ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Larry Curley and Erin Porter and Six Nations Police Commission, Marwood White and Timothy Bomberry, 2014 ONSC 1394

COURT FILE NO.: 11-31191 HAM

DATE: 2014-April -7

RE: Landon Curley and Erin Porter and Six Nations Police Commission, Marwood White & Timothy Bomberry

BEFORE: The Honourable Mr. Justice D.J. Gordon

HEARD: February 18, 2014

COUNSEL:
L. Honickman, for the Defendants

N. R. Jones, for the Plaintiffs

The Honourable Mr. Justice D. J. Gordon

ENDORSEMENT

[1] In their motion, dated May 13, 2013, the defendants seek an order requiring the plaintiffs to post security for costs, in the amount of $96, 264.20 for the costs already incurred and estimated costs up to and including the trial.

[2] For the reasons that follow, the motion is dismissed.

BACKGROUND

[3] Landon Curley and Erin Porter reside in Ohsweken, on the Six Nations Reserve. They are in a common-law relationship.

[4] Marwood White and Timothy Bomberry are police officers with the Six Nations Police Service and are employed by the Six Nations Police Commission.

[5] On January 10, 2010, Sgt. Bomberry and Cst. White were investigating a complaint regarding the assault of Ross Martin. Mr. Martin had been seriously injured in an altercation with a number of individuals. Four persons, along with Mr. Martin, were subsequently charged with various Criminal Code offences. They pleaded or were found guilty.

[6] The officers determined the assault had occurred at 2099 2nd Line Road, on the Six Nations Reserve. They attended at this property and, assisted by Cst. Robert Lewis and Cst. Jeff Tait from the Ontario Provincial Police entered the residence without a warrant.

[7] The plaintiffs were sleeping in one of the bedrooms. Officers made demands for the plaintiffs to show themselves. An incident occurred. Mr. Curley was placed in handcuffs. He resisted and struck Cst. Lewis. Cst. White used a Taser on Mr. Curley. Mr. Curley was placed under arrest, removed from the residence and taken to the police station. He was released from custody several hours later. Mr. Curley was never charged with an offence. At the time, the officers concluded Mr. Curley had not been involved in the assault of Mr. Martin.

[8] On February 16, 2010, Mr. Curley submitted a written complaint to the Six Nations Police Chief regarding the conduct of Cst. White specifically, and all officers generally, with respect to the incident. The complaint was referred to the Ontario Provincial Police for investigation.

[9] Four senior officers were involved in this investigation. Advice was provided by a Crown counsel. Following the investigation, Sgt. Bomberry and Cst. White were charged with Criminal Code offences, namely unlawful entry, forcible confinement, assault and aggravated assault.

[10] In October 2012, defence counsel brought a motion before the trial judge seeking a stay of the criminal prosecution as an abuse of process. The motion was dismissed.

[11] The trial took place in January 2013. The jury returned a verdict of not guilty on all counts. Sgt. Bomberry and Cst. White did not testify at their trial. Mr. Curley and Ms. Porter did.

LITIGATION

[12] The statement of claim was issued on November 4, 2011. The plaintiffs seek damages as a result of the aforementioned incident. The following paragraphs in their statement of claim identify the basis of their claim:

(6) On or about the 10th day of January, 2010, the plaintiff, Landon Curley, was asleep in the home of Gwen White on Second Line in the Town of Ohsweken. At that time, the defendants, Marwood White and Timothy Bomberry, entered the said house without authority and arrested the plaintiff, Landon Curley. During the course of the said arrest, the said defendants assaulted and battered the plaintiff, Landon Curley, using fists, truncheon and Tasers.

(7) The said defendants then took the plaintiff, Landon Curley, to a police station and placed him in custody.

(8) The plaintiff was released from custody by other employees of the defendant, Six Nations Police Commission, after approximately 12 hours in custody.

(9) The plaintiff, Landon Curley, says, and the fact is that he was never informed of the reason for his arrest. Furthermore, the plaintiff says that he was never charged with any offence of any sort pursuant to the said arrest.

(10) The plaintiff, Landon Curley states, and the fact is that he had done nothing to justify an arrest of himself.

(11) The plaintiffs’ state, and the fact is that the aforesaid arrest and subsequent imprisonment constituted wrongful arrest and imprisonment as the defendants, Marwood White and Timothy Bomberry had no reasonable grounds to believe that the plaintiff, Landon Curley had committed any offence.

(12) The plaintiffs’ further state that if the aforesaid arrest was a lawful one, which is not admitted but denied, the defendants, Marwood White and Timothy Bomberry used far more force than was necessary.

(13) In addition, the plaintiffs state, and the fact is, that the arrest and continuing imprisonment of the plaintiff, Landon Curley, were as a result of the negligence of the defendant Officers, Marwood White and Timothy Bomberry, for whose negligence the defendant, Six Nations Police Commission, is at law responsible. The particulars of the negligence of the said defendants, include the following:

(a) they arrested the plaintiff, Landon Curley, when they did not have reasonable grounds to believe that any offence had been committed;

(b) they acted with indifference to the consequence of arresting the said

Plaintiff;

(c) they failed to conduct an adequate investigation or any investigation;

(d) they failed to consider all available evidence in deciding whether they

had reasonable grounds to believe an offence had been committed;

(e) they failed to perform their duties to the plaintiff, Landon Curley, to conduct a careful investigation before arresting him;

(f) they acted with indifference to the consequences of continuing to imprison the plaintiff, Landon Curley.

[13] The initial statement of defence was dated January 13, 2012. The defendants were granted leave to amend their statement of defence by order granted March 11, 2013. The defendants deny the plaintiffs allegations in considerable detail.

[14] Paragraph 26 of the amended statement of defence is essentially the same as in the former document. With reference to Mr. Curley being released from custody, the defendants’ state:

26…at the time, it was then determined that Mr. Curley was not involved in the assault of Mr. Martin.

The motions judge declined to allow the defendants to withdraw this admission.

[15] The amendments to the statement of defence are said to result from the evidence tendered on the criminal trial. Of particular interest is paragraph 7. It says:

7. All of the defendants state, and the fact is, that Mr. Curley was an active participant in the brutal and aggravated assault of Mr. Martin on January 10, 2010. Mr. Curley was involved in kicking and stomping on Mr. Martin and was a participant of a gang of at least eight individuals involved in the melee. Ms. Porter witnessed Mr. Curley’s participation in the beating. Ms. Porter physically assaulted Ronnie Lee Styres, who was attempting to rescue Mr. Martin from the assaults.

STATUS OF LAWSUIT

[16] As previously stated, the statement of claim was issued on November 4, 2011 and the initial statement of defence was dated January 13, 2012.

[17] The defendants’ motion for leave to amend their statement of defence was dated January 13, 2012.

[18] The defendants’ motion for leave to amend their statement of defence was heard on March 21, 2013. Whitten, J. granted leave to amend and, as well, awarded costs to the defendants of $2500.00. The cost award was subsequently paid. The order also directed the parties to adhere to a timetable as follows:

Remaining Step to be Completed
By which party
Date to be completed by

Exchange of affidavits of documents
All Parties
April 30th, 2013

WAGG Motion for the plaintiffs to access Crown Disclosure
Plaintiffs
May 30th, 2013

Motion for security of costs
Defendants
June 30th, 2013

Discoveries to be completed
All Parties
October 31st, 2013

Answer to undertakings to be provided and all Motions related to discoveries to be completed
All Parties
January 31st, 2014

Action to be set down for trial
All Parties
March 1st, 2014

[19] On this motion, the defendants rely on the affidavit of David Elmaleh, sworn May 15, 2013. The plaintiffs responding affidavit is from Maxine Birdsell, sworn June 20, 2013. No further affidavit evidence was tendered, despite the delay in scheduling the hearing. Hence, it is assumed the affidavits reflect the situation then and now.

[20] Two matters are of concern in terms of the timetable and this motion, quite apart from the delay.

[21] First, the defendants have not served a sworn affidavit of documents. Plaintiffs’ counsel refers to the unsworn affidavit of documents, received April 11, 2013, as incomplete in terms of Schedule A and B documents.

[22] Second, the plaintiffs Rule 30.10 motion for disclosure from Crown counsel regarding the prosecution was adjourned without date on May 28, 2013. The adjournment was to allow the Crown Law Office time to investigate and determine its position.

