



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Henry v. British Columbia (Attorney General),









2014 BCCA 15




Date: 20140121

Docket: CA040901

Between:

Ivan William
Mervin Henry

Respondent

(Plaintiff)

And

Her Majesty the
Queen in Right of the Province of British Columbia,
as represented by the Attorney General of British Columbia

Appellant

(Defendant)

And

City of Vancouver,
William Harkema, Marilyn Sims, Bruce Campbell,
and Attorney General of Canada

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Hall

The Honourable Madam Justice MacKenzie

The Honourable Madam Justice Stromberg-Stein




On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 18, 2013 (
Henry v. British Columbia (Attorney General)
, 2013
BCSC 665,
Vancouver Docket S114405).




Counsel for the Appellant - Her Majesty the Queen in Right
  of the Province of BC:



Peter Juk, Q.C.
& Karen Horsman





Counsel for the Respondent - Ivan Henry:



A. Cameron Ward
& M. Sandford





Counsel for the Respondent - Attorney General of Canada:



Mitchell R. Taylor,
  Q.C.
& Susanne G. Pereira





Place and Date of Hearing:



Vancouver,
  British Columbia

December
  12 & 13, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2014









Written Reasons by:





The Honourable Mr. Justice Hall





Concurred in by:





The Honourable Madam Justice MacKenzie

The Honourable Madam Justice Stromberg-Stein








Summary:

Plaintiff sought an
amendment to pleadings concerning Charter damages for alleged non-disclosure by
prosecutors.  HMTQs appeal from an order that permitted an amendment alleging
a marked and unacceptable departure from the reasonable standards expected of
Crown counsel in the Respondents pleadings is allowed. As amended, the
pleadings allege a cause of action against a prosecutor for activity analogous
to gross negligence. The Supreme Court of Canada in Nelles v. Ontario, [1989] 2
S.C.R. 170, Proulx v. Québec (Attorney General), 2001 SCC 66, and Miazga v.
Kvello Estate, 2009 SCC 51, denied liability against those in a prosecutorial
role for anything less than malicious prosecution. This was not altered by the
Supreme Court of Canadas decision in Vancouver (City) v. Ward, 2010 SCC 27,
which dealt with Charter damages. The principles enunciated in authorities
concerning the award of criminal costs are not applicable to the present case.






Reasons
for Judgment of the Honourable Mr. Justice Hall:

[1]

This is an appeal from a decision of Goepel J. (as he was then)
pronounced on April 18, 2013, which allowed the plaintiffs application to
amend his pleadings.  The application to amend arose out of a previous decision
decided September 24, 2012.  Some of the amendments were of a
housekeeping nature and not contentious.  The dispute arose from
para. 120 of the amendments sought.  The judge described the background
thus:

[7]        In
Henry No. 1
, the Province applied
to strike certain paragraphs of the notice of civil claim and dismiss the claim
against the Province for damages for negligence and breach of
Charter
rights. In
Henry No. 1
, I dismissed Mr. Henrys claim in
negligence. In regard to the application to dismiss the claim for breach of
Charter
rights, I found that the
Charter
allegations were founded upon
allegations of malicious conduct and given that finding, that it was not
appropriate to strike the paragraphs alleging a breach of the plaintiffs
Charter
rights. At para. 72, I said:

If the plaintiff intends to argue
at the trial of this matter that it is entitled to
Charter
damages
against the Province absent a finding that the acts of the prosecutors were
done maliciously, he will have to apply for leave to amend his pleadings to
make such an allegation.

[8]        The plaintiff has now
so applied. The Province opposes the application and argues it does not
disclose a cause of action because absent malice, no claim lies against Crown
counsel for
Charter
damages. The City and Canada took no position on the
proposed amendments.

[2]

Ultimately, the judge allowed the plaintiff to amend his pleading to
include the following allegation:

The various acts and omissions
that violated the Plaintiffs right to disclosure and/or his right to full
answer and defence and/or his right to a fair trial, as described in paragraphs 113-119
above, were a marked and unacceptable departure from the reasonable standards
expected of the Crown counsel.

[3]

The appellant, Her Majesty the Queen in Right of the Province of British
Columbia, as represented by the Attorney General of British Columbia (HMTQ),
appeals from the decision of Goepel J. to allow this amendment.  The
appellant submits that the judge erred in permitting the appellant to seek
relief against prosecutorial actors for conduct that is less than malicious:
namely, for acts more akin to negligence.  The Attorney General of Canada,
another named defendant, supports HMTQs submissions.

