Samaroo – B.C. Supreme Court awards taxpayers $1.7 million in damages for malicious prosecution by CRA
A couple who operated a restaurant in B.C. have been awarded $1.7 million in damages (including $750,000 in punitive damages) against CRA for malicious prosecution. In reaching the startling conclusion that the prosecution was initiated by CRA, Punnett J stated that the prosecutors “relied on Mr. Kendal [the principal CRA investigator] and the CRA to gather the evidence, draft the final Information, and essentially, do charge approval.”
In finding CRA malice, he stated that the Mr. Kendall “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.”
In finding that there was no malice of the prosecutor (and, thus, no tort liability for him) Punnett J stated:
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.
He went on to find that, as the taxpayers’ s. 7 Charter rights had also been breached, damages would have been payable under s. 24 of the Charter if their damages had not already been recoverable in tort.