|
Gordon Folland
Michael
Cardamone
| Adriaan
Mak
| Phil
Bourgelais
| Lessons
from the Proulx case | Michael
Jackson | Claudette Grieb
| Alain Andre
The Ontario government appealed
this to the Supreme Court. On October 2, even as Robert Borden
and Richard Klassen were using it as an authority in their malicious
prosecution case, the Supreme
Court dismissed Ontario's application. This now stands as
the law of the land. > > > Folland's
right to sue his lawyer affirmed
DATE: 20030327 DOCKET: C38528
COURT OF APPEAL FOR
ONTARIO O'CONNOR A.C.J.O., CATZMAN and WEILER JJ.A.
B E T W E E N : GORDON FOLLAND,
SHANNON FOLLAND and GEORGINA FOLLAND
Andrew Stein and John Carter,
for the appellants ) Plaintiffs(Appellants)- and -
HER MAJESTY THE QUEEN IN
RIGHT OF ONTARIO, THE ATTORNEY GENERAL OF ONTARIO, JOHN NIXON,
THE HAMILTON WENTWORTH POLICE SERVICES BOARD or THE HAMILTON
POLICE SERVICES BOARD or THE REGIONAL MUNICIPALITY OF HAMILTON
WENTWORTH POLICE SERVICES BOARD, MIKE ELEFTHERIOU, JOHN McNIVEN,
ALAN YATES, IAN MATHEWS, STEVE PACEY, STEPHEN WHITAKER, SHERRI
NICHOLSON, STEVEN KOVACH, DOUGLAS LANGDON and ALAN YATES
Elaine Atkinson, for the
respondents (Defendants)
Heard: January 14, 2003
Page: 2
On appeal from the order
of Justice J. David McCombs of the Superior Court of Justice
dated June 3, 2002.
WEILER J.A.:
The Issue
[1] Pursuant to a Rule 21.01
(1)(b) motion brought by the Crown, McCombs J. struck out those
portions of the appellants' amended statement of claim alleging
abuse of process, conspiracy to injure, and intentional infliction
of harm on the basis that they disclosed no reasonable cause
of action. The issue on this appeal is whether the motions judge
erred in striking those causes of action.
The History of the Action
[2] The criminal proceedings
giving rise to this action against the Crown are reported in
R. v. Folland (1999), 132 C.C.C. (3d) 14 (Ont. C.A.).
In brief, Folland was staying overnight at the home of a woman
and her house-mate Shawn Harris. The woman awakened in the night
to find that she was being sexually assaulted and she identified
Folland to police as the person who assaulted her. The police
charged Folland with sexual assault.
[3] Harris, who had had consensual
sex with the woman on some prior occasions, told one of the investigating
officers that he was the person who had had sex with the woman.
A few days later, he declined to give the police a signed statement.
[4] A pair of men's underwear
was found in the woman's bed. DNA testing prior to trial excluded
Folland as the donor of the semen found on the underwear. No
DNA samples were taken from Harris prior to trial. Although defence
counsel repeatedly pressed Crown counsel, in writing, to have
the police conduct a fuller investigation of Harris' role in
the affair and suggested to Crown counsel that he should call
Harris as a witness at the trial so that the full story would
be before the jury, Crown counsel refused to do either.
[5] Based on what Folland told
him, Folland's trial counsel originally intended to call Harris
as a defence witness but attempts to serve him with a subpoena
were not successful. Folland's trial counsel was given an opportunity
to apply for a material witness warrant but declined because
he had begun to doubt that Harris would confess and was concerned
that he would, instead, bolster the Crown's case by denying that
he had done anything to the woman. Folland was convicted of sexual
assault and sentenced to five years' imprisonment. After he had
served two and a half years of his sentence, Folland's friends
were able to obtain bodily samples from Harris and further DNA
testing indicated that the semen on the underwear found in the
woman's bed belonged to Harris. Page: 3 Folland's trial counsel
stated that had he had the new DNA evidence, he would have elected
to pursue the application for a material witness warrant.
[6] As a result of the fresh
evidence, the Court of Appeal allowed Folland's appeal and ordered
a new trial. The Court noted that had the sentence portion of
the appeal proceeded, the Crown had already agreed that the sentence
should be reduced to time served and suggested the Crown consider
whether it was in the public interest to proceed with the new
trial. Ultimately, the Crown elected not to proceed with a new
trial and requested that the charge be stayed.
[7] The appellants then sued
the Crown and the various police authorities alleging a number
of causes of action. The appellants alleged that Folland had
been maliciously prosecuted and that his ss. 7 and 11(d) rights
under the Charter had been breached. The Crown did not move to
strike these claims as disclosing no cause of action and the
motions judge ordered that they would stand. The appellants also
alleged malicious and negligent investigation, wrongful conviction
and wrongful incarceration. These causes of action were abandoned
at the hearing of the motion and were struck. There is no appeal
in respect of them.
