McCullough v. Hamilton Police Services Board; Nossey v. Hamilton Police Services Board, CITATION : 2016 ONSC 2638

COURT FILE NO.: 00-2685; 92-36313 DATE: 2016-04-21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Christopher Gordon McCullough and Rosslyn McCullough, plaintiffs (00-2685) AND: Hamilton Wentworth Regional Police Services Board, Steven Hrab, Gary Clue, Michael Hanmer and Bruce Graham, defendants

AND RE: Nicholas Nossey, Joan Nossey and Peter Nossey, plaintiffs (92-36313) AND: Gary Clue, Steven Hrab, Michael Hanmer and Bruce Graham, defendants.

BEFORE: Mr Justice Ramsay

COUNSEL: Neil Jones and Gregory McKenna for the plaintiffs; Paul Ryan and Kieran Dickson for the defendants

HEARD: March 21, 29, 31, April 1, 5-8, 11-15, 18, 19

ENDORSEMENT

[1] The two principal plaintiffs and their associated Family Law Act claimants sue the police for damages for malicious prosecution, false imprisonment, negligent investigation and breach of the Charter of Rights. The principal plaintiffs, Christopher McCullough and Nicholas Nossey, were jointly charged with murder in 1990. In 1991 the jury acquitted Nossey and convicted McCullough. McCullough’s conviction was set aside by the Court of Appeal in year 2000 on the basis of fresh evidence. A new trial was ordered, but the Crown declined to proceed.

[2] The parties agree that McCullough’s claim for false imprisonment is statute barred but that his claims for malicious prosecution and negligence, and Nossey’s claims for false imprisonment, malicious prosecution and negligence were instituted within the six-month limitation period prescribed by the Public Authorities Protection Act, R.S.O. c. P-38. The plaintiffs concede that their Charter claims depend on proof of at least negligence, with the result that I do not have to decide them.

[3] The two plaintiffs were charged at the same time as two other alleged participants in the murder. Steven Clarke, who testified against the plaintiffs for the Crown, pleaded guilty to forcible confinement and being an accessory after the fact of the murder. A fourth man, Terry Pearce, was jointly charged with the plaintiffs, but he was allowed to plead guilty to manslaughter after many of his statements to the police were excluded from the evidence against him. He did not testify at the plaintiffs’ trial, but his spouse, Tammy Waltham, did.

The murder

[4] On February 13, 1989 Beverly Ann Perrin, a 55-year-old school teacher, went with her daughter to visit her husband in the hospital. He had just had surgery for cancer. After the visit, she drove her daughter to night school in downtown Hamilton. Mrs Perrin did not make it home that night. She had been driving her husband’s car, a four-door sedan. Her body was found on February 15 in a field on Tapleytown Road.

[5] Mrs Perrin had been strangled by a ligature that was tied left-handed. The police found two napkins near the body. The Centre of Forensic Sciences reported no significant findings with respect to the napkins. Years later the Centre reported that one napkin was soaked with semen and the other contained three pubic hairs. The DNA profile generated from the napkin does not match any of the four men who were accused. It cannot be excluded as belonging to the donor of the pubic hair. The field in question was a Lover’s Lane at the time, so the napkins were not necessarily associated with the murder. To my mind, neither is the minute amount of semen that was transferred to the body. One of the perpetrators may have discharged semen onto his hand and transferred it to Mrs Perrin when manhandling or carrying her; but it is also possible that he picked it up unknowingly at the scene.

[6] The pathologist reported, “Although the clothing of the lower part of the body and breasts had been removed there was no visible evidence at autopsy of sexual assault.” The body had goose bumps, which indicates that Mrs Perrin was out in the cold at the time of death.

[7] Mrs Perrin’s car was found on February 16. It was parked in a garage at 11 Grandville Avenue. It had been jacked up and the two rear wheels were missing. Also missing was the centrepiece that covers the mechanism that triggers the horn. Property had been stolen from the trunk. The vehicle had been wiped clean and smelled of gasoline. Blood consistent with Mrs Perrin’s type was found on the front passenger seat and spattered on the front passenger window glass. A number of cigarette butts were found in the vehicle. Some are associated with Mrs Perrin’s husband. Mr Perrin told Staff Sergeant Clue that he had had a friend in the car who smoked Player’s Light, but unfortunately Mr Perrin died before the criminal trial. The forensic evidence that was available at the trial in 1991 suggested that none of the cigarettes had been smoked by McCullough, but the Player’s Lights could have been smoked by Clarke. According to evidence available to the Court of Appeal in 2000, none of the four men accused could be associated with any of the cigarette butts. The DNA profiles generated from the cigarettes belong to three other persons, two of whom are male. They are not the same males whose profiles were generated from the napkins. Some strands of hair found in the car were submitted for DNA analysis in year 2000. They relate to a further unknown male. Here, too, I doubt whether the items that were analysed are associated with the killers of Mrs Perrin.

[8] The car smelled of gasoline. The residue was tested by the Centre of Forensic Sciences, which confirmed that it was low-ethyl gasoline, which is consistent with stale or old gasoline. That fact was capable of confirming Steven Clarke’s later admission that he cleaned the car with gasoline that he kept in his apartment for cleaning paint.

[9] Mrs Perrin’s colleagues told the police that it was her habit to give candies to the children on Valentine’s Day. By February 13 she had not had time to buy candies. Sergeant Hrab, as he then was, found a new-looking candy wrapper at the scene where the body was found. This raised the possibility that after dropping her daughter off, Mrs Perrin went to a store to buy candy.

[10] The missing tires were never found. But talk of these tires lead the police to Terry Pearce.

The investigation

[11] When Mrs Perrin’s body was found, the investigation was assigned to the defendants Clue, Hrab, Hanmer and Graham. Clue was the lead. The police performed the usual collection and preservation of evidence from the scenes on Tapleytown Road and Grandville Avenue. They canvassed neighbours of the Grandville Avenue building and neighbours within a few concessions of the site where the body was found. They spoke to Mrs Perrin’s schoolteacher colleagues. They conducted grid searches near both crime scenes. They spoke to two men who had seen a man near the Perrin vehicle in the parking garage on Grandville.

[12] The week after the murder, Terry Pearce came to the attention of the police. A confidential informant told them that he had spoken about selling the tires from the Perrin vehicle. On February 20 and 21 and March 2, 1989 the police spoke to him. He lived near 11 Grandville Avenue. Terry Pearce denied to the police any knowledge of the tires or the homicide. The police spoke to people at his workplace to verify his story. They put him under surveillance for a time. They tried unsuccessfully to find the tires. They considered trying to contact an FBI profiler. In November the police had information that an inmate of the detention centre was talking about the murder. Hrab and his superior, Staff Inspector Jackson, recommended a request to the OPP for an undercover officer to put into the gaol. I do not know whether the request was transmitted to the OPP or not.

[13] Over the next several months the police followed a number of other leads including the possibility that the car had been stolen to use in drug smuggling or mistaken by drug dealers for such a car. They cleared two persons who knew the deceased. They offered a reward. A public appeal for information was undertaken in the press. The investigation made little progress.

December 1989 – Terry Pearce comes up again

[14] In December 1989 Ray O’Brien told the police that Terry Pearce confessed to driving the Perrin vehicle on the night of the murder. O’Brien said that shortly after the homicide, Pearce met him at Eastgate Mall and told him that he had been driving the vehicle, and a couple of guys were with him, one of whom was named “Lou”. O’Brien spoke to Perry Wease, a friend of Pearce’s, and Wease told O’Brien that Pearce had told him the same thing. The police asked for wiretap authorizations to intercept Pearce’s private communications.

[15] On January 12, 1990, the police spoke to J.M., a confidential informant. He told them that he hangs around the mall and knows Terry Pearce. At a party on Barlake Avenue Terry Pearce and a man matching Steve Clarke’s description were present. Terry was crying about driving the car at the murder. A week later J.M. spoke to “Nick”. He asked Nick and Nick told him that Pearce is one of the ones involved in the murder. Pearce drove the car back from the scene. Nick told J.M., “Don’t ask any more, he’s with a bad bunch.”

March and April 1990 – The police confront Pearce. Pearce leads them to Clarke. Pearce ponders the imaginary fingerprint.

[16] The wiretaps were in place by March 28, 1990. Hrab and Hanmer arrested Pearce, interrogated and released him that day in order to stir the pot. At the outset of the interview, Hanmer told Pearce, “all the guys in the [Eastgate] mall that you’ve ripped off for drugs, they are happy to talk to us. We know you drove the car.” Pearce replied that he was with Tammy the whole time.

[17] Hanmer said, “We know you were there. My partner thinks you killed her. I think you were there and someone else did it.” Pearce replied, “I don’t know anything.”

[18] They asked him about being at a party with a guy with false teeth. “You were saying ‘I just drove the car; I didn’t know she was going to get killed.’” Pearce identified the guy with false teeth as Steve Clarke, but said he did not tell Clarke that; Clarke told him.

[19] The officers showed Pearce a photo of a fingerprint that was lifted from the window of the Perrin vehicle and asked him what he would say if they told him it was his. [It was not.] He said, “I don’t know.” Pearce asked “What happens now?” The officers told him that it was up to him. They released him unconditionally.

The police go straight to Steven Clarke

[20] The officers then went to the gaol and spoke to Steven Clarke, who was detained on unrelated charges.

[21] Clarke said that Pearce told him he drove the car, but Clarke did not think Pearce was the killer. Clarke said he found out about the murder the day after it happened. He saw the police investigating. He denied being involved with the killing or cleaning the car after. Clarke says that it was Pearce who was talking about the murder at the party. Pearce told him the woman was not supposed to die. There was more than one person with him, but Pearce did not say who. Hrab told Clarke that he thought Clarke knew more, and that they would be back.

May and June 1990 – the investigation comes to a head

[22] From the intercepted communications, it became clear that Pearce and Clarke were associates. They did not want to inform on each other, but neither did they trust each other entirely. They both wanted to know who had told the police whatever the police seemed to know. They were communicating with Clarke through their respective girlfriends, Kim Kellar and Tammy Waltham. Clarke thought that Chris McCullough and Mitch Petrolia had informed on them, and this information was conveyed to Pearce and Waltham by Kellar.

[23] The police spoke to various members of Terry Pearce’s family. The police made it clear that it was to his advantage to tell them who was involved if he was only the driver. One family member, Terry Pearce’s aunt Laura Pearce, spoke to Terry at length. Her intervention led a statement on May 22, 1990 in which Pearce first admitted involvement to the police and identified Chris McCullough as the killer and rapist. In two statements Pearce admitted driving the Perrin vehicle. He also said Robert Rennie was present.

[24] On May 23 and again in a formal statement on May 29, Tammy Waltham told the police that Chris and another guy picked up Terry Pearce. She identified the other guy as Robert Rennie. She also implicated Clarke.

[25] On May 24, 1990 Terry Pearce was arrested and charged with forcible confinement and accessory after the fact of murder. He was released on bail on May 29.

[26] On May 24, 1990 Christopher McCullough was arrested and charged with first degree murder.

[27] On June 4, 1990 Steven Clarke implicated Christopher McCullough, but maintained his own innocence. He said that Pearce told him about McCullough.

[28] On June 13, 1990 Steven Clarke admitted being present in the car when McCullough pulled up, but not later on when the murder took place. He said he was with McCullough, Pearce and a fourth man, who resembles a photo of Brian Rushton.

[29] On June 14, 1990 Pearce and Waltham spoke to Hanmer on the telephone and both put Clarke in the vehicle, although Pearce waffled about Clarke. Tammy Waltham wanted to see photos of the fourth man. Hanmer said that he wanted the information to come from them. “If you and Clarke pick the same man, we’ll know we’re on the right track.”

[30] On June 17, 1990 Pearce in the presence of Waltham telephoned Clue to ask for help with a problem they were having with their baby’s grandparents. Pearce told Clue that the other man was Nick, the short guy from the mall with reddish blonde hair.

[31] On June 18, 1990 Pearce, Waltham and Clarke in separate interviews identified the remaining suspect as Nicholas Nossey.

[32] On that date, June 18, Clarke for the first time told the police that he was present at the crime. He said that he, McCullough and Nossey were at the A & P on Barton Street looking for a car to steal. Chris was high on drugs and beer and he, Clarke, was doing a little bit, too. So was Nick. Mrs Perrin came out of the store and returned to her car. They got her out of the driver’s seat and put her in the back. They drove to Pearce’s and picked him up. Pearce drove. Tammy Waltham was present and actually got into the car for a brief time before they left. Chris was hitting Mrs Perrin because she was screaming. Terry parked by a pathway near Lake Avenue. Chris molested and raped Mrs Perrin and choked her with his hands. Clarke and Nossey looked in the trunk for something to steal. Nick found the rope. He gave it to Chris. Chris choked her to death. Nick said, “We can’t leave her here.” They drove a long way to the field where they laid her down and left. They went back to 11 Grandville and went their separate ways. The next day Terry called him over to clean the car. He did. He and Terry split Mrs Perrin’s groceries, which consisted for the most part of chocolate. At the end of the interview Clarke admitted taking part in the sexual assault by holding Mrs Perrin while McCullough undressed her and by fondling her breasts himself.

[33] On June 19, 1990 Clarke was charged with forcible confinement and accessory after the fact of murder.

[34] On June 20, 1990 Nicholas Nossey and Terry Pearce were charged with first degree murder.

Developments after the charges were laid

[35] The police investigated McCullough’s and Nossey’s alibis. There were problems with both.

[36] Over the course of his pretrial detention McCullough spoke to five other prisoners about his case. They testified that he confessed his involvement to them. At the criminal trial and here McCullough denied having made the utterances that his fellow prisoners attributed to him.

[37] One of these prisoners, Matthew D., arranged for McCullough to speak to an undercover officer over the telephone and in person in the visiting room. The telephone call was tape recorded. The visiting room conversation was not. McCullough counselled the undercover officer to murder Steven Clarke in return for favours already performed by Matthew D. and future consideration from McCullough.

[38] The officer testified at the criminal trial that in the visiting room conversation, he asked McCullough, “So there’s just the two of you?” to which McCullough replied, “No there was four of us but the other two I’m not too worried about.” McCullough denies that this exchange took place.

[39] In the tape recorded conversation McCullough began with pre-arranged code words about a mouse that got poisoned. The following transpired:

CM: I need a little bit of the treatment that happened to the mouse. … You know what happened to that eh? U/c: Tits up in two seconds buddy. CM: Yeah, well that’s what I need. CM: His name is Steve Clarke. … He’s in max. U/c: You got a time when do you want this done? CM: By the end of the month. U/c: By Labour Day, eh? CM: Yeah. U/c: That shouldn’t be a problem.

After the murder trial McCullough pleaded guilty to counselling to commit murder and was sentenced to 10 years imprisonment.

McCullough’s appeal

[40] The Crown agreed to a new trial because of the developments in the DNA evidence. In addition, Matthew D. and Tammy Waltham testified before the Court of Appeal. Both recanted their evidence at trial, although not in such a way as to exculpate McCullough on the charge of counselling to commit murder. The Court ruled that Tammy Waltham was entirely incredible. Her recantation would not have affected the result of the trial. Matthew D., on the other hand, was an accomplished liar and would have made an impressive witness. His recantation, if known at the trial, could have affected the result. On the basis of D.’s recantation and the new DNA evidence the conviction was set aside.

[41] McCullough asked the Court of Appeal to acquit him based on the fresh evidence. The Court declined to do so and instead ordered a new trial. There was still the evidence of the remaining inmates as well as the counselling to commit murder and an utterance about the murder attributed to McCullough by the undercover officer in the visiting room meeting. The Crown made the decision not to proceed in June of 2000. At that point, then, the criminal proceedings terminated in McCullough’s favour.

[42] Since the murder sentence prevented the trial judge from giving McCullough credit for pre-trial custody on the charge of counselling murder, the Court of Appeal reduced the sentence on that charge to time served, which was almost 9 years from arrest until release on bail pending appeal. During that time, McCullough also served a six month sentence for breaking and entering.

[43] A more detailed summary of the investigation is contained in the appendix to this endorsement.

The development of Clarke’s, Pearce’s and Waltham’s accounts before charges were laid

[44] The respective courses of Clarke’s, Pearce’s and Waltham’s changing statements to the police can be broadly summarized as follows.

[45] Pearce’s account: a. I don’t know anything about tires or a homicide. b. It was Steven Clarke who spoke to me at the party. c. Steven Clarke showed up at my house with a red-headed guy. He later told me what happened. Steve asked me to remove the tires. d. I got into the car with Chris McCullough and Robert Rennie, not Nossey. Steven Clarke cleaned up the car the next day. e. It was McCullough, Clarke and Nossey with me at the murder. I drove. McCullough was the killer.

[46] Waltham’s account: a. Chris McCullough came by with Robert Rennie (Rennie in a red ball cap) and picked up Terry Pearce. The lady was in the car. b. Clarke was in the car with McCullough and Pearce. I don’t know Lou, the fourth man. It was not Nick Nossey. c. It was McCullough, Clarke and Nossey with Terry in the car before they drove away together with the lady who was murdered.

[47] Clarke’s account: a. I wasn’t there. Speak to Chris and Mitch. b. I saw the car the day after. I took a tire iron from the trunk. Pearce told me he sold the tires. c. I wiped down the car when Pearce asked me to. Pearce told me the murder should not have happened. d. Pearce told me Chris and Mitch were with him, and Chris did the choking. e. Pearce told me Chris and another guy were with him. He never mentioned Mitch. Maybe the other guy was Ray O’Brien. f. I was there when Pearce, McCullough and a guy who looks like the photo of Brian Rushton showed up. Not Nossey. I was not at the murder. g. It was McCullough, Pearce and Nossey with me at the murder. Pearce drove. McCullough beat, raped and choked the victim. Nossey gave orders. I was angry about it but I participated in some fondling. All of us hit her.

Wiretaps

[48] At different times, communications were intercepted to which any of Tammy Waltham, all four accused men and others were party. All of these people were present at one time or other when the possibility of being overheard was mentioned by someone. It is not possible to be confident that any particular utterance was unguarded.

[49] In general, in statements to the police and intercepted utterances Nossey and McCullough said what innocent men would have said. That need not have excluded from the minds of the detectives the possibility that they were simply being guarded, but they never said anything inculpatory.

[50] Clarke, Pearce and Waltham contradicted themselves and each other over the course of the interceptions. After Pearce was charged with first degree murder he at least twice expressed doubt that they had chosen correctly in naming Nossey, although Tammy Waltham remained confident. As a whole, the intercepted communications were damaging to the credibility of all three. Importantly, they captured Pearce’s idiotic claims that he could not remember who was with him or whether he was present or not. They also captured Clarke’s and Pearce’s belief that McCullough had informed on them.

Credibility of the witnesses at the present trial

[51] Nicholas Nossey testified. I found him to be a credible witness. He had a disadvantaged upbringing and at the time of the events in question he was a bit of a rough young man. He hung around with the wrong people, smoked marijuana and picked up a conviction for possession of stolen property. He was too loyal to his anti-social friends: he might have helped the police if he had told them who had told him about Terry Pearce. After his incarceration Mr Nossey settled down. Now in his mid-forties he is a family man with a steady job and a productive, responsible life.

[52] Mr Nossey testified that a few days before his arrest he was approached by Terry Pearce, Tammy Waltham and Perry Wease, who asked him whether he knew Chris McCullough. He said, “Sounds familiar. Who is he?” They walked away. I believe him. Terry Pearce actually confirmed running into him in the mall in a conversation with the police. I think Pearce and Waltham were setting him up. To identify him plausibly they wanted to be sure that he knew Chris McCullough. If he had been present at the murder, they would not have needed to do so. Pearce would have known. However, the police could not have known this.

[53] Christopher McCullough also testified. The issue of liability does not turn on his credibility. It turns on the conduct and state of mind of the police. But I must say that as a witness I found Mr McCullough to be wanting. He started off with a deficit, because as a matter of common sense, when you try to get the main witness against you killed, that shows a serious lack of respect for the justice system. It creates a lasting bad impression of your character for honesty. McCullough’s testimony did nothing to alleviate the problem. He tried to minimize what he had admittedly done. “They waved a carrot in front of me and I took it.” That explanation fell completely flat with me. And it is not borne out by the tape recorded telephone call between him and the undercover officer, either. It did not help matters that Mr McCullough was combative and arrogant on the witness stand.

[54] Three of the detectives who were defendants testified. I found Mr Clue, Staff Sergeant Hrab and Mr Hanmer to be credible witnesses. There were many things that they could not remember, especially Clue and Hanmer who have been retired for years, but I do not hold that against them given the passage of time. I thought that they were all making an honest effort to account for these events of long ago. Staff Sergeant Hrab struck me as particularly astute and well prepared. His memory is quite good in spite of the lapse of time, and he candidly admitted when he could not remember things that might well have helped him. Mr Hanmer’s recollections of the demeanour and body language of Tammy Waltham that caused him to come to conclusions about her reliability must be treated with caution because of a serious inconsistency on one such point with his evidence on an earlier occasion. I think that he does not remember as well as he thinks he does. Given the passage of time, it does not surprise me. The matter is not decisive in any event. The objective component of reasonable and probable grounds depends by definition on objective considerations, not subjective opinions about demeanour.

Malicious prosecution

[55] There are four elements which must be proven for a plaintiff to succeed in an action for malicious prosecution:

(a) the proceedings must have been initiated by the defendant; (b) the proceedings must have terminated in favour of the plaintiff; (c) the absence of reasonable and probable cause; and (d) malice, or a primary purpose other than that of carrying the law into effect: Nelles v. Ontario, [1989] 2 S.C.R. 170.

[56] The plaintiffs are not pressing for a finding of malice. I think they are wise to take this course. Nothing in any of the alleged shortcomings of the investigation causes me to infer any malicious or improper intent or a primary purpose other than that of carrying the law into effect. I accept without hesitation that the goal of the police was the obvious one – to find and punish the perpetrator of the outrage that had been committed against Mrs Perrin. They knew that Terry Pearce was the driver. They wanted the killer. The plaintiffs’ claims really come down to negligence.

Negligence

[57] The police are not immune from liability under the law of negligence and the tort of negligent investigation exists in Canada. Police officers owe a duty of care to suspects. Their conduct during an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. Police officers may be accountable for harm resulting to a suspect if they fail to meet this standard: Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129.

[58] The standard of care of a reasonable police officer in similar circumstances should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Police officers may make minor errors or errors in judgment without breaching the standard. This standard is flexible, covers all aspects of investigatory police work, and is reinforced by the nature and importance of police investigations. It requires that the police have objectively reasonable grounds before making an arrest.

[59] The police arrested McCullough and Nossey at different times, in different stages of the investigation and therefore with different grounds. I have to look at each case separately.

