IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120924

Docket: S114405

Registry:
Vancouver

Between:

Ivan William
Mervin Henry

Plaintiff

And

Her Majesty the
Queen in right of the Province
of British Columbia as represented by the Attorney
General of British Columbia, City of Vancouver,
William Harkema, Marilyn Sims, Bruce Campbell and
Attorney General of Canada

Defendants

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

INTRODUCTION

[1]            
On March 15, 1983, a jury convicted the plaintiff, Ivan Henry, of ten sexual
offence counts involving eight complainants. On November 23, 1983 the trial
judge declared the plaintiff a dangerous offender and sentenced him to an
indefinite period of incarceration.

[2]            
The plaintiff remained incarcerated until granted bail on June 13, 2009.
On October 27, 2010, the Court of Appeal quashed the convictions and entered
acquittals on all counts: 2010 BCCA 462 (the “Appeal Reasons”).

[3]            
The Appeal Reasons, at paras. 11-34, set out in some detail the history
leading up to the plaintiff’s original trial and various events subsequent to
the trial which ultimately led to an order on January 13, 2009 that the appeal
be reopened and heard on its merits. For the purpose of these reasons, it is
not necessary for me to repeat that chronological history.

[4]            
The plaintiff now seeks damages for injuries allegedly suffered as a
consequence of his 1983 conviction and subsequent imprisonment. The plaintiff
alleges that due to the wrongful acts and omissions of the defendants, he was
charged, detained in custody, wrongfully convicted and imprisoned. The
plaintiff claims damages for loss of liberty, pain and suffering, loss of
enjoyment of life, subjugation to prison life and lost income.

[5]            
The plaintiff makes claims against three separate sets of defendants. The
plaintiff’s claim against the City of Vancouver, William Harkema, Marilyn Sims,
and Bruce Campbell (collectively “the City”) is centred on the Vancouver Police
Department (the “VPD”) investigation of a series of sexual assaults that took
place in Vancouver between November 25, 1980 and June 8, 1982. At the material
times, the individual defendants Harkema, Sims and Campbell were all members of
the VPD. The plaintiff alleges that the City owed the plaintiff the duty to
take reasonable care in its investigation of him as a suspect.

[6]            
The plaintiff further alleges that the City was negligent in failing to
disclose to Crown counsel certain sexual assaults that took place subsequent to
the plaintiff’s arrest. He alleges that these assaults had some similarities in
nature to those for which the plaintiff was charged. In addition, the plaintiff
alleges that the City breached his rights under ss. 7, 10 and 11(d) of the
Charter of Rights and Freedoms (the “Charter”).

[7]            
The claim against the Attorney General of Canada (“Canada”) concerns Canada’s
consideration of the plaintiff’s applications for review of his convictions. The
plaintiff claims that Canada was negligent in failing to carefully consider the
review applications and to ensure that they were the subject of proper legal
analysis. The plaintiff claims that the acts and omissions of Canada breached
his rights under s. 7 of the Charter not to be deprived of liberty
except in accordance with the principles of fundamental justice.

[8]            
The plaintiff’s claims against Her Majesty the Queen in right of the
Province of British Columbia (the “Province”) relate to the actions of Crown
counsel through the course of trial and subsequent appeal processes which are
alleged to have been negligent, undertaken maliciously and/or constitute a
breach of the plaintiff’s rights under the Charter. The Province has admitted
in its response that it is liable for any actionable misconduct on the part of
Crown counsel.

[9]            
In this application, the Province pursuant to Rules 9-5(1)(a) and 9-6(4)
seeks an order striking certain paragraphs of the notice of civil claim and
dismissing the claims against the Province for damages for negligence and
breach of Charter rights. The Province submits that the actions of Crown
counsel in the course of a criminal prosecution are immune from civil liability
in damages other than through the tort of malicious prosecution. The Province
relies on the doctrine of prosecutorial immunity established in Nelles v.
Ontario, [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609 [Nelles]. The
Province acknowledges that the plaintiff’s claims based on malicious prosecution
and misfeasance in public office cannot be summarily dismissed.

[10]        
The plaintiff opposes the application. He submits that Nelles
does not settle the law as to whether claims in negligence can ever lie against
prosecutors. He acknowledges that this question can be determined on this
application without the need for evidence.

[11]        
With regard to the application to strike the plaintiff’s claim for Charter
relief, the plaintiff submits that there exists no jurisprudence to support the
Province’s position that common law Crown immunity ousts the jurisdiction of
the court to award damages for a prosecutor’s Charter breach. He submits
it is far from plain and obvious that the claim for Charter damages is
certain to fail and submits that the existence of Charter damages in
this case should only be determined on the basis of a full factual record.

[12]        
Canada appeared on the application and made a brief submission which
generally supported the position of the Province that the claims against the
Province premised on negligence and/or Charter breaches should be struck
out. The City took no position on the application.

DISCUSSION

A. Overview

[13]        
In order to resolve this application, it is first necessary to review
the specific allegations made against the Province in the notice of civil claim.
For the purpose of this application, those allegations are assumed to be true
and form the context pursuant to which the application must be decided. I will next
review the decision in Nelles and several decisions that have post-dated
Nelles. I will then turn to the legal basis of the application and finally
the question of whether either the negligence or Charter claims should
be struck. The analysis of the claims under the Charter will require
consideration of the decision in Vancouver (City) v. Ward, 2010 SCC 27,
[2010] 2 S.C.R. 28 [Ward].

B. Notice of Civil Claim

[14]        
The notice of civil claim was issued on June 28, 2011. Paragraphs 113 to
123 and 130 set out the legal basis for the claim against the Province. Those
paragraphs are set out in full in the appendix to these reasons.

[15]        
In the notice of civil claim, the plaintiff alleges that the
prosecutors:

(a)      owed him a duty of care
and breached that duty (paras. 113-118 – negligence);

(b)      breached his rights under
sections 7 and 11(d) of the Charter giving rise to a remedy in damages
under s. 24(1) of the Charter (paras. 119, 122-123, 130 – Charter
damages);

(c)      as public officers and in
the purported exercise of their powers as such, acted maliciously or with
knowledge that their actions were unlawful and would probably cause injury to
the plaintiff (para. 120 – misfeasance in public office);

(d)      prosecuted the plaintiff
without reasonable and probable grounds and for an improper purpose, namely, to
bring about the conviction of the plaintiff notwithstanding the absence of
reasonable and probable grounds supporting his guilt, and in the face of a body
of evidence that supported his innocence, which they chose to suppress (para. 121
– malicious prosecution).

[16]        
In this application, the Province seeks to dismiss the plaintiff’s claim
in negligence and his claim for Charter damages. The Province would
leave for trial the claims in malicious prosecution and misfeasance in public
office as each of those causes of action entails a threshold requirement of bad
faith or improper purpose. The Province submits that the negligence and Charter
damage claims (as pled by the plaintiff) do not require either bad faith or
improper purpose.

C. The Nelles
Decision

[17]        
Ms. Nelles was a nurse at the Toronto Hospital for Sick Children. She
was charged with the murder of four infant patients. After the case against her
was dismissed at a preliminary hearing upon a finding of the absence of
evidence, she commenced an action against various parties including the Crown
attorneys involved in her prosecution. The claim against the Crown attorneys
alleged negligence and, in the alternative, malicious prosecution and false
imprisonment.

[18]        
Before trial, the Crown attorneys moved to have the action against them dismissed
on the grounds the pleadings disclosed no reasonable cause of action. The
question of law put before the court was in these terms:

A defendant in a preliminary
inquiry held under the provisions of the Criminal Code of Canada and discharged
thereof has no cause of action based in malicious prosecution or negligence
against the Crown Attorneys conducting such proceedings or against those in law
responsible for their conduct.

[19]        
In the first instance, Fitzpatrick J. of the Supreme Court of Ontario
allowed the motion and struck out the statement of claim. He held that the
Attorney General for Ontario has an absolute immunity from civil actions while
performing his duties as a public prosecutor, even if he acted maliciously.

[20]        
In the Ontario Court of Appeal and the Supreme Court of Canada, the
submissions were limited to the question of whether the claim for malicious
prosecution could be maintained. The Ontario Court of Appeal, in reasons
reported at (1985), 51 O.R. (2d) 513, 21 D.L.R. (4th) 103, held that
prosecutors acting within the bounds of their authority enjoyed an absolute
immunity from civil suit for their conduct in initiating and conducting
criminal prosecutions. In reaching that decision, it relied extensively on the
decision of the United States Supreme Court in Imbler v. Pachtman, 424
U.S. 409 (1976) [Imbler]. While the Court of Appeal found the idea of an
absolute immunity "troubling", it determined that it was justified by
the following policy concerns. First, the rule encourages public trust in the
fairness and impartiality of those who act and exercise discretion in the
bringing and conducting of criminal prosecution; the rule is designed for the
benefit of the public not the benefit of the individual prosecutor. Second, the
threat of personal liability for tortious conduct would have a chilling effect
on the prosecutor’s exercise of discretion, and third, to permit civil suits
against prosecutors would invite a flood of litigation that would deflect a
prosecutor’s energies from the discharge of his public duties. In short, the
absence of an absolute immunity would open the door to unmeritorious claims and
would be a threat to prosecutorial independence.

[21]        
The question facing the Supreme Court of Canada in Nelles was
whether, and to what extent, Imbler should be followed in Canada. The
lead judgment was written by Lamer J. (as he then was). In his reasons, he
recognized there was merit in the policy concerns identified in Imbler and
in the Court of Appeal decision but held that there were countervailing policy
reasons that mitigated against absolute immunity. In particular, he noted that
absolute immunity for prosecutors would prevent a wrongdoer from being held
accountable by a victim and would effectively bar the seeking of a remedy under
s. 24(1) of the Charter. He dismissed concerns that anything less
than absolute immunity would have a “chilling effect” on a prosecutor’s
exercise of discretion. He noted that in cases of malicious prosecution a
plaintiff would have to prove both the absence of reasonable and probable cause
in commencing the prosecution and malice in the form of deliberate and improper
use of office. Such cases would not be dealing with second guessing a
prosecutor’s judgment but rather with “the deliberate and malicious use of
office for ends that are improper and inconsistent with the traditional
prosecutorial function”: Nelles at pp. 196-197.

[22]        
He concluded his analysis at pp. 199-200:

A review of the authorities on the issue of prosecutorial
immunity reveals that the matter ultimately boils down to a question of policy.
For the reasons I have stated above I am of the view that absolute immunity for
the Attorney General and his agents, the Crown Attorneys, is not justified in
the interests of public policy. We must be mindful that an absolute immunity
has the effect of negating a private right of action and in some cases may bar
a remedy under the Charter. As such, the existence of absolute immunity is a
threat to the individual rights of citizens who have been wrongly and
maliciously prosecuted. Further, it is important to note that what we are
dealing with here is an immunity from suit for malicious prosecution; we are
not dealing with errors in judgment or discretion or even professional
negligence. By contrast the tort of malicious prosecution requires proof of an
improper purpose or motive, a motive that involves an abuse or perversion of
the system of criminal justice for ends it was not designed to serve and as
such incorporates an abuse of the office of the Attorney General and his agents
the Crown Attorneys.

There is no doubt that the policy
considerations in favour of absolute immunity have some merit. But in my view
those considerations must give way to the right of a private citizen to seek a
remedy when the prosecutor acts maliciously in fraud of his duties with the
result that he causes damage to the victim. In my view the inherent difficulty
in proving a case of malicious prosecution combined with the mechanisms
available within the system of civil procedure to weed out meritless claims is
sufficient to ensure that the Attorney General and Crown Attorneys will not be
hindered in the proper execution of their important public duties. Attempts to
qualify prosecutorial immunity in the United States by the so-called functional
approach and its many variations have proven to be unsuccessful and
unprincipled as I have previously noted. As a result I conclude that the
Attorney General and Crown Attorneys do not enjoy an absolute immunity in
respect of suits for malicious prosecution.

