Statement of Claim
“Our system remains imperfect, and wrongful failure to disclose is not a mere hypothetical – it can, and does, happen, sometimes taking an extraordinary human toll and resulting in serious harm to the administration of justice.”
To sue for wrongful conviction, you no longer need to prove that the Crown breached its duty intentionally or with malice.
Now it suffices to prove that the Crown breached its duty to disclose to the defence all exculpatory as well as inculpatory evidence.
For late or failed disclosure, Charter damages are a just remedy, serving several functions: compensation, vindication, deterrence.
Thus was the Nelles Test modernized in a 2015 ruling from the Supreme Court of Canada:
Inez Cardinal acted in bad faith. Her state of mind was reckless and callously indifferent. As a Senior Prosecutor, Inez Cardinal knew, or ought to have known, the proper steps to issue an Appearance Notice. She failed to inquire whether the Notice was received. By brushing aside a Confirmation Hearing, Inez Cardinal violated CCC s. 508 which is a mandatory provision of the Canadian Criminal Code.
Inez Cardinal also had full knowledge of two salient facts: (1) I was seriously ill at the time in question, and (2) she mailed the court notice to the wrong address.
Inez Cardinal abused her position of trust, and used the law for an improper purpose. Despite knowing the facts, she proceeded with a false arrest and false imprisonment. Inez Cardinal committed an act of targeted malice which reflects a broader issue: During 2006, Inez Cardinal interfered with my Care Home residence. Worse, Inez Cardinal damaged my physical health when she pushed the Preliminary Inquiry court dates closer and closer together, not allowing me time to recover physically between sessions.
Those actions fulfilled this agenda: Inez Cardinal strove repeatedly, time and again, to hinder my ability to complete the legal writing, and the research into case-law, that was expected of me in preparation of the Preliminary Inquiry for Information #738.
|GEORGENA SARAH SIL|||||PLAINTIFF|
|– and –|
1. The Plaintiff GEORGENA SARAH SIL (hereafter the Plaintiff SIL) resides in Saskatoon, Saskatchewan. She is trained as a research scientist in Physics, in the field of lasers and non-linear optics. Currently she is disabled from working.
2. The Defendant INEZ CARDINAL (hereafter the Defendant CARDINAL) resides in or near Saskatoon, Saskatchewan. She is employed as a Crown Prosecutor by the Department of Justice at the Saskatoon Prosecution District Office.
3. The Defendant CARDINAL represented the Crown at part of the Preliminary Inquiry for the Plaintiff SIL regarding Information #738, held before Judge Barry Singer at Saskatoon Provincial Court. Specifically, the Defendant CARDINAL was the sole Prosecutor for the court sessions from May 10, 2005 to February 2, 2007 inclusive.
4. The Defendant CARDINAL in a willful and eager manner subjected the Plaintiff SIL to false arrest and false imprisonment for one day from October 12 to October 13, 2006. This contravened sections 137 and 140 of the Canadian Criminal Code.
5. During 2004 and 2005, Robert Borden represented the Plaintiff SIL. However, through 2005 Robert Borden acquired an increasing array of new clients. These were custody cases and Queen’s Bench cases, and some also had a high media profile. According to both Robert Borden and Judge Singer, such cases ‘took priority’ over the Plaintiff's own Preliminary Inquiry in Provincial Court.
6. Near the end of 2005, Judge Singer himself was ill and in hospital. After recovering, Judge Singer called an administrative session on January 18, 2006. The aim was to reschedule SIL's case, and accordingly her next Preliminary Inquiry dates were set as May 4 and May 11, 2006. There now existed a one-year adjournment, in stages, between her last Preliminary Inquiry session and the next. The lion's share of the delay was due to her attorney being overburdened. On January 18, 2006 the Plaintiff SIL wrote to Judge Singer for permission to dismiss Mr. Borden so she could retain other counsel who had more time.
7. During 2004 and 2005, the court accommodated the serious physical disability of the Plaintiff SIL by setting the Preliminary Inquiry sessions far enough apart to permit proper preparation by the defence. This accommodation was slow to start: The first Prosecutor, Robin Ritter, denied her health status wholesale, but was over-ruled by Judge Singer after the Plaintiff's family physician Dr. Straza filed a medical report in affidavit format, and especially after the complainant himself, Dr. Joel Yelland, testified under oath and in depth to her health conditions.
8. During 2006 and 2007, the Plaintiff SIL represented herself in regard to Information #738, apart from a brief appearance by John Hillson at the Preliminary Inquiry session of July 6, 2006.
