CITATION: Rotondo v. Ottawa Police Services Board, 2016 ONSC 8101
COURT FILE NO.: 08-CV-41210
DATE: 20161223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEANA ROTONDO and CHANDRA SAUNDERS
Plaintiffs/Responding Parties
– and –
OTTAWA POLICE SERVICES BOARD and OTTAWA POLICE DETECTIVE MARTIN GROULX and OTTAWA POLICE CONSTABLE DAWN NEILLY and OTTAWA POLICE CONSTABLE VAN NGUYEN and OTTAWA POLICE CONSTABLE ELI EDWARDS
Defendants/Moving Parties
Cheryl Letourneau, for the Plaintiff/Responding Party, Deana Rotondo
Jeremy Wright, for the Defendants/Moving Parties
HEARD: September 8, 2016
REASONS FOR decision
Beaudoin J.
Overview
[1] The Plaintiff, Deana Rotondo, (“Rotondo”) seeks damages for false arrest, false imprisonment, negligent investigation and breach of her Charter rights, namely: s. 9 (arbitrary detention); s. 8 (unauthorized search and seizure); and s. 7 (right to life, liberty and security of the person). Chandra Saunders has previously consented to a dismissal of her claims.
[2] The Defendants bring this motion for summary judgment seeking the dismissal of these claims on the basis that reasonable and probable grounds existed to arrest and charge Rotondo and that no breach of Rotondo’s Charter rights occurred; that in any event, Rotondo has received an appropriate remedy in the related criminal proceedings for any alleged Charter breach. Alternatively, the Defendants maintain that Rotondo has not suffered any compensable damages as she likely committed the offences for which she was arrested and charged.
Background
[3] The Defendant, Sergeant Martin Groulx (“Groulx”), was the lead investigator with respect to this case. He commenced his investigation on March 14, 2006 and he has filed an affidavit setting out the full extent of his investigation, and attaching as the exhibits, all of the supporting documentation.
[4] On March 14, 2006, he was briefed by Constable Nguyen on an investigation Nguyen had conducted approximately four months earlier where a male reported that he had been offered sexual services by a masseuse at VIP Studio.
[5] On March 15, 2006, Groulx conducted a background search into VIP Studio and learned the following:
a) VIP Studio was owned by Rotondo;
b) In 1999, Rotondo was an employee of Serenity Relaxation Spa, a business identified by the Ottawa Police Service (“OPS”) as a bawdy house although no charges had been laid against Rotondo;
c) In June 2005, information was received by OPS that VIP Studio was a front for prostitution;
d) A follow-up investigation in June 2005 disclosed no items on the premises indicating sexual activity;
e) on December 8, 2005, a complaint was received from Denis Jeanveau who advised Ottawa police that he had been offered sexual services by a masseuse at VIP Studio, this being the same complaint referred to earlier;
f) A follow-up investigation was done in February 2006. Once again, no items were found on the premises indicating sexual activity; and
g) A Google Internet search at VIP massage provided a link to a web address of www.eroticmassage.ca which site did included an advertisement for VIP Studio.
[6] On March 17, 2006, Constable Dawn Neilly telephoned VIP Studio on the pretense that she was inquiring for a job after seeing an advertisement in the Ottawa Sun. At a subsequent interview with the manager on March 23, 2006, Constable Neilly and Constable Andrea Lensen attended at VIP Studio. Constable Lensen indicated she was also interested in the job. The job interview was conducted by a woman who identified herself as “Deana”, the manager/owner of the business. The constables prepared will say statements, investigative action reports, and notes relating to their involvement in the investigation. Some of the information gathered included:
a) Deana asked if Neilly was willing to give a “hand job” as part of the massage; when Neilly said “yes”, Deana said words to the effect of “good”;
b) Deana asked the Constables to sign a contract stating they were working as a receptionist/cleaner to protect her against the police;
c) Deana said that clients paid set room fees and the masseuses can do whatever they like for the clients and Deana would receive $30 from the tips for extras and that all the girls working must charge the same amount for extras so that there is no undercutting of prices; and
d) Deana said that condoms would be provided to the masseuses.
[7] On March 28, 2006, Groulx consulted with Sergeant Sadaka of the OPS who advised him that in massage parlours, “tips” and “extras” are recognized terms of prostitution.
