2021 NBCA 18, 2021 NBCA 18

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 105-19-CA CHRISTOPHER TINGLEY APPELLANT CHRISTOPHER TINGLEY APPELANT - and - - et - THE ATTORNEY GENERAL OF CANADA, MARK JANES, JEAN (CHICO) BELLIVEAU, MICHEL BERTRAND, KATHRYN GREGORY, NICOLE POIRIER, GABRIEL BOURGEOIS and DEBORAH CRAIG RESPONDENTS LE PROCUREUR GÉNÉRAL DU CANADA, MARK JANES, JEAN (CHICO) BELLIVEAU, MICHEL BERTRAND, KATHRYN GREGORY, NICOLE POIRIER, GABRIEL BOURGEOIS et DEBORAH CRAIG INTIMÉS Tingley v.

The Attorney General of Canada et al., 2021 NBCA 18 CORAM: The Honourable Chief Justice Richard The Honourable Justice French The Honourable Justice LeBlond Tingley c.

Le procureur général du Canada et autres, 2021 NBCA 18 CORAM : l’honorable juge en chef Richard l’honorable juge French l’honorable juge LeBlond Appeal from a decision of the Court of Queen’s Bench: September 9, 2019 Appel d’une décision de la Cour du Banc de la Reine : le 9 septembre 2019 History of Case: Historique de la cause : Decision under appeal: 2019 NBQB 179 Décision frappée d’appel : 2019 NBBR 179 Preliminary or incidental proceedings: 2015 NBCA 51 Procédures préliminaires ou accessoires : 2015 NBCA 51 Appeal heard: September 30 and November 30, 2020 Appel entendu : le 30 septembre et le 30 novembre 2020

Judgment rendered: April 22, 2021 Jugement rendu : le 22 avril 2021 Reasons for judgment by: The Honourable Justice LeBlond Concurred in by: The Honourable Chief Justice Richard The Honourable Justice French Counsel at hearing: For the Appellant: Erica C.

Brown For the Respondents the Attorney General of Canada, Mark Janes, Jean (Chico) Belliveau and Deborah Craig: Angela Green and Ami Assignon For the Respondents Michel Bertrand, Kathryn Gregory, Nicole Poirier and Gabriel Bourgeois: Jason Cassie Motifs de jugement : l’honorable juge LeBlond Souscrivent aux motifs : l’honorable juge en chef Richard l’honorable juge French Avocats à l’audience : Pour l’appelant : Erica C.

Brown Pour les intimés le procureur général du Canada, Mark Janes, Jean (Chico) Belliveau et Deborah Craig : Angela Green et Ami Assignon Pour les intimés Michel Bertrand, Kathryn Gregory, Nicole Poirier et Gabriel Bourgeois : Jason Caissie THE COURT The appeal is dismissed. The cross-appeal is allowed with one set of costs in the amount of $5,000 in favour of Michel Bertrand, Kathryn Gregory, Nicole Poirier and Gabriel Bourgeois and one further set of costs in the amount of $5,000 in favour of the Attorney General of Canada, Mark Janes, Jean (Chico) Belliveau and Deborah Craig. LA COUR L’appel est rejeté.

L’appel reconventionnel est accueilli et l’appelant est condamné à payer une masse de dépens de 5 000 $ à Michel Bertrand, à Kathryn Gregory, à Nicole Poirier et à Gabriel Bourgeois ainsi qu’une masse de dépens de 5 000 $ au procureur général du Canada, à Mark Janes, à Jean (Chico) Belliveau et à Deborah Craig. TABLE OF CONTENTS Paragraph I. Introduction 1 II. Factual Context 16

III. The Motion Judge’s Decision IV. Grounds of Appeal V. Ground of Cross-Appeal VI. Standards of Review VII. Analysis A. The law on the causes of action pleaded 1. Negligent investigation (

a) Duty of care (

b) Breach of the standard of care (

i) Reasonable and probable grounds (ii) Was the standard of care breached? (iii) Collateral attack (

c) Compensable injury or loss 2. Malicious prosecution (

a) Against Crown counsel (

b) Against the Attorney General of Canada and the RCMP 3. Charter breaches B. Requirements of pleadings C. Rule 23 motions 1. Rule 23.01(1)(a) 2. Rule 23.01(1)(

b) D. The sufficiency of the Amended Claim 1. Negligent investigation 2. Malicious prosecution 3. Charter breaches 41 47 49 50 54 56 56 57 60 63 67 68 71 72 72 97 98 102 110 110 113 118 118 131

(

a) Section 7 (

b) Section 8 (

c) Section 9 (

d) Section 11 E. Amendment of pleadings F. Cross-appeal VIII. Disposition 146 147 149 152 155 164 169 170 The judgment of the Court was delivered by LEBLOND, J.A. I. Introduction [ 1 ] In 2009, the appellant, Christopher Tingley, was charged with 19 offences under the Criminal Code of Canada . They were part of a larger number of charges laid following an extensive police investigation that featured telephone surveillance conducted pursuant to a wiretap authorization issued by the Court of Queen’s Bench. This culminated into a 57-count Information against eight individuals, including Mr.

Tingley. [ 2 ] Charges against four of the accused were withdrawn, and the prosecution of the remaining four, including Mr. Tingley, came to an abrupt end when, in December 2011, the Crown opted to call no evidence against them. In response, the defence moved for directed verdicts and the judge acquiesced. Acquittals were entered. [ 3 ] The Crown appealed, and this Court dismissed the appeal on the basis it constituted an abuse of the appellate process: R. v. Tingley , 2015 NBCA 51 , 444 N.B.R. (2d) 1 (“the criminal appeal decision”). [ 4 ] In January 2017, Mr.

Tingley commenced the underlying action against the respondents, in which he alleged a number of causes of action arising from the criminal proceedings. The respondents Mark Janes, Jean (Chico) Belliveau and Deborah Craig (the “RCMP”) were the officers who were involved with obtaining the wiretap authorization and who had general responsibility for the investigation.

They answered to the respondent the Attorney General of Canada. [ 5 ] The remaining respondents, Michel Bertrand, Kathryn Gregory, Nicole Poirier and Gabriel Bourgeois (“Crown counsel”), were employed by the Province of New Brunswick and involved in various capacities with the prosecution of Mr. Tingley. In addition to his prosecutorial duties, Mr. Bertrand was the wiretap agent who worked on securing its authorization.

Crown counsel answered to the Crown in right of the Province of New Brunswick, as represented by the Attorney General, who was not named in this action. [ 6 ] Following service of the original Statement of Claim, the RCMP, the Attorney General of Canada and Crown counsel filed and served Demands for Particulars, which, in part, asked for particulars in support of the following allegations: (

a) there was an absence of reasonable and probable grounds to commence and continue the investigation and prosecution;

(

b) the respondents were fuelled by malice or by a primary purpose other than carrying the law into effect in setting the criminal process in motion; (

c) the RCMP and Mr. Bertrand negligently conducted the investigation; (

d) Crown counsel negligently conducted the prosecution; (

e) Crown counsel engaged in prosecutorial misconduct; and (

f) the respondents committed “flagrant” violations of Mr. Tingley’s rights under ss. 7 , 8 , 9 and 11(b) , (

d) and (

e) of the Canadian Charter of Rights and Freedoms . [ 7 ] Mr. Tingley refused to provide these particulars in any of the three Statements of Particulars he served in reply.

Instead, he invoked Rule 27.06(1) of the Rules of Court to argue they constituted evidence that need not be pleaded. [ 8 ] The respondents filed motions seeking to have the Statement of Claim struck on three grounds: (1) it failed to disclose any reasonable cause of action; (2) it failed to plead the material facts for which the Demands for Particulars had been filed; and (3) even if properly pleaded, the causes of action against Crown counsel were barred by the Proceedings Against the Crown Act , R.S.N.B. 1973, c. P-18 (“ PACA ”). [ 9 ] The motions were not adjudicated. Instead, the parties agreed Mr.

Tingley’s Statement of Claim would be struck without prejudice to his right to file an Amended Statement of Claim (the “Amended Claim”) to address the concerns raised with the original pleading, particularly with respect to the absence of material facts. On September 5, 2017, the motion judge seized at the time signed a Consent Order granting Mr. Tingley until December 31, 2017, to file and serve his Amended Claim. [ 10 ] The Amended Claim contains extensive amendments but, as will be seen, the particulars of material facts originally requested are still absent.

