IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130418

Docket: S114405

Registry:
Vancouver

Ivan
William Mervin Henry

Plaintiff

v.

Her Majesty the
Queen in right of the Province of British Columbia as represented by the
Attorney General of British Columbia, City of Vancouver, William Harkema,
Marilyn Sims and Attorney General of Canada

Defendants

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Ivan Henry, applies to amend his notice of civil claim to
particularize the circumstances in which Her Majesty the Queen in right of the
Province of British Columbia (the “Province”) can be liable for breach of Mr. Henry’s
rights under the Charter of Rights and Freedoms (the “Charter”).

[2]            
The Province opposes the application. It relies on the principles set
out in Nelles v. Ontario, [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609 [Nelles]
for the proposition that the longstanding common law rule of prosecutorial
immunity only allows claims for Charter breaches to succeed if they
arose from malicious conduct by the prosecutor.

BACKGROUND

[3]            
Mr. Henry was convicted on March 15, 1983 of 10 sexual offence
counts involving eight complainants. He was declared a dangerous offender and
sentenced to an indefinite period of incarceration. He remained incarcerated
until granted bail on June 13, 2009. On October 27, 2010, in reasons indexed at
2010 BCCA 462, the Court of Appeal quashed the convictions and entered
acquittals on all counts (the “Appeal Reasons”).

[4]            
The Appeal Reasons, at paras. 11-34, set out in some detail the
history leading up to the plaintiff’s original trial and various events subsequent
to that trial which ultimately led to the order on January 13, 2009, that the
appeal be reopened and heard on its merits. For the purpose of these reasons,
it is not necessary for me to repeat that chronological history.

[5]            
The plaintiff now seeks damages for injuries allegedly suffered as a
consequence of his 1983 conviction and subsequent imprisonment. The plaintiff
alleges that due to the wrongful acts and omissions of the defendants, he was
charged, detained in custody, wrongfully convicted and imprisoned. The
plaintiff claims damages for loss of liberty, pain and suffering, loss of
enjoyment of life, subjugation to prison life and lost income.

[6]            
The particulars of the plaintiff’s claims against the City of Vancouver,
William Harkema, and Marilyn Sims (collectively “the City”) and Attorney
General of Canada (“Canada”) are set out in Henry v. British Columbia
(Attorney General), 2012 BCSC 1401 [Henry No. 1] at paras. 5-7.
I need not repeat them. The claim against the Province relates to the actions of
Crown counsel through the course of the trial and subsequent appeal processes
which are alleged to have breached Mr. Henry’s rights under the Charter.

[7]            
 In Henry No. 1, the Province applied to strike certain
paragraphs of the notice of civil claim and dismiss the claim against the
Province for damages for negligence and breach of Charter rights. In Henry
No. 1, I dismissed Mr. Henry’s claim in negligence. In regard to
the application to dismiss the claim for breach of Charter rights, I
found that the Charter allegations were founded upon allegations of
malicious conduct and given that finding, that it was not appropriate to strike
the paragraphs alleging a breach of the plaintiff’s Charter rights. At para. 72,
I said:

If the plaintiff intends to argue
at the trial of this matter that it is entitled to Charter damages
against the Province absent a finding that the acts of the prosecutors were
done maliciously, he will have to apply for leave to amend his pleadings to
make such an allegation.

[8]            
The plaintiff has now so applied. The Province opposes the application
and argues it does not disclose a cause of action because absent malice, no
claim lies against Crown counsel for Charter damages. The City and
Canada took no position on the proposed amendments.

THE PROPOSED AMENDMENTS

[9]            
Some of the amendments are of a housekeeping nature arising out of the
decision in Henry No. 1. Those amendments are not contested. The
amendments which are contentious on this application are found in the proposed
new paragraph 120 in which the plaintiff describes the various acts and
omissions of Crown counsel that he alleges violated his right to disclosure,
his right to make full answer and defence and his right to a fair trial with a
shopping list of adjectives ranging from (a) negligent to (q) intentional to
(r) malicious. The acts are described as (c) having occurred in bad faith; (n)
contrary to the principles of fundamental justice; and (p) with a total
disregard for the plaintiff’s Charter rights. Paragraph 120(k) says that
the acts were a marked and unacceptable departure from the reasonable standards
to be expected of Crown counsel.

POSITION OF THE PARTIES

A. The Province

[10]        
On this application, the Province submits that the policy reasons which
dictate that prosecutors can only be liable for private law damages when they
have acted with malice apply with equal force to claims against prosecutors for
Charter damages. It submits that Crown immunity would lack any force if
it could be avoided by simply recasting a private law claim into a claim for Charter
damages. There would be no purpose served by the immunity if it barred a tort
claim for negligence but not a claim for damages under the Charter.

[11]        
The Province further submits that if I conclude that the law is
uncertain in regard to the circumstances in which a claim can be brought
forward for Charter damages, I should determine as a matter of law
whether the proposed claim is viable: Pearson v. Boliden Ltd., 2002 BCCA
624, 7 B.C.L.R. (4th) 245 at paras. 35-42; Kripps v. Touche Ross &
Co. (1992), 94 D.L.R. (4^th) 284, 15 B.C.A.C. 184 [Kripps].
In this regard, the Province notes that the only question to be answered on the
application is whether a claim for damages under s. 24(1) of the Charter
provides an exception to the immunity rule set out in Nelles. It submits
that this is a pure question of law and evidence at trial will not illuminate
the point.

[12]        
The Province submits an early resolution of this question is mandated by
the approach in Nelles itself. In Nelles, in anticipating
concerns that anything less than an absolute immunity would leave Crown counsel
exposed to a flood of law suits, the Court noted the existence of summary
processes within the Rules of Court to weed out the unmeritorious claims. The
Province submits that the plaintiff’s proposed amendments, and accompanying
legal theory, do away with the very safety mechanisms that the court in Nelles
relied upon as an effective answer to concerns with lowering the liability bar
from absolute immunity to actionable malice.

B. The Plaintiff

[13]        
The plaintiff submits that it is far from plain and obvious that the
proposed pleadings particularizing alleged Charter breaches against the
Province based upon circumstances that fall short of malice disclose no
reasonable cause of action and are certain to fail. He submits that the
liability of state actors for civil Charter damages is an area of law
that is developing. He submits in the absence of binding legal authority
establishing that a constitutional damage claim relating to the conduct of
Crown counsel is unsustainable absent malice, and the need for the courts to
carefully consider claims in this developing area of law, the proposed
amendments should be allowed.

[14]        
The plaintiff refers to the jurisprudence in criminal actions that has
relied on s. 24(1) to support costs awards against the Crown for Charter
breaches when the conduct is found to be of a marked and unacceptable departure
from the reasonable standards expected of the prosecution: R. v. 974649
Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 [974649 Ontario]. He
submits that no greater test should apply to a civil claim for Charter
damages against Crown counsel. He submits that to limit the claim for Charter
damages in the manner suggested by the Crown would be contrary to the spirit of
Supreme Court of Canada jurisprudence that has held that s. 24(1) should
be given a broad and purposive interpretation and should be construed
generously in a manner that best ensures the attainment of its objects.

DISCUSSION

A. Overview

[15]        
I intend to first discuss the legal test for amending pleadings. I will
then review the authorities regarding deciding points of law on a pleadings
application. I will then turn to the substance of the application. I will
review s. 24(1) and the jurisprudence from the Supreme Court of Canada
concerning how it is to be applied. I will then turn to how s. 24(1) has
been interpreted in both civil and criminal cases. Next, I will review the
authorities that have discussed the interrelationship of prosecutorial immunity
and Charter damages. Finally, I will apply the law as I understand it to
be to resolve whether the contentious amendments should be allowed in whole or
in part.

B. Legal Test for Amending
Pleadings

[16]        
The parties are in agreement that applications for leave to amend should
be considered on the same basis as applications to strike existing pleadings. The
test for striking pleadings was restated in R. v. Imperial Tobacco, 2011
SCC 42 at para. 17, [2011] 3 S.C.R. 45 [Imperial Tobacco]:

17 The parties agree on the test applicable on a motion
to strike for not disclosing a reasonable cause of action under r. 19(24)(a) of
the B.C. Supreme Court Rules. This Court has reiterated the test on many
occasions. A claim will only be struck if it is plain and obvious, assuming the
facts pleaded to be true, that the pleading discloses no reasonable cause of
action: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263,
at para. 15; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at
p. 980. Another way of putting the test is that the claim has no
reasonable prospect of success. Where a reasonable prospect of success exists,
the matter should be allowed to proceed to trial: see, generally, Syl Apps
Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83;
Odhavji Estate; Hunt; Attorney General of Canada v. Inuit
Tapirisat of Canada, [1980] 2 S.C.R. 735.

[17]        
Amendments should be allowed unless it is clear that they disclose no
cause of action. As noted by McLachlin J. (as she then was) in Victoria Grey
Metro Trust Co. v. Fort Gary Trust Co. (1989), 30 B.C.L.R. (2d) 45 at 47
(S.C.):

Similarly, it seems to me obvious
that the court will not give its sanction to amendments which violate the rules
which govern pleadings. These include the requirements related to conciseness
(R. 19(1)); material facts (R. 19(1)); particulars (R.19(11)); and the prohibition
against pleadings which disclose no reasonable claim or are otherwise
scandalous, frivolous or vexatious (R. 19(24)). With respect to the latter, it
may be noted that it is only in the clearest cases that a pleading will be
struck out as disclosing no reasonable claim; where there is doubt on either
the facts or law, the matter should be allowed to proceed for determination at
trial: Minnes v. Minnes (1962), 39 W.W.R. 112, 34 D.L.R. (2d) 497
(B.C.C.A.); B.C  Power Corp. v. A.G.B.C. (1962), 38 W.W.R. 577, 34
D.L.R. (2d) at 211 (B.C.C.A.). If there is any doubt, it should be resolved in
favour of permitting the pleadings to stand: Winfield v. Interior Engr.
Services Ltd. (1969), 68 W.W.R. 383, 4 D.L.R. (3d) 71 (B.C.S.C.). While
these cases deal with striking out claims already pleaded, consistency demands
that the same considerations apply to the question of amendment to permit new
claims.

C. Determining
Issues of Law

[18]        
The Province asks that if I find that there is doubt as to whether a
claim for Charter damages can succeed absent malice, that I decide that
legal question in the context of this application. The Province submits that
the fact that the law concerning Charter damages is in the state of
development is not reason enough to leave this issue to be determined at trial.
It refers to the comments of Taylor J.A. in Kripps at p. 289:

It seems to me that a court is
not bound to refuse relief under Rule 19(24) simply because the relevant area
of law is uncertain, that is to say, because it seems possible another court
might come to a different conclusion on the law. Every aspect of the common law
is necessarily the product of evolution, and this process must continue if the
common law is to serve its purpose. It would be wrong that those against whom action
is brought in an area of law which happens to be in an active state of
development should for that reason alone be required to bear the cost of inquiry
into the facts before the court will decide whether the claim is one which
calls for an answer.

[19]        
The Province also relies on the comments of the Supreme Court of Canada
in Imperial Tobacco for the proposition that the power to strike
pleadings is a measure essential to effective and fair litigation. At paras. 19-20 
the Court said:

[19] The power to strike out claims that have no reasonable
prospect of success is a valuable housekeeping measure essential to effective
and fair litigation. It unclutters the proceedings, weeding out the hopeless
claims and ensuring that those that have some chance of success go on to trial.

[20] This promotes two goods
— efficiency in the conduct of the litigation and correct results. Striking out
claims that have no reasonable prospect of success promotes litigation
efficiency, reducing time and cost. The litigants can focus on serious claims,
without devoting days and sometimes weeks of evidence and argument to claims
that are in any event hopeless. The same applies to judges and juries, whose
attention is focused where it should be — on claims that have a reasonable chance
of success. The efficiency gained by weeding out unmeritorious claims in turn
contributes to better justice. The more the evidence and arguments are trained
on the real issues, the more likely it is that the trial process will
successfully come to grips with the parties’ respective positions on those
issues and the merits of the case.

[20]        
A countervailing view was recently expressed in British Columbia
(Director of Civil Forfeiture) v. Flynn, 2013 BCCA 91 where the Court
expressed the view that a chambers judge hearing a motion to strike pleadings on
a complex question of law is not obliged to come to a conclusion, but can in
his discretion properly leave the matter to be decided at trial.

[21]        
In the circumstances of this case, I have decided that if I conclude that
there is doubt on the law as to whether malice is required for a Charter
claim, the proper exercise of my discretion is to decide now the question of
law posed by the application. By deciding the question now, the parties will
know in advance of trial the nature of the evidence they will have to marshal
for trial. Further, and significantly, I am the designated trial judge and am
ultimately going to have to decide the question, either now or at trial. The
matter has now been thoroughly argued before me on two occasions and little can
be gained by having counsel make further submissions at trial on this question.

D.
Section 24(1) of the Charter

[22]        
Section 24(1) of the Charter provides as follows:

24. (1) Anyone whose rights or
freedoms, as guaranteed by this Charter, have been infringed or denied may
apply to a court of competent jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.

[23]        
The Supreme Court of Canada has long held that s. 24(1) should be
given a broad and purposive interpretation. In 974649 Ontario, McLachlin
C.J.C., for the Court, wrote at paras. 18-20:

18 First, s. 24(1), like all Charter
provisions, commands a broad and purposive interpretation. This section forms a
vital part of the Charter, and must be construed generously, in a manner that
best ensures the attainment of its objects: R. v. Big M Drug Mart Ltd., [1985]
1 S.C.R. 295, at p. 344; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at
p. 155; Canadian National Railway Co. v. Canada (Canadian Human Rights
Commission), [1987] 1 S.C.R. 1114, at p. 1134. Moreover, it is remedial,
and hence benefits from the general rule of statutory interpretation that
accords remedial statutes a "large and liberal" interpretation:
British Columbia Development Corp. v. Friedmann, [1984] 2 S.C.R. 447, at
p. 458; Toronto Area Transit Operating Authority v. Dell Holdings Ltd.,
[1997] 1 S.C.R. 32, at para. 21. Finally, and most importantly, the
language of this provision appears to confer the widest possible discretion on
a court to craft remedies for violations of Charter rights. In Mills, McIntyre
J. observed at p. 965 that "[i]t is difficult to imagine language
which could give the court a wider and less fettered discretion". This
broad remedial mandate for s. 24(1) should not be frustrated by a
"[n]arrow and technical" reading of the provision (see Law Society of
Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 366).

19 The second proposition flows from the first:
s. 24 must be interpreted in a way that achieves its purpose of upholding
Charter rights by providing effective remedies for their breach. If the Court’s
past decisions concerning s. 24(1) can be reduced to a single theme, it is
that s. 24(1) must be interpreted in a manner that provides a full, effective
and meaningful remedy for Charter violations: Mills, supra, at pp. 881-82
(per Lamer J.), p. 953 (per McIntyre J.); Mooring, supra, at paras. 50-52
(per Major J.). As Lamer J. observed in Mills, s. 24(1) "establishes
the right to a remedy as the foundation stone for the effective enforcement of
Charter rights" (p. 881). Through the provision of an enforcement
mechanism, s. 24(1) "above all else ensures that the Charter will be
a vibrant and vigorous instrument for the protection of the rights and freedoms
of Canadians" (p. 881).

20 Section 24(1)’s
interpretation necessarily resonates across all Charter rights, since a right,
no matter how expansive in theory, is only as meaningful as the remedy provided
for its breach. From the outset, this Court has characterized the purpose of
s. 24(1) as the provision of a "direct remedy" (Mills, supra,
p. 953, per McIntyre J.). As Lamer J. stated in Mills, "[a] remedy
must be easily available and constitutional rights should not be ‘smothered in
procedural delays and difficulties’" (p. 882). Anything less would
undermine the role of s. 24(1) as a cornerstone upon which the rights and
freedoms guaranteed by the Charter are founded, and a critical means by which
they are realized and preserved.

