Court File and Parties
COURT FILE NO.: CV-18-604990 DATE: 20190722
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RANDALL J. BARRS Plaintiff – and – HALTON REGIONAL POLICE SERVICE, SERGEANT JEFF LEDER, D.C. COLIN KILFEATHER, D.C. JEFF KNAPP, D.C. JASON CARON, D.C. CHRIS LEE, GRAYSON RANDALL DELONG, JOHN DOE and JOHN DOE 2 Defendants
Counsel: Patrick Ducharme, for the Plaintiff Douglas O. Smith and Samantha Bonanno for the Defendants
HEARD: July 11, 2019
Cavanagh J.
REASONS FOR DECISION
Introduction
[1] On the afternoon of September 20, 2016 the plaintiff, Randall J. Barrs, a criminal defence lawyer with an office near Bedford Road and Bloor Street in downtown Toronto, was shot in front of his office by a man who was then under surveillance by a team of police officers in connection with the investigation of a night-time commercial break-and-enter in Burlington, Ontario.
[2] Mr. Barrs brings this action against the Halton Regional Police Services and police officers who were members of the surveillance team (the “police defendants”) claiming damages for negligence.
[3] The police defendants bring this motion for summary judgment dismissing the action on the ground that there is no genuine issue requiring a trial with respect to Mr. Barr’s claims. The issue on this motion is whether there is a genuine issue requiring a trial in relation to whether on the day of the shooting, the police defendants owed Mr. Barrs a prima facie private law duty of care to protect him from being the victim of the violent crime which was committed that day.
[4] Mr. Barrs and the police defendants agree that if this motion is dismissed, the action should proceed to trial.
[5] For the following reasons, the police defendants’ motion for summary judgment is granted and the action is dismissed.
Factual Background
[6] Mr. Barrs generally accepts the following facts as set out in the police defendants’ factum, with some additional facts set out in Mr. Barrs’ factum. These facts are taken from the affidavit evidence of the two investigating officers and the five members of the surveillance team, and cross-examinations of the deponents on their affidavits. Mr. Barrs did not deliver any responding affidavit evidence.
A. The Commercial Break-and-Enter
[7] On August 4, 2016 Detective Vince Couce of the Halton Regional Police Service (“HRPS”) District Criminal Investigations Bureau responded to a call relating to a commercial break-and-enter that occurred at The Brick, a retail store located in Burlington. It was determined that television sets had been stolen from The Brick.
[8] Blood was observed at the scene and Det. Couce believed that the blood was from the suspect. A HRPS Scenes of Crime officer collected a sample of the blood found at the scene for submission for DNA analysis.
[9] On or about August 29, 2016, Det. Couce received information that HRP had received a scene-to-scene DNA match regarding the break-and-enter and another occurrence in the Peel Region where there had been an arrest by the Peel Regional Police Service. The DNA match identified the accused arrested by the Peel Regional Police Service as Grayson Randall Delong (“Delong”).
[10] The Peel Regional Police Service charges against Delong were still before the courts at the time and Delong had been released on his own recognizance following the occurrence in the Peel Region.
[11] Det. Couce believed it likely that Delong was still active in committing night-time commercial break-and-enter offences, and thought that Delong, any associates, and evidence from the break-and-enter could be located through surveillance.
[12] Det. Couce requested that Detective Constable Tokat, who was assisting with the investigation of the break-and-enter, complete a surveillance request in order to have Delong followed from his next court appearance. On September 6, 2016, DC Tokat completed an internal mobile surveillance request for surveillance to be conducted on Delong. The surveillance request was approved on September 7, 2016.
[13] DC Tokat also determined that Delong’s next court appearance in respect of the occurrence in the Peel Region was to take place on September 20, 2016 at the Grenville and William Davis Courthouse in Brampton.
[14] The surveillance request listed some of Delong’s previous convictions, which included Assault, Assault Causing Bodily Harm, Assault with a Weapon, Drug Possession, Assault Police, Break and Enter, Failed to Comply/Attend, Cruelty to Animals, Fraud, Unauthorized Possession of a Firearm and Ammunition, Theft, Mischief, Possession of Stolen Property, Unlawfully at Large, Escape Lawful Custody, Careless Use of Firearm, Unlawful Acquisition of Firearm, Impaired Driving and Uttering Threats.
[15] The object of the surveillance was to monitor Delong’s movements and to identify his associates and his current address. The purpose of the surveillance was to further the investigation into the break-and-enter at The Brick.
[16] Neither Det. Couce nor DC Tokat had any belief that Delong was planning to conduct any criminal activity on September 20, 2016 and specifically they had no information to suggest that Delong was planning to shoot Mr. Barrs or anyone else.
The Mandate of the Team
[17] The surveillance request was assigned to a HRPS mobile surveillance team comprised of Detective Jeff Leder, Detective Constable Colin Kilfeather, Detective Constable Jeff Knapp, Detective Constable Jason Caron and Detective Constable Chris Lee. The team was led by Det. Leder. No member of the team had ever dealt with or had contact with Delong and the surveillance request was the very first time that any of them had any involvement with any matter concerning Delong.
[18] The mandate of the team that day was to gather information about Delong, his address, and his association with other individuals who might have been involved in the break-and-enter at The Brick. It was not the mandate of the team to attempt to arrest Delong in respect of this break-and-enter.
[19] None of the members of the team had any reason to suspect that Delong was planning to conduct any criminal activity on September 20, 2016. The team was operating in a covert manner and trying to gather information to pass along to the investigative team, the members of which would ultimately be responsible for any arrest of Delong in respect of the break-and-enter at The Brick.
[20] The surveillance began at the Courthouse at approximately 8:30 a.m. where Delong was scheduled to make a court appearance. At that time, Det. Leder briefed the team and reviewed the surveillance request with the team along with a photograph of Delong.
C. The Surveillance
[21] Delong was identified inside the Courthouse by DC Kilfeather. When Delong’s court appearance concluded, he entered a silver Honda Civic. The license plate number of the Honda was obtained and DC Lee made inquiries with the Ministry of Transportation. DC Lee learned that the license plates had been reported as missing.
[22] Delong then travelled to the Sherway Gardens Mall in Toronto where he parked, exited his vehicle, and walked into a Tim Horton’s restaurant. The vehicle identification number of the Honda was obtained by DC Kilfeather. DC Kilfeather also observed that the ignition of the Honda had not been tampered with.
[23] From the vehicle identification number of the Honda it was determined that the vehicle was registered to a male who resided in Mississauga and that it had not been reported as being stolen.
[24] Delong then met with an unknown male at the midway point of the exterior stairwell of the parking garage at Sherway Gardens Mall. After speaking for a period of time, Delong and the unknown male walked back towards the parking lot and entered an Audi.
