Date: 20110419
Docket: A-151-10
Citation: 2011 FCA 141
CORAM: PELLETIER
J.A.
LAYDEN-STEVENSON
J.A.
MAINVILLE
J.A.
BETWEEN:
GARY SAUVE
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Royal Canadian Mounted Police (RCMP),
Marc FRANCHE (RCMP), Larry TREMBLAY
(RCMP),
Louis DORAIS (RCMP)
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
Mr.
Sauvé appeals to this Court from an order of Madam Justice MacTavish of the
Federal Court (the Federal Court Judge or the Judge) striking all but one
paragraph of his statement of claim against Her Majesty the Queen in right of
Canada (on behalf of the Royal Canadian Mounted Police) and three named individuals
who are members of that organization.
[2]
In
the course of certain domestic litigation, Mr. Sauvé made certain comments
which resulted in his being convicted of two counts of criminal harassment. The
statement of claim in issue in this appeal is one of a number of claims which
Mr. Sauvé has initiated and which are pending in the courts as a result of the
events surrounding Mr. Sauvé’s arrest, detention, and conviction in the course
of those criminal proceedings.
[3]
The
Federal Court Judge struck out a series of paragraphs of Mr. Sauvé’s statement
of claim on the basis that the actions complained of were those of provincial
officials responsible for the administration of justice. The Judge found that
Mr. Sauvé did not plead any facts which would make the Federal Crown liable for
the acts of those officials. The Federal Court Judge also struck out a number
of paragraphs of the statement of claim which allege defamation on the ground
that Mr. Sauvé did not plead that the defamatory statements were untrue. The
Judge also struck out those paragraphs which alleged that two of the named
individuals defamed Mr. Sauvé when they made certain statements in their
testimony in the criminal trial on the ground that testimony given in court
proceedings is subject to absolute privilege. Certain paragraphs alleging a
conspiracy to injure were struck out on the basis that the required elements of
the cause of action in conspiracy were not pleaded.
[4]
The
remaining paragraphs of Mr. Sauvé’s claim, with one exception, were struck out
on the basis that the statement of claim was an abuse of process in that it was
an attempt to re-litigate, in the civil context, the findings in the criminal
proceedings.
[5]
On
this appeal, Mr. Sauvé emphasized three paragraphs with respect to which he
wished to see the order of the Federal Court set aside, with leave being
granted to amend if necessary.
[6]
The
first was paragraph 28 of his claim which provides as follows:
On or about the 5th day of
January 2005, the plaintiff submits that his life and that of his family were
placed in danger by being placed in a cell with a well known violent offender. This
offender assaulted the plaintiff, threatened to poke his eyes out with a pencil
while he slept, went on rages by throwing things at and hitting the plaintiff.
The defendants knew or ought to have known that by placing a police officer in
a cell with a known violent inmate was grossly negligent, dangerous and placed
not only his life in danger but those of his family. The plaintiff respectfully
submits that he believed that he was going to be killed. The plaintiff further
states that it took over one month to remove him from said cell.
[7]
This
was one of the paragraphs which the Federal Court struck out on the basis that
the matters complained of were within the jurisdiction of the provincial
authorities. In argument, Mr. Sauvé advised us of additional facts, which do
not appear in his pleadings, which he says would be sufficient to establish his
claim against the defendants in this action. Those facts were that R.C.M.P. officers
visited the provincial correction centre to assure themselves of his safety and
were aware of the fact that he had been placed in a cell with another inmate
but did not intervene to protect him. In addition, Mr. Sauvé affirmed that when
he was remanded in custody, an order was made that he be placed in
administrative segregation and, in any event, a police officer who is
incarcerated is always segregated for his own protection. There is no record of
any court order on file.
[8]
In
applications to strike a statement of claim, no evidence is to be filed. The
facts pleaded are taken to be true and a determination is made if those facts
disclose a cause of action. That is what the Federal Court did in this case. We
are now asked to consider facts other than those which are in the pleadings on
the basis that, by permitting an amendment to the pleadings to include those
facts, we would allow the true merits of the case to be heard. The difficulty
is that we are asked to take into account facts (or allegations of facts) which
do not appear in the pleadings, which were not before the Federal Court Judge
and which do not appear in the record itself.
[9]
We
are bound by the same jurisprudence as that which the Federal Court Judge set
out at paragraphs 8 to 13 of her judgment and, on the basis of that
jurisprudence, we can come to no other conclusion than did the Federal Court
Judge.
[10]
Mr.
Sauvé emphasized the jurisprudence dealing with the Court’s obligation to allow
pleadings to be amended so as to allow justice to be done. The jurisprudence
cited by Mr. Sauvé in his Memorandum deals with various situations where
amendments to pleadings were sought under Rule 75, or its equivalent in other
jurisdictions. The case before us is brought under Rule 221(1) of the Federal
Court Rules, SOR/98-106.
