Ottawa, Ontario, July 28, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
and
Defendant
REASONS FOR JUDGMENT AND JUDGEMENT
[1] On February 24, 1999, the plaintiff commenced an action in this Court against the defendant, based on the actions of her servants. Mr. Pearson is seeking compensatory damages, general damages, exemplary damages and punitive damages for a total of $13 000 000.00. His claim rests on the alleged known and wilful abuse of process and malicious violations of the plaintiff's Charter rights by the Crown and her officers, servants and agents in his criminal prosecution in the Quebec courts.
[2] This case has had a very complex history, both in the courts of criminal jurisdiction and in this Court. A number of my colleagues, both judges and prothonotaries, have been called upon to adjudicate on various motions filed by the plaintiff and the defendant at various stages of this proceeding. Indeed, Justice Hansen commented in her reasons for an order dismissing a motion by the plaintiff that the case had become procedurally complex, "a fact to which the file's fifty six pages of recorded entries attests"; that was on June 21, 2001!
[3] Not only is this file complex and extraordinary by reason of its procedurally chequered history, but it also raises substantive issues that are still somewhat uncharted and contentious, from a strictly legal point of view. They have to do with the tangled web of civil and criminal law, with the elusive concepts of civil remedies and time limitations for Charter violations, and to a certain extent with the very jurisdiction of this Court.
[4] But maybe more importantly, this is a case highly charged emotionally, involving a man convicted of a serious criminal offence with all its attendant consequences for himself and his family, and who has spent the better part of the last fifteen years to vindicate his claim that his constitutional rights have been infringed and that he was unjustly sent to jail as a result. This is certainly one of the most serious claims that one can make in a democratic society governed by the rule of law, and for that reason alone it deserves to be scrutinized with the utmost seriousness.
[5] I hasten to mention that, as difficult as my task may be, I have had the tremendous advantage of being able to rely on the professionalism, the civility and the courteousness of the plaintiff, who represented himself, and of both counsel for the Crown. Mr. Pearson has proven to be a formidable litigator, well versed in the law and quite compelling in his submissions; as for the Crown lawyers, they have acted throughout these proceedings with restraint and as genuine officers of the Court, always willing to be as helpful as they could to the plaintiff. I am truly grateful and appreciative of their efforts.
[6] Before going into the details of the plaintiff's statement of claim, it is essential to summarize as briefly as possible what went on in the Quebec courts with respect to the criminal charges laid against the plaintiff, as these decisions are material to understand and assess the gist of the plaintiff's arguments. Needless to say, I shall focus on those aspects of the decisions that may be of some relevance in adjudicating on the plaintiff's claim.
BACKGROUND
[7] The accused has been charged with five separate counts of trafficking in narcotics, contrary to s. 4(3) of the Narcotic Control Act, R.S.C., c. N-1. The transactions occurred on July 21, September 12 and 26 of 1989. The circumstances surrounding Mr. Pearson's arrest are well summarized in the judgment of the trial Judge, the late Justice Hannan (The Queen v. Pearson, No. 500-01-018793-890, May 21st, 1991), as well as in the first decision of the Court of Appeal (R. v. Pearson, (1994) 89 C.C.C.(3rd) 535; [1994] Q.J. No. 66 (QL), February 24, 1994).
[8] Both prior to and during his trial, Mr. Pearson presented several motions requesting, inter alia, Crown disclosure of certain specified documents, and seeking a voir dire to determine whether evidence against him was inadmissible at his trial because it had been obtained through state action violating his Charter rights. The motions were denied by the trial judge, on the ground that the sole purpose of these motions was to obtain a pre-trial ventilation of the circumstances which might indicate that police entrapment was at the root of these charges. There being no particular allegations of violations of rights by the accused which would give rise to proof of matters other than matters relating to entrapment, the trial judge decided that these were better left to another stage of the trial. Relying on the decision of the Supreme Court of Canada in R. v. Mack, [1988] 2 S.C.R. 903, he concluded that the issue of entrapment was to be disposed of after the determination of guilt or innocence by the jury.
[9] Mr. Pearson also sought by way of pre-trial motion to have the Crown either produce Guy Bard, the R.C.M.P. informant who had introduced him to the undercover police officer (Mr. Rivard) who asked for the drug and bought it from him, or to provide him with Bard's notes or statements to the police. This motion was also denied, since Bard was not a witness to the transactions underlying the charges laid against Mr. Pearson.
[10] Mr. Pearson's position at trial was that he had been acting at all times as the agent of the purchaser, Rivard, and that he therefore was not guilty of trafficking. In his address to the jury, he stated that "[t]here is no dispute as to the actual facts in this case in relation to the actual transactions that took place. He added that "what the accused was doing was purchasing narcotics with funds provided with the R.C.M.P. for the R.C.M.P.; that "[the jury has not] heard one iota of proof that the accused committed any offence, small or big, except with the R.C.M.P." (R. v. Pearson, [1994] Q.J. No. 66, at para. 131).
[11] The jury returned verdicts of guilty on the first four counts of the indictment. The entrapment stage then took place. Again, Mr. Pearson presented a motion requesting that the Crown produce Guy Bard for cross-examination and provide all relevant documentary evidence pertaining to Bard. Once more, this motion was denied. The Crown made Bard available throughout the entrapment stage, but Mr. Pearson decided not to call him as a witness. He attempted to establish that he was a victim of random virtue testing by the police and that, in any event, they had improperly induced him to commit the offences for which he was charged. He testified that a friend of his (Duquette) had introduced him to Guy Bard, who would have later told him that this friend had become indebted as a result of a drug deal. A certain J.C. Rivard, one of the people to whom Duquette owed money, would have agreed to deduct from his friend's debt half the difference between the cost of any hashish obtained for him by Pearson at Montréal prices and the higher Ottawa price that Rivard would otherwise have had to pay.
[12] Applying the principles enunciated in R. v. Mack, above, Justice Hannan denied Mr. Pearson's motion for a stay of proceedings, confirmed the jury's verdicts and entered convictions on counts 1 through 4. He imposed sentences of "time served" on counts 1 and 2, and concurrent terms of one and four years, respectively, on counts 3 and 4. Rejecting Mr. Pearson's suggestion that the illegal transactions were caused by a desire to rescue his friend Duquette from financial difficulties and possible danger, the Court stated the following:
The Court cannot conclude that the police activity in this case went beyond having obtained information leading to a reasonable suspicion that a person, was engaged in criminal activity. Once that person, the Defendant, was identified as part of a bona fide investigation, he was provided with an opportunity to commit an offence of the nature suspected. The Defendant readily, not reluctantly, seized the chance.
(Transcription of Reasons for judgment by Justice Hannan, May 21st, 1991, at p. 18)
[13] The plaintiff appealed the trial judge's decision to the Quebec Court of Appeal (R. v. Pearson, above). The main grounds of appeal related to the inadequate disclosure by the Crown, the wrongful dismissal of his pre-trial motions, and the misdirection or non-direction as to the essential elements of trafficking. More specifically, Mr. Pearson argued, inter alia, that: 1) the trial judge erred in refusing to order the production by the Crown of certain documents prior to and during the trial, thus preventing him from making a full answer and defence and from enjoying a fair trial; 2) the trial judge erred in refusing to hold a pre-trial voir dire to determine whether evidence obtained by the State was inadmissible as violating the appellant's Charter rights; and 3) the trial judge erred in denying him the right to cross-examine a Crown witness in violation of his rights under articles 7 and 11(d) of the Charter.
[14] Writing for the Court, Justice Fish disposed quickly of the second and third grounds of appeal. In his view, the trial judge had not exercised his discretion improperly in declining to hold a voir dire and in refusing to order that a witness be produced by the Crown for cross-examination by the defence. Considering the relevance of those findings on Mr. Pearson's claim in this Court, it is worth quoting from the reasons of Mr. Justice Fish, at pp. 552-553:
The voir dire and the cross-examination referred to in grounds 2 and 3 were intended solely to ventilate the entrapment issue prior to a verdict on the merits. The trial judge was entitled, in light of R. v. Mack (...), to decline to hold a voir dire for that purpose. In doing so, he did not err in law or exercise his discretion improperly.
Nor did the trial judge err in refusing to order that Bard be made available for cross-examination by appellant. During the guilt-innocence stage, the transparent purpose of the proposed cross-examination was to make evidence, prematurely, only as to entrapment. Appellant was not entitled to raise entrapment at that stage. Finally, and perhaps most important, Bard was not a witness to the facts upon which guilt or innocence depended.
Accordingly, for the purposes of this appeal, it is unnecessary to decide whether evidence relevant to entrapment alone can ever be adduced prior to verdict (...)
At the entrapment hearing itself, Bard was made available as a witness. Appellant was aware of Bard's involvement in the investigation ultimately leading to appellant's arrest. Bard was not at all concerned in the transactions as such. Appellant could have called him if he wished and examined him pursuant to the usual rules, including those that apply to adverse or hostile witnesses. He chose not to do so. Subject to my conclusion on the issue of disclosure, I am satisfied that the trial judge did not exercise his discretion unjudicially, or otherwise err, in declining even at the entrapment stage to order that Bard be called by the Crown for cross-examination by the defence.
