Court of Appeal for Ontario
Judges: Strathy C.J.O., Juriansz and Huscroft JJ.A.
Between
Richard Tremblay and Johanne Mongrain
Plaintiffs (Respondents)
and
Ottawa Police Services Board, Jeff Aylen, Melburn White, Shawn Graham, Christian Gardner, Martin Rukavina, Daniel Kunsken, Kirk Gidley, Jeff Simpson, Kelly Ryan, Stephan Gilbert, Jeff Kilcollins, Gordon Ward, Woody Aspilaire and Nelson Rowan
Defendants (Appellants)
Counsel:
Jeremy J. Wright, for the appellants
Lawrence Greenspon, for the respondents
Heard: December 5, 2017
On appeal from: The judgment of Justice Catherine D. Aitken of the Superior Court of Justice, dated December 31, 2016 with reasons reported at 2016 ONSC 4185.
Introduction
1This appeal arises from an action commenced by the respondents, Richard Tremblay and his spouse Johanne Mongrain, against the Ottawa Police Services Board ("OPS"), Sergeant Jeff Aylen and other named police officers, for damages for the arrest of Tremblay and the execution of a public safety firearms warrant at the respondents' home on October 17, 2006. The action alleged negligent investigation, false arrest and false imprisonment and breach of their rights under ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms.
2Tremblay and Mongrain were involved in a dispute with their neighbours, who alleged a drainage pipe Tremblay and Mongrain had installed was causing flooding in their homes. The neighbours complained to the city, which issued an order to remove the pipe and ultimately commenced proceedings against Tremblay and Mongrain for failing to comply with the order. Six neighbours brought a civil suit against Tremblay and Mongrain. Some of the neighbours claimed that Tremblay subsequently engaged in intimidating behaviour toward them and their families.
3The OPS arrested Tremblay for intimidation and mischief. Having confirmed that Tremblay had a licence and registration to possess three firearms, the OPS also obtained a public safety firearms warrant. With assistance from their Tactical Unit, police entered and searched the respondents' home, seizing the firearms and ammunition.
4At his criminal trial, Tremblay was acquitted of intimidation and of criminal harassment (a charge that was added by the Crown). He was found guilty of mischief. His mischief conviction was upheld on appeal to the Superior Court of Justice but overturned in this court.
5Tremblay and Mongrain then brought this action. The trial judge found Sgt. Aylen, who was the investigating officer, and the OPS, as Sgt. Aylen's employer, liable to Tremblay for negligent investigation, false arrest, unlawful detention and unlawful imprisonment and breaches of Tremblay's rights under ss. 7, 8, and 9 of the Charter. She found Sgt. Aylen and the OPS liable for breach of Mongrain's rights under s. 8 of the Charter, relating to the search of the home. She awarded Tremblay and Mongrain over $50,000 in damages.
6Sgt. Aylen and the OPS appeal. I would allow the appeal.
7While, for the most part, the trial judge correctly identified the governing principles, she did not apply them to the facts and evidence in the case, sometimes expressly declining to do so. Proceeding without evidence, expert or otherwise, regarding the standards, policies and procedures that applied to police investigations in 2006, the trial judge imposed a standard of care that was inconsistent with the established jurisprudence. With the benefit of hindsight, she engaged in second-guessing the reasonable exercises of discretion by the police, substituting her own view of the evidence and inferences for that of the OPS. In doing so, she identified a number of "red flags" that, in her view, called into question the reliability of the information Sgt. Aylen obtained during his investigation and that required further investigation. She also identified a number of other courses of action Sgt. Aylen, in her view, should have pursued instead of arresting Tremblay and obtaining the public safety firearms warrant.
8These errors permeated the trial judge's analysis of whether there were reasonable and probable grounds to arrest Tremblay.
9The trial judge also erred in finding the arrest was unlawful under s. 495(2) of the Criminal Code, R.S.C. 1985, c. C-46 because it was not in the public interest, the public safety firearms warrant was invalid, and the manner in which the warrant was executed was unreasonable.
A. FACTS
(1) Sgt. Aylen's Investigation
10On October 13, 2006 Sgt. Aylen, then a detective with the OPS, was assigned to follow-up on an investigative action report of Officer White following White's interview with Deanna Perry, one of the neighbours, on October 12, 2006. Officer White's investigative action report was not entered into evidence because the respondents objected. Sgt. Aylen testified the report indicated that a neighbour dispute had started with civil litigation and a by-law proceeding surrounding a drainage pipe. It outlined Perry's complaints about Tremblay's conduct towards herself and her husband, Pierre Huppé, and their family.
11Sgt. Aylen contacted Perry and asked her to prepare and email him written statements from Huppé and herself. Perry told Sgt. Aylen that she had prepared a timeline of incidents, so he asked her to send that as well. Sgt. Aylen received these and reviewed them on October 16, 2006.
(2) Information Available to Sgt. Aylen During His Investigation
(a) Statements and Incident Timeline from Perry and Huppé
12The timeline provided by Perry detailed encounters with Tremblay beginning in the fall of 2005 up until October 14, 2006. It described over 20 encounters in which Tremblay stared at and photographed Perry, Huppé and their children in their backyard and pool, laughed and cursed at them, gave them the finger, intimidated them with his pitbull, and interfered with their attempts to sell their property. A serious allegation, discussed in detail later, was that they heard the sound of gunshots coming from the Tremblay property on two occasions.
13In their statements, Perry and Huppé described the resulting impact on their family. They did not feel safe in their home or in their yard. Perry suffered from increased stress and anxiety and was afraid to stay alone in their home. She did not let her children play in the yard or in the neighbourhood unaccompanied and without constant supervision. Their children developed issues sleeping and the stress was impacting their married life.
(b) Statements from Morris and Lavigne
14In her statement, Perry indicated that their neighbours, Ron Morris and Georgette Lavigne, had witnessed some of the incidents involving encounters with Tremblay. On October 16, 2006 Sgt. Aylen attended at the neighbours' home and requested that they provide written statements. In identical statements, Morris and Lavigne recounted that they had witnessed Tremblay intimidating and harassing Perry and Huppé's family by staring at them through the gap in the cedar hedge and by taking photos of them in their backyard. They also corroborated Perry and Huppé's account that Tremblay had parked an old van next to their property line, put old tires on its roof and spray painted on its side in "big fluorescent letters" a message "that would prevent them from selling their property".
(c) Previous Occurrences
15In addition to Officer White's investigative action report about his October 12, 2006 interview with Perry, Sgt. Aylen located and reviewed five earlier occurrence reports of complaints that neighbours involved in the dispute had submitted to the OPS.
16Four of the reports involved complaints about Tremblay:
(i) A complaint by Huppé in December 2005 about an anonymous voicemail message he had received at work in November which he thought may have been from Tremblay.
(ii) A complaint by Perry on June 18, 2006 indicating that Tremblay and Mongrain were harassing Perry and Huppé in connection with a neighbour dispute that had resulted in civil litigation and the harassment was escalating as their court date approached. That day, Tremblay had taken pictures of her husband and children.
(iii) A further complaint by Perry on June 22, 2006 stating that Tremblay was staring her and her husband "down" while they cut the grass and following them as they moved about their property.
(iv) A complaint by Patrick Walsh, another neighbour, on June 25, 2006 indicating that the neighbours involved in the civil dispute had been subjected to "a gradually increasing level of harassment and abuse" from Tremblay and Mongrain.
17The fifth complaint was made by Tremblay about Huppé. On October 10, 2006 Tremblay called the OPS and reported that on October 9, 2006 while he was playing basketball with his children on the street, Huppé sped by them squealing his tires. Tremblay felt this action put his safety and that of his children in danger. He also mentioned that he and Huppé were not on good terms. On October 16, 2006 Officer Taillefer spoke with Tremblay and then with Huppé, and indicated to both men that no further action would be taken at the time.
18None of the officers who wrote these reports testified at trial. The reports, including the investigative actions taken by those officers, were admitted as exhibits at trial for the limited purpose of establishing what information was known or available to Sgt. Aylen when he conducted his investigation in October 2006.
19Sgt. Aylen testified that he reviewed all of these occurrence reports as part of his investigation, however, he specifically stated that he did not rely on the four reports about Tremblay as part of his grounds to arrest and charge him, or to obtain the public safety firearms warrant.
(d) Firearms Search
20Sgt. Aylen conducted a firearms search and found that Tremblay had a firearms licence and had three firearms registered to him at his residence.
(3) The Decision to Arrest Tremblay and Obtain a Public Safety Firearms Warrant
21Sgt. Aylen testified that by the afternoon of October 16, 2006, based on the information he had received, he believed that he had reasonable and probable grounds to arrest Tremblay for mischief for interfering with Perry and Huppé's enjoyment of their property, and for two counts of intimidation for engaging in behaviour for the purpose of compelling Perry and Huppé to abstain from doing something that they had a right to do, namely, enjoying the use of their backyard, front yard and swimming pool.
22Sgt. Aylen also decided that he would seek a public safety firearms warrant under s. 117.04 of the Criminal Code, which authorizes the search and seizure of firearms and other weapons from a person where there are reasonable grounds to believe "that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon".
(4) Tremblay's Arrest and the Execution of the Warrant
23On October 17, 2006 Sgt. Aylen obtained the public safety firearms warrant in respect of the Tremblay residence. The Tactical Unit assisted in executing the warrant. They arrived at the respondents' residence at approximately 2:00 p.m. They knocked on the front and back doors and telephoned into the house but received no answer. After approximately 15 minutes, they breached the front door and entered the house. After they confirmed that the house was clear and secure, Sgt. Aylen and his team searched the home. Three firearms, along with three pellet guns, a cross-bow, a machete, a folding knife and ammunition were located and seized.
24The respondents' children arrived at the residence during the search. They were given the choice of either waiting outside or in a police car until the search was complete. Once the search was done, the children were let into the first floor of the house. An officer contacted Mongrain by phone, advised her of the search and advised that Tremblay should return home where he would be arrested.
25Mongrain and Tremblay returned home and Tremblay was placed under arrest for mischief and intimidation by Officers Aspilaire and Ryan, acting on direction from Sgt. Aylen. He was cautioned, given his rights to counsel and searched.
26Tremblay was transported to the police station and placed in a cellblock. An officer arranged for Tremblay to speak with his counsel. He then spoke with Sgt. Aylen and declined to make a statement.
27Sgt. Aylen prepared an undertaking and reviewed the release conditions with Tremblay. The conditions included prohibitions from possessing firearms and from communicating with Perry, Huppé or their children. Tremblay was released from the police station after he was fingerprinted and photographed and after he signed the undertaking and a promise to appear.
28Mongrain testified that the Tremblay home was in disarray as a result of the search, with furniture overturned and contents strewn about the home.
(5) Disposition of the Criminal Charges
29The Crown added two counts of criminal harassment under s. 264(3) of the Criminal Code to the mischief and intimidation charges laid by the police.
30All charges proceeded to trial in the Ontario Court of Justice. The trial judge acquitted Tremblay of the intimidation and criminal harassment charges but found him guilty of mischief. Tremblay appealed his mischief conviction to the Superior Court of Justice, where it was upheld. On further appeal, this court entered a verdict of acquittal on the mischief charge: R. v. Tremblay, 2010 ONCA 469, 256 C.C.C. (3d) 389.
31The substance of the court decisions is relevant to my later analysis. The incident that was the basis of the mischief conviction is described in this court's decision, as follows:
On September 27, 2006, in an apparent display of pique, Mr. Tremblay placed his old rusted and beat-up van on the grass alongside the property line he shared with his neighbours. He threw three old tires on top of the van and left one on the hood, leaning against the front window. Needless to say, this was an eyesore, visible to anyone, and particularly to potential buyers coming to view the complainants' home. Then, on October 9 - shortly after Mr. Huppé and Ms. Perry's realtor posted a sign on their front lawn advertising an open house for the upcoming weekend - Mr. Tremblay spray painted, in fluorescent orange paint, the words, "I AM NOT RESPONSIBLE FOR YOUR BASEMENT FLOODS," on the side of the van facing his neighbour's property.
32The judge at the criminal trial was satisfied beyond a reasonable doubt this was a wilful action on Tremblay's part, done "with the intent to interfere with the complainant's lawful [use] or enjoyment of their property, in order to persuade them to withdraw their lawsuit against him", and so he convicted Tremblay of mischief. In allowing Tremblay's appeal of the mischief conviction, this court accepted the facts were sufficient to establish the offence but found the courts below had not given a broad enough meaning to the defence provided by s. 430(7) of the Criminal Code, for acts the purpose of which is communicating information.
