Supreme Court of Canada says Ivan Henry can sue for Charter breach

In a unanimous decision, the Supreme Court of Canada held today that a cause of action will lie where the Crown, in breach of its constitutional obligations (i.e., its obligations under the Charter), causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.

While the bar remains high, it is nowhere near as high as the “malicious prosecution” bar—one requiring proof of malice on the part of the prosecutor.

A happy day for Ivan Henry, as the decision will doubtless spur settlement discussions. A happy day for the wrongly convicted community, as the decision makes prosecutors materially more accountable than before.

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