minicounsel

CITATION: Drury v. Cornish, 2020 ONSC 1173

COURT FILE NO.: DC-18-031-0000

DATE: 2020 02 21

Darrell Kloeze and Jennifer Lepan, Counsel for the Appellants

Defendants (Appellants)

- and -

Plaintiff (Respondent)

Self Represented, for the Respondent

HEARD: July 8, 2019

[On appeal from a Decision of Deputy Judge Thomson of the Small Claims Court at Walkerton delivered April 5, 2018]

1This is an appeal from the decision of Deputy Judge Thomson of the Walkerton Small Claims Court dated April 5, 2018. Deputy Judge Thomson found Donald Drury, Jennifer Wilson and the Province of Ontario (hereinafter collectively referred to as the “Appellants”) liable for negligent investigation and awarded Philip Cornish (the “Respondent”) $25,000.00 in damages.

2For reasons that follow, I will allow the appeal and dismiss the action.

FACTS

3Mr. Cornish is a criminal defence lawyer. Donald Drury and Jennifer Wilson are police officers employed by the Ontario Provincial Police (“OPP”). Mr. Cornish and Karen Blanchard are married, but became estranged. On August 8, 2013, Ms. Blanchard complained to the Huron County OPP that Mr. Cornish was communicating with her repeatedly such that she feared for her safety. She informed the police that she was bound by a peace bond not to communicate with Mr. Cornish. She said Mr. Cornish was communicating with her despite letters from her lawyer asking him not to do so.

4Mr. Cornish is a criminal defence lawyer in Huron County. Therefore, Huron County OPP requested the Lambton OPP Detachment to take over the case. Lambton OPP Detachment assigned Detective Constable Drury and Detective Constable Wilson to the case.

5On August 8, 2013 at 8:18 p.m., Detective Constable Wilson took a sworn video and audiotaped statement from Ms. Blanchard. Detective Constable Drury observed from another room. Ms. Blanchard told the police the following:

(a) Despite multiple oral and written communications from her lawyer to Mr. Cornish requesting that he stop communicating with her, Mr. Cornish continued to do so.

(b) As a result of a previous altercation, she was the subject of a peace bond, which required her not to communicate with Mr. Cornish. In the past, Mr. Cornish had reported her to the police for communicating with him.

(c) On June 3, 2013, Mr. Cornish went to her workplace, the Clinton Public Hospital, looking for her. She refused to speak to him. She was scared he would be outside waiting for her after she finished work.

(d) She feared for her safety and had began to carry a baseball bat in her van for protection. As a precaution, she and a friend had agreed that she would send him a text when she left work and when she arrived home safely. She said that during the night shift, she would peek around corners of the hospital just in case Mr. Cornish was there.

(e) On August 7, 2013, Mr. Cornish went to the hospital looking for her. Later that evening, Mr. Cornish called the hospital and asked the switchboard operator to page her. She was not at work that evening. Mr. Cornish asked for her work schedule and became upset when the switchboard operator refused to give it to him. Ms. Blanchard said Mr. Cornish’s behaviour had to stop. She did not want to lose her job over it.

6Ms. Blanchard gave Detective Constable Wilson some letters her lawyer had written to Mr. Cornish asking him to stop communicating with her. She played a voice recording of a message she received from a co-worker advising her of Mr. Cornish’s visit to the hospital on August 7, 2013. In the message, the co-worker warned her that Mr. Cornish was upset when he could not obtain her work schedule.

7At the conclusion of the interview, Detective Constable Wilson completed a Domestic Violence Supplementary Report and noted the following:

(a) Mr. Cornish’s behaviour was progressively getting worse.

(b) The relationship ended on June 24, 2012 when Ms. Blanchard was charged with assault (both officers were aware that Mr. Cornish was the complainant).

(d) Ms. Blanchard believed that it was strange for Mr. Cornish to continue to contact her despite the terms of the peace bond. She also felt that it was bizarre for him to believe that there was any prospect of reconciliation.

(e) Ms. Blanchard did not allege any threats of violence or physical harm. However, she said Mr. Cornish had threatened her with litigation.

8Based on all of the above, Detective Constables Drury and Wilson believed that they had reasonable and probable grounds to arrest Mr. Cornish. At 5:39 p.m. on August 8, 2013, Detective Constable Drury called Mr. Cornish and told him that he would be charged with criminal harassment and that he should turn himself in. Mr. Cornish stated that he would go to the detachment in a couple of hours. Mr. Cornish then played a previously scheduled game of golf.

