2014 QCCA 307, 2014 QCCA 307

Singh c. Montreal (City of) 2014 QCCA 307 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023626-138 (500-17-044982-083) DATE: February 19, 2014 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. JULIE DUTIL, J.A. JACQUES A. LÉGER, J.A. JAGGI SINGH APPELLANT - Plaintiff v.

CITY OF MONTREAL FRÉDÉRIC MERCIER GEORGES LAMIRANDE PAUL ROUILLARD RESPONDENTS - Defendants JUDGMENT [ 1 ] This is an appeal from an interlocutory judgment of the Superior Court, Registry of Montreal (the Honourable Micheline Perrault), rendered on May 10, 2013, which granted the respondents’ objection to the admissibility of evidence; [ 2 ] For the reasons of Justice Morissette, with which Justices Dutil and Léger concur; [ 3 ] THE COURT : [ 4 ] ALLOWS the appeal with costs; [ 5 ] SETS ASIDE the judgment of the Superior Court rendered on May 10, 2013; [ 6 ] DISMISSES the respondents’ objection to the evidence.

YVES-MARIE MORISSETTE, J.A. JULIE DUTIL, J.A. JACQUES A. LÉGER, J.A. Mtre Geeta Narang NARANG & ASSOCIÉS For the Appellant Mtre Pierre-Yves Boisvert DAGENAIS GAGNIER BIRON For the Respondents Date of hearing: January 31 st , 2014

REASONS OF MORISSETTE, J.A. [ 7 ] This appeal concerns an interlocutory judgment of the Superior Court, District of Montreal (the Honourable Micheline Perrault), which, during the trial of the appellant’s action “for malicious prosecution, illegal arrest and detention”, maintained the respondents’ objection to certain evidence the appellant had attempted to adduce. * * * * * [ 8 ] On March 8 th , 2007, a Thursday, the appellant participated in a demonstration led by an organization known as the Committee of Women of Diverse Origins.

At the time, the appellant had been granted interim release in connection with other proceedings pending in the Montreal Municipal Court. The conditions under which he had been released provided that he undertook “[de] ne pas se trouver sur les lieux d’une manifestation qui n’est pas paisible et quitter immédiatement les lieux de toute manifestation qui n’est pas paisible”. [ 9 ] In their assessment of the surrounding circumstances, the police took the view that this demonstration was not peaceful.

Accordingly, they arrested the appellant on a charge of violating conditions of release, and they also charged him with obstructing or resisting a police officer in the execution of his duties. Both these charges were laid under the Criminal Code . The appellant was then detained for a few days pending the outcome of his release hearing. On March 9 th , a prosecutor, Mtre Cloutier, objected to his release. On March 12 th , at the continuation of the hearing, a second prosecutor, Mtre Léonard, again opposed his release.

The appellant was set free on March 13 th . [ 10 ] The trial on the charges of violating release conditions and obstructing or resisting a police officer in the execution of his duties was due to start on February 28 th , 2008.

On the morning of the trial, the appellant appeared with his counsel, Mtre Jared Will, who was approached by the Crown prosecutor, Mtre Rouillard, ostensibly for the purpose discussing possibilities of a plea agreement. [ 11 ] The following paragraphs quoted from the appellant’s re-re-amended motion to institute proceed​ings describe the facts that are alleged to have occurred at that point: 70.

The same day, at the Montréal Municipal Court, the Defendant Me Rouillard made the following proposal to the Plaintiff’s criminal attorney, Me Jared Will: that the Plaintiff plead guilty to a non-criminal penal offence and pay a fine, in return for which criminal charges would be withdrawn; 71. The Plaintiff refused this offer; 72. When Me Will announced that the offer had been rejected, the Defendant Rouillard said: “ O.K. tu as callé mon bluff ” to Me Will; 73.

The Defendant Rouillard proposed that the plaintiff undertake not to sue the police officer Mercier, attorneys for the City of Montréal and the City of Montréal, in exchange for which criminal charges would be withdrawn; 74. The Plaintiff was prepared to accept this proposal, provided he received a letter of apology in which it is acknowledged that there was no reason to charge him; 75. (…) 76. The Defendant Rouillard then went to his office(…); 77a. Upon his return, the Defendant Rouillard told Me Will that “ je voulais juste protéger mon policier ” 77b.

Afterwards, the Defendant Rouillard withdrew all charges, as appears from the Minutes of Proceedings, Exhibit P-6; 78. Had the attorneys acting for the City of Montréal not known the Plaintiff and treated him like they do other accused individuals, they would not have (…) insisted that he be detained while waiting ( sic ) his bail hearing and they would have withdrawn all charges against him; [ 12 ] On August 25 th , 2008, the appellant commenced civil proceedings in damages against the respondents.

Although Mtres Cloutier and Léonard were among the original defendants, the appellant filed a partial discontinuance of action against them. The respondents Mercier and Lamirande are police officers. Counsel for the City of Montreal contends that the action against them is prescribed, a point which is vigorously disputed by the appellant’s counsel. [ 13 ] The trial of the action for malicious prosecution and illegal arrest and detention extended over a period of six days, between May 6 th and 14 th , 2013.

On May 7 th , over an objection by counsel for the respondents, the appellant’s counsel attempted to call Mtre Jared Will as a witness in support of the allegations quoted above in paragraph [11]. The trial judge took the objection under advisement and she upheld it on May 10 th when she delivered her reasons. The final paragraph of the judgment reads as follows: [16] MAINTIENT l’objection de la

partie défenderesse au témoignage de Me Jared Will portant sur les discussions de règlement avec Me Paul Rouillard dans le cadre du dossier criminel, y compris les commentaires de Me Rouillard quant aux motifs pour lesquels il tentait de régler les accusations criminelles portées contre M. Jaggi Singh.

