The B.C. Supreme Court's decision in A.B. v. Henry, 2025 BCSC 137 [A.B. v. Henry] is a stark reminder to criminal accused that a criminal acquittal is not always the end of the road.
This highly unusual case is the most recent in a saga of decisions involving a man who was convicted of sexual offences against 8 women in a 1983 jury trial, and then later acquitted, receiving substantial Charter damages for his wrongful conviction. In this most recent decision, Mr. Henry was found civilly liable for the sexual assaults and ordered to pay damages to five of the women who were complainants in his criminal trial.
Key Takeaways
For businesses and individuals who are facing criminal or regulatory prosecution, the key take-aways from A.B. v. Henry are as follows:
- First, a criminal or regulatory acquittal is not a finding of "innocence", and it does not provide immunity from civil damages based on the same facts. Rather, an accused who is acquitted on the higher "beyond a reasonable doubt" standard may later be pursued for civil damages on the lower "balance of probabilities" standard.
- Second, B. v. Henry is an illustrative example of the different standards of proof that apply in criminal and civil proceedings, as well as the differing procedural protections in each forum.
While Mr. Henry faced criminal proceedings before civil, it is not uncommon for regulated entities to face civil or administrative proceedings while a criminal investigation is still ongoing. After a significant regulatory incident, it is critical to account for the risk of criminal or regulatory proceedings as part of the overall litigation strategy—even where no investigation has been publicly announced. A proactive risk management strategy ensures that early litigation decisions do not prejudice your defence of subsequent criminal or regulatory charges.
At McCarthy Tétrault, our team of seasoned litigators specializes in navigating complex regulatory litigation and managing risks associated with parallel proceedings.1 With a proactive and strategic approach, we safeguard our clients' interests and ensure they remain one step ahead in the ever-evolving regulatory environment.
R. v. Henry: A Timeline
In 1983, after a 12-day jury trial, Mr. Henry was convicted of 10 serious sexual offences against 8 women. His defence at trial had been that it was not him, but someone else, who committed the offences. He was sentenced to indefinite detention.2
On January 13, 2009, the B.C. Court of Appeal made the "highly unusual" decision to reopen an appeal by Mr. Henry, citing new evidence and concerns about trial fairness.3 He would soon be released on bail after spending more than 26 years in prison.4
In 2010, the B.C. Court of Appeal found that Mr. Henry had been wrongfully convicted in his 1983 criminal trial, quashing all 10 convictions and acquitting him on all counts.5 The guilty verdict was not one that a "properly instructed jury acting judicially could reasonably have rendered".6 Rather, it was an unsafe verdict premised on "seriously flawed and unfair" eye-witness identification evidence that could not be independently corroborated.7
In 2016, Mr. Henry was awarded over $8 million in damages pursuant to s. 24(1) of the Charter, as the court found the Crown had intentionally withheld relevant disclosure from Mr. Henry, in breach of his fair trial rights under ss. 7 and 11(d) of the Charter.8
Later, five of Mr. Henry's alleged victims brought a civil claim for damages. The issue in the civil trial was whether the plaintiffs could prove, on a balance of probabilities, that Mr. Henry was the person liable for sexually assaulting them.9
Ultimately, on January 29, 2025, Mr. Henry was found liable for the sexual assaults and ordered to pay each plaintiff $375,000 in general and aggravated damages.10
A.B. v. Henry: The Civil Case
The B.C. Supreme Court's January 29, 2025 decision in A.B. v. Henry addressed the doctrine of abuse of process in parallel proceedings, finding the subsequent civil litigation was not an abuse of process by relitigation. Rather, the different standards of proof applied in the criminal and civil proceedings allowed for different outcomes in each case.
