COURT FILE NO.: 555/04 and 556/04
DATE: 20070905
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON J.
B E T W E E N:
SUSAN COLLIS
Plaintiff (Respondent)
- and -
TORONTO POLICE SERVICES BOARD, DETECTIVE STEVE IRWIN, DETECTIVE MARK PRICE AND DURHAM REGIONAL POLICE SERVICES BOARD
Defendants (Appellants)
Peter Rosenthal and Jackie Esmonde, for the Plaintiff (Respondent)
Adriana DeMarco, for Toronto Police Services Board and Detective Irwin, Defendants (Appellants)
Matthew L. Gaskell, for Durham Regional Police Services Board and Detective Price, Defendants (Appellants)
HEARD at Toronto: May 25, 2007
SWINTON J.:
[1] The appellants appeal from the decision of Deputy Judge Mungovan dated September 22, 2004, in which he gave judgment for the respondent (plaintiff) Susan Collis against the appellants and awarded $10,000.00 in damages for false arrest, false detention and negligent investigation.
[2] The issues in this appeal are whether the trial judge erred in finding that Detective Steve Irwin of Toronto Police Services (“TPS”) and Detective Mark Price of Durham Regional Police Services (“Durham Police”) did not have reasonable grounds to arrest the respondent on June 15, 2001 for breach of recognizance, and in finding that Detective Price was engaged in a joint effort with Detective Irwin in effecting the arrest.
[3] At the outset of the appeal, the TPS appellants brought a motion to introduce fresh evidence - namely, an affidavit of Crown Attorney Nancy MacDonald. This motion was dismissed.
Background Facts
[4] In June 2001, the respondent Susan Collis was an organizer employed by the Ontario Coalition Against Poverty (“OCAP”). On June 12, 2001, she was arrested following a demonstration organized by OCAP in Whitby that resulted in property damage to the constituency office of then MPP James Flaherty. She was charged with a number of offences and released on a recognizance of bail on June 13, 2001 after a hearing in Oshawa.
[5] There were a number of bail hearings that day involving participants in the Whitby incident. In advance of the hearings, Detective Price of the Durham Police had drafted a number of bail conditions that were contained in a typed schedule. However, the respondent and her counsel objected to the condition prohibiting association with OCAP members because of the impact on her employment. After discussions between the Justice of the Peace, the Crown Attorney Ms. MacDonald and defence counsel Peter Hatch, the fourth condition of the respondent’s recognizance ultimately read:
ABSTAIN FROM COMMUNICATION OR ASSOCIATION DIRECTLY OR INDIRECTLY WITH ANY MEMBER OF THE ONTARIO COALITION AGAINST POVERTY AND NOT TO BE FOUND AT ANY PUBLIC OR PRIVATE MEETINGS OF THE ONTARIO COALITION AGAINST POVERTY and except through the course of her employment and except with her husband Shawn Brant and during the course of employment with Stephanie Gude and with Kellee Hodge at Street Health at 249 Sherbourne St., Toronto.
The capital letters are in typed form in the original document, while the exceptions were entered in handwriting.
[6] When the respondent entered into the recognizance, she was aware that an OCAP rally was planned for Friday, June 15, 2001 in Toronto, as she was involved in organizing it. However, there was no mention of this rally at the bail hearing. In discussing whether there could be an exception for employment limited to specified hours, the respondent explained that her job was not nine to five, stating:
Like with Stephanie there’s a number of things that come in, like case work, that is on call and we have meetings very often at night to accommodate other people’s work schedules. So there really is no rhyme or reason. Weekends often there’s different demonstrations. I can’t – I can’t put hours to it. (Appeal Book, p. 179)
Ms. MacDonald then intervened, explaining that the conditions were aimed at preventing demonstrations.
[7] There was then a discussion of limiting the employment exception to a particular address, and Mr. Hatch then said,
She was just explaining to me that she goes to welfare offices with people. She has regular meetings at public schools. There are a vast number of different things that she does on behalf of the coalition that just can’t be done in her office.
Mr. Hatch continued that the problem with a condition limiting her to a time or place was the fact that she did not have a traditional nine to five job.
