ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
CUNNINGHAM A.C.J., R.G. THOMAS and FERRIER JJ.
B E T W E E N:
IRVINE FORREST
Osborne G. Barnwell, for the Appellant (Plaintiff)
Appellant (Plaintiff)
- and -
P.C. KIRKLAND BADGE NO. 8646 HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Robert Ratcliffe and Jim Smith, for the Respondents (Defendants)
Respondents (Defendants)
HEARD: June 28, 2011
On appeal from the judgment of Justice Sandra Chapnik of the Superior Court of Justice, on June 4, 2010 dismissing the plaintiff’s claim for damages.
R.G. Thomas, J.
1Irvine Forrest appeals from the judgment of Justice Sandra Chapnik, dated June 4, 2010, dismissing his claim for damages for the tort of malicious prosecution and for damages pursuant to s. 24(1) of the Charter of Rights and Freedoms for violation of his rights to life, liberty and security of the person guaranteed by s. 7 of the Charter.
2In essence, the trial judge concluded that Constable George Kirkland of the Ontario Provincial Police had reasonable and probable grounds to charge Forrest with assaulting Robert Kasonde and causing him bodily harm on November 26, 2004 during a fight in the library of Warkworth Institution, a medium security Federal prison. Also, with respect to the charge of malicious prosecution, she held that Forrest failed to establish Kirkland acted with malice when he initiated the prosecution against him. There was no evidence that Kirkland was motivated or fuelled by a primary improper purpose other than the carrying of the law into effect. In addition, she denied Forrest’s claim for damages under s. 24(1) of the Charter because he had failed to prove that Constable Kirkland acted with mala fides when he laid the charge against him. There was no breach of his Charter rights under s. 7 of the Charter.
Background
3On November 26, 2004, a physical fight erupted in the library of Warkworth Institution in Campbellford, Ontario between two inmates, Robert Kasonde and Alvin Prasad. Irvine Forrest, who was also an inmate, was present when the fight commenced. Both Kasonde and Forrest had obtained permission to use the library on November 26. Prasad had not applied for or received such permission.
4Kasonde was studying for his university courses. He was serving a life sentence for double homicides. Forrest, who was serving a sentence of 18 years for attempted murder, offences involving violence and weapons, said he was preparing for a judicial review application in the Federal Court of Canada. Prasad, who was seated next to them, was 20 years younger but much smaller than Kasonde.
5Forrest, who was soon to be 49 years old, was at that time a chairman of an organization called Black Inmates and Friends Assembly (B.I.F.A.). He said black inmates joined together as a group to assist each other. He was responsible, he said, for more than six hundred complaints and grievances. Also, he had several review applications before the Federal Court of Canada. He was often called in, he explained, to resolve conflicts between inmates and to represent or assist inmates file complaints or grievances or assist with judicial matters in either the provincial or Federal court.
6The day before, Kasonde had approached the librarian complaining about Prasad’s noise and inappropriate conduct which made it very difficult for him to concentrate. On November 25, Kasonde simply registered his complaint with the librarian and departed the library.
7On November 26, 2004, at approximately 3:00 p.m., Kasonde again complained vocally about the noise and inappropriate conduct of Prasad who was near him in the library. Kasonde told Prasad to be quiet because he was trying to study. Prasad did not appreciate Kasonde’s remarks. He invited Kasonde to step outside. Kasonde punched Prasad who retaliated and punches were thrown by both men at each other. There is no dispute that Kasonde threw the first punch.
8A central issue in this case is whether Forrest assaulted Kasonde during the fight. Forrest claims he attempted unsuccessfully to separate Kasonde and Prasad. He claimed he had no involvement in the altercation other then as a peacemaker. However, Kasonde maintained, soon after the fight and consistently thereafter, that he was struck in the face by Forrest at least once during the melee which lasted only a short time.
9Kasonde suffered serious damage to his right eye. Security guards arrived swiftly to the scene and both Prasad and Kasonde were removed. Forrest, who maintained he was not involved, was also taken into custody by the guards. He had spoken to Bob Fasching, the librarian, in his office after Prasad and Kasonde were removed and before the guards took him away.
