When charged with an Occupational Health and Safety Act
violation, you need to be provided with complete Crown disclosure
before you can decide whether to defend the charge or seek
another resolution. Only when you have received full
disclosure can you make the informed decision about which path to
pursue. In general, "all fruits of the
investigation" must be provided to defence counsel, whether
the information assists the Crown's case or not. Failure
to provide full disclosure may result in a Canadian Charter of
Rights and Freedoms ("Charter") violation, because
it inhibits the accused's ability to make full answer and
In a recent Supreme Court of Canada ("SCC")
case, Henry v. British Columbia (Attorney General) 2015 SCC
24 (35745) the court has again emphasized the legal duty imposed on
the state by the Charter to provide full and timely
disclosure. In this case the accused was convicted on 10
sexual offences, declared a dangerous offender and spent 27 years
in prison. In October 2010 the B.C. Court of Appeal quashed
all 10 convictions based on a finding of serious errors in the
conduct of the trial. The accused in the matter had made
numerous requests for full disclosure, including all statements,
and medical and forensic information. Approximately 30
statements were not disclosed to the accused, many of which had
inconsistencies that would have assisted the defence. As well
key forensic information was not disclosed. The accused
sought civil damages for the failure.
The Attorney General of British Columbia ("AGBC")
moved to strike the causes of action from the claim that alleged
negligence and breach of the Charter. The accused applied for
leave to amend his Claim to include Charter damages for
non-malicious conduct. On appeal by the AGBC, the BC Court of
Appeal allowed the appeal ruling that the accused could not seek
Charter damages for the non-malicious acts and omissions of the
Crown lawyer. The matter was then appealed to the SCC which
allowed the appeal.
The Court held that Section 24(1) of the Charter authorizes
courts of competent jurisdiction to award damages against the Crown
for prosecutorial misconduct absent proof of malice. In other
words, where Charter damages are sought, based on allegations of
the Crown's failure to disclose information, proof of malice is
not required. A cause of action may lie where the Crown, in
breach of its constitutional obligations, causes harm to an accused
by intentionally withholding information when it knows that the
information is material to the defence, and failure to provide it
will affect the ability to make answer and defence.
This standard represents a high threshold for a successful
damages claim, but one that is lower than the proof required to
show malice. To be successful, the accused must convince the
court, on a balance of probabilities that:
The prosecutor intentionally withheld information;
The prosecutor knew or ought reasonably to have known that the
information was material to the defence and that failure to
disclose would likely impinge on his/her ability to make full
answer and defence;
That withholding the information violated his/her Charter
He/she suffered harm as a result.
The case again emphasizes the legal duty imposed on the state by
the Charter to provide full and timely disclosure. In reviewing
your charges under the Occupational Health and Safety Act,
the lawyers at CCP always seek to ensure that complete disclosure
has been provided before taking any next steps in the defence or
resolution of your matter. Click here for a list of lawyers from the CCP team
that can assist you with all your OHSA questions.
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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