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Gordon Folland

Wrongly convicted has right to sue lawyer, court rules

A man convicted of rape, Gordon Folland, who was exonerated based on DNA has won the right to sue his trial lawyer for negligently defending him.

The Ontario Court of Appeal said in a 3-0 ruling that lawyers should be judged by exactly the same standards as any other professional accused of negligence.

"An individual being defended in a criminal case is entitled to expect that his lawyer will perform as a reasonably competent defence counsel," the court said.

The plaintiff, Gordon Folland, is suing defence counsel Dennis A. Reardon for loss of income and suffering by him and his family. He served almost three years in a penitentiary after being wrongly convicted in 1994 of raping an acquaintance following a late-night drinking party.

In 1999, DNA evidence -- potentially available at the time of the trial -- pointed straight at another partygoer, Shawn Harris, as the source of semen found on a set of male underwear in the complainant's bed.

The appeal judges said yesterday that there is a mistaken belief in legal circles that lawyers cannot be sued unless they made "egregious" errors of judgment. In fact, the court said, the threshold for proving negligence is simply whether they measured up to a standard of reasonable competence.

The ruling opens up a novel avenue of compensation for the wrongly convicted, criminal law specialists said yesterday.

"The court is saying that if, as defence counsel, your negligence caused someone to be convicted who wouldn't have been otherwise, you are liable for damages," University of Toronto law professor Kent Roach said. "I think that facet opens up the possibility of more lawsuits in this area."

The ruling overturned a lower-court decision that threw out the lawsuit because it contained "no genuine issues for trial."

"Without diminishing the difficulty of many judgments that counsel must make in the course of litigation, the judgment calls made by lawyers are no more difficult than those made by other professionals," Ontario Court of Appeal judges David Doherty, Marvin Catzman and Robert Armstrong said.

They noted that according to an expert opinion by renowned defence lawyer Alan Gold, Mr. Reardon's failure to obtain DNA tests on the semen-stained underwear in the case constituted negligence.

"The DNA evidence offered potentially significant support for the claim that Harris, and not Folland, was wearing that underwear," the court said.

"Given that there were only two potential assailants, Harris or Folland, this evidence could have turned the tide in favour of Folland."

Mr. Gold also said he was mystified as to why Mr. Reardon risked bolstering the complainant's credibility by questioning her eyesight in cross-examination -- when he already knew that her eyesight was more than adequate.

Mr. Gold said that Mr. Reardon also botched the issue of how Mr. Folland acquired a 40-ounce bottle of vodka that day. Although his client was prepared to admit he had stolen it, the way Mr. Reardon brought the evidence at trial made it appear that Mr. Folland was trying to conceal that fact.

Exonerated in 1999, Mr. Folland wept in relief as the judge who had levied his sentence apologized for the miscarriage of justice

Innocent man can sue his lawyer
Says poor defence led to being jailed

Appeal court lets case proceed

HAMILTON - A Hamilton man sent to prison for a sexual assault he didn't commit has won permission to proceed with a lawsuit against his former defence lawyer.

Gordon Folland alleges local lawyer Dennis Reardon's negligent defence led to his wrongful conviction and incarceration.

Folland served nearly half his five-year sentence after a jury found him guilty in 1995 of sexually assaulting a 26-year-old woman in her home.

He was released when DNA evidence was linked to a friend, who had already told police he'd had sex with the woman the night she was assaulted.

Folland has since launched a malicious prosecution suit against the Hamilton police and the Crown attorney's office.

His suit against Reardon was originally dismissed last year by a Toronto judge, but that decision was overturned yesterday by the Court of Appeal.

The suit alleges negligence, including Reardon's trial performance and failure to obtain a DNA sample from the other suspect. The case hasn't been proved in court.

Reardon's lawyer, Christopher Diana, said his client disputes the allegations.

"He wasn't negligent. He lived up to the standard of care required of him," Diana said, adding he doesn't know if his client will appeal the latest decision.

Folland was found guilty in March, 1995 for the Nov. 23, 1993 sexual assault of a woman who had been sleeping.

Even though DNA tests showed semen on underwear found in the victim's bed did not match Folland, a jury took just 90 minutes to convict him.

He was released in November 1997 after two of his friends convinced a man who was also present in the woman's house to provide hair and saliva for testing. His DNA matched semen on the underwear.

The man wasn't called as a witness, and has never been charged with the offence.

The Court of Appeal ruling came a day after federal and provincial justice ministers released a report on combatting wrongful convictions.