Court File and Parties
COURT FILE NO.: CV-12-460722 DATE: 20180807 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RIAZ BAGHA and SAJIDHA BAGHA Plaintiffs/Responding Parties – and – THE TORONTO POLICE SERVICES BOARD Defendant/Moving Party
COUNSEL: Davin Charney and Chris Rapson, for the Plaintiffs/Responding Parties Jonathan Thoburn, for the Defendant/Moving Party
HEARD: July 5, 2018
REASONS FOR DECISION
W. MATHESON J.
[1] The defendant moves for summary judgment, dismissing this action. The action is for negligent investigation, false arrest and imprisonment, malicious prosecution and breach of the Canadian Charter of Rights and Freedoms. The action arises from extortion charges laid against the plaintiff parents, and later withdrawn, arising from two schoolyard assaults against their son.
Brief background
[2] In 2009, the plaintiffs’ son Imran was assaulted by a student, HA, in the schoolyard. Imran’s nose was broken. He was then 16 years old. In response to questions from his parents about his injuries, he said he was injured playing basketball.
[3] In 2010, Imran was assaulted by another student, RA, and again suffered injury to his nose. Shortly after this second incident, he told his parents that both his injuries in 2010 and in 2009 were caused by assaults on him committed by other students, in 2010 by RA and in 2009 by HA.
[4] After attending at the hospital for medical attention for their son the next day, the plaintiffs and their son went to a Toronto Police Service station to report both assaults to the police. The police gave the plaintiffs a phone number to call from their home in order to report the assaults.
[5] The school in question is connected to a mosque and all involved in the 2010 assault were members of the mosque. That same day, an Imam from the mosque contacted the plaintiffs and asked to meet about the assault. Later the same day, at the mosque, the Imam met with the plaintiffs, their son, RA and his parents. There is some dispute about what transpired both at this meeting and later on. The plaintiffs say that RA’s parents raised the issue of the police and begged the plaintiffs not to report the assault to the police. An agreement was reached to resolve the matter, but later rejected. Ultimately, there was another meeting at the mosque facilitated by another Imam and all concerned reached an agreement to resolve the matter within their community without involving the police. The agreement included an acknowledgement of RA’s responsibility and other terms, including monetary compensation in the amount of $2,000 to be paid by three cheques that were provided to the plaintiffs.
[6] After the resolution of the 2010 assault in this way, the plaintiffs wrote to the parents of HA suggesting the same approach in relation to the 2009 assault. Three letters were sent to HA’s parents. A meeting was held in which compensation was suggested by the plaintiffs, but the offer to resolve the matter in that way was declined.
[7] The plaintiffs then proceeded, about nine days later, to report the 2009 assault to the police. During questioning on that phone call, the plaintiff Sajidha mentioned both assaults.
[8] The phone report to the police was made on July 29, 2010. PC Rodrigues came to the plaintiffs’ home that day and interviewed the plaintiffs and their son. The plaintiffs told the police officer about how they had resolved the 2010 assault and about their overtures to the parents in relation to the 2009 assault. The police opened two investigations: one into the assaults and the other into potential extortion charges against the plaintiffs under s. 346(1) of the Criminal Code, R.S.C. 1985, c. C-46. Det. Campbell was assigned to investigate the potential extortion charges.
[9] Det. Campbell’s investigation, prior to the laying of extortion charges, was brief. On July 29, the same day the report was made by the plaintiffs, Det. Campbell spoke to RA’s mother by phone and phoned Sajidha to ask about the cheques the plaintiffs were given regarding the 2010 settlement. On that phone call, Det. Campbell told Sajidha that the plaintiffs were committing the offence of extortion. The next day, July 30, Det. Campbell spoke with a Crown Attorney that she happened to run into, who agreed that the facts that Det. Campbell relayed amounted to extortion. As well, Det. Campbell interviewed HA’s father on July 31.
[10] On August 1, Det. Campbell prepared a formal synopsis of the facts regarding each of the two charges. Those synopses were used in the criminal proceedings. There are a number of material errors in those synopses, beginning with the description of both assaults as “consensual” and describing the 2010 assault as a fight where “neither [student] received any injuries.” There were other errors as well. The material errors in the synopses were not rectified.
