Dix v. Can. (A.G.),

• Judge: Ritter, J.
• Neutral Citation: 2002 ABQB 580
• Citation: 2002 ABQB 580,(2002), 315 A.R. 1 (QB),[2003] 1 WWR 436,315 AR 1,7 Alta LR (4th) 205,[2002] AJ No 784 (QL),96 CRR (2d) 1,[2002] A.J. No 784 (QL),315 A.R. 1,(2002), 315 AR 1 (QB)
• Date: 13 October 1994
• Court: Court of Queen's Bench of Alberta (Canada)

Dix v. Can. (A.G.) (2002), 315 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JN.108

Jason Dix (plaintiff) v. Attorney General of Canada, Her Majesty the Queen in Right of Alberta, the Minister of Justice and Attorney General of Alberta, Arnold E. Piragoff, R. Gary McCuaig, John Bilou, Gerard Mallett, Del Huget, Douglas Workman, Richard Pasker, William Robinson, Rob Pearson, Sheila Horvat, Mike Ritchie, Kim Ross, Donald Drissell, Randall Marchand, Harvey Jones, Donald Szymiec, B.K. McLeod, Gary Steinke, Joe Mamela, Steve Marissink, Craig Smith, Ed Comaniuk, Bruce G. Jackson, Sanjiv Gill, Paul Berthiaume, Rob Blundell, Kevin Buerfiend, Fred Burdinsky, Rob Cornellssen, Randy Dennis, Mike Diack, Gerry Keane, Ken Ladouceau, Dave Laporte, Bruce MacGregor, Brad McDonald, Greg Preston, Marsh Proctor, Dean Ravelli, Al Rybka, Anne Scott, Anthony R. Shindell, Bradley P. Siddell, Glen Stoddard, Mike Sweet and B.W. Roberts (defendants)

(Action No. 9903 01952; 2002 ABQB 580)

Indexed As: Dix v. Canada (Attorney General) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ritter, J.

June 17, 2002.

Summary:

The plaintiff was charged with two counts of first degree murder. Part way through trial, the charges were dismissed on an application by the Crown prosecutor. The plaintiff sued the federal Attorney General, Alberta, the provincial Minister of Justice and Attorney General, the original Crown prosecutor, the chief Crown prosecutor and 44 others (mostly RCMP officers) for malicious prosecution, breach of Charter rights, false imprisonment, abuse of process and conspiracy. The defendants claimed that the plaintiff was contributorily negligent.

The Alberta Court of Queen's Bench allowed the plaintiff's action for malicious prosecution against the original prosecutor and six police officers. The court dismissed the claims against various police officers who had no part in initiating the proceedings against the plaintiff. The court allowed the plaintiff's action for false imprisonment against the above six police officers. The court also held that several of the plaintiff's Charter rights had been violated. However, the remedy for the Charter breaches was subsumed within the malicious prosecution claim. The court held that the claims for abuse of public office and abuse of process were subsumed in the malicious prosecution claim. The plaintiff failed to establish conspiracy and, in any event, it was also subsumed in the malicious prosecution claim. The court dismissed the claim for negligence. The court dismissed the defence of contributory negligence. The federal Attorney General was vicariously liable for the police officers and the provincial Attorney General was vicariously liable for the prosecutor. The court awarded the plaintiff damages, including punitive damages.

Editor's note: for the decision on costs in this action see (2002), 315 A.R. 139.

Barristers and Solicitors - Topic 1802

The prosecutor - Role of - The Alberta Court of Queen's Bench stated that "In Canada there is a functional, legal, and ethical division between the police and prosecutors. The police conduct the investigation. Prosecutors conduct the in-court prosecution. There is a good reason for that division, as it assists in ensuring objectivity and fairness. If a prosecutor is intrinsically involved in the investigation, there is a greater risk that he or she will lose objectivity when it comes time to assess the legal strength of the case and hence making a determination about whether there is reasonable and probable cause to lay charges and to have the police proceed." - See paragraph 290.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The police were investigating Dix for two murders - They obtained authorizations to intercept Dix's communications - The Alberta Court of Queen's Bench held that the police purposely omitted information about Dix's alibi - This was a deliberate nondisclosure and constituted a breach of s. 8 of the Charter - See paragraph 538.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1441

