G.C. v. Attorney General of Ontario
[Indexed as: C. (G.) v. Ontario (Attorney General)]
Ontario Reports
Ontario Superior Court of Justice,
Perell J.
January 20, 2014
119 O.R. (3d) 321 | 2014 ONSC 455
Case Summary
Torts — Malicious prosecution — Plaintiff acquitted of manslaughter at judge-alone trial — Criminal trial judge finding that Crown's failure to give reasons for attempting to override plaintiff's election of trial by judge alone amounted to abuse of process — Trial judge acquitting plaintiff on basis that Crown's entire case hinged on inferences to be [page322] drawn from plaintiff's behaviour (captured on video) that was unconnected to shooting — Plaintiff suing Attorney General of Ontario for damages for malicious prosecution — Statement of claim struck and action dismissed for failure to plead reasonable cause of action — Overriding plaintiff's election a non-core element of prosecutorial discretion and within the ambit of public law and abuse of process but outside private law and tort of malicious prosecution — Plaintiff failing to plead material facts to establish that prosecution was undertaken or continued without reasonable cause or that defendant was motivated by malice.
The plaintiff, who was at that time a young person, was charged with manslaughter. He elected to be tried by a judge alone. Pursuant to s. 67(6) of the Youth Criminal Justice Act, S.C. 2002, c. 1, the Attorney General decided to override the plaintiff's election and have him tried by a judge and jury. No reasons were given for that decision. The criminal trial judge refused to change the mode of trial to a jury trial, holding that the Crown's refusal to provide reasons amounted to an abuse of process. The criminal trial judge admitted videotape evidence that was excluded at the separate jury trials of other accused arising out of the same shooting. The plaintiff was acquitted. The criminal trial judge found that the Crown's entire case against the plaintiff hinged on inferences to be drawn from his conduct, captured on the videotapes, which was unconnected to the shooting, and that those inferences could not be logically drawn. The plaintiff subsequently sued the Attorney General for damages for malicious prosecution. The defendant moved to strike the statement of claim and dismiss the action for failure to plead a reasonable cause of action.
Held, the motion should be granted.
The plaintiff failed to plead material facts to establish that the prosecution was undertaken or continued without reasonable cause or that the defendant was motivated by malice. A prosecutor's decision to override a young person's choice of a judge-alone trial is an exercise of non-core prosecutorial discretion because it is tactical in nature. Malicious prosecution is not about the prosecutor's tactics or the non-core elements of prosecutorial discretion, and accordingly falls outside the private law remedy of malicious prosecution. There was nothing in the criminal trial judge's reasons for acquittal which suggested that the Attorney General was continuing a prosecution knowing that he had no reasonable prospect of conviction. Her conclusion that all the evidence ultimately did not persuade her that the plaintiff was connected to the shooting did not entail the inference that the Attorney General had a purpose other than carrying the law into effect.
Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65, 217 D.L.R. (4th) 513, 293 N.R. 201, [2003] 1 W.W.R. 193, J.E. 2002-1884, 7 Alta. L.R. (4th) 1, 312 A.R. 275, 43 Admin. L.R. (3d) 167, 168 C.C.C. (3d) 97, 4 C.R. (6th) 255, 117 A.C.W.S. (3d) 166, 54 W.C.B. (2d) 603; McCreight v. Canada (Attorney General) (2013), 116 O.R. (3d) 429, [2013] O.J. No. 3263, 2013 ONCA 483, 287 C.R.R. (2d) 272, 308 O.A.C. 128, 4 C.C.L.T. (4th) 44, 230 A.C.W.S. (3d) 389, varg [2012] O.J. No. 1996, 2012 ONSC 1983 (S.C.J.); Miazga v. Kvello Estate, [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51, 2009 SCC 51, 313 D.L.R. (4th) 330, 395 N.R. 115, [2010] 1 W.W.R. 45, J.E. 2009-2041, 337 Sask. R. 260, 69 C.C.L.T. (3d) 1, EYB 2009-165741; Nelles v. Ontario, [1989 77 (SCC)], [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, 60 D.L.R. (4th) 609, 98 N.R. 321, J.E. 89-1206, 35 O.A.C. 161, 41 Admin. L.R. 1, 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358, 42 C.R.R. 1, 16 A.C.W.S. (3d) 318; R. v. C. (G.), [2010] O.J. No. 21, 2010 ONSC 115, 258 C.C.C. (3d) 550, 204 C.R.R. (2d) 99 (S.C.J.); [page323] R. v. R. (J.S.) (2012), 112 O.R. (3d) 81, [2012] O.J. No. 4063, 2012 ONCA 568, 265 C.R.R. (2d) 122, 295 O.A.C. 315, 291 C.C.C. (3d) 394, consd
Other cases referred to
