Held: 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.
On appeal from the court of appeal for British Columbia Date: 2015-05-01
Indexed as: Henry v. British Columbia (Attorney General)
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 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.
 We would allow Mr. Henry’s appeal and grant his application to amend his pleadings to include a claim for Charter damages against the Attorney General of British Columbia in accordance with these reasons. It is sufficient for Mr. Henry to allege that the Crown breached its constitutional obligation to disclose relevant information and that Charter damages would be an appropriate and just remedy, serving one or more of the functions of compensation, vindication and deterrence. Mr. Henry need not allege that the Crown breached its constitutional obligation intentionally, or with malice, in order to access Charter damages. His pleadings allege that significant non-disclosure resulted in wrongful convictions and 27 years of incarceration. There can be little doubt that, if these allegations are proven, damages would be “appropriate and just” under s. 24(1) of the Charter.