Innocence compensation: the private, public and prerogative remedies.

• Author: Mclellan, Myles Frederick

There is no doubt that the issue of wrongful convictions has grown in public awareness over the past twenty-five years. There is no legislated right to compensation in Canada, however, for those who have suffered tremendous personal and financial damage as a result of a wrongful incarceration. The available remedies include the expensive and time-consuming routes of litigation for malicious prosecution, negligent investigation, a Charter breach, a petition to a United Nations Human Rights Committee or the highly politicized exercise of mercy by government to make an ex gratia payment. Except for the very few, none of these remedies are effective. The need is great to employ a specialist tribunal that provides accessibility and transparency within a reasoned legislative framework.

Il est incontestable que l'opinion publique a ete davantage sensibilisee a la question des condamnations injustifiees depuis ces vingt-cinq dernieres annees. Il n'existe toutefois encore aucun droit legifere a une indemnisation au Canada pour ceux et celles qui ont subi, sur les plans financier et personnel, les lourdes consequences d'une incarceration injustifiee. Parmi les recours a leur disposition, notons les voies couteuses et longues des actions en poursuite malveillante, en enquete negligente, en violation de la Charte, ou le depot d'une petition aupres d'un Comite des Nations Unies sur les droits de la personne ou encore l'exercice hautement politise consistant pour le gouvernement a effectuer un paiement a titre gracieux (ex gratia). Hormis de tres rares exceptions, aucun de ces recours n'a montre son efficacite. On constate donc la necessite de mettre sur pied un tribunal compose de specialistes en mesure d'offrir aux personnes concernees a la fois accessibilite et transparence dans un cadre legislatif raisonne.

Table of Contents I. INTRODUCTION II. CROWN LIABILITY--GENERALLY III. PRIVATE LAW REMEDIES A. Malicious Prosecution B. Negligent Investigation IV. PUBLIC LAW REMEDIES A. International Human Rights B. Constitutional Tort (Charter Damages) V. CROWN PREROGATIVE--GENERALLY" A. The Prerogative of Mercy B. The "Ex Gratia" Environment IV. CONCLUSION I. INTRODUCTION

Few things have the prospect of being more destructive to an individual's way of life than a mistaken accusation of criminality, a wrongful conviction or a false imprisonment. While an eventual exoneration can be sweet relief from a devastatingly personal experience, more often than not, the recently acquitted additionally need the means to make their way forward. Most unfortunately, the available remedies in Canada to compensate miscarriages of justice are overwhelmingly inadequate. The federal, provincial and territorial governments in this country have proven loath to accept responsibility for errors in their administrations of justice. (1) Upon release, a person victimized by a miscarriage of justice will face the prospect of mounting an action for relief against the state, thereby engaging yet another battle requiring resources that the exonerated very likely do not have.

The aim of this article is to provide an overview of the various avenues the wrongly convicted in Canada have to pursue compensation in order to recover the losses caused by what are widely acknowledged as systemic errors in the criminal justice system. The terms "wrongful conviction" and "miscarriage of justice" will be used interchangeably, (2) and are best described here as a set of legal circumstances leading to an exoneration, which can occur at a number of points in the criminal justice process:

1. Before trial when the charges are withdrawn, dismissed or stayed (usually but not always after a preliminary inquiry); (3)

2. At trial where there is an acquittal;

3. After a conviction but on a successful appeal; or

4. After all appeals have been exhausted and on a successful application to the Minister of Justice under section 696.1 of the Criminal Code. (4)

   There are various civil avenues of possible financial recovery found in the tort claims of false imprisonment, malicious prosecution, negligent investigation and relief by way of an action for breach of a constitutional right. There is also the option of applying to the executive of the government responsible for a miscarriage of justice for an ex gratia payment under guidelines adopted for that purpose. Lastly, a petition for relief to the United Nations Human Rights Committee is available. In this regard, Canada as a nation has recognized the right to compensation for a miscarriage of justice as a party to the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant). (5)

   The prospects for recovery in private law actions are daunting. Firstly, the claimant needs to have sufficient funds to mount an action against the appropriate level of government. The plaintiff will find herself or himself in a faceoff against the strength and comparatively unlimited resources of the state. More importantly, meeting the test for entitlement to damages may well preclude recovery for a great many of those asserting their claim. The torts of malicious prosecution and negligent investigation will be examined in this regard.

