Pearson v. Canada

Pearson v. Canada
Court (s) Database
Federal Court Decisions
Date
2006-07-28
Neutral citation
2006 FC 931
File numbers
T-290-99
Notes
Digest
Decision Content
Date: 20060728
Docket: T-290-99
Citation: 2006 FC 931
Ottawa, Ontario, July 28, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
EDWIN PEARSON
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGEMENT
[1] On February 24, 1999, the plaintiff commenced an action in this Court against the defendant, based on the actions of her servants. Mr. Pearson is seeking compensatory damages, general damages, exemplary damages and punitive damages for a total of $13 000 000.00. His claim rests on the alleged known and wilful abuse of process and malicious violations of the plaintiff's Charter rights by the Crown and her officers, servants and agents in his criminal prosecution in the Quebec courts.
[2] This case has had a very complex history, both in the courts of criminal jurisdiction and in this Court. A number of my colleagues, both judges and prothonotaries, have been called upon to adjudicate on various motions filed by the plaintiff and the defendant at various stages of this proceeding. Indeed, Justice Hansen commented in her reasons for an order dismissing a motion by the plaintiff that the case had become procedurally complex, "a fact to which the file's fifty six pages of recorded entries attests"; that was on June 21, 2001!
[3] Not only is this file complex and extraordinary by reason of its procedurally chequered history, but it also raises substantive issues that are still somewhat uncharted and contentious, from a strictly legal point of view. They have to do with the tangled web of civil and criminal law, with the elusive concepts of civil remedies and time limitations for Charter violations, and to a certain extent with the very jurisdiction of this Court.
[4] But maybe more importantly, this is a case highly charged emotionally, involving a man convicted of a serious criminal offence with all its attendant consequences for himself and his family, and who has spent the better part of the last fifteen years to vindicate his claim that his constitutional rights have been infringed and that he was unjustly sent to jail as a result. This is certainly one of the most serious claims that one can make in a democratic society governed by the rule of law, and for that reason alone it deserves to be scrutinized with the utmost seriousness.
[5] I hasten to mention that, as difficult as my task may be, I have had the tremendous advantage of being able to rely on the professionalism, the civility and the courteousness of the plaintiff, who represented himself, and of both counsel for the Crown. Mr. Pearson has proven to be a formidable litigator, well versed in the law and quite compelling in his submissions; as for the Crown lawyers, they have acted throughout these proceedings with restraint and as genuine officers of the Court, always willing to be as helpful as they could to the plaintiff. I am truly grateful and appreciative of their efforts.
[6] Before going into the details of the plaintiff's statement of claim, it is essential to summarize as briefly as possible what went on in the Quebec courts with respect to the criminal charges laid against the plaintiff, as these decisions are material to understand and assess the gist of the plaintiff's arguments. Needless to say, I shall focus on those aspects of the decisions that may be of some relevance in adjudicating on the plaintiff's claim.
BACKGROUND
[7] The accused has been charged with five separate counts of trafficking in narcotics, contrary to s. 4(3) of the Narcotic Control Act, R.S.C., c. N-1. The transactions occurred on July 21, September 12 and 26 of 1989. The circumstances surrounding Mr. Pearson's arrest are well summarized in the judgment of the trial Judge, the late Justice Hannan (The Queen v. Pearson, No. 500-01-018793-890, May 21st, 1991), as well as in the first decision of the Court of Appeal (R. v. Pearson, (1994) 89 C.C.C.(3rd) 535; [1994] Q.J. No. 66 (QL), February 24, 1994).
[8] Both prior to and during his trial, Mr. Pearson presented several motions requesting, inter alia, Crown disclosure of certain specified documents, and seeking a voir dire to determine whether evidence against him was inadmissible at his trial because it had been obtained through state action violating his Charter rights. The motions were denied by the trial judge, on the ground that the sole purpose of these motions was to obtain a pre-trial ventilation of the circumstances which might indicate that police entrapment was at the root of these charges. There being no particular allegations of violations of rights by the accused which would give rise to proof of matters other than matters relating to entrapment, the trial judge decided that these were better left to another stage of the trial. Relying on the decision of the Supreme Court of Canada in R. v. Mack, [1988] 2 S.C.R. 903, he concluded that the issue of entrapment was to be disposed of after the determination of guilt or innocence by the jury.
