ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Diana Al Masalkhi
Plaintiff
– and –
The Attorney General of Canada
Defendant
Kenneth W. Golish, Counsel for the Plaintiff
Melanie Toolsie, Counsel for the Defendant
HEARD: September 30, 2019 at Windsor
THOMAS, RSJ.:
The Motion
1The Attorney General of Canada, (“A.G. Canada”), brings this motion for summary judgment, pursuant to r. 20.01(3) of the Rules of Civil Procedure to dismiss this action in its entirety. The motion is grounded in an allegation that there are no material facts in dispute, no genuine issue for trial, and further, that the action is an abuse of process.
Background – The Criminal Proceeding
2In August 2011, the police received information from an informant suggesting that Sandra Zaher, (“Zaher”), a lawyer in Windsor practicing immigration law, had counselled misrepresentation to immigration officials to obtain refugee status. Zaher was the employer of the plaintiff, Diana Al Masalkhi, (“Al Masalkhi”). Sergeant Richardson, (“Richardson”), of the RCMP was tasked with investigating Zaher in relation to offences under ss. 126 and 127 of the Immigration and Refugee Protection Act and s. 137 of the Criminal Code.
3An undercover operation ensued, in which it appeared to investigators that Zaher’s legal assistant was also complicit in fabricating a fraudulent claim. Ultimately, Zaher and the plaintiff were jointly charged with the three offences. Zaher was convicted on all charges while Al Masalkhi was found not guilty. Zaher’s conviction and sentence were upheld on appeal.
4The undercover investigation called for two police officers to interact with Zaher. One officer posed as a refugee claimant from India, (“Gill”), while the other posed as an interpreter, (“Singh”). Gill feigned poor English skills and acted as an individual with no realistic basis to gain refugee status while Singh posed as an acquaintance helping to translate on behalf of Gill during interactions with Zaher.
5Richardson was the lead investigator and I have his affidavit on this motion. Richardson obtained warrants to intercept the communications between the undercover officers and Zaher pursuant to s. 184.2 of the Criminal Code on the basis of sworn affidavits and informations to obtain, (“ITO”). When it appeared to investigators that Al Masalkhi was complicit in fabricating a fraudulent claim for Gill, further judicial authorization was sought and granted to intercept communications involving her.
6The reasonable and probable grounds supporting the investigation, arrest and prosecution of Al Masalkhi, including her intercepted communications, were explored in the investigation and at the trial conducted by Pomerance J. over 26 days.
7It is clear that:
judicial authorizations to intercept communications involving the accused were granted based on Richardson’s affidavits and ITO;
the validity of the “wiretap” warrants was upheld in Pomerance J.’s voir dire ruling, which found a “cogent basis” for their issuance;
no Charter breaches were established;
Pomerance J. noted that Richardson had no intent to mislead the court when two defects in the ITO emerged after cross-examination at the voir dire; and
the trial judgment indicated that the Crown’s case against both accused was rooted in “objective, undisputed evidence,” with the critical issue at trial being the inferences that could be drawn from such evidence.
8In a detailed judgment released July 8, 2016, Pomerance J. convicted Zaher and acquitted the plaintiff Al Masalkhi. In January 2019, the Ontario Court of Appeal dismissed Zaher’s appeal of her conviction and sentence, affirming Pomerance J.’s voir dire ruling on the validity of the wiretap authorizations. The Court also emphasized the trial judge’s finding that Richardson had acted in good faith in conducting his duties.
Background – The Action
9The plaintiff commenced this action by Statement of Claim issued April 18, 2018. The plaintiff commenced the proceeding as a simplified procedure action under r. 76 despite the fact that it claimed general and special damages of $2M. The claim alleges negligent investigation and malicious prosecution. More specifically, the plaintiff argues there was no reasonable and probable grounds for the arrest of the plaintiff. Counsel for the plaintiff sees this investigation as unique in that the target of the investigation was Zaher. He suggests that Al Masalkhi was never a threat to the integrity of the immigration system and that she was only being used to assist by investigators to secure the conviction of Zaher.
10Further, counsel argues that as to the claim grounded in malicious prosecution, he should be allowed to continue through discoveries and trial to explore what motivated the prosecutor to continue the prosecution.
