The Plaintiffs JOHN DAVID LUCAS, JOHANNA ERNA LUCAS filed the below Statement of Claim dated May 14, 2007.
Q.B. No. 616, 2007
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
JOHN DAVID LUCAS, JOHANNA ERNA LUCAS
PLAINTIFFS
AND :
JOSEPH FABER, KIM CRIDLAND, BRIAN GEORGE DUECK, SASKATOON BOARD OF POLICE COMMISSIONERS, UNKNOWN POLICE EMPLOYEE #1, UNKNOWN POLICE EMPLOYEE #2, PROVINCE OF SASKATCHEWAN, MURRAY BROWN, DARYL RAYNER, DONALD ARTHUR MCKILLOP, JAMES PLEMEL, CHARITA OHASHI, UNKNOWN CROWN PROSECUTOR # 1, UNKNOWN CROWN PROSECUTOR # 2, ROD DONLEVY, PAUL HRABINSKY
DEFENDANTS
STATEMENT OF CLAIM
This Statement Of Claim was prepared by John David Lucas & Johanna Erna Lucas. The address for service of both Plaintiffs is; 6th Avenue North, Saskatoon, Saskatchewan S7K 2T4 Phone: (306) 653-
NOTICE TO DEFENDANT
1. The Plaintiff may enter judgment in accordance with this Statement of Claim or such judgment as may be granted pursuant to the Rules of Court unless
within 20 days if you were served in Saskatchewan; within 30 days if you were served elsewhere in Canada or in the United States of America; within 40 days if you were served outside Canada and the United States of America; (excluding the date of service). you serve a Statement of Defence on the Plaintiff and file a copy thereof in the office of the Local Registrar of the Court for the Judicial Centre above-named.
2. In many cases a defendant may have the trial of the action held at a judicial centre other than the one at which the Statement of Claim is issued. Every defendant should consult his lawyer as to his rights.
3. This Statement of Claim is to be served within 6 months from the date on which it is issued.
4. This Statement of Claim is issued at the above named judicial centre on May 14th, 2007.
DIANE PAPUZYNSKI Deputy Local Registrar
SEAL
CLAIM
1. The Plaintiff John David Lucas resides in Macrorie, Saskatchewan.
2. The Plaintiff Johanna Erna Lucas resides in Macrorie, Saskatchewan.
3. The Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, are husband and wife and at times material hereto, were engaged in trying to clear their names by attempting to obtain a review of a section 300 conviction that was entered against both the Plaintiffs and upheld by the Supreme Court of Canada. . 4. On September 15th, 2003, Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, were arrested and incarcerated by the Saskatoon City Police, in the City of Saskatoon, Saskatchewan.
5. On September 16th, 2003, Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, were charged with the following identical Criminal Code Offences, that were contained on INFORMATION # 44911275 and Occurrence (s) : 95410-03; a. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did commit a contempt of court by causing posters to be displayed which were contemptuous of Justice Paul Hrabinsky, a Judge of the Court of Queen's Bench, of Saskatchewan, contrary to law.
b. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Justice Paul Hrabinsky, by exposing him to hatred, contempt or ridicule, or that was designed to insult Justice Paul Hrabinsky, knowing that the matter was false and did thereby commit an offence, contrary to section 300 of the Criminal Code
c. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Superintendent Brian Dueck, a peace officer, by exposing him to hatred, contempt or ridicule, or that was designed to insult Superintendent Brian Dueck, knowing that the matter was false and did thereby commit an offence, contrary to section 300 of the Criminal Code.
d. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Rod Donlevy, by exposing him to hatred, contempt or ridicule, or that was designed to insult Rod Donlevy, knowing that the matter was false and did thereby commit an offence, contrary to section 300 of the Criminal Code.
6. In this Statement of Claim, where the Plaintiffs plead "the Defendants" they refer to all the Defendants, or one or more of the Defendants.
7. At all material times the Defendant Joseph Faber,
a. resided in or near Saskatoon, and b. was employed as a police officer by the Saskatoon Board of Police Commissioners, and c. was responsible for the investigation of various allegations of defamatory libel and contempt of court, that one or more persons made, involving both Plaintiffs, and d. interviewed the Plaintiffs, and talked with the Plaintiffs on numerous occasions and was thoroughly familiar with the said allegations, and e. stored the material that he seized from the Plaintiffs’ residence and car on September 15th, 2003, in the temporarily vacated office of his friend and colleague, Defendant Brian George Dueck, who was in the midst of a civil proceeding, that was related to some or all of the allegations, contained within paragraphs 3, 4 and 5, according to Defendant Joseph Faber’s, notes and testimony, and f. failed to use the material seized from the Plaintiffs’ home on September 15th, 2003, to determine whether or not the allegations of defamatory libel and contempt of court, were either true or false. g. claimed that his investigation related to the matters dealt with by the Supreme Court decision and the civil proceeding, that his friend and colleague Defendant Brian George Dueck, was involved in, that were mentioned in paragraphs 3, 4, and 5, and h. failed to act on or report, that the evidence he seized from the Plaintiffs on September 15th, 2003, showed that Defendant Brian George Dueck, had committed perjury in a case that was closely related and mentioned in paragraph 3, and directly related to some of the allegations contained within paragraph 5, and i. failed to act on or report, that the evidence he seized from the Plaintiffs on September 15th, 2003, showed that the Defendant Brian George Dueck, had knowingly failed in his duty, when he allowed two child witnesses to be raped and sodomized over a 43 month period, between May 29th, 1990 and January, 1994, and j. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing of the Defendants and other persons, and k. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs, and l. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs, and m. while under oath, knowingly misrepresented his true knowledge about the matters contained in paragraphs 3, 4, and 5, and n. knowingly tried to mislead a senior prosecutor, with a manufactured story that the Plaintiff John David Lucas, had made a threatening call to a court worker, regarding Mr. Justice Hrabinsky, and o. knowingly tried to undermine the relationship that the Plaintiffs had with one another, by making false statements to Plaintiff Johanna Erna Lucas.
8. At all material times the Defendant Kim Cridland,
a. resided in or near Saskatoon, and b. was employed as a police officer by the Saskatoon Board of Police Commissioners, and c. had access to the material seized by Sergeant Faber, from the Plaintiffs’ car and residence, on September 15th, 2003, and d. could not have lawfully concluded that she had reasonable and probable grounds and did believe, the allegations contained in INFORMATION # 44911275, on September 16th, 2003, and e. signed INFORMATION # 44911275, before the person in charge of the investigation, had interviewed either of the Plaintiffs, and f. failed to interview either Plaintiff, and g. knowingly abused the process of law by signing INFORMATION # 44911275, on September 16th, 2003, with a malicious intent.
9. At all material times the Defendant Brian George Dueck,
a. resided in or near Saskatoon, and b. was employed as a police officer by the Saskatoon Board of Police Commissioners, and c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and d. conspired with the Defendants and other persons, to have the Plaintiffs maliciously charged, in order to cover-up the fact that he had knowingly failed in his duty, when he allowed two child witnesses to be raped and sodomized over a 43 month period, between May 29th, 1990 and January, 1994, and e. conspired with the Defendants and other persons, in order to avoid prosecution for the untruthful testimony he had given at the trial mentioned in paragraph 3 and or other proceedings, that directly or indirectly, related to the Plaintiffs, or involved both Plaintiffs, and f. conspired with the Defendants and others, in order to stop the lawful review of a section 300 conviction, that was entered against both the Plaintiffs, and g. knowingly abused the process of law in order to stop the Plaintiffs from exposing his own wrongdoing.
10. At all material times, the Saskatoon Board of Police Commissioners was,
a. the statutory board empowered to administer Police Services in Saskatoon, Saskatchewan, and b. the employer of the Defendants, Joseph Faber, Kim Cridland, Brian George Dueck, Unknown Police Employee #1 and Unknown Police Employee #2, and c. responsible to supervise these Individuals actions as they related to their contract with or employment by the Saskatoon Board of Police Commissioners and negligently failed to properly supervise the actions of these individuals, or in the alternative, was vicariously responsible for the actions of these individuals, and d. in the unique position of having some knowledge regarding the actions taken by those they employed in this matter, and e. owed a duty of care to the Plaintiffs, because of the information that was in their possession.
11. At all material times the Defendant Province of Saskatchewan (or in the alternative the Minister of Justice for the Province of Saskatchewan),
a. was the employer of Defendants Murray Brown, Daryl Rayner, Donald Arthur McKillop, James Plemel, Charita Ohaashi, unknown Crown Prosecutor # 1, unknown Crown Prosecutor # 2, and b. was responsible to supervise these Individuals actions as they related to their contract with or employment by the Province of Saskatchewan and negligently failed to properly supervise the actions of these individuals, or in the alternative, was vicariously responsible for the actions of these individuals, and c. in the unique position of having some knowledge regarding the actions taken by those they employed in this matter, and d. owed a duty of care to the Plaintiffs, because of the information that was in their possession.
12. At all material times the Defendant Murray Brown,
a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was the Executive Director of Public Prosecutions for the Province Of Saskatchewan, or acting as counsel for the estate of Richard Quinney, in Q.B. 271 (1994), Judicial Centre of Saskatoon, and d. was fully conversant with every aspect of both Plaintiffs arrest, detention and attempted prosecution, and e. had possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and g. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs, and i. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs.
13. At all material times the Defendant Daryl Rayner,
a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was Director of Prosecutors for the Province of Saskatchewan, or acting Executive Director of Public Prosecutions for the Province of Saskatchewan, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had access to, or direct possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and g. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs, and i. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs.
14. At all material times the Defendant Donald Arthur McKillop,
a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was a senior Crown working in the Civil Division, for Saskatchewan Justice, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and g. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs, and i. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs.
15. At all material times the Defendant James Plemel,
a. resided in or near Saskatoon, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was the Regional Crown prosecutor for Saskatchewan Justice in Saskatoon, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and g. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of one or more of the Defendants, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs, and i. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs.