[11] On August 2, Det. Campbell interviewed RA’s mother. She did not interview RA’s father, any member of the plaintiffs’ family or the Imams that had been involved at the mosque. She did have access to PC Rodrigues’ notes of his interviews on July 29.
[12] After August 2, Det. Campbell contacted the plaintiffs and indicated that they should attend at the police station, where they would be arrested and charged with extortion. They did so. Two charges were laid against each of them, one with respect to the 2010 assault and one with respect to the 2009 assault. While at the police station, Sajidha was taken into custody by a male officer, who held her by her clothes.
[13] The plaintiffs also re-attended on a later date for purposes of the Identification of Criminals Act, R.S.C. 1985, c. I-1. Prior to her photograph being taken, Sajidha asked the male officer if she had to remove her hijab and was told, yes. She did so.
[14] On December 15, 2010, the plaintiffs, along with their criminal counsel, attended at the Ontario Court of Justice regarding the charges against them. The Crown attorney used some of the incorrect statements from the 2010 synopsis in court. At that time, both criminal charges against each of the plaintiffs were withdrawn and they entered into a peace bond under s. 810 of the Criminal Code. The peace bond only addressed the people involved in the 2010 assault and related charge, not the separate family involved in the 2009 assault/charge.
[15] Among other submissions, the plaintiffs’ criminal counsel indicated to the judge that his clients thought they were doing a mediation at the school and had realized that it was wrong to refer to criminal charges.
[16] The plaintiffs have put forward detailed evidence regarding why they decided to resolve the criminal proceedings against them in this way, including the legal advice they received, but the plaintiffs have not sued the Crown attorney and therefore did not put forward evidence about their counsel’s dealings with the Crown attorney. Their action is against the police and is based on the conduct of the police, mainly Det. Campbell, her limited investigation and her problematic synopses that were used in the criminal proceedings.
[17] After the criminal proceedings had concluded, the plaintiffs’ son retained counsel who commenced claims in the Small Claims Court in relation to the two assaults. These claims were against HA and RA and were settled. As part of that settlement, HA and RA attested that their families did not feel threatened or menaced by anyone in the plaintiffs’ family, which is contrary to what their parents told the police.
[18] In this action, the plaintiffs seek compensation for negligent investigation, false arrest and imprisonment, malicious prosecution and breach of the Canadian Charter of Rights and Freedoms. The Charter claim relates to the arrest and photographing of Sajidha, and although other Charter sections are included the claim is primarily based upon freedom of religion under s. 2(a) of the Charter.
Issues
[19] The defendant predominantly relies on the peace bonds in support of its motion. The issues on this motion are the following:
(1) whether the peace bonds are dispositive of all the plaintiffs’ claims, as submitted by the defendant: and, (2) if not, whether certain other defences that have been put forward on this motion are dispositive within the summary judgment process.
[20] In its notice of motion, the defendant did not ask for partial summary judgment in the event that the issues advanced on this motion do not defeat the whole claim or should not all be decided within this process.
Rule 20
[21] Under subrule 20.04(2), summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial with respect to, on this motion, the plaintiffs’ claim.
[22] As set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This will be the case when the 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, more expeditious and less expensive means to achieve a just result.”
[23] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20(2.2) to direct a procedure such as a mini-trial, rather than a full trial.
[24] The responding parties may not rely on the prospect of additional evidence that may be tendered at trial; the respondents must put their best foot forward on the motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97.
[25] Causes of action including negligent investigation, false arrest and imprisonment and malicious prosecution, which are often fact-laden claims, invoke significant policy considerations that suggest that the motion judge should even more carefully examine the factual record: Moak v. Ontario (Provincial Police), at paras. 7-8, citing Nelles v. Ontario (1989), 60 D.L.R. (4th) 609 (S.C.C.). I have done so. Nonetheless, the nature of these causes of action does not expand or alter the court’s jurisdiction on a motion for summary judgment: Moak, at para. 8.
