Strategizing in the Shadow of Precedent: Another look at Henry v British Columbia
An earlier post provided a summary of Henry v British Columbia, 2015 SCC 24 [Henry]. Unanimously overturning a decision of the British Columbia Court of Appeal (“BCCA”), the Supreme Court of Canada (“SCC”), held that the plaintiff, who was wrongfully convicted and consequently spent twenty seven years in prison for crimes he did not commit, could sue the government for a violation of his Charter rights. The legal basis for such a claim is found in s. 24(1) of the Charter, which states that “[a]nyone whose rights or freedoms…have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
Henry is interesting not so much for its plausible outcome, but for the question of judicial strategy and litigation strategy, both the result of the need to respond to the SCC’s cases on the tort of malicious prosecution.
Dealing with a Difficult Precedent
As late as 2009, in Miazga v Kvello Estate,  3 SCR 339 [Miazga], the Court unanimously affirmed its earlier decisions that to succeed in a claim of malicious prosecution, the plaintiff needs to prove malice on the part of the prosecution. The Court’s language could not have been clearer about what that meant:
Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice…. By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds, by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence (Miazga, paras 80–81).
As this is such a recent case, overturning Miazga would have been problematic (not least as three of the justices on the Henry panel were also on Miazga). And technically, neither the Henry five-strong majority, written by Justice Moldaver, nor the concurrence of Chief Justice McLachlin and Justice Karakatsanis, changed anything from Miazga. In fact, both quoted and endorsed Miazga’s reasoning and conclusion with regard to the tort of malicious prosecution; what they did instead was to hold that the malice requirement was not applicable to a s. 24(1) claim. They differed, however, over the appropriate mens rea requirement for such a claim. (The term “mens rea” is not often used outside the criminal law context, but there is no reason not to use it in this context.) The majority thought that intention was the right level (Henry, para 32); the concurrence, though not using that term, effectively adopted a strict liability standard, subject to policy-based restrictions on liability.
On a closer inspection, however, Henry looks like it kept the holding of Miazga intact while eviscerating much of its spirit. No-one who suffered a wrongful conviction would go down the malicious prosecution route if a s. 24(1) claim promises the same outcome but has a lower mens rea requirement. The Henry majority was probably aware of this, so it insisted that its holding applied only to a particular kind of prosecutorial misconduct that took place in Mr. Henry’s case, the non-disclosure of relevant evidence, leaving untouched other kinds of prosecutorial misconduct.
Though very skilfully executed, the result is not pretty. Both the majority and the concurrence took something that was only a side issue in the BCCA and British Columbia Supreme Court—the non-disclosure of potentially exonerating evidence—and made it the linchpin of the decision. As a result, after Henry “initiat[ing] or continu[ing] an improperly motivated prosecution” (Henry, para 58) are only covered by the tort of malicious prosecution, while the non-disclosure of relevant evidence is now subject to a s. 24(1) claim. The status of other kinds of prosecutorial misconduct, including acts that seem more serious than non-disclosure (e.g., tampering with evidence, forging evidence) remains unclear, as the majority expressly leaves “new situations in future cases” to be decided “as they arise” (para 33). In fact, it leaves them doubly unclear: Serious though they may be, it is not obvious that all of them constitute a violation of a defendant’s Charter rights. For such cases, malicious prosecution remains the only available means of redress. Even for those cases that do, Henry leaves undecided the mens rea applicable to them.
Both the majority and the concurrence attempted to justify the distinction between the malice requirement in the tort and a lower requirement in the constitutional context by distinguishing between the discretionary decision to prosecute and the duty (and a constitutional one at that) to disclose evidence once a decision to prosecute has been made. For the majority this amounted to a somewhat lower mens rea requirement of intention rather than malice. The concurrence was more radical and sought to eliminate the mens rea requirement altogether from s. 24(1) cases. It took the discretion/duty distinction to imply a malice/strict liability distinction in the mens rea requirement.
Either way, the argument is too quick. That a public official has discretion does not imply a malice requirement in other contexts of tort liability of public authorities, much of which is governed by negligence. Nor does the argument from the existence of a duty to strict liability (subject to policy-based restrictions) work, for the existence of a right does not decide the content of the duty. When the constitutional right to all relevant information relating to a prosecution (a defendants’ right to receive certain “things”) is translated to a duty of certain individuals to act in certain ways, there is nothing out of the ordinary in thinking of it as implying duty on the part of the prosecutor to conduct him- or herself reasonably.
(Perhaps the Court could have distinguished between the two types of cases in the following way: it is possible to initiate and continue criminal proceedings with malicious intent while conducting them exactly “by the book.” The lower mens rea requirement in s. 24(1) cases is justified in those cases in which the prosecution went beyond the book. Though a tenable distinction, in reality it is unlikely that there will be too many cases of malicious-but-otherwise-perfectly-proper prosecution.)
