CITATION: Du Carmur v. Cole, 2016 ONSC 4930

COURT FILE NO.: CV-10-407731

DATE: 20160809

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER DU CARMUR

Plaintiff

– and –

DETECTIVE CONSTABLE DOUGLAS COLE BADGE NO. 855, THE YORK REGIONAL POLICE CHIEF ARMAND P. LA BARGE, THE YORK REGIONAL POLICE SERVICE BOARD, DETECTIVE CONSTABLE DAVID LITTLE BADGE NO. 469, DETECTIVE ILIADA SPYROPOULOUS BADGE NO. 7918, (ALSO KNOWN AS DETECTIVE ILIADA LEAHY, THE TORONTO POLICE CHIEF WILLIAM BLAIR, THE TORONTO POLICE SERVICE BOARD, POLICE OFFICER JOHN DOE

Defendants

Hedy L. Epstein & Jason E. Bogle, for the Plaintiff

Kevin McGivney, Rebecca L. Bush, & Charetina Lougheed for the Defendants

HEARD: February 22, 2016

s.a.Q. akhtar j.

I. FACTUAL BACKGROUND AND ALLEGATIONS

Introduction

[1] The plaintiff, Christopher Du Carmur, brings an action against the police arising out of his arrest in July 2008 on charges relating to the trafficking of drugs. The plaintiff alleges that he was the victim of a negligent investigation in which the police targeted him and deliberately lied in order to obtain an authorization to intercept his private communications. The plaintiff further alleges that, upon his arrest, the police beat him inflicting injuries to his head and leg before transporting him to the police station leaving behind his unprotected property. After spending a year in custody, the charges were dropped. The plaintiff claims damages for his injuries, loss of income, deprivation of property and what he describes as flagrant police misconduct.

The Plaintiff’s Background

[2] The plaintiff is a 46-year-old man who was born Christopher Murray in Jamaica. He emigrated to Canada with his family in 1972. He testified that he attended Queen’s University but left because he was not attending classes. According to the plaintiff, he became involved with “the wrong group” which led him down the dark path of criminal activity. He subsequently enrolled as a student at the University of Guelph completing a course in Fundamentals of Human Communication.

[3] The plaintiff agreed that he had a criminal record but testified that his last conviction was sometime in 1999.

[4] In 1997, the plaintiff and his girlfriend, Brenda King, were charged as a result of a police investigation named Project Moustache. The plaintiff was familiar with some of the other accused charged in the investigation, including two brothers named Tasuli Mustakinovski and Billy Mustakinovski. The case, however, went nowhere. After a preliminary inquiry, the charges against the plaintiff were withdrawn in 2001. No explanation was given by the Crown for the abrupt cessation of the prosecution.

[5] The plaintiff testified that after the case had ended, he had a discussion with his lawyer, Philip Klumak, who strongly advised him to cease any further criminal activity.

[6] Taking his lawyer’s words to heart, the plaintiff described how he set about changing his life. He started a new business and got married to Ms. Liliana Cardenas. As a result of this union both parties changed their surnames to an amalgam of their previous names: Christopher Murray became Christopher Du Carmur.

[7] The plaintiff’s first business venture was a graphic design company called Portofino Limited. He subsequently created a second venture, a computer security company called Global Canada, whose specialty was to find potential breaches in enterprise security systems and correct them. According to the plaintiff, Global Canada flourished, allowing him to work from home and take payment in cash and cheques.

[8] In 2000, the plaintiff, along with three business partners, opened a restaurant, the Citrus Oyster Bar, located in the Kingsway neighbourhood in Toronto. The plaintiff assumed the role of Operations Manager overseeing Citrus Oyster and Global Canada simultaneously. Citrus Oyster, however, lasted approximately two years before it closed down.

[9] On the domestic front, the Du Carmurs built their matrimonial home at 6421 Western Skies Way in Mississauga. The 6000 square foot house was built by Alvaro Di Blasio, one of the plaintiff’s best friends. The home contained a residential gym where the plaintiff worked out every day maintaining an active life style which included cycling, playing basketball and squash, and riding a Sea-Do personal watercraft. The plaintiff’s marriage, however, would not last, and after the divorce he kept the matrimonial home as part of the settlement.

[10] When the plaintiff filed tax returns for Global Canada in the years 1999 to 2002, he admitted that he understated his earnings and reported a $40,000 per annum income when, in fact, the true figure was closer to $300,000 a year. He was later audited by Revenue Canada. At trial, the plaintiff claimed that Revenue Canada had been contacted by two of the Project Moustache investigators who had wrongly informed them that his income actually was the result of criminal activity.

[11] In 2008, the plaintiff would leave his home at 6421 Western Skies Way and move to other residences in Toronto. First, he rented a condo at Unit 119, 2121 Lakeshore Boulevard West and then moved into another leased property at 975 Kipling Avenue. However, his stay there was short lived as the property was broken into whilst he was showering. No longer wishing to stay at that address, the plaintiff settled on a two bedroom condominium apartment at Unit 614, 2121 Lakeshore Boulevard West (“2121 Lakeshore”), which was being leased by his friend, Peter Bacchus. After arranging to sublease the property from Bacchus, the plaintiff moved in on 30 July 2008 agreeing to pay $1800 per month.

[12] The move into the apartment began at 5:30 p.m. with the plaintiff transporting expensive items of furniture, crockery, paintings and jewellery into his new home. Business records, contained in boxes, were also brought in, as the plaintiff intended to continue his work from home. Finally, the apartment would gain two residents: the plaintiff had acquired a Maltese dog as a pet.

The Plaintiff’s Account of His Arrest

[13] By nightfall, the plaintiff’s move was complete and the apartment strewn with boxes. Exhausted from the day’s events, the plaintiff decided to relax before going to sleep. He poured himself a glass of wine and stood at the apartment window taking in his new surroundings. Suddenly, he noticed a stocky well-built man dressed in a black military outfit standing behind him. This intruder ordered the plaintiff to get down on the ground.

[14] The plaintiff asked the intruder to identify himself but was once again told to lay on the ground. The plaintiff attempted to explain that there was no space in which to lie down because the various boxes and furniture filled the room. The intruder appeared not to care and used force to make the plaintiff lie down. As the plaintiff did so, the intruder, without any cause, kneed the plaintiff in the temple area of his head almost knocking him out and stomped on the back of his leg in the area of his hamstring. The plaintiff asked “Was that necessary?” but was told by the intruder not to look at him.

[15] The plaintiff was handcuffed before the intruder departed and two police officers entered the premises. At this point, the plaintiff was naked except for his boxer shorts. The officers picked him up off the floor, and in doing so, his leg became caught beneath an adjacent dresser hurting his ankle. After being arrested, the plaintiff was taken to the station.

[16] As a result of the attack, the plaintiff felt an intense pain in his head which he described as being “like a pencil being pushed through my skull”. The plaintiff, racked with intense pain in his head, leg and toes (which had turned purple), was carried out of the apartment and into the police car.

The Police Account of the Plaintiff’s Arrest

[17] There were only three witnesses to the arrest of 31 July 2008: the plaintiff and the officers who apprehended him, Constable Adam Moore and Constable Bryan Rennie. The plaintiff described the initial intruder that forced him to the ground as a stocky black male. Rennie was the only officer to have contact with the plaintiff on the night of his arrest that fit this description.

[18] Perhaps unsurprisingly, the police version of events was markedly different to the plaintiff’s. Moore testified that he, not Rennie, was the first officer to enter the bedroom. After breaching the door to Unit 614, 2121 Lakeshore Boulevard, Moore entered the plaintiff’s bedroom to find him on the bed. Moore had been briefed on the presence of a gun in the apartment and ordered the plaintiff to lay the ground. When the plaintiff failed to do so, Moore physically forced him to the ground by placing his hands on him.

[19] As the plaintiff was on the ground, Moore placed his knee on his back and handcuffed him. Moore conceded that the force used to place the plaintiff on the ground may have caused bruising to both his cheek and shoulder. Moore testified that he was followed into the room by Rennie who might have assisted in the handcuffing.

[20] Rennie testified that he followed Moore into the bedroom and saw him order the plaintiff to the ground, asking to see his hands. The plaintiff was, at this stage, on the bed and Rennie saw Moore force the plaintiff onto the floor. Rennie could not remember who handcuffed the plaintiff but insisted that he had no contact with him. Rennie, however, was cross-examined on the footing that he was the officer who had used force on the plaintiff.

[21] Moore and Rennie denied any physical contact with the plaintiff other than what was necessary to place him on the floor and restrain him. Both officers insisted that neither of them had stomped anywhere on the plaintiff’s body. They also maintained that no one had pulled a t-shirt over the plaintiff’s head to stop him from identifying those arresting him.

Events After the Arrest

[22] The plaintiff was taken to the police station and examined by the authorities. There he discovered that he was being charged and prosecuted with a number of drug and gang related offences. His arrest was based upon a number of intercepted communications obtained pursuant to a judicial authorization.

[23] The plaintiff remained in custody at the Toronto West Detention Centre (WDC) and Don Jail for over a year, during which he was committed to stand trial, after a preliminary inquiry, on a single count of Conspiring to Commit an Indictable Offence. However, the trial would never take place. On 26 September 2010, over two years after the plaintiff’s arrest, the Crown stayed the prosecution against him.

The Plaintiff’s Claim Against the Police

[24] The plaintiff claims damages alleging a plethora of police malpractice under the following headings:

1. Assault and Battery

2. Misfeasance of Public Office

3. Negligent Investigation

4. Deceit/Negligent Misrepresentation

5. Negligent Supervision

6. Conversion of Property

[25] The crux of the action is that the police had no basis upon which to apply for an authorization permitting interception of the plaintiff’s private communications, an investigative measure that led to his arrest and charges.

[26] The plaintiff attacks two separate authorizations originating from two separate investigations: Project Betrayal and Project Cabra. Wiretaps obtained under the Betrayal authorization were used by officers in the Cabra investigation to obtain a second authorization yielding additional intercepted communications. Those communications led to the police application for a warrant to enter the plaintiff’s home at 2121 Lakeshore and arrest him.

[27] The plaintiff contends there was no reason for the police to “target” him in their investigations and, by doing so, they breached their duty of care by not properly investigating the facts deposed to in their Information to Obtain (ITO) the authorization and by deliberately misleading the authorizing judges.

[28] The accumulation of police impropriety, argues the plaintiff, resulted in a violent arrest in which officers committed an unlawful assault causing serious life threatening injury, loss of past and future income, and the disappearance of the plaintiff’s personal belongings left in his apartment after the arrest.

II. LEGAL PRINCIPLES

The Duty of Care Owed by an Investigating Police Officer

[29] In Hill v. Hamilton Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, the Supreme Court of Canada recognised the prima facie duty of care existing between the police and a suspect under investigation. The court set out the parameters defining the standard of care as being that of the reasonable police officer in like circumstances. The court noted the importance of flexibility in the investigative decision making process. McLachlin C.J., writing for the majority, noted at para. 73:

This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. 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.

[30] When laying charges, “the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them”: Hill, at para. 68.

Causation

[31] The plaintiff bears the burden of showing that police negligence caused the harm complained of at law. Negligent investigation, as with other torts, is subject to the “but-for” test as explained by McLachlin C.J., in Hill, at para 92:

The police must be allowed to investigate and apprehend suspects and should not be penalized for doing so under the tort of negligent investigation unless the treatment imposed on a suspect results from a negligent investigation and causes compensable damage that would not have occurred but for the police's negligent conduct. The claimant bears the burden of proving that the consequences of the police conduct relied upon as damages are wrongful in this sense if they are to recover.

