How should compensation be determined

Against the foregoing backdrop, I must determine the appropriate amount of compensation to recommend.

My task is complicated somewhat by the fact that there are only two Canadian cases - those of Thomas Sophonow and Donald Marshall Jr. - that provide articulated and accessible reasons explaining the principles that were used to determine the particular amount of compensation. In all of the other cases, the quantum of compensation was privately negotiated. In certain instances, most notably that of David Milgaard, there is no documentary record as to how the amount of compensation was arrived at.

The Federal/'Provincial Guidelines provide for three types of compensation:

  1. compensation for non-pecuniary losses (covering loss of liberty, the indignities of incarceration, loss of reputation, and loss or interruption of personal relationships) - limited to $100,000; 1
  2. compensation for pecuniary losses (loss of earnings - both past and future, loss of property or other consequential losses); and
  3. compensation for costs incurred in obtaining a pardon or a verdict of acquittal.

This approach to assessing compensation enshrined in the Guidelines - which is to assess compensation for lost earnings, non-pecuniary losses, and out-of-pocket expenses - appears to have been widely followed in this country, and in other jurisdictions. Such an approach, which is akin to the method of measuring damages in civil tort actions, also enjoys support with some commentators.

However, it is not the only approach to compensation. Some jurisdictions have chosen instead to fix a set amount of compensation which is payable in respect of each year spent in prison.

I will briefly consider each of these approaches in turn.

(a) The Tort-Based Approach to Compensation

The basic premise of tort law's measurement of damages is to put the aggrieved person in the position that he would have occupied but for the wrongful act. Pecuniary damages are measured by financial losses that the person has suffered in the past and will continue to suffer in the future, as a result of the tort. And non-pecuniary damages are an approximation of the person's emotional or physical suffering caused by the wrong.

This tort-based approach (referred to by some commentators as an "individualized approach") has been applied to ex gratia payments made to compensate a wrongfully convicted person. As noted above, it is enshrined in the Federal/Provincial Guidelines and it was the approach taken by Justice Cory in the Thomas Sophonow Inquiry.

In the Sophonow Inquiry, Justice Cory began his analysis by assessing the relative degrees of fault borne by government actors (such as the police and the prosecutors) and by Mr. Sophonow for the wrongful conviction. This process is akin to assessing the degree of contributory negligence that can be ascribed to the plaintiff in a negligence claim. And it is reflected in the Guidelines admonition that, in assessing lost earnings and non-pecuniary losses, the inquiring body must take into account:

  1. blameworthy conduct or other acts on the part of the claimant which contributed to the wrongful conviction; and
  2. due diligence on the part of the claimant in pursuing his remedies.

Having determined the degree of fault to be ascribed to the wrongfully convicted person, it is then necessary to consider pecuniary losses - which typically consist of income lost as a result of time spent in custody. Thus, in the Sophonow Inquiry, Justice Cory calculated the income that Mr. Sophonow lost as a result of his time in prison. This included both earnings lost during the period of incarceration, and earnings lost during a period of six months following his release when he could not find work.

Compensation for pecuniary losses may also cover expenses such as the costs of future care, including counselling fees paid for therapy to assist the wrongfully convicted person in coping with the effects of his incarceration, as well as other out-of-pocket expenses.

With respect to non-pecuniary losses, the Guidelines refer to the following:

  • loss of liberty
  • the physical and mental harshness and indignities of incarceration;
  • loss of reputation;
  • loss or interruption of family or other personal relationships.

In the Sophonow Inquiry, Justice Cory expanded that list to include the following factors - several of which merge or overlap to varying degrees:

  • loss of liberty
  • loss of reputation
  • humiliation and disgrace
  • pain and suffering
  • loss of enjoyment of life
  • loss of potential normal experiences, such as starting a family
  • other foregone developmental experiences
  • loss of freedom and other civil rights
  • loss of social intercourse with friends, neighbours and family
  • physical assaults while in prison
  • subjection to prison discipline
  • accepting and adjusting to prison life
  • effects on the claimant's future
  • the effect of post-acquittal statements by public figures.

