Court File and Parties

Court File No.: 436/16 Date: 2019 05 30 Superior Court of Justice - Ontario

Re: Dale James, Plaintiff And: Peel Regional Police Services Board, PC- Bisson (also known as Badge No. 3710), PC-Scott (also known as Badge No. 3841), PC– Stacey (also known as Badge No. 3886), PC- Deston (also known as Badge No. 3659), Defendants

Before: Conlan J.

Counsel: Osborne G. Barnwell, Counsel for the Plaintiff Rafal Szymanski, Counsel for the Defendants

Heard: May 30, 2019

Endorsement

Motion for Summary Judgment

Introduction

[1] On January 28, 2016, the Plaintiff, Dale James (“James”), commenced an action, by way of a Statement of Claim, against the Defendants, Peel Regional Police Services Board (“Board”) and four Peel Police officers – Bisson (actually spelled Bissoon), Scott, Stacey and Deston.

[2] The Claim seeks damages of several hundreds of thousands of dollars for numerous alleged torts and several alleged Charter breaches.

[3] In a nutshell, the Claim alleges that, on January 20, 2016, in the late evening, at a Motel 6 in Brampton, Ontario, James was arrested for breach of recognizance. He remained in police custody for several hours until he was transported to the Brampton Courthouse, at which time the charge was withdrawn because the Recognizance was no longer in effect; it had expired on January 18, 2016 when James was tried and acquitted at trial in the Ontario Court of Justice at the Finch Courthouse in Toronto. The underlying charge, assault, laid by the Toronto Police Service, was dismissed. By the time of the arrest on January 20th, however, the CPIC database had not been updated to reflect what happened at Court two days earlier.

[4] The Claim alleges, further, that, on January 22, 2016, at the same Motel, James was unlawfully stopped and harassed by the Peel Police.

[5] The Board has defended the action, on behalf of itself and the four named officers. Liability and damages are both denied.

[6] James moves for summary judgment in his favour. The Motion is opposed. There is no cross-motion brought by the Defendants.

[7] In the Factum filed on his behalf, at paragraph 6, James submits that the most salient fact is that there were no reasonable grounds for his arrest and detention on the charge of breach of recognizance.

[8] In their Factum, at paragraph 2, the Defendants summarize their position on the Motion as being that the arrest of James on January 20th was lawful; it was based on reliable CPIC information, and the Peel Police had no reason to believe or even suspect that the information was inaccurate because another police force had failed to update it after James’ court attendance in Toronto on January 18th. Further, there was no police harassment of James at the Motel on January 22nd; rather, there was a brief detention of James to investigate potential drug activity and/or prostitution.

The Law

[9] This Court shall grant James’ Motion for summary judgment if it is satisfied that there is no genuine issue requiring a trial: Rule 20.04(2)(a) of the Rules of Civil Procedure. To determine that question, the Court may weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence: Rule 20.04(2.1). Oral evidence may be directed, by way of a mini-trial: Rule 20.04(2.2).

[10] The onus of proof is on the moving party, James. The standard of proof is on a balance of probabilities.

[11] Given the clear direction of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, there is no dispute between the parties regarding the general legal principles applicable to this Motion for summary judgment. I adopt paragraphs 19 through 25 of the very recent decision of Justice Doi of this Court in Khan v. Moore, 2019 ONSC 2801, reproduced below.

[19] The test for granting summary judgment is well-established.

[20] Under Rule 20.04(2)(a) of the Rules of Civil Procedure, the court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to a claim or defence:

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.

Hryniak v. Mauldin, 2014 SCC 7 at para. 49

[21] Pursuant to Rule 20.02(2), a responding party to a summary judgment motion cannot rest solely on allegations or denials in its pleadings, but must show specific facts in affidavit materials or other evidence setting out a genuine issue requiring a trial. Each side must “ put its best foot forward ” with respect to the existence or non-existence of material issues to be tried; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26 and 33; aff’d 2014 ONCA 878. The motion record is to contain all of the evidence that the parties would present if the matter proceeded to trial. A party who fails to adduce such evidence risks losing.

[22] The court should first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers under Rule 20.04. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute in circumstances where summary judgment would be a timely, affordable and proportionate procedure.

[23] If there appears to be a genuine issue requiring a trial, the court should then determine if a trial can be avoided by using the fact-finding powers under Rule 20.04. Using these powers will not be contrary to the interests of justice if doing so will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole; Hryniak at paras. 66 and 67.

[24] Where credibility is important on a summary judgment motion, the court must take great care to ensure that decontextualized affidavit and transcript evidence does not lead to substantive unfairness that likely would not arise during a full trial where the trial judge may determine credibility after seeing and hearing all the evidence; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.

[25] A motion for partial summary judgment is a rare procedure for discrete issues that may be readily bifurcated from the main action and dealt with in an expeditious and cost effective manner; Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34; Mason v. Perras Mongenais, 2018 ONCA 978 at para. 22. Resolving an important claim against a key party “ could significantly advance access to justice and be the most proportionate, timely and cost effective approach;” Hryniak at para. 60. That being said, it may not be in the interests of justice to grant partial summary judgment if other claims will proceed to trial in any event, as granting partial summary judgment will run the risk of duplicative proceedings or inconsistent facts; Ibid. Courts may also decline to grant partial summary judgment where it is possible that the trial judge “ will develop a fuller appreciation of the relationships and the transactional context than the motions judge ” which could give rise to a risk of inconsistent findings and substantive injustice; Baywood at para. 37; Butera at paras. 23-35.

The Law as Applied to this Case

[12] For the reasons that follow, James’ Motion for summary judgment is dismissed. Although counsel for James did not press the issue of damages at the hearing of the Motion, I have decided that liability also cannot be resolved at this stage of the proceeding.

[13] As reasons for a decision are written primarily for the benefit of the unsuccessful side, I will address each major submission advanced on behalf of James.

[14] First, it is argued that this was clearly an unlawful arrest for breach of recognizance because, quite apart from the CPIC issue, James having spent one overnight at the Motel could not possibly amount to a breach of the residency condition of his Recognizance.

[15] Assuming without deciding that spending one night at a Motel cannot be seen as a breach of a bail term that one shall reside elsewhere, the problem with the said submission is twofold. One, it improperly conflates the concept of a prima facie case for conviction and the test for reasonable and probable grounds for an arrest. Reference must be had to the test for the latter as set out in paragraph 17 of the seminal decision of the Supreme Court of Canada in R. v. Storrey, 1990 SCC 125, [1990] S.C.J. No. 12.

17. In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[16] At a minimum, it cannot be said that there is no genuine issue for trial as to whether that test was satisfied here.

[17] Two, James’ submission ignores that the evidentiary record is unclear as to whether the police knew or ought to have known that James spent only one overnight at the Motel. Having reviewed carefully all of the transcript references from the April 2, 2019 examinations of officers Noonan (pages 39 to 40), Scott (page 10) and Bissoon (page 7) that were referred to this Court by counsel for James, I am of the view that it remains a genuine issue of fact whether the police knew, before the arrest, that James had only been at the Motel for one overnight. That genuine issue of fact requires a trial.

[18] Second, it is argued that, during and after the arrest of James, he protested forcefully and made it known to the officers that the Recognizance was no longer in effect. I accept that, however, those protestations do not necessarily alter the assessment of whether, in light of the CPIC information, the arrest was a lawful one. R. v. Bacchus, 2012 ONSC 5082, [2012] O.J. No. 5902 (S.C.J.), at paragraph 116.

[19] Third, it is argued that this Court ought to reject the evidence of Sergeant Noonan, “Noonan” (who is not a named Defendant in the action, I might add), because he is, in the words of counsel for James in oral argument on the Motion, a “pathological liar”. I simply disagree with counsel for James that the evidentiary record bears that out. While it is true that Noonan’s evidence differs from that of Bissoon and Scott (the arresting officer) on, for example, whether James was protesting the arrest and trying to persuade the officers that the Recognizance was no longer in effect, that is a far cry from labelling Noonan a liar such that this Court, on a written record alone, ought to place no weight on his evidence.

[20] Fourth, pointing to Bacchus, supra itself and the ensuing years between then and now, it is argued that it is common knowledge among police officers that there are significant problems with the information on CPIC. Thus, that information ought not to have been relied upon by these officers, at least not without further investigation, it is submitted. Here, however, officer Scott, who effected the arrest of James, was a relatively inexperienced constable. His unequivocal evidence to date is that he did not know or have any reason to suspect that the CPIC information about James’ Recognizance was not current. Further, it must be noted that Justice Durno held in Bacchus, supra the exact opposite of what is being submitted on behalf of James – Durno J. found that the police in that case had reasonable and probable grounds to arrest the subject based on what turned out to be incorrect CPIC data.

[21] Fifth, it is argued that the police did nothing to investigate the offence after James was arrested and taken to the police station, and that further investigation was warranted given his continued and loud declarations of his innocence. The problem with that submission is that the evidentiary record to date suggests otherwise. Within minutes of arriving at the police station after the arrest, the officers requested and obtained from Toronto Police Service the Recognizance document in question, which appeared to be valid on its face. In addition, almost immediately, the police contacted James’ brother (the residential surety), whose information only solidified the legitimacy of the arrest when he said that he had not seen James for days.

[22] Sixth, it is argued that the investigative detention of James by the police at the Motel two days later, on January 22, 2016, was clearly unlawful as it was without any reasonable suspicion that he was involved in any criminal activity. I disagree. Deston’s unchallenged evidence is that the Motel was well known for illegal narcotics and prostitution dealings, and that James’ motor vehicle was observed at the property for an unusually short period of time, and that the said vehicle made a sharp evasive maneuver when James, the driver, saw the police vehicle. There is, at a minimum, a genuine issue for trial as to what happened at the property on January 22nd.

[23] Seventh and finally, as an overall submission, it is argued that it would be pointless to delay a decision on liability in this case because there are simply no material facts in dispute. I disagree. Beyond what has been dealt with above, it is clear from the material filed that this case is all about racial profiling. That issue is distinct from the lawfulness of the arrest. In other words, a Court could find that the arrest of James was without reasonable and probable grounds but was also not influenced by racism, bigotry or stereotypes. These officers deny any racial profiling, but that is expected and not the end of the inquiry as it is a phenomenon and a genuine societal concern that necessarily depends on circumstantial evidence. Perhaps that evidence will succeed at trial, but to ask this Court to reject the denials of the police officers and infer racial profiling from the circumstantial evidence deposed to by James and Ms. Mullings (his former girlfriend who was present at the time of the arrest at the Motel), all in writing, is, with respect, unreasonable.

[24] This is not a case where full or partial summary judgment ought to be granted. Neither is it a case where a mini-trial of sorts is appropriate. There are genuine issues for trial involving disputed and material facts, and even the submissions advanced on behalf of James acknowledge, implicitly, that credibility of the witnesses is crucial.

[25] Simply put, in the words of the Supreme Court of Canada in Hryniak v. Mauldin, supra, even in light of the expanded powers in Rules 20.04(2.1) and (2.2), a trial cannot be avoided here. I am unable to make the necessary findings of fact.

Conclusion

[26] The Plaintiff’s Motion for summary judgment is therefore dismissed. The proceeding shall continue in the normal course.

[27] Order accordingly. On costs, if not settled between the parties, they are presumed to go in favour of the Defendants, however, I will receive written submissions. The Defendants shall file theirs within thirty (30) calendar days of today, and the Plaintiff shall file his within fifteen (15) days thereafter. No reply is permitted without leave of the Court. Each submission shall be limited to two pages, excluding attachments such as a Costs Outline, a Bill of Costs, and copies of offers to settle.

[28] As a final comment, I recommend that counsel arrange for a judicial pretrial conference as soon as possible. It seems to me that this case would benefit from some judicial input on resolution.

Conlan J. Date: May 30, 2019