COURT FILE NO.: C-4728-16

DATE: 2019-09-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tanner Currie Plaintiff

-and-

Greater Sudbury Police Services Board, Christopher Labreche, The Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and John Valtonen Defendants

Counsel: Trent Falldien, for the Plaintiff/Responding Party Brent Kettles, for the Defendants/Moving Parties The Attorney General of Ontario and Her Majesty the Queen in Right of Ontario

HEARD: August 26, 2019

REASONS ON MOTION TO STRIKE

A.D. KURKE J.

[1] The defendants The Attorney General of Ontario and Her Majesty the Queen in Right of Ontario (the "Crown") (collectively, the "Crown defendants") move to strike the plaintiff's statement of claim without leave to amend and to dismiss the action as against them, pursuant to Rules 21 and 25 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194.

The general test on a motion to strike

[2] Rules 21.01(3) and 25.11 of the Rules permit a court to stay or dismiss an action that is "frivolous or vexatious or is otherwise an abuse of the process of the court". The remedy is available only in the clearest of cases, where it is plain and obvious that the claim cannot proceed: Baradaran v. Alexanian, 2016 ONCA 533, at paras. 15-16. A common example of the frivolous, the vexatious or the abusive is an attempt to relitigate a matter that has already been determined by a court of competent jurisdiction: Salasel v. Cuthbertson, 2015 ONCA 115, at para. 8.

[3] A claim that discloses no reasonable cause of action must also be struck, pursuant to Rule 21.01(1)(b). On such a motion pursuant to this rule, the court must accept the facts as pleaded in the statement of claim as proven unless they are patently ridiculous or incapable of proof: Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.). The test to be applied is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at para. 33.

Background of facts and other proceedings

[4] On June 18, 2014, the plaintiff was arrested for public intoxication and resisting arrest by officers of the Greater Sudbury Police Service ("GSPS"), including defendant Christopher Labreche (Labreche). The plaintiff claims that Labreche beat him at the time of his arrest and at the GSPS headquarters threw him against a window, shattering it. He alleges that another officer ordered a friend of the plaintiff not to record police interactions with the plaintiff, or else the recording device would be smashed and/or seized as evidence.

[5] On December 5, 2014, the plaintiff swore a private criminal information against defendant Labreche. At a pre-enquête that was held to determine whether process should issue, Crown Attorney Molly Flanagan attended and cross-examined the plaintiff and another witness and made submissions to the court about a defence available to Labreche. After the pre-enquête, the presiding Justice of the Peace issued a summons for Labreche on a charge of assaulting the plaintiff. The Crown shortly thereafter intervened in and took over the prosecution of Labreche, over the objection of the plaintiff.

[6] The plaintiff brought an application to recuse the Crown from the prosecution of Labreche, alleging Crown bias, abuse of process and a breach of the plaintiff's s. 7 Charter right. On August 12, 2015, Poupore J. dismissed the application finding that the Crown had lawful authority to intervene and rejecting arguments of abuse of process and bias. On October 6, 2015, the Crown withdrew the charge against Labreche in the Ontario Court of Justice, asserting that there was no reasonable prospect of conviction.

[7] On October 14, 2015, the plaintiff sought an extension of time in the Court of Appeal to appeal the ruling of Poupore J. On November 24, 2015, the Court of Appeal dismissed the request. Epstein J.A. held that the plaintiff had not adequately explained the delay, the appeal was moot as the charge had already been withdrawn, and there were no serious grounds of appeal in any event.

[8] In November 2015 the plaintiff changed tack and launched a new application and constitutional issue asserting violation of his s. 7 Charter rights because the Crown was biased in its intervention into the prosecution and withdrawal of the charge against Labreche. The plaintiff applied for the same relief as before and sought to have s. 507.1 of the Criminal Code, R.S.C. 1985, c. C-46, and s. 11(d) of the Crown Attorneys Act, R.S.O. 1990 c. C.49, struck down as unconstitutional, since they permitted Crown intervention into the private prosecution process. On April 29, 2016, Cornell J. heard and dismissed the application on the basis of issue estoppel, as the "same issues have been raised in the previous proceedings" before Poupore J. Cornell J. further found no basis in any event for the relief that was sought. On March 31, 2017 the Court of Appeal agreed. The Supreme Court of Canada denied leave on October 26, 2017.

Issue 1: Should the claim against Her Majesty the Queen in Right of Ontario be struck?

