CITATION: Jeremiah v. Toronto (Police Services Board), 2009 ONCA 671

DATE: 20090923

DOCKET: C47442

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and MacFarland JJ.A.

BETWEEN:

Jennifer Jeremiah

Appellant/Plaintiff

and

Toronto Police Services Board and P.C. Everett Elliott

Respondents/Defendants

Ernest J. Guiste, for the appellant

Doug Smith and Rebecca L. Bush, for the respondents

Heard and released orally: August 25, 2009

On appeal from the judgment of Justice Robert A. Riopelle of the Superior Court of Justice dated June 18, 2007.

ENDORSEMENT

[1] The appellant seeks to review a jury verdict which resulted in her action against the Toronto Police Services Board and P.C. Elliott for malicious prosecution and negligent investigation being dismissed. The appellant argues that the fundamental error in the charge was the trial judge’s instruction that the jury need not know exactly what words were in fact spoken.

[2] Counsel argues that there is disagreement among the witnesses as to what the specific words were. The words are ambiguous and cannot in law amount to a threat to cause bodily harm.

[3] We see no error in the trial judge’s charge in this respect. The issue before this jury was different from the issue in the criminal prosecution. Here the issue is whether the police officer had reasonable and probable grounds to charge the plaintiff with the offence.

[4] He also argues that the trial judge erred in telling the jury that the police are not even required to get the accused person’s version of events.

[5] In our view, this was merely a reference to an accused person’s right to remain silent. This can be seen from the following sentence in the charge and we see no error.

[6] The third error of which complaint is made is where the trial judge relates the plaintiff’s theory of the case to the jury and where at the conclusion of the summary expresses his view that he thinks the plaintiff’s position is “just plain wrong”.

[7] In our view, the trial judge is obliged to instruct the jury on the applicable law. The plaintiff’s theory of the case was simply wrong in law. The focus is not whether the words spoken are capable in law constituting the offence charged but, rather, the focus is whether the investigating officer had reasonable and probable grounds to lay the charge he did. We agree with the trial judge and see no error.

[8] Fourth, the appellant takes issue with the trial judge’s comment that it was not the role of the jury to second guess the officer’s decision to arrest the plaintiff, even if the jury profoundly disagrees with that decision. In our view, as will be seen from a reading of the charge in this section as a whole, the trial judge here is attempting to focus the jury on their task which was “to determine whether it was unreasonable for the officer to have formed his belief in the guilt of the accused.” The appellant argues the charge in this respect limits the jury’s opportunity to come to a different conclusion from that of the officer. We disagree. The trial judge had to focus this jury on the task at hand and we see no error in this aspect of the charge.

[9] Finally, the appellant argues the trial judge erred in permitting the defence to call Crown Attorney Spiegel, the Crown in charge of the prosecution. His evidence related to the statement read into the record when the charges against the plaintiff were withdrawn. The Crown at the time said that although there were reasonable and probable grounds to lay the charge, the public interest required that the charge be withdrawn.

[10] In our view, this evidence answered the plaintiff’s argument that the withdrawal of the criminal charge is some evidence of a lack of reasonable and probable grounds.

[11] While the charge was not a perfect one, we are satisfied that it was a fair one overall. The jury understood their task and their verdict is well supported by the evidence. We would not interfere and the appeal is dismissed.

[12] As to the cross-appeal, in our view, there was no basis here upon which to deny the successful parties their costs of these proceedings. The trial judge considered but one factor, the impecuniosity of the plaintiff, which the plaintiff says is unchallenged although there was some evidence before the court that she had received a settlement from her employer arising out of these same circumstances.

[13] In our view, the trial judge must consider all relevant factors and while impecuniosity is certainly an important one it can’t be the only one. The defendant’s bill of costs is in excess of $226,000 on a partial indemnity scale. Here there were serious allegations of misconduct on the part of the defendants some of which were not withdrawn until after the charge to the jury. This was a four-week jury trial. There was no novel point of law involved. In our view, the plaintiff’s impecuniosity is clearly a factor which here would merit some reduction in the costs sought. The defendant’s have proposed the costs of $50,000 would be appropriate in all the circumstances. In our view, there must be some sanction in terms of costs in the circumstances.

[14] We would grant leave to appeal, allow the appeal and order the plaintiff to pay the defendants’ costs fixed in the sum of $40,000 all inclusive of disbursements and GST.

[15] At the request of counsel for the appellant the costs of the appeal and cross-appeal are reserved. Counsel for the appellant is to file brief written submissions by September 4, 2009 and the respondent, if desired, by September 11, 2009.

[16] We have since received the written submissions of counsel in relation to the costs of the appeal. The respondents are entitled to their costs fixed in the sum of $7,500.00 inclusive of disbursements and G.S.T.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”