[15] With respect to the disclosure of the documents requested by Mr. Pearson, the Court of Appeal had the advantage of having seen some of these documents. Indeed, the Court had granted a Crown's motion to be permitted to produce the documents demanded by Mr. Pearson so that the Court could determine for itself whether the imputed non-disclosure had impaired Mr. Pearson's right to make full answer and defence. As a result, the Court allowed the Crown to produce Mr. Bard's notes relative to his meeting with Mr. Pearson, along with Bard's criminal record and the terms of his arrangement with the R.C.M.P.
[16] After having reviewed the principles formulated by the Supreme Court with respect to disclosure in R. v. Stinchcombe, [1991] 3 S.C.R. 326 and R. v. Egger, [1993] 2 S.C.R. 451, Mr. Justice Fish came to the conclusion that the Crown ought to have turned over the Bard materials to Mr. Pearson as soon as he asked for them, even if that information was relevant primarily or exclusively to the issue of entrapment. The Crown was not entitled to require Mr. Pearson to commit himself to calling Bard as a witness before providing him with the materials he was entitled to consider in determining whether he should call Bard as a witness.
[17] Since this material did not relate to evidence that the Crown intended to lead at trial, because Bard was not a witness to the events covered by the indictment, his notes and his evidence could not have affected the verdicts returned by the jury. Indeed, as noted by Mr. Justice Fish, Mr. Pearson made it clear in his address to the jury that he did not contest the evidence of the prosecution relevant to the transactions for which he was charged. He sought an acquittal on the basis that he had acted throughout on behalf of the purchaser, rather than the supplier, and was for that reason not guilty of trafficking. But this "defence" was found to be devoid of any merit, since an accused is guilty of trafficking even if acting for the purchaser if, as in this case, he has carried out acts that are caught by the definition of "traffic" set out in section 2 of the Narcotic Control Act (R.S.C. 1985, c. N-1).
[18] That being said, the Court was prepared to accept that the non-disclosure of the Bard information could have had an impact on Mr. Pearson's ability to make out his claim that he had been entrapped, even if, on their face, they did not seem to confirm his theory. As the Court stated, at pp. 563-564:
On the record as we have it, Pearson's defence of entrapment rests on a shifting factual foundation and the cracks in its structure are evident. It does not appear likely that earlier disclosure of the Bard information would have provided the defence with additional material strong enough to have changed the judge's mind. The test, however, is not one of likelihood or probability, but whether non-disclosure impaired Pearson's ability to make full answer and defence and "might have affected the outcome": Stinchcombe, supra.
Applying this test, and taking into account all of the circumstances, I believe justice will best be served by a new trial limited to appellant's defence of entrapment. This will permit the appellant for the first time to present that defence to a Superior Court judge with the benefit of information appellant should have had when the issue was initially tried.
[19] Now in reaching this conclusion, the Court was careful not to put the blame on the Crown for not having disclosed this material to Mr. Pearson in the first place. Not only had the law changed as a result of the Supreme Court decision in Stinchcombe, but the Crown had acted throughout with fairness and a desire to see that justice be done. On that point, Mr. Justice Fish wrote (at p. 561):
In my view, the entire record, both at first instance and in appeal, reveals that Crown counsel has been mindful throughout of his duty to see that justice is done. Evidently bearing in mind that Pearson is not a lawyer and was appearing on his own behalf, counsel for respondent took care at every stage to provide the defence with any material he thought to be helpful. In deciding to remit the documents concerning Bard, the Crown was not acting out of an oblique motive, but rather out of an honestly held belief that the requested material could not possibly assist the defence. This approach, thought now no longer acceptable, did not violate the governing principle enunciated by McEachern C.J.B.C. in R. v. C (M.H.) reproduced above and approved in Stinchcombe.
[20] Having established that Mr. Pearson's guilt in this case was simply a legal consequence of the undisputed and admitted actual facts, and that "no properly instructed jury, acting reasonably, could have returned different verdicts" (p. 540), the Court therefore ordered a new trial before a judge of the Superior Court, but limited to only one issue: whether Mr. Pearson was entitled to a stay of proceedings on the ground of abuse of process by reason of entrapment. Mr. Pearson challenged that decision in the Supreme Court of Canada (R. v. Pearson [1998] 3 S.C.R. 620) and contended, among other things, that the Court of Appeal did not have the power to order a new trial limited to the issue of entrapment. Given the unique nature of the defence of entrapment, not related to the innocence of the accused but to the faulty conduct of the state, the Supreme Court found that section 686(8) of the Criminal Code (allowing a court of appeal to make any order "that justice requires" when allowing an appeal) is broad enough to authorize an order directing a new trial going only to the issue of entrapment.
[21] Commenting on the other grounds of appeal raised by Mr. Pearson, Justices Lamer and Major wrote, on behalf of the majority:
The applicant also raised several other grounds of appeal before this Court. Most of these grounds relate to violations of his Charter rights or to the trial judge's instructions to the jury. Fish J.A.'s analysis of these issues is sound and we do not wish to add to it. The appellant also raised new grounds before us, submitting that the Court of Appeal ought not to have considered new evidence presented by the Crown (the informant's notes referred to above). He also presented this Court with evidence discovered in the course of the second trial on entrapment, which is now pending on appeal before the Quebec Court of Appeal. This evidence mostly relates to the testimony of undercover RCMP officers that the appellant alleges are contradictory. These matters are more appropriately dealt with by the courts below and are irrelevant to our disposition. In any case, if new evidence is discovered that questions the validity of the convictions, the appellant may apply to have his case reopened on the basis of the new evidence. (para 22)
[22] The plaintiff's second entrapment hearing took place before Justice Boilard, of the Quebec Superior Court (No. 500-01-018793-890; November 11, 1994). The evidence made before him was essentially the same as that heard by Justice Hannan and summarized by Justice Fish, with the exception that the informant Guy Bard was called by the accused and testified. According to Bard, there never were discussions nor mentions between himself and the accused concerning Duquette's alleged financial straits. The speculations mentioned by Justice Fish, to the effect that Bard could have been called to testify had Pearson seen Bard's notes, and that Bard could have said that he told Pearson that Duquette was in debt and in danger, therefore never materialized. Accordingly, the evidence of Bard that had not been presented to Justice Hannan "did not change one iota of or shed new light on the facts summarized by Justice Fish at pages 540-548" (p. 6).
[23] After having also heard the testimonies of Rivard, the undercover agent, and other R.C.M.P. officers, Justice Boilard determined that Mr. Pearson's story was "lacking in credit" and was a "preposterous account of an unbelievable story that smacks of perjury" (p. 12). He was also of the view that even if the "Duquette story" were believed, it would not afford preponderant evidence of police entrapment justifying a stay of proceedings since he was himself a drug trafficker. Suggesting to Pearson that he could help him out in paying back his debt by procuring drugs in Montréal that could be purchased at a cheaper price than elsewhere was not, according to his reading of R. v. Mack, above, a prohibited form of inducement by the police. As a result, Justice Boilard entered formal convictions on each of the four counts upon which Mr. Pearson had been found guilty by the jury in 1991, at the conclusion of his trial before Justice Hannan.
[24] Mr. Pearson appealed from that decision, but his appeal was suspended pending the outcome of his other appeal to the Supreme Court of Canada from the previous decision of the Court of Appeal. In a very short decision ([1999] Q.J. No. 5135), the Court of Appeal eventually dismissed his appeal and refused to set aside the verdict of guilt returned by the jury. While leaving the door open to the possibility of overturning a manifestly unjust verdict when properly seized of an appeal against a decision on entrapment only, the Court found that there was no basis in this case for invoking and exercising such a jurisdiction.
[25] As for the other grounds of appeal submitted by Mr. Pearson, having to do with the adequacy of the disclosure in this case and with the inconsistencies between the evidence given by the police officers and the informant before Justice Boilard and their previous evidence, they were equally rejected. The Court wrote, at para. 12:
Appellant's complaint concerning the adequacy of the disclosure relates in part to the fact that certain written materials provided to him by the Crown were edited to conceal information which the Crown considered either privileged or irrelevant, or both. In this regard, the appellant did not invite the trial judge to examine the unedited version of the materials in question in order to ascertain whether he was entitled to know what the Crown had concealed. In this Court, the Crown sought leave to file the unedited version for the Court's scrutiny. The appellant objected. After considering the matter, we concluded at the hearing that it was unnecessary for us, in these circumstances, to take cognizance of the unedited materials and we therefore declined to do so. We have since reviewed appellant's submissions on the issue, as well as his other grounds relating more generally to disclosure, and we have concluded that no reviewable error has been established in this regard.
[26] That second decision of the Quebec Court of Appeal was not appealed. But while that appeal was still pending, Mr. Pearson filed an action for damages in this Court, which was stayed until such time as the Quebec proceedings were finally terminated. In this action, the plaintiff alleges that his prosecution, conviction and imprisonment were in violation of sections 7 and 11 of the Canadian Charter of Rights and Freedoms. More specifically, the plaintiff contends that agents of the Crown wilfully and maliciously failed to disclose documents, tendered fraudulent ones and gave perjured and contradictory evidence, with the effect of depriving him of his right to a fair trial and the liberty and security of his person. At this point, it may be useful to quote in full the four grounds in support of his claim for damages, as they are stated in Mr. Pearson's statement of claim:
15) That the defendant's agents, servants and officers, did by acts and omissions done knowingly, wilfully, maliciously and with malice aforethought, [...] give false evidence that was material to the issues under inquiry, this while giving evidence under oath at the plaintiff's trial and furthermore they did submit fraudulent documents before the trial Court with the unconstitutional objective of depriving the plaintiff of his security and liberty rights and a fair trial, contrary to those rights as guaranteed by the Charter of Rights and Freedoms, ss. 7 and 11(d), Constitution Act 1982, Part 1.
16) That the defendant's agents, servants and officers did by acts and omissions done knowingly, wilfully, maliciously and with malice aforethought deprive the plaintiff of his security and his liberty rights, Charter of Rights and Freedoms, s. 7, and did deprive plaintiff of his right to a fair trial, Charter of Rights and Freedoms s., 7, by committing the immediate above stated perjury (...) and by the tendering of fraudulent documents during the plaintiff's trial on the issue of guilt or innocence ...
17) That the defendant's agents, servants and officers did by acts and omissions done knowingly, wilfully and with malice aforethought bring about the conviction and imprisonment of the plaintiff and deprive the plaintiff of his security and liberty rights by the giving of perjured evidence in a judicial proceeding in respect of material matters that were in issue, guilt or innocence indictment #500-01-018793-890.
18) That the defendant's agents, servants and officers did by acts and omissions done wilfully and knowingly deprive the plaintiff of a fair trial [...] contrary to Charter of Rights and Freedoms, s. 11(d), by disregarding their obligation to disclose to the plaintiff documents that were material and necessary to a fair trial of the issue of guilt or innocence and by their suppression of same until September and November 1994.
[27] As previously mentioned, this judicial process has been going on for more than seven years now, and culminated after a long series of procedural incidents in a trial that took place in two parts. Considering the number of legal issues raised in the various proceedings filed by both parties, and taking into account the limited means of Mr. Pearson, I decided to hold the trial in two parts. The first, which took place in Toronto on October 24 to 26, 2005, was limited to the following legal issues:
- Have the plaintiff's constitutional rights, especially those under ss. 7 and 11d) of the Charter, been infringed as a result of the proceedings that were brought by the Crown against him? If so, how are the damages to be determined?
- To what extent, if any, does the decision of the Quebec Court of Appeal dismissing the plaintiff's submissions with respect to entrapment, bar this Court from hearing this action?
- Does the three year limitation period found in the Quebec Civil Code, as incorporated by s. 39 of the Federal Courts Act, apply on the facts of this case?
- To the extent that it does apply, can such a provision be so construed as to bar a claim for damages made under s. 24 of the Canadian Charter of Rights and Freedoms?
- Is the plaintiff entitled to costs, including those arising from the transportation of witnesses, transportation of documents, and his own travel and accommodation expenses? If so, who should bear those costs?
[28] The second part of the trial, which took place from November 17 to 25, 2005,moved to Montréal. Mr. Pearson summoned a number of witnesses, mostly R.C.M.P. officers involved in the investigation of his case, as well as the undercover agent Rivard and the three Crown attorneys responsible for the prosecution of the plaintiff. Mr. Pearson also sought to have Mr. Bard as a witness, but he could not be located by the Crown since he is not on the Witness Protection Program anymore.
THE PARTIES' SUBMISSIONS
[29] Mr. Pearson's claim for damages rests on his thesis that the defendant wilfully and knowingly suppressed relevant and material documents and personal notes of the witnesses and possible witnesses, thereby curtailing his right of proper cross-examination and depriving him of his right, during the guilt-innocence stage of the trial before the jury, to impeach the credibility of the witnesses called by the Crown, as well as withholding from him relevant information for the purposes of deciding who to assign as witnesses for his defence. Accordingly, he argues that he has been deprived of a full defence and of a fair trial, contrary to sections 7 and 11d) of the Charter of Rights and Freedoms.
[30] As noted by then Associate Chief Justice Richard of this Court in his judgement dismissing Mr. Pearson's appeal from a stay of proceedings imposed until the completion of the matter in criminal court (Pearson v. Canada[1999] F.C.J. No. 1298 (QL)), Mr. Pearson's grounds for claiming damages are essentially the same as those he raised in the Quebec Court of Appeal in 1994. Justice Richard adopted the defendant's summary of the relevant issues raised by the plaintiff in that appeal at paragraph 13:
(1) The Crown unlawfully edited documents remitted to the defence under discovery demand, depriving the plaintiff of a fair trial;
(2) The police acted with mala fides, with the sole and unique motive to punish and imprison the plaintiff, for a lengthy period of time.
(3) The Crown suppressed evidence and knowingly tendered perjured testimony.
(4) The Crown knowingly and wilfully misled the defence and the trial judge.
(5) The plaintiff was denied his right to a fair trial under section 11(d) of the Charter and deprived him of his rights, as guaranteed by section 7 of the Charter.
[31] Mr. Pearson vigorously objected to his claim being characterized as a collateral attack on the decisions of the Quebec courts. First of all, he submitted that neither Justices Hannan and Boilard, from the Superior Court, nor the Court of Appeal ever had the benefit of seeing the documents that he was seeking from the Crown. As he recounted, he made an application, both at his preliminary enquiry and at his trial, for disclosure of certain documents from all the Crown investigators and witnesses, but it was denied. He then asked that some Crown witnesses be called, but this was also denied. He then presented motions, verbal and written, both prior and during the trial, seeking a voir dire to determine whether evidence against him should be excluded under section 24(2) of the Charter because he had been conscripted against himself, but this was also denied. The Crown objected to all of those motions on the ground that their sole purpose was to obtain a pre-trial ventilation of the entrapment issue. The trial judge agreed with the Crown, and the Court of Appeal confirmed that ruling in paragraph 106 of its 1994 decision, above.
[32] Following that first decision of the Quebec Court of Appeal, the Crown Attorney at the time (Me Michel Viens) went further than requested by offering to provide to the accused not only the informant Bard's notes, criminal record and terms of his arrangement with the R.C.M.P., but also the investigative reports relevant to his case. Some portions of these reports were deleted, because they related to other persons investigated or to investigative techniques. Mr. Pearson refused to consult these documents because they were vetted. As a result of his objection, Justice Barette-Joncas ordered the documents to be sealed and to be opened by the trial judge. But Justice Boilard refused to look at these documents and to unvet them, on the basis that they had nothing to do with the issue of entrapment, which was the only issue before him. As a result, Mr. Pearson alleged that the Quebec courts never pronounced on the substance of his claim in this Court since they never looked at the documents that were brought forward before me and therefore never ruled on his arguments.
[33] The Quebec Court of Appeal's finding that Bard's notes had no relevance at the guilt-innocence stage is also immaterial, according to Mr. Pearson, and should not preclude this Court from finding otherwise, since I now have the advantage of having seen all the notes and of being apprised of all the facts that were unknown to the Quebec Court of Appeal. The fact that he admitted the transactions had nothing to do with guilt or innocence, in his view, because what he told the jury was that he acted as a mere agent of the purchaser, i.e. the R.C.M.P. His submission all along was that Rivard had asked him if he could find someone from whom he could buy hashish and cocaine, not whether he could buy the drug from him directly. Had the jury been made aware of all the notes from all the witnesses, and of the contradictions that would have arisen from his cross-examinations on the basis of these notes, the verdict could well have been different. As he put it, had Rivard been found to be lying, it might very well have been the straw that broke the camel's back!
[34] All of this goes to show, again from Mr. Pearson's perspective, that the documents he requested were extremely relevant and would have been material as part of his defence arsenal, not only at the entrapment hearing but also at the guilt-innocence stage. As he stressed on a number of occasions, this is not an attempt to have the verdict overturned, but to show the significance of the evidence that the Crown, in his submission, hid from him. Whether the verdict would have been different, according to the plaintiff, is irrelevant; the mere fact that the Crown violated his right to a full defence and to a fair trial by not disclosing important pieces of evidence is enough to justify an award of damages.
[35] Not surprisingly, the defendant opposes Mr. Pearson's contentions most adamantly. In asking this Court to conclude that the documents he was seeking from the Crown would have had an impact on the verdict reached by the jury, says the defendant, Mr. Pearson is asking this Court to revisit the decision handed down by the Quebec Court of Appeal in 1994. In affirming the verdicts of the jury and ordering a new trial limited to the issue of entrapment, the Court of Appeal came to the conclusion that the material which Mr. Pearson argued should have been disclosed to him could not have affected the verdicts returned by the jury. This finding was based on the fact that Mr. Pearson had not contested the evidence of the prosecution relevant to the transactions for which he was charged, therefore making it impossible for the jury not to declare him guilty of the offences for which he was charged.
[36] Mr. Lucas, for the defendant, also pointed out that the evidence concerning what took place on June 27th, 1989, when Mr. Pearson was introduced to Mr. Rivard, the R.C.M.P. informant, was at best evidence to set the stage for the transactions; those events were merely in preparation for the completion of the transactions, which took place on July 21 and September 12 of that same year. Additionally, none of the witnesses (except Rivard) whom Mr. Pearson alleged made contradictory statements and even lied to the jury were present at the time of the transactions, and their evidence could therefore have had no impact at the guilt-innocence stage. This was key to the decision of the Court of Appeal to order a new trial limited to the question as to "whether the appellant is entitled to a stay of proceedings on the ground of abuse of process by reason of entrapment" (para. 206).
[37] Counsel for the defendant made much of the following paragraphs found in the 1994 decision of the Quebec Court of Appeal, and that I reproduce here for ease of reference:
130. As seen earlier, Crown counsel did remit to appellant the notes of the three witnesses he intended to call at trial. The material that concerns us here, on the other hand, did not relate to evidence that the Crown intended to lead at trial. As I have already mentioned, Bard was not a witness to the events covered by the indictment. His notes, and his evidence, could not have affected the verdicts returned by the jury.
131. In his address to the jury, as noted earlier, the appellant stated that "[t]here is no dispute as to the actual facts in this case in relation to the actual transactions that took place" [...] On the same note, he told the jury as well that "what the accused was doing was purchasing narcotics with funds provided with the R.C.M.P. for the R.C.M.P." [...]; that "[the jury has not] heard one iota of proof that the accused committed any offence, small or big, except with the R.C.M.P." [...]; and finally, that "[a]ll of the evidence, when looked at clearly, ...shows that the accused was purchasing for the R.C.M.P. and that [the] accused,...furnished with the money to make the purchase, gave these particular items to Mr. Rivard." [...]
132. In this light, I am unable to see how the non-disclosure of Bard's notes could have affected the appellant's preparation of his defence at the guilt-innocence stage, since he did not challenge, let alone seek to contradict, the evidentiary basis of the Crown's case against him.
133. I mentioned at the outset that appellant's position before the jury was that, as regards the first three counts, he acted at all times as the agent of the purchaser. Concerning counts 4 and 5, appellant contended that the uncontested evidence did not, as a matter of law, constitute the offences of trafficking charged.
134. I also indicated that these "defences" are, for purely legal reasons, entirely devoid of merit. Even if acting for the purchaser, an accused is guilty of trafficking if, as in this case, he has carried out acts that are caught by the definition of "traffic" set out in section 2 of the Narcotic Control Act [...]
[38] For this Court to conclude that the documents sought by Mr. Pearson could have changed the verdict, so goes the argument made on behalf of the defendant, would undermine that finding of the Quebec Court of Appeal. It does not matter that the Court of Appeal did not know all the evidence allegedly concealed when reaching their decision in 1994, since Mr. Pearson had admitted the transactions. This was a critical factor in their decision, and it was upheld by the Supreme Court of Canada in 1999. There is, therefore, no room left for this Court to reach a different conclusion.
[39] Counsel for the defendant also stressed that Justice Boilard, who had the same evidence that was put before this Court, did not believe Mr. Pearson's story of entrapment and found that it was not corroborated by the evidence of Bard. To use Justice Boilard's words, "[t]he evidence of Bard that had not been presented to Justice Hannan did not change one iota of or shed new light on the facts summarized by Justice Fish at pages 540-548" (page 6). This ruling, again, was confirmed by the Quebec Court of Appeal, despite Mr. Pearson's valiant efforts to reverse it. It is now too late, according to the defendant, to revisit all these decisions; the plaintiff is only allowed one kick at the can.
[40] Alternatively, the defendant argued that even if I am not foreclosed by the Quebec courts' decisions from reopening the remedies to which Mr. Pearson should be entitled as a result of non-disclosure, I should not grant damages since no fault has been established. In Mr. Savary's submissions, the violation of a Charter right does not automatically translate into damages. There is no parallel regime of damages under the Charter alongside the one determined in accordance with the law of the province in which the cause of action arose. Therefore, Mr. Pearson would have to meet the criteria set forth by the Civil Code of Québec, that is he must establish a fault, damage, and a causal link between that fault and the damage.
[41] Mr. Pearson was unable to demonstrate that the Crown officers, be they crown attorneys or R.C.M.P. agents, committed a fault. First of all, the decision of the Supreme Court of Canada in R. v. Stinchcombe, above, which expanded the obligations of the Crown with respect to disclosure of documents, came out after the completion of the first trial before Justice Hannan. The Crown can certainly not be blamed for having complied with the law as it stood at the time the trial took place. As for the alleged fraudulent documents and false evidence given by R.C.M.P. officers, nothing of the kind was established by Mr. Pearson in the course of this trial. The alleged contradictions in the testimonies of some witnesses between what they have said in front of Justice Boilard and in this Court are at best discrepancies of no significance, and of no relevance to the issue of guilt.
[42] Finally, Mr. Savary submitted on behalf of the defendant that there is absolutely no concrete evidence with respect to the material or psychological damages that Mr. Pearson has suffered. But more importantly, it would be impossible to draw a connection between the non-disclosure and the loss of income that Mr. Pearson would have suffered without changing the guilty verdict that sent Mr. Pearson to jail. This Court does not have the jurisdiction to look into the guilt of Mr. Pearson and to second guess the conclusions reached by the Quebec courts as to the impact the non-disclosure of certain documents could have had on the verdict of the jury.
ISSUES
[43] As can be seen from the foregoing summary of the parties submissions, the issues underlying Mr. Pearson's claim for damages are both wide ranging and complex, to say nothing about their novelty and peculiarity. It seems to me, however, that the questions to be resolved to assess Mr. Pearson's action can be distilled to the following ones:
- Is the Federal Court foreclosed by the decisions of the Quebec courts, and especially by the 1994 decision of the Quebec Court of Appeal, from reopening the remedies to which Mr. Pearson might be entitled as a result of the alleged non-disclosure of the Crown at his trial?
- If not, has Mr. Pearson been successful in establishing his claim, on the basis of the evidence (documentary and through witnesses) submitted to this Court?
- Has Mr. Pearson's claim lapsed as a result of time limitations found in the Civil Code of Québec?
ANALYSIS
1) Is the plaintiff's claim prescribed?
[44] I shall deal first with the last of the issues outlined above, as a finding that Mr. Pearson's claim is prescribed would effectively put an end to his action against the defendant. Relying on Béliveau St-Jacques v. Fédération des employées et employés de services publics Inc., [1996] 2 S.C.R. 345, counsel for the defendant argued that a claim for damages based on section 24 of the Canadian Charter of Rights and Freedoms is to be assimilated and treated as a civil claim. As a result, the Quebec law relating to prescription should govern, since the cause of action arose in the province of Quebec. Section 2925 of the Civil Code of Québec, S.Q. 1991, c. 64 provides that an action to enforce a personal right is prescribed by three years; even assuming that Mr. Pearson was not aware of the facts that could have given rise to the beginning of the limitation period before the 16th of November 1994, during the second entrapment hearing (in the course of which he discovered material that he pretends to prove his claim), his action was long prescribed when commenced in this Court in 1999.
[45] Mr. Pearson, on the other hand, has several prongs to his argument on this issue. First, he alleges that provincial time limitations (or, for that matter, time limitations found in federal statutes) cannot apply to bar his claim as it is grounded in the Charter. He also argued, alternatively, that the breach of his rights is ongoing and that the continuing disclosure of documents prevents the limitation period from commencing. Finally, he claims that his cause of action does not arise only in one province and should therefore be prescribed by six years, pursuant to s. 39(2) of the Federal Courts Act.
[46] There has been much debate around this issue as to whether limitation periods found in provincial statutes apply to Charter-based claims, both among academics and in the various courts of the country. My colleague Prothonotary Aronovitch has thoroughly canvassed the case law on this question in her reasons for denying the motion to strike brought by the defendant (2003 FC 1058). And the Supreme Court of Canada has not yet ruled explicitly on this question.
[47] The starting point of a discussion around this issue has to be the decision of the Supreme Court of Canada in R. v. Mills, [1986] 1 S.C.R. 863. In that case, the Court determined that, in appropriate circumstances, damages could be an appropriate remedy. Commenting on what constitutes a court of competent jurisdiction for the purposes of section 24(1) of the Charter, Justices Lamer (in dissent), La Forest and McIntyre (for the majority) agreed that the Charter was not adopted in a vacuum, and "was not intended to turn the Canadian legal system upside down", to use the words of Justice McIntyre (at para. 263). As Justice La Forest aptly put it:
...I am sympathetic to the view that Charter remedies should, in general, be accorded within the normal procedural context in which an issue arises. I do not believe s. 24 of the Charter requires the wholesale invention of a parallel system for the administration of Charter rights over and above the machinery already available for the administration of justice.
(Para. 294. See also, to the same effect, Justice McIntyre at para. 268)
[48] It is also well established that the award of damages, both compensatory and punitive, is a remedy available to an individual whose rights have been infringed by the state. Justice Lamer hinted at this possibility for the first time in his dissent in R. v. Mills, above (at para. 242). He came back to this issue in Nelles v. Ontario, [1989] 2 S.C.R. 170; in that case, Justice Lamer explicitly recognized the possibility of awarding damages in discussing the alternative remedies that might be available to a victim of malicious prosecution. If there were any remaining doubts on this issue, they were finally put to rest in MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311. Writing for a unanimous court, Justices Sopinka and Cory stated at p. 342 that "[t]his Court has on several occasions accepted the principle that damages may be awarded for a breach of Charter rights".