[26] The evidence before me is in various forms, including materials such as video statements from the Crown disclosure and also transcripts from the examinations for discovery. I briefly address an issue about the discovery transcripts in particular. Each side relies, to some extent, on statements made at the discovery of the other side. There is agreement that they may do so up to a point. The plaintiffs have made a technical objection to the defendant relying on excerpts from the plaintiffs’ transcripts because the defendant did not file the entire transcripts and did not get consent under Rule 34.18. However, the plaintiffs have filed the entire transcripts and I am not persuaded to overlook the transcript excerpts that the defendant relies upon. The defendant also objects to the plaintiffs’ reliance on their own transcripts, but I conclude that the plaintiffs have also put forward affidavit evidence in support of the relevant facts where the transcript is also cited. That dispute is therefore immaterial.
Effect of Peace Bonds
[27] The defendant relies heavily on the peace bonds entered into by the plaintiffs, submitting that they are dispositive of the entire claim.
[28] Beginning with the tort of malicious prosecution, its constituent elements are the following: (1) the prosecution must have been instituted or continued by the defendant; (2) the proceedings must have been instituted or continued without reasonable and probable grounds; (3) the defendant must have acted out of malice or for a primary purpose other than carrying the law into effect; and (4) the prosecution must have terminated favourably for the plaintiff: Moak, at para. 54, citing Nelles v. Ontario, at pp. 196-197, and Proulx v. Quebec (Attorney General) 2001 SCC 66, 206 D.L.R. (4th) 1 (S.C.C.).
[29] The defendant submits that given the peace bonds, the plaintiffs cannot satisfy the fourth element of the tort – that the prosecution terminated favourably for the plaintiffs. The tort of negligent investigation shares this requirement: Sheridan v. Ontario, 2015 ONCA 303, at paras. 20-21; Romanic v. Johnson, 2013 ONCA 23, at para. 12.
[30] The defendant takes the position that the peace bond is fatal to the plaintiffs’ case, regardless of the circumstances. There are certainly a number of decisions of this court where this type of claim was dismissed because of a peace bond.
[31] The plaintiffs submit that while a peace bond may be a bar to a malicious prosecution claim, it is not automatic – it depends on a number of circumstances. This position is supported by appellate authority.
[32] The Court of Appeal had previously affirmed in Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.) that a peace bond was conclusively not an outcome in favour of the plaintiff. However, Ferri v. Root, 2007 ONCA 79, (sub nom Mammoliti v. Niagara Regional Police Service) 279 D.L.R. (4th) 643) (“Mammoliti”) called that proposition into question, including with reference to peace bonds, at paras. 52-53 (per LaForme JA., for the majority):
More recent cases have held that the prosecution is not terminated in favour of an accused person where the charges against that person are withdrawn after he or she enters into a peace bond … Merely finding such an arrangement, agreement or compromise, however, should not, in my view, end the court's analysis of an action for malicious prosecution… there should be a further analysis into the underlying reasons on the part of the Crown and police for entering into such an arrangement. [Emphasis added.]
[33] Although Mammoliti was not itself a peace bond case, peace bonds were expressly referred to in relation to the above holding.
[34] In 2009, citing Mammoliti, the Supreme Court of Canada held that where the termination of proceedings is not the result of an adjudication on the merits, “a live issue may arise whether the termination of the proceedings was ‘in favour’ of the plaintiff”: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 54.
[35] These appellate cases suggest that a peace bond may, but not necessarily will be, a disposition that is not in favour of the accused.
[36] After Mammoliti there are cases that do not treat a peace bond as an automatic bar to a claim for malicious prosecution: E.B.F. v. H.M.Q. in Right of Ontario et al, 2013 ONSC 2581, at para. 30; Brown v. Woodstock (City) Police Service Board, 2017 ONSC 4218, 386 C.R.R. (2d) 1, at paras. 53-55, rev’d on other grounds 2018 ONCA 275, leave to appeal to SCC requested, 38061 (April 6, 2017); Adamson v. Ontario (Attorney General), 2014 ONSC 3787, 16 C.C.E.L. (4th) 67, at para. 80. There are also some cases that treat a peace bond as an automatic bar, but they make no mention of the Mammoliti decision and must therefore be treated with caution: Bilich v. Toronto Police Services Board, 2013 ONSC 1445, 278 C.R.R. (2d) 201, at para. 50; Charlton v. St. Thomas Police Services Board (2009), 190 C.R.R. (2d) 103 (Ont. S.C.), at para. 48; Kahn v. Peel (Regional Municipality) Police Services Board, [2008] O.J. No. 3494 (S.C.), at para. 4. Only one decision provided expressly refers to Mammoliti yet finds that the prior law in respect of the effects of a peace bond was not called into question by LaForme J.A., Lauber v. Atkinson, 2011 ONSC 4597, at para. 9.
