Court File and Parties

CITATION: Abboud v. Ottawa Police Services Board, 2016 ONSC 1052

COURT FILE NO.: 12-54690

DATE: 2016/02/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Georges Abboud and Elias Abboud

Plaintiff

– and –

Ottawa Police Services Board and Ottawa Police Detective Chris Benson and Ottawa Police Officer Daniel Montsion and Ottawa Police Officer Craig Bridgeman and Ottawa Police Officer Sammie Brennan and Ottawa Police Officer Christopher Lennon and Ottawa Police Officer Daniel Kunsken and Ottawa Police Officer Chantal Arsenault

Defendants

COUNSEL:

Cheryl Letourneau, for the Plaintiff (Responding Party)

Jeremy Wright, for the Defendants (Moving Party)

HEARD: October 14, 2015

REASONS FOR Decision

R. Smith J.

Overview

[1] The Ottawa Police Services Board (the “Police Board”) has brought a motion for summary judgment dismissing the plaintiffs’ claims for damages for false detention, false arrest, and negligent investigation. The plaintiffs also claim damages for the breach of Georges’s right not to be arbitrarily detained, their right not to be subjected to an unreasonable search and seizure and Georges’s right to life, liberty and security of the person as guaranteed under s. 9, 8 and 7 of the Canadian Charter of Rights and Freedoms, 1982 c. 11 (“the Charter”).

[2] The Police Board submits that the plaintiff, Georges Abboud, (“Georges”) must establish on a balance of probabilities that he did not commit the criminal offences for which he was charged and has failed to do so on the evidence he has presented in response to the summary motion. As a result, it submits that all of his claims for damages should be dismissed.

[3] The plaintiffs deny that they are required to prove on a balance of probabilities that Georges was not guilty of the criminal charges. They also submit that such a finding requires an assessment of Georges’s credibility, which constitutes a genuine issue requiring a trial. The plaintiffs submit that the court cannot make a fair and just determination of Georges’s probable guilt on the criminal charges without a trial. As a result, the plaintiffs submit that the summary motion should be dismissed and all their claims should proceed to a full trial.

The Criminal Proceedings

[4] The Canada Border Services Agency (“CBSA”) examined a package shipped from China addressed to Georges Abboud at 1538-A Beaverpond Drive, Ottawa, Ontario. Georges lives at this address with his father, Elias. The package contained ten high-powered stun guns which are prohibited weapons in Canada.

[5] The police obtained a search warrant for the above residence on grounds which included the fact that Georges would accept delivery of the package. However, when a police officer attended to deliver the package to Georges, he opened the door but advised the delivery man that it was not his package and refused to take delivery. Notwithstanding Georges’s refusal to accept delivery of the package, the police proceeded to conduct a search of the residence for records related to the purchase of stun guns, without returning to amend the grounds and apply for another search warrant.

[6] During their search, the police seized a computer from Georges’s bedroom that contained evidence related to the purchase of a number of high-powered stun guns including evidence that the delivery of the package containing 10 stun guns had been tracked using this computer. They also discovered a quantity of cocaine in Georges’s bedroom located in a large jar of Georges’s nutritional supplements.

[7] Georges was detained outside of his home while the search was conducted and after the cocaine was discovered he was arrested and charged with attempting to import prohibited weapons, possession of cocaine, and possession of ecstasy. A certificate of analysis was obtained confirming that the white powder found in Georges’s supplements jar was cocaine.

[8] In his criminal trial Georges brought an application to exclude all evidence obtained as a result of executing the search warrant and alleged that his section 8 Charter right had been breached. His application was granted by Justice Dorval who found that the search warrant had been obtained based on evidence that Georges would accept delivery of the package containing the stun guns, which did not occur. Justice Dorval concluded that the grounds for the search warrant did not show a credibility based probability that Georges ordered the prohibited stun guns. She found that without evidence that Georges was expecting the delivery, it became a warrantless search.

[9] Justice Dorval therefore excluded the evidence obtained from conducting the search because it breached Georges’ and Elias’s s. 8 Charter rights. The Crown did not call any other evidence and the criminal charges against Georges were dismissed.

[10] The following issues must be decided:

1. Is there a genuine issue requiring a trial or can I make a fair and just determination on a summary motion, for the following claims for damage?:

(a) Claim for Damages for false detention and arrest and breach of Georges’s section 9 Charter right;

(b) Claim for damages for breach of section 8 Charter right;

(c) Claim for damages for breach of section 7 Charter rights; and

(d) Claim for damages for negligent police investigation.

Analysis

Test for Summary Judgment

[11] Rule 20.04(2)(a) sets out the test for a summary judgment as follows:

The court shall grant summary judgment if,

(a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;…

[12] Rule 20.04(2.1) grants the court the power to weigh evidence, evaluate credibility and draw reasonable inferences when deciding whether there is a genuine issue requiring a trial. Rule 20.04(2.1) reads as follows:

Powers

In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference form the evidence. O.Reg. 438/08, s. 13(3)

[13] In Cuthbert v. TD Canda Trust, 2010 ONSC 830, at para. 12, Karakatsanis J. stated as follows:

The new Rule does not change the burden of a party in a summary judgment motion. Rule 20.01 provides that a party who seeks summary judgment must move with supporting affidavit material or other evidence to support its motion. Pursuant to Rule20.02(2), a responding party “may not rest solely on the allegations or denial in the party’s pleadings but must set out in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial.” In other words, consistent with existing jurisprudence, each side must “put its best foot forward.” The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial, although in some circumstances the interests of justice may require that a material issue should be determined at trial, upon a full evidentiary record.

[14] In Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 66, the Supreme Court of Canada set out the approach to be followed on a summary motion as follows:

…the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure under Rule 20.04(2(a).

[15] If there appears to be a genuine issue requiring trial, the second step to be followed is to determine if the need for a trial can be avoided by using the new powers under Rule 20.04(2.1). In para. 66 of Hyrniak, the Supreme Court stated as follows:

Their use (the new powers) will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[16] In Sweda Farms Ltd v. Egg Farmers, 2014 ONSC 1200 at para 33, Corbett J. provided a concise summary of the approach to be followed in accordance with the Hyrniak decision as follows:

33. As I read Hyrniak, the court on a motion for summary judgment should undertake the following analysis:

(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(3) If the court cannot grant judgment on the motion, the court should:

(a) Decide those issues that can be decided in accordance with the principles described in (2) above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues.

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

[17] The Police Board’s main submission is that the plaintiffs have not proven that they have any compensable damages for negligent investigation, because compensable damages for the tort do not include damages occasioned by a guilty person. Stated another way, the Police Board submits that the plaintiffs have not established on a balance of probabilities that Georges did not commit the criminal offences for which he was arrested and charged and therefore he does not have any compensable damages.

[18] The Police Board also submitted that Georges has failed to put his best foot forward and has simply relied on a bald denial that he was guilty of the offences charged without putting any other evidence forward to prove on a balance of probabilities that he was not guilty of the charges.

[19] The Police Board finally submitted that I can use the expanded powers to determine that Georges cannot establish on a balance of probabilities that he did not commit the criminal offences for which he was charged. The Police Board submits that a fair and just determination can be made without a trial because cocaine was discovered in Georges’s bedroom and his computer, located in his bedroom, was used to track the parcel containing the ten stun guns.

[20] The plaintiffs submit that Georges does not bear the onus of proving on a balance of probabilities that he did not commit the criminal offences charged in order to recover damages for the tort of negligent investigation. They argue that they only have to prove the required elements of the tort and that they have suffered compensable damages.

[21] Georges also submits that he is entitled to simply deny that he was guilty of the criminal offences charged and the Police Board should bear the onus of proving on a balance of probabilities that he was guilty of the criminal offences charged if they are to avoid responsibility for damages caused by their officers’ negligent investigation.

[22] Both parties agree that the evidence obtained as a result of executing the search warrant at the plaintiffs’ residence is admissible in the civil trial. A summary of the relevant evidence discovered during the search and from the discoveries was summarized by the Police Board in their materials as follows:

(a) Georges owned a Toshiba laptop computer (the “laptop”);

(b) The laptop was found in Georges’ bedroom;

(c) The user account on the laptop was Georges, namely “BIGPAPAGEO”;

(d) Georges’ name was entered in entry fields on the laptop;

(e) The telephone number found in entries on the laptop was Georges’s;

(f) The address found in entries on the laptop was Georges’s;

(g) The laptop was password protected;

(h) Numerous searches were conducted on the laptop, including those relating to “taser”, “stun guns” and the legality of importing tasers or stun guns into Canada;

(i) The shipping status of the order of tasers was tracked on the laptop using the package’s tracking number;

(j) No one has contacted Georges concerning the package; and,

(k) A certificate of analysis confirmed that the substance found in Georges’ bedroom was cocaine.

[23] The key evidence discovered during the search, with regard to importing the stun guns, was the fact that someone had tracked the shipping status of the order for the stun guns on the Toshiba laptop located in Georges’ bedroom using the package’s tracking number. The package containing the ten stun guns was shipped to Georges Abboud at his correct address. The shipping status of the package had been accessed on two occasions from the Toshiba laptop found in Georges’s bedroom. The user account on the Toshiba laptop was Georges’s, namely BIGPAPAGEO.

[24] The second important piece of evidence discovered in Georges’s bedroom, was the cocaine found in one of the two large containers of vitamin supplements which belonged to Georges.

[25] Georges admitted that he owned a Toshiba laptop but denied that he ever ordered the package of stun guns. He admitted to buying the two canisters of vitamin supplements but denied any knowledge that a small package of cocaine and some ecstasy pills were stored in one of the canisters containing the supplements. Georges also denied conducting any searches on the Toshiba computer for stun guns or tasers, he denied using the computer to access the shipping status of the package, and he refused delivery of the package of stun guns when the police attempted the delivery. Georges admitted that he lived at the address in question; however, he lived there with his father, mother, two brothers, and his wife who shares the bedroom with him.

[26] A party responding to a summary motion is required to put their best foot forward and must set forth the evidence of their defence or claim that would be presented at trial. In this case, Georges was charged with several criminal offences and it is an almost impossible task to prove one’s innocence as it involves proving a negative, namely that he had no knowledge of the cocaine. Also, individuals are presumed innocent of criminal charges until they are proven guilty and the denial of any knowledge of the presence of the cocaine in his bedroom may be the extent of the evidence available to Georges on this issue.

[27] To prove possession of the cocaine, the Crown must prove both knowledge and control. The control aspect would be satisfied because Georges is presumed to have control over items in his bedroom albeit together with his wife who also shared the bedroom. The main issue is whether Georges’s knowledge of the presence of cocaine in his vitamin supplements jar in his bedroom can be inferred from the fact that the cocaine was found in that location. Secondly can this finding can be made fairly and justly on a summary motion. Does an assessment of the credibility of Georges’s denial of knowledge that the cocaine was in his bedroom require a trial to be assessed fairly and justly?

[28] The same factors apply to the question of whether Georges was the person who used the Toshiba laptop in his bedroom to check the status of the delivery of the package containing the stun guns from China. Georges stated that several individuals had access to this computer and his password, which he testified he left on a piece of paper by the computer.

ISSUE #1 - Is there a genuine issue requiring a trial or can I make a fair and just determination on a summary motion, for the following claims for damage?

a) Claim for Damages for false detention and arrest and breach of Georges’s section 9 Charter right.

[29] Section 9 of the Charter states as follows:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[30] In order to establish the torts of false arrest or false detention, the plaintiff must show that he/she has been “deprived of his liberty by the defendant officers against his will” (Wong v. Toronto Police Services Board, 2009 66385 at para. 74 (Ont. Sup. Ct) and also Moak v. Ontario (Provincial Police), 2008 65 at para. 51 (Ont. Sup. Ct). Once this is established, the burden shifts to the defendant to establish that the detention was justified by law.

[31] The plaintiff need not establish any actual loss for this particular tort: “the law of false arrest is a branch of the trespass action and no actual loss is required to establish a claim of damages.” (Lamka v. Waterloo Regional Police Services Board, [2010] O.J. No. 6308 at para. 42 (Sup. Ct))

[32] To establish that the detention was justified by law, the defendant police must show that they had reasonable and probable grounds for the arrest and detention. (See Moak at para. 51). In Ferri v. Ontario (Attorney General), 2007 ONCA 79 at para. 102, 219 O.A.C. 340, the Ontario Court of Appeal held that “there will be no genuine issue for trial where the evidence shows reasonable and probable ground at the time of the arrest.”

Reasonable and Probable Grounds

[33] In R. v. Savory (1996), 1996 2001 (ON CA), 94 O.A.C. 318 (C.A.), the Court of Appeal explained the meaning of control:

Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 1980 74 (ON CA), 55 C.C.C. (2d) 183 (Ont. C.A.), aff’d (1983), 4 C.C.C. 3(d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R. v. Chambers (1985), 1985 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.

[34] With respect to knowledge in order to prove constructive possession, it is incumbent upon the Crown to prove beyond a reasonable doubt that the accused knew of the presence of the cocaine and that he had some measure of control over its location.

[35] Knowledge is a state of mind. The accused’s knowledge can be inferred from circumstantial evidence such as occupancy (R. v. Kelly, 1966 543 (BC CA), [1967] 1 C.C.C. 215 at 222 (B.C.C.A.). In view of the discovery of the cocaine located in Georges’s bedroom which he occupied, the police would have had reasonable and probable grounds to detain and arrest Georges for possession of cocaine.

[36] In R. v. Storey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at pages 250-251, the Supreme Court of Canada set out the test for reasonable and probable grounds for arrest as follows:

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. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, 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.

[37] The police are not required to exhaust all avenues of investigation or establish the absence of a valid defence before proceeding (Wong at para. 59). Any defences that an accused may raise are to be determined at trial, not in the course of the investigation (Lamka v. Waterloo Regional Police Services Board, 2012 98291 at para. 48 (Ont. Sup. Ct. (Sm. Cl. Div.))).

[38] In order to determine whether the police had reasonable and probable grounds to arrest Georges, the issue must be based on the information available to the officer at the time. (Wong at para 61). In this case, when the police executed the search warrant, they discovered cocaine in a jar of vitamin supplements belonging to Georges and located in Georges’s bedroom. Based on the discovery of the cocaine in Georges’s bedroom, I find that the police have shown that the officers had reasonable and probable grounds to both detain Georges and to arrest Georges for possession of cocaine.

[39] The police officers’ grounds for detaining Georges were based on a valid search warrant at that time, which I find gave the police reasonable grounds to detain Georges while the search was conducted.

[40] On discovery of the bag of white substance which was cocaine in Georges’s bedroom in his vitamin supplement jar, the arresting officer would have subjectively reasonable and probable grounds to arrest Georges in these circumstances and those grounds would also be justifiable from an objective point of view.

[41] The defendant police officers have established that they had reasonable and probable grounds to detain Georges while they conducted their search pursuant to a valid search warrant and to arrest Georges based on the evidence of the cocaine found in Georges’s bedroom during the search. I find that Georges’s detention and arrest were justified by law as they had reasonable and probable grounds for both.

Disposition on Issue “a”

[42] I find that the defendant police have shown that their detention and arrest of Georges was justified by law because they had reasonable and probable grounds for detaining and arresting him. As a result, I dismiss the plaintiffs’ claims for damages for the tort of false detention and false arrest and for a breach of Georges’s section 9 rights pursuant to the Charter.

b) Claim for Damages for Breach of section 8 Charter Right

[43] Section 8 of the Charter reads as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

[44] In Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the Supreme Court established a four step test for evaluating claims for Charter damages:

1. The plaintiff must establish a Charter breach;

2. The plaintiff must establish that damages serve the objectives of compensation, vindication of the right, or deterrence of future Charter breaches;

3. The defendant can attempt to establish countervailing considerations that render damages inappropriate or unjust;

4. The Court must decide on a quantum of damages

Establishing the Breach

[45] I am satisfied that the plaintiffs have met their onus of establishing a breach of their section 8 Charter rights based on the finding by Justice Dorval that the police did not have reasonable and probable grounds to obtain a search warrant for the plaintiffs’ premises. The officer’s affidavit used to obtain the search warrant contained inaccurate information, because Georges did not accept delivery of the package containing the ten stun guns as anticipated.

Objectives Served

[46] In the Ward decision at paragraph 21, the court stated that damages are only one of the remedies available under section 24(1) of the Charter, and stated that often other remedies “will be more responsive to the breach”. In this case, the Police Board submits that Georges has already received a remedy, namely the evidence seized during the execution of the search warrant was not admitted in his criminal trial which has resulted in his acquittal of all charges.

[47] I agree with the Police Board’s submission on this point and find that the court’s refusal to admit the evidence obtained from executing the search warrant was the appropriate response to the breach in these circumstances.

[48] The plaintiffs must provide evidence to show that damages would serve one or more of the functions namely compensation, vindication or deterrence of future Charter breaches by the state.

[49] I find that the plaintiffs have not proven on a balance of probabilities that monetary damages are needed in order to compensate them or that monetary damages are required to highlight the harm that the breach caused to society. Finally the plaintiffs have not provided evidence to show that the police officers and Police Board must be deterred to ensure state compliance with the Charter. The plaintiffs did not produce any evidence that the Police had a general practice of obtaining search warrants for residences without ensuring that they had reasonable and probable grounds to obtain a search warrant.

[50] In this case, the police officer should have returned to the justice of the peace and advised him or her that Georges had refused to accept delivery of the package containing the stun guns. A search warrant may still have been obtained but this additional step should have been taken by the police. This evidence however does not demonstrate that the Ottawa Police Board needs to be deterred to ensure their compliance with the Charter.

Countervailing Considerations that Render Damages Inappropriate or Unjust

[51] In the decision of Ontario Society for the Prevention of Cruelty to Animals v. Hunter, 2014 ONSC 6084, 329 O.A.C. 103 (Div. Ct), the issue of whether the exclusion of evidence in a criminal matter was a sufficient remedy for a breach under section 8 and 24(2) of the Charter was raised. In the Hunter decision, the accused had successfully brought a section 8 Charter motion and the court excluded the evidence. The Crown withdrew the charges. At the civil trial, the Divisional Court noted this significant remedy and concluded that “a further remedy for the Charter breach by way of a damages ward would be an excessive reflection of the applicable functional objectives that have already been adequately served” I find that this is the case before me where the further award of damages would be an excessive reflection of the applicable functional objectives that have already been served.

[52] In the circumstances of this case, I am satisfied that the police have shown that the damages would be inappropriate having regard to the nature of the breach and also having regard to the fact that Georges has already received sufficient benefit as the evidence obtained from the search warrant was not admitted into his criminal trial.

Quantum of Damages

[53] In view of my findings that monetary damages are not appropriate and do not serve the objectives set out in the Ward decision, it is not necessary to fix the quantity of damages.

Elias’s claim for Charter Damages

[54] Elias allowed his son, Georges to reside at his residence and Georges successfully excluded the evidence obtained from the search warrant. As a result, Georges was acquitted of the criminal charges in circumstances where the search discovered cocaine in his bedroom and also discovered that the computer in his bedroom in Elias’s home, was used to track the package containing the ten stun guns that were to be delivered to his address.

[55] I find that awarding any damages to Elias for a breach of his section 8 Charter rights would not serve any of the objectives set out in the Ward decision. I find that an award of damages in his favour for any breach of his section 8 Charter rights in these circumstances would be inappropriate and unjust because the computer tracked the delivery of the ten prohibited weapons was located in his residence, he allowed his son to live at his residence, and stun guns were addressed to his residence. In addition, Elias is not established any entitlement to any compensation in order to put him in the position that he would have been in had any breach not occurred in other words. Elias has not proven that he has suffered any damages.

Disposition of Issue “b”

[56] For the above reasons, the plaintiffs’ claims for damages for a breach of their section 8 Charter rights are dismissed.

c) Claim for damages for breach of s. 7 Charter right

[57] Section 7 of the Charter reads as follows:

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[58] The Ward factors set out by the Supreme Court also apply to a claim for damages for breach of an individual’s section 7 rights pursuant to the Charter. I find that the functional objectives of the Charter have already been met as a result of the exclusion of the evidence obtained by the search warrant in Georges’s criminal trial. For the same reasons given under the claim for damages for breach of their section 9 Charter rights, I find that damages are inappropriate and unjust because the police had reasonable and probable grounds to detain and arrest Georges.

