Henry v. British Columbia (Attorney General) et al., 2014 BCCA 15

• Judge: Hall, MacKenzie and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 21, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 15;(2014), 349 B.C.A.C. 175 (CA)

Henry v. B.C. (A.G.) (2014), 349 B.C.A.C. 175 (CA);

    596 W.A.C. 175

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. JA.056

Ivan William Mervin Henry (respondent/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Attorney General of British Columbia (appellant/defendant) and City of Vancouver, William Harkema, Marilyn Sims, Bruce Campbell, and Attorney General of Canada (respondents/defendants)

(CA040901; 2014 BCCA 15)

Indexed As: Henry v. British Columbia (Attorney General) et al.

British Columbia Court of Appeal

Hall, MacKenzie and Stromberg-Stein, JJ.A.

January 21, 2014.

Summary:

The chambers judge, in a decision reported at [2013] B.C.T.C. Uned. 665, allowed the plaintiff to amend his pleading with respect to his claim for damages for breach of Charter rights to include the following allegation: "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, ... were a marked and unacceptable departure from the reasonable standards expected of the Crown counsel". Her Majesty the Queen in Right of the Province of British Columbia (HMTQ) appealed. HMTQ submitted that the judge erred in permitting the plaintiff to seek relief against prosecutorial actors for conduct that was less than malicious: namely, for acts more akin to negligence. The plaintiff submitted that the case of Vancouver (City) v. Ward (2010 SCC) was supportive of change along the lines indicated in the amendment ordered by the chambers judge.

The British Columbia Court of Appeal allowed the appeal and dismissed the plaintiff's application to amend. The court was bound by pronouncements of the Supreme Court of Canada which foreclosed negligence as a foundation for prosecutorial liability. The amendment ordered by the chambers judge would provide for prosecutorial liability if the plaintiff could establish a species of what the court termed gross negligence. That would not be in accord with existing Supreme Court of Canada jurisprudence. The recent case of Ward did not alter the situation.

Barristers and Solicitors - Topic 1803.1

The prosecutor - Negligence - See paragraphs 1 to 30.

Criminal Law - Topic 21

General principles - Prosecution of crime - General - See paragraphs 1 to 30.

Crown - Topic 2845

Crown immunity - Agents - Prosecutors - See paragraphs 1 to 30.

Cases Noticed:

Imbler v. Pachtman (1976), 424 U.S. 409; 96 S. Ct. 984, consd. [para. 5].

Fields v. Wharrie (2012), 672 F.(3d) 505, refd to. [para. 5].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, folld. [para. 5].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, folld. [para. 5].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, consd. [para. 6].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, consd. [para. 15].

McCulloch v. Murray, [1942] S.C.R. 141; [1942] 2 D.L.R. 179, refd to. [para. 20].

Gordon v. Nutbean, [1969] 2 O.R. 420; 5 D.L.R.(3d) 503 (H.C.), refd to. [para. 20].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1998), 60 O.T.C. 321; 39 O.R.(3d) 487; 160 D.L.R.(4th) 697 (Gen. Div.), refd to. [para. 20].

Kingston (City) v. Drennan (1897), 27 S.C.R. 46, refd to. [para. 20].

Roy v. McEwan, [1969] 2 O.R. 530; 6 D.L.R.(3d) 43 (H.C.), refd to. [para. 20].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 21].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 26].

Counsel:

Peter Juk, Q.C., and Karen Horsman, for the appellant, Her Majesty the Queen in Right of the Province of British Columbia;

A. Cameron Ward and M. Sandford, for the respondent, Ivan Henry;

Mitchell R. Taylor, Q.C., and Susanne G. Pereira, for the respondent, Attorney General of Canada.

This appeal was heard on December 12 and 13, 2013, at Vancouver, B.C., before Hall, MacKenzie and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Hall, J.A., on January 21, 2014.