Canada v. Operation Dismantle Inc., [1985 74 (SCC)], [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22, 18 D.L.R. (4th) 481, 59 N.R. 1, J.E. 85-495, 12 Admin. L.R. 16, 13 C.R.R. 287, 31 A.C.W.S. (2d) 45; Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980 21 (SCC)], [1980] 2 S.C.R. 735, [1980] S.C.J. No. 99, 115 D.L.R. (3d) 1, 33 N.R. 304, 5 A.C.W.S. (2d) 255; Dawson v. Rexcraft Storage and Warehouse Inc., [1998 4831 (ON CA)], [1998] O.J. No. 3240, 164 D.L.R. (4th) 257, 111 O.A.C. 201, 26 C.P.C. (4th) 1, 20 R.P.R. (3d) 207, 81 A.C.W.S. (3d) 783 (C.A.); Folland v. Ontario (2003), [2003 52139 (ON CA)], 64 O.R. (3d) 89, [2003] O.J. No. 1048 (C.A.); Hunt v. Carey Canada Inc., [1990 90 (SCC)], [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, J.E. 90-1436, 49 B.C.L.R. (2d) 273, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105, 23 A.C.W.S. (3d) 101; Johnson v. Adamson (1981), [1981 1667 (ON CA)], 34 O.R. (2d) 236, [1981] O.J. No. 3122, 128 D.L.R. (3d) 470, 18 C.C.L.T. 282, 11 A.C.W.S. (2d) 280 (C.A.) [Leave to appeal to S.C.C. refused (1982), 35 O.R. (2d) 64n, [1982] 1 S.C.R. v, [1982] S.C.C.A. No. 277, 41 N.R. 447n]; Nash v. Ontario (1995), [1995 2934 (ON CA)], 27 O.R. (3d) 1, [1995] O.J. No. 4043, 59 A.C.W.S. (3d) 1083 (C.A.); Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, [2001] S.C.J. No. 65, 2001 SCC 66, 206 D.L.R. (4th) 1, 276 N.R. 201, J.E. 2001-1975, 159 C.C.C. (3d) 225, 7 C.C.L.T. (3d) 157, 46 C.R. (5th) 1, 108 A.C.W.S. (3d) 927; R. v. C. (G.), [2010] O.J. No. 151, 2010 ONSC 178 (S.C.J.); R. v. De Zen, [2010] O.J. No. 601, 251 C.C.C. (3d) 547, 2010 ONSC 974 (S.C.J.); R. v. Jewitt, [1985 47 (SCC)], [1985] 2 S.C.R. 128, [1985] S.C.J. No. 53, 20 D.L.R. (4th) 651, 61 N.R. 159, [1985] 6 W.W.R. 127, J.E. 85-916, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193, 15 W.C.B. 2, EYB 1985-150130; R. v. Nixon, [2011] 2 S.C.R. 566, [2011] S.C.J. No. 34, 2011 SCC 34, 237 C.R.R. (2d) 333, 417 N.R. 274, [2011] 7 W.W.R. 429, 2011EXP-2036, 41 Alta. L.R. (5th) 221, J.E. 2011-1113, 502 A.R. 18, 271 C.C.C. (3d) 36, 335 D.L.R. (4th) 565, 85 C.R. (6th) 1, 13 M.V.R. (6th) 1, EYB 2011-192222, 95 W.C.B. (2d) 754; R. v. Power, [1994 126 (SCC)], [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 165 N.R. 241, J.E. 94-649, 117 Nfld. & P.E.I.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161; Temilini v. Ontario Provincial Police (Commissioner) (1990), [1990 7000 (ON CA)], 73 O.R. (2d) 664, [1990] O.J. No. 860, 38 O.A.C. 270, 21 A.C.W.S. (3d) 348 (C.A.); Wilson v. Toronto (Metropolitan) Police Service, [2002 4770 (ON CA)], [2002] O.J. No. 383, 156 O.A.C. 374, 111 A.C.W.S. (3d) 643 (C.A.), affg [2001] O.J. No. 2434, [2001] O.T.C. 483, 106 A.C.W.S. (3d) 173 (S.C.J.)
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 9
Criminal Code, R.S.C. 1985, c. C-46, ss. 21(2), 568 [as am.]
Youth Criminal Justice Act, S.C. 2002, c. 1 [as am.], s. 67 [as am.], (6)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (a), (b)
MOTION for an order striking the statement of claim and dismissing the action.
Kim Ferreira, for plaintiff.
William Manuel and Abel Fok, for defendant. [page324]
PERELL J.: —
A. Introduction
[1] On Boxing Day, December 26, 2005, two groups of men started shooting at each other on the sidewalk on Yonge Street in Toronto. Three of the combatants were shot. Two innocent bystanders were injured, and innocent 15-year-old Jane Creba was killed.
[2] Four years later on January 12, 2010, G.C. was acquitted of the charge of manslaughter in the death of Ms. Creba.
[3] In this civil action, alleging prosecutorial misconduct, G.C. sues the Attorney General of Ontario for malicious prosecution. For the purposes of this civil action, the defendant Attorney General may be taken as synonymous with the Attorney General, the Deputy Attorney General and the several Crown prosecutors who directed the prosecution of G.C.
[4] Pursuant to rule 21.01(1)(a) and 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Attorney General moves to have G.C.'s amended statement of claim struck out without leave to amend and for a dismissal of G.C.'s action for failure to plead a reasonable cause of action.
[5] For the reasons that follow, I grant the Attorney General's motion.
B. Factual and Procedural Background
[6] On December 26, 2005, Boxing Day, Jane Creba was shot and killed while standing outside of a shoe store on Yonge Street in Toronto.
[7] The Boxing Day shooting attracted widespread media attention and public outcry, and had an impact on political discourse in respect of gun violence and gang activity in the City of Toronto. In the wake of the shooting, there was pressure on the Attorney General to find, prosecute and convict those responsible.
