I deplored the use of injunctions, enforcement clauses and contempt of court powers to deal with environmental activists in 1994, and now, twenty years later, as the Kinder Morgan protests on Burnaby Mountain heat up, my views are the same.  It may be helpful to revisit what Mr. Justice Mark McEwan had to say on the subject in Regional District of Central Kootenay v. Doe, 2003 BCSC 836:

“A Writ of this kind is, in essence, a request for the court to craft a proscriptive law binding on all citizens respecting certain activities. It is not the assertion of a civil claim at all, but the adaptation of the mechanics of a civil claim for the purpose of legislating, by way of injunction, a form of ad hoc criminal law (that is, a proscriptive law having general application). This apparently has the salutary effect, from the point of view of the Attorney General’s department and the police, of relieving them of their investigative and prosecutorial functions in matters they deem politically, or otherwise, sensitive, and handing them over to the Court. The Court is then in the invidious position of having before it a litigant whose only seeming recourse is to the Court, given the inaction of the authorities. The Court also subsequently finds itself in the position of prosecuting any breaches of the injunction as “contempts”, in effect, translating what are apparently offences against public order (for which Parliament has passed criminal sanctions), into attacks on the court’s authority. I am not at all persuaded that the court should inevitably put its authority on the line in such circumstances. I will not repeat what I have said on earlier occasions on this subject except to note that the misgivings I expressed in, for instance, Slocan Forest Products Ltd. v. John Doe et al, 2000 BCSC 150, inform these reasons.           

The materials before me include a Writ and Statement of Claim asserting a trespass, but seeking only an injunction and enforcement orders, not damages or costs. The form of relief sought in the motion is not stated to be interlocutory, although that is clearly what the plaintiff must be seeking.         

I think this proceeding amounts to a kind of officially induced abuse of process.”

So don’t take it from me.  Take it from an esteemed Justice of the BC Supreme Court.

The RCMP shot and killed at least 16 men in BC between 2009 and 2015.  The list, compiled from BC Coroners Service records and other public documents, is below.

Name, Date and Location:

Peter de Groot, October 13, 2014; Slocan

John Buehler, September 17, 2014; Valemount

Gaetan Plante, January 14, 2014; Surrey

Ryan Jacob, January 31, 2013; Burnaby

Gregory Matters, September 10, 2012; Prince George

Justin Zinser, September 24, 2011; Nimpo Lake

Brendon Beddow, March 23, 2011; Surrey

Adam Purdie, March 2, 2011; Surrey

Alvin Wright, August 7, 2010; Burnaby

Wilbert Bartley, July 30, 2010; Kamloops

Matthew Wilcox, January 10, 2010; North Vancouver

Jeffrey Hughes, October 23, 2009, Nanaimo

Valeri George, September 30, 2009; Rock Creek

Rodney Jackson, September 29, 2009; Hazelton

Kenneth Baines, July 15, 2009; Surrey

Derek Whelton, March 1, 2009; Cowichan

Trinity Western University should not be permitted to open a law school in British Columbia while it discriminates against a class of people based on their sexual orientation.

The benchers of the Law Society of British Columbia have the authority to determine whether any new law school is an approved faculty of law.  In April, by a vote of 20-7, the benchers decided to approve the proposed school.  I was in the minority then, and suspect I remain so now, despite the June 11 special general meeting of the membership where an overwhelming majority of the province’s lawyers voted against accreditation.

This issue will be back in front of the benchers in September, when two resolutions will be considered.  One, which I support, would implement the result of the special general meeting, while the second resolution contemplates subjecting the issue to a binding referendum.  I feel such a step is unnecessary and expensive.  Too much members’ money has already been spent on this divisive issue.

It is all quite unfortunate, because TWU could stop all this nonsense with the stroke of a pen – by simply deleting the objective part of its anachronistic “Community Covenant”.  This is an objectionable document, for it discriminates against married same sex couples by prohibiting them from engaging in sexual relations while working or studying at the institution.  Married heterosexual couples, on the other hand, enjoy the freedom to do as they please.

To me, it is just plain wrong for an institution of higher learning to discriminate against a class of people and make them feel unwelcome.  If TWU must do so, it should not be allowed to train tomorrow’s lawyers and judges.

….

*The views expressed herein, as elsewhere on this website, are solely those of the author, Cameron Ward, and should not be construed as reflecting the opinion of any other person or group with whom I may be affiliated.

Ivan William Mervin Henry was incarcerated for almost 27 years in respect of crimes he did not commit.  He was ultimately acquitted by the Court of Appeal on October 27, 2010 but has not received any compensation from the state for the miscarriage of justice that occurred in his case.  Here is a timeline of some of the events in the saga:

1980-1982:  Dozens of sexual assaults with a similar distinctive modus operandi occur in Vancouver.

May 12, 1982:  Mr. Henry is arrested by Vancouver police and forced into a physical lineup viewed by several victims.

Ivan Henry is number 12 in this lineup photograph introduced into evidence at his 1983 criminal trial.

July 29, 1982:  Mr. Henry is charged with 17 counts of sexual assault and arrested.

