National Post

Page URL: http://www.nationalpost.com/commentary.asp?f=990527/2646851

Thursday, May 27, 1999

Do the wrongfully accused deserve compensation?
Jail time should not determine if Crown makes restitution

Paul Starkman
National Post

Last week, the National Post reported that David Milgaard reached a $10-million settlement with the Saskatchewan government for his wrongful conviction for murder and the 23 years he spent in prison. Mr. Milgaard, who was 17 years old at the time he was convicted, certainly deserves to be compensated, but what about those individuals who are wrongfully accused of a criminal offence, without spending time behind bars?

At a recent criminal law conference, Justice Michael Moldaver of the Ontario Court of Appeal suggested that people who are wrongfully accused should receive compensation because of the "horrendous impact" the criminal justice system has on their lives and finances. Judge Moldaver is to be congratulated for suggesting that legislation should be enacted to provide compensation in the "clearest of cases," that is, where the charges have been dismissed or withdrawn by the Crown.

The main issue is what represents a "clear case" and how to determine the amount of compensation to be paid by the government. Judge Moldaver's comments suggest that compensation should be made available to a wrongfully accused even in the absence of malice or negligence on the part of the Crown. In other words, where the prosecution was unable to obtain a conviction because of insufficient or questionable evidence, a form of no-fault legislation would kick in. At a minimum, such a system would provide compensation for an individual's legal expenses incurred during a criminal proceeding. For example, a "clear case" would exist where the wrongfully accused was charged with a serious criminal offence, punishable by at least two years in prison and where the charges were stayed by the Crown or dismissed at the conclusion of a trial. So, dismissal of the charges on a pretrial motion or for procedural reasons would not result in compensation under no-fault legislation. This would include serious criminal code offences such as murder, manslaughter and sexual assault.

This recommendation would bring the criminal process in line with the civil courts in Canada, where legal expenses are usually awarded to the successful party by rules of civil procedure and at the discretion of the judge hearing a case. Moreover, the prospect of the government having to pay legal expenses to a wrongfully accused might, in certain cases, act as a deterrent for the Crown to proceed with criminal prosecutions based on faulty investigative work and questionable evidence.

Some would argue this proposal could limit the Crown's ability to lay charges and enforce the law. While the Crown should not be unreasonably constrained, I believe in the paramountcy of the right of a citizen not to be subject to a criminal proceeding of dubious merit, which, in most cases, inevitably leads to that person's financial and emotional ruin.

Today, in the absence of no-fault legislation, a person who has been wrongfully accused or convicted can only seek damages in the civil court -- a long and expensive process.

Two weeks ago, John Munro, a former federal cabinet minister, received a settlement of $1.4-million from the federal government in his 10-year civil action alleging unfounded charges of corruption and fraud laid by the RCMP. In the wake of his settlement, Mr. Munro suggested there should be a system of compensating the wrongfully accused, so they would not be forced to spend their life's savings, as he had, seeking compensation through the courts.

Currently, compensation awarded by the civil courts is based on fault. In the case of a wrongfully accused, this means negligence or malice on the part of the prosecution and investigators. Malice is said to exist when the prosecution proceeds without reasonable grounds and acts for an improper purpose, that is, for reasons other than enforcing the law. But malicious prosecution is difficult to prove because it requires evidence of improper motives and intentions on the part of the prosecution and/or the investigating officials.

The right of a wrongfully accused to sue for malicious prosecution is firmly a part of Canadian law. The courts have been ambivalent about whether the prosecution may be liable for negligent prosecution and investigation, in particular, where the negligence may have been contributed to by malice or improper motives. In other words, civil liability may exist where the prosecution has been reckless in a criminal prosecution because the prosecution is motivated by malice.

What are the pros and cons of providing compensation to a wrongfully accused on the basis of negligence? The argument for rejecting negligence claims against the government by wrongfully accused persons is that it would adversely affect the ability of the attorney-general to exercise his or her discretion in the enforcement of the law and, thus, open the floodgates to a multitude of frivolous claims against the government. On the pro side, a person who has been wrongfully accused suffers a significant loss of reputation, as well as financial and emotional ruin. If the government will not enact no-fault legislation to compensate the wrongfully accused, then, at the very least, it should be clear in law that a wrongfully accused can sue the Crown for damages on the basis of negligence.

Paul Starkman is a lawyer with Osler, Hoskin & Harcourt in Toronto.

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