ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GARY FRANK STAPLES, SUSAN MARIE STAPLES,
ROBERT DENISON and DARRIN BURKE
Plaintiffs
- and -
HAMILTON POLICE SERVICES BOARD,
KENNETH D. ROBERTSON, PETER BRACCI,
BRUCE ELWOOD, JAMES WILLIAMS,
JAMES CAMPBELL and NORMAN THOMPSON
Defendants
STATEMENT OF CLAIM
(Notice of Action issued April 26, 2001)
1. The plaintiffs' claim is for the following relief:
(a) All of the plaintiffs seek, as against all of the defendants:
(i) a declaration that the plaintiff Gary Staples did not murder Gerald G. Burke in Hamilton, Ontario, on December 5, 1969; and,
(ii) a declaration that the person(s) who did murder Gerald G. Burke in Hamilton, Ontario, on December 5, 1969, has or have not been brought to justice.
(b) All of the plaintiffs seek, as against the defendants the Hamilton Police Services Board and Kenneth D. Robertson, a mandatory order or an order in the nature of mandamus requiring that these defendants comply with their statutory and common law duties and forthwith cause a thorough and competent police investigation to be conducted into the murder of Gerald G. Burke in Hamilton on December 5, 1969, in order to bring or to attempt to bring the person(s) who murdered Gerald G. Burke to justice.
(c) The plaintiffs Robert Denison and Darrin Burke seek, as against all defendants, damages of $1.00 for negligence.
(d) The plaintiff Gary Staples seeks, as against all defendants:
(i) damages of $5 million for negligence, malicious prosecution, misfeasance in public office, conspiracy and assault and battery; and,
(ii) punitive, exemplary and aggravated damages in the amount of $1 million.
(e) The plaintiff Susan Marie Staples seeks, as against all of the defendants, damages of $100,000.00 pursuant to the Family Law Act.
(f) All of the plaintiffs seek, as against all of the defendants:
(i) Prejudgment interest in accordance with the Courts of Justice Act or in accordance with the equitable jurisdiction of this Honourable Court in respect of all damages awards; and,
(ii) the costs of this action, on a solicitor client basis.
The Plaintiffs
(2) The plaintiff Gary Staples lives in Dunnville, Ontario with his wife, the plaintiff, Susan Marie Staples. They were born on December 19, 1944 and November 19, 1960, respectively.
(3) On December 5, 1969, the plaintiff Gary Staples was 24 years old.
(4) The plaintiffs Robert Denison and Darrin Burke live in Smithville, Ontario and St. Catharine's, Ontario, respectively. They are brothers, born on May 22, 1967 and May 24, 1968, respectively.
(5) On December 5, 1969, the plaintiffs Darrin Burke and Robert Denison were one and 2 years old, respectively. They were the only children of Gerald G. Burke, who was 24 years old on that date.
(6) On December 5, 1969 at approximately 9:00 p.m., Gerald G. Burke was murdered. The circumstances of the murder are described below.
The Defendants
(7) The defendant Hamilton Police Services Board (the "Board") is constituted pursuant to the Police Services Act, R.S.O. 1990, c. P-15 and is:
(a) statutorily charged with, and otherwise responsible in law for, the effective and proper management and oversight of the Hamilton Police Service (the "Hamilton Police"), for directing and monitoring the due and proper performance and execution of all of the duties of the various sworn and civilian members of the Hamilton Police, and for managing, monitoring and directing the Chief of Police of the Hamilton Police in the due and proper performance and execution of his or her duties; and,
(b) is vicariously liable for the actions, omissions, misfeasance, nonfeasance and actionable and unlawful conduct of all sworn and civilian members of the Hamilton Police, including without limitation, all of the other various defendants in this action and every known and identified and every unknown and unidentified police officer referred to in this Statement of Claim.
(8) The Board and the Hamilton Police are, respectively, the successors of the Board of Commissioners of Police for the City of Hamilton and the Hamilton Police Department as these existed at the times which are material to this action.
