Court File and Parties

Court File No.: CV-19-00618658 Date: 2024-07-10 Superior Court of Justice – Ontario

Re: A.C., Plaintiff

And:

The Children’s Aid Society, Toronto Police Services Board, and Attorney General of Ontario, Defendants

Before: Koehnen J.

Counsel: Howard J. Wolch for the plaintiff Daniel Mayer, Michelle Valentini for the defendant Attorney General of Ontario Natalie D. Kolos for the proposed defendant Toronto Police Services Board Carol Jenkins for the Children’s Aid Society of Toronto

Heard: June 14, 2024 with further written submissions June 18, July 4, 2024

Endorsement

[1] The plaintiff moves under section 17(2) of the Crown Liability and Proceedings Act, 2019 (the “CLPA”) for leave to continue this proceeding against the Attorney General of Ontario.

Background Facts

[2] The action arises out of charges laid against AC in 2017 for three counts of sexual interference, four counts of sexual touching, two counts of incest, two counts of making sexually explicit material available to a minor, and two counts of sexual assault. The charges related to sexual misconduct in which AC allegedly engaged with his daughter WMC when she was 4 to 6 years old and 9 to 12 years old.

[3] When the charges were laid, AC and his former wife, CM, were involved in matrimonial proceedings in which CM was seeking significantly increased child support payments from AC. The family dispute between AC and CM was known to all of the defendants, including the Crown.

[4] The trial of the plaintiff resulted in a mistrial after which, on or about August 19, 2021, the Crown withdrew all charges against AC on the basis that there was no reasonable prospect of obtaining a conviction.

The Motion

[5] AC brings this claim against the Attorney General of Ontario, the Children’s Aid Society, and the Toronto Police Services Board. This motion concerns only the action against the Attorney General.

[6] Section 17(2) of the CLPA requires a plaintiff who seeks, among other things, a remedy for misfeasance in public office or any other tort based on bad faith in respect of the exercise of a public office to obtain the court’s leave to proceed. Section 17 (7) provides that the court shall not grant leave unless, among other things, it is satisfied that:

(b) there is a reasonable possibility that the claim described in subsection (1) would be resolved in the claimant’s favour.

[7] In the context of a similarly worded provision under section 138.8 (1) of the Securities Act, the Court of Appeal for Ontario has held that the purpose of the section is to weed out claims without any chance of success and permit those with “some chance of success” to proceed. Green v Canadian Imperial Bank of Commerce, 2014 ONCA 90 at para 88, aff’d 2015 SCC 60. In cases applying the CLPA in the context of actions against the Attorney General for malicious prosecution, leave has not been granted in the absence of evidence of malice. Goulbourne v HMQ in Right of Ontario, 2021 ONSC 7064 at para. 30; Yadeta v The Regional Municipality of Peel Police Services Board, 2023 ONSC 6387, aff’d 2024 ONCA 341 at para. 9.

[8] In his/her capacity as Crown prosecutor, the Attorney General is immune from civil liability except for the tort of malicious prosecution and related Charter claims for wrongful nondisclosure of information. Henry v British Columbia (Attorney General), 2015 SCC 24. Similarly, the Attorney General is not subject to claims for misfeasance in public office in its capacity as prosecutor. Ontario (Attorney General) v Clark, 2021 SCC 18 at paras 52-53.

Analysis

[9] The essence of the plaintiff’s claim against the Attorney General is for malicious prosecution. To succeed in an action for malicious prosecution, AC will be required to prove that the prosecution was: (1) initiated by the Crown; (2) terminated in his favour; (3) undertaken with no reasonable and probable cause; and (4) motivated by malice or a primary purpose other than carrying the law into effect. Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339 at para. 3.

[10] The issue on this motion involves the third and fourth factors, that is to say whether the there was a reasonable and probable cause to prosecute and whether the Crown was motivated by malice in continuing with the prosecution.

[11] To obtain leave to proceed, the plaintiff must show a “reasonable possibility” of success in the action. Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18 at para. 38. This requires sufficient evidence to persuade the court that there is a reasonable possibility that the action will be resolved in the plaintiff’s favour. Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18 at para. 38. This is a meaningful but low merits-based threshold which prevents cases without merit from proceeding. Vecchio Longo Consulting Services Inc. v. Aphria Inc., 2021 ONSC 5405 at para. 84.

[12] The plaintiff raises a number of arguments in support of its claim for malicious prosecution.