[8] After further discussion and hearing from the respondent’s surety, the Justice of the Peace read out the printed part of condition four and then said the exceptions were with Kellee Hodge during employment hours at 249 Sherbourne Street, with Stephanie Gude for employment purposes and with Shawn Brant. Counsel and the respondent left the courtroom to do the paperwork and subsequently came back. Crown counsel explained that a further exception should be added “except through the course of her employment”, and that exception was then added in.
[9] On the evening of June 15, 2001, the respondent attended an OCAP rally held at Christie Pitts Park in Toronto. It had originally been planned for a local high school, but the school board revoked its permission to hold the rally there.
[10] One year prior, OCAP had engaged in a demonstration at Queen’s Park that had turned violent and resulted in criminal charges. Therefore, there was a strong police presence at the rally on June 15, 2001. Detective Price was in attendance that evening to try to identify people who had participated in the Whitby incident and to observe the event. Prior to the rally, Durham Police had delivered copies of the recognizances related to the Whitby incident to the TPS Intelligence Unit.
[11] The respondent addressed the crowd, mentioning her recognizance and stating that this was her work. When Detective Price saw her address the crowd, he formed the opinion that she was in breach of her recognizance, and he informed Detective Irwin of the TPS. Detective Irwin was then a member of the anti-terrorist and threat investigation section of the security section of TPS Intelligence. He recalled that Detective Price told him that the respondent’s conditions included not associating with any member of OCAP at a public or private meeting. Detective Irwin then made arrangements for the respondent’s arrest following the rally. At that time, he did not have a copy of the respondent’s recognizance.
[12] Officers of the TPS arrested the respondent around 9:00 PM as she entered a nearby subway station, and she was taken to 14 Division. According to Detective Irwin’s notes, he met with her shortly after his arrival there, around 9:40 PM. She provided him with a copy of her recognizance and told him that she was not in breach because of the employment exception. After reading the recognizance, Detective Irwin remained of the belief that she was in breach of the condition. He informed her counsel in a telephone conversation that if there was an issue of legal interpretation, it would be determined through discussions between defence counsel and the Crown or, ultimately, in the courts.
[13] Officers at 14 Division obtained a copy of the recognizance that evening and drafted an Information. The respondent was held in custody overnight and appeared with counsel the next morning, June 16, for a bail hearing. At that time, the Information stated that the breach of recognizance was her participation in an unlawful demonstration. The hearing was adjourned to Monday morning to allow the Crown Attorney to obtain further information.
[14] On Monday, June 18, the respondent appeared for a bail hearing with Mr. Hatch, the counsel who had represented her at the bail hearing in Oshawa. The Information had changed, and the breach of recognizance was now “Not to be found at any public or private meeting of the Ontario Coalition against Poverty except through the course of her employment at Street Health at 249 Sherbourne Street, Toronto”. Neither Detective Price nor Detective Irwin had any role in drafting the two Informations, although Detective Irwin testified that he believed this was the condition breached.
[15] The bail hearing was adjourned to June 22 to allow the Crown Attorney to obtain more information about the bail hearing in Oshawa and then further adjourned to June 25. At that hearing, the judge ordered the respondent released on her own undertaking on the condition that she not participate in organizing or aiding and abetting any unlawful acts or demonstrations.
[16] Subsequently, in October 2001, Crown Attorney John Scutt withdrew the charge of breach of recognizance, after he had reviewed the transcript of the Oshawa bail hearing and determined that there was no reasonable prospect of conviction. In his letter to defence counsel, he stated,
I have now reviewed the transcript you provided of the bail hearing at which the bail condition was made. Whatever the intention of the Justice of the Peace may have been when making the term, my interpretation of the actual wording of the condition leads me to the conclusion that the condition says that Ms. Collis can have no contact with OCAP unless she is working with OCAP. Although I view this as a completely meaningless condition, it is the only meaning that I can glean from the convoluted wording. Given that the present allegation is that your client was at an OCAP gathering and that she was there working for OCAP I do not believe that the Crown could establish that she was in violation of the condition.
The Reasons of the Trial Judge
[17] The issues before the trial judge were whether Detectives Irwin and Price committed any or all of the torts of false arrest, false imprisonment and negligent investigation.