(9) The defendants James Williams, James Campbell and Norman Thompson, (collectively the "investigating officers") are or were formerly sworn members of the Hamilton Police and were primarily responsible for investigating the murder of Gerald G. Burke.
(10) The investigating officers charged the plaintiff Gary Staples with having committed the murder, or were primarily responsible for causing him to be so charged. Thereafter, the investigating officers were primarily responsible for conducting, or for directing the Crown Attorney in the conduct of, the prosecution of the charge of non-capital murder against Gary Staples.
(11) The defendant Kenneth D. Robertson is the Chief of the Hamilton Police. He is:
(a) statutorily charged and otherwise responsible in law for the effective and proper day-to-day management and oversight of the Hamilton Police, and is responsible in law for the effective and proper training, supervision and oversight of all of the sworn and civilian members of the Hamilton Police; and
(b) is vicariously liable for the actions, omissions, misfeasance, nonfeasance and actionable and unlawful conduct of all of the sworn and civilian members of the Hamilton Police who are under his command, including without limitation, all of the various defendants to this action, (other than the Board), and all of the known and identified and unknown and unidentified police officers referred to in this Statement of Claim.
(12) The defendants Peter Bracci and Bruce Elwood are sworn members of the Hamilton Police responsible, inter alia, for the decision to conceal information from some or all of the plaintiffs in respect of the causes of action set out in this claim and for giving effect to that decision once it had been made, and for making and giving effect to the decision not to re-open any meaningful investigation into the murder of Gerald G. Burke.
The Murder
(13) On the evening of Friday, December 5, 1969, Gerald G. Burke was employed as a taxicab driver with the Kenilworth Kab Company. At the time, he was 24 years old, and married, with infant and toddler children at home, namely the plaintiffs Robert Denison and Darrin Burke. Mr. Burke worked occasionally as a taxicab driver to supplement his family's income.
(14) At approximately 9:00 p.m., Mr. Burke was murdered. He was shot twice in the head at close range while seated in the driver seat of his taxicab, which was parked on industrial land between the Canadian National Railway tracks and the Hammant Car Engineering Company factory on Dunbar Avenue in downtown Hamilton.
(15) Through a variety of means, it was subsequently conclusively established that Mr. Burke had been murdered at approximately 9:00 p.m. and that he had encountered the person(s) who murdered him at approximately 8:30 p.m.
(16) Mr. Burke's murderer(s) have never been found. He was not murdered by Gary Staples.
(17) Gerald G. Burke and Gary Staples never met, and never had any social, business or other dealing of any nature whatsoever. They were utter strangers and there was never any link of any type between them at any time.
(18) At 9:00 p.m. on December 5, 1969, the plaintiff Gary Staples was in a service station in Dunnville, Ontario, 50 kilometers from the site of the murder. A number of independent witnesses have confirmed that he was at the service station while his car was being repaired from 8:30 p.m. until 10:15 p.m. on this date, continuously and without any interruption.
(19) In ideal daylight driving conditions, in a test conducted by the investigating officers or other members of the Hamilton Police, it was determined that the 50 km drive from the site of the murder to the service station took a minimum of 30 minutes to drive (one-way).
(20) In addition to the numerous independent witnesses who have confirmed that Gary Staples was at the gas station in Dunnville continuously from 8:30 p.m. to 10:15 p.m. on December 5, 1969, two other independent witnesses have confirmed that he was travelling to and from, and was at, a Canadian Tire store in Dunnville to purchase a part for his car between 8:00 p.m. and 8:30 p.m.
(21) Another independent witness has confirmed that Mr. Staples was elsewhere in Dunnville, to discuss the car repair with a friend before going to Canadian Tire, and various members of his family confirmed his whereabouts at various locations in Dunnville continuously from 5:00 p.m. on December 5, 1969 until after 11:00 p.m. that night.
