COMPENSATING INNOCENT PERSONS SENT TO PRISON

In 1969, I was approached by a member of the Ontario Legislature (Dr.Morton Shulman) about a problem he was trying to solve. One of his constituents spent almost two years in prison for a robbery he didn’t commit. The Supreme Court of Canada ruled that he should not have been convicted and he was immediately released from prison. The problem that both he and his member of the legislature had was that the man couldn’t get a job and he was living on welfare since his release three months earlier.  Every time he attempted to get a job, he had to explain what he had been doing for the previous two years. When he told them that he was in prison but had been released because the Supreme Court says that he was not guilty, those people who interviewed him still refused to hire him because he was still an ex-con.

The man was sent to me by the legislator and the man told me that he wanted his old job as a hospital orderly back but the hospital wouldn’t rehire him because he was an ex-con.

I contacted the hospital and spoke to the administrator and told him that if they didn’t rehire the man, I would personally use whatever influence I had to make sure that the hospital didn’t get any more funds from the Ontario government. Of course I was bluffing but he didn’t know that and the next day, they rehired the man.

The legislator called me and thanked me and then he asked me if I would be prepared to write a brief for his political party about the need to compensate innocent persons sent to prison. I told him that I would do it but that it would be better if I did it for the government. The reason why I wanted to do it for the government was that they would feel bound to bring about compensation for innocent people if they could say that it was their idea. He agreed that that was a better plan. I asked him if his party would support me on my brief. I told him that I would form a task force and would try and get a legislator from each of the three parties and experts in criminal law to join my task force. He called me back and said that his party was appointing him as a member of the task force. I contacted the party whips (party leaders in the Legislature) of the other two parties and they appointed a member from each of their parties to serve on my task force.

Now what I needed was to search for the brightest minds I could find to also serve on the task force. I found them and they were willing to serve on the task force. The task force comprised of three legislators, three criminal court judges, three highly reputable criminal lawyers, three law professors, a member of the Ontario Law Reform Commission and a former Solicitor General of Ontario. They were satisfied that I should be their chairman since they were too busy to take on that task but they would assist me with their ideas. As everyone knows, it is generally the chairman who does most if not all of the work and him or her who must prepare the report.

 I then contacted the Secretary of Justice for Ontario and told him that the task force was now ready to begin working on the brief. He asked me to submit the brief to him so that he would be prepared to discuss it in the legislature later. I told him that it would take me about two years to complete the task as I was working in a job that took much of my time. He said that was OK. He would wait for the brief.

The task force was called, The Committee for the Compensation of the Innocent.  As an interesting aside, none of us had any idea what was in store for us in the future but some had incredible futures waiting for them. One of the lawyers became a member of the Supreme Court of Canada and another lawyer became the Attorney General of Ontario and later, the Chief Justice of Ontario. The third lawyer became the first Ombudsman of Ontario. One of the legislators became a minister in the provincial government and another, a minister in the federal government. One of the law professors became a minister in the federal government and the man who was member of the Ontario Law Reform Commission became the chairman of the Federal Committee that governs the Canadian Security Intelligence Service. One of the judges was the judge in one of Canada’s notorious cases which prompted the government of Ontario to act on our recommendation that innocent persons sent to prison should be compensated. I later addressed the United Nations in UN conferences around the world and was the precursor of the UN bill of rights for young offenders and I also met with a member of the Palestinian Liberation Organization at the UN headquarters in Geneva and got a commitment from them that they would see that no further acts of violence were committed by Palestinians in future Olympic Games. They kept their word to me. I also brought in 24-hour duty counsel to Canada so that anyone arrested day or night would get free legal advice as soon as they were taken to a police station

I am now going to present to you a speech that I gave to an organization in the 1980s that will give you more information about what our task force had done to bring about compensation for innocent people and the difficulty I had in trying to bring compensation for innocent people who were imprisoned.

It has been sixteen and a half years since I addressed the Canadian Congress on Corrections and Criminology in Ottawa as the prime speaker on the subject of compensating innocent persons wrongfully convicted of crimes. At the end of my address, I said: "I am sure that  the  day  will  come  when  all  innocent  persons  will  be compensated.  What  I  am  not  sure  of  is,  whether  any  of us   here  today  will  be  around  to  see  the  compensation  dream materialize."

On March 18^th 1988, I was still around to see that dream become a reality. The federal government of Canada announced that it would award compensation of up to $100,000 for pain and suffering and an unlimited amount to cover the loss of past and future earnings, and for the loss of property.  Further, both the federal and provincial governments agreed to share the costs on a 50/50 basis.  Manitoba has had legislation in effect for several years that permits compensation for the innocent and some recent victims of a justice and police system gone wrong have also been compensated in Nova Scotia, British Columbia and Ontario.

Unfortunately in the past, not everyone was in favour of compensating the innocent. For example, on February, 23, 1973, while I was still the chairman of the Committee for the Compensation of the Innocent, I presented our report and draft legislation to John Kerr, the Secretary of Justice for Ontario.  Present at that meeting was Randall Dick, the Assistant Secretary of Justice and Arthur Wishart, the former Attorney General who at that time; was the Chairman of the Criminal Injuries Compensation Board and a member of my task force.  

