Henry v. British Columbia (Attorney General)

Henry v. British Columbia (Attorney General)
Collection
Supreme Court Judgments
Date
2015-05-01
Neutral citation
2015 SCC 24
Report
[2015] 2 SCR 214
Case number
35745
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 35745
Decision Content
SUPREME COURT OF CANADA
Citation: Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214
Date: 20150501
Docket: 35745
Between:
Ivan William Mervin Henry
Appellant
and
Her Majesty The Queen in Right of the Province of British Columbia
as Represented by the Attorney General of British Columbia and
Attorney General of Canada
Respondents
- and -
Attorney General of Ontario, Attorney General of Quebec,
Attorney General of Nova Scotia, Attorney General of New Brunswick,
Attorney General of Manitoba, Attorney General for Saskatchewan,
Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Association in Defence of the Wrongly Convicted, David Asper Centre
for Constitutional Rights, British Columbia Civil Liberties Association,
Canadian Civil Liberties Association, Criminal Lawyers’ Association and
Canadian Association of Crown Counsel
Interveners
Coram: McLachlin C.J. and LeBel,* Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment:
(paras. 1 to 100)
Joint Reasons Concurring in the Result:
(paras. 101 to 138)
Moldaver J. (Abella, Wagner and Gascon JJ. concurring)
McLachlin C.J. and Karakatsanis JJ.
* LeBel J. took no part in the judgment.
Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214
Ivan William Mervin Henry Appellant
v.
Her Majesty The Queen in Right of the Province of
British Columbia as represented by the Attorney General
of British Columbia and Attorney General of Canada Respondents
and
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Nova Scotia,
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General for Saskatchewan,
Attorney General of Alberta,
Attorney General of Newfoundland and Labrador,
Association in Defence of the Wrongly Convicted,
David Asper Centre for Constitutional Rights,
British Columbia Civil Liberties Association,
Canadian Civil Liberties Association,
Criminal Lawyers’ Association and
Canadian Association of Crown Counsel Interveners
Indexed as: Henry v. British Columbia (Attorney General)
2015 SCC 24
File No.: 35745.
2014: November 13; 2015: May 1.
Present: McLachlin C.J. and LeBel,* Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Remedies — Damages — Civil action — Prosecutorial misconduct in criminal proceedings — Disclosure obligations of prosecutors — Wrongful non-disclosure — Malice — Claimant wrongfully convicted and incarcerated for almost 27 years — Claimant bringing civil action alleging breach of Charter rights resulting from Crown counsel’s wrongful non-disclosure of relevant information — Damages under s. 24(1) sought against Crown — Whether s. 24(1) authorizes courts to award damages against Crown for wrongful non-disclosure — Level of fault claimant must establish to meet liability threshold for awarding s. 24(1) damages — Whether malice required — Canadian Charter of Rights and Freedoms, s. 24(1) .
H was convicted in 1983 of 10 sexual offences, declared a dangerous offender, and imprisoned for almost 27 years. In October 2010, the B.C. Court of Appeal quashed all 10 convictions and substituted acquittals for each, finding serious errors in the conduct of the trial and concluding that the guilty verdicts were unreasonable in light of the evidence as a whole. H brought a civil suit against the Attorney General of British Columbia (“AGBC”), seeking damages under s. 24(1) of the Charter for harm suffered as a consequence of his wrongful convictions and imprisonment.
H alleges that the Crown failed to make full disclosure of relevant information before, during, and after his trial. H made numerous requests for disclosure of all victim statements as well as medical and forensic reports. The Crown did not disclose any of the requested material before the commencement of trial. At trial, the Crown provided him with several victim statements, but approximately 30 additional statements were not disclosed. These statements revealed inconsistencies that could have been used to attack the already-suspect identification evidence put forward by the Crown. Key forensic evidence was also not disclosed. Furthermore, the Crown failed to disclose the existence of another suspect who had been arrested twice in the vicinity of the attacks.
