Ivan William Mervin Henry Appellant v. Her Majesty The Queen in Right of the Province of British Columbia, 2015 SCC 24

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 madenumerous requests for disclosure of all victim statements as well as medical and forensic reports. The Crown did not disclose any of therequested material before the commencement of trial. At trial, the Crown provided him with several victim statements, but approximately30 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 failedto 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 ofhis 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, (SCC), [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 toseek 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 maliceshould apply and that s. 24(1) damages awards are justified where the Crown’s conduct represents a marked and unacceptable departurefrom the reasonable standards expected of prosecutors. The Court of Appeal unanimously allowed the AGBC’s appeal, concluding thatH 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 ofcompetent 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 thatthe Crown’s failure to disclose violated his or her Charter rights, proof of malice is not required.

Instead, a cause of action will lie wherethe Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when itknows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose willlikely impinge on the accused’s ability to make full answer and defence. This represents a high threshold for a successful Charterdamages claim, albeit one that is lower than malice.

Only by keeping liability within strict bounds can a reasonable balance be struckbetween 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 authorizesdamage claims directed against the state for violations of the claimant’s constitutional rights. The Chief Justice outlined a framework todetermine the state’s liability for Charter damages.

Under this framework, the claimant must demonstrate that the state has breached oneof his or her Charter rights and that an award of damages would serve a compensation, vindication, or deterrence function. Once thatburden 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 policyfactors may justify restricting the state’s exposure to civil liability by establishing a minimum threshold of gravity.

If the threshold ofgravity is set too low for a Charter damages claim alleging Crown misconduct, the ability of prosecutors to discharge their importantpublic duties will be undermined, with adverse consequences for the administration of justice. Specifically, the spectre of liability mayinfluence the decision-making of prosecutors and make them more “defensive” in their approach. A low threshold would also open upthe 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 maliciousprosecution, a prosecutor will be liable for the decision to initiate or continue a prosecution against an individual without reasonable andprobable 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 thecriminal justice system. The malice standard will only be met in exceptional cases where the plaintiff can prove that a prosecutor’sdecision 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 allegingwrongful non-disclosure by prosecutors.

First, the malice standard is firmly rooted in the tort of malicious prosecution, which has adistinctive 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 aprosecution, because discretionary decision-making can best be evaluated by reference to the decision-maker’s motives. However, thedecision to disclose relevant information is not discretionary.

It is a constitutional obligation which must be properly discharged by theCrown in accordance with an accused’s Charter right to make full answer and defence. As such, the motives of the prosecutor inwithholding information are immaterial. Third, unlike the decision to initiate or continue a prosecution, disclosure decisions do not fallwithin the core of prosecutorial discretion, and therefore do not warrant such an onerous threshold to insulate them from judicialscrutiny. 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 maliciousprosecution 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 todefend 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 marginalcases. Good governance concerns mandate a high threshold that substantially limits the scope of liability. The standard adopted bythe application judge, which is akin to gross negligence, does not provide sufficient limits. H submits that an even lower threshold — asimple breach of the Charter without any additional element of fault — should apply in this context.

This approach fails to address thecompelling 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 mustconvince the fact-finder on a balance of probabilities that (1) the prosecutor intentionally withheld information; (2) the prosecutor knewor ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impingeon his or her ability to make full answer and defence; (3) withholding the information violated his or her Charter rights; and (4) he or shesuffered harm as a result.

To withstand a motion to strike, a claimant would only need to plead facts which, taken as true, would besufficient 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. Thepurpose of these elements is not to shield prosecutors from liability by placing an undue burden on claimants to prove subjective mentalstates. Rather, they are designed to set a sufficiently high threshold to address good governance concerns while preserving a cause ofaction for serious instances of wrongful non-disclosure.

The consequences of setting a lower threshold in this context — simple negligence, or even the gross negligence standardadopted by the application judge — would be serious. This type of threshold implicates a duty of care paradigm that ignores the basicrealities of conducting a criminal prosecution. The problems with a negligence-based standard are even more apparent when consideringhow this lower threshold would operate at the pleadings stage. It would be far too easy for a claimant with a weak claim to plead factsdisclosing a cause of action for negligence and thus drive prosecutors into civil court.

Bringing a Charter damages claim forprosecutorial 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 ofthe wrongful non-disclosure, he or she suffered a legally cognizable harm. Liability attaches to the Crown only upon a finding of “butfor” 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 insituations 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 itsconstitutional 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 answerand defence.

Per McLachlin C.J. and Karakatsanis J.: H need not allege that the Crown breached its constitutional obligationintentionally, 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 anappropriate and just remedy to advance the purposes of compensation, vindication or deterrence.

If proven at trial, the facts alleged by Hwould indisputably establish a breach of H’s disclosure rights under s. 7 of the Charter, which had a direct and serious impact on thefairness of his trial. In these circumstances, an award of Charter damages under s. 24(1) may provide some compensation for thehardships H has endured and may also help publicly vindicate such a serious violation of the Charter rights the Crown is alleged to havebreached. The objective of deterrence may also be served by an award of damages that highlights the need for the state to remain vigilantin meeting its constitutional obligations.

At step three of the Ward analysis, the government has an opportunity to advance any countervailing considerations thatwould make it inappropriate or unjust to award damages under s. 24(1). At the current stage of proceedings in this case, it is far fromclear 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 aremisplaced in this case.

H’s case does not involve the exercise of prosecutorial discretion in the usual sense of the term. The discretion tocommence and pursue a prosecution is vital to the effective prosecution of criminal cases and claims can only be brought againstprosecutors for misuse of this discretion if malice can be shown. The legal duty on the Crown to disclose relevant evidence, however, isnot a discretionary function but a legal obligation. This obligation is absolute.

The only discretion left to the prosecutor is a limitedoperational discretion relating to timing, relevance in borderline cases, privilege and protection of witness identity. An action for failureto disclose relevant evidence to the defence is different from an action for misuse of prosecutorial discretion in bringing or pursuing aprosecution.

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 actionsfor 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 itsconstitutional obligation to disclose relevant information.

On the facts as pleaded, Charter damages would be an appropriate and justremedy, serving one or more of the functions of compensation, vindication and deterrence. Cases Cited By Moldaver J. Referred to: Nelles v. Ontario, (SCC), [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), 2002SCC 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, (SCC), [1991] 3 S.C.R. 326; R. v. Mills, (SCC), [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), (ON

CA), 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, (SCC),[1988] 2 S.C.R. 595; Mills v. The Queen, (SCC), [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, (SCC), [1989] 2 S.C.R. 170; Miazga v. Kvello Estate, 2009 SCC51, [2009] 3 S.C.R. 339; R. v. Stinchcombe, (SCC), [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.), 2014BCCA 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, 8C.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 GoepelJ., 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 theProvince 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 theBritish 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 ofCrown 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 wasdeclared a dangerous offender and sentenced to an indefinite period of incarceration. He remained imprisoned for almost 27 years. InOctober 2010, the British Columbia Court of Appeal quashed all 10 convictions and substituted acquittals for each, finding serious errorsin the conduct of the trial and concluding that the guilty verdicts were unreasonable in light of the evidence as a whole: R. v.

Henry, 2010BCCA 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 numberof unsolved sexual assaults committed between 1983 and 1988 that they believed were carried out by a single perpetrator. DNA evidencelinked 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 whichMr.

Henry was convicted led the provincial Crown to appoint an independent investigator to review Mr. Henry’s convictions. On therecommendation of this investigator, the provincial Crown provided full disclosure to Mr. Henry, including information gathered duringthe 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 wasunopposed 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 thecharges should have been severed, and a mistrial declared, after the Crown abandoned its submission that the evidence on each countshould be treated as similar fact evidence. These errors would have been sufficient for Low J.A. to order a new trial.

However, he alsoheld that the evidence as a whole was incapable of proving identification, and the verdicts were therefore unreasonable. As a result, hesubstituted 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 harmsuffered as a consequence of his wrongful convictions and incarceration.

His claim against the City relates to the investigation of thecrimes for which he was convicted, and the failure of the Vancouver Police to inform Crown counsel of the subsequent offences thatwere later re-investigated as part of Project Smallman. His claim against the AGC relates to the denial of his various applications forreview 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 informationbefore 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 movedto strike Mr. Henry’s causes of action grounded in negligence and the Charter. In September 2012, Goepel J. of the British ColumbiaSupreme Court struck the negligence claim as inconsistent with this Court’s holding in Nelles v. Ontario, (SCC), [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.

Henryintended to pursue a Charter damages claim against the AGBC for conduct falling short of malice, he would have to seek leave to amendhis 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 againstthe AGBC for non-malicious conduct. The AGBC opposed this application, arguing that a claim for Charter damages grounded inalleged 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 thisCourt’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 amatter 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 inarriving at the appropriate threshold. He determined that a threshold lower than malice should apply — namely, the standard forawarding costs in criminal proceedings for Charter breaches.

Referring to this Court’s decision in R. v. 974649 Ontario Inc., 2001 SCC81, [2001] 3 S.C.R. 575 (“Dunedin”), he noted that costs awards made under s. 24(1) in criminal proceedings are only justified in limitedcircumstances where the Crown’s conduct represents a marked and unacceptable departure from the reasonable standards expected ofprosecutors. 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 seekCharter 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 damagesagainst a prosecutor who acts intentionally to subvert justice. Referring to Proulx, he observed that “malicious prosecution can be anefficacious 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) of the Charter , [a]nyone whose rights or freedoms . . . have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. In Ward , this Court recognized that the language of s. 24(1) is broad enough to encompass damage claims for Charter breaches.

Such claims are brought by an individual as a public law action directed against the state for violations of the claimant’s constitutional rights. [ 35 ] Charter damages are a powerful tool that can provide a meaningful response to rights violations. They also represent an evolving area of the law that must be allowed to “develop incrementally”: Ward , at para. 21 .

When defining the circumstances in which a Charter damages award would be appropriate and just, courts must therefore be careful not to stifle the emergence and development of this important remedy. [ 36 ] However, Charter damages are not a silver bullet. They are just one of many remedies that may be available to individuals whose Charter rights have been breached, and their availability is not without limit. In Ward , the Chief Justice outlined a four-step framework to determine the state’s liability for Charter damages: The first step in the inquiry is to establish that a Charter right has been breached.

The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. [para. 4] [ 37 ] Under this framework, the claimant bears the initial burden of making out a prima facie case.

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 Chief Justice identified two important countervailing considerations, while maintaining that a “complete catalogue” of such considerations would be elaborated over time: Ward , at para. 33 .

[ 38 ] The first countervailing consideration is the existence of alternative remedies. Section 24(1) is a broad remedial provision that provides a range of responses to Charter violations beyond a monetary award. In addition, there may be substantial overlap between private law and s. 24(1) actions against the government. Where the state can show that another remedy is available to effectively address a Charter breach — whether under the Charter or in private law — a damages claim may be defeated at the third step of Ward .

For instance, if a declaration of a Charter breach would adequately achieve the objectives that would otherwise be served by a damages award, then granting damages as well as a declaration would be superfluous, and therefore inappropriate and unjust in the circumstances: Ward , at para. 37 . [ 39 ] The second countervailing consideration — and the one at issue in this case — relates to concerns over good governance.

Ward does not define the phrase “[g]ood governance concerns” (para. 38), but it serves as a compendious term for the policy factors that will justify restricting the state’s exposure to civil liability. As the Chief Justice observed: In some situations, . . . the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity . [Emphasis added; para. 39.] This is precisely what the AGBC, the AGC, and the numerous intervening Attorneys General argue in this case.

There is a common theme driving 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. [ 40 ] This theme finds expression in a number of specific policy concerns. For example, the Attorneys General argue that the spectre of liability may influence the decision-making of prosecutors and make them more “defensive” in their approach.

The public interest is not well served when Crown counsel are motivated by fear of civil liability, rather than their sworn duty to fairly and effectively prosecute crime.

By the same token, the Attorneys General suggest that a low threshold would open up the floodgates of civil liability and force prosecutors to spend undue amounts of time and energy defending their conduct in court instead of performing their duties. [ 41 ] As I will explain, these concerns are very real, and they provide compelling reasons why the availability of Charter damages should be circumscribed through the establishment of a high threshold. [ 42 ] Ward provides an example of a prior case where a heightened per se liability threshold was justified by policy reasons. In Mackin v .

New Brunswick (Minister of Finance) , 2002 SCC 13 , [2002] 1 S.C.R. 405, this Court held that Charter damages were unavailable for state action taken pursuant to a law, considered valid at the time but later declared invalid, unless the state action was “clearly wrong, in bad faith or an abuse of power” (para. 78). In other words, state actors were afforded a limited immunity for actions taken in good faith under a law they believed to be valid.

Citing Mackin , the Chief Justice in Ward noted that, “absent threshold misconduct”, no cause of action for Charter damages will lie in these circumstances (para. 39). [ 43 ] When a heightened per se liability threshold has been imposed, this will have consequences at the pleadings stage. To survive a motion to strike, a claimant must plead sufficient facts to disclose a reasonable cause of action: see R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 , [2011] 3 S.C.R. 45.

If the alleged Charter violation occurs in a context where courts have imposed a heightened per se liability threshold, the claimant must particularize facts that, if proven, would be sufficient to establish that the state conduct met the required threshold of gravity. The failure to do so will be fatal to the claim. With these principles in mind, I turn to the applicable threshold for wrongful non-disclosure by prosecutors. C.

Establishing the Charter Damages Threshold for Wrongful Non-disclosure by Prosecutors (1) “Malice” Does Not Offer a Useful Liability Threshold for Wrongful Non-disclosure by Prosecutors [ 44 ] The AGBC, the AGC, and the intervening Attorneys General unanimously submit that the Crown’s conduct must rise to the level of “malice” — as defined in the tort of malicious prosecution — to attract liability for Charter damages. I do not agree. As I will explain, the malice standard is ill suited to the task of adjudicating allegations of wrongful non-disclosure. (

a) The Malice Standard Articulated in the Malicious Prosecution Jurisprudence [ 45 ] The malice standard has been extensively canvassed in this Court’s malicious prosecution trilogy — Nelles , Proulx , and Miazga . In Nelles , the Court ruled that Crown prosecutors do not enjoy absolute immunity from civil claims. Lamer J. (as he then was) held that policy considerations favour only a qualified immunity, and that Crown prosecutors are not shielded from claims of malicious prosecution.

He outlined the four necessary elements of the malicious prosecution tort as follows: (1) legal proceedings “must have been initiated by the defendant”; (2) those proceedings “must have terminated in favour of the plaintiff”; (3) the defendant did not have “reasonable and probable cause” to initiate the proceedings; and (4) the defendant’s conduct was characterized by “malice, or a primary purpose other than that of carrying the law into effect” (pp. 192-93). [ 46 ] This final element was described by Lamer J. in the following terms: The required element of malice is for all intents, the equivalent of “improper purpose”.

It has . . . a “wider meaning than spite, ill-will, or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage” . . . . To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of “minister of justice”.

In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. [Emphasis in original; citation omitted.]

( Nelles , at pp. 193-94) [ 47 ] In Proulx , the Court applied this standard in the Quebec civil law context. Iacobucci and Binnie JJ. affirmed that malice requires “more than recklessness or gross negligence” (para. 35). 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” ( ibid. ). Proulx was a case where the plaintiff was successful in proving malice on “highly exceptional” facts (para. 44).

Iacobucci and Binnie JJ. found that the Crown made “an active effort to obtain a conviction at any price” by misleading the court, and thus stepped out of its proper role as minister of justice (paras. 41 and 45). Furthermore, the prosecutor’s actions were motivated by an improper purpose since he allowed his office to be used to the ends of a private individual.

Given these circumstances, his conduct amounted to “an abuse of prosecutorial power” that crossed the boundary set out in Nelles (paras. 44-45 ). [ 48 ] Miazga is this Court’s most recent decision involving the tort of malicious prosecution, in which Charron J. reiterated that “malice in the form of improper purpose is the key to proving malicious prosecution” (para. 8).

This high standard was, in her view, justified by the need to give prosecutors a sphere of independence from judicial scrutiny: It is readily apparent from its constituent elements that the tort of malicious prosecution targets the decision to initiate or continue with a criminal prosecution.

When taken by a Crown prosecutor, this decision is one of the “core elements” of prosecutorial discretion, thus lying “beyond the legitimate reach of the court” under the constitutionally entrenched principle of independence . . . . [Citation omitted; para. 6.] [ 49 ] It is a bedrock principle that the exercise of core prosecutorial discretion is immune from judicial review, subject only to the doctrine of abuse of process: see R. v. Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167, at para. 48 ; Krieger v. Law Society of Alberta , 2002 SCC 65 , [2002] 3 S.C.R. 372, at para. 32 .

Abuse of process may be found where the Crown’s conduct “shocks the community’s conscience” or “offends its sense of fair play and decency”: R. v. Babos , 2014 SCC 16 , [2014] 1 S.C.R. 309, at para. 41 . The presence of bad faith and improper motives may indicate this type of conduct: see R. v. Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566, at para. 68 ; Anderson , at para. 49 . [ 50 ] Seen in this light, the malice standard under the tort of malicious prosecution generally operates as an analogue in private law to the doctrine of abuse of process.

The link between these two standards was made clear in Miazga : Where an accused is wrongly prosecuted as a result of the prosecutor’s abusive actions, he or she may bring an action in malicious prosecution.

Like the test for abuse of process , however, there is a stringent standard that must be met before a finding of liability will be made, in order to ensure that courts do not simply engage in the second-guessing of decisions made pursuant to a Crown’s prosecutorial discretion. [Emphasis added; para. 49.] In highlighting this link, I should be clear that malice and abuse of process are distinct standards that have their respective areas of application in private and public law.

That said, they have a similar purpose: they are high standards deliberately designed to capture only very serious conduct that undermines the integrity of the judicial process. By preserving this high bar for judicial intervention, the exercise of prosecutorial discretion can be properly protected. [ 51 ] It is evident that the malice standard will only be met in exceptional cases where the plaintiff can prove, on a balance of probabilities, that a prosecutor’s decision to initiate or continue a prosecution was driven by an improper purpose or motive.

To be improper, that purpose or motive must be wholly inconsistent with Crown counsel’s role as minister of justice. Miazga makes this point abundantly clear. As Charron J. observed, “[m]alice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice” (para. 80 (emphasis in original)).

She went on to emphasize that conduct merely reflecting “incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence ” will necessarily fall short (para. 81 (emphasis added)). (

b) The Malice Standard is Not Applicable to Claims for Charter Damages Alleging Wrongful Non-disclosure [ 52 ] The Attorneys General advance several arguments in favour of imposing malice as the liability threshold necessary to sustain a Charter damages award in this case. These arguments effectively boil down to a single core submission: the balancing of policy factors in Nelles — which led this Court to establish a qualified immunity shielding prosecutors from tort liability absent a showing of malice — is also dispositive here.

Indeed, the heart of the AGBC’s submission is that “the specific cause of action alleged is immaterial to the policy rationale which underlies the immunity” (R.F., at para. 38). In other words, it is irrelevant that the claim at issue is brought under s. 24(1) of the Charter . If the qualified immunity in Nelles is to be effective, it must be treated as a general principle of law that applies equally to a claim for Charter damages as it does to an action in tort ( ibid. , at paras. 69-71). [ 53 ] The AGBC makes a number of points in support of this submission.

First, it argues that Nelles “assumed that an immunity rule would equally apply to a claim for Charter damages”, and that “this was one of the considerations that led the Court to reject absolute immunity” in favour of a qualified immunity based on malice (R.F., at para. 60). In support of this assertion, it cites the following passage from Nelles : Granting an absolute immunity to prosecutors is akin to granting a license to subvert individual rights.

Not only does absolute immunity negate a private right of action, but in addition, it seems to me, it may be that it would effectively bar the seeking of a remedy pursuant to s. 24(1) of the Charter . [p. 195] According to the AGBC, the choice of a qualified rather than absolute immunity was meant to preserve the availability of damages in tort and under the Charter , and it is therefore implicit in Nelles that the liability threshold required in relation to tort actions would necessarily extend to s. 24(1) claims. [ 54 ] Second, the AGBC emphasizes that Ward expressly connected the availability of Charter damages for prosecutorial misconduct to the tort of malicious prosecution:

Different situations may call for different thresholds, as is the case at private law. Malicious prosecution, for example, requires that“malice” be proven because of the highly discretionary and quasi-judicial role of prosecutors . . . . When appropriate, private lawthresholds and defences may offer guidance in determining whether s. 24(1) damages would be “appropriate and just”.

While thethreshold for liability under the Charter must be distinct and autonomous from that developed under private law, the existing causes ofaction against state actors embody a certain amount of “practical wisdom” concerning the type of situation in which it is or is notappropriate to make an award of damages against the state. (Ward, at para. 43) The AGBC argues that the malice standard established in Nelles and elaborated in Proulx and Miazga has withstood the test of time, andis a sound and workable standard for civil claims against prosecutors.

It embodies “practical wisdom” and represents a “careful balance”of competing concerns — on the one hand, “the need to ensure that the common law is responsive to claims of wrongful prosecution”,and on the other, the “the powerful policy considerations that support the existence of a qualified immunity” (R.F., at para. 72). In theAGBC’s view, there is no reason to depart from this careful balance when a claim alleging prosecutorial misconduct is framed as a claimfor Charter damages under s. 24(1).

While liability thresholds developed under the Charter are intended to be distinct from those inprivate law, it does not follow that common law immunities should simply be abandoned in the face of a Charter damages claim. [55] Third, the AGBC argues that exempting s. 24(1) claims from the malice standard would have adverse consequences.If a claimant can prevail on a lower liability threshold in a Charter damages claim than under a related common law tort, the qualifiedimmunity will lose much of its force and the careful balance of policy factors struck in Nelles will be destabilized. [56] With respect, I do not find these points persuasive.

In my view, Nelles and its progeny are not dispositive in this case,and malice does not provide a useful liability threshold for Charter damages claims alleging wrongful non-disclosure by prosecutors. Icome to this conclusion for several reasons. [57] First, the malice standard is firmly rooted in the tort of malicious prosecution, which has a distinctive history andpurpose.

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 beyondthose envisioned at the time of its creation.

As Charron J. warned in Miazga: Given that the tort of malicious prosecution predates the development of our contemporary system of public prosecutions, courts musttake care not to simply transpose the principles established in suits between private parties to cases involving Crown defendants withoutnecessary modification. [para. 44] [58] Second, the purpose of the malicious prosecution tort must be kept in mind in determining whether to expand thereach of the malice standard. Recall that the wrongdoing targeted by this tort is the decision to initiate or continue an improperlymotivated prosecution.

In contrast, the alleged wrongdoing at issue in this case is markedly different — the Crown’s failure to dischargeits constitutional obligations to disclose relevant information to Mr. Henry. [59] 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 impugnedconduct 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, thedecision to disclose relevant information is not discretionary. Rather, disclosure is a constitutional obligation which must be properlydischarged by the Crown in accordance with an accused’s right to make full answer and defence, as guaranteed under ss. 7 and 11(

d) ofthe Charter: see R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, at p. 336; R. v. Mills, (SCC), [1999] 3S.C.R. 668, at para. 5. [60] I readily acknowledge that disclosure decisions often involve difficult judgment calls. As the intervener AttorneyGeneral of Ontario observes, disclosure decisions may require consideration of numerous factors, such as whether the information issubject to special protections for sexual assault complainants, special considerations concerning highly sensitive material, or one of thevarious privileges that attach to information obtained in the course of a criminal prosecution.

Even the basic question of relevance maybe difficult to assess before the Crown is made aware of the defence theory of the case, and where disclosure requests are not explainedor particularized. Furthermore, disclosure obligations are ongoing, which requires prosecutors to continuously evaluate the informationin their possession. [61] However, while I recognize that disclosure decisions pose challenges for prosecutors, they do not implicate the highdegree of discretion involved in the decision to initiate or continue a prosecution.

As described in Crown policy manuals throughout thecountry, the decision to lay charges is governed by two primary factors: first, whether there is a reasonable prospect of conviction andsecond, whether the prosecution would be in the public interest. Manifestly, the “public interest” factor puts substantial discretion in thehands of Crown counsel. That discretion gives prosecutors such a high degree of latitude that the only plausible way to contest it is toassess the underlying motives.

No such discretion exists in the disclosure context, and it is therefore unhelpful to require proof of animproper purpose in an action alleging wrongful non-disclosure. Given that disclosure decisions are not a matter of discretion, themotives of the prosecutor in withholding certain information from the accused are immaterial. [62] Third, the decision to initiate or continue a prosecution falls within the core of prosecutorial discretion, whereasdisclosure decisions do not.

Whether in private or public law, the threshold to intrude upon that core discretion must be onerous, since itsquarely implicates the independence of prosecutors. As this Court held in Krieger: Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protectedfrom the influence of improper political and other vitiating factors by the principle of independence.

. . . . . . these powers emanate from the office holder’s role as legal advisor of and officer to the Crown. In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government.

An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts . . . . [paras. 43 and 45] 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 Stinchcombe , . . . the Court held that the Crown has an obligation to disclose all relevant information to the defence.

While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not . . . a matter of prosecutorial discretion but, rather, is a prosecutorial duty. [ ibid. , at para. 54] [ 63 ] 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. [ 64 ] 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 its 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. 19-20). [ 65 ] In Doucet-Boudreau v.

Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3, Iacobucci and Arbour JJ. stressed the importance of a purposive approach to remedies under s. 24(1): A purposive approach to remedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium : where there is a right, there must be a remedy. More specifically, a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies.

Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies. [Emphasis in original; para. 25.] In my view, restricting the availability of Charter damages for wrongful non-disclosure to cases where the Crown acted with malice would offer neither a responsive nor effective remedy to claimants. A malice standard grounded in “improper purpose” sets too high a bar, and fails to respond adequately to the state conduct at issue. It is also not well suited to the disclosure context.

A threshold specifically tailored to that context is preferable. [ 66 ] For these reasons, I reject the application of the malice standard. In doing so, I do not in any way seek to undercut this Court’s malicious prosecution jurisprudence. The qualified immunity established in Nelles continues to govern tort actions for malicious prosecution. Furthermore, as I will explain, while the malice standard is not directly applicable, the policy factors outlined in Nelles inform the liability threshold in this case.

(2) Policy Concerns Informing the Liability Threshold for Wrongful Non-disclosure [ 67 ] Disclosure is one of the Crown’s fundamental obligations in a criminal prosecution. The Crown is duty-bound to disclose relevant information to the defence, and this obligation is a continuing one. This stringent and, at times, heavy burden on the Crown guarantees an accused’s ability to make full answer and defence.

Indeed, this was precisely the reason that the Court affirmed a constitutional right to disclosure more than two decades ago in Stinchcombe : . . . there is [an] overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. . . .

The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. [Citation omitted; p. 336.] [ 68 ] Canadians thus rightly expect that the Crown will fulfill its disclosure obligations with diligence and rigour. By and large, Crown attorneys working on the front lines of our criminal justice system exceed these expectations on a daily basis. I pause here to note that Mr.

Henry’s allegations of non-disclosure arise, in the main, from events that occurred during the pre- Stinchcombe era, when Crown disclosure practices were not as robust as they are today. Nevertheless, our system remains imperfect, and wrongful failure to disclose is not a mere hypothetical — it can, and does, happen, sometimes taking an extraordinary human toll and resulting in serious harm to the administration of justice. [ 69 ] At the same time, all failures to disclose are not made equal.

Highly blameworthy conduct, such as the intentional suppression of crucial evidence to obtain a conviction at all costs, sits at one end of the spectrum. At the other, one finds good faith errors in judgment about the relevance of certain tangential information. Both scenarios constitute a breach of an accused’s Charter rights. Yet, manifestly, these scenarios do not possess the same persuasive force in terms of justifying a Charter damages award under s. 24(1).

[ 70 ] Given the complex nature of many disclosure decisions, courts should be exceedingly wary of setting a liability threshold that would award Charter damages for even minor instances of wrongful non-disclosure. Crown counsel will, from time to time, make good faith errors. Exposing prosecutors to potential liability every time such errors are made would, in my view, interfere with the proper execution of prosecutorial functions.

Setting the liability threshold too low would also pose a considerable risk that baseless damages claims against the Crown would proliferate. [ 71 ] These compelling good governance concerns — raised in Nelles and its progeny — must be taken into account in determining the appropriate liability threshold for cases of wrongful non-disclosure. As the Chief Justice held in Ward , “the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state” (para. 22).

There are two policy considerations from the malicious prosecution trilogy that I wish to emphasize. First, 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. Second, the liability threshold must avoid a widespread “chilling effect” on the behaviour of prosecutors. [ 72 ] The first concern — diversion from duties — underscores the need for a high liability threshold. In the disclosure process, mistakes are certainly the exception rather than the rule.

That said, if every minor instance of wrongful non-disclosure were to expose prosecutors to liability for Charter damages, they would find themselves spending much of their limited time and energy responding to lawsuits rather than doing their jobs. They “would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials ”, an outcome that “bode[s] ill for the efficiency of [Crown prosecutors] and the quality of our criminal justice system”: Elguzouli-Daf v. Commissioner of Police of the Metropolis , [1995] Q.B. 335 (C.A.), at p. 349.

That avalanche would no doubt contain a few strong claims of serious wrongful non-disclosure, but would invariably bring with it scores of meritless claims, each of which would have to be defended at the expense of core Crown functions. The collective interest of Canadians is best served when Crown counsel are able to focus on their primary responsibility — the fair and effective prosecution of crime.

In my view, the liability threshold must allow for strong claims to be heard on their merits, while guarding against a proliferation of marginal cases. [ 73 ] The second policy concern — the chilling effect on Crown counsel — also supports a high liability threshold. Fear of civil liability may lead to defensive lawyering by prosecutors. One consequence of this defensive approach would be disclosure decisions motivated less by legal principle than by a calculated effort to ward off the spectre of liability.

The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown’s role as a quasi-judicial officer. [ 74 ] For these reasons, I conclude that good governance concerns mandate a threshold that substantially limits the scope of liability for wrongful non-disclosure. In my view, the standard adopted by the application judge, which is akin to gross negligence, does not provide sufficient limits. As I will explain, a negligence-type standard poses considerable problems, and ought to be rejected. [ 75 ] Mr.

Henry submits that an even lower threshold — a simple breach of the Charter without any additional element of fault — should apply in this context. The Chief Justice and Karakatsanis J. take this approach. Specifically, they adopt the Ward framework without modification and rely on case-by-case policy considerations at step three, rather than a heightened threshold, to limit liability.

In my respectful view, this approach fails to address the compelling policy and practical concerns that justify limiting prosecutorial liability. [ 76 ] For more than two decades, this Court has steadfastly affirmed the principle that prosecutorial liability should be carefully circumscribed. My colleagues reject the relevance of Nelles and its progeny to this case. In their view, our malicious prosecution jurisprudence has no bearing here, since “[t]he legal duty on the Crown to disclose relevant evidence does not involve prosecutorial discretion in the sense discussed in Nelles and Miazga ” (para. 128 ).

I grant that there are significant distinctions between the Crown’s discretionary decision to initiate or continue a prosecution, and its disclosure obligations. However, the policy concerns raised in the malicious prosecution trilogy are not confined to the exercise of core prosecutorial discretion.

In my view, those concerns have a broader reach and are implicated wherever there is a risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice. [ 77 ] My colleagues’ proposal would permit claimants to pursue Charter damages based on any allegation that the Crown breached its disclosure obligations — whether the wrongful non-disclosure was intentional, negligent, or accidental.

In my respectful view, this casts too wide a net, exposing prosecutors to an unprecedented scope of liability that would affect the exercise of their vital public function. [ 78 ] No doubt many cases might be thwarted by countervailing considerations invoked at the third step of Ward — and in any event would attract a modest quantum of damages at step four, if the claimant were to succeed at trial.

However, given the absence of a liability threshold, a claim alleging a relatively minor breach with minimal harm to the claimant might well survive a motion to strike at the pleadings stage, and could lead to an award of damages. With respect, I fear that my colleagues’ approach runs the risk of opening the floodgates to scores of marginal claims. [ 79 ] My colleagues suggest that their proposal would not divert Crown counsel from their duties.

In their view, since the inquiry would be focused “on the existence and relevance of the [undisclosed] documents, [and] not on the more complex questions of how discretion should have or could have been exercised”, the role of the prosecutor in civil proceedings would be limited (para. 132). With respect, I disagree. In my view, a detailed examination of prosecutors’ conduct is inevitable.

Such an examination would be necessary, for example, to determine whether case-by-case considerations militate against an award of damages or to set the appropriate quantum of damages for a successful claim. [ 80 ] Similarly, my colleagues imply that their proposal would not have a chilling effect — first, because Crown conduct is already tightly constrained by the obligation to disclose relevant information and second, because “it is the state and not the individual prosecutor who faces liability” (para. 129). With respect, I take a different view.

As I have explained, while the obligation to disclose is non-discretionary, there are invariably difficult judgment calls to be made. Those difficult decisions should be motivated by legal principle, not the fear of incurring civil liability. Furthermore, the fact that damages claims lie against the state and not individual

prosecutors does not mitigate this concern. Like all lawyers, Crown counsel are professionals who jealously guard their reputations andwhose actions are motivated by more than personal financial consequences. [81] I agree with my colleagues that Mr. Henry alleges very serious instances of wrongful non-disclosure thatdemonstrate a shocking disregard for his Charter rights. His claim as pleaded meets the threshold I would establish. However, we shouldbe wary of using Mr. Henry’s exceptional case to justify a substantial expansion of prosecutorial liability.

It is only by keeping liabilitywithin strict bounds that we can ensure a reasonable balance between remedying serious rights violations and maintaining the efficientoperation of our public prosecution system. D.

Applying the Charter Damages Threshold for Wrongful Non-disclosure by Prosecutors [82] As discussed, a cause of action for Charter damages will lie where the Crown, in breach of its constitutionalobligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected toknow, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to makefull answer and defence. I now turn to how this standard will operate in practice.

(1) Policy Concerns May Still Be Considered on a Case-by-Case Basis [83] In setting a heightened per se threshold, I should not be taken as saying that there are no additional good governanceconcerns that could negate a claim for Charter damages in the wrongful non-disclosure context. There may be case-specific policyconcerns that militate against an award, even if the claimant has made out the heightened per se threshold. For example, the claimantmay have an adequate alternative remedy under the Charter or in private law. Where a case-specific policy concern tips the balanceagainst a Charter damages award, this remedy may properly be denied.

(2) What a Claimant Must Show to Meet the Liability Threshold in Cases of Wrongful Non-disclosure [84] The liability threshold is tailored to the wrongful non-disclosure context. There is no inquiry into the Crown’smotive or purpose, which are concepts better-suited to cases where the exercise of core prosecutorial discretion is challenged. Rather, thefocus is on two key elements: the prosecutor’s intent, and his or her actual or imputed knowledge.

Specifically, a cause of action will lieagainst the state — subject to proof of causation — where a prosecutor breaches an accused’s Charter rights by intentionally withholdinginformation when he or she knows, or would reasonably be expected to know, that the information is material to the defence and that thefailure to disclose will likely impinge on the accused’s ability to make full answer and defence. [85] Whether considered at the pleadings stage or at trial, the same formulation of the test applies. At trial, a claimantwould have to convince the fact find

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