T-2725-73
Otto Franz Heinrich Schulze, Dame Edith Else
Ruger (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, November
26, 1973; Ottawa, January 17, 1974.
Crown—Liability of Crown for acts of municipal and
provincial police officers—Kidnapping and murder—Duties
of police officers—Whether officers acting as agents or ser
vants of the Queen—Crown Liability Act, R.S.C. 1970, c.
C-38, ss. 3(1Xa), 4(2).
The plaintiffs commenced action against the Queen in
right of Canada, the Queen in right of the Province, the City
of Brossard and several police officers of that municipality
and the Province for the negligence of the police officers in
carrying out their duties when the plaintiffs' daughter was
kidnapped and then murdered. A motion was submitted to
the Court to determine whether the police officers can be
considered in law, agents or servants of the Queen in right
of Canada.
Held, the question is answered in the negative: the police
officers in question were not acting as agents or employees
of the Crown in right of Canada so as to engage its responsi
bility within the meaning of section 3(1) of the Crown
Liability Act.
La Cité de Montréal v. Plante (1923) 34 K.B. 137;
Hébert v. La Cité de Thetford Mines [1932] S.C.R. 424;
Roy v. The City of Thetford Mines [1954] S.C.R. 395,
discussed.
MOTION for determination of a question of
law.
COUNSEL:
M. Chaikelson for plaintiffs.
D. Bouffard for defendant.
SOLICITORS:
Chaikelson and Chaikelson, Montreal, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
WALSH J.—This is a motion submitted to the
Court in accordance with Rule 474 seeking an
answer to the following question of law before
trial:
Assuming all the allegations in the Statement of Claim to
be true can the peace officers alleged in Plaintiff's State
ment of Claim be considered in law, agents, servants and
employees of Her. Majesty the Queen in right of Canada?
Since the issue raised is a very important one
with consequences going far beyond the deter
mination of the specific claim in the present
case written argument was authorized and in
due course counsel for both parties submitted
very thorough and extensive notes.
With respect to the facts, it appears from
plaintiffs' amended statement of claim that they
claim damages in the amount of $100,000 from
Her Majesty the Queen in right of Canada,
defendant herein, as well as from the Attorney
General of the Province of Quebec representing
Her Majesty in right of the Province of Quebec,
the Ville de Brossard, Sergeant Roland Auclair,
Sergeant Roger Cloutier, Captain Bousquet,
Assistant Police Director Paul-Emile Blain, and
Police Director Marcel Renaud, none of whom
are defendants in the present proceedings how
ever. It is alleged that their daughter, Ursula
Schulze, was injured and died by the commis
sion of a quasi-offence through the combined
fault of the aforementioned peace officers who
at all times relative thereto were agents, ser
vants and employees of the federal government
and that Her Majesty the Queen is accordingly
responsible jointly and severally with all the
other persons mentioned. The said Ursula
Schulze, aged 19, was murdered in the Province
of Quebec, and it is alleged that the said murder
would not have occurred had the peace officers
named performed their respective duties in
accordance with their legal obligations. The
murder followed her kidnapping the day before
which was immediately reported to the Brossard
police with a description of the automobile into
which the victim had been forced by the kidnap
per, together with a description of the victim
and of the kidnapper and information as to the
direction in which the automobile was proceed
ing. It is alleged that the peace officers in ques
tion failed and neglected to do anything effec
tive or , reasonable in the circumstances and that
the provincial police of the Province of Quebec
are also jointly and severally responsible in that
they failed and neglected to operate and main
tain a properly integrated communications net
work whereby the kidnapping would have been
made known to them. The amended statement
of claim further alleges that the peace officers
in question were at all times relevant to the
kidnapping and murder of the victim servants
and employees of the Quebec provincial police
force, the federal government and Ville de Bros-
sard and that the murder resulted from the
combined fault, negligence, imprudence, want
of skill, neglect, inaction, and acts of omission
of all of them in failing to apprehend the kidnap
per for a period of approximately 18 hours,
failing to make available to their police cruisers
the information which they had acquired, failing
to set up road blocks, failing to notify the
Quebec provincial police of the kidnapping and
refusing their assistance, failing to notify the
police forces of the region and adjacent
municipalities and seeking their assistance, fail
ing to make use in a proper and effective
manner of various communications systems and
networks available to the police forces in the
Province of Quebec, treating the kidnapping
lightly and suggesting that the victim had run
away from home, and treating the case as that
of a missing person rather than of kidnapping.