[4]

The appellant submits that lowering the bar from malicious conduct to a
species of negligent conduct would have a deleterious effect on the
administration of justice.  It puts it this way in its factum:

86.        As a
practical reality, individuals exercising judicial and quasi-judicial functions
(judges, prosecutors, securities regulators) do not face personal liability for
negligent acts in the course of their duties  they are inevitably indemnified
by government.  Reference to fear of personal liability in the relevant case
law is a shorthand for concerns with allowing prosecutors to be brought into a
civil action for a virtual re-trial of the criminal trial after the fact;
inviting a civil court to second-guess decisions made along the way; and the
impact all of this has on a prosecutors professional reputation and
integrity.  These are concerns not because a Crown prosecutor will have to pay
a damage award out of his or her own pocket, but because of the influence such
a process will have on the prosecutors constitutional independence, freedom of
action, decision-making in the course of a criminal trial, and on the on-going
performance of prosecutorial duties.

[5]

In the U.S., the immunity of prosecutors from
civil action arising out of the performance of prosecutors of prosecutorial
duties is well nigh absolute:
Imbler v. Pachtman
, 424 U.S. 409 (1976), 96
S. Ct. 984, and
Fields v. Wharrie
, 672 F (3d) 505 (2012).  In Canada a different
route has been hitherto pursued:
Nelles v. Ontario
, [1989] 2 S.C.R.
170, 60 D.L.R. (4th) 609, and
Miazga v. Kvello Estate
, 2009 SCC 51,
[2009] 3 S.C.R. 339.

[6]

The respondent submits that more recent
authority, including the case of
Vancouver (City) v. Ward
, 2010 SCC 27,
[2010] 2 S.C.R. 28, is supportive of change along the lines indicated in the
amendment ordered by the chambers judge.  The respondent submits that the
essence of his case against the prosecutors (for whose actions HMTQ accepts
responsibility) is based on non-disclosure of relevant material during the
course of the prosecution.  He submits in his factum that some diminution of
the scope of prosecutorial immunity is warranted:

86.       In his ruling that the competing
interests could be appropriately balanced if the claimant were required to
prove, in order for a claim to lie against the Province for
Charter
damages, that the Crown acted in a manner that was a marked and unacceptable
departure from the reasonable standards expected of Crown counsel,
Goepel J. set a high threshold of gravity for conduct capable of
attracting liability.  In so doing he balanced the competing interests, gave
weight to the good governance concerns of the appellant, and crafted a
threshold that allowed for the development of this important area of law in a
manner consistent with
Ward
, with s. 24(1) jurisprudence, and with
the Supreme Court of Canadas urgings that the law develop in a manner
consistent with an appreciation of the need to hold the state responsible for
wrongful convictions that lead to very serious harm.

87.       It is
submitted that the test Goepel J. crafted represents a perfect balancing
of the competing interests, in that it limits potential litigation to just
those rare and serious cases, such as the appellants, in which Crown conduct
is markedly at odds with what it should be, serious
Charter
breaches
result, and very substantial harm is suffered.

[7]

As Lamer J. (as he then was), writing for
himself, Dickson C.J. and Wilson J., observed in
Nelles
,
supra
,
the action for malicious prosecution has ancient roots.  It was a remedy
invoked more often in the era when most prosecutions were instigated and
carried through by private interests.  In order to succeed, a plaintiff was
required to establish that the proceedings were initiated by the defendant,
that the proceedings terminated in favour of the plaintiff, the absence of
reasonable and probable cause and the existence of malice.  Malice was to be
inferred when it appeared the proceedings had been conducted for other than the
legitimate purpose of enforcing the law.

[8]

In the modern era of mostly public prosecutions,
there has been less occasion for and less likelihood of such proceedings.  The
reasons why this is so can be discerned from the modern prosecutors role. 
Lamer J. said this at 191-192 of
Nelles
:


As regards the proper role of the
[page 192] Crown Attorney, perhaps no more often quoted statement is that
of Rand J. in
Boucher v. The Queen
, [1955] S.C.R. 16, at p. 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.

[9]

The quoted comments of Rand J. are
reflected in the aphorism that The Crown never wins and the Crown never
loses.  The ideal should be that the prosecutor acts as a minister of
justice.  Of course, such an ideal situation may not always be observed or
attained.

