Canada: Supreme Court Refines The Test For Damages For Non-Disclosure: Henry V. British Columbia (Attorney General)

Last Updated: May 11 2015
Article by D. Lynne Watt and Matthew Estabrooks

Most Read Contributor in Canada, October 2018


This decision deals with the issue of whether a person who was wrongfully convicted due to a breach of his constitutional rights can claim Charter damages based on the negligent conduct of the Crown Attorney. There was no claim that the conduct of the Crown Counsel was malicious but, rather, that it was a marked and unacceptable departure from the reasonable standards expected of Crown counsel.

Until now, the jurisprudence only permitted claims for malicious prosecution against a prosecutor who intentionally acted to subvert justice. Mr. Henry sought to advance a claim against the Crown for non-malicious acts and omission of Crown counsel.


Mr. Henry was convicted in 1983 of 10 sexual offence counts, was declared a dangerous offender and sentenced to an indefinite period of incarceration. He remained incarcerated for almost 27 years until he was granted bail in 2009 and subsequently acquitted in October 2010. Mr. Henry then sought damages against the prosecutors for the injuries he alleges he suffered as a consequence of the wrongful conviction and incarceration. The claim relates to the actions of Crown counsel through the course of the trial and subsequent appeal processes. 

Mr. Henry alleged that the Crown failed to make full disclosure of relevant information that was material to his ability to make full answer and defence. The B.C. Court of Appeal agreed and declared a mistrial (some 27 years after the conviction was entered). Rather than ordering a new trial, the Court of Appeal entered acquittals for each of Mr. Henry's convictions.

Mr. Henry subsequently commenced a civil action against the Attorney General of British Columbia, amongst others, for breach of his Charter rights arising from the prosecutor's failure to make full disclosure of the relevant evidence. Mr. Henry sought to advance various causes of action, including negligence, malicious prosecution, and breach of his sections 7 and 11(d) Charter rights. The dispute that ended up before the Supreme Court of Canada was the proposed claim for Charter damages against the Attorney General for non-malicious conduct.  

The B.C. Court of Appeal struck the claim on the basis of the existing Supreme Court authority  (Nelles v Ontario, [1989] 2 SCR 170; Proulx v Quebec (Attorney General), 2001 SCC 66; and Miazga v. Kvello Estate, 2009 SCC 51) that foreclosed prosecutorial liability for negligence and required evidence of malice.

The Decision of the Supreme Court

Justice Moldaver delivered the reasons for decision of the majority (Abella, Wagner and Gascon JJ., concurred). The Chief Justice (for herself and Karakatsanis J.) wrote a separate set of reasons, concurring in the result.

Both Moldaver J. and the Chief Justice declined to follow the existing case law with respect to the test for malicious prosecution and the necessity to find intent on the part of the prosecutor. Moldaver J. noted the distinction between malicious prosecution, where the decision to commence or continue a prosecution is discretionary, and the Crown's disclosure obligations, which are mandatory. With a mandatory obligation, the intention of the prosecutor is irrelevant: either there is proper disclosure or there is not.   

The majority enunciated a test for establishing an actionable breach of Charter rights arising out of the failure to disclose information to the accused: (1) the prosecutor must have intentionally withheld information; (2) the prosecutor must have known or ought reasonably to have known that the information was material to the defence and that failure to disclose would likely impinge on the accused ability to make full answer and defence; (3) withholding the information violated the accused's Charter rights; and (4) he or she suffered harm as a result. The majority was careful to limit the application of the test and the scope of the decision only to the issue of wrongful non-disclosure and declined to consider whether a similar threshold would apply in circumstances relating to other potential breaches of Charter  rights.

The Chief Justice, concurring in the result, also noted the distinction between the exercise of prosecutorial discretion and the legal obligation to disclose relevant evidence. The Chief Justice held that it is not necessary to establish that the Crown breached it constitutional obligation intentionally, or with malice, but only that the breach of the disclosure obligations had a direct and serious impact on the fairness of the trial and that Charter damages would be an appropriate and just remedy, serving one or more of the functions of compensation, vindication and deterrence.

The Policy Issues

Moldaver J. was clearly alive to the policy issues - characterized as concerns over good governance - expressed by the Attorneys General in their submissions. If the threshold of gravity is set too low for a Charter damages claim alleging Crown misconduct, the ability of prosecutors to discharge their important public duties will be undermined, with adverse consequences for the administration of justice.  Moldaver J. recognized that the concerns expressed by the Attorneys General  were "very real" and provided "compelling reasons" why the threshold for a claim for Charter damages had to be set high. These concerns included:

  • that the spectre of liability could negatively influence the decision-making of prosecutors;
  • that the fear of civil liability could have a chilling effect on prosecutors; and
  • the fact that a low threshold could create a flood of civil claims that would force prosecutors to spend undue amounts of time defending civil actions, rather than carrying out their duties as prosecutors.

These concerns lead Moldaver J. to conclude that the availability of Charter damages should be circumscribed through the establishment of a high threshold. Moldaver J. did not believe that the standard of a "marked and unacceptable departure from the reasonable standards expected of the Crown counsel" was sufficiently rigorous. The test that Moldaver J. proposed focuses on an intentional decision to withhold relevant information and actual or imputed knowledge of the consequences of the failure to disclose. The test is intended to shield prosecutors from frivolous claims that would divert them from their prosecutorial duties.

By setting out the framework of a four-part test, Moldaver J. is attempting to  balance the competing interests of not subjecting Crown prosecutors to a flood of civil claims while allowing a victim of intentional misconduct to pursue a claim for Charter damages.

Finally, Moldaver J. held that a claimant must also establish causation:  that is, "but for" the wrongful non-disclosure, the claimant would not have suffered the harm that was occasioned. This guarantees that liability is restricted to cases where the intentional failure to disclose was actually the cause of the harm to the accused.

Mr. Henry's case is merely at the pleadings stage. The  result of the Supreme Court's decision permits him to amend his pleading to include a claim for Charter damages against the Attorney General alleging that the Crown, in breach of its constitutional obligations, caused him harm by intentionally withholding information material to his defence. Whether Mr. Henry can prove those allegations and whether Charter damages are the appropriate remedy remain to be determined in the next phases of the case. 

What also remains to be seen, over the coming years, is whether the threshold test set by the Court has achieved the proper balance between permitting claims for harm caused by non-disclosure and protecting Crown prosecutors in the performance of their duties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions