2015 SCC 24
Mr. Henry was imprisoned from 1983-2009 on multiple sexual assault convictions, which were proven wrongful on the strength of DNA evidence and the guilty plea of an alternate suspect in 2002. The BC Court of Appeals overturned the convictions and entered acquittals in 2010, and Mr. Henry sought damages under s.24(1) of the Charter against the provincial government for its failure to disclose relevant information during his trial. The prosecution had failed to disclose several key facts, including the DNA evidence, the existence of an alternative suspect and the fact of several similar sexual assaults after Mr. Henry’s arrest. The majority of the Supreme Court held that a cause of action for Charter damages was available where the Crown breached its constitutional obligation to disclose information which it knew or ought to have known was material to the defence, and that the failure to disclose it would likely impair the accused’s ability to make full answer and defence. This requirement does not require malice on the part of the Crown. To merit damages, the accused must also show on the balance of probabilities that the wrongful non-disclosure caused them legally-recognizable harm.
The Asper Centre intervened jointly with the BC Civil Liberties Association in this case, and were represented by Marlys Edwardh and Francis Mahon of Sack Goldblatt Mitchell LLP.