Why is it that it’s politicians who make decisions on whether to compensate the wrongfully convicted?
Of course, victims in those cases may launch a wrongful prosecution or negligent investigation lawsuit. Success in such a lawsuit, however, will be rare as a result of the recent Supreme Court of Canada decisions in
Miazga v. Kvello Estate and
Hill v. Hamilton-Wentworth Regional Police Services Board.
In Miazga, the court ruled that even in cases where there has been a clear miscarriage of justice, the accused must establish “affirmative evidence of malice or improper purpose.” Malice doesn’t exist merely because the prosecutor didn’t have reasonable and probable grounds to proceed with the case.
There is no liability flowing only from “inexperience, incompetence, negligence or even gross negligence.” Instead, the accused must establish “that the prosecutor deliberately intended to subvert or abuse the office of the attorney general or the process of criminal justice.”
The Hill decision illustrates how difficult it is to succeed in a negligent investigation action. In that case, the police investigation was far from perfect. They botched a photo lineup composed of Jason Hill, a young aboriginal, and 11 white males and failed to reinvestigate after receiving new information.
But the top court ruled the law doesn’t demand a perfect investigation, just a reasonable one. Minor mistakes and misjudgments can happen.
With prospects for compensation via the courts unlikely, the decision on whether to compensate the wrongfully convicted lies with the government. Let’s look at how the Ontario government dealt recently with the wrongful convictions of Robert Baltovich and Anthony Hanemaayer.
Baltovich was granted a new trial and acquitted in 2008 after serving almost nine years for murder. Still, nobody in authority declared him factually innocent. Instead, the court acquitted him after the Crown decided not to enter any evidence at Baltovich’s new trial.
Since there was no DNA test to exonerate him - police never found the deceased’s body - and the evidence didn’t clearly point to the guilt of someone else, establishing factual innocence would be next to impossible. In addition, courts aren’t in the business of making declarations of innocence in Canada.
There’s no verdict of innocent. While a not-guilty verdict leaves the accused with a presumption of innocence, that’s not the same thing as a declaration of such.
Hanemaayer pleaded guilty to a sexual assault he didn’t commit and received a sentence of two years less a day. The victim’s mother wrongly identified him. Facing that evidence and after receiving legal advice, he chose to plead guilty as part of a plea bargain.
But surely, the government shouldn’t hold that against him.
Hanemaayer didn’t plead guilty with any malicious intent. Rather than face the risk of what seemed to be a certain conviction and a severe punishment, he chose to enter into a plea bargain and receive a much shorter sentence. Doesn’t our criminal justice system encourage such arrangements?
So do either Baltovich or Hanemaayer deserve compensation? It seems not. According to Attorney General Chris Bentley, the government provides compensation only in “rare, unusual cases.” Even though it has recognized Baltovich and Hanemaayer’s wrongful convictions, they won’t receive any compensation as doing so would be “inappropriate.”
But what makes it inappropriate? Do we blame Hanemaayer for not risking a lengthy prison sentence? Do we withhold compensation to Baltovich because DNA hasn’t proven his innocence? Is it because he received a fair trial? But that shouldn’t matter. Don’t most wrongful convictions result from a fair trial?
Isn’t it time that we set up an independent body to deal with miscarriages of justice? Most provinces already provide some form of compensation for victims of crime. In Ontario, the Criminal Injuries Compensation Board can award up to $25,000 as a lump-sum payment to provide compensation for pain and suffering.
While that’s a ridiculously low amount that hasn’t been adjusted since 1971, there’s no reason why we shouldn’t have an independent body dealing with the wrongfully convicted. After all, aren’t they also victims of crime?
Having such a body would remove many malicious prosecution cases from the courts, thereby saving money and scarce judicial resources. More importantly, it would provide victims of wrongful convictions with some element of justice without having to depend on the whims of the government.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is
[email protected].