[10]

In
Imbler
, a majority of the U.S. Supreme
Court held in favour of absolute immunity of prosecutors engaged in a criminal
trial.
Imbler
was a civil rights action under 42 U.S.C. 1983, by a
person who had successfully appealed from a homicide conviction.  It appeared
from the record that the prosecutor defendant had acted in an improper fashion
by adducing evidence known to be suspect.  Powell J. for the majority said
this in the course of his opinion at 422-424:

The common-law immunity of a prosecutor is
based upon the same considerations that underlie the common-law immunities of
judges and grand jurors acting within the scope of their duties. These include
concern that harassment by unfounded litigation would cause a deflection of the
prosecutors energies from his public duties, and the possibility that he would
shade his decisions instead of exercising the independence of judgment required
by his public trust. One court expressed both considerations as follows:

The office of public prosecutor is one which
must be administered with courage and independence. Yet how can this be if the
prosecutor is made subject to suit by those whom he accuses and fails to
convict? To allow this would open the way for unlimited harassment and
embarrassment of the most conscientious officials by those who would profit
thereby. There would be involved in every case the possible consequences of a
failure to obtain a conviction. There would always be a question of possible
civil action in case the prosecutor saw fit to move dismissal of the case. ...
The apprehension of such consequences would tend toward great uneasiness and
toward weakening the fearless and impartial policy which should characterize
the administration of this office. The work of the prosecutor would thus be
impeded, and we would have moved away from the desired objective of stricter and
fairer law enforcement.
Pearson v. Reed
, 6 Cal. App. 2d 277, 287, 44 P.
2d 592, 597 (1935).

See also
Yaselli v. Goff
, 12 F.2d, at
404-406.

20  The immunity
of a judge for acts within his jurisdiction has roots extending to the earliest
days of the common law.  See
Floyd v. Barker
, 12 Coke 23, 77 Eng. Rep.
1305 (1608). Chancellor Kent traced some of its history in
Yates v. Lansing
,
5 Johns. 282 (N.Y. 1810), and this Court accepted the rule of judicial immunity
in
Bradley v. Fisher
, 13 Wall. 335 (1872). See n. 12,
supra
.
The immunity of grand jurors, an almost equally venerable common-law tenet, see
Floyd v. Barker, supra
, also has been adopted in this country.  See,
e.g.,
Turpen v. Booth
, 56 Cal. 65 (1880);
Hunter v. Mathis
, 40
Ind. 356 (1872). Courts that have extended the same immunity to the prosecutor
have sometimes remarked on the fact that all three officials  judge, grand
juror, and prosecutor  exercise a discretionary judgment on the basis of
evidence presented to them.
Smith v. Parman, supra, Watts v. Gerking
,
supra
.
It is the functional comparability of their judgments to those of the judge that
has resulted in both grand jurors and prosecutors being referred to as
quasi-judicial officers, and their immunities being termed quasi-judicial
as well. See e.g.,
Turpen v. Booth, supra
, at 69;
Watts v.
Gerking, supra
, at 661, 228 P., at 138.

The common-law rule
of immunity is thus well settled. We now must determine whether the same
considerations of public policy that underlie the common-law rule likewise
countenance absolute immunity under § 1983. We think they do.

[11]

Powell J. went on to observe at 428:

[W]
e find ourselves
in agreement with Judge Learned Hand, who wrote of the prosecutors immunity
from actions for malicious prosecution:

As is so often the case, the answer must be
found in a balance between the evils inevitable in either alternative. In this
instance it has been thought in the end better to leave unredressed the wrongs
done by dishonest officers than to subject those who try to do their duty to
the constant dread of retaliation.
Gregoire v. Biddle
, 177 F.2d 579,
581 (C.A.2 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363
(1950).

[12]

It was in response to submissions based on this
line of U.S. authority that Lamer J. observed in
Nelles
at 195-197:

It is said by those in favour of absolute
immunity that the rule encourages public trust and confidence in the
impartiality of prosecutors. However, it seems to me that public confidence in
the office of a public prosecutor suffers greatly when the person who is in a
position of knowledge in respect of the constitutional and legal impact of his
conduct is shielded from civil liability when he abuses the process through a
malicious prosecution. The existence of an absolute immunity strikes at the
very principle of equality under the law and is especially alarming when the
wrong has been committed by a person who should be held to the highest
standards of conduct in exercising a public trust. (See Filosa, op. cit., at p. 982,
and Marilyn L. Pilkington, Damages as a Remedy for Infringement of the
Canadian Charter of Rights and Freedoms (1984), 62
Can. Bar. Rev.
517,
at pp. 560-61.)

