Phillion v. Attorney General for Ontario et al.
[Indexed as: Phillion v. Ontario (Attorney General)]
Ontario Reports
Court of Appeal for Ontario,
Goudge, Feldman and MacFarland JJ.A.
July 31, 2014
121 O.R. (3d) 289 | 2014 ONCA 567
Case Summary
Actions — Bars — Abuse of process — Plaintiff convicted of murder in early 1970s — Crown failing to disclose existence of report by investigating police officer confirming that plaintiff had alibi at time of murder — Officer later claiming that alibi was discredited — Court of Appeal determining on reference that plaintiff's trial was not unfair as Crown's disclosure obligations at that time did not mandate disclosure of discredited alibi — Officer's report admitted as fresh evidence that could have affected outcome of trial — Conviction quashed and new trial ordered — Crown withdrawing charge — Plaintiff bringing action for damages for negligence and wrongdoing of Crown and police in withholding information about alibi — Motion judge erring in dismissing action as abuse of process — Plaintiff raising issues that were not dealt with by Court of Appeal on reference — Findings of Court of Appeal on reference not intended to bind future hearing if new trial were held — That conclusion applying equally to civil action.
Civil procedure — Stay of proceedings — Plaintiff convicted of murder in early 1970s — Crown failing to disclose existence of report by investigating police officer confirming that plaintiff had alibi at time of murder — Court of Appeal admitting officer's report as fresh evidence on reference by Minister of Justice and finding that it could have affected outcome of trial — Conviction quashed — Plaintiff bringing action for damages for negligence and wrongdoing of Crown and police in withholding information about alibi — Motion judge erring in staying action under s. 106 of Courts of Justice Act — Grant of stay bringing administration of justice into disrepute — Courts of Justice Act, R.S.O. 1990, c. C.43.
The plaintiff was convicted in the early 1970s of murder and sentenced to life imprisonment. Following the Supreme Court of Canada's 1991 decision in R. v. Stinchcombe, he sought to reopen his case and made requests for full disclosure of his Crown file, but received only a redacted version. In 1998, he received a copy of his Corrections Canada file, which included previously undisclosed, potentially exculpatory evidence, including a report written by the investigating officer, M, in which M stated that he had confirmed that the plaintiff had an alibi at the time of the murder. M claimed that he had subsequently discredited the alibi. The plaintiff filed an application with the federal Minister of Justice for a review of his conviction under s. 696.1 of the Criminal Code, R.S.C. 1985, c. C-46. The minister ordered a reference to the Court of Appeal. The court was unable to decide one way or the other whether the alibi had in fact been discredited. As the onus of proof was on the plaintiff, the court proceeded on the assumption that the alibi was discredited. The court found that the plaintiff's trial was not unfair as the Crown's disclosure obligations at the time did not mandate disclosure of a discredited alibi. It admitted M's report as fresh evidence and found that the guilty verdict could not stand because cogent evidence that existed at the time could have affected the outcome of the trial but was not put before the jury. The plaintiff's conviction was quashed and a new trial was ordered. Before the new [page290] trial took place, the Crown withdrew the charge. The plaintiff brought a civil action for damages based on the negligence and wrongdoing of the Crown and the police in withholding information about the alibi. The motion judge dismissed the action as an abuse of process. She found that if it was not an abuse of process, it should be stayed under s. 106 of the Courts of Justice Act. The plaintiff appealed.
Held, the appeal should be allowed.
The motion judge erred in finding that the plaintiff was seeking to relitigate issues which had been decided by the Court of Appeal on the reference. The plaintiff was raising issues which were not considered or determined by the Court of Appeal. Moreover, the nature of the reference was such that the findings of the court could not have been intended to bind a future hearing if a new trial was ordered. It followed that the same conclusion applied with respect to a civil action. The specific purpose of the reference and the questions it addressed indicated that the stakes, purpose and process were entirely different from this civil action. It would be unfair to preclude the plaintiff from bringing a civil action on the basis that he was bound by an implicit finding made on the reference that there was no malice. Finally, and in any event, the findings made on the reference with respect to the conduct of the Crown and police did not consider any issues of negligence or a common law duty of care.
The motion judge erred in finding that the passage of time indicated that a stay was appropriate. The fact that so much time had passed was no fault of the plaintiff's. Moreover, the motion judge erred in taking into account, as a factor in favour of granting a stay, the plaintiff's contrary positions on the reference and in his civil action with respect to whether the passage of time meant no proper trial could now be held and whether he was impugning the conduct of the defendants. Once the Court of Appeal effectively rejected the plaintiff's position on the effect of the passage of time, he was entitled to change that position going forward. As for impugning the defendants' integrity, that was not an issue that the plaintiff had to prove on the reference. Now, in the civil action, he did. It would bring the administration of justice into disrepute to grant a stay and deprive the plaintiff of any opportunity to seek financial redress for his conviction, when he did not have the opportunity to present a full defence at trial.
Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19, 304 O.A.C. 106, 442 N.R. 140, 2013EXP-1164, J.E. 2013-639, EYB 2013-220248, 49 Admin. L.R. (5th) 1, 32 C.P.C. (7th) 223, 356 D.L.R. (4th) 595, 226 A.C.W.S. (3d) 139; Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC Â220-071, 17 C.R. (6th) 276, REJB 2003-49439, 120 L.A.C. (4th) 225, 59 W.C.B. (2d) 334, apld
R. v. Phillion, [2009] O.J. No. 849, 2009 ONCA 202, 241 C.C.C. (3d) 193, 246 O.A.C. 317, 65 C.R. (6th) 255; R. v. Phillion, [2010] O.J. No. 2602, 2010 ONSC 1604, 214 C.R.R. (2d) 284, 256 C.C.C. (3d) 63, 77 C.R. (6th) 170 (S.C.J.), consd
Other cases referred to
R. v. Mahalingan, [2008] 3 S.C.R. 316, [2008] S.C.J. No. 64, 2008 SCC 63, 237 C.C.C. (3d) 417, EYB 2008-150418, J.E. 2008-2190, 243 O.A.C. 252, 300 D.L.R. (4th) 1, 381 N.R. 199, 61 C.R. (6th) 207, 79 W.C.B. (2d) 820; R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; [page291] R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, 116 N.R. 361, J.E. 91-48, 43 O.A.C. 277, 61 C.C.C. (3d) 300, 2 C.R. (4th) 153, 1 C.R.R. (2d) 82, 11 W.C.B. (2d) 358; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210; R. v. Truscott, [2007] O.J. No. 3221, 2007 ONCA 575, 226 O.A.C. 200, 225 C.C.C. (3d) 321, 50 C.R. (6th) 1, 75 W.C.B. (2d) 479
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 11(, 24(1)
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106
Criminal Code, R.S.C. 1985, c. C-46, s. 696.1
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3) (d)
APPEAL from the order of Frank J., [2013] O.J. No. 1867, 2013 ONSC 2426 (S.C.J.) dismissing an action and granting a stay of proceedings.
William V. Sasso and David Robins, for appellant.
C. Kirk Boggs and Jasmine T. Akbarali, for respondents John Andrew McCombie, Stephen Nadori and the Ottawa Police Services Board.
Ronald Carr and Heather C. Mackay, for respondent Attorney General for Ontario.
The judgment of the court was delivered by
[1] FELDMAN J.A.: — In 1972, Mr. Phillion confessed to the 1967 murder of Leopold Roy in Ottawa. Shortly thereafter, he retracted his confession. He was convicted of murder and sentenced to life imprisonment, with unsuccessful appeals up to the Supreme Court of Canada. He maintained his innocence throughout 31 years of incarceration.
[2] Following the Supreme Court of Canada's 1991 decision in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, he sought to reopen his case and made requests for full disclosure of his Crown file, but received only a redacted version. It was not until 1998 that he received an envelope from his parole officer containing a copy of his Corrections Canada file, which included previously undisclosed, potentially exculpatory evidence, including a report written by the investigating officer on the Roy murder case, Detective McCombie (the "1968 McCombie report").
[3] In that report, Detective McCombie confirmed Mr. Phillion's alibi that he had stopped at a service station in Trenton, Ontario at a time that would have precluded him from getting to Ottawa in time to commit the murder. Based on that alibi, [page292] the report concluded with Detective McCombie's opinion that Phillion could not have committed the murder. Not included in the report was the fact that the detective claimed that he subsequently discredited the alibi by visiting Trenton and speaking with the mechanic.
