WARNING
Section 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 may apply:
Prohibition re identifying child
87(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
COURT OF APPEAL FOR ONTARIO DATE: 20211028 DOCKET: C67741
Benotto, Huscroft and Thorburn JJ.A.
BETWEEN
P.Y. and A.Y. Plaintiffs (Appellants)
and
The Attorney General of Ontario, Toronto Police Services Board, The Police Chief William Blair, Police Constable Lee Ann West, Police Constable Sidhu Sarbjeet, and Laurie Gonet Defendants (Respondents)
P.Y. and A.Y., acting in person Domenic Polla, for the respondents The Attorney General of Ontario and Laurie Gonet Graham Thomson, for the respondents Toronto Police Services Board, The Police Chief William Blair, Police Constable Lee Ann West, and Police Constable Sarbjeet Dhugha
Heard: September 8, 2021 by video conference
On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated October 22, 2019.
Benotto J.A.:
Overview
[1] In 2011, P.Y. (the father) and A.Y. (the mother) were criminally charged with thirteen counts relating to the alleged abuse of their four children: Y.N.Y., M.L.Y., S.C.H.Y., and M.K.Y. After a preliminary inquiry, it was determined that the parents would stand trial on seven of the thirteen charges. All four children were removed from their parents’ care by the Catholic Children’s Aid Society (“CCAS”) and became Crown wards. A different Crown Attorney was assigned the case and charges were withdrawn, in part, because Y.N.Y. and M.L.Y. were reluctant to testify and see their parents in court.
[2] P.Y. and A.Y. sued the Attorney General of Ontario, Laurie Gonet who was the Assistant Crown Attorney originally assigned to prosecute the case, the CCAS, the Crown, the Toronto Police Services Board (“TPSB”), former Police Chief William Blair, Lee Ann West (“Officer West”), and Sarbjeet Dhuga (“Officer Dhuga”).
[3] The defendants brought a successful motion for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the action was dismissed.
[4] P.Y. and A.Y. now appeal.
[5] I would dismiss the appeal.
Facts
Charges against the appellants
[6] In March of 2011, an employee of the CCAS reported a possible case of child abuse involving the appellants’ son and oldest child, Y.N.Y., to Officer Dhuga. In April of 2011, Officer Dhuga and Officer West attended the appellants’ home and spoke with the appellants and their children. At that time, Officer Dhuga believed that the injuries had occurred at school and that there were insufficient grounds to support any further criminal investigation.
[7] On November 16, 2011, a different worker with the CCAS advised Officer West that M.L.Y. had followed a classmate home after school because she was afraid to go home. The worker told Officer West that M.L.Y. told her that the mother had whipped her, pushed her off a chair, stepped on her stomach, and choked her because she had spoken with a Society worker at school. M.L.Y. said the same thing had happened to Y.N.Y. because he spoke to a social worker. She said that she did not want to get hit anymore.
[8] On November 16, 2011, M.L.Y. was formally interviewed. In the video recording the child stated:
- The parents put hot peppers in her eyes, ears, nose, and armpits as punishment.
- The parents punished her with a cold bath for two hours.
- The father whipped her with a shoehorn leaving a scar on her leg.
- She had been hit with a belt approximately 45 times, most recently on November 14, 2011, two days before the interview.
- The mother had slapped her, pushed her to the ground, and stepped on her stomach and throat.
- That morning, the mother had punched her in the stomach, pushed her off a chair, pushed her so that she hit her head, pushed her up against a wall, threw her onto the floor, and stepped on her stomach.
[9] Both parents were arrested and charged.
[10] On November 17, 2011, M.L.Y. was examined at the Hospital for Sick Children. Officer West received the results. The examination revealed two long parallel marks on M.L.Y.’s leg that the examining doctor noted likely occurred because of the impact of an object. The examination also revealed other non-specific markings on M.L.Y.’s body that could be consistent with other injuries, though the dates of these injuries and whether they were intentionally inflicted could not be confirmed. M.L.Y. was also seen by a psychologist. The Toronto Police Service (“TPS”) obtained copies of these medical records.
