Henry v. British Columbia (Attorney General) et al., (2015) 470 N.R. 200 (SCC)

• Judge: McLachlin, C.J.C., LeBel*, Abella, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 13, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 470 N.R. 200 (SCC);2015 SCC 24;[2015] 2 SCR 214;383 DLR (4th) 383

Henry v. B.C. (A.G.) (2015), 470 N.R. 200 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. MY.001

Ivan William Mervin Henry (appellant) v. Her Majesty the Queen in Right of the Province of British Columbia as Represented by the Attorney General of British Columbia and Attorney General of Canada (respondents) and Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General for Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Association in Defence of the Wrongly Convicted, David Asper Centre for Constitutional Rights, British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Criminal Lawyers' Association and Canadian Association of Crown Counsel (interveners)

(35745; 2015 SCC 24; 2015 CSC 24)

Indexed As: Henry v. British Columbia (Attorney General) et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel*, Abella, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

May 1, 2015.

Summary:

Henry was convicted in 1983 of 10 sexual offences involving eight complainants. He was declared a dangerous offender and sentenced to an indefinite period of incarceration. He remained imprisoned for almost 27 years.

The British Columbia Court of Appeal, in a decision reported at (2010), 294 B.C.A.C. 96; 498 W.A.C. 96, quashed all 10 convictions and substituted acquittals, finding serious errors in the conduct of the trial and concluding that the guilty verdicts were unreasonable in light of the evidence as a whole. Henry brought a civil action against the Attorney General of British Columbia (AGBC), seeking damages under s. 24(1) of the Charter for the provincial Crown's failure to meet its disclosure obligations under the Charter, before, during, and after his criminal trial. In his Notice of Civil Claim, he pleaded negligence, malicious prosecution, misfeasance in public office, abuse of process, and breach of his ss. 7 and 11(d) Charter rights. The AGBC moved to strike Henry's causes of action grounded in negligence and the Charter.

The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 1401, struck the negligence claim. The court allowed Henry's Charter claim to proceed since it was founded on allegations of malicious conduct. However, the court noted that, if Henry intended to pursue a Charter damages claim against the AGBC for conduct falling short of malice, he would have to seek leave to amend his pleadings. Henry applied to amend his pleadings to claim Charter damages against the AGBC for non-malicious conduct. The AGBC argued that a claim for Charter damages grounded in alleged prosecutorial misconduct required proof of malice.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 665, held that a threshold lower than malice should apply, namely, the standard for awarding costs in criminal proceedings for Charter breaches. The court noted that costs awards made under s. 24(1) in criminal proceedings were only justified in limited circumstances where the Crown's conduct represented a marked and unacceptable departure from the reasonable standards expected of prosecutors. The court thus permitted Henry to amend his Notice of Civil Claim in accordance with that threshold. The AGBC appealed.

The British Columbia Court of Appeal, in a decision reported at (2014), 349 B.C.A.C. 175; 596 W.A.C. 175, allowed the appeal. The court held that Henry was not entitled to seek Charter damages for the non-malicious acts and omissions of Crown counsel. Accordingly, the court dismissed Henry's application to amend his pleadings. Henry appealed.

The Supreme Court of Canada allowed the appeal. Proof of malice was not required to make out a cause of action for Charter damages against the provincial Crown in this case. Henry could seek to amend his pleadings to include a claim for Charter damages against the AGBC alleging that the Crown, in breach of its constitutional obligations, caused him harm by intentionally withholding information when it knew, or should reasonably have known, that the information was material to his defence and that the failure to disclose would likely impinge on his ability to make full answer and defence. McLachlin, C.J.C., and Karakatsanis, J., concurring in the result, concluded that "It is sufficient for Mr. Henry to allege that the Crown breached its constitutional obligation to disclose relevant information and that Charter damages would be an appropriate and just remedy, serving one or more of the functions of compensation, vindication and deterrence. Mr. Henry need not allege that the Crown breached its constitutional obligation intentionally, or with malice, in order to access Charter damages".

Editor's Note: *LeBel, J., took no part in the judgment.