9. While the Plaintiff SIL represented herself, the Defendant CARDINAL set out with vigor and malice to take unfair advantage of the Plaintiff's poor physical health. The Defendant CARDINAL abused the public trust and misused her authority as a Prosecutor when she opted to use injurious, mala fide, underhand tactics to attenuate the efforts of the Plaintiff SIL who wanted only to make full and diligent answer to Information #738.
10. In particular: When the Plaintiff SIL was self-represented, the Defendant CARDINAL inveigled the court into scheduling the Preliminary Inquiry sessions closer and closer together, and cramming more and more steps into each individual session, until the Plaintiff's health utterly collapsed. To achieve this, the Defendant CARDINAL did rebuff and deny the wealth of medical evidence already on file with the court.
11. Through 2006 the Plaintiff SIL had to simultaneously juggle three major tasks:
12. Preliminary Inquiry sessions were scheduled for May 4, May 11, June 13, and July 6 of 2006. The Plaintiff SIL attended all of those sessions.
13. Within days of the July 6, 2006 session, the Plaintiff SIL developed a virus. The first sign occurred on the morning of the court session, in the form of blockage of her ears (external auditory canal and Eustachian tubes). The court transcript for July 6, 2006 confirms she could not hear and that she asked people to speak louder at least forty-four times through that session. The virus in turn triggered a flare of her Lupus condition. Her health utterly collapsed. The Plaintiff SIL was in bed for the next three months.
14. The Plaintiff SIL knew she would not be able to prepare for, and would not even be able to attend, the July 13, 2006 session. She felt increasingly ill, but understood that a severe penalty would ensue if she did not notify the court. Thus on July 6 and July 9, 2006 she left detailed voice-mail messages on the phone line of the Provincial Court clerk. To follow up she sent a verbatim typewritten copy of the messages by courier on July 12, 2006 to both Judge Singer and to the Defendant CARDINAL.
15. In the same courier package, the Plaintiff SIL enclosed a copy of a letter previously prepared. The letter was addressed to Chief Justice Seniuk; it stated that Judge Singer had rescinded his order for a publicly-appointed attorney, and asked for a review of that decision. The letter contained a prominent instruction in the second paragraph that any time-sensitive information from the court should be sent to the Plaintiff SIL's residence, namely the Whitecap Personal Care Home, and should not be sent to her postal box at the Main Post Office which requires a taxi trip downtown.
16. When the Plaintiff SIL missed court on July 13, 2006 due to illness, the Defendant CARDINAL demanded that a Bench Warrant be issued for her arrest. Judge Singer did write a Bench Warrant, but in view of SIL's courier submission, he ordered the Warrant held until the next Prelim date, chosen at that time as October 11, 2006.
17. The Plaintiff SIL was completely ignorant of the new court date of October 11, 2006. The Defendant CARDINAL failed to give adequate notice. The notice procedure was so faulty that it failed to meet the most basic provisions in the Criminal Code. When a case is adjourned, it is mandatory that the fact of it, the place, and the new time must be stated to in the presence of the accused. The Code offers four viable methods: An Appearance Notice, a Promise to Appear, a Recognizance, or a Summons. Each requires a signature from the accused or sworn testimony from the peace officer who served the notice. If notice is given and the accused still fails to appear, a Confirmation Hearing must be held to verify service before an arrest Warrant is executed.
18. To give notice of the October 11, 2006 court date, the Defendant CARDINAL relied only upon a simple letter sent by regular mail to the postal box of the Plaintiff SIL – located at the Main Post Office downtown which Ms. Sil then was far too ill to visit. The notice was time-sensitive, with strict consequences if not received. At the very least, it should have been sent to Ms. Sil's residence at the Whitecap Care Home instead of to her postal box.
19. The Defendant CARDINAL did not issue or even consider an Appearance Notice, a Promise to Appear, a Recognizance, or a Summons. No peace officer was enlisted to provide personal service, and no signature was collected from the Plaintiff SIL.
20. The Defendant CARDINAL did not arrange the Confirmation Hearing that the Code requires. The Defendant CARDINAL spurned even the most rudimentary check to determine if the Plaintiff SIL was alert to the October 11, 2006 court date. The only notice sent was a letter by regular mail, and items can and do go astray in the post. Quite aside from health issues, the Defendant CARDINAL at the very least should have phoned the Plaintiff SIL to determine if said mail was received.
