National Post

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Monday, May 03, 1999

Top Judge calls for damages for wrongly accused
'Horrendous impact'

Cristin Schmitz
Southam News

OTTAWA - An appeal court judge who is considered to be a contender for the Supreme Court of Canada has made an impassioned plea for governments to compensate people who are "wrongfully accused" of crimes.

Citing the financial and emotional toll on innocent persons dragged through the criminal process, Mr. Justice Michael Moldaver, who sits on the Ontario Court of Appeal, said society should consider compensating not just those who are wrongfully convicted, but those who are wrongfully accused.

"While I suspect that at one time or another most people have contemplated the prospect of being a victim of crime, few have perceived that the victimization might take the form of a false accusation, and even fewer have taken the time to consider the horrendous impact that the laying of a criminal charge can have on a person's life," Judge Moldaver told a weekend criminal law conference in Ottawa.

The criminal law expert is often cited as a potential successor to Supreme Court Justice Peter Cory, who is retiring on June 1.

"The time has come to bring home to the public, in no uncertain terms, just how destructive the criminal process can be, and why it is that those who have been wrongfully accused of a criminal offence may be deserving of some measure of compensation even though they have been acquitted after trial, or even though the charges may have been withdrawn somewhere throughout the process."

The judge lauded recent measures to recognize the anguish suffered by victims of crime and their families.

"Surely within the context of these progressive and enlightened measures it is time to recognize that sometimes the person most victimized by the criminal process is the accused."

A leading Toronto criminal defence counsel before his 1990 appointment to the bench, Juge Moldaver said false criminal charges can result in "overwhelming" psychological torment. "These include fear of losing one's spouse and family, fear of seeing the hurt in a child's eyes when they are cruelly tormented in the school yard and told that their father or mother is a criminal."

A wrongful prosecution can also lead to job loss and "economic ruination," the judge said. Fees for lawyers and other experts can run from several hundred dollars to hundreds of thousands of dollars, depending on the complexity and seriousness of the charges.

People often mortgage their homes or borrow money from family and friends. Some lose their entire life savings.

"In the midst of this emotional upheaval the individual must somehow continue to function," Judge Moldaver said. "Life must go on. Daily living expenses continue. The children must not be deprived of food. The mortgage payments must be maintained. The finance company will tolerate no delay in monthly payments."

The judge said "hardworking, middle-class Canadians" are particularly hard hit since they are not eligible for legal aid. "How can these people hope to generate the funds necessary to defend against a criminal prosecution, the cost of which may be staggering? How can these people hope to stand up to the state with its unlimited resources, and if they are successful, what chance do they have of being paid back?"

In the absence of police malice or gross negligence in the prosecution, innocent people who are acquitted aren't even awarded their legal expenses, he said.

Even apologies are rare, he added. "Perhaps even worse, human nature being what it is, the individual will often continue to bear the stigma of guilt, despite the not guilty verdict of the judge or jury."

Judge Moldaver did not advocate compensation for everyone who is found not guilty, acknowledging that not all people who are acquitted are necessarily innocent.

But in clear-cut cases of innocence -- for example, when a person is prosecuted based on the faulty evidence of eyewitnesses -- some compensation is merited, even if only to pay for the legal expenses, he argued.

"Legislation would be needed to define which individuals might be deserving of compensation, and under what circumstances . . . But the difficulties I believe are not insurmountable, and to shirk the responsibility, or to procrastinate any longer, will only serve to compound our complicity in the furtherance of an injustice which in my view has existed far too long."

In an interview, Juge Moldaver said the problem was brought home to him 20 years ago when he successfully defended a murder charge against a 48-year-old woman whose husband was stabbed through the heart as she defended herself against his attack.

"She essentially lost everything, in terms of her entire life savings. She lost her home . . . and she was ultimately acquitted with not even an apology," he said.

Judge Moldaver's speech to the Defence Counsel Association of Ottawa-Carleton garnered a standing ovation. But few lawyers were optimistic that the judge's suggestion would be implemented, given the current "law and order" political climate.

William Carroll, senior defence counsel, said in an interview, "The problem is that the public is firmly of the belief that everyone charged with an offence must be guilty of something.

"There is a blind faith, which is totally unjustified, that if anyone is acquitted, it must be on the basis of a technicality or one of those 'damned Charter arguments.' "

Mr. Carroll estimates that the majority of cases that go to trial end in acquittals.

"Our provincial governments are highly unlikely to implement a system to assist somebody who has been accused of wrongdoing," he predicted. "They took away the ability to defend these people by cutting legal aid. Do you think that they are going to seriously think about compensating them for being wrongly charged?"

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