[9] Mr. Pearson also sought by way of pre-trial motion to have the Crown either produce Guy Bard, the R.C.M.P. informant who had introduced him to the undercover police officer (Mr. Rivard) who asked for the drug and bought it from him, or to provide him with Bard's notes or statements to the police. This motion was also denied, since Bard was not a witness to the transactions underlying the charges laid against Mr. Pearson.
[10] Mr. Pearson's position at trial was that he had been acting at all times as the agent of the purchaser, Rivard, and that he therefore was not guilty of trafficking. In his address to the jury, he stated that "[t]here is no dispute as to the actual facts in this case in relation to the actual transactions that took place. He added that "what the accused was doing was purchasing narcotics with funds provided with the R.C.M.P. for the R.C.M.P.; that "[the jury has not] heard one iota of proof that the accused committed any offence, small or big, except with the R.C.M.P." (R. v. Pearson, [1994] Q.J. No. 66, at para. 131).
[11] The jury returned verdicts of guilty on the first four counts of the indictment. The entrapment stage then took place. Again, Mr. Pearson presented a motion requesting that the Crown produce Guy Bard for cross-examination and provide all relevant documentary evidence pertaining to Bard. Once more, this motion was denied. The Crown made Bard available throughout the entrapment stage, but Mr. Pearson decided not to call him as a witness. He attempted to establish that he was a victim of random virtue testing by the police and that, in any event, they had improperly induced him to commit the offences for which he was charged. He testified that a friend of his (Duquette) had introduced him to Guy Bard, who would have later told him that this friend had become indebted as a result of a drug deal. A certain J.C. Rivard, one of the people to whom Duquette owed money, would have agreed to deduct from his friend's debt half the difference between the cost of any hashish obtained for him by Pearson at Montréal prices and the higher Ottawa price that Rivard would otherwise have had to pay.
[12] Applying the principles enunciated in R. v. Mack, above, Justice Hannan denied Mr. Pearson's motion for a stay of proceedings, confirmed the jury's verdicts and entered convictions on counts 1 through 4. He imposed sentences of "time served" on counts 1 and 2, and concurrent terms of one and four years, respectively, on counts 3 and 4. Rejecting Mr. Pearson's suggestion that the illegal transactions were caused by a desire to rescue his friend Duquette from financial difficulties and possible danger, the Court stated the following:
The Court cannot conclude that the police activity in this case went beyond having obtained information leading to a reasonable suspicion that a person, was engaged in criminal activity. Once that person, the Defendant, was identified as part of a bona fide investigation, he was provided with an opportunity to commit an offence of the nature suspected. The Defendant readily, not reluctantly, seized the chance.
(Transcription of Reasons for judgment by Justice Hannan, May 21st, 1991, at p. 18)
[13] The plaintiff appealed the trial judge's decision to the Quebec Court of Appeal (R. v. Pearson, above). The main grounds of appeal related to the inadequate disclosure by the Crown, the wrongful dismissal of his pre-trial motions, and the misdirection or non-direction as to the essential elements of trafficking. More specifically, Mr. Pearson argued, inter alia, that: 1) the trial judge erred in refusing to order the production by the Crown of certain documents prior to and during the trial, thus preventing him from making a full answer and defence and from enjoying a fair trial; 2) the trial judge erred in refusing to hold a pre-trial voir dire to determine whether evidence obtained by the State was inadmissible as violating the appellant's Charter rights; and 3) the trial judge erred in denying him the right to cross-examine a Crown witness in violation of his rights under articles 7 and 11(d) of the Charter.
[14] Writing for the Court, Justice Fish disposed quickly of the second and third grounds of appeal. In his view, the trial judge had not exercised his discretion improperly in declining to hold a voir dire and in refusing to order that a witness be produced by the Crown for cross-examination by the defence. Considering the relevance of those findings on Mr. Pearson's claim in this Court, it is worth quoting from the reasons of Mr. Justice Fish, at pp. 552-553:
The voir dire and the cross-examination referred to in grounds 2 and 3 were intended solely to ventilate the entrapment issue prior to a verdict on the merits. The trial judge was entitled, in light of R. v. Mack (...), to decline to hold a voir dire for that purpose. In doing so, he did not err in law or exercise his discretion improperly.