11The defendant delivered a statement of defence on May 31, 2018 and took no steps pursuant to r. 76.02(5) to move the action to the standard procedure track.
12It would appear that there has been no oral discovery and no affidavits of documents have been exchanged.
13The defendant brings this motion for summary dismissal and provides the affidavit of Richardson including an extensive record. That material includes the ITOs and authorizations to intercept, the voir dire ruling of Pomerance J., the judgment of Pomerance J., the relevant trial transcripts and the judgment of the Court of Appeal on the Zaher appeal.
14In response to this r. 20 motion, the plaintiff provides what is essentially written argument which includes the content of the statement of claim. There is no supporting affidavit.
The Law – Reasonable and Probable Grounds
15The issue of reasonable and probable grounds as it relates to a claim in negligent investigation has been litigated extensively. Below I will reproduce what I see as the decisions best driving the analysis required here.
16The case most referenced for the concept of reasonable and probable grounds and the duty of investigating police officers is Hill v. Hamilton-Wentworth Police Services, 2007 SCC 41, [2007] 3 S.C.R. 129. At para. 73, the Chief Justice wrote:
73 I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. (See Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351; Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688 (C.A.); Klar, at p. 359.)
17The standard of care necessary for the police investigation will be met when the charges are based on reasonable grounds that an offence occurred. In 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, the Court of Appeal at paras. 48-52 again summarized the reasonable grounds standard:
[48] The conduct of a reasonable police officer may vary depending on the stage of the investigation and the legal considerations. In laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty: Hill, at para. 55.
[49] The Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251, defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. See also: R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 24. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make an arrest: R. v. Storrey, at p. 251.
[50] The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251; Wong v. Toronto Police Services Board, 2009 CanLII 66385, 2009 CarswellOnt 7412 (S.C.), at para. 54; Gioris v. Toronto Police Services Board, 2012 ONSC 6396, 2012 CarswellOnt 15071, at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:
The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused.
[51] The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.
[52] Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244, [2012] O.J. No. 2529, at para. 16; Wong, at para. 59.
18In para. 90 of Flood v. Boutette, 2019 ONSC 5633, Pomerance J. succinctly captures the principles defined by a number of binding authorities:
[90] I suggest that the following principles may be extrapolated from the above passages:
The appropriate standard of care for the tort of negligent investigation is that of the reasonable investigator in similar circumstances.
In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.
The standard of reasonable grounds to believe is rooted in credibly based probability. It is something less than a balance of probabilities, or a prima facie case.
The police are not required to make legal judgments or predict findings of guilt or innocence.
A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.
The law does not demand a perfect or optimal police investigation, only that investigators act reasonably. An error in the interpretation of a legal standard, if reasonable, does not breach the standard of care.
Application of the Facts to Reasonable and Probable Grounds
19I note that once the investigation into Zaher was commenced, investigators incrementally, over an eight-week period, obtained three authorizations to intercept communications. The last in the series, granted on March 22, 2012, named Al Masalkhi as a named principle for interceptions.
20As mentioned previously, the authorizations were Charter challenged at trial and upheld by Pomerance J. The Court of Appeal dismissed the appeal and found no fault with the trial judge’s decision to admit the intercepted communications.
21Investigators initially determined their focus to be on the conduct of Zaher. They quickly came into contact with her assistant Al Masalkhi.
22Below I will reproduce portions of the judgment of Justice Pomerance which accurately summarizes the undercover officers’ interaction with this plaintiff and are consistent with the transcripts provided. Those conversations determine my conclusion on this portion of the analysis.
23It is important to place the conduct of the plaintiff Al Masalkhi in context.
24I have reproduced below paras. 28-34 of the trial judgment which summarizes Gill’s first interview with Zaher:
[28] Ms. Zaher did not ask Gill why he could not return to India. She nonetheless said to him:
“ …[T]he first step is you have to have a story for your refugee, some kind of political persecution ah probably in India it would be political persecution there is a lot going on India right now a lot of political upheaval but you have to have a story first of all to claim refugee so that’s the starting point, you have a story and then like it has, you have to be persecuted somehow.”
[29] Later, she said: “…it begins with a story a refugee story and then you make, you have to make your claim, you have to go to immigration and make your claim your refugee claim”.
