Saint John police officer's lawsuit over failed prosecution thrown out by judge
Eight years after it was filed, a judge has thrown out a lawsuit filed by a Saint John police officer against those involved with prosecuting him more than a decade ago.
The judge's decision to grant a summary judgment means the case will not go to trial.
In 2016, Const. Chris Messer filed a lawsuit against the Office of the Attorney General, the City of Miramichi and Brian Cummings, the deputy chief of the Miramichi Police Force who investigated assault and threat allegations against Messer.
The lawsuit alleged misconduct, including that the Crown acted "maliciously, for reasons other than the pursuit of justice, namely, to destroy Messer's career and reputation."
In a 64-page decision earlier this month, Justice Darrell Stephenson wrote, "Bottom line, there is nothing in the record that could support an inference of malice/bad faith/recklessly indifferent conduct on the part of Cummings. Consequently, Messer's claim for malicious prosecution against Cummings is either statute barred … or cannot succeed at law."
The judge made similar findings about the allegations against the province.
Messer's Halifax-area lawyer Barry Mason did not respond to a message left at his office, and Messer did not respond to a message sent to his work email.
A spokesperson for the Saint John Police Force declined to say whether Messer is on active duty.
Case began with a break-in
The case has a long and complicated history. It began in September 2010 after a break-in at Messer's home.
One of two men questioned by police about the break-in alleged he was threatened by Messer. The second man claimed to have been assaulted.
Three days after the assault allegations, there was a drive-by shooting at Messer's residence, while he was at home with his wife and child.
In 2012, Messer was convicted of threatening conduct and assault and spent six days in jail before being released pending appeal. He was later cleared of the threatening conduct charge, and a new trial was ordered on the assault charge.
In January 2015, Justice Judy Clendening stayed the new prosecution after the Crown failed to produce a police file as ordered by the court.
Sarah and Chris Messer, seen here in this file photo, told CBC they were at home with their child when someone shot at their house in September 2010. (CBC)
Messer returned to the Saint John Police Force not long after.
In 2016, Messer filed the lawsuit, claiming the investigation by Cummings was "performed improperly and negligently" and that his employer, the City of Miramichi, was vicariously liable.
Messer also alleged the Crown did not have "reasonable and probable grounds" for believing he had committed a criminal offence when it launched the prosecution, and that the Crown acted "maliciously, for reasons other than the pursuit of justice, namely, to destroy Messer's career and reputation."
In dismissing the case, Stephenson awarded costs in the amount of $5,000 to the province and $5,000 to Cummings and his employer, "plus taxable disbursements."
When contacted on Wednesday, Cummings declined to comment, while a spokesperson for Miramichi would only say they were "happy that it has come to an end."
At a court hearing in November, Cummings insisted he did a thorough investigation and said he still believed as strongly as he did in his 2017 affidavit that Messer was guilty of the charges that had been laid.
