Date: 20031121
Docket: T-1227-00
Citation: 2003 FC 1377
BETWEEN:
ADRIAN JOHN WATSON
Plaintiff
and
HER MAJESTY THE QUEEN, AS REPRESENTED
BY THE ROYAL CANADIAN MOUNTED POLICE
Defendant
REASONS FOR ORDER
HARGRAVE P.
[1] These reasons arise out of an action claiming agreed damages for injury to the Plaintiff, an injury occurring when a police pursuit of the Plaintiff concluded in a cloud of dust and a collision at the dead end of a prairie road.
[2] The case raises various interesting questions including, the liability of a police officer arising out of a collision during a pursuit. A second question is whether, given that the matter was litigated in the criminal law context, resulting in various convictions, including for dangerous driving and a restitution order for damage to the police vehicle, as set out in the reasons of an Alberta Provincial Court judge, there are any circumstances which would allow me to re-hear and decide the outcome anew. I say this because the Supreme Court of Canada teaches, in Canadian Union of Public Employees, Local 79 v. City of Toronto and Douglas C. Stanley, a 6 November 2003 decision, neutral citation 2003 S.C.C. 63, that to ignore the earlier proceeding would be an abuse of process, to be avoided in the interests of the integrity of the adjudicative function of the courts.
[3] In the result that the claim is dismissed. I will now consider the consider this in detail, beginning with some relevant facts, and two preliminary issues.
PROCEDURAL POINTS AND RELEVANT FACTS
[4] This matter began as a regular action, complete with examination for discovery, but on agreement as to damages, was designated a simplified action. The majority of the facts which I have relied upon come from the evidence of the Plaintiff, Adrian Watson, and of Constable Peckham of the Royal Canadian Mounted Police, however some come from the 17 April 2000 Reasons for Judgment of Mr. Justice Clozza of the Provincial Court of Alberta. These sources give rise to two preliminary points.
Preliminary Points
[5] I allowed into evidence a synopsis of the criminal history of Mr. Watson, on the basis that it could go to the truthfulness of Mr. Watson as a witness. As matters turned out the record was not relevant: allowing for minor variations in testimony, including as to the very subjective matter of time estimates during periods of stress, the evidence of both Mr. Watson and Constable Peckham was quite similar, containing no irreconcilable differences. Indeed, both were able and good witnesses. Thus it is with a substantial measure of confidence that I set out the facts based on the evidence of the two witnesses.
[6] The second preliminary point was the extent to which I might rely on the reasons of Mr. Justice Clozza of the Alberta Provincial Court who, as I have indicated, convicted Mr. Watson of dangerous driving and ordered restitution for damage done to the police vehicle at the conclusion of the pursuit, the pursuit and concluding accident giving rise to the present claim for damages by Mr. Watson.
[7] Counsel for Mr. Watson felt that the Provincial Court reasons were prejudicial, involved additional witnesses and being concerned with criminal matters, were not relevant.
[8] Canadian Union of Public Employees v. City of Toronto (supra) involved the earlier conviction of a recreation instructor for the City of Toronto on a charge of sexual assault, resulting in a jail sentence, confirmed on appeal. Subsequently the recreation instructor grieved his dismissal by the City of Toronto, claiming that the sexual assault of the child had never occurred. The arbitrator decided that what he referred to as a presumption, raised by the criminal conviction, had been rebutted and that the recreation instructor had been dismissed without just cause. All of this engaged the doctrine of abuse of process in the sense that the earlier and final conclusion of a competent court should only be disturbed in specific limited circumstances. Here I would refer to paragraphs 50 through 52 of City of Toronto:
50 It has been argued that it is difficult to see how mounting a defence can be an abuse of process (see M. Teplitsky, "Prior Criminal Convictions: Are They Conclusive Proof? An Arbitrator's Perspective", in K. Whitaker et al. (eds.), Labour Arbitration Yearbook 2001-2002 (2002), vol. 1, 279. A common justification for the doctrine of res judicata is that a party should not be twice vexed in the same cause, that is, the party should not be burdened with having to relitigate the same issue (Watson, supra, at p. 633). Of course, a defendant may be quite pleased to have another opportunity to litigate an issue originally decided against him. A proper focus on the process, rather than on the interests of a party, will reveal why relitigation should not be permitted in such a case.
