



COURT OF APPEAL FOR ONTARIO

CITATION: Biladeau v. Ontario (Attorney General), 2014 ONCA
    848

DATE: 20141127

DOCKET: C57830

Juriansz, LaForme and Lauwers JJ.A.

BETWEEN

Bill Biladeau

Appellant

and

Ministry of the Attorney General

Respondent

Bill Biladeau, in person

Nadia Laeeque, for the respondent

Heard: September 19, 2014

On appeal from the order of Justice Morgan of the Superior
    Court of Justice, dated October 15, 2013.

H.S. LaForme J.A.:

I.        INTRODUCTION

[1]

The appellant, who has represented himself throughout these civil
    proceedings, commenced an action against The Attorney General of Ontario
[1]
alleging malicious prosecution and seeking damages for breach of
Charter
rights.
    Underlying this action is a criminal proceeding initiated against the appellant
    that ultimately terminated in his favour. At the appellants criminal trial,
    Crown counsel (not counsel on this appeal) commented on the appellants failure
    to testify. This appeal arises out of those comments.

[2]

The defendant  Ministry of the Attorney General (MAG)  brought a
    motion to strike the appellants statement of claim for failing to disclose a
    reasonable cause of action. On the first hearing of the motion, an adjournment was
    granted to allow the appellant to amend his claim. On the second hearing, the
    motion to strike the statement of claim was granted and the appellants claims
    were dismissed. This second decision is the subject of this appeal.

[3]

For the reasons that follow, I would allow the appeal and order that the
    appellant be given an opportunity to further amend his statement of claim in
    accordance with these reasons.

II.       BACKGROUND

[4]

In May 2007 the appellant was tried for sexual assault. He did not
    testify. The trial Crown began his closing address by cautioning the jury not
    [to] get mesmerized by reasonable doubt and that reasonable doubt is not a
    speculative doubt conjured up by a timid juror to escape his or her duty. He
    then twice observed that the complainants evidence stood uncontradicted.
    Finally, and most significantly, the trial Crown commented on the appellants
    failure to testify in reference to the appellants belief in consent: But he
    didnt testify, so he cant be asked directly what he thought at the time or
    what he construed or what he knew. The appellant was convicted.

[5]

On December 9, 2008, this court overturned the appellants conviction
    and ordered a new trial:
R. v. Biladeau
, 2008 ONCA 833,
    93 O.R. (3d) 365 (the conviction appeal). Sharpe J.A., writing for this
    court, concluded at para. 35: The comments of Crown counsel violated the
    appellants statutory right under   s. 4(6) of the
Canada Evidence Act
[and] prejudiced the appellants right to a fair trial. Ultimately, the Crown
    determined it would not proceed with a new trial.

[6]

In August 2011 the appellant commenced an action against MAG. He claimed
    damages for malicious prosecution, breach of professional conduct, and alleged
    that the conduct of the prosecution had breached his right to a fair trial as
    guaranteed by the
Charter of Rights and Freedoms
.

[7]

MAG brought a motion under rule 21 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 to strike the appellants claim for failing to disclose a
    reasonable cause of action. On the first hearing of the respondents motion on
    October 19, 2012, the motion judge granted an adjournment to allow the
    appellant to amend his statement of claim. The motion judge advised the
    appellant that he must plead facts from which an inference of malice may
    arise, and that [o]rdinarily, a reversible error in a Crowns closing
    argument would not be sufficient for that purpose.

[8]

On October 15, 2013, the appellants amended statement of claim was
    struck out and his action was dismissed. In his brief handwritten endorsement,
    the motion judge found that the amended claim still did not meet the test for
    malicious prosecution. Specifically, the motion judge found that the claim was
    deficient in pleading two essential ingredients of the tort of malicious
    prosecution: malice, and an absence of reasonable and probable grounds to initiate
    the prosecution.