[13] First, the plaintiff alleges that the prosecution was malicious because the Attorney General proceeded with the trial against the plaintiff even though the judge presiding over the preliminary hearing had expressed concerns about frailties in the evidence and had encouraged the Crown prosecutor at the preliminary hearing to discuss those frailties with her superiors to determine whether the case should proceed. While that is correct, it does not give the full picture of the preliminary hearing judge’s views. At the end of the preliminary hearing she stated:

I’m satisfied that there is sufficient evidence pursuant to U.S.A. and Sheppard to commit [AC] for trial on all counts. It’s not my role at this time to comment on credibility. That’s outside of my jurisdiction. I just have to consider whether there is some evidence upon which a – a jury properly instructed could return a guilt – a verdict of guilt, notwithstanding the frailties in the evidence before us, and so I am going to commit you to stand trial for the Superior Court at the next sittings…

[14] In addition, the plaintiff conceded to being committed to stand trial.

[15] The fact that a judge commented on frailties in evidence but still found there was enough evidence on which a jury could convict, does not turn the Crown’s continuation of the prosecution into a malicious prosecution. There are many cases with frailties in the evidence. That is ultimately what trials are for, to make determinations based on evidence, frail though it may be.

[16] The plaintiff’s arguments focus on what he says are inconsistencies in WMC’s evidence that should have led the Crown to discontinue its case. I do not need to delve into the details of those inconsistencies. They were raised at the preliminary hearing. The preliminary hearing judge nevertheless concluded that the matter should proceed to trial.

[17] Moreover, the plaintiff’s submission that the Crown should not have believed WMC because of alleged inconsistencies in her statement perpetuates a culture of disbelief that revictimizes survivors of sexual assault. Inconsistencies in the testimony of child sexual assault victims are not uncommon. There is a whole body of law on how courts should address those inconsistencies. See for example: R v W (R), 1992 SCC 56, [1992] 2 SCR 122 at pp 133-134; R v FP, 2005 ONCA 23218 at paras 11-15; R v C (G), 2006 ONCA 18984, 2006 CarswellOnt 3413 at para 22, R v GL, 2020 ONSC 1511 at para 26. That in and of itself demonstrates that many cases have gone to trial notwithstanding inconsistencies. The simple fact that the Crown advances a case to trial in the face of inconsistencies in evidence does not amount to evidence of malice.

[18] In a similar vein, the plaintiff argues that “there was no forensic or physical evidence to substantiate that any crime had been committed.” That is also not evidence of malice. Many sexual assault convictions arise in the absence of forensic or physical evidence because a judge or jury is “entitled to accept a complainant’s evidence whether it is independently confirmed or not.” R v Letlow, 2021 ONCA 915 at para 11; JH v Windsor Police Services Board et al, 2017 ONSC 6507 at para 6.

[19] To demonstrate an absence of reasonable grounds to prosecute to support a civil suit like this one, the plaintiff must show that there was “overwhelming evidence” at the time of the prosecution discrediting WMC. This rigorous threshold ensures that the testimony of a sexual assault victim is not dismissed lightly at the outset and that their accounts are given due consideration within the judicial process. HA v SM, 2021 ONSC 3170 (Div Ct) at paras 17-22, citing JH; BK v Chatham-Kent Police Services Board, 2019 ONSC 4780 at paras 61-65, aff’d 2020 ONCA 180; GS v Toronto Police Services Board, 2022 ONSC 3621 (Div Ct) at paras 43-45; TB v HMQ, 2023 ONSC 6939 at para 52.

[20] Next the plaintiff submits that the prosecution was malicious because the Crown did not disclose information to the defence in a timely manner. This ultimately led the trial judge to declare a mistrial. It is clear from the trial transcript, however, that the information referred to was information that came out for the first time during a witness’ testimony at trial. By way of example, the plaintiff’s former wife and the complainant testified at trial that they had certain emails or photographs. They brought those documents to trial and gave them to the Crown while testifying. The Crown immediately shared them with the defence. The Crown did not know of those documents before the witnesses testified about them at trial. Although that might be grounds for a mistrial, it is not grounds for malicious prosecution. In declaring the mistrial, the trial judge indicated that she was “not blaming anyone” for the late disclosure.

[21] It appears that the most salient “nondisclosure” arose during the plaintiff’s own testimony at his criminal trial. During his evidence he stated that the sexual assaults that his daughter alleged against him could not have occurred at the times and places that his daughter alleged because, at that time, the plaintiff was having violent altercations with his second wife in respect of which the police were called. The plaintiff testified at trial that he did not want his daughter to witness those events as a result of which is daughter was not staying with him at the time. While he was giving that evidence, an investigating officer in the courtroom pulled police occurrence reports of those altercations. It appears that the occurrence reports in fact demonstrated that the daughter was present at the time. The police and the Crown immediately disclosed the reports to defence counsel.

