Suing the Crown: A Small Door Opens

Can you sue the Crown after your criminal charges are dropped or dismissed?

The Supreme Court of Canada has just made it easier to do so.

In the case of Ivan Henry v. the Attorney-General of British Columbia, the Court lowered the threshold for suing the Crown where the prosecution has violated the Charter rights of a criminal defendant.

Ivan Henry is a man who was convicted in 1983 of 10 sexual offences, declared a dangerous offender, and imprisoned for 27 years. That is longer than most offenders convicted of first degree murder. In 2010, the BC Court of Appeal overturned every single one of his convictions, finding “serious errors in the trial” and that the verdicts were unreasonable.

It turned out the Crown had failed to disclose to the defence over 30 witness statements, as well as key forensic evidence that could have exonerated him of the crimes he was accused of. Also, the Crown had withheld evidence of another suspect who had been arrested in the vicinity of the attacks.

A detailed and compelling account of Mr. Henry’s ordeal was written by Joan McEwan and entitled The Framing of Ivan Henry: Innocence on Trial.

In the past, to sue the Crown for a wrongful prosecution, one had to show that the prosecutor had acted with “malice”. Malice is a very high standard that requires proof of a “willful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system”.

The Supreme Court has now lowered the threshold to one where “the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.”

This lowering of the standard was due in part to a recognition that when the Crown violates a defendant’s fundamental Charter rights by failing to provide important disclosure of evidence, the Crown is less deserving of protection than in a situation where they are exercising their proper discretion or judgment. Disclosing evidence to the accused is not an exercise of discretion; it is a fundamental right, and if a prosecutor violates that right, s/he can now more easily be sued.

However, while the standard has been lowered, it is by no means an easy thing to do, let alone to succeed at. It is a standard that, while lower than intentional and malicious conduct, is still higher than gross negligence.

The courts have to strike a balance between acknowledging the consequences of a wrongful conviction, and protecting Crown prosecutors from frivolous lawsuits while they carry out their difficult and important work. And the Crown will vigorously defend any attempt to hold the prosecution liable for the consequences of its decisions.

One important takeaway from this decision by the Supreme Court: violations of an individual’s Charter rights can cause real damage. And when they do, the Crown will no longer be able to hide behind the wall of virtual immunity that they have enjoyed for so long. In Henry v. the A-G of B.C., the Supreme Court has carved a door, a small one, into that wall.

To read the decision of the Supreme Court in Henry v. A-G. of B.C., click here

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