[37] Contrary to the defendant’s position, it is therefore not the case that a peace bond will necessarily be an automatic bar to these claims. This leads to an inquiry about the relevant circumstances surrounding these peace bonds in particular.
[38] The plaintiffs submit that the evidence in their case presents a constellation of circumstances that require a Mammoliti analysis. For example, the plaintiffs rely on the fact that the peace bonds in this case only refers to one of the two sets of charges, yet both sets of charges were withdrawn. Further, the peace bonds themselves are not responsive to the charges. A peace bond under s. 810 of the Criminal Code relates to an information laid before a justice by or on behalf of a person who fears on reasonable grounds that another person will cause personal injury to him or her or his family, or will damage his or her property. Even the defendant does not suggest that those circumstances were engaged here. The peace bond themselves are not challenged, but the plaintiffs submit that they were merely a means to an end, that is the withdrawal of the charges, not a disposition of the merits of the charges in any fashion. The plaintiffs go on to rely on the circumstances surrounding the events, the flawed investigation as revealed in the synopses prepared by Det. Campbell and used in the criminal proceedings, and their reasons for agreeing to this disposition of the criminal charges, concluding that in all the circumstances this peace bond should be regarded as a disposition in favour of the plaintiffs, not the contrary. The defendant disputes much of the evidence and other reasons put forward on this issue.
[39] With respect to the claim based upon false arrest and imprisonment, those claims are actions in trespass: “The plaintiff must only prove that the defendant caused the plaintiff to be arrested, detained, or imprisoned. Then, the onus shifts to the defendant to justify his or her actions as lawful”: Moak, at para. 51. The defendant can prove justification by showing that objectively there were reasonable and probable grounds for the arrest and that he or she subjectively believed that there were reasonable and probable grounds to make the arrest: Moak, at para. 51. It is not at all clear that the peace bonds would be a defence to this claim, but if they were a potential defence, the same issues would arise.
[40] Nor has the defendant provided any authority that demonstrates that a peace bond automatically defeats a Charter breach. The defendant relies upon Sheridan v. Ontario, 2014 ONSC 4970, which relies on the pre-Mammoliti Court of Appeal decision in Beardsley. Yet even Beardsley itself does not appear to support this proposition. The defendant also relies upon Charlton v. St. Thomas Police Services Board, yet that case is also not factually similar to the Charter issues here. Here, it is the manner of the arrest that is at issue in the Charter claim.
[41] I therefore conclude that the peace bonds may, but not necessarily will, defeat the claims of malicious prosecution and negligent investigation. To reach the necessary conclusion would require the determination of a number of disputed facts. And even if the peace bonds were relevant to the other claims, the same issues would arise.
Other grounds for this motion
[42] The other main ground advanced by the defendant in support of this motion is that Det. Campbell had reasonable and probable grounds and, therefore, the plaintiffs cannot succeed on any of their tort claims. Leaving aside the question of whether this would defeat all the tort claims, there are issues with this defence on the record before me.
[43] The defendant first relies on the peace bonds, once again, submitting that they preclude a finding that there were no reasonable and probable grounds. However, the defendant again relies on Beardsley without regard for the more recent case law referred to above.
[44] Moving to the question of whether there were reasonable and probable grounds, the following is required, as set out in Nelles, at paras. 43-44:
An honest belief in the guilt of the accused based on a full conviction, founded on reasonable grounds, of the existence of the state of circumstances, which, assuming them to be true, would reasonably lead an ordinarily prudent and cautious [person], placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
[45] A police officer is not required to establish a prima facie case, obtain the accused’s version of events or otherwise establish that the accused has no valid defence before being able to form reasonable probable grounds: R. v. Storrey, [1990] 1 S.C.R. 241, at paras. 24-28.
