Court of Appeal for Ontario

Citation: Chmielewski v. Niagara (Police Services Board), 2009 ONCA 51

Date: 20090120

Docket: C47676

Before: Winkler C.J.O., Rosenberg and Moldaver JJ.A.

Between:

Daniel John Chmielewski

Plaintiff (Appellant)

and

The Regional Municipality of Niagara Police Services Board, Niagara Regional Police Service, Gary Nicholls as Chief of the Niagara Regional Police Service, Provincial Weapons Enforcement Unit, Her Majesty the Queen in Right of Ontario, The Honourable David Turnbull, Minister of the Solicitor General, The Honourable David Young, Minister of the Attorney General, Robert T. Frolic, Ian Burbidge, Randy Krieger, Blase H. Wasser, Leslie Winter, John Peatfield and Brian Grigsby, Bert Delcul, Les Cunningham, Lloyd McClure, Andrew Johnson

Defendants (Respondents)

Counsel:

Luigi De Lisio, for the appellant

Sara Blake, for the respondent Her Majesty the Queen in Right of Ontario Terry Marshall, for the respondent the Niagara Regional Police Board et al.

Heard and released orally: January 15, 2009

On appeal from the judgment of Justice Linda Walters of the Superior Court of Justice dated August 10, 2007.

ENDORSEMENT

[1] The trial judge rightly acknowledged that mistakes were made and that this was not the best and most thorough investigation. That said, she found against the appellant on a number of bases. We need only deal with the question of reasonable and probable grounds.

[2] The appellant conceded at trial that his claim for malicious prosecution and negligent investigation depended on a finding that there were no reasonable and probable grounds for the charges. The trial judge made findings of fact that are fatal to that element of the appellant’s case. She found that the discrepancies as to the description of the truck and the perpetrator’s physical description in relation to the November l, 1997 incident were questions for a trier of fact and did not undermine a finding that the police had reasonable and probable grounds.

[3] We note that the alleged discrepancy in the description of the truck was relatively minor; the officer described the truck as a red GM truck whereas the appellant owned a red Chevrolet truck. General Motors of course makes Chevrolet trucks. As to the description of the perpetrator, again the discrepancy was relatively minor given the distance from which the officer was making his observation. There was also the coincidence that several months later the appellant is engaged in an allegedly illegal transaction involving firearms with the same police agent and undercover officer at the appellant’s home.

[4] While the appellant claimed to have had an alibi, that alibi was not disclosed until some two years after the charge was laid. Had the matter gone to trial, it would have been for the trier of fact to determine whether the late disclosed alibi raised a reasonable doubt. It did not in these circumstances undermine the officer’s reasonable and probable grounds.

[5] Finally, at the point when the charge was laid, the police were entitled to rely upon the information from the police agent who knew the appellant and had identified him for the officer.

[6] As for the May 4, 1998 transaction, while there were disputes as to what exactly occurred, it was a tenable position that the appellant was aware that the sale was to the undercover officer who the appellant had acknowledged had produced the money to purchase the firearm and who the appellant also knew did not have a FAC. In that case there were reasonable and probable grounds to find that an offence had been committed. That there were disputes as to what exactly occurred is not uncommon in a criminal investigation and the trier of fact would not be bound to accept the appellant’s version of events.

[7] Accordingly, the appeal is dismissed with costs fixed at a total of $16,000 inclusive of G.S.T. and disbursements: $8,000 to Ms. Blake’s clients and $8,000 to Mr. Marshall’s clients.

Signed: "Winkler C.J.O."

"M. Rosenberg J.A."

"M. J. Moldaver J.A."