[23] While this is not a summary judgment motion under Rule 20, I am asked to consider, to some degree, the merits of the plaintiffs claim.

[24] Examinations for discovery have not occurred. There is no evidence from Sgt. Bomberry or Cst. White. Disclosure appears to be incomplete. The contents of the Crown brief have not been produced.

[25] When the remedy sought is pursuant to Rule 56.01 (1)(e), I am of the view all relevant evidence ought to be provided. In this regard, the Rule 30.10 motion should have been completed. Indeed, that was contemplated in the timetable. In result, I am asked to decide this motion on a limited evidentiary record. Evidence is available that would be relevant. Speculation is not appropriate.

AFFIDAVITS

[26] A further comment about the material on this motion is warranted. The deponents of the aforementioned affidavits are associate lawyers with the law firms representing the parties.

[27] In a criminal case, a person charged with an offence is entitled to exercise the right to silence. No such privilege exists in a civil case.

[28] Far too often, affidavits from non-parties are used on motions. While such a practice may be convenient, it should only occur on procedural or non-contentious matters.

[29] Rule 56.01 is, in part, a procedural provision; however, when the relief is sought under Rule 56.01 (1) (e), some inquiry is made as to the merits of the claim. This is a highly contentious dispute. The evidence, therefore, ought to come from a party, not a lawyer. It is not appropriate to shield a party from examination or challenge by tendering an affidavit from a non-party.

LEGAL PRINCIPLES

[30] Rule 56.01 provides, in part, as follows:

(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,….

(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or

[31] The legal principles, as they apply to this motion, may be summarized in the following manner:

(i) In Rule 56.01, “may” indicates the relief is discretionary while “just” is mandatory: See Pare v. Vahdat (2002), 27 C.P.C. (5th) 324 (Ont. S.C.J.); and 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1996), 5 C.P.C. (4th) 260 (Ont. S.C.J.).

(ii) “As is just” allows the court to consider the merits of the plaintiff’s claim but such cannot be treated as determinative at this early stage: See John Wink Ltd. V. Sico Inc., (1987), 1987 4299 (ON SC), 57 O.R. (2d) 705 (Ont. H.C.J.); and Chachula v. Baille, (2004), 2004 27934 (ON SC), 69 O.R. (3d) 175 (Ont. S.C.J.).

(iii) A motion for security for costs should not be converted to a summary judgment motion nor should it be used to indirectly accomplish the same result: See Intellibox Concepts Inc. v. Intermec Technologies Canada Ltd., (2005), 14 C.P.C. (6th) 339 (Ont. S.C.J.).

(iv) The rule does not create a “prima facie” right to security for costs but, rather, triggers the inquiry: See Zeitoun v. Economical Insurance Group, (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131 (Ont. Div. Ct.); and Chachula, supra.

(v) The onus is on the moving party to establish the criteria on which they rely: See John Wink Ltd., supra.

(vi) Under paragraph 1(e), the test is conjunctive and both requirements must be met by the moving party: See 484130 Ontario Ltd. V. Konstaninou, [2001] O.J. No. 111 (Ont. S.C.J.); and Willowtree Investments Inc. v. Brown (1985), 48 C.P.C. 150 (Ont. Master).

(vii) The moving party is not required to prove that the plaintiff’s claim is frivolous and vexatious, only that there is good reason to so believe: See Hallum v. Canadian Memorial Chiropractic College (1988), 1989 4354 (ON SC), 70 O.R. (2d) 119 (Ont. H.C.J.); and Schmidt v. Toronto Dominium Bank (1995), 1995 3502 (ON CA), 37 C.P.C. (3d) 383 (Ont. C.A.).

(viii) “Good reasons to believe that the action is frivolous and vexatious” means that the claim has virtually no chance of succeeding: See 484130 Ontario Ltd., supra.

(ix) Unless a claim is clearly devoid of merit, it should be allowed to proceed: See John Wink Ltd., supra; and Intellibox Concepts Inc., supra.

(x) Not plainly devoid of merit is a very low evidentiary threshold: See Zeitoun, supra.