16 .At all material times the Defendant Charita Ohaashi,
a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was a Crown working in the Civil Division, for Saskatchewan Justice, and d. had access to the same material held by Defendant Donald Arthur McKillop, and e. owed a duty of care to the Plaintiffs, because of the information that was in the Defendant’s possession. f. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of one or more of the Defendants, and g. knowingly conspired with the Defendants and other persons, to maliciously prosecute the Plaintiffs, and h. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs.
17. At all material times the Defendant Rod Donlevy,
a. resided in or near Saskatoon, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had access to the same material held by Defendant Donald Arthur McKillop, and f. owed a duty of care to the Plaintiffs, because of the information that was in the Defendant’s possession, and g. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and h. knowingly conspired with the Defendants and others, in order to maliciously prosecute the Plaintiffs, and i. knowingly conspired with the Defendants and others, in order to avoid making a full disclosure to the Plaintiffs.
18. At all material times the Defendant Paul Hrabinsky,
a. resided in or near Saskatoon, and b. was a Judge of the Court of Queen's Bench, of Saskatchewan, and c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. owed a duty of care to the Plaintiffs, because of the information that was in the Defendant’s possession, and f. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and g. knowingly conspired with the Defendants and other persons, to maliciously prosecute the Plaintiffs, and h. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs, and i. knowingly obstructed justice, when he failed to report Defendant Brian George Dueck, for committing perjury in his court, and j. knowingly made false allegations about the Plaintiff John David Lucas, to Mr. Justice Malone, on April 17th, 2002, k. failed to report the incident directly above to his described Chief Justice, when he learned that his friend and colleague, Mr. Justice Malone, had been selected by said Chief Justice, to act in the jury trial, regarding the allegations contained in paragraph 5, and l. failed to deal with the Judicial Council of Canada, Saskatchewan Justice, or his own Chief Justice, in an honest manner, and m. tried to avoid testifying at the trial that was scheduled for the Plaintiff John David Lucas, regarding the allegations, contained in paragraph 5.
19. The Plaintiffs are omitting no averment which is essential to their success, nor will they leave such averment to a mere inference, or mere implication, to be deduced from the form in which their pleadings are framed. Where it was reasonably possible, the Plaintiffs have avoided mentioning any member of the judiciary.
20. On September 16th, 2003, all of the Defendants, with the exception of Defendant Charita Ohaashi, knew that some of the allegations contained in paragraph 5, were untrue.
21. On September 16th, 2003, Defendant Murray Brown, Defendant Daryl Rayner, Defendant Donald Arthur McKillop, Defendant Brian George Dueck, Defendant Rod Donlevy, Defendant Paul Hrabinsky and other persons, knew that none of the allegations contained within paragraph 5, were true.
22. The Defendants and other persons, deliberately withheld disclosure from Thomas Macnab and Jeff Kalmakoff, the two senior Saskatchewan Justice prosecutors, who dealt with the allegations that appear in paragraph # 5.
23. Without making any disclosure available, a stay of proceeding was entered by the Crown in October, 2003, on those matters dealing with the Plaintiff Johanna Erna Lucas.
24. The Crown refused to give the Plaintiff Johanna Erna Lucas, any disclosure after they had entered the stay of proceedings in late October, 2003.
25. The Plaintiff Johanna Erna Lucas, was required to read between the lines from Plaintiff John David Lucas’ disclosure, after his last charge was stayed, in order to understand the exact nature of the malicious prosecution, that was attempted by the Defendants and other persons, to have her incarcerated for a crime that had never occurred.
26. After Mr. Justice Baynton’s decision on December 30th, 2003, dealing with a related matter, Plaintiff John David Lucas, immediately contacted several authorities within Saskatchewan Justice and demanded that he be released from the Saskatoon Correctional, pending trial.
27. While it is true that Thomas Macnab, a senior prosecutor, had asked for and received permission from Regina, to withdraw Saskatchewan Justice’s objection to the immediate release of Plaintiff John David Lucas, the contentious nature of the hearing held on January 8th, 2004 and involvement of the Defendants and other persons, made it appear that there was judicial bias. The Plaintiff John David Lucas, claims that he can prove that Mr. Justice Kyle did not believe that the Defendants had any part in the cover-up of those matters specifically dealing with Defendant Brian George Dueck, prior to and on January 8th, 2004. The Plaintiffs intend to show that the Defendants and other persons, poisoned the atmosphere within the judiciary, with their untrue allegations that are contained within paragraph 5. The conditions of release and remarks made by Mr. Justice Kyle, made it impossible for the Plaintiff John David Lucas, to believe he could or would receive a fair hearing. Those remarks and conditions also forced the Plaintiff Johanna Erna Lucas, to refrain from repeating the allegations, that she knew to be true, or taking any other action, as long as her husband was in jeopardy. The Plaintiff Johanna Erna Lucas, believed that the Defendants and others, had effectively silenced her.
28. Paragraph 3, should make it clear that the Plaintiffs are not criticizing any member, or past member of the judiciary, for strongly expressing their honestly held opinions, on a matter that is considered to be and is, settled law.
29. The Defendants knowingly used the similarities between the matter mentioned in paragraph 3 and paragraph 5, with the intention of misleading the court.
30. Even with Mr. Justice Baynton’s, December 30th, 2003 decision, on a related matter, the Defendants knew that they could succeed with their unlawful prosecution of Plaintiff John David Lucas, by withholding disclosure, if either the prosecutor, or members of the judiciary, refused to read the thousands of pages of documents, that he had in his possession. That fortunately, did not occur.
31. On the second to last Pre-Trial Conference held before Mr. Justice D. K. Krueger, the Plaintiff John David Lucas, was told that the justice had decided to do the extraordinary and request in writing to his Chief Justice, that the Chief Justice should contact the Chief Justice of the Appeal Court for Saskatchewan and arrange to have the trial heard by one of their members, because appearances and some factual matters made it look as if the accused would not receive a “fair hearing”, in the Court of Queen’s Bench. Mr. Justice Krueger, made it clear that he had the full support of Mr. Justice Allbright. The accused at that time was asked if he would forgo his automatic right to an Appeal before that court and the Plaintiff John David Lucas, formally agreed to do so. This of course placed the accused in great jeopardy, but the matters were very, very, serious. Between a late disclosure made by Defendant Joseph Faber and an admission that Jeff Kalmakoff made to the Plaintiff John David Lucas, it was clear that an attempt was made by a member of the Queen’s Bench Judiciary, to take over the case at trial. The fact that it was not stopped before it began, just makes it more malicious.
32. The Defendant Charita Ohaashi and Defendant Donald Arthur McKillop, are responsible for making the following inference; “the Respondent (LUCAS) has demonstrated a marked interest in the subject matter of those lawsuits.” Defendant Donald Arthur McKillop, with the help of Defendant Charita Ohaashi, tried to carefully craft a response to a valid Subpoena, so that he could unlawfully avoid appearing, by inflaming the court with untrue allegations and misrepresenting the facts surrounding withheld disclosure.
33. Both of the Plaintiffs have tried to simplify this action by not attacking that which is quite properly considered settled in paragraph 3, but it was the Defendants who directed both the investigation and or the prosecutors, to extensively make use of thousands of pages, that directly relate to that particular matter. The Plaintiffs find it essential to the success of their action to include allegations about how the Defendants have used, or allowed to be used, material from another trial, in order to manufacture evidence that they know is false. While the Plaintiffs might believe that there is sufficient evidence to prove that the matter in paragraph 3, should be reviewed, that has nothing to do with this claim. We are interested in dealing with September, 2003 and not September, 1993. Res judicata has nothing to do with this claim. a. During the month of September 1993, the Plaintiffs were arrested for making certain allegations about Defendant Brian George Dueck, public. In April 1998, the Supreme Court of Canada, upheld their conviction for making those allegations, and b. On September 15th, 2003, the Plaintiffs were arrested for making the same allegations about Defendant Brian George Dueck. The Crown withdrew both charges, even though the allegation has the Plaintiff John David Lucas, freely admitting that he purposely postered hundreds of utility poles, with the exact words that both he and his wife used in 1993, that were judged to be defamatory, and c. The Plaintiffs intend on proving that the charges involving Defendant Brian George Dueck, were dropped when it became apparent that the Plaintiffs could prove that defendant Brian George Dueck, allowed Kathleen Jessica Ross and Michelle Mimi Ross, to be sodomized, raped and otherwise tortured, for 43 months, between May 29th 1990 and January, 1994. The Plaintiffs can also prove that Brian George Dueck became a party to the offence of rape under Section 21 and committed perjury in order to avoid prosecution, and d. Before the senior prosecutor, Mr. Kalmakoff, had become conversant with the matters dealt with in paragraph 5, he was instructed by the Defendants to ask the Plaintiff John David Lucas, to plead guilty with a promise of no incarceration, on a single charge involving Mr. Justice Hrabinsky. Plaintiff John David Lucas refused the offer and made it clear that he could prove Defendant Paul Hrabinsky, knowingly acted in a corrupt manner, and e. The “reasonable person” test, that Saskatchewan Justice unfairly made the Plaintiffs pass without giving them the benefit of disclosure in a prior matter, no longer holds true. The Defendants maliciously charged and held the Plaintiffs, when they knew no crime had taken place. The Defendants have continued to act as if they have done nothing wrong, even when it became obvious that they had done what they had done, in order to avoid ridicule and embarrassment, for allowing Defendant Brian George Dueck, to escape criminal prosecution.
34. The Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, allege that a major turning point occurred in this matter, when we made certain files available to Mr. Jeff Kalmakoff, a senior Crown prosecutor. In a spontaneous admission made in front of witnesses, Jeff Kalmakoff stated in clear English, that Brian George Dueck, had allowed Kathleen Jessica Ross and Michelle Mimi Ross, to be raped and sodomized, for a period of 43 months. Jeff Kalmakoff to his credit, also refused to deny this fact when the Plaintiff John David Lucas, informed more than one member of the judiciary.
