Supreme Court of Canada finds damages where Crown intentionally withholds material information from defence.

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"H was convicted in 1983 of 10 sexual offences, declared a dangerous offender, and imprisoned for almost 27 years. In October 2010, the B.C. Court of Appeal quashed all 10 convictions and substituted acquittals for each, finding serious errors in the conduct of the trial and concluding that the guilty verdicts were unreasonable in light of the evidence as a whole. H brought a civil suit against the Attorney General of British Columbia (“AGBC”), seeking damages under s. 24(1) of the Charter for harm suffered as a consequence of his wrongful convictions and imprisonment.

H alleges that the Crown failed to make full disclosure of relevant information before, during, and after his trial. H made numerous requests for disclosure of all victim statements as well as medical and forensic reports. The Crown did not disclose any of the requested material before the commencement of trial. At trial, the Crown provided him with several victim statements, but approximately 30 additional statements were not disclosed. These statements revealed inconsistencies that could have been used to attack the already-suspect identification evidence put forward by the Crown. Key forensic evidence was also not disclosed. Furthermore, the Crown failed to disclose the existence of another suspect who had been arrested twice in the vicinity of the attacks.

In his Notice of Civil Claim, H pleaded various causes of action, including negligence, malicious prosecution, and breach of his ss. 7 and 11 (d) Charter rights. The AGBC moved to strike the causes of action grounded in negligence and the Charter . The B.C. Supreme Court struck the negligence claim as inconsistent with this Court’s holding in Nelles v. Ontario, [1989] 2 S.C.R. 170, but allowed H’s Charter claim to proceed since it was founded on allegations of malicious conduct. The court noted, however, that if H intended to pursue a Charter damages claim against the AGBC for conduct falling short of malice, he would have to seek leave to amend his pleadings. H applied for leave to amend his pleadings to claim Charter damages against the AGBC for non-malicious conduct. In permitting H to amend his claim accordingly, the application judge found that a threshold lower than malice should apply and that s. 24(1) damages awards are justified where the Crown’s conduct represents a marked and unacceptable departure from the reasonable standards expected of prosecutors. The Court of Appeal unanimously allowed the AGBC’s appeal, concluding that H was not entitled to seek Charter damages for the non-malicious acts and omissions of Crown counsel."

Henry v. B.C. (A.G.), the S.C.C. held (unanimously, with two judges writing separate joint concurring reasons) that the appeal is allowed; s. 24(i) of the Charter authorizes courts of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice.

From the decision:

Justice Moldaver wrote as follows (at paras. 82, 91-92, 95-99):

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

It may seem harsh to deny Charter damages for cases of wrongful non-disclosure which, while less serious, still result in a violation of an accused’s Charter rights. However, it is a reality that wrongful non-disclosures will cover a spectrum of blameworthiness, ranging from the good faith error, quickly rectified, to the rare cases of egregious failures to disclose exculpatory evidence. Given the policy concerns associated with exposing prosecutors to civil liability, it is necessary that the liability threshold be set near the high end of the blameworthiness spectrum. In reaching this conclusion, I do not purport to create silos of Charter violations, classifying some as worthy of concern and others as inconsequential. Courts should endeavour, as much as possible, to rectify Charter breaches with appropriate and just remedies. Nevertheless, when it comes to awarding Charter damages, courts must be careful not to extend their availability too far.

Indeed, 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. Mr. Henry’s case illustrates the fact that the information ultimately disclosed to an accused is not simply a product of what prosecutors decide to disclose on their own initiative. Rather, disclosure depends on the interplay of a number of factors, including the rigour of the police investigation, the forthrightness of the police in communicating information to prosecutors, and the disclosure decisions taken by the Crown.

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. In cases involving wrongful convictions, this “but for” test avoids the thorny issue of whether or not factual innocence is required — that is, proof that the accused did not in fact commit the crimes alleged. Instead, the focus of the inquiry is on the proceedings that occurred at the time of the intentional failure to disclose. That said, without deciding the issue, I would not foreclose the possibility that evidence of factual innocence or guilt could go to the quantum of damages.

Harm can be shown by the claimant in different ways. I do not propose an exhaustive list, but offer several examples. A historical wrongful conviction would certainly qualify. Charter damages would also be available where the wrongful non-disclosure led to a conviction at trial that was later overturned on appeal, and ultimately replaced by an acquittal — either entered directly on appeal or following a new trial. Even if the claimant was acquitted at trial, a Charter damages award would be available where it could be shown that the charges would have been dismissed or withdrawn at an earlier stage of proceedings had proper disclosure been made. In such a case, damages might serve to compensate for time wrongfully spent in custody and any consequential harm suffered as a result of the criminal proceedings.

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. This guarantees that liability is restricted to cases where the intentional failure to disclose was actually the cause of the harm to the accused.

The “but for” causation test may, however, be modified in situations involving multiple alleged wrongdoers. For example, where the claimant alleges that a wrongful conviction was caused in part by the failure of police to provide material information to prosecutors, and in part by the Crown’s failure to disclose, then a showing of “but for” causation will not be necessary. In this scenario, the causation requirement will be satisfied if the claimant can prove that the prosecutorial misconduct materially contributed to the harm suffered: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.

… Proof of malice is not required to make out a cause of action for Charter damages against the provincial Crown in this case. Mr. Henry may seek to amend his pleadings to include a claim for Charter damages against the AGBC 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."

Note: This is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.