COURT FILE NO.: 6166/15

DATE: 2019/08/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

B.K, B.J.K., E.K., G.K., S.K, K.K., E.E.K., )

S.S.K. by their Litigation Guardian, B.J.K., )

S.H.K. and G.A.K. )

Plaintiffs

• and-

Chatham-Kent Children’s Services (operated by the Children’s Aid Society of the Municipality of Chatham-Kent), Cristina Ruscica, Robin Rose, Chatham-Kent Police Services Board, Dennis Poole, Chief of the Chatham-Kent Police Services and Constable Gary Oriet

Defendants

R. G. Colautti, for the Plaintiffs

Sheila Handler, for the Defendants Chatham-Kent Police Services Board & Constable Gary Oriet

HEARD: April 1 & 2, 2019

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

GEORGE J.

BACKGROUND & NATURE OF ACTION

[1] B.K. and B.J.K. (“Plaintiffs”) were respondents in a child protection proceeding commenced by the Chatham-Kent Children’s Services (“CKCS”). That application arose from a joint investigation conducted by the CKCS and Constable Gary Oriet (“Oriet”) of the Chatham-Kent Police Service in relation to the Plaintiff’s adoptive child V.A. (“child”).

[2] The Plaintiffs claim that the child’s mental health issues and extreme behavioural problems led her to harm their other children. The child ultimately became too difficult for them to manage and she has since been re-adopted. The Plaintiffs further claim that the child has a specific mental health diagnosis – Reactive Attachment Disorder (“RAD”) – that caused her to lie pathologically and manipulate others. They plead that the placement broke down because of the child’s behavioural issues and inability of the CKCS to secure proper treatment for her.

[3] In 2013 the child made serious allegations against the Plaintiff B.K. who was ultimately charged with five counts of sexual assault, five counts of sexual interference of a person under sixteen years of age, two counts of assault with a weapon, two counts of assault, and five counts of invitation to sexual touching.

[4] In their Statement of Claim the Plaintiffs allege that in 2012 another individual made similar allegations against B.K., which were neither brought to their attention nor investigated by the police. They believe the child became aware of those allegations before speaking to the police about what she says B.K. did to her, and that she was improperly influenced by it.

[5] The Plaintiffs claim that CKCS employee and child protection worker Cristina Ruscica (“Ruscica”) provided misleading information to Oriet who “negligently accepted” it, subsequently failed to properly investigate, and ultimately charged and arrested B.K. with no grounds to do so. The charges led to B.K., at least initially, being ordered to stay away from the family home which, according to the Plaintiffs, caused the entire family needless stress and anxiety.

[6] The Plaintiffs bring this action against the CKCS, Ruscica, Chatham-Kent Police Services Board (“CKPS”), Oriet, Police Chief Dennis Poole, and Dr. Jennifer Coolbear. The action against Dr. Coolbear has since been dismissed and the Plaintiffs have abandoned their claim as against Dennis Poole. They say the remaining Defendants were negligent, acted in bad faith, and failed in their duty to properly investigate and prosecute both the child protection and criminal cases. With respect to Oriet, for whom the CKPS is vicariously liable, they provide the following particulars:

-he failed to remain objective throughout the course of the investigation;

-failed to conduct a complete and thorough investigation;

-failed to consider contradictory statements made by the child in December 2013 (only weeks after the initial disclosure);

-failed to comprehend the nature of the child’s illness and related challenges;

-failed to follow up on information provided to them that the child suffered from RAD, which they contend made her prone to lie;

-failed to take proper steps to verify what the child had alleged;

-did not have reasonable and probable cause to believe that the child’s statements were credible, believable, trustworthy, reliable or persuasive;

-failed to conduct an analysis to determine if the child’s statements were in fact true; and

-improperly shared personal information about B.K. with the child’s psychologist.

[7] The Plaintiffs plead that these acts and omissions were negligent, malicious, high-handed and caused B.K. past, present and ongoing nervous shock, anxiety and psychological trauma. They claim that, as a result, B.K. lost income, business and employment opportunities. For this they seek damages.

THIS MOTION

[8] This motion is brought by the CKPS and Oriet (collectively “Police Defendants”). It does not concern the CKCS or Ruscica who did not attend on this motion nor take a position. Litigation against those parties will proceed.

[9] The Police Defendants ask that the claim against them be dismissed as there is no genuine requiring a trial. They rely upon r. 20.04(2) of the Rules of Civil Procedure which provides that:

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[10] Their position is that, as Oriet possessed reasonable and probable grounds to charge and arrest B.K., his conduct is not actionable.

[11] The Plaintiffs claim that the CKPS is vicariously liable for the conduct of Oriet. And it is indeed the conduct of Oriet that is in question. With that, the balance of these reasons will focus on Oriet, keeping in mind that my ultimate decision impacts all Police Defendants.

FACTS / POLICE INVESTIGATION

[12] Oriet is an experienced police officer. Since 2014 he has been a member of the Internet Child Exploitation Unit. He became a detective constable in 2009 assigned to the Child Abuse Unit, which often required that he work collaboratively with the CKCS. He did not remain in that unit long as in 2012 he was moved to the Vulnerable Victims Unit which primarily investigated allegations of elder abuse and financial crimes. However, in November 2013 he was assigned back to the Child Abuse Unit to cover for another officer who was on leave. It was during this temporary assignment that he became involved in this matter.

[13] His involvement began when he met with representatives of the CKCS including Ruscica. He was advised of a historical sexual assault involving the child. He learned about the child’s history, from where she came, and the various problems during her time with the Plaintiffs. He also learned that these allegations first came to light when the child disclosed them to psychologist Dr. Jennifer Coolbear who, as indicated, was initially a named Defendant.

[14] Oriet arranged for the child to attend at the CKCS for an interview on November 19, 2013. Both Oriet and Ruscica were present. Oriet observed that the child was “upset and uncomfortable and appeared to have difficulty discussing what had happened to her”. He deposed that “V.A.’s hesitation made me believe that what she was going to say was difficult for her to share. This behaviour is inconsistent with someone intending to make a false complaint. V.A.’s behavior was a typical presentation of someone who was having a difficult time sharing information with respect to something awful that had happened to them”.

[15] Oriet interviewed the child’s current adoptive mother who advised that V.A. struggled in her relationship with her adoptive father and would pull back if he tried to hug her. She recounted a conversation she had with the child who, in response to being asked whether

B.K. had mistreated her, shook her head yes. The child had told her that she attempted to disclose the abuse to her teacher but was not believed; that she had told her guidance counsellor; and had written a letter about what B.K. had done to her (which was not provided to the police). She advised Oriet that the child had been diagnosed with ADHD and that to her knowledge no other diagnoses had been made.

[16] In his affidavit Oriet details why he believed the child and why he made the charging decision he did. At para. 14 of his affidavit sworn January 25, 2017 he writes this:

At this time it was my belief that I had reasonable and probable grounds to charge B.K. with the above noted charges. I formed this belief independently. I understand that this belief was also shared by Ms. Ruscica. Further, it was psychologist, Dr. Coolbear, who brought V.A.’s allegations forward. It was my belief that Dr. Coolbear would also have

believed the allegations to be true as she has a duty to report such allegations she believes to be true.

[17] Shortly thereafter Oriet interviewed the child’s grades two and three teacher, Sandra Rader. She advised that the child would often attend school and report that B.K. did things that she felt were wrong; that the child always “acted like she was hungry”; that B.K. had directed her to not provide the child food; that B.K. would report to her that the child lied all of the time and “made up stories”; that B.K. warned her that the child was a danger to younger children; and that B.K. attended at the school on the day the child was being placed in CKCS custody with all of her possessions in a garbage bag.

[18] Oriet interviewed another child who had lived with the Plaintiffs around the time she was eight and nine years old. This child reported that, at least at first, things were good, but that once the Plaintiffs got more comfortable with her punishments increased. She reported that they often accused her of lying and stealing food. She told the police that sometimes the punishments “got out of hand”, and that she was spanked, locked in her room, and forced to read the bible. She said she had to wear long sleeve shirts, turtle necks, and jeans in order to hide her bruises.

[19] On November 25, 2013, Oriet contacted B.K. and advised him that he had reasonable grounds to arrest him. Arrangements were made for B.K. to turn himself in.

[20] The investigation continued. On November 26, 2013 Oriet interviewed B.K. who declined to answer questions, which was his right. At para. 24 of his affidavit Oriet deposed that:

B.K. did not provide me with any exonerating evidence. He did not give me any investigative avenue to go down. The only potential avenue he gave me was V.A’s alleged Reactive Attachment Disorder diagnosis which I investigated further…

[21] For reasons I will highlight throughout the balance of the reasons the issue of the child’s RAD diagnosis is a red-herring. I was told that children diagnosed with RAD are controlling, prone to lie, lack remorse, show no regard for consequences, and are narcissistic and manipulative. In my view, even if this is true, and even if the child suffers from this particular ailment, in these circumstances it had no bearing on the officer’s formulation of his grounds to charge and arrest, nor could it have. Plaintiff counsel focussed intently on this in his submissions, I suppose to suggest that should a child have such a diagnosis, and should a child indeed be prone to lie, that the police ought to either ignore allegations or require corroboration.

[22] I am not entirely certain what the Plaintiffs believe Oriet should have done, other than to decline to charge B.K. I think the essence of their argument is this: the spectre of RAD

– given its symptoms and how it manifested itself in this child – should have led Oriet to disbelieve the allegations, or feel compelled to lay a charge only if there was corroboration. This is problematic as the law specifically prohibits this type of reasoning. First, a mentally disordered young person is not a disreputable witness who, before being capable of belief, would require a Vetrovec type warning to a jury. Second, sexual assault is not one of the

enumerated offences in the Criminal Code that requires corroboration (i.e. perjury, treason, forgery). Third, there is no common law rule requiring confirmatory evidence as a prerequisite to accepting an independent account of wrongdoing. In fact s. 274 of the Code specifically prohibits this, and s. 275 expressly repeals prior rules relating to evidence of recent complaint. This is the context in which Oriet’s conduct must be viewed. These provisions read as follows:

274. If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

275. The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1, 155 and 159, subsection 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.

[23] B.K’s charges are captured by these sections.

[24] Oriet interviewed other children in the home. At paras. 27 and 28 of his affidavit he deposed that:

27. [They] did not disclose sexual abuse. They did all however confirm physical discipline was used by B.K. It was reported that B.K. would sometimes cry while spanking them and would tell them that he does not like to do it but the Bible says he must. After the spanking they would hug and pray together…

28. It was my belief that they seemed coached on what to say to police. In my view this was particularly evident in my interview with G.K. who was 10 years old. One of the standard interlocutory questions I typically ask children is what the word “safe” means to them. G.K.’s response was “won’t be getting hurt or anything by parents…that doesn’t happen to me at all”. I also asked if she knew the difference between the truth and a lie and she responded that a lie would be if someone asks her “does your dad beat you…and I said YES! YES! YES HE DOES”. The truth would be “No, he doesn’t”. I asked G.K. these questions before giving her any indication of what the allegations were about.

[25] Oriet’s investigation did not end there. He also conducted:

-a telephone interview of Dr. Jennifer Coolbear who recounted her discussions with the child;

-a telephone interview of Donna Kazakis, who was a guidance counsellor at the child’s school and who had received an email from the child advising her that she had been raped when she was six years of age;

-an in-person interview of D.P., who was the child’s foster mother following her time with the Plaintiffs; and

-on December 12th, 2013 he met with the Crown Attorney to discuss the investigation and information received to date.

[26] Oriet’s affidavit details what he termed the child’s “new allegations” - accusations that B.K.’s father G.A.K. sexually assaulted her. He determined that there were no grounds to charge G.A.K.

[27] In terms of how this impacted B.K., Oriet deposed at para. 46 of his affidavit that “I had concerns about the new allegations as this was information that V.A. had the option of sharing with me when I interviewed her initially and she did not. I was concerned that this took away from the credibility of her original statement. Crown Attorney Semeniuk advised that he planned to book an appointment with V.A. and her mother to speak about the case and the prospect of conviction due to the new information provided by V.A.. I am not sure whether the meeting occurred or what was discussed”.

[28] On April 10, 2014 the charges against B.K. were withdrawn. This ended Oriet’s involvement in the matter.

PLAINTIFF COMPLAINTS ABOUT ORIET

[29] The Plaintiffs have a whole host of complaints about Oriet and his investigation. They contend that there were several what they call “pre-investigation events” that should have been known to Oriet which, in their view, would have negated any grounds that supported an arrest and charge. This includes:

-A home study that detailed the earliest stages of the child’s life in an hospital/orphanage in Europe. Apparently the conditions there were primitive and shocking. The babies had little human contact. The first seven months of the child’s life were spent in this facility where she received little stimulation and inadequate medical treatment.

-The fact that the Plaintiffs were missionaries in the Ukraine and had come to know the child through the course of their work.

-A home study completed by Kerry Vandergraft MSW that detailed the Plaintiff’s experience in the Ukraine and assessed their suitability as a placement for children. This home study unequivocally supported the Plaintiffs and praised their abilities.

-When the Plaintiffs returned home V.A. had to initially remain in the Ukraine as the authorities would not issue a death certificate for her biological father.

-B.K.’s allegations that the child bullied other children in the home, was manipulative, controlling, superficially charming and lacking in remorse. In B.K.’s view, the child enjoyed causing harm to other members of the family.

-I am not entirely certain how this is a pre-investigative event that ought to have been known by the police, but the Plaintiffs also note that they always did their best to address the child’s atypical behaviours but struggled to correct them. The materials go on to list the various attempts they made to obtain for the child appropriate assistance, many times without success, including efforts to have her admitted to CPRI.

-At some point in 2006 the Plaintiffs reached out to Therapeutic Parenting Specialist Nancy Thomas who expounded on the characteristics of children with RAD. Ms. Thomas wrote a letter on B.K.’s behalf for use in the child protection proceedings commenced by the CKCS.

-Various problematic behaviours the child had exhibited at school.

-B.K.’s complaints to the CKCS about the child’s behaviours at home.

-The assessment of Dr. Keck, dated April 5, 2007, noted that “it is not surprising to me that she meets the criteria for Reactive Attachment Disorder, Mixed Subtype…The most serious symptoms [the child] exhibits include: superficial charm, poor eye contact, indiscriminate affection with strangers, destructiveness, cruelty to animals (moderate), stealing, primary process lying, poor cause and effect thinking, and lack of conscience development (which may be somewhat age appropriate). [The child] also has severe food issues: she steals food from other children at school as well as from garbage cans…Through [the child’s] life with you, it seems as if she is in a constant state of dysregulation. She intentionally urinated when angry, she is oppositional, and she knocked her younger sister (eighteen months at the time) down a long staircase. She has also hurt the family dog…She exhibited a high sense of entitlement, and it seems that when she does not get what she perceives she should have, she attempts to take it. She acknowledges that she bullies other children, steals their lunches, and does not pay attention to your parental roles.” The Plaintiff’s responding materials go on at length to describe RAD; how it manifests itself in a child; and how, in their view, the police should have treated the child’s allegations in light of her condition.