Regard must also be had for the victim of
the malicious prosecution. The fundamental flaw with an absolute immunity for
prosecutors is that the wrongdoer cannot be held accountable by the victim
through the legal process. As I have stated earlier, the plaintiff in a
malicious prosecution suit bears a formidable burden of proof and in those
cases where a case can be made out, the plaintiffs
Charter
rights may
have been infringed as well. Granting an absolute immunity to prosecutors is
akin to granting a license to subvert individual rights. Not only does absolute
immunity negate a private right of action, but in addition, it seems to me, it
may be that it would effectively bar the seeking of a remedy pursuant to s. 24(1)
of the
Charter
. It seems clear that in using his office to maliciously
prosecute an accused, the prosecutor would be depriving an individual of the
right to liberty and security of the person in a manner that does not accord
with the principles of fundamental justice. Such an individual would normally
have the right under s. 24(1) of the
Charter
to apply to a court of
competent jurisdiction to obtain a remedy that the court considers appropriate
and just if he can establish that one of his
Charter
rights has been
infringed. The question arises then, whether s. 24(1) of the
Charter
confers a right to an individual to seek a remedy from a competent court. In my
view it does. When a person can demonstrate that one of his
Charter
rights has been infringed, access to a court of competent jurisdiction to seek
a remedy is essential for the vindication of a constitutional wrong. To create
a right without a remedy is antithetical to one of the purposes of the
Charter
which surely is to allow courts to fashion remedies when
constitutional infringements occur. Whether or not a common law or statutory
rule can constitutionally have the effect of excluding the courts from granting
the just and appropriate remedy, their most meaningful function under the
Charter
, does not have to be decided in this appeal. It is, in any case,
clear that such a result is undesirable and provides a compelling underlying
reason for finding that the common law itself does not mandate absolute
immunity.

It is also said
in favour of absolute immunity that anything less would act as a chilling
effect on the Crown Attorneys exercise of discretion. It should be noted that
what is at issue here is not the exercise of a prosecutors discretion within
the proper sphere of prosecutorial activity as defined by his role as a minister
of justice. Rather, in cases of malicious prosecution we are dealing with
allegations of misuse and abuse of the criminal process and of the office of
the Crown Attorney. We are not dealing with merely second-guessing a Crown
Attorneys judgment in the prosecution of a case but rather with the deliberate
and malicious use of the office for ends that are improper and inconsistent
with the traditional prosecutorial function.

[13]

Lamer J. ultimately concluded for reasons
of public policy that absolute immunity for prosecutors should not be the rule
in Canada.  He expressed his conclusion thus at 199:

There is no
doubt that the policy considerations in favour of absolute immunity have some
merit. But in my view those considerations must give way to the right of a
private citizen to seek a remedy when the prosecutor acts maliciously in fraud
of his duties with the result that he causes damage to the victim. In my view
the inherent difficulty in proving a case of malicious prosecution combined
with the mechanisms available within the system of civil procedure to weed out
meritless claims is sufficient to ensure that the Attorney General and Crown
Attorneys will not be hindered in the proper execution of their important
public duties.

[14]

In
Nelles
, McIntyre J. concurred in
the result but preferred to base his decision on the consideration that it
would not be appropriate to decide this issue on a pre-trial motion. 
La Forest J. also concurred in the result but left open
Charter
implications to be considered when required.  LHeureux-Dub
é J.
dissented and would have opted for the rule of absolute immunity in effect in
the U.S.

[15]

The result in
Nelles
was to preserve a plaintiffs ability
to seek damages against a prosecutor for abuse of process or malicious
prosecution if a prosecutor intentionally acted to subvert justice.  The case
of
Proulx v. Québec  (Attorney General)
, 2001 SCC 66, [2001] 3 S.C.R. 9,
of which more will be said later, is an illustration of a situation in which a
plaintiff successfully sued a Crown attorney for such conduct.  In
Miazga
,
the subject of prosecutorial responsibility was revisited.  The background of
Miazga
is succinctly set forth in a portion of the headnote:

Three children
made allegations of sexual assault against their biological parents, their
mothers boyfriend and the respondents, who were the childrens foster parents
and members of the foster parents extended family. Charges were subsequently
laid and M, a provincial Crown attorney, prosecuted the case against the
parents and the mothers boyfriend. All three were convicted, and the
convictions were upheld by the Court of Appeal. The Supreme Court of Canada
overturned the convictions, but concluded that the evidence of the children was
sufficient to order new trials against the parents. Meanwhile, taking under
advisement the trial judges comments urging that the children not be made to
endure another criminal proceeding, M negotiated a plea bargain with one of the
accused (who is not a respondent in this case). The charges against the
respondents were stayed. Some years later, all three children recanted their
allegations against the respondents. The respondents commenced a civil suit for
malicious prosecution against a number of individuals involved in the
proceedings against them, including M.

