COURT OF APPEAL FOR ONTARIO
FINLAYSON, CARTHY and CRONK JJ.A.
B E T W E E N :
DANIEL EDWARD WEBB
Morris Manning, Q.C. and Ernest J. Guiste, for the Appellant
Appellant
- and -
WATERLOO REGIONAL POLICE SERVICES BOARD, CHIEF R. LARRY GRAVILL, P.C. GEORGE GILLINGHAM, P.C. P. FOY and P.C. DICKSON
James H. Bennett, for the Respondents
Respondents
Heard: February 13, 2002
On appeal from the judgment of Justice Nick Borkovich dated June 30, 2000 (reasons reported at [2000] O.J. No. 3551, [2000] O.T.C. 657).
1This is an appeal by Daniel Edward Webb from the judgment of Justice N. Borkovich dismissing his action against the respondents for declaratory relief and compensatory and punitive damages for alleged negligence, malicious prosecution, intentional infliction of mental distress and breach of the appellant’s constitutional rights under ss. 7, 9 and 15(1) of the Canadian Charter of Rights and Freedoms.
I. THE FACTS
2In June 1993, the police conducted an undercover operation in a public park in Kitchener, Ontario based on complaints from members of the public and a local alderman that public sex was taking place in the park. On June 22, 1993, the appellant was arrested in the park by the respondent P.C. George Gillingham and charged with sexual assault. The next day an article appeared in a local newspaper, the Cambridge Reporter, entitled “Cop Assaulted in Park Crackdown”. The article stated that the appellant had been charged with sexual assault “after an undercover police officer was assaulted while working in a Kitchener park to clean up homosexual activity”. Two days later a further article was published in another local newspaper under the headline, “Police target sex in public: Wooded park known as a pick-up place for gay men”. The appellant was not identified in that article. The appellant subsequently resigned his position as a Rector of a local Anglican Church parish.
3On December 23, 1993, the charge against the appellant was withdrawn when the respondent Gillingham, the arresting officer, did not attend in court to give evidence. It later emerged that the officer had not been notified of the trial date and that he was unaware that the trial was set to proceed.
4In June 1994, the appellant commenced an action against the respondents claiming damages for alleged negligence, malicious prosecution and intentional infliction of mental distress. In a subsequent amended pleading, he also alleged that the respondents had breached his constitutional rights under ss. 7, 9 and 15(1) of the Charter. As relevant to the issues raised on this appeal, the Amended Statement of Claim alleges:
- The Plaintiff pleads that the Defendants have violated his constitutional rights under the Canadian Charter of Rights and Freedoms, particulars of which include the following:
(2) violated [sic] the Plaintiff’s right to life, liberty and security of the person under section 7 of the Charter by arresting and charging him with sexual assault under section 271 of the Criminal Code and divulging this information to the Cambridge Reporter when they knew or ought to have known that he had not committed any criminal offence;
(4) the defendants violated the Plaintiff’s rights under s. 15(1) of the Charter to equal protection and equal benefit of the law without discrimination by deliberately setting out to entrap and publicly humiliate an identifiable group of which the Plaintiff is a part, namely, homosexual men in their undercover operation. The respondents denied the allegations contained in the appellant’s pleading, including the claim of Charter breaches.
5On June 30, 2000, following a nine-day trial without a jury, Justice Borkovich dismissed the appellant’s action. In doing so, he made the following findings:
Breach of Charter Rights
After having heard the evidence and the submissions of counsel, I make the following findings of fact.
(1) On June 22, 1993 the plaintiff sexually assaulted P.C. Gillingham in Homer Watson Park.
(2) The plaintiff was not entrapped.
(3) Gillingham had reasonable and probable grounds to arrest the plaintiff on the charge of sexual assault.
(4) From the time of his arrest until his release from police custody [the appellant] was treated professionally by the police officers.
(5) P.C. Roy had reasonable and probable grounds to swear out the Information against the plaintiff.
(6) I accept the evidence of the plaintiff’s lawyer that he did not serve a Notice of a Charter issue and I accept his opinion that there was no defence of entrapment available to the plaintiff.
(7) I accept the opinion of the Crown Attorney, John Robb, as to the merits of the case and that Gillingham was not subpoenaed to attend court. I applaud the exercise of his discretion to withdraw the charges.
(8) I find the Police Services Board’s policy with respect to identifying persons charged with criminal offences to be reasonable and in accord with the public’s right to know.
(9) I find that the publication of the plaintiff’s name in the newspaper was as a result of a routine request by a newspaper journalist in the ordinary course of business.
(10) I find that the Police Services Board took no overt steps to cause embarrassment to the plaintiff.
(11) I find the evidence of the plaintiff as to damages is unsatisfactory and that he has failed to establish his damages on a balance of probabilities.
(12) I find that the plaintiff knew that he was engaged in a very risky situation when he went to the park to engage in sex. It was a risk he willingly undertook for some five years on a regular basis. On June 22, 1993, he was caught. He is the author of his own misfortune.
II. THE ISSUES
6In his Notice of Appeal and factum the appellant raised numerous grounds of appeal concerning the trial judge’s decision. In oral argument before this court, however, counsel for the appellant essentially argued that the trial judge erred by:
(1) declining to receive opinion evidence from two witnesses proffered by the appellant;
(2) failing to consider the appellant’s argument of discriminatory conduct by the respondents, contrary to s. 15(1) of the Charter; and
(3) finding that there were reasonable and probable grounds to support the charge and arrest of the appellant and by failing to find that there was evidence of malice sufficient to establish malicious prosecution.
For the reasons that follow, I conclude that these arguments must fail. Accordingly, I would dismiss the appeal.
III. ANALYSIS
(1) The Proffered Opinion Evidence
7The appellant sought to qualify two witnesses as experts at trial to give opinion evidence. A voir dire was held in connection with each witness to determine their qualifications as experts and the admissibility of their proposed evidence.
8The first witness, an associate professor of sociology in the United States and a former police officer in Ontario, proposed to give opinion evidence on: a) whether the appellant was afforded due process as guaranteed by the Charter, b) whether the release of information by the police to the press violates a person’s Charter rights, c) whether the police were negligent or had acted maliciously, d) whether the police intended to prosecute the appellant after he was arrested and the charge was laid, e) whether the police action in this case was unconstitutional, and f) concerning police practices, standards and options in responding to community social policy issues, and the consequences thereof under the Charter. The witness has no degree in law or journalism and has not specifically studied constitutional law or the Charter. The trial judge ruled that the witness should not be qualified as an expert because his proposed evidence related to questions of law which the trial judge was obliged to decide and about which the witness was not qualified to give opinion evidence.
9The second witness proposed by the appellant to give opinion evidence is an admitted gay rights advocate and author who holds a doctorate degree in the sociology of education. His proposed evidence concerned the sociology of sexuality in relation to: a) whether the Criminal Code is discriminatory against homosexuals, b) consent to sexual activity, and c) the definition of a “public place” and whether a park is a public place. The respondents challenged his qualifications and his independence as an expert. At the conclusion of the voir dire, the trial judge ruled with respect to this witness:
The courts have repeatedly said that matters of social policy are not the basis upon which legal concepts of the admissibility of evidence and what is relevant are to be considered. I do not believe that what this man has testified to as social practices and social codes do not assist the Court [sic] in coming to a conclusion on a matter of law with respect to the evidence given by the plaintiff in this action so far.
The plaintiff has testified. I take it that Sergeant Gillingham will testify. And I have to decide whether, on the basis of their testimony, there was consent or a lack of consent. There is nothing that social practices or social contexts, et cetera, can assist me as to whether there was any consent. [sic]
10Counsel on behalf of the appellant before this court argued that where breaches of ss. 7 and 15(1) of the Charter by the police are alleged, as in this case, it is incumbent on the claimant to lead evidence of the offensive conduct relied upon as evidencing the Charter breaches and of the standards of conduct of police officers under ss. 7 and 15(1) of the Charter which allegedly have not been met. The appellant submits that, as constitutional values cannot be determined in a vacuum, the proposed opinion evidence was necessary here, and hence was admissible, to assess whether the actions of the respondents were in contravention of the Charter. I do not agree, for several reasons.
11Expert opinion evidence is admissible only when the trier of fact is unable to form his or her own conclusions on the issues in the case without help. The criteria for the admissibility of expert opinion evidence enunciated in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 require that the proposed evidence be relevant and necessary to assist the trier of fact. Further, the absence of any exclusionary rule and the availability of a properly qualified expert must be established. Those criteria are not met in this case. In particular, the necessity requirement, and the requirement to establish the expert qualifications of the proposed witness, are not satisfied in respect of either proposed witness.
12In this case, the issues upon which it was proposed that the two witnesses would give opinion evidence fundamentally related to matters of law which are within the expertise of the trial judge and which he was required to determine. As noted by Charron J.A. of this court in R. v. K. (A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (Ont. C.A.), leave to appeal to the Supreme Court of Canada quashed for want of jurisdiction May 11, 2000, S.C.C. Bulletin, 2000, p. 888, in connection with the necessity requirement: “If the trier of fact can form his or her own conclusions on the facts without help, the opinion of an expert, even though it may be relevant, is unnecessary and inadmissible” (at p. 676). It was within the discretion of the trial judge to reject such evidence and his decision is entitled to deference from this court. (See R. v. K. (A.), at p. 677, per Charron J.A.). In addition, the fact that one or both of the proposed witnesses may have given similar opinion evidence in other cases is not determinative of the admissibility of their evidence in this case. As observed by Charron J.A. in R. v. K. (A.), at p. 672: “The admissibility of expert opinion evidence is not a question of precedent”. Moreover, it was not clearly established before the trial judge that the proposed witnesses had the requisite expertise to give the suggested opinion evidence. Accordingly, the criteria for the admissibility of opinion evidence, established in Mohan, are not met here.
13Finally, although the appellant contends that the suggested opinion evidence was necessary because the police in this case allegedly targeted the homosexual community for surveillance and discriminatory police action in contravention of s. 15(1) of the Charter, the findings of the trial judge do not support that conclusion. The trial judge found that (at para. 16):
(1) the Board and its officers were acting in a proper fashion throughout with respect to the procedure adopted to go to the park and conduct surveillance as to unlawful sexual acts in the park; and
(2) the defendants acted reasonably and properly on the basis of complaints made by citizens concerning sexual activity in the park.
14Those findings support the respondents’ submission that the issue at trial did not involve societal issues of gay rights and homosexuality or the targeting of homosexuals for police action. The police undercover operation concerned the broader issue of public sex in the park. As relevant to the appellant, the issue at trial concerned his individual acts in the park on the day in question. As described by the respondents in their written submissions before this court:
The actual undercover operation carried out by the police was carried out for a legitimate and bona fide purpose, namely, to respond to complaints … and to prevent public sex in the public park. Whether the public sex consisted of homosexual acts or heterosexual acts is irrelevant and it is the public aspect of the sexual activity alone which makes it illegal ….
(2) The Argument of Discriminatory Conduct, Contrary to Section 15(1) of the Charter
15The thrust of the appellant’s argument before this court regarding s. 15(1) of the Charter is that the trial judge failed to consider the appellant’s claim that discriminatory conduct by the police violated his rights under s. 15(1) of the Charter. I do not agree.
16In support of his argument concerning s. 15(1) of the Charter, the appellant relies on the following comment by the trial judge:
The legislature has decided to leave legal matters to the Court and leave to other bodies such as tribunals the issues that deal with discrimination and matters of social policy, et cetera, because those agencies or boards or tribunals are in a better position to deal with those matters because they are not constricted by the rules that apply to legal proceedings. This is not a case of discrimination. If it was Mr. Guiste, if you are putting to me that this is a case of discrimination, I have no jurisdiction to deal with it. That jurisdiction has been given to the Ontario Human Rights Tribunal …. [Emphasis added].
17That observation was made by the trial judge as part of his ruling during the voir dire regarding the admissibility of the opinion evidence sought to be led by the appellant. Nevertheless, in my view, it is clear from the transcript of the proceedings before the trial judge and from the trial judge’s reasons that he was alive to, and considered, the appellant’s s. 15(1) Charter claim.
18First, the transcript of the trial proceedings reveals that shortly after making the impugned statement, the trial judge stated during an exchange with counsel regarding the appellant’s s. 15(1) claim:
[I] will make a declaration when I have heard evidence that establishes on a balance of probabilities that there was a breach by the police of the rights of this individual. The basis of that evidence, which will be admitted in this court, is evidence that is legally admissible. You, by virtue of the evidence that you have called in this case, can establish on the basis of evidence that is admissible in a court of law whether or not under the circumstances the action of the police was in contravention of section 15. The challenged statement by the trial judge regarding discrimination must be understood in the context of his subsequent statement, set out above, which clearly indicates that the trial judge was prepared, and intended, to consider the appellant’s claim under s. 15(1) of the Charter based on all of the admissible evidence before him.
19Second, the reasons of the trial judge demonstrate that he did consider, and reject, the appellant’s claim concerning s. 15(1) of the Charter. The trial judge specifically referred in his reasons to the appellant’s claim that his rights under ss. 7, 9 and 15(1) of the Charter had been violated. The trial judge also made multiple findings of fact, as described earlier in these reasons, expressly in relation to the appellant’s claim of breaches of his Charter rights.
20As I have noted, the appellant’s Amended Statement of Claim alleges in connection with s. 15(1) of the Charter that the respondents violated his Charter rights: “by deliberately setting out to entrap and publicly humiliate an identifiable group of which the plaintiff is a part, namely, homosexual men, in their undercover operation”. That allegation, as framed, is centred on the assertion that the police intentionally sought, in their undercover operation in the park, to entrap and humiliate homosexual men, including the appellant. The trial judge found that the appellant was not entrapped, that no defence of entrapment was available to the appellant in relation to the criminal charge, that from the time of his arrest until his release from police custody the appellant was treated professionally by the police officers, and that the Waterloo Regional Police Services Board “took no overt steps to cause embarrassment to the plaintiff”.
21The necessary elements of entrapment were identified by the Supreme Court of Canada in R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903. In that case, Lamer J. (as he then was) stated for the court (at p. 976):
The state must be given substantial room to develop techniques which assist it in its fight against crime in society. It is only when the police and their agents engage in a conduct [sic] which offends basic values of the community that the doctrine of entrapment can apply….
22The appellant admitted under cross-examination that he had been having oral sex in the park approximately thirty times per year during the five years prior to the date of his arrest, that he knew that such conduct in the park was inappropriate and illegal, that he intended on the day in question to have sex with the respondent Gillingham, that he invited the respondent Gillingham into the bush for that purpose, and that he initiated physical contact with that respondent by grabbing the respondent Gillingham in the crotch. The trial judge concluded that the appellant knew that he was engaged in “a very risky situation when he went to the park to engage in sex….On June 22, 1993, he was caught. He is the author of his own misfortune”.
23In addition, as part of his own case at trial, the appellant tendered as an exhibit an article from a local newspaper dated June 25, 1993 in which the respondent Gillingham is quoted as saying:
[T]he officers are not acting as decoys to entrap men looking for homosexual relations, but patrolling the park in response to complaints by neighbours near the park … and people who use the park for recreation.
24During his testimony at trial, the respondent Gillingham confirmed that the police activities on the day in question were to observe what was going on in the park and: “To get into the bushes and walk around and see if we could see anyone committing sexual offences, indecent acts, and we were to arrest them”. In addition, the respondent P.C. Dickson, one of the officers who participated in the undercover operation in the park, testified as to his understanding of the operation. He stated: “There had been complaints received by the police department in regards to sexual activity in the park and we were going to walk through the park and see if we observed any of these activities”.
