Case Name:

Tucker v. Canada (Attorney General)




Elizabeth Ann Tucker and Paul Anthony Smihal,

Plaintiffs, and

The Attorney General of Canada, The Canada Customs and

Revenue Agency and Rick DesRosiers, Defendants


[2006] O.J. No. 3756


151 A.C.W.S. (3d) 427


Court File No. 02-GD-53449



 Ontario Superior Court of Justice


R.C. Gates J.


Heard: April 18-21, 24-27, 2006 and May 8-10, 2006.

 Judgment: September 21, 2006.


(115 paras.)


Constitutional law -- Canadian Charter of Rights and Freedoms -- Legal rights -- Life, liberty and security of person -- Privacy -- Protection against unreasonable search and seizure -- Parties investigated by CRA did not have claim for breach of rights, where investigation conducted according to procedures and search warrant, later determined invalid, believed to be valid at time executed.


 Damages -- Psychological injuries -- Post-traumatic stress disorder -- Party subject to investigation, search and seizure by CRA not compensated for post-traumatic stress disorder -- While incident might have caused stress, party did not suffer from disorder.


 Tort law -- Trespass -- Parties investigated by CRA did not have claim for trespass, where investigation conducted according to procedures and search warrant, later determined invalid, believed to be valid at time executed.


 Tort law -- Invasion of privacy -- Surveillance -- Parties investigated by CRA did not have claim for invasion of privacy, where investigation conducted according to procedures and search warrant, later determined invalid, believed to be valid at time executed.


 Tort law -- Abuse of legal procedure -- False arrest or imprisonment -- Malicious prosecution -- Parties investigated by CRA did not have claim for false arrest where no one told them to stay in house -- Parties investigated by CRA did not have claim for malicious prosecution, where investigation conducted according to procedures.


Action by Tucker and Smihal against Attorney General and DesRosiers, investigator for CCRA for damages resulting from investigation, seizure of property and criminal charges by instituted by CCRA -- Tucker was Canadian citizen, married to Smihal, U.S. citizen -- Smihal claimed he maintained residence in U.S. throughout marriage except for brief period -- Smihal's address in U.S. was commercial building -- Smihal decided to store his boat at marina in Windsor -- Smihal signed agreement giving Windsor address -- Agreement filed with CCRA, triggering investigation into whether Smihal was Canadian resident -- DesRosiers was investigator -- DesRosiers obtained OHIP records showing Smihal indicated he had landed status in Canada, had left U.S. and was living in Windsor -- DesRosiers also inspected garbage left at Tucker's Windsor address, finding several references to Smihal as living in Windsor -- DesRosiers conducted random surveillance of Windsor residence, noting Smihal slept there and drove to work in U.S. in mornings -- DesRosiers checked U.S. municipal office, which had no record of Smihal being resident at U.S. address -- Documents, two cars with U.S. license plates seized by CCRA officials from Tucker's home in Windsor in execution of search warrant -- Boat and documents pertaining to boat seized in Windsor -- Charges of evasion of duties laid against Tucker and Smihal -- Tucker and Smihal successfully applied to quash search warrants -- Evidence gathered excluded and property seized ordered returned -- Criminal charges dismissed -- Tucker and Smihal moved for partial summary judgment for declaration their right were violated and for recovery of legal fees, lost income from employment and stock holdings resulting from actions by CCRA and DesRosiers -- Also sought compensatory, aggravated and punitive damages for malicious prosecution, invasion of privacy, trespass and false imprisonment -- Marina manager testified at trial she inadvertently inserted Canadian address on agreement, but admitted she sent mail for Smihal to Canadian address -- Newspaper article containing quote from Tucker stating she and Smihal intended to sell their home in Windsor introduced as evidence -- Smihal testified he returned to U.S. to live after making OHIP application but did not inform OHIP -- Border crossing records showed Smihal traveled between Canada and United States 50 percent of days -- Smihal produce photos of U.S. residence he claimed -- Photos showed sofa, television, coffee maker, end tables and cupboard -- No indicia of occupancy such as family pictures, mementos, cooking facilities -- Only public washroom was available -- No clothes kept in U.S. -- Tucker claimed she was told she could not leave premises during execution of warrant, but admitted under cross-examination no one told her this -- Tucker claimed shock, anxiety and embarrassment caused by incident led to her developing post-traumatic stress disorder -- Clinical psychologist diagnosed Tucker with disorder -- Stated a 199 motor vehicle accident could have created pre-disposition to disorder -- Defence psychiatrist disagreed with diagnosis --

HELD: Action dismissed -- OHIP issue, claims of residence in commercial building, newspaper quotations called into question Smihal's credibility regarding his U.S. residency -- DesRosier's investigation not driven by malice or ill will -- DesRosiers conducted thorough, resourceful investigation in accordance with departmental procedures -- Investigation was not breach of any of Tucker's or Smihal's rights -- No evidence of intimidating or reckless conduct -- Although warrant to search Tucker's residence later ruled invalid, DesRosiers and other officers enforcing warrant acted in good faith -- No malice on part of CCRA or DesRosiers associated with prosecution of Tucker and Smihal -- No invasion of privacy where DesRosiers and officers acting under reasonable belief they had valid warrant -- No false imprisonment where Tucker not actually restrained from leaving her residence -- No evidence supported claims for lost income -- Smihal not awarded damages for time spent attending court appearances that were purely administrative -- NO case made for punitive or exemplary damages -- Court accepted defence expert's opinion that Tucker did not have post-traumatic stress disorder, but was merely stressed out.


Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 7, s. 8, s. 24(1), s. 24(2)

Crown Liability and Proceedings Act, R.S.C. 1985

Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 11(1), s. 12, s. 13, s. 17, s. 42, s. 43(1), s. 111

Customs Department Interpretation Bulletin, I.T.-221RS, s. 2, s. 6, s. 8, s. 10, s. 16

Income Tax Act



Raymond G. Colautti and Anita Landry, for the Plaintiffs

Christopher Parke, for the Defendants





R.C. GATES J.:--


1     On December 2, 1998, ten agents and employees of the Canada Customs and Revenue Agency ("C.C.R.A."), together with Rick DesRosiers ("DesRosiers") attended at 205 Randolph Place, in the City of Windsor, the home of Elizabeth Tucker ("Tucker"), armed with a search warrant. They searched the house and garage and seized a variety of documents and personal papers together with two cars plated and registered in the State of Michigan. Simultaneously C.C.R.A. agents seized a boat owned by the defendant Paul Anthony Smihal ("Smihal") at the Westport Marina in suburban Windsor, which was likewise registered in the State of Michigan, together with documents pertaining to it.

2     Smihal retained counsel to challenge the seizures and to seek the return of the vehicles and boat. Reimbursement was eventually made to him of the fines he paid and his goods were returned.