The civil suit against the Crown

[9] In a statement of claim dated March 21, 2016, the plaintiff launched this action against Flanagan and the Crown in negligence and for breaching the plaintiff's s. 7 Charter right. The plaintiff amended his statement of claim on October 2, 2017, adding allegations of malice, bad faith, defamation, libel and slander against Flanagan and the Crown. By order of Wilcox J. on December 15, 2018, the action was dismissed as against Flanagan, and her name was removed from the style of cause. The parties agree that the Crown is liable for any misconduct attributable to Flanagan.

[10] Included in the catalogue of alleged misconduct by Flanagan in the plaintiff's original civil claim are the same types of things that had also been put before this court in the plaintiff's prior applications:

a. Failure to charge Labreche criminally for his treatment of the plaintiff;

b. Failure to consult with the plaintiff as a victim of crime or after intervening in the prosecution of Labreche;

c. Flanagan cross-examined the plaintiff at the pre-enquête involving the charge against Labreche, made submissions about an officer's right to use force, and then assumed carriage of the plaintiff's private prosecution of Labreche;

d. Flanagan gave no grounds for intervening in the private prosecution;

e. Flanagan did not seek a weapons prohibition against Labreche, allegedly contrary to Crown policy;

f. The plaintiff was denied access to pictures of his injuries taken in the police booking room after his arrest, and was frustrated about other disclosure requests;

g. Flanagan allegedly provided sensitive information about the plaintiff to counsel for Labreche;

h. Flanagan gave the plaintiff only two days' notice before withdrawing the charge against Labreche;

i. Flanagan waited to withdraw the charge against Labreche until the appeal period on the application of Poupore J.'s ruling had lapsed;

j. Flanagan's decision to withdraw the charge against Labreche was based on inaccurate information.

[11] The plaintiff claims as new material in the amended statement of claim, not litigated before Poupore J. or Cornell J., details of Flanagan's on-the-record courtroom statements to the presiding Justice in the Ontario Court of Justice on October 6, 2015, in which Flanagan explained her decision to withdraw the charge against Labreche. Without going into detail here about the plaintiff's allegations, the plaintiff argues that certain things that were offered as "facts" by Flanagan to the court about the case and the reasons for its withdrawal are defamatory and slanderous of the plaintiff or ground a claim in negligence.

The plaintiff's position on this motion to strike the claims against the Crown

[12] In his factum and at the hearing of this matter, the plaintiff conceded that the defamation claim cannot proceed based on procedural issues that must be satisfied in such a claim but were not. Accordingly, the defamation claim is struck.

[13] However, the plaintiff argued that the rest of his claims should be permitted to proceed, and that Flanagan's words in court on October 6, 2015 at least ground the allegation of negligence and represent new material that defeats any issue estoppel.

Discussion

[14] In my view, the entire claim against the Crown must be struck without leave to amend.

[15] The bulk of the arguments raised by the plaintiff in his claim as against Flanagan, and thereby the Crown, reflect complaints already brought in earlier applications and decided against the plaintiff in final judgments.

[16] Issue estoppel precludes the re-litigation of issues previously decided in another court proceeding. For issue estoppel to be successfully invoked, a party must show that the issue was the same as one decided in a prior final court decision and that it involved the same parties: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 25.

[17] At issue before Poupore J. were allegations of a breach of the plaintiff's s. 7 Charter right through the Crown's interference in the plaintiff's private prosecution, abuse of process by the Crown, and Crown bias. Poupore J. found no breach of any Charter right, no bias, and no abuse of process. The Court of Appeal held that the plaintiff's attempt to appeal that decision was without merit.

[18] At issue before Cornell J. were allegations of breach of the plaintiff's s. 7 Charter right, based on the Crown's bias in intervening in and withdrawing the privately laid charge. The same allegations of bias were levelled at the Crown as in the application before Poupore J. Cornell J. held that the material before him contained "nothing new" and dismissed the application on the ground of issue estoppel. The Court of Appeal (2017 ONCA 266) upheld the decision of Cornell J. and determined that the doctrine of issue estoppel applied, given that the two applications raised identical issues of Crown bias and breach of the s. 7 right. The withdrawal of the charge against Labreche was not a new fact that prevented the application of the doctrine. The Supreme Court of Canada rendered the decision of the Court of Appeal final.

