Ivan William Mervin Henry v. Her Majesty the Queen in Right of the Province of British Columbia as Represented by the Attorney General of British Columbia, et al.

(British Columbia) (Civil) (By Leave)

(Publication ban in case) (Sealing order)




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Charter of rights - Crown law - Crown liability - Appellant 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 s. 24(1) of the Canadian Charter of Rights and Freedoms authorizes a court of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice - 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.

Lower Court Rulings

April 18, 2013
Supreme Court of British Columbia

S114405, 2013 BCSC 665
Application for leave to amend a notice of civil claim granted in part
January 21, 2014
Court of Appeal for British Columbia (Vancouver)

CA040901, 2014 BCCA 15
Appeal allowed; application for leave to amend dismissed