33It is also important to note, in dismissing the intimidation and harassment charges, the trial judge accepted the allegations were sufficient to satisfy the charges. The trial judge dismissed these charges because he was not satisfied those allegations were proven beyond a reasonable doubt.
B. The Trial Judge's Reasons
(1) Negligent Investigation
34No expert evidence was tendered at trial. The trial judge acknowledged the general rule that expert evidence is required to establish the standard of care applicable to a police officer in a negligent investigation claim. However, because the case fell within the established exception for cases involving non-technical matters within the knowledge and experience of the trier of fact, she decided expert evidence was unnecessary.
35The trial judge concluded that Sgt. Aylen had conducted a negligent investigation. She emphasized that Sgt. Aylen was investigating a long-term dispute between neighbours in which a civil action was ongoing, and that there was no urgency to the investigation. She identified a number of red flags that, in her view, significantly reduced the reliability of the information gathered during Sgt. Aylen's investigation and that required further inquiry. She held that Sgt. Aylen's failure to follow-up and investigate further was therefore negligent. She also found that Sgt. Aylen had a number of options available to him to address Tremblay's conduct, but instead resorted to the most dramatic and traumatizing option available by arresting Tremblay and obtaining and executing a public safety firearms warrant.
(2) False Arrest, Unlawful Detention and Unlawful Imprisonment
36The trial judge accepted that Sgt. Aylen subjectively believed that he had reasonable and probable grounds to arrest Tremblay. The issue was whether such grounds existed objectively.
37The trial judge found that reasonable and probable grounds existed to arrest Tremblay for mischief, given that the Crown and judges at two levels of court had found there was sufficient evidence to support a finding of guilt for this offence. Nevertheless, she found Tremblay's arrest for mischief was unlawful because she was satisfied that the public interest could have been satisfied without arrest, and the public interest limitation in s. 495(2) of the Criminal Code therefore applied.
38The trial judge found that Sgt. Aylen did not have reasonable and probable grounds to arrest Tremblay for intimidation. She reasoned, at para. 80, that the numerous red flags required further investigation "to ensure that the information relied on by Sgt. Aylen in arresting Mr. Tremblay for intimidation was sufficiently reliable to justify an arrest". She added that, had there been reasonable and probable grounds to arrest for intimidation, she would have found the arrest was nonetheless unlawful because the arrest did not comply with the requirements of s. 495(2) of the Criminal Code.
39Since Tremblay's arrest was unlawful, the trial judge concluded his corresponding detention and imprisonment following arrest were also unlawful. Sgt. Aylen and the OPS were liable for the torts of false arrest, unlawful detention and unlawful imprisonment. The trial judge also held that Tremblay's ss. 7 and 9 Charter rights had been breached.
(3) Unreasonable Search and Seizure
40The trial judge also found that Tremblay and Mongrain's s. 8 Charter rights to be free from unreasonable search and seizure were violated by the issuance and execution of the public safety firearms warrant. First, the trial judge found that Sgt. Aylen failed to make full, frank and fair disclosure of material facts in the Information to Obtain ("ITO") he prepared in order to obtain the warrant. Had this missing information been included, the justice of the peace could not have had reasonable and probable grounds to issue the warrant.
41Second, the trial judge found that even if the warrant was valid, the respondents' privacy rights were nonetheless breached because of the way in which the warrant was executed. The execution of the warrant by the Tactical Unit and their use of a "dynamic entry" into the respondents' home was unreasonable in the circumstances. The trial judge accepted Mongrain's evidence that their home was left in disarray as a result of the search.
(4) Damages
42The trial judge awarded Tremblay $40,923.58 in damages comprised of $15,000 for false arrest and unlawful detention, $10,000 for negligent investigation, $5,000 for wrongful seizure of weapons, $6,814.78 as special damages for legal fees relating to the return of his weapons, and $4,108.80 as special damages for replacing the door and doorframe that were broken during the search. She also awarded Mongrain $10,000 in damages for breach of her s. 8 Charter rights.
C. Analysis
(1) The Standard of Review
43The identification of the legal standards applicable raises questions of law that are reviewable for correctness. For the most part, this appeal does not involve the identification of the proper legal standards, but involves their application. The interpretation of a legal standard involves a question of law. Questions of mixed fact and law that require the making of legal inferences, or the legal effect of findings of fact, are reviewable for correctness: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 21, R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para 18.
44The significant question in this case is whether there are reasonable and probable grounds to arrest. The trial judge's factual findings are entitled to deference, however the trial judge's ultimate ruling whether those facts are insufficient, at law, to constitute reasonable and probable grounds is reviewable on a correctness standard: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20, R. v. Anang, 2016 ONCA 825, at para. 13.
45The trial judge's findings of fact are reviewable only for palpable and overriding error. A palpable error is one that is plainly seen to be unreasonable. Findings of fact unsupported by the evidence satisfy the standard: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 56. An appellate court is also justified in intervening where the trial judge draws an inference or makes a finding of fact that is "demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge": R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 16.
(2) Negligent Investigation
(a) The Trial Judge Erred by Defining the Standard of Care for Negligent Investigation in the Absence of Any Evidence
46Neither side called expert evidence at trial. After the close of evidence, the respondents brought a motion to reopen their case, so they could tender expert evidence to support their claim against the OPS based on inadequate training and supervision. In refusing the motion, the trial judge observed, at para.129, that without expert evidence as to the standard of care applicable to police services in Ontario in 2006 their "claim in negligence against the OPS Board was doomed to fail".
47The trial judge took a different view with regard to the claim in negligence against Sgt. Aylen. While recognizing the general rule that expert evidence is required to establish the standard of care in a negligent investigation claim, she concluded this case fell within the exception for actions involving non-technical matters within the knowledge and experience of the trier of fact. In doing so, she relied on the decision of this court in Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 O.A.C. 173.
48This case did involve routine offences and it was open to the trial judge to conclude that expert evidence of the standard of care was not necessary. However, the trial judge failed to note a critical distinction between this case and Meady. In Meady, the trial judge had a wealth of other evidence available to him with respect to the police policies, procedures and standards that applied at the time. Police training materials were in evidence and were used to cross-examine the police officers regarding the course of action they had chosen to take. In holding the trial judge had not erred in finding expert evidence was not necessary, this court noted the record contained these materials and observed that the trial judge did not require expert evidence to understand them.