35. The Defendants and other persons, took some or all of the above actions for illegal, wrongful and improper purposes. For a period of almost 14 years, the Defendants and other persons, have unlawfully withheld the disclosure that would have proven the allegations made by Plaintiff John David Lucas, between September 8th & 15th, 2003. Time after time they denied the truth about what had occurred with the Ross girls and claimed the allegations were scandalous, frivolous and vexatious. The Defendants knowingly conspired with one another, to perpetrate a fraud upon the Court of Queen’s Bench for Saskatchewan.
36. The Defendants and other persons, behaved deliberately in doing the above actions, or in the alternative, the Defendants acted negligently in doing the above actions.
37. The Defendants and other persons deliberately tried to destroy the Plaintiff’s marriage, when they unlawfully detained and charged, Plaintiff Johanna Erna Lucas. That reckless conduct may have also contributed to Plaintiff Johanna Erna Lucas’ serious heart condition, which became apparent shortly after the above described unlawful detention.
38. The Plaintiffs claim punitive damage on the basis that the conduct of the Defendants was deliberate.
39. The Plaintiffs claim punitive damages, on the basis that the conduct of the Defendants is malicious, oppressive, high-handed, egregious and offends decency.
Each of the plaintiffs therefore claims the following relief from each of the defendants:
a. General Damages in excess of $10,000,000.00, b. Aggravated damages, c. Exemplary damages, d. Punitive damages, e. Special damages including compensation for out of pocket and other expenses in such amounts as shall be proven at trial, f. Interest pursuant to the Pre-Judgment Interest Act, g. The costs of and incidental to this action on a solicitor-client basis, h. Such other and further relief as may hereafter be sought and as this Honourable Court may allow.
DATED at Saskatoon, Saskatchewan, May 14th, 2007, by both Plaintiffs.
Plaintiff: John David Lucas
Plaintiff: Johanna Erna Lucas
This Statement Of Claim was prepared by John David Lucas & Johanna Erna Lucas. The address for service of both Plaintiffs is; 6th Avenue North, Saskatoon, Saskatchewan S7K 2T4 Phone: (306) 653
I will be following the civil case, Q.B. No. 616, 2007, filed on May 14, 2007 in The Court of Queen’s Bench in Saskatoon by Plaintiffs JOHN DAVID LUCAS and JOHANNA ERNA LUCAS.
On May 16, two days after filing their claim the Plaintiffs received a letter from Kerry Scullion, Senior Counsel, Department of Justice Canada, Criminal Conviction Review Group.
The Plaintiffs made an application under section 696.1 of the Criminal Code in 2002 for a review of their conviction by Justice Hrabinsky of defaming Brian George Dueck in 1993. Its five years from the time of the application. Details and documents withheld by the Crown and Saskatoon Police Service have been entered into evidence in related cases from the time the application was made in 2002.
Brian George Dueck was found guilty in 2003 of maliciously prosecuting the Kvello and Richard Klassen family in Saskatoon’s second ritual child abuse case involving the Ross children. The Ross, Ross & White case was the first malicious prosecution by Saskatchewan Justice involving ritual child abuse, Brian Dueck and the Ross children. The R. v. R, R & W case was sealed by the Chief Justice of Saskatchewan on March 29, 1993.
Johanna and John Lucas delivered documents to Saskatchewan authorities about the Ross children who were in a Saskatchewan foster home. After receiving no help for the children they started picketing in downtown Saskatoon. They were arrested.
The R v. Lucas case in 1993 was the third malicious prosecution case involving Brian Dueck, Saskatchewan Justice and the Ross children.
In 2006 the Ross twins received a out of court settlement from the Government of Saskatchewan. The settlement amount was made public. The details and the backroom deals have been added to the growing list of Saskatchewan Government’s secret payoffs.
The least the Government of Canada can do is wait for the written decision in the KVELLO V. MIAZGA appeal. We have all been waiting for years for the Saskatchewan Court of Appeal to embarrasses themselves again. Saskatchewan Justice has deceived and used the judges of the Supreme Court of Canada in the past by presenting bogus cases in a failed attempt to cover-up judicial incompetence and corruption in Saskatchewan. The 1993 R. v Lucas case was one of the cases. The Government of Saskatchewan can not avoid the fallout from any written judgement in the KVELLO V. MIAZGA appeal. Will we have to wait until after the next provincial election?
Any investigation by the Department of Justice Canada should not be limited to the malicious prosecution of Johanna and John Lucas. What about the Ross children and the other victims of a failed, corrupted administration of justice in Saskatchewan. The Criminal Conviction Review Group investigates wrongful convictions. Do they have the authority to investigate a malicious prosecution by Saskatchewan Justice?
Provincial court judge Terry Bekolay
Does anyone remember the door knob judge? A Court of Queen’s Bench judge was headline news in Saskatchewan because he removed some doorknobs from the court house in Prince Albert. The talk within the legal community at the time was it had nothing to do with doorknobs, he was being persecuted because he would not “Tow the Line”.
The Terry Bekolay story is another example of the news media creating a story with the help of politicians. Reporters are claiming, I know what he did but I can’t tell you. Another example of junk journalism in Saskatchewan.
During the late 1980’s and early 90’s the news media in Saskatoon was reporting about the satanic ritual child abuse cases. “In July 1991, 16 individuals were arrested and charged with over 70 counts of sexual assault against eight foster children. Many of the children's allegations of sexual abuse were bizarre and revolting because they involved group and ritualistic sex with satanic overtones, the sexual abuse and killing of babies and animals, the ingestion of human flesh, feces, urine, blood and other horrible, perverted and incredible acts. The case was labeled by the media as the "Scandal of the Century".” Baynton Judgement - KVELLO V. MIAZGA - December 30, 2003
The Saskatchewan public was duped by the media into believing a scandal created by a hand full of religious idiots within Saskatchewan Justice and Social Services about sex with children. It has been said this could have only happened in Saskatchewan. This happened in other places, a scandal here and another in some other distant jurisdiction. Saskatchewan had three separate scandals on going at the same time. The news media outside Saskatchewan was asking. What is going on in Saskatchewan?
Years of political appointments in Saskatchewan has resulted in a elite family of incompetent people appointed to government. The intermarriages within this family over the years has resulted in a defective gene pool. This does not mean that every judge appointed to the bench in Saskatchewan is incompetent, it does explain why the judges not involved did nothing to stop these fools. A hand full of government employees were able to take control of the media, social services and the Saskatchewan courts.
What is hard to believe is that these fools kept a written record. Saskatchewan justice and social services set about educating the public and the courts about the satanic ritual abuse of children. Seminars funded by social services were attended by police officers, politicians, prosecutors and members of the public. This stupidly could have been stopped at this time with a good hard whack on the back of the head with a bible.
This group of delusional fools then needed some evidence. Dead babies, child victims and members of the satanic cult who were barbequing babies.
There was a case of child abuse being investigated by the Saskatoon police. One of three seriously dysfunction Fetal Alcohol Spectrum Disorder (FASD) children apprehended by Social Services. The three children had yet to be manipulated into being victims in the manufactured case against the 16 individuals who were arrested and charged with over 70 counts of sexual assault.
A special foster home was created by social services for child victims of ritual abuse. The children’s child therapist seeing a golden opportunity took charge of the police and prosecutors investigation. She directed the making of a documentary film about the ritual abuse of children at the Saskatoon Police station staring the Ross children.
Prosecutors were hand picked to prosecute, judges were selected to hear the cases. The child therapist with three days of training in art therapy was accepted as a expert witness for the Crown. The news media was busy searching with a helicopter for the “devils church” in Martensville and no one asked. Where are the parents of all the dead babies?
The original investigation by the Saskatoon police was ignored. One of the children’s parents beat the living crap out of the accused and broke his leg. Saskatchewan Justice?
Three people were found guilty after a trial. The public and press were banned by court order from the court room. The chief justice sealed the transcripts and judges order shortly after the trial. The appeal will go down in Saskatchewan history as a gross abuse of legal process after all the participants are dead and buried.
Johanna Lucas picketed in downtown Saskatoon after receiving no help for the children who were in extreme danger in the foster home. Johanna Lucas was jailed and no one helped the children. Two eight year old girls were left by Saskatchewan Justice and social services to be raped in the foster home for a total of four years.
Two judges were appointed to the Court of Queen’s Bench and took charge of any related cases and claims against the government of Saskatchewan. A law professor at the University of Saskatchewan stated publicly that Saskatchewan justice was out to bury the truth after one of the judges made an order that defied basic common sense.
Regina realised at that time they were no longer going to get away with what was obvious to everyone. Judicial cover-up by Saskatchewan Justice. A Crown prosecutor, a police officer and a child therapist would have to be sacrificed and were found guilty of malicious prosecution in 2003. The police officer did not appeal. Saskatchewan justice appealed on behalf of the prosecutor and child therapist. The public has been waiting for over two years for a decision from the Saskatchewan Court of Appeal in the KVELLO V. MIAZGA civil case. The cover-up continues and not one word from an elected politician or the news media.
The Ross children and most of the other victims of Saskatchewan’s culture of injustice received secret pay outs by the Government of Saskatchewan. Every day that passes without a decision from the Saskatchewan Court of Appeal places the administration of justice into further disrepute. There is nothing that confirms the belief that justice in Saskatchewan is corrupt then the continued silence from the Court of Appeal.
A investigation by the Federal Justice Department into the 1993 malicious prosecution by Saskatchewan Justice of Johanna Lucas was commenced in May, 2007. The federal justice department must investigate the satanic child abuse cases in Saskatchewan, what happened to the Ross children should never happen to another child in Canada.
The news media can create another scandal involving Terry Bekolay in 2007, or print the truth about the Ross children and the on going scandal they fabricated in the late 1980’s.
There can be no louder justification for an investigation by the federal justice department then the continued silence from the Saskatchewan Court of Appeal. The people have a right to hear the truth.
Crown attorneys may be sued following judge's ruling
Craig Pearson, CanWest News Service Published: Saturday, June 16, 2007
WINDSOR, Ont. -- Crown attorneys can be sued for negligence, and not just for the more difficult-to-prove allegation of acting in "bad faith," according to a Winnipeg judge's decision that could have significant implications for the Canadian justice system.
"We're delighted with the results," Windsor lawyer David Robins said Friday.
