COURT FILE NO.: 2726/11

DATE: 2018/08/08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michael Gordon Pyle

Margaret A. Hoy, for the Plaintiff

Plaintiff

• and -

Regional Municipality of Niagara Police Services Board, Timothy Vince, Andrea Hill, Linda Haday and Nicholas Hawrylshyn

Mickey Cruickshank, for the Defendants

Defendants

HEARD: June 11-15, 18-21, 2018

The Honourable Justice D. L. Edwards

JUDGMENT

Overview

1Mr. Michael Gordon Pyle is suing the following officers of the Niagara Regional Police Services Board: Andrea Hill, Nicholas Hawrylshyn, Linda Haday and Tim Vince, as well as the Niagara Regional Police Services Board (“NRPSB”). He alleges that the defendant officers breached their standard of care that they owed to Mr. Pyle during their investigation which resulted in him being wrongly incarcerated for 78 days.

2In the alternative, he alleges that his Charter rights were violated.

3He seeks damages for this negligence and breach of Charter rights.

4Mr. Pyle was arrested on July 10, 2009 on several charges arising from an alleged incident on July 1, 2009 at the home of Alicia Sinan and Kurt Grau. He was denied bail and remained in custody until the charges were withdrawn on September 26, 2009.

5The defendants deny that they were negligent, and they deny that Mr. Pyle’s Charter rights were breached.

6For the reasons that follow, I dismiss the plaintiff’s action.

Factual Synopsis

7On July 1, 2009 a 911 call was placed from the Grau residence. Officer Hill responded to that call and attended at the residence of Alicia Sinan and Kurt Grau on Rykert Street in St. Catharines. Mr. Kurt Grau advised her that after a few friends left their apartment, he and his partner, Alicia Sinan, noticed shaving cream writing on the walls of their bathroom. They said that they checked with their friends who denied doing it. Shortly after this, Mr. Grau realized that the exterior door at the base of their stairway may have been left unlocked, so he opened his apartment door to go down to check on that door.

8Mr. Grau said that once he opened the door he was confronted by Mr. Pyle who was just finishing writing “Die Bitch” onto the wall opposite to the apartment door. He quickly closed the door to get a knife and then returned and opened the door. At that point he said that Mr. Pyle was just exiting the exterior door at the base of the stairs. He gave chase, but lost Mr. Pyle around Union Street.

9As a result of this information, Officer Hill said that she formed reasonable and probable grounds to arrest Mr. Pyle. She attempted to locate Mr. Pyle at his residence, but she was unable to do so.

10The incident was assigned to Officer Haday as lead investigator. She made arrangements to have Mr. Grau come into the police station for a video interview which, for various reasons, did not occur until August 25, 2009. Ms. Alicia Sinan declined to give a statement.

11Mr. Pyle was arrested on July 10, 2009 by Officer Hawrylshyn. That same day Officer Vince conducted a video interview with Mr. Pyle. Mr. Pyle denied the charges and ranged from saying that he did not know where he was on July 1, 2009 to he probably was with his friend, Paul Cameron.

12A video interview of Kurt Grau was conducted on August 25, 2009 and on the same day a photo lineup was conducted with Mr. Grau. During the interview Mr. Grau stated that he was 110% certain that the individual that he saw that night was Mr. Pyle. During the photo lineup Mr. Grau failed to identify Mr. Pyle in accordance with the required protocol, but he stated several times that he felt that the first photo that he viewed, (which was in fact Mr. Pyle’s photo), was probably the individual who he saw the night of the incident.

13Mr. Pyle did not obtain bail and remained in custody from July 10, 2009 until September 26, 2009 when the charges were withdrawn.

Issues

14The primary allegation by the plaintiff was that of negligence by the defendants. I will analyze that issue first, and then proceed to analyze the allegation of breach of Charter rights.

15With respect to the allegation of negligence by the police, the following issues arise:

a. Did the defendant owe a duty of care to the plaintiff?

b. If so, were the defendants negligent in their investigation of this matter?

c. If so, did that negligence cause Mr. Pyle to suffer any damages?

d. If so, what are those damages?

e. Did Mr. Pyle mitigate his damages?

16I will now comment upon the law regarding the standard of care owed by the police to a suspect of an investigation.

Standard of Care

The Law

17It is recognized that there is sufficient proximity between a police officer and a suspect to establish a prima facie duty of care. Hill v. Hamilton-Wentworth Regional Police Service Board, 2007 SCC 41, [2007] 3 S.C.R. 129.

18Part of the analysis of negligence is a determination of the appropriate standard of care. As the Supreme Court stated at paragraph 73 of Hill v. Hamilton-Wentworth Regional Police Services Board:

The appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in a police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided 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 maybe 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 or deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired result. Rather it accepts that police officers, like other professionals, may make minor errors or errors in judgment which may cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore do not breach the standard of care.

19Therefore, the standard of care is what a reasonable police officer would do in similar circumstances.

20Also, it is the standard of care in 2009 that is relevant. The police officers’ conduct must be judged by the standard of care in 2009, not the standard as of the date of the trial.

The Evidence

21The evidence was obtained over a 9-day trial. The plaintiff’s witnesses included the plaintiff and his father, William Eugene Pyle, as well as Mr. Pyle’s criminal counsel, Geoffrey Hadfield, and Dr. Maxwell Wheeler.

22All of the named defendants testified: Officer Hill, who was the first officer on the scene the night of the complainant; Officer Hawrylshyn, who was the arresting officer; Officer Haday, who was the lead investigator; and Officer Vince, who performed a video interview of Mr. Pyle.

23Two experts testified: Bernhard Wallhenzien, on behalf of the plaintiff, and Michael Davis, on behalf of the defendants.

24I will first summarize the fact evidence.

Fact Evidence

Michael Gordon Pyle

25Mr. Pyle advised me that he is known as Gordon Pyle. He was born in September of 1974. He has been married for 7 years. Since graduating from high school he has been employed in many jobs with his main training in industrial hydraulics and welding. His line 150 income has ranged from $49,245 in 2006 to a low of $2,633 in 2009 to $45,707 in 2014.

26He said that in July of 2009 he was unemployed and living with his high school friend, Paul Cameron, and Paul’s wife and child. Just prior to that, he lived in a rooming house, but he had an altercation with a roommate and felt he should leave.

27He testified that he first met Rebecca Sinan in 1994 when she was 17. She moved in with him within 3 weeks. Her mother was upset, and, according to Mr. Pyle, has hated him since that time. He said that they had 2 good years together and then a troubled on and off relationship. Mr. Pyle said that Rebecca would threaten to call the police, but then want to get back together. He said that one time he caught her flirting with a neighbour, so he tried to throw her out. She called 911, said “help he is beating me up”, and then hung up. 911 called back, and she went outside. He followed her and found her beating his car with a shovel, so he grabbed the shovel away from her. He said that at that moment a cruiser showed up. He told the officer that “I know that this looks bad”, and he dropped the shovel. He was taken downtown for a cooling off period, but not charged.

28Mr. Pyle said these types of incidents continued over the years. He was charged 3 or 4 times by Rebecca with criminal harassment. All, but one charge, were withdrawn. He said he pled guilty to one charge because they were back together, and he did not want her to get into trouble.

29He said that this went on for 13 years. In around 2002/3 Rebecca moved out west, but then called him because she wanted to come back and get together. Mr. Pyle said that he sent her money to come back, but she did not come back. Then she called and asked that he come out to get her. He said that he never got an address from her, but just a phone number in Edmonton which turned out to be a store. When he got to Edmonton, he called that number and was told that the police were looking for him. He stated that he returned home, where he found the police were waiting for him. He was charged with criminal harassment, but those charges were withdrawn.

30In examination-in-chief Mr. Pyle said that in 2004 he moved out west to get away from Rebecca and has not had any contact with her since then. However, in cross- examination he stated that he still receives birthday wishes from her and that she came to visit him on Front St. in Thorold.

31In January 2009 he was placed on probation with respect to an uttering threat charge. Mr. Pyle said that Rebecca’s boyfriend, Tim Bruinsma, jumped him from behind a bush and attacked him. Mr. Pyle said that he later called Tim and threatened him. This event occurred in December 2008.

32He said that on May 21, 2009 he and his friend Paul were mountain biking in Short Hills. When they got back, they were cleaning their bikes when a police officer came up and accused him of shouting obscenities at Alicia Sinan who is Rebecca’s younger sister. He said that they accepted Paul’s alibi and then left.

33He testified that once he was in the Thorold Detention Centre, he saw the medical professionals there and was prescribed medication for depression and in order to sleep. He said that these were similar medications to those that he was taking prior to incarceration.

34During the period from January to July 2009 Mr. Pyle said that his anxiety was unchanged. He had been unemployed since May 2009 and was worried about getting a job and he was living in Paul’s basement. He said that prior to his incarceration at the Thorold Detention Centre on May 6, 2009, his family doctor, Dr. Tatzel referred him to Dr. Wheeler who is a psychiatrist. Mr. Pyle testified that he has suffered from depression since 2001. He said that in late 2008 he had a psychiatric assessment at St. Joseph’s.