[16]

The plaintiffs succeeded at trial in their action
and the decision was sustained by a majority in the Saskatchewan Court of
Appeal.  On further appeal to the Supreme Court of Canada, the appeal was
allowed and the actions dismissed.  Charron J. delivered the judgment of
the Court.  In the course of her reasons, she made a number of observations
that appear to have relevance to the present proceedings:

8
The high
threshold for Crown liability was reiterated in
Proulx
, where the Court
stressed that malice in the form of improper purpose is the key to proving
malicious prosecution. In the context of a case against a Crown prosecutor,
malice does not include recklessness, gross negligence or poor judgment. It is
only where the conduct of the prosecutor constitutes an abuse of prosecutorial
power, or the perpetuation of a fraud on the process of criminal justice that
malice can be said to exist (paras. 44-45). Having regard to the defendant
prosecutors mixed motives, the Court was satisfied that
Proulx
was one
of those highly exceptional cases in which Crown immunity for prosecutorial
misconduct should be lifted, and the defendant found liable for malicious
prosecution.



51         [T]he public law doctrine of abuse
of process and the tort of malicious prosecution may be seen as two sides of
the same coin: both provide remedies when a Crown prosecutors actions are so
egregious that they take the prosecutor outside his or her proper role as
minister of justice, such that the general rule of judicial non‑intervention
with Crown discretion is no longer justified. Both abuse of process and
malicious prosecution have been narrowly crafted, employing stringent tests, to
ensure that liability will attach in only the most exceptional circumstances,
so that Crown discretion remains intact.



80         [E]
ven if
the plaintiff should succeed in proving that the prosecutor did
not
have
a subjective belief in the existence of reasonable and probable cause, this
does not suffice to prove malice, as the prosecutors failure to fulfill his or
her proper role may be the result of inexperience, incompetence, negligence, or
even gross negligence, none of which is actionable:
Nelles
, at p. 199;
Proulx
, at para. 35. Malice requires a plaintiff to prove that the
prosecutor
wilfully
perverted or abused the office of the Attorney
General or the process of criminal justice. The third and fourth elements of
the tort must not be conflated.

81        As
discussed earlier, a demonstrable improper purpose is the key to maintaining
the balance struck in
Nelles
between the need to ensure that the
Attorney General and Crown prosecutors will not be hindered in the proper
execution of their important public duties and the need to provide a remedy to
individuals who have been wrongly and maliciously prosecuted. By requiring
proof of an improper purpose, the malice element of the tort of malicious
prosecution ensures that liability will not be imposed in cases where a
prosecutor proceeds, absent reasonable and probable grounds, by reason of
incompetence, inexperience, poor judgment, lack of professionalism, laziness,
recklessness, honest mistake, negligence, or even gross negligence.

[17]

The respondent submits that in cases like the
present one, in which
Charter
damages are sought, the legal landscape
has been altered by the case of
Ward
,
supra
.  In that case,
police officers had been found to have acted wrongly in strip searching a
plaintiff and seizing his car after arresting him for an alleged breach of the
peace.  A trial judge found that there had been an unreasonable search and
seizure and also a wrongful imprisonment by the authorities detaining the
plaintiff longer than necessary.  The trial judge declined to find bad faith on
the part of the police but decided to award $5,100 in
Charter
damages
for the wrongful search and the seizure of a vehicle.  He also awarded $5,000
in damages for the wrongful imprisonment.  The latter award was not appealed. 
On appeal concerning the search and the car seizure, a majority of this Court
sustained the
Charter
damages award but the dissenting judge found that in
such a case where the police activities were mistaken but not malicious, a
Charter
damages award was not appropriate.  On further appeal to the Supreme Court of
Canada, the decision of the majority in this Court was generally sustained.

[18]

The respondent points to certain language of the
Chief Justice in support of his argument that courts ought to be given a very
broad mandate to award
Charter
damages under s. 24(1) of the
Charter
in appropriate cases:

[16]
Section 24(1)
empowers courts of competent jurisdiction to grant appropriate and just remedies
for
Charter
breaches. This language invites a number of observations.

[17]      First, the language of the grant is
broad. As McIntyre J. observed, [i]t is difficult to imagine language
which could give the court a wider and less fettered discretion:
Mills v.
The Queen
, [1986] 1 S.C.R. 863, at p. 965. The judge of competent
jurisdiction has broad discretion to determine what remedy is appropriate and
just in the circumstances of a particular case.