"It's a very serious allegation and the implications are far-reaching . . . Crown attorneys can, in fact, be sued for something other than bad faith."
Robins represents James Driskell, who was wrongly convicted of the 1990 murder of Perry Dean Harder in Winnipeg and ended up serving 13 years. The federal government overturned the decision in November 2005.
A provincial inquiry headed by Patrick LeSage, a former Ontario Superior Court chief justice, found that police and prosecutors withheld evidence, misled a jury and allowed a witness to commit perjury in a nine-day trial.
In February, Manitoba Attorney General Dave Chomiak apologized to Driskell and announced a good-faith payment of $250,000 from the province.
Driskell, and his mother Florence Driskell, have filed a lawsuit seeking $20 million in compensation.
Justice Shawn Greenberg of the Court of Queen's Bench in Manitoba has denied motions to strike down major sections of the plaintiffs' statement of claim, which names in total 21 defendants, including Manitoba's attorney general, police officers and Crown attorneys.
The defence argued Crown attorneys could not be sued for negligence, but Greenberg disagreed, clearing the way for Robins to proceed to trial on behalf of his clients.
"Based on the findings that came out of Justice LeSage's report, we think there's more than sufficient evidence to establish liability on behalf of all of the defendants," said Robins, who thinks this week's decisions shows prosecutors have a duty to release all evidence to the defence. "
Had been critical of Klassen, Kvello sex abuse case Betty Ann Adam, The StarPhoenix Published: Wednesday, January 30, 2008 A couple who protested a case that was eventually found to be a malicious prosecution continue to fight for their own exoneration and for accountability for police and justice officials.
A Queen's Bench justice last week granted John and Johanna Lucas leave to amend a statement of claim -- alleging a more recent conspiracy to commit malicious prosecution against them and a negligent police investigation.
Lucas said Tuesday he continues to make the same comments on websites that sparked contempt of court charges in 2003. Those charges were dropped and no one is challenging the content of the website, he said.
"We have not backed off one-quarter inch. . . . They started to look into the facts we were telling the truth, as simple as that," he said.
The Lucases are suing several Saskatoon police officers, Saskatchewan Crown prosecutors and a Queen's Bench justice, claiming they conspired to maliciously prosecute the couple.
The pair were early, vocal critics of the a sexual abuse case against Richard Klassen, Diane Kvello and members of their extended families.
The Klassen and Kvello families were exonerated in 2004, after a court found they were maliciously prosecuted on false allegations of sexually abusing three foster children.
The Lucases protested the prosecution in 1993 and were convicted of criminal defamatory libel for carrying placards and posting flyers commenting about the case when it was originally before the courts.
Defendants in the current Lucas suit, who had applied to have the case thrown out, did succeed to some degree, when Justice Allisen Rothery recently struck numerous allegations from the claim.
John Lucas said Tuesday he "absolutely" will amend the claim and continue with the suit against police officers and justice officials.
The Lucases were found guilty in 1995 of a rarely used criminal charge of defamatory libel for picketing in front of the courthouse and police station with placards. They also posted flyers commenting on the foster children sexual abuse case.
The couple appealed all the way to the Supreme Court of Canada, where the convictions were upheld in 1998.
John Lucas served an 18-month jail sentence and Johanna Lucas, a one-year term.
In September 2003, at the beginning of Klassen's malicious prosecution trial, the Lucases were charged with once again posting flyers commenting on the case. The contempt of court charges alleged the posters defamed Justice Paul Hrabinsky, retired Supt. Brian Dueck and lawyer Rod Donlevy.
By mid-2006 the four charges against each of the Lucases had been dropped: Two were withdrawn, one was outside the court's jurisdiction and one was stayed, Lucas said.
Lucas continues to make the same statements on his various websites, such as www.saskatchewanjustice.ca. He said no one takes issue with the statements anymore.
In the suit the couple allege conspiracy to commit malicious prosecution in relation to the 2003 charges.
They name as defendants Saskatoon police officers Joseph Faber, Kim Cridland and Dueck, the Saskatoon Board of Police commissioners, the Province of Saskatchewan, Murray Brown, Daryl Rayner, Donald Arthur McKillop, James Plemel, Charita Ohashi, Rod Donlevy, Hrabinsky, two unknown police officers and two unknown prosecutors.
JOSEPH FABER, KIM CRIDLAND, BRIAN GEORGE DUECK, SASKATOON BOARD OF POLICE COMMISSIONERS, UNKNOWN POLICE EMPLOYEE #1, UNKNOWN POLICE EMPLOYEE #2, PROVINCE OF SASKATCHEWAN, MURRAY BROWN, DARYL RAYNER, DONALD ARTHUR MCKILLOP, JAMES PLEMEL, CHARITA OHASHI, UNKNOWN CROWN PROSECUTOR #1, UNKNOWN CROWN PROSECUTOR #2, ROD DONLEVY, PAUL HRABINSKY DEFENDANTS
Counsel: John Lucas, Johanna Lucas for themselves
R. J. Gibbings, Q.C. for Joseph Faber, Kim Cridland and Saskatoon Board of Police Commissioners
D. J. Brown for Province of Saskatchewan, Murray Brown, Daryl Rayner, Donald McKillop, James Plemel, & Charita Ohashi
R. G. Kennedy, Q.C. for Rod Donlevy
R. W. Elson, Q.C. for Paul Hrabinsky
FIAT ROTHERY J. January 17, 2008
[1] All named defendants, other than Brian George Dueck, apply to have the plaintiffs' statement of claim struck on the basis that it shows no cause of action, and that it is frivolous, vexatious and an abuse of the court's process. As well, the defendants allege that the claim is statute barred against certain defendants.
[2] The plaintiffs commenced this action as a result of charges laid again John Lucas ("Lucas") and his wife, Johanna Lucas ("Mrs. Lucas"), by the Saskatoon City Police. The charges alleged that, between September 8, 2003 and September 15, 2003, by displaying certain posters, Lucas and Mrs. Lucas committed contempt of court, and defamed Justice Paul Hrabinsky, Brian Dueck, and Rod Donlevy. The Crown entered a stay of proceedings against Mrs. Lucas in October, 2003. The Crown later entered a stay of proceedings against Lucas in August, 2006. In May, 2007, the plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them.
The Claim Against the Saskatoon Board of Police Commissioners
[3] The plaintiffs sue the Saskatoon Board of Police Commissioners (the"Board") as the board administering police services in Saskatoon, Saskatchewan, and as the employer of the co-defendants, Joseph Faber, Kim Cridland and Brian Dueck. Counsel for the Board submits that the law is settled that no claim may be made against the Board on the basis that it is vicariously liable for the actions of its police officers.
[4] In the case of Klein et al v. Board of Police Commissioners of Regina et al. (1995), 130 Sask. R. 203 (Q.B.), Barclay J. considered that Board's application under Rule 173(a) of the Queen's Bench Rules to strike out the plaintiffs' actions against it for disclosing no cause of action. After reviewing the relevant case law, statutory authority, and the pronouncements of the Saskatchewan Court of Appeal in Burton v. Regina City Policemen's Association, Local No. 155, [1945] 2 W.W.R. 273, Barclay J. stated at para. 16 and 17:
[16] The Act states that the Board, and not the City is the employer of the members of the police service. Although the Act states that the Board is the employer for the purpose of The Trade Union Act and for the purposes of the Act, the case authorities which I have referred to hold that there is no master/servant relationship between the Board and the members of a police force and thus the Board is not responsible for the tortious acts of the members of the police service. The case law may have its origins from 50 years ago, however, that does not make the law incorrect. The Legislature had an opportunity to change the law when it amended the Act in 1990, however, no such change was made. As well, the Board's duties and responsibilities under the Act clearly show that it is not a body with sufficient control or supervision over individual police service members so as to make it vicariously responsible for the tortious acts of individual police service members.
[17] I therefore order in each of the above actions that the plaintiffs' claim against the Board and the City is struck for not disclosing a reasonable cause of action.
[5] It is clear that no action lies against the Board for the liability of its police officers. The plaintiffs' action against the Board is struck pursuant to Queen's Bench Rule 173(a) for disclosing no cause of action.
The Claim Against the Police Officers, Joseph Faber and Kim Cridland
[6] Paragraphs 7(a) - (o) of the Claim outline allegations against Joseph Faber ("Faber"), the investigating officer in the charges laid against the plaintiffs in 2003. To place these applications in proper context, it is imperative that the Statement of Claim, as presently drafted, be reproduced in part: CLAIM 1. The plaintiff John David Lucas resides in Macrorie, Saskatchewan. 2. The plaintiff Johanna Erna Lucas resides in Macrorie, Saskatchewan. 3. The plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, are husband and wife and at times material hereto, were engaged in trying to clear their names by attempting to obtain a review of a section 300 conviction that was entered against both the Plaintiffs and upheld by the Supreme Court of Canada. 4. On September 15th, 2003, Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, were arrested and incarcerated by the Saskatoon City Police, in the City of Saskatoon, Saskatchewan. 5. On September 16th, 2003, Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, were charged with the following identical Criminal Code Offences, that were contained on INFORMATION #44911275 and Occurrence(s): 95410-03; a. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did commit a contempt of court by causing posters to be displayed which were contemptuous of Justice Paul Hrabinsky, a Judge of the Court of Queen's Bench of Saskatchewan, contrary to the law. b. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Justice Paul Hrabinsky, by exposing him to hatred, contempt or ridicule, or that was designed to insult Justice Paul Hrabinsky, knowing that the matter was false and did thereby commit an offence, contrary section 300 of the Criminal Code. c. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003 at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Superintendent Brian Dueck, a peace officer, by exposing him to hatred, contempt or ridicule, or that was designed to insult Superintendent Brian Dueck, knowing that the matter was false and did thereby commit an offence, contrary to section 300 of the Criminal Code. d. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Rod Donlevy, by exposing him to hatred, contempt or ridicule, or that was designed to insult Rod Donlevy, knowing that the matter was false and did thereby commit an offence, contrary to section 300 of the Criminal Code.
