Berube v Her Majesty the Queen in the Right of Alberta, 2021 ABQB 890

Court of Queen’s Bench of Alberta Citation: Berube v Her Majesty the Queen in the Right of Alberta, 2021 ABQB 890 Date: 20211109 Dockets: 2103 13641, 2103 13643, 2103 14319 Registry: Edmonton Between: Docket: 2103 13641 Thomas James Berube Plaintiff - and - Her Majesty the Queen in the Right of Alberta & Alberta Government Justice Ministers Office, Provincial Court Judge John Peter Higgerty, Phil Lefeuvre Deputy Chief Prosecutor at Government of Alberta, & Crown Prosecutor Aaron Rankin at Government of Alberta Defendants And Between: Docket: 2103 13643 Thomas James Berube Plaintiff - and - Her Majesty the Queen in the Right of Alberta & Alberta Government, Alberta Justice & Solicitor General, & Edmonton Remand Center Director, Diane Beaton Defendants

Between: Docket: 2103 14319 Thomas James Berube Plaintiff - and - Her Majesty the Queen in the Right of Alberta & Alberta Government and the Alberta Justice Ministers Office, Provincial Court Judge John Peter Higgerty, Phil Lefeuvre Deputy Chief Prosecutor at Government of Alberta, Crown Prosecutor Aaron Rankin at Government of Alberta, RCMP Cpl Jody Mattinson, RCMP Cpl Brean Desaulniers, RCMP A/Cpl Carling Grasdal, RCMP Cpl Andrew Olfert, RCMP Cst Alex Ayers, RCMP Cst Chris Sleep, & RCMP CST Ryan Deroche Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G.

Nielsen _______________________________________________________ I. Introduction [ 1 ] On September 27, 2021, Thomas James Berube (Mr.

Berube) filed two Statements of Claim with the Court of Queen’s Bench of Alberta: • Docket 2103 13641 - Defendants named as Her Majesty the Queen in the Right of Alberta & Alberta Government Justice Ministers Office, Provincial Court Judge John Peter Higgerty, Phil Lefeuvre Deputy Chief Prosecutor at Government of Alberta, & Crown Prosecutor Aaron Rankin at Government of Alberta ( Berube Action #1 ); and • Docket 2103 13643 - Defendants named as Her Majesty the Queen in the Right of Alberta & Alberta Government, Alberta Justice & Solicitor General, & Edmonton Remand Center Director, Diane Beaton ( Berube Action #2 ). [ 2 ] Mr.

Berube subsequently filed a third Statement of Claim on October 14, 2021: • Docket 2103 14319 - Defendants named as Her Majesty the Queen in the Right of Alberta & Alberta Government and the Alberta Justice Ministers Office, Provincial Court Judge John Peter Higgerty, Phil Lefeuvre Deputy Chief Prosecutor at Government of Alberta, Crown Prosecutor Aaron Rankin at Government of Alberta, RCMP Cpl Jody Mattinson, RCMP Cpl Brean Desaulniers, RCMP A/Cpl Carling Grasdal, RCMP Cpl Andrew Olfert, RCMP Cst Alex Ayers, RCMP Cst Chris Sleep, & RCMP CST Ryan Deroche ( Berube Action #3 ). [ 3 ] Mr.

Berube appears to currently be detained in the Edmonton Remand Centre (ERC) awaiting trial. Some of Mr. Berube’s

three lawsuits involve both criminal proceedings before the Provincial Court of Alberta and his ERC detention. From Mr. Berube’s pleadings it appears he is charged with arson offences, including burning motor vehicles in a car dealership, and burning down a pet store in Whitecourt, Alberta. [ 4 ] The Clerk of the Court has referred the three Berube Action Statements of Claim as Apparently Vexatious Applications or Proceedings (AVAPs) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 5.

I have received and examined that referral since I am the judge assigned to review the AVAPs filed in Edmonton at the Court of Queen’s Bench of Alberta. CPN7 is reviewable on-line at https://www.albertacourts.ca/qb/areas-of-law/civil/practice-notes. [ 5 ] I will briefly review the content of Mr. Berube’s three Statements of Claim. Each are lengthy documents. I note the Statements of Claim are difficult to summarize because they have multiple aspects and include parts that are passages quoted or reproduced from various sources.

Those “external items” include what appear to be photographs or other materials obtained from disclosure or other documents in the criminal proceedings in which Mr. Berube is the accused. A. Berube Action #1 [ 6 ] Berube Action #1 chiefly alleges misconduct by Judge John Peter Higgerty (Judge Higgerty) and Crown Prosecutor Phil Lefeuvre (Mr. Lefeuvre). Judge Higgerty is identified as the bail and case management judge for criminal proceedings against Mr. Berube. Mr. Lefeuvre was the Crown Prosecutor. The central allegation of Berube Action #1 is that Judge Higgerty should not have heard steps in Mr.

Berube’s Provincial Court of Alberta proceedings because of factors such as conflicts of interest, unauthorized knowledge, and bias. Mr. Berube focusses on bail hearings in 2020. Judge Higgerty appears to have denied Mr. Berube bail. [ 7 ] Mr. Berube’s complaint against Mr. Lefeuvre is that Mr. Lefeuvre was aware that Judge Higgerty should not be hearing Mr. Berube’s criminal proceedings. Mr. Berube also alleges that Mr. Lefeuvre conspired with RCMP officers to engage in perjury during the bail proceedings. Mr. Berube alleges: ... these actions by Both Judge J.P.

Higgerty and Deputy Chief Crown Prosecutor Phil Lefeuvre were done deliberatly with willful intent to cause the Plaintiff both Physical harm and Emotional harm and pshychological harm. As well as denie the Plaintiffs guaranteed Charter rights (Sic.) [ 8 ] Mr. Berube also alleges these acts were oppressive, the product of “moral delinquency”, a breach of their duties, and “professional misconduct that is disgraceful or unbecoming”. Mr. Berube alleges that breached his rights pursuant to

section 11(

d) Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 ( Charter ) to “... a fair and public hearing by an independent and impartial tribunal.” [ 9 ] The Berube Action #1 Statement of Claim lists many items that Mr. Berube alleges establish conflict of interest. For example, Mr. Berube reproduces what appears to be information located on the Internet that Mr. Berube says establishes that Judge Higgerty and Alberta Crown Prosecutor Photini Papadatou both graduated from McGill University in 1980. Mr.

Berube then writes: Judge Higgerty and Photini Papadatou went to Mcgill University together guess who Judge Higgerty dated in law school ? guess who Judge Higgerty had for a classmate? (Sic, emphasis in original.) There is no indication in the Berube Action #1 Statement of Claim that Ms. Papadatou is involved in Mr. Berube’s litigation. She is not named as a Defendant in Mr. Berube’s lawsuits. [ 10 ] The following is a further example of the bases upon which Mr. Berube alleges wrongdoing and inappropriate collaboration between Judge Higgerty and Mr.

Lefeuvre: further coincidence is how John Peter Higgerty moves from eastern canada to Hinton Alberta and then becomes a Hinton Crown Prosecutor . Further coincidence is how Phil Lefeuvre moves from eastern canada to of all places Hinton Alberta and then becomes a Hinton Crown Prosecutor. what are the vegas ODDs coincidences only exist in fairy tails as Judge J.P. Higgerty helped by pulling strings to get his Cousin Phil Lefeuvre a job in Hinton Alberta sounds way more plausible. (Sic, emphasis in original.) Mr. Berube does not appear to indicate any basis to conclude that Judge Higgerty and Mr.

Lefeuvre are related. [ 11 ] Mr. Berube then expands his allegations that Judge Higgerty and Mr. Lefeuvre have engaged in illegal actions that were “a match made in heaven”.

Numerous allegedly unfair court proceedings resulted from that collaboration, and allegedly led to many named persons being convicted of murder, and one, Michel Bouvier, being “ convicted of bad shit ” (emphasis in original). [ 12 ] The Berube Action #1 Statement of Claim makes no mention of Defendant Aaron Rankin, other than in the style of cause. [ 13 ] The Statement of Claim seeks a “written apology from all parties involved”, $400,000 in “Punitive damages, or exemplary damages”, and $100,000 for “Aggravated damages”.

B. Berube Action #2 [ 14 ] The Berube Action #2 Statement of Claim names Alberta, the Alberta Minister of Justice and Solicitor General (the Minister) and the Director of the ERC, Diane Beaton (Ms. Beaton) as Defendants. Some of the allegations identified are specific to Mr. Berube, but others are “global” complaints; allegations more typical of what one might encounter in a class action lawsuit. Mr. Berube divides his claims into five broad themes. [ 15 ] “Plaintiff’s Pretrial Treatment” alleges that Mr. Berube experienced serious vision-related issues while detained at the ERC. Mr.

Berube reports these escalated after he was stabbed in the cheek with a pencil and struck on the head by other detainees who attacked Mr. Berube because Mr. Berube had burned a pet store and killed pets. This resulted in Mr. Berube undergoing eye surgery in his left eye and that his other eye was “... covered with a eye patch to promote healing.” (sic). Mr. Berube says that meant he was legally blind, but alleges that ERC staff ignored his disability and did not provide him adequate medical and household care. Mr.

Berube reports he recently had further surgery “... to regain vision ...”. [ 16 ] The Berube Action #2 Statement of Claim also states Mr. Berube was the target of abuse. Other unnamed detainees allegedly put feces into a peanut butter sandwich. Mr. Berube says ERC detainees on several occasions threw toilet paper rolls at Mr. Berube and giggled. Mr. Berube says Ms. Beaton deleted video to cover that up. Another allegation is that two detainees, Richard Rockey and Jordan Keenan “... helicoptered their exposed penises in front of the Plaintiff to see if he was faking being blind ...” while ERC officers laughed.

