COURT FILE NO.: 84/03

DATE: 20060524

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, JENNINGS AND WILSON JJ.

B E T W E E N:

LOUISE REYNOLDS

Plaintiff/Respondent

• and -

THE CITY OF KINGSTON POLICE SERVICES BOARD, BRIAN BEGBIE, ANDREW BIRD, HARLEY KELLER, BILL KENNEDY, CHRIS BARRETT, THOMAS GOODFELLOW, DR. CHARLES SMITH

and DR. ROBERT WOOD

Defendants/Appellant

W. Niels Ortved and J.A. Langford, for the Appellant/Defendant, Dr. Charles Smith

Peter Wardle and Daniel Burnstein, for the Respondent/Plaintiff

HEARD at Toronto: January 25 & 26, 2006

O’DRISCOLL J.:

I. Nature of the Proceedings

[1] The Appellant/Defendant/Dr. Charles Smith:

(a) appeals to this Court from the December 10, 2002 order of Coo J. refusing Dr. Smith’s motion to strike the Plaintiff’s claim against him under rule 21.01(1)(b) “on the ground that it shows no reasonable cause of action against him”. Rule 21.01(2)(b) provides that “no evidence is admissible on a motion under clause 1(b)” and thus the facts, as pleaded in the Amended Amended Statement of Claim, are taken to be true for the purposes of this motion.

(b) appeals the August 29, 2005 order of Master Egan granting the Plaintiff’s motion for leave under rule 26 to amend her “Amended Statement of Claim”. The appeal was transferred to the Divisional Court from the Superior Court of Justice pursuant to the October 31, 2005 order of Greer J., made on consent, under s. 19(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (CJA).

[2] The Divisional Court’s jurisdiction to hear the appeal from Coo J. flows from the leave to appeal granted by Ground J. on April 7, 2003 under s. 19(1)(b) of the CJA and rule 62.02(4) of the Rules of Civil Procedure.

[3] In his endorsement of December 10, 2002, Coo J. said, in part:

[7] …In effect it was conceded that if that rule [witness immunity rule] is applicable, the claim cannot succeed.

[4] In my view, in the circumstances of this case, Dr. Smith has proved that he has “witness immunity” or “absolute privilege” and the appeals should be allowed, the orders of Coo J. and Master Egan should be set aside and the action dismissed against Dr. Smith under the provisions of rule 21.01(1)(b) of the Rules of Civil Procedure.

II. Background and Chronology

[5] Counsel for Dr. Smith, for the purposes of this appeal, accepts, the following facts alleged in the Amended Amended Statement of Claim (AASC) [Appeal Book and Compendium: pp. 177-203]:

(a) On the evening of June 12, 1997, the Kingston Police received a call with a report that a seven (7) year old girl, Sharon, was missing. The Plaintiff was Sharon’s mother. Police officers attended the Plaintiff’s residence in the City of Kingston and following a search of the Plaintiff’s residence, the place where Sharon lived, found Sharon’s dead body in a dark corner of the basement of the residence. “Sharon had been savagely attacked in the area of her head and upper body. There was a great deal of blood”. [AASC: paras. 2, 3, 20, 22 & 23].

(b) The Kingston Police secured the scene and returned early the next morning, June 13, 1997, with the coroner. At that time, a large quantity of blood was observed on the floor around Sharon’s body. Large quantities of blood were observed on a pile of clothing on which her body was lying. Sharon had been “scalped” and a portion of her hair and skin was lying on the basement floor about one (1) metre from her body.

(c) “Police also observed a significant amount of old and new dog excrement in the basement”. [AASC: para. 24]

(d) Between June 13, 1997 and June 22, 1997, the Kingston Police interviewed a number of people, including the Plaintiff, who might have knowledge of the events leading to Sharon’s death. [AASC: paras. 26 and 27]

(e) On June 13, 1997, Dr. Charles Smith, a Defendant, a pediatric pathologist at the Hospital for Sick Children in Toronto, pursuant to a warrant under the Coroners Act, R.S.O. 1990, c. C. 37, served on him that day, as a forensic pathologist, commenced a post-mortem examination on the body of Sharon for the purpose of determining the cause of death. The post-mortem examination was completed on June 15, 1997.

(f) Following his post-mortem examination, Dr. Smith gave an oral report to the Kingston Police that Sharon’s death was caused by blood loss from multiple stab wounds. [AASC: paras. 17 and 29]

(g) On June 26, 1997, the Plaintiff was arrested and charged with the second degree murder of Sharon, contrary to s. 235(1) of the Criminal Code of Canada. [AASC: para. 34]

(h) The March 8, 1998 written post-mortem report of Dr. Smith, prepared as required by the Coroners Act, states that, in his opinion, Sharon’s death was caused by multiple stab wounds. [AASC: para. 53]

(i) On April 27 and 28, 1998, Dr. Smith, having been subpoenaed by Crown counsel, testified at the Plaintiff’s preliminary inquiry on the charge of second degree murder. At that hearing, Dr. Smith testified that, in his opinion, death was caused by loss of blood (exsanguination) resulting from more that eighty (80) stab wounds to Sharon’s body, wounds caused by a knife or a pair of scissors. Dr. Smith testified that, in his opinion, the wounds were not caused by dog bites. [AASC: para. 54]

(j) Subsequently, at the request of the Plaintiff’s counsel on the charge of murder, and on the recommendation of the Deputy Chief Coroner for Ontario and the Chief Forensic Pathologist for Ontario, Crown counsel applied and obtained an order for the exhumation of Sharon’s body. A second post-mortem examination on Sharon’s body was performed by Dr. Smith and others: “The second autopsy concluded that a dog was responsible for at least some of the injuries sustained by Sharon”. [AASC: para. 58]

(k) Prior to the Plaintiff’s arrest on June 26, 1997, the Kingston Police learned that Sharon’s father, Gary Lee, owned a Staffordshire pit bull terrier dog named Hat Trick. That dog was said to have been at the Plaintiff’s residence on June 12, 1997.

(l) On January 25, 2001, Crown counsel elected to withdraw the charge of second degree murder against the Plaintiff.

(m) On February 8, 2001, the Plaintiff commenced this action alleging that Dr. Charles Smith:

(i) negligently performed the June 15, 1997 post-mortem examination on Sharon

(ii) “expressed a negligent opinion” as to the cause of Sharon’s death when he testified at the preliminary inquiry.

(n) On August 14, 2002, counsel for Dr. Smith served a Notice of Motion to strike out the Plaintiff’s claim as disclosing no cause of action (rule 21.01(1)(b)).

(o) On December 6, 2002, Coo J. heard the motion brought by counsel for Dr. Smith under rule 21.01(1)(b). Coo J. dismissed the motion on December 10, 2002.

(p) In his endorsement dismissing Dr. Smith’s motion under rule 21.01(1)(b), Coo J. said, in part:

[7] ….The plaintiff’s position is that it has not been finally determined, at least in this province, that the principle [witness immunity] applies to criminal proceedings. In this regard, reliance is placed in comments in such decisions as Starkman v. Canada (Attorney General), [2002] O.J. No. 3764, Dooley v. C.N. Weber Ltd. (1994), 1994 7300 (ON SC), 19 O.R. (3d) 779, and Kansa General International Insurance Co. (Canadian Branch) v. Morden & Helwig Ltd., 2001 28077 (ON SC), [2001] O.J. No. 4604.

[16] I have concluded that it is not plain and obvious that the plaintiff’s claim is doomed to failure as it has been cast in this action. While I recognize at once that no binding authority rests in the triumvirate of the cases of Starkman, Dooley and Kansa General International Insurance Co., there has been at least some judicial consideration of one of the major problems before me. It is my view that no more should be said by me at this juncture, since authoritative analysis is of no great value on an unsuccessful rule 21 motion. Suffice it to say that I am not prepared to dismiss out of hand the arguments on which continuation of the plaintiff’s claims against Smith rest. I do not accept that in the very special circumstances of this case, the bad faith pleading is without sufficient particularity.

(q) On March 14, 2003, Ground J. heard an application for leave to appeal to the Divisional Court under s. 19(1)(b) of the CJA and rule 62.02(4) of the Rules of Civil Procedure. On April 7, 2003, Ground J. granted leave to appeal to the Divisional Court from the decision of Coo J., dated December 10, 2002.

III. Observations on the state of the Record

[6] A copy of Dr. Smith’s nine (9) page post-mortem report, dated March 8, 1998, covering the first post-mortem examination conducted on June 13 and 15, 1997, was filed at p. 106 to p. 114 of the Appeal Book and Compendium.

[7] Mention is made of a second post-mortem in the AASC at para. 57 and para. 58. However, no written report covering the second post-mortem was filed on this appeal.

[8] Save for para. [3] of the AASC, there is no allegation in the AASC that the cause of death was anything other than “multiple stab wounds”. There is no allegation in the AASC that dog bites caused Sharon’s death.

[9] On this record, there is no allegation that Dr. Smith and the Plaintiff were anything but strangers. Dr. Smith had no duty of care to the Plaintiff. There is no allegation that Dr. Smith did any “investigation” other than to ascertain the cause of Sharon’s death. He did this by performing the post-mortem, as commanded by the Coroner’s warrant served on him. Dr. Smith prepared the post-mortem report as required by the Coroners Act.