Security of the person - Right to privacy - General - The police suspected Dix of murder - They conducted a 13 month undercover operation designed to obtain Dix's confidence with the intent of betraying that confidence - The Alberta Court of Queen's Bench held that the undercover operation was so invasive and lasted so long that it breached Dix's right to privacy under ss. 7 and 8 of the Charter - The court noted that it was not saying that all undercover police operations intended to gain confidence of a suspect to obtain inculpatory evidence would necessarily cause a Charter breach - The court stated that "It will depend on the facts of each case whether the police cross the line, including going beyond simply surveying the suspect, and moving into the more dangerous territory of providing false assurances and breaching the suspect's expectation of privacy for some time in a way which pervasively invades the life of the suspect." - See paragraphs 545 to 547.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Dix was arrested for murder - He argued that the police breached his Charter rights by a warrantless seizure of his wife's cell phone records - The records had been voluntarily given to the police by the telephone company - The Alberta Court of Queen's Bench held that there was no breach of Dix's s. 8 Charter rights - His privacy interest in the records was minimal - The wife had the primary interest - Further, the records were the property of the telephone company - See paragraphs 513 and 534.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - Dix was arrested for murder - During a long interrogation, he repeatedly asserted his right to silence based on his counsel's advice - Notwithstanding this, the interrogations continued - The Alberta Court of Queen's Bench stated that "If a person detained asserts that they will speak no more in an interrogation, the interrogation is over. ... The right to silence is a Constitutionally enshrined Charter right, properly cherished by Canadians, and is not something which it is appropriate or acceptable for the police to ignore once asserted by an individual. This is particularly the case where a suspect repeatedly reasserts that right." - See paragraph 207.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - The RCMP arrested Dix for murder - Simpson, who had been arrested by the Edmonton City Police in unrelated matters, agreed to be an informant - Dix and Simpson were housed on the same range - The police instructed Simpson to "keep his eyes and ears open" - Simpson ingratiated himself to Dix and asked him a number a direct questions - Simpson passed information onto the police - The Alberta Court of Queen's Bench held that Simpson was a state agent and any information was elicited contrary to Dix's expressed wish to remain silent - The alleged conversations would not have occurred or would have been materially different but for police actions and steps Simpson took under police direction - There was a causal link between Simpson's conduct and Dix's making of the alleged statements - It did not matter that the directions to Simpson came from the Edmonton Police Force rather than the RCMP - See paragraphs 501 to 511.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - Dix was arrested for murder - Notwithstanding Dix's repeated assertion of his right to silence based on his counsel's advice, the police interrogated him for over 11 hours - The Alberta Court of Queen's Bench held that the police breached Dix's right to counsel and his right to remain silent - Continuing the interrogations and failing to accede to Dix's repeated assertion of his right to silence based on counsel's advice was an attack on both his right to counsel and his right to silence - "Advising individuals that they have a right to a lawyer and then denigrating their choice of lawyer, or encouraging the individual not to follow the advice of the lawyer, or attempting to circumvent that advice, including counsel's clear advice to assert the right to silence, does not meet the constitutional imperative placed on the police." - See paragraph 533.

Civil Rights - Topic 3622

Detention and imprisonment - Bail and interim release - Denial of bail without just cause - Dix was charged with murder - A jailhouse informant advised the police that Dix had told him that Dix wanted to have an ex-girlfriend killed - To avoid having the informant rendered a state agent, the police, using a fabricated name, drafted a letter to Dix offering to obtain a hit-man's services - The Crown prosecutor assigned to Dix's case was aware of the nature and authorship of this letter - Subsequently, the prosecutor relied on the letter in having Dix's bail denied - The police reminded the prosecutor of the circumstances of the writing of the letter - However, the prosecutor never corrected the misinformation given to the court - The Alberta Court of Queen's Bench held that the prosecutor breached Dix's right not to be denied reasonable bail without just cause (Charter, 11(e)) - However, the police met their constitutional obligation by reminding the prosecutor - See paragraphs 540 to 543 and 547.

Civil Rights - Topic 4302

Protection against self-incrimination - Right to remain silent - [See all Civil Rights - Topic 3160 ].

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See third Civil Rights - Topic 3160 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The plaintiff was charged with murder - Part way through trial, the charges were dismissed on an application by the Crown prosecutor - The plaintiff sued for, inter alia, malicious prosecution and breach of Charter rights - The Alberta Court of Queen's Bench allowed the action for malicious prosecution - The court also held that several of the plaintiff's Charter rights were breached - However, the court stated that it had considered the Charter breaches as factors in relation to the proof of the constituent element of malice in the malicious prosecution claim - The court held that the plaintiff's remedy for the breaches of his Charter rights was subsumed within the malicious prosecution claim - See paragraphs 548 to 553.

Criminal Law - Topic 22

General principles - Prosecution of crime - Function of the Crown prosecutor and the Attorney General - [See Barristers and Solicitors - Topic 1802 ].

Criminal Law - Topic 26.1

General principles - Prosecution of crime - Crown role at pre-charge stage - [See Barristers and Solicitors - Topic 1802 ].

Criminal Law - Topic 136

Rights of accused - Right to silence - [See all Civil Rights - Topic 3160 ].