[11]
Mr.
Sauvé also asked that paragraph 38 of his statement of claim be “reinstated”,
with leave to amend if necessary. Paragraph 38 provides as follows:
38. On the 18th day of July
2005, the defendants served a subpoena to the plaintiff’s address to attend a
criminal court trial to testify as a police officer. The subpoena disclosed the
plaintiff’s personal home address and police work phone number. The plaintiff
respectfully submits and claims separate damages for invasion of privacy,
intrusion upon plaintiff’s solitude, harassment, conspiracy to injure and
breaches pursuant to the Charter. The plaintiff sustained stress, worry, fear
and anxiety.
[12]
Mr.
Sauvé provided us with further facts with respect to this allegation as well. He
indicated that the trial in question was one involving members of organized
crime and that the subpoena with his home address on it was placed on the court
file where it was available to the accused and their friends. In the Federal
Court’s reasons for decision, the motions judge notes that “…there is no
assertion in the pleading that this information was ever disclosed to a third
party”. The additional information provided to us by Mr. Sauvé seeks to
undermine this finding by the Federal Court. As noted above, we are bound by
the same jurisprudence as the Federal Court Judge and, as in the case of
paragraph 28, we can come to no other conclusion than the one to which she
came.
[13]
Mr.
Sauvé also asked that paragraph 34 be allowed to stand since it is intimately
connected with paragraph 33 of his claim, the sole paragraph which the Federal
Court allowed to stand. Those two paragraphs are reproduced below:
33. On or about the 30th day of
November 2004, the plaintiff submits that the defendants caused damages to his
person by serving a subpoena to the plaintiff while incarcerated and by removing
him out of segregation to attend the Ottawa Court House to testify as a police
officer, for and on behalf of the RCMP and the Ottawa Police Services with
respect to a criminal case involving organized crime. The plaintiff feared for
his safety and that of his family by increasing the risk by exposing his
identity as a police officer. The plaintiff sustained fear, stress, anxiety,
emotional trauma, loss of reputation, loss of integrity, dignity, respect,
humiliation, embarrassment and degradation. The Plaintiff submits that being
experienced and well trained, the defendants knew or ought to have known that
their actions and/or inactions would cause damages to the plaintiff.
34. The Plaintiff also claims
legal costs incurred whereby his defense lawyer had to attend said trial to
ensure his protection of his person and rights and those of his family, his
integrity as a police officer from the lawyer representing those charged and further
to protect his rights that he would not be abused or exposed to unwarranted
attacks. The plaintiff submits that the defendants failed to provide such
assistance to the plaintiff and as such, has incurred additional legal fees.
[14]
Paragraph
34 itself does not disclose a cause of action; it particularizes the damages
suffered as a result of the breach which Mr. Sauvé pleads in paragraph 33. Paragraph
34 was struck out together with the other paragraphs of the statement of claim
which the Federal Court judge found were an abuse of process. With respect, if
the Federal Court Judge was prepared to allow Mr. Sauvé to plead a cause of
action arising out of the facts recited in paragraph 33, she should logically
have allowed him to plead the damages flowing from that cause of action. I
would allow this paragraph to stand.
[15]
Finally,
though Mr. Sauvé did not stress this issue, the Court raised the question of
the allegation of wrongful detention which is pleaded at paragraphs 11 and 12
of the statement of claim. In those paragraphs, Mr. Sauvé puts into issue the
lawfulness of his detention at his place of employment by members of the
R.C.M.P. This allegation was swept away with the others which put into question
the correctness of Mr. Sauvé’s criminal conviction. When counsel for the Crown
was asked about the lawfulness of this detention, she replied that it was done
in the R.C.M.P.’s role as a police force assisting another police force to
execute a warrant. There is nothing in the statement of claim which discloses
the existence of a warrant for Mr. Sauvé’s arrest at the time he alleges he was
detained.
[16]
In
my view, this allegation is separate and distinct from the pleadings which are
a collateral attack on Mr. Sauvé’s criminal conviction. Mr. Sauvé alleges that
he was wrongfully detained. Whether the R.C.M.P., acting either in their
capacity as Mr. Sauvé’s employer or in their capacity as a police force, had
the authority to detain him in the circumstances described in the statement of
claim is a matter of defence, not a matter which goes to the existence of a
valid cause of action. I would therefore allow the appeal to the extent of
allowing paragraphs 1 to 7, 10, 11 and the first sentence of paragraph 12 of
the statement of claim to stand.
[17]
Since
Mr. Sauvé has been successful in the appeal, I would award him his
disbursements.
“J.D.
DENIS PELLETIER”
“I
agree
Carolyn Layden-Stevenson J.A.”
“I
agree
Robert M. Mainville J.A.”
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