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In Depth

James Driskell

James Driskell

July 18, 2006

James Driskell James Driskell

After more than a decade in prison and mounting evidence that he was wrongfully convicted in the murder of Perry Harder, the legal ordeal of James Driskell appears to be over.

But he hasn't been exonerated.

The federal justice minister, Irwin Cotler, ordered a new trial for Driskell, following a review of his case. The inquiry started on July 18, 2006.

Cotler concluded that "a miscarriage of justice likely occurred in Mr. Driskell's case. Accordingly, I am granting the application for ministerial review, quashing the conviction, and ordering a new trial."

Despite that, the Manitoba government has decided there's no point in holding a new trial.

Robert Morrison, the prosecutor in charge of the case, said the Crown's case has been "undermined and weakened." Morrison says it's not likely Driskell would be convicted again, so he has asked that the charge be stayed.

Driskell was convicted of first-degree murder of Harder in 1991. Harder had been shot several times in the chest in September 1990 in Winnipeg. Driskell � his friend � was sentenced to life in prison.

Harder's body was found in a shallow grave near some railway tracks. Police alleged Driskell killed Harder because he implicated Driskell in a series of break-and-enters. Driskell has denied any involvement in the crimes.

The Association in Defence of the Wrongly Convicted said a Winnipeg RCMP lab incorrectly analysed three hairs used to convict Driskell. An RCMP analyst testified at the trial the hairs, found in Driskell's van, belonged to the victim. The prosecution argued Driskell murdered Harder in the van.

According to test results from the Forensic Science Services in England, none of the hairs belonged to Harder.

The association also said a key police witness, Ray Zanidean, tried to recant his testimony. Zanidean, a convicted thief, got a deal from the police in which they paid his legal fees and covered mortgage payments that were in arrears. The Crown gave him a $20,000 payment to assist him in starting a new life.

At the heart of Driskell's case is a Winnipeg Police Service review from 1993. Jack Ewatski, now Winnipeg's police chief, is one of its co-authors. He has refused to open up the report.

In March 1993, then-chief Dale Henry launched the review after media reports questioned Driskell's guilt. Ewatski, then an inspector, has said the 175-page report was classified as an internal investigation and was never intended to be released to the public.

Ewatski has emphasized the report did not uncover any evidence "which would lead us to believe James Driskell was not involved in the death of Perry Dean Harder."

The report was finally released Nov. 24, 2003. It revealed several key facts:

  • The existence of a taped statement by an inmate at Stony Mountain Penitentiary, who contacted the RCMP and alleged a Winnipeg police officer was involved in the Harder murder.
  • Confirmation that police negotiated a witness protection agreement for key Crown witness Zanidean that was never revealed to the jury.
  • Zanidean was going to be charged with arson in Swift Current, Sask., and the Winnipeg police made a secret promise to him that he would not be charged for that.

The report also said its authors "have formed the opinion the issue of Ray Zanidean's involvement in the police investigation and subsequent conviction of Jim Driskell remains a concern. Numerous questions were identified relating to his evidence, the circumstances surrounding his involvement with the police as well as his credibility."

Zanidean and the actions of the police service will be among the issues examined at the Winnipeg-based inquiry. Commissioner Patrick LeSage will hear five weeks of testimony from people involved in the Driskell case. He will look at the role of police, the actions of the Crown and questions of disclosure in the case. LeSage has also been asked to determine when someone has met the threshold to be declared factually innocent or wrongly convicted.

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