Barristers and Solicitors - Topic 1808

The prosecutor - Duty of disclosure - [See all Civil Rights - Topic 8375 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See first, second and fifth Civil Rights - Topic 8375 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - Henry was convicted in 1983 of 10 sexual offences involving eight complainants - He was declared a dangerous offender and sentenced to an indefinite period of incarceration - He remained imprisoned for almost 27 years - In 2010, the British Columbia Court of Appeal quashed all 10 convictions and substituted acquittals, finding serious errors in the conduct of the trial and concluding that the guilty verdicts were unreasonable in light of the evidence as a whole - Henry brought a civil action against the Attorney General of British Columbia (AGBC), seeking damages under s. 24(1) of the Charter for the provincial Crown's failure to meet its disclosure obligations under the Charter, before, during, and after his criminal trial - Henry subsequently applied to amend his pleadings to claim Charter damages against the AGBC for non-malicious conduct - The Supreme Court of Canada held that where a claimant sought Charter damages based on allegations that the Crown's failure to disclose violated his or her Charter rights, proof of malice was not required - The court held that "Mr. Henry may seek to amend his pleadings to include a claim for Charter damages against the AGBC alleging that the Crown, in breach of its constitutional obligations, caused him harm by intentionally withholding information when it knew, or should reasonably have known, that the information was material to his defence and that the failure to disclose would likely impinge on his ability to make full answer and defence" - See paragraph 99.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada stated that "Where a claimant seeks Charter damages based on allegations that the Crown's failure to disclose violated his or her Charter rights, proof of malice is not required. Instead, a cause of action will lie where the Crown, in breach of its constitutional obligations, 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. This represents a high threshold for a successful Charter damages claim, albeit one that is lower than malice. ... Briefly, it recognizes that while malice does not provide a useful or workable framework for dealing with allegations of wrongful non-disclosure by prosecutors, the policy underpinnings of this Court's malicious prosecution jurisprudence inform the proper scope of Crown liability for Charter damages in this context. I emphasize 'this context' because, in my view, it is neither prudent nor necessary to decide whether a similar threshold would apply in circumstances not involving wrongful non-disclosure. ... It would be unwise to speculate about other types of prosecutorial misconduct that might violate the Charter, or to fix a blanket threshold that governs all such claims against the Crown. The threshold established in this case may well offer guidance in setting the applicable threshold for other types of misconduct, but the prudent course of action is to address new situations in future cases as they arise, with the benefit of a factual record and submissions" - See paragraphs 31 to 33.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada concluded that malice did not provide a useful liability threshold for Charter damages claims alleging wrongful non-disclosure by prosecutors - The court came to that conclusion for several reasons - The court stated, inter alia, "First, the malice standard is firmly rooted in the tort of malicious prosecution, which has a distinctive history and purpose. ... Second, the purpose of the malicious prosecution tort must be kept in mind in determining whether to expand the reach of the malice standard. ... Malice requires a showing of improper purpose on the part of the prosecutor. This 'improper purpose' inquiry is apt when the impugned conduct is a highly discretionary decision such as the decision to initiate or continue a prosecution, because discretionary decision-making can best be evaluated by reference to the decision-maker's motives. Unlike the decision to initiate or continue a prosecution, the decision to disclose relevant information is not discretionary. Rather, disclosure is a constitutional obligation which must be properly discharged by the Crown in accordance with an accused's right to make full answer and defence, as guaranteed under ss. 7 and 11(d) of the Charter ... Third, the decision to initiate or continue a prosecution falls within the core of prosecutorial discretion, whereas disclosure decisions do not. Whether in private or public law, the threshold to intrude upon that core discretion must be onerous, since it squarely implicates the independence of prosecutors. ... Finally, a purposive approach to s. 24(1) militates against the malice standard. ... Section 24(1) guarantees that rights are upheld by granting 'effective remedies' to claimants, and is crucial to the overall structure of the Charter because 'a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach' ... In my view, restricting the availability of Charter damages for wrongful non-disclosure to cases where the Crown acted with malice would offer neither a responsive nor effective remedy to claimants" - See paragraphs 56 to 66.