On May 1, 2015, the Supreme Court of Canada released a landmark ruling in Henry v. British Columbia, 2015 SCC 24 that damages in a civil claim may be awarded against the Crown for prosecutorial misconduct, absent proof of malice, under s. 24(1) of the Charter of Rights. In the 4-2 majority ruling of two concurring opinions, Justice Michael J. Moldaver held, at para. 65, that restricting Charter damages for prosecutorial breaches of disclosure obligations to a standard of malice is neither a responsive nor effective remedy to claimants.

The saga of Ivan Henry began in 1983 when he was convicted of ten sexual offences, declared a dangerous offender and imprisoned for almost 27 years. All ten convictions were overturned by the British Columbia Court of Appeal in 2010 which substituted acquittals on all counts. He then commenced a civil suit against the Attorney General of British Columbia seeking damages under s. 24(1) of the Charter for harm sustained as a result of the wrongful convictions and imprisonment. The litigation provoked a procedural haggle over the standard to be met.

The original claim sought damages in negligence and breach of disclosure obligations by Crown counsel under the Charter. The trial judge dismissed the claim for negligence ruling that the higher standard of malicious conduct had to be met. (See: Henry v. British Columbia, 2012 BCSC 1401) A chambers application was then brought to amend the pleadings to allege that Henry was entitled to recovery under s. 24(1) of the Charter without alleging malice. The motion was granted and the claim amended to allege that breaches of the state’s disclosure obligations, “…were a marked and unacceptable departure from the reasonable standards expected of the Crown counsel.” (See: Henry v. British Columbia, 2013 BCSC 665) The Attorney General appealed.

The British Columbia Court of Appeal allowed the appeal and dismissed the application to amend. Justice John E. Hall, writing for a unanimous court, held that the amendment ordered by the chambers judge would provide for prosecutorial liability based on a species of gross negligence not in accordance with existing jurisprudence. (See: Henry v. British Columbia, 2014 BCCA 15)

The egregious prosecutorial conduct at issue was described by Justice Moldaver, at para. 81, as “very serious instances of wrongful non-disclosure” that demonstrated a “shocking disregard” for the appellant’s Charter rights. The conduct included a succession of failures to make full disclosure of relevant information before, during and after trial including: complainants’ statements; medical reports; and, key forensic reports. Approximately thirty witness statements were not disclosed that revealed inconsistencies which could have been used to attack suspect identification evidence. The identification evidence was partly based on a bogus police line-up in which the defendant was the only one with red or curly hair and the only one being restrained by three uniformed police officers.

In allowing the appeal, Justice Moldaver concluded, at paras. 56-64, that malice does not provide a useful liability threshold for Charter damages for the following reasons:

“First, the malice standard is firmly rooted in the tort of malicious prosecution, which has a distinctive history and purpose. The tort is a judicial creation of the 18th century, when prosecutions were carried out by private litigants: Miagza, at para.42. This historical peculiarity should give us pause when we are called upon to transplant elements of this tort into new contexts far beyond those envisioned at the time of its creation.

Second, the purpose of the malicious prosecution tort must be kept in mind in determining whether to expand the reach of the malice standard. Recall that the wrongdoing targeted by this tort is the decision to initiate or continue an improperly motivated prosecution. In contrast, the alleged wrongdoing at issue in this case is markedly different – the Crown’s failure to discharge its constitutional obligations to disclose relevant information to Mr. Henry.

The malice standard translates awkwardly into cases where the alleged misconduct is wrongful non-disclosure. Malice requires a showing of improper purpose on the part of the prosecutor. This ‘improper purpose’ inquiry is apt when the impugned conduct is a highly discretionary decision such as the decision to initiate or continue a prosecution, because discretionary decision-making can best be evaluated by reference to the decision-maker’s motives. Unlike the decision to initiate or continue a prosecution, the decision to disclose relevant information is not discretionary. Rather, disclosure is a constitutional obligation which must be properly discharged by the Crown in accordance with an accused’s right to make full answer and defence, as guaranteed under ss. 7 and 11(d) of the Charter: see R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336; R. v. Mills, [1999] 3 S.C.R. 668, at para. 5.

