INTRODUCTION AND FACTS

1. This is a case of considerable difficulty. It may not involve breaking new ground but does invite the court to better mark an old trail—a path which has more often been followed in England, Australia and New Zealand than in Canada.
2. The defendant Staff Sgt. Jennings (Jennings) was a designated media relations officer with the RCMP, and it is his conduct with which we are concerned. The Attorney General of Canada is vicariously liable for whatever responsibility may be found to rest with Jennings or the RCMP. The action against Corporal Renkas has been discontinued.
3. On May 23, 1997, Renkas was an investigator in the Commercial Crimes Section of the RCMP. He obtained warrants for a search of the premises of the plaintiffs (Baziuk and Uni-Jet) and two other companies engaged in the sewer contracting business. The warrants were in furtherance of an investigation into allegations of fraud respecting sewer construction jobs in several urban and rural municipalities in Manitoba.
4. On the morning of May 26, 1997, based on information received from Renkas, Jennings, unsolicited and on his own initiative, volunteered to three of his media contacts that the search warrants were about to be or were in the course of being executed. There was no denial by Jennings that, as was suggested to him in cross-examination, his objective was to curry favour and enhance his own relationship with the working press.
5. The alerted journalists and photographers attended upon the plaintiffs’ premises that same morning. Subsequently thereto there was extensive reporting of the event including newspaper stories, photographs and television coverage describing police officers carrying boxes out of the premises. The "Report to a Justice" required by s. 489.1(1) of the Criminal Code (1997) (the Code) was executed and filed on May 30, 1997.
6. It was not until mid-February 1998 that the plaintiffs or the public were advised that no charges would be laid against Baziuk personally or his corporation. The plaintiffs believe that they have been aggrieved by Jennings’ conduct and have claimed general, punitive, exemplary and special damages, since it is not contested that people in the construction industry, customers and friends of the plaintiffs were aware of what was happening as a result of the media coverage.
7. Jennings acknowledged that before any communication had taken place there was a report at his disposal which referred to the fact that "the media may show an unusual interest in this file, and it would be to our advantage to keep Sgt. Jennings appraised [sic] of the file." Whether he actually chose to read the memo was never made clear.
8. When cross-examined on the subject Jennings did not deny that he appreciated that there was a risk of harmful repercussions and embarrassment to the plaintiffs when he gave his tips. That is he knew what he was doing and he knew what results would probably ensue.
9. This action was brought under various heads set forth in the following allegations in the statement of claim:

17. The Plaintiffs state that the Defendants had no entitlement or authority to advise the media of the execution of a search warrant and their actions in doing so constituted an abuse of governmental and public authority, and a malicious and callous indifference to the economic interests of the Plaintiffs.

19. The Plaintiffs state further, additionally and alternatively, that the Defendants were negligent in advising the Winnipeg Free Press and the Winnipeg Sun about the execution of the search warrant when they had not at the material time sufficient evidence to believe that they would be laying charges against the Plaintiffs. Once it was determined that the Plaintiffs had not performed any unlawful acts such that they could be charged criminally, the Plaintiffs state that they had already sustained damage to their reputation by virtue of the publication in the media of the execution of the search warrant.

22. The Plaintiffs state that the conduct of the Defendants was intended by them to cause harm to the Plaintiffs. Alternatively, the Plaintiffs state that the Defendants [sic] conduct was intentional, and they were wilfully blind, reckless or callously indifferent to whether harm would be caused to the Plaintiffs. In the premises, the Defendants have committed the torts of abuse of process, and abuse of governmental and/or public authority.

10. The plaintiffs did not plead defamation, nor did they commence a proceeding pursuant to The Privacy Act, C.C.S.M., c. P125. Prior to the trial they abandoned the claim propounding the tort of abuse of process. The issues remaining at trial were whether the defendants should be found liable to pay damages by reason of either the negligence or the abuse of public office by Jennings and, if so, how damages should be determined.
11. Throughout these proceedings there has never been any dispute and the trial judge found that Jennings, in offering the "scoops" to the media, had failed to comply with the guidelines set forth in the RCMP Operational Manual with respect to "Media/RCMP Relations." There, it is provided that:

C. 2. Unless information compromises privacy legislation, investigational information and techniques, a suspect’s or victim’s rights, … it may be released to accredited media.

D. 1. Cooperation with the media can assist in accurate, balanced media coverage.

E. 1. b. Do not reveal the names of suspects until charges have been laid.

F. 4. Ensure the information r eleased to the media does not:

. . . . .

F. 4. c. result in injury, injustice or embarrassment to the innocent or accused.

12. Counsel for the defendants insists that this failure to comply with the manual, while contrary to RCMP policy, was at worst an act of bad judgment. He argued that the defendants could not be found liable in negligence based upon a duty of care based solely on the standard of care set forth in the manual.
13. The trial judge made no finding of acts of negligence except to say (at para. 19) that "Jennings breached the said provisions of the Operational Manual and, as a result, caused injury, injustice and embarrassment to Baziuk and injustice to Uni-Jet." He further stated (at para. 21):

My finding as a fact that officer Jennings did not abide by the provisions of the policy manual is the basis for attributing negligence to him. His actions, however, were not vindictive against the plaintiffs, and therefore this is not a case for exemplary or punitive damages.

He could identify no actual loss of income or profit but did award $20,000 in general damages to Baziuk and a token $1 to Uni-Jet. The $20,000 was stated to be compensation for injury to his reputation and the significant embarrassment suffered as a result of the publication (at para. 25).

14. The trial judge did not purport to make any finding whatsoever concerning the tort of abuse of public authority or public office. Having found negligence, he simply stated (at paras. 22-23):

Counsel for both parties have provided the court with many authorities. I have not read all of them because, after reading the headnotes of many of the cases, I concluded that many of the cases were not relevant due to the factual circumstances being very different from the facts in this case as I have found them.

As I have indicated above, I am satisfied that Jennings did not act out of any spite or ill will towards the plaintiffs. It is clear, however, that Jennings knew that, in notifying the media while the searches were ongoing and before any charges were laid, his actions would likely injure the plaintiffs, especially the reputation of Baziuk.

15. Nothing more need be said to explain my conclusion that the judge erred in finding, based solely on non-compliance with the manual, that Jennings had committed any compensable breach of a duty to take care which he owed to the plaintiffs. As the RCMP say, the policy contained in the manual should be used "more as a guideline than as a ‘bible’." It might be one factor to be considered in determining the standard of care expected, but it cannot be determinative. Aside from this legal error in determining the standard of care, the trial judge erred in failing to find the pecuniary damages that are an essential ingredient for the tort of negligence.
16. I hasten to repeat that the judge also erred by avoiding the allegation of abuse of statutory or public authority. I am convinced that if liability is to be found against the defendants, it is under this latter heading, and if damages are to be allowed, it is in accordance with the principles applicable to so-called "intentional" torts.
17. The defendants have appealed the finding of liability for negligent breach of any duty to the plaintiffs and for the damages found to have flowed therefrom. The plaintiffs, while not conceding that the judge erred, suggest that negligence was, in fact, only an alternative argument. Certainly the thrust of their factum and their oral presentation in this court is focussed on the cross-appeal, that is on the argument that the trial judge erred in not finding the appellants liable for the tort of abuse of public authority. Although I agree that this was the essence of the appeal, I must observe that neither counsel for the plaintiffs nor for the defendants developed this part of their arguments as well as they should have. That is why these reasons for judgment refer to statutory provisions and to some judicial decisions that have not been previously mentioned.

DISCUSSION OF THE ALLEGED TORT

18. Before going further, it might be helpful to comment on the terminology that I have been using. "Abuse of public authority" is the term most often employed by the plaintiffs to describe the alleged misconduct of the defendants. During argument, however, we have heard references to "abuse of statutory authority," "abuse of public office," and "misfeasance in public office." Throughout the proceedings these phrases were used synonymously. They are also used interchangeably in the reports to which I have referred from England and other parts of the Commonwealth. It may be that the expression "misfeasance in public office," commonly used in England, is most descriptive. I am satisfied, however, that nothing really turns on this point and I will use the descriptions interchangeably.
19. Whatever term is used, it should be understood that compensable abuse of public office is an intentional tort (like, for example, defamation or malicious prosecution). Both the actual conduct and the mental state of the alleged tortfeasor must be examined. The situation is, perhaps, analogous to proving the actus reus and the mens rea in criminal law.
20. By 1801 in England a tort of public misfeasance or abuse of office had been identified (Harman v. Tappenden (1801), 1 East 555 (E.R.)), but proof of malice in the strict sense of the word was required. Since that time Commonwealth case law reveals a lessening or liberalizing of the mental element that must be proved. For an overview of this evolution, one can refer to decisions over the years such as McGillivray v. Kimber (1915), 52 S.C.R. 146; Roncarelli v. Duplessis, [1959] S.C.R. 121; Gershman v. Manitoba Vegetable Producers’ Marketing Board (1976), 69 D.L.R. (3d) 114 (Man. C.A.); Dunlop v. Woollahra Municipal Council, [1982] A.C. 158 (P.C.); Bourgoin SA and others v. Ministry of Agriculture, Fisheries and Food, [1985] 3 All E.R. 585 (C.A.); and Odhavji Estate v. Toronto (Metropolitan) Police Force, [1998] O.J. No. 5426 (Q.L.) (Gen. Div.).
21. In addressing the case before us, there are two elements to be examined. Firstly, did Jennings hold some public office or statutory authority that he exercised improperly and, secondly, was his intent or state of mind of the kind that attracts liability for damages?

WHEN ACTING AS HE DID, WAS JENNINGS THE HOLDER OF A PUBLIC OFFICE OR OF STATUTORY AUTHORITY?

22. In my view, the answer to the question in the above heading must be in the affirmative. Jennings did hold a defined public office and did exercise statutory duties, the source and nature of which I will examine briefly.
23. Jennings was a peace officer and a member of the RCMP. The duties of such officers are outlined broadly in Part I of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act). Specifically and directly relevant to this case is s. 18(b) of the RCMP Act. It stipulates:

18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

. . . . .

(b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers.

24. To complete the picture, s. 37 of the RCMP Act and the Oath of Office prescribed in a schedule thereto are worthy of note. Section 37 provides, in part:

37. It is incumbent on every member

(a) to respect the rights of all persons;

(b) to maintain the integrity of the law, law enforcement and the administration of justice.

25. The prescribed oath is in the following form:

I, . . . . ., solemnly swear that I will not disclose or make known to any person not legally entitled thereto any knowledge or information obtained by me in the course of my employment with the Royal Canadian Mounted Police. So help me God.

26. It is against this background that the provisions of Part XV of the Code regulating the issue and exercise of search warrants must be examined. The RCMP Act lays down general standards of conduct for officers. The Code is more detailed and makes even clearer the obligation to consider privacy rights of the individual.
27. It seems to me that at the very least Jennings acted improperly when he released the information about the search before the warrant had been executed and before the Return to the Judge had been executed or filed. If I am correct in that impression, then he violated the Code and breached the statutory authority given with respect to his public duties under the RCMP Act.
28. In Attorney General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175, a journalist applied for a declaration that he was entitled to inspect search warrants and the information used to obtain them after he had been refused access to such documents by the court clerk.
29. That case arose out of circumstances quite different from those now before us. However, Dickson J., in analyzing the search warrant provisions of the Code, began with a review of the policy issues involved in determining accessibility to the general public of warrants and the underlying information. He found that (at p. 183):

The question before us is limited to search warrants and informations. The response to that question, it seems to me, should be guided by several broad policy considerations, namely, respect for the privacy of the individual, protection of the administration of justice, implementation of the will of Parliament that a search warrant be an effective aid in the investigation of crime, and finally, a strong public policy in favour of "openness" in respect of judicial acts.

He examined in detail the balance that must be made between privacy and administration of justice. With respect to privacy, he stated (at p. 184):

The first might be termed the "privacy" argument. It is submitted that the privacy rights of the individuals who have been the object of searches would be violated if persons like Mr. MacIntyre were permitted to inspect the warrants. It is argued that the warrants are issued merely on proof of "reasonable grounds" to believe that there is evidence with respect to the commission of a criminal offence in a "building, receptacle or place". At this stage of the proceedings no criminal charge has been laid and there is no assurance that a charge ever will be laid. Moreover, search warrants are often issued to search the premises of a third party who is in no way privy to any wrongdoing, but is in possession of material necessary to the inquiry. Why, it is asked, submit these individuals to embarrassment and public suspicion through release of search warrants?

30. I will dwell no longer on this judgment except to point out that on the particular facts there Dickson J. ended with the declaration (at p. 190):

… that after a search warrant has been executed, and objects found as a result of the search are brought before a justice pursuant to s. 446 of the Criminal Code, a member of the public is entitled to inspect the warrant and the information upon which the warrant has been issued pursuant to s. 443 of the Code.

31. MacIntyre was a pre-Charter decision, but in subsequent cases his reasoning has not been questioned (e.g. Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, and Southam Inc. v. Coulter (1990), 60 C.C.C. (3d) 267 (Ont. C.A.).
32. I have not overlooked s. 487.2 of the Code which purports to deal with restrictions on publicity about searches by newspapers or broadcasters. In Canadian Newspapers Co. Ltd. v. Attorney-General of Canada and two other actions (1986), 32 D.L.R. (4^th) 292 (Ont. H.C.J.), and Canadian Newspapers Co. Ltd. v. Attorney-General of Canada (1986), 31 D.L.R. (4^th) 601 (Man. Q.B.), courts in Manitoba and Ontario found this section to be of no force and effect in view of the unreasonable restrictions it places on the freedoms guaranteed by s. 2(b) of the Charter. The decisions do not, however, impinge upon the view of Dickson J. with respect to privacy at least up to the time that the execution of the search has been completed and the Report to the Judge filed. By that time the blitz on the plaintiffs by the electronic media could not have occurred. The photo opportunity would have already passed.
33. This review of the RCMP Act, of the obligations contained in the search provisions of the Code and of the authorities satisfies me that at the times relevant hereto Jennings held a public office; he had statutory authority; and the manner in which he conducted himself amounts to a failure to carry out the duties attached to his public office and constitutes a breach of his statutory authority. That conclusion, however, says nothing about the state of mind that is required if he is to be found responsible for the tort which has been alleged.
34. Before I turn to the question of intent, a further comment should be made about the provisions of the RCMP Operational Manual which was the subject of so much attention by the judge at trial and by counsel throughout. The manual is supportive of the conclusions I have reached, but it does not in itself form the basis of Jennings’ statutory duty or authority.
35. Section 21 of the RCMP Act provides that:

21(1) The Governor in Council may make regulations

(a) respecting the administrative discharge of members;

(b) for the organization, training, conduct, performance of duties, discipline, efficiency, administration of good government of the Force; and

(c) generally, for carrying the purposes and provisions of this Act into effect.

36. The RCMP Act, in the definition section, also refers to what are known as "Commissioner’s standing orders" which are defined as follows:

(2) The rules made by the Commissioner under any provision of this Act empowering the Commissioner to make rules shall be known as Commissioner’s standing orders.

