OTTAWA – The Supreme Court of Canada ruled on Thursday that a B.C. man can use the Charter of Rights and Freedoms to continue his lawsuit for wrongful conviction after the prosecutors failed to disclose key information during his trial.
This is the first time the Supreme Court has ruled on disclosure and if there needs to be proof of malice. The ruling has now lowered the bar, allowing Ivan Henry to pursue a civil suit against the Attorney General of B.C. using the Charter of Rights without proof of malice.
In 1983, 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. After spending 27 years in jail for 10 sexual offences and being declared a sexual offender, Henry was found innocent in October 2010 due to serious errors in the 1983 trial.
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Since he was acquitted, Henry launched a civil suit against the Attorney General of B.C. for failure to disclose key information that led to the harm he allegedly experienced during his wrongful conviction. During the 1983 trial, Henry had made several requests for victim statements and forensic evidence, which were denied.
The Crown prosecution had disclosed some victim statements, but there were 30 additional statements that weren’t revealed to Henry. These statements showed inconsistencies, as well as key forensic evidence, and could have altered the outcome of his trial.
Although the standard has been lowered – and proof of malice isn’t required – the ruling carefully avoided setting the bar too low, where prosecutors could be easily sued for decisions on whether he or she decides to disclose evidence during the trial.
There is now a test that determines whether a claimant can use the Charter of Rights in the case of non-disclosure: the prosecutor had to have withheld information; the prosecutor must have known the information was important material for the defence and would have damaged his or her ability to a proper defence; holding back the information would violate his or her Charter rights; and the defendant suffered harm as a result.
On Friday, the Supreme Court judges agreed 6-0 to this landmark ruling, and now Henry’s case against will continue in the B.C. courts.
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