10Krista Bruce, a security intelligence officer with Corrections Service Canada began an internal investigation after she was informed of the fight in the library. She had worked at Warkworth for some six years. She had a brief interview with Kasonde and immediately became aware he had suffered a serious eye injury and arranged for him to be taken to a nearby hospital. Kasonde told Ms. Bruce that he had been struck in the face by both Prasad and Forrest. Prasad was placed in segregation. He was given the last bed available in the segregation area. Kasonde was taken to hospital for emergency medical treatment.
11After speaking to several of her colleagues, she advised the warden what had taken place. Eventually, the warden decided that Forrest should be transferred to Kingston Penitentiary because there were no beds remaining in Warkworth’s segregation area. Ms. Bruce said he was regarded as an inmate at Warkworth who was temporarily and involuntarily transferred to Kingston Penitentiary.
12Forrest was transferred to Kingston Penitentiary, a maximum security facility, on the evening of November 26, 2004 after the dinner hour. He asked for and was granted a bed in the segregation area.
13On November 27, 2004, Ms. Bruce had a brief telephone conversation with Constable Kirkland of the Ontario Provincial Police who frequently attended Warkworth Institution to deal with alleged criminal conduct on the part of inmates. He had been an Ontario Provincial Police officer since August 1994. Ms. Bruce did not contact police on November 26th but she believes that the correctional manager on duty, David Pitts, notified police of the occurrence.
14Constable Kirkland was assigned by his supervisor to investigate the incident. Because there was no threat issue, Constable Kirkland did not attend Warkworth until November 30, 2004 when he met with Ms. Bruce at approximately 9:45 a.m. She gave him a package and a brief summary of information she had obtained. There were five statement reports from Warkworth officers. Constable Kirkland read the reports and thereafter began an interview with Kasonde who returned from hospital the day before. Constable Kirkland obtained a KGB statement which was audio taped. He also interviewed Prasad who provided only a short statement. Constable Kirkland obtained from Ms. Bruce a list of all witnesses in the library on November 26th.
15On January 4, 2005, he commenced interviewing eight persons who were in the library at the material time. Interviews were all audio taped.
16Ms. Bruce explained that generally if there are serious injuries in a fight, police are notified and become involved. If police begin an investigation, the internal investigation by the security intelligence officer ends. If the police do not become involved, the incident is dealt with internally which could lead to internal discipline sanctions. There is no double jeopardy system for inmates because the police investigation could lead to charges under the Criminal Code.
17Ms. Bruce interviewed Kasonde on November 29th and stated it contained essentially the same information received from him on November 26th. Kasonde confirmed on both dates that he had been struck in the face at least once by Forrest.
18On January 7, 2005, Constable Kirkland went to Kingston Penitentiary to interview Forrest. He advised Forrest of his rights to counsel and administered the standard police caution. He said that Forrest did not want to speak to a lawyer at that time and declined to provide a statement to him.
19Ms. Bruce interviewed Kasonde on December 9, 2004. She learned that he felt a fair degree of pressure from several other black inmates over his refusal to join or participate in B.I.F.A. activities within the institution. Kasonde said he never joined this group for his own personal reasons. He said he was from Africa and had absolutely nothing in common with the inmates from Jamaica who make up the majority of the B.I.F.A. group at Warkworth.
20She also explained that when the segregation area at Warkworth is full, there is a memorandum of understanding with maximum security institutions in Kingston that would temporarily house Warkworth inmates. The decision to transfer Forrest to Kingston Penitentiary and send Prasad to segregation in Warkworth were decisions made by the warden. She added that there is a memo of understanding with the Province of Ontario which provides that when an inmate is required for court outside the jurisdiction of the institution, inmates will be housed at a provincial institution near the court and transported daily by officers designated for court purposes. She explained that the police have no role or jurisdiction over the management of the inmates of the institution and have no role in where the inmates are at any given time or where they may be transferred to. She added that she has no decision making authority in determining whether or not to proceed with a criminal charge. She emphasized that the Ontario Provincial Police had no role in the location of the plaintiff Forrest in a particular institution.
