Hyra v. Manitoba et al., 2015 MBCA 55

Citation: Hyra v. Manitoba et al., 2015 MBCA 55 Date: 20150529 Docket: AI14-30-08156 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : JASON HYRA ) J. Hyra ) on his own behalf (Plaintiff) Appellant ) ) D. G. Guénette and - and - ) T. B. Dobson ) for the Respondents HER MAJESTY THE QUEEN IN RIGHT ) OF THE PROVINCE OF MANITOBA and ) Appeal heard: DAVID RAMPERSAD ) November 28, 2014 ) (Defendants) Respondents ) Judgment delivered: ) May 29, 2015 MAINELLA J.A.

Introduction and Issue [ 1 ] A well-established feature of our civil justice system is that liability arising from prosecutorial misconduct is “carefully circumscribed” to “ensure a reasonable balance between remedying serious rights violations and maintaining the efficient operation of our public prosecution system” ( Henry v. British Columbia (Attorney General) , 2015 SCC 24 at paras. 76 , 81). [ 2 ] The question raised on this appeal is whether or not a cause of action in negligence, based on an allegation of non- disclosure during criminal proceedings, may lie against an individual Crown prosecutor.

The short answer is no. [ 3 ] While a plaintiff may advance a claim against the state for constitutional damages based on an allegation of wrongful non-disclosure during criminal proceedings, or for private-law damages for a tort requiring proof of malice or improper motive, the decision of the majority of the Supreme Court of Canada in Henry confirms that the threshold for liability for wrongful non-disclosure is heightened from that of simple, or even gross, negligence. [ 4 ] For the following reasons, I would dismiss the appeal by the appellant from the decision striking out his claim for negligent prosecution.

Background History of Criminal Proceedings and the Civil Action [ 5 ] The appellant was charged with criminal harassment contrary to s. 264(2) (

d) of the Criminal Code (the Code ) over his conduct between 2001 and 2004 in relation to a woman with whom he had unsuccessfully attempted to pursue a romantic relationship (the complainant). The appellant was convicted of the allegation and his appeal was dismissed (see R. v. Hyra (J.) , 2007 MBCA 69 , 214 Man.R. (2d) 215 ). During those proceedings, the appellant was represented by counsel. [ 6 ] The appellant unsuccessfully pursued an application for a ministerial review of his conviction pursuant to s. 696.1 of the Code .

[7] After the ministerial review, the appellant commenced an action against the respondents, the Crown and the Crownprosecutor with the Manitoba Prosecution Service who conducted the criminal trial and appeal. The allegations set out in the statementof claim are: negligence, violations of the Canadian Charter of Rights and Freedoms (the Charter), discrimination, violations of TheLaw Society of Manitoba, Code of Professional Conduct, Winnipeg: Law Society of Manitoba, 2011 (online: The Law Society ofManitoba <http://www.lawsociety.mb.ca/lawyer-regulation/code-of-professional-conduct>), intimidation and harassment.

Theunderlying theme of the action is that, during criminal proceedings, the Crown prosecutor breached his disclosure obligations regardingcertain information held by the Winnipeg Police Service (WPS) and the Crown. [8] The appellant did not sue for malicious prosecution. He concedes that he cannot establish a requirement of that tort;namely, that the prosecution terminated in his favour, because his conviction for criminal harassment still stands (Nelles v.

Ontario, (SCC), [1989] 2 S.C.R. 170 at 192-93). [9] According to the statement of claim, the information held by the WPS arose from interviews the appellant and hismother had with the Professional Standards Unit of the WPS and interviews the appellant had with the WPS Recruiting Board. Thisinformation relates to accusations the appellant made of unprofessional, and possible criminal, conduct committed by the complainant,who was a former recruit of the WPS, and her then boyfriend (now husband), who is a police officer with the WPS.

The appellantalleges that this information confirms that the true narrative of events is that he was a victim of harassment and was not the harasser. [10] The information held by the Crown related to their file regarding the appellant on another criminal harassment allegationinvolving the same complainant with which the Crown did not proceed. [11] While the appellant admits he was aware of most of this information, because he was privy to its creation or hadpreviously received it in another legal process, he says that the Crown prosecutor nevertheless had a duty to disclose it to the defence inthe criminal proceeding related to the offence for which he was later convicted. [12] Nowhere in the statement of claim is it alleged that, although the defence was aware of this information in thepossession of the WPS and the Crown, the information was ever requested to be disclosed either prior to the trial or the appeal.