In his Notice of Civil Claim, H pleaded various causes of action, including negligence, malicious prosecution, and breach of his ss. 7 and 11 (d) Charter rights. The AGBC moved to strike the causes of action grounded in negligence and the Charter . The B.C. Supreme Court struck the negligence claim as inconsistent with this Court’s holding in Nelles v. Ontario, [1989] 2 S.C.R. 170, but allowed H’s Charter claim to proceed since it was founded on allegations of malicious conduct. The court noted, however, that if H intended to pursue a Charter damages claim against the AGBC for conduct falling short of malice, he would have to seek leave to amend his pleadings. H applied for leave to amend his pleadings to claim Charter damages against the AGBC for non-malicious conduct. In permitting H to amend his claim accordingly, the application judge found that a threshold lower than malice should apply and that s. 24(1) damages awards are justified where the Crown’s conduct represents a marked and unacceptable departure from the reasonable standards expected of prosecutors. The Court of Appeal unanimously allowed the AGBC’s appeal, concluding that H was not entitled to seek Charter damages for the non-malicious acts and omissions of Crown counsel.
Held: The appeal should be allowed. Section 24(1) of the Canadian Charter of Rights and Freedoms authorizes courts of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice.
Per Abella, Moldaver, Wagner and Gascon JJ.: Where, as here, a claimant seeks Charter damages based on allegations that the Crown’s failure to disclose violated his or her Charter rights, proof of malice is not required. Instead, a cause of action 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. This represents a high threshold for a successful Charter damages claim, albeit one that is lower than malice. Only by keeping liability within strict bounds can a reasonable balance be struck between remedying serious rights violations and maintaining the efficient operation of our public prosecution system.
In Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, this Court recognized that s. 24(1) of the Charter authorizes damage claims directed against the state for violations of the claimant’s constitutional rights. The Chief Justice outlined a framework to determine the state’s liability for Charter damages. Under this framework, the claimant must demonstrate that the state has breached one of his or her Charter rights and that an award of damages would serve a compensation, vindication, or deterrence function. Once that burden is met, the onus shifts to the state to rebut the claimant’s case based on countervailing considerations.
The countervailing consideration at issue in this case relates to concerns over good governance. Ward recognizes that policy factors may justify restricting the state’s exposure to civil liability by establishing a minimum threshold of gravity. 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. Specifically, the spectre of liability may influence the decision-making of prosecutors and make them more “defensive” in their approach. A low threshold would also open up the floodgates of civil liability and force prosecutors to spend undue amounts of time and energy defending their conduct in court.
The AGBC submits that, to attract liability for Charter damages, the Crown’s conduct must rise to the level of “malice”. The malice standard has been extensively canvassed in this Court’s malicious prosecution jurisprudence. Under the tort of malicious prosecution, a prosecutor will be liable for the decision to initiate or continue a prosecution against an individual without reasonable and probable cause, provided that such decision was characterized by malice. Malice requires more than recklessness or gross negligence. Rather, the plaintiff must demonstrate a willful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system. The malice standard will only be met in exceptional cases where the plaintiff can prove that a prosecutor’s decision was driven by an improper purpose or motive, wholly inconsistent with Crown counsel’s role as minister of justice.
There are several reasons why malice does not provide a useful liability threshold for Charter damages claims alleging wrongful non-disclosure by prosecutors. First, the malice standard is firmly rooted in the tort of malicious prosecution, which has a distinctive history and purpose. Second, malice requires an inquiry into whether the prosecutor was motivated by an improper purpose. Such an 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. However, the decision to disclose relevant information is not discretionary. It is a constitutional obligation which must be properly discharged by the Crown in accordance with an accused’s Charter right to make full answer and defence. As such, the motives of the prosecutor in withholding information are immaterial. Third, unlike the decision to initiate or continue a prosecution, disclosure decisions do not fall within the core of prosecutorial discretion, and therefore do not warrant such an onerous threshold to insulate them from judicial scrutiny. Finally, a purposive approach to s. 24(1) militates against the malice standard.