21Ms. Bruce advised she had numerous interactions with Constable Kirkland relating to numerous cases over the years. He was one of six officers at his detachment who could come to Warkworth when a correctional manager contacted police. The staff sergeant would assign the officer to the case.
22Kasonde had medical treatment at the Trenton Hospital. The right eye was ruptured and required surgery. He has a detached retina and has minimal vision in his right eye.
23Ms. Bruce maintained that she had never heard in the six years between November 26, 2004 and April 2010 when the trial took place that Kasonde had recanted his story.
24On January 11, 2005, Constable Kirkland charged Forrest and Prasad with assaulting Robert Kasonde and causing him bodily harm on November 26, 2004. Forrest and Prasad were joint co-accused.
25Forrest obtained a counsel from Kingston. He was in custody in segregation at Kingston Penitentiary, which is what he requested. Later, he was transferred to a provincial jail for appearances in Ontario Court at Brighton. His first appearance was March 2, 2005. There were two more attendances, on April 6 and May 9, 2005. Later in May, a pre-trial conference was held. Assistant Crown counsel Bradford John Kelnick represented the Crown. Mr. Kelnick sent an email to Constable Kirkland on May 18, 2005 indicating that after the pre-trial conference he concluded the charges against both Prasad and Forrest should be withdrawn because there was no reasonable prospect for conviction in the absence of corroboration. Actually, although the length of time is not clear, Forrest was in Kingston Penitentiary for a short time between March 3 and June 22 in order that his counsel could prepare for trial.
26On June 22, 2005, Crown counsel Kelnick withdrew the charges against both Prasad and Forrest. Forrest was returned to Kingston Penitentiary and placed in the general population.
Findings of the Trial Judge
27The trial judge summarized the evidence of inmate witnesses and staff witnesses. She also referred in detail to the evidence of Kasonde and also commented on the gist of Prasad’s evidence that Kasonde was the instigator without provocation and that Forrest was not involved. In the words of Prasad, “Forrest had nothing to do with it. He was there but had nothing to do with the altercation”.
28The trial judge stated as follows in her analysis of the case:
56Central to the Plaintiff’s claim of malicious prosecution is the conduct of the Defendant, Officer Kirkland, and the Plaintiff’s allegation that he lacked reasonable and probable grounds to conclude that Forrest had committed a criminal act when he laid the assault charges against him in January 2005.
57Specifically, the Plaintiff contends that he was either under instructions to charge Forrest for an improper purpose (to get him out of the institution) or he was wanton and reckless in his assessment of the case. I disagree. Not only is there no evidence to support this theory but the evidence is to the contrary.
58The evidentiary record before the officer was well-documented in this case. Officer Kirkland conducted a very thorough investigation of the incident. He interviewed all witnesses and reached a reasonable and fair conclusion based on the evidence before him. This was not a numbers game, as suggested by the Plaintiff. Upon careful scrutiny of the evidence, the assertion of the defence that eight witnesses attested to Forrest’s non-involvement as against the victim who said otherwise, quickly falls apart.
59The evidence of the five inmate witnesses was contradictory and at times, speculative; the two independent staff members had limited vision of the event; and the evidence of the combatants was subject to reasonable assessments of credibility.
68In my view, the officer’s respective assessments of the various witnesses’ credibility were compelling and reasonably supported by the evidence.
29Justice Chapnik concluded as follows:
71Clearly, after reading the SIO (Security Intelligence Officer) reports and interviewing Kasonde and Prasad, Officer Kirkland formed the subjective belief that an offence had taken place, involving Forrest. In my view, his belief was reasonably based. After further investigation and by January 7, 2005, this belief “solidified” and he believed he had at that juncture reached the threshold to lay a charge of assault against Forrest. Again, I find that this assessment was well-supported by the evidence.
72Further, in my view, the officer was entitled to rely on his training and experience in the prison milieu, in weighing various factors. His honest belief was based on reasonable grounds. He conducted his investigation in a professional, principled manner. Moreover, the ordinary prudent person would likely have reached the same conclusion. I find that Officer Kirkland at all times acted honestly, in good faith, in accordance with his statutory duties and in the interests of the proper administration of justice.
