Author: Sarah Harland-Logan

Introduction

Anthony Hanemaayer was only 19 years old when he was arrested for a crime that he did not commit.

At 5:00 a.m. on September 29, 1987, an unknown man broke into a Scarborough residence and entered a 15-year-old girl’s bedroom. He jumped on top of her, put his hand over her mouth, and threatened her, claiming that he had a knife. This story could have had a much more tragic ending if not for the fact that the girl’s mother heard noise coming from the bedroom. She went to investigate and discovered the intruder. The seconds stretched out as they stared at each other. Finally, the man leapt up, raising his hands in the air and “roaring like a lion.” He fled.[1]

Of course, the girl’s mother wanted to find out who had attacked her daughter. Although she had not been wearing her glasses at the time, she believed that she vividly recalled the attacker’s features – “6’0″, 170 lbs., slim build, 19 years of age with sandy brown, wavy hair, wearing a black leather jacket and blue jeans.” She thought that she would be able to identify him again, especially since as a teacher, she had to put names to her students’ faces. Even though she did not have any evidence for this belief, she decided that the perpetrator must have been “keeping watch on her daughter and on the house and likely was working on construction in the area.” She began her own investigation, driving around to look at nearby construction sites, and then phoned one of the companies whose employees were working in the area. It seemed that she might have a promising lead when someone in the personnel department said that her description of the unknown assailant sounded a lot like Anthony Hanemaayer, one of their employees. The girl’s mother called the police to let them know about the lead.[2]

Over the next several weeks, the girl’s mother continued to work with police. Two months after the break-in, she picked out Anthony’s picture from a photo line-up – though she would later testify that this picture was the least sharp out of every picture she viewed. As a result of these investigations, Anthony was arrested on December 18, 1987.[3]

Anthony’s Guilty Plea

After Anthony’s arrest, the Crown twice offered him a deal that would have guaranteed him less jail time in exchange for a guilty plea. But since Anthony knew he was innocent, he refused both deals, trusting that the truth would be enough. However, when the victim’s mother identified him as her daughter’s attacker, she was so persuasive in her testimony that he realized that he would probably be found guilty, even though he had done nothing wrong. His lawyer had informed him that if he were found guilty at trial, he would likely go to prison for 6-10 years. In other words, he could wind up spending his twenties behind bars.[4]

On the second day of his trial, Anthony finally succumbed to the pressure to plead guilty in exchange for less prison time. It had become clearer and clearer to him that he would be found guilty at the end of his trial. His lawyer advised him to accept the Crown’s latest offer instead: if Anthony would plead guilty, he would receive less than two years in prison. Frightened and feeling hopeless, Anthony accepted this deal and agreed to plead guilty to a crime he did not commit.[5]

On October 18, 1989, Anthony entered his guilty plea. He was sentenced to two years less one day of imprisonment. Anthony served eight months of this sentence before being released on parole. Since he had also spent eight months in pre-trial custody, Anthony spent a total of sixteen months in prison, despite being innocent.[6]

Paul Bernardo’s Confession

As of October 17, 2005, police had reason to suspect that notorious serial killer Paul Bernardo was the real culprit. On this date, Bernardo’s lawyer emailed a member of the Toronto Police Sex Crimes Unit, listing 18 sexual assaults and other offences that Bernardo had committed and that he believed had not been solved. After interviewing Bernardo in April 2006 and conducting a follow-up investigation, police concluded that it was indeed Bernardo, not Anthony Hanemaayer, who had attacked the young girl. There was abundant evidence to support this conclusion. Bernardo had been living only two blocks from the girl’s home, and the time and place of the assault fit the profile of the “Scarborough Rapist” (later revealed to be Bernardo), who had preyed on many women in the area. Bernardo also recalled stealing the license plate from the victim’s family’s car. The plate read “KAR KAR,” and he had planned to present it to his wife and future co-accused, Karla Homolka, believing it would make the perfect gift.[7]

The officers who followed up on Bernardo’s confession later wrote that “Paul Bernardo is the person responsible for committing this offence… [He] provided accurate details of the offence, details that would only be known to the person responsible for committing [it].” Inexplicably, however, police never told Anthony what had happened, and neither the police nor the Crown attempted to rectify their horrific mistake.[8]

A Miscarriage of Justice

The miscarriage of justice that Anthony had suffered could easily have stayed hidden forever. Fortunately, AIDWYC lawyers James Lockyer and Joanne McLean realized what had happened to Anthony while they were reviewing disclosure that they had received on behalf of Robert Baltovich, another wrongly convicted person. While looking through these materials, James and Joanne discovered that Paul Bernardo had confessed to the crime for which Anthony pleaded guilty.[9]

AIDWYC contacted Anthony in late 2007, and informed him that Bernardo had confessed to the crime that Anthony spent 18 months in jail for. AIDWYC officially took Anthony’s case in early 2008.[10]