[32] The damages claimed by the plaintiff in this case all derive from the plaintiff’s arrest and laying of charges by the police. These events, in turn, were the consequence of wiretap evidence obtained by the judicial authorization granted in Project Cabra without which there would have been no grounds to arrest the plaintiff.

[33] Accordingly, any individual act of negligence by the police becomes irrelevant if the Cabra authorization was properly issued, as the wiretap evidence obtained from the Cabra warrant gave rise to the arrest of the plaintiff. If the Cabra warrant was properly issued, the police had reasonable and probable grounds to arrest the plaintiff and lay charges. The existence of reasonable and probable grounds is fatal to the plaintiff’s claim for negligent investigation: Kellman v. Iverson, 2012 ONSC 3244, at para. 23.

[34] As a result, the claims of negligence, deceit and misfeasance turn upon the validity of the Cabra authorization. Both parties agree that the authorization must be reviewed using the test set out in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.), the seminal case dealing with the validity of a wiretap warrant in the context of s. 8 of the Charter of Rights and Freedoms. The upshot is that a finding upholding the Cabra authorization, which was signed by Beaulieu J. on 2 June 2008, defeats the plaintiff’s claim for damages.

[35] I must add, however, that a finding that the Cabra authorization could not have issued does not, on its own, result in a successful claim of negligence. Even if I find the authorization to be invalid, I must still consider the individual impugned acts to decide if they constitute negligence within the meaning of the Hill test. As the court in Hill notes, a suspect is not entitled to a perfect investigation and it is to be expected that the police will make errors as part of the evidence gathering process. It is only if the plaintiff proves that those errors fall outside the scope of reasonableness as identified in Hill that he succeeds.

III. THE AUTHORIZATIONS

Introduction

[36] I deal first with the plaintiff’s allegations regarding Misfeasance of Public Office, Negligent Investigation, Deceit/Negligent Misrepresentation and Negligent Supervision, all of which concern the judicial authorizations obtained by Detectives Cole and Little in their respective investigative projects.

Project Betrayal

[37] Project Betrayal was a York Regional Police (YRPS) investigation into a group of individuals suspected of violent crimes including robbery, kidnapping, attempted robbery, aggravated assault and drug trafficking offences (“the listed offences”). The plaintiff was named as a known individual believed to be responsible or have knowledge of the listed offences.

[38] Four incidents formed the centrepiece of investigation: a kidnapping and three robberies. The victims were suspected drug traffickers who were known to carry large amounts of cash or drugs. Each incident involved the arrangement of an illicit drug transaction with the victim, who, on the date of the proposed transaction, would be abducted or robbed. The cell phones used in the commission of the offences were known to be disposable and the vehicles involved had been discarded.

[39] Due to the unlawful nature of the activities, the victims would be reluctant to report the crimes for fear of arrest or retaliation by the perpetrators.

[40] As part of the investigation, YRPS sought an authorisation to intercept private communications of the individual suspects. Detective Douglas Cole was the affiant in the Information to Obtain (“the Betrayal ITO”) required by s. 185(1) of the Criminal Code, R.S.C. 1985, c. C-46, in support for the application for authorization.

• Cole outlined the four incidents under investigation as:

• The kidnapping of Jeffrey Chan on 31 October 2006;

• The attempted robbery of Eric Li during the week of 13 September 2007;

• The robbery of three individuals at the Hilton Garden Inn in Richmond Hill on 22 September 2007;

• The attempted robbery of Nick Pappas in Niagara Falls on 10 October 2007.

[41] Cole also identified eleven individuals that the police felt were responsible or had knowledge of the offences as being: Tasuli Mustakinovski, Bobby Manchev, Jimmy Karras, James Biliouras, Amir Mehrani, John Dimovski, Shahid Chaudhary, Hussein Jammoul, Sao Khounlivong, Eric Li and the plaintiff, named as Christopher Murray in the affidavit.

[42] In outlining the grounds for seeking an authorization, Cole relied upon Project Moustache, a prior investigation commenced in October 1997 focusing on a series of commercial break and enters and thefts of expensive vehicles. That project included many of the same suspects including Tasuli Mustakinovski, Bobby Manchev, Jimmy Karras and the plaintiff. The Betrayal ITO specified that the plaintiff was convicted of the offences of Theft Over $5000, Possession of Burglary Tools; Uttering Forged Documents and Failing to Comply with a Recognizance, all of which arose out of the Project.

[43] Cole set out his grounds for naming the plaintiff as a known person whose communications were likely to afford evidence of the listed offences in paragraphs 431 to 437 of the Betrayal ITO. Amongst those grounds was the plaintiff’s lengthy criminal record for property-related offences.

[44] Much of the initial information, however had come from informants. An anonymous source and a confidential informant (CI#1) had provided information linking the plaintiff to the Chan kidnapping. Another informant (CI#4), supported by mobile phone records, had informed the police that the plaintiff was involved in a failed drug deal on 20 September 2007. A third CI (CI#2) had given information leading Cole to believe that the plaintiff was involved in the attempted abduction of Eric Li.

[45] Mobile phone records along with surveillance (observing the plaintiff’s car in Mustakinovski’s driveway) demonstrated the plaintiff’s long-term association with Mustakinovski, Dimovski and Manchev.

[46] As a result, Cole made clear his belief that interception of the plaintiff’s private communications would yield evidence relating to the listed offences.

[47] The Betrayal ITO was placed before Minden J., who signed an authorization on 13 February 2008. A further extension of the authorization was obtained on 10 April 2008.

[48] As a result of the warrants, the police recorded a substantial number of conversations between the plaintiff and others. The investigation of Project Betrayal ended in early June 2008 and, although some of the known persons listed in the Betrayal ITO were charged at its conclusion, the plaintiff was not.

[49] Many of these intercepts would be used by the police to support an application for a second authorization in another investigation: Project Cabra.

Project Cabra

[50] Project Cabra came to life as an investigation of the distribution of controlled substances in the Greater Toronto Area. Substantial amounts of narcotics including cocaine, ketamine, heroin and ecstasy mixed with methamphetamine were being transported and sold across the city by a gang of drug dealers. Anonymous sources provided the police with information about vehicles and phone numbers utilised during the sale and transport of the drugs. Drawing on this information, the police began to identify the leaders of the gang and their method of organisation and eventually applied for a wiretap authorization.

[51] Somewhat ironically, bearing in mind the plaintiff’s emphasis on the importance of the Betrayal intercepts on the course of the Cabra prosecution, the plaintiff had come to the attention of the Toronto Police (TPS) well before they became aware of Project Betrayal.

[52] The Cabra ITO named the following as “Principal Known Persons”: Antonio Villaci, Jea-Won Joo, Kenny Tran, Boun Yong Ho, Andy Nguyen, Marvin Mark, Dennis Mai, James Paun, Hussein Jammoul, Pasquela Reda and the plaintiff.

[53] The listed offences were described as follows:

• Importing a controlled substance into Canada

• Trafficking a controlled substance

• Possession of controlled substance

• Possession of Property Obtained by Crime

• Launder the proceeds of a drug offence

• Robbery

• Attempt to counsel any of these offences

• Counselling to commit these offences

• Conspiring to commit these offences

[54] In his affidavit in support of the IPO, Detective Constable David Little relied upon intercepted communications obtained as a result of the authorization obtained in Project Betrayal. Several of those communications recorded the plaintiff discussing drug transactions with other “knowns” such as Jammoul and Nguyen.

[55] One example is a call made on 14 March 2008 recording the plaintiff attempting to negotiate a price for the sale of drugs with a third party and discussing the sale value of cocaine with Nguyen. The plaintiff becomes upset with Nguyen for not giving him better terms and also complains that he was not offered a greater amount of the drug. Nguyen responds by telling him that the cocaine is not yet in his possession. Other Betrayal wiretaps indicated that the plaintiff and Nguyen were “holding” Jammoul until an unpaid drug debt was paid. A further call on 31 March 2008 recorded the plaintiff placing an outgoing call from his mobile phone speaking to a man named Fernando and, in turn, passing the phone to Reda, who discussed the sale of four kilos of ketamine with Fernando.

[56] Little outlined the various procedures previously undertaken by the police, including surveillance. He explained that the use of undercover officers was not viable as there was little opportunity to introduce an “insider” to the drug trafficking group and, even if that were possible, the officer’s safety would not be guaranteed. Obtaining and using search warrants would also be of little assistance as their execution would alert the suspects of the ongoing investigation. Little did reveal, however, that covert General Warrants and Dial Number Recorder Warrants had been obtained on 25 March 2008.

[57] On 2 June 2008, Beaulieu J. signed the Cabra authorization permitting the police to begin intercepting the communications of the persons named in the ITO.

The Principles of Review

[58] The plaintiff submits that the police either exaggerated or fabricated parts of the ITO when describing his activities. He also contends that the police deliberately failed to follow the correct process when creating the Betrayal and Cabra ITOs. This failure to follow protocol, by itself, would cause the invalidity of both authorizations. Additionally, the plaintiff argues that the interdependence of the ITOs means that if the Betrayal authorization could not have issued then the resulting wiretap evidence was obtained in a manner that breached his section 8 Charter rights. Accordingly, it was not available for use in the Cabra ITO: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263. That being the case, the corollary is that the Cabra authorization must also be declared invalid.

[59] Before addressing these complaints it is necessary to review the jurisprudence guiding trial judges in reviewing a judicial authorization to intercept private communications.

The Statutory Conditions

[60] Section 186(1) of the Criminal Code provides the statutory foundation for an authorization and reads as follows:

186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[61] In R. v. Beauchamp, 2015 ONCA 260, the Court of Appeal for Ontario described “the best interests of the administration of justice” as including the requirement of probable cause. The court observed, at para. 92:

[62] Thus, an essential constituent of the probable cause requirement is a reasonably grounded belief that a listed offence has been or is being committed. This does not require establishing a prima facie case, much less proving beyond a reasonable doubt, or even on a balance of probabilities, that an offence has been committed [Citations omitted]

[63] In seeking to obtain a warrant, an officer must apply by providing an affidavit that conforms with the requirements of s. 185(1) of the Criminal Code to specify information including:

(c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence,

(d) the type of private communication proposed to be intercepted,

(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

(f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,

(g) the period for which the authorization is requested, and

(h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

The Jurisprudence

[64] In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, the Supreme Court of Canada consolidated a number of previous common law principles to simplify the procedure to challenge a judicial authorization under section 8 of the Charter of Rights and Freedoms. In reviewing an authorization, the reviewing judge does not conduct a de novo hearing of the validity of the authorization but considers the record that was before the authorizing judge and decides whether the record, amplified on review, discloses sufficient evidence that might reasonably be believed on the basis of which the judge could have issued authorization: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[65] The starting point in reviewing an authorization is that it is presumptively valid and the onus lies on the plaintiff to establish invalidity: R. v. Sadikov, 2014 ONCA 72, at para. 83. It is only if the reviewing judge concludes that, on the material before the authorising judge, as amplified by the evidence on the review, there was no basis upon which the authorising judge could be satisfied that the conditions for granting the authorisations existed, that the authorisation would be held to be invalid: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, sub. nom. R. v. Pires, at para. 8.

