Court File and Parties

COURT FILE NO.: CV-09-382151 DATE: 20200302 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SUPREME AUTO GROUP INC., CHARLES WILTSHIRE, LAMONT WILTSHIRE, JUSTIN WILTSHIRE and AARON WILTSHIRE Plaintiffs

– and –

CHIEF WILLIAM BLAIR, DETECTIVE CONSTABLE DOUG BACKUS, DETECTIVE SERGEANT PATRICK PLUNKETT, TORONTO POLICE SERVICES BOARD, SUPERINTENDENT JIM DOUGLAS, INSPECTOR TOM CAMERON, DURHAM REGIONAL POLICE SERVICES BOARD, POLICE CONSTABLE JANE DOE, POLICE CONSTABLE JOHN DOE and ROGERS COMMUNICATIONS INC. Defendants

Counsel: Asha James and Dominic Bell for the Plaintiffs Kevin A. McGivney/Natalie D. Kolos for the Defendants, William Blair, Doug Backus, Patrick Plunkett and the Toronto Police Services Board Jennifer L. Hunter for the Defendants Superintendent Jim Douglas, Inspector Tom Cameron and Durham Regional Police Services Board

HEARD: December 12 and 13, 2019

Koehnen J.

[1] On April 1, 2009, 160 search warrants were executed in Ontario as part of “Project Fusion”, a large investigation into the illegal sale of guns and drugs. Project Fusion involved over 1000 police officers in multiple police forces including the Toronto Police Service and the Durham Regional Police Service.

[2] One of the search warrants issued in connection with the investigation authorized police to search the premises of the plaintiff, Supreme Auto Group Inc. The search occurred early in the morning before business hours. No one was on the premises at the time. The police seized nothing as a result of the search. The plaintiffs suffered no damages as a result of the search apart from the inconvenience of relatively minor clean up.

[3] After the searches concluded, the Toronto and Durham police held a press conference. During the course of that press conference, Toronto’s then Chief of Police, William Blair, and Superintendent Jim Douglas of the Durham Police made certain statements that the plaintiffs allege are defamatory to Supreme Auto. The individual plaintiffs are shareholders or directors of Supreme Auto. None of the plaintiffs were charged as a result of the investigation.

[4] Three individuals with connections to Supreme Auto, Cleavon Springer, Matthew Okoko, and Arthur Austin, were charged with drug and fire arms offences to which they subsequently pleaded guilty.

[5] As a result of the search and the press conference, the plaintiffs commenced this action for negligent investigation and defamation. The defendants move to dismiss the action by way of summary judgment.

[6] Despite the excellent advocacy of counsel for the plaintiffs, I grant the motion for summary judgment and dismiss the action. The plaintiffs agree that, if the warrant pursuant to which Supreme Auto was searched is upheld, the negligent investigation claim fails. I uphold the search warrant. There was ample evidence on which the issuing justice was entitled to issue the warrant.

[7] I also dismiss the claim for defamation. In my view, the comments made at the press conference, when viewed in their full context, are not defamatory. In addition, the comments were accurate and are therefore protected by the defence of justification. Moreover, even if defamatory, the statements are protected by the defence of qualified privilege.

I. The Test for Summary Judgment

[8] The test for a summary judgment motion is not in dispute and is summarized briefly below.

[9] Rule 20.01(2) of the Rules of Civil Procedure provides:

The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[10] To defeat a motion for summary judgment, the responding party must put its “best foot forward”:

In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. The court may, where appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The motion judge is entitled to assume that the record contains all the evidence that would be introduced at trial. It is not sufficient for the responding party to say that more or better evidence will or might be available at trial. The responding party to a summary judgment motion must "lead trump or risk losing".

Afzal v. Royal College of Physicians and Surgeons of Canada, 2019 ONSC 5346 at para. 30.

[11] There is no genuine issue requiring a trial when the summary judgment process: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result. There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure: Hryniak v. Mauldin, 2014 SCC 7 at paras. 49, 66.

II. The Negligent Investigation Claim

[12] The threshold issue on the plaintiffs’ negligent investigation claim it is whether the search warrant against Supreme Auto was lawful. Plaintiffs’ counsel agreed in argument that, if the warrant was lawful, then that is the end of the negligent investigation claim. There is no claim arising out of a lawfully obtained and executed search warrant: Neumann v. Canada (Attorney General), 2011 BCCA 313 at para. 7; leave to appeal to SCC refused .

