Gladue v. Alberta (Attorney General), 2011 ABQB 651

Court of Queen ’ s Bench of Alberta Citation: Gladue v. Alberta (Attorney General), 2011 ABQB 651 Date: 20111026 Docket: 1003 10248 Registry: Edmonton Between: Brian Kurtis Gladue Applicant - and - Her Majesty the Queen In Right of Alberta As Represented by the Attorney General of Alberta and Michael J. Boyd, Chief of Police of the Edmonton Police Service Respondents _______________________________________________________ Memorandum of Decision on an Issue of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I.

Background [ 1 ] This decision concerns the value of a ceremonial Hudson’s Bay blanket which belonged to Brian Kurtis Gladue and mistakenly was destroyed by the Edmonton Police Service (EPS). Mr. Gladue contends that damages awarded for his loss of the blanket should recognize the cultural, ceremonial, spiritual and psychological significance of the blanket to him and the outrageous nature of the EPS’ action in destroying the blanket.

[ 2 ] Mr. Gladue is a member of the Beaver Lake Cree Nation and held a firearms possession and acquisition license allowing him to acquire and possess non-restricted firearms. [ 3 ] On November 2, 2009, the EPS took possession of a number of firearms from Mr. Gladue, with his consent. One of the firearms, a Winchester Model 94 long gun, was stored beneath the rear passenger seat of a vehicle operated by him. The rifle was wrapped in the red, white and black blanket which is the subject of this trial of an issue. The blanket also was taken by the EPS. [ 4 ] Mr.

Gladue was charged with an offence and the firearms were held by the EPS. It attempted to notify Mr. Gladue that he could come and retrieve the blanket, but the notice was sent to the wrong address. When Mr. Gladue failed to pick up the blanket within 30 days the EPS, in accordance with its standard policy, destroyed the blanket. The EPS acknowledges the blanket was wrongly destroyed by it. [ 5 ] Criminal charges which had been laid against Mr. Gladue were withdrawn at the end of March 2010. [ 6 ] Mr. Gladue applied for replevin of the rifles and blanket.

In his amended originating notice he claimed for breach of his rights under s. 8 of the Charter and for a remedy under s. 24. [ 7 ] In her decision on the replevin application, Veit J held that, for purposes of that hearing, the seizure of Mr. Gladue’s weapons by the police had been lawful: Gladue v Alberta (Attorney General ), 2011 ABQB 183 . She ordered a trial of the issue as to the value of the blanket. II. Evidence [ 8 ] Evidence at the trial of this issue consisted of written witness statements and an expert report filed on behalf of Mr. Gladue.

The EPS chose not to cross-examine the witnesses. [ 9 ] In terms of ownership of the blanket, Veit J noted at para 27 that Mr. Gladue had acknowledged Ms. St. Germain, his partner, was the owner of the long gun wrapped in the blanket. [ 10 ] In a later costs decision on the replevin application ( 2011 ABQB 535 ), Veit J stated at para 14: It was the Edmonton Police Service that clarified the issue around the ownership of the long guns, and established that Ms. Germaine was entitled to certain of his firearms, including the one that was wrapped in a blanket and seized from the vehicle operated by Mr.

Gladue. [ 11 ] Mr. Gladue gave one of the witness statements at this trial. In it, he deposed he had been married to Ms. St. Germain, but they had separated in October 2009. He stated that in the early 1990s he attended a ceremony at which he was adopted by Jonas Cattleman. He explained that: “[a]doption is a traditional method of creating a relationship between people who are not related, in order to pass on traditional ceremonial and spiritual knowledge.” He indicated he assisted Mr. Cattleman with his ceremonial duties, including the Sundance. He deposed he received the 30-30 rifle and blanket from Mr.

Cattleman as a ceremonial gift following a sweatlodge ceremony and the rifle and blanket had spiritual meaning for him. Mr. Gladue stated that they created a bond “between Jonas Cattleman and myself, the knowledge that he passed to me, my obligation to use this knowledge during my lifetime and to pass this knowledge on, and a continuing obligation in the afterlife.”