[49] Despite this clear pronouncement to the effect that damages can be a remedy for a Charter breach, there have been very few cases where such damages have been awarded. As a result, it is not yet entirely clear on what legal basis such damages rest. In most cases where damages have been awarded, there has been no real discussion of the underlying principles. For example, there has been much debate as to whether section 24(1) of the Canadian Charter creates a separate and independent right to damages, or whether the infringement of a guaranteed right must be equated to the wrongful behaviour requirement allowing the victim to claim damages according to the general legal regime of civil liability. Similarly, there has been disagreement about the need for bad faith on the part of the government actor before damages can be awarded. I shall revert to these issues later on in these reasons.
[50] But whatever the answer to these questions, there is a clear consensus that an award of damages contingent on a Charter violation must take place within the general legal regime of the province where the cause of action (or the alleged violation of a fundamental right) has taken place. This is to say that the rules governing evidence, procedure and jurisdiction related to this field of the law must generally find application, since the Charter itself does not provide a parallel architecture to that found in the various provincial and federal statutory schemes.
[51] This is indeed the position followed by most courts of the country with respect to time limitations related to claims for damages resulting from a violation of a Charter right: McGillivary v. New Brunswick,(1994), 111 D.L.R.(4th) 483 (N.B. C.A.); Nagy v. Phillips (1996), 137 D.L.R.(4th) 715 (Alta C.A.); Gauthier v. Lac Brome (Ville), [1995] A.Q. no 762 (QL); Gauthier v. Lambert, [1988] R.D.J. 14 (Qué. C.A.); [1988] A.Q. no 56 (QL), application for leave to appeal to the Supreme Court denied on May 26, 1988. In this last quoted decision, the Court endorsed the reasoning of the Superior Court judge, who was quite explicit as to the application of time limitation in the context of a claim for damages arising from a most vicious violation of the plaintiff's rights:
La Charte constitutionnelle de 1982 n'a pas fait disparaître toutes les dispositions limitatives des droits des individus, non plus que les notions de prescription. Les recours exercés en vertu de l'article 1053 du code civil qui couvrait déjà, avant l'avènement de la Charte constitutionnelle, la majeure partie de l'éventail des recours possibles par les victimes de préjudice de quelque nature qu'ils soient, mais impliquant la notion de faute, continuent d'être astreints aux courtes prescriptions des articles 2260 et suivants du Code civil et de la Charte n'a rien fait pour modifier ces dispositions du Code civil qui empêchent l'exercice d'un recours après un an, deux ans, trois ans ou cinq ans, lesdits recours étant éteints par le seul écoulement du temps et cette prescription étant opposable d'office, tel que le stipule la loi.
S'il fallait en croire le demandeur, la Charte constitutionnelle aurait ni plus ni moins aboli ces prescriptions sans pour autant en imposer de nouvelles.
La Cour ne peut souscrire à ces vues et, conséquemment, doit appliquer telles qu'elles existent les dispositions de l'article 586 de la Loi sur les cités et villes.
[52] The Federal Court of Appeal followed the same logic in St-Onge v. Canada, [2000] F.C.J. No. 1523 (QL). In endorsing the decision reached by Justice Hugessen at trial, it must be taken to accept his views that "a prescription deadline which generally applies to all actions of the same nature and does not in any way discriminate against certain groups of litigants does not in any way contravene the Charter" ([1999] F.C.J. No. 1842 (QL), at para. 5). Indeed, the only discordant note was sounded by the Ontario Court of Appeal in Prete v. Ontario, [1993] 16 O.R.(3d) 161. Much concerned by the possibility for the state to insulate itself from Charter claims, thereby emasculating the remedy section of the Charter, the Court came to the conclusion that statutes granting immunity and those imposing limitation periods had much in common. It therefore found that a limitation period of six months should be read as not applying to relief claimed under s. 24(1) of the Charter. Relying on comments made by Justice Lamer, in Nelles, above, to the effect that Crown attorneys cannot benefit from an absolute immunity as this would be a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted, Justice Carthy spelled out in the following paragraph what appears to be the rationale for allowing the plaintiff to sue the government for relief despite the expiry of the six month limitation period found in the Public Authorities Protection Act, R.S.O. 1980, c. 393:
In M.(K.) v. M.(H.) [...], La Forest J. describes the historic purposes of limitation periods as providing a time when prospective defendants can be secure that they will not be held to account for ancient obligations, foreclosing claims based on stale evidence, permitting destruction of documents, and assuring that plaintiffs do not sleep on their rights. Those purposes are best served, when Charter remedies are sought, by the court refusing relief on the basis of laches, in appropriate cases. The purpose of the Charter, in so far as it controls excesses by governments, is not at all served by permitting those same governments to decide when they would like to be free of those controls and put their houses in order without further threat of complaint.
[53] Even if that decision has not been followed, it is fair to say that the concerns as to the possibility for a government to immunize itself from the Charter have been echoed in subsequent cases. Referring explicitly to that decision, Justice Hugessen stated in Duplessis v. The Queen 2004 FC 154 that he had "serious doubt" that a government could insulate itself from a Charter based claim by adopting legislation that would be applicable only to its servants, and creating "short draconian prescriptive periods" that would be a mere fraction of what would apply to any other claim (see also, in the same vein, Ravndahl v. Saskatchewan,2004 SKQB 260 [2004] S.J. No. 374 (Sask. Q.B.)).
[54] I believe this flexible approach is not without merit, as it balances out the need to ensure that Charter rights will not be emptied through lack of proper means of enforcement with the acknowledgement that the absence of procedural provisions and rules governing prescriptions must be taken to signal that the civil remedies fashioned by the courts must ordinarily be fitted within the existing systems of civil law. As a result, it will be for the person seeking damages under section 24(1) of the Charter to prove that a particular time limitation deprives him or her of an appropriate and just remedy; only then will the burden shift on the government to justify the limitation on the right to sue the state for damages as a result of its actions. In other words, prescriptions found in provincial and federal statutes are not, in and of themselves, antithetical to section 24(1) of the Charter. The purposes of limitation periods are as valid in the context of a Charter claim as they are for any other type of claims; a claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right. As long as the government is not trying to do indirectly what it could not do directly, I see no reason not to apply a limitation period.
[55] In this particular case, the plaintiff has not even attempted to show that the applicable limitation period is objectionable and tantamount to a deprivation of his right to obtain an appropriate and just remedy. Nor do I think such an argument could have succeeded. Section 32 of the Crown Liability and Proceedings Act, R.S. 1985, c. C-50, reads as follows:
32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.
[56] A similar referential provision appears in the Federal Courts Act, R.S.C. 1985, c. F-7, s. 39. The cause of action having arisen in Montréal, we must therefore turn to Book Eight of the Quebec Civil Code, which deals with prescription. Article 2877 states clearly that the State is governed by the same rules of prescription as any other person. In the case of an action to enforce a personal right (which is clearly the case here), the prescriptive period is set by article 2925 at three years. On the face of it, this time limitation does not appear to be objectionable. Not only is the time period not overly short, but it does not put the state on a more favorable footing than the ordinary citizen. And the same could be said, incidentally, of the prescription regime that predated the Quebec Civil Code and that is found in the Civil Code of Lower Canada. Article 2261, which was in force at the time the alleged violations took place, held that an action for damages resulting from offences and quasi-offences was prescribed by two years.
[57] In the absence of any argument or evidence to the contrary, I am unable to conclude that these limitation periods should be held inapplicable to a claim based on section 24(1) of the Charter. They bear none of the deficiencies that brought the Court of Appeal of Ontario to hold in Prete that a limitation period should not apply.
[58] As for Mr. Pearson's other arguments with respect to prescription, I do not think that they have much merit. Article 2880 of the Quebec Civil Code states that "the day on which the right of action arises fixes the beginning of the period of extinctive prescription", thus taking care of his submission relating to the continuing nature of the alleged offence committed by the defendant. The same goes as regards his submission that the prescription period should be six years since his cause of action arose otherwise than in a province, pursuant to s. 39(2) of the Federal Courts Act. The fact that some police officers came from Ottawa in the course of the investigation that lead to his arrest, that the head office of the R.C.M.P. is similarly situated in Ottawa or that many of the documents that he requested were kept in Ottawa is immaterial to the situs of the cause of action. The transactions for which Mr. Pearson was found guilty, as well as the alleged misbehaviors of Crown attorneys and police officers, all took place in Montréal. These are the grounds for his claim, or the causes of action; everything else is purely incidental and of no import in the application of s. 39 of the Federal Courts Act.
[59] Even if I were prepared to hold that the prescription period began to run on November 1994, as the defendant was prepared to concede, it is obvious that the plaintiff was foreclosed from filing this action in 1999. The prescriptive period ended, at the latest, in November 1997. I could therefore dispose of this claim for damages on that sole ground. But in light of the uncertainty surrounding the whole issue of prescription in relation to Charter based claims, because the other issues identified earlier in these reasons have been addressed at length, and because I feel compelled to make some findings of fact as a result of hearing the submissions of the witnesses, I will proceed with my analysis on these other issues.