6. In this Statement of Claim, where the Plaintiffs plead "the Defendants" they refer to all the Defendants, or one or more of the Defendants.
7. At all material times the Defendant Joseph Faber, a. resided in or near Saskatoon, and b. was employed as a police officer by the Saskatoon Board of Police Commissioners, and c. was responsible for the investigation of various allegations of defamatory libel and contempt of court, that one or more persons made, involving both Plaintiffs, and d. interviewed the Plaintiffs, and talked with the Plaintiffs on numerous occasions and was thoroughly familiar with the said allegations, and e. stored the material that he seized from the Plaintiffs' residence and car on September 15th, 2003, in the temporarily vacated office of his friend and colleague, Defendant Brian George Dueck, who was in the midst of a civil proceeding, that was related to some or all of the allegations, contained within paragraphs 3, 4, and 5, according to Defendant Joseph Faber's, notes and testimony, and f. failed to use the material seized form the Plaintiffs' home on September 15th, 2003, to determine whether or not the allegations of defamatory libel and contempt of court, were either true or false. g. claimed that his investigation related to the matters dealt with by the Supreme Court decision and the civil proceeding, that his friend and colleague Defendant Brian George Dueck, was involved in, that were mentioned in paragraphs 3, 4, and 5, and h. failed to act on or report, that the evidence he seized from the Plaintiffs on September 15th, 2003, showed that Defendant Brian George Dueck, had committed perjury in a case that was closely related and mentioned in paragraph 3, and directly related to some of the allegations contained within paragraph 5, and i. failed to act on or report, that the evidence he seized from the Plaintiffs on September 15th, 2003, showed that the Defendant Brian George Dueck, had knowingly failed in his duty, when he allowed two child witnesses to be raped and sodomized over a 43 month period, between May 29th, 1990 and January, 1994 and, j. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing of the Defendants and other persons, and k. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs, and l. knowingly conspired with the Defendants and other persons, in order to avoid making full disclosure to the Plaintiffs, and m. while under oath, knowingly misrepresented his true knowledge about the matters contained in paragraphs 3, 4, and 5, and n. knowingly tried to mislead a senior prosecutor, with a manufactured story that the Plaintiff John David Lucas, had made a threatening call to a court worker, regarding Mr. Justice Hrabinsky, and o. knowingly tried to undermine the relationship that the Plaintiffs had with one another, by making false statements to Plaintiff Johanna Erna Lucas.
[7] As it can be best understood, the pleadings in paragraph 7(a) - (f) allege the tort of negligent investigation against Faber. The Supreme Court of Canada recently articulated this tort in Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41. At para. 3 of the decision, McLachlin C.J. states:
[3] I conclude that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant's action on this basis. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.
[8] Counsel for Faber submits that Faber had reasonable and probable grounds to believe the plaintiffs had committed the charges under s. 300 of the Criminal Code because the posters they displayed in public were obviously defamatory. For the court to strike paragraphs 7(a) - (f), it requires that a finding of fact be made, that is, that the posters displayed by the plaintiffs could cause Faber to have reasonable and probable grounds to believe that the plaintiffs had committed the crime of defamation. In a Queen's Bench Rule 173(a) application to strike the claim on the basis that it discloses no cause of action, the court must assess the pleadings on the basis that all facts in the statement of claim can be proved. The court cannot assess the veracity of the pleadings.
[9] This standard for striking out the pleadings has been reiterated by the Saskatchewan Court of Appeal in Milgaard v. Saskatchewan, [1994] S.J. No. 439. At para. 15 and 16, Sherstobitoff J.A. states: 15 Rule 173 and equivalent rules in other jurisdictions have been considered by this Court and the Supreme Court in a number of recent judgments: Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1970] 2 S.C.R. 735; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Sagon v. Royal Bank of Canada (1993), 105 Sask. R. 133.
16 The most authoritative and relevant statement of the standard to apply in these cases is in Hunt v. Carey where Wilson J. said, referring to British Columbia and Ontario rules almost identical to Rule 173, at p. 981:
Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be driven from the judgment seat'. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).
The question therefore to which we must now turn in this appeal is whether it is plain and obvious 'that the plaintiff's claims in the tort of conspiracy disclose no reasonable cause of action or whether the plaintiff has presented a case that is fit to be tried', even although it may call for a complex or novel application of the tort of conspiracy.
[10] Thus, on its face, the allegations against Faber for negligent investigation may well constitute a reasonable cause of action. However, in its present form, the pleadings are deficient. It neither alleges that Faber owed the plaintiffs a duty of care, nor does it state the material facts that give rise to a breach of the standard of reasonableness imposed upon a police officer.
[11] Paragraphs 7(g) - (i) are more easily resolved. These pleadings purport to re-litigate a criminal prosecution against the plaintiffs, ultimately upheld by the Supreme Court of Canada against them. (See: R. v. Lucas, [1998] 1 S.C.R. 439). Pursuant to Queen's Bench Rule 173(e), this constitutes an abuse of the court's process, and must be struck. Furthermore, paragraphs 7(m) - (o) do not disclose a cause of action, and must be struck.
[12] Paragraph 7(l) alleges conspiracy "to avoid making full disclosure to the plaintiffs." The tort of conspiracy to injure a plaintiff by agreement to not disclose certain information was addressed by the Saskatchewan Court of Appeal in Milgaard, supra, at para. 18:
[18] As against the prosecutors, two separate torts are named and fairly clearly defined. The first is negligent breach of the prosecutors' duty, as now defined by R. v. Stinchcombe, [1991] 3 S.C.R. 326, to disclose to Mr. Milgaard the information regarding Fisher which came to light in October 1970, before the appeals from conviction had been heard or determined by this Court or the Supreme Court. The second is conspiracy by the prosecutors with each other and with the police to injure Mr. Milgaard by agreement not to disclose the Fisher information ...
[13] The plaintiffs have not pleaded the basis for alleging conspiracy to agree to not provide full disclosure in this action stemming from the September, 2003, charges laid against them. Any failure to disclose information has not resulted in any conviction. Oppositely, the charges were stayed against the plaintiffs. An essential element of that tort is missing, and paragraph 7(1) of the claim must be struck for disclosing no cause of action.
[14] It seems that the plaintiffs allege that a conspiracy continues against them as a result of the convictions against them for defamations committed in 1993. At para. 35 of the statement of claim the plaintiffs state: The Defendants and other persons, took some or all of the above actions for illegal, wrongful and improper purposes. For a period of almost 14 years, the Defendants and other persons, have unlawfully withheld the disclosure that would have proven the allegations made by Plaintiff John David Lucas, between September 8th & 15th, 2003...
[15] To the extent that the plaintiffs allege conspiracy against Faber, and against the other defendants, for failure to disclose information based on the convictions against them, as upheld by the Supreme Court of Canada in R. v. Lucas, [1998] 1 S.C.R. 439, that portion of the claim must be struck. Such an allegation is not only scandalous, frivolous and vexatious, as contemplated by Queen's Bench Rule 173(c), it is also an abuse of the process of the court, as provided by Rule 173(e).
[16] The allegation stated in paragraph 7(k) is that Faber "knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs." This allegation may well become the basis of a cause of action, but it is deficient in its form as pleaded.
[17] For an allegation of conspiracy to be properly pleaded, certain facts must be alleged. In Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. [1983] 1 S.C.R. 452, Estey J. stated at para. 33 - 34:
Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,
(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.
In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.
[18] In Activators Methods Inc. v. Chiropractors Assn. (Saskatchewan) (1992), 107 Sask. R. 90 (Q.B.), Gunn J. referred to the statement of the law outlined in Canada Cement, supra, and in point form, at para. 19 - 21, summarized the requirements for the tort of conspiracy to meet the test of disclosing a cause of action.
[19] Furthermore, Queen's Bench Rule 149 requires that full particulars of the conspiracy must be stated in the claim. (See: Tamarack Energy Inc. v. IPSCO Inc. (1999), 185 Sask. R. 161 (Q.B.). Particulars are absent in this claim, as it is presently pleaded.
[20] In this case, the underlying tort to the conspiracy allegation seems to be malicious prosecution. As stated in Nelles v. Ontario (1989) 60 D.L.R. (4th) 609 (S.C.C.) at page 615, McIntryre J. reviewed the components of the tort of malicious prosecution in this way: There are four necessary elements which must be proved for success in an action for malicious prosecution:
A. The proceedings must have been initiated by the defendant;
B. The proceedings must have terminated in favour of the plaintiff;
C. The plaintiff must show that the proceedings were instituted without reasonable cause, and
D. The defendant was actuated by malice.
[21] At para. 7(k) of the Statement of Claim, the plaintiffs have merely alleged that Faber has conspired to maliciously prosecute them. In its present form, the underlying tort of malicious prosecution is deficient. I will outline later in this decision whether, and what, remedy is available to the plaintiffs.
[22] The claim against Kim Cridland ("Cridland") is reproduced as follows:
8. At all material times the Defendant Kim Cridland, a. resided in or near Saskatoon, and b. was employed as a police officer by the Saskatoon Board of Police Commissioners, and c. had access to the material seized by Sergeant Faber, from the Plaintiffs' car and residence, on September 15th, 2003, and d. could not have lawfully concluded that she had reasonable and probable grounds and did believe, the allegations contained in INFORMATION # 44911275, on September 16th, 2003, and e. signed INFORMATION #44911275, before the person in charge of the investigation, had interviewed either of the Plaintiffs, and f. failed to interview either Plaintiff, and g. knowingly abused the process of law by signing INFORMATION #44911275, on September 16, 2003, with a malicious intent.
[23] As it can be best gleaned from the pleadings, this seems to be an action against Cridland for abuse of process. As stated in Benthan v. Rothbart, [1988] O.J. No. 392 (Ont. S.C.) at para. 6, the claim of abuse of process involves the following elements: The most recent clear exposition is found in Beckingham and Doyle v. Sparrow; Sparrow v. Beckingham et al (1977) 2 C.C.L.T. 214, a decision of Mr. Justice Grange. He reviews Fleming on The Law of Torts, 4th ed. (1971) pp. 547 to 548, and Grainger v. Hill (1838), 4 Bing (N.C.) 212, 132 E.R. 769 and notes that both of these authorities were approved by Parker J. (as he then was) in Atland Containers Ltd. v. Macs Corpn. Ltd. (1974), 7 O.R. (2d) 107, and 17 C.P.R. (2d) 16. The essence of all those authorities is stated by Fleming as follows:
"The essential elements of abuse of process are: first, a collateral and improper purpose, such as extortion, and secondly, a definite act or threat, in furtherance of a purpose not legitimate in the use of the process. Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions."
