COURT FILE NO.: CV-17-585477 DATE: 2019/01/08 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Norman Dunkley AND: York Regional Police Services Board, Police Chief Eric Joliffe, Officer Jim Kalonomos, Officer Andrew Owens and The Attorney General for Ontario
BEFORE: Justice Spies
COUNSEL: Peter Cho, for the Plaintiff, Responding Party Jeremy Glick, Counsel for the Defendant/Moving Party, The Attorney General for Ontario No one else appearing although duly served
HEARD: November 6, 2018
Endorsement
Overview
[1] This is a motion by the Attorney General for Ontario (“AGO”) for an order striking the plaintiff’s Amended Statement of Claim (“Claim”) and dismissing the plaintiff’s action against the AGO pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure on the basis that it discloses no reasonable cause of action.
[2] The plaintiff claims $4.5 million in damages in an action that arises out of his arrest, conviction, and subsequent appeal and acquittal for firearms-related offences. On November 29, 2012, the plaintiff’s vehicle was searched by two York Regional police officers, who discovered a handgun and a Taser. The plaintiff was subsequently charged with firearms-related offences. At trial, the plaintiff applied to have the handgun and Taser excluded under s. 24(2) of the Charter on the basis that the warrantless search of his car was unreasonable and violated s. 8 of the Charter.
[3] There is no dispute that the defence at trial was aware of the fact that the search of the plaintiff’s vehicle was conducted without a warrant. There is no allegation that the underlying facts of the search were not disclosed to the plaintiff and his counsel during before the trial. As pled, the plaintiff’s criminal counsel was able to argue at trial that the search was illegal on the basis of the same facts which the Court of Appeal relied upon in its decision.
[4] The position of the defence at trial was that the plaintiff had a reasonable expectation of privacy in his car, which he did not abandon when he fled the gas station. The Crown argued that the plaintiff had no reasonable expectation of privacy in his car and, in the alternative, that the police had the authority to conduct a search incident to an inevitable arrest or to conduct an inventory search of the abandoned vehicle under s. 221(1) of the Highway Traffic Act (“HTA”).
[5] The trial judge found that the officers had reasonable grounds to suspect that the plaintiff was casing gas stations for a robbery and to detain the plaintiff for further investigation at the time he left the gas station. He also found that when the plaintiff fled, the officers had reasonable grounds to conduct a search of the plaintiff’s car to identify who had fled the scene. The trial judge also agreed with the Crown that the police were entitled to seize the plaintiff’s apparently abandoned car under s. 221(1) of the HTA and thereafter to conduct an inventory search that would have ultimately led to the discovery of the gun and Taser. After analyzing the search under s. 24(2) of the Charter, the trial judge concluded that he would not have excluded the gun and Taser even if he had found a breach of the plaintiff's rights under s. 8 of the Charter. He dismissed the defence Charter application and ruled the evidence was admissible. The plaintiff was then convicted on all charges.
[6] The plaintiff appealed his convictions and his sentence to the Court of Appeal, which overturned the lower court’s Charter ruling and held that the evidence should have been excluded. The court found that the trial judge erred in concluding that there was a common law authority to conduct the search and also found that the search was not authorized by the HTA. After conducting a s. 24(2) Charter analysis, the court concluded that the evidence of the gun and Taser should be excluded from evidence. Because the evidence in question was essential to the Crown's case, the court entered an acquittal on all charges.
