Docket: T-996-09
Citation:
2015 FC 739
Ottawa, Ontario, June 11, 2015
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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GARY SAUVE
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Plaintiff
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and
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HER MAJESTY THE
QUEEN
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Defendant
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JUDGMENT AND REASONS
[1]
The plaintiff, Gary Sauve, originally brought an
action for damages against the federal Crown claiming general damages for loss
of identity; loss of reputation, loss of integrity and dignity; humiliation,
degradation and embarrassment; loss of income and future income; loss of
enjoyment of life, loss of mobility, loss of guidance, care and companionship
of his family and friends; emotional trauma, pain and suffering, migraines,
loss of sleep, nightmares of traumatic events; stress, anxiety and worry;
harassment, intimidation, intrusion upon the plaintiff’s seclusion or solitude
and invasion of privacy.
[2]
Most of the plaintiff’s statement of claim was
struck out by an order dated October 6, 2009 (2009 FC 1011) in which Justice
Mainville found that all of the issues in the statement of claim which were
identical or similar to the issues set out in the plaintiff’s statement of
claim in file T-1646-08 should be stricken out as an abuse of process. However,
some paragraphs concerning the plaintiff’s claims with regards to issues
related to alleged unlawful or abusive surveillance, invasion of privacy and
harassment were not stricken out and remain before the Court today.
[3]
The plaintiff is a former member of the RCMP who
has filed numerous actions in this Court against the RCMP with regards to various
allegations including harassment, wrongful acts and breaches of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
A factual background of the events leading to the plaintiff’s dismissal can be
found in a recent decision of this Court: Sauve v Canada, 2015 FC 66 at
paras 3 to 8, and the plaintiff’s history before this Court has been generally
summarized in an order by Chief Justice Crampton: Sauve v Canada, 2014
FC 119.
[4]
In this case, the plaintiff makes three main
factual allegations that he argues constitute torts. First, the RCMP served
documents or made attempts to serve documents on the plaintiff personally on
multiple occasions at his residence and at other locations. Second, the RCMP
attempted to entrap the plaintiff by using an RCMP informant to attempt to sell
him a gun. Third, the RCMP conducted surveillance of the plaintiff.
[5]
During the relevant period, the plaintiff
resided in various locations, with friends as well as with Lorraine Séguin, the
plaintiff’s ex-partner, who has a house in Navan. For the purposes of these
reasons, Ms Séguin’s house will be referred to as the “Navan residence.”
THE EVIDENCE BEFORE the COURT
[6]
The Court considered all relevant evidence
submitted by the parties, including an agreed statement of facts, all three
volumes of the joint books of documents, and the testimonies of the plaintiff,
Ms Séguin, Staff Sergeant Gagnon and Constable Pion.
First allegation: personal service
of documents
[7]
With regards to the first allegation, the
parties filed an agreed statement of facts which establishes the following
facts.
[8]
On October 14, 2004 and on January 29, 2005, the
plaintiff was personally served with documents. During that period, he was in
custody.
[9]
On January 19, 2007, the RCMP served a document
personally on Stephanie Mulcaster, the plaintiff’s lawyer.
[10]
During the disciplinary hearing process, lawyer
Jean-Daniel Hacala represented the Commanding Officer and he instructed RCMP
officers to personally serve on the plaintiff the documentation he had
assembled. Staff Sergeant Guy Gagnon and Corporal Yves Mainville were tasked
with effecting personal service. They were instructed not to leave the
documentation with Ms Séguin, nor to leave the documentation at the Navan
residence or mail it.
[11]
On October 27, 2008, Staff Sergeant Gagnon
emailed Ms Mulcaster to inform her that he was having difficulty reaching the plaintiff
to personally serve him with documents. Ms Mulcaster replied that she could not
assist with service as she did not have the express instruction to do so.
[12]
In November 2008, Staff Sergeant Gagnon and
Corporal Mainville made three attempts to serve documents on the plaintiff at
his residence. On the first attempt, no one answered the door and on the other
two attempts, Ms Séguin answered the door and informed the officers that the plaintiff
was not home.
[13]
On December 3, 2008, Corporal Mainville and
Corporal Lee Côté met the plaintiff in the parking lot of the Pizza Pizza on
Hazeldean Drive and served him with documents.
[14]
Between March and September 2009, Staff Sergeant
Gagnon and Corporal Mainville served the plaintiff with documents in the
Federal Court lobby at 90 Sparks Street on three different occasions. On March
19 and on September 10, 2009, the plaintiff accepted service of the documents. However,
on June 25, 2009, the plaintiff refused to accept service and he told the RCMP
officers that they continue to harass, intimidate and threaten him.
[15]
On November 21, 2009, Staff Sergeant Gagnon and
Corporal Mainville attended the Navan residence to personally serve him with
documents. Ms Séguin opened the door and indicated that the plaintiff was not
there.
[16]
On January 2, 2010 at 10:30 a.m., Staff Sergeant
Gagnon and Corporal Mainville attended the Navan residence to personally serve
him. Ms Séguin informed them that the plaintiff was not there and they
indicated to her that they had attempted service numerous times and that the plaintiff
was avoiding service. Staff Sergeant Gagnon and Corporal Mainville returned to
their vehicle and remained parked in front of the house until 11:30 a.m.
[17]
Between January 7 and January 12, 2010, various
uniformed RCMP members made six attempts to serve documents on the plaintiff at
his residence but on all of these occasions, no one answered the door. On a few
of these occasions, the RCMP members also checked the rear of the residence,
including knocking on the rear door, made observations about the house, and on
one occasion, an RCMP member shone his flashlight in the upper level windows of
the house and noticed a man quickly retreating but could not identify the
person because of the darkness.
[18]
On January 12, 2010, the plaintiff contacted
Staff Sergeant Gagnon to tell him to stop conducting surveillance at his
residence and to serve any documents on him at his future court appearances.
[19]
On January 15, 2010, Corporal Peleja informed
Constable Michael Esslinger that he would be personally serving the plaintiff
with documents and told him that the plaintiff was reported to have a long gun
in his possession, this having been seen through his window by an RCMP member,
who was the plaintiff’s neighbour. This information was not correct. The
neighbour of the Navan residence, Sergeant Greg Fedor, had never seen a long gun
inside the Navan residence and had not reported to the RCMP that the plaintiff possessed
a long gun.
[20]
On January 15, 2010, Constables Peter Woolley
and Esslinger attended the Navan residence to personally serve the plaintiff
with documents. The plaintiff answered the door but he refused service of the
documents and indicated that he would be in court on January 18, 2010 and that
the RCMP could attempt service then. The plaintiff told the officers not to
attend his residence again.
[21]
On January 18, 2010, Staff Sergeant Gagnon and
Corporal Mainville attempted to personally serve the plaintiff with documents
at 90 Sparks Street, as he had requested, but the plaintiff refused to accept
service.
[22]
From January 25 to January 28, 2010, an
Adjudication Board constituted pursuant to Part IV of the Royal Canadian Mounted
Police Act, RSC 1985, c R-10 [RCMP Act] conducted a disciplinary
hearing into allegations against the plaintiff and made the decision to dismiss
the plaintiff. According to the RCMP, the decision was personally served on the
plaintiff on April 8, 2010. According to the plaintiff, he was not served with
the decision.
Second
allegation: attempt by an informant to sell a gun
[23]
With regards to the second allegation, the plaintiff
testified to the following facts. On March 21, 2005, while he was suspended
from his employment at the RCMP, the plaintiff received a page on his RCMP pager
from an informant asking the plaintiff to call him. According to the plaintiff,
that individual was a coded informant with the RCMP and prior to the plaintiff’s
detention in October 2004, the plaintiff spoke to this informant on a weekly
basis. The plaintiff testified that when he spoke to the informant, the
informant told him he had a gun to sell for $300. After some coaxing from the plaintiff,
the informant told him that the gun had been given to him by the RCMP who had
asked him to sell it to the plaintiff. The plaintiff also provided some pages
of his personal notebook which relate to the conversation he had with the
informant. According to the plaintiff, the notes are not verbatim. The plaintiff
taped the conversation but he lost the tape.
[24]
Staff Sergeant Gagnon also testified to those
allegations and denied that the RCMP had asked an informant to sell a gun to
the plaintiff. According to Staff Sergeant Gagnon, the informant had been
deactivated by the RCMP sometime in 2004 and was certainly no longer an RCMP
informant in March 2005. In addition, because he was responsible of the
Confidential Human Sources unit, Staff Sergeant Gagnon would have had to
personally negotiate with the informant to draft his role and the expectations.
According to Staff Sergeant Gagnon, never in his career has a gun been given by
the RCMP to an informant and the immunity provision would not apply to that.
Third
allegation: surveillance on the plaintiff
[25]
On the third allegation relating to
surveillance, the plaintiff testified that during the period between 2005 and
2010, he was subject to multiple incidents where the RCMP conducted
surveillance on him. The plaintiff testified that because of his experience
with the RCMP, he was familiar with surveillance techniques and could identify
when he was being followed or the subject of surveillance at his residence. The
plaintiff also provided excerpts from his personal notebook where he took notes
about various incidents. In their testimonies, both Constable Pion and Staff
Sergeant Gagnon indicated that, to their knowledge, the RCMP had not conducted
surveillance on the plaintiff. Constable Pion specifically denied conducting
surveillance on the plaintiff.
[26]
According to the plaintiff, there were a few
incidents in November 2005, including on the 17, the 21, the 24, the 25 and the
30. During those incidents, the plaintiff noticed cars parked close to the
Navan residence, in a traditional observation point position that has a direct
line of sight on the residence, and he was also followed by one or multiple cars
when he left the residence. The plaintiff explained that there are only two
houses on the street where the residence is. The plaintiff’s testimony and
notes were to the effect that there were multiple similar incidents in the
following years.
[27]
In his testimony, the plaintiff also detailed a
few incidents of particular importance, some of which were corroborated by Ms
Séguin in her testimony. On June 6, 2006, the plaintiff went to an appointment
at the RCMP medical office. The plaintiff felt he was being followed but was
not positive. After leaving the medical office, he went to the TD Bank on Innes
Road. Right after entering the bank, he noticed he had forgotten his card in
the car and turned around to go get it. When he exited the bank, two RCMP
officers, that the plaintiff identified as Michel Charon and an officer whose
first name is Dan, were walking in the bank. When they saw the plaintiff, they
stopped dead in their tracks and then took off around the bank. The plaintiff
also referred to his notes which indicate that he walked straight to the
vehicle he believed to be the RCMP surveillance vehicle where an officer he
knew was pretending to write something in a book. The plaintiff waved at him
and made signs for several minutes, and the officer started laughing. The plaintiff
got back in his vehicle and drove around the back, where he saw that the first
two officers were still there, and then he left. The defendant did not produce
these officers as witnesses.
[28]
The plaintiff also believes that the landline at
his Navan residence was tapped on March 14, 2007. He testifies that he saw a
brown SUV with no identification parked at the Bell box. During that day, the
phone rang really low all day but there was no registered number calling, which
the plaintiff testified was a sign that the phone was being tested or
calibrated. The plaintiff testified that he called Bell which told him that
only they would have access to that box. According to the plaintiff, he
confirmed that the phone was tapped afterwards by mentioning meetings to
friends using the landline and then using counter-surveillance which confirmed
that he was the subject of surveillance whenever he mentioned a meeting over
the phone. In his testimony, Staff Sergeant Gagnon explained that to his
knowledge, a wiretap has never been put on the plaintiff. A warrant would have
been necessary and a high threshold has to be met for that to be available.
According to him, the wiretapping is done through the phone companies and there
would be no need to go to the Bell box. In his testimony, Constable Pion
explained that it is the investigation section that requests a wiretap and
before doing so, they must have the surveillance unit doing traditional
surveillance for long enough to demonstrate that a wiretap is necessary because
surveillance is not possible on the target.
[29]
On August 24, 2008, four vehicles followed the plaintiff,
Ms Séguin and their son from the Navan residence to a Canadian Tire store, one
of which parked in an observation point position in the parking lot. An
individual who got out of that car and walked into the store was recognized by
the plaintiff as a police officer, and so was a second individual whom he
recognized inside the store. When he left the store, the plaintiff used a
counter-surveillance technique on Trim Road by parking at the bottom side of a
hill, and the same car that they had seen earlier came up behind them. The plaintiff
provided pictures which he indicated were pictures of the cars following them
taken by his son on a cell phone. Following that incident, the plaintiff checked
the registration of the plates with the Ministry of Transport and they came
back as unfound, which according to the plaintiff, will be the result if the
vehicles are RCMP vehicles.
[30]
On June 17, 2009, the plaintiff picked up his
son at school and they went to Staples where they separated. The plaintiff
testified that an individual jumped out of a car with photography equipment and
an ear piece, and that individual got really close to his son in the store, to
the point where a store clerk came to inform him. At that point, the plaintiff
and his son left the store and drove off in their car, but the plaintiff simply
came back around and parked in front of the store. There, he saw the individual
come out of store and talk in his mike in the middle of the road. That
individual walked across the parking lot to The Source where the plaintiff
followed him. In The Source, the plaintiff overheard the individual say he
wanted to sell his camera and heard the clerk reply that it was a brand new
camera. Afterwards, the individual walked along Innes Road and took pictures of
the metal structures. The plaintiff followed in his car and parked in a church
parking lot. The individual walked into the church parking lot and through to
the pathway that leads to Nesting Way. The plaintiff then drove around to
Nesting Way, where he saw the individual ring the doorbell to a house, and the
door opened immediately and the individual went inside the house. Afterwards,
the plaintiff left and later came back. After coming back, he saw the
individual leave and be picked up by a vehicle similar to the one seen in the
parking lot of the Staples. The plaintiff also provided pictures of that
individual and of the car in the Staples parking lot.
[31]
The plaintiff also referred to an incident in a
Superstore involving Constable Pion. The plaintiff testified that he had lost
the notes on that incident, but that it probably happened during the summer
months of 2009, which was also corroborated by Ms Séguin, even though she did
not have an exact date either. The plaintiff testified that while he was going
through the checkout at the cash, he noticed Constable Pion looking at him from
a few cashes over. The plaintiff walked over to confront him but Constable Pion
dove under the cash. Ms Séguin testified that he had ducked down between two
cashes. The plaintiff then tapped him on the shoulder, to which Constable Pion
did not react, until the plaintiff asked the clerk to call the store manager. The
plaintiff testified that when the manager got there, Constable Pion jumped up,
said hello and walked out the store. Ms Séguin testified that Constable Pion
jumped up as soon as the plaintiff asked the clerk to call the manager and that
the manager was never actually called. Ms Séguin could not identify the
individual as she does not know Constable Pion, but she indicated that the plaintiff
had told her it was Constable Pion. In his testimony, Constable Pion indicated
that it was possible that he ran into the plaintiff at a Superstore, but that
he had no memory of it. Constable Pion testified that if he had met the plaintiff,
it would not have been in the context of conducting surveillance on him as he
had never conducted surveillance on him. Constable Pion added that he knows the
plaintiff since more than 25 years ago and that it would have been impossible
for him to conduct surveillance on the plaintiff as the plaintiff would have
recognized him. Constable Pion also testified that for all of 2009, he was not
in the surveillance unit but rather in the counter-surveillance unit.
[32]
The plaintiff also indicated that he was pulled
over between 10 and 15 times by police officers who told him he was under
investigation by the RCMP, including being pulled over three times by the same
officer who told him “It’s not me, by the way.”
Analysis
[33]
During her closing statements, plaintiff’s
counsel explained that two torts are alleged here: the invasion of privacy tort
of intrusion upon seclusion and trespass. Counsel indicated that she knew that
harassment was not a tort per se, but asked the Court to consider the
incidents of harassment, including the incident with the gun, as part of a
course of conduct by the RCMP that invaded the privacy of the plaintiff.
[34]
The tort of intrusion upon seclusion was
accepted by the Ontario Court of Appeal in the decision of Jones v Tsige,
2012 ONCA 32 [Jones], where the Court adopted the formulation for
intrusion upon seclusion found in the American Restatement (Second) of Torts
(2010):
One who intentionally intrudes, physically
or otherwise, upon the seclusion of another or his private affairs or concerns,
is subject to liability to the other for invasion of his privacy, if the
invasion would be a highly offensive to a reasonable person.
[35]
The three elements of intrusion upon seclusion
are: (1) that the defendant’s conduct must be intentional or reckless; (2) that
the defendant must have invaded without lawful justification the plaintiff’s
private affairs or concerns; and (3) that a reasonable person would regard the
invasion as highly offensive, causing distress, humiliation or anguish (Jones,
above at para 71).
[36]
In Ontario, the offence of trespassing is
defined in the Trespass to Property Act, RSO 1990, c T.21:
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2. (1) Every
person who is not acting under a right or authority conferred by law and who,
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(a) without the
express permission of the occupier, the proof of which rests on the defendant,
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(i) enters on
premises when entry is prohibited under this Act, or
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(ii) engages in
an activity on premises when the activity is prohibited under this Act; or
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(b) does not
leave the premises immediately after he or she is directed to do so by the
occupier of the premises or a person authorized by the occupier,
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is guilty of an
offence and on conviction is liable to a fine of not more than $2,000.
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[37]
The elements of the tort of trespass in Ontario
can be found at paragraph 86 of Grace v Fort Erie (Town), [2003] OJ No
3475, 2003 CanLII 48456 (ONSC) where the Ontario Superior Court indicated that
these elements are:
* Any direct and physical intrusion onto
land that is in the possession of the plaintiff (indirect or consequential
interference does not constitute trespass).
* The defendant’s act need not be intentional, but it must be
voluntary
* Trespass is actionable without proof of damage.
* While
some form of physical entry onto or contact with the plaintiff’s land is
essential to constitute a trespass, the act may involve placing or propelling
an object, or discharging some substance onto the plaintiff’s land can
constitute trespass.
[38]
Essentially, “[a]ny
intrusion upon another person's land constitutes trespass if it is not justified
by law” (Halsbury’s Laws of Canada (Online), Torts, at HTO-19
“Categories of Trespass”).
[39]
According to the plaintiff, the incidents of
service of documents constitute both intrusion upon seclusion and trespass. The
plaintiff argues that the RCMP officers physically invaded his property and
invaded his private affairs, and that repeatedly attending his residence is not
authorized by law. According to the plaintiff, the RCMP Act and Royal
Canadian Mounted Police Regulations, 1988, SOR/88-361 [RCMP Regulations,
1988] did not provide for multiple attempts to personally serve the plaintiff
at his residence. Subsection 47.2(1) of the version of the RCMP Act in
force at the time of the incidents of service provided that:
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47.2 (1) Subject
to subsection (2), any notice, decision or other document required by this
Act to be served by a person or a board shall be served by or on behalf of
that person or board personally on the person to whom the notice, decision or
document is directed.
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47.2 (1) Sous
réserve du paragraphe (2), la signification à personne s’impose à l’égard de
tout avis, décision ou autre document qu’une personne ou une commission doit
signifier en vertu de la présente loi.
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[40]
Section 27 of the RCMP Regulations, 1988
provides for personal service as well as alternative means of service in
certain circumstances:
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27. (1) Any
notice, decision or other document required by these Regulations to be served
on a person shall be served personally on the person, except that any notice,
decision or other document required by these Regulations to be served by a
person, an administrative discharge board or a medical board on the
Commissioner or an appropriate officer is sufficiently served if it is sent
by or on behalf of the person, administrative discharge board or medical
board by prepaid first class mail addressed to the Commissioner or
appropriate officer, as the case may be.
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27. (1) La
signification à personne s’impose à l’égard de tout avis, décision ou autre
document dont le présent règlement exige la signification. Toutefois, dans le
cas d’un avis, d’une décision ou d’un autre document qu’une personne, un
conseil de renvoi par mesure administrative ou un conseil médical est tenu de
signifier, aux termes du présent règlement, au Commissaire ou à l’officier
compétent, est valable la signification par courrier affranchi au tarif de
première classe et adressé au Commissaire ou à l’officier compétent, selon le
cas.
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(2) Personal
service constitutes leaving a copy of the notice, decision or other document
with the person.
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(2) La
signification à personne consiste à remettre au destinataire en mains propres
une copie de l’avis, de la décision ou du document.
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(3) Where more
than one unsuccessful attempt has been made to personally serve a notice,
decision or other document on a member, the notice, decision or other
document may be served by enclosing a copy thereof in a sealed envelope
addressed to that member and leaving it with any person who appears to be an
adult and an occupant of the dwelling in which the member is residing, or by
mailing a copy thereof to the person at that address.
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(3) Lorsque plus
d’une tentative de signification à personne a échoué, la signification de
l’avis, de la décision ou du document peut être effectuée par la remise d’une
copie de celui-ci, insérée dans une enveloppe cachetée et adressée au
destinataire, à toute personne à la résidence du destinataire qui semble être
adulte et y résider, ou par l’envoi d’une copie par la poste à la même
adresse.
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(4) Where a
person refuses to accept a notice, decision or other document required to be
served personally, personal service is considered to have been effected at
the time of the refusal, if the person attempting service
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(4) Lorsqu’une
personne refuse de recevoir un avis, une décision ou un autre document qui
doit être signifié à personne, la signification à personne est réputée avoir
été faite au moment du refus si la personne chargée de la signification :
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(a) records the
refusal on the notice, decision or other document; and
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a) d’une part, inscrit
le refus sur l’avis, la décision ou le document;
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(b) leaves a copy
of the notice, decision or other document with the person, by any reasonable
means.
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b) d’autre part,
laisse une copie de l’avis, de la décision ou du document au destinataire par
tout moyen raisonnable.
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[…]
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[…]
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[41]
According to the plaintiff, after the first
attempt at serving the plaintiff personally, the officers should have mailed
the documents or left them with Ms Séguin at the Navan residence. The plaintiff
argues that it could not have been the intention of the legislature to have
people attending an individual’s residence multiple times, but here, the RCMP
officers were specifically ordered to hand the documents personally to the plaintiff,
instead of following the alternative modes of service provided for by
subsection 27(3) of the RCMP Regulations, 1988. According to the plaintiff,
the RCMP’s conduct constitutes both trespass and intrusion upon seclusion. With
regards to intrusion upon seclusion, the conduct was intentional and invaded
the private affairs of the plaintiff without lawful justification, and a
reasonable person would have found the conduct highly offensive. With regards
to trespass, the RCMP officers invaded the Navan residence with no lawful
justification. During closing arguments, Counsel for the plaintiff indicated that
no tort was alleged for the incidents of service at the Federal Court.
[42]
According to the defendant, neither the tort of
trespass nor of intrusion upon seclusion have been proven by the plaintiff. First,
all of the actions of the RCMP were taken to comply with subsection 47.2(1) of
the RCMP Act. Second, the plaintiff has a history of evading service and
has no fixed address as he rotates between four locations. In that context, the
RCMP could not leave the documents with Ms Séguin or send them by mail to the
Navan residence or to another address. In addition, though Counsel for the plaintiff
indicated that there would be no problem of proof if the service was not done
personally, there is already one documented incident where Inspector Côté swore
an affidavit that he had served the plaintiff with a document, while the plaintiff
swore an affidavit saying that he had not been served, which shows that the RCMP
had to serve him personally. With regards to intrusion upon seclusion, the defendant
acknowledges that the RCMP’s conduct was intentional, but argues that the
conduct was justified by law and is not highly offensive to a reasonable
person. With regards to trespass, the defendant argues that the plaintiff does
not have the standing to bring an action of trespass since he is not a person
in possession of the property, as he resides at four different locations, and
has neither property nor leasehold in the Navan residence.
[43]
I agree with the defendant. The RCMP’s service
of documents did not constitute a tort. With regards to intrusion upon
seclusion, neither the second nor third criteria are met. In general, the
RCMP’s conduct was lawful and was taken to comply with subsection 47.1(1) of
the RCMP Act. Subsection 27(3) of the RCMP Regulations, 1988
does provide alternative modes of service, but using these modes is not
mandatory (“document may be served”) and the plaintiff’s history of
evading service and lack of fixed address justified the RCMP’s decision to only
effect personal service. However, there were a few incidents in January 2010
where the RCMP officers went further than what is lawfully justified in
attempting to personally serve the documents on the plaintiff, both by checking
the rear of the residence and by looking inside the house, including shining a
flashlight in the windows. Nonetheless, neither those incidents nor the other
incidents of service would be highly offensive to a reasonable person as they
constitute appropriate behaviour in attempting to serve someone personally.
[44]
Concerning the tort of trespass, I agree with
the defendant that the plaintiff has no standing to bring an action for
trespass for the Navan residence. The fact that it is one of the four locations
where he resides is not sufficient to constitute possession. From the evidence
provided, the plaintiff was simply a guest in the Navan residence and he had
none of the attributes of possession. He was certainly not exercising exclusive
occupation of the land, such as the owner or a tenant. His situation was
similar to that of a guest in a hotel room or a live-in nanny (Philip Osborne, The
Law of Torts, 3rd ed (Toronto: Irwin Law, 2007) at 280). Consequently,
the plaintiff cannot sue for trespass for the Navan residence, even though he
resided there.
[45]
According to the plaintiff, the remainder of the
incidents, both the incident with the gun and the incidents of surveillance,
show a course of conduct by the RCMP that invaded the privacy of the plaintiff
and consists of intrusion upon seclusion. The plaintiff argues that the
surveillance on the plaintiff was an intentional intrusion by the RCMP, that
there is no evidence that it was authorized by law and that it would be highly
offensive to a reasonable person. With regards to the gun incident, it is an
act of harassment, and even though harassment is not actionable per se,
it can be considered as part of the course of conduct by the RCMP that
constitutes intrusion upon seclusion.
[46]
The defendant argues that the RCMP did not
conduct surveillance on the plaintiff. Surveillance is done in criminal
matters, and no surveillance was authorized on the plaintiff by Staff Sergeant
Gagnon. In addition, RCMP officers, including Constable Pion, would not have
been able to conduct surveillance on someone they know. Also, it would not have
been possible for the RCMP to obtain a wiretap on the plaintiff as there needs
to be a criminal matter and the way of proceeding with a wiretap does not fit
the description of the events by the plaintiff. With regards to the gun
incident, the defendant argues that the RCMP did not attempt to sell a gun to
the plaintiff. The defendant notes that Staff Sergeant Gagnon would have been
personally aware as he was responsible of the confidential human sources and
that such an arrangement would have been illegal.
[47]
Though the defendant argues that the plaintiff’s
testimony and notes were not reliable, I agree with the plaintiff that his
credibility was not significantly challenged with regards to the incidents of
surveillance. The plaintiff was a credible witness and incidents of
surveillance, including the incident involving Constable Pion, were
corroborated by Ms Séguin. In addition, I would note that Constable Pion did
not deny the Superstore incident, he simply stated that he had no memory of it.
Also, the defendant did not produce the RCMP officers identified by the plaintiff
as taking part in the June 6, 2006 incident. Finally, the defendant did not
provide any evidence that the plaintiff was fabricating or that he suffers from
paranoia. However, the fact that the plaintiff was credible does not mean I
accept all of his evidence.
[48]
First, I give very little value to hearsay
evidence, including the plaintiff’s evidence of what the informant would have
told him as well as his evidence of what various police officers pulling him
over would have told him. Nor the informant or the police officers in question were
heard in Court. The tape of the conversation with the informant was not
produced and the notes taken by the plaintiff are not verbatim. Moreover, Staff
Sergeant Gagnon denied under oath that the RCMP hired an informant to entrap
the plaintiff by having him buy a gun. Second, I dismiss as purely speculative
or not plausible the uncorroborated and denied allegation that the RCMP
installed a wiretap on the phone of the Navan residence.
