DATE: 20040927

DOCKET: C40609

COURT OF APPEAL FOR ONTARIO

SIMMONS and ARMSTRONG JJ.A., and LANE J. (ad hoc)

B E T W E E N:

M.A.S., a minor, by his litigation guardian M.S., M.S.

Jerry O’Brien, for the plaintiffs (appellants)

Plaintiffs (Appellants)

• and -

WILLIAM LUDWIG, CHATHAM POLICE SERVICES BOARD, CHATHAM-KENT POLICE SERVICES BOARD, CHIEF DON ROSKAMP

Sheila Handler, for the defendants (respondents)

Defendants (Respondents)

Heard: March 23, 2004

On appeal from the order of Justice Helen A. Rady of the Superior Court of Justice dated August 13, 2003.

ARMSTRONG J.A.:

[1] The appellants brought this action against the Chatham-Kent Police Services Board and others including Detective William Ludwig (“Ludwig”) for misfeasance in public office and a number of other causes of action. In the second amended Statement of Claim (the “statement of claim”), the appellants relied upon certain admissions and statements made by Ludwig in testimony which he gave during an inquest. On a motion before Rady J. of the Superior Court of Justice, she struck out the paragraphs of the pleading which made reference to the admissions and statements of Ludwig pursuant to rule 25.11 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194. In doing so, she found that Ludwig’s inquest testimony was protected under s. 42(1) of the Coroners Act, R.S.O. 1990, c. C. 37 (sometimes referred to as the “Act”).

[2] This appeal raises the scope of s. 42(1) of the Coroners Act and, in particular, whether it prevents the appellants from pleading admissions and statements made by Ludwig in his testimony at an inquest.

Factual Background

[3] In a motion of this kind, the facts as pleaded are taken to be true. What follows is a brief summary of the allegations in the statement of claim.

[4] On February 6, 1998, the appellant M.A.S., was 12 years old and a grade 6 student at St. Agnes School in Chatham. During the lunch hour, he entered the boys’ washroom and discovered the body of a grade 3 student hanging from a door. The grade 3 student subsequently died. A police investigation, headed by Detective Ludwig, was commenced immediately. Ludwig interviewed M.A.S. on February 6 at the school. On the following day, he conducted a video taped interview of M.A.S. at the police station which lasted for several hours. Following the interview and a number of exchanges between Ludwig and the father of M.A.S., the boy was advised that he would be charged with criminal negligence causing grievous bodily harm.

[5] Ludwig subsequently proceeded with an aggressive investigation of M.A.S. He attended the boy’s residence with a search warrant and two uniformed officers dragged M.A.S. out of his bedroom in his underwear.

[6] In November 1998, a team of officers from the Toronto Police Services reviewed the investigation of the Chatham-Kent Police Services. The Toronto Police Services report of April 1999 stated that there was insufficient evidence available to conclude that a crime had been committed.

[7] A coroner’s inquest was conducted between March 7 and April 12, 2000. Ludwig testified during the inquest. The following paragraphs of the statement of claim relate to his inquest testimony:

124A During the inquest, the defendant Ludwig admitted that:

(a) he and Chatham Police ran with an early theory of homicide by MAS and another boy;

(b) that he and Chatham police had no hard evidence that MAS was involved in [the deceased’s] death.

124B During the inquest, the defendant Ludwig testified that MAS and another boy were criminally involved with [the deceased’s] death.

124C There was no reasonable and probable factual basis for the defendant Ludwig to testify or opine that MAS and another boy were criminally involved with [the deceased’s] death.

124D During the inquest, the defendant Ludwig improperly sought to have the jury determine that MAS and another boy were criminally involved with [the deceased’s] death.

[8] The coroner’s counsel advised the inquest jury to find that the death of the grade 3 student was an accident. The jury concluded that the cause of death was undetermined. The jury made certain recommendations concerning inappropriate police interviewing and emphasized the necessity for police training in respect of the interviewing of children.

[9] The respondents moved to strike out paragraphs 124A, 124B, 124C and 124D of the statement of claim pursuant to rules 21.01 and 25.11 of the Rules of Civil Procedure, as offending s. 42(1) of the Coroners Act which provides:

PROTECTION OF WITNESSES – (1) A witness at an inquest shall be deemed to have objected to answer any question asked the witness upon the ground that his or her answer may tend to criminate the witness or may tend to establish his or her liability to civil proceedings at the instance of the Crown, or of any person, and no answer given by a witness at an inquest shall be used or be receivable in evidence against the witness in any trial or other proceedings against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence.

[10] The motions judge concluded:

The plaintiffs have pleaded Ludwig’s testimony in support of their allegation that he acted with malice and mala fides in the execution of his public office. Put another way, the plaintiffs are not using Ludwig’s inquest testimony for the limited purpose of impeaching his credibility. In my view, s. 42(1) of the Coroners Act is quite clear. It protects all answers given by a witness at an inquest such that they cannot be used or be receivable in evidence in a subsequent trial or proceeding against the witness, except perhaps to impeach the witness’ credibility or in a perjury prosecution. Because Ludwig’s testimony would be inadmissible at trial, the impugned paragraphs must be struck from the pleadings under Rule 25.11.

The Appeal

[11] In their factum, the appellants state that the issue in this appeal may be framed as follows:

Should allegations in a statement of claim that a detective [who], without any reasonable factual basis, testified at an inquest that the child-plaintiff was criminally involved in a death, be struck out as an abuse of process in an action alleging, inter alia, malice and misfeasance in office on the part of the detective, because of Section 42 of the Coroners Act?

[12] The appellants make the following submissions in respect of s. 42(1) of the Coroners Act:

(i) Section 42(1) of the Act is restricted to the admissibility of evidence at trial and ought not to be invoked at the pleadings stage;

(ii) Section 42(1) of the Act invokes the right to protection against self-incrimination. What is alleged against Ludwig is not self-incrimination.

(iii) Section 42(1) of the Act contains an exception for “a prosecution for perjury in giving such evidence”. Prosecution includes a civil action.

(iv) s. 42(1) of the Act does not provide blanket protection to a witness in view of the Supreme Court’s decision in R. v. Kuldip.

(v) Section 42(1) of the Act does not apply to the allegations in paragraph 124D of the statement of claim as they do not make any allegation directed at Ludwig’s answers at the inquest.

[13] The appellants also address the common law defence of absolute privilege in anticipation that such defence will be pleaded by the respondents. The appellants submit that the defence of absolute privilege does not apply to proceedings before a coroner’s inquest because such proceedings are not judicial proceedings.

Analysis

(i) Can s. 42(1) of the Coroners Act be invoked at the pleading stage?

[14] The motions judge exercised her power to strike the impugned paragraphs of the statement of claim under rule 25.11 because, in her view, Ludwig’s inquest testimony would be inadmissible at trial. This court has said that because the exercise of discretion under rule 25.11 “denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases.” See Wernikowski v. Kirkland, Murphy and Ain (1991), 1999 3822 (ON CA), 50 O.R. (3d) 124 at p. 129.

[15] In my opinion, this is a “clearest case” and no purpose would be served by awaiting trial to deal with the issue. Indeed, one of the purposes of rule 25.11 is to permit an “expeditious determination of claims that cannot succeed”. See Wernikowski, supra, at p. 128.

(ii) Do the allegations against Ludwig involve self-incrimination?

[16] While the statements made by Ludwig may not be incriminating in a criminal law sense, I need not answer this question. Section 42(1) of the Act provides a much broader protective shield for inquest testimony. The protection covers a witness’s answer to a question that “may tend to criminate the witness or may tend to establish his or her liability to civil proceedings…” (emphasis added).

[17] In paragraphs 124A, 124B and 124C, the appellants expressly refer to the testimony given by Ludwig at the inquest. The appellants rely upon this testimony to establish Ludwig’s civil liability for the tort of misfeasance in public office and the other causes of action raised in the statement of claim.

(iii) The prosecution for perjury exception – does it apply?

[18] The appellants submit that the allegations against Ludwig flow from his “perjurious use of the inquest process…in an attempt to procure a finding of criminal responsibility on the part of [M.A.S.].” They further submit that the prosecution for perjury exception in s. 42(1) of the Act includes a civil action.

[19] The appellants rely upon the definition of “prosecution” found in Black’s law dictionary, 6th edition at page 1221 which provides:

Prosecution A criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime.

The term is also used respecting civil litigation, and includes every step in [an] action, from its commencement to its final determination.

It appears clear to me that the editors of Black’s regard the primary meaning of “prosecution” as referring to a criminal proceeding. In my view, the legislature was referring to prosecution in the criminal law sense when it created the prosecution for perjury exception in s. 42(1) of the Act. The prosecution for perjury exemption therefore has no application to this case.

(iv) The application of R. v. Kuldip

[20] In Caron v. Chodon Estate, [1989] O.J. No. 3041, Isaac, J. held that s. 42(1) of the Act provided blanket protection to a witness against the use of his or her inquest evidence to establish civil liability and to protect the witness from the use of his or her evidence to impeach his or her credibility. The appellants submitted before the motions judge and in this court that the subsequent judgment of the Supreme Court of Canada in R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618 has significantly modified the protection provided by s. 42(1) of the Act. The appellants argue that Kuldip made it clear that the provisions of s. 13 of the Charter of Rights and Freedoms and of s. 5(2) of the Canada Evidence Act – a similar provision to s. 42(1) of the Act – do not provide absolute immunity and, therefore, the issue here should be left to the trial judge.

[21] In Kuldip, the accused was charged under the Criminal Code with failing to stop at the scene of an accident. He was convicted at his first trial and, on appeal, a new trial was ordered. On the re-trial, the Crown cross-examined the accused on the evidence he gave at the first trial for the purpose of impeaching his credibility. The majority of the Supreme Court held that there should be “a distinction between a cross-examination made for the purpose of impeaching credibility and one made to ‘incriminate’ the accused, that is to establish guilt.” Lamer C.J., writing for the majority, went on to say, “using a prior inconsistent statement from a former proceeding during cross-examination in order to impugn the credibility of an accused does not, in my view, incriminate that accused person.” See R. v. Kuldip, supra para. 28.

[22] In its subsequent decision in R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433, the Supreme Court of Canada has further refined the principles of Kuldip and clarified that if the prior evidence was incriminating when it was given, its subsequent use must be totally prohibited, even if it is tendered for the limited purpose of testing credibility, unless there is no realistic danger of incrimination. See also R. v. Allen, 2003 SCC 18, [2003] 1 S.C.R. 223; R. v. Kinkead (2003), 2003 52177 (ON CA), 67 O.R. (3d) 57 (C.A.).

[23] I agree with the motions judge’s analysis of the application of Kuldip to the case at bar. She correctly held:

With respect to the protection afforded by s. 5, the Supreme Court held that an accused’s prior testimony may be used to cross-examine the accused to impeach his credibility but it cannot be tendered as evidence to establish the truth of its contents.

The plaintiffs suggest that although Kuldip involved criminal proceedings, the analysis is equally applicable to civil proceedings and that given the similarity between s. 5 of the Canada Evidence Act and s. 42(1) of the Coroners Act, this court should draw the same distinction between the intended use of prior testimony as in Kuldip. I tend to agree with that submission and as a result, it is conceivable that Ludwig’s testimony at the coroner’s inquest might be used against him to impeach his credibility.

However, as I see it, that is not the purpose of the impugned pleadings. The plaintiffs have pleaded Ludwig’s testimony in support of their allegation that he acted with malice and mala fides in the execution of his public office. Put another way, the plaintiffs are not using Ludwig’s inquest testimony for the limited purpose of impeaching his credibility. In my view, s. 42(1) of the Coroners Act is quite clear. It protects all answers given by a witness at an inquest such that they cannot be used or be receivable in evidence in a subsequent trial or proceeding against the witness, except perhaps to impeach the witness’ credibility or in a perjury prosecution. Because Ludwig’s testimony would be inadmissible at trial, the impugned paragraphs must be struck from the pleadings under Rule 25.11

(v) Does s. 42(1) of the Act apply to the allegations in paragraph 124D of the statement of claim?

[24] For ease of reference, I repeat the allegations contained in paragraph 124D of the statement of claim:

During the inquest, the defendant Ludwig improperly sought to have the jury determine that M.A.S. and another boy were criminally involved with Myles’ death.

[25] There is no direct reference in the above allegation to the testimony of Ludwig. The motions judge did not deal with paragraph 124D separately from the other impugned paragraphs. On its face, paragraph 124D does not expressly offend s. 42(1) of the Act. It may be that the evidence which supports the allegation is the evidence of Ludwig at the inquest. If that is so, the trial judge will rule it inadmissible. However, at this stage, I do not see that this is a “clearest case” and I believe the motions judge erred in striking paragraph 124D from the pleading.

Does the common law defence of absolute privilege apply to proceedings before a coroner?

[26] Since I have disposed of this matter by the application of s. 42(1) of the Coroners Act, I find it unnecessary to deal with this issue.

Disposition

[27] In the result, I would dismiss the appeal insofar as it relates to paragraphs 124A, 124B and 124C of the statement of claim. I would allow the appeal as it relates to paragraph 124D.

Costs

[28] The respondents have been largely successful in upholding the order of the motions judge. I would award them their costs on a partial indemnity basis fixed in the sum of $3,873.94 including Goods and Services Tax. I note that in the bill of costs submitted, no disbursements were included and, therefore, none are awarded.

RELEASED:

“SEPT 27 2004” “Robert P. Armstrong J.A.”

“I agree Janet Simmons J.A.”

“I agree D. Lane J. (ad hoc)”