73The Plaintiff has not satisfied his onus to establish the absence of reasonable and probable grounds when Officer Kirkland laid the charge of assault causing bodily harm, against him. I find that Officer Kirkland had reasonable and probable grounds to charge Forrest with assault under s. 267(b) of the Criminal Code on January 11, 2005.
74Though it is not necessary to do so, I will comment that there was absolutely no evidence placed before me of mala fides. Thus, the Plaintiff’s Charter claims as well as his allegation of malicious prosecution must fail.
75The Plaintiff’s claim is, therefore, dismissed with costs to the Defendants to be agreed upon or assessed.
30In summary, Justice Chapnik found as a fact that Constable Kirkland believed Kasonde when he stated that he was struck in the face by Forrest at least once. Constable Kirkland explained in detail why he believed what Kasonde told him after he reviewed all of the evidence and information he had obtained from the witnesses. He was prepared to acknowledge that Forrest may have intruded in the fight to break it up but he also concluded that Forrest punched Kasonde in the face during the altercation as alleged by Kasonde.
31Counsel for the appellant submits there are three grounds upon which the appeal should be allowed:
(1) Whether the trial judge committed an overriding and palpable error in the assessment of the case as a whole;
(2) Whether the trial judge committed an error of law in her application of the legal principles to the case; and
(3) Whether the trial judge properly applied the law surrounding the award of damages under s. 24(1) of the Charter and the issue of whether there was a Charter violation.
- Palpable and Overriding Error
32The trial judge made findings of fact and explained in considerable detail why and how she arrived at her findings.
33We conclude that she did not make overriding and palpable errors as alleged by Forrest. Her findings of fact are supported by the evidence. She pointed out that police are required to weigh evidence to some extent in the course of an investigation but they are not required to evaluate evidence according to legal standards or to make legal judgments; see Hill v. Hamilton Wentworth Regional Police 2007 SCC 41, [2007] 3 S.C.R. 129; Chartier v. A.G. of Quebec 1979 17 (SCC), [1979] 2 S.C.R. 474.
34The findings of fact of the trial judge are entitled to deference and should not be reversed unless it can be established the trial judge made a palpable and overriding error. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference of facts, then it is only where the inference drawing process itself is palpably in error that an appellant court can interfere with the factual conclusion. When the issue on appeal involves a trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error, or it is clearly wrong, unreasonable or not supported by the evidence: see Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. In Waxman v. Waxman 2004 39040 (ON CA), [2004] O.J. No. 1765 (C.A.) the Ontario Court of Appeal explained that the “palpable and overriding” standard addresses both the nature of the factual error and its impact upon the result. A palpable error is one that is obvious, plain to see or clear. Examples of palpable factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of facts drawn from primary facts that are the result of speculation rather than inference. An overriding error is an error that is significant to vitiate the challenged finding of fact.
35We agree with counsel for the respondents who submitted that the appellant asks the court to adopt his interpretation of the evidence over that of the trial judge. The appellant essentially picks and chooses particular phrases from certain testimony and documents, applies his own interpretation of what they should mean and then asserts that the judge was incorrect.
36As counsel for the respondents submitted, the appellant’s argument that there existed “overwhelming evidence” of eight witnesses that “exonerated” the appellant and which constituted “overwhelming evidence … of criminal non involvement” overlooks the evidence that at least four of the eight witnesses referred to did not see the entire altercation and were therefore in no position to “exonerate” the appellant.
37Counsel for the respondents also submits that the appellant failed to demonstrate how the trial judge committed a palpable and overriding error by accepting that Constable Kirkland, upon completing his investigation, believed the Kasonde statement that the appellant struck him. The officer gave evidence of his belief that the victim was telling the truth. The assistant Crown attorney supported the officer’s belief but concluded there was no reasonable prospect of conviction. We agree that the trial judge was entitled to accept the evidence of Constable Kirkland and she did so. Kirkland fully explained his reasons for believing Kasonde which were accepted by the trial judge.
38Thus, we conclude that the appellant has failed to establish that the trial judge made a palpable and overriding error.
