The Supreme Court of Canada will hear arguments on November 13 in Henry v .The Queen.  The Court will consider whether an individual who was wrongfully convicted following the Crown’s unconstitutional failure to disclose relevant information can seek money damages under the Canadian Charter of Rights and Freedoms, without a finding of malicious conduct on the part of the prosecutors.

Mr. Henry was imprisoned from 1983 to 2009 following convictions for several sexual assaults.  During his trial, the prosecution failed to disclose a number of key facts, including the discovery of DNA evidence, the existence of an alternative suspect, and the occurrence of similar sexual assaults after Mr. Henry’s arrest.  The police re-investigated those unsolved sexual assaults in 2002 and obtained DNA matches for the alternative suspect, who then pleaded guilty to several of the assaults.  In 2010, the British Columbia Court of Appeal overturned Mr. Henry’s convictions and entered acquittals on all counts.

Mr. Henry is now seeking damages against the provincial government for its failures to disclose relevant information. At this stage in the proceedings, the Crown has argued that his claim should not proceed as Mr. Henry is unable to show that the implicated Crown prosecutors acted maliciously.  The British Columbia Court of Appeal agreed, and Mr. Henry has been granted leave to appeal that decision to the Supreme Court of Canada.

The David Asper Centre for Constitutional Rights and the BC Civil Liberties Association (BCCLA) are jointly intervening in this case.  They argue that malice on the part of the prosecutor – or any state actor – has no role to play in determining the availability of damages as a constitutional remedy.  The malice requirement exists in the tort of malicious prosecution, which reflects an historical reluctance to attach liability to individual prosecutors for discretionary decision-making; when it comes to Charter damages, however, a Crown prosecutor never has discretion to breach the Charter.

The David Asper Centre and the BCCLA take the position that to require proof of malice for a Charter claim would mean there is no meaningful difference between the tort of malicious prosecution and remedial claims under the Charter.  The organizations will argue that this approach fails to recognize the distinct nature of claims for Charter damages.  Such claims target the state, as opposed to individual prosecutors, and also fulfill the public functions of highlighting the importance of protecting Charter rights and deterring future Charter breaches.

Marlys Edwardh and Frances Mahon of Sack Goldblatt Mitchell LLP represent the David Asper Centre and the BCCLA. Second-year University of Toronto JD students Neil Abraham and Winston Gee worked on this case through the Asper Centre clinic.

The David Asper Centre and BCCLA’s argument in the case is available here.