COMMENTARY: Joan McEwen: Wrongfully convicted Ivan Henry should win the right to sue," published by the Province on April 30 2015. (Joan McEwen is a Vancouver-based labour arbitrator, who authored, Innocence on Trial: The Framing of Ivan Henry, which has been nominated for The Arthur Ellis Awards for Excellence in Canadian Crime Writing.)
GIST: "If I’m right, the Supreme Court of Canada will rule Friday that wrongly convicted Ivan Henry has the right to sue the Crown for a breach of the Charter — no-one can be deprived of life, liberty and security of the person “except in accordance with the principles of fundamental justice.” Henry’s lawyers argued in November that the Crown failed to disclose at trial a raft of potentially exculpatory information, including contradictory victim statements; the recovery of spermatozoa from some of the victims; and the fact that Donald McRae, a prolific sexual predator, had been a suspect. As the law now stands, a wrongly convicted person must prove “malicious prosecution” — namely, an intentional abuse or perversion of the system of criminal justice for ends it was not designed to serve. In setting that high bar 25 years ago, the highest court in the land said that it would be sufficient to ensure that the Crown would not be hindered in “the proper execution of its important public duties.” The court was right; only one case has succeeded since. However, should the Supreme Court of Canada rule in Henry’s favour, the need for proving malice will, at least in cases of wrongful conviction, be gone. Instead, any wrongly convicted person will simply be required to establish, at the very most, a “marked departure” from the standards expected of prosecutors within the profession. In practical terms, what if any impact would such a decision have on Henry himself? From a legal perspective, precious little. While lawyers wrangle about the law’s niceties, Henry remains penniless, hoping that justice — the cold, hard cash kind — will occur before he dies. Sentenced as a dangerous offender in 1983 for 10 sex crimes he did not commit, Henry spent 27 years in prison before being acquitted — found “not guilty” — by the B.C. Court of Appeal in 2010. Arguing that he has not proven his factual innocence, the state has yet to pay him a dime in compensation. Yet who among us could establish — if charged with a serious crime — that we are innocent? Absent DNA (in Henry’s case, the police “lost” the semen samples), an ironclad alibi (the police and Crown failed to investigate his alibi statement) and/or the confession of the actual perpetrator (a man who went on to commit 25 to 50 reported rapes after Henry was behind bars), proving actual innocence is well nigh impossible. So much for the presumption of innocence, that “golden thread” supposedly running through our criminal justice system. The problem is that, once lost, that state of innocence is seemingly impossible to recover, no matter how reprehensible the behaviour of police and the Crown."
The entire commentary can be found at:
PUBLISHER'S NOTE:
