Henry v British Columbia: Still Seeking a Just Approach to Damages for Wrongful Conviction

“Henry v. British Columbia (Attorney General) was the first case in which a claimant sought damages under section 24(1) of the Canadian Charter of Rights and Freedoms for breaches of rights that led to a wrongful conviction and imprisonment. In its 2015 decision, the Supreme Court of Canada clarified the criteria for the award and quantum of such damages. In June 2016, Hinkson C.J.S.C. awarded $8,086,691.80 in damages to Ivan Henry in compensation, special damages and “to serve both the vindication and deterrence functions of s. 24(1) of the Charter”. This award reflected Hinkson C.J.S.C.’s findings that: Crown Counsel intentionally withheld relevant information from Henry in breach of his Charter rights; the wrongful non-disclosure seriously infringed Henry’s Charter rights; and if Henry had received the disclosure “the likely result would have been his acquittal at his 1983 trial, and certainly the avoidance of his sentencing as a dangerous offender.” In this article, I describe the events that led to Ivan Henry’s civil case against British Columbia, and explain the interlocutory decisions that shaped the passage of that civil case. I attend particularly to two difficult issues: the role of demonstrable factual innocence in a trial for Charter damages; and the challenges of affording constitutional rights to sexual assault complainants in a civil case that arises from wrongful conviction. Ultimately, I suggest that the Henry case illustrates the inadequacies in the Canadian approach to post-conviction review and compensation for wrongful convictions. In lieu of the adversarial process adopted in Henry, inquiries such as the one conducted by Justice Peter Cory in the Sophonow case offer a model that holds greater potential for doing justice to those whose lives and rights may be affected by a wrongful conviction