Proulx v. Quebec (Attorney General)

Proulx v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2001-10-18
Neutral citation
2001 SCC 66
Report
[2001] 3 SCR 9
Case number
27235
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Quebec
Subjects
Torts
Notes
SCC Case Information: 27235
Decision Content
proulx v. quebec (a.g.), [2001] 3 S.C.R. 9, 2001 SCC 66
Benoît Proulx Appellant
v.
The Attorney General of Quebec Respondent
Indexed as: Proulx v. Quebec (Attorney General)
Neutral Citation: 2001 SCC 66.
File No.: 27235.
2000: December 11; 2001: October 18.
Present: McLachlin C.J. and L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for quebec
Civil liability – Malicious prosecution – Regime of immunity and extra-contractual civil liability applicable in Quebec law to Attorney General of Quebec and prosecutors -- Whether Nelles applies integrally in Quebec -- Whether facts alleged against Attorney General and prosecutor meet test set out in Nelles.
In 1986, the prosecutor determined that there were insufficient grounds to charge the appellant with the murder of his former girlfriend as there was no reliable identification evidence. The prosecution file was closed. Some five years later, in the midst of a sensational defamation claim launched by the appellant against a radio station and a retired police investigator who had worked on the file, the prosecutor was advised by the defamation case defendants of a potential new identification witness. The prosecutor added the defendant police investigator to the prosecution team, re-opened the file, and decided to prosecute the appellant on a first degree murder charge. At trial, the jury found the appellant guilty. On appeal, the Court of Appeal overturned the conviction with strong criticism of the lack of credible evidence. Following his acquittal, the appellant brought an action for damages for malicious prosecution against the Attorney General of Quebec. The Superior Court found the Attorney General liable and entered judgment against the Attorney General for over a million dollars in damages. A majority of the Court of Appeal allowed the Attorney General’s appeal and dismissed the action. The question in front of this Court is whether this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted.
Held (L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Iacobucci, Major and Binnie JJ.: Prosecutors are vested with extensive discretion and decision-making authority to carry out their functions and courts should be very slow to second-guess a prosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct. The Department of the Attorney General and its prosecutors, however, are not above the law and this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted. Nelles sets out four requirements that must be established on a balance of probabilities in an action in damages based on prosecutorial misconduct and those requirements are satisfied here. The record reveals that: (1) the respondent initiated the prosecution; (2) the prosecution resulted in the appellant’s acquittal; (3) the Crown prosecutor did not have reasonable and probable cause upon which to found the charges brought against the appellant; and (4) the prosecution was motivated by an improper purpose.
Clearly a prosecutor need not be convinced beyond a reasonable doubt of an accused person’s guilt before bringing charges, but there must be sufficient evidence to ground a reasonable belief that a conviction could properly be obtained. In this case, it must have been clear to the prosecutor in 1991, when he authorized the charge of first degree murder, that the evidence could not properly have resulted in a conviction. In particular, the eyewitness identification of the appellant, which was the primary basis for reopening the investigation and prosecuting him, was flagrantly inadequate and the surreptitiously recorded conversation between the appellant and the victim’s father was likely inadmissible evidence. Even if admissible, that conversation lacked probative value. The charges brought against the appellant were grounded in mere suspicion and hypotheses and were not based on reasonable and probable cause. This, by itself, is not sufficient to ground the appellant’s lawsuit.
A suit for malicious prosecution 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 fuelled by an “improper purpose”. Here, the improper purpose arose because of the mixing of a private interest (defence of the defamation suit) and a public interest (the prosecution). The trial judge so found and there was no valid basis for the Court of Appeal to interfere with this finding.
The prosecutor’s decision to recruit the retired police investigator to assist in the resurrected prosecution file, notwithstanding his status as a defendant in the appellant’s well-publicized million dollar defamation suit, is further evidence of malice in the sense of the prosecutor’s apparent indifference to the improper mixing of public and private business.
