CITATION: Tremblay v. Ottawa Police Services Board, 2016 ONSC 4185

COURT FILE NO.: 08-CV-42912

DATE: 2016/12/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD TREMBLAY and

JOHANNE MONGRAIN

Plaintiffs

– and –

OTTAWA POLICE SERVICES BOARD, JEFF AYLEN, MELBURN WHITE, SHAWN GRAHAM, CHRISTIAN GARDNER, MARTIN RUKAVINA, DANIEL KUNSKEN, KIRK GIDLEY, JEFF SIMPSON, KELLY RYAN, STEPHAN GILBERT, JEFF KILCOLLINS, GORDON WARD, WOODY ASPILAIRE and NELSON ROWAN

Defendants

Lawrence Greenspon and Marisa Victor, for the Plaintiffs

Jeremy Wright, for the Defendants

HEARD: February 8-10, March 30, June 6, 22, 23 2016

REASONS FOR JUDGMENT

Overview.. 4

The Players and Background. 5

Sergeant Aylen’s Investigation. 6

General Occurrence Reports and Investigative Action Reports. 7

Witness Statements. 10

Further Investigative Actions. 15

Decision to Arrest Mr. Tremblay and Seek Warrant 15

Execution of the Search Warrant 16

Arrest and Detention of Richard Tremblay. 17

Claims. 19

Analysis. 19

Negligent Investigation. 19

(a) General Principles. 19

(b) The Need for Expert Evidence. 21

(c) Context/Circumstances. 22

(d) Conclusion Regarding Negligent Investigation. 25

False Arrest, Unlawful Detention, and Unlawful Imprisonment 29

(a) Reasonable and Probable Grounds to Arrest 29

(i) Mischief. 30

(ii) Intimidation. 31

(b) False Arrest and Unlawful Detention. 33

Unreasonable Search and Seizure. 37

(a) Was the search authorized by law?. 37

(b) Was the search conducted in a reasonable manner?. 42

Negligence of Ottawa Police Services Board. 46

Damages. 48

(a) General Damages. 50

(i) False Arrest and Unlawful Detention. 51

(ii) Negligent Investigation. 51

(iii) Wrongful Seizure of Weapons. 54

(b) Charter Damages. 55

(c) Special Damages. 57

(i) Damages re House. 57

(ii) Legal Fees. 58

(d) Punitive Damages. 58

Disposition. 59

Aitken J.

Overview

[1] The Plaintiffs, Richard Tremblay and Johanne Mongrain, seek damages against the Ottawa Police Services Board, Sergeant Jeff Aylen, and other named police officers, arising from the arrest of Mr. Tremblay and the execution of a public safety warrant at the Plaintiffs’ home on October 17, 2006. The involvement of the Ottawa Police Services (“OPS”) in the Plaintiffs’ lives was the culmination of an unpleasant neighbourhood dispute that had poisoned relationships between property owners in the vicinity of the Plaintiffs’ home and had led to on-going civil litigation between the Plaintiffs and some of their neighbours. Relying only on the unsworn statements of some of the neighbours implicated in the civil litigation, the investigating officer, Sergeant Aylen, decided to arrest Mr. Tremblay for intimidation and mischief and to obtain a public safety warrant to ensure that there were no weapons in the home at the time of his arrest. Armed with this warrant, the OPS’s tactical unit broke down the front door of the Tremblay home while the Plaintiffs were at work and the four children living in the home were at school. OPS officers searched the premises, seizing firearms and ammunition that were properly stored and registered, and then arrested Mr. Tremblay upon his return from work – all in full view of his neighbours, and with his wife and children close by. Mr. Tremblay was taken to the Elgin Street police station where he was processed and kept in a cell until approximately 4:00 a.m. when he was released on an undertaking and promise to appear.

[2] At trial in the provincial court, Mr. Tremblay faced two counts of criminal harassment, two counts of intimidation, and one count of mischief over $5,000. Mr. Tremblay was acquitted of the criminal harassment and intimidation charges and was convicted of the mischief charge. The conviction was upheld upon appeal to the Superior Court but overturned upon appeal to the Court of Appeal. Thus, at the end of the day, Mr. Tremblay was not found guilty of any criminal behaviour. Through further court order, all items seized from his home were returned to him and his possession and acquisition licence for his firearms (“PAL”) was reinstated.

[3] The Plaintiffs base their claim for damages on the negligence of Sergeant Aylen during the course of the investigation, on the negligence of the OPS Board in training and supervising its officers, and on the breach of the Plaintiffs’ Charter[^1] rights: (1) 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; (2) to be free from arbitrary detention and imprisonment; and (3) to be free from unreasonable search and seizure. The Plaintiffs also rely on the torts of false arrest and false imprisonment.

The Players and Background

[4] Mr. Tremblay and Ms. Mongrain are married and have five children, four of whom were living with them at their Cumberland home (the “Tremblay/Mongrain property”) in October 2006. At the time, the four children ranged in age from 10 to 18. Mr. Tremblay, who has higher education in the fields of accounting and technology of architecture, has worked all of his life and, at the time of his arrest, was a senior project manager with his long-term employer, Minto. Mr. Tremblay is 52 years of age and has no criminal record. Ms. Mongrain is a 53-year old career public servant who, in 2006, was working as a planning analyst at Treasury Board. She has no criminal record.

[5] In 2006, Pierre Huppé and Deanna Perry owned the property (the “Huppé/Perry property”) immediately adjacent to the east of the Tremblay/Mongrain property. Mr. Huppé was a teacher at the high school attended by three of the Tremblay children. Officer Isabelle Ouellette, a member of the OPS, was the community police officer who worked at that high school.

[6] Marc and Diane Morris own the property (the “Morris property”) immediately adjacent to the northeast of the Tremblay/Mongrain property and to the north of the Huppé/Perry property. Marc Morris is the son of Ronald Morris and Georgette Lavigne who, in October 2006, lived across the street from the Tremblay/Mongrain property and the Huppé/Perry property.

[7] Patrick Walsh and Jennifer Côté owned the property (the “Walsh/Côté property”) immediately adjacent to the east of the Morris property and to the north of the Huppé/Perry property. Both are members of the OPS.

[8] Sergeant Jeff Aylen has been a police officer for 19 years, virtually all of his service being with the OPS. In October 2006, he was a detective conducting investigations in the east end of Ottawa. He first became involved with this matter on October 13, 2006, when he was assigned to follow-up on an investigative action report (“IAR”) submitted by Officer Neil White on October 12, 2006, following his interview that day with Deanne Perry and Pierre Huppé.

[9] Mr. Tremblay and Ms. Mongrain purchased land in Cumberland in 1998. They designed their dream home, and Mr. Tremblay acted as general contractor during its construction. The couple moved into the home in June 2003.

[10] During the course of construction, Mr. Tremblay installed a drainage pipe in the backyard that ran from the weeping tile around the home’s foundation to close to the northeast corner of their lot, where it drained into a swale that ran along the lot line between the Tremblay/Mongrain property and the property of the neighbours to the northeast.

[11] As soon as the drainage pipe was installed, Marc Morris challenged Mr. Tremblay as to whether the drainage pipe complied with municipal by-laws. Mr. Tremblay assured him that it did. Mr. Morris had by-law officers attend at the property. Initially, Mr. Tremblay was advised that the pipe complied with all relevant by-laws. Mr. Morris pursued the matter further with the municipality. The municipality then advised Mr. Tremblay that the drainage pipe was not compliant with Building Code requirements. The municipality eventually laid charges against Mr. Tremblay and Ms. Mongrain for non-compliance with municipal work orders. In May 2006, while Mr. Tremblay was pursuing this matter with the municipality, six neighbours commenced a civil action against Mr. Tremblay and Ms. Mongrain in regard to the drainage pipe. Those neighbours were Pierre Huppé, Deanna Perry, Marc Morris, Diane Morris, Patrick Walsh, and Jennifer Côté. Mr. Tremblay and Ms. Mongrain made a counterclaim against the plaintiffs in that action. At the time of the events in question in this case, the lawsuit between the neighbours was still ongoing.

Sergeant Aylen’s Investigation

[12] On October 13, 2006, after being assigned the file relating to complaints made against Mr. Tremblay and Ms. Mongrain by Mr. Huppé and Ms. Perry, Sergeant Aylen called Ms. Perry, explained that he was busy with other investigations that day, and asked her to forward to him email statements from herself and her husband and a log of incidents that she had previously prepared.

[13] On October 16, 2006, upon his return to work after a two day break, Sergeant Aylen began his investigation by checking the names of Mr. Tremblay, Ms. Mongrain, Mr. Huppé, and Ms. Perry on the police data base. By doing so, he uncovered a number of occurrence reports and IARs. I will summarize the information and allegations that he gleaned from those reports.

General Occurrence Reports and Investigative Action Reports

[14] On December 15, 2005, Pierre Huppé called Officer Ouellette advising that he had just retrieved a disturbing phone message on his work voice mail from November 3, 2005. The message was from a male, possibly intoxicated, who was belligerent, calling Mr. Huppé names like “stupid idiot” and “Mr. Taxi” and speaking about the floods Mr. Huppé was having in his basement. The message was not threatening in any sense. Mr. Huppé thought that the caller may have been Mr. Tremblay, but he could not say for sure. Mr. Huppé recounted that he had been having problems with Mr. Tremblay since Mr. Tremblay had moved into the neighbourhood and had drained his sump pump to the back of his property and not to a culvert at the front, as his other neighbours had done. Mr. Huppé had been having floods in his basement ever since and he and other neighbours had complained to the city. Since then, Mr. Huppé had been having taxis coming to his home, even though they had not been ordered. There had been no further disturbing calls since November 3, 2005, but Mr. Huppé wanted the call recorded in case things progressed.

[15] On June 18, 2006, at 8:24 p.m., Deanna Perry called the OPS to complain that she and Mr. Huppé were being harassed by Mr. Tremblay and Ms. Mongrain, and that these incidents were escalating as a court date was approaching in the civil case that Mr. Huppé, Ms. Perry, and other neighbours, had commenced against Mr. Tremblay. Ms. Perry complained that, on that date, Mr. Tremblay was taking pictures of her husband and children, he had also “given them the finger” on numerous occasions, and he had called Mr. Huppé at work leaving nasty messages.

[16] On June 22, 2006, at 7:41 p.m., Ms. Perry again called the OPS, stating that Mr. Tremblay was staring her and her husband “down” while they were cutting the grass, and he was following them as they moved about the property. The General Occurrence Report noted that there was an ongoing neighbour dispute between Mr. Tremblay and Mr. Huppé and Ms. Perry, and that all of this was stemming from an upcoming court case between the parties.

[17] On June 25, 2006, at 9:30 a.m., Officer Patrick Walsh attended at the Tenth Line police station to submit an information report regarding potential future problems with Mr. Tremblay and Ms. Mongrain. Officer Walsh reported that, on June 22, 2006, at 8:45 p.m., Mr. Tremblay stood at the very rear edge of his property and stared at Officer Walsh’s wife, Officer Jennifer Côté, as she was doing something in her backyard. Officer Walsh stated that he wanted the incident recorded “in anticipation of any possible escalation in incidents”, which he alleged had occurred with other neighbours who, along with him and his wife, were engaged in civil litigation with Mr. Tremblay and Ms. Mongrain. Officer Walsh also put on record his understanding that, for a period of time, Pierre Huppé and Deanna Perry, along with Marc and Diane Morris, had been subjected to “a gradually increasing level of harassment and abuse” from Mr. Tremblay and Ms. Mongrain, including: “verbal abuse, lewd gestures, being followed too closely in motor vehicles, photographing, phone messages, and being observed by them from the edge of the property lines to the point of causing discomfort.” This, of course, was all hearsay.

[18] According to OPS records, Officer White was assigned to investigate Ms. Perry’s complaints. He tried unsuccessfully to reach Ms. Perry by telephone on June 30 and July 1, 2006. Ms. Perry returned the calls on August 2^nd. On August 8^th, Officer White attended the Huppé/Perry home to speak to Ms. Perry. Mr. Huppé was at home but did not know when Ms. Perry would be back from work. Mr. White again attended the Huppé home on August 17^th, but no one was present.

[19] On August 22, 2006, Officer White spoke to Ms. Perry about “the neighbor dispute”. Ms. Perry reported that Mr. Tremblay was constantly staring at her husband and her children while they were out on their property and she thought that Mr. Tremblay had taken photos of her family in the pool in their backyard. The Huppé/Perry property was on the market, but she thought that the house would not sell until the litigation regarding the drainage dispute was finalized. She advised that she and her family had changed their way of life as a result of Mr. Tremblay. They did not walk past his house anymore and they kept their distance from him. On the previous weekend, Mr. Tremblay and Ms. Mongrain had tried to attend an open house at the Huppé/Perry property and Ms. Perry suspected that they were doing this to collect evidence for the court case. Ms. Perry wanted this information documented for future reference, but she did not want the OPS to speak to Mr. Tremblay about any of these incidents. She undertook to call back to add information to the file.

[20] On October 9, 2006, Mr. Tremblay called the OPS to report that, earlier the same day, when he and some of his children were playing basketball on the street, Mr. Huppé had accelerated down the street in his vehicle and had sped by Mr. Tremblay and his children, putting their safety in danger. Mr. Tremblay admitted that he and Mr. Huppé were not on good terms. Officer Catherine Zadzora asked Mr. Tremblay for Mr. Huppé’s licence plate number. Mr. Tremblay did not have it at the time, but undertook to call back with the plate number. The following day, Mr. Tremblay, while in his car, stopped at the foot of Mr. Huppé’s driveway and recorded Mr. Huppé’s licence plate number. He called the OPS to have the licence plate number recorded.

[21] On October 12, 2006, Officer Pierre Taillefer was assigned to investigate Mr. Tremblay’s complaint. He attended the Tremblay/Mongrain property the same day, but no one was at home. He returned on October 16, 2006, at 5:53p.m., at which time he spoke with two of Mr. Tremblay’s children. They had Mr. Tremblay on the telephone. Mr. Tremblay explained what had happened on October 9^th, advised that there was an ongoing feud between himself and Mr. Huppé, and asked the police to speak with Mr. Huppé. Officer Taillefer advised Mr. Tremblay that there is a municipal by-law prohibiting anyone from playing sports on municipal streets, but he agreed to go next door and speak to the occupants. Officer Taillefer noted that: “Both were told that no further action would be taken at this time but Mr. Tremblay was informed of the bylaw”.

[22] On October 12, 2006, Officer White attended at the Huppé/Perry property and discussed their concerns about Mr. Tremblay, namely, that Mr. Tremblay stared at them, took pictures of them, spray painted his van, entered their open house, and called Mr. Huppé at work. This latter allegation related to the complaint Mr. Huppé had made in December 2005, when he advised the police that he could not be certain that it had been Mr. Tremblay who had called his office.

Witness Statements

[23] After Sergeant Aylen received the file on October 13, 2006, he did not interview Ms. Perry or Mr. Huppé. Instead, he relied on their unsworn written statements and on a log of incidents which had been emailed to him by Ms. Perry at some point between October 13^th and the morning of October 16^th.

[24] In her email statement, Ms. Perry outlined the history of: (1) Mr. Tremblay installing the drainage pipe in his backyard; (2) the pooling of water on the neighbours’ yards; (3) the complaint to the municipality by the Morrises, Mr. Huppé, Ms. Perry, Officer Walsh, and Officer Côté; (4) the inaction on the part of the municipality; (5) the eventual provincial charges being levied against Mr. Tremblay and Ms. Mongrain; and (6) the ensuing civil litigation commenced by all of these neighbours against Mr. Tremblay and Ms. Mongrain in the fall of 2005. Having set the context, Ms. Perry went on to make the following general allegations against Mr. Tremblay and Ms. Mongrain:

• They stared at Mr. Huppé and Ms. Perry when they were carrying on normal activities in their front and back yards.

• They took photographs of Mr. Huppé, Ms. Perry, and their children in their yard.

• The Tremblay/Mongrain dog was sent outside to bark at the Huppé/Perry family.

• Ms. Mongrain gave the Huppé/Perry children “the finger” as the Huppé/Perry family was driving by the Tremblay/Mongrain property in their car.

• There were loud and violent arguments coming from the Tremblay/Mongrain home.

[25] In his email statement, in addition to making the same allegations against Mr. Tremblay and Ms. Mongrain that were levied in Ms. Perry’s email statement, Mr. Huppé itemized several incidents that had troubled him. Similarly, in her incident log, that accompanied her email statement, Ms. Perry itemized all of the incidents which she found troubling. The chronology of allegations contained in these documents was the following:

• In the fall of 2005, Mr. Tremblay had left a message on Mr. Huppé’s work email in which he had called Mr. Huppé “Monsieur Taxi”, and Mr. Huppé suspected that Mr. Tremblay had sent unsolicited taxis to the Huppé/Perry property on two occasions during the fall of 2005. [On December 15, 2005, Mr. Huppé had filed a police report of this incident with Officer Ouellette. In it, he stated that he did not know if the phone message had been from Mr. Tremblay.]

• On May 28, 2006, when Ms. Perry and Officer Côté were in the backyard watching their children playing on swings and a trampoline, Ms. Mongrain came to the gap in the cedar hedge and stared at them.

• On June 13, 2006, Ms. Mongrain stared at the Huppé/Perry family as they left for work and school in their car and gave “the finger” to their children.

• On June 18, 2006, Mr. Tremblay took photos of Mr. Huppé and the children as they were going into the pool. Ms. Perry reported the incident to the police.

• On June 18, 2006, at 9:30 p.m., Mr. Huppé and/or Ms. Perry heard something that sounded like three gun shots from the Tremblay/Mongrain property.

• On June 20, 2006, Mr. Huppé found a dead bird in his front yard.

• On June 23, 2006, Ms. Perry was cutting the grass in the front yard. Upon returning home from work, Ms. Mongrain came to the property line to observe her. Mr. Huppé drove his tractor along the property line to the front of the house. As he did this, Mr. Tremblay walked beside him, staring at him. When Mr. Huppé returned to the backyard to continue cutting the lawn, Mr. Tremblay stared at him through the gap in the cedar hedge. Ms. Perry reported these events to the police.

• On July 18, 2006, Mr. Huppé heard a gunshot and observed a bird leaving the cedar hedge that separated his property from the Tremblay/Mongrain property. Shortly thereafter, Ms. Perry heard something hit the side of their house nearest the Tremblay/Mongrain property. Mr. Huppé did not see any damage done to the vinyl siding.

• On July 21, 2006, when the Huppé/Perry family went for a walk, Mr. Tremblay and Ms. Mongrain stood on the edge of their property, stared at them, and let their dog bark at them.

• On July 21, 2006, Mr. Tremblay parked an old van close to the Huppé/Perry property.

• On July 26, 2006, Mr. Tremblay stopped his car in front of Mr. Huppé and Ms. Perry, whose lawn tractor had just broken down, made a sarcastic comment about his gutters, and then laughed and cursed as he left. Ms. Mongrain was in the car at the time.

• On August 9, 2006, while Mr. Huppé and his father were removing dead cedar trees, Mr. Tremblay stared at them for 15 minutes from the gap in the cedar hedge.

• On August 9, 2006, the real estate agent showing the Huppé/Perry property prevented Mr. Tremblay and Ms. Mongrain from attending an open house.

• On August 18, 2006, Mr. Tremblay stared through the gap in the cedar hedge at one of the Huppé children.

• On August 20, 2006, Mr. Tremblay and Ms. Mongrain tried to attend an open house at the Huppé/Perry home and were turned away by the real estate agent.

• On August 26, 2006, the Huppé/Perry family returned after a weekend away to find a flat tire on their utility trailer and a dead bird in the trailer.

• On September 27, 2006, Mr. Tremblay moved an old van to the property line and placed old tires on top of it after he observed Mr. Huppé’s real estate agent putting a sign on the Huppé/Perry property advising of an open house the following weekend.

• On October 6, 2006, Mr. Tremblay stared at Ms. Perry as she was cutting the grass and then went to the backyard to stare at Mr. Huppé.

• On October 9, 2006, Mr. Tremblay painted in orange fluorescent letters on the side of his van facing the Huppé/Perry property: “I am not responsible for your basement floods.”

• On October 10, 2006, a boy in Mr. Huppé’s class who is a friend of one of the Tremblay children asked Mr. Huppé, in the presence of another boy, if he liked the message on the Tremblay van. Mr. Huppé and the school principal subsequently met with the boys and advised them not to raise the subject again at school.

• On October 13, 2006, Mr. Huppé, when driving his children home from the park, had had to detour around Mr. Tremblay and his children who were playing basketball on the street. According to Mr. Huppé, despite his making efforts to avoid the Tremblays, Mr. Tremblay contacted the police and accused Mr. Huppé of trying to hit him and his children with his car. In fact, Mr. Tremblay had contacted the police about such an incident on October 9, 2006.

• On October 13, 2006, Mr. Tremblay removed the van from the property line but, in the process, stared in the front window of the Huppé/Perry home, where Ms. Perry was standing.

• On October 14, 2006, as Mr. Huppé was preparing his boat for a fishing trip, Mr. Tremblay and Ms. Mongrain stopped their vehicle at the foot of the Huppé driveway and observed him for approximately five minutes.

• On October 14, 2006, when Ms. Mongrain drove into her driveway, she and her daughter stared at Ms. Perry and another neighbour.

[26] Both Ms. Perry and Mr. Huppé described the impact of the Tremblay/Mongrain behaviour on them and their children. To summarize:

• They did not feel safe in their home and their yard.

• They alarmed their home when they went to bed.

• They avoided walking in front of the Tremblay/Mongrain home.

• They changed how they drove in the community so as not to pass the Tremblay/Mongrain home.

• They would not leave their home for an extended period without hiring someone to watch the property for fear that Mr. Tremblay or Ms. Mongrain would damage it.

• Ms. Perry was afraid to stay alone in the home when her husband was away, and she suffered from increased stress and anxiety.

• Ms. Perry would not cut her grass without someone else being present.

• Ms. Perry would not go out for a walk in the neighbourhood without taking her cell phone.

• Ms. Perry did not send her children out to play in the yard without constant supervision and would not let her son ride his bike in the neighbourhood unaccompanied.

• The Tremblay/Mongrain dog was a pit bull, or one similar, that frightened everyone in the neighbourhood (including Mr. Huppé and his children).

• The Huppé/Perry children were anxious and having trouble sleeping.

• The stress was taking its toll on the Huppé/Perry marriage and family life.

• Mr. Huppé and Ms. Perry had spent considerable sums to deal with the water damage to their property caused by Mr. Tremblay’s drainage pipe.

• Mr. Huppé and Ms. Perry were unable to sell their home while the dispute remained unresolved.

• Mr. Huppé was under great stress at home and at school, and he took steps not to be in a situation where he would have any contact with Mr. Tremblay or the Tremblay children. To this end, Mr. Huppé had advised his school principal and Officer Ouellette of his allegations against Mr. Tremblay. Also, he changed his work schedule to avoid teaching one of the Tremblay daughters.

[27] At the end of his email statement, Mr. Huppé stated:

Nous savons qu’il [Mr. Tremblay] intimide beaucoup d’autres personnes dans notre quartier. Nous savons aussi qu’il a été agressif physiquement avec un voisin. Ceci m’indique que Tremblay n’a pas peur d’utiliser la violence quand les choses ne tournent pas bien et ceci me fait peur pour moi et ma famille. Je veux prévenir tout dommage physique à ma propriété et toute violence envers ma famille et cet individu me fais peur. [Again, all hearsay.]

[28] On the afternoon of October 16, 2006, at the suggestion of Ms. Perry, Sergeant Aylen interviewed Ronald Morris and Georgette Lavigne, who lived across the street from the Tremblay/Mongrain and Huppé/Perry properties, in order to get corroboration of the Perry/Huppé allegations. Mr. Morris and Ms. Lavigne were interviewed together and provided the same information, which Ms. Lavigne subsequently reduced to two identical written statements. The couple alleged that during the previous few months, they had witnessed the Tremblays intimidating and harassing the Huppé family by staring at them through the gap in the cedar hedge, by taking photos of them in the backyard through the same gap, by parking the old van tight to the property line between the two properties, by putting old tires on the top of the van, and by spray painting a message on the van that would prevent the Huppés from being able to sell their property. During the interview with Sergeant Aylen, Mr. Morris advised that he had observed Mr. Huppé arriving home on October 12, 2006, and that Mr. Tremblay’s allegation that Mr. Huppé had almost run him over with his vehicle was pure fabrication. [Mr. Tremblay had never alleged that anything of this nature had happened on October 12^th. Mr. Tremblay’s allegation had related to Mr. Huppé’s behaviour on October 9^th, not October 12^th.]

[29] I emphasize that evidence as to what was stated in General Occurrence Reports, IARs, the email statements and incident log sent to the OPS by Ms. Perry and Mr. Huppé, and the statements made by Ron Morris and Georgette Lavigne to Sergeant Aylen was admitted for the limited purpose of showing what information was available to Sergeant Aylen prior to his deciding to arrest Mr. Tremblay for intimidation and mischief, his preparing the Information to Obtain (“ITO”) for the public safety search warrant, his executing that warrant, and his having Mr. Tremblay arrested.

Further Investigative Actions

[30] On the morning of October 16, 2006, prior to going to the Morris/Lavigne home, Sergeant Aylen checked the Canadian Firearms Registry and learned that Richard Tremblay had a valid PAL for three firearms: a Savage model 340A bolt action 3030 calibre rifle, a Winchester model 1200 pump action shotgun, and a Mossberg model Mark II repeater bolt action rifle – all non-restricted firearms.

Decision to Arrest Mr. Tremblay and Seek Warrant

[31] By the time Sergeant Aylen had spoken with Ronald Morris and Georgette Lavigne, he had concluded that he had reasonable and probable grounds to arrest Richard Tremblay for intimidation and mischief and to seek a warrant to search his home and seize any firearms, other weapons, and ammunition. Sergeant Aylen completed his ITO to obtain the warrant on the afternoon of October 16^th.

[32] At 4:00 p.m. that afternoon, after he had decided to arrest Mr. Tremblay and to seek the public safety warrant, Sergeant Aylen called Ms. Perry and obtained the names and dates of birth of her children, a physical description of Richard Tremblay, a description of his vehicle, and information regarding the number and ages of any children living with Mr. Tremblay. It is clear that, at this time, Sergeant Aylen anticipated releasing Mr. Tremblay subject to an undertaking; however, he also planned on taking Mr. Tremblay to the police station and releasing him there, after he had spent some time in cell block.

[33] On the morning of October 17, 2006, Sergeant Aylen attended before Justice of the Peace Richard Sculthorpe, and obtained a warrant under s. 117.04 of the Criminal Code, R.S.C. 1985, c. C-46 to search Richard Tremblay’s home, garage, and outbuildings on that date between the hours of 10:00 a.m. and 6:30 p.m. for weapons, prohibited devices, ammunition, prohibited ammunition or explosive substances and any authorization, license or registration certificate relating to any such thing. Prior to attending before the Justice of the Peace, Sergeant Aylen had alerted the Tactical Unit of the OPS (the “SWAT” team) that their services would be required to execute the search warrant that Sergeant Aylen anticipated the Justice of the Peace would authorize. Once the warrant was granted, Sergeant Aylen arranged for community police officers to surveil the Tremblay/Mongrain property until the SWAT team arrived on site.