Since at this stage of the proceedings we
cannot go into the question of whether the said
peace officers were guilty of fault as alleged
which resulted in the tragic death of the said
Ursula Schulze but must proceed on the
assumption that the allegations in the statement
of claim are true and that they would therefore
be personally liable to plaintiffs, the question
really resolves itself to determination as to
whether the said municipal police officers can
be considered in law, agents, servants or
employees of Her Majesty in right of Canada.
The action against the Crown is based on sec
tion 3(1)(a) of the Crown Liability Act' which
reads as follows:
' R.S.C. 1970, c. C-38.
3. (1) The Crown is liable in tort for the damages for
which, if it were a private person of full age and capacity, it
would be liable
(a) in respect of a tort committed by a servant of the
Crown, ... .
This is complemented by section 4(2) which
reads as follows:
4. (2) No proceedings lie against the Crown by virtue of
paragraph 3(lxa) in respect of any act or omission of a
servant of the Crown unless the act or omission would apart
from the provisions of this Act have given rise to a cause of
action in tort against that servant or his personal
representative.
However, in view of the assumption of the
existence of a cause of action in tort against the
said peace officers on the basis of which this
question of law must be decided, the condition
of section 4(2) must be deemed to have been
met. In the interpretation section of the Act,
being section 2, the word "servant" is defined in
part as follows:
2. In this Act
"servant" includes agent
and "tort" is defined as follows:
2. In this Act
"tort" in respect of any matter arising in the Province of
Quebec, means delict or quasi-delict.
The liability of employers for the delict and
quasi-delict of their servants is set out in article
1054 of the Quebec Civil Code which reads in
part as follows:
1o54... .
Masters and employers are responsible for the damage
caused by their servants and workmen in the performance
of the work for which they are employed.
It is conceded by plaintiffs that the said police
officers were not employed by the Crown in any
master-servant relationship, but the contention
is that they were agents by virtue of a legal
mandate to enforce the criminal law.
Under the Quebec law of mandate, dealing
with the obligations of the mandator toward
third persons article 1731 states:
1731. He is liable for damages caused by the fault of the
mandatary, according to the rules declared in article 1054.
In section 2 of the Criminal Code 2 "peace
officer" is defined as including:
(c) a police officer, police constable, bailiff, constable, or
other person employed for the preservation and mainten
ance of the public peace or for the service or execution of
civil process,
There is no doubt that the police constables and
officers in question, although employed by the
municipality of Ville de Brossard, were
"employed for the preservation and mainten
ance of the public peace" and hence were peace
officers within the meaning of the Criminal
Code definition. Plaintiffs concede in the par
ticulars furnished by them that there are no
written documents constituting the basis of
employment of these constables and officers by
Her Majesty the Queen in right of Canada but
contend that their employment by Ville de Bros-
sard is sufficient in law to constitute the basis of
such employment and that they were agents and
constructive servants and employees of the
Queen in right of Canada with respect to the
performance of their functions and duties pur
suant to the provisions of the Criminal Code for
the preservation of the peace, order and good
government of Canada, and that defendant is
responsible for their tortious acts by virtue of
jurisprudence of the Supreme Court of Canada
and the Quebec Court of Appeal holding that a
peace officer is an agent of the federal govern
ment when he is or should be involved in
enforcing the provisions of the Criminal Code.
In support of this proposition they cite the cases
of La Cité de Montréal v. Plante 3 , Hébert v. La
Cité de Thetford Mines 4 and Roy v. The City of
Thetford Mines 5 . In the first of these cases,
although the municipality was held liable for
illegalities committed by its police officers in
helping a bailiff who had been forcibly prevent
ed by the debtor from conducting a judicial sale,
Rivard. J. did make the following remarks at
page 148:
2 R.S.C. 1970, c. C-34.
3 (1923) 34 K.B. 137.
