DATE: 20010118

DOCKET: C30682

COURT OF APPEAL FOR ONTARIO

BORINS, MACPHERSON AND SHARPE JJ.A.

BETWEEN: )

MICHAEL ONIEL ) Michael Oniel ) for the appellant (Plaintiff/Appellant) )

and )

JACK MARKS, CHIEF OF POLICE OF ) Andrew M. Stikuts THE MUNICIPALITY OF ) for the respondents METROPOLITAN TORONTO POLICE ) FORCE, THE ESTATE OF ) JAMES HUGHES (now deceased) and ) MARK HEGENAUER ) (Defendants/Respondents) ) Heard: June 2, 2000

On appeal from the judgment of Justice William P. Somers dated June 12, 1998 and September 22, 1998.

BORINS J.A.:

[1] This is an appeal by Michael Oniel from the judgment of Somers J., consequent to the answers of a jury to the questions submitted to them, dismissing his claim for damages for malicious prosecution, and from the subsequent judgment of the trial judge dismissing his claim for damages for a constitutional tort. The appellant has also appealed from the trial judge’s refusal to put before the jury, or to decide himself, a claim against the respondents for negligent investigation.

[2] As I will explain, it is my view that the trial judge erred in instructing the jury with respect to the elements of malicious prosecution. Generally speaking, this would necessitate the ordering of a new trial. However, based on the reasons that I will give, in the circumstances of this appeal, I would not order a new trial, which would be the appellant’s third trial. Rather, I would exercise the powers available to this court under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c.C.43 and award judgment to the appellant in the amount assessed by the jury.

Background

[3] It was the allegation of Frank Cantero that on April 8, 1985 the appellant robbed him of a wrist watch and $40.00 in the Times Square Bookstore on Yonge Street in Toronto and, shortly thereafter, assaulted him in another Yonge Street establishment known as Cinema 2000. Mr. Cantero reported these incidents to the police two days later. On April 29, 1985, when Mr. Cantero saw the appellant in a record store, he found a police officer who arrested the appellant and took him to the police station where the respondents, Sergeant Hughes and Constable Hegenauer, were asked to investigate the complaint. They interviewed the appellant and Mr. Cantero, who was also in the police station, and caused the appellant to be charged with robbery, of which he was ultimately acquitted.

[4] At the trial before Somers J. it was conceded by the respondents that they had initiated the prosecution of the appellant and that the prosecution terminated in the appellant’s favor. The issues were whether the respondents had reasonable and probable cause for commencing the prosecution and, subsequently, for continuing it, and, if not, whether they were actuated by malice in respect to the commencement or the continuation of the prosecution.

[5] In assessing the correctness of the trial judge’s instructions to the jury and in understanding the jury’s answers to the questions they were asked to answer, it is helpful to provide an overview of what occurred between the appellant’s arrest and his trial. However, before doing so it is convenient to reproduce the questions that were put to the jury and their answers:

1.Q. Did the defendant, Hughes, have reasonable and probable cause for commencing the prosecution of the charge of robbery against Mr. Oniel. Answer Yes or No.

A. Yes.

2.Q. Did the defendant, Hughes, have reasonable and probable cause for continuing in the said prosecution. Answer Yes of No.

A. No.

3.Q. Did the defendant, Hegenauer, have reasonable and probable cause for commencing the prosecution of the charge of robbery against Mr. Oniel. Answer Yes or No.

A. Yes.

4.Q. Did the defendant, Hegenauer, have reasonable and probable cause in continuing in the said prosecution. Answer Yes or No.

A. No.

5.Q. If your answer to question number 1 was “No”, was the defendant, Hughes, actuated by malice in relation to the commencement of the said charges. Answer Yes or No.

Unanswered.

6.Q. If your answer to question number 2 was “No”, was the defendant, Hughes, actuated by malice in continuing in the said prosecution. Answer Yes or No.

A. No.

7.Q. If your answer to question number 3 was “No”, was the defendant, Hegenauer, actuated by malice in relation to the commencement of the said charge. Answer Yes or No.

Unanswered.

8.Q. If your answer to question number 4 was “No”, was the defendant, Hegenauer, actuated by malice in relation to the continuing of the said charge. Answer Yes or No.

A. No.

9.Q. Regardless of how you have answered questions 1 to 8 in what amount do you assess the damages of the plaintiff.

Special damages –

1. Legal fees $ 15,500

2. Medical expenses nil

3. Out-of-pocket transportation, etc. 1,000

4. Loss of income to date 42,000

General damages –

Pain and suffering 12,500

Aggravated damages - 4,000

Loss of interest and capital nil

Costs of borrowing nil

Total $ 75,000

Future – Lost income nil

[6] The course which the prosecution took discloses two discrete stages. The first stage began with the initiation of the charge by the respondents based on information provided by Mr. Cantero, and continued until the appellant’s committal for trial. The second stage was the continuation of the prosecution thereafter until the appellant’s eventual trial and acquittal. During this stage of the prosecution, the appellant was represented by an experienced criminal lawyer, Paul Copeland.

[7] The first stage of the proceedings was initiated by the allegations made by Mr. Cantero. The facts relating to the alleged offence were within the knowledge of Mr. Cantero. At this stage of a prosecution it is very difficult, if not virtually impossible, for a police officer to exercise any independent discretion or judgment. Although the information provided by a complainant may in fact be false, if, applying the appropriate legal test it can be said that the officer had reasonable and probable cause to commence a prosecution, the plaintiff has failed to establish an essential element of the tort of malicious prosecution, and his or her action will fail. In this appeal, it is not surprising that the jury found no fault with the respondents’ conduct relative to the first stage of the proceedings. They found that the respondents had reasonable and probable cause for commencing the prosecution.

[8] The second stage of the proceedings occurred after Mr. Copeland’s intervention and, as I will describe, his strong assertion that if the respondents were to investigate certain factors which he outlined, they would determine that Mr. Cantero’s allegations against the appellant were likely false. In correspondence to the Crown Attorney, he asserted that if the allegations were found to be false, the respondents would lack reasonable and probable grounds to continue the appellant’s prosecution. The jury appears to have accepted Mr. Copeland’s testimony as they found that the respondents did not have reasonable and probable cause to continue the prosecution and assessed the appellant’s aggravated damages at $4,000.00. However, the jury found that the respondents were not actuated by malice in continuing the prosecution.

[9] On the basis of the evidence and their finding with respect to aggravated damages, it seems anomalous that the jury failed to find malice. This was likely because of the inadequacy of the trial judge’s instructions with respect to malice. Indeed, counsel for the respondents conceded that the trial judge had erred in his instructions on malice, but urged the court to exercise its power under s. 134(6) of the Courts of Justice Act, and find that the error caused no substantial wrong or miscarriage of justice. For the reasons which follow, I do not agree with counsel’s position in respect to the application of the proviso.

The Facts

[10] I intend to review the essential facts and then to examine in some detail the testimony of three witnesses – Mr. Copeland, Constable Hegenauer and Gerald Lapkin – for the purpose of placing the trial judge’s instructions on malice in a proper context.

[11] The appellant was arrested and charged with robbery in April, 1985. From the start, he protested his innocence. The respondent police officers relied on the positive identification of the alleged victim and conducted no further investigations before charging the appellant. From the time of his arrest, the appellant asked the police to interview two potential witnesses. The first was his hairdresser. The appellant said she would support his story that at the time of the alleged robbery his hair was long and not short as described by the complainant. The second was the employee of the store where the robbery was alleged to have occurred and to whom Mr. Cantero said he had complained at the time. The respondents took no steps to conduct any further investigation.

[12] The appellant was committed for trial on the basis of the complainant’s evidence after a preliminary inquiry. Thereafter, the appellant’s trial counsel, Mr. Copeland, wrote to the senior Crown Attorney and pointed out a number of significant inconsistencies in various versions of the alleged robbery that had been offered by the complainant. The senior Crown Attorney asked the respondent Hughes to look into the matter. The respondents appear to have made some inquiries but they did not report any details to the Crown Attorney. They simply asked that the prosecution be continued on the basis that the complainant continued to insist that the appellant was the perpetrator of the robbery. A senior police officer, Sergeant Mahoney, was asked to review the matter and he reported that the “proper procedure has been followed throughout and the case is properly prepared.”

[13] The appellant was found not guilty by a jury and acquitted of the robbery charge in December, 1986. He commenced this action for malicious prosecution in May, 1987, alleging that the respondent police officers failed to conduct an adequate investigation and alleging that a fuller and unbiased investigation by them would have revealed his innocence. The respondents served a jury notice. The matter proceeded to trial in April, 1993, and the action was dismissed.

[14] In July, 1995 this court allowed an appeal from the judgment and directed a new trial: [1995] O.J. No. 222. The appeal was allowed on the ground that the trial judge erred in failing to instruct the jury that the respondents could be liable for malicious prosecution if the jury found that, even though they had reasonable grounds for charging the appellant, they had persisted with the prosecution after discovering that there was no basis for the prosecution. Before the second trial was held, the appellant moved to amend the statement of claim to include a claim for damages for breach of Charter rights. His motion was dismissed in May, 1997. In September, 1997, this court reversed that order and held that the amendment should be allowed: [1997] O.J. No. 3886. The respondents unsuccessfully sought to leave to appeal to the Supreme Court of Canada from that decision.

[15] The second trial, the subject of the present appeal, took place in June, 1998. The trial judge left the issue of malicious prosecution with the jury and decided the issue of the alleged Charter breach on his own. The appellant, who was acting on his own behalf, but with the assistance of Professor Alan Young, also asked the trial judge to consider a claim for damages for negligent investigation. The trial judge accepted that there was an independent action in tort against the police for negligent investigation, but found that, as the appellant had not specifically pleaded that tort, it could not be considered.

[16] Mr. Copeland’s testimony was central to the appellant’s case. He represented the appellant subsequent to his preliminary hearing and at his trial before Humphrey J. in December, 1986, where the jury took ten minutes to return a verdict of not guilty, no doubt vindicating Mr. Copeland’s opinion, as I will explain, concerning the weakness of the case for the prosecution. He took over the appellant’s file from his previous lawyer in July, 1986, and investigated the circumstances surrounding the robbery charge against the appellant. He wrote a series of letters to Gerald Lapkin, who was at that time a senior assistant Crown Attorney who held a supervisory position in respect to prosecutions conducted at the Courthouse at 361 University Avenue. In letters written to Mr. Lapkin on November 11, 1986 and November 27, 1986, Mr. Copeland provided information which led him to believe Mr. Cantero had been untruthful and to reach the opinion that the prosecution should be discontinued.

