CITATION: Charney v. Waterloo Region Police Services Board, 2012 ONSC 4655

COURT FILE NO.: DC-210

DATE: 2012-08-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Davin Charney and Mark Corbiere

Plaintiffs/Appellants

– and –

The Waterloo Region Police Services Board, and Cst. T.C. Natyshak-Cole and Cst. T. Evans

Defendants/Respondents

C. Parry, for the Plaintiff/Appellant Charney

B. Smart, for the Plaintiff/Appellant Corbiere

F. Mendes, for the Defendants/Respondents

HEARD: February 24, 2012

DECISION ON APPEAL

[1] Davin Charney and Mark Corbiere sued in small claims court claiming damages arising from their detention and search by the respondent police officers. The claim was dismissed with written reasons dated May 3, 2010. They appeal that decision.

[2] The trial judge provisionally assessed damages at $500 for each plaintiff. The damage assessment was not appealed.

[3] For the reasons that follow, the appeal is allowed and the sum of $500 damages is awarded to each appellant.

Synopsis:

[4] Police Constable Natyshak-Cole was called to investigate a reported break-in. At the scene, she was directed to an individual named Adrian Cousins as a person who might have been involved. During her questioning of Mr. Cousins outside the premises, the appellants walked past. Brief words were exchanged between Mr. Cousins and Mr. Corbiere. Police Constable Evans arrived as a backup officer. He searched and detained Mr. Corbiere. After concluding her discussion with Mr. Cousins, Constable Natyshak-Cole searched and detained Mr. Charney. Both Mr. Corbiere and Mr. Charney were released once the officers were satisfied that there was no reason for continued detention.

Issues on the Appeal:

[5] Did the trial judge err in finding:

a. that reasonable grounds existed to detain Mr. Corbiere and Mr. Charney for investigative purposes?

b. that Mr. Corbiere and Mr. Charney were not under arrest?

c. that the search of Mr. Corbiere and Mr. Charney was reasonable?

Issue #1: Were There Reasonable Grounds for Investigative Detention?

The Facts:

[6] At about noon on August 2, 2008, Constable Natyshak-Cole was on general patrol in a marked police cruiser when she was dispatched to investigate a reported break and enter. In the course of the investigation, she was informed that three people had been involved in the offense during the early morning hours of that same day. One of the three was described as a white male, blonde, 5'6" tall, with short hair, a peach fuzz mustache, and in his late teens to early 20s. The second was described as an Hispanic male with brown shoulder length hair and 5'6" to 5'8" tall. There was no description of the third suspect.

[7] The Constable was directed to a person across the street from the premises as possibly one of the three suspects. This was Adrian Cousins. She engaged him in conversation. Several individuals were observing and commenting on the proceedings from the front porch of the property adjacent to the scene of the crime. As a result, and because of her past experiences in that neighborhood, she called for backup.

[8] Constable Natyshak-Cole positioned herself on the street beside the sidewalk allowing a safe distance between her and Mr. Cousins who was on the sidewalk. Mr. Corbiere and Mr. Charney approached, walking on the sidewalk. As they walked past, Mr. Corbiere said something to Mr. Cousins. Mr. Corbiere and Mr. Charney then crossed the street to join the group on the porch.

[9] On the arrival of Constable Evans as backup, he was directed by Constable Natyshak-Cole to contact Mr. Corbiere. Constable Evans requested that Mr. Corbiere identify himself. He refused and was then handcuffed. His person and bags were searched for weapons and identification. He was placed into the rear of the police cruiser. After a search for outstanding warrants, Constable Evans released Mr. Corbiere unconditionally. He was detained for a total of 10 to 15 minutes. There was no evidence of questioning about his possible role in the break-in.

[10] While Constable Evans interacted with Mr. Corbiere, Mr. Charney approached. He was directed to maintain a proper distance and did so.

[11] Once she completed the questioning of Mr. Cousins, Constable Natyshak-Cole asked Mr. Charney to provide identification. He refused. He was then handcuffed, his bags and wallet were searched and he was placed into the rear of her police cruiser. After a search for outstanding warrants, he was released unconditionally. As with Mr. Corbiere, Mr. Charney was detained for 10 to 15 minutes, and there was no evidence of inquiry into his possible involvement in the break-in.

Findings of the Trial Judge:

[12] The trial judge found that it was reasonably necessary for the police to detain Mr. Corbiere and Mr. Charney based on “an objective view of the totality of the circumstances,” relying on the following facts:

a. Mr. Corbiere and Mr. Charney observed the presence of a police cruiser and an officer speaking with Mr. Cousins but they nevertheless elected to interrupt the investigation by walking closely passed the officer and Mr. Cousins.

b. Mr. Corbiere spoke briefly to Mr. Cousins as he passed, but did so quietly so as to ensure that Constable Natyshak-Cole would not overhear the exchange.

c. Mr. Corbiere partially matched the description of one of the suspects in that he had long brown hair and dark skin which the officer viewed as consistent with the description of someone who was Hispanic.[^1]

d. Mr. Charney’s proximity to Mr. Corbiere, Mr. Cousins and the location of the crime made him a candidate for the undescribed third suspect.

e. The initial contact between the officer and Mr. Cousins, Mr. Corbiere and Mr. Charney occurred directly across the street from the scene of the crime.

f. Mr. Charney and Mr.Corbiere joined the three or four people on the porch at the premises next door to the scene of the crime. Those people had been yelling offensive comments at Constable Natyshak-Cole during her questioning of Mr. Cousins.

g. Neither Mr. Charney nor Mr. Corbiere agreed to provide identification when requested to do so.

h. Mr. Charney left the porch and approached Constable Evans during the officer’s questioning of Mr. Corbiere when it appeared to the officer that there was no good reason for him to do so.