[18] After a careful and detailed review of the applicable legal principles, he found Detective Price liable for false arrest because Detectives Price and Irwin “acted together or in concert in effecting the arrest of Ms. Collis” (Reasons, p. 14). He noted that Detective Price had given copies of photographs to assist Detective Irwin in identifying people who broke their bail conditions by their presence at the demonstration. He found that Detective Irwin did not exercise independent judgement in deciding whether to arrest, and Detective Price helped with the decision to arrest (p. 15). He concluded that the arrest of the respondent was a “joint effort” (p. 16). He then went on to say that if he was in error in finding joint responsibility, “it is arguable that Detective Irwin acted as agent for Detective Price and the Durham Regional Police Services Board”.
[19] He then went on to find that Detective Price did not have reasonable and probable grounds for believing that the respondent had breached her recognizance. He observed that the fourth condition was somewhat uncertain, as it required police officers to determine what the respondent’s employment with OCAP entailed (p. 17). He relied on the transcript of the Oshawa bail hearing to determine what the fourth condition was meant to do, stating (at p. 19):
Now, everybody in that courtroom knew, or should have known, that Ms. Collis, besides doing all the other jobs she mentioned, and I have recited them, would arrange demonstrations on behalf of OCAP and speak at them. Yet, when it came to redrafting the original condition that provided quite clearly that she was “not to be found at any public or private meetings of” OCAP, which surely included demonstrations or rallies, nobody thought expressly to limit the exceptions so that she was still prohibited from attending or participating in demonstrations. All of the participants, the court, the Crown Attorney and defence counsel, must have agreed to allowing Ms. Collis to attend demonstrations and to participate at them.
He therefore found that the fourth condition of the recognizance allowed the respondent to participate at the June 15 rally. He also found that Detective Price, as a prudent police officer, should have known this, both because of his presence at the bail hearing and at Christie Pitts, when the respondent announced that she was engaged in work when she spoke. The trial judge found that while Detective Price believed that the respondent had breached her recognizance, his belief could not be objectively sustained (at p. 20).
[20] The trial judge also found that Detective Irwin personally believed in the respondent’s guilt (at p. 21), but this belief was not reasonably held for several reasons. Detective Irwin conducted no independent investigation and simply trusted Detective Price to get it right. He should have investigated the respondent’s assertion at the rally that speaking was part of her employment by obtaining a copy of the recognizance and quizzing Detective Price about what had happened in the Oshawa bail hearing. If unsure about the meaning of the condition, he should have obtained advice from a Crown Attorney, and he should have interviewed the respondent (at p. 24).
[21] The two Police Services Boards were held vicariously liable for the actions of their detectives.
[22] The trial judge noted that if the officers had consulted with the Crown Attorney who had been present at the bail hearing, and she had said the arrest was lawful, he would not have found them liable for false arrest. However, she was not called as a witness. He noted that at the June 25, 2001 bail hearing, counsel for the respondent, Mr. Hatch, indicated that the Crown, Ms. Macdonald, advised him of her opinion that the condition would prohibit the respondent from engaging in public activities with OCAP. However, in an affidavit sworn September 25, 2002, Mr. Hatch made reference to a June 18, 2001 bail hearing, where he stated that Crown Counsel would confirm his position that the respondent could attend OCAP meetings in the course of her employment. In the absence of evidence from Ms. Macdonald as to her interpretation of the condition, the trial judge held that the officers had not discharged their onus to show that there were reasonable grounds for the arrest.
[23] He also found the detectives and the Boards liable for the tort of false imprisonment. While Detective Irwin had read the recognizance at the police station, the trial judge found that the detective was “sorely mistaken” in concluding that the respondent was in breach of the fourth condition, and he should have given meaning to the general exception for employment. The trial judge found that Detective Irwin should have investigated the respondent’s employment, stating (at p. 29):
He knew that she was a spokesperson for OCAP. Surely, speaking at public meetings arranged by OCAP would be her job.
The trial judge could have investigated her employment further by “contacting his lawyer, Ms. MacDonald, the Crown lawyer in Oshawa or a Crown lawyer in Toronto, even at 9 o’clock in the evening” (at p. 29).
[24] The trial judge also found the two detectives liable for negligent investigation. He found that Detective Price should have read the recognizance and discussed it with Detective Irwin and, perhaps, sought legal advice (at p. 31). He found that Detective Irwin should not have accepted Detective Price’s information at face value, but should have looked at the recognizance and discussed it. He should have consulted Crown counsel “[i]f he had any reasonable doubt about the meaning of the 4th condition” (at p. 32). Ultimately, he should have released the respondent because of the need to conduct a full investigation (at p. 33).