[66] In conducting a Garofoli application, a judge is not deciding whether allegations outlined in the ITO are actually true but whether the affiant had a “a reasonable belief in the existence of the requisite statutory grounds”: Lising, at paras. 30 and 41. The existence of errors within the ITO is not sufficient, of itself, to constitute an invalid authorisation or breach of the Charter – any errors found within the ITO are excised. The reviewing judge applies the Araujo test to ascertain whether, after the excisions, sufficient material remains to justify the issue of the authorisation.

[67] Applying these principles to the case at bar, even if the Betrayal intercepts were found to have been obtained in an unlawful manner, they would simply be excised from the Cabra ITO and this court would determine on the remaining material, as amplified, whether the authorisation could have issued.

[68] It should also be noted that not every error is excised. In World Bank Group v. Wallace, 2016 SCC 15, at para. 119, the Supreme Court of Canada set out the proper approach in the following way:

A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true – a matter to be decided at trial – but rather whether the affiant had "a reasonable belief in the existence of the requisite statutory grounds" (Pires, at para. 41). What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn. As this Court stated in Pires, albeit in the context of an application to cross-examine the affiant:

... cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. [para. 41]

[69] The court added that “an error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it […]. Testing the affidavit against the ultimate truth rather than the affiant's reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent”: World Bank, at para. 122.

[70] Thus only errors that an affiant knew or ought to have known of are to be excised from the affidavit.

[71] There are two routes of attack normally taken in challenging an authorization. The first is commonly referred to as “the facial attack” which argues that, on its face, the ITO was insufficient to make out the statutory conditions. In this type of challenge, the statements in the ITO are accepted as accurate and the court asks whether, on its terms, the warrant authorised the search and whether the authorizing judge could have issued the warrant based on the contents of the ITO. Here, the record is fixed and cannot be enlarged.

[72] The second route, “the subfacial attack”, goes behind the form of the ITO and argues that the underlying facts did not actually reflect what the affiant knew or ought to have known. In this type of challenge, the ITO can be amplified so that any errors can be explained by the affiant. The task of the reviewing judge, however, remains the same: to decide whether, on the amplified record, the authorizing judge could have issued the warrant. The reviewing judge must consider whether the post-excision reliable information contained in the amplified ITO is sufficient to provide a basis on which the warrant could have issued: Araujo, at para. 52.

The Review of the Betrayal Authorization

[73] Counsel for the plaintiff, Mr. Bogle, did not dispute the grounds for seeking the ITO on the basis that the police had no reasonable grounds for believing the offences had occurred. Nor did he challenge the fact that police had reasonable grounds for believing that the other known persons named in the ITO had some involvement in the listed offences. Mr. Bogle focused on the lack of any evidentiary basis to seek the interception of the plaintiff’s calls. The disputed areas can be grouped into the following sub-headings:

(a) The Lack of Evidence of the Plaintiff’s Culpability

[74] The plaintiff became a “known” person when (1) his identity was known to the police and (2) they had reasonable and probable grounds to be believe interception of his private communications may assist in the investigation of the offence. At that point, it was incumbent upon the police to name him in the ITO: R. v. Chesson, 1988 CanLII 54 (SCC), [1988] 2 S.C.R. 148; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384 ; R. v. Pope, 1998 ABCA 267, 129 C.C.C. (3d) 59.

[75] The threshold for naming a person as “known” is a modest one. It was not necessary for either of the affiants in this case to know precisely how the plaintiff’s intercepted communications might assist in the investigation, but merely consider that they may assist in the investigation: R. v. Schreinert (2002), 2002 CanLII 44932 (ON CA), 165 C.C.C. (3d) 295 (Ont. C.A.) at paras. 43-45.

[76] This leads me to the approach taken by the plaintiff’s counsel in seeking to have the warrant set aside and expose the police’s negligence. Large segments of Mr. Bogle’s cross-examination of Detective Cole centred on the dearth of evidence implicating the plaintiff in any of the listed offences. In my view, this approach and its resultant argument is misconceived.

[77] In R. v. Nugent (2005), 2005 CanLII 790 (ON CA), 193 C.C.C. (3d) 191 (Ont. C.A.), at para. 8, Doherty J.A. made the following comments:

The trial judge erred in holding that the police were required to have probable grounds implicating Nugent in the criminal activity before he could be properly named as a target in the authorization. As this court said in R. v. Schreinert (2002), 2002 CanLII 44932 (ON CA), 165 C.C.C. (3d) 295 at 308:

The threshold for naming a party as a "known" party is a low one. Police need not have reasonable and probable grounds to believe that the party is involved in the commission of an offence. Rather, it is sufficient if police know the identity of the party and have reasonable and probable grounds to believe that interception of that party's communications may assist in the investigation of an offence.

[78] See also: R. v. Beauchamp, 2015 ONCA 260, at para. 105; R. v. Riley, 2009 CanLII 7177 (ON SC), [2009] O.J. No. 738, at para. 214.

[79] Thus, there was no requirement to demonstrate the plaintiff’s direct involvement in the listed offences. All that was necessary was that the police show that they had reasonable and probable grounds to believe that the interception of the plaintiff’s communications may assist in the investigation of the offences.

[80] In the circumstances of this case, it was the plaintiff’s association with the rest of the named parties that made him a valuable target in assisting with the investigation. Cole’s affidavit properly set out the reasons he believed that intercepting his communications would lead to evidence being produced.

(b) The Lack of Corroboration

[81] The plaintiff submits that the information received from the confidential informant’s case was never corroborated, particularly in light of the lack of information available in the affidavit regarding the informant’s past reliability. I disagree.

[82] Cole relied on information from one anonymous source - who named the plaintiff as being involved in the Chan kidnapping - and three additional confidential informants. CI#1 informed the police of the plan hatched by Mustakinovski, Karras and Manchev to rob or abduct individuals with the goal of being paid a ransom. CI#1 was unaware of one of Karras’ associates but described him as a black male who was “big and muscular”. CI#2 also reported a black male of a similar appearance when describing Eric Li’s attempted kidnapping by Mustakinovski. Cole testified that mobile phone records showed Mustakinovski, Manchev, Dimovski and Mehrani’s phones being used at and around the time and area of the attempted kidnapping thereby corroborating CI#2’s assertions.

[83] Moreover, CI#4 also described a fraudulent drug transaction occurring in September 2007 which involved a male known only as “Chris” along with Jamoul, Mustakinovski and Manchev. CI#4 described “Chris” as being a black male, approximately 30 years of age, and driving a silver Audi car with the licence plate AWVE588. This car was later confirmed to be leased to the plaintiff. CI#4 gave this person’s mobile number as being 416 823 8697. On 11 September 2007, when reporting a break in at his home at 975 Kipling Avenue, the plaintiff gave this number to the police as his mobile number. When shown a photograph of the plaintiff, CI#4 identified him as “Chris”. CI#4’s information was supported by mobile phone records revealing Mustakinovski and Manchev in the vicinity of the fraudulent drug transaction at approximately the same time that the alleged transaction took place. Significantly, both of their phones made calls to the plaintiff in and around the same time, although Cole specified that the plaintiff was not in the location at that time.

[84] Finally, the mobile phone records obtained by Cole confirmed that the plaintiff knew most if not all of the other principal “knowns” listed in the ITO. At paragraph 301 of his affidavit, Cole provided a chart identifying the plaintiff’s most frequently called numbers between 1 August and 7 October 2007 revealing numerous calls to Mustakinovski, Dimovski, Manchev and Jammoul.

[85] Whilst I cannot quibble with the plaintiff’s argument that in assessing the quality of a confidential informant’s information, the three prong test in R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) - compelling, credible and corroboration - applies, that test is a single test and not three separate ones. As Wilson J. said in Debot, at para. 60:

I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[86] In this case, the informants provided sufficiently detailed information which would pass the “compelling” threshold. Although there was no evidence before me regarding the informants’ credibility, e.g. past reliability, motivations or criminal record, that is not fatal: R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 CCC (3d) 119 (Ont. C.A.); R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at para. 37. In this case, the corroboration described in previous paragraphs was strong enough to provide confirmatory evidence of the CI information for the purposes of the ITO.

[87] I should also add that even if I found otherwise, I would still not consider Cole to be negligent in placing this material in the Betrayal ITO. There were reasonable grounds to believe the CI information provided fertile ground for obtaining the warrant and Cole took reasonable steps to verify its authenticity.

(c) The Erroneous Use of the Plaintiff’s Name

[88] Mr. Bogle cites as a “serious concern” Cole’s summary of the information given by CI#2 and reminds this court of the affiant’s duty of full, fair and frank disclosure. Mr. Bogle argues that Cole failed in his duties in this regard.

[89] Paragraph 432 of the ITO indicated that CI#2 had named the plaintiff as being involved in the attempted abduction of Eric Li. This was an error as made clear by paragraph 89 of the ITO which showed that CI#2 had actually reported that “an unknown black male” was involved. Mr. Bogle pointed to this flaw as evidence that Cole was deliberately seeking to mislead the authorizing judge.

[90] When questioned on the issue at trial Cole amplified this evidence, as he was entitled to do under Araujo, by testifying that he should have used the word “believed” in paragraph 432 to signify that it was his subjective conclusion that the plaintiff was the black male referred to by CI#2.

[91] I reject Mr. Bogle’s characterisation of Cole’s error as an attempt to mislead the authorizing judge. The ITO must be read as a whole and not in a piecemeal fashion: R. v. Sadikov, 2014 ONCA 72, at para. 87; R. v. Prosser, 2016 ONCA 467, at para. 16; Riley, at para. 119. I am also cognisant of the observations made by Molloy J. in R. v. Alvarez, 2009 CanLII 48828 (ON SC), [2009] O.J. No. 3825 (S.C.J.), at para. 20, that in warrant cases which involve a significant number of named targets, there will invariably be errors in the ITO but “a standard of perfection is not required.”

[92] The authorizing judge would have read the whole ITO before deciding to grant the authorization. In other words, Minden J. would have read the detailed outline summarised at paragraph 89 alongside the summary contained in paragraph 432. It is to be assumed that he would have been fully aware of the correct information provided by CI#2 and realised that CI#2 had not actually named the plaintiff.

[93] I also accept Cole’s evidence that paragraph 432 was simply a summary containing his own conclusions formed from inferences flowing from the material provided by CI#2. The plaintiff’s argument would be on firmer ground if paragraph 432 existed in isolation. From my reading of the ITO, however, it is clear that Cole intended to draw the authorizing judge’s attention to the lack of identification of the plaintiff by CI#2 and the corresponding footnote disclosing Cole’s belief that the black male was the plaintiff. Accordingly, I reject any notion that Cole was trying to mislead Minden J.

[94] I would also add that even if I had taken the view that Cole was deliberately seeking to deceive Minden J., the inaccurate information would simply be excised from consideration when determining if the authorization could have issued.

[95] Finally, I also take into account the other potentially exculpatory evidence provided by Cole - for example, his concession that analysis of the plaintiff’s mobile phone record on the date of the offences did not demonstrate the plaintiff’s presence in the area of the crimes - as evidence of his good faith on this issue.

(d) The Erroneous Information Relating to Project Moustache

[96] The ITO contained another potential error relating to the plaintiff’s involvement with Project Moustache: Cole indicated that the plaintiff had been convicted of some of the Project Moustache offences including Theft Over $5000, Possession of Burglary tools and Uttering Forged Documents, and received a 12-month prison sentence. Cole testified that he received this information from Detective MacIntyre, one of the Project Moustache officers.

[97] It is unclear from the evidence whether the information was accurate or mistaken. Assuming the information to be incorrect, I find it to be of little moment. As per Araujo, it is to be excised from the ITO and therefore removed from consideration. The plaintiff’s conviction of offences which were the subject of Project Moustache is immaterial. The real relevance of the references to Project Moustache in the ITO was to show the long standing relationship between the plaintiff and the principal players in Project Betrayal and, by extension, the way in which intercepting the plaintiff’s communications would provide evidence to assist in the Project Betrayal investigation.

[98] Finally, I accept Cole’s evidence that he was given the erroneous information by MacIntyre and was entitled to rely upon it in good faith absent any indication that MacIntyre was misleading him: World Bank, at para. 123.

Investigative Necessity

[99] The second pre-condition required by s. 186(1)(b) of the Criminal Code is that the police satisfy the authorizing justice of investigative necessity. In Beauchamp, this was described as being met in any one or more of three ways:

a) trial and failure of other investigative procedures;

b) unlikelihood of success of other investigative procedures; or

c) urgency and corresponding impracticality of other investigative procedures.

[100] There was no serious challenge to the investigative necessity outlined by both Cole and Little in their respective affidavits. Even if there had been, I would hold that the requirement was met. Nothing in the evidence indicated that either Little or Cole’s grounds contained an error or was an attempt to mislead the authorizing judge.

[101] Cole outlined previous investigative procedures used which had met with little or no success. Most of the information from the informants came after the event and none of the informants were willing to provide testimony at trial due to their fear of retribution. Undercover officers could not be used because of the lack of trust that would exist for a “newcomer” if introduced to the group and safety concerns. CrimeStopper tips had yielded no evidence that could be used in criminal proceedings. Similarly, no useful evidence had been obtained from the several search warrants and dialled number recorder warrants that had been executed. Surveillance could only show the movements and contacts between the groups and not the content of their conversation. The victims of the offences refused co-operation with the police because doing so would expose their own unlawful activities.

[102] In short, there were compelling reasons to believe that no other reasonable alternative method of investigation to intercepted communications existed or would be likely to succeed: Araujo, at para. 29; R. v. Mahal, 2012 ONCA 673, at para. 41.

Conclusion on the Betrayal Warrant

[103] Having reviewed the ITO and heard the evidence of Detective Cole, I am of the view that there was a sufficient basis for the authorizing judge to conclude that intercepting the communications of the named known parties listed could and would afford evidence that would assist the investigation into the listed offences.

[104] An abundance of evidence exists with respect to the offences listed in the ITO to support a belief that the listed persons were involved. Even after the excision of errors, there is no doubt that the plaintiff was closely connected to Mustakinovski, Manchev, Karras, Dimovski and Jammoul. The evidence of the CIs in this case placed the plaintiff in the circle of suspects involved in the offences and mobile phone records indicated the plaintiff was one of the participants in conversations taking place in and around the time of the offences.

[105] Having found the authorization to be valid, the plaintiff’s action against Detective Cole fails. Even if Cole had been negligent in the manner alleged by the plaintiff, there is no causal link between his negligence and the plaintiff’s damages. However, for the reasons set out previously, I find the plaintiff’s allegations of Cole’s negligence to be unfounded.

[106] There was no evidence that Cole misled Minden J. or ignored evidence or acted in any manner other than as a competent professional police officer. The plaintiff’s assertions that Cole ignored the plaintiff’s “electronic alibi” - the fact that his mobile phone never placed the plaintiff in the actual locations of the offences - itself ignores the reality that the plaintiff need not actually be in the location of the offences to be a party.

[107] With respect to the plaintiff’s argument that Cole failed to disclose any exonerating evidence showing the plaintiff was not involved in criminal activity, I repeat that there was no need for the police to establish that the plaintiff was actually a party to the offences.

[108] My final comments on Cole are that, as a witness, he provided his evidence in a straight forward, truthful manner. He did not attempt to conceal some of the failings of the ITO nor did he overstate the plaintiff’s role in Project Betrayal.

[109] I find that the plaintiff’s Charter rights were not breached and that the plaintiff has failed to prove that Cole breached his duty of care as an investigative officer. As a result, I dismiss the plaintiff’s claims of negligence, misrepresentation and tort of misfeasance against Detective Cole and the YRPS.

The Review of the Cabra Authorization

[110] In light of my findings that the Betrayal authorization was validly issued, it follows that the evidence obtained as a result was also properly available for use in the Cabra ITO.

[111] The plaintiff, however, mounts an additional argument against its use. He alleges that Little was negligent in relying upon the summaries of the Betrayal wiretaps “without any due diligence”. Moreover, he alleges that the intercepted communications obtained through the Betrayal authorization were prohibited from use in obtaining the Cabra authorization. Without this negligence, argues the plaintiff, the Cabra authorization could not have issued and the plaintiff’s subsequent arrest, charges and damages would never have occurred.

[112] Once again, for the sake of convenience I group the complaints into the following headings.

(a) The Reliance on the Betrayal Summaries

[113] The Toronto Police were contacted by YRPS after it became known that TPS were investigating the plaintiff’s activities. The overlap of known persons between the two projects made it natural to share resources and information. As a result, the TPS and Det. Little obtained summaries of the intercepted communications that were the fruits of the Betrayal authorization.

[114] Little reviewed the summaries without listening to the actual calls and used them as proof of the plaintiff’s drug dealing activities. Little relied on his interpretation of the summaries in outlining his grounds but also made clear that the content was open to interpretation. There was nothing wrong with this approach. In an application of this nature, it is to be expected that an affiant provides a subjective view of the evidence to establish his or her reasonable belief that wiretapping would yield evidence of assistance to their investigation. Nonetheless, the calls were played in court during the plaintiff’s cross-examination and, if anything, were far more incriminating than the summaries. Accordingly, I find nothing misleading in the way in which the summaries were used or presented.

[115] Mr Bogle, however, spent a significant amount of time cross-examining on Little’s failure to ensure that the Betrayal intercepts had been obtained in strict compliance with the terms of the Betrayal warrant. In his written submissions, Mr. Bogle argued that “the evidence of Detective Little reflects a callous disregard to his duties and assumes that all officers to be believed at their word despite his undertaking as an affiant.” Additionally, it was suggested that Little “knew or ought to have known that it was unlawful to rely upon summaries based on their usefulness to his investigation, as opposed to taking any steps to verify their lawful foundation.” Little and Detective Zeleny, another officer involved in the investigation, were also questioned on their failure to confirm that the Betrayal intercepts were obtained with live monitoring and/or visual surveillance.

[116] In dealing with this argument, I note the plaintiff produced no authority to suggest that it is a rule of law that every time intercepts obtained in a separate investigation are used, the affiant is under an obligation to verify their lawfulness. I am not surprised by the plaintiff’s failure to do so as the law is to the contrary.

[117] In the World Bank Group case, Moldaver and Coté JJ., at para. 123, explained the obligations of an affiant when receiving information from other officers in the following way:

When assessing a subfacial challenge, it is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, they do not need to conduct their own investigation (R. v. Ahmed, 2012 ONSC 4893, [2012] O.J. No. 6643 (QL), at para. 47; see also Pires, at para. 41). [Emphasis added]

[118] In my view, this is a complete answer to the plaintiff’s argument. There was no evidence before me to suggest anything was “amiss” in the Betrayal warrant or its execution. I would add that imposing a condition that an affiant investigate each piece of information given to him by another investigating officer runs counter to common sense. In the circumstances of this case, it is hard to understand what further steps Little was to take in establishing the “lawful foundation” of the summaries. Was he to conduct a Garofoli style review of the Betrayal authorization? Was he to interview Detective Cole to ensure that he had been truthful as an affiant? I repeat my earlier observation that a judicially authorised wiretap warrant is presumptively valid and Little was entitled to treat it as such.

[119] Nor was there any evidence to suggest that the Betrayal warrant had been executed in violation of its terms and conditions. Detective Zeleny testified that when he visited the YRPS wire room he did not recall civilian monitors being absent although he also added that he could not be sure. Zeleny did, however, see surveillance taking place. Additionally, he told the court that he had no concerns about the transcripts made by the civilian monitors.

[120] Mr. Bogle drew this court’s attention to the appearance of a number belonging to a civilian monitor within a transcript of a call arguing that it showed that the call was being live monitored. Pointing to the absence of monitor numbers from intercepts relied upon by Little, Mr. Bogle forcefully advanced the position that these calls could not have been the subject of live monitoring. I cannot agree. There is no evidence before me to suggest that (a) transcripts or summaries of the intercepted calls that are devoid of numbers demonstrate a lack of live monitoring or (b) that live monitoring only took place on conversations whose transcripts displayed a monitor’s number.

[121] Counsel for the plaintiff referred me to R. v. Caines, 2011 ABQB 692, a case from the Court of Queen’s Bench for Alberta which detailed instances where live monitoring conditions had been ignored in regions of Ontario. In those cases, the Royal Canadian Mounted Police had implemented a “put away” policy where calls that were required to be live-monitored were listened to only at the outset to determine whether the speaker was a target. Once that was determined, the monitor would stop listening to the call which would continue to be recorded.

[122] Relying on Caines, Mr. Bogle asked me to take judicial notice of the fact that the absence of live monitoring was prevalent in the YPRS region at the time the Betrayal wiretapping was taking place. If that were the case, it would mean that there had been a breach of the terms set out in the Betrayal authorization which would result in the wiretap recordings being unlawfully obtained.

[123] I am not prepared to accede to this request. I cannot say with any certainty that the difficulty which arose in Caines, an RCMP investigation, was also present during the Betrayal monitoring. Significantly, in the Caines case, the trial judge was presented with a wealth of evidence, including a concession by the Crown, that the “put away” method had been used.

[124] In the case at bar, there was no such concession or evidence. It goes without saying that the plaintiff bears the burden of proving his allegations. By advancing the position that the police ignored the requirement of live monitoring, it was open to - or perhaps even incumbent upon - him to call evidence to substantiate that claim. He chose not to do so. Accordingly, I reject the plaintiff’s argument that the Betrayal authorization was subject to procedural deficiencies or that Little was under an obligation to verify procedural compliance.

[125] For the reasons set out above, I find that Little was entitled to rely on the summaries obtained as part of the Betrayal investigation.

(b) Sharing the Betrayal Intercepts

[126] Mr. Bogle also appeared to take issue with YPRS’s sharing of the Betrayal wiretaps with the TPS and submits that those wiretaps were prohibited from use in the Cabra ITO. I disagree.

[127] Section 193(1) of the Criminal Code reads as follows:

193 (1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully

(a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or

(b) discloses the existence thereof,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

[128] The exemptions to this prohibition are contained in subsection (2) and are set out below:

(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication

(a) in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath;

(b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted; […]

[129] It is clear that s. 193(2)(b) permits the sharing of intercepts between police “for the purpose of any criminal investigation”. The courts have accepted the sharing of information obtained through a valid warrant even across national borders: United States of America v. Wakeling, 2014 SCC 72, [2014] 3 S.C.R. 549, at paras. 92-93.

[130] Mr. Bogle concedes that s.193(2)(b) permits the disclosure of wiretaps to another investigation but argues that the subsection does not go as far as allowing their use in that investigation. This argument makes little sense. Nothing in the section forecloses the use of wiretaps obtained in another investigation nor am I aware of any case law to that effect. It would create an absurdity if officers who were in possession of wiretap evidence (which gave them grounds to seek a warrant) were forbidden to use that evidence simply because it had been obtained in a separate investigation.

[131] A review of the ITO as a whole reveals that Little had a legitimate basis for believing that the interception of communications of the named targets would provide evidence that would assist in the investigation of Project Cabra. The intercepted calls relied upon in the Cabra ITO demonstrated the plaintiff’s involvement in drug dealing beyond any doubt. I refer to these calls in more detail later on in these reasons. Surveillance reports also identified the plaintiff in company with the other named targets who were clearly involved in the trafficking of illicit drugs. Moreover, Little detailed his investigative efforts surrounding the May 2008 allegations relating to Jammoul’s detention and his visit to the building where he was allegedly being held. Little encountered the plaintiff there, a meeting that added weight to his interpretation of the calls.

Investigative Necessity

[132] In the same vein as Detective Cole, Little explained the investigative techniques that were in use at the time and why they were deficient as a practical alternative to wiretap evidence in paragraphs 56 to 69 of the Cabra ITO. For example, surveillance could only show the location of the individuals but not reveal the content of their conversations and the longer surveillance continued, the more likely it was that it would be detected. Undercover officers were not viable as there was no way in infiltrating the group to gain access to its upper echelon. Safety issues were also a concern. Finally, search warrants and interviewing associates of the targets would alert the suspects to the investigation.

[133] As found above with respect to the Betrayal authorization, there were compelling reasons to believe that no other reasonable alternative method of investigation to intercepted communications existed or would be likely to succeed.

Conclusion on the Cabra Warrant

[134] I find that the Cabra ITO discloses sufficient evidence that might reasonably be believed on the basis of which the authorizing judge could have issued the warrant. Accordingly, as with the Betrayal ITO, there was no breach of the plaintiff’s Charter rights.

[135] Considering that finding, the plaintiff’s action against Little and the TPS with respect to negligent investigation fails and is dismissed.

[136] In light of my findings, I conclude that the Cabra warrant was properly issued. The evidence obtained from the Cabra intercepts provided the police with reasonable and probable grounds to arrest the plaintiff.

[137] As O’Marra J. observed in Kellman v. Iverson, 2012 ONSC 3244, at para. 23:

For a claim for negligent investigation to succeed it must be established that the negligence caused the charges to be laid in circumstances where reasonable and probable grounds did not exist. Failure by the plaintiff to establish absence of reasonable and probable grounds is fatal to a claim for negligent investigation.

[138] Accordingly, I dismiss the plaintiff’s claims of negligence, misrepresentation and tort of misfeasance against Detective Little and the TPS.

The General Warrant

[139] Although both parties agreed that the findings relating to the wiretap warrants would determine the allegations of negligent investigation, I make the following observations with respect to the other warrants for the sake of completeness.

[140] Turning to the General Warrant signed by Marshall J., it is hard to see how this had much effect on the plaintiff and I agree with the defendants that, on the evidence, there was little to suggest enforcement steps were taken with respect to the plaintiff.

[141] That leaves the remaining “take down warrant” upon which the plaintiff was arrested. The material before Marshall J. was sufficient, in my view, to provide a basis for the issuance of the warrant. The wiretap evidence made clear that the plaintiff was residing at 2121 Lakeshore Boulevard West. Most specifically, the wiretap recording of the plaintiff impersonating Peter Bacchus and making arrangements to book the moving elevator gave the police reasonable and probable grounds to believe that the plaintiff would be at that address. Additional wiretap conversations also confirmed the move to that address.

[142] There was also a basis for the police to have reasonable and probable grounds that the plaintiff had access to a firearm: the phone conversation between the plaintiff and his mother on 29 July 2008 contained references to a gun concealed in a box with the television. Detective Zeleny testified that because of this concern, and the plaintiff’s past record for violence, the Emergency Task Force was used to effect the arrest.

[143] For these reasons, I find no incidents of negligence or misconduct on the part of the police in seeking these warrants.

The Car Swabs

[144] I also reject the plaintiff claims that Detective Iliada Spyropolous swore a false affidavit to obtain a Management Order with the respect to the plaintiff’s car.

[145] Spyropolous’ role in Project Cabra was limited to that of a Proceeds of Crime officer. She testified that she did not have enough evidence to seized the plaintiff’s vehicle on 31 July 2008 and dispatched Lisa Costanzo to perform a swabbing of the Audi. Costanzo’s efforts - swabs of twelve different locations - tested positive for cocaine and heroin and provided grounds to seize the vehicle.

[146] The Management Order obtained on 7 August 2008 meant that the plaintiff’s car could then be moved from TPS property and into the possession and control of the Minister of Public Works and Services.

[147] I see nothing wrong with Spyropolous’s actions.

Conversion of Property

[148] The plaintiff alleges that, after his arrest, the police established custody over his property and “converted it for their own personal use”. The crux of this allegation is that the police officers failed to discharge their responsibilities pursuant to the regulations under the Police Services Act, R.S.O. 1990, c. P.15, or the Criminal Code to ensure the contents of 2121 Lakeshore were protected after they left the premises.

[149] First, it is clear that whatever property the police removed from the residence was returned to the plaintiff after his release from detention.

[150] Secondly, it is arguable whether the police had any ongoing duty to protect and secure the contents of the plaintiff’s apartment after they had conducted their search and seizure of evidence under warrant. However, assuming this to be the case, I note Detective Philipson’s testimony that he made arrangements with the building administration to secure the apartment after the police’s departure. That, in my view, was sufficient discharge of any police duty.

[151] It is also revealing that the plaintiff, on his own evidence, only called his lawyer once to enquire about the contents of his apartment. It would have been very easy for the plaintiff to contact his friends, business contacts or his mother to ensure that the property was secured and to retrieve its contents.

[152] Thirdly, the police took reasonable steps to ensure the well-being of the plaintiff’s dog. With the plaintiff’s enforced absence in custody, it was in the dog’s interest to be placed in an animal shelter.

[153] Accordingly, I reject any arguments that the police breached their duty of care to the plaintiff with respect to his property or in any other way failed in to perform their duties under the Police Services Act.

IV. THE ASSAULT AND BATTERY ALLEGATIONS

Section 25 of the Criminal Code

[154] Having found the authorizations to be lawful and, correspondingly, dismissed the plaintiff’s allegations in relation to the intercepted communications, I turn to the allegations of assault and battery.

[155] Section 25 of the Criminal Code governs the scope of force that may be used by police officers when making arrests and reads as follows:

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[156] Thus the police are justified in using force to effect a lawful arrest, provided that they have acted on reasonable and probable grounds and used only as much force as is necessary in the circumstances. When the police do use force, the reasonableness requirement is governed by the factual circumstances surrounding the arrest. As the Supreme Court explained in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 35:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude.

[157] Officers entering a residence where there are reasonable grounds to believe that a firearm may be available to the owner are faced with a heightened sense of danger. They must think and act quickly to deal with unpredictable factors beyond their control. In reviewing an arrest, ex post facto, a court cannot expect an officer to have precisely calculated the precise amount of force to be used in subduing a person. As was said in Webster v. Edmonton (City) Police Service, 2007 ABCA 23, 401 A.R. 266, at para. 26, citing para. 45 of Crampton v. Walton, 2005 ABCA 81, 363 A.R. 216:

Allowance must be made for an officer, in the exigency of the moment, misjudging the degree of necessary force. Accordingly, the immediate decisions a police officer makes in the course of duty are not assessed through the “lens of hindsight.” [Citations omitted]

[158] It has been held in cases such as that, in order to avail themselves of the protection afforded by s. 25, the police must prove, on a balance of probabilities, each of the following:

(1) They were required or authorised by law to perform the action;

(2) The action was committed to further the administration or enforcement of law;

(3) The police acted on reasonable grounds in performing the action;

(4) They did not use unnecessary force.

[159] See: Wilsdon v. Durham Regional Police, 2011 ONSC 3419; Crampton v. Walton, 2005 ABCA 81, 363 A.R. 216; Chartier v. Greaves, [2001] O.J. No. 634 (Ont. S.C.J.).

[160] However, even if unnecessary force is found to have been used, the onus remains on the plaintiff to demonstrate that the force used was excessive.

The Plaintiff’s Credibility

[161] As noted above, the plaintiff and arresting officers gave very different accounts of the arrest. The constables’ version of events, if believed, would satisfy the test contained in section 25 of the Criminal Code in light of their belief that the plaintiff had access to a firearm and was refusing to follow their commands to lie down on the floor.

[162] In a case where the court must consider two diametrically opposed accounts, the credibility of the witnesses becomes a paramount consideration.

[163] In assessing credibility, I turn first to the plaintiff, who bears the burden of proving his allegation. I found him to present well in giving his evidence in chief: his personal background, his education and business prowess were all set out in a very impressive manner.

[164] In cross-examination, however, his credibility collapsed like a house of cards.

[165] On numerous occasions, the plaintiff was confronted with various contradictions to his evidence. His response was a mixture of denials, arguments over semantics and, finally, acknowledgment that he had been untruthful.

[166] The following examples demonstrate the brittle nature of the plaintiff’s credibility.

(a) The Drug Calls

[167] The plaintiff was asked whether he had participated in any intercepted communications involving the sale or trafficking in unlawful drugs. The plaintiff unequivocally denied any such activity, maintaining the same stance taken in his examination for discovery.

[168] These denials matched the plaintiff’s pleadings contained in paragraph 53 of his Amended Statement of Claim which reads as follows:

“The Plaintiff specifically denies having made any conversation regarding the unlawful sale, purchase and/or distribution of any controlled substance and the Plaintiff puts the Defendants to the strict proof thereof”.

[169] Unfortunately for the plaintiff, the defendants did just that. Wiretaps obtained from the Betrayal authorization were played in court and all conclusively revealed the plaintiff talking about and arranging the trafficking of drugs.

[170] On 14 March 2008, the plaintiff was told by an associate, BJ, that his friend had come into possession of a quantity of heroin. BJ asked the plaintiff to “make some call”. The plaintiff chided BJ for using the term “heroin” but agreed to make “the call” as BJ had requested. Later that day, the plaintiff and an unknown male discussed the previous call expressing concern about BJ’s use of the word “heroin”.

[171] On 5 March 2008, the plaintiff engaged in a series of phone conversations with an unknown male talking about how much the “brick is man”. The conversation led to a discussion on how to divide an unnamed item and how the unknown male is going to work with the plaintiff. At one point, the plaintiff tells the male: “Oh my I really don’t want to do this, like champ, I order it, I just order it and it’s fine, if it isn’t fine you just bring it back, you know what I mean? But I guarantee you it would be fine.” When it was suggested that this utterance was the plaintiff’s promise that he could obtain a certain quality of drug, which, if unwanted, could be returned, he denied it.

[172] That same day, the plaintiff is heard, on his phone, speaking to someone in the background asking “how much is in a key?” The plaintiff continues “is it 36 or 28….. on a fuckin’ kilo of heroin”. The plaintiff continued to tell the male that he was trying to figure out how “to use this thing.” It is clear from the conversation that the plaintiff is asking about the price consequences of dividing an amount of heroin. At trial, the plaintiff agreed that the conversation involved heroin but his questions were ones of curiosity because he had never trafficked the drug. After some verbal fencing, the plaintiff conceded that he was talking about how to distribute a controlled substance. After further questioning, the plaintiff was forced to concede that, at the end of the call, he and the unknown male were discussing how they were going calculate the cost of the drug and what his share of the proceeds would be.