[25] The team followed the Audi to a McDonald’s parking lot on the south side of Dundas Street near Dixie Road in Mississauga, and Delong was observed to enter into an office building.
[26] The team then followed the Audi to a subdivision in South Etobicoke. Delong was seen to exit the Audi, walk several blocks away, and enter a yellow three-story building.
[27] Delong was then observed to exit the building carrying a backpack and a gym bag and wearing running shoes. None of the members of the team believed at that time that Delong was carrying a firearm.
[28] Delong was then observed to get back into the passenger seat of the Audi and the team followed the Audi back to Sherway Gardens Mall.
[29] The Audi was observed to park in the north end of the parking lot. Delong and the other male were observed to sit in the Audi in the parking lot of Sherway Gardens Mall for a period of time, before the Audi finally dropped Delong off at the Tim Horton’s across the street from the Sherway Gardens Mall. Delong took the backpack with him but not the gym bag.
[30] DC Kilfeather then observed Delong pump gas into the Honda at a gas station on the southwest corner of Evans Avenue and Brown’s Line while wearing the backpack.
[31] The team then followed the Honda towards downtown Toronto. The team observed the Honda exit the Gardiner Expressway at Spadina Avenue and travel northbound.
[32] Delong was observed to park the Honda near the intersection of College Street and Spadina Avenue where he again entered a Tim Horton’s restaurant. The Team then observed Delong get back into the Honda and put on an orange and yellow construction vest.
[33] At approximately 1:34 p.m., the team followed the Honda northbound on Spadina Avenue, eastbound on to Bloor Street, and then south into BP Nicol Lane, where Delong parked behind a building. Shortly thereafter, Delong donned a blonde wig and a construction helmet.
[34] At this point, the members of the team were not sure what Delong was doing. Det. Leder directed the members of the team to ensure that they had their use of force options ready in case Delong committed an offense.
[35] Delong was then observed to travel in the Honda to the area of Lowther Avenue and Admiral Road in the Yorkville area of the City of Toronto. Delong was observed to park the Honda and then walk to Taddle Creek Park near the intersection of Lowther Avenue and Bedford Road.
[36] Delong was observed to be wearing the backpack, running shoes, a construction vest, a yellow construction helmet over a blonde wig, and dark sunglasses. Delong lay under a tree in the corner of the park and was observed to consult his mobile phone from time to time.
[37] At this point, the members of the team did not know what, if anything, Delong was planning to do. However, it was the subject of speculation amongst the members of the team that Delong might be planning to commit a robbery, as there were a number of financial institutions south of where Delong was situated.
D. Contact with Other Services
[38] Det. Leder had periodically updated to Det. Couce regarding the movements of Delong throughout the day. At some time after 2:00 p.m., Det. Leder advised Det. Couce that Delong was in the City of Toronto and had put on a wig and a construction helmet. Det. Leder asked Det. Couce to contact the Peel Regional Police Service Hold-Up squad to find out if they had any record of robberies involving Delong or suspects of a similar description.
[39] Det. Couce checked with the Peel Regional Police Service and was advised that it had no knowledge of any such occurrences and passed this information along to Det. Leder. Det. Couce also checked with the Halton Regional Police Service, learned that there were no such occurrences on file with it, and passed this information along to Det. Leder.
[40] In order to further investigate Delong’s activities, Det. Leder spoke with Det. Paul Moreau of the Toronto Police Service Hold Up Squad. Det. Moreau checked outstanding occurrences regarding banks and retail occurrences, checked the Toronto Police Service system for Delong, and advised that the Toronto Police Service was not aware of any occurrences involving an individual who matched Delong’s description being involved in any similar occurrences.
E. Consideration of Grounds for Arrest
[41] Det. Leder and Det. Couce discussed the matter with each other and decided that while Delong’s actions were suspicious and were a cause for concern, at that point in time they did not have sufficient grounds to arrest Delong in relation to any new offence. It was further decided that if sufficient grounds were developed to arrest Delong in relation to any new offence, Delong would be arrested by the team.
[42] This plan was discussed with the team. No member of the team believed that he had sufficient grounds to arrest Delong at that point in time. DC Knapp testified on his cross-examination that there was discussion among members of the team about the totality of Mr. Delong’s behaviour that day and the disguise, and he agreed that a decision was made not to arrest Delong for wearing a disguise.
[43] Delong sat for a period of time in the Taddle Creek Park. Delong then got up, walked back to the Honda, and then drove around the neighbourhood without any clear destination. Delong returned to the area of Taddle Creek Park and parked the Honda on the west side of Bedford Road.
[44] Various members of the team took up various positions around the Honda and DC Kilfeather went out on foot to establish a better vantage point from which to observe Delong. DC Kilfeather advised Det. Leder via cell phone that Delong was sitting in the rear of the Honda on the passenger side. DC Kilfeather then took up a position in a stairwell at 25 Bedford Road.
F. The Shooting and Arrest of Delong
[45] DC Caron, who could see the Honda from where he parked his own unmarked vehicle, saw Delong suddenly exit the Honda and run across the street. DC Caron announced this development over the police radio to the other members of the team.
[46] At about the same time, DC Kilfeather heard the door to the Honda close. He looked out from his place of concealment and noticed that Delong was no longer in the Honda. DC Kilfeather advised Det. Leder of this development via cell phone.
[47] Immediately after Delong exited the Honda, shots were heard. DC Caron announced “shots fired” over the police radio and DC Kilfeather gave the same advice to Det. Leder via cell phone.
[48] None of the team members knew who had been shot, or whether there was just one shooter. Det. Leder instructed the team to “take down” and arrest Delong.
[49] DC Kilfeather saw Delong run back across the street and get into the front seat of the Honda. Delong seemed to have a black coloured object in his right hand, which DC Kilfeather believed to be a handgun. On his cross-examination, he stated that he observed Delong scrambling back to the Honda with a black object in his hand that “I processed as a firearm at that moment”. DC Kilfeather took out his firearm and started to run towards the Honda. DC Kilfeather did not have his firearm immediately available.
[50] The Honda pulled away from its parking spot in a southbound direction on Bedford Road and stopped in front of the driveway of 23 Bedford Road. Delong shot through the driver’s side window and blew out the window.
[51] As Delong began to drive away, DC Kilfeather removed his firearm from his backpack and chased after the Honda while yelling “Police”. DC Kilfeather pointed his firearm at the rear hatch of the Honda and discharged his firearm 3 to 4 times for the purpose of ending the threat posed by Delong. DC Kilfeather saw Delong slump towards the passenger seat and the Honda slowed but continued to roll forward.