The prosecutor lent his office to support a defence strategy in the defamation suit and, in so doing, was compromised by the retired police investigator’s apparent manipulation of the evidence and the irregularities that took place during the re-opened investigation. There was a flagrant disregard for the rights of the appellant, fuelled by motives that were clearly improper. While Nelles established a generous boundary within which prosecutors acting in good faith have immunity despite bad decisions, the mixed motives of the prosecutor in this case carried him across that boundary and amounted to malice.
Per L’Heureux-Dubé, Gonthier and Bastarache JJ. (dissenting): In Quebec, the extra-contractual civil liability of the Attorney General of Quebec and of prosecutors for malicious prosecution is part of the public law. The public law of Quebec on this point is governed by the public common law. The principles laid down in Nelles are part of the public law of Quebec and those principles state that the Attorney General and prosecutors enjoy, not absolute immunity in respect of the tort of malicious prosecution, but relative immunity. Nelles applies integrally in Quebec and, consequently, there is no need to apply the notions of fault in Quebec’s private law in order to decide that liability; rather, the public law test stated in Nelles should be applied. The necessary threshold for lifting the immunity of prosecutors is high. In this case, the facts alleged against the Attorney General and the prosecutor do not meet the last two criteria in Nelles. The evidence in the record establishes that at the time the prosecution was initiated the prosecutor could reasonably have believed that he had reasonable and probable grounds to charge the appellant and that he did not act with malice.
The role of the Attorney General is not that of the judge, nor to be objectively satisfied, beyond a reasonable doubt, of the guilt of an accused, or even to ensure, in that respect, that the evidence he or she has will necessarily be sufficient to guarantee a guilty verdict. In subjective terms, he or she must believe in good faith in the guilt of the accused, and that certainty must be based on reasonable and probable grounds. From the record, it is apparent that the prosecutor had a sincere belief in the appellant’s guilt. On the question of the objective analysis of the reasonableness of that belief, it must be determined whether a prudent and cautious person would have believed that the appellant was probably guilty of the crime. In applying that test, one must have regard to the circumstances of the case. In this case, the charge was laid on the basis of entirely circumstantial evidence. Even though none of the facts disclosed by the investigation at that time, taken in isolation, was sufficient to establish the guilt of the accused, that evidence, when added up and taken in its entirety, could reasonably have justified a finding of guilt.
In particular, at the time the criminal charge was laid, the prosecutor had reason to believe that the conversation between the victim’s father and the appellant was admissible. The Court of Appeal acknowledged that, when the trial judge made his decision to admit the conversation, there were particular circumstances that justified the conclusion he had reached. In this particular context, we cannot require more of the prosecutor, at the time he laid the charge, than was required of the trial judge at the time his decision was made. On the question of the identification of the appellant, this was merely one element in the body of circumstantial evidence on which the charge was based. The new witness was not an eyewitness to the murder, and his testimony was not intended to identify a murderer, but rather simply to add an additional element to the body of evidence that was already available to the prosecutor. In addition, the rules set out in the case law regarding identification are very flexible. Even an “irregular” identification can be legally admissible in evidence. The prosecutor therefore acted in conformity with the state of the law regarding identification. Regardless of its probative value, the identification in this instance was not illegal. It was up to the jury to assess that identification evidence, and it was up to the judge to caution the jury regarding its probative value. Even if the identification related solely to the appellant’s eyes and beard, the prosecutor is neither judge nor jury, and he had the right, and even the duty, to take that evidence to the justice system, provided that he himself believed that it was valid. There is nothing in the record to suggest that this was not the case and that he acted in bad faith.
In light of the evidence in the prosecutor’s possession at the time he authorized the laying of the charge of first degree murder against the appellant, when it is examined in its context in light of the nature of the evidence and the law at the time, the prosecutor could plausibly have believed that he had sufficient reasonable and probable grounds to charge the appellant. Other important elements suggest that there were sufficient grounds, such as the fact that the judge at the preliminary inquiry committed the appellant for trial. One must assume that the judge was cognizant of the state of the law. If he considered the evidence offered by the prosecutor to be sufficient to justify committal for trial, the prosecutor cannot be criticized for reaching the same conclusion. Moreover, the trial judge did not direct a verdict of acquittal and the appellant was found guilty by the jury at the end of his criminal trial.
