On Dec. 26, 2005, two groups of men started shooting at each other on sidewalk in Toronto. Three of combatants were shot, two innocent bystanders were injured and one innocent 15-year-old was killed. There was police investigation and criminal charges were laid against nine accused, two of whom were youths. Plaintiff was young person and he elected to be tried by judge alone. However, attorney general decided to have plaintiff’s election overridden. Notwithstanding attorney general’s direction, judge refused to change mode of trial to jury trial. Judge found that attorney general’s conduct was abuse of process. Judge admitted video surveillance evidence. Plaintiff was acquitted of charge of manslaughter. Plaintiff sued Attorney General for malicious prosecution. Attorney general brought motion to strike out amended statement of claim or dismiss action. Motion granted. As matter of private law, malicious prosecution regulated prosecutorial discretion, but as matter of public law, prosecutorial discretion was also regulated by criminal law doctrine of abuse of process. Attorney general’s decision to override plaintiff’s choice of judge alone was exercise of non-core element of prosecutorial discretion that was outside ambit of private law tort of malicious prosecution. Plaintiff argued that case against him was based on part on video surveillance evidence that judges had refused to admit in parallel cases. However, it was not unreasonable for attorney general to continue trial where video surveillance evidence was admitted. It did not logically follow from inability to use surveillance evidence in jury trials that attorney general had no reasonable prospect of conviction at trial where surveillance evidence was admitted, but was ultimately ruled unpersuasive. Attorney general did not continue prosecution knowing he had no reasonable prospect of conviction. Judge’s conclusion that evidence ultimately did not persuade her that plaintiff was involved in wrongdoing did not necessitate inference that attorney general had purpose other than carrying law into effect and that it was unreasonable for attorney general to continue prosecution. Attorney general’s failure to connect plaintiff to crime did not establish absence of reasonable prospect of conviction and did not show purpose outside of prosecution of case. Plaintiff failed to plead tenable action for malicious prosecution.
C. (G.) v. Ontario (Attorney General) (Jan. 20, 2014, Ont. S.C.J., Perell J., File No. 12-CV-449178) 240 A.C.W.S. (3d) 775.