[4] In 2003, with the help of the Innocence Project, Mr. Phillion filed an application with the federal Minister of Justice for a review of his conviction under s. 696.1 of the Criminal Code, R.S.C. 1985, c. C-46. Following that application, Mr. Phillion was released on bail. Eventually, the minister ordered a reference to this court: see R. v. Phillion, [2009] O.J. No. 849, 2009 ONCA 202, 241 C.C.C. (3d) 193.
[5] For the majority, Moldaver J.A. concluded that based on the Crown disclosure obligations that existed at the time of the trial, which did not require disclosure of a discredited alibi, Mr. Phillion's trial had not been unfair. But, on the reference, the 1968 McCombie report was admitted as fresh evidence that could have affected the outcome of the trial. Based on that fresh evidence, Mr. Phillion's conviction was quashed and a new trial was ordered.
[6] The Crown determined that it could not proceed with a new trial because of the effects of the passage of time on the availability of witnesses and memories, and instead advised that it would be withdrawing the charge. Mr. Phillion then brought a s. 24(1) Canadian Charter of Rights and Freedoms application for an order that he be re-arraigned so that he could plead not guilty and have the opportunity to be acquitted.
[7] That application was dismissed by Ratushny J. on March 18, 2010: R. v. Phillion, [2010] O.J. No. 2602, 2010 ONSC 1604, 256 C.C.C. (3d) 63 (S.C.J.). She found that the trial had been unfair because possibly exculpatory evidence had been kept from the defence,1 but that the decision to withdraw the charge after the order for a new trial was within the prosecutorial discretion of the Crown and not reviewable. The murder charge was then withdrawn by the Crown on April 29, 2010.
[8] The present appeal relates to a civil action that Mr. Phillion commenced in April 2012, which seeks damages for the alleged negligence and wrongdoing of the Crown and police [page293] in relation to his murder conviction. Mr. Phillion claims that but for this negligence or deliberate wrongdoing in failing to disclose the potentially exculpatory evidence, he would not have been convicted; alternatively, his wrongful conviction would have been discovered and quashed sooner.
[9] The respondents moved to have the action either dismissed as an abuse of process on the basis that the issues raised in the claim had already been determined by this court on the reference, or to have the action permanently stayed because it is now impossible for the action to be reasonably tried. The motion judge dismissed Mr. Phillion's action, finding (1) that it was an abuse of process; and (2) that if it was not an abuse of process, it should be stayed under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[10] In my view, the trial judge erred by dismissing the action for abuse of process and by ordering a stay. For the reasons that follow, I would allow the appeal.
Decision of the Court of Appeal on the Reference
[11] As this court's findings on the reference were central to determining whether Mr. Phillion's civil action was an abuse of process or whether it was appropriate to grant a permanent stay, it is necessary to review those findings in some detail.
[12] The minister referred two questions to the Court of Appeal on the reference. The first question related to the effect of the discovery of the 1968 McCombie report and prior statements of witnesses that were not in evidence at the trial. That reference question provided in relevant part:
Having regard to the accompanying record filed with this Reference and such further material and evidence as this Honourable Court sees fit to receive,
- In the circumstances of this case, would the new information concerning the non-disclosure of Mr. Phillion's alibi which is described in police reports authored by Detective McCombie, and the non-disclosure of the statements of Mr. and Mrs. Barbe and Mr. Loyer, be admissible on appeal to the Court of Appeal?
If this Honourable Court concludes that the non-disclosure referred to in paragraph 1 would be admissible in the court of appeal . . . , I do hereby respectfully refer to this Honourable Court, pursuant to paragraph 696.3(3)(a)(ii) of the Criminal Code, based on a consideration of the existing record herein, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Romeo Pillion. [page294]
[13] For the purposes of the reference, the court reviewed the documentary record and also heard oral evidence from key players in the trial process, including Detective McCombie, other detectives, Crown Attorney Lindsay, and defence counsel, Mr. Cogan. Detective McCombie testified that he believed that subsequent to his 1968 report, he went to Trenton. While there, he spoke to the service station attendant and brought back with him the radio that Mr. Phillion left there as well as records showing that the timing of Mr. Phillion's trip to Trenton would have allowed him to get back to Ottawa in time to commit the murder. In other words, he had discredited the Trenton alibi. Unfortunately, no record existed of any subsequent report to that effect, nor did any of the material the detective recalled bringing from Trenton still exist.
