The taxpayers (Mr. and Mrs. Samaroo), operated a restaurant and nightclub in Nanaimo, B.C. Mr. Samaroo and his accountant told CRA that substantial cash deposits made to the business account were of large accumulated cash savings that were deposited because he was afraid that the bank would stop accepting old $100 bills. The principal CRA investigator (Keith Kendall) formed the view that the taxpayers had skimmed $1.7 million from the restaurant between 2004 and 2005. In 2011, the taxpayers were acquitted on all counts of tax evasion. The taxpayers then sought damages for alleged malicious prosecution in this action against CRA, the Crown prosecutor (Brian Jones) and his law corporation. Punnett J dismissed the claims against the latter two, but awarded damages against CRA consisting of $347,731.74 respecting the legal expenses of the criminal defence, $300,000 to each of Mr. and Mrs. Samaroo for aggravated damages and $750,000 in punitive damages.
Punnett J first noted (at paras 106 -107) that the elements in issue (as enunciated in Miazga, 2009 SCC 5) respecting all defendants were whether “the prosecution was undertaken without reasonable and probable cause; and … was motivated by malice or a primary purpose other than that of carrying the law into effect,” and additionally, in the case of CRA, whether CRA “initiated or continued the prosecution against them.”
As to the latter element, he stated (at paras 195 and 198):
[I]t appears they [Brian Jones and another prosecutor] relied on Mr. Kendal and the CRA to gather the evidence, draft the final Information, and essentially, do charge approval. …
… Mr. Kendal and therefore his employer the CRA “caused everything to be done which could be done wrongfully to set the law in motion” against the Samaroos … .
As to the absence of reasonable and probable cause, he stated (at paras 242, 244 and 245):
[T]he CRA could prove the plaintiffs had the money, but not anything about whether it was skimmed, when it was skimmed, from which corporation it was skimmed, nor how the plaintiffs did so. The theory of the prosecution was founded on an assumption, which could not be proved.
…[T]he charges against the Samaroos were founded on an assumption, and grounded in mere suspicion and hypotheses, which did not and could not constitute reasonable and probable cause … .
As to malice of CRA. he stated (at para 257 and 258):
Proof of malice requires proof on a balance of probabilities that in the role of an investigator, Mr. Kendal acted deliberately to subvert and abuse his office. … He did so by suppressing evidence and attributing evidence to witnesses that was not accurate. … He knowingly misstated evidence essential to the proof of the actus reus despite being aware of its importance, [and] filed a misleading report knowing it would be relied upon to authorize the prosecution… . I am satisfied that malice has been vicariously established as against the CRA as a result of the conduct of Mr. Kendal.
…Mr. Kendal … wrote the Prosecution Report as an advocate not an investigator. He presented the evidence in a way designed to mislead [the prosecutors].
Respecting the failure to establish malice of Brian Jones, he stated (at para 281):
…He struck me as a lawyer, who, through negligence or otherwise, gave up control of the prosecution to Mr. Kendal and the CRA and in so doing risked a miscarriage of justice. However, a failure to act properly as a result of negligence or a lack of understanding of the issues or a failure to properly exercise prosecutorial discretion does not in itself amount to malice.