Execution of the Search Warrant

[34] According to Sergeant Jeffrey Kilcollins, who was in charge of the SWAT team that entered the Tremblay/Mongrain property on October 17, 2006, serving a firearms warrant on an individual suspected of having firearms is a high risk endeavour. He assembled his team which, including himself, numbered eight tactical officers.[^2] The team was briefed at 12:51 p.m. and assigned tasks. The team members got suited up with helmets, heavy body armour, load-bearing vests, gas masks, side arms, and long guns (a submachine gun or a short barrelled rifle – both of which appeared like assault weapons). At least one team member was wearing a balaclava.

[35] The team arrived on scene at 2:00 p.m. Sergeant Kilcollins phoned the residence several times, getting only an answering machine. The team then did door knocks at the front and back doors, with no one responding. They could hear a dog inside. Fifteen minutes after the first phone call, the team breached the front door with their weapons drawn and announced their arrival. In the process of the breach, the two front doors of the Tremblay/Mongrain property, the door frame, and the door lock were all broken. The team then did a methodical search of the premises for any persons, checking everywhere that someone could hide. This involved moving furniture. By 3:00 p.m., the premises had been secured and turned over to Sergeant Aylen to conduct a search for “evidence”. Sergeant Aylen seized the three firearms of which he had been aware, some ammunition, some other hunting weapons, and two expired PALs. The firearms were properly registered and they, along with the ammunition, were properly stored.

[36] As the five or six officers, including Sergeant Aylen and Officer Ouellette, were starting their search of the premises, three of the Tremblay children arrived home on the school bus. They were not allowed in the house. Instead, they were given the choice of sitting in a police cruiser or waiting outside in the rain. They waited in the police cruiser. They remained there until approximately 4:38 p.m., when they were allowed into the home.

[37] Officer Ouellette called Ms. Mongrain at work, advised her that Mr. Tremblay was going to be arrested and the police were in the process of searching their home, and told her to come home right away to be with her children. Ms. Mongrain immediately contacted Mr. Tremblay. He briefly spoke to his lawyer in the civil case before he and Ms. Mongrain drove home, stopping en route to pick up the fourth child. At 3:20 p.m., Mr. Tremblay spoke with Sergeant Aylen, who advised him that he would be arrested for mischief and intimidation.

Arrest and Detention of Richard Tremblay

[38] Mr. Tremblay, Ms. Mongrain, and their 18-year old daughter, arrived home shortly after 4:30 p.m. Sergeant Aylen spoke briefly to Mr. Tremblay, telling him that he was being arrested for intimidation and mischief and Sergeant Aylen would explain things to him more fully at the police station. Sergeant Aylen seized Mr. Tremblay’s PAL from his wallet.

[39] Mr. Tremblay was formally arrested by uniformed Officers Woody Aspilaire and Kelly Ryan. Ms. Mongrain and the four Tremblay children were in the vicinity when Mr. Tremblay was arrested. Officer Aspilaire handcuffed and searched Mr. Tremblay and placed him in the back of a police cruiser. Officer Ryan then cautioned Mr. Tremblay and advised him of his right to counsel. Mr. Tremblay was asked if he wished to contact counsel and then if he wished to make a statement, but declined both opportunities. Officers Aspilaire and Ryan left the scene with Mr. Tremblay at 4:51 p.m., arriving at the cell block at Elgin Street at 5:20 p.m.

[40] Once at the cell block, Mr. Tremblay was again advised by the cell block sergeant of the reasons for his arrest. Officer Aspilaire did a pat down search of Mr. Tremblay. Mr. Tremblay was turned over to a special constable who also conducted a search. Mr. Tremblay’s possessions were taken from him. He had to wear the orange garb of an inmate. Officer Aspilaire arranged for Mr. Tremblay to speak with his counsel, Lawrence Greenspon. By 5:51 p.m., Mr. Tremblay was housed in a cell. He was fed at 6:15 p.m. At 7:30 p.m., Sergeant Aylen and Officer Ouellette spoke with Mr. Tremblay in the cell block, asking if he wished to make a statement. On the advice of his lawyer, Mr. Tremblay declined to do so. Sergeant Aylen prepared an undertaking and explained the conditions therein to Mr. Tremblay. Sergeant Aylen provided the undertaking to the sergeant in charge of the cell block and then left the premises at 8:30 p.m.

[41] At 11:07 p.m., Mr. Tremblay was taken to the identification section for photographs and fingerprinting. I note that this was not a case where taking Mr. Tremblay’s photograph or fingerprints was of any evidentiary value in the case or was required for any security or other reasons. Both could have been done at a later date. For some inexplicable reason, Mr. Tremblay was not released until approximately 4:00 a.m. on October 18, 2006. He was released on the basis of a simple undertaking and promise to appear.

[42] The only conditions in the undertaking prepared by Sergeant Aylen and signed by Mr. Tremblay prior to his release were to keep the peace and be of good behaviour; to abstain from communicating directly or indirectly with Mr. Huppé, Ms. Perry, or their children; to abstain from attending at the Huppé/Perry property; to abstain from possessing a firearm; and to surrender to Sergeant Aylen any firearm in Mr. Tremblay’s possession along with any authorization document relating thereto. Sergeant Aylen admitted that he felt the terms of this undertaking were adequate to prevent any continuation or repetition of the offences with which Mr. Tremblay was charged. When asked why he had not simply given Mr. Tremblay an appearance notice under s. 496(b) of the Code, and released him on the basis of the undertaking he eventually produced, Sergeant Aylen’s explanation, which was disingenuous at best, was that he had determined in advance that he would take Mr. Tremblay to cell block to give him the opportunity to consult counsel and then to interview Mr. Tremblay in the hope of collecting further evidence. I note that, at no time prior to charging Mr. Tremblay with the three offences, had Sergeant Aylen ever interviewed Mr. Tremblay to obtain his side of the story. Also, when Mr. Tremblay was arrested, he advised Officers Aspilaire and Ryan that he did not want to speak to counsel at that time, and he did not want to make a statement.

Claims

[43] The Plaintiffs claim damages under the following headings:

• Negligent investigation,

• False arrest and imprisonment,

• Unreasonable search and seizure,

• Negligence in training and supervision, and

• Breach of Charter rights.

Analysis

Negligent Investigation

(a) General Principles

[44] In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, McLachlin C.J. stated, at para. 3:

I conclude that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada … The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.

[45] Sergeant Aylen owed a duty of care to Richard Tremblay when he was investigating whether Mr. Tremblay had committed any offences.

[46] The standard of care was what a reasonable police officer would have done at the time in question under similar circumstances, giving due recognition to the discretion inherent in police investigation. The exercise of that discretion, however, must remain within the bounds of reasonableness. A number of options may present themselves to the investigating officer – he or she is not bound to choose what, in hindsight, would have been the best, as long as the option chosen was reasonable.

The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made – circumstances that may include urgency and deficiencies of information. … [P]olice officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. (Hill, at para. 73)

[47] In the recent case of 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, released after this trial had concluded, the Ontario Court of Appeal reviewed in detail the appropriate standard of care for the tort of negligent investigation and, although lengthy quotes are discouraged in judgments, I consider it appropriate to reproduce the Court’s guidance in this regard. After referring to the above quote from Hill, the Court went on to state, at paras. 48-52:

The conduct of a reasonable police officer may vary depending on the stage of the investigation and the legal considerations. In laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty: Hill, at para. 55.

The Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at pp. 250-51 S.C.R., defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. … In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make an arrest: R. v. Storrey, at p. 251 S.C.R.

The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251 S.C.R.; Wong v. Toronto Police Services Board, 2009 CanLII 66385, [2009] O.J. No. 5067, 2009 CarswellOnt 7412 (S.C.J.), at para. 54; Gioris v. Toronto (City) Police Services Board, 2012 ONSC 6396, [2012] O.J. No. 5634, 2012 CarswellOnt 15071 (S.C.J.), at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:

The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused.

The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.

Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244 (S.C.J.), [2012] O.J. No. 2529, at para. 16; Wong, at para. 59.

[48] These, then, are the principles that I must apply in determining whether Sergeant Aylen breached the standard of care owed to Mr. Tremblay.

(b) The Need for Expert Evidence

[49] The general rule is that expert evidence is required to establish the standard of care expected of a police officer at a given point in time (495793 Ontario Ltd., at para. 53, and the cases cited therein). However, this rule is subject to two exceptions: (1) where the trier of fact can rely on his or her own knowledge and experience to determine the appropriate standard of care, and whether it has been met, because of the non-technical nature of the issues; and (2) “where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care” (495793 Ontario Ltd., at paras. 56-57; and see also Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 O.A.C. 173, at paras 34-35; and Krawchuk v. Scherbak 2011 ONCA 352, 106 O.R. (3d) 598, at paras. 133-135, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 319).

[50] Neither the Plaintiffs nor the Defendants in this case presented expert evidence in regard to the standard of care expected of Sergeant Aylen, and the OPS, in 2006, when the events in question occurred. Consequently, I must decide whether the facts in this case, and the issues they raise, bring this case under either of the exceptions to the general rule. For the reasons that follow, I conclude that this case falls under the first exception. There is nothing technical or complicated about the circumstances that led to charges being laid against Mr. Tremblay or about the investigation that such circumstances called for. In that regard, this case is similar to others where judges have proceeded without the benefit of expert opinion evidence (Russell v. York (Regional Municipality Police Services Board, 2011 ONSC 4619, 242 C.R.R. (2d) 281; Lawrence v. Peel (Regional Municipality) Police Force, 2009 CanLII 19934, 176 A.C.W.S. (3d) 887 (S.C.J.); and Wong). In that I have found that the case falls under the first exception, I do not need to consider whether it also falls under the second.

(c) Context/Circumstances

[51] In assessing whether Sergeant Aylen breached the required standard of care, it is important to consider the context in which he was exercising discretion when investigating whether Mr. Tremblay had committed any offences.

[52] What Sergeant Aylen was investigating, and what he knew he was investigating at the time, was a long-simmering dispute between neighbours that arose when the Plaintiffs had installed a drainage pipe on their property. He also knew, at the time, that some of the Plaintiffs’ neighbours had started a civil suit against the Plaintiffs relating to drainage issues. Those neighbours were: Pierre Huppé and Deanna Perry (the chief complainants against Mr. Tremblay); Patrick Walsh and Jennifer Côté (two police officers who had spoken to police colleagues about Mr. Tremblay but who had not sought any action to be taken against Mr. Tremblay); and Marc Morris and Diane Morris (who had the same last name as Ronald Morris, to whom Ms. Perry referred Sergeant Aylen in order to get corroboration of her complaints against Mr. Tremblay).[^3]

[53] Sergeant Aylen’s investigation was at its infancy when, in the afternoon of October 16, 2006, he decided to arrest Mr. Tremblay and to seek a public safety warrant authorizing a search of the Tremblay/Mongrain property and the seizure of any firearms found therein. Sergeant Aylen had been assigned the file on October 13^th. He was away from the office on October 14^th -15^th, returning on the morning of October 16^th. The sum total of Sergeant Aylen’s investigation entailed his reviewing earlier occurrence reports and IARs, reviewing an email and log forwarded to him by Ms. Perry, conducting criminal records and gun registry checks, interviewing Mr. Morris and Ms. Lavigne to corroborate the statements of Ms. Perry and Mr. Huppé, and reviewing their joint statement. He did not interview Mr. Huppé or Ms. Perry who were the complainants in the matter and who would have been the key Crown witnesses at any trial. He also did not interview Mr. Tremblay or Ms. Mongrain.

[54] The context in which Sergeant Aylen decided to arrest Mr. Tremblay included not only the information that he had at the time regarding allegations that Ms. Perry and Mr. Huppé had levied against Mr. Tremblay, and allegations that Mr. Tremblay had levied against Mr. Huppé, but also the information that he did not have but which he could have had upon simple inquiry. As Doherty J.A. stated in R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] 117 C.C.C. (3d) 193, at para. 21:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.

[55] Sergeant Aylen did not, personally, interview Ms. Perry or Mr. Huppé to get a clear understanding of the seriousness of the allegations they were making and to gauge the appropriateness of various options available to the police in response. He had intended to interview Ms. Perry on October 13, 2016, but had run out of time by the end of the day. Instead, he asked her and her husband to send him a written statement via email. Upon receipt of that email, Sergeant Aylen made no inquiries as to why Ms. Perry and Mr. Huppé had delayed reporting some of the most serious allegations. As well, he did not follow up in regard to the other red flags raised in their written statements. This would have been a simple step to take. Officer White had made efforts to interview Ms. Perry and Mr. Huppé to get a fuller picture of their concerns. Officer Taillefer had spoken to Mr. Huppé and Mr. Tremblay on October 16, 2006, had warned both men to respect the law, had concluded that no further action was required, and had told both men that no further police action would be taken in regard to their dispute. Sergeant Aylen did not confer with Officer Taillefer, or follow his lead, before deciding that the arrest of Mr. Tremblay and the execution of a public safety warranty was the appropriate police action to take.

[56] Sergeant Aylen did not take a critical look at the emails submitted by Ms. Perry alongside the written statements from Mr. Morris and Ms. Lavigne. If he had done so, he would have realized that the Morris/Lavigne statements appeared to copy the emails of Ms. Perry – suggesting there may have been collusion between the parties. Also, Sergeant Aylen did not inquire as to the relationship between Mr. Ronald Morris, who has provided the statement, and Mr. Marc Morris, one of the neighbours suing Mr. Tremblay, to explore the possibility of bias on the part of Mr. Ronald Morris. Had he made a simple inquiry, he would have learned that Ronald Morris was the father of Marc Morris. When interviewing Ronald Morris, Sergeant Aylen knew that one of the litigants in the civil action against Mr. Tremblay was Marc Morris.

