Francis v. Edgar, 2019 ONSC 7454

COURT FILE NO.: CV-08-00359918

DATE: 20191223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KAREEM FRANCIS, LOIS FRANCIS, and MARIO FRANCIS

Plaintiffs

– and –

P.C. ADAM EDGAR (7820), P.C. HASIUK (9424), P.C. ROBERT TOBIN (3919) and TORONTO POLICE SERVICES BOARD

Defendants

COUNSEL:

Ernest J. Guiste, for the Plaintiffs

Robin Squires and Samantha Bonanno, for the Defendants

HEARD: September 16-20, 2019

JUSTICE S. NAKATSURU

[1] Back in 2007, when the Plaintiff[^1], Kareem Francis, was a young person, he was charged by the police with being involved in an armed robbery of a teenaged boy identified as T.P. The robbery took place at a shopping mall. The Plaintiff was innocent of the crime. His identical twin brother, Keron Mario Francis (“Keron”), did it, along with another young person identified as J.Y. A search warrant was executed by the police at the Francis home. A loaded, sawed-off shotgun and ammunition were found in the closet of a bedroom. As a result of this, the Plaintiff and Keron were charged with more offences. The Plaintiff was detained and served several months in pre-trial custody before the Crown withdrew all charges against him. Keron pled guilty to the offences regarding the robbery and the shotgun. J.Y. pled guilty to possession of stolen property.

[2] The Plaintiff now sues several police officers involved in his arrest and investigation, as well as the Toronto Police Services Board. A trial was held by way of simplified procedure.

[3] I dismiss all the various and sundry claims made in this action except one. I find that the police were negligent in their investigation against the Plaintiff by failing to properly investigate and account for the property taken from the suspects upon their arrest.

[4] These are my reasons explaining why I have come to this conclusion.

[5] Prior to getting to the merits of my decision, allow me deal with two quick matters. First, the Plaintiff concedes that the claims against P.C. Hasiuk should be dismissed. There is no evidence of any actionable wrongdoing by her.

[6] Second, the Plaintiff has argued pursuant to Snelgrove v. Steinberg Inc.[^2] that under rule 31.07 of the Rules of Civil Procedure, the Defendants should not be allowed to rely on information not provided in response to an undertaking without leave of the trial judge. The Plaintiff argued that much of the Defendants’ evidence was affected. Essentially, he argued that merely providing officer notes failed to answer the questions posed by the Plaintiff. I deferred my final decision on this until after I heard final submissions.

[7] I find that providing the officers’ notes adequately satisfied the questions posed by the Plaintiff and that the evidence is admissible. Except for the evidence of Staff Sgt. Lee, the Plaintiff did not ask for any specific remedy in his written submissions. A one-page note of Staff Sgt. Lee was initially inadvertently omitted in the Defendants’ response to the Plaintiff but was later provided in April 2019. On that basis, I find the Defendants properly answered. Alternatively, I would grant leave for its admission. The Plaintiff suffered no prejudice and the impugned information did not change the case that he had to meet. Of course, I appreciate that even though admissible, the Plaintiff’s arguments may have bearing upon the weight to be afforded to the evidence.

[8] In this action, the Plaintiff makes several claims, both under the Canadian Charter of Rights and Freedoms and in tort law. Most are overlapping. The boundaries of some are unclear. I have done my best to group them in an intelligible fashion.

[9] Before I address these claims, I point out the following. The witnesses were asked to recall events back in 2007 - over 12 years ago. Many of the witnesses had little reason to recall the events until recently. The reliability of recollections is therefore a key issue.

A. REASONABLE AND PROBABLE GROUNDS FOR THE ARREST

[10] The Plaintiff submits that P.C. Adam Edgar did not have reasonable and probable grounds to arrest him. As a result, the Plaintiff claims damages for a violation of the Charter and for the torts of negligent investigation, malicious prosecution, and/or false arrest.

[11] In Hill v. Hamilton-Wentworth, the Supreme Court of Canada established that investigating police officers owe a duty of care to the subjects of their investigations.[^3] The standard of care is that of a reasonable police officer in like circumstances at the time the decision was made. Lacking the requisite reasonable and probable grounds for arrest constitutes an automatic breach of the standard of care. In other words, the tort of false arrest is established where an arrest is made without reasonable grounds.[^4] To say it conversely, “a police officer is not liable for false arrest when the police officer has an honest belief and believes on reasonable grounds that the individual arrested committed the offence for which he was charged.”[^5]

[12] False imprisonment is the intentional and total confinement of a person against his will without justification. If a police officer acts with legal authority, his or her imprisonment of a person will be justified. An imprisonment will not be justified when it follows an unlawful detention or arrest: Ward v. City of Vancouver.[^6]

[13] The relevant provision of the Criminal Code that defines a peace officer’s power to arrest without a warrant is:

495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence[.]

[14] In R. v. Storrey, the Supreme Court of Canada stated that it must be objectively and subjectively established that “reasonable grounds” exist.[^7] It is not enough for the peace officer to personally believe that he or she has reasonable grounds to make the arrest; it must also be established that a reasonable person standing in the shoes of the police officer would also have believed that reasonable grounds existed to make the arrest. However, this threshold does not require the arresting officer to establish more. In Storrey, Cory J. noted that:

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.[^8]

1. Summary of Factual Findings

[15] The material facts regarding whether there were reasonable and probable grounds for the arrest of the Plaintiff are not greatly disputed.

[16] On February 2, 2007, the victim T.P. went to the Malvern Town Center located at 31 Tapscott Road in Toronto. As he approached the McDonald’s restaurant, he saw four males standing outside of the main entrance of the mall. T.P. knew a couple of them and said hello but received no acknowledgment. At around 2:36 p.m., T.P. left the McDonald’s and began walking through the parking lot.

[17] As he was walking, T.P. was approached by two young males. One, later identified to be Keron, asked to use the victim’s cellphone. T.P. said he did not have one and continued walking. As he entered a footpath, the two males ran up from behind. The other male grabbed T.P. from behind while Keron removed two rings from T.P.’s fingers, his watch from his wrist, and a necklace from his neck. Keron then pushed the victim back and the males started to leave. The victim was able to grab back his watch. As he tried to retrieve his other property, Keron stepped back and pulled up his shirt, exposing the handle of a black handgun that was in his waistband. The two suspects then left the area.

[18] After making some inquiries on his own to find out who the suspects were, T.P. contacted the police later that day. The police arrived. T.P. gave a statement to the police from 4:05 p.m. to 5:15 p.m. He identified one of the males as someone named Keron. He was then shown a photo lineup and positively identified Keron as being involved.

[19] At approximately 5:45 p.m., the police attended the area of Keron’s home. At 5:55 p.m., the police officers observed three males exiting the front door. The police officers were aware that Keron had an identical twin brother. All three males were immediately arrested at gunpoint. The three males were the Plaintiff, Keron, and J.Y.

[20] When initially confronted by the police, the Plaintiff did not obey the police command that he get to the ground. P.C. Edgar thus used force to ground him. P.C. Edgar arrested the Plaintiff. P.C. Edgar testified about what he perceived to be his grounds for the arrest. P.C. Edgar testified that he had information that Keron was involved in the robbery and had possession of a firearm during the robbery. He had past knowledge of the Plaintiff and Keron and knew them to be identical twins, although he had never spoken to them before. He was aware that they were identical-looking except for the fact that Keron had a scar on his neck. P.C. Edgar knew that they had previously been charged with possession of a firearm in their family home. The officer could not distinguish between the twins coming out of the house. P.C. Edgar testified that firearms can readily be transferred between individuals and that he was concerned about officer safety.

[21] P.C. Edgar subjectively believed he had reasonable grounds to arrest the Plaintiff. He testified that if grounds for the arrest proved not to exist, he would have released the Plaintiff.

[22] Staff Sgt. Robert Tobin (he was a Sgt. at the time) was the supervisor of the police crew. He testified that there were four grounds for arresting all three suspects exiting the house: (1) identical twins were involved, (2) they were wearing winter clothes resulting in the police not knowing who was who, (3) there was a firearm involved, and (4) every precaution had to taken to not endanger themselves or the public. In this case, there were two suspects involved in the robbery, as opposed to a single person. Thus, all three men were placed under arrest. The police planned to cut loose the person(s) not involved in the robbery once the situation was safe.

2. Analysis of Reasonable and Probable Grounds for Arrest

[23] P.C. Edgar subjectively believed he had the requisite grounds to arrest the Plaintiff. The subjective component of the test is therefore established. The reasons P.C. Edgar gave for making the arrest were not impeached in cross-examination. Indeed, the Plaintiff relied upon them in his submissions. The main issue I must decide is the objective component of the test.