21. The Defendant CARDINAL did none of those things but instead hurtled ahead with a Bench Warrant. The result was Information #290 which charged the Plaintiff SIL with failure to appear pursuant to Criminal Code Statute 145(2)(b).
22. On October 12, 2006 the Plaintiff SIL was arrested and held in detention overnight at the Saskatoon Police Station. Detention conditions were oppressive. The Plaintiff SIL could not lie down, so could not sleep. In her wheelchair she sat wracked with pain, suffering muscle fatigue and cognitive exhaustion. The timing of the arrest at 5 PM excluded the Plaintiff SIL from obtaining legal counsel as law offices were closed.
23. The arresting officers were Cst. Baker (Badge #420) and Cst. Martin (Badge #535). At the Care Home, they asked the staff for the prescription medicines belonging to the Plaintiff SIL, to take along to the Police Station. When released the next day, the Plaintiff SIL noticed that eighteen tablets of her pain medicine were missing from the vial loaned to police. The theft could be attributed to the Whitecap care aide, Delores Kenny, who gave the vial to police, but an investigation failed to prove that. The theft could also be attributed to one or more justice personnel who had access to the vial, the purpose being to try to discredit the Plaintiff SIL while her legal case was before the court. The Plaintiff SIL recorded the theft in her Witness Statement to police identified by Occurrence #06-110315.
24. Behind the scenes, the Defendant CARDINAL manipulated two eviction attempts by Whitecap Care Home. Then on October 11 or 12, 2006 the Defendant CARDINAL wrote a letter to the Saskatoon Police, arguing that the Plaintiff SIL could be rescued from her “housing crisis” with a long-term “jail cell.” The theme was amplified at the Show Cause Hearing held on October 13, 2006, where Prosecutor Marilyn Gray wielded the eviction attempts like a club to oppose the release of the Plaintiff SIL. The Crown argued: “At the end of this month, this individual does not have a residence. She has been evicted from her home or will be – she's been given notice. There's the concern about her having appropriate accommodation, coming to court.”
25. The Plaintiff SIL represented herself at the Show Cause Hearing, and was released on October 13, 2006. She suffered adverse effects from the arrest. She lost any remaining trust she might have had in members of the justice system. She was held up to ridicule in her community, especially within the Whitecap Care Home whose residents all witnessed the 5 PM event while they gathered in the dining room waiting for supper.
26. On October 30, 2006 in her own room at Whitecap Care Home, the Plaintiff SIL was physically assaulted by the owner Gary McCoshen. Gary spoke grimly of eviction and said he “would kick her ass and put her out on the street.” The Plaintiff SIL captured the audio conversation on her video camera. When Gary noticed the camera, he swung at her with two fists, but pulled back in time. Gary then violently and at length tried to grab the camera. The Plaintiff SIL held onto it, but in so doing, Gary injured her hands, causing three bleeding gouges. Ms. Sil felt very shaken. She phoned police and filed a Witness Statement identified by Occurrence #06-116079.
27. On October 31, 2006 the Information #290 was on the Provincial Court docket. The Plaintiff SIL attended, representing herself. Also present in Courtroom 4 with no explanation was Gary McCoshen accompanied by three pre-teenage boys. Gary held at least two conversations with Prosecutor Marilyn Gray.
28. Information #290 next appeared on the Provincial Court docket on November 30, 2006. The Plaintiff SIL attended, representing herself. She filed a Notice of Motion to request full disclosure for this charge.
29. On December 5, 2006 the Regional Crown Prosecutor wrote a letter to the Plaintiff SIL stating that the Crown was withdrawing the charge in Information #290. The effective date would be December 21, 2006.
30. The Plaintiff SIL claims against the Defendant CARDINAL the following relief:
DATED at Saskatoon, in the Province of Saskatchewan, this 21st day of December, 2007.
|SWORN BEFORE ME at the City||)||____________________|
|of Saskatoon, in the Province of||)||Georgena S. Sil|
|Saskatchewan, this 21st day of||)|
|December , A.D. 2007.||)|
|ILLA M. KNUDSEN|
|A COMMISSIONER FOR OATHS IN AND FOR|
|FOR THE PROVINCE OF SASKATCHEWAN,|
|BEING A COURT OFFICIAL.|
Canadian Criminal Code
Offences Against the Administration of Law and Justice
CCC s 137. – Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Canadian Criminal Code
Offences Against the Administration of Law and Justice
CCC s 140. (1) – Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by:
CCC s 140. (2) – Every one who commits public mischief:
Canadian Criminal Code
Information, Summons and Warrant
CCC s 508. (1) – A justice who receives an information laid before him under section 505 shall:
(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so;
(b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice, promise to appear or recognizance or to an included or other offence,
(i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or
(ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with section 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice, promise to appear or recognizance, as the case may be, has been cancelled; and
(c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear or recognizance, as the case may be, and cause the accused to be notified forthwith of the cancellation.