-A March 29th, 2007 CKCS Safety Assessment concluded that no evidence of sexual assault was present with the child. It noted that two older children in the home were screened and they had made no disclosures. The assessment goes on to indicate that “[p]arents reported no concerns of sexual abuse of the two younger children. Does not appear to be a concern at this time”.

-The Plaintiffs had advised the CKCS about Dr. Keck’s diagnosis of RAD and opinion that it was not safe for V.A. to be around other children. In fact, CKCS

worker Lisa Pillon’s case notes from April 17, 2007 indicate that “Gregory Keck stated that he has never seen a child more pathological”.

-Dr. Doey, a CKCS psychiatrist, concluded that “…this 8 year old young lady is currently in the care of CAS on a voluntary agreement for the next 3 months. She is seen for difficulties with behaviour…she was quite manipulative of the other children within the home and also children at school…She would lie strenuously in order to defend herself, with such conviction that others would tend to believe her, such as the [plaintiff’s] extended family or teachers. Ultimately, if V.A. was caught in a lie, she would quite openly admit it, never showing any remorse or feeling for those within her family.”

-How, in the Plaintiffs view, the CKCS had not provided the family adequate assistance nor the child with appropriate treatment, as required under the temporary care agreement.

-Psychologist Dr. Baker completed a psychological assessment of the child and concluded that she is hyperactive with an average intellect, findings consistent with a RAD diagnosis.

-A CKCS email dated August 8, 2009 containing the subject line ‘Re: Lying' noting that “Dr. Gamble advised that it is a good idea when a child has a history of lying/stealing to sit down with them prior to going out where there would be an opportunity and identify it with the children before she goes – think of a reward for not doing the behaviour…The child is stealing and lying because they never felt important”.

-V.A. had been accessing child pornography after her removal from the Plaintiff’s home with no police investigation into where and how she had accessed it.

-After the child’s removal from the Plaintiff’s home, other foster parents had noted similar concerns about the child, in particular the frequency and intensity of her lies and propensity to act out violently.

[30] There are a multitude of other complaints. The bottom line is the Plaintiffs argue that had Oriet fully appreciated the complete history of this child he would not have charged and arrested B.K., and for this the Police Defendants must be held accountable.

[31] The Plaintiffs hope to establish that Oriet was negligent and that he breached their rights as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. They also seek a writ of mandamus that would require the CKPS to erase any record of B.K.’s arrest including his fingerprints.

ANALYSIS

Issues

[32] The negligence claim and alleged Charter violation clearly lie for the most part in this question: Did Oriet have sufficient grounds to arrest and charge B.K.? The legal standard of ‘reasonable grounds’ is the threshold that an officer must meet in order to perform some of their duties, including arrest. It is less than proof beyond a reasonable doubt, and less than proof on a balance of probabilities. An officer does not need to be satisfied that a prima facie case could be met. It is merely the point at which “credibility-based probability replaces suspicion”, suspicion of course being simply a feeling, belief or hunch; see Hunter

v. Southam 1984 33 (SCC), [1984] 2 SCR 145, R. v. Phung, 2013 ABCA 63, and R. v. Hosie 1996 450 (ON CA), [1996] OJ No 2175 (ONCA).

[33] A credibility-based probability is not a highly technical term. It is a practical and common- sense assessment of the totality of the circumstances; R. v. Ballendine, 2011 BCCA 221. The Plaintiffs argue that Oriet failed to look at and consider the totality of the circumstances and therefore could not have reasonably formed sufficient grounds.

[34] There is an objective component to this as well. A reasonable person placed in the position of the officer must be able to find that the grounds exist. In my view everything rises and falls on this question: Did Oriet have reasonable and probable grounds to believe that B.K. committed the offence alleged? Or better put, on the basis of the record before me can I determine, in a way that is just and fair, whether Oriet had reasonable grounds to arrest and charge B.K.? Or is a trial necessary in order to answer that question?

Summary Judgment

[35] Some basic points about summary judgment and when it is appropriate. In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court held that a trial is not required if a summary judgment motion can achieve a fair and just outcome. To assist in making this determination the rules now permit the motions judge to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence. At the end of the day I should engage these steps only if it would amount to a proportionate, more expeditious and less expensive means to achieve a just result. The Plaintiffs argue that since this matter will be proceeding against the CKCS and Ruscica, there is no need to short circuit this aspect of their claim. In other words, to do as the Police Defendants ask is neither necessary nor proportional. I disagree, while an assessment of proportionality is indeed essential, and while the fact this case will be proceeding regardless of my determination on this motion is a factor, it is not determinative. My task is to determine whether, in relation to the Police Defendants only, there is a genuine issue requiring a trial? And I am not convinced that this process is disproportionate to the nature of the dispute between the Plaintiffs and Police Defendants, and the interests at stake.

[36] I agree that, in the normal course, when some of the claims against some of the Defendants will proceed in any event, it may not be appropriate to grant summary judgment in relation to one or only some defendants. One must understand, however, that this is intended to

prevent duplicative proceedings and or inconsistent findings. In this case neither is a concern. I have heard two days of argument on this motion; reviewed an expansive set of materials including affidavits and cross-examination transcripts, all of which speak to the relevant issues; and throughout all have known and understood that the case against the other Defendants will proceed regardless. Also, there is no risk of an inconsistent finding. While the CKPS and CKCS routinely perform joint investigations each are governed by different rules and standards. To weigh in on whether Oriet had reasonable grounds will in no way impact another judge’s assessment of CKCS and Ruscica’s conduct and whether they fell short of the standard of care they owed the Plaintiffs.

