Polsom v Couston, 2014 ABQB 713

Court of Queen ’ s Bench of Alberta Citation: Polsom v Couston, 2014 ABQB 713 Date: 20141118 Docket: 1301 06134 Registry: Calgary Between: Danielle Polsom Plaintiff - and - Kenneth Terrence Couston and Achilles Grobler Defendants Corrected judgment: A corrigendum was issued on December 3, 2014; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: By Order of the Court on March 28, 2013, the earlier Court Order prohibiting publication of information that may identify the complainant has been discharged. _______________________________________________________ Memorandum of Decision of J.B. Hanebury , Master in Chambers _______________________________________________________

[ 1 ] This is an application to amend a statement of claim alleging misfeasance in public office against a Crown prosecutor. The claim is by a victim of sexual abuse. It is unusual as it relies on the breach of the accused’s Charter rights as the wrongful act necessary to ground the victim’s claim against the Crown prosecutor. This application is the third in a series of applications relating to the pleadings. Procedural History [ 2 ] Ms. Polsom says that between the ages of 9 and 17 she was molested by her stepfather, who was eventually criminally charged.

The charges against him were stayed as a result of the delay in bringing the matter to trial. [ 3 ] Ms. Polsom subsequently sued her stepfather and the Crown prosecutor, Mr. Grobler. The stepfather, Mr. Couston, was noted in default. The claim against Mr. Grobler alleged misfeasance in public office based on the breach of the accused’s Charter rights to disclosure and a trial within a reasonable time. The claim also sought damages for a violation of the requirements found in the Victims of Crime Act , R.S.A. 2000, c.

V-3 . [ 4 ] The Attorney General did not file a defence but brought an application to strike the claim against the Crown prosecutor on the basis that it disclosed no cause of action . [ 5 ] In Polsom v. Couston , 2014 ABQB 43 , (the “initial Polsom decision”), I struck those portions of the claim relating to the Victims of Crime Act and gave leave to apply to amend to better particularize the claim of misfeasance in public office. I noted in my conclusion that: The case law has established a very high bar for those seeking damages for misfeasance in public office.

The pleadings must provide the facts that the plaintiff is relying on to claim that the public officer deliberately and knowingly acted illegally and with either an intention or a reckless disregard of the harm to the plaintiff. Bald allegations are insufficient. There must be, as noted in O. (J.) v. Alberta , supra , some “meat on the bones”: a factual context that gives the claim some validity. [ 6 ] Ms. Polsom applied to amend her claim. The Crown then brought an application in morning chambers to determine whether evidence was required in support of that application.

I determined that evidence was not required as: the pleadings had not closed; it appeared the limitation had not expired; the amendments did not allege a new cause of action; and, the amendments did not add a new party: Polsom v. Couston , Action no. 1301-06134, [unreported], April 22, 2014. [ 7 ] This application is to consider the proposed amendments and determine if they should be allowed. It is useful to first reiterate the law in relation to a claim for misfeasance in public office as this sets the stage for the arguments that follow.

I note that since the initial Polsom decision a judgment with some useful commentary was released by the Supreme Court of Canada, R. v. Anderson , 2014 SCC 41 . [ 8 ] As summarized in the initial Polsom decision, the underlying purpose of the tort of misfeasance in public office is to protect the citizens’ reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of his or her public functions.

At the same time, the Courts have recognized the potential for the abusive use of this tort and the need to keep its ambit limited. [ 9 ] The tort of misfeasance in public office has been divided into two categories: Category A and Category B. The parties acknowledge that the type of misfeasance in issue in this case falls within Category B. [ 10 ] Category B has two elements: deliberate unlawful conduct by a public officer in the exercise of public functions; and, an awareness that the conduct is unlawful and likely to injure the plaintiff, or a reckless disregard for its effect. It is an intentional tort.

The deliberate unlawful conduct can include a failure to act, i.e. an omission. [ 11 ] First, the misconduct must be deliberate in the sense that it consists of an illegal act which the public officer knows is unlawful or, in other words, inconsistent with the obligations of the office. It is not meant to catch negligence or inadvertence by a public officer or situations where, through circumstances outside his or her control, the officer fails to adequately carry out the obligations of his or her office.

There must be a wilful choice to do something illegal, such that there is an element of bad faith or dishonesty. Acts that are so obviously inconsistent with the authority to be exercised can be circumstantial evidence of a lack of good faith. [ 12 ] Second, there must be more than a blatant disregard for the public officer’s duty, there must be an awareness that the unlawful conduct would harm the plaintiff, or a conscious disregard for the interests of those who will be affected by the misconduct.