[10] In this case, there is no allegation of malicious prosecution against Dr. Smith, nor could there be because Dr. Smith did not initiate the charge of murder against the Plaintiff. There is no allegation that Dr. Smith was attempting to “frame” the Plaintiff. There is no allegation that Dr. Smith gave perjured evidence at the preliminary inquiry on April 27-28, 1998 when he was subpoenaed to give testimony as a Crown witness as to the cause of Sharon’s death.

IV. The Witness Immunity Rule (“the rule”)

A. Its origins and applications

[11] In R. v. Skinner (1772), Lofft. 54, 56, Lord Mansfield said:

What Mr. Lucas has said is very just; neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office.

In Royal Aquarium & Summer & Winter Garden Society v. Parkinson, [1892] 1 Q.B. 431, 451, Lopes L.J. said:

The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office: that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognized by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed. This “absolute privilege” has been conceded on the grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them.

[12] The same principle is reiterated in: Watson v. M’Ewan, [1905] A.C. 480, 486-9 (H.L.) per Earl of Halsbury, L.C. and Samuel Manu-Tech Inc. v. Redipac Recycling Corporation (1999), 1999 3776 (ON CA), 124 O.A.C. 125, 129-130 (Ont. C.A.).

B. Policy reasons for the rule

[13] In Munster v. Lamb (1883), 11 Q.B.D. 588, 607 (C.A.), Fry L.J. said:

Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another? The rule of law exists not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty.

In Marrinan v. Vibart and Another, [1963] 1 Q.B. 234, 237, Salmon J. said:

This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation.

In Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, [2005] N.S.J. No. 323 (N.S.C.A.), in giving the unanimous judgment of the court, Cromwell J.A. said:

[115] The core of witness immunity is well established by authority. A witness has immunity in respect of what he or she says and does in court or in testimony before a quasi-judicial proceeding: Darker v. Chief Constable of West Midlands Police, [2000] H.L.J. No. 44, [2001] 1 A.C. 435 (H.L. (E.)) at 463. The immunity also extends to a statement made by a witness if the statement is as to the nature of the evidence the witness can give and it is made to a professional person preparing the evidence to be presented in court: Watson v. McEwan [supra]; Halls v. Mitchell [1928 1 (SCC), [1928] S.C.R. 125].

[116] The absolute immunity of witnesses exists because it is necessary to protect the proper functioning of the administration of justice. “Strict necessity” said Duff, J. in Halls, “is the basis of the privilege”: at 145. Or, as The Lord Chancellor said in Watson v. McEwan, taking proceedings in court and compelling witnesses to attend are necessary for the administration of justice and as a result witnesses must be protected from actions in respect of their evidence: at 487. Thus, the core of the immunity protects giving testimony in court – of things said and done on that ‘occasion’. Extensions beyond that ‘occasion’ are made when necessary in order to make the immunity for testimony effective.

[117] The immunity, of course, does not exist to protect wrongdoers, but it will sometimes do so. For the immunity to be effective, witnesses must be protected from all law suits, not only unmeritorious ones. This protection of witnesses from the risk of suit is seen as more important than righting a wrong in a particular case. Moreover, to achieve its objective, the immunity must be clear: People must know in advance whether they are protected or not: Darker v. Chief Constable of West Midlands Police and Brown, para. 12.4(4)(e). The immunity, therefore, is a blunt instrument, barring all claims in the interests of the broader administration of justice.

[118] The absolute immunity of witnesses, therefore, negates the usual rules of civil liability. But such a sweeping exemption from liability is only justified when demonstrably necessary to achieve important objectives: Brown, page 9-5. As has been said, “…the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’”: Taylor v. Director of the Serious Fraud Office, [1998] H.L.J. No. 38, [1999] 2 A.C. 177 (H.L. (Eng.)) at 214 per Lord Hoffman quoting with approval the High Court of Australia in Mann v. O’Neill (1997), 71 A.L.J.R. 903 at 907. Thus, the test for the extension beyond the well-settled core of the immunity is a strict one: Necessity must be shown. Consistent with the usual rules about the burden of proof, the burden of proving a defence based on immunity is on the defendant: Brown at section 12.4(7).

[119] Two main policy considerations support the necessity of witness immunity. First, it is critical that witnesses be willing to tell the whole truth as they see it, free of concern about consequences to themselves. The need for both candour and cooperation means that witnesses should be protected from civil liability and the risk of vexatious litigation in relation to their testimony. The rigours of cross-examination and the risk of prosecution for perjury are seen as sufficient checks on the untruthful witness. Second, the immunity protects the substance of the evidence from collateral attack in other proceedings. As Lord Wilberforce put it in Roy v. Prior, [1971] A.C. 470 (H.L. (Eng.)) at 480, the immunity exists “…to avoid a multiplicity of actions in which the value or truth of [the witness’] evidence would be tried over again.” See also Carnahan v. Coates, supra at 475-476. [(1990), 1990 2299 (BC SC), 71 D.L.R. (4th) 464 (B.C.S.C.)].

C. Does the rule apply in criminal cases?

[14] The quote from Lord Mansfield in R. v. Skinner (supra) says “civilly or criminally”.

[15] In Samuel Manu-Tech (supra), the Court of Appeal for Ontario said:

[20] The immunity extends to any action, however framed, and is not limited to actions for defamation: See the judgment of Lord Goddard, C.J., in Hargreaves v. Bretherton, [1958] 3 All E.R. 122 (Q.B.D.) In that case the plaintiff was convicted of an offence as a result of the defendant’s alleged perjury. Lord Goddard reviewed many authorities and stated at p. 123:

“the simple point that I have to decide is whether or not an action lies at the suit of the person who says that he has been damnified by the person who has given false evidence against him. In my opinion it is clear beyond peradventure nowadays that such an action will not lie.”

[16] In his endorsement, Coo J. stated:

[7] …The plaintiff’s position is that it has not been finally determined, at least in this province, that the principle applies to criminal proceedings. In this regard, reliance is placed in comments in such decisions as Starkman v. Canada (Attorney General), [2002] O.J. No. 3764, Dooley v. C.N. Weber Ltd. (1994), 1994 7300 (ON SC), 19 O.R. (3d) 779, and Kansa General International Insurance Co. (Canadian Branch) v. Morden & Helwig Ltd., 2001 28077 (ON SC), [2001] O.J. No. 4604.

[8] It is acknowledged that the authorities in England support the application of the rule to protect a witness who has been involved in a criminal case. Watson v. M’Ewan, [1905] A.C. 480. Royal Aquarium & Summer & Winter Garden Society v. Parkinson, [1892] 1 Q.B. 431, Surzur Overseas Ltd. v. Koros et al., [1999] 2 Lloyd’s L.R. 611 and Evans v. London Hospital Medical College, [1981] 1 All E.R. 715, are just four broadly-stated examples of that. Reference was also made to British Columbia decisions, including Kravit v. Dilli, [1998] B.J.C. No. 1479, in support of the defendant’s position. There are a number of Ontario decisions that deal with the witness immunity rule, in the context of civil litigation, in very broad and seemingly all-encompassing terms. Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 3776 (ON CA), 124 O.A.C. 125, is one example.

[17] With respect, Starkman, Dooley and Kansa do not cast doubt on the applicability of the witness immunity rule in criminal cases. If and insofar as they may do so, they are in conflict with Samuel Manu-Tech (supra) where the Court said at para. [20]: “The immunity extends to any action however framed…”.

[18] In my view, the witness immunity rule applies to this action.

D. What is the width and the breadth of the witness rule?

[19] In Elliott, Cromwell J.A., conducted an extensive review of the Canadian and United Kingdom cases dealing with the witness immunity rule.

[20] In the Elliott case, the Elliotts’ home was destroyed by fire. The insurer refused to pay, alleging arson. F.J. Savage, a deputy fire marshall prepared a report at the request of the local deputy fire chief and testified at the insurance action trial giving his opinion as to the cause and origin of the fire. The trial judge at the insurance action held that the insurer had not proved arson and allowed the contract claim on the policy. The Elliotts then sued Savage and investigators of the insurer and alleged that the investigation had failed to exercise proper care in investigating and reporting of the fire.

[21] The Nova Scotia Court of Appeal held that Savage and another, both witnesses at the insurance trial, had immunity in the subsequent negligence action which named them defendants. The gist and essence of the claim against them was their negligent failure to retract or qualify their opinion once presented with evidence to the contrary by the experts of the Elliotts. The Nova Scotia Court of Appeal held that it was necessary to extend immunity to Savage and another defendant.

[22] Cromwell J.A. reviewed Evans v. London Hospital Medical College, [1981] 1 All E.R. 715 (Q.B.) per Drake J. In Evans, a pathologist and two toxicologists carried out a post-mortem on the body of Evans’ infant son. They prepared a report to the police and to the Director of Public Prosecutions stating that morphine was found in the organs of the deceased. They made formal statements which, under certain conditions, would be admissible at trial. Ms. Evans was charged with the murder of her son, allegedly the charge was based on the post-mortem results. Further examinations disclosed that: (1) the organs of the child first examined were contaminated and (2) the other organs of the deceased child were morphine free. At the murder trial, the Crown offered no evidence and Ms. Evans was acquitted. She sued those who had performed the first post-mortem for:

(1) negligence on the initial conclusions and their failure to retract their views when confronted with opposing views,

(2) malicious prosecution.

[23] The trial judge held that witness immunity applied to Mr. Savage and another defendant in the negligence action.

[24] Cromwell J.A. states:

[164] ….The test set out in Evans, therefore, has two key elements. The purpose of the statement must be in relation to preparing evidence and the statement must be made at a time when a proceeding is being considered.

[166] Evans involved a public law duty to investigate crime.

[25] In reviewing Darker v. Chief Constable of the West Midlands, [2001] 1 A.C. 435, 452 (H.L. (E.)), Cromwell J.A. states:

[180] …Lord MacKay summed it up this way: “[t]he essential character of the immunity…limits the application of the immunity to conduct which can be called in question only by a founding on a statement in court or a statement which is part of the preparation of evidence for court proceedings”: at 452.

[26] Cromwell J.A. reviewed a 1985 decision of the Court of Appeal for Ontario dealing with the witness immunity rule and said:

[152] In Fabian v. Marguilies (1985), 1985 2063 (ON CA), 53 O.R. (2d) 380 at 384, (C.A.), the appellant had been the plaintiff in a personal injury action. A psychiatrist had conducted a medical examination of him on behalf of the defendant, had prepared a medical legal report for the defendant’s solicitors and had testified at the trial. After the personal injury action was dismissed, the appellant sued the psychiatrist for defamation. The question arose as to whether the psychiatrist’s medical legal report as well as his testimony were immune from liability.

[153] Labrosse, J. held that they were and his decision was upheld in a brief judgment by the Court of Appeal. There was no serious issue concerning immunity in relation to the testimony in court. With respect to the report, Labrosse, J. held that the medical legal report was required under the relevant rules of evidence before the doctor could testify. It was, therefore, essential to extend the immunity to it in order to give effect to the immunity of witnesses:

10 …In order to be permitted to testify at the trial, the doctor had to prepare a report to be used in accordance with the provisions of s. 52 of the Evidence Act, R.S.O. 1980, c. 145. In my opinion, the examination and the ensuing report were prepared in the ordinary course of judicial proceedings. … The absolute privilege extending to the oral evidence of the doctor would be rendered illusory if he could be sued for the same statements made in a report he is statutorily required to prepare in order to give his oral testimony.

[154] The court in Fabian was persuaded of three things: first, that the preparation of the written report was an essential aspect of giving the oral evidence – the filing of a written report was a statutory pre-condition to the testimony; second, that the extension of the immunity to out-of-court statements was essential to prevent the immunity for in-court statements becoming illusory; and third, that the statements both in and out-of-court were “…the same statements…”.

E. The test of necessity with regard to the rule

[27] Cromwell J.A. in Elliott (supra) states:

[205] How does one assess whether it is necessary to extend witness immunity to cover a particular situation? An important discussion of this question, albeit in the context of the broader immunity for judicial and quasi-judicial proceedings, is found in the English Court of Appeal decision in Lincoln v. Daniel [[1961] 3 All E.R. 740 (C.A.)]. Devlin L.J., in an often cited passage, stated that the absolute privilege which covers proceedings in or before a court of justice may be divided into three categories: the first extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses and includes the content of documents in evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings starting with the writ or other document which institutes the proceedings. The third category, the one most relevant for our purposes, consists of situations in which it is necessary in practical terms to extend the immunity “…in order to protect those who are to participate in the proceedings from a flank attack…”: at 753. He said at 751-2:

I turn now to the third category. It is obvious that unless there were a category of this sort the absolute privilege granted for matters said and done coram judice might be rendered illusory. This is the consideration that animates the reasoning of the EARL OF HALSBURY, L.C., in Watson v. McEwan, …

It is not at all easy to determine the scope and extent of the principle in Watson v. McEwan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of LORD HALSBURY’s speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. (emphasis added)

[206] Lincoln v. Daniels does not provide a bright line test for the point at which the absolute privilege attaches. But it does show that the critical consideration is how closely connected the communication is to a judicial or quasi-judicial proceeding and that this must be assessed in light of the underlying purposes of the immunity. Devlin, L.J.’s reference to the necessity of protecting participants in the judicial proceeding from a “flank attack” refers to both of the immunity’s underlying purposes. Witnesses must be protected from flank attack to encourage candour and cooperation in connection with their evidence and as well to avoid a multiplicity of litigation in which the value of their evidence is tried over again. (See also, Larche v. Middleton (1989), 1989 4404 (ON SC), 69 O.R. (2d) 400 (H.C.) and Gursikh Sabha Canada v. Jauhal (2002), 186 O.A.C. 362; [2002] O.J. No. 2005 (Q.L.), aff’g [2001] O.J. No. 4243 (Q.L.) (Sup. Ct.).)

[207] As noted earlier, witness immunity may apply to a person who does not testify. But whether the person has testified or not influences the necessity analysis. The underlying rationales of the immunity apply differently in the two situations.

[208] Where a person testifies, the necessity analysis must take account of both the underlying rationales for witness immunity. That is, the necessity analysis in such cases must be concerned both with candour and cooperation of potential witnesses and with possible relitigation of the value or truth of the evidence which the witness has given.

[209] When a person does not testify, only the underlying rationale related to candour and cooperation of potential witnesses is implicated. The focus of the necessity analysis, therefore, is on the closeness of the connection between the out-of-court activity and the person’s role as a witness. Is it so close that the preservation of candour and cooperation of potential witnesses requires that the out-of-court occasion have the same protection as testimony? The focus of witness immunity is not the content of the statement, but the occasion on which it is made. The protected occasion is testifying in court. The more closely connected the out-of-court statement or conduct is to that “occasion”, the stronger the case of necessity.

[210] ….Statements made by or to a person discharging a statutory or other public duty to gather evidence for pending or contemplated proceedings will generally be protected: see (X) Minors [[1995] 2 A.C. 633]; Taylor [[1992] 2 A.C. 177], Ayangamn [(2001), 2001 PESCAD 1, 203 D.L.R. (4th) 717] and Evans. The need for candour is clear in those settings and the public duty strengthens the case for protection, particularly where there is a duty to cooperate with the investigation.

[28] In Elliott, Cromwell J.A. concluded that Savage and one other defendant had established the necessity of extending the witness immunity rule to their activities which formed the basis of a negligence claim against them. He states:

[217] …The record indicates that in each case, the initial reports prepared by these respondents in September were placed in evidence at trial and relied on by the witnesses during their oral testimony. The filing of such reports is necessary under our Rules in order for the expert to testify. To my way of thinking, these facts affect the necessity analysis in one significant respect. It provides a factual basis for the submission that it is necessary to preclude the action against these individuals for their out-of-court investigation and reporting because those activities, as events unfolded, became so intermingled with their roles as witnesses that it is impossible to untangle them. That being so, the second rationale for witness immunity is strongly implicated. In effect, the appellants’ negligence action would require reassessment of the worth of the trial testimony of these witnesses in the insurance action because, as events unfolded, it is not now possible to distinguish between a claim for negligent investigation and a claim for negligent testimony. To avoid that relitigation is one of the reasons that the protection is afforded to out-of-court statements and conduct by witnesses.

G. Conclusion

[29] In my view, on the facts admitted for the purpose of this motion, Dr. Smith’s post-mortem examination, his oral communication to the Kingston Police of his opinion of the cause of death, his post-mortem report, Dr. Smith’s testimony at the preliminary inquiry are all inextricably bound together such that it is not possible to distinguish between a claim for negligent investigation and a claim for negligent testimony.

[30] Having been served with a warrant under the Coroners Act, Dr. Smith was required by law to conduct a post-mortem examination on the body of Sharon to ascertain the cause of her death. The Coroners Act also required Dr. Smith to prepare a written post-mortem report. Dr. Smith was required by the provisions of the Criminal Code of Canada to obey the subpoena, attend at Ms. Reynolds’ preliminary inquiry and, under oath or solemn affirmation, answer the questions asked of him. Dr. Smith did all the things required of him by law. His opinion as to the cause of death never changed. There can be no question that Dr. Smith has witness immunity for his oral testimony. To echo Labrosse J. in Fabian v. Marguilies (supra):

The absolute privilege extending to the oral evidence of the doctor would be rendered illusory if he could be sued for the same statements made in a report he is statutorily required to prepare in order to give his oral testimony.

Whatever the cause or causes of Sharon’s death may be does not govern whether the common law witness immunity rule is available to Dr. Smith in this case.

[31] On this record, I come to the same conclusion as reached in Elliott (supra) – the witness immunity rule applies to the negligence claim against the defendant – here Dr. Smith – a witness who testified in an earlier proceeding and who is now being sued on that earlier testimony and/or a post mortem report that he was required by law to prepare.

[32] Having reached that conclusion, in my view, it is “plain and obvious” that the Plaintiff cannot succeed on the negligence claim against Dr. Smith. See: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 976.

G. Witness Immunity and the added claim of misfeasance in public office

[33] As quoted earlier, in Samuel Manu-Tech (supra) at para. [20] it is stated that the doctrine of witness immunity “extends to any action, however framed and is not limited to actions of defamation”. See also: Lowe v. Guarantee Company of North America, 2005 80693 (ON CA), [2005] O.J. No. 2991 at para. [58] (Ont. C.A.).

[34] Therefore, the Plaintiff’s action based on the allegation of misfeasance in public office cannot succeed because the Hunt v. Carey test has once again been met.

