Miguna v. Toronto Police Services Board, 2007 CanLII 3674 (ON SC)
Date:
2007-02-14
File number:
04-CV-272928CM1
Citation:
Miguna v. Toronto Police Services Board, 2007 CanLII 3674 (ON SC), <http://canlii.ca/t/1qj3p>, retrieved on 2019-09-03
COURT FILE NO.: 04-CV-272928CM1
DATE: 20070214
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
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MIGUNA MIGUNA
Plaintiff
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JULIAN FANTINO, ROGER SHALLOW, FRED BRALEY, ALESSANDRO “ALEX” PANDOLFI, AUDREY CHEN,
WENDY LEAVER, L. MURAROTTO,
HUGO COUTO and PASQUALE ALBERGA
Defendants
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The Plaintiff, appearing in person.
Michael C. Smith and
Kathryn E. Kirkpatrick, for the
Police Defendants
John Zarudny and James Kendik,
for the Crown Defendants
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HEARD: December 11 and 12, 2006
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Spence J.
REASONS FOR DECISION
[1] This is a motion under Rules 21 and25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, by the Police Defendants to strike out theAmended Fresh Statement of Claim (referred to often as the “Statement of Claim”) and by theCrown defendants (i.e., Roger Shallow and Fred Braley) to dismiss the action of the Plaintiff against them and for alternative relief.
[2] Paisley J. of this Court granted an order to strike the original Statement of Claim in these proceedings in Miguna v. Attorney General for Ontario, [2005] O.J. No. 1548, released March 23, 2005. Paragraph 2 of the decision provides thefollowing description of the background to thecase:
The Plaintiff is a lawyer who was charged with three counts of sexual assault, based on the allegations oftwo female complainants who separately alleged that they had been sexually assaulted by the Plaintiff in his law office, where they had attended to consult with the Plaintiff with respect to refugee claims relating to concerns arising in their native land, Kenya. The Plaintiff was tried by theHonourable Mr. Justice Moore and acquitted on June 23, 2004.
[3] On appeal, the Court of Appeal, by reasons of Blair J.A. released December 14, 2005, set aside the order of Paisley J. as against thepresent Defendants and granted leave to thePlaintiff to deliver a fresh Statement of Claim.
[4] With respect to the claim against the Crown Defendants, who are both Crown attorneys, Blair J.A. said this at paragraph 11:
Thus there exists a narrow exception to the Crown's immunity from suit for prosecutorial misconduct in cases where "the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim". Whether that narrow exception is confined to the tortknown as "malicious prosecution" is not clear from the authorities. But one thing is clear: however the claim is framed, the Crown's conduct must rise to the level of malice. Malice is defined for these purposes as "a deliberate and improper use of theoffice of the Attorney-General or Crown Attorney, a use inconsistent with the status of 'minister of justice'" and one in which the defendant "perpetrated a fraud on the process ofcriminal justice and in doing so has perverted or abused his office and theprocess of criminal justice": Nelles, at 193-194. No action lies against a Crown Attorney for prosecutorial misconduct that sounds in negligence.
There is a claim in law against thepolice for negligent investigation, however: see Beckstead v. Ottawa (City) Chief of Police (1997), 1997 CanLII 1583 (ON CA), 37 O.R. (3d) 62 (Ont. C.A.); Hillv. Hamilton-Wentworth Regional Police Services Board, 2005 CanLII 34230 (ON CA), [2005] O.J. No. 4045. As well, police may be liable for independent tortscommitted during the course of their duties, such as false arrest, false imprisonment, and assault and battery.