[12] Mr. Gladue explained it was this 30-30 rifle and ceremonial blanket which had been taken from the back seat of his truck bythe EPS. He indicated that as part of a settlement of matrimonial issues, he had agreed to Ms. St. Germain having two of the otherfirearms which had been seized. [13] The other witness statement tendered at the trial of the issue was by Mr. Melvin Potts of the Montana First Nation in Alberta.He stated he is an elder and carries out Cree spiritual ceremonies, including the Sundance. He deposed he has known Mr. Gladue forabout 25 years.

He explained that [traditional] knowledge is not handed down in written form among the Cree people, but rather by othermeans of communication. He advised that when Elders pray over a blanket wrapped item, the significance of that ceremony is that: ...when you give that item wrapped in a blanket to somebody, especially with a rifle in the blanket, it means life for the person receivingthat blanket and rifle, and for the person giving the blanket and rifle. [14] He stated the giving and receiving of blankets is one of the key gestures that people use at Sundance ceremonies. Mr.

Pottsdeposed he knew Jonas Cattleman, the cultural spiritual leader who gave Mr. Gladue the blanket. [15] A four volume expert report by Dr. David R. Miller was filed on behalf of Mr. Gladue. In this report, Dr. Miller, ananthropologist with a specialization in indigenous/Indian studies and cultural-social anthropology, discussed the sociology of gift giving,especially in hunter and gatherer societies, the practice and meaning associated with traditional adoption, and issues of representationwith respect to objects and their symbolic import. [16] At the hearing before me, counsel for Mr.

Gladue represented that, despite Veit J’s finding the blanket-wrapped riflebelonged to Ms. St. Germain, from which an inference might be drawn the blanket also belonged to her, both actually were Mr. Gladue’sand the rifle had been returned to him. The EPS did not take issue with that representation and acknowledged the blanket had belonged toMr. Gladue. [17] Also during the hearing, counsel for Mr. Gladue took the position the blanket had been destroyed at some time after February12, 2010, when she sent a designated counsel form to the Crown advising she was counsel for Mr.

Gladue in regard to the criminalcharge, and after the EPS had been served with the amended originating notice for replevin in July 2010. Counsel for the EPS advisedshe was under the impression the blanket had been destroyed in March 2010. No actual evidence was introduced by either party at thetrial of the issue as to the date when the blanket was destroyed, although counsel for Mr. Gladue did append to her written submissionsan e-mail string in which a possible date was discussed. [18] The day after the trial had concluded, counsel for the EPS wrote to the court and counsel for Mr.

Gladue to correct theinformation she had provided as to the month when the blanket likely was destroyed. Counsel for Mr. Gladue objected to these post-trialsubmissions.

Both counsel appeared before me on October 7, 2011 to argue whether further evidence should be admitted regarding thedate of destruction of the blanket. [19] In 671122 Ontario Ltd. v Sagaz Industries Canada Inc, 2001 SCC 59 , [2001] 2 S.C.R. 983 at paras 62-63, theSupreme Court of Canada approved of the analysis of the trial judge in that case, who had applied the two-part test set out in Scott vCook, (ON SC), [1970] 2 OR 769 (HC) for determining whether to grant an application to reopen a trial to hear freshevidence: (1) would the evidence, if presented at trial, probably have changed the result; (2) could the evidence have been obtainedbefore trial by the exercise of reasonable diligence? [20] In Alberta (Child, Youth and Family Enhancement, Director) v BM, 2009 ABCA 258, 460 AR 188, Côté JA identified thetests for reopening and varying a decision made by a judge before the formal order or judgment has been signed and entered.

At para 12he commented that: “... most of the cases say that the rules as to when that [whether to admit further evidence on a motion to vary anearlier pronounced judgment or order] should or should not be done are very similar to the well-known rules for receiving new evidenceon appeal to the Court of Appeal. He identified those rules as: 1. Could the evidence have been obtained earlier if due diligence had been observed? ... That the evidence was available to theapplicant but not looked for because it was hard to access and because other matters pressed, is fatal.