Crown - Topic 4941

Actions against Attorney General - Malicious prosecution - General - The plaintiff was charged with two counts of first degree murder - Part way through trial, the charges were dismissed on an application by a Crown prosecutor who took over after the original prosecutor withdrew - The Alberta Court of Queen's Bench allowed the plaintiff's action for malicious prosecution against the original prosecutor and several police officers - While the police and prosecutors had a subjective belief that the plaintiff was guilty, they did not have sufficient evidence, given a proper weighing and balancing of the inculpatory and exculpatory evidence (including a strong alibi), which could have led an ordinary and prudent person to the conclusion that the plaintiff was probably guilty - Therefore, the police and prosecutors lacked reasonable and probable cause to charge the plaintiff and to continue the prosecution against him - See paragraphs 358 to 494.

Crown - Topic 4942

Actions against Attorney General - Malicious prosecution - Malice or improper purpose - What constitutes - The plaintiff was charged with two counts of first degree murder - Part way through trial, the charges were dismissed on an application by a Crown prosecutor who took over after the original prosecutor withdrew - The Alberta Court of Queen's Bench allowed the plaintiff's action for malicious prosecution against the original prosecutor and several police officers - There were several indicia of malice on the part of the police and the prosecutor, including intentional Charter breaches and misleading the court on a bail application - Further, charging and prosecuting the plaintiff in the face of evidence which suggested that he was not guilty (including evidence of a strong alibi) raised an inference of malice on the part of the prosecutor and the police - Even if it was not sufficient to raise an inference, several of the factors contributing to lack of reasonable and probable cause to charge the plaintiff, when coupled with other factors, sufficiently proved malice - See paragraphs 512 to 531.

Damage Awards - Topic 630

Torts - Injury to the person - False or unlawful imprisonment - The plaintiff was charged with two counts of first degree murder - He was subjected to aggressive investigatory techniques before and after his arrest, including Charter breaches - He spent 23 months in custody before obtaining bail - While incarcerated he lost 60 pounds and attempted suicide - Although his marriage had been shaky, following his arrest, his wife divorced him and moved away with his children - Part way through trial, the charges were dismissed - The Alberta Court of Queen's Bench allowed the plaintiff's action for malicious prosecution against the original Crown prosecutor and six police officers and for false imprisonment against the police - The court awarded the plaintiff $200,000 general damages - The court awarded $100,000 punitive damages against the police for dealing with the plaintiff in an "aggressive, offensive and high-handed manner" despite strong evidence that he was probably not guilty - The court awarded $200,000 punitive damages against the Crown prosecutor, who, inter alia, knowingly misled the court in a bail hearing - The court denied aggravated damages - Although the false imprisonment was considered in the general damages award, the court provisionally assessed $50,000 damages for false imprisonment - See paragraphs 601 to 619 and 629 to 647.

Damage Awards - Topic 678

Torts - Abuse of legal procedures - Malicious prosecution - [See Damage Awards - Topic 630 ].

Damage Awards - Topic 2012

Exemplary or punitive damages - False imprisonment - [See Damage Awards - Topic 630 ].

Damage Awards - Topic 2026

Exemplary or punitive damages - Malicious prosecution - [See Damage Awards - Topic 630 ].

Damages - Topic 907.1

Aggravation - General - Aggravated damages - Malicious prosecution - [See Damage Awards - Topic 630 ].

Damages - Topic 1303

Exemplary or punitive damages - False or unlawful imprisonment - [See Damage Awards - Topic 630 ].

Damages - Topic 1315

Exemplary or punitive damages - Malicious prosecution - [See Damage Awards - Topic 630 ].

Damages - Topic 1410

Special damages - Loss of wages - General - The plaintiff was charged with first degree murder in July 1996 - He spent 23 months in custody before obtaining bail - In September 1998, the charges were dismissed part way through the trial - The plaintiff found employment in November 1998 - From 1990 to 1996, the plaintiff's average income had been $36,493 - He earned $2,992 in 1998, $33,989 in 1999 and $28,179 in 2001 - The Alberta Court of Queen's Bench allowed the plaintiff's action for, inter alia, malicious prosecution - The court awarded the plaintiff special damages of $106,201 for past loss of income and $15,209 future loss of income - Following his release, the plaintiff was less likely to obtain employment or to obtain it quickly - The court attributed part of this to his notoriety and part to the fact that what he endured affected his character and disposition and made him a less suitable candidate for employment - He had the capacity to fully re-establish himself within two years after the trial date - See paragraphs 623 to 628.