35On July 10, 2009 Mr. Pyle said that he was walking to a store from Paul’s house around 10 am when a cruiser came up to him, and the officer arrested him. He said that he was not told why he was being arrested. He was held in a cell in St. Catharines until around 3:30 pm when Officer Vince interviewed him and told him what he was charged with. Prior to this interview he met with duty counsel.

36Mr. Pyle testified that Officer Vince told him he was charged with break and enter of Alicia Sinan’s home on Rykert Street, as well as breaches of his probation. In his video interview he acknowledged to Officer Vince that he was charged with two breaches of his probation. Also, during that interview Mr. Pyle does not object when Officer Vince tells him that the arresting officer told him what the charges were.

37Initially Mr. Pyle told the officer that he did not know where he was on the evening of July 1. He also said that he was not sure whether he was with his friend Paul or not. He requested that the officer call his parents to act as sureties and also to call his friend Paul.

38He said that he was not granted bail and was held in the Thorold Detention Centre for 78 days. He said that during that time he saw individuals assaulted. As well, someone jumped him and stole his mattress away. He said that he was punched, and his tooth was chipped. However, the records show that he reported the chipped tooth in 2008, but he did not report it in 2009. During that time, he said that he was depressed and was prescribed medication for depression and in order to sleep. He found the entire time in jail to be very stressful.

Geoffrey Hadfield

39Mr. Hadfield represented Mr. Pyle on the December 2008 criminal charges, as well as the July 2009 criminal charges.

40His recollection from the trial in January 2009 was that after Rebecca testified, the Crown withdrew the criminal harassment charge in relation to her because she had great trouble being consistent and her credibility was the major issue in the trial. Mr. Pyle then pled guilty to the threatening charge in relation to Tim Bruinsma, but the withdrawal of the other charge was not part of a plea bargain.

41Mr. Hadfield understood that the Crown was directing that a notation be placed on file with respect to any further complaints from Rebecca and that they should be scrutinized carefully with caution.

42He testified that after reviewing the bail hearing report for the July 2009 charges, he concluded that the Crown was opposing release. This was a domestic type of charge, there were indications of potential flight risk, and recently, in Canada, an individual who was released on bail had killed twice while on bail.

43Based upon the information there and the law at the time, he felt that only if Mr. Pyle had a strong surety could he be released on bail. His recollection is that Mr. Pyle’s parents were not available, perhaps out of town. There was some bar to them acting as sureties. It was not that they did not want to do it.

44He testified that because of his opinion that bail could not be obtained, he managed to get an early trial date of October 6, 2009. However, around the 20 or 21 of September, the Crown, Grace Pang, left a message on his answering service asking him to call because it was an emergency. He had the impression that she just received some disclosure that changed the complexion of the case and he was advised that the eyewitness had failed to identify Mr. Pyle from a photo lineup. His view was that Ms. Pang was so concerned that she made arrangements to have the matter brought forward to the next day. She obtained the judge’s order to have Mr. Pyle brought to court, at which time the charges were withdrawn. His impression was that she was unhappy with the conduct of the police investigation.

William Eugene Pyle

45Mr. William Eugene Pyle is Michael Gordon Pyle’s father.

46He testified that the first that he learned that his son was in jail with respect to the July 2009 charges was when Paul Cameron called him on July 10 2009, and told him. Paul also said that he would attend the bail hearing the next day. Mr. Pyle said that he was in town when his son was arrested in July 2009, but he did not attend court this time because no one asked him.

47Mr. Pyle Senior said that while his son was in jail, he called his son. He said that his mental state was one of being worried and afraid of the other inmates. He was very agitated during this time, but once he was out of jail he was back to his “normal happy go lucky” self.

48He said that he never met or talked to Alicia, but he knew that she was Rebecca’s younger sister. He confirmed that his son had a relationship with Rebecca starting in 1994 and it was on and off again. He did not know when it ended. He said that he had more than 15 unpleasant encounters with Rebecca. He described an incident when his son was living at their house because they were acting as sureties. His son’s cell phone rang 15 times, but his son did not answer it. Then Mr. Pyle Senior’s home line rang with an Edmonton phone number. He said that Rebecca was living in Edmonton at the time. He answered the line, but no one responded so he hung up. The phone rang again, and he answered it and again no one answered, so he called 911. Two police officers came to their house and while they were there the phone rang again so Mr. Pyle Senior answered it, but no one responded. The phone rang again so the police officer answered it and spoke to the person on the other end of the line. He told her to stop calling.

49He testified that they continued to get over 100 hang up calls, so after discussing with the police they changed their number.

50He also said that in 2000 his son and Rebecca went skiing up north. When they returned, Rebecca charged him with kidnapping and his son was arrested. Mr. Pyle Senior was able to get a copy of the ski rental and credit card receipt that showed that Rebecca had rented the skis and the charges were dropped.

51He said these encounters started shortly after Mr. Pyle and Rebecca got together and ended in July of 2009.

52Mr. Pyle Senior acknowledged that he was unaware of Mr. Pyle’s criminal background. He did not know about the two convictions related to Rebecca and her family. He was unaware that his son spent an extended time in jail in 2008. He was aware that he visited him at the Detention Centre, but he could not recall when that was. He had no knowledge of whether Rebecca was involved in the various convictions that were recorded on Exhibit 25. He was unaware of any charges that were laid in Saskatoon and Edmonton.

Dr. Maxwell Wheeler

53He is a practicing psychiatrist in St. Catharines. Dr. Tatzel referred Mr. Pyle to him for a psychiatric assessment. Dr. Tatzel, in his referral letter, advised as to the medication that Mr. Pyle was taking and voiced the concern about depression and anxiety.

54Dr. Wheeler testified that he saw Mr. Pyle on May 6 2009 for an initial interview, but Mr. Pyle failed to show for a second interview. As a result, Dr. Wheeler sent Dr. Tatzel a report which summarized what Mr. Pyle told him during that interview. Dr. Wheeler made no diagnosis, nor prescribed any treatment plan. Dr. Wheeler testified that he did not see Mr. Pyle again with respect to any further treatment.

Andrea Hill

55Andrea Hill is a police constable with the NRPSB, first hired by the Service in 2008. Prior to that she was a police officer in Durham.

56She stated that on the night of July 1, 2009, at 23:00 hours, she was dispatched to 93 Rykert Street as a result of a 911 call.

57She testified that she attended at the residence and then spoke with Kurt Grau and Alicia Sinan, who live there together with their two-year-old child. She was advised that on July 1 they had three male friends and a cousin over, and that after their friends left, at around 9:15 pm, they discovered shaving cream on the shower walls which appeared to be placed there as writing. Alicia requested that Kurt check the front door to ensure that it was locked and at 22:20 hours Kurt opened the front door and observed Mr. Pyle on the landing writing the words “Die Bitch” on the wall across from their front door. He told her that Mr. Pyle took his hand away from the wall and appeared to grab something in his waistband which Mr. Grau thought might be a knife or a weapon. Mr. Grau slammed the door shut and then reopened it and chased after Mr. Pyle. He said that he lost sight of him and thought that he might have gotten onto a bike.

58She said that Mr. Grau told her that he had never met Mr. Pyle, but that he had seen many photos of him and was 100% certain that it was him. He said that he viewed those photos on Facebook. Officer Hill did not ask when he last looked at a photo on Facebook of Mr. Pyle. She did not ask him specifically how long he viewed Mr. Pyle before closing the front door.

59She testified that she wrote that information into her duty book and intended to have Mr. Grau sign it. However, later she was advised that Officer Haday would be doing a video interview with Mr. Grau, so she did not get his signature. She said that she did not have the time to do an intensive hour-long interview at that time and she knew as a matter of common procedure that there would be long video interviews which would deal with matters in more detail. Alicia Sinan and Kurt Grau both agreed to do so, but Mr. Grau indicated that he had a job and child care issues. As well, she said that she needed to attempt to find Mr. Pyle, so she and two other police officers went to the last known address of Mr. Pyle, at around midnight and no one answered the door.

60Officer Hill stated that she was also the scene of crime officer (“SOCO”). She has special training for this task both from Durham and Niagara. This involved learning how to gather evidence such as DNA evidence, fingerprint evidence, and photographic evidence. She said that she took a number of photographs, starting with the exterior, and then moving inside to the stairway stairwell and the interior of the apartment. She did not photograph the exterior door lock or determine whether it locked automatically. She said that there was no damage to the lock.

61She advised that she checked for locations where she could potentially dust for fingerprints, but she concluded that for various reasons it was not useful to dust for fingerprints. For example, the shaving cream can was sticky, as was the area around the writing on the wall. Kurt and Alicia advised her that they had touched the doorknobs for the exterior doors, as well as the door to their apartment several times and this would have wiped out any fingerprints left by anyone at an earlier time. Her training with respect to the gathering of DNA information was limited to collecting blood samples and there were no signs of any blood. She also stated that there were no signs that the perpetrator had left behind saliva or other bodily contents. She said that, had there been such signs, she would have called in the forensic specialist. She also testified that the analysis of handwriting was not part of her training. She took photos of the handwriting on the wall and sent it onto the forensic unit, as that was their area of expertise.