2. Is the evidence credible? 3. Would the evidence have been practically conclusive in producing the opposite result to that earlier pronounced? ... A debatablematter of opinion is not sufficient... Nor is controvertible evidence which would open up an extremely complex and convolutedexercise... Some criminal cases use a test less strict, such as likely to produce a different result... 4.

Is the evidence in its present form admissible under the ordinary rules of evidence?... [21] At para 13 Côté JA summarized criteria which had been applied in other cases for deciding whether to reopen a decision andvary it on the merits: 1. Would there be a miscarriage of justice without the reopening?... 2. The power to reopen is to be used sparingly, and the pronounced decision is not to be taken away without very solid grounds... 3. Is the applicant trying to raise a new issue which he could have raised earlier?... 4. A new argument alone is not enough; new important facts are necessary... 5.

Has any other party relied on the order to its detriment?... 6. Does the applicant's new factual stance contradict his earlier factual assertions or evidence? [22] In Nelson v 1153696 Alberta Ltd, 2011 ABCA 203, Paperny JA would have allowed the introduction of fresh evidence on theappeal on the basis that the evidence in question, a Crown grant, was incontrovertible historical evidence which the court was entitled toconsider pursuant to the concept of judicial knowledge.

She advised (at para 51) that, alternatively, she would have accepted it pursuantto the test in Palmer v The Queen, (SCC), [1980] 1 SCR 759, 30 NR 181, which includes the following four factors: 1. the evidence should not generally be admitted if, by due diligence, it could have been adduced at trial; 2. the evidence must bear upon a decisive or potentially decisive issue in the trial; 3. the evidence must be credible in the sense that it is reasonably capable of belief; and 4. the evidence, if believed, could reasonably, when taken with other evidence adduced at trial, be expected to have affected theresult. [23] McDonald JA, with whom Verville J concurred, was of the view the fresh evidence should not be admitted on that appeal as itdid not meet the first criterion in Palmer. [24] In the present case, it is clear that, with due diligence, evidence concerning the date when the blanket was destroyed by theEPS could have been obtained before the trial of the issue before me.

[25] Veit J directed that evidence from regular witnesses to be presented at the trial of the issue was to be provided by way ofwitness statements, which were to be entered as exhibits at the trial. She also directed that the witnesses were to be made available forcross-examination at the trial. [26] None of the witness statements entered at the trial of the issue addressed the date when the blanket was destroyed and neitherparty opted to cross-examine the witnesses. Both parties were entitled to conduct their case on the basis the date had not been proven. [27] Counsel for Mr.

Gladue acknowledged the material appended to her written submissions did not constitute evidence, but tookthe surprising position that, because the EPS knew about that information and it was raised in the trial before Veit J, it was an “agreedfact.” I reject that argument. Simply because a purported fact is mentioned in earlier proceedings does not make it an “agreed fact.” [28] Even if evidence as to the date when the blanket was destroyed could not have been obtained prior to or during the trial, suchevidence would not affect my decision on the directed issue for the reasons given below.

Accordingly, I am not prepared to reopen thetrial of the issue in order to hear that evidence. III. Arguments of the Parties [29] Counsel for Mr. Gladue argued that destruction of the blanket by the EPS was outrageous because it occurred after she hadsent notice to the Crown that she was acting for Mr. Gladue in relation to the criminal charge and the EPS had been served with theamended originating notice. She submitted the holding and destruction of the blanket after the EPS had notice of the rightful owneramounted to a breach of s. 8 of the Charter entitling Mr. Gladue to s. 24(1) damages. [30] Counsel for Mr.

Gladue submitted the conduct of the EPS was especially outrageous as the EPS should have been aware ofthe ceremonial and spiritual significance of a blanket which was wrapped around a firearm. [31] Counsel submitted on behalf of Mr. Gladue that consistent with the recognition of multiculturalism in Canada, s. 24(1)damages in the range of $15,000 would be reasonable for the EPS’ wrongful destruction of his spiritual ceremonial blanket. [32] In support of Mr.