[24]        
These comments were echoed in Doucet-Boudreau v. Nova Scotia
(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 where Iacobucci and
Arbour JJ., speaking for the majority, said at para. 25:

25 Purposive
interpretation means that remedies provisions must be interpreted in a way that
provides "a full, effective and meaningful remedy for Charter
violations" since "a right, no matter how expansive in theory, is
only as meaningful as the remedy provided for its breach" (Dunedin,
supra, at paras. 19-20). A purposive approach to remedies in a Charter
context gives modern vitality to the ancient maxim ubi jus, ibi remedium:
where there is a right, there must be a remedy. More specifically, a purposive
approach to remedies requires at least two things. First, the purpose of the
right being protected must be promoted: courts must craft responsive
remedies. Second, the purpose of the remedies provision must be promoted:
courts must craft effective remedies.

[25]        
At para. 51, they continued:

51 The power of the
superior courts under s. 24(1) to make appropriate and just orders to
remedy infringements or denials of Charter rights is part of the supreme
law of Canada. It follows that this remedial power cannot be strictly limited
by statutes or rules of the common law. We note, however, that statutes and
common law rules may be helpful to a court choosing a remedy under s. 24(1)
insofar as the statutory provisions or common law rules express principles that
are relevant to determining what is "appropriate and just in the
circumstances".

E.
Civil Claims under Section 24 (1)

[26]        
While the Supreme Court of Canada has long suggested that s. 24(1)
is available to make appropriate and just orders to remedy infringements or
denial of Charter rights, until the decision in Vancouver (City) v.
Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 [Ward] it had not discussed in
any detail when damages may be awarded in civil actions under s. 24(1) of
the Charter. In Ward, in reasons written by McLachlin C.J.C., the
Court undertook a comprehensive analysis of the object of damages for Charter
breaches and the considerations that guide such awards.

[27]        
In Ward, at para. 4, the Court sets out a four-part test of
when damages may be awarded for Charter breaches:

4 I conclude that
damages may be awarded for Charter breach under s. 24(1) where
appropriate and just. The first step in the inquiry is to establish that a Charter
right has been breached. The second step is to show why damages are a just and
appropriate remedy, having regard to whether they would fulfill one or more of
the related functions of compensation, vindication of the right, and/or
deterrence of future breaches. At the third step, the state has the opportunity
to demonstrate, if it can, that countervailing factors defeat the functional
considerations that support a damage award and render damages inappropriate or
unjust. The final step is to assess the quantum of the damages.

[28]        
At paras. 16-22 it discusses the language of s. 24(1) and the
nature of Charter damages. It notes that the language gives a judge a
broad discretion to determine an appropriate remedy and instructs that it is
improper for courts to reduce this discretion “by casting it in a strait-jacket
of judicially prescribed conditions”. It acknowledges that the prohibition on
cutting down the ambit of s. 24(1) does not preclude judicial
clarification of the circumstances of when it may be “appropriate and just” to award
damages.

[29]        
At para. 22, it instructs that a claim for damages under the Charter
does not seek private law damages but the distinct remedy of constitutional
damages. It is not a private law action in the nature of a tort claim but a
public law action directly against the state for which the state is primarily
liable.

[30]        
At para. 31, it summarizes the role of damages under s. 24(1):

31 In summary,
damages under s. 24(1) of the Charter are a unique public law
remedy, which may serve the objectives of: (1) compensating the claimant for
loss and suffering caused by the breach; (2) vindicating the right by emphasizing
its importance and the gravity of the breach; and (3) deterring state agents
from committing future breaches. Achieving one or more of these objects is the
first requirement for "appropriate and just" damages under s. 24(1)
of the Charter.

[31]        
Commencing at para. 32, the Court discusses countervailing factors
which may limit a claim for s. 24(1) damages. It notes that a complete
catalogue of countervailing considerations remain to be developed as the law in
this area matures. At para. 36, it explains the existence of a potential
claim in tort does not bar a claimant from obtaining damages under the Charter.
It notes that tort law and Charter claims are distinct legal avenues. The
existence of a concurrent action in tort may, however, bar a s. 24(1) damage
claim if the result would be double compensation.

[32]        
In Ward, the Court recognizes that concerns for effective
government may negate the appropriateness of s. 24(1) damages. At para. 39,
it is suggested that if the state establishes that an award of Charter
damages would interfere with good governance, such damages should not be
awarded unless the state conduct meets a minimum threshold of gravity.

[33]        
At para. 43, in a passage on which both sides in this case rely,
the Court suggests that where the state establishes that s. 24(1) damages
raise governance concerns, a minimum threshold such as a clear disregard of the
claimant’s Charter rights may be appropriate. It notes that different
situations may call for different thresholds as is in the case of private law
and gives as an example malicious prosecution, which requires that malice be
proven because of the highly discretionary and quasi-judicial role of
prosecutors. The Court concludes the analysis as follows:

43 … When
appropriate, private law thresholds and defences may offer guidance in
determining whether s. 24(1) damages would be "appropriate and
just". While the threshold for liability under the Charter must be
distinct and autonomous from that developed under private law, the existing
causes of action against state actors embody a certain amount of
"practical wisdom" concerning the type of situation in which it is or
is not appropriate to make an award of damages against the state. Similarly, it
may be necessary for the court to consider the procedural requirements of
alternative remedies. Procedural requirements associated with existing remedies
are crafted to achieve a proper balance between public and private interests,
and the underlying policy considerations of these requirements should not be
negated by recourse to s. 24(1) of the Charter. As stated earlier,
s. 24(1) operates concurrently with and does not replace the general law. These
are complex matters which have not been explored on this appeal. I therefore
leave the exact parameters of future defences to future cases.