[30] Ms. Zaher told Gill that he had “to be persecuted somehow”. He stated that: “..ah India the police are yknow [sic] the nobody believe in them, right” and Ms. Zaher agreed that police were corrupt.
[31] As Ms. Zaher outlined the process and the fees, Gill said: “but uh do you say I have to be in trouble and uh India I don’t, but I don’t have trouble”. Ms. Zaher said: “Its not that you have to be in trouble ahm the ref refugee protection has different grounds, political persecution like you’re being persecuted somehow for your political opinion, okay”. She told Gill that “there has to be a story”, that “you have to be persecuted for some reason”. Gill responded by saying: “I don’t have problems, then what do I do, I want to stay in Canada.” (Page 11)
[32] After determining that Gill had insufficient points under other Immigration criteria, Ms. Zaher outlined the choices for Gill if he wished to stay in Canada: “Become educated, you get a diploma or degree in the University or College or you marry a Canadian citizen or permanent resident or you make a refugee claim.”
[33] Ms. Zaher made it clear that a refugee claim starts with “some form of persecution ah so anyway, and then you would go to Immigration on Walker Rd., right and you would start your refugee claim.”
[34] The meeting ended with a decision that Gill would return with an interpreter. He made a second appointment with Ms. Al-Masalkhi.
25On February 27, 2012 Gill met with Al Masalkhi. Those initial conversations with the plaintiff are detailed in paras. 42-50 of the trial judgment:
[42] Toward the beginning of the meeting, Ms. Al-Masalkhi launched into suggestions regarding different grounds for persecution.
[43] Ms. Al-Masalkhi stated that she needed:
“[A] tip so I can start the story, you know what I mean, he has to tell me what he is more comfortable with saying, an opinion, forming an opinion against the government so that we can find you know. We can concentrate our research that way to see how the government is corrupt and see how he can you know he is, when look into protest there or go through Sikh religion and see how they are being treated and incorporate his practice into this.”
[44] “Sunny” denied that Gill was a member of any political party. He denied religious persecution in India.
[45] Ms. Al-Masalkhi stated that it would be easier for Gill to prove he practices the Sikh religion than for him to bring proof that he participated in a protest. Ms. Al-Masalkhi asked for specific information about where he lived and a temple he visited to allow her to do research.
[46] Ms. Al-Masalkhi asked Gill if he knew any friends or people that were arrested “because he’s his friend you know he’s, they are thinking he’s associated as friend.”
[47] At 2:30 p.m., Ms. Al-Masalkhi stated:
“I’ve got a very good idea of how he lives and you know it’s the fact that he had a very simple life back in India and that he has a family too and that he does practice Sikh, is enough for me to start looking to this direction, I’m gonna do an intensive research today and tomorrow about what kind of story he can have and I will discuss it with him but can you come back for example tomorrow around 4:00 o’clock here and then we can talk.”
[48] Ms. Al-Masalkhi spoke of her instructions from Ms. Zaher:
“So she (Zaher) is telling me to sit with him and give him the ideas like he will eventually sit with her once, once she drafts the, narrative he will give her his opinion to her but the first tips they are easy, I have to put that and get it rolling and I have to do the, forms and then he will meet with her once she’s free.”
[49] Ms. Al-Masalkhi made clear: “in order for that to happen I have to have at least the forms done and I have to have some kind of tips for the story, that’s not enough what I have I will have to communicate with him during the week.”
[50] She provided Gill with a questionnaire, instructing Gill to complete and return it to her by facsimile transmission. She said that he: “needs to try to remember events, problems that happened to Sikhs and gives me ideas so I can formulate a problem for him.” She asked “for a few ideas from which she’ll take the best one that fits Gill’s lifestyle, the dates and everything we’ll take it from there.” She confirmed that “he is hard because he has nothing not even protest in his own city I guess you know, I will have to come up with something really convincing so to that fact that he is coming for protection, not for you know, living”.
26Consistent with the instructions received from Zaher, Gill forwarded a letter to the law firm which was drafted by Richardson. The letter recounted that Gill was aware of the death of Sucha Singh, a person of the Sikh religion who was killed by police. The letter stated that Gill had a friend who knew the police said “many bad things” to Singh and treated him “roughly”. Gill’s letter suggested he might be able to locate the friend and get more details.