The Investigation
(22) Given its nature, Mr. Burke's death was identified as a homicide immediately upon his body being discovered. The death was investigated as a homicide by the investigating officers, namely the defendants James Williams, James Campbell and Norman Thompson, and by other sworn and civilian members of the Hamilton Police, whose identity is not known to the plaintiffs.
(23) At the outset of the investigation, various witnesses reported to the Hamilton Police that they had observed three young men at various locations in the neighbourhood near the murder site, both before and after the time of the murder, causing disturbances and other trouble.
(24) Among a number of sightings reported to police, the police were advised that three youths were spotted in a lunch-counter-type restaurant in the early morning hours, after Mr. Burke's body had been discovered. They were observed to be behaving oddly and became very nervous and fled when the topic of the murder was discussed among the patrons of the restaurant.
(25) On December 6, 1969, less than 24 hours after the murder had been committed, members of the Hamilton Police were contacted by and then interviewed a person called Wayne Salisbury, who was employed by Canadian National Railways at the time. The police determined that Wayne Salisbury worked as a car inspector for the railway on the 6 p.m. to 2 a.m. shift and that on December 5, 1969 at approximately 9:30 p.m., in the course of his employment, he had driven his car to a laneway close to the murder site. Mr. Salisbury saw Mr. Burke's taxicab, and after having observed the car for several minutes, saw three men run away from the cab, towards the west. At the time of this initial statement, Mr. Salisbury advised members of the Hamilton Police Service that he believed that the three men were in their early 20's or late teens.
(26) In the 48 hours immediately after the murder, members of the Hamilton Police also interviewed an individual called James Johnstone who, at the time, was 14 years old. He advised the police that he was also at the site of the murder on December 5, 1969 and that he had observed a single person alight from the taxicab at approximately 8:45 p.m.
(27) By December 8, 1969, less than three days after Mr. Burke had been murdered, it was evident to at least two of the investigating officers, namely the defendants Norman Thompson and James Williams, that it would be necessary to re-interview Wayne Salisbury, as a result of the fact that his statement was potentially (although not necessarily) inconsistent with that of James Johnstone, in that Mr. Johnstone reported seeing a single person alight from the cab at about 8:45 p.m., while Mr. Salisbury reported that he saw three persons run away from it at about 9:30 p.m.
(28) A second interview of Mr. Salisbury was therefore conducted by some or all of the investigating officers on December 11, 1969.
(29) When he was interviewed for a second time, Mr. Salisbury advised the investigating officers that his wife was with him in his car when he had seen the three youths run away from the taxicab, but that he had not mentioned this before because it was against the railways rules for him to have his wife with him while he was working. Mr. Salisbury confirmed that he had seen three people running away from the taxicab, and indicated that he thought that they might have been joined by a fourth person after they had crossed the railway tracks. His wife verified that she had seen exactly the same thing.
(30) There were no further significant developments in the police investigation until April 23 or 24, 1970, when members of the Ontario Provincial Police (the "O.P.P") arrested an individual called Mary Conklin, in connection with break-and-entry, robbery and theft offences they were investigating. Conklin indicated to the O.P.P that in exchange for favourable treatment in respect of these offences, she could provide the police with assistance in respect of the still unsolved murder of Mr. Burke the previous December.
(31) Members of the O.P.P. then called the Hamilton Police, and the investigating officers took a statement from Mary Conklin wherein she indicated that she had been in her home in Dunnville, Ontario, on the evening of December 5, 1969, with her cousin, one Ken Shellard, and that during the course of the evening, Gary Staples had arrived and indicated that he had just murdered and robbed a taxicab driver, acting by himself. Conklin recounted to the investigating officers that Gary Staples's alleged confession to the murder had taken place in the presence of her and her cousin, Ken Shellard.
(32) Subsequently, one or some combination of the investigating officers interviewed Ken Shellard, who was himself in prison at the time. No formal witness statement was taken from Ken Shellard.
(33) Immediately thereafter, and without any further investigation, one or some combination of the investigating officers arrested Gary Staples or caused him to be arrested. In particular, he was dragged from his bed in the middle of the night on or about April 26, 1970 and transported to the Dunnville Police Station. Subsequently, he was transported to a police station in Hamilton and then to the Barton Street Jail in downtown Hamilton.