49In the present case, the trial judge did not have any materials on police policies, procedures or standards before her. To fill that vacuum, she drew on two sources to guide her determination of the standard of care, both problematic.
50First, the trial judge referred to the "Declaration of Principles" set out in s. 1 of the Police Services Act, R.S.O. 1990, c. P.15 which she described, at para. 65, as "somewhat instructive of the standard for care owed by a police officer to members of the community". The principle set out in s. 1.1 states that police services shall be provided in accordance with "[t]he need to ensure the safety and security of all persons and property in Ontario." From this, the trial judge concluded that Sgt. Aylen overlooked his responsibility to ensure the safety and security of the respondents by arresting Tremblay and executing the public safety firearms warrant.
51The principle set out in this statutory provision is far too general to serve as the basis for defining the standard of care in a particular investigation. The general principle does not displace a police officer's authority to make an arrest when grounds to do so exist under s. 495 of the Criminal Code. To hold otherwise would be contrary to the Supreme Court of Canada's decision in Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; the standard of care, as it relates to the decision to arrest, is satisfied by the presence of reasonable and probable grounds.
52Second, the trial judge noted the actions taken by Officers White and Taillefer, who had investigated earlier complaints that arose out of the dispute. As previously mentioned, Officer White had dealt with Perry's complaints made in June 2006. He had met with Perry to discuss and document her concerns and then took no further action. Officer Taillefer had investigated Tremblay's complaint about Huppé's driving. Taillefer had spoken to both Tremblay and Huppé and then took no further action at that time.
53The trial judge drew on the actions taken by these officers to suggest that Sgt. Aylen should have pursued options such as personally interviewing Perry and Huppé to find out what steps they wanted taken, personally interviewing Mongrain and Tremblay to get their side of the story, and discussing ways to de-escalate the tension between the families. Instead of adopting a similarly reasonable response to the neighbour dispute, Sgt. Aylen had decided to arrest Tremblay and to seek a public safety firearms warrant.
54There are several difficulties with the trial judge's reliance on the conduct of Officers White and Taillefer in defining the standard of care. I need only mention the most significant. Neither Officer White nor Officer Taillefer were witnesses at trial, and there was therefore no evidence as to why they chose the courses of action they had followed.
55More importantly, neither officer stood in the same circumstance as did Sgt. Aylen. Each had dealt with the isolated complaint that was the subject of the occurrence report he submitted. Neither had all the information Sgt. Aylen had. Significantly, neither officer was aware of the two reports of gunshots from the Tremblay property, nor that Tremblay had a firearms licence and three registered firearms. As well, there is no indication that either officer was aware of the van incident which, in and of itself, justified the mischief charge.
55In short, the two brief occurrence reports submitted by Officers White and Taillefer (which were not admitted for the truth of their contents), and the general principles set out in the Police Services Act provide no basis for the determination of the standard of care that applied to Sgt. Aylen.
57An additional complication in this case is that the investigation had taken place some ten years before the civil trial. The trial judge did not even advert to the fact she was defining the standard of care for an investigation that had taken place ten years earlier. On the other hand, in dealing with the claim against the OPS, she reasoned that without evidence regarding what standard of care applied to police services in 2006, the claim against the OPS was doomed to fail. At least some evidence of the police policies, procedures and standards that existed in 2006 was necessary to determine the standard of care that applied to Sgt. Aylen's investigation.
58Finally, in testimony not noted by the trial judge, Sgt. Aylen indicated that on the morning of October 16, 2006 he consulted with his colleagues and his supervisor about the Tremblay investigation and "the appropriate course of action that morning for the file". The fact Sgt. Aylen consulted with his supervisor before proceeding is evidence that he acted as a reasonable police officer would have. In the absence of any other evidence of how a reasonable police officer with the same knowledge and in the same circumstances would have acted, this should have been accorded significant – if not determinative – weight by the trial judge.
59In summary, the trial judge erred by proceeding to define a standard of care that was without any evidentiary basis, and contrary to the only pertinent evidence before her.
(b) The Trial Judge Imposed a Standard of Care Inconsistent with the Established Jurisprudence
60Drawing largely from this court's decision in 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, the trial judge correctly identified the legal principles that apply to consideration of the tort of negligent investigation in the context of laying charges, including the following:
The appropriate standard of care for the tort of negligent investigation is that of the reasonable police officer in similar circumstances.
In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.
This standard does not require police to establish a prima facie case for conviction.
The police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges.
A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect's version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.
61Although the trial judge set out the correct legal principles, she imposed a standard of care inconsistent with them.
62The trial judge held that Sgt. Aylen had a duty to further investigate the red flags that, in her view, undermined the reliability of the information he had. The trial judge indicated, at para. 81, that she realized she was "brushing up against the principle that a police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses, or obtain the suspect's version of events before being able to form reasonable and probable grounds." She then went on to state:
I simply cannot accept that, objectively, reasonable and probable grounds existed in regard to the charge of intimidation when all of these red flags were left waving and the investigating officer chose not to interview the complainants or the suspect in the case before arresting the suspect.
63The trial judge found, at para. 54, that in assessing Sgt. Aylen's conduct, she was entitled to consider not only the information that Sgt. Aylen had, but also "the information that he did not have but which he could have had upon simple inquiry" (emphasis in original). To support this proposition, she cited the decision of Doherty J.A. in R. v. Golub, 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, at para. 21:
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.
64This passage does not support the proposition for which it was cited. The appellant in Golub contested the lawfulness of his arrest arguing the police should have disregarded "the unconfirmed information of an untested informant". In finding the arrest lawful, Doherty J.A. made the point that the police had no good reason to believe the information from the untested informant was unreliable. The words "all information available" refer to the information the officer had in his possession – not additional information the officer "could have had upon simple inquiry".
65In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 Karakatsanis J. approved of Doherty J.A.'s statement in Golub, stating, at paras. 33 and 34, that "[e]xculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors" but added that "the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations."
66More recently, in Barclay, this court reversed a decision that followed an approach similar to that adopted by the trial judge in this case. Barclay involved an auto theft investigation. Notwithstanding the absence of any urgent circumstances, at para. 84, this court pointed out "the trial judge's criticism of the police for failing to follow-up on, or take steps to become aware of, possible innocent explanations ignores the established jurisprudence that police are not required to exhaust all avenues of investigation, establish that an accused has no defence, or even obtain an accused's version of events."
67By proceeding contrary to this well-established principle, the trial judge erred in finding that Sgt. Aylen was required to take additional investigative steps in light of the red flags she identified.
68The trial judge also criticized Sgt. Aylen for taking regard of information that he had, which in her view was unreliable. In assessing the quality and sufficiency of the information they have, police officers "are not entitled to shut their eyes to the obvious:" R. v. Backhouse, 2005 CanLII 4937 (ON CA), 195 O.A.C. 80, 194 C.C.C. (3d) 1, at para. 69. They are entitled to disregard only information which they have good reason to believe is unreliable: Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474, at para. 73.
69None of the red flags identified by the trial judge fell into this category. I need discuss only a few red flags the trial judge identified to illustrate this point.
70One red flag the trial judge emphasized was Sgt. Aylen's failure to personally interview Tremblay or Mongrain, despite having recognized at the outset the principle that police are not required to obtain the suspect's version of events or otherwise establish there is no valid defence. An apt illustration is Collins v. Brantford Police Services Board, 2001 CanLII 4190 (ON CA), 151 O.A.C. 152, 158 C.C.C. (3d) 405, which also involved a neighbour dispute. The police officer in that case arrested Collins based on his neighbours' complaints, without first interviewing him. As he was being arrested, Collins began to tell his side of the story, but the police officer cut him off, saying that he would have an opportunity to do so later. This court reversed the finding of liability for the arrest in that case.
71Moreover, the trial judge did not note Sgt. Aylen's testimony that police often choose not to speak with the subject of a complaint in a neighbour dispute, for fear of escalating it.
72The jurisprudence is clear that the trial judge erred by concluding Sgt. Aylen's failure to interview Tremblay and Mongrain was negligent.
73The trial judge also repeatedly emphasized that Sgt. Aylen did not personally interview Perry and Huppé. Sgt. Aylen had the benefit of lengthy and detailed written statements from each of Perry and Huppé, a detailed timeline of incidents, and Officer White's report of his interview of Perry on October 12, 2006. The trial judge did not identify what, if any, additional information Sgt. Aylen would have received had he interviewed the complainants, let alone how this information would have affected the grounds for arrest. The trial judge erred by concluding that Sgt. Aylen's failure to interview Perry and Huppé was negligent.
74Other red flags identified by the trial judge, including a lack of independence in the statements provided by Morris and Lavigne; the potential for collusion between Perry, Lavigne and Morris; the relationships of the various parties and the motivations of the neighbours involved in the litigation; the fact that the statements were unsworn and some contained hearsay; and the delayed reporting of the gunshots, were not issues Sgt. Aylen had to resolve, though they could be appropriately explored in cross-examination at trial and considered by the trier of fact in assessing a witness' credibility or reliability.
75The police are an investigative body, not an adjudicative one. As McLachlin C.J. stressed in Hill, at para. 50, though police are required to weigh evidence to some extent in the course of an investigation, they are not required "to evaluate evidence according to legal standards or to make legal judgments" which is the task of prosecutors, defence attorneys and judges. This distinction must be kept in mind.
76There was no good reason for Sgt. Aylen to disregard the information he had. It would not be unusual for neighbours to speak with one another about a neighbourhood dispute, for spouses to work together on statements to the police about incidents they observed together, and for complainants to provide additional information as they interact with police. There was nothing in the statements of Morris and Lavigne corroborating those of Perry and Huppé that gave good reason to disregard them. In any event, reasonable and probable grounds can be established without corroboration or confirmation of a witness account: Golub, at paras. 16-17. The statements from Morris and Lavigne, even if defective in some way, could have been ignored completely without affecting the existence of grounds for arrest.
77The trial judge also faulted Sgt. Aylen for not placing more weight on Perry's expressed wish that the police document her concerns, but not contact Tremblay. She erred in doing so. The trial judge mentioned repeatedly that Perry communicated her wishes to police in October 2006. In fact, she did so in August 2006. More importantly, police have to assess a situation themselves. Sgt. Aylen testified that it is not unusual in neighbour disputes for complainants to say they don't want the police to contact the neighbour complained about. The trial judge had no basis for finding that Sgt. Aylen's failure to place weight on Perry's expressed wish was negligent.
78These red flags illustrate the trial judge erred in focusing on potential defects in the information, rather than on whether the information disclosed reasonable and probable grounds to arrest.
79The trial judge also improperly focused, at para. 60, on the presence of "other reasonable options available" to address Tremblay's alleged misconduct and criticized Sgt. Aylen for "jump[ing] to the most dramatic response in the circumstances", arresting him, and executing a public safety firearms warrant.
80The question in assessing whether an arrest was authorized and is therefore lawful is not whether the officer could have done something other than arrest. Rather, the question is: did the officer have grounds to arrest?: R. v. Carelse-Brown, 2016 ONCA 943, 35 C.R. (7th) 377. The fact that the trial judge views other options as preferable is not determinative of whether Sgt. Aylen breached the standard of care. The Supreme Court emphasized this in Hill, at para. 73:
This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. [Emphasis added.]
(3) False Arrest
(a) The Trial Judge Erred by Finding that There Were Not Reasonable and Probable Grounds to Arrest for Intimidation Under s. 495(1)
81The trial judge found Sgt. Aylen had reasonable and probable grounds to arrest Tremblay for mischief. In making that finding, the trial judge gave controlling weight to the fact that the Crown and two levels of court were of the opinion that there was sufficient evidence to support a finding of guilt on this count, beyond a reasonable doubt. However, she attached no weight to the Crown's opinion there was a reasonable prospect of conviction on the intimidation count.
82The trial judge justified not attaching weight to the Crown's opinion by saying, at para. 81, "I cannot conclude that Sergeant Aylen presented to the prosecutor the full facts that were available to him at the time of the arrest." There was, however, nothing in the record to support this finding.
83The only evidence before the trial judge was Sgt. Aylen's testimony that he forwarded "the file" to the Crown's office for screening and prosecution. No suggestion was put to Sgt. Aylen that he omitted or added anything to the file before sending it to the Crown's office, nor did the trial judge identify the facts she believed Sgt. Aylen failed to disclose to the prosecutor.
84Had the trial judge focused on the elements of the offence of intimidation, and on the information that was available, she would have concluded that there were reasonable grounds to arrest Tremblay for intimidation.
85Section 423(1) of the Criminal Code sets out the offence of intimidation:
423(1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,
…(f) besets or watches the place where that person resides, works, carries on business or happens to be;
86The essential elements of the offence of intimidation as charged in this case include (i) that Tremblay watched and beset the Perry and Huppé residence and (ii) that his purpose in doing so was to compel Perry and Huppé to abstain from enjoying the use of their property including their backyard, front yard and swimming pool.
87The mens rea of the intimidation charges – compelling Perry and Huppé to cease enjoying their property – was quite similar to the mens rea of the mischief charge for which the judge at the criminal trial determined was proven beyond a reasonable doubt.
88The statements and timeline from Perry and Huppé provided Sgt. Aylen with enough information to meet the reasonable and probable grounds standard with respect to these two elements. The trial judge erred in finding there were no reasonable and probable grounds to arrest for intimidation.
(b) Section 495(2)
89Section 495(2)(d) of the Criminal Code stipulates, in part, that a peace officer, despite having grounds to arrest, shall not arrest where he or she believes on reasonable grounds that the public interest may be satisfied without arresting the person. It reads as follows:
Limitation
(2) A peace officer shall not arrest a person without warrant in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person
90The trial judge found that despite the presence of grounds to arrest Tremblay for mischief, his arrest was nonetheless unlawful because it failed to comply with s. 495(2). She also said she would have applied s. 495(2) had she found there were grounds to arrest on the charge of intimidation.
91Before moving on, I observe that s. 495(2) only comes into play once s. 495(1) is satisfied and the peace officer already has grounds to arrest. Section 495(2) does not require the officer to conduct additional investigation to determine if the public interest may be satisfied without arresting the person.
92There are two problems with the trial judge's approach. First, the evidence in this case did not support a finding that Tremblay's arrest did not comply with s. 495(2). Second, even if it had, the trial judge erred in failing to apply s. 495(3) which, on the facts of this case would deem Sgt. Aylen to have been acting lawfully when he arrested Tremblay.
(c) The Trial Judge Erred in Finding that the Public Interest Limitation in s. 495(2) Applied
93Section 495(2) places a duty on a police officer who has grounds for arrest under s. 495(1), to not arrest where he or she believes on reasonable grounds that the public interest may be satisfied without arresting the person. The phrase "believes on reasonable grounds" makes clear that the test for applying the limitation in s. 495(2) is both subjective and objective. The police officer must believe that the public interest can be satisfied without arrest, and that subjective belief must be objectively reasonable. Both components must be satisfied. To be clear, it is not enough for a person alleging a violation of s. 495(2) to establish that, objectively, the public interest can be satisfied without an arrest. The person must also establish the police officer believed the public interest could be satisfied without an arrest but went ahead and made the arrest in any event.
94The trial judge set out the correct test for s. 495(2), citing Collins. She said, at para. 86, that the respondents "have to prove that Sergeant Aylen, Officer Aspilaire, and Officer Ryan believed on reasonable grounds that the public interest, having regard to all of the circumstances, could be satisfied without arresting Mr. Tremblay". It is not clear that she found the subjective component of the test was satisfied. She did say at para. 87, "I am satisfied that, not only could the public interest have been satisfied without Mr. Tremblay being arrested, but also, Sergeant Aylen realized that at the time".
95Apart from this passing comment about what Sgt. Aylen realized at the time, her entire rationale for finding s. 495(2) was violated relates to the objective component of the test. If the comment was intended to be a factual finding, it is a palpable error. The trial judge set out no evidentiary support for it, nor could she have, as the record contained none. As I noted earlier, the alleged application of s. 495(2) was never put to Sgt. Aylen.
96More importantly, the only conclusion that could be drawn from the evidence was that Sgt. Aylen believed the public interest required Tremblay be placed under certain conditions, including conditions prohibiting him from possessing any weapons, and ordering that he have no communication with any member of the Perry and Huppé family. It was necessary that Tremblay be arrested to make him subject to these conditions, and these conditions were included in the undertaking upon which Tremblay was released.
97As, on the record, it could not be found that Sgt. Aylen believed on reasonable grounds that the public interest could be satisfied without arresting Tremblay, the trial judge erred in finding s. 495(2) was violated.
(d) The Trial Judge Erred in Failing to Apply s. 495(3)
98Section 495(3) of the Criminal Code reads as follows:
Consequences of arrest without warrant
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).
99Section 495(3)(b), which applies to this case, deems an arrest to be lawful notwithstanding s. 495(2) unless the person asserting its application "alleges and establishes", in the proceedings at issue, that the police violated s. 495(2).
100The appellants submit that s. 495(3)(b) required the respondents to specifically allege a breach of s. 495(2) in their statement of claim. Without such notice, they say, they come to trial not knowing the case they have to meet.
101The respondents submit that s. 495(3) does not require that they specifically plead noncompliance with s. 495(2), but rather, that it is sufficient if the allegation is canvassed in cross-examination at trial. I do not accept counsel's alternative submission that the respondents' statement of claim can be read to implicitly raise s. 495(2).
102I am satisfied that, at a minimum, s. 495(3)(b) requires that an alleged violation of s. 495(2) be directly put to the police officer who made the arrest. It was not put to Sgt. Aylen in this case.
103The cross-examination of Sgt. Aylen did explore some of the factors enumerated in s. 495(2)(d). However, it did not address all of the enumerated factors. More significantly, those enumerated factors are not exhaustive in defining the public interest: Collins, at para. 14.
104As there was no allegation made that s. 495(2) applied, s. 495(3) operated to deem Sgt. Aylen was acting lawfully when he decided to have Tremblay arrested. The trial judge erred in law by failing to apply the deeming provision of s. 495(3).
(4) The Public Safety Firearms Warrant
105The trial judge found there were deficiencies in the ITO and that the warrant should not have been authorized due to those deficiencies. The trial judge also found that, even if the warrant were valid, the respondents' privacy rights were nonetheless breached because of the manner in which the warrant was executed. I will deal with each of these issues separately.
(a) Issuance of the Warrant
106The trial judge correctly recognized, at para. 103, her role in reviewing the warrant was to consider "whether, in light of the record amplified on review, the ITO 'contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met'": R. v. Hafizi, 2016 ONCA 933, 343 C.C.C. (3d) 380, at para. 44.
107The trial judge also set out the correct test, at para. 95, for the issuance of a public safety firearms warrant under s. 117.04 of the Criminal Code: are there reasonable grounds to believe there was "an identifiable threat of serious or significant harm likely to be caused by firearms and other dangerous objects to the safety of specified individuals": R. v. Hurrell, 2002 CanLII 45007 (ON CA), 60 O.R. (3d) 161, at para. 43.