[22] The plaintiff relies heavily on the fact that, in her ruling on the mistrial, the trial judge said she did not understand why the occurrence reports had not been produced earlier because, in her experience, police look for occurrence reports involving an accused and produce them. Despite that statement, the trial judge went on to say that she was not blaming anyone for the late disclosure but that it was simply an unfortunate circumstance.

[23] The trial judge also noted that the plaintiff’s defence counsel at trial had also acted as defence counsel for the second wife in matters arising out of the altercations in respect of which the occurrence reports were produced. The trial judge added, however, that she did not expect the defence lawyer to have recalled that by the time of the plaintiff’s criminal trial.

[24] The trial judge also noted that the plaintiff’s expression of lack of confidence in his defence lawyer during the criminal trial was an additional factor that led to the mistrial.

[25] The plaintiff next argues that the police and the Crown are one and the same for purposes of disclosure. R. v. Burgher, 2014 ONSC 3239 at paras. 12-14. That principle may well make good sense in the context of a stay of proceedings where the police has failed to provide adequate disclosure. In that context, the Crown cannot claim to be entitled to continue the prosecution because it is separate from the police and was not the party responsible for the absence of disclosure. The motion before me today, however, raises an entirely different issue. On the motion before me the plaintiff must provide some evidence of malice on the part of the Crown. Malice and bad faith involve a state of mind. The Attorney General cannot possibly have any state of mind with respect to documents of which it was unaware.

[26] The plaintiff tried to rebut that argument by submitting that the Crown has a duty to investigate. The law is, however, to the contrary. In R. v. McNeil, 2009 SCC 3, [2009] 1 SCR 6, the Supreme Court of Canada noted that

“…the general duty to investigate crime falls on the police, not the Crown. The fruits of the investigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, by the police. …. The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary duty of police investigators to disclose to the Crown all relevant material in their possession. R. v. McNeil, 2009 SCC 3, [2009] 1 SCR 6 at para. 23; Kvello v. Miazga, 2007 SKCA 57 at para. 114, 223 rev’d on another point Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339.

[27] In Smith v. Ontario (Attorney General), 2019 ONCA 651, Tulloch J (as he then was) explained the basis and need for the separation of the investigative powers of the police from the prosecutorial powers of the Crown. Separation maintains the independence and objectivity of each. Separation also enhanced the Crown’s ability to make an independent, objective judgment about whether a case should be advanced to prosecution. Having the Crown involved in the investigation of offences would jeopardize that independence and objectivity. During argument, counsel for the plaintiff insisted that the Crown did have a duty to investigate but could point to no authority to that effect. I provided plaintiff’s counsel the time he wanted to produce authorities to that effect. Plaintiff’s counsel made additional submissions to this effect on June 18, 2024. In my view, those additional submissions do not add to the analysis.

[28] The plaintiff points to s. 11 (a) of the Crown Attorneys Act which requires Crown Attorneys to “where necessary cause such charges to be further investigated and additional evidence to be collected…”. The plaintiff also points to authorities that say where material deficiencies are brought to the attention of the Crown, including information pertaining to credibility and reliability of a witness, the Crown is obligated to request that police investigate further. The plaintiff, says the Crown cannot throw up its hands or turn a blind eye to a material aspect of a case. R. v. Brown, [1998] O.J. No. 4682 at paras. 36 and 37; R. v. Navaratnam, 2021 ONCJ 28 at para. 18; R. v. R.T., 2024 ONSC 839 at para. 53.

[29] Although those authorities may speak to the general duties of the Crown, they do not speak to the issue of malice or bad faith. A failure to investigate is generally not an indication of malice because the Crown does not have a duty to investigate. Kvello v Miazga, 2007 SKCA 57, at para 114, 223 aff’d 2009 SCC 51 at para 91; McNeil at para 23. Even if the crown here acted negligently because it did not insist that the police pull occurrence reports in respect of the plaintiff or Crown witnesses, negligence does not amount to malice or bad faith.

[30] As the Supreme Court of Canada explained in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339, malice does not include recklessness, gross negligence or even poor judgment. The plaintiff must prove an abuse of power or a fraud on the criminal justice system, such that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General. Ibid. at paras 8, 89. There are very few successful cases, and when they are successful, the acts of malice are exceptional, such as proceeding with a prosecution despite being aware of an obvious conflict of interest and using the prosecutorial function to advance that interest. Proulx v Quebec (Attorney General), 2001 SCC 66 at para 43; Johnson v Coppaway, 2004 ONSC 9755 at paras 22-35. There is no such conduct in this case.

[31] In view of the foregoing, I dismiss the plaintiff’s motion for leave to proceed with the action against the Attorney General of Ontario.

[32] Any party seeking costs arising out of these reasons will have three weeks to deliver written submissions. The responding party will have two weeks to deliver its answer with a further one week for reply.

Released: July 10, 2024 Koehnen J.