COURT FILE NO.: 356/06

DATE: 20061031

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: David Coulter, Plaintiff

-and-

Toronto Police Services Board, Julian Fantino, Michael Davis, Steven Bell, and Beverley Richards, Defendants

HEARD: October 16, 2006

BEFORE: Lane, J.

COUNSEL: Heather Mackay and Amy Leamen, for the Defendant Beverley Richards, Moving party;

Sean Dewart, for the Plaintiff, responding.

E N D O R S E M E N T

LANE J.:

[1] This is a motion for leave to appeal from the order of C. Campbell J. refusing to grant summary judgment dismissing this action against the moving defendant, Ms. Richards.

Background

[2] On February 4, 2001, the plaintiff and his brother Charles attended a “rave” at a restaurant in Toronto with their friend Jeffrey Tuck. During the rave, which was very crowded, an altercation occurred and the plaintiff was seen by witness Darryl Olsen fighting with one Salim Jabaji, who stumbled out of the crowd fatally wounded by two stab wounds. The plaintiff was charged with murder a few days afterwards and later Mr. Tuck was also charged.

[3] Justice Horkins of the Ontario Court committed the plaintiff and Tuck for trial on February 14, 2003. Each was committed as either the principal or a party to the stabbing. The judge stated that the essential evidence that sealed the present plaintiff’s committal was certain eye witness evidence from witness Olsen placing the plaintiff delivering body blows to the deceased seconds before the deceased collapsed in a pool of blood.

[4] The charges were withdrawn by the assistant Crown Attorney with carriage of the case, the defendant Richards, on December 17, 2003. Her evidence is that she did so after she learned of new evidence indicating that the co-accused Jeffrey Tuck and not the plaintiff stabbed Mr. Jabaji. Mr. Tuck was later tried for the murder.

The action

[5] The plaintiff’s action is for malicious prosecution. The plaintiff contends that Ms. Richards prosecuted the case without reasonable and probable grounds and with malice or with an improper purpose and therefore claims for malicious prosecution. The defendant asserts the existence of reasonable and probable grounds until certain evidence was discovered and that there is no evidence of malice or improper purpose. She moved for summary judgment dismissing the plaintiff’s claim. On July 12, 2006, C. Campbell J. dismissed her motion.

Analysis

[6] In his reasons, the motion judge found that until at least the end of June 2001, there existed reasonable and probable grounds for the prosecution of the plaintiff, but there were disputed issues of fact going to the issue of the reasonableness of continuing the prosecution following the “surfacing of the audiotapes and the forensic DNA report”. The reference to audiotapes is to recordings made in February and March, 2001 by the brother of the plaintiff, of certain telephone conversations with Tuck in which Tuck confessed to being the one who stabbed Mr. Jabaji. The brother gave these recordings to Mr. John Rosen, his counsel, who kept them for a time and then turned them over to the police in July 2001. They were mentioned at two pre-trials in June and July 2001, but evidently were not transcribed by the police for some months, until they were mentioned in a bail hearing in December 2001. The reference to DNA reports is to DNA tests of blood found at the scene. Initial tests reported the blood of the deceased and an unknown male. Subsequent tests showed that the unknown male was not the plaintiff, and later, in August 2001, that the unknown male was Mr. Tuck.

[7] One of the errors attributed to the motion judge is that he accepted an affidavit of the plaintiff (“the Coulter affidavit”) setting out his version of events on the night of the murder. It was submitted that it was illogical to use this evidence to assess the defendant’s conduct in concluding that there were reasonable and probable grounds for laying the charge against the plaintiff, when the plaintiff made no statement and did not testify at the preliminary inquiry. His information was not available to the Crown. I agree entirely that the use of that evidence for that purpose would be illogical. However, the motion judge found that there were reasonable and probable grounds at least until the surfacing of the two pieces of evidence referred to above, so the plaintiff’s affidavit did not have any effect upon that finding. Whether the surfacing of the audiotapes and the forensic DNA report deprived the Crown of any basis for continuing the prosecution is a question of fact which is disputed and requires a trial to resolve.

[8] It was also submitted that the motion judge was in error in stating that:

It was the Crown’s position that it was not until an additional witness was discovered who could positively identify Tuck that it was reasonable to exclude the plaintiff from being at least a party to the murder if not the actor.

[9] The motion judge was in slight error in this statement. It was in fact the Crown’s position that it was the evidence of one Yang, who did not “identify” Tuck, but who came forward to state that Tuck had confessed to him that he was the sole stabber of Jabaji, which persuaded the Crown to drop the charges against the plaintiff. Nevertheless, despite this error, the motion judge appreciated the Crown’s position that the arrival of this witness was the important fact which meant that the prosecution of the plaintiff, even as a party, could not succeed. The Crown’s position was that the DNA evidence and the Tuck audiotapes did not show that the plaintiff could not be convicted. There was doubt about the audiotapes because they were made by the accused’s brother; and the DNA implicated Tuck but did not show the plaintiff was not a party to the crime.

[10] In the Coulter affidavit, there is much argument, thinly disguised as information received from his counsel, to the effect that the Crown’s case against the plaintiff as a party could never hold water. In my view this affidavit is not evidence, but argument. In addition the Crown observed that the evidence so attacked was enough to obtain a committal for trial. Again I observe that the motion judge did not use this evidence/argument to find that the Crown acted without reasonable and probable grounds in bringing the charges. On the contrary, he found reasonable and probable grounds until the new evidence surfaced. The question requiring a trial is whether it remained reasonable to pursue the plaintiff after that evidence surfaced. There is certainly conflicting evidence on that subject and on the implications of the Yang statement.

[11] The moving party argues that leave should be given because the motion judge should not have admitted the Coulter affidavit; it was insufficient as an answer to the summary judgment motion. They cite Charemski v. Ontario[^1], where an affidavit on information and belief challenged the cogency of the police analysis of the evidence. Killeen J. characterized it as a “disguised argumentative attack” and found its contents to be of no value in advancing the claim for malicious prosecution being made by the plaintiff. In a brief endorsement, the Court of Appeal agreed with Killeen J. However, neither Killeen J. nor the Court of Appeal laid down any rule of law as to such affidavits. They simply assessed it as any other evidence and found it wanting. I do not think that the fact that the motion judge allowed the Coulter affidavit to be filed places him in conflict with Charemski such that there is a conflict of principle involved.

[12] The moving defendant also attacked the motion judge’s handling of the committal for trial issue. It was submitted that the motion judge misread Scott v Ontario[^2] when he referred to it as a ‘formidable obstacle’ to a plaintiff whereas he should have recognized that a committal for trial precluded any reliance on implied malice. As there was no direct evidence of malice on the part of the moving defendant and the committal for trial precluded any implied malice, the case must fail. In my view, the moving defendant overstates the finding in Scott. The full analysis of Cameron J’s reasons shows that he recognized that, as the Court of Appeal said in Oniel v Toronto (Metropolitan) Police[^3]:

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.

[13] In reaching his conclusion as to malice where there has been a committal for trial, Cameron J. extrapolated from cases on reasonable and probable grounds and also relied heavily on McGillivary[^4] which was not a malicious prosecution case, but a section 7 Charter case, where no malice was alleged.

[14] The plaintiff here submitted that in any event, Cameron J. did not rely on the principle asserted by the moving defendant. He relied upon the whole of the evidence before him as appears from paragraph 84 of his reasons:

The allegation of implied malice may be negated by the finding of reasonable and probable cause in light of the committal for trial: McGillivary. Even if Temilini is also applicable to the issue of malice and the committal would not be conclusive, the substantial weight of the committal order combined with a reasonable argument on admissibility of the statement, the absence of any complaint of any other conduct by the Crown and the review of the Matanovic report and the evidence by the office of the Crown Attorney convinces me that there was no abuse of the Crown’s discretionary power in this case.

[15] When the Court of Appeal said in its brief reasons that it agreed with Cameron J’s analysis of malice, it seems to me that the whole of that analysis must be regarded as what is agreed with, as set out in paragraph 84, where it is clear that he took much more into account than the passage relied on by the moving defendant.

Conclusion

[16] It appears to me that the motion judge in this present case also took into account all the evidence before him in reaching his conclusion that there was evidence upon which the trier of fact could conclude in favour of the plaintiff. In doing so, he did not create a decision in conflict in principle with other decisions such that leave to appeal should be granted. Nor do I find that there is good reason to doubt the correctness of the decision. There were some errors as to fact, but in my view they do not undermine the essential point: this is not a case for summary judgment for the reasons of the motion judge. There are too many factual loose ends as to what occurred and why in the handling of the emerging evidence.

[17] Finally, in the absence of conflict of principle, there is no point in the case of importance or public interest beyond the interests of the parties themselves to meet the second branch of each of the alternative tests under Rule 62.02.

[18] The motion for leave to appeal is dismissed with costs. If it cannot be agreed, the amount of the costs may be the subject of brief written submissions within fifteen days, on the understanding that further costs may be awarded if an unreasonable position is taken.

Lane, J.

DATE: October 31, 2006

[^1]: [2000] O.J. No.5231 (SCJ); affirmed [2002] O.J. No 239 (CA). [^2]: [2002] OJ No 4111 (SCJ); aff’d [2003] OJ No. 4407 (CA). [^3]: 2001 ONCA 24091, [2001] OJ No. 90 (CA) , para. 47 [^4]: (1994) 1994 NBCA 4465, 116 DLR (4th) 104 (NB CA)