Probable cause for the arrest of McCullough

[60] A police officer acting reasonably insists on reasonable grounds before making an arrest. I first consider whether there were reasonable grounds to arrest McCullough on May 24, 1990. I use the terms “reasonable grounds,” “reasonable and probable grounds” and “probable cause” interchangeably.

[61] As of May 24, 1990 the following circumstances obtained:

a. There was no physical evidence to tie McCullough to the crime; b. The only witnesses who tied him to the crime were Terry Pearce and Tammy Waltham, who were not independent of each other; c. There was reason for Pearce and therefore Waltham to have an animus against McCullough – they thought he had informed on him; d. Clarke supported Pearce’s evidence but only to the extent that he said that Pearce had told him that Chris was with him; e. Clarke, too, had reason to have animus against McCullough; f. Pearce, Clarke and Waltham had reason to lie – Pearce and Clarke did not want to be implicated; Waltham did not want Pearce to be implicated; g. Pearce and Waltham had already contradicted themselves.

[62] There was further reason to be cautious with Pearce. He had tried to float a false alibi with Perry Wease. He had contradicted himself on many things and had maintained the idiotic pretense that for some reason he did not know or could not remember whether he had been present. Clearly, the fingerprint suggestion had flummoxed him and clearly, he knew what had happened.

[63] On the other hand, from Pearce’s reaction to the fingerprint suggestion and the evidence of the two informants, there was good reason to believe that he had been present at the crime, driving the car. It was obvious from the nature of the crime that he could not have committed it alone. It would have taken at least two, or more probably three or four participants, to control the victim as she was being driven from the scene of the carjacking to the scene of the murder, particularly if this involved a trip to Pearce’s house along the way, which the police seem to have believed. From the earliest days, the available information suggested that Pearce was involved, he was involved with Clarke, and he was involved with two others.

[64] When they charged McCullough, then, the police had Pearce, a problematic witness, but one with knowledge of the affair, and Tammy Waltham, who was not independent of him, but who gave an account that did not depend on hearsay from Pearce – she said she saw McCullough and the victim come and pick up Pearce. Tammy Waltham identified McCullough from the outset. While Tammy Waltham was not a perfect witness, I find that relying on her on May 22, 1990 was not objectively unreasonable in the circumstances. The arrest of McCullough was justifiable on her account alone.

[65] I do not agree with the defence expert, Mr Mendelson, that the police were unreasonable not to wait. They could have waited, but it was open to them to think that McCullough’s arrest was “critical” as Staff Inspector Jackson did. It could have seemed critical because McCullough was thought to be the author of a predatory sex crime. That sort of crime is often committed by a repeat offender. In any event, once they had reasonable grounds they were not required to wait.

[66] Much time was wasted in this trial with criticism of the photographs that were shown to the witnesses. The witnesses all knew who was and was not present. At times they lied. At times they may have told the truth. They were never mistaken. They could just as well have been shown photographs of farm animals. They would have picked out whomever they picked out.

[67] Mr Mendelson also thought that the police should not have relied on what they had as of May 22 in the face of an inconsistency with the pathology report. To my mind, there was no inconsistency. On a fair reading all the doctor said was that there was no physical evidence of rape. A rape can be committed without leaving physical evidence. That is so patent that in argument Mr Jones was reduced to arguing that the failure at least to ask the pathologist about the issue showed arrogance on the part of the investigators. I do not see that. I think that this criticism of the officers was contrived.

[68] I also think Mr Mendelson stated too highly the obligation on the police to find corroboration before making an arrest. There was nothing truly corroborative. But there was reason to believe that Pearce and Waltham had knowledge of the affair because of their admissions against interest and the information of the confidential informants. In amongst the lies and inconsistencies were a few consistent strains – Pearce driving the car with other guys, Clarke with a red-headed guy, Clarke cleaning the car, and in the case of Tammy Waltham, Chris McCullough’s involvement. The belief of the police was not arbitrary or fanciful. It was grounded on statements of eyewitnesses, flawed though they were.

Probable cause for the arrest of Nossey

[69] I turn now to the arrest of Nicholas Nossey on June 20, 1990. If anything, Pearce and Waltham were less credible now because of their flip-flopping on the involvement of Rennie as opposed to Nossey. It was a relevant consideration that not only had they failed to point to Nossey, they had deliberately pointed to an innocent person. The same could be said of Clarke, who had pointed to Petrolia and O’Brien without justification. Even in his “epiphany” of June 18, Clarke said some things that made no sense and had to reverse himself when Hanmer brought this to his attention. For example, if McCullough and Nossey drove away leaving Clarke and Pearce, how is it that Clarke and Pearce had the car and the keys the next day? They could not. This was no small thing. But on June 18 Clarke finally admitted taking part in the abduction, murder and even sexual assault of Mrs Perrin. An admission against interest is a classic indicium of reliability. Staff Sergeant Hrab testified that this was the development that caused him to believe that Clarke was finally telling the truth about the identity of his accomplices. I found this very plausible. I have no doubt that Hrab sincerely believed so. I also find that his belief was objectively reasonable.

[70] There was opportunity for Clarke to collude with Pearce and Waltham, but the police did not have strong reason to think that such a thing had happened given the timing of the statements, one right after the other. It was open to them acting reasonably to rely on Clarke’s identification of Nossey in formulating reasonable grounds to arrest him.

[71] Nossey’s committal for trial is further support for the existence of reasonable grounds: Temilini v. Commissioner, OPP (1990), 73 O.R. (2d) 664, 669 e (CA). There never was any more evidence against Nossey than what was available at the time of his arrest. The same point cannot be made against McCullough, because he created significant evidence against himself when he tried to have Clarke killed.

Negligence and false imprisonment

[72] The existence of probable cause disposes of the negligence claim and Nossey’s claim of false imprisonment, which only lasted for 24 hours in any event, because once he was remanded by court order he was no longer in the custody of the police. I shall however comment on some of the other factual questions raised in the context of negligence.

[73] The officers made it clear to Pearce that if he was the driver, he would be better off giving up his accomplices. Such inducements are not properly made to a suspect, but if necessary in some circumstances they can be offered to a witness. When they were made, Pearce was chiefly in view as a witness. The officers took a calculated risk that what Pearce might say would be inadmissible against him, and could be untrue. They certainly were aware of the latter risk with respect to all three witnesses. The officers made efforts to manage the risk. On more than one occasion, when a witness was fishing for information, the police refused to give it. They investigated the leads that Pearce, Waltham and Clarke threw up, whether they thought them valid or not. I agree with the opinion of Mr Grady, the defence expert, who said that what the police did was consistent with taking a calculated risk out of necessity. They had nothing much to work with. Once Clarke finally admitted his complicity he became much more useful than Pearce had been. At that point Pearce was discarded as a witness and left to face the consequences. His statements in the May 22-24 period were ruled inadmissible against him, although the rest were not. He ended up being convicted of manslaughter. In the circumstances that was within the range of outcomes that might have been contemplated. In similar cases often the driver is not found to have the subjective foresight of death that is required for murder.

[74] I do not think that the police fed information to Pearce, Waltham or Clarke improperly. They never revealed what little “hold back” information they had. “Hold back” is information known only to the police and the perpetrator. The position of the people in the car was not known to the police. Neither was the number of perpetrators. The nature of the ligature and its composition was never revealed during interviews. Neither was the left-handed knot. In order to manipulate the witnesses into talking, the police had to give the impression that they knew more about the offence than they did. They had to impart some information about the crime to the person interviewed. I do not think that they did so carelessly or inappropriately. They made it clear to Pearce and Clarke that they knew they were involved, but they needed them to reveal just what happened.

[75] I also think it worthy of mention that before arresting anyone the police briefed and consulted with Crown counsel. Consultation does not remove responsibility from the police for making an arrest, but it suggests to me that the officers were acting carefully and in accordance with sound police practice.

[76] This was a very difficult investigation. It is unfortunate that Nossey was victimized, but he was victimized by Waltham, Pearce and Clarke. If McCullough was victimized, that too was their fault.

[77] The actions are dismissed. The defendants may make brief written submissions to costs on or before April 29, 2016. The plaintiffs may do the same on or before May 13.