The Parties:

3     Ms. Tucker is a Canadian citizen who lived in the home, located at 205 Randolph Place, Windsor, which she purchased in 1983. She married her co-plaintiff Smihal on July 3, 1992.

4     Paul Anthony Smihal a U.S. citizen says that at all times relative to the issues in this case he was a resident of the State of Michigan and not of Canada.

5     The defendant, the Attorney General of Canada ("The A.G.C."), is the legal representative of Her Majesty the Queen in Right of Canada ("the Crown") and the person against whom proceedings against the Crown may be taken. The Crown is liable for the damages in respect of a tort committed by a servant of the Crown: see Crown Liability and Proceedings Act, 1985 R.S.C.

6     The defendant Rick DesRosiers ("DesRosiers") was at all material times a servant of the Crown. He was employed as an investigator for Canada Customs and Revenue Agency ("C.C.R.A."), a Crown agency.

The Background

7     Following his marriage to Ms. Tucker, Smihal maintains that except for the brief period from July 24, 1994, to January 1995 when he lived in Windsor he has for all practical purposes always maintained his actual residence at 28740 Harper Street, St. Clair Shores, Michigan. He admits that this is a commercial/office building in which he sub-let part of the space occupied by one of its tenants. More will be said about this issue later in these Reasons.

8     In 1997 Smihal decided to store his luxury cruiser at the Westport Marina in LaSalle, Ontario. To do so he executed a storage agreement with the marina operator but, he says, through inadvertence on the manager's part, she filled out his address portion of the agreement as 205 Randolph Place in Windsor, as opposed to 28740 Harper Ave., in St. Clair Shores, Michigan. However he signed it as is.

9     This marina report was filed with C.C.R.A. by the operator as required by the Customs Act because of the Michigan registration of the boat. This triggered an investigation by C.C.R.A. and DesRosiers to determine whether Smihal was a resident of Canada and if so, whether he contravened the Customs Act by bringing assets into the country without paying the required duty.

10     DesRosiers' preliminary inquiries involved tracking the boat to its point of purchase at a marina in Port Huron, Michigan. Subsequently a search warrant was obtained on December 1, 1998, on the basis of an Information prepared by DesRosiers and this led to the seizure of December 2, 1998. In March 1999 criminal charges were formally laid against the Plaintiffs alleging an evasion or an attempt to evade the payment of duties under the Canada Customs Act and possession of imported goods contrary to the Act.

11     Their application to quash the search warrants was heard by Justice S. Nosanchuk at the Ontario Court of Justice. On October 2, 2001, he found that the Information was misleading and inaccurate and that the searches and seizure were illegal and violated the Plaintiffs' rights under s. 8 of the Canadian Charter of Rights and Freedoms. Therefore the evidence gathered in support of the charges was excluded under s. 24(2).

12     On that date he also issued an Order requiring the Crown to return the property seized. With no further evidence then being offered against either Plaintiff, the criminal charges were dismissed. No appeal was taken by the Crown from this decision.

13     Subsequently the Plaintiffs moved for a partial Summary Judgment for a declaration that their Charter rights were violated and for the recovery of the expenses referred to.

14     This application was heard by Mr. Justice T. Granger on September 25, 2003, who determined the issues to be:


(i)           Whether issue estoppel would operate to bar the defendants from re-litigating the finding of Justice Nosanchuk that there was a violation of the plaintiffs' s. 8 Charter rights.

(ii)         Whether the issue estoppel would prevent the defendant DesRosiers from putting forward a full defence to all the facts and issues before the court, as described in the Statement of Claim.

15     Because Justice Nosanchuk's Ruling on the s. 8 Charter issue was conclusive, he ruled that the A.G.C. and C.C.R.A. were estopped from attacking it.

16     However, since the plaintiffs were now also seeking a declaration of the breach of their s. 7 Charter rights, which had not been an issue before Nosanchuk J., these defendants were not estopped from litigating this issue.

17     Granger J. also held that the defendants were entitled to defend the plaintiffs' claim for damages pursuant to s. 24(1) of the Charter because a breach of s. 8 would not of itself entitle the plaintiffs to damages. Rather, to succeed they must establish malice or ill will before the defendants would be liable. See Persaud v. Donaldson (1997), 32 O.R. (3d) 349.

18     DesRosiers was neither a party nor a privy to those proceedings having participated only as a witness under subpoena. As such, he could not raise issues or adduce evidence in chief or cross-examination. Therefore Granger J. held that he could defend both s. 7 and s. 8 and the damage claims.

19     The Plaintiffs' application to the Divisional Court for leave to appeal his decision was dismissed on April 8, 2004.

20     This is the factual matrix against which the plaintiffs have commenced this action.

21     In this action they claim that they have spent or lost $195,965.28 for legal fees, lost income both personal and professional, and losses in stock holdings.

22     They also seek to recover compensatory, aggravated and punitive damages for malicious prosecution, an invasion of their privacy, trespass and false imprisonment as well as a declaration that their rights under s. 7 of the Charter have been breached.

The Issues


(i)           Were the Defendants, and in particular Rick DesRosiers motivated by malice or ill will in the manner in which the residency status of the Plaintiff Smihal was investigated?

(ii)         If so, were the Plaintiffs' rights under s. 7 and s. 8 of the Charter breached?

(iii)        If so, did the Plaintiffs or either of them suffer damages?

(iv)        If so, what were the damages?

The Legislation:

23     December 2, 1998, the date that the search warrant was executed at 205 Randolph Place is the culmination of an investigation by the Defendant DesRosiers which began in October 1997 when he first became suspicious about the true residency status of the Plaintiff Smihal. This appeared to have been triggered by the fact that a marine lease agreement which he signed at Westport Marina, for his Michigan - registered 32 foot Maxim Cruiser, identified his residence at 205 Randolph Place in Windsor. An inquiry to a Marina in Port Huron Michigan confirmed that the boat had been purchased there by Smihal a few months earlier.

24     The sensitivity of this issue to C.C.R.A. in this part of Ontario is based upon the fact that there is a large and regular trans-border movement of pleasure craft between Ontario and Michigan and, because of the favourable exchange rate at the time it was quite common for American boat owners to dock their craft in the Windsor area and for many of them to also store their boats here over the winter.

25     This is all permissible, provided certain regulatory requirements are met by the American boat owner and this provides the basis upon which Marina operators who dock and store U.S. watercraft, are required to report to C.C.R.A. If it is satisfied upon reviewing the documentation that its regulations have been complied with, it then issues an E99 form which authorizes the docking and/or storage of a vessel. That document is then delivered to the Marina operator who attaches it to the boat in question.

26     This context provides the reason for the initial inquiries by DesRosiers when he saw a discrepancy between the Michigan registered boat owned by someone with a Windsor address.

27     The issue to be considered by him was whether Smihal was in fact a resident of Canada and if so, whether he evaded the payment of duty under the Customs Act.

28     In assessing the concept of residence, DesRosiers considered the Customs Act R.S. 1985 C.1 (2nd Supp) which provides the statutory framework and authority under which he conducted his investigations and the obligations incumbent upon entry into Canada of a non-resident. The relevant provisions for the purposes of my analysis are as follows:


*              Section 11(1) requires everyone arriving in Canada to present to a Customs Officer and to answer truthfully any questions pertaining to the entry of that person.

*              Section 12 requires that when one brings or imports into Canada any goods, this must be reported to Customs officials.

*              Section 13 requires that anyone reporting any such goods, to truthfully answer any questions asked about them by a Customs Officer.

*              Section 17 provides the obligation for the payment of duties arising from the importation of goods and, no goods are to be released to that person unless and until the duties have been paid.

*              Section 42 empowers a Customs Officer to inspect any record of the person concerning any monies payable under the Act, and where a warrant has been obtained, to enter a dwelling house.


                 As will be seen, DesRosiers concluded that this section gave him the authority not only to obtain the O.H.I.P. records of Smihal, but also to retrieve and inspect garbage in the alleyway at the rear of 205 Randolph Place.


*              Section 43(1) obligates a third party, when requested, to produce its records.

*              Section 111 provides the basis upon reasonable grounds to authorize the issuance of a warrant to seize goods or vehicles once it has been determined that there is evidence of an infraction under the Act by the nonpayment of duties. By definition, the concept of goods includes cars and boats. Furthermore any right to search includes not only a building but also any receptacle or place where the goods were being kept.

29     In addition, DesRosiers also referred to the Customs Department Interpretation Bulletin, I.T.-221RS, dated February 19, 1983, the relevant provisions of which are:


*              Section 2 adopts the Income Tax Act definition of resident, a concept which is not defined per se, except that if one "regularly and normally and customarily" lived in Canada for certain period of time, then one would be deemed to be a resident.

*              Section 6 sets out other indicia of residence including a dwelling place for the subject in question, whether that person has a spouse, and personal property and social ties.

*              Section 8 provides that if a married individual leaves Canada, but his/her spouse remains, then he/she will be "generally" considered to remain a resident of Canada during his/her absence.


                 Where a person leaves Canada but retains ties to it, such as Provincial Hospitalization coverage like O.H.I.P., this will also be considered as a factor in assessing residency.


*              Section 10 states that the courts have concluded that it is possible for someone to be a resident of more than one place at a time. Therefore where a resident of Canada leaves and establishes a permanent residence elsewhere, this does not mean that that person has become a non-resident of Canada.


                 Where someone leaves Canada as a resident and enjoys regular return visits, which are something more than occasional, this will also be considered in assessing whether that person is still a resident of Canada.


                 An individual who sojourns (that is, is temporarily present) in Canada for 183 days or more in any calendar year is deemed to be a resident of Canada for the entire year.


*              Section 16 provides that where someone enters Canada other than as a sojourner (for example, a landed immigrant) and establishes residential ties within Canada, that person will be considered to have become a resident of Canada on the day that he entered. In this case, for example, Paul Smihal was granted landed immigrant status on July 24th, 1994.

A. DesRosiers' Investigation:

30     As noted earlier, DesRosiers' attention was first attracted to Smihal in late 1997 when he examined the storage agreement by which Smihal contracted with Westport Marina to store his boat registered in Michigan. The given address for Smihal was 205 Randolph Place, Windsor. On checking further he determined that the boat, a 32 foot Maxim Cruiser had been purchased in Port Huron on August 3, 1997.

31     I accept the trial evidence of Ms. Tann the Marina Manager that she inadvertently inserted the Windsor address instead of his St. Clair Shores address. This was unknown to DesRosiers. However, the same mistake was repeated in the dockage agreement Smihal signed on March 23, 1998. Furthermore, she acknowledged sending mail to him in Windsor because this was the mailing address she had for him in her records.

32     On Saturday, February 28, 1998, an article appeared in the Windsor Star describing the historic significance of 205 Randolph Place and its part as a piece of Windsor's history. Ms. Tucker was quoted on saying that she had lived in the house for about 15 years, but that she and her husband Paul Smihal were moving to a condominium and accordingly they had "their" home up for sale. Smihal is quoted as saying; "it's a tremendously huge home for the two of us", with reference to it being 3,100 square feet. After describing the various rooms in it, the article concludes with the statement that Tucker and Smihal were keeping a house across the street, which they also own so they don't have to completely severe ties with the neighbourhood they love.

B. The O.H.I.P. Records:

33     Using the authority provided by s. 43(1) of the Customs Act, DesRosiers wrote to O.H.I.P. on October 15, 1998, requesting confirmation of the existence of O.H.I.P. registration for Smihal and any records of the use made by him of his O.H.I.P. coverage.

34     In response, he was advised that to qualify for O.H.I.P. Health Benefits there are three prerequisites:


(i)           The person in question must provide proof of being a permanent resident of Canada or the holder of other acceptable Canadian Immigration Status.

(ii)         The person must be "ordinarily resident" in Ontario and this requires that the person make his/her "permanent and principal" home in Ontario and further, is present in Ontario 183 days in any 12 month period.

(iii)        Furthermore, a person applying for the first time must establish residence and this means being present in Ontario for not less than 153 days of the first 183 days after becoming a resident.


*              The O.H.I.P. file also confirmed that Smihal had initially applied for but was rejected for health coverage on August 10th, 1992.

*              The Ontario address he provided at the time was 205 Randolph Place Windsor.

*              On August 2, 1994, he again applied and indicated that he had left the United States on July 24, 1994, and acquired land-immigrant status here for which he was sponsored by his wife. He was therefore approved for O.H.I.P. coverage which began on October 24, 1994. Again, he provided the Randolph Place address as his place of residence.

*              The O.H.I.P. records further confirmed that he regularly utilized the coverage available to him from October 1994 up to and including September 1998, the date of O.H.I.P.'s response to DesRosiers' s. 43(1) request. Presumably his coverage extended beyond that time.

*              When cross-examined, Smihal stated that he returned to the United States in January 1995 when he became employed by the Detroit Metro Times Publishing Company, as its Chief Financial Officer. This employment ceased in January 2000, when he commenced similar employment with another Michigan-based corporation, until July 2001. However, he admitted that he never informed anyone of his intention to effectively cancel his landed immigrant status.

35     On returning to Michigan he resumed the Harper Ave., residence in St. Clair Shores.

36     Despite the fact that he claims to have ceased to be a resident here, he continued to receive O.H.I.P. benefits for the next 4 years. If his Ontario residence did cease in January 1995, then he is in clear contravention of O.H.I.P.'s coverage regulations. This, in my view would amount to a deception and a fraud knowingly committed against O.H.I.P.

37     Conversely, if he is still to be considered a resident of Ontario after January 1995, then he is in violation of the Customs Act.

38     Either way in my view, there is a significant adverse impact on his overall credibility.

39     Smihal's motives and intentions were obviously not known to DesRosiers while he was conducting his investigation.

40     I find that his inquiry to O.H.I.P. was part of his overall due diligence in trying to ascertain whether Smihal was a resident in Ontario. The results of this inquiry when received, no doubt enhanced DesRosiers' suspicion in this regard, and fuelled his investigation into other areas.

41     When confronted in cross-examination by the very precise criteria for qualifying for O.H.I.P. coverage, Smihal agreed that it was based on the legal right to remain in Canada while one makes a home in Ontario and that his presence here had to be for a minimum of 183 days a year. He was not however, able to explain why he had certified to this while maintaining throughout the trial that he was not a resident here. His only explanation was that in January 1995 when he was injured in a motor vehicle accident in Ontario, he was so focused on his injuries and the death of his wife's grandson in that accident that he never considered this issue. I find this troublesome.

C. The Search of Garbage

42     During the evenings of September 21st, and October 4th, 1998 under the authority of s. 42 of the Customs Act DesRosiers drove his own vehicle down a public alley at the rear of 205 Randolph Place and took possession of bags of garbage that had been left at the edge of the alley in an unmarked wooden bin. He had first determined from the Public Works Department of the City of Windsor that the garbage in that area was due to be picked up the following day.

43     He later inspected their contents which disclosed a number of documents or papers pertinent to his ongoing investigation. These included:


*              A thank-you note from a daughter of Elizabeth Tucker, addressed to him as "Dad Smihal" at 205 Randolph Place, Windsor.

*              A Resume in draft form completed by Smihal which refers to his Harper Ave., address in St. Clair Shores, Michigan. The draft Resume found in the garbage appears to have been replaced by a later and final draft which was found in his briefcase on the day of the seizure, December 2, 1998. The significance of the latter document is that in it he states that his address is 205 Randolph Place, Windsor, and, he confirms that he is a U.S. citizen and a landed immigrant in Canada.

*              A receipt from a local bicycle repair shop in his name and showing the Randolph Place address.

*              A copy of the Masthead from the Detroit Metro Times Newspaper which refers to Paul Smihal as the chief financial officer of its Alternative Media Inc. subsidiary.

*              A business envelope of Westport Marina (LaSalle) Ltd. addressed to Paul and Elizabeth Smihal at 205 Randolph Place, Windsor.

*              A copy of the Windsor Star article of February 28th previously referred to.

D. Random Surveillance:

44     On the morning of October 5th and November 6th, 1998, DesRosiers conducted random drive-by surveillance of the Randolph Place address and Smihal's Jeep was noted to be parked there. He was then observed leaving the home, driving away in the vehicle and passing through the Windsor-Detroit Tunnel to Michigan, ostensibly to go to work.

45     On December 2nd, 1998, when DesRosiers and the other agents arrived at approximately 8:00 A.M. to execute the Warrant of Seizure, Smihal was at home obviously getting dressed to go to work, with the inference that he had spent the previous night there.

46     On a number of other occasions DesRosiers testified, he or other agents conducted drive-by observations of the house at night and again, Smihal's vehicle was observed to be there.

E. Border Crossing Records

47     This information is corroborated by the fact that the records of the Integrated Customs Enforcement System (I.C.E.S.) Traveller History at the Windsor-Detroit border crossing records that between February 11, 1996, and December 1st, 1998, a period of 33 months, there were 476 crossings recorded by Smihal's Jeep vehicle which would average approximately 15 crossings per month representing approximately 50% of the available time in a month.


*              Similarly between January 1st and December 1st, 1998, in a period of 384 days, there were 178 such daily crossings which again approximates 50% of the time. The crossings were recorded as occurring late in the day, suggestive of someone working in Detroit and returning home each night, as thousands of Windsor area residents have done for many years.

48     Smihal admitted in cross-examination that he spent approximately 50% of his time in Windsor and 50% in St. Clair Shores, Michigan always being careful to spend at least 183 days in the U.S. because of the residence issue as it related to U.S. income tax.

49     During the course of his due diligence investigation, DesRosiers also spoke with an Immigration and Naturalization Service (I.N.S.) officer at the Detroit end of the tunnel from Windsor, who checked the U.S. records to determine whether there was a pattern of returning to Michigan which would correlate with Smihal's crossings as recorded by the I.C.E.S. computers in Windsor. Because the American system was not yet fully computerized there were only a few handwritten entries available but they did demonstrate a pattern of early morning entries into Detroit, consistent with his having spent the night in Windsor.

F. Photographs of 28740 Harper Street, St. Clair Shores, Michigan

50     On October 9, 1998, DesRosiers attended this address to make some inquiries as to the residence or occupancy of Smihal and took photographs to document his efforts. They display a one-story commercial-type building at the front of which is a fairly standard listing of the various tenants occupying it. There was no reference anywhere to a listing of Smihal as a tenant. There is however reference to C.F. Consulting Limited which sub-leased some of its office space to him ostensibly as living quarters. However, none of this information was known by or available to DesRosiers when conducting his investigations.

51     From the testimony of DesRosiers, which I accept, it would appear that prior to October 9, 1998, he was able to determine that Smihal was claiming the Harper Ave., address in St. Clair Shores to be his residence. However when he checked with the Municipal Office of St. Clair Shores, there was no record of him at that address.


*              Because he had developed some information as to a connection between Smihal and C.F. Consulting Ltd., he telephoned its business office and spoke with the receptionist who indicated to him that Smihal was unknown there. However, shortly thereafter in a subsequent conversation with her, she advised DesRosiers that she had been instructed by her employer to tell him that Smihal came there in the evening after business hours. This led to his attending at the premises on October 9th to take the photographs referred to. However, because he could not gain access to the suite occupied by that tenant, he was unable to verify whether or not Smihal actually resided there.

52     At trial, Smihal introduced a number of photographs which he had taken of the interior of the suite. They displayed a portion of the suite with a sofa, a television, a counter with a coffee maker on it, and a couple of end tables and a cupboard. What struck me, however, was the fact that if this was indeed a residence in the usual habitational sense, as opposed to a mere mail-drop, there were absolutely no indications of occupancy that one might ordinarily expect to see such as family pictures or other mementos, especially considering Mr. Smihal had 4 grown children. There was no evidence of any cooking facilities. Apart from the sofa, there was no evidence of any other sleeping arrangements and if it was the pullout kind, this was not evident in the photograph.


*              The only washing facilities available to him was the public washroom available to all the tenants and their clients. It consisted of a sink and a toilet only, with no bath or shower facilities, leaving one to wonder where the Plaintiff would shave, shower and so forth before going to work each day.

*              Smihal also testified that he kept no clothes there. Rather, at night he would arrive with a duffle bag of clothing which he would take with him when he left in the morning. Unless he was living out of the trunk of his car, which I highly doubt, this also leads one to wonder where he would keep his clothing. The answer in part at least, came from Smihal himself who testified he kept clothing at 205 Randolph Place, in Windsor.

53     As DesRosiers' investigation progressed through late 1998, it was becoming evident to him, that apart from whether Smihal would be considered a resident by U.S. law, it was becoming increasingly apparent that Smihal was a resident of Canada. His conclusion was supported not only by the results of his ongoing investigation, but also the definitions of residency found in the Income Tax Act and the Customs Department Regulations, previously referred to on pages 4-6.

G. Results from the Seizure of December 2, 1998:

54     The information and material which was recovered as a result of the seizure, included:


i)             A 1993 Mercury Cougar, with Michigan license plates parked in the garage.

ii)           A 1996 Jeep vehicle, also with Michigan license plates.

iii)          A completed Resume found in Smihal's briefcase which lists his address in Windsor as 205 Randolph Place together with the telephone number for that residence and in which he describes himself as a "landed-immigrant-Canada;"

iv)          Copies of dental insurance coverage documentation dated October 6, 1998, pertaining to dental services provided to him which lists his address as 205 Randolph Place;

v)            A copy of an invitation dated August 13, 1998, to four friends in Michigan for a day of boating on Smihal's cruiser. In it, he provides written directions to "my home" at 205 Randolph Place where they are all to meet. An attached map identifies the location of the address and he refers to it as "Home Sweet Home." He also listed "my" home phone number as (XXX) XXX-XXXX, which is the number for that residence;

[Numbers replaced with X's by LexisNexis Canada.]


vi)          A roofing contractor's documents addressed to Elizabeth and Paul Smihal at 205 Randolph Place;

vii)        Various pieces of personal correspondence directed to Smihal at the 205 Randolph Place address and further pieces of correspondence directed to Paul and Elizabeth Smihal at that address;

viii)       All of the documents seized on the boat at marina in LaSalle including the Michigan title, registration and insurance particulars, referred to Smihal's address on Harper Avenue in St. Clair Shores;

ix)          A monthly cash flow statement entitled Elizabeth and Paul's cash flow at 205 Randolph;

x)            Claim forms for the Equitable Life Insurance Company Of Canada for Elizabeth Tucker and Paul Smihal for medical services;

xi)          An invoice from Speedy Muffler Service to Smihal at 205 Randolph Place dated September 5, 1998, for the 1993 Mercury Cougar;

xii)        An invoice from Dr. D.V. Allen, D.D.S. to Elizabeth Tucker-Smihal at 205 Randolph Place dated June 29, 1998;

xiii)       The Marine Lease Agreement dated March 23, 1998, of the Westport Marina with Paul and Elizabeth Smihal at the 205 Randolph Place address which is stroked out and in its place is substituted 28740 Harper St. Clair Shores, Michigan;

xiv)       A Supplementary Benefits Claim form of the Equitable Life Insurance Company Of Canada dated February 23, 1998, pertaining to medications and physiotherapy services provided to each of the plaintiffs between November 17, 1997, and January 31, 1998;

xv)         A note from Paul Smihal dated October 6, 1997, to K-Sea Marine which arranged for the winterized shrink-wrapping of his boat with a request for confirmation of the order to be made by calling Smihal at the Windsor telephone number or his Detroit office;

xvi)       Invoices, dated July 19 and August 16, 1997, from Turners Audio Video directed to Paul Smihal at 205 Randolph, Windsor.

55     This is the information which provided the basis for his application to obtain the Search Warrant which was executed on December 2nd. I accept the evidence of DesRosiers that up to this point the investigation was a civil and not a criminal one. His focus did not change until after the results of the December 2nd seizure were analyzed and considered at which time he took his case to a Crown Attorney who made the decision to proceed with the charges against the Plaintiffs. DesRosiers did not have that authority.

56     Using information obtained from Smihal's lawyer after the seizure, on October 5, 1999, DesRosiers once again checked the municipal offices at St. Clair Shores and this time he was provided with the voting and tax registration for Smihal at the Harper Avenue address. This information was not available at the point of his original inquiry on September 15, 1998; firstly, because Smihal was not listed or recorded as an owner or tenant at that address and secondly, since the initial inquiry in 1998, all of the municipality's records had been computerized in a new registration system.

57     The file log of DesRosiers also indicates that on numerous occasions in 1998 before the warrant was executed on December 2nd, telephone inquiries were made to a number of sources, the common purpose of which was to determine whether Smihal resided in Ontario. In addition there were sporadic attendances at Randolph Place both early in the morning before Smihal left for work and in the later evening after he had returned, when his Jeep automobile was observed to be parked outside the house.

58     Smihal admitted that he stayed overnight and on weekends at 205 Randolph Place for at least 100 days but not more than 183 days per year and that he kept clothes there, he received mail there and he kept his Mercury Cougar in the garage.


59     I pause at this point to comment on the general credibility of this Plaintiff:


i)             On the O.H.I.P. issue which I have described, he is caught on the horns of a dilemma; he has either deceived O.H.I.P. for coverage for four years when he claimed to be no longer a resident in Canada or, he continued for that four year period to enjoy his O.H.I.P. coverage because he knew that he was in fact still a resident here. However, doing so he evaded the payment of customs duties. In either case this negatively impacts his credibility;

ii)           On a previous occasion he had some maintenance done in Michigan on the two boat propellers for his cruiser. In passing through the border at Windsor, he failed to declare this which resulted in a civil penalty in the form of a fine and the duty otherwise payable. He did not appeal this decision. In my view, this represents another act of dishonesty;

iii)          Against the backdrop of his denial of being a resident in Ontario, during the course of the December 2, 1998, execution of the Search Warrant, the updated Resume was found in his briefcase as noted earlier, in which he clearly lists his address in Windsor and that he is a U.S. citizen, landed-immigrant in Canada.

iv)          His claim to be living at the Harper Avenue apartment in St. Clair Shores stretches his credulity beyond reason. I was not impressed by the fact that, while he claimed to be a sub-tenant in a commercial suite, there was absolutely no evidence of any leasehold arrangement nor proof of any rental payments made by him to the head tenant. Similarly, although he claimed to have rented part of a house on Lakeshore Drive in Grosse Point Farms, Michigan as well as an apartment in downtown Detroit, there was likewise no evidence of a lease or rent payments to suggest that these arrangements were not a sham. This is particularly significant when one considers that as an Accountant with many years experience he would keep his affairs sufficiently in order that he could have easily produced proof that he paid rent to any of these three locations. The absence of such information leads one to wonder whether the Harper Avenue address was nothing more than a mail drop.

*              In addition, as described in paragraph 52 of these Reasons, his explanation of occupancy of the suite at night left one with considerable doubt as to the legitimacy of this arrangement.

v)            The boating invitation to his four Michigan companions in which he clearly identifies the Windsor residence as his home;

vi)          The quotations ascribed to him by the Windsor Star reporter in February 1998 in which he refers to 205 Randolph as the home of he and Ms. Tucker and that they plan to keep their residence across the street so they wouldn't have to leave the neighbourhood.

Testimony of Elizabeth Ann Tucker

60     Ms. Tucker confirmed that after she and Paul Smihal were married he moved to Windsor but that he maintained a separate residence in St. Clair Shores in Michigan. They were together at Randolph Place after he became a landed immigrant in 1994 but in 1995, he was there less, because he was then working in Detroit.

61     She described theirs as being an unconventional marriage because of his having residences in Ontario and Michigan. He would spend nights and weekends in Windsor at 205 Randolph Place where a great bulk of the furnishings belonged to her.

62     On the day of the seizure, because she was not working, she had not yet dressed into street clothes when the customs officers arrived. She was permitted to change once two female R.C.M.P. Constables had conducted a brief search of her bedroom, for security purposes.

63     Although she testified that during the three-hour search she was told to sit down and not leave the house, I prefer to believe the evidence of DesRosiers to the effect that at various times he walked about the house with her and at no time were either she or Smihal told not to leave.

64     There was no suggestion in her evidence or that of Smihal's, that DesRosiers and the other customs agents were anything but courteous and efficient in the manner in which they conducted their search. None of their possessions were broken or disarranged. On more than one occasion when DesRosiers engaged her in casual conversation, his manner could be described as low key and courteous.


65     On the residency issue, metaphorically speaking Smihal is like the man with one foot in the boat and the other on the dock. Although he purported to be a resident of Michigan, for whatever his purpose or motive, he was in effect also attached to Ontario. There were perhaps too many indicators to a seasoned investigator like DesRosiers to be ignored. His investigative purpose was to build a case if possible, to pursue a claim against Smihal (as a resident) for evasion of Customs Act duties.

66     However, the issue before the court is not whether Smihal could ultimately be considered a resident here but rather, whether DesRosiers' investigation into the matter was driven by malice or ill will. In my view it was not. I fail to see how he can be faulted in the context of this litigation for doing what he had been trained to do, in accordance with Departmental processes and in a manner consistent with its policies and procedures. In short, he is not liable.

67     In my view, his investigation can be characterized as thorough and resourceful. It is clear that as his investigation progressed he was confronted with a growing number of indicators that Smihal could be considered a resident of Ontario either in the usual habitational sense or at the very least, consistent with the concepts of residence or the status of a settler, as defined in the Departmental Memoranda or in the Income Tax Act. The thoroughness and intensity of his investigation is a reflection of the due diligence that one might reasonably expect of an experienced Investigator vested with the responsibility of carrying out the mandate of the C.C.R.A. under the Customs Act.

68     In short, the more he looked, the more he found. In the months leading up to the seizure of December 2, 1998, all the signs seem to indicate Smihal was indeed living in Windsor. There was nothing ambiguous or unclear about what DesRosiers was uncovering as his investigation proceeded along.

69     While it was strongly asserted at trial that Smihal was only a resident of St. Clair Shores, Michigan, whether he was or was not is not the point. When all of the evidence gathered by DesRosiers in advance of and from the December 2, 1998, seizure together with the contents obtained from the garbage bags and the very telling description of himself in his Resume as a landed immigrant with a Windsor address is considered, DesRosiers had a legitimate and reasonable belief that Smihal was a resident within the context of Canadian law and, therefore, subject to the payment of taxes and duties on his boat and cars.

70     Furthermore, when he had put his case together and presented it to the Crown Attorney, it was the Crown who made the decision to proceed and who as counsel, took responsibility for prosecution of the Plaintiffs.

71     I conclude that DesRosiers' investigation and the manner in which it was carried out did not constitute a breach of either s. 7 or s. 8 of the Plaintiffs' Charter rights. It was based on due diligence, not malice or ill will.

72     There was no evidence of any intimidating conduct on behalf of DesRosiers or any of the other Customs Officers or R.C.M.P. Constables, nor was there any evidence which would support a finding of reckless conduct on their part. Merely failing to disclose sufficient written information in obtaining a search warrant or, enforcing a warrant which is subsequently held to be invalid, will not attract personal liability if good faith is established. See Persaud et al and Donaldson et al 32 O.R.(3d) 349 and Scorpio Rising Software Inc. v. the Saskatchewan (Attorney General) (1986) 46 Sask. R.230 (Q.B.).

73     As in the Persaud case, when DesRosiers executed the Warrant he thought he had every right to be in the Plaintiffs' home and he had no reason to question the validity or the legality of it. Any invalidity was not apparent at that time nor was there any reason which then existed which would have imposed upon him a duty to inquire about its validity. Therefore although the warrant was later held to be invalid and it was quashed by Nosanchuk J., DesRosiers and the other officers who enforced it were acting in good faith. There was nothing to suggest that there was any reckless or intimidating behaviour on the part of any of them. They did not abuse their powers in a manner which might have attracted any personal liability.

74     The interface between the decisions of Nosanchuk J. and Granger J. produces the situation where neither A.G., the C.C.R.A., nor DesRosiers are bound by any issue relating to a breach of s.7 of the Charter, since this was not addressed at trial before Nosanchuk J. However, while the A.G. and C.C.R.A. are estopped from attacking his finding that the Plaintiffs' s. 8 Charter rights were breached, DesRosiers is not, since he was not a party to those proceedings.

75     However a Charter breach does not per se give rise to damages under s. 24(1). Rather, the Plaintiffs' must establish that there was malice or ill will.

76     Since I have found that there was none, neither Plaintiff is entitled to Charter damages. Therefore the answer to the first question is "No".

77     The Plaintiffs each claim damages for malicious prosecution, invasion of privacy, trespass and false imprisonment, which I will deal with individually.

Malicious Prosecution

The constituent elements of this tort are:


*              The proceedings must have been initiated by the Defendant.

*              The proceedings must have been terminated in favour of the Plaintiff.

*              The absence of reasonable and probable cause.

*              Malice.

78     In my view, this tort cannot apply to Mr. DesRosiers because the first element cannot be established; he did not initiate the proceedings against the Plaintiffs.

79     With respect to all Defendants, the last two elements are the most difficult to prove. As I have already found, there was no malice or ill will demonstrated by any of the Defendants and the information which had been developed by DesRosiers raised a compelling inference as to Smihal's residence in Ontario. Therefore there was a reasonable and probable cause upon which DesRosiers applied for and obtained the Warrant.

80     This tort also requires proof of an improper purpose or motive, one that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve. See Nelles v. Ontario [1989] 2 S.C.R. 170. Reasonable and probable cause contains both a subjective and an objective element. There must exist both an actual belief on the part of DesRosiers and that belief must be reasonable in the circumstances. I am satisfied they are met here.

81     The element of malice connotes an improper purpose and has a wider meaning than say, ill will or a sense of vengeance. It includes any other improper purpose such as to gain a private or collateral advantage. (See J.G. Flemming, The Law of Torts (5th) Ed. 1977) at p.609.)

82     As I have found, there was no malice associated with the manner in which the Defendants or any of them proceeded in this case.

83     Therefore their action for malicious prosecution fails.

Invasion of Privacy

84     Because DesRosiers was acting under the reasonable belief that he had a valid Search Warrant and that he had reasonable and probable grounds to enter the home at 205 Randolph Place, he cannot be said to have invaded the privacy of or trespassed against, the Plaintiffs.

85     The privacy allegation raises the additional issue with respect to the inspection by DesRosiers of the Plaintiffs' discarded garbage. The cases in Ontario, Manitoba and British Columbia have clearly held that in this circumstance the Plaintiffs can have no reasonable expectation or privacy with respect to the abandoned garbage and as such the Plaintiffs rights under s.8 of the Charter cannot be said to have been breached. (See R. v. Kennedy [1996] O.J. No. 4401, Ont. C.A.) Because there is no reasonable expectation of privacy therefore a warrant-less search with respect to the garbage is not offensive to s.8 of the Charter. (See R. v. Poetries [1998] O.J. No. 5628.) Although counsel argued that DesRosiers breached a Windsor Bylaw prohibiting the removal of garbage, it imposes a monetary fine only and no civil liability. In any event, I view this issue to be irrelevant to the case at hand and on the authority of R. v. Kennedy there is clearly no residual proprietary rights of the plaintiff to it.

False Imprisonment

86     With respect to the allegation of false imprisonment, DesRosiers clearly stated and I accept this that at no time were either of the Plaintiffs specifically told not to leave the house. During her cross-examination Ms. Tucker stated that while she was not physically restrained, she was not able to leave the house. However when confronted with her prior testimony from the cross-examination of her affidavit of August 20, 2003, she admitted that no one told her that she could not leave the premises. Should DesRosiers's evidence on this point vary with that of Smihal, in view of my previous findings on the credibility of that Plaintiff, I prefer the evidence of DesRosiers. Therefore I conclude that there was no false imprisonment of either Plaintiff. Furthermore I accept the evidence of DesRosiers in that the manner in which the search of the residence was carried out was in accordance with Departmental procedure.



1.            Pecuniary

87     The Plaintiffs' claim of $196,619,67 is broken down as follows:




Legal fees in criminal











Lost income for Paul Smihal -





($11,450.38 U.S.D. x 1.5





Exchange Rate)











Lost income for Elizabeth Tucker
















Stock Holdings Loss in 2000











Car Rental Expenses arising





from seized vehicles.






Lost opportunity billings





for Paul Smihal of





200 hours x $185.00 per hr.
















88     I disallow the various components of this claim for the following reasons:


*              The claims for both Smihal and Tucker in the sum of $17,175.57 and $3,456.00, respectively, for lost income cover periods of time when each of them was employed on salary. There was no evidence before me that their absences for the purpose of trial or any other matters related to the criminal proceedings resulted in any loss or diminution of income, vacation days, sick days or otherwise.

*              With respect to the three claims of lost income by Smihal of one day for each of June 27, July 18, August 20th and October 1, 2001, while the fee accounts of his counsel total only 1.42 hours, Smihal claims he took the entire day off on each occasion. While he was now self-employed, and the time involved might support a claim for lost billing opportunity, nevertheless I choose to disallow them on the basis that because of the purely administrative nature of the attendances, he was not required to be there. In any event, there was no evidence tendered as to what his income loss would be for those three days.

*              Smihal also asserts a claim for lost billing opportunities of 200 hrs. at his rate of $185.00 per hr. for a total of $37,000.00 covering the same period of time. I similarly disallow this claim for two reasons: Firstly, virtually all of the time in question occurred while he was still a salaried employee not engaged in private practice and therefore he did not sustain any lost billing revenue; secondly, any time expended on week-ends to review documents would be something that one would ordinarily expect him to undertake in assisting his defence counsel with the kind of serious charges he was then facing.

*              Because I have found DesRosiers' actions reasonable and without malice or ill will, I am not prepared to allow the $605.00 car rental expense claim.

*              Smihal also claims to have sustained a stock loss in 2000 totalling $35,042.87 as a result of having to sell investments to pay legal fees. However, as I heard no evidence as to whether any of this could be re-couped as a tax loss against other income, I choose to make no finding on this issue.

89     Additionally, while the Plaintiffs were successful before Nosanchuk J. and the charge against them was ultimately withdrawn, this does not automatically entitle them to damages. They must prove that the Defendants in this action have acted with ill will and malice. As I have found, they did not. Therefore the Plaintiffs are precluded from engaging s. 24(1) to assert a claim under this head of damages as well.

2. Tort Damage Claims

90     The Plaintiffs also make separate claims for punitive, aggravated and exemplary damages. As established in the Whiten v. Pilot Insurance Company case, 209 D.L.R. (4th) 257, punitive damages can only be imposed where there has been high handed, malicious, callous, arbitrary or highly reprehensible conduct on behalf of the defence that departs to a marked degree from the ordinary standards of decent behaviour. These damages are awarded as a form of civil fine where other penalties are likely to be inadequate, to achieve the objectives of retribution and denunciation and, where ordinary compensatory damages are insufficient to accomplish these objectives.

91     In view of my findings that the conduct of the Defendants, especially DesRosiers, demonstrated neither malice nor ill will and that his and the behaviour of the other agents was reasonable, I conclude that the Plaintiffs have not established a case for either punitive or exemplary damages.

92     Nor are they entitled to aggravated damages which are only awarded to take into account any additional harm caused to the Plaintiffs' feelings by the conduct of the Defendants which might be considered to be outrageous or malicious. Again, in view of my findings, I dismiss this claim also.

3. Non-Pecuniary Claim by Ms. Tucker for P.T.S.D.

A. Dr. Ron Frisch

93     Elizabeth Tucker alleges that as a result of the shock, anxiety and embarrassment she experienced from this incident, she developed post traumatic stress disorder, commonly referred to as P.T.S.D. This was the diagnosis made by Dr. Ron Frisch, a clinical psychologist who assessed the Plaintiff and testified on her behalf. In support of his diagnosis Dr. Frisch relied on the Diagnostic and Statistical Manual, the D.S.M. IV published by the American Psychiatric Association.

94     Defence counsel objected to the introduction of his evidence on the basis that as a non-medically trained person he would be expressing an opinion, which was based on a medical text and/or medical symptoms.


*              After hearing submissions from counsel I permitted Dr. Frisch to testify on this issue but reserved my decision as to what weight I would attach to it.

95     Dr. Frisch testified that he assessed the Plaintiff on four occasions and based his opinion that she suffered from P.T.S.D. on the notes he took and on his clinical experience with other patients.

96     His notes indicate that she had withdrawn from social and family relationships, although not from her husband which he admitted one would normally expect to see.

97     He did agree in cross-examination that a traumatic event triggering a P.T.S.D. condition usually involves a rape, a robbery, a life threatening situation or someone being a prisoner of war, as opposed to the case of Ms. Tucker passively sitting in the living room in her house for 2 or 3 hours while the Customs officials conducted their search. This would hardly qualify as a traumatic event. However, in his view, it's not the event but rather one's perception of it and one's vulnerability that can lead to a P.T.S.D. diagnosis. Therefore, if Ms. Tucker perceived the raid on her house as being a threat to her personal space, she could then perceive this as a threat which could lead to a P.T.S.D. condition.

98     He also concluded that the motor vehicle accident in 1995 in which her grandson was killed could be categorized as a prior event that could create a pre-disposition, almost akin to the condition of a "thin-skulled" Plaintiff, with respect to P.T.S.D.

B. Dr. Wayne Furlong

99     Dr. Wayne Furlong, a treating and a forensic psychiatrist, was called by the defence. His medical qualifications and his extensive experience in this field were impressive. I therefore accepted him as a medical expert qualified to give opinion evidence on the subject of P.T.S.D.

100     For the purpose of preparing his report he met with the Plaintiff and reviewed all the medical documents which had been produced to defence counsel.

101     Prior to his interview he took a mental status examination and found Ms. Tucker to be a pleasant and personable lady who displayed no depressive motor activity and was focused in her manner of speech and thought.

102     In preparation for trial, he reviewed the report which had been prepared by Dr. Frisch dated May 21, 2003, and noted the diagnosis of P.T.S.D. Dr. Furlong stated that he had problems with this opinion and described a number of deficiencies in Dr. Frisch's report and his approach in assessing Ms. Tucker:


*              Dr. Frisch should not have assessed Ms. Tucker together with her husband, as a forensic tool.

*              Dr. Frisch did not set out his conclusions or his back-up reasons for the same.

*              There was no assessment of the affect of Ms. Tucker's grandson's death on her present condition.

*              Dr. Furlong noted that she had mentioned to Dr. Frisch a reduction in her work hours but she admitted to him that this was brought about as a consequence of the financial constraints at her employer and not because of the stress relating to this incident.

*              She cried during the interview with Dr. Furlong, but only with respect to the criminal trial, and not the initial raid on her home.

*              From a professional perspective, he had some concerns about the propriety of Dr. Frisch conducting an assessment and at the same time offering to undergo treatment with her. Dr. Furlong testified that this is not good practice, as the two should be kept separate because of the difference in goals and aims.

*              While Dr. Frisch diagnosed a P.T.S.D. condition, he didn't define it.

*              Dr. Furlong stated that there was an insufficient history taken by Dr. Frisch and that there were inaccuracies in what he did take. He stressed the importance of history in diagnosing any medical condition.

103     Therefore, in Dr. Furlong's opinion, this Plaintiff does not have P.T.S.D.; none of the so-called traumatic events involved here would pass the threshold of that definition.

104     However, he fully understood that Ms. Tucker would feel stress and upset with respect to the criminal trial and the cost of the litigation as well as the social stigma attached to being charged in this matter. He also agreed that she probably felt this was all unfair but in his opinion an emotional response to a bad event is not abnormal. Conversely, if Ms. Tucker had displayed no emotional response whatsoever, this might be a cause for concern. In other words, an emotional response alone does not create a P.T.S.D. condition. The emotional response he detected was fully within the range of normal human behaviour.

105     With reference to the DSM IV for the diagnosis of a P.T.S.D. syndrome, Dr. Furlong listed its essential features.


(i)           Extreme traumatic stressors, causing one to think that death or serious injury is eminent.

(ii)         This would be accompanied by an intense fear, and as well, a feeling of hopelessness or horror.

(iii)        The differential diagnosis would also suggest that the stress must be extreme and life threatening and would include such things as military combat, a serious assault, torture, being a prisoner of war or being confined to a concentration camp.

106     When he asked her what event she thought was most threatening to her, Ms. Tucker described different things at different times during the interview alternating between the initial raid on her home and the trial. In his opinion none of these issues meets the P.T.S.D. threshold.

107     While the previous tragedy involving the death of her grandson, is no doubt a negative event which would produce a sense of grief and bereavement he concluded that she has gone on to deal fairly well with it. Therefore, this is not a P.T.S.D. issue either.

108     In his experience, Dr. Furlong stated that apart from the description of the P.T.S.D. syndrome in the D.S.M. IV there are two other factors which are significant to this diagnosis; a disassociation and a numbing arousal of the central nervous system. The arousal he observed here was really just the anger she felt about the litigation process and having to pay a large sum of money for legal fees as well as the social stigma or embarrassment surrounding this event. This is completely different than the trauma experienced by someone engaged in military combat or confined to a P.O.W. or concentration camp.

109     Dr. Furlong concluded with the observation that the two major themes that ran through his assessment of Ms. Tucker were the monies paid and the social embarrassment. While either or both of these would be expected, given her recent experience, neither of them is indicative of a P.T.S.D. condition.

110     Having heard the testimony of these two witnesses and having reviewed their reports which were filed, I prefer to accept the evidence of Dr. Furlong, whose credentials and experience make him eminently qualified on this issue.

111     I found his testimony to be clear, compelling and incisive and I have no hesitation whatsoever in accepting it.

112     Accordingly, I conclude that the Plaintiff Elizabeth Tucker has not sustained a P.T.S.D. condition as a consequence of these events and therefore dismiss her claim for such.


113     The answers therefore to the issues listed in paragraph [22] are as follows:


(i)           The Defendants were not motivated by malice or ill will. Therefore the answer to this question is "no".

(ii)         The Plaintiffs' rights under s. 7 were not breached by any of the Defendants. The issue regarding their rights under s. 8 is res judicata for the Attorney General of Canada and the Canada Customs and Revenue Agency but not the Defendant Rick DesRosiers.

(iii)        Because of the answer to (i), the Plaintiffs suffered no damages.

114     The action therefore is dismissed with costs.

115     If counsel are unable to agree to the same I may be spoken to.