ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-499557
DATE: 20140916
BETWEEN:
REVEREND RICHARD STEVE MITCHELL
Plaintiff
– and –
TORONTO POLICE SERVICES – CHIEF BILL BLAIR and TORONTO POLICE SERVICES BOARD CHAIR ALOK MUKHERJEE and HER MAJESTY THE QUEEN RIGHT OF ONTARIO for THE HONOURABLE JUSTICE PETER HARRIS – ATTORNEY GENERAL OF ONTARIO & PHAEDRA DOWNER – ONTARIO PROBATION AND PAROLE OFFICER THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Defendants
Reverend Richard Steve Mitchell in person
Richard Oliver, for Chief of Police William Blair and other members of the Toronto Police Service
HEARD: August 12, 2014
B. P. O’marra j.
ruling on application to strike out a statement of claim
overview
[1] On March 6, 2012 the plaintiff was arrested and charged with Assault by members of the Toronto Police Service. On December 4, 2012 he was found guilty of assault and sentenced to probation. On October 8, 2013 the plaintiff’s appeal of the assault conviction was dismissed.
[2] On March 4, 2014 the plaintiff commenced an action against various parties, including members of Toronto Police Service, the Honourable Justice Peter Harris of the Ontario Court of Justice and Her Majesty the Queen in the Right of Ontario.
[3] On April 1, 2014 the action was discontinued against all of the defendants except the Toronto Police Service and named members of that service, including Chief William Blair.
the application
[4] The police defendants seek to strike the statement of claim on the following bases:
(1) It fails to disclose a reasonable cause of action against the police defendants; and
(2) it is an abuse of the Court’s process and is scandalous, frivolous and vexatious.
the statement of claim
[5] The plaintiff asserts the following in his claim against the police defendants related to the events of March 6, 2012:
He refers to himself as the victim, and the other man involved as the culprit.
He claims he acted in self-defence against a racially motivated assault.
He claims the police who investigated the incident decided he was guilty and thus violated his Charter right to be presumed innocent.
He claims the police were negligent in failing to recover video footage of the incident.
He claims the police wrongfully had him sit in and be detained in a police cruiser while the incident was investigated.
the test for striking out a pleading
[6] A party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action.
Rule 21.01(1)(b), Rules of Civil Procedure.
[7] On such a motion the allegations set out in the statement of claim that are capable of being proved must be taken as true. The applicant must then show that it is plain and obvious that those material facts in the statement of claim disclose no reasonable cause of action.
Holland v. Ontario [2007] O.J. No. 566 (SC) at para. 8.
Hunt v. Carey Canada Inc. 1990 90 (SCC), [1990] 2 S.C.R. 959 at para. 33.
the test to stay an action
[8] A defendant may move before a judge to stay or dismiss an action on the ground it is frivolous, vexatious or otherwise an abuse of the process in the Court.
Rule 21.01(3).
[9] The abuse of process doctrine engages the inherent power of the Court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute. The doctrine is most often cited in cases where a convicted person commences a civil proceeding for the purpose of attacking a finding made in criminal proceedings against that person.
Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 35, 37 and 49.
proceedings in criminal court
[10] The plaintiff’s assertions that he was the victim and acted in self-defence against a racial attack were highly relevant issues at his criminal trial. In that process he was presumed innocent. He had no obligation to prove he acted in self-defence. It was for the Crown to negative self-defence beyond a reasonable doubt for there to be a conviction. The quality of the police investigation would be considered as to whether the Crown had proven the essential elements of the alleged assault beyond a reasonable doubt.
[11] The plaintiff was found guilty of assault by an experienced Justice of the Ontario Court. His appeal to the Superior Court by way of summary conviction appeal was dismissed. The outcome of the criminal trial process necessarily determined the following:
(1) The Crown proved beyond a reasonable doubt that the plaintiff was not acting in self-defence as defined in law.
(2) Based on all of the evidence, including the quality of the police investigation, the charge of assault was proven beyond a reasonable doubt.
[12] The basis for the police to lay a criminal charge are reasonable and probable grounds to believe an offence has occurred. This standard is well below proof beyond a reasonable doubt. Where a conviction is entered after trial there is no basis to allege that there were insufficient grounds to lay the charge.
malicious prosecution
[13] There are four necessary elements which must be proved for success in an action for malicious prosecution:
(a) the defendant initiated the proceeding
(b) the proceeding was terminated in favour of the plaintiff
(c) an absence of reasonable grounds
(d) the defendant was motivated by malice
Nelles v. Ontario 1989 77 (SCC).
[14] The criminal proceedings in this case were not terminated in favour of the plaintiff. It cannot be said that there was an absence of reasonable grounds when a Court was ultimately satisfied beyond a reasonable doubt that the plaintiff was guilty as charged.
[15] These are fatal flaws to an action based on malicious prosecution.
presumption of innocence
[16] The Charter provides that any person charged with an offence has a right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Charter, s. 11(d).
[17] The presumption of innocence relates to the ultimate burden on the Crown at trial to prove guilt beyond a reasonable doubt.
R. v. Dubois 1985 10 (SCC), [1985] 2 S.C.R. 350 at para. 10.
[18] The belief on reasonable grounds by a police officer that an offence has been committed does not engage or contravene s. 11(d) of the Charter.
[19] The claim that the reasonable grounds to arrest violated the s. 11(d) rights of the plaintiff is untenable at law and has no chance of success. This action, start to finish, is an attempt to re-litigate the criminal proceedings that were decided adverse to him. It would be an abuse of process to permit these claims to proceed any further.
result
[20] The Statement of Claim against the Toronto Police Service and the police defendants is struck in its entirety without leave to amend.
[21] I will consider brief costs submissions (no more than three pages) to be received at Judicial Administration within 14 days.
B. P. O’Marra J.
Released: September 16, 2014
COURT FILE NO.: CV-14-499557
DATE: 20140916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REVEREND RICHARD STEVE MITCHELL
Plaintiff
– and –
TORONTO POLICE SERVIES – CHIEF BILL BLAIR and TORONTO POLICE SERVICES BOARD CHAIR ALOK MUKHERJEE and HER MAJESTY THE QUEEN RIGHT OF ONTARIO for THE HONOURABLE JUSTICE PETER HARRIS – ATTORNEY GENERAL OF ONTARIO & PHAEDRA DOWNER – ONTARIO PROBATION AND PAROLE OFFICER THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Defendants
ruling on application to strike out a statement of claim
B. P. O’Marra J.
Released: September 16, 2014