(34) At the time of his arrest, during the initial questioning and at all subsequent times up to and including the present, Gary Staples has steadfastly maintained his innocence in respect of the murder of Gerald G. Burke, with which he was charged on or about April 26, 1970. His denial of any involvement in the murder was maintained despite a beating administered by the defendants James Williams and Norman Thompson, while Mr. Staples was handcuffed to a chair, during the course of the interrogation conducted at the Dunnville police station, in the middle of the night immediately following his arrest.
(35) At one point during his pre-trial incarceration, at the instance of one or some combination of the investigating officers, or at the instance of other unknown members of the Hamilton Police, Gary Staples was removed from the general population in the Barton Street Jail and segregated in solitary confinement, for no apparent or lawful purpose. He was told by the prison guards that he would be permitted to re-join the general population if he would sign a confession in respect of the murder of Gerald G. Burke. He did not do so and was held in solitary confinement for 67 days as a consequence.
The Trials and Incarceration
(36) Gary Staples was held without bail from April, 1970 until the preliminary inquiry on a charge of non-capital murder in August and September, 1970, and thereafter, following his committal to stand trial, was held without bail until his trial in what was then the Supreme Court of Ontario before a judge and jury, which began in January, 1971.
(37) At the preliminary inquiry, Ken Shellard refused to corroborate Mary Conklins evidence, to the effect that Gary Staples had confessed to the murder of Gerald G. Burke in Shellard's and Conklin's presence. On the contrary, Shellard denied that any such confession had taken place in his presence.
(38) Subsequently, and with the assistance of the investigating officers and other unknown members of the Hamilton Police, Mary Conklin changed her story, and testified that Ken Shellard had been asleep when Gary Staples arrived at her house in the evening of December 5, and that she and Gary Staples had gone to the kitchen and were alone when he allegedly confessed to the murder.
(39) Conklin's evidence changed in a number of other material regards at various points throughout the proceedings.
(40) The trial commenced on January 13, 1971. Gary Staples was convicted ten days later, on January 23, 1971.
(41) Immediately upon being convicted, Gary Staples was sentenced to spend the remainder of his natural life in prison, and thereafter was transferred to the Kingston Penitentiary to serve this sentence.
(42) Gary Staples was being held in Kingston Penitentiary when a small handful of prisoners rioted and took control of the prison for four days in April, 1971. During this time a number of prisoners were brutally tortured and mutilated by the rioters, and one prisoner was clubbed to death. Gary Staples and the other prisoners who refused to take part in the riot witnessed these acts, and lived in fear of imminent death for four days. Mr. Staples was almost shot when authorities re-took control of the penitentiary, and although he had not participated in the riot, was subjected to beatings by prison guards, who took reprisals against all of the prisoners after the riot.
(43) Gary Staples appealed his conviction to what was then the called the Court of Appeal of the Supreme Court of Ontario. In a unanimous decision handed down on October 21, 1971, the Honourable Messrs. Justice Schroeder and Arnup, and the Chief Justice of Ontario at the time, the Honourable Mr. Justice Gale, admitted fresh evidence on appeal, set aside the conviction and ordered that there be a new trial.
(44) The fresh evidence consisted of affidavits from the independent witnesses who verified Gary Staples' alibi, and in particular who verified his whereabouts in Dunnville throughout the entire evening of December 5, 1969.
(45) In addition, an independent witness gave evidence that Mary Conklin was not at her home on the evening of Friday, December 5, 1969, (and hence could not have been present for Gary Staples supposed confession). Further, the same independent witness gave evidence of witnessing a dispute between Gary Staples and Mary Conklin on the afternoon of Saturday, December 6, 1969, during which Mary Conklin was angry specifically because Gary Staples had not come to visit her on the evening of Friday, December 5, 1969.
