A North Shore man who spent almost three decades in jail for a series of rapes he did not commit has won the right to sue the Crown that put him behind bars, the Supreme Court of Canada has ruled.
Ivan Henry was convicted of 10 sexual offences in 1983 and declared a dangerous offender, thanks in part to the prosecutor failing to disclose a number of victim statements that revealed inconsistencies in the Crown’s case. Almost a quarter century later, his case was reopened and his convictions were tossed out in 2010.
But unlike some other people who have been wrongfully convicted, Henry was never offered any compensation for his years in jail.
Henry launched a civil suit against the government on the grounds his rights under the Charter of Rights and Freedoms were violated.
Under existing legal rules, however, it has been extremely difficult for anyone to hold the Crown accountable for actions in criminal cases they have tried.
But the ruling released by the Supreme Court on Friday morning changes that.
“He’s obviously very pleased with the decision. It is a significant decision insofar as it’s going to change the test that he has to meet in proving that he’s entitled to damages for his wrongful conviction,” said Joe Arvay, Henry’s lawyer who argued the case before the Supreme Court.
Arvay added Henry shouldn’t have to sue the government to be compensated for his time in jail.
“What it should do is cause the government to sit down and make Mr. Henry a very generous offer and obviate the need for him to go to trial and stop wasting taxpayer dollars that a trial would entail . . . The only question is what the amount would be?”
But the B.C. Civil Liberties Association and the Toronto-based Association in Defence of the Wrongly Convicted, both of which had intervener status in the court case, see Henry’s win as half-measure.
In order to hold the Crown liable, a person must still prove that a prosecutor acted intentionally in violating their rights. The interveners were hoping to see a majority on the court side with Chief Justice Beverly McLachlin, who argued intent — or lack of it — shouldn’t impact whether a person can be compensated for having their rights violated.
“In Canada, prosecutors are essentially immune from civil claims. That’s not what the law says but that’s the reality. The test is so strict, they might as well be immune,” said Sean Dewart, a lawyer with the Defence of the Wrongfully Convicted group.
“Mr. Henry is now a big step closer to getting the compensation that he is entitled to but, apart from that, I can’t imagine this case is going to have very far reaching implications.”
In the past, successful suits against the Crown were “extraordinarily rare” since the person suing had to demonstrate that Crown acted with ulterior motives, Dewart said.
Friday’s decision lowers the bar somewhat, but not to the point where McLachlin argued it should be.
“Compensation should come from the harm that was caused, not by trying to peer inside the mind of the person who withheld the disclosure,” Dewart said.
“What if they withheld because they were just really stupid? Or what if they withheld it because they were indifferent or lazy? . . . Does Mr. Henry care? Does that make the fact that they ruined his life any better?”