[8] There was a police investigation, and criminal charges were laid against nine accused, two of whom were youths. The Crown's theory was that the nine accused had come downtown ready for a gunfight. Three adult accused and one youth, J.S.R., who were known to have or to have used a gun, were charged with second degree murder or attempted murder. G.C. and four adults were charged with manslaughter based on the Crown's theory that contrary to s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46, they had engaged in a common unlawful purpose to intimidate and rob a man of a gold chain.
[9] On June 13, 2006, G.C. was charged with manslaughter in connection with Ms. Creba's death. [page325]
[10] There were three separate trials of those accused with respect to the Boxing Day shooting.
[11] Seven adults were tried at a jury trial at which Justice Pardu was the trial judge. After she refused to admit video surveillance evidence before the shooting of the conduct of the accused men at the Eaton Centre on Yonge Street because the prejudicial impact of the evidence would far outweigh its probative value, Justice Pardu granted the Crown's request that acquittals be entered for the four adults charged with manslaughter. Without the video evidence, the Crown conceded that there was no reasonable prospect of their conviction.
[12] The trial continued against the three remaining adult accused. One accused pled guilty to second degree murder, and two accused were convicted of manslaughter but acquitted of the murder charge.
[13] J.S.R., who was a young person as defined by the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "Act"), elected to be tried by judge alone. However, the Deputy Attorney General directed, pursuant to s. 67(6) of the Act, that J.S.R. be tried before a judge and jury.
[14] At the trial of J.S.R., Justice Nordheimer was the trial judge. He did not admit the video surveillance evidence. Nevertheless, J.S.R. was convicted of second degree murder. I foreshadow here to say that J.S.R.'s unsuccessful appeal to the Court of Appeal, reported as R. v. R. (J.S.) (2012), 112 O.R. (3d) 81, [2012] O.J. No. 4063, 2012 ONCA 568, will have a role to play in the legal analysis later in this judgment.
[15] In August 2007, there was a preliminary inquiry in G.C.'s prosecution, and on October 24, 2007, he was committed to stand trial for manslaughter.
[16] G.C., who is a "young person" as defined by the Youth Criminal Justice Act, elected to be tried by a judge alone. However, pursuant to s. 67(6) of the Act, the Attorney General decided to have G.C.'s election of a judge-alone trial overridden and that he be tried by a judge and jury.
[17] In written submissions, G.C. had urged the Attorney General not to make this decision to override G.C.'s choice of a judge alone trial in light of the underlying purpose of s. 67(6) of the Act and the special protections for young persons under the legislation. G.C.'s defence counsel pointed out the risks of a jury trial in light of the extreme pre-trial publicity surrounding the Boxing Day shooting and the fact that a large part of the Crown's case against G.C. consisted of evidence of bad character.
[18] Defence counsel asked for the reasons for the Attorney General's decision to override the judge-alone trial, but none [page326] were ever provided. On August 13, 2009, the Deputy Attorney General issued a "Direction" which simply stated that he required G.C. to be tried by a court composed of a judge and jury. No reference was made to the written submissions made by defence counsel.
[19] Notwithstanding the Attorney General's Direction, there was no jury trial. The trial judge was Justice Molloy, and on G.C.'s abuse of process motion, she refused to change the mode of trial to a jury trial. Justice Molloy concluded that the Crown's refusal to provide reasons for its decision to override G.C. choice was an abuse of process. In her reasons for her ruling, reported as R. v. C. (G.), [2010] O.J. No. 21, 2010 ONSC 115 (S.C.J.), which are pleaded as part of the amended statement of claim, she stated [at paras. 43 and 62-66]:
Having concluded that the process of decision-making in this case was procedurally unfair, the next consideration is whether this amounts to an abuse of process, and if so, what remedy is appropriate.
In my view, principles of fundamental justice are directly raised in this case. Further, I consider that in the circumstances of this case, the denial of procedural fairness surrounding the decision to insist on a jury trial, would offend an informed person's sense of fair play and decency.
It is difficult to fathom why the Crown is so insistent on a jury trial in this case. The accused's election was made at a very early stage, when there could be no issue of "judge shopping". Given the nature of the anticipated evidence in the trial, the obvious danger of it being misused by a jury and the Crown's own stated concern about trial fairness in light of the extensive media coverage of the events, a reasonable person might expect that a Crown interested only in a fair trial for the young person accused would be relieved to learn that the young person had elected trial by judge alone. Clearly that would expedite the trial, simplify many of these issues, and remove many, if not all, of the concerns about trial fairness. The question then is why the Crown's reaction is so diametrically opposed to this seemingly sensible and fair proposal that the extreme step was taken of requesting the Attorney General to override the election and require a jury trial. Further, when the decision was challenged and the Crown and the Deputy Attorney General were asked to explain the basis for the request and the decision, they refused, the only reason given for the refusal is that they are not required to justify their position.
In these circumstances, I come to the same conclusion as reached by Charron J., (as she then was) in McGregor, namely, that an informed person viewing the matter realistically and practically would conclude that the Crown was seeking a favourable jury, not an impartial one. I am further of the view that Charter considerations are engaged. I come to that conclusion not because I believe G.C. could not obtain a fair trial before a jury, but rather because the manner in which the decision was made breached his rights under the YCJA, breached principles of procedural fairness, natural justice and fundamental justice and therefore engaged Charter values. In my opinion, the actions of the Crown and the Deputy Attorney General were oppressive and an abuse of process. [page327]
This is not the kind of decision-making that encourages respect for authority or for the rules and norms of our society.