27On March 8, 2012 Al Masalkhi confirmed receipt of the letter and wrote the following:
[63] Ms. Al-Masalkhi confirmed receipt of Sgt. Richardson’s letter:
“Thank you for the story it really helped…we’re gonna try to use him some way to you know have a part in that incident may be, something like that so, we’ll see I am not sure if she is gonna, she was thinking about it yesterday and she thought it was, it would be a good idea to just you know have him be the driver instead of the friend…” (00:45, Page 1)
28In paras. 64-69 of the trial judgment, Pomerance J. details Al Masalkhi’s role in the development of the story, completion of the immigration form and the upcoming interview with an immigration officer:
[64] While Ms. Al-Masalkhi obtained information from Mr. Gill for the purpose of completing the refugee application form, she directed the officer’s attention to Box 43, the portion of the form where there was to be a brief of the “story”, Ms. Al-Masalkhi stated:
“…I may include the story, in all like we can do that ah we’ll see, depends on how Sandra feels comfortable about it and ah now once you decide on the story that’s the important part, its there, you’re givin’ a little bit of information about why you are making a refugee claim, ok and normally when they see a story attached they don’t ask him, they just say see attached, right and ah but if, if we are not going to attach the story then he should just say briefly why, you know I was a driver and I’m, it depends on the story like we, we’ll go over that like I will prepare him as to what he an, should answer, once he’s done the interview with Sandra ah I will take her instructions…”
[65] Ms. Al-Masalkhi told Gill “…and then once he gets the story he has to know the story, that’s it…”
[66] Ms. Al-Masalkhi coached Mr. Gill on what to say at the interview with the Immigration office after specifically making reference to an immigration officer named Bill. Ms. Al-Masalkhi stressed the importance of responding to questions at the interview. She suggested that the officer may go back and ask the same question indirectly by putting to Gill that the immigration officer may ask: what if the incident is over and you are safe to go back do you want to go back to India? Ms. Al-Masalkhi instructs Gill to say “I will never feel safe and I don’t want to go back ever, I want to stay in Canada, I am protected in Canada so it’s something like that, anything regarding the leaving back to India, he should say I am scared, I don’t want to go back I don’t trust them.” (22:35, page 16)
[67] In reference to the passport, which Gill told the accused had been purchased from an agent in India, Ms. Al-Masalkhi instructed Gill to say:
“[O]k and then I paid him this money, I was afraid, I wanted to leave, I paid him his money and $12,000.00 US dollars…”
[68] Ms. Al-Masalkhi, knowing that Gill was working in Brampton, told Gill not to disclose this to the immigration officer “…we don’t want to get in any trouble, right say that yeah my friends helped me out you know.”
[69] With respect to other portions of the form, Ms. Al-Masalkhi said:
“Now the following question really depends on the story, they’re going to ask have you ever been sought by the police or army or any authority in, in India, it’s the, the government is he wanted, now some police you know police would be after him sometimes if he is persecuted right, well it really depends on the story I, we don’t have an answer yet but when Sandra comes and we find out the story, we’ll find out what the answer for this is.”
29Zaher then entered the room and paras. 71-75 provide the details of how the claim would ultimately be constructed and the creative license used by Zaher:
[71] With reference to the letter prepared by Sgt. Richardson, Ms. Zaher said “I mean I can work with this, I can change it and make it more political, like for, political protest its always strong, its guaranteed [ inaudible ] for protest.”
[72] Ms. Zaher asked several questions about the story in the letter. She spoke about the importance of credibility before the Immigration and Refugee Board. She said “…I try to mix as much truth as possible ah so that when the judge asks some detailed questions he appears credible ah but I changed the framework so I like to know how he feels for real you know if he is pro-government and its not gonna work ahm protest.”
[73] As they were going over the story, Ms. Zaher raised the question of whether Gill was at the protest. The following exchange occurred:
Sunny and then they put
Zaher yeah they put
Sunny He was in
Zaher his body on the road
Sunny Yeah he knows the whole incident like he
Zaher but he wasn’t there when they put his body on the road
Sunny no.