4 [1932] S.C.R. 424.
5 [1954] S.C.R. 395.
[TRANSLATION] Police constables are engaged at the same
time in functions of general interest and in services of local
utility. When therefore a police constable has, in the exer
cise of his functions, committed an illegal and damaging act
the responsibility of the municipal corporation which has
appointed him will be engaged or not depending on whether
this act was committed in the exercise of the powers of the
state or as a particular service of the municipality. In other
words, the police officer named by a corporation only
engages its responsibility when he acts as an agent of the
city for the execution of its laws, ordinances and municipal
by-laws; when, on the other hand, he acts as guardian of the
peace and good order he is the agent of the state which
recognizes him as a delegate of its sovereign power and in
this case the corporation escapes responsibility because in
appointing him it was only acting as the depository of the
authority of the state.
The judgment in this case was referred to with
approval in the Hébert case (supra) by Rinfret J.
The headnote in this case reads in part as fol
lows at page 425:
Held that a constable binds the municipal corporation which
has appointed him when he acts as municipal officer for
the purpose of enforcing the observance of the local
ordinances; but he does not bind the corporation when he
acts as guardian of the peace to enforce observance of the
laws concerning public order. La Cité de Montréal v.
Plante (Q.R. 34 K.B. 137) approved.
Held, also, that the mandatary of several principals binds
only the one for whom he acts at the time when the act
causing injury is committed. It is not the regular and
customary employment of the mandatary that must be
taken into consideration, but the quality in virtue of which
he really acts at the time of the event giving rise to the
action brought against him.
In the third case referred to,.namely that of Roy
v. The City of Thetford Mines, the judgments in
the Cité de Montréal v. Plante and Hébert v. La
Cité de Thetford Mines (supra) are referred to
with approval. In rendering judgment, Fauteux
J., as he then was, stated at page 402:
[TRANSLATION] The responsibility of the corporation is not
engaged by the fault and damaging action which the munici
pal policeman commits when acting in the execution and the
limits of these other functions which the state, by the
dispositions of the law, i.e. the Criminal Code, attributes to
him in his quality as peace officer to ensure the observance
of this law. Thus, as agent or mandatary of different princi
pals or mandators the municipal police officer only engages
the principal or mandator for whom he is doing business or
for the benefit of whom he is acting at the time that the
damaging act is caused.
It is to be noted that none of these cases deals
directly with the responsibility of the Crown,
whether in right of Canada or of the Province,
for acts of police officers in enforcing provi
sions of the Criminal Code, but merely with the
non-responsibility of the municipality which
employs them under these circumstances unless
it can be considered to have approved or con
doned their actions, so that it would be carrying
these decisions further than they have gone to
hold the Crown in right of Canada liable in the
present case. This conclusion which plaintiffs
seek would have to be based on statements
somewhat obiter in nature made in the course of
these judgments but, nevertheless, clearly
indicative of the judicial reasoning which was
adopted by the higher courts, at least in so far
as cases emanating from the Province of
Quebec is concerned 6 .
It should also be noted that the first two of
these cases antedated the Crown Liability Act
which only came into effect in 1953 and that
even the third case, that of Roy, which was
subsequent to the enactment, does not deal with
its provisions as there was no need to do so in
the action against the municipality. Neverthe
less, Fauteux J. would certainly be aware of the
provisions of this statute when he rendered
judgment in which he clearly indicated that the
municipal police officer acted in different quali
ties engaging the responsibility of his various
principals or mandators by virtue of the quality
in which he was acting at the time. Counsel for
plaintiffs emphasizes that the learned Justice at
page 403 refers to the municipal officers as
acting at the time of their 'tortious conduct
[TRANSLATION] "in the execution and limits of
this legal mandate which as peace officers they
had , received from the state" (italics mine).