Thestatement of claim also does not allege that either of the appellant’s counsel during criminal proceedings complained to the trial judge orthis court about non-disclosure by the Crown. [13] The respondents moved to strike out the statement of claim on the basis that it did not disclose a reasonable cause ofaction (Queen’s Bench Rules, Man. Reg. 553/88, Rule 25.11(d)). They argued before the Master that the decisions of the Supreme Courtof Canada in Nelles; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; and Miazga v.

Kvello Estate, 2009 SCC 51,[2009] 3 S.C.R. 339, make it plain and obvious that the only cause of action that may lie against a Crown prosecutor in tort over his orher conduct of a prosecution, including an allegation of non-disclosure, is that of malicious prosecution. [14] The Master struck out all of the statement of claim except for the allegation of negligent prosecution due to non-disclosure (2013 MBQB 83, 290 Man.R. (2d) 198). The Master concluded that he was bound by the decision in Driskell v.

Dangerfieldet al., 2007 MBQB 142, 217 Man.R. (2d) 124, rev’d in part for other reasons, 2008 MBCA 60, 228 Man.R. (2d) 116, where the judgeconcluded that “the issue is not settled” as to whether a Crown prosecutor can be held civilly liable in negligence for an allegation ofnon-disclosure (at para. 69). [15] The respondents appealed the Master’s decision to not strike out the claim for negligent prosecution; the appellant didnot appeal the Master’s decision to strike out the rest of his statement of claim including his claim for damages pursuant to s. 24(1) of theCharter. [16] Before the motion judge, the respondents argued that the Master’s reliance on Driskell was an error because, in theirsubmission, Driskell did not accurately reflect the law as to potential civil liability of Crown prosecutors both before Driskell wasdecided and subsequently, particularly given the Miazga decision. [17] The motion judge concluded that it was not necessary for him to decide the correctness of Driskell as to whether or not anegligent prosecution is a reasonable cause of action.

Rather, he determined that because the appellant’s conviction for criminalharassment has never been set aside, an attempt to collaterally attack it by an action in negligence was an abuse of process of the court(Queen’s Bench Rule 25.11(c)). Position of the Parties on the Appeal [18] Before this court the appellant argues that the motion judge erred by not following the logic of Driskell. He says thatDriskell recognizes that the torts of malicious prosecution and negligence are different. He argues that his criminal conviction is not abar to a negligence claim, unlike a claim for malicious prosecution.

He submits that, because prosecutors have legal and ethical duties todisclose all relevant information to the defence, whether it is inculpatory or exculpatory, it is not settled law, as Driskell recognizes, thata breach of that duty is not actionable even if a plaintiff cannot meet the requirements of the tort of malicious prosecution. [19] The respondents maintain the position they took before the Master and the motion judge that tort law does not recognizethe concept of a negligent prosecution.

They argue that the discussion in Driskell of the possibility of an action for negligentprosecution because of non-disclosure was a legal error. Alternatively, they submit that there is no justification for appellate interferencewith the motion judge’s discretionary decision to strike the claim as an abuse of process because his decision was not the result of amisdirection, or otherwise, is not so clearly wrong as to amount to an injustice (Law Society of Manitoba v.

Mackinnon, 2014 MBCA 28at paras. 31-33, 303 Man.R. (2d) 223). [20] The Supreme Court of Canada rendered its decision in Henry after argument was heard in this appeal and the decisionreserved. Because Henry is relevant to the determination of this appeal, supplementary written submissions were accepted from theappellant and the respondents and were considered by the court pursuant to Rule 39.1 of the Court of Appeal Rules, Man. Reg. 555/88R. In his written submission of May 4, 2015, the appellant quotes exclusively from the minority decision in Henry and further asks that his

claim for constitutional damages be “reopened” based on the minority’s decision. The respondents, in their written submission of May12, 2015, say that Henry only reinforces their position that the appellant’s claim should be struck out.

Discussion Correctness of the Driskell Decision [21] The parties expended considerable effort in their facta and in oral arguments on the correctness of the conclusion inDriskell that, for the purposes of a motion to strike, it is unsettled law as to whether a Crown prosecutor can be sued in negligence basedon an allegation of non-disclosure giving rise to a violation of s. 7 of the Charter. [22] The respondents pointed out that, in addition to what they say is the clear language supporting their position in Nelles,Proulx, and Miazga, the Federal Court of Appeal and the Courts of Appeal of Alberta and Ontario had, prior to the decision in Driskell,decided that a negligent prosecution is not a reasonable cause of action and therefore the decision in Driskell should not have beenfollowed by the Master (see Reynen v.