[24] My starting point is the definition of reasonable and probable grounds. In R v. Hall, the Court of Appeal for Ontario stated the test for a lawful warrantless arrest under s. 495(1) of the Criminal Code must be one based on “a constellation of objectively discernible facts amounting to reasonable and probable grounds for a lawful arrest without warrant.”[^9]

[25] In Emond v. Ottawa-Carleton Regional Police Service, Polowin J. summarized the law concerning reasonable and probable grounds for arrest and detention as follows:

From the review of the above noted case law, a number of principles emerge. The police need not demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making an arrest. It is clear, if one views the tests to be applied at the various stages of the criminal process (those being, for arrest — reasonable and probable grounds, for prosecution — a reasonable prospect of conviction, at a preliminary hearing — evidence that, if believed, could lead to conviction, at trial — proof beyond a reasonable doubt) that a police officer exercises his or her discretion at the very lowest end of this continuum. As was noted by Scott L.J. in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), as quoted by the Supreme Court of Canada in R. v. Storrey, supra, "That requirement is very limited" (that is, the requirement that a police officer have reasonable and probable grounds).[^10]

[26] In R v. St. Clair, Campbell J. thoroughly outlined the key elements of the relevant standard:

According to the combination of ss. 495(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, a peace officer may arrest without warrant a person who has committed an indictable offence or who, “on reasonable grounds,” the peace officer believes has committed or is about to commit an indictable offence, or a person whom the peace officer finds committing a criminal offence.

The statutory requirement of “reasonable grounds” means that (1) the police officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the accused; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest. See v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at pp. 249-251; R. v. Hall (1995), 1995 647 (ON CA), 22 O.R. (3d) 289, 39 C.R. (4th) 66 (C.A.), at pp. 298-299; R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743, 117 C.C.C. (3d) 193 (C.A.), at para. 20, leave denied, [1997] S.C.C.A. No. 571; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225, at para. 83, affirmed, 2015 ONCA 673, 343 C.R.R. (2d) 103, at paras. 6-13; R. v. Notaro, 2018 ONCA 449, 27 M.V.R. (7th) 1, at paras. 34-36, 39-40.

As I have noted on earlier occasions, much has been written about the objective standard of “reasonable grounds” or “reasonable and probable grounds” in an effort to provide this important legal threshold standard with a greater degree of precision. See, for example, Can v. Calgary (Police Service), 2014 ABCA 322, 315 C.C.C. (3d) 337, at paras. 107-173; v. Shinkewski, 2012 SKCA 63, 289 C.C.C. (3d) 145, at para. 13; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 21-23; R. v. Grant and Campbell, 2015 ONSC 1646, [2015] O.J. No. 1229, at para. 92; R. v. Aguas, 2015 ONSC 3462, 335 C.R.R. (2d) 312, at paras. 55-56; R. v. Gordon, 2018 ONSC 1297, at para. 43; R. v. Williams, 2018 ONSC 3654, at paras. 104-105, 108-111. The governing appellate court jurisprudence articulates the following principles surrounding the practical application of this standard:

• Proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt, or even the establishment of a prima facie case against the accused. See v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at p. 1168; R. v. Storrey, at pp. 249-251; Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329; Illinois v. Gates, 462 U.S. 213 (1983), at p. 235.

• Proof of reasonable and probable grounds does not even require proof of the commission of the offence on the civil standard of the balance of probabilities, or on the basis of a 51% probability. See v. Hall, at p. 298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270, 37 C.R. (6th) 320 (Ont. C.A.), at para. 22; R. v. Loewen, 2010 ABCA 255, 260 C.C.C. (3d) 296, at para. 18, affirmed, 2011 SCC 21, [2011] 2 S.C.R. 167; R. v. Spence, 2011 BCCA 280, 87 C.R. (6th) 242, at para. 31; United States v. Garcia, 179 F.3d 265 (C.A., 5th Cir., 1999), at p. 269.

• In considering whether the arresting officer was objectively possessed of the necessary reasonable and probable grounds, the court must take into account all of the circumstances known by the arresting officer and appreciate that a trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. See v. Rajaratnam, 2006 ABCA 333, 214 C.C.C. (3d) 547, at para. 25; R. v. Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289, at paras. 17-20, 27-28; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at para. 61; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 48; R. v. Muller, at para. 37; R. v. Biccum, 2012 ABCA 80, 286 C.C.C. (3d) 536, at para. 21.

• The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. See v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 85.

• The standard of reasonable and probable grounds is used to define the point at which the state’s interest in detecting and preventing crime begins to prevail over the individual’s liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a “reasonable probability.” See Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97, at pp. 167-168; v. Debot, at p. 1166; Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, 78 C.C.C. (3d) 510, at pp. 446-447.

• Beyond these principles, it may not be possible to more precisely define the nature of the standard of reasonable and probable grounds, or affix specific mathematical percentages, as it is a common-sense threshold designed to provide a practical and non-technical standard based on probabilities, and which permits consideration of the totality of circumstances in each individual case. See v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at paras. 52-54, affirmed, 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 29, 62, 69; R. v. MacKenzie, at para. 71; R. v. Canary, at para. 22; Illinois v. Gates, at pp. 238, 244; Ornelas v. United States, 517 U.S. 690 (1996), at pp. 695-696; Maryland v. Pringle, 540 U.S. 366 (2003), at p. 371; Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); Florida v. Harris, 133 S.Ct. 1050 (2013), at p. 1055.

In determining the objective reasonableness of a police officer’s subjective belief that he or she has the necessary grounds for an arrest, it is worthwhile recalling that such decisions are often “made quickly [by officers] in volatile and rapidly changing situations” where detached “[j]udicial reflection is not a luxury the officer can afford.” See R. v. Golub(1997), 117 C.C.C. (3d) 449, at para. 18; R. v. Lawes, 2007 ONCA 50, [2007] O.J. No. 50, at para. 4; R. v. Carelse-Brown, 2016 ONCA 943, 343 C.C.C. (3d) 365, at paras. 47-48.[^11]

[27] Of course, reasonable and probable grounds to arrest requires more than what is required for investigative detention. In R v. Kang-Brown, the Supreme Court speaking through Binnie J. noted that reasonable and probable grounds are required for an arrest, while only “reasonable suspicion” is required for an investigative detention.[^12] The two standards differ in that “reasonable suspicion is a matter of possibilities while reasonable and probable grounds is one of probabilities.”[^13]

[28] I find in the case at bar that the constellation of objectively discernable facts establishes reasonable and probable grounds to arrest the Plaintiff.

[29] First, the police, including P.C. Edgar, had ample grounds to believe that Keron was involved in the robbery and had possession of a firearm in committing it. The victim had identified Keron in the photographic lineup.

[30] Second, in the unusual circumstances of this case, the police were aware Keron had an identical twin. P.C. Edgar specifically knew this. He also was aware that both twins had previously been charged with firearm offences.

[31] Proceeding on that basis, the police were entitled to arrest both identical twins, not knowing who was Keron and who was the Plaintiff but having reasonable and probable grounds to arrest Keron. This is so even though the police had no information that the Plaintiff had been involved in the robbery.

[32] I would suggest that this is essentially the same problem that exists in the case of the issuance of contemporaneous search warrants (based on reasonable and probable grounds) to search two or more separate locations (e.g. home, cottage, car) believing that the suspect has the contraband in one location or the other. The fact that the police do not know for sure the location of the contraband does not mean that they do not have the necessary reasonable and probable grounds to believe that it is in one location or the other. Similarly, the fact that the police did not know which identical twin was Keron does not mean that the police did not have reasonable and probable grounds to arrest both Keron and the Plaintiff. Once arrested, they could then determine who was Keron.

[33] I conclude this even though Keron had a visible scar on his neck. The twins were dressed in winter clothing and were viewed by the police from a distance. It was reasonable that the officers could not make the determination of identity based on the scar.

[34] In my opinion, there was a credibly-based probability that one of the two men was involved in the armed robbery. Indeed, the objective basis for arresting both twins was greater than the third individual, J.Y. For J.Y., the police had less facts to believe that he might be involved in the robbery as he was essentially unknown to the police when he exited the house. For the twins, the police had objective grounds to believe that one of them was involved given the victim’s photo lineup identification.

[35] If one resorts to even rudimentary probability theory, at the moment he arrested the Plaintiff, P.C. Edgar had a 50/50 chance that the Plaintiff was the man who was involved in the robbery. This was much more than mere suspicion.

[36] Even if this conclusion does not accord with a true probability analysis, as Hill J. pointed out in R. v. Sanchez, the reasonable and probable grounds standard “envisions practical, non-technical and common-sense probability.”[^14]

[37] Thereafter, once the police determined that the Plaintiff was not his twin Keron, in the absence of other information providing grounds that the Plaintiff was involved in the robbery, the reasonable and probable grounds for his arrest would have vanished and the Plaintiff would have had to have been released. According to P.C. Edgar and Staff Sgt. Tobin, this was the course of action they actually intended to pursue.

