Superior Court of Justice
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETERSEN G. KELLMAN
Plaintiff
– and –
SANDRA IVERSON, TORONTO POLICE SERVICES BOARD, ROBERT MACINNIS, VALERIE TRAYNOR and STEPHEN BUTT
Defendants
Ernest J. Guiste, for the Plaintiff
Douglas Smith and C. Lougheed, for the Defendants
HEARD: February 27, 28, 29, March 1, 2, 6, 7 and 9, 2012
B. P. O’marra j.
reasons for decision
1In the early hours of April 27, 2003 members of Toronto Police Service were dispatched to the scene of a reported domestic violence incident. Based on what those officers heard and saw they arrested Petersen Kellman and escorted him to a police station in custody. He was released on bail with conditions the following day. On July 28, 2004 all charges against him were withdrawn by the Crown.
2Before leaving the residence in the early hours of April 27, 2003 the police told Sandra Iverson that she would be charged with assaulting Mr. Kellman. She was given a Form 9 document under the Criminal Code that directed her to appear in Court on a particular date. The police failed to follow up on her charge. An Information was never sworn out against her.
the action
3The Plaintiff Kellman is a black man of African-Canadian racial background. Sandra Iverson is a woman of European/Caucasian racial background. They had been married for some 18 months before April 27, 2003. Mr. Kellman claims that Ms. Iverson had been physically and verbally abusive to him in the past and also in the early hours of April 27, 2003 before the police arrived.
4The Plaintiff claims that he was a victim of racial and gender discrimination based on the way members of the Toronto Police Service handled (or mishandled) the investigation into the actions of himself and Ms. Iverson. He also claims that the police were negligent and that he was a victim of malicious prosecution.
5The Amended Statement of Claim listed Defendants, including Sandra Iverson and P.C. Valerie Traynor. Before trial the action was discontinued as against Ms. Iverson and P.C. Traynor died. The claim at trial proceeded against Officers Robert MacInnis, Stephen Butt and also the Toronto Police Services Board.
What Information did the Police Have Regarding Potential Criminal Charges Against Mr. Kellman?
April 27, 2003
2:38 a.m. – Sandy Iverson calls 911. She was crying and seemed very upset on the tape played at trial. She said her husband tried to kill her and tried to choke her. She also said he had been drinking.
2:44 a.m. – Officers Butt and Traynor arrive at scene. Iverson was upset and crying. Traynor receives the following information from Iverson:
husband started to harass and follow her around the house attempting to provoke an argument
she tried to go to bed to remove herself from the argument
husband continued to harass her and continue the argument
she was in her bed when husband said he was going to kill her
while she laid on the bed he pinched her nose closed and placed his hand over her mouth making it difficult for her to breath
she struggled for air and her husband then released her
4:10 – 4:47 a.m. – Iverson is interviewed at police station and provides the following information:
She pushed her husband and he replied “don’t push me.” She then slapped him and he grabbed her, put his arm across her chest and said if she ever touched him again he was going to kill her. She then slapped him again and he threw her onto the bed. He held one hand over her nose so that she could not breathe. She was scared. She became frustrated and slapped him on the top of his head. He then grabbed her in some kind of hold and said that if she ever hit again he was going to break her neck and then he applied pressure. He let go and she slapped him again on the side of the head, chest or arm. He then grabbed her, pinned her down and held his hands over her nose and mouth so she could not breath. She started to panic and was really scared. At some point he grabbed a pillow and covered her face. She struggled to get free and he said he was going to fucking kill her.
6As a result of the information received from Sandy Iverson, Det. Cst. MacInnis believed there were reasonable and probable grounds to charge Mr. Kellman with Uttering Death Threats and Assault contrary to the Criminal Code. Officer MacInnis also directed that Sandy Iverson be charged with Assault and be released on a Form 9 (Appearance Notice).
7Petersen Kellman testified that Ms. Iverson had been physically and verbally abusive to him in the past. He described how he would grab her arms, held her down and pull her hair to get her to stop. The physical abuse by Iverson continued and they sought marriage counselling. He never considered calling the police because he wanted the marriage to work.
8On the evening of April 26, 2003 Kellman and Iverson had guests attend their home. Both of them consumed alcohol and after the guests left they began to argue. He testified she attacked him with her fists.
9His testimony as to what he did in response included the following in chief:
he put his hands up and said “don’t hit me or I’ll kill you”
we rolled on the bed – he tried to get her hands – “at one point I had my hand over her mouth”
she screamed for help – he put a pillow over her face – she said she couldn’t breathe – he took the pillow off
she went to the phone – he heard her say “he tried to kill me” – he told her “you’ll get an Oscar for that.”
10In cross examination Kellman indicated the following:
when she came at me I said “don’t hit me or I’ll kill you” – he may have said he would break her neck although that doesn’t sound like him
he put the pillow over her face and she said she couldn’t breathe
the incident was short with lots of yelling
the claim
11The Amended Statement of Claim seeks damages for the following:
Malicious Prosecution based on a lack of reasonable and probable grounds and improper motivation in laying the criminal charges;
Breach of Charter section 7 and 15 based on racial and gender discrimination; and
Negligence based on a failure/refusal to carry out a thorough and competent investigation.
malicious prosecution
12The four necessary elements that must be proven for malicious prosecution are as follows:
(a) Proceedings must have been initiated by the defendant
(b) Proceedings must have been terminated in favour of the plaintiff
(c) Absence of reasonable and probable cause
(d) Malice, or a primary purpose other than that of carrying the law into effect
Nelles v. Ontario 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170 at para 42.
13Malicious prosecution requires more than recklessness or gross negligence. There must be evidence of a wilful and intentional effort on the part of the defendant to abuse or distort its proper role within the criminal justice system.
Proulx v. Quebec (Attorney General) 2001 SCC 66, [2001] 3 S.C.R. 9, para. 35. Westell v. Waterloo (Region) Police Services Board [1999] O.J. No. 1245 (Gen. Div.) at para. 39.
14A failed prosecution does not without more – much more – give rise to a viable claim for prosecutorial wrongdoing.
Proulx (supra) at para. 39.
reasonable and probable grounds
15Reasonable and probable grounds have both a subjective and objective component. An arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. The police are not required to establish a prima facie case for conviction before making the arrest.
R. v. Storrey 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, para. 17.
16There is no requirement that an arrest not be made until a police investigation is completed. A police officer is not required to exhaust all possible avenues of investigation or inquiry, or interview all potential witnesses prior to an arrest.
MacPhee v. Ottawa Police Services Board [2003] O.J. No. 3786 (S.C.J.) at para. 37.
17The onus on the plaintiff is to demonstrate that the facts known to the officer pointed so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt.
Cellini v. Ontario (Attorney General) [2000] O.J. No. 180 (S.C.J.) at para. 25.
18The police are not obligated to weigh and determine the validity of various versions of events and render judgment before arresting or charging the accused.
Wiles v. Ontario (Police Complaints Commissioner) [1997] O.J. No. 6274 (Gen. Div.) at para. 47.
failure of the police to get mr. kellman’s version of events
19A significant theme in the Plaintiff’s case is that the police failed or neglected to seek Mr. Kellman’s version of events before deciding to arrest and charge him with criminal offences.
20The Plaintiff claims the police investigation was thus incomplete and was a significant factor in his receiving unfair and discriminatory treatment.
negligence – duty of care
21The police owe a duty of care to those suspected of having committed a crime.
Hill v. Hamilton-Wentworth 2007 SCC 41, [2007] S.C.J. No. 41 at para. 27.
22Victims and their families are not owed a duty of care with respect to police investigations except to warn a narrow and distinct group of potential victims of a specific threat.
Wellington v. Ontario 2011 ONCA 274, [2011] O.J. No. 1615 (C.A.) at para. 20.
23For a claim for negligent investigation to succeed it must be established that the negligence caused the charges to be laid in circumstances where reasonable and probable grounds did not exist. Failure by the plaintiff to establish absence of reasonable and probable grounds is fatal to a claim for negligent investigation.
