There has been much buzz circulating recently around the wrongful conviction of Ivan Henry, a BC native who spent nearly 27 years behind bars for a series of sexual assaults he never committed. After being acquitted in 2010 of his 10 convictions, Henry initiated an action against the province of BC for which he sought $43M in damages. In his ruling released on June 8, 2016 Chief Justice Christopher Hinkson awarded Henry just over $8M in damages: $530K in compensatory damages for lost wages, $56,692 in special damages, and $7.5M as vindication of the gross abuse of his Charter rights.
As part of his painstakingly long 97-page decision, Justice Hinkson lambasted the Province for intentionally breaching Henry’s disclosure rights under ss. 7 and 11(d) of the Charter. Using the test for wrongful non-disclosure as set out by Maldover J. in the 2015 SCC decision granting Henry’s appeal, Justice Hinkson found that the Crown intentionally withheld information that it knew was material to Henry’s defence. Some of this information included results of wiretap, DNR, and other tracking device evidence showing no link between the sexual assaults and Mr. Henry. Even more appalling was the Crown’s non-disclosure of forensic evidence showing that the perpetrator’s sperm had been located for four of the sexual assaults, and that it was not Henry’s.
In a haphazard attempt to defend its blatant misconduct, the Crown tried advancing the argument that the disclosure requirements back in 1983 (i.e. Pre-Stinchcombe era) were not at stringent as they are today, and that their conduct should be assessed against the more relaxed Boucher standards. While it is true that disclosure practices have become more robust since Boucher, Justice Hinkson still found that the Crown failed to live up to its most basic constitutional obligation to disclose reliable exculpatory evidence that would have exonerated Henry. In other words, the Crown’s conduct was objectionable by both the Stinchcombe and Boucher standards.
A second argument that the Crown tried advancing was that Henry should be held contributorily negligent for his wrongful conviction, because he chose to represent himself when legal aid was available to him. In making its argument, the Crown cited the opinion of Mdm. Justice Bennett in R v. Crichton 2015 BCCA who stated “if a person does not receive a fair trial because he or she chose to represent him or herself, even when counsel was available, the fault lies with the accused and no remedy is available.”
From an access to justice perspective, this argument seems particularly disturbing. Putting issues of cost aside, why should litigants be expected to retain counsel as a pre-requisite to receiving a fair trial? Is this not a form of victim blaming? As Justice Hinkson opined, if anything, the Crown should have a heightened responsibility to ensure that the defendant be treated fairly when he or she has no advocate acting on his or her behalf. Surely, this responsibility derives from the role Crown counsel play in being “Ministers of Justice.”
Furthermore, while cost may not have been the issue in Mr. Henry’s refusing counsel, in the majority of cases it is the primary contributing factor. In her seminal Report on Self-Represented Litigants, Dr. Julie Macfarlane exposed just how difficult it can be for accused persons to retain counsel. Of the 259 self-represented litigants (SRL’s) interviewed as part of Macfarlane’s study, more than 90% reported that financial concerns motivated their decision to self-represent. With counsel fees averaging $350-400 per hour and legal aid requirements being prohibitive for middle and even low-income Canadians its no wonder that there is an SRL crisis in this country.
Other reasons for self-representation as cited in a recent White Paper Prepared for the Association of Canadian Court Administrators (ACCA) and referenced in the Canadian Forum on Civil Justice’s Everyday Legal Problems and the Cost of Justice in Canada: Overview Report include low education, low literacy, ideological motivations, and perceiving counsel as unnecessary. Indeed, in Mr. Henry’s case, the psychiatric evidence suggested that Mr. Henry’s refusing counsel had to do with his inability to understand the significance and long-term consequences of his legal predicament.
At the end of the day, whether or not the defence is represented, the Crown has a constitutional duty to ensure trial fairness by making the necessary disclosures that will allow the accused to make full answer and defence. Let us not forget the powerful words famously articulated by Justice Rand in the Boucher decision: “The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.”
— Mitchell Perlmutter
Canadian Forum on Civil Justice
Mitchell Perlmutter is a research assistant at the Canadian Forum on Civil Justice. He holds an undergraduate Honours BA in Humanities from York University and will begin his second year at Osgoode Hall Law School in the fall.