[8] In relation to the causes
of action that are the subject of this appeal, namely, abuse
of process, conspiracy to injure and intentional infliction of
harm, the Crown's position was that the only common law tort
available against a Crown attorney for prosecutorial misconduct
was malicious prosecution.
[9] The motions judge agreed
and held that the claims were barred by virtue of the Supreme
Court of Canada's decisions in Nelles v. Ontario (1989),
60 D.L.R. (4th) 609 (S.C.C.) and Proulx v. Quebec ( Attorney
General) (2001), 206 D.L.R. (4th) 1 (S.C.C.). He stated:
On my reading of the authorities
in particular the decisions of the SCC in Proulx and Nelles,
it is in my view plain and obvious that there are no other causes
of action available to the plaintiffs against the Crown defendants.
In the result, the other causes of action are ordered struck
from the statement of claim.
General Principles Applicable
to all Rule 21.01(b) Motions
[10] As indicated by the motions
judge, before a cause of action in a statement of claim can be
struck out it must be "plain and obvious" that no cause
of action is disclosed: Hunt v. Carey Canada inc., [1990]
2 S.C.R. 959. Applying Hunt, supra, this court has held
that the burden on a defendant to strike a claim as disclosing
no reasonable cause of action is very high, and the court's power
to do so should be exercised "only in the clearest cases":
Temilini v. Ontario Provincial Police (Commissioner) (1990),
73 O.R. (2d) 664 (C.A.). For this reason the facts alleged in
the statement of claim are accepted as proven unless
Page: 4
they are patently ridiculous
or incapable of proof and the statement of claim is read generously
with allowance for inadequacies due to drafting deficiencies:
Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.). The novelty
of a cause of action is of no concern: Johnson v. Adamson
(1981), 34 O.R. (2d) 236 (C.A.) [Leave to appeal to the Supreme
Court of Canada refused (1982), 35 O.R. (2d) 64n].
[11] Importantly, matters of
law that have not been fully settled in the jurisprudence should
not be disposed of pursuant to Rule 21.01(1)(b): Nash, supra,
The analysis in this case is focussed on the last requirement.
Analysis
[12] A Crown attorney has broad
immunity against suits arising from the conduct of prosecutions.
Until the Nelles decision in 1989, a Crown attorney in
Ontario was considered to have absolute immunity respecting claims
arising from his or her conduct of a prosecution.
[13] In Nelles, the
Supreme Court of Canada held that in the interests of public
policy absolute immunity is not justified and the court carved
out an exception to the Crown's immunity in the case of malicious
prosecution. The Court emphasized that the exception to a Crown
attorney's immunity was narrow, in order to accommodate the competing
interests of encouraging public trust and confidence in the impartiality
of prosecutors, and of avoiding a chilling effect on prosecutors'
independence and exercise of discretion. At p. 639, the Court
identified the four elements which must be present in order to
establish the tort:
- 1. The proceedings must have
been initiated by the defendant;
- 2. The proceedings must have
been terminated in favour of the plaintiff;
- 3. There is an absence of
reasonable and probable cause; and
- 4. There is malice, or a primary
purpose other than that of carrying the law into effect.
[14] In Oniel v. Toronto
(Metropolitan) Police Force, [2001] O.J. No. 90 (C.A.), leave
to appeal to the Supreme Court dismissed at [2001] S.C.C.A. No.
121, this Court held that continuing a prosecution in
the absence of reasonable and probable grounds is capable of
giving rise to an inference of malice. Borins J.A. wrote (at
paras. 49-51): Although the prosecutor may have reasonable and
probable grounds to commence a prosecution, if the prosecutor
obtains information which suggests that the person probably did
not
Page: 5
commit the offence, the prosecutor
lacks reasonable and probable grounds to continue the
prosecution, and malice may be inferred.
Continuing the prosecution in the absence of an
honest belief in the appellant's guilt would be incompatible
with securing the ends of justice, and malice could be inferred
if the respondents continued the prosecution with reckless
indifference to the truth [emphasis added].
[15] See also Wilson v.
Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434
(S.C.J.), at para. 27 where Dambrot J. held that although a police
officer in Ontario typically makes a decision to initiate a prosecution
by swearing an information, a prosecutor who carries on a prosecution
maliciously may be sued for malicious prosecution regardless
of any involvement in the initiation of proceedings.
