COMPENSATION: NATIONAL POST ASKS A QUESTION RELEVANT TO MANY JURISDICTION: HOW SHOULD WE REVIEW WRONGFUL CONVICTIONS?

"THE PROVINCE IS MISREADING PUBLIC SENTIMENT, MR. WOLCH SAID. "I DON'T THINK THE GOVERNMENT RECOGNIZES THE DECENCY OF THE AVERAGE CITIZEN," HE SUGGESTED, AND STRESSED THAT COMPENSATION IS NOT SIMPLY ABOUT MONEY, BUT TO HELP REMOVE THE PUBLIC STIGMA FOR SOMEONE WRONGFULLY CONVICTED OF MURDER. ANYONE CLAIMING A WRONGFUL CONVICTION ALSO HAS TO FIGHT "CROWN CULTURE" IN CANADA, WHICH CAN BE A FORMIDABLE OBSTACLE, SUGGESTED VANCOUVER LAWYER CAMERON WARD, WHO FREQUENTLY REPRESENTS PEOPLE ALLEGING WRONGDOING BY THE STATE. "THE GENERAL ATTITUDE OF THE CROWN AND POLICE IS THAT THEY DO NOT MAKE MISTAKES. AND ANYONE WHO IS CRITICAL, DOES NOT UNDERSTAND WHAT THEIR JOBS ENTAIL," SAID MR. WARD."

REPORTER SHANNON KARI: THE NATIONAL POST;

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"On the second day of his trial for attempted rape 20 years ago, Anthony Hanemaayer changed his plea to guilty," the National Post story by reporter Shannon kari, published on February 26, 2010, begins, under the heading "Not guilty, now what? Overhaul how miscarriages of justice are reviewed: critics."

"He was acting on the advice of his lawyer, after the victim's mother identified him as the man she saw in her daughter's bedroom," the story continues.

"He would spend almost two years in prison.

It later emerged that the witness was wrong. Mr. Hanemaayer was innocent. He was finally cleared two years ago, but last month the Ontario Attorney-General ruled that he would not receive compensation for his wrongful conviction -- because he had pleaded guilty.

The decision was another example, critics say, of a mind-set in which governments will do anything to avoid admitting mistakes. They say it shows a need for an overhaul of how possible wrongful convictions are reviewed and whether the same government involved in a miscarriage of justice should decide compensation.

Four different judges presiding over inquiries in the past two decades have all called for an independent agency, similar to one in place in the United Kingdom. The federal Justice Department first examined that possibility in a working paper issued in 1992.

Since then, the agency that handles claims of wrongful convictions has been given increased independence, yet it is still a branch of the federal government. After a number of years of negotiations, a federal-provincial committee is expected to provide new compensation guidelines this fall, which will update existing rules in place since 1988.

Even with new guidelines, they are unlikely to be binding on any province and rarely is there any public discussion these days about creating an independent agency.

"The question is political will," observed Bruce MacFarlane, a former Deputy Attorney-General in Manitoba and senior federal Justice Department official, who now teaches law, including a course on wrongful convictions. "Getting it on the legislative agenda is tough," he observed. While he agreed there is merit to the idea of an independent agency, "the reality is that the Justice Department is doing a very good job," said Mr. MacFarlane.

The Criminal Conviction Review Group, a branch of the Justice Department, investigates claims of wrongful conviction and then advises the Justice Minister, who can refer a case back to a court in the province where the case was originally prosecuted.

"I work within this model," said Kerry Scullion, director of the review group. The possibility of an independent agency "is up to the politicians, not me," Mr. Scullion said, who stressed that his group has been able to carry out its duties without any political interference.

As well, while he praised groups like the Association in Defence of the Wrongly Convicted (AIDWYC), he said a claim will be considered just as seriously even without their involvement. "Every application we receive is reviewed top to bottom and gets the same treatment."

Mr. Scullion pointed to data that shows about 14% of applications received in the past seven years by his group have been referred to the courts for a new look. In contrast, about four per cent of cases are sent back to the courts by the independent agency in Britain.

Those who have acted for the wrongly convicted, such as Hersh Wolch, have praise for Mr. Scullion and his colleagues.

"The people right now in Ottawa who look into these cases are very good. They are very fair. But I worry what happens when they retire," said Mr. Wolch. The respected lawyer, also known for his representation of David Milgaard, suggested an independent agency for wrongful conviction claims and one to determine compensation.

Mr. Wolch represents Kyle Unger, who spent 14 years in prison for murder before his release on bail. The Manitoba government supported a federal review after new DNA tests ordered by Mr. MacFarlane, determined in 2004 that hair found at the crime scene was not from Mr. Unger.

The Crown called no evidence at his re-trial and Mr. Unger was acquitted last fall. Manitoba is refusing compensation as a result of a "confession" that Mr. Unger gave to undercover officers who posed as a crime group in a "Mr. Big" sting operation. The judge who granted Mr. Unger bail noted that key details he provided about the crime in the confession were shown to be inaccurate.