I can see no basis for concluding that the decision to insist on a jury in this case is consistent with the principles and objectives underlying the YCJA. On the contrary, in light of all the surrounding circumstances, I conclude that the decision was made, not only in violation of procedural fairness and principles of fundamental justice, but for improper reasons. As such, this is the kind of oppressive behaviour that falls within the doctrine of abuse of process and is subject to the scrutiny by this court.
[20] Pausing here, it will be important to note for the discussion below that Justice Molloy concluded that the Attorney General's conduct was an abuse of process because his failure to provide reasons for his decision was a denial of procedural fairness and the decision was inconsistent with the principles and objectives underlying the Youth Criminal Justice Act. Although she said that there was no evidence that an impartial jury could not be selected, she also concluded that an informed person viewing the matter realistically and practically would conclude that the Crown was seeking a favourable jury, not an impartial one.
[21] In his amended statement of claim, G.C. pleads that the abuse of process motion reveals that the Crown's case was based on unreliable or prejudicial forms of evidence.
[22] In the event, G.C. was tried without a jury. At the trial, Justice Malloy admitted the video surveillance evidence.
[23] On January 12, 2010, Justice Malloy acquitted G.C. See R. v. C. (G.), [2010] O.J. No. 151, 2010 ONSC 178 (S.C.J.). In her reasons for decision, which are included, in part, in the amended statement of claim, she stated [at paras. 52-55]:
The evidence simply does not support the inference suggested by the Crown.
One can certainly conclude from G.C.'s conduct at the Eaton Centre that he is a person of less than admirable character, or at least he was at that time. He also chose to hang out with people who were likewise of poor character. Those are the only logical inference that can be drawn. It is simply not possible to logically conclude from this that he was part of a common unlawful plan to intimidate or threaten the man with the gold chain at the Foot Locker. He was simply standing around outside the Foot Locker with his companions. His purpose is unknown and cannot be inferred based on what he was doing earlier, in an entirely different context, at the Eaton Centre, even if it were clear what his involvement was at in those two incidents at the Eaton Centre, which it is not.
In the trial of a number of adult accused also charged with offences relating to the shooting of Jane Creba, Pardu J., excluded the evidence of these incidents at the Eaton Centre on the basis that their prejudicial impact far outweighed their probative value. I did not reach the same [page328] conclusion, largely because in the absence of a jury the prejudicial impact was less of an issue. However, having now heard all of the evidence and the submissions of the parties, I echo the observations of Pardu J., that the Crown's argument with respect to this evidence is an attempt to "shore up equivocal evidence with other equivocal evidence".
A person cannot be guilty of manslaughter merely because he was present when his companions committed murder. He must have some actual connection to the wrongdoing. In this case, the Crown's entire case against G.C. hinges on the inferences to be drawn from his conduct at the Eaton Centre. There is no other evidence against him. A person cannot be convicted of manslaughter simply because he has previously acted badly, or even criminally. The inference alleged by the Crown simply cannot be logically drawn.
[24] The Crown appealed G.C.'s acquittal, but on November 2011, the Crown abandoned the appeal.
[25] In March 2012, G.C. sued the Attorney General for malicious prosecution, misfeasance of public office, intentional interference with economic relations, intentional infliction of nervous shock, and breach of his s. 9 Canadian Charter of Rights and Freedoms rights.
[26] Meanwhile, J.S.R. had appealed his conviction to the Court of Appeal, and on September 4, 2012, the Court of Appeal dismissed his appeal. See R. v. R. (J.S.), supra. As discussed further below, in this factually related case, the Court of Appeal (Justices Feldman, Armstrong and Himel (ad hoc)) disagreed with Justice Malloy's analysis of a Crown's decision to invoke s. 67 of the Youth Criminal Justice Act as an abuse of process. This matter was before the Court of Appeal because Justice Nordheimer had allowed the Attorney General to override J.S.R.'s choice of a judge-alone trial and this decision was raised as a ground of appeal.
[27] Returning to the civil action, in May 2013, the Attorney General brought a motion to strike G.C.'s statement of claim.
[28] On July 22, 2013, G.C. delivered an amended statement of claim that abandoned all causes of action except for malicious prosecution. He pleaded new particulars of his action for malicious prosecution.
[29] In his amended statement of claim, in support of his claim of malicious prosecution, G.C. pleads that Attorney General knew, or ought to have known, that the theory of liability in respect of its ease against G.C. was tenuous and unprecedented. G.C. pleads that the case was based entirely on prejudicial evidence and propensity reasoning, and there was no other evidence against G.C. He pleads that there was no reasonable and probable cause for instituting the criminal proceedings and that the Attorney General acted with malice and with the primary [page329] purpose of securing a conviction and not to carry the law into effect. As noted above, he relies on Justice Molloy's decision about the Attorney General's unsuccessful Direction about the mode of trial as demonstrating an abuse of process.
C. Discussion and Analysis
1. The constituent elements of the tort of malicious prosecution
[30] The issue to be decided on this motion is whether G.C. has pleaded a tenable action for malicious prosecution.
