G.S. v. Toronto Police Services Board, 2022 ONSC 3621
DIVISIONAL COURT FILE NO.: DC 008/21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SANDERSON, SACHS and MEW JJ.
BETWEEN:
G.S.
Plaintiff/Respondent
– and –
TORONTO POLICE SERVICES BOARD, CONSTABLE LAURIE DONNA DORRINGTON, CONSTABLE ASHLEY LEE-ANN HOLMAN, CONSTABLE ADRIAN CARTER and CONSTABLE SEAN SEARS
Defendants/Appellants
COUNSEL:
Kevin D. Sherkin, for the Plaintiff/Respondent
Natalie D. Kolos and Sunny Kim, for the Defendants/Appellants
HEARD at Toronto (by videoconference): 26 January 2022
REASONS FOR DECISION
(On appeal from the decision of A. P. Ramsay J. dated 26 November 2020)
MEW J.
1This case highlights the inevitable tensions that exist where an individual has experienced the often-irreparable damage to his or her reputation as a result of being charged with offences of a sexual nature, and the need for society to be protected through the rigorous prosecution of such cases.
2On 14 May 2015, two police officers came to the door of the Toronto home that G.S. shared with his wife, O.S., and her daughter (G.S.’s stepdaughter) A.R. G.S. was told that allegations of a sexual nature had been made against him by A.R. Although the officers did not have a warrant for his arrest, he was told that if he did not surrender into the custody of the officers, they would return with one. G.S. agreed to accompany the officers, who handcuffed him in sight of his neighbours and his wife before transporting him to the police station.
3After being processed at 31 Division, G.S. was charged, held overnight and released on bail the following day.
4G.S. was charged with indecent assault, sexual exploitation of a minor, invitation to sexual touching, and possession of child pornography. The conditions of his bail precluded G.S. from returning to the home that he shared with O.S. Instead, he went to live with his sister.
5At the time of his arrest, G.S. was a retired senior official in a large labour union. He had held positions of responsibility in numerous charitable business organisations.
6Subsequent to the charges being laid, G.S.’s name was added to the Child Abuse Register, pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11.
7On 16 November 2016, after a preliminary inquiry had taken place, and immediately following a judicial pretrial before Justice C. Brewer of the Ontario Court of Justice, all of the charges against G.S. were withdrawn by the Crown. The Crown advised the court that while the situation presented was not one where the Crown in any way disbelieved the complainant:
…it is a case where, having heard all the evidence at the preliminary inquiry, and as a result of certain internal contradictions with regard to evidence, and contradictions between evidence and the evidence of people to whom she did or did not speak at different times about the allegations…there is no longer a reasonable prospect of conviction…
8G.S. spent approximately $80,000 in legal fees defending the charges and getting his name removed from the Child Abuse Register. He and his wife also incurred legal fees responding to child support proceedings commenced against them by A.R.’s paternal grandparents.
9On 26 May 2017, G.S. commenced an action against the defendants, seeking damages totalling $800,000 for negligent investigation.
10The defendants brought a motion for summary judgment, seeking a dismissal of the action on the basis that they had reasonable and probable grounds for arresting and charging G.S. and that, accordingly, there was no genuine issue requiring a trial with respect to the claim of negligent investigation.
11The motion judge dismissed the motion, holding that there was a genuine issue for trial with respect to whether the officers breached the applicable standard of care in the conduct of the investigation, and ordered the defendants to pay the plaintiff costs in the all-inclusive amount of $15,000.
12The appellants (defendants) appeal that order, with leave granted on 12 April 2021 (2021 ONSC 2652).
Background Facts
13The appellants are the individual officers associated with the investigation and arrest of G.S., and their employer, the Toronto Police Services Board.
14On 13 May 2015, A.R., who was 15 years old at the time, advised a school counsellor about a number of sexual incidents involving G.S. The counsellor reported the incidents to the Catholic Children’s Aid Society, which in turn reported them to the Toronto Police Service.
15Detective Constable Dorrington and Detective Constable Holman met with A.R. on 13 May 2015 and obtained a videotaped statement from her. During the course of the interview, A.R. described several interactions with G.S. involving various forms of sexual touching. A.R. also advised the officers that G.S. had saved a partially nude photo of her on his phone.
16On 14 May 2015, Constable Sears and Constable Carter attended G.S.’s home and placed him under arrest. His mobile telephone was seized, and subsequently searched, pursuant to a warrant. Twelve images of A.R. described as being “of a sexual nature” were retrieved.
17No witnesses, other than the complainant, A.R., were interviewed prior to G.S.’s arrest.
18DC Dorrington deposed that as a result of the information reported by A.R. during the interview, she believed that reasonable and probable grounds existed to arrest and charge G.S. with the offences of exposing genitals to a person under sixteen years of age, sexual exploitation of a young person, invitation to sexual touching of a person under sixteen years of age, and possession of child pornography.
