May 15, 2014 in Opinion
Today, the Supreme Court of Canada granted our client Ivan Henry’s application for leave to appeal a January 2014 decision of the British Columbia Court of Appeal that would have affected his civil claim for compensation for his wrongful conviction. Mr. Henry was acquitted and freed by the Court of Appeal in a 2010 decision, but the government refused to pay him any compensation for the 27 years he spent behind bars.
Mr. Henry brought a lawsuit for damages, which was scheduled to proceed to trial on September 8, 2014, but he will likely now have to wait another year or so for his day in court.
The Supreme Court of Canada’s description of the case:
Charter of rights – Crown law – Crown liability – Applicant wrongfully convicted and incarcerated during almost 27 years – Subsequent civil claim against provincial Crown for, inter alia, malicious prosecution and seeking Charter damages for non-disclosure of evidence at trial – Whether Crown prosecutors liable for anything less than malicious prosecution – Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(1).
Mr. Henry was convicted in 1983 of 10 sexual offence counts, was declared a dangerous offender and sentenced to an indefinite period of incarceration. He remained incarcerated for almost 27 years, until granted bail in 2009, and was acquitted in October 2010. Mr. Henry then sought damages against, inter alia, the prosecutors for the injuries he alleges he suffered as a consequence of the wrongful conviction and incarceration. The claim relates to the actions of Crown counsel through the course of the trial and subsequent appeal processes.
Mr. Henry is seeking damages under s. 24(1) of the Charter and, to that end, successfully applied for leave to amend his pleadings to include the following:
120. The various acts and omissions that violated the Plaintiff’s right to disclosure and/or his right to full answer and defence and/or his right to a fair trial, as described in paragraphs 113-119 above, were a marked and unacceptable departure from the reasonable standards expected of the Crown counsel.
The amendment was subsequently refused by the B.C. Court of Appeal, on the basis that Supreme Court authority currently forecloses prosecutorial liability for negligence and requires evidence of malice.