37. Publication of an operational or policy manual is not unusual. Such documents are commonplace in governmental and commercial operations. There is, however, nothing that gives the manual or any part thereof the status of a regulation or a Commissioner’s standing order. It does not have the force of law and cannot be the basis for either of the torts that were alleged by the plaintiffs. Danch v. Nadon and the Government of Canada (1977), 18 N.R. 568 (Fed. C.A.), and Armstrong v. Royal Canadian Mounted Police Commissioner (1994), 24 Admin.L.R. (2d) 1 (F.C.T.D.), support this conclusion as they do Jennings’ own response when he said at the trial:

Well this is an outline, a guideline. This is a base on which to formulate a course of action. In the absence of any other considerations, this would be a suggested course of action.

38. I think it can be safely said both that the manual is not a regulation or standing order with any attendant force of law. By itself, it cannot be taken either as a definition of the standard of care required or as a description of statutory authority.

MENTAL ELEMENT OF THE TORT

39. Assuming Jennings exercised his public office in a manner that was contrary to statutory authority, it still remains to be determined whether, by contemporary standards, Jennings can be said to have had the state of mind that is required to make his conduct tortious. How far past Harman v. Tappenden and the need to prove wilful and malicious intention has the common law moved?
40. For quite some time Canadian and Commonwealth courts have accepted that, as a minimum, "targeted malice" was a necessary element of the cause of action. In Roncarelli, the plaintiff restaurateur was a Jehovah’s Witness who often posted bail for fellow Witnesses arrested for violating municipal bylaws governing the distribution of pamphlets. Under the Alcoholic Liquor Act, R.S.Q. 1941, c. 255, the Liquor Commission had discretionary power to issue or cancel liquor licences. The defendant, who was the Premier and Attorney-General of Quebec, instigated or directed that the plaintiff’s liquor licence be cancelled and, moreover, the defendant announced publicly that the plaintiff would be barred "forever" from obtaining a licence.
41. The Supreme Court was of the view that cancellation of the licence was not for a legitimate purpose of the Alcoholic Liquor Act, but was discriminatory as it intended to punish Roncarelli for his involvement with the Jehovah’s Witnesses.
42. Rand J. wrote (at p. 141):

… [W]hat could be more malicious than to punish this licensee for having done what he had an absolute right to do in a matter utterly irrelevant to the Liquor Act? Malice in the proper sense is simply acting for a reason and purpose knowingly foreign to the administration, to which was added here the element of intentional punishment by what was virtually vocation outlawry.

. . . . .

The act of the respondent through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the province.

43. The implied statutory public duty referred to by Rand J. is that of good faith, as described at p. 143:

"Good faith" in this context, applicable both to the respondent and the general manager, means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status.

44. I am aware, too, that there are relatively recent judgments where the existence of the tort which we are considering was recognized but where it was found that the necessary mental element was lacking. In the English case of Dunlop v. Woollahra Municipal Council, the allegation was one of damage to the plaintiff by enacting planning resolutions restricting the height of proposed buildings, which were invalid. Lord Diplock wrote (at p. 172):

In pleading in paragraph 15A of the statement of claim that the council abused their public office and public duty the plaintiff was relying upon the well-established tort of misfeasance by a public officer in the discharge of his public duties. Yeldham J. rightly accepted that the council as a statutory corporation exercising local government functions was a public officer for the purposes of this tort.

The court agreed with the trial judge’s opinion that without knowledge of the invalidity of the bylaws, the passing of a resolution that is without legal effect is not conduct that, in itself, amounts to the misfeasance that is a necessary element of the tort.

45. The cases involving targeted malice were fairly well defined and easy to identify, but I think it must now be accepted that the meaning of the word "motive" has evolved further so that the tort may now be established by proving a mental element less blatant than the actual intention to harm a particular plaintiff. The very recent (and lengthy) decision which was rendered by the House of Lords in Three Rivers District Council v. Bank of England, [2000] H.L.J. 32 (Q.L.), must be considered. There, pursuant to a number of banking statutes, the Financial Services Authority (essentially the Bank of England) had statutory authority over deposit-taking institutions. One of the member deposit-taking institutions was a Luxembourg corporation called B.C.C.I. At some point in time the Bank of England petitioned the High Court to appoint liquidators for B.C.C.I. This resulted in the closure of B.C.C.I. and a loss to thousands of depositors.
46. The depositors sued, claiming that named senior officials of the Banking Supervision Department of the Bank acted in bad faith in (a) licensing B.C.C.I. in 1979, when they knew it was unlawful to do so; (b) in shutting their eyes to what was happening at B.C.C.I. after the licence was granted; and (c) in failing to take steps to close B.C.C.I. when the known facts cried out for action at least by the mid-1980s.
47. A preliminary issue, which found its way up to the House of Lords, was whether, if the pleaded facts were true, a cause of action based on the tort of misfeasance in public office was sustainable in law.
48. Four Law Lords wrote concurring reasons on the requirements for the mental element of the tort. All of their reasons are enlightening, but I will refer to only a few paragraphs from one of the opinions.
49. Lord Hobhouse of Woodborough commenced with the following instructive comments (at p. 37):

The next requirement also relates to the official’s state of mind but with regard to the effect of his act upon other people. It has three limbs which are alternatives and any one of which suffices.

First, there is what has been called ‘targeted malice’. Here the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable. This limb does not call for explanation. The specific purpose of causing loss to a particular person is extremely likely to be consistent only with the official not having an honest belief that he was exercising the relevant power lawfully. If the loss is inflicted intentionally, there is no problem in allowing a remedy to the person so injured.