This requirement may be satisfied by a reckless indifference or wilful blindness to the possibility of harm resulting from the misconduct. [ 13 ] Recently, in R. v. Anderson , the Court commented on prosecutorial discretion and the abuse of that discretion. [ 14 ] Prosecutorial discretion is an expansive term and it encompasses Crown decisions regarding the nature and the extent of the prosecution and the degree of the Crown’s participation.

However, matters of prosecutorial discretion must be distinguished from the Crown’s constitutional obligations, such as a prosecutor’s duty to disclose relevant evidence to the accused, for the Crown has no discretion to breach an accused’s Charter rights. Such a breach is outside prosecutorial discretion: para’s 44, 45.

[ 15 ] Prosecutorial discretion should not be routinely second-guessed by the Courts. Only in cases of “flagrant impropriety” should the Courts become involved and the onus for establishing the abuse of process is on the claimant. A bare allegation of abuse is insufficient. The claimant must establish a proper evidentiary foundation before the Court will embark upon the inquiry requested.

This “accords with this Court’s statement...that ‘prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives’”: para’s 49 – 52, 53, 55, emphasis in original. [ 16 ] This commentary is in line with earlier case law that has held that the courts should not lightly interfere with prosecutorial discretion. [ 17 ] As summarized in the initial Polsom decision, to satisfy the requirements of this tort, Ms.

Polsom’s claim of misfeasance in public office must allege: 1. an unlawful act by a public officer; 2. that the public officer knew the act was unlawful; 3. that the public officer did the act deliberately; and, 4. that the public officer did it with an awareness that it would harm Ms. Polsom or was reckless or wilfully blind to that harm. [ 18 ] The initial Polsom decision found that a breach of the prosecutor’s legal duty occurred when he allegedly failed to promptly disclose the Crown’s evidence to the defence and failed to bring the accused to trial in a timely fashion.

It noted that this breach of a duty under the Charter usually supports proceedings taken by the accused person, and a claim by a victim on this basis is novel. However, in line with the case law, I declined to strike the claim on that basis and held that this breach of a constitutional right could meet the first requirement for a claim of misfeasance in public office, an unlawful act. [1] [ 19 ] However, I struck the claim on the basis that it lacked sufficient facts, or “meat on the bones”, in relation to the other constituent elements necessary for a claim of misfeasance in public office.

I found that the story supporting the allegations was not coherent. Noting that claims for misfeasance in public office are notoriously difficult to prove, and the plaintiff sought to advance a claim that was unprecedented, I granted the plaintiff leave to seek to amend her claim if she was of the view that she could meet the requirements for pleading this tort. [ 20 ] She now seeks to file an amended claim. Proposed Amended Statement of Claim [ 21 ] An overview of the proposed amended Statement of Claim is necessary. Mr. Polsom was charged on September 10, 2009.

On October 21, 2010, the preliminary hearing was scheduled for June 17, 2011. Ms. Polsom says that despite her requests to be interviewed by Mr. Grobler, no interview occurred until May, 2011, more than 18 months after Mr. Couston was charged. She says that Mr. Grobler then provided Ms. Polsom’s evidence to defence counsel and the preliminary inquiry was then adjourned for two weeks to June 23, 2011. [ 22 ] Defence counsel sought a further adjournment of the preliminary inquiry, which Mr. Grobler did not oppose.

The new date was six months later, December 16, 2011, and more than 27 months after the charges were laid. [ 23 ] After the preliminary inquiry Mr. Couston was ordered to stand trial on four of the five counts and was to be arraigned on February 10, 2012. That date was adjourned and the arraignment ultimately proceeded on March 9, 2012. The trial was set for 7 days ending November 14, 2012, some 38 months after the charges were laid. [ 24 ] On May 28, 2012, counsel for Mr. Couston filed an application seeking a stay of all charges alleging a breach of s. 11(

b) of the Charter of Rights and Freedoms . On October 3, 2012, after hearing a joint application by counsel for the stay, Nation J. stayed the charges under s. 24 of the Charter due to the delay. [ 25 ] In her claim Ms. Polsom says that Mr. Grobler knew he had a legal duty under the Charter to both provide Mr. Couston with prompt disclosure of the Crown’s evidence and to bring Mr. Couston to trial in a reasonable time. She alleges that Mr. Grobler knew that if Mr.

Couston was not brought to trial within 14 to 18 months of the date on which the charges were laid, the charges would be stayed. [ 26 ] She says that despite her and her family’s requests that he interview her, he did not do so until more than 18 months after the charges were laid and only a month before the preliminary inquiry was to be held. She alleges that he knew then that the preliminary inquiry would have to be adjourned as he had not yet obtained and provided her evidence to defence counsel. He also knew that the charges would be stayed.