   With respect to relief in the field of public law, actions for damages arising out of Charter (6) breaches give rise to a relatively new remedy in tort. It has been suggested that, in other jurisdictions, there is the prospect for constitutional damages to be awarded as an acknowledgment of an accused breach of "liberty interests." (7) The right not to be falsely condemned is met with the corresponding right to compensation for failure to protect this right. Lastly, the non-statutory compensation scheme operating at the federal, provincial and territorial levels of Canadian government is reviewed in light of the constitutional convention to compensate the wrongfully convicted by means of the exercise of the royal prerogative of mercy. It will be seen that while it is the operation of this scheme that has led to the well-publicized awards in the millions of dollars for wrongly convicted persons such as Steven Truscott, (8) Thomas-Sophonow (9) and David Milgaard, (10) the remit for its operation is so unreasonable and restrictive that it offers relief to an infinitesimal few.

   2. CROWN LIABILITY--GENERALLY

      During the Middle Ages in England, there was no formal procedure for suing the Crown. (11) The only recourse for a person seeking redress of a wrong committed by the Crown was to petition the King. A petition that asserted a legal claim against the Crown came to be called a "petition of right." If the King gave his consent and endorsed the petition "flat justitiae"--let right be done--the matter could be tried in the ordinary courts. However, if the King refused his consent, the Crown could not be sued. A significant immunity that remained in favour of the Crown in the face of a petition of right was that it did not permit the Crown to be sued in tort. This was based upon the maxim "the King can do no wrong." The United Kingdom was the first common law jurisdiction to do away with this immunity by virtue of the Crown Proceedings Act, 1947. (12) The fundamental principle animating this enactment was Dicey's equality principle. (13) Public persons are to be treated in the same way and in accordance with the same rules as private persons. This relaxation of the law of Crown immunity became the catalyst in Canada and its provinces over the ensuing three decades for passage of similar legislation. (14)

      The wrongly convicted may bring a private law action for damages under the torts of false imprisonment, malicious prosecution and negligent investigation. There are, however, numerous barriers to a successful suit. One scholar's view is that these torts:

      ... are of little use to the wrongly convicted. A person may be wrongfully convicted without malice or improper motive, and even if such elements could be proven, the fiscal and temporal costs of pursuing a tortious action may be prohibitive, especially if the plaintiff has already borne other losses while imprisoned. (15) The torts of malicious prosecution and negligent investigation have received the imprimatur of the Supreme Court of Canada (hereinafter referred to as the "Court", unless indicated otherwise). The separate action for false imprisonment, while available for a wrongful detention, is exceptionally limited in its scope. False imprisonment must arise from the infliction of bodily restraint, which is not expressly or impliedly authorized by law. If the state bodily restrains a person, it is almost invariably done pursuant to a statutory or regulatory authority, and therefore liability will not lie.

   3. PRIVATE LAW REMEDIES

      1. Malicious Prosecution

         The rationale of the cause of action for damages for malicious prosecution is that the Court's process has been abused. The requisite elements of establishing this tort have been well settled for more than a century. The Court's decisions that constitute the aggregate of the law in this field are Nelles, (16) Proulx (17) and Miazga. (18)

         The centrepiece of malicious prosecution jurisprudence is Nelles v Ontario, decided in 1989. (19) In considering the appeal, Justice Lamer set out the necessary elements of the tort, each of which must be established by the plaintiff in order to succeed in a malicious prosecution action:

         (1) the proceedings must have been initiated by the defendant;

         (2) the proceedings must have terminated in favour of the plaintiff;

         (3) there must be an absence of reasonable and probable cause for the defendant's conduct; and

         (4) there must have been malice, or a primary purpose other than that of carrying the law into effect. (20)

         The most recent decision of Miazga, for all intents and purposes, can be seen as the closing of the door to the availability of damages for this intentional tort, although to a great degree the substantive law on the essential elements has not...