To demonstrate malice, the appellant must show on a preponderance of evidence that there was an improper purpose and that the powers of the prosecutor were perverted to that end. This standard, which must be applied strictly, is a high and clear one, in that it calls for proof of the subjective intent of the prosecutor to act out of malice or with an improper purpose. In this case, the mere fact that he authorized the laying of a criminal charge which resulted in a verdict of acquittal cannot support the conclusion that there was malice on the part of the prosecutor. It would be contrary to the standard of conduct set out in Nelles and it would place an obligation on the prosecutor in respect of the result. A standard of that nature would amount to denying the prosecutor any immunity. The existence of reasonable and probable grounds for laying the charge rules out the possibility that the prosecutor was acting out of any “improper purpose” on this ground. The evidence in the record establishes that it was the appearance of a new witness that influenced the conduct of the prosecutor, and not the publicity surrounding the civil defamation action. The prosecutor had nothing to do with that action. It was only at the request of his superiors that he reopened the case. Nor can the prosecutor be criticized for the acts of an officer who was at that time retired from the police, when the prosecutor was unaware of those acts, for which the investigator had received no mandate from the prosecutor. It is logical that the Attorney General, through the police, subsequently obtained that investigator’s services to pursue the investigation, since he was the one who had conducted the entire investigation in this case from the beginning. Finally, there is no indication of malice on the part of the prosecutor in the prosecutor’s use of the conversation between the victim’s father and the appellant in his argument at trial.
In short, there is no evidence to show that the prosecutor acted for personal purposes, out of vengeance or ill-will toward the appellant, in bad faith or beyond his mandate for improper purposes, or that he committed a fraud on the law. A careful examination of the facts in evidence in the civil action shows rather that the prosecutor acted within the bounds of his functions as a public officer, by prosecuting an individual whom he believed, in good faith, to be guilty of a crime.
Cases Cited
By Iacobucci and Binnie JJ.
Followed: Nelles v. Ontario, [1989] 2 S.C.R. 170; referred to: R. v. Dwyer (1924), 18 Cr. App. R. 145; R. v. Swanston (1982), 65 C.C.C. (2d) 453; Mezzo v. The Queen, [1986] 1 S.C.R. 802; Marcoux v. The Queen, [1976] 1 S.C.R. 763; R. v. Duarte, [1990] 1 S.C.R. 30; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Charest (1990), 28 Q.A.C. 258; R. v. S. (F.) (2000), 47 O.R. (3d) 349; R. v. Campbell, [1999] 1 S.C.R. 565.
By L’Heureux-Dubé J. (dissenting)
Nelles v. Ontario, [1989] 2 S.C.R. 170; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Senez v. Montreal Real Estate Board, [1980] 2 S.C.R. 555; Attorney General of Quebec v. Labrecque, [1980] 2 S.C.R. 1057; 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; The King v. Cliche, [1935] S.C.R. 561; McArthur v. The King, [1943] Ex. C.R. 77; The King v. Anthony, [1946] S.C.R. 569; R. v. Canadian Broadcasting Corp., [1958] O.R. 55; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551; Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015; Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; Sellars v. The Queen, [1980] 1 S.C.R. 527; Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000 SCC 60; Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, 2000 SCC 12; Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145; Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445; Just