Zaher no
Sunny yeah he’s saying there’s there’s protest that ha’happened [sic] after because his body was left on the
Zaher yeah X. on the road ther’s [sic]
Zaher yeah
Sunny there’s protest that happened he knows that
Zaher did he got [sic] to that protest
Zaher it was june [sic] thirteen
Zaher June thirteen ah June thirteen two thousand and eleven, was he here or there
Sunny June
Zaher yeah the protest was June thirteen
Sunny then he knows about the protest, he he’s no explains it clearly
Zaher was he there in his country or here
Sunny ….he was in India yeah
Zaher so he was there
Sunny yeah
Zaher so he could’ve gon [sic] to this protest, eh
Sunny yeah he could’ve gone yeah.
[74] Shortly thereafter, Ms. Zaher commented: I think its good to, to go with the truth b’but [sic] ut [sic] him as participating in this protest you know. “Ms. Zaher explained:
“…[I]f he participated in this protest that would work because that becomes political ahm it’s a protest, he was there, if he was saying that there was police corruption the police are covering.”
“…if we change the story to say that, well you know a little bit to say that you went to this protest, you were part of it and you know people were yelling against police ah corruption, they killed Singh because of his religion, that would work, that becomes political speak you know.”
[75] Ms. Zaher confirmed with “Sunny” that they don’t check the story at the eligibility stage, she then said:
“…[H]e will be so well prepared that he, he will be more prepared than the judge that he won’t get caught even if it’s like he won’t get caught you know so don’t worry about that, our clients are so well prepared sometimes they get upset with me…”
30On March 29, 2012, Gill and Zaher attended at the Canada Immigration office and presented the completed form which detailed the facts supporting Gill’s claim. Zaher was arrested at that location. An arrest of Al Masalkhi was also made.
31After a lengthy trial and after making findings of guilt related to the charges against Zaher, Pomerance J. acquitted Al Masalkhi for the reasons she set out in paras. 162-166:
[162] My findings regarding Ms. Zaher lead me to the conclusion that I have a reasonable doubt as to the complicity of Ms. Al-Masalkhi in the commission of the offences.
[163] Ms. Al-Masalkhi denied having any role in the crafting of the story in Box 43. While she met with the clients on a few occasions, and talked about potential claims, she testified that Exhibit 36, Schedule “A” and Box 43 were prepared by Ms. Zaher, without her knowledge or complicity. Ms. Al-Masalkhi testified that, while she discussed potential claims with the client, she was not involved in drafting the story that appeared in Box 43.
[164] During meetings with the officers, some of Ms. Masalkhi’s statements had a potentially incriminating character. However, I cannot be satisfied, on the basis of those statements alone, that she intended to participate in a scheme to fabricate a refugee claim. Ms. Al-Masalkhi’s role was peripheral. She testified that the clients did not want to talk to her. They wanted to talk to the lawyer. She perceived that they did not trust her, and this was largely borne out by the recorded communications. The officers were much more interested in meeting with Ms. Zaher, no doubt because she was the primary target of the investigation.
[165] Ms. Al-Masalkhi did act in breach of her duties. She signed the third party declaration on the IMM 5611 form before Box 43 was filled out. Obviously, she could not certify the contents of the document to be true if the document was not yet complete. However, I accept Ms. Al-Masalkhi’s testimony that she knew that the box would be filled out by Ms. Zaher and that she trusted Ms. Zaher to do so in a truthful manner. I do not accept the Crown’s submission that premature signing of the declaration is proof of wilful blindness. The Crown has not proved that Ms. Al-Masalkhi was wilfully blind as to whether the document was false. There is a very real possibility that when she signed the document she believed that the contents would be true. That possibility furnishes a reasonable doubt as to guilt.
[166] In short, Ms. Al-Masalkhi’s testimony raises a reasonable doubt on the essential elements of the offences. She offered various explanations for her words as recorded during the meetings. She was not present for the central meetings in which the story was discussed. She did not type the documents that captured the evolution of the story. Through her conduct, she did assist Ms. Zaher in the preparation of the claim. But she can only be liable as a party if she knew that Ms. Zaher was preparing a false claim, and intended to aid or abet. The Crown has failed to prove that she can be fixed with that knowledge.
