proulx v. quebec
(a.g.), [2001] 3 S.C.R. 9, 2001 SCC 66
Benoît Proulx Appellant
v.
The Attorney General of
Quebec
Respondent
Indexed
as: Proulx v. Quebec (Attorney General)
Neutral
Citation: 2001 SCC 66.
File No.: 27235.
2000: December 11; 2001:
October 18.
Present: McLachlin
C.J. and L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of
appeal for quebec
Civil
liability – Malicious prosecution – Regime of immunity and extra-contractual
civil liability applicable in Quebec law to Attorney General of Quebec and prosecutors
-- Whether Nelles applies integrally in Quebec -- Whether facts alleged against
Attorney General and prosecutor meet test set out in Nelles.
In
1986, the prosecutor determined that there were insufficient grounds to charge
the appellant with the murder of his former girlfriend as there was no reliable
identification evidence. The prosecution file was closed. Some five years
later, in the midst of a sensational defamation claim launched by the appellant
against a radio station and a retired police investigator who had worked on the
file, the prosecutor was advised by the defamation case defendants of a
potential new identification witness. The prosecutor added the defendant police
investigator to the prosecution team, re-opened the file, and decided to
prosecute the appellant on a first degree murder charge. At trial, the jury
found the appellant guilty. On appeal, the Court of Appeal overturned the
conviction with strong criticism of the lack of credible evidence. Following
his acquittal, the appellant brought an action for damages for malicious
prosecution against the Attorney General of Quebec. The Superior Court found
the Attorney General liable and entered judgment against the Attorney General
for over a million dollars in damages. A majority of the Court of Appeal
allowed the Attorney General’s appeal and dismissed the action. The question in
front of this Court is whether this is one of the exceptional cases in which
Crown immunity for prosecutorial misconduct should be lifted.
Held
(L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting): The appeal should be
allowed.
Per
McLachlin C.J. and Iacobucci, Major and Binnie JJ.: Prosecutors are vested with
extensive discretion and decision-making authority to carry out their functions
and courts should be very slow to second-guess a prosecutor’s judgment calls
when assessing Crown liability for prosecutorial misconduct. The Department of
the Attorney General and its prosecutors, however, are not above the law and
this is one of the exceptional cases in which Crown immunity for prosecutorial
misconduct should be lifted. Nelles sets out four requirements that must
be established on a balance of probabilities in an action in damages based on
prosecutorial misconduct and those requirements are satisfied here. The record
reveals that: (1) the respondent initiated the prosecution; (2) the prosecution
resulted in the appellant’s acquittal; (3) the Crown prosecutor did not have
reasonable and probable cause upon which to found the charges brought against
the appellant; and (4) the prosecution was motivated by an improper purpose.
Clearly
a prosecutor need not be convinced beyond a reasonable doubt of an accused
person’s guilt before bringing charges, but there must be sufficient evidence
to ground a reasonable belief that a conviction could properly be obtained. In
this case, it must have been clear to the prosecutor in 1991, when he
authorized the charge of first degree murder, that the evidence could not
properly have resulted in a conviction. In particular, the eyewitness
identification of the appellant, which was the primary basis for reopening the
investigation and prosecuting him, was flagrantly inadequate and the surreptitiously
recorded conversation between the appellant and the victim’s father was likely
inadmissible evidence. Even if admissible, that conversation lacked probative
value. The charges brought against the appellant were grounded in mere
suspicion and hypotheses and were not based on reasonable and probable cause.
This, by itself, is not sufficient to ground the appellant’s lawsuit.
A
suit for malicious prosecution requires evidence that reveals a willful and
intentional effort on the Crown’s part to abuse or distort its proper role
within the criminal justice system. In the civil law of Quebec, this is
captured by the notion of “intentional fault”. The key to a malicious
prosecution is malice, but the concept of malice in this context includes
prosecutorial conduct that is fuelled by an “improper purpose”. Here, the
improper purpose arose because of the mixing of a private interest (defence of
the defamation suit) and a public interest (the prosecution). The trial judge
so found and there was no valid basis for the Court of Appeal to interfere with
this finding.
The
prosecutor’s decision to recruit the retired police investigator to assist in
the resurrected prosecution file, notwithstanding his status as a defendant in
the appellant’s well-publicized million dollar defamation suit, is further
evidence of malice in the sense of the prosecutor’s apparent indifference to
the improper mixing of public and private business.
The
prosecutor lent his office to support a defence strategy in the defamation suit
and, in so doing, was compromised by the retired police investigator’s apparent
manipulation of the evidence and the irregularities that took place during the
re-opened investigation. There was a flagrant disregard for the rights of the
appellant, fuelled by motives that were clearly improper. While Nelles established
a generous boundary within which prosecutors acting in good faith have immunity
despite bad decisions, the mixed motives of the prosecutor in this case carried
him across that boundary and amounted to malice.
Per
L’Heureux-Dubé, Gonthier and Bastarache JJ. (dissenting): In Quebec, the
extra-contractual civil liability of the Attorney General of Quebec and of prosecutors
for malicious prosecution is part of the public law. The public law of Quebec
on this point is governed by the public common law. The principles laid down in
Nelles are part of the public law of Quebec and those principles state
that the Attorney General and prosecutors enjoy, not absolute immunity in
respect of the tort of malicious prosecution, but relative immunity. Nelles
applies integrally in Quebec and, consequently, there is no need to apply the
notions of fault in Quebec’s private law in order to decide that liability;
rather, the public law test stated in Nelles should be applied. The
necessary threshold for lifting the immunity of prosecutors is high. In this
case, the facts alleged against the Attorney General and the prosecutor do not
meet the last two criteria in Nelles. The evidence in the record
establishes that at the time the prosecution was initiated the prosecutor could
reasonably have believed that he had reasonable and probable grounds to charge
the appellant and that he did not act with malice.
The
role of the Attorney General is not that of the judge, nor to be objectively
satisfied, beyond a reasonable doubt, of the guilt of an accused, or even to
ensure, in that respect, that the evidence he or she has will necessarily be
sufficient to guarantee a guilty verdict. In subjective terms, he or she must
believe in good faith in the guilt of the accused, and that certainty must be
based on reasonable and probable grounds. From the record, it is apparent that
the prosecutor had a sincere belief in the appellant’s guilt. On the question
of the objective analysis of the reasonableness of that belief, it must be
determined whether a prudent and cautious person would have believed that the
appellant was probably guilty of the crime. In applying that test, one must
have regard to the circumstances of the case. In this case, the charge was laid
on the basis of entirely circumstantial evidence. Even though none of the facts
disclosed by the investigation at that time, taken in isolation, was sufficient
to establish the guilt of the accused, that evidence, when added up and taken
in its entirety, could reasonably have justified a finding of guilt.
In
particular, at the time the criminal charge was laid, the prosecutor had reason
to believe that the conversation between the victim’s father and the appellant
was admissible. The Court of Appeal acknowledged that, when the trial judge
made his decision to admit the conversation, there were particular circumstances
that justified the conclusion he had reached. In this particular context, we
cannot require more of the prosecutor, at the time he laid the charge, than was
required of the trial judge at the time his decision was made. On the question
of the identification of the appellant, this was merely one element in the body
of circumstantial evidence on which the charge was based. The new witness was
not an eyewitness to the murder, and his testimony was not intended to identify
a murderer, but rather simply to add an additional element to the body of
evidence that was already available to the prosecutor. In addition, the rules
set out in the case law regarding identification are very flexible. Even an
“irregular” identification can be legally admissible in evidence. The
prosecutor therefore acted in conformity with the state of the law regarding
identification. Regardless of its probative value, the identification in this
instance was not illegal. It was up to the jury to assess that identification
evidence, and it was up to the judge to caution the jury regarding its
probative value. Even if the identification related solely to the appellant’s
eyes and beard, the prosecutor is neither judge nor jury, and he had the right,
and even the duty, to take that evidence to the justice system, provided that
he himself believed that it was valid. There is nothing in the record to
suggest that this was not the case and that he acted in bad faith.
In
light of the evidence in the prosecutor’s possession at the time he authorized
the laying of the charge of first degree murder against the appellant, when it
is examined in its context in light of the nature of the evidence and the law
at the time, the prosecutor could plausibly have believed that he had sufficient
reasonable and probable grounds to charge the appellant. Other important
elements suggest that there were sufficient grounds, such as the fact that the
judge at the preliminary inquiry committed the appellant for trial. One must
assume that the judge was cognizant of the state of the law. If he considered
the evidence offered by the prosecutor to be sufficient to justify committal
for trial, the prosecutor cannot be criticized for reaching the same
conclusion. Moreover, the trial judge did not direct a verdict of acquittal and
the appellant was found guilty by the jury at the end of his criminal trial.
To
demonstrate malice, the appellant must show on a preponderance of evidence that
there was an improper purpose and that the powers of the prosecutor were
perverted to that end. This standard, which must be applied strictly, is a high
and clear one, in that it calls for proof of the subjective intent of the
prosecutor to act out of malice or with an improper purpose. In this case, the
mere fact that he authorized the laying of a criminal charge which resulted in
a verdict of acquittal cannot support the conclusion that there was malice on
the part of the prosecutor. It would be contrary to the standard of conduct set
out in Nelles and it would place an obligation on the prosecutor in
respect of the result. A standard of that nature would amount to denying the
prosecutor any immunity. The existence of reasonable and probable grounds for
laying the charge rules out the possibility that the prosecutor was acting out
of any “improper purpose” on this ground. The evidence in the record
establishes that it was the appearance of a new witness that influenced the
conduct of the prosecutor, and not the publicity surrounding the civil defamation
action. The prosecutor had nothing to do with that action. It was only at the
request of his superiors that he reopened the case. Nor can the prosecutor be
criticized for the acts of an officer who was at that time retired from the
police, when the prosecutor was unaware of those acts, for which the
investigator had received no mandate from the prosecutor. It is logical that
the Attorney General, through the police, subsequently obtained that
investigator’s services to pursue the investigation, since he was the one who
had conducted the entire investigation in this case from the beginning.
Finally, there is no indication of malice on the part of the prosecutor in the
prosecutor’s use of the conversation between the victim’s father and the
appellant in his argument at trial.
In
short, there is no evidence to show that the prosecutor acted for personal
purposes, out of vengeance or ill-will toward the appellant, in bad faith or
beyond his mandate for improper purposes, or that he committed a fraud on the
law. A careful examination of the facts in evidence in the civil action shows
rather that the prosecutor acted within the bounds of his functions as a public
officer, by prosecuting an individual whom he believed, in good faith, to be guilty
of a crime.
Cases
Cited
By
Iacobucci and Binnie JJ.
Followed:
Nelles v. Ontario, [1989] 2 S.C.R. 170; referred to: R. v.
Dwyer (1924), 18 Cr. App. R. 145; R. v. Swanston (1982), 65 C.C.C.
(2d) 453; Mezzo v. The Queen, [1986] 1 S.C.R. 802; Marcoux v. The
Queen, [1976] 1 S.C.R. 763; R. v. Duarte, [1990] 1 S.C.R. 30; Boucher
v. The Queen, [1955] S.C.R. 16; R. v. Bain, [1992] 1 S.C.R. 91; R.
v. Charest (1990), 28 Q.A.C. 258; R. v. S. (F.) (2000), 47 O.R. (3d)
349; R. v. Campbell, [1999] 1 S.C.R. 565.
By
L’Heureux-Dubé J. (dissenting)
Nelles
v. Ontario, [1989] 2 S.C.R. 170; Laurentide Motels Ltd. v. Beauport
(City), [1989] 1 S.C.R. 705; Canadian Broadcasting Corp. v. Quebec
Police Commission, [1979] 2 S.C.R. 618; Senez v. Montreal Real Estate
Board, [1980] 2 S.C.R. 555; Attorney General of Quebec v. Labrecque,
[1980] 2 S.C.R. 1057; 2747-3174 Québec Inc. v. Quebec (Régie des permis
d’alcool), [1996] 3 S.C.R. 919; Alliance des Professeurs catholiques de
Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; The
King v. Cliche, [1935] S.C.R. 561; McArthur v. The King, [1943] Ex.
C.R. 77; The King v. Anthony, [1946] S.C.R. 569; R. v. Canadian
Broadcasting Corp., [1958] O.R. 55; R. v. Eldorado Nuclear Ltd.,
[1983] 2 S.C.R. 551; Sparling v. Quebec (Caisse de dépôt et placement du
Québec), [1988] 2 S.C.R. 1015; Alberta Government Telephones v.
Canada (Canadian Radio-television and Telecommunications Commission),
[1989] 2 S.C.R. 225; Sellars v. The Queen, [1980] 1 S.C.R. 527; Martel
Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000 SCC 60; Ingles v.
Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, 2000 SCC 12; Lewis
(Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145; Brown
v. British Columbia (Minister of Transportation and Highways), [1994] 1
S.C.R. 420; Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R.
445; Just v. British Columbia, [1989] 2 S.C.R. 1228; Rothfield v.
Manolakos, [1989] 2 S.C.R. 1259; Ryan v. Victoria (City), [1999] 1
S.C.R. 201; Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R.
1181; Québec (Procureur général) v. Deniso LeBel Inc., [1996] R.J.Q.
1821; Boucher v. The Queen, [1955] S.C.R. 16; Imbler v. Pachtman,
424 U.S. 409 (1976); Yaselli v. Goff, 12 F.2d 396 (1926); Reference
re Truscott, [1967] S.C.R. 309; R. v. Kaysaywaysemat (1992),
10 C.R. (4th) 317; R. v. Bowles (1985), 21 C.C.C. (3d) 540; Genest v.
La Reine, [1990] R.J.Q. 2387; R. v. White, [1998] 2 S.C.R.
72; R. v. Ménard, [1998] 2 S.C.R. 109; Hicks v. Faulkner (1878),
8 Q.B.D. 167; R. v. Yebes, [1987] 2 S.C.R. 168; Hunter v. Southam
Inc., [1984] 2 S.C.R. 145; R. v. Duarte, [1990] 1 S.C.R. 30; R.
v. Ferianz (1962), 37 C.R. 37; R. v. Ruddick (1980), 57 C.C.C. (2d)
421; R. v. Duguay, [1989] 1 S.C.R. 93, aff’g (1985), 18 C.C.C. (3d) 289;
R. v. Collins, [1987] 1 S.C.R. 265; R. v. Therens, [1985] 1
S.C.R. 613; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Wong,
[1990] 3 S.C.R. 36; R. v. Sobotiak (1994), 155 A.R. 16; Comeau v. La
Reine, [1992] R.J.Q. 339; Amadzadegan-Shamirzadi v. Polak, [1991]
R.J.Q. 1839; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis,
[1997] 3 S.C.R. 341; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v.
Hebert, [1990] 2 S.C.R. 151; R. v. Dwyer (1924), 18 Cr. App. R. 145;
R. v. Swanston (1982), 65 C.C.C. (2d) 453; R. v. Langille (1990),
59 C.C.C. (3d) 544; Mezzo v. The Queen, [1986] 1 S.C.R. 802; Marcoux
v. The Queen, [1976] 1 S.C.R. 763; R. v. Gagnon (2000), 136 O.A.C.
116; R. v. Tat (1997), 35 O.R. (3d) 641; United States of America v.
Shephard, [1977] 2 S.C.R. 1067; R. v. Charemski, [1998] 1 S.C.R.
679; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; Boudreault v.
Barrett (1998), 219 A.R. 67; Thompson v. Ontario (1998), 113 O.A.C.
82; Reynen v. Canada (1995), 184 N.R. 350; Milgaard v. Kujawa
(1994), 118 D.L.R. (4th) 653; Prete v. Ontario (1993), 16 O.R. (3d) 161;
Deline v. Kidd, [2001] B.C.J. No. 645 (QL), 2001 BCSC 491; Monette v.
Owens (2000), 144 Man. R. (2d) 55; Charemski v. Ontario, [2000] O.J.
No. 5231 (QL); Fiset v. Toronto (City) Police Services Board, [1999]
O.J. No. 3731 (QL); Perron v. Québec (Procureur général), [2000] Q.J.
No. 4700 (QL).
Statutes
and Regulations Cited
Act
respecting Attorney General’s prosecutors, R.S.Q., c. S-35.
Canadian
Charter of Rights and Freedoms, ss. 8 , 24(2) .
Civil
Code of Lower Canada, art. 356.
Civil
Code of Québec, S.Q. 1991, c. 64, arts. 300, 1376.
Code of
Civil Procedure, R.S.Q., c. C-25, art. 94.
Criminal
Code, R.S.C. 1985, c. C-46 .
Authors
Cited
Archambault,
Jean-Denis. “Les sources juridiques de la responsabilité extra-contractuelle de
la Couronne du Québec: variations de droit public” (1992), 52 R. du B.
515.
Archambault,
Jean-Denis. “Les sources juridiques des immunités civiles et de la
responsabilité extracontractuelle du procureur général à raison d’accusations
pénales erronées: le mixte et le mêlé (Québec c. Proulx)” (1999),
59 R. du B. 59.
Butt,
David. “Malicious Prosecution: Nelles v. Ontario: rejoinder – John Sopinka -- [1994] 74
Can. Bar Rev. 366” (1996), 75 Can. Bar Rev. 335.
Canada.
Law Reform Commission. Pretrial Eyewitness Identification Procedures. By
Neil Brooks. Ottawa: The Commission, 1983.
Côté,
Pierre-André. “La détermination du domaine du droit civil en matière de
responsabilité civile de l’Administration québécoise -- Commentaire de l’arrêt
Laurentide Motels” (1994), 28 R.J.T. 411.
Delisle,
Ronald Joseph. Evidence: Principles and Problems, 4th ed. Scarborough,
Ont.: Carswell, 1996.
Garant,
Patrice. Droit administratif, vol. 1, 4e éd. Cowansville,
Qué.: Yvon Blais, 1996.
Garant,
Patrice. “La responsabilité civile de la puissance publique: du clair obscur au
nébuleux” (1991), 32 C. de D. 745.
Giroux,
Pierre, et Stéphane Rochette. “La mauvaise foi et la responsabilité de l’État”.
Dans Service de la formation permanente du Barreau du Québec, Développements
récents en droit administratif et constitutionnel, vol. 119. Cowansville,
Qué.: Yvon Blais, 1999, 117.
Hogg,
Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed.
Scarborough, Ont.: Carswell, 2000.
Immarigeon,
Henriette. La responsabilité extra-contractuelle de la Couronne au Canada.
Montréal: Wilson et Lafleur, 1965.
Klar,
Lewis N. “Recent Developments in Canadian Law: Tort Law” (1991), 23 Ottawa
L. Rev. 177.
Lordon,
Paul. Crown Law. Toronto: Butterworths, 1991.
Pigeon,
Louis-Philippe. Drafting and Interpreting Legislation. Toronto:
Carswell, 1988.
Robinette,
J. J. “Circumstantial Evidence”, [1955] Spec. Lect. L.S.U.C. 307.
Royer,
Jean-Claude. La preuve civile, 2e éd. Cowansville, Qué.: Yvon
Blais, 1995.
Sheppard,
Anthony F. Evidence, 3rd ed. Toronto: Carswell, 1988.
Sopinka,
John. “Malicious Prosecution: Invasion of Charter Interests: Remedies: Nelles
v. Ontario: R. v. Jednynack: R. v. Simpson”
(1995), 74 Can. Bar Rev. 366.
Sopinka,
John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada,
2nd ed. Toronto: Butterworths, 1999.
Walton, F.
P. “The Legal System of Quebec” (1913), 33 Can. L.T. 280.
APPEAL
from a judgment of the Quebec Court of Appeal, [1999] R.J.Q. 398, [1999] R.R.A.
56, [1999] Q.J. No. 373 (QL), setting aside judgments of the Superior Court,
[1997] R.J.Q. 2509, [1997] R.R.A. 1118, [1997] Q.J. No. 2710 (QL); [1997] R.J.Q.
2516, [1997] Q.J. No. 2711 (QL). Appeal allowed with costs, L’Heureux-Dubé,
Gonthier and Bastarache JJ. dissenting.
Christian
Trépanier and Lawrence Corriveau, Q.C., for the appellant.
Claude
Gagnon, Alain Loubier and Carole Soucy, for the respondent.
The
judgment of McLachlin C.J. and Iacobucci, Major and Binnie JJ. was delivered by
IACOBUCCI AND
BINNIE JJ.--
I. Introduction
1 In
1986, the prosecutor determined that there were insufficient grounds to charge
the appellant with the murder of his former girlfriend, France Alain. There was
no doubt that a murder had occurred. It was the prosecutor’s opinion, however,
that there was no reliable identification evidence against the appellant or
anyone else. The prosecution file was closed.
2 Some
five years later, Radio Station CHRC broadcast sensational allegations linking
the appellant to the murder, and the appellant retaliated in January 1991 with
an action for defamation claiming damages of a million dollars against André
Arthur, a journalist of the radio station, and John Tardif, the then retired
police investigator who had worked on the closed file. The appellant had previously
worked as a news reader at CHRC.
3 At
this point, more than eight years after the murder, a journalist at CHRC (the
appellant claims it was Arthur himself) contacted Tardif about a new witness
who allegedly could supply the necessary eyewitness identification. The
witness’s name was Paul-Henri Paquet. According to Paquet’s sworn declaration,
[translation] “all the commotion”
around the case, including the news reports involving Tardif and Arthur, is
what convinced him to come forward. Subsequently, declared Paquet, he saw the
appellant’s picture in a newspaper article about the appellant’s defamation
suit against Tardif and Arthur and was suddenly struck by the eyes of the
appellant whom he allegedly recognized as the man he encountered on the night
of the murder. Paquet declared:
[translation] So at 8 a.m. I decided to go immediately to
radio station CHRC to leave a message for Mr. Arthur and/or Mr. Tardif that I
would probably have something to add to the France Alain case. (I told an
announcer named Mr. Thibeault that the night of the murder someone had said to
me “Don’t go see it, it’s not a nice thing to see.”)
Paquet
also swore that a few days later (evidently through the intervention of someone
at CHRC), he met with Tardif [translation]
“who had taken charge of the case”.
4 Under
our criminal justice system, prosecutors are vested with extensive discretion
and decision-making authority to carry out their functions. Given the
importance of this role to the administration of justice, courts should be very
slow indeed to second-guess a prosecutor’s judgment calls when assessing Crown
liability for prosecutorial misconduct. Nelles v. Ontario, [1989] 2
S.C.R. 170, affirmed unequivocally the public interest in setting the threshold
for such liability very high, so as to deter all but the most serious claims
against the prosecuting authorities, and to ensure that Crown liability is
engaged in only the most exceptional circumstances. Against these vital
considerations is the principle that the Ministry of the Attorney General and
its prosecutors are not above the law and must be held accountable. Individuals
caught up in the justice system must be protected from abuses of power. In
part, this accountability is achieved through the availability of a civil
action for malicious prosecution. As stated by Lamer J. (as he then was) in Nelles,
at p. 195:
. . . 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
allegations in this case address one of those exceptional circumstances where
it has been established on a balance of probabilities that the prosecutorial
office has been found to have been used deliberately for purposes that we
believe were improper and inconsistent with the traditional prosecutorial
function (Nelles, supra, at pp. 196-97). Civil liability for
malicious prosecution is therefore an appropriate remedy.
5 With
all due respect to L’Heureux-Dubé J.’s statement of the application of “public”
common law principles to actions brought in Quebec against the Crown for
malicious prosecution, we prefer the analysis of LeBel J.A. (as he then
was) in the Quebec Court of Appeal ([1999] R.J.Q. 398), which delineated the
respective roles of public law and private law. We think, as well, that his
approach is more consonant with the approach to this issue taken in common law
jurisdictions. However, nothing turns on this doctrinal difference in the
present appeal. Our disagreement with our colleague turns on the facts of this
particular case.
6 It
is important to note that when the Quebec Court of Appeal overturned the
appellant’s conviction on the basis that no properly instructed jury could
reasonably have found him guilty beyond a reasonable doubt, it not only
criticized the trial judge for palpable errors but also pointed out the
speculative and hypothetical nature of the theory which constituted the basis
for initiating proceedings against the appellant: [1992] R.J.Q. 2047, 76 C.C.C.
(3d) 316. In a concluding statement, the Court of Appeal observed that (at
p. 383 C.C.C.):
[translation] . . . the jury’s verdict rests in
part on evidence that the judge should have excluded. We are also of the view
that the jury ended up at its verdict on the basis of inadequate instructions,
in particular on the visual identification evidence and the question of motive.
Finally, we consider that the identification evidence is so lacking in
probative value that it would be unreasonable, even taking into account the
other evidence called by the Crown, to find beyond a reasonable doubt that Mr.
Paquet saw the appellant near the scene of the crime on the evening of October
25, 1982.
7 Like
the trial judge and LeBel J.A., dissenting in the result in the Quebec
Court of Appeal, we find that the record in this appeal suffices to satisfy the
Nelles test because it reveals that: (1) the Crown prosecutor did not
have reasonable and probable cause upon which to found the charges brought
against the appellant, and (2) the prosecution was motivated by an improper purpose
which in law constitutes malicious conduct and intentional fault. Thus, for the
reasons that follow, we are of the view that this is one of the exceptional
cases in which Crown immunity for prosecutorial misconduct should be lifted. We
would therefore allow this appeal.
II. Analysis
8 The
starting point in any criminal prosecution is the presumption of innocence. The
prosecutor must assess, in good faith and without any motive but the
furtherance of the administration of justice, whether the presumption of
innocence can be rebutted in a court of law. This is a practical decision based
on the prosecutor’s experience and knowledge, and on his or her assessment of
all the potentially relevant evidence. A failed prosecution does not without
more – much more – give rise to a viable claim for prosecutorial wrongdoing.
9 As
we have noted above, Nelles, set out four requirements that must be
established on a balance of probabilities by the claimant in an action in
damages based on prosecutorial misconduct in order to avoid the Crown’s
relative immunity against such suits. In this appeal, the first two
requirements, namely that the respondent initiated the prosecution, and that
the prosecution resulted in the appellant's acquittal, are clearly satisfied.
Our disagreement with our colleague relates to the additional two requirements,
namely that the respondent lacked reasonable and probable grounds to prosecute
the appellant, and that the prosecution was tainted with an improper motive.
A. Absence
of Reasonable and Probable Cause
10 The
existence of reasonable and probable grounds was defined for present purposes
in Nelles at p. 193 as follows:
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.
11 The
best evidence that the prosecutor lacked reasonable and probable grounds prior
to 1991 is the prosecutor’s own admission in the stay application that there
was no case to justify the laying of charges at that time. As our colleague
states at para. 163: “He was aware of his role, his responsibilities and
the law, and he closed the file”. The analysis, then, turns to the events of
1991, and to a consideration of what changed the prosecutor’s decision and
resulted in the charge of first degree murder being laid against the appellant
on March 20, 1991. Two pieces of evidence appear to have been critical to that
reversal. They constitute the bulk of the case against the appellant. Firstly,
the eyewitness “identification” by Paquet. Secondly, the prosecutor’s
re-evaluation, in light of Paquet’s evidence, of the conversation between the
appellant and the victim’s father which took place on May 30, 1983 and which
was surreptitiously recorded by the police. We will deal with these items
separately.
(1)
The Evidence of Identification
12 The
critical evidence, from the Crown’s perspective, was the alleged identification
of the appellant by the witness, Paquet. However, the process through which
this identification was carried out was extremely flawed and unusual. As
mentioned, Paquet came forward through the intervention of the defendants in
the defamation action more than eight years after the murder. He claimed to
have seen the probable perpetrator of France Alain's murder just minutes after
she was shot. Although Paquet allegedly reported the encounter to three other
people within hours of the murder, it is not explained why he did not go to the
police eight years earlier. Indeed, even in 1991, rather than going straight to
the police, Paquet went to the CHRC radio station, having been made aware of
the well-publicized defamation action brought by the appellant. Paquet made
this visit after seeing a photograph of the appellant featured in a newspaper
article on February 9, 1991, about the appellant’s initial allegation of
defamation. (The appellant began a second action in defamation after his
conviction was reversed by the Quebec Court of Appeal on August 20, 1992, but
this second action came too late to have any relevance to the present
proceedings.) The appellant says it was Arthur himself who initially sent
Paquet not to the police but to speak to Tardif.
13 We
wish to make it clear that we impugn neither the motives nor the
trustworthiness of Paquet. The issue, simply, is the very limited nature of
what he could honestly say about his encounter with a [translation] “bearded man” on the night in question. Such an
encounter may have happened, but what if anything did it have to do with the
appellant?
14 Paquet
told Tardif that he had identified the appellant’s eyes from the
recently published newspaper photo, eight years after he supposedly saw him
during a momentary encounter at night. Tardif then showed Paquet a photo of the
appellant, but covered all but the appellant’s eyes. Paquet affirmed that these
were the eyes of his “bearded man”, whom he had seen on the night of the
murder. However, when the full face of the appellant was revealed, Paquet
candidly stated that this was not the man he had seen. This was Paquet’s
evidence on this point:
[translation] Yes, at some point we were at the scene of the
incident that I described this morning, earlier, and then at some point, he
[Tardif] had me get into his automobile. Then he said to me: “I’ll show you a
photograph of Benoît Proulx.” Then he said: “You tell me whether or not that
was who you saw.”
Then I immediately told him, I
said: “Do you want to help me out, we can do it this way.” I then said: “Begin
by showing me the eyes, cover everything, and then begin by showing me the eyes
and then afterwards you’ll pull out your photograph.”
He had a white envelope. It was
quite a large photograph. Then he put -- he arranged things so as to show me
just the eyes, and I then said: “It’s my guy’s eyes, again, there, it’s my
bearded guy’s eyes.”
So, when he showed me the
photograph, he had a new permanent, I can say and it was black, a big beard and
it's completely different; they weren't the same glasses. I said: “That’s fine
but it’s not my guy.”
He then had a look like he
wanted to say: “Well, listen, it’s him.”
Well, I said, “No, it’s not
the guy I saw”, after I had recognized only the eyes from the photograph
and I didn’t want to agree, accept it. . . . [Emphasis added.]
15 Tardif
did not disclose the existence of Paquet’s evidence to the police for several
weeks thereafter. The prosecutor was then made aware of Paquet’s existence and
of Tardif’s attempt to implicate the appellant.
16 Once
Paquet’s existence had been disclosed to the authorities, the Crown prosecutor
met with Paquet in the presence of Tardif, and Paquet was shown a series of
eight more photographs of the appellant taken during a labour dispute, in which
the appellant was protesting in front of his radio station. There was no proper
reason for Tardif, with his own separate agenda, to be allowed to be present at
this meeting. There was even less reason for the City of Sainte-Foy then to
hire Tardif as part of the criminal investigation team despite his obvious
conflict of interest.
17 No
photographs of similar-looking people were included in the eight photographs.
If Paquet were to make an identification at all, it had to be of the appellant.
On this point we agree with the observation made in R. v. Dwyer (1924),
18 Cr. App. R. 145, at pp. 147-48, referred to by our colleague at
para. 191, but with respect, it seems to refute rather than support her
conclusion. In that case, Lord Hewart C.J. wrote, at p. 148:
One distinction, however, is
quite clear. It is one thing for a police officer, who is in doubt upon the
question who shall be arrested, to show a photograph to another person in order
to obtain information or a clue upon that matter; it is another thing for a
police officer dealing with witnesses who are afterwards to be called as
identifying witnesses to show to those persons photographs of those whom they
are about to be asked to identify beforehand.
18 Our
colleague suggests that Dwyer does not impugn the Crown Prosecutor’s
conduct in this instance, but rather supports her position because “[t]he
identification of the appellant was merely one element in the body of
circumstantial evidence on which the charge was based” (para. 192).
However, with respect, this understates its importance. The prosecutor needed
to know whether Paquet could provide credible evidence of identity to overcome
the presumption of the appellant’s innocence. It was the prosecutor’s own view
that without Paquet he had no case. It was therefore critical for him to
determine whether or not Paquet could supply the missing evidentiary link in
court. The prosecutor may have been persuaded of the appellant’s guilt. The
question for him in March 1991 was whether he could prove it.
19 Furthermore,
in light of the publicity surrounding the defamation action, Paquet knew
perfectly well the importance attached by Tardif to identifying the appellant
as the “bearded man”. In this case, unlike the situation contemplated by Lord
Hewart C.J., the prosecutor himself was present at this improper identification
procedure.
20 Paquet
then identified the appellant in one of the eight photos, stating that this was
his “bearded man”, whom he had seen on the night of the murder. However, as
pointed out by the judges of the Court of Appeal in the criminal proceedings,
the appellant's eyes, which Paquet claimed were critical to his identification,
were not visible in this particular photograph.
21 The
prosecutor not only admitted at trial that a positive identification of the
appellant was never made but also that this was not possible because the eyes
and beard were the only traits of the appellant that Paquet was ever able to
identify. The prosecutor was familiar with the fundamental rules of eyewitness
identification. He also knew he had to prove identification beyond a reasonable
doubt in order to obtain a proper conviction. His willingness to pursue the
appellant with a charge of first degree murder in these circumstances is
central to the determination of whether this is a case of mere recklessness or
malice.
22 The
deficiencies in Paquet’s evidence must have been obvious to the prosecutor from
the outset, and indeed his view of the matter is shown by his treatment of
Paquet at trial, where he deliberately chose not to ask Paquet to identify the
appellant in the courtroom. He admitted that this was because Paquet could not
do so, seeing as he recognized only the eyes and possibly only the shape of the
eyes of a “bearded man”. An obvious question arises in these circumstances: if
a legitimate, unequivocal or even adequate identification of the appellant had
already been made by Paquet, is it conceivable that he would be entirely
incapable of identifying the appellant in person? The appellant may have
discarded his beard and put on some weight in the intervening years but
Paquet’s identification allegedly centred on “the eyes”, which were the same.
In our view, such a flagrantly inadequate eyewitness identification could not
have served as a legitimate basis for proceeding to trial.
23 Nor,
in our view, do the cases cited by our colleague lend support to what was done
here. In R. v. Swanston (1982), 65 C.C.C. (2d) 453 (B.C.C.A.), the
witness had positively identified the accused as his assailant on previous
occasions (at a line-up and at a preliminary hearing). In the case at bar,
there was no such prior identification. Paquet said only that he encountered a
man with a beard and distinctive eyes at night around the time of the murder
and near the scene of the crime, and came forward more than eight years later.
24 In
Mezzo v. The Queen, [1986] 1 S.C.R. 802, as well, there was strong
identification evidence before the irregularities took place during subsequent
identification sessions. It is important to recall that Wilson J. said in Mezzo
that the improprieties in the line-up do not necessarily destroy otherwise good
evidence. The operative words here are “otherwise good evidence”. Similarly, in
Marcoux v. The Queen, [1976] 1 S.C.R. 763, which is discussed by Wilson
J. in Mezzo, this Court found that the trial judge properly put the
identification evidence to the jury in spite of the problems with its quality
because the complainant actually identified the accused on two occasions at the
police station. In the case at bar, not only were there irregularities that
were so “improper as to be beyond the power of the jury to handle given a
proper direction by the trial judge” (to borrow the words of Wilson J. at p.
833) but no identification of the appellant by the only identification witness,
Paquet, had ever taken place.
25 Even
the majority judges in the Quebec Court of Appeal (Beauregard and
Brossard JJ.A.) strongly disapproved of the manner in which the
investigation was conducted. In fact, in his judgment, Brossard J.A.
condemned the prosecutor for: (1) lending any credibility at all to the
evidence of identification provided by Paquet, and (2) failing to take into
account the probable inadmissibility of the recorded conversation in light of
existing case law. Brossard J.A. added that on both of these points, the
prosecutor was wrong and negligent in carrying out his professional mandate.
(2)
The Recorded Conversation
26 The
prosecutor says that the emergence of Paquet’s evidence caused him to
re-examine the file, and in particular the surreptitiously recorded
conversation between the appellant and the victim’s father. There were two
problems with reliance on the recorded conversation. Firstly, the prosecutor
must have known it was not properly admissible. Secondly, even if admissible,
it proved nothing.
27 In
her analysis, L’Heureux-Dubé J. takes issue with the Court of Appeal's ruling
in the criminal trial that the recordings should have been declared
inadmissible under s. 24(2) of the Canadian Charter of Rights and
Freedoms . She emphasizes that, at the time this conversation was recorded
in 1983, the law had yet to develop to the point that the prosecutor would have
known that the tapes would be inadmissible. Further, by the time of the
criminal proceedings in 1991, a trial judge would still have the discretion,
pursuant to s. 24(2) of the Charter , to determine whether the
admission of this evidence would bring the administration of justice into
disrepute and thus, to find it admissible proof.
28 We
respectfully disagree with this reasoning. In R. v. Duarte, [1990] 1
S.C.R. 30, this Court clearly held that the surreptitious electronic
surveillance of an individual by an agency of the state constitutes an
unreasonable search or seizure under s. 8 of the Charter . On this
authority, it is clear that, by the time criminal charges were brought in 1991,
the Crown prosecutor would have known, or at least should be taken to have
known, that unauthorized police recordings of the appellant’s communications
made without his knowledge or consent were not proper evidence.
29 Further,
even if the tapes were admissible, the Crown would have known that they had no
probative value. At best, they contained the appellant’s speculations in regard
to the crime, which were made in response to continued prompting by the victim’s
father. In addition, within this conversation the appellant denounced the
killing and said he himself was incapable of such an act. He thus explicitly
denied any complicity in the crime. Given these considerations, it is clear
that the tapes, in and of themselves, could not serve to establish reasonable
and probable cause for the prosecution initiated against the appellant. The way
in which this recording was manipulated by the prosecutor before the jury will
be discussed below in connection with malice or improper purpose.
(3)
Other Factors
30 Several
other factors further reveal the absence of reasonable and probable cause for
the appellant’s prosecution. To begin, the prosecution did not advance any
proof of motive. As LeBel J.A. noted in his reasons at the Court of
Appeal, the Crown had no evidence to support its theory that the appellant was
enraged after his relationship with the victim ended (p. 428). Further,
there was no evidence that the appellant left work at any time on the night of
the murder, or proof of the allegation that he knew facts and details about the
murder before other media did. Finally, the police investigation never produced
any weapon or evidence to suggest that the appellant owned a firearm.
31 To
say that a prosecutor must be convinced beyond a reasonable doubt of an accused
person's guilt before bringing charges is obviously incorrect. That is the ultimate
question for the trier of fact, and not the prosecutor, to decide. However, in
our opinion, the Crown must have sufficient evidence to believe that guilt could
properly be proved beyond a reasonable doubt before reasonable and probable
cause exists, and criminal proceedings can be initiated. A lower threshold for
initiating prosecutions would be incompatible with the prosecutor’s role as a
public officer charged with ensuring justice is respected and pursued. See Boucher
v. The Queen, [1955] S.C.R. 16; R. v. Bain, [1992] 1 S.C.R. 91; Nelles,
supra; R. v. Charest (1990), 28 Q.A.C. 258; and R. v. S. (F.)
(2000), 47 O.R. (3d) 349 (C.A.). We think it must have been clear to the
prosecutor on March 20, 1991, when he authorized the charge of first degree
murder against the appellant, that this evidence could not properly have
resulted in a conviction.
32 Our
colleague relies greatly on the facts that the preliminary inquiry judge
concluded there was sufficient evidence to send the appellant to trial; that
the trial judge did not direct a verdict of acquittal; and that the jury
convicted. However, these events post-dated the prosecutor’s decision, and were
in each instance decisions governed by different considerations. More
importantly, the trial was, as found by the unanimous Court of Appeal in the
criminal case, deeply flawed. In our opinion, the prosecutor cannot bootstrap
his own position on the basis of flawed court decisions that were swept away by
the acquittal directed by the Court of Appeal.
33 Nor
can the prosecutor rely on consultations that he had with colleagues and
superiors. He knew more about the case than they did and, as the holder of an
important office under the Criminal Code, R.S.C. 1985, c. C-46 , the
decision to lay the charge was his and his alone: R. v. Campbell, [1999]
1 S.C.R. 565, at para. 33.
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 appellant’s 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.
B. Malice
or Improper Purpose
35 In
addition to an absence of reasonable and probable cause, a suit brought
pursuant to an allegedly abusive prosecution may succeed only where malice or
an improper purpose is shown. This criterion was discussed by Lamer J. in Nelles,
supra. Writing for a majority of this Court, Lamer J. noted that cases
of malicious prosecution involve serious allegations, which relate to the
misuse and abuse of the criminal process and the office of the Crown Attorney.
He stated (at pp. 193-94 and 196-97):
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”.
. . .
We are not dealing with merely
second-guessing a Crown Attorney’s 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.
[Emphasis in original.]
As such,
a suit for malicious prosecution must be based on more than recklessness or
gross negligence. Rather, it requires evidence that reveals a willful and
intentional effort on the Crown’s part to abuse or distort its proper role
within the criminal justice system. In the civil law of Quebec, this is
captured by the notion of “intentional fault”. The key to a malicious
prosecution is malice, but the concept of malice in this context includes
prosecutorial conduct that is fueled by an “improper purpose” or, in the words
of Lamer J. in Nelles, supra, a purpose “inconsistent with the
status of ‘minister of justice’” (pp. 193-94).
36 The
trial judge in this case held that the prosecutor acted for an improper motive.
It was the task of the trial judge, Rioux J., to find the facts, and in our
view, after looking at all the circumstances, his findings are entitled to
deference that the majority of the Court of Appeal was not prepared to give. In
short, in our opinion, the Court of Appeal wrongly interfered with the findings
of the trial judge.
37 In
the case at bar, various significant factors stand out as indicators of an
improper purpose underlying the Crown’s decision to initiate proceedings
against the appellant. In discussing these factors, we do not wish to emphasize
the importance of one over another. In the final analysis, it is the totality
of all the circumstances that are to be considered in cases of this kind.
38 At
the outset, the absence of reasonable and probable cause, which has been
discussed above, is particularly noteworthy. The Crown prosecutor ignored the
probable inadmissibility and lack of probative value of the recorded communications
between the appellant and the victim’s father. He also relied on the extremely
tenuous identification evidence offered by Paquet as the primary basis for
reopening the investigation and prosecuting the appellant. All of this occurred
in the context of the well-publicized million dollar defamation action brought
by the appellant. In these exceptional circumstances, in our opinion, no
prosecutor acting in good faith would have proceeded to trial on a first degree
murder charge with such substandard and incomplete proof. The decision to
recruit the retired policeman, Tardif, to assist in the resurrected prosecution
file, notwithstanding Tardif’s status as a defendant in the appellant’s
defamation suit, is further evidence of malice in the sense of the prosecutor’s
apparent indifference to the improper mixing of public and private business.
39 The
manner in which the prosecutor dealt with the surreptitiously recorded
conversation between the appellant and the victim’s father further points to an
improper purpose. We must assume that the prosecutor knew the relevant law, and
in particular that the surreptitiously recorded conversation was not properly
admissible (Duarte, supra). His decision to proceed regardless is
evidence of malice, and his success in persuading the trial judge to
erroneously admit the improper evidence is, if anything, an aggravating
circumstance.
40 During
the recorded conversation, in response to prodding by the victim’s father, the
appellant speculated on the type of person who may have committed the murder
and, as mentioned earlier, expressly denounced the act in no uncertain terms.
The prosecutor, however, invited the jury to replace the word “he” in the
appellant’s conversation with “I”, thereby creating the illusion that the
appellant was speaking about the murder in the first person rather than in the
third and thus confessing to be the killer, as follows:
[translation] If we don’t put his words into the third
person, as he did so well, we can say the following, keeping in mind that these
words came out of his own mouth during his conversation with Mr. Alain:
“France made a mistake at one
point that I understood to be out of spite.”
Now I’ll replace “he” with “I”.
“Then something mean was done to
me, that was premeditated, then it was something really insulting.
Because I did that, I mean, I’m
a guy who, I don’t know, I’ve always had that idea in my mind, and I don't know
why I can't get rid of it.”
41 As
found by the Court of Appeal in the criminal case, this manipulative approach
effectively distorted the appellant’s words, and improperly transformed them
into a full confession of guilt. The Crown’s actions thus were more than
careless. Rather, they represented an active effort to obtain a conviction at
any price. This ran counter to the nature and spirit of the Crown Attorney’s
role, which was aptly described by Rand J. in Boucher, supra, at
pp. 23-24, in a well-known passage:
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. [Emphasis added.]
42 The
tangled relationship between the criminal proceedings initiated against the
appellant, and the appellant’s 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 prosecutor’s office.
43 One
might ask why the prosecutor did not question Tardif’s 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 prosecutor’s
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 appellant’s 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
Tardif’s manipulation of the evidence and the irregularities that took place
during the 1991 investigation process.
44 To
recapitulate on the question of motive, it was the prosecutor’s opinion in 1986
that there were no reasonable and probable grounds to lay the murder charge. The
problematic evidence of Paquet and the “reconsidered” evidence of the
surreptitious police recording did not, on any reasonable view, remedy the
obvious deficiencies. What then motivated the prosecutor? If it was a simple
lapse of judgment, the appellant has no cause of action. But there is more.
Despite knowledge of the private interest of CHRC and Tardif in defending the
defamation action, the prosecutor did not keep himself at arm’s length but
invited Tardif, the civil defendant, back on to the criminal prosecution team.
The key witness, Paquet, was interviewed with Tardif’s participation. This was
despite the prosecutor’s knowledge of Tardif’s previous efforts to obtain from
Paquet an identification that Paquet could not in truth make. The prosecutor might
have been persuaded of the appellant’s guilt, but he must have known that he
lacked the credible evidence to prove it. This leads, on a balance of
probabilities, to one of two conclusions. Either the prosecutor allowed his
office to be used in aid of the defence of a civil defamation action, which is
a perversion of powers (détournement de pouvoirs) and an abuse of
prosecutorial power, and thus malice in law; or, the prosecutor decided in 1991
to go after the appellant to secure a conviction at all costs, despite his
earlier decision that there was no case for the appellant to answer, and was
quite willing to harness the tainted assistance of Tardif to this end. This was
not only based on tunnel vision, but also tainted tunnel vision. In either
case, there was a flagrant disregard for the rights of the appellant, fuelled
by motives that were entirely improper. The facts of this case are thus highly
exceptional. Nelles, supra, established a generous boundary
within which prosecutors acting in good faith have immunity despite bad
decisions. The mixed motives of the prosecutor in this case carried him across
that boundary. Unless Nelles is to be read as staking out a remedy that
is available only in theory and not in practice, the appellant was entitled to hold
the prosecutor accountable in the civil action brought following the abusive
prosecution.
45 Considering
the prosecutor’s actions in their entirety, we would therefore conclude that
they amount to “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’”. His conduct constituted an abuse of prosecutorial power, and an
attempt to mislead the court for the purposes of securing a conviction. In our
view, this amounts to malice or, as Lamer J. stated in Nelles, a
perpetuation of “a fraud on the process of criminal justice” (p. 194). As
such, we agree with the following passage articulated by LeBel J.A. in his
dissenting opinion in this case (at p. 431):
[translation] The prosecutor committed one illegal act after
another, contrary to the principles of criminal law and the rules of procedure
of the judicial system. Although he should have known the probable consequences
of his acts, he abused his powers as an officer of the court and pursued an
unlawful goal. That unlawful goal and thus bad faith may be inferred from the
record as a whole. It would appear from both the circumstances prior to the
laying of the complaint and from the conduct of the case that the objective was
to obtain a conviction despite the rules of law, based on a deep-seated belief
as to the accused’s guilt that was not justified by an objective review of the
case.
III. Disposition
46 For
the foregoing reasons, we would allow the appeal, set aside the judgment of the
majority of the Quebec Court of Appeal, and restore the order of Rioux J.
on the responsibility of the Crown, and the damages award ordered by
Letarte J. The appellant is entitled to his costs in this Court and in the
courts below.
English
version of the reasons of L’Heureux-Dubé, Gonthier and Bastarache JJ. delivered
by
L’Heureux-Dubé
J. (dissenting) –
I. Introduction
47 The
appellant brought an action for damages against the respondent, the Attorney
General of Quebec, following his acquittal by the Quebec Court of Appeal on a
charge of first degree murder. This appeal invites us to determine what is the
regime of immunity and of extra-contractual civil liability applicable in
Quebec law to the Attorney General of Quebec and Crown attorneys in respect of
malicious prosecutions. More specifically, we must decide whether Nelles v.
Ontario, [1989] 2 S.C.R. 170, applies in the Quebec civil law context, and
if so, to what extent.
48 As
regards the duality of the legal sources of Quebec law, L.-P. Pigeon (later
judge of the Supreme Court of Canada) observed that “[n]ot enough is made of
the fact that Québec is not purely and simply a civil-law province; it is a
civil-law province in private law but not in public law” (Drafting and
Interpreting Legislation (1988), at p. 65). The issue in this case concerns
the public law/private law debate.
II. Facts
49 In
order to determine the extent of the respondent’s liability, should the
respondent be found liable, it will be necessary to examine in detail the facts
out of which the criminal charge against the appellant arose, as well as the
evidence introduced by the prosecution at trial. To avoid repetition, I will
set out here only the facts essential for the proper understanding of what
follows.
A. The
Criminal Charge
50 On
October 25, 1982, France Alain, a mechanical engineering student at Laval
University in Québec, was seriously wounded in the right hip by gunshot. Taken
to hospital, she died a few minutes later.
51 On
March 20, 1991, after a long and painstaking investigation, the Quebec Crown
attorney authorized the laying of a charge of first degree murder against the
appellant. On November 10, 1991, after a trial by judge and jury, the appellant
was convicted as charged, and sentenced to life in prison without eligibility
of parole for 25 years.
52 The
appellant appealed his conviction, and on August 20, 1992, the Quebec Court of
Appeal, in a unanimous decision rendered per curiam, set aside the
guilty verdict and entered a verdict of acquittal: R. v. Proulx, [l992]
R.J.Q. 2047, 76 C.C.C. (3d) 316. In its decision, the Court of Appeal pointed
out errors committed by the trial judge and concluded that [translation] “in the present case, a
properly instructed jury ‘could not reasonably have decided that the accused
was guilty beyond a reasonable doubt’” (p. 383 C.C.C.).
B. The
Civil Action
53 Following
his acquittal, the appellant sued the Attorney General of Quebec, essentially
claiming serious errors which had vitiated the trial as pointed out by the
Court of Appeal. Essentially, the appellant claimed that such a serious charge
was laid without reasonable and probable grounds, and with malice.
54 By
a first judgment dated August 7, 1997, the Quebec Superior Court found the
respondent liable. In a subsequent judgment, the quantum of damages was
established at $1,154,747.86; a judgment was entered against the Attorney
General for that amount.
55 On
appeal, on February 11, 1999, that judgment was set aside by a majority of the
Court of Appeal and it is that decision that is now being appealed before us.
III. Judicial
History
56 To
avoid repetition, I will refer here only to the judgments in the civil action.
The verdicts in the criminal case are closely related to the facts that will
have to be examined in detail when dealing with the extra-contractual civil
liability of the Attorney General.
A. Superior
Court, [1997] R.J.Q. 2509 (Extra-contractual Civil Liability)
57 With
only passing reference to the Quebec regime governing the extra-contractual
civil liability of the Attorney General for malicious prosecutions, Rioux J.
relied almost entirely on the reproaches directed by the Court of Appeal to the
trial judge when quashing the verdict of first degree murder. He concluded that
[translation] “the Crown charged
the plaintiff based on suspicion, supposition and conjecture, and did so after
relying on unlawful interrogations in which laid real traps. The Attorney
General must, therefore, be held liable for the acts of his agents who approved
and agreed to the police investigation conducted in this case, who went so far
as to take part in it, and who decided to go ahead despite the flimsy nature of
the evidence they had before them” (p. 2515).
B. Superior
Court, [1997] R.J.Q. 2516 (Quantum)
58 Since
the parties had agreed to sever the process on account of the illness of the
trial judge, Letarte J. took over the case and assessed the quantum of damages at
$l,154,747.86, as follows (at p. 2525):
Expenses:
$115,440.00
Loss
of earnings capacity: $814,347.86
Moral
damages: $250,000.00
59 Due
to an error in addition, the total should read $1,179,787.86.
60 Letarte
J., therefore, ordered the Attorney General of Quebec to pay that amount, plus
interest and the additional indemnity provided by the Quebec Civil Code.
C. Court
of Appeal, [1999] R.J.Q. 398
61 Each
of the three judges of the Court of Appeal wrote separate reasons. While LeBel
J.A. dissented as to the extra-contractual liability of the Attorney General of
Quebec for malicious prosecution, he wrote the main opinion concerning the
regime applicable in this area in Quebec law. Although with significant
differences, his two colleagues agreed generally with him on this point, their
disagreement related primarily to the application of the Nelles decision,
supra, to the facts of the case.
(1) The
Quebec Law Regime Governing the Extra-contractual Civil Liability of the
Attorney General of Quebec for Malicious Prosecution
(a)
LeBel J.A.
62 LeBel
J.A. conducted an exhaustive analysis of the applicable law. He first examined
the role of the Attorney General of Quebec in the Canadian criminal justice
system and, more specifically, under the provisions of An Act respecting
Attorney General’s prosecutors, R.S.Q., c. S-35. He concluded that, despite
the diversity and complexity of the duties assigned to them, prosecutors
perform judicial or quasi-judicial functions (at p. 412):
[translation] The multiple and complex functions of
prosecutors, who examine, authorize, conduct or, where appropriate, withdraw charges,
is not easily characterized in a comprehensive and definitive manner. The fact
that those duties are closely connected and are of a discretionary nature has
generally led the courts to characterize the function of prosecutors as
judicial or quasi-judicial.
He went
on to do an equally detailed analysis of the duties of prosecutors in relation
to the laying of a criminal charge, and concluded that only [translation] “where there are
sufficient grounds, which are characterized as reasonable and probable both by
judicial practice and by the directives governing the conduct of Crown
attorneys”, must the decision to authorize prosecutions be made, based on
“factors that are objectively verifiable and the probable state of the law” (p.
415).
63 LeBel
J.A., as he then was, then turned to the rules of extra-contractual civil
liability in Quebec law, and based his analysis on Laurentide Motels Ltd. v.
Beauport (City), [1989] 1 S.C.R. 705, concluding that the function of the
prosecutor was determined primarily by public law and the legal rules that
apply to [translation] “political
authority” (p. 410). He made a distinction between purely administrative
decisions and policy or “political” decision, the latter being protected by
relative immunity from civil liability actions, while the former are subject to
the ordinary rules of civil liability in Quebec. LeBel J.A. observed that
public law has moved away from the rule of absolute immunity, recognizing that
suits may be brought against the state, its immunity being only relative.
64 At
this point, LeBel J.A. considered Nelles, supra, a common law
decision which, in his opinion, applied in Quebec public law, namely the
relative immunity it confers on the state for the actions of its subordinates.
On the other hand, because that common law decision, in his view, was based on
the tort of malicious prosecution, a common law tort which he characterized as
private law foreign to the Quebec law of extra-contractual civil liability, he
applied the Quebec civil law as it relates to the concept of fault.
65 After
comparing the concepts of gross negligence or deliberate fault to the types of
faults for which, according to Nelles, the state may be found liable
for, he concluded (at p. 425):
[translation] While the definitions generally assigned to the
expressions “malice”, “bad faith” and “gross negligence” are used in different
contexts, they appear to be substantially the same as the expressions used in
civil law. One common point appears to emerge. In Quebec, as in the common law
provinces, it has been held that there is a distinction between the reckless
and careless conduct associated with gross fault (gross negligence) and
malicious or malevolent conduct or conduct in which a blameworthy state of mind
was apparent.
Accordingly,
in his view, the absence of reasonable and probable cause when laying a charge
amounts to gross negligence in civil law, and, when combined with malice, it
entails the extra-contractual civil liability of Crown attorneys. In his
opinion, the Quebec civil law then corresponds to the common law test of Nelles
(at p. 425):
[translation] . . . this solution recognizes a
sphere of civil liability, by denying immunity in situations where malice in
the exercise of prosecutorial functions or deliberate perversion of the
objectives of those functions can be established.
(b)
Beauregard J.A.
66 Beauregard
J.A., although stating that he generally agreed with LeBel J.A. with respect to
the regime of extra-contractual civil liability applicable in Quebec civil law
in relation to malicious prosecution, clearly dissociated himself from the
conclusion reached by LeBel J.A. on the question of the extent to which Nelles
applies in Quebec. He adopted the integral test laid down in Nelles on
the question of immunity, and thus on the liability of the Attorney General in
the case. Unlike LeBel J.A., he did not resort to the concepts of fault in
Quebec civil law. According to Beauregard J.A. (at p. 434):
[translation] . . . in order for an action in
damages upon an acquittal to succeed, the plaintiff must prove not only that he
was prosecuted when there were no reasonable and probable grounds for doing so,
but also that in authorizing the charge the prosecutor exhibited malice, a
concept that Lamer J. defined as follows:
. . . a fraud on the
process of criminal justice and in doing so has perverted or abused his office
and the process of criminal justice.
67 He
criticized the trial judge for [translation]
“failing to properly apply Nelles and asking whether the prosecutor
exhibited malice in the sense of Nelles” (p. 434).
(c)
Brossard J.A.
68 Brossard
J.A. endorsed LeBel J.A.’s analysis and, like him, adopted the concept of fault
as understood in civil law, while agreeing with his two colleagues that the Nelles
test applies in Quebec. He held that the prosecutor was faulty and
negligent in the performance of his professional duties. However, he concluded
that the degree of fault alleged against the Crown attorney did not reach the
threshold needed in order for the Attorney General to be liable in
extra-contractual civil liability: [translation]
“I do not agree with him [LeBel J.A.] regarding the application of the legal
principles he stated to the facts of this case. On this conclusively important
aspect of the case, I share the opinion of my colleague Beauregard J.A.” (p.
435). Later in his reasons, he added (at p. 436):
[translation] First, although the Crown has an obligation in
criminal cases to prove the accused’s guilt beyond a reasonable doubt, the
burden in the civil trial is on the respondent to establish, by a preponderance
of evidence, that the prosecutor committed a fault or faults that may be
characterized as gross and malicious, or as being the result of reckless
conduct. In other words, the respondent had to establish either malice on the
prosecutor’s part or conduct that deliberately disregarded the ultimate
consequences of a criminal charge that he knew or ought to have known could not
stand up to an objective analysis of the evidence.
(2)
Application of the Law to the Facts of the Case
69 After
a detailed analysis of the evidence and of the Court of Appeal’s decision
acquitting the appellant, LeBel J.A. wrote that [translation] “faults were committed by the prosecutor. The
nature of those faults was such that he could not invoke the relative immunity
recognized at common law” (p. 433). He concluded that the Attorney General’s
appeal had to be dismissed.
70 His
two colleagues, Beauregard and Brossard J.A., allowed the appeal essentially on
the ground that the facts, which were uncontested, as Beauregard J.A.
mentioned, [translation] “cannot
provide sufficient basis for Proulx’s action in damages” (p. 435).
IV. The
Issue
71 The
central issue in this case, as I noted at the outset, concerns the
determination of which legal regime is applicable in Quebec as regards the
extra-contractual civil liability of the Attorney General of Quebec and Crown
attorneys for malicious prosecutions.
72 In
order to dispose of the aforementioned issue, it is necessary to briefly review
the sources of public law in Quebec and the role of the Attorney General and
Crown attorneys in Canada and in Quebec in relation to criminal prosecutions,
and make a more thorough examination of the immunity they enjoy under Quebec
law in relation to malicious prosecutions. The application of the Nelles decision,
supra, to Quebec is central to this exercise.
V. Analysis
A. Legal
Sources of Public Law in Quebec
73 No
one disputes in this case that public law in Quebec derives from English law,
as it has been amended over the years by statutes and case law. Both doctrine
and jurisprudence have dealt with the subject at length. For a non-exhaustive
study of the question, see, as to the doctrine: F. P. Walton, “The Legal System
of Quebec” (1913), 33 Can. L.T. 280, at p. 281 (“where a question is one
which belongs to the public law it is the law of England which must supply the
governing principle; and upon such matters the law of Quebec does not differ
from that . . . of any other province of Canada”); P. Garant, Droit
administratif (4th ed. 1996), vol. 1, p. 10 ([translation] “the basis of our public law, in both Canada and
Quebec, is the common law, which was imported from England at the time of the Conquest,
as it has been amended by local statute and case law”). As for jurisprudence,
see: Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2
S.C.R. 618, at p. 644 (“The source of this law is the common law, the
principles of which are not set aside by statutes which do not mention it”); Senez
v. Montreal Real Estate Board, [1980] 2 S.C.R. 555, at p. 562 (“It need
hardly be mentioned that in Quebec administrative law is of English origin”); Attorney
General of Quebec v. Labrecque, [1980] 2 S.C.R. 1057, at p. 1081;
2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3
S.C.R. 919, at para. 81, per L'Heureux-Dubé J. (“the common law
generally applies in Quebec public law, subject to specific legislative
amendments”).
74 The
following passage from Pigeon, supra, at p. 65, is particularly relevant
to this case:
[In Langelier v. Giroux
(1932), 52 B.R. 113] [l]ibel proceedings had been instituted against a witness
at a preliminary hearing. . . . The question at bar was whether the
witness’s immunity was absolute or relative. . . . The Court of
Appeal decided that the matter . . . was one not of civil law but of
public law. It is true that libel is governed by civil law, under which it is
an offence. It was decided, however, that the privileges arising from public
law are public law, and the witness’s privilege is one of these. It was
consequently decided that the witness’s privilege was governed by common law:
common law, it was specified, as it existed in 1774.
At p. 67,
the author discusses Alliance des Professeurs catholiques de Montréal v.
Labour Relations Board of Quebec, [1953] 2 S.C.R. 140, as follows:
. . . it was decided
that the rule of audi alteram partem . . . is a principle
which, although not written down anywhere, must be applied. It is obviously a
common-law rule, and it was considered a matter of public law, since it
affected the court’s jurisdiction. In other words, while labour legislation is
in principle considered civil law, the constitution of a court with
jurisdiction in labour matters is considered public law because – and here is
where the Court of Appeal decision in Langelier v. Giroux
. . . comes into play – the constitution of the courts, and the
rules of immunity, are considered public law, not private law.
75 Accordingly,
a brief review of sources of law in Quebec is in order, as this Court did in a
different context, although that context is not applicable here: Laurentide
Motels, supra, at pp. 737, 739-40 and 741:
The Quebec Act of 1774
sealed the fate of the two major legal systems that would govern the law
applicable in Quebec. French civil law as it stood before 1760 with its
subsequent amendments in Quebec for everything relating to property and civil
rights, and the common law as it stood in England at that time, and as
subsequently amended, for what related to public law.
.
. .
[T]he common law which applies
in Canada in the area of public law, in criminal as in administrative law, in
the absence of legislation excluding it, is the common law as subsequently
amended by statute and case-law. . . .
In everything not related to
property and civil rights, then, common law is the fundamental law in the
Province of Québec. [Pigeon, supra, at p. 66.]
.
. .
Public law has its origin in the
common law, and common-law decisions must thus be examined to determine the
state of public law in the area applicable in Canada.
The nature and scope of the
rules of public law and case law governing the liability of municipalities are
particularly important here, where the dividing line between public and private
law is crucial. This task is made all the more difficult as, at least
initially, the common law courts made no clear distinction between public and
private law, which are both derived from the same source, the common law.
76 Further,
the following comments of Beetz J. in that case are particularly relevant to
this case (at p. 721):
The public law of Quebec is
acknowledged to be composed of two elements: statute and the common law.
. . .
The second component of the
public law is the common law. Two clarifications must be made at this point.
First, only that part of the common law which is of public character is
applicable. Because the common law makes, in principle, no distinction between
public and private law, the identification of the “public” common law can be a
difficult task. Nonetheless, because Quebec is a jurisdiction of two juridical
regimes, the civil law and the common law, the identification must be made.
Second, it is the common law as it exists at present that is applicable in
Quebec under art. 356 C.C.L.C.
(See also
2747-3174 Québec Inc., supra, at paras. 81-84, per
L’Heureux-Dubé J.)
77 Professor
J.-D. Archambault (“Les sources juridiques de la responsabilité
extra-contractuelle de la Couronne du Québec: variations de droit public”
(1992), 52 R. du B. 515), commenting on Laurentide Motels, supra,
stated (at p. 537):
[translation] The public law-private law dichotomy, which at
first glance appears elementary, creates serious problems in terms of
definition and application. The Quebec legal profession, however, like the
profession elsewhere, does not have the option of ignoring or avoiding those
problems. First, our history and our political institutions have bequeathed
them both to us: the public common law, which comes from English roots, and the
private civil law, which is continental and French by derivation. And neither
of those root sources should infringe on its neighbour’s domain, if it is not
to risk jeopardizing the other’s integrity.
78 I
am thus in complete agreement with LeBel J.A. on this point when he states (at
pp. 416-17):
[translation] . . . Quebec public law still seems to
recognize the existence of a number of immunities that derive from the common
law. They are precluded only where the legislature has demonstrated a clear
intention to do so. . . .
Apart from the legislation, we
must then look to the principles of public law, which include the rules of the
common law relating to immunity.
79 Given
this brief overview of sources of public law applicable in Quebec, which are
not disputed in this case, I now turn to the role of the Attorney General in
Canadian and Quebec criminal law, similarly not in debate in this case.
B. The
Role of the Attorney General in the Criminal Law
80 It
is not disputed, either in Quebec or in this appeal, that the role of the Attorney
General of Quebec and of the Crown attorneys is a matter of public law.
81 LeBel
J.A. did a remarkable and very thorough study on this point, and I adopt it
without hesitation. I would like to quote some extracts, which seem, in my
view, to put that role in its proper context for the purposes of this appeal
(at pp. 411-12):
[translation] The Attorney General is traditionally
responsible for administering justice and for initiating or terminating
criminal and penal prosecutions. He also acts as the representative of
the Crown in the courts and in various criminal proceedings. Those functions
give him the status of constitutional guardian of the social peace, who has a
duty to ensure that crimes and violations of the law are punished (Canada. Law
Reform Commission. Criminal Procedure: Control of the Process. Ottawa:
The Commission, 1975. Pp. 12-14).
.
. .
The function of screening or
authorizing prosecutions arises at a particularly sensitive point in criminal
law enforcement. That is the point at which it is decided whether a criminal
proceeding will be initiated against an individual. It is the job of the
prosecutor to examine charges and to authorize them where there are reasonable
and probable grounds that an offence has been committed.
.
. .
The Attorney General and the
Attorney General’s prosecutors are the guardians of the public interest, and
assume a general responsibility for the efficient and proper functioning of the
criminal justice system. Their role is not limited to that of private counsel
who is responsible for an individual case (Canada. Law Reform Commission.
Controlling Criminal Prosecutions: the Attorney General and the Crown
Prosecutor. Ottawa: The Commission, 1990. Pp. 18-19).
(See: J.
Sopinka, “Malicious Prosecution: Invasion of Charter Interests:
Remedies: Nelles v. Ontario: R. v. Jedynack: R.
v. Simpson” (1995), 74 Can. Bar Rev. 366; D. Butt, “Malicious
Prosecution: Nelles v. Ontario: rejoinder – John Sopinka – [1994] 74 Can. Bar Rev. 366”
(1996), 75 Can. Bar Rev. 335.)
82 I
shall return later to this aspect of the analysis, which deals with the duties
and obligations of the Attorney General and Crown attorneys in criminal
prosecutions, more appropriately examined when applying the law to the facts of
the case.
83 This
brings us to the crux of this case: the analysis of the extra-contractual civil
liability of the Attorney General for malicious prosecutions in Quebec law.
C. The
Extra-contractual Civil Liability of the Attorney General and Crown Attorneys
in Relation to Malicious Prosecutions
84 The
regime of liability which applies to the Crown is closely related to the rules
governing relative or absolute immunity enjoyed by the Crown since time
immemorial. It is clear that if the Crown enjoys absolute immunity from
extra-contractual civil liability, both in private and public law, it cannot be
successfully sued even for malicious prosecutions. On the other hand, if the
Crown enjoys no immunity and is, in that respect, equal to any other
respondent, as has been argued in the past, in both private and public law,
there is nothing to prevent it from being sued for any type of
extra-contractual civil liability. Is there a distinction to be made in that
regard between civil liability as a matter of private law and as a matter of
public law? If so, what of immunity? If there is immunity, does that immunity
apply to both the Crown and the Attorney General and Crown attorneys? In the
affirmative, is that immunity absolute or relative, and is there a distinction
in that regard between the Crown and the Attorney General in the case of
malicious prosecutions?
85 It
is from this perspective that I propose, first, to identify the sources of
Crown immunity and to briefly describe how that immunity has evolved over the
centuries, in order to determine the extent to which Nelles, supra,
modified the rules of immunity. I shall then consider the extent to which that
decision applies in Quebec public law, and consequently its impact on the
liability of the Attorney General of Quebec and Crown attorneys in relation to
malicious prosecutions.
(1)
Crown Immunity
86 I
propose to only briefly review the major phases of this almost millennium-long
history since, here again, the historical aspect is not in dispute and given
that there is a wealth of doctrine and jurisprudence on the subject. (See on
this point P. W. Hogg and P. J. Monahan, Liability of the Crown (3rd ed.
2000); P. Lordon, Crown Law (1991); The King v. Cliche, [1935]
S.C.R. 561; McArthur v. The King, [1943] Ex. C.R. 77; The King v.
Anthony, [1946] S.C.R. 569; R. v. Canadian Broadcasting Corp.,
[1958] O.R. 55 (C.A.); R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551;
Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2
S.C.R. 1015; Alberta Government Telephones v. Canada (Canadian
Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225.)
87 In
“Les sources juridiques de la responsabilité extra-contractuelle de la Couronne
du Québec: variations de droit public”, supra, at p. 517, Professor
Archambault traces [translation]
“the English genesis of the prerogative” which, in relation to tort liability,
was expressed in the maxim that at one time became virtually axiomatic, “The
King can do no wrong”, to the point that [translation]
“as political and constitutional mores changed, the concept of prerogative grew
to encompass a range of situations”.
88 According
to H. Immarigeon, La responsabilité extra-contractuelle de la Couronne au
Canada (1965), at p. 51, quoted by Professor Archambault in his article, supra,
[translation] “whenever a case
that involves prerogative must be decided, we must look to the principles of
English law, having regard, however, to the Canadian statutory provisions that
may have affected them, whether by amending them or by eliminating them”.
89 Professor
Archambault goes on to say (at pp. 519-20):
[translation] The English law of prerogative was naturally
incorporated in Canadian law at the time of the Conquest in 1760. Her Majesty’s
rights and privileges could then be exercised in the Colony in the same way as
in the mother country, unless they were eliminated or modified by local
legislation. A century later, the preamble to the Constitution Act, 1867 expressed
the desire of the participating provinces to be federally united “with a
Constitution similar in principle to that of the United Kingdom”. The House of
Lords later held that the prerogative applied for the benefit of the provinces
as well as the central government. Quebec had expressly recognized this legal
heritage in art. 9 C.C.L.C.: “No act of the legislature affects the
rights or prerogatives of the Crown, unless they are included therein by
special enactment.” Accordingly, absent legislation to the contrary, Quebec
civil law as codified in 1866 did not run counter to the prerogative in public
law. Thus in 1867 the Crown in Quebec enjoyed the prerogatives found in English
public law, and more specifically immunity from prosecution and from
proceedings in tort. The two prerogatives, which are separate but related, have
been eroded, little by little, by the legislature and courts of Quebec
together, and have finally become completely blunted. This metamorphosis of the
law of the Crown in Quebec was accomplished on the foundation of British law.
90 Professor
Archambault, supra, at p. 530, recalls the rocky road travelled by the
prerogatives to our time, which includes the Cliche decision, supra,
which, in his view, [translation]
“approved the legislative repeal of the extra-contractual immunity of the Crown
in Quebec” and ultimately led to art. 94 of the Code of Civil Procedure,
R.S.Q., c. C-25.
91 Lamer
J. referred specifically to art. 94 C.C.P. in Nelles, supra,
while comparing the various schemes governing Crown immunity for malicious
prosecutions to the situation in Ontario, where the Crown had, until then,
enjoyed absolute or quasi-absolute immunity. He wrote, in obiter (at p.
181):
The situation in Quebec differs
in that since 1966 the Code of Civil Procedure, R.S.Q., c. C-25,
specifically provides for claims against the Crown in the following terms:
94. Any person having a
claim to exercise against the Crown, whether it be a revendication of moveable
or immoveable property, or a claim for the payment of moneys on an alleged
contract, or for damages, or otherwise, may exercise it in the same manner as
if it were a claim against a person of full age and capacity, subject only to
the provisions of this chapter.
No provisions in this chapter
prevent a suit for malicious prosecution against the Crown.
92 Lamer
J. expressed no opinion as to the scope of that article in respect of public
law, adding the following important caveat: “However, the substantive
issue of immunity of Crown prosecutors has not been finally determined” (p.
181). He returned briefly to the subject to support his position that there are
policy considerations which favour relative immunity for Crown attorneys in
such cases, stating (at pp. 197-98): “In addition, since 1966, the province of
Quebec permits suits against the Attorney General and Crown prosecutors without
any evidence of a flood of claims.”
93 Clearly,
this is an obiter dictum. As well, those comments, made in passing, do
not provide any substantive analysis of the scope of art. 94 C.C.P. in
relation to actions against the Attorney General and Crown attorneys for
malicious prosecutions. Lamer J. himself indicated that the question had not
been finally decided and, in any event, was not necessary for the solution of Nelles,
supra. In the circumstances, this obiter dictum cannot stand as
authority on the issue before us. LeBel J.A. himself addressed it as follows
(at p. 420):
[translation] The incidental comments made by Lamer J.
regarding the specific nature of the rules of Crown liability in Quebec law
cannot alter those conclusions [see reasons of Lamer J., pp. 181, 197-98]. The
central issue is not Ontario private law, but the question of the immunity of
the Attorney General and of prosecutors. As Lamer J. pointed out, the legal
situation in Quebec differs from the situation in Ontario, since absolute
immunity was abolished in Quebec long ago, given that the Code of Civil
Procedure expressly provides for a right of action against the Crown, and
no law has been enacted to clearly define the legal rules that apply to the
Crown, the Attorney General and prosecutors. That does not mean, however, that
the Supreme Court decided in that case that in Quebec the Attorney General and
prosecutors enjoy no immunity, even relative. At most, we can say that in
Quebec, the question has not been finally determined [see reasons of Lamer J.,
p. 181]. In doing a comparative analysis of a number of legal
systems, Lamer J. did leave civil law systems out of his analysis, because of
the wide differences between those systems and the common law tradition
[p. 191]. It does not appear that Lamer J. dealt in that
instance with the specific case of the legal system of Quebec; rather, his
reasons appear to be concerned with the private law systems of major civil law
nations such as France.
94 I
would note in passing that this obiter dictum by Lamer J. does not meet
the test proposed by Chouinard J. in Sellars v. The Queen, [1980] 1
S.C.R. 527, at p. 530:
In Ottawa v. Nepean Township
et al., [1943] 3 D.L.R. 802, Robertson C.J. wrote for the Court of Appeal
of Ontario, at p. 804:
. . . What was there
said may be obiter, but it was the considered opinion of the Supreme
Court of Canada, and we should respect it and follow it even if we are not
strictly bound by it. [Emphasis added.]
The
opinion here is not a “considered opinion” on the subject; it is merely a
comment that raises the question but is not intended to dispose of it, as Lamer
J. himself states and as LeBel J.A. correctly points out.
95 While,
as I believe, art. 94 C.C.P. is intended to deal with actions in
extra-contractual civil liability in private law against the Crown in
Quebec, it does not, however, in my opinion, dispose of the question of actions
in extra-contractual civil liability against public authorities in public
law, and in particular, for the purposes of this appeal, of actions for
malicious prosecution against the Attorney General of Quebec and Crown
attorneys. Since Quebec has not legislated to abolish the immunities in public
law that govern extra-contractual civil liability for malicious prosecutions by
the Attorney General, we must look to the English public law on this point.
96 It
is against this backdrop that we must now consider the Nelles decision, supra,
and decide whether it applies in Quebec in whole or in part.
(2)
Nelles
97 The
Nelles decision dealt with a civil action for damages against the
Ontario Crown, Attorney General and Crown attorneys and others, and arose out
of a murder charge laid against Susan Nelles, who was acquitted after a
preliminary inquiry. Ms. Nelles alleged that the Crown and its agents had
committed the tort of malicious prosecution. The Ontario Crown responded to the
action by making a preliminary motion to have the action dismissed on the
ground that under Rule 126 of the Ontario Rules of Practice the plaintiff had
no cause of action, because the Crown enjoyed absolute immunity. The motion was
allowed both at first instance and on appeal, but that decision was set aside
by the Supreme Court of Canada as against the Attorney General.
98 The
question before this Court was whether the Crown, the Attorney General and
Crown attorneys enjoy absolute immunity from an action for malicious
prosecution. A majority of the Court concluded that while the Crown enjoys
absolute immunity in this respect under the Ontario Rules of Procedure, the
Attorney General and Crown attorneys do not enjoy such absolute immunity in
respect of malicious prosecution. McIntyre and Lamer JJ., in turn, listed the
various approaches that have been adopted around the world and in Canada and
concluded that ultimately, there are policy considerations that support
relative immunity in respect of the tort of malicious prosecution as it applies
to the Attorney General and Crown attorneys.
99 LeBel
J.A., with whom I agree completely on this point, adopted the principle of
relative immunity, which, he wrote, [translation]
“must be applied in Quebec” (p. 420). He also observed, on this point (at p.
420):
[translation] As well, the administrative and judicial policy
considerations examined in Nelles v. Ontario are matters of public law.
Because they relate to the application of a national law that applies
everywhere in Canada, they ... must be taken into account in determining the
nature of the public law rules governing an action in liability for malicious
prosecution by the Attorney General and the Attorney General’s prosecutors in
Quebec.
. . .
The principles laid down by the
Supreme Court of Canada in Nelles v. Ontario are part of the public law
that applies in Quebec. They mean that both the Attorney General and
prosecutors enjoy relative immunity from civil suits, in respect of acts they
perform in the course of their duties.
100 Because
it is agreed that Nelles applies in Quebec, I shall move on immediately
to the question of whether it applies integrally in Quebec, which is the
question on which both the Quebec Court of Appeal and the parties to this case
do not agree.
(3)
Does Nelles apply integrally in Quebec?
101 While
the appellant admits that Nelles applies in Quebec, he submits that it
applies only in part; in taking this position, he relies both on the opinion of
LeBel J.A. and on the following arguments, which he made in support of his
contentions: (1) the present case is primarily an action in civil liability for
malicious prosecution in which the plaintiff is seeking compensation for the
infringement of his individual rights; (2) private law, and thus civil law,
must be applied predominantly. Public law here only defines the context and the
protection granted by the regime governing the civil liability of the Attorney
General and of Crown attorneys. Accordingly, the principles which in Nelles
derive from the private common law must give way to the application of the
principles of Quebec civil law. The four criteria laid down in Nelles,
therefore, cannot be applied mutatis mutandis in Quebec law. Proof of
gross negligence is sufficient to ground liability against the Attorney General
and Crown attorneys.
102 The
Attorney General submits that the only onus compatible in Quebec law with the
requirements of the burden of proof described in Nelles is intentional
fault. Consequently, absence of reasonable and probable grounds and intent to
harm must be demonstrated.
103 It
is necessary here to refer to Nelles, and, in particular, to the
statement by Lamer J. regarding the tort of malicious prosecution, which LeBel
J.A. quotes (at p. 420): [translation]
“Nelles v. Ontario was indeed decided on the basis of the tort of
malicious prosecution, a private common law action which is foreign to the
Quebec law of civil liability.” On the question of the tort of malicious
prosecution, Lamer J. observed (at pp. 176-77):
I would like to point out that
what is at issue here is not whether malicious prosecution is a reasonable
cause of action. A suit for malicious prosecution has been recognized at common
law for centuries dating back to the reign of Edward I. What is at issue is whether
the Crown, Attorney General and Crown Attorneys are absolutely immune from suit
for the well-established tort of malicious prosecution.
104 Here,
Lamer J. drew a distinction that is crucial in the instant case between the
tort of malicious prosecution in private common law, which has existed “for
centuries”, and the same tort of malicious prosecution in public common law,
which, until then, had run up against the absolute immunity of the Crown, and
the apparently absolute immunity of the Attorney General. In private common
law, individuals against whom an action is brought may no longer rely on
immunity. In public common law, on the contrary, until Nelles Crown
attorneys seemed to enjoy absolute immunity.
105 While
LeBel J.A. adopted the analysis of Lamer J. in Nelles and concluded that
[translation] “[t]his principle
of relative immunity must be applied in Quebec” (p. 420), he does not seem to
have made that distinction when he described the tort of malicious prosecution
as a private common law action and found it to be foreign to the Quebec law
of civil liability. He did not pursue his analysis further, to determine
whether there is a tort of malicious prosecution in public law, and if so,
whether it applies in public law in Quebec. LeBel J.A. accordingly looked to
Quebec’s private civil law to determine the elements of the tort of malicious
prosecution in public common law.
106 In
my opinion, that is an incorrect interpretation of what Lamer J. said in Nelles
when he referred to the common law tort of malicious prosecution which has
existed “for centuries”. By this, he could only have meant private
prosecutions, and not public prosecutions, because at that time prosecutions
were private. In fact, he stated in this respect, in Nelles (at pp.
189-90):
The position in respect of
prosecutorial immunity in England is somewhat unique in that jurisdiction owing
in part to the tradition of private prosecution. Private prosecutors have
always been liable to suit for malicious prosecution though few, if any,
reported cases exist. The Director of Public Prosecutions, who performs the
same or similar function as a Canadian provincial Attorney General, was not
created until 1879. In Riches v. Director of Public Prosecutions, [1973]
2 All E.R. 935 (C.A.), the Court said the following in respect of suits against
the D.P.P. (at p. 941):
I do not wish to be taken as
saying that there may never be a case where a prosecution has been initiated
and pursued by the Director of Public Prosecutions in which it would be
impossible for an acquitted defendant to succeed in an action for malicious
prosecution, or as saying, that the existence of the Attorney General’s fiat
where required conclusively negates the existence of malice and conclusively
proves that there was reasonable and probable cause for the prosecution. There
may be cases where there has been, by even a responsible authority, the
suppression of evidence which has led to a false view being taken by those who
carried on a prosecution and by those who ultimately convicted.
The English position then, at
the very least, leaves the door open for suits against the equivalent of our
Attorneys General and Crown Attorneys when what is at issue is the suppression
of evidence.
As LeBel
J.A. himself acknowledged in his reasons (at p. 420), and no one here is
disputing, what we have in this case is a matter of public law and not of
private law. In these circumstances, I believe that there is no need to bring
in the notion of fault found in Quebec’s private civil law and try to
characterize that fault in such a way as to correspond to the Ontario common
law tort of malicious prosecution, regardless of what equivalency there may be,
as discussed by Professor Garant, cited by LeBel J.A. (see Garant, supra,
vol. 2, at pp. 565 and 600-619).
107 LeBel
J.A. wrote: [translation] “Apart
from the statutory provisions, we must then look to the principles of public
law, which include the rules of the common law governing immunities. When the
delictual liability of the state or of a public body is in issue, the public
law must be examined in order to determine the sphere in which the rules of
liability that come from private law are to apply, and subject to what limits and
conditions they will apply” (p. 417). He relied on Laurentide Motels,
supra, in concluding that that case “laid down principles that are still
relevant in defining the rules for stating the principles of public law and of
the system of liability that comes from private law. An examination of the
‘public’ common law will then be necessary, in order to determine whether it is
legitimate to refer to the private law rules, and the limits on doing so” (p.
417). He discussed the reasons of Beetz J. in Laurentide Motels, supra,
as follows (at p. 417):
[translation] When the delictual liability of the state or of
a public body is in issue, the public law must be examined in order to
determine the sphere in which the rules of liability that come from private law
are to apply, and subject to what limits and conditions they will apply.
Although Beetz J., in his reasons in Laurentide Motels v. Ville de Beauport [[1989]
1 S.C.R. 705] was dealing with the liability of a municipality, he laid down
principles that are still relevant in defining the rules for stating principles
of public law and of the system of liability that comes from private law. An
examination of the “public” common law will then be necessary, in order to
determine whether it is proper to refer to the private law rules, and the
limits on doing so [at pp. 724-25]:
.
. .
Public law in Quebec has two
sources, the statutory law and the common law. The meaning of the phrase “in
certain respects” in art. 356 C.C.L.C. is therefore a problem to be
resolved either by statutory provision or by the common law. As this Court
observed in Adricon Ltée v. Town of East Angus, [1978] 1 S.C.R. 1107, at
p. 1120, in the matter of a municipality's contractual relations with individuals,
the question is resolved by statute, since s. 28(1)(3) of the Cities and
Towns Act confers upon a municipality the power to “contract, transact,
bind and oblige itself and others to itself, within its powers.” In the matter
of a municipality's delictual and quasi-delictual relations with individuals,
no express statutory provision is made. Here the second source of public law,
the “public” common law as it exists at present, must determine the respects in
which a municipal corporation falls within the control of the civil law in its
relations with individuals. Under this common law, a municipal corporation
which acts within the operational sphere of its discretionary powers is subject
to private law standards of conduct. In Quebec, the private law standards of
conduct are those enunciated in the Civil Code, and particularly in
arts. 1053 et seq. C.C.L.C.
The symmetry between the
policy/operational rule drawn from the “public” common law and the collective
relations/individual relations opposition established by art. 356 C.C.L.C.
is no accident. When a municipal corporation exercises its discretionary powers
to address political exigencies, it must make a judgment as to the interest of
the community as a whole and is responsible to the community as a whole through
the ballot box. However, once a municipality moves into the operational sphere
of its powers, its negligent acts are susceptible of causing a distinct harm to
an individual member of society, and it is responsible to that individual
before the courts.
The application of the
principles I have outlined above to the facts of the case at bar reveals that
the responsibility of the city of Beauport for the damage caused to the
appellants falls to be determined by arts. 1053 et seq. C.C.L.C.
108 In
my opinion, as relevant as the passage from the opinion of Beetz J. cited by
LeBel J.A. may be when it comes to the liability of municipal corporations in
Quebec, which is governed by art. 356 of the Civil Code of Lower Canada
(as amended, as to form but not as to substance, by the Civil Code of Québec,
S.Q. 1991, c. 64, see arts. 300 and 1376 C.C.Q.), and given that this
was an extra-contractual civil action in private law, that opinion cannot
determine extra-contractual civil liability in public law for malicious
prosecution, something that the judgment never considered and did not have to
consider. The passages quoted supra may have misdirected the issue that
is before us here, and particularly the position of the two parties on this
point which LeBel J.A. himself adopted.
109 Unlike
LeBel J.A., I do not consider it to be necessary for the purposes of this case
to determine whether the decision to lay charges against an individual, which
is one of the functions of the Attorney General and Crown attorneys, must be
characterized as an act of administrative authority or an act of political
authority (p. 418). The distinction between policy and operational spheres was
borrowed by Quebec law from the public common law in Laurentide Motels for
specific purposes and in a specific context: the tort of negligence, not the
tort of malicious prosecution. (See J.-D. Archambault, “Les sources juridiques
des immunités civiles et de la responsabilité extracontractuelle du procureur
général à raison d’accusations pénales erronées: le mixte et le mêlé (Québec
c. Proulx)” (1999), 59 R. du B. 59, at pp. 82-83; P.-A. Côté,
"La détermination du domaine du droit civil en matière de responsabilité
civile de l’Administration québécoise – Commentaire de l’arrêt Laurentide
Motels” (1994), 28 R.J.T. 411, at p. 425; L. N. Klar, “Recent
Developments in Canadian Law: Tort Law” (1991), 23 Ottawa L. Rev. 177,
at p. 193.) On this point, it should be noted that this Court has applied that
distinction only in situations relating to the tort of negligence (see Martel
Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000 SCC 60, at para. 53; Ingles
v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, 2000 SCC 12; Lewis
(Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145; Brown
v. British Columbia (Minister of Transportation and Highways), [1994] 1
S.C.R. 420; Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R.
445; Just v. British Columbia, [1989] 2 S.C.R. 1228; Rothfield v.
Manolakos, [1989] 2 S.C.R. 1259).
110 It
is instructive that while this common law rule had to be applied to the actions
of the administration in the broad sense, the Supreme Court of Canada did not
see fit to reiterate that distinction in relation to the tort of malicious prosecution,
which was central to Nelles, a decision rendered after Laurentide
Motels. (See also Ryan v. Victoria (City), [1999] 1 S.C.R. 201, and Tock
v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, in which the
policy/operational dichotomy was ignored in cases relating to the tort of
nuisance.) I believe that to refer here to the policy/operational dichotomy was
misleading, because, as Professor Archambault has shown, [translation] “it suggests that it
comprises a mandatory step in any extra-contractual liability action brought
against any public authority” (“Les sources juridiques des immunités civiles et
de la responsabilité extracontractuelle du procureur général à raison d’accusations
pénales erronées: le mixte et le mêlé (Québec c. Proulx)”, supra,
at p. 84).
111 This
leads me to conclude that the jurisprudence and doctrine relating to the civil
liability of the administration in public law, in cases where the administration
makes a policy decision, is of no assistance in this instance. (See on this
point Québec (Procureur général) v. Deniso LeBel Inc., [1996] R.J.Q.
1821 (C.A.), at p. 1838; P. Garant, “La responsabilité civile de la
puissance publique: du clair obscur au nébuleux” (1991), 32 C. de D.
745; P. Giroux and S. Rochette, “La mauvaise foi et la responsabilité de
l’État”, in Service de la formation permanente du Barreau du Québec, vol. 119, Développements
récents en droit administratif et constitutionnel (1999), 117, at pp.
122-23.)
112 As
I noted earlier, LeBel J.A. then reverted to Quebec private civil law to
determine the elements of the public law tort of malicious prosecution in
Quebec. He applied those elements, inter alia, to decide whether the
Attorney General of Quebec and Crown attorneys enjoy the relative immunity in
public law recognized in Nelles, supra. I cannot follow him down
that path.
113 Professor
Archambault, in “Les sources juridiques des immunités civiles et de la
responsabilité extracontractuelle du procureur général à raison d’accusations
pénales erronées: le mixte et le mêlé (Québec c. Proulx)”, supra,
wrote on this point, at p. 97:
[translation] By thus confusing private common law torts and
public common law immunities, and simultaneously and erroneously rejecting them
both, our Quebec private law has been invested with powers that it does not
have, for which it was never designed. That leads to uncertainty and
incoherence, in which, without actually admitting it, what is being done is to
try to combine, to mix, common law considerations with principles that
allegedly come from private law. . . .
114 The
role of the Attorney General and of Crown attorneys when they lay criminal
charges, in Quebec as elsewhere, is a public law role. They represent the Crown
and the public interest, and not their private interest or the interest of a
private citizen, as LeBel J.A. himself stated (at p. 412):
[translation] The Attorney General and the Attorney General’s
prosecutors are the guardians of the public interest, and assume a general
responsibility for the efficient and proper functioning of the criminal justice
system. Their role is not limited to that of private counsel who is responsible
for an individual case (Canada. Law Reform Commission. Controlling
Criminal Prosecutions: the Attorney General and the Crown Prosecutor.
Ottawa: The Commission, 1990. Pp. 18-19).
Accordingly,
it is public law that governs the actions of the Attorney General and of Crown
attorneys in the performance of their duties.
115 Nor
must it be forgotten that what was decided in Nelles was not so much the
nature of the tort of malicious prosecution, but rather the scope of the
immunity of the Crown and its agents as recognized in public law; this is a
purely public law concept. No such concept exists in private law, except,
perhaps, as Professor Archambault pointed out in “Les sources juridiques des
immunités civiles et de la responsabilité extracontractuelle du procureur
général à raison d’accusations pénales erronées: le mixte et le mêlé (Québec
c. Proulx)”, supra, at p. 74, in the statute law, for
specific purposes: immunity is granted to [translation]
“judges, commissioners, prosecutors, witnesses, parties and counsel”. LeBel
J.A. (at pp. 420-21) referred to this himself, as follows:
[translation] In fact, there are already
other immunities for the benefit of participants in the judicial process, such
as parties, witnesses or counsel (Langelier v. Giroux, (1932) 52 B.R.
113; Langlois v. Drapeau, [1962] B.R. 277), or justices (Doyon v.
Roussel, [1989] R.R.A. 528 (C.A.)), and judges (Morier v. Rivard,
(1985) 2 S.C.R. 716).
116 Absolute
immunity had been a prerogative of the Crown since time immemorial, as
Professor Archambault stated in his article, portions of which I quoted, supra,
in this respect (“Les sources juridiques de la responsabilité
extra-contractuelle de la Couronne du Québec: variations de droit public”, at
pp. 519-20).
117 Each
legal system, public and private, common law and civil law, has its unique
rules, and I see no reason to intermingle them unless the legislature has
itself so provided, as is the case for municipal corporations in Quebec law.
How then can it be argued that private law concepts could be relevant in
determining the scope of that public law immunity, however relative it may be?
I believe that referring to private law concepts would take us down the wrong
track.
118 It
is important not to confuse torts, in private common law, and immunities, in
public common law. While the tort of malicious prosecution is foreign to the
private law of the Quebec Civil Code, the immunity defined by the public
common law is not. Consequently, there is no need to translate the test that,
according to Nelles, governs the relative immunity conferred on the
Attorney General and Crown attorneys in public law into Quebec law, by trying
to find some equivalent among the concepts of fault that are an inherent part
of civil liability in Quebec. Application of the four criteria laid down in Nelles
does not call for any reference to Quebec private civil law; the relative
immunity of Crown counsel and of prosecutors originates in the public common
law, which applies in its entirety in Quebec.
(4)
Conclusion
119 I
therefore conclude from the foregoing that the extra-contractual civil
liability of the Attorney General of Quebec and of the Attorney General’s
prosecutors for malicious prosecution is part of Quebec public law and is
entirely governed in Quebec by the decision in Nelles, supra. The
relative immunity enjoyed by the Attorney General and by Crown attorneys
pursuant to Nelles applies to them. Consequently, the concepts of fault
in the private civil law of Quebec are not applicable in deciding that
liability; rather, the public law test laid down in Nelles applies.
120 That
being said, I turn to the application of Nelles to the facts of this
case, in order to determine whether the Attorney General of Quebec and the
Crown attorneys are entitled to relative immunity in respect of the
extra-contractual civil action brought against them. Prior to that, however, it
is important to review the role of the Attorney General and Crown attorneys as
regards criminal prosecutions, and the standards applicable to the performance
of their duties, in accordance with Nelles.
D. Application
of Nelles to the Facts of the Case
(1) Role
and Duties of the Attorney General in Relation to the Laying of Criminal
Charges
121 The
leading decision in this respect is Boucher v. The Queen, [1955] S.C.R.
16, to which both Lamer and McIntyre JJ. referred in Nelles. Lamer J.
dealt with it as follows (at pp. 191-92):
The office of the Crown Attorney
has as its main function the prosecution of and supervision over indictable and
summary conviction offences. The Crown Attorney is to administer justice at a
local level and in so doing acts as agent for the Attorney General.
Traditionally the Crown Attorney has been described as a “minister of justice”
and “ought to regard himself as part of the Court rather than as an advocate”.
(Morris Manning, "Abuse of Power by Crown Attorneys", [1979] L.S.U.C.
Lectures 571, at p. 580, quoting Henry Bull, Q.C.) As regards the proper
role of the 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.
122 LeBel
J.A. did a very thorough review of the question and there is no disagreement
regarding the norms he identified. I believe that it is worth reproducing a
passage from his opinion on this point here, with which I am in complete
agreement (at p. 411):
[translation] The critical nature of the role of the Attorney
General and prosecutors in a province in the functioning of the criminal
justice system in Canada is apparent even from a quick examination of their
functions. The Attorney General is traditionally responsible for administering
justice, and for initiating or terminating criminal and penal prosecutions. He
or she also acts as representative of the sovereign, before the courts and in
the various criminal proceedings. Those functions give the Attorney General the
status of constitutional guardian of the social peace, and the duty to ensure
that crimes and violations of statutes are punished (Canada. Law Reform
Commission. Criminal Procedure: Control of the Process. Ottawa: The
Commission, 1975. Pp. 11-13).
(2)
The Nelles Test
123 In
applying the Nelles decision, the respondent’s conduct must be evaluated
having regard to the role of the Attorney General. Lamer J. described the
necessary cumulative elements to succeed in an action for malicious prosecution
(at p. 193):
(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.
(See J. G. Fleming, The Law
of Torts (5th ed. 1977), at p. 598.)
Lamer J.
pursued (at pp. 193-94):
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 (1878), 8 Q.B.D. 167, at p. 171, 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 .) [Emphasis deleted.]
124 Lamer
J. summarizes the plaintiff’s burden in such actions (at p. 194):
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 and 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.
125 The
test laid down in Nelles for lifting the immunity of Crown attorneys is
very strict, and for a good reason. It must be recalled that before Nelles,
immunity was absolute, as it has in fact always been the case in the United
States. In Imbler v. Pachtman, 424 U.S. 409 (1976), the United States
Supreme Court held (at pp. 422-24):
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 prosecutor's 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).
In Yaselli
v. Goff, 12 F.2d 396 (2d Cir. 1926), Rogers J. wrote, at p. 406:
The public interest requires
that persons occupying such important positions and so closely identified with
the judicial departments of the government should speak and act freely and
fearlessly in the discharge of their important official functions. They should
be no more liable to private suits for what they say and do in the discharge of
their duties than are the judges and jurors, to say nothing of the witnesses
who testify in a case.
Lamer J.
recognized in Nelles that “[t]here is no doubt that the policy
considerations in favour of absolute immunity have some merit” (p. 199). Those
considerations include public confidence, diversion from duties, the choice
between two evils and other available recourses. He concludes as follows (at p.
199):
Further, it is important to note
that what we are dealing with here is an immunity from suit for malicious
prosecution; we are not dealing with errors in judgment or discretion or
even professional negligence. By contrast the tort of malicious prosecution
requires proof of an improper purpose or motive, a motive that involves an
abuse or perversion of the system of criminal justice for ends it was not
designed to serve and as such incorporates an abuse of the office of the
Attorney General and his agents the Crown Attorneys. [Emphasis added.]
In that
decision, I myself pointed out (at p. 223):
Attorneys General and Crown
Attorneys are often faced with difficult decisions as to whether to proceed in
matters which come before them. It is unfortunate that, like all human beings,
they cannot be immune from error. However, the holders of such offices can and
should be immune from prosecution for any such errors which occur in the course
of the exercise of their functions. The freedom of action of Attorneys General
and Crown Attorneys is vital to the effective functioning of our criminal
justice system. In my view, the greater public interest is best served by
giving absolute immunity to these agents.
126 This
is the background against which the facts of this case must be examined having
regard to the norms and test set out supra.
(3) The Judicial Framework
127 The
facts that led to the prosecution of the appellant and the difficulties that arose
at trial are not in dispute; the only issue concerns the assessment of those
facts having regard to the applicable norms. It is useful, however, to recount
at the outset the judicial history of this case, starting with the murder of
France Alain.
128 Following
the murder, officers John Tardif and Marcel Gauvin were put in charge of the
investigation. The coroner summoned a number of witnesses, including the
appellant. Early on, suspicion focused on the appellant on account of the facts
established at the coroner’s inquest.
129 In
March 1986, after several weeks of inquiry, the coroner conceded that he could
not conclude that the appellant had met France Alain on the evening of October
25, 1982 and no charges were laid. At that time, the Crown attorney was of the
view that there was insufficient evidence.
130 Inactive
since the coroner’s inquest, the case was reactivated in early 1991, due to a
new media coverage of an action in civil liability for defamation brought by
the appellant against a journalist at the radio station CHRC and John Tardif,
who had investigated the case. The publication of a photograph of the appellant
in a local newspaper, alongside a news report on the civil action, revived anew
Paul-Henri Paquet’s memory. The Crown attorney at the coroner’s inquest was
informed of this new development. The police and the Crown then reopened the
case of France Alain. The Crown attorney immediately requested the police
officers to conduct a serious investigation of this new witness. They looked
for additional verification concerning, among other things, written statements
from the witness’s relatives and on the information he would have provided in
1982. The account given by Mr. Paquet was corroborated by the testimony of a
number of other people, three of whom affirming that, in the hours following
the murder, Mr. Paquet had recounted the same incident he would recall in 1991.
131 In
light of the facts recounted by this witness, the Crown attorney re-examined
the whole of the evidence collected during the police investigation, including
the transcripts of the police interrogations and of the coroner’s inquest. Only
after discussing the case with his colleagues and superiors did the Crown attorney
authorize the laying of a murder charge against the appellant, on March 20,
1991.
132 The
appellant’s preliminary inquiry was held in April 1991, at which time he was
committed for trial. He was tried before judge and jury, and at the end of the
trial, on November 10, 1991, he was found guilty of the first degree murder of
France Alain. He was sentenced to life in prison, with no eligibility of parole
for 25 years.
133 The
Court of Appeal set aside the guilty verdict and substituted a verdict of
acquittal, having concluded that the verdict was based on evidence that should
have been excluded (at p. 383 C.C.C.):
[translation] With respect, we consider that the jury’s
verdict rests in part on evidence that the judge should have excluded. We are
also of the view that the jury ended up at its verdict as a result of
inadequate instructions, in particular on the visual identification evidence
and the question of motive. Finally, we consider that the identification
evidence is so lacking in probative value that it would be unreasonable, even
taking into account the other evidence called by the Crown, to find beyond a
reasonable doubt that Mr. Paquet saw the appellant near the scene of the crime
on the evening of October 25, 1982.
While we must take account of
the advantages of the jury’s position in regard to questions of credibility, we
are on the other hand required, pursuant to the principles set out above, to
consider the reasonableness of the verdict on the basis of the legally admissible
evidence and what would be the appropriate instructions in law. In short, our
conclusion must deal with a verdict that the jury could have reasonably
rendered, not on the evidence admitted but on that which should have been
admitted, after having been properly instructed by the trial judge.
Applying the principles set out
in Yebes, Howard, S.(P.L.) and W.(R.) to all of the
evidence, we consider that in the present case, a properly instructed jury
“could not reasonably have decided that the accused was guilty beyond a
reasonable doubt”.
(4) Liability
(a) Preliminary
Remarks
134 The
Court of Appeal was particularly divided on the meaning and characterization of
the test set out in Nelles. Beauregard J.A. strictly applied Nelles
to the facts of the case, while LeBel J.A., dissenting on this point, redefined
the test on the basis of the civil law definition of fault.
135 Applying
the extremely rigorous test laid down in Nelles, which is, according to
Lamer J., in the nature of a fraud on the law, I am in complete agreement with
the conclusion reached by Beauregard J.A. based on the test.
136 As
a preliminary point, it must be noted, as Brossard J.A. pointed out, that the
burden of proof in civil matters is not subject to the same rules as in
criminal matters. Proof beyond a reasonable doubt in criminal law is not the
proof required in civil law, which is proof on a balance of probabilities. On
this point, I would borrow the expression used by Professor J.-C. Royer: [translation] “Criminal law does not
apply to civil law” (La preuve civile (2nd ed. 1995), at p. 473) or, as
Brossard J.A. observed (at p. 436):
[translation] In my opinion, and with respect for the contrary
view, it seems to me that the trial judge’s error gave the judgment of this
Court acquitting the respondent, for good reason, too much weight in the civil
trial. Not only is a civil trial not subject to the same rules of evidence, but
also, and most importantly, the burden of proof is essentially reversed in a
civil trial
. . . while in the
criminal case the Crown had the burden of proving the accused’s guilt beyond a
reasonable doubt, the burden is on the respondent, in the civil trial, [a
burden of] proof by a preponderance of evidence. . . .
137 On
the other hand, the Crown attorney does not assume the role of the judge and
does not have to anticipate all of the rulings that a judge may make in a
criminal trial, those decisions often being determined by the arguments made by
the defence, the gravity of the case, the gravity of the offence charged, and
so on. The Crown attorney must know the law and apply it to the best of his or
her knowledge.
138 Nor
can the Crown attorney be held responsible for the errors which the judge at
the criminal trial is alleged to have made as found by the Court of Appeal and
on which the trial judge in the civil case relied entirely to uphold the
appellant’s action.
139 In
addition, it is essential to point out that this was a prosecution based solely
on circumstantial evidence, no one having witnessed the murder. Contrary
to what my colleagues seem to be saying, the evidence and pleadings clearly
show that neither the Crown nor the defence saw fit to compel the witness, Mr.
Paquet, to identify the accused before or during the trial. In The Law of
Evidence in Canada (2nd ed. 1999), J. Sopinka, S. N. Lederman and A. W.
Bryant describe the requirements relating to circumstantial evidence (at pp. 38
and 41):
Circumstantial evidence in the
criminal context is any circumstance which may or may not tend to implicate the
accused in the commission of the offence for which the accused is charged.
. . .
Each piece of evidence need not
alone lead to the conclusion sought to be proved. Pieces of evidence, each by
itself insufficient, may however when combined, justify the inference that the
facts exist.
140 J.
J. Robinette, “Circumstantial Evidence”, [1955] Spec. Lect. L.S.U.C.
307, said the following (at p. 307):
All that circumstantial evidence
is, is that you are seeking to prove circumstances, subordinate circumstances,
subordinate facts, from which a trial tribunal may draw the inference that a
principal issue of fact vital to your case has been established. Therefore, as
a matter of logic, if an inference may be drawn from a subordinate fact that
the principal fact occurred then evidence is admissible to prove the
subordinate fact and that is what is loosely called circumstantial evidence.
See also
R. J. Delisle, Evidence: Principles and Problems (4th ed. 1996), at p.
23: “In cases of circumstantial evidence certain facts connected with the
material fact are proved and the trier is asked to infer from those facts that
the material fact exists”; A. F. Sheppard, Evidence (3rd ed. 1988), at
p. 158: “Circumstantial evidence is any item of evidence other than the
testimony of an eyewitness to the material fact, which is called direct
evidence.”
141 As
Hall J. (dissenting in part but not on this issue) wrote in Reference re
Truscott, [1967] S.C.R. 309, at pp. 383-84:
I recognize fully that guilt can
be brought home to an accused by circumstantial evidence; that there are cases
where the circumstances can be said to point inexorably to guilt more reliably
than direct evidence; that direct evidence is subject to the everyday hazards
of imperfect recognition or of imperfect memory or both. The circumstantial
evidence case is built piece by piece until the final evidentiary structure
completely entraps the prisoner in a situation from which he cannot escape.
There may be missing from that structure a piece here and there and certain
imperfections may be discernible, but the entrapping mesh taken as a whole must
be continuous and consistent.
See also R.
v. Kaysaywaysemat (1992), 10 C.R. (4th) 317 (Sask. C.A.). Circumstantial
evidence may therefore establish that the accused committed the crime: R. v.
Bowles (1985), 21 C.C.C. (3d) 540 (Alta. C.A.); Genest v. La Reine,
[1990] R.J.Q. 2387 (C.A.). The accused’s conduct subsequent to the crime may
also constitute circumstantial evidence of guilt: R. v. White, [1998] 2
S.C.R. 72; R. v. Ménard, [1998] 2 S.C.R. 109.
142 At
the heart of the application of these rules of liability lies the decision by
the Crown attorney to prosecute, which should be assessed having regard to the
factual situation and all of the information available to him at the time he
authorized the murder charge: March 20, 1991.
143 I
will examine the four criteria set out in Nelles in turn having regard
to the evidence on which the Crown attorney based his opinion that laying the
information was justified.
(b) The
Criminal Prosecution and the Acquittal
144 The
first two criteria are easily met: the criminal proceedings in Proulx
were initiated by the Crown attorney, who was the defendant in the civil case, Proulx
v. Québec (Procureur général). As well, [translation]
“the [criminal] proceedings . . . terminated in favour of the plaintiff” (p.
421): in R. v. Proulx, the Quebec Court of Appeal acquitted the
appellant, Benoît Proulx. On the other hand, the last two criteria call for a
more in-depth and detailed examination of the facts.
(c) Reasonable
and Probable Grounds
145 LeBel
J.A. stated the principles that must serve as guidelines in analysing this
component of the extra-contractual civil liability for malicious prosecution in
public law, which are not in dispute here (at p. 415):
[translation] At the outset, at this critical stage of the
criminal process, authorization for laying the information, objectivity and a
cold and measured assessment of whether there is reasonable and probable cause
are essential to the proper performance of the prosecutor’s functions. The
prosecutor’s decision may not be based on any personal conviction of guilt. The
prosecutor must retain a degree of detachment from the case, in order to
evaluate all of the evidence available, as well as the impact of the rules
found in the case law and the legislation regarding the admissibility of that
evidence at trial, so that it can be determined whether it is objectively
reasonable and in conformity with the law to initiate a prosecution. The
prosecutor must not assume the role of the judge and conduct the trial in his
or her head. However, the decision to authorize the charge must be based on
objectively verifiable factors and on the probable state of the law. The
ultimate objective must not be to obtain a conviction at any cost. When it
seems risky, at best, that a conviction could be obtained, based on an analysis
of the case done with the essential professional detachment, setting a criminal
proceeding in motion would violate some of the fundamental objectives and
principles of the criminal justice system. That system does not allow the legal
security and reputation of an individual, who is fundamentally protected by the
presumption of innocence, to be jeopardized, unless there are sufficient
grounds, which have been characterized as reasonable and probable both by
judicial practice and by the directives governing the conduct of Crown
attorneys.