Canada et al. (1995), 184 N.R. 350 at para. 2 (F.C.A.); German v. Major (1985), 1985 ABCA176 , 62 A.R. 2 at para. 60 (C.A.); Thompson v. Ontario et al. (1998), (ON CA), 113 O.A.C. 82 at para. 56;Miguna v. Ontario (Attorney General) et al. (2005), (ON CA), 205 O.A.C. 257 at para. 11; and Gilbert v. Gilkinsonet al. (2005), (ON CA), 205 O.A.C. 188 at para. 7, leave to appeal to S.C.C. ref’d, [2006] S.C.C.A. No. 67 (QL)). [23] I am satisfied that whether Driskell accurately reflected the law when it was decided in 2007 is of little moment.

Forreasons of finality and judicial comity, I would be reticent to transform this appeal into a surrogate appeal of Driskell when the individualprosecutors there, and the Attorney General, chose not to appeal the court’s decision. The decision of Driskell stands in relation to theparties to that case.

However, the recent decision of the Supreme Court of Canada in Henry removes any doubt as to the law for amotion to strike a civil claim based on an allegation of non-disclosure by a Crown prosecutor. [24] Post-Henry, the potential civil liability that may arise from wrongful non-disclosure by a Crown prosecutor in a criminalproceeding is two-fold. [25] First, the individual Crown prosecutor, the Attorney General and possibly the Crown, subject to any statutory immunityit may enjoy, may be sued for a nominate tort where a prerequisite for a successful claim is demonstration by a plaintiff that the Crownprosecutor’s conduct was actuated by malice or other improper motive (Nelles, Proulx, Miazga, Milgaard v.

Kujawa et al. (1994), (SK CA), 123 Sask.R. 164 at para. 27 (C.A.), leave to appeal to S.C.C. ref’d, [1994] S.C.C.A. No. 458 (QL); Folland v.Ontario (2003), (ON CA), 64 O.R. (3d) 89 (C.A.), leave to appeal to S.C.C. ref’d, [2003] S.C.C.A. No. 249 (QL);Gilbert at paras. 5-7; and Miguna at para. 11). The classic example is that of a suit for malicious prosecution. [26] Alternatively, the state, as opposed to a particular individual, may be sued for a violation of an accused’s s. 7 Charterrights relating to disclosure (Vancouver (City) v. Ward, 2010 SCC 27 at para. 22, [2010] 2 S.C.R. 28; and Henry).

In such an action,proof of malice is not necessary. The Crown prosecutor’s motive for non-disclosure of material that was required to be disclosed is“immaterial” (Henry at paras. 31-32, 45-66). [27] The differing views as to the civil liability threshold between the majority and the minority in Henry make it plain andobvious that, for the purposes of a motion to strike, a breach of the Crown’s constitutionally mandated disclosure obligations is notactionable in a situation of simple negligence or even gross negligence; more is required for a plaintiff to have a reasonable cause ofaction (see paras. 74-94).

As Moldaver J. explained for the majority, the “duty of care paradigm” (at para. 88) is ill-suited to the realitiesof criminal prosecutions given policy concerns, the spectrum of possible instances of non-disclosure and the differing roles of the policeand Crown in the criminal process (see paras. 91-94). [28] In my view, the approach taken by the majority in Henry conforms to the underlying principles of the law of negligence. The scope of liability for negligence as discussed in Anns v. Merton London Borough Council, [1978] A.C. 728 at 751-52 (H.L.), andsubsequently refined in Cooper v.

Hobart, 2001 SCC 79 at para. 30, [2001] 3 S.C.R. 537; and Edwards v. Law Society of Upper Canada,2001 SCC 80 at paras. 10-11, [2001] 3 S.C.R. 562 (the Anns test), is not based simply on whether a particular relationship, taking intoaccount policy considerations specific to it, has sufficient forseeability and proximity that a duty of care should be recognized either byanalogy to like relationships where a duty of care has been previously recognized, or because a duty of care should be recognized in thegiven context.

At the second stage of the Anns test, a prima facie duty of care may be negated altogether, or limited, due to residualpolicy considerations arising outside the relationship of the parties. Relevant is “the effect of recognizing a duty of care on other legalobligations, the legal system and society more generally” (Cooper at para. 37). [29] In Nelles, Lamer J. (as he then was) noted that the scope of prosecutorial immunity from civil liability “ultimately boilsdown to a question of policy” (at p. 199). [30] In Hill v.

Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 65, [2007] 3 S.C.R. 129, theSupreme Court of Canada concluded that there was no compelling policy reason to negate the liability of police for negligence in theconduct of an investigation under the second stage of the Anns test.

In doing so, the court rejected the idea that the potential of liabilityin negligence may unreasonably interfere with police decision-making, create a chilling effect on investigators, or lead to a flood ofunmeritorious claims against police. [31] In contrast to the approach taken in Hill, in each of the decisions of Nelles, Proulx, Miazga and Henry, a majority of theSupreme Court of Canada took the opposite view with respect to Crown prosecutors.

It has been repeatedly accepted that for reasons ofpublic policy - what Moldaver J. calls “good governance concerns” in Henry (at paras. 71-74) - limits on prosecutorial liability arejustified for fear of the potential chilling effects civil claims may have on prosecutorial decision-making and the harassment prosecutorswould face by marginal claims if the scope of prosecutorial liability is too broad. [32] A similar position, based on reasoning akin to the majority decision in Henry, was taken by the English Court of Appealin Elguzouli-Daf v. Comr. of Police of the Metropolis, [1995] Q.B. 335 (C.A.).

Lord Steyn stated that, “compelling considerations,

rooted in the welfare of the whole community” negate a general duty of care, for purposes of liability in negligence, being owed by theCrown Prosecution Service to those it prosecutes (at p. 349, see also Gray v.

Crown Prosecution Service, [2010] EWHC 2144 atparas. 33-34 (BAILII) (Q.B.)). [33] In light of this jurisprudence, when the Anns test is considered, even if one were to accept, for the sake of argument, thata prima facie duty of care could be said to be owed by a prosecutor to an individual accused (instead of a prosecutor’s duties being owedto the Crown and the public interest), looking at that relationship, and the policy considerations specific to it, that duty of care is negatedaltogether based on residual policy considerations relating to the greater good of ensuring the proper functioning of the criminal justicesystem by Crown prosecutors carrying out their public duty as “ministers of justice assisting in its administration” (Boucher v.

TheQueen, (SCC), [1955] S.C.R. 16 at 26). Application of Henry to this Case [34] In my view, the appellant’s action over alleged non-disclosure by the Crown prosecutor is fatally flawed for threereasons. i.

An Action for Negligent Prosecution is not a Reasonable Cause of Action [35] To begin, as previously stated, the appellant’s argument that he can sue the Crown and the Crown prosecutor innegligence for a violation of his s. 7 Charter rights due to the non-disclosure during criminal proceedings is clearly inconsistent with themajority’s decision in Henry, which categorically rejects the idea of prosecutorial liability based on the “duty of care paradigm”.

WhenHenry is read in light of Nelles, Proulx, and Miazga, it is beyond doubt that there is no cause of action in negligence based on anallegation of non-disclosure by a Crown prosecutor in a criminal proceeding. ii.

The Claim Does Not Meet the Liability Threshold Established in Henry [36] Leaving aside the question of whether the appellant’s claim for constitutional damages pursuant to s. 24(1) of theCharter may be “reopened” now after it was struck by the Master and no appeal of that order was taken, I fail to see how the appellant’spleading could have supported such a claim for constitutional damages, given the requirements of Henry. [37] In Henry, the majority of the Supreme Court of Canada concluded that, while the constitutional obligation on the Crownregarding disclosure as set out in R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326, and subsequent decisions, is stringentand demanding, a breach of that duty alone is not sufficient to support a Charter claim for damages. Instead “good governance concernsmandate a threshold that substantially limits the scope of liability for wrongful non-disclosure” (Henry at para. 74). [38] The heightened civil liability threshold for cases of wrongful non-disclosure was described as follows in Henry (at para.85): Whether considered at the pleadings stage or at trial, the same formulation of the test applies.

At trial, a claimant would have toconvince the fact finder on a balance of probabilities that (1) the prosecutor intentionally withheld information; (2) the prosecutor knewor ought reasonably to have known that the information was material to the defence and that the failure to disclose would likely impingeon his or her ability to make full answer and defence; (3) withholding the information violated his or her Charter rights; and (4) he or shesuffered harm as a result.

To withstand a motion to strike, a claimant would only need to plead facts which, taken as true, would besufficient to support a finding on each of these elements. [39] The deficiency with the appellant’s statement of claim is that even when generously read, it fails to plead any factswhich, taken as true, could support the liability threshold set out in Henry (see Grant v. Winnipeg Regional Health Authority et al., 2015MBCA 44 at para. 37).