- Errors of Law
39The appellant argues that the trial judge misapplied the law in three ways, in that she:
(a) may have dismissed the case because she concluded that Franklin v. Toronto Police Services Board et al [2008] O.J. No. 5237 that a claim in malicious prosecution could only be brought against a Crown counsel but not against a police officer. This is what the appellant referred to as the “Franklin principle”.
(b) misdirected herself by “creating a very high threshold to find malice” because she relied on the law of malicious prosecution set out by the Supreme Court of Canada in Miazga v. Kvello Estate 2009 SCC 51, [2009] 3 S.C.R. 339 which dealt with Crown attorneys rather than some lesser threshold for police; and
(c) failing to find a lack of reasonable and probable grounds based on the facts of the case which prevented her from inferring “malice in order to satisfy the fourth element of the tort”.
40Counsel for the respondents argues that the appellant’s arguments are based on a misreading of the reasons for the decision in these cases. He erroneously argues that there is a different test for the tort of malicious prosecution for Crown attorneys and for police and that if there was an absence of reasonable and probable grounds for laying the charge, which was not the case, this permitted the trial judge to infer malice.
41We agree that there is no such thing as the “Franklin principle”. The appellant has misconstrued the trial judge’s reference to the Franklin v. Toronto Police Services Board case. No where does the trial judge state that police officers cannot be subject to claims of malicious prosecution. Rather, she cites Franklin with respect to when a police officer can no longer be considered to be in charge of or directing a prosecution.
42We also agree the appellant’s argument that the case law in malicious prosecution involving Crown attorneys is not applicable in the case of police officers is incorrect. There is a single tort with the elements as set out in Nelles 1989 77 (SCC), [1989] S.C.J. No. 86 and reconfirmed recently by the Supreme Court in Miazga v. Kvello Estate (supra). Justice Charron clearly states that the elements of the four parts test for malicious prosecution are identical no matter the parties. These elements must be satisfied by any plaintiff in a claim of malicious prosecution. Where there is no malice, there is no basis for a malicious prosecution claim.
43The appellant argues that by relying on the Supreme Court decision in Miazga, the trial judge “misdirected herself by creating a very high threshold to find malice” because that was a standard only applicable to a Crown attorney. This is not correct. The high standard of proof for malice is equally applicable to police officers.
44We conclude that the trial judge applied the law regarding malicious prosecution correctly. She properly concluded that there was no evidence placed before her of mala fides.
45The appellant appears to argue that the trial judge should have, but did not, “infer” malice from a “total absence of reasonable grounds”. The onus is on the plaintiff to establish the absence of reasonable and probable grounds. In Cellini v. Ontario (Attorney General) [2000] O.J. 180 the trial judge stated as follows:
The onus placed on a plaintiff to establish malicious prosecution may be satisfied by proving that the defendant had before him facts pointing so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt.
46There was ample evidence to support the trial judge’s finding that Constable Kirkland had reasonable and probable grounds to lay the charge. Although there may be cases where it is proper to infer malice in the absence of reasonable and probable cause to commence or to continue a prosecution, that is not this case. Constable Kirkland, in our opinion and in the opinion of the trial judge, had reasonable and probable grounds to lay the charge against Forrest. The trial judge’s findings are set forth in her very thorough reasons for judgment.
47Police are not obligated to weigh and determine the validity of various versions of events and render judgment before arresting or charging the accused. It is not the role of the police to investigate and decide innocence or guilt or whether the essential elements of the offence are made out. That is the role of the courts. Police are required to weigh evidence to some extent in the course of an investigation but they are not required to evaluate evidence according to legal standards or to make legal judgments. That is the task of prosecutors, defence attorneys and judges; see Lloyd v. Toronto (City) Police Services Board [203] O.J. No. 83; Hill v. Hamilton - Wentworth Regional Police Services Board 2007 SCC 41, [2007] 3 S.C.R. 129.
48The trial judge in this case was alive to the law with respect to reasonable and probable grounds and directed herself correctly in that regard, including making reference to the Supreme Court decisions in Hill v. Hamilton – Wentworth Regional Police Services Board; R. v. Storrey 1990 125 (SCC), 53 C.C.C. (3d) 316 and the Ontario Superior Court decision in Cellini (supra).