[19] What is involved in the present case is an effort by the plaintiff to have a civil court reconsider his claims of alleged bias and abusive conduct by the Crown that led to a breach of his s. 7 Charter right. It changes nothing of substance that the case is now dressed up as a civil action for negligence. The parties are the same and the conduct at issue still focuses on the Crown's participation in the pre-enquête, and intervention in and withdrawal of the privately-laid charge against Labreche. With respect to Flanagan's handling of the case and actions leading up to October 6, 2015, the same allegations of bias and improper conduct are being brought as were already found to be unexceptionable in final orders in this court and the Court of Appeal. The fact that this is a civil action, and not an application in a criminal court, is not significant in the issue estoppel analysis: see, e.g., Ontario v. Gray, [1996] O.J. No. 1894 (O.C.(G.D.)), at para. 15. The claims based on Flanagan's conduct up to October 6, 2015 are estopped.

[20] The plaintiff submits, however, that Flanagan's October 6, 2015 courtroom utterances ground a further claim in negligence in that Flanagan owed a duty of care to the plaintiff, breached that duty negligently by stating "lies" to the court concerning the evidence as a basis for withdrawing the charge, and that harm was thereby caused to the plaintiff's reputation because members of the press were present and reported on Flanagan's statements. In what follows, I will not address the obvious concern that this explanation of the claim of negligence looks a lot like an assertion of defamation, which the plaintiff conceded could not proceed.

[21] At least two factors require the striking in its entirety of the plaintiff's claim involving the Crown because of Flanagan's alleged negligence in general, and in particular because of her words in court on October 6, 2015.

[22] The first factor involves the doctrine of prosecutorial immunity, which protects a Crown Attorney from claims of negligence for acts committed pursuant to her duties: Smith v. Ontario (Attorney General), 2019 ONCA 651, at paras. 96-98. Given this immunity, it is plain and obvious that the allegation of negligence against the Crown based on the acts or conduct of Flanagan is not a reasonable cause of action and must be struck without leave to amend.

[23] The second factor additionally recognizes that Flanagan, like any lawyer, enjoys complete immunity for statements made in a court proceeding, as the October 6, 2015 statements were: Admassu v. Macri, 2010 ONCA 99, at paras. 18-19. It is plain and obvious that no allegation of negligence can be sustained against the Crown based on words Flanagan used to address the court on October 6, 2015.

Conclusion

[24] The claim as against Her Majesty the Queen is struck without leave to amend. It is plain and obvious that the claim cannot proceed even with amendment, as it is estopped and abusive, or relies on the alleged negligence of Flanagan, which cannot be maintained as an action.

Issue 2: Should the claims involving the OIPRD be struck?

The plaintiff's complaint to the OIPRD

[25] In mid-July 2014, the plaintiff made a complaint about the events of June 18, 2014 and his treatment at the hands of police to the Office of the Independent Police Review Director (the OIPRD), a statutory administrative position created by the Ontario Police Services Act, R.S.O. 1990, c. P.15 (the PSA). The complaint was reviewed, determined to merit investigation, and referred to the GSPS for that purpose pursuant to s. 61(5)(a) of the PSA. On July 24, 2014, the plaintiff was advised of the referral to the GSPS and, until the current action, expressed no concerns about that referral. One of the investigators in the GSPS investigation was defendant John Valtonen (Valtonen). On July 20, 2015, the plaintiff was advised in writing by the GSPS that his complaint had been found to be unsubstantiated; the GSPS investigative report was enclosed. The plaintiff was also advised that he could request the Director of the OIPRD (the Director) to review the matter if he was not satisfied with the GSPS findings, an authority pursuant to s. 71 of the PSA. The plaintiff never requested that review.

The plaintiff's claims involving the OIPRD

[26] In his amended statement of claim, the plaintiff alleges that the Director breached the plaintiff's s. 7 Charter rights and acted maliciously and in bad faith towards the plaintiff. These claims are based on:

a. the referral of the initial investigation of the complainant against Labreche to the GSPS, which tells against the independence of the OIPRD;

b. the investigation into a GSPS officer was conducted by the GSPS;

c. the report into the complaint by the GSPS was biased, as the members of that police service were biased and in a conflict of interest;

d. the report found no fault on the part of Labreche;

e. the report did not include consideration of some facts, details and evidence that the plaintiff considers to be important;

f. the report accepted as true statements of Labreche that the plaintiff asserts were directly contradicted by video evidence.

[27] The plaintiff also seeks to strike down ss. 26.1(9), 26.1(10), and 26.1(11) of the PSA, as contrary to s. 7 of the Charter. These provisions legislate a privilege about information acquired during the treatment of the matter by the OIPRD, restrict the giving of testimony in civil proceedings about information gleaned by the OIPRD, and render OIPRD documents inadmissible in a civil proceeding. Section 61(5)(a) of the PSA is also challenged as contrary to s. 7 of the Charter, on the ground that "security of the person" includes the right to an unbiased review of government misconduct by an independent arbiter. The plaintiff further seeks declarations that all police wear body cameras and record all interactions with the public, and not discourage members of the public from recording interactions with police, as it is a principle of fundamental justice that "the Court receive the best evidence possible to engage in a proper search for the truth."

