Court File and Parties

COURT FILE NO.: CV-05-011362-00 DATE: 2018 11 05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES PERREAULT Self-represented PLAINTIFF

• and -

REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD E. Mazzuca, Counsel for the Defendant DEFENDANT

HEARD: October 26th, 2018

REASONS FOR DECISION

LEMAY J.

[1] The Plaintiff, Mr. James Perreault, has claimed that members of the Defendant, the Peel Regional Police, have harassed him. This harassment is alleged to have taken place back between 2003 and 2005, and allegedly culminated in the search of Mr. Perreault’s home. The matter finally came on for trial in May of 2018 during the Brampton Civil Blitz.

[2] During the course of his testimony in chief, Mr. Perreault raised issues about the warrant giving the police the authorization to search his house on January 24th, 2005. In essence, Mr. Perreault is arguing that the Peel Police obtained this warrant improperly.

[3] By way of an endorsement dated June 15th, 2018, I set out a series of issues to be determined. Those issues were argued before me on October 26th, 2018, and the trial resumes on December 3rd, 2018.

Issues

[4] The three issues that I defined in my June 15th, 2018 endorsement are as follows:

a) Is the answer to the Undertaking given by Mr. Perreault’s counsel is sufficient to prevent him from pursuing any challenge whatsoever to the issuance of the warrant? This would include whether or not the Peel Police may have acted in bad faith in obtaining the warrant. b) Can the Court order the Peel Police to breach the informant’s privilege? In my view, the holding in R v. Hunter (1987), 59 O.R. (2d) 364 would govern. Innocence is not at stake here, and it would appear that informer privilege cannot be breached in this case. However, in answering this question, the parties are also required to provide me with their submissions on what should be done about the information that may have been disclosed already. c) In light of the fact that the information about the Confidential Informant will most likely remain sealed, the parties are directed to advise me as to whether there are any steps that can be taken to provide the parties and/or the Court with more information in this particular case.

[5] I will address each of these issues in turn. In addition, Mr. Perreault has raised a number of other issues that I will address at the end of my reasons.

Issue #1 - Does the Answer to Undertakings Preclude Mr. Perreault from Pursuing This Issue?

[6] Counsel for the Peel Police argues that I should not permit Mr. Perreault to lead any evidence about whether the warrant was properly granted. He also argues that I should not entertain Mr. Perreault’s claim that the warrant was improperly granted, or obtained in bad faith. In support of that position, he raises three key questions, as follows:

a) Does the answer to undertaking prevent Mr. Perreault from pursuing the issue of the warrant? Answering this question also requires a consideration of some of the general answers given at Mr. Perreault’s discovery. b) Does the endorsement that Emery J. made at the pre-trial conference identifying the issues for trial prevent Mr. Perreault from raising the issue of the warrant? c) Does the issue of the warrant raise new causes of action that are barred because of the Limitations Act and/or the rules of pleadings?

[7] I will address each of these questions in turn.

a) The Undertaking and Conduct of the Discovery

[8] At his discovery, and while represented by counsel, Mr. Perreault gave an undertaking that he would confirm whether the search warrant was being challenged. This discovery was conducted on May 20th and 21st, 2009.

[9] There were difficulties in obtaining the answers to undertakings from the Plaintiff. However, in a letter dated November 13th, 2013, Mr. Perreault’s then counsel, answered this undertaking as follows:

...that the defendant was advised that the warrant was received after the lawsuit was commenced. The ITO has not been produced but the plaintiff disputes the purported information of a confidential informant referred to in the disclosure. The search warrant itself is not in question.

[10] Based on this answer, it appears to me that Mr. Perreault was not challenging the facial validity of the warrant, but was disputing that the information provided by the confidential informant was, in fact, correct. Mr. Mazzuca argued that, as a civil lawyer, he would have understood that this answer meant that the warrant was not being challenged at all.

