Freeman Daren W. McCormick Plaintiff And: attorney general of canada Defendant, 2018 NLSC 251

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : McCormick v. Canada (Attorney General) , 2018 NLSC 251 Date : December 11, 2018 Docket : 201701G2842 Between: Freeman Daren W. McCormick Plaintiff And: attorney general of canada Defendant Before: Chief Justice Raymond P. Whalen Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 23, 2018

Summary: The Defendant brings an application pursuant to Rule 14.24 to strike the Statement of Claim, without leave to amend, on the basis that it discloses no reasonable cause of action and constitutes an abuse of process. The Statement of Claim alleges that a number of justice system officials in Nova Scotia, including judges of the Superior and Provincial Courts, Crown Prosecutors, and town police forces, as well as Royal Canadian Mounted Police (“RCMP”) and Corrections Officers committed various wrongs against the Plaintiff when acting as agents of the Defendant.

While the Statement of Claim was disjointed the wrongs raised therein could be categorized as claims for negligent investigation, malicious prosecution, abuse of public office and police misconduct.

Held : The application was granted. The Court found that the Statement of Claim failed to set out facts which could establish the necessary elements of the claims for negligent investigation, malicious prosecution, abuse of public office, police misconduct, or any other cause of action. The Statement of Claim further constituted a collateral attack on the findings of the Supreme Court of Nova Scotia, and was an abuse of process. Appearances: Daren W. McCormick No Appearance Heidi Collicutt Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: R. v. McCormick , 2012 NSSC 150 ; Knight v.

Imperial Tobacco Canada Ltd. , 2011 SCC 42 ; Walsh v. TRA Co. , 2007 NLCA 50 ; Andrews v. Canada (Attorney General) , 2009 NLCA 70 ; Fiander v. Mills , 2015 NLCA 31 ; Montreal Trust Co. of Canada v. Hickman , 2001 NFCA 42 ; GRI Simulations Inc. v. Pro-Dive Oceaneering , 2004 NLCA 74 ; Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board , 2007 SCC 41 ; Kvello v. Miazga , 2009 SCC 51 ; Odhavji Estate v. Woodhouse , 2003 SCC 69 ; R v. McCormick , 2012 NSSC 288 STATUTES CONSIDERED: Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D; Criminal Code , R.S.C. 1985, c.

C-46; Corrections and Conditional Release Act , S.C. 1992, c. 20; Crown Liability and Proceedings Act , R.S.C. 1985, c. C-50 REASONS FOR JUDGMENT Whalen, C.J. : INTRODUCTION [ 1 ] This is an application pursuant to Rule 14.24 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D, to strike out the Statement of Claim in this action, without leave to amend, on the grounds that the pleading does not set out a reasonable cause of action and is an abuse of process. background [ 2 ] The Plaintiff, describing himself as “Freeman Daren W.

McCormick”, filed his Statement of Claim on April 28, 2017, against Her Majesty The Queen as Defendant (which style and cause was amended to read Defendant - Attorney General of Canada). [ 3 ] On April 12, 2012, the Plaintiff was found guilty, following trial by judge and jury in the Supreme Court of Nova Scotia, of the following criminal offences and was sentenced to over three years incarceration: 1) Threatening to kill police officers on March 31, 2011, contrary to

section 264.1(1((

a) of the Criminal Code , R.S.C. 1985, c. C-46; 2) Carrying a revolver for a purpose dangerous to the public peace on April 1, 2011, contrary to section 88(1) of the Criminal Code ;

3) Possessing a revolver when prohibited by order from possessing firearms, contrary to

section 117.01(1) of the Criminal Code ; 4) Possessing a loaded, restricted firearm when not licensed, contrary to section 95(1) (

a) of the Criminal Code ; and 5) Carrying a firearm in a careless manner, contrary to section 86(2) of the Criminal Code . ( R. v. McCormick , 2012 NSSC 150 at para. 1 ) [ 4 ] Throughout his Statement of Claim, the Plaintiff alleges that numerous individuals were acting as “Federal Crown employees and agents”. The Plaintiff includes judges of the provincial and superior courts in Nova Scotia, provincial crown prosecutors, and members of various town police forces in Nova Scotia within that group.

The Plaintiff claims that these individuals, the RCMP and Corrections Service Canada Officers, committed wrongs against him while acting as agents of the Defendant. The Plaintiff further pleads that following sentencing he was placed at the Springhill Institution, a federally-operated medium-security penitentiary, where he alleges, inter alia , that his security classification within the penitentiary system was improperly changed.

ISSUE [ 5 ] Does the Statement of Claim disclose a reasonable cause of action? law and analysis [ 6 ] This Application for an order striking out the Plaintiff’s Statement of Claim is made pursuant to Rule 14.24 of the Rules of the Supreme Court , which provide as follows: 14.24.

(1) The Court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that (

a) it discloses no reasonable cause of action or defence; (

b) it is false, scandalous, frivolous or vexatious; (

c) it may prejudice, embarrass or delay the fair trial of the proceeding; or (

d) it is otherwise an abuse of the process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly.

(2) Unless the Court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under rule 14.24(1)( a). [ 7 ] We start from the premise that a Statement of Claim must contain a concise statement of the material facts on which a plaintiff relies for his claim. In Knight v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 , Chief Justice McLachlin remarked that it is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim and at paragraph 19 she wrote: 19.

The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. … [ 8 ] In this jurisdiction, the test on an application to strike pursuant to Rule 14.24(1)(

a) is set out in Walsh v. TRA Co. , 2007 NLCA 50 and was relied on by the Newfoundland and Labrador Court of Appeal in Andrews v. Canada (Attorney General) , 2009 NLCA 70 . Pleadings will be struck if, on the basis of the facts as pleaded, it is plain and obvious that the claim cannot succeed, ( Walsh , at paras. 11-16 , and Andrews , at para. 60 ); and, there is no basis for curing any deficiency by allowing amendment ( Fiander v. Mills , 2015 NLCA 31 at para. 31 ; Montreal Trust Co. of Canada v. Hickman , 2001 NFCA 42 at para. 53 and GRI Simulations Inc. v.

Pro-Dive Oceaneering , 2004 NLCA 74 at para. 13 ) [ 9 ] The Statement of Claim is disjointed, and it is difficult to decipher the exact nature of the claims being alleged by the Plaintiff. Broadly construed, it could be said that the Statement of Claim raises the following causes of action: negligent investigation, malicious prosecution, abuse of public office and police misconduct. negligent investigation

[ 10 ] To disclose a cause of action for negligent investigation, the pleadings must contain material facts to show that the Defendant; (

i) owed a duty of care to the Plaintiff, (ii) breached the standard of care, and (iii) the negligent investigation caused compensable harm. ( Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board , 2007 SCC 41 ). While the Statement of Claim pleads that numerous police officers, including members of the RCMP were involved in the investigation of the Plaintiff, there are no facts to support the breach and causation elements of negligent investigation.

Nor has the Plaintiff particularized any compensable harm he has suffered such that damages would be warranted. [ 11 ] The Statement of Claim does make numerous allegations that servants of the Defendant committed various wrongs against the Plaintiff, including: • arbitrarily arresting the Plaintiff on April 1, 2011; • taking the Plaintiff to an illegal court; • withholding disclosure from the Plaintiff relating to his criminal proceedings; • tampering with evidence; and • taking the Plaintiff’s property at gunpoint. [ 12 ] However, these bare allegations of a breach are not enough to disclose a reasonable cause of action in negligence, the Claim must contain facts to support the breach allegation.

The Plaintiff has not pleaded any facts that those involved in his investigation acted outside of what would be expected of a police officer in the circumstances. malicious prosecution [ 13 ] The purpose of the tort of malicious prosecution is to allow for the recovery of damages in circumstances where the police, or the Crown, have acted outside the scope of their lawful authority. In Kvello v. Miazga , 2009 SCC 51 , the Supreme Court of Canada held that to establish the tort of malicious prosecution, a plaintiff must demonstrate that the proceedings:

a) were instituted or continued by the Defendant;

b) were terminated in favour of the Plaintiff;

c) were undertaken without reasonable and probable cause; and

d) were motivated by malice or a primary purpose other than carrying the law into effect. [ 14 ] The Statement of Claim fails to plead the requisite material facts to sustain this cause of action.

First, it is clear from the claim that the Plaintiff was convicted as a result of his criminal trial and served at least a portion of his sentence in the Springhill Institution, it could hardly be said that the criminal proceedings were concluded in the Plaintiff’s favour. [ 15 ] Additionally, the Plaintiff has failed to provide the requisite material facts supporting the absence of reasonable and probable cause to prosecute.

Given that the Plaintiff was convicted of various offences, thus was found guilty beyond a reasonable doubt, there was clearly reasonable and probable cause to prosecute. [ 16 ] Finally, the Plaintiff has not established that the Defendant was acting maliciously when he was prosecuted. In Kvello , the Supreme Court of Canada held that in order to prove malice, a plaintiff must plead material facts that the defendant prosecuted him or continued a prosecution for an improper purpose inconsistent with the office of the Attorney General or the process of the criminal justice system.

Requiring malice as an element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a case proceeds, absent reasonable and probable grounds by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence. [ 17 ] With respect to the element of malice, Rule 14.11(1)(

b) requires that where a party alleges any condition of the mind of any person, including malice, that party must provide particulars of the fact on which the party relies. In the Statement of Claim, the Plaintiff takes issue with his bail conditions and the timely receipt of disclosure. The Plaintiff does not plead that these acts occurred out of malice, nor that they involved servants of the Federal Crown. misfeasance in public office [ 18 ] The Statement of Claim asserts that the liability for the Defendant arises from “abuse of public office”.

Even assuming the facts pled are true, misfeasance in public office is not disclosed. [ 19 ] In Odhavji Estate v. Woodhouse , 2003 SCC 69 at para. 22 , the Supreme Court of Canada held that the tort of misfeasance in public office can arise in one of two ways, either:

a) Through conduct of a public officer that is specifically intended to injure a person; or

b) Through conduct of a public officer who acts with knowledge that he or she had no power to do the act complained of and with knowledge that the act is likely to injure the Plaintiff. [ 20 ] Misfeasance in public office excludes liability for the inadvertent or negligent discharge of the obligations of the impugned official’s office. Rather, establishment of the tort requires something more akin to malice. For the Plaintiff to be successful, he must adduce evidence that shows that the Defendant deliberately engaged in unlawful conduct in their capacity as Federal Crown servants ( Odhavji Estate , supra note 12 at para. 26 ).

[ 21 ] In addition to the perceived wrongs that occurred during the trial of the Plaintiff’s criminal proceedings, the Plaintiff alleges wrongdoings by employees of the Correctional Service of Canada with respect to his security classification while incarcerated and accessing his personal property. [ 22 ] While incarcerated in a federal institution, the Corrections and Conditional Release Act , S.C. 1992, c. 20 requires that an inmate shall be assigned a security classification of minimum, medium, or maximum, and provided with written reasons for assigning or changing his or her classification. [ 23 ] With respect to his claim concerning his security classification, the Plaintiff does not plead that the decision maker “overrode” his security classification with knowledge or intent of causing him harm.

The same is true of the difficulties the Plaintiff claims he experienced accessing his personal property – the Statement of Claim does not plead that his personal property was kept from him with an intent to cause him harm. As such, the pleadings with respect to claims for misfeasance in public office are deficient. conduct of the Rcmp [ 24 ] The bulk of the Plaintiff’s claim is that he disagrees with how his case was handled from when criminal charges were laid against him, throughout the trial process, up until his conviction.

His claim asserts that wrongs were committed by numerous individuals throughout this process including – the RCMP, and Crown prosecutors. In the course of his criminal trial, the Plaintiff sought an order staying the proceedings against him on the basis that his rights were violated in numerous ways by the police and the prosecution ( R. v. McCormick , 2012 NSSC 288 , at para. 2 ). [ 25 ] Specifically, the Plaintiff took issue with his arrest as well as disclosure. Mr.

Justice Moir of the Supreme Court of Nova Scotia, who presided over the Plaintiff’s jury trial, dismissed the Plaintiff’s request for a stay and made numerous findings about the conduct of the police officers and prosecution involved in this matter, including at paras. 10 and 46 ( R. v. McCormick ): 10. … I emphatically reject the proposition that there was any misconduct by the police or the prosecution. I will not order a stay. 46. I find that the arrest was not motivated by the private prosecutions or by any generalized animosity against the Phoenix Tears group or the Freeman-on-the-Land movement.

It was motivated by information the police possessed, including the threat by Mr. McCormick … [ 26 ] The Plaintiff’s Statement of Claim is, in part, a repeat of his allegations of misfeasance by the police and others in Nova Scotia. Justice Moir unequivocally rejected the proposition that there was any misconduct by the police or the prosecution. The repeat of these claims by the Plaintiff in this Court as the base for an action against the Defendant improperly amounts to a collateral attack on an Order of the Supreme Court of Nova Scotia.

To assert these same claims in the face of their rejection in the Supreme Court of Nova Scotia makes them vexatious. ( Fiander , at para. 37 ) and to allow them to proceed through litigation, although in a different forum, would be an abuse of process. Conclusion [ 27 ] It is plain and obvious that no cause of action is disclosed in the pleading. The claims of the Plaintiff are bald accusations not grounded in any fact. Furthermore the pleading cannot be reconstructed so as to cure the deficiencies.

There is simply no basis to conclude from reading the Statement of Claim that a “skeleton or even a ghost of a claim” ( Montreal Trust , at para. 53) exists, within the pleading that can be saved through amendment.

Allow me to summarize: 1) the Statement of Claim does not disclose a reasonable cause of action for negligent investigation; 2) the Statement of Claim does not disclose a reasonable cause of action for malicious prosecution; 3) the Statement of Claim does not disclose a reasonable cause of action for abuse of public office; 4) the Statement of Claim does not disclose any cause of action; and 5) the Statement of Claim is a collateral attack on the findings of the Supreme Court of Nova Scotia. jurisdiction [ 28 ] While the issue of jurisdiction was not argued, I express some doubt whether this Court has jurisdiction to entertain the claims raised in the Statement of Claim (section 21(1) of the Crown Liability and Proceedings Act , R.S.C. 1985, c.

C-50). Given the fact that the Federal Crown has authored the present application and not raised this jurisdictional issue and further because I have determined it is appropriate to strike the Statement of Claim for the reasons set forth above, it is not necessary for me to consider the question. order The Plaintiff’s Statement of Claim is struck, without leave to amend. COSTS [ 29 ] Costs are awarded to the Applicant on a party and party basis in accordance with Rule 55 of the Rules of the Supreme Court , Appendix Scale of Costs, Column 3.

_____________________________ Raymond P. Whalen Chief Justice