Date: 20040301
Docket: T-46-03
Citation: 2003 FC 869
BETWEEN:
HAROLD JAMES LEGERE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
AMENDED REASONS FOR ORDER
HARGRAVE P.
[1] This motion was initially set down as a rule 369 motion in writing. By Order of Mr Justice Pinard it became a regular motion argued in person by the Plaintiff and Crown counsel.
[2] The Plaintiff, who was unsuccessful in Supreme Court of British Columbia ("BC Supreme Court") custody and access proceedings involving his children, seeks damages, including punitive damages, declarations and various prerogative writs against the Federal and the Provincial Crown. The relief that he seeks arises both out of the BC Supreme Court Orders of a Master and three Judges in matrimonial and child custody proceeding and also out of the actions of the municipal police force of New Westminister, British Columbia.
[3] The Statement of Claim may well be defective and susceptible to striking out by reason of a failure to plead material facts. However I strike it out, without leave to amend, for want of a cause of action for the Federal Crown has no supervisory role vis-a-vis an independent judiciary. Nor is there jurisdiction in the Federal Court either to hear a collateral attack, by way of the Federal Crown as a defendant, on the decisions of the BC Supreme Court, or over the Provincial Crown in order to deal with the alleged transgression of a municipal police force. I will consider this in more detail, beginning with some relevant background.
SOME RELEVANT BACKGROUND
[4] The Plaintiff's material indicates that his wife commenced an action in the BC Supreme Court, New Westminister registry, although the date of the action is not provided.
[5] Subsequently a BC Supreme Court Master, again on an unspecified date, made an ex parte Order against the Plaintiff and at a later hearing is alleged to have denied the Plaintiff a full hearing.
[6] Later, again on an unspecified date, the Plaintiff says that Mr Justice Fraser, during a rule 18A hearing, a rule that deals with summary trial, had the Plaintiff incarcerated for two hours. The Plaintiff submits that this violated his constitutional rights, as to equal treatment before the law, resulting in both arbitrary detention and unreasonable search and seizure.
[7] The Plaintiff's Statement of Claim goes on to refer to an access Order, date unspecified, made by Mr Justice Warren of the BC Supreme Court, which the Plaintiff submits violated his Charter rights and demonstrated the historic bias of the BC Supreme Court against male parents.
[8] Finally, the Plaintiff refers to an Order made by Madam Justice MacKenzie, of the BC Supreme Court, involving service of a document: the failure of the Judge to provide reasons is said to be a violation of fundamental justice.
[9] In the present Federal Court proceeding the Plaintiff seeks, among other things, a retroactive prohibition bearing on the BC Supreme Court action; habeas corpus to quash the Orders of the BC Supreme Court as to the detention of the Plaintiff; mandamus including such to prevent the BC Supreme Court from using common law parens patriae powers and principles; an order that the Plaintiff be exempt from BC Supreme Court rule 39(25) which deals with, among other things, the requirement that custody, guardianship and family law matters proceed without a jury; assorted damages, including punitive damages in the amount of $10 million; and declaratory relief against the Crown, both Federal and Provincial, as to various failures of duty to ensure the equal treatment of the Plaintiff and the protection of the legal rights of the Plaintiff to life, liberty and security, to a fair hearing in accordance with the principles of fundamental justice and to enjoyment of property.
CONSIDERATION
[10] This Court has jurisdiction over only a Federal Crown: see the definition of the Crown in section 2 of the Federal Court Act. In this instance there is no jurisdiction over the Provincial Crown.
[11] This Court has no jurisdiction arising out of any misfeasance by the municipal police force of New Westminister of British Columbia: if that police force is responsible to the Crown, and I need not explore that issue, it would be the Provincial Crown, an entity beyond Federal Court jurisdiction.
[12] None of the decisions of the BC Supreme Court, upon which the Plaintiff bases his claim, have been appealed. Instead, the Plaintiff bases this action upon an alleged supervisory jurisdiction, on the part of the Federal Crown, over judges and masters of the BC Supreme Court. Here the Plaintiff relies upon Mills v. The Queen, [1986] 1 S.C.R. 863. One must keep in mind that Mills v. The Queen dealt with criminal matters. The Plaintiff has thus overlooked the fact that the Charter does not apply to a court order, issued in a civil dispute between private parties, nor are the courts "government" as defined in section 32 of the Charter: see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 600:
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... While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute. To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation. All cases must end, if carried to completion, with an enforcement order and if the Charter precludes the making of the order, where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter. In my view, this approach will not provide the answer to the question. A more direct and a more precisely-defined connection between the element of government action and the claim advanced must be present before the Charter applies.
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To the same conclusion as Dolphin Delivery, see also Young v. Young, [1993] 4 S.C.R. 3 at pages 8 and 9.
[13] Leaving aside the above passage from Dolphin Delivery, the Plaintiff refers to a passage in Mills (supra) at pages 971 and 972 in which he emphasizes that "... if it is the trial court that has been dilatory, some other court must have jurisdiction to enforce the rights accorded by the Charter.", the same situation being present "... where a court is an inappropriate forum to seek a remedy because it is itself implicated in the breach of a constitutional right, ...". The Plaintiff does not refer to the next sentence in that passage which is that "[i]n such cases, the competent court must be the superior court of the province in the exercise of its inherent jurisdiction.".
