Wrongful Conviction & Compensation

The four styles of social control used by Canadian courts are compensation, conciliation, punishment, and treatment . . . [but] no single one of these purposes is common to all Canadian courts (Boyd, 1994, p. 145). In the case of wrongful conviction to be discussed, as is the case in criminal courts in general, the court has two separate tasks: (1) it must establish the guilt of the accused, and (2) it must prescribe an appropriate punishment or treatment. The two missing components--conciliation and compensation--are not present in the following case of David Milgaard, and the general welfare of the Canadian judicial system is worse off as a result.

The fallibility of the courts is put under a magnifying glass in the case of David Milgaard, wrongly accused and convicted of the murder of Gail Miller, on the morning of January 31, 1969.

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rtainly ("shall") and as of right ("according to law") be compensated. Of course, little of this will comfort Milgaard, who will exist in a state of judicial limbo with regard to his compensatory guilt or innocence. Boyd (1994) closes his discussion on wrongful conviction with yet more questions stemming from the Milgaard affair. He wonders, "What procedure should the Minister of Justice employ in evaluating claims like Milgaard's? And in what circumstances should compensation be contemplated?" (p. 150). Surely Milgaard deserves to be compensated for entering prison as a teenager and not emerging until middle age. His lost wages alone would provide a hefty sum, not to mention compensation for mental duress. As Kaiser (1989) recommends, "compensation should flow fairly, generously, and as of right" (p. 151). What are the consequences of not pushing for wrongful conviction reform and change to an inquisitorial system of justice? If the status quo is allowed to prevail, and Canadian courts are permitted to award money only on the basis of "ex gratia," then the courts are not being asked to obey the same laws that apply to society. If courts routinely ask companies and individuals to pay compensatory damages, it follows that th
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Approximate Word count = 3612
Approximate Pages = 14 (250 words per page)

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