As a result, in April 2018, the RCMP, the Attorney General of Canada and Crown counsel filed fresh motions. Crown counsel’s motion asked that the Amended Claim be struck: (1) pursuant to Rule 23.01(1)(

a) on the basis Crown counsel benefit from immunity from civil suit pursuant to ss. 4 and 21 of PACA ; (2) pursuant to Rule 23.01(1)(

b) on the basis it failed to disclose a reasonable cause of action; (3) pursuant to Rule 27.09(

e) on the basis it did not conform with the Rules of Court ; and (4) pursuant to Rule 27.09(

c) and s. 26(9) of the Judicature Act , R.S.N.B. 1973, c. J-2 , on the basis it constitutes an abuse of process in that it is a collateral attack on the issuance of the wiretap authorization.

[ 11 ] Finally, Crown counsel asked that their motion for the various relief be converted into a motion for judgment pursuant to Rule 37.10(a). [ 12 ] The RCMP and Attorney General of Canada’s motion asked that the Amended Claim be struck: (1) pursuant to Rule 23.01(1)(

b) on the basis it failed to disclose a reasonable cause of action; and (2) pursuant to Rule 27.09(

c) on the basis it constitutes an abuse of process. [ 13 ] The RCMP and the Attorney General of Canada also asked that their motion be converted into a motion for judgment on the relief claimed pursuant to Rule 37.10(a). [ 14 ] The motion judge granted all the relief requested by Crown counsel and most of the relief sought by the RCMP and the Attorney General of Canada. Mr.

Tingley appeals all the rulings, and the Attorney General of Canada and the RCMP cross- appeal the portion of the decision that declined some of their requests. [ 15 ] For the following reasons, I would dismiss the appeal and allow the cross-appeal. II. Factual Context [ 16 ] Richard J.A., as he then was, writing for the Court in the criminal appeal decision, sets out a detailed factual background, a good portion of which is germane to the disposition of this appeal. I will therefore draw liberally from his narrative in these reasons.

The paragraph numbers at the end of the quoted excerpts are from the criminal appeal decision. [ 17 ] I begin by pointing out that of all the causes of action pleaded in the Amended Claim, only three were pursued before the motion judge, namely: (1) malicious prosecution against all respondents; (2) negligent investigation against the RCMP, the Attorney General of Canada and Mr. Bertrand; and (3) breaches of Charter rights against the Attorney General of Canada. [ 18 ] The RCMP’s investigation began in 2007 and, in November of that year, Mr. Bertrand was assigned to act as Crown counsel and wiretap agent.

As noted, a 12-month authorization for the interception of private communications was eventually issued. [ 19 ] In December 2008, Ms. Gregory was assigned to work with Mr. Bertrand in the prosecution phase. Ms. Poirier was part of the prosecution team from January 2009 until late in 2010. Thereafter, Mr. Bourgeois was assigned to the team. Court proceedings were conducted mostly by Ms. Gregory and Ms. Poirier with Mr. Bertrand generally working on trial preparation. [ 20 ] During the proceedings, numerous substantive and procedural motions were heard. As Richard J.A. noted in the criminal appeal decision:

[…] The transcripts and the sheer volume of motions generally reveal a palpable and flagrant absence of defence cooperation with theprosecution. This type of conduct is antithetical to the civility that is expected of, and should prevail among, such professionals. Thehyperbole directed at Crown and police action could certainly be argued to be most unprofessional. […] [para. 11] [21] I hasten to note that counsel involved in the defence of the criminal prosecution were not counsel before us norbefore the motion judge below. [22] The first significant motion involving Mr.

Tingley in the criminal proceedings was for relief under the Charterin the form of a stay of proceedings on grounds of alleged “massive manifest deliberate non-disclosure of evidence.” The trial judgeruled on this motion by ordering disclosure of certain additional information, in addition to the voluminous material already disclosed,but made a point of noting the Crown counsel and RCMP had not, in any way, engaged in “massive manifest deliberate non-disclosure,”nor had they breached any Charter rights.

Indeed, the judge found Crown counsel were “genuine and honest in their representation to theCourt.” Moreover, as Richard J.A. noted: […] defence counsel had themselves not been diligent in seeking full disclosure, adding that “once they did make specific requests theCrown was quick to respond”.

In rendering his decision, the judge went on to chastise defence counsel for some of the unjustifiedallegations made against Crown counsel, stating that he was “convinced that had calmer, less contentious, more co-operative andcourteous attitudes prevailed, the necessity of proceeding with a near month long hearing of this nature could very well have beenavoided completely or at the very least significantly shortened”. [para. 22] [23] Pre-trial matters continued into 2010, ranging from lengthy disputes relating to what communications would beprivileged from Crown disclosure to a defence motion to have the trial judge recuse himself.

He declined to do so. [24] In May 2010, at the request of Crown counsel and on behalf of the Attorney General of New Brunswick, thecharges against four of the accused, other than Mr. Tingley, were stayed. [25] On August 31, September 9 and October 4, 2010, the trial judge ruled largely in the prosecution’s favourregarding the vast majority of the communications he had been asked to review in support of the prosecution’s claims of solicitor-clientor confidential informant privilege. [26] On October 7, 2010, Mr.

Tingley’s counsel advised the trial judge he would not challenge the wiretapauthorization pursuant to a Garofoli motion (R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 (QL)),nor would he request the affiants be cross-examined on the affidavits in support of the application. [27] However, on October 25, 2010, Mr. Tingley’s new counsel argued that the waiver of the Garofoli motionshould not preclude Parsons, Wilson or Vanweenan applications relating to the validity of the wiretap authorization on its face or on thesub-facial or substantive values of the affidavits filed in support.

These are in reference to Regina v. Parsons et al., (ONCA), [1977] O.J. No. 2425 (QL) (C.A.), aff’d (SCC), [1980] 1 S.C.R. 785, [1980] S.C.J. No. 22 (sub nom. Charette v.The Queen); Wilson v. The Queen, (SCC), [1983] 2 S.C.R. 594, [1983] S.C.J. No. 88 (QL); R. v. Chesson, (SCC), [1988] 2 S.C.R. 148, [1988] S.C.J. No. 70 (QL). [28] A succinct

summary of the significance or purpose of these applications is set out in the majority reasons inGarofoli: First there is a “Parsons voir dire,” named after R. v. Parsons (1977), (ON CA), 37 C.C.C. (2d) 497 (Ont. C.A.), aff’d (SCC), [1980] 1 S.C.R. 785, sub nom. Charette v. The Queen. The function of this hearing before the trial judge is todetermine such issues as whether the authorization is valid on its face, whether the police executed the interception within the terms ofthe authorization, and whether statutory requirements such as reasonable notice were complied with. The remedy is exclusion under s.178.16.

The second is the “Wilson application”. This hearing takes place before the issuing court, to determine the substantive orsubfacial validity of the affidavit. The remedy is the setting aside of the authorization. The third is a “Garofoli hearing”. This is a hearingbefore the trial judge to determine the compliance of the authorization with s. 8 of the Charter. The remedy is a determination under s.24(2) of the Charter. The fourth, and last, procedure is a “Vanweenan hearing”, so-called after one of the appellants in R. v. Chesson, (SCC), [1988] 2 S.C.R. 148.

This again is a voir dire before the trial judge, but with the object of determining whetherthe authorization names all “known” persons as required by ss. 178.12(1)(

e) and 178.13(2)(c). The remedy again is exclusion under s.

178.16. [para. 38 cited to QL] [ 29 ] On November 20, 2010, Mr. Tingley filed a Garofoli/Wilson motion that alleged there were insufficient grounds for issuing the wiretap authorization. He argued the affidavits filed in support contained misleading statements and demonstrated a reckless disregard for the truth. He argued any evidence obtained as a result of it was illegal and in violation of ss. 7 and 8 of the Charter . Defence counsel sought to cross-examine the affiants and Mr. Bertrand.

As will be seen, the prosecution ended before this motion could be adjudicated. [ 30 ] A further defence motion was filed seeking the disqualification of Mr. Bertrand as Crown counsel. That motion was dismissed summarily at the request of Crown counsel because the trial judge held it did not comply with the most basic and fundamental directions he had ordered.

As Richard J.A. noted in the criminal appeal decision, the trial judge was blunt: With respect to the request for an order that the defendants’ motion be struck, I note that from the outset of my involvement in this matter, and repeatedly on several occasions since then, most recently on Monday of this week, I have instructed counsel in the presence of the accused that any pretrial motions for relief, Charter or otherwise, would require filed written notices of motion brought in a timely manner and setting out clearly and concisely, (

a) the specific nature of the relief being sought; (

b) the legal grounds upon which the relief is sought; and (

c) the evidentiary foundation they will be relying upon or intend to establish in support of the motion. Defence counsel appear to be unwilling or unable to accept or follow those directions despite warnings that motions that do not comply may not be heard or entertained by the Court. Again, that was brought to their attention once again this past Monday.

At that time, Crown offered to the defence an opportunity to file those particulars or provide those particulars, and as I took the exchange during that session, counsel for the defence confirmed that they would not comply with Crown counsel’s request that they amend their motion or that they provide particulars of the grounds upon which they have based their request for the relief they are seeking as well as the evidentiary foundation upon which they base their claim.

Crown counsel then advised that it was seeking an order to strike the defence motion and would file a preliminary motion in that regard. [para. 59] [ 31 ] Richard J.A. continued: Although he granted the Crown’s preliminary motion and dismissed the accused’s motion to disqualify Mr. Bertrand, the judge did so without prejudice to the defence’s right to file a new motion. He indicated that, but for the Crown inviting him to decide in such a manner, he was “not certain that [the without prejudice] condition would have been included in [his] decision”.

He concluded by repeating that “if [defence] counsel wish to deliberately disregard the directions of the Court for whatever reason, they risk doing so at their clients’ peril”. [para. 60] [ 32 ] Defence counsel filed a second motion seeking Mr. Bertrand’s disqualification and dismissal from the prosecution team. As part of this hearing, several police officers were cross-examined. The last of these was Mr. Janes. He was questioned over several days in relation to the straightforward issue of Mr. Bertrand’s involvement during the investigation.

During the cross-examination, the following exchange took place, as noted by Richard J.A. in the criminal appeal decision: […] Q: You had agreed the last time you were testifying that he was an agent, correct? A: My Lord, that’s true, but that was a mistake. I – after having testified to that I left here, I went straight to the office, I checked

policy, and after having verified policy and exactly what is the definition of an agent, I realize that I had made a mistake on the stand. I in fact called Staff Sergeant Power to advise him: “Listen, I don’t know how we’re going to deal with this, but I – I said that Ron Jackson was – was an agent, and I know that he’s not an agent.” I was confused with the immunity agreement and I made a mistake with one part of the definition of what an agent is, according to RCMP policy. And in fact I apologize to the Court, My Lord, I – that wasn’t – was definitely not intentional.

There was nothing for the Crown to gain – or the police to gain by saying that he was an agent, and I just – I had made a mistake and I – I apologize. [para. 73] [ 33 ] Notwithstanding Mr. Janes had been given the customary caution not to discuss his testimony outside the courtroom given his cross-examination was not completed, his candid and spontaneous admission of having done so strictly because of a mistake he had made about referring to someone as a protected police agent, where that person was not such an agent, led to further defence allegations of misconduct.

As Richard J.A. noted in the criminal appeal decision: […] The circus of defence hyperbole reached a crescendo when one of the lawyers, referring to the testimony he had just heard, stated “I find myself at the point where for the first time in almost three decades of appearing in the courts of being on the verge of being violently ill”. [para. 74] [ 34 ] While Mr. Jackson’s statement had not been disclosed following a hearing held pursuant to s. 37 of the Canada Evidence Act , R.S.C., 1985, c. C-5 , the vast majority of it was ordered disclosed following Mr.

Janes’ testimony. [ 35 ] A prosecution motion sought the judge’s recusal, not because of any alleged bias, but because it was alleged that, by entering into and continuing the inquiry into Mr. Bertrand’s disqualification and dismissal, he improperly placed himself into a supervisory position over the Crown. In the alternative, Crown counsel requested the judge limit Mr.

Janes’ cross-examination on the basis the questions were straying far afield from legitimate inquiries into relevant matters. [ 36 ] In discussing the procedure leading to the prosecution’s recusal motion and his conclusion the defence had met the threshold issue permitting the second disqualification motion to proceed, the judge reviewed relevant authorities dealing with the principle of an Attorney General’s independence and ability to act free from interference by the courts, absent “flagrant impropriety.” In relying on Krieger v.

Law Society of Alberta , 2002 SCC 65 , [2002] 3 S.C.R. 372, he acknowledged the appointment of a particular person to prosecute a case falls into the category of “core” prosecutorial discretion, but that the potential removal of a prosecutor does not inhibit or interfere with the core discretion, nor does it amount to its supervision. [ 37 ] In the end, the judge refused to recuse himself and to limit cross-examination of Mr.

Janes. [ 38 ] When proceedings resumed on December 15, 2011, the following took place: […] [Crown counsel] informed the trial judge as follows: “[in] light of the December 9 th , 2011 decision denying the Crown’s request for recusal and denying the alternative request for advance limitation on the cross-examination of witnesses […] the Crown advises that the prosecution in this matter is no longer viable”. The prosecutor continued by stating: “the Crown will not be offering any evidence at trial”.

This led to defence motions for directed verdicts and to requests to lift the previously issued publication bans and have the items seized from the accused returned to them. In the circumstances, the trial judge granted the motions for directed verdicts and acquitted all accused. […] [para. 98] [ 39 ] In the criminal appeal decision, Richard J.A. expressed doubt as to whether the trial judge was correct in relying on Krieger in determining there had been no interference with core prosecutorial discretion. The doubt stemmed from the subsequent decision of the Supreme Court in R. v.

Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167, which had not been released at the time of the trial judge’s ruling and clarified Krieger . As Richard J.A. noted: […] In Anderson , Moldaver J., for the Court, acknowledged that “subsequent to this Court's decision in Krieger […], confusion has arisen as to what is meant by ‘prosecutorial discretion’ and the law has become cloudy” (para. 38). He took the opportunity to clarify the situation, and held that “prosecutorial discretion applies to a wide range of prosecutorial decision making” (para. 45).

In my view, the appointment of a particular prosecutor to a case might well fall in that category. However, as will be seen below, that question need not be resolved.

While Anderson held that “prosecutorial discretion is entitled to considerable deference”, it also confirms that “[i]t is not, however, immune from all judicial oversight” because the “Court has repeatedly affirmed that prosecutorial discretion is reviewable for abuse of process” (para. 48).

All this to say that, even if the appointment of a particular prosecutor to a specific case is part of prosecutorial discretion, there are circumstances that can nevertheless arise in which a court would be entitled to embark on an inquiry to determine whether the exercise of this discretion would constitute an abuse of process. According to Nixon , and repeated in Anderson , an abuse occurs when “there is evidence that the Crown’s decision ‘undermines the integrity of the judicial process’ or ‘results in trial unfairness’”.

Abuse will also be found when there is evidence of “improper motive[s]” or “bad faith” (para. 49 of Anderson ). In the present case, the trial judge recognized a threshold determination was to be made before allowing the accused to proceed with the Bertrand disqualification motion. It may be that the judge improperly conflated the procedural threshold he had imposed with the one Nixon says he should have applied, resulting in a threshold that was not stringent enough. However, if he did this, it would constitute an error in law, not one of jurisdiction.

Ruling that the threshold had been met, and proceeding with the motion, is a decision that was his to make. Entering into an inquiry designed to determine whether a particular prosecutor’s participation in the proceedings constitutes an abuse of process is part of the function of the trial judge where it has been shown that the threshold determination, designed to separate the wheat from the chaff, has been overcome. Thus, it cannot be said that by entering into the inquiry, even if erroneously ruling on the threshold issue, the judge exceeded his jurisdiction.

It must be recalled that, at this stage, the judge simply agreed to entertain a motion designed to determine whether an abuse of process had taken place. None of his rulings interfered with prosecutorial discretion. He did not, in fact, disqualify Mr. Bertrand.

He simply heard a motion to determine whether the decision to appoint him as a prosecutor, despite his extensive involvement in the investigation phase, might constitute an abuse of process. […] […] As stated earlier, I agree with the proposition that the decision not to call any evidence is generally immune from judicial scrutiny except, of course, where bad faith or an oblique motive can be shown. There is no indication of bad faith or oblique motive in this case. […] [paras. 135-138 and 140] [ 40 ] Against this background, Mr. Tingley commenced the underlying action.

As noted, before the motion judge, he limited his causes of action to negligent investigation, malicious prosecution and Charter breaches. III. The Motion Judge’s Decision A. Negligent investigation [ 41 ] Allegations under this cause of action were struck in their entirety as disclosing no reasonable cause of action except for those that allege the RCMP commenced and continued the investigation without reasonable and probable grounds. [ 42 ] The motion judge did not strike the allegations that the RCMP failed to properly investigate by not questioning Mr.

Tingley with respect to source information they had on him and by unreasonably attributing offences committed by others to him. B. Malicious prosecution

[ 43 ] These claims against Crown counsel were dismissed pursuant to Rule 23.01(1)(

a) of the Rules of Court on the basis they were barred by PACA . The judge converted this motion into a motion for judgment under Rule 37.10(

a) and granted judgment accordingly. [ 44 ] She then struck these claims against the RCMP pursuant to Rule 23.01(1)(

b) on the basis they did not disclose a reasonable cause of action. This motion was also converted into a judgment under Rule 37.10(a). C. Charter breaches [ 45 ] These claims were struck in their entirety pursuant to Rule 23.01(1)(

b) as failing to disclose a reasonable cause of action. The judge held any such cause of action cannot be established against individuals and granted judgment accordingly in their favour under Rule 37.10(a). [ 46 ] Finally, the motion judge dismissed these claims against the Attorney General of Canada on the basis they constituted collateral attacks against the decision to authorize the wiretap interceptions. IV. Grounds of Appeal [ 47 ] The supplementary Notice of Appeal raises five grounds. Mr.

Tingley alleges the motion judge erred in law: (1) by striking the allegations of negligent investigation against the Attorney General of Canada, the RCMP and Mr. Bertrand; (2) by striking the allegations of malicious prosecution against all respondents; (3) by striking the allegations of breaches of Charter rights against the Attorney General; and (4) by refusing leave to permit further amendments to the Amended Claim. [ 48 ] He then claims she erred in fact and law by finding that this Court, in the criminal appeal decision, did not find there had been an abuse of process. V.

Ground of Cross-Appeal [ 49 ] The Attorney General of Canada alleges the motion judge erred in refusing to entirely strike the claims of negligent investigation against the RCMP. VI. Standards of Review [ 50 ] Errors of law are determined on the standard of correctness: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235. [ 51 ] On a motion to strike pleadings, the standard is also correctness: Jones v. The Attorney General of Canada as representative of the Royal Canadian Mounted Police et al. , 2018 NBCA 86 , [2018] N.B.J. No. 328 (QL). This applies to Mr.

Tingley’s first three grounds and the Attorney General of Canada’s cross-appeal.

[ 52 ] Mr. Tingley’s fourth ground relates to an exercise of discretion, which is owed deference and is reviewable only if it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence or, if it is unreasonable, in the sense that nothing in the record can justify it: The Beaverbrook Canadian Foundation v. The Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R. (2d) 161 . [ 53 ] Mr. Tingley’s fifth ground relates simply to the substance of the findings of this Court in the criminal appeal decision.

His characterization of them does not change the actual findings. VII. Analysis [ 54 ] The appeal and cross-appeal address a broad range of issues. They can be categorized as follows: A. The law relating to each of the causes of action pleaded; B. The requirements of pleadings generally; C. The principles applicable to Rule 23 motions; D. The sufficiency of the Amended Claim; and E. The exercise of discretion relating to amending pleadings. [ 55 ] The Court is presented with an opportunity to review some of “the basics” and to provide a practical

summary on each of these topics. A. The law on the causes of action pleaded

(1) Negligent investigation [ 56 ] To succeed in a claim for negligent investigation, Mr. Tingley needed to establish three elements, namely that: (

a) the RCMP and Mr. Bertrand owed him a duty of care; (

b) the standard of care that underlies that duty was breached; and (

c) he suffered compensable injury or loss as a result of the negligent conduct: Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129 . (

a) Duty of care

[57] The Supreme Court in Hill addresses this issue by determining, first, if the relationship between the accusedand police discloses sufficient foreseeability and proximity to establish a prima facie duty of care, and, second, whether there are anypolicy considerations that might negate or perhaps limit that duty. This analysis is premised on the seminal decision of Anns v. MertonLondon Borough Council, [1978] A.C. 728 (H.L.), as affirmed by the Supreme Court in a number of decisions such as Cooper v. Hobart,2001 SCC 79, [2001] 3 S.C.R. 537, and Edwards v.

Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562. [58] Hill is particularly relevant to the case at bar because it deals with the relationship between the police and asuspect being investigated. It does not deal with any other type of relationship. [59] In Hill, the Supreme Court held foreseeability and proximity were sufficiently close to give rise to a legal dutyof care (para. 39), and there were no policy considerations that limited this duty (para. 47). (

b) Breach of standard of care [60] The standard of care is met if the officer performs his/her duties in the manner in which a reasonable officer insimilar circumstances would perform them. In other words, the conduct must be such as might reasonably be expected in the givencircumstances (Hill, para. 67). [61] Hill establishes that the existence of the duty of care does not alter the reasonable and probable groundsstandard required in an investigation. Otherwise, police officers would be inclined to become unduly defensive in carrying out theirinvestigations for fear of looming civil actions.

In Hill, McLachlin C.J., writing for the majority, observed: A number of considerations support the conclusion that the standard of care is that of a reasonable police officer in all the circumstances.First, the standard of a reasonable police officer in all the circumstances provides a flexible overarching standard that covers all aspectsof investigatory police work and appropriately reflects its realities. The particular conduct required is informed by the stage of theinvestigation and applicable legal considerations.

At the outset of an investigation, the police may have little more than hearsay,suspicion and a hunch. What is required is that they act as a reasonable investigating officer would in those circumstances. Later, inlaying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty;since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them. The reasonable officerstandard entails no conflict between criminal standards (Charron J., at para. 175).

Rather, it incorporates them, in the same way itincorporates an appropriate degree of judicial discretion, denies liability for minor errors or mistakes and rejects liability by hindsight. Inall these ways, it reflects the realities of police work.

Second, as mentioned, the general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances.In cases of professional negligence, this rule is qualified by an additional principle: where the defendant has special skills and experience,the defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling”. (See L. N. Klar,Tort Law (3rd ed. 2003), at p. 306.) These principles suggest the standard of the reasonable officer in like circumstances.

Third, the common law factors relevant to determining the standard of care confirm the reasonable officer standard. These factorsinclude: the likelihood of known or foreseeable harm, the gravity of harm, the burden or cost which would be incurred to prevent theinjury, external indicators of reasonable conduct (including professional standards) and statutory standards. (See Ryan v. Victoria (City), (SCC), [1999] 1 S.C.R. 201; R. v. Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R. 205, at p. 227.)These factors suggest a standard of reasonableness, not something less onerous.

There is a significant likelihood that police officers maycause harm to suspects if they investigate negligently. The gravity of the potential harm caused is serious. Suspects may be arrested orimprisoned, their livelihoods affected and their reputations irreparably damaged. The cost of preventing the injury, in comparison, is notundue. Police meet a standard of reasonableness by merely doing what a reasonable police officer would do in the same circumstances –by living up to accepted standards of professional conduct to the extent that it is reasonable to expect in given circumstances.

This seemsneither unduly onerous nor overly costly. It must be supposed that professional standards require police to act professionally andcarefully, not just to avoid gross negligence. The statutory standards imposed by the Police Services Act, R.S.O. 1990, c. P.15, althoughnot definitive of the standard of care, are instructive (s. 1). Fourth, the nature and importance of police work reinforce a standard of the reasonable officer in similar circumstances.

Police conducthas the capacity to seriously affect individuals by subjecting them to the full coercive power of the state and impacting on their reputeand standing in the community. It follows that police officers should perform their duties reasonably. It has thus been recognized thatpolice work demands that society (including the courts) impose and enforce high standards on police conduct (Cory Report, at p. 10).This supports a reasonableness standard, judged in the context of a similarly situated officer. A more lenient standard is inconsistent with

the standards that society and the law rightfully demand of police in the performance of their crucially important work. Finally, authority supports the standard of the reasonable police officer similarly placed. The preponderance of case law dealing withprofessionals has applied the standard of the reasonably competent professional in like circumstances. (See Klar, at p. 349; see also thereasons of the trial judge at para. 63.) The Quebec Court of Appeal has twice stated that the standard is the ordinarily competent officerin like circumstances (Jauvin v.

Procureur général du Québec, (QC CA), [2004] R.R.A. 37, at para. 59, andLacombe v. André, (QC CA), [2003] R.J.Q. 720, at para. 41). I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. Thisstandard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like otherprofessionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds ofreasonableness.

The standard of care is not breached because a police officer exercises his or her discretion in a manner other than thatdeemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fallwithin the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standardis not perfection, or even the optimum, judged from the vantage of hindsight.

It is that of a reasonable officer, judged in thecircumstances prevailing at the time the decision was made – circumstances that may include urgency and deficiencies of information.The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, itaccepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results,without breaching the standard of care.

The law distinguishes between unreasonable mistakes breaching the standard of care and mere“errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. (SeeLapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351; Folland v. Reardon (2005), (ON CA),74 O.R. (3d) 688 (C.A.); Klar, at p. 359.) [paras. 68-73] [62] In this case, any potential breach hinges on three key elements: (

i) were there reasonable and probable grounds to lay the charges? (ii) did the investigating officers meet the standard of care required of them beyond the laying of the charges? (iii) is this claim nothing more than an impermissible collateral attack against the court order authorizing the wiretap interceptions? (

i) Reasonable and probable grounds [63] The law relating to reasonable and probable grounds has been settled for a long time. There must be an honestbelief in the guilt of the accused even if that belief turns out to have been mistaken. The belief need only be based on a “[…] fullconviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, wouldreasonably lead any ordinarily prudent and cautious [person], placed in the position of the accuser, to the conclusion that the personcharged was probably guilty of the crime imputed”: Hicks v.

Faulkner (1878), 8 Q.B.D. 167, at p. 171. [64] The test therefore contains subjective and objective elements. In this case, there needed to be an actual belief inMr. Tingley’s guilt, and that belief had to be reasonable in the circumstances of the case. The Supreme Court in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J.

No. 12 (QL), stated the inquiry asks whether “a reasonable person, standing in theshoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest” (para. 16). [65] A bare allegation of lack of reasonable and probable grounds will not suffice. Mr. Tingley had full disclosureand was aware of the prosecutorial case he had to meet. He therefore needed to plead which of the facts either disclosed to him ormissing from disclosure did not constitute reasonable and probable grounds to conduct the investigation. [66] Mr.

Tingley was required to plead material facts from which a legal determination could be made as to whetherreasonable and probable grounds existed. The pleaded facts must show either the RCMP had no subjective belief in Mr. Tingley’s guilt,or there was nothing on which to base a reasonable belief. Otherwise, in the circumstances of this case, the grounds are deemed to havebeen present. As will be seen, no such facts were pleaded.

(ii) Was the standard of care breached? [67] An officer’s conduct, in determining whether it meets the standard of care, will stand to be determined, in mostcases, by the decisions made during the investigation, the manner in which discretion was exercised, and whether either falls within therange of reasonableness. A plaintiff who alleges a cause of action based on negligent investigation will therefore need to plead materialfacts in relation to each of these elements.

Again, as will be seen, no such facts were pleaded. (iii) Collateral attack [68] The doctrine of collateral attack prevents a party from calling into question the legal effect of a judicial order inproceedings whose object is not to attack the legal effect of that order. However, it does not prevent a party from calling into question thefactual conclusions on which a judge acted in giving the order. [69] The Supreme Court’s short discussion of the doctrine of collateral attack in Toronto (City) v. C.U.P.E.

Local79, 2003 SCC 63, [2003] 3 S.C.R. 77, provides a concise explanation of its functioning: The rule against collateral attack bars actions to overturn convictions when those actions take place in the wrong forum. As stated inWilson v. The Queen, (SCC), [1983] 2 S.C.R. 594, at p. 599, the rule against collateral attack has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusiveunless it is set aside on appeal or lawfully quashed.

It is also well settled in the authorities that such an order may not be attackedcollaterally — and a collateral attack may be described as an attack made in proceedings other than those whose specific object is thereversal, variation, or nullification of the order or judgment. Thus, in Wilson, supra, the Court held that an inferior court judge was without jurisdiction to pass on the validity of a wiretap authorizedby a superior court. Other cases that form the basis for this rule similarly involve attempts to overturn decisions in other fora, and notsimply to relitigate their facts. In R. v.

Sarson, (SCC), [1996] 2 S.C.R. 223, at para. 35, this Court held that a prisoner’shabeas corpus attack on a conviction under a law later declared unconstitutional must fail under the rule against collateral attack becausethe prisoner was no longer “in the system” and because he was “in custody pursuant to the judgment of a court of competentjurisdiction”. Similarly, in R. v.

Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 S.C.R. 706, this Court held that amine owner who had chosen to ignore an administrative appeals process for a pollution fine was barred from contesting the validity ofthat fine in court because the legislation directed appeals to an appellate administrative body, not to the courts.

Binnie J. described therule against collateral attack in Danyluk, supra, at para. 20, as follows: “that a judicial order pronounced by a court of competentjurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose ofattacking it”. [para. 33] [Emphasis in original.] [70] In short, the legal effect of an order of a superior court judge can be called into question only: 1) on appealfrom the order, 2) by applying to the court to vary the order, or 3) by bringing a new action for the very purpose of setting aside the orderas fraudulent.

Its legal effect cannot otherwise be attacked. However, there is no such bar on calling into question the factual conclusionson which an order is based. Again, Mr. Tingley’s Amended Claim does not pass muster. (

c) Compensable injury or loss [71] Mr. Tingley has pleaded certain material facts with respect to this component. However, as will be seen, nofacts are pleaded in support of alleged breaches of the RCMP’s duty of care that are sufficient to support the overall cause of action.Injury or loss that is not the product of negligence is not recoverable. Mr. Tingley argued the time he spent incarcerated resulted in loss.As will be seen, Mr. Tingley’s period of incarceration, while on remand, ended as soon as he chose to apply for bail and was granted it.

(2) Malicious prosecution

(

a) Against Crown counsel [ 72 ] Crown counsel argues PACA provides them with immunity from suit with respect to the claim for malicious prosecution regardless of whether or not it is properly pleaded. [ 73 ] The relevant provisions of PACA are:

Liability 4

(1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject, (

a) in respect of a tort to real or personal property, or causing bodily injury, committed by an officer or agent; (

b) in respect of a breach of a duty that a person owes to his servant or agent by reason of being his employer; (

c) in respect of a breach of a duty attaching to ownership, occupation, possession or control of property; (

d) under any enactment, or under any regulation made under authority of any enactment. 4

(6) No proceedings lie against the Crown under this Act in respect of anything done or omitted to be done by any person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process. 4

(8) Notwithstanding any provision of this or any other Act, no proceedings lie directly against an officer or agent of the Crown, in the name of the officer or agent or in the name of his or her office, in respect of anything done or omitted to be done by the officer or agent in the course of the performance or purported performance of his or her duties. 21 No proceedings may be brought against the Crown except as provided by this Act. Responsabilité 4

(1) Sous réserve des dispositions particulières de la présente loi, la Couronne encourt la même responsabilité délictuelle qu’elle devrait assumer, si elle était une personne majeure et capable,

a) à raison d’un délit civil portant atteinte à des biens réels ou personnels ou causant des dommages corporels et commis par un fonctionnaire ou un représentant;

b) à raison d’un manquement à une obligation dont une personne est tenue envers son préposé ou représentant du fait qu’elle est son employeur;

c) à raison d’un manquement à une obligation afférente à la propriété, l’occupation, la possession ou la garde d’un bien;

d) en vertu d’un texte législatif ou d’un règlement d’application d’un texte législatif. 4

(6) Il ne peut être engagé de procédures contre la Couronne aux termes de la présente loi à raison d’un acte ou d’une omission d’une personne dans l’accomplissement réel ou présumé de fonctions de nature judiciaire dont cette personne est investie ou de fonctions qu’elle exerce à l’occasion de l’exécution d’actes de procédure judiciaire. 4

(8) Nonobstant toute disposition de la présente loi ou de toute autre loi, il ne peut être engagé directement de procédures contre un fonctionnaire ou un représentant de la Couronne, en son nom ou au nom de son bureau, relativement à tout acte ou toute omission qu’il a fait dans l’exercice réel ou présumé de ses fonctions. 21 Il ne peut être engagé de procédures contre la Couronne que dans les cas prévus par la présente loi.

[74] A plain reading of s. 4(1) indicates the Crown can be liable in tort only if the tort alleged against it is capturedby one of the four categories enumerated therein. [75] Section 4(6) limits the Crown’s exposure to the liabilities set out in s. 4(1) if the claim against it relates toanything done or omitted to be done by anyone discharging or purporting to discharge responsibilities of a judicial nature vested in thatperson.

These individuals include Crown counsel. [76] Section 4(8) appears to expand the immunity from suit in favour of Crown officers or agents but, for thepurposes of this appeal, the outer limits of s. 4(8) need not be determined. [77] The tort of malicious prosecution is not one of the torts listed in s. 4(1). The Crown can therefore not be heldliable for any claim based on that tort. The question then becomes whether Crown agents, such as prosecutors, can claim the sameimmunity. This raises a public policy consideration, which was fully canvassed by the Supreme Court in Nelles v.

Ontario, (SCC), [1989], 2 S.C.R. 170, [1989] S.C.J. No. 86 (QL). [78] In Nelles, the Supreme Court held that, although the Crown is immune from suit for malicious prosecution, theAttorney General and Crown agents including prosecutors do not benefit from absolute immunity as a matter of public policy, on thebasis there can be no justification for such a blanket immunity. The Supreme Court specified, however, that it is only in situations whereprosecutors act maliciously, in fraud of their duties, that affected individuals can seek relief in a civil suit.

This involves conduct thatwould completely remove a matter from PACA immunity. Generally speaking, they need to have engaged in conduct beyond the type setout in s. 4(8), for which immunity applies. [79] Nelles sets out the four factual elements of a suit for malicious criminal prosecution: 1. The criminal proceedings were initiated by the defendants; 2. They were terminated in favour of the plaintiff; 3. There was an absence of reasonable and probable cause to initiate the proceedings; and 4. The defendants were motivated by malice or a primary purpose other than carrying the law into effect. See J. G.

Fleming, The Law of Torts, 5th ed. (Sydney: Law Book Company 1977), at p. 558. See also Miazga v. Kvello Estate, 2009 SCC51, [2009] 3 S.C.R. 339; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9. [80] The first two elements will rarely be an issue, as they typically will be easily established. The third and fourthelements will be the contentious ones, as in Mr. Tingley’s case. As was noted by this Court in New Brunswick Real Estate Association v.Estabrooks, 2014 NBCA 48, 422 N.B.R. (2d) 121: It is the last two requirements that have posed the greatest difficulties.

The third element requires the defendant to prove a negative, theabsence of reasonable and probable grounds for initiating the proceedings. The fourth, proof of malice or an improper purpose, is in myview the most difficult requirement, and I will focus on it in my analysis of the application of the test to the case at bar. As defined byLamer J., the plaintiff must establish that the Attorney General or Crown Attorney “perpetrated a fraud on the process of criminal justiceand in doing so ... perverted or abused his office and the process of criminal justice” (para. 45).

In Proulx, Iacobucci and Binnie JJ.,speaking for the majority, noted that a suit for malicious prosecution must be based on “more than recklessness or gross negligence ...[I]t requires evidence that reveals a willful and intentional effort on the Crown’s part to abuse or distort its proper role within thecriminal justice system” (para. 35). In Miazga, the Supreme Court’s latest pronouncement on malicious prosecution, the Court noted thatthe tort will provide a remedy when a Crown prosecutor’s actions are “so egregious that they take the prosecutor outside his or herproper role as minister of justice” (para. 51).

Put this way, it is easy to understand why public policy does not require immunity for suchconduct and to see that it is unlikely that claims for malicious prosecution will be successful.

[para. 23] [81] I have already dealt with the law relating to the third element of reasonable and probable grounds (see paras.62-65 above). See also s. 44(2) of the Judicature Act, R.S.N.B. 1973, c J-2. [82] On the fourth element, Larlee J.A., in Estabrooks, wrote: I turn now to the fourth and most crucial element of the test: malice. This element requires that the plaintiff demonstrate that there wasmalice, or a primary purpose other than that of carrying the law into effect. The burden of proving malice lies on the person alleging it:in this case, Mr. Estabrooks.

He had to establish that the NBREA acted for an improper purpose. To iterate what Lamer J. stated inNelles: The required element of malice is for all intents, the equivalent of “improper purpose”. It has according to Fleming, a “wider meaningthan 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, theplaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the formof a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of “ministerof justice”.

In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated afraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. In fact, insome cases this would seem to amount to criminal conduct [...] [para. 45].

In Griffin, Jenkins C.J.P.E.I. (in dissent) explains further: In Proulx, L’Heureux-Dubé J. stated (in her dissent at para. 217) that the standard of deliberate and malicious use of one's office is a highand clear one that calls for proof of subjective intent to act out of malice or with an improper purpose by perverting the power of theoffice, and that courts must avoid any

interpretation that leaves any room for uncertainty in application of the standard. Although hercomments appear within a dissenting judgment, on reading the majority judgment it can be inferred that all the majority reasons alsosubscribe to that general direction. [para. 141] […] […] In an action for malicious prosecution, the malice which must be proved is not malice in law but malice in fact. It is a longestablished principle that neither gross negligence nor recklessness per se constitutes malice A suit for malicious prosecution must be based on more than recklessness or gross negligence.

Rather, it requires evidence that reveals awillful and intentional effort on the Crown’s [part] to abuse or distort its proper role within the criminal justice system. [Proulx, at paras.34-35; Dix at para. 495] The hasty formation of a belief in the guilt of a plaintiff based on unreasonably insufficient grounds does not ordinarily suffice to warrantan inference of malice (Fleming, at p. 686). [para. 138] [paras. 62-63 and 70] [83] In Nelles, Lamer J., as he then was, stated the malice or improper purpose involves an abuse or perversion ofthe criminal justice system for ends it was not designed to serve and is, therefore, an abuse of process.

He noted the inherent difficulty inproving this tort, coupled with civil justice mechanisms to weed out meritless claims, will be sufficient to ensure prosecutors will not behindered in the execution of their duties or be faced with a floodgate of claims. That prediction has withstood the test of time, asCanadian jurisprudence will attest, albeit in many cases where legislation similar to s. 4(8) of PACA did not provide defences. [84] In his majority reasons, Lamer J. comments on this Court’s decision in Levesque v. Picard and Minister ofJustice (1986), (NB CA), 66 N.B.R. (2d) 87, [1985] N.B.J.

No. 104 (QL) (C.A.). In Levesque, the plaintiff had been

charged with theft from the company that employed him. The company’s president was a brother of the defendant prosecutor who wasalleged to have initiated the police investigation which led to the unsuccessful prosecution of the theft charge. Mr. Levesque commenceda civil action against the prosecutor and the Attorney General. He alleged the prosecutor had conducted himself with an improper motiveand thereby abused his office.

The Attorney General and prosecutor applied to have the action struck on the basis of PACA immunityfrom suit. [85] In assessing the potential exposure, Creaghan J., the application judge, referred to Long v. Province of NewBrunswick, [1959] N.B.J. No. 5 (QL) (S.C.A.D.), where this Court held malicious prosecution did not fall within one of the tortsenumerated in s. 4(1)(

a) and, as a result, there could be no liability against the Crown for that tort.

Long did not address the liability ofCrown agents, as none was sued. [86] Creaghan J. therefore dismissed the action against the Province of New Brunswick (the Crown as representedby the Minister of Justice) but left open for trial the action against the prosecutor, which he believed was too complex to determine in asummary fashion, whether a cause of action for malicious prosecution could be established against him as falling outside the parametersof PACA immunity. [87] On appeal to this Court, Ryan J.A. allowed the appeal and held the prosecutor had absolute immunity relyingheavily on the decision of the Court of Appeal for Ontario in Nelles.

