CITATION: Canada (Attorney General) v. Tremblay, 2011 ONSC 3763
DIVISIONAL COURT FILE NO.: DC-10-00001693
DATE: 2011/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., VALIN and ARRELL J.J.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
– and –
JEAN-GUY TREMBLAY
Respondent
Alexandre Kaufman and Max Binnie, for the Appellant
Paolo Giancaterino, for the Respondent
HEARD: June 15, 2011
BY THE COURT:
[1] The respondent Jean-Guy Tremblay commenced action against the Attorney General of Canada (the “appellant”) and the Ottawa Police Services Board for damages for false imprisonment. The Attorney General of Canada brought a motion for summary judgment dismissing the respondent’s action against it. The Ottawa Police Services Board took no part in the motion.
[2] On August 24, 2010, Ratushny J. dismissed the motion for summary judgment. This is an appeal from that interlocutory order. For the reasons that follow, the appeal must succeed.
[3] On August 3, 2000, the respondent was designated a long term offender under the Criminal Code of Canada. The determinate portion of his sentence was four years, followed by a long term supervision order (“LTSO”).
[4] The respondent completed the determinate portion of his sentence on June 30, 2005. The LTSO began to operate on that date.
[5] On April 18, 2006, the respondent’s parole officer suspended the LTSO for an alleged breach by the respondent of his LTSO conditions. The parole officer issued a warrant of apprehension and suspension of the respondent’s LTSO (the “suspension warrant”) under section 135(1)(c) of the Corrections and Conditional Releases Act (the “Act”).
[6] As of that date, the respondent was held in custody under the suspension warrant. He was later transferred to Joyceville Institution (“Joyceville”), a federal penitentiary for which the appellant is responsible.
[7] On June 12, 2006, the Ottawa police charged the respondent under section 753.3 of the Criminal Code of Canada for breaching his LTSO. When that charge was laid, the suspension warrant that had held the respondent in custody expired on that date by operation of section 135.1(1)(c) of the Act.
[8] That same day, the Ottawa police obtained a judge’s order pursuant to section 527 of the Criminal Code (the “order to produce”) to have the respondent brought from Joyceville to the Ottawa courthouse on July 13, 2006 for a show cause hearing on the LTSO breach charge.
[9] The order to produce was directed to the Keeper of the Joyceville Institution. The order stated: “It is hereby directed that the said prisoner be kept in custody in the manner in which accused persons who are remanded from time to time are kept in custody, so long as his/her attendance is required...” (the “direction”).
[10] The respondent was held in custody at Joyceville from June 12 to July 13, 2006. In his statement of claim, he alleges that he was wrongfully imprisoned for that 31 day period.
[11] On July 13, 2006, the respondent was brought to the Ottawa courthouse pursuant to the order to produce. After his first appearance on that date, the respondent was denied bail following a judicial interim release hearing.
[12] The motion judge found that the order to produce was not a warrant of committal authorizing the jailer to keep the respondent in custody. She found that, if there was an invalid detention, the order to produce could not make it valid. She concluded that the validity of the respondent’s 31 days of detention between June 12 and July 13, 2006 was a genuine issue for trial and dismissed the appellant’s motion for summary judgment.
[13] Questions of law are reviewable on a standard of correctness. The issue before the motion judge was whether correctional authorities are afforded immunity when complying with the order to produce issued by the Ontario Court of Justice on June 12, 2006. The parties to this appeal agree that is a question of law.
[14] Section 142 of the Courts of Justice Act states:
- A person is not liable for any act done in good faith in accordance with an order or process of a court in Ontario.
[15] Section 8 of the Public Authorities Protection Act (“PAPA”) states:
- No action or other proceeding shall be commenced or prosecuted against any person for or by reason of anything done in obedience to a mandamus or mandatory order.
[16] We agree with the submissions of counsel for the appellant that the purpose of the immunity provisions quoted from those two statutes is self-evident. Enforcing a court order involves interfering with another person’s interests with corresponding potential for civil liability. In order to ensure that court orders are complied with, the law provides an assurance to persons called upon to enforce court orders that no action will lie against them provided they acted in good faith.
[17] The motion judge held that the order to produce was not equivalent to a warrant of committal and that the Ottawa Police could have secured the respondent’s imprisonment by other means. For the purpose of this appeal, it is not necessary for us to comment on that finding.
[18] The order to produce issued by the Ontario Court of Justice on June 12, 2006 contained two directions. It required the Ottawa police to bring the respondent before a judge for a show cause hearing on July 13, 2006 and it directed the Keeper of Joyceville to keep him in custody until his attendance in court was required on July 13, 2006. The Keeper of Joyceville complied with that order. We are of the view that it does not matter if that order was issued inappropriately: Phillips v. Avena, 2006 ABCA 19 at para. 94 (AB C.A.); Pispidikis v. Scroggie, 2002 23209 at para. 50 (Ont. S.C.), (2003), 2003 27059 (ON CA), 68 O.R. (3d) 665 (C.A.).
[19] The immunity relied upon by the appellant can only be defeated by evidence of bad faith: Chidley Hill v. Daw, [2010] ONSC 1576 at para. 40 (Ont. S.C.). The respondent did not allege or refer to any evidence of bad faith. We find that the appellant is entitled to the protection of section 8 of the PAPA and section 142 of the Courts of Justice Act. In those circumstances, there is no genuine issue for trial.
[20] The appeal is therefore allowed. Summary judgment shall issue dismissing the respondent’s action against the appellant.
[21] The appellant is entitled to its costs which we hereby fix in the amount of $4,000 for the motion and the amount of $5,000 for the motion for leave to appeal and the appeal, for a total costs award of $9,000, inclusive of disbursements and HST. Those costs are payable by the respondent.
Cunningham A.C.J.
Valin J.
Arrell J.
Released: June 16, 2011
CITATION: Canada (Attorney General) v. Tremblay, 2011 ONSC 3763
DIVISIONAL COURT FILE NO.: DC-10-00001693
DATE: 2011/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., VALIN and ARRELL J.J.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
– and –
JEAN-GUY TREMBLAY
Respondent
REASONS FOR JUDGMENT
By the Court
Released: June 16, 2011