[7] As against the AGO, the plaintiff alleges wrongful non-disclosure, abuse of process, malicious prosecution, misfeasance in public office, false imprisonment and various Charter breaches. Central to all of these allegations is the assertion that the Crown who was in charge of the prosecution of this matter before the trial judge knew or ought to have known at that time that the search of the plaintiff’s vehicle was unlawful and that the evidence obtained from that search – the firearm and the Taser - was inadmissible in the trial. This is clear from the plaintiff’s factum at paras. 21-22 and para. 34.2 of the Claim, where the plaintiff alleges:
Despite knowledge of the unlawful actions of the Defendant Officers, rather than admit and/or disclose this information to the Plaintiff or his counsel, or to the Court, this Defendant maintained that the actions of the Defendant Officers were lawful. Moreover, this Defendant argued that the Plaintiff precluded himself from relying on Section 8 of the Charter and argued that the Defendant Officers had the authority to conduct a search pursuant to the Highway Traffic Act. As a result, the Plaintiff suffered harm as evidence which ought not to have been admitted at his trial was admitted and he was wrongfully convicted. [Emphasis added]
The Test
[8] Rule 21.01(1)(b) provides that a judge may strike out a pleading that discloses no reasonable cause of action. On this motion, the AGO must show that it is “plain and obvious” that the claim cannot succeed. This test will be met where: 1) the plaintiff pleads allegations that do not give rise to a recognized cause of action or 2) the plaintiff fails to plead a necessary element of a recognized cause of action; see Hunter v. Bravener et al., [2003] O.J. No 1613 (CA) at paras. 3-5, application for leave to appeal dismissed [2003] SCCA No 306.
[9] Accordingly, the issue to be determined on this motion is whether the plaintiff’s Claim as against the AGO should be stuck out in its entirety because it is plain and obvious that it fails to disclose a reasonable cause of action.
[10] On a rule 21 motion, the allegations set out in the statement of claim are taken as being true or capable of being proven unless they are patently ridiculous or incapable of proof; see Nash v. Ontario (1995), 27 O.R. (3d) 1 (CA). While evidence is usually inadmissible on such a motion, the court has developed some narrow exceptions to the restrictions on the use of evidence. The court will consider evidence on motions under rule 21.01(1)(b) where that evidence is incorporated into a statement of claim by reference. Further, where prior court proceedings are referred to in a claim, the court may consider materials from those proceedings for certain basic facts when determining whether the claim discloses a reasonable cause of action, so long as doing so does not transform the motion to strike into a motion for summary judgment; see Sheridan v. Ontario, 2014 ONSC 4970 (SCJ) at para. 9-18.
[11] Consequently, the AGO submits that both the Superior Court and the Court of Appeal’s decisions in R. v Dunkley should be entered into evidence on this motion. I agree. Both decisions are incorporated by reference into the Claim and disclose basic facts necessary for determining whether the Claim discloses a reasonable cause of action.
Analysis
[12] Simply stating the theory of the plaintiff’s case demonstrates how unreasonable it is. There is no suggestion that the Crown withheld evidence on the hearing of the Charter application. Generally speaking the Crown is entitled to rely on any legal basis of culpability available on the evidence; see R. v. Kelly, 2017 ONCA 920, [2017] O.J. No. 6203 (ON CA) at para. 32. There was nothing unusual about the arrest of the plaintiff and the search of his vehicle and the police finding a handgun and Taser. This was a case not unlike many, many cases in our courts, where the Crown prosecutes an action, defends a Charter application seeking to exclude the evidence that forms the basis of the charges, succeeds on having that application dismissed at trial and the decision is overturned on appeal thereby sparing the plaintiff from serving a sentence of ten years (less a credit for pre-sentence custody) despite real evidence having been found in his vehicle.
[13] My view is bolstered by the submissions of Mr. Cho. In support of his submission that there was improper conduct on the part of the Crown who prosecuted the plaintiff he referred to the Court of Appeal decision at paras. 37-38 where the court found that: “[i]n this case, the Crown cannot rely on this power [the power to search pursuant to an investigative detention] to justify a search for identification …” He argued that the words “cannot rely” are evidence that the Crown should not have made this argument at trial and that it was improper for the Crown to have done so. Mr. Cho also referred to para. 56 of the Court of Appeal’s decision where the court found that “the officers were negligent” and he submitted that the Crown knew that the officers were negligent. He also criticized the Crown for arguing a theory that the plaintiff had abandoned his vehicle which the Court of Appeal found, at para. 47 the trial judge making this finding was in error. These types of arguments could be made following any successful appeal by a defendant following a conviction that resulted from the dismissal of a Charter application to exclude evidence.
[14] Many of the allegations in the Claim fail to set out material facts sufficient to support the asserted causes of action and/or are simply conjecture or speculation unsupported by material facts. On that basis alone they should be struck; see Hunter v. Bravener, [2003] O.J. No. 1613 at para. 5. However, in my view, to avoid the parties incurring further expense in bringing pleadings motions, I will determine whether or not the plaintiff has a reasonable cause of action on the basis asserted as a matter of law and consider whether or not I ought to grant leave to amend the Claim.
[15] A starting point for my analysis in this case is Halik v. Toronto (City) Police Services [2017] O.J. 2123, (SCJ), where Associate Chief Justice Marrocco noted at para. 17 that “the only private law exception to prosecutorial immunity is an action for malicious prosecution. There is a public law exception in respect of an action for Charter damages based on a wrongful failure to disclose.” Wrongful non-disclosure was recognized as an exception to prosecutorial immunity in Henry v. British Columbia (Attorney General), 2015 SCC 24. The tort of malicious prosecution is well known and was recently dealt with Miazga v. Kvello Estate, 2009 SCC 51.
[16] In this case, the Plaintiff has sued not only for malicious prosecution and wrongful failure to disclose, but also abuse of process, malfeasance in public office and false imprisonment. These three claims should be struck on the basis that they do not disclose a reasonable cause of action for this reason alone.
[17] The AGO has filed an extremely helpful factum which I have drawn from heavily to provide reasons for my decision to grant the AGO’s motion.
[18] Turning to the specific claims I find as follows.
Wrongful Non-Disclosure
[19] The plaintiff claims that the Crown prosecuting him at trial is liable for wrongful non-disclosure in paras. 35 to 37 of the Claim. The basis for this claim appears to be that 1) the Crown did not disclose the unlawful nature of the search to the plaintiff, 2) the Crown “knew, or ought to have known” that his Charter rights had been infringed by the officers and intentionally withheld this information, 3) that the Crown knew or ought to have known that this information was material to the plaintiff’s defence, 4) the Crown “knew, or ought to have known, that the failure to disclose this evidence would impinge on the defendant’s ability to make full answer and defence to the charges, and 5) that the Crown “ought to have known that withholding the aforementioned information violated the Plaintiff’s Charter rights and that he would suffer harm as a result”.
[20] In the plaintiff’s factum at para. 54 it is alleged that “[a]t this stage of the proceeding, it is unclear what disclosure the Crown made to the Plaintiff regarding the manner in which his vehicle was searched”. This issue however should not be “unclear”. The plaintiff’s counsel at his criminal trial would know what was disclosed by the Crown. There is no allegation that any evidence was withheld nor did Mr. Cho suggest this was the case in his submissions.
[21] It should be noted again that the plaintiff does not allege that the Crown failed to disclose the fact that the initial portion of the search was completed before a warrant was obtained or any other fact in relation to the search. Aside from the testimony of the officers and plaintiff, the only other evidence at trial was security-video footage. There is no allegation that this was not disclosed. Indeed, the issue was argued at trial on the basis of these facts, which were in the possession of the plaintiff’s criminal counsel. Rather, the claim for wrongful non-disclosure is based only on the allegation that the Crown failed to disclose the “fact” that the evidence was “illegally obtained without a valid and lawful warrant”.
[22] The test for wrongful non-disclosure was recently stated in Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 SCR 214. In articulating the test, the court identified two major policy concerns to which wrongful non-disclosure actions give rise: 1) the possibility of Crown counsel being diverted from their important public duties by having to defend against a litany of civil claims, and 2) the possibility of a "chilling effect" on the behaviour of prosecutors. The court observed that “while the obligation to disclose is non-discretionary, there are invariably difficult judgment calls to be made,” and that “[t]hose difficult decisions should be motivated by legal principle, not the fear of incurring civil liability”. Accordingly, the Court rejected negligence and even gross negligent standards as too lax, and warned that “damages claim for prosecutorial misconduct should not be a mere exercise in artful pleading” at paras. 71, 80, 92-94.