It is impossible to value each of these losses in a separate and discrete fashion. Rather, the inquiry is whether the valuation, considered as a whole, represents fair compensation for all of the losses suffered.

The tort-based approach has also been adopted in the United Kingdom, and applies to the quantification of compensation carried out either pursuant to the statutory scheme provided by section 133 of the Criminal justice Act, 1988 or pursuant to a purely discretionary, extra-statutory grant of compensation.

I have some question as to the use of this tort-based approach to assess compensation in this particular case. The reliability of the compensation figures arrived at by means of this approach is dependent upon the context in which it was developed, namely, the adversarial model of civil litigation. Damages in tort are designed to restore the balance between plaintiff and defendant, and are a monetary equivalent of the magnitude of the wrong committed by the defendant. The accuracy of the damages figures asserted by the claimant is fully tested by opposing counsel, often with the assistance of expert witnesses. The adversarial process provides the adjudicator with a level of comfort as to the reliability and accuracy of the losses being alleged.

By contrast, in the present case, there was no civil wrong committed. As discussed above, there is no basis to argue that there was any wrongdoing on the part of prosecutors or investigators.

This case does not fit into the traditional plaintiff-defendant paradigm. The policy considerations that have led me to conclude that compensation should be paid to Mr. Truscott are very different from the policy considerations that form the basis for damage awards in tort. Moreover, the process that I have followed has been non-adversarial. There has accordingly been no opportunity to test the submissions on loss quantification that were prepared on behalf of Mr. Truscott.

(b) Standardized Approach Based on the Number of Years Spent in Custody

A second approach to assessing compensation, which has been adopted by a number of American jurisdictions, is to calculate the amount of compensation based on the length of time spent in prison. Typically, legislation sets out a fixed sum which is payable for each year of incarceration. This sum is intended to compensate the wrongfully convicted person for all losses suffered - both pecuniary and non-pecuniary. By our standards, the sums that have been so prescribed are inadequate compensation for a person who has been wrongfully deprived of his liberty by the state.

For example, in Alabama, a wrongfully convicted person may receive $50,000 for each year spent in custody 2 In California, the figure is $100 per day spent in custody. 3 And, in Iowa, a wrongfully convicted person may recover the value of lost earnings up to a maximum of $25,000 per year plus $50 per day spent in custody. 4 Other states provide for a set annual payment, but cap the total amount payable. For example, the total limit in Wisconsin is $25,000, in Maine $300,000 and in South Carolina $500,000. Still other states, such as Ohio, follow a hybrid system, with a fixed amount payable per year in respect of non-pecuniary losses, and other losses (such as lost earnings) being compensated in accordance with the tort-based approach. And for persons wrongfully convicted of federal crimes, legislation provides for compensation of $100,000 per year for death row exonerees and $50,000 per year for non-death row exonerees.

At the same time, assuming that the compensation paid on a yearly basis is adequate, there are undeniable benefits to this type of approach. It is simple, certain and avoids inconsistency between different awards. And the amount payable is based on a relevant and objective standard - namely, the amount of time spent in custody.

The chief disadvantage of this standardized approach is that it takes the focus off the victim. It effectively ignores what a particular wrongfully convicted person has actually experienced, how he has suffered.

(c) How to Assess Compensation in the Present Case

In my opinion, just as the circumstances of this case demanded a unique approach to determining Mr. Truscott's entitlement to compensation, so too they demand a unique approach to calculating the quantum of that compensation.

Almost fifty years have gone by since Mr. Truscott was convicted. He has lived his life, raised his family, and had a long and productive career. He is now of retirement age. The reality is that no dollar figure can replace his lost years and lost opportunities or compensate for the injury sustained through this miscarriage of justice. In my opinion, the ultimate goal in assessing compensation at this stage should be to ensure him comfort and financial security for the rest of his life, with the ability to provide for his family as he sees fit.

