Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights - Torts - Negligent investigation - Malicious prosecution - Abuse of process - False imprisonment - Breach of Charter rights - Police service - Crown attorneys - Evidence - Whether evidence unavailable at the time of the laying of the charges is admissible to prove that reasonable and probable grounds existed at the time of the laying of the charges - Whether hearsay evidence admitted at trial not for the truth of its content can be relied upon to prove that probable and reasonable ground existed to lay charges - Whether one event of communicating is sufficient to make out the offence of criminal harassment by repeated communication - Whether the laying of a civil action can constitute “unlawful conduct” capable of forming the actus reus of the offence of criminal harassment - Whether actual malice must be proven in a malicious prosecution action - Whether the tests to prove false imprisonment and arbitrary detention are the same as the test to prove malicious prosecution.

Diane Magas, an Ottawa lawyer, brought three actions claiming she was the victim of negligent investigation, malicious prosecution, abuse of process, false imprisonment, and breach of various Charter rights by the Ottawa police and the Crown attorney involved in the matter. The actions arise from incidents in 1999 which involved her lover of many years, Richard Condo, and his wife, Yvonne McGuire. In the course of these incidents, Mr. Condo was twice arrested and released on conditions. On the first occasion, Ms. Magas was his surety and the conditions of his bail specified that he was not to have contact with Ms. McGuire except through his lawyer. He persisted in making contact, directly, through Ms. Magas or his children, with Ms. McGuire. Ms. Magas’ involvement led to Ms. McGuire’s lawyer discussing a s. 810 proceeding under the Criminal Code with a Crown attorney to obtain protection from Ms. Magas for Ms. McGuire and also to the Respondent Detective Pasanen becoming involved.

On May 31, Mr. Condo attacked and kidnapped Ms. McGuire, holding her hostage for most of a day. The Respondent Det. Monette was assigned to investigate the kidnapping. Soon thereafter, Det. Pasanen served Ms. Magas with the s. 810 information. Also that day, in family court, Ms. Magas was ordered not to communicate with Ms. McGuire or the children on Mr. Condo’s behalf. The s. 810 information was withdrawn three weeks after it was sworn out of concern that it might hamper the criminal harassment charge laid jointly against Ms. Magas and Mr. Condo.

After being briefed by Det. Monette, the Respondent Crown Attorney McGarry agreed that Ms. Magas and Mr. Condo should be charged jointly for criminal harassment. After one attempt to execute the warrant, Det. Monette had Ms. Magas’ counsel arrange to have her attend the police station that day. She was held in the station cells for about two hours and released by the senior officer on conditions. Ms. Magas’ charge was severed from Mr. Condo’s and did not survive a preliminary hearing.