[38] Third, there is another potential constellation of facts providing reasonable and probable grounds to arrest the Plaintiff. This robbery was committed by two suspects: by Keron and another person. The victim could not positively identify the second person because that suspect held him from behind. Thus, this robbery was a joint venture committed by more than one individual. This was not a case where the police were looking for Keron alone. They were looking as well for another person involved in the robbery.

[39] The police then encountered the three individuals at a time and location relatively proximate to the robbery. This is different from encountering Keron with other people, for instance days later, where a temporal and geographic connection to the offence is attenuated. Thus, there is an objective basis to believe that at least two of the group were involved in the robbery.

[40] I appreciate that there were differences in the description of the second suspect, given by the victim, compared to the Plaintiff’s appearance. However, those differences in height, tone of skin, or clothing, do not necessarily exclude the Plaintiff as potentially the second suspect. For example, the victim may have inaccurately recalled the details, or the males could have changed clothing. Thus, it was reasonable to conclude that the Plaintiff or J.Y. could have been the second suspect or could have participated as an accessory after the fact.

[41] Furthermore, P.C. Edgar was aware that both Keron and the Plaintiff had previously been charged with a firearms offence. A firearm had been used in this robbery as well. It was also reasonable for the police to be concerned that the firearm used in the robbery could have been transferred to the other two individuals who were walking out of the home.

[42] Having said that, I wish to emphasize that the mere fact that a gun was used in the robbery does not add to the reasonable and probable grounds for the arrest. But the significance of its potential presence when the police encountered the three young males cannot be denied when assessing the context in which the officers were called upon to make the decision of whether to arrest. The police were not investigating the theft of a chocolate bar. This arrest was made in dynamic circumstances where public and officer safety was a significant concern.

[43] The jurisprudence is replete with judicial recognition of this context when objectively assessing the existence of reasonable and probable grounds for an arrest. In R v. Golub, Doherty J.A. stated:

In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions. [Emphasis Added]

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists, and law enforcement will be significantly compromised. The frustration of the effective enforcement of the criminal law is the hallmark of the exceptional circumstances identified in Feeney.[^15]

[44] In R v. Lerke , Laycraft C.J. said:

Judges cannot be blind to the deaths and injuries suffered by police officers on duty as guns and knives become more common. Situations which appear quite innocent, with no hostile demonstration by the person being arrested, can explode into violence leaving the arresting officer dead or injured. It is difficult to second-guess any police officer who ensures that a person is not armed when he perceives danger as he makes an arrest or escorts a prisoner.[^16]

See also: Metropolitan Toronto Police Assn. Civilian Collective Agreement-Unit “C” v. Metropolitan Toronto Police Services Bd., 1994 CarswellOnt 1873, at para. 29; R v. Aucoin, 2012 SCC 66, at para. 40.

[45] The Plaintiff relies on R v. Burke[^17] and argues that the facts of that case are nearly identical to the case at bar and should govern my decision. In Burke, the majority of the Supreme Court deferred to the trial judge’s findings that the police did not have reasonable and probable grounds for the appellant’s arrest. On the facts of that case, the brother of the appellant had previously committed offences against the administration of justice by running away from a police officer who was seeking to arrest the brother on some outstanding warrants. The same officer stopped the appellant riding his bicycle a week later. The appellant and his brother looked similar. The appellant testified that the officer told him that he looked like somebody the police had chased the other day. When the officer arrested the appellant, the appellant protested and said he was not his brother. He gave plausible explanations and asked the officer to do identity verifications. The police officer did nothing to verify who the appellant was. The trial judge believed the appellant and did not believe the police officer. On these facts, the trial judge found that the police officer did not have objective grounds to arrest the appellant. The cocaine found on him incidental to arrest was excluded and he was acquitted.

[46] I find this case is distinguishable. In Burke, the arresting officer could only say that the accused looked like the suspect. When immediately provided information that he had the wrong person and given reasonable explanations for his mistake, the police officer did nothing to investigate this. Looking at the totality of the circumstances, the trial judge concluded the officer lacked reasonable grounds and acted capriciously.

[47] In the case before me, P.C. Edgar knew that one of the two individuals who looked identical to each other was the suspect that the victim had identified. This was a very reasonable belief. The only thing P.C. Edgar did not know was who was who. Thus, this is not a case of purported misidentification as in Burke. A further distinguishing factor is that the urgency and dynamic circumstances of this case did not exist in Burke.

[48] In conclusion, the claims based upon the lack of reasonable and probable grounds to arrest the Plaintiff are dismissed.

B. EXCESSIVE FORCE

[49] Given the existence of reasonable and probable grounds, P.C. Edgar was entitled to use reasonable force in arresting the Plaintiff. The Defendants rely on s. 25(1) of the Criminal Code which provides a statutory justification for an officer's use of force during the exercise of his or her lawful authority. The relevant parts of the provision read:

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(b)as a peace officer or public officer,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and is using as much force as is necessary for that purpose.

Under s. 25, the Defendants bear the onus of proving on a balance of probabilities three requirements as described in Chartier v. Greaves:

1. The officer's conduct was required or authorized by law in administering or enforcing the law;

2. He or she acted on reasonable grounds in using force; and

3. He or she did not use unnecessary force.[^18]

[50] The Plaintiff testified that while he was on the ground handcuffed behind his back, P.C. Edgar punched him in the face. If true, there is no doubt this would have been excessive force and would not have been reasonably necessary.

[51] I find based upon the evidence of the booking officers, the booking video, and the photographs taken of the Plaintiff that he suffered an abrasion to the right side of the face during the arrest.

[52] Staff Sgt. Lee was the booking sergeant at 42 Division for the three accused. She is now retired. I found Staff Sgt. Lee very credible and professional. Given the passage of time, she was reliant upon her notes and the videotape. Now, the videotape at the booking has no audio. No adverse inference should be drawn from this. I accept the explanation that audio inadvertently did not record that day. This case was not the only one which was affected.

[53] On the day of his arrest, Staff Sgt. Lee spoke to the Plaintiff later after he was booked, to get further details about the abrasion she saw on his face. In my view, to specifically inquire at the Plaintiff’s booking about the injury while he was in the company of the arresting officer would not have been appropriate. I accept that the Plaintiff told Staff Sgt. Lee that he was upset at his arrest as the robbery was his brother’s fault and that as a result he struggled with the officers. The Plaintiff said he knew the officers were just doing their job and although advised of the complaint process by Staff Sgt. Lee, he declined to pursue it. The Plaintiff did not mention to Staff Sgt. Lee that he had been struck by P.C. Edgar after being handcuffed.

[54] I do not accept the evidence of the Plaintiff for the following reasons. The Plaintiff exaggerated the nature of his injury. His recollection that P.C. Edgar’s hands were bloody was wrong. He failed to mention any excessive force to Staff Sgt. Lee and indeed admitted that he was at fault for the use of force.

[55] In coming to this determination, I realize that Keron and J.Y. have confirmed that the officer struck the Plaintiff in the face while handcuffed. However, I do not accept their evidence either. Their credibility was impacted by the bias they exhibited in the Plaintiff’s favour. Further, as explained below Keron’s credibility was affected by cross-examination. While J.Y. was not cross-examined, his affidavit suffers from significant exaggeration, implausibility, and hostility to the police as evidenced by his gratuitous and broad allegations of violence against police officers from 42 Division and by his highly improbable accusation that the police had beaten him and a co-accused in the cells in 2006.

[56] Moreover, I accept the evidence of P.C. Edgar on this point. The Plaintiff did not obey his commands to get to the ground and P.C. Edgar believed he was going to flee. When taken to the ground, the Plaintiff resisted putting his arms behind him and submitting to handcuffing. P.C. Edgar used reasonable force to do so. P.C. Edgar testified he never punched the Plaintiff after he was handcuffed. His testimony on this point was not undermined in cross. When P.C. Steffler arrived at the scene, he also came to the view that the Plaintiff was trying to evade arrest. P.C. Steffler who assisted in arresting the Plaintiff, testified that the Plaintiff was struggling and trying not to be arrested while on the ground. He also confirmed that he did not see P.C. Edgar strike the Plaintiff. He was unchallenged on this issue.

[57] Therefore, I find the Plaintiff was not struck after he was handcuffed. I also find that the Plaintiff was objecting to his arrest, struggling, and resisting being cuffed. Indeed, given the circumstances where the Plaintiff viewed his arrest as being entirely without any merit, I can see why he might have chosen to behave in that fashion. I conclude that the Defendants have proven that any force used on arrest was reasonably necessary.