In carrying out that assessment, I have had regard to both the tort-based approach, and the standardized approach. Bearing in mind all that Mr. Truscott has been through, the compensation awarded should take into account what he has lost, as well as the length of time that he spent in prison and remained on parole. It should also be reflective of other compensatory awards that have been made in Canada. In the circumstances of this case, this is best accomplished by a single award encompassing both pecuniary and non-pecuniary losses.

(i) The Difficulty in Estimating Mr. Truscott's Loss of Earnings

Mr. Truscott's counsel have urged me to adopt the tort-based approach for the purposes of this assessment. With respect to pecuniary losses, Mr. Truscott claims compensation for earnings that he lost as a result of his wrongful conviction. No claim is made for any other form of pecuniary losses, such as the costs of medical care, or any other expenses.

In accordance with the tort-based approach, Mr. Truscott's counsel have submitted a report prepared by an economist which assessed Mr. Truscott's loss of earnings - both past and future - as ranging between $1.5 million and $3.3 million. The assessment was prepared based on the assumption that, had Mr. Truscott not been wrongfully convicted, he would have worked as a commercial airline pilot.

My difficulty in evaluating this report is emblematic of the difficulties inherent in applying the tort-based approach to this case. Given that the process that I have followed is non-adversarial, there is no opposing party to challenge the assumptions and assertions made by the economist. It is, accordingly, not possible to test the validity of the figures put forward, or the various scenarios on which they are based, any more than it is possible to see the course that Mr. Truscott's life would otherwise have taken.

Moreover, while there can be no doubt that Mr. Truscott would have been a productive member of the work force, there is no way of knowing with any degree of certainty what career he would have pursued, had he not been wrongfully convicted. Judging by his demonstrated work ethic, one can, I think, properly assume that he would have earned more money, whether as a pilot or in some other field, but for the wrongful conviction. However, there is no way of accurately knowing how much more. The exercise of trying to estimate his loss of earnings quickly becomes mired in unsupportable and entirely speculative hypotheses. It is not possible to have any confidence in the reliability of the calculation that was ultimately carried out, riddled as it is with so much uncertainty.

(ii) The Need for an Over-All Award

Accordingly, rather than attempting to carry out a speculative estimate of Mr. Truscott's notional loss of earnings, the interests of justice would be better served by making one over-all award which takes into account both pecuniary and non-pecuniary losses. The aim of such an award is to provide Mr. Truscott with the financial security needed to live the rest of his life in comfort and dignity, able to assist his family as he sees fit. The quantum of the award should reflect and provide a measure of compensation for the hardships caused by the wrongful conviction. It should also be reflective of the other relevant compensatory awards that have been made. Finally, the amount of compensation should provide public recognition of the seriousness of the wrong suffered by Mr. Truscott.

At the same time, it must be recognized that no amount of money can erase the ordeal that Mr. Truscott has endured. Compensation cannot turn the clock back and give Mr. Truscott his life to live over. By its very nature, mental and emotional suffering cannot be remedied by the payment of money. Any attempt to place a dollar value on such suffering is quixotic, at best. As Justice Dickson stated in Andrews v. Grand & Toy Alberta Limited:

There is no medium of exchange for happiness. There is no market for expectation of life. The monetary valuation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one... No money can provide true restitution. 5

As noted above, there are only two instances where reasons have been given explaining how a particular figure for compensation was arrived at - those of Donald Marshall Jr. and Thomas Sophonow.

