CITATION: John v. Attorney General, 2016 ONSC 2529

COURT FILE NO.: CV-13-3586-00

DATE: 2016-03-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ministry of the Attorney General, Tony MacKinnon, Lorna Muller

Tom Schreiter, for the Defendants

Defendants

• and -

Darren John

Self-Represented

Plaintiff

HEARD: February 4, 2014

ENDORSEMENT

Barnes, J.

Introduction

1The Defendants bring this motion for an Order striking the Plaintiff’s Statement of Claim without leave to amend. I granted the Defendants’ motion. These are my reasons.

2The Defendant Tony MacKinnon (“Mr. MacKinnon”) is the Crown Attorney for Milton, Ontario. The Defendant Lorna Muller (“Ms. Muller”) is an Assistant Crown Attorney in Milton, Ontario.

3The Plaintiff (“Mr. John”) was convicted of Fraud under $5,000 in the Ontario Court of Justice on September 11, 2013. A charge of fail to attend court was withdrawn. Mr. John’s action against the Defendants stem from these charges.

Background Facts

4Mr. John was ordered to appear in the Ontario Court of Justice on January 31, 2013. Mr. John was charged with fraud under $5,000. A Canadian Charter of Right and Freedoms section 11(b) motion was scheduled for that day. Mr. John failed to appear in court. His counsel, Shahen Alexanian, appeared on his behalf. There was no designation on file. The motion was adjourned to February 28, 2013, for Mr. John to appear in person.

5On January 31, 2013 Justice Baldwin issued a warrant for Mr. John’s arrest. This warrant was not to be executed until February 28, 2013 and only if Mr. John did not attend court on that date.

6On February 28, 2013 Mr. John did not appear in court. His counsel Shahen Alexanian appeared. Justice Baldwin noted that Mr. John was to appear in person and issued a bench warrant for the arrest of Mr. John. Justice Baldwin ordered that upon Mr. John’s arrest he was to be brought before Justice Baldwin.

7Mr. John turned himself in to the police at the Milton courthouse on March 5, 2013. He was held for a bail hearing on a charge of failing to appear in court on January 31, 2013. On the next day Mr. John was released on consent.

8On July 30, 2013 the fail to appear charge was withdrawn. After a trial before Justice Baldwin on September 11, 2013, Mr. John was convicted of the offence of fraud over $5,000.

Issues

9The issues on this motion to strike are the following:

(i) Is Mr. John’s action statute barred by the Ministry of the Attorney General Act, R.S.O. 1990 c. M. IT, s. 8 (the Act)?

(ii) Does the Statement of Claim disclose a reasonable cause of action?

(iii) Is Mr. John’s action an abuse of process?

Position of the Parties

10Mr. John alleges that Ms. Muller told his counsel, Mr. Alexanian, that Mr. John had assaulted several police officers in the City of Brampton. Mr. John alleges that as a result of this Shahen Alexanian decided not to represent him and he had to represent himself at trial. Mr. Shahen sent a letter to the Crown confirming that Ms. Muller made comments to him about Mr. John that he found disparaging and as a result he decided not to represent Mr. John.

11Mr. John’s Statement of Claim does not identify the tort claimed against Ms. Muller. Upon reading his Statement of Claim, it appears that he alleges that Ms. Muller’s comments are defamatory.

12Mr. John alleges that Mr. MacKinnon ordered the police to lay the fail to appear charge against him even though there were no reasonable grounds to lay that charge. Mr. John alleges that Mr. MacKinnon did this even though the police had decided not to lay the fail to appear charge. Mr. John also alleges that Mr. MacKinnon instructed the Assistant Crown Attorney conducting his bail hearing to seek his detention despite the absence of reasonable and probable grounds to lay the charge.

13The Defendants argue that, as a matter of law, Mr. John’s action is barred by section 8(1) of the Act. The Defendants were acting in their professional capacities as Assistant Crown Attorney and Crown Attorney and therefore Mr. John’s action against them personally is barred by statue. Mr. John’s action is a collateral attack on a criminal conviction which is impermissible.

