Pearson v. The Queen, 2003 FC 1058

Date: 20030911

Docket: T-290-99

Citation: 2003 FC 1058

BETWEEN:

                                                                 EDWIN PEARSON

                                                                                                                                                          Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

ARONOVITCH P.

[1]                 The Crown is moving to strike Edwin Pearson's claim for $ 13 million, in compensatory, general and punitive damages, for alleged violations of his Charter rights by servants of the Crown in the course of prosecuting the plaintiff on narcotic-related charges.    For the reasons that follow, I will deny the motion.

BACKGROUND

[2]                 It is useful to understand the events giving rise to the proceeding. In 1989, the plaintiff was charged with five counts of trafficking in narcotics. He was tried on those charges before a judge and jury in the Quebec Superior Court. Pearson was found guilty on four counts and acquitted on one count. On May 16, 1991, after an entrapment hearing, a conviction was entered and the plaintiff was sentenced to a jail term.

[3]                 On appeal from the convictions, the Quebec Court of Appeal affirmed the verdicts of the jury, but allowed the appeal in part. A new trial was ordered to take place before a judge of the Superior Court, limited to the issue of entrapment, based on the conclusions that certain documents concerning an informant should have been disclosed to the plaintiff before the trial, (R. v. Pearson, [1994] Q.J. No. 66 (Que. C.A.)). The plaintiff appealed the decision to the Supreme Court of Canada. In, R. v. Pearson, [1998] 3 S.R.C. 620, the Supreme Court affirmed the judgment of the Quebec Court of Appeal and noted, at paragraph 22:

The appellant also raised several other grounds of appeal before this Court. Most of these grounds relate to violations of his Charter rights or to the trial judge's instructions to the jury. Fish J.A.'s analysis of these issues is sound and we do not wish to add to it. The appellant also raised new grounds before us, submitting that the Court of Appeal ought not to have considered new evidence presented by the Crown (the informant's notes referred to above). He also presented this Court with evidence discovered in the course of the second trial on entrapment, which is now pending on appeal before the Quebec Court of Appeal. This evidence mostly relates to the testimony of undercover RCMP officers that the appellant alleges are contradictory. These matters are more appropriately dealt with by the courts below[...]

[4]                 The plaintiff's second entrapment hearing was heard before the Quebec Superior Court. In November 11, 1994, Boilard J., found that entrapment was not established. An appeal was taken from that decision to the Quebec Court of Appeal and dismissed by the Court of Appeal on November 19, 1999.

[5]                 The grounds of the second appeal included; the adequacy of disclosures; the nature and quality of the evidence given by the police officers and informant before Boilard J., especially as compared with their previous evidence and examined in light of the originally undisclosed materials, and allegations of various errors of fact and law in the new hearing on the issue of entrapment. Those grounds were not made out, and the appeal was dismissed: Regina v. Pearson [1999] Q.J. No. 5135 (Que. C.A.). In the result, the four convictions stand.

[6]                 In 1999, while the second appeal to the Quebec Court of Appeal was pending, Pearson initiated an action for damages in this Court, alleging that his prosecution, conviction and imprisonment were in violation of sections 7 and 11 of the Canadian Charter of Rights and Freedoms (the "Charter"). More specifically, the plaintiff alleges that agents of the Crown willfully and maliciously failed to disclose documents, tendered fraudulent ones and gave perjured and contradictory evidence, with the effect of depriving him of his right to a fair trial and the liberty and security of his person, as guaranteed by the Charter. As I understand it, Pearson essentially takes the views that the misdeeds of agents of the Crown, and in particular the non-disclosure of documents, deprived him of his right to make full answer and defence on the issue of entrapment and to establish allegations of perjury and fraud at his trial, before the Quebec Court of Appeal and the Supreme Court.

[7]                 Pearson's action in this Court, and the Crown's motion, of which I am seized, have a complex history which is fully canvassed in the Reasons of Justice Hansen, [2001] F.C.J. No. 1025. Justice Hansen's decision essentially culminated in granting leave to the Crown to serve the amended notice of motion presently at issue. Thus, at the date of hearing of the motion, pleadings were closed, a reply having been served and filed as of February 14, 2000.

[8]                 In its written submissions, the Crown relies on several grounds for striking the action, chief among them, res judicata and issue estoppel, on the basis that this action is an attempt to re-litigate the very matters decided by the Quebec Court of Appeal. The Crown also raises the insufficiency of pleadings in failing to allege the necessary facts to establish a breach of the plaintiff's Charter rights, or his entitlement to damages.

[9]                 At the hearing of the motion, counsel clarified that the Crown is now relying on only two grounds for the purposes of this motion. The first, that the plaintiff's action is prescribed, the other, that it does not disclose a reasonable cause of action in that it fails to meet the requirements established for the tort of malicious prosecution. As the other grounds are withdrawn, I will consider only the two arguments on which the Crown now relies to strike the action.