Regardless, and knowing her fragile state, he made her recount her evidence both to him and again at the preliminary inquiry. She says that he should have stayed the proceedings immediately, as he knew they were doomed. [ 27 ] Although it is not pled in the alternative, [2] she also alleges that he failed to oppose the adjournment of the preliminary inquiry; failed to ask that the accused waive his right under s. 11(

b) of the Charter to be tried in a reasonable time; and, ultimately, failed to oppose the stay of the charges against Mr. Couston. [ 28 ] She says that he knew that a publication ban was in place to protect her identity and could be lifted at any time at her request. However, when she requested it be lifted, he told her that it was in place to protect the accused, could not be lifted, and as a result she could not discuss the case. When the stay application was heard, she says, he told her not to attend but to wait in his office. After it was granted he continued to advise her that the ban could not be lifted.

Once the stay of the charges was granted he told her that she was responsible for the delays. He was aware of her fragile emotional state and her vulnerability to re-victimization and re-traumatization and knew that these comments were damaging to her. These allegations are apparently included in the claim to demonstrate that Mr. Grobler attempted to conceal his unlawful acts. [3]

Issue [29] In

summary, the claim alleges misfeasance in public office based on two types of wrongful acts. The first is the breach of theaccused’s Charter rights. The second comprises four abuses of prosecutorial discretion: failing to stay the charges forthwith; failing tooppose defence counsel’s adjournment requests; failing to require a waiver of the accused’s s. 11(

b) Charter rights; and, failing tooppose the stay of proceedings. [30] The issue before this Court is whether the proposed amended claim provides enough “meat on the bones” that it can proceed.Does it set out a sufficient factual context to tie Ms. Polsom’s claim to the alleged illegal acts and to support the other constituentelements of this tort? Analysis [31] For the reasons below I conclude that there is an insufficient factual matrix pled to link Ms. Polsom’s claim to the breach ofthe accused’s Charter rights. There is no allegation that Mr.

Grobler was responsible for the initial 18 month delay, a delay which it isalleged breached Mr. Couston’s Charter right to a trial in a reasonable time and therefore was fatal to the prosecution. I have also cometo the conclusion that the facts alleged in the amended claim are insufficient to meet the requirements necessary to support the remainingclaim of misfeasance in public office based on the four alleged abuses of prosecutorial discretion. Is there a sufficient factual matrix pled to link Ms.

Polsom’s claim to the breaches of the accused’s Charter rights? [32] The initial Polsom decision held that while the breaches of the accused’s Charter rights could constitute the necessary illegalacts for the tort of misfeasance in public office, the necessary factual context was missing. The amended claim alleges that Ms. Polsomwas injured as a result of recounting her experiences both during her interview by Mr. Grobler and during the preliminary inquiry. Itstates that when Mr. Grobler interviewed Ms. Polsom, the charges were already 18 months old and were already hopeless due to thebreach of Mr.

Couston’s Charter rights. [33] That allegation is accepted for the purposes of this analysis. Ms. Polsom’s claim is against Mr. Grobler personally. To tie herclaim for the injuries she suffered at the interview to the breaches by Mr. Grobler of the accused’s Charter rights, it must allege that Mr.Grobler was responsible for the 18-month delay. It does not. The alleged fatal delay between the laying of the charges and the date forthe preliminary inquiry could have been for many reasons that had nothing whatsoever to do with Mr. Grobler. Therefore, the necessarylink between the claim for Ms.

Polsom’s injuries resulting from her interview and the alleged unlawful acts is missing. [34] Ms. Polsom raises a similar claim in relation to her evidence at the preliminary inquiry She says that this proceeding wasdelayed for six months as a result of Mr. Grobler’s alleged failure to provide prompt disclosure as required by the Charter. As Ms.Polsom alleges that the charges were already doomed for having not proceeded to trial in 18 months, this further delay would appear tobe of little if any significance. Furthermore, there is no allegation that Mr.

Grobler had custody or control of information that heneglected or chose not to release. The investigation of criminal charges is done by the police, not by the prosecutor. In short, the factsalleged are insufficient to tie Ms. Polsom’s claim to the breach of the accused’s Charter rights. [35] In

summary, the necessary factual link between the breach of the accused’s Charter rights and Ms. Polsom’s claims is notfound in the pleadings. This determination deals with the amendments made to support the claims based on the unlawful acts consideredin the initial Polsom decision. [36] The amended pleadings also allege four breaches of prosecutorial discretion as the unlawful acts necessary to support theclaim of misfeasance in public office. These breaches were not considered in the initial Polsom decision.