Nor did the trial judge err in refusing to order that Bard be made available for cross-examination by appellant. During the guilt-innocence stage, the transparent purpose of the proposed cross-examination was to make evidence, prematurely, only as to entrapment. Appellant was not entitled to raise entrapment at that stage. Finally, and perhaps most important, Bard was not a witness to the facts upon which guilt or innocence depended.
Accordingly, for the purposes of this appeal, it is unnecessary to decide whether evidence relevant to entrapment alone can ever be adduced prior to verdict (...)
At the entrapment hearing itself, Bard was made available as a witness. Appellant was aware of Bard's involvement in the investigation ultimately leading to appellant's arrest. Bard was not at all concerned in the transactions as such. Appellant could have called him if he wished and examined him pursuant to the usual rules, including those that apply to adverse or hostile witnesses. He chose not to do so. Subject to my conclusion on the issue of disclosure, I am satisfied that the trial judge did not exercise his discretion unjudicially, or otherwise err, in declining even at the entrapment stage to order that Bard be called by the Crown for cross-examination by the defence.
[15] With respect to the disclosure of the documents requested by Mr. Pearson, the Court of Appeal had the advantage of having seen some of these documents. Indeed, the Court had granted a Crown's motion to be permitted to produce the documents demanded by Mr. Pearson so that the Court could determine for itself whether the imputed non-disclosure had impaired Mr. Pearson's right to make full answer and defence. As a result, the Court allowed the Crown to produce Mr. Bard's notes relative to his meeting with Mr. Pearson, along with Bard's criminal record and the terms of his arrangement with the R.C.M.P.
[16] After having reviewed the principles formulated by the Supreme Court with respect to disclosure in R. v. Stinchcombe, [1991] 3 S.C.R. 326 and R. v. Egger, [1993] 2 S.C.R. 451, Mr. Justice Fish came to the conclusion that the Crown ought to have turned over the Bard materials to Mr. Pearson as soon as he asked for them, even if that information was relevant primarily or exclusively to the issue of entrapment. The Crown was not entitled to require Mr. Pearson to commit himself to calling Bard as a witness before providing him with the materials he was entitled to consider in determining whether he should call Bard as a witness.
[17] Since this material did not relate to evidence that the Crown intended to lead at trial, because Bard was not a witness to the events covered by the indictment, his notes and his evidence could not have affected the verdicts returned by the jury. Indeed, as noted by Mr. Justice Fish, Mr. Pearson made it clear in his address to the jury that he did not contest the evidence of the prosecution relevant to the transactions for which he was charged. He sought an acquittal on the basis that he had acted throughout on behalf of the purchaser, rather than the supplier, and was for that reason not guilty of trafficking. But this "defence" was found to be devoid of any merit, since an accused is guilty of trafficking even if acting for the purchaser if, as in this case, he has carried out acts that are caught by the definition of "traffic" set out in section 2 of the Narcotic Control Act (R.S.C. 1985, c. N-1).
[18] That being said, the Court was prepared to accept that the non-disclosure of the Bard information could have had an impact on Mr. Pearson's ability to make out his claim that he had been entrapped, even if, on their face, they did not seem to confirm his theory. As the Court stated, at pp. 563-564:
On the record as we have it, Pearson's defence of entrapment rests on a shifting factual foundation and the cracks in its structure are evident. It does not appear likely that earlier disclosure of the Bard information would have provided the defence with additional material strong enough to have changed the judge's mind. The test, however, is not one of likelihood or probability, but whether non-disclosure impaired Pearson's ability to make full answer and defence and "might have affected the outcome": Stinchcombe, supra.
Applying this test, and taking into account all of the circumstances, I believe justice will best be served by a new trial limited to appellant's defence of entrapment. This will permit the appellant for the first time to present that defence to a Superior Court judge with the benefit of information appellant should have had when the issue was initially tried.
