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Henry v. HMTQ

This case considers 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.

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 seeking damages against the provincial government for its failures to disclose relevant information. The Crown argues that his claim should not proceed as Mr. Henry is unable to show that Crown prosecutors acted maliciously.

The David Asper Centre for Constitutional Rights and the BC Civil Liberties Association (BCCLA) intervened in this case. We argued 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 argued 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.

The Supreme Court of Canada issued its judgment in May 2015. It was unanimous in finding that there is no malice requirement for accessing damages as a constitutional remedy. However, the Court split in its judgment on whether Charter damages would only be available in cases where the Crown intentionally breached its constitutional obligations. Writing for the majority, Justice Moldaver set out a new test for Charter damages in cases involving constitutional breaches arising from Crown failure to disclose information in criminal proceedings. According to the majority, constitutional damages are only available where the Crown intentionally withholds information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defense. In short, constitutional damages would only be available where the Crown intentionally engages in unconstitutional conduct. As the BCCLA and Asper Centre argued, however, Charter violations occur absent any particular “fault” on the part of the state, and requiring demonstration of prosecutorial intent to engage in unconstitutional conduct ignores this faultless aspect of Charter liability.

In a concurring judgment, Chief Justice McLachlin rejected the new framework set out by the majority. In her view, the framework set out by Ward in determining the availability of Charter damages sufficiently addresses the concerns raised by the majority with respect to potential interference with the day-to-day work of prosecutors. The Crown’s duty to disclose relevant evidence is a constitutional obligation. Breach of constitutional rights demands a constitutional remedy. Damages are one such remedy. The Chief Justice saw no reason to require an intention to breach the Charter for access to constitutional damages, and instead adopted an approach similar to the one proposed by the BCCLA and Asper Centre.

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

Supreme Court of Canada decision

Supreme Court of Canada