Lenhardt v. Canada (Rcmp), docket T-320-92

     Date: 19981118

     Docket: T-320-92

     Plaintiff

     Defendant

     REASONS FOR JUDGMENT

DENAULT J:

[1]      The plaintiff is claiming $50,000,000.00 from the defendant as remuneration for drug-related undercover work which he allegedly performed at the behest and to the benefit of the RCMP. The plaintiff also claims $179,000.00 for out-of-pocket expenses incurred in the performance of such work.

[2]      While the RCMP recognizes that the plaintiff, in his capacity as informant, occasionally provided intelligence relative to smuggling operations, it denies ever having contracted with the plaintiff in the terms alleged by him. It further maintains that, in accordance with the RCMP's policy respecting the remuneration of informants, the plaintiff was duly and fairly paid for information he supplied provided that it was considered valuable information and that it ultimately led to the seizure of narcotics and an arrest.

[3]      The statement of claim was originally filed in 1992. At that time, the plaintiff was represented by counsel. The years saw many developments in this matter, which developments eventually led to a third amended statement of claim. Justice McKeown, by order dated September 28, 1993, struck numerous paragraphs from the third amended statement of claim. An examination for discovery was conducted and affidavits of numerous documents were filed. By March 1997 the plaintiff, having elected to represent himself, was no longer represented by counsel. The trial proved to be particularly difficult, owing to the plaintiff's lack of familiarity with the progress of a trial, the rules of evidence and the Federal Court Rules.

[4]      The plaintiff first worked as an RCMP informant from 1975 to 1978 and again from late 1984 to early 1989. At first, the plaintiff offered to gather intelligence for the RCMP. The RCMP believed that, being of Czechoslovakian origin, the plaintiff would be able to mingle with the "targets", thus infiltrating a group of Czechoslovakian smugglers who were internationally connected and were responsible for much of the drug trade in Vancouver during the 1970s. To this end, he met with RCMP representatives, was informed of the method of remuneration and began infiltrating the Czechoslovakian underworld. For several months he collected intelligence and reported back to the RCMP. He gradually developed an interest in the narcotics aspect of the work and, having decided that he wanted to do bigger and better things, he approached the RCMP on numerous occasions to discuss the possibility of increased remuneration. The RCMP explained that increased remuneration might be possible if the information supplied by the plaintiff led to multiple seizures and multiple arrests and if he were willing to testify regarding the undercover operation. In June 1978, the plaintiff's services were terminated after he uttered death threats against members of the RCMP. Nonetheless, he was later retained and fully compensated by the RCMP for information provided by him between 1984 and 1989.

[5]      In essence, the plaintiff argues that, between 1975 and 1977, the RCMP had undertaken to pay him $30,000.00 per kilogram of narcotic seized pursuant to his work as an informant. He further maintains that, from 1977 to 1978, he was to receive monetary compensation equivalent to five percent (5%) of the street value of the drugs seized pursuant to his efforts as an informant.

[6]      At law, the burden of proof rests on the party bringing the claim, whether that claim be asserted in contract or in tort. If a claim is filed in contract, the plaintiff must establish the existence of a document or agreement which demonstrates, among other things, that the parties were ad idem, that there was a meeting of minds relative to the subject matter of the contract. If a claim is filed in tort, the plaintiff must establish the elements of negligence arising out of the alleged act or omission.

[7]      The plaintiff offered into evidence only his testimony and a series of hand-written documents which he sought to file as a bundle upon completion of his testimony. During his testimony, the plaintiff methodically covered the contents of his 109 paragraph Statement of Claim, relating the nature and substance of his meetings with RCMP representatives, including the operations he was involved in and the undertakings or agreements which these meetings allegedly engendered. During the course of his testimony, the plaintiff focused primarily on the remuneration he felt was owed him for past performance.

[8]      Of the bundle of hand-written documents and audio-cassettes which the plaintiff sought to admit into evidence, materials with respect to which the Court reserved on the issue of admissibility, very few are admissible. Those that are admissible tend not to operate in the plaintiff's favour.¹ In the main, the bundled documents consist of statements by the plaintiff (Exhibits 1 to 4), a chart of events (Exhibit 5) and "events of targets--value on seizures" (Exhibits 11 and 12), all of which are private writings/personal notes and impressions which, by plaintiff's own admission, were prepared in contemplation of litigation. Those documents are all inadmissible. The plaintiff clearly failed to understand that, during a trial, facts are entered into evidence by way of the testimony offered by various witnesses and not by producing copious personal notes. The plaintiff did state, at trial, that he had planned on calling witnesses but was unable to do so because of their unavailability. He explained that his "superstar witness went insane" and that another had succumbed to a heart attack.