[23]        
Madam Justice L’Heureux-Dubé dissented. She would have affirmed the
Court of Appeal judgment and found that the immunity from civil suit was
absolute. Justice La Forest agreed with the common law position set forth by
Lamer J., but suggested consideration of Charter implications should be
left to another day when it was necessary to deal with them. McIntyre J. was of
the view that the state of the law relating to the question of Crown immunity
was far from clear and should not be determined on a preliminary motion.

D. Post Nelles
Authorities

[24]        
Since the decision in Nelles, the Supreme Court of Canada has on
two occasions addressed the question of prosecutorial liability. In Proulx
v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9 [Proulx],
the court discussed liability for prosecutorial misconduct at paras. 4 and
35:

[4] Under our criminal justice system,
prosecutors are vested with extensive discretion and decision-making authority
to carry out their functions. Given the importance of this role to the
administration of justice, courts should be very slow indeed to second-guess a
prosecutor’s judgment calls when assessing Crown liability for prosecutorial
misconduct. Nelles v. Ontario, [1989] 2 S.C.R. 170, affirmed unequivocally the
public interest in setting the threshold for such liability very high, so as to
deter all but the most serious claims against the prosecuting authorities, and
to ensure that Crown liability is engaged in only the most exceptional
circumstances. Against these vital considerations is the principle that the
Ministry of the Attorney General and its prosecutors are not above the law and
must be held accountable. Individuals caught up in the justice system must be
protected from abuses of power. In part, this accountability is achieved
through the availability of a civil action for malicious prosecution.

…

[35]… As such a suit for
malicious prosecution must be based on more than recklessness or gross
negligence. Rather, it requires evidence that reveals a willful and intentional
effort on the Crown’s part to abuse or distort its proper role within the
criminal justice system. In the civil law of Quebec, this is captured by the
notion of “intentional fault”. The key to a malicious prosecution is malice,
but the concept of malice in this context includes prosecutorial conduct that
is fueled by an “improper purpose” or, in the words of Lamer J. in Nelles,
supra, a purpose “inconsistent with the status of ‘minister of justice’”.

[25]        
In Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339
[Miazga] at paras. 7-8, the court reiterated that a claim against a
prosecutor required highly exceptional circumstances of prosecutorial
misconduct:

[7]        Just as immunity from judicial review is subject
to the doctrine of abuse of process in public law, the Attorney General and
Crown attorneys do not enjoy absolute immunity from a suit for malicious
prosecution in private law. A person accused of a criminal offence enjoys a
private right of action when a prosecutor acts maliciously in fraud of his or
her prosecutorial duties with the result that the accused suffers damage.
However, the civil tort of malicious prosecution is not an after-the-fact
judicial review of a Crown’s exercise of prosecutorial discretion. Under the
strict standard established in Nelles, malicious prosecution will only
be made out where there is proof that the prosecutor’s conduct was fuelled by
"an improper purpose or motive, a motive that involves an abuse or
perversion of the system of criminal justice for ends it was not designed to
serve" (Nelles, at p. 199). In other words, it is only when a
Crown prosecutor steps out of his or her role as "minister of
justice" that immunity is no longer justified.

[8]  The high
threshold for Crown liability was reiterated in Proulx, where the Court
stressed that malice in the form of improper purpose is the key to proving
malicious prosecution. In the context of a case against a Crown prosecutor,
malice does not include recklessness, gross negligence or poor judgment. It is
only where the conduct of the prosecutor constitutes an "abuse of
prosecutorial power", or the perpetuation of a "fraud on the process
of criminal justice" that malice can be said to exist (paras. 44-45).
Having regard to the defendant prosecutor’s mixed motives, the Court was
satisfied that Proulx was one of those "highly exceptional"
cases in which Crown immunity for prosecutorial misconduct should be lifted,
and the defendant found liable for malicious prosecution.

[26]        
The plaintiff has cited several authorities which suggest that Nelles
has not foreclosed action in negligence against prosecutors. In McTaggart v.
Ontario (1991), 6 O.R. (3d) 456, 86 D.L.R. (4th) 556 (Gen. Div.) [McTaggart],
Corbett J. held that he was not persuaded that Lamer J.’s comments in Nelles
went so far as to hold that the tort of negligent prosecution did not lie. The
Saskatchewan Court of Appeal came to a similar conclusion in Milgaard v. Saskatchewan
(1994), 118 D.L.R. (4^th) 653, 9 W.W.R. 305 [Milgaard]. Relying
on several Ontario cases including McTaggart, the court concluded that
it would be premature at the pre-trial stage of proceedings to declare the
prosecutors immune from civil liability for claims in negligence “if it was
actuated or contributed to by malice or other improper motives”.

[27]        
Similar results have been reached in two decisions of this Court. In Curry
v. Vancouver (City), [1996] B.C.W.L.D. 1130, [1996] B.C.J. No. 625
(S.C.) Shaw J. refused to strike out a claim in negligence against a Crown
prosecutor. In reaching that decision, he referred to Milgaard and the
decision of the Divisional Court of Ontario in Munro v. Canada, [1993]
110 D.L.R. (4^th) 580, 16 O.R. (3d) 564 (Div. Ct.) [Munro]. As
previously noted in Milgaard, the court held that it was open to
argument that there may be a claim in negligence “if it was actuated or
contributed to by malice or other improper motives”. In Munro, the
Divisional Court struck out the claim in negligence saying at p. 582:

Unlike negligence, the other
causes of action in the statement of claim, namely, malicious prosecution,
abuse of process and conspiracy to injure, all require proof of moral turpitude.

[28]        
Shaw J. concluded that the question was arguable and should be left for
the trial judge to decide in light of the evidence, the jurisprudence and the submissions.

[29]        
 Strauss v. Jarvis, 2005 BCSC 1830, concerned an application to
join as additional defendants in an action lawyers who had prosecuted a case on
behalf of Health Canada. In the first instance, a Master, in reasons found at
2005 BCSC 494, held that the proposed defendants did not owe a duty of care to
the plaintiff. Citing Nelles, she held that a prosecutor is protected
from law suits in the exercise of his or her discretion, except in cases of
malicious prosecution. A.F. Wilson J. allowed the appeal. He followed the
decision in McTaggart and concluded that the law was not so clear that
the claims should not be allowed to proceed to trial.