A. The Legal Test for a Lawful Warrant

[13] A search warrant may be issued under s. 487 of the Criminal Code, R.S.C. 1985, c. C-46 if, among other things, a justice is satisfied by information on oath that there are “reasonable grounds to believe” that a search will “afford evidence with respect to the commission of an offence…”

[14] A warrant will satisfy this test where the information on which it is based is compelling, credible and corroborated: R. v. Debot, [1989] 2 S.C.R. 1140 at para. 60.

[15] The standard of proof to be applied when deciding whether to issue a search warrant is lower than the balance of probabilities. The standard is that of “reasonable probability” rather than a “prima facie case”: Debot, at paras. 57-58.

[16] It is not necessary for the police to confirm each detail in an informant’s tip so long as the sequence of events generally observed conforms sufficiently to the anticipated pattern of conduct to remove the possibility of innocent coincidence: Debot at para 63.

[17] When the validity of a search warrant is reviewed by another judge, the assessment is not a de novo review. Rather, as the Supreme Court of Canada set out in R. v. Garofoli, [1990] 2 SCR 1421 at para. 51:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[18] The test on a review is significant. It is not whether I would have granted the warrant but whether a judge could have done so. The warrant is invalid only if there was “no basis” on which it could have been issued: Garofoli at para. 67. The fact that there were some errors, shortcomings or breaches of the standard of care in issuing the warrant do not lead to setting it aside if there was “at least some evidence that might reasonably be believed” that justified the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992 at para. 51.

[19] In this case, the warrant was issued based on information from a confidential informant. The information made available to the plaintiffs was heavily redacted. The process of review in those circumstances is first for the judge to determine whether the Information to Obtain the warrant (the “ITO”) in redacted form can support the warrant. If the redacted affidavit cannot support the warrant, the reviewing judge should examine the unredacted affidavit and provide a judicial summary [1] of the redactions to counsel challenging the warrant: Garofoli at paras. 97-103.

[20] I need not determine whether this is the appropriate way of addressing the issue in a civil action given that I have concluded that the warrant is supportable on the basis of the redacted materials I have reviewed.

B. Application of the Test to the Supporting Materials in This Case

[21] The unredacted ITO materials included a summary of information that was provided by Confidential Informant #14 to his/her handler including information to the effect that:

(a) Firearm(s) were being sold from Supreme Auto. (b) Marijuana was being sold from Supreme Auto at a price of between $2200 - $2400 per pound. (c) Persons wanting to purchase guns could call two days in advance, describe the kind of gun they want and the dealers would acknowledge if they have the type of gun or not. (d) Persons wanting to purchase guns can attend Supreme Auto Group after 6:00 p.m. when the employees go home. (e) The source met with a male who informed the source that he has bought guns from Supreme Auto Group. The male referred to the gun dealers from Supreme Auto Group as “brothers” and they are a “rich family.”

[22] The ITO also contained information that connected three suspects, Springer, Okoko and Austin to Supreme Auto.

[23] The defendant Detective Plunkett had reviewed a report that described Springer as being employed by Supreme Auto.

[24] The ITO contained other information connecting Springer to illegal activities and to Supreme Auto including the following summary by Detective Plunkett:

SPRINGER was identified as a close associate of Matthew OKOKO the leader of the 400 criminal organization. Interceptions revealed that SPRINGER is involved in the trafficking of controlled substances and firearms.

SPRINGER was identified as being involved in the trafficking of firearms. Confidential source #14 reported that firearms and controlled substances are being trafficked from Supreme Auto at 1698 Bayly Street in Pickering. Intercepts and police records show that SPRINGER is an employee of Supreme Auto. Surveillance officers have observed Matthew OKOKO and Arthur AUSTIN at Supreme Auto. It is believed that SPRINGER is the supplier of firearms for Arthur AUSTIN based on intercepted communications. On January 15th, 2009 Arthur AUSTIN was called by Andrew CAMPBELL who wanted to purchase firearms. Immediately after that call Arthur AUSTIN contacted Cleavon SPRINGER indicating that he wanted to make some purchases.

On March 12th, 2009 intercepted communications revealed that SPRINGER met with an unknown male at the Fairview mall to traffic in firearms. The conversation was very coded and the meeting took place in the parking lot. On March 14th, 2009 SPRINGER is intercepted talking about being shorted money during a transaction. One of the money stacks he was given was supposed to be $1500 and was marked $1500 but it was not. I believe this money was in relation to the firearms transaction.