49Accordingly, in our view, there is no basis for the appellant’s argument that “there is a total absence of reasonable grounds” from which an inference of malice can be drawn. The trial judge did not misdirect herself or misapply the law concerning reasonable grounds.
- Whether the trial judge properly applied the law surrounding the award of damages under s. 24(1) of the Charter and the issue of whether there was a Charter violation
50On July 23, 2010, some seven weeks after Justice Chapnik released her judgment, the Supreme Court of Canada in Vancouver (City) v. Ward 2010 SCC 27, [2010] 2 S.C.R. 28 dealt with the question of when damages may be awarded under s. 24(1) of the Charter and what the amount of such damages should be. The judgment of the court was delivered by Chief Justice McLachlin. She commented that “although the Charter is 28 years old, authority on this question is sparse, inviting a comprehensive analysis of the object of damages for Charter breaches and the considerations that guide their award”.
51The appellant argues that in light of the Supreme Court of Canada decision in Vancouver v. Ward 2010 SCC 27, [2010] 2 S.C.R. 28, the conclusion of the trial judge that mala fides is a prerequisite to an award of damages under the Charter is simply wrong. With respect, counsel for Forrest is in error. Chief Justice McLachlin did not state that mala fides was not required to prove a breach of a Charter right. Rather, she said only that the plaintiff must move a Charter breach as the first of four steps required to succeed in a claim for s. 24(1) damages.
52The trial judge stated in her reasons for judgment that the Charter claim, along with the malicious prosecution claim, must fail because there was absolutely no evidence placed before her of mala fides. She referred to the judgment of the New Brunswick Court of Appeal in McGillivray v. New Brunswick (1994) 1994 4465 (NB CA), 116 D.L.R. (4th) 104 which held, in essence, that as long as the investigation and prosecution was done with an absence of mala fides, there can be no recovery. In the McGillivray case the court stated the following:
The enforcement of the criminal law is one of the most important aspects of the maintenance of law and order in a free society. So long as the carrying out of duties in relation to the investigation and prosecution of persons in pursuit of the aims of the justice system is done within jurisdiction and with an absence of mala fides, there can be no recovery.
See also Ferri v. Ontario (Attorney General) 2007 ONCA 79, [2007] O.J. 397 (C.A.).
53We agree with counsel for the respondents that the law with respect to the tort of malicious prosecution was not altered by the Supreme Court decision in Ward. Unlike in Ward, the trial judge had no basis on which to find a Charter infringement. Thus, in order to establish a claim against a police officer for a breach of Charter rights, mala fides must be shown.
54Justice McLachlin, speaking for the unanimous court, stated as follows:
I conclude that damages may be awarded for a Charter breach under s. 24(1) when appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and an appropriate remedy having regard to whether they would fulfil one or more of the related functions of compensation, vindication of the right and/or deterrence of future breaches. Once the claimant has established that damages are functionally justified, the burden shifts to the state (Step 3) to show if it can that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. If the state fails to negate s. 24(1) damages, then the inquiry moves to the final step (4) assessment of the appropriate amount of damages.
55Chief Justice McLachlin cautioned that although:
S. 24(1) is broad enough to include the remedy of damages for Charter breach, it must “always be born in mind that these are not private lot damages” but the distinct remedy of constitutional damages... an action for public law damages is not a private law action in the nature of a tort claim for which the state is vicariously liable, but [a distinct] public law action directly against the state for which the state is primarily liable... an action for public law damages – including constitutional damages – lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action. However, the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state.
She pointed out that the existence of a potential claim in tort does not bar a claimant from claiming damages under the Charter. Tort law and the Charter are distinct legal avenues. However, a concurrent action in tort, or other private law claim, bars s. 24(1) damages if the result would be double compensation, Simpson v. The Attorney General [1994] 3 N.Z.L.R. 667 (C.A.) at p. 678.
56With respect to damages, she stressed that any claim for compensatory damages must be supported by evidence of the loss suffered.
To be “appropriate and just,” an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of compensation, upholding Charter values and deterring future breaches. The private law measure of damages for similar wrongs will often be a useful guide.