9At 8:50 p.m., Mr. Cornish called Detective Constable Drury and advised that he was turning himself in. At 9:25 p.m., Mr. Cornish arrived at the police station with a lawyer and friend, John Myers. Mr. Cornish was arrested and charged with one count of criminal harassment, contrary to s. 264(2)(b) of the Criminal Code, advised of his rights to counsel, and given the appropriate cautions. Mr. Cornish declined to speak to a lawyer and did not provide a statement. He was released on a Promise to Appear which included a condition not to communicate with Ms. Blanchard.

10Thereafter, the police officers spoke to a number of people. Switchboard operator Shirley Archambault confirmed Mr. Cornish’s phone call and visit to the hospital. Brent Colling confirmed he was the friend who Ms. Blanchard was to text upon leaving work and also upon arriving home. Mr. Colling said he feared for Ms. Blanchard’s safety. Ms. Blanchard’s lawyer, Ms. St. James, confirmed her communications with Mr. Cornish and produced copies of her written communications with him.

11Mr. Cornish’s criminal trial took place on November 23, 2013. At the end of the Crown’s case, the defence brought a motion for a directed verdict. Justice Douglas granted the defence motion on the basis of insufficient evidence to support the charge of criminal harassment. Justice Douglas ultimately acquitted Mr. Cornish.

12Mr. Cornish commenced this action alleging negligent investigation, defamation and malicious prosecution. The trial judge dismissed the claims of defamation and malicious prosecution. The claim of negligent investigation was successful.

TRIAL JUDGE’S REASONS

13The trial judge thoroughly reviewed the evidence and correctly identified the applicable law on criminal harassment, negligent representation, reasonable and probable grounds, and malicious prosecution.

14The trial judge concluded that the officers had reasonable and probable grounds to satisfy four of the five elements of criminal harassment. However, the officers did not have reasonable and probable grounds to satisfy the fifth element (i.e. whether the complainant’s fear was reasonable). Thus, the officers failed to conduct a proper investigation to establish that there were reasonable and probable grounds to charge Mr. Cornish with criminal harassment. Such further investigation would have enabled the officers to better assess Ms. Blanchard’s complaint.

15The trial judge described the investigative shortcomings as follows:

(a) Failure to inquire further into the nature and circumstances of the charges that resulted in the peace bond against Ms. Blanchard (i.e. that Ms. Blanchard had been charged with assaulting Mr. Cornish).

(b) Failure to review the terms of the peace bond.

(c) Ms. Blanchard expressed a fear that Mr. Cornish would follow her after she completed her shift. Detective Constable Wilson did not inquire whether Mr. Cornish had ever followed her, ever been outside the hospital when she finished her shift or ever physically threatened her.

(d) Ms. Blanchard said she was carrying a bat in her van for protection. Detective Constable Drury did not inquire what she intended to do with the bat and why she was carrying it.

(e) Ms. Blanchard told Detective Constable Wilson that when she tried to communicate with Mr. Cornish, he called the police. There were no follow-up questions about this incident and neither officer took any steps to determine the specifics of this incident.

(f) The evidence at trial indicated that in April 2013, Ms. Blanchard went to the family home, in contravention of the peace bond, and that Mr. Cornish called the police as he was required to do. This incident should have been fully explored by the police.

16In the face of these investigative shortcomings, the trial judge concluded:

I recognize that the standard is not a standard of perfection. Nevertheless, given the seriousness of a charge of criminal harassment for anyone and particularly a lawyer practicing criminal law in the jurisdiction in which the charges are going to be laid and prosecuted care must be taken that the elements of the offence have been made out. I have found that Detective Constable Wilson failed to determine whether Ms. Blanchard’s claim of fear of Mr. Cornish was reasonable, and that this failure was significant and negated the reasonable and probable grounds for charging and arresting Mr. Cornish. I conclude, therefore, that the four elements which must be met in order to satisfy a claim of negligent investigation have been met by Mr. Cornish.

April 5, 2018, Reasons for Decision, paras. 64-65.

ISSUES

17The Appellants submit that the trial judge erred in law by:

(a) Making a finding of negligence without regard to the appropriate standard of care;

(b) Determining a standard of care without any evidentiary basis and without regard to relevant police policies; and

18The Respondent submits that the trial judge erred in law by failing to consider the nullity of the information, the post-arrest failure to complete the investigation, and the police officers’ bias.

19I have answered all of the Appellants’ grounds of appeal in the affirmative. Since an affirmative conclusion on any one of these grounds of appeal warrants setting aside the trial decision, it is unnecessary to address the additional grounds of appeal advanced by Mr. Cornish.