[30]        
In Driskell v. Dangerfield , 2007 MBQB 142, [2007] 9 W.W.R. 323 [Driskell],
Greenberg J. refused to strike a claim in negligence against a prosecutor. In
her analysis, she pointed out there was no case law binding upon her which held
that no cause of negligence lies against prosecutors. While acknowledging that
there was no Canadian case where a finding of negligence was made against a
prosecutor for the conduct of a prosecution, she noted that in McTaggart
and Milgaard actions in negligence were allowed to proceed. She
concluded that the law was not settled and should be resolved with the benefit
of a full factual record.

[31]        
The reasoning in Driskell was followed in Ferron v. Goodier,
2010 ONSC 540 where Price J. refused to strike a negligence allegation against
a prosecutor. Like Greenberg J. in Driskell, he held the allegations
should proceed to trial.

E. The Application

i.
Overview

[32]        
The Province applies under Rules 9-5(1)(a) and 9-6(4) to strike
paragraphs 113-119, 122-23 and 130 of the notice of civil claim, and to dismiss
the claims against the Province for negligence and breach of Charter
rights.

ii.
Rule 9-5 (1)(a)

[33]        
Rule 9-5 (1)(a) (formerly Rule 19(24)(a)) reads as follows:

(1) 
At any stage of a proceeding, the court may order to be struck out or amended
the whole or any part of a pleading, petition or other document on the ground
that

(a) it
discloses no reasonable claim or defence, as the case may be,

and the
court may pronounce judgment or order the proceeding to be stayed or dismissed
and may order the costs of the application to be paid as special costs.

[34]        
In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3
S.C.R. 45, [Imperial Tobacco] the Supreme Court of Canada at para. 17
restated the test for striking out claims under the rule:

The parties agree on the test
applicable on a motion to strike for not disclosing a reasonable cause of
action under r. 19(24)(a) of the B.C. Supreme Court Rules. This Court
has reiterated the test on many occasions. A claim will only be struck if it is
plain and obvious, assuming the facts pleaded to be true, that the pleading
discloses no reasonable cause of action: Odhavji Estate v. Woodhouse,
2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15: Hunt v. Carey Canada
Inc., [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test
is that the claim has no reasonable prospect of success. Where a reasonable
prospect of success exists, the matter should be allowed to proceed to trial:
see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38,
[2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of
Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.

[35]        
The Court explained the purpose of the test at paras. 19-20:

19 The
power to strike out claims that have no reasonable prospect of success is a
valuable housekeeping measure essential to effective and fair litigation. It
unclutters the proceedings, weeding out the hopeless claims and ensuring that
those that have some chance of success go on to trial.

20 This promotes two goods – efficiency in the conduct of
the litigation and correct results. Striking out claims that have no reasonable
prospect of success promotes litigation efficiency, reducing time and cost. The
litigants can focus on serious claims, without devoting days and sometimes
weeks of evidence and argument to claims that are in any event hopeless. The
same applies to judges and juries, whose attention is focused where it should
be – on claims that have a reasonable chance of success. The efficiency gained
by weeding out unmeritorious claims in turn contributes to better justice. The
more the evidence and arguments are trained on the real issues, the more likely
it is that the trial process will successfully come to grips with the parties’
respective positions on those issues and the merits of the case.

[36]        
Those words are apt in this case. If the negligence case against the prosecutors
proceeds, it will be necessary to devote significant time at trial to hear and
consider evidence concerning the standard of care by which the prosecutors’ actions
must be judged. The standard of care will have to be determined in the context
of impugned conduct that took place over an extended period stretching back some
30 years. If no duty of care exists much of that evidence will be unnecessary
at trial.

[37]        
A motion to strike for failure to disclose a reasonable cause of action
proceeds on the basis that the facts pleaded are true. Evidence is not
admissible on such an application. A claimant is not entitled to rely on the
possibility that new facts may turn up as the case progresses: Imperial
Tobacco at para. 22.

[38]        
A successful application under Rule 9-5(1)(a) can lead to an order
striking the pleadings with leave to amend if the defect in the pleading may be
cured by amendment. When the claim is without legal foundation regardless of
how it is pleaded, the court may grant judgment and dismiss the claim: Extra
Gift Exchange Inc. v. Ernest and Twins Venturer (PP Ltd.), 2007 BCSC 426 at
paras. 17-22.

iii.
Rule 9-6

[39]        
Rule 9-6 is the successor to the old Rule 18. Rule 9-6 is, however, significantly
different from Rule 18 and contains provisions not found in the old rule: L.D.
(Guardian ad litem of) v. Provincial Health Services Authority, 2011 BCSC
628, 234 C.R.R. (2d) 84.

[40]        
On this application the Province relies on subsections 9-6(4) and 9-6(5)
which read as follows:

(4)        In an action, an answering party may, after
serving a responding pleading on a claiming party, apply under this rule for
judgment dismissing all or part of a claim in the claiming party’s originating
pleading.

(5)        On hearing an application under subrule (2) or
(4), the court,

(a)  if
satisfied that there is no genuine issue for trial with respect to a claim or
defence, must pronounce judgment or dismiss the claim accordingly,

(b)  if satisfied that the only genuine issue is
the amount to which the claiming party is entitled, may order a trial of that
issue or pronounce judgment with a reference or an accounting to determine the
amount,

(c) 
if satisfied that the only genuine issue is a question of law, may determine
the question and pronounce judgment accordingly, and

(d) 
may make any other order it considers will further the object of these Supreme
Court Civil Rules.

[41]        
In Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1
S.C.R. 372 [Lameman], the Court at para. 10 discussed the purpose
of the Alberta summary judgment rule in words similar to those used to describe
the purpose of Rule 9-5(1)(a):

10  This appeal is
from an application for summary judgment. The summary judgment rule serves an
important purpose in the civil litigation system. It prevents claims or
defences that have no chance of success from proceeding to trial. Trying
unmeritorious claims imposes a heavy price in terms of time and cost on the
parties to the litigation and on the justice system. It is essential to the
proper operation of the justice system and beneficial to the parties that
claims that have no chance of success be weeded out at an early stage.
Conversely, it is essential to justice that claims disclosing real issues that
may be successful proceed to trial.