Disposition of Issue “c”

[59] For the above reasons, the plaintiffs’ claims for damages for breach of their section 7 rights are dismissed.

d) Claim for Damages for Negligent Police Investigation

[60] In the case of Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 R.C.S., the Supreme Court of Canada recognized the tort of negligent investigation by the police. In paras. 74, 78-81, 86 and 88, the majority of the Supreme Court of Canada held that the police officers’ conduct in relation to the accused must meet the standard of a reasonable officer in similar circumstances. Neither party has presented any evidence to establish the standards that a reasonable officer would have followed at the time or evidence that Georges would not have been charged if a reasonable practice had been followed. There is no expert evidence before me with regards to the reasonable standard practice of a police officer at the time.

[61] The second part of the tort of negligent police investigation requires that the plaintiff prove that he suffered compensable damage (Hill at para. 90).

[62] In Hill at para. 90, Chief Justice McLaughlin stated as follows:

On the other hand, lawful pains and penalties imposed on a guilty person do not constitute compensable loss. It is important as a matter of policy that recovery under the tort of negligent investigation should only be allowed for pains and penalties that are wrongfully imposed. The police must be allowed to investigate and apprehend suspects and should not be penalized for doing so under the tort of negligent investigation unless the treatment imposed on a suspect results from a negligent investigation and causes compensable damage that would not have occurred but for the police’s negligent conduct. The claimant bears the burden of proving that the consequences of the police conduct relied upon as damages are wrongful in this sense if they are to recover. Otherwise, punishment may be no more than a criminal’s just deserts (sic)– in a word, justice. (Emphasis added).

[63] In her dissent at para. 156, Justice Charron stated as follows:

…However, the distinction between an acquittal and a finding of innocence must be considered in assessing the potential ramifications of recognizing a tort of negligent investigation. The difficulty arises from the fact that our criminal justice system is not focused on identifying the innocent. The verdict in a criminal case is guilty or not guilty. A verdict of not guilty is not a factual finding of innocence; neither is an order on appeal overturning a conviction. A verdict of not guilty encompasses a broad range of circumstances, from factual innocence to proof just short of beyond a reasonable doubt.

... Should compensation be reserved to those accused who are factually innocent of the crime with which they were charged or convicted? If so, how should factual innocence be determined?

[64] Unfortunately, this case falls exactly into the situation that concerned Justices Charron, Bastarashe and Rothstein in dissent. At paras. 157 and 158, Justice Charron considered the options of awarding compensation to any wrongfully convicted person where there has been a negligent investigation on one hand, with an equally compelling argument that any compensation regime should be limited to the “factually innocent” to ensure that the persons who have in fact committed the offence, but his guilt could not be proven would have a possible means of profiting from the commission of a crime.

[65] At paragraph 159, Justice Charron referred to the statement by the Chief Justice at para. 64 stating that any suspect suing the police “bears the burden of showing that police negligence in the course of an investigation caused harm compensable at law”. The issue of whether an acquittal should be treated as conclusive proof of innocence in a subsequent civil trial was not been decided by the Supreme Court in the Hill decision.

[66] The comments of Justice Charron in Hill at para. 161 where she notes:

Therefore, from a criminal law perspective, there is no question that an acquittal must be regarded as tantamount to a finding of innocence. However, in the context of a tort action, we must come to terms with the reality that the person who committed the offence may well stand to benefit rather than lose from a botched-up investigation. The true victim in such cases is not the suspect but the public at large.

[67] I find that the absence of evidence of a reasonable standard of police behaviour, the novelty of the issue of determining who bears the onus of proving whether the plaintiff committed the offences on a balance of probabilities, and the credibility findings that will have to be made in order to determine whether Georges had possession of the cocaine and whether he ordered the stun guns constitutes a genuine issue requiring a trial in order to fairly and justly adjudicate this issue.

[68] I find that a complete factual record is required to decide whether the plaintiff bears the burden of proving his innocence, on a balance of probabilities, but would avoid the unfairness to award compensation to an individual who is factually guilty, or whether the defence bears the onus of proving, on a balance of probabilities, that the plaintiff was guilty of the charges, is best decided on a full factual record.

Disposition of Issue “d”

[69] For the above reasons, the defendants’ motion for summary judgment on this issue is dismissed and the matter is ordered to proceed to a trial of this issue, before myself if possible.

Costs

[70] Given the novelty of the legal issues raised, the divided success and the reasonableness in bringing the motion, costs are reserved to the trial judge in this matter.

Justice Robert J. Smith

Released: February 12, 2016