The province is misreading public sentiment, Mr. Wolch said. "I don't think the government recognizes the decency of the average citizen," he suggested, and stressed that compensation is not simply about money, but to help remove the public stigma for someone wrongfully convicted of murder.

Anyone claiming a wrongful conviction also has to fight "Crown culture" in Canada, which can be a formidable obstacle, suggested Vancouver lawyer Cameron Ward, who frequently represents people alleging wrongdoing by the state.

"The general attitude of the Crown and police is that they do not make mistakes. And anyone who is critical, does not understand what their jobs entail," said Mr. Ward.

Facing this obstacle is Robert Sanderson, presently serving a life sentence imposed in 1997 after he was convicted in a triple murder in Winnipeg, purportedly a result of a biker turf war.

The same review of hair evidence that helped clear Mr. Unger also revealed that a hair found at the scene of the triple murder was not that of Mr. Sanderson -- contrary to what the jury heard at his trial. There are other parallels to the case of Mr. Unger, including the use of unsavoury witnesses and the involvement of controversial prosecutor George Dangerfield. In an ironic twist, the Crown pointed to the then recent conviction of Williams Mullins-Johnson in Ontario (later revealed to be a wrongful conviction) as a legal authority for the guilty finding of Sanderson at his appeal hearing.

The Manitoba government maintains the conviction is sound, after it conducted an internal review in 2005, the details of which it won't make public. "There continues to be a strong case implicating Robert Sanderson in the murders, even with new information related to hair evidence," said Assistant-Deputy Attorney-General Don Slough. He indicated though, that he could not comment on the "specifics" when asked what remaining evidence makes it a "strong case" against Sanderson.

Sanderson, 39, believes his criminal past and former involvement in a native biker gang, is why what he says is another wrongful conviction, is easier to ignore. "The standards are different for me. They can say it is just a common crook, so who cares," observed Sanderson in a telephone interview from prison. "But I would not be convicted if I went on trial today. That is their real concern," he said.

AIDWYC is investigating the Sanderson case, yet despite its sterling reputation it is still a small organization with only enough resources to focus on a limited number of cases at any one time.

As he develops a career as a native artist in prison, Sanderson said he has a patience that was not present when he was someone with a bad reputation on the streets of Winnipeg. "I have a long criminal past. But I am in jail for something I did not do," he said, firmly.

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COMPENSATION FOR JAIL TIME

While it is up to a branch of the federal Justice Department to provide advice to the minister on whether a conviction should be referred back to a court for review, it plays no role in any possible compensation for a wrongful conviction. That decision is normally made by a provincial government, since its Crown attorneys are responsible for most criminal prosecutions in the country. A federal-provincial committee is scheduled to provide new guidelines for compensation to provincial justice ministers when they hold their annual meeting in the fall. The present guidelines are more than 20 years old and provinces have come to very different conclusions in high-profile cases about whether to award compensation.

Robert Baltovich The Ontario government announced this month it would provide no compensation to Mr. Baltovich, for the nearly nine years he spent in prison after his 1992 murder conviction in the death of his girlfriend. The Crown called no evidence at his re-trial in 2008. But the Attorney-General said it acted in good faith in the proceeding and there was no basis for compensation. Only in "rare and exceptional cases" should compensation be awarded, said Chris Bentley.

David Milgaard The Saskatchewan and federal governments agreed in 1999 to pay $10 million in compensation to Mr. Milgaard, who spent 23 years in prison for a rape and murder he did not commit.

Anthony Hanemaayer At the same time as it announced its decision in the case of Robert Baltovich, the Ontario government said it would not award compensation to Mr. Hanemaayer, who spent two years in prison for a sexual assault he did not commit. The province concedes that he is factually innocent and the 1989 crime was committed by Paul Bernardo. But it pointed to a guilty plea by Mr. Hanemaayer, who admitted to a crime he did not commit because he was afraid of receiving a much longer sentence after the mother of the victim was convincing in her mistaken belief that he was the suspect, as the reason not to award him any money.

Steven Truscott The Ontario government awarded Mr. Truscott $6.5 million in compensation based on the recommendations of a retired judge. Mr. Truscott was 14 when he was convicted of murder and sentenced to hang. His death sentence was later commuted and he was released in 1969 after spending 10 years in prison. A federal review sent the case back to the Ontario Court of Appeal which acquitted Mr. Truscott in 2007.

Kyle Unger The Manitoba government presented no evidence at his retrial last fall and Mr. Unger was acquitted of the 1990 murder of a 16-year-old girl. Mr. Unger spent 14 years in prison, yet the province said it would not compensate him because of a "confession" he provided to undercover police in a "Mr. Big" sting. A judge later found the confession to be tainted and inaccurate."

The story can be found at:

http://www.nationalpost.com/news/story.html?id=2614927&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NP_Top_Stories+%28National+Post+-+Top+Stories%29

Harold Levy...hlevy15@gmail.com;