[42]        
In Hagdust v. British Columbia Lottery Corp., 2011 BCSC 1627,
Savage J. at para. 14 applied the reasoning in Lameman to Rule 9-6.
At paras. 15-18 he explained the workings of the new rule:

[15] The Rule provides that if a Court is "satisfied
that there is no genuine issue for trial with respect to a claim or
defence", the Court "must pronounce judgment or dismiss the claim
accordingly: Rule 9-6(5)(a). In my view, this standard, that there is "no
genuine issue for trial" is no different than the "bona fide triable
issue" standard under the old rule. Thus, for a claim to be dismissed on a
summary judgment application, it must be manifestly clear that there is no
matter to be tried: Progressive Construction Ltd. v. Newton (1981), 25
B.C.L.R. 330 (S.C.).

[16] BCLC also relies on Rule 9-6(5)(c) which provides that
if "satisfied that the only genuine issue is a question of law, [the
Court] may determine the question and pronounce judgment accordingly".
Rule 9-6(5)(c) did not have any comparable section in the old Rule 18. In L.D.
(Guardian ad litem of) v. Provincial Health Services Authority, 2011 BCSC
628 Sewell J. suggested caution in approaching this new provision (para. 19).
He opined that a court should decide an issue of law only if satisfied that
here is no real dispute about the material facts and the issue of law is
"well settled by authoritative jurisprudence" (para. 20).
Further, the Summary Trial Rule, "Rule 9-7 is better suited for deciding
novel points of law because on a summary trial, the Court will have a more
complete record framing the question of law" (para. 20). Neither
party before me raised an issue with regards to this reasoning.

[17]  Rule 9-6(5)(c) also limits determinations of
questions of law to certain circumstances. That is, the court may only make
determinations on questions of law where it would allow the court "to
pronounce judgment accordingly". In the context of Rule 9-6(4), where the
application is to dismiss "all or part of the claim", this means that
determination of the question of law must allow the court to pronounce judgment
on at least part of the claim. Of course, an application for summary judgment
seeks a final order: Forest Glen Wood Products Ltd. v. British Columbia
(Minister of Forests), 2008 BCCA 480. Since an application for summary
judgment seeks a final order, it would be wrong or at least premature to decide
a question of law that did not lead to that result pursuant to this provision.

[18] It seems, then, that jurisdiction under Rule 9-6(5)(c)
is intended to allow the court to determine on a summary basis whether there is
a genuine question of law standing between the plaintiff’s claim and judgment:
See Canada (Attorney General) v. Lameman, at para. 10, Leclair
v. Ontario (Attorney General) (2008), 93 O.R. (3d) 131, aff’d, 2009 ONCA
471. Where the state of the law is clear, and there is a straightforward answer
to a legal question that will allow the court to dispose of the claim and thus
protect its processes from abuse by unmeritorious claims and defences, then the
court may answer the question. It does not confer a broad discretion to
determine issues of law that might otherwise be germane to a proceeding falling
short of allowing the court to pronounce judgment on all or part of a claim:
See Provincial Health Authority, at para. 20

F. The
Negligence Claim

[43]        
The question for determination on this part of the application is whether
or not a claim of negligence can be maintained against the Province for the
actions of the prosecutors. While much of the argument concerned the question
of Crown immunity, that is, with respect, but an aspect of the analysis. The
real question for determination in a negligence analysis is whether in fact a
prosecutor owes an accused person a duty of care.

[44]        
The existence of a duty of care is determined by the two-stage analysis
first set out in Anns v. Merton London Borough Council, [1978] A.C. 728
(H.L.) [Anns] and interpreted by the Supreme Court of Canada in a number
of decisions including Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537
[Cooper].

[45]        
The court in Cooper set out the framework for determining the
existence of a duty of care at para. 30.

In brief compass, we suggest that
at this stage in the evolution of the law, both in Canada and abroad, the Anns
analysis is best understood as follows. At the first stage of the Anns test,
two questions arise: (1) was the harm that occurred the reasonably foreseeable
consequence of the defendant’s act? and (2) are there reasons, notwithstanding
the proximity between the parties established in the first part of this test,
that tort liability should not be recognized here?  The proximity analysis
involved at the first stage of the Anns test focuses on factors arising from
the relationship between the plaintiff and the defendant. These factors include
questions of policy, in the broad sense of that word. If foreseeability and
proximity are established at the first stage, a prima facie duty of care
arises. At the second stage of the Anns test, the question still remains
whether there are residual policy considerations outside the relationship of
the parties that may negative the imposition of a duty of care. It may be, as
the Privy Council suggest in Yuen Kun Yeu, that such consideration will
not often prevail. However, we think it useful expressly to ask, before
imposing a new duty of care, whether despite foreseeability and proximity of
relationship, there are other policy reasons why the duty should not be
imposed.

[46]        
The two-stage Anns test needs only be considered in novel
situations. It is only when a case does not clearly fall within a relationship
previously recognized as giving rise to a duty of care that it is necessary to
apply both steps of the Anns test: Childs v. Desormeaux, 2006
SCC 18, [2006] 1 S.C.R. 643.

[47]        
As noted by Justice Greenberg in Driskell, no Canadian court has
made a finding of negligence against a prosecutor for the conduct of a
prosecution. There are several decisions where courts have held that no claim
in negligence lies against a prosecutor: German v. Major, [1985] 20
D.L.R. (4th) 703, 62 A.R. 2 (C.A.); Munro; Thompson v. Ontario (1998),
113 O.A.C. 82, 39 W.C.B. (2d) 540; Kleysen v. Canada (Attorney General),
2001 MBQB 205, 159 Man.R. (2d) 17; Gilbert v. Gilkinson (2005), 205
O.A.C.188; and Miguna v. Ontario (Attorney General), 2005 O.A.C. 257,
262 D.L.R. (4th) 222 [Miguna]. In Miguna, the court said at para. 11:

Thus there exists a narrow
exception to the Crown’s immunity from suit for prosecutorial misconduct in cases
where “the prosecutor acts maliciously in fraud of his duties with the result
that he causes damage to the victim”. Whether that narrow exception is confined
to the tort known as “malicious prosecution” is not clear from the authorities.
But one thing is clear: however the claim is framed, the Crown’s conduct must
rise to the level of malice. Malice is defined for these purposes as “a
deliberate and improper use of the office of the Attorney General or Crown
Attorney, a use inconsistent with the status of ‘minister of justice’” and one
in which the defendant “perpetrated a fraud on the process of criminal justice
and in doing so has perverted or abused his office and the process of criminal
justice”: Nelles, at 193-194. No action lies against a Crown Attorney for
prosecutorial misconduct that sounds in negligence.