[14] Mr. Lindsay testified that he could not remember any specifics, but that based on his practice, he thought he would have disclosed the discredited alibi to the defence. However, Mr. Cogan testified that he did not know at the time about the 1968 McCombie report or any other steps the police took in relation to the Trenton alibi.
[15] The record before the court showed that at the preliminary inquiry, Mr. Cogan had asked Detective McCombie some open-ended questions about the investigation and was told that there was nothing more. Moldaver J.A. characterized the detective's answers as "less than forthcoming" and "hardly enlightening". As a result, Moldaver J.A. identified a number of now-unanswerable questions that caused him concern, and which he acknowledged were disturbing features of the documentary record.
[16] Moldaver J.A. approached the analysis of whether the new information would be admissible on the appeal in two stages. The first stage was to determine whether the new evidence was admissible on appeal on the basis that the Crown's failure to disclose the 1968 McCombie report at the time of the trial created an unfair trial causing a miscarriage of justice. To determine whether the non-disclosure resulted in an unfair trial, the appellant was required to show that he was entitled to that evidence at the time of the trial: R. v. Truscott, [2007] O.J. No. 3221, 2007 ONCA 575, 225 C.C.C. (3d) 321.
[17] To answer that question, Moldaver J.A. discussed and answered three sub-issues. The first was whether the Trenton alibi had been discredited. If it had not, then the Crown had an obligation to disclose it. The Crown position was that the alibi had been discredited by Detective McCombie before trial. The Crown therefore argued that it did not have to be disclosed to the defence according to Crown disclosure obligations at the [page295] time of the trial. Because Mr. Phillion had the onus to prove that his trial was unfair, he had to prove on a balance of probabilities that the Trenton alibi had not been discredited and should have been disclosed to him by the Crown.
[18] However, the court found that based on all the evidence before it, "the evidentiary scales [were] evenly balanced"; the court could not decide one way or the other whether the alibi had been discredited by the police. Therefore, Mr. Phillion had not met his onus of proof on that issue.
[19] The second sub-issue was whether the defence knew about the discredited alibi and chose not to put the alibi issue before the jury. If so, there was no unfairness. On that point, the court was fully satisfied that defence counsel did not know about the 1968 McCombie report or anything about the steps the police had taken in relation to the Trenton alibi. Having tried to probe the issue both at the preliminary inquiry and at trial without success, defence counsel eventually agreed not to contest the Crown's assertion that Mr. Phillion was in Ottawa at the time of the murder. In concluding on this point, Moldaver J.A. commented that had defence counsel had the 1968 McCombie report at the trial, it would have been "gold in [his] hands".
[20] The third sub-issue was whether, in 1972, the Crown had a duty to disclose a discredited alibi. The court concluded that although that duty exists now, the Crown did not have that legal duty in a criminal case in 1972. The Crown's failure to disclose the discredited alibi therefore did not create an unfair trial under the standards that existed at that time. As there was no trial unfairness based on the Crown's failure to disclose the discredited alibi, the newly discovered evidence could not be admitted on appeal on that basis.
[21] The court then turned to the second stage of the admissibility analysis, which was whether the newly discovered evidence should be admitted on appeal based on the Palmer test for the admission of fresh evidence: see R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126. Moldaver J.A. concluded that the newly discovered evidence met the three Palmer criteria as set out in Truscott, at para. 92, for the admission of fresh evidence on an appeal: the evidence was admissible; it was cogent, that is, it could have affected the outcome of the trial; and it could not have been discovered with more due diligence on the part of the defence.
[22] Once the court admitted the evidence based on the Palmer test, and having found that the evidence could reasonably have affected the outcome of Mr. Phillion's trial, the remedy was to set aside the verdict and order a new trial. [page296]
[23] In summary, the court took two separate approaches to the reference question to decide whether the newly discovered evidence should be admitted on the appeal and the remedy if it was admitted. Applying the first approach, the court found there was no unfair trial according to 1972 standards of prosecutorial conduct. However, using the Palmer test, the verdict could not stand because cogent evidence that existed at the time could have affected the outcome of the trial but was not put before the jury.