Damages - Topic 1431

Special damages - Loss of use of money - The plaintiff was charged with murder - The plaintiff's father cashed in various investments to pay the plaintiff's lawyer - Part way through trial, the charges were dismissed - The Alberta Court of Queen's Bench allowed the plaintiff's action for, inter alia, malicious prosecution - The court awarded the plaintiff his costs for defending the charges on an indemnity basis - While it was appropriate to compensate the plaintiff for the objective costs for financing his costs, those objective costs did not extend to the father's lost investment income or negative tax consequences - However, the plaintiff's reimbursement of the borrowed money included the value of that money over the lending period - Therefore, the loss suffered due to the money being diverted from its earning capacity was compensable - The court awarded the plaintiff any shortfall between the interest rate under the Judgment Interest Act and the prime rate for the relevant periods - See paragraphs 620 to 622.

Damages - Topic 1447

Special damages - Legal fees - [See Damages - Topic 1431 ].

Damages - Topic 2481

Torts affecting the person - Malicious prosecution - General - The Alberta Court of Queen's Bench stated that "In malicious prosecution ... those who advance the malicious prosecution are liable for substantial compensation for the moral damage caused both by the false charge and by the false arrest, in addition to compensation for the Plaintiff's monetary losses ... The Plaintiff is entitled to compensatory damages for interruption of business, bodily and mental suffering, and injury to reputation and dignity" - See paragraphs 601 and 602.

Damages - Topic 2487

Torts affecting the person - Malicious prosecution - Special damages - [See Damages - Topic 1410 and Damages - Topic 1431 ].

Police - Topic 3122

Powers - Interrogation - What constitutes - Dix was arrested for murder - He was interrogated by police and on one occasion was in the interrogation room for over 11 hours - The police argued that the interrogation itself was less than 11 hours, as there were times when Dix was left in the interrogation room waiting for officers to come in and continue the interrogation - The Alberta Court of Queen's Bench held that those breaks constituted part of the interrogation, noting that they could be as intimidating and as probing as actual questions - The court stated "it is common police practice to deliberately leave individuals in an interrogation to let them 'stew', knowing the solitude is accompanied by a high level of anxiety." - See paragraph 203.

Police - Topic 3124

Powers - Interrogation - Of persons under arrest - Limitations on - [See first and third Civil Rights - Topic 3160 ].

Police - Topic 3126

Powers - Interrogation - Duties of police officers - Dix was arrested for murder - At one point, he was interrogated by police for over 11 hours commencing just after noon - He had not eaten since breakfast - During the interrogation, Dix had nothing to eat or drink - The police claimed that any obligation on their part to provide sustenance to a suspect being interrogated was based upon the suspect demanding such sustenance - The Alberta Court of Queen's Bench stated that "the obligation to feed prisoners rests with those in charge of prisons ... an arrested person is a prisoner within the charge of those keeping him and his keepers have a duty to properly care for him" - See paragraph 205.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation - The Alberta Court of Queen's Bench stated that "It is well established that there is no discrete tort founded in negligently performing a criminal investigation." - The court stated that to find otherwise would lower the standard of recovery to the point that would eliminate the tort of malicious prosecution completely, as malicious prosecution required both the absence of reasonable and probable cause and malice, whereas negligence would require only the absence of reasonable and probable cause - Requiring a standard of care higher than that of simple negligence allowed police to function effectively without fear of being sued in every case for alleged deficiencies in the investigation - See paragraphs 555 to 563.

Police - Topic 5061

Actions against police - For false imprisonment - General - The plaintiff was charged with murder - He was placed in the RCMP detachment cells - The police subsequently obtained a warrant for committal - Although the order required the plaintiff to be conveyed to a prison, the police continued to keep him in the detachment cells for a week to facilitate their investigation -The plaintiff was eventually acquitted - The Alberta Court of Queen's Bench allowed the plaintiff's action against the police for false imprisonment - He had been deprived of his liberty against his will - The police failed to prove reasonable and probable cause for his arrest - Keeping the plaintiff in the detachment cells contrary to the judicial order also constituted false imprisonment - Further, removing the plaintiff from his cell at the detachment and taking him against his will to the murder scene at midnight constituted kidnapping, a special form of false imprisonment - See paragraphs 564 to 578.

Police - Topic 5222

Actions against police - For malicious prosecution - What constitutes - [See Crown - Topic 4941 ].

Police - Topic 5224

Actions against police - For malicious prosecution - Requirement of malice - [See Crown - Topic 4942 ].

Torts - Topic 2643.2

Vicarious liability - Particular persons - Chief Crown prosecutor - The plaintiff was acquitted on two counts of murder - He sued, among others, the Crown prosecutor who originally conducted the prosecution and the chief Crown prosecutor - The Alberta Court of Queen's Bench held, inter alia, that the chief Crown prosecutor was not vicariously liable for the conduct of those who served under him - See paragraph 516.