[48]        
None of the above cases are binding on me. As discussed at paras. 26-31,
there are several cases that have refused to strike such claims, suggesting instead
that the question should not be resolved absent the benefit of a full factual
record. On this application, the plaintiff concedes that a full factual record
is not necessary and the question can be answered on the basis of the pleading.

[49]        
Turning to the first stage of the Anns analysis, the question is does
the relationship between the plaintiff and a prosecutor disclose sufficient
foreseeability and proximity to establish a prima facie duty of care. The
first element of such relationship is foreseeability. The requirement of foreseeability
poses no barrier to finding a duty of care in this case. A prosecutor can readily
foresee that carelessness on his part might likely damage an accused.

[50]        
Foreseeability alone is not sufficient to establish the required
relationship. To impose a duty of care “there must also be a close and direct
relationship of proximity or neighbourhood”: Cooper at para. 22. A
proximity inquiry is concerned with whether the case discloses factors that show
that the relationship between the parties was sufficiently close to give rise
to a legal duty of care and whether the relationship between the alleged
wrongdoer and victim is one where the imposition of legal liability for the
wrongdoer’s action is appropriate.

[51]        
In Hill v. Hamilton-Wentworth Regional Police Services Board,
2007 SCC 41, [2007] 3 S.C.R. 129, McLachlin C.J.C. described the proximity
analysis at paras. 24-25:

24        Generally speaking, the proximity analysis involves
examining the relationship at issue, considering factors such as expectations,
representations, reliance and property or other interests involved: Cooper,
at para. 34. Different relationships raise different considerations.
"The factors which may satisfy the requirement of proximity are diverse
and depend on the circumstances of the case. One searches in vain for a single
unifying characteristic": Cooper, at para. 35. No single rule,
factor or definitive list of factors can be applied in every case.
"Proximity may be usefully viewed, not so much as a test in itself, but as
a broad concept which is capable of subsuming different categories of cases
involving different factors" (Canadian National Railway Co. v. Norsk
Pacific Steamship Co., [1992] 1 S.C.R. 1021, at p. 1151, cited in Cooper,
at para. 35).

25        Proximity may be seen
as providing an umbrella covering types of relationships where a duty of care
has been found by the courts. The vast number of negligence cases proceed on
the basis of a type of relationship previously recognized as giving rise to a
duty of care. The duty of care of the motorist to other users of the highway;
the duty of care of the doctor to his patient; the duty of care of the
solicitor to her client — these are but a few of the relationships where
sufficient proximity to give rise to a prima facie duty of care is recognized,
provided foreseeability is established. The categories of relationships
characterized by sufficient proximity to attract legal liability are not
closed, however. From time to time, claims are made that relationships hitherto
unconsidered by courts support a duty of care giving rise to legal liability.
When such cases arise, the courts must consider whether the claim for
sufficient proximity is established. If it is, and the prima facie duty
is not negated for policy reasons at the second stage of the Anns test,
the new [page148] category will thereafter be recognized as capable of giving
rise to a duty of care and legal liability. The result is a concept of
liability for negligence which provides a large measure of certainty, through
settled categories of liability — attracting relationships, while permitting
expansion to meet new circumstances and evolving conceptions of justice.

[52]        
In Hill, the issue was whether police could be held liable in
negligence for their conduct during the course of an investigation, a situation
not far removed from that in the case at bar. The court discussed whether there
was sufficient proximity between a police officer and a suspect at paras. 29-45
and concluded that the relationship was close enough to support a prima facie
duty of care.

[53]        
Many of those same factors arise in this case. The relationship between
a prosecutor and an accused is personal, close and direct. The accused has a
critical personal interest in the conduct of the prosecution. His freedom and
reputation are at stake. The personal interest of the accused in the conduct of
the prosecution is enhanced by a public interest. Recognition of the
availability of an action for negligent prosecution may assist in responding to
failures of the justice system, such as wrongful convictions. A duty of care by
prosecutors to accused persons is consistent with the spirit of and values
underlying the Charter, with its emphasis on liberty and fair process.

[54]        
I find that the relationship between a prosecutor and a particular accused
is close enough to support a prima facie duty of care.

[55]        
The second stage of the Anns test asks whether there are broader
policy reasons for declining to recognize a duty of care even though there is
sufficient foreseeability and proximity of relationship to establish a prima
facie duty of care. It is at this stage of the analysis that the question
of Crown immunity arises.

[56]        
The policy considerations negating a duty of care form the foundation of
the court’s reasoning in Nelles, Proulx and Miazga. As
noted in Proulx, prosecutors are vested with extensive discretion and
decision-making authority and the courts should be very slow indeed to second
guess a prosecutor’s judgment calls when assessing Crown liability for
prosecutorial misconduct.

[57]        
Those decisions recognized that there is a credible case for complete
prosecutorial immunity, but determined that on balance, public policy mandated
an exception in those cases where the prosecutor’s conduct rose to the level of
malice. Only in circumstances where a prosecutor has so perverted or abused his
office in the process of criminal justice should an action lie.

[58]        
I find that the policy considerations enunciated in Nelles, Proulx
and Miazga negate the prima facie duty of care that might
otherwise be owed by prosecutors to accused persons. To allow such claims would
upset the balance established in those cases between Crown immunity and Crown liability.

[59]        
Although the first stage of the Anns test is met, due to the
policy considerations stated the second stage is not. There is therefore no
duty of care owed by a prosecutor to an accused person and thus there can be no
claim in negligence.

[60]        
I find that it is plain and obvious that the claim in negligence has no
reasonable prospect of success. In regard to remedy, having reached the
conclusion that the claim in negligence is without legal foundation regardless
of how it is pleaded, I order the negligence claim against the Province dismissed.

