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SCC Confirms High Crown Disclosure Obligations

When charged with an Occupational Health and Safety Act violation, you need to be provided with complete Crown disclosure before you can decide whether to defend the charge or  seek another resolution.  Only when you have received full disclosure can you make the informed decision about which path to pursue.  In general, “all fruits of the investigation” must be provided to defence counsel, whether the information assists the Crown’s case or not.  Failure to provide full disclosure may result in a Canadian Charter of Rights and Freedoms (“Charter”) violation, because it inhibits the accused’s ability to make full answer and defence.

In a recent Supreme Court of Canada (“SCC”) case, Henry v. British Columbia (Attorney General) 2015 SCC 24 (35745) the court has again emphasized the legal duty imposed on the state by the Charter to provide full and timely disclosure.  In this case the accused was convicted on 10 sexual offences, declared a dangerous offender and spent 27 years in prison.  In October 2010 the B.C. Court of Appeal quashed all 10 convictions based on a finding of serious errors in the conduct of the trial.  The accused in the matter had made numerous requests for full disclosure, including all statements, and medical and forensic information.  Approximately 30 statements were not disclosed to the accused, many of which had inconsistencies that would have assisted the defence.  As well key forensic information was not disclosed.  The accused sought civil damages for the failure.

The Attorney General of British Columbia (“AGBC”) moved to strike the causes of action from the claim that alleged negligence and breach of the Charter.  The accused applied for leave to amend his Claim to include Charter damages for non-malicious conduct.  On appeal by the AGBC, the BC Court of Appeal allowed the appeal ruling that the accused could not seek Charter damages for the non-malicious acts and omissions of the Crown lawyer.  The matter was then appealed to the SCC which allowed the appeal.

The Court held that Section 24(1) of the Charter authorizes courts of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice.  In other words, where Charter damages are sought, based on allegations of the Crown’s failure to disclose information, proof of malice is not required.  A cause of action may lie where the Crown, in breach of its constitutional obligations, causes harm to an accused by intentionally withholding information when it knows that the information is material to the defence, and failure to provide it will affect the ability to make answer and defence.

This standard represents a high threshold for a successful damages claim, but one that is lower than the proof required to show malice.  To be successful, the accused must convince the court, 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 failure to disclose would likely impinge on his/her ability to make full answer and defence;
3. That withholding the information violated his/her Charter rights; and
4. He/she suffered harm as a result.

The case again emphasizes the legal duty imposed on the state by the Charter to provide full and timely disclosure.    In reviewing your charges under the Occupational Health and Safety Act, the lawyers at CCP always seek to ensure that complete disclosure has been provided before taking any next steps in the defence or resolution of your matter.  Click here for a list of lawyers from the CCP team that can assist you with all your OHSA questions.