Conservation officer Randy Tippin said he just wanted to ensure a man facing charges under the Fisheries Act knew about a looming deadline to accept or reject a plea offer, but he and the Ontario government have instead ended up on the hook for $10,000 in damages over a voicemail he left for the accused disparaging his lawyer.
“I basically feel your lawyer is pretty much incompetent which is why I’m making this call,” said Tippin, who had charged Jarvis Sameluk with three offences under the Fisheries Act several years ago.
“I just feel that things have been mishandled grossly up until this point,” Tippin later added in his voicemail to Sameluk on March 31, 2006.
Tippin, according to Cornell’s reasons for judgment, was worried about a March 29 deadline to respond to a plea offer from the Crown. On March 30, he spoke with the Crown, who told him his office had provided Bird with a second copy of the letter outlining the plea offer after the first one had been lost. On March 31, he spoke with Sameluk’s son, who was also facing Fisheries Act charges and said he knew nothing about the plea offer.
The ruling notes Tippin then concluded Sameluk also wasn’t aware of the offer despite the fact he and his son had different lawyers. He then called Sameluk’s business line informing him of the urgency to respond to the plea offer and making the disparaging remarks about Bird.
In fact, Bird had met with Sameluk on July 27 and he had instructed her not to accept the offer. When Sameluk called Bird after listening to Tippin’s voicemail, she told him the letter hadn’t been lost; rather, she had asked for another copy as it wasn’t easily accessible while she was moving her office. She continued to represent Sameluk through his trial and appeal. Tippin admitted to defaming Bird but asserted the defence of qualified privilege.
In ruling against Tippin last week, Cornell rejected his defence of qualified privilege as well as his assertion that he had a moral duty to call Sameluk given his concern about the status of the plea offer. In doing so, he raised concerns about a peace officer calling the accused directly rather than leaving it to the lawyers to handle the matter.
“Given Mr. Tippin’s position as a peace officer, his ability to investigate and to lay charges, his involvement with previous charges involving Jarvis Sameluk, the potential threat to the voluntariness of a guilty plea, the threat that if the offer was rejected, the full penalty would be sought as well as the danger of the destruction of the solicitor-client relationship, can it be said that Randy Tippin had a moral duty to place the impugned telephone call? Given the dangers and concerns that have been outlined, I think not,” he wrote in Bird v. Ontario.
“In view of this finding, I have reached the conclusion that on the facts of this case, the defendants have failed to satisfy the onus that lies upon them to establish that this was an occasion of qualified privilege.”
In the end, Cornell awarded Bird $10,000 in damages rather than the general damages of $50,000 plus $100,000 to $250,000 in punitive damages she sought. As part of her lawsuit, Bird had claimed Tippin’s employer, the Ontario government, was vicariously liable for his actions.
For her part, Bird says she has long had concerns about authorities' conduct in the case against her client and had at one point brought an application to stay the charges against him over abuse of process.
"This isn't the only conduct involved in this case that was quite frankly outrageous," she says, noting her unsuccessful application under the Charter of Rights and Freedoms for a stay. "This has gone on for a long, long time.
"It was the one thing I could still pursue in terms of the wrong that had occurred in my mind," she says of the defamation claim.
Bird notes part of the goal was to send a message to conservation officers about their conduct when it comes to their enforcement role.
"The same people who do the licensing are the same people who enforce and charge and arrest," she says, noting conservation officers sometimes do things "police officers wouldn't even think of doing."
In addition, the message was also about clarifying the lines of communication, in particular the importance of speaking to counsel when the accused has a lawyer, she says.
"The point is these guys are walking a fine line all of the time."
Update 2:15 pm: Comments added from Mary Bird.