[37] The record before me is comprehensive and permits a determination of whether Oriet had sufficient grounds to arrest and charge B.K.. There is no reason to simply leave this to trial. Furthermore, irrespective of the Plaintiffs claims against other Defendants, addressing this question now is more expeditious than a trial and can achieve a fair and just result.

[38] The Plaintiffs take the view that this case is not suitable for summary judgment. At para.

245 of their factum they put it this way:

…There is conflicting evidence on material points of fact and evidence. There are multiple witnesses. Credibility of several witnesses is at issue. Demeanor of witnesses in this type of case is an essential element in fact finding. The facts are complicated. There are serious issues of law that require a full evidential record that only a trial can provide. Despite the Supreme Court’s direction that a “culture shift” is needed, there are still cases that require a trial for their resolution. This is one of them. It was unreasonable for the CKPS to pursue this motion. It must be dismissed.

Bad Faith, Maliciousness & Police Lies?

[39] The Plaintiffs argue that Oriet did not just breach their Charter rights and act negligently, but that he was malicious, high-handed and contumacious of B.K.’s rights. They allege that he:

-acted egregiously and unlawfully in order to specifically cause harm to the Plaintiffs;

-acted maliciously by intentionally breaching their privacy by exposing them to public ridicule;

-intentionally inflicted nervous shock upon the Plaintiffs; and

-carried on an investigation recklessly, in bad faith, not caring whether the allegations were true.

[40] I want to address one further allegation advanced by the Plaintiffs. They complain that Oriet lied to B.K. and that this is evidence of bad faith. The police are permitted to

mislead, and indeed lie, to a suspect being interviewed. This right is not without limits, but the police have wide latitude to engage in tactics that might not be considered acceptable in most social settings, for the specific purpose of persuading a suspect to open up and talk. Whether the police go too far in this endeavour is for the court to determine, and depends largely on whether the subject has any particular vulnerabilities. In B.K.’s case I am aware of no trait or condition that would place him at risk of, for example, providing a false confession. Furthermore, not only can the police be untruthful they are under no obligation to share with an accused any information they may possess in relation to their investigation.

Reasonable & Probable Grounds

[41] Reasonable and probable grounds is related to the duty of care owed by police and the standard it must meet in investigating crimes. The Supreme Court in Hill v. Hamilton- Wentworth Police Services Board, 2007 SCC 41 held that:

…police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant’s action on this basis. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.

[42] This means that, in some cases, arresting and charging without sufficient grounds can lead to a finding of liability, as a reasonable officer would surely conclude that reasonable and probable grounds must exist before effecting an arrest. In other words if, at arrest, the officer lacks sufficient grounds, there is a prima facie case for negligent investigation. Conversely, if sufficient grounds do exist, it cannot be said that the officer acted unreasonably.

[43] The Plaintiffs point out that a negligent investigation may give rise to reasonable grounds. That is, a reasonable officer may have formed the grounds to arrest based on inaccurate facts. That is true. However, in this case the child did not at any point resile from her allegation that B.K. had abused her. Regardless of any home studies or prior diagnoses, how could Oriet have possibly known, sufficient to vitiate any grounds he had then formed, that what he was being told was false. Moreover, there is no evidence that Oriet exhibited bad faith or high-handedness at any time before or after the charges were laid.

[44] There is an intersection between reasonable grounds and a plaintiff’s allegation of malicious prosecution. I will attempt to illustrate by pointing out that which must be proven in order to succeed on such a claim. A plaintiff must be able to establish these elements:

-that the proceedings were initiated by the Defendant;

-the proceedings were terminated in favour of the Plaintiff;

-there were no reasonable and probable grounds; and

-the existence of malice or proof that the primary purpose was not to carry the law into effect.

[45] The first two elements are likely met. Together with the CKCS, Oriet investigated B.K. and made the decision to charge him. And the charges against B.K. were ultimately withdrawn. However, in addition to malice, an essential element is the absence of reasonable and probable grounds. Meaning, if sufficient grounds to arrest exist a claim of malicious prosecution cannot succeed.

[46] Similarly, if Oriet had sufficient grounds to charge and arrest B.K., not only would that claim fail but there would be no Charter breach and no available remedy under s. 24(2).

[47] Reasonable grounds is not a fixed concept, meaning it must be assessed at various points and not just at the time of arrest. In other words, additional information may vitiate the original grounds. I will speak more about this in a moment, but in my view the system worked as it should have post-arrest. In the aftermath of the allegations against G.A.K., and after consultations with the Crown Attorney, the decision was made to withdraw B.K.’s charges. That is what is supposed to happen. I have no idea how, in light of this, one could conclude that the police were malicious, high-handed or even negligent. These are simply not available findings on this evidence.

[48] I was asked to carefully review the audio recording of Oriet’s interview of Dr. Jennifer Coolbear which, according to the Plaintiffs, reveals Oriet’s malice. I have done so and in my view the Plaintiff overstates the significance of this call. I characterize it as Oriet, near the end of the interview, attempting to communicate two basic points. First, that in his experience these kinds of cases – historical sexual assaults – are challenging and that obtaining convictions can be difficult given the standard of proof. Second, he offers his opinion that the CAS will continue to be involved with [B.K.’S] family, drawing what to my mind is a very simple and obvious distinction between the standard of proof beyond a reasonable doubt and that which governs child protection proceedings. He does not put it quite that way, but this is the essence of his comments. Perhaps Oriet embellished what lied ahead for B.K. (i.e. that he was going to be “registered as a sex offender”), but no reasonable person could possibly conclude that this conversation reveals sinister motives, whether considered in isolation or in conjunction with all of the other evidence. If anything, what it does is conclusively prove that he and Dr. Coolbear genuinely believed the child.

A Further Word About RAD

[49] As I indicated earlier, whether or not the child has RAD is a red-herring. If indeed the child had such an ailment I accept that it would be important for the police to know. It is a

factor to consider. However, in the face of such a complaint, which was received not just by the CKCS and Oriet, but others including Dr. Coolbear, was Oriet to ignore the child’s allegations because she is mentally ill? Is it being suggested that a child complainant cannot be believed because they are troubled and have behaviour problems? Is the Plaintiff arguing that the timing of the child’s reporting should have had some bearing on Oriet’s charging decision or impact upon his formulation of grounds? Is it being implied that a child would have fought back harder against an abuser, or that others in the home would have surely seen or heard something if it indeed happened?

[50] Much of this would be irrelevant and off-limits at trial, let alone at the investigative stage.

It is important to remember that:

-Sexual assault can and does happen to anyone, regardless of age, ethnicity, or socioeconomic status. Those that fit this child’s profile are not immune from this type of victimization.

-Sexual assault is not a crime committed by strangers only; it is often committed by those close to the victim. I point this out as it seemed to be implied throughout that B.K. could not possibly have done this given what he had done for the child (essentially rescuing her from a life of misery in Europe), and because of his reputation as a family man with a strong spiritual grounding.

-It is a myth that women and girls make up stories about being sexually assaulted. That is not to say false complaints do not exist, and of course people who in fact commit crimes are sometimes found not guilty. But it seemed to be suggested that because the child was a young girl with a troubled history and mental health issues, that she was not just prone to lying but was prone to making up a story like this. I would ask this question: if a trier of fact cannot resort to this line of reasoning how could Oriet?

-A trier of fact is specifically prohibited from reasoning that, if a woman does not report sexual assault to the police immediately or shortly after it happened, she must be lying. This too is a myth.

-The most important point to make on these facts is this. If indeed the child was as ill and troubled as I was told she was, so what? The whole argument surrounding this was somewhat unsettling. While not explicitly said, the implication was clear. Given this child’s illness and limitations she had to have been lying. To that I say, maybe she was; maybe she wasn’t. I do not know now, and Oriet could not have known then. Despite the anxiety and shame experienced by those like B.K. who have to endure ordeals like this, it is not unusual for these types of allegations to go unresolved. It is an unfortunate by-product of our system of justice, which is not perfect, but is the best process I can think of.

Plaintiff’s Failure to Le a d Evidence on Standard of Care

[51] There is no question that Oriet was either ill-informed about the existence of a RAD diagnosis, or chose not to accept what he had been told about it. It is reasonable to question assertions he makes in his affidavit surrounding what he did or did not know about it. It is important to note, however, that this is not a settled issue. There is no doubt that Dr. Keck, Nancy Thomas, and Dr. Doey opine on this. I cannot, however, ignore the opinion of Dr. Wolfe who was retained by the CKPS and CKCS and who expressed this view when asked whether a RAD diagnosis should have caused CKCS and Oriet to disbelieve the child:

There are no known conditions of mental or physical disability or impairment that would negate the need for an investigation following allegations of child sexual abuse, including RAD or DSED. Therefore, it is my opinion that such allegations would certainly merit a full police and social services investigation, regardless of any prior or current psychiatric or medical diagnosis.

Furthermore, the published literature reveals no evidence or suggestion that children or adolescents with previous or former RAD or DSED are more inclined (than other children) to make false allegations of sexual abuse. Knowledge of such a diagnosis in my opinion, would not have altered the importance of a thorough investigation.

Both the police and social worker interviews were appropriately conducted and well documented in my opinion. [V.A.]’s description of the abuse events (beginning on page 22 of her transcript) seems realistic. [V.A.]’s affect and words were consistent with those I have seen and hear from other child victims of sexual abuse. Her allegations imply the use of violent threats and intimidation by the accused.

The records suggest she tried to disclose her abuse to a teacher in grade 1 but her adoptive father (B.K.) intervened. She seemed to fear him despite being in a new placement several years later. All of these factors are consistent with the patterns of disclosure common to sexually abused children and the need for further investigation. None of these patterns are consistent with RAD. Allegations of abuse by children with intellectual, emotional or behaviour problems, no matter how severe, must be investigated as any other.

The statement of claim relies on the fact that [V.A.] was screened in 2007 at the time of adoption breakdown and she denied any abuse. The prior report would be of no consequence to the current allegations. CKCS records indicate that the alleged offender, B.K., was allowed to be present in the room during the screening. [V.A.] alleges that he had used violence and threats of violence to perform sexual abuse; therefore, his presence at the interview would have been intimidating to her and could suppress such reporting at the time. Furthermore, it is common for children and adolescents to disclose sexual abuse in a partial or delayed manner over time.

On the basis of the information provided to me and documented herein, it is my opinion that there was nothing in the police investigation that suggested there was no basis to believe the complainant and to lay charges.

[52] Dr. Wolfe was cross-examined. He is of the view that Dr. Keck’s letter, which is relied upon by the Plaintiffs, is not a proper psychological assessment. He also points out that Dr. Keck was not published, had no “scientific record”, and that his and Nancy Thomas’ treatment practices are controversial and the target of some criticism.

[53] For the Plaintiffs, the problem is this. They have not tendered any expert evidence of their own that speaks to the standard of care, or to the proper conduct of investigations generally, witness interviews, the import of a RAD diagnosis, and how that might impact upon the formulation of reasonable and probable grounds.

[54] Given the nature of the claim they had to present this evidence. It would be essential for them to ultimately succeed. For present purposes they had an obligation to put forward at this motion all of the evidence they would rely upon at trial. I cannot simply kick the can down the road in the event the Plaintiffs, at some later point, garner evidence that counters the evidence of Oriet or opinion of Dr. Wolfe. This, in my view, is fatal to the Plaintiff’s position. They had an obligation to “lead trump or risk losing”; Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200.

Oriet Had Reasonable & Probable Grounds

[55] I cite these factors in support of the notion that Oriet indeed had reasonable grounds to arrest and charge B.K.:

-The child’s allegations - as communicated to Oriet, and if true - satisfies the elements of each of ss. 265 (assault), 151 (sexual interference), and 271 (sexual assault). The reality of sexual assault cases, as well as any form of domestic violence, is it is extremely difficult to establish the absence of reasonable cause based on credibility; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339. This is just common sense. It would be impossible for a police officer, during the investigative stage, to conclude that they do not have sufficient grounds on the basis of a credibility question alone.

-In addition to the risk of allowing myths to infect the analysis of a sexual assault complaint, production and admissibility of a complainant’s medical and therapeutic records are subject to a fairly rigorous regime under the Criminal Code. There is no presumption that they are producible. In fact, pursuant to s. 278.3(4) the following reasons are insufficient, on their own, to establish that a record is likely relevant to an issue at trial or to the competence of a witness to testify:

-that the record exists;

-that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

-that the record may relate to the credibility of the complainant or witness;

-that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

-that the record may reveal allegations of sexual abuse of the complainant by another person other than the accused;

-that the record relates to the sexual activity of the complainant with any person, including the accused;

-that the record relates to the presence or absence of a recent complaint;

-that the record relates to the complainant’s sexual reputation; or

-that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

[56] Oriet is being attacked for failing to consider factors that a trier of fact could not rely upon in making a determination that rests upon a much higher standard of proof.

[57] One could reasonably argue that someone who has a history of lying, and who is prone to lie, may in fact be lying about the very subject matter that is being considered. But this is for a judge or jury to decide. Therefore, what seems like a valid argument on its face is really an attempt to have the Police Defendants held accountable for declining to do what they were not permitted to do and for failing to reach a conclusion that would fly in the face of the rules governing sexual assault cases.

Is Summary Judgment an Appropriate Procedure to Decide These Issues?

[58] I find that there are no deficiencies in the record that would prevent me from making a determination on the presenting issues. There was nothing untoward about the conduct of the investigation. Oriet did not just rely upon information received from the child or the CKCS. He conducted a thorough investigation, including interviews of others who had contact with the child in the past, other children in the home, and attempted to get B.K.’s version of events. And when things did go awry he consulted a Crown Attorney, as he should have.

[59] A trial is not required. There is no need to make an ultimate determination on the credibility B.K., the child, or Oriet.

[60] I have spoken repeatedly about reasonable and probable grounds, which informs the standard of care governing the police. This standard applies to arrest, all charging decisions, and the prosecution. That said, this standard must reflect the realities of what the police are tasked with doing. The standard does not create liability for minor errors or mistakes. Inconsistencies and evidentiary gaps do not necessarily detract from an officer’s grounds. Police are “not required to exhaust all avenues of investigation, establish that an accused has no defence, or even obtain an accused’s version of events”; 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656.

[61] Carey J. dealt with a similar situation in H.A. et al v. S.M. et al, 2019 ONSC 717. In that case the Plaintiff was charged, and acquitted after trial, of a historic sexual assault. Carey J., in dismissing the police defendants r. 20 motion, writes this…

44. …The defence asserts that there was no compelling evidence ever possessed by the investigators that the allegations against the plaintiff were untrue. In my view, there is a genuine issue in this case as to whether the police, either intentionally, negligently, or in combination ignored information presented to them post arrest, including H.A.’s sworn statement taken by Detective Mediratta that required further investigation that quite possibly would have led them to the same conclusions about the credibility of the complainant that were arrived at by the trial judge.

45. …where “[p]olice rely on uncorroborated testimony of a single witness and that testimony gives rise to reasonable and probable grounds for the arrest, the onus shifts to the Plaintiff to show that the police had “overwhelming evidence” to discredit that uncorroborated witness’s evidence”.

46. In my view, a real issue requiring a trial is whether the WPS investigation, reasonably conducted by properly qualified investigators, would have resulted in the discovery of the evidence that led Pomerance J. to discredit the complainant.

[62] I disagree with the last point – police are not required to exhaust every investigative avenue, nor to make ultimate determinations on credibility – but in the event I am wrong, this case is clearly distinguishable. In that case the prosecution continued through to verdict. Here it did not: frailties were identified, and the charges were withdrawn. If Oriet was truly motivated by bad faith does it not stand to reason that he would have vigorously pushed for the prosecution to continue. There is no evidence he did. In that case it appears as if the issue, post arrest, was that the police did not follow-up adequately. In this case the investigation continued up until the point the charges were withdrawn.

[63] The factual record in this case reveals an objective basis to support the subjective belief Oriet held. Would another officer have done something differently? Might they have identified and interviewed other witnesses? Would another officer have disbelieved the child and not held the necessary subjective belief in the complaint? Perhaps, but this is not the test.

[64] Three points, however, overwhelm everything else. First, the Plaintiff’s decision to proceed with argument on this motion without an expert report is fatal. It was necessary for them to adduce evidence that spoke to the standard of care which in this case is technical, complicated and outside the knowledge of an ordinary person. Quite frankly, this renders most of my comments within these reasons moot. Second, once the charge was laid it was up to the Crown to decide whether to continue the prosecution. While the police may be, and often are, consulted they have no control at that point. Third, the policy implications of deciding as the Plaintiffs suggest would be remarkable. Consider those domestic cases where, without corroboration, prosecutions continue in the face of a recanting complainant. Should the Crown and Police be held liable for that decision if the accused is ultimately found not guilty? Surely not.

[65] Another way to look at it is to consider the conflict that would then exist between a finding in the Plaintiff’s favour and the direction in USA v. Shephard 1976 8 (SCC), [1977] 2 SCR 1067 that an accused must be committed to stand trial in any case where there is admissible evidence which could, if believed, result in a conviction. I know that the Plaintiffs would not agree with this, but a reasonable, objective observer would have to conclude that the child’s complaint was at the very least capable of belief.

[66] This would apply equally to the s. 7 Charter claim. If one is the subject of a lawful police investigation and if charges are laid as a result of an officer having reasonable and probable grounds then there can be no violation of that accused’s s.7 right to life, liberty and security of the person. A trial is not required to determine this.

MANDAMUS

[67] The last issue to address is the Plaintiff’s request that the CKPS be directed to erase any record of B.K.’s arrest including his fingerprints. While the Statement of Claim refers to this as a request for mandamus, I agree with the Police Defendants that this is akin to a final mandatory injunction. Mandamus is an equitable remedy typically in the form of a court direction to a subordinate court or government body to do (or cease doing) that which they are obliged by law to do (or not do). That is not what we are talking about here. The Police are, in certain circumstances, permitted to refuse requests to destroy records, including when someone is accused of committing a primary designated offence under the Criminal Code which includes sexual assault. There is also a residual discretion afforded police to refuse to destroy if to do so would not be in the public interest. Police discretion to refuse is not unfettered but what we must keep in mind is that a writ of mandamus is the quashing of an illegal order, which does not quite apply in these circumstances.

[68] Moreover, to grant final injunctive relief requires the moving party to establish its legal rights. Such relief is rarely granted and in circumstances like these can only be granted

when there is a finding that the police conducted a negligent investigation. I have already concluded that the Plaintiffs cannot establish that, and that a trial is not required to reach that conclusion.

CONCLUSION

[69] The Police Defendants have satisfied me that there is no genuine issue requiring a trial.

Summary judgment is granted and all claims against the CKPS and Oriet are dismissed.

[70] Also before me is the Police Defendant’s motion to strike certain portions of B.K.’s affidavit. As I have granted summary judgment there is no need to address this on its merits. It is dismissed.

[71] Should the parties not agree on costs I invite written submissions not to exceed five pages in length, excluding a costs outline and any authorities relied upon. The Police Defendants shall file their written argument on or before August 30, 2019. The Plaintiffs to file on or before September 13th. There is no right of reply.

“Justice Jonathon C. George”

Justice Jonathon C. George

Released: August 15, 2019

COURT FILE NO.: 6166/15

DATE: 2019/08/15

ONTARIO SUPERIOR COURT OF JUSTICE

B.K., B.J.K., E.K., G.K., S.K., K.K., E.E.K., S.S.K. by

their Litigation Guardian, B.J.K., S.H.K. and G.A.K.

– and –

Chatham-Kent Children’s Services (operated by the Children’s Aid Society of the Municipality of Chatham- Kent), Cristina Ruscica, Robin Rose, Chatham-Kent Police Services Board, Dennis Poole, Chief of the Chatham-Kent Police Services and Constable Gary Oriet

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

Justice J.C. George

Released: August 15, 2019