[17] In his letter of November 11, 1986, Mr. Copeland outlined a number of factors which, in his opinion, cast serious doubt on the credibility of Mr. Cantero, including his criminal record and two robbery allegations against other individuals which he had made in 1983. In particular, he referred to the information that he had obtained from an employee of the Times Square Bookstore that made it highly unlikely that a robbery had occurred in the store as alleged by Mr. Cantero. He advised Mr. Lapkin that the employee had also provided the information to Sergeant Hughes. The information to which Mr. Copeland referred was in the form of a statutory declaration given by the employee, Mr. Gallagher.

[18] In his letter dated November 27, 1986, Mr. Copeland reviewed what he considered to be serious inconsistencies in the testimony which Mr. Cantero gave at the preliminary hearing when compared with the accounts of the alleged robbery which he had given to the police. He explained that although it was not his usual custom to make submissions about the merits of a prosecution “going ahead”, he outlined the reasons why he believed the appellant’s prosecution should not proceed. He also wrote: “To continue with the prosecution will make the police and the Crown part of a malicious prosecution instigated by Mr. Cantero.”

[19] On November 27, 1986, Mr. Copeland delivered copies of his letters to Mr. Lapkin of November 11 and 27 to Sergeant Hughes. He told Sergeant Hughes that given the contents of the letters, it was his view “that to allow this prosecution to continue would be highly improper”. He asked Sergeant Hughes to contact the Crown Attorney “in order that a decision may be made concerning the prosecution”. Mr. Copeland testified that he had received a telephone call from Sergeant Hughes on November 28, 1986 in which he said that he was going to continue with the prosecution. The trial date was set for December 1, 1986, although the trial did not begin until December 15, 1986.

[20] On November 27, 1986, Mr. Copeland also sent copies of his November 11 and 27 letters to Mr. Lapkin to Jack Marks, who was the Chief of Police at the time. In his covering letter to Chief Marks, he repeated what he had written to Sergeant Hughes concerning his exposure to a malicious prosecution action, and added: “My client has asked me to write to you in order that you will be aware of our concerns of the police handling of this matter and in an attempt to ensure that a proper decision is made on whether to proceed with the trial on December 1, 1986.”

[21] Sergeant Hughes died before the trial. Consequently, Constable Hegenauer testified about the role he and Sergeant Hughes played in the investigation of the alleged robbery from the time of the appellant’s arrest on April 29, 1985, three weeks after the alleged robbery. His evidence was that the appellant had been identified on the street to two police officers as the man who had robbed Mr. Cantero three weeks earlier. They arrested the appellant and brought him to the police station where he was interviewed by the respondents. Mr. Cantero was also at the station. The appellant gave a statement in which he vigorously denied any involvement with Mr. Cantero. The respondents also interviewed Mr. Cantero. Constable Hegenauer testified that he formed the opinion that an offer had been made for a sexual favor and that something had gone wrong and that “perhaps Cantero refused to pay”. He testified that in charging the appellant he was influenced by a report in the police files that on October 31, 1982 the appellant had been involved in a “very, very similar occurrence” in a theatre. He testified that this report “certainly didn’t help the [appellant’s] credibility”. The trial judge admitted the report over the appellant’s objection, stating he would give the jury some form of limiting instruction concerning it.

[22] Constable Hegenauer described the following incident that occurred during the investigation:

You’ve got a robbery that takes place. Twenty days afterwards, the victim points the suspect out to the two police so there is a great i.d. right there. During the investigation and while Mr. Oniel was at the station, Sergeant Hughes at one point takes Cantero who is now in another part of the office, actually in a waiting room, pulls him into the interview room and there is a face to face confrontation done with Hughes, Cantero and Oniel and Hughes is asking Cantero, ‘Is this the guy that robbed you’. Cantero says, ‘Yes, it is’.

In my view, two experienced police officers should have known that, while admissible, identification evidence of this nature will not to be accorded any significant weight.

[23] Mr. Oniel, who did not have the assistance of counsel, conducted a lengthy cross-examination of Constable Hegenauer during which he testified that the statement that had been taken from Mr. Cantero had been lost and that he did not make any investigations at the book store. He said that even though he discovered that Mr. Cantero had a criminal record in his own name and under the alias of Lopez, which indicated that Mr. Cantero had lied to the police, he nevertheless believed Mr. Cantero and did not feel it was necessary to conduct an investigation at the book store, nor at Cinema 2000, at the time of the arrest. He admitted going to the book store at the instructions of the Crown Attorney, possibly in October, 1986, but could not remember if he carried out any investigation between April 29, 1985, when the appellant was charged, and January 11, 1986 when the preliminary hearing took place.

[24] Constable Hegenauer acknowledged that he could have recommended to the Crown Attorney up to the date of the appellant’s trial that the prosecution be stopped. He further acknowledged that he and Sergeant Hughes had read and discussed the letters which Mr. Copeland had written to Mr. Lapkin, and that the letters did not change their views about the prosecution continuing.

[25] As a result of Mr. Copeland’s letters, Mr. Lapkin requested that a report be prepared by the police in respect to the prosecution. It was prepared on December 1, 1986 by Sergeant James Mahoney and became an exhibit at the trial even though Sergeant Mahoney did not testify. In Sergeant Mahoney’s opinion there were no grounds on which the appellant could pursue a civil action against any police officers “for their involvement in this matter”. A review of the report discloses that it was not responsive to any of the issues raised by Mr. Copeland. During his cross-examination, Constable Hegenauer volunteered that he had read the report and that it formed one of the reasons why he and Sergeant Hughes did not recommend putting an end to the prosecution. He said that the report indicated “there was plenty of evidence and that we should continue on with the prosecution”.

[26] Mr. Oniel, correctly in my view, sought to cross-examine Constable Hegenauer about the deficiencies in the report. The appellant succeeded in obtaining his concession that the report was silent about the theft of a watch, Mr. Cantero’s alias and the evidence of the employee of the book store which contradicted Mr. Cantero’s position that he had complained to him about the robbery. Counsel for the respondents objected to the cross-examination on the ground that the report’s author was not “here”. The trial judge gave effect to the objection and precluded the appellant from asking any further questions concerning the report’s deficiencies. This was a very important avenue of cross-examination which should have been allowed to continue as its purpose was to illustrate that the respondents, in failing to recommend putting an end to the prosecution, had relied on a report which failed to respond to any of the important evidentiary deficiencies raised by Mr. Copeland. This cross-examination had a direct bearing on the respondents’ reasons for not recommending to the Crown Attorney the termination of the prosecution and, as such, went to the issue of malice. This was not the only error which the trial judge made that unduly limited the appellant’s right to present facts essential to his case.

[27] The second and related error arose from further evidential rulings made by the trial judge during the testimony of Constable Hegenauer. Counsel for the respondents sought to examine the respondent Hegenauer on the information he obtained as a result of speaking with the appellant’s hairdresser. The trial judge refused to allow this on the ground that it was hearsay. The appellant cross-examined Constable Hegenauer on his interview with the book store employee, but in view of the trial judge’s ruling with respect to the interview with the hairdresser, expressly refrained from asking the witness what he had been told “because this may be hearsay”.

[28] In my view, the trial judge erred in excluding evidence as to what the respondents were told by these potential witnesses. Such evidence would have been inadmissible hearsay if tendered to prove the truth of what the potential witnesses said. This would be the case, for instance, if the Crown attempted to lead such evidence at a criminal trial to prove the guilt of the accused. However, in the context of a civil trial for malicious prosecution, the facts gleaned by the respondents were plainly relevant to the issues of reasonable and probable cause and malice. The evidence as to what the respondents had been told was admissible on the central issues of the nature and adequacy of the investigation they conducted, the basis they had for recommending to the Crown that they prosecute the appellant and whether or not they acted with malice. The evidence was not being led to prove the truth of the witnesses’ statements, but rather to show that the information formed the basis of the decision of the respondent police officers to recommend the continuation of the prosecution.

[29] There is some indication in the record as to what Constable Hegenauer would have said about these interviews. It seems likely that the respondents thought that the substance of the interview with the hairdresser would have helped their case as they sought to lead the evidence. However, the appellant clearly thought the evidence would assist his case. He included in the appeal book an extract from Constable Hegenauer’s evidence at the first trial, stating that the hairdresser told him she had cut the appellant’s hair as he claimed, but describing the length of his hair as “to the collar” rather than as “to the shoulder”, as asserted by the appellant. While the appellant says her statement supported his story at the first trial, the respondents said the discrepancy as to hair length refuted it. The appellant has also included in the book of exhibits an affidavit from the store employee that was tendered at trial but not entered as an exhibit and not put before the jury. If the store employee told the respondents what he related in his affidavit, it clearly would have assisted the appellant, a fact borne out by an admission made by Sergeant Hughes on discovery, read in at trial, that the store employee’s version “bothered” him. In my view, it cannot be said with any degree of assurance that the exclusion of this evidence was harmless.

[30] At the time of this trial, Gerald Lapkin was an Ontario Court Judge. He had no independent recollection of his involvement in the appellant’s prosecution. However, his recollection of the prosecution was revived somewhat by the correspondence and communication which had taken place with Mr. Copeland. He recalled that as a result of Mr. Copeland’s intervention, he had made it clear to Sergeant Hughes that he should carry out a further investigation, but he did not recall whether Sergeant Hughes had followed his instructions. Judge Lapkin acknowledged, based on a memo he had written to the file, that he had talked to Sergeant Hughes who said that he “will consult with [the] victim but feels [the] case should proceed if the victim so desires”. In answer to questions from the trial judge, Judge Lapkin testified that although it is for the Crown Attorney to make the final decision whether a prosecution will proceed to trial, he added:

It would be unrealistic to assume that the police don’t have a significant role to play in a prosecution in which they have done the full investigation and so forth.

He went on to say that in proceeding to trial, a Crown Attorney would consider the advice of the officer in charge of the prosecution as persuasive, or influential, but not as determinative.

Instructions to the Jury

[31] It is helpful to analyze the trial judge’s instructions to the jury, particularly those aspects that focussed on the element of malice. He reviewed the elements of malicious prosecution early in his instructions. He described malice in the following manner:

The next element that must be established, I told you there were four, is that the burden is on the plaintiff to establish that the proceedings were instituted with malice in a malicious spirit, that is, for an indirect or improper motive and not in furtherance of justice. As with the commencement of the action, the question of whether or not the proceedings were continued in a malicious spirit, the laying of the charge proceeding to the preliminary inquiry and the eventual bringing the matter on for trial. [Emphasis added.]

