The Supreme Court of Canada set down 4 elements to prove in a malicious prosecution lawsuit. This, the Nelles Test, is named after the first in-depth ruling on the tort.
The roles of the parties get reversed along the way. The Nelles Test is worded to reflect the final roles, to wit:
Nelles Plaintiff: This is a person arrested and prosecuted on criminal charges that are wrongful. In criminal court, he is the defendant. After acquittal, he can sue the Crown or State for damages. At that point he becomes the Plaintiff in civil court.
Nelles Defendant: This is the Crown Prosecutor, amicus curiae, police officer, public official, or witness who took an active role in prosecuting someone in criminal court on false and vengeful charges. When this person is sued for malicious prosecution, he becomes the Defendant in civil court.
The full Nelles Test (phrasing reflects final roles):
|GEORGENA SARAH SIL|||||PLAINTIFF|
|– and –|
|EX-SGT. JAMES BRACKEN (BADGE #38)|||||DEFENDANT|
|DR. JOEL CHARLES YELLAND|||||DEFENDANT|
1. The Plaintiff GEORGENA SARAH SIL (hereafter the Plaintiff SIL) resides in Saskatoon, in the Province of 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 JAMES BRACKEN (hereafter the Defendant BRACKEN) resides in or near Saskatoon, in the Province of Saskatchewan. During 2002 he was a Saskatoon Police Sergeant with Badge #38, assigned as the Lead Investigator in a case involving letters written about the predatory lifestyle of Dr. Joel Yelland.
3. Though the Plaintiff SIL indicates she is not the author of said letters, the Defendant BRACKEN laid charges against her on May 22, 2002 via Information #44909738. The Plaintiff SIL signed her first Undertaking on May 23, 2002. A month later, BRACKEN claimed this Undertaking had been breached, and he laid new charges on June 24, 2002 via Information #31150649.
4. The Defendant DR. JOEL YELLAND (hereafter the Defendant YELLAND) resides in or near Saskatoon, in the Province of Saskatchewan. He is a physician licensed to practice family medicine in Saskatchewan. From February 1998 to June 2001, the Defendant YELLAND had the Plaintiff SIL under his medical care and treatment for several health conditions which are auto-immune and purely physical.
5. Information #44909738 is still underway in the court system, and is not the subject of this Statement of Claim.
6. This Statement of Claim deals with:
7. The Breach of Undertaking charges were based on a single mail package tagged by police as Exhibit #83 (it includes a postmarked envelope plus its contents). The Defendant BRACKEN stated “the date on the stamps is difficult to read, however he was satisfied that it was posted sometime around the 5th or 6th of June 2002.” BRACKEN withheld Exhibit #83 from the RCMP Lab, thus the postmark was never subject to forensic analysis or other independent review.
8. The Defendant BRACKEN withheld Exhibit #83 from the defence. On June 24, 2002 the self-represented Plaintiff obtained a Muirhead Order for disclosure. BRACKEN, in panic and fury, then vehemently lied to the Crown about the Plaintiff's intended use of the disclosure, and the Muirhead Order was swiftly rescinded. The Plaintiff retained counsel, but did not see Exhibit #83 until June 2005. By then, BRACKEN and YELLAND had both been dismissed as Crown witnesses at the Preliminary Hearing and could not be further questioned.
9. After disclosure of Exhibit #83, the Defence Attorney and the Prosecutor saw that its envelope bore a postmark date, crisp and clearly inked, which read April 11, 2002. This ‘Breach’ package was mailed a full six weeks before the Plaintiff even signed her first Undertaking on May 23, 2002
10. The Crown entered a Stay of Proceedings for Information #31150649 during the Preliminary Hearing session held before Justice Barry Singer in Saskatoon Provincial Court on July 6, 2006.
11. The Defendant BRACKEN misused his authority as a police officer. He hid Exhibit #83, then relied on the Crown to trust his word for the fictitious postmark date, in order to cause the false arrest and false imprisonment of the Plaintiff for two days during June 24-26, 2002. This was an oppressive experience for the Plaintiff SIL, who is a wholesome well-educated individual trained as a research scientist, who has never been in trouble before. Her fragile physical health made this a titanic struggle. In the days immediately following, the Plaintiff suffered loss of support from friends and Legal-Aid, despair, loss of coping ability, emotional collapse and a suicide attempt (her one and only) for which she was hospitalized.
12. The Defendant BRACKEN misused Exhibit #83 with malicious premeditated intent. Moreover, a number of disclosure documents show he did so in collusion with the Defendant YELLAND. Such action contravenes Statutes #137 and #140 of the Canadian Criminal Code.
13. Role of Dr. Yelland: In February 1998 the Defendant YELLAND was randomly assigned as the family doctor for the Plaintiff SIL when she visited the Mediclinic at 3301-8th Street, Saskatoon. Dr. Yelland accepted her medical case and therefore owed her a duty of care by virtue of common law, contract and/or fiduciary duty based on the doctor-patient relationship.
14. From February 1998 to June 2001 inclusive, the Defendant YELLAND had the Plaintiff SIL under his medical care and treatment for conditions which are auto-immune and purely physical. SIL had five pre-existing diagnoses: Systemic Lupus Erythematosus, Interstitial Cystitis, Osteitis Pubis, Guillain-Barre Syndrome, and Pre-syncope (severe dizziness). While she was a patient of Dr. Yelland, the Plaintiff SIL developed another condition, Reflex Sympathetic Dystrophy in her right foot, which was a complication of a surgical biopsy. RSD is also physical, causing excruciating pain and the need for a wheelchair for mobility. RSD is ranked at 42 out of 50 on the McGill Pain Index, worse than cancer pain or amputee pain. Experts state that RSD is the most painful chronic disease known.
Tuum Est - It Is Up To You
The beginning of wisdom is to call
things by their right names.
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