[11] On November 18, 2011, Officer Dhuga formally interviewed the three other children, who corroborated M.L.Y.’s statement. Y.N.Y. stated that the parents had repeatedly assaulted the children including using their hands, a belt, and a shoe. The TPS obtained a medical record from the Trillium Health Centre, which confirmed that between September and November of 2011, Y.N.Y. had been treated for a laceration to his right ear caused by being pushed into a wall.
[12] P.Y. was charged with additional offences as a result of Y.N.Y.’s disclosures.
[13] In December 2011, M.L.Y. made an additional allegation that her father had placed hot pepper sauce in her vagina. A medical examination could neither confirm nor deny that this had occurred.
[14] By January 6, 2012, there were thirteen charges against the appellants. Crown Attorney Laurie Gonet was assigned to the case. She reviewed the Crown brief and all the materials provided by the police, including the investigators’ notes, the video recordings, transcripts of the interviews of the witnesses, and the medical evidence. She was satisfied that there was a reasonable prospect of conviction on the charges against the appellants and that it was in the public interest to proceed with the prosecution.
The preliminary inquiry
[15] The preliminary inquiry took place over six days. M.L.Y. and Y.N.Y. gave evidence consistent with their statements.
[16] On the final day of the preliminary inquiry on April 2, 2013, Ms. Gonet invited the court to discharge the appellants on five of the thirteen counts, on the basis either that there was no evidence in respect of those counts or that there were issues with respect to the dates alleged in the Information. The court also discharged certain counts. Ms. Gonet further requested that the court amend three of the counts to lesser offences than those originally charged and submitted that the evidence supported three new counts being added.
[17] The court committed the appellants to trial on seven counts: two joint counts; three as against the father; and two as against the mother.
[18] The appellants’ trial was scheduled for June 9, 2014. As a result of a scheduling conflict, carriage of the file was transferred to another Crown, who withdrew the charges on the first day of trial, apparently, in part, because Y.N.Y. and M.L.Y. were reluctant to testify and see their parents in court.
Child protection proceedings
[19] Meanwhile, on October 7, 2013, Curtis J. found the appellants’ four children in need of protection and made them Crown wards, without access to their parents: see Catholic Children’s Aid Society of Toronto v. A.M.Y., 2013 ONCJ 585. The appellants’ appeal to the Superior Court of Justice was dismissed: see CCAS Toronto v. AMY and PY, 2014 ONSC 6526. Their further appeal to this court was dismissed: see Catholic Children’s Aid Society of Toronto v. A.Y., 2015 ONCA 493. The Supreme Court of Canada dismissed the appellants’ application for leave to appeal on December 24, 2015: see A.Y. v. Catholic Children’s Aid Society of Toronto, [2015] S.C.C.A. No. 415.
Action against the respondents
[20] On June 8, 2016, P.Y. and A.Y. issued a Statement of Claim against the respondents, claiming damages of $2,000,000 for improper arrest, improper charges, false imprisonment, malicious prosecution, negligent investigation, obstruction of justice, defamation, breach of statutory duty, and misfeasance in public office. They also sought $1,000,000 in exemplary damages, an amount for special damages to be determined, and a further $1,000,000 for “general, aggravated and responsibility” damages.
Motion for summary judgment
[21] The respondents moved for summary judgment pursuant to r. 20 of the Rules of Civil Procedure. The motion judge granted summary judgment. In doing so he concluded the following:
- The claims against the police defendants for false arrest, false imprisonment, negligence, negligent investigation, and breaches of the Charter could not succeed because no liability flows to the TPSB or to Police Chief Blair based on the actions of individual officers and because there was no evidence of improper or negligent supervision.
- The claims against the police defendants were barred by the Limitations Act, 2002, S.O. 2002, c.24 (the “Limitations Act”) as they were outside the two-year limitation period.
- Even if the claims were not time barred, there were reasonable and probable grounds for investigating, arresting, and charging the parents.
- With respect to the claims against the Attorney General for malicious prosecution and malfeasance in public office, Crown Attorneys have immunity from being personally named in an action for damages alleging prosecutorial misconduct; in these cases, the Attorney General is the proper defendant. The motion judge dismissed the claim against Ms. Gonet personally. With respect to the Attorney General, malicious prosecution only arises where a Crown prosecutor acts outside the role of a prosecutor and objectively prosecutes without reasonable and probable grounds and for improper purposes. The motion judge found the parents’ submissions appeared more aimed at attacking the removal of their children than the Crown’s liability for malicious prosecution. He also found Crown counsel relied on the evidence in good faith, and that there was enough evidence with which to prosecute, as confirmed by the preliminary inquiry resulting in the committal to stand trial.