F.
Section 24(1) Awards in Criminal Proceedings

[34]        
Section 24(1) has been the foundation of costs orders which have been
made as a sanction for the breach of an individual’s Charter rights in
criminal proceedings. In formulating such awards, the courts have been
conscious of the need to limit such awards to serious Charter violations.

[35]        
In R. v. Jedynack (1994), 16 O.R. (3d) 612 (Ont. Ct. (Gen. Div.))
[Jedynack], Goodearle J. discussed the circumstances in which costs could
be awarded in criminal cases for a breach of s. 24(1) Charter
rights. He said at pp. 619-620:

Courts of superior jurisdiction, empowered, as always they
have been with inherent jurisdiction, were able to award costs against the
Crown. Prior to the enactment of the Charter, this power was sparingly
used; perhaps as noted by Galligan J.A. in R. v. Pawlowski (1993), 12
O.R. (3d) 709 at p. 712, 14 C.R.R. (2d) 296 (C.A.), "only where there
was serious misconduct on the part of the prosecution". Galligan J.A. went
on to say that s. 24(1) has had the effect of enlarging the grounds upon
which a court of competent jurisdiction could exercise its discretion in
awarding costs. Thus it would seem that any court of competent jurisdiction can
award costs to any person whose rights have been infringed or denied. How
extensive should this discretion be? It will no doubt be the ultimate
responsibility of an appellate court superior to this one to enunciate the
threshold that must be penetrated to warrant an award of costs against the
Crown.

In the meantime it would be my view that such an order
should only be made in circumstances where:

1)         The acts, or failures to act, collectively
amount to something well beyond inadvertent or careless failure to discharge a
duty;

2)         Rather the conduct would have to fall
within the realm of recklessness, conscious indifference to duty, or whether
conscious or otherwise, a marked and unacceptable departure from usual and
reasonable standards of prosecution;

3)         Such conduct must be seen to have resulted
in an indisputable and clearly measurable infringement or denial of a right;

4)         Where the costs order is intended to ensure
compliance with an order or show disapproval for conduct which resulted in
serious prejudice to the accused it should, as well, be founded in
circumstances of clear and obvious compensatory need.

Nothing even close to a standard of perfection should
be imposed on prosecutors who, in this day and age, are overburdened with work
and, as was the case here, often largely dependent upon outside resources over
which they have little daily control in the development of their cases, which
many times impact on the discharge or the manner in which they are able to
discharge their duties.

It would be very much contrary to the best interests
of law-abiding society, to allow a policy to develop that in effect allowed
costs awards on a routine basis. For such a policy, if ever allowed to blossom,
could terribly fetter, even cripple, an orderly and generally competent
prosecution process.

[36]        
While the Alberta Court of Appeal in R. v. Pang (1994), 162 A.R.
24, 26 Alta. L.R. (3d) 317 refused to specifically adopt the guidelines set out
in Jedynack, the
comments of the majority of the court in R. v. Robinson, 1999 ABCA 367, 250 A.R. 201, echo the
view that costs should not be awarded against the Crown as a matter of course
for all Charter breaches. At paras. 29-30, McFadyen J.A. said as
follows:

29 While
costs may be awarded against the Crown in the exercise of the Court’s general
jurisdiction, the clear rule has been that such costs will only be awarded
where there has been serious misconduct on the part of the Crown. (See R.
v.Pawlowski, (1993) 79 C.C.C. (3d) 356; R.v. M,. C.A. [1996] 1 S.C.R. 500; Berry
v. British Transportation Commission, [1961] 3 All E.R. 65 (CA).) The
reasons for limiting costs are that the Crown is not an ordinary litigant, does
not win or lose criminal cases, and conducts prosecutions and makes decisions
respecting prosecutions in the public interest. In the absence of proof of
misconduct, an award of costs against the Crown would be a harsh penalty for a
Crown officer carrying out such public duties. It is also clear that the Court
may also grant costs as a remedy under s. 24(1) of the Charter on
proof of breach of the accused’s Charter rights. The conditions on which
the discretion to award such costs should be exercised have not been determined
by this Court. In R. v. Pang (1994), 162 A.R. 24 (Alta. C.A.), on a
certiorari appeal dealing entirely with the issue of the jurisdiction of the
Provincial Court to make a costs award in Charter breach cases, the
panel, in an obiter dicta comment indicated that the Court was not
inclined to adopt the guidelines set out in the decision of Goodearle J. in R.
v. Jedynack (1994), 16 O.R. (3d) 612 (Gen. Div.). Justice Goodearle’s
criteria included acts beyond inadvertent or careless failure to discharge a
duty; amounting to recklessness, a conscious indifference to duty or a marked
or unacceptable departure from usual standards, resulting in an indisputable
and measurable infringement of a right, in circumstances of serious prejudice
to the accused and a clear and obvious compensatory need. However, I do not
understand the Court as saying that the discretion to award costs should remain
entirely unrestricted.

30 It
is my view that this is not an appropriate case in which to attempt to set out
rules or guidelines for s. 24(1) costs awards. The first trial in this
case was concluded before the Supreme Court first settled the law on disclosure
in Stinchcombe, supra. Subsequent to the first appeal, disclosure
was in the process of being made at the same time as the law with respect to
the duty of disclosure was being clarified by the Courts. Suffice it to say,
the reasons for limiting the award of costs against the Crown in other
circumstances apply. Costs should not be routinely awarded. Something more than
a bona fide disagreement as to the applicable law, or a technical,
unintended or innocent breach, whether clearly established or not, must be
required. Otherwise, the criminal courts will be inundated with applications in
this regard. We cannot ignore the fact that disclosure issues continue to occupy
much of the Courts’ time and attention in criminal trials, despite the
existence of rules relating to disclosure, and often, good faith attempts on
the part of police and Crown prosecutors to discharge their duties. Some degree
of misconduct or an unacceptable degree of negligence must be present before
costs are awarded against the Crown under s. 24(1) of the Charter.
With respect, I am unable to concur in the view expressed by my colleague that
costs may be awarded as a remedy for breach of Charter rights in any
case of an "unequivocal failure to discharge one’s clearly established
constitutional duty to disclose." (See para [25]) I view this as opening
the floodgates to even more disclosure litigation. Other remedies short of a
stay of proceedings are available. The most important of these is an order
compelling disclosure which was never sought in this case. Others include an
adjournment, an order for a new trial or a mistrial, if applicable.

[37]        
In the dissenting reasons in Robinson, Berger J.A. suggested the
Crown’s motive or intent was not relevant and any Charter breach could
lead to an award under s. 24(1).

[38]        
In 974649 Ontario, the Supreme Court of Canada endorsed cost
awards in criminal proceedings to sanction Charter breaches. It noted,
however, that such awards would not follow as a matter of course, but only in
circumstances of a marked and unacceptable departure from the reasonable
standards expected of the prosecution. McLachlin C.J.C. said at para. 87:

87  Neither is there any indication that the Crown will be subjected to
such awards unfairly or arbitrarily. Crown counsel is not held to a standard of
perfection, and costs awards will not flow from every failure to disclose in a
timely fashion. Rather, the developing jurisprudence uniformly restricts such
awards, at a minimum, to circumstances of a marked and unacceptable departure
from the reasonable standards expected of the prosecution. I fail to see how
the provision of an expedient remedy in such cases, from a trial court that is
not only competent but also ideally situated to make such an assessment, risks
disrupting the existing system of justice.

G.
Doctrine of Prosecutorial Immunity

i. The Nelles Decision

[39]         
The point of contention on this application is whether the
doctrine of prosecutorial immunity as explained in Nelles extends to
claims against Crown counsel for damages for a breach of Charter rights.
In Henry No. 1, in the context of the Province’s application to
strike the plaintiff’s negligence claim, I reviewed the authorities on prosecutorial
immunity at paras. 17-31. I need not repeat that history here.

[40]        
In Nelles, the Court was confronted with a private law claim of
malicious prosecution arising out of the conduct of Crown counsel. The specific
issue before the Court was whether Crown counsel was absolutely immune from
suit for the well-established tort of malicious prosecution. Malicious
prosecution requires proof of an improper purpose or motive, a motive that
involves an abuse or perversion of the system of criminal justice for ends it
was not designed to serve and as such incorporates an abuse of the office of
the Attorney General and its agents, the Crown Attorneys.

[41]        
The majority judgment was written by Lamer J. (as he then was). He
concluded that the issue of prosecutorial immunity ultimately boils down to a
question of policy. He concluded that as a matter of public policy absolute
immunity for Crown counsel could not be justified.

[42]        
In discussing the policy considerations, Lamer J. gave particular
attention to the matter of claims under the Charter. At pp. 195-196,
he said:

Regard must also be had for the
victim of the malicious prosecution. The fundamental flaw with an absolute
immunity for prosecutors is that the wrongdoer cannot be held accountable by
the victim through the legal process. As I have stated earlier, the plaintiff
in a malicious prosecution suit bears a formidable burden of proof and in those
cases where a case can be made out, the plaintiff’s Charter rights may
have been infringed as well. Granting an absolute immunity to prosecutors is
akin to granting a license to subvert individual rights. Not only does absolute
immunity negate a private right of action, but in addition, it seems to me, it
may be that it would effectively bar the seeking of a remedy pursuant to
s. 24(1) of the Charter. It seems clear that in using his office to
maliciously prosecute an accused, the prosecutor would be depriving an
individual of the right to liberty and security of the person in a manner that
does not accord with the principles of fundamental justice. Such an individual
would normally have the right under s. 24(1) of the Charter to
apply to a court of competent jurisdiction to obtain a remedy that the court
considers appropriate and just if he can establish that one of his Charter
rights has been infringed. The question arises then, whether s. 24(1) of
the Charter confers a right to an individual to seek a remedy from a
competent court. In my view it does. When a person can demonstrate that one of
his Charter rights has been infringed, access to a court of competent
jurisdiction to seek a remedy is essential for the vindication of a
constitutional wrong. To create a right without a remedy is antithetical to one
of the purposes of the Charter which surely is to allow courts to
fashion remedies when constitutional infringements occur. Whether or not a
common law or statutory rule can constitutionally have the effect of excluding
the courts from granting the just and appropriate remedy, their most meaningful
function under the Charter, does not have to be decided in this appeal.
It is, in any case, clear that such a result is undesirable and provides a
compelling underlying reason for finding that the common law itself does not
mandate absolute immunity.

[43]        
He returned to the question of Charter rights at pp. 198-199
where he said:

Further, the use of professional
disciplinary proceedings, while serving to some extent as punishment and
deterrence, do not address the central issue of making the victim whole again.
And as has already been noted, it is quite discomforting to realize that the
existence of absolute immunity may bar a person whose Charter rights
have been infringed from applying to a competent court for a just and
appropriate remedy in the form of damages.

[44]        
In Nelles, the question was whether a claim for malicious
prosecution could be maintained. In deciding that such a claim could go
forward, the Court rejected the concept of absolute immunity for Crown counsel.
From the passages set out above, it is clear that one of the major policy considerations
was that a rule of absolute immunity would bar Charter claims. The Court
rejected such an approach.

[45]        
Lamer J., however, said nothing in Nelles as to the elements of a
Charter claim against Crown counsel. In my opinion, Nelles cannot
be read as determining that Charter actions against prosecutors can only
be brought in circumstances in which malice, as defined in Nelles, is
established.

ii. Post-Nelles
Decisions

[46]        
Since the decision in Nelles, there have been several cases in
which plaintiffs have sought Charter damages in civil actions against
Crown counsel. In McGillivray v. New Brunswick (1994), 149 N.B.R. (2d)
311, 116 D.L.R. (4th) 104 (C.A.) [McGillivray], the plaintiff had been
charged with second degree murder. At a preliminary hearing she was committed
to stand trial. Before the trial commenced, the charges were withdrawn.
Ms. McGillivray then commenced proceedings against the provincial Crown,
claiming the negligence of its employees and agents had violated her s. 7 Charter
right to liberty in a manner not in accordance with the principles of
fundamental justice. She sought damages under s. 24 of the Charter.

[47]        
At trial, in a decision reported at 140 N.B.R. (2d) 365, Creaghan J. recognized
that in Nelles Lamer J. had left open the question of Charter
damages. He said at paras. 22-24:

22        She alleges only a constitutional tort as a cause
to recover damages. She says the Crown must be held responsible for its agents
and employees. She says to grant the Crown absolute statutory immunity would
deny her the right to a constitutional remedy for a constitutional tort. She
maintains that the Supreme Court of Canada in Nelles left this question open.

23 The
argument is compelling and valid as far as it goes.

24 We
need only go back to the observations of Lamer to get direction. When a person
can demonstrate that one of her Charter rights has been infringed, access to a
court of competent jurisdiction to seek a remedy is essential for the
vindication of a constitutional wrong. The question did not have to be answered
in Nelles, but the direction seems clear that neither statutory nor common law
immunity can stand as a bar to a constitutional remedy where it is shown that
there are reasonable grounds for alleging a constitutional tort.

[48]        
In the result, however, Creaghan J. found that the plaintiff had not
established that any of her Charter rights had been infringed, which he
held to be a threshold question that must be answered before the plaintiff
should be permitted to litigate a constitutional tort. He dismissed her action.

[49]        
The decision was upheld on appeal. In upholding the appeal, the Court,
at para. 10, in comments that were clearly obiter, indicated that
in the absence of mala fides there could be no recovery arising out of
the carrying out of duties in relation to the investigation and prosecution of
persons in pursuit in the aims of the justice system. The Court did not
articulate the reason for the requirement and cited no authority for the
proposition.

[50]        
In Mammoliti v. Niagara Regional Police Service, 2007 ONCA 79, 219
O.A.C. 340 [Mammoliti], the plaintiffs were charged with theft and
extortion. After the charges were withdrawn, they commenced an action against
the Crown attorneys seeking damages for malicious prosecution, false arrest and
imprisonment, and Charter breaches. The claims for malicious
prosecution, negligence and breach of the Charter were initially
dismissed on a chambers application. On appeal, the Court  allowed the claims
for malicious prosecution and Charter breaches against the Crown
attorneys to continue. Citing McGillivray, the Court held that liability
for a constitutional tort, such as under ss. 6 and 7 of the Charter,
required willfulness or mala fides in the creation of a risk or course
of conduct that leads to damages. Proof of simple negligence would not be
sufficient for an award of damages in an action under the Charter.

[51]        
In Forrest v. The Queen, 2012 ONSC 429, 296 O.A.C. 244 (Div. Ct.),
Mr. Forrest, who was a prison inmate, was charged with assault after a
fight between prisoners. The charges were ultimately withdrawn. He then
commenced proceedings alleging malicious prosecution and damages pursuant to
s. 24(1) of the Charter for violation of his rights to life,
liberty and security of the person as guaranteed by s. 7 of the Charter.

[52]        
The trial judge denied the claim for damages under s. 24(1) because
the plaintiff failed to prove mala fides when the charges were laid against
him. The appeal was heard subsequent to the Supreme Court of Canada decision in
Ward. At para. 62, the Court held that liability for a breach under
s. 7 of the Charter required willfulness or mala fides in
the creation of a risk or course of conduct that leads to damages. Proof of
simple negligence would not be sufficient for an award of damages in an action
under the Charter, and bad faith was an essential component of a claim
alleging a Charter breach. As authority for the proposition, it cited McGillivray
and Mammoliti. The Court held that nothing said in Ward had
changed the requirement that a plaintiff must prove mala fides.

[53]        
Other courts and commentators have suggested that the law in regard to
the elements of a claim for Charter damages are not resolved. In Holland
v. Ontario (Ministry of the Attorney General), [2000] O.J. No. 566
(S.C.J.), Ratushny J. referred to a case comment authored by Sopinka J., Malicious
Prosecution: Invasion of Charter Interests: Remedies: Nelles v. Ontario; R. v.
Jedynack; R. v. Simpson, (1995), 74 Canadian Bar Review 366 in which the
author, who had been counsel in Nelles and at the time of writing of the
article was a member of the Supreme Court of Canada, points out the conduct of
the police or the prosecutor that does not constitute malicious prosecution may
amount to a Charter breach and attract a remedy under s. 24(1). Ratushny
J. noted at para. 25 to allow Crown immunity to extend to protection from
relief claimed under s. 24(1) of the Charter would be to deny a
tort claim of a constitutionally protected right. She suggested she was not
persuaded that there is or should be prosecutorial immunity for negligent
prosecution amounting to a Charter breach and that the plaintiff’s claim
in that regard had to be considered. On the facts of the case, however, she
concluded that the statement of claim did not disclose a reasonable cause of
action for a Charter breach and she dismissed the action.

[54]        
In Driskell v. Dangerfield, 2007 MBQB 142, 217 Man.R. (2d) 124,
the plaintiff claimed Charter damages against the Crown for infringing
his right to a fair trial under ss. 7 and 11(d). His claim for damages
under s. 24(1) of the Charter was based on allegations that the
Crown counsel in that case were negligent and/or grossly negligent and/or acted
in willful disregard of his rights. In the context of an application to strike
out the plaintiff’s claim in negligence against the prosecutor, Greenburg J.
noted that the defendants did not suggest that the Charter claim as
pleaded could not proceed. At para. 78, she said:

78 Therefore, the
defendants say that the plaintiff can still argue that negligence should be the
standard when considering whether a breach of the Charter has occurred. The
standard or criteria for awarding damages under s. 24(1) of the Charter is
not yet established. The case law is still developing in this area. There may
be no need to show malice or improper purpose to justify an award for damages
under the Charter (see e.g. Dulude v. Canada, [2001] 1 F.C. 545 (C.A.)). And it
may be that the development of" Charter torts" is a more appropriate
way to provide a remedy where actions by prosecutors result in an unfair trial
but fall short of malicious prosecution. These are considerations which a court
will want to take into account in deciding whether a private law duty of care
exists.

[55]        
In Bilich v. Toronto Police Services Board, 2013 ONSC 1445, [Bilich],
the plaintiff claimed breach of his Charter protected rights as a result
of wrongful investigative detention. The plaintiff pleaded that his ss. 7,
8, 9, 11(b) and 11(d) Charter rights were breached. The defendants
argued that these Charter based claims could not succeed. One of the
grounds upon which they relied was that the plaintiff had not pleaded bad
faith, mala fides, malice or improper purposes and such allegations were
a prerequisite to the recovery of damages claimed under the Charter. Frank
J. dismissed the submission. She held that the cases upon which the defendants
relied predated Ward and that in Ward the Court had indicated
that judicially prescribed conditions on s. 24 are improper.

H. Analysis

[56]        
The foundation of the Province’s opposition to the amendment is that a civil
claim for Charter damages against Crown counsel can only succeed if the
plaintiff proves malice as that term was defined in Nelles. The
authorities do not support such a conclusion.

[57]        
In Nelles, the question was left opened. The obiter
comments in the New Brunswick Court of Appeal in McGillivray do not
articulate the basis for a mala fides requirement. The Ontario cases
that have followed McGillivray have done so without any analysis. I am in
agreement with the comments of Frank J. in Bilich that those cases that
have suggested that bad faith, mala fides, malice or improper purposes as
a pre-requisite to a claim for Charter damages must be reconsidered in
light of the instructions in Ward that it is improper for courts to
reduce their discretion to award Charter damages “by casting it in a
strait-jacket of judicially prescribed conditions”.

[58]        
Ward does recognize that when an award of Charter damages
would interfere with good governance, such damages should not be awarded unless
the state conduct meets a minimum threshold of gravity. It suggests that
private law thresholds and defences may offer guidance in determining whether
in particular circumstances s. 24(1) damages would be "appropriate
and just”.

[59]        
There are in these circumstances competing policy interests. On the one
hand good governance, for the policy reasons enunciated in Nelles,
dictates that there must be limits on the nature of claims that can be brought
against Crown counsel arising out of the conduct of their difficult duties. On
the other hand an individual’s Charter rights must be protected, and if
the bar is set too high a person who has suffered loss as a result of a breach
of his Charter rights will be left without a remedy.

[60]        
The distinction between private and public law claims cannot be ignored.
The amendments are not directed to a private law claim for malicious
prosecution for which the state is vicariously liable. They go to a direct
public law action against the state itself to compensate an individual for the
breaches of his individual constitutional rights.

[61]        
I see no need to limit an individual’s claim for Charter damages
by importing the malice requirement which governs private law actions for
malicious prosecution. In my view the good governance concerns can be properly
protected by applying the standard that has been followed in the criminal costs
cases. That standard has been developed to deal with Charter breaches in
the criminal setting. It provides guidance in determining when s. 24(1)
damages would be "appropriate and just” in a civil claim and strikes the
appropriate balance between the competing policy interests.

[62]        
 I find that a claim lies against the Province for Charter
damages if the plaintiff can establish that Crown counsel acted in a marked and
unacceptable departure from the reasonable standards expected of Crown counsel.

I. Conclusion

[63]        
In the result I grant the amendments sought, save and except that the
proposed paragraph 120 will be limited to paragraph (k) of the proposed
amendment and will read as follows:

The various acts and omissions
that violated the Plaintiff’s right to disclosure and/or his right to full
answer and defence and/or his right to a fair trial, as described in paragraphs
113-119 above, were a marked and unacceptable departure from the reasonable
standards expected of the Crown counsel.

[64]        
Such a pleading discloses a cause of an action known to law.

[65]        
The plaintiff is entitled to costs of the application in the cause
against the Province. There will be no costs for or against the City or Canada.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice
Richard B.T. Goepel