Decision of the Motion Judge
[24] The appellant commenced his civil action in April 2012, claiming damages against the Attorney General for Ontario, two of the police officers involved in his trial and the Ottawa Police Service. The appellant's claims are in tort, framed in conspiracy, fraudulent and negligent misrepresentation, malicious prosecution, negligence and misfeasance in public office. He also alleges breaches of ss. 7 and 11(d) of the Charter.
[25] The respondents moved for an order dismissing the action as an abuse of process under rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or permanently staying the action under s. 106 of the Courts of Justice Act. Both remedies were based on the position that the appellant was seeking to relitigate the same issues that had already been determined on the reference, and that the evidence would effectively be limited to the evidence that was heard on the reference.
[26] The motion judge viewed [at para. 7] the appellant's claims as premised on "his position that he had an alibi that the police had verified but failed to disclose". She concluded that the civil action amounted to an abuse of process because it constituted [at para. 18] "an attempt to relitigate issues that were before the Court of Appeal"; it was "an implicit attack on the correctness of the factual basis of the decision"; and it "would risk undermining the integrity of the judicial system".
[27] Specifically, the motion judge concluded that the Court of Appeal found as a fact that (1) there had been no wrongdoing by the Crown, and (2) Mr. Phillion could not prove on a balance of probabilities that the Trenton alibi had not been discredited. She also concluded that these two findings were "inconsistent with liability in this civil action". In particular, the appellant would not be able to prove negligence or any other wrongful act on the part of the respondents unless he could show that the Trenton alibi had not been discredited, and that issue had already been decided by the Court of Appeal on the reference. She therefore dismissed the action as an abuse of process. [page297]
[28] The motion judge also found that the action should be permanently stayed on the same grounds of relitigation as well as on the grounds that a fair trial could not now be held because of the effects of the passage of time on the availability of witnesses and their memories. She saw little prejudice to the appellant because of his inability to establish essential components of his claim, and great prejudice to the respondents in their inability to lead evidence to refute the appellant's allegations.
Analysis
(1) Abuse of process
[29] The leading case on the doctrine of abuse of process is the Supreme Court of Canada's decision in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63. Arbour J. explained, at paras. 35-37, that this doctrine represents the inherent and residual discretion to "prevent an abuse of the court's process" when other doctrines such as issue estoppel may not be available. At para. 35, she adopted the words of McLachlin J. (as she then was) in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, at p. 1007 S.C.R., as follows:
[A]buse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.
[30] As it relates to this case, the doctrine has been applied to prevent relitigation when the requirements of issue estoppel cannot be met (as is the case here, because the parties to the two proceedings are not the same), but when "allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice": C.U.P.E., at para. 37. The court emphasized that the focus of the doctrine of abuse of process is less on the parties and more on "the integrity of judicial decision making as a branch of the administration of justice": C.U.P.E., at para. 43.
[31] In R. v. Mahalingan, [2008] 3 S.C.R. 316, [2008] S.C.J. No. 64, 2008 SCC 63, at para. 42, McLachlin C.J.C. expressed the view that the doctrine of abuse of process is vague and variable, pointing out that the Supreme Court has said that "successful reliance on the doctrine will be extremely rare". Importantly for this appeal, she stated further, at para. 42, that, [page298]
To date, the doctrine has not been much used to protect against relitigation, and indeed there is authority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse of process.
(Citation omitted)
[32] With respect to the motion judge, in finding that abuse of process should be applied in this case, in my view she fell into error in two respects. First, she failed to analyze the nature and purpose of the reference, including the specific question the court was asked to answer, in comparison with the issues raised in the civil claims. In that context, she erred in concluding that the issue whether the Trenton alibi had been discredited was a roadblock to the civil claim, and in taking an overly broad view of the findings of fact that she believed were made by the Court of Appeal on the reference.
[33] Second, in holding that on the reference the court made findings of fact that could not be revisited, she did not consider the effect of the remedy that the reference court ordered, which was a new criminal trial. At the new trial, all issues would have been open for decision by a jury, including, most importantly, whether the Trenton alibi had been discredited.
[34] Dealing with the first error, the statement of claim is broadly drafted. It seeks compensation in tort for the appellant's conviction because information about an alibi was withheld from the defence. The court on the reference found that if the jury had been told about the Trenton alibi and about Detective McCombie's evidence of how he discredited it, including the fact that the documentation and the car radio he took from Trenton had been lost by the time of the trial, they may have had a reasonable doubt about the appellant's guilt.