Torts - Topic 3252

Trespass - False imprisonment - What constitutes false imprisonment - The Alberta Court of Queen's Bench stated that kidnapping was a special form of the tort of false imprisonment - See paragraph 574.

Torts - Topic 3252

Trespass - False imprisonment - What constitutes false imprisonment - [See Police - Topic 5061 ].

Torts - Topic 5701

Conspiracy - General - The plaintiff was charged with two counts of first degree murder - Part way through trial, the charges were dismissed on an application by the Crown prosecutor - The plaintiff sued for, inter alia, malicious prosecution and conspiracy - The Alberta Court of Queen's Bench allowed the action for malicious prosecution - The court held that the plaintiff failed to establish conspiracy -Further, the court stated that "if the plaintiff had established such a conspiracy, it is effectively subsumed within the malicious prosecution action, as all damage ensuing resulted from conduct which constituted the malicious prosecution. And to the extent that the conspiracy alleged was a conspiracy to commit what amounts to malicious prosecution, given that the full tort has been made out, the conspiracy is merged with the tort." - The plaintiff could not obtain damages for the same conduct twice - See paragraphs 581 to 588.

Torts - Topic 6153

Abuse of legal procedure - Malicious prosecution - Prosecution or initiation of proceedings defined - The plaintiff was charged with two counts of first degree murder - The charges were dismissed on an application by the Crown prosecutor - The plaintiff sued numerous police officers, among others, for malicious prosecution - The plaintiff argued that every officer who played a role in the investigation was part of the process of initiating the prosecution - Several of the officers named as defendants had only played a very minimal role in the investigation - The Alberta Court of Queen's Bench held that the only police defendants against whom the malicious prosecution claim had to be considered were those officers who participated in the decision to continue to investigate the plaintiff and eventually charge him - See paragraphs 337 to 350.

Torts - Topic 6155

Abuse of legal procedure - Malicious prosecution - Malice - Inference of - Two elements of malicious prosecution were absence of reasonable and probable cause and malice or an improper purpose - The Alberta Court of Queen's Bench considered whether the absence of reasonable and probable cause by itself could lead to an inference of malice - The court held that it could not infer malice solely from a lack of reasonable and probable cause - That would ignore or collapse the malice element into proof of the absence of reasonable and probable cause element - The inference of malice in relation to lack of reasonable and probable cause arose not simply on the basis of a lack of evidence that the suspect was "probably guilty", but where the evidence moved further along the continuum towards innocence - Prosecution in the face of evidence that a suspect was "probably not guilty" could justifiably raise an inference of malice - See paragraphs 525 and 526.

Torts - Topic 6155

Abuse of legal procedure - Malicious prosecution - Malice - Inference of - [See Crown - Topic 4942 ].

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - [See Crown - Topic 4942 ].

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - The Alberta Court of Queen's Bench discussed the element of an absence of reasonable and probable grounds in the tort of malicious prosecution - The court stated that "as the court is required to assess on an objective basis whether reasonable and probable cause existed, and as this is a question of law, the Court must determine if the defendants were correct ... in their determination ..." - The court noted that "A subjective belief in reasonable and probable grounds is a necessary, but not a sufficient condition for proof of reasonable and probable cause. Intuition cannot be equated with reasonable and probable cause, since there is no factual basis upon which a court can assess that intuition. ... It is also not sufficient for police to simply say they received information and relied upon it. The police have a duty to explore the reliability of that information ... In addition, a police officer must take into account all the information available. A police officer is only entitled to disregard that which there is good reason to believe is not reliable." - See paragraphs 354 to 357.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See Crown - Topic 4941 ].

Torts - Topic 6170

Abuse of legal procedure - Malicious prosecution - Defences - General - The plaintiff was charged with murder - Part way through trial, the charges were dismissed on an application by the Crown prosecutor - The plaintiff sued for, inter alia, malicious prosecution - The defendants argued that the plaintiff was contributorily negligent - The Alberta Court of Queen's Bench held that contributory negligence was not a defence to malicious prosecution, nor to any of the other intentional torts claimed by the plaintiff - Further, the plaintiff had no duty to cooperate with the police - Finally, the acts of contributory negligence suggested by the defendants, such as lying to the police or taking part in activities staged as part of undercover operation, did not constitute contributory negligence - See paragraphs 589 to 600.

Torts - Topic 6170

Abuse of legal procedure - Malicious prosecution - Defences - General - The plaintiff was charged with murder - Part way through trial, the charges were dismissed on an application by the Crown prosecutor - The plaintiff sued for, inter alia, malicious prosecution - The defendants argued that the plaintiff was contributorily negligent - The Alberta Court of Queen's Bench stated that "to the extent that an individual misleads police in their investigations, and provided the police are reasonably misled and believe that misinformation; and provided the police's reasonable belief give them reasonable and probable cause, then this itself controls against liability for malicious prosecution without need for any arguments relating to contribution on the part of the Plaintiff. No one is suggesting that the police should be held strictly liable for arresting and assisting in the prosecution of an individual who wrongfully contributes to the police's reasonable belief that they have reasonable and probable cause to pursue that individual. Contribution arguments, in such circumstances, simply need not arise." - See paragraph 591.

