Published In

Supreme Court Law Review

Document Type

Article

Publication Date

2017

Subjects

Wrongful Conviction, Innocence, Compensation, Charter Damages, Sexual Assault, Rape, Complainants

Abstract

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.

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