62Officer Hill testified that she did not ask Mr. Grau how much he was drinking or whether he had taken any illegal drugs, as he had no signs of impairment. She also did not ask for the names and address of the people who had been over partying with Kurt and Alicia. Nor did she get the names of the other two tenants in the building. She understood that these tenants accessed their units through a side door.

63She said that she felt that she had reasonable and probable grounds to arrest Mr. Pyle for break and enter, commit mischief, criminal harassment, and two breaches of probation. Because they were unable to locate him at the time of the incident, she felt that it was appropriate to obtain an arrest warrant. At that time she was unaware of the history of court proceedings involving Mr. Pyle and Rebecca Sinan, who is Alicia’s sister.

64She testified that she was involved in putting the basic information into the bail report form, and that then Officer Haday put other information, such as his criminal history. Officer Hill said that she was unaware of Mr. Pyle’s employment history, mental issues, or Paul Cameron. She noted that Mr. Pyle was a known drug user because of his criminal history in 2002 being charged with possession. She said that is a standard practice to note a person as a known drug user if they have a prior conviction for possession of drugs. She also noted that there was increasing violence from Mr. Pyle and suggested that the words “Die Bitch” is a threat of violence.

65Officer Hill testified that prior to her completing her shift for the day, her Staff Sergeant advised her that Officer Haday would take over as the lead investigator as this was a domestic violence matter. At 6:00 am she ended her shift and was on vacation for 12 days.

66Even though she was on vacation, on July 3, 2009 from her residence she called Mr. Grau to make sure that Officer Haday had followed up to make arrangements for the video interview. He told her that arrangements were made for when Officer Haday returned to work after her vacation or leave. She said that she had no further involvement on this matter after that.

Nicholas Hawrylshyn

67Constable Hawrylshyn is a constable with the NRPSB and has been so for 10 years. He was working as a police officer on July 10, 2009. He stated that he was dispatched to go to 30 Parker in St. Catharines to determine whether Mr. Pyle was there and, if so, to arrest him pursuant to a warrant.

68Once he got to 30 Parker, he spoke to a female who advised that Mr. Pyle was not at home and had gone to the bank. He was dispatched to another call. When he was cleared, he returned to 30 Parker to make another effort to locate Mr. Pyle. There was no answer, so he left a message for Mr. Pyle to call him. He said that as he left the residence he located Mr. Pyle walking on Parker Street. He recognized him from the mug shot that the officer had on his computer. Mr. Pyle identified himself and was arrested.

69Constable Hawrylshyn testified that he handcuffed Mr. Pyle, searched him, and placed him in the rear of the cruiser. He read him his rights and advised him of his right to counsel. Constable Hawrylshyn said that he told Mr. Pyle that he was being arrested for outstanding charges of break and enter, mischief, and two breaches of probation. He gave that evidence by referring to notes that he just disclosed the evening prior to his testimony.

70He identified the computer summary of radio transmissions showing what he was doing and when in relation to the arrest of Mr. Pyle. That is located at Exhibit 13.

71He said that he brought Mr. Pyle to #1 Station and there he was processed. He signed the arrest warrant to indicate that he had carried out the arrest. Constable Hawrylshyn said that he had no history with Mr. Pyle. He was only aware that he was “arrestable” and that this was a follow-up to a previous incident. He said that he advised Officer Vince of the arrest, because it was a domestic incident and Officer Vince was the domestic investigator on duty.

72Officer Hawrylshyn produced to defence counsel on the afternoon prior to his testimony additional notes from his duty book. These were sent to the plaintiff’s counsel that evening, but she did not have an opportunity to review them prior to the morning of the officer’s testimony. The officer completed his evidence in-chief and then the trial was adjourned to allow the plaintiff’s counsel to speak with her client, who was home ill, and her expert. She began her cross-examination after that adjournment.

73Officer Hawrylshyn acknowledged that he made an error when he first produced his notes for the trial and did not see the other notes. He stated that he had requested his duty notebook from archives prior to the examination for discovery but did not receive it in time. It was only when he reviewed the duty notebook the day that he was scheduled to give evidence at this trial that he discovered the additional notes. He said that when he gave evidence at the examination for discovery, he thought that he had produced all of his notes relevant to this incident and he relied upon those notes when he was answering questions.

74He agreed that nowhere in the notes that he originally produced, or in the supplemental notes, did it state that he advised Mr. Pyle why he was being arrested----in other words--- what charges were laid against him. It does note that he was advised of his right to counsel and he was cautioned. He stated that because the standard wording in those instructions has a blank for the charges against the person, he is certain that he advised Mr. Pyle of the charges against him. He also stated that it is his typical procedure to advise people what the charges are when he arrests a person. He also acknowledged that in the examination for discovery he stated that he did not recall whether he told Mr. Pyle what charges were against him. He stated that in reading the additional notes, which list the charges, he has an independent recollection of a conversation with Mr. Pyle in which he advised Mr. Pyle as to the charges. He agreed that he should have noted in his duty book that he advised Mr. Pyle of those charges.

75Officer Hawrylshyn agreed that his notes do not indicate what Mr. Pyle was wearing when he was arrested. His recollection was that he had a hat on and was wearing a white shirt. His head was shaved. He said that he had no further involvement in this matter.

Tim Vince

76Detective Vince has been employed by the NRPSB for almost 30 years and at the time of the incident was assigned to the domestic pilot project.

77He said that he was first aware of the incident on July 10, 2009 when he was working days and Mr. Pyle was arrested. Because he was working and had the time, he interviewed Mr. Pyle that day. It was a priority to interview individuals who were arrested as soon as possible.

78He said that he prepared himself for the interview by reading the prosecution summary, prior reports, and Mr. Pyle’s criminal history. He agreed that he scanned the reports, but he had not great familiarity with the reports.

79He testified that after the interview he prepared the DVD for disclosure by making copies and dropping it off in the staff sergeant’s office to be passed on to the Crown. There was also a brief summary so that one would be aware that the interview had been conducted. This report is dated July 10, 2009. He said that was the normal way to provide disclosure to the Crown. He agreed that in certain circumstances he has contacted the Crown about new developments in cases.

80Officer Vince informed Mr. Pyle of the charges against him and said that this was his normal practice. Mr. Pyle advised him that he had seen duty counsel. He did not know one way or the other whether Mr. Pyle knew about his charges before he spoke to duty counsel, but Officer Vince felt that Mr. Pyle did not appear to be shocked by the information.

81He said that he thought that Mr. Pyle’s denial did not contain anything that was capable of independent verification. His alibi was almost an afterthought. Mr. Pyle said that he did not know where he was that day, but he may have been with a friend. There was no detail and he vacillated by saying he may have been there, but he had no idea where he was that day. Officer Vince felt that Alicia and Mr. Grau had no motivation to lie and he trusted their actions. He agreed that Mr. Pyle in general conversation mentioned a previous occasion in May when he was with Mr. Cameron and the police investigated, but no charges were laid.

82Detective Vince stated that he thought that there were reasonable and probable grounds to arrest. He was about 75% convinced that the offence happened. He thought that reasonable and probable grounds were in the 50 to 60% range. His assessment was that he disbelieved Mr. Pyle.

83He said that he called the parents’ home, but no one answered the phone, so he called Paul Cameron, who advised him that he would call Mr. Pyle’s parents, or he would attend the bail hearing himself. He did not ask Mr. Cameron about the potential alibi because that was not the purpose of his call. He called Mr. Cameron because he told Mr. Pyle he would do that.

84He said that once he went off shift he had no further investigatory involvement in this matter.

85He stated that whether he would look at an interview of an accused by another officer if he was the lead investigator would be dependent upon many factors. He agreed that if he were the lead investigator in this circumstance he would like to think that he would look at the DVD of the interview, but he was not sure that he would have.

86He said that there is no way to flag or alert as to significance of a report such as a follow-up. He was unsure whether follow-up reports went to the Crown or not. He checked this follow-up on July 26 and deleted it from his electronic work queue.

87He said that he did not direct anyone to investigate the alibi because he did not think that it was a viable alibi. If he thought it was a viable alibi, he agreed that it should have been followed up.

Linda Haday

88Sergeant Haday has been employed with NRPSB since 1991 and became a sergeant in 2013. In 2009 she was deployed to the domestic violence unit. She said that at that time there were 4 domestic violence investigators, one assigned to each platoon. She had worked in that capacity since 2006. She said that for the most part, once a case was assigned, it remained the investigator’s responsibility, but that an investigator might ask other investigators to assist for small things. At her discovery she said that a lead investigator might ask for others to assist.

89She agreed that she has a duty to investigate thoroughly and to disclose to the Crown in a timely manner.