[31] Before the Supreme Court of Canada's decision in Nelles v. Ontario, [1989 77 (SCC)], [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, Crown attorneys and the Attorney General enjoyed absolute immunity from civil liability for any acts done in respect of a prosecution. The court in Nelles recognized, however, the intentional tort of malicious prosecution as an exception to the Attorney General's and Crown attorneys' absolute immunity from civil liability for acts done in respect of a prosecution.
[32] The tort of malicious prosecution is a remedy for the misuse of the Crown's prosecutorial discretionary authority, which like judicial independence and the independence of the bar is regarded as fundamental to the rule of law and the administration of justice and a constitutionally protected value. In Miazga v. Kvello Estate, [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51, 2009 SCC 51, at para. 46, Justice Charron speaking for the Supreme Court of Canada stated:
The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressures from government and sets the Crown's exercise of prosecutorial discretion beyond the reach of judicial review, subject only to the doctrine of abuse of process.
[33] The tort of malicious prosecution focuses on the core elements of prosecutorial discretion that concern decisions on whether a prosecution for a particular offence should be started, continued or stopped. An allegation of malicious prosecution against a Crown attorney constitutes an after-the-fact attack on the propriety of the prosecutor's core discretionary decision to initiate or continue criminal proceedings against the plaintiff: Miazga v. Kvello Estate, supra, at para. 45.
[34] In Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65 and again in Miazga v. Kvello Estate, supra, and R. v. Nixon, [2011] 2 S.C.R. 566, [2011] S.C.J. No. 34, 2011 SCC 34, at para. 21, the Supreme Court of Canada [page330] described the core elements of prosecutorial discretion. It is the core-elements of prosecutorial discretion that are not immune from the tort of malicious prosecution. In Krieger, the Supreme Court described the core elements, at paras. 43 and 46-47, as follows:
"Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.
Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), [1975 1357 (NB CA)], 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), [1989 4780 (SK CA)], 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.
[35] For the purposes of understanding the law applicable to the case at bar, it is important to emphasize that the tort of malicious prosecution is not about the prosecutor's tactical decisions or his or her conduct in the course of a prosecution. Malicious prosecution is not about the non-core elements of prosecutorial discretion. The tort is not concerned about the prosecutor's decisions that go to his or her tactics or conduct before the court: Miazga v. Kvello Estate, supra, at paras. 45-46.
[36] The core elements of prosecutorial discretion are not immunized from the tort of malicious prosecution. In order to succeed in a claim for malicious prosecution, a plaintiff must plead and prove the four constituent elements of the tort; namely, (1) the defendant initiated the prosecution; (2) the prosecution ended favourably for the plaintiff; (3) the prosecution was undertaken or continued without reasonable cause, which is a question of law; and (4) the defendant was motivated by malice or a primary purpose other than that of carrying the law into effect: Miazga v. Kvello Estate, supra, at para. 3; Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, [2001] S.C.J. No. 65, 2001 SCC 66; Nelles v. Ontario, supra.
[37] For the plaintiff to satisfy the first element, the defendant must have been instrumental in setting the prosecution in motion or in continuing the prosecution of the criminal charges: Miazga v. Kvello Estate, supra, at para. 53. [page331]
[38] For the plaintiff to satisfy the second element, the prosecution must have terminated in the plaintiffs favour. This requirement may be satisfied in a variety of ways including acquittal, a discharge at a preliminary hearing, a withdrawal, a stay, and sometimes by a settlement or a plea bargain: Miazga v. Kvello Estate, supra, at para. 54.
[39] For the plaintiff to satisfy the third element, the plaintiff must prove that there was an absence of reasonable and probable cause for the prosecution. This is an objective standard and a matter of law.
[40] Reasonable and probable cause concerns a prosecutor's professional, not personal or subjective, opinion on the merits of the case in question. For there to be reasonable and probable cause for a prosecution, there must exist sufficient evidence, which assuming it to be true, could reasonably lead any ordinarily prudent and cautious man, placed in the position of the prosecutor to conclude that the plaintiff was guilty of the crime. The reasonableness of a prosecution is a matter of the prosecutor's professional assessment of the legal strength of the case and whether, based on the existing evidence, proof beyond a reasonable doubt could be made out in a court of law: Miazga v. Kvello Estate, supra, at paras. 58-77; Proulx v. Quebec (Attorney General), supra, at para. 31.
[41] Recalling that the tort of malicious prosecution is an intentional tort, for the plaintiff to satisfy the fourth element, which considers a defendant prosecutor's mental state, as a matter of fact, the plaintiff must have evidence that the prosecutor was pursuing an improper purpose Miazga v. Kvello Estate, supra, at paras. 78-89.
[42] In Nelles v. Ontario, supra, at pp. 193-94 S.C.R., Justice Lamer explained the meaning of improper purpose as follows:
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". 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.
[43] That a prosecutor did not subjectively believe that there was reasonable and probable grounds for commencing or continuing a prosecution, while relevant to proving malice, is not sufficient to prove malice because the prosecutor's failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence or even gross negligence, none of which is [page332] actionable: Welles v. Ontario, supra, at p. 199 S.C.R.; Proulx v. Quebec (Attorney General), supra, at para. 35.
