Case Summary
While on parole in 1976, Norman Fox was arrested by the Vancouver Police and charged with assault, rape, and buggery after a complainant identified him from a selection of police photographs.1 Fox’s photo stood out in the line-up because it was larger than the others, and he was the only one wearing a suit and tie. There was considerable evidence to raise a reasonable doubt about his identification. First, Fox had an alibi: his girlfriend had seen him elsewhere at the time of the crimes. Second, there were significant discrepancies in the complainant’s description of their attacker: the attacker was described as having a scar and rotten teeth, which Fox did not have, and the complainant made no mention of the attacker having a large tattoo, despite Fox having a large tattoo. Nevertheless, Fox was convicted and sentenced to 10 years in prison.2 His appeal to the BC Court of Appeal was denied, as was leave to appeal to the Supreme Court of Canada.3
In prison, because of the nature of the crimes he was convicted of, Fox was “constantly exposed to threats of death, beatings and abuse.”4 Ultimately, because of the brutal treatment he faced, Fox suffered a nervous breakdown. The former salesman explained: "I fell apart… I still had some hope that the appeal court would catch the error. When it didn't, it was probably the final straw… I would cry for all hours on end. I would sit and stare at the wall and not even know I was doing it."5
Fortunately for Fox, he had very persistent friends. During the time he was suffering in prison, his friends worked tirelessly and eventually uncovered the identity of the real rapist and assailant, who had since passed away.6 For years, his friends investigated the crime further and continually lobbied the government to remove Fox’s conviction. A handwriting analyst concluded that the handwriting on the hotel register was not Fox’s and a federal government lawyer found the real perpetrator had committed suicide in 1982 and that the case was “a terrible miscarriage of justice."7
After eight-and-a-half years in prison, the federal cabinet reviewed the circumstantial evidence used against Fox at his trial and pardoned him.8 After being released from prison, Fox went straight to his former common-law wife's apartment only to find that she had left him for someone else, crushing his dream of marrying her and having children.9 To make matters worse for Fox, he was unable to get a job and was forced to survive on only $375 per month, welfare from the provincial government.10
Fox sought compensation for his wrongful conviction and imprisonment. He sued the government for $1.5 million, or $500 for each day he spent in prison, but his claim was quickly rejected.11 In response, British Columbia Attorney-General Brian Smith announced a commission to determine the compensation owed to Fox over his eight-and-a-half years in prison.12 Fox’s lawyer argued for broad terms of reference for the commission: they called for a probe of police conduct in Fox’s case, and to have the provincial Ombudsman explore the police investigation.13 The Ombudsman did not get involved and Meredith McFarlane, the former B.C. Supreme Court judge who led the compensation commission, ruled that he could not summons police investigators or allow as evidence pictures of the police lineup in which Fox stood because it went beyond his mandate.14
According to Fox, the commission hearings quickly “turned into an inquisition” in which a sexual assault he was convicted of in the 1960s “became the major issue,” rather than the wrongful imprisonment.15 Ultimately, McFarlane recommended Fox be paid $275,000 for false imprisonment.16 According to Fox, McFarlane "didn't take into account loss of wages or any other figures presented” and pulled the compensation quantum “out of the air."17 He also criticized the B.C. Attorney General for suggesting that he was due less compensation because Fox had a criminal record. Fox argued: “What he is saying is that people with criminal records are not entitled to the same principles of justice as other people are. He is saying to them: 'You'll never be able to live down your past no matter how much time you serve or what amends you make.'"18 The B.C. Attorney General also claimed to have intervened to see that the victim of the 1960 crime committed by Fox received $100,000 of the $275,000 award. Fox said: “In the end, in fact, we end up splitting the award because my legal expenses will be $75,000. Hers are $5,500."19 Despite this, Fox ultimately decided that he would accept the $275,000 in compensation, stating that the funds would be necessary to pursue the “question of the broader investigation of [his] conviction.”20
After his compensation was awarded, Fox stated that he did not want to "see other innocent persons imprisoned because of a lack of impartial and fair investigation.”21 Fox publicly stated that a public inquiry into his case would “...bring about an awareness on the part of the public and those involved in the administration of justice of the importance of fair procedures and impartial investigation of criminal offences."22 No such inquiry was formed.
An expert in eyewitness identification evidence subsequently criticized, “'[e]veryone involved, the judge, the police, even the defence lawyer contributed [to Fox’s wrongful conviction]. Why wasn't somebody like me called in? Why wasn't the judge more skeptical? The fact they (the rapist and the victim) spent such a long time together, there shouldn't have been those kind of inconsistencies.'"23