[58] This claim is dismissed.

C. ISSUES RELATING TO THE RING

[59] T.P. was robbed of two rings and a thick gold chain. Ultimately, all the jewellery was returned to the victim.

[60] One ring was gold with a lion’s head. This ring was found on J.Y when he was arrested. The gold chain was with Keron. The other ring had diamonds on a square top. There is a significant factual dispute as to who had the square top diamond ring when the three males were arrested.

[61] P.C. Edgar searched the Plaintiff incident to arrest shortly after being handcuffed. P.C. Edgar testified that he found the stolen square top diamond ring from the robbery in the pocket of the Plaintiff. The Plaintiff denies having the ring. He denies that P.C. Edgar found any such ring on him. He submits that the evidence of P.C. Edgar and other officers have been fabricated in order to substantiate the robbery charges against him.

[62] The issue is complicated by the fact at his booking, Keron took off the gold chain necklace and a ring while he was being booked and advised the police that these were taken from the victim during the robbery. He also told the police that his brother had nothing to do with it. The booking officers have confirmed this is what Keron said and did. The video, even without audio, confirms this. Keron further testified that that the ring he took off at the booking was the second stolen ring from the robbery; the square top diamond ring. Staff Sgt. Tobin took this ring that Keron removed and placed it into his vest pocket. This too is clear from the video.

[63] A factual conundrum arises. P.C. Edgar and Staff Sgt. Tobin could not have both seized the same ring.

1. Factual Determinations

[64] Let me begin with the evidence called by the Plaintiff. I do not accept the evidence of the Plaintiff or his brother Keron on this issue. I find that they simply were not credible.

[65] The Plaintiff testified that when he was arrested and handcuffed at the scene, P.C. Edgar went into his right pocket and took out a bus transit ticket and a piece of tissue. P.C. Edgar then reached a meter away in the snow from the Plaintiff’s right side and said, “Did I find this in your pocket?” The Plaintiff could see, barely, that it looked a gold ring. The Plaintiff cried out, “You are lying!” That is when the Plaintiff alleged that P.C. Edgar started hitting him in his face.

[66] As already noted, I had some significant difficulties with the Plaintiff’s credibility. And there is more. Another concern I had about the Plaintiff’s testimony was about the process whereby the police executed the search warrant. The Plaintiff testified that the police came to him while he was in custody in an interview room at 42 Division and said they were going to execute a search warrant at his home. The Plaintiff testified that the police brought a drawing to him and asked him to identify his bedroom which the Plaintiff did. The diagram shown to him by the police was identified by the Plaintiff and marked as an exhibit. However, I find this could not have been the diagram. P.C. Edgar made this diagram much later when the search of the home was going on. It would have been impossible for the Plaintiff to have seen this diagram before they executed the warrant since they had not yet been to the home. It also makes no sense that the police would have had such a detailed diagram without having been in the home. It is improbable that they got this type of detailed information from others like the parents. Furthermore, this evidence was not in his affidavit.

[67] While I appreciate that this does not relate directly to the finding of the ring, the negative effect of this cross-examination impacted the Plaintiff’s credibility generally.

[68] More directly on point, when the Plaintiff was cross-examined about inconsistencies about whether P.C. Edgar planted the ring, the Plaintiff was evasive.

[69] Regarding the evidence of the Plaintiff’s brother, Keron had difficulties with his recollections. Even in chief, he testified that to the best of his knowledge, he and J.Y took two chains and three rings. Keron was wrong: they took one chain and two rings. In cross-examination, frailties in his memory were even more pronounced.

[70] Further I find that Keron tailored his evidence to match the Plaintiff’s. Keron too testified that he saw P.C. Edgar reach away from the Plaintiff and pick up a ring from the snow. This however would be inconsistent with Keron’s testimony that he had the stolen ring on him at the booking.

[71] Keron was cross-examined about the ring he took off at the booking. He was asked if he was surprised that his brother claimed the stolen square faced diamond encrusted ring was found by P.C. Edgar. Keron was quite unpersuasive in his response. He could not account for this discrepancy.

[72] Additionally, similar to the Plaintiff’s evidence, Keron testified that the police came to him in the interview room, advised him of the plan to search the home, and had Keron draw a diagram of the upstairs of the house and had him identify his bedroom. According to Keron, he identified the room where the gun was found as his bedroom. Keron then changed his evidence, denied drawing a diagram himself, and said the officers came back with a diagram of the layout. He identified the same exhibit that the Plaintiff did as the diagram the police brought him. I find all this to be most implausible. It is also contradicted by the police officers and the video taken of Keron while in the interview room. Had Keron identified the room where the gun was found as his, this admission would have been of profound investigative significance and the officers would have noted it and made sure it made its way into the Crown brief. It did not, because it never happened. Keron’s credibility was negatively affected by this part of his testimony.

[73] I find that J.Y.’s testimony did little to confirm the twins’ version of events or support the defence position. J.Y testified that Keron had possession of the gold chain necklace and the square top diamond ring at the robbery and while they were at the house. Even aside from the credibility issues I had with J.Y.’s evidence, his evidence does not make it improbable that the Plaintiff could have come into possession of the ring prior to the arrest. It would not have taken much for Keron to have passed the ring to the Plaintiff without J.Y. knowing it.

[74] Let me move to the Defendants’ evidence. On this issue, P.C. Edgar gave straightforward answers even under the pressure of intense questioning in cross-examination.

[75] That said, I am not able to fully accept P.C. Edgar’s testimony that he found the stolen square top diamond encrusted ring in the Plaintiff’s right pocket. There are a number of reasons for this.

[76] First of all, I observe that P.C. Edgar testified that he found keys along with the ring in the front left pocket of the Plaintiff’s pants. On the record of arrest, it is noted that a belt, laces, gold chain, gold bracelet, and draw strings were taken from the Plaintiff. There is no notation of any keys taken. On the video, the Plaintiff is searched. He is also strip searched in an adjoining room. There is no indication that any keys were ever found on him.

[77] Second, P.C. Edgar testified that he gave the ring he found on the Plaintiff to P.C. Penton. However, he did not make a note that he did so in his memo book. P.C. Penton had no recollection of the events except what he put in his notes. He did not note receiving this ring from P.C. Edgar and could only assume he did so. I can place no reliance on this continuity evidence. It is clear to me that in the absence of notes from these two officers, P.C. Edgar’s testimony that he gave the ring to P.C. Penton is of little or no weight given the passage of time. At best, P.C. Edgar is reconstructing in his memory who he believes he gave the ring to, since it was P.C. Penton who returned the jewellery to the victim.

[78] The third and most significant reason why I cannot accept P.C. Edgar’s testimony is the interaction Staff Sgt. Tobin had with Keron at booking. Stated simply, if Keron handed the subject stolen ring to Staff Sgt. Tobin, then it is not possible that P.C. Edgar found the same ring on the Plaintiff upon arrest.

[79] The following is a summary of the evidence of Staff Sgt. Tobin. Staff Sgt. Tobin testified the ring he took from Keron was nondescript. When asked what he did with the ring, Staff Sgt. Tobin said this ring was not one of the two stolen rings. He made no notes about what he did with the ring. The officer agreed it was a long time ago, but he recalled reviewing the victim’s statement of the description of Keron where T.P. noticed Keron was wearing a ring on his right hand during the robbery. Staff Sgt. Tobin testified in all honesty he did not recall what he did with the ring that he seized but, in all likelihood, it was put back into Keron’s property bag. Staff Sgt. Tobin agreed he had a duty to preserve the inmate’s property. He reviewed the police documentation and agreed there was no documentation of what had happened to the ring.

[80] Staff Sgt. Tobin agreed he should have done a better job with his notes regarding the ring. Looking back, he agreed he would have liked to have done things differently. When asked if the process of documenting the ring’s whereabouts was sloppy, he said not entirely. Staff Sgt. Tobin admitted that he did not do a great job of accounting for the property and agreed that the police could have done things better.

[81] When asked whether Keron had obstructed justice by saying his own personal ring belonged to the victim, Staff Sgt. Tobin testified not necessarily. When pressed further on this, he admitted he did not lay any further charges due to the utterance. From my observation, this seasoned and experienced officer did not appear at all comfortable with answering this series of questions.

[82] This is but a flavour of the cross-examination of Staff Sgt. Tobin on this issue. I did not find Staff Sgt. Tobin’s evidence about the ring credible or reliable. When he testified that he put the ring back into the property bag, this evidence was internally inconsistent. It evolved under cross-examination. Initially, he testified he did not recall what he did with the ring. Then he said he believed he put it back into Keron’s property bag because he had reviewed the statement of the victim and therefore, he must have put it back. However, under further cross, this evolved to a better and distinct recollection that he actually did.