 Randall Dick said; “A citizen of Ontario cannot expect to be compensated simply because he's been found not guilty of a crime, because being subjected to the judicial process even when innocent is part of the risks of being a citizen.”

 John Kerr said that he doubted that there were more than two persons per year that were ever wrongfully convicted in Ontario and that such a small number hardly merited special legislation which would compensate them.

Arthur Wishart on the other hand was in favour of such legislation.  In fact in a letter addressed to me on January 5, 1973, he said in part; “I am particularly interested in this proposed legislation since I noted that the draft Act for the assessment to be made by the Criminal Injuries Compensation Board.” unquote Shortly after he wrote that letter, he assisted our Committee on the wording of the final draft of the proposed legislation.

Allan Lawrence, when he was the Secretary of Justice for Ontario, suggested to me areas of concern that should be studied by our committee and after my address in Ottawa in September 1971 on the subject of compensation, he wrote me and said in part; “I feel this is an area which should be the subject of attention of the Minister of Justice (for Ontario) in a jurisdiction which has seen fit to implement a comprehensive Legal Aid Plan and a Criminal Injuries Compensation Board.”

I had a chance to talk with John Turner, the then Minister of Justice for Canada about the compensation issue after he heard my address in Ottawa and on December 2, 1972, he wrote me in part; “I can appreciate the force of the arguments which you make in favour of compensation to innocent victims of criminal litigation and it is a matter that has been under consideration in the department.”

After John Turner left his Ministry, Otto Lang took over that portfolio, and I wrote him twice and asked him if his Ministry would consider legislation to compensate the innocent. In his second letter to me of December 13, 1973,  he said in part; "As Minister of Justice, I am concerned with this very serious matter. As I have informed you in a previous letter of February 23, 1973, it is possible that in determining the future priorities of this Department, I shall initiate a study of the subject of compensation for the innocent victims of legal proceedings.”

Despite these promises, nothing was forthcoming so I discussed it with Justice Pat Hart, who was the Chairman of the Law Reform Commission of Canada and I asked him if he would study our Committee's report and draft legislation. He readily agreed to do so and within a year, his Commission prepared a report on the subject in which it said in part;

“When  a  prosecution  has  been  brought  and  it subsequently turns out that through no fault of the accused, he should never have been charged at all, justice demands that the status quo should be totally restored and in particular, he should be reimbursed for all the costs and expenses which he has properly incurred." unquote

When his report was published in the news media, John Kerr who was still the Secretary of Justice for Ontario said to reporters that he had read the report and was convinced that if such a plan was brought to Ontario, it would cause a big drain on the taxpayers of Ontario. When the reporters asked me for my thoughts on what Kerr had said, I said that it seemed strange that he told me a year earlier that he doubted that there were more than two persons per year that were ever wrongfully convicted in Ontario and that such a small number hardly merited special legislation which would compensate them.

My comment obviously embarrassed Bill Davis, the premier of Ontario so to shut me up; he offered (via the chairman of the Justice Committee of the Ontario legislature who was my next door neighbour) me a bone. The message was that if I say no more about John Kerr, he will replace him after the next election with Roy McMurtry (if he is elected) as the new Secretary of Justice for Ontario. Roy McMurtry was elected and as promised, Davis replaced John Kerr as the new Secretary of Justice for Ontario.

I was excited when Roy got elected and got the appointment since he had served as a member of the Committee and now compensation for innocent persons would come to fruition in Ontario; at least so I thought. Every once in a while I would pester him with one word, “WHEN?”

Despite Pat Hart’s report, there was not a sign of hope for anyone who could actually ask for compensation. Years went by and no-one in the provincial or federal governments did anything to bring about legislation to compensate innocent persons wrongfully convicted of crimes. I felt as if was like John the Baptist crying out in the wilderness to no avail.

When Roy McMurtry was a member of our Committee, he expressed concern about innocent persons serving time in prison for crimes they didn't commit. However, years later, he stated publicly that he couldn't remember endorsing our Committee's proposed legislation.

One time when I spoke to him in 1982 in his capacity as the Secretary of Justice, I reminded him of his support for the concept of compensation of innocent persons when he was with our Committee and he in turn suggested that I get the Criminal Lawyers Association to put forth a proposal for appropriate legislation. After meeting with Ron Thomas, the president of CLA, in May 1982, he agreed to urge his members to make such a proposal to McMurtry. Then McMurtry publicly announced in June of 1982, that he  would  recommend  that  a  study  paper  on  the  matter  be  prepared  by  his  Ministry.  All this time, innocent persons could be compensated by an Order in Council, but innocent persons in Ontario were still getting nothing.

McMurtry's proposal for the study paper on compensation came at a time when a nurse called Susan Nelles was suing him personally for malice in her world famous baby killing case in which she was accused of killing four babies in the Sick Children’s Hospital in Toronto. She was totally exonerated by Judge David Vanek (who was previously one of the three judges on my committee and whom I later argued law in front of him when I was practicing law and representing clients in his court) At about the same time, Clifton Stewart, a 22 year-old man in Toronto was acquitted of murder after serving 500 days in jail. He wrote Roy McMurtry asking for information about compensation. McMurtry suggested that Stewart consult a lawyer.          