Other incidents that involved these two detainees are reported, such as they licked Mr. Berube on the back of the neck, and Mr. Berube’s nipples and penis were grabbed. These events were all, allegedly, observed by ERC staff and video recorded. Mr. Berube claims that his Charter ss 7 and 12 rights were breached by his experiences in the ERC. [ 17 ] The second major subject identified in the Berube Action #2 Statement of Claim is an allegation that ERC detainees who belong to the “Bootcamp” program receive privileges and different and superior treatment than other ERC detainees. Mr.

Berube alleges that is discrimination that is prohibited by Charter s 15. Mr. Berube lists many examples of “discrimination” that range from better access to haircuts, music, and Xbox gaming systems. Mr. Berube alleges the Bootcamp detainees are even provided with movies that have not yet undergone theatrical release. The only point at which Mr. Berube identifies that he is personally disadvantaged (apparently he is not a Bootcamp detainee) is Mr.

Berube complains about his access to haircuts. [ 18 ] The Berube Action #2 Statement of Claim makes a global complaint that while ERC cells are equipped to support a television and cable TV services, none were installed. Instead, Mr. Berube indicates inmates are provided with “portable wifi tablets”, that are more expensive. Mr. Berube says the public taxpayers have been deceived by government officials about this wifi tablet policy, which is “stupid on their part”. Mr.

Berube complains that Alberta’s policy is wrong, and denies detainees positive experiences such as watching cooking shows, and other television programming that provides “positive messages and silver linings”. Mr. Berube makes no television- related complaint that involves himself, personally. [ 19 ] The fourth issue raised in the is Berube Action #2 Statement of Claim that Mr. Berube claims that goods sold to detainees and inmates at ERC and Alberta provincial jail “canteens” are overpriced. Mr.

Berube provides many examples of what he says are inappropriate high prices for canteen goods, comparing those to Walmart and Costco prices. He calls this “price gouging”. Mr. Berube also argues that there are healthier alternatives to food sold at canteens, and that ethnic and cultural groups, such as Muslims and “the French”, should have their particular “styles of food” reflected in what canteens sell. Again, Mr.

Berube provides no examples of how he has been harmed by “price gouging”. [ 20 ] The final major complaint category in Berube Action #2 Statement of Claim is that meals that are provided to detainees are potentially contacted by and/or accessible to other inmates. Mr. Berube describes how when meals are distributed, sometimes inmates transfer food from plastic meal trays to Styrofoam containers. He alleges this led to “serious problems”, including the spread of COVID- 19 among detainees. Mr.

Berube alleges detainees also tampered with meals, for example one detainee allegedly wrote messages on bananas supplied to female detainees, such as “I heart you”. The Berube Action #2 Statement of Claim does not identify mishandling or tampering with Mr. Berube’s food, except for the peanut butter sandwich incident. [ 21 ] Mr. Berube concludes that his rights pursuant to ss 7, 9, 10, 12 and 15 of the Charter have been breached. He reviews the conditions, facilities, and programs available to ERC detainees, but alleges that his particular needs as “... being Blind in jail ...” were not accommodated.

On this basis Mr. Berube claims $4 million in “Punitive damages, or exemplary damages”, and $1 million in “Aggravated damages”. C. Berube Action #3 [ 22 ] The Berube Action #3 Statement of Claim names Alberta, the Minister, Judge Higgerty, Mr. Lefeuvre, Mr. Rankin, and seven RCMP officers as Defendants. The subject matter of Berube Action #3 in some ways overlaps with Berube Action #1 since the allegations in this Statement of Claim appear to be globally related to events and Court processes surrounding Mr. Berube’s arson criminal proceeding. That said, Mr. Berube makes a number of discrete claims: 1) After Mr.

Berube was arrested on February 27, 2020, RCMP officer Corporal Mattinson slammed a car door on Mr. Berube’s left leg, “pinching it”, and then he and other RCMP officers denied Mr. Berube treatment of that injury for many hours. Mr. Berube reports he was taken to the Edson hospital the next day and received pain medication for a swollen knee. Mr. Berube calls this a criminal offense, and says that the RCMP took steps to cover that up. Mr. Berube says these events breached his rights pursuant to s 7 of the Charter , specifically “freedom from suffering”. 2) Mr.

