A Right Without a Remedy? No Redress for Wrongful Conviction in Henry v British Columbia
Henry v British Columbia (Attorney General), 2014 BCCA 15, was recently granted leave to appeal to the Supreme Court of Canada (“SCC”). In 1983, Mr. Henry was wrongfully convicted of 17 sexual offences, for which he spent more than 27 years in jail. He was declared a dangerous offender and would have been incarcerated for an indefinite period of time. However, he was finally acquitted in 2010, after Vancouver police reopened unsolved sexual assault cases from the 1980s.
Mr. Henry’s wrongful conviction resulted from a series of serious and tragic errors by the police and Crown prosecutors at the time. The police had neglected to check Mr. Henry’s alibis and never tested him against the physical evidence found at the scene.
Mr. Henry was made to participate in a “bogus” police line-up comprised of plainclothes police officers before he had the opportunity to speak to a lawyer. In addition, Mr. Henry was the only one in the line up with red or curly hair and the only one being restrained by three uniformed police officers. Furthermore, the Crown withheld evidence that would have raised a reasonable doubt as to Mr. Henry’s guilt. As a result, Mr. Henry brought a cause of action that alleged that his wrongful conviction had been the result of gross negligence by the prosecution in not meeting its disclosure obligations.
Mr. Henry had originally made a claim against the province for damages in negligence and breach of his Charter rights in Henry v British Columbia (Attorney General), 2012 BCSC 1401 [Henry No. 1]. However, the trial judge in Henry No. 1 dismissed Mr. Henry’s claim for negligence in finding that the claim for a breach of Charter rights was founded on Mr. Henry’s allegations of malicious conduct. As a result, Mr. Henry would need to meet the higher standard of malice, rather than negligence, to be entitled to damages.
In Henry v British Columbia (Attorney General), 2013 BCSC 665 [Henry No. 2]. Mr. Henry applied to amend his pleadings to allege that he was entitled to Charter damages against the province without alleging malice. The province opposed this application as not disclosing a cause of action and argued that without a finding of malice there can be no entitlement for Charter damages against the Crown given the immunity that the Crown enjoys.
Nevertheless, the trial judge in Henry No. 2 allowed Mr. Henry to amend his pleadings to allege:
The various acts and omissions that violated the Plaintiff’s right to disclosure and/or his right to full answer and defence and/or his right to a fair trial, as described in paragraphs 113-119 above, were a marked and unacceptable departure from the reasonable standards expected of the Crown counsel.
The trial judge also found that this pleading constituted “a cause of action known to law” (para 64). Thus the Attorney General of British Columbia, joined by the Attorney General of Canada (“AG”), appealed from the trial judge’s decision to allow the amendment.
On appeal, the AG argued that the trial judge erred in allowing Mr. Henry to seek damages against the prosecution for conduct “less than malicious” such as negligence. It was argued at paragraph 68 of the appellant’s factum that a lower bar for prosecutorial misconduct would leave the prosecution open to a “virtual re-trial of the criminal trial after the fact; inviting a civil court to second-guess decisions made along the way.” The British Columbia Court of Appeal (“BCCA”) agreed with the AG, allowing the appeal and dismissing Mr. Henry’s application to amend his pleadings.
The Prosecutor’s Role
At the BCCA, Justice Hall recalled the public and truth-seeking function that the prosecution is obliged to serve in society. The purpose of the prosecution is not to win at all costs, but rather, to present the evidence. The Court was guided by the leading cases in which some form of Crown error was alleged, such as Nelles v Ontario,  2 SCR 170, and Vancouver (City) v Ward,  2 SCR 28.
The Court took note of observations made by Justice Lamer concerning prosecutorial immunity on pages 195-197 of Nelles, that “to create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur … such a result is undesirable and provides a compelling underlying reason for finding that the common law itself does not mandate absolute immunity.” Thus policy considerations weigh against absolute immunity for prosecutors, as it would leave private citizens without a remedy in cases of malicious prosecution.
However, the need to show malice is a much higher bar to meet for damages in comparison to negligence. Malice can be inferred when it appears that the proceedings are being “conducted for other than the legitimate purpose of enforcing the law” (para 7). Justice Hall opined that if malicious conduct can be shown, a prosecutor could be liable for both tort and Charter damages.
A section 24(1) remedy under the Charter amounts to a finding that conduct or government action violated the rights of an individual under the Charter. The Ward factors for an award of damages under s. 24 pose the following guidelines for when an award of damages would be an “appropriate and just” remedy:
- Has there been a breach of a Charter right for which an individual remedy needs to be awarded?
- Will damages “serve a useful function or purpose”?
- Do other considerations render damages inappropriate or unjust?
- Is the quantum of damages appropriate?
It would appear that the injustice suffered by Mr. Henry would meet all these requirements. However, countervailing factors, of which qualified prosecutorial immunity is part of, could mitigate against an award of damages.
In our criminal justice system the defence is at a clear disadvantage against the power and resources of the state in prosecuting offences. Although groups such as the Association in Defence of the Wrongly Convicted and various Innocence Projects that operate out of law schools work to exonerate individuals believed to be innocent, many more go undiscovered.
In a system in which guilty plea deals are encouraged, those who maintain their innocence face an uphill battle against the power of the state. However, there is hope that Mr. Henry may gain some retribution for the gross miscarriage of justice to which he was subject when the SCC examines his case.
It will certainly be one to watch for the legal issues that require clarification in this case. In particular, how can there be a right without a remedy? In addition, is the greater bar for prosecutorial error desirable in every case? Is the bar for prosecutorial error even properly articulated? It certainly will be interesting to see how the Supreme Court addresses these questions when judgment in Mr. Henry’s case is released.