V. The effect of the witness immunity rule on s. 53 of the Coroners Act, R.S.O. 1990, c. C.37:

53. No action or other proceeding for damages lies or shall be instituted against a coroner or any person acting under the coroner’s authority for an act done by him or her in good faith in the performance or intended performance of any power or duty under this Act or the regulations, or for any neglect or default in the performance in good faith of any such power or duty.

[35] In Etobicoke (Borough) Board of Education v. Highbury Developments Ltd., 1958 4 (SCC), [1958] S.C.R. 196, 200 (S.C.C.), the Court adopted the words of Grant J.A. in giving the unanimous judgment of the Court of Appeal for Ontario in Re Stronach (1928), 1928 448 (ON CA), 61 O.L.R. 636, 640:

The law is also well established that common law rights are not held to have been taken away or affected by a statute, …unless it is so expressed in clear language, or must follow by necessary implication and in such cases only to such an extent as may be necessary to give effect to the intention of the Legislature thus clearly manifested.

[36] In Rawluk v. Rawluk, 1990 152 (SCC), [1990] 1 S.C.R. 70, 90 (S.C.C.), Cory J.:

It is trite but true to state that as a general rule a legislature is presumed not to depart from prevailing law “without expressing its intention to do so with “irresistible clearness” (Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 2 (SCC), [1956] S.C.R. 610, at p. 614).

[37] In Goodyear (supra), Fauteux J., quoting from Maxwell on the Interpretation of Statutes, 9th ed. at 84, explained, at p. 614, that:

…a Legislature is not presumed to depart from the general system of the law without expressing its intentions to do so with irresistible clearness, failing which the law remains undisturbed.

[38] In my view, s. 53 of the Coroners Act does not show with “irresistible clearness” the intention of the Ontario Legislature to oust the common law absolute privilege rule.

[39] It will be observed that s. 53 of the Coroners Act does not grant immunity for other remedies such as injunctions or declarative relief. It only protects from financial consequences. See: Schut v. Magee (2003), 14 C.C.C.T. (3d) 301 (B.C.S.C.) per Kirkpatrick J.: affirmed by B.C.C.A.: (2003), 19 C.C.C.T. (3d) 233.

[40] It is my view that the common law witness immunity rule co-exists with s. 53 of the Coroners Act, the latter being narrower than the former. The latter does not trump the former.

VI. Result

[41] The appeals are allowed, the order of Coo J., dated December 10, 2002, and the order of Master Egan, dated August 23, 2005, are set aside and in their place there will be an order dismissing the action in its entirety against Dr. Smith and striking from the AASC:

(a) paragraphs 17, 29, 50, 52, 53 and 56

(b) all references to Dr. Smith in paragraphs 51, 55, 58, 59 and 82

(c) all implied references to Dr. Smith in paragraphs 4, 5, 6, 75, 76, 77, 78, 78.1, 78.2, 79, 80, 81, 82, and 86

(d) all references to Dr. Smith in paragraphs 80.3 and 80.4

(e) all implied references to Dr. Smith in paragraphs 80.1, 80.2, 80.3, 80.4 and 80.5, and

(f) Dr. Smith’s name from the style of cause.

VII. Costs

[42] If counsel are unable to agree on costs within ten (10) days of the release of these reasons, brief written submissions may be filed within a further period of ten (10) days. Thereafter, costs to be fixed.

O’Driscoll J.

Jennings J.

Released:

COURT FILE NO.: 84/03

DATE: 20060524

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O'DRISCOLL, JENNINGS and WILSON JJ.

B E T W E E N:

LOUISE REYNOLDS

Plaintiff/Respondent

• and -

~~CITY OF KINGSTON POLICE DEPARTMENT, THE KINGSTON CHIEF OF POLICE, ~~THE CITY OF KINGSTON POLICE SERVICES BOARD, BRIAN BEGBIE, ANDREW BIRD, HARLEY KELLER, BILL KENNEDY, CHRIS BARRETT, THOMAS GOODFELLOW, DR. CHARLES SMITH, and DR. ROBERT WOOD

Defendants/Appellant

Peter Wardle and Daniel Bernstein, for the Plaintiff/Respondent

W. Niels Ortved, and Jane A. Langford, for the Appellant, Dr. Charles Smith

HEARD: January 25 and 26, 2006

WILSON J. (Dissenting):

OVERVIEW:

[43] I have read the reasons for judgment of O’Driscoll J. and respectfully disagree with the conclusions reached.

[44] The appellant, Dr. Smith appeals from the order of Justice Coo declining to strike the plaintiff’s statement of claim, and from the order of Master Egan allowing further amendments to the claim.

[45] Dr. Smith is a pediatric pathologist who conducted the autopsy on the body of seven-year-old Sharon Reynolds. His task was to determine the cause of death, pursuant to section 28 of the Coroners Act, R.S.O. 1990, c. C.37. Dr. Smith gave an oral opinion to the police, which he confirmed eight months later in writing in the autopsy report, that the cause of death was loss of blood from multiple stab wounds.

[46] There was a pit bull terrier located in the basement where Sharon’s body was found. Dr. Smith was not initially advised of this fact but became aware of this fact during the police investigation. He continued to assert that the cause of death was multiple stab wounds.

[47] The plaintiff was charged with second degree murder of her daughter. Dr. Smith testified at the preliminary inquiry of the plaintiff with respect to his opinion.

[48] After she was charged, the plaintiff was incarcerated for two years, and her other children were removed from her care by the authorities.

[49] In this lawsuit, the plaintiff is not suing Dr. Smith with respect to his testimony at the preliminary hearing. Rather, she sues those alleged to be responsible, including Dr. Smith, for a faulty investigation. She alleges, with respect to Dr. Smith, that the initial autopsy was performed negligently, recklessly and in bad faith, with a view to securing a conviction. She also relies upon the emerging tort of public misfeasance, alleging deliberate unlawful conduct on the part of Dr. Smith, in exercising his public functions.

[50] At the plaintiff’s request a second autopsy was performed after the preliminary inquiry. The conclusion reached was that at least some of multiple wounds on Sharon’s body were probably caused by dog bites. The Crown subsequently withdrew the charges against the plaintiff.

[51] The appellant, Dr. Smith, appeals from a motion he brought before Justice Coo on December 10, 2002, seeking to strike the claim against him, relying upon the principle of absolute privilege. He argued that as he testified at the preliminary hearing, absolute privilege provides him with protection from liability for all stages of his involvement in this matter, including the autopsy performed at the direction of the Coroner. Justice Coo declined to strike the plaintiff’s amended statement of claim pursuant to Rule 21 of the Rules of Civil Procedure.

[52] Dr. Smith also appeals from the order of Master Egan, dated August 23, 2005. She allowed the plaintiff to amend the statement of claim to add an allegation of public misfeasance. Dr. Smith alleges that the plaintiff has failed to plead the required legal components of the tort. Additionally, he alleges that the claims for bad faith and public misfeasance lack particularity or are tactical amendments, and should therefore be struck.

[53] There is no case in Canada considering the scope of witness immunity with respect to a pathologist who conducts an autopsy pursuant to the Coroners Act and subsequently testifies in criminal proceedings. Furthermore, both the law relating to the doctrine of witness immunity and the law relating to the tort of public misfeasance are uncertain and constantly evolving, driven by the particular facts of individual cases. Counsel for Dr. Smith have not cited any binding authority on this court in support of their position. The decision in Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, [2005] N.S.J. No. 323 (N.S.C.A.) outlines the legal issues relevant to defining witness immunity persuasively and comprehensively, but it is clearly distinguishable on its facts.

[54] For reasons that I will fully outline, I conclude that it is not appropriate at the pleadings stage of this proceeding to strike a claim that is novel or difficult to prove. When the law is not clear, litigants are entitled to have the matter heard with the benefit of the full factual context. I rely upon the recent Ontario Court of Appeal decision of Freeman-Maloy v. Marsden, 2006 9693 (ON CA), [2006] O.J. No. 1228 (C.A.) which reiterates these principles on a Rule 21 motion.

LEAVE TO APPEAL:

[55] Leave to appeal from the order of Justice Coo was granted by Justice Ground on April 7, 2003. He questioned the correctness of the plaintiff’s assertion argued before Justice Coo that there was a distinction between the applicability of witness immunity in criminal, as opposed to civil cases. The plaintiff has conceded before us that witness immunity applies to both civil and criminal proceedings. I agree with the outline of the law provided by Justice O’Driscoll on this issue.

[56] Justice Ground also concluded that the appeal raised issues of considerable public importance. He expressed serious reservations with respect to the appellant’s position concerning the scope of absolute privilege relevant to his case:

Counsel for Smith appear to submit that, so long as a causal and temporal nexus is established [between the statements made by the witness and the ensuing criminal proceedings], no action can be commenced against a witness for statements made in the context of a civil or criminal proceeding regardless of the motive of the witness in making such statements or any malfeasance of the witness of making such statements. This would result in the witness having an absolute defence to any action brought for malicious prosecution or abuse of public office even if the other elements of such an action could be established. I have serious reservations as to whether that is the law in this province and I am of the view that this is a matter of considerable public importance. [emphasis added]

The Test on Rule 21 and the Standard of Review

[57] The Supreme Court of Canada confirmed in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at 277 that a pleading will be struck under Rule 21 as disclosing no cause of action only if it is “plain and obvious” that the action as pleaded cannot succeed. Furthermore, it is well accepted that on such a motion, the facts pleaded must, for the time being, be assumed to be true: see Freeman-Maloy v. Marsden, supra, at para. 2.