She added that:
In assessing s. 24(1) damages, the court must focus on the breach of Charter rights as an independent wrong, worthy of compensation in its own right. At the same time, damages under s. 24(1) should not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue.
She concluded that:
“to sum up, the amount of damages must reflect what is required to functionally serve the objects of compensation, vindication of the right and deterrence of future breaches, insofar as they are engaged in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state conduct the award must be appropriate and just from the prospective of the claimant and the state.
57We agree with the trial judge that mala fides must be shown by a plaintiff in order to establish the breach of a right under s. 7 of the Charter.
58In any event, it is our view that the plaintiff has made a claim for damages under s. 24(1) of the Charter against the wrong state. It is quite clear that the plaintiff Forrest was under the jurisdiction of Correctional Service of Canada. The Federal government has the duty and responsibility of dealing with an inmate of a Federal prison. In this case, the Province of Ontario had very little involvement with Forrest. He was serving an 18 year sentence commencing in 1995. It will be completed in the year 2013. He was charged with assault causing bodily harm, along with his co-accused Prasad. It was the warden at Warkworth Institution that transferred him to Kingston Penitentiary on November 26, 2004. Constable Kirkland and the Ontario Provincial Police had no involvement in the decision to transfer Forrest to the maximum security penitentiary. Forrest was required to appear in Ontario Court in Brighton, Ontario on the charge of assault causing bodily harm. He was temporarily transferred to a provincial institution in order to be brought when necessary to Ontario Court in Brighton. He had appearances on March 2, April 6 and May 9, 2005 and on June 22, 2005 when the charge against him was withdrawn.
59A claim for s. 24(1) damages is a claim for public law damages as opposed to private law damages such as a claim for the tort of malicious prosecution for which the state is vicariously liable. The public law action is brought directly against the state for which the state is primarily liable. The nature of the remedy is to require the state to compensate an individual for breaches of the individual’s constitutional rights. As pointed out by Chief Justice McLachlin, an action for public law damages – including constitutional damages – lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action.
60In this case, in our opinion, the state is the Government of Canada and not Her Majesty the Queen in Right of the Province of Ontario.
61In any event, we are satisfied that on the evidence there was no basis for concluding that Constable Kirkland was fuelled or motivated by a primary improper purpose other than the carrying of the law into effect when he charged Forrest with assault causing bodily harm. Also, we are satisfied that, as the law stands, to prove a breach of a Charter right under s. 7 of the Charter, there must be mala fides shown.
62In our opinion, the liability for a breach under s. 7 of the Charter requires wilfulness or mala fides in the creation of a risk or course of conduct that leads to damages. Proof of simple negligence is not sufficient for an award of damages in an action under the Charter. Bad faith is essential to establish the Charter breach: McGillivray v. New Brunswick (1994) 1994 4465 (NB CA), 116 D.L.R. (4th) 104 and Ferri v. Ontario (Attorney General) 2007 ONCA 79, [2007] O.J. 397.
Damages
63After Forrest was charged with assaulting Robert Kasonde and causing him bodily harm, he obtained a counsel from Kingston to represent him. He was in custody in segregation at Kingston Penitentiary but eventually was transferred to a provincial jail for court appearances in the Ontario Court in Brighton. His first appearance was March 2, 2005. There were additional attendances on April 6 and May 9, 2005. On June 22, 2005, the charge was withdrawn against Forrest and also against his co-accused Prasad.
64Forrest was returned to Kingston Penitentiary and placed in the general population. On August 25, 2005, he allegedly was involved in a serious assault with other inmates. Two inmates were fighting. One inmate was attempting to defend himself against a knife-wielding assailant. Once the inmate began to successfully defend himself, it is alleged that Forrest, armed with a knife, entered the fight. It is further alleged that he stabbed the victim who managed to flee. Forrest is said to have pursued him but the victim managed to lock himself in his cell which prevented any additional physical impact.