[32] In the second sentence in the above excerpt, the trial judge was referring to the second stage of the prosecution – its continuation after Mr. Copeland became the appellant’s trial counsel. Although at this stage in his instructions it may not have been clear to the jury what was being said, it no doubt became clear to the jury shortly thereafter when the trial judge reviewed the questions the jury would be required to answer. He explained that the jury would have to consider whether the defendants were “actuated by malice” in both initiating and in continuing the prosecution.

[33] The trial judge then explained the meaning of “reasonable and probable cause” in respect to commencing the prosecution against the appellant. He reviewed some of the evidence bearing on this issue, including the information which the respondents had obtained from Mr. Cantero about the identity of the man he had claimed had robbed him. Although he did not make a clear distinction that he was moving on to review the evidence relative to whether the defendants had reasonable and probable grounds to continue the prosecution after Mr. Copeland’s intervention, he nevertheless did so.

[34] The trial judge’s review of this evidence covers 10 pages of the transcript. In the course of this review he placed some emphasis on a report that had been entered as an exhibit during the trial. This document, which is dated October 31, 1982, was the record of the appellant’s arrest for assault causing bodily harm arising from an alleged incident that had taken place in the washroom of a movie theatre, the admissibility of which was unsuccessfully challenged by the appellant. As I will explain, the evidentiary value of this record raises a separate issue. The trial judge dealt with it as follows:

The police did become aware, and this is Exhibit 58, and Mr. Oniel pointed out that the document which refers to the earlier incident in which he was involved with the police is not entered as proof of the fact in it. It is a document which states what the officer who filled it out was told and it is not proof of its contents. However, it does contain a suggestion of a recital of alleged facts that have a similarity to the ones that form the background of the charge against Mr. Oniel that was then pending. You have heard that at the Times Square Bookstore there are private booths in the back and you have heard evidence from Officer Hegenauer that these booths are known to police as forming meeting places or places of assignation for homosexuals. That does not mean, and you should not take it to mean, that that is the reason Mr. Oniel was there. In fact, in his evidence he said these movies are actually heterosexual.

If you look at the earlier incident, it occurred in a washroom in a theatre and according to what is contained in that document, Mr. Oniel and another man were in a booth, a toilet, when a third one pounded on the door asking for them to vacate so that he could use it. There was then a scuffle. Now again, that does not necessarily mean that anything improper was going on, but in the mind of an arresting officer, an officer who was in charge of the case who reads that and knows what he has been told has happened at Times Square may see a similarity between the two. That is the position of Officer Hegenauer. It lended more credence to the charges that had been brought against Mr. Oniel. That is his position.

Now I hasten to say that both what he said and what was read into the record, what Sergeant Hughes had to say as to their opinion as to what took place is not evidence. They were asked their opinions, and interestingly enough, they came up with different opinions. I do not want to get into too much detail about that because I do not want to give it an air of credence other than to say it appeared to Sergeant Hughes that there was some sort of a staking out of territory. It appeared to Officer Hegenauer that there may have been some sort of commercial arrangement between Mr. Oniel and Mr. Cantero involving sex. That is not evidence, as I say, except to the extent that that was what on their minds, and I leave it to you to decide whether you feel that they had reasonable and probable cause to reach that conclusion. That in doing so did it lend any sort of support to the allegations in the charge against Mr. Oniel and should they have continued with the charge. [Emphasis added.]

[35] Next the trial judge returned to the element of malice. His complete instructions were as follows:

Now I want to turn to the question of malice because that is the other element and you will see that word in the questions which you are asked to answer. I have been over these with you, “whether either of the defendants was actuated by malice either in the laying of the charge or in the continuing of it”. If the plaintiff is to succeed in the question of malice, he must satisfy you that the defendants were actuated by malice in initiating a prosecution or in carrying it through. What does malice mean in this context? The prosecution has been initiated or carried out maliciously if it was done for a purpose other than bringing an offender to justice but out of personal ill will, spite or for selfish purposes and with reckless disregard to the rights of the person accused. You can take into account any of the factors that you feel bear on that question, that is, any of the evidence that you have heard that you accept that says to you, “Yes. They were behaving maliciously in doing this. They did this with malice.”

Mr. Oniel has postulated a theory that the police having laid this charge and having, to use his expression, ‘messed up in the investigation’, felt that they should carry it through simply to justify their having done so. I have told you what the police position is, “We had a positive identification. We had apparent similar facts which gave some credence to this story”, which suggested to them, in any event, there were some homosexual overtones which could well have led to the type of fight that took place. The matter was sent on for trial by a judge albeit with the lesser burden of simply determining whether or not there was sufficient evidence to justify it going to trial. They continued in the view, so they say, that the matter should go ahead.

Now, a police officer can be sloppy in his or her word. [sic] We will say “his” in this case because we are dealing with two male police officers but unless you find that they acted with malice for some improper purpose in order to do harm to the plaintiff or from spite or for some ill will they bore him, then malice is not going to stand. If you find the defendant did not have probable cause for believing the plaintiff at the time when they initiated the prosecution or carried it through, you may find the defendants acted maliciously. You are not required to do so. If you feel that the defendants persevered in the prosecution after acquiring positive knowledge of the plaintiff’s innocence, that is certainly something you would want to consider in determining whether or not there was malice. [Emphasis added.]

There is likely a typographical error in the first sentence of the final paragraph. It is probable that the trial judge said “work” and not “word”.

[36] The concluding part of the instructions dealt with damages.

[37] Mr. Oniel raised several objections to the charge to the jury. Among his objections was one related to the reference to the charge which had been brought against him in October, 1982 and the use by the trial judge of the word “homosexual” four times during his instructions. It was the appellant’s position that he was prejudiced by the reference to the charge and the use of the word “homosexual”. There was reference in the evidence to the fact that the appellant received a discharge on the charge, but this had not been brought to the jury’s attention. In addition, the appellant objected to the instruction on malice. In particular, he submitted that the trial judge erred in failing to make it clear to the jury that malice could be inferred from the respondents’ failure to make reasonable inquiries after their receipt of Mr. Copeland’s letter and in continuing the prosecution. The real thrust of the appellant’s case was that the respondents essentially refused to properly investigate the matter and that such conduct was actionable. The appellant complained that the trial judge had not put his position clearly to the jury that an improper motive in continuing the prosecution could be inferred from the fact that, having been put on notice by Mr. Copeland that they would be sued for malicious prosecution, the respondents persisted with the prosecution for the purpose of obtaining a conviction and thereby avoiding a lawsuit. He referred the trial judge to Sandison v. Rybiak (1973), 1973 CanLII 623 (ON SC), 1 O.R. (2d) 74 (High Ct.) and to a leading textbook on torts. Although the trial judge recharged the jury briefly, he gave no real, or helpful, effect to the appellant’s objections.

The Tort of Malicious Prosecution

[38] Before discussing what I consider to be the errors in the jury instructions, it is helpful to examine the nature of the tort of malicious prosecution and what the law regards as malice for the purpose of the commission of the tort.

[39] In Mohamed Amin v. Jogendra Kumar Bannarjee, [1947] A.C. 322 (P.C.), which was an appeal from the High Court in Calcutta, Sir John Beaumont considered the nature of an action for damages for malicious prosecution at 330:

The action for damages for malicious prosecution is part of the common law of England, administered by the High Court at Calcutta under its letters patent. The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favor (if that be possible), and that he has suffered damage. [Emphasis added.]

This passage was applied by Locke J. on behalf of a majority of the Supreme Court of Canada in Casey v. Automobiles Renault Canada Ltd., 1965 CanLII 72 (SCC), [1965] S.C.R. 607 at 616.

[40] In Clerk & Lindsell on Torts, 17^th^ ed., 1995, the nature of the tort is discussed at 739:

Wrongfully setting the law in motion. It is obviously a grievance that an individual should be harassed by legal proceedings improperly instituted against him. If there is no foundation for them no doubt they will not ultimately succeed, but during their progress they may cause great injury. It is the right of everyone to put the law in motion if he does so with the honest intention of protecting his own or the public interest, or if the circumstances are such, be his motives what they may, as to render it probable prima facie that the law is on his side. But it is an abuse of that right to proceed maliciously and without reasonable and probable cause for anticipating success, and thereby to cause damage to another. “The tort of malicious prosecution is dominated by the problem of balancing two countervailing interests of high social importance: safeguarding the individual from being harassed by unjustifiable litigation and encouraging citizens to aid in law enforcement.”

[41] The final sentence in the above passage comes from Fleming, The Law of Torts, 8^th^ ed., 1992, at p. 609, and is part of Fleming’s discussion on the balancing of the two countervailing interests which are present in the tort of malicious prosecution – safeguarding the individual from being harassed by unjustifiable litigation and encouraging citizens to aid in law enforcement. A similar discussion of these countervailing interests is found in Harper, James & Gray, The Law of Torts, 2^nd^ ed., 1986, Vol. 1, 405 – 409. At p. 407 the authors state:

The interests involved. It will be seen, then, that in actions for malicious prosecution, it is the interest in freedom from unjustifiable and unreasonable litigation that receives direct and primary protection. Many other interests, of course, are indirectly protected, such as interests in personalty; and frequently, in property; and often, but not always, in reputation. But these interests receive only secondary protection. The action for damages lies only because the defendant has set in motion the judicial process against the plaintiff in circumstances that are regarded as improper and unjustifiable and that, therefore, unduly subject the plaintiff to the inconvenience, expense, and in some respects, disgrace of legal proceedings. This is the general type of harm for which the action of malicious prosecution is available. [Emphasis added.]

See, also, Prosser & Keeton on The Law of Torts, 5^th^ ed., 1984, 870 – 871.

[42] In my view, from the authorities it is clear that the core meaning of malice in the tort of malicious prosecution is the use of the criminal justice system for an improper purpose.

[43] The explanation of malice by Lamer J. in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 at 193, is a useful starting point in considering what the authorities have accepted as constituting malice. The issue in Nelles was whether provincial Attorneys General and Crown Attorneys are immune from liability for malicious prosecution. Thus it was unnecessary for the Supreme Court to engage in a detailed analysis of malice. Nevertheless, it is helpful to reproduce what Lamer J. had to say about the tort at pp. 192 – 193, omitting, however, his view of what a plaintiff must establish respecting malice where the defendant is an Attorney General or a Crown Attorney:

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

(a)the proceedings must have been initiated by the defendant;

(b) the proceedings must have terminated in favor of the plaintiff;

(c) the absence of reasonable and probable cause;

(d) malice, or primary purpose other than that of carrying the law into effect.

(See J. G. Fleming, The Law of Torts (5^th^ ed. 1977), at p. 598.)

The first two elements are straightforward and largely speak for themselves. The latter two elements require explicit discussion. Reasonable and probable cause has been defined as “an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”. (Hicks v. Faulkner (1878), 8 Q.B.D. 167, at p. 171, Hawkins J.)