32Justice Pomerance, having seen and heard the evidence in the criminal trial was obviously entitled to come to the conclusions she did regarding the culpability of Al Masalkhi. I would suggest, however, that her acquittal was a close call. Focussing only now on the evidence available to the investigators, there can be no question that they possessed reasonable and probable grounds for her arrest.
33Al Masalkhi’s continued use of the terms “tips”, creating a “story” and the need to do “research” as well as her suggestion that she would make Gill’s friend the “driver” and not just a friend, all potentially place her in the midst of the fraudulent and false immigration claim. The investigators here acted reasonably, and in fact, were duty bound to make the arrests they did.
34The acquittal of the plaintiff does not allow for a retrospective recalculation of the evidence that confronted the officers.
The Law – Malicious Prosecution
35The plaintiff, in her materials, chooses to found her claim in what she terms “wrongful prosecution” but clearly what is alleged is that police and prosecutors continued to subject her to the criminal process maliciously.
36Lamer J. at p. 192 in Nelles v. Ontario, [1989] 2 S.C.R., (Nelles), provided the four necessary elements which must be proven to be successful in an action for malicious prosecution:
- The Tort of Malicious Prosecution
There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:
a) the proceedings must have been initiated by the defendant;
b) the proceedings must have terminated in favour of the plaintiff;
c) the absence of reasonable and probable cause;
d) malice, or a primary purpose other than that of carrying the law into effect.
The required element of malice is for all intents, the equivalent of “improper purpose”. It has according to Fleming, a "wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage” (Fleming, op. cit., at p. 609). 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. In fact, in some cases this would seem to amount to criminal conduct. (See for example breach of trust, s. 122, conspiracy re: false prosecution s. 465(1)(b), obstructing justice s. 139(2) and (3) of the Criminal Code, R.S.C., 1985, c. C-46.)
Further, it should be noted that in many, if not all cases of malicious prosecution by an Attorney General or Crown Attorney, there will have been an infringement of an accused's rights as guaranteed by ss. 7 and 11 of the Canadian Charter of Rights and Freedoms.
By way of summary then, a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of reasonable and probable cause, but he is held to a very high standard of proof to avoid a non-suit or directed verdict (see Fleming, op. cit., at p. 606, and Mitchell v. John Heine and Son Ltd. (1938), 38 S.R. (N.S.W.) 466, at pp. 469-71). Professor Fleming has gone so far as to conclude that there are built-in devices particular to the tort of malicious prosecution to dissuade civil suits (at p. 606):
The disfavour with which the law has traditionally viewed the action for malicious prosecution is most clearly revealed by the hedging devices with which it has been surrounded in order to deter this kind of litigation and protect private citizens who discharge their public duty of prosecuting those reasonably suspected of crime.
37Justice Charron in Miazga v. Kvello Estate, [2009] 3 S.C.R., (Miazga), extensively reviews the subjective and objective constituents of each of the four elements discussed by Lamer J. in Nelles.
38Importantly, for my purposes, Charron J. at paras. 74 and 75 set out below, provides instruction on the early termination of an action for malicious prosecution where as a question of law, the Court determines that reasonable and probable grounds exist:
[74] The Court’s analysis in Nelles lends further support to the conclusion that the third element of the tort turns on the objective assessment of reasonable and probable cause. Unlike the question of subjective belief, which is a question of fact, the objective existence or absence of grounds is a question of law to be decided by the judge: Nelles, at p. 193. As noted in Nelles (at p. 197), the fact that the absence of reasonable and probable cause is a question of law means “that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy”, or on a motion for summary judgment. These mechanisms are important “to ensure that frivolous claims are not brought” (Nelles, at p. 197). In some provinces, the ultimate decision as to whether or not there was reasonable and probable cause for instituting the prosecution is reserved by statute for the trier of fact: see, e.g., Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(10), and Jury Act, R.S.P.E.I. 1988, c. J-5, s. 3(5). Nonetheless, in the absence of any express provision to the contrary, the question whether there is a sufficient case to be put to the jury will remain a matter to be determined by the judge as a matter of law, in accordance with the respective roles of the judge and the jury. Therefore, factual inadequacy in a motion to strike a pleading or on a motion for summary judgment can still form a basis for the pre-trial striking of the pleading or the dismissal of the action, even where the ultimate determination of the issue may be expressly reserved by statute to the jury. See, e.g., Wilson, per Dambrot J.
