ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-2371-13SR
DATE: 2015-07-13
BETWEEN:
Stephen Fazekas
Plaintiff
– and –
Greater Sudbury Police Services Board, Cst. David Patchett, Constable Brenda Sarafin
Defendant
Stephen Fazekas, self represented
P. Archambault, for the Defendants
HEARD: May 27, 2015
REASONS FOR JUDGEMENT
HENNESSY, j.
[1] This case involves allegations of negligent investigation and bad faith conduct of the investigation and prosecution of charges on the part of the police. The plaintiff also alleges that the police gave false evidence in court, and breached the plaintiff’s ss. 7 and 11 Charter of Rights and Freedoms.
[2] In July 2011, the Greater Sudbury Police Service, (GSPS or the police) responded to two citizen complaints made by the plaintiff, Stephan Fazekas, and by the woman who was sharing Mr. Fazekas’ apartment at the time. Mr. Fazekas was charged with four counts: sexual assault, forcible confinement, assault with a weapon, and uttering threats and the matter was prosecuted. Mr. Fazekas was ultimately acquitted after trial.
[3] In the criminal proceeding, the complainant’s name was the subject of a publication ban. For the purposes of this decision, I will refer to her as the complainant.
Preliminary Matter: Request for an Adjournment
[4] The plaintiff attended on the first day scheduled for trial and requested an adjournment in order to try again to find his proposed witness, the complainant. The plaintiff submitted that he had expended a fair amount of effort in trying to locate the proposed witness. Notwithstanding his efforts, he had been unsuccessful. The plaintiff wanted the police to assist him in locating the proposed witness who is known to police, has had frequent stays in the local jail, and is known to work on the street in the sex trade.
[5] The nub of Mr. Fazekas’ claim is that the proposed witness fabricated a story about their argument and falsely claimed that she was sexually assaulted, threatened with a knife, and forcibly confined. The plaintiff claims that the police were negligent in their investigation of these allegations and should not have accepted the complainant’s version of events. He also alleges that the police told the complainant to lie. The plaintiff asserted a number of times in this trial that the proposed witness was a pathological liar. The plaintiff further submitted that the proposed witness had twice failed to attend the prior criminal proceedings, was ultimately arrested for failure to appear and jailed while waiting for the criminal trial to commence. At the criminal trial, the proposed witness, the complainant, maintained her initial allegations.
[6] The plaintiff sought to bring the proposed witness to this civil action against the police to support his allegation that she had falsely accused him and/or that the police had told her to lie about the event. The plaintiff also hoped that the proposed witness would accept the proposition that she had made numerous false complaints against men in the past and that the police should have known this or that their investigation was negligent to the extent that they were not aware of this history. The plaintiff, at the time of trial, still believed the proposed witness to be a liar.
[7] The defendants opposed the request for an adjournment.
[8] I denied the request for an adjournment. I was of the view that the proposed witness could not have assisted the plaintiff in making his claim against the defendants. In order for the proposed witness to assist the plaintiff in making his claim, she would have had to admit that she lied to the police and perjured herself on the stand. Even had she made these admissions, the plaintiff was on record as saying that he still believed the proposed witness was a pathological liar. If the proposed witness attended these proceedings, the plaintiff would have had the opportunity to examine her; however, it is more likely that he wished to cross-examine her, something he was not permitted to do in the criminal proceedings. During the criminal proceeding, Mr. Fazekas was self-represented. An amicus curiae was appointed and it was amicus counsel who cross-examined the complainant.
[9] Rule 53.04 requires a party who requires the attendance of a witness to serve the person with a summons to witness. A judge may issue an arrest warrant for a person who fails to attend where a summons has been properly served (rule 53.07).
[10] The plaintiff did not obtain a summons, nor serve a summons.
[11] Mr. Fazekas has represented himself at various stages of criminal matters over the years and from my observation has a fair degree of comfort with trial proceedings and processes. He is not a stranger in the courthouse and indicated that he knows where to go to ask for advice. It is possible that had a summons been served, the proposed witness might not have attended and the issue before the court would have been different.
[12] I am of the view that it was highly unlikely that this proposed witness would have been of any assistance at all to the plaintiff.
[13] On the other hand, two individual police officer defendants have had this matter outstanding for almost two years since the civil action was commenced. The police have been defending the action and attended at the opening of trial with witnesses and counsel. Four officers from the GSPS attended.
[14] I could see no utility or advantage to the plaintiff to be gained from an adjournment and there was some prejudice to the defendant if the adjournment was granted. Three days had been set aside for trial. These would have been days lost to the system and a waste of judicial resources. There had been little to no effort made in actually obtaining a summons. In the circumstances, an adjournment was not warranted.
Background to this Action: The Criminal Charges and Trial
[15] As this action involves allegations relating to the conduct of a police investigation and the ensuing trial, it will be helpful to set out the background facts in the criminal matter.
[16] Following an incident in his apartment in the early morning hours of July 1, 2011, Mr. Fazekas called the police and waited for the police to attend. The complainant left the apartment and immediately went to the police headquarters where she made her complaint in person.
[17] The complainant described an incident which allegedly took place at the plaintiff’s second floor apartment where the complainant had attended to retrieve some belongings. She alleged that the plaintiff became upset and grabbed her by the wrists, then the hair and dragged her into his room where he tried to take her pants off and threatened her with a steak knife. The complainant alleged that she broke a screen in the window and tried to call out or exit, but the plaintiff pulled her back through the opening. She alleged that she suffered scratches and red marks on her wrists and arms from her escape attempt. The complainant also alleges that she ran past the plaintiff, down the stairs and into the street where she went to a neighbour’s door and asked for help. She then hailed a cab and went directly to police station where she gave a videotaped statement.
[18] The two individual defendants were the officers who interacted with the complainant. Constable Patchett conducted the interview and Constable Sarafin took photographs of the complainant’s arms, legs, and torso.
[19] Officers Dillabough and Koop responded to Mr. Fazekas’ call. Mr. Fazekas alleged that there was an argument about the complainant bringing a customer to his apartment. Mr. Fazekas said he ran downstairs to confront the customer and that the complainant had thrown a pop can at his back when he was on his way out of the apartment. He further alleged that the complainant had picked up two knives and threatened him. Mr. Fazekas reported that the complainant had then run down the stairs to the street and screamed rape. The officers picked up the knives and invited Mr. Fazekas to attend the police station where they interviewed him. By this time, Mr. Fazekas was aware that the complainant was making allegations against him and the officers informed themselves of the complainant’s allegations.
[20] The defendant officers who interviewed the complainant followed up with an investigation and by noon the following day, charged Mr. Fazekas. As Mr. Fazekas was on bail at the time, his bail was revoked and he was taken into custody. He spent some time in custody on these charges pre-trial, but he also served another sentence while awaiting trial on these charges. It was unclear how much time Mr. Fazekas served as a result of revocation of bail during this period. As a result of both the revocation of bail and another sentence, Mr. Fazekas was incarcerated from the time of arrest until his trial on these charges, a total of 239 days.
Plaintiff’s Position
[21] The plaintiff makes the following allegations:
• that the complainant’s evidence was unbelievable;
• that the police should not have acted upon the complainant’s allegations;
• that the complainant had a history of making unfounded complaints, which the police knew about or should have known about;
• that the police fabricated their evidence that they saw a screen pushed out of the window;
• that the police did not take a photo of the screen lying on the roof, outside the window;
• that the police failed to interview all possible witnesses, particularly the jail chaplain to whom the complainant is alleged to have recanted;
• by failing to investigate properly, the police breached the plaintiff’s right to a fair trial;
• that the criminal charges were incorrectly described in the press; and
• that the incorrect media coverage of the charges resulted in damage to the plaintiff’s reputation.
• NOTE: Mr. Fazekas seemed to believe that there was a publication ban of the criminal trial proceedings. Since that time, I have reviewed the criminal file and noticed that there was the usual s. 486.4 order prohibiting the publication of the identity of the complainant. There was no overall ‘publication ban’.
Defendants’ Position
[22] The defendants’ position is that there is no evidence of falsification, bad faith, or perversion of justice in the absence of evidence from the complainant. The police officers deny any allegation that they lied about seeing the window screen on the roof or that they coached the complainant to lie. Both officers denied knowing anything about the complainant prior to the interview, and that they did not know anything about alleged false or unfounded complaints in the past from this complainant.
[23] The two officers/defendants followed up on the complainant’s story in the day following the complaint. They attended outside the apartment by mid-afternoon of the same day and one officer made a note that she saw a screen lying on the lower roof under the windows of an upper floor apartment. The police took this as corroboration of the complainant’s report that she pushed out the screen. The police interviewed some residents of the street who could not recall sounds of a dispute. The police tried a number of times to identify or speak to the cab driver who drove the complainant to the police station, but were unsuccessful. Sometime later, the police did connect with the customer and they interviewed him. His evidence was confusing, although the police considered it to be corroborative.
[24] The police did not interview the individuals listed in two letters sent by Mr. Fazekas from jail. It was not clear from the letters why or how these individuals would have relevant or material evidence. In his testimony, Mr. Fazekas explained that these witnesses had been part of discussions with or about the complainant sometime after the offense. Many of these conversations took place in jail. The police took the position that there were only two people present at the time the alleged events occurred, that both had been interviewed, and that the police had followed up by speaking to or trying to speak to people who were in close proximity to two people immediately after the alleged events. They argued that the list of people provided by Mr. Fazekas could do no more than recount jailhouse gossip.
[25] The police lead evidence that they took a DNA swab from Mr. Fazekas on his request, which showed the complainant’s saliva on him. The complainant later admitted performing a paid sex act on Mr. Fazekas the day prior to the incident. The police found no fingerprints on the knives.
[26] The defendants took the position that the incorrect reporting in the media was not caused by the charges and that Mr. Fazekas had initiated a separate action against the newspaper, which had resulted in a settlement. Finally, the police took the position that if there were any damages caused by the incorrect reporting, that they were too remote. To the extent that there was reporting of the case at all, the police argued that this was a legitimate exercise of the press following legitimate exercise of the duties of the police.
[27] The police argued that only the July-September period of incarceration could be considered to flow from the revocation of bail, following arrest on the subject charges. However, they argue that the plaintiff has not provided any range of damages that he considers appropriate in the event the court finds liability for damages and causation.
The Law
[28] The tort of negligent investigation has been recognized in Canada since the decision in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, 3 S.C.R. 129. The court concluded that the investigating officers owe a duty of care to suspects and that suspects could reasonably rely on the police to conduct their investigations in a competent, non-negligent manner (para. 39).
[29] The standard of care required to meet the duty is that of a reasonable police officer in like circumstances (paras. 50 and 67).
[30] Police, as trained professionals, must be permitted to engage in reasonable exercises of discretion. At para. 54, the court stated:
Courts are not in the business of second guessing reasonable exercises of discretion by trained professionals. An appropriate standard of care allows sufficient room to exercise discretion without incurring liability in negligence.
[31] Police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness (para. 73).
[32] In R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, the court clarified the requirement for reasonable and probable grounds. At para. 17, the court stated:
…the 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.... On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.
[33] In Hill, the court stated at paras. 50 and 68:
50 … Police are required to weigh evidence to some extent in the course of an investigation: Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474 (S.C.C.). But they are not required to evaluate evidence according to legal standards or to make legal judgements. That is the task of prosecutors, defence attorneys and judges…
68 … [At the stage of] laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty, since the law requires such grounds, a police officer acting reasonable in the circumstances would insist on them.
[34] The reasonable officer standard allows for minor mistakes and misjudgement (para. 77).
Discussion
[35] Allegations of sexual assault often involve two opposing versions of what happened and an absence of other witnesses. This is the situation facing police on a daily basis. Police officers are trained to put aside myths and stereotypes and to treat seriously all complaints of domestic violence. The status of the complainant should not influence the quality of the investigation, however, nor should police turn a blind eye to complaints that are not well-founded. Identifying the indicia of a well-founded complaint often takes years of experience and involves the exercise of discretion.
[36] In this case, the complainant arrived at the police station in very agitated condition. While still in the lobby she spoke of having been raped. Throughout the videotaped interview, she was agitated and rambling, picking and scratching at her body. The two officers assigned to the case had very limited experience. Neither had ever lead an investigation into an allegation of sexual assault before. Neither of them had experience with drugs. The complainant reported throughout the interview that she was a drug addict but had been clean the last 52 days while she had been incarcerated. For some reason, possibly related to ingesting drugs or being without drugs, the complainant seemed to be in mild physical distress.
[37] The defendant officers did not interview Mr. Fazekas but they had his version of events as provided to them by officers Dillabough and Koop. In Mr. Fazekas’ version, the complainant wanted to bring ‘a trick’ back to the apartment and Mr. Fazekas objected to this. The plaintiff and the complainant got into an argument. There was name calling. Mr. Fazekas stated that he ran outside to chase away the trick who was waiting in his truck and that the complainant pulled a knife on him, threw a can of pop at his back, and screamed rape.
[38] Officer Patchett, who had responsibility to conduct the follow up investigation, sought corroboration of the complainant’s story. He found corroboration in the pushed out screen and later on from an interview with the customer. He interviewed the landlord and neighbours, none of whom provided helpful information. The officer sent the knives out to be fingerprinted and followed up on the DNA swab from Mr. Fazekas. The officer directed Mr. Fazekas’ requests for them to do further interviews to the Crown, as is the practice. The Crown did not suggest any further investigations as a result of Mr. Fazekas’ letters.
[39] Mr. Fazekas argued that the police should have known that the complainant was making a false allegation. In essence, he argues that the police received a serious allegation without corroboration and should have exercised their discretion differently.
[40] Officer Patchett testified that he was satisfied that he had reasonable and probable grounds following his second interview with the complainant, his review of the notes of the other officers’ interview of Mr. Fazekas and after speaking to the officers about their interview. He also took into consideration that he had seen the screen on the roof and the photographs of the complainant’s hands, arms, legs, and torso. The arrest was made approximately 24 hours after the first interview with the complainant. The officer continued his follow up investigation over the following weeks and months.
[41] The alleged injuries photographed by police were consistent with many things, not only consistent with the allegation that the complainant had been pulled through a window opening. Additionally, the officer conceded at trial that the scenario described by the customer in an interview could also have been interpreted as not corroborating the complainant’s version.
[42] It is not surprising that a person charged with sexual assault, who is ultimately acquitted, will believe that the police investigation should have uncovered the flaws in the complainant’s allegations and should have assessed reasonable and probable grounds differently. In this case, the evidence in support of the sexual assault charge was minimal. The complainant asserted that the plaintiff tried to pull her pants down when he pulled her away from the window. The officer was required to assess this allegation objectively, taking into account the surrounding circumstances. A reasonable officer could have concluded in these circumstances that pulling down the complainant’s trousers violated her sexual integrity and gave him reasonable and probable grounds to charge Mr. Fazekas with sexual assault. The reasonable exercise of discretion is within the officer’s scope of duty.
[43] Where an officer makes a reasonable exercise of discretion and has reasonable and probable grounds for an arrest, the case for negligent investigation has not been made out. This court cannot second guess a reasonable exercise of discretion. Another officer, acting reasonably may have decided to exercise his or her discretion differently. So long as the exercise of discretion is within the bounds of reasonableness, it meets the standard of care required. Officer Sarafin was not involved in the decision to charge the plaintiff and had no role in the investigation after taking the photos. There is no evidence of negligence for her role in the investigation.
[44] The crown attorney has prosecutorial discretion. Their exercise of discretion is not called into issue here although, at trial, following the complainant’s testimony, the crown conceded that there was no evidence to find sexual assault. I note that the complainant’s evidence at trial did not exactly duplicate her statement to police.
[45] I am satisfied that the plaintiff has not proven on the balance of probabilities that the investigation was negligent. The claim of negligence against the defendant officers and the GSPS has not been proven on the balance of probabilities.
[46] On the allegations of falsification of evidence or coaching a witness to lie, there was no evidence. With respect to the claim for damages for breach of his ss. 7 and 11 Charter rights, the plaintiff did not make any specific argument. Mr. Fazekas was acquitted at trial. The trial according to Mr. Fazekas achieved the right result. There is no evidence that the trial was unfair in any respect. Mr. Fazekas appeared to have the full opportunity to defend himself. The court appointed counsel to assist him. There were no disclosure issues raised.
[47] With respect to the claims for violations of his Charter rights, there can be no violation of a person’s rights under s. 7 of the Charter when they are arrested on reasonable and probable grounds. Charlton v. St Thomas Police Services, [2009] O.J. No. 2132 (S.C.), para. 58.
[48] Although the plaintiff initially took the position that he was not given rights to counsel or advised of the charges he was facing, Mr. Fazekas later conceded that he was not sure of this. I have now reviewed Ex. 6 from the trial, which is a CD of the videotaped interview of Mr. Fazekas. At the outset of the interview, the officer clearly tells Mr. Fazekas that he is facing the four possible charges and gives Mr. Fazekas his right to counsel.
[49] Given my finding on the main question of liability, there is no need to assess causation or damages. However, I make these brief comments. The plaintiff’s main complaint was that the charges and criminal trial were reported in the Sudbury Star with a headline which read: Repeat Sex Offender Trial Delayed. This headline was incorrect. Mr. Fazekas was not a repeat sex offender. He had no convictions for sexual offenses. The contents of the article were, however, correct. Mr. Fazekas brought the error to the attention of the Sudbury Star and they printed a correction a few days later. The correction was very small compared to the size and prominence of the original headline. Internet links to the original article and headline continued to exist months later. Mr. Fazekas claims that to this day people call him a repeat sex offender and rapist. Mr. Fazekas reached a monetary settlement with the Sudbury Star over this matter.
[50] Mr. Fazekas did not suggest any amount of monetary damages that he proposed would be appropriate compensation for the damages he claims.
[51] As indicated above, I make no findings on causation or damages.
[52] The plaintiff’s case is dismissed. If the parties cannot agree on costs, they may make written submissions of no more than two pages. Any offers made must also be submitted.
[53] The defendant shall serve and file cost submissions by July 26, 2015.
[54] The plaintiff shall serve and file response cost submissions by August 3, 2015.
The Honourable Madam Justice Patricia C. Hennessy
Released: July 13, 2015
COURT FILE NO.: C-2371-13SR
DATE: 2015-07-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephen Fazekas, Plaintiff
– and –
Greater Sudbury Police Services Board, Cst. David Patchett, Cst. Brenda Sarafin, Defendants
REASONS FOR JUDGEMENT
Hennessy, J.
Released: July 13, 2015