51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding , the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.
These passages bring to the fore the concept that to relitigate a decided matter is an abuse because such relitigation can only undermine the integrity of the adjudicative process.
[9] It follows that to determine the relevance of the initial conviction, to the subsequent proceeding, one ought to examine the reasons given for the initial conviction. Relevant here is Trang v. Alberta (Director, Edmonton Remand Centre), [2003] 2 W.W.R. 79 (Alta. Q.B.). There inmates of the Edmonton Remand Centre sued the director of the remand centre, alleging pervasive ill treatment of inmates. The evidence upon which the Applicants wished to rely included the reasons for findings of guilt and for sentencing. Mr. Justice Marceau pointed out, at paragraph 23, that under the Alberta Evidence Act certificates of conviction and essential findings were admissible. While he acknowledged that a conviction would not be admissible as prima facie proof of every factual finding made in an earlier criminal proceeding, those necessary for the Court's determination of the charge were admissible (see paragraph 46 and following). He went on to admit "not only the findings going to the conviction but the evidence of the surrounding circumstances that, while not essential to establishing guilt, are substantial." (paragraph 50). He summed this up as at paragraph 61 as follows:
The fact of the convictions and the essential findings upon which the convictions were based, determine beyond a reasonable doubt by a court of competent jurisdiction, are to be afforded a high degree of deference. They are not subject to relitigation. The non-essential findings, not held to the same standard of disability, are to be given some deference. Certainly, as a minimum, they provide prima facie proof of the underlying circumstances, and strong evidence would be required to refute those findings.
This again points to the relevance and admissibility of the reasons of Mr. Justice Clozza, provided I keep in mind that in some instances facts found in the earlier proceeding stand as prima facie proof and in other instances, and here I refer to Canadian Union of Public Employees v. Toronto (supra) at paragraph 52, ought only to be disturbed if findings in the initial proceeding are tainted by fraud or dishonesty, or where there is fresh or new evidence, previously not available, result in a conclusive impeachment, or when fairness requires that the original result should not be binding in a new context. I now turn to the relevant facts as such.
Facts Leading to the Injury to the Plaintiff
[10] At about 10:00 p.m. on 26 October 1999 Constable Peckham was on patrol in the town of Didsbury, Alberta, in a marked RCMP vehicle. He saw a vehicle, which subsequently turned out to be that owned and driven by Mr. Watson, go through a stop sign without stopping. Constable Peckham therefore made a U-turn and put on his vehicle's emergency dome lights, his intention being to speak to the driver about going through the stop sign.
[11] On cross-examination Mr. Watson said that until the police car made a turn he had been going to a friend's house to drop off an alarm clock, but when he saw the police car following him, with its lights on (because he had his stereo on loud he did not know whether the police car had its siren on) and although he was aware the police were following him and wanted him to stop, he thought he had a chance to make a run for it, being concerned about driving without insurance.
[12] Mr. Watson then ran through another stop sign, at a higher rate of speed. Constable Peckham turned on all of his vehicle's emergency equipment, including sirens and advised the Red Deer detachment of the RCMP.
[13] Constable Peckham pursued Mr. Watson through the town of Didsbury at up to 70 to 80 km/h. He was able to get close enough to read the licence plate, enabling him to put in a call to his dispatcher requesting information on who owned the vehicle. Mr. Watson then ran a third stop sign and proceeded onto the highway reaching speeds of 90 to 100 km/h.