Gladue’s position, counsel cited Butler v Canada (Solicitor General) (1981), (BC SC), 61CCC (2d) 512 at paras 2, 10-19 (BCSC); Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 SCR 28 at paras 4, 16-57; The Union ofIndia v Bumper Development Corp., unreported English QB February 17, 1988, pp 47-76, Bumper Development Corp.

Ltd. vCommissioner of Police of the Metropolis, [1991] 4 All ER 638, Bumper Development Corp. v Home Insurance Co. (1989), (AB KB), 101 AR 264 (QB), Union of India v Bumper Development Corp., unreported Alberta QB April 19, 1995, India(Union) v Bumper Development Corp., [1996] SCCA No. 54; Raymond v United States Fire Insurance Co., (SCC),[1973] SCR 522 at 526; Wepruk v Great Canadian Van Lines Ltd., 2009 BCPC 183 , 2009 BCPC 0183; Klaus v Taylhardat,2007 BCPC 21 , 2007 BCPC 0021, Kressin v Memorial Gardens (BC) Limited, 2004 BCPC 413 , 2004 BCPC 0413;Thomas v Norris; and Chaput v Romain, (SCC), [1955] SCR 834. [33] The EPS did not dispute the blanket was given to Mr.

Gladue by Mr. Cattleman after a sweatlodge as part of a ceremonywhere Mr. Gladue was adopted by Mr. Cattleman into an important kinship relationship. The EPS did not dispute the gift was a symbolof the relationship and of the obligations imposed on Mr. Gladue by that relationship. It did not dispute the importance of gift giving inCree culture. [34] The EPS conceded the blanket had some value. Counsel suggested a Hudson’s Bay Company blanket might have a value of$100 to $500, depending on the size, condition and whether it is new or vintage.

However, counsel pointed out there was no evidence ofthe subject blanket’s age, size or condition at the time it was taken from Mr. Gladue.

[35] While the EPS acknowledged the blanket had great personal significance for Mr. Gladue, it noted there was no evidence theblanket was of particular importance to anyone other than the giver and recipient of the gift. For example, there was no evidence it wasof special value to the Beaver Lake Cree Nation or to a museum. [36] The EPS acknowledged the blanket marked a passage or entry into a relationship for Mr. Gladue, much as a baptismal candle,cross, wedding ring or bar admission certificate might for others.

However, counsel asserted the true value to the recipient of such itemsis not the object itself but the passage which it represents. Further, counsel noted that in Cree culture, a gift may be re-gifted orconsumed, supporting the argument that it is the act of giving and receiving and what is symbolized by the gift which are important. [37] Counsel referred to certain of Mr.

Gladue’s authorities and the following additional cases in submitting that damages fordestruction of an object of sentimental value should be calculated on the basis of the item’s market value, if any, unless the plaintiffproves the defendant intentionally destroyed or converted the item or its destruction has caused the plaintiff mental distress: Jennings vWolfe, (AB KB), [1950] 1 WWR 935 (Alta SC); Smith v British Columbia, 2011 BCSC 298; Lippa v Barnable(2002), (NL PC), 630 APR 260 (Nfld PC); Jefferson v Toronto Dominion Bank, 2004 BCPC 152; Mason v Westside Cemeteries Ltd. (1996), (ON SC), 135 DLR (4th) 361 (Ont CJ (Gen Div)); and Martin v Mineral SpringsHospital, 2001 ABQB 58 . [38] The EPS submitted there is no basis for punitive damages.

It did not hold onto the blanket but rather tried to give it back to theowner. It simply made a mistake in Mr. Gladue’s address when sending out notice the blanket was available to be picked up. Counsel forthe EPS argued it is separate from the Crown and, therefore, notice to the Crown by counsel for Mr. Gladue that she was acting on hisbehalf in the criminal proceedings was not notice to the EPS. [39] The EPS pointed out that no evidence of mental distress was produced by Mr. Gladue. IV. Analysis [40] It is clear, by the actions it took, that the EPS was not seeking to retain the blanket.