[18]      Second,
it is improper for courts to reduce this discretion by casting it in a
strait-jacket of judicially prescribed conditions. To quote McIntyre J. in
Mills
once more, [i]t is impossible to reduce this wide discretion to
some sort of binding formula for general application in all cases, and it is
not for appellate courts to pre-empt or cut down this wide discretion:
Mills
,
at p. 965.

[19]

The respondent here seeks damages against the
prosecutors for malicious prosecution, abuse of process, and misfeance in
public office and, as well, seeks an award of
Charter
damages for what
is said to have been egregious breaches of disclosure obligations.  The
respondent, in essence, argues that the prosecution was in itself an abuse of
process that merits damages for malicious prosecution and, in addition, the
alleged disclosure failures should attract an award of
Charter
damages.

[20]

I note that in his earlier reasons, Goepel J.
had found that negligence would not afford a proper basis for a damages remedy
against the prosecutors.  However, it seems to me that the amendment he
permitted does embody a form of negligence akin to that species often referred
to as gross negligence, a type of conduct that allowed recovery in earlier
times in motor vehicle cases involving gratuitous passengers:  see
McCulloch
v. Murray
, [1942] S.C.R. 141, [1942] 2 D.L.R. 179, and
Gordon v. Nutbean
,
[1969] 2 O.R. 420, 5 D.L.R. (3d) 503 (H.C.).  In the case of
Jane Doe v.
Metropolitan Toronto (Municipality) Commissioners of Police
(1998), 39 O.R.
(3d) 487, 160 D.L.R. (4th) 697 (Ct. J. (Gen.Div.)), a plaintiff succeeded
in a damages claim where it was found police failure to warn the citizenry
about a rapist on the prowl in a metropolitan area was grossly negligent.  In
certain provinces, legislation has been enacted to protect municipalities from
liability except for gross negligence.  Similarly, there exists in certain
provinces, good samaritan legislation that protects health practitioners providing
emergency assistance from liability absent gross negligence.  Case law defines
gross negligence
inter alia
as a very marked departure from the
standard of responsible and competent drivers or very great negligence:  see
Kingston (City) v. Drennan
(1897), 27 S.C.R. 46, and
Roy v. McEwan
,
[1969] 2 O.R. 530, 6 D.L.R. (3d) 43 (H.C.).  The language of the amendment
ordered here seems to me redolent of the language used in the gross negligence
authorities.  This would amount to a new head of liability against
prosecutors.  The respondent submits this is requisite to ensure a plaintiff is
not left without a proper remedy for prosecutorial misconduct even though there
exist remedies for malicious prosecution and (possibly) misfeance in office.

[21]

In the case of
Hill v. Hamilton-Wentworth
Regional Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129, the
Supreme Court of Canada found it would be appropriate in certain situations to
hold police liable for negligent investigation.  This was necessary because the
existing remedies for wrongful prosecution and conviction are incomplete and
may leave a victim of negligent police investigation without legal recourse:
at para. 35.  The Court, by a majority, found that the tort of negligent
investigation is available in Canada although, in the result, it was held the police
investigation in that case did not breach the applicable standard.

[22]

In the present case, it is clear that there is
the potential remedy of malicious prosecution against the prosecutors.  In a
case like
Hill
, such a remedy against police officers would be hard to
envisage.  The route to potential police liability for damages would lie
through tortious conduct of a negligent character.  There is no lack of an
existing remedy in this case, as was said to be the case in
Hill
.

[23]

Is the existing remedy an effective one to allow
recovery to a victim of prosecutorial misconduct?  The case of
Proulx
demonstrates that malicious prosecution can be an efficacious remedy to one
harmed by prosecutorial misconduct.  In that case, a prosecutor had determined
in 1986 that insufficient grounds existed to indict the plaintiff for the
murder of his former girlfriend due to deficient identification evidence. 
Several years later, the prosecutor decided during defamation proceedings that
the plaintiff brought against a radio station and a police investigator who had
worked on the file, that the criminal case should be reopened and prosecuted. 
After the Court of Appeal of Qu
é
bec had overturned the
conviction of the plaintiff as unreasonable, the plaintiff sued the prosecutor
for malicious prosecution.  He was awarded damages of over a million dollars. 
A majority of the Supreme Court of Canada sustained the decision in favour of
the plaintiff.  The majority made these observations in the course of the
reasons:

34
In our view,
the charges brought against the appellant were based on fragments of tenuous,
unreliable and likely inadmissible evidence. They were accurately characterized
by Rioux J. at trial and LeBel J.A., dissenting, in the Court of
Appeal, as being grounded in mere suspicion and hypotheses. As such, it could
not serve to prove the appellants guilt beyond a reasonable doubt. This being
the case, we are of the view that the proceedings at issue were not based on reasonable
and probable cause.