(46) The fresh evidence admitted on appeal had not been available at the time of the first trial because of the witnesses' reluctance to become involved and because of the failure of the Hamilton Police to adequately investigate Mr. Staples' alibi, in accordance with the ordinary practice of competent police investigators.
(47) Following his successful appeal, Gary Staples was transferred back from the Kingston Penitentiary to the Barton Street Jail in Hamilton, and held until January 1972, when he was tried for a second time for the murder of Gerald G. Burke, before a court composed of a judge and a jury.
(48) On February 3, 1972, at the conclusion of the second trial, Gary Staples was acquitted and freed. He had been incarcerated for 649 days and 650 nights, that is, for approximately 22 months, for a crime he did not commit.
(49) The Crown Attorney appealed the acquittal, however without any explanation and for no apparent reason, the Crown abandoned its appeal in about November, 1972, before it had been heard. The reasons for the Crown's abandonment of its appeal only became known to Gary Staples following the events which occurred on October 30, 2000, as set out below.
"Freedom"
(50) Following Gary Staples acquittal, the Hamilton Police abandoned any further investigation of Gerald G. Burke's murder. The Hamilton Police publicly took and still take the position that Gary Staples committed the murder, notwithstanding the incontrovertible alibi evidence which establishes beyond any possible doubt that he was 50 kilometers from the scene at the time of the murder, notwithstanding his acquittal, and notwithstanding the contents of the interdepartmental memo which came to light on October 30, 2000, as set out below.
(51) Upon being released from prison following his acquittal, Gary Staples returned to his home in Dunnville, Ontario, where he lives to this day. He has been stigmatized and shunned in his own community as a murderer, and is the subject of a continuing whispering campaign. To this day, there are stores and businesses which will not serve him or members of his family, and members of the community who cross the street to avoid encountering them on the sidewalk. He and his wife are stared at, and are the subject of finger-pointing and hushed comments when they are at coffee shops and restaurants. Mr. Staples has been refused employment and has been fired from jobs he held, all because he has been falsely identified as a murderer.
Gerald G. Burke's Family
(52) The murder of Gerald G. Burke had a devastating impact on Mr. Burke's family, including his children, the plaintiffs Robert Denison and Darrin Burke. Aside from never knowing their father, their mother suffered a debilitating emotional breakdown in the wake of her husband's murder, and the extended family was fractured. The plaintiffs Darrin Burke and Robert Denison became estranged from their paternal grandparents and their extended family.
(53) The knowledge that their father's murderer(s) has or have never been brought to justice and that members of the Hamilton Police refuse to fulfil their statutory and common law obligations to investigate the unsolved murder because of their obstinately held and incorrect view that Gary Staples committed the murder, has and will continue to cause distress, anxiety and emotional harm to the plaintiffs Robert Denison and Darrin Burke.
FOI Request
(54) Gary Staples has been unsuccessfully attempting to clear his name since 1972, and among other things sought the assistance of and retained the Innocence Project at Osgoode Hall Law School in this regard. The Innocence Project is an intensive clinical programme in which students at the law school investigate cases where there is a claim of wrongful conviction.
(55) In November, 1997, a request was made by the Innocence Project on behalf of Gary Staples to the Hamilton Police, pursuant to the Municipal Freedom of Information and Privacy Act (the "FOI"), for the production of "all documents and exhibits relating to the investigation of Gary Staples leading to his conviction of murder ... and ultimate acquittal".
(56) On February 16, 1998, the Hamilton Police replied to the FOI request by indicating that the records "do not exist" and that "[t]his file is closed". There was a further indication that the records had been "purged" and the court exhibits "destroyed" in accordance with the "records retention by-law" of the Hamilton Police.
(57) Subsequently, the plaintiffs Robert Denison and Darrin Burke sought the assistance of and retained the Innocence Project to obtain information about their father's unsolved murder case. On October 30, 2000, in response to a request made by the Innocence Project on behalf of Darrin Burke and Robert Denison, the Hamilton Police produced its file for inspection by two law students from the Innocence Project who were working on the case, and by the plaintiff Robert Denison and the spouse of the plaintiff Darrin Burke.
