Gordon Folland

Case Summary

On November 22, 1993, Gordon Folland went to a social gathering with his friend, Shawn Harris, at the latter’s residence. The two were helping Harris’ landlord, with whom Harris had been sexually involved, to paint the walls of her home. (This person’s identity is protected by a court-ordered publication ban. Below we refer to her as the complainant.)1

Folland, Harris, and the complainant socialized into the evening, drinking and painting. Shortly after midnight, the complainant got ready for bed, taking off her glasses and removing her hearing aid before going to sleep. Folland and Harris continued to drink in the living room.2

In the early morning hours, the complainant awoke to find a man sexually assaulting her. She placed her hand against the assailant and directed him to leave, in the course of which she identified him in the dim light as Folland. Shortly after, she went out to the living room, where Folland and Harris were sitting, and told them that she would call the police. Harris began to insist that it was he, not Folland, who had sexually assaulted her. He then tried to dissuade her from calling the police, becoming increasingly aggressive.3

Once police arrived, Harris told them he had sexually assaulted the complainant while Folland was asleep on the couch. However, Folland was arrested based on the complainant’s having identified him as the perpetrator. He cooperated with police and agreed to provide a DNA sample for forensic analysis.4

First responders took the complainant to the hospital, where a sexual assault kit was performed. Traces of semen were found on her underwear. In addition, police seized a pair of men’s underwear from her residence that also had traces of semen.5 Both samples were sent to the Centre of Forensic Sciences for DNA analysis. This testing excluded Folland as the donor, since his DNA did not match that found in the semen samples. The results were made available prior to Folland’s trial, but the Crown made no attempt to arrange DNA testing for Harris.6

Folland had at first believed that his friend would come forward to exonerate him, but Harris refused to do so. Folland’s defence lawyer then “repeatedly pressed” the prosecutor “to have the police conduct a fuller investigation of Harris’s role in the affair[,] and suggested to Crown counsel that he should call Harris as a witness at the trial so that the full story would be before the jury.”7 However, Crown counsel “rebuffed these attempts” in what the Court of Appeal would later describe as an “unhelpful and insulting” fashion.8 “As you are well aware,” he stated, “one of the responsibilities and duties of the Crown Attorney . . . is that we can only call those witnesses we consider credible. As a result of that I, unfortunately, am not in a position to call Mr. Harris.”9 The Crown told Folland’s counsel that “[y]ou, on the other hand, are not bound by the same moral constraints that we are and you may feel free to deal with Mr. Harris as you choose.”10 In the end, Harris did not provide DNA samples, nor did he testify at Folland’s trial.11

Folland took the stand and asserted his innocence, stating that he had fallen asleep on the couch and “woke[n] up to be told the police were coming to the house. He denied entering the complainant’s bedroom and he denied sexually assaulting her.”12

Folland was convicted of sexual assault in March 1995, after the jury had deliberated for a mere 90 minutes. He was sentenced to five years’ imprisonment.13 While in custody, Folland tried to seek treatment for his alcohol addiction, but was refused access on the grounds that he should be attending counselling for sex offenders instead.14 He was refused parole because the National Parole Board saw him as “in strong denial” based on his continued insistence that he was innocent.15

Folland spent two years and nine months in prison before he was released on bail pending appeal.16 Two of his friends had met Harris in a bar and persuaded him to spit into a tissue, which was sent for DNA testing at the Centre of Forensic Sciences.17 The test results confirmed that Harris was the source of the semen found on the underwear.18

In January 1999, the Ontario Court of Appeal overturned Folland’s conviction in light of this exonerating evidence and ordered a new trial. The court stated that “the failure on the part of both the Crown and defence to pursue further DNA testing before trial was unfortunate.”19

At a May 1999 court appearance before the trial judge who had imposed Folland’s sentence, the Crown announced that it would not proceed with a second trial. The judge apologized to Folland for the miscarriage of justice he had suffered.20

Folland sued the Ontario government as well as his trial lawyer (whom he alleged had been negligent in conducting his defence).21 The Province of Ontario agreed in 2006 to compensate Folland an undisclosed amount in regards to his wrongful conviction.22


[1] R v Folland, 1999 CanLII 3684 (ON CA) at p. 6 (PDF courtesy of CanLII) [R v Folland]; Folland v Reardon, 2005 CanLII 1403 (ON CA) at para 1 [Folland v Reardon].
[2] R v Folland, supra note 1 at pp. 6-7.
[3] Ibid. at p. 7.
[4] Ibid. at p. 8; Folland v Reardon, supra note 1 at para 13.
[5] Folland v Reardon, supra note 1 at para 14.
[6] Ibid.; R v Folland, supra note 1 at pp. 8-9.
[7] Folland v Reardon, supra note 1 at para 16; R v Folland, supra note 1 at pp. 15-16.
[8] R v Folland, supra note 1 at p. 16.
[9] Ibid.
[10] Ibid.
[11] Ibid. at p. 9.
[12] Ibid.
[13] Ibid. at p. 5; Jonathan Pyzer, “#wrongfullyconvictedwednesday Gordon Folland” (26 October 2016), Toronto Defence Lawyers, online: <https://www.torontodefencelawyers.com/wrongfullyconvictedwednesday-gordon-folland/> (accessed 21 January 2023) [Pyzer].
[14] Pyzer, supra note 13.
[15] Kirk Makin, “DNA casts doubt on conviction, court told” (2 December 1998), The Globe and Mail: A9.
[16] Folland v Reardon, supra note 1 at paras 1, 21.
[17] Pyzer, supra note 13; Folland v Ontario, 2003 CanLII 52139 (ON CA) at para 5 [Folland v Ontario].
[18] Folland v Reardon, supra note 1 at paras 17-19.
[19] R v Folland, supra note 1 at pp. 16, 22.
[20] Folland v Reardon, supra note 1 at para 20; Kirk Makin, “Wrongfully convicted has right to sue lawyer, court rules” (27 January 2005), The Globe and Mail: A9.
[21] Folland v Reardon, supra note 1 at paras 2, 21; Folland v Ontario, supra note 17 at para 24.
[22] Gabrielle Giroday and Bruce Owen, “Kyle Unger acquitted of teen’s 1990 slaying” (23 October 2009), Winnipeg Free Press, online: <https://www.winnipegfreepress.com/breakingnews/2009/10/23/unger-acquitted> (accessed 21 January 2023).

 

 

Case Details

  • Full name:

    Gordon Folland

  • Gender identity:

    Male

  • Race/ethnicity:

    Unknown

  • Age - at the time of conviction:

    42

  • Charges - specific offences:

    Sexual assault

  • Date of conviction:

    1995-03-16

  • Date wrongful conviction was overturned:

    1999-01-20

  • Sentence - total time served:

    02 years, 09 months, 00 days

  • Legal mechanism by which wrongful conviction was overturned:

    New evidence on first appeal

  • Status of alleged crime:

    Status Unknown

  • Compensation Received?

    Yes

  • Guilty plea?

    No

  • Cause(s) of wrongful conviction:

    Folland was wrongfully convicted of sexual assault despite DNA evidence establishing that his profile did not match that of samples obtained from the crime scene and complainant. His conviction was overturned when further testing proved that these samples matched the DNA of Folland’s friend – who had previously told police that he was the guilty party.