[52] Other members of the team arrived at the Honda and boxed it in. DC Caron and DC Kilfeather began to render first aid to Delong. It was discovered that Delong was breathing and conscious but bleeding from his neck. DC Caron noticed a pistol on the passenger seat of the Honda, and it was secured by DC Kilfeather.
[53] Meanwhile, DC Lee and DC Knapp went to check the area of the shooting and look for victims. They saw blood on the driveway and a male pointed towards 23 Bedford Road and told them that the guy who got shot was inside.
[54] DC Knapp and DC Lee knocked on the door to 23 Bedford Road as the door was locked. They were eventually admitted into the office and saw an individual later identified as Mr. Barrs lying on the floor with blood coming from his leg. Neither officer had ever seen Mr. Barrs before and had not had any prior dealings with him.
Analysis
[55] The issue on this motion is whether summary judgment should be granted dismissing the action. Whether summary judgment should be granted depends on whether there is no genuine issue requiring a trial in relation to whether on September 20, 2016 the police defendants owed a prima facie duty of care to warn Mr. Barrs or otherwise protect him from being the victim of the violent crime which Delong committed that day.
[56] In his statement of claim, Mr. Barrs pleads that in addition to the duties owed by police officers to the public at large, police officers can owe a private law duty of care to some victims of crime. Mr. Barrs pleads that on September 20, 2016, the police defendants effectively used him and members of the community surrounding 23 Bedford Road as “bait” for Delong and that Mr. Barrs was part of a narrow and distinct group of potential victims. Mr. Barrs pleads that it is justifiable to impose a duty of care on the police defendants to protect the individuals in the immediate area by arresting Delong well before he was able to approach Mr. Barrs and fire numerous bullets. Mr. Barrs pleads that there is sufficient proximity between the police defendants and him to impose a duty of care, and there is no policy reason to negate or restrict that duty.
[57] In their statement of defence, the police defendants deny that they used Mr. Barrs or any other citizen of Ontario as “bait” for Delong. The police defendants deny they owed Mr. Barrs an actionable duty to apprehend Delong prior to the shooting, to protect Mr. Barrs from Delong, or to prevent Delong from shooting Mr. Barrs.
Test on a motion for summary judgment
[58] Rule 20.01(3) of the Rules of Civil Procedure provides that a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. Rule 20.04(2)(a) of the Rules of Civil Procedure provides that on such a motion the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim.
[59] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. 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. There will be no genuine issue requiring a trial if the record before the court provides the motion judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure: Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 66.
[60] On a motion for summary judgment by a defendant, the moving party bears the initial onus of demonstrating that there is no genuine issue requiring a trial for its resolution with respect to a claim in a statement of claim. Only after the moving party has discharged its evidentiary burden does the burden shift to the responding party to prove that its claim has a real chance of success: Sanzone v. Schechter, 2016 ONCA 566 at paras. 30 and 32.
[61] On this motion, the plaintiff has not delivered any evidence in response to the motion. The parties on a motion for summary judgment are expected to put their best foot forward by adducing all of the evidence upon which they rely. I am entitled to take it that all of the evidence which would be available at trial has been put forward on this motion.
Legal principles in respect of the imposition of a private duty of care on police officers
[62] The starting point for the duty of care analysis is the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) which declares the principles which apply to provision of police services in Ontario and prescribes the duties of a police officer.
[63] Section 1 of the PSA provides:
Police services shall be provided throughout Ontario in accordance with the following principles:
- The need to ensure the safety and security of all persons and property in Ontario.
- The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.
- The need for co-operation between the providers of police services and the communities they serve.
- The importance of respect for victims of crime and understanding of their needs.
- The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society.
- The need to ensure that police forces are representative of the communities they serve.
[64] Section 42(1) of the PSA provides:
The duties of a police officer include,
(a) preserving the peace; (b) preventing crimes and other offensives and providing assistance and encouragement to other persons and their prevention; (c) assisting victims of crime; (d) apprehending criminals and other offenders and others who may lawfully be taken into custody; (e) laying charges and participating in prosecution; (f) executing warrants that are to be executed by police officers and performing related duties; (g) performing the lawful duties that the chief of police assigns; (h) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws; (i) completing the prescribed training.
[65] Section 42(3) of the PSA provides that “[a] police officer has the powers and duties ascribed to a constable at common law”.
[66] In Project 360 Investments Ltd. v. Toronto Police Services Board, 2009 CarswellOnt 3418 MacDonnell J. held at para. 19 that it is manifest from the statement of principles governing the delivery of police services set forth in s. 1 of the PSA, the duties of police officers set forth in s. 42(1), and the common law powers and duties incorporated by s. 42(3), that the duty of the police is to the public as a whole and not to specific individuals. MacDonnell J. held, citing Edwards v. Law Society of Upper Canada, 2001 SCC 80 at para. 14 and Williams v. Canada (Attorney General), 2009 ONCA 378 at para. 25, that in fulfilling the duties owed to the public as a whole, the police are required to balance a myriad of competing interests the nature of which are inconsistent with the imposition of a private duty of care.
[67] In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, McLachlin C.J.C. described some of the particular circumstances relevant to proximity between the police officer and a particular suspect under investigation, and policy applicable to this relationship. McLachlin C.J.C. observed that the considerations informing the analysis of both proximity and policy would be different in the context of other relationships involving the police, for example, the relationship between the police and a victim and the family of a victim. McLachlin C.J.C. was clear that the decision in Hill deals only with the relationship between the police and a suspect being investigated and, if a new relationship is alleged to attract liability of the police in negligence in a future case, it will be necessary to engage in a fresh proximity analysis sensitive to different considerations which might obtain when police interact with other persons. McLachlin C.J.C. explained that such an approach will ensure that the law of tort is developed in a manner that is sensitive to the benefits of recognizing liability in novel situations where appropriate, but at the same time, sufficiently incremental and gradual to maintain a reasonable degree of certainty in the law. See Hill at para. 27.
[68] In Wellington v. Ontario, 2011 ONCA 274, the appeal involved an action for negligent investigation brought against the Special Investigation Unit of a police force by the victim of a crime committed by police officers. Sharpe J.A., writing for the court, held that the plaintiffs had failed to establish a prima facie duty of care. In his reasons, Sharpe J.A. addressed the more general question of whether the police officers charged with making decisions in the general public interest owe a private law duty of care to specific members of the public and, at para. 44, he confirmed that they do not:
There is now a well-established line of cases standing for the general proposition that public authorities, charged with making decisions in the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public. Discretionary public duties of this nature are “not aimed at or geared to the protection of the private interests of the specific individuals” and do “not give rise to a private law duty sufficient to ground an action in negligence”: [citations omitted].