(58) To the knowledge of the Hamilton Police, the Innocence Project continued to act for Gary Staples at that time.
(59) The inspection of the police file on October 30, 2000 made it clear that the response to the earlier FOI request made on behalf of Mr. Staples, as set out at paragraph 55 above, was incorrect, and that there were ample records in respect of the investigation of Gerald G. Burke's murder at the very time that the Hamilton Police had told Mr. Staples the records had been destroyed.
The Damned Salisburys
(60) In the Spring of 1972, while the Crown's appeal from Mr. Staples' acquittal was pending, Mr. Staples' defence counsel, Arthur Maloney, inquired of the Chief of Police as to whether or not the Hamilton Police had obtained any information from Wayne Salisbury and his wife during their investigation, and if so, whether it had been provided to the Crown Attorney. The Chief of Police in turn asked the investigating officers about this.
(61) On October 30, 2000, while students with the Innocence Project were reviewing the Hamilton Police file, they saw a memo authored by one of the investigating officers on or about May 7, 1972, addressed to officers higher in the chain of command of the Hamilton Police.
(62) The memo responded to the inquiry made by the Chief of Police, as to whether or not the information obtained from Wayne Salisbury and his wife had been disclosed to the Crown Attorney and Gary Staples defence counsel.
(63) The memo is entitled "The Damned Salisburys". In it, the investigating officers attempt to explain why the highly material evidence provided by Wayne Salisbury and his wife had not been disclosed to the Crown Attorney or Mr. Staples defence counsel. The investigating officers admit in the memo that they had "concluded at the time that [the Salisbury's] testimony was immaterial and irrelevant and would so confuse a jury that they would acquit just because of the confusion" [emphasis added]. The author of the memo further admitted that this conclusion was based on the inconsistency between the Salisburys' information and the information provided by James Johnstone who was called as a witness by the Crown. The investigating officers wondered how the information about the Salisbury's had come to the attention of defence counsel, and added that they were reluctant to record their response to the inquiry on paper.
(64) That is, the investigating officers deliberately suppressed exculpatory evidence because they themselves had determined that it was sufficiently inconsistent with the police theory of the case that it would have lead to an acquittal. They were surprised that Mr. Staples defence counsel had come across the information they had sought to suppress.
(65) In November, 1972, the Crown Attorney abandoned its appeal without offering any explanation. Neither Mr. Staples nor his defence counsel were told that the Hamilton Police had in fact obtained and suppressed highly material evidence from them.
(66) Further, on October 30, 2000, the law students from the Innocence Project saw a number of documents containing exculpatory information of which the police were aware before and during the prosecution of Gary Staples in 1970, 1971 and 1972 which was not disclosed to Gary Staples defence counsel at the time, and handwritten notes and entries indicating that the investigating officers or other unknown members of the Hamilton Police had assisted Mary Conklin in tailoring her evidence to take into account evidence which emerged during the preliminary inquiry and during the course of the trial, and as a result of the police investigation, which was inconsistent with and contradictory of her various recountings of Gary Staples' supposed confession.
(67) The law students from the Innocence Project were not allowed to make photocopies of the documents they inspected on October 30, 2000.
Events after October 30, 2000
(68) The law students from the Innocence Project could not finish their review of the Hamilton Police file on October 30, 2000 and at the end of the day agreed with the defendant Peter Bracci, being a sworn member of the Hamilton Police responsible for arranging and supervising their access to the file, that they would return another day to finish reviewing the file.
(69) In a subsequent exchange of correspondence between the Innocence Project and the Chief of the Hamilton Police, the defendant Kenneth D. Robertson, the Hamilton Police confirmed that the law students from the Innocence Project could re-attend to complete their review of the file.
