Many incorrectly assume that the withdrawal of criminal charges
always means that a civil action can be commenced against the
officer(s) who laid the charge. This is not the case. According to
the Court of Appeal for Ontario, the circumstances giving rise to
the withdrawal may have a significant impact on whether a
subsequent civil claim may proceed. In Romanic v Johnson,
 OJ No 2642 (SCJ); aff'd  OJ No 229 (CA), the court
provides a useful guideline on how the results of a criminal
proceeding may impact a civil action against police.
In Romanic, the plaintiff was a police officer who ran
a locksmith business on the side. His entrepreneurial spirit ran
afoul of the law when he began to use police resources to promote
the business. A criminal investigation ensued and resulted in a
number of criminal charges against him. The criminal proceeding
came to an end when the Crown agreed to withdraw the charges if
Romanic resigned from his employment as a police officer. Romanic
resigned. The Crown withdrew the charges on the basis that
prosecution was no longer in the public interest.
With the criminal prosecution behind him, Romanic sued police
for negligence and malicious prosecution, claiming, amongst other
things, that the criminal charges had concluded in his favour. The
police defendants brought a motion for summary judgment arguing the
contrary: the criminal charges did not end in his favour. Both the
motion judge and Court of Appeal agreed and the action was
In reaching his conclusion, the motion judge undertook a cogent
review of the various potential resolutions to criminal
proceedings. He then considered their potential impact on the
subsequent civil action. Generally, if charges are unilaterally
withdrawn or stayed without a quid pro quo from the
accused, the criminal proceeding has resolved in favour of the
plaintiff and the civil action may proceed. By contrast, a
plaintiff (such as Romanic) cannot pursue a claim against police
when the charges are withdrawn as a result of a negotiated
resolution. Examples of negotiated resolutions include a withdrawal
in exchange for the plaintiff/accused entering a peace bond, making
restitution payments to either the alleged victim or a charity, or
entering a guilty plea to a lesser or some other charge (i.e., a
Both courts in Romanic, however, were careful not to
create neat categories of quid pro quo vs. non-quid
pro quo cases. The analysis does not end with fitting a
criminal resolution into one of these categories. As held by the
Court of Appeal in Ferri v Root,  OJ No 397 (CA),
courts must undertake a contextual analysis of the underlying
reasons for the resolution of criminal charges. If the Crown
withdraws as part of a good faith negotiated resolution involving a
quid pro quo from the accused, the disposition is unlikely
to favour the plaintiff and an element of the torts of negligent
investigation and malicious prosecution will not be made out.
However, if the negotiated resolution is an attempt to avoid court
scrutiny of police conduct or if the Crown abuses its position of
strength in the process, the civil action will likely be permitted
to continue notwithstanding the existence of a quid pro
Romanic is a useful reminder for counsel in civil
actions against police to give greater consideration to the
parallel criminal proceeding. While the withdrawal of criminal
charges may seem like a favourable resolution to a plaintiff, this
will not always be the case. Why were charges withdrawn? Was there
a meaningful sanction against the plaintiff? Was the settlement an
attempt to avoid judicial scrutiny? Once counsel determines what
lies beneath the resolution, they will be in a better position to
assess the viability of the civil action.
Originally published in Insurance Observer (January
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