[23] Ultimately, the court held that for a wrongful non-disclosure claim to succeed at trial, a plaintiff will have to show that 1) the prosecutor intentionally withheld information, 2) the prosecutor knew or ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impinge on his or her ability to make full answer and defence, 3) withholding the information violated his or her Charter rights, and 4) he or she suffered harm as a result; at para. 85.
[24] The court went on to note that to demonstrate that the Crown intentionally withheld information, “a claimant need only prove that prosecutors were actually in possession of the information and failed to disclose it” or that “[a]lternatively, a claimant could show that prosecutors were put on notice of the existence of the information and failed to obtain possession of it, in contravention of their disclosure obligations” at para. 86.
[25] I agree with Mr. Glick that the plaintiff’s assertion that the unconstitutionality of the search was a fact at the time disclosure was made by the Crown to the defence, misapprehends the distinction between facts and conclusions of law. As such the plaintiff has failed to fulfill the first element of the test as he confuses “information” as used in Henry with legal conclusions. The Crown is obligated to disclose information, not legal conclusions. The Crown could not have withheld the “information” that the search was unconstitutional, because the legal or illegal nature of the search is not “information”. Subject to an appeal to the Supreme Court of Canada, the Court of Appeal’s decision established a binding conclusion of law - that is the application of the applicable law to a set of facts; it did not retroactively create new facts of the case; see Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 at para. 26.
[26] The plaintiff’s position also ignores the procedural history of R. v. Dunkley. The nature of the search was the subject of submissions by both parties at trial and at the Court of Appeal, which arrived at a different legal conclusion regarding this issue based on the same facts before them. The Court of Appeal found no errors in the trial judge’s findings of fact, but rather found errors in his legal analysis. Accordingly, categorizing the nature of the search as “information” would ignore the obviously legal--not factual--nature of the court’s conclusion.
[27] I find that for these reasons, this claim must be dismissed as it fails to disclose a reasonable cause of action against the AGO.
Malicious Prosecution
[28] The plaintiff advances the tort of malicious prosecution on a similar basis to the torts of wrongful non-disclosure and abuse of process. The plaintiff claims at para. 39-40 of the Claim that the Crown 1) “intentionally initiated and continued the prosecution with the Defendant Officers even thought there was a lack of reasonable and probable cause”, 2) that the Crown knew that the plaintiff would not be convicted if the handgun and Taser were excluded; 3) the Crown “knew that the handgun and Taser were obtained illegally” and yet “still prosecuted the Plaintiff, relying on this evidence at his trial, and 4) that the Crown advocated for the inclusion of this evidence at trial and did not inform the court that the handgun and Taser were illegally obtained by the defendant officers. The plaintiff asserts that “[t]he Crown’s actions amount to malice and/or an improper purpose which is inconsistent with its role as a minister of justice”.
[29] The pleadings do not disclose what this alleged improper purpose was. The only thing that can be inferred is that the alleged improper purpose was that the Crown sought to obtain a conviction knowing that the evidence relied upon was illegally obtained. However, as I have already stated, the Crown would not have known that until the Court of Appeal made that ruling.
[30] To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: 1) initiated by the defendant, 2) terminated in favour of the plaintiff, 3) undertaken without reasonable and probable cause, and 4) motivated by malice or a primary purpose other than that of carrying the law into effect; see Miazga, supra at para. 3.
[31] The third element will be made out where the plaintiff can show an absence of reasonable and probable cause to commence or continue a criminal prosecution from an objective standpoint, on the basis of the circumstances known to the prosecutor at the relevant time, see Miazga, supra at para. 75-77.
[32] Malice requires a plaintiff to prove that the prosecutor willfully perverted or abused the office of the AGO or the process of criminal justice. 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. Even if the plaintiff succeeds in proving that a prosecutor did not have a subjective belief in the existence of reasonable and probable cause, this does not suffice to prove malice as the prosecutor’s failure to fulfill her proper role may be the result of inexperience, incompetence, negligence or even gross negligence, none of which is actionable; see Miazga, supra at paras. 89.