[173] On 31 March 2008, the plaintiff made an outgoing call to “Fernando” and then passed his phone to Pat Reda who informed Fernando that he was in possession of four kilos of ketamine for sale at $6000.00. Reda asked the plaintiff if Fernando could call Reda back on the plaintiff’s cell phone. Reda subsequently gave Fernando the plaintiff’s number. When confronted with this call at trial, the plaintiff claimed that it was only a discussion and that no sale of drugs actually occurred.

[174] On June 24 2008, the plaintiff received a text message from an unknown person which read: “Kitty?” In cross-examination, the plaintiff agreed that this was a euphemism for the drug, Ketamine. Immediately afterwards, the plaintiff called Hussein Jammoul and asked him if he had more “Kitty”. One minute later, the plaintiff contacted the sender of the text to tell them “I have two”. At trial, the plaintiff initially testified that he was talking about ketamine but did not agree to the suggestion that he was arranging for the transfer of the drug. After further denials, the plaintiff finally conceded that he was the “middle man” in the transaction and was letting the text recipient know that Jammoul had two “Kitties” so that the two parties could work out the transactional details.

[175] Finally, on 29 June 1008, at 12:31 a.m., the plaintiff called Jammoul about “three girls” that he accompanied to a party. The plaintiff asked Jammoul whether he could bring them “tomorrow.” In a conversation that descends into comedic farce, Jammoul was clearly unaware of the “three girls” that the plaintiff is referring to and the real meaning of the plaintiff’s words. When Jammoul asked for clarification, the plaintiff, angered by Jammoul’s inability to understand, berated him. The conversation continued as follows:

DUCARMUR: ---other three girls. The oth--- The two girls stayed with me, right. They let--- They--- When we had that party, I had the two girls, they came back with me.

E---The other three girls, they stayed with you. Are they cool to come back?

JAMMOUL: Ah I don’t ---(Unintelligible)---

DUCARMUR: ---(Unintelligible)--- wanna party or not, man?

JAMMOUL: Huh?

DUCARMUR: Do they wanna party or not? You have the three girls that you still have--- you running around with, man, like your cracker jack. I have the two girls that are cool. They went home. And I got--- I gotta--- I gotta--- I got--- you gotta fix them up.

JAMMOUL: Right, I’ll--- I’ll pick it up tomorrow.

DUCARMUR: Yeah, where’s the fuckin’ three girls that you have?

JAMMOUL: At my house. Why?

DUCARMUR: Okay. Are they fine to come out and party with us tomorrow?

JAMMOUL: Can you buzz me because I can’t hear you good.

DUCARMUR: I said are they fine to fuckin’ come out and party with us tomorrow.

JAMMOUL: What girls?

DUCARMUR: What?

JAMMOUL: I don’t remember what girls you talking about.

DUCARMUR: ---(Unintelligible)--- buddy, those two girls that you introduced me to, right. That I--- that ah--- they rolled around me, whatever the case may be. I still have them, right. Now I kicked them out of my house. But is the other three girls cool to come and party with the other three--- ah the three that I--- I--- I have right now.

JAMMOUL: Ah yeah, I will ask them.

DUCARMUR: Huh?

JAMMOUL: Yeah, I will ask them.

DUCARMUR: What? Bro, you’re with your fuckin’ girlfriend aren’t you?

JAMMOUL: What?

DUCARMUR: You’re with your girlfriend aren’t you?

JAMMOUL: Okay, buzz me, buzz me, it’s better.

DUCARMUR: No, I ain’t buzzing you, bro. You’re fuckin’ dumb.

JAMMOUL: ---(Unintelligible)---

DUCARMUR: ---Think about what I just said to you. Call me back.

JAMMOUL: Okay, bye.

[176] At 12:47 a.m., a clearly frustrated plaintiff again called Jammoul. Perhaps realising the folly of attempting a more sophisticated manner of code, the plaintiff became more direct. The conversation proceeded in the following way:

Hussein JAMMOUL: Hello.

Christopher DUCARMUR: Yeah.

JAMMOUL: Yeah.

DUCARMUR: Are you stupid or something, bro?

JAMMOUL: Huh?

DUCARMUR: Are you stupid?

JAMMOUL: One--- One second.

DUCARMUR: ---(Unintelligible)---

JAMMOUL: Huh?

DUCARMUR: I said, are you stupid, man? You know what I have, right? That belongs to you.

JAMMOUL: Huh?

DUCARMUR: What the fuck? ---(Unintelligible)--- shit over, man.

JAMMOUL: Hello.

DUCARMUR: What?

JAMMOUL: You’re in the club.

DUCARMUR: What?

JAMMOUL: I can’t hear noth--- You’re in the club. I can’t hear nothing.

DUCARMUR: Buddy, you already know exactly what I’m talking about, so stop sending fuckin’ messages. I told you, the girls that I already have from you.

JAMMOUL: Okay, I know.

DUCARMUR: All of them.

JAMMOUL: ---I get it. I get it.

DUCARMUR: All right? I need a number. ‘Cause the guy will deal with it no problem even though they’re shit.

JAMMOUL: Okay, I got it.

DUCARMUR: Okay, so, why you gotta send me all this--- all this bullshit for, man?

JAMMOUL: Okay.

DUCARMUR: You got--- You got issues, man. So---

JAMMOUL: ---I’ll see---

DUCARMUR: ---send me a---

JAMMOUL: I’ll see--- Huh?

DUCARMUR: ---What? What?

JAMMOUL: I’ll see you tomorrow at noon time then.

DUCARMUR: What?

JAMMOUL: I will see you at noon.

DUCARMUR: Bye.

JAMMOUL: Bye.

[177] The final call, on the same day, at 1:03 a.m. made no reference to any “girls”:

Hussein JAMMOUL: (Coughing). Hello.

Christopher DUCARMUR: Yeah

JAMMOUL: Yeah.

DUCARMUR: Yeah, so what you think, man? You--- You wanna get rid of them?

JAMMOUL: Yeah.

DUCARMUR: Huh?

JAMMOUL: Yeah.

DUCARMUR: Okay. So tomorrow.

JAMMOUL: Okay, no problem. For how ---(Unintelligible)---

DUCARMUR: I don’t know the number yet, man. You’re not gonna get what you want, though.

JAMMOUL: No, if I can’t get what--- get what I want---

DUCARMUR: Right, you can’t get the--- that high number, bro. They’re terrible. So you wanna dump them or not?

JAMMOUL: Yeah, ah you think I can get like fifty-five?

DUCARMUR: What?

JAMMOUL: Fifty-five?

DUCARMUR: I don’t know. You just bring, tomorrow they’ll pick them up. They’ll take them. I’ll know his number tomorrow.

JAMMOUL: Okay.

DUCARMUR: Just make them available.

JAMMOUL: Okay, then I will see you tomorrow when I come back.

DUCARMUR: Come back? From where?

JAMMOUL: Ye--- I’m in Hamilton. After I go to Niagara.

DUCARMUR: All right. All right.

JAMMOUL: All right.

DUCARMUR: All right, later.

JAMMOUL: All right, later.

[178] It would not take a code-breaker to figure out that the plaintiff is not actually referring to women that he and Jammoul have met. As Mr. McGivney, for the defendants, points out, that conversation would make little sense especially when Jammoul is actually in the company of his girlfriend. A review of the recordings, placed alongside the other intercepts which refer to drugs, makes it clear that both men are discussing the possession and sale of illicit controlled substances. At trial, the plaintiff was again forced to concede that the conversation concerned drugs.

(b) The Impersonation of Peter Bacchus

[179] During his examination in chief, the plaintiff testified that his friend, Peter Bacchus, had sublet 2121 Lakeshore to him. The plaintiff insisted that he had no direct arrangements with the landlord or his agent. No copy of the sublease has ever been produced. However, at trial, the plaintiff was confronted with an agreement to lease the property, purportedly signed by Bacchus, dated 3 July 2008. There were some anomalies within this document, however. Strangely, Bacchus appeared to have misspelled his own name on the lease as “Brachus”. This spelling error was not an isolated incident as the name “Brachus” appeared as a signature in three different locations on the lease.

[180] Mr. McGivney suggested to the plaintiff that Bacchus had never signed the lease or sublet the apartment to the plaintiff. According to Mr. McGivney, the plaintiff had impersonated Bacchus in order to obtain the apartment to overcome a financial hurdle: he had no credit and would therefore be refused as a potential tenant. Taking Bacchus’ identity would solve that problem by tricking the landlord into believing the plaintiff had sufficient funds to pay rent. The plaintiff emphatically denied this.

[181] That denial was quickly retracted when Mr. McGivney played a series of wiretap recordings where the plaintiff is heard telling the letting agent that he has to be “Peter” and she refers to him as “Peter Brachus”. In a second call, the plaintiff is heard attempting to change a booking for the building’s moving elevator and calling himself “Peter”.

(c) The Plaintiff’s Prior Convictions

[182] In his examination in chief, the plaintiff testified about his criminal record and told the court that he was last convicted of a criminal offence in September 1999. In cross-examination, when Mr. McGivney suggested to the plaintiff that his criminal record extended beyond 1999, the plaintiff surprisingly replied that he could not recall whether that was the case.

[183] In fact, the plaintiff had a series of convictions for impaired driving, theft and assault, which occurred after that date and which were only admitted when an updated criminal record was placed in front of him.

(d) Income Tax Evasion

[184] Neither was the plaintiff shy in deceiving the authorities when it came to declaring his income for tax purposes. The plaintiff openly admitted that he had deliberately lied about his income to Canada Revenue to avoid paying taxes. Those lies extended to concealing his level of income from his wife in order “to protect” himself and his money.

(e) The Gun in the Plaintiff’s Apartment

[185] When cross-examined about whether he had a gun in his apartment, the plaintiff explicitly denied it. He also claimed that the stun gun found by the police after their search of 2121 Lakeshore was not his. The intercepts, once again, belie these claims. In a phone conversation dated 29 July 2008, the plaintiff is heard asking his mother “where is my gun” to which she reassures him that he will “find it in the TV box”. Although the plaintiff claimed that this was the Airsoft pistol found by the police - contrary to his earlier evidence - it is telling that he uses the word “gun” in this conversation and not “Airsoft pistol”.

(f) The Plaintiff’s Demeanour

[186] A witness’ demeanour when testifying is a factor to be taken into account when assessing credibility: R. v. T.H., 2016 ONCA 439, at para. 4; R. v. O.M., 2014 ONCA 503, at para. 34.

[187] I found the plaintiff to be evasive and argumentative when answering questions posed in cross-examination. As noted previously, despite initially denying the suggestions made by Mr. McGivney, the plaintiff was forced to retreat and reverse his position on several occasions.

[188] For the above reasons, I found the plaintiff to be a witness whose evidence deserved little weight.

The Injuries Sustained by the Plaintiff

[189] Any doubts on the plaintiff’s claim of assault and battery by the police are settled by the evidence of his injuries.

[190] By way of reminder, the plaintiff pleaded the following in paragraph 68 of his Amended Statement of Claim:

In the course of the Plaintiffs arrest, he was gruesomely beaten and left with numerous lacerations and bruising. The Plaintiff for several days was urinating blood through his urethra. The medical staff at the Toronto West Detention Centre and later the Toronto Don Jail catalogued his injuries.

[191] The plaintiff claims that as a result of the assault he sustained the following long term injuries:

• Intense head pain between the ears

• Continuous migraines

• Severe trauma to the right leg and ankle resulting in deep vein thrombosis (DVT) which required emergency surgery to ensure that the plaintiff did not suffer pulmonary embolus, heart attack or an aneurism.

