Magas v. Pasanen, 2009 ONCA 302
CITATION: Magas v. Pasanen, 2009 ONCA 302
Date: 20090415
Docket: C46504
COURT OF APPEAL FOR ONTARIO
Simmons, Blair and Juriansz JJ.A.
BETWEEN
Diane Magas
Appellant
and
Lori Pasanen and the Regional Municipality of Ottawa-Carleton Police Services Board
Respondent
AND BETWEEN
Diane Magas
Appellant
and
John Monette and the Regional Municipality of Ottawa-Carleton Police Services Board
Respondent
AND BETWEEN
Diane Magas
Appellant
and
Her Majesty the Queen in Right of Ontario, The Attorney General of Ontario and Desmond McGarry
Respondent
Diane (Magas) Condo, acting in person
Mark O. Charron and Jaye Hooper, for the respondents Lori Pasanen, John Monette and the Regional Municipality of Ottawa-Carleton Police Services Board
Walter Myrka and Tamara D. Barclay, for the respondents Her Majesty the Queen in Right of Ontario, the Attorney General of Ontario and Desmond McGarry
Heard: January 26, 2009
On appeal from the judgments of Justice W. J. Lloyd Brennan of the Superior Court of Justice dated December 12, 2006.
BY THE COURT:
I. Introduction
[1] The appellant appeals from three judgments dismissing her actions against the respondents in which she claimed damages for negligent investigation, malicious prosecution, abuse of process, false imprisonment and breaches of her Charter rights.
[2] For the reasons that follow, we would dismiss the appeal.
II. Background
[3] The appellant is a lawyer. Around 1994, she became involved in a romantic relationship with a Mr. Condo. The appellant also developed a friendly relationship with Mr. Condo’s then wife, Ms. McGuire, who knew about her husband’s ongoing relationship with the appellant. The three remained involved in this unusual domestic relationship for about five years. The relationship provides the backdrop for the events that unfolded and the subsequent police investigation and charges against the appellant.
[4] In April 1999, the relationship between Mr. Condo and his wife began to unravel. A series of events occurred during April and May 1999, that culminated in Mr. Condo being charged and eventually convicted of various serious criminal offences, including criminal harassment, kidnapping and assault causing bodily harm against Ms. McGuire.
[5] On June 4, 1999, Detective Pasanen served an information on the appellant for the purpose of obtaining a peace bond against her under s. 810 of the Criminal Code, R.S.C. 1985, c. C-46 in relation to Ms. McGuire. The Crown later withdrew this information on June 25, 1999.
[6] On September 2, 1999, Detective Monette arrested the appellant for criminal harassment of Ms. McGuire. The appellant was briefly detained in custody before being released on conditions. Although jointly charged with Mr. Condo, the appellant obtained a severance and, ultimately was discharged at the preliminary inquiry. Assistant Crown attorney McGarry had carriage of this prosecution.
[7] The appellant’s three actions against the various respondents were heard together. Following a twenty-three day trial, Brennan J. dismissed the appellant's claims. Among other findings, the trial judge held:
• The decision to proceed with a s. 810 peace bond information was a reasonable and balanced decision made after appropriate consultation.
• The decision to withdraw the s. 810 information was appropriate and was taken in order to proceed with the joint criminal harassment charge.
• The appellant engaged in conduct prohibited by s. 264 of the Criminal Code as a party to Mr. Condo’s conduct.
• Although the appellant was discharged based on the evidence led at the preliminary inquiry, the elements of criminal harassment were made out against the appellant at the civil trial.
• All of the officers who investigated Mr. Condo’s harassment of Ms. McGuire and the appellant’s part in it demonstrated careful and prudent conduct.
• By the time the decisions were made to prosecute or continue the prosecution of the criminal harassment charge, the respondents had abundant admissible evidence on which to proceed.
• Mr. McGarry directed Detective Monette to obtain a warrant for the appellant’s arrest so she could be released on conditions. The appellant was to be arrested at the courthouse so she could be processed immediately. Although that did not occur because she did not attend court as expected, she was detained for only a couple of hours at the police station and was released on terms substantially as intended.
• The appellant failed to call evidence at trial demonstrating actual malice and, in the light of his other findings, the trial judge declined to draw an inference of malice.
III. Discussion
[8] The appellant raises numerous issues on appeal including: insufficiency of reasons, improper admission of evidence, misapprehension of evidence, and misstatement and misapplication of the applicable legal tests, including the test for negligent investigation.
[9] We would not give effect to the appellant’s grounds of appeal. At their core, the issues raised call into question the reasonableness of the trial judge’s findings of fact. In our view, there was admissible evidence at trial capable of supporting the trial judge’s core findings. Viewed in this context, even if the legal test for negligent investigation relied on by the trial judge has been superseded by Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, the trial judge’s finding that the police officers acted reasonably in the circumstances supports his decision to dismiss the actions.
[10] In addressing the question of the reasonableness of the trial judge’s findings, it is not necessary that we determine whether the trial judge improperly relied on the appellant’s involvement in various small claims court proceedings against Ms. McGuire. Nor is it necessary that we determine whether the trial judge improperly relied on evidence of telephone calls made to Ms. McGuire from the appellant’s telephone number. Even leaving aside the evidence relating to these matters, there was sufficient admissible evidence at trial to support the trial judge’s core conclusions.
[11] In particular, there was evidence at trial indicating that as of the date the s. 810 information was served on the appellant (June 4, 1999), the police had information from Ms. McGuire’s lawyer that Ms. McGuire feared the appellant.
[12] Further, the police had information that the appellant attended at Ms. McGuire’s office on May 28, 1999 with Mr. Condo’s two children and waited in a waiting room while Mr. Condo’s 9-year-old daughter gave Ms. McGuire a copy of an interim custody order[^1] and asked Ms. McGuire to write a note giving permission for the children to leave the Ottawa-Carleton Region with their father and the appellant. As of May 28, 1999, Mr. Condo had been charged with criminal harassment of Ms. McGuire and he was subject to a recognizance prohibiting him from communicating with the appellant “for the purpose of transmitting any form of communication on behalf of Richard Condo.” In other words, Mr. Condo was specifically prohibited from using the appellant as a conduit for communication with Ms. McGuire.
[13] Particularly in light of the ages of the children, the only reasonable inference arising from the May 28, 1999 incident is that the appellant took the children to Ms. McGuire’s office to facilitate Mr. Condo’s use of the children as a means of communicating with Ms. McGuire contrary to the terms of his recognizance.
[14] In our view, this evidence was sufficient to support the trial judge’s conclusion concerning the decision to lay the s. 810 information. The fact that Ms. McGuire obtained a non-communication order against the appellant in the matrimonial proceedings between Ms. McGuire and Mr. Condo on June 4, 1999, the same day that the s. 810 information was served, does not detract from this conclusion. Mr. Condo kidnapped and assaulted Ms. McGuire on May 31, 1999. In the face of these events and the May 28, 1999 incident, the police were justified in seeking an order under the Criminal Code and any failure on their part to make inquiries about or consider the status of the civil proceedings does not reflect on the adequacy of the police investigation.
[15] Further, at the time the criminal harassment charge was laid against the appellant, the police were also aware of a letter from Mr. Condo that was delivered to Ms. McGuire by a female on May 5, 1999. As of May 5, 1999, Mr. Condo was subject to a recognizance that prohibited him from communicating directly or indirectly with Ms. McGuire except through his lawyer. The appellant does not dispute the fact that she delivered the letter but argues that the police did not have evidence that she delivered it when the criminal harassment charge was laid and therefore were not entitled to rely on this incident as a basis for the charge. We do not accept this submission. Given the history between these parties, it was reasonable for the police to infer that the appellant had delivered the letter and that the appellant “at the very least was a party to this ongoing harassment by facilitation.”
[16] The fact that Ms. McGuire did not give evidence at the preliminary inquiry indicating that she was afraid of the appellant does not detract from the trial judge’s conclusions. Ms. McGuire did not testify at the civil trial. It was open to the trial judge to draw an inference, as he did, that Ms. McGuire was afraid of the appellant based on the whole of the evidence at the civil trial and in the context of the unusual domestic relationship between the three individuals. In any event, the trial judge’s decision to dismiss the actions was premised, at least in part, on a finding that the appellant was a party to Mr. Condo’s harassment of Ms. McGuire. Accordingly, a finding that Ms. McGuire was afraid of the appellant was not essential to the trial judge’s decision to dismiss the actions.
[17] In our opinion, the trial judge’s reasons are sufficient to explain the basis of his decision and to permit appellate review. The fact that the trial judge could have weighed the evidence differently or made different findings of credibility does not undermine his findings.
[18] Based on our review, the appellant has not demonstrated a palpable and overriding error in the trial judge's findings of fact; nor has she demonstrated a reversible error of law.
IV. Disposition
[19] The appeal is accordingly dismissed with costs payable to the respondents Lori Pasenen, John Monette and the Regional Municipality of Ottawa-Carleton Police Services Board in the amount of $12,500, and to Her Majesty the Queen in Right of Ontario, the Attorney General of Ontario and Desmond McGarry in the amount of $12, 500, inclusive of disbursements and applicable G.S.T.
RELEASED: April 15, 2009 “JS”
“Janet Simmons J.A.”
“R. A. Blair J.A.”
“R.B. Juriansz J.A.”
[^1]: At the time of this incident, there was an interim custody order in place directing that neither Mr. Condo nor Ms. McGuire remove the children from the Ottawa-Carleton Region without the written permission of the other.