Levreault v. Canada, 2003 FCT 121

Date: 20030204

Docket: T-561-00

Neutral Citation No.: 2003 FCT 121

BETWEEN:

            ELAINE LEVREAULT, ARMAND LEVREAULT

                     AND SHAILOS LEVREAULT, BY HER

            LITIGATION GUARDIAN ELAINE LEVRAULT

                                                                                                    Plaintiffs

                                                    - and -

      HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                                                  Defendant

                     REASONS FOR ORDER AND ORDER

HUGESSEN J.

[1]    This is a motion for summary judgment brought by the Crown defendant seeking to strike out one of the claims set out in paragraph 8 of the statement of claim, namely the plaintiff's allegation that his arrest was "without proper basis or foundation." (The other part of the plaintiff's claim is based on alleged negligence and excessive use of force in carrying out the arrest).

[2]    The Crown's affidavit evidence establishes that the arrest of which the plaintiff complains was effected upon a warrant issued by a justice upon an information sworn by a member of the RCMP. While there can be no doubt of the plaintiff's right to show that the said warrant was invalid, it is equally clear that on this motion the burden is upon him to make that showing. He has altogether failed to do so.

[3]    The plaintiff raises a number of allegations which are entirely irrelevant to the question of the warrant's validity. He states that, prior to his arrest, he was never questioned by any police officer regarding the allegations against him, and that if he had been, he would have provided proof that he did not commit the offence with which he was later charged. He further states that, between the time of his arrest and the time the charge was withdrawn three months later, there was no evidence presented that supported the charge against him. As well, he states that when the charges were withdrawn, some seized firearms were returned to him. He further says that the alleged victim of the crime for which he was arrested was known in the community to be a paid informant, and therefore, his evidence is unreliable.

[4]    The plaintiff states that, the night of his arrest, he was never advised that there was an arrest warrant. He points out that he was arrested late in the evening and asserts that he was not advised of his right to counsel at the time of his arrest. He submits that the police failed in their duty to properly investigate the allegations and obtained an arrest warrant on evidence they knew or ought to have known was neither true nor credible.

[5]                 The plaintiff asserts that his sections 8, 9 and 10 Charter rights were breached and, as a result, the arrest was unlawful. He also asserts that section 29(2) of the Criminal Code, which provides that the arrest warrant must be given to the person being arrested where it is feasible to do so, was not respected and, as a result, the arrest was tainted.

[6]                 Where, as in the present case, an arrest is made on a warrant issued by a justice under section 507 of the Criminal Code, the question of whether there was a proper basis and foundation for an arrest goes to whether there were reasonable and probable grounds for the justice to believe that the plaintiff had committed an offence.

[7]                 The fact that the plaintiff was not provided with evidence supporting the charge against him, that the charges were withdrawn three months later, that his section 8, 9 and 10(b) Charter rights were allegedly violated, that he was not informed of the warrant at the time of his arrest, that the arrest occurred late at night, and that his seized guns were later returned to him are all irrelevant to the question of whether the arrest was without proper foundation or basis since they do not go to the question of whether there were reasonable and probable grounds to believe that the plaintiff had committed an offence. The fact that some of those allegations might give rise to certain rights or recourses on the plaintiff's part if he were standing trial for the offence for which he was arrested does not establish that the arrest itself was without foundation or basis.

                                                  ORDER

The plaintiff's claim that he was arrested "without proper basis or foundation" is dismissed. The defendant is entitled to the costs of the present motion to be assessed and payable forthwith and in any event of the cause.

     

                                                                                                                                                                                            

                                                                                                           Judge                              

                    

Ottawa, Ontario

February 4, 2003

                             FEDERAL COURT OF CANADA

                                          TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

  

COURT FILE NO.:                   T-561-00

                                                                                                                   

STYLE OF CAUSE:                  Elaine Levreault et al v. Her Majesty the Queen

  

Pursuant to Rule 369 (in writing) :           Ottawa, Ontario

  

REASONS FOR ORDER AND ORDER

OF THE HONOURABLE MR. JUSTICE HUGESSEN

  

DATED:                                      February 4, 2003                                   

  

APPEARANCES:

Alain J. Hugue                                        FOR THE PLAINTIFFS

  

Joel I. Katz                                                            FOR THE DEFENDANT

  

SOLICITORS ON THE RECORD:

Alain J. Hogue &

Associates

Winnipeg, Manitoba                                             FOR THE PLAINTIFFS

Morris Rosenberg

Deputy Attorney General of Canada                   FOR THE DEFENDANT