Supreme Court Refines The Test For Damages For Non-Disclosure: Henry V. British Columbia (Attorney General)


This decision deals with the issue of whether a person who was wrongfully convicted due to a breach of his constitutional rights can claim Charter damages based on the negligent conduct of the Crown Attorney. There was no claim that the conduct of the Crown Counsel was malicious but, rather, that it was a marked and unacceptable departure from the reasonable standards expected of Crown counsel.

Until now, the jurisprudence only permitted claims for malicious prosecution against a prosecutor who intentionally acted to subvert justice. Mr. Henry sought to advance a claim against the Crown for non-malicious acts and omission of Crown counsel.


Mr. Henry was convicted in 1983 of 10 sexual offence counts, was declared a dangerous offender and sentenced to an indefinite period of incarceration. He remained incarcerated for almost 27 years until he was granted bail in 2009 and subsequently acquitted in October 2010. Mr. Henry then sought damages against the prosecutors for the injuries he alleges he suffered as a consequence of the wrongful conviction and incarceration. The claim relates to the actions of Crown counsel through the course of the trial and subsequent appeal processes.

Mr. Henry alleged that the Crown failed to make full disclosure of relevant information that was material to his ability to make full answer and defence. The B.C. Court of Appeal agreed and declared a mistrial (some 27 years after the conviction was entered). Rather than ordering a new trial, the Court of Appeal entered acquittals for each of Mr. Henry's convictions.

Mr. Henry subsequently commenced a civil action against the Attorney General of British Columbia, amongst others, for breach of his Charter rights arising from the prosecutor's failure to make full disclosure of the relevant evidence. Mr. Henry sought to advance various causes of action, including negligence, malicious prosecution, and breach of his sections 7 and 11(d) Charter rights. The dispute that ended up before the Supreme Court of Canada was the proposed claim for Charter damages against the Attorney General for non-malicious conduct.

The B.C. Court of Appeal struck the claim on the basis of the existing Supreme Court authority (Nelles v Ontario, [1989] 2 SCR 170; Proulx v Quebec (Attorney General), 2001 SCC 66; and Miazga v. Kvello Estate, 2009 SCC 51) that foreclosed prosecutorial liability for negligence and required evidence of malice.

The Decision of the Supreme Court


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