[44] The constituent element of proving malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice for ends that are improper and inconsistent with the prosecutorial function: Miazga v. Kvello Estate, supra, at paras. 80-81. As noted by Justice Dambrot in Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434, [2001] O.T.C. 483 (S.C.J.), at para. 60, affd [2002 4770 (ON CA)], [2002] O.J. No. 383, 156 O.A.C. 374 (C.A.), the requirement that the prosecutor perpetrated a fraud on the process of criminal justice and perverted or abused his or her office and the process of criminal justice is no easy threshold for a plaintiff to meet.
[45] In Miazga v. Kvello Estate, supra, at para. 89, Justice Charron summarized the fourth constituent element of malicious prosecution as follows:
In summary, the malice element of the test for malicious prosecution will be made out when a court is satisfied on a balance of probabilities, that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a "minister of justice". The plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the office of the Attorney General. While the absence of a subjective belief in reasonable and probable cause is relevant to the malice inquiry, it does not dispense with the requirement of proof of an improper purpose.
[46] In McCreight v. Canada (Attorney General) (2013), 116 O.R. (3d) 429, [2013] O.J. No. 3263, 2013 ONCA 483, varg [2012] O.J. No. 1996, 2012 ONSC 1983 (S.C.J.), Canada Revenue Agency investigated whether corporate taxpayers were fraudulently claiming research and development tax credits. The agency, for the purpose of retaining documents that had been seized pursuant to search warrants, laid criminal charges against Mr. McCreight, a chartered accountant and tax advisor. The charges were subsequently withdrawn, and Mr. McCreight sued the Attorney General of Canada for, among other things, malicious prosecution. He alleged that the Attorney General had authorized the prosecution so that Canada Revenue Agency could keep the seized documents.
[47] In a judgment affirmed on this point by the Court of Appeal, Justice Patterson struck out the plea of malicious prosecution without leave to amend. Justice Pepall, who wrote the judgment for the Court of Appeal agreed that the malice element of the tort had not been pleaded. She stated, at paras. 44-45: [page333]
In my view, the pleading does not identify a collateral or improper purpose that motivated the respondents. Retention of the appellants' seized documents was in furtherance of the prosecution, not collateral to it. Although the charges may have been laid in order to retain the documents, those documents were sought to be kept to pursue a prosecution of ITA and Criminal Code offences. Even read generously, a claim of mishandling a prosecution does not amount to a plea of malice.
Secondly, rule 25.06(8) provides that where malice is alleged, the pleading shall contain full particulars. Here, the motion judge correctly concluded that the pleading contained merely bald allegations.
2. The relationship between the tort of malicious prosecution and the doctrine of abuse of process
[48] In the case at bar, because of Justice Molloy's ruling in the criminal proceedings that the Attorney General's decision pursuant to s. 67(6) of the Youth Criminal Justice Act to override G.C.'s choice of a judge alone was an abuse of process, it is necessary to consider the relationship between the private law tort of malicious prosecution and the public law doctrine of abuse of process.
[49] The discussion here may begin by noting that as a matter of private law, malicious prosecution regulates prosecutorial discretion, but as a matter of public law, prosecutorial discretion is also regulated by the criminal law doctrine of abuse of process. In Miazga v. Kvello Estate, supra, at para. 51, Justice Charron explained:
Thus, the public law doctrine of abuse of process and the tort of malicious prosecution may be seen as two sides of the same coin: both provide remedies when a Crown prosecutor's actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non-intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact.
[50] Like the private law remedy of malicious prosecution, the public law doctrine of abuse of process has stringent and rigorous standards and is rarely available. In R. v. Jewitt, [1985 47 (SCC)], [1985] 2 S.C.R. 128, [1985] S.C.J. No. 53, the Supreme Court of Canada stated that the availability of the doctrine of abuse of process to stay proceedings as a result of abuse of process was limited to the clearest of cases.
[51] By way of comparison and contrast, the doctrine of abuse of process provides the court with a broader focus of judicial review than the tort of malicious prosecution because the doctrine of abuse of process encompasses (a) not only the propriety of commencing and continuing the criminal proceedings, but also (b) the propriety of the prosecutor's conduct and the propriety of [page334] his or tactical decisions made in the course of a prosecution, which is not an aspect of malicious prosecution. In other words, the public law doctrine of abuse of process encompasses the core prosecutorial discretion, which is the sole focus of malicious prosecution, but also the non-core aspects of prosecutorial discretion, which is outside the ambit of the tort and private law remedy of malicious prosecution.
[52] In R. v. R. (J.S.), supra, which, as noted above, is the appeal of the conviction of the other young person charged with respect to the Boxing Day shooting, Justice Feldman, writing for the Court of Appeal, explained, at paras. 118-27, that core decisions and non-core decisions are both subject to the doctrine of abuse of process, with the difference that the standard of judicial review is somewhat less deferential to the Crown for non-core decisions. At para. 121, she stated:
"[N]on-core" decisions made by the Crown in the course of a prosecution are matters of "tactics or conduct before the court" and are governed by the inherent jurisdiction of the court to control its own process. However, such decisions by the Crown can also only be challenged as an abuse of process. The difference is that the standard is somewhat less deferential to the Crown and does not require demonstrating flagrant impropriety in order to seek and obtain a remedy.
[53] At para. 123 of her judgment, Justice Feldman described non-core decisions as "not subject to the very stringent deferential standard when considering whether there was an abuse of process in making the decision".