STANDARD OF REVIEW

20The issue on this appeal is the proper application of legal standards, namely the applicable standard of care of a police officer. The interpretation of a legal standard is a question of law and is reviewable for correctness. The application of proper legal standards invariably involves questions of mixed fact and law. Questions of mixed fact and law that require “making legal inferences, or the legal effect of findings of fact, are reviewable for correctness”: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, at para. 43; R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 21; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18.

21Absent a palpable and overriding error, factual findings by the trial judge are entitled to deference. A palpable error is a factual finding that is plainly unreasonable. An example is a finding unsupported by the evidence: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 56; Tremblay, at para. 45.

22This case involves an assessment of the officers’ conduct against the appropriate standard of care. A significant question in this exercise is whether there are reasonable and probable grounds for arrest. The trial judge’s findings of fact are entitled to deference, absent a palpable and overriding error. However, the assessment of the sufficiency of the factual basis for reasonable and probable grounds involves the application of a legal standard and is subject to review on a correctness standard: R. v. Sheppard, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Anang, 2016 ONCA 825, at para. 13; Tremblay, at para. 44.

ANALYSIS

Expert Evidence

23Expert evidence is required on the content of the standard of care that applies to a police officer: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, at para. 34. This general rule is subject to two exceptions: 1) where the matters are of a non-technical nature and fall within the knowledge and experience of the ordinary person; and 2) where the impugned conduct is so egregious that it is obvious that it falls short of the standard of care: Krawchuk v. Scherbak, 2011 ONCA 352, at paras. 130-135, leave to appeal refused, [2011] S.C.C.A. No. 319; 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, at paras. 47-57.

24This case involves an assessment of whether the officers’ conduct in laying charges against Mr. Cornish fell short of the applicable standard of care. Expert evidence is required. However, appellate courts have held that “[t]he exercise of police powers of investigation, arrest and detention and police interactions with the public falling short of coercion, are part of the daily diet of judges of the Superior Court”: Meady, at para. 47; Barclay, at para. 59.

25The parties agreed that this case involved matters of a non-technical nature which fell within the knowledge and experience of the trial judge. In addition, since materials setting out professional standards governing the police officers’ actions were filed, expert evidence was not required to assist the trial judge to understand or apply the standards set in the materials or to assess whether the officers had properly applied their training.

Standard of Care

26The appropriate standard of care in the tort of negligent investigation is that of “a reasonable police officer in similar circumstances”: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73. It is not a standard of perfection nor one assessed with the benefit of hindsight. The relevant context is the prevailing circumstances at the time the officer engaged in the impugned conduct: Hill, at paras. 68, 73. A determination of whether the standard of care has been met is an assessment of police conduct against the standard of care. The defining moment is what was known to the officers at the time they formed reasonable and probable grounds.

27The content of the standard of care is governed by the nature of the activity captured by the impugned police conduct. When a police officer makes a decision to lay charges, the standard of care is informed by whether the police officer has reasonable and probable grounds to believe that a suspect has committed an offence: Hill, at para. 68.

28The test used to determine whether a police officer has sufficient reasonable and probable grounds to support an arrest is twofold: 1) whether the officer forms a subjective belief that the suspect has committed the offence; and 2) whether the belief can be justified from an objective perspective (i.e. that a reasonable person in the position of the officer can conclude that there are reasonable and probable grounds to arrest the suspect): R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 31.

29The level of scrutiny of what constitutes reasonable and probable grounds is informed by the purpose of the police officer in laying charges. The police officer is required to weigh the evidence, make an informed and carefully considered decision whether there are reasonable and probable grounds to lay a charge, and present full facts to the prosecutor. It is for the prosecutors, defence lawyers, judges and juries to determine whether the evidence gathered satisfies the legal standard for a conviction. Thus, a police officer does not have to determine whether their reasonable and probable grounds will result in a conviction. It is an error to hold the officer’s reasonable and probable grounds to that level of scrutiny: Storrey, at p. 251; Wong v. Toronto Police Services Board, at para. 54; Barclay, at paras. 50-51; Tremblay, at para. 60.

30A police officer is also not required to exhaust all possible avenues of investigation before forming reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244, at para. 16; Wong, at para. 59; Barclay, at para. 52; Tremblay, at para. 60. Therefore, it is an error to assess the sufficiency of reasonable and probable grounds in reference to other avenues of investigation an officer could have pursued.