While the malice standard is not directly applicable, the compelling good governance concerns raised in our malicious prosecution jurisprudence must be taken into account in determining the appropriate liability threshold for cases of wrongful non-disclosure. 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. Moreover, a widespread “chilling effect” on the behaviour of prosecutors must be avoided. Therefore, the threshold must allow for strong claims to be heard on their merits, while guarding against a proliferation of marginal cases.
Good governance concerns mandate a high threshold that substantially limits the scope of liability. The standard adopted by the application judge, which is akin to gross negligence, does not provide sufficient limits. H submits that an even lower threshold — a simple breach of the Charter without any additional element of fault — should apply in this context. This approach fails to address the compelling policy and practical concerns that justify limiting prosecutorial liability. H alleges very serious instances of wrongful non-disclosure that demonstrate a shocking disregard for his Charter rights. His claim as pleaded meets the liability threshold established here. However, H’s exceptional case should not be used to justify a substantial expansion of prosecutorial liability.
Whether considered at the pleadings stage or at trial, the same formulation of the test applies. At trial, a claimant must convince the fact-finder on a balance of probabilities that (1) the prosecutor intentionally withheld information; (2) the prosecutor knew or ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impinge on his or her ability to make full answer and defence; (3) withholding the information violated his or her Charter rights; and (4) he or she suffered harm as a result. To withstand a motion to strike, a claimant would only need to plead facts which, taken as true, would be sufficient to support a finding on each of these elements.
The liability threshold focuses on two key elements: the prosecutor’s intent, and his or her actual or imputed knowledge. The purpose of these elements is not to shield prosecutors from liability by placing an undue burden on claimants to prove subjective mental states. Rather, they are designed to set a sufficiently high threshold to address good governance concerns while preserving a cause of action for serious instances of wrongful non-disclosure.
The consequences of setting a lower threshold in this context — simple negligence, or even the gross negligence standard adopted by the application judge — would be serious. This type of threshold implicates a duty of care paradigm that ignores the basic realities of conducting a criminal prosecution. The problems with a negligence-based standard are even more apparent when considering how this lower threshold would operate at the pleadings stage. It would be far too easy for a claimant with a weak claim to plead facts disclosing a cause of action for negligence and thus drive prosecutors into civil court. Bringing a Charter damages claim for prosecutorial misconduct should not be a mere exercise in artful pleading.
In addition to establishing a Charter breach and the requisite intent and knowledge, a claimant must prove that, as a result of the wrongful non-disclosure, he or she suffered a legally cognizable harm. Liability attaches to the Crown only upon a finding of “but for” causation. Regardless of the nature of the harm suffered, a claimant would have to prove, on a balance of probabilities, that “but for” the wrongful non-disclosure he or she would not have suffered that harm. The “but for” causation test may, however, be modified in situations involving multiple alleged wrongdoers.
H may seek to amend his pleadings to include a claim for Charter damages alleging that the Crown, in breach of its constitutional obligations, caused him harm by intentionally withholding information when it knew, or should reasonably have known, that the information was material to his defence and that the failure to disclose would likely impinge on his ability to make full answer and defence.
Per McLachlin C.J. and Karakatsanis J.: H need not allege that the Crown breached its constitutional obligation intentionally, or with malice, in order to access Charter damages. Applying the principles from Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, to this case, H must plead facts that, if true, establish a breach of his Charter rights and that damages constitute an appropriate and just remedy to advance the purposes of compensation, vindication or deterrence. If proven at trial, the facts alleged by H would indisputably establish a breach of H’s disclosure rights under s. 7 of the Charter , which had a direct and serious impact on the fairness of his trial. In these circumstances, an award of Charter damages under s. 24(1) may provide some compensation for the hardships H has endured and may also help publicly vindicate such a serious violation of the Charter rights the Crown is alleged to have breached. The objective of deterrence may also be served by an award of damages that highlights the need for the state to remain vigilant in meeting its constitutional obligations.
At step three of the Ward analysis, the government has an opportunity to advance any countervailing considerations that would make it inappropriate or unjust to award damages under s. 24(1) . At the current stage of proceedings in this case, it is far from clear that there is an alternative remedy that will fulfill the functional objectives of Charter damages. As to good governance concerns, the second set of countervailing considerations discussed in Ward, those raised by the Attorney General of British Columbia are misplaced in this case. H’s case does not involve the exercise of prosecutorial discretion in the usual sense of the term. The discretion to commence and pursue a prosecution is vital to the effective prosecution of criminal cases and claims can only be brought against prosecutors for misuse of this discretion if malice can be shown. The legal duty on the Crown to disclose relevant evidence, however, is not a discretionary function but a legal obligation. This obligation is absolute. The only discretion left to the prosecutor is a limited operational discretion relating to timing, relevance in borderline cases, privilege and protection of witness identity. An action for failure to disclose relevant evidence to the defence is different from an action for misuse of prosecutorial discretion in bringing or pursuing a prosecution. It is not an action for abuse of discretion, but an action for breach of a legal duty imposed on the state by the Charter . Recognizing H’s claim will not chill the exercise of prosecutorial discretion, nor will it change the high standard of malice for tort actions for misuse of prosecutorial discretion, or divert prosecutors from their day-to-day work.
H should be allowed to amend his pleadings to include a claim for Charter damages based on a breach by the Crown of its constitutional obligation to disclose relevant information. On the facts as pleaded, Charter damages would be an appropriate and just remedy, serving one or more of the functions of compensation, vindication and deterrence.
Cases Cited
By Moldaver J.
Referred to: Nelles v. Ontario, [1989] 2 S.C.R. 170; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Mills, [1999] 3 S.C.R. 668; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] Q.B. 335; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. B. (L.) (1997), 35 O.R. (3d) 35; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.
By McLachlin C.J. and Karakatsanis J.
Applied: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; referred to: R. v. Gamble, [1988] 2 S.C.R. 595; Mills v. The Queen, [1986] 1 S.C.R. 863; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; Nelles v. Ontario, [1989] 2 S.C.R. 170; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 401.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d), 24(1) .
Constitution Act, 1982, s. 52 .
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(6).
Authors Cited
Roach, Kent. “A Promising Late Spring for Charter Damages: Ward v. Vancouver” (2011), 29 N.J.C.L. 135.
APPEAL from a judgment of the British Columbia Court of Appeal (Hall, MacKenzie and Stromberg-Stein JJ.A.), 2014 BCCA 15, 53 B.C.L.R. (5th) 262, 349 B.C.A.C. 175, 596 W.A.C. 175, 370 D.L.R. (4th) 742, 6 C.C.L.T. (4th) 175, 299 C.R.R. (2d) 35, 8 C.R. (7th) 108, [2014] 3 W.W.R. 231, [2014] B.C.J. No. 71 (QL), 2014 CarswellBC 100 (WL Can.), setting aside a decision of Goepel J., 2013 BCSC 665, 47 B.C.L.R. (5th) 335, 359 D.L.R. (4th) 171, 100 C.C.L.T. (3d) 298, 281 C.R.R. (2d) 24, [2013] 8 W.W.R. 518, [2013] B.C.J. No. 769 (QL), 2013 CarswellBC 990 (WL Can.). Appeal allowed.
Joseph J. Arvay, Q.C., Alison Latimer, Marilyn Sandford and Cameron Ward, for the appellant.
Peter Juk, Q.C., Karen A. Horsman and E. W. (Heidi) Hughes, for the respondent Her Majesty The Queen in Right of the Province of British Columbia as represented by the Attorney General of British Columbia.
