An ADR Approach to Compensating the Wrongfully Convicted
January 4, 2018
Vancouver Criminal Defence Lawyer, Joven Narwal, published “An ADR Approach to Compensating the Wrongfully Convicted”, as a letter to the editor in the November 2017 issue of ‘The Advocate’. Established in 1943, the Advocate is a leading journal for both academic and informative writing for lawyers and legal scholars throughout British Columbia. An excerpt from the article is below:
Our system does not offer any immediate support to the [wrongfully convicted]. While some may eventually be offered an ex gratia payment by the government, others are forced to navigate back through the very system that failed them, again depleting scarce and precious time on a further legal odyssey. Our system of justice is among the finest that has ever evolved; however, much of that evolution was the product of lessons learned following shocking realizations that innocent persons had been condemned. Our profession is implicated in these tragedies, although we are redeemed by the heroines and heroes who seek to rectify the errors and by those who strive to prevent them from happening in the first place. No system of justice based on human decision making can be fail-proof, and when the system does fail, we can be redeemed also by striving for a process that provides for immediate subsistence funding for the wrongfully convicted and that at least expedites, if not formalizes, the entire process of seeking full and final compensation.
In the United States there are 27 jurisdictions that have enacted compensation statutes; however, those statutes are deficient in that they provide for insufficient monetary compensation and social services, deny compensation to those deemed to have “contributed” to their convictions by falsely confessing or pleading guilty to crimes they did not commit, and may refuse compensation to individuals with unrelated convictions.2 The balance of jurisdictions are similar to ours in that the issue of compensation is either litigated or left to political will. The former always takes years and is expensive; the latter can also take years, is totally discretionary and lacks procedural fairness.
A made-in-Canada approach to compensation could involve the enactment of legislation that provides for the immediate payment of subsistence funds and access to critical services to ensure a less painful reintegration into society, along with a framework that provides for fair and expedited compensation. Until that type of legislation is enacted, responsible politicians and counsel ought to consider whether justice could be done and be seen to be done in a fair and efficient manner through the use of methods of alternative dispute resolution. For instance, counsel for the exoneree may consider engaging with the relevant political powers and any other parties or insurers with a view to negotiating a dispute resolution agreement whereby payment is made to the exoneree for an amount deemed necessary to provide for immediate needs and later deducted from the total amount of compensation. If straight negotiation for total compensation fails, a mediation process could be the next stage, failing which an arbitration-like process could be agreed to. The beauty of an arbitration like process is that the exoneree would be involved in negotiating the procedure and selecting the arbitrator(s), which would go some way toward empowering the individual, advancing the healing process and, from a practical perspective, offering a less expensive and quicker resolution. This arbitration could also, with the consent of the parties, serve as a quasi commission of inquiry that could provide some insight into what went wrong and what may need to be done to ensure that the storm of circumstances which led to the travesty is not repeated. Any ADR agreement reached should have embedded within it a timeframe to get the job done from negotiation to ultimate arbitrated award, and provide for costs and other consequences to incentivize early settlement if the award is more than what was offered to the exoneree during earlier stages. The hope is that this type of process would be quick and fair, thereby enhancing the integrity of the system and advancing the only goal that should matter after exoneration: allowing the individual to move on with what is left of his or her life.