Gendreau v. Alberta (Justice), 2010 ABQB 781

Court of Queen ’ s Bench of Alberta Citation: Gendreau v. Alberta (Justice), 2010 ABQB 781 Date: 20101206 Docket: 1010 00800 Registry: Red Deer Between: David Michael Gendreau Plaintiff - and - The Province of Alberta Department of Justice; Calgary Crown Prosecutor Tracy Davis Defendants Restriction on Publication: See the Criminal Code , s. 486.4. By Court Order, information that may identify the complainant may not be published, broadcast, or transmitted in any manner.

There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of J.T. Prowse, Q.C. Master in Chambers _______________________________________________________

Application to amend Statement of Claim for malicious prosecution [ 1 ] The Plaintiff David Michael Gendreau was convicted of sexual assault and unlawful confinement. He has appealed these convictions, but his appeal has not yet been heard. [ 2 ] Gendreau commenced this action against Tracy Davis, a Crown prosecutor who prosecuted him with respect to these charges. Gendreau also named as a defendant “The Province of Alberta Department of Justice”. It is clear that the latter is a misnomer and that Gendreau should have named Her Majesty the Queen in Right of Alberta.

I will allow the Statement of Claim to be amended to correct that misnomer. In these reasons I will refer to Her Majesty the Queen in Right of Alberta as the Crown. [ 3 ] The statement of claim advances claims both for malicious prosecution and for certain steps taken by Davis during the prosecution. [ 4 ] The Defendants apply to strike out the statement of claim on the grounds that (

i) it does not allege that the charges had been withdrawn against Gendreau, or that Gendreau had obtained an acquittal, and (ii) it does not allege an absence of reasonable and probable grounds to prosecute. These are necessary allegations in a claim for malicious prosecution: Nelles v. Ontario , 1989 CanLII 77 (SCC) , [1989] 2 S.C.R. 170, 1989 CarswellOnt 415, 37 C.P.C. (2d) 1, 60 D.L.R. (4 th ) 609.

Unless amended, the claim for malicious prosecution would be struck pursuant to the Nelles decision. [ 5 ] The situation is not quite so clear with respect to Gendreau’s allegations that Davis misconducted herself with respect to various steps taken by her during the prosecution. [ 6 ] Upon return of the motion to strike, Gendreau sought and obtained an adjournment so that he could apply to amend his pleadings. [ 7 ] Gendreau has since retained legal counsel, who makes this application on his behalf to amend the statement of claim. The proposed amendments omit the claim for malicious prosecution.

Instead the amendments reword and reassert Gendreau’s claims arising from certain steps allegedly taken by Davis during her presentation of the Crown’s case. Specifically, the amendments allege that Davis acted maliciously in: (

i) failing to provide timely disclosure of relevant information including, without limitation, the results of analysis of DNA evidence, and, (ii) disclosing confidential records concerning Gendreau to Dr. Pauline Head, whom I understand was a witness in the criminal prosecution of Gendreau. [ 8 ] The proposed amendments assert that Davis’ alleged misconduct breached both Gendreau’s common law rights and his rights pursuant to

Section 7 and

Section 11(

d) of the Canadian Charter of Rights and Freedoms . They also allege breaches of the Freedom of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25 and the Health Information Act , R.S.A. 2000, c. H-5. The court’s discretion to allow amendments under Rule 3.65

[ 9 ] The court has a discretion whether to allow amendments. Pursuant to the decision in S. (C.H.) v. Alberta , 2006 ABQB 528 , 2006 CarswellAlta 919, 34 C.P.C. (6 th ) 378, 403 A.R. 103 (Alta.Q.B.), some relevant considerations in the exercise of that discretion are whether or not the proposed amendments: - are hopeless - are an abuse of process - lack particularity - are supported by evidence Are Gendreau’s proposed claims at common law hopeless? [ 10 ] Gendreau’s proposed amended pleadings are not for malicious prosecution per se , but rather for steps taken by Davis during the course of the prosecution.