108Despite setting out the correct tests, the trial judge's analysis of whether there were grounds to support the issuance of the warrant was flawed.
109The trial judge's analysis of this issue was affected by her erroneous conclusion that there were no reasonable and probable grounds to arrest Tremblay for intimidation, and that his arrest for mischief was unlawful. Throughout her analysis, the trial judge referred to the matter as civil litigation or a neighbour dispute – without reference to the fact that there were reasonable grounds to believe that Tremblay had committed two distinct criminal offences. She said, at para. 113:
What the police were dealing with, and what they knew they were dealing with, were ordinary people, living in a residential community with their families, who, unfortunately, had become embroiled in a bitter neighbourhood dispute about a drainage ditch. There were bad feelings aplenty, childish behaviour, game playing, unpleasant encounters, hyper-vigilance, and much unneighbourly conduct. But that was it.
110That the trial judge regarded the matter as a purely civil dispute is also apparent in her suggestion at para. 107, that accepting the warrant was properly issued would mean "it would be appropriate to execute a public safety firearms warrant any time a hunter (of which there are millions in Canada) is engaged in a neighbourhood dispute or is engaged in hotly contested civil litigation." This analogy failed to acknowledge there were grounds to believe that criminal conduct had been committed and gunshots had been heard.
111The trial judge indicated that the key deficiency in the ITO was that it "portrayed the tension between Mr. Tremblay and his neighbours as increasing over the months and heading toward a boiling point – a portrayal that was not accurate". She gave two reasons for this conclusion. First, the ITO failed to note Tremblay had removed his old van from the lot line days earlier and erased its offensive message without police intervention. Second, the ITO failed to fairly describe Perry's and Huppé's reports of gunshots.
112In my view, this criticism of the ITO was unfair. The ITO did not state that matters were heading toward a boiling point. The trial judge's comment can only be based on the ITO's account of the level of apprehension felt by Perry and Huppé. This account accurately described their fear of Tremblay. Based on their statements to police indicating that Tremblay's conduct in the past had escalated in response to developments in the civil and by-law proceedings, this was a fair concern to note in the ITO.
113An authorizing justice could have taken a different view of the van incident, cited by the trial judge as an example of de-escalation, when the entire history of Tremblay's use of the van is considered. On July 21, 2006 Tremblay parked an old van close to the Huppé/Perry property line. On September 27, 2006 Tremblay again moved the old van to the property line and this time placed old tires on top of it after seeing a realtor's sign on the Huppé/Perry property advising of an open house the following weekend. Then, on October 9, 2006 Tremblay added a large orange fluorescent message on the side of his van facing the Huppé/Perry property that read: "I am not responsible for your basement floods." It took the intervention of his lawyer to get him to remove the van.
114The trial judge was also critical of the ITO's statement that, "[g]unshots have been heard coming from the [Tremblay] property on a number of occasions by both Deanna Perry and Pierre Huppé." The trial judge identified several deficiencies in this statement:
Of particular significance was the failure to put a timeframe on the two incidents when Mr. Huppé and Ms. Perry suspected they had heard gunshots on the Tremblay/Mongrain property, to acknowledge their uncertainty as to what they had actually heard, to highlight that there was no evidence that Mr. Tremblay had ever threatened anyone, let alone with a weapon, and to note that Mr. Huppé and Ms. Perry had not considered the incidents significant enough at the time to report them to the police.
115Some of these criticisms were valid. The ITO should have noted that the sound of gunshots were heard on June 18 and July 18, 2006 but were not reported to the OPS until several months later, and that there had been no further alleged gunshot incidents since then. Moreover, Perry had indicated to the police in October 2006 that she did not know whether Tremblay had any guns.
116The ITO should also have disclosed that, in her account of the June 18 incident, Perry had said they heard noises that "sounded like three gunshots". However, the evidentiary record, as a whole, does not support the trial judge's finding that Perry and Huppé only "suspected" they heard gunshots or "what they thought might be gunshots" from the Tremblay property. In his statement, Huppé stated that he heard gunshots on both June 18 and July 18, 2006. Regarding June 18, he said, "on entend des coup de feu chez les Tremblays". Regarding July 18, he stated "j'entend un coup de fusil et j'observe un oiseau quitter les cèdres entre ma propriété et celle des Tremblays." The timeline provided by Perry stated that, on July 18, she heard the "same sounds". The cumulative effect of this evidence was that one witness (Huppé) reported hearing gunshots on two separate occasions, and a second witness (Perry), heard similar sounds, or what sounded like gunshots, on the same two occasions. An authorizing justice could have accepted that the police had reports of gunshots being heard from the Tremblay property. An authorizing justice could have viewed more seriously than did the trial judge the reports, albeit dated, of suspected gunshots in the residential neighbourhood.
117The trial judge found a significant omission was that the ITO did not disclose that the police anticipated that a dynamic entry would be used to execute the warrant. This court recently confirmed, however, in R. v. Rutledge, 2017 ONCA 635, 387 C.R.R. (2d) 78, at para. 22, that an ITO need not disclose how police intend to execute the warrant if issued. The trial judge erred in law in finding that this information should have been included in the warrant.
118Many of the other omissions and criticisms identified by the trial judge reflect her own view of the relative significance of certain items of evidence and the inferences she would have drawn.
119For example, the trial judge criticized Sgt. Aylen for including in the ITO that Perry and Huppé reported loud and aggressive arguments from the respondents' household, without disclosing there was no indication those arguments related to the neighbour dispute. However, including this additional information in the ITO would not have detracted from the grounds for issuing the warrant. The ITO did not suggest that the arguments were connected to the neighbour dispute. The authorizing justice could very well have taken the same view as had Huppé, who indicated that the loud arguments showed Tremblay had a problem controlling his temper.
120The trial judge's analysis, as a whole, illustrates that, instead of assessing whether the ITO, as amplified, contained reliable evidence that might reasonably be believed, she substituted her own view of the evidence and the particular inferences that she drew from that evidence. She quoted, but did not heed, the caution of Brown J.A. in Hafizi, at paras. 43-44: "warrants and authorizations are presumptively valid, and the reviewing judge must not conduct a de novo hearing of the ex parte application."