And see: Kish v. Chapple, [1999] S.J. No. 186 (Q.B.)at para. 7.
[24] There are no particulars alleging what Cridland did that was improper. Signing an Information and failing to interview the plaintiffs are not, in and of themselves, an abuse of process. The action against Cridland in paragraph 8 of the Statement of Claim is hereby dismissed.
The Claim Against the Prosecutors, Murray Brown, Daryl Rayner, Donald Arthur McKillop, James Plemel and Charita Ohashi
[25] The claim against each of the five prosecutors named as defendants is basically the same, other than minor differences pertaining to each prosecutor's position of employment. Reproduced is the claim against the first named prosecutor, Murray Brown: 12. At all material times the Defendant Murray Brown, a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was the Executive Director of Public Prosecutions for the Province of Saskatchewan, or acting as counsel for the estate of Richard Quinney, in Q.B. 271 (1994) Judicial Centre of Saskatoon, and d. was fully conversant with every aspect of both Plaintiffs arrest, detention and attempted prosecution, and e. had possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and g. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and, h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs, and i. knowingly conspired with the Defendants and other persons, in order to avoid make a full disclosure to the Plaintiffs.
[26] Paragraphs 13 - 16 of the statement of claim repeat these allegations against the other four prosecutor defendants.
[27] In essence, the plaintiffs claim abuse of process, conspiracy to withhold disclosure, and conspiracy to maliciously prosecute the plaintiffs. Given my reasons outlined above, the tort of conspiracy to withhold disclosure is not available to the plaintiffs and it must be struck as against all the prosecutor defendants. The allegation of abuse of process is no more than an assertion; it is devoid of the essential elements of the tort. Thus, the claim of abuse of process must be struck as against all the prosecutor defendants.
[28] The claim of conspiracy to maliciously prosecute may have some legal footing as a potential cause of action. In considering the plaintiffs' action against Faber, I have outlined the material facts that must be alleged for the tort of conspiracy to commit malicious prosecution to disclose a reasonable cause of action. Those observations are equally applicable as against the prosecutor defendants. In its present form, the pleadings against the five prosecutors are deficient.
The Claim Against the Province of Saskatchewan
[29] The plaintiffs allege that the Province of Saskatchewan is vicariously liable for the acts of its co-defendant prosecutors. The pleadings state:
11. At all material times the Defendant Province of Saskatchewan (or in the alternative the Minister of Justice for the Province of Saskatchewan), a. was the employer of Defendants Murray Brown, Daryl Rayner, Donald Arthur McKillop, James Plemel, Charita Ohaashi,(sic) unknown Crown Prosecutor #1, unknown Crown Prosecutor #2, and b. was responsible to supervise these Individuals (sic) actions as they related to their contract with or employment by the Province of Saskatchewan and negligently failed to properly supervise the actions of these individuals, or in the alternative, was vicariously responsible for the actions of these individuals, and c. in the unique position of having some knowledge regarding the actions taken by those they employed in this matter, and d. owed a duty of care to the Plaintiffs, because of the information that was in their possession.
[30] Although The Proceedings Against the Crown Act, R.S.S. 1978, c.P-27 provides immunity to the Province for the acts of its prosecutors in torts such as malicious prosecution, the tort of conspiracy may not provide the same immunity. (See: Popowich v. Saskatchewan [2001] SKQB 148 at, para. 51 - 56.) It would be more appropriate to allow the claim against the Province at this stage, and permit it to defend on the basis of Crown immunity.
The Limitation Period Under The Public Officers' Protection Act
[31] Counsel for the police officers and for the prosecutor defendants both raised the limitation period under The Public Officers' Protection Act, R.S.S. 1978, c.P-40 ("POPA") as justification to strike the pleadings. It must be first noted that, although the POPA has been repealed by The Limitations Act, S.S. 2004, c.L-16.1, effective May 1, 2005, the POPA remains the applicable limitation period in this case, except for, possibly, Lucas' claim against the prosecutor defendants. (See: Johnston v. Fraser, [2006] SKQB 349 at para 33-34; Clysdale et al. v. Canada (2006), 288 Sask. R. 123 (Q.B.) at para. 19 - 21).
[32] Counsel for the defendants argue that my decision in Whatcott v. Prince Albert Police Commissioners, 2005 SKQB 160 stands for the proposition that the court may exercise the discretion under s. 2(1)(b) of the POPA to strike pleadings in a Rule 173(a) application. In paragraphs 13 - 16 and 21 - 23 of Whatcott, supra, I stated: 13 Whatcott's applications to add the police officers as defendants and to amend his claim to add the tort of conspiracy and a breach of s. 2 of the Charter require more analysis. Section 30 of The Queen's Bench Act, 1998 provides for amendments to pleadings and adding parties. Rule 165 pertains to amending pleadings, and Rule 37(2) pertains to adding defendants.
14 Section 30 of The Queen's Bench Act, 1998 states: Notwithstanding the expiry of a limitation period after the commencement of an action, a judge may allow an amendment to the pleadings that asserts a new claim or adds or substitutes parties, if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment.
15 The threshold question for the court to exercise its discretion in considering an amendment or adding parties to the action is determining the limitation period. As stated in Kowbel (Litigation guardian of) v. Hladyboroda [1995] S.J. No. 216 (C.A.), in considering the similarly worded s. 44(11) of The Queen's Bench Act, R.S.S. 1978, c.Q-1, Tallis J.A. interpreted s. 44(11) to mean that if the limitation period expired prior to the commencement of the action, it follows that no parties can be added under s. 44(11).
16 In this action, the limitation period is found in The Public Officers' Protection Act, R.S.S. 1978, c.P-40 ("POPA"). Section 2 (1) of the POPA states: No action, prosecution or other proceedings shall lie or be instituted against any person for an act done in pursuance or execution or intended execution of a statute, or of a public duty or authority, or in respect of an alleged neglect or default in the execution of a statute, public duty or authority, unless it is commenced: (a) within twelve months next after the act, neglect or default complained of or, in case of continuance of injury or damage, within twelve months after it ceases; or (b) within such further time as the court or a judge may allow.
...
21 I am mindful of the public policy considerations in exercising my discretion under s. 2(1)(b) of the POPA to extend the limitation period set out by s. 2(1)(a) of the POPA. In F.P. v. Saskatchewan, 2004 SKCA 59, Cameron J.A. referred to s. 2(1) of the POPA as a special limitation period for public authorities and stated its purpose at para. 14:
14 The purpose of this type of "special limitation period" for public authorities was articulated by Binnie J., speaking for the majority in Des Champs v. Conseil des Tcoles sTparTes catholiques de langue frantaise de Prescott-Russell, [1999] 3 S.C.R. 281 at 286:
[1] Many if not most public authorities in this country are shielded from litigants to some extent by special statutory limitation periods. The public policy underlying these limitations is that public authorities ought not to be unduly prejudiced by the passage of time. Timely notice will promote the timely investigation and disposition of claims in the public interest. After the expiry of a limitation period, the public authority can consider itself free of the threat of legal action, and need not preserve or seek out pertinent evidence. Its fiscal planning can proceed free of the disrupting effect of unresolved claims against the public purse.
Also see Mota et al v. Regional Municipality of Hamilton-Wentworth Police Services Board et al (2003), 225 D.L.R. (4th) 295 at para. [5].
22 Finally, in exercising any discretion to extend the limitation period, I am guided by Popowich, supra, at para. 39, wherein Gerein C.J. states:
... The main factors which I must take into account are whether the plaintiff has demonstrated a prima facie case; whether there is an adequate explanation for the delay; and whether the defendants will suffer prejudice.
23 Whatcott's applications can now be considered within this legal framework. As I stated previously, Whatcott claims for damages arising from incidents between June, 2001 and August, 2003. Two of the four incidents require a consideration of a time extension under s. 2(1)(b) of the POPA before further determination under s. 30 of The Queen's Bench Act as to the addition of certain defendants. (Emphasis added)
[33] The ratio decidendi in Whatcott is that the POPA limitation period must be considered by the Court in an application under s. 30 of The Queen's Bench Act, 1998 in the exercise of its discretion for allowing either an amendment or adding parties to an action. Oppositely, in actions where it is alleged that the acts of the defendants were not done in the execution of a public duty or authority, such as alleged by the plaintiffs in this action, the limitation period under the POPA cannot be used to strike a claim. It must be pleaded as a defence to the action.
[34] This principle was outlined by the Saskatchewan Court of Appeal in Pask v. McDonald et al. (No. 2) [1978] 3 W.W.R. 298 at pages 300 - 301: Having found that the respondents were "persons" within the meaning of s. 2(1), Geatros, D.C.J. should have proceeded to determine, if possible, whether the acts complained of were done in the execution of a public duty or authority. In doing so he should have taken as admitted, for the purpose of the motion, all of the facts alleged in the statement of claim: see Imperial Life Insurance Co. of Canada vs. Louis Audette, [1912] 1 W.W.R. 819, 5 D.L.R. 355 and Findlay vs. Rose, 46 Man. R. 25, [1938] 1 W.W.R. 814, [1938] 2 D.L.R. 334 (C.A.).
The nub of the appellant's claim is that the respondents used their public office to promote their private interests. In that event the respondents would not be entitled to the protection of the Act. In Stalker v. Township of Dunwich et al, (1888) 15 O.R. 342, Armour, C.J., stated at page 344:
"But where a person who is a pathmaster and, professing to act as such, uses his position as such to promote his private interest, making his private interest paramount and his public duty subservient to his private interest, subjecting his public duty to his private interest and making the promotion of his private interest the primary object of his action, he cannot be said in such case to be performing a public duty, and he thereby disentitles himself to the protection of the Act, and may be proceeded against for any act so done by him as if he were a private individual: Neill v. McMillan, (1886), 25 U.C.Q.B..485 (C.A.)"
