Does s. 24(1) of the Canadian Charter of Rights and Freedoms authorize a court of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice?
The Supreme Court of Canada recently answered yes to this question in Henry v. British Columbia (Attorney General).
This appeal arises out of civil suit brought by Ivan Henry against the Attorney General of British Columbia ("AGBC") for damages under section 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter") for his wrongful convictions and imprisonment relating to the Crown's alleged failure to meet its disclosure obligations.
At issue before the Supreme Court was the level of fault that Mr. Henry had to establish to sustain a cause of action against the AGBC.
In March 1983, Mr. Henry was convicted of 10 sexual offences, declared a dangerous offender, and sentenced to an indefinite period of imprisonment. In October 2010, the British Columbia Court of Appeal overturned the convictions and substituted acquittals for each, concluding that the guilty verdicts were unreasonable based on errors made by the trial judge and the evidence as a whole, which was insufficient in establishing identity.
Prior to his trial, Mr. Henry made numerous requests for relevant information from the Crown prosecutors, who failed to disclose any of the requested material. At the outset of his trial, Mr. Henry requested disclosure again, and the Crown provided him with incomplete disclosure. For several years following his convictions, Mr. Henry continued to request disclosure relating to the case, and sought to have his convictions reviewed.
Following a Vancouver Police investigation in 2002 that reviewed a number of unsolved sexual assaults in the 1980s, the Crown provided full disclosure to Mr. Henry, including information that should have been disclosed at trial.
Following Mr. Henry's acquittals by the British Columbia Court of Appeal, he initiated a civil action in June 2011 seeking damages against the City of Vancouver, the Attorney General of Canada, and the AGBC for suffering harm as a result of his wrongful convictions and imprisonment.
At issue in this Supreme Court appeal was the claim against the AGBC alleging that the Crown failed to meet its disclosure obligations under the Charter before and during Mr. Henry's trial, and in subsequent proceedings. Mr. Henry pleaded several causes of action against the AGBC including negligence, malicious prosecution, misfeasance in public office, abuse of process, and a violation of his section 7 and 11(d) Charter rights. The AGBC opposed Mr. Henry's Charter and negligence claims.
The British Columbia Supreme Court (the "BCSC") struck Mr. Henry's negligence claim but allowed his Charter claim to proceed on the basis of malicious Crown conduct. However, the Court held that Mr. Henry would need to seek leave to amend his pleadings if he intended to pursue a Charter damages claim against the AGBC for conduct that did not amount to malice In a further proceeding at the BCSC, Mr. Henry was permitted to amend his pleadings, on the basis that a threshold lower than malice was applicable, and was met in this case.
The British Columbia Court of Appeal unanimously overturned the lower court's ruling and held that Mr. Henry could not seek damages under the Charter for non-malicious acts and omissions of the Crown, as evidence of malice was required to ground his Charter damages claim. Mr. Henry appealed to the Supreme Court.
Supreme Court Decision
The Supreme Court was split in their reasoning, with Moldaver J. writing the reasons on behalf of the majority (Abella, Wagner and Gascon J.J.), and McLaughlin C.J. writing reasons on behalf of herself and Karakatsanis J. The minority reasons concurred with the majority in the result, with the Court finding that where a claimant seeks Charter damages for allegations that the Crown's wrongful non-disclosure violated his or her Charter rights, proof of malice is not required.
In coming to this conclusion, the majority re-affirmed that Ward v. Vancouver (City), 2010 SCC 27, provided the governing legal framework for damages under the Charter and set out the following four-part test for establishing this cause of action against the Crown for wrongful non-disclosure at the pleadings and trial stages:
- The Crown must have intentionally withheld information;
- The Crown must have known or ought reasonably to have known that the information was material to the defence and that the failure to disclose will likely impinge on the accused's ability to make full answer and defence;
- Withholding the information breached the accused Charter rights;
- The claimant suffered harm as a result. 
In order to fulfill the test, the claimant must prove there was a Charter violation and that the Crown had the necessary intent and knowledge (actual or imputed) in withholding the disclosure. Moreover, the claimant must also establish that he or she suffered a legally cognizable harm as a result of the Crown's wrongful non-disclosure on a "but-for" causation standard, or for multiple alleged wrongdoers, a material contribution standard.
