damages under s. 24(1) of the Charter for a violation of his constitutional right to disclosure. Moldaver J., writing for the majority,
held that the plaintiff was not required to prove malice. However,
the plaintiff was required to show that “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”
(at para. 31). He described this as a “high threshold”.
 In reaching his decision in Henry, Moldaver J. reviewed
some of the policy considerations discussed by Lamer J. in Nelles.
For example, he stated that “[t]he public interest is not well
served when Crown counsel are motivated by fear of civil liability,
rather than their sworn duty to fairly and effectively prosecute
crime” (at para. 40).
The positions of the parties
 The appellants argue that the motion judge erred in two
ways. First, she failed to apply binding appellate authority on
prosecutorial immunity. In effect, she found that there could be
a new exception to prosecutorial immunity depending on the
identity of the claimant. Second, she essentially applied a functional approach in determining the scope of prosecutorial immunity, although this approach had been rejected explicitly in Nelles
and implicitly in Henry.
 The respondents and the York Regional Police defendants
argue that the decision of the motion judge should be upheld
because the claim against the Crown attorneys for negligent legal
advice is novel. They submit that the functional approach to
immunity is appropriate, as the existing case law has only recognized immunity for actions taken in the exercise of core prosecutorial discretion. They also argue that the law has evolved to
recognize that police can be liable for a tort of negligent investigation (see Hill v. Hamilton-Wentworth (Regional Municipality)
Regional Police Services Board,  3 S.C.R. 129,  S.C.J.
No. 41, 2007 SCC 41), and it is not plain and obvious that prosecutorial immunity would bar a claim against Crown attorneys
arising from negligent advice given to police during the course of
The motion judge erred in allowing the cross-claim for
indemnity to proceed
 The motion judge’s reasons respecting the Crown attor-
neys’ immunity from the respondents’ cross-claim are brief.