Sharpe J.A. accepted at para. 20 that the police owe a duty of care to a particular suspect under investigation (citing Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129) and, citing the trial decision in Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [1998] O.J. No. 2681, “to warn a narrow and distinct group of potential victims of a specific threat”.
[69] In Jane Doe, the plaintiff was raped at knife point in her second-floor apartment located in the Church and Wellesley area of downtown Toronto. Jane Doe’s apartment had a balcony which was used by the rapist to gain access to her apartment. At the time, Jane Doe was the fifth suspected victim of a rapist who would later become known as the “Balcony Rapist”. In her reasons following a trial, MacFarland J. (as she then was) found at para. 88 that the police knew earlier in the month of the sexual assault that there was most likely a serial rapist attacking women who lived alone in second and third floor apartments with climbable balconies in the Church/Wellesley area of downtown Toronto who would most certainly attack again. MacFarlane J. wrote at para. 112 that when all of the circumstances are taken and considered together, the evidence suggested to her “that the women [who occupied apartments where the police conducted a stakeout operation] were being used as “bait” to attract a predator whose specific identity then was unknown to the police but whose general and characteristic identity most certainly was”.
[70] MacFarland J. relied upon the decision of Henry J. in the same action reported at Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1989), 58 D.L.R. (4th) 396 (Ont. H.C.) where he dismissed a motion to strike out the statement of claim, and the decision of Moldaver J. (as he then was) on the appeal of that decision to the Divisional Court reported at Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 74 O.R. (2d) 225 (Div. Ct.). In her reasons at para. 164, MacFarland J. quoted at length from the decision of Moldaver J. in the Divisional Court decision who held that the law is clear that in certain circumstances, the police have a duty to warn citizens of foreseeable harm for the purpose of protecting them. Moldaver J. also held that in some circumstances where harm is foreseeable and a special relationship of proximity exists the police might reasonably conclude that a warning ought not be given where, for example, a warning would cause general and unnecessary panic on the part of the public which could lead to greater harm. Moldaver held that a decision not to warn would not excuse a failure to protect. The duty to protect would still remain and would have to be accomplished by other means. Moldaver J. held that on the facts pleaded, assuming they were true, the plaintiff had shown that when the rape occurred she had become part of a narrow and distinct group of potential victims of a foreseeable risk of rape.
[71] MacFarland J. in the trial decision in Jane Doe held that the evidence established that the police officers had linked the four rapes which preceded Jane Doe’s and knew that the rapist would continue to attack women until he was stopped. The police officers knew the rapist was attacking single white women living alone in second and third floor apartments with balconies in the Church/Wellesley area of Toronto. MacFarland J. found on the evidence, at paras. 165-166, that the plaintiff had established a private law duty of care owed to her.
[72] In S.(J.) v. Clement, 1995 CarswellOnt 1703, Lang J. (as she then was) addressed whether Correctional Services Canada owed a duty of care to the plaintiff who was beaten and sexually assaulted by a prisoner who had walked away from a minimum security incarceration, leaving a partial dummy in his bed. On the morning of the sexual assault, the prisoner had failed to appear for his scheduled parole hearing but no search was undertaken for about 45 minutes. Correctional officers then discovered the dummy and other evidence of the prisoner’s departure but did not immediately notify the police, causing a further delay of about 45 minutes before the police were notified. By the time that the police arrived at the victim’s home, the beating and sexual assault had taken place and the prisoner had escaped.
[73] In her reasons addressing whether a duty of care was owed to the plaintiff, Lang J. cited at para. 171 the observation of Moldaver J. of the Divisional Court in Jane Doe that police must not be impeded from their task of investigating and apprehending criminals free from fear of liability to individuals in society who may have been victimized and concluded:
Accordingly, while the police owe a duty to society at large, they do not owe a duty to every individual member of that society who is at risk. In addition to foreseeability, the plaintiff must establish that she is “part of a narrow and distinct group of potential victims, sufficient to support a special relationship of proximity.”
[74] Lang J. relied upon evidence that the correctional facility had custody of a known violent offender who was in a state of anxiety and who, to its knowledge, took out his frustrations by violently assaulting women. Lang J. found that the correctional institution knew of the prisoner’s hatred for women and that he posed a risk to his sister with whom he might be angry and to another woman with whom he was associated. Lang J. concluded that it was reasonably foreseeable in the circumstances that a known violent sexual offender, in the course of his escape, posed a significant risk of violence to any woman he met in the vicinity of the institution. Lang J. held that the plaintiff was a person in sufficient proximity of relationship and the risk to her was foreseeable. A duty of care was owed to the plaintiff.
[75] In Patrong v. Banks et al., 2015 ONSC 3078, one of the plaintiffs was a teen living in Scarborough who was shot in a drive-by shooting by a violent criminal who was known to the police and who the police were watching on the day of the shooting. The shooter was known to be a member of a dangerous criminal gang which was in a gang war with a rival criminal gang. At the time of the shooting, the shooter was being investigated by two of the defendant police officers in connection with previous drive-by shootings in this area of Scarborough. Two court orders had been issued prohibiting the shooter from entering Scarborough. The police knew that if the shooter went to the area in Scarborough where the teenage plaintiff was shot, he would likely be armed and would pose a real threat. A team composed of senior officers of the Toronto Police Service had ordered that if the shooter entered Scarborough he was to be arrested, in a high risk take down if necessary. On the day of the shooting, two surveillance officers watched the shooter head towards the area in Scarborough where the plaintiff lived. They did not arrest the shooter because they were not told by one of the other police defendants of the senior officers’ order to arrest the shooter if he entered Scarborough. The shooter drove to the area in Scarborough where the teenage plaintiff lived and shot him in a drive-by shooting.
[76] The victim and his mother sued. The police defendants moved to strike out the statement of claim on a motion under rule 21 of the Rules of Civil Procedure and it was struck out on this motion heard by Chiappetta J., with leave to amend. Chiappetta J. held on the facts pleaded that it would not be fair and reasonable to require the defendants while conducting their statutory duties to be more mindful of the victim’s legitimate interests than those of all residents of the area in Scarborough where the shooting occurred and the general public. In their amended statement of claim, the plaintiffs pleaded that the police knew the victim of the shooting and believed that he was a gang member or at least shared characteristics with gang members and with the next likely victim of the shooter if he was not arrested. The plaintiffs’ new pleading limited references to prior drive-by shootings that involved victims sharing characteristics of the plaintiff victim to a much smaller territory in the very heart of the area in which the shooter’s gang operated. The plaintiffs pleaded that the victim was used as bait by the police.