The effect of the decision is that for the sake of affirming the correctness of the Miazga decision, both the majority and the concurrence adopted a patchwork approach that is difficult to defend: it implies that criminal defendants have a constitutional right to receive all relevant evidence, but that “mere” wrongful prosecution and conviction, perhaps even the submission of inadmissible evidence, raise no constitutional issues and are only subject to the tort of malicious prosecution. In Proulx v Quebec (AG),  3 SCR 9 [Proulx], one of the rare instances in which a malicious prosecution claim actually succeeded, the SCC accepted that “the charges brought against the appellant were based on fragments of tenuous, unreliable and likely inadmissible evidence” (Proulx, para. 34). (Though a Quebec case, the majority in Proulx held that the applicable law in this case is similar to the tort of malicious prosecution.) If such acts are not considered a violation of a constitutional right, then they are only subject to a possible claim of malicious prosecution, although it is hard to see why such behaviour is any less deserving of the lower mens rea requirement recognized in Henry for non-disclosure of relevant evidence.
If, on the other hand, the court will move in the future to handle cases with Proulx-like facts under s. 24(1), then the Court would have been more honest in saying that the malicious prosecution precedents up to Miazga need to be abandoned now, and that the new decision in effect constituted a major substantive change to the tort of malicious prosecution. It would have been better to say that the old tort, which, as the majority acknowledged, has its origins in eighteenth century England, should be changed to fit Canada’s present-day legal and social environment. Such a change would not have been too difficult to bring about. The SCC stated on numerous occasions (e.g., in Hill v Church of Scientology,  2 S.C.R. 1130) that the common law must be interpreted in a manner consistent with Charter values. In the case of malicious prosecution, a tort that nowadays is essentially limited to public officials, such a change would have been particularly easy to bring about. Perhaps it is the penchant for public law (and especially constitutional law) over the older common law that explains why the Court preferred “reforming” the tort of malicious prosecution from without, instead of updating it from within.
Either way, though technically not touching the tort of malicious prosecution, after Henry that rather forlorn tort looks even less important. Hill v Hamilton-Wentworth,  3 SCR 129 now allows claims for negligent police investigation; Henry now allows some claims based on prosecutorial misconduct with less than malice. Future litigants are sure to heed the Court’s call for testing other kinds of prosecutorial misconduct as a Charter violation.
Perhaps, however, the decision can be justified on more pragmatic grounds. The Court—both the majority and the concurrence—had to find some wiggle room between respecting a recent precedent and avoiding an outrageous outcome. The majority felt the pressure of the precedent, or if it is any different, the policy rationale behind it, more strongly than the concurrence, but both were written against the background of Miazga and its predecessors. Against a rather difficult set of an uncompromisingly narrow scope for the tort of malicious prosecution, the Court maneuvered itself to a plausible outcome in this particular case, even if this came at the expense of what one would expect of a SCC decision: clear guidance to lower courts in handling future cases.
How to Deal with Difficult Facts
I suggested the Court may have been influenced in the outcome it reached by the extreme facts of this case. It is the same set of facts that should have been on the minds of the prosecutors—the defendants in this case. In addition to the defendant, the British Columbia Attorney General, the attorneys general from all provinces, as well as the Attorney General of Canada, intervened urging the Court to uphold the BCCA decision. They were defeated, despite what looked like a winning argument. The policy considerations that justify limiting tort liability for wrongful prosecution to malice seem to be equally applicable however the claim is labelled.
That is a solid enough argument and yet it failed. What the attorneys general apparently did not take into account is that the outcome they asked the SCC to affirm was outrageous. Mr. Henry spent twenty seven years in prison for a crime he did not commit, when there was evidence strongly suggesting a serious prosecutorial misconduct. To tell Mr. Henry that he cannot get compensated because that misconduct did not amount to malice was, understandably, too much for the SCC to swallow. In the end, it found the way to make room for the government to pay for its error.
For obvious reasons, the British Columbia government should have agreed to pay Mr. Henry without having him go up the entire Canadian judicial system a second time. But even looking at the matter in a more calculated, cynical way should have made them rethink their strategy. It would have been better to test this question on a different set of facts. It would have been wiser to quietly pay Mr. Henry and wait for another test case. A wrongful conviction that led to a few months’ imprisonment might have elicited less constitutional sympathy.
Of course, it is easy to say this now, but whoever considered the question of contesting Mr. Henry’s claim all the way to the SCC should have thought harder about the potential risk of trying to defend a no-liability outcome against facts as egregious as they are in this case. As a result, prosecutorial bodies in Canada now have to live with an SCC precedent that they fought hard to prevent.