[8] On April 4, 2006, Groulx obtain search warrants for the premises of the VIP Studio and for Rotondo’s residential address. These search warrants were executed on April 7, 2006. There were numerous documents found in the searches which include:
a) a handwritten note at the VIP Studio stating “make sure that the bag in the smoking room is always hidden!”, a search of this room uncovered a hidden bag with condoms in it;
b) A handwritten note at the VIP Studio premises with dollar amounts associated with various abbreviations, being H.J., T.H.J., N.H.J., R.H.J., B.J.,T.B.J., N.B.J., R.B.J., F.S .and F.S. w B.J. (with a line about the w) which Groulx believed corresponded to Hand Job, Topless Hand Job, Nude Hand Job, R? Hand Job, Blow Job, Topless Blow Job, Nude Blow Job, R? Blow Job, Full Sex and Full sex with Blow Job;
c) a Durex Sensi-cream condom box was found in the VIP Studio premises with five Durex condoms and one Trojan condom;
d) a plastic bag containing two flavoured Trojan condoms, one Trojan condom and two Durex condoms;
e) one opened Durex condom package found at the VIP Studio premises and located under the sheets of the massage table;
f) clips from daily activity sheets found at the VIP Studio showing numerous transactions with “+30” written beside varying amounts;
g) daily activity sheets found at the VIP Studio premises listing exclusively male clients; and
h) a hand written draft of a book titled “Where is your husband tonight? The Story of the Massage Parlour Industry” found at Rotondo’s residence.
[9] On April 7, 2006, Groulx decided to arrest Rotondo for keeping a bawdy house and living off the avails of prostitution.
[10] On April 17, 2007, halfway through Groulx’s trial evidence, the Crown stayed the charge against Rotondo on living off the avails of prostitution. On August 30, 2007, the Honourable Justice Dempsey dismissed all charges against Rotondo at the request of the Crown after excluding the evidence seized from her residence and her business after determining that it had been obtained in violation of the Canadian Charter of Rights and Freedoms Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “Charter”], namely, Rotondo’s right to be free from unreasonable searches (s. 8).
[11] Rotondo has filed her own affidavit wherein she notes the two attendances by the Ottawa Police Services where no evidence was found; she disputes the version of events reported by the undercover officers and she states that if incriminating items were found at the search of her business, she had no knowledge of them. She goes on to make further allegations with respect to the manner in which the search was carried out and with regard to the events after her arrest.
The Issues on this Motion
(a) Is this an appropriate case for summary judgment?
(b) What is the standard of care applicable to claim for false arrest, false imprisonment, negligent investigation?
(c) Is expert evidence required as to that standard of care?
(d) Was there a breach of that standard of care?
(e) Were any of Rotondo’s Charter rights infringed?
(f) Has Rotondo suffered compensable damages at law?
The Law
[12] The seminal decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 encouraged a resort to summary judgement rules and said that these rules “must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”[^1]
[13] The Supreme Court set out the roadmap approach to summary judgment at para. 66:
[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[14] Earlier, at para. 49, the Supreme Court determined when there will be no genuine issue requiring a trial:
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[15] A useful summary of the principles is found at para. 20 of Grann v. Thunder Bay Police Services Board, 2015 ONSC 438:
[20] The leading case regarding summary judgment in Ontario is the relatively recent case from the Supreme Court of Canada in Hyrniak v Maudlin 2014 SCC 7, [2014] 1 S.C.R. 87. The case sets out a number of important principles applicable to this motion as follows:
• There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (para. 49);
• The standard for fairness is not whether a summary judgment motion is as exhaustive as a trial, but whether the process gives the court confidence that it can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50);
• The interests of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability (para. 56);
• On summary judgment motion process, the evidence considered by the court need not be equivalent to that which would be available at a trial, but must be such that the presiding judge is confident that she can fairly resolve the dispute (para. 57); and,
• A summary judgment motion can consider a comparison of evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. Even if the evidence available on a motion is limited, there may be no reason to think that better evidence would be available at trial (para. 58). The Rule that each party must put its “best foot forward” continues to be good law.[^2]
The Standard of Care: Reasonable and Probable Grounds
[16] The law of negligence requires the three elements of duty of care, breach of the standard of care and causally connected damages. The standard of care with respect to all of the torts in issue here; namely of false arrest, false imprisonment and negligent investigation is informed and determined by the presence or absence of reasonable and probable grounds to arrest and charge.[^3] The law in this area was canvassed in the recent Court of Appeal decision in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241 where the Court held:
[47] The appropriate standard of care for the tort of negligent investigation was established by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. The “flexible overarching standard” is that of “a reasonable police officer in similar circumstances”: Hill, at para. 68. As explained by the Chief Justice, at para. 73:
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.
[48] The conduct of a reasonable police officer may vary depending on the stage of the investigation and the legal considerations. In laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty: Hill, at para. 55.