[19] Now in reaching this conclusion, the Court was careful not to put the blame on the Crown for not having disclosed this material to Mr. Pearson in the first place. Not only had the law changed as a result of the Supreme Court decision in Stinchcombe, but the Crown had acted throughout with fairness and a desire to see that justice be done. On that point, Mr. Justice Fish wrote (at p. 561):
In my view, the entire record, both at first instance and in appeal, reveals that Crown counsel has been mindful throughout of his duty to see that justice is done. Evidently bearing in mind that Pearson is not a lawyer and was appearing on his own behalf, counsel for respondent took care at every stage to provide the defence with any material he thought to be helpful. In deciding to remit the documents concerning Bard, the Crown was not acting out of an oblique motive, but rather out of an honestly held belief that the requested material could not possibly assist the defence. This approach, thought now no longer acceptable, did not violate the governing principle enunciated by McEachern C.J.B.C. in R. v. C (M.H.) reproduced above and approved in Stinchcombe.
[20] Having established that Mr. Pearson's guilt in this case was simply a legal consequence of the undisputed and admitted actual facts, and that "no properly instructed jury, acting reasonably, could have returned different verdicts" (p. 540), the Court therefore ordered a new trial before a judge of the Superior Court, but limited to only one issue: whether Mr. Pearson was entitled to a stay of proceedings on the ground of abuse of process by reason of entrapment. Mr. Pearson challenged that decision in the Supreme Court of Canada (R. v. Pearson [1998] 3 S.C.R. 620) and contended, among other things, that the Court of Appeal did not have the power to order a new trial limited to the issue of entrapment. Given the unique nature of the defence of entrapment, not related to the innocence of the accused but to the faulty conduct of the state, the Supreme Court found that section 686(8) of the Criminal Code (allowing a court of appeal to make any order "that justice requires" when allowing an appeal) is broad enough to authorize an order directing a new trial going only to the issue of entrapment.
[21] Commenting on the other grounds of appeal raised by Mr. Pearson, Justices Lamer and Major wrote, on behalf of the majority:
The applicant also raised several other grounds of appeal before this Court. Most of these grounds relate to violations of his Charter rights or to the trial judge's instructions to the jury. Fish J.A.'s analysis of these issues is sound and we do not wish to add to it. The appellant also raised new grounds before us, submitting that the Court of Appeal ought not to have considered new evidence presented by the Crown (the informant's notes referred to above). He also presented this Court with evidence discovered in the course of the second trial on entrapment, which is now pending on appeal before the Quebec Court of Appeal. This evidence mostly relates to the testimony of undercover RCMP officers that the appellant alleges are contradictory. These matters are more appropriately dealt with by the courts below and are irrelevant to our disposition. In any case, if new evidence is discovered that questions the validity of the convictions, the appellant may apply to have his case reopened on the basis of the new evidence. (para 22)
[22] The plaintiff's second entrapment hearing took place before Justice Boilard, of the Quebec Superior Court (No. 500-01-018793-890; November 11, 1994). The evidence made before him was essentially the same as that heard by Justice Hannan and summarized by Justice Fish, with the exception that the informant Guy Bard was called by the accused and testified. According to Bard, there never were discussions nor mentions between himself and the accused concerning Duquette's alleged financial straits. The speculations mentioned by Justice Fish, to the effect that Bard could have been called to testify had Pearson seen Bard's notes, and that Bard could have said that he told Pearson that Duquette was in debt and in danger, therefore never materialized. Accordingly, the evidence of Bard that had not been presented to Justice Hannan "did not change one iota of or shed new light on the facts summarized by Justice Fish at pages 540-548" (p. 6).
[23] After having also heard the testimonies of Rivard, the undercover agent, and other R.C.M.P. officers, Justice Boilard determined that Mr. Pearson's story was "lacking in credit" and was a "preposterous account of an unbelievable story that smacks of perjury" (p. 12). He was also of the view that even if the "Duquette story" were believed, it would not afford preponderant evidence of police entrapment justifying a stay of proceedings since he was himself a drug trafficker. Suggesting to Pearson that he could help him out in paying back his debt by procuring drugs in Montréal that could be purchased at a cheaper price than elsewhere was not, according to his reading of R. v. Mack, above, a prohibited form of inducement by the police. As a result, Justice Boilard entered formal convictions on each of the four counts upon which Mr. Pearson had been found guilty by the jury in 1991, at the conclusion of his trial before Justice Hannan.