[13] The appellants dispute the finding of fact made by the trial judge that Mr. Charney walked between Constable Natyshak-Cole and Mr. Cousins. The trial judge is entitled to deference as to findings of fact. The evidence of Mr. Charney is that he did not leave the sidewalk when passing Mr. Cousins and the officer. Mr. Corbiere said he walked past them on the sidewalk and that there was enough space to pass without interrupting. There is no dispute that the two could have, but chose not to cross the street to their destination before reaching the officer and Mr. Cousins.

[14] The significance to the trial judge of the position of Mr. Corbiere and Mr. Charney as they passed the officer and Mr. Cousins was their undisputed proximity to Mr. Cousins, the comment made to Mr. Corbiere, and the fact that they did not detour. I do not find that the inference drawn by the trial judge that Mr. Charney walked between the officer and Mr. Cousins to be significant nor is it a palpable and overriding error.

The Applicable Law:

[15] The common law power of police officers to detain for investigative purposes was recognized by the Supreme Court of Canada in R. v. Mann[^2]. This power is distinct from the statutory power to arrest without a warrant found in the Criminal Code.

[16] The trial judge correctly identified that the onus was on the police services board and the officers to prove on the balance of probabilities that any investigative detention was reasonably necessary for the officers to perform their duty. That proof must be based on an objective view of all the circumstances, giving the officer reason to suspect that there was a clear connection between the person being detained and a recent criminal offense. Absent such individualized suspicion, a detention is not justified.[^3]

[17] In all cases, caution is required to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy while enabling the police to do what is reasonably necessary to perform their duties in protecting the public.[^4]

Analysis and Conclusion:

[18] In applying the law to the facts as he found them, the trial judge made a finding of mixed fact and law in concluding that the detention for investigation was reasonably necessary.

[19] In summary of the findings set out above, as to Mr. Charney: he was a person who walked past the police officer in the midst of her conversation with Mr. Cousins. His description did not match anyone involved in the break and enter. He was walking with Mr. Corbiere near the location of the break-in which had occurred many hours before. He attended with others who were making offensive comments to the police, approached Constable Evans and ultimately refused to identify himself. It is hard to see how this constellation of facts created a clear connection between Mr. Charney and the break and enter offense sufficient to justify a detention.

[20] As to Mr. Corbiere, there was a brief comment to Mr. Cousins in passing but no suggestion that the comment had anything to do with the crime or the investigation. There was an incomplete match of the description provided to the police officer. As with Mr. Charney, he walked past the officer during her questioning, and associated with the others on the porch adjacent to the crime scene. Based on an objective view of the totality of those circumstances, it is difficult to understand how those facts justify the conclusion that Mr. Corbiere was clearly connected to the break and enter offense sufficient to justify a detention.

[21] In my view, the trial judge committed a palpable and overriding error in applying the law to the facts as he found them to justify the detention of the appellants. The error was palpable in that the conclusion was not consistent with a reasonable application of the facts to the law. It was overriding in that it went to the root of the trial judge's conclusion on this threshold issue.

[22] Since I have concluded that the trial judge erred in finding that the detention was justified, the detention of both appellants was wrongful and therefore justifies the damages provisionally awarded.

Issue #2: Were Mr. Charney and Mr. Corbiere Arrested?

[23] As a result of my determination set out above, it is not necessary to answer the question of whether the appellants were arrested rather than detained for investigation. However in the circumstances, I consider it appropriate to comment on this issue given the modest amount of relevant case law.

[24] The trial judge found that while there was a detention, it did not amount to an arrest. That conclusion was significant since if there was a lawful arrest, the respondents would have had to prove on a balance of probabilities that the arresting officers had reasonable and probable grounds to believe (for example) that the person had committed an indictable offense. That is a more onerous requirement then the “reasonably necessary” test for investigative detention. The trial judge found that no reasonable and probable grounds were established and that if there was an arrest, it was unlawful.

[25] It is clear that the appellants were compelled to, and did give up their liberty to the police officers. They were handcuffed, searched and placed in a police cruiser. The actions were intrusive on their privacy as well as their liberty.

[26] The fact that both appellants were released after a short period of time and minimal investigation is more consistent with the concept of investigative detention than with arrest, in that the latter often connotes an ongoing period during which individuals are taken into custody and held pending interrogation or further investigation.