This test contains both a subjective and objective element. There must be both actual belief on the part of the prosecutor and the belief must be reasonable in the circumstances.

The required element of malice is for all intents, the equivalent of “improper purpose”. It has according to Fleming, a “wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage” (Fleming, op. cit., at p. 609). [Emphasis added.]

See, also, Lamb v. Benoit, 1959 CanLII 59 (SCC), [1959] S.C.R. 321 at 357 per Locke J.

[44] Although Lamer J. referred to a passage from the description of the nature of malice in Fleming, it is instructive to consider the context in which this passage is found, which I reproduce from the 8^th^ ed., 1992 at 620 – 621:

“Malice” has proved a slippery word in the law of torts, and should long have been replaced, in this context just as in defamation, by “improper purpose”. At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause. “Malice” has, therefore, a wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage. Indignation or anger aroused by the imagined crime is, of course, not sufficient because, far from being a wrong or devious motive, it is one on which the law relies to secure the prosecution of offenders. Nor is it reprehensible that the prosecution was launched in order to pave the way to a civil action in conformity with the requirement that a felon must first be prosecuted. On the other hand, the paramount purpose of securing the ends of justice is incompatible with lack of honest belief in the guilt of the accused, which is thus at once conclusive of the improper purpose of the proceedings and want of reasonable cause. Other examples of an improper purpose are prosecutions instigated with a view of extorting money, closing the plaintiff’s mouth in another legal proceeding or punishing him for having given evidence against the police on a previous occasion, blocking a meeting of shareholders, and recovering a debt or property in situations where recourse should properly be had to civil instead of criminal process.

The burden of proving malice lies on the plaintiff, and may be discharged by showing either what the motive was and that it was improper, or that the circumstances were such that the prosecution can only be accounted for by imputing some wrong and indirect motive to the prosecutor. Occasionally it has been somewhat loosely said that absence of reasonable cause is evidence of malice, but that malice is never evidence of want of reasonable cause. Neither proposition is universally correct. Proof of a particular fact may supply evidence on both counts, such as lack of honest belief in the guilt of the accused or evidence that the prosecution was set on foot in the complete absence of, or upon ludicrously and obviously insufficient, information. On the other hand, evidence that the prosecution was animated primarily by a desire to injure the plaintiff would not furnish even a prima facie case of absence of reasonable cause; and conversely evidence that the defendant had too hastily formed a belief in the guilt of the plaintiff on unreasonably insufficient grounds, does not ordinarily suffice to warrant an inference of malice. [Emphasis added.]

[45] In Clerk & Lindsell on Torts, 18th ed., 2000 at 841-842, Fleming’s analysis of malice is echoed. See, also Rainaldi, ed., Remedies in Tort, Vol. 1, 15–30 to 15-33,where it is stated at 15-30:

Malice in fact must be proved by the plaintiff; this can be done in one of two ways: (i) by showing what the motive was and that it was improper; or (ii) by showing that the circumstances were such that prosecution can only be accounted for by implying some wrong or indirect motive to the prosecutor, although it may be impossible to say what it was. Where an inference of malice is drawn, it should be made from the conduct of the defendant at the time he instituted proceedings. [Emphasis added.]

[46] In discussing improper motive as evidence of malice the authors of Clerk & Lindsell on Torts, 18th ed., 2000, state at p. 841:

Improper motives “Malice in this context has the special meaning common to other torts and covers not only spite or ill-will but also improper motive.” The proper motive for a prosecution is, of course, a desire to secure the ends of justice. If a claimant satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and probable cause. The jury, however, are not bound to infer malice from unreasonableness; and in considering what is unreasonable they are not bound to take the ruling of the judge. [Emphasis added.]

[47] There can be no doubt that in the appropriate case it is proper to infer malice from the absence of reasonable and probable cause to commence or to continue a prosecution. In Still v. Hastings (1907), 13 O.L.R. 322 at 334 (Div. Ct.) Clute J. said:

There was, I think, also evidence of malice. From the want of reasonable and probable cause malice may be inferred. Burley v. Bethune (1814), 5 Taunt. 580, 583; Heath v. Heape (1856), 26 L.J.M.C. 49. It is, however, not conclusive evidence of malice: Mitchell v. Jenkins (1833), 5 B. & Ad. 588. It is evidence for the jury to consider with the other facts of the case: Brown v. Hawkes, supra.

An appeal was dismissed without reasons: (1907), 14 O.L.R. 638 (C.A.). In Carpenter v. MacDonald (1978), 1978 CanLII 2104 (ON SC), 21 O.R. (2d) 165 (Dist. Ct.), in finding for the plaintiff, Smith D.C.J. stated at p. 184 that he was entitled to infer malice from an absence of reasonable and probable cause to initiate the prosecution. An appeal to this court was dismissed by a brief endorsement: (1979), 1979 CanLII 2043 (ON CA), 27 O.R. (2d) 730. See, also, Love v. Denny (1928), 1929 CanLII 388 (ON CA), 64 O.L.R. 290 at 300 (C.A.) and Montreal (City) v. Hall (1885), 1885 CanLII 50 (SCC), 12 S.C.R. 74per Strong J. at 85.

Analysis

[48] Counsel for the respondents made two significant concessions in his factum concerning the legal meaning of malice. In paragraph 30 he said that deliberate, reckless or callous disregard for the existence of grounds not to proceed with a prosecution can amount to malice. In paragraph 31, citing Fancourt v. Heaven (1909), 18 O.L.R. 492 (Div. Ct.), counsel stated that continuing a prosecution after the defendant came to “have positive knowledge of the innocence of the accused” would also amount to malice. However, respondent’s counsel took the position that the evidence in this appeal would not support such findings.

[49] My review of the authorities indicates that the core meaning of malice is the use of the criminal justice system for an improper purpose, the proper use of it being to bring before the court a person whom the prosecutor has reasonable and probable cause to believe has committed a criminal offence. Although the prosecutor may have reasonable and probable cause to commence a prosecution, if the prosecutor obtains information which suggests that the person probably did not commit the offence, or recklessly disregards advice that such information could be obtained through routine investigative steps, the prosecutor lacks reasonable and probable cause to continue the prosecution, and malice may be inferred.

[50] As I observed earlier, in finding that the respondents lacked reasonable and probable cause to continue the prosecution, the jury must have been satisfied that there were sound reasons to disbelieve Mr. Cantero. My review of the evidence satisfies me that the jury must have reasoned that had the respondents inquired into the matters raised by Mr. Copeland, the honest belief which they apparently had in the appellant’s guilt based on the information supplied by Mr. Cantero would have been displaced. Continuing the prosecution in the absence of an honest belief in the appellant’s guilt would be incompatible with securing the ends of justice, and malice could be inferred if the respondents continued the prosecution with reckless indifference to the truth. Continuing a prosecution in these circumstances would not be using the criminal justice system for the purpose for which it was intended. It was essential that in explaining the legal meaning of malice that the trial judge make this clear to the jury. As I will explain, he failed to do so.

[51] As the authorities indicate, malice has a “wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose”. Evidence that a prosecution was continued when available evidence of the unreliability of a complainant’s information has been deliberately or recklessly ignored, in my view, amounts to evidence from which an improper purpose may be inferred. Moreover, as I will explain, taking the position, as the respondents did, that the prosecution would continue in the face of the information supplied by Mr. Copeland if that were the wish of Mr. Cantero may also constitute an improper purpose as they would not be acting in furtherance of justice, having virtually abdicated the responsibilities and duties of a prosecutor to the complainant.

[52] Moreover, considering the evidence on which they found that the respondents lacked reasonable and probable cause to continue the prosecution, the jury should have been instructed that they could infer malice from the absence of reasonable and probable cause to continue the prosecution. In other words, the jury should have been instructed that if they concluded that the circumstances were such that the continuation of the prosecution could only be accounted for by the respondents’ disregard of the information provided by Mr. Copeland, or by Mr. Cantero’s desire that it proceed, or both, they were entitled to infer that the respondents continued the prosecution for an improper purpose. As Fleming points out, malice can be proved by showing that the circumstances were such that the continuation of the prosecution can only be accounted for by implying some wrong or indirect motive to the respondents, although it may be impossible to say what it was.

[53] In fairness to the trial judge, it should be noted that his instructions on malice appear to have been derived from a standard civil jury charge precedent commonly used in Ontario. In my view, in the circumstances of this case, a more detailed explanation of malice was required. Although the trial judge’s initial reference to malice in the italicized passage found in paragraph 31 was satisfactory, his subsequent attempt to expand on what he said amounted to reversible error. The first error is to be found in the following passage, quoted earlier in paragraph 35:

What does malice mean in this context? The prosecution has been initiated or carried out maliciously if it was done for a purpose other than bringing an offender to justice but out of personal ill will, spite or for selfish purposes and with reckless disregard to the right of the person accused. [Emphasis added.]

[54] This passage conflated several of the ways in which a person can act maliciously in continuing a prosecution. It was capable of being understood by the jury as saying that the jury cannot find that malice existed unless the person also acted “out of personal ill will, spite or for selfish purposes and with reckless disregard to the right of the person accused”. [Emphasis added.] The trial judge should have made it clear that malice exists if the jury were to find that the respondents continued the prosecution either for an improper purpose, or in reckless disregard of evidence which would have disclosed the unreliability of the information provided by Mr. Cantero, or out of ill will, spite or for selfish purposes, or because Mr. Cantero wanted them to do so. In the circumstances of this case, linking together the various factors capable of constituting malice, amounted to reversible error.

[55] The trial judge compounded this error in the final paragraph of his definition of malice when he stated:

…but unless you find that they acted with malice for some improper purpose in order to do harm to the plaintiff or from spite or from some ill will they bore him, then malice is not going to stand. [Emphasis added.]

It was incorrect to link improper purpose with a motive to do harm to the plaintiff. As the authorities indicate, it is sufficient to find that the criminal law was used for an improper purpose. It is unnecessary that the plaintiff prove, or that the jury find, the reason for the improper purpose. I do not believe that the trial judge’s subsequent instruction that the jury could consider the respondents perseverance in the prosecution “after acquiring positive knowledge of the plaintiff’s innocence” as something they “would want to consider in determining whether or not there was malice” was sufficient to cure this error.

[56] In my view, the circumstances of this case required a clear direction on the inference that the jury could draw from the absence of reasonable and probable cause to continue the prosecution. No such instruction was given.

[57] By failing to give the jury a clear direction that it could infer malice if it found that the respondents persisted with the prosecution with reckless indifference to the guilt or innocence of the appellant, the trial judge erred. The answers the jury gave indicate that a more adequate instruction on the relevance of reckless indifference to malice could well have affected the result. The jury found that the respondents lacked reasonable and probable cause for continuing with the prosecution and, when assessing damages, included an award for aggravated damages. The trial judge had instructed the jury as follows with respect to aggravated damages:

Aggravated damages is a name given to damages in instances where it is felt that what has taken place requires a larger amount because of the manner in which it has taken place.

It would require a certain finding on your part that there were actions or failures to take action on the part of the police that called for damages to be larger that would ordinarily be awarded.

[58] The jury’s answer to the question regarding aggravated damages suggests that it found the respondents’ conduct of the investigation to be worthy of some special sanction. In these circumstances, the significance of the trial judge’s failure to instruct the jury adequately with respect to inferring malice from recklessness is apparent.

[59] The charge would have benefited from a general instruction that malice may be proved by direct evidence or that it may be inferred from circumstances such as evidence of lack of reasonable and probable cause, or the defendant’s bad faith, or the absence of an honest and sincere belief by the defendants that the prosecution of the plaintiff, or its continuation, was justified by the existing facts and circumstances. Specifically, as I have indicated, the jury should have been told about the inference of malice available from their finding of the absence of reasonable and probable cause for continuing the prosecution. The jury also should have been told that malice could be inferred if they found that the respondents acted knowingly, or with reckless indifference, to evidence of the appellant’s innocence. Without a definition of malice that included the possibility of inferring malice in this manner, it is possible that the jury might have been misled into thinking that they could find malice only by discovering, or pointing to, the improper motive of the respondents, even if they felt the respondents knew that the appellant was probably innocent, or were reckless as to this fact.

[60] Moreover, in instructing the jury as I have described in the previous paragraph, the trial judge was required to explain that the respondents, as police officers, had a duty to engage in a thorough investigation of the allegations made by the complainant and satisfy themselves that they had reasonable and probable cause to continue the prosecution. A case in which a police officer’s failure to exercise his duty of undertaking a thorough investigation was found to constitute malice is Watters v. Pacific Delivery Service Ltd. (1964), 1963 CanLII 549 (BC SC), 42 D.L.R. (2d) 661 (B.C.Sup.Ct.).

[61] In Watters, a police detective, Cotter, acting on information given him by Sandover, and without making any adequate inquiries, charged the plaintiff with false pretenses. Sandover had deceived Cotter, and had Cotter conducted a proper investigation the deception would have been discovered. Munroe J. found that Cotter lacked reasonable and probable cause to charge the plaintiff and that he acted with malice by reason of his reckless disregard of his duties as a police officer and the legal rights of the plaintiff. The following discussion of Munroe J. at p. 668 respecting malice is instructive:

Then, has the plaintiff proved malice? That question involves an enquiry into the state of mind of the defendants at the time the prosecution was instituted because malice means the presence of some improper and wrongful motive. Absence of reasonable and probable cause is some evidence from which malice may be inferred, but it is only upon consideration of the whole of the evidence that one may determine whether or not such inferences should be drawn. The crucial questions for consideration, as stated by Lord Atkinson, in Corea v. Peiris, [1909] A.C. 549 at 555, are these:

Did the prosecutor believe the story upon which he acted? Was his conduct in believing it, and acting on it, that of a reasonable man of ordinary prudence? Had he any indirect motive in making the charge?

In laying this charge the defendant Cotter was not indulging his personal spite. He had no previous knowledge of the plaintiff. No express malice on his part has been proved. Should malice be inferred from the circumstances? He was entrusted with the responsibility of exercising a discretion to decide whether or not a criminal prosecution should be instituted. His investigation was hastily made and careless in the extreme, and his decision to prosecute was not, I find, that of a reasonable man of ordinary prudence. . . . It is not easy to specify what his indirect, improper and wrongful motive may have been. Perhaps it was merely to save his own time or conserve his energy, but whatever his motive may have been, his conduct in this case discloses that he abdicated his responsibility and abused his privilege, and displayed a reckless disregard of his duties and of the legal rights of the plaintiff. Upon the whole of the evidence, the malice of the defendant Cotter should and must, I think, be inferred.

[62] Watters is therefore helpful in reinforcing the fact that the police have the training and experience to investigate a possible offence impartially and with skill and in that process to assess whether the evidence justifies invoking or continuing the criminal process. The police have the professionalism to critically weigh and test the reliability of complainants and information provided by them which might be affected by the self-interest or ill-will of the complainant. Thus, as Watters holds, the failure of a police officer to make adequate inquiries before charging a person, or continuing a prosecution, may constitute malice.

[63] I would add that Watters was recently cited with approval by the English Court of Appeal in Mahon v. Rahn, [2000] 4 All E.R. 41, in which the issue was identifying who had the instituted prosecution: the complainant or the police who brought the charge on the basis of the information provided by the complainant.

[64] The final instruction that the trial judge left with the jury, which is reproduced in paragraph 35, was both incorrect and misleading. He said that “a police officer can be sloppy in his or her work”. This suggested to the jury that a careless investigation was not improper, which is incorrect. The jury was also told that they could take into consideration in determining whether the respondents acted with malice “that they persevered in the prosecution after acquiring positive knowledge of the plaintiff’s innocence”. [Emphasis added.] This instruction did not accord with the evidence which was not that the respondents had acquired such knowledge; the instruction missed the focus of the plaintiff’s case which was that the respondents failed in their duty as police officers to follow-up on the matters raised by Mr. Copeland, which seriously challenged the truth of Mr. Cantero’s allegations.

[65] There was an additional error committed by the trial judge which the appellant raised in his objections to the charge. It related to the report in the police file that the appellant had been charged with an offence in October, 1982. The appellant objected to its admission, but the trial judge allowed it to become an exhibit, reassuring the appellant that he would give the jury some form of limiting instruction about its use. In paragraph 34, I have reproduced what the trial judge told the jury about the document. He placed unnecessary emphasis on the “previous incident”, but failed to provide any limiting instruction, the omission of which was prejudicial to the appellant and had the potential of adversely affecting the fairness of the trial. Although the report may have been relevant to whether the respondents had reasonable and probable grounds to charge the appellant, it was also evidence of his bad character. The trial judge should have instructed the jury about the limited use to which the document could be put, indicating that it was not admitted for the truth of its contents and that the jury should not draw any inference adverse to the appellant from either its contents or the fact that he had, at one time, been charged with an offence. In addition, the jury should have been told that the appellant was not convicted of the offence of which he was charged, and that he received a discharge. Also, on a number of occasions the trial judge made statements which were not supported by the evidence. For example, there was no suggestion in Constable Hegenauer’s testimony that the report played a role in the respondents’ decision to continue the prosecution. Nor did the information supplied by Mr. Cantero to the respondents warrant the statement that there were homosexual overtones to the alleged encounter between Mr. Cantero and the appellant in the Times Square Bookstore.

[66] The trial judge spent far too much time dealing with the report in a way that was unfair and prejudicial to the appellant. Although this in itself may not have warranted setting aside the verdict of the jury, when considered together with the trial judge’s error in his instructions on malice and his unwarranted preclusion of the appellant’s cross-examination of Constable Hegenauer on the report of Sergeant Mahoney, it provides an additional ground for allowing the appeal.

[67] I should add a word of explanation about why I believe that continuing the prosecution in accordance with the wishes of Mr. Cantero is capable of constituting malice. I appreciate that it was not for the respondent police officers to make the ultimate decision whether the prosecution was to continue. As stated in the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, 1993 at p. 27: “It is Crown counsel, in consultation with the police and victims and, perhaps, defence counsel, who decide what charges are taken to court.” As further stated in the Report at p. 39: “The Crown is entitled to rely on the police, as the investigative source of most of the information relevant to the guilt or innocence of an accused person, to bring forward accurately and completely whatever has a bearing on the case.” However, the final decision lies within the discretion of the Crown Attorney: Smythe v. The Queen, 1971 CanLII 831 (SCC), [1971] S.C.R. 680. In doing so, the Crown Attorney is no doubt guided by the fact that his or her role is not only to prosecute those accused of crime, but also to ensure that the power of the state is to be used only in pursuit of impartial justice: Boucher v. The Queen (1954), 1954 CanLII 3 (SCC), 110 C.C.C. 263 (S.C.C.) per Rand J. at 270.

[68] What Constable Hegenauer meant when he testified that the prosecution would continue if that were the wish of Mr. Cantero was that he and Sergeant Hughes would recommend to the Crown Attorney that the prosecution should not be terminated if it was Mr. Cantero’s wish that it proceed. Gerald Lapkin testified that although the final decision whether a prosecution will proceed to trial is with the Crown Attorney, he or she would consider the advice of the officer in charge of the prosecution as persuasive or influential. In my view, a recommendation made by the respondents that the prosecution continue at the behest of Mr. Cantero and in disregard of the matters raised by Mr. Copeland was capable of constituting malice.

[69] As I stated earlier, counsel for the respondents conceded that the instructions on malice were flawed, but urged the court to find that there was no substantial wrong or miscarriage of justice caused by the misdirection. I do not agree. In my view, had the jury been instructed properly it is not inevitable that they would have returned the same verdict. Indeed, having reviewed the evidence, I am satisfied that if the jury had been instructed properly, it would have found that the respondents were actuated by malice in continuing the prosecution.

[70] While the conclusion I have reached with respect to the claim for malicious prosecution is sufficient to dispose of this appeal, for the sake of completeness I will briefly indicate why I would dismiss the appeal with respect to the claims for damages for a constitutional tort and for the tort of negligent investigation. I do so before dealing with what, in my view, is the appropriate remedy.

Constitutional Tort

[71] The appellant alleged that his rights under ss. 7, 11(d) and 6(2)(b) of the Charter were violated. I am not satisfied that the plaintiff established any identifiable Charter breach that would give rise to a claim for damages

[72] The claim for a constitutional tort for an alleged breach of s. 7 appears to have been based on precisely the same factual allegations advanced in support of the claim for malicious prosecution. The courts may consider Charter principles in developing the common law (see R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573). However, as I have found that the common law tort of malicious prosecution has been established, there is no reason on these facts to consider whether the ingredients of the common law action ought to be altered. Moreover, as the common law action of negligent investigation, discussed below, is also available if properly pleaded, the arguments favouring altering the common law action of malicious prosecution or adding a further Charter-based tort are considerably weakened.

[73] With respect to the contention that the appellant’s right to disclosure mandated by s. 7 was breached, the evidence of his criminal trial counsel Paul Copeland is fatal to such a claim. Mr. Copeland testified that he received full cooperation from the police in obtaining disclosure.

[74] I agree with the trial judge’s conclusion that no breach of s. 11(d) of the Charter has been established. As the language of that provision indicates, it extends to a person charged with an offence “the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. This protection relates to the trial process rather than to the investigative activities of the police. The police do not violate the presumption of innocence when they conclude, even erroneously, before laying charges that there are grounds to believe that a suspect has committed a criminal offence.

[75] The appellant also relies on s. 6(2) of the Charter in that the prosecution interfered with his right to work and gain a livelihood. It has been held that s. 6(2) does not amount to a free-standing guarantee to the right to work, but rather that it protects the right to move from province to province to seek employment: Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357. There is no element of inter-provincial mobility in the present case.

The tort of negligent investigation

[76] The appellant submitted that the trial judge erred in refusing to consider, or to put to the jury, the appellant’s claim for negligence. In my view, this submission must be rejected.

[77] It was not until final argument that the appellant sought to advance a claim in negligence in this case. There is no mention of negligence in his statement of claim or in his amended statement of claim. It is true that some of the facts pleaded in these documents might have supported a negligence claim. However, those facts were pleaded to support the explicit claims the appellant actually advanced, namely malicious prosecution and breach of Charter rights. There are clear and obvious differences between claims in these two categories and a claim in negligence.

[78] The appellant amended his original statement of claim to include claims relating to alleged violations of his constitutional rights. In other words, he was alive to the requirement that his pleadings accurately reflect his claims. It would have been easy to amend the pleadings to include a claim for negligent investigation if he had so desired.

[79] Although Mr. Oniel represented himself through much of the trial, he was assisted at various junctures by Professor Alan Young of Osgoode Hall Law School. Importantly, Professor Young provided a comprehensive legal brief on Mr. Oniel’s behalf. The trial judge referred to it as a “useful memorandum of law”. Professor Young titled his brief Memorandum of Law Re: Constitutional Torts and Malicious Prosecution. He did not identify a separate claim in negligence.

[80] Interestingly, and importantly, in his discussion of so-called “constitutional torts” Professor Young analyzed in some detail the tort of negligent investigation and the case law relating to the tort, including Beckstead v. Ottawa (City) Chief of Police (1997), 1997 CanLII 1583 (ON CA), 37 O.R. (3d) 62 (C.A.) and Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225 (Div. Ct.). However, his discussion of these cases was framed entirely in the context of the Charter violations being asserted by Mr. Oniel:

17. Although these cases deal with lawsuits for negligent investigation, it is clear that the principles articulated within these cases are equally applicable to a claim of a s. 7 violation under the Charter.

Later Professor Young said:

24. It is respectfully submitted that the concept of a constitutional tort, which operates independently of conventional tort law….[Emphasis added]

[81] In my view, it is clear from Professor Young’s memorandum that Mr. Oniel was not advancing a separate claim in negligence. Rather, Mr. Oniel was relying on the negligent investigation case law to reason by analogy in support of the claims he was advancing, namely claims of malicious prosecution and violation of constitutional rights.

[82] At the conclusion of the trial, after the jury had rendered their verdict, there was a discussion among the trial judge, Mr. Oniel and the respondents’ counsel about the next steps in the action. The following exchange took place:

THE COURT: Mr. Stikuts, what is on my mind really is this. This trial is not completed.

MR STIKUTS: That is my concern.

THE COURT: That’s what Mr. Oniel has pointed out and I agree with him. We have to deal with the remainder of this trial. I propose to --- well, I’ll tell you what I have written thus far.

In view of the answers of the jury to the questions asked of them, the claim for malicious prosecution is dismissed.

THE COURT: And I think I am going to have to add to that wording to the effect that the claim for the breach of the plaintiff’s Charter rights remains to be determined and is adjourned to a date to be fixed by the Registrar.

THE COURT: I think that’s the best way to deal with it don’t you?

MR. ONIEL: Yes, your Honour.

THE COURT: This is what I have endorsed on the record:

In view of the answers of the jury to the questions asked of them, the claim for malicious prosecution is dismissed. The plaintiff’s claim for damages for breach of Charter rights is adjourned to a date to be fixed by the Registrar. Costs of this action and all costs reserved on previous matters to be dealt with by me are further reserved until such time as the Charter issue is heard and determined.

MR. STIKUTS: Thank you, your Honour.

MR. ONIEL: Yes.

[83] The agreement manifested in this exchange, and in the trial judge’s endorsement at the conclusion of the trial, was reflected in the trial judge’s reasons relating to the constitutional tort issue released several months later. Early in those reasons, the trial judge explained the history of the case in these terms:

Before the conclusion of the evidence I indicated to the parties in open court and in the presence of Professor Young that I was not prepared to see the matter of the constitutional questions which might arise from the amendment being submitted to the jury. It struck me that a more appropriate way to deal with this was to withdraw the entire case from the jury. After some discussion and with the agreement of the plaintiff and of Professor Young, it was decided that the malicious prosecution portion of the claim would be submitted to the jury and, depending on the outcome, the constitutional question would be held in abeyance to be decided by myself alone at a later date. [Emphasis added]

There is nothing in the record to contradict the accuracy of this passage. What is missing from the trial judge’s description is any reference to a separate claim in negligence.

[84] In my view, the exchange among the trial judge, Mr. Oniel and the respondents’ counsel at the end of the trial, the trial judge’s endorsement on the trial record at that juncture, and his description in his later reasons of the background history of the action, taken together made it clear that the parties and the trial judge were all of the same mind: there were two, not three, legal claims in the action. These claims were malicious prosecution and violation of Charter rights. There was not a separate claim grounded in conventional negligence.

[85] I note as well that the two formal judgments of the court taken out giving effect to the jury’s verdict and the trial judge’s reasons for judgment explicitly dismiss the appellant’s claims for malicious prosecution and violation of Charter rights. The judgments are silent about a separate negligence claim.

[86] Finally, and importantly, in the two leading cases in which Ontario courts have found police officers liable for negligent investigations, Beckstead v. Ottawa, and Doe v. Toronto (Municipality) Commissioners of Police (1998), 1998 CanLII 14826 (ON SC), 39 O.R. (3d) 487 (Gen. Div.), the plaintiff specifically pleaded the tort of negligent investigation. Indeed, in Jane Doe there were separate pleadings relating to negligent investigation and violation of constitutional rights. In the present case, the pleadings are silent about the tort of negligent investigation.

[87] In summary, the failure to plead something as important, and I might add, as obvious, as a claim grounded in conventional negligence law is fatal to the appellant in this case. In Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 1998 CanLII 6879 (ON CA), 41 O.R. (3d) 528 at 533-34 (C.A.), Finlayson J.A. said:

It has long been established that the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings: see rule 25.06. The trial judge cannot make a finding of liability and award damages against a defendant on a basis that was not pleaded in the statement of claim because it deprives the defendant of the opportunity to address that issue in the evidence at trial.

[88] The principle articulated by Finlayson J.A. in Kalkinis has been consistently applied by this court in several recent decisions: see, for example, Vanek v. Great Atlantic or Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228; Immocreek Corp. v. Pretiosa Enterprises Ltd. (2000), 2000 CanLII 14728 (ON CA), 186 D.L.R. (4th) 36; and Strong v. Paquet Estate (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70. In my view, the principle should be applied again in the present appeal. Put simply, it was not until after the jury had given its verdict and in the course of argument on the Charter claim that the appellant attempted to assert a claim grounded in conventional negligence law. To entertain the claim in negligence at that stage would plainly have deprived the respondents of the opportunity to address important aspects of the issue in the evidence at trial. In particular, no evidence was led as to the requisite standard of care, a central element of the tort of negligent investigation. It was simply too late in the process for the appellant to add another claim after all the evidence had been heard and after the jury had given its verdict.

Damages

[89] The appellant also appealed from the jury’s assessment of damages. The total damages assessed were $75,000. The appellant raised a number of grounds in support of his submission that the damages were inadequate. After consideration of the evidence relevant to the various heads of damages and the instructions of the trial judge, I have not been persuaded that this court should interfere with the jury’s assessment. Therefore, I would not give effect to this ground of appeal.

Remedy

[90] There having been misdirection on the crucial issue in the case, I have no doubt that the jury’s verdict cannot stand. Should there be a new trial, or should the court set aside the jury’s verdict and enter judgment for the appellant? The powers of the Court of Appeal are very broad. Section 134(1) of the Court of Justice Act states:

134(1) Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

[91] Generally speaking, as in this appeal, where there has been misdirection that satisfies the court that had the jury been properly directed it would not necessarily have reached the same verdict, a new trial is ordered. However, there is ample authority for the proposition that when an appellate court is satisfied that all the facts are before it, and they are such that only one verdict could be given by a properly instructed jury, acting reasonably and judicially, the court is not bound to order a new trial, but has the power, which it ought to exercise, to direct that judgment be entered notwithstanding the verdict of the jury. An example of this court exercising such power is McNichol v. Ardiel (1978), 1978 CanLII 1459 (ON CA), 22 O.R. (2d) 324. See, also, Adam v. Campbell, 1950 CanLII 326 (SCC), [1950] 3 D.L.R. 449 (S.C.C.); Petijevich v. Law (1968), 1968 CanLII 123 (SCC), 1 D.L.R. (3d) 690 (S.C.C.); Vancouver – Fraser Park District v. Olmstead, 1974 CanLII 196 (SCC), [1975] 2 S.C.R. 831; Maloney v. Hamilton Street Railway Co. (1929), 1929 CanLII 403 (ON CA), 64 O.L.R. 444 (C.A.); Wilson v. Rebotoy (1929), 1929 CanLII 404 (ON CA), 64 O.L.R. 458 (C.A.); Graham v. Hodgkinson (1983), 1983 CanLII 1775 (ON CA), 40 O.R. (2d) 697 (C.A.); Hackman v. Vecchio (1969), 1969 CanLII 796 (BC CA), 4 D.L.R. (3d) 444 (B.C.C.A.).

[92] In Petijevich, in which there had been a jury trial, Hall J., on behalf of the Supreme Court of Canada, stated the principle to be applied by an appellate court in determining whether to order a new trial or whether to enter the judgment which should have been granted by the trial court. In doing so, he endorsed what was stated by O’Halloran J.A. in Jardine v. Northern Co-operative Timber and Mill Association, 1945 CanLII 274 (BC CA), [1945] 1 D.L.R. 732 at 734 (B.C.C.A.):

Where as here the evidence is of such a character that only one view can reasonably be taken of its effect, it is not a case for a new trial . . . but we ought now give the judgment which the plain facts proven conclusively at the trial demanded . . . [Citations omitted.]

This was the approach taken by Jessup J.A. in McNichol where he was satisfied that the court had all the material before it that it required to order judgment for the plaintiff appellant who had been unsuccessful at trial.