[58] The Supreme Court in Odhavji adopted the following test for striking out a claim, from Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at 980:

… if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ... should the relevant portions of a plaintiff's statement of claim be struck out...

[59] The Ontario Court of Appeal recently re-iterated the proper test to apply on a Rule 21 motion. At para. 18 of Freeman-Maloy v. Marsden, supra, the court noted that “novel and unusual claims should be allowed to proceed to trial where they can be tested on a full factual record”. It is not up to this court to review a novel claim on its merits without the full factual context.

[60] This appeal raises questions of law with respect to the scope of the doctrine of absolute privilege, and whether the legal components of the tort of public misfeasance have been pleaded. It is agreed between the parties that the standard of review to be applied by this court is that of correctness: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R 235.

THE ISSUES:

(a) Are all acts of Dr. Smith during the initial autopsy and his opinion rendered to the police protected by witness immunity and absolute privilege because Dr. Smith subsequently testified at the preliminary inquiry? Hence, should the plaintiff’s pleadings be struck?

(b) Alternatively, should the claim for public misfeasance be struck as the pleading fails to plead the required legal components of the tort?

(c) Finally, should the claims for bad faith and public misfeasance be struck as lacking particularity or as being tactical amendments?

POSITIONS OF THE PARTIES:

[61] Dr. Smith argues that because he ultimately testified as a witness at the preliminary inquiry, he can rely upon the principle of absolute privilege for protection with respect to all aspects of his involvement in this matter. This includes the autopsy performed pursuant to the Coroners Act, the initial verbal opinion as to the cause of death given to the police in June 1997, the written autopsy report prepared pursuant to the Coroners Act dated March 1998, and his testimony at the preliminary hearing. He submits that he conducted an examination with a view to testifying in court. He alleges that he did not conduct an investigation. He asserts that the focus of the plaintiff’s complaint is the evidence given at the preliminary hearing, not the autopsy. In essence, his view is that all of the acts and events with respect to the autopsy exist on a continuum, and absolute privilege must apply to the continuum in its entirety. On this basis, so he argues, no claim can be advanced against Dr. Smith and the pleadings against Dr. Smith should be struck.

[62] The plaintiff, rather than viewing Dr. Smith’s involvement as falling at different points that blur together on a continuum, asserts that Dr. Smith performed two discrete roles.

[63] First, Dr. Smith was appointed by the Coroner to fulfill a public investigative function to determine the cause of Sharon’s death in accordance with the requirements of the Coroners Act. The “gist and essence” of his role in this stage was an investigation, not a gathering of evidence for an anticipated criminal proceeding.

[64] Section 28 of the Coroners Act appears to confirm that the Coroner’s investigation and autopsy is intended and required to be independent and distinct from any police criminal investigation. The pathologist charged with performing the autopsy is required to “forthwith” prepare a written report, and that report shall only be provided to the Coroner and the Crown Attorney. Contrary to the provisions of this section, Dr. Smith was in verbal contact with the police, and he did not prepare his written autopsy report “forthwith” but rather eight months after he conducted the autopsy.

[65] Second, later in the process, Dr. Smith played a separate role, and became a witness for the Crown in the context of the criminal proceedings. The plaintiff concedes that Dr. Smith’s testimony in court at the preliminary inquiry and any necessary preparation for that phase are subject to absolute privilege.

[66] The plaintiff seeks damages with respect to the statutorily mandated public investigation of the Coroner: the autopsy, the initial verbal opinion, and the autopsy report. The plaintiff’s position is that conducting an autopsy and producing a report pursuant to the Coroners Act do not constitute preparation of evidence or a report for the purpose of anticipated criminal proceedings. These activities are not, thus, covered by absolute privilege.

ISSUE 1: The Scope of Witness Immunity

Two Competing Public Interests

[67] The statement of claim alleges breach of good faith, recklessness, negligence, and public misfeasance by Dr. Smith.

[68] These are legal issues that are evolving, uncertain, and factually driven in their development.

[69] Sharpe J.A. in Freeman-Maloy v. Marsden, supra, considered the emerging tort of public misfeasance and the competing public interests involved in its development as a tort. He observed that the tort of public misfeasance “is constantly evolving” (at para. 26). The Court of Appeal set aside the order of Justice Hoy, who had dismissed the plaintiff’s claim pursuant to Rule 21 of the Rules of Civil Procedure.

[70] Sharpe J.A. outlined, at para. 10, the principles underpinning the tort of public misfeasance as follows:

The tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen. As Lord Steyn put it in Three Rivers District Council v. Bank of England (No. 3), [2000] H.L.J. No. 32, [2000] 2 W.L.R. 1220 at 1230: "The rationale of the tort is that in a legal system based on the rule of law executive or administrative power `may be exercised only for the public good' and not for ulterior and improper purposes." The "underlying purpose" of the tort of misfeasance in a public office "is to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions": Odhavji, supra at para. 30.

[71] As tort law evolves, there has been a corresponding development in the doctrine of witness immunity. Principles have developed incrementally to meet the emerging problems of our complex and changing society. As noted above, there is no Canadian jurisprudence considering the scope of witness immunity in circumstances sufficiently similar to this case.

[72] When defining the scope of absolute privilege, a tension emerges between two competing public interests. First, witnesses must feel free to give full and frank evidence without being sued. Second, investigations involving accused persons must be conducted with neutrality, independence, and without malice or bad faith.

[73] As the British Columbia Supreme Court described it in Carnahan v. Coates (1990), 1990 2299 (BC SC), 47 B.C.L.R. (2d) 127 at 138 (B.C.S.C.), “[f]undamental to any assessment of the extent of witness immunity is the tension between the basic principles that there should be no wrong without a remedy, and the public’s interest in the administration of justice”.

[74] In Roy v. Prior, [1970] 2 All E.R. 729 at 736 (H.L.), the House of Lords suggested that a dynamic approach is needed in assessing the scope of witness immunity to meet the changing needs of society and the law, and to balance the competing interests of justice. Such an approach can only be developed on a case-by-case basis, taking into consideration the unique factual contexts that arise under different statutory schemes and in various circumstances: “[i]mmunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest.”

[75] I outline some well-accepted principles regarding witness immunity in support of my conclusion that it would be premature to strike the plaintiff’s claim at this stage of the proceeding.

The Purpose of Witness Immunity

[76] The term “witness immunity” is often used interchangeably with “absolute privilege”. Witness immunity is part of the broader framework in place to protect the integrity of proceedings before a court or tribunal, known as absolute privilege. The Ontario Court of Appeal, in Samuel Manu-Tech Inc. v. Redipac Recycling Corporation (1999), 1999 3776 (ON CA), 124 O.A.C. 125 at 130, cites with approval the explanation of absolute privilege found in Halsbury’s Laws of England, Fourth Edition Reissue 1997, vol. 28 at para. 97:

Absolute Privilege. No action lies… for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law… The privilege extends to documents properly used and regularly prepared for use in the proceedings… However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings … [emphasis added]

The Limits of Witness Immunity – the Distinction Between Investigation and Testimony

[77] Witness immunity does not necessarily apply to all actions or any conduct of a potential witness.

[78] The existing case law in Canada, England and the United States, is clear that witness immunity does not extend to the entire investigative phase prior to a civil or criminal proceeding.

[79] The core principles of witness immunity apply only if the “gist and essence” of the claim relate to the evidence given in court: see Elliott v. Insurance Crime Prevention Bureau, supra at para. 124.

[80] In Darker v. Chief Constable of West Midlands Police, [2001] 1 A.C. 435 at para. 8 (H.L.), Lord Hope confirmed the distinction between performing an investigation and giving evidence, drawing a line between two functions of police officers: (1) things said or done in the ordinary course of preparing reports for use in evidence, and (2) conduct at earlier stages in the case, including investigation.

[81] Lord Hope discussed the policy reasons for limiting the scope of witness immunity, at para. 8:

But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. [emphasis added]

The Need for a Factual Basis to Define the Boundaries of Witness Immunity

[82] The appellant concedes that the question of where to draw the boundaries of the investigative phase, in order to limit witness immunity, is fact-dependent.

[83] In Rajkhowa v. Watson, 1998 3273 (NS SC), [1998] N.S.J. No. 85 (N.S.S.C.), Justice Hood analyzed where absolute privilege may begin and end in the context of considering whether a pleading should be struck. What is clear from her framework is that there may be bright lines at the extreme ends, but in between there exists a grey area that will require a close scrutiny of the facts (at paras. 39-42):

There must be a direct connection between the making of the statement and the proceedings. A statement in court is clearly protected, as is the laying of an Information by the police. These are part of the court proceedings or a necessary step in the court proceedings.

There is a continuum. It starts at Step One with the investigation by an investigating body; at Step Two that body sends information to the police; at Step Three, the police investigate; at Step Four, if warranted, the police lay an Information; at Step Five, court proceedings occur.

Clearly at Step One there is no absolute privilege. Just as clearly, at Step Five, there is absolute privilege. Step Four is part of the judicial proceedings or a necessary step in them and is subject to absolute privilege.