[14] At one point during the pursuit along the highway Mr. Watson slowed to about 40 km/h, apparently to pick up the car's stereo system which had fallen off of the top of the dashboard and was underfoot in amongst the brake and gas pedals. At that point Constable Peckham activated what he called the "take-down lights" being bright lights on the roof of his vehicle enabling him to see inside Mr. Watson's vehicle, for he was under the impression that Mr. Watson was going to stop. However the pursuit resumed, with Mr. Watson subsequently turning down a gravel and dirt road. Constable Peckham was able to pick up the name of the road, Range Road 201, when he turned off the highway, but clearly neither he nor Mr. Watson observed a dead end sign on the other side of the entrance to Range Road 201.
[15] Constable Peckham's evidence is that is was a clear, dark evening, with no moon, five degrees below zero Celsius, with no wind and very dry. Until he turned onto the gravel and dirt road Constable Peckham felt that he was not putting himself, the public or Mr. Watson at any risk by continuing the pursuit. However once onto the range road he began to fishtail. He admitted that this scared him and therefore this factor, together with the dust kicked up by Mr. Watson's vehicle, which reduced visibility, caused him to reduce his speed to less than 60 km/h. Constable Peckham proceeded with caution through the dust. He observed that Mr. Watson had gained a fair amount of distance on him. At that point in the pursuit he could make out the one operational taillight on Mr. Watson's vehicle. The taillight then disappeared, Constable Peckham concluding that the vehicle ahead had either turned or gone down into a dip. In reality, Mr. Watson had turned off his car lights for a short time. Here I note that Mr. Watson conceded that as a result of the accident his memory of what occurred that day, including before the accident, was a little fuzzy. However he knew that the RCMP vehicle had followed him onto the gravel road and that for some reason Mr. Watson turned his lights off, but had to turn them back on because he could not see where he was going. He was aware of the dust and visibility problem. At about that time Constable Peckham asked his dispatcher if they yet had information on the vehicle ownership, for he was contemplating discontinuing the pursuit, depending on the information as to ownership that he received.
[16] Very shortly after Constable Peckham completed his radio conversation Mr. Watson reached the apparent end of the road, although in reality it carried on as a rough 4-wheel drive road the entrance to which was partially hidden by trees. Mr. Watson then stopped his vehicle in the middle of the fairly narrow road. Here I would note that there were substantial shoulders on either side. Mr. Watson sat in the car for a moment and pounded the car's steering wheel in frustration. Mr. Watson said that at that point he knew the chase case over. Without looking, Mr. Watson stepped out the car door on the driver's side. His exit from the car coincided with the arrival of Constable Peckham, who had taken evasive action to avoid a square-on collision with Mr. Watson's vehicle, clipping the left rear corner of Mr. Watson's vehicle, damaging the right front corner of the police vehicle and either picking up Mr. Watson or pushing him ahead of the police vehicle, causing injury, including serious injury to his left leg. At the time of the collision the headlights on Mr. Watson's lights were on and indeed, were subsequently turned off by an RCMP officer who arrived later.
[17] I accept that Mr. Watson said to Constable Peckham, when Constable Peckham approached him after the accident, that he had done an exceedingly stupid thing, but I do not take this, in itself, to be an admission of liability.
[18] Constable Peckham said that the purpose of the chase was ultimately to stop the vehicle, but generally he stayed behind. He wished to get as much information as possible before deciding what to do. Indeed, if he had known that the driver, Mr. Watson, was a local person, he would have discontinued the pursuit. As it was he did not know the identity of the driver until after the accident.
[19] Constable Peckham acknowledges that the dust constituted a fairly thick fog, reducing visibility to somewhere between 25 metres and 100 metres. Shortly before the accident, he had put down his hand microphone and then saw Mr. Watson's car 2 or 3 vehicle lengths ahead. Thus he did not have time to stop, but merely, as I have indicated, to take evasive action, turning to the left.
[20] Taking all of the circumstances and the evidence into consideration, there are few, if any, conflicting views of what occurred. However, there are differing views as to the legal result of all of this.
