2

4. In answer to paragraph 2 of the Statement of Claim, the federal Witness Protection

Program (the Program) was established under the provisions of the federal Witness
Protection Program Act, SC 1996, c 15 (WPPA). The Program provides protection to
witnesses whose physical safety is in jeopardy because they are cooperating with the
authorities. A witness may not be admitted to the Program unless an agreement has
been entered into by or on behalf of the witness with the Commissioner setting out the
obligations of both parties. The Attorney General pleads and relies on the provisions of
the WPPA, including ss. 6, 8, 9 and 10.

5. The Royal Canadian Mounted Police (RCMP) administers the Program. The Program
is administered independently from investigative intersects of the criminal investigative
operations of the RCMP.

The Parties

6. In answer to paragraphs 1 and 4, the Attorney General says that particular members of
the Plaintiff group are protected persons under the WPPA (hereafter referred to as
protectee(s)) within the definition of the Program and the Act, and are not currently
enrolled in the Program, but may have received assistance to maintain the integrity of
the Program.

7. In answer to paragraph 4 of the Claim, the Attorney General denies that Paul Derry
(Mr. Derry) was a source, informant or agent collaborating with the RCMP at all
material times in this Claim. The Attorney General admits that Mr. Derry has been a
source and informant with the RCMP at certain times. The terms “source,” “informant,”
and “agent” have specific designated meanings associated with the Program.

8. In answer to paragraph 5 of the Claim, the Attorney General states that an action against
the Federal Crown (Crown) in Federal Court should be brought against Her Majesty
the Queen in right of Canada. The Attorney General pleads and relies on the Federal
Courts Act, R.S.C. 1985, c. F-7, including s. 48(1).
 3

9. In further answer to paragraph 5 of the Claim, the Attorney General states that members
of the RCMP are deemed to be servants of the Crown by virtue of s. 36 of the Crown
Liability and Proceedings Act, R.S.C. 1985, c. C-50. The Crown is liable in tort for
damages for which, if it were a private person of full age and capacity, it would be
liable in respect of a tort committed by a servant of the Crown acting within the scope
of their duties. The Attorney General pleads and relies upon the provisions of the
Crown Liability and Proceedings Act, including ss. 3 and 10.

History of involvement with the RCMP

10. In answer to paragraphs 6 to 53 of the Claim, and the Claim as a whole, the Attorney
General states that the RCMP encountered Mr. Derry in approximately 1988 when he
reported to a particular Municipal Police Force in Canada as a condition of his parole.
Mr. Derry was involved in organized criminal gang activity, and was a close associate
with a principal drug dealer in the area. Mr. Derry subsequently started providing
information to the RCMP.

11. In answer to paragraphs 7 and 8 of the Claim, the Attorney General denies that Mr.
Derry acted as a source for the RCMP before 1988. The Attorney General agrees that
the Plaintiffs, other than Mr. Derry, were never informants, agents or sources for the
RCMP.

12. In answer to paragraphs 7-9 and 116 of the Claim, the Attorney General denies that the
RCMP enticed or induced Mr. Derry to become an informant or offered to make him
an official agent with a high salary. The Attorney General says that agents are not paid
salaries, but awarded specific payment for specific assistance. Further details of the
context in which Mr. Derry provided information to the RCMP is outlined below.

13. In further answer to paragraphs 7-9 and 116 of the Claim, the Attorney General says
that records indicate that throughout the early years of Mr. Derry’s assistance with the
RCMP, his motivation for providing information appeared to be financial. He was
engaged in credit card frauds and thefts as a source of income and he has been convicted
of criminal fraud.
 4

14. In answer to paragraphs 10 and 11 of the Claim, the Attorney General says that Mr.
Derry provided information to the RCMP related to the drug trade with recorded reports
ranging from March 3, 1988 to March 21, 1997, approximately a nine-year period. Mr.
Derry provided information related to:

i. Associates of the Hells Angels during approximately a two-month period in 1996;

ii. Individuals responsible for robbery of an elderly couple in Nova Scotia;
iii. A planned robbery in New Brunswick;
iv. The whereabouts of two individuals wanted on Canada Wide Warrants;
v. The whereabouts of two individuals who escaped from prison;
vi. The death of Douglas Edgett (inaccurate information); and
vii. The identity of an adult dancer in Nova Scotia.

Information provided by Mr. Derry was gained through his own initiative, and activities
involving his criminal lifestyle and association with criminal actors. At times, this
information formed the grounds to obtain search warrants.

