Myles McLellan, ‘Innocence Compensation: Private Law Principles for Public Law Remedies’

As challenging as it is for an innocent person accused of a crime to be successfully exonerated, the pursuit of compensation to redress the harm caused by that accusation is an entirely new yet continuing burden. Notwithstanding the State’s error or in the investigation and prosecution that wrongly caused damage, there are substantial hurdles that stand in the way of any prospect for financial recovery. These hurdles limit the liability of crown attorneys and police officers. Principles of corrective and distributive justice provide the framework within which liability is assessed. There are degrees of fault which impede the pursuit of compensation to the private law actions for malicious prosecution and negligent investigation and to public law actions for the breach of Charter rights. The law of tort has evolved in the common law and by way of statute to impose crown immunities and to limit recourse to liability by virtue of rules relative to vicarious liability. It is the individual police officer and crown attorney who are primarily responsible to the plaintiff, notwithstanding it is the State that controls the enterprise of investigating and prosecuting crime for the benefit of the public. It is the State that should bear the burden of damages caused when that enterprise goes wrong.

McLellan, Myles Frederick, Innocence Compensation: Private Law Principles for Public Law Remedies (May 26, 2016).

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