[192] The plaintiff thereby complains of two specific lasting consequences of the assault. The first is the occurrence of migraines that the plaintiff claims were caused by the blows to the head inflicted by Rennie on arrest. The second, even more serious, was the development of deep vein thrombosis (DVT) in his right leg, a condition involving the formation of a blood clot within his vein. The plaintiff argues that this was a result of the damage caused to his leg by the police on 31 July 2008.

[193] Despite the plaintiff’s claim that he was “left with numerous lacerations and bruising”, he was observed only to have an abrasion on his cheek and a bruise to his shoulder.

The Civilian Witnesses

[194] The plaintiff called several of his friends to support his claim that the injuries suffered had a lasting effect. Friends such as Joseph Friedberg, Alvaro Diblasio, John Rego and Randy Singh testified to the plaintiff’s health prior to and after his arrest and incarceration.

[195] All of these witnesses were steadfast in their evidence that the plaintiff was a healthy, active man who enjoyed physical activities and sports prior to his arrest. After his release from incarceration, however, these witnesses testified to a complete change. The plaintiff suffered from migraines and depression. His previous energy levels had disappeared and he was ready to go to bed by 8 p.m.

[196] I had some difficulties with the veracity of these witnesses particularly when they testified to their business dealings with the plaintiff. However, I am prepared to assume that the plaintiff’s health had deteriorated by the time of his release from prison. The question is not whether the deterioration occurred but what caused it.

Dr. Meghory’s Evidence

[197] Dr. Meghory, the plaintiff’s physician, had known the plaintiff since he was seven years of age and examined the plaintiff on 15 December 2010, some two and a half years after the plaintiff’s arrest. He had reviewed the plaintiff’s medical history and noted that the plaintiff had been prescribed Coumadin, a drug used to treat DVT by thinning the blood so that a stretched clot does not break apart at the ends and enter the lungs or other vital organs. Coumadin, according to Dr. Meghory, was only used to treat acute clots because they were most likely to embolise, i.e., a piece of the clot could break off and enter the lungs. According to Dr. Meghory, clots remained in the plaintiff’s body but were not dangerous. The plaintiff continued to complain of pain in his leg, which was still swollen, during his visits to Dr. Meghory. Dr. Meghory also testified that the plaintiff was complaining about a persistent pain in his jaw which was causing him headaches.

[198] The plaintiff relies on Dr. Meghory’s evidence to support his claim of assault by the police and the resultant injuries. In assessing Dr. Meghory’s evidence, it is worth remembering that there is no dispute that a Doppler test discovered a clot in the plaintiff’s leg after it was seen to be swollen. Dr. Meghory’s evidence confirmed that fact but offered little insight into what had triggered the formation of the clot.

[199] The difficulty with the doctor’s evidence is that his knowledge of the plaintiff’s history of leg issues largely comes from the plaintiff’s own self-reporting. Dr. Meghory did not see the plaintiff between September 2004 and December 2010 and was unable to shed any first-hand light on whether the plaintiff had similar complaints prior to his arrest. Nor did Dr. Meghory have the opportunity to review the WDC medical records. That documentation, in my view, would have been significant in conducting a proper analysis of the cause of the DVT.

[200] What is telling is that the plaintiff did not seek medical attention for any of the assault-related injuries until 15 December 2010, one year after his release from incarceration and, significantly, six months after he commenced this action. On that first visit, even though the plaintiff described the events of his arrest and incarceration, he made no mention of any injury to his head, shoulder or temporomandibular joint. Nor was there any mention by the plaintiff that his right leg had been stomped on by the police.

[201] Moreover, when the plaintiff revisited Dr. Meghory in January 2011, there was once again no complaint of any of the injuries allegedly caused by the arrest. The first time the plaintiff told Dr. Meghory that he had been stomped on by the police was in August 2011. Additionally, the first mention of headaches took place on 11 October 2011. With respect to the medical evidence including records of Dr. Grushka, Dr. Bryer and Dr. Bercovicci, it is clear that there were no findings of trauma-related injuries.

[202] In conclusion, although I found Dr. Meghory’s testimony to be useful in describing the symptoms and treatment of DVT, it was of little assistance in determining the date or cause of the injuries.

Evidence Recorded at the Police Station

[203] Whilst the medical evidence was inconclusive on the timing of the injuries, the physical evidence recorded in the immediate aftermath of the arrest was far more revealing. In my view, it rebuts the allegations made by the plaintiff.

[204] The video recording taken of the plaintiff’s booking in at the police station is most instructive. When the plaintiff arrived at the police station, there was no indication of any lacerations or extensive bruising. The two injuries noted are a bruise or abrasion to the cheek and a bruise to the plaintiff’s left shoulder. When asked by the Desk Sergeant if he had sustained any other injuries, the plaintiff clearly said “No”.

[205] The plaintiff also testified that, as a result of the first officer’s assault, he was experiencing severe pain in his head “like a pencil being pushed into my skull”. I have reviewed this recording several times. There is no indication that the plaintiff is experiencing any pain whatsoever. Nor does it make any sense that the plaintiff would not inform the Desk Sergeant of his extreme discomfort when given the opportunity to do so.

[206] I take the same view of the plaintiff’s complaints that his toes were “purple” after the alleged assault by the officer. It defies common sense that the plaintiff would not mention these injuries knowing that he was being video-recorded.

[207] Finally, the plaintiff testified that Rennie stamped on the back of his leg during his arrest at 2121 Lakeshore. This is the alleged cause of the plaintiff’s DVT. The plaintiff testified that he was carried out of his apartment and had to be held up when entering the police division. Once again, the images tell a different story. There is nothing on the video recordings indicating that the plaintiff required assistance to remain standing. The officer who accompanied him made minimal contact and did nothing that could be interpreted as assisting the plaintiff in standing. At one point, the officer turned his body away from the plaintiff without any deleterious effects to the plaintiff’s posture or stance. Finally, the plaintiff walked without any difficulty - and not dragging his feet as claimed in his evidence - in both the entry and exit videos at the station.

The Photographs Taken by Tremblay

[208] Then there were photographs taken by Sergeant Daniel Tremblay at the WDC as part of the entry screening process. Tremblay had the opportunity to speak to the plaintiff prior to taking pictures of his injuries. The raison d’être of the process was to ensure a written and visual record of all injuries found on the plaintiff as a form of protection against allegations of negligence or abuse suffered whilst in detention. It goes without saying that, in implementing such a process, it was in Tremblay’s and the WDC’s best interests to record every injury found on the plaintiff, no matter how minor.

[209] Tremblay took pictures of the plaintiff’s entire body and confirmed that all visible injuries were photographed. Tremblay testified that he would have taken photographs of any marks drawn to his attention by the plaintiff. The images show only a small bruise to the plaintiff’s cheek and a mark on his shoulder. Significantly, there was no bruising found on the plaintiff’s back or legs. These images provide the best evidence that the assault described by the plaintiff did not occur.

[210] Whilst being photographed the plaintiff wore a pair of socks even though he claimed his toes had become discoloured as a result of the police assault. The plaintiff claimed that he informed Tremblay of this fact but was met with Tremblay’s response that “we had enough”.

[211] I reject the plaintiff’s evidence as a fabrication. As I have already indicated, there would have been no reason for Tremblay to ignore any possibility of injury and expose the WDC to potential litigation. The opposite is true: if the plaintiff had pointed out his injured toes, Tremblay had every reason to document that fact to protect himself and the WDC.

The West Detention Centre Medical Reports

[212] I have referred to the plaintiff’s silence regarding his injuries during the booking in process. The plaintiff sought to explain his muted state by insisting he was “dazed” and unable to think clearly due to the assault, adding that he did not want to share details of the assault with the police.

[213] One would have expected this state of confusion to have resolved by 4 August 2008 when the plaintiff was examined by the medical staff at the WDC. However, even then details of the assault and its consequences remained unspoken. The Health Assessment Form details conversations between the plaintiff and the examining nurse, Jolanta Zoldak. The form records the plaintiff telling the nurse that he had “no other injuries” after the bruise on his face and shoulder have been observed and recorded. Once again, it defies belief that the plaintiff, suffering from extensive pain and injuries from head to toe, would fail disclose them when directly asked by medical staff. Once again, no visible injuries to the plaintiff’s head and leg were observed or noted by the nurse.

[214] The plaintiff agreed, in cross-examination, that there was no reason to keep anything from the nurse at the WDC. His assertions that he failed to mention his pain and injuries at the station because he did not want to share details of the assault with the police cannot explain the same lack of communication to medical staff. This fact is further highlighted when he told Dr. Meuller, the doctor who examined him at the WDC, that he had a pain in his shoulder by being “stepped on by police”. If the plaintiff was now willing to mention one cause of injury to the medical staff, why not mention them all? Like Tremblay and Zoldak, Dr. Mueller observed only the abrasion on the plaintiff’s cheek and the bruising on the left shoulder. A subsequent x-ray of the shoulder showed no internal injury.

[215] Finally, there is no explanation as to why, if the plaintiff was urinating blood, this fact was never mentioned to medical staff. The plaintiff’s reason was that he was “trying to concentrate on [his] case”. I find this to be unbelievable. A person suffering intense head pain, shoulder and leg injuries, and passing blood in his urine would at least alert the authorities to treat that pain and provide information as to its cause.

[216] Instead, on more than one occasion, the plaintiff preferred to report “no other injuries”. I find that he did so because there were “no other injuries” aside from those seen and recorded by staff at the WDC. By way of further confirmation, the plaintiff’s urinalysis test revealed no problematic issues.

The Injuries to the Plaintiff’s Head

[217] The plaintiff was emphatic that he had never suffered migraines prior to the assault. However, an intercepted conversation between himself and a romantic interest, Rose Wilson, recorded the plaintiff talking about having a history of migraines “from the day I was born”. This conversation occurred at least three months prior to the plaintiff’s arrest. I disbelieve the plaintiff’s explanation that he only told Wilson of the migraines to deflect demands to see her. Up until that point in the conversation, Wilson had made no such request and the plaintiff had already given her an excuse: he was tired and needed to go home because he had “been up since five”.

[218] There was also no need, in the context of the conversation, for the plaintiff to provide the additional details that his migraines were caused by sunlight or fluorescent light. Coincidentally, when interviewed by staff at the WDC on 17 September 2008, the plaintiff told medical staff a similar story: that he had a “long history” of migraines and he suffered from photophobia, a condition resulting in his eyes being sensitive to light. Although the plaintiff’s response sought to explain the term “long history” as referring to his period of incarceration, I find that to be implausible as, at this point, the plaintiff had only been detained for six weeks. Nor did the plaintiff tell the medical staff that the migraines had only started after he was arrested.

[219] Finally, it is telling that the Health Care Record notes, on that date, that the plaintiff denied the need for any medication. Once again, I find this fact impossible to reconcile with the plaintiff’s insistence, at trial, that after the arrest he suffered continually with migraines. If this was the case, one would expect the plaintiff to be demanding medication rather than refusing it. I repeat my earlier observation that, when being booked into the police station, he displayed no visible signs of discomfort or distress.

[220] I find as a fact that when the plaintiff told Wilson that he had migraines from an early age he was telling the truth. His allegations that the migraines started only after his arrest are, in my view, a fabrication designed to assist him in his claims against the police.

[221] For the above reasons, I conclude that the plaintiff did not sustain any head injuries during his arrest.

