James Morton: A remedy for the wrongfully convicted

National Post: http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/11/20/james-morton-a-remedy-for-the-wrongfully-convicted.aspx

James Morton: A remedy for the wrongfully convicted

In 1991, three Saskatchewan children made grotesque allegations of sexual abuse against their foster parents, Anita and Dale Klassen. 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. Many years later, a Saskatchewan judge would conclude, in retrospect, that the children’s allegations were so unbelievable as to be patently absurd.

The allegations were, in fact, entirely false. But, before the accusations collapsed, the Klassens and some of their family were prosecuted and convicted. The convictions were even 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, that same Supreme Court unanimously held the claim could not succeed.

How can this be?

Readers might 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 changing that.

Crown attorneys, the people who prosecute crime, already can be personally sued for certain kinds of particularly outrageous prosecution. But to succeed in such a claim, a plaintiff must show that the Crown attorney acted maliciously. This is why the Supreme Court sided with the Klassens’ prosecutors: however grave the underlying injustice, the high court did not find evidence of prosecutorial malice.
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But when people are convicted, and then vindicated, there should be some remedy.
Wrongful convictions, while rare, do occur. 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 involve a wrongful conviction. But they don’t all necessarily involve 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 a non-malicious Crown attorney who happened to prosecute the wrongfully accused, it does make sense for compensation to be available on a transparent and principled basis from government more generally.

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.

Just ask the Klassens.

National Post

James Morton is a lawyer with Steinberg Morton Hope and Israel LLP, a past president of the Ontario Bar Assocation and teaches evidence at Osgoode Hall Law School.