Ryan J.A. noted, however, that the Statement of Claim in Levesquealleged Mr. Picard, at all material times, acted as a Crown prosecutor and that it was not open to the Court to find he was not actingwithin the scope of his authority, notwithstanding his additional finding that the real “sting” of Mr. Levesque’s Statement of Claim wasthe allegation that Mr. Picard was acting as an “improperly motivated” prosecutor.

However, after a review of several authorities,culminating in the Court of Appeal for Ontario’s decision in Nelles, Ryan J.A. found the prosecutor was “not subject to civil suit in thecircumstances of this present case” (para. 14) (emphasis added). [88] As noted, the Supreme Court later reversed Nelles by eliminating the absolute immunity from suit for Crownagents, including prosecutors. In his analysis, Lamer J. also comments on earlier Ontario decisions. One such case was Owsley v.Ontario, [1983] O.J.

No. 2128 (QL), which stood for the proposition that acts of Crown counsel that are of a judicial nature within thecriminal prosecution process are immune from civil suit pursuant to the Ontario equivalent of s. 4(6) of PACA. In Richman v. McMurtryet al., [1983] O.J. No. 3015 (QL), Galligan J. held the Attorney General and his agents were totally immune from civil liability formalicious prosecution. He was of the view there could be no risk that even a slight possibility of a suit could deter a prosecutor frommaking a decision he believed to be in the public interest.

DuPont J., in Owsley, was not prepared to go that far. He opined that aprosecutor’s acts, when accompanied by fraud or malice, are non-judicial in nature and subject to civil liability. He defined malice as“malice in fact” where a prosecutor is activated by an improper motive towards an individual. [89] The Supreme Court expressed a similar opinion in R. v. Eldorado Nuclear Limited, (SCC),[1983] 2 S.C.R. 551, [1983] S.C.J. No. 87 (QL), where it held

an act taken outside a Crown agent’s duty is a personal act for whichimmunity is not available. [90] In Nelles, Lamer J. followed the Owsley and Eldorado approach and wrote that absolute immunity for Crownagents is against public policy interests because it has the effect of negating a private right of action for an individual who was wronglyand maliciously prosecuted. [91] I hasten to add, as Lamer J. noted, that a suit in malicious prosecution does not arise from an error in judgmentin the exercise of discretion, nor even from professional negligence.

It is a tort that requires a factual foundation of improper purpose ormotive amounting to an abuse or aversion of the criminal justice system in order to achieve an objective it is not designed to serve. Itimplies an abuse of office. [92] In Brooks v. Fredericton City Police Force et al, 2017 NBQB 83, [2017] N.B.J. No. 118 (QL), Morrison J.held that, to have a basis for suit against a prosecutor, the plaintiff needs to plead material facts establishing the prosecutor was actingoutside the scope of his or her official duties.

Allegations that are limited to acts performed in the course of duty are statute-barred.Indeed, Miazga reconciles Nelles with PACA immunity. As Charron J. noted in Miazga: […] Under the strict standard established in Nelles, malicious prosecution will only be made out where there is proof that theprosecutor’s conduct was fuelled by “an improper purpose or motive, a motive that involves an abuse or perversion of the system ofcriminal justice for ends it was not designed to serve” (Nelles, at p. 199).

In other words, it is only when a Crown prosecutor steps out ofhis or her role as “minister of justice” that immunity is no longer justified. [para. 7]

[Emphasis in original.] [ 93 ] Lamer J. concludes his reasons in Nelles by setting out the policy considerations that guided him in ruling against absolute immunity for Crown agents in malicious prosecution cases.

He wrote: […] The existence of an absolute immunity strikes at the very principle of equality under the law and is especially alarming when the wrong has been committed by a person who should be held to the highest standards of conduct in exercising a public trust. […] [para. 49 cited to QL] [ 94 ] As for the victim’s perspective: […] The fundamental flaw with an absolute immunity for prosecutors is that the wrongdoer cannot be held accountable by the victim through the legal process.

As I have stated earlier, the plaintiff in a malicious prosecution suit bears a formidable burden of proof and in those cases where a case can be made out, the plaintiff’s Charter rights may have been infringed as well. Granting an absolute immunity to prosecutors is akin to granting a license to subvert individual rights. […] [para. 50 cited to QL] [ 95 ] Section 4(8) of PACA was proclaimed after the release of the Supreme Court’s decision in Nelles . Although, in accordance with s. 17 of the

Interpretation Act , the enactment of s. 4(8) is deemed to be “remedial” and is to be given “such fair, large and liberal construction and

interpretation” to best attain the object of PACA , we do not need to determine whether s. 4(8) was intended to nullify Nelles and provide absolute immunity to Crown agents because, as will be seen, Mr. Tingley’s Amended Claim does not plead material facts in support of his claim for malicious prosecution in any event. In Nelles , the motion to strike failed because immunity could not be justified. It is not possible to determine if any PACA immunity has arguably been removed in Mr. Tingley’s case as the factual basis for analysis is not present. [ 96 ] One final point should be made under this heading.

The motion judge below cited this Court’s decision in Lévesque and BMG Farming Ltd. v. Province of New Brunswick and New Brunswick Crop Insurance Commission , 2011 NBCA 48 , 372 N.B.R. (2d) 202 , as authority for confirmation that Long had been properly decided. That continues to be the case. The Crown is immune from civil actions in tort except those enumerated in PACA . In Lévesque , the tort was negligent misrepresentation, which is not enumerated in PACA and is one for which the Crown continues to enjoy immunity. (

b) Against the Attorney General of Canada and the RCMP [ 97 ] As will be seen, the only allegations in the Amended Claim that arguably raise malicious prosecution against the RCMP are contained in paragraphs 26 and 28. However, these allegations are limited to pleading a legal conclusion without any facts in support. There is, therefore, no basis for this claim against the RCMP, and the analysis need not go any further.

(3) Charter breaches [ 98 ] Mr. Tingley concedes these claims can be advanced only against the Attorney General: Vancouver (City) v. Ward , 2010 SCC 27 , [2010] 2 S.C.R. 28 . He alleges breaches of ss. 7 , 8 and 11 (b), (

d) and (e). [ 99 ] The principle regarding pleadings for Charter claims is identical to the principle regarding claims generally. The plaintiff must plead facts that amount to a cause of action in law: Henry v. British Columbia (Attorney General), 2015 SCC 24 , [2015] 2 S.C.R. 214 , at para. 43 . [ 100 ] In Vancouver (City) , the Supreme Court set out a four-part analysis for damages for Charter breaches to be awarded under s. 24(1) . The elements of the analysis are: 1. A breach of the Charter ; 2. Damages would fulfil a purpose of Charter damages, including compensation, vindication, or deterrence;

3. Countervailing factors do not show an award would not be appropriate and just; and 4. Quantum. [101] As will be seen, Mr. Tingley’s claims all fail at the first stage. He has not pleaded facts that amount to a breachof his Charter rights. Therefore, there is no need to proceed further with the inquiry. B. Requirements of pleadings [102] Clear and properly drawn pleadings are the cornerstone of litigation. They define the issues for the parties andthe judge. Cases cannot be decided outside the parameters of the pleadings: Parlee v. McFarlane (1999), (NB CA),210 N.B.R. (2d) 284, [1999] N.B.J.

No. 88 (QL) (C.A.), per Drapeau J.A. [103] As Abrams and McGuinness note in Canadian Civil Procedure Law, 2nd ed. (Toronto: LexisNexis, 2010): “[…]there can be little doubt that the pre-trial disclosure of the factual basis of a claim is of paramount importance to the trial process” (p.737). [104] The Statement of Claim must precisely disclose to a defendant, on its face, what case is to be answered. Therecan be no room for speculation as to the particulars or material facts that constitute the basis of the claim.

If a Statement of Claim doesnot permit a sufficient understanding of the claim to permit a response to it, it could be struck. A defendant is required to respond toallegations of fact to identify which are accepted and which are disputed. That is not possible if material facts are not properly pleaded(ADI Ltd. v. 052987 N.B. Inc. et al., 2000 NBCA 55, 232 N.B.R. (2d) 47; Enbridge Gas v. Modern Construction, 2003 NBCA 78, 264N.B.R. (2d) 145). [105] Like all modern Canadian rules of pleadings, Rule 27.06(1) adopts the “material facts” approach.

