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”.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.