(xi) If the moving party meets the requisite tests, the plaintiffs must then show that the claim should be allowed to proceed to trial despite an inability to be responsible for cots and that the claims is not plainly devoid of merit: See Hallum, supra; John Wink Ltd., supra; and Chachula, supra.

ANAYLSIS

[32] I will review both components under Rule 56.01(1)(e) as it relates to this case although, quite frankly, the motion easily fails on the second branch due to a lack of evidence.

A) Insufficient Assets to Pay Costs

The Plaintiffs do not assert impecuniosity. The onus, therefore, is on the defendants. The evidence tendered on their behalf is that:

a) From the transcript of the criminal trial, Mr. Curley reported being 26 years of age, having a Grade 12 education and being employed as a tire technician and mechanic at Hill’s Tire for approximately 4 years;

b) Ms. Porter is said to be 24 years of age; and

c) An “assets search” conducted by Investigative Research Group at the request of counsel for the defendants revealed:

i) no record of land owned by either plaintiff according to the records of the Land Registry Office for the County of Brant;

ii) both plaintiffs are licensed to operate a motor vehicle;

iii) no writs of execution were filed against either plaintiff with the Sheriff’s Office for the County of Brant;

iv) no record of bankruptcy exists for either plaintiff; and

v) no registrations pertaining to either plaintiff were found under the Personal Property Security Act.

[33] The purported asset search is only a superficial inquiry. It is incomplete. It is well known that real property within the boundaries of the Six Nations Reserve, where the plaintiffs reside, is not recorded under provincial legislation. The remaining items are a positive reference as to the plaintiff’s financial circumstances.

[34] Given the financial resources available to the defendants, I would have expected a comprehensive investigation on this issue. Their due diligence duty has not been met.

[35] It would appear the defendants merely assume the plaintiffs would be unable to pay a cost award. The defendants’ evidence falls well short of meeting the requisite test. Accordingly, the onus does not shift to the plaintiffs.

B) Frivolous and Vexations

[36] Regardless of who bears the onus on this branch of the test, I am of the view the motion fails. Simply put, it cannot be said the plaintiffs’ claim is clearly devoid of merit.

[37] The defendants rely on the evidence tendered in the prior criminal trial, a pre-trial ruling in that case, the agreed statement of facts regarding a guilty plea of another individual and a reference to the trial of another person.

[38] I do not propose to review these matters, or the transcripts filed, in detail due to the following factors:

a) the result of a criminal trial is not binding on a related civil claim;

b) the burden of proof in a criminal trial is much higher;

c) the evidentiary record from the criminal trial is incomplete as it relates to the civil case, as the defendant police officers did not testify;

d) a jury does not give reasons; and

e) there was no judicial determination on the issues raised in the civil case, such as the Charter rights of Mr. Curley, as Mr. Curley was never changed with an offence.

a) Other Charged Persons

[39] As a result of the criminal investigation by Sgt. Bomberry and Cst. White, five individuals were charged with Criminal Code offences.

[40] Benjamin Bomberry, Daniel Montour-White and Seth Montour pleaded guilty to common assault on Ross Martin. Ross Martin pleaded guilty to common assault on Mr. Montour. Kelly Clause was found guilty by a jury of aggravated assault on Mr. Martin.

[41] Counsel for the defendants referred to Crown counsel’s presentation of the facts on the guilty plea. There, reference was made to exigent circumstances allowing the police officers to enter the residence without a warrant. This was not a judicial determination.

[42] Counsel also relies on the lack of any Charter application by the persons charged to exclude evidence resulting from the warrantless search. This factor is not conclusive. It is unknown as to what lead to the guilty pleas, such as negotiations between Crown and defence counsel, or factors particular to the accused person. No evidence was presented regarding the trial of Ms. Clause. In any event, these proceedings did not involve the Charter and other rights of Mr. Curley and Ms. Porter.

b) O.P.P. Investigation

[43] As a result of Mr. Curley’s complaint to the Six Nations Police Chief,

the Ontario Provincial Police were asked to conduct an investigation. Four police

Officers and a Crown counsel were involved.

[44] Following the investigation, a unanimous recommendation was made

to charge Sgt. Bomberry and Cst. White with certain Criminal Code offences. The

investigating team concluded exigent circumstances did not exist and there were

reasonable and probable grounds to allege the officers entry into the residence was

illegal as were the actions that followed. The officers were subsequently charged.