[25] With respect to damages for false imprisonment, the trial judge held that the respondent could claim damages for the period from her arrest until the bail hearing on June 16. At the time of the arrest, the respondent was the mother of a small child, and she was pregnant. The trial judge held that she suffered mental anguish and stress, given the loss of liberty and her concerns for her toddler and her unborn child. He assessed the general damages at $10,000.00 and held the appellants to be jointly and severally liable because the two detectives were working together.
The Standard of Review
[26] The standard of review in an appeal on a question of law is correctness. However, findings of fact by a trial judge should not be disturbed unless the judge has made a “palpable and overriding error”. The standard of review for findings of mixed fact and law is on a spectrum. A failure to consider an element of a legal test is an error of law and subject to review on a standard of correctness. However, if the issue on appeal involves the trial judge’s consideration of the evidence, it should not be overturned unless there is palpable and overriding error (Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.) at paras. 8, 10, 36)).
Issues
[27] There are four issues in this appeal:
Did the trial judge err in finding Detective Price bore joint responsibility for the arrest?
Did the trial judge err in finding that Detective Price did not have reasonable grounds for arrest and detention?
Did the trial judge err in finding that Detective Irwin did not have reasonable grounds for arrest and detention?
Did the trial judge err in finding liability for negligent investigation?
The Law of False Arrest and False Imprisonment
[28] False arrest is a tort resulting from the intentional and total confinement of a person against his or her will and without lawful justification. False imprisonment is a tort that similarly flows from the unlawful total deprivation of a person’s liberty. The onus is on the plaintiff to prove that he or she was arrested or detained, and that the defendant caused the arrest or detention. The onus then shifts to the defendant to justify his or her actions (Frazier v. Purdy (1991), 6 O.R. (3d) 429 (Gen. Div.) at 435).
[29] The authority to arrest the respondent lay in s. 524(2) of the Criminal Code, R.S.C. 1985, c. C-46. It reads, in part:
Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused
(a) has contravened or is about to contravene any … recognizance that was issued or given to him, …
may arrest the accused without warrant.
After such an arrest, the accused will appear before a justice under s. 524(3). If the justice finds that the accused has contravened his or her form of release, the justice shall cancel the recognizance and order that the accused be detained, unless the accused shows cause why his or her detention in custody is not justified pursuant to s. 524(8).
[30] A police officer must have reasonable grounds for arrest. In determining that issue, courts have applied the test for reasonable and probable grounds for arrest articulated by the Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241 at 250-51, despite the change in the wording of the Code to “reasonable grounds”. The test is twofold: the officer must subjectively believe there are reasonable and probable grounds for arrest, and the grounds must be justifiable from an objective point of view, in the sense that “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”.
[31] The majority of the Supreme Court of Canada in Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474 stated that a police officer must take into account all the information available to him (p. 19 (Quicklaw)). However, as Doherty J.A. observed in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.) at 749,
Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete.
He went on to say,
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…”
[32] The police officer need not establish a prima facie case for conviction. Rather, as Polowin J. stated in P.H.E. v. Ottawa-Carleton (Region) Police Service, [2003] O.J. No. 3512 (S.C.J.) at para. 54:
It is clear, if one views the tests to be applied at the various stages of the criminal process (those being, for arrest – reasonable and probable grounds, for prosecution – a reasonable prospect of conviction, at a preliminary hearing – evidence that, if believed, could lead to conviction, at trial – proof beyond a reasonable doubt) that a police officer exercises his or her discretion at the very lowest end of this continuum.
Issue No. 1: Did the trial judge err in finding that Detective Price bore joint responsibility for the arrest?
[33] The trial judge began with the issue of Detective Price’s liability, and I shall follow his analysis.
[34] Detective Price, as a member of the Durham Police, did not have the authority to direct TPS officers to arrest the respondent on the evening of June 15, 2001. The trial judge found him liable because of his joint responsibility for the arrest and his lack of reasonable grounds for the arrest. While the trial judge suggested that Detective Price might also be liable on the basis that Detective Irwin acted as his agent, there was no finding of agency made. In any event, the evidence would not support a finding of agency.