February 28-March 15, 1983:  Mr. Henry is tried by Mr. Justice Bouck and a jury on ten counts.  Michael Luchenko and Judith Milliken are the prosecutors; Mr. Henry represents himself.  The Crown adduces no physical evidence linking Mr. Henry to any of the crime scenes or assaults (although perpetrator semen and other physical evidence was retrieved during the investigation) and relies only on the testimony of the complainants.  Mr. Henry is found guilty of all charges on March 15, 1983 and remains in custody for sentencing.

April 12, 1983-July, 1988:  More than two dozen similar sexual assaults are perpetrated in Vancouver while Mr. Henry remains in custody.

November 23, 1983:  Mr. Henry is declared a dangerous offender and sentenced to an indefinite period of incarceration.

February 24, 1984:  The Court of Appeal grants the Crown’s application to have Mr. Henry’s appeal from conviction dismissed for want of prosecution after he failed to obtain the trial transcripts.

November 24, 2004:  Following a review of historic sexual assault cases, Donald James McRae is charged with three sexual assaults from the 1980s.

May 27, 2005:  Mr. McRae pleads guilty to the charges and is sentenced to five years in prison.

November 15, 2006: Lawyer Leonard Doust Q.C. is appointed by the Criminal Justice Branch of the Ministry of Attorney General for BC to review Mr. Henry’s case to determine “whether there had been a potential miscarriage of justice.”

March 28, 2008:  The Criminal Justice Branch releases a summary of Mr. Doust’s recommendations.

January 13, 2009:  The Court of Appeal orders that Mr. Henry’s appeal be re-opened.  Mr. Henry is released on bail pending the hearing of his appeal, with an electronic monitoring bracelet attached to his leg.

October 27, 2010:  The Court of Appeal allows the appeal, sets aside the verdicts and enters acquittals, stating, among other things, “the verdict on each count was not one that a properly instructed jury acting judicially could reasonably have rendered.”

Ivan Henry with his daughters upon his acquittal and release from prison in 2010

June 28, 2011:  Mr. Henry files a civil lawsuit seeking compensation for his wrongful conviction.  The defendants include the City of Vancouver, the Attorney General of British Columbia and the Attorney General of British Columbia.

April 18, 2013:  The BC Supreme Court decides that Mr. Henry’s claim for Charter damages against the Crown prosecutors can succeed if he establishes at trial that their conduct amounted to a marked departure from the standards expected of them.

January 21, 2014:  The Court of Appeal finds the BC Supreme Court judge erred in in its decision and holds that Mr. Henry has to establish malice on the part of the trial prosecutors to succeed against the provincial Crown.

May 15, 2014:  The Supreme Court of Canada allows Mr. Henry’s application for leave to appeal the Court of Appeal’s decision.  The appeal is set for hearing in November of 2014.  Mr. Henry’s civil claim for compensation is now scheduled to proceed to a 100 day trial commencing August 31, 2015.

May 1, 2015:  Mr. Henry wins the Supreme Court of Canada case, the court overturning the Court of Appeal’s decision and holding that can be entitled to Charter damages absent prosecutorial malice.

June 1, 2016:  Following a lengthy trial in the BC Supreme Court, Mr. Henry wins his case and is awarded over $8 million in damages for wrongful conviction.

Therefore, Ivan Henry lived under a cloud, asserting his innocence for 34 years, before justice was finally served and he received compensation.

Today, the Supreme Court of Canada granted our client Ivan Henry’s application for leave to appeal a January 2014 decision of the British Columbia Court of Appeal that would have affected his civil claim for compensation for his wrongful conviction.  Mr. Henry was acquitted and freed by the Court of Appeal in a 2010 decision, but the government refused to pay him any compensation for the 27 years he spent behind bars.

Mr. Henry brought a lawsuit for damages, which was scheduled to proceed to trial on September 8, 2014, but he will likely now have to wait another year or so for his day in court.

The Supreme Court of Canada’s description of the case:

Charter of rights – Crown law – Crown liability – Applicant wrongfully convicted and incarcerated during almost 27 years – Subsequent civil claim against provincial Crown for, inter alia, malicious prosecution and seeking Charter damages for non-disclosure of evidence at trial – Whether Crown prosecutors liable for anything less than malicious prosecution – Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(1).

Mr. Henry was convicted in 1983 of 10 sexual offence counts, was declared a dangerous offender and sentenced to an indefinite period of incarceration. He remained incarcerated for almost 27 years, until granted bail in 2009, and was acquitted in October 2010. Mr. Henry then sought damages against, inter alia, the prosecutors for the injuries he alleges he suffered as a consequence of the wrongful conviction and incarceration. The claim relates to the actions of Crown counsel through the course of the trial and subsequent appeal processes.

Mr. Henry is seeking damages under s. 24(1) of the Charter and, to that end, successfully applied for leave to amend his pleadings to include the following:

120. 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, as described in paragraphs 113-119 above, were a marked and unacceptable departure from the reasonable standards expected of the Crown counsel.

The amendment was subsequently refused by the B.C. Court of Appeal, on the basis that Supreme Court authority currently forecloses prosecutorial liability for negligence and requires evidence of malice.