Can a claim be advanced at common law against a prosecutor for steps taken during the course of a prosecution, when the elements necessary for malicious prosecution are missing? [ 11 ] At first glance, the decision in German v. Major , 1985 ABCA 176 (CanLII) , 39 Alta.L.R. (2d) 270, 62 A.R. 2, 20 D.L.R. (4 th ) 703, 1985 CarswellAlta 145 (Alta.C.A.) might be taken as an indication that, short of malicious prosecution, a claim cannot be advanced against a prosecutor for damages at common law arising from the conduct of a prosecution.

The Court of Appeal in German stated: “a prosecutor acting in good faith was, at least before the Charter , not liable in tort to an accused for the conduct of a trial in any way other than a suit for malicious prosecution”. [ 12 ] However, the ruling in German was made in the context of allegations of negligence against the prosecutor, not allegations of malice or bad faith. Where allegations of malice and bad faith (short of malicious prosecution) are made against a prosecutor, it is not clear whether a prosecutor is immune from such claims: see Milgaard v.

Kujawa , 1994 CanLII 4592 (SK CA) , [1994] 9 W.W.R. 305, 28 C.P.C. (3d) 137, 118 D.L.R. (4 th ) 653, 1994 CarswellSask 243 (Sask.C.A.); Falloncrest v. Ontario , 1995 CarswellOnt 1064 ; Curry v. Vancouver , 1996 CarswellBC 620 (B.C.S.C.) ; Folland v Ontario , 2003 CanLII 52139 (ON CA) , 2003 CarswellOnt 1087, 225 D.L.R. (4 th ) 50, 64 O.R. (3d) 89 (Ont.C.A.); Miguna v. Ontario (Attorney General) , 2005 CanLII 46385 (ON CA) , 2005 CarswellOnt 7302, 262 D.L.R. (4 th ) 222 at para 11 (Ont. C.A.) .

Consequently, it is not clear and obvious that Gendreau’s proposed claim for common law damages against Davis and the Crown are hopeless. Are Gendreau’s proposed claims under the Charter hopeless? [ 13 ] The Supreme Court of Canada recently considered an award of damages against the Crown for a Charter breach in Ward v. Vancouver (City) , 2010 SCC 27 , 2010 CarswellBC 1947, [2010] 9 W.W.R. 195, 321 D.L.R. (4 th ) 1. The Ward decision makes it clear that damages awarded under section 24(1) of the Charter “are not private law damages, but the distinct remedy of constitutional damages”.

It is also noted that “an action for public law damages - including constitutional damages - lies against the state and not against individual actors”. Consequently, Gendreau’s proposed Charter claims against Davis are hopeless and cannot be allowed. It is not clear and obvious that Gendreau’s proposed Charter claims against the Crown are hopeless. Are Gendreau’s proposed claims an abuse of process? [ 14 ] The Crown submits that the proposed amended pleadings constitute an abuse of the process of the court.

Specifically, the Crown argues that the criminal court which heard Gendreau’s trial, and the Court of Appeal which will hear his appeal from conviction, are the only proper forum to deal with Gendreau’s allegations of misconduct during the course of the prosecution, including the alleged breaches of Gendreau’s Charter rights. [ 15 ] Gendreau’s criminal trial occurred in the Court of Queen’s Bench of Alberta, which had jurisdiction to award costs against the Crown for late disclosure and breaches of the Charter : R. v. Robinson , 1999 CarswellAlta 1192, 75 Alta.L.R. (3d) 117, 250 A.R.201, 1999 ABCA 367 .

[ 16 ] Does the fact that Gendreau could have sought a costs award against the Crown during his criminal trial make the criminal court the exclusive forum where Gendreau can seek recourse for such misconduct? No case authority has been provided to me which definitively answers this question.

Nor has case authority been provided to establish that the court hearing the criminal trial had jurisdiction to entertain claims for breaches of the Freedom of Information and Protection of Privacy Act or the Health Information Act . [ 17 ] A motion to strike is not the appropriate place to dispose of claims which are novel or involve difficult questions of law: First Mortgage v. Boychuk , 2001 ABQB 712 , 2001 CarswellAlta 1115, 291 A.R. 371, 96 Alta.L.R. (3d) 306, at para’s 13 and 14.