In the case of Donald Marshall Jr., Justice Evans valued the non-pecuniary losses at $225,000, plus interest of $158,000, for a total of $383,000. Mr. Marshall spent 11 years in prison - between the ages of 17 and 28. In that sense, his case provides a relevant comparison with Mr. Truscott's. At the same time, the sum of $383,000 falls well outside of the range of more recent awards of compensation. 6

Thomas Sophonow received $1.75 million plus interest in respect of non-pecuniary losses. The differences between Mr. Sophonow's case and Mr. Truscott's are readily apparent. Mr. Sophonow spent approximately four years in prison, as compared to the more than 10 years that Mr. Truscott spent incarcerated. Mr. Sophonow was never subject to the death penalty; he was an adult at the time he was charged; and he always had avenues of appeal open to him. Moreover, Mr. Sophonow was adjudged to be partially to blame for his wrongful conviction.

Counsel for Mr. Truscott have submitted that Mr. Truscott's case is most comparable to those of Maher Arar and David Milgaard.

I reject entirely the suggestion that the case of Mr. Arar has any relevance here. The payment to Mr. Arar was not an ex gratia payment arising out of a wrongful conviction, but rather the settlement of a claim for damages resulting from governmental kidnapping to Syria, detention under the most inhumane conditions, and torture.

By contrast, the case of David Milgaard does have some relevance. Mr. Milgaard spent 23 years in prison. That is 13 years more than Mr. Truscott. He was shot during one of his two escapes from prison. And he suffered horrendous abuse - including a violent sexual assault - while in prison. At the time that compensation was assessed, Mr. Milgaard was approximately 47 years old. He received $10 million in compensation, which included a $750,000 payment to his mother. To date, this payment represents the high-water mark for compensation for the wrongfully convicted. However, because Mr. Milgaard's payment came about as a result of a settlement negotiated to resolve Mr. Milgaard's two civil law suits, there is no way of knowing the principles upon which the $10 million figure was based.

I should note that Mr. Truscott's counsel have argued that Mr. Truscott should receive compensation significantly in excess of the amount paid to Mr. Milgaard. In my view, regardless of the particular approach taken, there can be no justification for such an award. Nevertheless, I have kept in mind the total amount awarded in the Milgaard case, as well as the amounts awarded in other cases, for use as a kind of proportionality yardstick when measuring a fair amount of compensation to be paid to Mr. Truscott.

In the end, I am brought back to two guiding principles. The total amount paid to Mr. Truscott should be enough to ensure that he can live the remainder of his life with financial security, and in comfort and dignity, able to assist his family as he sees fit. It should also be enough to send a clear signal to the public that the government recognizes the enormity of the suffering that this miscarriage of justice has caused.

(iii) Facts Relevant to Assessing Compensation

In considering the appropriate amount of compensation, the following facts (some of which I have already set out) are particularly relevant.

Mr. Truscott was only 14 years old when he was arrested. He had not yet finished junior high school. He was soil in every meaningful sense of the word a child.

He spent three months in pre-trial custody at the jail in Goderich. He was separated from his family, held in a small jail cell, given only one change of clothing and permitted to bathe only once each week. During this period, his cell door was left open, because he was the only inmate on the corridor and he was permitted to walk down the corridor to the bathroom. He was taken out to the jail courtyard each day for about 30 minutes for exercise. Because of his age, he could not go outside if there were any other inmates in the yard. He had no one to talk to other than his family, on brief visits.

Needless to say, Mr. Truscott found this experience to be bewildering and frightening in the extreme.

However, frightening as it was, his experience only became worse when, at the end of September, he was found guilty of the murder of Lynne Harper and sentenced to hang. Following his conviction, he was no longer allowed out of his cell at all, except to go to the bathroom, when he would be accompanied by a guard. He was no longer allowed to go outside. For four months he remained in that cell believing that he was going to die.

His execution date was set for December 8, 1959. One day, he heard someone hammering outside. He thought that his scaffold was being built. As it turns out, it was simply someone working on a nearby house. However, Mr. Truscott's terror at that sound is readily imaginable.