90She produced part of her duty book notes as part of the disclosure. While preparing for the trial, she reviewed her videotaped interview with Kurt Grau and saw that notes were made during that interview. She re-examined her notes and located a file folder that contained 5 pages of notes, as well as having a notation on the file folder cover. I allowed her to refer to portions of those supplemental notes to refresh her memory as she had an independent memory of the incident. I was satisfied that the notes generally reflected what other disclosure contained.

91She said that on July 2, 2009 Officer Hill spoke to her about the incident as her staff sergeant asked her to become the lead investigator for it. She reviewed some prior reports and was aware that there was some history between Mr. Pyle and the Sinan family. She was aware that Mr. Pyle and Rebecca Sinan had an intimate relationship. Because of General Order marked as Exhibit 7, she said that the incident with Mr. Pyle was classified as a domestic incident and governed by that Order. She said that in domestic situations, if the police have reasonable and probable grounds, it is mandatory to lay the charge.

92She testified that Officer Hill originally had reasonable and probable grounds to arrest Mr. Pyle for break and enter, mischief, and two breaches of his probation. She prepared the prosecution summary which outlined the charges. After reviewing some reports, she added criminal harassment charge for the May 2009 incident. She agreed that no charges were laid following the May 2009 incident because of conflicting stories. She said that in her opinion Rebecca’s relationship with Mr. Pyle was not directly related to the July charges because that incident involved Alicia, and that Rebecca’s credibility was not relevant because she was not involved in this incident.

93She testified that after speaking to Officer Hill, on July 2, 2009 at 4:30 pm she called and spoke to Alicia, and then Kurt Grau on the phone. She did not ask either of them about the 911 call. She did not separate them, as she was speaking with them on the phone. She received a synopsis of the events from the eyewitness, Mr. Grau. She understood that day they had had friends over, and after they left, Mr. Grau and Alicia realized that the exterior front door at the base of the stairway may have been left unlocked. Mr. Grau told her that he went to check and when he opened his apartment door and came face to face with Mr. Pyle who was in the landing and just finishing writing “Die Bitch” on the wall opposite to the door. He thought Mr. Pyle was reaching for a weapon on his waistband so he shut the door and got a knife. When he came back and opened the door, Mr. Pyle was just exiting the main door below. He gave chase and lost him on Union Street. She agreed that she did not ask Alicia about any events or complaints that occurred prior to July 2, 2009. Nor did she did contact the people who had been at the house to follow up with them on their stories.

94She said that Mr. Grau described Mr. Pyle as wearing dark blue or black pants, with matching baseball cap, a scruffy face with a goatee. He said that he identified Mr. Pyle because he had seen new and old photos of Mr. Pyle on Facebook and also from his uncle, who had been a friend of Mr. Pyle’s. She said that they ended the call with a plan for Mr. Grau to come in for a videotaped interview. She did not ask him when he viewed any of those photos.

95Her notes indicate that Mr. Grau came down to the station on July 2, but left without being interviewed. She said that a date of the interview was scheduled for August 12 because of her schedule and his schedule. She said that Alicia refused to provide a statement, and said that she was frightened of Mr. Pyle. Officer Haday noted that the General Order states that not having a statement does not prevent the laying of a charge.

96She said that next she prepared a prosecution summary which included details of Mr. Pyle’s background including criminal history. She also prepared a bail summary report in which she recommended that he be detained. She put the current charges in the report and noted that there was increasing violence and erratic behaviour by Mr. Pyle. She strongly opposed release. She reviewed various reports, including a CPIC search. Because he was listed as wanted in two western provinces, she felt it appropriate to state that he was a flight risk and that he was known to reside in western Canada. She advised the Crown that he resided at 30 Parker, St. Catharines, but she had no knowledge of when he moved back to St. Catharines.

97She said that at the time, she was unaware that Rebecca’s evidence in-chief was rejected for inconsistency and the charges withdrawn by the Crown on a previous occasion. She recalled reading a report where Mr. Pyle threatened harm to himself and for that reason she noted that he was a suicide risk. She agreed that she did not speak to the officers involved in the May 27 incident, but did read their report, and included that report in the Crown brief. That prosecution summary at page 18 included the notation that Mr. Pyle said he might have been with his friend at the time of the incident.

98Officer Haday stated that because of scheduling issues, they set a date of August 12 for Mr. Grau to come in for a video statement. She said that she was on holidays for two blocks of two weeks in July and August and he had child care issues. He did not attend on August 12, so a new date of August 17 was set. He did not appear that day, so August 25 was set for the interview. He attended and did a videotaped interview at that time. She agreed that she wanted to do the video statement within a couple of days of the incident, but she was unable to do so.

99She said that she was not concerned about the timing of the interview because Mr. Grau’s statement to Officer Hill and his telephone statement to her were consistent, as was his 911 call. The more formal interview would provide more details. She agreed that Officer Hill’s statement was not signed by Mr. Grau. She agreed that she did not attend the residence or interview Mr. Grau or Alicia between July 10 and the August 25 about the incident.

100Officer Haday testified that the same day, Mr. Grau undertook a videotaped photo lineup. The lineup followed the General Order. Mr. Grau reviewed 12 photos. The first photo was Mr. Pyle, and Mr. Grau did not identify him when he looked at that photo, but he spent almost 2 minutes looking at that photo. As he looked at the other 11 photos Mr. Grau began saying that he thought that Mr. Pyle’s photo was the first one that he looked at. She agreed that Mr. Grau said several times that it was probably him, but he was not certain. Officer Haday stated that, even after the photo lineup, she felt that she had reasonable and probable grounds for the charges. In her interview with him, he said that he was 100% sure and that Mr. Pyle’s image was burned into his head.

101She said that she recalled disclosing the DVD of the photo lineup to the Crown shortly after the event, but she typically did not note when disclosure occurs. At trial she said that it was her practice that one of the first things she would do after a video interview would be to provide the DVD to the Crown. She prepared a report afterwards dated September 24, 2009. At her discovery, she testified that this report would have been provided to the Crown shortly after she prepared it. That report also documented that Alicia would not give a statement. She said that she did no further investigation on the incident between August 25 and September 24 2009.

102Officer Haday testified that the process of disclosure to the Crown began by her placing the DVD in an envelope in the disclosure tray. At some point, a person would take it over to the police bureau and the courthouse. She said that she never gets a receipt back from the Crown confirming disclosure. She stated that she never called or spoke with the Crown attorney about the lineup. However, she said that it was not her normal habit to call the Crown about disclosure.

103She said that Alicia called her, and Alicia told her that the charges were withdrawn around September 21 2009.

104She agreed that she never met or spoke with Mr. Pyle, Alicia, Rebecca Sinan, or Brenda Sinan. She also did not interview the neighbours or other residents of the dwelling. Nor did she speak with the guests that Alicia and Mr. Grau had that day. She did not feel that was necessary. She also never met Alicia, and only spoke to her on July 2, 2009 by phone.

105At her discovery, Officer Haday stated that she was not aware of an alibi up to September 25, 2009. Officer Vince interviewed Mr. Pyle on July 10, at which time Mr. Pyle stated that he might have been with Paul Cameron at the time of the incident. She said that it was mere coincidence that Officer Vince interviewed Mr. Pyle. He was working when Mr. Pyle was arrested, and it was a priority to interview accused persons following their arrest. She was also not working that day.

106She stated that she never investigated or asked others to investigate this alibi. She also did not read in Officer Vince’s report about a possible alibi. She did say that Officer Vince never mentioned in their conversation a viable alibi. She agreed that it was part of her duty to view the video interview and/or the report about it, and that she did not do so. However, she said that if Officer Vince thought it was a viable alibi, he would tell her, and she would investigate it.

107Officer Haday testified that the follow-up notation at page 101 of Exhibit 25 was simply an advisory from Officer Vince. The next follow-up on page 102 of the same exhibit was assigned to her and noting that a victim and witness statement was outstanding. It was due by September 30, 2009 and was submitted on September 26, 2009. She agreed that nothing in the report specifically flagged the matter as a priority to the Crown, but she stated that there was no way for one to flag or rank in importance a report.

Expert Evidence

Bernhard Wallhenzien

108Mr. Wallhenzien is a retired Detective Constable from the Toronto Police Service. I qualified him to provide expert evidence on police practices in 2009 with respect to the organizing and conducting of photo lineups, the preparation of documentation for Crowns for bail hearings and attendance at those bail hearings, and the investigation of a crime similar to those for which the plaintiff was charged.

109He joined the police force in 1982 and retired in 2012. He performed various positions ranging from foot patrol, the drug squad and CIB. He had experience in investigating crimes of all sorts excluding homicide. He has been involved in providing briefs to Crowns for bail hearings and involved in the preparation and conducting photo lineups.

110He examined the defendants’ disclosure and, based upon that disclosure, was of the opinion that there were blank spots throughout the investigation. The first blank spot is the fact that the statement taken by Officer Hill from Kurt Grau which did not appear to be in his words and was not signed by Mr. Grau. He criticized this and stated that normally the statement would be verbatim and signed by the witness.