[35] Accepting that at the time, the Crown did not have a positive obligation to disclose a discredited alibi, the police and Crown could arguably still be found liable to the appellant in tort. For example, had the detective not given misleading answers at the preliminary hearing about the extent of his investigation -- answers that the Crown did not correct -- the defence may well have learned about his 1968 report and his assertion that he later changed his view. Defence counsel would then have been able to explore the issue with the jury. As Moldaver J.A. stated, that information would have been "gold" in defence counsel's hands.
[36] Another aspect of the claim not discussed on the reference was whether there is any liability on the respondents for the extra time the appellant spent in custody after the Stinchcombe decision, when the appellant was continuing to ask to see the [page299] full Crown brief but received only a redacted version. Part of his damages claim is for the extra time spent in custody as a result of that delay.
[37] The motion judge addressed this issue by saying that implicit in the court's finding that the Crown had no duty to disclose at the time of the trial was the corollary that it also had no duty to later correct the non-disclosure. However, this was a unique circumstance in which the appellant was continually asking for disclosure after the trial. The Court of Appeal on the reference neither considered nor commented on whether the Crown or police owed a common law duty, following Stinchcombe, to disclose the full Crown brief when it was requested by a convicted person. In my view, it cannot be an abuse of process to seek to litigate that claim.
[38] These are two examples of claims that do not depend on setting aside any conclusion reached by the Court of Appeal on the reference. I do not propose in these reasons to parse the claims pleaded in the statement of claim, as the reasons for decision treated the matter as an all-or-nothing motion to strike the entire claim for abuse of process. Whether each of the particular claims will necessarily go to trial need not be decided on this appeal.
[39] I now turn to the second error the motion judge made in concluding that it would be an abuse of process for the appellant to pursue a civil action for wrongdoing against the state authorities. She came to this conclusion based on her view that all of the issues had already been determined by the Court of Appeal on the reference. In particular, the motion judge emphasized that the court found no wrongdoing on the part of the authorities.
[40] However, that finding was made only for the purpose of deciding whether the newly discovered evidence could be admitted on appeal based on trial unfairness. The court did not consider whether the respondents breached any common law duty of care or whether they owed any such duty to the appellant.
[41] Most importantly, the Court of Appeal admitted the evidence on other grounds and then ordered a new trial. The court placed no restrictions on the conduct of that trial or on the issues that could be raised. Clearly, had the trial proceeded, the defence would have raised the alibi and the fact that Detective McCombie had concluded in 1968 that the appellant was not the murderer. The Crown would have led the evidence of how the alibi was discredited. It would have been open to the jury to accept, reject or have a reasonable doubt about the key issue that the Court of Appeal could not decide: whether the Trenton [page300] alibi had been discredited. If the jury did not believe that the alibi had been discredited by Detective McCombie, then the finding by the Court of Appeal that there was no duty on the Crown to disclose would itself be implicitly discredited.
[42] Without seeking to set out a general rule applicable to all references, the nature of the reference in this particular case was such that the findings of the court could not have been intended to bind a future hearing if a new trial was ordered.
[43] It follows that the same conclusion applies with respect to a civil action. It is also consistent with the fairness analysis recently adopted by the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19.
[44] In that case, Cromwell and Karakatsanis JJ. discuss two ways in which the operation of the doctrine of issue estoppel can be unfair to a party. The first is when the original proceeding was unfair. The second occurs when it is unfair to use the results of a prior proceeding to bar a subsequent proceeding. They note that fairness in this context is a much more nuanced inquiry. As an example, injustice can arise when "there is a significant difference between the purposes, process or stakes involved in the two proceedings": Penner, at para. 42. In my view, a similar analysis applies here in the related context of abuse of process: see, also, the discussion in C.U.P.E., at para. 53.
[45] The reference was a unique proceeding initiated by the Minister of Justice for the purpose of inquiring into a possible wrongful conviction. Mr. Phillion had the onus of proof to either show trial unfairness or meet the Palmer test in order to have the newly discovered evidence admitted. However, to do that, he did not need to prove anything about the police or Crown motive or intent behind their failure to disclose. His focus was on satisfying the court that his conviction had to be set aside.