The Injuries to the Plaintiff’s Leg

[222] Whilst in custody, the plaintiff ’s leg began to swell and hardened from the thigh to the base of the calf. The swelling was diagnosed as DVT and required surgery. According to Dr. Meghory, DVT is a potentially life threatening development which could lead to a problematic blood clot breaking up and dispersing throughout the body. If any part of the clot reached the plaintiff’s lungs, the likelihood was that it would cause a blockage and lead to the plaintiff’s death. The plaintiff contends that this injury was caused by and is proof of the police assault.

[223] Mr. McGivney, for the defendants, did not dispute the plaintiff’s condition nor its disastrous consequences if left untreated. However, he submits that the DVT was a result of a pre-existing condition and not any assault by the police.

[224] During the trial, the plaintiff’s account of his leg injuries and their cause changed constantly. In his examination in chief, the plaintiff testified that he had no difficulties with his leg until his arrest. In cross-examination, he was confronted with prior statements given to the WDC recounting a history of injury to his calf muscle and hamstring. The plaintiff subsequently changed his evidence and conceded that he may have had prior leg problems. He maintained, however, that those problems were nothing like the symptoms suffered after the assault. The plaintiff’s trial testimony in turn contradicted the evidence given at discovery where he testified that he had never previously had any difficulties with his legs.

[225] These inconsistencies do not stand alone. The first recorded entry in the Health Care Records concerning the plaintiff’s leg is dated 9 October 2008 - almost two months after the arrest. The Records note the plaintiff declaring that the leg was “all twisted up on floor” during the arrest. There is no reference to the plaintiff having his hamstring or ankle “stomped on” or otherwise beaten.

[226] The truth of the matter emerges in a series of wiretap evidence obtained months before the plaintiff’s arrest. On 28 March 2008, the plaintiff described his swollen and painful right leg to his mother. His mother asked if he had taken the anti-inflammatory medication that she previously given him. It is clear that the plaintiff was unaware of the cause of the swelling and could only conclude that the injury occurred as a result of running. That same day, the plaintiff discussed the injury with a friend telling him that he could move his legs but that one had swollen up, become solid and was “way bigger than the other”.

[227] On 29 March 2008, the plaintiff told another friend that he had not been able to “do shit for days” and that he was unable to walk. The plaintiff reported his leg as being “twice the size of the other leg”. Once again, the plaintiff had no idea what was causing these difficulties.

[228] These communications, along with the plaintiff’s recorded comments to hospital staff, provide overwhelming proof that the symptoms suffered by the plaintiff after his incarceration were present well before his arrest. In my view, the plaintiff’s DVT was not the result of a police assault but the manifestation of a pre-existing condition that the plaintiff was aware of as early as March 2008.

Conclusion on Assault and Battery Claims

[229] The evidence overwhelmingly dispels any notion that the migraines and DVT that afflicted the plaintiff were caused by a police assault.

[230] Even though the onus is borne by the plaintiff I would add that, in contrast to his testimony, I had very few concerns about Moore and Rennie’s evidence. Both testified in a credible manner and neither officer was shaken in cross-examination. Whilst I might have some concern that Rennie’s notes were missing some important information, such as the fact that he had been told there was a firearm, I am prepared to accept that this omission was the result of an honest mistake.

[231] I also accept the implication of Moore and Rennie’s evidence that there was little reason for either of them to assault the plaintiff once he was forced to the ground.

[232] I conclude therefore that there was no assault by the police when they arrested the plaintiff. I find that Moore used reasonable force to subdue and arrest the plaintiff after he refused to follow directions to lay on the floor. The force used caused minor bruising to the plaintiff’s face and shoulder and was justified by the reasonable belief that the plaintiff had possession of a firearm stored in the apartment.

[233] For the above reasons, the plaintiff’s claim of assault and battery is dismissed.

V. DAMAGES

[234] If, however, I am wrong on the above issues, I would make no award for any loss of income and award the plaintiff $10,000 for the injuries suffered as a result of the arrest.

Loss of Income

[235] Two witnesses dealt with the issue of the loss of income suffered by the plaintiff.

[236] James Krofchik, called by the plaintiff, used a narrow measure of calculation analyzing the plaintiff’s filed tax returns and credit availability to impute his income. Bob Ferguson, called by the defendants, took a different view. Much of his criticism of Krofchik’s conclusions stemmed from the over-reliance on information reported by the plaintiff and not independently verified.

[237] One of the central questions surrounding the plaintiff’s income was whether he owned and operated a business prior to his incarceration. The plaintiff attested that he taught himself computer programming and began a series of ventures providing software services to various business establishments through Global Canada. Other business ventures were also cited in his business resume.

[238] Krofchik used this information in concert with the details of the Canada Revenue Agency’s (CRA) audit of the plaintiff to calculate his income. Krofchik based his conclusions on the money flowing through the plaintiff’s bank accounts, the mortgages granted to him and the debt that he was servicing. These calculations were based on the logical assumption that a person could not service the plaintiff’s debts without producing income. Ferguson, whilst agreeing with the concept, disagreed with the methodology because there was no independent source of information which could be substantiated.

[239] Although the plaintiff testified about his companies and listed them on his LinkedIn page, there was very little evidence that they actually existed. In his discovery hearing in October 2013, the plaintiff could not name a single client or company that he had provided services for. At that hearing, the plaintiff provided an undertaking that he would advise if he recalled the name of any clients in 2006 and 2007. Subsequently, he provided a list of clients but qualified his answer by stating that he was “not sure if all these individuals were clients in 2006 and 2007.” His memory was not much better at trial where the plaintiff could not give the addresses of any of his purported customers beyond stating that they were located in Ontario.

[240] To support his claims, the plaintiff called two witnesses to testify that they had used the plaintiff’s software services. Joseph Friedberg, told the court that he had conducted business with the plaintiff and paid for his services in cash. Friedberg testified that the plaintiff had set up his website and online store. Occasionally Friedberg gave the plaintiff jewellery as gifts for his wife. The problem with Friedberg’s evidence is that there was little in the way of confirmatory evidence. He had not brought the written contract made with the plaintiff, had no invoices because he would not have kept them after ten years, and had no records or receipts.

[241] Another witness, Ralph Sickinger, who owned a collection company, told the court that the payment for the plaintiff’s services was mainly made in cash and cheques, in accordance with the plaintiff’s wishes. Like Friedberg, Sickinger was unable to produce records to confirm payments to the plaintiff’s company. According to Sickinger, the paying company, Karma Financial, was no longer in business and the records would be unavailable.

[242] Therein lay the problem: there were no business records, no invoices, no cheques and no other documentation supporting the existence of the businesses. The plaintiff further explained that he conducted all of his transactions in cash and failed to report income to the CRA because he wanted to conceal his income from his wife so that he could avoid spousal payments in the event of a costly divorce.

[243] The difficulty with the plaintiff’s explanation is that with his background and circumstances it is inconceivable that no business records would exist. The plaintiff’s business was the provision of specialised computer services: it would make no sense that there would be no type of records, particularly invoices, on his computer. Those records, if they existed, would have been seized by the police when they seized the computer. Mr. Bogle argued that any records on that computer became inaccessible because the computer returned to the plaintiff had corrupted hard drives. Mr. Bogle’s argument might have carried some weight had it not been overtaken by the plaintiff’s own evidence that no records were ever kept on his computer.

[244] According to the plaintiff, the only records that existed were in paper form and stored in boxes at 2121 Lakeshore. Those boxes were removed without his knowledge or consent and with them went the only documentary business records. Even if I were to accept this proposition, it does not explain why the plaintiff could not obtain those same invoices or receipts from the customers to whom he provided services. With the dearth of documents came the dearth of any adequate explanation as to why they were missing.

[245] Ferguson also testified to the incongruity of the plaintiff’s position: whilst it was understandable that the plaintiff might seek payment in cash to avoid reporting income, his business customers would be very unlikely to cooperate as there would be no documentary evidence or paper trail in the event of a CRA audit.

[246] The CRA appeared to conclude that Global Canada was not registered because it made less than $30,000 per annum and was unable to find any substantial income made by the company. A letter dated 2 September 2003 sent to the CRA by Michael Lomer, the plaintiff’s lawyer, in response to its audit and its enquiries of the plaintiff’s source of income, made no reference to any income deriving from a business and only noted lines of credit and ownership of property. The letter concludes that “it is obvious that the Du Carmurs have been living on credit” and makes no mention of the plaintiff living off the proceeds of any business.

[247] The plaintiff did produce one document of note: a fax sent to the CRA as a result of the audit and the only document produced to this court recognising the existence of Global Canada. This fax, emblazoned with a company letterhead entitled “Global Cananda” (sic), was purportedly a document prepared by the Toronto Dominion Bank (TD). The difficulty is that the branch number on the document matched to a Royal Bank of Canada bank account in somebody else’s name. It is unclear why a document produced by TD would bear the details of a completely different financial institution. The inference to be drawn from this document is that the plaintiff prepared a false document to provide to the CRA.

[248] Krofchik’s analysis was essentially an exercise in working backwards from what the plaintiff spent on his lifestyle: if the plaintiff could afford a certain lifestyle then he must have earned a certain amount of income. The problem for Krofchik was that he could not say where that income originated from and relied on the plaintiff’s assertions that the source was his computer business. In cross-examination, Krofchik conceded that he had no evidence that the plaintiff was involved in any business from 2004 to 2009.

[249] For the reasons set out above I find as a fact that the plaintiff did not operate a business. As a result, I take the view that Krofchik’s calculations are founded on a flawed premise and I reject them. I find that there is abundant evidence that the plaintiff was involved in illicit activities before his arrest which may or may not have been the source of his income. However, the plaintiff has failed to discharge his burden of proving past and future income loss.

The Plaintiff’s Injuries

[250] If I am wrong on the issue of assault and battery, the only injuries sustained by the plaintiff were a bruise to the plaintiff’s cheek and shoulder. These were minor injuries and would result in an award of minor damages. In my view, the appropriate award would be $10,000.00.

[251] I reject any notion of any post traumatic stress disorder (PTSD) being suffered by the plaintiff. Dr. Harris’ diagnosis of PTSD requiring counselling was based on the plaintiff’s self-reporting of facts that I have found to be untrue. I also note Dr. Harris’ final observation that the plaintiff might have been traumatised even if the police had acted lawfully.

Punitive and Charter Damages

[252] The plaintiff claims both punitive damages as well as damages for the breach of his Charter rights. As I have found that the police did not misconduct themselves in any way, there is no basis to award either set of damages.

VI. CONCLUSION AND COSTS

[253] The plaintiff’s claim against all defendants is dismissed in its entirety.

[254] I invite both parties to submit submissions with respect to costs, no longer than 5 pages in length, within 15 days.

S.A.Q. Akhtar J.

Released: 9 August 2016

CITATION: Du Carmur v. Cole, 2016 ONSC 4930

COURT FILE NO.: CV-10-407731

DATE: 20160809

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER DU CARMUR

Plaintiff

– and –

DETECTIVE CONSTABLE DOUGLAS COLE BADGE NO. 855, THE YORK REGIONAL POLICE CHIEF ARMAND P. LA BARGE, THE YORK REGIONAL POLICE SERVICE BOARD, DETECTIVE CONSTABLE DAVID LITTLE BADGE NO. 469, DETECTIVE ILIADA SPYROPOULOUS BADGE NO. 7918, (ALSO KNOWN AS DETECTIVE ILIADA LEAHY, THE TORONTO POLICE CHIEF WILLIAM BLAIR, THE TORONTO POLICE SERVICE BOARD, POLICE OFFICER JOHN DOE

Defendants

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.