Henry v. British Columbia (Attorney General), 2015 SCC 24 (Constitutional law — Charter of Rights — Remedies — Damages — Civil action — Prosecutorial misconduct in criminal proceedings)

Appeal from the judgment of from the British Columbia Court of Appeal (2014 BCCA 15), dated January 21, 2014, setting aside a decision of Goepel J. (2013 BCSC 665).

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 inNelles v. Ontario, [1989] 2 S.C.R. 170, but allowed H’sCharter 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 (6:0): 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 Charterauthorizes 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 Charterdamages, 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’sCharter 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 Charterwithout 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 hisCharter 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 forCharter 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 accessCharter 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 theCharter. 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.

Reasons for judgment by Moldaver J. (Abella, Wagner and Gascon JJ. concurring). Joint reasons concurring in the result by McLachlin C.J. and Karakatsanis JJ. (Note that LeBel J. heard the appeal but took no part in the judgment.)

Neutral citation: 2015 SCC 24. Docket No. 35745