It is Steps Two and Three that are problematic. Even if Step Three is protected, Step Two may not be. If Step Three is not protected, then Step Two certainly cannot be.

[84] Thus, there may be a number of distinct roles played by an individual in the process, and not all of these roles are covered by absolute privilege. Defining the boundaries of witness immunity may be nuanced and difficult, as is noted by Lord Clyde in Darker, supra, at p. 458. At p. 460, he commented: “In drawing the line in any particular case it may be necessary to study precisely what was being done and how closely it was linked with the proceedings in court.”

[85] Lord Clyde noted that defining the scope of witness immunity may involve “delicate questions of fact… as to whether or not the material in question was or was not provided with a view to court proceedings” (at p. 458).

The Reluctance to Extend Witness Immunity

[86] The courts are reluctant to extend witness immunity beyond its scope necessary for the achievement of significant goals: see Roy v. Prior, supra, at p. 736. In Elliott, supra, the Court stated, at para. 118, that “such a sweeping exemption from liability is only justified when demonstrably necessary to achieve important objectives”. Necessity must be shown for the doctrine to apply. See also Darker, supra, at p. 469, citing Lincoln v. Daniels, [1962] 1 Q.B. 237 at 263, where Lord Devlin stated:

I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. [emphasis added]

[87] Similarly, Lord Cooke in Darker, at p. 453, stated that witness immunity is only “granted grudgingly”: “The protection should not be given any wider application than is absolutely necessary in the interests of justice”.

The English Authorities: Evans and Darker

[88] Counsel for Dr. Smith relies heavily on the English decision of Evans v. London Hospital Medical College, [1981] 1 All E.R. 715 (Q.B.) for the proposition that because Dr. Smith testified at the plaintiff’s preliminary inquiry, witness immunity protects Dr. Smith’s autopsy, preliminary oral opinion to the police prior to the criminal charges being laid, and subsequent coroner’s autopsy report.

[89] In Evans, the pathologist made errors in the post-mortem reports submitted to the police. As a result of these errors, criminal charges were laid against the plaintiff. The plaintiff sued the defendant pathologist for negligence. At the pleadings stage, the claim against the doctor was struck.

[90] Justice Drake characterized the scope of witness immunity broadly to include the investigation of a crime or a possible crime with a view to a prosecution or a possible prosecution (at p. 721).

[91] There are several reasons why I reject Evans as binding authority for the proposition that the appellant asserts.

[92] First, Justice Drake asserted that a broad characterization of witness immunity was necessary to preclude the disgruntled litigant from pursuing, for example, the police for a negligent investigation (at p. 720). Tort law in England, the United States and Canada has evolved significantly in the last twenty-five years since Evans. Negligent investigation by police officers may be grounds for a civil suit. Abuse of public office and malicious prosecution continue to evolve as viable torts.

[93] Second, in Darker, supra, the law lords placed refinements and limits on the Evans ratio. Lord Cooke noted, at p. 454, that the ratio in Evans may apply in a case where evidence was prepared in a manner that was bona fide but allegedly negligent, but “to give it some wider influence could be dangerous.”

[94] Lord Cooke also drew a distinction between the preparation for and giving of evidence versus the investigatory function of the police and other public officials (at pp. 453-454). Whereas witness immunity is a “general doctrine” that applies to all persons called upon to give evidence, police and “various other public officials” have the function of official investigation: “Conduct which is primarily and naturally to be seen as belonging to the investigatory function, even though it may have some ultimate link with the giving of evidence, should not be within the general protection.”

[95] Lord Clyde confirmed that witness immunity will apply only if the statement is made for the purpose of a possible prosecution and at a time when that prosecution is being considered. He adopted at pp. 458-459 the principle in Evans that “the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution or possible prosecution in respect of the matter being investigated.”

The Availability of Witness Immunity in Allegations of Bad Faith and Public Misfeasance

[96] The plaintiff in this case alleges bad faith and public misfeasance, not simply negligence.

[97] Lord Hoffman, for the majority in Taylor v. Director of Serious Fraud Office, [1999] 2 A.C. 177 (H.L.), expressed the view, with respect to Evans, that the case may have been pleaded differently under evolving tort law, in order to plead breach of a duty of care owed.

[98] Importantly, he also noted, at p. 215, that it is not clear whether witness immunity applies to public misfeasance: “There is also some dispute over whether [witness immunity] applies to the emergent tort of abuse of public office”.

[99] There are no Canadian authorities that have addressed whether witness immunity applies to these specific torts.

[100] Justice Ground, in his reasons granting leave to appeal, expressed doubt as to whether witness immunity applied the torts of bad faith or public misfeasance.

The Canadian Authorities

[101] A number of Canadian courts have considered Evans in recent years, including Elliott, supra; Starkman v. Canada (A.G.), [2000] O.J. No. 3764 (Sup. Ct.); Carnahan, supra; M.(N.) v. M. (I.A.S.), 1992 254 (BC CA), [1992] 69 B.C.L.R. (2d) 99 (B.C.C.A.). None have expressly adopted Justice Drake’s broad definition of the scope of witness immunity. Canadian courts have stressed the importance of the factual context to determine the scope of witness immunity.

[102] In Carnahan, supra, the British Columbia Supreme Court asserted that in order to protect the integrity of the judicial process, an expert witness must be “immune from suit by any person with whom his only relationship derives from the judicial proceeding” [emphasis added] (at p. 142). The only cause of action in Carnahan was negligent testimony, which was found to derive solely from the judicial proceeding. Hence, on the motion for summary judgment, the action was dismissed.

[103] Similarly, in M.(N.), supra, the defendant expert witness was found to be protected by witness immunity because at the time he was retained, he was aware that court action was contemplated. As in Carnahan, where the only relationship between a plaintiff and a defendant expert is derived from judicial proceedings, the doctrine of witness immunity should apply (at p. 105).

[104] Both Carnahan and M.(N.) are distinguishable from the case at bar, since the activities in question in these cases were either the actual giving of evidence in court or out-of-court activities done for the express purpose of providing evidence in court.

[105] Where out-of-court activities and statements are at issue, the courts have demanded a complete factual record. In Elliott, supra, Cromwell J.A. concluded that where it was not clear that all of a defendant’s activities were for the purpose of preparing evidence for trial, a more complete factual record was required to determine whether or not witness immunity would apply (at para. 214).

[106] The decision of Cromwell J.A. in Elliott is a comprehensive review of the law of witness immunity, but it, too, is distinguishable on its facts. The plaintiffs sought damages against various investigators for failure to exercise proper care in investigating and reporting on a fire in their home. Cromwell J.A for the Court concluded that witness immunity “does not apply to everyone who investigates anything which may result in litigation in which they may be possible witnesses” (at para. 106). The Court acknowledged that “how far the immunity extends to things said and done out-of-court is a grey area” (at para. 102).

[107] The Court explained that “[t]he focus of witness immunity is not the content of the statement, but the occasion on which it is made. The protected occasion is testifying in court. The more closely connected the out-of-court statement or conduct is to that ‘occasion’, the stronger the case of necessity” (at para. 209). To determine the closeness of this connection, several factors focusing on the purpose of the conduct for which immunity is claimed, are considered (at para. 211):

To decide whether the immunity applies, the case law has looked to whether the action is based on the ‘judicial phase’ of the proceedings, whether it relates to ‘matters of advocacy’ or whether the ‘principal purpose’ was to prepare evidence for the court. These are primarily questions of fact and the burden is on the parties claiming the immunity to prove facts which bring them within it. [emphasis added]

[108] As noted above, the Court held that the core principles of witness immunity apply only if the “gist and essence” of the claim relate to the evidence given in court (at para. 124). Cromwell J.A. found that two of the defendants who had testified in court were protected by witness immunity. However, he also found that two other defendants were not entitled to immunity, despite the fact that they, too, had testified in court. Cromwell J.A. stated that although in some circumstances, an investigator’s role as investigator and witness may “become so inextricably combined that it is impossible to distinguish them”, there must be facts to support such an argument (at para. 216).

[109] In Starkman, supra, the plaintiff commenced an action against an expert retained by the Minister of National Revenue in the course of an investigation. Justice Mesbur, on a motion under Rule 21, stated, at para. 7: “In Ontario, at least, it is not yet settled law to extend witness immunity to statements made to investigators in preparation of a potential prosecution. At best, our courts have stated that ‘perhaps’ the immunity ‘might’ extend that far”.

[110] Justice Mesbur commented that on such a motion, the “court should not dispose of legal issues that are not fully settled in the jurisprudence” (at para. 4). She distinguished Evans on the basis that the report in Evans formed the sole basis for the charges, and that the charges followed the report immediately (at para. 7). The facts in Starkman did not bring the evidence at issue obviously within the protection of witness immunity, and so the Court concluded: “It is therefore by no means ‘plain and obvious’, at this early stage, that the claim is barred by virtue of the concept of witness immunity” (at para. 7).

[111] In Elliott, the Court adopted the reasoning in Starkman as standing for the principle that “the purpose for which an investigation is conducted is essentially a matter of fact” (at para. 195).

[112] From the review of the above authorities, it is clear that the law with respect to the scope of witness immunity is not settled in Ontario, and that the courts have determined this issue can only be determined where there is a complete factual record.