Each partymust set out a concise statement of the material facts relied upon for the claim or defence, but not the evidence by which they will beproved. If that minimum threshold is not met, the opposing party is entitled to move to have the pleading struck. That is what occurred inthis case. [106] The pleadings stage of the underlying action ended with the filing of the Amended Claim because it lackedmaterial facts. The Amended Claim alleged serious acts of wrongdoing against all respondents. This is another reason why Mr. Tingleywas required to provide detailed facts in support of these allegations.

Alleging causes of action, while permitted by the Rules, is notsufficient by itself. The material facts to support each of them must be clearly spelled out. [107] The distinction between facts and evidence, on occasion, can be difficult to delineate. Materiality of facts willvary from case to case. However, a good rule to follow in any case is to first establish what facts need to be proved to establish aparticular cause of action or to obtain a particular remedy. Those are material facts. If no such fact is pleaded, in most cases, the pleadingstands to be struck. See Abrams et al., p. 743; Bruce v.

Odhams Press, Limited, [1936] 1 K.B. 697 at 712, per Scott L.J. [108] I pause here to draw a distinction between pleading material facts and pleading particulars. As I discuss morefully below, while Rule 27.06(1) requires pleading “material facts,” Rule 27.06(9) requires pleading “full particulars” if the pleadingcontains allegations of the kind referenced in Rule 27.06(9).

Bruce provides a good explanation of the difference between “materialfacts” and “full particulars.” Material facts are those required to prove a cause of action, whereas particulars consist of additional andmore detailed information, not evidence, to assist the opposing party in knowing the case to meet. The seriousness of an allegation of thekind set out in Rule 27.06(9) is what makes the pleading of full particulars mandatory. The intent is to discourage making suchallegations when no particulars can be provided. [109] Abiding by the rules of pleadings is not optional.

A judge commits an error of law if a decision rests on facts notpleaded and proved: Estate of Michael Burke and 1021256 Ontario Inc. v. Royal & Sun Alliance Insurance Company of Canada, 2011NBCA 98, 381 N.B.R. (2d) 81.

C. Rule 23 motions

(1) Rule 23.01(1)(a) [110] Rule 23.01(1) deals with three types of determinations of pre-trial questions, only two of which are relevant tothis appeal: 1. The determination of a question of law raised by a pleading if that determination might dispose of the action, shorten the trial orresult in a substantial saving of costs: Rule 23.01(1)(a); and 2. The striking of a pleading which does not disclose a reasonable cause of action: Rule 23.01(1)(b). [111] As noted, Crown counsel invoked Rule 23.01(1)(

a) to ask the motion judge to determine if PACA provided themwith immunity from suit for malicious prosecution. All respondents invoked Rule 23.01(1)(

b) to argue the Amended Claim did notdisclose a single reasonable cause of action. Although the respondents invoked other rules in support of their position (see para. 10above), there is no need to analyze their application, as I agree the motion judge properly disposed of Mr. Tingley’s Amended Claimunder Rule 23. I address below the Rule 23 motions in relation to the first three grounds of appeal and cross-appeal. [112] Before I do so, I must comment on Mr. Tingley’s objection to the ability of Crown counsel to even argue PACAas the basis for the Rule 23.01(1)(

a) motion because they had not pleaded it given their Statement of Defence has not yet been filed. Theanswer to the objection, quite simply, is that Rule 23.01(1)(

a) permits the court to determine a preliminary question of law, at any time,provided a pleading brings it into play. The determination of a question of law raised by a pleading need not be the pleading of themoving party: Shanks v. Shay et al., 2020 NBCA 62, [2020] N.B.J. No. 224 (QL). There is no requirement that a question of law bespecifically raised in a pleading.

The allegations in the Amended Claim against Crown counsel clearly bring PACA into play; and themotion judge could deal with the question of law thus raised even though it was not specifically raised by the Amended Claim or had notyet been pleaded in a Statement of Defence: Bill Edgett v. Province of NB, 2019 NBQB 45, [2019] N.B.J. No. 125 (QL), per Grant J.Moreover, Mr. Tingley did not appeal the motion judge’s ruling relating to the sufficiency of Crown counsel’s grounds, as they were setout in the Notice of Motion under Rule 23.

(2) Rule 23.01(1)(b) [113] This Court has espoused the law’s reluctance to strike pleadings unless, on the pleaded facts, a pleading canobviously not be sustained, even with a generous reading and with accommodation for drafting deficiencies through amendments. Inconsidering a motion to strike, the judge’s function is not to “try the issues” but rather to decide “if there are issues to be tried”: Abramset al., at p. 767. The question to be answered is always: do the facts as pleaded disclose a reasonable cause of action, i.e. one that hassome chance of success?

The question cannot be answered in the affirmative if it is plain and obvious the action cannot succeed:Operation Dismantle v. The Queen, (SCC), [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22 (QL). In my view, it is throughthis lens the motion judge correctly viewed the Amended Claim when she repeatedly ruled on the portions of it that had no chance ofsuccess. No assessment of potential evidence to prove pleaded facts is made at this stage, nor was any made by the motion judge. [114] The leading decision from this Court on this issue continues to be Sewell v.

ING Insurance Company of Canada,2007 NBCA 42, 314 N.B.R. (2d) 330. Generally, a pleading may be struck under Rule 23.01(1)(

b) only if it does not disclose areasonable cause of action or defence. The test for striking out a claim has been stated on several occasions by the Supreme Court, mostnotably in Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 (QL), and, more recently, in R.v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45. A claim will be struck only if it is plain and obvious, assuming thefacts pleaded to be true, that the pleading discloses no reasonable cause of action, which the Supreme Court has restated to mean a claimthat has no reasonable prospect of success.

If there is such a prospect, the claim should be allowed to proceed. As McLachlin C.J.,writing for a unanimous Court in Imperial Tobacco, stated: “The approach must be generous and err on the side of permitting a novel butarguable claim to proceed to trial” (para. 21). I quote this passage only to highlight that, in Mr. Tingley’s Amended Claim, there are nonovel causes of action pleaded. Negligent investigation, malicious prosecution and Charter-based claims have been part of our law for along time. As a result, any “generosity” to be shown to Mr. Tingley needs to be based on some other consideration.

On that point,Drapeau C.J.N.B., as he then was, wrote in Sewell that, in considering a motion to strike, the judge is required to accommodate draftingdeficiencies with a “generous” reading of the disputed pleading and, if that fails to breathe life into it, all suitable amendments should beallowed. However, even “generous readings” and “suitable amendments” have their limits.

[ 115 ] As both Sewell and Imperial Tobacco have noted, the analysis of a motion to strike begins with the premise that all facts pleaded are true unless they manifestly cannot be proved. But facts must be pleaded . As McLachlin C.J. wrote in Imperial Tobacco : […] It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them.

But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. [para. 22] [Emphasis added.] [ 116 ] It is insufficient to plead assumptions, speculation, legal conclusions or causes of action without facts in support.

Wilson J., in Hunt , formulated the test as follows: […] assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? […] Only if the action is certain to fail because it contains a radical defect […] should the relevant portions of a plaintiff’s statement of claim be struck out […]. [para. 33 cited to QL] [Emphasis added] [ 117 ] This passage was quoted with approval by this Court in Enbridge Gas (para. 20 ). D.

The sufficiency of the Amended Claim [ 118 ] I set out the relevant paragraphs from the Amended Claim which deal with each of the three causes of action. The underscoring identifies the amendments to Mr. Tingley’s original Statement of Claim.

(1) Negligent investigation 27. Further, the Plaintiff says that the Defendants police officers Mark Janes, Jean (Chico) Belliveau and Deborah Craig, and Crown prosecutors Kathryn Gregory, Nicole Poirier, Michel Bertrand and Gabriel Bourgeois, commenced and continued the investigation and prosecution of the Plaintiff in the absence of reasonable and probable grounds. […] 32. The Plaintiff says that the Defendants police officers, Jean (Chico) Belliveau, Mark Janes and Deborah Craig, and wiretap agent and Crown prosecutor Michel Bertrand, negligentl

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