Were
there in fact no reasonable and probable grounds to charge the appellant when
the charge of first degree murder was laid?
146 There
are two important elements that would suggest, prima facie, that there
were sufficient grounds. First, the judge who presided at the preliminary
inquiry concluded that there were reasonable and probable grounds for
committing the appellant for trial. Second, the trial judge found that there
was sufficient evidence, since he did not direct a verdict of acquittal and the
jury returned a guilty verdict. A more in-depth analysis is however necessary.
147 On
March 20, 1991, when he authorized the murder charge, did the Crown attorney
have “an honest belief in the guilt of the accused based upon a full
conviction, founded upon reasonable grounds, of the existence of a state of
circumstances, which, assuming them to be true, would reasonably lead any
ordinarily prudent and cautious [person], placed in the position of the
accuser, to the conclusion that the person charged was probably guilty of the crime
imputed"? (Hicks v. Faulkner (1878), 8 Q.B.D. 167, at p. 171,
Hawkins J., quoted by Lamer J. in Nelles, at p. 193).
(i) Appellant’s
Argument
148 The
appellant submitted, first, that it was impossible to establish beyond a
reasonable doubt that he had left his work station, had met the victim on the
evening of the murder, owned a firearm, had had a quarrel with the victim a few
days before the murder or knew important details about the victim before the
police revealed them.
149 The
appellant also contended that in its judgment of acquittal in 1992, the Court
of Appeal was of the opinion that the Crown attorney’s evidence was based solely
on suspicion and supposition, fed by the prior relationship between the
appellant and the victim, and the discovery of a polythene bag at the crime
scene that was similar to those used by the appellant’s employer.
(ii) Respondent’s
Argument
150 The
respondent contends that the circumstantial evidence available to the Crown
attorney at the time he laid the charges attests to the existence of reasonable
and probable grounds for initiating a prosecution. That evidence related to: a
motive, as per the conversation between the victim’s father and the appellant;
the knowledge of the circumstances of the crime evidenced by the content of the
news item written and read on air by the appellant on the evening of the
murder, which contained information not available at the time it was written;
the guilty conscience on the appellant’s part on the evening of the murder
described by the witnesses Tanguay and Laberge; the real opportunity to commit
the crime, on account of the appellant’s schedule and the proximity to his
place of work which gave him the necessary latitude; and the presence of
evidence relating to the means used to commit the crime, such as the polythene
bag found at the scene of the crime and some knowledge of how to handle a 12
calibre rifle.
(iii) Analysis
151 The
role of the Attorney General is not that of the judge, nor to be objectively
satisfied, beyond a reasonable doubt, of the guilt of an accused, or
even to ensure, in that respect, that the evidence he or she has will necessarily
be sufficient to guarantee a guilty verdict. His or her role is limited to
determining whether it is objectively reasonable, and in conformity with the
law, to initiate a prosecution. In subjective terms, when the prosecutor
exercises his or her discretion and lays a charge against an individual, he or
she must believe in good faith in the guilt of the accused, and that certainty
must be based on reasonable and probable grounds. While it is up to the prosecutor,
where the evidence is circumstantial, to establish beyond a reasonable doubt
that all of the facts, when considered in their entirety, lead logically to a
conclusion of guilt or of exclusive opportunity, to the exclusion of any other
logical solution (Truscott, supra, at pp. 383-84, per Hall
J., and R. v. Yebes, [1987] 2 S.C.R. 168, at pp. 187-89), that burden of
proof is applicable only at the criminal trial.
152 On
the question of the objective analysis of the reasonableness of that belief, it
must be determined whether a prudent and cautious person would have believed
that the appellant was probably guilty of the crime. In applying that test,
however, one must not forget the circumstances of the case, i.e. that the
charges were laid on the basis of entirely circumstantial evidence to
establish the identity of the author of the crime, given that the police
investigation into the murder of France Alain had not led to the discovery of any
eyewitness. In that perspective, we need to examine both the content of the
information available to the Crown attorney in 1986 and the events that
occurred in 1991.
153 In
1986, the Crown attorney reviewed the coroner’s report of the inquiry into the
circumstances of the death of France Alain. In the course of that inquest, the
coroner had summoned a number of witnesses, including the appellant. Although
it could not be established with certainty that the appellant had met France
Alain on the evening of October 25, 1982, the inquest nonetheless brought to
light evidence incriminating the appellant, in particular the following:
(1)
Shortly before the murder, the appellant had been going out with the victim,
France Alain.
(2) They
broke up three weeks before the evening of the murder.
(3)
Between the date when they broke up and the date of the murder, the appellant
went to a party where France Alain was present. One person who was at the party
said that he had witnessed friction between the appellant and France Alain.
(4) The
appellant admitted that between the time when they broke up and the time of the
murder, he hung around in the immediate vicinity of the victim’s home to see
whether lights were on in her apartment.
(5) The
day before the murder, the victim tried to call the appellant. However, the
appellant denied that he had returned France Alain’s call.
(6) The
evening of the murder, the appellant was working between 4:00 p.m. and midnight
at the radio station CHRC, which was located in premises near the place where
the crime was committed.
(7)
France Alain was killed between 7:30 and 7:46 p.m. The investigating police
officers determined that it took barely 13 minutes for a person to leave
station CHRC, go by foot to the scene of the murder and come back, taking the
longest route. The time needed to travel the same route by car is obviously
shorter. The appellant had to be at the station for the 8:00 p.m. news
broadcast; he therefore had sufficient time to make that return trip.
(8) The
appellant admitted that he had left work in the past to run errands.
(9) When
interviewed by the investigating police officers the day after the murder, the
appellant was unable to confirm whether he had been away from his place of work
the day before.
(10) A
green polythene bag, part of which had been torn away, was discovered near the
scene of the crime, the same industrial type of bag in regular use on the CHRC
premises. A ballistic examination subsequently showed that the tear was
consistent with the tear caused on a specimen bag by firing a 12 calibre rifle.
(11) The
appellant had always maintained that he knew nothing about firearms.
Nonetheless, he told the investigating police officers that it would have been
easy for the murderer to dismantle his rifle in order to conceal it better. The
appellant said that he had seen his brother dismantle a 12 calibre rifle in the
past. The brother himself denied that he had ever owned a 12 calibre rifle,
until he was confronted with the appellant’s statement.
(12) At
about 9:00 p.m. on the evening of the murder, the appellant contacted the
journalist Gilles Laberge to assign him to gather additional information
relating to the murder that had just been committed near CHRC. He told Mr.
Laberge that he was afraid that the victim was a [translation] “girlfriend” who lived in the neighbourhood.
Gilles Laberge nonetheless assured the appellant that it was impossible to
obtain any information from the Sainte-Foy municipal police from which the
identity of the victim could be determined nor to learn anything more about the
circumstances of her death.
(13) The
appellant stated that he had known about certain details relating to the murder
as a result of an anonymous call received at about 9:30 on the evening of the
murder. He wrote a news bulletin that he read on air at 10:00 p.m., and again
at 11:00 p.m., which caught the attention of the investigating police officers.
What was noteworthy about the bulletin was that it gave the exact age of the
victim, 21, and the precise location where the victim’s body was found, an [translation] “embankment”, when the
only ones in a position to know these details were the police and the witnesses
who had made the grim discovery. The victim had in fact not remained for long
at the scene of the crime: the number of people who had seen the victim in the
position in which she was found was therefore small. According to the coroner’s
inquest, the bulletin exhibited a degree of prior knowledge of the
circumstances of the crime on the part of the appellant, at a time when that
kind of information was not available.
(14)
Another of the appellant’s colleagues, Jean-Pierre Tanguay, was at CHRC on the
evening of the murder. His work consisted of operating the console for
broadcasting radio programs. He testified that the appellant told him that he
had had [translation] “some very
bad luck”, that “his girlfriend” . . . “had got or had just got
shot”. The witness asked the appellant whether he had details and whether he
knew what had happened. The appellant replied, [translation] “it happened in the street and there are no
other details”. At this precise time, this was the very first time that Tanguay
had heard anything about the murder of France Alain. The appellant read a news
bulletin at 10:00 p.m. concerning the murder of a girl whose body had been
found in Sainte-Foy. The next day, the murder of France Alain made the
headlines of most of the media in Quebec.
(15) At about 11:15 on the
evening of the murder, the appellant got a call from André Hébert, to whom he
offered a lift back to Montmagny. The appellant took the usual route, chemin
Sainte-Foy, although his attention was drawn by the light from the revolving
flashers indicating the police presence at the scene of the crime. The
appellant told his passenger that he was afraid it was [translation] “one of his friends who lives in the
neighbourhood”.
(16) In the days following the
murder, the appellant tried to obtain details concerning the circumstances of
France Alain’s death. He again approached the witness Mr. Laberge in an effort
to obtain information about France Alain’s last moments. He specifically wanted
to know whether she had suffered, whether she had said something before dying.
He even requested a copy of the autopsy report.
(17) On May 30, 1983, seven
months after the tragedy, the appellant visited the victim’s father, Fernand
Alain, and took part in a conversation that was recorded with the written
consent of Mr. Alain, but without the appellant’s knowledge. The appellant had
a strange conversation concerning the profile of France Alain’s murderer. Using
the third person singular to refer to the murderer, the appellant said on that
occasion that “he” had big problems, that “he” wanted to force France Alain to
do certain things, that “he” had decided that she would not belong to anyone
else, that “he” had acted impulsively and that “he” believed it was an accident
so that he could avoid feeling guilty. The appellant added that the murderer
was travelling on foot, that “he” had stayed near the scene of the crime and
that “he” had had to conceal the firearm in a garbage bag in order to avoid
being seen. In the course of that meeting, Fernand Alain gave the appellant a
photo of the woman who the appellant had once said could have become his woman
for life. The appellant could not recall that meeting until confronted with the
tape recording at the coroner’s inquest.
154 After
the preliminary inquiry, other evidence surfaced which confirmed earlier
testimony as to the appellant’s behaviour on the evening of the crime, among
them the following:
(1) The witness Christian
Thibault, a freelance journalist who was working for CHRC at the time of the
murder, said he was at the radio station a few minutes after the murder took
place, and placed the time at about 8:15 p.m. He recounted finding the
appellant there in a state of extreme tension bordering on panic. When
Thibeault questioned him about the source of this anxiety, the appellant
answered that a girl had just been [translation]
“shot” a few blocks from the station and he was trying to get details. Mr.
Thibault was so surprised at the appellant’s attitude and behaviour that when
he got home, he told his companion who confirmed the conversation in 1982. He
also discussed this event with a friend who also confirmed that fact.
(2) Another witness, Suzanne
Montminy, stated that she had known the appellant since 1979 and added that
during 1983 she had travelled from Québec to Montmagny several times in his
company. During one of those trips, the appellant told Ms. Montminy that a
sixtyish man had been seen near the scene of the crime, shortly after the
murder. However, the police investigators were not informed of the existence of
such a sixtyish witness before 1991. This information could not have come from
police sources.
155 At
this stage, even though the investigation was not complete, as is often the
case and as the evidence I have described indicates, there was a set of facts
from which it was possible, if they were admissible and believed, to establish
the appellant’s behaviour toward the victim before the murder. This supplied a
motive, and also the opportunity for the appellant to commit the crime, given
his proximity to the scene of the crime and the possibility that he could have
been away from his place of work at the time of the crime, as was the presence
of an object on the scene of the crime that could be connected to the
appellant’s place of work.
156 The
tape recording of the statement that the appellant gave to the police, which
was ruled inadmissible at trial, and the tape recording of the appellant’s
conversation with the father of the victim, which was ruled admissible at the
trial, were admissible at the civil trial, as was acknowledged by LeBel J.A.
(p. 428), with whom his two colleagues agreed on this point, and, as Beauregard
J.A. pointed out (at p. 435), [translation]
“[w]hile this evidence was inadmissible at the criminal trial, it was entirely
relevant in examining the conduct of the prosecutor”.
157 LeBel
J.A. placed great weight on these tape recordings in his analysis of the
conduct of the Crown attorney. However, the conversation between the victim’s
father and the appellant, which he described as [translation] “veiled admissions”, was, at the time it was
recorded in 1983, admissible in evidence, since Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145, and R. v. Duarte, [1990] 1 S.C.R. 30, were not
decided until later.
158 In
Duarte, which is of particular interest here, the Court held that
evidence obtained by the police both without the knowledge and against the will
of an accused to be inadmissible under s. 24(2) of the Canadian Charter of
Rights and Freedoms . At the time when the conversation with France Alain’s
father was recorded, in 1983, however, there was no reason to believe that
recording it was illegal and that evidence of the content of the recording was
inadmissible.
159 As
well, at the time the prosecution was initiated, the tape recording of that
conversation would likely have been ruled admissible at trial, as it in fact
was, having regard to the case law at that time, as we shall see later.
160 None
of the facts disclosed by the investigation at that time, taken in isolation,
was sufficient to establish the guilt of the accused. The question, however, is
whether that evidence, when added up and taken in its entirety, could
reasonably justify a finding of guilt under the test that applies to
circumstantial evidence, which I set out earlier.
161 Clearly
there was one essential element missing from this set of facts: the presence of
the appellant at or near the scene at the time of the crime. With that
evidence, however, the other elements would be viewed in a completely different
light. Aware of that missing element, the Crown attorney was of the opinion
that he did not have sufficient evidence to justify laying the charge, although
in his view, the evidence against the appellant was overwhelming, as he testified
at the civil trial: [translation]
“[T]he evidence at that time ... was overwhelming against, of course, one
witness – we often used the expression ‘the principal witness’, and that is
your client, Mr. Proulx – it was overwhelming, but not sufficient, of course,
to authorize laying the charge.”
162 After
the coroner’s inquest in 1986, and until the witness Paquet came forward, in
1991, no charge was laid. Mr. Paquet triggered the reopening of France Alain’s
case. In his testimony, the Crown attorney indicated that the insufficiency of
the evidence available in 1986 was attributable to the difficulty in
establishing that the appellant had been away from his place of work on the
evening of the murder and that he was present at the scene of the crime at the
time it was committed. The Crown attorney testified that, far from laying a
charge solely on the basis of that new witness, in 1991 he reconsidered all of
the already existing evidence:
[translation]
A. Listen, Mr. Corriveau, when
the witness Paquet came forward, obviously that shed a whole new light on the
France Alain case.
And I won’t conceal the fact
that this meant that we opened up the whole case again and so, in a way,
we did our homework over again.
We reassessed all of the
testimony that had been heard, all of the documents that had been seized, and
also all of . . . Mr. Paquet’s testimony, to determine whether we
should consider, in a way, whether a charge could, in a way, be authorized.
Q. So, if I am to understand
that it was the witness Paquet who ... who, if we could say, influenced you to
lay murder charges against my client?
. . .
A.No.
Listen, to answer your
question, Mr. Paquet was, I’m telling you, the trigger that led to
reconsideration of the whole case.
To answer your question, there
were no witnesses other than Mr. Paquet who prompted us to do our homework
over, that’s true. [Emphasis added.]
163 Up
to that point, the Crown attorney’s conduct is not open to criticism. He was
aware of his role, his responsibilities and the law, and he closed the file. In
1991, Mr. Paquet came forward spontaneously neither solicited nor earlier
interviewed by the investigators or the Crown attorney. He would say that when
the photograph of the appellant was published in a local newspaper, reporting
on the action in damages brought by the appellant after he was acquitted by the
Court of Appeal, he was struck by the eyes of an individual whom he described as
a [translation] “bearded man”
whom he said he had met on the evening of the murder. He claimed to have spoken
briefly with that person after his attention was drawn by a detonation while
walking along chemin Sainte-Foy near the scene of the crime and at the time of
day when it was committed, facts that he had earlier reported to police
officers but on which there had been no follow-up.
164 As
noted earlier, Mr. Paquet contacted the radio station CHRC in 1991 and asked
that his report be followed up, which Tardif, the investigator, did. After
interviewing Paquet and recording his statement, the investigator took him to
the scene of the crime and organized an identification session, at which he
showed him a photograph and told him that it was that of the appellant. Looking
solely at the eyes, Paquet said that these were the eyes of his “bearded man”.
When he examined the entire photograph, he corrected himself and said that it
was not him. Tardif then informed the Sainte-Foy police about his contact with
Mr. Paquet.
165 The
Crown attorney was informed by his superiors that he would have to interview
Paquet. He said that he took [translation]
“that event and that witness with a twenty-five-foot pole because, obviously, I
had a lot of reservations”.
166 On
March 11, 1991, Paquet, Tardif, the police investigator and the Crown attorney
met at the prosecutor’s office, where another informal identification session
was held. At that meeting, Paquet was shown eight photographs of the appellant
taken during a union demonstration on May 18, 1983. Mr. Paquet spontaneously
identified one of the photographs and said that he recognized his “bearded man”
on it.
167 The
Crown attorney did not readily accept Mr. Paquet’s version. To satisfy himself
as to this witness’s credibility and good faith, he ordered an investigation of
Mr. Paquet himself, his family and friends, and so on. Three of the people
questioned said that Mr. Paquet had indeed informed them of his encounter with
a “bearded man” during the hours following the murder, and this was the basis
of the belief that Paquet would be able to identify the appellant as the person
whom he had met on the evening of the murder in the circumstances already
described.
168 Armed
with this missing piece of evidence from the 1986 investigation, the Crown
attorney reevaluated the whole of the evidence and particularly the transcripts
of the police interviews, the coroner’s inquest report and Mr. Paquet’s
statement that he could identify the appellant. He was of the opinion that this
evidence provided mutual corroboration and pointed inexorably to the
appellant’s guilt, and was likely to result in the conviction of the appellant.
On March 20, 1991, after discussing it with his colleagues and superiors, he
authorized the laying of a first degree murder charge against the appellant,
relying on the circumstantial evidence revealed during the investigation and
his conclusion that it constituted reasonable and probable grounds for laying
the charge.
169 Having
regard to the objective and subjective criteria for establishing reasonable and
probable grounds which I described earlier, can it be said that, in the
circumstances of the case, the evidence then in the Crown attorney’s possession
constituted reasonable and probable grounds for laying the charge in question?
170 With
respect to the subjective element, from the record, it is apparent, in my
opinion, that the Crown attorney had a sincere belief in the appellant’s guilt.
His decision was not taken lightly; the investigation was reopened, not by the
Crown attorney of his own initiative, but only after Mr. Paquet spontaneously
came forward. He appeared somewhat reluctant to reopen the case even after Mr.
Paquet’s discovery. There is nothing in the evidence that would lead me to
believe that the Crown attorney had reason to believe that the appellant was
innocent; quite the contrary: in his view, the evidence was overwhelming.
171 The
objective element must be assessed from the time of the investigation and the
state of the law at that time. At the outset, I do not share the opinion of the
trial judge nor of LeBel J.A. that the case was based solely on suppositions
and suspicion. First, where there is solely circumstantial evidence, the
suppositions that are constructed are based on facts that are believed to be
verifiable. Thus circumstantial evidence does not require an unassailable
identification. As well, the facts that were uncovered by the investigation
shed light on motive; knowledge of the circumstances of the crime; the
accused’s use of his time at the time of day when the crime was committed, that
is, real opportunity to commit the crime; his knowledge of the use of a firearm;
the fact that the weapon was carried in a polythene bag, i.e. means to commit
the crime; his behaviour before and after the murder, that is, presence of a
guilty conscience; the contradictions when he was questioned; the conversation
with the victim’s father; and so on – all factors which, taken together, could,
if believed, constitute the basis of a circumstantial evidence case. (See on
this point R. v. Ferianz (1962), 37 C.R. 37 (Ont. C.A.); R. v.
Ruddick (1980), 57 C.C.C. (2d) 421 (Ont. C.A.).) I, therefore, reject this
aspect of the analysis of LeBel J.A., who, in my view, has declined to give
full weight at the outset to this set of facts.
172 On
this point, the two pieces of evidence that raised questions dealt with the
tape recording of the appellant’s conversation with the victim’s father and the
identification of the appellant by Mr. Paquet.
1. The
Tape Recording
173 With
respect to the tape recording of the conversation in question, I discussed earlier
the state of the law at the time when that conversation was recorded; the tape
recording was admissible at that time. According to the judgment of the Court
of Appeal in the criminal case, that recording should have been ruled
inadmissible at the trial under s. 24(2) of the Charter , pursuant to Duarte,
supra.
174 Evidence
obtained in violation of a provision of the Charter is not automatically
excluded in our law. Exclusion is an exceptional measure, as Zuber J.A. of the
Ontario Court of Appeal wrote in R. v. Duguay (1985), 18 C.C.C. (3d) 289
(at p. 306):
Granted that the Charter has
changed the law but it has not, overnight, transformed the healthy repute of
the administration of justice into a fragile flower ready to wilt because of
the admission of evidence obtained as a result of a violation of the Charter
rights of an accused. The regard of the Canadian public for the administration
of justice prior to the Charter , despite the fact that evidence illegally
obtained was admitted as a matter of course, was, in my view, very high. The
repute of the administration of justice has not now suddenly become highly
vulnerable.
175 On
the question of exclusion of evidence, R. v. Collins, [1987] 1 S.C.R.