v. British Columbia, [1989] 2 S.C.R. 1228; Rothfield v. Manolakos, [1989] 2 S.C.R. 1259; Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181; Québec (Procureur général) v. Deniso LeBel Inc., [1996] R.J.Q. 1821; Boucher v. The Queen, [1955] S.C.R. 16; Imbler v. Pachtman, 424 U.S. 409 (1976); Yaselli v. Goff, 12 F.2d 396 (1926); Reference re Truscott, [1967] S.C.R. 309; R. v. Kaysaywaysemat (1992), 10 C.R. (4th) 317; R. v. Bowles (1985), 21 C.C.C. (3d) 540; Genest v. La Reine, [1990] R.J.Q. 2387; R. v. White, [1998] 2 S.C.R. 72; R. v. Ménard, [1998] 2 S.C.R. 109; Hicks v. Faulkner (1878), 8 Q.B.D. 167; R. v. Yebes, [1987] 2 S.C.R. 168; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Ferianz (1962), 37 C.R. 37; R. v. Ruddick (1980), 57 C.C.C. (2d) 421; R. v. Duguay, [1989] 1 S.C.R. 93, aff’g (1985), 18 C.C.C. (3d) 289; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Sobotiak (1994), 155 A.R. 16; Comeau v. La Reine, [1992] R.J.Q. 339; Amadzadegan-Shamirzadi v. Polak, [1991] R.J.Q. 1839; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Dwyer (1924), 18 Cr. App. R. 145; R. v. Swanston (1982), 65 C.C.C. (2d) 453; R. v. Langille (1990), 59 C.C.C. (3d) 544; Mezzo v. The Queen, [1986] 1 S.C.R. 802; Marcoux v. The Queen, [1976] 1 S.C.R. 763; R. v. Gagnon (2000), 136 O.A.C. 116; R. v. Tat (1997), 35 O.R. (3d) 641; United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Charemski, [1998] 1 S.C.R. 679; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; Boudreault v. Barrett (1998), 219 A.R. 67; Thompson v. Ontario (1998), 113 O.A.C. 82; Reynen v. Canada (1995), 184 N.R. 350; Milgaard v. Kujawa (1994), 118 D.L.R. (4th) 653; Prete v. Ontario (1993), 16 O.R. (3d) 161; Deline v. Kidd, [2001] B.C.J. No. 645 (QL), 2001 BCSC 491; Monette v. Owens (2000), 144 Man. R. (2d) 55; Charemski v. Ontario, [2000] O.J. No. 5231 (QL); Fiset v. Toronto (City) Police Services Board, [1999] O.J. No. 3731 (QL); Perron v. Québec (Procureur général), [2000] Q.J. No. 4700 (QL).
Statutes and Regulations Cited
Act respecting Attorney General’s prosecutors, R.S.Q., c. S-35.
Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .
Civil Code of Lower Canada, art. 356.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 300, 1376.
Code of Civil Procedure, R.S.Q., c. C-25, art. 94.
Criminal Code , R.S.C. 1985, c. C-46 .
Authors Cited
Archambault, Jean-Denis. “Les sources juridiques de la responsabilité extra-contractuelle de la Couronne du Québec: variations de droit public” (1992), 52 R. du B. 515.
Archambault, Jean-Denis. “Les sources juridiques des immunités civiles et de la responsabilité extracontractuelle du procureur général à raison d’accusations pénales erronées: le mixte et le mêlé (Québec c. Proulx)” (1999), 59 R. du B. 59.
Butt, David. “Malicious Prosecution: Nelles v. Ontario: rejoinder – John Sopinka -- [1994] 74 Can. Bar Rev. 366” (1996), 75 Can. Bar Rev. 335.
Canada. Law Reform Commission. Pretrial Eyewitness Identification Procedures. By Neil Brooks. Ottawa: The Commission, 1983.
Côté, Pierre-André. “La détermination du domaine du droit civil en matière de responsabilité civile de l’Administration québécoise -- Commentaire de l’arrêt Laurentide Motels” (1994), 28 R.J.T. 411.
Delisle, Ronald Joseph. Evidence: Principles and Problems, 4th ed. Scarborough, Ont.: Carswell, 1996.
Garant, Patrice. Droit administratif, vol. 1, 4e éd. Cowansville, Qué.: Yvon Blais, 1996.
Garant, Patrice. “La responsabilité civile de la puissance publique: du clair obscur au nébuleux” (1991), 32 C. de D. 745.
Giroux, Pierre, et Stéphane Rochette. “La mauvaise foi et la responsabilité de l’État”. Dans Service de la formation permanente du Barreau du Québec, Développements récents en droit administratif et constitutionnel, vol. 119. Cowansville, Qué.: Yvon Blais, 1999, 117.
