Superior Court of Justice

Between

Matthew Deveaux
Plaintiff

and

• Cornwall Community Hospital
• Garda Canada Security Corporation
• Cornwall Police Services
• Cornwall Police Services Board
• Shawna Spotwart
• Justin Lafleur
• Rodney Degray
• His Majesty the King in Right of Ontario
• Ministry of Health
• The Government of Ontario
• The Government of Canada
  Defendants

Reasons for Judgment

Before: Roger
Date: March 31, 2025
Location: Cornwall, Ontario

Appearances

• Matthew Deveaux, Self-represented
• B. Fragomeni, Counsel for His Majesty the King in Right of Ontario, Ministry of Health

Table of Contents

• Reasons for Judgment – Page 01
  • Roger (Orally)
• Transcript Ordered: March 31, 2025
• Transcript Completed: April 01, 2025
• Ordering Party Notified: April 07, 2025

Reasons for Judgment

Roger (Orally):

Introduction

[1] This motion was heard on March 28, 2025. The plaintiff seeks leave under s. 17 of the Crown Liability and Proceedings Act (“CLPA”). He alleges that the defendants engaged in a cover-up of the crimes and civil wrongs committed against him by the defendants, municipal police officers Lafleur and Degray, and Cornwall Police. He makes references to many breaches of the Criminal Code, Human Rights Code, Constitution, and other statutes and obligations that the defendants allegedly breached. He alleges strict and vicarious liability.

Background Facts

[2] All of this follows the plaintiff’s arrest on August 8, 2021, for causing a disturbance, obstructing a police officer, and resisting the police officer, and his subsequent criminal trial. The police officers were at the scene of an accident between a vehicle and a pedestrian. The plaintiff was not involved in the accident, but had stopped his vehicle nearby. He was engaged with some of the bystanders and alleges that his vehicle was attacked and that he was prevented from leaving or moving by some of the bystanders. The plaintiff became agitated and claims that the police failed to adequately consider the actions of the bystanders when they decided to arrest him.

Further, he claims that he was illegally arrested and illegally searched, with the police search constituting an alleged sexual assault.

[3] His criminal trial in the Ontario Court of Justice occurred over non-consecutive days in 2023. It was interrupted by a third-party records application brought by the plaintiff for production of the materials of the Special Investigations Unit (“SIU”) which had investigated the police actions. In February of 2024, the Crown stayed the charges citing a lack of public interest to continue the prosecution considering the nature of the charges, the time to prosecute, and the need for the Crown to address backlog with its limited resources. The plaintiff’s appeal requesting that the criminal trial proceed was dismissed.

[4] In September 2024 the plaintiff amended his Statement of Claim adding the Crown as a defendant. The Statement of Claim is long, over 50 pages, and not the clearest document. As against the Crown, the plaintiff alleges that the Crown Attorney started and prosecuted the criminal charges for the improper purpose of absolving the police of criminal and civil liability for its actions at the time of his arrest on August 8, 2021. The plaintiff alleges the Crown Attorney purposefully did not disclose the SIU records, did not allow him to view a video until trial, ignored key evidence, and despite inconsistencies in the evidence continued the prosecution of these charges for the improper purpose cited above. These arguments were repeated during the plaintiff’s submissions on this motion.

Issues

[5] The issue on this motion is whether the plaintiff has met the test for leave under s. 17(7) of the CLPA.

Analysis

[6] The CLPA creates a screening procedure for claims against the Crown, or against an officer or employee of the Crown, for a tort of misfeasance or based on bad faith for anything done in the exercise of duties or functions. Such proceedings are now deemed stayed unless leave is granted. To obtain leave, the plaintiff must meet the two-part test provided at s. 17(7) of the CLPA. That section provides that the court shall not grant leave unless it is satisfied that:

a) The proceeding is being brought in good faith; and
b) There is a reasonable possibility that the claims of misfeasance or based on bad faith would be resolved in the plaintiff’s favour.

[7] “Good faith” has been interpreted to mean that the plaintiff brought the action in the honest belief that he has an arguable claim, not for an oblique or collateral purpose, and with a genuine intention and capacity to litigate the claim (Phixaykoune v. Ontario, 2024 ONSC 3860, para 15). The plaintiff must establish “good faith” on a balance of probabilities.

[8] Meeting the second part of the test requires the plaintiff to establish a reasonable possibility of success in the claims that the Crown or one of its officer or employee acted in bad faith. The reasonable possibility of success requirement of the leave test is “a meaningful but low threshold, merits-based test that is more than a superficial examination of the merits of the plaintiff’s cause of action, but a meaningful examination of the evidence to ensure that the action has some merits. It is meant to create a robust deterrent screening mechanism with a reasoned consideration of the evidence such that causes without merit are prevented from proceeding.” (Vecchio Longo Consulting Services Inc. v. Aphria Inc., 2021 ONSC 5405, para 83).

[9] “Bad faith” includes an intentional fault, such as intending to cause harm or the conscious doing of a wrongful act. As well, bad faith has also been interpreted more broadly to include serious carelessness or recklessness when it implies “a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed. The act, in terms of how it is performed, is then inexplicable and incomprehensible, to the point that it can be regarded as an actual abuse of power.” (Finney v. Barreau du Quebec, 2004 SCC 36, para 39). This was applied in Phixaykoune v. Ontario, 2024 ONSC 3860, paras 21-25, and in Sparks v. Ontario, 2010 ONSC 4234, paras 22-25. Circumstantial evidence of bad faith could suffice as could reckless or inexplicable conduct that points to an abuse of power or to the fundamental breakdown of the orderly exercise of authority.

