Wrongly convicted also victims: Shanoff

Source: Toronto Sun
OK, so the system didn’t work very well.

We, not only charged you with an offence you didn’t commit but we also convicted you. It happens. So, you spent a few years in prison and were labelled a criminal.

We can’t give you the years back. We can’t put you back where you would have been had you not been wrongly convicted.

Oh, I see, you want financial compensation.

Well, according to Ontario Attorney General Chris Bentley we only do that in “rare, unusual cases.”

So even though it’s been recognized that Robert Baltovich and Anthony Hanemaayer had been wrongfully convicted they won’t receive any compensation. Providing them with compensation would be “inappropriate.”

What makes it inappropriate? Who knows?

Perhaps it’s inappropriate because Hanemaayer pleaded guilty to a sexual assault he didn’t commit. But surely that shouldn’t be held against him. He didn’t do this with any malicious intent. Rather than face the risk of a conviction and a lengthy sentence he chose to enter into a plea bargain and receive a much shorter sentence.

Doesn’t our criminal justice system encourage plea bargains, even by the innocent?

And what about Baltovich? He served almost nine years for murder, was granted a new trial and later acquitted in 2008.

Perhaps it’s inappropriate to give him compensation because he was never actually declared innocent. Instead, he was acquitted after the Crown decided not to enter any evidence at Baltovich’s new trial.

Unless you’ve been exonerated by a DNA test or the evidence clearly points to the guilt of another, it’s difficult to establish innocence.

Courts aren’t in the business of making declarations of innocence in Canada. The available verdicts are guilty and not guilty.

Perhaps we should let the civil courts decide the compensation issue. Sorry, that’s unlikely to lead to much justice because it’s nearly impossible to win a malicious prosecution case now that the Supreme Court of Canada has ruled that even in cases where there has been a clear miscarriage of justice a plaintiff must establish “affirmative evidence of malice or improper purpose.”

I doubt either Hanemaayer or Baltovich could establish malice or an improper purpose.

This could be unsettling for the many victims of disgraced pathologist Dr. Charles Smith. He’s the pathologist whose “expert” evidence led to several convictions that have already been reversed.

Will the attorney general turn down their requests for compensation? How do their cases differ from Hanemaayer’s or Baltovich’s? Didn’t Smith’s victims all receive fair trials?

Isn’t it time we set up an independent body to deal with miscarriages of justice?

Most provinces already provide some form of compensation for victims of crime. In Ontario, the Criminal Injuries Compensation Board can award up to $25,000 as a lump sum payment to provide compensation for pain and suffering.

While that’s a ridiculously low amount and hasn’t been adjusted since 1971(!) there’s no reason why we shouldn’t have an independent body dealing with the wrongly convicted. After all, aren’t they also victims of crime?

Having such a body would remove many malicious prosecution cases from the courts thereby saving money and scarce judicial resources.

More importantly it would allow victims of wrongful convictions to some element of justice without having to depend on the whims of a politician.

It isn’t sufficient to say we have remedied the wrongful convictions of Hanemaayer or Baltovich by removing their convictions. We now know they were wrongly convicted and imprisoned. They deserve to have a fair hearing to determine their entitlement to compensation and if compensation is warranted they deserve to have an amount fixed by an impartial body.

Isn’t that is what justice is all about?

Having been denied justice initially, don’t they deserve it now?

alan.shanoff@sunmedia.ca