[33] I note that in the original claim, the plaintiff asserted a claim for negligence against the Crown in what was para. 49. In what is now para. 50, the references to negligence have been deleted but the various particulars of the claim remain. They essentially repeat the other allegations relied upon in support of the remaining causes of action asserted against the Crown.
[34] The court has repeatedly held that in order to withstand a rule 21.01 motion, a claim for malicious prosecution must be more than a bald claim of malice; there must be circumstances, particulars or facts from which a trier of fact will be able to infer or find malice. The alleged wrongdoer must be able to understand what is alleged against him or her with some precision, and be placed in a position that allows a response; see Wilson v. Toronto Police Service, [2001] O.J. No. 2434 at para. 67; Pispidikis v. Ontario (Justice of the Peace), 62 O.R. (3d) 596 at paras. 35-36; and Brummell v. Ontario (Attorney General) 2014 ONSC 486 at paras. 37, 40.
[35] In the Claim at para. 38, the plaintiff also alleges that the prosecution was commenced and conducted “even though there was a lack of reasonable and probable cause”. To support this argument, the plaintiff asserts that the Crown knew that the plaintiff would not be convicted without the evidence of the handgun and Taser, and knew that this evidence was obtained illegally, yet still relied on this evidence.
[36] For reasons already stated, the Crown could not have known, from an objective standpoint, that the handgun and Taser were inadmissible, because this was not a fact in existence at the relevant time, but a legal conclusion drawn over two years after the trial. In fact, the trial judge initially ruled the evidence admissible. Accordingly, the third element of the tort is not made out.
[37] The fourth element of the tort, malice, is also not made out. The plaintiff’s allegations of malice relate again to the Crown’s position at trial that the handgun and Taser were admissible. For the reasons already expressed above, this argument has no merit. The legal conclusion by the Court of Appeal is not a “fact” the Crown should have known at the time of trial, nor is the Crown’s legal position that the handgun and Taser were admissible in any way improper. All of the plaintiff’s allegations of malice which flow from these two premises should be dismissed.
[38] The plaintiff also alleges in para. 41 that the Crown knew that the plaintiff had a previous criminal record and used it against him in the proceedings. That previous record was a relevant fact at trial, particularly with respect to the basis upon which the police initially formed reasonable and probable grounds. Having run the plates of his vehicle, the police discovered the plaintiff was on parole for armed robbery. The charges he faced at trial, particularly the charges under s. 117.01(1) of the Criminal Code, presupposed a previous criminal record in that the Crown would need to prove that as a result of a previous conviction the plaintiff had been ordered not to have a weapon in his possession. In any event, the plaintiff’s pleading in this regard is completely bald and does not amount to malice. These allegations ought also to be struck.
[39] In summary, none of the plaintiff’s allegations support the inference that the prosecution was initiated and continued without reasonable and probable cause, or for any purpose other than the purpose of bringing the law into effect. The plaintiff has therefore failed to make out two elements of the tort of malicious prosecution and has failed to plead particulars with respect to the malice allegation as required by rule 25.06 (8).
[40] For these reasons, I find that this claim should be struck on the basis that it does not disclose a reasonable cause of action against the AGO.
Abuse of Process
[41] In light of Halik the plaintiff cannot assert a claim of abuse of process against the AGO. Mr. Cho however submitted that he could plead abuse of process. The only case he referred to in support of this position was McNabb v. Ontario (Attorney General), [2000] O.J. No. 3248 (SCJ) which he argued was a case with similar facts to the case at bar. I disagree. In that case the court found (at para. 10) that the plaintiff’s claim did not appear to be based solely on assumption or speculation. In any event the issue of whether or not a claim for abuse of process could be brought against the Crown was not argued.