[10] This reasoning was followed in another decision of the Supreme Court of Canada in Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, para 26, and as well by the Ontario Court of Appeal in Bennett v. Bennett Environmental Inc., 2010 ONCA 198.

[11] As the plaintiff appears to take issue with the constitutionality of s. 17 of the CLPA, I start by pointing out that its constitutionality has been recognized by the Court of Appeal in Poorkid Investment Inc. v. Ontario, 2023 ONCA 172. Further, although nothing turns on this, pursuant to s. 8(1) of the Ministry of the Attorney General Act, this action should have been started against the Attorney General of Ontario.

[12] Malicious prosecution is a tort based on bad faith. Malicious prosecution is difficult to establish, having a high threshold, because “courts should be very slow indeed to second guess a prosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct.” (Proulx v. Quebec (Attorney General), 2001 SCC 66, para 4). When I consider the evidence and the many arguments of the plaintiff, the essence of the plaintiff’s positions is that he disagrees with and second-guesses the Crown’s prosecutorial decisions. For example, the plaintiff argues that the Crown failed to consider that his vehicle was attacked, that he was prevented from leaving by bystanders, and that others were responsible for the chaotic situation, not just him, all instances of second guessing the prosecutor’s judgment calls.

[13] To establish malicious prosecution, the plaintiff must prove not only that proceedings were initiated against him and resolved in his favour, but he must also prove the absence of reasonable and probable grounds and that the Crown commenced or continued the prosecution for an improper purpose. Here, the evidentiary record on this motion establishes that there was sufficient evidence for the Crown to believe that guilt could probably be established, thereby failing to establish a reasonable possibility of the evidence meeting the high threshold of malice.

[14] The evidence of the civilian witnesses and of police officer Lafleur, if accepted by the court, could establish the elements of the offences charged. The plaintiff’s audio recording does not establish a reasonable possibility of success for the plaintiff, nor do his many other arguments. Moreover, the plaintiff has not established a reasonable possibility that malice will be proven. Negligence or poor judgment does not establish malice. Malice requires proof of a deliberate attempt to abuse the Office of the Attorney General. It is a high threshold, and the evidence of the plaintiff does not reveal a reasonable possibility of establishing malice or a reasonable possibility of proving improper purpose by the Crown.

[15] The plaintiff’s many arguments include that the Crown blindly relied on witnesses, colluded with the SIU to withhold the records, and failed in its McNeil obligations to disclose the SIU records. However, the SIU made no finding of misconduct against the police officers such that their records were not the subject of first party disclosure. Justice Kinsella properly recognized that these records were third-party records. Moreover, the Crown took no position on the O’Connor application. As well, the evidence establishes that the plaintiff was provided an opportunity to view the cell phone video of Ms. Lepage. As such, the plaintiff has not established a reasonable possibility of establishing that the Crown ignored or failed to assess evidence when developing reasonable grounds.

[16] The plaintiff’s many arguments are based on his interpretation of the evidence, but mere inferences based on a different interpretation of the evidence is not sufficient to prove malice. As well, the plaintiff’s alleged inconsistencies in the evidence go to credibility, they do not rise to establish a reasonable possibility of proving either malice or the absence of reasonable and probable grounds. For example, the inconsistency between officer Lafleur that the plaintiff waived his rights to counsel and the plaintiff’s recordings suggesting the contrary would go to credibility, as would the conflicting evidence between officer Lafleur and Ms. Trudel. Neither raises a reasonable possibility of establishing malice.

[17] Having failed to establish a reasonable possibility that his claims against the Crown would be resolved in his favour, the plaintiff’s motion is dismissed. It is not necessary for me to consider whether good faith has been established as both parts of the test are required and failing to establish one results in the motion being dismissed.

[18] Considering s. 17(10) of the CLPA, the other defendants are not employees or agents of the Crown nor can the Crown be vicariously liable for their actions. As well, none of the plaintiff’s claims against the Crown are based on allegations of bad faith respecting anything done in the exercise of the Crown’s duties or functions such that none of the claims against the Crown can be allowed to proceed.

[19] Consequently, the plaintiff’s motion for leave is dismissed with the result that this action is a nullity in respect of the Crown, His Majesty the King in Right of Ontario or, more properly labeled, the Attorney General of Ontario. Further, as per the CLPA, the stay is lifted with respect to the other defendants, other than the Crown, which in this case are all of the other defendants other than His Majesty the King in Right of Ontario or, more properly labeled, the Attorney General of Ontario.

Certificate of Transcript

FORM 3
Electronic Certificate of Transcript
Evidence Act, Subsection 5(2)

I, Elaine Paquette, certify that this document is a true and accurate transcript of the recording of R. v. Matthew Deveaux v. Ministry of Health et al. in the Superior Court of Justice held at 29 Second Street West, Cornwall, Ontario taken from Recording 3911-CR09-20250331-081214-10-ROGERP, which has been certified in Form 1 by Barbara Theoret.

April 1, 2025

Date
Elaine Paquette
ACT 8164250397
Ontario, Canada