25As I mentioned, the trial judge addressed in his reasons the appellant’s allegation that the respondents’ undercover operation in the park was improper. He held (at para. 16):
[T]he Board and its officers were acting in a proper fashion throughout with respect to the procedure adopted to go to the park and conduct surveillance as to unlawful sexual acts in the park. I find the defendants acted reasonably and properly on the basis of complaints made by citizens concerning sexual activity in the park….
26Accordingly, in my view, while it may have been preferable for the trial judge to further elaborate in his reasons upon his consideration of the appellant’s claim under s. 15(1) of the Charter, it cannot be concluded that he failed to consider the claim. To the contrary, the reasons of the trial judge addressed the central allegations of deliberate and discriminatory entrapment and humiliating conduct by the respondents, as pleaded by the appellant. The trial judge’s findings in that regard are amply supported by the evidence.
(3) Malicious Prosecution
27The appellant also argues that the trial judge erred by finding that there were reasonable and probable grounds to support the charge and arrest of the appellant and by failing to find that there was evidence of malice sufficient to establish malicious prosecution. That argument, in my view, has no merit.
28The necessary elements of the tort of malicious prosecution are well-established:
(a) the proceedings must have been initiated by the defendant;
(b) the proceedings must have terminated in favour of the plaintiff;
(c) the absence of reasonable and probable cause; and
(d) malice, or a primary purpose other than that of carrying the law into effect. (Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, at p. 193, per Lamer J. (as he then was); Proulx v. Quebec, 2001 SCC 66, [2001] S.C.J. No. 65 (S.C.C.)). In this case, the requirement of malice or improper purpose, which must be established to support a claim in an action in damages based on malicious prosecution, is not made out.
29The requisite element of malice or improper purpose amounts to a requirement that the state actor “perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice” (Nelles, at p. 194, per Lamer J.). As stated by Iacobucci and Binnie JJ. in Proulx, at para. 36, malice “requires evidence that reveals a wilful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system”. In this case, it is the conduct of the police, rather than that of the trial prosecutor, which is impugned. The question, therefore, is whether it can be said that the actions of the police in conducting the undercover operation, in arresting and charging the respondent or in dealing with the media evidence malice or improper purpose. In my view, the answer is no.
30The trial judge found that the police undercover operation was carried out to respond to complaints regarding, and to prevent, public sex in the park. The trial judge concluded that that purpose was legitimate and bona fide. I agree.
31The appellant admitted during cross-examination that he intended to engage in sexual activity in the park with the respondent Gillingham, that the first physical contact between the appellant and the officer was initiated by the appellant, that the officer did not invite the appellant to have sex with him or to accompany him into a more secluded area for the purpose of having sex, and that the officer did not orally consent to have sex. Those admissions support the respondents’ submission that the appellant was arrested without warrant for the commission of a criminal offence. Further, in the face of those admissions by the appellant, it cannot be concluded that the appellant’s arrest and the charge against him were motivated by malice or improper purpose.
32In addition, the evidence established that the publication of the appellant’s name in the local newspaper occurred as a result of routine media inquiries concerning police arrests and through no improper act of the arresting officer or of the other respondents. The release of the name and the charge by the police to the media was in accordance with standard police media relations policy and practice which the trial judge found to be reasonable and “in accord with the public’s right to know”. The evidence at trial does not support the argument that publication of the appellant’s name, or of identifying details regarding the charge against him, was occasioned or motivated by police malice.
33Accordingly, I conclude that there is a complete lack of evidence of specific malice or improper purpose by the police in this case. That conclusion alone is fatal to a claim of malicious prosecution. Accordingly, it is unnecessary to address whether the other required elements of malicious prosecution are satisfied in this case.
IV. DISPOSITION
34For these reasons, I would dismiss the appeal. The respondents are entitled to their costs of the appeal on a partial indemnity basis, fixed in the amount of $10,092.26, inclusive of Goods and Services Tax and disbursements.
“E.A. Cronk J.A.”
“I agree: G.D. Finlayson J.A.”
“I agree: J.J. Carthy J.A.”
Released: June 26, 2002