[6] At paragraph 16 of the reasons, Blair J.A. identifies the principal allegations made by the Plaintiff as follows:
¶16 (a) he was arrested without reasonable cause and without thepolice having conducted a proper investigation on both November 4, 2002 (at his law office) and July 14, 2003 (at the courthouse);
(b) both arrests were made publicly with a view to embarrassing and humiliating him in front of staff, professional colleagues, the judiciary, members of courts administration and the public;
(c) the July 14 arrest was carried out in full public view, and on the instructions of the Crown, notwithstanding that Mr. Miguna and his lawyer had only four days previously attended at the police station in response to an indication that the police had been looking for him;
(d) Crown Attorney Shallow directed the police officers to have Mr. Miguna arrested;
(e) the trial judge acquitted him because, amongst other things, (i) thepolice failed to conduct a full investigation and to interview important witnesses, (ii) he was suspicious the complainants had a common motive to implicate Mr. Miguna, and (iii) he found Mr. Miguna to be a credible witness; in addition, the trial judge also alluded to the fact that Mr. Miguna was arrested on July 14, 2003, "despite offers by Mr. Miguna and his counsel to present himself to the police prior to that date";
(f) Crown Attorney Shallow, alone or with the other defendants, sent fake clients to Mr. Miguna with the aim of entrapping him;
(g) Crown Attorney Shallow continued to prosecute him when he (Shallow) knew or ought to have known that the complainants had falsely accused Mr. Miguna, misrepresented facts and evidence to the Ontario Court of Justice, interfered with witnesses, concealed evidence from the defence and theCourt and counselled witnesses to commit perjury;
(h) Crown Attorney Braley engaged in activities similar to those outlined in (g) above;
(i) both Shallow and Braley participated in causing the venue ofMr. Miguna's trial to be changed from the Ontario Court of Justice at 1000 Finch Ave. to the Court located at College Park in downtown Torontowith the intention of further injuring his professional reputation;
(j) all individual defendants participated in racial profiling against him;
(k) the Police defendants failed to investigate the complainants' allegations against him prudently and to follow up where required, continued with the prosecution when they knew or ought to have known there was no reasonable basis for it, participated in the presentation offalse evidence, failed to make full disclosure, and withheld evidence; and
(l) he was assaulted by thepolice and subject to an illegal strip search during his detentions.
[7] At paragraphs 17 and 18, Blair J.A. said as follows:
¶17 These are very serious allegations, and are, of course, only allegations at this stage of the proceedings. Mr. Miguna fails to establish them at his peril in terms of costs and, possibly, his reputation. For the most part, theallegations are pleaded in an unacceptably bald fashion. However, if appropriately supported by material facts, and proven, they - and other facts pleaded - could support claims for malicious prosecution, breach of theCharter and misfeasance in public office as against the Crown Attorney and Police defendants, and as against the Police defendants alone claims for negligent investigation, unlawful arrest, false imprisonment, and assault and battery. In my view, the plaintiff should be entitled to one more chance to attempt to plead these claims properly.
¶18 At the same time, it is appropriate to reiterate at this point theobservation of Dickson J. in Operation Dismantle, supra [1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441], at p. 455 that "allegations based on assumptions and speculation" need not be taken as true, because it would be improper to do so, as they are incapable of proof. Mr. Miguna must have knowledge of thefacts supporting his claims and not merely plead allegations that he believes may or may not be true. Rosenberg J. put it this way, in Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 CanLII 6761 (ON SC), 12 O.R. (3d) 750 (H.C.J.) at 757:
... If the plaintiff does not at the outset have knowledge of the facts that give rise to the conclusions of malice, breach of duty, conspiracy to intentionally injure, etc., then it is inappropriate to make these allegations in the statement of claim. It may be that in the future theplaintiff will determine facts as a result of discovery or in some other way that will support some or all of theallegations ... [B]ut until the plaintiff has knowledge of some facts on which to base the conclusions alleged in thestatement of claim, it is improper to allow these conclusions to be pleaded baldly and without any supporting facts.