Are the pleadings sufficient to support a claim of deliberate abuse of prosecutorial discretion coupled with a reckless disregard for theharm to Ms. Polsom? [37] To reiterate, Mr. Grobler’s alleged abuses of prosecutorial discretion are: his failure to stay the charges before either meetingwith Ms. Polsom or before the preliminary; and, in the alternative, his failure to oppose the adjournment of the preliminary; his failure torequire the accused to waive his s. 11(

b) Charter rights as a condition of granting an adjournment; and his failure to oppose theapplication to stay the charges. Failure to Immediately Stay the Proceedings [38] Counsel for Mr. Grobler alleged argues that the proposition that Mr. Grobler knew that the proceedings were “doomed” at thetime of interviewing Ms. Polsom or at the time of the preliminary is inconsistent with a number of legal principles. [39] For example, late disclosure does not always result in a request for, or the granting of, an adjournment: R. v. Walker, 2013SKCA 95, para, 34-35.

Similarly, even when entitled to seek a stay of the charges, an accused may choose to have the matter heard onthe basis that he or she wishes to have his or her name cleared and the matter settled. At the time Ms. Polsom was interviewed anadjournment of the preliminary inquiry would not have been a given. [40] A stay as a result of unreasonable delay is granted upon an application by the accused, who has the obligation to prove thebreach of his Charter rights: R. v. Askov, (SCC), [1990] 2 SCR 1199, para. 17 ; R. v. Morin, (SCC),[1992] 1 S.C.R. 771, para’s 26, 27.

The court considers a guideline that 14 to 18 months to trial is not an unreasonable period, but it isjust a guideline: R. v. Morin, para’s 50, 52. In determining if a stay will be granted the court must balance a number of factors. This waswas pointed out in R. v. Caines, 2011 ABQB 82, at para 577: [41] There is no empirical calculation undertaken to determine the tipping point at which the delay becomes unreasonable andcontrary to s. 11(

b) of the Charter. Rather, it is a judicial balancing act. The factors the court considers include: the length of the delay;the waiver of time periods; the reasons for the delay, including inherent time requirements of the case, actions of the accused, actions of

the Crown, limits on institutional resources, and other reasons for delay; and, prejudice to the accused: R. v. Morin, para. 26. It is not asimple either or choice. The court carefully examines the factors. In one case a stay was not granted despite a 33 month delay: R. v.Stevens, 2013 ABQB 342. [42] Finally, counsel for Mr. Grobler points out that a stay based on an application alleging a breach of a Charter right cannot begranted at the preliminary hearing stage by a Provincial Court judge. There is no jurisdiction: R. v.

Askov, para. 50. [43] I agree that the legal context does not support an allegation that Mr. Grobler deliberately abused prosecutorial discretion whenhe failed to stay the charges prior to interviewing Ms. Polsom or prior to the preliminary inquiry. His failure to stay the charges is not anact so clearly inconsistent with his authority as to be circumstantial evidence of a lack of good faith. Other Abuses of Prosecutorial Discretion [44] Next it is alleged that Mr.

Grobler deliberately abused his prosecutorial discretion when he failed to oppose the adjournmentof the preliminary; failed to require the accused to waive his s. 11(

b) Charter rights as a condition of granting an adjournment; and failedto oppose the application to stay the charges. The harm suffered by Ms. Polsom as a result of this abuse is the failure of the charges to goto trial. [45] The Supreme Court of Canada has noted that its role is generally to supervise the conduct of litigants before the court, not onelitigant’s decision-making process. Judicial supervision of the decision-making process of the Attorney General “could erode theintegrity of our system of prosecution”.

Deference is given to prosecutorial discretion, which includes the decisions as to whether aprosecution should be brought, continued or ceased. The courts are slow to second-guess the exercise of this discretion and will only doso in narrow circumstances, where there is a “flagrant impropriety”: Krieger v. Law Society (Alberta), 2002 SCC 65, para’s 31, 31, 47 –49. [46] The unlawful acts alleged all come within the rubric of prosecutorial discretion. Whether to contest an adjournment, or requesta waiver of s. 11(

b) Charter rights, or oppose a stay application, are all within the discretion of a prosecutor. Absent facts indicative of awilful abuse of that discretion in conjunction with a reckless disregard of the injury to Ms. Polsom, that discretion is immune from Courtinterference. [47] Counsel for Ms. Polsom points to her allegations that Mr.