[49] The Supreme Court of Canada in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251, defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. See also: R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, at para. 24. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make an arrest: R. v. Storrey, at p. 251.
[50] The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251; Wong v. Toronto Police Services Board, 2009 66385 (ON SC), 2009 66385, 2009 CarswellOnt 7412 (S.C.), at para. 54; Gioris v. Toronto Police Services Board, 2012 ONSC 6396, 2012 CarswellOnt 15071, at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:
The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused.
[51] The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.
[52] Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244, [2012] O.J. No. 2529, at para. 16; and Wong, at para. 59.
[17] The Court of Appeal went on to conclude that the general rule is that expert evidence on the standard of care is required subject to two exceptions:
[56] Whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met.
[57] Epstein J.A., on behalf of this court in Krawchuk, identified two exceptions to the general rule that it is not possible to determine professional negligence without the benefit of expert evidence. The first, as mentioned above, is in nontechnical matters within the knowledge and experience of the ordinary person. The second is where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care. Epstein J.A. explained, at para. 135, that “this second exception involves circumstances where negligence can be determined without first identifying the parameters of the standard of care rather than identifying a standard of care without the assistance of expert evidence.”
A Claim for Breach of Charter Rights
[18] As noted, Justice Dempsey determined that the searches of Rotondo’s residence and business violated her s. 8 Charter rights. In her claim, the Plaintiff seeks damages for the following breaches of her Charter rights namely: s. 9 (arbitrary detention); s. 8 (unauthorized search and seizure); and s. 7 (right to life, liberty and security of the person).
[19] In Abboud v. Ottawa Police Services Board, 2016 ONSC 1052, Justice Robert Smith summarized the leading decision Vancouver (City) v. Ward and noted at para. 44:
[44] In Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the Supreme Court established a four step test for evaluating claims for Charter damages:
The plaintiff must establish a Charter breach;
The plaintiff must establish that damages serve the objectives of compensation, vindication of the right, or deterrence of future Charter breaches;
The defendant can attempt to establish countervailing considerations that render damages inappropriate or unjust;
The Court must decide on a quantum of damages
[20] In the Vancouver (City) v. Ward decision, the Supreme Court of Canada concluded that functional approach to damages was required:
[34] A functional approach to damages under s. 24(1) means that if other remedies adequately meet the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) would serve no function and would not be “appropriate and just”. The Charter entered an existent remedial arena which already housed tools to correct violative state conduct. Section 24(1) operates concurrently with, and does not replace, these areas of law. Alternative remedies include private law remedies for actions for personal injury, other Charter remedies like declarations under s. 24(1), and remedies for actions covered by legislation permitting proceedings against the Crown.
[21] In applying that test, the Court in Abboud held at paras. 49 and 52:
[49] I find that the plaintiffs have not proven on a balance of probabilities that monetary damages are needed in order to compensate them or that monetary damages are required to highlight the harm that the breach caused to society. Finally the plaintiffs have not provided evidence to show that the police officers and Police Board must be deterred to ensure state compliance with the Charter. The plaintiffs did not produce any evidence that the Police had a general practice of obtaining search warrants for residences without ensuring that they had reasonable and probable grounds to obtain a search warrant.
[52] In the circumstances of this case, I am satisfied that the police have shown that the damages would be inappropriate having regard to the nature of the breach and also having regard to the fact that Georges has already received sufficient benefit as the evidence obtained from the search warrant was not admitted into his criminal trial.
[22] The Defendants further submit that Rotondo’s s. 7 and s. 9 rights were not breached given that reasonable and probable grounds existed for her arrest and charge. In Abboud, the Court dismissed those claims on a motion for summary judgment at para. 58:
[58] The Ward factors set out by the Supreme Court also apply to a claim for damages for breach of an individual’s section 7 rights pursuant to the Charter. I find that the functional objectives of the Charter have already been met as a result of the exclusion of the evidence obtained by the search warrant in Georges’ criminal trial. For the same reasons given under the claim for damages for breach of their section 9 Charter rights, I find that damages are inappropriate and unjust because the police had reasonable and probable grounds to detain and arrest Georges.
[23] In doing so, the Court cited the Divisional Court decision in Ontario Society for the Prevention of Cruelty of Animals v. Hunter, 2014 ONSC 6084 where it concluded at para. 56:
…a further remedy for the Charter breach by way of a damages award would be an excessive reflection of the applicable functional objectives that have already been adequately served and would not, therefore, be a “just and appropriate” remedy under s. 24(1).
Analysis and Conclusions
Is this an appropriate case for summary judgment?