CONSIDERATION
Liability of the Crown
[21] Counsel for Mr. Watson acknowledges that, pursuant to section 68.1 of the Alberta Highway Traffic Act R.S.A. 1980 c. H-7, a police vehicle, with its siren operating, has various liberties, including as to speed limits and contravention of rules of the road "...where, considering the circumstances, it is reasonable and safe to do so.". However he also points out that by section 68.1(6), none of the liberties permit the operator of the vehicle to act, considering the circumstances, in a negligent manner. Building upon this counsel for the Plaintiff urged that at issue is the negligence of Constable Peckham, in driving too fast under the circumstances, or in talking to his dispatcher from time to time, including shortly before the accident and that it was difficult to avoid liability in the case of a rear-end collision. However he did acknowledge that the dust thrown by Mr. Watson's vehicle during the pursuit down the gravel and dirt road was a problem. Counsel for the Plaintiff then went on to point to contributory negligence as another aspect.
[22] Certainly one should also, in addition to section 68.1 of the Act, take into consideration other portions of the Highway Traffic Act including section 179, dealing with any applicable onus arising out of a motor vehicle accident and other provisions as to speed being appropriate to the circumstances and section 123, dealing with careless driving. However, these provisions must be read in the light of the liberty granted a police vehicle and the obligation placed on a police vehicle under section 68.1 and in the context of the many cases dealing with police vehicles driving in pursuit.
[23] I do not agree with the Plaintiff's contention that pursuit had come to an end when the Plaintiff finally stopped and got out of his vehicle. The situation here is analogous to the doctrine of hot pursuit, where the pursuit is continuous so that pursuit and capture, along with the commission of the offence, form part of a single transaction: see for example R. v. Macooh (1993) 155 N.R. 44 at 60 and following where Chief Justice Lamer defines and explores the concept. I now turn to some of the pursuit cases.
[24] Counsel for the Crown submits that if a person's actions initiate a chase, that person becomes responsible for the outcome. While that is a generalization, it is a fairly universal concept, except in particular circumstances.
[25] Certainly Mr. Watson was negligent in a number of ways, including driving with one operational taillight, stopping in the middle of the road, in the dark, in dusty conditions which resulted in poor visibility and in stepping out of his vehicle without looking and, seemingly, without listening to determine the location of the police vehicle. However the key factor in determining liability are the cases involving pursuit by the police. This concept can bring about a harsh result. However police officers are justified in using as much force as is required in a pursuit situation, always keeping in mind that the most reasonable and least violent means of pursuing and catching someone should be paramount. Here I have in mind [1959] S.C.R. 615">Priestman v. Colangelo [1959] S.C.R. 615. In that case pursuing police officers attempted to shoot out the tire of the pursued vehicle and in the result they wounded the driver of that vehicle who then struck and killed two pedestrians. [1959] S.C.R. 615">Priestman thus involved a claim by administrators of the estates of the two bystanders who were killed. However the Court recognized that the duty imposed upon police officers, to arrest offenders, may at times involve necessary risk of injury to members of the public.
[26] In Pepper v. Hoover (1976) 71 D.L.R. (3d) 129, an Alberta Supreme Court decision, a car in which the Plaintiff was riding, being pursued by the police, came to stop in a ditch. The pursuing police vehicle slid into the ditch, collided with the pursued vehicle and caused injury to the Plaintiff. In that case the pursued vehicle was travelling in a manner dangerous to the public and at high speed. Even though the night was dark and the pursuing police constable was unfamiliar with the road, the Court held that the speed was reasonable and proper, having proper regard to the circumstances. However and perhaps in the present instance more important, the Plaintiff, who was a passenger, did not protest to his driver about what was happening, but accepted the dangers of driving at such a speed and the possibility of an accident through loss of control or even through the police vehicle catching up and colliding (see page 133). In the circumstances the Court was satisfied that the Plaintiff, as a passenger, gave real consent to the assumption of risk without compensation (loc. cit.). All the more, in the present instance, should the Plaintiff be deemed to have assumed risk, without compensation.