[113] In R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 2731 (ON CA), 5 O.R. (3d) 778 at 782 (C.A.), the Court of Appeal held that "[m]atters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage of the proceedings." See also: Romano v. D'Onofrio, 2005 43288 (ON CA), [2005] O.J. No. 4969 at paras. [7-9] (C.A.); and Foreign Exchange Corp. v. Integrated Payment Systems Canada Inc., [2005] O.J. No. 2241 at para. 6 (C.A.).

The Independence of the Coroner’s Investigation Under the Coroners Act

[114] Not only are the cases discussed above distinguishable on their particular facts, but they do not involve an actor subject to the unique statutory regime of the Coroners Act, a factor which merits close attention in determining the scope of witness immunity in this case. The defence concedes that the Coroner conducts investigations as is clearly noted in sections 15, 16, and 28 of the Coroners Act, attached as Schedule “A”.

[115] Unlike the pathologist in Evans, Dr. Smith was acting under a statutory mandate contemplating an independent public investigation into the cause of death. In Evans, the pathologists were expert witnesses retained by the police. They were to conduct the autopsy and to provide evidence to the police in anticipation of criminal proceedings. The “gist and essence” of the retainer was to provide evidence for court. There was a clear nexus from the outset between the retainer and the work performed, and the subsequent court proceeding. The doctors provided a summary of their written report directly to the police for their use at the criminal prosecution. In reliance upon this evidence, the plaintiff was charged.

[116] Counsel for Dr. Smith argue that a pathologist appointed by the Coroner to conduct an autopsy is not conducting an investigation, but is rather conducting an examination in the course of preparing evidence for a possible prosecution.

[117] I do not agree.

[118] Sections 15(1) and (4), as well as section 28 are relevant to defining Dr. Smith’s role as a retained expert in the context of the Coroner’s investigation:

Warrant for possession of body; investigation

15(1) Where a coroner is informed that there is in his or her jurisdiction the body of a person and that there is reason to believe that the person died in any of the circumstances mentioned in section 10, the coroner shall issue a warrant to take possession of the body and shall view the body and make such further investigation as is required to enable the coroner to determine whether or not an inquest is necessary.

(4) Subject to the approval of the Chief Coroner, a coroner may obtain assistance or retain expert services for all or any part of his or her investigation or inquest.

Post mortem examinations and analysis

28(1) A coroner may at any time during an investigation or inquest issue a warrant for a post mortem examination of the body, an analysis of the blood, urine or contents of the stomach and intestines, or such other examination or analysis as the circumstances warrant.

(2) The person who performs the post mortem examination shall forthwith report his or her findings in writing only to the coroner who issued the warrant, the Crown Attorney, the regional coroner and the Chief Coroner and the person who performs any other examination or analysis shall forthwith report his or her findings in writing only to the coroner who issued the warrant, the person who performed the post mortem examination, the Crown Attorney, the regional coroner and the Chief Coroner. [emphasis added]

[119] Dr. Smith was performing the autopsy pursuant to the warrant issued by the Coroner in accordance with section 28 of the Coroners Act. Dr. Smith was appointed to fulfill part of the Coroner’s public function to investigate and determine the cause of Sharon’s death. The Coroner, and hence Dr. Smith, prepared the autopsy report primarily in fulfillment of the mandated, legislated public function to determine the cause of death, not for the purpose of preparing evidence for a potential criminal proceeding.

[120] After completing the autopsy, Dr. Smith was required to “forthwith” prepare a written autopsy report and was required to submit it according to section 28 of the Coroners Act “in writing only to the coroner who issued the warrant, the Crown Attorney, the regional coroner and the Chief Coroner” [emphasis added].

[121] In fact, Dr. Smith gave a verbal report to the police, which does not seem to be contemplated by section 28. He did not prepare his written autopsy report forthwith – it was produced some eight months later. Dr. Smith relies on this initial verbal contact with the police as part of the continuum suggesting that the autopsy evidence was being gathered in furtherance of criminal proceedings. This initial communication, however, does not appear to be contemplated or permitted by the legislation.

[122] Section 28 of the Coroners Act appears to distance the investigation conducted by the Coroner or a delegate of the Coroner from the police investigation.

[123] The need for the separation between the role of the Coroner and the police was expressed by La Forest J. in R. v. Colarusso, 1994 134 (SCC), [1994] 1 S.C.R. 20, with respect to the independent investigatory role of the Coroner in an inquest. He concluded at para. 97: “The investigation of the coroner must remain separate from any police investigation, and the legislative scheme must prevent the type of interaction between the coroner and the state that existed in the present case”. He went on to state the following at para. 101:

The mandate of the modern coroner in Ontario is not to determine if any specific crime has been committed; in fact, s. 31(2) of the Ontario Coroners Act precludes any finding of legal responsibility during an inquest. It is apparent that coroners' inquests in Ontario today fulfill a role much different from that of their predecessors in the last century when the coroner acted as another criminal law enforcement arm of the state...

[124] These comments were made in the context of a Coroner’s Inquest. They appear to be equally apt with respect to an autopsy. Section 28 of the Coroners Act contemplates an independent written report prepared forthwith after the autopsy, without any contact between the Coroner and the police.

The Effect of Section 53 of the Coroners Act

[125] Furthermore, in Ontario, it is arguable that the scope of the privilege with respect to the investigative role of the Coroner has been determined by section 53 of the Coroners Act.

[126] Dr. Smith specifically pleads and relies upon section 53 of the Coroners Act in his statement of defence.

[127] Section 2 of the Coroners Act repeals the common law functions and duties of the Coroner. In so far as the Legislature has been able to codify the functions, powers and duties of the Coroner, the provisions of the Act prevail.

[128] Section 53 of the Coroners Act provides the Coroner, or his or her designate, such as Dr. Smith, with the protection of qualified privilege – that is, immunity from civil suit unless there is bad faith with respect to the execution of the Coroner’s duties as stipulated by the legislation:

Effect of Act

Repeal of common law functions

2. (1) In so far as it is within the jurisdiction of the Legislature, the common law as it relates to the functions, powers and duties of coroners within Ontario is repealed.

Protection from liability

53. No action or other proceeding for damages lies or shall be instituted against a coroner or any person acting under the coroner’s authority for an act done by him or her in good faith in the performance or intended performance of any power or duty under this Act or the regulations, or for any neglect or default in the performance in good faith of any such power or duty.

[129] It may be argued that these specific statutory provisions, including the repeal of the common law, trump any extension of witness immunity to the Coroner, or anyone authorized to perform the functions of the Coroner. The issue should be determined with the benefit of the full factual context that is not presently before this court.

Conclusions With Respect to the Scope of Witness Immunity

[130] The law with respect to witness immunity and absolute privilege has evolved and continues to evolve. The courts have not examined the provisions of the Coroners Act that define the duties and limit the privilege afforded to someone like Dr. Smith. The determination of the boundaries of witness immunity, and the distinction between investigation and testimony in this specific context, involve nuanced questions of fact.

[131] The determination of unsettled legal issues should be made only in the context of a full factual record, possibly including appropriate expert evidence: see Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 17170 (ON CA), 49 O.R. (3d) 699 at paras. [22-23] (C.A.). To the extent that this case involves the resolution of unsettled questions of law, requiring a factual context, a Rule 21 motion is not the proper forum to resolve the issue.

[132] For all these reasons, I am not satisfied that the defendant Dr. Smith has proved that it is “plain and obvious” in law that witness immunity applies to all acts and reports provided by Dr. Smith related to the autopsy. I would therefore dismiss the appeal from the decision of Justice Coo.

ISSUE 2: The Pleading of the Legal Components of the Tort of Public Misfeasance

[133] Dr. Smith also argues that Master Egan’s decision to allow amendments to the pleadings to include the tort of pubic misfeasance is incorrect in law. Counsel asserts that two of the legal requirements of the tort cannot be proved, or are not properly pleaded.

[134] Public misfeasance involves deliberate unlawful conduct by a public officer. Dr. Smith challenges the conclusion of Master Egan that he may be a public officer. He also asserts that the present claim does not include the required legal component of an unlawful act. For either or both of these reasons, Dr. Smith argues that the amendments granted by Master Egan should be struck.

[135] I do not agree with the submissions on either argument.

Public Officer

[136] It is agreed that the Office of the Chief Coroner for Ontario is a public office. It falls under the purview of the Ministry of Community Safety and Correctional Services. The public nature of its function is described in the Mission Statement of the Officer of the Chief Coroner on its website:

The Office of the Chief Coroner for Ontario serves the living through high quality death investigations and inquests to ensure that no death will be overlooked, concealed or ignored. The findings are used to generate recommendations to help improve public safety and prevent deaths in similar circumstances. [emphasis added]

[137] What is in dispute is whether a medical practitioner who performs a post-mortem, such as Dr. Smith, is a public officer or acts as an agent of the Coroner. This question has not been determined by courts in this province.

[138] Dr. Smith argues that he is not a public officer. Rather, he submits that he is merely a medical practitioner with specialized expertise who conducted the autopsy examination on a fee for service basis, pursuant to the Coroners Act.

[139] Dr. Smith’s pleadings appear to be in conflict with his argument on this point. His Statement of Defence asserts in paragraphs 4, 5, and 8, that he was at all times acting pursuant to the Coroners Act conducting an autopsy at the Coroner’s facility as a regional pathologist. At all times he was acting pursuant to a warrant issued by the Coroner in accordance with the requirements of the Coroners Act.

