DATE: 20051214

DOCKET: C43348

COURT OF APPEAL FOR ONTARIO

FELDMAN, BLAIR and LAFORME J.J.A.

B E T W E E N :

MIGUNA MIGUNA

Miguna Miguna, in person

Appellant

• and -

ATTORNEY GENERAL FOR ONTARIO, TORONTO POLICE SERVICES BOARD, TORONTO POLICE CHIEF JULIAN FANTINO, LEGAL AID ONTARIO, ROGER SHALLOW, FRED BRALEY, ALLESSANDRO “ALEX” PANDOLFI, AUDREY CHEN, WENDY LEAVER, L. MURAROTTO, HUGO COUTO and PASQUALE ALBERGA

John Zarudny and James Kendik, for Her Majesty the Queen in right of Ontario, Attorney General for Ontario, Roger Shallow and Fred Braley

Michael E. Smith and Kathryn Kirkpatrick, for Toronto Police Services Board, Chief Julian Fantino, Allessandro “Alex” and

Respondents

Pandolfi, Audrey Chen, Wendy

Leaver, L. Murarotto, Hugo Couto

AND BETWEEN:

MIGUNA MIGUNA

Appellant

• and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Respondent

Pasquale Alberga

Heard: December 1, 2005

On appeal from the order of Justice Victor Paisley of the Superior Court of Justice, dated March 22, 2005.

R.A. BLAIR J.A.:

Background

[1] Miguna Miguna is a barrister and solicitor, practising in the areas of human rights law and immigration and refugee law, amongst others. He was born in Kenya, subsequently immigrated to Canada and became a Canadian citizen. He was called to the Ontario Bar in 1995.

[2] On November 4, 2002, he was arrested at his law offices and charged with sexual assault following a complaint from one of his immigration clients. On July 14, 2003, when he appeared in court for the commencement of his trial on that charge, he was arrested again and charged with three further counts of sexual assault arising out of the complaints of another immigration client. Both arrests took place in front of colleagues and the public. He alleges that he was arrested, searched, handcuffed and detained in full public view at the court house on July 14 notwithstanding that he had, four days earlier, attended voluntarily at the police station, with his lawyer, in response to a police query to his staff about his whereabouts during an absence from his office while he was in Kenya.

[3] On June 23, 2004, he was acquitted of all charges by Justice Moore of the Ontario Court of Justice. The trial judge accepted his evidence, found that there were contradictions in the testimony of the two complainants and was suspicious that they had a common motive to implicate Mr. Miguna and concluded that the police investigation of the case was wanting in some respects.

[4] Mr. Miguna commenced these two proceedings against the Crown Attorney defendants, the Police defendants, Her Majesty the Queen, and the Attorney General for Ontario and Legal Aid Ontario, alleging malicious prosecution (including a serious allegation of racial profiling), breach of his Charter rights, negligent investigation and assault on the part of the police, and a galaxy of other “causes of action”, some of which exist in law and some of which do not. On motion of the Crown and police defendants, Justice Paisley struck the statements of claim and refused leave to amend. He awarded substantial indemnity costs against Mr. Miguna in the total amount of $89,243.00.

[5] Mr. Miguna appeals these orders and seeks to have the two actions reinstated except as against the defendants the Attorney General for Ontario and Legal Aid Ontario.

[6] For the reasons that follow, I would allow the appeal, set aside the order striking the statement of claim in the action against the Crown and police defendants (except with respect to the Attorney General for Ontario and Legal Aid Ontario), and grant the plaintiff leave to amend. The appeal from the order striking the claim in the second action against Her Majesty the Queen is dismissed. The cost order falls with the granting of the first appeal.

The Action Against Her Majesty the Queen

[7] The action against Her Majesty the Queen is a nullity because it was not commenced in compliance with s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. That section provides that no action may be commenced against the Crown without sixty days prior notice having been given. Here, the Crown was provided with notice of intention to sue on September 1, 2004. The statement of claim was issued on September 13, 2004.

[8] As a result of the failure to comply with these requirements the action is a nullity and was properly struck. The appeal in this respect must therefore be dismissed.

The Action Against the Crown Attorneys and Police Defendants

[9] On a motion to strike a pleading pursuant to Rule 21 of the Rules of Civil Procedure the facts as pleaded in the statement of claim must be taken to be true, although allegations of assumptions and speculation need not be accepted as such: see Operation Dismantle v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441 at 455. Where malice is alleged, full particulars must be provided: Rule 25.06(8). For a claim to be struck, it must be “plain and obvious” that no cause of action is disclosed: Hunt v. Carey, 1990 90 (SCC), [1990] 2 S.C.R. 959.

[10] In Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, and later in Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, the Supreme Court of Canada emphasized that the threshold for Crown liability for prosecutorial misconduct is very high. This is – as Binnie and Iacobucci JJ. said in Proulx at para. 4 – “so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances”. At para. 8 they added, “[a] failed prosecution does not without more – much more – give rise to a viable claim for prosecutorial wrongdoing”. In Nelles, Lamer J. expressed the view that the availability of the Rule 21 motion to strike a claim as disclosing no cause of action would serve as a healthy brake on such actions (p. 197). At p. 199 he said:

There is no doubt that the policy considerations in favour of absolute immunity have some merit. But in my view those considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim. In my view the inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out the meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their important public duties.

[11] Thus there exists a narrow exception to the Crown’s immunity from suit for prosecutorial misconduct in cases where “the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim”. Whether that narrow exception is confined to the tort known as “malicious prosecution” is not clear from the authorities. But one thing is clear: however the claim is framed, the Crown’s conduct must rise to the level of malice. Malice is defined for these purposes as “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’” and one in which the defendant “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”: Nelles, at 193-194. No action lies against a Crown Attorney for prosecutorial misconduct that sounds in negligence.

[12] There is a claim in law against the police for negligent investigation, however: see Beckstead v. Ottawa (City) Chief of Police (1997), 1997 1583 (ON CA), 37 O.R. (3d) 62 (Ont. C.A.); Hill v. Hamilton-Wentworth Regional Police Services Board, 2005 34230 (ON CA), [2005] O.J. No. 4045. As well, police may be liable for independent torts committed during the course of their duties, such as false arrest, false imprisonment, and assault and battery.

[13] The issue here is whether Mr. Miguna’s statement of claim discloses permissible causes of action against the Crown Attorney defendants and/or the Police defendants, or whether, if leave to amend is granted, the statement of claim could do so. We must be satisfied that the motion judge erred in the exercise of his discretion not to permit leave to amend, before we can interfere.

[14] By any standards, Mr Miguna’s statement of claim is not well pleaded. He is claiming $17.5 million in damages and alleging the gravest of allegations against the Crown Attorney and Police defendants. Yet, instead of focusing his claim and the factual assertions supporting it on the few bases that may be open to him, he has taken the scattergun approach and raises – according to the respondents’ count – somewhere between sixteen and twenty-five causes of action. These include: malicious prosecution, breach of Charter rights, prosecutorial misfeasance (abuse of process, abuse of power), negligent investigation, conspiracy, fraudulent misrepresentation, unlawful arrest and detention, assault and battery, defamation, incompetence, recklessness, wilful blindness, racial profiling, interference with bodily security, cruel unusual and oppressive treatment, and breach of trust.

[15] In addition, Mr. Miguna’s statement of claim confuses the need to plead the material facts relied upon – and in the case of malicious prosecution, the need to do so with full particularity – with the view that superimposing pejorative adverbs or adjectives one upon the other is a suitable substitute for pleading facts. For example, each of the Crown Attorney defendants is repeatedly alleged to have “negligently, incompetently, unethically, recklessly, and unprofessionally” (and, occasionally, “arrogantly”) engaged in various types of impugned activities. But the pleading is very sparse when it comes to setting out material facts in support of the sweeping allegations made.