[27] Ontario (AG) v. Keller (1978), 86 D.L.R. (3d) 426 (Ont. H.C.), affirmed (1978) 94 D.L.R. (3d) 632 is generally of interest as a survey of pursuit cases. In that instance the driver of the pursued vehicle knew he was being pursued but was trying to escape apprehension. The police officer, who made claim, was injured. He succeeded for the manner in which the pursued car was driven was the proximate cause of the accident. Mr. Justice Hollingworth went on to quote a passage from an American case, MacDonald v. Hall 244 A (2d) 809, a decision of the Supreme Court of Maine, a passage which is particularly apt in the case of a fleeing driver found to be negligent:
He is bound to anticipate that such pursuit invites danger, not only to users of the highway, but to the occupants of the respective vehicles. He has induced a race in which only the officer has a right, by virtue of his sworn duty, to participate. Here by uncontroverted evidence the defendant was aware that a deputy sheriff was pursuing him. He was negligent as a matter of law.
(page 438)
[28] One may also make a comparison between the Keller case and the present, for in Keller, while the police constable was the injured party, having run into a telephone poll during a high speed chase, the driver of the pursued vehicle was found liable even though the police constable was aware that there were icy patches, that he had fishtailed and that he was driving with his left hand, holding his radio microphone with the other.
[29] Counsel for the Plaintiff refers me to a case in which a police constable had been injured in a high speed chase, but the driver of the pursued vehicle was held only 75% responsible, for by the time of the injury the chase had been well and truly finished for an appreciable time. However, the general comment of Mr. Justice O'Leary, of the Ontario Supreme Court, in Crew v. Nicholson (1987) 1 M.V.R. (2d) 284 is pertinent.
I turn now to the negligence if any of the defendant Nicholson, for whose negligence the defendant McDonald is responsible. Any motorists who attempts to evade the police by speeding away from them and thereby causes a high speed chase knows that by so doing he is creating a substantial risk that such chase will end in serious injury or damage to property of either the police or members of the public lawfully using the highway. It is of no consequence that such motorist cannot foresee the exact way or mechanics by which his conduct in running from the police may result in injury or damage to the property of others, nor is it any defence for such motorist that the police officer could have prevented damage or injury if the police officer had used reasonable care during the chase. By attempting to evade the police, the motorist creates and puts into motion a chain of circumstances that leaves him responsible for any injury or damage caused in the chase. Police officers have a duty to enforce the law by stopping motorists and others they find breaking the law. This means they must at times follow and if necessary chase those who attempt to evade them. The fact that in the excitement of such a chase a police officer fails to exercise the care required of him does not excuse the motorist that created the chase. Indeed by running from the police the motorists precipitates the very circumstances that leads the police to take chances that at times they ought not to take. Where an accident has been caused by the combined negligence of a motorist in attempting to escape the police and that of a police officer who has not exercised proper care during the chase, the degree of responsibility to be apportioned to each will of course vary with the circumstances. Generally speaking, however, the motorist attempting to escape should bear the major portion of the responsibility since he caused the chase in the first place. In this case I apportion responsibility for the accident seventy-five percent against Nicholson and twenty-five percent against Constable Mason.
The Crew case was affirmed (1989) 58 D.L.R. (4th) 111. While this passage does deal with division of liability, equally important is the concept that "By attempting to evade the police, the motorist creates and puts into motion a chain of circumstances that leaves him responsible for any injury or damages caused in the chase.".
[30] Generally the cases to which I have referred, so far, interpret the right of pursuit decidedly in favour of the police and liability decidedly against the pursued vehicle. However there must be a balance between duty to apprehend and duty of care not only to the public, but also to a fleeing suspect. Here I would refer to Blaz v. Dickinson (1996) 23 M.V.R. (3d) 70 (Ont. Gen. Div.) in which the pursued stolen vehicle was being driven recklessly in an attempt to evade apprehension. The stolen pursued vehicle collided with that driven by a bystander, the Plaintiff, Mr. Blaz. While Mr. Blaz sued both the reckless driver and police, he succeeded only against the former, there being no negligence or contributory negligence on the part of the police, who acted with reasonable care. However, the following passage points to the balance which must be struck between the duties that a police officer is charged with, the apprehension of a criminal and the duty to ensure public safety, but without losing sight of the duty of care owed by the police to a fleeing suspect:
35 It is the duty of police officers to apprehend criminals, and to protect lives and property. By virtue of s. 25 of the Criminal Code, R.S.C. 1985, c. C-46, police officers can use as much force as is necessary in the enforcement of the law providing they act on reasonable grounds. This section establishes protection from liability for certain persons, including police officers, acting under authority.
40 There is a balancing required between the duty to apprehend a fleeing suspect and the duty to ensure public safety in doing so. The duty of care owed by the pursuing officer extends to the fleeing suspect. It is the same duty as that owed to other persons, specifically, to exercise such care and skill as is reasonable in all the circumstances: Marshall v. Osmond, [1983] 2 All E.R. 225 (C.A.) at 227.
44 Police officers are required to make decisions that call for the exercise of judgment. The costs associated with the risk involved in a pursuit should not exceed the benefits. This assessment involves a calculus of probabilities, and quick decision making within a short time span with imperfect knowledge as to all the relevant factors. Mere errors in judgment with the benefit of hindsight do not amount to negligence. The law does not expect perfection.
96 The police force is liable for injuries and damages proximately caused by the negligence of a police officer in the operation of his/her vehicle during a pursuit. A police officer has a statutory duty to apprehend criminals and to protect lives and property. However, a police officer does not have any special exemption from the general duty imposed upon citizens to exercise due care for the safety of others. That is, a police officer must perform his/her statutory duties in a manner consistent with the duty of exercising care for the safety of others.
98 The duty of a police officer to act reasonably in protecting the public from unreasonable risk of injury or damages includes a duty to take reasonable steps to protect against the misconduct of the criminal himself/herself. The misconduct of the criminal seeking to escape the police in pursuit is the immediate, operative cause of harm to third persons when an accident results. The criminal bears prime responsibility for such accident. However, given the foreseeable risk to the public endemic to the pursuit situation, the police officer must consider as one factor whether or not the discontinuance of the pursuit is the reasonable course of action in the circumstances. Failure to discontinue a pursuit may constitute negligence. The fact that it is the vehicle of the pursued criminal, not the police vehicle, that is in collision with the victim, does not absolve the police officer of his/her negligence.
[31] In the present instance and on the basis of Blaz v. Dickinson, I should look at the duty of care owed to the Plaintiff, Mr. Watson, as being composed of the care and skill reasonable in the circumstances, but keep in mind that what is required is not a counsel of perfection, but rather the exercise of statutory duties in a way which is consistent with the care for and safety of others. In the present instance Mr. Watson was without any doubt driving recklessly. Constable Peckham had a duty to apprehend. On the evidence the one taillight on Mr. Watson's vehicle disappeared with Constable Peckham coming to the conclusion that the vehicle had either turned or gone down into a dip. Constable Peckham was quite properly surprised to find the vehicle stopped in the middle of the road ahead of him. No amount of hindsight could foresee that, for Mr. Watson previously had many an opportunity to pull over to the side of the road, including at the dead end. As to the latter, the photographs bear out that while the roadway proper was relatively narrow, there was ample room for Mr. Watson to pull onto the broad and flat shoulder. Certainly Constable Peckham was considering whether to abandon the chase: in hindsight he might have abandoned the chase earlier, but that does not in my view amount to negligence.