Third, the decision to initiate or continue a prosecution falls within the core of prosecutorial discretion, whereas disclosure decisions do not. Whether in private or public law, the threshold to intrude upon that core discretion must be onerous, since it squarely implicates the independence of prosecutors…Both malice and abuse of process therefore represent very high thresholds deliberately chosen to insulate core prosecutorial functions from judicial scrutiny. In contrast, disclosure decisions are not part of core prosecutorial discretion.

In Anderson, this Court held that ‘the Crown possesses no discretion to breach the Charter rights of an accused’, and that ‘prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations, such as the duty to provide proper disclosure to the defence’ (para. 45). This suggests that disclosure decisions will not necessarily warrant the same level of protection from judicial scrutiny as the decision to initiate or continue a prosecution. Indeed, in the course of criminal trials, disclosure is routinely subject to judicial review. This review is not predicated on a showing of abuse of process. Likewise, in an action for Charter damages, a threshold lower than malice is justified when a court is asked to determine whether the Crown is liable for wrongful non-disclosure.

Finally, a purposive approach to s. 24(1) militates against the malice standard. As this Court held in Dunedin, ‘s. 24(1), like all Charter provisions, commands a broad and purposive interpretation’ and ‘must be construed generously, in a manner that best ensures the attainment of it objects’ (para. 18). Section 24(1) guarantees that rights are upheld by granting ‘effective remedies’ to claimants, and is crucial to the overall structure of the Charter because ‘a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach’ (ibid., at paras. 1920).”

Justice Moldaver then turned to a consideration of the liability threshold for wrongful non-disclosure.  The majority and the minority concurring opinion diverged on this point. However, I will restrict my comments to the majority. According to Justice Moldaver, at para. 71, the threshold engaged two policy considerations: (1) the liability threshold must ensure that Crown counsel will not be diverted from their important public duties by having to defend against a litany of civil claims; and, (2) the liability threshold mist avoid a widespread “chilling effect” on the behaviour of prosecutors.

After rejecting the “gross negligence” standard adopted by the chambers judge and the threshold of “simple breach without fault” asserted by the appellant (adopted in the minority opinion of Chief Justice Beverley McLachlin and Justice Andromache Karakatsanis), Justice Moldaver set out the following liability threshold tailored to the wrongful non-disclosure context, at para. 82:

“…[A] cause of action for Charter damages will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence…”.

Justice Moldaver then repeated the threshold test with the element of causation included, at para. 84:

“The liability threshold is tailored to the wrongful non-disclosure context. There is no inquiry into the Crown’s motive or purpose, which are concepts better-suited to cases where the exercise of core prosecutorial discretion is challenged. Rather, the focus is on two key elements: the prosecutor’s intent, and his or her actual or imputed knowledge. Specifically, a cause of action will lie against the state – subject to proof of causation – where a prosecutor breaches an accused’s Charter rights by intentionally withholding information when he or she knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.”

What, then, are the takeaways here? First, as a general observation, throughout the history of Charter litigation, the Canadian judiciary has been consistently strong on disclosure issues generally favouring the inclusive approach on questions of relevance and limiting Crown claims of privilege apart from the class privilege category. Second, the decision in Henry is another example of an important development in the law based on the underpinning rationale that rights without remedies are meaningless. Third, by holding that proof of malice is not required in an action for Charter damages, the Supreme Court has put Canadian law on a footing distinct from other common law jurisdictions where, as noted by Justice Hall in the British Columbia Court of Appeal, “…the immunity of prosecutors from civil action arising out of the performance of prosecutors of prosecutorial duties is well nigh absolute.” (See: Henry, supra, at para. 5; Imbler v. Pachtman, 424 U.S. 409 (1976); and, Fields v. Wharrie, 672 F. (3d) 505 (2012).)