[14] The logical conclusion is that if the Plaintiff feels he received less than he was due, from the BC Supreme Court, a court with a full civil jurisdiction to apply in the case of Mr Legere, he should have taken an appeal to the Court of Appeal of British Columbia and, if appropriate, then to the Supreme Court of Canada, of course keeping in mind there is no allegation, as required in Mills (supra), that there is a connection between the Plaintiff's claim in his BC Supreme Court action and any element of government action or inaction.
[15] Early in this analysis I noted that the Plaintiff relied upon an alleged supervisory jurisdiction, on the part of the Federal Crown, over the judges and masters of BC Supreme Court. I have considered R. v. Valente, [1985] 2 S.C.R. 673 and the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 and while I recognize that both cases involved provincial court judges, there is much which is of application to judges and masters overall. The Queen v. Beauregard, [1986] 2 S.C.R. 56, which deals largely with judicial independence, is particularly instructive. Chief Justice Dickson, at page 69, points out that:
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21. Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle.
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Chief Justice Dickson went on to point out that "... particular care must be taken to preserve the independence of the judiciary from the executive branch (because the executive is so often a litigant before the courts) ..." (page 73). He also said:
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The role of our courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system. (Loc. cit.)
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The judiciary hold office during good behaviour. While judges and masters are appointed by the Crown they are not Crown servants: they cannot be either controlled by or given directions by the Crown, or by the Crown's ministers, or by Parliament, or by any government department. The members of the judiciary are independent and enjoy total immunity from court action based on anything done or said in the exercise of their judicial functions. There can therefore be no vicarious liability on the part of the Crown.
[16] Taking all of this into consideration there is no claim against the Federal Crown, for there is no cause of action which can be based on a failure to properly supervise the judges and masters of the BC Supreme Court. Indeed, it is plain and obvious that the claim discloses no reasonable cause of action. Beyond doubt the claim cannot succeed. Thus the claim must be struck out.
[17] There is also a second and most basic reason why the action is plainly, obviously and beyond doubt an action which will not succeed. To entertain the Plaintiff's claim to prerogative relief bearing on the various decisions the BC Supreme Court would be to allow a collateral attack upon that court. This characterization, as a collateral attack, is so even though the claim is filed as one against the Federal Crown. A good point from which to begin is [1983] 2 S.C.R. 594">R. v. Wilson, [1983] 2 S.C.R. 594. In [1983] 2 S.C.R. 594">Wilson the provincial court went behind a Court of Queen's Bench's order allowing a wiretap. Without the wiretap evidence the Crown's case collapse and the accused was acquitted. The Court of Appeal was of a contrary view, holding that the provincial court could not collaterally attack an order made by a superior court of record, so long as that order has not been reversed.
[18] In [1983] 2 S.C.R. 594">Wilson the Supreme Court cited a number of authorities supporting what the Court referred to as the rule against collateral attack. A general principle is best set out in [1983] 2 S.C.R. 594">Wilson at page 599, where Mr Justice McIntyre referred to the rule against collateral attack:
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It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.
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To this rule against a collateral attack of the order of a court I would add a passage from Canadian Transport (U.K.) Ltd. v. Alsbury, [1953] 1 D.L.R. 385 (B.C.C.A.), which was quoted with approval with Mr Justice McIntyre, in [1983] 2 S.C.R. 594">Wilson (supra)at page 600:
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... the order of a Superior Court is never a nullity; but, however wrong or irregular, still binds, cannot be questioned collaterally, and has full force until reversed on appeal.
[Page 406]
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[19] I would also refer to Creighton v. Franko (1998), 151 F.T.R. 21 (F.C.T.D.), upheld (1998) 155 F.T.R. 303 (F.C.T.D.), for the proposition that there can be no collateral attack on judgments of courts of competent jurisdiction and that "the Federal Court of Canada has no jurisdiction to declare an order or judgment of another superior court, acting within its jurisdiction, to be invalid.". See also the fuller discussion on collateral attack on judgments of superior courts at page 33 and following in Creighton.
[20] The rule, as applied in the present instance, is that there may be no collateral attack upon the unappealed and valid BC Supreme Court orders. These Orders are made by a court of competent jurisdiction, by superior court judges and by a master who are immune from suit: see for example Rivard v. Morier, [1985] 2 S.C.R. 716 at 737 and following. The rule against collateral attack goes to the very underpinnings of the Plaintiff's case and thus it must be struck out without leave to amend.
[21] In passing, I also note the view of Mr Justice Chouinard, who wrote for five of the seven judges of the Supreme Court panel in Morier, at page 745, that allegations similar to those in the present instance are not allegations upon which an action for damages may rest. This completely removes the underpinnings of Mr Legere's claims against the Crown for damages. Moreover it is clear from the pleadings that the allegations against Her Majesty the Queen relate to judicial acts in the context of proceedings before the Supreme Court of British Columbia. Overall the pleadings, plainly, obviously, and beyond doubt, fail to disclose a reasonable cause of action.
[22] The action is struck out and dismissed, without leave to amend. The Defendant's motion does not seek costs. Thus none are awarded.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
1 March 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-46-03
STYLE OF CAUSE: Harold James Legere v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 12 May 2003
AMENDED REASONS
FOR ORDER BY: Hargrave P.
DATED: 1 March 2004
APPEARANCES:
Harold James Legere PLAINTIFF on his own behalf
Ken Manning FOR DEFENDANT
SOLICITORS OF RECORD:
Harold James Legere PLAINTIFF on his own behalf
Vancouver, British Columbia
Morris A Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Vancouver, British Columbia
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