42
The
tangled relationship between the criminal proceedings initiated against the
appellant, and the appellants defamation suits against Tardif and André
Arthur, also suggests that the prosecution was motivated by an improper purpose
. The prosecutor knew about the defamation suits, and that Tardif was
retired by the time Paquet came forward. Nevertheless, he allowed Tardif to
resume work on the case, even though he was in a conflict of interest and had
no authority to conduct an investigation or to gather evidence. The prosecutor
also knew that Paquet had been in contact with Tardif for several weeks before
police authorities were contacted. He was further aware that Paquet had often
seen newspaper photographs of the appellant in the past, but chose to come
forward only in 1991. The prosecutor also knew about the first identification
session with Tardif, in which Paquet was shown a photo of the appellant with
all but his eyes covered, and Tardif was allowed to be present during the
second identification session held in the prosecutors office.

43        One
might ask why the prosecutor did not question Tardifs involvement in the case
or scrutinize the credibility of a witness who was brought forward after having
first been in contact with the CHRC radio station, and then with Tardif. In our
opinion, this juxtaposition of events shows the importance of the prosecutors
duty not to allow the criminal process to be used as a vehicle to serve other
ends, in this case the ends of Arthur and Tardif in attempting to defend
against the appellants defamation action. The Crown made the decision to
prosecute with the full knowledge that prosecuting the appellant would
potentially assist the defendants in the defamation actions. This was thus more
than a simple abdication of prosecutorial responsibilities to the police or, in
the case of Tardif, to a former police officer. Rather,
the prosecutor lent
his office to a defence strategy in the defamation suits and, in so doing, was
compromised by Tardifs manipulation of the evidence and the irregularities
that took place during the 1991 investigation process
.

[Emphasis added.]

Thus, because the prosecution was pursued
for an improper purpose, it was possible to find that the prosecutors conduct
was malicious.  A substantial award of damages was achieved by the plaintiff at
trial and sustained by the Supreme Court of Canada.

[24]

In my opinion, if a plaintiff demonstrates
malicious conduct, a prosecutor could be liable for tort and
Charter
damages, subject always to double recovery considerations.  This allays Lamer J.s
concern in
Nelles
that a plaintiff could be without a remedy for a
breach of
Charter
rights.  The case of
Proulx
is recent high
authority that demonstrates that proceedings in malicious prosecution can afford
an effective remedy for a wronged plaintiff.

[25]

However, that said, it is clear that the remedy has
restrictions that have always been associated with the action for malicious
prosecution.  The reasons lie in what is sometimes termed governance issues. 
This is simply a shorthand way of expressing the concerns adumbrated in the
American authorities and in
Nelles
and
Miazga
about affording
scope for the exercise of prosecutorial duties and discretion.  As Charron J.
observed at para. 51 of
Miazga
, the remedies for prosecutorial
misconduct have been narrowly crafted, employing stringent tests, to ensure
that liability will attach in only the most exceptional circumstances, so that
Crown discretion remains intact.  The majority observed at para. 35 of
Proulx
that a suit for malicious prosecution must be based on more than recklessness
or gross negligence.  The majority at para. 4 also referred to the
earlier judgment of the Court in
Nelles
in noting that Crown liability
is engaged in only the most exceptional circumstances.

[26]

Goepel J. expressed the view that standards
developed in criminal costs cases could be helpful in defining the parameters
of
Charter
damages in a case like this one, and that the principles from
those cases could address good governance concerns for limiting damage awards.
 In my opinion, the costs cases are not a relevant paradigm for the present
situation.  The costs remedy has been fashioned by and serves to afford
criminal courts a method to control their own processes.  McLachlin C.J.
observed in
R. v. 974649 Ontario Inc
., 2001 SCC 81, [2001] 3
S.C.R. 575:

80
Although
sparingly used prior to the advent of the
Charter
, superior courts have
always possessed the inherent jurisdiction to award costs against the Crown:
R. v. Ouellette
,
[1980] 1 S.C.R. 568;
R. v. Pawlowski
(1993), 12 O.R. (3d) 709
(C.A.), at p. 712. In recent years, costs awards have attained more
prominence as an effective remedy in criminal cases; in particular, they have
assumed a vital role in enforcing the standards of disclosure established by
this Court in
R. v. Stinchcombe
, [1991] 3 S.C.R. 326. See, for
example:
Pawlowski
,
supra
;
Pang
,
supra
;
R. v. Regan
(1999), 137 C.C.C. (3d) 449 (N.S.C.A.).