Consequently I will not rule out Gendreau’s application for amendments based on the criminal court having exclusive jurisdiction to deal with his claims. Do Gendreau’s amendments lack particularity and are they supported by sufficient evidence? [ 18 ] All statements of claim must assert sufficient facts upon which a cause of action can be founded. As indicated in Tottrup v Alberta (Minister of Environment) , 2000 ABCA 121 (CanLII) , 81 Alta. L.R. (3d) 27, [2000] 9 W.W.R. 21, 255 A.R. 204, at para 11 , (Alta.C.A.), allegations of a breach of a duty of care in a Statement of Claim are not sufficient.

The Statement of Claim must assert facts capable of determining that a cause of action exists. [ 19 ] Likewise, when a statement of claim is being amended, the amendments must contain sufficient particulars: see S.(C.H.) , supra. [ 20 ] I find that the amendments proposed by Gendreau do not meet the test set out in Tottrup , and are lacking in particularity. [ 21 ] For example, dealing with the late disclosure of evidence, what was the timing of the disclosure in the trial process, compared to when Gendreau says the disclosure ought to have been provided? What was the result of the alleged delay?

With respect to the disclosure of confidential records to Dr. Pauline Head, what was the nature of the records disclosed, what were the circumstances and timing of their disclosure, and what flowed from this disclosure?

What sections of the Freedom of Information and Protection of Privacy Act and the Health Information Act were allegedly breached? [ 22 ] Again, dealing with particulars and the necessity to plead facts, there is no mention in the proposed amendments nor in the evidence seeking leave to amend, of the fact that the prosecution conducted by Davis ended in a hung jury (notwithstanding that Gendreau indicated this during his submissions to the court on August 24, 2010). [ 23 ] The proposed amendments do assert some facts, but not enough to provide sufficient factual context to the allegations.

The amendments lean toward asserting conclusions of law, rather than asserting sufficient facts to support a cause of action for common law and constitutional damages. [ 24 ] Nor, in my view, is Gendreau’s application to amend supported by sufficient evidence.

It is true that generally the evidentiary burden to support an application to amend a Statement of Claim is not high: see S.(C.H.) , supra . [ 25 ] Case law indicates that a higher level of evidence is required where the proposed amendments seek to assert allegations such as fraud: MacDonald v. 330932 Alberta Ltd. , 2010 ABQB 689, 2010 CarswellAlta 2176, at para 22 (Alta.Q.B.) . In my view the same higher standard ought to be met where the amendments assert high-handed and malicious conduct. [ 26 ] Gendreau submitted no evidence at all in support of his application to amend.

I allowed the Crown to submit the bare bones of documents necessary to establish the fact of the prosecution, conviction and appeal, which obviates the need for Gendreau to provide that evidentiary background, but I believe further evidence is needed with respect to the facts underlying Gendreau’s proposed claims.

Providing Gendreau with further time [ 27 ] Rather than dismissing Gendreau’s application to amend at this time, I propose to provide him further time to bring forward more particularized proposed amendments. Gendreau may also, within that same time, adduce such evidence as he considers appropriate to support his application to amend. Allowing a limited amount of additional time, rather than dismissing his application with leave to re- apply at leisure, is consistent with Rule 1.4 of the Rules which empowers the court to make procedural rulings which help identify the real issues in dispute and facilitate the quickest means of resolving a claim at the least expense.

Summary of conclusions [ 28 ] The defendant Her Majesty the Queen in Right of Alberta is substituted in place of The Province of Alberta Department of Justice. The descriptive words “Calgary Crown Prosecutor” shall be removed from the style of cause. [ 29 ] The application to amend to assert Charter claims against Davis is dismissed. [ 30 ] The plaintiff is directed to apply with more particularized amendments and supporting evidence within the later of 60 days from the date that these reasons are issued, or 60 days from the final disposition of any appeal taken from this ruling.

Failure to do so will result in his application to amend and this action being struck without a further hearing. Costs [ 31 ] If the parties cannot agree on costs of this application then they can arrange for a telephone application to make submissions in that regard. Heard on the 02 nd day of November, 2010. Dated at the City of Red Deer, Alberta this 6 th day of December, 2010. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances:

Erika Brubaker Engel Brubaker for the Plaintiff Kate Bridgett Alberta Justice for the Defendants