15. In answer to paragraphs 9, 108, 116 and 118 of the Claim, the Attorney General says
that on or around May 8, 1990 and May 15, 1991, Mr. Derry signed Letters of
Acknowledgment to act as an agent of the RCMP for two specific investigations.
Formal work Mr. Derry engaged in was pursuant to the terms outlined in the Letters of
Acknowledgment, including the limits of protection offered, the awards payable, and
the duration of Mr. Derry’s role as agent. The Letters of Acknowledgment stated any
previous verbal or written agreements were no longer valid.

16. In answer to paragraphs 13 and 132(g) - (h) of the Claim, the Attorney General says
Mr. Derry was determined by the RCMP to be unreliable due to substance abuse and
relationship instability in or around November 1991. The RCMP labeled him as
“treacherous,” meaning the RCMP would not be in a position to enter into a formal
arrangement with Mr. Derry as an “informant” or “agent” without further assessment
of his reliability. Mr. Derry’s status as treacherous was removed on or around April
29, 2002.
 5

17. In answer to paragraph 109 of the Claim, the Attorney General says that on or around
July 12, 1992, while Mr. Derry was serving time in jail, Mr. Derry’s wife at the time
advised the RCMP of threats made against Mr. Derry for being a source. On September
3, 1992, an RCMP officer attended Fredericton City Police cells to evaluate the
seriousness of the threats and ensure that Mr. Derry understood he was no longer an agent
of the RCMP. The importance of confidentiality was discussed, and Mr. Derry was
advised that any future relationship with the RCMP would only occur within a
professional and formal arrangement.

18. In answer to paragraph 9 of the Claim, the Attorney General says Mr. Derry was an
agent for a short period in 1990 and 1991 where agreed upon awards were paid to him
for a predetermined period of time. He was released from prison on or around January
24, 1996, after serving four years of a seven-year sentence for fraud related offences.
Following his release, Mr. Derry was recorded as motivated to become an agent. He
was slated to infiltrate an Outlaw Motorcycle Gang (OMG) as an agent, but the
agreement fell through after Mr. Derry faced parole violations.

Murder of Sean Simmons

19. In answer to paragraphs 6, 8, 13-15, 20, 23, 26-31, 113, 116, 122-123, 130 and 132 (d),
(f) of the Claim, the Attorney General says that on or around September 7, 2000, Mr.
Derry contacted the RCMP and advised he had information about a planned murder of
an undisclosed individual. The RCMP was not actively engaged with Mr. Derry
between 1997 and 2000, and there was no Letter of Acknowledgment in place during
that time.

20. The RCMP met Mr. Derry who provided general information surrounding the drug
trade involving the Hells Angels, information about a firearm possibly connected with
a previous murder, and mentioned an associate that talked about a “hit.” Subsequent
attempts by the RCMP to clarify the information about the murder from Mr. Derry were
unsuccessful. Mr. Derry did not provide details regarding how, when or to whom the
“hit” would take place.
 6

21. Sean Simmons died after being shot on October 3, 2000. Mr. Derry did not provide the
RCMP with details pertaining to the murder of Sean Simmons in advance of the
murder. To the extent that Mr. Derry may have known critical information in advance,
Mr. Derry did not share such information with the RCMP. The Attorney General states
that Mr. Derry’s status as “treacherous” did not prevent him from providing critical
information to the RCMP, which information may have prompted the RCMP to take
steps in relation to the event. These allegations have been investigated on two
occasions by the public complaint process.

22. Mr. Derry and his then wife Tina Potts (Ms. Potts) were charged in connection with the
murder of Sean Simmons. Mr. Derry negotiated immunity with a municipal police
force in exchange for assisting with the investigation. Mr. Derry entered into a Letter
of Acknowledgment and an Immunity Agreement with the municipal police force. The
Immunity Agreement required Mr. Derry to testify in all court proceedings related to
the death of Mr. Simmons. Mr. Derry received independent legal advice prior to signing
these agreements.

23. In answer to paragraphs 76-78 of the Claim, the Attorney General denies that the
RCMP had a duty to inform Christine Derry of Mr. Derry’s involvement in the murder
of Mr. Simmons or his agreement with the municipal police force.

24. In answer to paragraph 19 of the Claim, the Attorney General admits that Mr. Derry
suffered a heart attack and was admitted to hospital for approximately one week. The
Defendant has no knowledge of a doctor’s note indicating the cause was stress from
testifying. The Attorney General says that any health issues associated with Mr. Derry’s
testimony related to his work with the municipal police force, not the RCMP.

25. In answer to paragraphs 18, 20, 23, 26, 27 and 30 of the Claim, the Attorney General
agrees that Mr. Derry testified at the trials of Dean Kelsi, Steven Gareau, Wayne James,
and Neil Smith. Steven Gareau was released from custody in 2018. The other three
men are incarcerated as of 2020.
 7

26. In answer to paragraphs 28, 29 and 117 of the Claim, the Attorney General says that
on or around January 23, 2020, Mr. Derry advised the Program that there was a “fresh
hit” on him originating from a criminal biker gang in Ottawa. Mr. Derry did not provide
the source of this information to Program personnel. The Program does not pay for
information and did not pay Mr. Derry for the information he provided in or around
January 2020. The Attorney General has no knowledge of any additional facts pleaded
therein related to this event.

The Plaintiffs time in the Witness Protection Program

27. In answer to paragraphs 15 and 110 of the Claim, the Attorney General states that as a
consequence of Mr. Derry testifying to avoid prosecution for his involvement in the
murder of Sean Simmons, the municipal police force reached out to the Witness
Protection Program for assistance. Mr. Derry and Ms. Potts voluntarily entered the
Program on or around May 22, 2001. Mr. Derry entered into a Protection Agreement
in or around May 22, 2001, which outlined the terms of his participation in the Program
(the 2001 Protection Agreement). Mr. Derry executed the 2001 Protection Agreement
with the assistance of independent legal counsel.

28. In further answer to paragraph 15 of the Claim, the Attorney General says that when
Mr. Derry entered the Program in 2001, his two children were in the custody of
Children’s Aid. His children joined Mr. Derry on or around November 29, 2002, after
he regained custody.

29. In answer to paragraphs 79 to 80 of the Claim, the Attorney General says that Mr. Derry
wanted Christine Derry (Christine) to live with him because of the level of care
Christine was receiving while residing with her mother. Due to a custody order,
Christine had to reside with her mother. The RCMP met with Christine and discussed
her thoughts on residing with Mr. Derry. Christine provided a letter outlining her desire
to live with her father. Mr. Derry obtained custody of Christine on or around October
10, 2001 and shortly thereafter she began living with Mr. Derry.
 8

30. In answer to paragraph 80, 83, 93-94, and 98 of the Claim, the Attorney General says
that Mr. Derry was responsible to meet any legal obligations related to the custody and
maintenance of his children. Neither the Program nor the RCMP were legally
responsible to assist Mr. Derry with custody issues involving his children. The
Program did assist Mr. Derry with certain issues in relation to custody of his children
to ensure compliance with the WPPA that protected information is not publicly
disclosed, and to ensure the safety of protectees and family members. The Attorney
General pleads and relies on the provisions of the Witness Protection Program Act,
including s. 8.

31. In answer to paragraph 21 of the Claim, the Attorney General states that Mr. Derry was
non-voluntarily terminated from the Program in accordance with section 9 of the WPPA
for 13 breaches of the 2001 Protection Agreement and provisions of the Witness
Protection Program Act. Mr. Derry was served with notice of termination on or around
October 22, 2009. Mr. Derry challenged the termination and provided written
submissions to the Program on or around November 9, 2009. The Program responded
to Mr. Derry’s representations in or around February 2010. Mr. Derry’s participation
was terminated on or around May 28, 2010.

32. In answer to paragraphs 22 to 23 of the Claim, the Attorney General states that in or
around February 2011, Ms. Potts and three of the children moved to another province.
Mr. Derry, his current partner, Kristyna Derry (Kristyna), and the children subsequently
moved to the same area as Ms. Potts. These moves occurred without the assistance of
the Program as the Program assessed Ms. Potts as a security risk.

33. In further answer to paragraphs 22 to 23 of the Claim, the Attorney General states that
on or around August 17, 2013, the Program offered Mr. Derry, Ms. Potts, Kristyna and
all associated children emergency protection because of new threats to personal safety
towards Mr. Derry. The threats arose because of television interviews conducted by
Mr. Derry and Ms. Potts. Local individuals saw the interview, recognized Ms. Potts
and a new threat was made against Ms. Potts and Mr. Derry.
 9

34. In further answer to paragraphs 22 to 23 and 110 of the Claim, the Attorney General
states that on or around January 10, 2014, Mr. Derry voluntarily entered an Alternate
Aid and Release Agreement. By way of this agreement, the Program offered further
assistance in response to the threat, but the Plaintiffs did not re-enter the Program as
protectees. Mr. Derry could not be admitted back into the Program due to prior
breaches of Program rules including disclosure of protected information.