[93] In my view, in the unusual circumstances of this case, it is open to this court to make its own assessment of the evidence and to make the factual findings necessary to avoid the need for yet another trial. Pursuant to s. 134(1)(c) of the Courts of Justice Act, this court has the discretion to “make any order or decision that is considered just”. In my view, it would not be just to order another trial. It would be the third trial. Two trials will have been wasted because in each the jury had been misdirected. This is the third appeal to this court. This case has also been before the Supreme Court of Canada. The parties have been living with this case, in one way or another, for over fifteen years. It is time for closure. I appreciate that this court should act cautiously before exercising its power to substitute its own finding for that of a jury, but the circumstances require a final determination.

[94] Although I do not propose to engage in any further review of the evidence, there are a number of factors which should be emphasized as bearing upon what I would characterize as a rather cavalier approach by the respondents to their conduct of the investigation and, necessarily, to the rights of the appellant. I have referred to some of them earlier in paragraphs 26, 27 and 28 in my reference to errors which the trial judge made that unfairly prevented the appellant from making out his case. When all of the factors which I will mention are knitted together with the evidence to which I have referred they form a circumstantial case of the absence of any grounds upon which to continue the prosecution and the use of the criminal process for an improper purpose. These are the factors:

• One of the most important inadequacies of the report of Sergeant Mahoney, who was asked to look into the case after Mr. Copeland wrote, was the absence of any reference to two crucial points he had raised – that the respondents failed to interview Mr. Gallagher, the store manager where the robbery was alleged to have occurred, and Mr. Oniel’s hairdresser, who might have had information with regard to the length of his hair.

• Despite the unsavory history of the complainant, Mr. Cantero, and the inconsistent accounts of the alleged robbery he had provided, it was the respondents’ position that the prosecution should proceed if he so desired.

• Constable Hegenauer seemed to have been obsessed by his belief that there had been some sort of sexual impropriety between the appellant and the complainant, notwithstanding the evidence that this was not the version given to the police by the complainant. Moreover, in support of this belief was the considerable weight which Constable Hegenauer placed on the report in the police files of an October, 1982, assault charge against the appellant. Yet the circumstances of the 1982 incident and the allegations of the complainant were different. The earlier incident allegedly took place in the washroom of a theater and did not involve a robbery – which was the focus of the complainant’s allegations.

• The respondents steadfastly refused to interview Mr. Gallagher to whom Mr. Cantero said he had complained. They finally did interview him, but only at the insistence of the Crown Attorney part way through the preliminary hearing. They made no notes of the interview, even though Sergeant Hughes admitted on examination for discovery that “Mr. Gallagher’s evidence bothered me”.

• The respondents testified that they made no notes of what they were told by Mr. Cantero. Although they took a formal statement from Mr. Cantero, they said that the statement and all copies were lost.

• Although Constable Hegenauer testified that he eventually called the hairdresser and spoke to her, he made no notes of the conversation.

[95] In my view, from the foregoing analysis it is apparent that the evidence clearly supports a finding that the respondents proceeded with reckless indifference to the guilt or innocence of the appellant and that malice should be inferred. In so finding, I once again make reference to the jury’s finding that the respondents lacked reasonable and probable cause to continue the prosecution and that aggravated damages should be awarded. It does not require a major leap from these findings to conclude, on the basis of all the evidence, that a finding of malice is appropriate.

Result

[96] In the result, I would allow the appeal, set aside the judgment and order that judgment be entered for the appellant in the amounts assessed by the jury with prejudgment interest and postjudgment interest in accordance with the Courts of Justice Act. I would also award the appellant his costs of the trial and the appeal, such costs to be limited to costs to which a self-litigant is entitled.

(signed) “S. Borins J.A.”

(signed) “I agree R. J. Sharpe J.A.”

MACPHERSON J.A. (dissenting):

[97] I have had the opportunity to read the reasons of my colleague, Borins J.A. I agree with his analysis and conclusions with respect to the Charter tort and negligent investigation issues. I regret that I do not agree with his analysis or conclusions with respect to the tort of malicious prosecution. Nor do I agree with the remedy he proposes. I will attempt to state my reasons in brief fashion.

(1) Malicious Prosecution

[98] The primary basis for the appellant’s action was that the respondents had committed the tort of malicious prosecution. While the jury found that the respondents lacked reasonable grounds to continue the prosecution against the appellant, the jury also found that the appellant had failed to establish that the respondents had acted with malice.

[99] It is well established in the case law that the core meaning of malice in the tort of malicious prosecution is an improper purpose. This was explained by Lamer J. in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 at 193:

The required element of malice is for all intents, the equivalent of “improper purpose”. It has according to Fleming, a “wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage” (Fleming, op. cit. at p. 609). To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of “minister of justice” [para. 194]. In my view, this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice.

[100] The appellant asserted that the respondent police officers acted with an improper purpose. This is abundantly clear from the first three answers Mr. Oniel gave to questions when he was cross-examined at the trial:

Q. Mr. Oniel, I understand you to be saying to us that you are of the view that Officers Hegenauer and Hughes set out to destroy your name, your reputation, your career, have destroyed your health and have done so by using this Mr. Cantero. Is that true, in your view?

A. I believe that’s true that it eventually became the case, that’s true. It may not have been necessarily their intention the very day I was charged because I testified that the then Sergeant Hughes told me he wasn’t convinced that I was robbed, I mean that I robbed him. In addition, I was let go from the station rather than be kept there so it may not have been necessarily their intention that day. Perhaps they felt somehow that I was robbed or maybe they didn’t like the particular stores, but I don’t believe they checked any of my facts. They didn’t know who I was. I think they believed that I was this bum and robber.

Q. At some point the idea that they were out to get you crystallized in your mind. When was that point?

A. It was sometime, well, I had sort of hints in my mind all through this but, you know, right from the outset because as I testified, they weren’t turning over – they weren’t supplying my solicitors with information so I started to become worried about this case but I would say throughout all this.

Q. Mr. Oniel, was there not a moment that it actually crystallized in your mind, it became clear to you that these officers were out to get you?

A. I would say that it built up. It was a question of building up and so, you know, sort of planting a seed and the seed grows. That’s the way I would describe it.

[101] It is clear from these answers, and from many other parts of Mr. Oniel’s testimony, that his essential complaint was that the police officers had a personal vendetta against him and persisted in the prosecution against him because of this “improper purpose”. It is clear from the jury’s verdict that it did not accept that the respondents had any improper purpose.

[102] The trial judge instructed the jury in the following manner with respect to the ingredients of malice:

What does malice mean in this context? The prosecution has been initiated or carried out maliciously if it was done for a purpose other than bringing an offender to justice but out of personal ill will, spite or for selfish purposes and with reckless disregard to the right of the person accused. You can take into account any of the factors that you feel bear on that question, that is, any of the evidence that you have heard that you accept that says to you, “Yes. They were behaving maliciously in doing this. They did this with malice.”

Now, a police officer can be sloppy in his or her word. We will say “his” in this case because we are dealing with two male police officers but unless you find that they acted with malice for some improper purpose in order to do harm to the plaintiff or from spite or some ill will they bore him, then malice is not going to stand. If you find the defendant did not have probable cause for believing the plaintiff at the time when they initiated the prosecution or carried it through, you may find the defendants acted maliciously. You are not required to. If you feel that the defendants persevered in the prosecution after acquiring positive knowledge of the plaintiff’s innocence, that is certainly something you would want to consider in determining whether or not there was malice.

[103] In my view, in the circumstances of this case and in light of the evidence and theory presented by the plaintiff, the trial judge’s instructions concerning malice were appropriate.

[104] I emphasize, as Borins J.A. notes, that the trial judge’s instructions on malice tracked very closely a standard civil jury charge precedent used for many years in Ontario. To my knowledge, the contents of this charge have never been seriously challenged. Yet Borins J.A. concludes that “in the circumstances of this case, a more detailed explanation was required”.

[105] With respect, I disagree. The plaintiff’s own allegations made this the paradigmatic malicious prosecution case described by Lamer J. in Nelles v. Ontario, namely, a case in which the foundation for the tort of malicious prosecution was the alleged improper purpose of the police officers. The trial judge understood this and gave a straightforward and fair charge which placed the case before the jury in its proper context and, importantly, in the context presented by the plaintiff himself.

[106] Moreover, the trial judge did not ignore the secondary meanings of malice described by Borins J.A. Although he did not emphasize them to a great extent because they were not central to the case, he did tell the jury that it was entitled to find malice if the respondents had acted with reckless disregard to the rights of the accused. The jury was also instructed that a finding of malice could be based upon a finding that the defendant had persevered in the prosecution after acquiring positive knowledge of the plaintiff’s innocence.

[107] In summary, in my view the trial judge properly instructed the jury on the question of malice as it arose through the evidence and positions of the parties in this case. Moreover, the jury reached a conclusion that was certainly open to it on the evidence it heard, namely that the respondents were not actuated by malice. That conclusion, manifested by clear answers to clear questions, is fatal to the appellant’s claim of malicious prosecution.

[108] Before leaving this aspect of the appeal, I feel compelled to address one other aspect of Borins J.A.’s reasons. Although the principal issue on the appeal is the trial judge’s charge with respect to the ingredients of malice, Borins J.A. is sharply critical of the trial judge in several other aspects. He says that the trial judge improperly cut off a “very important avenue of cross-examination” being conducted by the appellant personally, that the trial judge recharged the jury in a way that “gave no real, or helpful, effect to the appellant’s objections”, that “on a number of occasions the trial judge made statements which were not supported by the evidence” and that the trial judge spent “far too much time” in his jury charge dealing with a report “in a way that was unfair and prejudicial to the appellant”.

[109] I am not clear why these criticisms are made, at regular intervals, in a comprehensive set of reasons dealing with the trial judge’s charge with respect to malice. In the end, Borins J.A. does not seem to rely on them as independent grounds for allowing the appeal; indeed, two of my colleague’s criticisms are made in the Facts section of his reasons. Accordingly, no good purpose would be served by responding to the criticisms in detail. For the record, I would simply make two comments. First, in every instance my review of the record would indicate that my colleague’s criticisms of the trial judge’s rulings, review of the evidence, and charge and recharge are unwarranted and incorrect. Second, these isolated and sharp criticisms of the trial judge, which are unrelated to the main issue of the appeal, ignore the fact that, on my reading of the entire trial record, the trial judge presided over a difficult trial firmly, fairly and courteously.