[54] In R. v. Power, [1994 126 (SCC)], [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, at pp. 615-16 S.C.R., Justice L'Heureux-Dubé, for a majority of this court, described the high threshold that must be met under the doctrine of abuse of process to justify judicial interference with a Crown attorney's decision to prosecute an accused (a core element of prosecutorial discretion). She stated:
I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.
To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice . . . . Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare. [page335]
[55] In applying the doctrine of abuse of process, it is thus necessary to differentiate between core and non-core prosecutorial discretion because non-core prosecutorial discretionary decisions have a somewhat less stringent standard than core decisions.
[56] In R. v. De Zen, [2010] O.J. No. 601, 2010 ONSC 974 (S.C.J.), which was approved of by the Court of Appeal in R. v. R. (J.S.), supra, at paras. 122-27, the Crown's decision to require a jury trial pursuant to s. 568 of the Criminal Code was classified as a non-core decision.
[57] In R. v. R. (J.S.), the Court of Appeal held that the decision by the Attorney General under s. 67(6) of the Youth Criminal Justice Act to override a young person's decision to be tried by a judge alone and to require the trial to be by judge and jury is also not a core element of prosecutorial discretion.
[58] Before moving on to apply the law about malicious prosecution to the circumstances of the case at bar, it needs to be noted that in R. v. R. (J.S.), having decided that the Attorney General's decision to override J.S.R.'s choice of a judge alone trial was a non-core decision, the Court of Appeal went on to consider whether Justice Nordheimer had erred in not concluding that the Attorney General's decision was an abuse of process because of the Attorney General's failure to provide reasons for his decision, Justice Feldman concluded that there was no abuse of process, and referring to Justice Molloy's decision to the contrary, Justice Feldman stated, at paras. 131 and 134:
I agree with Molloy J. that s. 67(6) of the YCJA must be read in the context of s. 3 to ensure that young people are treated fairly, and their right to participate in the trial process is respected. However in my view, the Act does not require the court to read in full administrative law procedural rights in order to achieve fair treatment in the context of s. 67(6), or to avoid a finding of abuse of process based on procedural unfairness. Such an interpretation of the YCJA would be inconsistent with the broad scope traditionally afforded to prosecutorial discretion: see Krieger at paras. 32 and 48, and Nixon at para. 20. Nor is it necessary to ensure trial fairness.
In my view the decision of the Deputy Attorney General in this case not to provide reasons for the decision under s. 67(6) did not amount to an abuse of process by procedural unfairness or a breach of s. 7 of the Charter. However, if the circumstances of such a decision were to raise the concern of the court and suggest abuse, then the failure to provide reasons could be a factor in the reviewing court's decision whether an abuse of process had occurred, requiring a Charter remedy.
[59] For present purposes, the major points to note from the above discussion about the doctrine of abuse of process are (1) that a prosecutor's decision to override a young person's [page336] choice of a judge-alone trial is a non-core prosecutorial discretionary decision, which means that it is outside the private law remedy of malicious prosecution but within the public law remedy of abuse of process; and (2) the public law remedy of abuse of process does not require the court to read in full administrative law procedural rights with respect to a decision to override a young person's choice of the mode of trial.
3. Should the amended statement of claim for malicious prosecution be struck as legally untenable?
[60] Where a defendant submits that the plaintiff's pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious and beyond doubt that the plaintiff cannot succeed in the claim: Hunt v. Carey Canada Inc., [1990 90 (SCC)], [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93; Dawson v. Rexcraft Storage and Warehouse Inc., [1998 4831 (ON CA)], [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (C.A.).
[61] In assessing the cause of action or the defence, no evidence is admissible and the court accepts the pleaded allegations of fact as proven, unless they are patently ridiculous or incapable of proof: Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980 21 (SCC)], [1980] 2 S.C.R. 735, [1980] S.C.J. No. 99; Canada v. Operation Dismantle Inc., [1985 74 (SCC)], [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22; Nash v. Ontario (1995), [1995 2934 (ON CA)], 27 O.R. (3d) 1, [1995] O.J. No. 4043 (C.A.); Folland v. Ontario (2003), [2003 52139 (ON CA)], 64 O.R. (3d) 89, [2003] O.J. No. 1048 (C.A.).
[62] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff: Johnson v. Adamson (1981), [1981 1667 (ON CA)], 34 O.R. (2d) 236, [1981] O.J. No. 3122 (C.A.), leave to appeal to S.C.C. refused (1982), 35 O.R. (2d) 64n, [1982] 1 S.C.R. v, [1982] S.C.C.A. No. 277.
[63] Matters of law that are not fully settled should not be disposed of on a motion to strike: Dawson v. Rexcraft Storage and Warehouse Inc., supra, and the court's power to strike a claim is exercised only in the clearest cases: Temilini v. Ontario Provincial Police (Commissioner) (1990), [1990 7000 (ON CA)], 73 O.R. (2d) 664, [1990] O.J. No. 860 (C.A.).
[64] Generally speaking, the case law imposes a very low standard for the demonstration of a cause of action, which is to say that, conversely, it is very difficult for a defendant to show that it is plain, obvious and beyond doubt that the plaintiff cannot succeed with the claim.