If the appellant's claim is established the respondents would not be in the same position as the defendant, Potoski, was in Durston v. Potoski and Dauphin (R.M.) supra, who, although he had acted contrary to statute, was acknowledged to have acted "in good faith and in the intended execution of what he conceived to be a public duty."
Portions of the amended statement of defence may be summarized as alleging that the controverted election proceedings were in substance an action against the town and against the respondents in name only; that the town was properly responsible for the accounts paid; and that in passing the impugned resolution the respondents acted in good faith and in the intended execution of what they conceived to be their public duty. It may be that the proof of these allegations will entitle the respondents to the protection of the Act. Whether or not they are proven can only be decided at the trial. [Emphasis added]
[35] This principle has been applied by our court in recent causes of action alleging malicious prosecution and conspiracy, where the defendants have sought to strike pleadings against them. See: Haug v. Saskatchewan Corrections and Public Safety (2005), 266 Sask. R. 1 (Q.B.) at para. 37 - 39. And see: Dagenais v. Dagenais, 2007 SKQB 50 at para. 16 - 18.
[36] In summary, the limitation periods under the POPA may not be used to strike pleadings alleging conspiracy to malicious prosecution in a Rule 173(a) application. Limitation periods must be raised by way of defence. Furthermore, it is unnecessary to make any findings on the applicable legislation required to plead a limitation period as a defence at this stage of the proceedings.
The Claim Against Ron Donlevy
[37] Paragraph 17 of the claim states: 17. At all material times the Defendant Rod Donlevy, a. resided in or near Saskatoon, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and
d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had access to the same material held by Defendant Donald Arthur McKillop, and f. owed a duty of care to the Plaintiffs, because of the information that was in the Defendant's possession, and g. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and h. knowingly conspired with the Defendants and others, in order to maliciously prosecute the Plaintiffs, and i. knowingly conspired with the Defendants and others, in order to avoid making a full disclosure to the Plaintiffs.
[38] The claim against Rod Donlevy ("Donlevy") mirrors the claim made against the prosecutor defendants. For the reasons stated previously, the only claim that survives this application is the claim for conspiring to maliciously prosecute the plaintiffs.
The Claim Against Paul Hrabinsky
[39] The plaintiffs plead the following allegations against Justice Paul Hrabinsky: 18. At all times the Defendant Paul Hrabinsky, a. resided in or near Saskatoon, and b. was a Judge of the Court of Queen's Bench, of Saskatchewan, and, c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and
e. owned a duty of care to the Plaintiffs, because of the information that was in the Defendant's possession, and f. knowingly abused the process of law, in order to stop the Plaintiffs from exposing the wrongdoing, of the Defendants, and g. knowingly conspired with the Defendants and other persons, to maliciously prosecute the Plaintiffs, and h. knowingly conspired with the Defendants and other persons, in order to avoid making a full disclosure to the Plaintiffs, and i. knowingly obstructed justice, when he failed to report Defendant Brian George Dueck, for committing perjury in his court, and j. knowingly made false allegations about the Plaintiff John David Lucas, to Mr. Justice Malone, on April 17th, 2002, k. failed to report the incident directly above to his described Chief Justice, when he learned that his friend and colleague, Mr. Justice Malone, had been selected by said Chief Justice, to act in the jury trial, regarding the allegations contained in paragraph 5, and l. failed to deal with the Judicial Council of Canada, Saskatchewan Justice, or his own Chief Justice, in an honest manner, and m. tried to avoid testifying at the trial that was scheduled for the Plaintiff John David Lucas, regarding the allegations, contained in paragraph 5.
[40] The plaintiffs admit that Justice Paul Hrabinsky was the presiding judge in the criminal case where they were convicted of an offence contrary to s. 300 of the Criminal Code, and was the presiding judge who sentenced them on the convictions on April 13, 1995. This is the criminal case that was upheld by the Supreme Court of Canada in R. v. Lucas, [1998] 1 S.C.R. 439, which I referred to earlier.
[41] Counsel for Justice Hrabinsky brings an application to strike the action against Justice Hrabinsky on the basis of judicial immunity, and pursuant to Queen's Bench Rule 173. As stated in Morier v. Rivard, [1985] 2 S.C.R. 716 at pages 745 - 746: It is important to avoid litigation or to terminate it as quickly as possible when it cannot succeed in law. This is provided in the Code of Civil Procedure. It is also the way litigation is disposed of in many other jurisdictions, by means of a motion or application to strike out the statement of claim.
This is precisely what was involved in Sirros v. Moore, supra, where the English Court of Appeal allowed the application to strike out and Lord Denning wrote in the passage cited above: "Actions based on such allegations have been struck out and will continue to be struck out".
[42] The Supreme Court of Canada, in Morier v. Rivard, supra, outlined the extent of judicial immunity to civil liability, and adopted the English law on this issue. At pages 739 - 740, Chouinard J. stated: The Court of Appeal relied on Sirros v. Moore, [1975] 1 Q.B. 118, a decision of the United Kingdom Court of Appeal which has been frequently cited, both by the courts and in scholarly analysis, as the correct statement of the contemporary rule of immunity. The most often cited passage is the following, from Lord Denning M.R. at p. 136:
In this new age I would take my stand on this: as a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land - from the highest to the lowest - should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure "that they may be free in thought and independent in judgment," it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: "If I do this, shall I be liable in damages?" So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction - in fact or in law - but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.
[43] Applying the law of judicial immunity to these pleadings, I have no hesitation in striking sub-paragraphs 18 (f), (i), (j), (k), and (l) of the claim. The allegations refer to acts Justice Hrabinsky may or may not have committed while he was acting in his judicial capacity. Furthermore, how Justice Hrabinsky conducted himself with the Chief Justice of his court or with the Canadian Judicial Council is no basis for any cause of action by these plaintiffs.
[44] Sub-paragraph 18 (m) must also be struck for disclosing no cause of action. Sub-paragraph 18(h) pertains to the claim of conspiracy for failure to disclose, which I have already ruled discloses no cause of action.
[45] That leaves sub-paragraph 18(g), being the allegation that Justice Hrabinsky conspired with the other defendants to maliciously prosecute the plaintiffs. It is not clear, based on this simple assertion, whether the plaintiffs allege some act on Justice Hrabinsky's part that is actually shrouded by judicial immunity or whether it is some act that is outside the scope of that immunity. In its present form, the claim of conspiracy to maliciously prosecute is in peril of being struck for disclosing no cause of action.
The Remainder of the Claim
[46] Counsel for all defendants have applied to strike the pleadings on the basis that they are embarrassing, as defined by Queen's Bench Rule 173(d). This rule allows pleadings to be struck if they embarrass the fair trial of an action. The application of Rule 173(d) was addressed by the Saskatchewan Court of Appeal in Meyers v. Freeholders Oil Co. (1956), 19 W.W.R. 546 at p. 549: The term "embarrassing" has been defined many times and in London (Mayor) v. Horner (1914) 3 LTR 512, at 514, 78 JP 229, Pickford, L.J. stated as follows: "I take 'embarrassing' to mean that the allegations are so irrelevant that to allow them to stand would involve useless expenses and would also prejudice the trial of the action by involving the parties in a dispute that is wholly apart from the issues."
[47] It is not necessary to recite the remainder of the plaintiffs' statement of claim. Needless to say, the contents of those paragraphs are so irrelevant to this action for conspiracy to commit malicious prosecution, they must be struck. Paragraphs 19, and 22 to 37 inclusive, fall into this category.
The Exercise of the Court's Discretion
[48] Queen's Bench Rule 173 allows that pleadings may be struck out, with or without leave to amend them. The discretion to grant leave to amend was applied in PichT v. Big "C" First Nation (1994), 121 Sask. R. 20 (Q.B.). Our Court recognizes that litigants who represent themselves may have even more difficulty in pleading the material facts to lay the foundation for a cause of action. As stated in Downey v. Royal Canadian Mounted Police, 2002 SKQB 20, at para. 21: 21 The plaintiff is a self-represented litigant and it is understandable that her pleadings do not conform to the standard normally seen in litigious matters. Nevertheless, the substance of the plaintiff's allegations must raise a justiciable claim against the defendant even if that claim is not expressed with the usual measure of precision or clarity.
[49] The action framed by the plaintiffs for conspiracy to maliciously prosecute may, if properly amended, provide the basis for a reasonable cause of action against the defendants. They ought to be given the opportunity to "raise a justiciable claim" against the defendants. It is appropriate to grant the plaintiffs leave to amend their claim accordingly.
[50] That being said, the defendants may pursue their applications to dismiss the action for abuse of the court process should any amendments amount to no more than a collateral attack on matters already decided by the court. The issue of prohibiting the plaintiffs from commencing any further actions without prior leave of the court must also be adjourned pending the plaintiffs' amendments to their claim.
The Outstanding Order of Costs Against Johanna Lucas
[51] Some time after Lucas and Mrs. Lucas were convicted of libel in 1993, and that conviction was upheld by the Supreme Court of Canada, Lucas sued numerous police officers, prosecutors, and others alleging conspiracy to maliciously prosecute him. That action was dismissed. See: Lucas v. Dueck, 2002 SKQB 1.
[52] Then, Mrs. Lucas commenced the same action against many of the same defendants. That action was struck for the same reasons. See: Johanna Erna Lucas v. Dueck et al, Q.B. No. 31 of 2001, oral decision of Kyle J. The presiding judge ordered that Mrs. Lucas pay the costs of seventeen defendants represented in the application to strike the action, in the sum of $200 each. The presiding judge further ordered that these costs must "be payable before any other actions are commenced in this court by Mrs. Lucas."
[53] Affidavit evidence has been filed that Rod Donlevy's costs have not been paid, nor have the costs awarded to Donald McKillop been paid. Rather than dismiss Mrs. Lucas' action, it would be appropriate to stay her action against Rod Donlevy and Donald McKillop until the costs ordered by Kyle J. have been paid.