[11] I reject this argument for two reasons. First, the question that I must decide is what the undertaking means at law. That requires me to consider the entirety of the law (including criminal law) in arriving at a decision. Second, the language of the answer itself makes it clear that the information underlying the warrant was being challenged. The phrase “the Plaintiff disputes the purported information of a confidential informant” has to mean something, and the most logical meaning is that the Plaintiff is claiming that the Police got the information from the confidential informant wrong.

[12] This brings me to the other argument that Mr. Mazzuca advances on this issue. He states that there are other portions of the discovery transcript that support his position that Mr. Perreault should not be allowed to rely on these allegations at this late date. In particular, he points to an undertaking on harassment that states:

Okay. Just so that there’s no surprises at trial, if there is anything that you’re relying upon of harassment, just let your counsel know, and – and provide sufficient details.

MS. EPSTEIN: Yes (U/T)

[13] In addition, there is another passage in which Mr. Mazzuca asked Mr. Perreault to advise as to whether there were any other issues that were being raised at trial:

Q. --- and, I’ll -- I'll ask for an undertaking, if there’s anything else ---

MS. Epstein: Okay.

Mr. MAZZUCA: --- that I’m going to hear at trial, I want to hear about it by way of an answer to undertaking.

MS. EPSTEIN: If there are any other incidents, then we’ll advise.

MR. MAZZUCA: Okay. So, those are all my questions, subject to any questions I have arising out of the answers to undertakings and refusals, and that’s it for today.

MS. EPSTEIN: Thank you.

[14] Both of these undertakings are very definitive. They ensure that all of the allegations must be particularized by Mr. Perreault prior to the trial.

[15] However, during the course of argument, I asked Mr. Mazzuca what prejudice the Peel Police would suffer if the allegation about the warrant being obtained with improper information went to trial. Given that Ms. Schaefer, who was the officer who swore the Information to Obtain the search warrant, is available to testify the prejudice is limited to, at most, fading memories.

[16] I also note that the Peel Police have not been taken entirely by surprise on account of this allegation. Indeed, in their witness list provided on May 2nd, 2018, there is a “Supplementary List of Witnesses on Issues not raised in the Statement of Claim”. One of those witnesses is Cst. Mark Haywood, who is expected to give evidence relating to the search warrant. This suggests that the Peel Police have turned their minds to this issue in preparing for trial.

[17] Finally, Mr. Perreault has put the issue of the warrant clearly into play by his answer to the undertaking about the warrant. As I have said at paragraph 11, above, the phrase ““the Plaintiff disputes the purported information of a confidential informant” has to mean something. The issue of the justification for the warrant was, at least when this answer was given, in play in these proceedings. The question is to what extent is it in play?

b) The Endorsement of Emery J.

[18] At the pre-trial held on September 20th, 2016, Emery J. stated that “the Plaintiff has narrowed the liability issues and related damages for trial to:

a) The assault and battery on January 24th, 2005; b) The general harassment of Mr. Perreault. c) Punitive damages.

[19] Emery J. concluded by noting that “all else is intended to provide the narrative.”

[20] Mr. Mazzuca argues that this endorsement prevents Mr. Perreault from pursuing the question of whether the Peel Police had a reasonable basis for obtaining the warrant. I disagree. There are two ways in which Mr. Perreault can use his claim that the search warrant was obtained improperly to advance his case. First, it could be used to support Mr. Perreault’s claim that the Peel Police were engaged in a campaign of harassment against him. Second, it could be used to argue that there was an intention to intimidate and/or assault Mr. Perreault during the course of the search on January 24th, 2005.

[21] I make no comment as to the strength of either of these arguments. I just observe that the evidence that Mr. Perreault seeks to adduce could be used to make one of these arguments.

[22] Mr. Mazzuca also argues that the endorsement of Emery J prevents Mr. Perreault from raising any new claims of bad faith or any new torts. I now turn to that issue.

c) The “New Claims” Issue

[23] Mr. Mazzuca argues that the two year limitation period in the Limitations Act 2002, S.O. 2002, C. 24 Sched B. precludes Mr. Perreault from advancing these claims. He also argues that an amendment to pleadings would be required in order to permit Mr. Perrault to advance these issues. I accept this submission to the extent that I am not prepared to permit Mr. Perreault to claim damages for any new torts and, in particular, allegations of fraud or fraudulent misrepresentation.

