ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-4162-00
DATE: 20150807
B E T W E E N:
DARREN JOHN
Self-represented
Plaintiff
- and -
CONSTABLE ADAM SYRING and HALTON REGIONAL POLICE SERVICE
Robin Squires, for the Defendants
Defendants
HEARD: June 29, 2015
ENDORSEMENT
André J.
[1] The defendants bring a motion for summary judgment on the ground that the plaintiff’s claim fails to disclose a genuine issue for trial. The plaintiff submits that the defendants’ motion should be dismissed and that his action should be allowed to proceed to trial.
Background Facts
[2] Cst. Adam Syring arrested Mr. John on April 25, 2011, and charged him with two counts of fraud under $5,000.
[3] The officer claimed that he formed his requisite grounds for arrest based on a number of factors including the following:
A CCTV surveillance video which provided the licence plate number of a vehicle connected to Mr. John;
A photograph from the Ministry of Transportation which he viewed in April 2011;
The evidence of a witness who allegedly identified Mr. John’s photograph in a photo line-up.
[4] In the ensuing trial, the trial judge rejected Mr. John’s Charter application alleging that Cst. Syring lacked reasonable and probable grounds to arrest him, and ultimately convicted him. Mr. John subsequently appealed his conviction and filed a Statement of Claim against the defendants on September 12, 2013, alleging unlawful arrest, unlawful detention, malicious prosecution and negligence.
[5] The Ontario Court of Appeal heard Mr. John’s appeal on September 10, 2014, and released its oral decision on the same date.
[6] The court made the following endorsement:
[1] The appellant appeals his convictions for two counts of fraud under $5,000 in part on the ground that the trial judge erred by dismissing his post-conviction application, brought at his sentencing hearing, to reopen his trial to introduce videotape evidence that he claims exonerates him from the crimes alleged.
[2] The appellant says that the videotape reveals that the real perpetrator of the frauds, whose picture was captured on surveillance tape footage of the premises where the crimes occurred, is someone other than the appellant.
[3] The trial judge did not review the videotape in question. The appellant, who was self-represented at the relevant time at trial, has advanced an explanation for why he did not seek to introduce the videotape at trial. His explanation finds some support in the trial record.
[4] On consent of the Crown, we reviewed the videotape in question. The Crown concedes, properly in our view, that if we conclude that there is a reasonable possibility, based on the videotape, of misidentification of the perpetrator in this case, a new trial is required to prevent a possible miscarriage of justice. Having viewed the videotape and the still photographs from the crime scene, we do so conclude.
[5] In our view, this is not one of those extraordinary cases in which a stay of criminal proceedings is warranted. Accordingly, the conviction appeal is allowed and a new trial is ordered. Of course, it will be for the judge presiding at the new trial to determine the admissibility of the videotape relied on by the appellant and, if admitted, its significance.
[6] In these circumstances, it is unnecessary to address the appellant’s sentence appeal.
Parties’ Positions
[7] The defendants submit that:
There is no factual basis to support Mr. John’s allegations of negligence, or that the investigation of Mr. John fell below the standard of care;
The trial judge’s dismissal of Mr. John’s s. 9 Charter application and in convicting him, was determinative of the issue of unlawful detention and arrest and malicious prosecution;
Cst. Syring had reasonable and probable grounds to arrest Mr. John. There was no evidence to the contrary before the trial judge, and, therefore, Mr. John has failed to satisfy the onus of proving an absence of reasonable and probable grounds.
[8] Mr. John submits that the motion of summary judgment should be dismissed and that the matter should be allowed to proceed to trial. He submits that the officer’s error with respect to the MTO photograph and the eyewitness identification of another person constitutes, at the very minimum, some evidence of negligent investigation.
Analysis
[9] A defendant may move for summary judgment to have all or part of a claim dismissed. The court shall grant summary judgment if satisfied that there is no genuine issue regarding a trial. See Rule 20.01 and 20.04 of the Rules of Civil Procedure [the “Rules”].
[10] In determining whether or not there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial. See Rule 20.04(2.1) of the Rules.
[11] In Hryniak v. Mauldin, the Supreme Court of Canada articulated a road map to a motion for summary judgment. There will be no genuine issue requiring a trial when the motion judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. In short, there will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. Hryniak v. Mauldin, 2014 SCC 7, at paras. 49, 66.
[12] Proof that charges were laid in absence of reasonable and probable grounds (“RPG”) is a necessary element in malicious prosecution, false arrest and negligent investigation. Moak v. Ontario (Provincial Police), [2008] O.J. No. 8, 2008 65 (S.C.J.) [Moak], at paras. 51-54, Franklin v. Toronto Police Services Board, [2008) O.J. No. 5237 (S.C.J.), at para 36, Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41, at para 55.
