Civil Litigation, Criminal Law

B.C. man wrongly imprisoned for 27 years can sue, Supreme Court says


OTTAWA — The Supreme Court of Canada has ruled a B.C. man can use the Charter of Rights and Freedoms to pursue a lawsuit after being wrongly imprisoned for 27 years for sexual assaults he did not commit.

The landmark ruling clarifies the circumstances under which criminal prosecutors may be sued if they fail to disclose evidence to accused persons.

In 1983, Ivan Henry was convicted of three counts of rape, two counts of attempted rape and five counts of indecent assault in attacks on eight women in Vancouver and declared a dangerous offender.

In 2010, the B.C. Court of Appeal overturned Henry's convictions, citing a lack of full disclosure of evidence by prosecutors. It heard that evidence, which came to light during a 2002 police investigation which involved another offender who was implicated in 29 cases and lived near Henry.

In 2001, Henry sued the provincial and federal attorneys general, the City of Vancouver and three members of its police department for withholding evidence that could have helped his defence.

The case centres on a fine point of charter law, but one which has major ramifications for how criminal cases proceed every day in courtrooms across Canada.

Henry wanted to proceed with his lawsuit without having to prove that the Crown's failure to disclose involved malice.

The attorneys general wanted the higher standard of malice to be upheld to protect prosecutors from a flood of lawsuits.

Justice Michael Moldaver said malice did not need to be proven, but he laid out criteria to govern how the legal test ought to be applied.

"This represents a high threshold for a successful charter damages claim, albeit one that is lower than malice,'' he wrote.

Toronto civil litigator Sarah O’Connor tells that the top court's ruling in Henry v. British Columbia (Attorney General) further elaborates the malice standard in the SCC's malicious prosecution trilogy — Nelles v. Ontario, R. v. Proulx, and Miazga v. Kvello Estate.

"There is already a high threshold for proving Charter damages. For a plaintiff to prove that a Crown prosecutor acted with malice for non-disclosure was too onerous in the past," she tells the legal publication.
"There is no prosecutorial discretion in disclosing documents, every litigant has a legal obligation to provide disclosure and that responsibility is ongoing," O'Connor, principal of O’Connor Richardson Professional Corporation, tells
"Allowing a Charter claim and damages under s. 24.1 for non-disclosure would not have a chilling effect on the Crown's prosecutorial discretion," she adds.
–With files from

© 2015 The Canadian Press

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