* * * * * [14] The judgment below first quotes a case decided by the Supreme Court of the Northwest Territories,[1] and then some doctrinalsources, in support of the non-controversial proposition that plea bargaining and settlement negotiations are confidential, but that thisprivilege is subject to a limited number of exceptions. The trial judge then relies on R. v. Delchev,[2] decided by the Ontario SuperiorCourt of Justice, and where Madam Justice Low made the following comments, on the strength inter alia of R. v. Nixon:[3] [35] Plea bargaining is an activity central to the effective administration of justice.

It is probably fair to say that without resolutionsshort of trial, our system of criminal justice would collapse under its own weight. The crafting and making of offers of resolution, thenegotiation of plea bargains and the concluding of plea bargains are within the core prosecutorial powers of the Crown and are generallyimmune from review. [36] There must be an evidentiary basis of prosecutorial impropriety, consisting of evidence extrinsic to the settlementcommunications themselves, before the court should embark on an inquiry regarding the prosecutorial discretion to make the offer or theoffer itself.

See R. v. Power, (SCC), [1994] S.C.J. No. 29 at 12 and R. v. Nixon, 2011 SCC 34 , [2011] S.C.J.No. 34 where, at para 62, Justice Charron writing for the court, wrote Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges thatan act of prosecutorial discretion constitute an abuse of process. Given that such decisions are generally beyond the reach of the court, itis not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process.

For example, it would not suffice foran applicant to allege abuse of process based on the fact that the Crown decided to pursue the charges against him but withdrew similarcharges against a co-accused. Without more, there would be no basis for the court to look behind the exercise of prosecutorial discretion. [37] In my view, there is no extrinsic evidence of prosecutorial impropriety. There is no evidence that leads either inexorably orreasonably to the inference that Crown counsel was, in making the offer to Mr. Delchev, suggesting to Mr. Delchev that he do somethingunlawful.

There was no threat. [15] Since in the trial judge’s view there was no allegation or extrinsic evidence of “prosecutorial impropriety”, other than thesettlement negotiations themselves, she took the view that the exception canvassed by Low J. was as inapplicable here, as it had beenfound to be in Delchev. [16] As for the reasons why Mtre Rouillard had made an attempt to reach a settlement or, more accurately, a plea bargain in thecriminal file, the trial judge characterized them as irrelevant. Citing Middlekamp v.

Fraser Valley Real Estate Board[4] as an authority,she stated that, absent allegations of fraud, a party’s motives for engaging in settlement discussions are confidential and of no furtheraccount. * * * * * [17] The appellant’s counsel reminds us that the conditions for a successful action for malicious prosecution are stringent. She isright. While this is an area of the law where there still appears to be subtle lexical nuances between the treatment of this cause of actionat common law and in civil law, the policy of the law and the burden it places on a plaintiff are similar in the two legal systems.

InProulx v. Quebec (Attorney General),[5] Justices Binnie and Major, writing for the majority, explicitly approved[6] the approachadopted by Justice LeBel in the Court of Appeal of Quebec in the same case. In his dissenting opinion in Proulx, Justice LeBel hadmeticulously reviewed the reasons of Justice Lamer, as he then was, writing for the majority in Nelles v. Ontario.[7] He concluded thatidentical reasons of policy existed in Quebec as in the rest of Canada[8] for framing actions for malicious prosecution with strict anddistinct conditions.

Justice LeBel quotes these conditions from the majority opinion in Nelles.[9] These are also set out in the judgmentof our court in Popovic v. Montréal (Ville de),[10] where they are quoted[11] by Justice Rochon, writing for the Court ( I translate thepassage, relying on the original as it appears in the Supreme Court Reports):[12]

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. [18] I will not speculate here on the effect that the partial discontinuances I mentioned above in par. [12] might have on theapplication of conditions

a) and

c) in the appellant’s case. The debate in our court focussed on condition d). The appellant insisted on theinherent difficulty for a plaintiff of adducing evidence, and especially “extrinsic” evidence, of an improper prosecutorial purpose. On thispoint, it seems to me that the appellant is correct – indeed, as Nelles v. Ontario and Proulx v.

Quebec (Attorney General) make clear, itis the policy of the law that demands that such a cause of action be rigorously defined, and explicitly asserted by any potential claimant. [19] Bearing in mind the nature of this difficulty, I am not convinced that a further requirement of “extrinsic evidence” ought to beautomatically enforced in all cases of alleged malicious prosecution or abuse of process, particularly where the allegations are serious ontheir face.

And the allegations made here fall into that category. [20] In essence, the appellant’s case for prosecutorial misconduct or impropriety is that he was offered a complete withdrawal of thecharges against him in exchange for his undertaking not to sue the respondents in damages. Therefore, the implication of the appellant’sclaim is that, although the charges against him were groundless, they were kept pending over him in order to persuade him to forsakewhat might otherwise have been a justifiable claim in damages for unlawful arrest.

Whether or not this implication has substance as amatter of fact, and whether or not a quantifiable claim of damages could be based on it, obviously remain matters of debate, and theappellant may yet face additional difficulties in establishing his claim. But the allegations in support of which he sought to adduce thetestimonial evidence of his former counsel, if proven, would raise a real likelihood of prosecutorial impropriety, which the respondents

may then feel constrained to answer with additional evidence or new arguments. In this instance, it is the very offer made by the prosecutor which, depending on the precise context in which it was made, may or may not amount to prosecutorial impropriety. The evidence of appellant’s counsel in the criminal case ought to have been admitted. [ 21 ] For these reasons, I am of the view that the appeal should be allowed and that the respondents’ objection must be dismissed. YVES-MARIE MORISSETTE, J.A.