[83] This is a minor point compared to other more serious issues I have. Staff Sgt. Tobin admitted that he did not document what he did with the ring. This failure must be properly appreciated. This ring was not simply an irrelevant item of a prisoner’s property. An omission to note in situation that is something I can more readily understand. If the ring was not particularly meaningful, it could have been placed into a property bag without proper documentation being made.

[84] However, the ring was valuable. Failing to document what happened to an item such as this is not a minor oversight. There are civil liability considerations if jewellery is lost or alleged to have been taken by the police. As admitted, the police have a duty to safeguard the possessions of those who are taken into custody. This ring was never documented on the Record of Arrest as being a part of Keron’s property. No additions or corrections were made to that Record of Arrest. To simply put it into the property bag without making any notation of it is a mistake. I appreciate that the property bag itself could have the items noted on it. However, no such itemized property bag has been produced in evidence.

[85] Furthermore, Keron stated that he stole this ring from the victim of a robbery. This had potentially significant evidentiary and investigative value. It’s relevance to the case was prominently brought to Staff Sgt. Tobin’s attention. Even if the officer later came to the belief that it was not stolen from the victim, to simply put it back in the prisoner’s bag is not plausible. Keron disavowed ownership of the ring. He said that the ring was stolen. The most logical thing that the police would have done in those circumstances would have been to have kept the ring to determine to whom it rightfully belonged. Keron had been arrested for stealing jewellery. This ring could well have been stolen property even if it was not the victim’s. Yet, if I am to believe Staff Sgt. Tobin, he simply placed the ring back into a property bag without any further investigation or inquiry, and without any documentation that he did this. This I do not believe.

[86] The video recorded interview of Keron by Staff Sgt. Tobin and P.C. Steffler confirms that at the time, the police were very aware about the importance of the ring Keron handed over at the booking. The interview started at 21:52 and ended at 22:21. During this interview with the police, the necklace and the ring were on the table in the interview room. After being properly cautioned, Keron told the police he wanted to give a statement. Keron then spoke with his mother before the police started the questioning. When the officers returned after the call, Keron was uncertain about giving a statement and said he needed more time to think. Staff Sgt. Tobin acknowledged that. In doing so, he said that they just wanted to know what exactly happened and asked if Keron could clarify some things for the police. Staff Sgt. Tobin then said:

Cause when you came in on camera, and you made some utterances to the Staff Sgt. and you actually removed some jewellery that you said didn’t belong to you but belonged to “the guy.” Um. And I have one of those pieces here with me on the table (Staff Sgt. Tobin pointing to an item on the table with his pen). It’s the ring that you took off and you took off a necklace…

Staff Sgt. Tobin then stated if Keron did not wish to clarify it, then that was his prerogative, although it would be helpful if he did. Staff Sgt. Tobin stated they would come back after doing some paperwork and after Keron had some time to think. The video recording is then stopped. Keron never did give a statement.

[87] Certainly, this statement made by Staff Sgt. Tobin in the interview room could support the Plaintiff’s position, but it is also not inconsistent with the Defendants’ position. What is most important to me is that Staff Sgt. Tobin believed the ring was of such significant investigative value that it was brought into the interview room to question Keron about it. It was specifically highlighted by Staff Sgt. Tobin in the above comment. Despite this, if Staff Sgt. Tobin’s evidence is to be believed, the ring drops off the investigative landscape without any documentary trace. He simply places it into Keron’s property bag.

[88] In addition, Staff Sgt. Tobin admitted that he did not charge Keron with obstructing justice or obstructing a peace officer for misleading them as to who owned the ring. A clear motive for misleading the police about this would have been Keron’s desire to help the Plaintiff. I find it unbelievable that if Staff Sgt. Tobin found out that Keron had mislead the police about the ring to help his brother, he would not have at the very least investigated further if not had additional charges laid against Keron for this act of deception.

[89] Another difficulty I have with Staff Sgt. Tobin’s evidence is that after the charges were laid, he did not provide any disclosure or tell the Crown he had given back the ring that he believed belonged to Keron. In the occurrence report prepared by Staff Sgt. Tobin, he has noted that during the booking of Keron, the youth removed a necklace that he was wearing and advised the booking Staff Sgt. that the necklace was in fact not his but that it belonged to “the guy.” Conspicuously absent is any reference in the occurrence report to a ring also being removed by Keron, and/or Keron admitting that it too belonged to the victim. One would have expected it to be there. Even if one accepted Staff Sgt. Tobin’s evidence that the ring removed was returned to Keron, I would have expected a competent officer to have revealed this to the Crown. Instead, a misleading impression was left on the synopsis.

[90] Moreover, Staff Sgt. Tobin’s explanation that he put the ring back into the prisoner’s property bag was never revealed earlier. He never revealed this in the discovery process. He did not mention it in his affidavit. He explains he was not asked about it. However, he knew it was relevant. His explanation why he had not disclosed it earlier was unconvincing.

[91] I also note that in the cross-examination of Keron, it was not suggested to him that it was his ring that he took off nor that it was returned to him by the police.

[92] The last reason why I reject Staff Sgt. Tobin’s evidence is his demeanour. Evidence of demeanour is of little use in assessing credibility. Yet a trier of fact can still consider it. In Staff Sgt. Tobin’s case, as his evidence was being tested, I found it noticeable that Staff Sgt. Tobin appeared uneasy in giving his answers. This is especially remarkable for an officer of his experience. It was as if he had trouble making his testimony on this point make sense. To me, he had trouble because it simply did not make sense.

[93] There is yet another troubling body of evidence. The Forensic Identification Services took photographs of the three suspects and the jewellery taken. One set of photos are of Keron. Amongst the series of photos of Keron, there is a photo of a white belt with two items of jewellery alongside it with a blank property tag. On a second series of photos is the Plaintiff. There are also photos of a gold chain and two rings with a property tag. There are also close-ups of the rings. These photos are of a lion head ring and a diamond crusted square ring. I infer these are the items stolen from the victim.

[94] P.C. Lefebvre was the SOCO officer who took the photographs. P.C. Lefebvre’s notes was made a lettered exhibit, along with that of the other officers. I am mindful that these notes were used, as in the normal course, only to refresh the memories of the officers who testified. However, P.C. Lefebvre did not provide an affidavit, nor did he testify. I cannot use his notes as substantive evidence. However, those notes do form a part of the police investigative file. P.C. Lefebvre’s notes reveal that he took photos of property on the desk in Room #2 where Keron was. He notes the property as a white belt and two gold rings with a property tag. Room #3 was where the Plaintiff was. It is noted that on the desk in that room there was a gold chain and two gold rings, and he took closeup photos of the three items separately.

[95] I am concerned about the fact that P.C. Lefebvre has not given any evidence in this case.

[96] Leaving aside the notes, from the photographs of the white belt and the two pieces of jewellery that accompany the belt, one ring is clearly neither the lion’s head ring nor the square diamond encrusted ring taken from the victim. It is gold but has a circular flat face with some etching on it. The other item of jewellery does appear to be encrusted with diamonds and there is a square surface to it. However, I cannot tell from the photographs whether it is a ring or some other piece of jewellery: i.e., a large earring.

[97] Thus, the photographic evidence showed there were a total of five items of jewellery plus the white belt that had enough significance at the time for a SOCO officer to take photographs of them. Three of those items were the jewellery taken from the victim. Two items of jewellery were not.

[98] This photographic evidence could support the Defendants’ argument that Keron took off other jewellery and claimed they were taken from the victim. On the other hand, the photographs are also not inconsistent with the Plaintiff’s position. There is that square diamond encrusted piece of jewellery that was photographed as associated with Keron. This could be the ring taken from the robbery. From that, one could infer Keron did remove the stolen ring at the booking

[99] After some reflection, I find that the photographs provide no definitive answers but only raise troubling questions.

[100] Where does this state of the evidence lead me? On the one hand, I can understand that Staff Sgt. Tobin may simply be mistaken. His evidence may be unreliable given the passage of time. In his mind, he may be reconstructing the memory that he put the ring back into the property bag even though he did not. But I also have concerns about his credibility. Staff Sgt. Tobin did not say he merely could not recall like some other witnesses.

[101] At the end of the day, Staff Sgt. Tobin’s rejected testimony supports the defence theory that P.C. Edgar falsely claimed he found the diamond encrusted ring on the Plaintiff. If that stolen ring was taken from Keron at booking, P.C. Edgar could not have found the ring on the Plaintiff.

[102] I appreciate that the Defendants strongly argue that Keron falsely took off the ring to exculpate his brother. However, that too hardly makes sense if the true stolen ring was with the Plaintiff. The ruse would have easily been discovered.

