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


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.

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