Wrongly imprisoned man wins right to sue
Vancouver man spent 27 years behind bars
VANCOUVER • In a landmark decision Friday, the Supreme Court of Canada ruled that a Vancouver man freed after 27 years in prison for sex crimes he didn’t commit can sue the B.C. government for a Crown prosecutor’s failure to turn over evidence to the defence.
In the 4-2 ruling, the court said Ivan Henry can use the Charter of Rights and Freedoms to pursue a lawsuit and does not have to prove that the prosecutor withheld the evidence out of malice.
His legal team called the decision a “significant victory.”
“The effect of the ruling is to remove a significant barrier faced by Mr. Henry and other wrongly convicted persons in their efforts to obtain compensation through the courts,” said Marilyn Sandford, one of four lawyers representing the 67-year-old Henry.
The majority decision said the failure to disclose information to an accused is not protected by the legal shield of prosecutorial discretion nor insulated from judicial scrutiny.
“Proof of malice is not required to make out a cause of action for Charter damages against the provincial Crown in this case,” Moldaver wrote on behalf of the majority.
Still Moldaver added the threshold to obtain such damages remains high and Henry’s exceptional case should not justify a significant expansion of prosecutorial liability.
“It would be unwise to speculate about other types of prosecutorial misconduct that might violate the Charter, or to fix a blanket threshold that governs all such claims against the Crown,” he wrote.
The government wanted the higher standard of malice to be upheld to protect prosecutors from a flood of lawsuits.
The six justices were unanimous on the point that Henry’s case called for an “appropriate and just” monetary award given the “shocking disregard” of his rights.
Convicted in March 1983 of 10 sexual assaults in Vancouver involving eight women, Henry, then 36, was declared a dangerous offender and incarcerated indefinitely. Henry was imprisoned for 27 years until a review of the Robert Pickton serial killer investigation by the Vancouver Police Department uncovered evidence of a second credible suspect.
In 2010 the B.C. Court of Appeal quashed Henry’s convictions and declared him acquitted of all charges, finding serious errors in the conduct of his trial — key forensic evidence wasn’t disclosed, including DNA, and inconsistencies in witness statements were kept hidden. The court heard that evidence came to light during a 2002 police investigation that involved another offender who was implicated in 29 cases and lived near Henry.
Upon his release, Henry sued Vancouver, the Vancouver Police Department, the province and the federal government but the appeal to the Supreme Court concerned only his claim against Victoria for the prosecution’s misconduct.
The lawsuit is slated to be heard later this year in B.C. Supreme Court.
The B.C. Court of Appeal concluded last year Henry was not entitled to damages for acts or omissions of Crown counsel unless he could prove maliciousness. The country’s top court said malice was too strict a standard.
Attorneys General from across the country argued that a low threshold for damages would “open up the floodgates of civil liability and force prosecutors to spend undue amounts of time and energy defending their conduct in court instead of performing their duties.”
The court agreed prosecutorial immunity was important, but the malice standard was designed to block all save the most egregious cases from proceeding and was ill-suited to cases of wrongful non-disclosure.
For instance, incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence fall short.
The court said that an individual now must establish on a balance of probabilities that the prosecutor intentionally withheld information he or she knew or ought reasonably to have known was material to the defence and that withholding the information violated his or her Charter rights causing harm.
Chief Justice Beverley McLachlin and Justice Andromache Karakatsanis dissented, saying there “is no principled basis for imposing any threshold of fault or intention on Mr. Henry’s claim for Charter damages, as our colleague Justice Moldaver proposes to do.”
“Obviously, no amount of money can restore to him the decades he has spent behind bars. However, a monetary award may offer some compensation for this long period of wrongful imprisonment and the many lost life opportunities it entails…. There are few scenarios that can shake the public’s confidence in the justice system more deeply than those alleged by Mr. Henry.”
Henry said earlier this week that he would not comment on the ruling.
Ruling’s effect is to remove a significant barrier