Mitchell R. Taylor, Q.C., and Diba B. Majzub, for the respondent the Attorney General of Canada.
Hart Schwartz and Matthew Horner, for the intervener the Attorney General of Ontario.
Michel Déom and Amélie Dion, for the intervener the Attorney General of Quebec.
James A. Gumpert, Q.C., for the intervener the Attorney General of Nova Scotia.
Gaétan Migneault and Kathryn Gregory, for the intervener the Attorney General of New Brunswick.
Michael Conner and Denis Guénette, for the intervener the Attorney General of Manitoba.
Graeme Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.
Jolaine Antonio and Kate Bridgett, for the intervener the Attorney General of Alberta.
Frances Knickle and Philip Osborne, for the intervener the Attorney General of Newfoundland and Labrador.
Sean Dewart and Tim Gleason, for the intervener the Association in Defence of the Wrongly Convicted.
Marlys A. Edwardh and Frances Mahon, for the interveners the David Asper Centre for Constitutional Rights and the British Columbia Civil Liberties Association.
Bradley E. Berg, Erin Hoult and Nickolas Tzoulas, for the intervener the Canadian Civil Liberties Association.
Richard Macklin, Breese Davies and Neil G. Wilson, for the intervener the Criminal Lawyers’ Association.
Written submissions only by Paul J. J. Cavalluzzo and Adrienne Telford, for the intervener the Canadian Association of Crown Counsel.
The judgment of Abella, Moldaver, Wagner and Gascon JJ. was delivered by
Moldaver J. —
I. Overview
[1] Ivan Henry was convicted in March 1983 of 10 sexual offences involving 8 different complainants. He was declared a dangerous offender and sentenced to an indefinite period of incarceration. He remained imprisoned for almost 27 years. In October 2010, the British Columbia Court of Appeal quashed all 10 convictions and substituted acquittals for each, finding serious errors in the conduct of the trial and concluding that the guilty verdicts were unreasonable in light of the evidence as a whole: R. v. Henry, 2010 BCCA 462, 294 B.C.A.C. 96 (“Henry No. 1”), at para. 154.
[2] Mr. Henry brought a civil suit against the City of Vancouver (“City”), the Attorney General of British Columbia (“AGBC”), and the Attorney General of Canada (“AGC”), seeking damages for his wrongful convictions and imprisonment. The claims against the City and the AGC are not at issue in this appeal. We are concerned only with the claim against the AGBC for damages under s. 24(1) of the Canadian Charter of Rights and Freedoms . Specifically, Mr. Henry alleges that the provincial Crown should be held liable for its failure — before, during, and after his criminal trial — to meet its disclosure obligations under the Charter . The sole question before us is the level of fault that Mr. Henry must establish to sustain a cause of action against the AGBC in these circumstances.
II. Factual Background
[3] This appeal arises from proposed amendments to the pleadings in Mr. Henry’s civil case. Because this case is at the pleadings stage, the allegations of prosecutorial misconduct made by Mr. Henry — including those recited in this factual background — must be accepted as true.
A. Mr. Henry’s 1983 Convictions
[4] From November 1980 to June 1982, a series of sexual assaults occurred in Vancouver. The perpetrator of each assault used a similar modus operandi: he targeted female victims who were alone at night in certain neighbourhoods, threatening them with a knife and covering their heads with a pillow or pillowcase. In many of the cases, the perpetrator told the victim that he had been “ripped off” and was owed money by someone who supposedly lived at the victim’s residence: Henry No. 1, at para. 11. After investigation, Vancouver Police concluded that a single perpetrator was responsible for the attacks.
[5] Donald McRae lived in Mount Pleasant, one of the Vancouver neighbourhoods in which the assaults took place. In the spring of 1981, Mr. McRae was placed under police surveillance as a suspect, but was not arrested in connection with the attacks. In March 1982, Mr. Henry moved to a house in the same city block as Mr. McRae.
