|
LUCAS V. DUECK
QB02001
Date of Judgment: January 2, 2002
Number of Pages: 14
2002 SKQB 1
Q.B.G. A.D. 2001
No. 2291 J.C.S.
IN THE QUEEN'S BENCH
JUDICIAL CENTRE OF SASKATOON
BETWEEN:
JOHN DAVID LUCAS
PLAINTIFF
- and -
BRIAN GEORGE DUECK, CAROL BUNKO-RUYS,
SHEILA GAGNE, GREGORY WALEN, BARRY H.
ROSSMANN, SONJA HANSEN, MATTHEW MIAZGA,
W. RODRICK DONLEVY, TERRY R. HINZ, WILFRID
K. TUCKER, RICHARD QUINNEY, DON MCKILLOP,
UNKNOWN SASKATOON CITY POLICE OFFICER,
BOARD OF POLICE COMMISSIONERS OF THE CITY
OF SASKATOON, MINISTER OF JUSTICE OF
SASKATCHEWAN, MINISTER OF SOCIAL SERVICES
OF SASKATCHEWAN
DEFENDANTS
John Lucas on his own behalf
Darryl Brown for Carol Bunko-Ruys, Sheila Gagne, Sonja Hansen,
Matthew Miazga, Terry Hinz, Wilfrid Tucker, Don
McKillop, Richard Quinney and the Ministers of
Justice and Social Services
Thomas Schonhoffer for Gregory Walen, W. Rodrick Donlevy and
Barry H. Rossmann
David Gerrand for Brian Dueck, Barry H. Rossmann, Unknown
City Police Officer and the Saskatoon Board
of Police Commissioners
JUDGMENT SMITH J.
January 2, 2002
[1] The plaintiff has commenced an action against a
number of persons and institutions alleging that they
conspired in a malicious prosecution resulting in his wrongful
conviction, in 1993, for criminal libel under section 300 of
the Criminal Code. This conviction was upheld by the
Saskatchewan Court of Appeal and ultimately, in 1998, by the
Supreme Court of Canada. The defendants include a social
worker and a Saskatoon City Policeman who, in the early to mid
1990's, were involved in the investigation of allegations of
sexual abuse by their foster parents and members of the
extended families of the foster parents of three children in
foster care in Saskatchewan. Other defendants are the alleged
supervisors of the social worker and the City policeman, a
number of Crown prosecutors or former Crown prosecutors, the
then Director of Public Prosecutions, the Minister of Justice
and the Minister of Social Services, a lawyer in private
practice who was engaged to prosecute the charge of criminal
libel against the plaintiff, and three other lawyers in public
or private practice who have represented others of the named
defendants in related proceedings.
[2] The plaintiff alleges that his conviction for
criminal libel was as a result of "a conspiracy between 1993
and 1998 to perpetrate a fraud on the Provincial Court of
Saskatchewan, the Court of Queen's Bench for Saskatchewan and
the Supreme Court of Canada by knowingly committing perjury,
suborning evidence, interfering with witnesses, deliberately
failing to make a full and complete disclosure and/or failing
in their duty to report any of the foregoing." (Statement of
Claim, paragraph 4)
[3] The defendants are separately represented, in three
groups: employees of the Government of Saskatchewan including
the social workers, Crown prosecutors and Ministers of Justice
and Social Services in one group; individual Saskatoon City
Policemen and the Board of Police Commissioners of the City of
Saskatoon in a second group; and lawyers Greg Walen and Rod
Donlevy in a third group. Both Mr. Gerrand (lawyer
representing group #2) and Mr. Schonhoffer (representing the
third group) believed themselves to be representing Mr.
Rossmann, who is a solicitor employed by the City of
Saskatoon. Each group of defendants has brought an
application pursuant to Rule 173(a), (c) and (e) to strike the
statement of claim on the grounds that it discloses no cause
of action and that it is frivolous, vexatious and an abuse of
the Court's process.
[4] The background for the plaintiff's action is
summarized in the judgment of Cory J. in the decision of the
Supreme Court of Canada upholding the plaintiff's conviction
for criminal libel (R. v. Lucas, [1998] 1 S.C.R. 439). It is
useful to reproduce that summary here.
A police officer investigated
allegations of sexual abuse made by three
children, [M. 1] R. and his twin sisters
[M. 2] R. and [K.] R. The children
alleged that they had been sexually abused
by their birth parents, their foster
parents (Mr. and Mrs. K.), and several
members of their foster parents' family.
The children initially disclosed the abuse
to their therapist, Mrs. Bunko-Ruys, and
to Mr. and Mrs. T., who ran a special care
foster home where the children had been
placed after they were moved out of the
home of Mr. and Mrs. K.
As a result of the investigation,
criminal charges were laid against 16
people including the children's natural
parents, their foster parents (Mr. and
Mrs. K.) and members of the K.s' extended
family. With the exception of Peter K.,
the father of the complainants' foster
father, who pled guilty to charges of
sexual assault, all of the charges against
the K. family were either withdrawn or
stayed. The children's natural parents
were convicted but on appeal a new trial
was ordered. See R. v. R. (D.), [1996] 2
S.C.R. 291.
During the course of his
investigation, the police officer was
informed by Mr. and Mrs. T. that the
children had been openly displaying
inappropriate sexual behaviour. He was
told that they were sexually active with
each other and that the family dog had
been subjected to sexual acts. Moreover,
the police officer had been informed that
[M. 1] had sexually assaulted his sisters
on numerous occasions and that Mr. and
Mrs. T., despite their efforts, were
unable to stop him. The acts of sexual
abuse were also recounted to the officer
during the course of his interviews with
the three children. However, as a result
of his reliance upon the opinion of the
children's therapist, the officer kept
them together in the same special care
foster home. This, it was believed, would
make the children easier to treat.
Mr. Lucas was active in a Saskatoon
prisoners' rights group. He was contacted
by four of the individuals whose charges
had been stayed. They were seeking advice
as to how to cope with the impact that
these allegations were having on their
lives even though the charges had been
stayed. The individuals maintained that
they were innocent and agreed to provide
John Lucas with all of the information and
documentation they possessed regarding the
charges. This consisted of transcripts,
reports prepared by the children's
therapist and notes prepared by Mrs. T.
which described, in vivid detail, the
sexual activities of the three children.
On the basis of these documents, the
appellants apparently understood that [M.
1] had raped, sodomized and tortured his
sister [K.] and repeatedly participated in
sexual activities with his other sister,
[M. 2]. They concluded that the officer
had knowledge of what was transpiring and
that as a police officer, he had a duty to
intervene. Consequently, they could not
understand why he had not done so. Several
complaints were made to the Police
Commission, the Premier's office and the
office of the Attorney General, but the
appellants did not obtain their desired
response.
As a result, on September 20, 1993,
the appellants and a small group of others
picketed outside the Provincial Court of
Saskatchewan and the police headquarters
where the officer worked. Mrs. Lucas was
carrying a sign prepared by Mr. Lucas
which read on one side: "Did [the police
officer] just allow or help with the
rape/sodomy of an 8 year old?" and on the
other side: "If you admit it [officer]
then you might get help with your touching
problem." Mrs. Lucas was arrested and
charged with defamatory libel under ss.
300 and 301 of the Code. Mr. Lucas was
warned that if he continued to carry signs
naming individuals, he too would be
charged.
The following day, Mr. Lucas again
picketed in front of the Provincial Court
and police headquarters. This time, he
carried a sign which, on one side, read:
"Did [the police officer] help/or take
part in the rape & sodomy of an 8 year
old. The T[] papers prove [the officer]
allowed his witness to rape"; and on the
other side: "The T[] papers prove [the
officer] allowed the false arrest &
detention of Mrs. Lucas, with a falsified
information". Mr. Lucas was subsequently
arrested and charged under ss. 300 and 301
of the Code.
At trial, the appellants argued that
their freedom of expression as guaranteed
by s. 2(b) of the Charter had been
infringed. The trial judge agreed but
concluded that s. 300 was saved by s. 1 of
the Charter. He found both of the
appellants guilty of defamatory libel
under s. 300 and held that the appellants
should have known that the statements on
their placards were false. Mr. Lucas was
sentenced to imprisonment for two years
less a day, and Mrs. Lucas was sentenced
to imprisonment for 22 months. The
appellants appealed to the Court of
Appeal. Their appeals against conviction
were dismissed, but their appeals against
sentence were allowed, and the sentences
were reduced to 18 months and 12 months
respectively.
[5] Recently, in 2000 and 2001, all three of the R.
children, now adults, have recanted their allegations that
they were sexually assaulted by their foster parents or
members of the foster parents' extended family, but have
confirmed that the two girls were subjected to on-going and
brutal sexual abuse by their brother over many years,
including the time that they were kept together in the same
foster home after their initial allegations. The plaintiff,
who had been arguing (indeed, persistently and publicly
proclaiming) for years that the evidence to which he had
access showed this to be the case, now feels vindicated. He
has concluded that his conviction for criminal libel is now,
for this reason, shown to have been wrongful and alleges that
the defendants conspired to mislead the courts in order to
obtain the conviction and to "shut him up" in relation to his
very public criticism of the handling of the children's
allegations.
[6] Paragraph 3 of the statement of claim makes this
general allegation:
3. Irrefutable NEW EVIDENCE obtained
within the last year, conclusively
shows that all of the Defendants, or
more than one, entered into a
criminal conspiracy during the summer
of 1993 to have the Plaintiff
unlawfully charged and maliciously
prosecuted under Sections 300 and 301
of the Criminal code [sic] for
claiming that Defendant Dueck was
responsible for allowing or taking
part in the rape and sodomy of two
eight year old girls;
(a) The Plaintiff says and the facts
are, that in 1998, the Supreme
Court of Canada unanimously
upheld the Plaintiff's Section
300 conviction regarding the
above described September, 1993,
Section 300, Criminal Code
charge;
(b) The Plaintiff says and the fact
is, that the Plaintiff has taken
extreme care regarding Rule 173
c., in the Rules of Court, but
it should be noted that this
lawsuit revolves around the now
undisputed fact that Defendant
Dueck and Defendant Bunko-Ruys,
allowed [M. 2] R. and [K.] R. to
be raped, sodomized and
otherwise tortured, for a period
of 43 months.
[7] Other paragraphs allege that "all of the Defendants
or more than one of them" committed perjury, suborned
evidence, interfered with witnesses, failed to make a full and
complete disclosure or failed in their duty to report "the
foregoing" (para. 4); did not have an honest belief in the
guilt of the Plaintiff and conspired against him to avoid
criticism "for allowing [[M. 1] R.] to rape, sodomize and
torture [his sisters] (para. 5) or "for allowing the cover-up
that followed their discovery that. . .Dueck and. . .Bunko-
Ruys had allowed [[M. 1] R. to do the acts described.]" (para.
6); removed [M. 1] R. to an undisclosed location after the
plaintiff attempted to subpoena him in 1993 and then falsely
portrayed to the Court that [M. 1] R. was only a ten or eleven
year old child with a "touching problem" although, in fact, he
was at the time 14 years old and the allegations against him
were on going and much more serious (para. 7(a)).
[8] The various defendants raise a number of objections
to the statement of claim. Counsel for the individual lawyers
Walen, Rossmann and Donlevy argues that the plaintiff has
failed to allege material facts sufficient to found either an
allegation of conspiracy or the tort of abuse of statutory
power in that there is a bare allegation of an agreement, but
no facts from which an agreement can be inferred, (similarly
re the allegations of perjury and lack of honest belief in the
plaintiff's guilt) and there are no allegations of any overt
acts which any of these defendants performed in pursuance of
the conspiracy. He argues, further, that it appears that
these defendants have been named in the present action solely
on the basis of their action as lawyers representing the
interests of various of the other parties. He cautions that
the court should be extremely cautions in allowing lawyers, in
their role as professional advisors, to be drawn into actions
on this basis, for such actions impair the lawyers' ability to
fully and vigorously represent their clients and is against
the public interest in the absence of "convincing evidence
that the lawyers either assumed a duty of care or were acting
in bad faith".
[9] Counsel for the Government of Saskatchewan ministers
and employees and counsel for the employees and departments of
the City of Saskatoon similarly complain of the vague and
unfocused allegations of perjury, suborning evidence and
interfering with witnesses. No specific defendants are
identified in the statement of claim as having committed such
acts.
[10] All the defendants argue that in an action for
conspiracy the statement of claim must describe the parties to
the conspiracy, precisely state the purpose or object of the
alleged conspiracy, and give particulars of the agreement, the
overt acts committed by each conspirator and the damage
sustained by the plaintiff as a result. The elements of the
tort of conspiracy are set out in Canada Cement LaFarge Ltd.
v. British Columbia Lightweight Aggregate Ltd., [1983] 1
S.C.R. 452.
[11] All also argue that an action for malicious
prosecution in relation to the plaintiff's 1993 conviction for
criminal libel cannot succeed in light of the decision of the
Supreme Court of Canada, ultimately upholding that conviction,
in 1998. First, it is argued that a claim of malicious
prosecution cannot succeed unless the prosecution complained
of resulted in the plaintiff's acquittal (citing decisions of
the Supreme Court of Canada in Nelles v. Ontario, [1989] 2
S.C.R. 170 and Proulx v. Quebec (Attorney General), [2001]
S.C.J. No. 65 (S.C.C.)(QL). Second, it is argued that the
present action seeks to relitigate issues in relation to the
plaintiff's conviction that were, in any case, fully canvassed
and dealt with in the Supreme Court decision.
[12] The tests to be applied in determining whether a
claim should be struck pursuant to Rule 173(a), (c) or (e)
were addressed by the Saskatchewan Court of Appeal in Sagon v.
Royal Bank of Canada et al. (1992), 105 Sask. R. 133. Re Rule
173(a), Sherstobitoff J.A. commented as follows:
[16] In determining whether a claim should
be struck as disclosing no reasonable
cause of action, the test is whether,
assuming the plaintiff proves everything
alleged in his claim, there is
nevertheless no reasonable chance of
success, or to put it another way, no
arguable case. The court should exercise
its jurisdiction to strike on this ground
only in plain and obvious cases and where
the court is satisfied that the case is
beyond doubt: Marshall v. Saskatchewan,
Government of, Petz and Adams (1983), 20
Sask. R. 309 (C.A.); The Attorney General
of Canada v. Inuit Tapirisat, [1980] 2
S.C.R. 735; 33 N.R. 304. The court may
consider only the statement of claim, any
particulars furnished pursuant to demand,
and any document referred to in the claim
upon which the plaintiff must rely to
establish his case: Balacko v. Eaton's of
Canada Limited (1967), 60 W.W.R. (N.S.) 22
(Sask. Q.B.); Lackmanec v. Hoffman and
Wall (1982), 15 Sask. R. 1 (C.A.).
[13] Sherstobitoff J.A. also pointed out that Rule 173
permits amendment rather than striking out in appropriate
cases (at para 17. p. 140.).
[14] Regarding sub-rule 173(c), he commented:
[18] Striking out an entire claim on the
ground that it is frivolous, vexatious or
an abuse of process of the court is based
on an entirely different footing. Instead
of considering merely the adequacy of the
pleadings to support a reasonable cause of
action, it may involve an assessment of
the merits of the claim, and the motives
of the plaintiff in bringing it. Evidence
other than the pleadings is admissible.
Success on such an application will
normally result in dismissal of the
action, with the result that the rule of
res judicata will likely apply to any
subsequent efforts to bring new actions
based on the same facts. Odgers on
Pleadings and Practice, 20th Ed. says at
pp. 153-154:
"If, in all the circumstances of the
case, it is obvious that the claim or
defence is devoid of all merit or
cannot possibly succeed, an order may
be made. But it is a jurisdiction
which ought to be very sparingly
exercised, and only in very
exceptional cases. Its exercise
would not be justified merely because
the story told in the pleadings is
highly improbable, and one which it
is difficult to believe could be
proved." (footnotes omitted)
[15] And finally, regarding sub-rule 173(e);
[19] Finally, a separate mention should be
made of the power of the court to prevent
abuse of its process, a power which is
inherent as well as conferred under rule
173. Bullen and Leake defines the power
as follows as pp. 148-149:
"The term `abuse of the process of
the court' is a term of great
significance. It connotes that the
process of the court must be carried
out properly, honestly and in good
faith; and it means that the court
will not allow its function as a
court of law to be misused but will
in a proper case, prevent its
machinery from being used as a means
of vexation or oppression in the
process of litigation. It follows
that where an abuse of process has
taken place, the intervention of the
court by the stay or even dismissal
of proceedings, `although it should
not be lightly done, yet it may often
be required by the very essence of
justice to be done'.
"The term `abuse of process' is often
used interchangeably with the terms
`frivolous' or `vexatious' either
separately or more usually in
conjunction." (footnotes omitted)
[16] Applying these principles in the instant case, a
number of points can be made. The defendants' arguments in
relation to sub-rule 173(a), that the statement of claim
discloses no cause of action, all revolve around what might be
described as the generality, lack of focus and lack of
particulars of the allegations in the pleadings. These are
not, of course, trivial complaints, for these faults make it
difficult or impossible for the defendants to plead in
response. The failure to define the role it is alleged that
particular named defendants played in the alleged conspiracy
is particularly troublesome, for it is not at all clear how
some of the defendants could have been involved in any way
with the 1993 prosecution of the plaintiff. It seems clear
from the material filed by the plaintiff in response to these
applications, and from his oral presentations, that some of
the defendants (presumably this would include the two cabinet
ministers, the police and social worker supervisors and the
Board of Police Commissioners of the City of Saskatoon) are
thought to be vicariously liable for the actions of their
employees, or those whom they were responsible for
supervising. This, however, is not alleged in the statement
of claim.
[17] These faults, together with the general failure to
plead sufficient material facts, such as an allegation of an
agreement, to sustain the allegation of a conspiracy, would,
in my view, be sufficient to make it impossible to allow the
statement of claim to stand in its present form. However, it
is to be remembered that the plaintiff is unrepresented in
this action. In my view, the general nature of the
allegations is clear, and it is possible that these defects
could be remedied by amendment, or even by responses to
demands by the defendants for particulars.
[18] Unfortunately for the plaintiff's case, the matter
does not end there. I am satisfied after a careful reading of
the statement of claim together with the material filed by the
plaintiff on this application, coupled with attention to his
oral arguments on the hearing of the application, that this
claim cannot succeed in light of the decision of the Supreme
Court of Canada in R. v. Lucas, above cited, which upheld the
1993 convictions of the plaintiff and his wife.
[19] The plaintiff clearly believes that evidence by the
now adult R. children to the effect that the foster families
were innocent of any sexual abuse of the children, but that
[M. 1] R. was subjecting his sisters to on-going and serious
sexual abuse, will show that his concerns and complaints about
the way the matter was handled, at the time, had considerable
merit. It is clear that he was particularly outraged by the
characterization of [M. 1]'s actions, in the investigative
reports to which he gained access, as a "touching problem".
He apparently felt that this ludicrously minimized [M. 1]'s
alleged conduct and tended to discount the impact this should
have had on the children's credibility. He also believed that
it resulted in leaving [M. 1] in a position to continue the
abuse. It is possible that these concerns will now be shown
to have been well founded. While the posters and signs the
plaintiff drafted and which were carried by his wife and
himself were not merely intemperate, but made scandalous
allegations against the investigating police officer, it is
clear that they were motivated by these beliefs and these
concerns, and a desire to bring these matters to the public
attention. This was recognized by Cory J. in his outline of
the facts leading to the criminal libel charges, quoted above.
[20] I am not persuaded that the effect of Nelles and
Proulx is necessarily to require proof of an acquittal in
order to sustain an allegation of malicious prosecution, where
it is the position of the plaintiff, as in this case, if I
understand it, that his conviction was obtained by fraud
(withholding evidence from the Court, or misleading the Court,
in relation to the facts disclosed to the investigating
parties which would have pointed to the abuse of his sisters
by [M. 1] R.). These cases do not address the possibility of
a conviction subsequently shown to have been a wrongful
conviction, or one obtained by fraud.
[21] Nonetheless, it is clear that in order to succeed in
this action the plaintiff must establish that his conviction
was wrongful. Many may feel concern about the prosecutorial
use of s. 300 of the Criminal Code to suppress public
criticism, by a citizen, of the official handling of matters
of such grave public concern however ill considered and
untempered such criticism may be. However, previous decisions
in relation to the plaintiff's conviction, binding on this
court - particularly that of the Supreme Court of Canada -
make it clear both that this use of s. 300 of the Criminal
Code is constitutional and that the factual basis for the
conviction of Mr. Lucas was in no way dependent upon the truth
or lack of truth of Mr. Lucas' beliefs about the sexual abuse
of his sisters by [M. 1] R.
[22] The careful analysis of Cory J. in the Supreme Court
judgment makes it clear that the plaintiff cannot succeed, on
this basis, in establishing that his conviction was wrongful.
The passages quoted, above, from the judgment of Cory J. show
that he was well aware of the allegations that motivated the
plaintiff and his wife to carry the impugned placards. The
conviction was nonetheless upheld on the basis that the
objective meaning of the signs was, even in light of the facts
believed by the plaintiff to be true, false and defamatory,
and the accused knew the allegations on the placards to be
false. This is clearly set out in the following passages from
the judgment of Cory J.
There are two aspects to the mens rea
issue. First, did the appellants intend
to defame the police officer? Secondly,
did they know that the statements they
published were false? With respect to the
former, there can be no clearer indication
of their intention to defame the police
officer than the testimony of Mr. Lucas
that their purpose in publishing the
statements was "to have him thrown in
jail", "to have him lose his pension, his
job", and "to have him charged in court".
Clearly then, their intention was to
injure the reputation of the officer, and
thus came within the definition of
defamatory libel set out in s. 298. This
conclusion is reinforced both by the
inflammatory and provocative language used
in the placards, and by the displaying of
the placards in the locations which were
calculated to have the most embarrassing
and injurious effect on the officer.
The placards accused the police
officer of actually physically assaulting
a child by stating: "Did [the police
officer] help/or take part in the rape &
sodomy of an 8 year old". Further, one of
the signs made by Mr. Lucas, but carried
by his wife at her insistence, implied
that the officer had a "touching problem",
an obvious euphemism for a proclivity for
sexual molestation. It stated: "If you
admit it [officer] then you might get help
with your touching problem."
There was evidence adduced at trial
which proves beyond a reasonable doubt
that they both knew that the objective
meaning of the words on the placards Mr.
Lucas made was false. Mr. Lucas testified
that his wife had access to the pertinent
documents, and that he and his wife had
read them together and discussed them.
Moreover, he testified that he and his
wife were concerned about the police
officer's tendency to refer to the
children's sexual activities as a
"touching problem". It is also apparent
that the appellants knew that the officer
did not have a "touching problem". In
light of this, the evidence is clear and
overwhelming that on a subjective
standard, the appellants knew that the
material on the placard prepared by Mr.
Lucas and carried by Mrs. Lucas was false.
Yet Mrs. Lucas insisted on carrying this
placard. There was simply no evidence in
the material the appellants read that the
officer had a proclivity for sexual
molestation, that is to say a "touching
problem".
. . .
The appellants knew that the police
officer had not committed the despicable
acts implied by the signs. Mr. Lucas
admitted that there were no accusations in
the T. papers of sexual abuse by the
officer and that they knew that the
officer had not sexually assaulted
anybody. Further, the appellants knew
that the officer did not have a "touching
problem" per se. Rather, they believed
that he had inappropriately used the word
"touching". There is ample evidence that
the appellants had the requisite knowledge
of falsity to uphold their conviction
under s. 300.
[23] This conclusion both binding and unassailable. It
is clear that even if the plaintiff now were successful in
proving that the concerns that motivated his 1993 protest were
well founded, it would not follow that his conviction was
improper, for it was clearly based, not on a misconception by
the Court of the facts surrounding these children, but on the
falsity and the defamatory nature of the allegations against
the police officer on the placards that were carried.
[24] In short, the plaintiff cannot succeed in this
action unless he can establish that, in light of the evidence
of the now adult R. children, his 1993 conviction for
criminal libel was wrongful. The decision of the Supreme
Court of Canada in R. v. Lucas makes it clear that the
plaintiff cannot establish that, for the evidence of the R.
children is irrelevant to the basis upon which his conviction
was upheld.
[25] In addition to the other defects in the statement of
claim already noted, I am satisfied that to allow this claim
to continue would permit the plaintiff to relitigate issues
already determined against him by the Supreme Court of Canada
and would therefore constitute an abuse of the process of this
Court.
[26] The statement of claim is struck and the action is
dismissed with costs to the defendants represented on this
application.
J.
|
|
![[EFC Blue Ribbon - Free Speech Online]](http://www.efc.ca/images/efcfreet.gif)