In crafting this test, the majority rejected the malice standard and explained that malice was not a useful framework for allegations of wrongful non-disclosure by the Crown. First, the malice standard originates from the tort of malicious prosecution, which has a distinctive history and purpose. In addition, malice requires that the prosecutor have an "improper purpose", which is significant given that the prosecutor's decision to initiate or continue the prosecution is highly discretionary. However, the malice standard makes little sense where the alleged misconduct involves wrongful non-disclosure, since disclosure is a constitutional obligation of the Crown, and not part of prosecutorial discretion. The majority also held that a purposive approach to s. 24(1) is inconsistent with the malice standard, as restricting the availability of Charter damages for wrongful non-disclosure to cases where the Crown acted maliciously would fail to offer a responsive or effective Charter remedy to claimants.
In determining the appropriate liability threshold for wrongful non-disclosure, and concluding that the threshold should be high, the majority considered policy issues, including good governance concerns raised in malicious prosecution jurisprudence. First, the liability threshold must ensure that Crown prosecutors will not be preoccupied from their public duties in order to respond to a number of civil actions. The majority also closely considered the concern that Crown prosecutors will engage in defensive lawyering due to widespread fear of lawsuits if the threshold for liability was set too low. Accordingly, this high-threshold test attempts to balance the competing interests of claimants, who may have a valid cause of action against the Crown for Charter damages arising from intentional misconduct, while protecting Crown prosecutors from a defending against a flood of frivolous civil claims.
The majority cautioned against using the four-part test in cases not involving wrongful non-disclosure claims, explaining that the test may offer guidance in setting the applicable threshold for other types of misconduct, however, new situations should be addressed in future cases as they arise.
The majority expressly rejected the lower liability threshold advanced by McLaughlin C.J. in the minority reasons stating that the minority approach would cast "too wide a net" against prosecutors since it would permit wrongful non-disclosure actions based on any no-fault allegation against the Crown. The majority also believed that the minority's approach did not sufficiently address the compelling policy and practical concerns that justified a limit on prosecutorial liability.
Mr. Henry's claim as pleaded met the test set out, though the majority cautioned that his case was exceptional, and should not be used to justify an expansion of Crown liability stating:
"It is only by keeping liability within strict bounds that we can ensure a reasonable balance between remedying serious rights violations and maintaining the efficient operation of our public prosecution system."
Both sets of reasons concurred in the result, and the Court overturned the decision of the British Columbia Court of Appeal, ruling that Mr. Henry may seek leave to amend his pleadings to include a Charter damages claim for wrongful non-disclosure, without proof of malice. It remains to be determined whether Mr. Henry can prove his allegations against the Crown, and whether damages under s. 24(1) of the Charter are an appropriate remedy if liability is found.
This case affirms that a Charter damages remedy is available to those who are unjustly convicted or prosecuted by the Crown due to blameworthy conduct of the Crown in meeting its disclosure obligations, and will be very important for claimants who have valid causes of action against the Crown for wrongful non-disclosure that falls short of malicious conduct. Future case law will clarify whether this test will achieve the appropriate balance between protecting Crown prosecutors from unmeritorious lawsuits while permitting claims involving harm for serious cases of wrongful non-disclosure by the Crown.
Henry v. British Columbia (Attorney General), 2015 SCC 24
Date of Decision: May 1, 2015
 Henry v. British Columbia (Attorney
General), 2015 SCC 24 at paras. 1 and 19.
 Ibid. at paras 9, 11, and 15.
 Ibid. at paras 17-18.
 Ibid. at para 20.
 Ibid. at para. 21.
 Ibid. at para. 21.
 Ibid. at paras. 22-24.
 Ibid. at paras. 25 and 29.
 Ibid. at paras. 34-43.
 Ibid. at paras. 31 and 82.
 Ibid. at paras. 95.
 Ibid. at paras. 95-98.
 Ibid. at para. 59.
 Ibid. at para. 57.
 Ibid. at paras. 59-63.
 Ibid. at paras. 64-65.
 Ibid. at para. 71.
 Ibid. at para. 72.
 Ibid. at para. 73.
 Ibid. at para. 72.
 Ibid. at para. 33.
 Ibid. at para. 77.
 Ibid. at para. 81.
 Ibid. at paras. 99 and 138.
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