J.A. Ramsay J. Date: 2016-04-21

Appendix – Chronology of the investigation

Date Ex. 1 tab Feb 13, 1989 Beverly Ann Perrin goes missing. Feb 15, 1989 Her body is found on Tapleytown Road. Feb 16, 1989 Her vehicle is found at 11 Grandville Avenue. Feb 18, 1989 1 Two neighbours tell police that they saw a man near the vehicle at 11 Grandville Avenue. The description is consistent with Steven Clarke. [Eventually, they will pick Clarke out of a photo lineup.] Feb 20, 1989 A confidential source tells police Terry Pearce or his associate was offering to sell tires from the Perrin vehicle. Feb 20, 1989 2 Pearce is interviewed by police. He denies involvement with tires or homicide to police. Police continue to visit him and conduct surveillance. Feb 21, 1989 3 Pearce again denies involvement with tires or homicide. Mar 02, 1989 4 Pearce a third time denies involvement with tires or homicide. Mar – Dec 1989 Police follow leads, which include some false trails about smuggling drugs in tires. Two persons associated with victim are cleared. A reward is offered. A media appeal takes place. Dec 1989, Jan 1990 6,8,9 Another confidential source points police toward Ray O’Brien. O’Brien tells police on January 25, 1990 that Pearce told him shortly after the murder that he was driving the vehicle with “Lou” and a couple of other guys. O’Brien has seen Pearce at Eastgate with a guy named Lou, but he does not know who he is. O’Brien also says Perry Wease told him that Pearce had told him the same thing. Jan 12, 1990 5 Confidential source “J.M.” tells police he knows Terry Pearce. At a party on Barlake Avenue Pearce was crying and talking about driving the car. He mentioned his girlfriend being present. Pearce was talking to an older guy with false teeth. A week later Nick Nossey told the source that Pearce was involved in the murder by driving the car, “but don’t ask any more. He’s with a bad bunch.” Jan 24, 1990 7 Nicholas Nossey tells police he had heard about Pearce being the driver at the murder, but refuses to say who told him. He says he had been at a party with Pearce and Clarke. Mar 28, 1990 Wiretaps of Pearce are put into place for two months. [After two months they will be renewed for a further two months adding Steven Clarke as a target.] Mar 28, 1990 15A Police arrest, interview and release Pearce to stir the pot. They tell him, “the guys in the [Eastgate] mall that you’ve ripped off for drugs are happy to talk to us. We know you drove the car.” Pearce: I was with Tammy the whole time. Hanmer: My partner thinks you killed her. I think you were there and someone else did it. Pearce: I don’t know anything. Q. What if I told you we found your fingerprint in the car? Pearce: I don’t know . Q. You were at a party with a guy with false teeth. Pearce: That was Steve Clarke but I did not tell him I was driving. Clarke told me he was driving. Mar 28, 1990 15B Police speak to Steven Clarke. Clarke tells them that Pearce told him about driving the car at the party on Barlake Avenue. “I was not at the murder. Pearce told me, ‘She wasn’t supposed to die.’ I did not clean the car up.” Mar 29, 1990 16 Police tell Pearce’s grandparents that they know he drove the car and solicit their help. They advise that Terry Pearce offered his grandfather two tires from the Perrin vehicle. Apr 1, 1990 17 Pearce’s grandparents tell police that Terry said the victim was sexually assaulted, poked with a knife and strangled with a rope. Apr 1, 1990 18 In an intercepted drunken telephone call, Pearce tells his aunt Laura Pearce that “apparently they found my fingerprints in the car.” Tammy Waltham, also present, says, “I was with him every night.” Tammy mentions Steve showing up at the door. Terry says the police beat him. [He will later recant this allegation.] Apr 1, 1990 19 Barb Pearce, another aunt of Terry Pearce, tells him that the police know he was driving the car. He says he didn’t. She tells him they have your prints on the wheel. He says, “They are full of shit.” He also says that he was at the car. Tammy, also present with Barb, offers that as an explanation for the fingerprint. Apr 1, 1990 20 Barb Pearce tells Hrab that Terry told her it was Steve Clarke who talked about the murder at a party. Apr 2, 1990 20B Police tell Pearce if he didn’t kill her, they need him as a witness. Pearce says Steve Clarke showed up in a car driven by a red-headed guy. He thinks Clarke did the murder because Clarke told him about the rope. Clarke asked him to remove the front tires. Apr 2, 1990 21 Hrab speaks to Kim Kellar. She doesn’t know any names. Apr 2, 1990 22 Kim Kellar speaks to Terry Pearce and Tammy Waltham. Apr 2, 1990 23 Clarke tells Pearce “Chris and Mitch are framing us.” Pearce says, “I can’t help you. I wasn’t there.” Apr 2, 1990 24 Hrab receives Barb Pearce’s notes, in which Terry Pearce suggests Perry Wease as a possible alibi for Terry. Apr 4, 1990 25 Perry Wease tells police that Pearce was with him on the evening in question. When he starts talking about drinking beer in the back yard on a warm summer evening, all concerned realize that he is not a good alibi for February 13, 1989. Apr 8, 1990 26 Tammy Waltham tells Terry Pearce, “Chris Boya, Chris McCullough and Mitch framed you.” Apr 9, 1990 27B Clarke tells police he was not involved in the murder. “Go speak to Chris and Mitch.” Told that he was seen by the car, he says he was by a different car. Apr 10, 1990 28 Shown a photograph of the car, Clarke manifests serious nervousness to the point of physical upset. Clarke admits that he opened the trunk of the car. Apr 11, 1990 29 Hrab interviews Mitch Petrolia. Apr 30, 1990 32A Kim Kellar, Clarke’s girlfriend, tells Clue that Clarke does not know anything. She was with him the whole time. She says, “Go talk to Lou, Chris Boya and Mitch.” She says she has been talking to Tammy Waltham. She tells them if they want to talk to her again, “Get a warrant.” Apr 30, 1990 32B Clarke tells police to look for Chris Boya and Mitch. When he was around the car he threw the tire iron into a dumpster and took a box with jewellery. He dumped a bloody blouse in the chute at 40 Grandville. He saw the car from his apartment. [That was impossible.] Pearce told him he got and sold the tires. May 2, 1990 33, 34 Clarke says he was not present at the murder, but he did wipe the car down at Pearce’s request. He tells them he is left-handed. Pearce told him, “We borrowed a car for a joyride. It shouldn’t have happened.” Clarke wiped the car with gasoline that he had on hand to clean paint. Clarke admitted that what he said about the jewellery and blouse was not true. Clarke says Pearce told him he was involved with Chris Brown or Boya and Mitch Petrolia . Chris was sitting behind the lady and he instigated the assault. Clarke does not pick anyone out of a set of photos that includes a photograph of McCullough and a second man also named Chris McCullough. May 12, 1990 37 Police tell Laura Pearce that they will be arresting Terry. It’s a matter of what charge. They want the killer. May 14, 1990 40 Laura Pearce tells Terry Pearce she thinks he is being stubborn. She asks, “Do you believe you were there?” He says “I do and I don’t. I’m afraid I might have been.” May 15, 1990 39B Police interview Mitch Petrolia again. He admits knowing McCullough, but has not seen him for some years. May 15, 1990 39A Kim Kellar complains to Clue and Hrab that Mitch Petrolia has threatened her. May 16, 1990 43 Clarke tells Hrab adamantly that Pearce told him that Chris and Mitch were present, and Chris did the choking. May 16, 1990 43 McCullough tells Hrab that he knows Clarke, Pearce and Mitch Petrolia and agrees to come in for an interview the next day. May 17, 1990 49 Steven Clarke calls Terry Pearce and tells him, “They know I drove the car. I never told you she was beaten and raped.” Pearce says, “I don’t understand all of