COURT FILE NO.: 740/03

DATE: 20050616

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

SHUQIN LIU

Appellant/Plaintiff

• and -

TORONTO POLICE SERVICES BOARD, DETECTIVE TIM KAVANAGH, POLICE CONSTABLE WILLIAM NORMAN AND POLICE CONSTABLE KENNETH BOONE

Respondents/Defendants

S. Liu, in person

K. Franz and M. Siboni, for the Respondents/Defendants

HEARD at Toronto: May 31, 2005

O’DRISCOLL J.:

i. Nature of Proceedings

1The Appellant/Plaintiff appeals to the Divisional Court under s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, from the judgment of Deputy Judge M. Wolfe, in the Small Claims Court at Toronto, dated October 27, 2003, granting the Respondents’ motion for non-suit and dismissing the Appellant’s claim against the Respondents for: (1) false arrest, (2) unlawful search, (3) unlawful strip search, (4) unlawful detainment, (5) negligence and (6) breaches of his ss. 7, 8, 9, 10, 11, 12 and 15 rights under the Charter of Rights and Freedoms.

2The appeal fails.

II. The Evidence

3The Appellant/Plaintiff called two (2) witnesses at trial: himself and his landlady.

4The evidence of the Appellant disclosed that:

5The Respondents, P.C. Boone and P.C. Norman, were in uniform and driving a marked police car on Tuesday, July 9, 2002 at about 11:00 p.m. They observed the Appellant as he locked a bicycle to a parking meter located just outside a dark parking lot of a Loblaws store located at the corner of Christie Street and Dupont Street, Toronto. The store was closed and its parking lot deserted. The lot was dark except for a few parking lot lights.

6The Appellant had removed the bicycle from the trunk of his vehicle. The vehicle contained several bicycle parts and locks. The vehicle bore Minnesota licence plates.

7The Respondent constables approached the Appellant and asked him: what he was doing, where did he get the bicycle that he had just locked to the parking meter and what was his name and address.

8The Appellant testified: “At the time they asked did I own the bike, I probably answered no, but I’m not sure”. The Appellant also testified that he told Officers Boone and Norman that he “got the bike from an apartment building’s dump”, but qualified this evidence by saying that the two (2) constables may not have heard the word “dump” and may only have heard that he got it from an apartment building. The Appellant testified that the officers were never told that he had purchased the bicycle.

9The Appellant testified that he identified himself with a Minnesota driver’s licence.

10The Respondent constables seized a set of keys carried by the Appellant and the bicycle that he had locked to the parking meter. They gave the Appellant a signed property receipt for these items and told him that he could go home; they told the Appellant that their investigation would continue.

11At about 1:15 a.m. on July 10, 2002, the same two (2) constables went to where the Appellant had a room at 48 Garnet Avenue, Toronto and arrested him on a charge of possession of property obtained by crime, contrary to s. 354(1) of the Criminal Code of Canada. The Appellant was advised of his right to counsel and he was brought to 14 Division. At 48 Garnet Avenue, the Appellant asked the two (2) officers not to put the handcuffs on him in the sight of his landlady. The officers granted the Appellant’s request and took him down the street before placing him in handcuffs.

12At 14 Division, the Appellant was taken before the booking sergeant at 1:40 a.m. Those proceedings were recorded on a video cassette filed by the Appellant at trial as Exhibit #4.

13Exhibit #4 discloses that at the booking desk:

(a) The Appellant was asked whether he understood the charges that were going to be laid against him and he said that he did.

(b) The Appellant was advised that he could make reasonable use of a telephone.

(c) The Appellant was again advised of his rights to counsel, and

(d) The Appellant was advised that because he would be left unattended in a waiting area at 14 Division, he would be strip searched to ensure his safety, to prevent any escape and to prevent any injury to any member of the Toronto Police Service.

14The Appellant was then questioned and charged under s. 354(1) of the Criminal Code of Canada. At 6:13 a.m. on July 10, 2002, he was released on a promise to appear.

15In para. 1(d) of his claim, filed July 24, 2002, the Appellant claimed damages resulting from his false arrest. He claimed that his landlady witnessed the 1:15 a.m. arrest and evicted him. In her evidence, the landlady, Ms. M.Z. Huang, testified that the Appellant was asked to vacate some four (4) months after the arrest because he did not keep his room clean – he was always fixing bicycles in the house.

16The Appellant in his evidence said nothing more about damages.

III. Excerpts from the Reasons of the Trial Judge on the motion for non-suit

…I find that the plaintiff’s own evidence satisfies me that in the circumstances he described, that is attending at a Loblaws parking lot at eleven or eleven fifteen at night, locking and unlocking bicycles, and when approached by police to ascertain what he was doing, admitting that he may have told the police that one of the bicycles was not his. This, coupled with the fact that the plaintiff’s vehicle was licensed to the state of Minnesota, and his driver’s permit was issued by that state, and that the vehicle contained a number of bicycle parts, and those facts as described by the plaintiff reasonably establishes, from an objective point of view that reasonable and probable grounds existed for the arrest.

The test, I suggest, for such an objective point of view is that of a reasonable person standing in the shoes of the officers viewing the scene as described by the plaintiff; and I find as a fact, that view would satisfy the necessity for reasonable and probable grounds for the arrest. The law is also clear that police officers are not required to demonstrate anything more than reasonable and probable grounds. That is, they are not required to establish a prima facie case for conviction, and on the plaintiff’s own evidence were entitled to believe that they had reasonable and probable grounds for the arrest.

I am therefore satisfied that the plaintiff has not made out a prima facie case for false arrest, based on his own testimony. (Transcript: October 27, 2003, pp. 41-42)

17The trial judge found that there was no evidence that any of the Appellant’s Charter rights were infringed and concluded:

…we’re left with this result: The plaintiff’s own evidence is sufficient to disprove his claim for false arrest, and with that finding all those matters which I have described which might have formed the basis of a claim, pursuant to that, vanish, as well; including any special damages that might have followed, but in any event were never proved. (Ibid. p. 44)

IV. Standard of Review

18In my view, the standard of review on this appeal as to whether or not a non-suit should or should not have been granted by the trial judge is a question of law and the standard is one of correctness:

(a) The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworth’s 1999), Sopinka, Lederman and Bryant, p. 138

(b) Mallet v. Alberta (Motor Vehicle Accident Claims Act, Administrator), 2002 ABCA 297, [2002] A.J. No. 1551 (Alta. C.A.) at para. [35]

(c) Ontario v. Ontario Public Service Employees Union, [1990] O.J. No. 635 (Ont. Div. Ct.), p. 10 - p. 11.

V. What is the Proper Test in deciding the validity of a non-suit?

19In Hall et al. v. Pemberton (1974), 1974 468 (ON CA), 5 O.R. (2d) 438 (Ont. C.A.) said:

The principle which this Court must apply is stated by Lord Penzance in Parfitt v. Lawless (1872), 41 L.J.P. & M. 68 at pp. 71-2 where he said:

I conceive, therefore, that in judging whether there is any case evidence for a jury the Judge must weigh the evidence given, must assign what he conceives to be the most favourable meaning which can reasonably be attributed to any ambiguous statements, and determine on the whole what tendency the evidence has to establish the issue.

and:

From every fact that is proved, legitimate and reasonable inferences may of course be drawn, and all that is fairly deducible from the evidence is as much proved, for the purpose of a prima facie case, as if it had been proved directly. I conceive, therefore, that in discussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue.

20In Ontario v. OPSEU (supra), this Court said at p. 8:

The standard of proof on a non-suit is that of a prima facie case, not a case on the balance of probabilities. If a prima facie case has been shown a non-suit must not be granted. It is erroneous to determine a non-suit motion on the basis of the higher onus of the balance of probabilities. A prima facie case is no more than a case for the defendant to answer,

“The term non-suit describes the modern practice of the defendant making an application for judgment at the close of the plaintiff’s case on the ground that the plaintiff has failed to make out a case for the defendant to answer.” Williston and Rolls, “The Conduct of an Action”, p. 45. (Butterworths)

“A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury, acting judicially, could find in favour of the plaintiff. The decision of the judge in both jury and non-jury actions is a decision on a question of law. Sopinka, “The Trial of an Action”, p. 124 (Butterworths)”.