[103] Yet I remain unable to conclude that P.C. Edgar did not seize the ring from the Plaintiff because I am unable to accept the evidence of the Plaintiff or Keron on this point. Both have serious credibility issues. Their combined testimony is inconsistent and does not make sense. If Keron’s evidence is accepted, then the victim’s ring was with him at the booking. However, this is inconsistent with the Plaintiff’s evidence that P.C. Edgar had the ring at the scene of the arrest and falsely alleged he found it on the Plaintiff.

[104] The only other possible scenario is that P.C. Edgar had no ring at the scene but merely claimed he found something. This scenario is fantastical. Why would P.C. Edgar say to the Plaintiff he had found something if he found nothing at all? Indeed, this scenario was not argued for by the Plaintiff. In my view, it is not worthy of any credit.

[105] In coming to my factual conclusions, I am mindful of the standard of proof. The Supreme Court of Canada in C.(R.) v. McDougall confirmed that “there is only one civil standard of proof at common law and that is proof on a balance of probabilities.”[^19] The closest the Court comes to defining “balance of probabilities” in McDougall is this comment from Rothstein J.: “[T]he only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred.”[^20] The Court also clarified that evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.[^21] The Supreme Court recently confirmed its holding in McDougall in Canada (Attorney-General) v. Fairmont Hotels Inc.[^22]

[106] I am also mindful of the onus of proof. On this issue, the onus is on the Plaintiff.

[107] On the whole of the evidence, I therefore conclude the following:

• I cannot say that it is more likely than not that P.C. Edgar did not find a ring belonging to the victim on the Plaintiff. Equally, I cannot say who the ring Keron presented at his booking belonged to. Put another way, after careful consideration, the evidence is equally balanced. The Plaintiff bears the onus in proving the tort actions that arise from his claim that the police fabricated finding the stolen ring on the Plaintiff on his arrest. Since the Plaintiff bears the onus of proof on this, he has failed to establish it in this civil action.

• I find that Staff Sgt. Tobin did not adequately investigate or account for the ring seized from Keron at the booking. Additionally, P.C. Edgar did not adequately note to whom he gave the ring after he allegedly seized it from the Plaintiff.

2. Staff Sgt. Tobin Fell Below the Standard of Care

[108] I find that Staff Sgt. Tobin failed to properly investigate, account for, and document what happened to the ring taken from Keron at booking. He failed to properly investigate the nature and origins of that ring and to whom it belonged.

[109] Had the police properly dealt with this significant evidence, the Plaintiff could have more readily and earlier in the proceedings against him asserted his innocence and pressed the prosecution that they did not have a reasonable prospect of conviction. Even assuming that the police felt that the ring taken at booking was Keron’s ring, they did nothing to investigate or document that conclusion or what became of the ring. This too would have impaired the Plaintiff’s ability to properly assess the strength or weaknesses of the charges against him, including the charge of possession of stolen property.

[110] The issue is then whether this conduct fell below the standard of care of a prudent officer in similar circumstances.

[111] Neither party called any expert evidence on what that standard of care is in investigations of this nature. In submissions, both sides submitted that I could decide the issue without expert evidence. I agree.

[112] Krawchuk stands for the proposition that it is not always necessary to have an expert witness testify to the standard of care for negligence claims against police officers.[^23] Krawchuk establishes two exceptions to the general rule that expert evidence on the standard of care will typically be required in professional negligence claims.[^24]

[113] Under the first exception, expert evidence may be dispensed with if the issues pertaining to the standard of care are “nontechnical matters” or are “within the knowledge and experience of an ordinary person.”[^25]

[114] Under the second exception, expert evidence may be dispensed with “where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care.”[^26]

[115] The first exception is applicable to this case. This exception applies when the issues to which the standard of care pertains are “nontechnical matters or those of which an ordinary person may be expected to have knowledge.”[^27] In 495793 Ontario Ltd. v. Barclay, the Court of Appeal explained that the applicability of this standard is case-specific and contingent upon the knowledge and experience of the particular trier of fact:

Whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met.[^28]

[116] In Meady, Chief Justice Strathy elaborated, holding that “[t]he exercise of police powers of investigation, arrest and detention and police interactions with the public falling short of coercion, are part of the daily diet of judges of the Superior Court.”[^29] The Chief Justice wrote that there is a jurisprudential trend toward affording trial judges more responsibility over dispensing with the need for expert evidence in straightforward cases:

There has been growing recognition of the responsibility of the trial judge to exercise a more robust gatekeeper role in the admission of expert evidence — see: Lisa Dufraimont, "New Challenges for the Gatekeeper: The Evolving Law on Expert Evidence in Criminal Cases" (2012) 58 C.L.Q. 531; and Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008), vol. 3, c. 18: "Role of the Court". This observation holds true for both civil and criminal contexts. Although much of the discussion has focused on increasing scrutiny of threshold reliability at the gatekeeper stage, it is equally important to ensure the evidence is genuinely necessary.[^30]

[117] Russell v. York Police Services Board is another case in which the trial judge validly relied upon his own expertise in determining the applicable standard of care.[^31] In Russell, the plaintiff landlord was an elderly man with hearing and visual impairments. A physical encounter occurred between landlord and tenant while the landlord was in the process of evicting the tenant for non-payment of rent. When a police officer arrived on the scene, he perceived that the landlord was reluctant to cooperate (he refused to open the door to police). The police officer eventually gained entry to the unit, handcuffed the landlord and told him he was under arrest. The landlord did not communicate to the officer that he was visually impaired or hard of hearing. The officer also perceived the landlord to have intentionally struck the tenant, who was present with him in the room that the officer was seeking to enter. The plaintiff brought a claim against the police officer and his board for assault during arrest, false arrest, false imprisonment, wrongful detention, negligent investigation, malicious prosecution, and breaches of Charter rights. The trial judge dismissed each claim. The trial judge did not state explicitly that she was relying on one of the Krawchuk exceptions to the expert evidence rule; rather, the judge simply undertook the analysis of whether the investigating officers had breached the standard of care. In 495793 Ontario Ltd. v. Barclay, the Court of appeal identified Russell as a case in which the issues were “straightforward” and hence the trier’s decision to dispense with expert evidence under the first exception was justified.[^32]

[118] Even without expert evidence, I am able to determine that Staff Sgt. Tobin fell below the standard of care of a prudent, diligent, and competent officer in the same circumstances. Staff Sgt. Tobin should have investigated the ring to determine if it was stolen from the robbery or if was in Keron’s possession illegally. Whatever his determination after investigation, he should have documented his conclusions in his notes or in some other fashion. If he concluded that the ring was evidence and/or stolen property, he should have maintained possession of the ring, safely secured it, and ensured its evidentiary integrity. Finally, he should have documented what he ultimately did with the ring.

[119] The negative consequences of his negligence were entirely foreseeable. One of those consequences is that I can’t conclusively determine whether P.C. Edgar found the stolen ring on Plaintiff. The negligence in properly accounting for the ring by Staff Sgt. Tobin affected the assessment of the Plaintiff’s guilt or innocence and his ability to make full answer and defence.

[120] I recognize that police work is inherently difficult and should not be minutely scrutinized with the benefit of hindsight. As noted in Hill, the reasonable police officer test in the tort of negligent investigation recognizes the largely discretionary nature of police work:

Police exercise their discretion and professional judgment in accordance with professional standards and practices, consistent with the high standards of professionalism that society rightfully demands of police in performing their important and dangerous work. […]

The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results.[^33]

[121] In my opinion, I am not demanding perfection from the police. From the evidence, the significance of the ring proffered as the stolen one by Keron, was patently clear to Staff Sgt. Tobin. Why else was the jewellery referred to in Keron’s recorded interview? Why else were photographs taken of it? This is not a case where the police failed to properly deal with seized evidence because the significance of it was unknown to them at the time. On any reasonable view, this evidence would be important to either exonerate or inculpate the Plaintiff. If this ring was that of the victim’s, it could have undermined P.C. Edgar’s evidence. This was a key component of the charge relating to possession of stolen property and the robbery. Prudent police officers in these circumstances would have properly investigated the ring that Keron claimed came from the victim and would have accounted for its disposition after seizure.

[122] This is not simply a failure to make adequate notes or document evidence. It is not simply a lapse in documenting the chain of possession. It is not simply, as the Defendants argue, imperfect paperwork. It goes beyond that. It is a fundamental failure to reasonably deal with seized evidence. Thus, on my findings, this ring claimed to have belonged to the victim by a man accused of being an armed robber is simply unaccounted for.

[123] In addition, a reasonably prudent police officer would have ensured that the ring taken from the Plaintiff would also be properly documented in terms of continuity. P.C. Edgar did not do that. The significance of a failure to do so was more important in this case given the nature of what Keron advised the police at the booking.

[124] The police conduct must be assessed according to the test of the normally prudent, diligent and competent police officer in the same circumstances, I find the police conduct has failed that test.