G. The Charter
Claim

[61]        
Section 24(1) of the Charter authorizes the court to grant such
remedies to individuals for infringement of Charter rights as it
“considers appropriate and just in the circumstances”. In Ward, the
Supreme Court of Canada undertook a comprehensive analysis of the object of
damages for Charter breaches and the considerations that guide such
awards.

[62]        
The court noted that damages under the Charter are not private
law damages but the distinct remedy of constitutional damages. Underlying
policy considerations that are engaged when awarding private law damages
against state actors may be relevant when awarding public law damages directly
against the state: Ward, at para. 22.

[63]        
For Charter damages to be awarded they must further the general
object of the Charter. The three interrelated functions that damages may
serve are compensation, vindication and deterrence. Compensation recognizes
that breach of an individual’s Charter rights may cause personal loss. Vindication
recognizes that Charter rights must be maintained, while deterrence
recognizes that damages may serve to deter further Charter breaches: Ward,
at para. 25.

[64]        
Even in circumstances in which a claimant establishes that damages are
functionally justified, the state may establish that other considerations
render s. 24(1) damages inappropriate or unjust. The existence of a
potential claim in tort does not bar a claimant from obtaining Charter
damages, as tort law and the Charter are distinct legal avenues. However,
a concurrent private law claim will bar Charter damages if the result
would be double compensation: Ward, at para. 36.

[65]        
In Ward, the court recognized that the appropriateness of
s. 24(1) damages could in certain circumstances be negated on grounds of
effective governance. At paras. 42-43, it said as follows:

[42]  State conduct pursuant to a valid statute
may not be the only situation in which the state might seek to show that
s. 24(1) damages would deter state agents from doing what is required for
effective governance, although no others have been established in this case. It
may be that in the future other situations may be recognized where the
appropriateness of s. 24(1) damages could be negated on grounds of
effective governance.

[43]  Such concerns
may find expression, as the law in this area matures, in various defences to
s. 24(1) claims. Mackin established a defence of immunity for state
action under valid statutes subsequently declared invalid, unless the state
conduct is "clearly wrong, in bad faith or an abuse of power" (para. 78).
If and when other concerns under the rubric of effective governance emerge,
these may be expected to give rise to analogous public law defences. By analogy
to Mackin and the private law, where the state establishes that s. 24(1)
damages raise governance concerns, it would seem a minimum threshold, such as
clear disregard for the claimant’s Charter rights, may be appropriate.
Different situations may call for different thresholds, as is the case at
private law. Malicious prosecution, for example, requires that
"malice" be proven because of the highly discretionary and
quasi-judicial role of prosecutors (Miazga v. Kvello Estate, 2009 SCC
51, [2009] 3 S.C.R. 339), while negligent police investigation, which does not
involve the same quasi-judicial decisions as to guilt or innocence or the
evaluation of evidence according to legal standards, contemplates the lower
"negligence" standard (Hill v. Hamilton-Wentworth Regional Police
Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129). When appropriate,
private law thresholds and defences may offer guidance in determining whether
s. 24(1) damages would be "appropriate and just". While the
threshold for liability under the Charter must be distinct and
autonomous from that developed under private law, the existing causes of action
against state actors embody a certain amount of "practical wisdom"
concerning the type of situation in which it is or is not appropriate to make
an award of damages against the state. Similarly, it may be necessary for the
court to consider the procedural requirements of alternative remedies.
Procedural requirements associated with existing remedies are crafted to
achieve a proper balance between public and private interests, and the
underlying policy considerations of these requirements should not be negated by
recourse to s. 24(1) of the Charter. As stated earlier, s. 24(1)
operates concurrently with, and does not replace, the general law. These are
complex matters which have not been explored on this appeal. I therefore leave
the exact parameters of future defences to future cases.

[66]        
On this application, the Province relies strongly on those passages. It
submits that the policy reasons which dictate that prosecutors can only be
liable for private law damages when they have acted with malice apply with
equal force to claims against prosecutors for Charter damages: McGillivary
v. New Brunswick (1994), 149 N.B.R. (2d) 311, 116 D.L.R. (4th) 104 (C.A.); Forest
v. Ontario (Provincial Police), 2012 ONSC 429 (Div. Crt.).

[67]        
The Province submits that for the policy reasons set out in Nelles,
Charter damages are only available when a prosecutor has acted with
malice. It submits that Crown immunity would lack any force if it could be
avoided by simply recasting a private law claim into a claim for Charter
damages. There would be no purpose served by the immunity if it barred a tort
claim for negligence, but not a claim for damages under the Charter.

[68]        
Assuming, without deciding that the Province’s analysis is correct, the
question arises as to whether there is any remedy available to it at this point
in time in this proceeding. On this application the Province submits that the
plaintiff’s allegation of Charter breaches should be struck. Given Lamer
J.’s comments in Nelles about Charter damages, the
Province does not suggest that an allegation of a malicious breach of Charter
rights would not survive a motion to strike.

[69]        
The Province’s application requires an examination of the allegations in
the notice of civil claim. The Province submits that the plaintiff’s allegation
of Charter breaches do not allege malice. A close review of the
plaintiff’s pleadings suggests otherwise.

[70]        
The plaintiff’s claim for Charter damages is found in paras. 119,
122 and 123. Those allegations incorporate the conduct set out in paras. 113
to 118 of the notice of civil claim. In para. 120, the plaintiff alleges
the acts and omissions of the prosecutors described in paras. 113-118 were
done either maliciously or with knowledge that the acts and omissions were
unlawful and would probably cause injury to the plaintiff.

[71]        
While the pleading may not be drawn in the most artful manner, I find
that the Charter allegations are founded upon allegations of malicious
conduct. Given that finding, it is not appropriate to strike the paragraphs
alleging a breach of the plaintiff’s Charter rights.

[72]        
If the plaintiff intends to argue at the trial of this matter that it is
entitled to Charter damages against the Province absent a finding that
the acts of the prosecutors were done maliciously, it will have to apply for
leave to amend its pleading to make such an allegation. I am seized of any such
application.

