Henry loses millions in out-of-court cash
Double-recovery rule applies to damages for constitutional breach, justices conclude
Ivan Henry cannot keep $5.1 million he received in out-of-court settlements for his wrongful conviction and 27-year imprisonment, the B.C. Court of Appeal has ruled.
In a groundbreaking decision on damages awarded for a constitutional breach, the province’s top court said such awards are not immune from the usual civil tort rule against double recovery, and Henry should receive no more than $8.1 million.
“It would not be appropriate and just (to exempt such awards) because Mr. Henry would receive sums of money as damages for the charter breaches substantially in excess of the charter damages assessed by the chief justice,” Justice David Tysoe wrote, supported by colleagues Mary Saunders and David Frankel, in a decision released Monday.
“He would receive an additional sum in the millions of dollars, which would not be fair to the state.”
The government argued Henry did not deserve “a windfall” and that it would be wrong for the 71-year-old to keep money he has already received from the federal government and the City of Vancouver.
B.C. Supreme Court Judge Christopher Hinkson ruled in 2016 that the out-of-court settlement cash from those governments should be deducted from the damages he ordered the province to pay for trampling Henry’s rights.
He adopted the usual rule that a victim shouldn’t be rewarded twice for the same injury — that a party should be compensated for the full amount of his or her loss, but no more.
The chief justice gave Henry $530,000 in lost income, $56,691.80 in special damages (the cost of his legal fight while in prison and psychiatric care since his release), and $7.5 million in vindication and deterrence for the 26 years, 10 months and 14 days he spent in custody.
Neither the province nor Henry challenged Hinkson’s underlying findings, but Henry appealed on the narrow point of law governing out-of-court settlements.
Henry’s lawyers argued the no-double-recovery principle of private tort law should not apply to an award for an egregious constitutional breach.
Had the city and federal government paid enough to Henry, his lawyer Marilyn Sandford pointed out, B.C. would have paid nothing for its misconduct — an absurdity.
Henry was arrested in July 1982 and convicted of a series of sex assaults in Vancouver involving eight women.
He maintained his innocence throughout.
The Robert Pickton serial killing case in 2002 spurred a review of old Vancouver police files that led to the appointment of a special prosecutor who concluded another man was responsible for at least some of the attacks blamed on Henry.
Henry was released in 2009 and the Court of Appeal in 2010 quashed his convictions and substituted acquittals.
He launched a civil suit in 2011 against the three levels of government. During the trial, the city and Ottawa settled with Henry.
In the end, Hinkson concluded the provincial Crown had failed in its duty of disclosure to Henry by intentionally withholding relevant information before his trial. He held the non-disclosure seriously infringed Henry’s right to a fair trial and demonstrated a “shocking disregard” for his rights.
If proper disclosure had been made, Hinkson said, it was likely Henry would have been acquitted of the criminal charges and it was certain he would not have been found to be a dangerous offender.
The chief justice found the federal government was not liable, and that mistakes or negligence by police should have been caught by prosecutors.
After losing the case, Victoria asked Hinkson to deduct the money paid to Henry out of court from the damage award.
In November 2016, Hinkson agreed and said the province should pay Henry only $2,936,691.80, plus interest and costs, given that he had already received $5.1 million from the federal government and Vancouver.
“In my view, one must determine whether the damage award in favour of Mr. Henry would have been higher than the $8,086,691.80 awarded had the claims against the city and Canada been determined at trial,” Tysoe explained. “If it would not have been higher, then the retention of the settlement amount without deduction in the assessed damages would constitute double recovery. … The state should not have to pay more simply because one or more arms of the state entered into a settlement with the plaintiff.”
Sandford said she was still digesting the ruling and considering an appeal to the Supreme Court of Canada.