Hogg, Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Immarigeon, Henriette. La responsabilité extra-contractuelle de la Couronne au Canada. Montréal: Wilson et Lafleur, 1965.
Klar, Lewis N. “Recent Developments in Canadian Law: Tort Law” (1991), 23 Ottawa L. Rev. 177.
Lordon, Paul. Crown Law. Toronto: Butterworths, 1991.
Pigeon, Louis-Philippe. Drafting and Interpreting Legislation. Toronto: Carswell, 1988.
Robinette, J. J. “Circumstantial Evidence”, [1955] Spec. Lect. L.S.U.C. 307.
Royer, Jean-Claude. La preuve civile, 2e éd. Cowansville, Qué.: Yvon Blais, 1995.
Sheppard, Anthony F. Evidence, 3rd ed. Toronto: Carswell, 1988.
Sopinka, John. “Malicious Prosecution: Invasion of Charter Interests: Remedies: Nelles v. Ontario: R. v. Jednynack: R. v. Simpson” (1995), 74 Can. Bar Rev. 366.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Walton, F. P. “The Legal System of Quebec” (1913), 33 Can. L.T. 280.
APPEAL from a judgment of the Quebec Court of Appeal, [1999] R.J.Q. 398, [1999] R.R.A. 56, [1999] Q.J. No. 373 (QL), setting aside judgments of the Superior Court, [1997] R.J.Q. 2509, [1997] R.R.A. 1118, [1997] Q.J. No. 2710 (QL); [1997] R.J.Q. 2516, [1997] Q.J. No. 2711 (QL). Appeal allowed with costs, L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting.
Christian Trépanier and Lawrence Corriveau, Q.C., for the appellant.
Claude Gagnon, Alain Loubier and Carole Soucy, for the respondent.
The judgment of McLachlin C.J. and Iacobucci, Major and Binnie JJ. was delivered by
IACOBUCCI AND BINNIE JJ.--
I. Introduction
1 In 1986, the prosecutor determined that there were insufficient grounds to charge the appellant with the murder of his former girlfriend, France Alain. There was no doubt that a murder had occurred. It was the prosecutor’s opinion, however, that there was no reliable identification evidence against the appellant or anyone else. The prosecution file was closed.
2 Some five years later, Radio Station CHRC broadcast sensational allegations linking the appellant to the murder, and the appellant retaliated in January 1991 with an action for defamation claiming damages of a million dollars against André Arthur, a journalist of the radio station, and John Tardif, the then retired police investigator who had worked on the closed file. The appellant had previously worked as a news reader at CHRC.
3 At this point, more than eight years after the murder, a journalist at CHRC (the appellant claims it was Arthur himself) contacted Tardif about a new witness who allegedly could supply the necessary eyewitness identification. The witness’s name was Paul-Henri Paquet. According to Paquet’s sworn declaration, [translation] “all the commotion” around the case, including the news reports involving Tardif and Arthur, is what convinced him to come forward. Subsequently, declared Paquet, he saw the appellant’s picture in a newspaper article about the appellant’s defamation suit against Tardif and Arthur and was suddenly struck by the eyes of the appellant whom he allegedly recognized as the man he encountered on the night of the murder. Paquet declared:
[translation] So at 8 a.m. I decided to go immediately to radio station CHRC to leave a message for Mr. Arthur and/or Mr. Tardif that I would probably have something to add to the France Alain case. (I told an announcer named Mr. Thibeault that the night of the murder someone had said to me “Don’t go see it, it’s not a nice thing to see.”)
Paquet also swore that a few days later (evidently through the intervention of someone at CHRC), he met with Tardif [translation] “who had taken charge of the case”.
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. As stated by Lamer J. (as he then was) in Nelles, at p. 195:
. . . public confidence in the office of a public prosecutor suffers greatly when the person who is in a position of knowledge in respect of the constitutional and legal impact of his conduct is shielded from civil liability when he abuses the process through a malicious prosecution.