[49]
Third, though the plaintiff’s testimony
demonstrates that visual surveillance was conducted on him, the plaintiff did
not prove on the balance of probabilities that the RCMP was responsible for
conducting such surveillance. It could have been any organization interested in
him. The only direct evidence that the plaintiff provided on that question was
the fact that on two occasions (June 6, 2006 at the TD Bank parking lot and
summer of 2009 at the Superstore) he recognized some RMCP officers. His belief
that the surveillance was conducted by the RCMP is mostly based on his past
experience in surveillance and counter-surveillance techniques. However, Staff
Sergeant Gagnon, who was responsible for signing off on every operational plan
requesting surveillance, testified that he was aware of no plan involving the plaintiff
and Constable Pion directly testified that he had never conducted surveillance
on the plaintiff. There is no evidence, documentary or otherwise, emanating
from any other source than the plaintiff that the RCMP was conducting
surveillance on the plaintiff. In addition, the plaintiff did not establish why
the RCMP would have conducted surveillance on him for a five year period, other
than evoking the possibility that it could be linked to his disciplinary
investigation. Thus, even if I am ready to accept that the plaintiff was under
surveillance, the evidence does not conclusively establish that it was at all relevant
times the RCMP or another police body acting on behalf of the RCMP. Consequently,
the plaintiff has not established that the RCMP conducted surveillance on him.
[50]
Even if I had concluded that the plaintiff had
proven on a balance of probabilities that the RCMP had conducted surveillance
on the plaintiff, I would not have come to the conclusion that this course of
action constituted a tort. The surveillance done on the plaintiff was never
done inside private areas and was always limited to the street, parking lots or
to stores. The plaintiff did not point me to any case where a court found that
similar actions constituted an actionable tort. The plaintiff argued that there
was no need for contact for invasion of privacy, and what the plaintiff does
all day is subject to privacy law. The plaintiff did refer me to the case of MacKay
v Buelow, [1995] OJ No 867 [MacKay], where a woman was awarded
damages against her former spouse who stalked her.
[51]
However, MacKay is not applicable here
since in that case, there was repeated and intentional contact between the
parties, as Buelow (at para 8):
“harassed and intimidated the plaintiff on
numerous occasions by continuous telephone calls during the day and night,
letters and notes left at her home, threats to kidnap the daughter Angela and
remove her from the country, threats to the physical safety and well being of
the plaintiff and Angela, throwing a cupboard door directly at the plaintiff
and narrowly missing her, hanging a used condom on the wall in her home,
stalking the plaintiff on several occasions by car and on foot, directly and
indirectly threatening to kill her, videotaping her through her bathroom window
from a tree, advising third parties of the existence of nude movies of her and
continuously harassing her friends and professional advisors.”
[52]
This is not a similar case. From the evidence
provided by the plaintiff, any contact between the officers conducting
surveillance and the plaintiff was accidental and there was no communication
between them. In addition, there were no allegations that the plaintiff was
videotaped or photographed, neither in a private or public setting (except on
one occasion by the man with the camera who entered the store The Source after
apparently followed the plaintiff and his son at Staples), nor that he was observed
in a private setting. Though I agree with the plaintiff that he has a privacy
interest in his day to day activities and that surveillance conducted only from
public settings can constitute an invasion of the private affairs of an
individual, the surveillance in this case does not meet the criteria of
intrusion upon seclusion. Moreover, considering the facts that the plaintiff
had been convicted of criminal harassment and was the subject of a disciplinary
investigation, a reasonable person would not find the surveillance in this case
highly offensive. Consequently, the plaintiff did not establish that the RCMP
committed the tort of intrusion upon seclusion.
[53]
In all other respects, I accept the arguments
for dismissal of the action made by the defendant’s Counsel in her closing
submissions.
[54]
For these reasons, the present action shall be
dismissed by the Court. In view of the result, the defendant is entitled to
costs.
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