Time for a remedy for the wrongfully accused

In 1991 three children made grotesque allegations of sexual abuse against Anita and Dale Klassen, their foster parents. The children told police that their abusers had committed upon them, and had forced them to commit, various sexual acts. The allegations by each of the children were virtually identical. The children also detailed bizarre events including the mutilation and ritualistic killing of animals, dismemberment of babies and drinking of human blood. A Saskatchewan judge held children's allegations were so unbelievable as to be patently absurd, such that no reasonable person would have believed the accusations without corroborating evidence.

The allegations were, in fact, entirely false. But, before the accusations collapsed, the Klassens and some of their family had been prosecuted through the criminal courts and convicted. The convictions had been upheld in the Saskatchewan Court of Appeal.

As the Supreme Court of Canada said earlier this month, the Klassens " were the victims of a clear miscarriage of justice which undoubtedly had a devastating effect on their lives."

Nevertheless, when the Klassens' sued the prosecutor who put them through their ordeal the Supreme Court of Canada unanimously held the claim could not succeed. How can this be? You would think that for every legal wrong there must be a remedy; but that's not correct. In Canada there is no existing remedy for the harm caused by a wrongful conviction. It is time to consider creating a remedy.

Crown attorneys, the people who prosecute crime, can be personally sued for malicious prosecution. But to succeed in such a claim you have to show the Crown attorney acted maliciously. What the Supreme Court decided in Klassen was what amounts to malice.

Previously some Courts had found malice was not just a prosecution motivated by, say, personal hatred of the accused but included malice inferred from the fact that a prosecution was wholly without merit. Blindly prosecuting a hopeless claim might qualify as acting maliciously.

In Klassen the Court rejected this saying "Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice". In effect, prosecutors are entirely free in their discretion to prosecute.

While the requirement of actual malice may work an injustice in specific cases like Klassen, generally the immunity of Crown Attorneys makes sense. If Crown Attorneys are subject to suit whenever they lose a case they may hesitate to prosecute any but the strongest cases -- worse, they may hesitate to end a weak case for fear a withdrawal might encourage a claim.

Would anyone have the stomach to prosecute a wealthy businessperson for fraud if they knew they could be dragged through the Courts for years if they lost?

That said, where people are vindicated there should be some remedy.

Wrongful convictions, while rare, do occur. Wrongful accusations are not unheard of. Klassen is an example but there are others; the cases of Donald Marshall Jr., David Milgaard, Kyle Unger and Erin Walsh have all shown the fallibility of Canadian justice.

All these cases are linked by an exoneration but they are not all situations where there was prosecutorial or police misconduct -- sometimes they are just examples of an accused being in the wrong place at the wrong time. That said, in each case the wrongfully accused individual has suffered enormous financial and emotional harm. And while it doesn't make sense to have compensation come from the Crown Attorney who happened to prosecute the wrongfully accused does make sense for compensation to be available on a transparent and principled basis.

Where an individual has been fully exonerated for a crime they were accused of, and where the accusation did not come about because of some wrongdoing by the accused, it is appropriate for the accused to receive compensation for legal costs, lost income and some symbolic amount for solace. Such payments should be made administratively through the Provinces and could be similar in form to Workers Compensation -- it makes little sense to force the wrongfully convicted through the Courts again to get their compensation.

The amounts awarded would not be windfalls and would hardly be full compensation for the loss of time, money and enjoyment of life reputation but they would reflect society's recognition of a tragic error and that is better than what we have today.