[57] This was not a situation where matters were escalating and immediate intervention was required. Most of the allegations of Ms. Perry and Mr. Huppé related to events in the past that had not been repeated. The van with its painted message had already been removed from the property line by Mr. Tremblay prior to Sergeant Aylen becoming involved on the file.

[58] Thus, there were no circumstances of urgency requiring immediate intervention on the part of Sergeant Aylen. In fact, the information available to Sergeant Aylen was to the effect that Mr. Tremblay’s neighbours wanted to “put on the record” their complaints about Mr. Tremblay and Ms. Mongrain for future reference, should anything escalate between the Plaintiffs and their neighbours. The neighbours were not asking the police to take immediate action. To support the conclusion that there was no urgency, I note that:

• Richard Tremblay had been in possession of firearms and valid licences for their possession for many years, without incident.

• Richard Tremblay had no criminal record.

• Johanne Mongrain had no criminal record.

• Following an initial complaint to the OPS by Ms. Perry on June 22, 2006, Ms. Perry initiated no communication with the police until August 2, 2006 and, despite knowing that a police officer was trying to reach her, Ms. Perry did not make herself available until August 22, 2006.

• Ms. Perry advised Officer White on October 12, 2006 that she did not want the police to speak to Mr. Tremblay but, instead, simply wanted the police to document her complaints.

• While investigating an incident reported to the police by Mr. Tremblay on October 9, 2006 regarding Mr. Huppé’s use of his motor vehicle, Officer Taillefer had spoken with both Mr. Tremblay and Mr. Huppé on the afternoon of October 16, 2006, without incident and without any adverse response on the part of Mr. Tremblay.

• Mr. Tremblay had spray painted the message on his old van on October 9, 2006, after he alleged Mr. Huppé had put himself and his children in danger by his driving. Mr. Tremblay had voluntarily removed his van from the lot line and had removed the paint from the van on October 13, 2006 – well prior to his meeting with Officer Taillefer. This had happened through the intervention of the parties’ lawyers in their civil dispute.

• One of the allegations against Mr. Tremblay was that he had taken photos of Mr. Huppé and his children, but that had occurred four months prior to Mr. Tremblay’s arrest and had not been repeated.

• The two incidents leading to Mr. Huppé and Ms. Perry’s allegation that they had heard what they thought might be gunshots from the Tremblay/Mongrain property had occurred on June 18 and July 18 – four and three months respectively prior to Mr. Huppé reporting these incidents to the OPS. There had been no reports of further potential gunshots – in other words, no alleged escalation of events.

• On October 16, 2006, Ms. Perry advised the police that she did not know whether Mr. Tremblay had any guns, thereby suggesting that Mr. Huppé and Ms. Perry were unsure whether the sounds they heard on June 18 and July 18 were in fact gunshots coming from the Tremblay/Mongrain property.

• Ms. Perry and Mr. Huppé complained against loud and aggressive arguments in the Tremblay/Mongrain household for the first time in their statements of October 16, 2006. They provided no particulars about those arguments and whether they related in any respect to Mr. Tremblay’s dispute with the neighbours.

• On October 13, 2006, Sergeant Aylen did not consider the neighbours’ dispute to be at a level of seriousness calling for urgent action. He did not assign the case to anyone else while he was away on two days leave. Nothing happened between October 13^th and October 16^th to raise any alarm bells.

(d) Conclusion Regarding Negligent Investigation

[59] After considering all of the circumstances, I conclude that Sergeant Aylen’s investigation in regard to the offence of intimidation was negligent. He had the opportunity of better understanding the circumstances of the dispute between Mr. Huppé and Ms. Perry and Mr. Tremblay and Ms. Mongrain, and of determining the level of risk posed by Mr. Tremblay, but he chose not to take advantage of those opportunities. He did not speak directly to Ms. Perry and Mr. Huppé. He did not speak to Mr. Tremblay or Ms. Mongrain. He did not consult Officer White or Officer Taillefer as to the steps that they had taken during the investigation. He did not look at the written documentation he had received from Ms. Perry, Mr. Morris, and Mr. Lavigne with a careful and critical eye. He did not undertake any inquiries as to the relationship of the various parties with a view to identifying underlying motivations and biases.

[60] Although his investigation was at an early stage, he jumped to the most dramatic response to the circumstances, ignoring all other reasonable options available to him to deal with allegations of misconduct on the part of Mr. Tremblay. There could be no more dramatic response and no response with more potential trauma to the Tremblay/Mongrain family than the execution of a public safety warrant with the assistance of the SWAT team, the taking apart of the Tremblay/Mongrain home during a search for weapons conducted in the presence of four children, and the arrest of Mr. Tremblay while his neighbours were watching and his wife and children were nearby.

[61] In Hill, at para. 70, McLachlin C.J. stated:

Third, the common law factors relevant to determining the standard of care confirm the reasonable officer standard. These factors include: the likelihood of known or foreseeable harm, the gravity of harm, the burden or cost which would be incurred to prevent the injury, external indicators of reasonable conduct (including professional standards) and statutory standards.

[62] It was easily foreseeable that forced entry into the Tremblay/Mongrain home by the SWAT team of the OPS, a full search of the home with all of the disruption that entails, and the arrest of Mr. Tremblay under the peering eyes of his neighbours would be an exceedingly traumatic and harmful experience for all members of the Tremblay/Mongrain family, and one from which they would not quickly recover. This harm could so easily have been avoided if Sergeant Aylen had opted for any one of a number of options available to him, such as:

• meeting with Mr. Huppé and Ms. Perry to ascertain what steps might best meet their needs, as they had never asked for criminal charges to be laid against Mr. Tremblay;

• meeting with Mr. Tremblay and Ms. Mongrain to get their side of the story and to discuss how the strained circumstances could be eased;

• speaking with both Mr. Tremblay and Ms. Mongrain, and Mr. Huppé and Ms. Perry, to discuss ways to de-escalate the tension between the families and to give firm instructions in this regard;

• asking Mr. Tremblay to relinquish his firearms during the course of a police investigation or until the civil case had been completed;

• using an appearance notice under s. 496 of the Code; and

• having Mr. Tremblay accompany the police to the police station either for an interview or to be charged and, if charges were laid, immediately releasing Mr. Tremblay on his own undertaking (as was eventually done in any event).

[63] Officer White had considered the first option a reasonable place to start when he had carriage of the file. Officer Taillefer had considered the first, second, and third options reasonable when he had been tasked with investigating Mr. Tremblay’s allegations about Mr. Huppé’s dangerous driving.

[64] Section 1 of the Police Services Act, R.S.O. 1990, c. P. 15 (in effect at the time of Mr. Tremblay’s arrest), states:

Declaration of Principles

1. Police services shall be provided throughout Ontario in accordance with the following principles:

2. The need to ensure the safety and security of all persons and property in Ontario.

3. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.

4. The need for co-operation between the providers of police services and the communities they serve.

5. The importance of respect for victims of crime and understanding of their needs.

6. The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society.

7. The need to ensure that police forces are representative of the communities they serve. R.S.O. 1990, c. P.15, s. 1

[65] This is somewhat instructive of the standard of care owed by a police officer to members of the community. I consider of particular significance that, in addition to addressing the safety and security concerns of Mr. Huppé, Ms. Perry, and the other neighbours suing Mr. Tremblay and Ms. Mongrain, Sergeant Aylen was also responsible to ensure the safety and security of Mr. Tremblay, Ms. Mongrain, their children, and the family’s property. In the decision-making process leading to Mr. Tremblay’s arrest and the execution of the public safety warrant, this responsibility was overlooked.

[66] As McLachlin C.J. cautioned in Hill, at para. 71:

Police conduct has the capacity to seriously affect individuals by subjecting them to the full coercive power of the state and impacting on their repute and standing in the community. It follows that police officers should perform their duties reasonably. It has thus been recognized that police work demands that society (including the courts) impost and enforce high standard on police conduct (Cory Report, at p. 10).

[67] Although hindsight can play no role in determining whether Sergeant Aylen’s investigation was negligent, the findings of Wake J. at trial in regard to the two counts of watching and besetting under s. 423(1)(f) of the Code and the two counts of criminal harassment under s. 264(3) of the Code offer confirmation that the concerns referred to above regarding missing steps in the investigation process are well-placed. Had Mr. Tremblay been given the opportunity of explaining why he had taken photographs of the Huppé/Perry family (to gather proof of their enjoyment of their property for purposes of the civil action and at the request of his civil lawyer), or why he had stopped in front of their driveway (to obtain the licence plate from Mr. Huppé’s vehicle at the request of an OPS officer), this likely would have resulted in Sergeant Aylen concluding that he did not have reasonable and probable grounds to arrest Mr. Tremblay for these offences.

[68] If Sergeant Aylen decided not to pursue the intimidation charges, it is highly unlikely that he would have sought a public safety warrant prior to charging Mr. Tremblay with mischief or that he would have arrested Mr. Tremblay in the dramatic manner he did – especially when he knew that the facts underlying the public mischief charge were no longer in existence at the time of the arrest.

[69] The police must be given the leeway to investigate and apprehend suspects in accordance with their reasonable exercise of discretion. They should not be penalized for doing so in an action based on 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” (Hill, at para. 92). I find that Sergeant Aylen, and therefore the OPS as his employer, was negligent in the investigation of allegations against Mr. Tremblay, and that negligent investigation resulted in serious, unjustified, charges being laid; an unnecessary public safety warrant being obtained; an unnecessary dynamic entry to the Tremblay/Mongrain home being effected; and Mr. Tremblay being arrested in an unnecessarily dramatic and public fashion at his residence.

[70] Compensable damage is limited to “pains and penalties that are wrongfully imposed” (Hill, at para. 32). Imprisonment resulting from a wrongful conviction constitutes personal injury to the person imprisoned. But even where imprisonment does not occur, a claimant can suffer harm due to negligent investigation resulting in compensable damage. I will come back to the issue of damages after considering other potential causes of action.

False Arrest, Unlawful Detention, and Unlawful Imprisonment

(a) Reasonable and Probable Grounds to Arrest

[71] The applicable principles relating to the issue of whether police officers have reasonable and probable grounds to make an arrest have been helpfully summarized by Hill, J. in R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225, at para. 83, and I adopt those principles.

[72] I accept the evidence of Sergeant Aylen that, on the afternoon of October 16, 2006, after he had reviewed the various occurrence reports and IARs completed by his colleagues and the written statements of Ms. Perry, Mr. Ronald Morris, and Ms. Lavigne, he subjectively believed that he had reasonable and probable grounds to arrest Mr. Tremblay for the following offences under the Code:

Besetting or Watching

s. 423(1)(f) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,

(f) besets or watches the place where that person resides, works, carries on business or happens to be;

Mischief

s. 430(3) Every one who commits mischief in relation to property … the value of which exceeds five thousand dollars

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

[73] The question is whether, objectively, such grounds existed. As stated by Epstein J.A. in R. v. Wu, 2015 ONCA 667, 127 O.R. (3d) 494, at para. 49, in addition to the police officer subjectively believing that a person has committed or is about to commit an indictable offence, “the police officer must be able to justify that belief on an objective basis, meaning that a reasonable person placed in the position of the police must be able to conclude that there were reasonable and probable grounds.” In considering whether Sergeant Aylen’s belief was reasonable in all of the circumstances, Sergeant Aylen’s experience and training at the time these events unfolded is relevant (R. v. MacKenzie, 2013 SCC 50, [2013] S.C.R. 250, at paras. 62-63). At the time, Sergeant Aylen had been acting in the capacity of a general assignment detective for a year and had been officially in that role for a month. He had been a police officer for about nine years. There was no evidence that he had any particular experience in investigating neighbourhood disputes, in completing ITOs, or in seeking and executing public safety warrants, that would add more weight to the objective existence of reasonable and probable grounds.

(i) Mischief

[74] There can be no real issue that reasonable and probable grounds to arrest Mr. Tremblay for mischief existed at the time of his arrest. It was not in dispute that, at a time when Ms. Perry and Mr. Huppé had their home on the market, Mr. Tremblay had parked an old van on the lot line between his property and that of Ms. Perry and Mr. Huppé, had placed four tires on the hood and roof, and had written on the van in fluorescent yellow paint: I AM NOT RESPONSIBLE FOR YOUR BASEMENT FLOODS. Mr. Tremblay’s defence was based on his assertion that he had done this for the purpose of communicating with Ms. Perry and Mr. Huppé, trying to get them to withdraw their civil lawsuit, and conveying the message that they were dishonest people.

[75] Wake J. of the Ontario Court of Justice found Mr. Tremblay guilty beyond a reasonable doubt of the offence of mischief. The conviction was upheld on appeal to the Superior Court of Justice. The conviction was overturned at the Ontario Court of Appeal due to the Court’s interpretation of the saving provision in s. 430(7) of the Code. That section reads: “no person commits mischief within the meaning of [s. 430] by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.” The Court of Appeal decided that the wording of s. 430(7) was ambiguous. This opened the door for the section to be interpreted in a fashion consistent with freedom of expression, as guaranteed by s. 2(b) of the Charter.

[76] In short, Mr. Tremblay’s acquittal on the charge of mischief was based on a legal interpretation of s. 430(7) of the Code – one in regard to which judges at different levels of court had different interpretations. Sergeant Aylen had no way of knowing which interpretation would ultimately win the day.

[77] The fact that Crown counsel and two levels of court were of the opinion that there was sufficient evidence to support a finding of guilt of mischief beyond a reasonable doubt certainly supports the conclusion that Sergeant Aylen had reasonable and probable grounds to charge Mr. Tremblay with this offence.