[45] Disclosure of the investigation details has not yet occurred and is the

subject matter of the outstanding Rule 30.10 motion.

[46] Given the lower burden of proof in a civil case, I am of the view this investigation and the conclusions of the investigating team are relevant to this motion and this case. Based on the information known at this time regarding the investigation, the plaintiff’s claim cannot be said to be devoid of merit. Indeed, the information appears to provide support for the claim.

c) Stay Application

[47] In a pre-trial application, counsel for Sgt. Bomberry and Cst. White sought a stay of proceedings on the basis of abuse of process. The application was dismissed by Arrell, J. in a decision released January 16, 2013 (2013 ONSC 384).

[48] The hearing lasted several days. Oral evidence was presented. Neither the plaintiffs nor the defendant officers testified. Cst. Lewis and Cst. Tait provided evidence pertaining to the event and their involvement regarding entry into the residence. Other witnesses addressed the O.P.P. investigation, particularly regarding the defence allegation of bias in that process.

[49] Arrell, J. made certain findings of fact for the purpose of his ruling on the application. He specifically made the comment such findings were made on a limited evidentiary record. Arrell, J. concluded that Mr. Curley was drunk, non-complaint and actively resisting the officers. He also determined there was no evidence the defendant officers had anything but an honest belief that there were exigent circumstances to authorize entry into the residence.

[50] As I understand the application, Arrell, J. was asked to address two issues, namely exigent circumstances and bias in the investigation.

[51] Exigent circumstances was left to the jury, at para.s 29 - 34, Arrell, J. saying:

29. The subjective states of mind of the accused are certainly a relevant factor. However, just as relevant is the objective basis that caused them to form that state of mind. The jury will decide if there was sufficient objective evidence presented to the accused that was capable of allowing them to form the honestly held belief that they were justified in entering the residence to secure it. That, in my view, is a question of fact which juries decide regularly.

30. To allow the defence argument to prevail would mean that a police officer need not have reasonable and probable grounds but only an honestly held belief or an accused need only have an honestly held belief that a victim was consenting when objectively such a belief was not reasonable. Such is not our law. As stated in R. v. McCormack 2000 BCCA 57, [2000] 143 C.C.C. (3rd) 260 (B.C.C.A.) para 25 “The existence of exigent circumstances involves the subjective belief of the police, and the objective basis for the belief.”

31. The defence urges me to conclude that whether exigent circumstances exist is a matter of law which I must decide. I disagree. Exigent circumstances, in my view, is simply a label for a set of facts that if accepted by the trier of fact would mean that the conduct of the accused was lawful. As stated in R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search is delayed and it is impractical to obtain a warrant because of those factors. Likewise, the Waterfield test sets out the factors to determine the common law powers of the police. R. v. Waterfield, [1963]3 All E.R. 659 (C.C.A.); While Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2 set out others; as does the Criminal Code of Canada.

32. Doherty J.A. in R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3rd) 482 at 499 described what is meant by justifiable use of police power as follows

“…the justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of that duty to the public good, the liberty interfered with and the nature and extent of the interference.”

33. These are all facts which the jury is more than capable of determining based on all of the evidence it will hear. Indeed the charges the accused face all have an element of “unlawful” or a defence of “justification” in the police actions and Watts J.A. has suggested wording for such instructions to a jury. (Ontario Specimen Jury Instructions (Criminal), Watts, David, Thompson & Carswell.

34. I conclude that whether the accused were justified under whatever heading one wishes to label the facts, be it exigent circumstances, the Waterfield doctrine, the Criminal Code or the elements of the various offences of which they are charged, it should be up to the jury to determine those facts and whether it raises a reasonable doubt in their minds as to whether the accused had lawful authority to enter the house.

[52] The allegation of bias was addressed in para.s 35, 36 and 37 as follows:

35. As stated in R. v. Regan 2002 SCC 12, [2002] 1 S.C.R. 297 a stay of proceedings will only be granted as a remedy for an abuse of process in the clearest of cases. Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. The court went on to say that where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay, a third criterion is considered: the interests that would be served by the granting of a stay of proceedings are balanced against the interest that society has in having a final decision on the merits.

36. I have concluded that the accused have not met the criteria enunciated in R. v. Regan, supra. Indeed I have concluded that I have not been persuaded that any abuse has occurred. There is no evidence before me of bias, bad faith on the part of the investigating officers or the inappropriate exercise of prosecutorial discretion. This is a case where the issue is relatively simple-were the accused justified in the course of conduct they followed. The jury will hear all of the evidence on the issue and are fully capable of making a decision on that point.

37. Should I be wrong on my conclusion that this is not an abuse situation then I have no hesitation in concluding that this is far from the clearest of cases and the criteria set out in R. v. Regan, supra, has not been met by the accused. As that case concluded, at para. 104, “…the facts of the case (at bar) do not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community’s sense of decency and fair play. Moreover, the conduct, even if it did amount to an abuse, does not have the ongoing effect on the accused which would jeopardize the fairness of the trial.”

[53] I do not see the decision of Arrell, J. as assisting the defendants on this motion. Indeed, as noted in the above passage, he determined the evidence presented was not sufficient to conclude the criminal proceeding was vexatious. A similar finding can be made here as the investigation resulted from Mr. Curley’s complaint.

d) The Trial

[54] The criminal trial for Sgt. Bomberry and Cst. White took place in January 2013. The jury returned a verdict of not guilty on all counts. The verdict is persuasive but not determinative of the issues in this civil case. A jury does not give reasons. How the jury assessed the evidence is unknown. Sgt. Bomberry and Cst. White did not testify, as was their right.

[55] Crown counsel called a number of witnesses, including Cst. Lewis, Cst. Tait, Mr. Curley and Ms. Porter. The defence counsel called one witness, Ronnie Lee Styres.

[56] Cst. Lewis and Cst. Tait reported having been directed to attend the property to assist the Six Nations Police officers. They did not speak to Sgt. Bomberry and Cst. White about the grounds for entry into the residence.

[57] An important issue at the criminal trial, and in this civil case, pertains to the warrantless search. The entry is said to be based on exigent circumstances. Blood was found outside the residence. It is suggested the officers were concerned individuals inside the residence might be destroying evidence. On the limited evidentiary record presented on this motion, it is unclear as to whether all relevant factors pertaining to exigent circumstances were explored at trial.

[58] Of particular importance is the subjective basis for the conclusion of Sgt. Bomberry and Cst. White and whether such was objectively reasonable. The practical difficulty in addressing that issue at this stage is that neither officer testified. Their belief has not been tested by cross-examination. In my view, that is a critical issue in the context of the rights of the plaintiffs.

[59] Cst. Tait opined that he believed the officers had exigent circumstances allowing entry without a warrant. Cst. Lewis said they did not or, at least, it appears he was unsure. Cst. Tait and Cst. Lewis were not the decision-makers. They did not have the knowledge of Sgt. Bomberry and Cst. White as to the investigation details discovered prior to this event.

[60] The issue of the warrantless search and exigent circumstances appears to have been a matter for the jury to consider, according to the pre-trial ruling of Arrell, J. previously discussed. A transcript of counsel’s summation to the jury and the final charge of Arrell, J. were not provided. In any event, it is impossible to know how the jury assessed the evidence and whether the issue was a factor in their decision. It would be inappropriate to simply rely on their verdict to say exigent circumstances were established.

[61] I am not persuaded the issue has been resolved in favour of the defendants. Rather, further inquiry is required. At this early stage I cannot say the plaintiffs’ claim is clearly devoid of merit having regard to the nature of the officers’ entry into the residence. Indeed, on this limited evidentiary record, there is, at least, some merit worthy of consideration.

[62] The next issue involves the use of force by Cst. White, namely the Taser. While it is connected to the warrantless search, use of force is a separate and distinct issue. Police officers routinely interact with individuals who are less than co-operative. Use of force is restricted to exceptional circumstances. The use of Tasers has been the subject matter of serious injury and debate over the past several years.

[63] Cst. Lewis was engaged with Mr. Curley, who, it appears was resistance to the officer’s commands and struck Cst. Lewis after being handcuffed. Cst. White administered the Taser on Mr. Curley. Cst. Lewis did not observe such occurring. Nor did Cst. Tait, who was in another part of the residence.

[64] Reference was made to the Policy Procedure of the Six Nations Police Service regarding the “Use of Force”, most recently dated March 14, 2007. This document makes reference to the accepted principle that police officers use no more force than is necessary. It provides some direction on the use of “conducted energy weapons”. As I understand the situation, this policy differs from that of the Ontario Provincial Police. For example, neither Cst. Lewis nor Cst. Tait were authorized to use a Taser.

[65] The training, experience and prior use of a Taser by Cst. White is not known. Nor is the direction of senior officers. Cst. White has not testified, hence his decision to use a Taser in the circumstances he encountered has not been challenged.

[66] This issue was not fully explored at the criminal trial. Was the use of a Taser necessary? Is the Six Nations Police Service policy reasonable? These and other questions need to be explored. Again, on this limited evidentiary record, no conclusions can be made. It appears, at least, that there is some merit to the plaintiffs’ claim.

[67] The final issue raised in the statement of claim pertains to negligent investigation. This topic was not canvassed in the criminal trial. There is little evidence on this motion regarding matters leading up to the entry into the residence, save for the notes of Sgt. Bomberry and Cst. White.

[68] It appears the officers involvement following notification of the assault complaint on Mr. Martin was of short duration. Events occurred quickly. For example, Cst. White recorded his first involvement at 4:57 a.m. as to a “male assaulted at 43 Ojibway Rd.” He indicates entry into the residence at 7:16 a.m. Mr. Curley’s name does not appear in these notes prior to the entry. It is unclear as to whether the officers had identified any suspects from their initial interviews of individuals.

[69] The verdict in the criminal trial has no bearing on this issue. Further inquiry is needed to assess the merits of this component of the claim.

e) Ronnie Lee Styres

[70] Ms. Styres was called as a witness by defence counsel at the criminal trial. She testified about events pertaining to the attack on Mr. Martin, saying at least eight people, including Mr. Curley, were involved. Ms. Styres also reported Ms. Porter to have hit her with a bottle during this event. Disclosure of her evidence appears to have been made by reference to a statement dated January 22, 2013, the day before she testified.

[71] This evidence was not revealed in Ms. Styres initial contact with police officers nor at any subsequent time prior to the trial. Indeed, Cst. White recorded in his notes a report that Mr. Martin had shown up at the residence of Ms. Styres in a beaten condition. These notes do not indicate Ms. Styres was present during the assault. Rather, it suggests she was not.

[72] On its face, there is an obvious inconsistency thus raising questions as to credibility and reliability. It is unknown as to what use, if any, the jury made of Ms. Styre’s testimony. Regardless, there is no evidence to suggest Sgt. Bomberry and Cst. White were aware of this information prior to the warrantless search. Hence, the evidence is not a factor in their subjective belief, nor whether their belief was reasonable objective. Actions taken by police officers must be determined based upon the information known at the time, not something surfacing three years later.

[73] While the amendments to the statement of defence appear to result, in part, from the testimony of Ms. Styres, the admission that Sgt. Bomberry and Cst. White concluded that Mr. Curley was not involved in the assault on Mr. Martin still stands.

f) Summary

[74] The plaintiffs’ face some obstacles in pursuing their claims, as is often the case. However, I am not persuaded the defendants have met the requisite test. It cannot be said the plaintiffs’ have no chance of success or that there claim is clearly devoid of merit.

C) Discretionary Relief

[75] Relief under Rule 56.01 is discretionary. Important issues are raised in this action for the litigants and, as well, others having an interest in police investigations, including society in general. In all of the circumstances, I conclude this is not an appropriate case for security for costs.

SUMMARY

[76] For these reasons, the motion is dismissed. I expect counsel will be able to resolve the issue of costs; failing which, brief written submissions are to be exchanged and delivered to my chambers in Cayuga within 30 days. Without determining this issue, I simply note that defendants’ counsel, in his motion record, reported his clients’ costs for this motion as being $4,526.25, on a partial indemnity scale, with actual costs being $6,035.00, both plus HST and disbursements.

Gordon, J

Released: April 7, 2014