Court File and Parties
CITATION: H.A. v. S.M., 2021 ONSC 3170
DIVISIONAL COURT FILE NO.: 10/20
DATE: 20210507
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Fregeau and Penny JJ
BETWEEN:
H.A., M.D., N.A. by her litigation guardian, H.A., M.A. by his litigation guardian, H.A. and N.J.A. by her litigation guardian, H.A. Plaintiff (Respondents)
– and –
S.M., CHIEF OF POLICE AL FREDERICK, WINDSOR POLICE SERVICES BOARD, POLICE OFFICER JOHN DOE (BADGE #539), POLICE OFFICER JANE DOE and POLICE OFFICER JOHN DOE Defendants (Appellants)
Ms. A. James and Ms. M. Churchill, for the Plaintiff/Respondents
Ms. S. Handler, for the Defendants/Appellants
HEARD by Zoom: April 23, 2021
Fregeau, J.
REASONS ON APPEAL
Overview
[1] The Windsor Police Services Board, Chief of Police Al Frederick, Police Officer John Doe (Badge #539), Police Officer Jane Doe and Police Officer John Doe (collectively the “WPS”) moved for summary judgment pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking dismissal of the plaintiffs’ claims in false arrest, false imprisonment, negligent investigation and malicious prosecution.
[2] The summary judgment motion was heard by Justice T. Carey on July 25 and 26, 2018. Pursuant to Reasons released on February 5, 2019, the motions judge dismissed the claims in false arrest and false imprisonment, but dismissed the remainder of the WPS’ motion for summary judgment.
[3] The WPS appeals to this court from the motions judge’s February 5, 2019 Order.
Background
[4] The defendant, S.M., accused the plaintiff, H.A., of sexually assaulting her between July 1, 2004, and December 2007. S.M. also accused H.A. of threatening her on April 2, 2012. On April 2, 2012, H.A. was charged by the WPS with three sexual offences and one count of threatening death.
[5] At the conclusion of the preliminary inquiry, H.A.’s committal to trial was unopposed. H.A. was tried in the Superior Court of Justice before Justice R. Pomerance. H.A. testified at trial and called other evidence. The Crown sought convictions at the end of the trial. On August 14, 2013, Justice Pomerance acquitted H.A. on all charges.
[6] In her Reasons for Judgment, Justice Pomerance found that the Crown’s case “hinged on the complainant’s testimony”. Justice Pomerance described S.M. as an “honest and forthright witness” who appeared sincere in her description of the alleged sexual abuse.
[7] However, Justice Pomerance was “troubled” by the following three aspects of the evidence which she found cast doubt on the credibility of S.M. and the reliability of her evidence:
Evidence establishing that the accused moved to Windsor in January 2004, such that the alleged sexual abuse could not have taken place at the time and location described by S.M.;
Evidence casting doubt on the authenticity of photographs of H.A.’s car, produced by S.M., which S.M. testified that she took on April 3, 2021, the day after H.A.’s arrest and which appeared to depict a tire iron or crowbar on the dashboard of the car; and
Evidence establishing that S.M. attended at H.A.’s workplace on April 2, 2012, and left a note on his car which, at both the preliminary inquiry and trial, S.M. denied doing.
[8] Justice Pomerance concluded that S.M. “was not being truthful” in her testimony at trial when she denied attending at H.A.’s place of employment and placing a note on his car. Justice Pomerance held that “this in turn casts doubt upon the credibility of other aspects of her evidence, including her evidence detailing the sexual assaults”. H.A. was acquitted on all counts.
[9] H.A. and the derivative plaintiffs sued the WPS in false arrest, false imprisonment, negligent investigation and malicious prosecution. On the summary judgment motion, the motions judge found that there was “some evidence capable of providing grounds for H.A.’s arrest” such that there was no genuine issue requiring a trial in false arrest and false imprisonment.