Provincial Prescription and a Charter Claim

[10]         Section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, provides that an action against the Crown is subject to the time bars prescribed by the law of the province where the cause of action arose:

[11]            There seems to be no dispute that the cause action in the case at bar arose in the province of Quebec. It is the Quebec law relating to prescription, therefore, that is applicable. Time bars to lawsuits are governed by Title Three ("Extinctive Prescription")of Book Eight ("Prescription") of the Civil Code of Quebec, S.Q. 1991, c. 64 (the "Civil Code"). The Crown relies more specifically on article 2925 of the Civil Code, which provides as follows:

[12]            Assuming that the within claim may be said to be "an action to enforce a personal right", and subject to other relevant articles of the Civil Code, the period of limitation is three years. The Crown maintains that the material facts relied upon in the statement of claim, are exclusively in respect of the 1991 trial, and that accordingly, the action was long prescribed when commenced in this Court.

[13]            The plaintiff argues that the breach of his rights is ongoing, and that the continuing disclosure of documents, including in the context of this action, serve to nourish his claim. Pearson's principal argument in response, however, is that provincial time limitations cannot apply to bar his claim as it is grounded in the Charter.

[14]            The argument is not free of doubt, as there has been some dispute in the courts regarding the effect of provincial statutes of limitations on Charter-based claims. In Prete v. Canada, 110 D.L.R. (4^th) 94 (Ont. C.A.) ("Prete"), application for leave to appeal to the Supreme Court denied: [1994] S.C.C.A. 46, in Prete the Ontario Court of Appeal was faced with a claim involving Charter grounds which appeared to be prescribed as a result of a six month limitation period imposed under the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Relying on the Supreme Court of Canada decision in Nelles v.Ontario (1989), 60 D.L.R. (4^th) 609 (S.C.C.), the Court concluded that a provincial statute could not stand in the way of a constitutional entitlement, stating at page 100:

The remedy section of the Charter would be emasculated if the provincial government, as one of the very powers the Charter seeks to control, could declare itself immune.

[15]            Notably, the Court of Appeal in Prete was aware of, and even quoted, the following Supreme Court guidelines in R. v. Mills, [1986] 1 S.C.R. 863 at p. 953, saying that "the Charter was not intended to turn the Canadian legal system upside down. What is required rather is that it be fitted into the existing scheme of Canadian legal procedure". The majority of the Ontario Court of Appeal found however that a Charter claim could be exempt from statutory time limitations.

[16]            There are decisions of other appellate courts pointing in the opposite direction. These include, McGillivary v. New Brunswick (1994), 111 D.L.R. (4th) 483 (N.B. C.A.) ("McGillivary") and Nagy v. Phillips (1996), 137 D.L.R. (4th) 715) (Alta. C.A.). The defendant, for its part, relies principally on Gauthier v. Lambert, [1988] R.D.J. 14 (Que. C.A.) ("Gauthier"), application for leave to appeal to the Supreme Court denied on May 26, 1988, wherein the Quebec Court of Appeal quoted and endorsed the reasoning of the Superior Court judge, who explains that the Charter was not intended to, and does not do away with time limitations.

La Charte constitutionnelle de 1982 n'a pas fait disparaître toutes les dispositions limitatives des droits des individus, non plus que les notions de prescription. Les recours exercés en vertu de l'article 1053 du Code civil qui couvrait déjà, avant l'avènement de la Charte constitutionnelle, la majeure partie de l'éventail des recours possibles par les victimes de préjudices de quelque nature qu'ils soient, mais impliquant la notion de faute, continuent d'être astreints aux courtes prescriptions des articles 2260 et suivants du Code civil et de la Charte n'a rien fait pour modifier ces dispositions du Code civil qui empêchent l'exercice d'un recours après un an, deux ans, trois ans ou cinq ans, lesdits recours étant éteints parle seul écoulement du temps et cette prescription étant opposable d'office, tel que le stipule la loi.

S'il fallait en croire le demandeur, la Charte constitutionnelle aurait ni plus ni moins aboli ces prescriptions sans pour autant en imposer de nouvelles.

[17]            Essentially the same view is expressed by Hugessen J. in St-Onge v. Canada, [1999] F.C.J. No. 1842 (T.D.), aff.'d [2000] F.C.J. No. 1523 (F.C.C.A.). Justice Hugessen noted the conflict represented by Prete and Gauthier. Having found that he did not need to decide the issue "much in dispute in the Courts", he concluded that a provincial limitation, applicable to a tort, does act to bar an action in tort based on delicts which are at the same time infringements of rights guaranteed by the Charter.    He made the following comments (at para. 4-5):

[...] The Charter was adopted in a context which already included two well-developed systems of civil law with sophisticated rules of procedure and the appropriate courts to give effect to them. The Charter contains no purely procedural provisions and no rule governing prescription.

Clearly, it does not follow from this that the Charter has completely destroyed existing systems and created a system in which no procedure or prescription exists. On the contrary, existing legislation and procedures continued to apply except where they were clearly inconsistent with the Charter itself.