[9]

The motion judge noted: [The appellants claim] does not provide any
    material facts supporting the claim of malice; in fact, it does not even make
    mention of the Plaintiffs view that the prosecutors actions in leading to the
    erroneous conviction were intentional. He also noted:

The one fact that the claim now adds is that the prosecutor had
    over 10 years experience.  The plaintiff says, in effect, that it goes without
    saying that his error to the jury must have been malicious. Such an experienced
    prosecutor, the plaintiff contends, could not have otherwise made such a
    mistake.

[10]

The
    motion judge made no reference to the appellants
Charter
damages
    claim.

[11]

On
    this appeal, the appellant argues that the facts he pled support his
    allegations of malicious prosecution and breach of
Charter
rights.
    According to the appellant, these facts describe the experience of the trial
    Crown, which in turn shows that any missteps were more likely to be deliberate
    than accidental. These facts therefore show Crown counsels intention, facing
    evidence that favoured the defence, to obtain a guilty verdict through
    knowingly improperly commenting on the appellants failure to testify or to
    avoid an acquittal by causing a mistrial.

[12]

I
    agree with the appellant. Although the amended statement of claim suffers from
    drafting deficiencies  as one might expect from a self-represented litigant
    without any legal training  when read generously and having due allowance for the
    deficiencies, it is not plain and obvious that no reasonable causes of action are
    disclosed:
Hunt v. T & N plc
, [1990] 2 S.C.R. 959, at p. 980.  I
    expand below.

III.      ISSUES

[13]

From
    the appellants notice of appeal and his oral submissions, I believe this
    appeal turns on the answers to two questions:

(1) Were there
    sufficient facts pled to support a claim for malicious prosecution, keeping in
    mind the test applied on a rule 21 motion?

(2) Did the
    motion judge consider the appellants claim for
Charter
damages and,
    in any case, are the elements of the
Charter
damages claim similar to
    the elements of malicious prosecution?

[14]

Finally,
    if this court concludes that additional facts are required in the appellants
    pleadings, the appellant requests a further opportunity to amend his claim.

IV.     ANALYSIS

[15]

The
    motion judge in this case was ruling on a self-represented plaintiffs second
    attempt to plead the complex private law tort of malicious prosecution and the
    public law claim for
Charter
damages. The burden on the moving party
    under rule 21.01 is significant. To succeed, MAG must demonstrate that neither
    claim has a chance of succeeding; indeed, that the claims are certain to fail. 
    Put another way: is it plain and obvious that no reasonable cause of action is
    disclosed? At this preliminary stage, the alleged facts are to be taken as true
    and the statement of claim is to be read as generously as possible with a view
    to accommodating any inadequacies in the allegations: see
Guergis v. Novak
,
    2013 ONCA 449, at paras. 35-36.

[16]

The
    motion judge was satisfied that MAG discharged its heavy burden.      I
    respectfully disagree. I examine the motion judges conclusions about malicious
    prosecution before addressing the appellants
Charter
damages claim.

(i)

Malicious Prosecution

[17]

The
    tort of malicious prosecution has four elements, namely, that the proceedings
    must have been: (1) initiated by the defendant; (2) terminated in favour
    of the plaintiff; (3) undertaken without reasonable and probable cause to
    commence or continue the prosecution; and (4) motivated by malice or a primary
    purpose other than that of carrying the law into effect: see
Nelles v.
    Ontario
, [1989] 2 S.C.R. 170, at pp. 192-194; see also
Miazga v.
    Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 3. Only the
    third and fourth elements are at issue in this appeal.

[18]

The third element in a malicious prosecution claim is focused on
    the trial Crowns decision to initiate or continue with a criminal
    prosecution. This decision is one of the core elements of prosecutorial
    discretion, and is beyond the legitimate reach of the court unless a Crown
    prosecutor steps out of his or her role as minister of justice:
Miazga
, at paras. 6-7.

[19]

A description of the Crowns role as minister of justice that is
    often cited in our jurisprudence is found in
Boucher v. The Queen
,
    [1955] S.C.R. 16, at pp. 23-24:

It cannot be over‑emphasized that
    the purpose of a criminal prosecution is not to obtain a conviction
, it
    is to lay before a jury what the Crown considers to be credible evidence
    relevant to what is alleged to be a crime. Counsel have a duty to see that all
    available legal proof of the facts is presented: it should be done firmly and
    pressed to its legitimate strength but
it must also be
    done fairly
.
The role of prosecutor excludes
    any notion of winning or losing
; his function is a matter of public
    duty than which in civil life there can be none charged with greater personal
    responsibility. It is to be efficiently performed with an ingrained sense of
    the dignity, the seriousness and the justness of judicial proceedings.
    [Emphasis added.]