The allegations in this case address one of those exceptional circumstances where it has been established on a balance of probabilities that the prosecutorial office has been found to have been used deliberately for purposes that we believe were improper and inconsistent with the traditional prosecutorial function (Nelles, supra, at pp. 196-97). Civil liability for malicious prosecution is therefore an appropriate remedy.
5 With all due respect to L’Heureux-Dubé J.’s statement of the application of “public” common law principles to actions brought in Quebec against the Crown for malicious prosecution, we prefer the analysis of LeBel J.A. (as he then was) in the Quebec Court of Appeal ([1999] R.J.Q. 398), which delineated the respective roles of public law and private law. We think, as well, that his approach is more consonant with the approach to this issue taken in common law jurisdictions. However, nothing turns on this doctrinal difference in the present appeal. Our disagreement with our colleague turns on the facts of this particular case.
6 It is important to note that when the Quebec Court of Appeal overturned the appellant’s conviction on the basis that no properly instructed jury could reasonably have found him guilty beyond a reasonable doubt, it not only criticized the trial judge for palpable errors but also pointed out the speculative and hypothetical nature of the theory which constituted the basis for initiating proceedings against the appellant: [1992] R.J.Q. 2047, 76 C.C.C. (3d) 316. In a concluding statement, the Court of Appeal observed that (at p. 383 C.C.C.):
[translation] . . . the jury’s verdict rests in part on evidence that the judge should have excluded. We are also of the view that the jury ended up at its verdict on the basis of inadequate instructions, in particular on the visual identification evidence and the question of motive. Finally, we consider that the identification evidence is so lacking in probative value that it would be unreasonable, even taking into account the other evidence called by the Crown, to find beyond a reasonable doubt that Mr. Paquet saw the appellant near the scene of the crime on the evening of October 25, 1982.
7 Like the trial judge and LeBel J.A., dissenting in the result in the Quebec Court of Appeal, we find that the record in this appeal suffices to satisfy the Nelles test because it reveals that: (1) the Crown prosecutor did not have reasonable and probable cause upon which to found the charges brought against the appellant, and (2) the prosecution was motivated by an improper purpose which in law constitutes malicious conduct and intentional fault. Thus, for the reasons that follow, we are of the view that this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted. We would therefore allow this appeal.
II. Analysis
8 The starting point in any criminal prosecution is the presumption of innocence. The prosecutor must assess, in good faith and without any motive but the furtherance of the administration of justice, whether the presumption of innocence can be rebutted in a court of law. This is a practical decision based on the prosecutor’s experience and knowledge, and on his or her assessment of all the potentially relevant evidence. A failed prosecution does not without more – much more – give rise to a viable claim for prosecutorial wrongdoing.
9 As we have noted above, Nelles, set out four requirements that must be established on a balance of probabilities by the claimant in an action in damages based on prosecutorial misconduct in order to avoid the Crown’s relative immunity against such suits. In this appeal, the first two requirements, namely that the respondent initiated the prosecution, and that the prosecution resulted in the appellant's acquittal, are clearly satisfied. Our disagreement with our colleague relates to the additional two requirements, namely that the respondent lacked reasonable and probable grounds to prosecute the appellant, and that the prosecution was tainted with an improper motive.
A. Absence of Reasonable and Probable Cause
10 The existence of reasonable and probable grounds was defined for present purposes in Nelles at p. 193 as follows:
This test contains both a subjective and objective element. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause is a matter for the judge to decide as opposed to the jury.
11 The best evidence that the prosecutor lacked reasonable and probable grounds prior to 1991 is the prosecutor’s own admission in the stay application that there was no case to justify the laying of charges at that time. As our colleague states at para. 163: “He was aware of his role, his responsibilities and the law, and he closed the file”. The analysis, then, turns to the events of 1991, and to a consideration of what changed the prosecutor’s decision and resulted in the charge of first degree murder being laid against the appellant on March 20, 1991. Two pieces of evidence appear to have been critical to that reversal. They constitute the bulk of the case against the appellant. Firstly, the eyewitness “identification” by Paquet. Secondly, the prosecutor’s re-evaluation, in light of Paquet’s evidence, of the conversation between the appellant and the victim’s father which took place on May 30, 1983 and which was surreptitiously recorded by the police. We will deal with these items separately.
(1) The Evidence of Identification
12 The critical evidence, from the Crown’s perspective, was the alleged identification of the appellant by the witness, Paquet. However, the process through which this identification was carried out was extremely flawed and unusual. As mentioned, Paquet came forward through the intervention of the defendants in the defamation action more than eight years after the murder. He claimed to have seen the probable perpetrator of France Alain's murder just minutes after she was shot. Although Paquet allegedly reported the encounter to three other people within hours of the murder, it is not explained why he did not go to the police eight years earlier. Indeed, even in 1991, rather than going straight to the police, Paquet went to the CHRC radio station, having been made aware of the well-publicized defamation action brought by the appellant. Paquet made this visit after seeing a photograph of the appellant featured in a newspaper article on February 9, 1991, about the appellant’s initial allegation of defamation. (The appellant began a second action in defamation after his conviction was reversed by the Quebec Court of Appeal on August 20, 1992, but this second action came too late to have any relevance to the present proceedings.) The appellant says it was Arthur himself who initially sent Paquet not to the police but to speak to Tardif.
13 We wish to make it clear that we impugn neither the motives nor the trustworthiness of Paquet. The issue, simply, is the very limited nature of what he could honestly say about his encounter with a [translation] “bearded man” on the night in question. Such an encounter may have happened, but what if anything did it have to do with the appellant?
14 Paquet told Tardif that he had identified the appellant’s eyes from the recently published newspaper photo, eight years after he supposedly saw him during a momentary encounter at night. Tardif then showed Paquet a photo of the appellant, but covered all but the appellant’s eyes. Paquet affirmed that these were the eyes of his “bearded man”, whom he had seen on the night of the murder. However, when the full face of the appellant was revealed, Paquet candidly stated that this was not the man he had seen. This was Paquet’s evidence on this point:
[translation] Yes, at some point we were at the scene of the incident that I described this morning, earlier, and then at some point, he [Tardif] had me get into his automobile. Then he said to me: “I’ll show you a photograph of Benoît Proulx.” Then he said: “You tell me whether or not that was who you saw.”
Then I immediately told him, I said: “Do you want to help me out, we can do it this way.” I then said: “Begin by showing me the eyes, cover everything, and then begin by showing me the eyes and then afterwards you’ll pull out your photograph.”
He had a white envelope. It was quite a large photograph. Then he put -- he arranged things so as to show me just the eyes, and I then said: “It’s my guy’s eyes, again, there, it’s my bearded guy’s eyes.”
So, when he showed me the photograph, he had a new permanent, I can say and it was black, a big beard and it's completely different; they weren't the same glasses. I said: “That’s fine but it’s not my guy.”
He then had a look like he wanted to say: “Well, listen, it’s him.”
Well, I said, “No, it’s not the guy I saw”, after I had recognized only the eyes from the photograph and I didn’t want to agree, accept it. . . . [Emphasis added.]
15 Tardif did not disclose the existence of Paquet’s evidence to the police for several weeks thereafter. The prosecutor was then made aware of Paquet’s existence and of Tardif’s attempt to implicate the appellant.
16 Once Paquet’s existence had been disclosed to the authorities, the Crown prosecutor met with Paquet in the presence of Tardif, and Paquet was shown a series of eight more photographs of the appellant taken during a labour dispute, in which the appellant was protesting in front of his radio station. There was no proper reason for Tardif, with his own separate agenda, to be allowed to be present at this meeting. There was even less reason for the City of Sainte-Foy then to hire Tardif as part of the criminal investigation team despite his obvious conflict of interest.