[24] Mr. Pearson appealed from that decision, but his appeal was suspended pending the outcome of his other appeal to the Supreme Court of Canada from the previous decision of the Court of Appeal. In a very short decision ([1999] Q.J. No. 5135), the Court of Appeal eventually dismissed his appeal and refused to set aside the verdict of guilt returned by the jury. While leaving the door open to the possibility of overturning a manifestly unjust verdict when properly seized of an appeal against a decision on entrapment only, the Court found that there was no basis in this case for invoking and exercising such a jurisdiction.
[25] As for the other grounds of appeal submitted by Mr. Pearson, having to do with the adequacy of the disclosure in this case and with the inconsistencies between the evidence given by the police officers and the informant before Justice Boilard and their previous evidence, they were equally rejected. The Court wrote, at para. 12:
Appellant's complaint concerning the adequacy of the disclosure relates in part to the fact that certain written materials provided to him by the Crown were edited to conceal information which the Crown considered either privileged or irrelevant, or both. In this regard, the appellant did not invite the trial judge to examine the unedited version of the materials in question in order to ascertain whether he was entitled to know what the Crown had concealed. In this Court, the Crown sought leave to file the unedited version for the Court's scrutiny. The appellant objected. After considering the matter, we concluded at the hearing that it was unnecessary for us, in these circumstances, to take cognizance of the unedited materials and we therefore declined to do so. We have since reviewed appellant's submissions on the issue, as well as his other grounds relating more generally to disclosure, and we have concluded that no reviewable error has been established in this regard.
[26] That second decision of the Quebec Court of Appeal was not appealed. But while that appeal was still pending, Mr. Pearson filed an action for damages in this Court, which was stayed until such time as the Quebec proceedings were finally terminated. In this action, the plaintiff alleges that his prosecution, conviction and imprisonment were in violation of sections 7 and 11 of the Canadian Charter of Rights and Freedoms. More specifically, the plaintiff contends that agents of the Crown wilfully and maliciously failed to disclose documents, tendered fraudulent ones and gave perjured and contradictory evidence, with the effect of depriving him of his right to a fair trial and the liberty and security of his person. At this point, it may be useful to quote in full the four grounds in support of his claim for damages, as they are stated in Mr. Pearson's statement of claim:
15) That the defendant's agents, servants and officers, did by acts and omissions done knowingly, wilfully, maliciously and with malice aforethought, [...] give false evidence that was material to the issues under inquiry, this while giving evidence under oath at the plaintiff's trial and furthermore they did submit fraudulent documents before the trial Court with the unconstitutional objective of depriving the plaintiff of his security and liberty rights and a fair trial, contrary to those rights as guaranteed by the Charter of Rights and Freedoms, ss. 7 and 11(d), Constitution Act 1982, Part 1.
16) That the defendant's agents, servants and officers did by acts and omissions done knowingly, wilfully, maliciously and with malice aforethought deprive the plaintiff of his security and his liberty rights, Charter of Rights and Freedoms, s. 7, and did deprive plaintiff of his right to a fair trial, Charter of Rights and Freedoms s., 7, by committing the immediate above stated perjury (...) and by the tendering of fraudulent documents during the plaintiff's trial on the issue of guilt or innocence ...
17) That the defendant's agents, servants and officers did by acts and omissions done knowingly, wilfully and with malice aforethought bring about the conviction and imprisonment of the plaintiff and deprive the plaintiff of his security and liberty rights by the giving of perjured evidence in a judicial proceeding in respect of material matters that were in issue, guilt or innocence indictment #500-01-018793-890.
18) That the defendant's agents, servants and officers did by acts and omissions done wilfully and knowingly deprive the plaintiff of a fair trial [...] contrary to Charter of Rights and Freedoms, s. 11(d), by disregarding their obligation to disclose to the plaintiff documents that were material and necessary to a fair trial of the issue of guilt or innocence and by their suppression of same until September and November 1994.
[27] As previously mentioned, this judicial process has been going on for more than seven years now, and culminated after a long series of procedural incidents in a trial that took place in two parts. Considering the number of legal issues raised in the various proceedings filed by both parties, and taking into account the limited means of Mr. Pearson, I decided to hold the trial in two parts. The first, which took place in Toronto on October 24 to 26, 2005, was limited to the following legal issues:
- Have the plaintiff's constitutional rights, especially those under ss. 7 and 11d) of the Charter, been infringed as a result of the proceedings that were brought by the Crown against him? If so, how are the damages to be determined?
- To what extent, if any, does the decision of the Quebec Court of Appeal dismissing the plaintiff's submissions with respect to entrapment, bar this Court from hearing this action?
- Does the three year limitation period found in the Quebec Civil Code, as incorporated by s. 39 of the Federal Courts Act, apply on the facts of this case?
- To the extent that it does apply, can such a provision be so construed as to bar a claim for damages made under s. 24 of the Canadian Charter of Rights and Freedoms?
- Is the plaintiff entitled to costs, including those arising from the transportation of witnesses, transportation of documents, and his own travel and accommodation expenses? If so, who should bear those costs?
[28] The second part of the trial, which took place from November 17 to 25, 2005,moved to Montréal. Mr. Pearson summoned a number of witnesses, mostly R.C.M.P. officers involved in the investigation of his case, as well as the undercover agent Rivard and the three Crown attorneys responsible for the prosecution of the plaintiff. Mr. Pearson also sought to have Mr. Bard as a witness, but he could not be located by the Crown since he is not on the Witness Protection Program anymore.
THE PARTIES' SUBMISSIONS
[29] Mr. Pearson's claim for damages rests on his thesis that the defendant wilfully and knowingly suppressed relevant and material documents and personal notes of the witnesses and possible witnesses, thereby curtailing his right of proper cross-examination and depriving him of his right, during the guilt-innocence stage of the trial before the jury, to impeach the credibility of the witnesses called by the Crown, as well as withholding from him relevant information for the purposes of deciding who to assign as witnesses for his defence. Accordingly, he argues that he has been deprived of a full defence and of a fair trial, contrary to sections 7 and 11d) of the Charter of Rights and Freedoms.
[30] As noted by then Associate Chief Justice Richard of this Court in his judgement dismissing Mr. Pearson's appeal from a stay of proceedings imposed until the completion of the matter in criminal court (Pearson v. Canada[1999] F.C.J. No. 1298 (QL)), Mr. Pearson's grounds for claiming damages are essentially the same as those he raised in the Quebec Court of Appeal in 1994. Justice Richard adopted the defendant's summary of the relevant issues raised by the plaintiff in that appeal at paragraph 13:
(1) The Crown unlawfully edited documents remitted to the defence under discovery demand, depriving the plaintiff of a fair trial;
(2) The police acted with mala fides, with the sole and unique motive to punish and imprison the plaintiff, for a lengthy period of time.
(3) The Crown suppressed evidence and knowingly tendered perjured testimony.
(4) The Crown knowingly and wilfully misled the defence and the trial judge.
(5) The plaintiff was denied his right to a fair trial under section 11(d) of the Charter and deprived him of his rights, as guaranteed by section 7 of the Charter.
[31] Mr. Pearson vigorously objected to his claim being characterized as a collateral attack on the decisions of the Quebec courts. First of all, he submitted that neither Justices Hannan and Boilard, from the Superior Court, nor the Court of Appeal ever had the benefit of seeing the documents that he was seeking from the Crown. As he recounted, he made an application, both at his preliminary enquiry and at his trial, for disclosure of certain documents from all the Crown investigators and witnesses, but it was denied. He then asked that some Crown witnesses be called, but this was also denied. He then presented motions, verbal and written, both prior and during the trial, seeking a voir dire to determine whether evidence against him should be excluded under section 24(2) of the Charter because he had been conscripted against himself, but this was also denied. The Crown objected to all of those motions on the ground that their sole purpose was to obtain a pre-trial ventilation of the entrapment issue. The trial judge agreed with the Crown, and the Court of Appeal confirmed that ruling in paragraph 106 of its 1994 decision, above.
[32] Following that first decision of the Quebec Court of Appeal, the Crown Attorney at the time (Me Michel Viens) went further than requested by offering to provide to the accused not only the informant Bard's notes, criminal record and terms of his arrangement with the R.C.M.P., but also the investigative reports relevant to his case. Some portions of these reports were deleted, because they related to other persons investigated or to investigative techniques. Mr. Pearson refused to consult these documents because they were vetted. As a result of his objection, Justice Barette-Joncas ordered the documents to be sealed and to be opened by the trial judge. But Justice Boilard refused to look at these documents and to unvet them, on the basis that they had nothing to do with the issue of entrapment, which was the only issue before him. As a result, Mr. Pearson alleged that the Quebec courts never pronounced on the substance of his claim in this Court since they never looked at the documents that were brought forward before me and therefore never ruled on his arguments.
[33] The Quebec Court of Appeal's finding that Bard's notes had no relevance at the guilt-innocence stage is also immaterial, according to Mr. Pearson, and should not preclude this Court from finding otherwise, since I now have the advantage of having seen all the notes and of being apprised of all the facts that were unknown to the Quebec Court of Appeal. The fact that he admitted the transactions had nothing to do with guilt or innocence, in his view, because what he told the jury was that he acted as a mere agent of the purchaser, i.e. the R.C.M.P. His submission all along was that Rivard had asked him if he could find someone from whom he could buy hashish and cocaine, not whether he could buy the drug from him directly. Had the jury been made aware of all the notes from all the witnesses, and of the contradictions that would have arisen from his cross-examinations on the basis of these notes, the verdict could well have been different. As he put it, had Rivard been found to be lying, it might very well have been the straw that broke the camel's back!
[34] All of this goes to show, again from Mr. Pearson's perspective, that the documents he requested were extremely relevant and would have been material as part of his defence arsenal, not only at the entrapment hearing but also at the guilt-innocence stage. As he stressed on a number of occasions, this is not an attempt to have the verdict overturned, but to show the significance of the evidence that the Crown, in his submission, hid from him. Whether the verdict would have been different, according to the plaintiff, is irrelevant; the mere fact that the Crown violated his right to a full defence and to a fair trial by not disclosing important pieces of evidence is enough to justify an award of damages.
[35] Not surprisingly, the defendant opposes Mr. Pearson's contentions most adamantly. In asking this Court to conclude that the documents he was seeking from the Crown would have had an impact on the verdict reached by the jury, says the defendant, Mr. Pearson is asking this Court to revisit the decision handed down by the Quebec Court of Appeal in 1994. In affirming the verdicts of the jury and ordering a new trial limited to the issue of entrapment, the Court of Appeal came to the conclusion that the material which Mr. Pearson argued should have been disclosed to him could not have affected the verdicts returned by the jury. This finding was based on the fact that Mr. Pearson had not contested the evidence of the prosecution relevant to the transactions for which he was charged, therefore making it impossible for the jury not to declare him guilty of the offences for which he was charged.
[36] Mr. Lucas, for the defendant, also pointed out that the evidence concerning what took place on June 27th, 1989, when Mr. Pearson was introduced to Mr. Rivard, the R.C.M.P. informant, was at best evidence to set the stage for the transactions; those events were merely in preparation for the completion of the transactions, which took place on July 21 and September 12 of that same year. Additionally, none of the witnesses (except Rivard) whom Mr. Pearson alleged made contradictory statements and even lied to the jury were present at the time of the transactions, and their evidence could therefore have had no impact at the guilt-innocence stage. This was key to the decision of the Court of Appeal to order a new trial limited to the question as to "whether the appellant is entitled to a stay of proceedings on the ground of abuse of process by reason of entrapment" (para. 206).
[37] Counsel for the defendant made much of the following paragraphs found in the 1994 decision of the Quebec Court of Appeal, and that I reproduce here for ease of reference:
130. As seen earlier, Crown counsel did remit to appellant the notes of the three witnesses he intended to call at trial. The material that concerns us here, on the other hand, did not relate to evidence that the Crown intended to lead at trial. As I have already mentioned, Bard was not a witness to the events covered by the indictment. His notes, and his evidence, could not have affected the verdicts returned by the jury.
131. In his address to the jury, as noted earlier, the appellant stated that "[t]here is no dispute as to the actual facts in this case in relation to the actual transactions that took place" [...] On the same note, he told the jury as well that "what the accused was doing was purchasing narcotics with funds provided with the R.C.M.P. for the R.C.M.P." [...]; that "[the jury has not] heard one iota of proof that the accused committed any offence, small or big, except with the R.C.M.P." [...]; and finally, that "[a]ll of the evidence, when looked at clearly, ...shows that the accused was purchasing for the R.C.M.P. and that [the] accused,...furnished with the money to make the purchase, gave these particular items to Mr. Rivard." [...]
132. In this light, I am unable to see how the non-disclosure of Bard's notes could have affected the appellant's preparation of his defence at the guilt-innocence stage, since he did not challenge, let alone seek to contradict, the evidentiary basis of the Crown's case against him.
133. I mentioned at the outset that appellant's position before the jury was that, as regards the first three counts, he acted at all times as the agent of the purchaser. Concerning counts 4 and 5, appellant contended that the uncontested evidence did not, as a matter of law, constitute the offences of trafficking charged.
134. I also indicated that these "defences" are, for purely legal reasons, entirely devoid of merit. Even if acting for the purchaser, an accused is guilty of trafficking if, as in this case, he has carried out acts that are caught by the definition of "traffic" set out in section 2 of the Narcotic Control Act [...]
[38] For this Court to conclude that the documents sought by Mr. Pearson could have changed the verdict, so goes the argument made on behalf of the defendant, would undermine that finding of the Quebec Court of Appeal. It does not matter that the Court of Appeal did not know all the evidence allegedly concealed when reaching their decision in 1994, since Mr. Pearson had admitted the transactions. This was a critical factor in their decision, and it was upheld by the Supreme Court of Canada in 1999. There is, therefore, no room left for this Court to reach a different conclusion.
[39] Counsel for the defendant also stressed that Justice Boilard, who had the same evidence that was put before this Court, did not believe Mr. Pearson's story of entrapment and found that it was not corroborated by the evidence of Bard. To use Justice Boilard's words, "[t]he evidence of Bard that had not been presented to Justice Hannan did not change one iota of or shed new light on the facts summarized by Justice Fish at pages 540-548" (page 6). This ruling, again, was confirmed by the Quebec Court of Appeal, despite Mr. Pearson's valiant efforts to reverse it. It is now too late, according to the defendant, to revisit all these decisions; the plaintiff is only allowed one kick at the can.
[40] Alternatively, the defendant argued that even if I am not foreclosed by the Quebec courts' decisions from reopening the remedies to which Mr. Pearson should be entitled as a result of non-disclosure, I should not grant damages since no fault has been established. In Mr. Savary's submissions, the violation of a Charter right does not automatically translate into damages. There is no parallel regime of damages under the Charter alongside the one determined in accordance with the law of the province in which the cause of action arose. Therefore, Mr. Pearson would have to meet the criteria set forth by the Civil Code of Québec, that is he must establish a fault, damage, and a causal link between that fault and the damage.
[41] Mr. Pearson was unable to demonstrate that the Crown officers, be they crown attorneys or R.C.M.P. agents, committed a fault. First of all, the decision of the Supreme Court of Canada in R. v. Stinchcombe, above, which expanded the obligations of the Crown with respect to disclosure of documents, came out after the completion of the first trial before Justice Hannan. The Crown can certainly not be blamed for having complied with the law as it stood at the time the trial took place. As for the alleged fraudulent documents and false evidence given by R.C.M.P. officers, nothing of the kind was established by Mr. Pearson in the course of this trial. The alleged contradictions in the testimonies of some witnesses between what they have said in front of Justice Boilard and in this Court are at best discrepancies of no significance, and of no relevance to the issue of guilt.
[42] Finally, Mr. Savary submitted on behalf of the defendant that there is absolutely no concrete evidence with respect to the material or psychological damages that Mr. Pearson has suffered. But more importantly, it would be impossible to draw a connection between the non-disclosure and the loss of income that Mr. Pearson would have suffered without