Miguna v. Toronto Police Services Board et at. 2007 CanLII 3674 (ON SC), [2007] O.J. No. 512 (S.C.J.) at para. 49 rev’d on other grounds 2008 ONCA 799, [2008] O.J. No. 4784.
Wiche v. Ontario [2001] O.J. No. 1850 (S.C.J.) at para. 17.
24The Plaintiff claims that the failure by the police to seek his version of events led to a flawed and unfair investigation. He claims this resulted from gender and racial discrimination against him as a black male alleged to have assaulted a white woman in a domestic context.
25The evidence at trial was that the police did not ask Mr. Kellman for his version of events and he did not offer any. In re-examination he testified that if he had been asked by P.C. Butt to give his side of the story he probably would not have done so. Notwithstanding that the Plaintiff claims the police should have sought his version of events. It is necessary to consider that issue in light of the following:
Charter obligations on the police;
Charter rights of Mr. Kellman; and
decisions made by Mr. Kellman.
26The following events all occurred in the early hours of April 27, 2003:
At 2:50 a.m. P.C. Traynor arrests Mr. Kellman. I find she had reasonable grounds to do so. She handcuffed Mr. Kellman and P.C. Butt conducted a field (cursory) search.
At 2:56 a.m. based on the arrest and detention the police were obliged to advise Mr. Kellman of his rights under s. 10(b) of the Charter. P.C. Butt did so and also advised Mr. Kellman of his right to remain silent. Mr. Kellman advised that he understood what was read to him and also that he was not sure whether he wished to call a lawyer at that time. That comment triggered an obligation on the police to hold off on any investigative questions of Mr. Kellman. Further, the police were obligated to facilitate his contact with counsel in private provided Mr. Kellman was reasonably diligent in doing so. There is no suggestion that Mr. Kellman was not reasonably diligent in seeking contact with counsel.
At 3:18 a.m. Mr. Kellman was paraded before the Sergeant at the station and a further search was conducted before he was lodged in a criminal investigation office. He was again advised of his 10(b) rights under the Charter.
At 3:34 a.m. P.C. Butt attempted to facilitate access to counsel by calling the 1-800 number for Duty Counsel. He left a voice message requesting a call back.
At 4:30 a.m. P.C. Butt placed a further call to Duty Counsel and left a message since there had not yet been a response. Shortly thereafter Det. Cst. MacInnis advised P.C. Butt that Mr. Kellman would be held in custody for a show cause bail hearing.
At 5:48 a.m. P.C. Butt was directed by Det. Cst. MacInnis to conduct a more thorough search of Mr. Kellman before he was to be in contact with any other detainees. Mr. Kellman was apprehensive about this and requested to be allowed to contact the British consulate before such a search. P.C. Butt facilitated his call to the consulate before the search was completed.
At 6:25 a.m. Mr. Kellman was permitted to place a phone call to a specific lawyer in private. The lawyer was not available so he left a voice message.
27I find there was nothing improper or unfair in the police not asking Mr. Kellman for his version of events. The police clearly had reasonable grounds to arrest him at 2:50 a.m. He was then properly advised of his Charter and common law rights which he understood. Mr. Kellman was reasonably diligent in seeking to contact counsel. P.C. Butt fulfilled his Charter obligation to facilitate access to counsel by placing calls to Duty Counsel. Mr. Kellman was not successful in contacting counsel’s office until 6:25 a.m. and sometime later he actually spoke to counsel by phone in private. Mr. Kellman exercised his right to remain silent and the police respected his Charter right not to be asked any investigative questions so long as he pursued access to counsel in a reasonably diligent fashion (which he did).
28Absent a clear and informed waiver or exhaustion of efforts to contact counsel it would have been highly improper for the police to ask Mr. Kellman for his version of events.
29I fail to see how it was unfair or negligent for the police not to ask Mr. Kellman for his version of event in the circumstances at the time of his arrest and during his time at the police station.
30The Charter obligations on the police and the rights of a person under arrest or detention trump any policy or directive that provides for the interview of both parties involved in a domestic violence incident.