[24] I start with the fact that pleadings must contain full particulars if either fraud and/or fraudulent misrepresentation are alleged (see Economical Insurance Company v. Fairview Assessment Centre Inc. 2013 ONSC 4037). It is clear that Mr. Perreault’s pleading does not meet this test, as he does not even make a claim for fraud or fraudulent misrepresentation.

[25] Then, I note that particulars are important for defining the scope of the action. As the Court of Appeal noted in 460635 Ontario Limited v. 1002953 Ontario Inc (, [1999] O.J. No 4071) at paragraph 9:

As correctly pointed out by counsel for the appellants, the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against a defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial. See Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 41 O.R. (3d) 528 (Ont. C.A.).

[26] In these circumstances, I cannot permit Mr. Perreault to advance any claims of fraud or fraudulent misrepresentation on the part of the police without an amendment to his Statement of Claim. Mr. Perreault has not sought an amendment to his Claim in this motion.

[27] However, even if Mr. Perreault had, brought a motion to amend I would not have granted it. Normally, pleadings may be amended at any point in a case unless a party can show prejudice that cannot be compensated for by costs or an adjournment (see Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 26.01).

[28] In this case, prejudice can be shown in two ways. First, by the passage of the limitations period. This automatically creates a presumption of prejudice, however slight, that the Plaintiff must rebut. (see Wellwood v. Ontario Provincial Police 2010 ONCA 386 at paragraph 60, and Kassam v. Sitzer [2004] O.T.C. 731 at paragraphs 53 (Ont. Master)).

[29] In addition, the delay in raising these claims is inordinately long. It has been more than thirteen (13) years since the warrant was executed. While delay is not, in and of itself, a basis for refusing an amendment, if the delay is very long and the justification is inadequate, prejudice will be assumed (see Family Delicatessen Ltd. v. London (City), 2006 CarswellOnt 1021 (C.A.)).

[30] In this case, there is no explanation for the delay in alleging a separate stand-alone cause of action relating to the obtaining of the search warrant. I am not prepared to allow a new claim to proceed at this late stage.

[31] However, as I have indicated above, I am persuaded that Mr. Perreault should be able to advance this evidence to support his claims under the two issues identified by Emery J. The evidence may be used for this limited purpose.

d) The Limits on the Use of This Allegation

[32] As I have indicated, the allegations that the Peel Police improperly obtained the warrant can be advanced. However, they can only be advanced in a limited way, and for limited purposes. First, the only allegation that has been made is that the information of a confidential informant was not properly obtained, or properly recorded. This is the only allegation that can be advanced at this late stage.

[33] Second, the allegation that the warrant was improperly obtained cannot be advanced to claim a remedy for any tort that was not set out in the Statement of Claim. These claims are, at this point, statute barred.

[34] Third, the Peel Police must have the ability to respond to these allegations. To that end, the Peel Police are entitled to call Ms. Schaefer, or any other additional witness, to speak to this issue, and only this issue, as long as those witnesses are identified by November 21st, 2018.

[35] Fourth, any evidence, including any cross-examination, will be limited by the restrictions that flow from privilege afforded to informers. I now turn to those issues.

Issue #2 - Should I Breach Informer Privilege?

[36] This issue can be very briefly dealt with. In my original endorsement, I pointed out the decision in R. v. Hunter ((1987), 59 O.R. (2d) 364). In that case, the Court of Appeal stated that, unless innocence was at stake, informer privilege would not be breached. It did not appear to me that there was any basis to breach informer privilege, but I wanted to provide Mr. Perreault with the opportunity to make submissions.

[37] I remain of the view that there is no basis to breach informer privilege in this case. The reasoning in Hunter was adopted by McLachlin J. (as she then was) in R. v. Liepert (, [1997] 1 S.C.R. 281) where she stated (at paragraph 9):

A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same. As Cory J.A. (as he then was) stated in R v. Hunter (1987), 57 C.R. (3d) 1 (Ont. C.A.), at 00.5-6.