[28] In addition, the claim seeks declarations and orders pursuant to s. 24(1) or s. 52(1) of the Constitution Act, 1982, including such things as: the OIPRD is biased; that it should be abolished and replaced; that it should not be referred to as "independent"; that it not be permitted to refer public complaints about a police officer to the officer's own force; and that it "arrange for a new investigation" of the plaintiff's complaint against Labreche. These claims appear to be the OIPRD equivalent to the assertions of bias raised against Flanagan so many times before this court.

[29] As in the case of Flanagan, the action was dismissed as against the OIPRD by order of Wilcox J. on December 15, 2018, and the OIPRD was removed from the style of cause. The parties agree that the Attorney General of Ontario is liable for OIPRD misconduct.

[30] I will consider the various claims of the plaintiff.

Section 7 of the Charter and the PSA provisions relating to the OIPRD

[31] The plaintiff argues that ss. 26.1(9), 26.1(10), and 26.1(11) of the PSA deprive the civil court of the benefits of the GSPS investigation into the conduct of Labreche, and therefore prevent the court from having access to the "best evidence". Likewise, that police officers are not compelled to wear cameras to preserve evidence of their dealings with the public and can threaten civilians who wish to record police actions, also prevents the court's access to the "best evidence". The plaintiff asserts that legislation or the absence of legislation that prevents access to the "best evidence" is not in accordance with the principles of fundamental justice and violates his right to "security of the person".

[32] In my view, it is plain and obvious that the constitutional attacks on the provisions of the PSA relating to the OIPRD cannot proceed.

[33] Section 7 of the Charter provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[34] I have been directed to no authority that suggests that a court has free-ranging authority to legislate the wearing of cameras by police officers, or to require the OIPRD to direct that officers not discourage members of the public from recording interactions with the police, in the name of the principles of fundamental justice. The plaintiff submits that such orders could be made "at common law." I do not agree: see, e.g., Tanudjaja v. Canada (Attorney General), 2013 ONSC 5410, at paras. 59, 103. It is plain and obvious that such a claim cannot proceed.

[35] With respect to the plaintiff's challenge to subsections of s. 26.1 of the PSA, I have been directed to no authority that establishes that access to the "best evidence" in a civil claim brought against the government is a principle of fundamental justice protected by s. 7 of the Charter. In R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 112-3, the Supreme Court of Canada required a measure of particularity and consensus in identifying legal rules as "principles of fundamental justice", stating (at para. 113):

In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

[36] The "best evidence" rule, apparently relied upon by the plaintiff, defines a moving target. What constitutes "best evidence" is a subject of continuing debate, though it has been taken to mean no more than that a litigant "should endeavour to put forth the best evidence that the nature of the case will allow": R. v. Shayesteh, 1996 882 (ON CA), [1996] O.J. No. 3934 (C.A.), at para. 90. Such a definition demonstrates no precise or manageable standard against which to measure the plaintiff's assertions of what would be the best evidence to have available for a given claim in a civil court. Rather, the impugned provisions in the PSA provide that the "nature of the case" here is such that the civil claim will not include reports and evidence generated by the OIPRD. They do not prevent the civil claim from proceeding against defendants Labreche, Greater Sudbury Police Services Board, or Valtonen, and they do not prevent the plaintiff from putting forward other evidence that is not subject to legislative protections. It is plain and obvious that the s. 7 Charter claim to strike down ss. 26.1(9), 26.1(10), and 26.1(11) of the PSA in the name of permitting the "best evidence" to be put before a civil court is frivolous and cannot proceed, as the provisions cannot be shown to offend a principle of fundamental justice.

[37] As to s. 61(5)(a) of the PSA, there is nothing in the pleadings or anywhere else that explains how the referral by the Director of a civilian complaint to the GSPS somehow affected the plaintiff's security of the person. "Security of the person" has been held to involve notions of personal autonomy and control over one's bodily or psychological integrity free from state interference, including any state action that causes physical or serious psychological suffering or harm: Carter v. Canada (Attorney General), 2015 SCC 5, at para. 64. Nothing of this sort has been pleaded with reference to to s. 61(5)(a) of the PSA.