In particular, while an offender who is convicted of an offence beyond a reasonable doubt cannot later be found not to have committed the same act on the lesser "balance of probabilities" standard, the opposite is not true: "An acquittal is not a bar to a civil suit".11 To the contrary, a defendant may still "be liable on a balance of probabilities despite his acquittal".12 In other words, while the B.C. Court of Appeal had found that Mr. Henry was "not guilty of the criminal offences", it had not found "that [Mr. Henry] did not sexually assault any of the complainants".13 Moreover, the civil proceedings allowed for a "fuller and more robust review", as the court had the benefit of "more evidence and new evidence",14 including Mr. Henry's testimony, Crown disclosure that had been unavailable in the prior criminal trial, and full evidence from the plaintiffs (who participated fully as parties to the civil trial, rather than as mere witnesses in the criminal case).15
The different outcomes in R. v. Henry and A.B. v. Henry underscore the differences between the burden and standard of proof in criminal and civil proceedings, as well as the differing testimonial and evidentiary protections available in each forum:
- Standard of Proof: In a criminal proceeding, guilt must be proven on the stringent "beyond a reasonable doubt" standard, which is "much closer to 'absolute certainty' than to 'a balance of probabilities'".16 Conversely, in the civil trial, each of the plaintiffs needed only to establish liability on a balance of probabilities, which required proof that it was, in each case, "more likely than not" that Mr. Henry was the man who sexually assaulted the plaintiff.17 The court's finding that Mr. Henry was liable to each plaintiff for sexual assault meant only that it was "more likely than not that he was their attacker... on a balance of probabilities" but it did not mean that "he committed the sexual offences that he was found to have committed in 1983 beyond a reasonable doubt".18 In refusing to award punitive damages, the court rejected the plaintiffs' argument that Mr. Henry's $8,086,691.80 Charter damages award was "wrongfully gained" given that it was awarded in connection with offences which the plaintiffs argued he "did, in fact, commit".19 Instead, the court reiterated that there was insufficient evidence to convict Mr. Henry on the higher criminal standard in his 1983 criminal trial: He "should not have been convicted and should not have spent any time in jail"20 and he was "entitled to the damages that he received".21
- Burden of Proof and Testimonial Protections: In a criminal trial, the "burden of proof rests on the prosecution" and it "never shifts to the accused", as an accused is both presumed innocent and entitled to remain silent throughout his trial.22 Henry had not been required to testify in the 1983 criminal trial, and he had not done so. However, in civil proceedings, there is no presumption of innocence or right to silence.23 Quite the opposite, in the civil trial, when the defence would not commit to calling Mr. Henry as part of its case, Mr. Henry was called as a witness in the plaintiff's case.24 This worked against him: The court found that Mr. Henry was "untruthful"25 and "not a credible witness".26
- Evidentiary Protections: Evidentiary protections are more limited in civil than criminal trials. Critically, eyewitness evidence that was "probably accurate"27 would not be robust or reliable enough to meet the criminal standard of proof, but could nonetheless meet the civil standard. Similarly, evidence of an accused's criminal record is subject to stringent limitations in criminal trials, but there are no such limitations in a civil case.28 Indeed, in the civil case, the court accepted that "similar fact evidence" (e., evidence that Mr. Henry had pleaded guilty to earlier sexual offences in Winnipeg that bore a striking factual resemblance to the sexual assaults in issue) was probative on the issue of identity and that it was significant corroborative evidence that the plaintiffs' were not mistaken in their identification of him as their assailant.29
Footnotes
1. See, for example, our recent Canadian Class Actions Monitor blog post: "Not out of the woods yet: When regulatory settlements have downstream consequences for class action certification", dated October 8, 2024 (online).
2. R. v. Henry, 2010 BCCA 462 at para. 19.
3. R. v. Henry, 2010 BCCA 462 at para. 32.
4. R. v. Henry, 2009 BCCA 271 at para. 17.
5. R. v. Henry, 2010 BCCA 462 at para. 154.
6. R. v. Henry, 2010 BCCA 462 at para. 142.
7. R. v. Henry, 2010 BCCA 462 at paras. 140-141.
8. R. v. Henry, 2016 BCSC 1038 at paras. 245, 472 and 473.
9. A.B. v Henry, 2025 BCSC 137 at para. 543.
10. A.B. v Henry, 2025 BCSC 137 at para. 957.
11. A.B. v Henry, 2025 BCSC 137 at para. 585.
12. A.B. v Henry, 2025 BCSC 137 at para. 585.
13. A.B. v Henry, 2025 BCSC 137 at para. 598.
14. A.B. v Henry, 2025 BCSC 137 at para. 607.
15. A.B. v Henry, 2025 BCSC 137 at para. 590.
16. A.B. v Henry, 2025 BCSC 137 at para. 544, citing R. v. Lifchus, 1997 CanLII 319 (SCC).
17. A.B. v Henry, 2025 BCSC 137 at para. 543.
18. A.B. v Henry, 2025 BCSC 137 at para. 966.
19. A.B. v Henry, 2025 BCSC 137 at para. 965.
20. A.B. v Henry, 2025 BCSC 137 at para. 967.
21. A.B. v Henry, 2025 BCSC 137 at para. 968.
22. A.B. v Henry, 2025 BCSC 137 at para. 544.
23. A.B. v Henry, 2025 BCSC 137 at para. 545, citing F.H. v. McDougall, 2008 SCC 53.
24. A.B. v Henry, 2025 BCSC 137 at para. 14.
25. A.B. v Henry, 2025 BCSC 137 at para. 760.
26. A.B. v Henry, 2025 BCSC 137 at para. 840.
27. A.B. v Henry, 2025 BCSC 137 at para. 552.
28. A.B. v Henry, 2025 BCSC 137 at paras. 575 and 577.
29. A.B. v Henry, 2025 BCSC 137 at paras. 636 and 838.
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