[125] The Plaintiff further argues that the lack of proper investigation and documentation transcends negligence and supports a finding of malice. I do not see it that way. While Staff Sgt. Tobin breached the standard of care, I find that the evidence falls short of proving any malice by the Defendants.

3. Causation

[126] Having found a breach of the standard of care, causation remains to be determined: Snell v. Farrell.[^34] The Plaintiff must establish that he suffered harm but for the breach of the standard of care.

[127] I do not view the Plaintiff’s period of incarceration as being caused by the police conduct. The Plaintiff was detained pending trial on February 22, 2007, by Justice of the Peace S. Dudani. As I read the Justice of the Peace’s decision, the most significant reason for the detention order was the sawed-off shotgun allegedly found in the Plaintiff’s bedroom and his prior conviction for unauthorized possession of a firearm dated December 12, 2006. The Justice of the Peace recognized that there were triable issues relating to the charges arising from the robbery. Put another way, the core reason why the Plaintiff was detained on the secondary and tertiary ground was not the robbery related charges, but the sawed-off shot gun offences for which the Plaintiff was properly charged.

[128] The pre-trial custody would have been the most obvious form of harm. He has not proven this. That said, I do find that the Plaintiff did suffer harm from Staff Sgt. Tobin’s actions. It must not be forgotten that the Plaintiff remained under the charges arising from the robbery for some time. Thus, he was under the stigma and stress of those charges. He was under this cloud of being charged with offences he did not commit for several months. From the date he was detained, the Plaintiff, along with his co-accused, made a number of court appearances, received Crown disclosure, and had a judicial pre-trial on June 11, 2007. Another pre-trial was scheduled for September 4, 2007. A ten-day trial was set to commence November 19, 2007. On June 21, 2007, defence counsel advised that with respect to the twins, he was having discussions with the Crown and considering a joint consent release. On that date, counts 1 to 4 pertaining to the robbery were withdrawn against the Plaintiff. On July 23, 2007, a date set for a bail de novo hearing, the Crown agreed that while the charges regarding the sawed-off shotgun still remained, the Plaintiff should be released on bail. The Crown indicated at that time that the robbery charges had been withdrawn as it had been determined that Keron committed the robbery. Keron himself had been released on a surety bail a few days earlier on a bail de novo hearing. On September 4, 2007, another pre-trial was conducted and further disclosure was made. An October 3, 2007, hearing date was set for resolution. On October 3, 2007, Keron pled guilty to one count of unauthorized possession of a prohibited weapon and one count of robbery. The trial dates were vacated and Keron was remanded for sentencing to November 27. All counts against the Plaintiff were withdrawn by the Crown on October 3 with the Crown stating the Plaintiff “became wrapped up in this…essentially as a result of being a twin.”

[129] While the robbery-related charges were ultimately withdrawn by the Crown, I find that but for Staff Sgt. Tobin’s actions, that decision would likely have been made sooner.

[130] In coming to this conclusion, I draw a distinction between the withdrawal of the charges relating to the robbery and the possession of the stolen ring and the charges relating to the sawed-off shotgun and the ammunition found in the bedroom. With respect to the latter, there were clear reasonable grounds to charge the Plaintiff for the offences related to the shotgun and ammunition. I explain this later in my reasons. As I read the transcript of the proceedings, the Crown only agreed to withdraw the shotgun charges against the Plaintiff once his brother took responsibility for them.

[131] Thus, I accept that the Plaintiff suffered stress, anxiety, and humiliation that resulted for being under the robbery related charges for a number of months.

[132] I find Staff Sgt. Tobin negligent. As the Toronto Police Services Board is vicariously responsible for the acts of its officers, it too will be found liable for this negligence.

4. Reasonable and Probable Grounds to Charge the Plaintiff with Counts 1-5

[133] Given that the Plaintiff has failed to discharge his onus of proof on the factual issue regarding the ring, I find that there were reasonable and probable grounds for count #5, possession of property obtained by crime.

[134] Equally, there were reasonable and probable grounds to charge the Plaintiff with the following offences arising out of the robbery: robbery, use of an imitation firearm to commit an indictable offence, carry a concealed weapon, and possession of a weapon dangerous.

[135] Given the fact that the ring was allegedly found on the Plaintiff, an evidentiary nexus exists between the robbery related offences and the Plaintiff. This nexus is stronger given the doctrine of recent possession permits an inference of guilt in the robbery and the offences incidental to it: R. v. Sellars.[^35]

[136] Although only two males were involved in the robbery, one of whom was Keron, there remained reasonable and probable grounds to charge the Plaintiff as well. First of all, the second perpetrator was not specifically identified by the victim. In the totality of the circumstances, there were reasonable grounds that the Plaintiff was the second perpetrator. Secondly, in the alternative, if he was not the other perpetrator, then he could well have been a party to the joint venture since relatively soon after the offences were committed, he was in the company of the two perpetrators and allegedly in possession of some of the stolen property. Put another way, while he could have been simply sharing in the proceeds of the offences committed by Keron and J.Y., he could also have been involved in their commission.

[137] It is true that Keron told the police that his brother had nothing to do with the robbery and claimed that the ring he had belonged to the victim. Police officers are obliged to consider and weigh any potentially exculpatory evidence in determining whether and/or how to proceed with their investigation concerning an accused who has been lawfully arrested. However, police officers are not obliged to accept, at face value, any exculpatory explanation or evidence that may be provided by an accused. The police may disregard information which they have good reason to believe is unreliable. See Chartier v. Quebec (Attorney General).[^36] In the instant case, the police were entitled to disbelieve Keron.

[138] Further, the fact that an accused may, ultimately, be found not guilty of the alleged offence for which he or she was arrested does not establish that the arrest of the accused was not based on reasonable and probable grounds: See R. v. Biron.[^37] Here the fact that the Crown eventually withdrew the charges does not establish that the charges laid against the Plaintiff were not based on reasonable and probable grounds. The comments made in Halsbury’s clarifying the relevant time period when analyzing whether the defendant officers had the requisite reasonable and probable grounds for an arrest are apropos on this point:

Reasonable and probable grounds for the arrest must be shown at the time of arrest. Though subsequent court proceedings leading to a dismissal or conviction may strengthen or weaken an argument about the existence of reasonable and probable grounds for arrest, only what the police officer knows at the time of the arrest must be considered in an action for false arrest. This is so as the outcome of court proceedings may be based on information discovered after the initial arrest.[^38]

[139] I recognize the case against the Plaintiff was weak. Indeed, the Crown came to the view that the charges should be withdrawn, even the charge of possession of stolen property. I also recognize that Keron pled guilty to the robbery and J.Y pled guilty to simple possession of stolen property. That said, at the time when the charges were initially laid, there were reasonable and probable grounds for these charges.

D. CHARGES ARISING FROM THE SEARCH

[140] The Plaintiff submits that the police had no reasonable and probable grounds to charge him for the offences arising from the discovery of the sawed-off shotgun and ammunition in the home.

[141] The facts can be briefly stated. After the arrest of the three parties, a search warrant was executed at the residence where both the Plaintiff and Keron lived with their parents. Officers secured the home and searched the home at 12:29 a.m. on February 3, 2007. During the search, the police located a loaded, sawed-off shotgun in a bedroom closet. The gun was found with live rounds of ammunition. There were clothes in the closet and a shotgun shell casing was located on the floor of the closet.

[142] Identification in the name of the Plaintiff was found in the room where the shotgun was found. At the time of the charges being laid, the totality of the facts known to the police did not establish who the bedroom belonged to and who amongst the twin brothers had knowledge and control of the sawed-off shotgun and ammunition.

[143] In my view there is no merit to the Plaintiff’s argument that there were insufficient reasonable and probable grounds to charge the Plaintiff with the various offences arising from the search. In my opinion, reasonable grounds were present given the fact that the Plaintiff lived in the home and his identification was found in the bedroom where the shotgun was found. While this may not have proven beyond a reasonable doubt that he had legal possession of the firearm, these facts provided sufficient grounds to charge him with these offences.

[144] The defence submitted in argument that there was something suspect in the testimony of the officers discovering the gun and the identification. I do not accept that argument.

[145] Regarding P.C. Barnett’s reference in his notes that during the search of the home he was detailed to the Plaintiff’s bedroom, I accept the officer’s testimony that he had no prior knowledge of which room was the Plaintiff’s bedroom. I accept the officer’s explanation that he noted it was the Plaintiff’s bedroom since he came to that knowledge when he found the Plaintiff’s identification in the room. Indeed, the phrase pointed out by the Plaintiff is immediately followed in P.C. Barnett’s notes by a bracketed comment “located ID with his name on it.” Given that P.C. Barnett made his notes after the search, it makes sense he would refer to the room he searched as the Plaintiff’s bedroom. This notation does not support the defence position that the police had tried to falsely inculpate the Plaintiff during the search.