He has recounted to me that, in November, he learned that his execution had been postponed until the following February. He says that he was grateful that he would live to see Christmas.

It is impossible to fathom the effect that such an experience would have on a 14-year-old boy. One can only imagine the sheer terror and the profound sense of isolation and helplessness.

Any award of compensation must reflect the uniquely traumatic nature of those months.

In addition, I emphasize the fact that Mr. Truscott spent virtually all of his teenage and young adult years in custody. When he was at the Ontario Training School for Boys from the ages of 15 to 18, he did make some friends. However, he recounts how all of these friendships were short lived, as the other boys served their time and were released. Knowing that he would not be released and that he would be sent to a federal penitentiary when he turned 18, Mr. Truscott felt isolated from the other boys.

Of course, Mr. Truscott did not attend high school or college. And although he made some attempt at correspondence courses when in the penitentiary at Collins Bay, he found the nature of correspondence study - with no contact with a teacher or classmates, and with the time lag between submission of assignments and arrival of the succeeding unit of study - to be disjointed and frustrating.

Therefore, not only was Mr. Truscott denied the normal opportunities for social and emotional development through his adolescence and young adulthood, he was also effectively denied a secondary and post-secondary education.

He was also effectively denied a family life over those ten years. Even though his parents could visit him in prison, he missed countless family events - Christmas dinners, birthday parties, weddings, the arrival of new children. Finally, while Mr. Truscott was in prison, his parents separated. He ascribes the breakdown of their marriage at least in part to the stress attendant upon his conviction and imprisonment.

Thus, even when Mr. Truscott was released from prison, his "home" no longer bore any resemblance to the home that he had left ten years before. One of his brothers had married and left home. The two remaining children had split up: Mr. Truscott's sister was living with his mother, and his younger brother with his father. This only added to Mr. Truscott's intense feelings of dislocation.

The amount of compensation paid to Mr. Truscott must also reflect his encounters with prison psychiatrists and, more specifically, the administration of LSD and sodium pentothal. While that "therapy" may have been acceptable according to the standards of the day, it appears highly questionable by today's standards. While I do not understand Mr. Truscott to have suffered any lasting adverse medical effects from that therapy, he speaks with a strong and understandable negativity about his psychiatric treatment while in prison.

Moreover, leaving aside the psychiatric "treatment" that he received, Mr. Truscott's incarceration did have serious psychological after-effects. He has a fear of dark, musty spaces, because they remind him so powerfully of the Goderich jail. He cannot bear to wait in a line, because it recalls the endless lining up that seemed to mark his time at Collins Bay. He suffers from nightmares. He finds the ordinary uncertainties of daily life - such as answering the phone without knowing who is on the other end of the line - hard to deal with. His very personality was changed as a result of his ordeal.

Finally, the amount of compensation paid must reflect the number of years that Mr. Truscott spent on parole, as well as the continuing effect that his conviction had on his life, including his loss of earnings and opportunities. His conviction remained an enormous, although often silent, presence in his daily life. It would appear that, after his children were born, the family frequently moved so as to escape the possibility of neighbours discovering his true identity. To live for so many years, constantly watchful, constantly worried about having his secret revealed must have been a tremendous burden.

  1. As noted above, the limit of $100,000 that the Guidelines prescribe in respect of non-pecuniary losses has not been consistently followed. For example, Thomas Sophonow received $1.75 million plus interest in respect of non-pecuniary losses. Donald Marshall Jr. received $225,000 plus interest..
  2. Code of Alabama, 1975, s. 29-2-159.
  3. California Penal Code, s. 4904.
  4. Iowa Code c. 663A.1, s. 6.
  5. (1978), 83 D.L.R. (3d) 452 at 475-476 (S.C.C.).
  6. For example, David Milgaard received $10 million. Thomas Sophonow received $2.5 million. Gregory Parsons received $1.3 million. Clayton Johnson received $2.5 million. And Randy Druken received $2 million..