17 No photographs of similar-looking people were included in the eight photographs. If Paquet were to make an identification at all, it had to be of the appellant. On this point we agree with the observation made in R. v. Dwyer (1924), 18 Cr. App. R. 145, at pp. 147-48, referred to by our colleague at para. 191, but with respect, it seems to refute rather than support her conclusion. In that case, Lord Hewart C.J. wrote, at p. 148:
One distinction, however, is quite clear. It is one thing for a police officer, who is in doubt upon the question who shall be arrested, to show a photograph to another person in order to obtain information or a clue upon that matter; it is another thing for a police officer dealing with witnesses who are afterwards to be called as identifying witnesses to show to those persons photographs of those whom they are about to be asked to identify beforehand.
18 Our colleague suggests that Dwyer does not impugn the Crown Prosecutor’s conduct in this instance, but rather supports her position because “[t]he identification of the appellant was merely one element in the body of circumstantial evidence on which the charge was based” (para. 192). However, with respect, this understates its importance. The prosecutor needed to know whether Paquet could provide credible evidence of identity to overcome the presumption of the appellant’s innocence. It was the prosecutor’s own view that without Paquet he had no case. It was therefore critical for him to determine whether or not Paquet could supply the missing evidentiary link in court. The prosecutor may have been persuaded of the appellant’s guilt. The question for him in March 1991 was whether he could prove it.
19 Furthermore, in light of the publicity surrounding the defamation action, Paquet knew perfectly well the importance attached by Tardif to identifying the appellant as the “bearded man”. In this case, unlike the situation contemplated by Lord Hewart C.J., the prosecutor himself was present at this improper identification procedure.
20 Paquet then identified the appellant in one of the eight photos, stating that this was his “bearded man”, whom he had seen on the night of the murder. However, as pointed out by the judges of the Court of Appeal in the criminal proceedings, the appellant's eyes, which Paquet claimed were critical to his identification, were not visible in this particular photograph.
21 The prosecutor not only admitted at trial that a positive identification of the appellant was never made but also that this was not possible because the eyes and beard were the only traits of the appellant that Paquet was ever able to identify. The prosecutor was familiar with the fundamental rules of eyewitness identification. He also knew he had to prove identification beyond a reasonable doubt in order to obtain a proper conviction. His willingness to pursue the appellant with a charge of first degree murder in these circumstances is central to the determination of whether this is a case of mere recklessness or malice.
22 The deficiencies in Paquet’s evidence must have been obvious to the prosecutor from the outset, and indeed his view of the matter is shown by his treatment of Paquet at trial, where he deliberately chose not to ask Paquet to identify the appellant in the courtroom. He admitted that this was because Paquet could not do so, seeing as he recognized only the eyes and possibly only the shape of the eyes of a “bearded man”. An obvious question arises in these circumstances: if a legitimate, unequivocal or even adequate identification of the appellant had already been made by Paquet, is it conceivable that he would be entirely incapable of identifying the appellant in person? The appellant may have discarded his beard and put on some weight in the intervening years but Paquet’s identification allegedly centred on “the eyes”, which were the same. In our view, such a flagrantly inadequate eyewitness identification could not have served as a legitimate basis for proceeding to trial.
23 Nor, in our view, do the cases cited by our colleague lend support to what was done here. In R. v. Swanston (1982), 65 C.C.C. (2d) 453 (B.C.C.A.), the witness had positively identified the accused as his assailant on previous occasions (at a line-up and at a preliminary hearing). In the case at bar, there was no such prior identification. Paquet said only that he encountered a man with a beard and distinctive eyes at night around the time of the murder and near the scene of the crime, and came forward more than eight years later.
24 In Mezzo v. The Queen, [1986] 1 S.C.R. 802, as well, there was strong identification evidence before the irregularities took place during subsequent identification sessions. It is important to recall that Wilson J. said in Mezzo that the improprieties in the line-up do not necessarily destroy otherwise good evidence. The operative words here are “otherwise good evidence”. Similarly, in Marcoux v. The Queen, [1976] 1 S.C.R. 763, which is discussed by Wilson J. in Mezzo, this Court found that the trial judge properly put the identification evidence to the jury in spite of the problems with its quality because the complainant actually identified the accused on two occasions at the police station. In the case at bar, not only were there irregularities that were so “imp