COURT OF APPEAL FOR ONTARIO
FELDMAN, BLAIR and LAFORME J.J.A.
B E T W E E N :
DAVID GILBERT
Appellant(s)
- and -
BRIAN GILKINSON, STEVE BYRNE, JOHN MARSLAND, ATTORNEY GENERAL FOR ONTARIO, MARY ANN BARKER, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AND JAMES JORDAN
Respondent(s)
Counsel: Osborne Barnwell, for the appellant James Kendik, for all respondents except James Jordan No one appearing for James Jordan
Heard: November 29, 2005
On appeal from the order of Justice James Spence of the Superior Court of Justice dated April 7, 2005.
R.A. BLAIR J.A.:
1The appellant seeks to set aside the order of Justice James Spence dated April 7, 2005, dismissing this action.
2The appellant’s claims against the Crown respondents are made for various intentional torts allegedly arising out of his prosecution for breach of bail conditions and domestic assault. He was convicted in both matters.
3The respondents Gilkinson, Byrne and Marsland are Crown Attorneys in the District of Peterborough. The respondent Bakker (incorrectly named in the proceedings as “Baker”) is a probation officer. The respondent Jordan is (or was) the lawyer for the appellant’s estranged common law spouse.
4On behalf of the appellant, Mr. Barnwell broadly described the causes of action sought to be asserted in the statement of claim as abuse of public office. As particularly asserted in the claim for relief, they include breach of rights under the Canadian Charter of Rights and Freedoms; intentional infliction of harm by the defendants’ abuse of their public office as Crown Attorneys (or, in the case of Bakker, of her public office as a probation officer); conspiracy; and intentional infliction of mental anguish.
5Mr. Barnwell is careful to say that the claim is not framed in malicious prosecution. The motion judge acknowledged this, but observed that the torts claimed all involve “conduct that is intentional and not proper in the exercise of the responsibilities of [public office]”. He concluded that to succeed in establishing the claims the appellant must establish “malice” in the sense required for a malicious prosecution action, although it was not necessary for the appellant to establish all of the constituent elements of that cause of action (particularly, the requirement that the prior proceedings must have been determined in favour of the plaintiff). I agree.
6Mr. Barnwell accepts that the appellant must prove conduct that amounts to “malice” to succeed. He submits, however, that the motion judge erred in failing to hold that the statement of claim alleges facts that, taken together and read as a whole, give rise to an inference of malice on the part of the respondents. I do not agree.
7A high threshold of proof must be met by a litigant seeking to establish liability on the part of the Attorney General, a Crown Attorney, or an agent of the Crown, for what amounts to an abuse of their public office, whether the action is framed in malicious prosecution or in the guise of some other intentional tort. There is no claim in negligence against the Crown for prosecutorial misconduct. Strong policy reasons support these principles. While the Supreme Court of Canada has set aside what was once an absolute immunity from such liability, officers of the Crown must be able to carry out their high public obligations vigorously and without fear of civil liability unless – to adopt the words of Lamer J. – they engage in “the deliberate and malicious use of the office for ends that are improper and inconsistent with the traditional prosecutorial function”: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 at pp. 196-197. The following excerpt from the judgment of Lamer J. in Nelles, at pp. 193-194 underscores the high threshold for “malice” in this context:
The required element of malice is, for all intents, the equivalent of “improper purpose”. It has according to Fleming, a “wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage” Fleming, op.cit., at p. 609. To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of “minister of justice”. In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. [emphasis added]
8Iacobucci and Binnie J.J. reinforced this language in Proulx v. Quebec (attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9 at para. 35, and added:
As such, a suit for malicious prosecution must be based on more than recklessness or gross negligence. Rather, it requires evidence that reveals a willful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system.
9The Rules of Civil Procedure require that every pleading shall contain a concise statement of the material facts on which the party relies and that conclusions of law may be pleaded only if the material facts supporting them are also pleaded: rule 25.06(1) and (2). The law is clear, however, that where malice is pleaded there is a heavier onus to set out the material facts relief upon; “the pleading shall contain full particulars”: rule 25.06(8).