[146] Thus, these claims have no merit and are dismissed.

E. OTHER CLAIMS

[147] The Plaintiff has raised the claim of the intentional infliction of mental distress. It should be clear by now that I find that the Plaintiff has not proven this.

[148] Aside from the above finding of negligent investigation, all the Plaintiff’s other claims are dismissed.

F. THE CLAIMS OF THE PLAINTIFF’S PARENTS

[149] The Plaintiff’s parents, Lois and Mario Francis, claim harm and damages pursuant to the Family Law Act. These are derivative claims. First, as I have found, the Plaintiff was properly detained once the shotgun was seized. Second, while I have found negligent investigation, I find that the evidence led by the Plaintiff does not establish any damages suffered by his mother and father. The negligent investigation did not affect their relationship with their son to any measurable degree.

[150] Their claims are therefore dismissed.

G. DAMAGES

[151] In conclusion, the Plaintiff has not proven any of the allegations of a Charter violation, malicious prosecution, assault and battery, unlawful/false arrest, or intentional infliction of mental distress. The Plaintiff has proven negligent investigation.

[152] Although I have found liability to a limited extent, more than nominal damages should be awarded. Although the Plaintiff remained rightfully charged with the shotgun-related offences and detained in custody, I can accept that having these other charges hanging over his head created significant psychological stress for him. It bears repeating that the Plaintiff was factually innocent of any involvement in the robbery.

[153] I also agree with the Plaintiff that in assessing damages, recognition must be taken of the fact that the Plaintiff was a young person at the time. Thus, the harm he suffered happened at a vulnerable and formative period in his life.

[154] In my view, general damages in the amount of $18,000 should be awarded: Kosoian v. Société de transport de Montréal.[^39]

[155] The Plaintiff asks for punitive damages. I find no basis for it. The conduct of the police was negligent. But it was not in bad faith, malicious, or egregious. While there is no doubt that the result had serious consequences for the Plaintiff, I do not accept the submissions made by him that “tunnel vision” or “noble cause corruption” have been proven or were factors in the police conduct.

H. COSTS

[156] If the issue of costs cannot be resolved between the parties, I will entertain written submissions, each one limited to two pages not including any attachments like the Bill of Costs. The Plaintiffs shall file within 10 days of this decision. The Defendants shall file within 7 days thereafter. There will be no reply submissions without leave of the court.

Justice S. Nakatsuru

Released: December 23, 2019

COURT FILE NO.: CV-08-00359918

DATE: 20191223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KAREEM FRANCIS, LOIS FRANCIS, and MARIO FRANCIS

Plaintiffs

– and –

P.C. ADAM EDGAR (7820), P.C. HASIUK (9424), P.C. ROBERT TOBIN (3919) and TORONTO POLICE SERVICES BOARD

Defendants

REASONS FOR JUDGMENT

NAKATSURU J.

Released: December 23, 2019

[^1]: Given the similarities in names, to avoid confusion henceforth I will refer to Kareem Francis as the “Plaintiff.” [^2]: (1995) 1995 1526 (ON CA), 85 O.A.C. 365 (C.A.). [^3]: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, 3 S.C.R. 129 [Hill]. [^4]: Hanisch v. Canada, 2003 BCSC 1000, 123 A.C.W.S. (3d) 760, overturned but not on this point, 2004 BCCA 539, 134 A.C.W.S. (3d) 509. See also Jennifer Freund, Halsbury’s Laws of Canada – Police, Security and Emergencies (2018 Reissue) (Toronto: LexisNexis, 2018), I.2.3.a (HPO-70) citing Hanisch. [^5]: Carpenter et al v. McDonald et al, (1979) 1979 2043 (ON CA), 27 O.R. (2d) 730 (Ont. C.A.). [^6]: 2007 BCSC 3, 154 A.C.W.S. (3d) 722, at paras. 48-49, aff'd 2009 BCCA 23, 304 D.L.R. (4th) 653, rev'd on other grounds, 2010 SCC 27, 321 D.L.R. (4th) 1. [^7]: 1990 125 (SCC), [1990] 1 S.C.R. 241, at 250. [^8]: Ibid, at 250-251. [^9]: (1995) 1995 647 (ON CA), 22 O.R. (3d) 289, at 298 (Ont. C.A.), emphasis added. Importantly, subsequent to the Supreme Court’s ruling in R v. Storrey, Parliament amended what is now s. 495(1) of the Criminal Code to remove the “magic” words for a lawful arrest from “reasonable and probable grounds” to “reasonable grounds” only. On this point, Stinson J. in Lloyd v. Toronto Police Services Board ([2003] O.J. No. 83, at para. 46) opined:

The amendment by Parliament deleted the words "and probable" so that the section now permits an arrest where the peace officer believes "on reasonable grounds" that the person has committed an indictable offence. In Baron v. Canada, [1993 154 (SCC)](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii154/1993canlii154.html), <s>[1993] 1 S.C.R. 416</s>, the Supreme Court of Canada held that there is no analytical difference between the two concepts: see paras 42 - 44. In R. v. Hall, supra, the Court of Appeal was concerned with the amended provision, that is, subsequent to the deletion of the words "and probable." The Court nevertheless proceeded to apply the principles articulated in R. v. Storrey. It would thus appear that the alteration in the language of the section has not altered the test for a lawful arrest.

[^10]: Emond v. Ottawa-Carleton Regional Police Service, [2003] O.J. No. 3512 (ON SC), at para. 58. [^11]: 2018 ONSC 5173, 51 C.R. (7th) 4, at paras. 46-49. [^12]: 2008 SCC 18, 1 S.C.R. 456 [Kang-Brown]. [^13]: Jeremiah v. Hamilton-Wentworth Police Services Board, 2018 ONSC 5762, 300 A.C.W.S. (3d) 746, at para. 136; Kang-Brown, at para. 164. [^14]: (1994), 1994 5271 (ON SC), 20 O.R. (3d) 468 (Ont. S.C.J.), at para. 31. [^15]: 1997 6316 (ON CA), [1997] O.J. No. 3097 (Ont. C.A.), at paras. 44-45, leave to appeal refused (1997 CarswellOnt 2448) (S.C.C.), emphasis added. [^16]: 1986 ABCA 15, 25 D.L.R. (4th) 403, at para. 32. [^17]: 2009 SCC 57, 3 S.C.R. 566. [^18]: [2001] O.J. No. 634, at para. 54 (Ont. S.C.J.). [^19]: C.(R.) v. McDougall, 2008 SCC 53, 3 S.C.R. 41, at paras. 40, 49. [^20]: Ibid, at para. 44. [^21]: Ibid, at para. 46. [^22]: 2016 SCC 56, 2 S.C.R. 720, at paras. 35-37. [^23]: Krawchuk v. Scherbak, 2011 ONCA 352, 332 D.L.R. (4th) 310, at para. 133, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319 (S.C.C.) [Krawchuk], referring to Zink v. Adrian, 2005 BCCA 93, 137 A.C.W.S. (3d) 439, at para. 44. [^24]: Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, 248 A.C.W.S. (3d) 361, at paras. 34-35 [Meady]; Krawchuk, at para. 130; Bergen v. Guliker Estate, 2015 BCCA 283, 257 A.C.W.S. (3d) 718, at paras. 114-131; Camaso Estate v. Egan, 2013 BCCA 6, 225 A.C.W.S. (3d) 551, at paras. 71-72, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No. 92 (S.C.C.). [^25]: Krawchuk, at para. 133. [^26]: Krawchuk, at para. 135; 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 57 [Barclay]. [^27]: Meady, at para. 35; Krawchuk, at para. 133. [^28]: Barclay, at para. 56. [^29]: Meady, at para. 47. [^30]: Ibid, at para. 37. [^31]: Russell v. York Police Services Board, 2011 ONSC 4619, 205 A.C.W.S. (3d) 1115. [^32]: Barclay, at para. 63. [^33]: Hill, supra, at paras. 51‑52, 73. [^34]: 1990 70 (SCC), [1990] 2 S.C.R. 311. [^35]: 1980 166 (SCC), [1980] 1 S.C.R. 527. [^36]: 1979 17 (SCC), [1979] 2 S.C.R. 474, at p. 499. [^37]: 1975 13 (SCC), [1976] 2 S.C.R. 56, at pp. 71-75. [^38]: Jennifer Freund, Halsbury’s Laws of Canada – Police, Security and Emergencies (2018 Reissue) (Toronto: LexisNexis, 2018), I.2.3.a (HPO-70 – False arrest). [^39]: 2019 SCC 59, 311 A.C.W.S. (3d) 667.