Supreme Court

Constitutional Law

Malice does not provide useful liability threshold for Charter breach based on failure to disclose in criminal proceedings

In 1983, H convicted of 10 sexual offences, declared dangerous offender and sentenced to indefinite incarceration. H remained incarcerated until 2009. Convictions subsequently quashed. H sought damages, pleading causes of action in negligence, malicious prosecution and breach of Charter rights. Province applied to strike out certain paragraphs of claim and dismiss claims grounded in negligence and Charter breach. Claim in negligence dismissed but Charter claim allowed to proceed since it was based on allegations of malicious conduct. Court noted that if H intended to pursue Charter damages claim for conduct falling short of malice, he required leave to amend pleadings. H applied to amend pleadings to particularize circumstances in which Province could be liable for Charter breach for non-malicious conduct. Judge granted application, finding that threshold lower than malice should apply and that s. 24(1) damages justified if Crown’s conduct constitutes marked and unacceptable departure from reasonable standards expected of prosecutors. Province’s appeal allowed but H’s further appeal allowed. Cause of action will lie where Crown, in breach of constitutional obligations, causes harm to accused by intentionally withholding information when it knows, or would reasonably be expected to know, the information is material to the defence and that failure to disclose will likely impinge on accused’s ability to make full answer and defence. Threshold high but lower than malice. Claimant must demonstrate that state has breached his Charter rights and that award of damages would serve compensation, vindication or deterrence function. Once that burden met, onus shifts to state to rebut claimant’s case. Malice requires more than recklessness or gross negligence; it requires claimant to demonstrate willful and intentional effort to abuse or distort proper role within criminal justice system. Malice not providing useful liability threshold. Malice requires determination of whether prosecutor motivated by improper purpose, an inquiry relevant to highly discretionary decisions. Decision to disclose relevant information not discretionary; it is constitutional obligation. Compelling good governance concerns raised in malicious prosecution jurisprudence remains relevant, mandating high threshold that substantially limits scope of liability. H alleged very serious instances of wrongful non-disclosure that demonstrated shocking disregard for Charter rights. H may seek to amend pleadings to include claim for Charter damages grounded in wrongful non-disclosure.

Henry v. British Columbia (Attorney General) (May. 1, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35745) Decision at 237 A.C.W.S. (3d) 360 was reversed.  251 A.C.W.S. (3d) 590.

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