[38] The reasons in Liepert go on to hold that, subject only to the “innocence at stake” exception, both the Crown and the Court are bound “not to reveal the undisclosed informant’s identity.” Innocence at stake is not an issue in this case and the informer’s privilege will not be breached.

[39] While the second question from my June 15th, 2018 endorsement deals with the issue of what should be done with the information that has already been disclosed, the answer flows more logically from the discussion on the third issue. I now turn to that issue.

Issue #3 - What Should Be Done With the Disclosure? Can Additional Information Be Provided?

[40] Part of the reason that this issue arose is that Mr. Perreault pointed to a document that provided information about the informer in the course of his evidence in chief. In addition, there are other documents that appear to suggest the nature of the relationship between Mr. Perreault and the informer. Mr. Perreault is, therefore, looking for additional production.

[41] This raises three issues. First, does the disclosure of these documents amount to a waiver of privilege? Second, if not, what should be done to remedy any potential breaches of privilege? Finally, should the Peel Police produce any additional information?

[42] First, the inadvertent disclosure of any documents that might put the informant’s privilege at risk does not amount to a waiver. While the privilege belongs to the Crown, it cannot be waived without the express consent of the informant. On this point, see R. v Akleh (2008 CarswellOnt 8556) at paragraph 16 and the cases cited therein).

[43] Having established that the privilege is the informer’s privilege, it cannot be waived by the Crown without an express waiver of privilege. As noted by Smith J. of this Court in R. v Beauchamp (2008 CarswellOnt 3860) at paragraph 24:

As a result, I conclude that since the confidential informant has never released his informer privilege, the privilege continues to exist, the information inadvertently disclosed by the Crown which identifies or tends to identify confidential informant number two man not be used as a basis to seek questioning of the affiant or be the subject of questioning, if questioning is permitted, as the applicants have not met the innocence at stake exception to the confidential informer privilege.

[44] There is no waiver of privilege in this case. Further, as noted in the cases, there is no ability for a witness to be compelled to reveal whether or not they are an informant. As a result, the privilege remains intact.

[45] This brings me to the question of what remedy should be given as a result of any breach of privilege. Mr. Mazzuca argues that I should order that the documents that were disclosed by the Police should be returned, and that the Police and the Crown should then vet those documents and re-disclose the portions that are not covered by informer privilege to the Plaintiff.

[46] In advance of the trial, this would be the appropriate remedy (see, for example R. v. Dos Santos 2007 ONCJ 633 at paragraphs 15 and 16). However, in this case, the trial has already started. Indeed, Mr. Perreault was intended to be the last witness in the Plaintiff’s case. Much of the disclosure provided by the Peel Police is now in evidence before me.

[47] In these circumstances, the better remedy is to have Mr. Mazzuca review all of the documents with the Peel Police and with the Crown’s office to determine what evidence is covered by informer privilege. In the unique circumstances of this case, I am prepared to redact the exhibit copies of anything that touches on informer privilege. The redactions will then be made on all copies of the documents, including those in Mr. Perreault’s possession.

[48] Anything that has not been entered into evidence yet will be treated differently from the exhibits. Mr. Mazzuca is to identify anything that he is claiming informer privilege over. Mr. Perreault is to return all of the copies of these documents in his possession. Mr. Mazzuca is to then provide Mr. Perreault with redacted copies of those documents, if appropriate.

[49] Mr. Mazzuca is to complete his review and identification of the informer privileged documents by November 15th, 2018 and Mr. Perreault is to return any documents that are not yet exhibits by November 22nd, 2018. We will then deal with the redactions of the exhibits in-court on the first day that the trial continues.

[50] Finally, there is the question of whether there should be any further production from the Peel Police. I am of the view that there should be. The Peel Police are also to produce a redacted copy of the Information to Obtain, in a form similar to what would have been produced to Mr. Perreault if this matter had resulted in a criminal trial. This is also to be produced by November 21st, 2018.

[51] This information should be disclosed in order to ensure that Mr. Perreault has as complete a record as possible in this case. It is also reasonable to require the disclosure of this information as a matter of trial fairness. It must be remembered that Mr. Perreault had a number of documents that he was seeking to rely on that will now be covered by privilege. If he had known this when the documents were originally disclosed, he might have requested the redacted ITO, which would have been producible (see R v. Atout, 2013 ONSC 2297).

Other Issues

[52] In his materials, Mr. Perreault raised three other issues that I should comment on.

[53] First, much of the material that Mr. Perreault referred me to in the course of argument related to the merits of whether the Confidential Informant could have actually provided Peel Police with sufficient information to justify the warrant. That is not a question for me to decide on this motion. It is a question that I will address on the merits of the trial, but within the framework I have set out above.

[54] Second, in his motion materials, Mr. Perreault stated:

(f) We received an email from Mr. Eugene Mazucca [sic] stating that he contacted Ms. Schaefer. And Ms. Schaefer states in her Affidavit that Mr. Mazucca [sic] told her that Mr. Perreault has raised an allegation at trial that the Peel Police may have fabricated Information to obtain he search warrant. And in the Endorsement advised by Justice LeMay date 2018 06 15 he stated that No one at all is to have any discussions whatsoever with Ms. Schaefer. So therefore this Information was breached by the Defendant Lawyer, Mr. Eugene Mazucca [sic]. Please see the attached email for your review.

[55] The problem with this statement is that it does not reflect my endorsement. In my endorsement, I had made it clear that Mr. Mazzuca was at liberty to contact Ms. Schaefer, and that he could discuss the case with her, within the bounds of the obligations of counsel. The only issue that Mr. Mazzuca was not permitted to discuss with Ms. Schaefer was the fact that her name did not appear on the witness list, and that counsel advised me that they had been unable to find Ms. Schaefer for trial. I see nothing at all wrong with how Mr. Mazzuca has handled that issue.

[56] Third, Mr. Perreault stated that he might know the identity of the confidential informant, and was seeking to call a witness who might be that confidential informant. Mr. Perreault also asserted that, if this person is not the confidential informant, it could not be anyone else.

[57] The problem with this position is clear. A witness cannot be asked whether they are the confidential informant, as they are not obligated to waive their privilege. In addition, this witness was not identified on the list of trial witnesses put forth by Mr. Perreault. While I am prepared to hear argument on whether I should permit this witness to testify, these concerns will need to be addressed in that argument.

Conclusion

[58] For the foregoing reasons, I am ordering as follows:

a) Mr. Perreault is permitted to advance his claim that the warrant for the search on January 24th, 2005 was improperly granted in support of his claims that. b) Mr. Perreault may not advance any claims for fraud, fraudulent misrepresentation or any other cause of action that was not specifically pled in his pleadings. c) Mr. Mazzuca is, by November 15th, 2018, to review all of the documents that have been disclosed in this case, and is to advise whether any of the documents raise a claim of informer privilege. d) ALL copies of any documents identified by Mr. Mazzuca pursuant to paragraph (c) that are not yet exhibits in the trial are to be returned by Mr. Perreault by November 22nd, 2018. e) Mr. Mazzuca is to provide redacted copies of the documents returned under paragraph (d) by November 26th, 2018. f) The Peel Police is to provide the redacted ITO by November 21st, 2018 if it still exists. If it does not exist, evidence detailing what happened to it will be required. g) The Peel Police Service is permitted to call Ms. Jean Schaefer, or other witnesses not on their witness list, to address only the issue of the obtaining of the warrant. h) The issue of any redactions to documents marked as an exhibit will be addressed in Court on December 3rd, 2018. i) In order to protect the identity of the informant, the motion materials for this motion are ordered sealed. j) The privileged information identified by Mr. Mazzuca is not to be disseminated anywhere else under any circumstances. k) I retain jurisdiction to address any other requests from either the Crown or from Peel Police to ensure that the informer’s privilege is protected.

[59] Then, there is the subject of costs. This is a mid-trial motion, and success has been divided on it. As a result, I am of the view that the costs for this motion should be considered by me when it comes time to consider the costs of the trial.

LEMAY J. Released: November 5, 2018