Conclusions on Entitlement to Compensation

In its reasons, the Court of Appeal describes Mr. Truscott's appeal as the successful culmination of a lengthy quest for vindication:

The guilty verdict and the subsequent affirmations of that verdict have not deterred Mr. Truscott in his efforts to demonstrate that he is an innocent man. Fortified by the unqualified support of family members and others, and with the assistance of a group of skilled and indefatigable lawyers, Mr. Truscott returns to the judicial system one last time seeking vindication.

This time Mr. Truscott is successful. 1

In my opinion, that vindication would not be complete without compensation. Indeed, a refusal to grant compensation would leave a stigma - a suggestion of guilt - attached to Mr. Truscott. That is the very stigma which the Court of Appeal took pains to remove when it ordered an acquittal, rather than a new trial, explaining that an order for a new trial "would remove the stigma of the appellant's conviction, but leave in place the stigma that would accompany being the subject of an unresolved allegation of a crime as serious as this one. 2

I am also cognizant of the fact that the Attorney General has issued a public apology for the miscarriage of justice. That apology, while not an admission of liability, is nonetheless a recognition of responsibility of some kind.

I would also emphasize that Mr. Truscott's conviction has been definitively held to be a miscarriage of justice and that he has lived under the burden of that miscarriage of justice for almost 50 years. He was convicted of murder as a 14-year-old. He was sentenced to death by hanging. He spent approximately five months living under the threat of execution. Thereafter, he spent ten years -virtually his entire adolescence and much of his young adulthood - in prison. He had no chance to go to high school. He was incarcerated throughout what could have been his years in college. Even after his release, he lived in the shadow of his murder conviction. This caused him to live under an assumed name, and restricted his day-to-day life in ways that we can only imagine. And yet, despite all of the hardship that he has suffered and seemingly against all odds, Mr. Truscott has led an exemplary and successful life since his release from prison.

Finally, I repeat my conclusion that, if a trial could be held to determine Mr. Truscott's innocence, a finding of innocence would be the likely result.

As I have stressed, the circumstances of this case are, without a doubt, highly unusual. It would be a harsh result indeed if the government were to refuse to Mr. Truscott the compassionate exercise of the Crown's grace in the form of an ex gratia payment solely because he cannot affirmatively prove his innocence - something that the Court of Appeal noted would be "a most daunting task" absent definitive forensic evidence such as DNA.

It was the state, through the operation of the criminal justice system, that inflicted the harm on Mr. Truscott. We are all dependent upon the proper functioning of the criminal justice system and we must all share the burden of its errors. Through no fault of his own, Mr. Truscott suffered as a result of one of those errors. His loss should be borne by the community as a whole, and not by Mr. Truscott alone. The state has a moral obligation - an obligation that springs from a sense of justice and equity - to provide some redress to Mr. Truscott. The public's interest in the proper administration of justice - and, indeed, the public's conscience - demand that a payment be made.

In the sections which follow, I consider what the appropriate amount of compensation would be.

  1. Decision of the Court of Appeal, supra note 10 at para. 2-3.
  2. Decision of the Court of Appeal, supra note 10 at para. 265.