R. v. Luipasco (W.) et al., (2007) 430 A.R. 53 (PC)

• Judge: Lefever, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 11, 2007
• Citations: (2007), 430 A.R. 53 (PC);2007 ABPC 250

R. v. Luipasco (W.) (2007), 430 A.R. 53 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. OC.084

Her Majesty the Queen v. William Luipasco, Steven Dimock and Scott Hutton (A04492994K; A04492983K; A04492972K; 2007 ABPC 250)

Indexed As: R. v. Luipasco (W.) et al.

Alberta Provincial Court

Lefever, P.C.J.

September 11, 2007.

Summary:

The accused were charged with being intoxicated in a public place contrary to s. 115 of the Gaming and Liquor Act (Alta.). The charges were dismissed when disclosure issues arose (Charter, s. 7). The accused sought an award of costs based on the Charter breach.

The Alberta Provincial Court dismissed the application for costs, holding that the accused's claim sounded more in malicious prosecution than in a breach of a s. 7 Charter right of disclosure that rendered the trial unfair.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The accused were charged by police officers with being intoxicated in a public place contrary to s. 115 of the Gaming and Liquor Act (Alta.) - The charges were dismissed when disclosure issues arose involving the police (Charter, s. 7) - The accused applied for costs based on the Charter breach (i.e., their claim was based on alleged tortious conduct of the police in detaining them and issuing tickets when no clear offence had been committed, allegations that police reports were fabricated to justify the charges and the prosecution was wrongly continued given the tortious acts underlying the issuance of the tickets) - The Crown argued that while the Crown and police were treated as indivisible for purposes of disclosure, that "indivisibility" did not extend to all acts committed by police officers in the line of duty - More specifically, the Crown argued that it was not generally liable for any tortious act committed by a police officer in the line of duty - Where, as here, a claim for costs masked what was in fact a claim in damages for malicious prosecution, the application in criminal court should be dismissed leaving the accused to seek a remedy in civil proceedings - The Alberta Provincial Court agreed with the Crown's arguments and dismissed the accused's costs application - The court held that the accused's claim sounded more in malicious prosecution than in a breach of a s. 7 Charter right of disclosure that rendered the trial unfair - See paragraphs 1 to 112.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The Alberta Provincial Court discussed the test for when costs could be awarded based upon a s. 7 Charter breach - The court stated that the authorities established the following propositions: "a. The guiding principle in considering an application for costs requires evidence which establishes 'circumstances of a marked and unacceptable departure from reasonable standards expected of the prosecution' ... b. An award of costs can be made to remedy: i. expenses incurred as a direct result of a breach of the Crown's disclosure obligations ... ii. an abuse of process, under the residual category of a s. 7 Charter breach ... c. An award of costs should not be made to award damages ...; and d. Whether costs should be awarded in a criminal prosecution as a result of the breach of an accused's Charter rights by the Crown invokes different policy considerations than those involved in a civil action for damages for malicious prosecution ..." - See paragraphs 33 to 51.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The Alberta Provincial Court discussed whether the Crown and police officers were indivisible when assessing s. 7 Charter applications for disclosure and whether that indivisibility extended to applications for costs predicated upon a claim of malicious prosecution - The court concluded that: (a) police officers and the Crown were not an indivisible entity for all purposes; (b) a municipality was not vicariously liable for the tortious acts of police officers arising out of the performance of the police officer's duties while a member of that municipality's police service; (c) the chief of police in his/her capacity as chief of police was vicariously liable for the tortious acts of police officers acting under the authority of the chief of police (the Police Act); (d) any police officer found tortiously liable for an act arising out of the performance of his/her duties may seek indemnification from the municipality of which the police officer was a member of that municipality's police service (the Police Act); and (e) a finding of tortious liability is made against a police officer in his/her personal capacity, and not in any institutionalized role as part of the Crown - See paragraphs 52 to 84.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The Alberta Provincial Court (Lefever, P.C.J.) discussed what was the most appropriate forum to resolve a costs application which was predicated upon the basis of malicious prosecution - The court, after considering the authorities, concluded that "a. Care should be taken to provide effective access to the courts for those who seek a remedy, particularly in the case of a criminal accused, who may be on legal aid and would otherwise be unable to seek redress for a legal wrong committed by a state actor ... b. Where a claim against the Crown is predicated upon malicious prosecution, a heavy onus rests upon the claimant to establish that the Crown qua Crown Prosecutor has acted in a manner 'inconsistent with the status of minister of justice', and in effect has 'perpetrated a fraud on the process of criminal justice and in so doing has perverted or abused [the] office and the process of criminal justice' ...; and c. The Provincial Court should be wary of hearing a malicious prosecution claim under the guise of a costs application flowing from a breach of s. 7 of the Charter. While not stated in the authorities, it appears to me that any conclusion that the Crown as an institution, or a Crown prosecutor in person had 'perpetrated a fraud on the process of criminal justice' raises significant policy issues which generally should not be determined in a summary application save and except for exceptional circumstances." - See paragraphs 85 to 96.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See first and third Civil Rights - Topic 8380.7].