[46] Each side to this action puts forward facts known to Det. Campbell at the relevant time in support of their respective positions that there either were, or were not, reasonable and probable grounds. The main challenge for the defendant arises from the material errors in the synopses, compared to the information that Det. Campbell had at the time. The evidence before me gives rise to significant questions about her honest belief, as does the timeline, and the immediate communication from Det. Campbell about extortion and the status of the investigation to that point. Factual issues in this area overlaps substantially with the circumstances relied upon by the plaintiffs in relation to the effect of the peace bonds.
[47] On the Charter issues, the defendant primarily relies on s. 3 of the Identification of Criminals Act, which provides a statutory defence for “anything lawfully done under this Act”. Before me, there was no dispute that this protection would not be available if any of the tort claims succeeded. The prerequisite that the conduct at issue be “lawfully done” sweeps in the issues from the other claims. This defence therefore does not separate the Charter claim from the issues in the balance of the action. It also does not extend to that part of the Charter claim that relates to the manner in which Sajidha was taken into custody.
[48] In regard to the Charter claims on their merits, the defendant submits that any breach of Sajidha’s Charter rights was trivial and justified. I raised the question, in oral argument, about whether the claims for breach of the Charter could be bifurcated and dealt with separately since it did not appear that there were facts in dispute in relation to those claims on their merits. However, the defendant had not sought that relief in its notice of motion, in the alternative or otherwise, and the issue was therefore not briefed in the facta. Plaintiffs’ counsel frankly submitted that he had not been briefed on the law of partial summary judgment, which is not surprising in the circumstances, and objected to that relief.
[49] Although not pursued in oral argument, the defendant also relies on the absence of expert evidence from the plaintiffs on the standard of care in relation to the claim of negligent investigation. In response, the plaintiffs submit that this is one of those cases that fall within the exception to the ordinary rule: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, at paras. 33-36 and 47; 495793 Ontario Ltd. v. Barclay, 2016 ONCA 566, at paras. 33 and 36. In addition, this issue would not dispose of the entire action in any event.
[50] Returning to the summary judgment test, I conclude that there are genuine issues requiring a trial based on the evidence before me, without using the fact-finding powers in the summary judgment rule. These issues arise in relation to whether or not the peace bond should defeat the tort claims, whether or not there were reasonable and probable grounds and whether the statutory defence to part of the Charter claims was available. Moving to the second stage of the Rule 20 analysis, specifically whether I should use the extended powers under Rule 20.04(2.1), I conclude that there be no efficiency in doing so. The evidence required would largely mimic the trial.
[51] With respect to the Charter claims on their merits, I have considered whether to deal with it as if this was a motion for partial summary judgment. I conclude that it would not be fair or efficient to do so. This relief was not sought, and considering the litigation as a whole I am not persuaded that partial summary judgment would serve the objectives of proportionality, efficiency and cost effectiveness: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 38. I reach the same conclusion with respect to the issue of expert evidence on the negligent investigation claim.
[52] I conclude the issues put forward by the defendant in support of this motion cannot be fairly and justly decided using the summary judgment process.
Orders
[53] This motion is therefore dismissed. In accordance with Skunk v. Ketash, 2016 ONCA 841, at para. 62, I have specifically considered to what extent I have made determinations of law that are intended to be binding on the parties at trial. I do not intend to make any such determinations. I therefore do not invoke subrule 20.04(4). In accordance with Hryniak, at para. 78, I seize myself of this matter subject to my availability on the civil list, which may be determined through the Toronto civil motion/trial office as needed.
[54] If the parties are unable to agree on costs, they shall make their costs submissions in writing as follows: the plaintiffs shall deliver brief written submissions plus a costs outline by August 30, 2018 and the defendant shall deliver brief written responding submissions by September 14, 2018. These parties may agree on a different schedule provided that it is on consent and I am notified of it before August 30, 2018.
Justice W. Matheson Released: August 7, 2018