[13] The Supreme Court of Canada defined reasonable grounds as:
An honest belief in the guilt of an accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in a position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86 at paras. 43-44.
[14] In R. v. Storrey, the Supreme Court of Canada emphasized that “the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.” R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12 at para 17.
[15] In Wiles v. Ontario (Police Complaints Commissioner), the Court carefully examined the reasonable grounds standard and echoed the Supreme Court of Canada’s pronouncement that a police officer is not required to demonstrate anything more than reasonable grounds. The Court held that a police officer is not required; (1) to establish a prima facie case for a conviction before making the arrest; (2) to establish that the charge would succeed at trial; or (3) to establish that the accused has no valid defence to the charge. Wiles v. Ontario (Police Complaints Commissioner), [1997] O.J. No. 6274, 1997 CarswellOnt 6039 (Div. Ct.), at para 47.
[16] In MacPhee v. Ottawa Police Services Board, the Court adopted the following statement from P.H.E. v. Ottawa-Carleton Regional Police Service, for the formulation of reasonable and probable grounds:
From the review of the above noted case law, a number of principles emerge. The police need not demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making an arrest. It is clear, if one views the tests to be applied at the various stages of the criminal process (those being, for arrest – reasonable and probable grounds, for prosecution – a reasonable prospect of conviction, at a preliminary hearing – evidence that, if believed, could lead to conviction, at trial – proof beyond a reasonable doubt) that a police officer exercises his or her discretion at the very lowest end of this continuum. As was noted by Scott L.J. in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), as quoted by the Supreme Court of Canada in R. v. Storrey, supra, “That requirement is very limited” (that is, the requirement that a police officer have reasonable and probable grounds). [Emphasis added]
MacPhee v. Ottawa Police Services Board, [2003] O.J. No. 3786, [2003] O.T.C. 850 (S.C.J.), at para 37; P.H.E. v. Ottawa-Carleton (Region) Police Service, [2003] O.J. No. 3512, [2003] O.T.C. 811 (S.C.J.), at para. 54.
[17] The onus rests with the plaintiff to establish an absence of reasonable and probable grounds. Cellini v. Ontario (Attorney General), [2000] O.J. No. 180 (S.C.J.), at para. 25; Miguna v. Toronto (City) Police Services Board et al, 2007 3674 (ON SC), [2007] O.J. No. 512, 155 A.C.W.S. (3d) 546 (S.C.J.), at para. 30. Moak, at para 46.
[18] The elements of malicious prosecution, as set out by the Supreme Court of Canada in Miazza v. Kvello Estate, 2009 SCC 51, at para. 3, are as follows:
The prosecution was initiated by the defendants;
The prosecution was terminated in favour of the plaintiff;
The prosecution was undertaken without reasonable and probable cause; and
The prosecution was motivated by malice or a primary purpose other than that of carrying the law into effect.
[19] The defendants’ counsel is quite correct that the trial judge rejected Mr. John’s contention that Cst. Syring lacked the requisite legal and probable grounds to arrest Mr. John.
[20] That, however, is not determinative of the issue or whether or not there is a genuine issue for trial in the matter. During his cross-examination of the officer, Mr. John established that the MTO photograph the officer had claimed to have seen in April 2011 was in fact taken two months later. Second, he established that the surveillance video did not show the licence number of the vehicle driven by the suspect, as the officer had initially claimed. Third, he established that an eyewitness who had viewed a photo-array identified another individual as the person involved in the fraudulent activity.
[21] Additionally, the Ontario Court of Appeal viewed the videotape evidence produced by Mr. John and the still photographs from the crime scene and concluded that there was a reasonable possibility of misidentification of the perpetrator and consequently ordered a new trial.
[22] This surveillance video may be significant in assessing whether or not there is a genuine issue for trial. Cst. Syring testified that the person shown in the surveillance video was Mr. John. The Court of Appeal viewed the video produced by Mr. John and expressed concerns about the possibility of a misidentification in this case. This video evidence may well be relevant to the issue of negligent investigation and malicious prosecution in this matter.
[23] Counsel for the defendants submit that absent the video evidence which Mr. John relied upon in his appeal, there is no genuine issue for trial and that accordingly, summary judgment should be granted in this matter.
[24] Based on the evidence before me, I am not in a position to reach a fair and just determination on the merits of this motion. In my view, I am unable to make the necessary findings of fact, based on the transcript of the trial, that the officer had the requisite grounds to have arrested Mr. John. The video evidence which Mr. John unsuccessfully tried to present before he was sentenced may well have been relevant to that issue and ultimately to his guilt or innocence. Similarly, it may well be relevant to the merits of Mr. John’s civil action against the defendants.
Disposition
[25] The defendants’ motion for summary judgment is dismissed.
Costs
[26] There shall be no order regarding costs in this matter.
André J.
Released: August 7, 2015