[8] It is important to note that in paragraph 17 Blair J. said that the additional chance to be given to the Plaintiff is “to attempt to plead these claims properly” (emphasis added). The claims Blair J.A. was referring to are those set out earlier in paragraph 16. Those claims do not include a host of other claims that were asserted in the Statement of Claim, as mentioned in paragraph 14 of the Court of Appeal reasons as follows:
By any standards, Mr. Miguna's statement of claim is not well pleaded. He is claiming $17.5 million in damages and alleging the gravest ofallegations against the Crown Attorney and Police defendants. Yet, instead of focusing his claim and thefactual assertions supporting it on thefew bases that may be open to him, he has taken the scattergun approach and raises - according to therespondents' count ‑ somewhere between sixteen and twenty-five causes of action. These include: malicious prosecution, breach ofCharter rights, prosecutorial misfeasance (abuse of process, abuse of power), negligent investigation, conspiracy, fraudulent misrepresentation, unlawful arrest and detention, assault and battery, defamation, incompetence, recklessness, wilful blindness, racial profiling, interference with bodily security, cruel unusual and oppressive treatment, and breach of trust.
[9] In paragraph 63 of his factum, theplaintiff acknowledges that the Court of Appeal decision allowed him to amend so as to plead facts to support the claims itemized by Blair J.A. in paragraph 16 of the decision.
[10] These reasons for decision accordingly address the allegations asserted by thePlaintiff in the Amended Fresh Statement of Claim with regard to the facts now pleaded in respect ofthe claims that are itemized in paragraph 17 ofthe Court of Appeal decision.
The Approach Required on the Motion
[11] The Defendants seek to have theStatement of Claim struck on the ground that it does not disclose a cause of action and/or that it is frivolous and vexatious. It is not disputed that on a motion to strike the test is whether it is plain and obvious on the facts pleaded that the claim of theplaintiff cannot succeed. The facts relied on by thePlaintiff must be properly pleaded. In applying thetest, the Court is to assume that properly pleaded facts are true.
The Allegations of Fact in the Amended Fresh Statement of Claim
[12] The Statement of Claim is 85 pages long and contains 215 paragraphs. It contains numerous allegations. The propriety of a number of these allegations is contested on one ground or another. With respect to a number of theallegations, Rule 25.06(8) is relevant. Rule 25.06(8) provides as follows:
Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading thecircumstances from which it is to be inferred.
[13] The principal allegations made are to the same effect as the allegations which theCourt of Appeal decision, at paragraph 16, identified as being expressed in the original Statement of Claim. These allegations are addressed above.
[14] Individual allegations are considered below in connection with the causes of action that are in issue. The Statement of Claim is long and labyrinthine and the analysis set out below reflects those characteristics in order to carry out thedetailed enquiry that is implicitly mandated by thedecision of the Court of Appeal.
[15] In considering a number ofallegations made by the Plaintiff it is necessary to bear in mind the remarks of Dickson J. in Operation Dismantle v. Canada, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at 455, where he said thefollowing with respect to the rule on a motion to strike pleadings that the facts in a Statement ofClaim must be taken as proven:
¶27 We are not, in my opinion, required by the principle enunciated in Inuit Tapirisat, supra, to take as truethe appellants' allegations concerning the possible consequences of thetesting of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for thepurpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature ofsuch an allegation is that it cannot be proven to be true by the adduction ofevidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven.
[16] The Plaintiff alleges that theDefendants acted with malice towards him. Malice is a necessary element in a number of the causes of action that the Plaintiff asserts. Accordingly, for those causes of action, the allegations made by thePlaintiff must assert facts that would support a finding of malice. In the absence of direct evidence of malice (such as expressly malicious articulations), a court is not to infer malice unless that is the only reasonable inference to be drawn from the facts: see the discussion of this point and the cases cited in this regard below. This rule accords with the common sense notion that an improper motive should not be ascribed to conduct that can be explained otherwise.
