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Tomorrow, the Supreme Court of Canada will hear oral arguments in a case that has the potential to make new law in the way that courts review the conduct of Crown Attorneys, and in the way that courts deal with claims for damages for wrongful convictions.

The case involves Ivan Henry, convicted of sexual assaults that had occurred in Vancouver between 1980-1982. Mr. Henry came under suspicion, was charged with the offences and identified by eight of the victims. After a two week trial in which he represented himself, Mr. Henry was convicted in March 1983, and declared a dangerous offender. It was not until October 2010, having served 27 years in prison during which his wife and mother died and having missed the childhood of his two girls, that the British Columbia Court of Appeal overturned the convictions. The Court held that the eyewitness identifications of the victims were not strong enough to support the convictions. In each case, the perpetrator was a stranger to the victims, there was poor lighting, the circumstances were stressful, the perpetrator hid his face, and two of the victims were not wearing their glasses.

Mr. Henry brought a legal action against the police and Crown prosecutors. He alleges that the prosecutors failed to provide him with witness statements, and inform him of biological materials that could have been subjected to DNA testing, thus leading to his wrongful conviction. He claims damages under section 24(1) of the Charter of Rights and Freedoms, which provides that anyone whose rights and freedoms guaranteed by the Charter have been infringed or denied “may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Mr. Henry does not say that the prosecutors acted with malice, but rather that they violated their responsibility to make full disclosure of material evidence.

The issue before the Supreme Court of Canada is an important one. On the one hand, our justice system must do everything possible to guard against wrongful convictions. Crown Attorneys play a crucial role in the system. They are considered ministers of justice, concerned not with winning or losing but with presenting evidence fairly according to law. The guarantees of a fair trial embodied in the Charter of Rights also exist to protect individuals against wrongful convictions. If those rights are violated, there must be adequate remedies in place to redress the matter. That is what section 24(1) is designed to achieve.

On the other hand, there must be limits placed on the ability of litigants to access the civil justice system in cases of this kind. Subjecting Crown Attorneys to civil litigation could lead to the re-trial of cases years after the fact, it could cause them to adopt a defensive posture and would divert their attention away from other duties.

The seminal case in this area dates back to 1989, and involved Susan Nelles and baby deaths at the Toronto Hospital for Sick Children. Ms. Nelles, a nurse at the hospital, was charged with the deaths but discharged at a preliminary hearing. She brought a claim against the Crown Attorneys involved in the case. The prosecutors argued that there should be a complete prohibition on civil claims for actions taken in the course of a prosecution. The Supreme Court rejected that position, but held that those types of claims would be exceedingly rare and difficult to win. It would have to be shown that a prosecutor acted with malice, essentially committing fraud by using the office of Crown Attorney for a purpose inconsistent with the role of administering justice. Imposing a lower standard such as negligence, the Court said, would risk a floodgate of lawsuits and result in the re-litigation of criminal cases years after the fact.

In the case now before the Court, Mr. Henry says that the important interests served by the Charter of Rights, and the danger of wrongful convictions, demand that courts apply a lower standard of proof for claims against Crown Attorneys. That is the most effective way, he says, of vindicating those rights and deterring inappropriate conduct. Whichever way the Court decides, it will have broad implications for our justice system.