Berube complains that RCMP Corporal Mattinson “threatened and intimidated” a 17-year-old individual who is Mr. Berube’s co-accused. No further details are provided of this alleged wrongdoing. 3) After being arrested for arson, Mr. Berube reports issues and irregularities with Mr. Berube’s exercise of his right to contact and

obtain legal advice, that allegedly breached his rights pursuant to s 10(

b) of the Charter . Mr. Berube highlights what he calls an “inadvertent recording” of a conversation between himself and lawyer Kent Teskey. 4) Mr. Berube alleges that in the fall of 2019 he was “sexually assaulted ... behind the Edson Provincial Court House” by Judge Higgerty and Mr. Lefeuvre. Mr. Berube continues to state that Judge Higgerty ignored “a ruling” of Chief Judge Redman and “... presided on numerous Provincial Court Hinton dates ... further victimizing the Plaintiff. ...

Judge Higgerty openly refused to the conflict of interest with a big Smile on his Face as he was further victimizing the Plaintiff.” (sic). 5) A person named Monte Travis Moeller was murdered by a conspiracy by Judge Higgerty, Mr. Lefeuvre, Corporal Mattinson and other RCMP officers, Whitecourt Fire Chief Brian Wynn, and “Crown Prosecutor Phontini “Dragonlady” Papadatou”. No explanation is provided of the basis for this murder allegation, except that the alleged victim was falsely reported as rescued by the Whitecourt fire department while the pet store that Mr. Berube allegedly set on fire burned down. Mr.

Berube says that the rescue never occurred, and, instead, at that time Mr. Moeller was “visiting family for Christmas”. 6) The Provincial Court of Alberta appears to have issued one or more Orders that instruct the ERC to facilitate Mr. Berube conducting his own criminal defence by giving him access to a computer and printer. Mr. Berube complains that Order or Orders have not been complied with, which breaches his rights pursuant to ss 7, 9, and 12 of the Charter , and his right to self-represent as a criminal accused, and to “... have the best possible defense ...”. Mr.

Berube says ERC officers do not obey those instructions, “... cause the judge doesn’t work here and until she does they wont follow shit she says and this is their jail not hers ...” (sic). Mr. Berube says those officers are “super lazy” and “[b]ecause driving a garbage truck is too smart for them.” Mr. Berube says the current Crown Prosecutor, Mr. Rankin, is equally guilty in this sense. [ 23 ] The Berube Action #3 Statement of Claim seeks a “written apology from all parties involved” and $800,000 in “Punitive damages, or exemplary damages”, and $200,000 in “Aggravated damages”. [ 24 ] I have reviewed Mr.

Berube’s Statements of Claim and conclude that these filings are AVAPs because the Statements of Claim have elements that Courts identify as characteristics of hopeless and abusive proceedings. On that basis, I conclude Mr. Berube’s Statements of Claim should be subject to a CPN7 show-cause document-based review under r 3.68 of the Alberta Rules of Court , AR 124/2010 . That means I have decided that Mr. Berube must file a Written Submission setting out why his Statements of Claim should not be struck out because they are significantly deficient. II.

CPN7 [ 25 ] The Court implemented CPN7 to better manage litigation that, on its face, appears to be unmeritorious, has no chance of success, or is otherwise abusive and vexatious.

CPN7 is intended to provide litigants with a timely, proportionate, and cost-effective response: Unrau v National Dental Examining Board , 2018 ABQB 874 ( Unrau #1 ). [ 26 ] If, on initial review by the Court, an AVAP appears to have no merit, have no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue or issues that may be a basis to strike out the AVAP under r 3.68 of the Alberta Rules of Court . [ 27 ] The party who filed the AVAP is then given an opportunity to, within 14 days, provide to the Court a Written Submission of up to a total of 10 pages in length that responds to, and demonstrates why, the AVAP is a legitimate action and should be permitted to continue.

The Written Submission must be clearly addressed “To the Attention of” the Justice who initiates the CPN7 process, and must also be served on the other parties to the litigation. [ 28 ] CPN7 is not to be used for “close calls”. The Court only intervenes when the defect(

s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 at paras 22 and 24 . [ 29 ] The Court only considers restricted forms of evidence when it conducts a CPN7 review because this process has a very narrow focus and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 ( Ubah #2 ). There are exceptions to that rule.

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35 ), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45 ). III. Analysis [ 30 ] Mr. Berube’s three Statements of Claim exhibit a number of apparent issues, some of which are found in more than one Statement of Claim A.

Collateral Attacks and Premature Litigation [ 31 ] The wrongdoing alleged in Berube Action #1 and Berube Action #3 in certain instances are complaints about the conduct of criminal proceedings before the Provincial Court of Alberta. As far as I can determine from review of Mr.

Berube’s pleadings, those proceedings are still underway. [ 32 ] The law is clear that to pursue judicial proceedings without first exhausting alternative regimes is an abuse of process: Al- Ghamdi v Alberta , 2017 ABQB 684 at paras 126-128 , aff’d 2020 ABCA 81 , leave to appeal to SCC refused, 39389 (25 February 2021). [ 33 ] In Berube Action #1 and Berube Action #3 , Mr. Berube makes allegations in the Court of Queen’s Bench of Alberta that his

Charter rights were breached. However, those breaches allegedly occurred in the Provincial Court of Alberta proceedings. For example,Mr. Berube says his bail proceedings were conducted by a biased decision-maker, and that Counsel for the Crown acted in aninappropriate manner. Mr. Berube seeks money as damages, however, Criminal Code, RSC 1985, c C-46 ss 520-522, 525, 680 providemechanisms where a person who is denied bail may seek review and/or appeal of those decisions. Mr.

Berube, therefore, has analternative basis to seek bail and release from him being detained at the ERC pre-trial. [34] If correct, that means Mr. Berube’s choosing to seek $1.5 million in damages due to his detention is premature, and an abuseof the Court. He could advance his allegations via other means provided for by Parliament and legislation. [35] Similarly, in Berube Action #3, Mr. Berube demands damages because he says employees of the ERC are in contempt ofCourt by not following one or more Orders of the Provincial Court of Alberta. If so, then Mr.

Berube may apply to have the ProvincialCourt of Alberta enforce its Order or Orders. That is the alternative process provided in law when Court Orders are not followed, ratherthan a claim for damages. Mr. Berube is directed to explain why his contempt complaint is not premature and abusive. [36] Many of Mr. Berube’s complaints in the Berube Action #2 are not allegations that he has been personally harmed.

Forexample, his allegations about preferred treatment for Bootcamp detainees, ERC television access policies, and canteen prices areaccurately described as policy complaints, rather than a personal Charter claim or tort injuries. In Trang v Alberta (Edmonton RemandCentre), 2007 ABCA 263, Slatter JA ruled that Charter-based remedies are not appropriate for prisoner-related claims that could insteadbe addressed by alternative remedies such as judicial review. [37] I therefore direct that Mr.

Berube indicate how his litigation is not premature and an abuse of process, including: 1) the Berube Action #1 and Berube Action #3 allegations concerning bail proceedings and Mr.

Berube therefore being detained inthe ERC; 2) the contempt complaint from Berube Action #3; and 3) the ERC-policy related complaints from Berube Action #2. [38] A collateral attack is a litigation step or proceeding that challenges, directly or indirectly, a prior Court decision or result.Collateral attacks are generally prohibited and an abuse of process: British Columbia (Workers’ Compensation Board) v Figliola, 2011SCC 52 at para 28. Collateral attacks subvert “the orderly and functional administration of justice”: Dagenais v Canadian BroadcastingCorp, (SCC), [1994] 3 SCR 835 at 871, 120 DLR (4th) 12.

Any action or application that is identified as a collateralattack should be terminated, immediately: Alberta v Pocklington Foods Inc, 1995 ABCA 111 at para 14. [39] Examples of prohibited collateral attacks include: 1) bringing proceedings to determine an issue that has already been determined by a Court of competent jurisdiction; 2) using previously raised grounds and issues improperly in a subsequent proceeding; 3) conducting a proceeding to circumvent the effect of a Court Order; and 4) conducting multiple proceedings with the same litigation objective. (Unrau v National Dental Examining Board, 2019 ABQB 283 at 619 (Unrau #2).) [40] Mr.

Berube is disputing that his detention at the ERC is lawful. That appears to challenge findings made in the ProvincialCourt of Alberta, and perhaps other forums. I direct that Mr. Berube explain why Berube Action #1 and Berube Action #3 are not aprohibited collateral attack on criminal proceedings against him. B. Inadequate Pleadings, Extraordinary Claims, and Irrelevant Facts [41] Aspects of Mr. Berube’s lawsuits appear to provide inadequate pleadings.

An Application of Statement of Claim sets theissues to which the opposing party must respond, and alerts that party of the case it must meet: Whiten v Pilot Insurance Co, 2002 SCC18 at para 87. Proper pleadings require more than simply bare assertions, or “bald allegations” of wrongdoing: GH v Alcock, 2013ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at paras 16-20.

Pleadings must provide a basisfor the Court and other litigants to make a meaningful response, and indicate to the responding parties the “... who, when, where, howand what gave rise to its liability.”: Mancuso v Canada (National Health and Welfare) at para 19. The Supreme Court of Canada, inMackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485, instructed that a factual foundation, or an allegedfactual foundation, is an absolute requirement for pleadings that seek potential relief pursuant to the Charter. [42] Mr.

Berube cannot file inadequate pleadings and then either supplement those claims, or expect the Defendants to “fill in theblanks”: Mancuso v Canada (National Health and Welfare) at para 20. A lack of specificity is not merely a technical defect, but goes tothe core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and Social Services) (2006), (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA).

Inadequate pleadings abuse the Court’s process because a respondentcannot defend against unclear and non-specific claims and the Court cannot control the proceedings, identify the proposed argument, ormake findings on the relevant facts: Unrau #2 at para 629. [43] Certain of Mr. Berube’s claims provide details about the alleged wrongdoing that Mr. Berube says is the basis for hislitigation. For example, Mr. Berube provides much information in the Berube Action #3 Statement of Claim concerning his leg beingpinched in a car door, and Mr.

Berube’s subsequent requests for medical attention. [44] However, other claims made by Mr. Berube are, at best, “bald allegations”. For example, all that the Berube Action #3

Statement of Claim says about threats to a co-accused is this one sentence: ... also at the time of the assault on The Plaintiff: Cpl Jody Mattinson threatened and intimidated the Plaintiff’s underage 17 year old unnamed co-accussed (Sic.) This allegation does not appear to satisfy the “who, when, where, how and what” of the alleged wrongdoing. Similarly, Berube Action #1 makes no allegations at all against Mr. Rankin. There is no apparent reason why Mr. Rankin should be liable to Mr. Berube for $500,000 as a Defendant. [ 45 ] Berube Action #2 alleges Mr.

Berube’s rights pursuant to s 10 of the Charter were infringed. S 10 of the Charter has three elements: s 10(a) - the right to know the reasons for arrest or detention; s 10(b) - the right to instruct and retain counsel; and s 10(c) - habeas corpus . None of these rights appear to be implicated by the allegations in the Berube Action #2 Statement of Claim, which appears to breach the threshold requirement set in Mackay v Manitoba . [ 46 ] Another issue that appears repeatedly in Mr. Berube’s Statements of Claim is that he does not appear to establish the basis on which he is due damages. While Mr.

Berube references the Charter in all of his Statements of Claim, he does not appear to either: 1) meet the Mackay v Manitoba criteria to identify the alleged Charter breaches, particularly as those relate to himself; and 2) does not explain why he is personally due very large sums on the basis of alleged Charter misconduct, which sometimes does not even relate to or involve Mr. Berube. [ 47 ] Viewing the facts of Mr. Berube’s allegations, what he is often alleging are not Charter issues, so much as tort claims.

For example, the Berube Action #3 complaint about a pinched leg and slow treatment is, factually, a tort claim, not a Charter breach that Mr. Berube has a right to be “[free] from suffering”. [ 48 ] A second related issue is that Mr. Berube makes what are not merely bald allegations, but extraordinary claims. In a Rule 3.68 procedure, pleaded facts are presumed to be true: R v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 17 . However, this presumption is not unlimited.

As Gill J observed in Arabi v Alberta , 2014 ABQB 295 at paras 74-78 , an action cannot rely on allegations that are absurd, highly implausible, or hyperbole. This is particularly true when no detail is offered on the nature of the underlying misconduct and its operation. Similarly, Manderscheid J in VWW v Wasylyshen , 2013 ABQB 327 at para 52 , leave refused 2014 ABCA 121 , observed “[a]n extraordinary claim requires extraordinary proof.” [ 49 ] Mr. Berube makes such extraordinary claims.

For example, in Berube Action #3 , he says he was sexually assaulted behind the Edson courthouse in the fall of 2019 by Judge Higgerty and Mr. Lefeuvre. Mr. Berube provides no explanation on how that happened, what exactly transpired, and the roles of the two accused wrongdoers. I consider that an “extraordinary claim” and that to make a claim of this kind Mr. Berube needs to provide, at a minimum, the “extraordinary facts or alleged facts” to support such an allegation. Instead, Mr. Berube provides no particulars at all, which makes the sexual assault allegations also bald allegations. [ 50 ] Similarly, Mr.

Berube in Berube Action #3 claims that a matrix of Court, police, and Crown actors apparently killed a person, Mr. Moeller, to cover-up (purportedly) false information about the circumstances of one of the arsons that Mr. Berube is alleged to have caused. The Moeller murder allegations provide no particulars, and therefore appear to be prohibited and abusive claims, but also the kinds of “absurd, highly implausible, or hyperbole” that require “extraordinary proof”. [ 51 ] A further issue is that in certain instances Mr.

Berube’s claims point to alleged facts, however those allegations are not logically linked to what Mr. Berube has alleged. For example, the Berube Action #1 Statement of Claim lists much information about Judge Higgerty and others that seems to have been obtained via Internet searches. Mr. Berube provides what purport to be particulars to support his claims of bias and other misconduct by Judge Higgerty, yet there are no tangible or logical links. For example, Mr. Berube appears to infer that Judge Higgerty dated Crown Prosecutor Photini Papadatou because both attended the McGill University.

No basis for that link is identified. Then Mr. Berube seems to claim that this relationship means Judge Higgerty should not have been involved in criminal proceedings against Mr. Berube, but Ms. Papadatou is not apparently involved in those proceedings in any way . In short, Mr. Berube appears to be relying on alleged facts that are unrelated to his legal claims. [ 52 ] I therefore direct that Mr.

Berube explain how his Statements of Claim are valid filings, and how the Statements of Claim: 1) provide a basis for the Court and Defendants to make a meaningful response; 2) do not make extraordinary claims that require extraordinary proof; and 3) do not particularize their claims based on alleged facts that are unrelated to those claims. C. “Busybody” Litigation [ 53 ] “Busybody” litigation is where a person engages in litigation purportedly to enforce rights of other third parties. Busybody litigation is a type of litigation for an improper purpose, and an abuse of the court: Unrau #2 at paras 646-649, 664 .

Mr. Berube appears to be attempting to engage in busybody litigation: 1) Berube Action #1 condemns unfair legal proceedings against third party criminal accused, who were then wrongfully convicted of offenses, including murder, and “bad shit”; 2) Berube Action #2 makes complaints that do not apparently relate to Mr. Berube personally, but instead to large communities, including Mr. Berube’s allegations of discrimination in favour of Bootcamp detainees, inflated canteen prices, and Alberta’s “stupid” television policy in the ERC; and

3) Berube Action #3’s allegations:

a) about police misconduct directed to Mr. Berube’s unnamed youth co-accused; and

b) that Mr. Moeller was murdered by the RCMP and other state parties. [54] I note that, in identifying this defect, Mr. Berube is seeking that he, personally, receive millions of dollars in damages, forharm and misconduct that relates to others. In that sense, Mr. Berube appears to not only be conducting litigation that relates to otherpersons, but to be taking damages that, according to his pleadings, should belong to someone else. [55] I direct that Mr. Berube explain why Berube Action #1, Berube Action #2 and Berube Action #3 are not prohibited andabusive busybody litigation. D.

Defendant Immunity [56] A number of Defendants appear to be immune in law to the claims Mr. Berube has advanced. First, Mr. Berube has sued ajudge alleging misconduct that involves exercise of the judge’s judicial capacity. Canadian law provides that judges have absoluteimmunity to legal proceedings that base claims on judicial decision-making: Jordan v Nation, 2013 ABCA 117, leave to appeal to SCCrefused, 35405 (19 September 2013), citing Morier v Rivard, (SCC), [1985] 2 SCR 716, 23 DLR (4th) 1; Feeney vAlberta, 2021 ABCA 71. [57] Second, Mr.

Berube has sued several Crown Prosecutors, and certain of his allegations relate to the Crown Prosecutors actingin their professional capacity conducting proceedings against Mr. Berube. Canadian courts have repeatedly ruled that lawyers have noduty of care to opposing parties: e.g. Templanza v Ford, 2018 ABQB 168 at paras 69-72, appeal abandoned 2019 ABCA 309,reinstatement denied 2019 ABCA 345, leave to appeal to SCC refused, 39034 (30 April 2020); Kumar v Korpan, 2020 SKQB 256 atparas 46-49; 9383859 Canada Ltd v Saeed, 2020 ONSC 4883.

Manderscheid J in Wong v Leung, 2011 ABQB 688 at paras 23-24concluded: There can be absolutely no legal duty of care owed by a Defendant's counsel to a Plaintiff. If such duty were to exist, it would strike atthe very heart of the adversarial system, which forms the very foundation of litigation under the common law. ... [58] This rule is the same for Crown Prosecutors in relation to accused persons: Henry v British Columbia (Attorney General),2015 SCC 24 at para 74; Hyra v Manitoba, 2015 MBCA 55 at para 33. [59] Some of Mr.

Berube’s allegations do, admittedly, seem to fall outside the scope of what might be described as judicial andprosecutorial activity: e.g. the sexual assault that reportedly occurred behind the Edson courthouse, and the alleged murder of Mr.Moeller. Other of Mr. Berube’s claims, however, do appear to relate directly to actions and steps in proceedings where Mr. Berube is acriminal accused. I, therefore, direct that Mr. Berube indicate why the case law I have identified that defines judicial and prosecutorialimmunity would not apply to Mr. Berube’s litigation. E.

Abusive Ungrounded Conspiratorial Allegations Against Judges, Lawyers,Law Enforcement, and Government Actors [60] I have previously reviewed how certain of Mr. Berube’s claims that are directed against government actors have little to noapparent basis, are extraordinary, or are grounded in irrelevant or unrelated alleged facts. These allegations by Mr. Berube occur in abroader context: judges, the Crown, RCMP officers, ERC personnel, and the ERC Director working together to harm and incriminateMr. Berube, all the while covering up their own harassment, abuse, and harm directed to Mr.

Berube. [61] Ungrounded allegations of this type are a long recognized indicum of abusive litigation that potentially warrants terminationof a lawsuit and other litigation and litigant management steps: Unrau #2 at paras 714-729, Chutskoff v Bonora, 2014 ABQB 389 atpara 92, aff’d 2014 ABCA 444. I direct that Mr. Berube explain why his Statements of Claim should not be struck out as abusivelitigation on this basis. F. Excessive and Impossible Remedies [62] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625. Mr.

Berube frames all of his damages claims as “punitive”, “exemplary”, or “aggravated” damages. However, to the degree that hisStatements of Claim identify a legal basis for Mr. Berube to receive something, Mr. Berube says Charter rights were what was breached.As I have previously observed, where Mr. Berube says he is somehow personally implicated in the Statements of Claim, his actions areprobably best described as torts. [63] For the purposes of evaluating damages, the tort versus Charter distinction is largely irrelevant.

The Supreme Court ofCanada in Vancouver (City) v Ward, 2010 SCC 27 at para 48 instructed the quantum for either alternative is evaluated on the same basis.Furthermore, the foundation for any such claim must be to restore an injured party, and not to punish wrongdoing. In Ratych v Bloomer, (SCC), [1990] 1 SCR 940, 69 DLR (4th) 25, Chief Justice McLachlin rejected “... a moralistic view of tort ...” based onpunishment of wrongdoing, but, instead, this kind of law functions to restore an injured party. [64] As discussed above, much of Mr.

Berube’s lawsuits appear to be prohibited as premature, a collateral attack, and/or busybodylitigation. That said, Mr. Berube does claim to have experienced physical harm. That would potentially warrant him receiving an awardof general damages for “pain and suffering”.

[65] The maximum amount of general damages that may be claimed for pain and suffering was set in Andrews v Grand & ToyAlberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at $100,000. After inflation, the Andrews v Grand & ToyAlberta Ltd general damages cap is now about $365,000. Mr. Berube’s various claims exceed that maximum. [66] The Andrews v Grand & Toy Alberta Ltd maximum amount was appropriate in instances of severe negative outcomes, forexample where a young adult was injured so as to be nearly completely disabled. Mr.

Berube does not allege severe physical injury.Instead, the Statements of Claim allege injuries like Mr. Berube’s leg being pinched in a car door, him having inferior haircuts, and“penis helicoptering”. The most serious allegations are of sexual assault. None of these, however, would seem to be a basis in law for anaward of over $365,000. Most would only warrant much smaller damages claims, if any at all. [67] I direct Mr. Berube to indicate why his damages claims are not excessive or impossible remedies. IV. Conclusion [68] Mr.

Berube’s three Statements of Claim appear to be suitable AVAP candidates for review pursuant to CPN7. The Courtdirects that Mr. Berube respond to six questions: 1) Why are the Statement of Claims not:

a) premature abusive proceedings; and/or

b) collateral attacks on criminal proceedings before the Provincial Court of Alberta? 2) How do the Statements of Claim:

a) provide a basis for the Court and Defendants to make a meaningful response;

b) not make extraordinary claims that require extraordinary proof; and

c) not particularize their claims based on alleged facts that are unrelated to those claims? 3) How are the Statements of Claim not prohibited and abusive busybody litigation? 4) Why does jurisprudence concerning judicial and prosecutorial independence not apply to the Statements of Claim? 5) Why should the Statements of Claim not be struck out as abusive litigation for advancing ungrounded conspiratorial allegationsagainst Court, Crown, and government actors? 6) How are the remedies sought in the Statements of Claim not excessive or impossible? [69] CPN7 now advances to its second step.

This step consists entirely of written submissions; there will be no Court appearancesor oral argument. The usual limit for written submissions in CPN7 steps is ten pages; however, given this Memorandum of Decisionresponds to three related Statements of Claim, that limit is expanded to 20 pages. The next steps are: 1) Mr. Berube has 14 days to prepare a Written Submission of no more than a total of 20 pages, to be filed and served, as describedin para 3(

b) of CPN7. The Written Submission must be clearly addressed “To the Attention of Associate Chief Justice K.G. Nielsen”. 2) If this Court receives no Written Submission by that deadline, the Court will make its final decision on whether the Statements ofClaim should be struck out in whole or in part under r 3.68 of the Alberta Rules of Court (see CPN7, para 3(c)). 3) If Mr. Berube provides and serves a Written Submission, then the Defendants each have seven days to provide a Written Reply ofup to 20 pages in length (see CPN7, para 3(d)).

The Written Replies must be clearly addressed “To the Attention of Associate ChiefJustice K.G. Nielsen”. 4) After the Court receives Mr. Berube’s Written Submission and the Defendants’ Written Replies, if any, the Court will make itsfinal decision on whether the Statements of Claim should be struck out in whole or in part, under r 3.68 of the Alberta Rules of Court (seeCPN7, para 3(e)). [70] Court of Queen’s Bench of Alberta Action Nos. 2103 13641, 2103 13643, and 2103 14319 are stayed until further notice. TheCourt will prepare and serve an Interim Order staying the Actions (see CPN7, para 7). Mr.

Berube’s approval of the Interim Order is notrequired, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court. Dated at the City of Edmonton, Alberta this 9th day of November, 2021.

K.G. Nielsen A.C.J.C.Q.B.A. Appearances: None