With AIDWYC’s help, Anthony filed an application with the Ontario Court of Appeal explaining that he wanted to present fresh evidence to the court – Bernardo’s confession and the follow-up police investigation – which would prove that he was innocent. The Crown agreed that given this compelling new evidence, Anthony should be acquitted. As Crown counsel Howard Leibovich put it, “The fresh evidence points to only one conclusion,” that “Paul Bernardo committed this attack.”[11]

The Court of Appeal agreed, too. The judges stated that “the fresh evidence proves beyond doubt that … [Anthony] did not commit the offences to which he pleaded guilty,” and that it was “profoundly regrettable that errors in the justice system led to this miscarriage of justice and the devastating effect it has had on Mr. Hanemaayer and his family.” Moreover, the Court commented that “the story of how that happened is an important cautionary tale for the administration of criminal justice in this province.”[12]

Anthony was acquitted on June 25, 2008 – over 20 years after his arrest for one of Bernardo’s many crimes.

Causes of Anthony’s Wrongful Conviction: Incorrect Eyewitness Identification

Anthony’s wrongful conviction had many causes, the most important of which was the heavy reliance on the victim’s mother’s eyewitness testimony. Many people believe that eyewitness testimony is very credible but witnesses make incorrect identifications at an alarmingly high rate. The judges who acquitted Anthony noted that “mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions.” In fact, of the Innocence Project’s first 225 exonerations of people who were wrongly convicted in the US, “77% of the convictions had been based on mistaken eyewitness identification.”[13]

The Court of Appeal noted that confident eyewitnesses – such as the victim’s mother in this case – are not necessarily more accurate than witnesses who are less certain:

We now know that the homeowner was mistaken. No fault can be attributed to her. She honestly believed that she had identified the right person. What happened in this case is consistent with much of what is known about mistaken identification evidence and, in particular, that honest but mistaken witnesses make convincing witnesses. Even the appellant, who knew he was innocent, was convinced that the trier of fact would believe her. The research shows, however, that there is a very weak relationship between the witness’ confidence level and the accuracy of the identification.[14]

One of the factors that can lead to a confident, but wrong, eyewitness identification is the fact that people “have a difficult time keeping track of where they have seen someone.” Since Anthony was working at a nearby construction site shortly before this crime was committed, it is possible that the victim’s mother actually saw him at his workplace.[15]

In addition to the unavoidable frailties of eyewitness testimony, flawed police techniques for obtaining this evidence also played a part in Anthony’s wrongful conviction. The victim’s mother was given a photo array – i.e., several photos presented at once – rather than a sequential line-up, where the images are presented one at a time. This technique is dangerous, since the eyewitness may “choose the picture from the array that is the best fit,” even if none of the photos match the real perpetrator. Compounding the problem was the fact that, as noted above, Anthony’s photo was the blurriest in the set. This type of difference between one person’s photo and the others can “cause misidentifications because the person who stands out is more likely to be picked by the identifying witness.”[16]

Furthermore, the police officers who conducted the line-up knew that this blurry photo was Anthony’s, and that Anthony was their current suspect. Line-ups ought to be conducted by members of the force who do not have this information, because officers who know the “right” answer may transmit this information to the eyewitness, whether they mean to or not. Furthermore, once the victim’s mother had identified Anthony from the line-up, the officers informed her that she had “indeed identified the suspect.” As the Court of Appeal judges noted, “This could only serve to increase her confidence in the accuracy of the identification and thus make her a more convincing witness.” As discussed previously, the victim’s mother’s convincing testimony played a key role in Anthony’s decision to accept a plea bargain for a crime that he did not commit.[17]

Causes of Anthony’s Wrongful Conviction: Other Factors

Another cause of Anthony’s wrongful conviction was his decision to plead guilty even though he knew he was innocent. Although plea bargains are an important part of the justice system – they allow cases to move through the courts efficiently and often provide a good resolution for everyone – it is important that prosecutors only make plea agreements that are fair to the accused. The current version of the Crown Policy Manual followed by Ontario prosecutors specifies that “Crown counsel must not accept a guilty plea to a charge knowing that the accused is innocent,” or when part of the alleged offence could never be proven in court.[18]

That said, there is no suggestion that the prosecutors who offered Anthony the various plea deals acted improperly, since police were not yet aware that Paul Bernardo had actually committed the crime. However, once police officers had become aware of this information, it was their duty to inform the Crown prosecutors, who would then have been obligated to disclose the information to Anthony. As the Supreme Court set out in its 1991 decision R v Stinchcombe, the Crown is required to disclose any and all relevant documents to the defence (except for a few types of privileged materials). The fact that Anthony was kept in the dark about the existence of information that exonerated him is both shocking and disgraceful.[19]

Wounds that AIDWYC Cannot Heal

Although Anthony has finally been able to clear his name, he will never be able to return to the life that was destroyed by his wrongful conviction. After his acquittal, Anthony described the past twenty-one years of his life as “one living hell ride.” His marriage had broken apart, not able to withstand the stress created by his arrest and the prospect of standing trial. As Anthony’s lawyer explained, Anthony has also “had to live with, and to some extent continues to live with, the label of being a convicted sex offender, even though he’s innocent.” He has endured humiliation and psychological trauma as a result of his horrific experiences.[20]

Despite the irreparable damage that Anthony has suffered due to his wrongful conviction, the Ontario Attorney General announced in January 2010 that the province would not offer him any compensation, perplexingly claiming that compensation should be available only in “rare, unusual cases.” Anthony is now suing the Attorney General, the Toronto Police, and his former lawyer, alleging that all three parties acted improperly. As of November, 2013, his lawsuit is still in progress.[21]

Anthony has bravely chosen to share his thoughts on his wrongful conviction in the following poem, which expresses the real price of this miscarriage of justice far better than anyone else could.[22]

“What Life?”

