Date: 20010612
Docket: T-2106-97
MONTRÉAL, QUEBEC, JUNE 12, 2001
Before: RICHARD MORNEAU, PROTHONOTARY
Between:
GAÉTAN FOURNIER
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
JUDGMENT
This action by the plaintiff is dismissed with costs.
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Richard Morneau
Prothonotary
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Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
[2] The starting-point of the plaintiff's action is the judgment by Judge Jean Bécu of the Court of Quebec in case 125-73-0000002-966 on February 14, 1997, in which the plaintiff was acquitted of the charge that on June 22, 1996 he infringed one of the conditions of his fishing licence by using 20 nets to fish with a mesh size smaller than that prescribed in s. 22(7) of the Fishery (General) Regulations and s. 78(A) of the Fisheries Act.
[3] As Beauregard J.A. of the Quebec Court of Appeal noted in Procureur général du Québec v. Benoît Proulx, [1999] R.J.Q. 398, at 434, the test applicable in the case at bar is as follows:
[TRANSLATION]
I concur in the view of LeBel J.A. that the principle in Nelles v. Ontario applies in Quebec: for an action for damages to succeed following an acquittal, the plaintiff must prove not only that he was prosecuted without reasonable and probable grounds, but that in authorizing the information the prosecutor demonstrated malice, a concept which Lamer J. defined as follows in that case, [1989] 2 S.C.R. 170, at 194:
. . . a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice.
And I agree that an obvious absence of reasonable and probable grounds for the guilt of the accused may amount to malice.
[4] In the case at bar, if we stop our assessment of the facts at June 25, 1996, there is no doubt in my mind that the evidence in the record, and especially the affidavit of Jean-Marie Doiron, shows that the latter - who was acting at all relevant times as a prosecutor of the Attorney General of Canada - was justified in relying completely on the conclusions of the measurement done by a representative of Fisheries and Oceans Canada, Marcel Boucher, and considering that he was justified in going ahead and bringing a prosecution against the plaintiff.
[5] However, according to the plaintiff a fact subsequent to June 25, 1996, namely the measuring of the plaintiff's nets by André Nicolas of Fisheries and Oceans Canada on June 28, 1996 - measurement which showed that the nets were in accordance with the Regulations - was evidence in the prosecutor's file that contradicted the evidence accumulated by Mr. Boucher.
[6] In the plaintiff's submission, this contradictory evidence meant that the prosecutor should clearly not have prosecuted the plaintiff. By going ahead the prosecutor, and hence the defendant, abused his right to bring a criminal prosecution.
[7] The plaintiff did not submit any positive and independent evidence showing that by authorizing the information the prosecutor demonstrated malice within the meaning of Nelles and Proulx, supra. Accordingly, in order to succeed in the action at bar the plaintiff had to establish, again in accordance with the said cases, that the prosecutor brought the prosecution when he clearly had no reasonable and probable grounds in view of the measurement done on June 28, 1996, which the plaintiff regarded as evidence contradicting that of June 22, 1996.
[8] As I understand the evidence, the plaintiff has clearly failed in this task.
[9] Mr. Doiron's affidavit and the cross-examination of the latter make it clear that in analyzing the file he was fully aware of the measurement of June 28, 1996. However, all of the evidence he had in the file led him to believe that at the time the indictment was laid, and at all relevant times thereafter, the judge in a criminal proceeding would conclude that the measurement of June 28 could not in all logic be explained except by a changing of nets done by the plaintiff when he went to sea on June 25, 1996. The disposition of the nets on different fishing lines and the loading capacity of the hull of the plaintiff's vessel reinforced his belief that the judge in a criminal case would take this approach, as he had done. In this sense, the measurement of June 28, 1996 did not become evidence squarely opposed to the measurement of June 22, thus demolishing the latter evidence. Mr. Doiron was also well aware that in a criminal proceeding the plaintiff could testify that he had not changed his nets between June 22 and 28, 1996 for nets of the regulation size. However, Mr. Doiron expected that if the plaintiff gave such testimony it would not be believed by the judge in the criminal proceeding and his approach to the case would still prevail.
[10] Mr. Doiron's approach to the measurement on June 22 and 28, 1996 seems logical and reasonable and I certainly cannot conclude that in this respect his approach amounted to seeking to obtain a conviction of the plaintiff when reasonable and probable grounds were clearly absent.
[11] In view of my conclusion that the defendant is not liable, there is no need for me to rule on the quantum of damages which the plaintiff alleges he suffered as a result of the prosecution laid against him. However, I would like to add that if my reasoning had led me to rule on the latter, I would have concluded that the plaintiff had not presented evidence to support the majority, or even all, of the damage.
[12] For all these reasons, this action by the plaintiff will be dismissed with costs.
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Richard Morneau
Prothonotary
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MONTRÉAL, QUEBEC
June 12, 2001
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
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Federal Court of Canada
Trial Division
Date: 20010612
Docket: T-2106-97
Between:
GAÉTAN FOURNIER
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
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FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: T-2106-97
STYLE OF CAUSE: GAÉTAN FOURNIER
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: Sainte-Anne-des-Monts, Quebec
DATE OF HEARING: May 30, 2001
REASONS FOR JUDGMENT BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR JUDGMENT: June 12, 2001
APPEARANCES:
Yves Roy for the plaintiff
Bernard Letarte for the defendant
Rosemarie Millar
SOLICITORS OF RECORD:
Chouinard & Roy for the plaintiff
Sainte-Anne-des-Monts, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
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