265, and R. v. Duguay, [1989] 1 S.C.R. 93, were the leading decisions at
that time in relation to the application of s. 24(2) of the Charter and
its review by an appellate court. According to Lamer J., for the majority, at
p. 283 of Collins: “In determining whether the admission of evidence
would bring the administration of justice into disrepute, the judge is directed
by s. 24(2) to consider ‘all the circumstances’. The factors which are to be
considered and balanced have been listed by many courts in the country”. Lamer
J. cited a number of those factors, which he then divided into three main
categories, including the nature of the evidence and the nature of the right
violated, and added: “Real evidence that was obtained in a manner that violated
the Charter will rarely operate unfairly for that reason alone” (p.
284). The good faith of the police and the seriousness of the violation were
important considerations, at the time, in assessing “all the circumstances”, as
Lamer J. in fact pointed out (at p. 285) in that decision, when he referred to R.
v. Therens, [1985] 1 S.C.R. 613, in which Le Dain J. wrote at p. 652:
The relative seriousness of the
constitutional violation has been assessed in the light of whether it was
committed in good faith, or was inadvertent or of a merely technical nature, or
whether it was deliberate, wilful or flagrant.
See also R. v. Thompson,
[1990] 2 S.C.R. 1111; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Sobotiak
(1994), 155 A.R. 16 (C.A.); and particularly, with respect to the Quebec case
law at the time, Comeau v. La Reine, [1992] R.J.Q. 339 (C.A.); Amadzadegan-Shamirzadi
v. Polak, [1991] R.J.Q. 1839 (C.A.).
176 The
exclusion of evidence that is otherwise admissible, under s. 24(2) of the Charter ,
is a matter within the discretion of the trial judge. According to the case law
at the time (Duguay (S.C.C.), supra), and since reiterated by
this Court (R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis,
[1997] 3 S.C.R. 341), an appellate court should only intervene if the judge has
made “some apparent error as to the applicable principles or rules of law” “or
has made an unreasonable finding”.
177 Stating
the unanimous opinion of the Court on this point in Belnavis, supra,
Iacobucci J., dissenting in part, wrote (at paras. 74-75):
This Court has emphasized on
numerous occasions the importance of deferring to the s. 24(2) Charter
findings of lower court judges, who hear evidence directly and are thus better
placed to weigh the credibility of witnesses and gauge the effect of their testimony:
see e.g., R. v. Duguay, [1989] 1 S.C.R. 93, at p. 98; R. v. Greffe,
[1990] 1 S.C.R. 755, at p. 783; R. v. Mellenthin, [1992] 3 S.C.R. 615,
at p. 625; R. v. Wise, [1992] 1 S.C.R. 527, at p. 539; R. v.
Goncalves, [1993] 2 S.C.R. 3, at p. 3; R. v. Stillman, [1997] 1
S.C.R. 607. In Greffe, Lamer J. (as he then was) stated as follows at p.
783:
I note that it is not the
proper function of this Court, absent some apparent error as to the applicable
principles or rules of law, or absent a finding that is unreasonable, to review
findings of courts below in respect of s. 24(2) of the Charter and
substitute its opinion for that arrived at by the Court of Appeal. . . .
I agree with this statement,
and I note that while it speaks of deference to the findings of Courts of
Appeal, the same principles apply, a fortiori, to the findings of
trial judges: Goncalves, supra; Stillman, supra,
at para. 68. As Cory J. states in his reasons, appellate courts in general
should not intervene with respect to a lower court's s. 24(2) analysis absent
an error of law or unreasonable finding. [Emphasis added.]
178 Cory
J., writing for the majority in Belnavis, supra, stated (at para.
35):
The majority in Stillman,
at para. 68, also reiterated the traditional position regarding
appellate review of a trial judge's findings regarding s. 24(2) :
. . . appellate
courts should only intervene with respect to a lower court's s. 24(2) analysis
when that court has made "some apparent error as to the applicable
principles or rules of law" or has made an unreasonable finding.
. . . [Emphasis added.]
179 It
must be noted that R. v. Burlingham, [1995] 2 S.C.R. 206, and Stillman,
supra, were decided after the appellant’s criminal trial was held and
are not proper guidelines for determining whether, at the time the criminal
charge was laid, the Crown attorney had reason to believe that the conversation
between the victim’s father and the appellant was admissible.
180 In
the appellant’s criminal trial, however, the Court of Appeal reversed the trial
judge’s decision based solely on the test laid down in Duarte, supra,
without having regard to the judicial deference in this matter affirmed by this
Court in Duguay in 1989: [1992] R.J.Q. 2047, 76 C.C.C. (3d) 316. At the
same time, however, the Court of Appeal acknowledged that when the trial judge
made that decision, there were particular circumstances that justified the
conclusion he had reached (at p. 327 C.C.C.):
[translation] It should be recognized that at the stage of the
trial at which the voir dire was held, the judge did not have before him
all the pieces of the “puzzle”, to use the expression employed by counsel in
the present case. These conversations between the appellant and Alain did not
appear, at first glance, to be as incriminating as the prosecution subsequently
showed them to be during the cross-examination of the appellant as well as in
its address to the jury.
181 In
this particular context, we cannot require more of the Crown attorney, at the
time he laid the charge, than was required of the trial judge at the time his
decision was made. It is one thing for the Court of Appeal to intervene in the
context of an appeal from a murder conviction, it is quite another to judge the
conduct of the Crown attorney at the time the charge was laid, in the context
of an action for damages for malicious prosecution.
182 Moreover,
there is nothing in the evidence from which it can be said that the police
acted in bad faith in this case by suggesting that the conversation be
recorded, any more than recording a similar conversation with a police informer
would have been at the time (R. v. Hebert, [1990] 2 S.C.R. 151). Here,
the additional fact that the tape recording was legal at the time it was made
was an important consideration in evaluating its admissibility under s. 24(2) .
As the trial judge concluded, [translation]
“this course of action in [1983], given that the police were acting in good
faith, in other words that it was permitted by the law . . . does not
bring the administration of justice into disrepute”.
183 The
Crown attorney should certainly have known what the law was when he authorized
the laying of the charge. Even relying on Duarte, however, it was far
from clear at the time that the evidence was inadmissible. The Crown attorney
was legitimately entitled to believe that, having regard to all the
circumstances of that recorded conversation, it could have been admitted in
evidence, as it in fact was at the criminal trial. As the Court of Appeal
pointed out with respect to the criminal trial, the trial judge was aware of
the decision in Duarte. Exercising his discretion, he weighed the
relevant factors in order to decide whether the admission of the evidence
obtained in violation of a Charter right was likely to bring the
administration of justice into disrepute, including the fact that: the
recording had been made legally in 1983, with the written consent of one of the
parties to the conversation; the conversation was entirely free and voluntary
on the part of the appellant and there was no compulsion; it was not a
statement made to a person in authority; the appellant had not been arrested or
charged; and the police were acting in good faith. In those circumstances, even
though the evidence was ultimately ruled inadmissible by the Court of Appeal in
August 1992, could not the Crown attorney have had reason to believe, at that
time, that the evidence would be ruled admissible, as it in fact was, by the
trial judge? As the Court of Appeal pointed out in its judgment in the criminal
case (at pp. 323-24 C.C.C.):
[translation] The trial judge’s understanding of the decision
in R. v. Duarte . . ., led him to conclude that even if these recorded
conversations were obtained in violation of s. 8 of the Charter (which is
admitted by the respondent), this evidence must be admitted because the police
officers “acted in good faith”. The good faith of the police officers,
according to the judge, can be inferred from the fact that at the time when
they intercepted the conversations, that is in 1983, “it was allowed by the
law”.
184 Having
regard to the context in which the trial judge admitted this evidence, and the
state of the law at that time, I conclude that the Crown attorney was entitled
to believe that the tape recording of the conversation between Mr. Alain and
the appellant would be ruled admissible at trial.
185 I
note in passing that in the appeal relating to the criminal trial, the Court of
Appeal acknowledged that the conversation between the appellant and Mr. Alain
had an [translation]
“incriminating” character (p. 327 C.C.C.).
2. The
Identification
186 The
second piece of evidence that the trial judge and LeBel J.A. found could not
support a belief in reasonable and probable grounds to charge the appellant
concerns the identification of the appellant by Mr. Paquet. On this point, the
Crown attorney is criticized for improper identification, insufficient
identification [translation] “by
the eyes” and failure to produce identification evidence at trial. It is
important to note, however, that the indictment was filed on the basis of
circumstantial evidence and was not based on the identification of the
appellant by Mr. Paquet, since the identification was only one of the elements
of that circumstantial evidence.
187 To
begin with, the identification must be placed in its proper context at the time
when Mr. Paquet came forward. Mr. Paquet is a witness unrelated to anyone, a
total stranger to the criminal trial and in fact unknown at that time, both to
the coroner and to the Crown attorney. He spontaneously recognized the appellant
from a photograph published in a newspaper, and it was his eyes that struck
him. He testified to that effect at the trial. In the photograph published in
the newspaper, the appellant had a beard; he had a beard in 1982, at the time
of the murder, as the evidence at the criminal trial established. The
individual whom Mr. Paquet said he had encountered and with whom he said he
conversed briefly near the scene at the time of day when the crime was
committed had a beard. The account of that encounter was corroborated by three
witnesses to whom Mr. Paquet had spoken about it in the hours following it.
Neither the credibility nor the good faith of this witness was impugned at any
time or in any way, despite his having been rigorously cross-examined. A little
over nine years after that encounter, when the criminal trial was underway, the
appellant no longer had a beard and his physical appearance was no longer the
same, as may be seen from photographs taken at that time.
188 The
description that Mr. Paquet gave to the Sainte-Foy municipal police
investigator, Matte, also provided a number of additional facts regarding the
height of the person he had seen (similar to the appellant’s), his age (35-40),
his beard, his somewhat long, curly hair, his round glasses, his checked sports
clothes and his backpack. That description was on all fours with the
description of the appellant in 1982, as confirmed by family and friends of the
appellant.
189 Mr.
Paquet added that in his brief conversation with the individual he encountered
on the evening of the murder, that person told him [translation] “[not to go and] see it”, that “it’s not a nice
thing to see.” In addition, he pointed out that when asked to identify him, he
clearly recognized his bearded man, without hesitation, and that when
encountered in the evening of the murder in 1982, the bearded man suddenly
disappeared.
190 On
the one hand, should the Crown attorney ignore this evidence? A prosecutor who
would ignore it would have been remiss in the duties of his office, and would
not have been acting in the public interest, which requires that persons who
are guilty of a crime be brought before the justice system to answer for their
crimes. The Crown attorney rightly took it into consideration. However, he did
not content himself with the witness’s account. He first wanted to ensure that
the witness could actually identify the appellant. It was solely in that
context that he showed him photographs of the appellant at around the time of
the murder, one of which was selected by Mr. Paquet, and not for formal
identification purposes at trial, as suggested by my colleagues in their
reasons. There is nothing particularly surprising about the fact that the Crown
attorney insisted on ascertaining that the witness could identify the
appellant, especially given that the identification centered on the
individual’s eyes (although it also related to the other indicia described
earlier).
191 At
that time there was no reason to hold an identification parade: no one had been
arrested or charged. This is an important detail. In R. v. Dwyer (1924),
18 Cr. App. R. 145, Hewart L.C.J. made a distinction between the identification
process before arrest and the formal identification process once the suspect
has been arrested. On that point, he said (at pp. 147-48):
It is quite true, as counsel
has urged on behalf of the Crown, that the police, in showing those photographs
to the persons who afterwards became witnesses, were not at all intending to
influence them in the task of identification, or to equip them for it. On the
contrary, they were seeking only to ascertain who were the persons proper to be
arrested.
. . .
One distinction, however, is
quite clear. It is one thing for a police officer, who is in doubt upon the
question who shall be arrested, to show a photograph to another person in order
to obtain information or a clue upon that matter; it is another thing for a
police officer dealing with witnesses who are afterwards to be called as
identifying witnesses to show to those persons photographs of those whom they
are about to be asked to identify beforehand. [Emphasis added.]
192 This
passage from Dwyer does not address formal identification, contrary to
the manner in which my colleagues Iacobucci and Binnie JJ. apply it. The
identification of the appellant was merely one element in the body of
circumstantial evidence on which the charge was based. The Crown attorney’s presence
at the identification does nothing to change that fact. Mr. Paquet was not an
eyewitness to the murder, and his testimony was not intended to identify a
murderer, but rather simply to add an additional element to the body of
evidence that was already available to the Crown attorney – an important one it
is true, but not the kind of identification evidence purporting to identify the
author of a crime. The purpose of the identification resorted to by inspector
Tardif and the Crown attorney was not to identify the suspect at trial or even
to identify an accused: no one had been arrested. In fact, at trial, the Crown
attorney did not even proceed to identify the accused. That leads to the
conclusion that the purpose of such identification was to ensure that the
witness’s identification was reliable.
193 Similarly,
as indicated, and only for the purpose of the liberal interpretation courts
here adopted on the question of identification, I reproduce a comment by
Sopinka, Lederman and Bryant, supra, at p. 320, on R. v. Swanston
(1982), 65 C.C.C. (2d) 453, where the British Columbia Court of Appeal admitted
out-of-court identification evidence:
In R. v. Swanston, due
to the accused’s change in appearance, the victim of a robbery was able to testify
at trial only that the accused resembled his attacker, although he had
positively identified the accused as his assailant on previous occasions (at a
line-up and at a preliminary hearing). The British Columbia Court of Appeal
allowed the victim to give evidence of the earlier identifications and
permitted police officers to testify that the person identified by the victim
on those occasions was in fact the accused. Accordingly, the law appears to
be that evidence of extra-judicial identification is admissible not only to
corroborate an identification made at trial, but as independent evidence going
to identity, at least in situations where the witness who made the earlier
identification is on the stand and can be subjected to cross-examination.
[Italics in original; underlining added.]
See also: R. v. Langille
(1990), 59 C.C.C. (3d) 544 (Ont. C.A.).
194 The
appellant submits that such identification was illegal and, therefore, not in
conformity with the law, and consequently, that the prosecution was vitiated.
An analysis of the case law on this point leads me to conclude that even an
“irregular” identification can be legally admissible in evidence, as it was in
this case. While its probative value may be weaker, it is then up to the judge
to caution the jury as to the circumstances in which the identification was
obtained and its probative value.
195 In
Mezzo v. The Queen, [1986] 1 S.C.R. 802, the headnote reads (at pp.
803-4):
In determining whether or not
to direct a verdict in cases which turn on eyewitness testimony, the trial
judge should address his mind to the factors going to the quality of the
identification evidence and, where the frailties in the evidence can be
remedied by a caution, he should leave the matter to the jury.
In the present case, the trial
judge erred in law in directing a verdict of acquittal on the basis solely of
the quality of the initial identification evidence. The substantial consistency
in the complainant's description of the accused given on three separate
occasions prior to any improper police procedures required him to put the
evidence to the jury with a caution as to the inherent frailty of the
identification evidence, coupled with an instruction to consider carefully the
conditions under which the identification is made. A jury is in just as good a
position as the trial judge to assess the witness' opportunity for observation
and the strength of his evidence based on that opportunity.
196 In
that same decision, Wilson J. did an exhaustive analysis of the impact of
irregular police procedures in relation to identification, and came to the
conclusion that the criteria elaborated in Canadian jurisprudence are less
rigid than those adopted in the United States and England (at p. 831):
I think that several
conclusions can be drawn from these authorities. First, the improprieties in
the line-up do not necessarily destroy otherwise good evidence. Second,
consistent with Shephard, damage can often be remedied by a proper
caution. Third, at this stage of the analysis the assessment of the
evidential basis for conviction depends not only on separate assessments of the
weaknesses in the initial observation and the weaknesses in the conduct of the
line-up but also on the impact of one or the other. As I stated at the
outset, the stronger the initial identification evidence the higher the degree
of subsequent impropriety it might take to undermine it. [Emphasis added.]
In reference to Marcoux v.
The Queen, [1976] 1 S.C.R. 763, Wilson J. went on to say (at pp. 832-33):
The discussion in Marcoux
concerns the fairness or justice aspect of police procedures and of their
impact on the accused's rights. There is no suggestion that apart from due
process considerations the potential for inaccuracy generated by the
station-house show-up rendered the evidence against Mr. Marcoux unsafe as a
basis for conviction. The implication is that because Mr. Marcoux's refusal
necessitated the show-up the fairness issue does not arise and that the
trial judge properly put the evidence to the jury in spite of the problems in
the quality of the initial observation and the subsequent identification.
[Emphasis added.]
197 In
Pretrial Eyewitness Identification Procedures (1983) (a study paper
prepared for the Law Reform Commission of Canada), N. Brooks confirms that the
rules set out in the case law regarding identification are very flexible. On
that point, he said (at p. 157):
When the police were justified
in showing photographs, the courts have never suggested that this procedure
ought to be followed by a corporeal identification test. In an Australian case,
where defence counsel argued that the witness who had first identified the
accused’s photograph should later have been shown a lineup containing the
accused, the Supreme Court of Australia stated: “If she had identified him in a
line-up it would have been impossible to say how far she was relying on the
photograph and how far on her recollection of her assailant on 17th June, and a
line-up might have been harmful to his case. It was certainly not necessary.”
198 In
R. v. Gagnon (2000), 136 O.A.C. 116, Weiler J.A. of the Ontario Court of
Appeal summarized the state of the law regarding identification (at para. 91):
The trial judge was correct
that the generally accepted state of the law is that, where evidence is
tainted, either because identification was suggested by the accused's presence
in the prisoner's box or as a result of inappropriate police procedures, the
evidence is not thereby rendered inadmissible. Rather, the evidence of tainting
is a factor going to the weight of the evidence which is exclusively the
province of the jury. See R. v. Mezzo, [1986] 1 S.C.R. 802;
. . . R. v. Miaponoose . . . [(1996)],
110 C.C.C. (3d) 445, at p. 458 ([Ont.] C.A.); R. v. Buric
. . . [(1996)], 106 C.C.C. (3d) 97, at p. 112 ([Ont.] C.A.), per
Labrosse, J.A., whose reasons were affirmed at (1997), 209 N.R. 241
. . . (S.C.C.). [Emphasis added.]
With respect to identification
at the preliminary stage, she wrote (at para. 94):
An out-of-court description
of the suspect given by a witness to the police, particularly a description
that contains a distinctive personal characteristic, is admissible in court as
a means of assisting the jury to assess what weight should be given to the
identification that has been made in court: [Tat], supra. Similarly,
a videotape or photograph of a suspect in the vicinity at the time the crime
was committed is also admissible provided that the accuracy and fairness of
what the videotape or photograph purports to depict is established: R. v.
Maloney (No. 2) (1976), 29 C.C.C. (2d) 431 (Ont. Co. Ct.), LeSage, Co. Ct.
J., as cited in R. v. Brown, [1999] O.J. No. 4864 (Gen. Div.), on the
voir dire relating to the admissibility of the tape from the surveillance
camera showing the homicide and robberies at the Just Desserts Café in Toronto.
In these cases, there is a means for the jury to measure the accuracy or
reliability of the identification made in court. As stated by Trafford, J., in Brown,
supra, there is an articulable basis for the jury to discount the frailties of
the identification evidence. Because the jury will be able to weigh the
evidence and to engage in a reasoning process respecting its admission or
rejection, the admission of the evidence will not be unfair to the accused.
[Emphasis added.]
199 In
R. v. Tat (1997), 35 O.R. (3d) 641, Doherty J.A. of the Ontario Court of
Appeal also did a thorough analysis of the question, and wrote (at p. 657):
The second situation in which
out-of-court statements of identification have been admitted arises where
the identifying witness is unable to identify the accused at trial, but can
testify that he or she previously gave an accurate description or made an
accurate identification. In these circumstances, the identifying witness may
testify to what he or she said or did on those earlier occasions and those who
heard the description given by the witness or witnessed the identification made
by the witness may give evidence of what the witness said or did. [Emphasis
added.]
200 I
decipher from these decisions that the Crown attorney acted in conformity with
the state of the law regarding identification. Regardless of its probative
value, the identification in this instance was not illegal.
201 It
was ultimately up to the jury to assess that identification evidence in light
of Mr. Paquet’s testimony at trial, and it was up to the judge to caution the
jury regarding its probative value in his charge to the jury.
202 As
regards the conduct of the Crown attorney when he laid the charge, however,
having regard to the foregoing, it is reasonable to conclude that on the
question of the identification by Mr. Paquet, the Crown attorney could hold a
reasonable belief that this evidence was sufficient to meet the third criteria
of Nelles.
203 At
this point, and as an aside, I note that in cases where an identification is
founded solely on a particular feature, such as a tattoo, a scar, a blemish,
the shape of a nose – identifications that are abundant in the case law, it is
often impossible to proceed in the ordinary manner and hold an identification
parade. Where would one find people who have the same characteristics? In the
absence of those characteristics, the presumed perpetrator of the crime would
immediately be recognized and the identification would be no more “proper” than
what the witness did here. Had Mr. Paquet been shown a number of photographs of
other “bearded men”, and had he identified the appellant definitively in one of
those photographs, the identification would certainly have carried more weight.
But the fact that this recognized method was not used is not fatal,
particularly in a context where Mr. Paquet had already spontaneously identified
the appellant from a newspaper photograph at a time when he was unaware that he
would be a witness at the trial and had not been involved in any earlier
procedure in connection with the charge. Even in the absence of any other
identification session organized by the investigators and the Crown attorney,
the Crown attorney could have called Mr. Paquet to testify at the trial based
on the original identification. I believe that the identification of the
appellant using the photographs was intended only to reassure the Crown
attorney before pursuing the investigation any further. In fact, the Crown
attorney then pursued his investigation, so he could be satisfied, first, of
the credibility and good faith of the witness, and second, of the convergence
of the other evidence then in the file. He certainly cannot be criticized for
doing this.
204 Did
the fact that the identification was ruled to be insufficient because it
related solely to the eyes and beard require the Crown attorney to close the
case? Not in my opinion. This is true even if we believe that the method of
identification chosen was inappropriate or negligent. The Crown attorney is
neither judge nor jury, and he had the right, and I would go so far as to say
the duty, to take that evidence to the justice system, provided that he himself
believed that it was valid. There is nothing in the record to suggest that this
was not the case and that he acted in bad faith. This was a very important
piece of evidence in the structure of this case, and of itself, it put the
appellant at the scene of the crime at the time of day when it was committed,
and corroborated other evidence such as, in particular, the use of the
polythene bag that was later found near the scene of the crime, the appellant’s
opportunity to leave work at that precise time of day, and so on.
