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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON DEC. 5, 2001

A tribute to the wrongfully convicted




Last week Stephen Truscott began his latest campaign to have his 1959 murder conviction set aside, this time with the support of the Association in Defense of the Wrongfully Convicted. He hopes to join the ranks of, Donald Marshall Jr, Benoit Proulx, Guy Paul Morin, David Milgaard and Thomas Sophonow

Not only did they and their loved ones shoulder intense personal grief, each one of the wrongful convictions undermined the very cornerstones of our criminal justice system's legitimacy. At the time they were convicted the true perpetrators went free. Even though the many safeguards in our criminal justice system make it one of the best and most transparent in the world, wrongful convictions, as rare as they may be, will continue to be a fact of life.

System not perfect

No criminal justice system is or can be perfect. Short of never charging a suspect or of increasing the threshold of proof to impossible levels, no judicial system can ever provide absolute guarantees against miscarriages of justice. Just as crime itself reflects the many weaknesses of human nature, the same must be said of the various ingredients that are conducive to breeding miscarriages of justice. They include false accusations, misleading police investigative work, inept defense counsel and forensic experts, blatant legal errors by judges, misperceptions by Crown prosecutors of their role, inadequate identification evidence, perjury and the list goes on. While in the past government officials were inclined to scoff at allegations of wrongful convictions, their attitudes have changed dramatically, particularly since DNA technology began presenting irrefutable evidence to the contrary.

By investing the Minister of Justice with specific powers regarding applications for the mercy of the Crown, even our lawmakers formally recognized the likelihood of innocent persons being wrongfully convicted. This exceptional procedure, which Stephen Truscott is banking on, was intended to rectify situations involving innocent persons who remained convicted of serious crimes despite having exhausted all conventional avenues of appeal.

Under very stringent conditions this procedure enables the Minister of Justice to order a new trial or an appeal.

Little chance of success

However, without new and reliable evidence that was not considered by the courts or that was only discovered after the appeal process, applicants have little chance of success. Out of the 50 to 70 requests the Minister of Justice receives each year, very few ever meet the requirements.

This explains why in 1989, the Royal Commission on the Donald Marshall, Jr. Prosecution and again this year, retired Supreme Court justice Peter Cory, both recommended that the federal government create an independent agency so as to facilitate the reinvestigation of alleged cases of wrongful conviction. They proposed the U.K. model, which has the power to not only assess and investigate, but also to recommend cases for new trials or judicial review, without government consent.

Special unit

So far, the government is prepared to consider the creation of a special investigation unit with new powers to subpoena evidence and witnesses. Although federal and provincial governments have demonstrated a willingness to compensate victims of miscarriages of justice, the process is long and tedious and more often than not depends on whether the government is willing to launch a public inquiry.

Most of the delays in obtaining compensation are due to the lack of any compensation system for wrongful convictions. So far, the Charter of Rights and Freedoms has not helped in this regards. A claim for damages under the Charter would be difficult to prove. Any plaintiff would have to establish that according to general constitutional law the State committed an unjustifiable breach of one of his Charter rights and that the only appropriate remedy is financial compensation. Furthermore, not every wrongful conviction can be attributed to a Charter right breach. Under ordinary law there are other problems, not the least being the requirement to prove that some government official, whether it be a police officer or prosecutor, was at "fault " and therefore was the cause of his or her wrongful conviction.

Assigning blame

In order to get around the problem of trying to attach blame to individuals involved in the criminal justice process, many countries around the world have acknowledged that compassable harms can result from the conviction and imprisonment of the factually innocent. On May 19, 1976 Canada added its signature to The International Covenant on Civil and Political Rights (ICCPR) and the Optional Protocol. Although they both recognize the right of persons who have been wrongfully convicted to be compensated there are strict conditions. Every applicant must have had his criminal conviction reversed or have been pardoned and in both instances on grounds that a new or newly discovered fact showed conclusively that there had been a miscarriage of justice.

When it comes to determining the amount of compensation a number of factors are always considered. Since the right to be free is at the core of every democratic country it necessarily follows that the length of time spent in prison is a key factor. Equally relevant are the overall conditions of each prison institution where the person served his sentence together with their cumulative effect on the person.

In 1990, Mr. Justice Evans, in the Commission of Inquiry Concerning Adequacy of the Compensation Paid to Donald Marshall, JR. recognized approximately 20 factors. They included loss of liberty, loss of reputation, humiliation and disgrace, pain and suffering, loss of enjoyment of life, loss of potential normal experiences, such as starting a family and loss of civil rights.

To these factors, 11 years later, Justice Cory added in the Thomas Sophonow case the effects of post acquittal statements by public figures, police officers and the media.

Right to compensation

If Stephen Truscott's murder conviction is ever set aside there will be no dispute as to his right to obtain compensation. Whoever would be appointed to recommend the appropriate amount, will no doubt side with the sentiments expressed by retired justice Cory in the case of Thomas Sophonow.

" Thomas Sophonow has been deprived of his liberty; he has suffered irreparable damage to his reputation by being branded as a murderer; and he has suffered and will continue to suffer from the symptoms flowing from a post-traumatic stress disorder. "

While our governments deserve to be applauded for showing greater concern with the problem of the wrongly convicted and imprisoned, much of the credit should be attributed to the courage and perseverance of individuals such as Donald Marshall Jr., Benoit Proulx, Guy Paul Morin, David Milgaard and Thomas Sophonow as well as their sponsors.