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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Intern .................. Matt Powell Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales ... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Analyzing the effects of sentencing reform A key change took hold in Canada's courts last week. After years of debate and criticism, the federal government imple- mented legislation ending the double credit convicts typically have received for pretrial time spent in remand centres. The idea was to enact truth in sentenc- ing, so that the actual time spent in jail roughly matches the punishment crimi- nals receive. Provincial politicians, police, and vic- tims' groups are all lauding the change given concerns that the awarding of dou- ble credit provided an incentive for crimi- nals to drag out their court proceedings. Knowing they'd eventually plead guilty, repeatedly adjourning cases would ensure they would get a sentence bargain by the time the matter was over, critics alleged. Defence lawyers, meanwhile, have de- cried the change as yet another example of the government taking away sentenc- ing discretion from judges. At the same time, they point out that one of the key factors behind awarding double credit was a recognition of the difficult condi- tions in remand centres as well as the fact that inmates there have little access to re- habilitative programming. Both perspectives are valid. Allowing judges to take the circumstances of each case into consideration is important, while the public has a legitimate concern about the practice of awarding double credit, particularly since it's common to grant it in virtually all cases in many jurisdictions. So, it's arguable that the government has gone too far in eliminating the dou- ble-credit option without allowing for much leeway in exceptional cases. But as usual, debate over the issue involves little reference to specific facts and data. To what extent, for example, are trial delays due to backlogs in the system rather than criminals taking advantage of generous sentencing provisions? How much of an increase in the prison population do of- ficials expect the change to cause? If it's significant, how will they handle it? The new law, in fact, is one of a few pieces of the government's marquee tough-on-crime bills that actually made it through the legislative process to royal assent. As such, it's a key opportunity for the legal community, researchers, govern- ments, and the media to assess the implica- tions and check whether the law is having its intended effect. Are we seeing earlier guilty pleas and quicker proceedings now that double credit isn't an option? Of course, the key question everyone would like the answer to is whether such laws, and this one in particular, deter crime. It's a difficult issue since many factors affect crime rates. Nevertheless, it's a challenge someone will hopefully take on. Already, we've heard that judges have faced some snags in interpreting federal changes that eliminated conditional sen- tences for a number of serious crimes. So, given the government's plans to once again revive its crime bills, maybe it's time for those affected by or interested in the changes to analyze just what the laws already in place have meant for the criminal justice system. In that way, we'll hopefully have better information the next time the same issues come up. — Glenn Kauth er to compensate the wrongfully convicted? Of course, victims in those cases may launch a wrongful prosecution or negligent inves- tigation lawsuit. Success in such a lawsuit, however, will be rare as a result of the recent Supreme Court of Canada decisions in Miazga v. Kvello Estate and Hill v. Hamilton-Wentworth Regional Police Services Board. In Miazga, the court ruled that even in cases where there has been a clear miscarriage of jus- tice, the accused must establish "affirmative evidence of malice or improper purpose." Malice doesn't exist merely because the prosecutor didn't have reasonable and probable grounds to proceed with the case. There is no liability flowing only from "inexperience, incompetence, negligence or even gross negligence." Instead, the ac- cused must establish "that the prosecutor deliberately intended to subvert or abuse the office of the attorney general or the pro- cess of criminal justice." Independent body needed for wrongful convictions W hy is it that it's poli- ticians who make decisions on wheth- The Hill decision illustrates how difficult it is to succeed in a negligent investigation action. In that case, the po- lice investigation was far from perfect. They botched a pho- to lineup composed of Jason Hill, a young aboriginal, and 11 white males and failed to reinvestigate after receiving new information. But the top court ruled the law doesn't demand a perfect investigation, just a reasonable one. Minor mistakes and misjudgments can happen. With prospects for compensa- tion via the courts unlikely, the decision on whether to compen- sate the wrongfully convicted lies with the government. Let's look at how the Ontario government dealt recently with the wrongful convictions of Robert Baltovich and Anthony Hanemaayer. Baltovich was granted a new trial and acquitted in 2008 af- ter serving almost nine years for murder. Still, nobody in author- ity declared him factually inno- cent. Instead, the court acquitted him after the Crown decided not to enter any evidence at Bal- tovich's new trial. Since there was Social Justice By Alan Shanoff no DNA test to exonerate him — police never found the de- ceased's body — and the evidence didn't clearly point to the guilt of someone else, establishing factual innocence would be next to im- possible. In addition, courts aren't in the business of making decla- rations of innocence in Canada. There's no verdict of innocent. While a not-guilty verdict leaves the accused with a presumption of innocence, that's not the same thing as a declaration of such. Hanemaayer pleaded guilty to a sexual assault he didn't commit and received a sentence of two years less a day. The vic- tim's mother wrongly identified him. Facing that evidence and after receiving legal advice, he chose to plead guilty as part of a plea bargain. But surely, the government shouldn't hold that against him. www.lawtimesnews.com Hanemaayer didn't plead guilty with any malicious in- tent. Rather than face the risk of what seemed to be a certain conviction and a severe pun- ishment, he chose to enter into a plea bargain and receive a much shorter sentence. Doesn't our criminal justice system encourage such arrangements? So do either Baltovich or Hanemaayer deserve compensa- tion? It seems not. According to Attorney General Chris Bentley, the government provides com- pensation only in "rare, unusual cases." Even though it has recog- nized Baltovich and Hanemaayer's wrongful convictions, they won't receive any compensation as do- ing so would be "inappropriate." But what makes it inappropriate? Do we blame Hanemaayer for not risking a lengthy prison sen- tence? Do we withhold compen- sation to Baltovich because DNA hasn't proven his innocence? Is it because he received a fair trial? But that shouldn't matter. Don't most wrongful convictions result from a fair trial? Isn't it time that we set up an independent body to deal with March 1, 2010 • Law TiMes Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. miscarriages of justice? Most provinces already provide some form of compensation for vic- tims of crime. In Ontario, the Criminal Injuries Compensa- tion Board can award up to $25,000 as a lump-sum pay- ment to provide compensation for pain and suffering. While that's a ridiculously low amount that hasn't been adjusted since 1971, there's no reason why we shouldn't have an independent body dealing with the wrong- fully convicted. After all, aren't they also victims of crime? Having such a body would remove many malicious pros- ecution cases from the courts, thereby saving money and scarce judicial resources. More impor- tantly, it would provide victims of wrongful convictions with some element of justice without having to depend on the whims of the government. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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