(ii) Intimidation

[78] The requirement is that the information relied on by the police officer in deciding to arrest a suspect be reliable at the time the officer decides to make an arrest. Surely, if the police officer has information which raises a red flag as to the reliability of that information, there is some obligation on the police officer, if acting reasonably, to make further inquiries before proceeding with the arrest. This is particularly so in circumstances where there is no urgency and no concern that a delay could result in harm happening to a person or to property, or in evidence being destroyed.

[79] There was no urgency in this case, for the reasons set out in para. 58 above.

[80] There were red flags that called out for further investigation to ensure that the information relied on by Sergeant Aylen in arresting Mr. Tremblay for intimidation was sufficiently reliable to justify an arrest. A police officer, acting reasonably, would not have concluded that he or she had reasonable and probable grounds to arrest Mr. Tremblay for intimidation without investigating at least some of those red flags further. Those red flags included:

• the existence of the civil litigation regarding the drainage pipe and the resulting acrimony between the six plaintiffs in the civil action and the Plaintiffs in this action;

• the fact that both the plaintiffs and the defendants in that litigation were calling on the police to document complaints about the other – pointing to the possibility that the litigants were using the police to bolster their case against the opposing side;

• the fact that in documenting such complaints, Ms. Perry, Mr. Huppé, and Officer Walsh had asked that the police take no steps but simply document the complaints;

• the fact that much of Officer Walsh’s statement to the police was based on hearsay;

• the fact that many of the allegations made by Ms. Perry and Mr. Huppé related to the behaviour of Ms. Mongrain – not that of Mr. Tremblay;

• the delay on the part of Ms. Perry and Mr. Huppé in reporting allegations, and their showing more interest in having the police intervene only after Mr. Tremblay had complained to the police about Mr. Huppé endangering himself and his children by driving dangerously in their vicinity;

• the fact that Ms. Perry and Mr. Huppé had not referred to various, serious, allegations in their earlier calls to the police but had then referred to such alleged incidents in later calls;

• the fact that the couple to whom Sergeant Aylen was referred for the corroboration of Ms. Perry and Mr. Huppé’s allegation had the same last name as one of the other litigants in the civil action against Mr. Tremblay and Ms. Mongrain;

• the clear lack of independence of the statements of Mr. Morris and Ms. Lavigne, Ms. Lavigne having prepared both;

• signs of collusion between Ms. Perry, Ms. Lavigne and Mr. Morris; and

• the error regarding one of the dates provided by Mr. Morris, when compared with other information in the hands of the police.

[81] I cannot conclude that Sergeant Aylen made “a conscientious and informed decision as to whether charges should be laid” (495793 Ontario Ltd., at para. 51) when he did not investigate any of these red flags prior to arresting Mr. Tremblay. As well, I cannot conclude that Sergeant Aylen presented to the prosecutor the full facts that were available to him at the time of the arrest. In saying this, I realize that I am brushing up against the principle that a police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses, or obtain the suspect’s version of events before being able to form reasonable and probable grounds. However, in the circumstances of this case, I simply cannot accept that, objectively, reasonable and probable grounds existed in regard to the charge of intimidation when all of these red flags were left waving and the investigating officer chose not to interview the complainants or the suspect in the case before arresting the suspect. Sergeant Aylen is not being criticized for not interviewing all potential witnesses – he is being criticized for not interviewing any of the key witnesses in the case. This was not a situation where Sergeant Aylen had personally witnessed any criminal behaviour. This was not a situation where Sergeant Aylen had sworn statements from any of the witnesses. It was a situation where, in the course of a couple of hours of reviewing unsworn witness statements and historical occurrence reports, he determined that an arrest was justified – in circumstances presenting no urgency.

(b) False Arrest and Unlawful Detention

[82] False arrest is a tort resulting from the intentional and total confinement of a person against his will and without lawful justification. Unlawful detention and unlawful or false imprisonment, similarly, are torts flowing from the unlawful deprivation of a person’s liberty. Once a plaintiff has proven that he was arrested or detained by the defendant, or under the defendant’s direction, the onus shifts to the defendant to justify his actions (Collis v. Toronto Police Services Board, 2007 CanLII 36634, 228 O.A.C. 333 (S.C. Div. Ct.), at para. 28).

[83] There is no question that Mr. Tremblay was arrested, detained, and imprisoned by Officers Aspilaire and Ryan on the instructions of Sergeant Aylen. Despite Officer Aspilaire testifying that there was an outstanding warrant for Mr. Tremblay’s arrest, Sergeant Aylen was clear, and I find, that the police did not have a warrant for the arrest of Mr. Tremblay at the time of his arrest outside his home on October 17, 2006.

[84] The circumstances in which a police officer may arrest someone without warrant are set out in s. 495 of the Code.

495(1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) …

(2) A peace office shall not arrest a person without warrant for

(a) …

(b) an offence for offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, …

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

i. establish the identity of the person

ii. secure or preserve evidence of or relating to the offence,

iii. prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purpose of

(a) any proceedings under this or any other Act of Parliament; and

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

[85] Both the offence of mischief in relation to property the value of which exceeds five thousand dollars under s. 430(3) of the Code and intimidation under s. 423(1)(f) of the Code are hybrid offences that may be prosecuted as indictable or summary conviction offences. Therefore, s. 495(2) of the Code comes into play in regard to both offences. I have already found that Sergeant Aylen did not have reasonable and probable grounds to arrest Mr. Tremblay for intimidation, due to his negligent investigation of that offence. As a result, it is really only in regard to the offence of mischief that s. 495(2) needs to be considered.

[86] By virtue of s. 495(3), the burden of proving that the arrest was unlawful because of non-compliance with s. 495(2) is on the Plaintiffs. They have to prove that Sergeant Aylen, Officer Aspilaire, and Officer Ryan believed on reasonable grounds that the public interest, having regard to all of the circumstances, could be satisfied without arresting Mr. Tremblay. In Collins v. Brantford Police Services Board (2001), 2001 CanLII 4190 (ON CA), 151 O.A.C. 152, 158 C.C.C. (3d) 405 (C.A.), at para. 14, Rosenberg J.A. stated:

The decision not to make a warrantless arrest for a hybrid offence must be made in the public interest having regard to all of the circumstances. The factors enumerated in s. 495(2)(d) are only some, albeit the most important, of the factors to which the officer’s attention is expressly directed. The overriding consideration remains the public interest.

[87] The Plaintiffs have satisfied me that Sergeant Aylen did not comply with the requirements of s. 495 when he had Officers Aspilaire and Ryan arrest Mr. Tremblay. I am satisfied that, not only could the public interest have been satisfied without Mr. Tremblay being arrested, but also, Sergeant Aylen realized that at the time. In the same vein, had I found that Sergeant Aylen had reasonable and probable grounds to arrest Mr. Tremblay for intimidation, the Plaintiffs would have satisfied me that Sergeant Aylen did not comply with the requirements of s. 495(2) of the Code when he arrested Mr. Tremblay for intimidation without a warrant.

[88] As stated by the Ontario Court of Appeal in R. v. Brown, 2012 ONCA 225, 289 O.A.C. 327, at para. 14, it does not suffice for a police officer to subjectively believe that he has reasonable grounds to act under s. 495. There must be something to lend objective justification or verification to the officer’s belief. Nothing provided that objective reasonableness in the circumstances of this case.

[89] Sergeant Aylen had no need to arrest Mr. Tremblay to establish his identity or to secure or preserve evidence of or relating to an offence. Sergeant Aylen had reasonable grounds to believe that the need to prevent the continuation or repetition of the offence or the commission of another offence could be satisfied without arresting Mr. Tremblay. The offence of mischief was no longer continuing. Mr. Tremblay had heeded his lawyer’s advice to remove the van from the lot line and to remove the painting from the van. Mr. Tremblay had no criminal record. Mr. Tremblay, on his own accord, had sought the involvement of the police to defuse relations between himself and Mr. Huppé. Neither Sergeant Aylen nor any other police officer had spoken to Mr. Tremblay to ask him to stop the behaviour that Ms. Perry and Mr. Huppé perceived as being intimidating. There was no reason to believe that, if Mr. Tremblay had been told by the police to stop all offending behaviour, he would have ignored the direction. Officer Taillefer had communicated with Mr. Tremblay, without incident, concerning Mr. Tremblay’s allegation that Mr. Huppé had driven dangerously close to him and his children. I again note that, for all of the reasons set out in paragraph 58 above, this was not a situation involving any urgency – something readily admitted by Sergeant Aylen. Finally, Sergeant Aylen had no reasonable grounds to believe that, if he did not arrest Mr. Tremblay, Mr. Tremblay would fail to attend court.

[90] For these reasons, I conclude that Mr. Tremblay’s arrest without warrant was not authorized under s. 495 of the Code, and his corresponding detention and imprisonment following arrest was likewise unlawful. Having reasonable and probable grounds to believe that Mr. Tremblay had committed the offence of mischief under s. 430(3) of the Code, but not being able to rely on s. 495 of the Code, Sergeant Aylen could have proceeded under s. 496(b) of the Code and issued an appearance notice. The same observation would apply had Sergeant Aylen had reasonable and probable grounds to believe that Mr. Tremblay had committed the offence of intimidation.

[91] The Plaintiffs have established the liability of Sergeant Aylen for the torts of false arrest, unlawful detention, and unlawful imprisonment. They have not established the liability of Officers Aspilaire and Ryan, who were simply following the instructions of Sergeant Aylen when arresting and detaining Mr. Tremblay, and who were operating, at the time, on the mistaken belief that the arrest was pursuant to a warrant.

[92] In that Mr. Tremblay’s arrest and detention were unlawful, his rights under s. 7 of the Charter, not to be deprived of the right to liberty and security of the person except in accordance with the principles of fundamental justice, and s. 9 of the Charter, not to be arbitrarily detained or imprisoned, were breached.

Unreasonable Search and Seizure

[93] To be reasonable under s. 8 of the Charter, a search must be authorized by law, the authorizing law must itself be reasonable, and the search must be conducted in a reasonable manner (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 16).

(a) Was the search authorized by law?

[94] Sergeant Aylen sought a warrant under s. 117.04 of the Code, which states:

117.04(1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, …, in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, … the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by, or in the possession of the person.

[95] As stated by Moldaver J.A. (as he then was) in R. v. Hurrell (2002), 2002 CanLII 45007 (ON CA), 60 O.R. (3d) 161, 166 C.C.C. (3d) 343 (C.A.), at para. 43:

Both of the Attorneys-General submit, correctly in my view, that the public safety component of s. 117.04(1) envisages an identifiable threat of serious or significant harm likely to be caused by firearms and other dangerous objects to the safety of specified individuals. [Emphasis added]

[96] The threat must be more than speculative in nature. Mere suspicion does not suffice. The evidence relating to the threat must be credible. The threat must present a real risk of physical or psychological harm occurring to individuals in the community and the potential harm must be serious (Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 57; R. v. Litman, [2007] O.J. No. 5421 (C.J.), at paras. 18-22).

[97] A subjective assessment of public safety is not sufficient. The requirement is that there be objectively verifiable “reasonable grounds to believe” that it would be desirable in the interests of safety for weapons to be removed from someone’s possession (Hurrell).

[98] According to Sergeant Aylen, his concern was that Mr. Tremblay might use one of his weapons to harm Mr. Huppé or Ms. Perry in retaliation for his being arrested for mischief and intimidation. Sergeant Aylen did not express concern that Mr. Tremblay would use those weapons against the police at the time of his arrest.

[99] In his ITO in support of the warrant, Sergeant Aylen identified the firearms thought to be at the Tremblay/Mongrain home. He noted that there was a long-standing neighbour dispute between Mr. Tremblay and Mr. Huppé and Ms. Perry which resulted in a number of neighbours starting a civil action against Mr. Tremblay. He stated that it was after this civil action was commenced that Mr. Tremblay started to intimidate Mr. Huppé and Ms. Perry. Sergeant Aylen summarized the intimidating behaviour as being:

• Mr. Tremblay stared at the Huppé/Perry family for long periods of time;

• Mr. Tremblay took photos of Mr. Huppé and his children;

• Mr. Huppé and Ms. Perry had heard gunshots coming from the Tremblay/Mongrain property on a number of occasions;

• Mr. Tremblay had spray painted the van that he parked along the lot line; and

• Mr. Huppé and Ms. Perry had heard many loud, aggressive arguments coming from the Tremblay/Mongrain home.

[100] Sergeant Aylen went on to say that many of these incidents had been witnessed by Mr. Morris and Ms. Lavigne who lived across the street. Sergeant Aylen summarized the impact Mr. Tremblay’s behaviour was having on the Huppé/Perry family, and concluded by stating:

Pierre Huppé has expressed concern that Richard Tremblay may become violent with him or his family. Both Pierre Huppé and Deanna Perry are very concerned for their family’s safety once Richard Tremblay is charged for mischief and intimidation in relation to this incident.

[101] What Sergeant Aylen did not include in his ITO was any of the following:

• His investigation had commenced the previous day and had consisted of a review of unsworn written statements and a brief interview with Mr. Morris and Ms. Lavigne.

• Richard Tremblay had been in possession of firearms and valid licences for their possession for many years, without incident.

• Richard Tremblay had no criminal record.

• Johanne Mongrain had no criminal record.

• Richard Tremblay was in a long-term marriage and had five children, four of whom were living at home with him and his wife.

• Both Mr. Tremblay and Ms. Mongrain worked outside the home.

• There were six neighbours involved in the civil action against Richard Tremblay and his wife. One was Marc Morris whom Sergeant Aylen could have determined was the son of Ronald Morris who supposedly corroborated the allegations of Mr. Huppé and Ms. Perry, the key complainants. Two other plaintiffs in the civil litigation were police officers with the OPS.

• It was likely that Mr. Huppé and Ms. Perry had spoken to Ronald Morris prior to Sergeant Aylen meeting with Mr. Morris and Ms. Lavigne, as the joint statement made by Mr. Morris and Ms. Lavigne mirrored the allegations of Ms. Perry – even in terms of the order in which they were expressed. Even if this level of detail was not provided, Sergeant Aylen was obliged to highlight the obvious shortcomings in the evidence of Mr. Morris and Ms. Lavigne.

• Sergeant Aylen had not interviewed any of the plaintiffs in the civil action including Mr. Huppé and Ms. Perry, who were the complainants in the criminal matter.

• Sergeant Aylen had not interviewed Mr. Tremblay or Ms. Mongrain.

• On October 9, 2006, Mr. Tremblay had called the police to report an incident of Mr. Huppé driving quickly around Mr. Tremblay and his children, while they were in the street, thereby putting Mr. Tremblay and his children in harm’s way.

• Following an initial complaint to the OPS by Ms. Perry on June 22, 2006, neither she nor Mr. Huppé had shown any interest in pursuing matters further until after Mr. Tremblay had contacted the police in regard to Mr. Huppé’s driving.

• Ms. Perry advised Officer White on October 12, 2006 that she did not want the police to speak to Mr. Tremblay but, instead, simply wanted the police to document her complaints.

• Officer Taillefer had been investigating the driving incident since October 12, 2006 and had spoken with both Mr. Tremblay and Mr. Huppé on the afternoon of October 16, 2006, without incident or any adverse reaction on the part of either man.

• Mr. Tremblay had only spray painted the message on his old van on October 9, 2006, after he alleged Mr. Huppé had put himself and his children in danger by his driving.

• Mr. Tremblay had voluntarily removed his van from the lot line and had removed the paint from the van on October 13, 2006 – well prior to his meeting with Officer Taillefer.

• One of the grounds for seeking the firearms warrant was that Mr. Tremblay had taken photos of Mr. Huppé and his children in June 2006. That incident had not been repeated.

• It was on June 18 and July 18 that Mr. Huppé and Ms. Perry allegedly heard what they thought might be gunshots from the Tremblay/Mongrain property. They had only reported these incidents to the OPS several months later, and there had been no further alleged incidents since July 2006.

• On October 16, 2006, Ms. Perry advised the police that she did not know whether Mr. Tremblay had any guns – a further indication that Mr. Huppé and Ms. Perry were unsure whether the sounds they heard on June 18 and July 18 were in fact gunshots and were coming from the Tremblay/Mongrain property.

• Ms. Perry and Mr. Huppé complained against loud and aggressive arguments in the Tremblay/Mongrain household for the first time in their statements of October 16, 2006, and Sergeant Aylen had never inquired as to the particulars of those arguments and whether they related in any respect to Mr. Tremblay’s dispute with the neighbours.

• Sergeant Aylen had already been in contact with the Tactical Unit for assistance in service of the public safety warrant by the time he attended before Justice of the Peace Sculthorpe, as he anticipated that a hard or dynamic entry would be used.

[102] In considering the validity of the warrant under s. 117.04 of the Code, I must conduct a contextual assessment of the grounds offered in support of the warrant. I must not approach the sufficiency analysis in a piecemeal fashion (R. v. Hafizi, 2016 ONCA 933, at paras. 48-49).

[103] As stated by Brown J.A. in Hafizi, at paras. 43-44:

… [W]arrants and authorizations are presumptively valid, and the reviewing judge must not conduct a de novo hearing of the ex parte application: R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at paras. 83-84.

The test a reviewing judge is to apply is whether, in light of the record amplified on review, the ITO “contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met”: R. v. Nero, 2016 ONCA 160, 345 O.A.C. 282, at para. 70. If on the amplified record the reviewing judge “concludes that the authorizing judge could have granted the authorization, then he or she should not interfere”: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. In this process, “the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”: Garofoli, at p. 1452; R. v. Hall, 2016 ONCA 13, 128 O.R. (3d) 641, at paras. 47-48.

[104] Although in preparing ITOs, the police are not expected to include every piece of information they have gathered during their investigation, they are obliged to provide full, frank, and fair disclosure of the material facts (United States of America v. Friedland, 1996 CanLII 8213 (Ont. Gen. Div.), at para. 26). As a result of the extent of the omissions listed above, I find that Sergeant Aylen did not make full, frank, and fair disclosure of material facts in the ITO he prepared in order to obtain the public safety warrant under s. 117.04(1) of the Code. That resulted in the Justice of the Peace being misled as to the current circumstances and current exigencies when he issued the public safety warrant. I am unable to conclude that, had the most significant portions of this additional information been provided to the Justice of the Peace, the Justice of the Peace would have had reasonable and probable grounds to authorize the warrant and, therefore, could have issued the warrant.

[105] The key deficiency in the ITO prepared by Sergeant Aylen was that it misrepresented the existing circumstances or context, in that it portrayed the tension between Mr. Tremblay and his neighbours as increasing over the months and heading toward a boiling point – a portrayal that was not accurate. For example, the van had been removed from the lot line days earlier and its offensive message erased – without police intervention. Of particular significance was the failure to put a timeframe on the two incidents when Mr. Huppé and Ms. Perry suspected they had heard gunshots on the Tremblay/Mongrain property, to acknowledge their uncertainty as to what they had actually heard, to highlight that there was no evidence that Mr. Tremblay had ever threatened anyone, let alone with a weapon, and to note that Mr. Huppé and Ms. Perry had not considered the incidents significant enough at the time to report them to the police.

[106] It is also significant that no information was provided to enable the Justice of the Peace to assess the relative risks associated with a public safety warrant being executed, likely through dynamic entry, at a home where four children were residing.

[107] In my view, the Justice of the Peace could not have granted the authorization had full, frank, and fair disclosure been made, because he could not have found, on reasonable grounds, that an identifiable threat existed of serious or significant harm likely to be caused by firearms to the safety of Ms. Perry and Mr. Huppé. For the Justice of the Peace to have arrived at this conclusion after receiving full, frank, and fair disclosure would almost amount to an acceptance that it would be appropriate to execute a public safety warrant any time a hunter (of which there are millions in Canada) is engaged in a neighbourhood dispute or is engaged in hotly contested civil litigation.

[108] I conclude that the public safety warrant was invalid, and the privacy rights of Mr. Tremblay and Ms. Mongrain under s. 8 of the Charter were breached.

[109] Even if I were to find that the authorization was valid, for the reasons that follow, the privacy rights of Mr. Tremblay and Ms. Mongrain under s. 8 of the Charter were breached as a result of the way in which the warrant was executed.

(b) Was the search conducted in a reasonable manner?

[110] The onus is on the Plaintiffs to prove on a balance of probabilities that the search warrant was executed in an unreasonable manner and that, as a result, their rights under s. 8 of the Charter were breached (R. v. Burke, 2013 ONCA 424, 285 C.R.R. (2d) 6, at para. 40; Cornell, at para. 17).

[111] The decisions made by the police as to how to conduct the entry to the residence must be assessed in light of the information reasonably available to them at the time the decision was made (Cornell, at paras. 4 and 23). The police must be allowed some latitude in the manner in which they decide to enter premises. In considering the reasonableness of the way in which a search was conducted, a court must appropriately balance the rights of suspects with the requirements of safe and effective law enforcement. The court must not assess what would have been reasonable in hindsight (Cornell, at para. 24).

[112] Here, there was no suggestion that Mr. Tremblay was involved in any inherently violent criminal activity. The police were not dealing with a case involving gangs or drugs (Cornell). There was no suggestion that someone in possession of weapons might have mental health issues that could result in others being put at risk (R. v. Neville, [2004] O.J. No. 1943 (C.J.)). This was not a case where the police feared that evidence might be destroyed if they used something other than a “hard entry” (Burke). For all of the reasons set out in paragraph 58 above, there was no urgency in the police taking steps to arrest Mr. Tremblay or to seize his weapons when they did.

[113] What the police were dealing with, and what they knew they were dealing with, were ordinary people, living in a residential community with their families, who, unfortunately, had become embroiled in a bitter neighbourhood dispute about a drainage ditch. There were bad feelings aplenty, childish behaviour, game playing, unpleasant encounters, hyper-vigilance, and much unneighbourly conduct. But that was it.

[114] This was not a case where the police had reasonable grounds for fearing weapons would be used against them or against others in the house were the police to simply knock on the Tremblay/Mongrain door and advise that they had a search warrant to search the premises for weapons and seize those weapons. As Sergeant Aylen knew, Mr. Tremblay himself had contacted the police for assistance in regard to the dispute with Mr. Huppé and Ms. Perry, expressing concern about Mr. Huppé’s alleged aggressive driving. He had asked the police to speak to Mr. Huppé, and Officer Taillefer had spoken to both gentlemen in an effort to reduce tensions and avoid further overt conflict. There was no reason for the police to fear that if they again knocked on the door of the Tremblay/Mongrain home, they would be met with any form of violence, simply as a result of there being registered weapons in the home.

[115] Despite this reality, right from the beginning of planning the arrest of Mr. Tremblay and obtaining a public safety warrant, Sergeant Aylen determined that he would require the assistance of the SWAT team to execute the search warrant. The SWAT team prepared for a dynamic entry into the premises.

[116] Sergeant Kilcollins telephoned the residence several times, but received no answer. He did door knocks on the front and back doors but, again, received no response, aside from the barking of a dog. I have no doubt that neither Sergeant Aylen, nor Sergeant Kilcollins, expected anyone to be at home. October 17, 2006 was a Tuesday – a work and school day. The police knew, or should have known through reasonable inquiry as part of their investigation, that both Mr. Tremblay and Ms. Mongrain went to work in the morning and came home in the late afternoon. The police had the residence under surveillance during the hour or so prior to the SWAT team’s arrival on site. They had not seen any activity at the house over this period. The police had a description of Mr. Tremblay’s vehicle and could ascertain that it was not on site. The police also knew that four children ranging in age from 10 to 18 lived at the residence and, in the normal course, would be at school until approximately 3:00 p.m. Officer Ouellette, who was the community liaison officer at the children’s school and who, for some inexplicable reason, was tasked to be part of the search team at the Tremblay/Mongrain property, certainly knew at what time the children would likely be arriving home from school. The police went to the premises expecting to break down the door because no one would be at home and expecting to be in the course of their search of the premises when the Tremblay children got home from school.

[117] Ms. Mongrain described how, when she and Mr. Tremblay turned the corner onto their street, they saw a scene right out of the movies – police trucks and police vehicles were parked all over the place. At least 12 police officers were on the property, some wearing full SWAT-team gear and carrying assault rifles. Neighbours were watching from their windows or front yards. One would have thought that a major drug bust was happening.

[118] This level of police force and intrusion was unnecessary in the circumstances of this case. There were so many other options that the police could have chosen that would have been far less invasive and traumatic for the entire Tremblay/Mongrain family and equally effective in enforcing the law and reducing risk. An officer could have spoken to Mr. Tremblay about the concerns raised by Ms. Perry/Mr. Huppé and could have given him a warning as to the serious consequences that would flow from any behaviour on his part that might be intimidating for his neighbours. Mr. Tremblay’s civil lawyer could have been contacted and asked to intervene, as had happened – with success – in regard to the removal of the van from the lot line. Ms. Perry, Mr. Huppé, and the other litigants in the civil proceedings, knew who that lawyer was. The police could have attended at the Tremblay/Mongrain property at a time when they knew Mr. Tremblay would likely be there. They could have spoken to Mr. Tremblay and asked if he would relinquish his weapons voluntarily until the tension between himself and his neighbours had abated. Or they could have arrested Mr. Tremblay at that time for mischief and released him subject to an undertaking, one of the terms of which was that he would abstain from possessing a firearm and would surrender to the police any firearm and associated document authorizing Mr. Tremblay’s possession of it. Even if the police had obtained a public safety warrant on reasonable and probable grounds, that warrant could have been executed in a non-dynamic, but equally effective, fashion. If the weapons at the Tremblay house had been secured in a reasonable and sensible fashion, any trauma to the Tremblay children could have been minimized.

[119] The fact that Mr. Huppé said that he was afraid of how Mr. Tremblay might react if arrested for mischief or intimidation should not have automatically led to the decision that a public safety warrant was required or that, if required, should be executed by the SWAT team using a hard, or dynamic, entry. Sergeant Aylen should have put all of the information available to him on the table before the decision was taken to use a dynamic entry. Notions of reasonableness and proportionality should have come into play. They were noticeably absent in how the police acted.

[120] In that the search was not properly authorized by law due to the deficiencies in the ITO, and in that the search was conducted in an unreasonable fashion, I find that the privacy rights of Mr. Tremblay and Ms. Mongrain under s. 8 of the Charter were breached.

[121] No specific allegations were made against any of the Defendants, aside from Sergeant Aylen and Officers Aspilaire and Ryan, in the Plaintiffs’ Statement of Claim. The only evidence implicating Sergeant Kilcollins is that he was asked by Sergeant Aylen to provide tactical support to serve a firearms warrant in circumstances considered high risk. According to Sergeant Kilcollins, he and his team did as he was asked and followed normal police procedures in such circumstances. The evidence is inadequate to allow me to find Sergeant Kilcollins, the other members of the tactical unit, or the other members of the search team operating under the instructions of Sergeant Aylen, liable for wrongful search and seizure. Sergeant Aylen was in the driver’s seat in this operation, and responsibility for its shortcomings falls to him.

Negligence of Ottawa Police Services Board

[122] In their Statement of Claim, the Plaintiffs sought damages independently against the OPS Board for negligence in their training of the individual Defendants in regard to proper police procedure with respect to investigations, the obtaining of warrants, and the requirements for a lawful search. In the alternative, if such training was provided, the Plaintiffs alleged that the OPS Board failed to ensure that the individual Defendants followed the training and failed to properly supervise the individual Defendants in the execution of their duties.

[123] The only evidence tendered at trial regarding OPS procedures was that provided by Officer Aspilaire to the effect that he was unaware of any formal system in place at the OPS to advise individual officers if prosecutions in which they were involved failed as a result of a breach of the accused’s Charter rights. No other evidence was tendered from those responsible for the training and supervision of police officers as to the practices and procedures in place at the OPS. As well, no expert evidence was tendered as to the standard of care applicable to police service boards in Ontario in 2006.

[124] After both the Plaintiffs and the Defendants had presented their evidence, and a date had been set for submissions, the Plaintiffs brought a motion to reopen their case to tender additional evidence from a supervisory officer at the OPS. The motion was denied for the following reasons.

[125] Under r. 52.10 of the Rules of Civil Procedure, R.R.O. 1994, Reg. 194:

Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,

(a) The judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs.

[126] A trial judge, who has not yet been rendered functus, has an untrammelled discretion to reopen a trial to prevent a miscarriage of justice, but that discretion is to be used sparingly (Castlerigg Investments Inc. v. Lam (1991), 1991 CanLII 7355 (ON SC), 2 O.R. (3d) 216 (Gen. Div.); Cheema v. Cheema, 2001 BCSC 298, 89 B.C.L.R. (3d) 179, at para. 4). The onus is on the party wishing to reopen the case to prove on a balance of probabilities that a miscarriage of justice might occur if the trial is not reopened (Cheema, at para. 22). On a motion to reopen the case, the court will consider the impact the reopening of the case will have on the opposing party, what delay will be caused by the reopening of the case, and what additional costs will be incurred. The court will also consider whether the proposed evidence would probably alter the judgement, and whether that evidence could have been discovered sooner with reasonable diligence (Halton BMAC Mechanical Inc. v. Design Build Inc., 2014 ONCA 214, 34 C.L.R. (4^th) 183, at para. 9). That being said, the overriding consideration remains the prevention of a miscarriage of justice.

[127] The Plaintiffs’ motion could not succeed. First, the Plaintiffs did not prove what miscarriage of justice would flow from their case not being reopened. The Plaintiffs were still pursuing their claims for damages against the Defendants and the OPS Board, as their employer, under a variety of heads of damage. As well, the Plaintiffs always had available to them the complaints process under the Police Services Act, R.S.O. 1990, c. P. 15 to seek redress for the alleged wrongdoing on the part of various police officers.

[128] Second, the Plaintiffs did not provide the court with a sworn affidavit containing the proposed evidence of the supervisory officer so that the court could assess its significance. All that was provided was a summary of two specific topics to be addressed by the officer.

[129] Third, even if the supervisory officer provided evidence to the effect that there was no system in place at the OPS to notify individual officers if a court had determined they violated an accused’s Charter rights, the Plaintiffs had not tendered any expert evidence as to the standard of care applicable to police services in Ontario in 2006, and they did not intend to tender such expert evidence if their case was reopened. Without such evidence, the Plaintiffs’ claim in negligence against the OPS Board was doomed to fail.

[130] Fourth, there was no evidence before the court as to any causal connection between any deficiency in training and supervision on the part of the OPS Board and the particular actions of Sergeant Aylen in this case. Sergeant Aylen had not been questioned on this topic.

[131] Finally, as the Plaintiffs’ counsel readily admitted, the evidence the Plaintiffs sought to tender if the case was reopened had been readily available prior to the close of the Plaintiffs’ case. No reason was given as to why such evidence was not obtained during the eight years between the commencement of this action and the date of trial.

[132] The Defendants raised additional grounds as to why the Plaintiffs’ motion should fail, but an analysis of those is unnecessary, given the reasons given above.

[133] The Plaintiffs action against the OPS Board for negligence and for punitive damages flowing therefrom is dismissed.

Damages

[134] In their Statement of Claim, Mr. Tremblay and Ms. Mongrain each sought general damages in the amount of $250,000; special damages; and punitive, exemplary and/or aggravated damages in the amount of $250,000.

[135] In closing argument, the Plaintiffs’ counsel summarized the specific damages being sought by Mr. Tremblay as follows:

• general damages against Sergeant Aylen and his employer, the OPS Board, for negligent investigation in the amount of $100,000;

• general damages against Sergeant Aylen and his employer, the OPS Board, for false arrest and imprisonment, including aggravated damages, in the amount of $75,000;

• general damages against Sergeant Aylen and his employer, the OPS Board, for the seizure and retention of Mr. Tremblay’s weapons and PAL in the amount of $15,000;

• punitive damages against all of the Defendants and their employer, the OPS Board, in the amount of $50,000;

• Charter damages only to the extent that tort damages did not provide adequate compensation;

• special damages against Sergeant Aylen and his employer, the OPS Board:

o for legal fees relating to the criminal case - $30,345

o for legal fees relating to the seizure and retention of the guns and PAL - $6,814

o for repair of the door and frame - $4,108

[136] In closing argument, the Plaintiffs’ counsel sought Charter damages for Ms. Mongrain against the OPS Board in the amount of $25,000.

[137] The Plaintiffs’ counsel acknowledged that the damages he was seeking on behalf of his clients were far in excess of damages generally awarded in cases of this nature; however, he urged the court to grant these high awards to deter police officers from acting in the highhanded fashion they adopted in this case.

[138] So much of what the police did in the arrest of Mr. Tremblay and the search and seizure of the Tremblay/Mongrain property seemed gratuitous and was done with an alarming disregard for the ramifications on Mr. Tremblay, Ms. Mongrain, and their children.

[139] There was the arrest, search, and handcuffing of Mr. Tremblay in a very public fashion in plain view of his neighbours and with his wife and children close by. There was the unnecessary involvement of the SWAT team and the dynamic entry into the residence. There was the chaos in the home left by the SWAT and search teams. There was the threat to Ms. Mongrain by Sergeant Aylen to not ask any further questions of the police or else she would be arrested for the same offences as Mr. Tremblay, though Sergeant Aylen would not say what those offences were, as Mr. Tremblay had not yet been officially charged. There was the presence of Officer Ouellette as part of the search team – the very officer to whom the children, if in need, should have been able to turn at their school for assistance. There was Officer Ouellette’s comments to Ms. Mongrain, in the presence of the Tremblay children, that the Tremblays were the most hated people in the neighbourhood and that it was in their best interests to move out of the neighbourhood. This evidence given by Ms. Mongrain was not challenged in any respect on cross-examination. Officer Ouellette was not called as a witness. Sergeant Aylen could only say that he did not remember Officer Ouellette making this comment. I accept Ms. Mongrain’s evidence that Officer Ouellette made this comment to her in the presence of the children.

[140] No sensible reason was provided as to why Mr. Tremblay was taken to the police station following his arrest. Sergeant Aylen had decided to do this in advance of Mr. Tremblay’s arrest. The only justification he offered was so that Mr. Tremblay could contact a lawyer and Sergeant Aylen could question him to gather evidence. Mr. Tremblay would have been better able to obtain legal advice had he not been in police custody. As well, when Sergeant Aylen asked Mr. Tremblay in cell block if he wanted to make a statement, and Mr. Tremblay declined, that was the end of it. Sergeant Aylen and Officer Ouellette did not try to interview Mr. Tremblay.

[141] No sensible reason was provided as to why it took the OPS until approximately 4:00 a.m. on October 18, 2006 to release Mr. Tremblay.

[142] No reason was provided as to why Sergeant Aylen, or someone else at the OPS, did not make an application under s. 117.05 of the Code to deal with the weapons seized from Mr. Tremblay’s home.

[143] The context in which all of this behaviour occurred warrants a close look. Two police officers, Officers Côté and Walsh, both known to Sergeant Aylen, were suing Mr. Tremblay and Ms. Mongrain for $10,000 in damages. Sergeant Aylen was aware of this litigation, as he had access to a police occurrence report initiated by Officer Walsh. Another plaintiff in the civil action, Mr. Huppé, worked at the same school as Officer Ouellette, and had discussed with her all of his complaints about the Tremblay/Mongrain family. Sergeant Aylen claimed that he had not spoken directly to Officers Côté and Walsh so as to protect against any allegations of bias in the way the police treated Mr. Tremblay. However, that same sensibility did not prevent Sergeant Aylen from calling on Officer Ouellette to participate in the search, to take a significant role in interactions with Ms. Mongrain during the search, and to partner with Sergeant Aylen when he went to interview Mr. Tremblay in the cell block. From the comments made by Officer Ouellette to Ms. Mongrain at the time of the search, I conclude that Officer Ouellette took a personal interest in this case.

[144] Although the evidence at trial fell short of persuading me that malice was involved on the part of the police, it was adequate to persuade me that the police were biased in their treatment of Mr. Tremblay and Ms. Mongrain.

(a) General Damages

[145] As a preliminary comment, I note that Mr. Tremblay was not cross-examined on any aspect of his description regarding the impact of the negligent investigation, false arrest, unlawful detention, and unlawful search and seizure on himself and the other members of his family. I accept his evidence as being truthful and accurate in this regard.

(i) False Arrest and Unlawful Detention

[146] Mr. Tremblay is entitled to general damages for false arrest and imprisonment for the period of time between approximately 4:30 p.m. on October 17, 2006 to approximately 4:00 a.m. on October 18, 2006. These damages are meant to compensate for loss of liberty, loss of time, and the disruption to Mr. Tremblay’s normal routine. They are meant to compensate for the humiliation and assault to his dignity occasioned by being arrested, placed in handcuffs, and searched in full view of his neighbours, with his wife and children close by. They are meant to compensate for his being hauled away to the police station in a police cruiser, relieved of his personal possessions, clothed in prison garb, photographed, fingerprinted, searched, and locked up. For this period of slightly less than 12 hours, I award general damages to Mr. Tremblay against Sergeant Aylen and the OPS Board, for false arrest and unlawful detention, in the amount of $15,000.

[147] In arriving at this figure, I am taking into account the unnecessarily public and humiliating fashion in which the arrest and detention occurred, though the evidence falls short of convincing me that malice was involved. I am also taking into account the fact that excessive force was not used against Mr. Tremblay by Officers Aspilaire and Ryan when they were arresting him and transporting him to the cell block. That being said, Mr. Tremblay suffered pain during the course of his arrest and transport. His hands were handcuffed behind his back and then, being a large man, he was pried into the back seat of the police cruiser. Mr. Tremblay has had several back injuries and has had discs removed. He suffers from periodic herniated discs and has certain mobility limitations. He suffered back pain as a result of being placed in the position he was in during the 20-30 minute ride to the police station.

(ii) Negligent Investigation

[148] There must be a causal connection between the breach of the standard of care and the compensable damage suffered. “The starting point is the usual ‘but for’ test. If, on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of the police, then the causation requirement is met” (Hill, at para. 93). That is the case here. The damages suffered by Mr. Tremblay in the period following his arrest would not have occurred but for the negligence of Sergeant Aylen.

[149] The negligent investigation conducted by Sergeant Aylen resulted in Mr. Tremblay’s unlawful arrest and detention, for which damages have already been awarded; in the unlawful search and seizure at the Tremblay/Mongrain property, for which general damages in regard to trauma will be awarded under this section; and generally in post-traumatic stress in the months and years that followed.

[150] There is no question that the manner in which the police treated Mr. Tremblay and his family on October 16-17, 2006 was deeply disturbing to him. He felt bullied by the police. He considered what the police did that day to be an abuse of power. He felt that he could not trust the police to treat him and his family in a fair and unbiased fashion as a result of the civil action in which he was engaged with two local police officers. He felt that he and his family could not call on the police to protect their rights. All of these feelings on the part of Mr. Tremblay were justified, considering how events unfolded on October 16, 2006.

[151] The events of that day weighed heavily on Mr. Tremblay. He became anxious, he had difficulty sleeping, and he had trouble performing up to his normal standard at work. He had feelings of vulnerability arising from the way in which he, his wife, and his children had been treated during the search and at the time of his arrest. He felt humiliated before his family and neighbours.

[152] Mr. Tremblay also described how he and his family were isolated in the community – their neighbours keeping a distance from them after the events of that day. Over time, as the Huppé/Perry, Walsh/Côté, and Morris/Lavigne families moved away, the atmosphere in the neighbourhood became less hostile; however, Mr. Tremblay still experienced a distance on the part of many neighbours. The isolation experienced by Mr. Tremblay and his family started long before the events of October 16-17, 2016. It started at least as early as the initial argument between Marc Morris and Mr. Tremblay about the drainage pipe Mr. Tremblay had installed and as to whether it contravened city by-laws. Consequently, although the events of October 16-17, 2016 exacerbated the family’s isolation, they did not initially cause such isolation.

[153] Shortly after the events of October 16, 2006, Ms. Mongrain and Mr. Tremblay saw a psychologist obtained through Ms. Mongrain’s Employment Assistance Program to deal with the anxiety they were experiencing following Mr. Tremblay’s arrest and the search of their home. Despite best efforts, the psychologist’s records could not be produced at trial because he was no longer in practice. The best evidence is that the sessions continued until 2008.

