DATE: 2004-12-01

DOCKET: C39834 M31911

COURT OF APPEAL FOR ONTARIO

RE:

SANDRA SULLIVAN, JAMES JANUCH, CATHERINE JANUCH By her Litigation Guardian Sandra Sullivan (Appellants/Plaintiffs) – and – DURHAM REGIONAL POLICE SERVICES BOARD (Respondent/Defendant)

BEFORE:

GOUDGE, GILLESE AND JURIANSZ JJ.A.

COUNSEL:

Osborne G. Barnwell

for the appellant

Kirk F. Stevens

for the respondent

HEARD:

November 22, 2004

On appeal from the order of Justice John R. Jennings of the Superior Court of Justice, sitting with a jury, dated March 5, 2003 and on appeal from the costs order of Justice John R. Jennings dated March 27, 2003.

E N D O R S E M E N T

[1] The appellant complains that the respondent’s material was filed late and that it should therefore be struck. We disagree. While we do not condone the late filing, the appellant was advised early on that this would happen and it was clear that the respondent was opposing her appeal. The material was filed in time for proper preparation by the appellant and no prejudice resulted in counsel’s ability to argue the appeal.

[2] The appellant says that the fresh evidence discloses conduct of counsel at trial that warrants relief in this court. Assuming the fresh evidence to be admissible, we disagree. The trial judge was aware of the conduct and was in a position to assess its effect and whether the trial could continue fairly. He evidently was of the view that it could. We in this court are in no position to disagree with this.

[3] Nor did the trial judge err in his charge on s. 9 of the Charter. It reflects the law in R. v. Collins and s. 438 of the Criminal Code and sufficiently reviews the relevant evidence for the jury.

[4] Likewise there is no reversible error in the charge on s. 12. Again, we see no error in the legal standard or the summary of the evidence presented to the jury by the trial judge. The jury’s verdict reflects that they accepted the respondent’s evidence and rejected that of the appellant as to when she got her clothes back.

[5] Equally we can see no reversible error in relation to s. 8. There was evidence in the record as to why the nondiscretionary policy requiring searches of all persons being lodged in the cells was necessary and that these concerns applied to the appellant. There was no contrary evidence. Having found there was no Charter breach, the jury did not have to respond to the question of whether the search was in bad faith. This is not a case where it is necessary for this court to consider the argument that discretion is a required element of any strip search policy for it to be reasonable. Moreover the record in this case is inadequate to do so.

[6] As for the appellant’s medical history, it would have been better if the trial judge had instructed the jury that the appellant’s prior history was admitted on the question of damages and that it should confine the use of that evidence to that issue. However, we are not persuaded that the absence of such a caution resulted in any injustice requiring a new trial. Indeed, no such caution was requested.

[7] Nor is there any basis to infer from the jury’s answer as to the quantum of aggravated damages that it concluded that there was some malice. The wording of the question required the jury to assess these damages irrespective of its answers to the other questions.

[8] Finally, we do not see this verdict to be unreasonable. The trial was, in essence, all about credibility. The jury clearly accepted the evidence of the respondent and rejected that of the appellant. On this basis, there was overwhelming evidence to support all of the jury’s findings.

[9] In summary, the appeal on liability must be dismissed. There is, therefore, no need to deal with the damage issues raised on the appeal.

[10] The appellant also seeks to appeal the costs award at trial. The trial judge read all the submissions including those filed late and then confirmed his costs finding. We therefore see no procedural unfairness. Nor is there any basis to interfere with his discretion as to the quantum of costs. That result turned on the application of Rule 49.

[11] The appeal as to liability is dismissed. Leave to appeal costs is granted but the appeal as to costs is also dismissed. Costs of the appeal to the respondent fixed in the amount of $20,000 on a partial indemnity basis, inclusive of disbursements and G.S.T.

“S.T. Goudge J.A.”

“E.E. Gillese J.A.”

“R.G. Juriansz J.A.”