19Subsequent to G.S.’s arrest, DC Dorrington spoke to A.R.’s mother, O.S. O.S. told DC Dorrington that there had been an incident the previous year at the beach when A.R. had told her that G.S. had “touched her somewhere” while playing in the water and that he had apologised. However, O.S. claimed that her husband would never do anything like the allegations that had been made, and declined to provide a formal statement at that time because she was distraught.
20DC Dorrington also interviewed A.R.’s aunt, R.G., on 29 June 2015. R.G. advised that at a birthday party on 27 March 2015, A.R. had told her of several instances of touching by G.S. at home and another when they were swimming in Lake Ontario. R.G. told A.R. to call the police if it happened again.
21A preliminary inquiry commenced in November 2016. After the cross-examination of A.R., there was a judicial pretrial, following which the Crown, as already indicated, withdrew the charges against G.S.
22During the course of the videotaped interview with A.R., the complainant had identified four other people who she had told about incidents of a sexual nature concerning G.S. prior to her disclosure to the counsellor and the police. A.R. also disclosed that her natural father had recently died; that there were tensions with her mother and stepfather, who she felt were overly strict; and that she was going to be away for the ensuing weekend (to attend the scattering of her father’s ashes). DC Dorrington assessed A.R. to be candid and truthful; she did not come across “as a distraught young lady who was trying to get her stepfather in trouble”.
23Asked why she felt it appropriate to charge G.S. without conducting any further investigation, and in the absence of any apparent immediate threat to A.R.’s safety, DC Dorrington said that she would be concerned for the safety of A.R. if she was put back in a home with a person who had done the things which A.R. had disclosed, even if such things were not happening every night. DC Dorrington said that she had not contacted the four individuals identified by A.R. prior to arresting G.S. because she did not know what their relationship was with G.S. and O.S. She was concerned that if she reached out to those individuals before the arrest, there was a risk that any images that had been saved on G.S.’s phone would disappear.
The Decision Appealed From
24The motion judge recited the four-part test set out by this court on Romanic v. Michael Johnson, 2012 ONSC 3449, at para. 9 (aff’d 2013 ONCA 23), which requires the plaintiff to establish, in cases where an investigation has resulted in criminal charges, that:
(1) the proceedings were initiated by the defendant;
(2) the proceedings were terminated in favour of the plaintiff;
(3) there was an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and
(4) in conducting the investigation the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances.
25There was no dispute that the defendants initiated the proceedings against G.S., and that they were terminated in his favour. Accordingly, the motion judge observed that “[t]his case turns on whether the investigation at the time of the plaintiff’s arrest disclosed reasonable and probable grounds” and that for the plaintiff to succeed, he must establish that the respondents have breached the standard of care required of reasonable police officers in similar circumstances.
26The motion judge’s conclusions on these issues are summarised in paras. 55 and 56 of her decision:
Whether or not there was [sic] reasonable and probable grounds to arrest the plaintiff, at the time he was arrested, is a triable issue, especially in light of the lack of any expert evidence to assist the court in determining whether the investigative steps take in this particular case fell within the range of similar measures used by other police officers in investigating similar allegations of sexual offences against a minor.
There is a genuine issue of trial when a judge is [un]able to reach a fair and just determination on the question of the standard of care which informs the determination of the existence of reasonable and probable grounds. This is not a case where the court can fairly make the necessary findings of fact, apply the law to the facts, and achieve a just result (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4 and 49).
Issues
27The parties are in agreement that to the extent the issues on this appeal raise questions of fact, the standard of review is that such questions cannot be reversed unless the lower court made a palpable and overriding error; in respect of questions of law, the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, at paras. 8, 10 and 25.
28The parties also agree there will be no genuine issue requiring a trial when the summary judgment process:
(1) allows the judge to make the necessary findings of fact;
(2) allows the judge to apply the law to the facts; and
(3) is a proportionate, expeditious and less expensive means to achieve a just result.
Specifically, there will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute, and is a timely, affordable and proportionate procedure: Hryniak, at paras. 49 and 66.
29The appellants argue that the motion judge made errors of law in failing to grant their motion for summary judgment, and raise the following issues:
(1) Did the motion judge err in law in failing to recognise that the existence of reasonable and probable grounds establishes that the requisite standard of care was met?
(2) Did the motion judge err in law in finding that expert evidence is required to determine whether the defendants had reasonable and probable grounds?
(3) Were the parties denied procedural fairness because the issue of whether expert evidence was required on the standard of care was not raised during the hearing or prior to the release of the motion judge’s decision?
(4) Did the motion judge err in law in suggesting (or implying) that the withdrawal of criminal charges after a preliminary inquiry may be strong evidence that the police acted without reasonable and probable grounds?
Analysis
30As will be seen, I do not consider it necessary to go through each of the issues in the manner set out above.
31The starting point in my analysis is the test for negligent investigation.