(2) The Remedy

[110] I am genuinely surprised at the remedy proposed by my colleague. This was a civil jury trial in which the jury gave clear, unequivocal answers to clear questions. The jury said that neither Sergeant Hughes nor Constable Hegenauer was actuated by malice. In spite of these answers, Borins J.A. proposes that this court take the unusual step of overriding the jury verdict, not ordering a new trial, and awarding damages to the appellant. He reaches this conclusion because “it is apparent that the evidence clearly supports a finding that the respondents proceeded with reckless indifference to the guilt or innocence of the appellant and that malice should be inferred”.

[111] With respect, I disagree. In my view, it is not at all apparent that the record supports a conclusion by an appellate court opposite from the conclusion reached by a jury which heard all the evidence. I reach this conclusion for several reasons.

[112] First, it is important to understand the timing of events leading up to the appellant’s criminal trial. The trial was scheduled to commence on December 1, 1986. Borins J.A. says that Paul Copeland, Mr. Oniel’s counsel at the criminal trial, wrote “a series of letters” to Gerald Lapkin, a senior Crown attorney with supervisory responsibilities for prosecutions. He refers specifically to letters to Mr. Lapkin dated November 11 and 27. In fact, Mr. Copeland did not write to Mr. Lapkin on November 11. His letter on that date was addressed to “Crown Attorney”. Since no Crown attorney had been assigned to the Oniel prosecution at that juncture, it cannot be said that it raised a red flag requiring concerted action. In any event, it appears that the letter did come to Mr. Lapkin’s attention about a week later. He acknowledged it, sent a copy to Sergeant Hughes and told Hughes that he wanted to discuss the matter with him.

[113] In my view, the crucial time frame within which the Crown and the police were on notice as to how seriously the appellant was questioning the continuation of the prosecution was November 27 - December 1. The former date was a Thursday. On that date Mr. Copeland wrote a detailed letter to Mr. Lapkin setting out his concerns. He also wrote similar letters to Sergeant Hughes and to Jack Marks, the Chief of Police. Mr. Oniel personally delivered the letter addressed to the Chief of Police. He testified that he met with Deputy Chief Scott who “was very concerned about what he read and he ordered an internal investigation”.

[114] What did this flurry of letters provoke in the three days (two of which were a week-end) before the trial, which was scheduled to commence on Monday, December 1?[^1] The answer, in my view, is clear from the record: the police and prosecution took rapid and proper steps to investigate the matter. Mr. Lapkin met personally with Mr. Copeland on Friday, November 28. He wrote a detailed memorandum to file following that meeting that shows he was fully aware of the appellant’s concerns and was considering them in a thoroughly professional fashion. Mr. Lapkin and Sergeant Hughes also discussed the case on November 28.

[115] Moreover, Sergeant James Mahoney conducted an internal investigation of the case. He met with Mr. Lapkin on November 28, reviewed the file and the transcript of the preliminary inquiry, and then attended court on December 1 to discuss the case with the assigned Crown counsel, David Locke, who told him that “he felt confident that the facts were sufficient to convict”. On December 1, Sergeant Mahoney wrote a six page report to his supervisor, Staff Superintendent Tyrrell, in which he concluded that it was appropriate that the prosecution proceed.

[116] Borins J.A. states that a “review of the report discloses that it was not responsive to any of the issues raised by Mr. Copeland”. In my view, this criticism is both unfair and incorrect. Although Sergeant Mahoney did not deal specifically in his report with the assertions in Mr. Copeland’s letter, he met with both Mr. Lapkin and Mr. Locke to discuss the case in the context of the letter. It would seem self-evident that the discussions would relate to all of the evidence.

[117] In summary, the response of police officers Hughes, Scott and Mahoney and prosecutors Lapkin and Locke to the appellant’s concerns in a tight three day period on the eve of trial belies Borins J.A.’s “finding that the respondents proceeded with reckless indifference to the guilt or innocence of the appellant and that malice should be inferred”.

[118] Second, in my view Borins J.A.’s conclusion is not supported by a fair assessment of what the record shows about the two principal protagonists, the appellant and Sergeant Hughes, the officer-in-charge.

[119] Mr. Oniel is, on the basis of the record, a difficult person. During his testimony, he accused Sergeant Hughes of being drunk on duty. He had written a letter to the Chief of Police to the same effect. He suggested the Sergeant Hughes death was caused by drinking. He said that there would be evidence to corroborate these allegations during the trial. There was none. Mr. Oniel also testified that he had received death threats and noxious substances in envelopes and that these “stopped immediately after Sergeant Hughes died”.

[120] Some insight into Mr. Oniel’s conduct can be garnered from the testimony of Mr. Copeland who represented him at the criminal trial. Mr. Copeland refused to follow Mr. Oniel’s instructions and request an adjournment because he felt Mr. Oniel was not being honest about a medical report. Mr. Copeland testified that “our relationship deteriorated significantly before the trial started” and that if he “could figure out some way of not representing [Mr. Oniel] without violating my professional obligation, I would have gotten out of the case in a minute”. Mr. Copeland also testified that “I would say our relationship was one of the most difficult I have had with a client”.

[121] Sergeant Hughes died before the civil trial. However, he was examined for discovery and parts of this evidence were read in at the trial. Moreover, other witnesses testified about his conduct with respect to the Oniel investigation and prosecution. In my view, Borins J.A.’s conclusion that Sergeant Hughes “proceeded with reckless indifference to the guilt of innocence of the accused” is not supported by these sources.

[122] Sergeant Hughes was alive to inconsistencies in the evidence against Mr. Oniel. Mr. Oniel had initiated a private prosecution for perjury against the complainant (the Crown stayed the charge). When he examined Sergeant Hughes in discovery proceedings, Mr. Oniel referred to this charge and other matters and this exchange took place:

Q. One by one and including the perjury charge, including the testimony of Gallagher, including the evidence that was given by Frank Cantero to the police?

A. Of course, Mr. Gallagher’s evidence bothered me. I mean it certainly – it certainly bothered me but I mean at that point I think – the Crown wished to hear Mr. Gallagher in the witness box too. It’s – it’s a situation where the fact you lay a perjury charge - that’s not going to affect my case against you.

[Emphasis added.]

It is clear from this response that Sergeant Hughes was aware of, and concerned about, some aspects of the case against Mr. Oniel.

[123] Moreover, a general picture of Sergeant Hughes’ conduct of the case emerges from Mr. Copeland’s testimony:

Q. In the course of [Mr. Lapkin’s] testimony, reference was made to Officer Hughes and in the course of your investigation and preparing for trial, did you ever catch up with Officer Hughes?

A. I had spoken to Officer Hughes on a number of occasions from when I first came on the case until, I suppose, the end of the day and I spoke with him certainly after the trial.

Q. Did you learn anything of significance as a result of those conversations?

A. Officer Hughes to my mind was quite helpful to me in regard to particularly getting occurrence reports in regard to Mr. Cantero. I talked earlier about the disclosure regime that was in place at that time and it was not a great regime. It was at times like pulling teeth as far as getting material from the police department. Sergeant Hughes, when I mention to him that there was something I wanted, generally speaking, he would expend some effort and come up with the material. I do recall - - again, I don’t have the material now because the file is elsewhere, that I got occurrence reports in relation to Mr. Cantero and there is reference in the letters to some aspects of his involvement certainly being a complainant in the two robbery charges would have only come from material I received from the police through Sergeant Hughes.

[124] I do not provide these snapshots about the conduct of Mr. Oniel and Sergeant Hughes to support a conclusion that the respondents were not actuated by malice, although I note that this is the conclusion the jury reached. Rather, I cite them to show that it is unfair for this court to reach the opposite conclusion and express it in the condemnatory language of “reckless indifference to the guilt or innocence of the accused”.

[125] Third, I agree with Borins J.A. that “[g]enerally speaking . . . where there has been misdirection that satisfies the court that had the jury been properly directed it would not necessarily have reached the same verdict, a new trial is ordered”. I also agree with him about the test for exceptions to this general rule: “when an appellate court is satisfied that all the facts are before it, and they are such that only one verdict could be given by a properly instructed jury, acting reasonably and judicially, the court is not bound to order a new trial, but has jurisdiction which it ought to exercise, to direct that judgment be entered notwithstanding the verdict of the jury”.

[126] I part company from my colleague when he concludes that this case meets the test for the exception to the general rule. I sympathize with my colleague’s concern that a new trial will be a third trial. However, it is wrong to solve this problem by resolving the case against the respondents at the appellate level. Two juries have concluded that the respondents were not actuated by malice. Even if the juries were not properly instructed (a conclusion I dispute with respect to the second trial), on the basis of the record, it is entirely possible that a third jury will reach precisely the same conclusion. In short, this case is far removed from the “only one verdict could be given” component of the test relating to appellate reversal of a jury verdict.

[127] Finally, I observe that a finding that the respondents were actuated by malice in the performance of their professional duties is a particularly serious finding. For a police officer, the stain of a finding of ‘malicious prosecution’ would be the equivalent to a finding that a judge displayed actual bias in a case. It is a very serious matter.

[128] Sergeant Hughes, who served as a police officer for many years, is dead. Constable Hegenauer had been a police officer for twenty-three years when he testified at the trial. In my view, it would be exceedingly unfair to the memory of the former and the reputation of the latter for this court to overturn the jury’s clear finding and stain the respondents with the label proposed by my colleague, “reckless indifference to the guilt or innocence of the accused”. If that label is to be applied to the respondents, it should come from a decision of a jury, not from this court overriding a decision of a jury.

Summary

[129] Borins J.A. concludes that the trial judge misdirected the jury with respect to the ingredients of malice.

[130] I disagree. The trial judge’s charge followed a longstanding and widely accepted jury charge. Moreover, in the circumstances of this case, it was properly anchored both in the principal meaning of malice articulated by the Supreme Court of Canada in Nelles v. Ontario and in the case as presented by the plaintiff.

[131] Borins J.A. concludes that the trial judge improperly cut off cross-examination of a witness, misstated the evidence in his jury charge, dealt too extensively and in an unfair and prejudicial way with one component of the evidence in his charge, and made an ineffectual recharge to the jury.

[132] I disagree. None of these criticisms is relevant to the definition of malice, which is the ground on which my colleague would allow the appeal. Moreover, all of the criticisms are, in my view, incorrect.

[133] Borins J.A. proposes a remedy of an appellate award of damages to the appellant at this juncture.

[134] I disagree. There is no basis for this court to override the jury’s verdict on the question of malice and reach the opposite conclusion because “only one verdict could be given”.

[135] Accordingly, I dissent. I would dismiss the appeal.

Released: January 18, 2001

(signed) “J. C. MacPherson J.A.”

[^1]: I note that, for scheduling reasons, the trial did not commence until December 15 although the parties and counsel were present on December 1. Nothing turns on this delay. The appellant’s entreaties to abandon the prosecution and the Crown’s consideration of its position were all concluded by December 1.