This characteristic of the appellant’s pleading is “fatal to the claim” (Henry at para. 43). [40] The starting point for why the claim does not have a reasonable prospect of success is due to the important role defencecounsel play in the disclosure process in order to ensure that an accused is able to make full answer and defence (see Wiche v. Ontario etal., [2001] O.T.C. 359 at paras. 103-5 (Sup. Ct.), aff’d, [2003] O.J. No. 221 (QL) (C.A.)). Defence counsel have an obligation to be dulydiligent by actively seeking and pursuing disclosure from the Crown. As Cory J. stated in R. v.

Dixon, (SCC), [1998] 1S.C.R. 244 (at para. 38): .… If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed todisclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept asubmission that the failure to disclose affected the fairness of the trial. …. [41] Concomitant to the duty to be diligent in the disclosure process, defence counsel also have a duty to act “responsibly”and not request information they believe is irrelevant, unnecessary to make full answer and defence, or is calculated to create needlesscontroversy (R. v.

Girimonte (F.) (1997), (ON CA), 105 O.A.C. 337 at paras. 11-12). [42] In my view, the appellant’s submission fails to recognize the important distinction between the Crown’s constitutionalduty to disclose all relevant information, and when that duty is triggered (see Stinchcombe at p. 343).

[43] The appellant’s statement of claim makes it clear that his two criminal lawyers knew, or ought to have known, of theexistence of the information held by the WPS and the Crown that was not disclosed. However, neither of them requested it from theCrown at any time prior to the conviction appeal being dismissed.

Moreover, according to para. 6 of the statement of claim, therelevance of some of the information in question only arose during the trial when defence counsel cross-examined the complainant abouther interactions with the WPS Recruiting Board without first requesting or receiving any of that information from the Crown.

The claimdoes not suggest that defence counsel at trial, or on appeal, failed to meet their diligence requirements as set out in Dixon or otherwise didnot act responsibly in deciding how best to defend the case against the appellant. [44] Also germane is that at no time during the criminal proceedings was a timely objection taken to the alleged non-disclosure by the Crown before either the trial judge or this court for a remedy in the criminal process (see Stinchcombe at p. 341; R. v.McAnespie, (SCC), [1993] 4 S.C.R. 501; and R. v.

Bramwell, (SCC), [1996] 3 S.C.R. 1126). [45] The tactical choices of defence counsel make it difficult to say that the alleged non-disclosure by the Crown affected thefairness of the appellant’s criminal proceedings (Dixon at para. 37). The law does not hold the Crown to a standard of clairvoyance inthe disclosure process (R. v. Wilson (H.B.) (1994), (ON CA), 68 O.A.C. 131 at para. 18). The assessment ofrelevance, for disclosure purposes, should not be done from “the vantage ground that hindsight provides” (R. v. Sweeney (D.J.), 2003MBCA 127 at para. 19, 180 Man.R. (2d) 35).

The appellant may see the information in question as material now in his efforts to proveeither that he was wrongfully convicted of criminal harassment, or, that the disclosure given to his counsel by the Crown was deficient,but that does not mean that the Crown breached its disclosure obligations during criminal proceedings, which is what his civil action isabout. [46] The only reasonable inference that can be drawn from the facts as pleaded in the statement of claim is that theinformation in question was not material (i.e., relevant) to the defence in making full answer and defence and therefore did not have to bedisclosed by the Crown.

In my view, there is nothing in the statement of claim that could, if proven, establish that the Crown’sdisclosure obligation, in relation to the information in question, was ever triggered during the appellant’s criminal proceeding (see R. v.McNeil, 2009 SCC 3 at paras. 17, 49, [2009] 1 S.C.R. 66). iii. The Claim is an Abuse of Process [47] Finally, I see no basis to interfere with the motion judge’s conclusion that the action is an abuse of process.

He did notmisdirect himself and, given that no complaint about the non-disclosure was made during the criminal process despite counsel havingactual or imputed knowledge of the existence of the information, I do not see striking the claim as being manifestly unjust in thecircumstances. The civil claim is nothing more than a collateral attack on a criminal conviction that stands (Toronto (City) v. C.U.P.E.,Local 79, 2003 SCC 63 at para. 33, [2003] 3 S.C.R. 77). Conclusion [48] In the result I would dismiss the appeal with costs in favour of the respondents. J.A. I agree: J.A. I agree: J.A.