[17] No case was mentioned that deals with how that test should properly be applied at the preliminary stage of a motion to strike pleadings. In view of the general test at this stage (“plain and obvious”, etc.), it is reasonable to conclude that where facts are pleaded that are said to support a finding of malice, the question for thejudge on the motion should be: Is it plain and obvious that a trier of fact could not conclude that malice is the only reasonable inference to be drawn from those facts? To put the same point in positive terms, a pleading of facts that is advanced in support of a claim of malice must be considered sufficient if the trier of fact could reasonably conclude from these facts (if proven) that malice must be inferred from them. It would be improper to go further and require or permit that the motion judge decide himself or herself whether malice is in fact the only reasonable inference to be drawn, because imposing that requirement would give to the motion judge the function that is to be performed by the trial judge.
LAW
Malicious Prosecution
[18] The law with respect to malicious prosecution is dealt with in the Police Defendants’ factum at paragraphs 57 to 76 and in the Crown Defendants’ factum at paragraphs 18 to 34. Thetwo elements necessary for a claim of malicious prosecution that are in issue here are: (1) whether the prosecution was commenced or continued without reasonable and probable cause; and (ii) whether the prosecution was activated by malice. These elements are considered below.
Reasonable and Probable Cause
[19] The Court should, at the earliest stage of a malicious prosecution action, assess thereality of success and eliminate those cases that lack any chance of success. The Supreme Court in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 clearly identified the availability ofprocedures for striking out groundless claims such as Rule 21.01(1)(b) of the Rules of Civil Procedureas being an important element in maintaining thecorrect balance between the protection ofindividuals' rights and the need to permit public officers engaged in the administration of justice to perform their functions without harassment. TheCourt articulated the view that actions for malicious prosecution should receive special judicial scrutiny at an early stage and that the"rules of civil procedure should not act as obstacles to a just and expeditious resolution of a case".
[20] In his conclusion, Lamer J., at paragraph 56, underlined the importance of being able to strike meritless actions for malicious prosecution at an early stage:
In my view the inherent difficulty in proving a case of malicious prosecution combined with themechanisms available within thesystem of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in theproper execution of their important public duties.
[21] The burden on a plaintiff bringing a suit for malicious prosecution is onerous and strict. In order to prove an allegation of malicious prosecution, the plaintiff must prove that there was an absence of reasonable and probable cause and that there was malice, in the form of a deliberate and improper use of a prosecution to perpetrate a fraud on the process of criminal justice: Nelles, supra, at paragraph 52.
[22] The failure to disclose an absence ofreasonable cause is fatal to a claim for malicious prosecution and negligent investigation: Osborne v.Ontario (Attorney General), [1996] O.J. No. 2678 at para. 9 (Gen. Div.), aff’d [1998] O.J. No. 4457 at para. 2 (C.A.).
…an honest belief in the guilt of theaccused based upon a full conviction, founded on reasonable grounds, ofthe existence of a state ofcircumstances, which assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of thecrime imputed: Hicks v. Faulkner(1878), 8 Q.B.D. 167 at 171, (Q.B.).
[24] In R v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C..R. 241, at pp. 250-251, the Supreme Court of Canada held:
… the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point ofview. That is to say, a reasonable person placed in the position of theofficer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
[25] The issue of reasonable and probable grounds for making an arrest was discussed further in Wiles v. Ontario (Police Complaints Commissioner), [1997] O.J. No. 6274, at para. 47 (Gen. Div.). The Court found that thepolice officer was not required to demonstrate anything more than reasonable grounds in that he was not required to establish:
(1) a prima facie case for a conviction before making the arrest;
(2) that the charge would succeed a trial; or
(3) that the accused had no valid defence to the charge.
[26] In MacPhee v. Ottawa Police Services Board, [2003] O.J. No. 3786 at para 27 (S.C.J.), Power J. stated that:
It is also important to remember that the arresting police officers were not seized with the responsibility ofdeciding guilt or innocence but, rather, whether the information received by them required action by them, and what action…A further and more detailed investigation may have elicited more information and may have caused the police officers to act differently. However, the conduct ofthe Defendants cannot be examined in minute detail on an after-the-fact basis. As aforesaid, the question is whether their conduct was reasonable in the circumstances.
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