Grobler failed to discharge the publication ban; did not have Ms.Polsom attend the stay application; and suggested she bore responsibility for the delay. [48] In my view those allegations are insufficient to support a claim that when determining if and how to grant an adjournment or astay, Mr. Grobler deliberately acted unlawfully, recklessly disregarding the harm to Ms. Polsom if the charges did not proceed. Withoutmore, those facts do not support the constituent elements of a claim of misfeasance in public office. [49] As noted by counsel for Ms. Polsom, the bar to amend pleadings is low.

However, as the Supreme Court of Canada said in R.v. Imperial Tobacco, 2011 SCC 26 , 2011 SCC, para. 26, “the question is whether, considered in the context of the law and thelitigation process, the claim has no reasonable chance of succeeding”. In my view, in the context of the relevant law, the proposedamended statement of claim has no such chance. Conclusion [50] Chief Justice McLachlin of the Supreme Court of Canada, in R v. Morin, (supra), para. 81, said that even early and primitivesocieties insisted that those accused of crimes be brought to justice.

When those charged with crimes do not come before the courts“victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging themost fundamental of its tasks”. She acknowledged that at the same time the Court must be cognizant of the right of an accused to be triedwithin a reasonable time. The balancing of those conflicting interests is the challenge that the courts face. [51] In this case, the criminal justice system failed Ms. Polsom. She did not see the charges she brought forward dealt with by theCourts. The fact that she has noted Mr.

Couston in default, which means that he is deemed to have admitted the allegations found in herclaim, is likely small comfort: Klinck v. Drinnan, (1985) (AB KB), 41 Alta. L.R. (2d) 299 (Q.B.), p. 306. [52] While the amended statement of claim does not provide the necessary link between the breach of Mr. Couston’s Charterrights and the injuries suffered by Ms. Polsom, or sufficient facts to support a wilful abuse by Mr. Grobler of his prosecutorial discretion,that does not necessarily mean that Mr. Grobler’s conduct toward Ms. Polsom is immune from sanction.

If her allegations that Mr.Grobler misled her are proven, his conduct may be subject to review by the Law Society of Alberta: R. v. Krieger (supra). [53] The application is dismissed and the claim is struck. If the parties wish to speak to costs, they may do so before December 19,2014. Heard on the 07th day of July, 2014. Dated at the City of Calgary, Alberta this 18th day of November, 2014.

J.B. Hanebury M.C.C.Q.B.A. Appearances: Lucas Rasmussen De Waal Law for the Plaintiff Kate Bridgett Alberta Justice – Civil Litigation for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of J.B. Hanebury, Master in Chambers _______________________________________________________ Style of Cause of the Defendant Archilles is changed to Achilles Paragraph 13 changed from Recently, in R v Anderson , the Court commented on prosecutorial discretion and when an abuse if that discretion constitutes the tort of misfeasance in public office.

Should be - Recently, in R. v. Anderson , the Court commented on prosecutorial discretion and the abuse of that discretion. Paragraph 21 second sentence changed from October 21, 2009 to October 21, 2010, and June 9, 2011 to be changed to June 17, 2011. Paragraph 23 “After the preliminary inquiry Mr. Grobler” is changed to Couston Paragraph 37 should read “To reiterate, Mr. Grobler’s alleged abuses .... Paragraph 40 the second sentence should read “The court considers a guideline that 14 to 18 months to trial is not an unreasonable period, but ...”

[1] In argument on this third application, counsel for Mr. Grobler again raised the question of whether a breach of an accused’s Charter rights could meet the requirement of an unlawful act, when the claim was by a third party. Counsel provided case law which could have been submitted at the initial application. I have not considered those arguments further as the proper place to canvass that law was at the initial application.

In any event, an appeal of a Master’s decision is a hearing de novo. [3] Although the pleadings appear to allege that these three matters, the continuance of the publication ban, the advice not to attend the stay application and the advice that Ms. Polsom was responsible for the delays, are wrongful acts sufficient to meet the first requirement of the tort of misfeasance in public office, it was suggested by counsel for Mr. Grobler that these allegations were related to the claim originally made under the Victims of Crime Act , which was struck. Ms.

Polsom’s counsel did not disagree, and I note that in his brief he used these allegations as support for the remaining elements of the tort: Mr. Grobler’s knowledge of the unlawfulness of his act; his deliberateness in undertaking it; and, his awareness of, or recklessness or wilful blindness to, the harm that would result. Therefore, these allegations will be referred to only for that purpose and it is assumed they are not meant to constitute the wrongful acts that underpin the alleged tort.