[77] After the amended statement of claim was delivered, the police defendants brought another rule 21 motion to strike out the statement of claim. They argued that there was an insufficient relationship of proximity between the plaintiff and the police so as to ground a duty of care. The police defendants’ second motion was heard by Myers J. who reviewed the jurisprudence concerning imposition of a private law duty of care on public authorities including the decision of Moldaver J. of the Divisional Court in Jane Doe, and he held that the amended statement of claim met the requirements of those decisions. [1] Myers J. held that under a private law analysis based on the amended pleading, liability should be available because first, the plaintiff pleads that he was known to the police and used as bait, second, the harm pleaded was reasonably foreseeable and the parties were sufficiently close so that the police ought to have been considering the plaintiffs as being within the recognizable class of people (a limited class in a very defined and limited area where the defendants’ alleged negligence would most foreseeably cause injury) who should be entitled to claim compensation, and third (and according to Myers J. the best approach), balancing all of the relevant factors, it is fair, just, and reasonable that the defendants’ ought to compensate the plaintiffs for the injuries they sustained due to the defendants’ acts. Myers J. held that there was no overriding public policy reason to limit or negate liability. It could not be said to be plain and obvious that the claim as pleaded cannot succeed. Myers J. dismissed the police defendants’ motion. See Patrong at paras. 78-79.
[78] In Project 360, MacDonnell J. considered the tenability of a claim by night club owners in Toronto arising from a shooting incident at the night club. The plaintiffs pleaded that the shooter was known to the police as a gang member who had been involved in jewellery store robberies, as someone engaged in firearms trafficking, and as a person with a history of violent criminal behaviour. They pleaded that for several months prior to the shooting, the shooter was the subject of a police investigation and he was also under wiretap surveillance. The plaintiffs pleaded that the police learned on the day of the shooting that the shooter intended to go to the plaintiffs’ night club armed with a firearm. They did not plead that the police knew of any connection between the shooter and the plaintiffs. The defendants did not dispute, for purposes of the motion, that as of the time the police acquired knowledge of the shooter’s intention to go to the night club armed with a firearm, they were in a position of sufficient proximity to the plaintiffs to give rise to a private law duty of care. The defendants moved to strike the portions of the statement of claim in which the plaintiffs pleaded that before the day of the shooting the police owed a duty of care to the plaintiffs.
[79] MacDonnell J. held that there is not a general private law duty of care owed by the police to individual members of the public and, accordingly, the plaintiffs must plead facts on the basis of which it could be found that a special relationship of proximity existed prior to the day of the shooting. MacDonnell J. found that the plaintiffs had not pleaded that prior to the day of the shooting the police had knowledge that the shooter had any link to the plaintiffs or their nightclub, or that he intended to go there, or that the police had any relationship with the plaintiffs. MacDonnell J. held that based upon the facts pleaded, prior to the day of the shooting, the plaintiffs were in the same position vis-à-vis the police as every other member of the public and he concluded that the plaintiffs had not established a relationship of proximity at the first stage of the proximity analysis and that it was unnecessary to proceed to the second stage: Project 360 at paras. 28-29.
[80] In summary, these authorities establish the general proposition that duties in the nature of those owed by police officers under the PSA to the public as a whole do not give rise to a private law duty of care to members of the public, individually or as members of a group, sufficient to ground an action in negligence. However, in certain circumstances, where foreseeable harm and a special relationship of proximity exists, the police have a duty to take reasonable steps to protect citizens from the consequences of foreseeable harm. Fulfillment of this duty to protect may require the police to warn of foreseeable harm or act in other ways to fulfill their duty to protect, such as by arresting the person who will foreseeably harm the victim.
[81] Where the victim of a crime alleges in a civil action in negligence that a police officer breached a private law duty of care, in order to determine whether the police officer, the alleged wrongdoer, owed a prima facie duty of care to the victim of a crime, the court must determine whether it was reasonably foreseeable that the actions of the alleged wrongdoer would cause harm to the victim and examine the relationship between the victim and the alleged wrongdoer to determine whether the relationship is sufficiently close and direct, in the sense that the actions of the alleged wrongdoer have a close and direct effect on the victim such that the alleged wrongdoer ought to have had the victim in mind as a person potentially harmed. In conducting this proximity analysis, the court considers factors which are diverse and depend on the circumstances of the case. No single rule, factor or definitive list of factors can be applied in every case. See Hill at paras. 22, 24 and 29 and Patrong at paras. 75 and 78.
[82] On this motion, the police defendants do not allege that the harm was not reasonably foreseeable. They focus their submissions on whether there was a special relationship of proximity between Mr. Barrs and the police defendants.
[83] In several cases involving a claim in negligence by a victim of a crime against public authorities courts undertaking a proximity analysis have recognized a private law duty of care in limited circumstances where the plaintiff was, as Sharpe J.A. put in in Wellington, a member of “a narrow and distinct group of potential victims at risk from a specific threat”. See Jane Doe at para. 164-166; Clement at para. 177; and Patrong at para. 78. When I consider the circumstances relevant to the proximity analysis in this case, I take into account how courts in other cases considered the relevant circumstances and conducted the proximity analysis where a victim of a crime alleged that a duty of care was owed by police officers or other public authorities.
Does this motion involve unsettled issues of law such that summary judgment is inappropriate?
[84] Mr. Barrs first submits that this motion involves determination of unsettled issues of law and that summary judgment is not appropriate in such cases. In support of this submission, Mr. Barrs relies upon Romano v. D’Onofrio, [2005] O.J. No. 4969 (C.A.) where the Court of Appeal held that whether words spoken at a public gathering into a microphone constitute libel or slander under the Libel and Slander Act is novel and significant and involves an analysis of the technologies used and perhaps other technologies and the policy behind the distinction between libel and slander. The Court of Appeal at paras. 7-9 held that this type of interpretative analysis should only be done in the context of a full factual record, possibly including appropriate expert evidence, and that the “sketchy” evidence put forward by the moving parties was insufficient.
[85] I do not regard the legal principles which apply to determination of the question of whether the police defendants owed a prima facie duty of care to Mr. Barrs to be novel or unsettled, although the application of these principles certainly depends upon the particular circumstances and policy considerations in a given case, and the circumstances may be novel. In addition, on the motion before me, the evidence put forward by the moving parties, the police defendants, is not sketchy; it is fulsome.
[86] In Aronowicz et al. v. Emtwo Properties Inc. et al. (2010), 2010 ONCA 96, 98 O.R. (3d) 641(C.A.) the Court of Appeal, citing Romano and other authorities, held at para. 71 that although generally courts are reluctant to determine unsettled matters of law at a pre-trial stage – including on motions for summary judgment – on the theory that new or important questions of law should not be determined on an incomplete factual record, a court may determine a question of law on a motion for summary judgment if it has the necessary undisputed factual record before it and where the motion judge is in as good a position as the trial judge to do so and is satisfied the only genuine issue is a question of law.
[87] I am satisfied that the evidentiary record is complete and that I am able to determine whether the police defendants are entitled to summary judgment dismissing the action on the ground that they have established that there is no genuine issue requiring a trial with respect to the claims against them.
Application of legal principles in respect of the imposition of a private duty of care on police officers to the facts of this case
[88] Mr. Barrs submits that when the legal principles with respect to circumstances under which a private law duty of care owed to specific members of the public is imposed on police officers are applied to the facts in evidence on this motion, it is just and fair for the court to impose a duty of care on the police defendants and require them to be held liable in negligence for the injuries Mr. Barrs suffered from being shot by Delong.
[89] Mr. Barrs contends that the following factual circumstances support his submission that the police defendants owed him a duty of care:
a. At the time of the commencement of surveillance, Delong was on recognizance in relation to a break and enter and theft. b. Prior to beginning their surveillance of Delong on September 20, 2016, the defendant officers became aware of Delong’s numerous prior convictions for violent and weapons-related offenses. c. Prior to beginning their surveillance of Delong, the defendant officers were advised that Delong should be considered violent, armed and dangerous. d. Delong was operating a motor vehicle with licence plates that were not registered to the vehicle, and inquiries by the defendant officers revealed that the licence plates were reported missing. e. DC Knapp suspected or believed that Delong could be in possession of a firearm. f. During the surveillance, Delong donned a disguise, and the defendant officers suspected that Delong was planning to rob a nearby bank wearing the disguise. g. The defendant officers were aware of the fact that the area of Taddle Creek Park in downtown Toronto, where the shooting took place, is very busy with pedestrian and vehicle traffic.
[90] Mr. Barrs also relies upon the following additional circumstances:
a. The defendant officers failed to arrest Delong for: i. Break, enter, and commit theft in relation to the robbery at The Brick. ii. Failure to comply with a recognizance contrary to s. 144(3) of the Criminal Code. iii. Operating a motor vehicle with licence plates that were not registered to the vehicle. iv. Wearing a disguise with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code. b. Despite knowing that Delong had a propensity for violent criminal behaviour, none of the defendant officers: i. Had a direct point of observation on Delong. ii. Was able to quickly apprehend Delong before he shot at Mr. Barrs, returned to his vehicle, began driving away and shot another one or two rounds out the window of the vehicle. iii. Was properly positioned or able to intervene when Delong exited his vehicle and began shooting at Mr. Barrs. c. The defendant officers did not take precautions to ensure that they fulfilled their duties to preserve the peace, prevent crimes and apprehend criminals during their surveillance of Delong.
[91] I first address Mr. Barrs’ submissions with respect to the second set of circumstances, that the defendant officers (i) failed to arrest Delong, (ii) failed to properly position themselves to directly observe Delong and intervene when he exited the vehicle and apprehend him before he shot Mr. Barrs, and (iii) did not take precautions to ensure that they fulfilled their duties under the Police Services Act to preserve the peace, prevent crimes and apprehend criminals. These submissions, in substance, are all to the effect that on September 20, 2016, the defendant officers acted, or failed to act, in ways that breached a duty of care owed to Mr. Barrs. In other words, these submissions are directed to question of whether the defendant officers failed to meet the required standard of care.
[92] Both Mr. Barrs and the defendant officers agree that if this motion for summary judgment is dismissed because I conclude that that there a genuine issue requiring a trial in relation to Mr. Barrs’ claims, the action should proceed to trial.
[93] The question of whether the police defendants failed to meet the required standard of care does not need to be answered unless it is determined that they owed a private law duty of care to Mr. Barrs. If the police defendants owed a duty of care to Mr. Barrs on September 20, 2016, the trial judge would need to decide whether they acted or failed to act in ways that did not satisfy the required standard of care. If the police defendants did not owe a private law duty of care to Mr. Barrs, the failure to arrest Delong, to position themselves better to see Mr. Delong and intervene more quickly, or to take other precautions, do not give rise to liability.
[94] With respect to the question of whether the police defendants owed him a private law duty of care, Mr. Barrs submits that he was a member of a narrow and distinct group of persons present in the area of Bedford and Bloor in downtown Toronto on the afternoon of September 20, 2016 who were at risk from a specific threat, being shot or otherwise injured by Delong.
[95] Mr. Barrs submits that this duty of care existed from the time that the police defendants began their surveillance of Delong, and that the police defendants breached this duty throughout the course of the surveillance. This seems to conflict with Mr. Barrs’ submission that the duty of care which existed on September 20, 2016 was owed to a narrow and distinct group of persons present in the Bedford and Bloor area of Toronto, of which he was a member, who were at risk from the specific threat of being shot, which appears to have been intended to bring the factual circumstances of this case into close correspondence with the factual circumstances which gave rise to a duty of care in Jane Doe. If, as Mr. Barrs submits to be the case, the police defendants owed him a duty of care from the time that the surveillance began, the duty could not be limited to one owed to this narrow and distinct group of persons because Delong did not go to the area of Bedford and Bloor until later in the day, and the police defendants could not have known at the beginning of the surveillance where Delong intended to go that day.
[96] In my analysis, I consider the factual circumstances from the perspective of what was known or would reasonably have been known to the police defendants during three periods of time: (i) the period from the beginning of the surveillance until Delong went into a building in South Etobicoke; (ii) the period from when Delong exited this building carrying a back pack and gym bag until he drove to a Tim Horton’s restaurant in downtown Toronto; and (iii) the period from when Delong left the restaurant and put on an orange and yellow construction vest and then a blonde wig and construction helmet until he was in his parked car on Bedford Road, just before the shooting.
[97] Many of the factual circumstances upon which Mr. Barrs relies involve matters which were known to the police defendants at the time the surveillance of Delong commenced or very soon thereafter. By the time that the surveillance began, the officers who were investigating the break-and-enter at The Brick had decided to request approval for surveillance of Delong and the request was granted. The police defendants who were members of the surveillance team knew Delong’s criminal record and that it included violent crimes including those involving firearms, that he had been released on his own recognizance for an alleged break and enter in Peel region, and that Delong’s blood had been identified as being at the crime site at The Brick where a nighttime commercial robbery had been committed. The surveillance request recorded as officer safety concerns that Delong was violent, armed and dangerous, and an escape risk. Det. Couce, who requested surveillance, believed it likely that Delong was still active in committing night-time commercial break-and-enter offenses. The objectives of the surveillance request were to monitor Delong’s movements and identify associates and the address where Delong was currently residing. The purpose of the surveillance was to further the investigation into the break-and-enter at The Brick. When Delong left the courthouse following his court appearance on September 20, 2016, DC Lee made inquiries and learned that the licence plates for the Honda which Delong was driving had been reported missing. Soon after, the police defendants made inquiries and learned that the Honda was registered to a male who resided in Mississauga and that the vehicle had not been reported stolen.
