Ottawa Citizen
Wednesday, December 19, 2001

$1.1M award for false conviction

Alberta man jailed 5 years for rape he did not commit

Janice Tibbetts
The Ottawa Citizen

The Calgary Herald
Herman Kaglik stands outside his Airdrie home. Mr. Kaglik was wrongly convicted of rape and served almost five years in prison. He was awarded $1.1 million by the federal government.
 
In one of the largest wrongful conviction settlements awarded in Canada, the federal government has quietly paid $1.1 million to an Alberta man who spent more than four years in prison for a rape he didn't commit.

In a case that has received virtually no publicity, Herman Kaglik was exonerated by DNA evidence of the violent sexual assault of his niece.

"Thank God for science," the 44-year-old father of five said yesterday in a telephone interview from his home in Airdrie, near Calgary.

The settlement is in the same league as those awarded to Donald Marshall and Guy Paul Morin, two men who were wrongly imprisoned for murder. But unlike Mr. Kaglik, their plights were well publicized, as were their protracted fights for compensation.

Mr. Kaglik was a 35-year-old plumbing and heating contractor living in Inuvik, N.W.T., when he was convicted in 1992 of raping his 37-year-old niece. After serving more than a year of a four-year sentence, he was hauled back before the courts for a second trial after his niece levelled more rape charges. Another six years were added on to his sentence, and he served 52 months before he was finally cleared.

Mr. Kaglik's settlement, which he received at around this time last year, is revealed in the 2000-2001 federal public accounts as a single entry under payments for the wrongly accused. The award also includes an undisclosed amount to cover legal fees.

His lawyer in his behind-the-scenes battle for compensation was Hersh Wolch, who represented David Milgaard in securing $10 million, the biggest award for a wrongful murder conviction in Canadian history.

Mr. Wolch said Mr. Kaglik's settlement is the largest for a wrongful conviction for something other than murder.

"There haven't been that many altogether and this is certainly significant," Mr. Wolch said.

An aggravating factor for the judge who sentenced Mr. Kaglik was his failure to confess, a refusal that he said made prison life unbearable, because he fought daily with other prisoners who insisted he come clean.

"It was a daily grind of fighting for your life and trying to convince people you were innocent," Mr. Kaglik said. "Every day I was in there I did that. I didn't care if I got killed."

He spent much of his time writing and telephoning lawyers trying to get them to take his case. Finally, a DNA test of a semen sample taken six years earlier proved in 1998 what he knew all along -- he was innocent.

It's a fact that his niece had admitted to police a year earlier when she was dying of cancer, but her confession never saw the light of day, Mr. Kaglik said. She died soon afterwards, and although she had once produced evidence of semen on her panties, it is now believed that no rape occurred.

Mr. Kaglik said his life after leaving prison three years ago has been scarred by divorce, inability to trust people or hold down a steady job.

"The money has made life easier, but it certainly hasn't brought back the happiness I had before I was charged," he said.

Mr. Wolch, who has lobbied the federal government for several settlements for wrongful conviction, said a general rule is that there must be hard proof of innocence.

"Being found not guilty is not going to get you an award. It's factual innocence that seems to be the guideline," he said. "I have had other wrongfully convicted people who have served many years in jail and were set free, but there has still been some doubt as to whether they are totally innocent."

Department of Justice spokesman Patrick Sharette confirmed that few applications for compensation succeed.

Mr. Wolch helped Mr. Milgaard in his battle for compensation from the federal and Saskatchewan governments after he spent 23 years in prison fighting to clear his name in the murder of Saskatoon nursing assistant Gail Miller. He also was exonerated by DNA evidence.

Mr. Kaglik's compensation package is in the same range as others who were jailed for murders they did not commit, including the $1.25 million awarded to Guy Paul Morin, another accused killer cleared by DNA of the murder of his nine-year-old neighbour.

Donald Marshall, a Nova Scotia Mi'kmaq who served 11 years after being convicted of a 1971 murder, received a package that works out to more than $1 million but is based on how long he lives. He was released after another man confessed to the crime.

An inquiry report recently recommended that Thomas Sophonow should receive $2.6 million for a wrongful murder conviction that left him "psychologically scarred for life."

Mr. Sophonow, 48, was imprisoned for almost four years for the 1981 murder of 16-year-old Barbara Stoppel in Winnipeg. Police now have another suspect.

Others who have received compensation include:

- Richard Norris, the Brampton, Ont., man who was awarded $507,000 in 1993 after spending eight months in jail for a sexual assault he didn't commit. A decade after the attack, a friend confessed to Mr. Norris that he had committed the crime;

- Norman Fox, who was sentenced to 10 years in Vancouver for rape and related offences. He was granted a pardon in 1984 after new evidence indicated he had been mistakenly identified and he was given $275,000 in compensation;

- Wilfred Truscott, who was convicted and sentenced to 18 months' imprisonment in 1984 in Alberta for assault and mischief by causing damage to personal property. It was later discovered that the complaint had been fabricated and the Alberta government awarded him $36,000 in 1986.

© Copyright 2001 The Ottawa Citizen