[42] Mr. Cho also referred to Albanese v. Franklin et al., 2016 ONSC 6479 where Whitten J. heard a trial where the claims included a claim of false arrest and false imprisonment. In that case however it was only the police officers and the police service who employed them who were sued; the AGO was not a defendant.
[43] In my view even if the plaintiff could assert a claim for abuse of process, as that claim is pleaded, it is similarly without merit and ought to be dismissed. The plaintiff’s allegation in this regard is also grounded on the theory that it was somehow improper for the Crown to argue that the search of the plaintiff’s vehicle was lawful, when it should have known that the evidence was obtained illegally and that the specific Crown had previously prosecuted the plaintiff for other offences.
[44] The specific allegations are found in para. 38 of the Claim and include that that the Crown 1) resisted the plaintiff’s motion to exclude the evidence, 2) failed in its duty to act “in a good faith basis” in respect to this evidence, 3) “acted with malice in order to secure a conviction against the Plaintiff with knowledge of his criminal background prior convictions”, and 3) “exhibited bias in its request to participate in the prosecution of the Plaintiff due to its past interactions with him.”
[45] For a claim for abuse of process to succeed, a plaintiff must show that 1) the plaintiff is a party to a legal process initiated by the defendant, 2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective, 3) the defendant took or made a definite act or threat in furtherance of the improper purpose, and 4) some measure of special damage has resulted; see Harris v GlaxoSmithKline Inc., 2010 ONSC 2326 at para. 48. The standard for the second branch of the test is applied strictly. Malice, or the existence of a vindictive motive, is insufficient to satisfy this criterion; see Hawley v Bapoo, 76 O.R. (3d) 649 at para. 89.
[46] The plaintiff has failed to plead two of the necessary elements of abuse of process, namely, that the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective as required by case law and by rule 25.06(8), and that there was an overt act or threat in furtherance of that purpose.
[47] In my view the plaintiff’s allegations relating to the fact that the Crown argued that the search was lawful are clearly without merit. The Crown is allowed to advance a legal theory rooted in the evidence, even if the plaintiff disagrees with that theory or a court ultimately rejects that legal theory. The plaintiff’s allegation that the Crown knew that it was not “factually accurate” that the search was lawful is again premised on a misunderstanding of the difference between a legal conclusion and a fact. The plaintiff’s theory in this regard must be rejected for the reasons noted above. Furthermore, as there is nothing else grounding the allegation that it was improper to argue that the search was lawful, this allegation ought to be struck; Kelly, supra at paras. 30-32; R. v. Elliott at para. 131.
[48] The plaintiff’s remaining allegations with respect to the tort of abuse of process are bald. Accepting as true for the purpose of this motion that the Crown requested to be on this case, the elements of abuse of process are not met. There is no allegation of a collateral purpose or a threat or act for that purpose. These allegations ought also to be struck.
Claim for Misfeasance in Public Office
[49] The plaintiff also claims damages for misfeasance in public office allegedly perpetrated by the Crown in para. 43 to 44 of the Claim. I could dismiss that claim in reliance on Halik. In any event, in my view this claim should be dismissed for the same reasons I have already given with respect to the other claims. These allegations again relate to the fact that the Crown improperly argued at trial that the handgun and Taser were admissible in evidence.
[50] Misfeasance in public office will be made out where 1) a public officer has engaged in deliberate and unlawful conduct in his or her capacity as a public officer; and 2) the public officer was aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. The tort will be made out if the plaintiff can show that the officer acted for the express purpose of harming the plaintiff; Odhavji Estate v. Woodhouse, 2003 SCC 69 at paras. 22-28.
[51] In Odhavji, the court was careful to observe that knowledge of harm is insufficient to fulfill the criteria of the tort:
In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office; at para. 28
[52] Again, just as in the case of the other tort claims already dealt with, the plaintiff’s Claim fails to properly make out the tort of misfeasance. The Crown did not “allow” the evidence, but advanced a legal theory. I find that this claim should be struck on the basis that it does not disclose a reasonable cause of action.
