Court of Appeal for Ontario
Date: 2017-06-19 Docket: C61940
Judges: Blair, MacFarland and Hourigan JJ.A.
Between
Rafat Parsaei Plaintiff (Appellant)
and
Toronto Police Services Board and Andrew MacPhail Defendants (Respondents)
Counsel
James C. Morton, for the Appellant
Rebecca L. Bush and Kathryn Shani, for the Respondents
Heard: June 15, 2017
On appeal from the order of Justice E.M. Stewart of the Superior Court of Justice, dated March 24, 2016, with reasons reported at 2016 ONSC 1013.
By the Court:
Decision
[1] Introduction
Ms. Parsaei appeals from the summary judgement granted by Justice Stewart dismissing her action against the Toronto Police Services Board and Detective Constable Andrew MacPhail for wrongful arrest and negligent investigation of criminal charges of which she was ultimately acquitted.
Background
[2] The Criminal Charges
The appellant and two other women – Linda Pitney and Carole Tovell – were charged criminally in connection with (i) a series of threatening letters that were posted around, and mailed to residents who lived in, the area of Perth Avenue Public School in Toronto, (ii) a series of related hostile and harassing phone calls made to staff and the principal of the school and to members of the Toronto District School Board, and (iii) an harassing letter sent to a member of the Board.
[3] The Circumstances
All of this appears to have been prompted by the appellant's complaints about the way in which her son was being treated by school staff and by an overreaction on the part of the three women regarding who won, or should have won, a spelling bee at the school (the student who was declared the winner, or the appellant's son). Ms. Pitney was apparently retained to act as the appellant's "family advocate" in respect of these concerns. It is not clear what the purpose of Ms. Tovell's involvement was.
[4] The Investigation and Charges
Detective Constable MacPhail was the member of the Toronto Police Services assigned to investigate the threats. Following the investigation, all three women were charged with a number of related offences. Ms. Pitney was charged with criminal harassment. Ms. Tovell was charged with criminal harassment, threatening death, and intimidation. The appellant was charged with threatening death and intimidation.
[5] The Trial
After several attempts to resolve the charges through out-of-court interventions, the matters came on for trial before Justice Cavion of the Ontario Court of Justice, in May 2010. For reasons involving her health, the charges against Ms. Tovell were severed and were to be dealt with at a later date.[1] The trial of Ms. Pitney and the appellant proceeded. Ms. Pitney was convicted, although not on all counts. The appellant was acquitted but required to enter into a Peace Bond.
[6] The Civil Actions
Thereafter, each of the appellant, Ms. Pitney and Ms. Tovell launched civil actions against the Toronto Police Services Board, Detective Constable MacPhail and others.[2] This led to the defendants' motions for summary judgment that resulted in the judgment under appeal.[3]
[7] The Motion Judge's Decision
The motion judge held that she was able to grant summary judgment because there was no genuine issue for trial. The absence of reasonable and probable grounds is an essential element of the torts of wrongful arrest and negligent investigation. Based on the evidence before her, she was able to find that Det. Cst. MacPhail had reasonable and probable grounds to believe that the appellant had committed the offences with which she was charged. Accordingly, the appellant's claim could not succeed.
Discussion
[8] The Appellant's Arguments
The appellant argues that the motion judge erred (a) in finding there was no genuine issue for trial because "the case was at an early stage and contested facts [had] not …. been subjected to cross examination"; and (b) in finding that the police had reasonable and probable grounds to lay the charges in the first place.
[9] Initial Assessment
Neither of these submissions is persuasive in our view.
[10] The Summary Judgment Standard
The first submission overlooks the direction provided by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, at paras. 49 and 66, that summary judgment is to be granted where the record enables to motion judge to reach a fair and just determination on the merits and to do so in a timely, more affordable and proportionate manner. Mr. Morton did not pursue this submission in oral argument, but left us to consider the arguments pertaining to as set out in the appellant's factum.
[11] The Motion Judge's Findings
The motion judge was satisfied that she could reach a fair and just determination, given the extensive record she had before her and that record supports her decision. On a motion for summary judgment each party is obliged to put its best case forward. It is no answer for the appellant to say that contested facts had not been subject to cross-examination; she had ample time to cross-examine Det. Cst. MacPhail on his affidavit, but did not do so.
[12] Evidence of Reasonable and Probable Grounds
The appellant's second submission is equally flawed. There was ample evidence to support the motion judge's finding that the police had reasonable and probable grounds to arrest the appellant and to lay the charges. That evidence included (i) the exhaustive affidavit of Det. Cst. MacPhail setting out in detail the particulars of the investigation and the documentation obtained, together with a lengthy summary of the facts supporting his belief that reasonable and probable grounds existed; (ii) the transcripts of the preliminary hearing and the trial; (iii) the information that Det. Cst. MacPhail had consulted two Crown attorneys prior to laying the charges and had been advised that there was ample evidence to support his doing so; and (iv) the reasons of Justice Cavion following the trial.
[13] Justice Cavion's Findings
Indeed, the findings of Justice Cavion alone, even in acquitting the appellant – while not binding – would support a determination that reasonable and probable grounds existing. In concluding his analysis of the evidence, he said:
I am not for a moment saying the two women are innocent. In Scotland they have three verdicts, guilty, not guilty and not proven. To me this is a case of just not proven. I am deeply suspicious but I am simply not convinced beyond a reasonable doubt, so on these charges they are acquitted. [Emphasis added]
[14] Reasonable Suspicion vs. Mere Suspicion
"Mere suspicion" is not enough to constitute reasonable and probable grounds, but Mr. Morton concedes that "reasonable suspicion" has been found to do so. We read Justice Cavion's analogy with the Scottish situation and his "deeply suspicious" comment as signalling that he was of the view that the basis for the Crown's case went well beyond mere suspicion, although it was insufficient to establish guilt beyond a reasonable doubt.
[15] The Evidence Supporting Reasonable and Probable Grounds
The motion judge summarized the evidence that in her view established why the police had reasonable and probable grounds to arrest and charge the appellant in the 13-point summary set out at para. 36 of her reasons. They support he findings. Particularly telling, in our view – as the nexus linking the appellant to the other circumstances – are the inculpatory documents seized at her residence and the fact that a copy of her son's school calendar, admittedly containing her handwritten check marks, was found among a pile of copies of one of the groups of threatening letters distributed around the school.
[16] Criminal Liability vs. Civil Liability
Demonstrating reasonable and probable grounds in support of an arrest and the laying of charges is not the same thing as the Crown having to prove the factual and mental elements of an offence necessary to establish guilt beyond a reasonable doubt. The mistake in conflating the issues pertaining to criminal responsibility and those pertaining to the civil liability of police is well-summarized by the British Columbia Court of Appeal in Richardson v. Vancouver (City), 2006 BCCA 36 – a case involving an allegedly wrongful arrest on a charge of obstructing justice – at para. 20:
The plaintiff runs together his criminal liability with the officer's civil liability (and the City's vicarious liability) for the tort of wrongful arrest. They each have a different set of legal rules and procedures; they must be treated separately to avoid the kind of confused thinking manifest in the plaintiff's argument. Many lawful arrests may ultimately result in an acquittal. If an acquittal were to create exposure to tort liability, the power of arrest would be radically curtailed. There is no logical relationship between the criminal and civil determinations; they are each aimed a different questions: "Did the accused obstruct?" is not the same as "Did the officer have reasonable and probable grounds to believe he did?"
[17] Application to This Case
Those comments apply with equal validity in this case.
Disposition
[18] Decision
The appeal is dismissed. In arriving at this disposition we rely more fully on the reasons of the motion judge, with which we fully agree.
Released: June 19, 2017
R.A. Blair J.A. J. MacFarland J.A. C.W. Hourigan J.A.
Footnotes
[1] After the trials of the appellant and Ms. Pitney were concluded, the Crown withdrew the charges against Ms. Tovell.
[2] The other defendants are no longer involved in the proceedings.
[3] Justice Stewart granted summary judgment dismissing the Pitney and Tovell actions as well. Those orders are separately under appeal to this Court.