Innocence Compensation: Vicarious Liability and Indemnification by the State for the Harms Caused by Wrongful Convictions

Abstract

The errors of the criminal justice system that give rise to the systemic causes of wrongful convictions that cause harm embodied in the causes of action for malicious prosecution, negligent investigation and a Charter breach are founded upon the misfeasance of the police in the investigation of crime and the malfeasance of the crown in the prosecution of crime. There are several hurdles that frame the prospect for success in litigation against the State seeking compensation including fault thresholds and crown immunities. In the event a plaintiff can fortuitously climb over these hurdles, the road to recovery is framed by the engagement of vicarious liability and the availability of indemnification for the offending police officer or crown counsel. Presumptively the obligation for financial redress falls at the feet of the individual defendants and not necessarily the State. This limitation on recovery is an unprincipled and unfair result for a plaintiff as a victim of the criminal justice system.