[16] The Supreme Court revisited
Nelles in the Proulx decision and, although the
Court disagreed on the result in that particular case, it unanimously
confirmed that Nelles remains the law: Proulx supra,
per majority at paras. 4, 9; per dissenting judgment
at para. 123
[17] The majority of the Court
in Proulx, at paras. 4, 8 and 9 began with the following
general comments about claims against Crown attorneys:
[4] Under our criminal justice
system, prosecutors are vested with extensive discretion and
decision-making authority to carry out their functions. Given
the importance of this role to the administration of justice,
courts should be very slow indeed to second-guess a Prosecutor's
judgment calls when assessing Crown liability for prosecutorial
misconduct. Nelles v. Ontario affirmed unequivocally the
public interest in setting the threshold for such liability very
high, so as to deter all but the most serious claims against
the prosecuting authorities, and to ensure that Crown liability
is engaged in only the most exceptional circumstances. Against
these vital considerations is the principle that the Ministry
of the Attorney General and its Prosecutors are not above the
law and must be held accountable. Individuals caught up in the
justice system must be protected from abuses of power. In part,
this accountability is achieved through the availability of a
civil action for malicious prosecution. .. Page: 6
[8] ... A failed prosecution
does not without more much more give rise to a viable
claim for prosecutorial wrongdoing.
[9] As we have noted above,
Nelles, set out four requirements that must be established on
a balance of probabilities by the claimant in an action in damages
based on prosecutorial misconduct in order to avoid the
Crown's relative immunity against such suits [emphasis added].
[18] As is seen in the excerpt
quoted above, the Court in Proulx, when confirming Nelles,
did not identify or limit the four requirements of Nelles
as being requirements of "malicious prosecution"
claims only. It identified those requirements as the necessary
elements of "an action in damages based on prosecutorial
misconduct." The term prosecutorial misconduct is a broad
term that could encompass more than malicious prosecution. The
only tort before the Court in Proulx, however, was the
tort of malicious prosecution.
[19] The Crown's position before
us is that the Proulx decision confirmed that where prosecutorial
misconduct is alleged the four requirements set out in Nelles
must always be proven. The Crown submits that the jurisprudence
is settled and there is no benefit to the appellants characterizing
their claims under a variety of labels because, if one of these
four elements is not proven, all of the common law torts will
fail.
[20] The appellants rely upon
Milgaard v. Kujawa (1994), 118 D.L.R. (4th) 653 (Sask.
C.A.) at 662-664 in which the Saskatchewan Court of Appeal suggested
that the categories of tort available against prosecutors were
not closed and that the torts of abuse of statutory power and
conspiracy to abuse statutory power might exist if actuated by
malice or other improper motive.
[21] In addition in R. v.
Cook (1997), 146 D.L.R. (4th) 437 (S.C.C.) at 445-446, L'Heureux
Dubé J., on behalf of the Court, affirmed, albeit in a
criminal context, that the improper exercise of prosecutorial
discretion can result in a finding of abuse of process. She added,
"This misconduct can take many forms, and will often engage
the rights set out in the Charter of Rights and Freedoms,
although the exact manner in which this occurs will depend
on the particular circumstances in the case: R. v. O'Connor,
[1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, 130 D.L.R. (4th)
235." A plaintiff in an abuse of process action does not
need to show that the proceedings terminated in his or her favour:
Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc. (1995),
23 O.R. (3d) 370 at 379 (Div. Ct.).
[22] It would appear, therefore,
that the jurisprudence is not fully settled as to whether the
four elements for the tort of malicious prosecution must always
be proven in every civil action against a prosecutor. It is also
not clear that, if the four elements are Page: 7 established,
a plaintiff is restricted to framing the action as one of malicious
prosecution rather than as one of conspiracy, abuse of process
or intentional infliction of harm. It may be that in some cases,
such as conspiracy, the rules relating to admissibility of evidence
would be of assistance to a plaintiff in establishing his or
her case.
[23] I also note that the purpose
of a Rule 21 motion is to bring finality to litigation that does
not disclose a cause of action at an early stage of the proceedings.
Here, the actions of malicious prosecution and for breach of
Charter rights have not been struck and will be going
on to trial in any event.
Conclusion
[24] It is inappropriate to
strike the claims for abuse of process, conspiracy to injure
and intentional infliction of harm at this stage of the proceedings
because the jurisprudence is not settled that the four requirements
of his action for malicious prosecution must always be proven
when a common law tort is alleged against the Crown. Accordingly,
I would allow the appeal, set aside the decision of the motions
judge and dismiss the motion to strike the claims indicated.
[25] I would reserve the costs
of the appeal and of the motion to the judge hearing the trial.
RELEASED: March 27, 2003
"D. O'C."
"K.M. Weiler J.A." "I agree Dennis O'Connor A.C.J.O."
"I agree M.A. Catzman J.A."
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell