Court File and Parties

COURT FILE NO.: 07-CV-39240 DATE: 20190109

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NNANYERE OBIORAH Plaintiff/Responding Party – and – THE OTTAWA POLICE SERVICES BOARD Defendant/Moving Party

Counsel: Yavar Hameed, for the Plaintiff/Responding Party Jeremy Wright, for the Defendant/Moving Party

HEARD: November 20, 2018

REASONS FOR JUDGMENT

Beaudoin J.

[1] The Defendant brings this motion for summary judgment dismissing the Plaintiff’s claims for malicious prosecution, negligent investigation and breach of his ss. 7 and 8 Charter rights arising out of his arrest and charge on or about April 5, 2004. There are allegations that the Defendant failed to provide timely disclosure which would engage a breach of s. 11(d), but these claims are not being pursued.

[2] The Defendant, Ottawa Police Services Board, is sued in a vicarious capacity for the actions of two Ottawa Police Service investigators, Detectives Greg Brown and Bruce Pirt.

[3] It is admitted in the Statement of Claim, and it is not contradicted in the evidence, that the Plaintiff had in his possession illegal drugs, a firearm and significant amounts of cash at the time of his arrest. This evidence was subsequently excluded in the Plaintiff’s criminal proceedings on the basis that the Plaintiff’s s. 8 Charter rights had been infringed.

[4] The Plaintiff’s activities came to Detective Brown’s attention as a result of an investigation by the Ottawa Police Service of the murder of Bashir Sahal on August 11, 2003. Detectives in that investigation believed that the Plaintiff may have had some involvement in that murder or had knowledge of who was involved in the murder. As part of the murder investigation, the lead investigator, Detective Bruce Pirt, swore affidavits in support of applications to intercept private communications, including those of the Plaintiff.

[5] The initial application to intercept communications was granted on November 17, 2003 and was extended on February 9, 2004. In addition to the belief that the Plaintiff had, at a minimum, some knowledge of who was involved in the murder, the Police had information about the Plaintiff’s participation in illegal drug trafficking activities, and this potentially provided Detective Brown and other officers with leverage in interviewing him to try and obtain information concerning who was involved in the murder.

[6] During the murder investigation, the Plaintiff was observed participating in repeated illegal activities; essentially, the trafficking of illegal drugs such as crack cocaine. As a police officer and investigator, Detective Brown retained this information.

[7] When the murder investigation concluded, Detective Brown commenced a formal investigation of the Plaintiff in relation to his illegal activities, including those documented in the course of the murder investigation. This investigation included the following information:

a. In the period of November 17, 2003 to April 7, 2004, the Plaintiff was a very active crack cocaine trafficker and was also a distributor who used other people to “run”, or traffic, crack cocaine; most transactions were street level transactions in the 0.2 grams to 1.75 grams range, but also included the purchase of 9 ounces of crack cocaine and on one occasion a half kilogram of crack cocaine, all as documented on intercepted telephone calls; b. On February 4, 2004, the Plaintiff made arrangements to purchase, and did purchase, 1 ounce, i.e. 28 grams, of crack cocaine from the supplier of an acquaintance, Burhan Hassan; c. On March 12, 2004, the Plaintiff agreed with Hassan that the Plaintiff would rob Yusuf Libah who allegedly owed money to Hassan; it is unknown whether the robbery took place, however, the Plaintiff did agree to commit the robbery; d. On April 5, 2004, several crack cocaine customers of the Plaintiff were awaiting his arrival at an apartment on Arthur Street; the Plaintiff was arrested as he arrived at 96 Arthur Street and had in his possession 14.1 grams of crack cocaine, $450.00 Canadian currency and a digital scale; and, e. On April 6, 2004, in a search of the Plaintiff’s residence pursuant to a tele-search warrant issued that day, 196.1 grams of crack cocaine, $61,756.00 Canadian currency, $676.00 U.S. currency, an “Intratec” 9 mm Luger semi-automatic machine pistol, 100 9mm rounds of ammunition, a hunting knife and a body armour protective vest were found.

[8] On April 5, 2004, Detective Brown decided to arrest the Plaintiff for the offences of possession and trafficking of an illegal substance, namely crack cocaine, and of robbery. The grounds for arrest was the information gathered in his investigation to that date. On April 6, 2004, Detective Brown decided to charge the Plaintiff for these offences.

[9] As noted in the Statement of Claim, the Plaintiff admits that upon his arrest and related search, drugs, money, a hand gun and ammunition were seized from him. Certificates of Analysis confirmed the existence of crack cocaine seized from the Plaintiff.

[10] The evidence gathered in relation to the Plaintiff pursuant to these authorizations was excluded criminal proceedings pursuant to a decision of Justice Fraser dated September 9, 2005 where he found a breach of the Plaintiff’s s. 8 Charter rights. In excluding the evidence pursuant to s. 24(2) of the Charter, Justice Fraser was critical of the information provided by Detective Pirt and concluded that the breach had not been committed in good faith.

Issues

[11] The following are the issues on this motion:

1. Whether this matter is suitable for determination on a motion for summary judgment;
2. Whether a claim in negligent investigation, malicious prosecution and breach of section 7 Charter rights is made out;
3. Whether the doctrines of res judicata or issue estoppel apply;
4. Whether, if any of the Plaintiff’s Charter rights have been infringed, the Plaintiff has received an appropriate remedy, and,
5. Whether the Plaintiff has suffered compensable damages at law.

Position of the Defendant

[12] The Defendant submits that the evidence establishes that reasonable and probable grounds existed to arrest and charge the Plaintiff; that there is no evidence of malice on the part of the investigators; that no breach of the Plaintiff’s Charter rights occurred; that the Plaintiff has received an appropriate remedy in the related criminal proceedings for any alleged Charter breach; and that the Plaintiff has not suffered compensable damages as he likely committed the offences for which he was arrested and charged.

Position of the Plaintiff

[13] The Plaintiff argues that the Defendant is attempting to re-litigate issues already decided before Justice Fraser and that this motion constitutes an abuse of process and a collateral attack upon the decision of the Ontario Court of Justice, which was not appealed. He submits that an issue estoppel has been created with respect to Justice Fraser’s findings regarding the legality of and manner in which the Defendant procured a warrant to intercept the Plaintiff’s private communications.

[14] The Plaintiff submits that the issues relating to reasonable and probable grounds and bad faith of the Defendant can be determined based on the record and the decision of Justice Fraser on exclusion of the evidence. The Plaintiff does not admit that the question of whether the Plaintiff likely committed the offences of which he was charged is a relevant or determinative issue for trial. The Plaintiff further submits that he has suffered compensable damages over and above the remedy he has received for the breach of his Charter rights.

[15] The Plaintiff submits that partial summary judgment should be granted in his favour on the following issues: the Defendant’s investigation of the Plaintiff was not done in good faith; the Defendant lacked reasonable and probable grounds to arrest and charge the Plaintiff; and the claims of negligent investigation, malicious prosecution and ss. 7 and 8 Charter infringement have been made out. In all other respects, the Plaintiff maintains that the summary judgment motion of the Defendant should be dismissed.

The Law

Issue 1: Whether the matter is suitable for determination on a motion for summary judgment

[16] Summary judgment must be granted if there is no genuine issue requiring a trial. On a motion for summary judgement, each party must put its “best foot forward.” As a result, the court is entitled to assume that the record contains all evidence which the parties will present if there is a trial.

[17] The Supreme Court in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87 explained the determination of whether there is no genuine issue requiring trial as follows at paras. 49-50:

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive at a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[18] While this is not determinative, the summary judgment procedure has been successfully applied to dismiss similar claims: Abboud v. Ottawa Police Services Board, 2016 ONSC 1052; Grann v. Thunder Bay (City) Police Services Board, 2015 ONSC 438 (summary judgment granted in part); Rotondo v. Ottawa Police Services Board, 2016 ONSC 8101; Farley v. Ottawa Police Services Board, 2016 ONSC 7817; Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497.

[19] As Justice Thorburn held in Wong v. Toronto Police Services Board at para 49:

49 Summary judgment plays a particularly important role in actions brought against prosecutorial entities. The availability of summary judgment protects the exercise of prosecutorial function in the absence of those entities being given complete immunity from tort claims. Accordingly, courts confronted with motions for summary judgment in factually-laden claims of negligent investigation, false arrest, false imprisonment, and malicious prosecution, are encouraged to carefully examine the factual record and the case as pleaded to determine whether summary judgment should be granted.

Issue #2: Whether a claim in negligent investigation, malicious prosecution and breach of s. 7 Charter rights is made out

[20] In Hill v. Hamilton Wentworth Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 68, the Supreme Court held that the standard of care with respect to the torts of negligent investigation is informed and determined by the presence or absence of reasonable and probable grounds to arrest and charge. In Farley v. Ottawa Police Services Board, 2016 ONSC 7817 at para. 33, Justice MacLeod of this Court noted that the tort of malicious prosecution also includes as one of its elements the presence or absence of reasonable and probable grounds to arrest and charge.

[21] The Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251 defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more.

[22] As explained by Thorburn J. in Wong supra at para. 61:

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

[23] In Wong, the finding of reasonable and probable grounds was fatal to the plaintiff’s claims for false arrest or imprisonment, negligent investigation, malicious prosecution, and breach of his s. 7 Charter rights.

Issue # 3: Whether the doctrines of res judicata or issue estoppel apply

[24] In Mendlowitz v. Chiang (Res Judicata), 2011 ONSC 1989, the court set out the following conditions for res judicata or issue estoppel to apply:

i. That the same question or issue has been decided; ii. That the decision was judicial and final; and, iii. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised.

Issue #4: Whether, if any of the Plaintiff’s Charter rights have been infringed, the Plaintiff has received an appropriate remedy

[25] The Defendant recognizes that there has been a determination in the Plaintiff’s criminal proceedings that the Plaintiff’s s. 8 Charter rights were infringed.

[26] In Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the Supreme Court established a four step test for evaluating claims for Charter damages:

1. The plaintiff must establish a Charter breach;
2. The plaintiff must establish that damages serve the objectives of compensation, vindication of the right, or deterrence of future Charter breaches;
3. The defendant can attempt to establish countervailing considerations that render damages inappropriate or unjust;
4. The Court must decide on a quantum of damages.

[27] The Supreme Court then concluded that a functional approach to damages was required:

34 A functional approach to damages under s. 24(1) means that if other remedies adequately meet the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) would serve no function and would not be “appropriate and just”. The Charter entered an existent remedial arena which already housed tools to correct violative state conduct. Section 24(1) operates concurrently with, and does not replace, these areas of law. Alternative remedies include private law remedies for actions for personal injury, other Charter remedies like declarations under s. 24(1), and remedies for actions covered by legislation permitting proceedings against the Crown.

Issue # 5: Whether the Plaintiff has suffered compensable damages at law

[28] The Plaintiff claims damages for negligent investigation and for Charter breaches. The Supreme Court of Canada was explicit in its decision creating the tort of negligent investigation that compensable damages are an element of the cause of action. [^1] The Supreme Court of Canada was explicit in Vancouver (City) in setting out the criteria for civil Charter claims that compensable damages are a required part of any such claim.

[29] The Supreme Court of Canada in Hill has reiterated that in a civil claim, the plaintiff must prove every element of his or her case. This statement was made to specifically address a concern that guilty persons who are acquitted may be able to unjustly recover in tort at para. 92:

92 On the other hand, lawful pains and penalties imposed on a guilty person do not constitute compensable loss. It is important as a matter of policy that recovery under the tort of negligent investigation should only be allowed for pains and penalties that are wrongfully imposed. The police must be allowed to investigate and apprehend suspects and should not be penalized for doing so under the tort of negligent investigation unless the treatment imposed on a suspect results from a negligent investigation and causes compensable damage that would not have occurred but for the police’s negligent conduct. The claimant bears the burden of proving that the consequences of the police conduct relied upon as damages are wrongful in this sense if they are to recover. Otherwise, punishment may be no more than a criminal’s just deserts — in a word, justice.

Analysis and Conclusion

[30] In this case, the evidentiary record is complete with respect to the subject investigation and the relevant issues in this matter and I conclude that the necessary findings of fact for this motion can be made without the requirement of a trial.

[31] I am satisfied that the evidence supports the existence of reasonable and probable grounds to arrest and charge the Plaintiff for drug trafficking and robbery, being: (a) multiple documented sales of crack cocaine, (b) multiple documented purchases of crack cocaine, including quantities as large as 9 ounces, (c) possession of large amounts of cash, (d) documented agreement to commit a robbery, and, (e) possession of a semi-automatic hand gun and ammunition. Detective Greg Brown believed that the necessary grounds to arrest and charge the Plaintiff did exist.

[32] When gathering the evidence supporting the grounds for the Plaintiff’s arrest and charge, the Ottawa Police acted pursuant to warrants which were validly issued at that time. The fact the evidence was excluded at trial does not undermine Detective Brown’s reasonable and probable grounds at the time of arresting Mr. Obiorah. I conclude that there is no valid claim in negligent investigation, malicious prosecution or for a remedy pursuant to s. 7 of the Charter.

[33] In my view, the Plaintiff has misinterpreted the effect of Justice Frasers’s finding of a Charter breach and his resulting exclusion of the evidence for the purposes of his criminal trial. His decision does not erase the evidence from the analysis of reasonable and probable grounds at the time Mr. Obiorah was arrested and charged.

[34] This leads to a consideration of the doctrines of res judicata or issue estoppel. The Defendant was not party to the proceedings before Justice Fraser and was unrepresented by counsel. Justice Fraser’s ruling is not res judicata in these civil proceedings beyond his finding of a breach of the Plaintiff’s s. 8 Charter rights in a criminal trial. He did not rule on the reasonable and probable grounds for arrest.

[35] In seeking damages beyond the Charter remedy he has already received, the Plaintiff relies on his pre-trial detention: assault by prison guards on one occasion during a drug search of the cells; failure of provision of regular access to an Imam (Muslim cleric) while placed under administrative segregation; desecration of the Plaintiff’s holy book, the Quran; placement on administrative segregation with mainly racialized men for a period of several months without explanation; taunting from prison guards for allegedly being a member of a gang by the acronym LBC; being singled out for added scrutiny; hostile treatment by prison guards for being labelled a gang member; being subjected to unsanitary conditions while in detention; and being subjected to overcrowding while being held at the Ottawa Carleton Detention Centre.

[36] If those allegations are true, they form the basis of a separate action against those who are responsible for the management of the Ottawa Carleton Detention Centre. These claims are not set out in the action against this Defendant and there is no claim of arbitrary imprisonment or detention or a breach of the Plaintiff’s s. 9 Charter rights.

[37] The Plaintiff complains about public statements made by the Defendant relating to Plaintiff’s alleged gang involvement. There is no claim in defamation against this Defendant.

[38] The Plaintiff further argues that the Defendant has not been deterred from the conduct that led to the Charter breach and he cites public statements from the former Police Chief regarding Justice Frasers’ ruling and the public criticism of those statements.

[39] While the Chief expressed public disappointment and disapproval of the ruling, he did indicate that he would be “following up” presumably with some kind of investigation into the matter. There was no appeal of Justice Fraser’s decision.

[40] The Plaintiff has already received a substantial remedy in the exclusion of evidence and dismissal of serious charges, and I conclude that no further remedy is appropriate in the circumstances of this matter. I adopt the reasoning of Justice Smith in Abboud v. Ottawa Police Services Board, 2016 ONSC 1052 at paras. 48 and 49:

48 The plaintiffs must provide evidence to show that damages would serve one or more of the functions namely compensation, vindication or deterrence of future Charter breaches by the state.

49 I find that the plaintiffs have not proven on a balance of probabilities that monetary damages are needed in order to compensate them or that monetary damages are required to highlight the harm that the breach caused to society. Finally the plaintiffs have not provided evidence to show that the police officers and Police Board must be deterred to ensure state compliance with the Charter. The plaintiffs did not produce any evidence that the Police had a general practice of obtaining search warrants for residences without ensuring that they had reasonable and probable grounds to obtain a search warrant.

[41] The Plaintiff has not produced any evidence that the Defendant had a general practice of obtaining warrants for interceptions of communications without ensuring that the police officers had reasonable and probable grounds to obtain such a warrant.

[42] Finally, the Plaintiff’s claim does not meet the criteria for a monetary Charter remedy. In the circumstances of this case, where he likely committed the offences for which he was charged and a decision has been rendered which declared a Charter breach and provided a significant remedy, it would be inappropriate or unjust to award him damages.

[43] The evidentiary record shows that the Plaintiff likely did commit at least one of the offences. He has made damaging admissions in his Statement of Claim. The evidence establishes that he was involved in:

a. multiple documented sales of crack cocaine, b. multiple documented purchases of crack cocaine, including quantities as large as 9 ounces, c. possession of large amounts of cash, d. a documented agreement to commit a robbery, and, e. possession of a semi-automatic hand gun and ammunition.

[44] For these reasons, the Defendants’ motion for summary judgment is granted and the claim against the Defendant is dismissed.

[45] If the parties are unable to agree as to costs, the Defendants are to provide me with their costs submissions not exceeding 10 pages in length within 20 days of the release of this Decision, and the Plaintiff, 20 days thereafter.

Mr. Justice Robert N. Beaudoin

Released: January 9, 2019

[^1]: Hill at paras 90-92; Grann supra, at para. 22