False Imprisonment
[53] The plaintiff claims damages for false imprisonment as against the AGO in paras. 45-49. I could dismiss that claim in reliance on Halik. In any event, I find that this claim too fails to disclose a reasonable cause of action and should be struck. Mr. Cho pointed out that in Leadbeater v. Ontario Justice Nordheimer, as he then was, dismissed a similar motion by the AGO where the claim included a claim for wrongful imprisonment. In that case however, the issue of whether or not there was such a claim in law was not argued.
[54] The allegations are that the Crown 1) continued the prosecution of the plaintiff “[s]ubsequent to the unlawful search of the Plaintiff’s vehicle and subsequent unlawful seizure of contents in the vehicle”, 2) that the Crown “knew or ought to have known, that there was no reasonable or probable cause for the search of the Plaintiff’s vehicle” and that “the Plaintiff’s vehicle was illegally searched and the handgun and Ruger were unlawfully obtained”, and that 3) despite this alleged knowledge, the Crown “allowed the Plaintiff to remain in pre-trial custody”, 4) that the Crown “knew or ought to have known, that the conviction and subsequent imprisonment was based on inadmissible evidence obtained unlawfully and would have resulted in the false imprisonment of the Plaintiff”, and that 5) the Crown “knew or willfully ignored, the inconsistent evidence and the allegations made against the Plaintiff regarding the ownership of the firearms, in order to secure a conviction which resulted in his false imprisonment”.
[55] To prove false imprisonment, the plaintiff must prove that he was detained and that the detention was caused by the Crown, and that the detention was against his will. The onus then shifts onto the defendant to establish that the detention was lawful; see Albanese v. Franklin, 2016 ONSC 6479 at paras. 112-117.
[56] The Crown responsible for a prosecution of a defendant does not cause that defendant to be detained. It is the court that continues pre-trial custody and not the Crown. As such, this allegation is incapable of proof and is struck on the basis that it discloses no reasonable cause of action.
Claim for Charter Breaches
[57] At para. 51 of the Claim, the plaintiff pleads that his wrongful conviction and the resultant false imprisonment constituted a violation of s. 7 of the Charter. Since these claims are based on the alleged false imprisonment claim that I have found is not reasonable cause of action against the AGO, this claim must be struck as against the AGO.
[58] The plaintiff also claims in para. 51 of the Claim a breach of s. 8 of the Charter because his car was arbitrarily searched without reasonable or probable cause. This is a claim against the police officers as there is no allegation that the AGO/Crown authorized the search.
[59] Finally, also in para. 51 of the Claim, the plaintiff claims that the negligent conduct of the defendants or willful disregard of the plaintiff’s rights breached his constitutional right to fundamental justice and to make full answer and defence contrary to s. 7 of the Charter and his right to a fair trial under s. 11(d) of the Charter. This allegation appears to be based on the alleged failure of the Crown to disclose that the search of the plaintiff’s vehicle was unlawful which I have already found does not disclose a reasonable cause of action against the AGO. As a result, this claim, as against the AGO must be struck.
[60] For all of these reasons, I agree with the submissions of the AGO. The plaintiff’s Claim fails to disclose any reasonable cause of action against the AGO and at the very least should be struck out. The finding by the Court of Appeal that the search was unlawful is a legal conclusion, not a fact which could have been disclosed. The plaintiff, in misapprehending this distinction, advances a series of claims without any foundation. Similarly, the plaintiff’s arguments that the Crown should not have argued for the admission of the evidence, completely misapprehends the role of the Crown and is without merit. The Crown is allowed to advance a legal theory rooted in the evidence, even if the plaintiff disagrees with that theory or a court ultimately rejects that legal theory.
Should Leave to Amend the Claim be Granted?
[61] I must now consider whether or not to give the plaintiff leave to amend his Claim, given my finding that the plaintiff’s Claim fails to plead the necessary elements of an otherwise recognized cause of action. The plaintiff’s Claim has already been amended once. Mr. Cho argued that I should grant leave to amend if I struck any parts of the Claim. He submitted that the AGO had not made a demand for particulars.