[6] Police came to regard Mr. Henry as a suspect, and he was arrested in May 1982. He was taken to the police station and forced to participate against his will in an identification line-up. When Mr. Henry refused to cooperate, an officer held him in a headlock to keep his head up so it could be seen by the complainants viewing the line-up. Some of the victims identified Mr. Henry as the perpetrator, but others did not, and the police decided to release him after these inconclusive results.
[7] Five days after Mr. Henry’s arrest and release, Mr. McRae was arrested and charged with trespass by night for prowling outside a residence several blocks away from the locations of two of the previous assaults. Two months later, Mr. McRae was again arrested and charged with breaking and entering and theft at a residence six blocks away from one of the previous sexual assaults.
[8] Mr. Henry was re-arrested in July 1982, after the victim of a June attack made an identification from an array of photographs shown to her by the police. The photograph of Mr. Henry pictured him standing in front of a jail cell, with the arm of a uniformed officer visible in front of him. None of the six “foils” were photographed in this manner, and all six differed significantly from Mr. Henry in terms of age, hair style, and facial hair.
[9] Mr. Henry was charged with 17 offences, although only 10 of these ultimately proceeded to trial. He initially had legal representation, and made numerous requests for disclosure of all victim statements as well as medical and forensic reports. Despite these requests, the Crown did not disclose any of the requested material before the commencement of trial.
[10] Mr. Henry represented himself at trial. There was no reliable out-of-court identification suggesting he was the perpetrator, no evidence linking him to any of the victims, and no physical evidence placing him at any of the crime scenes. The Crown’s entire case rested on in-court identifications of Mr. Henry by the complainants.
[11] At the outset of his trial, Mr. Henry again requested disclosure of all victim statements. The Crown provided him with 11 statements made by the 8 trial complainants. However, approximately 30 additional statements made by the complainants were not disclosed, including those contained in the notes of the original crime scene investigators. These statements revealed inconsistencies that could have been used to attack the already-suspect identification evidence put forward by the Crown.
[12] Furthermore, key forensic evidence was not disclosed. Investigators had recovered sperm from several of the crime scenes that could have been used to include or exclude a suspect based on blood type, yet this evidence was never brought to Mr. Henry’s attention. The Crown also failed to disclose that Mr. McRae had been considered a suspect, and had been arrested twice in the vicinity of the attacks.
[13] At the conclusion of his trial, a jury convicted Mr. Henry on all 10 charges. He was declared a dangerous offender and sentenced to an indefinite period of incarceration.
B. Mr. Henry’s Initial Appeal Efforts
[14] Mr. Henry’s initial appeal to the British Columbia Court of Appeal was dismissed for want of prosecution because of his failure to file trial transcripts and appeal books. His application for leave to appeal to this Court was denied, [1984] 1 S.C.R. viii, as were several subsequent habeas corpus applications and a 1997 application to appoint counsel and reopen his appeal.
[15] In total, between 1984 and 2006, Mr. Henry filed more than 50 applications in different courts and with the federal Crown seeking to have his convictions reviewed, while continuing to seek disclosure relating to his case.
C. Project Smallman and the Unsolved Sexual Assaults
[16] Between November 1982 and July 1988, more than 25 sexual assaults occurred in close geographic proximity to the assaults for which Mr. Henry was convicted. These additional assaults bore similar hallmarks to those attributed to Mr. Henry. However, he could not have been the perpetrator, as he was in custody during this period. These ongoing assaults were not disclosed to him.
[17] In 2002, as part of an effort designated “Project Smallman”, Vancouver Police reopened investigations into a number of unsolved sexual assaults committed between 1983 and 1988 that they believed were carried out by a single perpetrator. DNA evidence linked Mr. McRae to three of the assaults, and he pleaded guilty to these offences in May 2005.
