Henry v British Columbia (Attorney General), 2016 BC 1038 – $7.5 million in Charter damages

 

Today, in Henry v. British Columbia (Attorney General), 2016 BCSC 1038 Chief Justice Chris Hinkson of the BC Supreme Court awarded Ivan Henry Charter damages of $7.5 million for the violation of his Charter rights resulting in his wrongful conviction and imprisonment for 27 years. He also awarded about half a million dollars for compensation as compensation for past loss of income and special damages of about $50,000. But after considering the “cap” on non-pecuniary damages and deciding that it was not applicable in this case, the Chief Justice sought to “vindicate” the wrongs of the British Columbian government.

Bearing in mind the direction of Chief Justice McLachlin in Ward that just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1) damages must be fair — or “appropriate and just” — to both the claimant and the state, and weighing the social burden of a large award to Mr. Henry against his suffering and loss of amenities, I find that an appropriate award to vindicate the violation of Mr. Henry’s Charter rights is the sum of $7.5 million. 

I will expand on this case in a later post. In the interim, I wanted to let you know of this important decision.  Click here to go directly to the decision.

Constitutionally yours,

 

Arthur Grant

BC Supreme Court certifies Charter claims by penetentiary inmates as a class action

In a recent decision of the Supreme Court of British Columbia, Ewert v. Canada (Attorney General), 2016 BCSC 962,  Mr. Justice Blok certified as a class action certain aspects of a lawsuit brought by an inmate for, amongst other things, damages for violations of Charter rights. The inmate in question, Jeffery Ewert, claimed that, during a lockdown at the Kent Correctional Institution that occurred between January 7 and 18, 2010, his rights and the rights of other inmates under ss. 7, 8 and 12 of the Charter were violated and that they were accordingly entitled to damages.

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The deadline has passed. What is the status of physician-assisted death in Canada today?

 

The extended deadline set by the Supreme Court of Canada in Carter v. Canada (Attorney General), 2016 SCC 4 expired last night, June 6, 2016, at midnight. The constitutional exemption created by the Court in granting the extension to its original deadline of February 6, 2016, would have logically expired as well. So what is the state of the law today in Canada insofar as it relates to medical assistance in death?

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The Court comes to the defence of solicitor-client privilege – Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20

On June 3, 2016, the Supreme Court of Canada yet again upheld the constitutional principle in support of professional secrecy between legal advisors and their clients. Justices Wagner and Gascon, rendering reasons for the Court in Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, underscored the importance of solicitor-client privilege, not only in the judicial system, but also in the legal system. Accordingly, in Chambres des notaires, as well as in Canada (National Revenue) v. Thompson, 2016 SCC 21, released contemporaneously, the Court held that the right to professional secrecy trumped the need of the government to be able to obtain accounting records of legal advisors in so far as they related to clients.

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How NOT to Achieve a New Electoral Process

The Minister of Democratic Institutions, Maryam Monsef, has announced the creation of a special committee to investigate and oversee what sort of electoral process should be adopted in time for the next federal election, currently slated for 2019. In my view, the committee approach she is using is fraught with problems. No matter how “good” its recommendations may be, they will be viewed as the product of a Liberal government-biased committee and will not bear the hallmark of impartial legitimacy that any electoral process must have.
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Alberta Court of Appeal and Ontario Supreme Court – both say Carter does not require terminal illness

In two separate decisions, the courts have made it clear that nothing in Carter v. Attorney General (Canada), 2015 SCC 5 requires that the person seeking medical assistance in dying be suffering from a terminal illness or condition. And yet the government persists in pursuing Bill C-14 with its requirement of “reasonable foreseeability” of death.

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Medical assistance in dying – the Liberal government responds to the Supreme Court

More than 14 months after the Supreme Court first held that the Criminal Code provisions forbidding physician-assisted death were unconstitutional in Carter v. Canada (Attorney General), 2015 SCC 5, and almost three months to the day from the date that the Supreme Court gave a four month extension to its suspension of the declaration of unconstitutionality (see Carter v. Canada (Attorney General), 2016 SCC 4), the Liberal government has introduced its legislative response with a bill, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).

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The Succession to the Throne Act, 2013 survives constitutional scrutiny: Motard v. Canada (Attorney General)


 

On February 16, 2016, the Quebec Superior Court upheld the Succession to the Throne Act, 2013, an Act of the federal Parliament that gave Canada’s assent to an Act before the Parliament of the United Kingdom that changed the rules of succession for the British monarchy such that the system of male preference primogeniture under which a younger son could displace an elder daughter in the line of succession was to be ended and also such that the rule that rendered anyone who married a Catholic became ineligible to succeed to the Crown was similarly removed. In Motard v. Procureur general du Canada et al., 2016 QCCS 588, Justice Claude Bouchard examined the question as to whether the amendments to the royal succession, and Canada’s assent to them, were changes to Canada’s constitution and, if so, whether Part V of the Constitution Act, 1982 was therefore engaged.

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Electoral reform for Canada – to have or not to have a referendum?

Recently, there have been increasing cries for the Liberal government to hold a referendum on any new electoral system. On the CBC News website today, there is a report on a poll conducted by Insight West which found that nearly two thirds of Canadians polled considered that there should be a referendum on any new system of voting.  But would this be a good way to decide upon such an issue?

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Trinity Western University v. The law societies – an update as to where things stand

TWU law

For those of you who follow this issue, the current score is 2 to 1 for Trinity Western University as against the Law Societies. TWU has won two of the three trial court decisions – namely, those in British Columbia and Nova Scotia. It lost its inaugural round in Ontario. All three decisions are being appealed. As we all know, this one is going all the way to the Big House.

Where do things stand right now in the three provinces?
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