- The other claims the parents brought forward – including defamation, obstruction of justice, and “breach of statutory duty” – were bald assertions unsupported by the record or law.
[22] Consequently, the motion judge concluded that there were no genuine issues for trial.
Issues
[23] P.Y. and A.Y. appeal on the following grounds:
- The motion judge erred in finding summary judgment appropriate under the circumstances.
- The motion judge erred in finding the action barred by the Limitations Act.
- The motion judge erred in finding there was not malicious prosecution and obstruction of justice, and by finding reasonable and probable grounds for arrest, imprisonment, investigation, and prosecution.
- The motion judge erred in finding immunity for the Crown prosecutor on constitutional grounds.
Analysis
Appropriateness of summary judgment
[24] The appellants argue that summary judgment here amounts to lack of due process and equal protection. They say that they were not given the opportunity to fully present their case. They requested ten days for a trial. The motion was scheduled for two days. After two days, the motion judge concluded that he could fairly determine that a trial was not required.
[25] The motion judge correctly applied the test in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para 49. Summary judgment may be granted “when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” The motion judge determined that, after two days of the motion, and based on the written record, he was able to make findings of fact and apply the law. The purpose of a summary judgment motion is to determine claims expediently and justly; a full trial was not necessary to reach this result.
[26] The motion judge is afforded deference in exercising his discretion to determine that he could fairly decide by summary judgment. I see no unfairness in this process.
The limitation periods
[27] The motion judge determined that the last day on which a discoverable claim arose against the police defendants for false arrest and imprisonment was at the time of their arrest and imprisonment in November 2011. For negligence and negligent investigation, the latest date for discoverability was when the last charge was added in April 2013. The same limitation applies to the Charter issues. The claims were not started until June 2016, which was too late under the Limitations Act two-year limitation period. The motion judge made no error in this regard.
Malicious prosecution
[28] As determined by the motion judge, even if the claims were not time barred, there were reasonable and probable grounds for investigating, arresting, and charging the appellants, both objectively and subjectively as required by the malicious prosecution inquiry.
[29] There is a high standard to find malicious prosecution: see Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 40. There must be no reasonable and probable cause for the prosecution and the prosecution must be motivated by malice: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para 3. Miazga, at para. 58 sets out the principle “that the reasonable and probable cause inquiry comprises both a subjective and an objective component” such that the prosecutors must have an actual belief that is reasonable in the circumstances. The motion judge found that there was reasonable and probable cause to initiate the prosecution, and deference should be afforded to his determination. Further, Officers Dhuga and West stated in their affidavit that they believed that there were reasonable and probable grounds for arrest. This satisfies the subjective element. The evidence, including information provided by the children, confirms that there were objectively reasonable grounds to arrest P.Y. and A.Y. and lay charges against them.
[30] At any rate, the prosecution had adequate evidence to prosecute, including testimony from the children and physical evidence. There is no basis to interfere with the motion judge’s determination that the claims against the Attorney General do not require a trial. There was no evidence of the prosecutor’s malicious intent on the part of the prosecutor or undue pressure by the CCAS.
Immunity for Crown prosecutor
[31] Section 8 of the Ministry of the Attorney General Act provides that Crown prosecutors are personally immune from acts performed in their duty as a Crown attorney. Such immunity is not a constitutional violation, as the Attorney General stands in as the defendant who may be held accountable if there is an action that properly can be brought against the Crown attorney. The motion judge correctly determined that there was no genuine issue requiring trial against Crown prosecutor Ms. Gonet.
Disposition
[32] For these reasons, I would dismiss the appeal.
[33] If the respondents seek costs, I would request written submissions from the parties of no more than 3 pages to be delivered within 14 days of the release of this decision.
Released: October 28, 2021 “MLB” “M.L. Benotto J.A.” “I agree. Grant Huscroft J.A.” “I agree. Thorburn J.A.”