111He questioned the fact that no fingerprints were taken from the scene and no analysis of Mr. Pyle’s handwriting and the writing on the wall of “Die Bitch” was undertaken. He acknowledged that he was not a handwriting analyst specialist. He agreed that specific types of handwriting were required to be analyzed and that he did not know whether graffiti was useful for analysis. He agreed that what could be done, such as handwriting analysis and fingerprinting, does not equate to the standard care, but did say that one should try to operate from the best standard.

112He stated that he is not a SOCO and has no training in that regard. He withdrew his allegation that Officer Hill did not do a proper job in her examination of the scene.

113Mr. Wallhenzien agreed that Officer Hill had reasonable and probable grounds to charge Mr. Pyle.

114He was critical of the fact that Mr. Pyle was not advised of the charges against him prior to seeing duty counsel. He acknowledged that during the video interview of Mr. Pyle, Officer Vince stated that the charges have already been read to Mr. Pyle and that he was cautioned. He agreed that Officer Hawrylshyn’s notes indicate that Mr. Pyle was read his rights and told why he was arrested. He also agreed that nowhere during the video statement did Mr. Pyle state that he was not told why he was under arrest.

115He said that there was no indication that police made attempts to locate Mr. Pyle prior to his arrest, with the exception of one visit to his residence before the arrest warrant was issued. Mr. Wallhenzien felt that more efforts to locate Mr. Pyle should have been undertaken prior to issuing the arrest warrant, such as leaving a business card at Mr. Pyle’s residence asking him to contact the police or more visits to his residence.

116There was also no explanation in the file why Mr. Grau’s video statement was not taken for seven weeks, until August 25 2009, nor why the photo lineup did not occur until then. He agreed that there was a notation in Officer Haday’s duty book that Mr. Grau had excuses and there were attempts to get him in for a video statement. He agreed that often in domestic situations witnesses are reluctant to come in for statements, but he said that Mr. Grau exhibited no such reluctance on the video.

117He testified that there was also no evidence in the file to document when and how the Crown was advised that Mr. Grau failed to identify Mr. Pyle during the photo lineup.

118Mr. Wallhenzien said that his best practice would be to interview the eyewitness, Mr. Grau, within one week, with two weeks being a maximum. He noted that the Niagara Regional Police Domestic unit acted as a team, so if Officer Haday was otherwise not available, that task should have been handed off to another team member. In his opinion, the earlier the statement was taken, and the photo lineup undertaken, the fresher everything would be in the witness’s mind.

119Mr. Wallhenzien stated that Officer Vince noted that Mr. Pyle told him during the video interview that he was probably with his friend, Paul Cameron, and yet there was no indication that any officer checked out this alibi. He agreed that Officer Vince’s notes indicated that he attempted to call Mr. Pyle’s parents, but got no answer and that he contacted P.C. friend who said that he would tell the parents and he or they would be in court the next day.

120He noted that when Alicia made allegations in May 2009, Mr. Cameron’s word that Mr. Pyle was with him, was sufficient for that officer to not lay any charges. He also testified that eyewitnesses who only have a fleeting glance in a potentially violent situation have difficulty identifying the person from a still photo. He also stated that the criteria for the photo lineup should have been more detailed so that the number of potential pictures that the officer would have to sort through to reduce to 12 photos would have been smaller.

121He testified about the police’s obligation to provide disclosure to the Crown. He said that the Crown would request many items, and as the police provided that information, the list would shrink. He said that there was nothing in the file to indicate that requests were put forward to Officer Haday to provide disclosure to the Crown and no reaction from her to a disclosure request. He said that a person who was in custody usually had priority to get disclosure complete. He was unaware of the disclosure procedures between Crown and police in Niagara.

122Mr. Wallhenzien criticized Officer Haday’s investigation with respect to its timeliness. Also, he thought that Mr. Grau should have drawn the sketch of the residence as he lives there. It would have created a clearer picture. The sketch did not show where Mr. Grau said that Mr. Pyle ran to. He had concerns about Mr. Grau’s testimony as he said that he only had a fleeting glance at Mr. Pyle, and then was distracted because Mr. Pyle’s hand moved to his waistband as if to grab a knife or some other weapon. His description of Mr. Pyle also varied from scruffy to not scruffy. He acknowledged that in the video statement Mr. Grau said that Mr. Pyle’s photo was burned into his head. Mr. Grau also said on the video that he had seen lots of photos old and new of Mr. Pyle on Facebook and also some from his uncle. He also agreed that it is possible for a person to be wearing a hat, but also to have hair visible. He agreed that Mr. Pyle’s video statement was consistent with Officer Hill’s notes of her interview with him.

123He also thought that it was odd that Mr. Pyle was charged with respect to the May 2009 incident when, in fact, it had previously been investigated and an officer decided to not press charges. He did not find anything in the disclosure that substantiated this charge. He acknowledged that the police standard for laying a charge is different than the standard for the Crown proceeding. He agreed that the police standard to lay a charge is reasonable and probable grounds to believe that someone committee the offence.

124He said that he saw no indication in the file why Officer Haday would mark this matter as high risk, but he did not know what the definition for high risk was for the Niagara Regional Police. He also felt this was not a domestic matter since Alicia and Mr. Pyle had no relationship. Domestic matters, he said, place a strong emphasis upon the safety of the complainant. He acknowledged that he had no specific training for domestic matters and did not serve on a domestic unit. However, he did review the Niagara Regional Police’s General Order and did not feel this was a domestic matter. He stated that he had no knowledge of how the Niagara Regional Police handled domestic matters. He agreed that under that General Order it was mandatory to lay charges for domestic matters. He acknowledged that Mr. Pyle was on probation on July 1, 2009 and was prohibited from contact with the Sinan family, including Alicia. He was aware of the previous conviction of criminal harassment and utter threats which were the reasons that he was on probation. He also agreed that Mr. Pyle had an extensive criminal background.

125In his opinion, once Mr. Grau did not identify Mr. Pyle during the photo lineup on August 25, 2009, the Crown should have been advised immediately and the charges withdrawn as soon as possible.

Michael A. Davis

126Mr. Davis was qualified to give expert opinion evidence on the standard of care for police. He had been a police officer with the Toronto Police Service from 1973 until 2005. Since his retirement, he has provided expert opinions on various matters to various groups and was qualified in British Columbia as an expert witness. He gave opinions about the investigation and actions of the police in this incident.

127He was of the opinion that Officer Hill acted reasonably with respect to her duties on this matter. She obtained a statement from the eyewitness, Kurt Grau. She neglected to get that signed, which he agreed was a minor error, but it did not affect the reasonable grounds to charge Mr. Pyle. She completed her duty as a SOCO and appeared to appropriately examine the scene for potential fingerprints.

128He concluded that the arrest by Officer Nicholas Hawrylshyn was undertaken as a reasonable police officer would act in those circumstances. He was directed to Mr. Pyle’s residence and when he was leaving he saw him on the street. He identified Mr. Pyle and then told him that he was under arrest for an outstanding warrant; he was advised of his rights and cautioned. He asked for duty counsel, so the officer left a message for the duty officer to contact him. Mr. Davis agreed that one could not tell from his notes whether Officer Hawrylshyn advised Mr. Pyle of the exact charges against him. However, he found no notation that duty counsel had spoken to an officer to find out what the charges were against Mr. Pyle and, in his opinion, it would be very unusual for a duty counsel to not request information on the charges if the accused indicated that he did not know what they were.

129He concluded that Officer Vince conducted the interview of Mr. Pyle appropriately. He felt that the alibi was just a suggestion as to his whereabouts because Mr. Pyle could not remember where he had been; he said that he was probably at Mr. Cameron’s home, but he was not sure. In his opinion it was not a viable alibi. It was more like guesswork to come up with something.

130He said that his opinion was that Officer Vince concluded it was not a viable alibi, and therefore not something that he had to investigate. He said that Mr. Pyle had 14 court appearances and at no time was there an indication that he advised the Crown or the court that he had an alibi. Normally, the lawyer would contact the Crown, and there was no indication that happened here.

131Mr. Davis was of the opinion that Mr. Pyle knew what his charges were prior to the video interview because during that interview Mr. Pyle made reference to the breaches of his probation charges. He did agree that during the interview Mr. Pyle did not mention that he knew what the other charges against him were.

132He concluded that Officer Vince’s role was complete after he interviewed Mr. Pyle and properly processed the interview DVD and his report. He had no further duty to investigate as this was not a file on which he was the lead investigator.

133Mr. Davis’ opinion was that Officer Haday appropriately conducted the interview of Kurt Grau. His opinion was that there were more details given during the video interview, but overall the evidence was consistent with what was told to the 911 operator, Officer Hill, and Officer Haday. He thought that the timing of the interview was reasonable because Officer Haday had already spoken to Mr. Grau and his statement was consistent with what he had previously told the 911 operator and Officer Hill. As well, there were day care issues and Officer Haday’s holidays that delayed the manner. However, in all the circumstances, the length of time was reasonable.

