Form 10

[Rule 3.25]^

COURT FILE NUMBER / nGED

COURT COURT OF QUEEN'S BENCH OF
ALBERTA

JUDICIAL CENTRE EDMONTON

PLAINTIFF DARYL FUHR

DEFENDANTS HER MAJESTY THE QUEEN IN RIGHT

OF ALBERTA

DOCUMENT Brought under the Class Proceedings Act

STATEMENT OF CLAIM

ADDRESS FOR SERVICE Mintz Law

AND CONTACT
INFORMATION OF PARTY
FILING THIS DOCUMENT
Attn: Avnish Nanda
400, 10357-109 Street NW
Edmonton, AB T5J 1N3
Telephone: 780-425-2041
Facsimile; 780-425-2195
Email: ananda@mintzlaw.ca

NOTICE TO DEFENDANT

You are being sued. You are a defendant.

Go to the end of this document to see what you can do and when you must do it.

Note: State below only facts and not evidence(Rule 13.6)

Statement of facts relied on:

1. The Plaintiff Daryl Fuhr("Fuhr") is a resident of Alberta.

2. The Province of Alberta ("Alberta"), through its agents, employees, and officers, was
and is at all material times, responsible for the establishment, operation, management,
administration, supervision, and funding of provincial correctional facilities and police
and courthouse cells, the Alberta Sheriffs Branch, the Clerk of the Court of Queen's
Bench of Alberta, and the Clerk of the Provincial Court of Alberta.
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3. Alberta is responsible for the care and control of prisoners in its custody, including
prisoners in provincial correctional facilities, courthouses, police cells and in commute
between correctional facilities and courthouses.

4. Her Majesty the Queen in Right of Alberta is named in place of Alberta, and its agents,
employees, and officers, in this action pursuant to section 12 of the Proceedings Against
the Crown Act, RSA 2000 c P-25.

Overview of the Claim

7. This claim is brought by Fulir who seeks Court approval to prosecute this action as a
class action on behalf of the proposed class members, as defined below ("Class" or
"Class Members").

8. Fuhr, along with the other Class Members, were charged with criminal offences, were not
granted interim judicial release, and were eventually acquitted of all charges, had all
charges stayed or withdrawn, were granted non-custodial sentences, or had any of these
combinations occur.

9. However, despite being acquitted of all charges, having all charges stayed or withdrawn,
being granted a non-custodial sentence, or having any of these combinations occur.
Alberta kept Fuhr and the Class Members in custody pursuant to the practices and
policies of Alberta including the Alberta Sheriffs Branch.

10. There was no lawful basis for Alberta to hold Fuhr and the Class Members in custody
after being acquitted of all charges, having all charges stayed or withdrawn, being
granted a non-custodial sentence, or had any of these combinations occur, and this
detention constitutes an unlawful deprivation of their liberty interests as protected under
the common law and under the Charter ofRights and Freedoms.

11. This claim seeks to remedy the Class Members for the harms they suffered as a result of
Alberta unlawfully detaining them in these circumstances.

The Class Members

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12. Fuhr brings this claim on his own behalf and on behalf of the proposed Class Members,
which consists of all persons who have been held in custody in Alberta on a warrant of
committal based on being remanded in custody in a prosecution and who have continued
to be detained in custody when the underlying legal basis for their detention disappeared
or extinguished on or after September 5, 2016.

13. Similar to Fuhr, the Class Members was charged with a number of criminal offences,
denied interim judicial release, and were acquitted of all charges, had all charges stayed
or withdrawn, were granted a non-custodial sentence by the court, or had any of these
combinations occur.

14. However, Alberta continued to keep the Class Members in custody.

15. Alberta knew or ought to have known that it had no lawful authority to detain the Class
Members and continue to hold them in custody.

The Proposed Class Representative Plaintiffs Circumstances.

16. Fuhr is the Proposed Class Representative Plaintifffor the Class Members described
above.

17. Fuhr was charged with a number of offences, denied judicial interim release, and found
not guilty of all charges on May 11, 2018 at about 4:00 p.m. in a criminal trial held in
Edmonton before The Honourable Justice J.H. Goss. While in transit between the

Edmonton Remand Centre and the courthouse and while at trial and in the courthouse, he
was a prisoner in the custody, care and control ofthe Alberta Sheriffs Branch.

18. Despite being found not guilty, Alberta detained Fuhr and held him in custody against his
will.

19. Alberta justified its conduct through the "practices" and "policy" ofthe Alberta Sheriffs
Branch that Fuhr would remain in custody until he was "processed" and "paperwork" had
been done. There was no lawful basis to continue to hold Fuhr in custody after being
acquitted of all charges, notwithstanding the practices and policies of the Alberta
Sherriffs Branch.
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20. Fuhr objected to his detainment, and Tom Engel, defence counsel to Fuhr, requested the
Honourable Justice J.H. Goss to return to the courtroom to resolve the matter.

