Date:
20071129
Docket:
A-376-06
Citation:
2007 FCA 380
CORAM: LINDEN J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
EDWIN PEARSON
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
LINDEN J.A.
[1]
This
appeal arises out of events that transpired in 1989, which in 1991 led to the
Appellant’s conviction on four counts of trafficking in narcotics. Following
these convictions, there were many complex legal proceedings including two
appeals to the Quebec Court of Appeal, one of them leading to a new hearing on
an issue of entrapment, and an appeal to the Supreme Court of Canada. The fresh
entrapment hearing ended unsuccessfully for the Appellant. He served time in
custody as a result of his convictions.
[2]
As
a result of all of this, the Appellant’s life and that of his family was
negatively affected for the last 18 years, which he blames on the Crown’s
failure to disclose certain key documents and allegedly false evidence given by
certain RCMP officers at his criminal trial.
[3]
The
Appellant commenced this action in 1999 seeking $13,000,000 in damages under
section 24 of the Canadian Charter of Rights and Freedom for the Crown’s
violations of sections 7 and 11 of the Charter.
[4]
After
a lengthy trial that was held in Toronto from October 24-26, 2005 and in Montreal from
November 17-25, 2005, the Trial Judge issued his 45 page decision dismissing
the action, dealing in considerable detail with the legal issues that had been
raised.
[5]
During
the hearing of this appeal, the procedural issues of prescription and
collateral attack, which were dealt with by the Trial Judge, were canvassed at
length by Mr. Pearson, who was self-represented, and by counsel for the Crown.
However, in the light of our view on the merits of the appeal, we need not deal
with these two procedural matters here.
[6]
While
it is clear that a violation of the Charter may sometimes ground an
award of civil damages pursuant to section 24, this is not automatic. The
jurisprudence is clear that to recover damages something more than a technical
violation of the Charter is required. It is necessary to demonstrate
that there has been conduct that was done in bad faith, clearly wrong or which
amounted to an abuse of power. Merely acting in an unconstitutional way, if it
is done in good faith and without abuse of power, does not lead to civil
liability, (See Mackin v. New Brunswick; Rice v. New
Brunswick,
[2002] 1 S.C.R. 405, per Gonthier J. at paras. 78 and 79) even though there may
be other legal consequences. ((R v. Carosella), [1997] 1 S.C.R. 44.)
[7]
On
the facts of this case, as found by the Trial Judge, which findings of fact are
only reviewable if there is palpable and overriding error, the case for civil
damages has not been established. In paragraphs 70-88, the Trial Judge
explained that, after carefully considering the “documentary evidence and the
testimonies of the various witnesses called by plaintiff, …Mr. Pearson has not made
out this claim for damages”. (para. 70) While there were elements of the
Crown’s evidence that contained “discrepancies of no significance”, the Trial
Judge held that the Appellant has not succeeded in his attempt to demonstrate
that the behaviour of the Crown agents (Prosecutors and RCMP officers) amounted
to the type of conduct calling for an award of damages. (para. 76) Further, he
explained that the “evidence (both testimonial and documentary) that was laid
before me does not demonstrate an infringement of Mr. Pearson’s rights, nor
does it show the kind of misconduct that could justify the remedy sought by the
plaintiff”. (para.76) We were informed that there were 8 large binders of
documents which the Trial Judge indicated were all perused and which contained
most of the disputed material, disclosure of which had been sought earlier to
no avail by the Appellant. When, at the hearing of this appeal, he was asked by
this Court to respond to these factual findings by the Trial Judge, the
Appellant was unable to satisfy the Court’s inquiry. We can, therefore, discern
no basis for interfering with these factual findings.
[8]
The
Trial Judge, in arriving at this conclusion, correctly outlined the law in this
area relying primarily on the cases Mackin, supra, and Beliveau St.
Jacques v. Fédération des employées et employés de service publics Inc.,
[1996] 2 S.C.R. 345. He concluded that, based on the legal
authorities, the “Crown prosecutors cannot be faulted for not having disclosed
all the documents requested by Mr. Pearson”. Consequently, he held, “an award
of damages would not be appropriate and just in the circumstances”. (para. 86)
I can see no basis for interfering with the Trial Judge’s conclusions on the
law.
[9]
The
Trial Judge also found that the “allegations of perjured evidence and
fraudulent documents having been tendered by various witnesses are simply
without merit”. After having studied all the evidence, including the transcripts
of the evidence, the Trial Judge concluded that although there were some
“inconsequential discrepancies that are innocent in nature”, he had “heard
nothing that would lead him to conclude that the Crown wilfully, knowingly and
maliciously provided false evidence or condoned the tendering of fraudulent
documents”. (para. 87) I can see no basis for interfering with this finding.
[10]
The
Trial Judge also rightly decided that, even if there had been Charter
violations, evidence was required to show that these violations “caused” Mr.
Pearson to be convicted and imprisoned. (para. 60) In other words, there had to
be a “reasonable possibility that the disclosure affected the outcome of the
trial”. The Trial Judge, relying in part on the decisions of the Quebec Courts,
found that it was not proven that the non-disclosures and the alleged perjury
“may have had an impact on the verdict”. (paras. 62 to 69) This, too, was a
factual finding about the requisite element of causation, which manifests no
palpable and overriding error. I can see no basis for upsetting these factual
conclusions.
[11]
The
Trial Judge ended his analysis by opining that there was no infringement of the
Appellant’s constitutional rights nor was there any “reprehensible” conduct “to
the extent required to call for damages”. (para. 88) If the Appellant was,
without fault, impaired in presenting his entrapment defence, he was “granted
an appropriate remedy in obtaining a new trial limited to the issue of
entrapment” by the Quebec Court of Appeal. The fact that he chose not to avail
himself of the documents disclosed to him at that time because they had been
“vetted”, was the Appellant’s decision and he must accept the consequences that
flowed from that choice, sad as that has been for him and his family.
[12]
This
appeal will therefore, be dismissed, but in all the circumstances of the case,
without costs.
“A.M. Linden”
“I agree
K. Sharlow”
J.A.
“I agree
C.
Michael Ryer”
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-376-06
(AN
APPEAL FROM THE JUDGMENT OF de MONTIGNY J., DATED JULY 28, 2006, IN FEDERAL
COURT FILE NUMBER: T-290-99)
STYLE OF CAUSE: EDWIN PEARSON v. HER MAJESTY
THE
QUEEN
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 28, 2007
REASONS FOR JUDGMENT: LINDEN J.A.
CONCURRED IN BY: SHARLOW J.A.
RYER J.A.
DATED: NOVEMBER 29, 2007
APPEARANCES:
|
Mr. Edwin Pearson
|
FOR THE APPELLANT (Self-Represented)
|
|
Mr. Jacques
Savary
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Mr. Edwin Pearson
Burlington,
Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
|
FOR THE
APPELLANT (Self-Represented)
FOR THE RESPONDENT
|
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