[65] In the case at bar, the Attorney General submits that it is plain and obvious that G.C. does not have a tenable claim for malicious prosecution. The Attorney General does not dispute [page337] that the first two constituent elements have been demonstrated and focuses his attack on the third and fourth constituent elements.
[66] The Attorney General submits that G.C.'s claim for malicious prosecution is legally untenable because it is plain and obvious that the amended statement of claim cannot succeed and there is no amendment that could save G.C.'s claim because the material facts pleaded do not establish that (a) the prosecution was undertaken or continued without reasonable cause; and (b) the Attorney General was motivated by malice or a primary purpose other than that of carrying the law into effect. Therefore, the Attorney General submits that G.C.'s pleading should be stuck out without leave to amend and G.C.'s action should be dismissed.
[67] The Attorney General's argument is that the facts pleaded by G.C. do not amount to a pleading that Attorney General did not have reasonable and probable cause to continue this prosecution, nor do they amount to a pleading that the Attorney General was actuated by malice, and, therefore, it is plain and obvious that a claim for malicious prosecution cannot be made out. I agree with the Attorney General's arguments.
[68] With respect to the constituent element of malice or a primary purpose other than carrying the law into effect, there is no material fact pleaded that there was animus, spite, hatred or bigotry against G.C. There is, thus, no material facts pleaded in support of a plea of actual malice or a purpose outside the prosecution of G.C. for his alleged criminal wrongdoing.
[69] Still dealing with the plea of malice, in support of the plea that the Attorney General had a purpose other than that of carrying the law into effect, G.C. makes the argument that the Attorney General knew, or ought to have known that the theory of liability in respect of its case against G.C. was tenuous and unprecedented and that the case was based entirely on prejudicial evidence and propensity reasoning, and there was no other evidence against G.C.
[70] However, an argument is not a material fact, and upon analysis, C.G.'s argument comes down to the circumstances that the case against G.C. was based in part on video surveillance evidence that in the parallel cases (which it is to be recalled were jury trials), judges had refused to admit because the prejudicial effect of the evidence outweighed its probative value. But, it does not logically follow from the facts that if prosecutors had been denied the use of the video surveillance evidence at the jury trials and for those charged with manslaughter, the Attorney General had discontinued the prosecution, then it was [page338] unreasonable for the Attorney General to continue a trial where the video surveillance evidence was admitted.
[71] And in any event, G.C.'s pleading does not identify a collateral purpose that motivated the Attorney General outside of his core prosecutorial discretion. The use of evidence is in furtherance of the prosecution not collateral to it.
[72] Turning to the plea of no reasonable cause to continue the prosecution, it does not logically follow from the inability to use the surveillance evidence in the jury trials that the Attorney General had no reasonable prospect of conviction at a trial where the surveillance evidence was admitted but ultimately ruled unpersuasive by the judge sitting without a jury. There is nothing in what Justice Molloy says that suggests that the Attorney General was continuing a prosecution knowing that he had no reasonable prospect of conviction.
[73] Justice Molloy, as a judge sitting without a jury, admitted the video surveillance evidence, because as an experienced trier of fact she was able to instruct herself about the proper use to be made of the evidence. As pleaded in the amended statement of claim, she concluded that the surveillance evidence was an attempt to shore up equivocal evidence with other equivocal evidence and that all the evidence of what G.C. was doing at the Eaton Centre failed to connect him to the subsequent wrongdoing on Yonge Street. However, the pleaded fact that Justice Molloy admitted the evidence suggests that the evidence had some probative value and she notes that there was other evidence albeit unequivocal evidence.
[74] Justice Molloy's conclusion that all the evidence ultimately did not persuade her that G.C. was connected to the wrongdoing on Yonge Street does not entail the inference that the Attorney General had a purpose other than carrying the law into effect, and it does not entail that it was not reasonable for the Attorney General to continue the prosecution. The purpose of the evidence was to use it to put into effect the criminal law against those connected to the wrongdoing that occurred across the street from the Eaton Centre. As a matter of evidence, the Attorney General failed to connect G.C. to the crime, but that failure as such does not establish an absence of a reasonable prospect of conviction and it does not show a purpose outside of the prosecution of the case.
[75] G.C.'s plea of malicious prosecution is built mainly on the allegation that the Attorney General's decision to override G.C.'s choice of judge alone trial was an abuse of process. Apart from the fact that this decision was unsuccessful, it was an exercise of a non-core element of prosecutorial discretion that while within [page339] the ambit of the public law is outside the ambit of the private law tort of malicious prosecution. Moreover, given the Court of Appeal's decision in R. v. R. (J.S.), supra, the Attorney General's failure to give reasons by itself did not make the decision to override G.C.'s choice of trial an abuse of process.
[76] G.C. responded to the Attorney General's motion to dismiss with the amended statement of claim. He has had the opportunity to address the deficiencies in the pleading of malicious prosecution and come forward with his best case. In argument, there was no suggestion of G.C. having another way to plead the constituent elements of the tort.
[77] In the circumstances of this case, no purpose would be served by granting leave to further amend the pleading.
D. Conclusion
[78] For the above reasons, I grant the Attorney General's motion.
[79] If the parties cannot agree about costs, they may make submissions in writing, beginning with the Attorney General's submissions within 20 days of the release of these reasons for decision followed by G.C.'s submissions within a further 20 days.
Motion granted.
End of Document