Date: 20020926
Docket: A-534-00
Neutral citation: 2002 FCA 348
CORAM: DESJARDINS, J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AND OFFICER NO. 1, OFFICER NO. 2, OFFICER NO. 3,
OFFICER NO. 4 and OFFICER NO. 5
Appellants
- and -
JACK SMITH, FIONA SMITH, ALBERT SMITH,
BEN SMITH, CORY SMITH, DAVID SMITH,
ERIC SMITH and FRED SMITH
Respondents
Heard at Edmonton, Alberta, on September 23, 2002.
Judgment delivered at Edmonton, Alberta, on September 26, 2002.
REASONS FOR JUDGMENT BY: SEXTON, J.A.
CONCURRED IN BY: DESJARDINS, J.A.
SHARLOW, J.A.
Date: 20020926
Docket: A-534-00
Neutral citation: 2002 FCA 348
CORAM: DESJARDINS, J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AND OFFICER NO. 1, OFFICER NO. 2, OFFICER NO. 3,
OFFICER NO. 4 and OFFICER NO. 5
Appellants
- and -
JACK SMITH, FIONA SMITH, ALBERT SMITH,
BEN SMITH, CORY SMITH, DAVID SMITH,
ERIC SMITH and FRED SMITH
Respondents
REASONS FOR JUDGMENT
This is an appeal against the order of Hansen J. dated August 28, 2000, dismissing the Crown's motion to strike the officers (named as defendants) from the respondents' statement of claim. The respondents did not reply to the Crown's motion at the Trial Division and did not file a response to the Crown's appeal although, on the appeal, counsel appeared for the respondents and addressed the Court.
This action was commenced under fictitious names, as the plaintiffs (the respondents to this appeal) needed security and protection for their own identities and that of their families.
II FACTS
According to the statement of claim, Jack Smith was an undercover agent in a drug sting for the Royal Canadian Mounted Police (RCMP). Fiona Smith is his wife. The remaining respondents are the children of Jack and Fiona Smith.
It is alleged in the statement of claim that, in February 1996, Jack Smith was exposed as an agent when the undercover operation prematurely concluded. The respondents claim that, as a result of this exposure, Jack Smith's son was murdered in a City of Canada by a vengeful person involved in the illegal drug trade. The respondents claim that they live in a perpetual state of fear that their identities will be exposed unless the RCMP continue to protect them under the Witness Protection Program.
Therefore, the respondents are suing the Crown and the five RCMP officers with whom they dealt personally for negligence, undue influence, and breach of fiduciary, statutory and contractual duties in relation to the plaintiffs' rights under the Witness Protection Program Act, S.C. 1996 ch. 15. The respondents allege in their statement of claim that all of the officers named were members of the RCMP and acted as officers, employees or agents of Her Majesty.
According to the respondents, the alleged roles of the officers are as follows:
OFFICER NO. 1- recruited Jack Smith as an undercover operator and was responsible for advising him, protecting him and his family and providing all those measures referred to in paragraph 6 of the herein Statement of Claim. He also had the duty to provide those items and measures to the Plaintiffs as referred to in paragraph 10 and he had complete knowledge of:
i) the Plaintiff and his family as referred to in paragraphs 1 to 5 hereof;
ii) had knowledge of the probable exposure and danger to which the Plaintiffs were likely to be exposed;
iii) knew of the habits, methods and working of the illegal drug trade and of criminals generally
OFFICERS NO. 2, NO. 3 AND NO. 4 were responsible for the protection of the Plaintiffs in accordance with the Witness Protection Program Act, and in accordance with the policy, directives and procedures of the RCMP for persons such as Jack Smith and their families.
[7] The relief sought by the respondents in the statement of claim is as follows:
An Order for Mandamus requiring that Her Majesty forthwith re-instate all of the Plaintiffs to the Witness Protection Program whereby all will receive:
i) Temporary and/or permanent new identities
ii) Adequate accommodation, remuneration and protection
B. An Order as in (A) above;
C. Damages in the sum of $100,000.00 each;
D. Such further and other relief as this Honourable Court may deem meet.
[8] The Crown brought a motion pursuant to Rule 221 of the Federal Court Rules, 1998 to strike the named officers from the respondents' statement of claim on the basis that the Federal Court has no jurisdiction to determine the claims against the individual officers. The Crown does not dispute, however, that the Federal Court has jurisdiction over the respondents' claim against Her Majesty the Queen in Right of Canada.
III. RELEVANT STATUTORY PROVISIONS
Federal Court Act, R.S.C. 1985, C. F-7
17. (5) The Trial Division has concurrent original jurisdiction
[...]
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown.
Witness Protection Program Act, S.C. 1996, c. 15
8. A protection agreement is deemed to include an obligation
(a) on the part of the Commissioner, to take such reasonable steps as are necessary to provide the protection referred to in the agreement to the protectee
11. (1) Subject to this section, no person shall knowingly disclose, directly or indirectly, information about the location or a change of identity of a protectee or former protectee.
V. ANALYSIS
Does the Federal Court have the Jurisdiction to determine the Matter against the Individually Named Officers
The Applicable Law
[9] The applicable law as set out by the Supreme Court of Canada in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752 demonstrates that the test for whether an action may be brought in the Federal Court includes the following elements:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.[1]
[10] The appellants state that there is no statutory grant of jurisdiction from the federal Parliament which would support the present action. I do not agree with this submission, as it seems clear from section 17(5)(b) of the Federal Court Act that the Federal Parliament granted a statutory power to the Federal Court with respect to claims against servants of the Crown.
[11] However, the claim against the servant or officer must also be supported by existing and applicable federal law.
[12] It is my view that the essence of the plaintiff's claims are supported by a body of existing and applicable federal law. That body of federal law is contained in the federal statute, the Witness Protection Program Act, S.C. 1996, ch. 15 which came into force on June 20, 1996, but by reason of s.19 of that statute applies to agreements entered into prior to that date. S. 8 of that statute provides as follows:
8. A protection agreement is deemed to include an obligation
(a) on the part of the Commissioner, to take such reasonable steps as are necessary to provide the protection referred to in the agreement to the protectee; and
[13] The allegations against the officers are that the plaintiff, Jack Smith, was recruited by them and promised protection for him and his family (the co-plaintiffs) under the Witness Protection Program Act and that the plaintiff having fulfilled his obligations pursuant to the agreement, the plaintiffs are entitled to the protection of that Act. The plaintiff, Jack Smith, goes on to allege that the officers were responsible for the protection of the plaintiffs in accordance with that Act and in accordance with the policies and directives and procedures of the R.C.M.P. The relief sought includes an order requiring that the plaintiffs be reinstated in the Witness Protection Program with the ensuing benefits provided by that Act.
[14] It seems to me this case is governed by the decision of this Court in Oag v. Canada [1987] 2 F.C. 511. In that case the plaintiff commenced an action in the Trial Division claiming damages for false arrest and imprisonment alleging that he had become entitled to be released on mandatory supervision pursuant to the Parole Act and the Penitentiary Act. The issue before the Court was whether there was jurisdiction to entertain the plaintiff's claims against the individual members of the National Parole Board who had participated in the decision of the Board suspending the mandatory supervision release. The Court held that it had jurisdiction to consider the claim against the individual Board members. It was held that the source of the plaintiff's freedom at the time of his alleged false arrest and imprisonment could be found in federal law in various provisions of the Penitentiary Act and the Parole Act and that the torts alleged, depended for their existence upon federal law with the consequence that any provable damages resulting from their commission were recoverable under federal law. It seems to me that case governs the present one. It could well be said that the plaintiffs were entitled to the benefits of the Witness Protection Program Act provided they complied with the terms of the agreement which had been entered into and that the legal wrongs alleged in connection with such agreement depended for their existence upon the federal law contained in that Act.
[15] The appellants argued that the case of Robinson v. Canada [1996] 2 F.C. 624 affirmed [1996] F.C.J. No. 1524 effectively distinguished the Oag case. The Prothonotary in speaking about Oag said this:
"The Court of Appeal in Oag applied the three-part test laid down in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. et al. (supra) and then pointed to the detailed statutory framework, which included mandatory provisions entitling Mr. Oag to a partial degree of freedom which might not be interfered with and in the Parole Act [R.S.C. 1970, c. P-2] satisfied the second requirement of the International Terminal Operators test, that there be an existing body of federal law essential for the disposition of the case and which nourishes the statutory grant of jurisdiction."
[16] It seems to me that in the present case there is similar statutory framework in the Witness Protection Program Act which satisfies the second and third requirements of the ITO test that there be an existing body of federal law essential for the disposition of the case and which nourishes the statutory grant of jurisdiction.
[17] Similarly, the appellants argued that the decision of this Court in The College of Physicians and Surgeons of British Columbia v. Varnam [1988] 2 F.C. 454 also distinguished Oag in such a way as to make it inapplicable to the present case. It is true that Justice Hugessen speaking for the Court did distinguish the Oag case:
"The case of Oag v Canada, [1987] 2 F.C. 511 (C.A.), relied on by the Trial Judge, is clearly distinguishable: Oag's claim was that the defendant Crown officers had acted illegally and contrary to a federal statute (the Parole Act [R.S.C. 1970, C. P-2]) in such a way as to deprive him of a freedom to which he was entitled solely by the operation of another federal statute (the Penitentiary Act [1970, c. P-6]). Thus not only did the damage which he suffered consist solely in the deprivation of a right whose only source was a federal statute but the deprivation itself was caused solely by the alleged abuse by federal officers of their powers under another federal statute. A mere consultation such as is required by section 58 of the Narcotic Control Regulations seems to me to be far too thin a thread on which to hand the jurisdiction of this Court"
[18] I do not disagree with the distinguishing features pointed out by Hugessen, J. I would point out that in fact the distinguishing features that he points out seem to correlate closely with the facts of the present case. By this I mean that the damage alleged consists in the deprivation of rights under the Witness Protection Program Act which is a federal statute and that the deprivation of these rights was caused by the alleged abuse by federal officers of their powers under that Act.
[19] It is therefore my view that both the second and third elements set out in the ITO case in the Supreme Court of Canada have been met.
[20] The appeal will therefore be dismissed.
"J. Edgar Sexton"
J.A.
EDMONTON, Alberta
September 26, 2002.
"I concur."
"A. Desjardins"
J.A.
"I agree"
"K. Sharlow, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-534-00
STYLE OF CAUSE: Her Majesty the Queen in Right of Canada and Officer
No. 1, Officer No. 2, Officer No. 3, Officer No. 4 and
Officer No. 5 v. Jack Smith, Fiona Smith, Albert
Smith, Ben Smith, Cory Smith, David Smith, Eric Smith
and Fred Smith
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 23, 2002
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: DESJARDINS J.A., SHARLOW J.A.
DATED: September 26, 2002
APPEARANCES:
Ms. Christine Ashcroft FOR THE APPELLANT
Mr. Alan R. Collins FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPELLANT
Deputy Attorney General of Canada
Mr. Alan R. Collins FOR THE RESPONDENT
Edmonton, Alberta