14The Defendants submit that Mr. John’s action discloses no reasonable cause of action because he has failed to plead any material facts in support of his allegations; the Defendants actions fall within their professional duties and are protected by Crown immunity and, in the case of Mr. Mackinnon, there were reasonable and probable grounds for laying the fail to appear charge. According to the Defendants, Mr. John’s conduct constitutes an abuse of process.

Analysis

Is Mr. John’s action against the Defendants barred by section 8(1) of the Act?

15Mr. John’s action against the Defendants is barred by section 8(1) of the Act.

16Rule 21.01(1) (a) of the Rules of Civil Procedure (“the Rules”) permits an issue of law raised by the pleadings to be considered by a Judge prior to the trial of the action. For the purpose of this analysis, the facts as pleaded by Mr. John are assumed to be true: see Portuguese Canadian Credit Union Ltd. (Liquidator of) v. CUMIS General Insurance Co., 2010 ONSC 6107, [2010] O.J. No. 4736. To be successful, the Defendants must show that it is “plain and obvious” and beyond doubt that Mr. John’s action will not succeed: see Hunt v Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, at paras. 33-37.

17Section 8(1) of the Act states:

8. (1) No action or other proceeding for damages shall be commenced by a person who is or was the subject of a prosecution, in respect of any act done or omitted to be done in the performance or purported performance of a duty or authority in relation to the prosecution, against any of the following:

9. A Crown Attorney, Deputy Crown Attorney or assistant Crown Attorney appointed under the Crown Attorneys Act.

10. A person authorized under section 6 of the Crown Attorneys Act to be a provincial prosecutor.

11. Any other employee appointed for the purposes of section 4.

12. A person who was, but no longer is, a person described in paragraph 1, 2 or 3. 2009, c. 33, Sched. 2, s. 46.

18In a letter dated March 14, 2013, Mr. Alexanian confirmed that Ms. Muller made some disparaging remarks about Mr. John that led him to remove himself as Mr. John’s counsel. These remarks were made during a meeting to discuss disclosure in Mr. John’s criminal case. The comments were about Mr. John’s conduct towards some Peel Regional Police Officers.

19Ms. Muller made these comments to Mr. Alexanian in the course of fulfilling her duty to disclose the criminal case against Mr. John. The Supreme Court of Canada’s pronouncements in R. v. Stinchombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, impose an obligation on the state to disclose to an accused its case against him or her. Ms. Muller was carrying out her duty as an Assistant Crown Attorney in providing information to Mr. John’s counsel. At its highest, Ms. Muller provided more information about Mr. John than may have been required to carry out her professional obligation. Ms. Muller’s comments constitute an act done in the performance of her duty as an Assistant Crown Attorney and, therefore, Mr. John is statute barred from bringing an action against Ms. Muller personally.

20Mr. MacKinnon’s conduct, as alleged, constitutes action taken in the performance of his duty as Crown Attorney for Halton Region and, therefore, Mr. John is statute barred from bringing an action against Mr. MacKinnon personally.

21The conduct of both Defendants was in the course of the performance of their duties and section 8 of the Act prohibits Mr. John from bringing this action against them personally. I will now consider whether Mr. John’s action discloses any reasonable cause of action.

Does the Statement of Claim disclose a reasonable cause of action?

22Mr. John’s Statement of Claim does not disclose a reasonable cause of action.

23Rule 21.01(1) (b) of the Rules permits a motion to be brought prior to trial to strike out a pleading on the ground that it discloses no reasonable cause of action. To be successful, the Defendants must demonstrate that even if the facts pleaded by Mr. John are accepted as true, Mr. John is not entitled to a legal remedy because the facts as pleaded do not reveal a reasonable cause of action.

24Mr. John’s action against Ms. Muller is in essence a defamation action. Defamation is a civil tort. A statement is defamatory where according to the standards of a “reasonable, ordinary right thinking member of the public”, it is capable of injuring the reputation of the person to whom it refers: see Color Your World Corp v Canadian Broadcasting Corp, 1998 CanLII 1983 (ON CA), [1998] O.J. No. 510, 156 D.L.R. (4th) 27 (C.A.), at para. 36, leave to appeal to S.C.C. dismissed (1998), 119 O.A.C. 397n.