35. In further answer to paragraphs 22 to 23, 57-67 and 110 of the Claim, the Attorney
General says that Kristyna signed a Protective (or Protected) Agreement on or around
January 29, 2014 for the limited purpose of obtaining secure identification documents
(2014 Protective Agreement). The 2014 Protective Agreement specified that once
Kristyna obtained new identification she would be terminated from the Program.
Kristyna was not provided funding under the 2014 Protective Agreement. Kristyna was
included as a dependent under Mr. Derry’s Alternate Aid and Release Agreement,
which included funding terms.

36. In further answer to paragraphs 22 to 23 of the Claim, the Attorney General says that
due to the threat, a threat assessment was completed. In response, Mr. Derry, Kristyna
and children were relocated to another city in Canada on or around April 27, 2014. The
Program therefore moved the Plaintiffs twice: from Province A to Province B in 2001
and Province X to Province Y in 2014.

37. In answer to paragraph 24 of the Claim, the Attorney General says that it is standard
procedure for the Program to select a relocation site based on the threat assessment
completed on the protectee. Due to Mr. Derry’s television and radio interviews, and
disclosure of his involvement in the Program to people across the country, most
locations posed some level of risk for Mr. Derry. Mr. Derry never worked for the
RCMP as an informant in the province of his relocation prior to 2014 and there was no
information to indicate persons from Mr. Derry’s past were located in the newly
relocated province.

38. In answer to paragraphs 85 to 86 and 110 of the Claim, the Attorney General says that
the RCMP offered Christine an Alternate Aid and Release Agreement that she signed
 10

on March 19, 2014 and a Protection Agreement that she signed on March 15, 2014.
Christine received independent legal advice prior to entering the Agreements. For extra
protection, Christine was subsequently located a short distance from Mr. Derry due to
safety concerns related to the threat against Mr. Derry. Christine and her children were
relocated on or around June 19, 2014. The Program moved the plaintiffs twice: from
Province A to Province B in 2001 and Province X to Province Y in 2014.

39. In answer to paragraphs 38 and 86, the Attorney General states that on or around
September 2, 2014, Christine moved to a townhouse. On or around December 16, 2014,
in a different building of the townhouse complex, a domestic dispute involving alcohol
resulted in a female stabbing her partner once in the chest. The man died of his injuries
and the female was arrested in her home. The police reports do not include Christine as
a witness. The Attorney General otherwise has no knowledge of the allegations in
paragraphs 38 and 86.

Allegations Related to the Administration of the Program

40. In answer to paragraphs 25, 84 and 129 of the Claim, the Attorney General says that
the Program acted reasonably and diligently to secure the documentation required for
new identification. The RCMP secured the documentation in a timely manner in the
circumstances.

i. Mr. Derry received new identification documents in shortly after entering the
program in 2001;

ii. Mr. Derry obtained custody of his two children in or around November 2002.
New health cards were obtain on or around April 1, 2004. Name changes for
the children were completed in or around June and July 2004. Birth certificates
were obtained for the children in late 2004; and

iii. Christine moved with Mr. Derry on or around October 10, 2001 and began
school in 2002. The Program required consent from Christine’s mother to
change her name. Christine’s mother could not be located and there were
warrants out for her arrest. On or around June 7, 2002, Christine’s mother
 11

refused to consent to a name change. Consequently, the Program had to go

through additional processes. The Program was provided authorization to
change Christine’s name securely on or around October 30, 2003. Christine was
provided a new health card on or around November 4, 2003, a social insurance
number on December 24, 2003 and a birth certificate on January 9, 2004.

The Program encountered delays in obtaining documentation due to the above

mentioned custody issues and Mr. Derry not having original birth certificates for the
children. All documents are dependent on obtaining birth certificates from the birth
province of the children, which can delay the process. There were administrative delays
attributed to provincial processes.

41. In answer to paragraph 87 of the Claim, the Attorney General says that Indian Status
for Christine’s two children was not part of the Alternative Aid and Release Agreement
or Protective Agreement signed by Christine in 2014. The children received new birth
certificates, health cards, and social insurance numbers. In 2019 when Mr. Derry and
Christine requested Indian Status documents, the Program contacted Indigenous
Services Canada and the application process began to securely obtain Indian Status in
their new identities. As of February 25, 2020, the applications forms were given to Mr.
Derry. It is the responsibility of the Plaintiffs to complete and submit the necessary
documents.

42. In answer to paragraph 16 of the Claim, the Attorney General states that discussions
related to Mr. Derry’s personal debts and finances were necessary for admission into
the Program. All outstanding personal debt of a potential protectee must be cleared in
advance before an individual can enter the Program. The Program paid out the
Plaintiffs’ debts on numerous occasions.

43. In answer to paragraphs 17 of the Claim, the Attorney General says Mr. Derry was
involved in a life of crime prior to his work with the RCMP and entering the Program.
The terms on which Mr. Derry entered the Program are outlined in the 2001 Protective
Agreement, which Mr. Derry signed with independent legal advice. Mr. Derry was
 12

provided opportunities for funding for vocational training which Mr. Derry chose not
to pursue.

44. In answer to paragraphs 17 and 48 of the Claim, the Attorney General states the
Program continues to evolve and change over time. Since 2001, the Program has added
the option of career assessments and counselling. The Program now performs
psychosocial assessments on all persons evaluated for admission into the Program. The
Program has developed partnerships for safe admission into addiction treatment centers
where required.

45. In answer to paragraph 49 of the Claim, the Attorney General says that in 2014,
psychosocial assessments were only conducted on persons evaluated for permanent
admittance to the Program. The assessments were not conducted on persons entering a
Protection Agreement for secure identification only, as in the case of the 2014
Protection Agreement with Kristyna. The assessments were not conducted on persons
being offered an Alternate Aid Agreement, which is a form of protection outside the
Program, as occurred with Mr. Derry and Christine in 2014.

46. In answer to paragraphs 16, 32, 39 and 82 of the Claim, the Attorney General says that
in 2001, Mr. Derry and Christine were offered psychological and addictions counseling
upon entering the Program. Mr. Derry and Ms. Potts attended a minimum of thirteen
counselling sessions at the expense of the Program in 2001. Christine attended
counseling on three occasions in and around April 2002. There is no record of
wrongdoing on the part of the counselor. On or around July 9, 2002, Mr. Derry reported
to the Program that Christine was doing well.

47. In answer to paragraphs 33 and 36 of the Claim, the Attorney General says that Mr.
Derry was not a protectee in the Program in March 2019. Mr. Derry reached out to the
Program in and around 2019 regarding his mental health. On or around December 11,
2019, Mr. Derry, Kristyna and Christine entered into a Legacy Agreement that provided
funding to attend counselling. The three parties obtained independent legal advice prior
to entering into the Legacy Agreement.
 13

48. In answer to paragraph 36 of the Claim, the Attorney General says that the RCMP did
not advise the Plaintiffs they were prohibited from disclosing information during
counselling. The Plaintiffs are not required to vet the information they share at
counselling with the Program. Information shared in the context of counselling is
confidential. Mr. Derry has experience with these counselling protocols from
counselling he received in 2001 while in the Program.

49. In answer to paragraphs 40, 72-73, 96 and 101 of the Claim, the Attorney General says
that neither the 2011 Protective Agreement signed by Mr. Derry nor the 2014 Protective
Agreement signed by Kristyna contained promises related to family visits. There is no
documented discussions or requests for family visits by the Plaintiffs in relation to the
2001 or 2014 Protective Agreements. Persons in the Program can contact family
provided arrangements are secure. Further, arrangements were made to allow Mr.
Derry to securely contact family members.

50. In answer to paragraphs 40, 41 and 72 of the Claim, the Attorney General says that
protectees and former protectees can have direct contact with their families if its secure.
The Program does not maintain contact with family. There was no agreement to
monitor or report on the Plaintiffs’ family. Accordingly, the Program is not aware of a
family’s personal circumstances. In 2001, the Program advised Mr. Derry how he could
make secure contact with his family and made arrangements for such contact. Mr.
Derry contacted and visited his mother on more than one occasion after entering the
Program in 2001. At times families reach out directly to the RCMP with family updates.
Mr. Derry’s family did not reach out to the Program or the RCMP with information of
his mother’s passing.

51. In answer to paragraphs 42-43, 64, 97-98 and 125 of the Claim, the Attorney General
says that within the program, the education of a child is the responsibility of the parents.
Protectees are relocated to a location that is deemed safe and therefore the children can
enter the regular school system if the parents choose. The Program will assist in
obtaining school records and transcripts, which the Program did in this case. The
 14

Program provides advice on how to approach schools, including navigating non-

disclosure of sensitive information.

52. In further answer to paragraphs 42-43 and 97 of the Claim, the Attorney General says
that Mr. Derry and Ms. Potts’ two children entered the Program on November 29, 2002
at ages 4 and 6. Both children were placed in school shortly after relocation. Christine
started school shortly after arriving in the relocation province on or around October 10,
2001. Records indicate that as of August 8, 2019 JD Derry was in second year at a
university in Canada.

53. In answer to paragraphs 98 and 102 to 104 of the Claim, the Attorney General says that
it is a personal decision of parents whether to homeschool their children. The Program
does not require homeschooling. While in the Program, the Plaintiffs were in a safe
location and could have chosen to place their children in the regular school system.

54. In answer to paragraph 90 of the Claim, the Attorney General says there is no record
of a scholarship for Christine at a university.

55. In answer to paragraph 44 of the Claim, the Attorney General says that privacy is very
important and obtaining certain documents requires the correct name and authorization.

56. In answer to paragraph 52 of the Claim, the Attorney General says that protectees can
obtain insurance if done securely. Mr. Derry’s involvement in organized crime and in
the murder of Mr. Simmons, may have prevented an insurer from taking out a policy
on Mr. Derry or Kristyna. The Attorney General has no further knowledge of this
allegation.

57. In answer to paragraph 53 of the Claim, the Attorney General states:

a) The landlord at the location where Mr. Derry resided in and around 2002 was
not an RCMP member. The landlord approached Regina Police Services
(Regina Police) to report a fraud related to rental cheques received from Mr.
Derry. The landlord gathered documents, photos and newspaper articles left by
Mr. Derry when he abandoned the residence and provided them to Regina
 15

Police. The Program contacted Regina Police to address any security breaches
that may have occurred.

b) Mr. Derry suffered a heart attack on or around June 16, 2003 and could not
attend court to testify. The RCMP discussed Mr. Derry’s medical condition
with the judge and an adjournment was granted. Defence counsel was advised
of the reason for the adjournment. No identification or relocation information
was disclosed.

c) On suspicion that Mr. Derry was improperly claiming social assistance benefits
while receiving a stipend from the Program, the RCMP reached out to the
assistant supervisor of Social Services. The RCMP did not disclose anything
about the Program. The assistant supervisor took over carriage of Mr. Derry’s
file and marked the file restricted. The RCMP ensured there was nothing on the
file that could compromise Mr. Derry’s security.

d) Denies the allegations in paragraph 53(d).

e) Mr. Derry’s son asked to revert to the identity used in the province of a previous
location. When processing the birth certificate application forms, Program
coordinators inadvertently used the parents’ last name from that province,
rather than the current names used in the current province of location. The
application was forwarded to the provincial Vital Statistics office on or around
October 10, 2017. On or around January 4, 2018, when the error was
discovered, a new application was submitted with proper surnames, and the
provincial vital statistics database was corrected. Potential compromise or
threat was minimal since the information was limited to the birth certificate
provided to Mr. Derry’s son and the vital statistics database of a particular
province for a short time.

Kristyna’s Allegations

58. In answer to paragraph 57 to 59, 62-63 and 66-67 of the Claim, the Attorney General
says that Kristyna had independent legal advice when she entered the 2014 Protective
 16

Agreement. The 2014 Protective Agreement clearly outlined the terms and obligations
of both parties. Kristyna was advised she could contact her family and ex-husband’s
family further to paragraph 3.h(i)(5) of the 2014 Protective Agreement. She was
advised of certain areas she could not attend for safety as outlined and agreed to in
paragraph 8 of the 2014 Protective Agreement.

59. In answer to paragraphs 60 and 69 of the Claim, the Attorney General says that the
2014 Protective Agreement was limited to providing assistance to obtain a secure name
change and new identification; limited assistance was provided in relation to
employment and education. The Program advised Kristyna that she could apply for
employment with the police or the military.

60. In answer to paragraph 61 of the Claim, the Attorney General denies that these threats
were made.

61. In answer to paragraph 70 of the Claim, the Attorney General denies that the Program
impacts a protectee’s ability to secure a bank account. Protectees are provided with
identification, a permanent address, and a social insurance number.

Causes of Action

No breach of the Witness Protection Program Act

62. In answer to paragraphs 53 and 106 to 107 of the Claim, the Attorney General denies
that the RCMP breached the confidentiality provisions of the Witness Protection
Program Act. Further, the 2001 and 2014 Protective Agreements advised that the
RCMP or any person authorized by the RMCP can communicate information related
to the protectees change in identify or location for a purpose that is necessary to
implement the Protective Agreement and administer the Witness Protection Program
Act.
 17

No Breach of Contract

63. In answer to paragraphs 67, 108 to 118 of the Claim, the Attorney General denies any
breach of contract, and further denies breaching any duty of care the RCMP may have
owed to the Plaintiffs. The Attorney General says the Letters of Acknowledgment, the
Protection Agreements and the Alternate Aid and Release Agreements represent the
entirety of the agreements between the parties. The Attorney General denies that there
are any implied terms of these agreements and states that the terms are as written and
agreed to in the protection agreements, or as deemed by an act of Parliament. The
Attorney General denies the RCMP failed to abide by the terms of these agreements.
The Attorney General denies any representations were made that are not contained in
the protection agreements, and/or says that any discussions that took place were in the
context of negotiations and were not representations and are not binding on the
Commissioner.

64. In further answer to paragraphs 67, 108 to 118 of the Claim, the Attorney General
denies that the Letters of Acknowledgment, the Protection Agreements or the Alternate
Aid and Release Agreements were unconscionable or presented to the Plaintiffs under
duress. The Attorney General states that the Plaintiffs were fully informed of the terms
of the Letters of Acknowledgment, the Protection Agreements and the Alternate Aid
and Release Agreement, voluntarily entered into all agreements and received
independent legal advice prior to entering all agreements.

Fiduciary Duty

65. In answer to paragraphs 83, 119 to 130 of the Claim and the Claim as a whole, the
Attorney General denies that the circumstances were such as to give rise to any
fiduciary duty on the part of the Crown, or any servant, agent or employee of the
Crown. The Attorney General denies that the Plaintiffs abrogated or entrusted any
power of decision to the RCMP.

66. Any agreements between the RCMP and the Plaintiffs did not supersede the duties of
the RCMP to enforce all acts of Parliament and maintain law and order. Any protection
 18

agreement required the Plaintiffs to comply with the terms therein and with the Witness
Protection Program Act or run the risk of terminating their involvement with the
Program and face possible prosecution. The Attorney General pleads and relies on the
provisions of the Royal Canadian Mounted Police Act, RSC 1985, c R-10, including s.
36.2, the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281,
including s. 14, and the Witness Protection Program Act, including ss. 8, 9(1), and 21.

67. In further answer to paragraphs 83, 119 to 130 of this Claim, the Attorney General
denies that the RCMP gave an undertaking of responsibility to act in the best interests
of the Plaintiffs to the exclusion of all other interests. Any duty owed by the RCMP to
the Plaintiffs had to be balanced against the general public law duty to enforce all acts
of Parliament and maintain law and order. The Plaintiffs’ participation in the Program
included reciprocal obligations in both statute and contract, which if breached could
lead to termination from the Program.

68. In the alternative, if the Crown or a servant, agent or employee of the Crown did owe
any fiduciary duty to the Plaintiffs, which is expressly denied, the Attorney General
denies that any such obligation and/or duty was breached. The Attorney General states
that the RCMP did not engage in dishonest or disloyal conduct or place its interests
ahead of the interest of the Plaintiffs.

69. In answer to paragraphs 40, 58-68 and 81-83 of the Claim and the Claim as a whole,
the Attorney General denies that the RCMP enticed, induced, threatened, forced, or in
any way acted in bad faith to get Kristyna, Christine or any other Plaintiff to join the
Program. The Attorney General states that Mr. Derry willingly entered an immunity
agreement with a municipal police force in order to avoid prosecution for his
involvement in the murder of Mr. Simmons. As a result of this agreement, Mr. Derry
thereafter voluntarily entered the Program.

Negligence

70. In answer to paragraphs 6, 12, 16-17, 31, 49, 57-59, 62, 64-66, 68, 77-78, 81-82, 89,
96, 105, 123, 131-135 of the Claim and the Claim as a whole, the Attorney General
 19

denies that any RCMP member or any Crown servant owed a duty of care to the Plaintiffs.
In the alternative, if the Crown or a servant, agent or employee of the Crown did owe
a duty of care to the Plaintiffs, which is expressly denied, the Attorney General states
that the duty is more narrow than pleaded by the Plaintiffs, and is limited by the terms
of the protection agreements, which includes taking reasonable steps to protect the
Plaintiffs and to provide sufficient information about the nature of the Program.

