Samaroo v. Canada Revenue Agency (March 18, 2015 – 2015 BCCA 116, Donald (Author), Harris, Goepel JJA).
Précis: The Samoroo’s, husband and wife, were acquitted of tax evasion after a 19 day trial. They sued CRA and the prosecutor (and his law firm) for malicious prosecution. The defendants resisted discovery proceedings on the basis of an alleged “threshold evidentiary burden” to be met in attacking prosecutorial discretion. Punnett J. in the British Columbia Supreme Court held there was no such burden. The defendants appealed and the British Columbia Court of Appeal dismissed their appeal.
Decision: The issue before the Court of Appeal was framed very narrowly:
[6] This appeal was originally brought on two grounds, but as events have unfolded, only the following issue remains:
Whether the learned judge erred in law in finding that Crown immunity does not apply in a malicious prosecution case to bar disclosure of Crown decision making absent evidence of abuse of process.
The defendants relied upon a decision of the Supreme Court of Canada:
[3] The matter before us arose at the discovery stage of the civil claim. The appellants resisted disclosure of certain documents on the authority of
R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, which is said to have established a broad rule imposing a “threshold evidentiary burden” on a party challenging prosecutorial discretion. In other words, the appellants submit, the claimant must now show something akin to an air of reality to the allegation of malice before demanding documents involved in the exercise of prosecutorial discretion that may be relevant to a finding of malice.
The Court of Appeal rejected the application of Anderson to the tort of malicious prosecution:
[12] I do not accept the argument that Anderson intended to include the tort of malicious prosecution in its abuse of process analysis. Firstly, the case arose in the criminal context where the remedy, a stay, is sought within the litigation itself. Secondly, the jurisprudence referenced in the reasons also came from the criminal realm. Thirdly, pragmatic considerations in criminal cases are different from civil cases, most obviously the disruptive effect of delay when the progress of a criminal trial is interrupted, hindered, or prolonged by an abuse claim. Actions for malicious prosecution necessarily follow the outcome of the criminal case, which must be an acquittal. The common law has developed its own methods for dealing with unmeritorious claims at an early stage of proceedings, a subject on which I shall elaborate later.
[13] Fourthly, and I think most importantly, the reasons in Anderson do not evince any intention of diminishing the tort of malicious prosecution, which would surely be the effect of imposing a threshold evidentiary burden prior to discovery.
…
[18] The appellants submit that it is anomalous that in a criminal proceeding, where the liberty of the subject is at stake, a threshold evidentiary burden prior to an inquiry into abuse of process must be satisfied, while there is no such burden in the civil counterpart. In my opinion, there is no anomaly because the two situations are alike only in that they involve allegations of abuse of process; in all other important respects, such as procedure and remedy, they are distinctly different.
[19] In summary, I do not think that Anderson applies to the tort of malicious prosecution; the claimant is not required to satisfy a threshold evidentiary burden prior to discovery, and therefore there is no foundation to the appellants’ objection to production of the documents referred to in the order under appeal.
[20] I would dismiss the appeal.