[20]

In
R. v. Trochym
, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 79, the
    Supreme Court added the following comment on the role of Crown counsel:

Crown counsel are expected to present, fully and diligently,
    all the material facts that have evidentiary value, as well as all the proper
    inferences that may reasonably be drawn from those facts.
However, it is not the Crowns function to persuade a jury to
    convict other than by reason
:
R. v. Proctor
(1992), 11 C.R.
    (4th) 200 (Man. C.A.), at para. 59.
Rhetorical techniques
    that distort the fact-finding process, and misleading and highly prejudicial
    statements, have no place in a criminal prosecution
. [Emphasis added.]

[21]

The
    fourth element in a malicious prosecution claim  that the proceedings were
    motivated by malice  requires that the trial Crown commenced or continued the
    prosecution with a purpose inconsistent with his or her role as a minister of
    justice:
Miazga
, at para. 89
.

[22]

The
    question before the motion judge, therefore, was whether there was a sufficient
    factual foundation in the pleadings to indicate that the Crown proceeded to
    prosecute the appellant without reasonable or probable cause for success, and
    that the Crown acted with malice in doing so.  A perfect pleading is not
    required.

(a)     Relevant pleadings in the amended claim

[23]

The
    appellants pleadings enumerate facts that I believe are considerably more
    important to the malice element of malicious prosecution than the motion judge appears
    to have appreciated. The following are excerpts from the appellants amended
    statement of claim, the first two of which are critical comments and findings
    of Sharpe J.A. in his reasons for decision in the conviction appeal:

·

[The trial Crowns] reference to timid juror in the face of a
    clear warning from this court in [
R. v. Karthiresu
(2000), 129 O.A.C.
    291], when read with the comment on the appellants failure to testify,
    suggests that Crown counsel may well have been flirting with danger and
    deliberately testing the outer limits of what is permissible: p. 5 of Amended
    Statement of Claim, quoting para. 33 of conviction appeal.

·

[In my view], the comments in the case at bar cannot be excused
    as ambiguous or off-hand.  Rather, they appear to have been part of a
    carefully structured closing address that pointedly drew the attention of the
    jury to the fact that the accused did not take the stand.  If the Crowns
    closing address did not do so explicitly, it strongly implied that the jury
    could and should infer that the appellants silence and his refusal to expose
    himself to cross-examination were indicia of his guilt: p. 5 of Amended
    Statement of Claim, quoting para. 31 of conviction appeal.

·

The Crown prosecutor had more than ten years experience at the
    time of trial. The Prosecutor said to my lawyer at the time that he studied his
    closing that night which will show knowledge of the law and information: p. 5
    of Amended Statement of Claim.

[24]

I
    now turn to analyzing how the appellants pleadings map onto the third and
    fourth elements of malicious prosecution.

(b)     Third element  reasonable or probable
    grounds

[25]

The
    motion judge observed that there was nothing in the conviction appeal to
    suggest that the Crown had no grounds on which to proceed with the prosecution
    in the first place.  The third element of the tort, however, requires that the
    Crown have reasonable or probable cause to both commence and
continue
the prosecution. It appears that the motion judge believed he only had to
    consider the Crowns cause to commence the prosecution.

[26]

It
    is true that the appellants pleadings make no reference to facts that support
    an allegation that the trial Crown had no reasonable cause to continue the
    prosecution.
[2]
However, the record in this case suggests that there are facts that the
    appellant could plead in support of this third element. For example, Sharpe
    J.A. makes several findings and observations in the conviction appeal on this
    issue, including:

·

The complainants evidence that she experienced vaginal bleeding
    after the incident was not corroborated by the evidence of the nurse who
    treated her: para. 9 of conviction appeal.

·

The complainants evidence was challenged and the Crowns case
    was not overwhelming: para. 35 of conviction appeal.

[27]

The
    trial transcript reveals that the presence of blood on the complainants
    underwear was also not confirmed by the DNA expert, who testified she saw no
    blood when she examined the garment.

[28]

In
    oral argument before this court the appellant alleged that the Crown knew the
    case was lost but persisted with the prosecution. He submitted that at this
    preliminary stage, an inference can be made

that the Crown had no
    reasonable grounds to proceed with the prosecution for two reasons. First, he
    points out that the nurse and the DNA expert contradicted the complainant at
    trial. Second, he says that following his successful conviction appeal, the
    Crown dropped the case after the appellant rejected what the Crown allegedly
    described as the deal of a lifetime.

[29]

The
    appellant argues that the Crowns offers  and the eventual abandonment of the
    case  show that the Crown knew it had a weak case against him, particularly
    when combined with Sharpe J.A.s comment that the Crowns case was not
    overwhelming. These facts, he says, demonstrate that the Crown did not have
    reasonable or probable cause to commence or continue the prosecution.

[30]

I
    agree with the appellant. In my view, had these facts been pleaded, had they
    been taken as being true, and had the claim been read as generously as possible
    with any inadequacies in the allegations being accommodated, I am satisfied
    that these facts would have been sufficient to survive the Crowns rule 21
    motion in connection with the third element.

[31]

Given
    the motion judges apparent narrow view of the requirements of the third
    element, I would grant the appellant leave to further amend his statement of
    claim to conform to these reasons.

(c)     Fourth element  malice

[32]

In
    analyzing this final element of the tort, the motion judge was required to
    generously read the appellants claim to determine whether it is plain and
    obvious that the appellants allegation of malice would fail. In other words, is
    it plain and obvious that the pleaded facts fail to indicate that the trial
    Crown commenced or continued the prosecution of the appellant with a purpose
    inconsistent with his or her role as a minister of justice? Contrary to the
    opinion of the motion judge, in my view, it is not plain and obvious that the
    facts underpinning the appellants allegations of malice are deficient in this
    regard.

[33]

The
    motion judge found that the appellants amended pleadings did not meet the
    test. As mentioned above, in his view, [the appellants claim] does not
    provide any material facts supporting the claim of malice; in fact, it does not
    even make mention of the Plaintiffs view that the prosecutors actions in
    leading to the erroneous conviction were intentional.  I disagree.  Had the
    motion judge read the claim generously and accommodated the drafting
    deficiencies, he would have arrived at a different conclusion.

[34]

By
    including Sharpe J.A.s findings and comments from paras. 31 and 33 of the
    conviction appeal, set out above, a generous reading of the appellants claim discloses
    that the appellant was attempting to demonstrate that the experienced trial Crowns
    actions were neither negligent nor mere mistakes; rather, these actions were wilful
    and intentional. That is to say, the more experience one has, the more likely one
    understands fully the relevant law. As the appellant writes in his notice of
    appeal: The evidence shows [trial Crowns] intention to get a guilty verdict
    with his closing address to the jury and not follow the law.

[35]

The
    appellants pleadings allow for the inference to be made that the trial Crown
    may have been motivated by the improper purpose of getting a conviction at all
    costs, or that he may have been attempting to get a mistrial.

[36]

The
    passages from Sharpe J.A.s reasons contained in the appellants claim
    illustrate that the trial Crown employed misleading and highly prejudicial
    statements and [r]hetorical techniques that distort[ed] the fact-finding
    process:
Trochym
, at para. 79.  A trial Crown  a minister of justice
     who relies on such dubious strategies may be motivated by an improper
    purpose. For example, it would be an improper purpose to use these strategies to
    persuade a jury to convict other than by reason:
Trochym
, at para.
    79. The appellants pleadings read generously allow for this inference.

[37]

I
    would allow this ground of appeal.