31It is significant to note the very candid evidence of Mr. Kellman at trial when he said he would not likely have given his version of events if asked. He also testified that during the incident preceding the arrival of police his words and actions included the following:
in response or retaliation to being slapped by Iverson he said “don’t hit me or I’ll kill you”
at one point he had his hand over her mouth
she screamed for help
he put a pillow over her face and she said she couldn’t breath
he may have said he would break her neck although that does not sound like him
32At trial Mr. Kellman testified he told P.C. Butt at the house that “she attacked me and things got out of hand”. P.C. Butt does not recall hearing that and testified he would have noted it (which he did not). Even if that comment was in fact made by Mr. Kellman it would not have negated the allegations to that point that he threatened to choke or to kill her.
33Det. Cst. MacInnis testified that if he had known or received this information from Mr. Kellman at the station it would not have changed his decision to charge him with Assault and Utter Death Threat. In fact the version of events provided by Mr. Kellman at trial mirrors in significant aspects the initial 911 call from Sandy Iverson and her subsequent interview at the police station.
decision to hold the plaintiff for a show cause hearing
34The Plaintiff claims this decision was part of the discriminatory treatment he received from the police. Det. Cst. MacInnis made the decision to hold Mr. Kellman for a bail hearing. The Plaintiff testified that the Crown opposed his release.
35Det. MacInnis based his decision to require a bail hearing on the particular circumstances of the case, including the following:
that Mr. Kellman pursued Ms. Iverson throughout the house during the incident
nature of threatening to kill her or break her neck
her stated fear
he was the dominant aggressor
36The bail hearing did not proceed on April 27, 2003. Counsel attended with him but the matter was adjourned to April 28, 2003 since the proposed surety was not available. On April 28, 2003 the Crown consented to a form of release on conditions with a surety. The Plaintiff agreed with the terms and was released. The terms included that he not contact Ms. Iverson directly or indirectly and that he not return to the matrimonial home.
37On July 28, 2003 on consent the Crown agreed to vary the conditions to permit contact through counsel.
38The Plaintiff claims that the decision to hold him for a show cause was unfair and discriminatory. He cites the fact that Ms. Iverson was not subject to any terms or conditions and in fact was never prosecuted. I will comment further on as to the police dealings with Ms. Iverson. In my view the decision to hold Mr. Kellman for a bail hearing based on the concerns expressed by Det. Cst. MacInnis was reasonable and appropriate.
failure to follow up/through on charge against sandra iverson
39The evidence/information that Iverson had slapped Mr. Kellman came from her interview at the police station. She was cautioned by police as to the consequences of giving false information but she was not advised of the provisions of s. 10(b) of the Charter or her right to remain silent. The Plaintiff did not tell the police of historical assaults by her on him. The Plaintiff claims he told P.C. Butt that she attacked him and things got out of hand. The Officer had no recollection or note of such a comment by Mr. Kellman.
40It is clear from the evidence that there was an intention by the police to charge Iverson with Assault Level One.
Det. Cst. MacInnis decided he had grounds to charge Iverson with Assault after interviewing her at the station. His notes from that day and evidence at trial reflect this. He typed up the synopsis for the charges against Mr. Kellman and refers to “the victim was charged with assault and released”:
Officer Pignatelli was directed by Det. Cst. MacInnis to issue a Form 9 Release to Iverson. This document stated she was charged with Assault and directed her to appear in Court on May 27, 2003 and for fingerprints on May 20, 2003.
A transcript of the consent release of Mr. Kellman in Court on April 28, 2003 includes a reference to Iverson slapping him and that both had been charged.
Mr. Kellman was aware that Iverson attended Court but her name was not on the list.
Officers MacInnis and Pignatelli both testified that they thought the other was to follow up on the charge against Iverson. That would involve preparing a Crown Brief for disclosure and having a sworn Information before the Court. In fact neither did this work and her charge never got on to a Court docket and was never dealt with.