[46] The motion judge acknowledged that at the reference, Mr. Phillion did not impugn the integrity of Mr. Lindsay or Detective McCombie, but she stated that the court would nevertheless have had to find improper conduct on their part in order to agree with Mr. Phillion that they should have disclosed the 1968 McCombie report. She reasoned that the court implicitly found that the respondents did not act out of malice. Therefore, she held that although the appellant did not raise that issue on the reference, because of the court's implicit finding, he is now precluded from raising their intent in a subsequent civil action.
[47] Contrary to the motion judge's finding, in my view, the specific purpose of the reference and the questions it addressed [page301] indicate that the stakes, purpose and process were entirely different from this civil action. It would therefore be unfair to preclude the appellant from bringing a civil action on the basis that he is bound by an implicit finding made on the reference that there was no malice.
[48] Finally, and in any event, the findings made on the reference with respect to the conduct of the Crown and police did not consider any issues of negligence or a common law duty of care, as alleged in the statement of claim.
Conclusion on abuse of process
[49] In my view, the order dismissing the action as an abuse of process must be set aside. Such orders are only to be granted in the clearest cases and only when allowing the action to proceed would bring the administration of justice into disrepute. The motion judge erred in law in concluding that this was a case of relitigation and that it justified the application of the doctrine of abuse of process.
(2) Stay of proceedings
[50] The motion judge exercised her discretion to grant the stay based on a number of grounds, recognizing that the balance of convenience must weigh significantly in favour of doing so. In addition, she noted that a stay is to be granted rarely and only in the clearest cases.
[51] The first ground relied on by the motion judge was the passage of 40 years since the police investigated the Trenton alibi. Consequently, memories have faded and witnesses have died. She referred to the fact that Mr. Phillion's position on the reference was that a re-trial was not possible for those very reasons. Of course, that submission supported his request for an acquittal as the remedy he was asking for on the reference.
[52] However, the Court of Appeal on the reference could not acquit the appellant based on the record, and therefore ordered a new trial in the face of the problems created by the passage of time.
[53] I do not agree with the motion judge that the passage of time indicates that a stay is appropriate. The fact that so much time has passed is no fault of the appellant's. Whether wrongfully or not, it was the respondents who had the knowledge of the information that led to the reference, to the setting aside of the verdict and to the eventual withdrawal of the charge. To in effect punish the appellant for the passage of time in these circumstances by staying his action strikes me as manifestly unfair. Finally, no one has suggested that the action was [page302] commenced outside the limitation period -- another factor that speaks against a stay based on the passage of time.
[54] Second, the motion judge took into account, as a factor in favour of granting a stay, the appellant's contrary positions on the reference and in his civil action with respect to two issues: (1) whether the passage of time meant no proper trial could now be held, and (2) whether he was impugning the conduct of the respondents. In my view, the motion judge erred in so doing in the circumstances of this case. On the issue of the effect of the passage of time, once the Court of Appeal effectively rejected the appellant's position, he was entitled to change that position going forward. On the issue of impugning the integrity of the respondents, as discussed above, that was not an issue that the appellant had to prove on the reference. Now, in the civil case, he does.
[55] The third factor the motion judge relied on was the prejudice to Mr. Lindsay (not a named party to the civil case) and to Detective McCombie in having to defend against the appellant's allegations of collusion, which the motion judge described as "scandalous". I agree that prejudice to the respondents and other named actors is a factor to be weighed. However, in this case, it cannot be said that the balance tips heavily in favour of a stay.
[56] To the contrary, in my view, it would further bring the administration of justice into disrepute to grant a stay in these circumstances and deprive the appellant of any opportunity to seek financial redress for his conviction, when he did not have the opportunity to present a full defence at his trial.
Conclusion
[57] I would allow the appeal on both grounds and set aside the orders. The appellant and the Crown advised the court that neither sought costs against the other. The appellant shall have 50 per cent of his costs against the other respondents fixed in the amount of $15,000, inclusive of disbursements and HST.
Appeal allowed.
Notes
1 The finding by the Court of Appeal on the reference that the appellant's trial was not unfair was made for the purpose of the Truscott test (see explanation at para. 16, below) based on the Crown's disclosure obligations at the time. I do not understand Ratushny J. to be contradicting that finding but only saying that because of the fact of the non-disclosure, the result was unfair.
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