[32] The last case to which I will refer is the unreported decision of Mr. Justice Turnbull of the New Brunswick Court Queen's Bench in Craig v. Hawboldt, 8 May 2000, [2000] N.B.J. 215. In that instance the pursuit took place at various speeds, as very foggy road conditions allowed. This scenario has a parallel in the present instance, Constable Peckham having slowed by reason of the dust. In Craig v. Hawboldt the fleeing vehicle struck a bridge abutment, with the police car colliding with the back end of the fleeing vehicle. Mr. Justice Turnbull observed that there might be fault, for the rear-ending, if the car had been driven by a layman, however given the legal duty imposed by society on policemen to apprehend criminals he was of the view that there was no contributory negligence whatsoever. Key in Craig v. Hawboldt was the fact that everyone was surprised by the narrow bridge. That has a parallel in the present instance, with Constable Peckham being surprised to find Mr. Watson's vehicle stopped in the middle of the road.
[33] Considering all of the circumstances and substantial representative case law, I do not see either negligence or any contributory factor on the part of Constable Peckham in the present instance.
The Earlier Criminal Conviction and Abuse of Process
[34] Assuming for the sake of argument that there might in fact be contributory negligence on the part of Constable Peckham and, as I say, I do not see any, I should touch upon the findings of Mr. Justice Clozza in the earlier criminal proceedings in this matter. He observed that the fact of a police pursuit was prima facie evidence of dangerous driving. However he went on to look to actual dangerous driving, being the running of four stop signs, in itself dangerous driving. He went on to note that Mr. Watson had admitted he was trying to outrun the police constable and that he was not entirely aware of what was going on around him. Mr. Watson did not see a friend who is a pedestrian. That again created a danger to a person and was dangerous driving. Mr. Justice Clozza observed that "there was danger to the accused himself. In fact the accused finally got hit and I'd suggest he was the author of his own injury." (pages 60 and 61 of the transcript of the criminal proceedings). He went on to find Mr. Watson guilty of dangerous driving. While Mr. Justice Clozza observed the accident was unfortunate, he noted that Mr. Watson had "lots of opportunity to stop and avoid the ultimate conclusion": he emphasized that Mr. Watson was the author of his own injury (page 64). Mr. Justice Clozza also awarded restitution to the Crown for damage to the police car.
[35] In order to find any liability on the part of the Crown, for the actions of Constable Peckham I would have to make findings and come to a conclusion contrary to those expressed by Mr. Justice Clozza. This would be contrary to what the Supreme Court of Canada set out in Canadian Union of Public Employees v. City of Toronto in the Court's consideration of abuse of process, where the emphasis was on the integrity of the adjudicative functions of the courts.
[36] As I observed earlier the Supreme Court of Canada in City of Toronto set out at paragraphs 51 and 52 both the importance of the integrity of the adjudicative process and the instances in which there might be relitigation. The instances for relitigation involved a taint by fraud or dishonesty, new evidence, or when fairness dictated the original results should not be binding in a new context. None of these exceptions applies in the present instance. On the basis of Canadian Union of Public Employees v. City of Toronto I ought not to interfere with Mr. Justice Clozza's findings, which I would have to do, were I to determine that there had been contributory negligence which, as I say, I do not see in any event. Similarly, by reason of the decision in Trang v. Alberta (supra) I ought to accord Mr. Justice Clozza a high degree of deference, with essential findings not to be subject to relitigation. Indeed, there is not in the present instance any of the evidence which would be required to refute the earlier findings: see Trang v. Alberta at paragraph 61.
CONCLUSION
[37] In this instance the work of counsel was excellent. The witnesses were good. It is unfortunate that there must be a winner and a loser. However, the action is dismissed. Costs to the Crown.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, B.C.
21 November 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1227-00
STYLE OF CAUSE: ADRIAN JOHN WATSON v. HER MAJESTY THE
QUEEN, AS REPRESENTED BY THE ROYAL CANADIAN MOUNTED POLICE
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 18, 2003
REASONS FOR Order : Mr. John Hargrave, Prothonotary
DATED: November 21, 2003
APPEARANCES:
Mr. John D'Arcy Boulton FOR PLAINTIFF
Mr. Barry Benkendorf FOR DEFENDANT
SOLICITORS OF RECORD:
Boulton's Law Office
Sundre, Alberta FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General of Canada
Edmonton, Alberta FOR DEFENDANT
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