10Here, with the exception of the allegation in paragraph 14 that Gilkinson lied in his description of a document that was filed as part of the impugned bail hearing, there are no facts pleaded that taken individually, or together, could lead to an inference that the alleged conduct of the respondents rose to the level where it demonstrated malice towards the appellant. For the most part the conduct consists of acts of the Crown Attorney defendants and of Ms. Bakker (the probation officer) in the course of the exercise of their responsibilities in the context of the criminal proceedings and (in the case of Bakker) the parole hearing that followed the appellant’s conviction. Mr. Gilbert may well perceive that this conduct was directed towards him in an adversarial way. However, as the motion judge found, the facts alleged do not provide a basis for proof of malice in this context. Consider the following, for example.
11The appellant was charged with breach of bail conditions and with domestic assault against his common law spouse. He was convicted on both charges. In this action, he alleges that the defendant Gilkinson – the senior Crown Attorney in Peterborough – “took an unusual interest in his case” and “had a personal dislike for him”. “Gilkinson surprisingly took carriage of his bail hearing”, “secured the co-operation of the defendant Jordan (counsel to his common law spouse) to attend and give evidence” at the bail hearing, and failed to have Jordan excluded as a witness at the hearing. All of this is alleged to be part of a conspiracy between Gilkinson and Jordan to coerce the appellant into settling the family law issues between him and his former spouse in a fashion favourable to the latter. Again, this may be the perception of Mr. Gilbert, but on the facts as pleaded his concern is mere speculation.
12Importantly, the appellant does not contest the convictions, nor does he contest the bail order that resulted from the hearing conducted by Gilkinson and at which Jordan testified. It is evident from the foregoing passages from Nelles and Proulx that mere personal dislike is not sufficient to ground a case in malice, nor is the fact that a Crown Attorney “took an interest in a case” or conducted a bail hearing. It is the role of a Crown Attorney to do both of these latter things. Such acts do not provide a basis for an actionable conspiracy, nor can they form the basis for a claim of abuse of public office.
13As the motion judge noted, the plea that Gilkinson lied to the court in describing a document presented during the bail hearing could possibly lead to an inference of malice. However, as the motions judge also found, that allegation goes to the adequacy and propriety of the bail hearing and the order made at that hearing. To allow it to be made now would amount to an impermissible collateral attack on the bail order (which the appellant does not seek to impugn): see Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. In this respect, the action was properly dismissed as against Gilkinson on abuse of process grounds.
14The allegations against the defendant Byrne, another Peterborough Crown Attorney, are that he refused to consent to a variation of the appellant’s bail order and that he failed to agree to an earlier date for the continuation of the appellant’s trial. He is said either to have done this under the instructions of Gilkinson (with no facts pleaded to support these allegations) or on his own and in any event, to have personalized the case and to have referred to the appellant as “a jerk”. Byrne is alleged to have acted in bad faith and to have abused his office as a Crown Attorney (again, with no facts other than the foregoing in support of the allegations). I agree with the motion judge that the pleading discloses no factual basis for a finding of malice on the part of the defendant Byrne.
15Finally, the defendant Bakker is alleged to have conspired with Gilkinson “to deny [the appellant] his liberty and influenced the Parole Board to refuse his application for [a Temporary Absence Permit]”. In this regard, Bakker and Gilkinson are stated to have recommended against the appellant’s release. These acts alone – carried out in the course of Bakker and Gilkinson’s respective duties as representatives of the Crown in the parole proceedings –cannot form the basis for a finding of malice, however, or for a finding of an unlawful act that would form the basis for a civil conspiracy. Dressing them up with a sweeping assertion the “they acted maliciously and in bad faith and that their actions were wanton abuse of their public office” does not cure the problem, without the pleading of a factual basis that would support the assertion. It is well settled that on a Rule 21 motion, the court is not required to accept “allegations based on assumptions and speculations” as true: Operation Dismantle v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441 at 455.
16It is not necessary to analyse the further allegations in the statement of claim in detail. Suffice it to say, I agree with the motion judge that the allegations, taken separately or read cumulatively as a whole, do not support the allegation of maliciously improper conduct on the part of the defendants. The statement of claim was properly struck as against all Crown defendants except Gilkinson pursuant to Rule 21, and the action was properly dismissed as against him on abuse of process grounds because the lying allegation constituted a collateral attack on the bail order that was made and that is not contested by the appellant.
17Accordingly, I would dismiss the appeal.
18In accordance with the agreement of counsel, the costs of the appeal are fixed at $4,000 all inclusive, payable by the appellant to the Crown respondents.
“R.A. Blair J.A.”
“I agree K. Feldman J.A.”
“I agree H.S. LaForme J.A.”