Kathleen Caldwell is now a Justice of the Ontario Court. In 2003 she was an Assistant Crown Attorney and dealt with the Judicial Pretrial on the charges against Mr. Kellman. The scheduled date was October 9, 2003. The material she reviewed referred to Ms. Iverson also being charged with assault. Ms. Caldwell dealt with Det. Cst. MacInnis in preparation for the pretrial and learned that in fact an Information had never been sworn out against Ms. Iverson. The Crown erroneously thought that more than six months had elapsed since the incident giving rise to the charges. In fact six months would not expire until October 27, 2003.
Det. Cst. MacInnis testified it was his administrative error to not follow up on the necessary documents for the charge against Iverson. He told the Crown that he had intended to charge Iverson. If the charge of Assault Level One were to be laid more than 6 months after the event the Crown would have to proceed by Indictment.
The decision whether to lay the charge after the passage of time lay with the police. The Crown and Officer MacInnis discussed the matter and decided in the particular circumstances to not lay the charge and explore a resolution of the Kellman charges with counsel.
The charges against Kellman were ultimately withdrawn by the Crown on July 28, 2004 after he had attended counselling sessions.
41The performance of the police regarding the necessary and timely documentation of the charge against Ms. Iverson was exceedingly poor. Det. Cst. MacInnis testified he was embarrassed then and now when he realized the documents were not prepared. There was serious miscommunication between he and Officer Pignatelli but it was ultimately Officer MacInnis who should have followed through. While the police performance on that matter was deeply flawed I do not find there was any intent not to charge Ms. Iverson or to favour her unjustly over Mr. Kellman. The references to the charge against Iverson in police notebooks, the Kellman synopsis and the transcript of the consent release in court on April 28, 2003 contraindicate a desire or intent not to charge her.
42The interaction between the Crown and Officer MacInnis preceding and at the judicial pretrial confirms they both thought Iverson had been charged over six months before with assault. While a charge could have been laid at the time of the judicial pretrial the joint decision was not to charge Iverson and proceed to explore a resolution wherein Mr. Kellman would not be prosecuted further. I find as a fact that the police and Crown in their respective roles exercised their discretion in a reasonable manner. Further, I accept their evidence that they were not motivated by racial or gender discrimination against Mr. Kellman. Even if Ms. Iverson had been properly charged and processed for assault from the onset the available evidence pointed to Mr. Kellman as the dominant aggressor.
denial of equality
43The Plaintiff claims a violation of his equality rights contrary to sections 7 and 15 of the Charter. Specifically he claims he was the victim of racial and gender discrimination. The statement of claim asserts “that the officers are willing to charge individuals like Mr. Kellman with a criminal office on account of his gender and racial background … where they would not charge a similar (sic) situated white woman or man in the same circumstances. The white woman or man would have received a proper and competent investigation of the allegations before his/her rights were circumscribed and he/she would not be denied his/her lawful right to repel force with equal proportionate force in self defence.”
44Mr. Kellman testified in a very articulate and candid manner. He readily admitted that he said and did some very serious things to his wife during the incident that led to the 911 call and arrival of the police. I accept his evidence that he genuinely believes that he was the victim of racial/gender discrimination. However, that does not make out the claim. The Court must assess the conduct of the police as to whether the decision to arrest and charge Mr. Kellman was motivated by racial/gender bias.
45I have determined earlier in this Judgment that the Plaintiff has failed to prove that the criminal charges were not based on reasonable and probable grounds. I accept the evidence that Det. Cst. MacInnis had the requisite subjective belief and that the objective aspect is also met. After the charges were laid they were assessed by a member of the Crown’s office in the ordinary course who determined that there was a reasonable prospect of conviction based on the available evidence. The charges were later withdrawn after ongoing resolution discussions between counsel.
46Has the Plaintiff proven there was racial/gender discrimination that motivated or caused the charges to be laid? Notwithstanding my decision that there were reasonable and probable grounds for the charges I will address that issue.
47Counsel for the Plaintiff submits that the Toronto Police Services Board violated the section 15 rights of Mr. Kellman in that it knew or should have known there was the potential for racial profiling or gender discrimination. In support of that proposition he cited the Supreme Court of Canada decision in Odhavji.
Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at para. 66.
The Plaintiff submits that the Board has submitted no evidence to meet the claim.