Rather, it attempted to return the blanketto its rightful owner. It sent out a notice that the blanket could be retrieved. That notice was sent to the wrong address. The blanket wasdestroyed by the EPS in accordance with it standard policy when no one picked up the blanket within the time frame set out in its letter. [41] I reject Mr. Gladue’s argument that the EPS acted in a malicious, outrageous or high-handed manner if it destroyed theblanket after the Crown received notice Mr. Gladue was represented on his criminal charge or was served with the amended originatingnotice.

In her decision on the replevin application, Veit J commented at paras 24 and 25 that: While the Crown and the police are indivisible for the purposes of disclosure under the Stinchcombe rules, the two are generallyseparate and independent entitiles: McNeil, McCarthy. Upon the termination of a prosecution, the police, not the Crown, are in care and control of the exhibits: Dore. By analogy, wherefirearms have been seized, the police are responsible for the appropriate disposition of the firearms. [42] I agree with the EPS that it and the Crown are separate for purposes of notice.

Counsel’s notice to the Crown was not noticeto the EPS. In any event, no evidence was presented which would suggest destruction of the blanket by the EPS was malicious orundertaken for some improper motive. The EPS was attempting to return the blanket to the rightful owner. It was simply negligent insending the notice to the wrong address. Further, there is no evidence to suggest the EPS was being high-handed in following its policyof destroying unclaimed property after a specified notice period. [43] I accept that the blanket and rifle in question had a deep spiritual meaning for Mr.

Gladue in that they represented hisrelationship with Mr. Cattleman, the traditional knowledge passed on to Mr. Gladue by his step-father and Mr. Gladue’s obligation toapply and pass on that knowledge.

[ 44 ] Ordinarily, damages for negligent loss or destruction of an item of sentimental or personal value will be calculated by the court on the basis of the item’s market value or replacement cost with certain adjustment: Jennings at para 9 ; Smith at para 41 ; Lippa at para 7 .

The reason is set out in SM Waddams’ The Law of Damages , looseleaf (consulted in 2011), (Aurora, Ont.: Canada Law Book, 1991) p 1-16, in which the author states: There is little authority on the problem of what is called “sentimental value.” It may be that the plaintiff would not have sold his pet dog or his mother’s locket at any price, but this does not entitle him to infinite damages.

References to market value in the older cases suggest that a value entirely idiosyncratic to the plaintiff would be ignored, and it cannot be satisfactory to measure damages by the price the plaintiff would in fact have demanded for the property, not only because of the unreliability of the testimony on such an issue, but also because of the apparent inequity of compensating persons who have lost similar property at different rates according to the strength of their sentiments. [ 45 ] This reasoning was specifically adopted by the court in Mason at para 36 , a case in which a cemetery negligently mislaid the ashes of the plaintiff’s mother and father.

In Lippa at para 9 , Hyslop Prov J explained that: It is not as though the courts have distain for sentimental value. I am sure that judges recognize that certain things have a high sentimental value and that owners often suffer grievous loss as a result of a misappropriation, conversion, or damage to such items by trespass or negligence.

The simple fact is that sentimental value injects a high level of uncertainty into the equation and it lacks the necessary level of precision that the assessment of damages requires. [ 46 ] There are certain exceptions, however, to the general rule that sentimental value will not be taken into account in awarding damages. These were discussed by Gray J of the British Columbia Supreme Court in Smith . The plaintiff in that case had been taken into custody. Corrections staff removed certain items from his person, including an heirloom ring of sentimental value to Mr. Smith. The items subsequently were lost. Mr.

Smith claimed the value of the items and punitive damages. [ 47 ] Gray J characterized the situation as a bailment and held at para 38 the measure of damages for a breach of the bailee’s responsibilities is available under the torts of conversion or detinue and the measure of damages under either will amount to the value of the item as at the date of trial together with any non-remote consequential damages flowing from the conversion. He indicated the court could take into account the replacement cost and adjust for pre-loss depreciation or post-reinstatement betterment.