The Statement of Claim in its Present Form
[54] As a result of the rulings made, the plaintiffs' statement of claim is struck, in part. The pleadings now are as follows:
1. The plaintiff John David Lucas resides in Macrorie, Saskatchewan. 2. The plaintiff Johanna Erna Lucas resides in Macrorie, Saskatchewan. 3. The plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, are husband and wife and at times material hereto, were engaged in trying to clear their names by attempting to obtain a review of a section 300 conviction that was entered against both the Plaintiffs and upheld by the Supreme Court of Canada.
4. On September 15th, 2003, Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, were arrested and incarcerated by the Saskatoon City Police, in the City of Saskatoon, Saskatchewan. 5. On September 16th, 2003, Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, were charged with the following identical Criminal Code Offences, that were contained on INFORMATION #44911275 and Occurrence(s): 95410-03; a. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did commit a contempt of court by causing posters to be displayed which were contemptuous of Justice Paul Hrabinsky, a Judge of the Court of Queen's Bench of Saskatchewan, contrary to the law. b. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Justice Paul Hrabinsky, by exposing him to hatred, contempt or ridicule, or that was designed to insult Justice Paul Hrabinsky, knowing that the matter was false and did thereby commit an offence, contrary section 300 of the Criminal Code. c. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003 at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Superintendent Brian Dueck, a peace officer, by exposing him to hatred, contempt or ridicule, or that was designed to insult Superintendent Brian Dueck, knowing that the matter was false and did thereby commit an offence, contrary to section 300 of the Criminal Code. d. Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003, at or near Saskatoon, Saskatchewan, did publish matter without lawful justification or excuse that was likely to injure the reputation of Rod Donlevy, by exposing him to hatred, contempt or ridicule, or that was designed to insult Rod Donlevy, knowing that the matter was false and did thereby commit an offence, contrary to section 300 of the Criminal Code.
6. In this Statement of Claim, where the Plaintiffs plead "the Defendants" they refer to all the Defendants, or one or more of the Defendants.
7. At all material times the Defendant Joseph Faber, a. resided in or near Saskatoon, and
b. was employed as a police officer by the Saskatoon Board of Police Commissioners, and c. was responsible for the investigation of various allegations of defamatory libel and contempt of court, that one or more persons made, involving both Plaintiffs, and d. interviewed the Plaintiffs, and talked with the Plaintiffs on numerous occasions and was thoroughly familiar with the said allegations, and e. stored the material that he seized from the Plaintiffs' residence and car on September 15th, 2003, in the temporarily vacated office of his friend and colleague, Defendant Brian George Dueck, who was in the midst of a civil proceeding, that was related to some or all of the allegations, contained within paragraphs 3, 4, and 5, according to Defendant Joseph Faber's, notes and testimony, and f. failed to use the material seized form the Plaintiffs' home on September 15th, 2003, to determine whether or not the allegations of defamatory libel and contempt of court, were either true or false. k. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs.
9. At all material times the Defendant Brian George Dueck, a. resided in or near Saskatoon, and b. was employed as a police officer by the Saskatoon Board of Police Commissioners, and c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and d. conspired with the Defendants and other persons, to have the plaintiffs maliciously charged, in order to cover-up the fact that he had knowingly failed in his duty, when he allowed two child witnesses to be raped and sodomized over a 43 month period, between May 29th, 1990 and January, 1994, and e. conspired with the Defendants and other persons, in order to avoid prosecution for the untruthful testimony he had given at the time mentioned in paragraph 3 and or other proceedings, that directly or indirectly, related to the Plaintiffs, or involved both Plaintiffs, and f. conspired with the Defendants and others, in order to stop the lawful review of a section 300 conviction, that was entered against both the Plaintiffs, and g. knowingly abused the process of law in order to stop the Plaintiffs from exposing his own wrongdoing.
11. At all material times the Defendant Province of Saskatchewan (or in the alternative the Minister of Justice for the province of Saskatchewan), a. was the employer of Defendants Murray Brown, Daryl Rayner, Donald Arthur McKillop, James Plemel, Charita Ohaashi, unknown Crown Prosecutor #1, unknown Crown Prosecutor #2, and b. was responsible to supervise these Individuals actions as they related to their contract or employment by the Province of Saskatchewan and negligently failed to properly supervise the actions of these individuals, or in the alternative, was vicariously responsible for the actions of these individuals, and c. in the unique position of having some knowledge regarding the actions taken by those they employed in this matter, and d. owed a duty of care to the Plaintiffs, because of the information that was in their possession.
12. At all material times the Defendant Murray Brown, a. resided in or near Regina, and b. was a Barrister and Solicitor entitle to practice law in Saskatchewan, and c. was the Executive Director of Public Prosecutions for the Province of Saskatchewan, or acting as counsel for the estate of Richard Quinney, in Q.B. 271 (1994), Judicial Centre of Saskatoon, and d. was fully conversant with every aspect of both Plaintiffs arrest, detention and attempted prosecution, and e. had possession of more exculpatory evidence than both of the plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs.
13. At all material times the Defendant Daryl Rayner, a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was Director of Prosecutors for the Province of Saskatchewan, or acting Executive Director of Public Prosecutions for the Province of Saskatchewan, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and
e. had access to, or direct possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs.
14. At all material times the Defendant Donald Arthur McKillop, a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was a senior Crown working in the Civil Division, for Saskatchewan Justice and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs.
15. At all material times the Defendant James Plemel, a. resided in or near Saskatoon, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was the Regional Crown prosecutor for Saskatchewan Justice in Saskatoon, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had possession of more exculpatory evidence than both of the Plaintiffs, and f. owed a duty of care to the Plaintiffs, because of the information that was in his possession, and h. knowingly conspired with the Defendants and other persons, in order to maliciously prosecute the Plaintiffs.
16. At all material times the Defendant Charita Ohaashi, a. resided in or near Regina, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and
c. was a Crown working in the Civil Division, for Saskatchewan Justice, and d. had access to the same material held by Defendant Donald Arthur McKillop, and e. owed a duty of care to the Plaintiffs, because of the information that was in the Defendant's possession. g. knowingly conspired with the Defendants and other persons, to maliciously prosecute the Plaintiffs.
17. At all material times the Defendant Rod Donlevy, a. resided in or near Saskatoon, and b. was a Barrister and Solicitor entitled to practice law in Saskatchewan, and c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. had access to the same material held by Defendant Donald Arthur McKillop, and f. owed a duty of care to the Plaintiffs, because of the information that was in the Defendant's possession, and h. knowingly conspired with the Defendants and others, in order to maliciously prosecute the Plaintiffs.
18. At all times the Defendant Paul Hrabinsky, a. resided in or near Saskatoon, and b. was a Judge of the Court of Queen's Bench, of Saskatchewan, and, c. was fully conversant with all of the matters, or most of the matters, contained within this Statement of Claim, and d. was fully conversant with every aspect of the arrest, detention and attempted prosecution, of Plaintiff John David Lucas and Plaintiff Johanna Erna Lucas, and e. owned a duty of care to the Plaintiffs, because of the information that was in the Defendant's possession, and g. knowingly conspired with the Defendants and other persons, to maliciously prosecute the Plaintiffs.
20. On September 16th, 2003, all of the Defendants, with the exception of Defendant Charita Ohaashi, knew that some of the allegations contained in paragraph 5, were untrue.
21. On September 16th, 2003, Defendant Murray Brown, Defendant Daryl Rayner, Defendant Donald Arthur McKillop, Defendant Brian George Dueck, Defendant Rod Donlevy, Defendant Paul Hrabinsky and other persons, knew that none of the allegations contained within paragraph 5, were true.
38. The Plaintiffs claim punitive damages on the basis that the conduct of the Defendants was deliberate.
39. The Plaintiffs claim punitive damages, on the basis that the conduct of the Defendants is malicious, oppressive, high- handed, egregious and offends decency.
Each of the plaintiffs therefore claims the following relief from each of the defendants: a. General Damages in excess of $10,000,000.00, b. Aggravated damages, c. Exemplary damages, d. Punitive damages, e. Special damages including compensation for out of pocket and other expenses in such amounts as shall be proven at trial, f. Interest pursuant to the Pre-Judgment Interest Act, g. The costs of and incidental to this action on a solicitor- client basis, h. Such other and further relief as may hereafter be sought and as this Honourable Court may allow.
Conclusion
[55] 1. The plaintiffs are granted leave to amend the pleadings alleging conspiracy to commit malicious prosecution against the defendants and alleging the police officer's negligent investigation;
2. Johanna Lucas' action against Rod Donlevy and Donald McKillop is stayed pending payment of costs;
3. The Saskatoon Board of Police Commissioners and Kim Cridland are awarded costs;
4. Costs for the other defendants are reserved pending the plaintiffs' amendments to their pleadings;
5. Any further applications are to be brought back to me on prior notice and in consultation with the local registrar.
J. A. R. Rothery
- 39 -
Q.B. No. 616, 2007
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF SASKATOON
BETWEEN:
JOHN DAVID LUCAS, JOHANNA ERNA LUCAS
PLAINTIFFS
AND :
JOSEPH FABER, KIM CRIDLAND, BRIAN GEORGE DUECK, SASKATOON BOARD OF POLICE COMMISSIONERS, UNKNOWN POLICE EMPLOYEE #1, UNKNOWN POLICE EMPLOYEE #2, PROVINCE OF SASKATCHEWAN, MURRAY BROWN, DARYL RAYNER, DONALD ARTHUR MCKILLOP, JAMES PLEMEL, CHARITA OHASHI, UNKNOWN CROWN PROSECUTOR # 1, UNKNOWN CROWN PROSECUTOR # 2, ROD DONLEVY, PAUL HRABINSKY
I will be following the civil case, Q.B. No. 616, 2007, filed on May 14, 2007 in The Court of Queen’s Bench in Saskatoon by Plaintiffs JOHN DAVID LUCAS and JOHANNA ERNA LUCAS.
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