[98] Mr. Barrs contends that Delong was known by the police defendants to be a dangerous threat with a propensity for violence from the time he left the courthouse in Brampton. This was before Delong picked up the backpack and, wearing this backpack, drove to downtown Toronto and donned a disguise. This was before the police defendants speculated about whether Delong was planning to rob a bank. Mr. Barrs submits that Delong could and should have been arrested at any time during the surveillance.
[99] At this stage of the surveillance, the relationship between Mr. Barrs and the police defendants was not close and direct in the sense that the police defendants ought to have had Mr. Barrs in mind as a person who would be potentially harmed if they did not arrest Delong or otherwise prevent him from carrying on with his activities that day. Delong was under investigation for a night-time commercial robbery and the investigating officers, acting under their duties to the public as a whole, exercised their judgment to undertake surveillance on Delong for a legitimate police purpose. The police defendants did not know where Delong intended to go when they began the surveillance. They did not know that he intended to go to the Bedford and Bloor area of Toronto. Delong had come from a court appearance and the surveillance team did not believe that he was carrying a firearm. The police defendants did not know, or have reason to know, that Delong intended to commit a violent crime that afternoon in the Bedford and Bloor area of Toronto or anywhere else. The police defendants did not know where Delong intended to go that day or what he intended to do.
[100] I regard the circumstances which were known to the police defendants at this stage of the surveillance to be similar to those in Project 360 where the person who committed the shooting at a night club was known to the police as a gang member who had been involved in a number of jewellery store robberies, as someone engaged in firearms trafficking, and as a person with a history of violent criminal behaviour. These circumstances, without more, were not sufficient for the court to find that a special relationship of proximity existed between the police and the owners of the nightclub where the shooting occurred.
[101] Mr. Barrs was not in a special relationship of proximity with the police defendants at this stage of the surveillance.
[102] Delong, accompanied by another person in an Audi, travelled to South Etobicoke where Delong entered a building and exited with a back pack and a gym bag. Delong returned in the Audi to where the Honda was parked at Sherway Gardens Mall. Delong took the back pack with him, but not the gym bag. While wearing the back pack, Delong pumped gas into the Honda he drove into downtown Toronto where went into a Tim Horton’s restaurant near the intersection of College Street and Spadina Avenue.
[103] Mr. Barrs places particular importance on the fact that Mr. Barrs went to a building and picked up a back pack, and that he wore this back pack when he was pumping gas, drove to Toronto, sat under a tree in the park, and returned to the Honda. Mr. Barrs submits that because Delong picked up and wore a backpack and did not take it off, the police should have known or suspected that Delong was carrying a firearm in his backpack. Mr. Barrs submits that DC Knapp admitted that he suspected or believed that Delong could be in possession of a firearm, relying upon the following evidence from DC Knapp’s cross-examination:
- Q. In that paragraph, you say, “At no time prior to the shooting did I know or suspect that Delong was in possession of a firearm.” You did suspect that he may be in possession of a firearm. A. I think any target that we follow, especially a -- when I call him a target, a subject of a surveillance request, especially with a record of Mr. Delong’s background, it’s something that’s always considered and in the back of my mind that there’s that potential to be there.
- Q. So, you definitely suspected it. A. I suspected it. I had no knowledge -- I didn’t suspect. I had that belief always in the back of my head that it’s a possibility.
The evidence given by DC Knapp on his cross-examination was not that he suspected or believed that Delong could be in possession of a firearm. His evidence was that although he did not suspect that Delong had a firearm, in the back of his mind, knowing Delong’s record, he believed that it was possible that Delong had a firearm.
[104] The factual circumstances about what the police defendants knew or reasonably should have known at this stage of the surveillance, before Delong suspiciously donned a disguise after he drove to downtown Toronto, differ markedly and materially from the factual circumstances in Jane Doe, Clement, and Patrong, where police officers (or, in Clement, correctional officers) were found to owe a private law duty of care to the plaintiffs. In Jane Doe, there were four prior rapes of single, white women who lived in second or third floor apartments in the Church and Wellesley area of Toronto, and the police believed that the serial rapist would continue to attack women in this area until he was stopped. In Clement, the prisoner who escaped on foot from a correctional facility within walking distance of the plaintiff’s home was a known violent offender who had a hatred for women and was known to take out his frustrations by violently assaulting women. In Patrong, the shooter was a known gang member who was under investigation for previous drive-by shootings in the area of Scarborough where the plaintiff was shot and a team of senior police officers had ordered that the shooter be arrested if he entered Scarborough.
[105] In contrast, in this case, Delong was not being surveilled to see who he would shoot next. He was being surveilled in connection with a property crime investigation. Delong was not known to the police defendants to be a contract killer. The police defendants did not believe that Delong was in possession of a firearm, and they did not suspect that he was planning to use a firearm that day to shoot Mr. Barrs, any other criminal defence lawyer, anyone in the area of Bedford and Bloor, or anyone else. Although Mr. Barrs pleads that he was used as bait in the same way that Jane Doe was used as bait, there are no circumstances from which this may be reasonably inferred. In Jane Doe, the police did not know the identity of the serial rapist and they were trying to catch him. Here, the police defendants were not trying to catch Delong while he committed a crime. They knew who he was and where he was, and they were undertaking surveillance on Delong to identify his associates and his current address for the purpose of furthering a commercial burglary investigation.
[106] Although Delong had driven to downtown Toronto wearing a backpack, at this stage the relationship between Mr. Barrs and the police defendants was not close and direct in the sense that the police defendants ought to have had Mr. Barrs in mind as a person who would be potentially harmed if they did not arrest Delong or otherwise prevent him from carrying on with his activities that day. The police defendants were conducting an authorized surveillance for a proper police purpose. When Delong arrived at the Tim Horton’s at College and Spadina wearing a back pack, the police defendants did not know where else he intended to go that day or what he intended to do. At this stage of the surveillance, Mr. Barrs was in the same position vis-à-vis the police defendants as other members of the public. Mr. Barrs was not in a special relationship of proximity with the police defendants.