[140] Dr. Smith asserts, in para. 13 of his defence, that he is entitled to the qualified privilege protection of section 53 of the Coroners Act. This section protects the public office of the Coroner, or those performing functions for the Coroner.

13. At all material times, Dr. Smith performed his duties pursuant to the Coroners Act, in a careful, competent, diligent manner, and in good faith. At all times, Dr. Smith acted under the Coroner’s authority in accordance with the legislation. As such, and pursuant to section 53 of the Coroners Act, no action for damages lies against him and this action is therefore barred.

[141] The plaintiff suggests that Dr. Smith wishes the protection of the public office of the Coroner, without acknowledging that he is a public officer. His arguments appear to be inconsistent.

[142] In the recent decision of R. v. Kporwodu, 2005 11389 (ON CA), [2005] O.J. No 1405 at paras. [51-52] (C.A.), the Court of Appeal considered the role of Dr. Smith in the context of an appeal from a motion to stay proceedings for delay. The Crown conceded, and the Court of Appeal agreed, that Dr. Smith as the pathologist in that case conducting the post-mortem was a “state actor”. It appears implicit in this characterization, admittedly in a different factual context, that Dr. Smith was a public officer, not merely a witness called by the Crown.

[143] The case law cited by Dr. Smith, which utilizes a test of the degree of government control, appears distinguishable, as the parties have conceded that the Coroner is a public officer: see Elliott v. Canadian Broadcasting Corporation (1993), 1994 10569 (ON SC), 16 O.R. (3d) 677 at 695 (Gen. Div.). I note as well that the decision of Freeman-Maloy v. Marsden, supra relied upon by Dr. Smith, was reversed by the Court of Appeal.

[144] In any event, it appears that the requisite test of control is met by the structure and framework of the Coroners Act, as is reflected in the statement of defence of Dr. Smith.

[145] For these reasons, I agree with the conclusions of Master Egan that “it is not beyond all doubt that the claim that Dr. Smith is a public officer is impossible of success”.

What Constitutes an Unlawful Act

[146] The required elements of the tort of public misfeasance have been recently considered in Odhavji Estate, supra, at paras. [18-32]. The tort may be pleaded in one of two ways.

[147] First, in Category A, the tort may be founded upon targeted malice - that the public officer acted with the express purpose of injuring a plaintiff. Proof of targeted malice is sufficient to prove the tort. It is implicit in proving targeted malice that the public officer has engaged in deliberate unlawful conduct, and that the officer is aware that the conduct is likely to harm the plaintiff. In this case, the plaintiff is not relying upon targeted malice.

[148] The plaintiff relies upon the second formulation of the tort, referred to in the cases as Category B. Each of the elements of the tort must be independently proved. The tort involves:

• a public officer; who

• engages in deliberate unlawful conduct in his or her capacity as a public officer; and

• the public officer must be aware that his or her conduct is unlawful, and that the misconduct is likely to injure the plaintiff.

[149] Dr. Smith asserts that the unlawful act must be an act rather than a state of mind. Respectfully, the Supreme Court of Canada in Odhavji held that the requisite unlawful act may be an improper purpose, which inherently involves the officer’s state of mind. The Court, at para. 24, adopts the reasoning in Three Rivers District Council v. Bank of England (No. 3), [2000] 3 All E.R. 1:

The relevant act or omission (in the sense described) must be unlawful. This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose. [emphasis added]

[150] The pleadings, as amended, allege an improper purpose. Dr. Smith showed reckless disregard for the truth in his initial verbal report and in his subsequent written report, for the improper purposes of assisting the police to secure a conviction, self-aggrandizement, or to avoid embarrassment. The details in the pleadings included in paras. 80.2, 80.3 and 80.4 of the proposed amendments, as well as the allegations in paras. 78.1 to 78.6 would, if proved, constitute an improper purpose by Dr. Smith in the exercise of his public functions.

[151] For these reasons, I agree with Master Egan’s conclusions. I would dismiss the appeal from the decision of Master Egan, allowing the amendments to the statement of claim to include public misfeasance.

ISSUE 3: Lack of Particulars of Bad Faith, and Tactical Amendments

[152] Dr. Smith asserts that there are insufficient particulars of bad faith pleaded and that Justice Coo erred in concluding that the plaintiff “cannot get inside the head of Dr. Smith” in allowing the claim to proceed “in the very special circumstances of this case”. I agree with Justice Coo’s conclusions. In any event, I conclude that the particulars pleaded subsequently, in support of the additional amendment for public misfeasance referred to above, provide ample particulars of bad faith.

[153] The appellant finally suggests that the requested amendments are tactical only, meant to circumvent the Rule 21 motion to strike the pleadings. This may be so. However, tactics are inherent in any legal proceedings as it unfolds. There is no suggestion that the amendments sought are frivolous or vexatious, or an abuse of process. This argument is without merit.

Conclusions

[154] For these reasons I would dismiss both of the appeals and would allow the action to proceed.

Wilson J.

Released:

Schedule A

Coroners Act, R.S.O. 1990, c. C.37

Warrant for possession of body; investigation

15.(1)Where a coroner is informed that there is in his or her jurisdiction the body of a person and that there is reason to believe that the person died in any of the circumstances mentioned in section 10, the coroner shall issue a warrant to take possession of the body and shall view the body and make such further investigation as is required to enable the coroner to determine whether or not an inquest is necessary.

Idem

(2) Where the Chief Coroner has reason to believe that a person died in any of the circumstances mentioned in section 10 and no warrant has been issued to take possession of the body, he or she may issue the warrant or direct any coroner to do so.

Jurisdiction

(3) After the issue of the warrant, no other coroner shall issue a warrant or interfere in the case, except the Chief Coroner or except under the instructions of the Minister.

Expert assistance

(4) Subject to the approval of the Chief Coroner, a coroner may obtain assistance or retain expert services for all or any part of his or her investigation or inquest.

No warrant

(5) A coroner may proceed with an investigation without taking possession of the body where the body has been destroyed in whole or in part or is lying in a place from which it cannot be recovered or has been removed from Ontario.

Investigative powers

16.(1)A coroner may,

(a) view or take possession of any dead body, or both; and

(b) enter and inspect any place where a dead body is and any place from which the coroner has reasonable grounds for believing the body was removed.

Idem

(2) A coroner who believes on reasonable and probable grounds that to do so is necessary for the purposes of the investigation may,

(a) inspect any place in which the deceased person was, or in which the coroner has reasonable grounds to believe the deceased person was, prior to his or her death;

(b) inspect and extract information from any records or writings relating to the deceased or his or her circumstances and reproduce such copies therefrom as the coroner believes necessary;

(c) seize anything that the coroner has reasonable grounds to believe is material to the purposes of the investigation.

Delegation of powers

(3) A coroner may authorize a legally qualified medical practitioner or a police officer to exercise all or any of the coroner’s powers under subsection (1).

Idem

(4) A coroner may, where in his or her opinion it is necessary for the purposes of the investigation, authorize a legally qualified medical practitioner or a police officer to exercise all or any of the coroner’s powers under clauses (2) (a), (b) and (c) but, where such power is conditional on the belief of the coroner, the requisite belief shall be that of the coroner personally.

Return of things seized

(5) Where a coroner seizes anything under clause (2) (c), he or she shall place it in the custody of a police officer for safekeeping and shall return it to the person from whom it was seized as soon as is practicable after the conclusion of the investigation or, where there is an inquest, of the inquest, unless the coroner is authorized or required by law to dispose of it otherwise.

Obstruction of coroner

(6) No person shall knowingly,

(a) hinder, obstruct or interfere with or attempt to hinder, obstruct or interfere with; or

(b) furnish with false information or refuse or neglect to furnish information to,

a coroner in the performance of his or her duties or a person authorized by the coroner in connection with an investigation.

Post mortem examinations and analyses

28. (1) A coroner may at any time during an investigation or inquest issue a warrant for a post mortem examination of the body, an analysis of the blood, urine or contents of the stomach and intestines, or such other examination or analysis as the circumstances warrant.

Report

(2) The person who performs the post mortem examination shall forthwith report his or her findings in writing only to the coroner who issued the warrant, the Crown Attorney, the regional coroner and the Chief Coroner and the person who performs any other examination or analysis shall forthwith report his or her findings in writing only to the coroner who issued the warrant, the person who performed the post mortem examination, the Crown Attorney, the regional coroner and the Chief Coroner.

Protection from liability

53. No action or other proceeding for damages lies or shall be instituted against a coroner or any person acting under the coroner’s authority for an act done by him or her in good faith in the performance or intended performance of any power or duty under this Act or the regulations, or for any neglect or default in the performance in good faith of any such power or duty.

COURT FILE NO.: 84/03

DATE: 20060524

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, jennings and wilson jj.

B E T W E E N:

LOUISE REYNOLDS

Plaintiff/Respondent

• and -

THE CITY OF KINGSTON POLICE SERVICES BOARD, BRIAN BEGBIE, ANDREW BIRD, HARLEY KELLER, BILL KENNEDY, CHRIS BARRETT, THOMAS GOODFELLOW, DR. CHARLES SMITH and DR. ROBERT WOOD

Defendants/Appellant

REASONS FOR JUDGMENT

Released: May 24, 2006