(70) Subsequently, however, when law students from the Innocence Project corresponded and telephoned the defendants Peter Bracci, Bruce Elwood and Kenneth D. Robertson to make arrangements to complete their review of the file, they were advised that the Hamilton Police had reconsidered the matter and had decided that it would not afford them access to the file. The Hamilton Police acknowledged that the file is inactive, but said that it was "officially" open, which is contrary to the advice provided when an FOI request was made on behalf of Gary Staples, in response to which the Hamilton Police said the file was closed.
(71) Notwithstanding their advice that the file was now officially re-opened, and hence not available for further inspection, the Hamilton Police expressly declined to re-open the investigation in fact, or assign an investigator to work on the case. No investigative steps have been taken since the file was "re-opened".
Causes of Action
(72) Some, or all, or some combination of the investigating officers, and other members of the Hamilton Police whose identity is not known to the plaintiffs but is know to the defendants, instituted and continued in the prosecution of a charge of non-capital murder against Gary Staples, in the absence of reasonable and probable grounds for so doing. In instituting and continuing in the prosecution of this charge, these various members of the Hamilton Police acted with malice. The particulars of the malicious prosecution of Mr. Staples, known to the plaintiffs at this time include the following:
(a) Members of the Hamilton Police failed to weigh and assess the merits of Mary Conklins accusations against Mr. Staples, properly, or at all, and failed to conduct any further investigation after taking her statement, before laying charges against Mr. Staples, knowing that Mary Conklin was a highly unreliable witness with a motive to fabricate evidence, when they knew that the prosecution would gain momentum of its own once instituted and that it would become more difficult and less likely that police and civilian witnesses would admit to any error once charges had been laid.
(b) Members of the Hamilton Police ignored, suppressed and failed to act on evidence that Mr. Staples was innocent.
(c) Members of the Hamilton Police failed to investigate Mr. Staples alibi, once advised of it.
(d) Members of the Hamilton Police were aware that Mary Conklins evidence, being the only evidence that linked Mr. Staples to the murder of Gerald G. Burke was patently unreliable, in that it was procured in exchange for favourable treatment in respect of crimes with which she was involved, and in that it was undermined by other information available to the police.
(e) Members of the Hamilton Police assisted Mary Conklin in tailoring her evidence as its frailties became evident to them.
(f) Members of the Hamilton Police committed an assault and battery on Gary Staples as set out herein, to extract a confession from him to buttress hopeless case.
(g) Members of the Hamilton Police conspired to have Gary Staples unlawfully held in solitary confinement, for the purpose of extracting his confession to a crime he had not committed.
(h) Members of the Hamilton Police suppressed exculpatory evidence because they knew it would lead to an acquittal.
(73) The investigating officers and other members of the Hamilton Police Service involved in the investigation of Gerald G. Burkes murder, whose identity is not known to the plaintiffs, owed a duty of care to all of the plaintiffs, aside from Susan Marie Staples, and breached that duty of care and were negligent in their investigation, arrest and detention of Mr. Staples and in their prosecution and continued prosecution of him. Further, the defendants Kenneth D. Robertson, Peter Bracci and Bruce Elwood owed a duty of care to all of the plaintiffs and breached that duty of care and were negligent and in breach of their statutory and common law obligations to investigate crime, in refusing to re-open the murder investigation in any meaningful way when it was or ought to have been obvious to them that Gary Staples had been wrongfully prosecuted and convicted for the murder of Gerald G. Burke and that the murderer(s) have never been brought to justice.
(74) The particulars of the negligence known to the plaintiffs at this time include the following:
(a) The plaintiffs repeat and rely on the particulars in respect of the malicious prosecution, set out above.
Members of the Hamilton Police Service, including the defendants Bracci, Elwood and Robertson and others whose identity is not known to the plaintiffs, reviewed the file in their possession in the days and weeks immediately following October 30, 2000, or in the alternative ought to have done so, and concluded or ought reasonably to have concluded, that the murder of Gerald G. Burke had not been properly investigated in 1970, and yet failed to re-open the investigation for the express and admitted purpose of avoiding potential civil liability to Gary Staples in light of the deficiencies from the original investigation which would come to light if the case was re-opened.
(75) Members of management of the Hamilton Police were negligent in their managing, training, supervision and control of the investigating officers, and the defendants Elwood and Bracci, in failing to adequately train, supervise and oversee these police officers in the investigation and prosecution of the murder of Gerald G. Burke.
(76) By all of their actions, as described above, the defendants, acting individually and in concert, misused their discretion and improperly investigated, arrested, detained and prosecuted Gary Staples without reasonable cause, and refused to re-open the investigation, for the improper purpose of covering up the initial errors made in having arrested, detained and prosecuted Mr. Staples. By arresting, detaining and prosecuting Mr. Staples in the absence of reasonable grounds and subjective belief that he was guilty, and in refusing to re-open the investigation, the defendants acted maliciously and abused their public offices with intent to harm the plaintiffs and with knowledge that their conduct would harm the plaintiffs. Their misfeasance in public office resulted in the plaintiffs suffering damages, as set out below.
(77) The defendants James Williams and Norman Thompson committed an assault and battery on Gary Staples when interrogating him immediately after his arrest, as set out above.
(78) Some combination of the investigating officers and other members of the Hamilton Police, whose identity is not known to the plaintiffs but is known to the defendants together with prison guards whose identity is not known to the plaintiffs but is known to the defendants, planned, agreed and conspired amongst themselves to have Gary Staples held in solitary confinement while awaiting trial, when there was no lawful reason for having him detained in this fashion. The predominant purpose for so doing, or in the alternative, the foreseeable consequence of so doing, was to cause Gary Staples to suffer anguish and psychological harm and trauma. This was done to extract his confession to a crime he had not committed.
Damages
(79) As a result of the conduct of the defendants, and those for whom they are vicariously liable, as set out herein, the plaintiff Gary Staples suffered damages associated with his arrest, detention, prosecution, conviction and re-trial for an offence which he did not commit, including wrongful incarceration and emotional trauma, loss of enjoyment of life, anguish, embarrassment, humiliation, stigma, pain and suffering and grave personal distress and physical harm. His income-earning ability was permanently impaired.
(80) The plaintiff Susan Marie Staples claims damages pursuant to the Family Law Act for the loss of Gary Staples care, guidance and companionship, caused by and associated with the damages sustained by him as set out herein.
(81) All of the plaintiffs have incurred out-of-pocket expenses and special damages, the particulars of which will be provided at or before the trial of this action.
(82) The defendants actions constitute a wanton and outrageous disregard of the plaintiffs rights, for which the plaintiffs are entitled to an award of aggravated, punitive and exemplary damages.
The plaintiffs propose that this action be tried at: Hamilton.
SACK GOLDBLATT MITCHELL
Barristers and Solicitors
20 Dundas Street West
Suite 1130
Toronto, Ontario
M5G 2G8
Sean Dewart
LSUC #26708B
(416) 979-6970 (Tel.)
(416) 591-7333 (Fax)
Solicitors for the Plaintiffs
TO: HAMILTON POLICE SERVICES BOARD
155 King William Street
Box 1060, LCD1
Hamilton, Ontario
L8N 4C
TO: KENNETH D. ROBERTSON
c/o 155 King William Street
Box 1060, LCD1
Hamilton, Ontario
L8N 4C
TO: PETER BRACCI
c/o 155 King William Street
Box 1060, LCD1
Hamilton, Ontario
L8N 4C
TO: BRUCE ELWOOD
c/o 155 King William Street
Box 1060, LCD1
Hamilton, Ontario
L8N 4C
TO: JAMES WILLIAMS
c/o 155 King William Street
Box 1060, LCD1
Hamilton, Ontario
L8N 4C
TO: JAMES CAMPBELL
c/o 155 King William Street
Box 1060, LCD1
Hamilton, Ontario
L8N 4C
TO: NORMAN THOMPSON
c/o 155 King William Street
Box 1060, LCD1
Hamilton, Ontario
L8N 4C
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