[62] The Supreme Court of Canada stated in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 19 and 21 that the purpose of a motion to strike is to eliminate hopeless claims, and that “is a tool that must be used with care”. I appreciate that this is not a motion for summary judgment.
[63] Although I accept the plaintiff could amend his claim again and make bald allegations that meet the test for each of the causes of action set out herein, now that his counsel has been educated as to what is required as a matter of law, which would not further the plaintiff’s action. The fundamentals of this case would not change. The AGO would ask for particulars, the plaintiff would have none and the parties would be back before this Court.
[64] Essentially the plaintiff’s position is that the Crown ought not to have argued that the plaintiff abandoned his vehicle, that the search of his vehicle by the officers was legal, and that the evidence that was found in his vehicle was admissible under s. 24(2) of the Charter. Apart from pointing to a couple of passages from the decision of the Court of Appeal, which in my view do not suggest anything untoward, counsel Mr. Cho had no particulars to provide in support of the plaintiff’s claim, apart from the fact that the Court of Appeal ruled in the plaintiff’s favour. The only particular fact that is alleged in support of all of the allegations apart from the fact that the Crown should have known that the search of the plaintiff’s vehicle was illegal is that the Crown in question asked to prosecute this case because of her prior dealings with this plaintiff in other criminal proceedings. Without more this is not a fact that if pleaded would support any of the asserted claims. I was also advised during the course of oral submissions by Mr. Cho that the plaintiff had one or more conversations with the trial Crown, before the Plaintiff was represented by counsel, and that he formed the view that this Crown was “out to get him”. When I asked about this however, Mr. Cho was not aware of the specifics of any of those conversations. Given that this is what I would expect someone to think when being prosecuted for a serious crime; I am not surprised that the plaintiff’s counsel has no further information to offer to the Court.
[65] Mr. Cho also relied on Leadbeater, supra. where Justice Nordheimer dismissed a similar motion by the AGO. In that case however, the plaintiff alleged an intentional failure to disclose information that was known to the Crown and would have established that there was no reasonable and probable cause for the charges. Nordheimer J. found, at para. 12, that if these allegations could be established at a trial then it would be open to a trial judge to conclude that there was malice present in the court of the prosecution of the plaintiff. That is not this case. Finally reference was made by to Magiskan v. Thunder Bay (City) Police Services Board, 2011 ONSC 7334 but in that case the defendants did not include the AGO as a defendant.
[66] For the reasons I have given it is plain and obvious that this action against the AGO will not succeed. The plaintiff is clearly on a fishing expedition. This case against the AGO is really premised on a hope that if the Crown were examined for discovery, that some improper purpose would come to light. However, as observed by Drambot J. in Wilson, supra at para. 67, it is no longer sufficient to make serious bald allegations of malice; of intentional wrongdoing on the part of a Crown prosecutor in a statement of claim. I would add that the same is true of the other claims asserted in this Claim. Claims of malicious prosecution and willful non-disclosure essentially assert that a Crown prosecutor has perverted or abused her office and the process of criminal justice. As Dambrot J. stated: “[t]here is little that one could imagine that would be a more serious allegation against Crown counsel in his or her professional life. It is entirely appropriate, in my view, that more be required of a plaintiff than a bald allegation of malice” or in my view willful non-disclosure or any other claim alleging intentional wrongdoing.
Conclusion
[67] For all of the reasons set out above, I order that the plaintiff’s claim against the AGO is struck, without leave to amend, with costs of the motion and the action on a partial indemnity basis.
[68] With respect to costs, I received Costs Outlines from both parties. The costs claimed by the AGO on a partial indemnity basis total $6,075. The costs of the plaintiff on the same basis are virtually the same and total $5,808.
[69] I have reviewed Mr. Glick’s Costs Outline and the time spent and hourly rate is reasonable. Accordingly I order that the plaintiff pay costs in the amount of $6,075 to the AGO within 30 days of the release of this Endorsement.