CCC s 508. (2) – A justice who hears the evidence of a witness pursuant to subsection (1) shall
(a) take the evidence on oath; and
(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.
‘Ex Parte’ means outside the awareness of a party; for one party only.
Tuum Est - It Is Up To You
The crossing of space may do much to turn men’s minds outwards and away from their present tribal squabbles.
Arthur C. Clarke
The Canadian Criminal Code in s. 508 states a Confirmation Hearing must be held, to verify that a Subpoena or a Court Appearance Notice was truly served on a witness or defendant, before a Bench Warrant can be written to arrest the absentee person.
There are various mandatory clauses in the Criminal Code that say: When a case is adjourned, the fact, place and time of the adjournment must be stated to, and in the presence of the accused.
Surely the principle reason for such provision to be in the Criminal Code is so there can be no doubt as to the date, and to ensure that the accused is personally aware of the date of his next appearance.
The easiest type of case to foresee is one in which the accused has been misled by a slip on the part of the Court or by some other irregularity as to the date on which he is to appear.
When a criminal case is adjourned, the accused is notified of the new date thus: An Appearance Notice or a Summons must be delivered to the accused in person by a peace officer.
If the accused does not arrive in court on the appointed day, then the judge may endorse a Bench Warrant, or Warrant in Default of Appearance. But before arresting a person for not attending court, the judge must find out whether the accused did, or did not, receive the notice or summons.
A Confirmation Hearing is held where the evidence of the peace officer (his Affidavit or his oral testimony) is taken in the manner described in this document.
Under the confirmation provisions of CCC s. 508, the Confirmation Hearing is distinct from the swearing of the Information itself.
The logic of the process requires that ‘service’ of an Appearance Notice be verified at the confirmation level and not later. If the judge has reasonable grounds to believe that it is in the public interest to issue a Summons rather than a Warrant, then it would be within his discretion to so proceed. Such grounds might include information as to the whereabouts or the medical condition of the accused.
It would be impossible to envisage every situation that could amount to a lawful excuse for failure to attend court. Sudden illness, a breakdown of transport and the like are clear situations that could amount to a lawful excuse for failure to appear.
The existence of a court order (a notice to appear) is not the central issue in the case – the central issue is whether the evidence demonstrates that the accused had a lawful excuse for his conduct (namely failure to appear).
In a democracy such as Canada, few values are more important than the right not to be unlawfully arrested and detained.
The tort of false arrest and false imprisonment stems from the writ of trespass. The wrong is in the restriction of the plaintiff's liberty, and it is not necessary to prove actual damage. A plaintiff must prove that he or she was imprisoned, and the onus then lies on the defendant to prove lawful justification. Contemporary cases usually involve a person imprisoned ostensibly under statutory authority.
There is a ‘directness’ requirement. False arrest and false imprisonment must occur as a direct result of the defendant's conduct. The tort is made out if:
A critical question is: Who made the decision to arrest? If the defendant directed the police to make an arrest, or otherwise utilized the police for his or her own private purposes, the tort will succeed.
Police arrested Valderhaug based on information from a complainant named Libin. Later, when Libin learned his information was false, he failed to inform police. The court upheld the claim for false imprisonment on the ground that ‘the arrest was the direct consequence of what Libin told police, and occurred without any investigation by any police officer into the facts. In so far as Libin had the power or influence to do so, he directed police to make the arrest.’
Where a complainant directs the police to make an arrest, and the police act on this directive without exercising independent discretion, an action for false imprisonment against the complainant can succeed.
A person who falsely and maliciously informs the police that someone has committed a crime may be taken to have procured the charge or initiated the prosecution, even though it was the police who laid the charge.
The Supreme Court said ‘If Mr. Boulanger had instructed the constable to put a particular content into his report, that amounts to using his office in a way that betrays the public trust.’ There is equal liability if a person puts false content into their own report, then gives the report to police. A report is actionable if it does not agree with the preponderance of evidence, if it conceals the truth, or if it otherwise intends to mislead.
The work of a public servant must be a real service in which no concealed self-interest should bias his or her judgment, and in which the substantial truth of every transaction should be made to appear.
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