[38] Moreover, there must be a real, and not a speculative, causal connection between the context of a given case and a person's life, liberty, or security of the person to successfully invoke the protections offered by s. 7 of the Charter: Bedford v. Canada (Attorney General), 2013 SCC 72, at para. 76. There is no such causal connection at all here in the circumstances of the Director's mere referral of the plaintiff's claim to the GSPS, and it is plain and obvious that such a claim cannot proceed.

[39] Finally, this civil action as against the OIPRD and the Director represents an impermissible collateral attack on decisions and determinations made in an administrative context. To permit the plaintiff to seek in a civil court, by way of a civil claim, a different conclusion than that reached in the OIPRD process would be akin to an abuse of process: Boucher c. Stelco Inc., 2005 SCC 64, at para. 35; British Columbia (Worker's Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at paras. 31-33. Where administrative remedies are available for an administrative decision, they should be exhausted before resort is had to the court, and that should be by way of appeal or judicial review of the administrative decision: Figliola, at paras. 28-30; Cimaco International Sales Inc. v. British Columbia (Business Practices & Consumer Protection Authority), 2010 BCCA 342, at paras. 42-44.

[40] In this case, the plaintiff was aware early on of the Director's referral of his complaint to the GSPS for investigation. He made no complaint about that decision at the time. When the GSPS report was completed and the result disclosed, the plaintiff was given the option to have the Director review it under s. 71 of the PSA. He did not request such a review and sought no judicial review of the decision to refer the complaint to the GSPS in the first place.

[41] As discussed above, sections 26.1(9), 26.1(10), and 26.1(11) of the PSA relate to the OIPRD and restrict the use of OIPRD evidence. Nevertheless, they clearly also contemplate the existence of civil proceedings in tandem to the administrative complaint procedure, and some latitude must be given to allow for different remedies in different forums: Penner v. Niagara Regional Police Services Board, 2013 SCC 19, at para. 50. However, it is abusive of the court process at this point and in this forum, when the plaintiff did not avail himself of immediate and appropriate remedies in the administrative context, to now allege tortious conduct against the OIPRD and its Director and breaches by them of constitutional standards, in hopes thereby of subverting the findings in the GSPS report. For that appears to be the plaintiff's focus; it is noteworthy that he alleges no injuries or losses in his statement of claim that are attributable to the alleged unconstitutional conduct of the OIPRD. These claims cannot proceed.

Allegations against the OIPRD of malicious actions and bad faith

[42] With respect to allegations of malice and bad faith against the OIPRD, such claims must be struck without leave to amend, pursuant to Rule 25.11(b).

[43] The OIPRD enjoys an immunity that is engaged in the circumstances of this case. The claim focuses on harm somehow caused to the plaintiff by the Director's referral of his complaint to the GSPS for investigation, an exercise by the Director in the performance of his duties, pursuant to a statutory provision. The Director is immune from such an action pursuant to s. 26.1(2) of the PSA, which provides:

Immunity

(12) No action or other proceeding for damages lies or shall be instituted against the Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5 (1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director, for any act done in good faith in the execution or intended execution of any power or the performance or intended performance of any duty under this Act or for any alleged neglect or default in the execution or performance in good faith of that power or duty.

[44] This provision has been held to represent an intent by the Legislature to ensure that the Director and the OIPRD would not be held civilly liable for decisions made in the course of their duties: Kim v. Office of the Independent Police Review Director: April 2, 2012, Ontario Superior Court. Such an immunity for judicial and administrative decision-makers is in fact "grounded in attempts to protect their independence and impartiality, and to facilitate the proper and efficient administration of justice": Ernst v. Alberta Energy Regulator, 2017 SCC 1, at paras. 114-9 (per Abella J., concurring). Moreover, the plaintiff's bare allegation of bad faith, with no particulars in support, is insufficient to uproot a statutory immunity for actions taken in good faith: Portuguese Canadian Credit Union Ltd. v. 1141931 Ltd., 2011 ONSC 6158, at para. 35.

Conclusions concerning claims against the OIPRD

[45] In all the circumstances of this case, the claims relating to the OIPRD cannot proceed. They are frivolous, abusive, and disclose no reasonable cause of action. The plaintiff's claim is struck as against the Attorney General of Ontario without leave to amend.

Conclusion

[46] For the above reasons, the plaintiff's claims as against the Crown defendants in the amended statement of claim are struck without leave to amend. It is plain and obvious that none of the claims made by the plaintiff against Flanagan or the OIPRD, and through them the Crown defendants, can be sustained or permitted to proceed.

[47] If the parties are unable to agree on costs, they may provide written submissions of no more than three pages to the court within 45 days.

The Honourable Mr. Justice A.D. Kurke

Released: September 04, 2019