Counsel points out that mandate can be
6 Justice Rivard discusses the difference between the
English and French law respecting the responsibility of the
municipal corporation for acts committed by its police con
stables in the exercise of their functions at pages 146 and
following in the judgment in the case of La Cité de Montreal
v. Plante (supra).
expressed or implied and contends that munici
pal police officers in enforcing the provisions of
the Criminal Code are acting by virtue of an
implied legal mandate. He makes a distinction
also between the rules of mandate which are
applicable to civil law and those which should
be applied in the field of public law. Dealing
with the argument that the Criminal Code
merely empowers them to act as peace officers
to enforce its provisions but that their duty is
imposed upon them by the provincial Police
Act', he contends that when the authority or
power is given to an individual to perform a
duty or carry out a specific task, the person
giving such authority and power is subject to
the responsibility or liability for the acts of the
person so empowered and suggests that the
distinction between the responsibility of the fed
eral Crown and the provincial Crown is based
on the fact that a peace officer in terms of his
authority and power acquired from the federal
government acts as an "agent" of the federal
Crown whereas in terms of the duties imposed
upon him by the Police Act of the Province of
Quebec he acts as a "servant" of the provincial
Crown. He points out that the word "agent" is
not synonymous with the word "servant" used
in section 3(1)(a) of the Crown Liability Act
although it is by definition included in that term,
but that it is a much broader term so that the
federal Crown can be held liable even if it has
no supervision or control over the actions of its
agent such as would exist in the case of its
servant. The police constable's duties as such
set up a sui generis relationship between him
and one or more levels of government so that
the rules ordinarily applicable to the master and
servant relationship or principal and agent rela
tionship cannot be applied.
A contrary view was expressed by Chief Jus
tice Challies in the more recent case of Allain v.
Attorney General of Quebec 8 in which he dis
' 17 Elizabeth II 1968, c. 17.
8 [1971] S.C. 407.
missed an action against the Attorney General
for the Province of Quebec for alleged false
arrest by constables of the City of Montreal,
refusing to sustain the argument that because
the constables were acting as peace officers
they were agents of defendant. This judgment
refers inter alfa to the case of St-Pierre v. City of
Trois-Rivières 9 in which, although the City of
Trois-Rivières was held not liable for the fault
of one of its constables acting as a peace officer
in connection with criminal matters, Bouffard J.
stated at page 441:
[TRANSLATION] If a peace officer is only exercising his rights
for the benefit of the public, rights which he holds by virtue
of the common law and the Criminal Code, no one is
responsible for his acts and conduct, no more the City of
Trois-Rivières who named him as police chief, than the
criminal court or the governments which constituted him as
a constable.
He also refers to the judgment of Pratte J. in the
case of La compagnie Tricot Somerset Inc. v.
Village of Plessisville 10 where he states:
[TRANSLATION] In so far as the maintenance of the public
peace and prevention of crime is concerned, the municipal
corporation which exercises the power, which the state has
delegated to it, to create and maintain a police force, cannot
be sued before the courts as a result of its operations no
more than the Sovereign herself.
The learned Chief Justice also quotes two
common law cases, stating that the English
public law applies. At page 411 he quotes from
the case of Attorney-General for New South
Wales v. Perpetual Trustee Co. Ltd." where
Viscount Simonds stated:
... there is a fundamental difference between the domestic
relation of servant and master and that of the holder of a
public office and the State which he is said to serve. The
constable falls within the latter category. His authority is
original, not delegated, and is exercised at his own discretion
by virtue of his office: he is a ministerial officer exercising
statutory rights independently of contract. The essential
difference is recognized in the fact that his relationship to
the Government is not in ordinary parlance described as that
of servant and master.
9 (1936) 61 K.B. 439.
10 [1957] K.B. 797 at page 799.
« [1955] A.C. 457 at pages 489-90.