[75] If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed, and the inquiry need go no further. See, e.g., Al’s Steak House & Tavern Inc. v. Deloitte & Touche (1999), 45 C.C.L.T. (2d) 98 (Ont. Ct. (Gen. Div.)), at paras. 11-13.
39The Court of Appeal in Farley v. Ottawa (Police Services Board) 2017 ONCA 689 at para. 9 adopted the reasoning above:
[9] Critical to success of the plaintiff’s causes of action as framed – malicious prosecution, negligent investigation and Charter infringement – as the motion judge pointed out, is the absence of reasonable and probable grounds to believe that the appellant committed the offences with which he was charged.
40As a result of my determination that reasonable and probable grounds existed, I need proceed no further in my consideration of the claim in malicious prosecution. I think it important to note, however, that the pleading of the plaintiff fails to name an individual or individuals who decided to initiate or continue the prosecution. It fails to suggest a single action by the prosecution that provides a suggestion of malice.
41Effectively the plaintiff argues that since malice is a finding of fact, she should be permitted to maintain this action and fish in the waters of discovery and trial in hopes of landing evidence of malice.
42That reasoning is fundamentally flawed and ignores completely the conjunctive elements of the Nelles test.
The Effect of the Criminal Proceeding
43The criminal trial of Al Masalkhi is important to the considerations here. The criminal prosecution included a preliminary inquiry, and a lengthy trial with a Charter challenge to the admissibility of some of the communications I have considered here. The trial judge provided detailed reasons and the Court of Appeal accepted her reasoning.
44At para. 97 in Miazga, Justice Charron noted the following:
[97] …
Absent a fundamental flaw in the criminal proceedings relied upon, it is perfectly reasonable that antecedent judicial determinations may support a finding by a civil court that there existed reasonable and probable cause for an impugned criminal prosecution.
Simplified Procedure
45In considering the summary dismissal of this action, I cannot forget that the action continues in the form of simplified procedure.
46Simplified procedure is meant in part to expedite a trial where facts are few. It is meant to reduce the costs of litigation where the matters litigated demand a speedy and cost-effective result. It is hard to imagine that this action is suited for simplified procedure with its inherent limitations on discovery and trial.
47The Supreme Court of Canada in Combined Air Mechanical Services Inc. v. Flesch (2011), 2011 ONCA 764, 344 DLR (4th) 193, commented upon the appropriateness of motions for summary judgment in the context of simplified procedure actions. The Court found that where there is a motion for summary judgment in a simplified procedure action the motions judge should apply the full appreciation test while recognizing that the simplified procedure should provide for a speedy trial in any event.
48I have considered this concern and, in this action, I see little chance of a speedy trial. However, in addition, there is clearly no genuine issue requiring a trial with respect to this claim.
49There is no flaw in the criminal proceedings and the antecedent findings of Pomerance J. support my conclusion that reasonable and probable grounds existed for the arrest of Al Masalkhi.
Abuse of Process
50The defendant also moves to dismiss this action on the basis that it is an abuse of process. There may be sound reasons to find this an action on abuse of process (Plate v. Atlas Copco Canada Inc., 2019 ONCA 196, paras. 94-100). However, considering my findings above, I need not consider abuse of process as a grounds for the relief sought.
Conclusion
51It is abundantly clear the reasonable and probable grounds existed for the arrest of the plaintiff. Further, these grounds dictated her continued prosecution. Her ultimate acquittal does not affect the sound reasoning applied by investigators regarding her complicity in the fraudulent claim for refugee protection. That determination dictates that her malicious prosecution claim must fail as well.
52I find there is no genuine issue requiring a trial. The action is dismissed in its entirety.
53I will receive written cost submissions from the parties if costs cannot be resolved on consent. Those submissions are to be delivered to the trial co-ordinator of the Superior Court in Windsor no later than 30 days from the release of these Reasons. The submissions are limited to four typed pages, not inclusive of the bill of costs or offers to settle.
Regional Senior Justice B. G. Thomas
Released: October 17, 2019.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Diana Al Masalkhi
Plaintiff
– and –
The Attorney General of Canada
Defendant
REASONS FOR JUDGMENT
THOMAS, RSJ.
Released: October 17, 2019.