Criminal Law - Topic 4506

Procedure - Trial - Special duties of Crown - Production of statements and memoranda in possession of investigating police officers - [See first and third Civil Rights - Topic 8380.7 ].

Criminal Law - Topic 4506

Procedure - Trial - Special duties of Crown - Production of statements and memoranda in possession of investigating police officers - The Alberta Provincial Court (Lefever, P.C.J.), stated that "from the authorities I conclude that when considering the discrete issue of Crown disclosure, there is no division between the Crown and the police for purposes of applications for Crown disclosure, and there are corresponding duties on the police to provide the Crown with all information that should be disclosed, and upon the Crown to seek that which should be disclosed. The authorities, with the exception of Galka, have not created a form of conjoined police-Crown prosecutor entity which, without more, visits upon the Crown liability for police acts amounting to malicious prosecution" - The court thereafter considered the circumstances in which the Crown might be directly liable in damages for malicious prosecution - See paragraphs 68 to 70.

Crown - Topic 2

General principles - Indivisibility of the Crown - [See first and third Civil Rights - Topic 8380.7 and second Criminal Law - Topic 4506 ].

Crown - Topic 1529

Torts by and against Crown - Liability of Crown for acts of servants - Police - [See first and third Civil Rights - Topic 8380.7 and second Criminal Law - Topic 4506 ].

Crown - Topic 4941

Actions against Attorney General - Malicious prosecution - General - [See first and fourth Civil Rights - Topic 8380.7 and second Criminal Law - Topic 4506 ].

Police - Topic 5001

Actions against police - General - [See third Civil Rights - Topic 8380.7 ].

Police - Topic 5221

Actions against police - For malicious prosecution - General - [See first and fourth Civil Rights - Topic 8380.7 and second Criminal Law - Topic 4506 ].

Torts - Topic 6151

Abuse of legal procedure - Malicious prosecution - General - [See first and fourth Civil Rights - Topic 8380.7 and second Criminal Law - Topic 4506 ].

Cases Noticed:

R. v. McKay, [2003] A.J. No. 807 (Q.B.), refd to. [para. 11].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 142 C.C.C.(3d) 303 (C.A.), refd to. [para. 28].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 33].

R. v. Derose (A.S.) et al. (2002), 326 A.R. 241 (Prov. Ct.), refd to. [para. 37].

R. v. AGAT Laboratories Ltd. (1998), 218 A.R. 160 (Prov. Ct.), refd to. [para. 38].

R. v. B.M., [2003] O.T.C. 331 (Sup. Ct.), refd to. [para. 39].

R. v. Nest (D.) et al., [2004] 4 C.N.L.R. 237; 370 A.R. 201 (Prov. Ct.), refd to. [para. 48].

R. v. Galka, [2007] O.J. No. 119 (C.J.), refd to. [para. 50].

R. v. Campbell (J.) and Shirose (S.) (1999), 237 N.R. 86; 119 O.A.C. 201; 133 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 55].

R. v. Dumont (D.L.) (2002), 308 A.R. 334 (Prov. Ct.), refd to. [para. 58].

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. 59].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 72].

R.H. v. Alberta, [2006] A.R. Uned. 249 (Q.B.), refd to. [para. 73].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201, refd to. [para. 74].

Ward v. Vancouver (City) et al., [2007] B.C.T.C. Uned. 90 (Sup. Ct.), refd to. [para. 76].

Prefontaine v. Veale et al. (2003), 339 A.R. 340; 312 W.A.C. 340; 24 Alta. L.R.(4th) 223 (C.A.), refd to. [para. 79].

Yee v. Reimer et al. (1997), 202 A.R. 63 (Q.B. Master), refd to. [para. 81].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 2].

Gaming and Liquor Act, R.S.A. 2000, c. G-1, sect. 115 [para. 1].

Counsel:

Dave Hill, for the Crown;

Tom Engel, for the applicants.

This application was heard by Lefever, P.C.J., of the Alberta Provincial Court, who delivered the following decision on September 11, 2007.