He also refers to the Australian case of Enever
v. The King 12 where the following is found:
Now, the powers of a constable, qua peace officer, wheth
er conferred by common or statute law, are exercised by
him by virtue of his office, and cannot be exercised on the
responsibility of any person but himself. If he arrests on
suspicion of felony, the suspicion must be his suspicion, and
must be reasonable to him. If he arrests in a case in which
the arrest may be made on view, the view must be his view,
not that of someone else. Moreover, his powers being con
ferred by law, they are definite and limited, and there can be
no suggestion of holding him out as a person possessed of
greater authority than the law confers upon him. A con
stable, therefore, when acting as a peace officer, is not
exercising a delegated authority, but an original authority,
and the general law of agency has no application.
Justice Challies also refers at page 409 to the
recent judgment in Fortin v. The Queen 13 in
which Miquelon J. states:
[TRANSLATION] ... the members of the provincial police are
public officers. When they execute writs issued by a com
petent court their functions are ministerial. They have, aside
from that, functions which result from the judicial order
where they are called upon to exercise a certain discretion.
Thus, it is left to their judgment to decide whether in certain
circumstances there is justification or not for making an
arrest. They are not employees of the state in the strict
sense of the word. Their duty is not to the state itself but to
the public.
And again at page 176 where Miquelon J. states:
[TRANSLATION] It follows that if, in certain cases, the state
can be sued for damages caused by members of the provin
cial police, it must be well established that they acted under
the orders of a superior. Otherwise, when the matter arises
from the exercise of a discretionary power, the state cannot
be sued.
It can be concluded therefore that Chief Justice
Challies would recognize the existence of a sit
uation where no superior authority would be
responsible for the tortious acts of the constable
in enforcing the criminal law.
Counsel for plaintiffs contends that these
common law cases are not applicable in Quebec
in view of the findings of the Quebec Court of
12 (1906) 3 C.L.R. 969 at page 977.
13 [1965] S.C. 168.
Appeal in the Plante case (supra) and of the
Supreme Court in the Hébert and Roy cases
(supra) which appear to reject the proposition
that the peace officer is exercising an original
rather than a delegated authority. He concludes
that the police officer must be considered as
someone's agent, so that in situations in which
he is not the agent of the municipality then he
must be the legal mandatary or agent of the
Crown and that it is the Crown in right of
Canada which is concerned since, as in the
present case, the officers were enforcing the
criminal law which is a federal matter by virtue
of section 91 of the British North America Act.
Plaintiffs' counsel argues that there should be
a more liberal interpretation of the law since the
passing of the Crown Liability Act which sub
stantially modified the old law that Her Majesty
the Queen can do no wrong. He argues that as
long as peace officers are performing functions
in carrying out a task imposed upon them pursu
ant to a general responsibility to the public for
the peace, order and good government of
Canada, the Crown in right of Canada must be
held liable for their tort and that it is an inade
quate answer to say that they are personally
liable and that it is not necessary that anyone
else should be vicariously liable in all cases for
such torts, as in practice, in most cases, the
injured victim could not recover from the peace
officers themselves. He contends that it is the
moral and legal obligation of the state to give
redress for wrongs inflicted upon a citizen. The
necessary acts of the state to maintain peace
and order may give rise to injury and the federal
Crown should be responsible for the acts of its
agents in the same way as a private corporation.
His references to the law of France, however,
where the state is responsible for all administra
tive acts and no distinction is made between
acts involving the carrying on of a sovereign
function or a mere proprietary function can
have no application in our law which must be
decided on the basis of the Crown Liability Act
and the laws of the Province of Quebec where
the cause of action arose. While section 91 of
the British North America Act gives jurisdiction
over criminal law to the federal authority, sec-
tion 92 makes the provinces responsible for the
administration of justice in the province.
Looking at Quebec law, reference can be
made to the Police Act (supra) section 2 of
which states as follows:
2. The members of the Police Force and the municipal
policemen shall be constables and peace officers in the
entire territory of the Province of Quebec; the same shall
apply to every special constable in the territory for which he
is appointed, subject however to the restrictions contained
in the writing attesting his appointment.
Section 54 reads as follows:
54. It shall be the duty of every municipal police force
and each member thereof to maintain peace, order and
public safety in its territory and in any other territory under
its jurisdiction, to prevent crime and infringements of its
by-laws and to seek out the offenders.