Torts - Topic 6251

Abuse of legal procedure - Abuse of process - General - The plaintiff was charged with murder - Part way through trial, the charges were dismissed on an application by the Crown prosecutor - The plaintiff sued for, inter alia, malicious prosecution and abuse of process - The Alberta Court of Queen's Bench allowed the action for malicious prosecution - The court held that, on the facts of this case, abuse of process was either a repetition of, or was subsumed within, the malicious prosecution action and award - The plaintiff could only be awarded damages for the same misconduct once - Therefore, it was unnecessary to deal with the abuse of process claim - See paragraphs 579 and 580.

Torts - Topic 6600

Defences - Contributory negligence - General principles - [See first Torts - Topic 6170 ].

Torts - Topic 6601

Defences - Contributory negligence - General - What constitutes contributory negligence - [See first Torts - Topic 6170 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The plaintiff was charged with murder - Part way through trial, the charges were dismissed on an application by the Crown prosecutor - The plaintiff sued for, inter alia, malicious prosecution and abuse of public office rights - The Alberta Court of Queen's Bench allowed the action for malicious prosecution - The court held that abuse of public office, of the type alleged on the facts of this case, was subsumed within the malicious prosecution once it had been established - See paragraph 554.

Cases Noticed:

Proulx v. Quebec (Procureur général) (2001), 276 N.R. 201 (S.C.C.), folld. [para. 335].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, folld. [para. 335].

Chopra v. Eaton (T.) Co. et al. (1999), 240 A.R. 201 (Q.B.), refd to. [para. 338].

Klein et al. v. Seiferling et al., [1999] 10 W.W.R. 554; 179 Sask.R. 161 (Q.B.), refd to. [para. 354].

R. v. Guse (1983), 37 C.R.(3d) 339 (Ont. Co. Ct.), refd to. [para. 355].

R. v. Porquez (1991), 114 A.R. 1 (C.A.), refd to. [para. 355].

Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), refd to. [para. 356].

Campbell v. Lobreght, Hudyma and Ryckman (1985), 66 A.R. 222 (C.A.), refd to. [para. 356].

Campbell v. Edmonton (City Police Services) - see Campbell v. Lobreght, Hudyma and Ryckman.

Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1, folld. [para. 357].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), leave to appeal refused (1998), 55 C.R.R.(2d) 188; 128 C.C.C.(3d) vi (S.C.C.), refd to. [para. 357].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 364].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 483].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 500].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 501].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 521].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 522].

Oneil v. Metropolitan Toronto Police Force et al. (2001), 141 O.A.C. 201; 195 D.L.R.(4th) 59 (C.A.), leave to appeal dismissed (2001), 284 N.R. 397 (S.C.C.), refd to. [para. 525].

R. v. Love (R.J.) (1995), 174 A.R. 360; 120 W.A.C. 360 (C.A.), leave to appeal denied [1996] 2 S.C.R. viii; 203 N.R. 390; 193 A.R. 79; 135 W.A.C. 79, refd to. [para. 531].

R. v. Solomon, [1996] R.J.Q. 1789 (C.A.), affd. [1997] 3 S.C.R. 696, refd to. [para. 534].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 535].

R. v. Drapeau (J.) (2001), 239 N.B.R.(2d) 103; 619 A.P.R. 103 (C.A.), refd to. [para. 536].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257, refd to. [para. 536].

R. v. Allain (S.) (1998), 205 N.B.R.(2d) 201; 523 A.P.R. 201 (C.A.), refd to. [para. 536].

R. v. Melenchuk (R.) et al. (1993), 24 B.C.A.C. 97; 40 W.A.C. 97 (C.A.), refd to. [para. 537].

McGillivary v. New Brunswick (1995), 149 N.B.R.(2d) 311; 381 A.P.R. 311 (C.A.), refd to. [para. 551].

Plaintiff A v. Children's Aid Society, [1995] O.J. No. 4116 (Gen. Div.), refd to. [para. 552].

German v. Major (1985), 62 A.R. 2; 39 Alta. L.R.(2d) 270 (C.A.), refd to. [para. 555].

Collie Woollen Mills Ltd. et al. v. Canada (1996), 107 F.T.R. 93 (T.D.), refd to. [para. 555].

Waters v. Commissioner of Police (Metropolis), [2000] 1 W.L.R. 1607 (H.L.), refd to. [para. 558].