II.
Charter
Damages Claim

[38]

The
    appellants pleadings in support of his claim for
Charter
damages is
    limited to the fact that the trial Crown commented on his failure to testify at
    trial.  His claim is that his s. 11
Charter
right to a fair trial was
    breached and that as a result he suffered damages under s. 24(1) of the
Charter
    of Rights and Freedoms
. The motion judge made no mention of this issue in
    his reasons for decision in which he ordered the appellants entire statement
    of claim struck out.

[39]

Section
    24(1) of the
Charter
authorizes a court to award constitutional
    damages to individuals for
Charter
infringements where appropriate
    and just:
Vancouver (City) v. Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28, at
    para. 4. To determine what is appropriate and just in a given case, the court
    in
Ward
articulated a four-part approach. These four steps can be
    paraphrased as follows:

First, determine that there has been a
Charter
breach.

Second, determine whether damages are a just and appropriate
    remedy. In doing so, consider whether damages would fulfill any of the related
    functions: compensation for loss, vindication of the right, or the deterrence
    of future breaches.

Third, determine whether the state has established that other
    countervailing considerations render damages inappropriate or unjust.

Fourth, assess the quantum of the damages.

[40]

In
Ward
, when addressing the requirement that damages be appropriate and
    just, the court used malicious prosecution as an example, and at para. 43 stated:
    When appropriate, private law thresholds and defences may offer guidance in
    determining whether s. 24(1) damages would be appropriate and just.

[41]

Although
    authority on awarding
Charter
damages is relatively recent, it seems
    clear that when it comes to malicious prosecution, there is a high degree of
    overlap between the elements of the tort and a corresponding claim for
Charter
damages. The precise extent of the overlap is unclear; however, malice appears
    to be an integral component of both actions. Accordingly, the facts alleged by
    the appellant in regard to the tort of malicious prosecution appear to be
    equally applicable to the appellants corresponding claim for
Charter
damages: see
Forrest v. Kirkland
, 2012 ONSC 429, 296 O.A.C. 244 (Div.
    Ct.) at para. 62; see also
Henry v. British Columbia (Attorney General)
,
    2014 BCCA 15; 370 D.L.R. (4th) 742, leave to appeal to S.C.C. granted, 35745 (May
    15, 2014).

[42]

Therefore,
    the bar that the appellant will have to overcome for his
Charter
damages
    claim is at least as high as the bar he must surmount for a private law
    malicious prosecution action. However, as with his claim for malicious
    prosecution, the appellant is merely at the pleadings stage and is only required
    to plead facts sufficient to show that it is not plain and obvious that no
    reasonable cause of action is disclosed.

[43]

As
    mentioned above, the appellants pleadings referencing paras. 31 and 33 of the
    conviction appeal allow the inference to be drawn that the experienced trial Crowns
    actions were wilful and intentional, and carried out for an improper purpose.
    My reasons for allowing the appeal in regards to the malice requirement of
    malicious prosecution apply equally to the
Charter
damages claim. Further,
    in the absence of any explanation in his endorsement, it is difficult to
    discern why the motion judge struck this part of the appellants claim.

[44]

Although
    it may not be strictly necessary for the appellant to repeat the relevant facts
    under both claims, his pleadings should at least make it clear that he relies
    on the same facts to support both his malicious prosecution claim and his
Charter
damages claim. Accordingly, I would grant the appellant leave to amend his
    pleadings to accord with these reasons.

V.      DISPOSITION

[45]

For
    these reasons, I would allow the appeal and set aside the motion judges order.
    I would order that the self-represented appellant be granted leave to further
    amend his amended statement of claim in accordance with these reasons. Lastly, as
    neither party sought costs on this appeal, I would order there be no costs
    awarded.

Released: HSL  November 27, 2014


H.S. LaForme J.A.


"I
    agree. R.G. Juriansz J.A.
"


"I
    agree. P. Lauwers J.A.
"





[1]

Although the defendant is improperly named in the style of
    cause, this has not been made an issue in these proceedings.



[2]
The motion judge who granted the appellant an adjournment to amend his
    statement of claim after the first hearing of the motion on October 19, 2012
    only referenced the malice element in his brief endorsement. The endorsement
    was silent on the reasonable or probable grounds element of the tort.