This Act was not in effect when the judgments
in the cases of Plante, Hébert and Roy (supra)
were rendered. Municipalities are creatures of
the provincial government and their police
forces come within the terms of the provincial
Police Act which, imposes on them the duty to
"maintain peace, order and public safety" and
"to prevent crime". These terms are certainly
broad enough to encompass the enforcement of
the provisions of the Criminal Code and it
would appear therefore that they are not agents
of the federal Crown in enforcing the Criminal
Code. Whether or not the Crown in right of the
province or the provincial attorney general can
be held liable despite the judgment in the Allain
case (supra) is not a matter which I have to
decide. In the present case I merely have to
decide whether they can be considered as being
agents of the federal Crown so as to engage its
responsibility by virtue of provisions of the
Crown Liability Act. In this connection it should
be noted that members of the Royal Canadian
Mounted Police and of the Canadian Forces
have been specifically designated as servants of
the federal Crown by virtue of section 37 of the
Federal Court Act 14 . In no other statute have
police officers been designated as servants of
the federal Crown nor are they members of the
Public Service as defined by the Public Service
Employment Act" or the Public Service Staff
Relations Act 16 and Schedule I.
Plaintiffs' counsel, therefore, in addition to
arguing the desirability under contemporary
conditions of holding some principal or manda-
tor liable in all cases for the tort of police
officers, is forced to base his contentions on the
obiter conclusions in the Plante, Hébert and Roy
cases which merely dealt with the liability or
non-liability of the municipal corporation
employing them. In support of the use of obiter
statements, he refers to an article in the July
1972 issue of the Israel Law Review, Vol. 7, No.
3 at page 342 in which Laskin J., as he then
was, stated:
In legislation, above all else, a court has a manifestation of
the "popular will"; and it is safe enough to say that interpre
tation should reflect as much concern with realizing the
object or purpose of the enactment as with its literal
expression.
Judicial law-making is a quieter process than that through
which a legislative assembly makes law. There is no prior
announcement of impending change in the law, save as it
may be discerned from previous decisions.
And again at page 343:
There is, however, another technique, a much older one
than prospective overruling, by which judges, especially in
appellate courts, give advance notice of pending changes in
judicial law. This is through obiter dicta which are not
determinative of the case in which they are uttered but
which, to the degree to which they are emphasized, enable
subsequent cases to be decided on a new legal basis.
And at page 344:
The judge is not simply a stylist; he is also a craftsman
who is expected to understand that what he says may not
only decide the case at hand but may have implications for
associated or even different branches of the law.
14 R.S.C. 1970, c. 10 (2nd Supp.).
15 R.S.C. 1970, c. P-32.
16 R.S.C. 1970, c. P-35.
Counsel for plantiffs also refers to an article by
Justice Witkon of the Supreme Court of Israel,
also in the Israel Law Review, 1967, at pages
479-80, note 20, in which he states:
As regards obiter dicta, I would suggest that they are of two
different kinds, those which are gratuitously thrown in and
have, at best, persuasive influence, and those which are
stated as a necessary corollary to the ratio decidendi of the
case. Disregard of the latter kind of obiter dictum is tan
tamount to a denial of the precedent itself.
Certainly, in deciding that the municipal corpo
ration was not liable for the acts of its police
constables save for the enforcement of munici
pal by-laws or in the event that they had ratified
and approved these acts, the higher courts in the
cases of Plante, Hébert and Roy (supra) did go
very far in implying that they were acting as
agents for several principals or mandators at the
same time and that each of these principals or
mandators would be responsible for their tor-
tious acts to the extent that they were acting as
their agents. I do not believe that the higher
courts can be said to have definitively con
sidered and dealt with the question of whether a
municipal police officer when enforcing the
criminal law thereby automatically must be con
sidered as acting at the time as an agent of the
Crown in right of Canada, and I have reached
the conclusion that the police officers in ques
tion were not acting as agents of the Crown in
right of Canada so as to engage its responsibility
within the meaning of section 3(1) of the Crown
Liability Act. The question must therefore be
answered in the negative. As the question has
never been raised before there will be no costs
on the motion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.