Henry v British Columbia: Defending Rights, or the State?

The Sorry Tale of Mr. Henry

Mr. Henry is an average person with an average life. Then one day, he is convicted of 10 sexual offences, declared a dangerous offender and sentenced to indefinite imprisonment. He spends the next 27 years in prison, writing dozens of appeals and requests, and, presumably, spending the rest of his time thinking about the cosmic unfairness of the universe and what he has done to deserve all this (which is nothing really).

27 years later, the British Columbia Court of Appeal, finally confirms that our protagonist is entirely innocent. It turns out that his trial was badly botched because the prosecution somehow failed to provide him with 30 inconsistent victim statements, forensic and medical evidence, and information concerning the existence of another suspect, twice arrested in the vicinity of the attacks (who knew all that would be important).

Unfortunately, this was not the plot summary of an amateur’s first play, but real events that led to the May 1, 2015 decision of the Supreme Court of Canada (“SCC”) in Henry v British Columbia (Attorney General), 2015 SCC 24 [Henry].

Money does not buy back time, but it helps

After Mr. Henry was released, he decided that if the state, by mistake, took away almost three decades of his life, then he should at least get some compensation for his lost youth, liberty, and opportunities, and, I imagine, for catastrophic and debilitating loss of faith in mankind. He sued the City, the Attorney General of British Columbia and the Attorney General of Canada for damages resulting from wrongful conviction and imprisonment. The controversy came when he sought leave to amend his pleadings to, among other things, include a claim for a monetary remedy under s 24(1) of the Charter. He alleged his ss. 7 and 11(d) Charter rights were breached by the Crown’s non-malicious failure to provide full disclosure. The SCC needed to decide whether a Charter remedy is available for Charter breaches resulting from non-malicious prosecutorial conduct.

The SCC avoids a ravine, but falls into a pothole

As a group, the Justices avoided the ravine: all six, with good reason, held that requiring proof of malice to make the Charter remedy available was too much. Four of them, headed by Justice Moldaver, nonetheless fell into a pretty big pothole: the majority found that the plaintiff must prove that the prosecutors intentionally withheld information which they knew, or ought to have known, to be material to the defence. It was only the Chief Justice and Justice Karakatsanis who steered clear: they would omit the intention requirement, requiring only proof that a Charter remedy was appropriate and just “to advance the purposes of compensation, vindication or deterrence.” Unfortunately, it was four against two.

A Shield for the State

The majority favoured the higher threshold for fear of diverting prosecutors away from their duties, and for fear that their actions may become motivated by avoidance of civil liability, rather than principle. Although these fears have an air of legitimacy, they are baseless. First, cases of such damaging non-disclosure are rare. Such issues are usually dealt with in criminal trials, and if a case like Mr. Henry’s does come up, I, for one, will not lament that the prosecutors involved in his matter have to spend some time in court. Second, prosecutors have a constitutional obligation to provide full disclosure – what is or is not material to the defence, and, therefore, what ought or ought not be disclosed, is not dependent on anything, including prosecutors’ fears. If more tangential information ends up disclosed to the defence, so be it – by definition, it is tangential anyway.

The majority claims that its test is responsive to cases like Mr. Henry’s, since intention “may be inferred” (Henry, para 86) [emphasis added] in situations where the prosecution had information and failed to disclose it, or was put on notice that information is available and failed to obtain it.

I find this side note on intention to be of little comfort, because the operative words are “may be” and “inferred.” First, the inference may, but need not, be drawn, and there are no stated criteria to determine when an inference is appropriate. Second, an inference remains an inference. The Crown can lead rebuttal evidence, and if it proves that its non-disclosure was not intentional, the plaintiff is out of luck. So, if you are falsely imprisoned because Nancy at the Crown’s office forgot to file a forensic report into your folder, do not hold your breath for a Charter remedy.

Defending the Status Quo

In practice, then, the decision does not significantly change the state of the law. Before Henry, you could either get compensation by proving that non-disclosure was intentional and malicious, or if you could successfully battle it out in a negligence claim (with all the complexities of establishing the tort). Post Henry, a Charter remedy is available if you can prove the non-disclosure was intentional, even if it was not malicious. I do not see an appreciable difference between this test and the tests requiring malice. The only type of non-disclosure I can think of that would be both intentional and non-malicious is one resulting from a good faith error of judgment. That is not what the court has in mind, however: paras 69 and 70 clearly state that good faith errors ought not attract liability.

In the end, the Court sends two strong messages. First, the Court will make it no easier for victims of negligence to be compensated – they must establish the respective tort (which can be hard when, for example, the prosecutor is dead, as in Henry), or get nothing. This seems like a harsh thing to say to those who were already ill-used by the justice system.

Second, the majority is only concerned with vindication. Unless the Crown had intended to fail in its obligations, in which case it can be morally condemned, the plaintiff is out of luck. Compensation and deterrence, the primary reasons for which we are ready to slap a manufacturer with liability for a defective product that gave someone indigestion, apparently do not apply to the State.

The Reality of Fear

It seems to me that the real fear animating the majority’s decision is the fear of establishing a broad, Court-approved wrongful imprisonment compensation scheme where no statutory scheme of the kind exists. Perhaps the minority’s test came too close to such a scheme for the majority’s comfort. On the minority’s test, a Charter remedy will be available to victims of good-natured incompetence or some sort of act of God, while victims of negligence would have an easier onus of proof to discharge, which was not the case before.

However, such a scheme does not seem outrageous. Even the minority’s test is far from compensating everyone automatically: remedies will not be available to those whose Charter rights were not breached, such as those with shoddy defence, and if it does compensate those who were impacted by an act of God, perhaps it is not such a bad outcome in a system that purports to have the utmost concern for keeping the innocent out of its prisons. As for the concerns about a multiplicity of remedy claims: more claims do not necessarily equate to more frivolous claims. Most litigants and lawyers will not enter into protracted litigation with no chance of success.

In the end, the outcome in Henry was disappointing because, “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach” (Henry, para 64).