Canada Lets Defendants Turn The Tables on Their Prosecutors

While American politicians are busy getting tough on criminals, Canada is getting tough on prosecutors.

Several prominent cases - most notably that of David Milgaard, who spent 23 years in a Saskatchewan prison for a murder he did not commit - are swaying public and legal opinion against overzealous or careless prosecutors. The result is a spate of civil lawsuits brought by former defendants who say the prosecutors who put them behind bars acted improperly out of malice - or out of negligence.

Once legally invincible, prosecutors across Canada must now look over their shoulders after a failed prosecution, legal experts say. Some on the receiving end, however, say it is only fair that law-enforcement officials be made accountable for shoddy work.

"It's principle for them to admit that what they did was wrong," says Joyce Milgaard, the mother who spent nearly two decades leading a well-publicized legal battle to convince authorities that her son was innocent of the 1969 murder for which he was imprisoned. "The documentary evidence is overwhelming that [the prosecutors] knew who did it and that they covered up," Ms. Milgaard said in a recent interview in New York, where she now resides.

Mr. Milgaard is now suing the provincial crown attorneys (government prosecutors) who prosecuted him. He accuses them of negligent prosecution, conspiracy to injure, and failure to disclose exculpatory evidence.

Only in recent years have Canadian prosecutors become vulnerable to lawsuits for wrongful prosecution. The precedent was established in the early 1990s, when Susan Nelles, a Toronto nurse charged with murdering several children, was exonerated. She won her civil suit that accused government prosecutors of malicious prosecution.

Even so, proving that crown attorneys prosecuted cases despite knowledge of a defendant's innocence, thereby acting with malice, is so hard to prove that few even bother trying. But last year, the Canadian Supreme Court ruled the prosecutors and police in the Milgaard case must stand trial against the broader and more easily proved misconduct charges brought against them.

The impact of the Supreme Court action clearing the way for Milgaard's lawsuit is now rippling across Canada, says Alan Young, a criminal law professor at Osgoode Hall Law School at York University in Toronto.

"Every provincial attorney general's office is unhappy and very uncomfortable about the wider potential exposure to being sued," he says. "They felt they could live with the 'malicious' prosecution' rule, knowing how difficult that is to prove in court. But 'negligent' prosecution is much easier to prove and will potentially expand their accountability."

In Saskatchewan, the concern is acute. "Here in Saskatchewan, various prosecutors are being targeted with what we call 'malicious-prosecution claims,' " says Don McKillop, crown counsel in the civil law division of the Saskatchewan Department of Justice. "In many of these cases, plaintiffs are including a negligence component, pushing the envelope of their claim in order to maximize their chances of success."

Greg Rodin, Milgaard's lawyer, says that while the prosecutors who convicted his client may not have acted with malice, they should still be held liable for their actions. "Just because they believed [Milgaard] was guilty, that didn't constitute an excuse to act as judge, jury, and executioner on this case," the Winnipeg-based lawyer says. "It was not up to them to decide what should be disclosed and what should be swept under the rug."

Mr. Rodin says his case will reach trial early in 1997 in the Court of Queen's Bench for Saskatchewan in Saskatoon.

Chances are the lawsuit would never have made it this far if Milgaard's ordeal had not been so long and so public. By the time Milgaard was released from prison in 1992, he and his mother had become well-known figures in Canada. The media image of a kindly mother single-handedly challenging an uncaring bureaucratic monolith generated widespread public outcry and demands for reform of the country's justice system.

'THE issue [of prosecutorial misconduct] never had the attention focused on it until now," Rodin says. "The Milgaard case ... crystallized the issue in a way it hadn't been."

Canada's legal climate stands in contrast with that of the United States. Until the early 1990s, prosecutors in both countries enjoyed immunity from civil lawsuits. But as the image of Canadian prosecutors going to court as defendants becomes more common here, demands in the US for greater prosecutorial accountability still come mostly from a small band of hard-core civil libertarians and right-wing fringe groups.

"I think most people in [the US] ... want to be tough on crime. That's what is protecting prosecutors," says Mark Kappelhoff of the American Civil Liberties Union. "Americans don't want to believe that prosecutors might do something wrong, to the point of putting an innocent man in jail."

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