[18] The similarity in both geography and modus operandi between these subsequent assaults and the assaults for which Mr. Henry was convicted led the provincial Crown to appoint an independent investigator to review Mr. Henry’s convictions. On the recommendation of this investigator, the provincial Crown provided full disclosure to Mr. Henry, including information gathered during the initial police investigation that should have been disclosed at trial and information subsequently discovered during Project Smallman. Mr. Henry successfully applied to reopen his appeal and was released on bail pending a hearing on the merits. The application was unopposed by the Crown, based on the recommendation of the independent investigator.
D. Mr. Henry’s Appeal and Acquittals
[19] In Henry No. 1, the British Columbia Court of Appeal considered Mr. Henry’s appeal on the merits for the first time. In October 2010, Low J.A., for a unanimous court, found significant errors in the trial judge’s jury instructions. He also found that the charges should have been severed, and a mistrial declared, after the Crown abandoned its submission that the evidence on each count should be treated as similar fact evidence. These errors would have been sufficient for Low J.A. to order a new trial. However, he also held that the evidence as a whole was incapable of proving identification, and the verdicts were therefore unreasonable. As a result, he substituted acquittals for each of Mr. Henry’s 10 convictions.
E. Mr. Henry’s Civil Claims
[20] Mr. Henry filed a civil action in June 2011, seeking damages against the City, the AGBC, and the AGC for harm suffered as a consequence of his wrongful convictions and incarceration. His claim against the City relates to the investigation of the crimes for which he was convicted, and the failure of the Vancouver Police to inform Crown counsel of the subsequent offences that were later re-investigated as part of Project Smallman. His claim against the AGC relates to the denial of his various applications for review of his convictions. As indicated, these claims are not at issue in this appeal.
[21] Mr. Henry’s claim against the AGBC alleges that the Crown failed to make full disclosure of relevant information before and during his trial, and in subsequent proceedings. In his Notice of Civil Claim, he pleaded various causes of action: negligence, malicious prosecution, misfeasance in public office, abuse of process, and breach of his ss. 7 and 11 (d) Charter rights. The AGBC moved to strike Mr. Henry’s causes of action grounded in negligence and the Charter . In September 2012, Goepel J. of the British Columbia Supreme Court struck the negligence claim as inconsistent with this Court’s holding in Nelles v. Ontario, [1989] 2 S.C.R. 170: Henry v. British Columbia (Attorney General), 2012 BCSC 1401 (“Henry No. 2”), at paras. 43-60. Goepel J. allowed Mr. Henry’s Charter claim to proceed since it was founded on allegations of malicious conduct. However, he noted that, if Mr. Henry intended to pursue a Charter damages claim against the AGBC for conduct falling short of malice, he would have to seek leave to amend his pleadings (paras. 61-72).
III. Judgments Below
A. British Columbia Supreme Court, 2013 BCSC 665, 47 B.C.L.R. (5th) 335 (Goepel J.)
[22] Following the decision in Henry No. 2, Mr. Henry applied to amend his pleadings to claim Charter damages against the AGBC for non-malicious conduct. The AGBC opposed this application, arguing that a claim for Charter damages grounded in alleged prosecutorial misconduct requires proof of malice. The application judge rejected this submission.
[23] Goepel J. held that the case law on malicious prosecution is not dispositive of the required threshold. Relying on this Court’s seminal decision on Charter damages in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, he observed that s. 24(1) affords courts a broad discretion to craft appropriate remedies, and that this discretion should not be limited “by casting it in a strait-jacket of judicially prescribed conditions” (para. 28, quoting Ward, at para. 18). However, he recognized that it may be necessary, as a matter of policy, for courts to mandate a minimum threshold of liability for a successful Charter damages claim.
[24] In Mr. Henry’s case, Goepel J. found that there were competing policy considerations that must be weighed in arriving at the appropriate threshold. He determined that a threshold lower than malice should apply — namely, the standard for awarding costs in criminal proceedings for Charter breaches. Referring to this Court’s decision in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 (“Dunedin”), he noted that costs awards made under s. 24(1) in criminal proceedings are only justified in limited circumstances where the Crown’s conduct represents a marked and unacceptable departure from the reasonable standards expected of prosecutors. Goepel J. thus permitted Mr. Henry to amend his Notice of Civil Claim in accordance with this threshold.