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada stated that "Given the complex nature of many disclosure decisions, courts should be exceedingly wary of setting a liability threshold that would award Charter damages for even minor instances of wrongful non-disclosure. Crown counsel will, from time to time, make good faith errors. Exposing prosecutors to potential liability every time such errors are made would, in my view, interfere with the proper execution of prosecutorial functions. Setting the liability threshold too low would also pose a considerable risk that baseless damages claims against the Crown would proliferate. These compelling good governance concerns - raised in Nelles and its progeny - must be taken into account in determining the appropriate liability threshold for cases of wrongful non-disclosure. ... There are two policy considerations from the malicious prosecution trilogy that I wish to emphasize. First, the liability threshold must ensure that Crown counsel will not be diverted from their important public duties by having to defend against a litany of civil claims. Second, the liability threshold must avoid a widespread 'chilling effect' on the behaviour of prosecutors. ... I conclude that good governance concerns mandate a threshold that substantially limits the scope of liability for wrongful non-disclosure" - See paragraphs 70 to 74 - The court also stated that "In setting a heightened per se threshold, I should not be taken as saying that there are no additional good governance concerns that could negate a claim for Charter damages in the wrongful non-disclosure context. There may be case-specific policy concerns that militate against an award, even if the claimant has made out the heightened per se threshold. For example, the claimant may have an adequate alternative remedy under the Charter or in private law. Where a case-specific policy concern tips the balance against a Charter damages award, this remedy may properly be denied" - See paragraph 83.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada concluded that "a cause of action for Charter damages will lie where the Crown, in breach of its constitutional obligations, 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" - The court discussed what a claimant had to show to meet the liability threshold in cases of wrongful non-disclosure - The court stated, inter alia, "The liability threshold is tailored to the wrongful non-disclosure context. There is no inquiry into the Crown's motive or purpose, which are concepts better-suited to cases where the exercise of core prosecutorial discretion is challenged. Rather, the focus is on two key elements: the prosecutor's intent, and his or her actual or imputed knowledge. Specifically, a cause of action will lie against the state - subject to proof of causation - where a prosecutor breaches an accused's Charter rights by intentionally withholding information when he or she 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" - See paragraphs 84 to 90.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada concluded that "a cause of action for Charter damages will lie where the Crown, in breach of its constitutional obligations, 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" - The court stated, inter alia, that "Given the policy concerns associated with exposing prosecutors to civil liability, it is necessary that the liability threshold be set near the high end of the blameworthiness spectrum. ... Indeed, the consequences of setting a lower threshold in this context - simple negligence, or even the gross negligence standard adopted by the application judge - would be serious. This type of threshold implicates a duty of care paradigm that ignores the basic realities of conducting a criminal prosecution. ... A duty of care paradigm risks opening up a Pandora's box of potential liability theories. ... The problems with a negligence-based standard are even more apparent when considering how this lower threshold would operate at the pleadings stage. The lower the threshold, the greater the number of claims that would have to be defended. The mere fact of having to respond to an onslaught of litigation, even if ultimately unsuccessful, would chill the actions of prosecutors and divert them from their proper functions" - See paragraphs 91 to 94.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Supreme Court of Canada stated that "a cause of action for Charter damages will lie where the Crown, in breach of its constitutional obligations, 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" - The court discussed the causation requirement - The court stated that "In addition to establishing a Charter breach and the requisite intent and knowledge, a claimant must prove that, as a result of the wrongful non-disclosure, he or she suffered a legally cognizable harm. Liability attaches to the Crown only upon a finding of 'but for' causation. ... Regardless of the nature of the harm suffered, a claimant would have to prove, on a balance of probabilities, that 'but for' the wrongful non-disclosure he or she would not have suffered that harm. This guarantees that liability is restricted to cases where the intentional failure to disclose was actually the cause of the harm to the accused. The 'but for' causation test may, however, be modified in situations involving multiple alleged wrongdoers. For example, where the claimant alleges that a wrongful conviction was caused in part by the failure of police to provide material information to prosecutors, and in part by the Crown's failure to disclose, then a showing of 'but for' causation will not be necessary. In this scenario, the causation requirement will be satisfied if the claimant can prove that the prosecutorial misconduct materially contributed to the harm suffered" - See paragraphs 95 to 98.

Civil Rights - Topic 8462

Canadian Charter of Rights and Freedoms - Interpretation - Purposive test - [See third Civil Rights - Topic 8375 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See third Civil Rights - Topic 8375 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See first, second and fifth Civil Rights - Topic 8375 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See all Civil Rights - Topic 8375 ].

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [paras. 21, 127].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, consd. [paras. 23, 104].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 24].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, refd to. [para. 26].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [paras. 26, 127].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [paras. 42, 124].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 43].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 49].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 49].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 49].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 49].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [paras. 59, 128].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 59].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 65].

Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] Q.B. 335 (C.A.), refd to. [para. 72].

R. v. Walle (A.J.), [2012] 2 S.C.R. 438; 433 N.R. 1; 533 A.R. 1; 557 W.A.C. 1; 2012 SCC 41, refd to. [para. 86].

R. v. Daley - see/voir R. v. W.J.D.

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 86].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [paras. 86, 128].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 35 O.R.(3d) 35 (C.A.), refd to. [para. 87].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 93].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 2012 SCC 32, refd to. [para. 98].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 105].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 106].

Saskatchewan Federation of Labour v. Saskatchewan (2015), 467 N.R. 3; 451 Sask.R. 1; 628 W.A.C. 1; 2015 SCC 4, refd to. [para. 136].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(1) [para. 2].

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(6) [para. 135].

Authors and Works Noticed:

Roach, Kent, A Promising Late Spring for Charter Damages: Ward v. Vancouver (2011), 29 N.J.C.L. 135, p. 150 [para. 129].

Counsel:

Joseph J. Arvay, Q.C., Alison Latimer, Marilyn Sandford and Cameron Ward, for the appellant;

Peter Juk, Q.C., Karen A. Horsman and E.W. (Heidi) Hughes, for the respondent, Her Majesty the Queen in Right of the Province of British Columbia as represented by the Attorney General of British Columbia;

Mitchell R. Taylor, Q.C., and Diba B. Majzub, for the respondent, the Attorney General of Canada;

Hart Schwartz and Matthew Horner, for the intervener, the Attorney General of Ontario;

Michel Déom and Amélie Dion, for the intervener, the Attorney General of Quebec;

James A. Gumpert, Q.C., for the intervener, the Attorney General of Nova Scotia;

Gaétan Migneault and Kathryn Gregory, for the intervener, the Attorney General of New Brunswick;

Michael Conner and Denis Guénette, for the intervener, the Attorney General of Manitoba;

Graeme Mitchell, Q.C., for the intervener, the Attorney General for Saskatchewan;

Jolaine Antonio and Kate Bridgett, for the intervener, the Attorney General of Alberta;

Frances Knickle and Philip Osborne, for the intervener, the Attorney General of Newfoundland and Labrador;

Sean Dewart and Tim Gleason, for the intervener, the Association in Defence of the Wrongly Convicted;

Marlys A. Edwardh and Frances Mahon, for the interveners, the David Asper Centre for Constitutional Rights and the British Columbia Civil Liberties Association;

Bradley E. Berg, Erin Hoult and Nickolas Tzoulas, for the intervener, the Canadian Civil Liberties Association;

Richard Macklin, Breese Davies and Neil G. Wilson, for the intervener, the Criminal Lawyers' Association;

Written submissions only by Paul J.J. Cavalluzzo and Adrienne Telford, for the intervener, the Canadian Association of Crown Counsel.

Solicitors of Record:

Farris Vaughan Wills & Murphy, Vancouver, British Columbia; Ritchie Sandford, Vancouver, British Columbia; A. Cameron Ward & Company, Vancouver, British Columbia, for the appellant;

Attorney General of British Columbia, Vancouver, British Columbia, for the respondent, Her Majesty the Queen in Right of the Province of British Columbia as represented by the Attorney General of British Columbia;

Attorney General of Canada, Vancouver, British Columbia, for the respondent, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of Quebec, Montreal, Quebec, for the intervener, the Attorney General of Quebec;

Attorney General of Nova Scotia, Halifax, Nova Scotia, for the intervener, the Attorney General of Nova Scotia;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervener, the Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

Attorney General of Alberta, Calgary, Alberta, for the intervener, the Attorney General of Alberta;

Attorney General of Newfoundland and Labrador, St. John's, Newfoundland and Labrador, for the intervener, the Attorney General of Newfoundland and Labrador;

Dewart Gleason, Toronto, Ontario, for the intervener, the Association in Defence of the Wrongly Convicted;

Sack Goldblatt Mitchell, Toronto, Ontario, for the interveners, the David Asper Centre for Constitutional Rights and the British Columbia Civil Liberties Association;

Blake Cassels Graydon, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Stevensons, Toronto, Ontario; Breese Davies Law, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association;

Cavalluzzo Shilton McIntyre Cornish, Toronto, Ontario, for the intervener, the Canadian Association of Crown Counsel.

This appeal was heard on November 13, 2014, before McLachlin, C.J.C., LeBel*, Abella, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on May 1, 2015, including the following opinions:

Moldaver, J. (Abella, Wagner and Gascon, JJ., concurring) - see paragraphs 1 to 100;

McLachlin, C.J.C. and Karakatsanis, J., concurring in the result - see paragraphs 101 to 138.

*LeBel, J., took no part in the judgment.