DeIFRATE, J.:
(Orally)-- This is a motion for
summary judgment pursuant to Rule 20.01(3) where all of the defendants are claiming that the action should
be dismissed on the basis that it does not disclose a triable issue.
The defendants, Sault Ste. Marie Police Service,
Bradley Clarida and Martin Rowe further claim that the action ought to be
dismissed, since the requirements pursuant to s. 7(1) of the Proceedings
Against the Crown Act, R.S.O. 1990, c. P.27 have not been met. In the
alternative, all of the defendants request that if the matter is to proceed to
trial, then pursuant to Rule 56.01(e), an order for security for costs ought to
be awarded, since the
plaintiff is impecunious and the action is frivolous and vexatious. (Nonsense. Being
imprisoned and prosecuted falsely is not frivolous)
The facts leading up to this action
have deep and long-standing roots. The plaintiff and his wife purchased this
property in approximately 1987. The plaintiff's property is accessed by means
of a shared right-of-way on a common driveway. Problems arose shortly after the
plaintiff became the owner and these problems have persisted ever since. As a
result, the plaintiff has become embroiled in numerous law suits with the different
neighbours that he has had over the years.
Because of
the difficulties that the plaintiff has had with his neighbour's, the police
have intervened on numerous occasions.
Page 2 (page 9)
As mentioned, there
has been a number of court actions, both civilly and criminally and from what
has been provided in the evidence to date, it seems that the best result that
the plaintiff has ever had over these many years and many court proceedings
have been a stay of proceedings by Justice Bolan as a result of an appeal to
him. That stay of proceedings resulted from the facts that have given rise to
this lawsuit.
The defendants Broadbent and the plaintiff have
experienced differences of opinion over what each other's rights ought to be as
a result of sharing this common driveway. Proceedings culminating with the
plaintiff having to execute an undertaking (false; I
was conned by the Judge and the Order was put on Broadbent too) were
held by a number of local justices, including Justice Whalen and Justice Pardu.
While the plaintiff was bound by this undertaking, an
incident with the defendant Tracy- Lynn Broadbent took place on December 8th,
1996. There is a difference of opinion as to exactly what happened, but suffice
it to say that as a result of the said incident, the defendant Broadbent saw
fit to call the police.
After investigating, (false) charges of criminal harassment
contrary to s. 265(1) and charges
of breach of an undertaking contrary to s. 145(5) (false) of the Criminal Code of Canada were
laid against the plaintiff. As a result, he was arrested by Sergeant Clarida
and held in custody for approximately three hours and then released on an
undertaking not to
molest, annoy or harass the defendant Jeff Broadbent.
A second
incident occurred on April 26, 1997. The
defendant Jeffrey Broadbent laid a complaint that he and his daughter were
being videotaped by the plaintiff. He considered this to be harassment and thus
attended at the Sault Police Station where he spoke to Constable Rowe. Broadbent did not mention any
previous involvement with the plaintiff. (false;
and he untruthfully said I videotaped his wife on six other occasions in order
to add her to my undertaking. Rowe must have agreed to that, as it was done)
Following Broadbent's departure from the police
station, Constable Rowe discovered that the plaintiff was bound by an
undertaking not to molest, annoy or harass the defendant Broadbent. Constable
Rowe therefore proceeded to charge the plaintiff with breach of an undertaking,
contrary to section 127(1) of the Criminal Code. (false)
The
plaintiff was again transported to the police station where this time he was
detained for some four hours and then released on a further undertaking not to
communicate with the defendant Broadbent, his family and further, that he keep
the peace and be of good behaviour.
The charges were eventually heard by Justice Lajoie on
October 31st, 1997. The plaintiff was convicted. He appealed and the appeal was
heard by Justice Bolan on July 27th, 1999. Justice Bolan upheld the appeal but,
in his words, "in the best interests for the administration of justice to
bring finality to this dispute", a stay of proceedings was entered.
Between the date of these charges and the
hearing
of the appeal, complaints were laid against the defendants Clarida and Rowe.
All of these complaints were dismissed by the various Boards, ranging from the
Professional Standards Branch of the Sault Ste. Marie Police Service, to the
Ontario Civilian Commission on Police Services.
In the meantime, the plaintiff, through his then
lawyer Yvon Renaud, had issued a statement of claim on June 27th, 1997 whereby
he claimed damages against all of these defendants for false arrest and
malicious prosecution. The plaintiff's allegations are outlined in the
statement of claim.
On his
discovery however, he was asked on what facts he intended to rely upon to
support his allegations as against the defendants. At question 2804 the following appears in the
transcript of the Examination for Discovery of Mr. Townsend held on November
14th, 2000. This is questioning by Mr. Feifel: (Unfairly misconstrued! This
was regarding a complaint I made before I knew I would be suing the
Police. The Court of Appeal also
blocked justice because one lawyer misrepresented these answers and even
omitted the page from his compendium of evidence lest the Judges understood)
2804: Did you give all of the evidence
- all of the facts that you had to the police?
Answer: No, that's
what my problem is. I complained and told them about everything, but I didn't
provide any material evidence to support it and I should have.
2805: Why
didn't you provide the material evidence to the police?
Answer: I didn't
even think of it. I thought well,
they
want my complaint. There's my complaint. I'm complaining about this that, that,
that and so on. But see, that's why nothing was done about it. If I had
provided proof, which is almost impossible to do anyway before a trial, it
might have been a different story.
2806: What
is the proof that you have?
Answer:
Well, that's what we're here for. I've got to prove it at trial.
2807: Can you tell me what it is?
Answer: Oh, there's lots of evidence. Right off hand, no.
In his argument on this motion, the plaintiff has
attempted to prove that there are numerous inconsistencies in the evidence that
was given by the various defendants at various times, ranging from statements
made to the police, evidence given at the various hearings, including the
criminal trial, and of course the Discoveries. No doubt there are inconsistencies in what was said by
the various parties. The plaintiff's position is that these inconsistencies
ought to be adjudicated upon by the trial judge and that he or she can then
determine the validity of his case.
Further, he states that the manner that the police
investigated this case prior to the laying of charges left a lot to be desired.
The issues
before me are whether the evidence that is before me is sufficient to have this
case
proceed to trial, after I have taken "a hard look
at all of the evidence that the plaintiff has to this point." I was referred by counsel to two decisions,
being Pizza Pizza Ltd. vs. Gillespie (1990) 75 O.R. (2d) 225.
What this case stands for is that
the court must determine if there is a genuine issue for trial on which the
plaintiff has reasonable prospects of succeeding at trial. That same
proposition was discussed by the Supreme Court of Canada in the recent decision
of Guarantee Co. of North America v. Gordon Capital Corp. The latest
citation would have been 2000 I.L.R. 1-3741.
And I am quoting from the summary that is in the Ontario Annual
Practice.
"The appropriate test is met when the applicant has shown that there is no genuine issue of material fact requiring trial. The respondent must then establish his or her claim as being one with a real chance of success. A self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence..“
For the plaintiff to succeed at trial, he must
convince the trier of fact of the following: he must convince a court, on the
balance of probabilities, that the defendants acted maliciously and did not
have reasonable and probable grounds.
The Supreme Court of Canada in the
Nelles vs. Ontario [1989] 2 S.C.R. 170 has prescribed four elements that
the plaintiff must prove in order to be successful. These are the following,
and I am quoting from that decision:
"A. the proceedings must have been initiated by the defendant;
B. the proceedings must have terminated in favour of the plaintiff;
C. the absence of reasonable and probable
cause;
D. malice, or a primary purpose other than that of carrying the law into effect." Lamer J., pages 192-193.
Malicious Prosecutions by John Sopinka, Canadian Bar Review 1995 Vol.
74 p. 366 states:
"Although there is a degree of overlap between the elements, failure to establish any of these is fatal to the action."
From what I have heard in submissions and from what I
have read, although the plaintiff may be successful in proving elements A and B
of the test, it is
questionable and in fact doubtful that he can prove elements C and D. At
least this is on the evidence that has been presented to date and
notwithstanding the apparent inconsistencies that he has been able to
demonstrate on this motion.
His
greatest difficulties will be in trying to establish with the trier of fact
that the officers did not have reasonable and probable grounds and that they
acted out of malice.
These latter two elements were addressed by Supreme
Court of Canada in the Nelles case at page 639 where the justices quote
from J. G. Fleming, The Law of Torts, 5th ed. (Sydney: Law Book Co., 1977),
at p. 598. I shall address that aspect of the decision. Here is what Professor
Fleming indicated. His comments have been adopted by the Supreme Court of
Canada in the Nelles decision (supra) at p. 193.
"The
first two elements are straightforward and largely speak for themselves. The
latter two elements require explicit discussion. Reasonable and probable cause
has been defined as 'an honest belief in the guilt of the accused based upon a
full conviction, founded on reasonable grounds, of the existence of a state of
circumstances, 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 the crime
imputed': Hicks v. Faulkner (1881), 8 Q.B.D. 167 at p. 171, per Hawkins
J.
This test
contains both a subjective and objective element. There must be both actual
belief on the part of the prosecutor and that belief must be reasonable in the
circumstances. The existence of reasonable and probable
cause is a
matter for the judge to decide as opposed to the jury.
The required element of malice is, for all intents,
the equivalent of 'improper purpose'. It has according to Fleming, a 'wider
meaning than spite, ill-will or a spirit of vengeance, and includes any other
improper purpose, such as to gain a private collateral advantage': Fleming, op.
cit., at p. 609. To succeed in an action for malicious prosecution against
the Attorney-General or Crown Attorney, the plaintiff would have to prove both
the absence of reasonable and probable cause in commencing the prosecution, and
malice in the form of a deliberate and improper use of the office of the
Attorney-General or Crown Attorney, a use inconsistent with the status of
'minister of justice'. In my view this burden on the plaintiff amounts to a
requirement that the Attorney-General or Crown Attorney perpetrated a fraud on
the process of criminal justice and in doing so has perverted or abused his
office and the process of criminal justice. In fact, in some cases this would
seem to amount to criminal conduct. (See, for example, breach of trust, s. 122,
conspiracy re: false prosecution s. 465(1) (b), obstructing justice s. 139(2)
and (3) of the Criminal Code, R.S.C., 1985, c. C-46.)
Further, it
should be noted that in many, if not all cases of malicious prosecution by an
Attorney-General or Crown Attorney, there will have been an infringement of an
accused's rights as guaranteed by ss. 7 and 11 of the Canadian Charter of
Rights and
Freedoms.
By way of
summary then, a plaintiff bringing a claim for malicious prosecution has no
easy task. Not only does the plaintiff have the notoriously difficult task of
establishing a negative, that is the absence of reasonable and probable cause,
but he is held to a very high standard of proof to avoid a non-suit or directed
verdict: see Fleming, op. cit., at p. 606 and Mitchell v. John Heine &
Son Ltd. (1938), 38 S.R. (N.S.W.) 466, at pp. 469-71. Professor Fleming
has gone so far as to conclude that there are built-in devices particular to
the tort of malicious prosecution to dissuade civil suits (at p. 606):
The
disfavour with which the law has traditionally viewed the action for malicious
prosecution is most clearly revealed by the hedging devices with which it has
been surrounded in order to deter this kind of litigation and protect private
citizens who discharge their public duty of prosecuting those reasonably
suspected of crime."
Now that is from the Supreme Court of Canada.
Applying that test to this case, at best the
plaintiff may be able to prove that there are inconsistencies in the evidence
of the investigating officers. There is
no evidence, at
this
stage, to suggest that any of the defendants have, and I quote from that
decision, "perpetrated a fraud on the process of criminal justice and in
doing so have perverted or abused his or their office and the process: of
criminal justice."
Accordingly, I
am satisfied that the applicants have demonstrated that there is no genuine
issue of material fact necessitating a trial on this action. And, I am further
satisfied that the plaintiff has not established that his claim is one that has
a real chance of success.
Having so
found, I need not deal with the other relief sought by the defendants. Accordingly, the plaintiff's
action as against all of the defendants is therefore dismissed.
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