Case Name: Kelly v. Canada (Attorney General)

Transcription

1 Page 1 Case Name: Kelly v. Canada (Attorney General) Between Deborah J. Kelly, formerly Deborah J. Hawkes, Plaintiff (Responding Party), and Her Majesty the Queen by Right of the Government of Canada the Attorney General of Canada and Her Majesty the Queen by Right of the Government of Prince Edward Island the Attorney General of PEI, Defendants (Moving Parties) [2007] P.E.I.J. No PESCTD A.C.W.S. (3d) 96 Docket: S1-GS Prince Edward Island Supreme Court - Trial Division Charlottetown, Prince Edward Island B.B. Taylor J. Heard: November 1, Judgment: April 2, (66 paras.) Civil procedure -- Applications and motions -- Striking out pleadings -- Grounds -- Motion to strike Plaintiff's pleadings -- Crown argued the claim disclosed no reasonable cause of action and was vexatious and scandalous -- Pleadings struck in accordance with Rules 21.01, and of the Prince Edward Island Rules of Civil Procedure. Motions by the Governments of Canada and Prince Edward Island to strike the Plaintiff's claim -- Plaintiff claimed she was entitled to damages arising from her arrest on a charge of obstructing justice -- Plaintiff alleged her rights under s. 2 and s. 7 of the Charter had been violated, and that she

2 Page 2 had suffered from nervous shock and defamation -- Plaintiff also sought declarations that the Criminal Code of Canada and any statute of limitations barring her claims were ultra vires the Constitution and the Charter -- The Government of Canada claimed argued the claim was nonsensical and disclosed no reasonable cause of action -- HELD: Motions granted -- The Plaintiff's claim was struck in its entirety -- The claim disclosed no reasonable cause of action and violated the rules of pleadings -- The pleadings asserted claims for which the limitation period had expired -- Parts of the claim were frivolous, vexatious, scandalous and an abuse of process -- Costs awarded to the Government of Prince Edward Island on a substantial indemnity basis. Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982 Prince Edward Island Rules of Civil Procedure, Rules of Court, Supreme Court of Prince Edward Island Statute of Limitations, R.S.P.E.I. 1988, Cap. S-7 Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10 Court Summary: Practice -- Rule Determination of an issue before trial -- Striking out statement of claim as disclosing no reasonable cause of action -- Rules and Rules of pleading - Striking out pleading - Scandalous, frivolous, vexatious, abuse of process. Costs -- Substantial indemnity costs -- Reprehensible conduct by plaintiff. Defamation -- Elements -- Privilege. Statute of Limitation ss. 2(1)(c) and 2(1)(d) -- Claims barred - Whether Statute of Limitation violates the Charter -- Limitation period for Charter claims. Nervous shock -- Elements -- Injury to psychological integrity -- Security of person under s. 7 of Charter -- Elements. Cases cited: R. v. Romanowicz, (1999) 138 C.C.C. (3d) 225 (Ont. C.A.). Canadian Broadcasting Corporation v. New Brunswick (Attorney General) (Re R. v. Carson), [1996] S.C.J. No. 38 (S.C.C.). Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139.

3 Page 3 Clow v. MacNevin and Smith (1986), 60 Nfld. and P.E.I.R Morin v. Prince Edward Island et al. (1990), 78 Nfld. and P.E.I.R. 88 (P.E.I.S.C.T.D.). Kay Aviation B.V. v. Rofe, [2001] P.E.I.J. No. 48 (P.E.S.C.-A.D.). Central Trust Co. v. Rafuse, [1986] 2 S.C.R Vana v. Tostra, [1968] S.C.R. 71 (S.C.C.). McLoughlin v. O'Brien, [1982] 2 All E.R Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, [2000] 2 W.W.R. 12 (B.C.C.A.). Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907, [1991] H.L.J. No. 44. New Brunswick (Minister of Health and Community Services) v. G.(J.) [J.G.], [1999] S.C.J. No. 47 (S.C.C.). LeClair v. Goulette, [2000] N.B.J. No M.(K.) v. M.(H.), [1992] 3 S.C.R. 6. Murphy v. Welsh; Stoddard v. Watson, [1993] 2 S.C.R St. Onge v. Canada, [1999] F.C.J. No (F.C.C.-T.D.). Pearson v. Canada, [2006] F.C.J. No Matheson v. Presbytery of Prince Edward Island, [2003] P.E.I.J. No. 106 (P.E.S.C.T.D.). Commercial Union Life Assurance Co. of Canada v. John Ingle Insurance Group Inc., [2001] O.J. No. 65 (Ont. S.C.). Carruthers Enterprises Ltd. (c.o.b Action Press) v. Prince Edward Island Teachers' Federation, [2002] P.E.I.J. No. 2 (P.E.S.C.T.D.). Chrysler Canada Ltd. v. Rivercourt Developments Inc., [1995] O.J. No (Ont. C.J. - Gen. Div.). Statutes cited: Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.