21. The Honourable Justice J.H. Goss returned and ordered Fuhr's immediate release as soon

as it was confirmed there were no warrants for him.

22. However, in breach of Justice Goss' Order, the Alberta Sherriff s Branch continued to
hold Fuhr in custody.

23. Fuhr was wrongfully imprisoned for approximately 2.5 hours following his acquittals.

Alberta's Systemic Breach of the Rights of the Class Members

24. Fuhr and the Class Members were held in custody prior to and during their criminal trials
or hearings on warrants of committal based on being remanded into custody while their
criminal charges were being processed.

25. When Fuhr and the Class Members were acquitted of all charges, had all charges stayed
or withdrawn, or were granted a non-custodial sentence by the court, then the legal basis
for their detention disappears or is extinguished.

26. There is no lawful basis for the continued detention of Fuhr and the Class Members after

a court has acquitted them of all charges, stayed or withdrawn the charges against them,
were granted non-custodial sentence, or ordered any of these combinations.

27. However, Alberta has a practice and policy of continuing to detain those people until they
have been "processed" and "paperwork" has been done.

28. In addition. Alberta has a practice and policy of continuing to hold Class Members in
custody who have been transported to court from a correctional facility or police lockup.
After being acquitted of all charges, having all charges stayed or withdrawn, being
granted a non-custodial sentence, or having any of these combinations occur, the Class
Members remained imprisoned, and many were not released from the courthouse but
were transported in restraints back to the correctional facility or police lockup they were
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housed in by a prisoner cage-type transport vehicle owned and operated by Alberta, and
remanded to prison until the correctional facility or police lockup processed them and
completed paperwork.

29. This practice and policy constitutes a systemic breach of the rights ofthe Class Members,
as the Class Members are unlawfully imprisoned the he moment the legal basis for that
imprisonment disappears or is extinguished.

30. Alberta has no lawful authority to detain the Class Members or to continue to imprison
them.

Alberta Falsely Imprisoned the Class Members

31. Alberta committed the tort offalse imprisonment against the Fuhr and the Class
Members.

32. Alberta detained the Class Members against their will, depriving them of their liberty,
and without any legal justification.

Alberta Breached the Charter Rights of the Class Members

Section 7

33. Section 7 of the Charter states:

7. Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles offundamental
justice.

34. Alberta deprived Fuhr and the Class Members of their liberty interests under section 7 of
the Charter.

35. This deprivation was the result of unlawful and arbitrary state action, would shock the
conscience of Canadians, breaches the principle of legality, and fails to accord with other
principles offundamental justice.

Section 9
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36. Section 9 of the Charter states:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

37. Alberta arbitrarily detained and imprisoned Fuhr and the Class Members without legal
justification or lawful authority.

Section 12

38. Section 12 of the Charter states that:

12. Everyone has the right not to be subjected to any cruel or unusual treatment or
punishment

39. Alberta's detention and continued detention of Fuhr and the Class Members constitutes

cruel and unusual treatment that outrages the standards of decency in Canadian society.

40. Fuhr had been acquitted of all charges, to his immense relief, but continued to be
imprisoned against his will and with no lawful authority, constituting cruel or unusual
treatment and punishment.

Section 1

41. Section 1 of the Charter states:

1. The Canadian Charter ofRights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.

42. Alberta's conduct is not a reasonable limit prescribed by law that can be demonstrably
justified in a free and democratic society pursuant to section 1 ofthe Charter.

Alberta was Negligent in the Discharge of its Duties to the Class Members

Negligence

43. Alberta owed a duty of care to Fuhr and the Class Members to treat them with the same
standard of care that would attach to other individuals not subject to warrants of
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committal based on being remanded into custody while their criminal charges are being
prosecuted.

44. As arrested persons, Alberta owed a further duty to Fuhr and the Class Members to
ensure they were not unlawfully imprisoned.

45. Further, or in the alternative, Alberta was required to take care to protect the health and
well-being of the Fuhr and the Class Members and to otherwise give reasonable
consideration to their interests, including their constitutional rights.

46. Alberta breached the duty of care owed to the Class Members by detaining and
imprisoning them after they were released as a result of being acquitted of all charges,
having all charges stayed or withdrawn, being granted a non-custodial sentence, or
having any of these combinations occur.

47. Fuhr and the Class Members suffered harm because of Alberta breaching the duty of care
it owed them,including, but not limited to the significant intrusion to and denial oftheir
personal liberty.

48. The harms suffered by the Class Members as a result of Alberta breaching the duty of
care it owed to them were proximate, direct, and reasonably foreseeable at all material
times.