Secondly, there is what is sometimes called ‘untargeted malice’. Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences. (Garrett v. Attorney-General [1997] 2 N.Z.L.R. 332, 349-350)

Thirdly there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involved in the intended act. His recklessness arises because he chooses wilfully to disregard that risk.

50. In the course of rendering the judgments in Three Rivers references were made to significant decisions in the Commonwealth, one from Australia and the other from New Zealand.
51. In Northern Territory of Australia v. Mengel et al. (1995), 69 A.J.L.R. 527 (H.C.), the plaintiffs suffered financial loss as a result of a government quarantine of its cattle, but where it was later found that the government inspectors had acted beyond the scope of their authority. They knew that the plaintiff cattle owners would suffer loss as a result of their action, although this was not their aim. The plaintiffs argued that the inspectors had constructive knowledge in the sense that they should have known that they were acting beyond their authority and that this is sufficient to establish the tort of misfeasance in public office. The reasons of the majority are extensive but I have selected only the following paragraphs in order to illustrate the thrust of the judgment. At paras. 60-63 it is stated:

The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v. Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.

If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. However, that is not what was put in this case. The argument was that it is sufficient that the officer concerned ought to have known that he or she lacked power.

Once foreseeability is accepted as a requirement in cases based on actual knowledge, it follows that the argument that a public officer is liable for misfeasance if the officer ought to know that he or she lacks power is, for practical purposes, the same as saying that the officer is under a duty not to exceed his or her power if there is a risk of foreseeable harm. Indeed, so much was implicit in the statement of counsel for the Mengels that they were also entitled to succeed in negligence if the Inspectors were liable for misfeasance in public office by reason that they ought to have known that they were acting without authority.

52. Garrett v. New Zealand (Attorney-General), [1997] 2 N.Z.L.R. 332 (C.A.), was a case involving the alleged failure of the police to have investigated a complaint of rape. The action was dismissed. In the course of its reasons for dismissing an application for a new trial the Court of Appeal stated:

Proceedings for the tort of misfeasance in public office, also known as abuse of public office, have never been common. Early in its development an essential ingredient was malice on the part of the defendant: a deliberate and vindictive act by a public official involving a breach of duty and directed towards the plaintiff. This has come to be known as "targeted malice". But the tort is no longer so confined. It can also be committed by an official who acts or omits to act in breach of duty knowing about the breach and also knowing harm or loss is thereby likely to be occasioned to the plaintiff. As will appear from the following discussion, "knowing" in relation to both the breach and its effect on the plaintiff includes acting recklessly, in the sense of believing or suspecting the position and going ahead anyway without ascertaining the position as a reasonable and honest person would do.

53. In this country, while the tort of abuse of public office has been considered by a number of trial courts, there is little appellate authority on the issue of non-targeted malice.
54. Those trial decisions to which I refer are fairly recent and show a marked inclination to follow the same route taken in other jurisdictions.
55. Alberta (Minister of Public Works, Supply & Services) v. Nilsson, [1999] 9 W.W.R. 203 (Alta. Q.B.), involved the dispute between a property owner and the government regarding use restrictions on property that he wanted to develop. The owner brought an action for abuse of public office alleging that the government illegally froze land purchases through the "restricted development area" designation in an attempt to depress land values. Marceau J. began by referring to targeted malice and to cases such as Roncarelli and Gershman. He then reviewed the Commonwealth authorities to which I have referred, including the Three Rivers case (which at that time had only gone to the Court of Appeal). Marceau J. then expressed his opinion as follows (at paras. 107-108):

As previously stated, the tort of abuse of public office in Canada is firmly rooted in the targeted malice line of cases, where intent to harm forms the basis for the tort without any further mental element being required. An alternative basis for liability in the tort also exists. The majority decision in Three Rivers, supra, stands for the proposition that in addition to targeted malice, liability for misfeasance in public office is established where there is knowledge or recklessness regarding both the authority to act and the harm that is known (or foreseen) to result from the illegal actions. This proposition maintains a clear and fundamental distinction between negligence on the part of public officials and abuses of power, while allowing the tort to sanction behaviour that may not be as blatantly wrong as targeted malice, but is an abuse of power nonetheless. Such abuses may occur when zealous civil servants over-step their authority for what they believe is the best interests of the public without due regard for individuals consequently harmed, or when executive decisions are made which bend the rule and injure a few to avoid politically undesirable consequences. Whatever the facts may be, Three Rivers, supra, broadens the scope of the tort beyond the "targeted malice" cases while maintaining the element of deliberate misconduct as the underlying substance of the tort.

Based on the foregoing, the appropriate test for abuse of public office in Canada can be stated as follows:

Has there been deliberate misconduct on the part of a public official? Deliberate misconduct is established by proving:

1. an intentional illegal act, which is either:

(i) an intentional use of statutory authority for an improper purpose; or

(ii) actual knowledge that the act (or omission) is beyond statutory authority; or

(iii) reckless indifference, or willful blindness to the lack of statutory authority for the act;

2. intent to harm an individual or a class of individuals, which is satisfied by either:

(i) an actual intent to harm; or

(ii) actual knowledge that harm will result; or

(iii) reckless indifference or willful blindness to the harm that can be foreseen to result.

56. It is interesting to note that in their factum counsel for the defendants specifically referred to Nilsson and acknowledged to the court that it is the proper test in Canada for the requisite mental element. They do not concede, though, that there has been a breach of statutory duty.
57. In the past decade there have been a number of other Canadian trial decisions which could be cited but would serve no useful purpose. By and large they are repetitions of Commonwealth jurisprudence that I have already reviewed. They simply provide further confirmation that the old idea that malice requires evidence of ill will or spite is no longer sustainable.
58. An exception to my observation about the paucity of Canadian appellate authority concerning malice can be found in our own province. I refer to Gerrard et al. v. Manitoba and Muirhead (1992), 81 Man.R. (2d) 295 (C.A.). There the plaintiff, a British resident, immigrated to Canada, purchased land in Manitoba and became a landed immigrant. When unable to succeed at farming he proposed a sale of his farmland to two Europeans. The sale did not close and the plaintiff, his wife and personal corporation sued the province and the Manitoba Agricultural Lands Protection Board for malicious interference in economic or trade relations, and also for the tort of misfeasance in public action. At trial the action failed on both counts.
59. In dismissing the appeal Scott C.J.M. found that the defendant Muirhead did not frustrate the sales because of any improper motivation or in excess of his authority. No reference will be made to his comments concerning the claim of malicious interference in economic and trade relations. However, I would observe that when addressing the second alleged tort he stated (at para. 25):

The law is essentially similar with respect to the tort of misfeasance in public office. Although the tort of misfeasance in public office appears to be relatively unknown in Canada, it was nevertheless referred to as early as 1981 by Lord Diplock in Dunlop v. Woollahra Municipal Council, [1982] A.C. 158, at 172, as "well established" in England. In Bourgoin SA and others v. Minister of Agriculture, Fisheries and Food, [1985] 3 All E.R. 585 (Q.B.D.), 602 (C.A.), it was held that malice or knowledge are alternatives. In the absence of malice, if a public officer knows that there is no power to do what is being done, and that his act will likely injure the plaintiff, this is sufficient to establish liability.

60. The only further case reference which I will make to the few appellate decisions which came to my attention will be Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans) (1995), 123 D.L.R. (4^th) 180. It is a decision of the Federal Court of Appeal where Robertson J.A. expressed himself as follows (at p. 196):

In its earliest form, the tort of misfeasance in a public office was limited to cases where a public officer (a person exercising a statutory or prerogative power) abused a power actually possessed. Once it was shown that a decision was tainted with malice in the sense that there was an intent to inflict injury on the plaintiff then the invalid decision gave rise to a claim in damages. With time, the tort was extended to include cases in which decision-makers knew that they did not possess the power which they purported to exercise. Today, the administrative tort is established once it is shown that the invalid decision is tainted by either malice or knowledge: see Chhabra v. Canada, [1989] 2 C.T.C. 13 at pp. 17-19 … and Francoeur v. Canada [(1994), 78 F.T.R. 109] ….

61. I believe this to be a clear and accurate statement of the law pertaining to the tort of misfeasance in public office as it stands today, and by that standard Jennings is culpable. It remains to be determined, of course, by what standard damages are to be measured and how much should be awarded.

 

DETERMINATION OF DAMAGES

62. The trial judge, after finding the defendants’ liability in negligence, stated (at para. 25) that he was "satisfied that the injury to his [Baziuk’s] reputation, and the pain and embarrassment suffered as a result of the publicity, should be compensated by payment of general damages in the amount of $20,000." He attributed a token $1 loss to the corporate defendant and (at para. 26) awarded judgment "in favour of the plaintiffs jointly against both defendants in the sum of $20,001 plus costs."
63. It is trite to even mention that an appellate court should not lightly interfere with an award of damages made by a trial judge. I think, however, that the situation which exists here is so different from the routine that the court is justified in putting aside its usual restraint. Because there was a misdirection as to the very nature of the claim, whatever the quantum of damages, we must ignore the judgment and make our own assessment based upon the standards which apply to the tort actually committed—that is the intentional tort of abuse of public office.
64. The statement of claim, based on both negligence and breach of public office, asserts that the plaintiffs are entitled to awards for general damages as well as to awards for punitive, aggravated and exemplary damages. It has now been determined that only the damages flowing from the latter tort can be in issue.
65. My initial focus will be on the individual plaintiff Baziuk. How is he personally to be compensated for the damage to his feelings, self-esteem, reputation and emotional wellbeing which were caused by the misfeasance committed against him?
66. As a principle, it can be safely stated that the general damages awarded for intentional torts resulting in this kind of injury are damages "at large." Unlike the damages caused by negligence, precise measurement or limits should not be expected. The concept of damages at large was well articulated by Goodridge C.J.N. in Farrell v. Canadian Broadcasting Corporation (1987), 43 D.L.R. (4^th) 667 (Nfld. C.A.), when he said (at p. 669):

Damages other than for material loss are termed "damages at large." These have been variously defined but appear generally to mean general damages consisting of non-economic loss and exemplary damages in appropriate cases.