121In R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 86 and 88, this court reminded that warrant review is not a trial, and that "what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree". The court emphasized that it is not "the reviewing judge's role to draw inferences, or to prefer one inference over another." Even where the record has been amplified through the excision of misleading information or the addition of material information, the role of the reviewing judge remains limited.
122In Araujo, at para. 51, the Supreme Court stressed that "[i]n looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued (emphasis in original)."
123The next step is to consider the record, amplified by the information the trial judge found missing, and determine whether there continued to be at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.
124On a consideration of the amplified record, the authorizing justice could have reasonably believed the following: (i) there was an ongoing dispute among neighbours, with Tremblay and Mongrain on one side and Perry, Huppé and others on the other side; (ii) the dispute had resulted in by-law proceedings and civil proceedings, both of which were ongoing; (iii) the by-law proceedings were due to Tremblay's alleged failure to comply with work orders issued by the City; (iv) Perry and Huppé had provided to police written statements and a timeline detailing conduct by Tremblay that had persisted over several months; (v) some of those incidents had been witnessed by other neighbours including Morris and Lavigne; (vi) Perry and Huppé had indicated that, based on this pattern of conduct, they were in fear of Tremblay; (vii) Perry and Huppé had indicated that the conduct had started after the commencement of the civil proceedings and that the conduct appeared to escalate in response to developments in the civil and by-law proceedings; (viii) based on the information received, the police determined that they had reasonable and probable grounds to arrest Tremblay for the criminal offences of mischief and intimidation, and they intended to charge Tremblay with those offences; (ix) there were dated reports of gunshots or what sounded like gunshots from the Tremblay property on two occasions; (x) police subsequently confirmed that Tremblay had a firearms licence and three firearms registered to him at his house; (xi) given his past reaction to developments in the civil and by-law proceedings, there was concern about how Tremblay would react to being charged criminally.
125I conclude that the trial judge erred in failing to find the authorizing justice could have reasonably believed this information and issued the public safety firearms warrant accordingly. Instead, she substituted her own view of the evidence and the particular inferences that she drew from that evidence.
(b) Execution of the Warrant
126The trial judge concluded that the manner in which the firearms warrant was executed was unreasonable. She correctly identified the principles that apply to a review of police decisions with respect to how a warrant is executed, including the manner of entry, drawn largely from the Supreme Court's decision in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142. Despite having set out the proper principles, the trial judge went on to err in her analysis.
127First, she erred in characterizing the Tactical Unit's entry as a dynamic entry. The head of the Tactical Unit testified that upon arriving at the Tremblay residence, the Unit knocked on the doors and telephoned the home several times. After waiting a further 15 minutes, they then breached the front door, called out identifying themselves and entered the home. The decision of this court in R. v. Pan, 2012 ONCA 581, 292 C.C.C. (3d) 440, at para. 38, makes it clear that this falls squarely within a "knock and announce" entry, not a dynamic entry:
The trial judge was wrong to say "[t]he knock-and-announce rule is not a knock-and-break-in-the-door-if-no-answer rule". That is exactly what the rule is. If the police receive no answer, they are entitled to force entry into a home.
128The trial judge's characterization of the Tactical Unit's entry as a dynamic entry, which requires additional justification, was an error of law: Pan, at paras. 41 and 43. This error permeated the trial judge's analysis of the reasonableness of the manner in which the search was executed.
129The Tactical Unit considered the search to be of the highest risk due to the confirmed presence of firearms. They executed the warrant accordingly. The trial judge accepted the Tactical Unit's risk assessment and found no fault on the part of the Tactical Unit, which she said "followed normal police procedures" in the circumstances.
130Sgt. Aylen testified it was not his decision to have the Tactical Unit execute the warrant, nor did he decide how the Unit would enter the house. Nonetheless, the trial judge found, at para. 121, that the Tactical Unit was operating under the instructions of Sgt. Aylen and that he "was in the driver's seat in this operation, and responsibility for its shortcomings falls to him."
131Assuming the trial judge was entitled to infer that the Tactical Unit acted on the direction of Sgt. Aylen, it is impossible to reconcile her conclusion that the manner of the entry was unreasonable with her finding that the Tactical Unit's execution of the entry followed normal police procedures in such circumstances. The uncontradicted and unchallenged evidence was that it was the Tactical Unit, not Sgt. Aylen, who determined the risk level associated with the warrant, and executed the entry. Clear and convincing evidence would have been necessary to establish that the risk level associated with the search, and that the execution of the public safety firearms warrant following normal police procedure, was unreasonable. There was no such evidence in this case, expert or otherwise.
132In her analysis, the trial judge stated at para. 118, that "[t]here were so many other options that the police could have chosen that would have been far less invasive and traumatic for the entire Tremblay/Mongrain family and equally effective in enforcing the law and reducing risk." She set out a number of such options:
warning Tremblay about his conduct, rather than arresting him;
contacting Tremblay's civil lawyer and asking him or her to intervene;
attending at Tremblay's home and asking him to relinquish his firearms until tensions abated;
arresting Tremblay for mischief and releasing him on conditions, including the surrender of his firearms and related documentation; or
obtaining a public safety firearms warrant on reasonable and probable grounds but executing it in a non-dynamic, but equally effective, fashion.
133As I noted earlier, the fact that the reviewing judge considers other options that might have been available to a police officer to be preferable does not in itself suggest that he or she breached the standard of care: Hill, at para. 73.
134More importantly, Cornell, at para. 24, cautions judges to avoid reviewing choices made by police in executing a warrant:
[T]he police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback. [Citations omitted.]
135That the other options identified by the trial judge were never put to Sgt. Aylen for comment or explanation shows her analysis engaged in the very sort of "Monday morning quarterbacking" against which Cornell cautioned. The trial judge essentially substituted her own after-the-fact view of how the police should have acted, without affording them the opportunity to comment on her alternatives.
136I conclude that the trial judge's finding that the manner in which the warrant was executed was unreasonable is unsupported by the evidence in the record.
D. Conclusion
137For these reasons, I would allow the appeal and replace the trial judge's order with an order dismissing the respondents' action. I would fix the appellants' costs of the appeal in the amount of $9,450 plus applicable taxes. If the parties are unable to agree on the costs of the trial, they may make written submissions, not exceeding five pages within 15 days of the release of this decision.
Released: May 31, 2018
"R.G. Juriansz J.A."
"I agree. G.R. Strathy C.J.O."
"I agree. Grant Huscroft J.A."