[10] The motions judge declined to dispose of the claims in negligent investigation and malicious prosecution. At para. 44 of his Reasons on Summary Judgment Motion (H.A. et al v. S.M. et al, 2019 ONSC 717), the motions judge held that with respect to the post-arrest investigation, there was a “genuine issue in this case as to whether the police, either intentionally, negligently, or in combination ignored information presented to them post-arrest…that required further investigation that quite possibly would have led them to the same conclusions about the credibility of the complainant that were arrived at by the trial judge”.
[11] At para. 46, the motions judge observed that the presence of reasonable and probable grounds for arrest shifts the onus “to the Plaintiff to show that the police had overwhelming evidence to discredit [an] uncorroborated witness’ evidence”. However, at para. 47, the motions judge held that “a real issue requiring trial is whether the WPS investigation, reasonably conducted by properly qualified investigators, would have resulted in the discovery of the evidence that led Pomerance J. to discredit the complainant”. At para. 50, the motions judge added, “[i]n my view, the standard of care required of the police investigator may not permit them to ignore significant evidence that, as in this case, could have led to overwhelming evidence that would call into question the complainant’s evidence”.
Issues
[12] While the Appellants submit that the issues on this appeal arise from numerous errors made by the motions judge, we find that the appeal can be disposed of by deciding the following issue:
- Did the motions judge err in equating the trial judge’s adverse findings relating to the complainant’s credibility on collateral issues with “overwhelming evidence to discredit the witness”, and in concluding that there was therefore a genuine issue requiring a trial in regard to negligent investigation and malicious prosecution.
The Standard of Review
[13] The determination of the appropriate test for summary judgment – whether there is a genuine issue requiring a trial – is a question of law reviewable on a correctness standard.
Analysis
[14] At issue on this appeal is the post-charge phase of the WPS investigation of S.M.’s allegations against H.A.
[15] As stated in Romanic v. Johnson, 2012 ONSC 3449, at para. 9, to succeed on a claim for negligent investigation, a plaintiff must establish the following:
The proceeding was initiated by the defendant;
The proceeding was terminated in favour of the plaintiff;
The absence of reasonable and probable grounds to commence or continue the proceedings against the plaintiff; and
The defendant did not meet the objective standard of a reasonable police officer in similar circumstances.
[16] The elements of the tort of malicious prosecution were set out by the Supreme Court of Canada in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 53-56. It requires the plaintiff to establish:
The prosecution was initiated by the defendant;
The prosecution was terminated in the plaintiff’s favour;
The absence of reasonable and probable grounds to commence or continue the prosecution; and
Proof that the defendant’s conduct was motivated by malice or an improper purpose.
[17] It is well-established that the existence, or continued existence, of reasonable and probable grounds is fatal to claims in negligent investigation and malicious prosecution. The onus is on the plaintiff to establish an absence of reasonable and probable grounds. Where the evidence of a particular witness is essential to the existence of reasonable and probable grounds, establishing a breach of the standard of care in a negligent investigation claim requires a plaintiff to demonstrate that the police defendants had “overwhelming” evidence discrediting that witness: see J.H. v. Windsor (City) Police Services Board et al., 2017 ONSC 6507, 44 C.C.L.T. (4th) 257.
[18] The Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51, defined the concept of reasonable and probable grounds in the context of an arrest as requiring an investigating officer to subjectively have reasonable and probable grounds on which to base the arrest. The arrest must also be justifiable from an objective point of view but need not demonstrate anything more. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make the arrest: see 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 49. Whether the evidence known to the police or a prosecutor amounts to reasonable and probable grounds is a question of law: see R. v. Sheppard, 2009 SCC 35 at paras. 42-3.
[19] The function of the police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor. Although this requires, to some extent, the weighing of evidence in the course of the investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Barclay, at para. 51.
[20] Regardless of possible frailties in credibility or reliability, the uncorroborated testimony of a single witness may be a sufficient basis upon which to convict, and therefore provides reasonable and probable grounds for an arrest and prosecution. In cases that turn on the credibility of an allegedly unbelievable complainant, where guilt may be proved depending on the trier of fact’s assessment of credibility, our courts have consistently held that the complainant’s credibility is best determined after the complainant has testified and, if he or she chooses, after an accused has also testified. It is up to the court trying the charges to evaluate witnesses, and police generally are not required to weigh and assess the evidence: J.H., at para. 6.
[21] In his Reasons, the motions judge held that there was a genuine issue requiring a trial in regard to negligent investigation and malicious prosecution by concluding that, if the WPS investigation had met the standard of care during the post-arrest phase of the investigation, it may have obtained the same evidence which caused Justice Pomerance to conclude the complainant was not credible.
[22] The motions judge correctly noted that the plaintiffs are required to show that the police had “overwhelming evidence” to discredit the complainant’s uncorroborated evidence. However, we find that the motions judge erred in that he failed to correctly apply that test and, in doing so, failed to consider whether such evidence would have vitiated the reasonable and probable grounds the WPS had when H.A. was charged.
[23] Justice Pomerance described the complainant as an “honest and forthright witness” who “appeared sincere in her descriptions of the sexual abuse”. Justice Pomerance found that “there was a compelling level of detail in the sexual acts she described”, and that the complainant “conveyed a level of emotion that seemed consistent with recollection of a traumatic event” and “appeared to be offering an honest recollection”.
[24] Justice Pomerance then reviewed the evidence pertaining to the three collateral issues, “all of which cast doubt on the reliability and in some instances the credibility of the complainant’s evidence”. Justice Pomerance essentially concluded that the complainant lied under oath when she denied attending H.A.’s place of employment on April 2, 2012.
[25] It is obvious from Justice Pomerance’s Reasons for Judgment that the complainant’s lack of truthfulness as to this collateral issue created doubt in her mind about the complainant’s credibility when testifying about the sexual assaults.
[26] The fact that Justice Pomerance, after conducting a credibility assessment of the complainant, was left with a reasonable doubt as a result of the complainant’s evidence on a collateral issue does not and cannot equate with “overwhelming evidence” discrediting the complainant on the core issue such that the reasonable and probable grounds of the WPS were vitiated.
[27] The continued existence of reasonable and probable grounds is fatal to claims in negligent investigation and malicious prosecution. When the police have reasonable and probable grounds to arrest, the onus is on the plaintiffs to establish that reasonable and probable grounds have been vitiated. The plaintiffs have failed to discharge this onus. It is open to this court to grant summary judgment and dismiss the plaintiffs’ claims when the motions judge incorrectly failed to do so.
[28] The motions judge’s Order dated February 5, 2019, is set aside. Judgment is granted dismissing the plaintiffs’ remaining claims in negligent investigation and malicious prosecution.
Costs
[29] The appellants have suggested that an award of costs of this appeal to the successful party in the amount of $38,000.00, inclusive of fees, disbursements and H.S.T. is appropriate. The respondents submit that costs in the amount of $30,000.00 all in is appropriate. We accept the submission of the respondents. The respondents shall pay to the appellants costs for this appeal in the amount of $30,000.00, inclusive of fees, disbursements and H.S.T.
Justice J. Fregeau
I agree _______________________________
Justice M. Penny
I agree _______________________________
Justice M. Dambrot
Released: May 7, 2021
CITATION: H.A. v. S.M., 2021 ONSC 3170
DIVISIONAL COURT FILE NO.: 10/20
DATE: 20210507
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H.A., M.D., N.A. by her litigation guardian, H.A., M.A. by his litigation guardian, H.A. and N.J.A. by her litigation guardian, H.A.
BETWEEN:
S.M., CHIEF OF POLICE AL FREDERICK, WINDSOR POLICE SERVICES BOARD, POLICE OFFICER JOHN DOE (BADGE #539), POLICE OFFICER JANE DOE and POLICE OFFICER JOHN DOE
REASONS ON APPEAL
JUSTICE FREGEAU
Released: May 7, 2021