65The records further show that the authorities were concerned about the hostility demonstrated by Forrest during his incarceration since 1995. It was felt he had a well established pattern of extreme violence and problematic behaviour which generated forty offence reports while incarcerated. It was recommended he should be transferred to the Special Handling Unit in Quebec for assessment. He was transferred to a maximum security facility in Port Cartier in Quebec. Subsequently, it was concluded he was a risk to community and, in July 2006, no parole was recommended. On December 11, 2008, he was declared a vexatious litigant by the Federal Court of Appeal which prohibited him from commencing action in the Federal court without permission.
66In his claim for damages, he suggested that the incident at Warkworth Institution on November 26, 2004 and the occurrence at Kingston Penitentiary on August 25, 2005 were the reasons why he was transferred from Kingston Penitentiary to the Special Handling Unit in Quebec. However, it is clear he had a history of violent behaviour during his extensive period of incarceration which became, in the view of the authorities, much more serious after the event on August 25, 2005 when he was in the open population. The victim inmate suffered punctures and a collapsed lung. There is a video which shows that Forrest was seen with a knife in his hand but he was not seen assaulting the victim. He was declared a dangerous inmate. Authorities concluded that there was a possibility of further offences if he was released from custody and the parole board ordered that he finish his sentence. His release date is in the year 2013 unless the parole board decision is overturned.
67Forrest alleged in his claim for damages that when he was transferred from Kingston Penitentiary to the provincial jail he lost privileges, lost his chances for parole and had to endure substantially stricter rules and behaviour codes inherent in the Federal and provincial systems. He claims that the laying of the charge against him for the November 26th incident was a significant factor in the progression of transfers and other indignities for which he was entitled to compensation. In our opinion, the records of the Correctional Services Canada indicate a pattern of violent and problematic behaviour over the years and the incident on August 25, 2005 in Kingston Penitentiary finally resulted in a recommendation that Forrest should be transferred to the Special Handling Unit in Quebec for assessment. Eventually, he was transferred to a maximum security institution in Port Cartier, Quebec.
68It is our opinion that, in any event, his claim for damages would not succeed having regard to all of the circumstances.
Negligent Police Investigation
69In the final paragraph of his factum, counsel for the appellant says that even if the trial judge found there was no malice, the question of the overall conduct of Constable Kirkland in terms of negligent investigation was open to her. He submits that Kirkland’s treatment of the evidence raises the question of a negligent investigation which in itself would satisfy the conclusion that under s. 7 of the Charter a breach of principles of fundamental justice has occurred. Obviously, it is submitted, the trial judge did not put her mind to this aspect of the case.
70In Hill v. Hamilton-Wentworth Regional Police Service 2007 SCC 41, [2007] 3 S.C.R. 129, the Supreme Court of Canada held the Ontario Court of Appeal rightly concluded that the tort of negligent police investigation is available in Canadian law, (2005), 2005 34230 (ON CA), 76 O.R. (3d) 481.
71The respondents submit there is no merit in this argument that the trial judge should have somehow directed herself to the tort of negligent police investigation as the basis for a damages award. It was neither pleaded nor the subject of evidence at trial. We agree.
72In the case at bar, Forrest did not plead and claim damages for negligent investigation by Constable Kirkland. In our view, it would be wrong and unfair to expect the trial judge to have dealt with the tort of negligent police investigation when it was not a basis for a claim for damages in the pleadings or in the evidence at trial.
Disposition
73In the result, the appeal is dismissed. The parties agreed that the successful party should have costs fixed in the amount of $5,000.00. Therefore, the appellant shall pay to the respondents costs in the total amount of $5,000.00 inclusive.
R.G. Thomas, J.
Cunningham, A.C. J.
Ferrier, J.
RELEASED:
CITATION: Forrest v. The Queen, 2012 ONSC 429
COURT FILE NO.: 316/10
DATE: 20120120
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
CUNNINGHAM A.C.J., R.G. THOMAS and FERRIER JJ.
RE: IRVINE FORREST
Appellant (Plaintiff)
P.C. KIRKLAND BADGE NO. 8646 HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Respondents (Defendants)
COUNSEL: Osborne G. Barnwell, for the Appellant (Plaintiff) for the Crown
Robert Ratcliffe and Jim Smith, for the Respondents (Defendants)
HEARD: June 28, 2011
REASONS FOR JUDGMENT
RELEASED: January 20, 2012
