Judgment of the Court
THE CHIEF JUSTICE.-The action out of which this appeal arises was brought for the purpose of recovering damages for what is usually called malicious prosecution.
The plaintiff, now appellant, was the owner of a creamery at a place called Dixville in the Eastern Townships. After this creamery had been in operation about six years the defendants, now respondents, started a rival factory with the result that most of the business of the neighbourhood was attracted to their establishment.
During the night of July 27th, 1905, when the new creamery was completed and ready for business, an attempt was made to set fire to the building, and, for reasons which are stated at great length in the evidence, suspicion was directed towards the appellant ixr as the guilty party. The local magistrate was consulted by one of the officials of the respondent company and on his suggestion further inquiries were made, the results of which were laid before counsel Justice. who advised that the appellant should be prosecuted. Thereupon the appellant was arrested and, after the preliminary examination, he was committed for trial. Subsequently the district magistrate before whom the case was tried under the "Speedy Trials Act" discharged him.
Two of complainant's witnesses were absent from the country at the time of the trial, and there may have been sufficient evidence to shew a probable cause for prosecuting, but not such plain proof of guilt as would justify a conviction. After his acquittal by District Magistrate Mulvena, the appellant brought this action for $5,000 damages, alleging the arrest and subsequent discharge and that the respondents acted maliciously and without reasonable and probable cause.
The respondents pleaded that they used proper care to inform themselves of the facts, that the act was done without malice and that they honestly believed the case which they laid before the magistrate. On these issues the parties went to trial. The judge of the Superior Court, who saw the witnesses and had full opportunity of judging by their demeanour whether they were witnesses of truth, came to the conclusion that the respondents had taken care to inform themselves of the facts of the case; that no malice had been proved and that there was abundant evidence of reasonable and probable cause, and dismissed the action.
In this conclusion the judges in appeal concur and I can see no reason on the evidence why we should reverse.
In appeal an issue was raised as to the burden of proof and this question has been recently much discussed in the Quebec Courts; Sharpe v. Willis (1), and Durocher v. Bradford (2). At page 80 of the last report many cases are cited and much learning is displayed to prove that there is a difference between the English and French rule of law on this point; but, expressing a personal opinion, I agree with Mr. Justice Blanchet that there is no such difference. Under the English system, in an action for malicious prosecution and the principles applicable in cases arising in Quebec will be found laid down in article 1053 of the Code:
To make the party prosecuting responsible, it is necessary that the damage should be caused by his fault; and to lay an information, when in possession of facts sufficient to establish a bond fide belief of guilt, is not a fault, but the exercise of an undoubted right. In Quebec, as in English courts, it must be alleged and proved that there was fault, that is to say, that the prosecutor acted, to use the words of the Cour de Cassation and the plaintiff in his declaration thought it necessary to allege in conformity with this view of the law that the prosecution was started maliciously to injure him and without reasonable and probable cause. It is not necessary, however, for the purposes of this case to determine that point; the evidence given is sufficient to prove that the party prosecuting entertained a reasonable bond fide belief based upon full conviction founded upon reasonable grounds that the appellant was guilty of the offence which had undoubtedly been committed.
I would like to say, speaking again for myself, that in my opinion a private prosecutor is a useful person in a community where we have nothing in the nature of a public prosecutor and those who, having taken the reasonable care to ascertain the facts, prosecute duly in the public interest should be protected. It would be encouraging useless appeals for this court to hold that an uneducated layman was in fault in assuming that he had reasonable and probable cause for a prosecution in a case in which the trial judge and five judges in appeal agree with him.
The appeal is dismissed with costs.
Appeal dismissed with costs.