48In fact, the evidence on this trial is that the Board over time has enacted significant policies and directives that address the potential for racial profiling and gender discrimination by police officers. Officer MacInnis acknowledged in his testimony that some of the policies and directives were not followed in this case due to resource pressures and exigencies of the investigation.
49There were clearly reasonable and probable grounds to arrest and charge Mr. Kellman with criminal offences. The cumulative effect of the failure to follow certain policies and directives related to domestic assault matters did not contravene the Charter provisions of equality and fundamental justice. As I have mentioned earlier some of the directives conflict with Charter rights and obligations (i.e., best practice to interview both parties to get their version of events balanced against a detainee’s right to counsel and right to silence).
50If any of the decisions regarding the arrest, charging and detention of Mr. Kellman were based on improper considerations of race or gender, there would be a breach of equality rights under the Charter.
51Racial discrimination and gender bias are particularly sinister if they are found to have motivated persons in authority. In determining whether they were factors it is necessary to draw inferences. It is the exceptional case where there is a blatant declaration of such improper intent. Courts must be sensitive to the need to carefully assess the evidence and draw reasonable inferences as to whether there has been a violation of equality rights.
52Equality rights do not mean that everyone is treated in an identical fashion. Different treatment does not necessarily equate to discrimination depending on the particular facts. Mr. Kellman’s claim in effect is that since he and his wife physically struck each other and that she struck him first they should have been treated identically. He ties this in with the notion of self defence. On this basis he goes on to contrast his treatment by police, including being held for a bail hearing, with Ms. Iverson being told of a charge but never being prosecuted.
53The evidence obtained by the police on the 911 call and subsequent interviews of Ms. Iverson did not justify treating both parties in the same fashion. Even if Ms. Iverson slapped or otherwise struck Mr. Kellman first he significantly escalated the level of violence and threats by his words and actions. At trial the Plaintiff admitted that he threatened to kill her and effectively tried to smother her in reaction to the slaps. He said he may have said he could break her neck. His right of self defence would be limited in law to proportional force. The police were entitled and obliged to deal with his potential criminal liability on a scale far in excess of her actions.
54Ms. Iverson told police there was a level of persistent pursuit in his actions towards her and that she was frightened of him.
55The criminal allegation against Ms. Iverson would have been Assault Level 1 and that is the charge the police intended to lay. The decision that morning to release her on a Form 9 to appear on a later date was a reasonable and fair one based on the allegations and her personal antecedents.
56The evidence provided reasonable grounds to charge Mr. Kellman with Utter Death Treat and Assault. In the particular circumstances it was reasonable and appropriate for the police to decide that he should be held for a show cause hearing.
57The follow up by police on the charge against Ms. Iverson was substandard and deeply flawed. The fumble on that charge started with the miscommunication between Officers MacInnis and Pignatelli as to who would prepare the Crown Brief and swear to the Information. It was almost six months later that the extent of the lack of action on that charge became known. I do not find that the systemic and administrative failures in regard to her charge were motivated by racial or gender discrimination.
58The different treatment of Mr. Kellman and Ms. Iverson was based on the information and evidence known to police at the time. The different treatment was not based on gender or race.
damages
59I have found that none of the claims have been made out.
60If I had found that the claim for malicious prosecution had been made out I would have ordered the following damages:
Reimbursement of legal fees and disbursements - $12,000
General damages - $30,000
61If the claim based on the negligent investigation of the allegations against Mr. Kellman had been made out I would have ordered general damages of $20,000.
62If I had found that there had been breaches of the Charter I would have ordered damages of $10,000.
63I will consider brief written submissions as to costs (no more than 3 pages) to be submitted to Judicial Administration within 14 days of the release of these Reasons.
B. P. O’Marra J.
Released: June 6, 2012
COURT FILE NO.: 06-CV-313259 PD3
DATE: 20120606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETERSEN G. KELLMAN
Plaintiff
– and –
SANDRA IVERSON, TORONTO POLICE SERVICES BOARD, ROBERT MACINNIS, VALERIE TRAYNOR and STEPHEN BUTT
Defendants
REASONS FOR DECISION
B. P. O’Marra J.
Released: June 6, 2012
