Reasonable Doubt: Ivan Henry ruling gives new significance to Crown’s obligation to disclose

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      Today, the Supreme Court of Canada released a decision stating that Ivan Henry, a man wrongfully convicted of several sexual offences and imprisoned for 27 years, could seek damages under the Charter of Rights and Freedoms against the government for failing to disclose information that could have assisted in his defence at his original trial.

      Ivan Henry was convicted in 1983 of 10 sexual offences; he was declared a dangerous offender and spent 27 years in prison. In 2010, the B.C. Court of Appeal quashed his convictions and substituted acquittals for each of the offences for which he was charged. The Court of Appeal found serious errors in the conduct of the trial and that the guilty verdicts were unreasonable in light of all the evidence as a whole.

      It has come to light, that at Henry’s first trial, the Crown did not disclose information to the defence, which would have assisted in his defence. Henry says that, among other things, the Crown did not disclose information such as the police investigating another suspect for the offences—a suspect who had a history of sexual offences.

      What makes this case all the more awful, is that Henry not only raised a reasonable doubt of his guilt after 27 years, he actually had to go so far as to prove his innocence. After having 27 years of his life taken from him, Henry wants some compensation. It seems only fair, if only for purely practical reasons; after the prime of your life being taken from you, you’re released from prison without anything—no income, no savings, no retirement fund, no job, no skills. So, what do you do?

      You try to figure out if you have any legal grounds to sue the government for the wrongs that have been done to you at its hands. In Canada, unlike what we hear happens in the U.S., getting compensation from the government for wrongs done is not easy or straightforward. As you can see from Henry’s case, he had to bring a matter before the Supreme Court of Canada to even know if it was legally possible to sue the government for an action that resulted in him spending 27 years in prison.

      The Constitution and the Canadian Charter of Rights and Freedoms are the supreme law of the land in Canada. The Charter set out everyone’s fundamental rights. In 2010 for the first time in Canadian history, the Supreme Court of Canada ruled that if the government has breached your Charter rights, this can form the basis for a cause of action or right to sue the government and as a result you can receive damages or money to compensate you.

      In order to make sure that the government is not consistently having to defend itself against claims for compensation for its marginal mistakes or wrongdoing, your case for the breach of your Charterright must reach a certain standard in order to proceed.

      In Henry’s case, the government argued that Henry would have to show that the government’s actions were taken maliciously. The Supreme Court of Canada decided that the malice standard did not fit because it has a specific legal history and doctrine; malice is something that is assessed in situations where there is a highly discretionary decision. (News bulletin: making disclosure in a criminal case is not highly discretionary.)

      Making full disclosure in a criminal case has long been held to be a necessary duty of the Crown in prosecuting a person. In 1991, the Supreme Court of Canada released a decision called R. v. Stinchcombe. Stinchcombe made this duty of disclosure by the Crown a principle of fundamental justice; essentially stating that any piece of evidence that could reasonably be used by the defence to raise a reasonable doubt must be disclosed (in addition to all evidence the on which prosecution intends to rely, of course).

      It cannot be understated how critical and serious this obligation of the Crown to make disclosure is. Making disclosure is one of the first things the Crown does in a prosecution and disclosing information to the other side continues throughout the whole trial process as new information is discovered. Every piece of information the Crown receives is considered and a determination is made about whether or not it should be disclosed. There is no other area of law where this responsibility to disclose all information is taken so seriously and where a failure to disclose can change the entire course of a prosecution.

      In order to bring a successful lawsuit against the government for non-disclosure for a criminal matter, the plaintiff must prove:

      (1) the prosecutor intentionally withheld information; (2) the prosecutor knew or ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impinge on his or her ability to make full answer and defence; (3) withholding the information violated his or her Charter rights; and (4) he or she suffered harm as a result.

      This test protects the government from every Tom, Dick, and Harry that wants to start a lawsuit because they’re pissed off they were convicted and have found some truly unimportant piece of information that was not disclosed, but it also allows those with more-legitimate-than-not claims to have an opportunity to seek redress for wrongs done.

      As of today, the obligation to disclose information in criminal trial will have new significance. Failure to disclose information to the defence, now raises a cause of action or right to sue on the part of the person affected by the non-disclosure.

      Comments

      2 Comments

      Bob Powelson

      May 1, 2015 at 1:12pm

      This was a very good and long overdue clarification of the crown's duty to disclose. Crown Council should not get trapped in "we must win" attitude. They should also not let themselves be browbeaten by the police who hold that attitude.

      There is a long history of precedent that the crown's main purpose is to present the evidence and let the truth prevail. It really is better that 100 guilty people go free than that one innocent person be imprisoned.

      Taxpayer

      May 1, 2015 at 7:44pm

      Taxpayers should not be the ones to have to pay the compensation. The compensation should come directly out of the pockets of the prosecutors and police who wronged the defendant. As long as someone else is footing the bill, the people running the system will not change their attitudes and actions.