[35] Where an unlawful arrest occurs, the mere act of giving information to the police does not expose a complainant to an action for false arrest or false imprisonment. Moreover, a defendant should not be held liable for false arrest or false imprisonment where an intermediate person makes a decision that affects the liberty of the plaintiff (G.H.L Fridman, The Law of Torts in Canada, 2d ed. (Toronto: Carswell, 1990) at 80).
[36] Assessing the extent of a police officer’s involvement in a plaintiff’s arrest in a false arrest claim is analogous to the analysis undertaken to determine whether a defendant in a malicious prosecution case instituted proceedings. In those cases, it is not enough that a defendant has provided the information underpinning another person’s decision to prosecute. The defendant must have been “actively instrumental” in setting the prosecution in motion. Similarly, in the case of false arrest or imprisonment, the defendant must be actively instrumental in the decision to arrest and detain the accused, and it is not sufficient to merely pass on information to a police officer who effects the arrest (Tschekalin v. Brunette, [2004] O.J. No. 2855 (S.C.J.) at paras. 70-71).
[37] In Hanisch v. Canada, [2004] B.C.J. No. 2159, the British Columbia Court of Appeal drew a distinction between cases where the arresting officer acts on his own authority and those where the arrest is a joint act of the defendants (at para. 31). In that case, there were findings by the trial judge that the defendant, a parks warden, had taken advantage of an inexperienced police officer and provided incorrect information leading to the arrest of the plaintiff. The defendant knew that there was no basis for the alleged wrongful taking of property, and there was a degree of personal animosity between him and the plaintiff. The finding of joint responsibility for the arrest turned on a number of factors, including the untrue information provided to the arresting officer and the nature of the public offices of the warden and the police officer (at para. 38).
[38] In this case, the trial judge found Detective Price liable for false arrest and false imprisonment because he found there was a joint effort to arrest the respondent. He made a finding that Detective Irwin did not make an independent decision to arrest (Reasons, p. 15). He based his conclusion of joint responsibility on the fact that both Durham and Toronto police officers were present at the rally and there to help each other.
[39] While the trial judge made a finding of fact that Detective Irwin did not make an independent decision to arrest, in my view, the evidence does not support that finding. Detective Irwin testified that an officer making an arrest must make an independent judgment whether there are reasonable grounds to believe the offence has been committed. He was the one who gave the instructions for the arrest and made the decision to arrest (Transcript, p. 97).
[40] It is clear from his testimony that he relied mainly on information provided by Detective Price, although he testified that he might have had some information by other means, such as a trip to Durham Region on June 12 (Transcript, p. 128). Nevertheless, the decision to arrest was ultimately his, as he stated in cross-examination (Transcript, pp. 112-113):
Q. So you have the primary responsibility for the arrest, in your view?
A. It was a combination perhaps of Detective Price and myself. Detective Price had some of the initial information that he relayed to me, and I just, Detective Price is not a member of the Toronto Police Service, does not have the ability to communicate with these field officers, as I do.
Q. So would you agree, the responsibility for the arrest of Miss Collis on June 15th, 2001, was between you and Detective Price?
A. It was based on - I directed the 14 Division officers to arrest Miss Collis because I believed that she had committed this offence, based on information that I received directly from Detective Price.
[41] The trial judge found that there was joint responsibility for the arrest because the two police forces were helping each other or acting in concert. In support of his conclusion, he made reference to the fact that Detective Price was present to try to arrest those who had participated in the Whitby incident on June 12. The trial judge also stated that Detective Price was trying to ensure that those who had participated in the Queen’s Park incident did not beach their recognizance.
[42] The trial judge misapprehended the evidence as to why Detective Price and his partner were present at the rally, as there is no evidence that they were there for the second purpose.
[43] In my view, the trial judge erred in finding that Detective Price was jointly responsible for the arrest. It is apparent from the evidence that there was some cooperation between the two police forces on the evening of June 15, but there was not the “close working relationship” that the trial judge described, nor was Detective Price “actively instrumental” in effecting the arrest. The evidence shows that Detective Irwin made the decision to arrest. Therefore, the trial judge erred in finding Detective Price and Durham Police liable for false arrest.
Issue No. 2: Did the trial judge err in finding that Detective Price did not have reasonable grounds for arrest?
[44] While it is not necessary for me to deal with this issue, I shall do so, in the event that I have erred in dealing with the first issue.
[45] The trial judge found that both Detectives Irwin and Price subjectively believed that there were reasonable grounds to arrest for breach of recognizance. The second issue on this appeal is whether he erred in holding that the arrest and detention were not reasonable from an objective point of view. The question to be determined is whether a reasonable person in the position of Detective Price would have concluded that there were reasonable grounds for arrest.
[46] The trial judge determined the proper interpretation of the bail condition and whether the respondent was in breach. In doing so, he relied on the transcript of the Oshawa bail hearing and her evidence at the trial, and he made findings of fact with respect to the respondent’s employment. Then he determined that Detective Price did not have reasonable grounds for arrest. In my view, he erred in law in doing so, as he inappropriately used hindsight to find the arrest unjustified based on a determination of the merits of the charge of breach of recognizance. Instead, he should have considered whether there were reasonable grounds for arrest based on information available to the police officers on the evening of June 15, 2001.
[47] The fourth condition in the recognizance is far from clear. In withdrawing the charge, Crown Attorney Scutt described it as “convoluted”. That is a fair description. When one reads it, there are issues about the meaning of the employment exception – for example, whether it applied to employment at a particular address – and what the scope of the employment exception was – in particular, whether the speech at the public meeting was in the course of employment.
[48] The trial judge found that “the wording is difficult in the sense that it bears close reading” (Reasons, p.17). He concluded that there were three exceptions to the fourth condition. He also stated that the condition “exhibits some degree of uncertainty” with respect to the first exception, because it requires the police to determine what the respondent’s employment entails. He then went on to make findings of fact as to what the respondent’s employment entails. At p. 17 of his Reasons, he referred to her evidence at trial, and he stated that she had told the bail hearing what she did as an employee. He then stated, “Organizing demonstrations on behalf of OCAP and speaking at them were two of the many tasks she was required to perform for OCAP”.
[49] He then went on to consider the transcript of the bail hearing to find out how the condition was created and what it was meant to do. He concluded that Ms. MacDonald, the Crown Attorney, knew that convening demonstrations and speaking at them was part of the respondent’s work (Reasons, p.18). He stated that everybody in the courtroom knew or should have known that the respondent would arrange demonstrations and speak at them. He therefore found that the fourth condition allowed the respondent to participate at the rally on June 15, 2001 (Reasons, p. 19). He rejected Detective Price’s conclusion that she could only work at Sherbourne Street as wrong, because the Detective “glossed over or simply ignored the first exception based on employment with OCAP”, and he found that “speaking at public meetings was her job” (Reasons, p. 20).
[50] In fact, Detective Price did not restrict the exception to working at Sherbourne Street. He testified that he believed the respondent breached the condition when she engaged in public speaking, and that she was not in breach just because she was present at the OCAP meeting.
[51] More importantly, though, the trial judge made a palpable and overriding error in concluding that the bail hearing transcript showed that the respondent’s employment included organizing demonstrations and speaking at them. Earlier in these reasons, I have set out the discussion of her employment during the bail hearing. It is neither detailed nor organized, and there is no mention of speaking at public rallies as part of her job, nor is there mention of organizing demonstrations.
[52] The evidence at trial was more extensive with respect to the respondent’s employment activities, as she testified that she helped organize demonstrations and spoke at them. However, that information was not available to Detective Price or Detective Irwin on June 15, and the information had not been disclosed during the bail hearing. At most, the discussion of her employment at the bail hearing had indicated that she attended regular meetings at public schools, and that there were often demonstrations on weekends. Her role in them was not explained.
[53] Detective Price and Detective Irwin, as police officers, had an obligation to give effect to the court order, despite the fact that it was awkwardly worded. Detective Price testified that he believed that the respondent could organize and be present at a public meeting, but that she could not address the crowd because of the bail condition. Nothing said at the bail hearing suggested that her employment included public speaking at rallies. While the trial judge found that to be part of her job, he did so on the basis of testimony at trial that was much more fulsome than the discussion at the bail hearing.
[54] A reasonable person in the position of Detective Price could reasonably believe there were grounds for arrest when the respondent began to address the crowd, given the prohibition on participating in public meetings of OCAP and the lack of clarity about her employment at the time. In my view, the trial judge erred in concluding that Detective Price did not have reasonable grounds for the arrest.
[55] In any event, even if Detective Price had set the arrest in motion improperly, he was not responsible for the ongoing detention of the respondent. After providing information to Detective Irwin at Christie Pitts, he played no further role in the arrest and detention. The decision to keep the respondent in custody was made by Detective Irwin, after reviewing the recognizance, and by other members of the TPS. Therefore, the trial judge erred in finding Detective Price liable for false imprisonment.
Issue No. 3: Did err in finding that Detective Irwin did not have reasonable grounds for arrest and detention?
[56] Detective Irwin accepted and acted on Detective Price’s opinion that the respondent was in breach of the recognizance because she was participating in a public meeting of OCAP. The TPS submits that it was reasonable for him to rely on the information supplied by another police officer, particularly one who had been present at the Oshawa bail hearing a few days earlier.
[57] The TPS appellants relied on Frazer, supra, where the defendant officers had relied on information provided by officers from another police force that a warrant for the arrest of the plaintiffs was in force. This information turned out to be incorrect. The trial judge held that there were reasonable and probable grounds for arrest, in part because it was reasonable to rely on the information provided. I note, however, that the trial judge did not say that there were reasonable grounds for arrest simply because of the information provided by other officers. The trial judge also reviewed the officers’ knowledge of the criminal investigation that helped show the arresting officers’ belief to be reasonable (at pp. 436-7).
[58] In this case, the trial judge concluded that Detective Irwin should not have relied on Detective Price’s information without reading the recognizance and conducting further inquiries, including a possible call to a Crown attorney for advice. Although Detective Irwin did read the recognizance a short time later at the police station, the trial judge held that he erred in his interpretation of the fourth condition, and he did not have reasonable grounds to detain the respondent.
[59] Again, the trial judge erred in his application of the objective test for reasonable grounds. His task was to determine whether a reasonable person, in the circumstances of Detective Irwin, would have reasonable grounds to arrest the respondent for breach of recognizance. However, the trial judge appears to have conflated the test for negligence with the objective test for reasonable grounds for arrest, and in doing so, he erred in law. For example, he held that Detective Irwin could not reasonably rely on Detective Price’s information without further investigation (Reasons, p. 23).
[60] Like the trial judge in this case, I find it troubling that Detective Irwin did not review the terms of the respondent’s recognizance until he met with her at the police station. However, police officers act frequently on the basis of information provided by witnesses or informants. As the Court of Appeal stated in Golub, supra, they must make decisions based on the information available that they determine to be reliable. Here, Detective Irwin was given information by another detective who had been present at the bail hearing in Oshawa a few days earlier, and who believed that the respondent was not allowed to address the public meeting.
[61] Moreover, had Detective Irwin read the recognizance, it is apparent that he would still have ordered the arrest. He arrived at 14 Division around 9:40 PM and met at once with the respondent. She provided him with a copy of the recognizance and stated that she was not in breach because of the employment exception. He read the recognizance and shared the view of Detective Price that she was in breach in addressing the public meeting, although it was his view that the exception for employment related to her employment with Stephanie Gude and Kellee Hodge at Street Health at 249 Sherbourne Street. He did not accept her view that the employment exception extended to speaking at the rally.
[62] Again, the trial judge applied his own interpretation of the condition, finding that Detective Irwin ignored the three exceptions and improperly conflated the first general exception for employment with the address-specific exception. Had the detective read it properly, according to the trial judge, he would have had to obtain further information about the respondent’s employment before arresting and detaining her.
[63] In my view, the trial judge failed to ask himself the right question – whether Detective Irwin, having read the recognizance, spoken with the respondent and considered what Detective Price had told him, had reasonable grounds for arrest. The trial judge has, in effect, determined the legal issue whether there was a breach of recognizance by giving his interpretation to the document. Again, in doing so, he found facts about the respondent’s employment based on evidence at trial that was not available to Detective Irwin and was not given at the bail hearing. In my view, he inappropriately used hindsight to find the arrest unjustified.
[64] The trial judge was critical of Detective Irwin for his failure to have further discussions with Detective Price. However, even if there had been a discussion between Detectives Price and Irwin, it is clear from Detective Price’s evidence that he believed the respondent to be in breach of the condition once she began to speak publicly to the rally, and any such discussion would not have changed the information available to Detective Irwin.
