Report No. 277

E. Canada

3.32 Canada ratified the ICCPR in 1976; though no legislation has been enacted to give effect to the Covenant, the principles expressed in it appear to have informed a joint set of guidelines relating to compensation for the wrongfully convicted, formulated by the Federal and Provincial Ministers of Justice in 1988.

3.33 Titled as the 'Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons', these Guidelines contain the criteria which is to be met before a person can be considered eligible for compensation. Notably, the Guidelines expressly limit the payment of compensation only to the actual person who was wrongfully convicted and imprisoned.

3.34 As per the said Guidelines, the prerequisites for eligibility for compensation are as follows:

(i) the wrongful conviction must have resulted in imprisonment, all or part of which has been served;

(ii) compensation should only be available to an individual who has been wrongfully convicted and imprisoned as a result of a Criminal Code or other federal penal offence;

(iii) the conviction has been reversed, outside the normal appeal process, on the basis of a new or newly discovered fact;

(iv) the new fact shows that the applicant is factually innocent i.e. the applicant did not commit the crime, and that there has been a miscarriage of justice; and (v) when all available appeal remedies have been exhausted.

3.35 The considerations for determining the quantum of compensation under the Guidelines include both non-pecuniary and pecuniary losses:

(i) Non-pecuniary losses

a) Loss of liberty and the physical and mental harshness and indignities of incarceration;

b) loss of reputation which would take into account a consideration of any previous criminal record;

c) loss or interruption of family or other personal relationships.

(ii) Pecuniary Losses

a) Loss of livelihood, including of earnings, with adjustments for income tax and for benefits received while incarcerated;

b) loss of future earning abilities;

c) loss of property or other consequential financial losses resulting from incarceration.

3.36 In assessing the aforementioned amounts, the inquiring body is required to consider the following factors:

(i) Blameworthy conduct or other acts on the part of the applicant which contributed to the wrongful conviction;

(ii) due diligence on the part of the claimant in pursuing his remedies. 3.37 Additionally, reasonable costs incurred by the applicant in obtaining a pardon or verdict of acquittal should be included in the award for compensation. Compensation for non-pecuniary losses should not exceed $100,000. It is to be noted that these Guidelines are not regarded as binding legislation; and just as they do not create any legal right to compensation, they also do not create any legal bar to compensation, payment of compensation remains at the discretion of the Crown. In this manner, reportedly, many of the awards of compensation that have been made in the last 20 years departed in some manner or the other from the criteria proposed by the Guidelines.34

3.38 In addition to the above, a wrongfully convicted person, in Canada, also has the option to pursue a civil cause of action, such as a claim in tort for malicious prosecution, negligent investigation, prosecutorial misconduct, or false imprisonment, or a claim for breach of rights protected under the Canadian Charter of Rights and Freedoms. 'Negligent investigation', as a cause of action was recognized the Supreme Court of Canada in the case of Hill v. Hamilton-Wentworth Regional Police Services Board,35 where the Court noted that the appropriate standard of care, like for other professionals, is that of "a reasonable police officer in similar circumstances."

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