2) Do the decisions of the Quebeccourts preclude this Court from looking into the plaintiff's claim?
[60] Having carefully reviewed Mr. Pearson's arguments and the various decisions of the Quebec Courts related to his criminal conviction, I fail to see how I could grant the relief sought. No matter how one looks at the plaintiff's claim, damages can only be awarded if one comes to the conclusion that the defendant, through his agents (Crown attorneys and R.C.M.P. officers), not only infringed Mr. Pearson's right to a fair trial but that these violations caused him to be convicted and imprisoned. To reach this conclusion, I would inevitably have to second guess the Court of Appeal of Quebec in its findings both of 1994 and 1999. Here is why.
[61] As a result of the decision rendered by the Supreme Court of Canada in R. v. Stinchcombe, above, and reiterated in R. v. Egger, above and R. v. Chaplin, [1995] 1 S.C.R. 727, the threshold requirement for disclosure is quite low. In Stinchcombe, it was determined that the Crown has an ethical and constitutional obligation to disclose all information in its possession or control that could be useful for the defence, unless the information in question is clearly irrelevant or protected by a recognized form of privilege. Because the right to disclosure of all relevant material has such a broad scope, it may include material which will likely be of marginal value to the ultimate issues of the trial. Therefore, the nature of the remedy will have to be tailored to the extent of the infringement on the accused's right to a fair trial. As the Supreme Court said in R. v. Dixon, [1998] 1 S.C.R. 244, at para. 23-24:
It follows that the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process. In those circumstances there would be no basis for granting the remedy of a new trial under s. 24(1) of the Charter, since no harm has been suffered by the accused.
[...]
...an appellate court may well find that an accused's Charter right to disclosure has been breached, and yet deny the remedy of a new trial if it is found that the trial process was fundamentally fair and that there was no reasonable possibility the result at trial might have been different had the undisclosed material been produced. The right to full disclosure is just one component of the right to make full answer and defence. It does not automatically follow that solely because the right to disclosure was violated, the Charter right to make full answer and defence was impaired.
[62] In other words, it will not be enough for an accused to establish that the undisclosed information meets the Stinchcombe standard. In order to get a new trial from a court of appeal, the accused will also have to demonstrate that there is a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process. This is precisely the two-part test that the Court of Appeal of Quebec set out to follow in its 1994 decision.
[63] After having concluded that the Crown should have turned over the notes from the police informant Bard to the plaintiff, the Court came to the conclusion that the appropriate remedy in the circumstances was to order a new trial before a judge of the Superior Court limited to one issue, that of entrapment. The Court of Appeal came to that conclusion, as indicated previously (see para. 37 of these reasons), essentially for two reasons. First, Mr. Bard was not a witness to the transactions leading to the indictment, and his testimony could therefore have no impact on the verdicts returned by the jury. Second, the plaintiff admitted the facts in relation to the actual transactions that took place. It may have been a tactical mistake for Mr. Pearson to make that admission, in light of the Court's decision to reject his theory that he was at all time the mere agent of the purchaser. But it is definitely too late now to try to set the clock back.
[64] There was therefore no basis for the Court of Appeal to stay the proceeding or to order a new trial where the plaintiff's guilt would be reexamined. As the Court stated, "[t]hough given every opportunity to do so, appellant has not shown that the Crown's incomplete disclosure caused him any prejudice whatever at the guilt-innocence stage of the proceedings" (para. 142).
[65] Nevertheless, the Court of Appeal gave a remedy to Mr. Pearson in ordering a new trial limited to his defence of entrapment, despite the fact that Bard's notes (which they had seen) did not tend to corroborate the plaintiff's story. As the Court itself put it (at para. 155):
On the record as we have it, Pearson's defence of entrapment rests on a shifting factual foundation and the cracks in its structure are evident. It does not appear likely that earlier disclosure of the Bard information would have provided the defence with additional material strong enough to have changed the judge's mind. The test, however, is not one of likelihood or probability, but whether non-disclosure impaired Pearson's ability to make full answer and defence and "might have affected the outcome": Stinchcombe, supra.
[66] It bears repeating that the Supreme Court of Canada upheld the decision of the Court of Appeal and explicitly confirmed the authority of an appellate court to limit the scope of a new trial in this way, on the basis of section 686(8) of the Criminal Code of Canada. In his submissions before me, Mr. Pearson repeatedly argued that the Court of Appeal may well have ruled differently had they known all the information that was later disclosed to him, and not just Bard's notes. But most of these notes and documents refer to the events that took place on June 27, and not to the actual transactions for which Mr. Pearson was arrested and eventually convicted. Consequently, that information, much like Bard's notes, could only be relevant to the entrapment stage of the trial and could be of no import on the verdict returned by the jury.
[67] It follows from the foregoing that Mr. Pearson was afforded an appropriate and just remedy by the Court of Appeal. It turned out that his story was not believed by Justice Boilard (see para. 22-23 of these reasons), and that decision was once more upheld by the Court of Appeal of Quebec. It is interesting to note that the Court went out of its way to mention that there would be no basis to set aside the verdict, even assuming it had that jurisdiction on an appeal against a decision on entrapment only (para. 8).
[68] On the issue of disclosure, it will be recalled that Justice Boilard refused to entertain the various motions for disclosure brought by the plaintiff. Mr. Pearson returned to the attack in the Court of Appeal (R.v. Pearson [1999] QJ No. 5135 (QL)), but to no avail, as can be seen from paragraph 12 of that decision:
Appellant's complaint concerning the adequacy of the disclosure relates in part to the fact that certain written materials provided to him by the Crown were edited to conceal information which the Crown considered either privileged or irrelevant, or both. In this regard, the appellant did not invite the trial judge to examine the unedited version of the materials in question in order to ascertain whether he was entitled to know what the Crown had concealed. In this Court, the Crown sought leave to file the unedited version for the Court's scrutiny. The appellant objected. After considering the matter, we concluded at the hearing that it was unnecessary for us, in the circumstances, to take cognizance of the unedited materials and we therefore declined to do so. We have since reviewed appellant's submissions on the issue, as well as his other grounds relating more generally to disclosure, and we have concluded that no reviewable error has been established in this regard.
[69] In light of this short recapitulation of what took place in the Quebec courts, at least three conclusions can be drawn. First, the issue of disclosure, and indeed most of the arguments raised by the plaintiff in this Court, have been thoroughly canvassed twice by the Superior Court and the Court of Appeal of Quebec, as well as by the Supreme Court of Canada. Secondly, Mr. Pearson has been granted a remedy pursuant to section 24(1) of the Charter of Rights and Freedoms in obtaining a new trial limited to entrapment. Finally, and most importantly, I cannot grant the remedy sought from this Court by Mr. Pearson without concluding that the non-disclosure by the Crown and the alleged perjuries of some of its witnesses may have had an impact on the verdict. Such a conclusion would be in direct contradiction to the 1994 decision of the Court of Appeal of Quebec. Accordingly, and for all of these reasons, I must reject Mr. Pearson's claim for damages. As has been found in a number of cases, it is an abuse of process to attempt to relitigate a claim which has already been determined by the courts (Toronto(City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77; Canam Enterprises Inc. v. Coles (2000), 51 O.R.(3d) 481 (C.A.), at para. 55-56, per Justice Goudge, dissenting (approved [2002] 3 S.C.R. 307)).
3) Has Mr. Pearson been successful in establishing his claim?
[70] Even if I were to agree with Mr. Pearson that I am not precluded from adjudicating his claim by the previous decisions of the courts, I could not find in his favour. After having carefully considered the documentary evidence and the testimonies of the various witnesses called by the plaintiff, I am of the view that Mr. Pearson has not made out his claim for damages. I have come to this conclusion for a number of reasons.
[71] Mr. Pearson has argued all along that the Crown willfully and knowingly withheld evidence showing that his conviction was obtained by fraud, knowingly and willfully used perjured testimony, and committed an overall abuse of process that deprived him of a proper defence. This is indeed the basis of his statement of claim, as reproduced above at para. 26 of these reasons.
[72] Mr. Pearson submitted that he was entitled to an award of damages, even if he admitted the transactions that eventually led to his conviction, because the non-disclosure of some documents breached his right to a fair trial. The problem with this thesis is that it was rejected by the Quebec Court of Appeal in 1994. Even if that Court was prepared to order a new trial limited to the appellant's defence of entrapment, nowhere did it find that his constitutional rights had been infringed, despite Mr. Pearson's attempts to demonstrate such a violation.
[73] This finding is entirely consistent with the decision reached by the Supreme Court in R. v. O'Connor, [1995] 4 S.C.R. 411, where the majority ruled that the accused must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer or defence when claiming that the Crown has violated his or her section 7 rights. It is worth reproducing the following extract from the Ontario Court of Appeal in this case, which the Supreme Court quoted with approval (at para. 74):
...the right of an accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence. It is not itself a constitutionally protected right. What this means is that while the Crown has an obligation to disclose, and the accused has a right to all that which the Crown is obligated to disclose, a simple breach of the accused's right to such disclosure does not, in and of itself, constitute a violation of the Charter such as to entitle a remedy under s. 24(1). This flows from the fact that the non-disclosure of information which ought to have been disclosed because it was relevant, in the sense there was a reasonable possibility it could assist the accused in making full answer and defence, will not amount to a violation of the accused's s. 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice unless the accused establishes that the non-disclosure has probably prejudiced or had an adverse effect on his or her ability to make full answer and defence.
It is the distinction between the "reasonable possibility" of impairment of the right to make full answer and defence and the "probable" impairment of that right which marks the difference between a mere breach of the right to relevant disclosure on the one hand and a constitutionally material non-disclosure on the other. [Italics in original; underlining added.]
[74] Needless to say, the Quebec Court of Appeal did not come to the conclusion that the non-disclosure had probably prejudiced Mr. Pearson's ability to make full answer and defence. On the contrary, the Court found that the non-disclosure of Bard's notes could not have affected Mr. Pearson's preparation of his defence at the guilt-innocence stage since he did not seek to contradict the evidentiary basis of the Crown's case against him. As to Mr. Pearson's defence of entrapment, the Court wrote that it rested on a "shifting factual foundation" and that the cracks in its structure were evident. It went on to find that "[i]t does not appear likely that earlier disclosure of the Bard information would have provided the defence with additional material strong enough to have changed the judge's mind" (R. v. Pearson, [1994] Q.J. No. 66, at para. 155). It is therefore on the basis of the test set out in Stinchcombe, above, that the Court decided to order a new trial on the issue of entrapment, and not because of any violation of Mr. Pearson's constitutional right. In other words, it is not because of the likelihood or probability that Mr. Pearson's right to make full answer and defence was impaired that the Court fashioned its remedy, but simply because the non-disclosure might have impaired the outcome of his trial.
[75] That being the case, it would appear that Mr. Pearson cannot rely on section 24(1) of the Charter to claim damages for the violation of his section 7 rights. It is clearly not for this Court to revisit this issue, for all the reasons outlined above. This is plainly a matter pertaining to the criminal law, on which provincial courts have exclusive jurisdiction.
[76] Be that as it may, Mr. Pearson has not succeeded in his attempt to demonstrate that the behaviour of the Crown agents (prosecutors and R.C.M.P. officers) amounted to the type of conduct calling for an award of damages. Even assuming for a moment that I am not precluded from finding in Mr. Pearson's favour, the evidence (both testimonial and documentary) that was laid before me does not demonstrate an infringement of Mr. Pearson's fundamental rights, nor does it show the kind of misconduct that could justify the remedy sought by the plaintiff. At this point, it is necessary to discuss briefly the principles underlying the award of damages in the context of the Charter.
[77] As mentioned before, it has been authoritatively recognized that an award of damages, both compensatory and punitive, is a remedy that a court may consider "appropriate and just" in some circumstances. The Supreme Court nevertheless acknowledged in RJR MacDonald (above, at p. 341) that "damages are not the primary remedy in Charter cases". This may explain why there have been so few cases where damages were awarded as a consequence of a Charter violation, and why there has been even less discussion of the principles underlying such an award of damages.
[78] There appears to be an emerging consensus that section 24(1) grounds an independent relief in damages, separate and autonomous from the damages that can be awarded as a result of an action in civil liability under a provincial or federal statute. Despite the confusion that may have originated from the decision of the Supreme Court in Béliveau St-Jacques v. Fédération des employees et employés de services publics Inc., above, there are now clear indications that an award of damages can be made in appropriate circumstances under section 24(1), unhindered by the legal regimes found in ordinary statutes.
[79] In Béliveau St-Jacques, the majority held that the violation of a right protected by the Quebec Charter of human rights and freedoms (R.S.Q., c. C-12) is equivalent to a civil fault. According to this reasoning, section 49 of the Quebec Charter (which is the equivalent to s. 24(1) of the Canadian Charter) and section 1053 of the Civil Code of Lower Canada (which governed civil responsibility in Quebec) rest on the same legal principle of liability associated with wrongful conduct. As Justice Gonthier put it at paragraphs 120-121:
The violation of one of the guaranteed rights is therefore wrongful behaviour, which, as the Court of Appeal has recognized, breaches the general duty of good conduct [...]. The fact that an interpreter of the Charter first has to clarify the scope of a protected right in light of a specific provision does not make this exercise any different from the one that involves deducing a specific application from the principle recognized in art. 1053 C.C.L.C. Moreover, the first paragraph of art. 1457 of the Civil Code of Québec, S.Q. 1991, c. 64, now takes care to specify that rules of conduct the violation of which results in civil liability may derive from the law:
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
The nature of the damages that may be obtained under the first paragraph of s. 49 [of the Québec Charter] reinforces the parallel with civil liability. It is understood that the moral and material damages awarded by a court following a Charter violation are strictly compensatory in nature. The wording of the provision leaves no doubt in this regard, since it entitles the victim of an unlawful interference with a protected right to obtain "compensation for the moral or material prejudice resulting therefrom". Compensation so awarded will thus comply with the fundamental principle of restitutio in integrum. This means that for a given fact situation, the Charter cannot authorize double compensation or be a basis for awarding damages separate from those that could have been obtained under the general law. The violation of a guaranteed right does not change the general principles of compensation or in itself create independent prejudice. The Charter does not create a parallel compensation system.
[80] The Quebec Court of Appeal was called upon to comment on this ruling of the Supreme Court in Boisclair v. Québec (A.G.), [2001] Q.J. No. 4459. Relying on the last three sentences of the above quoted extract, the Attorney General argued that section 24(1) of the Canadian Charter could not authorize the award of punitive damages, at least in Quebec, since the civil law of that province does not provide for that kind of damages. Responding to this argument, the Court wrote at paragraph 16:
À mon avis, ce texte de l'arrêt Béliveau St-Jacques n'a pas la portée ni le sens que lui donne le Procureur général. La Cour suprême n'a pas exclu une forme de dommages; elle a exprimé l'opinion que la violation de la Charte ne créait pas un préjudice propre et distinct de celui que le droit commun reconnaît à un geste fautif. En d'autres termes, si j'interprète correctement le jugement, cela signifie que la contravention à un droit garanti est une faute qui peut entraîner la responsabilité du contrevenant et donc en faveur de la victime une réparation au sens du droit applicable. Une violation de la Charte ouvre donc la voie à la victime à démontrer le préjudice matériel, personnel ou moral qu'elle a éprouvé ou éprouve encore comme elle le ferait dans toute affaire de responsabilité civile.
[81] Having said that, the Court recognized that the Quebec Civil Code did not make provision for punitive damages but concluded that it could not be a bar to the award of such damages under section 24 of the Canadian Charter. Not only was this type of damages authorized by many other Quebec statutes, first among which was the Quebec Charter, but the Canadian Charter, being a constitutional document, could not be limited in its ambit by a provincial statute, even be it the Civil code of Quebec.
[82] This is indeed entirely consistent with one of its previous rulings, where the Court of Appeal drew a clear distinction between section 49 of the Quebec Charter of Rights and Freedoms and section 24(1) of the Canadian Charter. In Proulx v. Québec (Procureur Général), [1997] A.Q. no 72, Justice Rousseau-Houle, writing for the Court, stressed that section 49 of the Quebec Charter does not supersede other legislative provisions and must therefore be seen as another expression of the general principle underlying the law of torts. This is to be contrasted with the remedial provision found in section 24 of the Canadian Charter, which cannot be assimilated to the general regime of civil liability because of its entrenched nature:
La Charte canadienne reconnaît à son par. 24(1) le droit de toute personne qui s'estime victime d'une violation ou d'une négation d'un droit garanti par la Charte de demander au tribunal compétent une réparation convenable et juste. La Cour suprême a vite identifié les dommages-intérêts comme une réparation possible (Mills c. La Reine, [1986] 1 R.C.S. 863, R. c. Rahey, [1987] 1 R.C.S. 588; Nelles c. Ontario, précité). Malgré les réticences de certains civilistes [...], une importante doctrine [...] considère généralement que la réparation pécuniaire qui découle du paragraphe 24(1) est indépendante du point de vue de sa source formelle, du droit commun de la responsabilité civile et des régimes statutaires particuliers.
Proulx v. Québec (P.G.), supra, para. 65.
[83] In coming to this conclusion, the Quebec Court of Appeal referred to Michaud v. Québec (A.G.), [1996] 3 R.C.S. 3 and Guimond v. Québec (A.G.), [1996] 3 R.C.S. 347, whereby the Supreme Court of Canada quite explicitly recognized that the right to seek damages pursuant to section 24(1) is separate and distinct from the general legal regimes found in provincial and federal law. If the existence of such a right now appears to be settled, the underlying principles governing an award of damages are still much debated.
[84] The Supreme Court having so far refrained from spelling out the circumstances where an award of damages might be appropriate and just, the courts have gone in every direction when grappling with this issue. As previously mentioned, there is disagreement about the need to establish bad faith as a prerequisite for Charter damages. In a recent ruling (Hawley v. Bapoo, 76 O.R. (3d) 649; [2005] O.J. No. 4328 (QL)), Justice Ducharme thoroughly canvassed the case law on this issue and came up with his own helpful analysis and conclusions.
[85] I need not revisit this question for the purposes of the present case, as there is clear authority for the proposition that damages are not appropriate where government actors relied on legislation subsequently declared to be unconstitutional. In Mackin v. New Brunswick(Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405, the majority found that legislation abolishing the system of supernumerary judges for the Provincial Court violated s. 11(d) of the Charter as an unconstitutional encroachment on judicial independence, but refused to award damages. Justice Gonthier, for the majority, explained why in the following paragraphs:
78. According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional. [...] In other words, "[i]nvalidity of governmental action, without more, clearly should not be a basis for liability for harm caused by the action" (K.C. Davis, Administrative Law Treatise (1958), vol. 3, at p. 487). In the legal sense, therefore, both public officials and legislative bodies enjoy limited immunity against actions in civil liability based on the fact that a legislative instrument is invalid.
(...)
79. However, as I stated in Guimond v. Quebec (Attorney General), supra, since the adoption of the Charter, a plaintiff is no longer restricted to an action in damages based on the general law of civil liability. In theory, a plaintiff could seek compensatory and punitive damages by way of "appropriate and just" remedy under s. 24(1) of the Charter. The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the "established and indisputable" laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event that it is clearly wrong, in bad faith or an abuse of power that damages may be awarded.
[86] There is every reason to believe that this rationale must apply with equal force to situations where government actors rely on common law principles, rather than legislative authorization, that are later varied by the courts. This is precisely what happened here. The various Crown prosecutors involved in Mr. Pearson's file operated under the assumption that the only notes they had to disclose were those of the witnesses that the Crown intended to call. These were the rules with respect to disclosure before they were expanded by the decision of the Supreme Court in Stinchcombe, above to cover all information reasonably capable of affecting the accused's ability to make full answer and defence. That being the case, the Crown prosecutors cannot be faulted for not having disclosed all the documents requested by Mr. Pearson; as previously mentioned (see para. 19 of these reasons), this is precisely the conclusion reached by the Quebec Court of Appeal in its 1994 decision, after a careful review of the various steps leading to the trial of the plaintiff. Consequently, an award of damages would not be appropriate and just in the circumstances.
[87] As for the allegations of perjured evidence and fraudulent documents having been tendered by various witnesses, they are simply without merit. I have carefully considered the evidence given by the R.C.M.P. officers called by Mr. Pearson to substantiate his claim, and I even took the time to read the transcripts of these testimonies before writing these reasons, and I can find nothing more than inconsequential discrepancies that are innocent in nature and that can be explained by the passage of time since those events took place. For example, the fact that the R.C.M.P. officer Redmond's notes may have been taken the day after they were dated and may have been based on what was said during a debrief of the informant and of the undercover agent and not on his own observations is immaterial; these notes were taken not for the purpose of being submitted as evidence during the trial but only to refresh his memory if and when asked to testify. This is a far cry from what was represented by Mr. Pearson as a perjured document. As for the alleged contradictions between Mr. Rivard's testimony and his notes, especially with respect to what he may have said to Mr. Pearson when he first met him, they were put to the jury at the trial in an effort to undermine the credibility of that Crown witness; having had the benefit to weigh all the evidence and to listen to all the witnesses, the jury decided that it would not believe Mr. Pearson's theory and found him guilty. Once more, I have heard nothing that would lead me to conclude that the Crown willfully, knowingly and maliciously provided false evidence or condoned the tendering of fraudulent documents.
[88] I am therefore bound to reject Mr. Pearson's claim, even if I were to assume that it is not prescribed and that I am not precluded to look into it as a result of the various decisions made by the courts of criminal jurisdiction. As forceful and persuasive as he was in his honestly held belief that he has been wronged by the Crown in the conduct of his criminal trial, Mr. Pearson has failed to establish that he is entitled to an award of damages. I am unable to conclude that his constitutional rights have been infringed, and that the behaviour of the Crown agents involved in the investigation or in the conduct of his trial was in any way reprehensible, at least to the extent required to call for damages. If, through no fault of the Crown, Mr. Pearson was impaired in his ability to make full answer and defence, he was granted an appropriate and just remedy in obtaining a new trial limited to the issue of entrapment. The Court of Appeal of Quebec did not see fit to award damages to Mr. Pearson, and he cannot now come to this court and ask for what he was denied in the courts of competent jurisdiction. If the plaintiff feels strongly that his defence was jeopardized as a consequence of his ignorance of key documentary evidence, the proper recourse is to try and obtain a reopening of his trial, not to challenge (albeit obliquely) the decisions of the Quebec Superior Court and Court of Appeal in this Court.
4) Costs
Pursuant to an Order made by Justice Muldoon on September 14, 2000, Mr. Pearson was allowed to proceed in forma pauperis. This meant, according to that Order, that:
a) rule 55 is invoked so that the Court dispenses with all rules such as rule 19, and tariffs A and B whereby fees might be levied on the plaintiff, but
b) nothing herein shall be taken to exempt the plaintiff from liability to the defendant for such costs which the trial judge or prothonotary may hereafter impose on the plaintiff for his adjudged misconduct of the case, if any, or for disgorging any witness fees awarded to the plaintiff in order to compensate witnesses called to testify or produce documents at his behest; and
c) costs and fees payable in this litigation shall remain to be disbursed by the plaintiff, if required, in the ordinary discretion of the Court.
[89] In a further direction dated October 4, 2000, Justice Muldoon attempted to clarify his previous order with respect to the costs for which the plaintiff could be liable in favour of the defendant. That direction reads as follows:
Conducting this action in forma pauperis means that the plaintiff could become liable for costs in the defendant's favour only if the plaintiff be found to have committed some willful or negligent misconduct in prosecuting the action. This is intended to describe conduct which falls short of contempt of court, but includes negligence and not paying attention to the rights and convenience of the defendant, and generally of witnesses and Court staff. No judge's or prothonotary's legitimate discretion will be thereby fettered. The plaintiff is on his own self-regulation for good conduct.
Witnesses are not expected to attend free of charge, but if the Court so decides, may have their expenses reimbursed to the plaintiff in costs.
[90] On the basis of these two rulings, Mr. Pearson argued not only that he was exempted from the payment of any filing and court fees pursuant to Schedule "A" and "B", but that he was also entitled to be reimbursed for his expenses (i.e. his travel costs to Montréal, hotel and meals, photocopies). As for the witnesses' expenses, the Crown has voluntarily accepted to take them upon itself, and accordingly they need not be considered in the allocation of costs.
[91] It must be remembered that there is no specific statutory authority to order that a party be permitted to conduct a proceeding in forma pauperis. This Court has acknowledged the possibility of proceeding in forma pauperis only by way of exception, and relying on Rule 55 (see, e.g. Spatling v. Canada(Solicitor General), 2003 FCT 443 (2003); 233 F.T.R. 6 (Proth); Pieters v. Canada(Attorney General), 2004 FC 1418; [2004] F.C.J. No. 1719 (F.C.)). I have been unable to find any case law in this Court in which an order allowing a party to proceed in forma pauperis was considered for costs other than filing and court fees.
[92] As much as I appreciate the financial burden that Mr. Pearson had to bear as a result of the trial taking place for the most part in Montréal, it only made sense to minimize the inconvenience and the costs for the witnesses as they were all from the Montréal area. Mr. Pearson's living and traveling expenses cannot be equated to costs or fees, and I fail to see the basis upon which I could order the Crown to bear those expenses. I hasten to say that Justice Muldoon's Order did not contemplate this issue; indeed, he left it to the presiding judge to decide which of the parties would pay for the expenses of the witnesses appearing on behalf of the plaintiff.
[93] Considering the very special nature of this case, the very limited means of Mr. Pearson and his heartfelt and genuine feeling of grief, the most I am prepared to do is to refrain from making an order as to costs. When one takes into account the considerable resources, both monetary and human, devoted to this case by the Crown, as well as the time spent by judges, prothonotaries and various court officials in bringing this case to trial, Mr. Pearson's expenses appear a small price to pay to see that justice is done.
CONCLUSION
For all the above reasons, Mr. Pearson's claim is dismissed, without costs.
JUDGEMENT
THIS COURT ADJUDGES that Mr. Pearson's claim is dismissed, without costs.
"Yves de Montigny"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-290-99
STYLE OF CAUSE: Edwin Pearson v. Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
Montréal, Quebec
DATE OF HEARING: Toronto / October 24th to October 26th, 2005
Montreal / November 17th to November 25th, 2005
REASONS FOR JUDGMENT
APPEARANCES:
|
Mr. Edwin Pearson, by himself |
FOR THE PLAINTIFF |
|
Mr. Jacques Savary Mr. David Lucas |
FOR THE DEFENDANT |
SOLICITORS OF RECORD:
|
|
FOR THE PLAINTIFF |
|
DEPARTMENT OF JUSTICE OF CANADA Montreal (Quebec) Mr. Jacques Savary and Mr. David Lucas
|
FOR THE DEFENDANT |