134He agreed that best practice would be for Officer Haday to review the reports of the interview of Mr. Pyle, but quite often a lead officer would not read everything that was forwarded to the Crown. He agreed that Officer Haday did not know of the potential alibi. His opinion was that after the interview, Officer Haday continued to have reasonable and probable grounds to arrest Mr. Pyle.

135He noted that Alicia Sinan advised Officer Haday that she did not want to be interviewed. His opinion was that Officer Haday was not obligated to proceed further with respect to Alicia Sinan. If a witness did not want to give a statement, only a court could compel her to provide one.

136Mr. Davis reviewed the photo lineup video, and concluded that Officer Spink followed the appropriate guideline. His view was that the photo lineup is a not a black and white matter. In his opinion, when one looks at the lineup and the struggle that Mr. Grau had with Mr. Pyle’s actual photo, some weight can be put to the photo lineup, but there were still reasonable and probable grounds to charge Mr. Pyle after the photo lineup. He was of the opinion that the case had not changed because the court could still put some weight on the struggle that Mr. Grau had on the photo that was of Mr. Pyle.

137He said that after the police made disclosure of the photo lineup and the interview, it is up to the Crown to determine whether to proceed, or to withdraw the charges. He found nothing improper with Officer Haday’s conduct.

138Mr. Davis testified that for a handwriting analysis, one needed to get a sample written on the same type of paper as the sample to be compared to. That was not possible for something written on the wall.

139He agreed that there was nothing in the police files and reports to indicate that they were flagged with a high priority.

140Mr. Davis was of the opinion that it was important to know the family history and the fact that Rebecca had been disbelieved by the court or Crown previously. He did not think in these circumstances an investigator would go into great detail about the past incidents. It was not reasonable to delve into great detail regarding the entire family matter.

Analysis and Findings of Fact

141There are two significant factual disputes and a number of differences of opinion regarding the interpretation of the evidence. I will first deal with the factual disputes.

Did Officer Hawrylshyn advise Mr. Pyle at the time of his arrest of the charges that he was facing?

142The first factual dispute is whether Officer Hawrylshyn advised Mr. Pyle of the charges that he was facing when he was arrested.

143For several reasons, I find as a fact that Officer Hawrylshyn advised Mr. Pyle of those charges at the time he was arrested.

144First, during the video interview of Mr. Pyle with Officer Vince, Mr. Pyle told Officer Vince that he was charged with two breaches of probation. If one was arrested while on probation, one might assume that one would be charged with one breach of probation, but Mr. Pyle knew that he was charged two breaches. In fact, Mr. Pyle was charged with two breaches of probation: one for breaking the peace and the other for being in a location which was prohibited by his probation order.

145Second, during the video interview, Mr. Pyle did not contradict Officer Vince when Officer Vince stated that the arresting officer had told Mr. Pyle what the charges against him were.

146Third, I have concerns regarding Mr. Pyle’s credibility. For example, he testified that he went out west to get away from trouble, and yet there are two outstanding warrants for his arrest in two western provinces arising from his time out west. He testified that his tooth was chipped while he was incarcerated following his July 10, 2009 arrest. However, records show that he reported a chipped tooth on a prior incarceration in 2008, and did not report one during his time in jail following his arrest on July 10, 2009.

147Fourth, it defies logic that a duty counsel would or could advise an accused regarding his/her rights without knowing the charges against that person. Mr. Pyle acknowledged that he spoke to duty counsel and was advised of his rights. There is no indication from anyone that Mr. Pyle or duty counsel indicated to anyone that this information was required for duty counsel to perform his or her duties.

148Fifth, Officer Hawrylshyn testified that the written version of the caution had a blank space into which officers were to insert the charges when reading the caution to the accused, and that it was his normal practice to advise individuals who he arrested what the charges were that they were being arrested for.

149Finally, he confirmed that prior to arresting Mr. Pyle, he checked his onboard computer and determined what the specific charges against Mr. Pyle were.

150I acknowledge that Officer Hawrylshyn stated that he had a better recollection after he reviewed the additional notes that he located as he prepared for the trial on the day that he was scheduled to testify, and that these notes had not been previously disclosed to the plaintiff. However, even without that testimony for the reasons stated above, I would have found as a fact that Officer Hawrylshyn advised Mr. Pyle of the charges against him when he was arrested.

When did disclosure to the Crown of the DVD of the interview of Mr. Grau and the photo lineup occur?

151The second factual dispute is the timing of the disclosure to the Crown of the DVD of the interview of Mr. Grau and the photo lineup.

152There is no disagreement that the video interview and the photo lineup by Mr. Grau occurred on August 25, 2009. Further, Officer Haday submitted a written report dated September 24, 2009, which she called a “supp report”. What is in dispute is when the actual DVD was disclosed the Crown.

153During her discovery Officer Haday stated that she sent the supp report shortly after it was prepared.

154At trial, Officer Haday testified that her practice was that one of the first things that she would do after she completed a video interview and photo lineup was to provide the DVD to the Crown through the normal disclosure process. She recalled doing this shortly after the event.

155The plaintiff wants me to rely upon the fact that the Crown did not contact the plaintiff’s criminal lawyer until September 20 or 21, 2009 to withdraw the charges as evidence that disclosure of this DVD did not occur until then.

156The only evidence that I have in that regard is Mr. Hadfield’s impression that the Crown Attorney who he spoke with had only recently received disclosure of the DVD of the interview and photo lineup.

157There could be many reasons why the Crown did not act between August 25, 2009 and September 20 or 21, 2009, other than that the Crown Attorney’s office did not receive the DVD until that time. For example, it could have been that there was a communication issue within the Crown’s office that caused the delay. We simply do not know.

158I find as a fact that Officer Haday disclosed to the Crown the DVD of the interview of Mr. Grau and the photo lineup shortly after the event, which event occurred on August 25, 2009.

Was this a domestic incident?

159There was also considerable evidence adduced regarding the nature of the incident. The defendant officers, Mr. Wallhenzien, and Mr. Davis all stated that in 2009 domestic incidents were governed by General Order 114.06.

160The defendant officers and Mr. Davis all testified that by virtue of the definition of a domestic incident, the July 1, 2009 incident was a domestic incident.

161Section 2.3 of that Order defines a domestic incident to be one “involving two persons who have been … involved in an intimate relationship or … family members”. “Family members” means persons who are related by blood.

162I find that since Alicia Sinan is the sister of Rebecca Sinan, and Rebecca had an intimate relationship with Mr. Pyle, for the purposes of investigating, this incident is a domestic incident, and therefore the procedures set out in that General Order govern the investigation and prosecution of this incident.

163Section 3.1 of that General Order directs that police officers shall lay charges in all domestic violence incidents. There is no discretion.

164The balance of the issues revolves around an interpretation of the facts and the interplay of the duty of care to those facts. I will now analyze each defendant officer’s conduct bearing that in mind.

Analysis of Defendants’ Conduct

Did Officer Hill’s conduct fall below the standard of care?

165Although Mr. Wallhenzien found fault with certain acts or omissions of Officer Hill, he agreed that she had reasonable and probable grounds to charge and arrest Mr. Pyle following her investigation at the Grau residence. Also, under cross examination, Mr. Wallhenzien also withdrew his criticism of Officer Hill’s actions as a SOCO.

166Further, I accept Officer Hill’s evidence that she checked for and determined that there were no viable fingerprints. There were no signs of blood, for which she had been trained to test, and there were no obvious signs of DNA, for which she might have called in specialists. I accept Mr. Davis’ evidence that fingerprint analysis from a sample on a wall is problematic.

167I agree that Officer Hill neglected to obtain the signature of Mr. Grau in her duty book. However, I accept Mr. Davis’ opinion that this was a minor error that in no way impacted upon Officer Hill having reasonable and probable grounds to charge and arrest Mr. Pyle.

168Similarly, the plaintiff found fault with Officer Hill because of questions that she did not ask Mr. Grau, such as the contact information for the guests that day and the other residents of the building.

169In my view, that mischaracterizes Officer Hill’s role. She was the initial contact with the complainants by the police. Her role was to obtain the essential information, perform her SOCO duties, and after determining that she had reasonable and probable grounds to attempt to arrest Mr. Pyle. It was then her duty to pass the handling of the incident on to Officer Haday as lead investigator. She did just that and in doing so, met her duty of care to Mr. Pyle.

170The plaintiff’s assertion that more attempts to location Mr. Pyle should have been undertaken prior to obtaining an arrest warrant is without merit. Police have the discretion to arrest without a warrant when they have reasonable and probable grounds or, alternatively, they may obtain a warrant. There is nothing negligent about obtaining a warrant prior to arrest as this procedure is provided for in the Criminal Code.

171I find that the plaintiff has not proven on a balance of probabilities that Officer Hill’s conduct fell below the standard of care owed by her to Mr. Pyle.

Did Officer Hawrylshyn’s conduct fall below the standard of care?

