Case Summary
On November 17, 1990, a woman in Quebec was raped in her home after being grabbed at knifepoint on her way home from a church service.1 She reported it to the police a few days later, describing a man roughly 6-feet tall, weighing around 175 pounds, with a dragon tattoo on one arm and a snake tattoo on the other.2 In her report, the victim also mentioned that the rapist left fingerprints in her house, and that there was sperm on her bedsheets, but police did not visit the crime scene until seven days later.3
The investigation record does not indicate that the police ever attempted to collect any physical or DNA evidence from the victim’s home.4 She would later state that she did not get the impression that the police believed she had been assaulted at first; it was only when she selected what she believed to be a photo of her attacker in a photo lineup that they began to show interest in the case.5
While police initially showed the victim a photo lineup of potential suspects who had similar arm tattoos to those she described in her first statement to police, the victim could not find her attacker in the lineup.6 On the basis of a theory that the tattoos could have been fake, police then included non-tattooed men in their investigation.
The police published a sketch based on the victim’s recollections. They then received an anonymous tip that Michel Dumont resembled the portrait which the victim has said only bore a 70-80% likeness to her rapist.7 An officer went to Dumont’s home and photographed him.
When the same police officer who took the tip and was investigating the case showed the victim a second lineup with ten photos (including Dumont’s photo which listed his height and weight as the same size the victim recalled her attacker to be, despite Dumont standing at a much smaller 5-foot-8 and 120 pounds), the victim selected Dumont’s photo. She said she thought he had longer hair at the back and wished to see Dumont’s hands.8 The police never followed up on this condition on the victim’s identification of her attacker. Dumont lived in the victim’s neighborhood and they shared the same doctor so this may also have influenced the victim’s identification of Dumont.
With this conditional identification, police narrowed in on Dumont as their main suspect. Despite searching for it, the knife used in the attack was never found.9 Police arrested Dumont within a month and charged him with sexual assault, uttering death threats, kidnapping, and forcible confinement. Dumont had no criminal record and no tattoos.
Based on her experience with the photo lineups, the victim identified Dumont as her attacker both at the preliminary inquiry and trial. These were “in dock” identifications of the accused.
Dumont stood trial over two days, April 30 and May 4, 1991. His defence included five alibi witnesses who established Dumont was playing cards at the time the crime occurred and evidence that it would have been impossible for him to commit rape as he suffered from erectile dysfunction stemming from a disc hernia he suffered from a workplace accident. Nevertheless, Dumont was convicted on all counts and sentenced to 52 months in prison.10
An appeal to the Quebec Court of Appeal was dismissed unanimously in 1994. That Court concluded that the only issues involved assessment of evidence and noted that Dumont had not presented expert evidence regarding his erectile dysfunction.11 In this initial appeal, Dumont’s lawyer did not try to present new evidence that the victim had made a sworn declaration to prosecutors in 1992 that her identification of Dumont was incorrect after she observed someone in a video store who was “la copie exacte” or exact copy of her rapist even though she wrongly thought Dumont was in prison at this time.
There is some dispute over whether Dumont’s lawyer received this new evidence though a trial judge in a civil suit had determined that he did. It is also not clear whether he made a tactical decision not to raise the new evidence given that Dumont was free at the time and had a card for the video store or whether he simply forgot the prosecutor’s disclosure of the new evidence. The Crown also did not raise the victim’s statement about the video store on appeal on the basis that it was not a certain recantation and that a police investigator believed that the victim may have seen Dumont in the video store. When Dumont was released from prison after serving 34 months of his 52-month sentence in 1997, he was greeted both by his wife and the victim who said after seeing Dumont in person and shaking his hand that “yes more than ever” she was sure that he was not her rapist. She told reporters: “I can't believe that an individual with so much goodness in his face has had to do years in prison when it's not him, when I have said it's not him.”12
The victim stated five more times publicly, including twice on television, that she did not believe that Dumont was her attacker.13
Armed with the recantations by the victim, Dumont’s wife, Solange Tremblay, applied to the Minister of Justice to inform him that her husband had been convicted of a crime he did not commit.14 It took her three years to assemble all the legal documents required to apply to the Minister of Justice for a second appeal. The Minister of Justice appointed an investigator who took yet another recantation by the victim of her evidence at trial on February 10, 1998. Minister of Justice Anne McLellan referred the case to the Quebec Court of Appeal for a second appeal in October 2000. The verdict was delivered in 2001: it decided that the victim’s statements exculpating Dumont were admissible, and that no reasonable jury could convict him with the statements as evidence. As such, the Court acquitted Dumont of all charges. Its judgment, however, did not apologize to Dumont or declare him to be innocent.15
The Province of Quebec and Canada refused Dumont compensation despite the fact that on the eve of a 2009 civil trial, the city responsible for the police service involved settled by giving Dumont an undisclosed sum. In 2005, a spokesperson for the federal government explained that it did not settle with Dumont because “the Court of Appeal does not say he is innocent. It says he should not have been convicted. You know, there are many court cases where people are acquitted for all sorts of reasons.” As Dumont explained at the start of his failed battle for compensation: “I experienced one injustice, and now I am living another.”16 After a five-day civil trial (three days longer than his criminal trial), a judge rejected Dumont’s lawsuit claiming $2.5 million against the Quebec and federal governments.
The Quebec Court of Appeal dismissed Dumont’s civil appeal. He had failed to establish that the prosecutors acted in bad faith with respect to the complainant’s 1992 statement, or establish a lack of disclosure or a culpable failure to conduct additional investigation. It stressed “it was only after the ruling dismissing the appeal in 1994 that the victim affirmed publicly and with increasing conviction that she was mistaken about the identification of Mr. Dumont, with the result that the case was referred to the Court in 2001 and acquittal ensued.”17 The Court of Appeal held that if there was clearer evidence of Dumont’s innocence, such as DNA evidence, the prosecutor would have had to raise it on appeal even if the accused failed to do so but determined that in the circumstances that prosecutor was not at fault in assuming that the accused had made a tactical decision not to raise the video store incident in the 1994 appeal.
The Court further decided that the federal government was not liable because “prison authorities have no power to assess the guilt or innocence of inmates or alter judicial decisions on the basis of their subjective assessment of the situation of an inmate”, and there was no violation of Dumont’s Charter rights because Canada had not incorporated the right to compensation in Article 14(6) of the International Covenant of Civil and Political Rights when “a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.”18 The federal government was also not at fault because the trial judge rejected Dumont’s claims that, as a convicted sexual offender, he was assaulted by other inmates, on the basis that there was no record of such assaults in his files and that he was one of 75 offenders out of 500 inmates held at the medium security penitentiary in Cowansville, east of Montreal.19
Dumont said that he was beaten at least five times by inmates in Cowansville because he was a sexual offender and he refused to go into solitary confinement for his own protection because as he said “if you go into hiding, you have something to hide.” Eventually, however, things got better and “when it became clear that I was innocent, a prominent biker gang member, who was the leader of the inmates, came to apologize for the beatings. I'm still waiting for the government to apologize, however."20 Dumont asked the Supreme Court of Canada for an additional appeal but it refused and, following usual practice, gave no reasons for its decision.
Michel Dumont and Solange Tremblay then brought a successful complaint to the United Nations Human Rights Committee which found a violation of the right to compensation under Article 14(6) of the International Covenant on Civil and Political Rights and the right to an effective remedy under Article 2(3) of that Convention. The Committee concluded that Canada “is obliged to provide the author [Dumont] with an effective remedy in the form of adequate compensation. The State party is also required to ensure that similar violations do not occur in the future.”21