SUMMARY

[73]        
In summary therefore, the plaintiff’s claim in negligence is dismissed. The
Province’s claim to strike paras. 119, 122, 123 and 130 is dismissed.

[74]        
Costs of the application will as between the plaintiff and the Province
be in the cause. There will be no costs for or against Canada.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice
Richard B.T. Goepel

APPENDIX

Excerpt from
Notice of Civil Claim

Crown Counsel: Negligence, Charter
Breaches, Misfeasance in Public Office, Malicious Prosecution, Abuse of Process

113.    In
the period from July 29, 1982, when the Plaintiff was charged, to March 15,
1983, when he was convicted, Luchenko and Milliken owed him a duty of care
arising from the special relationship between prosecutor and accused. During
this period, Luchenko and Milliken breached this duty of care by failing to
perform their non-discretionary routine, administrative function to make full,
frank and complete disclosure of all relevant evidence and information to the
Plaintiff or his counsel. Particulars of this breach include the failure to
disclose the materials referred to at paragraphs 50-53 and 68 above.

114.    Luchenko
and Milliken further breached the duty of care owed to the Plaintiff by failing
to bring to the attention of the jury or the judge at trial all information
bearing on the reliability of the trial complainants’ identification evidence,
including the information contained in the undisclosed materials referred to at
paragraphs 50-53 and 68 above and information relevant to the reliability of
the trial complainants’ identification that had been disclosed to the Plaintiff
but was not elicited by him at the trial.

115.    Luchenko
and Milliken further breached the duty of care to the Plaintiff by eliciting
testimony from the trial complainants on the issue of identification that was
materially inconsistent with the information contained in the undisclosed
materials referred to at paragraph 50 and information relevant to the
reliability of the trial complainants’ identification that had been disclosed
to the Plaintiff but was not elicited by him at the trial.

116.    Luchenko
further breached the duty of care owed to the Plaintiff by making statements to
the trial judge that suggested, by implication, that all of the trial complainants’
statements had been disclosed to the Plaintiff, when he knew that the true
facts were to the contrary.

117.    Luchenko
and Milliken also owed a duty of care to the Plaintiff in the period following
his conviction on March 15, 1983, as did Crown counsel who had carriage of the
Plaintiff’s various post-conviction matters. During this period, these Crown
counsel breached this duty of care by failing to make full, frank and complete
disclosure to the Plaintiff of all exculpatory or potentially exculpatory
evidence and information relating to the Plaintiff’s case. Particulars of this
breach include the failure to disclose the materials referred to at paragraphs
50-53, 68 and 84, above.

118.    Luchenko,
Milliken and Crown counsel with carriage of the Plaintiff’s various
post-conviction matters further breached the duty of care owed to the Plaintiff
by: (a) applying to dismiss the Plaintiff’s conviction and sentence appeals for
want of prosecution at an extraordinarily early stage, and doing so without
bringing to the attention of the Court of Appeal the matters set out in
paragraph 79 above; and (b) failing to bring the matters set out in paragraphs
79 and 84 above to the attention of the courts that heard the Plaintiff’s
subsequent post-trial proceedings.

119.    The
failure of Crown counsel to disclose materials and information to the Plaintiff
and to the jury and judge at trial, and to the Court of Appeal and other courts
following the trial, as described in paragraphs 113 to 118, violated his right
to receive disclosure, his right to make full answer and defence, and his right
to a fair trial, under ss. 7 and 11(d) of the Charter.

120.    Further,
the wrongful acts and omissions of Luchenko and Milliken as described in
paragraphs 113 to 118 were acts and omissions in their roles as public
officers, and in their purported exercise of their powers as public officers. These
acts and omissions were done either maliciously or with knowledge that the acts
and omissions were unlawful and would probably cause injury to the Plaintiff. The
Plaintiff claims against Luchenko and Milliken for misfeasance in public
office.

121.    Further,
the Plaintiff claims against Luchenko and Milliken for malicious prosecution. No
reasonable and probable grounds existed at the relevant times, or ever, for the
prosecution of the Plaintiff for the Sexual Assaults. Luchenko and Milliken
prosecuted the Plaintiff with an improper purpose:  namely, to bring about the
conviction of the Plaintiff notwithstanding the absence of reasonable and
probable grounds supporting his guilt, and in the face of a body of evidence
that supported his innocence, which evidence they chose to suppress. In doing
so they acted in a manner inconsistent with their roles as ministers of
justice, and with an intention to subvert or abuse the office of the Provincial
Crown and/or the process of criminal justice, and so exceeded the boundaries of
the office of the Provincial Crown.

122.    Further,
Luchenko and Milliken abused the process of the Court in acting in a manner
that failed to respect the integrity of the Court and the trial process, and
was not in accordance with principles of fundamental justice, and in so doing
Luchenko and Milliken violated the rights of the Plaintiff under ss. 7 and
11(d) of the Charter, and helped to bring about his wrongful conviction and
prolonged imprisonment.

123.    The
abuse of the process of the Court referred to in paragraph 122 occurred through
a pattern of conduct that includes the acts and omissions described in
paragraphs 104 to 118, as well as the following:

(a)      Luchenko and Milliken failed
to act in accordance with the legal and ethical duties of Crown Counsel in a
serious case involving an unrepresented and unsophisticated accused.

(b)      Luchenko and Milliken
proceeded with criminal charges against the Plaintiff notwithstanding that
there existed no substantial likelihood of conviction if disclosure were made
in accordance with the prevailing disclosure standards.

(c)      Luchenko and Milliken led
evidence before the jury at the trial regarding trial complainant
identifications of the Plaintiff notwithstanding that it was apparent that
those identifications were tainted by the tremendously unfair May 12 and July
27-28 Line-ups, and furthermore they elicited that testimony in a manner that
accentuated that unfairness.

. . .

Liability of the Defendant Provincial Crown

130.    The
Defendant Provincial Crown is liable for the acts and omissions of Luchenko and
Milliken that constituted Charter breaches, described above at paragraphs 119
and 122-23.

131.    The
Defendant Provincial Crown is vicariously liable for the acts and omissions of
Luchenko and Milliken that constituted torts, described above at paragraphs
113-18 and 120-21.