Gray J also noted at para 42 the court may consider sentimental value (1) in a claim for breach of a “peace of mind” contract; (2) when awarding damages for mental distress; or (3) where punitive damages are available. [ 48 ] In Wharton v Tom Harris Chevrolet Oldsmobile Cadillac Ltd. , 2002 BCCA 78 at para 57 , the court noted that “[a] contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension, or aggravation which the breach of contract may cause to the innocent party,” but confirmed that aggravated damages could be awarded: ...

Where a major or important part of the contract is to give pleasure, relaxation or peace of mind, damages will be awarded if the fruit of the contract is not provided or if the contrary result is instead procured. [ 49 ] The situation in the case before me did not involve a “peace of mind” contract such as in Wepruk (safe and timely delivery of a piano of sentimental value), Klaus (provision of wedding photographs) and Kressin (provision of a dignified burial ceremony and videotaping of the service). [ 50 ] In Mason at para 54 , Molloy J commented that damages for emotional upset or mental distress generally are awarded in tort cases only if physical symptoms or some recognizable psychiatric illness has resulted (see also L.N.

Klar. Tort Law , 4 th ed. (Toronto: Thomson Carswell, 2008) at pp 477-478. Mental distress must be a foreseeable result of the negligence or other tort. [ 51 ] Mr. Gladue did not present any evidence in the present case that he suffered mental distress as a result of the destruction of the blanket. In any event, there was no evidence before me of anyone having advised the EPS the blanket in this case was a ceremonial one

of particular cultural and spiritual value to Mr. Gladue. I reject the contention by counsel for Mr. Gladue that, even in the absence of suchadvice, the EPS ought to have been aware of the significance of the blanket because it was wrapped around a gun. No evidence wasoffered establishing it was wrapped in a way unique to the gift giving ceremony or in some other culturally unique manner which oughtto have been apparent to the EPS. As a result, it cannot be said it was foreseeable to the EPS that, if it wrongly destroyed the blanket,Mr.

Gladue might suffer mental distress. [52] Punitive damages may be awarded where the defendant’s conduct is so malicious, oppressive and high-handed as to offendthe court’s sense of decency: Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130 at para 196, as citedin Smith at para 99. [53] As stated above, there is no evidence establishing that the conduct of the EPS meets that test. I conclude there is no basis foran award of punitive damages. [54] Mr. Gladue asks for s. 24(1) damages for breach by the EPS of his s. 8 Charter rights.

His counsel submits that such damagescan and should take into consideration the spiritual and ceremonial value of the blanket. [55] In Vancouver (City) at para 4, McLachlin CJ confirmed that damages may be awarded under s. 24(1) for a Charter breachwhere appropriate and just. At para 22 she clarified that these are not private law damages but rather the distinct remedy of constitutionaldamages. She advised that the first step in the inquiry is to establish that a Charter right has been breached. [56] According to Veit J in her decision on the replevin application, the EPS seized the firearms with Mr.

Gladue’s and Ms. St.Germaine’s consent. The EPS also took the blanket in which the 30-30 long gun was wrapped. Veit J made no finding of a s. 8 breach.The EPS did not attempt to hold onto the blanket. Rather, it attempted to return the blanket to its rightful owner. The trial before me wasto establish the value of the blanket. It was not to address the issue of whether there was a s. 8 breach. Nevertheless, the evidence beforeme does not prove a s. 8 breach in relation to the blanket. [57] At best, Mr. Gladue is entitled to the market value or replacement cost of the blanket.

No evidence was presented of thatvalue. The parties are to notify me within two weeks if they are unable to agree on such value and on costs. I remain seized with thoseissues. Heard on September 12, 2011 and October 7, 2011. Dated at the City of Edmonton, Alberta this 26th day of October, 2011. D.L. Shelley J.C.Q.B.A. Appearances:

Priscilla Kennedy Davis, LLP for the Applicant Christine J. Pratt Field LLP for the Respondent