[9]      With respect to the audio-cassettes (Exhibits 20, 22, 23 and four other tapes), none of which is an original, by plaintiff's own admission, they are irrelevant and inadmissible because they refer to meetings which occurred in 1990, a period outside the scope of this claim. Even if the audio-cassettes had referred to meetings which occurred within the 1975 to 1978 and 1984 to 1989 time frames, the plaintiff would have been required to call the individuals represented on the cassettes in order to verify and validate the accuracy of the information contained therein.

[10]      Moreover, the series of documents identified by the plaintiff as "Chronology" (Exhibits 1 to 21) are, with the exception of Exhibits 3, 6 and 11 which were produced for and subjected to the examination for discovery, inadmissible as evidence, being mere personal writings. The same reasoning applies with respect to two large bundles of documents identified by plaintiff as Exhibit 18² and Exhibit 19.³

[11]      Two retired RCMP representatives, Mr. Wilkes and Mr. Stovern, offered testimony. Each had been a member of the RCMP's drug unit in Vancouver at the relevant times and each had dealt with the plaintiff in the mid-1970s. These witnesses explained the RCMP's means and methods relative to the use of informants, with emphasis on the RCMP's policies and limitations relative to their remuneration. Both witnesses forcefully denied ever having agreed or undertaken to compensate informants on the basis of either $30,000.00 per kilogram of drug seized or 5% of the street value of the drugs. While they both acknowledged the RCMP's policy and practice of paying the "reasonable expenses" of informants (i.e. gas, funds needed to meet with "targets" in bars etc.), they testified that, as a matter of policy, informants were only remunerated pursuant to a successful seizure and arrest. Even when those criteria had been met, the actual dollar amount by which an informant would be compensated was totally discretionary: the RCMP compensated informants based solely on the value of the information provided; it did not rely on predetermined formulas to calculate what amount ought to be awarded informants.

[12]      Mr. Wilkes and Mr. Stovern both acknowledged having used the plaintiff as an informant between 1975 and 1978. In the early years, the plaintiff was paid a monthly allowance or stipend of approximately $200.00 over a period of a few months. In 1977-1978, the plaintiff was involved in an operation for which the RCMP paid him $2,500.00. On June 12, 1978, the plaintiff's services were terminated following threats he made against members of the RCMP. Despite this parting of ways, the RCMP once again used the plaintiff's services from 1984 to 1989 in connection with projects "Checkmate" and "My way" for which he was paid $44,000.00 and $31,000.00 respectively.⁴

[13]      The plaintiff's credibility is a pivotal factor in the case at bar. As a witness, I find the plaintiff wanting for credibility. He explains the absence of a written contract by insisting that the RCMP refused to allow him to sign such a contract because he was not a Canadian citizen. He testifies elsewhere, however, that he might have signed a contract in May. His testimony is peppered with other blatant contradictions and inconsistencies as well. At the examination for discovery, for example, he stated that the 5% figure was agreed to in 1977 and that it was supposed to apply to future operations. At trial, however, he insisted that the 5% figure was supposed to apply to past, present and future drug seizures.⁵ Moreover, at trial, the 5% figure was mysteriously and apparently arbitrarily transformed to 10%, ostensibly "because they [the RCMP] did not treat me fairly".

[14]      The plaintiff's credibility was further eroded by his propensity for spurious statements and gratuitous barbs. Among other things, he maintains the following: that each one of his lawyers somehow compromised his interests owing to their overarching preoccupation with fee payments; that the RCMP was instrumental in Justice Sopinka's death; that Justice McKeown's order to strike many paragraphs from the plaintiff's third amended statement of claim was varied by Justice McGillis, this being a clear factual inaccuracy; that the stricken paragraphs were reinstated by defense counsel at discovery; that Chief Justice Lamer reinstated the paragraphs stricken by Justice McKeown; and that the inconsistencies which surfaced between answers which the plaintiff provided at trial and those he offered at discovery were the product of tampering by the court reporter at discovery.

[15]      Moreover, the plaintiff failed to discharge his burden of proof: he did not establish, on the balance of probabilities, that he and the defendant ever entered into an agreement or understanding by virtue of which he would have been entitled to remuneration in excess of that which he has already received. He similarly failed to establish that the RCMP committed an act or omission amounting to negligence in its treatment of him.

[16]      In the result, this action is dismissed with costs.

     J.F.C.C.

¹      Exhibits 6, 7, 8 and 9 consist of receipts and acknowledgments relative to monies paid to plaintiff by the RCMP.

²      This is a 73 page bundle entitled "The RCMP Representatives Wrongdoing. My Evidence!"

³      This consists of three bundles of 12, 31 and 86 pages, respectively entitled "Savage Parody 1991-1994", "Savage Parody 1995", and "Savage Parody 1996".

⁴      Exhibits 6, 7, 8 and 9 are the receipts and acknowledgements associated with these projects.

⁵      See Question 1781 of the Examination for Discovery, at page 281, and paragraph 65 of the third amended statement of claim.