32In the present case, it is only necessary to address the third and fourth elements of the tort of negligent investigation, namely whether there was an absence of reasonable and probable grounds to commence the proceedings against the plaintiff, and whether, in conducting the investigation, the defendants owed the plaintiff a duty of care but failed to meet the objective standard of a reasonable police officer in similar circumstances.
33It is important to recognise that the four elements of the tort of negligent investigation must all be established. For the plaintiff to succeed, he must show not only the absence of reasonable and probable grounds to commence the proceedings against him but, also, that the actions of the defendants fall below the applicable standard of care.
34In Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 55, the Supreme Court of Canada stated that the requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to aspects of police work such as arrest and prosecution.
35The motion judge concluded that she was not able to reach a fair and just determination on the question of the standard of care because of the lack of any expert evidence to assist the court in determining whether or not there were reasonable and probable grounds to arrest the plaintiff.
36As I will explain, expert evidence is generally not required for this court to determine whether or not there were reasonable and probable grounds to prosecute the plaintiff.
37In R. v. Storrey, [1990] 1 S.C.R. 241, at 250, the Supreme Court held that it is not sufficient for a police officer to subjectively believe that he or she has reasonable and probable grounds to make an arrest. It must be objectively established that a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.
38As a result of the information reported by A.R. during her videotaped interview, DC Dorrington says she believed that there were reasonable and probable grounds to arrest and charge G.S. DC Dorrington testified that she believed A.R. as she did not seem to embellish her account and appeared to be telling the truth.
39It is well established that police can continue their investigation subsequent to an arrest; investigating crimes can and should continue after a lawful arrest has been made. In other words, it is not necessary for an investigation to be complete before the existence of reasonable and probable grounds can be established and an arrest can lawfully be made: Storrey, at 254.
40As Leach J. noted in J.H. v. Windsor Police Services Board, 2017 ONSC 6507, at para. 6:
When police act on the evidence of a victim that could, if believed, justify a charge and conviction, they accordingly act on a reasonable and probable grounds even if that evidence ultimately proves insufficient to persuade the trier beyond a reasonable doubt. Where reasonable grounds are based on the evidence of a witness, establishing a breach of the standard of care in a negligent investigation claim requires a plaintiff to demonstrate that the police defendants had “overwhelming” evidence discrediting that witness.
41Furthermore, as the motion judge noted, sections 151 and 153 of the Criminal Code, R.S.C., 1985, c. C-46 (as amended), expressly provide that no corroboration is required for the offences of sexual interference or sexual exploitation. The prosecution of many sexual offences rests substantially, if not exclusively, on the uncorroborated evidence of a complainant. I agree with the appellants’ submission that if an individual can be convicted on the uncorroborated evidence of a single witness, it is axiomatic that such evidence can form the basis of reasonable and probable grounds.
42While there may be situations in which expert evidence can be of assistance in determining a claim of negligent investigation, where the case does not involve technical matters, the existence of reasonable and probable grounds is an issue that courts routinely deal with in criminal cases and, hence will typically lie within the knowledge and experience of a Superior Court judge, such that no expert evidence is required to make that determination: J.H. v. Windsor Police Services Board, at para. 6. Indeed, as the Court of Appeal has observed, the exercise of police powers of investigation, arrest and detention of police interactions with the public falling short of coercion, are part of the daily diet of judges of the Superior Court: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, at para. 47.
43The record does not disclose any evidence to show that the defendant officers were in the possession of overwhelming evidence to discredit A.R.’s account. It also clear that (as the motion judge recognised) the fact of an acquittal or withdrawal of charges is not relevant to whether the police had reasonable and probable grounds to lay the charges: George v. Larkin, 2016 ONSC 4961, at para. 8.
44Accordingly, on the record before the motion judge, expert evidence was not required to determine whether reasonable and probable grounds existed to arrest G.S. It was an error of law for the motion judge to hold otherwise. Such an assessment would not be outside the experience and knowledge of a superior court judge.
45In the absence of any evidence that the defendants were in the possession of overwhelming evidence discrediting A.R.’s account or of facts pointing overwhelmingly to G.S.’s innocence, it was clear that reasonable and probable grounds to arrest and charge G.S. existed.
46The four-part test for establishing negligent investigation is, as already noted, conjunctive. If the respondent is unable to establish that the appellants did not have reasonable and probable grounds for the arrest of G.S., the claim for negligent investigation will fail, even if the respondent can establish other elements of the tort.
47In conclusion, the record amply equipped the motion judge to find that there were reasonable and probable grounds to arrest and charge G.S. and, hence, that there was no genuine issue requiring a trial. Summary judgment should have been granted to the appellants.
48The appeal is therefore allowed, and the action dismissed. The parties agreed in advance that the successful party or parties on this appeal would be entitled to costs in the amount of $10,000. The respondent shall pay the appellants’ costs in that amount.
Mew J.
I agree _______________________________
Sanderson J.
I agree _______________________________
Sachs J.
Released: 20 June 2022