By Anthony Hanemaaye

How can a “sorry” reverse the damage done?
Within my being, the demons and ghosts haunt my every breath, my every action
A life of irreversible suffering, nightmares, shattered dreams

Faith, a distant hope, an illusion
What will become of me?
How can I look to the future when I have been robbed of all that I was?
All that I could have become?

Alone.
My life stolen.
Where is the justice? How can a wrong be made right?

Faith and hope no more, separated from society
Withdrawn from the world, so I ask
“What life?”


[1] R v Hanemaayer, 2008 ONCA 580 at paras 3-4, 234 CCC (3d) 3 [R v Hanemaayer]; AIDWYC, “Anthony Hanemaayer: ‘One Living Hell-Ride’” (Spring 2009) Vol 10 AIDWYC Journal, p 9 [AIDWYC Journal]; Kirk Makin, The Globe and Mail: “Man Accused in Sex Attack to be Acquitted.” June 25, 2008: http://www.theglobeandmail.com/news/national/man-accused-in-sex-attack-to-be-acquitted/article675110/ [Makin, “Acquitted”].

[2] R v Hanemaayer, supra note 1 at paras 4-5; AIDWYC Journal, supra note 1; Makin, “Acquitted,” supra note 1.

[3] R v Hanemaayer, supra note 1 at paras 6-8.

[4] R v Hanemaayer, supra note 1 at para 11; AIDWYC Journal, supra note 1.

[5] Ibid.

[6] R v Hanemaayer, supra note 1 at paras 2, 10; CBC News: “Wrongly Convicted Man Sues Police Lawyer.” July 7, 2010: http://www.cbc.ca/news/canada/toronto/wrongly-convicted-man-sues-police-lawyer-1.952639 [“Wrongly Convicted Man Sues”].

[7] R v Hanemaayer, supra note 1 at paras 12-13; CityNews.ca Staff: “Hanemaayer Lived Kafkaesque Nightmare for 20 Years.” June 25, 2008: http://www.citynews.ca/2008/06/25/hanemaayer-lived-kafkaesque-nightmare-for-20-years/ [“Kafkaesque Nightmare”].

[8] R v Hanemaayer, supra note 1 at paras 12-13; AIDWYC Journal, supra note 1; Sam Pazzano, Toronto Sun: “Wrongly Convicted Man Sues for 1.1 Million.” July 6, 2010: http://www.torontosun.com/news/torontoandgta/2010/07/06/14628946.html.

[9] R v Hanemaayer, supra note 1 at para 13; AIDWYC Journal, supra note 1.

[10] AIDWYC Journal, supra note 1; “Wrongfully Convicted Man Sues,” supra note 6.

[11] R v Hanemaayer, supra note 1 at paras 15, 20; Tracey Tyler, The Star: “Crown Backs Exoneration.”June 24, 2008: http://www.thestar.com/news/ontario/2008/06/24/crown_backs_exoneration.html.

[12] R v Hanemaayer, supra note 1 at paras 2, 20, 30.

[13] Lauren O’Neill Shermer, Karen C Rose & Ashley Hoffman, “Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony” (2011) 27 Journal of Contemporary Criminal Justice 183 at 183, 185; R v Hanemaayer, supra note 1 at para 29.

[14] R v Hanemaayer, supra note 1 at para 21 (emphasis added).

[15] Ibid at para 22.

[16] Ibid at paras 23-24.

[17] Ibid at paras 25-26.

[18] “Resolution Discussions,” March 21, 2005, Crown Policy Manual. Available at: http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/ResolutionDiscussions.pdf

[19] R v Stinchcombe, [1991] 3 SCR 326, [1991] SCJ No 83.

[20] R v Hanemaayer, supra note 1 at para 11; “Wrongly Convicted Man Sues,” supra note 6; AIDWYC Journal, supra note 1; Ciara Byrne, The Star: “Man Jailed in Crime Bernardo Confessed To Sues for 1.1M.” http://www.thestar.com/news/ontario/2010/07/07/man_jailed_in_crime_bernardo_confessed_to_sues_for_11m.html[“1.1 M”].

[21] Win Wahrer, “Anthony Hanemaayer: Life After Exoneration” (Fall 2011) Issue 3 AIDWYC Quarterly, p 2 [AIDWYC Quarterly]; “1.1 M,” supra note 20; “Wrongly Convicted Man Sues,” supranote 6.

[22] Reproduced from AIDWYC Quarterly, supra note 21.