[18]            I note in this connection, that Pearson's claim does not allege a common law tort, or indeed, show any cause of action independent of the Charter, but seeks damages ostensibly exclusively on the basis of constitutional or "Charter tort", (see: McGillivary supra, and Oniel v. Toronto (Metropolitan Police Force), [1998] O.J. No. 3840 reversed, Oniel v. Toronto (Metropolitan Police Force) [2001] O.J. No. 90 (Ont. C.A.). I note as well that leave to appeal to the Supreme Court of Canada was denied in both Prete and Gauthier, and do not accept that Gauthier is determinative of the issues, notwithstanding that the action arises in Quebec. I take the matter to be contentious and not one to be settled on a motion to strike.

Time Bars on a Motion to Strike

[19]            That said, and even assuming that the provincial period of prescription applies, in my view, a motion to strike is not the appropriate venue for the determination and application of a time bar. In Kibale v. Canada (1990), 123 N.R. 153 (F.C.C.A.), the Federal Court of Appeal held that a statute of limitations is not a valid ground to strike a statement of claim for failure to disclose a cause of action (at pp. 154-155):

... a statute of limitations under the common law does not terminate the cause of action, but only gives the defendant a procedural means of defence that he may choose not to employ and must, should he choose to employ it, plead in his defence... he cannot do so in a motion to strike out...

[20]            In Fox Lake Indian Band v. Reid Crowthers & Partners Ltd., 2002 FCT 630, Hargrave P. relies on Kibale, to reiterate that the ability to argue a limitation as defence is not, per se, sufficient ground to strike out a claim, noting only the following exception at paragraph 20, which I will add, does not find application in the case at bar:

... Certainly, I am aware of instances in which a pleading has been struck out because a limitation had run. These instances appeared to be, at least for the most part and perhaps entirely, special circumstances in which a statutory limitation may go beyond a mere defence...

Accordingly, prescription will not avail the Crown in this instance, even though limitations have been pleaded, all the more so where the issue appears to be joined in reply.

[21]            I am cautioned that the Court in Kibale, refers to "a statute of limitations under the common law", while in this instance we are dealing with prescription at civil law. In that connection, articles 2875, 2877, 2880, 2881 and 2921 of the Civil Code, are relied upon by the Crown, and may indeed be relevant if the matter were to be determined on the merits. Its is unnecessary, however, to engage in an analysis of the substantive civil law, as it calls for a conclusion of law not appropriately made on a motion to strike, and moreover begs the question as to the underlying facts. The determination of whether a matter is prescribed ordinarily requires a full factual matrix. If not left for trial, the application of a time-bar, in my view, is more appropriately adjudicated at an interlocutory stage by way of a motion for summary judgment.

Malicious Prosecution

[22]            The Crown submits that the plaintiff's action is essentially an action for malicious prosecution, and as such, must meet the necessary elements of that particular tort. The required elements were identified by the Supreme Court in Nelles v. Ontario, [1989] 2 S.C.R. 170 at para. 42:

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

                a)    the proceedings must have been initiated by the defendant;

b)    the proceedings must have terminated in favour of the plaintiff;

c)    the absence of reasonable and probable cause;

d)     malice, or a primary purpose other than that of carrying the law into effect.

[23]            The Crown concedes that the first element is satisfied - the criminal proceedings against the plaintiff were initiated by the Crown. However, the second element is not. Save for the one count, "the proceedings", including the ultimate result of all appeals, terminated in favour of the Crown, upholding the plaintiff's convictions. According to the Crown, further inquiry into the remaining two elements becomes unnecessary, as it is clear that the plaintiff has not satisfied an essential element. Not having pleaded material facts sufficient to support an action for malicious prosecution, says the Crown, such an action cannot succeed.

[24]            The analysis may be correct as it goes, the plaintiff, however, did not frame his statement of claim as an action for malicious prosecution and vigorously objects to his claim being cast in those terms. As I have explained, the plaintiff alleges that his rights under the Charter have been violated, and claims compensation under s. 24(1) of the Charter, only for those violations. (Indeed the Crown has defended, inter alia, on the basis that a breach of the Charter does not constitute a civil cause of action that can give rise to a remedy under s. 24(1)).

[25]            It is without doubt for the litigant to choose the form of his or her claim. The defendant cannot impute a kind of action to the plaintiff that he did not institute, alleging that it is the most appropriate characterization of the plaintiff's action, and then ask the Court to dismiss it because it does not fit the elements necessary for such characterization. Pearson is not suing for malicious prosecution and whether his claim can meet the necessary elements of this tort, is irrelevant. An order will go accordingly.

"Roza Aronovitch"

Prothonotary

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:T-290-99

STYLE OF CAUSE:

EDWIN PEARSON

Plaintiff

-and-

HER MAJESTY THE QUEEN

Defendant

PLACE OF HEARING:                                   TORONTO, ONTARIO

DATE OF HEARING:                                     JUNE 12, 2003

REASONS FOR ORDER OF MADAM PROTHONOTARY ARONOVITCH

DATED:                      SEPTEMBER 11, 2003

APPEARANCES:

MR. EDWIN PEARSON                                                FOR PLAINTIFF

MR. JACQUES SAVARY                                              FOR DEFENDANT

SOLICITORS OF RECORD:

Edwin Pearson                                                     FOR PLAINTIFF

Burlington, Ontario

Morris Rosenberg                                                 FOR DEFENDANT

Deputy Attorney General of Canada

Department of Justice