4 Page 4 Statute of Limitations, R.S.P.E.I. 1988, Cap. S-7. Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10. Rules cited: Prince Edward Island Rules of Civil Procedure, Rules of Court, Supreme Court of Prince Edward Island. Texts cited: Beverley G. Smith: Professional Conduct for Lawyers and Judges 2d ed. (2002), Maritime Law Book Ltd. Criminal Code, R.S.C. 1985, Chap. c-46. Beaudoin and Mendes: Canadian Charter of Rights and Freedoms (4th ed, 2005). Counsel: Deborah J. Kelly Present and Appeared on her Own Behalf. Ruth Demone Government of Prince Edward Island and Attorney General of Prince Edward Island. Sandra Doucette Attorney General of Canada. 1 B.B. TAYLOR J.:-- This decision follows two motions seeking dismissal of the May 11, 2006 statement of claim of the plaintiff Deborah Kelly, formerly Deborah J. Hawkes: 1) A motion by the defendant Attorney General of Canada dated June 13, 2006 to strike out the plaintiffs statement of claim pursuant to Rule 21 (Determination of an Issue Before Trial), specifically 21.01(1)(b) and 21.01(3)(d), and Rule (Striking out a Pleading or Other Document) of the Rules of Civil Procedure; and 2) A motion by the defendants Government of Prince Edward Island and Attorney General of Prince Edward Island dated July 12, 2006 seeking the same relief as the Attorney General of Canada, together with a determination pursuant to Rule 21.01(1)(a) the plaintiff's claim is statute barred by virtue of s. 2(1)(d) of the Statute of Limitations. 2 For the reasons set out below, the defendants' motions are granted. The plaintiff's statement of

5 Page 5 claim is struck out in its entirety. BACKGROUND 3 The plaintiff's statement of claim seeks general, special, punitive, and aggravated damages, altogether totalling in excess of $700,000 for negligent or intentional tortious acts, and for breach of ss. 2 and 7 of the Canadian Charter of Rights and Freedoms. The claim also seeks: a) an ombudsperson to peruse the claim for possible amendments; b) a declaration any statute of limitation barring the claim be declared ultra vires the Constitution and Charter; c) a declaration the Criminal Code (Canada) R.S.C., 1985, c. C-46 is ultra vires the Constitution and Charter; d) that henceforth all proceedings at any RCMP or City Police detachment be under video surveillance; e) appointment of ombudspersons to be present to ensure the rights of an accused are respected; f) compensation for lower or middle class people for expenses associated with court appearances "for any criminal charge related reason"; g) abolition of federal and provincial correctional centres, to be replaced with healing centres; and h) an order requiring the resignation of one provincial court judge, one crown prosecutor, one deputy sheriff and two RCMP officers, all to be treated at a healing centre. 4 According to the statement of claim, the acts giving rise to this claim began on August 18, 2001 [actually 2003]. On that day, the plaintiff was at her home in Montague, Prince Edward Island with Mr. Blair Ross, when a number of RCMP officers came to arrest Mr. Ross for what the plaintiff describes as "criminal intent". The plaintiff claims she was forced to watch RCMP officers threaten Mr. Ross, then was herself threatened with a taser, arrested, handcuffed, taken to the RCMP detachment, placed in a holding cell, charged with obstructing a police officer, then released to find her own way home. 5 On August 21, 2003 the plaintiff went to court for Mr. Ross's "pre-trial hearing in order for him to have a witness" and to aid Mr. Ross. I take it the plaintiff means she was there to witness whatever was going to happen to Mr. Ross, since it makes no sense to think Mr. Ross's trial would be scheduled to take place three days after his arrest. Next, as the plaintiff puts it, "... when the plaintiff was exercising her right to freedom of thought, belief, opinion and expression [the provincial court judge] threatened the plaintiff to have her forcibly removed from the courtroom..." The plaintiff says a deputy sheriff grabbed her arms and forcibly removed her from the courtroom. 6 On September 3, 2003, the plaintiff says she was forced to attend the RCMP detachment to be fingerprinted and have a "mug shot" taken. On September 25, 2003, the plaintiff says she was

6 Page 6 forced to attend court to plead "innocent". On November 6, 2003, the plaintiff says she went to court again, her trial was set for December 4, 2003, the plaintiff attended and "... [provincial court judge] proceeded with her trial and the trial of Mr. Ross, ex parte..." Although it does not say so in the claim, I gather from submissions of the parties the charge against the plaintiff Kelly was stayed. 7 In addition to negligence, at paragraphs the plaintiff asserts the events described above constitute 38 separate breaches of law or duty by the defendants. The alleged tortious acts and breaches of the criminal law are alphabetically listed by the plaintiff and include: abduction, assault, defamation, destruction of property, forcible confinement, harassment, police brutality, threats, and unlawful arrest. As well, she claims systemic negligence by the defendants, for putting her through all of this, failing to properly train their employees, and failing to properly deal with the whole situation. 8 The plaintiff concludes the statement of claim by asking the action be tried at a high school, not the courthouse. 9 The plaintiff filed a 133 paragraph affidavit in her respondent's motion record relating and arguing her version of what happened to her. 10 The defendant Government of Canada describes the plaintiff's claim as nonsensical, and says "... the Plaintiff's attempt to establish a claim in negligence likely stems from a charge of obstruction under the Criminal Code of Canada which was ultimately stayed by the Crown". Charter, Statutes and Rules 11 The Charter sections, Statutes, and Rules relevant to this motion are as follows: 1) Sections 2 and 7 of the Canadian Charter of Rights and Freedoms Schedule B, Constitution Act, 1982, state: Fundamental Freedoms 2. Everyone has the following fundamental freedoms:... b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;... Legal Rights 7. Everyone has the right to life, liberty and security of the person and the

7 Page 7 right not to be deprived thereof except in accordance with the principles of fundamental justice. 2) Sections 2(1)(c) and 2(1)(d) of the Statute of Limitations, R.S.P.E.I. 1988, Cap. S-7 state: PART I LIMITATION PERIODS 2(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned:... (c) (d) actions of defamation, whether libel or slander, within two years of the publication of the libel or the speaking of the slanderous words or where special damage is the gist of the action, within two years after the occurrence of such damage; actions for trespass to the person, assault, battery, wounding or other injury to the person, whether arising from an unlawful act or from negligence, or for false imprisonment, or for malicious prosecution within two years after the cause of action arose; 3) Rules 21.01(1)(a), 21.01(1)(b), 21.01(2) - procedure, 21.01(3)(d), and Rule state: RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL WHERE AVAILABLE To any Party on a Question of Law 21.01(1) A party may move before a judge, (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may

8 Page 8 (b) dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly. (2) No evidence is admissible on a motion, (a) (b) under clause (1)(a), except with leave of a judge or on consent of the parties; under clause (1)(b). To Defendant (3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,... Action Frivolous, Vexatious or Abuse of Process (d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or gran judgment accordingly. STRIKING OUT A PLEADING OR OTHER DOCUMENT The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

9 Page 9 (a) (b) (c) may prejudice or delay the fair trial of the action; is scandalous, frivolous or vexatious; or is an abuse of the process of the court. ISSUES a) Claim under s. 2 of the Charter 12 So far as I can determine, the claim contains only one alleged violation of s. 2 of the Charter. Paragraph 10 of the claim states on August 21, 2003 the plaintiff attended "the pre-trial hearing of Mr. Ross in order for him to have a witness or to otherwise aid him... and when the plaintiff was exercising her right to freedom of thought, belief, opinion and expression [the provincial court judge] threatened the plaintiff to have her forcibly removed from the courtroom..." [Emphasis added] The plaintiff asserts while she was getting ready to leave, a deputy sheriff seized her by the arms and forcibly removed her from the courtroom. 13 The plaintiff does not say what she was doing or saying in the court room. Rather, she asserts whatever she was doing or saying was a freedom of opinion or expression protected by the Charter. This assertion is a legal conclusion, not a material fact. On that basis, this part of the claim violates Rules 25.06(1) and 25.06(2), which state: 25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for his or her claim or defence, but not the evidence by which those facts are to be proved. Pleading Law 14 Rule 21.01(1)(b) states: (2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded (1) A party may move before a judge,...

10 Page 10 (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly. 15 Because it violates the Rules, the claim under s. 2 of the Charter should be struck out. However, because the plaintiff is self-represented, I have taken the additional step of attempting to consider whether, based on the stated facts, better drafting could describe a viable claim. 16 I gather the plaintiff was expressing herself verbally or physically or both in the courtroom on August 21, 2003, during a provincial court proceeding in which she was not the defendant. The plaintiff filed a lengthy affidavit in this motion, and paragraphs of the affidavit deal with the events of August 21, Rule 21.01(2)(b) states no evidence is admissible on a motion under Rule 21.01(1)(b) but since the pleadings are deficient, I have referred to paragraphs of the affidavit to provide some context for analysis of the pleadings. Ms. Kelly says there is a transcript of the August 21, 2003 proceedings. She did not provide it to the court on this motion, but according to Ms. Kelly's statements at paragraph 42 of her affidavit, Ms. Kelly was present and participating in some fashion at Mr. Ross's court appearance at various points in 20 pages of transcript, during which time Ms. Kelly twice stated her desire or intention to have the provincial court judge arrested and charged with assault for not releasing Mr. Ross. I gather the plaintiff was told to be quiet, the plaintiff would not, and the provincial court judge told her to leave or she would be escorted out. The plaintiff did not leave as promptly as the judge wanted, or continued to express herself, or both, and was escorted out. It sounds like it was quite a scene. 17 Judges have both the common law and statutory right to maintain order in their court rooms (Beverley G. Smith, Professional Conduct for Lawyers and Judges 2d ed. (2002), Maritime Law Book Ltd. at chapter 14, paragraphs 23-24). In criminal proceedings, s. 486(1) of the Criminal Code, R.S.C. 1985, Chap. C-46 states in part: 486(1)Any proceedings against an accused shall be held in open court, but where the presiding... provincial court judge... is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice... to exclude all or any members of the public from the court room for all or part of the proceedings, he or she may so order. 18 If Mr. Ross had been charged with a summary conviction offence, he might have been able to be represented by an agent pursuant to s. 800(2) of the Criminal Code, but the provincial court judge could disqualify the agent where the agent's appearance would be inconsistent with the proper administration of justice, and such disqualification could be based on the agent's competence in the

11 Page 11 law (R. v. Romanowicz, (1999) 138 C.C.C. (3d) 225 (Ont. C.A.)). On this motion, I have no certain information about the charge against Mr. Ross and nothing to suggest Ms. Kelly was Mr. Ross's agent or had any standing in court. 19 Section 2(b) of the Charter deals with thought, belief, opinion and expression. There is nothing in the claim to suggest the plaintiff's freedom of thought or belief were constrained. As to opinion and expression, it is trite to say the freedom granted by the Charter does not include the right to freedom of expression and opinion at any time, any place, and for any duration of time. More specifically, it does not extend to allowing a non-party to a criminal case to monopolize the proceedings. Section 2(b) of the Charter has been held to include the right to access to judicial proceedings but does not include the right to unfettered participation in those proceedings, or indeed the right to any participation where non-parties are concerned. 20 Our courts are traditionally used as forums for the voicing of opinion and expression, but only persons with standing in the matter being heard have this right. Standing or "locus standi" generally refers to a person's right to appear and be heard in a court. Usually the right is limited to people who have a stake in the proceedings. The term "persons with standing" is limited to the parties and their counsel. Even then, judges have the right to regulate or put a stop to any expression or conduct if necessary to maintain order. 21 In Canadian Broadcasting Corporation v. New Brunswick (Attorney General) (Re R. v. Carson), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38 (S.C.C.) the Supreme Court considered a sexual assault case in which the trial judge barred the media and the public from the part of the sentencing proceedings describing the specific acts of the accused. An open court is part of the foundation of our legal system, and this case dealt with the public's access to court proceedings. The decision upheld 486(1) of the Criminal Code, which codifies a judge's right to take action to ensure the proper administration of justice. The Supreme Court found s. 486(1) of the Codeviolated s. 2(b) of the Charterby restricting freedom of expression in allowing the courts to bar public and media access to the courts, but the provision was justifiable under s. 1 because it constituted a reasonable limit on s. 2(b) of the Charter, provided the impairment on s. 2(b) rights was what was minimally necessary to serve the interests of the proper administration of justice. In the end result, the public and media were allowed access to the transcript. 22 In this case, according to the plaintiff's statement of claim and affidavit, Ms. Kelly was not ordered out of court over a question of access: she could have sat quietly in the audience and viewed the proceedings. Instead, although she was not a party to any court proceeding that day and had no standing, she apparently insisted upon participating, even to the extent of threatening the judge. After being allowed to carry on for some time, she was expelled. 23 Beaudoin and Mendes, Canadian Charter of Rights and Freedoms (4th ed, 2005) states at page 294: In a flourishing democratic society, expressive activities can be expected to take

12 Page 12 place anywhere and at any time. Streets and parks are the types of preferred places for public displays of expression and are particularly important for the less powerful who cannot afford to rent private halls or purchase advertising space. What about publicly owned property not ordinarily viewed as forums for expression, such as inside courthouses and government offices? In these instances, it would have been expected that Canadian courts would look to the "public forum" doctrine in the U.S. The rule there permits the use of government-owned property for speech purposes so long as they are traditionally used or designated as public forums. 24 Beaudoin and Mendes say our Supreme Court has not adopted the U.S. public forum doctrine, but has yet to agree on another doctrine. The authors refer to the comments of Lamer, C.J., McLachlin J., and L'Heureux Dubé in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at pages , and state at pages :... According to Lamer C.J.C., freedom of expression "is intrinsically limited by the function" of the public place. In circumstances where a form of expression is incompatible with the purpose or function of the public property at issue, that expression will fall outside section 2(b). No one, for instance, could claim that the freedom of expression guarantee entitled one to shout political messages in the quiet of the Library of Parliament, wrote the Chief Justice. Forms of expression, instead, had to correspond to the use to which the place was put. If expression was compatible with function, then the Court could proceed to the section 1 stage of analysis. Then a court could consider whether other governmental interests, such as the maintenance of law and order, could justify the infringement on expression. On the other hand, in Committee for the Commonwealth of Canada, McLachlin J. would find a ban on expression tied to content violated s. 2(b), but would then consider whether it was justified under s. 1. Like Lamer C.J., McLachlin J. also considered there would be forums where freedom of expression had no place, such as the Prime Minister's office, an airport control tower, or a prison cell. In the same case, L'Heureux Dubé would consider:... the traditional use of the property for expressive activity, whether the public ordinarily is admitted to the property as of right, the symbolic significance of the property, and the availability of other avenues for expression.... [G]overnment offices, air traffic control towers, prison cells and Judges' chambers would not be appropriate venues for freedom of expression.

13 Page In the end, the individual judges in Committee for the Commonwealth of Canada were agreed freedom of expression and opinion could not be exercised in certain public venues. They agreed on result but not on approach: Lamer, C.J. stated certain restrictions in certain venues did not violate s. 2(b); McLachlin J. and L'Heureux-Dubé J., in different decisions, said the restrictions did violate s. 2(b), but were justified under s. 1 of the Charter. 26 I feel certain the Supreme Court of Canada would give short shrift to persons without standing who came to the Supreme Court of Canada courtroom and insisted on voicing their opinions about the case being heard. There is nothing in this case to suggest the provincial court judge exceeded the discretionary common law and statutory powers. The actions taken by the provincial court judge to maintain order in the courtroom are either not a violation of s. 2(b), or those actions by the judge are justified by s. 1. Either way I am confident, based on the pleadings and the limited assertions provided by the plaintiff, the plaintiff's s. 2 claim cannot succeed. I dismiss the part of the claim asserting a violation of s. 2 of the Charter, both because it is improperly pleaded, and because it discloses no reasonable cause of action. b) Claims under s. 7 of the Charter 27 The plaintiff's statement of claim makes five references to s. 7 of the Charter: 1) at paragraph 1E the plaintiff claims damages for breach of s. 7. No particulars of the alleged breach are stated. The plaintiff misquotes s. 7 by leaving out "except"; 2) at paragraph 1F(2) the plaintiff seeks a declaration the Statute of Limitations is ultra vires the constitution, and in particular, s. 7 of the Charter; 3) at paragraph 1G the plaintiff seeks a declaration the Criminal Code is ultra vires the constitution and in particular s. 7 of the Charter. The plaintiff again misquotes s. 7 by leaving out "except"; 4) at paragraph 1G(I) the plaintiff seeks to have all procedures at police detachments videotaped in order to ensure s. 7 and 15 Charter rights; and 5) at paragraph 5 the plaintiff makes a general statement describing a duty of care the defendants owe to the plaintiff and uses the phrase "life, liberty and security", ("... of the person..." is omitted) 28 I will deal below with the claims for relief at paragraphs 1F(2), 1G and 1G(I) of the claim, but I note that nowhere in the plaintiff's statement of claim does the plaintiff identify any particulars of the alleged breach or breaches of s. 7 of the Charter. This failure by the plaintiff violates Rule 25.06(1). It is also a failure to plead any cause of action based on s. 7 of the Charter (Clow v. MacNevin and Smith (1986), 60 Nfld. and P.E.I.R. 358; Morin v. Prince Edward Island et al. (1990), 78 Nfld. and P.E.I.R. 88 (P.E.I.S.C.T.D.); Kay Aviation B.V. v. Rofe, [2001] P.E.I.J. No. 48

14 Page 14 (P.E.S.C.-A.D.)). Claims barred by s. 2(1)(d) of the Statute of Limitations 29 The claims of abduction, assault, forceable confinement, harassment, police brutality, threats and unlawful arrest, to the extent the facts asserted in the claim disclose anything on which to base these claims, amount to claims barred by s. 2(1)(d) of the Statute of Limitations, namely: "... trespass to the person, assault, battery, wounding, or other injury to the person, whether arising from unlawful act or negligence, or for false imprisonment, or for malicious prosecution..." The statement of claim was filed on May 11, 2006, more than two years after the events complained of, and more than two years after the plaintiff was aware of the material circumstances on which the claim was based (Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at paragraph 77). 30 At the hearing of the motion, the plaintiff stated she was not claiming for anything barred by s. 2(1)(d) of the Statute of Limitations. I have nevertheless dealt with this heading of claim because the plaintiff's assertions appear to be changeable. Defamation claim 31 At paragraphs 15(E), 16(E) and 16(J) the plaintiff asserts she was defamed by agents of the defendants, or the defendants failed to prevent her defamation, degradation and humiliation. At paragraph 9(c) the plaintiff says an RCMP Constable accused the plaintiff of willfully obstructing a peace officer "... knowing that the two local newspapers the Guardian and the Eastern Graphic would write articles in reference to the unlawful arrests". Paragraph 10 of the claim speaks of the August 21, 2003 court appearance when the plaintiff was escorted from the court and ends by saying "... an article was in the local newspaper". 32 The defamation claimed by the plaintiff appears to be unspecified statements made not by the defendants about the plaintiff, but rather by the media and other individuals about the plaintiff's court appearances. The claims against the defendants must fail because: a) no particulars are stated; b) court proceedings enjoy absolute privilege from defamation claims (as do media reports of these proceedings); c) the defendants and their agents did not make the statements, whatever those statements were; and d) the two-year limitation period under s. 2(1)(c) of the Statute of Limitations has expired. Destruction of property claim 33 So far as I can determine, the so-called destruction of plaintiff's property claim at paragraph 15(F) and 16(F) amounts only to a damages claim for expenses incurred by the plaintiff in travelling

15 Page 15 to or from the police station or the courthouse. This is not a separate cause of action. Damages are only recoverable once a cause of action is proven. Nervous Shock or Injury to Psychological Integrity 34 The plaintiff claims damages because she witnessed harm to other people and her emotional, physical, social and spiritual being were thereby traumatized. She says those others, especially Blair Ross, were harmed because they were traumatized by involvement in the judicial system. The plaintiff does not say she saw anyone being physically injured, or saw the aftermath of physical injury to anyone. 35 Nervous shock, or psychiatric illness, is a valid head of damages and arises from involvement in horrible situations involving, for example, death, injury, screams, blood and mutilation Vana v Tostra, [1968] S.C.R. 71 (S.C.C.). Nervous shock is an extreme reaction to an extreme situation. There are restrictive fact conditions which limit who can claim for damages arising from nervous shock. The restrictive fact conditions have been described as proximity factors. McLoughlin v. O'Brien, [1982] 2 All E.R. 298, 410 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, [2000] 2 W.W.R. 12 (B.C.C.A.). These proximity factors are: 1) geographic proximity; 2) temporal proximity; 3) causal proximity; and 4) relational proximity. 36 My analysis, based on assuming the truth of the facts in the statement of claim is as follows: 1) The plaintiff's claim meets the first of these factors, geographic proximity, which only amounts to saying she was there when whatever happened, happened. 2) Temporal proximity is a measure of the time between the event and the onset of injuries by the plaintiff. There is no information in the statement of claim on this factor. 3) Causal proximity considers how the horrifying features of the horrible situation are reasonably connected to the injuries suffered by the plaintiff. At this point the analysis breaks down, because the plaintiff is claiming damages for witnessing events no reasonable person would consider traumatic. At worst, arraignment day or summary conviction trials might be termed an unpleasant but necessary part of life. The plaintiff seemingly asserts her exquisite sensitivity makes her extraordinarily attuned to the misery of others, even strangers, and she is thus entitled to recover damages. Nervous shock claims must be reasonably foreseeable. Devji v. Burnaby (District). As well, the claims depend on the existence or risk of actual physical injuries to another, not the perceived or presumed mental distress of another. In Alcock v. Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907, [1991] H.L.J. No. 44, Lord Keith of Kinkel stated: "[Injury by psychiatric illness]... is a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person." 4) Relational proximity looks for a close relationship like husband-wife or mother-child between the plaintiff and the person who was physically injured or at risk of physical injury. There is no indication in the statement of claim the plaintiff and Mr. Ross are related by blood, married, living common law, or involved in a romantic relationship. Because Mr. Ross was in the plaintiff's house, I will assume they are friends or acquaintances. The other people in the courtroom who were allegedly traumatized are not named, and I presume they were strangers to the plaintiff.

16 Page The plaintiff has no reasonable cause of action based on the common law remedy of nervous shock, but I will address whether the plaintiff has a Charter claim for injury to her psychological integrity resulting from seeing others traumatized by the court process. 38 In New Brunswick (Minister of Health and Community Services) v. G.(J.) [J.G.], [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47 (S.C.C.), the Supreme Court of Canada considered, inter alia, whether a child protection case could trigger application of a parent's Charter rights. The Supreme Court found apprehension of a child could violate a parent's psychological integrity because of the sundering of the parent-child relationship, the "... gross intrusion into a private and intimate sphere..." (paragraph 61) and the stigma associated with being found to be an unfit parent. Lamer C.J. described the nature of a claim for harm to a person's psychological integrity under the Right to Security of the Person in section 7 of the Charter. At paragraphs 58-60, he stated: 58. This Court has held on a number of occasions that the right to security of the person protects "both the physical and psychological integrity of the individual": see R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings. Before addressing this issue, I will first make some general comments about the nature of the protection of "psychological integrity" included in the right to security of the person. 59. Delineating the boundaries protecting the individual's psychological integrity from state interference is an inexact science. Dickson C.J. in Morgentaler, supra, at p. 56, suggested that security of the person would be restricted through "serious state-imposed psychological stress" (emphasis added). Dickson C.J. was trying to convey something qualitative about the type of state interference that would rise to the level of an infringement of this right. It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected. Nor will every violation of a fundamental freedom guaranteed in s. 2 of the Charter amount to a restriction of security of the person For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness,

17 Page 17 but must be greater than ordinary stress or anxiety. [Emphasis added] 39 The plaintiff's claim for damages arising from watching others being traumatized by the court process does not meet the test established for a finding of a violation of section 7 of the Charter. Assessed objectively, and assuming the truth of what is said in the Statement of Claim, what the plaintiff describes could not have an effect greater than ordinary stress or anxiety on the psychological integrity of a person of reasonable sensibility. Moreover, there is no court decision which states a plaintiff may succeed in a claim for injury to her psychological integrity resulting in damages based on her empathy for the misery of others (or, in this case, something far less than misery). If there were, I am certain it would be restricted to immediate family and other intimate relationships, as is the case with nervous shock. 40 I note nervous shock or psychological integrity-type damages based on the alleged assault upon the plaintiff, and the alleged false imprisonment of the plaintiff, are different matters, but these claims, whether common law based or Charter based, are barred by the Statute of Limitations as discussed above. Does the Statute of Limitations Violate the Charter? 41 The plaintiff asks at paragraph 1(F) for "Relief pursuant to the Canadian Charter of Rights and Freedoms Section 24(1)". At paragraph 1(F)(2) she seeks a declaration "... any statute of limitations barring this statement of claim...[is] ultra vires the constitution, in particular section 7 of the Charter". 42 I will treat the plaintiff's words as meaning this: If any of the many claims or actions contained in the statement of claim are barred by the Statute of Limitations or any other statute, the statute(s) are, to the extent they bar my claims or actions, ultra vires the Constitutionand in violation of section 7 of the Charter. 43 The plaintiff sues over events which occurred between August 18, 2003 and December 4, The plaintiff was present for all of the events for which she claims and was fully aware of the events as they happened; she is an adult and was so in 2003, and does not claim to suffer any physical or mental disability, then or now, which would have interfered in any way with her understanding or appreciation of the events, the law, and her alleged injuries, or whom to blame. Notwithstanding this, she did not commence her action until May 11, 2006, a little over two years and five months after the last event for which she claims. 44 The plaintiff asserted at the hearing of this motion she was not claiming for anything barred by s. 2(1)(d) of the Statute of Limitations, so it is difficult to see how there is any basis to ask for such a declaration, but to give her as much leeway as possible, the general question is whether limitation periods violate the Charter right to life, liberty and security of the person. 45 In common law there were no limitation periods, LeClair v. Goulette, [2000] N.B.J. No. 107,

18 Page 18 and a plaintiff could sue for a civil wrong decades or even generations after the event. Limitation periods are procedural laws, specifying the time within which actions must be commenced. Limitation periods were established a) to correct the unfairness and other difficulties arising from endless potential liability; b) avoid time-based evidentiary problems; and c) to respond to the perception plaintiffs have a duty to get on with it. 46 The purpose of our Statute of Limitations was described in M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, which considered the Ontario Limitations Act, R.S.O. 1980, c. 240, but also had reference to every other province's limitation of actions legislation. At paragraphs LaForest J. stated:... In order to determine the time of accrual of the cause of action in a manner consistent with the purposes of the Limitations Act, I believe it is helpful to first examine its underlying rationales. There are three, and they may be described as the certainty, evidentiary, and diligence rationales... [First] statutes of limitations have long been said to be statutes of repose; see Doe on the demise of the Court Duroure v. Jones(1791), 4 T.R. 301, 100 E.R. 1031, and A'Court v. Cross (1825), 3 Bing. 329, 130 E.R The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim... Finally, plaintiffs are expected to act diligently and not "sleep on their rights"; statues of limitations are an incentive for plaintiffs to bring suit in a timely fashion In Murphy v. Welsh; Stoddard v. Watson, [1993] 2 S.C.R. 1069, Major J. quoted from M.(K.) v. M.(H.) and added at paragraph 11: While these rationales benefit the potential defendant, the Court also recognised that there must be fairness to the plaintiff as well. Hence, the reasonable discovery rule which prevents the injustice of a claim's being statute barred before the plaintiff becomes aware of its existence: Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; M.(K.) v. M.(H.), supra. A limitations scheme must attempt to balance the

19 Page 19 interests of both sides. 48 The Supreme Court of Canada has dealt repeatedly with the Statue of Limitations in its present form. Clearly, the Supreme Court accepts the basic soundness of the Statute of Limitations, subject to Central Trust Co. v. Rafuse, but leaves the door open on whether rare circumstances, previously unseen and unforeseen by Canadian Courts, may require more court imposed exceptions to the Statute of Limitations. There are no such circumstances identified or even suggested in this case. 49 The other question is whether Charter claims may be barred by the Statute of Limitations. Charter claims on civil matters are intended to fit within our existing civil court system. They do not require a new system or legislative regulatory basis, they exist within our Supreme Court Act, and our Statute of Limitations, to name only two of many. 50 In this case, I have found there is no basis for the s. 2 Charter claim, and no pleadings for the s. 7 Charter claim. If there were a s. 7 Charter claim, I expect it would have to be pleaded in relation to 1) the arrest charge and release of the plaintiff on August 18, 2003; 2) the ejection of the plaintiff from court on August 21, 2003; or 3) some other event occurring in relation to the charge against the plaintiff up to December 2003, when the charge was stayed. These claims might be framed as Charter violations, but they are also claims which are dealt with by thestatute of Limitations. This is not to say all s. 7 Charter claims have a two year limitation, rather, where they relate to established torts, they have the limitation period of that tort. 51 The limitation periods in question in this case are the two year limitations periods relating to the particular causes of action referred to above. The two year limitations are not objectionably short on their face; two year limitations are common for all kinds of tort actions in this and other Canadian jurisdictions. The limitation periods do not put the state or any group or class of litigants on a better footing than any others, and do not discriminate against specific litigants or classes of litigants. I conclude the limitation periods do not offend against the Charter or the Constitution. 52 In St. Onge v. Canada, [1999] F.C.J. No (F.C.C.-T.D.), Hugessen J. stated at paragraphs 4-5: In my view, there is absolutely no doubt that an action in tort based on delicts ["Delict" is generally taken to either encompass or be synonymous with "tort"] which are at the same time infringements of rights guaranteed by the Charter is subject to the prescription [i.e. the limitation period] generally applicable to any action of a delictual nature. The Charter was adopted in a context which already included two well-developed systems of civil law with sophisticated rules of procedure and the appropriate courts to give effect to them. The Charter contains no purely procedural provisions and no rule governing prescription. 5. Clearly, it does not follow from this that the Charter has completely destroyed existing systems and created a system in which no procedure or prescription

20 Page 20 exists. On the contrary, existing legislation and procedures continued to apply except where they were clearly inconsistent with the Charter itself. A prescription deadline which generally applies to all actions of the same nature and does not in any way discriminate against certain groups of litigants does not in any way contravene the Charter In Pearson v. Canada, [2006] F.C.J. No. 1175, the plaintiff alleged provincial time limitations could not apply to bar his claim as it was grounded in the Charter. In finding against the plaintiff, de Montigny J. noted at paragraph 46, "... the Supreme Court of Canada has not yet ruled explicitly on this question". De Montigny then went on to state, at paragraphs 50-51: there is a clear consensus that an award of damages contingent on a Charter violation must take place within the general legal regime of the province where the cause of action (or the alleged violation of a fundamental right) has taken place. This is to say that the rules governing evidence, procedure and jurisdiction related to this field of the law must generally find application, since the Charter itself does not provide a parallel architecture to that found in the various provincial and federal statutory schemes. 51. This is indeed the position followed by most courts of the country with respect to time limitations related to claims for damages resulting from a violation of a Charter right: McGillivary v. New Brunswick, (1994), 111 D.L.R. (4th) 483 (N.B.C.A.); Nagy v. Phillips, (1996), 137 D.L.R. (4th) 715 (Alta C.A.); Gauthier v.lac Brome (Ville), [1995] A.Q. no 762 (QL); Gauthier v. Lambert, [1988] R.D.J. 14 (Qué. C.A.); [1988] A.Q. no 56 (QL), application for leave to appeal to the Supreme Court denied on May 26, 1988, [1988] S.C.C.A. No (See also Matheson v. Presbytery of Prince Edward Island, [2003] P.E.I.J. No. 106 (P.E.S.C.T.D.) at paragraphs ) 54 De Montigny J. went on to observe cases reaching a different result did so because of the conclusion the state was attempting to insulate or immunize itself from claims by "... creating short draconian prescriptive periods" that would be a mere fraction of what would apply to any other claim. This concern does not apply to the limitation periods which apply to the plaintiff Kelly's claims. 55 De Montigny concluded this analysis by stating at paragraph 54:... prescriptions found in provincial and federal statutes are not, in and of themselves, antithetical to section 24(1) of the Charter. The purposes of limitation periods are as valid in the context of a Charter claim as they are for any other type of claims; a claimant should not be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right.... [Emphasis added]

21 Page 21 c) Other remedies claimed 56 The request for a declaration the Criminal Code is ultra vires the Constitution and s. 7 of the Charter is frivolous and vexatious, and appears to be based only on the plaintiff's frustrated response to the legal barriers to resolving the plaintiff's grievances in the manner the plaintiff would like. 57 As to the plaintiff's claims for police station videotaping, ombudspersons, an all expenses-paid legal system, and abolition of all correctional centres, the plaintiff may only claim for remedies for wrongs to her, not potential wrongs to others in future situations. The plaintiff's claims for anticipated wrongs requiring these remedies are frivolous and vexatious. 58 The claim seeks to force the resignation and treatment of various government employees. These employees are not parties to the action, and the claim against them is therefore scandalous in the legal sense. 59 As to the remainder of the 38 claims or heads of damages identified by the plaintiff, most are clearly variations on the headings I have addressed, others are mere contributory factors to, or contained within, causes of action if those causes of action were founded (see, for example, paragraphs 15(d), 15(M), 16(D), 16(M)). None disclose a reasonable cause of action. Conclusion 60 The plaintiff's statement of claim is struck out in its entirety for the reasons described above. The action: a) is, at various points, frivolous, vexatious, scandalous and an abuse of process in part; b) discloses no reasonable cause of action; c) violates the rules of pleadings and; d) asserts claims for which the limitation period has expired. Costs 61 Section 53(1) of the Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10 states: 53.(1) Subject to the express provisions of any statute, the costs of and incidental to all proceedings authorized to be taken in court or before a judge are in the discretion of the court or judge, and the court or judge has full power to determine by whom and by what extent the costs shall be paid. 62 The Attorney-General of Canada ("Canada") seeks $500 costs on this motion and is awarded that amount to be paid within 30 days pursuant to Rule Canada did not defend the action and so will not have any costs of the action. 63 The Government of Prince Edward Island and the Attorney-General of Prince Edward Island

22 Page 22 (together, "PEI") seek costs on a substantial indemnity basis to be fixed by the Court. PEI asserts substantial indemnity costs should be awarded in part to sanction or censure the plaintiff's conduct on this motion, in particular, the plaintiff's insulting language in her factum. At paragraphs 11, 13 and 14 of her factum, the plaintiff asserts counsel for Canada and PEI are "lower on the evolutionary scale" than she, because of their legal assertions on the motion. This was a calculated personal insult, stated repeatedly, and the plaintiff refused to withdraw it. As well, the plaintiff accused both the trial and appeal divisions of this court of corruption (affidavit, paragraph 6), and accused various persons of perjury who were not parties to this action, in some cases, those persons' involvement with the plaintiff was years before the events of this action. 64 In Commercial Union Life Assurance Co. of Canada v. John Ingle Insurance Group Inc., [2001] O.J. No. 65 (Ont. S.C.), Stinson J. stated at paragraphs 15 and 17: The authorities are clear that "it is only in the rare and exceptional case that costs are awarded on a solicitor-and-client scale rather than on a party-and-party scale": Mortimer v. Cameron (1994), 17 O.R. (3d) 1 at 23 (Court of Appeal). In Mortimer the Court of Appeal quoted with approval the following passage from Orkin, The Law of Costs, 2d ed. (1993), pp to 2-92: Costs on the solicitor-and-client scale should not be awarded unless special grounds exist to depart from the usual scale.... An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court's disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor-and-client costs has been enunciated thus: [S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement At the risk of over-generalizing, the cases in which such awards are made are ones in which the pre- or, intra-litigation conduct of the unsuccessful party can be described as "egregious", "offensive", or in the words used in the passage from Orkin quoted above, "reprehensible". The term "reprehensible" is defined in