71. In further answer to paragraphs 6, 12, 16-17, 31, 49, 57-59, 62, 64-66, 68, 77-78, 81-
82, 89, 96, 105, 123, 131-135 of the Claim and the Claim as a whole, the Attorney
General states that if a duty of care is owed, which is expressly denied, the Attorney
General denies that any RCMP member or any Crown servant, agent or employee was
negligent and says that RCMP members carried out their duties as reasonable officers
would in similar circumstances, based on the information available at the time. The
Attorney General denies that any RCMP member or any Crown servant, agent or
employee is in any way responsible for the damages and losses alleged by the Plaintiffs.
Further, or in the alternative, the Attorney General denies the injuries, losses, and damages
as alleged.

Other Causes of Action

72. In answer to paragraph 136 of the Claim, the Attorney General denies that the acts of
the RCMP or Crown violated the rights of the Plaintiffs under sections 7, 15 or any
other section of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (UK),
1982, c 11 (the Charter). The Attorney General denies the Plaintiffs were treated
unfairly or that any Crown servant acted in bad faith. The Attorney General further
denies that damages are an appropriate remedy for any Charter breaches, if proven, in
these circumstances.

73. In answer to paragraph 137 of the Claim, the Attorney General denies that the RCMP
or Crown engaged in wrongful acts in their capacity as public officers and/or
maliciously exercised their power when dealing with the Plaintiffs.

74. In answer to paragraphs 46-48, 65, 81, 132(j)-(k) and 134 of the Claim, the Attorney
General says that there is no cause of action against the RCMP or the Crown for failure
 20

to legislate and no duty to create or amend legislation in a specific manner. There is no

duty on the RCMP to implement changes suggested by the Plaintiffs or policies utilized
in the United States.

Defences

75. In answer to the Claim as a whole, the Attorney General states that any alleged loss or
damage suffered by the Plaintiffs, which is not admitted, was not caused by any breach
on the part of servants of the Crown, but rather was caused, or contributed to, by the
Plaintiffs’ own conduct, particulars of which are not fully known by the Attorney
General, but include:

a. failing to acquire any educational or occupational skills for any legitimate and
marketable occupation;

b. failing to cooperate with members of the RCMP;

c. failing to take any steps, or in the alternative any reasonable steps, to establish
themselves in a self-supporting manner and obtain any gainful employment or
any other legitimate source of income;

d. failing to seek and follow medical and legal advice;

e. engaging in acts which compromised and/or jeopardized the Plaintiffs’ own

security, the security of other protectees, and the security of Program personnel;

f. failing to follow reasonable requests and/or instructions of coordinators of the

Program provided to maintain the Plaintiffs’ safety and security;

g. failing to abide by the terms and conditions of the protection agreements;

h. failing to comply with his or her obligations pursuant to the protection

agreements; and
i. failing to take any or adequate measures to maintain confidentiality over their
identities, location, and circumstances.

76. In the alternative, and in answer to the Claim as a whole, the Attorney General states
that the Claim as against the Defendant is statute barred. The Defendant pleads and
 21

relies upon the provisions of the Federal Courts Act, RSC, 1985, c F-7, including s. 39
as well as applicable provincial limitation legislation.

Damages

77. In answer to paragraph 138 of the Claim, the Attorney General denies that the
circumstances of the Plaintiffs’ Claim, if proved, are such as to give rise to aggravated,
exemplary and/or punitive damages.

78. In answer to paragraph 139 of the Claim, the Attorney General denies that the
circumstances of the Plaintiffs’ Claim, if proved, are such as to give rise to special
damages.

79. In the alternative, if the Plaintiffs suffered injuries, loss or damages, which is denied,
such injuries, loss or damages:
a. are exaggerated;
b. are not caused or contributed to by any acts of the Crown Defendants;
c. were caused or contributed to by the Plaintiffs’ failure to comply with the terms
of the protection agreements;
d. were preventable or able to be reduced by the Plaintiffs;
e. resulted from other causes; and/or
f. are remote and unforeseeable.

80. In further answer to the Claim, the Attorney General states that at all times all RCMP
members involved acted in good faith in the bona fide belief that they were executing
their public duty as peace officers.
 22

81. The Defendants therefore ask that the Plaintiffs’ Claim be dismissed with costs.

January 15, 2021

____________________________
ATTORNEY GENERAL OF CANADA
Department of Justice Canada
Prairie Region – Saskatoon Office
410 – 22nd Street East, Suite 410
Saskatoon, SK S7K 5T6
Per: Sean Sass
Tel: (306) 202-8855
Fax: 306-975-4030

Counsel for the Defendant, Canada