81        Such
awards, while not without a compensatory element, are integrally connected to
the courts control of its trial process, and intended as a means of disciplining
and discouraging flagrant and unjustified incidents of non-disclosure. Deprived
of this remedy, a provincial offences court may be confined to two extreme
options for relief  a stay of proceedings or a mere adjournment  neither of
which may be appropriate and just in the circumstances. Since untimely
pre-trial disclosure will rarely merit a stay of proceedings when the court can
protect the fairness of the trial with a disclosure order (
OConnor
,
supra
,
at paras. 75-83;
Canada (Minister of Citizenship and Immigration) v.
Tobiass
, [1997] 3 S.C.R. 391, at paras. 90-92), denying the provincial
offences court the jurisdiction to issue a costs award may deprive it of the
only effective remedy to control its process and recognize the harm incurred, even
in cases involving unjustified and flagrant disregard for the accuseds rights.
In these circumstances, the issuance of a costs award is a quintessential
example of the development of imaginative and innovative remedies when just
and appropriate that Lamer J. identified as essential to the meaningful
enforcement of
Charter
rights through the s. 24 guarantee (
Mills
,
supra
, at p. 887).

[27]

I view the costs remedy as a summary type of
process integral to the criminal trial process that can afford a speedy remedy
for perceived prosecutorial lapses.  As a remedy, it is very distinct from the
relief being sought in the case at bar.  In my respectful view, it was
erroneous for the chambers judge to rely on costs cases when deciding whether
to allow the amendment that was sought in this case.

[28]

There is a consistent line of authority from the
Supreme Court of Canada stipulating the parameters of civil liability for
prosecutorial misconduct.  The respondent submits that
Ward
altered the
situation.  But
Ward
was not a case about wrongful prosecution.  It was
a case about police activity.  In the passage from
Ward
set out at para. 19,
supra
, the Chief Justice does indeed endorse a broad discretion in
courts to grant awards of
Charter
damages.  She did, however, go on in
para. 39 of the reasons to note that in some situations, good governance
considerations could operate to militate against such awards.  I consider that
the following passage from the reasons of the Chief Justice is particularly apposite
in the present case:

[43]
Different situations may call for different thresholds, as is the case
at private law. Malicious prosecution, for example, requires that malice be
proven because of the highly discretionary and quasi-judicial role of
prosecutors (
Miazga v. Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 339),
while negligent police investigation, which does not involve the same
quasi-judicial decisions as to guilt or innocence or the evaluation of evidence
according to legal standards, contemplates the lower negligence standard (
Hill
v. Hamilton‑Wentworth Regional Police Services Board
, 2007 SCC 41,
[2007] 3 S.C.R. 129). When appropriate, private law thresholds and defences may
offer guidance in determining whether s. 24(1) damages would be
appropriate and just.
While the threshold for liability under the
Charter
must be distinct and autonomous from that developed under private law, the
existing causes of action against state actors embody a certain amount of
practical wisdom concerning the type of situation in which it is or is not
appropriate to make an award of damages against the state
.

[Emphasis added.]

[29]

In my opinion, it would be an unwarranted
extension of the language in
Ward
to find that the Supreme Court of
Canada was altering the principles set forth in
Nelles
and
Miazga
. 
Ultimately, the issue of the limits of civil liability for alleged
prosecutorial misconduct has about it a large component of policy.  That is
clear from the American authorities and was expressly acknowledged in
Nelles
. 
If the ambit of liability is to be expanded as the respondent urges, I consider
that the legislature or a court of last resort could make such a change.  As an
intermediate appellate court, this Court is clearly bound by pronouncements of
the Supreme Court of Canada and I consider those pronouncements currently foreclose
negligence as a foundation for prosecutorial liability.

[30]

I had earlier observed that the amendment
ordered by the chambers judge would provide for prosecutorial liability if the
plaintiff could establish a species of what I would term gross negligence.  I
have indicated above why I consider this would not be in accord with existing
Supreme Court of Canada jurisprudence.  I have also explained why I do not
consider the recent case of
Ward
to have altered the situation.  I
consider that the chambers judge ought to have refused the amendment to the pleadings
sought by the respondent plaintiff.  I would allow the appeal and dismiss the
application to amend.

The
Honourable Mr. Justice Hall

I agree:

The
Honourable Madam Justice MacKenzie

I agree:

The
Honourable Madam Justice Stromberg-Stein