Hill Estate v. Chief Constable of West Yorkshire, [1989] A.C. 53; 102 N.R. 241 (H.L.), refd to [para. 558].

Calveley et al. v. Chief Constable of the Merseyside Police, [1989] A.C. 1228; 103 N.R. 125 (H.L.), refd to. [para. 558].

Al's Steak House and Tavern Inc. et al. v. Deloitte & Touche (1994), 20 O.R.(3d) 673 (Gen. Div.), refd to. [para. 559].

Kleysen v. Canada (Attorney General), [2001] 11 W.W.R. 667; 159 Man.R.(2d) 17 (Q.B.), refd to. [para. 559].

Klein et al. v. Seiferling et al., [1999] 10 W.W.R. 554; 179 Sask.R. 161 (Q.B.), refd to. [para. 559].

Bent v. St. Coeur et al. (1999), 215 N.B.R.(2d) 1; 551 A.P.R. 1 (Q.B.), refd to. [para. 559].

Wiche v. Ontario et al., [2001] O.T.C. 359 (Sup. Ct.), refd to. [para. 560].

Beckstead v. Ottawa (City) Chief of Police (1995), 37 O.R.(3d) 64 (Gen. Div.), affd. [1997] O.A.C. Uned. 568; 37 O.R.(3d) 62 (C.A.), dist. [para. 561].

Forster v. MacDonald et al. (1993), 146 A.R. 270 (Q.B.), affd. (1995), 174 A.R. 174; 102 W.A.C. 174 (C.A.), refd to. [para. 565].

Kendall and Kendall v. Gambles, Canada Ltd., Graham, Bowering and Landru, [1981] 4 W.W.R. 718; 11 Sask.R. 361 (Q.B.), refd to. [para. 565].

Kennedy v. Tomlinson (1959), 20 D.L.R.(2d) 273 (Ont. C.A.), leave to appeal refused (1959), 20 D.L.R.(2d) 273 (S.C.C.), refd to. [para. 568].

R. v. Precourt (1976), 18 O.R.(2d) 714 (C.A.), refd to. [para. 569].

R. v. Oakley (1977), 4 A.R. 103 (C.A.), refd to. [para. 571].

R. v. Metcalfe (1983), 10 C.C.C.(3d) 114 (B.C.C.A.), refd to. [para. 572].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191, refd to. [para. 581].

Milgaard v. Kujawa et al., [1994] 1 W.W.R. 338; 112 Sask.R. 241 (Q.B.), affd. [1994] 9 W.W.R. 305; 123 Sask.R. 164; 74 W.A.C. 164 (C.A.), leave to appeal dismissed (1995), 186 N.R. 77; 134 Sask.R. 320; 101 W.A.C. 320 (S.C.C.), refd to. [para. 581].

Ward v. Lewis et al., [1955] 1 All E.R. 55 (C.A.), folld. [para. 586].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, folld. [para. 9].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

R. v. Linta (1985), 38 Alta. L.R.(2d) 272 (Prov. Ct.), refd to. [para. 590].

Proulx v. Quebec (Procureur général), [1997] R.J.Q. 2516 (Sup. Ct.), refd to. [para. 615].

McTaggart v. Ontario (Attorney General) et al., [2000] O.T.C. 855 (Sup. Ct.), refd to. [para. 616].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 629].

Huff v. Price (1990), 51 B.C.L.R.(2d) 282 (C.A.), refd to. [para. 630].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2) (2000), 255 A.R. 329; 220 W.A.C. 329 (C.A.), refd to. [para. 635].

Whiten v. Pilot Insurance Co. et al. (2002), 283 N.R. 1; 156 O.A.C. 201; 209 D.L.R.(4th) 257 (S.C.C.), refd to. [para. 636].

Authors and Works Noticed:

Cory, Peter, The Inquiry Regarding Thomas Sophonow, p. 69 [para. 483].

Klar, L., Tort Law (2nd Ed. 1996), pp. 59, 60 [para. 579].

Rainaldi, N.L., Remedies in Tort (2001) (Looseleaf), pp. 7 to 11 [para. 564].

Counsel:

Harold W. Veale, Q.C., Grant S. Dunlop, and Trevor J. Reddekopp, for the plaintiff;

G. Alan Meikle, Q.C., and Rose M. Zanin, for the provincial defendants;

James N. Shaw, David J. Stam and Christine A. Ashcroft, for the federal defendants.

This action was heard on October 1, 2001, before Ritter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on June 17, 2002.