Reasonable and Probable Grounds

31Mr. Cornish is correct in his submission that the standard of care which governed the trial judge’s analysis is informed by the Storrey test. This test requires an analysis of whether the officer forms a subjective belief that the suspect has committed the offence, and whether that belief is justified from an objective perspective. However, the trial judge did not apply the test correctly. He was required to freeze his analysis to the material time, as the determination of whether the standard of care has been met involves a consideration of what was known to the officers at the time they formed their grounds: Hill, at paras. 68, 73. Instead, the trial judge expanded the analysis to encompass other avenues of investigation Detective Constables Wilson and Drury should have explored to determine the veracity of Ms. Blanchard’s claims. For reasons previously described, this was an error. A police officer is not required to exhaust all possible avenues of investigation before forming reasonable and probable grounds.

32Mr. Cornish argues that the trial decision should be upheld. In support of his position, he provided detailed evidence to support the following identified police shortcomings: bias; preconceived conclusions; closed-mindedness; lack of due diligence; inadequate conduct of the investigation; lack of the requisite legal knowledge and administration; and mischaracterization of evidence. In so doing, Mr. Cornish fell into the same error as the trial judge.

33As previously noted, at the time the officers formed reasonable and probable grounds, Ms. Blanchard had told them the following:

(a) Despite multiple oral and written communications from her lawyer to Mr. Cornish requesting that he stop communicating with her, Mr. Cornish continued to do so. Detective Constable Wilson reviewed a copy of the lawyer’s communication with Mr. Cornish.

(c) On June 3, 2013, Mr. Cornish went to her work place, the Clinton Public Hospital, looking for her. She refused to speak to him and was scared he would be outside waiting for her after she finished work.

34These circumstances must be assessed by applying the Storrey test. Using this criterion, I conclude that the officers had reasonable and probable grounds to conclude that Mr. Cornish had committed an offence pursuant to s. 264(2)(b) of the Criminal Code.

35The officers’ belief must be both subjective and objective. The subjective belief of the officers is not in issue. When viewed objectively, I conclude that a reasonable person standing in the place of both officers would conclude that Ms. Blanchard felt harassed, that Mr. Cornish knew or was reckless or wilfully blind that Ms. Blanchard was harassed, that Mr. Cornish’s conduct caused Ms. Blanchard to fear for her safety, and that Ms. Blanchard’s fear was reasonable in all the circumstances. Thus, there were reasonable and probable grounds to support all elements of the offence as described in R. v. Sillipp, 1997 ABCA 346, leave to appeal refused, (1998), 228 N.R. 195 (S.C.C).

CONCLUSION

36The police owe Mr. Cornish a duty of care. When laying a charge, the standard of care requires them to follow the law. The law requires police officers to only lay a charge when they form reasonable and probable grounds that the suspect has committed the offence. A reasonable police officer acting in similar circumstances as Detective Constables Wilson and Drury is expected to follow the law.

37By introducing the requirement that the police officers conduct further investigation before forming an opinion as to whether they had reasonable and probable grounds to arrest Mr. Cornish, the trial judge:

(a) Did not apply the correct standard of care;

(b) Applied a standard of care without regard to relevant police policies;

(c) Assessed the police conduct from his own perspective rather than the perspective of a reasonable police officer in similar circumstances; and

(d) Thus, adopted a standard of care not supported by the jurisprudence.

38Mr. Cornish was arrested and was likely deleteriously impacted by that arrest. However, on these facts and in accordance with current jurisprudence, the police officers did not breach the requisite standard of care.

39Therefore, the appeal is granted. The decision of Deputy Judge Thomson of the Walkerton Small Claims Court dated April 5, 2018 is set aside and the Plaintiff’s action is dismissed.

40Should the parties be unable to agree on costs, a costs outline of no more than three pages shall be submitted within 20 days of the release of this decision.

___________________________

Barnes J.

Released: February 21, 2020

CITATION: Drury v. Cornish, 2020 ONSC 1173

COURT FILE NO.: DC-18-031-0000

DATE: 2020 02 21

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

DONALD DRURY, JENNIFER WILSON AND HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL OF ONTARIO

Appellants

- and -

PHILIP BRENT CORNISH

Respondent

REASONS FOR JUDGMENT

Barnes J.

Released: February 21, 2020

Drury v. Cornish, 2020 ONSC 1173

Case Summary

FACTS

TRIAL JUDGE’S REASONS

ISSUES

STANDARD OF REVIEW

ANALYSIS

Expert Evidence

Standard of Care

Reasonable and Probable Grounds

CONCLUSION

Drury v. Cornish, 2020 ONSC 1173

Case Summary

FACTS

TRIAL JUDGE’S REASONS

ISSUES

STANDARD OF REVIEW

ANALYSIS

Expert Evidence

Standard of Care

Reasonable and Probable Grounds

CONCLUSION