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Previously, Folland won a malicious
prosecution suit | James
Lockyer | Heads of Prosecution paper
on wrongful convictions
Gordon Folland
Wrongly convicted has
right to sue lawyer, court rules
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, Thursday, January 27, 2005 - Page A9
A man convicted of rape who
was exonerated based on DNA has won the right to sue his trial
lawyer for negligently defending him.
The Ontario Court of Appeal
said in a 3-0 ruling that lawyers should be judged by exactly
the same standards as any other professional accused of negligence.
"An individual being defended
in a criminal case is entitled to expect that his lawyer will
perform as a reasonably competent defence counsel," the
court said.
The plaintiff, Gordon Folland,
is suing defence counsel Dennis A. Reardon for loss of income
and suffering by him and his family. He served almost three years
in a penitentiary after being wrongly convicted in 1994 of raping
an acquaintance following a late-night drinking party.
In 1999, DNA evidence -- potentially
available at the time of the trial -- pointed straight at another
partygoer, Shawn Harris, as the source of semen found on a set
of male underwear in the complainant's bed.
The appeal judges said yesterday
that there is a mistaken belief in legal circles that lawyers
cannot be sued unless they made "egregious" errors
of judgment. In fact, the court said, the threshold for proving
negligence is simply whether they measured up to a standard of
reasonable competence.
The ruling opens up a novel
avenue of compensation for the wrongly convicted, criminal law
specialists said yesterday.
"The court is saying that
if, as defence counsel, your negligence caused someone to be
convicted who wouldn't have been otherwise, you are liable for
damages," University of Toronto law professor Kent Roach
said. "I think that facet opens up the possibility of more
lawsuits in this area."
The ruling overturned a lower-court
decision that threw out the lawsuit because it contained "no
genuine issues for trial."
"Without diminishing the
difficulty of many judgments that counsel must make in the course
of litigation, the judgment calls made by lawyers are no more
difficult than those made by other professionals," Ontario
Court of Appeal judges David Doherty, Marvin Catzman and Robert
Armstrong said.
They noted that according to
an expert opinion by renowned defence lawyer Alan Gold, Mr. Reardon's
failure to obtain DNA tests on the semen-stained underwear in
the case constituted negligence.
"The DNA evidence offered
potentially significant support for the claim that Harris, and
not Folland, was wearing that underwear," the court said.
"Given that there were
only two potential assailants, Harris or Folland, this evidence
could have turned the tide in favour of Folland."
Mr. Gold also said he was mystified
as to why Mr. Reardon risked bolstering the complainant's credibility
by questioning her eyesight in cross-examination -- when he already
knew that her eyesight was more than adequate.
Mr. Gold said that Mr. Reardon
also botched the issue of how Mr. Folland acquired a 40-ounce
bottle of vodka that day. Although his client was prepared to
admit he had stolen it, the way Mr. Reardon brought the evidence
at trial made it appear that Mr. Folland was trying to conceal
that fact.
Exonerated in 1999, Mr. Folland
wept in relief as the judge who had levied his sentence apologized
for the miscarriage of justice
- Innocent man can sue
his lawyer
Says poor defence led to being jailed
Appeal court
lets case proceed
NICOLE MACINTYRE, TORSTAR
NEWS SERVICE, Jan. 27, 2005.
HAMILTON-A Hamilton man sent
to prison for a sexual assault he didn't commit has won permission
to proceed with a lawsuit against his former defence lawyer.
Gordon Folland alleges local
lawyer Dennis Reardon's negligent defence led to his wrongful
conviction and incarceration.
Folland served nearly half
his five-year sentence after a jury found him guilty in 1995
of sexually assaulting a 26-year-old woman in her home.
He was released when DNA evidence
was linked to a friend, who had already told police he'd had
sex with the woman the night she was assaulted.
Folland has since launched
a malicious prosecution suit against the Hamilton police and
the Crown attorney's office.
His suit against Reardon was
originally dismissed last year by a Toronto judge, but that decision
was overturned yesterday by the Court of Appeal.
The suit alleges negligence,
including Reardon's trial performance and failure to obtain a
DNA sample from the other suspect. The case hasn't been proved
in court.
Reardon's lawyer, Christopher
Diana, said his client disputes the allegations.
"He wasn't negligent.
He lived up to the standard of care required of him," Diana
said, adding he doesn't know if his client will appeal the latest
decision.
Folland was found guilty in
March, 1995 for the Nov. 23, 1993 sexual assault of a woman who
had been sleeping.
Even though DNA tests showed
semen on underwear found in the victim's bed did not match Folland,
a jury took just 90 minutes to convict him.
He was released in November
1997 after two of his friends convinced a man who was also present
in the woman's house to provide hair and saliva for testing.
His DNA matched semen on the underwear.
The man wasn't called as a
witness, and has never been charged with the offence.
The Court of Appeal ruling
came a day after federal and provincial justice ministers released
a report on combatting wrongful convictions.
HAMILTON SPECTATOR
http://www.thestar.com/NASAp
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
The Crown is still fighting Fred Poirier
-- and they are losing. Secret Commissions Case from Northern
B.C.