this.” May 17, 1990 47 McCullough tells Hrab he does not know about the murder; apart from a month and a half ago he has not seen Clarke since 1987; he knows Mitch Petrolia; there is no way his print can be on the car; he was not there. Given the joyride gone wrong scenario, he does not bite. May 17, 1990 48 Pearce tells Laura Pearce he still has a memory block. May 17, 1990 44 Pearce tells Leamon Sayer “I don’t remember yet.” May 18, 1990 52 Laura Pearce tells Terry Pearce she hopes he talks to a doctor. May 18, 1990 53 Tammy Waltham tells Leamon Slayer she does not believe that Terry really doesn’t remember. She says [on the day in question] he came into the house and said he was going out and did not come back for five or six hours. She can’t remember who he went with. “I’m thinking Steve.” May 18, 1990 54 Dan Wells tells Hrab that a prostitute named Kim told him that her husband Steve Clarke strangled the woman with a seatbelt and left her in a field. May 18, 1990 Police consult Crown counsel. May 20, 1990 55 Tammy Waltham tells a friend that the police said they saw fingerprints all over the steering wheel. She says they found one person in the car who said Terry was driving and the guy sitting behind the lady strangled her with a seatbelt. May 21, 1990 56 McCullough tells Kim Ruttan he is being investigated for murder so he has to figure out what he was doing in February 1989. May 22, 1990 57 Hrab and Clue speak to Laura Pearce. May 22, 1990 58 Laura Pearce tells the police that Terry Pearce wants to see a shrink to help him remember. Hrab says, “We don’t think he had a hand on her. He’s got to be smart enough to know he has the opportunity to get himself out from under.” The police do not believe that Terry does not remember. Laura says that Terry wants to see photos. The police refuse. Clue says, “We can’t put words in his mouth. We are trying to do an honest and forthright investigation,” and “We are not going to tell him what to say.” May 22, 1990 60 Laura Pearce asks Terry to come over. May 22, 1990 62 Terry Pearce confesses and implicates Chris McCullough and possibly Steven Clarke. He calls the police from Laura’s. He tells Hrab Chris and another guy picked him up. He is sure it was Chris McCullough. He is not sure if the other guy was Steve Clarke. He had seen the guy before. He blames Chris for the violence. May 22, 1990 65 Terry Pearce meets Hrab and admits that he got the tires and sold them to Ed Collins and that he called Steve Clarke and asked him to clean up the car. He says they drove up the mountain. He picks out Robert Rennie’s photo and identifies him as the other guy. He says Chris committed rape before strangling Mrs Perrin. Pearce is charged with forcible confinement and accessory after the fact of murder. [He will be released on bail on May 29.] May 22, 1990 Police consult Crown counsel. May 23, 1990 71A Tammy Waltham tells Clue that Chris came by twice with an old lady in the car. Tammy got in the front seat, but got out before Terry and the men drove away. She picks out a photo of Robert Rennie as the other guy. She says he was wearing a red ball cap. She puts Steven Clarke in the vehicle as well. May 23, 1990 Police consult Crown counsel. May 24, 1990 McCullough is arrested and charged with first degree murder. May 24, 1990 80 Pearce is charged with forcible confinement and accessory after the fact of murder. May 29, 1990 84 Tammy Waltham gives a typed statement. She says Chris came by in the car with the woman. Chris wanted Terry to drive because they were impaired. May 29, 1990 83A The police interview Robert Rennie. May 31, 1990 Shirley Janveau tells police McCullough was babysitting for her the night of the murder. [In June, however, her friend Margaret Robertson will tell the police that Chris never babysat for Shirley. Shirley Janveau’s employer will say that she did not work on February 13 and 14, 1989. But Shirley’s husband will confirm that Chris was over a lot.] June 4, 1990 87 Clarke implicates McCullough but maintains that he was not present himself. Clarke quotes Terry Pearce as saying Chris McCullough was in the car for sure. He never mentioned Mitch. “I just assumed it was Mitch because Mitch and Chris hang around.” June 5, 1990 McCullough’s residence is searched. Hashish is found, but nothing related to the murder. June 12, 1990 91 Terry Pearce tells Clue that he is sure Rob Rennie is the third person. Cocaine is the common link between Rennie and McCullough, according to Pearce. June 12, 1990 90 Laura tells Hrab that Tammy told her she is sure the guy she picked out (Rennie) is the guy in the car. June 13, 1990 93 Clarke now admits being present with McCullough, Pearce and a guy who looks like the photo of Brian Rushton some time before the murder. Cautioned and informed of rights, Clarke is told, “We know you were in the car.” Clarke then admits that he was at some point, but he did not see the murder. He says McCullough pulled up with another guy. McCullough wanted him to go for a joy ride. The lady was there, bound and gagged. Clarke drove to Terry’s and Terry got behind the wheel. The next day Terry told him to clean the car. Shown photographs, Clarke did not pick out the photo of Nicholas Nossey. He said of a photo of Brian Rushton, “He looks similar.” June 14, 1990 96 Hanmer has a long telephone conversation with Tammy Waltham. He wants to know the name of the fourth guy, “Lou”. Tammy wants to see a photo. Hanmer tells her he would rather the information came from her. Tammy says Mitch does not know anything about the incident at all. She says that when Terry was on the telephone with Clarke, Terry was concerned that the line was tapped. Given a number of names as the fourth man, including Nick Nossey, Tammy says “no” to all of them. Waltham and Pearce both say that Clarke was also in the car, although Pearce waffles. June 15, 1990 Police consult Crown counsel. June 17, 1990 97 Pearce, with Waltham in the background, telephones Clue to ask for help with their baby’s grandparents. Pearce tells Clue that the third man is Nick, the short guy from the mall with reddish blonde hair. June 18, 1990 99A At noon, Terry Pearce identifies Nicholas Nossey’s photo. June 18, 1990 99B At 1 pm, Tammy Waltham identifies Nicholas Nossey’s photo. June 18, 1990 99C Graham and Hanmer tell Clarke, “We know you know the fourth person.” Clarke identifies Nicholas Nossey’s photo and admits for the first time being present at the murder. Clarke gives an account in which he, McCullough and Nossey went to the A & P near Hwy 20 and Barton and decided to steal the Perrin vehicle, which was parked there. They waited for Mrs Perrin to come back to the car. When she did the three of them put her in the back seat. They drove to Terry Pearce’s. At that point Terry took over driving. They took Mrs Perrin to a pathway near Lake Avenue where McCullough raped her and choked her. Clarke tried to talk McCullough out of it, but McCullough said, “She can identify us.” Nick found the rope in the trunk and gave it to Chris. Chris killed her. Nick said, “We can’t leave her here.” They drove to [Tapleytown Road] and left her in a field. The next day Clarke cleaned the car with gasoline and split the groceries with Clarke. The groceries included chocolates. The next day Clarke admits that he and Pearce held Mrs Perrin while McCullough undressed her, that he, Clarke, hit her himself and even fondled her breasts for a short time. June 19, 1990 101 Steven Clarke is charged with forcible confinement and accessory after the fact of murder. June 20, 1990 Police consult Crown counsel. June 20, 1990 102, 106 Nicholas Nossey is arrested and charged with first degree murder. In the cells he says to Steven Clarke, “They even knew the colour of the ball cap I used to wear.” June 20, 1990 103 Terry Pearce is re-arrested and charged with first degree murder.