The loss of innocence and the pursuit of compensation for the wrongly convicted

Unlike the United Kingdom and a majority of the United States, there is no legislated right to compensation for wrongful convictions in Canada. 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 and a Charter breach, or the highly-politicized exercise of mercy by a government to make an ex gratia payment. While the State’s failure to prove guilt in the criminal justice process as a fundamental operation of the presumption of innocence should provide relief to an accused in the pursuit of financial redress from a wrongful conviction, the requirement that evidence of factual innocence be adduced is a burden few can meet. While the Supreme Court of Canada has taken a broader approach than other common law jurisdictions in allowing law suits to proceed seeking compensation against police, the Crown and crown counsel, the legal doctrines applied have been questionable. The Court has utilized tenets embodied in corrective justice models employing issues of fault, deterrence and vicarious liability which have severely limited recovery for a plaintiff who cannot prove the requisite level of neglect or malfeasance. It can be argued that the more principled approach would be one appropriate to the arena of public law employing distributive justice and strict enterprise liability. The question becomes who should bear the burden of the harm of a wrongful conviction: the individual as the victim of the criminal justice system, or the State, as the party who inflicted that harm.