[24] Although Rotondo has filed an affidavit wherein she disputes the evidence of the undercover officers and claims no knowledge of the items found at the search of the business (which items were later excluded at trial), I conclude that there is no issue requiring a trial on the issue of the existence of reasonable and probable grounds to arrest, detain and charge Rotondo with the offences in issue. There is no dispute that Groulx had all of the information set out in paras. 4 to 8 at the time of laying those charges.
Is expert evidence required on the standard of care?
[25] I conclude this was a nontechnical investigation within the knowledge and experience of the ordinary person and that no expert evidence is required on the standard of care.
[26] I further conclude that Groulx had reasonable and probable grounds to suspect that Rotondo was operating a bawdy house and of living off the avails of prostitution. At the time of Rotondo’s arrest, the police officers’ search warrant had not yet been quashed, and there was no reason to disregard any information obtained under the warrant. The warrant revealed extensive evidence of sexual activity at the massage parlour, which was corroborated by the various complaints received by the police in 2005 as well as the conversation between Rotondo and the undercover police officers. In the absence of rigid criteria to determine probable and reasonable grounds, there is little doubt that the police had the requisite grounds to arrest Rotondo.
Were Rotondo’s Charter rights breached?
[27] While Justice Dempsey may have ruled that the search warrant should not have been obtained owing to the negligent representations of the affiant, he did not rule on the issue of reasonable and probable grounds for arrest. There is no issue of res judicata in deciding whether the police had reasonable and probable grounds to arrest Rotondo.
[28] Res judicata is a bar to the re-litigation of the same dispute among the same parties.[^4] The issue before Justice Dempsey involved Rotondo who was the accused at the time, and the Crown. The dispute in the current matter is between Rotondo and the Ottawa Police Service. As the parties are not the same, there is no issue of res judicata.
Charter Breaches and Compensatory Damages
[29] As noted in Vancouver (City) v. Ward, a Charter breach will give rise to damages under s. 24(1) under a four step test.
[30] Although there was finding of a Charter breach with respect to Rotondo’s residence, she has failed to satisfy her onus to demonstrate that damages would serve the objectives of compensation, vindication of the right, or deterrence of future Charter breaches. As for the countervailing factors, Rotondo has already received a significant remedy in the form of the dismissal of serious criminal charges.
[31] I have noted two decisions that have held that the exclusion of the evidence as a result of a Charter breach, leading to the dropping or dismissal of charges, was a remedy in and of itself. In fact, notwithstanding the fact that several Charter rights were breached in Abboud, no damages were awarded. I make the same determination here.
[32] I agree with and adopt the reasoning of this Court in Abboud. Having concluded that the Defendants had reasonable and probable grounds to arrest and detain her, there can be no successful claim for damages under ss. 7 and 9 of the Charter.
[33] Having made these determinations, there is no need to consider the alternative arguments put forward by the Defendants. The Defendants’ request for summary judgment is granted.
[34] If the parties are unable to agree as to costs, the Defendants are to provide me with their costs submissions not exceeding 10 pages in length within 20 days of the release of this decision, and the Plaintiff, 20 days thereafter.
Mr. Justice Robert N. Beaudoin
Released: December 23, 2016
CITATION: Rotondo v. Ottawa Police Services Board, 2016 ONSC 8101
COURT FILE NO.: 08-CV-41210
DATE: 20161223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEANA ROTONDO and CHANDRA SAUNDERS
Plaintiffs/Responding Parties
– and –
OTTAWA POLICE SERVICES BOARD and OTTAWA POLICE DETECTIVE MARTIN GROULX and OTTAWA POLICE CONSTABLE DAWN NEILLY and OTTAWA POLICE CONSTABLE VAN NGUYEN and OTTAWA POLICE CONSTABLE ELI EDWARDS
Defendants/Moving Parties
REASONS FOR decision
Beaudoin J.
Released: December 23, 2016
[^1]: Hryniak at para. 5
[^2]: Cuthbert v. T.D. Canada Trust 2010 ONSC 830, at para. 12; Sweda Farms Ltd. v. Egg Farmers 2014 ONSC 1200, at para. 32
[^3]: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at para. 68, Charlton v. St. Thomas Police Services Board, 2009 25977 ( ON SC) at para. 35; Wong v. Toronto Police Services Board, 2009 66385 (ON SC), 2009 66385, 2009 CarswellOnt 7412 (S.C.), at para.75; Grann v. Thunder Bay Police Services Board, 2015 ONSC 438 at paras. 22-24
[^4]: Hoysted v. Federal Commissioner of Taxation (1921), 1925 607 (UK JCPC), 29 C.L.R. 537 at 561 (H.C.A.), per Higgins J.: