Judge dismisses long-running lawsuit by Saint John cop
There's nothing to prove that Miramichi's police chief and a prosecutor were acting maliciously, illegally or in bad faith when they signed off on charges against a Saint John cop in 2010, a judge has ruled.
Court of King's Bench Justice Darrell Stephenson dismissed a long-running lawsuit by Const. Chris Messer against the province, the City of Miramichi and its police chief, Brian Cummings, in a decision filed April 4. In the lawsuit, first filed in 2016, Messer alleged malicious prosecution and misfeasance in office relating to charges of threats and assault dating to 2010, as well as breach of a Charter right to evidence disclosure.
After an alleged break-in at his house in the South Bay area in September 2010, Messer was alleged to have threatened a man, Brett McAdam, in the back of a police car and assaulted another, Randy King, during an arrest in separate incidents in the belief that the men had been involved.
On Sept. 25, 2010, four days before the second complaint against Messer was filed, his house was the target of an alleged drive-by shooting, resulting in no injuries and no charges, according to evidence cited in the ruling.
Prosecutor Bill Richards, now retired, approved charges of uttering threats, assault causing bodily harm, and indictable assault after an independent investigation by Cummings, appointed at the request of the Saint John Police Force. Cummings, then Miramichi's deputy police chief, was promoted to chief on April 16 this year, 14 days after the ruling was filed. The city was named in the lawsuit as it is Cummings' employer.
Messer was convicted by a judge in 2012 of "threatening conduct," which was overturned on appeal in 2013. Messer was exonerated in 2015 after a new trial for an assault charge was stayed over delays. He was reinstated in 2015, Brunswick News has reported, and Stephenson wrote in his ruling that he remains a Saint John police officer.
Messer's lawsuit, which alleged Cummings swore the charges "maliciously ... to destroy Messer's career and reputation," included 17 hearings over three years, with two days of cross-examinations in November 2022 and 1,120 pages of case records before final arguments in August 2023, Stephenson wrote.
The province and Cummings asked Stephenson to skip the trial and go straight to a decision, while Messer said a full trial is needed to fully answer whether the police met the "requisite standards of care" in his case.
In the first incident, on Sept. 7, 2010, Messer questioned McAdam in a police cruiser out of sight of other officers, where McAdam alleged Messer threatened to kill or maim him after he denied involvement in the break-in, while Messer said in a statement he threatened only that police would arrest McAdam if he was involved, according to the ruling. McAdam had been stopped by officers for unrelated reasons and Messer had arrived, seeking information about the break-in, according to the ruling.
In the second incident, on Sept. 22, 2010, Messer and King had an altercation after the latter had been arrested on an unrelated warrant, with Messer accusing him of being involved in the break-in and King denying it. Messer says he punched King three to four times during a struggle after King tried to leave the police car, according to the ruling, while King alleged he was hit in the back seat anywhere from eight to 14 times in different statements.
During the two days of cross examination, Cummings said he felt McAdam was telling the truth based on his "demeanour, body language and narrative," according to the ruling. Cummings said he hadn't investigated the break-in itself or the drive-by shooting. He also hadn't "accorded significance" to the fact that King had claimed to have six previous convictions under oath when the number was 29, or inconsistencies in the number of times King said he was struck, wrote Stephenson.
Mark Mendelson, a former police investigator from Toronto called by Messer as an expert, said in an affidavit that there wasn't probable cause to arrest Messer. He said that Cummings over-relied on the statement from McAdam, who had a 1986 conviction for filing a false police report, and didn't give enough weight to King's changing story, or the fact that King initially claimed to have six prior convictions when the number was 29. Mendelson also said Cummings didn't follow up with two officers whose testimony at preliminary inquiry was different than in their initial reports.
In cross-examination, Mendelson acknowledged that Messer should have had no involvement in the investigation of his break-in, should have been turned away from the traffic stop with McAdam and should not have been alone with King.
The judge said the officers had a "difference" in opinion but that he could not rule out whether there was a triable issue regarding the "standard of care." But Stephenson wrote that under provincial law protecting police officers, Messer's claim against Cummings could only succeed if the judge found the chief was acting in bad faith.
At final arguments in 2023, Messer's lawyer Barry Mason argued Cummings should have had doubts about the statements against his client and cited Mendelson's evidence that Cummings had "tunnel vision" and failed to investigate the connections between the break-in and the drive-by shooting.
Stephenson wrote that even if Cummings' investigation had been deficient, "nothing ... disclosed anything approaching bad faith on the part of Mr. Cummings," or malice. He wrote that the court "has been more than patient in affording Messer an opportunity to put forward something compelling" over multiple appearances, including the cross-examinations.
Stephenson said a "questionable issue" was raised in cross-examination relating to Cummings' relationship with David Tanasichuk, a Miramichi man who was convicted of murdering his own wife and was arrested in an attempt on Cummings' life in 2003. Tanasichuk was King's uncle by marriage, but Stephenson said he accepted Cummings' answer that the chief did not believe there was a connection "between his investigation of Mr. King and anything that Mr. Tanasichuk might or might not do."
The claim of malicious prosecution against the province was withdrawn by Messer at final arguments, leaving claims of misfeasance in public office and a charter rights breach related to evidence disclosure. The judge found that the province is protected from claims of this type, and if it wasn't, there was "no genuine issue requiring a trial" regarding the province because Messer had not alleged or proven "deliberate unlawful conduct" by Richards.
The charter rights allegation was dismissed because a hearing to argue whether the relevant evidence should be disclosed was in the works when the original case was stayed, Stephenson wrote. Messer was ordered to pay costs of $5,000 each to the province and Miramichi, plus taxable disbursements.
In a statement Thursday, Messer said the case began 14 years ago with the break-in and "attempted murder of my family" in the drive-by shooting, and "has since involved so much more," alleging death threats, extortion attempts, conflict of interest and a cover up, among other allegations.
"I truly believe the public deserves to hear all the wrongs in this case no matter the decision," he said. "We put our faith in the judicial system of this province and country to protect us when we have been wronged, (and) the system crucified me to protect themselves."
Messer said he and lawyer Barry Mason have not yet decided whether to appeal.
The province's department of justice said it "has no comment," according to spokesperson Allan Dearing. When asked for comment on behalf of either Miramichi or Cummings, communications director Gail Harding said the city "has no comment other than to say we are happy it has come to an end."
- With files from Sean Mott and Mike Landry
Andrew Bates, Local Journalism Initiative Reporter, Telegraph-Journal