[65] The trial judge was also critical of Detective Irwin for failing to consult a Crown Attorney for assistance. Counsel for the respondent conceded during oral argument of this appeal that such a step would not reasonably be expected of an officer in the circumstances on the night of the arrest.
[66] In discussing Detective Irwin’s liability, the trial judge mentioned that Crown counsel later withdrew the charge of breach of recognizance. He suggested that with a better investigation, the arrest would probably not have occurred (Reasons, p. 24). In doing so, he failed to consider the difference in circumstances of the police officers and the Crown Attorney. The charges were withdrawn after the Crown Attorney reviewed the transcript of the bail hearing, which was not available to Detective Irwin. I note as well that the Crown has a different test for deciding whether to proceed – namely, whether there is a reasonable prospect of conviction, not whether there are reasonable grounds for arrest.
[67] Moreover, the trial judge failed to take into account that there were a number of appearances before the courts following the arrest, and the Crown Attorneys did not withdraw the charges, even though they would have had the recognizance available. At the Show Cause hearing on June 25, 2001, defence counsel conceded that the Oshawa Crown Attorney Ms. MacDonald thought the condition would prohibit the respondent from engaging in public activities with OCAP (Appeal Book, p. 230). As well, defence counsel mentions that there may be an argument whether speaking to the meeting was in the course of her employment duties (Appeal Book, p. 224). He indicated that he would lead evidence that it was within the course of her duties. However, the Crown made no effort to withdraw the charges at that time.
[68] In my view, the trial judge erred in applying the objective test for reasonable grounds, as he conflated it with a test for negligence and inappropriately judged the officers’ conduct on the basis of information not available to them at the time of the arrest, his own view of the correct interpretation of the condition, and his findings of fact. On the information available at the time of the arrest, Detective Irwin did have reasonable grounds for arrest for breach of recognizance, on both subjective and objective grounds.
Issue No. 4: Did the trial judge err in finding liability for negligent investigation?
[69] The elements of the tort of negligent investigation were set out by the Court of Appeal in Hill v. Hamilton-Wentworth Regional Police Services Board, [2005] O.J. No. 4045 at para. 83:
The standard of care, at a general level, is the same as the standard respecting other professionals: what would a reasonable police officer in the same circumstances as the defendant do? In an arrest and prosecution context, the standard becomes more specific and is directly linked to statutory and common law duties, namely did the police have reasonable and probable grounds to believe that the plaintiff had committed a crime?
[70] In this case, the trial judge concluded that Detective Irwin should have taken further steps before making the decision to arrest – reading the recognizance, discussing it with Detective Price, and perhaps obtaining legal advice from a Crown Attorney. There was no evidence before him that a reasonably prudent police officer would have taken such steps as obtaining legal advice before proceeding to an arrest. Indeed, counsel for the respondent conceded that the failure to consult the Crown was not reasonably required.
[71] In any event, as I have found that there were reasonable grounds for the arrest, the standard of care has been met, and there can be no liability for negligent investigation.
Conclusion
[72] Therefore, the appeals are allowed, and the judgement below is set aside, and the action is dismissed against all defendants.
[73] The TPS appellants seek costs of $6,000.00 of the appeal, while the Durham appellants seek $3,500.00. The respondent seeks $3,000.00 for the motion for fresh evidence.
[74] While the amounts claimed by the appellants do not seem large, it must be remembered that this is an appeal from a Small Claims Court decision, and the costs awarded should reflect that fact. Costs of the appeal are awarded in the amount of $2,500.00 to the TPS appellants and $1,500.00 to the Durham appellants. The respondent is awarded $1,000.00 for the motion for fresh evidence brought by the TPS appellants, plus disbursements for that motion, which shall be set off against the costs ordered payable to the TPS appellants.
Swinton J.
Released: September 5, 2007
COURT FILE NO.: 555/04 and 556/04
DATE: 20070905
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SUSAN COLLIS
Plaintiff (Respondent)
- and -
TORONTO POLICE SERVICES BOARD, DETECTIVE STEVE IRWIN, DETECTIVE MARK PRICE AND DURHAM REGIONAL POLICE SERVICES BOARD
Defendants (Appellants)
REASONS FOR JUDGMENT
SWINTON J.
Released: September 5, 2007