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Top Judge calls for damages for wrongly accused: 'Horrendous impact'

Justice Michael Moldaver

OTTAWA - An appeal court judge who is considered to be a contender for the Supreme Court of Canada has made an impassioned plea for governments to compensate people who are "wrongfully accused" of crimes.

Citing the financial and emotional toll on innocent persons dragged through the criminal process, Mr. Justice Michael Moldaver (right), who sits on the Ontario Court of Appeal, said society should consider compensating not just those who are wrongfully convicted, but those who are wrongfully accused.

"While I suspect that at one time or another most people have contemplated the prospect of being a victim of crime, few have perceived that the victimization might take the form of a false accusation, and even fewer have taken the time to consider the horrendous impact that the laying of a criminal charge can have on a person's life," Judge Moldaver told a weekend criminal law conference in Ottawa.

Justice Peter Cory

The criminal law expert is often cited as a potential successor to Supreme Court Justice Peter Cory (right), who is retiring on June 1.

"The time has come to bring home to the public, in no uncertain terms, just how destructive the criminal process can be, and why it is that those who have been wrongfully accused of a criminal offence may be deserving of some measure of compensation even though they have been acquitted after trial, or even though the charges may have been withdrawn somewhere throughout the process."

The judge lauded recent measures to recognize the anguish suffered by victims of crime and their families.

"Surely within the context of these progressive and enlightened measures it is time to recognize that sometimes the person most victimized by the criminal process is the accused."

A leading Toronto criminal defence counsel before his 1990 appointment to the bench, Juge Moldaver said false criminal charges can result in "overwhelming" psychological torment. "These include fear of losing one's spouse and family, fear of seeing the hurt in a child's eyes when they are cruelly tormented in the school yard and told that their father or mother is a criminal."

A wrongful prosecution can also lead to job loss and "economic ruination," the judge said. Fees for lawyers and other experts can run from several hundred dollars to hundreds of thousands of dollars, depending on the complexity and seriousness of the charges.

People often mortgage their homes or borrow money from family and friends. Some lose their entire life savings.

"In the midst of this emotional upheaval the individual must somehow continue to function," Judge Moldaver said. "Life must go on. Daily living expenses continue. The children must not be deprived of food. The mortgage payments must be maintained. The finance company will tolerate no delay in monthly payments."

The judge said "hardworking, middle-class Canadians" are particularly hard hit since they are not eligible for legal aid. "How can these people hope to generate the funds necessary to defend against a criminal prosecution, the cost of which may be staggering? How can these people hope to stand up to the state with its unlimited resources, and if they are successful, what chance do they have of being paid back?"

In the absence of police malice or gross negligence in the prosecution, innocent people who are acquitted aren't even awarded their legal expenses, he said.

Even apologies are rare, he added. "Perhaps even worse, human nature being what it is, the individual will often continue to bear the stigma of guilt, despite the not guilty verdict of the judge or jury."

Judge Moldaver did not advocate compensation for everyone who is found not guilty, acknowledging that not all people who are acquitted are necessarily innocent.

But in clear-cut cases of innocence -- for example, when a person is prosecuted based on the faulty evidence of eyewitnesses -- some compensation is merited, even if only to pay for the legal expenses, he argued.

"Legislation would be needed to define which individuals might be deserving of compensation, and under what circumstances . . . But the difficulties I believe are not insurmountable, and to shirk the responsibility, or to procrastinate any longer, will only serve to compound our complicity in the furtherance of an injustice which in my view has existed far too long."

In an interview, Judge Moldaver said the problem was brought home to him 20 years ago when he successfully defended a murder charge against a 48-year-old woman whose husband was stabbed through the heart as she defended herself against his attack.

"She essentially lost everything, in terms of her entire life savings. She lost her home . . . and she was ultimately acquitted with not even an apology," he said.

Judge Moldaver's speech to the Defence Counsel Association of Ottawa-Carleton garnered a standing ovation. But few lawyers were optimistic that the judge's suggestion would be implemented, given the current "law and order" political climate.

William Carroll, senior defence counsel, said in an interview, "The problem is that the public is firmly of the belief that everyone charged with an offence must be guilty of something.

"There is a blind faith, which is totally unjustified, that if anyone is acquitted, it must be on the basis of a technicality or one of those 'damned Charter arguments.' "

Mr. Carroll estimates that the majority of cases that go to trial end in acquittals.

"Our provincial governments are highly unlikely to implement a system to assist somebody who has been accused of wrongdoing," he predicted. "They took away the ability to defend these people by cutting legal aid. Do you think that they are going to seriously think about compensating them for being wrongly charged?"


Falsely accused get cash

Six years after they were falsely accused of second-degree murder and thrown in jail, four Regina men have won their lawsuit against the police who investigated them.

In a decision awarding more than $166,000 to the four men, Court of Queen's Bench Justice John Klebuc called the officers' investigation reckless and malicious.

A relieved David Klein, who was awarded $50,000 in damages, said Monday he is not bitter.

"The police are human too. They're going to make mistakes. This is a bad one."

He hopes the decision will prove the four men's innocence to all those people who still suspect them of the 1991 murder of Garland Vester.

"Just because a person is arrested, you can't assume someone is guilty."

Ever since her husband was arrested at home on Feb. 18, 1993, their children have been teased by schoolmates, said Deanna Klein.

"I told my daughter today at noon to go to school and tell the kids to watch the news tonight and they'll see what kind of a murderer your father is."

Klebuc also awarded $25,000 to Dwayne Martin Ransom, $35,000 to Vincent Stanley Kozar and $30,000 to Shawn William Moore, plus another $26,000 in compensatory damages for lost wages and other expenses incurred by the men.

Garland Vester's car and body were found in Wascana Lake in May, 1991. Investigators initially concluded he died of an accidental drowning.

Police re-opened the investigation in late 1992 after a Regina woman with a history of emotional problems told her social worker that she and another man were involved in the death. When questioned, the other man named the four men, all of whom he knew.

The men were charged with second-degree murder and held in jail for up to two weeks each. By June, 1993, the Crown prosecutor stayed all charges against them. Their suit for malicious prosecution and false imprisonment was heard in late 1997.

Klebuc concluded officers Sgt. Ron Seiferling and Sgt. Andre Turcotte did not meet the legal tests for arresting a person on reasonable and probable grounds. He suggested their conduct was impaired by the desire to solve a high-profile case.

The judge referred to conflicting evidence that should have made the officers reconsider their investigation, most notably that the initial witness later said she had helped rob and drown Vester.

"(Their investigation) constitutes more than mere negligence or poor judgment," Klebuc wrote.

"It was so reckless and devoid of reason and respect for the rights and security of the plaintiffs and the administration of justice that it... was malicious."

Ransom said Monday that people haven't forgotten the charges against him, as illustrated by a conversation he had at work last week after a Regina man was found floating in Wascana Creek.

"A couple guys came up to me and said 'What were you doing the other day?"' Ransom said.

"That's always going to be there."

Turcotte has retired but Seiferling is still a sergeant with the police service. Neither officer was ever disciplined in relation to the case, Deputy Chief Clive Weighill said.

Weighill said police officers are indemnified against lawsuits for on-the-job actions, meaning the police service will pay the awarded damages.

Klebuc dismissed the men's suit against the Attorney-General's office. He pointed out the Crown Prosecutor in the case had not been presented with all the relevant information by the two officers.

The four men also sued the two police witnesses, but the first witness committed suicide in 1996.

Klebuc dismissed the charge against the second one, a mentally impaired man who apparently fabricated his evidence to avoid being charged.

Klein hopes the case will lead to better police training and practices. "They should take a little more time."

He said the police department has never apologized to the men. See Darrel Keith Kaye


Falsely accused men get apology

Regina's police chief has apologized to four men falsely accused of murder six years ago.

One day after a judge ordered the police to pay the four men more than $166,000 in damages, Chief Cal Johnston announced he will also send a written apology to David Klein, Dwayne Ransom, Vincent Kozar and Shawn Moore.

"We believe the officers in this case acted in good faith, however, it is clear a better review of the available evidence should have been undertaken and charges were laid too hastily," Johnston told the media Tuesday. "An internal review of our procedures will be conducted to ensure checks and balances are in place to avoid this happening in the future."

The four men were arrested and jailed in 1993 for the murder of Garland Vester.

Police initially ascribed Vester's death to accidental drowning after his car and body were found in Wascana Lake in May, 1991. They reopened the investigation in late 1992 after a Regina woman said she and another man were involved in the death. When questioned, the other man named the four men, whom he knew.

The men were charged with second-degree murder and held in jail for two weeks. By June, 1993, the Crown prosecutor stayed all charges against them.

The men sued the police for malicious prosecution and false imprisonment. The trial was heard in late 1997 and on Monday the parties learned of Court of Queen's Bench Justice John Klebuc's decision.

Each man's award ranges from $25,000 to $50,000, and all four will share another $26,000 in compensatory damages for lost wages and other expenses.

The men welcome Johnston's promise of an apology and an internal review.

"We're very excited about it," David Klein said. "It's about time they admitted somebody did something wrong. It's about time they looked into it to find out what went wrong."

Klebuc called the officers' investigation reckless and malicious. He concluded the two investigating officers did not meet the legal tests for arresting a person on reasonable and probable grounds.

The officers knew that one witness had a history of emotional problems and subsequently changed her testimony, while the other witness was mentally impaired.

Klein hopes the police will examine their training with regards to investigations and be more discerning regarding the character of their witnesses. "Get an in-depth look at who it's coming from."

The two officers, one of whom has since retired, have not been subject to any internal discipline over the matter. The police service will pay the damages to the four men because police officers are indemnified against lawsuits for on-the-job actions.

What would be a fair settlement in cases now coming before the Courts?