Lord Hailsham of St. Marylebone in Cassell v. Broome [[1972] A.C. 1027] suggested as follows at p. 1073:

The expression "at large" should be used in general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and where in consequence no precise limit can be set.

Because they include compensation for loss of reputation, damages at large probably encompasses economic loss that can be foreseen but not readily quantified.

67. In Vale v. Internat. Longshoremen’s and Warehousemen’s Union, Loc. 508, [1979] 5 W.W.R. 231 (B.C.C.A.), a judgment where Seaton J.A. dissented in the result but concurred on this point, he said succinctly that damages at large are "a matter of impression and not addition" (at p. 238). In more colloquial language, we might say that damages at large are subject to calculation by "gut reaction" rather than by calculator. O’Sullivan J.A. in Gershman said (at p. 126):

In actions of this kind, in any event, the damages are at large. In Roncarelli, supra, at p. 709, Rand, J., said:

Any attempt at a precise computation or estimate must assume probabilities in an area of uncertainty and risk. The situation is one which the Court should approach as a jury would, in a view of its broad features ...

68. When addressing intentional torts, J. G. Fleming, The Law of Torts, 8^th ed. (London: The Law Book Company, 1994), embraced the concept of damages at large and said (at p. 622):

Indeed, once the plaintiff has successfully negotiated the difficult hurdles set by law in this action, juries are not discouraged from responding with a liberal verdict, since the assessment of damages provides a good opportunity for registering the condemnation, shared by judges and laymen alike, of flagrant abuses of legal process.

69. In the commonly cited English defamation case of Ley v. Hamilton (1935), 153 L.T. 384 (H.L.), Lord Atkin approached the difficulty in assessing damages by saying (at p. 386):

It is precisely because the "real" damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.

70. This statement has been cited with approval by our Supreme Court and various Canadian appellate courts. By way of example, I cite McElroy v. Cowper-Smith, [1967] S.C.R. 425, and Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3d) 161 (C.A.).
71. My last case reference with respect to damages at large is the well-known libel case of Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. There, Cory J. stated (at para. 187):

At the outset, I should state that I agree completely with the Court of Appeal that each libel case is unique and that this particular case is in a "class by itself." The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants. It follows that there is little to be gained from a detailed comparison of libel awards.

72. The authorities referred to all lead to the inescapable conclusion that damages at large are a matter of impression; they must include the consideration of a host of circumstances involving both the particular plaintiff and the particular defendant, and they are likely to be unique in each case.
73. With respect to the individual plaintiff, for example, such considerations as his position, status and prior reputation in both his social and commercial community quickly come to mind. With respect to Jennings’ conduct and circumstances, the mode and the extent of his communication with the media, his timing, his motivations and his understanding of the risk of harm are all factors which should be considered.
74. I will later direct my attention to the claim for punitive damages. For the moment, I do no more than stress that "aggravated damages" and "punitive damages" are not synonymous terms. Aggravated damages are, like general damages at large, intended to bring fair compensation to an aggrieved plaintiff. Punitive damages are an expression of the court’s condemnation of the tortfeasor’s intentional, reckless or otherwise unacceptable behaviour. If punitive damages are imposed, they will be over and above the compensatory damages inclusive of any aggravated damages. Although punitive damages may, in fact, turn out to be a windfall for the plaintiff, they should be seen as a punishment imposed to express the court’s displeasure.
75. Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 (C.A.), Hill v. Church of Scientology of Toronto, and Norberg v. Wynrib, [1992] 2 S.C.R. 226, are all cases which deal with these distinctions.
76. In Walker, Robins J.A. observed that (at p. 111):

Aggravated damages are damages which take into account the additional harm caused to the plaintiff’s feelings by such reprehensible or outrageous conduct on the part of the defendant. Their purpose is compensatory and, being compensatory, they properly form part of a general damage award.

77. In Hill, Cory J. quoted (at para. 183) with approval from Gatley on Libel and Slander (8^th ed.):

In awarding "aggravated damages" the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous, rather than a more moderate award to provide an adequate solatium . . . that is because the injury to the plaintiff is actually greater, and, as the result of the conduct exciting the indignation, demands a more generous solatium.

78. Finally, I note that in Norberg, La Forest J. stated (at p. 264):

Although aggravated damages will frequently cover conduct which could also be the subject of punitive damages, as I noted, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate.

79. I have no doubt that the personal injury suffered by Baziuk must have been significant. The question now to be addressed is whether an award made can be reflective of the conduct of Jennings or whether there should be an additional item of compensation under the heading of aggravated damages.
80. Needless to say I am concerned by Jennings’ reckless and unnecessary communication with his press contacts, accompanied by his admitted appreciation of its likely aftermath. He knew that there was no need or purpose for exposing Baziuk to a media onslaught at the very moment when the search and seizure were taking place. I note also, however, that no one, including the trial judge, has suggested that spite, ill will or targeted personal malice were motivating factors.
81. All of the foregoing discussion leads me to the conclusion that Baziuk can receive fair compensation at large which reflects both his own hurt and the quality of Jennings’ conduct without the addition of a separate and extra amount bearing the label "aggravated damages."
82. After considering all of the unauthorized and unnecessary conduct by Jennings and the trauma to Baziuk and his family, I would assess general damages at large in his favour of $30,000.
83. There is no reason, however, to assume in this case that Uni-Jet, the corporate plaintiff, should be restricted to the purely token award designated by the trial judge. It is true that the company was not exposed to the embarrassment or humiliation that only a human being can experience. Nonetheless, Uni-Jet has a corporate reputation that was conspicuously called into question and possibly tarnished. While there is no evidence of actual lost income or corporate profit, there was certainly a risk that goodwill would be lost. In this case the corporate personality did not suffer in the same way as the natural person, but I have little doubt from the evidence that damage at large was experienced. Operating without precision or exactitude, I would set the amount at $15,000.
84. There remains now to consider the claim for punitive damages. Although such awards may come as a windfall to plaintiffs they are made, from time to time, by courts as a calculated declaration that certain conduct by public servants or agencies cannot be tolerated.
85. As I turn to this subject, it bears repeating that unlike general and aggravated damages, punitive damages are not compensatory. They are meant to punish a defendant and to express society’s outrage at his egregious conduct. They are like a civil fine that is meant to act as a deterrent not only to the wrongdoer but to others who might be inclined to act in a similar manner.
86. By way of judicial authority, I turn again to the Hill case, where Cory J. stated (at para. 196):

Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

87. These comments identify the challenge that rests with a court in making a decision as to punitive damages.
88. Jennings’ conduct, while contrary to statutory authority, reckless and self-serving, does not fall into the category of vindictiveness, targeted malice or illegality. There was no plot to injure the plaintiffs. The question that must be addressed is whether a more stringent test should be applied when scrutinizing the actions of powerful government agencies and their officials than might be used to judge ordinary individuals. Simply put, is Staff Sgt. Jennings, a peace officer who held a responsible position with Canada’s national police force, to be judged by a stricter standard than those who hold less power and command less respect?
89. In my opinion, the logical answer is, yes. This is a response which seems to find support in cases such as LeBar v. Canada (1988), 33 Admin.L.R. 107 (Fed. C.A.); Health Care Developers Inc. v. Newfoundland (1996), 141 Nfld. & P.E.I.R. 34 (Nfld. C.A.); Abbott v. Canada (1993), 64 F.T.R. 81 (F.C.T.D.); Namusa Enterprises Ltd. v. Etobicoke (City) (1990), 3 M.P.L.R. (2d) 227 (Ont. Gen. Div.); First National Properties Ltd. v. Highlands (District) (1999), 178 D.L.R. (4^th) 505 (B.C.S.C.); Longley v. M.N.R. (1999), 176 D.L.R. (4^th) 445 (B.C.S.C.), affirmed (2000), 184 D.L.R. (4^th) 590, 2000 BCCA 241; Rollinson v. Canada (1994), 73 F.T.R. 16 (F.C.T.D.); and Chhabra v. The Queen (1989), 89 D.T.C. 5310 (F.C.T.D.). From these examples I will include only a few quotations.
90. In LeBar MacGuigan J.A. wrote (at p. 121):

If, as seems clear to me, malice is not necessary for the existence of "oppressive, arbitrary or unconstitutional action by the servants of the government", the appellant’s argument serves only to strengthen the trial Judge’s finding that the conduct of the government was wilful and deliberate. As I have already said in dealing with an earlier argument, apparently persistent failure by the government to obey a clear judicial decision is not consonant with the principle of the rule of law.

91. In Hill, Cory J. stated (at para. 199):

Punitive damages can and do serve a useful purpose. But for them, it would be all too easy for the large, wealthy and powerful to persist in libelling vulnerable victims. Awards of general and aggravated damages alone might simply be regarded as a licence fee for continuing a character assassination. The protection of a person’s reputation arising from the publication of false and injurious statements must be effective. The most effective means of protection will be supplied by the knowledge that fines in the form of punitive damages may be awarded in cases where the defendant’s conduct is truly outrageous.

92. In Longley, the trial judge concluded that the appropriate award of punitive damages "intended to dissuade Revenue Canada from acting again in such a high handed, arrogant and dishonest way, is $50,000" (at para. 141).
93. On appeal, and in affirming the punitive award, Newbury J.A. wrote that the "award of punitive damages of $50,000 was generous to Mr. Longley and sufficient to mark the Court’s disapproval of Revenue Canada’s conduct, and indeed exceeds punitive damage awards made in recent cases against Revenue Canada for high-handed conduct of taxpayers’ claims" (at para. 25).
94. I am sure that Jennings was not an evil man, but when an officer of the RCMP acts contrary to his statutory authority to advance his own self-interest knowing that damage might well result, this court is bound to express its disapproval publicly and forcefully. The appropriate way to make that expression is by imposing punitive damages against the defendants in the amount of $10,000 for each plaintiff. The net result of my conclusion is that there will be a judgment against the defendants in favour of the plaintiffs as follows:

In favour of Baziuk general damages at large $30,000

punitive damages $10,000

In favour of Uni-Jet general damages at large $15,000

punitive damages $10,000

TOTAL: $65,000

95. My comments about the defendants’ behaviour do not relate to the manner in which this litigation has been conducted. This is not a case for solicitor-client costs. In their statement of claim the plaintiffs asked simply for "costs of this action" and I order that they shall have their costs throughout on a party and party basis.