205 Mr.
Paquet testified at the trial about his encounter and all the facts that he had
recounted to the investigators and the Crown attorney. There is no doubt that
the jurors believed him. The Crown attorney was criticized for not asking Mr.
Paquet to identify the appellant at trial. In his argument at trial, the Crown
attorney did say that he had deliberately refrained from asking Mr. Paquet to
identify the appellant for fear that he would be unable to recognize him, and
he added: [translation] “if I had
asked the question, I would have been making the witness contradict himself.
That would have been brilliant: ‘Do you see your bearded man, sir? I don’t see
him.’” On the one hand, the explanation seems logical: in fact, at the date of
the trial, the appellant no longer looked like the “bearded man” whom the
witness had encountered more than six years earlier and identified from
photographs that were more or less contemporaneous with the murder. On the
other hand, this could have been a tactic on the Crown attorney’s part, that we
may or may not agree with. However, the opportunity opened to the defence to
have the witness contradict himself was obvious, a fact the Crown attorney may
well have counted on, all the while perhaps thinking that the witness would
reaffirm his identification from the photograph published by the newspaper. It
is also important to recall that the defence in cross-examination refrained
from attempting to have the witness contradict himself, a matter for which the
Crown attorney can surely not be criticized.
206 When
the evidence in the Crown attorney’s possession at the time he authorized the
laying of the charge against the appellant for the first degree murder of France
Alain is examined in its context and in the context of that time, in light of
the nature of the evidence and the state of the jurisprudence and of the law at
the time, as well as the duty of a Crown attorney who sincerely and in good
faith believes that the perpetrator of a murder is guilty and that there are
reasonable and probable grounds to justify laying a charge, I am satisfied that
the Crown attorney could plausibly have believed, at that time, that he had
sufficient reasonable and probable grounds to charge the appellant. It must not
be forgotten, in this analysis, that at the preliminary inquiry the judge
committed the appellant for trial. It is difficult to argue, in these
circumstances, that the evidence in the Crown’s possession was so non-probative,
or so tenuous, as one would have us believe. It seems to me that if that was
the case, there would have been no committal for trial. Moreover, the appellant
was found guilty by the jury at the end of his criminal trial. The standard of
proof beyond a reasonable doubt does not apply to the Crown attorney at the
time the charge is laid, it applies only at trial; otherwise, more would be
asked of the Crown attorney than of the judge at the preliminary inquiry and at
trial (United States of America v. Shephard, [1977] 2 S.C.R. 1067; R.
v. Charemski, [1998] 1 S.C.R. 679).
207 As
Ritchie J. said in Shephard, supra, at p. 1080: “a trial judge
sitting with a jury [must decide] whether the evidence is ‘sufficient’ to
justify him in withdrawing the case from the jury and this is to be determined
according to whether or not there is any evidence upon which a reasonable jury
properly instructed could return a verdict of guilty”.
208 In
Charemski, McLachlin J., dissenting but not on this point, accurately
summarized the state of the law concerning the role of the judge at the
preliminary inquiry stage. On that question, she reiterated at para. 26 the
principles laid down in Shephard, supra:
Until recently, no one
questioned the rule that on a motion for a directed verdict the trial judge
must determine whether there is sufficient evidence to permit a properly
instructed jury, acting reasonably, to convict, with the implied correlative
that the trial judge must weigh the evidence in the limited sense of
determining whether it is capable of supporting essential inferences the Crown
seeks to have the jury draw. However, in this case the Crown argues that the
test has been altered in cases of circumstantial evidence by two decisions of this
Court: Mezzo, supra, and Monteleone, supra. I do
not agree. While some of the language of these cases is confusing, a closer
reading suggests that the justices had no intention of discarding the
time-hallowed and universally accepted test for directed acquittals.
209 Finally,
recently, in R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54, at paras.
30 and 32, McLachlin C.J. discussed the task of the judge at a preliminary
inquiry:
In performing the task of
limited weighing, the preliminary inquiry judge does not draw inferences from
facts. Nor does she assess credibility. Rather, the judge’s task is to
determine whether, if the Crown’s evidence is believed, it would be
reasonable for a properly instructed jury to infer guilt.
. . .
This result would obviously be
inconsistent with the mandate of the preliminary inquiry justice as is
expressed in s. 548(1), which requires the preliminary justice inquiry to
consider “the whole of the evidence”. Further, it would undermine one of the
central purposes of the preliminary inquiry, which is to ensure that the
accused is not committed to trial unnecessarily: see R. v. Russell,
[2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. Thus the traditional formulation
of the common law rule should not be understood to foreclose consideration of
defence evidence. ... Whatever the evidence of the Crown and defence, the
judge must consider “the whole of the evidence”, in the sense that she must
consider whether the evidence, if believed, could reasonably support a finding
of guilt. The question is the same whether the evidence is direct or
circumstantial. [Emphasis added.]
210 One
must assume that the judge at the preliminary inquiry was cognizant of the
state of the law when he committed the appellant for trial. If he considered
the evidence offered by the Crown attorney to be sufficient in that respect,
the Crown attorney cannot be criticized for reaching the same conclusion.
211 The
fact that the Court of Appeal concluded on appeal of the guilty verdict that
the evidence presented at trial did not prove the appellant’s guilt beyond a
reasonable doubt, as it said, and that the trial judge committed errors, is one
thing. Assessing the conduct of the Crown attorney when the criminal charge was
laid is quite another.
212 In
short, like Beauregard J.A., [translation]
“I cannot say that when the prosecutor authorized the information, he deviated
tangibly from the conduct of a reasonably competent and responsible prosecutor”
(p. 435). I do not share the severe approach to the Crown attorney’s conduct
taken by LeBel J.A. In my opinion, he applied to the Crown attorney’s conduct
not only the concept of fault in Quebec civil law, but also the standards of
the criminal law in 1999, i.e. at the time when the Court of Appeal rendered
its judgment in the civil action. The time to which we should refer in
evaluating that conduct is the time when the indictment was filed.
213 Strictly
speaking, in view of my conclusion that the Crown attorney had reasonable and
probable grounds for laying a charge, it is not necessary to address the
question of malice. I consider it solely in case there is a difference of
opinion with respect to my analysis concerning the existence of reasonable and
probable grounds.
(d) Malice
214 The
definition of malice in Nelles, the essential element of which is the
pursuit of an improper purpose, has been consistently applied by the courts in
Canada. (See on this point: Boudreault v. Barrett (1998), 219 A.R. 67
(C.A.); Thompson v. Ontario (1998), 113 O.A.C. 82; Reynen v. Canada
(1995), 184 N.R. 350 (F.C.A.); Milgaard v. Kujawa (1994), 118 D.L.R.
(4th) 653 (Sask. C.A.); Prete v. Ontario (1993), 16 O.R. (3d) 161
(C.A.); Deline v. Kidd, [2001] B.C.J. No. 645 (QL), 2001 BCSC 491; Monette
v. Owens (2000), 144 Man. R. (2d) 55 (Q.B.); Charemski v. Ontario,
[2000] O.J. No. 5231 (QL) (S.C.J.); Fiset v. Toronto (City) Police Services
Board, [1999] O.J. No. 3731 (QL) (S.C.J.).) In Boudreault v.
Barrett, the Alberta Court of Appeal in fact concluded, at para. 14: “There
is no indication of malice. The appellant has not produced any evidence
suggesting that any of the respondents acted out of spite, ill-will or
vengeance toward him. Nor is there evidence that any of the respondents were
inspired to initiate and prosecute the charges against the appellant by any
motive other than the fulfillment of their duties to enforce the criminal law.”
215 The
burden of proof to be met here is very high, as Lamer J. pointed out in Nelles,
supra: “the burden [of proof] on the plaintiff is onerous and strict”
(p. 197). As I noted in that decision: “Attorneys General and Crown Attorneys
are often faced with difficult decisions as to whether to proceed in matters
which come before them. It is unfortunate that, like all human beings, they
cannot be immune from error [but the] freedom of action of Attorneys General
and Crown Attorneys is vital to the effective functioning of our criminal justice
system” (p. 223).
216 In
any event, the appellant must show on a preponderance of evidence that there
was an improper purpose and that the powers of the prosecutor were perverted to
that end. The malicious use of the office may not have been accidental: it must
be deliberate. As Lamer J. wrote in Nelles, at pp. 196-97: “We are not
dealing with merely second-guessing a Crown Attorney’s 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” (emphasis added).
217 This
standard, the deliberate and malicious use of the office, is a high and clear
one, in that it calls for proof of the subjective intent of the prosecutor to
act out of malice or with an improper purpose by perverting the power of the
office. It must be applied strictly, and we must avoid any interpretation that
leaves any room for uncertainty in its application.
218 Thus
a Crown attorney will not be personally uncertain as to whether a violation has
occurred and his independence to decide and act according to his good judgment
and the means available will be protected. Moreover, individuals will be spared
involvement in pointless legal proceedings that could interfere with the proper
administration of justice.
(i) Appellant’s
Argument
219 The
appellant contends that the Crown attorney was looking for a conviction at any
cost, and, therefore, that he acted with an improper purpose. He recites a
number of facts in support of his argument.
220 The
appellant asserted that the prosecution had a personal character, since the
appellant had brought action in 1991 against Tardif, the retired investigator,
and a journalist at CHRC for damages caused to the appellant by the defamatory
statements they had allegedly made. The appellant alleged in that case that
they had spread rumours publicly that he was guilty of the murder of France
Alain.
221 The
appellant relied first on the initial identification session in which Mr.
Paquet participated, at which the police officer suggested the appellant’s
name, showed the witness only one photograph and argued with him when he denied
recognizing the appellant. The appellant also impugned the second
identification session at which Mr. Paquet was shown eight photographs, all of
the appellant. In the appellant’s submission, that identification session was
utterly malicious, subjective and biased; he said that the Crown attorney knew
the circumstances in which the first session had been held and he approved it
nonetheless.
222 The
appellant also impugned the conduct of the Crown attorney during argument,
including his use of the tape recorded conversation between the victim’s father
and the appellant, to show that the Crown attorney was acting in pursuit of an
improper purpose.
(ii) Respondent’s
Argument
223 The
respondent argued that there was no evidence from which it could be concluded
that the Crown attorney had adopted a conduct that denoted a desire to cause
harm and an intent to cause prejudice to the appellant or to divert the process
of the criminal justice system from its proper purposes. The respondent is of
the view that, in this case, the Crown attorney had a sincere conviction of the
appellant’s guilt in his mind. In his submission, the evidence offers no
support for the conclusion that the Crown attorney acted with the sinister
purpose of obtaining a conviction with disregard for the law.
(iii)
Analysis
224 If
suspicion and supposition there be, this is where they are found: there is
simply no evidence of malice. On this point, I would refer to the appellant’s
assertions concerning the Crown attorney’s malice.
225 With
respect to the first allegation against the Crown attorney, the mere fact that
he authorized the laying of a criminal charge which resulted in a verdict of
acquittal cannot support the conclusion that there was malice on the part of
the Crown attorney. For one thing, this would be completely contrary to the
standard of conduct set out in Nelles; for another, it would place an
obligation on the Crown attorney in respect of the result, and there is no
justification for this here. In addition, a standard of that nature would
amount to denying the Crown attorney any immunity.
226 The
complaint on which the appellant mainly focused relates to the Crown attorney’s
lack of reasonable and probable grounds for laying the criminal charge, which
he characterized as “improper purpose”. I shall not revisit the question of
whether there were reasonable and probable grounds here, as I have addressed it
fully, other than to say that my conclusion on that point rules out the
possibility that the Crown attorney was pursuing any “improper purpose” on this
ground.
227 The
appellant referred to the publicity surrounding the defamation action that he
brought against various people, including Tardif, the investigator, and André
Arthur, the radio host, who, the appellant alleged, had spread the rumour that
he was guilty of the murder of France Alain. He suggested that the Crown
attorney acted only to calm the public clamouring, with disregard for the
rights of the appellant.
228 The
Crown attorney had nothing to do with the defamation action, and there is
nothing in the evidence to connect him to that action, directly or indirectly.
The evidence in the record establishes that it was Mr. Paquet’s coming forward
that influenced the conduct of the Crown attorney, and not the publicity
surrounding the civil defamation action.
229 While
it is true that Mr. Paquet first went, on his own initiative, to CHRC, where
André Arthur was working at the time, the Crown attorney cannot be criticized
for this, as Mr. Paquet was completely unknown to him at the time.
230 In
addition, contrary to the hypotheses stated by my colleagues Iacobucci and
Binnie JJ. concerning the alleged collusion between Mr. Paquet and Messrs.
Arthur and Tardif, there is not an iota of evidence in the record that could
connect Mr. Paquet to Mr. Arthur. When he was questioned on that point, Mr.
Paquet testified: [translation]
“No, I have never spoken to him, I have never seen him in a restaurant, I have
never, on any occasion, I have never spoken to him directly”. I would point out
that neither Mr. Paquet’s credibility nor his good faith was ever doubted
throughout this entire saga.
231 Relying
on a brief three-page summary, my colleagues reach the conclusion that it was
the media uproar surrounding the defamation action against Mr. Arthur and
others that prompted Mr. Paquet to approach the CHRC radio station rather than
the police. However, that statement needs to be considered in the context of
Mr. Paquet’s entire testimony, both at the criminal trial (102 pages) and at
the civil trial (91 pages). When he was questioned by counsel for the appellant
at the civil trial, Mr. Paquet testified that he had gone to CHRC in 1991
because he had in the past recounted to the Sainte-Foy police his encounter on
the evening of the murder, and told them: [translation]
“I saw a bearded man at such a time and in such a place”, and that on that
occasion he had left his contact information with the constables, who never
called him back.
232 When
he testified at the civil trial on March 7, 1997, and was examined by counsel
for the appellant concerning the reason why he did not go to the police on the
morning that he visited CHRC, Mr. Paquet replied: [translation] “I had already been there.” This is the context
in which he came forward a second time, in February 1991, when he saw a
photograph in the newspaper, and said that he had recognized the bearded man he
had encountered on the evening of the murder. He then decided to go to the
radio station on his own initiative. There, he met with a young trainee who
introduced him to the journalist, Christian Thibault. After telling him about
the encounter in question, he asked that they call him back. It was after that
visit that Tardif, the investigator, contacted him and went to interview him at
home, and it was Mr. Tardif to whom Mr. Paquet gave a complete tape recorded
statement, which Mr. Tardif gave to the Sainte-Foy police.
233 There
is no evidence that the Crown attorney was aware of these facts before he was
informed of them, later, by Mr. Tardif. The evidence is actually to the
contrary. How then, in the total absence of any evidence, can the appellant
connect the Crown attorney to the attention given to his defamation action in
the media?
234 As
I noted earlier, Mr. Paquet was unknown to all of the players in this case at
the time of that appeal. He was a stranger to the process: he was not sought
out by any party to the process. He was a party neither to the coroner’s
inquest nor to the police investigation; the Crown attorney was unaware of his
existence. His good faith and his credibility were subsequently tested and were
never doubted.
235 With
respect to the Crown attorney, it was only at the request of his superiors that
he reopened the case, and here again, with some reluctance and, given the
evidence, with no great enthusiasm. In those circumstances, and given that the
appellant has failed to provide any other evidence, it cannot be concluded that
the publicity in question had any connection with the conduct of the Crown
attorney, let alone with any malice on his part.
236 The
appellant also attacked the identification session that Mr. Tardif had Mr.
Paquet attend. At that time, Mr. Tardif was no longer in charge of the
investigation for the Sainte-Foy police; he was never employed by the Attorney
General He was quite simply retired. Here again, the conduct of Mr. Tardif, the
investigator, whatever it may have been, cannot be connected to the Attorney
General, from whom he had received no mandate, nor to the Crown attorney, from
whom he had received no instructions and who was even unaware of the existence
of the new witness. Certainly the identification could have been conducted
differently, but the charge was laid based on the circumstantial evidence, one
element of which was the identification made by Mr. Paquet. In addition, the
case law relating to the admissibility of improper identification evidence is
very liberal.
237 The
Crown attorney cannot be criticized for the acts of an officer who was at that
time retired from the Sainte-Foy police (and certainly no malice can be found
on the Crown attorney’s part based on those acts), when the Crown attorney was
unaware of those acts, for which Mr. Tardif had received no mandate from the
Crown attorney. There is nothing particularly surprising about the fact that
the Attorney General, through the Sainte-Foy police, subsequently obtained Mr.
Tardif’s services to pursue the investigation: he was the one who had conducted
the entire investigation in this case from the beginning. It was logical for
him to pursue the investigation rather than assigning it to another
investigator who knew nothing at all about the case.
238 With
respect to the identification of the appellant by Mr. Paquet, I share the
opinion of Beauregard J.A. (at p. 434):
[translation] . . . even if the value of the
identification made by Paquet was doubtful in itself, the prosecutor, rightly
or wrongly but in good faith, was of the opinion that Paquet’s story and the
other evidence then in hand provided mutual corroboration. With respect for the
contrary opinion, I am of the view that the prosecutor did not exhibit malice
within the meaning of Nelles. The prosecutor acted in good faith, and
given Paquet’s story and the other evidence, I cannot say that there was a patent
absence of the reasonable and probable grounds needed for authorizing the
laying of the information. [Emphasis in original.]
239 The
appellant contends that the Crown attorney’s use of the conversation between
the victim’s father and the appellant in his argument at trial was malicious. I
have discussed the admissibility of that conversation at the time it was
recorded, and I will not revisit that question. If, as the Crown attorney
believed at that time, the tape recording of that conversation was admissible
in evidence, and since it had then been ruled admissible by the trial judge,
the Crown attorney was entitled to invite the jury to replace the pronoun “he”
with the pronoun “I” and cannot be criticized for doing so, since in so doing
he was inviting the jury to [translation]
“conclude that only the perpetrator of the crime could have talked like that”,
as Brossard J.A. pointed out (p. 440). In any event, there is no indication of
malice on the part of the Crown attorney in making that argument.
240 There
is one other fact that seems to me to be of considerable importance in
examining malice, which does not appear to have attracted the attention of the
Court of Appeal. The Crown attorney was not handling this case alone; rather,
he was handling it with the full knowledge of his colleagues and his superiors,
whom he consulted. The Crown attorney, who became counsel in this case only in
1986, was informed by his superiors that he had to meet with Mr. Paquet. He
took [translation] “that event
and that witness with a twenty-five-foot pole because, obviously, [he] had a
lot of reservations”. After the March 11 session with Mr. Paquet, the Crown
attorney informed his superiors about the events in question and asked to be
relieved of his day-to-day responsibilities [translation]
“so that [he] could sift through the case from top to bottom”. Before
authorizing the laying of a murder charge against the appellant, the Crown
attorney consulted his colleagues for about two hours, and followed the manual
of guidelines relating to authorizing charges.
241 When
examined objectively, the conduct of the Crown attorney in this case comes
nowhere near the threshold required in order for relative immunity to be
lifted, under the tests in Nelles.
242 In
short, there is not an iota of evidence that the Crown attorney acted for
personal purposes, out of vengeance or ill-will toward the appellant, in bad
faith or beyond his mandate for improper purposes, or that he committed a fraud
on the law. The fact that he may have lacked perspicacity in failing to
anticipate all of the difficulties that arose at the trial does not get us to
the rigorous threshold laid down in Nelles for lifting the relative
immunity enjoyed by the Attorney General and by Crown attorneys in such
matters. A careful examination of the facts in evidence in the civil action
leads me to conclude that the Crown attorney acted within the bounds of his
functions as a public officer, by prosecuting an individual whom he believed,
in good faith, to be guilty of a crime. He was entitled to believe, at that
time, that he had sufficient reasonable and probable grounds to charge him. It
should not be forgotten that there was only circumstantial evidence. The burden
of showing that the Crown attorney acted with malice in laying the criminal
charge rested on the appellant, and in my opinion he has failed to meet that
burden. (See on this point a similar conclusion in Perron v. Québec
(Procureur général), [2000] Q.J. No. 4700 (QL) (Sup. Ct.), at para. 950.)
243 The
appellant has failed to prove that he was prosecuted maliciously for the murder
of France Alain, and so the Attorney General and the Crown attorney, who enjoy
the immunity in this respect conferred on them by Nelles, cannot be
found to have any extra-contractual civil liability.
VI. Conclusion
244 Considering
that the extra-contractual civil liability of the Attorney General of Quebec
and of the Crown attorney for malicious prosecution is part of the public law
of Quebec;
245 Considering
that the public law of Quebec in this matter is governed by the public common
law;
246 Considering
that the decision in Nelles applies integrally in Quebec to malicious
prosecution by the Attorney General and Crown attorneys;
247 Considering
that as a consequence, the Attorney General and Crown attorneys enjoy relative
immunity in respect of such actions;
248 Considering
the protection that this immunity confers against extra-contractual civil
liability for malicious prosecution;
249 Considering
that the facts alleged against the Attorney General and the Crown attorney in
this case do not meet the test set out in Nelles, having regard to the
role and duties of the Attorney General and of Crown attorneys in respect of
prosecutions, as well as the evidence in the record that establishes that, at
the time the prosecution was initiated, the Crown attorney could reasonably
have believed that he had reasonable and probable grounds to charge the
appellant, and that he did not act with malice;
250 I
would, therefore, affirm the majority decision of the Court of Appeal and I
would dismiss the appeal. Like the Court of Appeal, I would do so without
costs.
Appeal
allowed with costs, L’Heureux-Dubé,
Gonthier and Bastarache JJ. dissenting.
Solicitors
for the appellant: Fasken Martineau DuMoulin, Québec.
Solicitors
for the respondent: Saint-Laurent, Gagnon, Québec.