25Mr. John’s action against Mr. MacKinnon is the tort of malicious prosecution. The constituent elements of this tort are (1) that the defendant commenced the criminal proceedings (2) that the criminal proceedings were resolved in favour of the plaintiff (3) that there were no reasonable and probable grounds to lay the charge or continue the prosecution; and (4) that the prosecution was is motivated by malice: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 4.

26Mr. John’s Statement of Claim does not set out the legal tests for the causes of action. Mr. John does not set out the material facts capable of proving each element of these causes of action and how the material facts relate to each defendant: see Rule 25.06(1), Philco Products, Ltd. v. Thermonics, Ltd., 1940 CanLII 43 (SCC), [1940] S.C.R. 501 at 505, Cerqueria v. Ontario, 2010 ONSC 3954, at para. 11.

27Ms. Muller and Mr. MacKinnon’s actions were in the performance of their duties. Under the Act, a Crown Attorney is immune from suit except for a claim for malicious prosecution: see Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 43, Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at paras. 45-50. The Crown’s actions are exposed to suit for malicious prosecution but not to suit for negligence in the performance of their duties: see Thompson v. Ontario, 1998 CanLII 7180 (ON CA), [1998] O.J. No. 3917 (C.A.), at para. 56.

28Mr. John’s action against Mr. MacKinnon is based on Mr. MacKinnon’s conduct in relation to the fail to appear charge. This charge was withdrawn on July 30, 2013. The action for malicious prosecution is premised on Mr. MacKinnon’s action taken in the alleged absence of reasonable and probable grounds to lay the fail to appear charge. Mr. John alleges that police would not have laid the fail to appear charge if Mr. MacKinnon had not instructed them to. Mr. John also alleges that in the absence of reasonable and probable grounds Mr. MacKinnon instructed the Assistant Crown Attorney conducting his bail hearing to seek his detention.

29The standard of “reasonable and probable grounds” is described R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at para. 17:

[T]he Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

30Mr. John was charged with fail to appear contrary to section 145(2) of the Criminal Code, R.S.C. 1985, c, C-46. (Criminal Code). The elements of the offence require proof beyond a reasonable doubt that the accused was required to attend court but failed to do so. Once these elements are proved, the accused may present a defence, on a balance of probabilities, that there is a lawful excuse for his failure to appear in court: see R. v. Hammoud, 2012 ABQB 110, at paras. 22-25.

31Section 145(9) of the Criminal Code requires the clerk of the court before which the accused failed to appear to issue a certificate indicating that he or she was required to attend court but failed to attend court on the date required. The clerk of the court issued such a certificate for Mr. John. The contents of the certificate provide the reasonable and probable grounds necessary to lay the fail to appear charge.

32Justice Baldwin issued the warrant for Mr. John’s arrest under section 524(1) of the Criminal Code. Under this section, a Justice can issue a warrant only when satisfied that there are reasonable and probable grounds to believe that the accused has failed to attend court as required. A review of Justice Baldwin’s reasons indicates that Justice Baldwin believed that there were reasonable and probable grounds for the offence. This further demonstrates the reasonable and probable grounds for the fail to appear charge. Therefore, an action for the tort of malicious prosecution against Mr. Mackinnon cannot succeed because there were reasonable and probable grounds to lay the charge of fail to appear.

33Mr. John did not plead the legal basis for his action against Ms. Muller. I have deduced that it is based on a tort for defamation which for reasons already described reveals no reasonable cause of action. Even if Mr. John were to plead that Ms. Muller’s actions constituted malicious prosecution, the factual and legal basis for which appear spurious, Ms. Muller’s action can at the highest be classified as negligent. I do not make such a finding; however, even if I did, Mr. John would have no reasonable cause of action against Ms. Muller because a suit for the tort of negligence is not available against a Crown where the impugned actions of the Crown fall within the performance of her duties: see Thompson, supra.

34For all the foregoing reasons, Mr. John’s Statement of Claim is struck without leave to amend.

35Given the conclusions I have reached, I find it unnecessary to determine whether Mr. John’s actions constituted an abuse of the Court’s process.

36Mr. John is an unrepresented litigant unaware of the Rules which govern how to prepare a proper pleading and the statutory prohibitions governing suits against Crown Attorneys and Assistant Crown Attorneys acting in the performance of their duties. I leave it to the discretion of the Attorney General to decide if they wish to seek costs.

Barnes, J.