Compensation for Wrongful Convictions in Canada

CJCCJ/Volume 63.3 (2021)

Compensation for Wrongful Convictions in Canada

By Myles Frederick McLellan
Chisinau: Republic of Moldova (EU). Europe Eliva Press. p. 327.

Have you ever tried putting yourself in the shoes of a person who has been convicted of a crime they did not commit? For many, immersing oneself in the shoes of the wrongfully convicted is an impossible task. It is likely difficult to envision this reality because much of society’s understanding of crime phenomena is shaped by sensationalized stories depicted in the news media, movies, and television shows. These sources of information are indeed successful in their ability to spark public emotion and increase awareness, but they also can oversimplify the complex realities of crime phenomena. The inability to understand the complex nature of wrongful conviction is a misjustice because it discounts the social, mental, physical, legal, and financial hardships faced by exonerees. The length of this book alone signifies just how complex it may be to address and overcome the legal and financial difficulties associated. The reader is provided with context when they learn that the social, mental, and physical impacts are not explored at length in this novel. It serves as a reminder that walking in the shoes of the wrongfully convicted involves navigating through unexpected terrain. The work of Myles McLellan captures the reader’s attention and sparks emotion as it highlights an insightful and necessary image about the complex realities of being wrongfully convicted.

McLellan’s work recounts wrongful convictions within Canada that have made national headlines, such as the case of David Milgard, Steven Truscott and Guy Paul Morin. Simultaneously, McLellan offers compelling statistics that do not make national headlines but should. In one year alone, from 2018-2019, it is estimated that 740 to 3,698 individuals were wrongfully convicted post-trial (pp.104-105). This statistic represents the number of wrongful convictions occurring post trial and does not encompass those that can occur pre-trial. Due to the prevalence of risk for wrongful conviction, it is necessary to become familiar with the availability of compensation.

We can all relate to a time when we felt a collective sense of anger towards the heinous actions of an offender or a deep sense of compassion for those victimized by senseless crimes. Because of one’s lived experiences, the term “victimization” can result in different meanings (Walklate, 2007, pp.26-28). The understanding of what it means to be victimized may be the result of a personal experience, it might also be from witnessing a stranger on the street being victimized by another stranger or learning about a time when a friend or a family member experienced harm at the hands of another human being. The point is, the wrongfully convicted are not the first to come to mind when we think about victims of crime. Yet, this kind of victimization requires public awareness because these individuals are victims of the same state whose primary duty is to uphold and protect their respective citizens’ rights, freedoms, and liberties. McLellan’s writing encourages readers to view exonerees in the same light that they might view any other victim by consistently highlighting the extent of negligence involved when the state fails to honour one of its primary responsibilities. All Canadians have been guaranteed these rights and freedoms since the Charter was first entrenched into Canada’s constitution in 1982. Almost four decades later, this document remains a fundamental component of societies’ functionality, which often overshadows the reality that these rights are not always guaranteed. McLellan uses the latter half of chapter 2 to illustrate this powerful rhetoric when he takes the reader through an in-depth exploration of the specific sections of the Charter that become gravely infringed upon when a miscarriage of justice takes place. Chapter 2 encourages readers to begin asking important questions about documents such as the Charter, by questioning whether the use of language, such as “guaranteed”, is appropriate when wrongful convictions demonstrate that these rights are not guaranteed.

Furthermore, the reader will likely begin posing similar questions related to the fundamental legal right known as the presumption of innocence. Being presumed innocent until proven guilty is one of many legal rights that the state must uphold in criminal proceedings. This obligation to protect and enforce these rights is known as due process. As McLellan so elegantly stated, “due process is in place to protect the factually innocent as much as it is to convict the factually guilty” (pp.23-24).

Further, McLellan reiterates throughout chapters two, five, and six that the purpose of due process is to act as a safeguard in preventing and eliminating mistakes at the hands of crown prosecutors and law enforcement officers. However, as the book progresses, it will become evident that due process is not bulletproof. Otherwise, there would be no necessity to write a book about compensating the wrongfully convicted.

Blame should not be put onto one sole part of the criminal justice system for the responsibility of convicting the innocent – whether it be the investigative failures of police officers, the inaccuracies of forensic evidence analysis, or a crown prosecutors’ negligence in their duties – the onus falls on all actors of the state to uphold the Charter rights and ensure due process. Though McLellan reiterates that each stage of the justice system poses a risk for miscarriages of justice to occur, chapter one directs the readers’ attention towards the peril associated with the investigative phase of the process. This is where a person’s vulnerability to harm is amplified. When harm is done to this extent, it is the belief that the state holds a responsibility to provide financial reparation for the harm they have caused. No amount of monetary compensation can make up for lost time or the trauma that results from being wrongfully convicted. Still, it does provide hope for exonerees that there is a possibility to begin rebuilding their future. However, as discussed in chapters three and four there are a gruelling set of criteria that must be met for compensation even to be considered. The state perpetuates further victimization by making the wrongfully convicted jump through hoops to prove their innocence so that they can meet the thresholds for remedy; “the obstacles in meeting this threshold exacerbate the travesty of wrongful conviction” (McLellan, 2021, p.106). This book reveals the unfortunate reality that proving innocence in the Canadian legal system is more of a burden than proving guilt.

The book is well organized and extremely thorough in that it allows the reader to begin by understanding how societies views and approaches to justice have progressed, what the states responsibility is, how state harm can be remedied, what one must demonstrate to prove innocence and finally, a comparative analysis of Canada to other countries internationally.

This book is best suited for those who have experience with legal terminology and an in-depth understanding of the justice process; furthermore, the reader must take an interest in understanding how precedent cases have shaped legal standards for dealing with wrongful convictions. More specifically, graduate students or legal scholars would have a deeper appreciation of the book’s content and more capability to understand its content. It may be helpful for lawyers conducting pro bono work for the wrongfully convicted, so they have an in-depth understanding of the existing avenues for financial redress. It might also be helpful for those proactive police officers. They are inclined to understand their agencies policies regarding individual liability while on duty related to miscarriages of justice. It might be a particularly challenging read for those just becoming familiarized with the legal system because the writing style and content is quite advanced. The well-rounded experiences of the author both in assisting the wrongfully convicted and working for other aspects of justice are shown through his ability to portray how each part of the legal process contributes to miscarriages of justice.

Though the primary purpose of this book was to discuss the process of financial compensation for exonerees, a limitation of the book is that it does not address the reality for an exoneree after receiving compensation. It leaves the reader with a series of questions about what life is like for exonerees post compensation? How many exonerees carry on to live a somewhat “normal” life? How does compensation help alleviate some of the social and mental hardships that exist, if at all? Can a numeric value ever truly remedy the wrong that has been done?

TAYLOR DUBE-MATHER (MA Student)
MA STUDENT, SCHOOL OF CRIMINOLOGY
SIMON FRASER UNIVERSITY