B. British Columbia Court of Appeal, 2014 BCCA 15, 53 B.C.L.R. (5th) 262 (Hall J.A., MacKenzie and Stromberg-Stein JJ.A., Concurring)
[25] The Court of Appeal unanimously allowed the AGBC’s appeal, concluding that Mr. Henry was not entitled to seek Charter damages for the non-malicious acts and omissions of Crown counsel.
[26] Speaking for the court, Hall J.A. relied heavily on this Court’s “trilogy” of malicious prosecution cases — Nelles, Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, and Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339. He noted that, in Nelles, this Court rejected an absolute immunity for Crown counsel, and preserved a right to pursue civil damages against a prosecutor who acts intentionally to subvert justice. Referring to Proulx, he observed that “malicious prosecution can be an efficacious remedy to one harmed by prosecutorial misconduct” (para. 23).
[27] In the same vein, Hall J.A. determined that making Charter damages available to compensate for malicious acts and omissions of prosecutors would offer plaintiffs an effective recourse for Charter violations, but he was not prepared to go further. In his view, the application judge erred in adopting the lower standard of fault developed in criminal cases where costs were awarded. That standard — a marked and unacceptable departure from the reasonable standards expected of Crown counsel — was akin to gross negligence and would result in “a new head of liability against prosecutors” (para. 20).
[28] Hall J.A. rejected the view that Ward altered the parameters of civil liability for prosecutors. He underscored the fact that, in Ward, this Court recognized that good governance considerations can militate against Charter damages awards, and that existing causes of action in private law may provide the appropriate liability threshold in a particular context.
[29] Hall J.A. concluded that he was bound by this Court’s jurisprudence on the scope of civil liability for prosecutors, and therefore the malice threshold was applicable. In his view, “it would be an unwarranted extension of the language in Ward to find that the Supreme Court of Canada was altering the principles set forth in Nelles and Miazga” (para. 29). To the extent that prosecutorial liability ought to be expanded to include claims of negligence, it should be done by the legislature or a court of last resort. Accordingly, Hall J.A. allowed the appeal and dismissed Mr. Henry’s application to amend his pleadings.
IV. Analysis
A. Overview of the Charter Damages Threshold for Wrongful Non-disclosure by Prosecutors
[30] A constitutional question is posed in this case:
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?
[31] In the context of Mr. Henry’s claims, I would answer this question in the affirmative. Where a claimant seeks Charter damages based on allegations that the Crown’s failure to disclose violated his or her Charter rights, proof of malice is not required. Instead, a cause of action 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. This represents a high threshold for a successful Charter damages claim, albeit one that is lower than malice.
[32] I will discuss the legal basis and precise scope of this threshold in greater detail below. Briefly, it recognizes that while malice does not provide a useful or workable framework for dealing with allegations of wrongful non-disclosure by prosecutors, the policy underpinnings of this Court’s malicious prosecution jurisprudence inform the proper scope of Crown liability for Charter damages in this context.
[33] I emphasize “this context” because, in my view, it is neither prudent nor necessary to decide whether a similar threshold would apply in circumstances not involving wrongful non-disclosure. Mr. Henry’s claim against the AGBC is rooted in allegations that Crown counsel failed to disclose certain relevant information. It would be unwise to speculate about other types of prosecutorial misconduct that might violate the Charter , or to fix a blanket threshold that governs all such claims against the Crown. The threshold established in this case may well offer guidance in setting the applicable threshold for other types of misconduct, but the prudent course of action is to address new situations in future cases as they arise, with the benefit of a factual record and submissions.
B. Ward Provides the Governing Legal Framework
[34] Under s. 24(1)