172The only allegation against Officer Hawrylshyn’s conduct was the allegation that he failed to instruct Mr. Pyle on what charges he was facing at the time of his arrest.

173As I have found as a fact that the officer did advise Mr. Pyle of the charges that he was facing, I find that the plaintiff has not proven on a balance of probabilities that Officer Hawrylshyn’s conduct fell below the standard of care owed by him to Mr. Pyle.

Did Officer Vince’s conduct fall below the standard of care?

174The plaintiff has alleged that Officer Vince’s conduct fell below the expected standard of care primarily because he did not either follow up on Mr. Pyle’s alibi or advise Officer Haday of it.

175He testified that he prepped himself for the interview by reading some previous reports; he interviewed Mr. Pyle; and then he made copies of the DVD. That day, he provided a short statement and put it and the DVD in the appropriate location for delivery to the Crown.

176I find that Officer Vince followed the disclosure procedure to the Crown of the interview the same day that the interview occurred.

177Officer Vince stated that he called Mr. Pyle’s parents, and then Paul Cameron out of fairness to Mr. Pyle because he agreed that he would advise them that Mr. Pyle was in jail, and that the bail hearing was the next day.

178He testified that he did not believe Mr. Pyle’s denial. He also said that he did not view Mr. Pyle’s comments during the interview as a viable alibi as Mr. Pyle initially said that he did not know where he was that night, and at most, said that he might have or probably was with Mr. Cameron.

179Officer Vince said that after the interview was complete he was about 75% convinced that Mr. Pyle had committed the offences. In his opinion, for an officer to have reasonable and probable grounds he thought that the officer needed to be 50 to 60% convinced that an offence had been committed.

180Because he did not view Mr. Pyle’s comments as a viable verifiable alibi, in his opinion it was not necessary to investigate it.

181Officer Vince was clear that after he completed the interview and the processing of the DVD, his investigatory involvement with the matter was at an end.

182Mr. Wallhenzien’s opinion was that Officer Vince had a duty to investigate this alibi. This opinion was not shared by Mr. Davis, who opined that it was clear that Officer Vince concluded that it was not a viable alibi, and that there was no duty to investigate every statement made by an accused.

183I am satisfied from viewing the interview of Mr. Pyle twice, that his comments were scattered and mere suggestions. He said he could not remember where he was; he did not have his book with him; he might have been with his friend; probably with his friend. There were no details. It was like a person grasping for straws.

184Further, Mr. Cameron did not testify at this trial. I am left with Officer Vince’s testimony that in his opinion the alibi was not a viable one. This is the uncontroverted evidence. There is nothing before me to suggest that his opinion was one that a reasonable police officer in similar circumstances would not make.

185I agree with Officer’s Vince’s conclusion, and that of Mr. Davis, that it was not a viable alibi worthy of investigating in those circumstances.

186As well, considerable time was spent during the trial examining how the Domestic Unit functioned in 2009. Both Officers Vince and Haday testified that in 2009 there were four domestic unit officers, one to each platoon. They both testified that a lead investigator was assigned to a case, and occasionally that person might ask another investigator to assist with a minor task, such as picking up something.

187In this case, Officer Vince interviewed Mr. Pyle after he was arrested, being July 10, 2009. The evidence is clear that this was not assigned to him or delegated to him by Officer Haday. Rather it was mere coincidence because Officer Vince was working when Mr. Pyle was arrested. The unit had an emphasis upon interviewing individuals when they were taken into custody. Officer Vince had the time that day and Officer Haday was not working, so he did the interview.

188I find that Officer Vince’s conduct, in failing to either investigate himself or direct Officer Haday’s attention to the alibi, did not fall below the standard of care expected of him in 2009. Further, he completed the task which he assumed, namely the interview of Mr. Pyle and the disclosure to the Crown and Officer Haday of that interview as he should have.

189There were also allegations against Officer Vince that he did not prep well enough for the interview. Given the time constraints facing the police and the task at hand, I find that Officer Vince acted as a reasonable police officer would in similar circumstances.

190I find that the plaintiff has not proven on a balance of probabilities that Officer Vince’s conduct fell below the standard of care owed by him to Mr. Pyle.

Did Officer Haday’s conduct fall below the standard of care?

191There are a number of minor allegations regarding Officer Haday’s conduct, but the six major allegations against Officer Haday are:

a. How she completed the bail report form;

b. She failed to interview/follow up with the history with Sinan family;

c. She laid the criminal harassment charge regarding May 2009 incident without proper investigation;

d. She delayed her interview of Mr. Grau;

e. She failed to disclose to the Crown in a timely manner that interview and the photo lineup to the Crown; and

f. She failed to review the DVD of the interview of Mr. Pyle or Officer Vince’s report regarding that interview.

192The plaintiff alleged that Officer Haday was negligent in the manner that she completed the bail hearing report. The plaintiff alleged that she completed aspects of that report without confirming the accuracy of that information or simply put inaccurate information into the report.

193For example, she noted that “Pyle is considered a flight risk since he was known to reside in Western Canada”. In fact, he had resided in St. Catharines for a period of time prior to July 1, 2009. However, when she did a CPIC search, Officer Haday found two outstanding warrants for Mr. Pyle’s arrest in two Western provinces.

194In light of this, I find that Officer Haday’s statement was reasonable. Clearly, Mr. Pyle must have resided in Western Canada in the past if there were warrants outstanding for him. Therefore, it was true that he had been known to reside there.

195Officer Haday noted that Mr. Pyle was unemployed, without having that verified. She testified that she obtained some of this type of information from prior reports, and it was accurate as he was unemployed. She marked that he was a suicide risk because she read a report that noted he had threatened to hurt himself.

196This bail report was prepared by her with input from Officer Hill. I find that there is nothing in her conduct that demonstrated any negligence or would show that she did not act as a reasonable police officer would in similar circumstances.

197Next, Officer Haday is faulted for her failure to investigate into the history of events between Mr. Pyle and the Sinan family. She acknowledged that she read some reports regarding prior incidents, but she did not review and was not aware that in December a criminal harassment charge involving Rebecca Sinan as the complainant was withdrawn by the Crown after Rebecca Sinan’s evidence because of inconsistencies in that testimony.

198Mr. Wallhenzien opined that she was negligent in not doing so; whereas Mr. Davis thought that it was important to know this family history, but in the circumstances and the nature of the offence, he did not think that it was reasonable for an investigator to delve into the details regarding the entire family history.

199I agree that it would be useful to know that information. However, I find that given the facts of this incident, and in particular since it involved Alicia Sinan and not Rebecca Sinan, and there was an eyewitness other than a Sinan family member, it was not reasonable to expect Officer Haday to investigate the family history.

200The plaintiff also submits that Officer Haday was negligent in laying charges with respect to the May 2009 incident without further investigation. Officer Haday stated that she included the police reports from that incident with her disclosure to the Crown, but she took no further steps.

201It is unclear whether the officers who investigated the May 2009 incident were aware of the connection which Mr. Pyle had to Alicia Sinan’s sister. It is clear, however, that that incident should have been classified as a domestic incident and, therefore, pursuant to the General Order regarding domestic incidents, it was mandatory that charges be laid. With the knowledge that Officer Haday had, she was simply complying with that General Order by laying the harassment charge. This was a reasonable and proper thing to do.

202I turn now to the timing of the video interview with Mr. Grau and the photo lineup.

203Mr. Wallhenzien opines that the video interview should have occurred within a day or two of July 1, 2009, the date of the alleged event. Mr. Davis opines that in all of the circumstances the timing was reasonable. I find that Mr. Davis’ opinion is persuasive.

204The statements of Mr. Grau to the 911 operator, Officer Hill and to Officer Haday were consistent. The purpose of the video statement was to explore the statement in greater detail. When the interview occurred, that is in fact what happened. Mr. Grau did not recant or otherwise substantially change his version of the events.

205I have the uncontradicted testimony of Officer Haday that her schedule and Mr. Grau’s schedule did not allow for a date earlier than August 12, 2009, and that Mr. Grau cancelled first that date and then cancelled the next date of August 17, 2009. It was not until August 25, 2009 that the interview could proceed. Officer Haday said that she was on holidays for 2 blocks of two weeks, first in July and then in August. She said that Mr. Grau had child care issues and that she could not force a witness to come in.

206Ms. Hoy had argued for the plaintiff that as the domestic unit worked as a team, another officer should have been tasked with this interview so that it could have occurred earlier if Officer Haday was not available.

207First, I find that such tasks were not routinely assigned, but only minor tasks such as pick-up or delivery of items. As I noted, the interview of Mr. Pyle was an exception, and was undertaken by Officer Vince because Mr. Pyle was in custody; Officer Vince was working and Officer Haday was not. Second, and more important, there was no urgency because of the prior consistent statements of Mr. Grau, and the interview, in fact, did simply confirm those prior statements.

208I find that in not interviewing Mr. Grau until August 25, 2009 Officer Haday acted as a reasonable police officer would act in similar circumstances.