[16] Having said that, however, the statement of claim does contain some basis for alleging the core causes of action that are asserted, and in my view, Mr. Miguna should be given an opportunity to amend to make out his case properly on a pleading basis. For instance, he alleges that:

a) he was arrested without reasonable cause and without the police having conducted a proper investigation on both November 4, 2002 (at his law office) and July 14, 2003 (at the courthouse);

b) both arrests were made publicly with a view to embarrassing and humiliating him in front of staff, professional colleagues, the judiciary, members of courts administration and the public;

c) the July 14 arrest was carried out in full public view, and on the instructions of the Crown, notwithstanding that Mr. Miguna and his lawyer had only four days previously attended at the police station in response to an indication that the police had been looking for him;

d) Crown Attorney Shallow directed the police officers to have Mr. Miguna arrested;

e) the trial judge acquitted him because, amongst other things, (i) the police failed to conduct a full investigation and to interview important witnesses, (ii) he was suspicious the complainants had a common motive to implicate Mr. Miguna, and (iii) he found Mr. Miguna to be a credible witness; in addition, the trial judge also alluded to the fact that Mr. Miguna was arrested on July 14, 2003, “despite offers by Mr. Miguna and his counsel to present himself to the police prior to that date”;

f) Crown Attorney Shallow, alone or with the other defendants, sent fake clients to Mr. Miguna with the aim of entrapping him;

g) Crown Attorney Shallow continued to prosecute him when he (Shallow) knew or ought to have known that the complainants had falsely accused Mr. Miguna, misrepresented facts and evidence to the Ontario Court of Justice, interfered with witnesses, concealed evidence from the defence and the Court and counselled witnesses to commit perjury;

h) Crown Attorney Braley engaged in activities similar to those outlined in (g) above;

i) both Shallow and Braley participated in causing the venue of Mr. Miguna’s trial to be changed from the Ontario Court of Justice at 1000 Finch Ave. to the Court located at College Park in downtown Toronto with the intention of further injuring his professional reputation;

j) all individual defendants participated in racial profiling against him;

k) the Police defendants failed to investigate the complainants’ allegations against him prudently and to follow up where required, continued with the prosecution when they knew or ought to have known there was no reasonable basis for it, participated in the presentation of false evidence, failed to make full disclosure, and withheld evidence; and

l) he was assaulted by the police and subject to an illegal strip search during his detentions.

[17] These are very serious allegations, and are, of course, only allegations at this stage of the proceedings. Mr. Miguna fails to establish them at his peril in terms of costs and, possibly, his reputation. For the most part, the allegations are pleaded in an unacceptably bald fashion. However, if appropriately supported by material facts, and proven, they – and other facts pleaded – could support claims for malicious prosecution, breach of the Charter and misfeasance in public office as against the Crown Attorney and Police defendants, and as against the Police defendants alone claims for negligent investigation, unlawful arrest, false imprisonment, and assault and battery. In my view, the plaintiff should be entitled to one more chance to attempt to plead these claims properly.

[18] At the same time, it is appropriate to reiterate at this point the observation of Dickson J. in Operation Dismantle, supra, at p. 455 that “allegations based on assumptions and speculation” need not be taken as true, because it would be improper to do so, as they are incapable of proof. Mr. Miguna must have knowledge of the facts supporting his claims and not merely plead allegations that he believes may or may not be true. Rosenberg J. put it this way, in Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 6761 (ON SC), 12 O.R. (3d) 750 (H.C.J.) at 757:

. . . If the plaintiff does not at the outset have knowledge of the facts that give rise to the conclusions of malice, breach of duty, conspiracy to intentionally injure, etc., then it is inappropriate to make these allegations in the statement of claim. It may be that in the future the plaintiff will determine facts as a result of discovery or in some other way that will support some or all of the allegations. . . [B]ut until the plaintiff has knowledge of some facts on which to base the conclusions alleged in the statement of claim, it is improper to allow these conclusions to be pleaded baldly and without any supporting facts.

[19] The motion judge accepted the respondents’ arguments that the statement of claim in its entirety was deficient, as several torts alleged were unknown to law, Her Majesty, the Attorney General and the Crown Attorneys were immune from suit with respect to others that were raised, and sufficient facts were not pleaded to support the claims that could be asserted in law. In spite of these factors, it seems that the motion judge, himself, was of the view that the deficiencies might be cured by amendment with respect to the permissible causes of action. He concluded, however, that he should exercise his discretion not to grant leave to amend. His exercise of discretion was based upon the following considerations:

a) the appellant had been made aware of the deficiencies in the pleading and had had ample opportunity to amend, but had not done so (and the proposed amended statement of claim presented at the hearing was deemed to be similarly deficient);

b) the appellant had committed a grievous error in misrepresenting the reasons of the trial judge at the criminal trial on the charges of sexual assault; and,

c) the appellant had made bald allegations of racial profiling, which amounted to a serious abuse.

[20] Respectfully, the motion judge erred in principle in refusing to grant Mr. Miguna leave to amend his statement of claim for the foregoing reasons, in the circumstances of this case. He placed too much emphasis on what he perceived as the appellant’s failure to move quickly to deliver a proper amended statement of claim, in the face of the respondents’ criticisms of his pleading, and he appears to have reacted so as to punish Mr. Miguna for his erroneous characterization of the reasons of the trial judge at his criminal trial and for his allegations of racial profiling. These are factors that might well attract cost consequences as a sanction, but they do not justify a refusal to grant leave to amend in the circumstances.

[21] The plaintiff’s pleading is bald and wanting in supporting material facts. The factual assertions gleaned from the statement of claim and outlined above, however – together with certain others not mentioned – if proved, could give rise to the essentials of the causes of action also summarized above. Those claims, at least, are not claims that Mr. Miguna is forbidden by law from asserting.

[22] Of the three principal grounds relied upon by the motion judge for declining to grant leave to amend, the fact that the allegations are bald is not, in itself, a basis for refusing leave. It is only where it is clear that the plaintiff cannot allege further material facts that he knows to be true to support the allegations that leave to amend will be refused. While it may turn out that such is the case here, I am not satisfied at this stage that that is necessarily so.

[23] There was much debate at the hearing about the motion judges’ first basis for declining leave, namely the notion that Mr. Miguna had had ample opportunity to attempt to correct the deficiencies in his statement of claim but had refused or failed to do so. The motion judge was very impressed with the factums of the Crown defendants and the Police defendants that were filed before him – he relief upon them very heavily – and was of the view that anyone reading their detailed critique of the statement of claim would have been aware of the weaknesses in it and would have taken steps to correct them. While the motion judge was entitled to be impressed with the factums filed before him, as they were excellent factums and undoubtedly very helpful to him, it does not follow that they were necessarily instructive to the opposing pleader as to how to redraft the pleading. In any event, the time delay was nowhere near, for example, the nine months that was involved in Wilson v. Toronto (Metropolitan Police Service), [2001] O.J. No. 2434 (S.C.J.) on which the motion judge relied. Here, the delay was only approximately two and a half months. I note as well that this was the first time his pleading had been considered by the court.

[24] Finally, I do not think it was permissible for the motion judge to overreact – as he seems to have done – to the misstatements admittedly made by Mr. Miguna in his statement of claim respecting the trial judge’s reasons for acquittal and to the allegation of racial profiling. Both are ominous allegations, and it is true, as the motion judge observed, that the trial judge did not state the defendants had acted maliciously or were actuated by malice, or find that a conspiracy existed, or find that anyone had lied – all of which the pleading suggests. However, the test for granting leave to amend a pleading is not whether the pleader should be punished for previous misstatements or for making serious but bald allegations; rather, the test is whether the amendment can properly be made without prejudice to the other side. Here, there is no prejudice to the respondents in permitting Mr. Miguna an opportunity to rescue his statement of claim by properly pleading the facts within his knowledge relevant to the causes of action available to him that do exist in law.

Disposition

[25] For the foregoing reasons, then,

a) the appeal with respect to the dismissal of the action against Her Majesty the Queen (action No. 04-CV-275438CM1) is dismissed;

b) the order of Paisley J. dismissing the action against the Crown Attorney defendants and the Police defendants (action No. 04-CV-272928CM1) is set aside, except with respect to the defendants Attorney General of Ontario and Legal Aid Ontario; and,

c) the plaintiff is granted leave to deliver a fresh statement of claim, within 30 days of the date of this order.

d) The order of Paisley J. fixing costs is set aside.

[26] Even if Paisley J. had made the order I would now make, striking the statement of claim with leave to amend, the respondents would have been entitled to partial indemnity costs of the motion before him. I would award the respondents costs of the motion before Paisley J., on the basis of a motion to strike with leave to amend, payable on a partial indemnity basis and in the cause.

[27] In view of the indulgence being granted Mr. Miguna, I would not award any costs of the appeal.

“R.A. Blair J.A.”

“I agree K. Feldman J.A.”

“I agree H.S. LaForme J.A.”

RELEASED: December 14, 2005