Alberta Breached the Fiduciary Duty that it Owed to the Class Members

49. Alberta was in a position of trust and authority over the Class Members as the party
responsible for directing and administering the correctional and justice system in the
province, with the Class Members in its care and control.

50. Alberta had a fiduciary duty to ensure that the liberty and rights ofthe Class Members
were upheld and maintained at all times, including after being acquitted of all charges,
having all charges stayed or withdrawn, being granted a non-custodial sentence, or
having any of these combinations occur.
51. This fiduciary duty arises from the discretion and power Alberta had over the Class
Members, and their particularly vulnerable status in the care, control, and custody of the
state.

52. Alberta breached its fiduciary duty by detaining and continuing to imprison the Class
Members unlawfully, even when knowing that there was no warrant of committal or any
other basis to continue to hold them in custody.

53. Fuhr and the Class Members suffered hann because of Alberta breaching the fiduciary
duty it owed them,including, but not limited to the significant intrusion to and denial of
their personal liberty.

A Class Proceeding is Appropriate

54. The Class Members as individuals cannot match the resources of the Defendants. The

individual claims of some individual Class Members would not be economical to pursue
individually. The Class Members would be denied access to justice in the absence of a
class proceeding.

55. It is unlikely that, in these circumstances, an individual could or would seek prospective
relief to deter future misconduct by Alberta. Alberta is sufficiently large and well-
resourced that an individual lawsuit is unlikely to have a significant impact on its
behaviour.

56. The allegations regarding the torts and breaches of duties owed to the Class Members by
Alberta are common to the claims of the proposed Class Members. Determination of the
nature and extent ofthe commission of the torts and duties owed are common to the

claims made.

57. The allegation that Alberta is liable for the conduct of its agents, employees, and services
is common to the claims made.

58. The Charter issues raised in this action are common issues that can be determined on a

common basis.
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59. In addition, the following are common issues to the claims of the proposed Class
Members:

a. the practices and policies of Alberta that caused it to unlawfully hold the Class
Members in custody;

b. whether the actions of Alberta merit an award of punitive damages is a common

issue that can be determined on a common basis; and

c. such further and other common issues as shall be proven at trial.

60. The proposed Representative Plaintiff can fairly and adequately represent the interests of
the Class Members.

61. The proposed Representative Plaintiff and the Class Members propose that the trial of the
common issues take place at the Edmonton Law Courts in the City of Edmonton, in the
Province of Alberta.

62. The trial shall take no more than 25 days.

63. The proposed Representative Plaintiff and Class Members plead and rely on the Class
Proceedings Act, SA 2003,c C-16.5 and Alberta Rules ofCourt, Alta Reg 124/2010.

Remedy sought:

64. Fuhr and Class Members seek:

a. An order certifying this action as a class proceeding and appointing Fuhr as the
representative ofa class to be certified by the Court;

b. A declaration that Alberta's conduct has breached the constitutional rights ofthe
Class Members, as protected under sections 7, 9, and 12 ofthe Charter ofRights and
Freedoms;

c. General damages for the Class Members in an amount to be determined by this Court;
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d. Special damages, loss of income, future loss ofincome and cost offuture care in an
amount to be determined by this Court;

e. Charter damages pursuant to section 24(1)of the Charter ofRights and Freedoms'^

f. Punitive and exemplary damages in an amount to be determined by this Court;

g. An order, pursuant to s. 30 of the Class Proceedings Act, RSA 2003, c C-16.5

directing an aggregate monetary award;

h. An order, pursuant to s. 32 of the Class Proceedings Act, RSA 2003, c C-16.5

allowing for the use of standard claim forms or other documentary evidence or such
other procedure as warranted under the circumstances;

i. An order that the damages be paid by Alberta into a common fund and distributed to
the Class Members in an appropriate manner as directed by the Court;

j. Pre-judgment and post-judgment interest;

k. Any applicable Goods and Services Tax;

1, The costs ofthis action on a substantial indemnity basis;

m. The costs of administering the plan of distribution of the recovery in this action; and

n. Such further and other relief deemed appropriate by this Court.

NOTICE TO THE DEFENDANT

You only have a short time to do something to defend yourself against this claim:

20 days if you are served in Alberta

1 month if you are served outside Alberta but in Canada

2 months if you are served outside Canada.

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You can respond by filing a statement of defence or a demand for notice in the office of the
clerk ofthe Court of Queen's Bench at Edmonton, Alberta, AND serving your statement of
defence or a demand for notice on the plaintiffs address for service.

WARNING

If you do not file and serve a statement of defence or a demand for notice within your time
period, you risk losing the lawsuit automatically. If you do not file, or do not serve, or are
late in doing either of these things, a court may give a judgment to the plaintiffs against you.