209The plaintiff also alleges that following the photo lineup Officer Haday should have advised the Crown immediately because of the significant change in the case. Mr. Wallhenzien took that position.

210Mr. Davis opined that Officer Haday continued to have reasonable and probable grounds regarding the charges even after the photo lineup. He stressed that Mr. Grau took two minutes when he examined the first photo, which was in fact of Mr. Pyle, and that several times as he examined later photos he said that it was the first photo. He said that this was evidence that a court would have to attribute weight.

211It is important to keep in mind that the standard of proof beyond a reasonable doubt is the standard by which the Crown and the courts must be governed. The police continue to operate on a reasonable and probable grounds basis.

212I find that even after the photo lineup, when one considers the statements by Mr. Grau to the 911 operator, Officer Hill, Officer Haday, and his video statement, Officer Haday continued to have reasonable and probable grounds regarding the charges.

213Earlier in my decision I found as a fact that Officer Haday disclosed to the Crown the DVD of that interview and photo lineup shortly after the event, which occurred on August 25, 2009. The Crown, therefore, had, from that date forward, the necessary information upon which she could exercise her discretion to determine whether to proceed with, or withdraw, the charges.

214The plaintiff also alleges that Officer Haday was negligent by virtue of the fact that she did not review the interview of Mr. Pyle by Officer Vince, nor did she review his report regarding that interview.

215Officer Haday agreed in her testimony that it was part of her duty to review the interview and the report, and that she never did that.

216I find that Officer Haday’s conduct fell below the standard of care because she failed to review either the videotaped interview of Mr. Pyle or Officer Vince’s report regarding that interview.

217There were numerous other allegations of negligence, of what I would consider of a minor nature, made against Officer Haday regarding what she did or did not do or what she did not ask. For example, she did not interview the individuals who were visiting at the Grau residence on the first of July or interview the other two tenants of the building.

218As the courts have previously noted, for an officer to meet the standard of care, perfection is not required in an investigation. As well, police officers are expected to make judgment decisions of what to do or not do. Here, there was an eyewitness who had given consistent statements to three contacts at the police force. Officer Haday concluded that it was not necessary to pursue other avenues of the investigation. It was a reasonable decision and one which a reasonable police officer in similar circumstances could make.

219I am satisfied that all of these alleged acts of negligence do not individually or collectively render her conduct less than what a reasonable police officer would do in similar circumstances.

220I find that, with the exception of Officer Haday’s failure to review the videotaped interview of Mr. Pyle by Officer Vince or his report regarding that interview, the plaintiff has not proven on a balance of probabilities that Officer Haday’s conduct fell below the standard of care owed by her to Mr. Pyle. I do find, however, that the plaintiff has proven on a balance of probabilities that Officer Haday’s conduct fell below the standard of care owed by her to Mr. Pyle through her failure to review that interview and that report.

Causation

221To establish a cause of action in negligence, the plaintiff must show that he suffered compensable damages.

222Further, to recover for negligence there must be a causal connection between the breach of the standard of care and the compensable damages suffered. As noted in Hill, “The starting point is the usual ‘but for’ test. If, on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of the police, then the causation requirement is met”.

223Also, in Hill the Supreme Court makes it clear that negligent investigation often will involve multiple causes. “Where the injury would not have been suffered ‘but for’ the negligent police investigation the causation requirement will be met even if all other causes contributed to the injury as well. On the other hand, if the contributions of others to the injury are so significant that the same damage would have been sustained even if the police had investigated responsibly, causation will not be established.”

224I have found that the plaintiff has not proven on a balance of probabilities that the conduct of the defendant police officers’ conduct fell below the standard of care, with the exception of Officer Haday’s failure to review the videotaped interview of Mr. Pyle or Officer Vince’s report regarding that interview.

225The damages claimed flow from the allegation that the negligent conduct of the defendants resulted in the incarceration of Mr. Pyle.

226I have previously found that during that interview Mr. Pyle did not offer a viable alibi that required investigation and, therefore, Officer Haday’s failure to review the interview or the report had no material impact upon the police investigation or Mr. Pyle’s incarceration.

227Therefore, I find that there is no causal connection between the negligent omission of Officer Haday and Mr. Pyle’s incarceration.

Duty to Mitigate

228There is a duty to mitigate imposed upon all plaintiffs. A defendant bears the onus of proving on a balance of probabilities that the plaintiff has failed to make reasonable efforts to mitigate and that mitigation was possible.

229The Supreme Court formulated that duty as follows:

If it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant begin content to allow the matter to be disposed of on the final judge’s assessment of the plaintiff’s evidence on avoidable consequences: Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324.

230Mr. Pyle was arrested on July 10, 2009. His evidence is that he was not released until 78 days later when the charges were withdrawn. He was remanded many times following his arrest.

231Mr. Pyle Senior testified that Paul Cameron called him on July 10, 2009 to tell him that his son was in jail. Mr. Pyle Senior said that he did not attend court because no one asked him to.

232Mr. Hadfield testified that in his opinion Mr. Pyle would not be released on bail without a good surety.

233There is no evidence as to why no one acted as Mr. Pyle’s surety. There was evidence that on a prior occasions Mr. Pyle’s parents acted as his surety.

234Further, there is no evidence that Mr. Hadfield, who was Mr. Pyle’s criminal lawyer, ever approached the Crown to put forward the alibi that Mr. Pyle was with Mr. Cameron when the offence was alleged to have occurred, nor that Mr. Cameron who was present at the bail hearing on July 11, 2009 ever told anyone that Mr. Pyle was with him on the evening of July 1, 2009.

235I have no evidence that Mr. Pyle directly, or through his lawyer, took any actions whatsoever to mitigate his damages. The only evidence that I have in that regard is Mr. Pyle’s evidence that he told his lawyer his alibi.

236I find that there is no evidence that Mr. Pyle took any steps whatsoever to mitigate his injury.

237Mr. Pyle totally failed to mitigate his damages.

238Therefore, even if I had found that the defendants were negligent and that negligence cause Mr. Pyle’s incarceration, I would have found that Mr. Pyle failed to mitigate his damages, and I would not have awarded him any damages.

Damages

239For the sake of completeness, I will briefly discuss the issue of damages.

240Mr. Pyle was no stranger to the criminal justice system. He had spent a significant period of time in the Detention Centre prior to this incident. The incarceration caused Mr. Pyle no special embarrassment, such as would be the case for an individual with no criminal experience.

241Mr. Pyle stated that while he was in custody he was depressed and stressed. He said that he witnessed several assaults and had his tooth chipped by a punch from another prisoner. His credibility on this issue was shaken somewhat when he agreed that he reported having his tooth chipped on a previous incarceration, but he did not report a chipped tooth while he was in custody following his arrest on July 10, 2009.

242The evidence that I have is that he was depressed and taking medication prior to incarceration and that he continued on similar medication while he was incarcerated.

243By Mr. Pyle’s own evidence, and that of his father, there was no lasting impact upon his depression once he was released from custody. Indeed, his father stated that his son returned to his “happy go lucky” self once he was released.

244Therefore, setting aside the issue of mitigation for the moment, had the defendants breached their standard of care and there was a causal connection to Mr. Pyle’s incarceration, any damage award would be strictly limited to his period of incarcerated and any mental anguish that he suffered during that time.

245As well, any damage award would be tied to the date when Mr. Pyle first suffered injury. For example, I have found that timely disclosure of the DVD of the interview of Mr. Grau and the photo lineup was given to the Crown. However, if I was in error and this was the only negligent act or omission of the defendants, then Mr. Pyle’s damages would be calculated from that date until he was released. Conversely, if the negligence occurred prior to, or at the time of, Mr. Pyle’s arrest, then damages would be calculated from that time until his release.

246Mr. Pyle also made a claim for loss of income due to his incarceration. That was not pursued at trial as the evidence showed that he was unemployed at the time of his arrest.

247Given that I have found no police negligence which was casually connected to Mr. Pyle’s incarceration, I am not prepared to establish any amount for damages.

248Similarly, given my findings and reasons, punitive damages do not arise.

Charter Breach

249In the Statement of Claim, the plaintiff alleged that his right to life, liberty and security of the person, and the freedom against unlawful detention had been breached by the police.

250During the trial and in closing submission, the plaintiff’s counsel submitted that the plaintiff’s right under s.11(a) to be informed of the specific offence without unreasonable delay had been breached.

251I need not deal with the issue that this was not pled, since I have found that Mr. Pyle was advised of the specific charges against him at the time of his arrest.

252In light of my findings that the police had reasonable and probable grounds to arrest him, and that the police continued to have reasonable and probable grounds after the video interview and photo lineup, I find that Mr. Pyle’s rights under sections 7 and 9 were not breached.

Summary

253For the above reasons, I dismiss the plaintiff’s action.

254If the parties cannot agree upon the issue of costs, the defendants shall provide their cost submissions within 14 days. The plaintiff shall provide his submissions within 7 days thereafter. Reply submissions, if any, shall follow no later than 4 days thereafter. Cost submissions shall be limited to 3 pages.

D. L. Edwards J.