Law Times

Law Times • May 11, 2015 Page 3 www.lawtimesnews.com Non-disclosure in criminal cases New standard for prosecutorial liability falls short: Falconer By Julius melniTzer For Law Times he Supreme Court of Canada's recent deci- sion in Henry v. British Columbia (Attorney General) doesn't go far enough in setting a new standard for prosecutorial liability for non- disclosure in criminal cases, says a leading advocate for victims of police and Crown misconduct. "Although the court removed the requirement that plaintiffs must prove malice to succeed, the high standard that the court articulated ensures that it will still be the rare case in which the Crown is exposed to liability," says Julian Falconer of Falconers LLP in Toronto. "Still, the decision breaks new ground and it is a game-changer." But Paul Cavalluzzo of Caval- luzzo Shilton McIntyre Cornish LLP in Toronto says Henry is a balanced decision. "It's not a game-changer in my opinion because of the high threshold that remains," says Ca- valluzzo, who made written sub- missions for the Canadian Asso- ciation of Crown Counsel to the Supreme Court. "It's not so high that it will have a chilling effect on merito- rious claims but high enough so that Crowns will be not worrying about lawsuits against them rather than focusing on the prosecutions for which they're responsible." The Supreme Court's 5-2 judgment, released on May 1, departs from the way Cana- dian courts have traditionally looked at prosecutorial mis- conduct. "For the most part, judges have looked at Crown behaviour in a very general way," says Falconer. "But here the Supreme Court stratified prosecutorial functions, treating the deci- sion to disclose or not disclose in a discreet way and separate from the decision whether or not to initiate a prosecution." The upshot is that prosecu- tors are now subject to differ- ent levels of exposure. Malice, the court noted, is relevant to the discretionary decision to pros- ecute. But the Crown's disclosure obligations are mandatory under the Charter of Rights and Free- doms, making the issue simply whether the Crown provided proper disclosure or not. Nevertheless, the majority made it clear that not all cases of non-disclosure amounted to actionable breaches. To estab- lish liability, a plaintiff has to prove that the prosecutor inten- tionally withheld information; the Crown must have known or ought reasonably to have known that the information was material to the defence and that failure to disclose it would likely impinge on the ability to make a full answer and defence; withholding the information violated the plaintiff 's Charter rights; and the plaintiff suffered harm as a result of the withheld information, something that amounts to a causation or but- for requirement. The minority, while concur- ring in the result, would have applied a more relaxed standard of proof, requiring only that the breach of the disclosure obligation had a direct and serious impact on the trial's fairness and that Charter damages would be an appro- priate remedy that served one or more of the goals of com- pensation, vindication, and deterrence. The court left open the question of whether the threshold for liability in the event of other Charter breach- es was the same. The hurdles that remain for plaintiffs, according to Falcon- er, are still substantial. "It's certainly not a situa- tion where Crown liability is founded on mere negligence," he says. The case dealt with Ivan Henry, a man convicted in 1983 of 10 counts of sexual offence, declared a dangerous offender, and sentenced to an indefinite period of incarceration. He was in jail for almost 27 years until his release on bail in 2009 and acquittal the following year. Malice wasn't an issue in the case; rather, Henry argued the Crown's failure to disclose rel- evant information was an unac- ceptable departure from the stan- dards expected from prosecutors. He sought Charter damages for non-malicious conduct. In finding for Henry, the majority was clearly sensitive to what it characterized as "good governance" policy concerns. They included the potential for the spectre of liability to nega- tively inf luence prosecutors' de- cision-making and have a chill- ing effect on them and the pros- pect that a low threshold could create a host of civil claims that would distract Crowns from their core duties. Falconer says Henry is a clas- sic case of "bad facts" driving the law. "The circumstances were very extreme by any measure, and the breach was egregious," he says. "The problem with treating this case as the poster case for Crown liability is that it signals that plaintiffs will succeed in very few situations." In this context, it's important to note the Supreme Court's de- cision doesn't ultimately deter- mine Henry's rights. The ruling merely allows him to amend his pleadings to in- clude a claim for Charter dam- ages based on non-malicious prosecutorial conduct. Whether or not the Supreme Court has in fact achieved a fair balance, then, may not be clear until the courts decide on Hen- ry's case and other matters that follow. LT NEWS Untitled-2 1 2015-01-06 8:56 AM T 'The problem with treating this case as the poster case for Crown liability is that it signals that plain- tiffs will succeed in very few situations,' says Julian Falconer.

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