Putting a Price on Innocence

Having been a criminal defence lawyer for over fifteen years, there’s no better professional feeling than the teary-eyed embrace of a client after hearing a “not guilty” verdict. As wonderful as it is to bask in the glow of a job well done, feelings of elation tend to fade quickly followed closely by some variant of the question, “now who is going to pay for the hell I just went through?”

Clients who pose that question often have in mind a particular witness or complainant who was the driving force behind the prosecution. Inevitably, disappointment follows after the client is given a quick primer in the extraordinarily high standard that must be proven to succeed in a civil case for malicious prosecution. The thought of digging themselves into a deeper financial hole with little prospect of successful recovery seems like throwing bad money after good, having just invested in a costly defence to criminal proceedings.

But should an individual who has emerged from the criminal justice meat-grinder with a declaration of “not guilty” be expected to be the sole bearer of the financial burden inflicted by the system? Few would suggest that the state should pay a financial penalty in every circumstance in which it fails to secure a conviction. Witnesses disappear, die or recant often resulting in an inability to prove what might otherwise have been a perfectly plausible Crown case. Mere failure to prove a case against the high burden of proof beyond a reasonable doubt should not be the trigger for a defence payday. However, in circumstances where the presiding judge has heard the totality of the evidence and concludes that the Crown proceeded capriciously, or without a reasonable prospect for conviction, the government should be held accountable for its choices and the defendant should be eligible for compensation.

Costs do not necessarily have to compensate for the full devastation caused by a failed criminal charge. Loss of employment income and reputational damage can be difficult to quantify and such calculations are better left to the more onerous judgment of a separately constituted civil proceeding. But, it is far more difficult to argue against compensation for easily verifiable reasonable professional fees paid by an accused to his or her defence counsel. A standing rule that efficiently and fairly distributed such funds would serve to somewhat level the playing field between the State’s vast prosecutorial resources, and the limited means of most criminal defendants.

A proposal for criminal costs consequences isn’t only about fattening the wallets of successful private defendants. One of the biggest consumers of criminal defence work is you – the taxpayer. Through Provincial legal aid plans across Canada, thousands of defendants receive free or subsidized legal defences. Successful costs applications in appropriate circumstances would transfer resources from the Crown offices who doggedly pursued cases in the absence of a reasonable basis to the badly depleted coffers of legal aid clinics and plans who could recoup a portion of their substantial investment. Access to justice comes with a price and an effective regime for cost consequences more equitably apportions that price between the competing branches of the justice system.

Debating the wisdom of criminal cost consequences against the Crown opens up a legitimate counter-balancing question: if the state is obligated to pay legal costs as the ‘loser’ in a criminal case, should a defendant be hit with the ‘double whammy’ of a criminal sentence and be ordered to contribute to the cost of his own prosecution? Such orders are already routine in Canadian quasi-criminal tribunal hearings (such as Law Society discipline panels where the losing licensee is ordered to pay costs for his or her own suspension or disbarment!). While the symmetry of such an argument is attractive on its surface, exposing criminal defendants to cost consequences in addition to their sentences creates a serious disincentive to a trial on the merits and risks dramatically undermining the primacy of the presumption of innocence.

Lest you think the concept of state compensation for failed criminal prosecutions is too radical for democratic criminal justice systems, there are numerous examples from common law jurisdictions sharing many similarities with Canada in which costs for innocent defendants payable by the State are, if not routine, at least statutorily available. The U.K., New South Wales, New Zealand, and Tasmania all have legislation providing some measure of financial relief to the wrongfully accused. Perhaps it is time for Canada to adopt similarly progressive legislation.

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Special thanks to Melissa Ferguson of Osgoode Hall Law School’s Intensive Criminal Law program for her research assistance for this column.