[107] After leaving the Tim Horton’s restaurant near the intersection of College Street and Spadina Avenue, Delong got back into the Honda and put on an orange and yellow construction vest. He travelled northbound on Spadina Avenue, then eastbound onto Bloor Street, and then south into BP Nichol Lane where he parked behind a building and emerged wearing a blonde wig and a construction helmet. Delong continued to wear this disguise while he travelled to the area of Lowther Avenue and Admiral Road. He parked the Honda and walked to Taddle Creek Park near Lowther Avenue and Bedford Road. Delong lay under a tree in Taddle Creek Park for a period of time. He was wearing the back pack, running shoes, a construction vest, a yellow construction helmet over a blonde wig, and dark sunglasses. He returned to his vehicle, drove around the neighbourhood, and then parked on the west side of Bedford Road.
[108] Det. Leder’s evidence is that when Delong put on the orange and yellow vest, blonde wig and construction hat, the members of the team did not know what, if anything, he was planning to do. There was speculation amongst the members of the team that Delong might be planning to commit a robbery, as there were a number of financial institutions south of where Delong was situated. Det. Leder updated Det. Couce, the officer in charge of the investigation, and he caused inquiries to be made with police services in Peel, Halton and Toronto to investigate whether there were records of robberies involving Delong or suspects of a similar description. Det. Leder discussed the matter with Det. Couce and they decided that, while Delong’s actions were suspicious and a cause for concern, at that point they did not have sufficient grounds to arrest him in relation to any new offense. They decided that if sufficient grounds developed to arrest Delong in relation to any new offense, Delong would be arrested by the team. Det. Leder discussed a takedown plan with members of the team. No member believed that he had sufficient grounds to arrest Delong at that point in time.
[109] Mr. Barrs submits that when the police defendants made the decision to continue to their surveillance of Delong after he had donned a disguise, there was almost certain danger to the individuals in the immediate area which should have been known to the police defendants because, in addition to their existing knowledge, including that Delong was known to have a history of criminal convictions including those involving firearms, Delong was behaving in a suspicious manner. Mr. Barrs submits that in such circumstances, the police defendants had a duty to either warn the individuals of the risk or adequately protect the individuals from that risk, including Mr. Barrs whose office was directly across the street from where Delong set up to commence shooting. Mr. Barrs submits that the police defendants could have arrested Delong for the offense of wearing a disguise with intent to commit an indictable offence contrary to s. 351(2) of the Criminal Code.
[110] I do not accept Mr. Barrs’ submission that the circumstances known to the police defendants after Delong donned a disguise were such that they should have known that Delong presented almost certain danger to persons in the Bedford and Bloor area of Toronto. On the afternoon of September 20, 2016, until Delong suddenly left the parked Honda and shots were heard, the police defendants did not know that Delong was a specific threat to persons in the immediate vicinity of the shots. Before these events, the police defendants would only have known that Delong presented a specific threat to such persons with the benefit of hindsight.
[111] In Hill, McLachlin C.J.C., writing for the majority, addressed the standard of care in an action in negligence by a suspect against a police officer. McLachlin C.J.C. held at para. 68 that the standard is that of a reasonable police officer in all of the circumstances, and that this standard reflects the realities of police work and “rejects liability by hindsight”. In Fleming v. Ontario, 2018 ONCA 160, the plaintiff had sued the police for wrongful arrest and an issue on the appeal was whether the police were justified in arresting the plaintiff to avoid a breach of the peace. The trial judge had faulted the police officers for decisions taken in the course of a conflict between protesters and the plaintiff. Nordheimer J.A. expressed his opinion that courts should be very cautious about criticizing the tactical decisions of the police in a situation such as that presented on the appeal and, citing Hill, held at para. 58 that hindsight is not a proper basis for imposing liability on the police because, among other things, it fails to reflect the realities of police work.
[112] Although Hill and Fleming are not authorities which specifically address the use of hindsight as part of the proximity analysis to determine whether the police owed a prima facie legal duty of care to a group of potential victims of a specific threat, each is authority for the proposition that hindsight is not a proper basis for imposing liability on the police. The use of hindsight should not inform the proximity analysis.
[113] The circumstances which existed and were reasonably known to the police defendants, even after Delong suspiciously put on a disguise and ended up sitting in the back seat of the Honda and parked on Bedford Road, are materially different from those in Jane Doe, Clement and Patrong where the police officers (or, in Clement, correctional officers) had good reasons to believe, before the victim was harmed by a violent crime, that a distinct group of persons, which included the victim, was at risk from a specific threat.
[114] In contrast, at this stage of the surveillance, even after Delong had engaged in suspicious conduct by donning a blonde wig and other parts of a disguise, laying under a tree in a nearby park, driving around the neighbourhood, and parking on Bedford Road, all wearing the disguise, the police defendants’ speculation that Delong might be planning to commit a robbery was just that. Mr. Barrs’ contention that the police officers should have arrested Delong for wearing a disguise with intent to commit an indictable offense is, in my view, made with the benefit of hindsight because it is based upon the premise that there were circumstances known to the police defendants that showed Delong’s intention to commit an indictable offence. Delong was not known to have previously committed an offense in this area. Despite checks having been made, Delong was not known to have committed offenses in the past while wearing a disguise. The police defendants’ evidence is that the shooting of Mr. Barrs was completely unexpected.
[115] The relationship between Mr. Barrs and the police defendants was not close and direct in the sense that the police defendants ought to have had Mr. Barrs in mind as a person who would be potentially harmed by Delong. There was no special relationship of proximity between the police defendants and Mr. Barrs.
[116] I am satisfied that the police defendants have met their burden of establishing that there is no genuine issue requiring a trial with respect to Mr. Barrs’ claims in this action. The police defendants have established that there is no genuine issue requiring a trial in relation to whether at any time on September 20, 2016, before Delong suddenly exited the Honda and shots were heard, the police defendants were subject to a prima facie private law duty of care to protect Mr. Barrs from being shot by Delong. Mr. Barrs has not shown that his claim has a real chance of success.
Disposition
[117] For these reasons, I allow the police defendants’ motion for summary judgment and I grant judgment dismissing the action.
[118] The parties have each provided a costs outline in support of claims for costs on a partial indemnity scale. I did not hear submissions with respect to costs at the hearing of the motion. If the parties are not able to resolve the question of costs, the police defendants may make written submissions with 20 days. Mr. Barrs may make written responding submissions within 20 days thereafter. If so advised, the police defendants may make brief written reply submissions within 5 days thereafter.
Cavanagh J. Released: July 22, 2019
COURT FILE NO.: CV-18-604990 DATE: 20190722
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: RANDALL J. BARRS Plaintiff – and – HALTON REGIONAL POLICE SERVICE, SERGEANT JEFF LEDER, D.C. COLIN KILFEATHER, D.C. JEFF KNAPP, D.C. JASON CARON, D.C. CHRIS LEE, GRAYSON RANDALL DELONG, JOHN DOE AND JOHN DOE 2 Defendants
REASONS FOR decision Cavanagh J.
Released: July 22, 2019