Roy McMurtry must have realized that government of Ontario might be saddled with an enormous judgement against it if he was sued so the government settled the claim out of court and Susan Nelles was given a very large sum of money for having been put through the tribulation of a very protracted and grueling trial and then being declared not guilty of the charges.  Soon after that, people who were sent to prison and later found innocent were being compensated, not just in Ontario but elsewhere in Canada.  

A number of horrific cases had come to light in the last fifteen years which have demanded compensation for the wrongs done to innocent persons by overzealous and careless police officers and crown attorneys. It has become extremely difficult for both the provincial and federal governments to stand idly by as if no wrongs have been perpetrated upon those wrongfully accused, convicted and imprisoned.

In recent years, there has been growing recognition in Canada and elsewhere that persons who have been wrongfully convicted and imprisoned should receive compensation from the state. Despite this growing recognition, there is no legal entitlement in Canada to compensation either by way of a statutory scheme or otherwise. Absent any recovery through a civil action, a wrongfully convicted person can obtain compensation only through an ex gratia payment by the state a payment that, by definition, is made voluntarily, as a favour out of kindness or grace, and without recognition of any legal obligation.

Some of the cases of injustices brought down upon the heads of the innocent in recent years, involve; Donald Marshall, of Nova Scotia, who served 11 years in prison for the alleged murder of a friend; Norman Fox of British Columbia, who served 8 years for the alleged brutal rape and mutilation of a woman, was forced to undergo a trial being written about throughout the world.  All three were victims of stupidity or maliciousness or both on the part of the police and the crown attorneys. All three have since been compensated although it's doubtful that the compensation they received is sufficient to compensate for the hurt, the shame and the sense of frustration felt by them when they knew that the might of the police and the crown attorneys was crushing them.

Fortunately, there have been very few who have spoken out against compensating innocent persons and those that have, have been crown attorneys. One of those crown attorneys was a member of our Committee. York Crown Attorney Peter Rickaby dissented strongly from our draft of the proposed legislation. He said that after 15 years of close connection with the criminal courts, he could count on the fingers of one hand, the persons accused of offences who were genuinely innocent. When he gave me that opinion back in 1971, I did some statistical research on acquittals in Ontario and discovered that of the 38,921 indictable charges laid in Ontario in 1969, as many as 5,452 resulted in acquittals. That's more than a thousand for each finger of his hand each year and in 15 years; that came to over 16,000 for each finger.

Then one of the most foolish statements made by anyone was made by Mr. Rickaby when he publicly stated in May of 1982, that the use of “mistaken identity” and a “perfect alibi” as used in the draft legislation was mushy.

 In 1981, Francis Memauer of Milwaukee was freed after serving eight years of a 60-year sentence for rape and murder. The court heard evidence that his photograph was shown to another rape victim and she stated that he was the man who raped her. Later, evidence was to show that he was entirely innocent of both crimes and that he had been convicted as a result of ‘mistaken identity’.

Leroy Pass of Daytona Beach was released from prison in October 1976 after serving 18 years for a robbery he didn't commit. Witnesses wrongfully identified him also.

Perhaps Mr. Rickaby was not aware of the case of Watson Sweezie of Newmarket, Ontario who when seeing a stolen blue car racing through the streets of that city, subsequently pulled alongside of a police cruiser to report it. The next day, the police arrested him after accusing him of being the man who was the driver of the stolen car. They said that they had 23 witnesses. He was able to prove in Court that he was in Toronto at the time the car was stolen but when he told that to the police, they told him to tell it to the judge. He did and on the recommendation of the crown attorney, the case was dismissed.

The greatest insult to innocent victims came from Mr. Rickaby when he asked a rhetorical question publicly in May 1982;  ``Should the public now be required to compensate those who are too lazy or stupid to pursue the civil avenues open to them as a result of false arrest or malicious prosecution?"  I don't think it was his finest hour.                                          

The federal government's belated response to that rather embarrassing question was a resounding, YES! All I could say to the government of Ontario was; “Get with it.” It did─ eventually.

End of speech

 In the Thomas Sophonow wrongful imprisonment case, the Honourable Peter Cory (he had previously served as a member of my committee) recommended that Mr. Sophonow receive $1.75 million for non-pecuniary damages, despite the fact that the Guidelines mandate a cap on such damages in the amount of $100,000. In refusing to apply the mandated cap, Justice Cory noted that the Guidelines are not an act of the Legislature but simply a guideline which means that the award can go beyond the upper limit mandated by the guideline. For example, a young man in Saskatchewan was convicted of murdering a young woman on the street and sentenced to life in prison. He served 24 years in prison and all that time, he and his mother maintained that he was innocent. When the police finally found the real murderer, the man serving the life sentence was released. He was later awarded $10 million dollars as compensation.

My call in the wilderness had been heard. Fortunately all of the members of The Committee for Compensation for the Innocent saw our work come to fruition before some of them later passed on.