Section 24(1) of the Charter allows for the award of damages for Charter breaches. “Damages are a powerful tool that can provide a meaningful response to rights violations” [@para 35]. This general principle has been a long standing reality and not a terribly surprising one given that section 24(1) allows for any remedy that “the court considers appropriate in the circumstances.” The precise question before the Supreme Court of Canada in Henry, however, was a new one: can damages be awarded to a claimant who establishes prosecutorial misconduct that falls short of malicious. The short answer is yes, in rare circumstances: R v Henry, 2015 SCC 24

The majority of the Court however noted that they were treading into new territory and that they should do so cautiously. Damages, they opined “represent an evolving area of the law and must be allowed to develop incrementally.”[@para 35]

In 1983 Henry was convicted of 10 sexual assaults; he was convicted and sentenced to an indeterminate period of incarceration as a dangerous offender. He was incarcerated for 27years before the British Columbia Court of Appeal quashed all 10 convictions finding serious errors in the conduct of the trial. [@para 1]

Following his release from prison Henry launched a civil action against the City of Vancouver, the Attorney General of BC and the Attorney General of Canada. With respect to the provincial AG Henry sought damages on the basis that the Crown “should be held liable for its failure- before, during and after his criminal trial – to meet its disclosure obligations under the Charter.” [@para 2]

Initially Henry’s pleadings claimed that the prosecutorial conduct was malicious and sought the damages on that basis. Those pleadings were amended to also seek an award for prosecutorial misconduct that fell short of malice.

The Supreme Court of Canada offered four reasons why the maliciousness standard was ill suited as a threshold for damage claims arising out of wrongful non-disclosure. First, the malice standard is deeply embedded in the tort of malicious prosecution, which of course has a distinct history and objective. Second, malice requires that application judge make a finding of improper purpose. The Court noted that this line of inquiry is entirely appropriate for highly discretionary prosecutorial decisions. However, disclosure is not subject to prosecutorial discretion it is a constitutionally protected right and thus obligation of the Crown. Third, disclosure is not an exercise in core prosecutorial discretion so the onerous threshold of malice is unnecessary. Fourth, a purposive interpretation of section 24(1) does not favour the malice standard.

Moldaver J writing for the majority of the Court held that notwithstanding the fact that the malice standard does not apply in cases of wrongful non-disclosure the departure to a lesser standard is still very high. It must be a high standard because to do otherwise would be to expose “prosecutors to an unprecedented scope of liability that would affect the exercise of their vital public function.” [@para 78]

With this in mind the majority concluded that in a case of wrongful non-disclosure:

[t]here is no inquiry into the Crown’s motive or purpose, which are concepts better-suited to cases where the exercise of core prosecutorial discretion is challenged. Rather, the focus is on two key elements: the prosecutor’s intent, and his or her actual or imputed knowledge. Specifically, a cause of action will lie against the state — subject to proof of causation — where a prosecutor breaches an accused’s Charter rights by intentionally withholding information when he or she 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. [@para 84]

The majority further held that:

Whether considered at the pleadings stage or at trial, the same formulation of the test applies. At trial, a claimant would have to 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.[@para 85]

This approach to the appropriate threshold, less than malice in cases of wrongful non-disclosure, is consistent with the Court’s cautionary words at the outset of the decision:

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” [@para 35]

Less than malicious exercises of prosecutorial power will rarely be cause for damages. In fact, the standard in Henry was incrementally expanded short of malice to accommodate a scenario where the prosecutors failed to discharge a duty for which there exists no discretion.