[27] Constable Natyshak-Cole appears to have conflated the terms “arrest” and “detention for investigation” in advising the Mr. Charney that he was being “arrested for investigative detention.” She testified that her words were a slip of the tongue. In his testimony, Constable Evans indicated a more precise use of language in advising Mr. Corbiere that he was “under investigative detention.” However, in his notes, which were made exhibits, he indicated that Mr. Corbiere was placed under arrest for investigative detention, disclosing the same lack of clarity in terms admitted by Constable Natyshak-Cole.

[28] In my view, the statements by the officers referring to arrest for investigative detention are no more determinative of the individuals’ status than would have been the case if in another situation an officer had denied an arrest but in all other circumstances conducted him or herself as if an arrest had occurred. Neither the words used nor the intention of the officers alone is a determining factor.

[29] The status of the appellants is ultimately a matter for objective determination based on all the facts. The common law power to detain as articulated by the Supreme Court of Canada in R. v. Mann[^5] cannot be allowed to be a de facto arrest. Put another way, investigative detention cannot be used to increase police power at the expense of the public as a less circumscribed alternative to arrest.

[30] If the facts in this situation are weighed objectively, the only indicator of investigative detention is the brief period of the interaction. In all other respects, the appellants were treated as if they were under arrest.

[31] I do not find the case of Gigliotti v. Fantino[^6] to be helpful in determining whether there was an investigative detention or arrest in this case. In Gigliotti, an arrest was conceded and the issue was whether the defendant was liable for negligence, false arrest and unlawful confinement in the circumstances. As a result, the court in that case was not called upon to determine whether an arrest had occurred.

[32] Here, there were words of arrest and a deprivation of liberty by handcuffing and placing the appellants into the police cruisers. Their persons and belongings were searched. Given all those factors that indicate arrest, the fact that they were released after a short time does not reasonably change the character of the police actions. The rights and remedies under the Criminal Code and the Charter that serve as protection to the public on arrest should be available under circumstances such as these.

[33] As with my conclusion on the previous issue, I consider that the trial judge committed a palpable and overriding error in applying the facts as he found them to the applicable law, concluding that there was an investigative detention rather than an arrest.

Issue #3: Was the Search Reasonable?

[34] In the case of both Mr. Charney and Mr. Corbiere, the officers conducted a pat-down search of their person and a search of their bags. In addition, Mr. Charney's wallet was searched.

[35] The trial judge accepted the testimony of both officers that the searches were for weapons. He recognized that a search incidental to investigative detention is not automatically justified, and examined the evidence of the officers. He identified that the officers had safety concerns including the presence of both Mr. Charney and Mr. Corbiere (presumably including the former’s approach to the latter during the police contact) and the others present on the porch of the neighbouring property who were making offensive remarks. He noted that according to Constable Natyshak-Cole’s evidence, her decision to call for backup was partially prompted by her previous experience in that particular neighbourhood. As result, the trial judge concluded that a pat down search, search of bags, and of Mr. Charney's wallet were reasonable and justified as a search for weapons.

[36] The Supreme Court decision in R. v. Mann[^7] makes it clear that the search power incidental to an investigative detention does not exist as a matter of course, but arises upon the officer’s belief on reasonable grounds that his or her own safety or the safety of others is at risk. In my view, the conclusions drawn by the trial judge from the evidence were reasonable on the facts and do not constitute a reviewable error.

Summary:

[37] For the reasons set out above, the trial judge did err in finding that reasonable grounds existed to detain Mr. Corbiere and Mr. Charney for investigative purposes, and as a result, the appeal is allowed and each of the appellants is awarded the sum of $500 damages for false arrest and imprisonment. Further, the trial judge erred by finding that in all the circumstances the appellants were not placed under arrest. He did not err in holding that the search of each of the appellants was reasonable.

Costs

[38] If the parties are unable to resolve the issue of costs of this appeal consensually, I am prepared to receive written submissions according to the following timetable: the appellants are to provide to the respondents there bills of costs together with brief written submissions within two weeks of this date. The respondents are then to provide to the appellants their submissions within a further two weeks. The submissions of the appellants and the respondents are then to be filed with the court together with any reply submissions by the appellants by no later than five weeks from this date.

Reid J.

Released: August 13, 2012

CITATION: Charney v. Waterloo Region Police Services Board, 2012 ONSC 4655

COURT FILE NO.: DC-210

DATE: 2012-08-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Davin Charney and Mark Corbiere

Plaintiffs/Appellants

– and –

The Waterloo Region Police Services Board, and Cst. T.C. Natyshak-Cole and Cst. T. Evans

Defendants/Respondents

DECISION ON APPEAL

Reid J.

Released: August 13, 2012

[^1]: In fact, Mr. Corbiere was of First Nations heritage and approximately 6 feet tall.

[^2]: 2004 SCC 52, [2004] 3 S.C.R. 59

[^3]: Ibid. at par. 34

[^4]: R. v. Clayton, 2007 SCC 32, [2007] S.C.J. No. 32, at para. 26.

[^5]: Supra., at par. 35

[^6]: (2010) ONSC 852 (Ont. S.C.J.)

[^7]: Supra., par. 40