[154] In November 2007, upon referral from his family physician, Mr. Tremblay saw a psychiatrist, Dr. Degala Krishnaprasad, for an assessment. Mr. Tremblay spoke of feeling “anxious, depressed both subjectively and objectively, worried about his future, about his finances, about his family, and children” as a result of the way he had been handled by the police in the wake of the neighbourhood dispute. Mr. Tremblay described his children as having been terrorized as a result of the events of October 17, 2006. They were anxious and experiencing panic attacks. The children had seen a psychologist as a result of their anxiety and depression. Dr. Krishnaprasad diagnosed Mr. Tremblay as have dysthymic disorder and chronic posttraumatic stress disorder. He prescribed medication on an as needed basis for anxiety, agitation, and insomnia.

[155] On December 12, 2007, Dr. Krishnaprasad noted that Mr. Tremblay was feeling a lot better regarding his anxiety and panic symptoms. He was not, at that time, in any acute emotional or physical distress. His medications were nevertheless continued.

[156] On January 14, 2008, Dr. Krishnaprasad reported that Mr. Tremblay was feeling anxious about his upcoming criminal court appearance but, generally, he was coping better.

[157] On February 11, 2008, Dr. Krishnaprasad reported that Mr. Tremblay was feeling less anxious and less panicky. His medication was continued.

[158] On June 4, 2008, Dr. Krishnaprasad reported that Mr. Tremblay was coping better than before regarding his mood and affect, despite going through a lot of stress with his various court actions. His medication was continued for a further three months.

[159] For the psychological damage and the loss of enjoyment of life and normal daily activities, I award Mr. Tremblay damages against Sergeant Aylen and the OPS Board in the amount of $10,000. Mr. Tremblay could not get away from the environment in which the trauma occurred, unless he sold his home. He was not obliged to move away as an aspect of mitigation. The family had built their dream home and had every right to remain in it. These damages would have been higher were it not for my finding that some of Mr. Tremblay’s psychological symptoms and loss of enjoyment of life related to continuing anxiety over the civil dispute with his neighbours, and anxiety over the upcoming criminal trial.

(iii) Wrongful Seizure of Weapons

[160] Mr. Tremblay started hunting with his father when he was eight or nine years old. He inherited his father’s rifle in 1979. Over the 27 years prior to 2006 during which Mr. Tremblay had owned a weapon, there had never been any issues relating to the law. In October 2006, Mr. Tremblay had three registered guns which he used when hunting, three to five times a year. He had two pellet guns which he used for target practice. The police seized all of these weapons.

[161] In 2006, he was in the habit of taking his children hunting for deer, moose, partridge, and rabbit. As a result of the seizure of his weapons and PAL in October 2006, the ban on his possessing firearms contained in the undertaking signed at the time of his release, and the subsequent revocation of his firearms licence in June 2007, Mr. Tremblay was unable to go hunting for three seasons.

[162] The damages were higher than they needed to be because the police also did not bother to bring an application under s. 117.05 of the Code to get authorization for them to retain possession of Mr. Tremblay’s weapons. Instead, they did nothing – thus requiring Mr. Tremblay to retain a lawyer and bring an application for the release of his weapons and the reinstatement of his firearms licence.

[163] For the loss of enjoyment of life occasioned by not having possession of his weapons and not being able to hunt on his own, with his friends, or with his children for a period of three years; and for the hassle of having to initiate legal proceedings to secure the return of his weapons and licence, I award damages in favour of Mr. Tremblay and against Sergeant Aylen and the OPS Board in the amount of $5,000. I will deal with the special damages claim regarding legal fees below.

(b) Charter Damages

[164] Section 24(1) of the Charter empowers courts to grant “appropriate and just” remedies for Charter breaches, and that includes awarding damages (Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 16-22). Such damages may serve one or more of the functions of compensation, vindication, and deterrence (Ward, at paras. 25-31). All three of these functions could be applicable in this case. However, if other remedies adequately meet the need for compensation, vindication, and deterrence, no award of Charter damages is necessary.

[165] Mr. Tremblay has already been compensated under tort law for the losses he experienced as a result of the conduct of Sergeant Aylen and the OPS Board, and the award of damages granted took into account aggravating circumstances. No further Charter damages are available for Mr. Tremblay.

[166] Charter damages are available for Ms. Mongrain relating to the breach of her privacy rights under s. 8 of the Charter arising from the unlawful search of her home.

[167] In order to obtain damages under s. 24(1) of the Charter, it is not sufficient to prove mere negligence. The plaintiff must prove an additional element such as willfulness or bad faith on the part of the defendants (Ferri v. Ontario (Attorney General), 2007 ONCA 79, 279 D.L.R. (4^th) 643, at para. 108; Hawley v. Bapoo 2007 ONCA 503, 224 O.A.C. 81, at paras. 8-9; Charlton v. St. Thomas Police Services Board 2009 CanLII 25977 (Ont. S.C.), at para 57; Wong v. Toronto Police Services Board, 2009 CanLII 66385 (Ont. S.C.), at para. 87).

[168] Ms. Mongrain has satisfied me that there was an element of wilfulness, and not simple negligence, in the manner in which the OPS obtained and executed the public safety warrant on October 16, 2006. I have already itemized all of the omissions in the ITO prepared by Sergeant Aylen, and I have found that Sergeant Aylen consciously crafted the ITO in the way he did in order to ensure that the Justice of the Peace would issue the warrant. I believe that Sergeant Aylen had a goal in mind – to “come down hard” on Mr. Tremblay and Ms. Mongrain to teach them a lesson.

[169] Ms. Mongrain is entitled to damages to compensate her for the humiliation she experienced when she arrived home to find the front door of her home breached, her children being detained in a police vehicle, and approximately a dozen police officers (some in full SWAT gear) coming and going from the home as if that home were the center of significant criminal activity in her community – all of this happening under the prying eyes of her neighbours. She is entitled to compensation for the state of disarray of the home.

[170] Sergeant Aylen stated in his evidence that the premises were left as they were found and, aside from the damage to the front door, everything was in order. I reject this evidence and prefer the evidence of Ms. Mongrain regarding the state of the house following the police search. According to Ms. Mongrain:

• some of the furniture was turned upside down in the living room;

• everything had been removed from the clothes hangers and the shelves in the walk-in closet on the ground floor;

• Mr. Tremblay’s papers and legal files in his office had been gone through;

• in the master bedroom, the mattress was in the en suite bathroom and the box spring was in the hallway going into the en suite;

• in the walk-in closet in the master bedroom, the trap door to the attic was broken, and all of the items in the closet were on the floor; and

• other rooms had been ransacked.

[171] I note that Ms. Mongrain was not cross-examined or challenged on her description of the residence following the search. I also note that the police did not take any photographs or videos of the premises following the search. Sergeant Aylen was the only police officer at the home at the time of the search who was called as a witness and was available to be cross-examined by the Plaintiffs’ counsel. His evidence was that he was unaware that any part of the house had been left disturbed. According to Ms. Mongrain, when Sergeant Aylen was leaving, he said that the Tremblay family would have a lot of cleaning up to do. Ms. Mongrain was not challenged on this evidence under cross-examination. Ms. Mongrain also recalled saying to Sergeant Aylen something to the effect: “all this for a drainage pipe”, to which Sergeant Aylen stated: “You are not dropping it, so that is what happens”. Ms. Mongrain was not challenged on this evidence. Sergeant Aylen did not recall making any such statements.

[172] Mr. Tremblay’s evidence, which I accept, is that when he got home sometime between 4:00 and 5:00 a.m., his wife and children were still cleaning up the mess left by the SWAT and search teams. Again, he was not challenged on this evidence.

[173] Ms. Mongrain is entitled to compensation for the ongoing symptoms of the trauma which she experienced on October 16-17, 2016 and with which she had to cope over the following years. The fact that she had privacy rights that deserved to be respected needs to be reinforced. And the type of behavior exhibited by the OPS in ignoring those rights needs to be deterred.

[174] More specifically, officers of the OPS need to be deterred from telling a member of the public that the person must refrain from asking questions or else risk being charged with offences, something said to Ms. Mongrain by Sergeant Aylen.

[175] Furthermore, officers of the OPS need to be deterred from bullying members of the public by saying the sort of thing Officer Ouellette said to Ms. Mongrain, in the presence of her children, to the effect that her family was the most hated in the neighbourhood and that it would be in their best interest to move. One of Officer Ouellette’s functions was to be the community liaison officer serving the Tremblay children’s school – the officer to whom the children should turn for help, if necessary. Officer Ouellette was using her status as a police officer to help her colleagues, Officers Walsh and Côté, and another professional colleague, Mr. Huppé, in their civil dispute with Mr. Tremblay and Ms. Mongrain. This amounted to an abuse of power.

[176] In the circumstances, I consider it appropriate and just to award damages against the OPS Board, for the benefit of Ms. Mongrain, in the amount of $10,000.

(c) Special Damages

(i) Damages re House

[177] Bassi Construction Ltd. supplied and installed a new front door on the Tremblay/Mongrain property at a price of $4,108.80. Mr. Tremblay is entitled to recover this sum in full.

(ii) Legal Fees

[178] Under ss. 117.05 and 117.06 of the Code, the police were obliged to bring an application before a justice of the peace for the disposition of the weapons seized from the Tremblay/Mongrain property pursuant to the public safety warrant issued under s. 117.04, failing which, those items were to be returned to Mr. Tremblay. No such application was ever brought by the police. Instead, the police simply held on to the items, unlawfully, for a period of two years. Mr. Tremblay had to retain counsel and spend $6,814.78 in legal fees and disbursements in order to obtain an order on June 13, 2008 from Fraser J. returning the seized items to his lawful possession. Mr. Tremblay is entitled to recover this amount in full.

[179] Although the method by which Mr. Tremblay was arrested and detained was unlawful, the police did have reasonable and probable grounds to charge him with mischief. Therefore, no wrong was caused to Mr. Tremblay as a result of his having to pay legal fees and disbursements for the original trial before Wake J., the summary conviction appeal before Power J., or the appeal before the Ontario Court of Appeal. No damages are awarded for these legal expenses.

(d) Punitive Damages

[180] As directed by Binnie J. in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, punitive damages are very much the exception rather than the rule. They are imposed only if there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. Punitive damages are not awarded to compensate the plaintiff, but to punish the defendant, to deter others from acting in a similar fashion, and to express the community’s denunciation of such behaviour. Punitive damages are awarded only where compensatory damages are insufficient to accomplish these objectives, and they are given in an amount that is no greater than necessary to rationally accomplish their purpose.

[181] In this case, significant damages have been awarded against Sergeant Aylen and the OPS Board in favour of Mr. Tremblay for false arrest and unlawful detention and imprisonment, negligent investigation, and wrongful search and seizure. As well, significant damages have been awarded against the OPS Board for a breach of Ms. Mongrain’s Charter rights. These damages have provided adequate compensation to Mr. Tremblay and Ms. Mongrain in the circumstances of this case.

[182] I did not find that Sergeant Aylen acted out of malice. I accepted his evidence that he believed that he had reasonable and probable cause to arrest Mr. Tremblay and to get a public safety warrant. My finding was that reasonable and probable cause for these steps did not exist on an objective basis. The disconnect between Sergeant Aylen’s belief that reasonable and probable cause existed, and what a reasonable police officer acting in his place would have believed, was likely due to a bias harboured by Sergeant Aylen against Mr. Tremblay and Ms. Mongrain. That bias informed his negligent investigation. It also coloured and skewed Sergeant Aylen’s presentation of the facts to the Justice of the Peace when he was seeking the public safety warrant. Bias was definitely involved in the actions of Officer Ouellette. The compensatory damages already ordered are at the high end of what is normally awarded for the tort claims involved here. These damages have a punishment component reflective of the aggravating circumstances in this case. They are adequate not only to deter officers from acting in as biased and high-handed fashion as they did here, but also to express society’s denunciation of such behaviour. Consequently, I make no award of punitive damages.

Disposition

[183] In summary, Sergeant Aylen, and his employer, the OPS Board, are jointly and severally liable to pay Mr. Tremblay the following sums:

• $15,000 for false arrest and wrongful detention;

• $10,000 for negligent investigation;

• $5,000 for wrongful seizure of Mr. Tremblay’s weapons and PAL;

• $4,108.80 as special damages for replacement of the broken door and doorframe;

• $6,814.78 as special damages for legal fees relating to the return of Mr. Tremblay’s weapons and PAL.

[184] The OPS is liable to pay Ms. Mongrain for a breach of her s. 8 Charter rights the sum of $10,000.

Costs

[185] The Plaintiffs shall have until January 31, 2017 to serve and file written submissions regarding costs. The Defendants shall have until February 15, 2017 to serve and file responding submissions. The parties’ submissions shall be no more than five pages exclusive of any exhibits, such as Offers to Settle. The Plaintiffs shall have until February 22, 2017 to serve and file reply submissions of no more than two pages.

Aitken J.

Released: December 31, 2016

CITATION: Tremblay v. Ottawa Police Services Board, 2016 ONSC 4185

COURT FILE NO.: 08-CV-42912

DATE: 2016/12/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD TREMBLAY and

JOHANNE MONGRAIN

Plaintiffs

And

OTTAWA POLICE SERVICES BOARD, JEFF AYLEN, MELBURN WHITE, SHAWN GRAHAM, CHRISTIAN GARDNER, MARTIN RUKAVINA, DANIEL KUNSKEN, KIRK GIDLEY, JEFF SIMPSON, KELLY RYAN, STEPHAN GILBERT, JEFF KILCOLLINS, GORDON WARD, WOODY ASPILAIRE and NELSON ROWAN

Defendants

REASONS FOR JUDGMENT

Aitken J.

Released: December 31, 2016

[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act (UK) 1982, c. 11, ss. 7, 8 and 9.

[^2]: Shawn Graham, Christian Gardner, Martin Rukavina, Daniel Kunsken, Gordon Ward, Michael Marelic, Nelson Rowan.

[^3]: After the fact, Sergeant Aylen learned that Ronald Morris was Marc Morris’s father.