CONTENTS

	Para. No.
I. INTRODUCTION	1
II. FACTUAL MATRIX: GENERAL	9
--a) Introduction to the Factual Matrix	9
--b) The Plaintiff's Contacts with James Deiter and Tim Orydzuk	15
--c) The Deaths of James Deiter and Tim Orydzuk	30
--d) The R.C.M.P. Investigation of the Scene	50
--e) The General Investigation into the Murders	65
--f) The Investigation Relating to Ted Adams	74
III. FACTUAL MATRIX: PRE-ARREST INVESTIGATION OF THE PLAINTIFF	87
--a) Personal Circumstances of the plaintiff	87
--b) The Plaintiff becomes a Suspect	91
--c) Operation Kabaya	117
--d) Intercepted Conversations and Search Warrants	142
--e) The Max Haines Article	155
--f) The Polygraphs	161
--g) The Independent Review	170
--h) The Re-Interview of Lu Payette	185
--i) The Location of the Murder Weapon	190
IV. FACTUAL MATRIX: THE ARREST AND POST-ARREST CONDUCT AND INVESTIGATIONS	194
--a) The Decision to Arrest	194
--b) The Plaintiff's Arrest	196
--c) The Interrogations at the Sherwood Park Detachment	203
--d) The Midnight Run	211
--e) The Investigation into the Murder Weapon	215
--f) The Jailhouse Informants	225
---i) Informant Mark Simpson	227
---ii) Informant Jeffrey Harris	249
---iii) Informant Blaine Jerabek	268
--g) The Mark Simpson Letter	273
--h) Crown Disclosure	285
--i) Police Lies to Witnesses	287
--j) The Role of Arnold Piragoff in the Murder Investigation	290
--k) The Plaintiff's Suicide Attempt	295
V. FACTUAL MATRIX: THE PROSECUTION	300
--a) The Preliminary Hearing	300
--b) The Troy Couillard Departure	307
--c) The Trial of the plaintiff	310
VI. FACTUAL MATRIX: MISCELLANEOUS MATTERS	315
--a) The Mackay Review	315
--b) The Bilou Report	318
--c) Statement Analysis	319
--d) Profiling	321
--e) Blood Splatter Analysis	322
VII. LEGAL ANALYSIS: INTRODUCTION	325
VIII. LEGAL ANALYSIS: MALICIOUS PROSECUTION - ELEMENTS OF THE TORT	335
--a) Initiation of Proceedings	336
--b) Termination of Proceedings in Favour of the Plaintiff	351
--c) Reasonable and Probable Cause and Malice: Generally	352
--d) Absence of Reasonable and Probable Cause	354
---i) The Subjective Element and Conclusion on the Existence of that Element	358
---ii) The Objective Element	366
--e) Application of Facts to Objective Reasonable and Probable Cause	374
---i) Opportunity	374
---ii) The Second Window of Opportunity	394
---iii) The Ted Adams Investigation	407
---iv) The Murder Weapon	410
---v) Motive	426
---vi) Means to Commit the Crime	438
---vii) The Scale Manual	441
---viii) October 13, 1994	445
---ix) The Jean Robertson Conversation	448
---x) Provable Lies and Inconsistencies	452
---xi) The Overheard Telephone Conversation	460
---xii) The Kimberly McKay Evidence	461
---xiii) The Max Haines Crime Article	465
---xiv) The Change in the Plaintiff's Personality and Physical Appearance	466
---xv) Character Evidence	471
---xvi) Blood Splatter Analysis	473
---xvii) The Informants	476
---xviii) Conclusion Regarding the Objective Element	488
IX. LEGAL ANALYSIS: MALICIOUS PROSECUTION: MALICE OR IMPROPER PURPOSE - THE FINAL ELEMENT	495
--a) The Law	495
--b) Inadmissibility of Evidence and Lack of Probative Value	496
--c) Agent of the State and Elicited Evidence	501
--d) Allegations and Determinations re Malice in Federal Defendants	512
--e) Allegations and Determinations re Malice in Provincial Defendants	515
--f) Conclusions on Malicious Prosecution in the Federal and Provincial Defendants	530
X. LEGAL ANALYSIS: INCLUDED AND OTHER CAUSES OF ACTION	532
--a) Breach of Charter Rights	532
---i) Breaches Claimed and Determination in Respect of Each	532
---ii) The Appropriate and Just Remedy	548
--b) Abuse of Public Office	554
--c) Negligence	555
--d) False Imprisonment	564
--e) Abuse of Process	579
--f) Conspiracy	581
--g) Contributory Negligence	589
XI. DAMAGES	601
--a) General Damages	601
---i) Quantum in Respect of General Damages	614
--b) Special Damages	620
---i) Legal Fees	620
---ii) Pretrial and Future Loss of Income	623
--c) Aggravated Damages	629
--d) Punitive Damages: The Federal Defendants	633
--e) Punitive Damages: The Provincial Defendants	640
--f) General Damages For False Imprisonment	644
XII. COSTS	648