The “normal way” in a civil action would be on the balance of probabilities. Where a judge is sitting with a jury, the issue is whether there is some evidence to support the claim. If there is, the case goes to the jury. If there is none, it does not.

When sitting alone the judge poses the same question. If there is some evidence a motion for non-suit must be dismissed. If there is none, it must be granted.

VI. What are the constituents of a lawful arrest under the Criminal Code of Canada?

21In R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, 248, Cory J., for an unanimous seven (7) judge court said:

[17] In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

VII. Conclusions

22In my view, the Deputy Judge was correct when he held that all the surrounding circumstances provided the two (2) arresting constables with reasonable and probable grounds to effect the arrest and that the same evidence would enable a reasonable person to come to the same conclusion. Having reached that conclusion, the Deputy Judge was correct to conclude that the Appellant/Plaintiff had not made out a prima facie case of false arrest and the motion for non-suit should be granted.

23In my view, the Deputy Judge, having concluded that the arrest was lawful, was correct in finding that the subsequent search and detention were not unlawful, nor was there any negligence: see: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51 per Lamer C.J.C. at para. [14].

Alleged Charter Violations

24In my view, the Appellant’s own evidence and Exhibit #4 (video cassette) answer the Appellant’s allegations of violations of his rights under ss. 7, 8, 10 and 11 of the Charter.

25In my view, there is no evidence of a breach of s. 12 of the Charter (“cruel and unusual punishment”) as explained in R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045 at para. [52] and [53].

26In my view, there was no evidence that the s. 15 Charter rights of the Appellant were violated. See: Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497 at para. [88].

Allegations by the Appellant of bias on the part of the Deputy Judge who presided at Trial

27In my view, the record is devoid of any evidence of judicial bias or any evidence of an apprehension of judicial bias on the part of the Deputy Judge. The principles that apply to this type of allegation are found in:

1. Committee of Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 394

2. R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484

3. Marchand v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 at para. [130] (Ont. C.A.)

VIII. Disposition

28If the Deputy Judge was in error in granting the non-suit and I am in error in upholding that finding, then what?

29The Respondents/Defendants elected, or are deemed to have elected, not to call any evidence. Even if the Appellant/Plaintiff has raised a prima facie case of unlawful arrest, in my view, based on his own evidence, the Appellant/Plaintiff remains a long way from proving, on a balance of probabilities, the allegations set out in his claim. If necessary, I would rely on the provisions of s. 134(6) of the Courts of Justice Act (supra):

A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.

30I find no substantial wrong or miscarriage of justice in this case.

31It is true that the Appellant appears on his own behalf. However, he is not a novice with regard to suing the Toronto Police Services Board (TPSB). In about July 2003, the Appellant/Plaintiff commenced a proceeding in the Superior Court of Justice against the same Respondents/Defendants alleging malicious prosecution based on the same allegations as formed the basis of the claim in this lawsuit. Counsel for the Respondents/Defendants takes the position that the claim in that case is “out of time”.

32On January 13, 2004, in an assessment of damages, the Toronto Small Claims Court (TO-75318/03) awarded the Appellant $500 general damages and $2,500 punitive damages because the TPSB had refused to destroy the Appellant’s fingerprints and photograph as a “first offender” after charges against him were withdrawn. The impugned decision was based on the wording of the TPSB’s 1969 policy. The Appellant included the reasons of the Small Claims Court in that claim as part of his factum in this appeal.

IX. Result

33The appeal is dismissed with costs payable by the Appellant to the Respondents. If the parties are unable to agree on the amount, written submissions may be filed within twenty (20) days of the release of these reasons. Thereafter, costs to be fixed.

34The usual practice of requiring the opposite party, here, Mr. Liu, to approve the proposed formal draft order is disposed of in this case.

35Following the Court’s practice when a litigant is self represented, the proceedings on this appeal were recorded by a court reporter.

O’Driscoll J.