E.B.F. (Litigation Guardian of) v. Her Majesty the Queen in Right of Ontario et al, 2013 ONSC 2581
The plaintiff was arrested on June 26, 2008 for repeatedly sexually assaulting his daughter. The criminal charges against him were resolved by way of a peace bond on December 2, 2009. The plaintiff commenced an action against a number of parties including Her Majesty in the Right of Ontario and the Attorney-General of Ontario (collectively the "Crown defendants") on June 10, 2011 claiming damages for false arrest, false imprisonment, breach of Charter rights and negligent investigation. On a motion, the Superior Court of Justice struck the action against the Crown defendants.
The Crown defendants argued that the plaintiff's claims for false arrest, false imprisonment and breach of Charter rights relating to the arrest should be struck because the plaintiff did not commence the claim within two years of his arrest. The plaintiff argued that the limitation period should run from the date he entered the peace bond because he was not able to make a determination of whether his arrest was wrongful until he received legal advice and the results of an investigation conducted through his criminal defence counsel. He led evidence of a psychologist who had interviewed him for a parental assessment in 2007, before the arrest, who opined, among other things, that the plaintiff had weak insight into his legal problems.
In striking these claims, the Court confirmed that the torts of false arrest, false imprisonment and breach of Charter rights related to an arrest crystallize on the date of arrest. There was no "persuasive evidence" in this case to suggest that the plaintiff was suffering from a disability or psychiatric disorder at the time of the arrest that would have affected his ability to appreciate the arrest, the charges and the belief in his innocence.
The Court also considered whether the criminal charges were terminated in favour of the plaintiff. Although this question is typically addressed in the context of a malicious prosecution claim, the parties in this case agreed that the claim for negligent investigation could only proceed if the criminal charges were terminated in the plaintiff's favour. The Court found that, while the Crown concluded it had no reasonable prospect of conviction, the criminal charges were only withdrawn when the plaintiff agreed to enter into a peace bond. In agreeing to the peace bond, the plaintiff extinguished the risk of being prosecuted criminally and agreed to criminal penalties should he breach the terms of the peace bond. The peace bond was a necessary "give" in order to secure the Crown's withdrawal of the charges. Therefore, the criminal charges were not terminated in favour of the plaintiff, and the claim for negligent investigation was also struck.
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