I believe a search of the locations identified as being associated to Cleavon SPRINGER will result in the location of the identified items to be search for as detailed below. […]

One of the locations listed in connection with Springer was Supreme Auto.

[25] In addition, the ITO disclosed that:

(a) On January 14, 2009 Springer sent the plaintiff Aaron Wiltshire (a director of Supreme Auto) a text message saying that “he better not be sitting on ten pounds.” (b) On January 20, 2009 Springer sent the plaintiff Lamont Wiltshire (also a director of Supreme Auto) a text indicating that he slept in but has Lamont’s “Shit” here. (c) On January 24, 2009 “Aaron Wiltshire called Springer and asked “when was that shit in the paper.” Springer said today. Aaron said ok, ok, ok, my bad, so what you’re saying is it was a much smaller bust that the pepper sauce. […] Springer said huh? Aaron said so it was a much bigger bust than the pepper sauce, I’m joking. Springer laughing. Aaron said that he should (sic) be joking about it on the phone, let’s forget about that. Springer asked if he spoke to him about it. Aaron said no I’m going to deal with it in another way still.”

[26] On its face, this information meets the test of compelling, credible and corroborated information. It provides a level of specificity about product price and timing that makes it compelling. Springer is intercepted in communications which police believed to relate to gun transactions. This was confirmed by Confidential Informant number 14 who provided specific information about gun sales and related them to the Supreme Auto premises.

[27] The plaintiffs point out that Springer had stopped working at Supreme Auto in January or February 2009. They submit that the failure to bring this to the attention of the justice issuing the warrant amounts to a breach of the standard of care.

[28] Detective Plunkett has sworn an affidavit on the summary judgment motion saying that he was not aware Springer had left Supreme Auto’s employ and that he continued to believe Springer worked at Supreme Auto when he helped prepare the ITO in March 2009. This belief is supported by communications quoted above which suggest that Springer continued to work at Supreme Auto in January 2009. Detective Plunket stated in his affidavit that he had received no information before this lawsuit that suggested Springer was no longer working at Supreme Auto. He was not cross examined on his affidavit.

[29] The plaintiffs rely heavily on the submission that Detective Plunkett did not believe that Confidential Informant #14 was reliable when he prepared the ITO. If this were the case, it would put the warrant into question because it would violate the Debot criteria that the information be compelling, credible and corroborated.

[30] However, a closer read of Detective Plunkett’s evidence demonstrates that his reservations about the reliability of Confidential Informant # 14 applied only to the statement that Confidential Informant # 14 had heard from someone else that the owners of Supreme Auto were rich brothers. Detective Plunkett expressed reservations about that piece of evidence because the investigation had not corroborated it. Whether the owners were brothers or were rich was not material to the warrant. What was material was Springer’s involvement in the illegal sale of firearms and that some of those sales were reported to have occurred at Supreme Auto’s premises.

[31] In addition to the connection between Springer and Supreme Auto, the ITO referred to two sources of information that connected Okoko to Supreme Auto. First, on July 23, 2008, Okoko described himself as being employed by Supreme Auto to one of the officers involved in the investigation. Second, surveillance officers observed Okoko speaking with Justin Wiltshire and Arthur Austin at Supreme Auto on November 3, 2008.

[32] The plaintiffs underscore that Okoko was seen only once at Supreme Auto during the surveillance and that Austin was intercepted on a wiretap identifying himself as an employee of the Xbox department of an electronics dealer and was seen only once at the Supreme Auto premises for a period of 7 minutes.

[33] Although these are more limited contacts with Supreme Auto, Okoko had identified himself as being responsible for sourcing cars from the United States for Supreme Auto to sell. That would make less frequent attendances at Supreme Auto understandable. With respect to Austin being an employee of an electronics dealer, that would not necessarily mean that he could not have contacts at Supreme Auto with respect to the illegal sale of firearms. Moreover, the connection that justified the search of Supreme Auto’s premises in the warrant was the connection between Springer and Supreme Auto not the connection between Okoko or Austin and Supreme Auto.

[34] More significantly, the plaintiffs point out that, although surveillance occurred over a prolonged period, there was no surveillance evidence (either visual or wiretap) in the public record that revealed activity at Supreme Auto of the sort alleged.

[35] There are several practical aspects of which courts must remain mindful when reviewing search warrants. First, there is a limit to the degree to which an investigation can be carried out. There is always a risk that pursuing the investigation further to obtain additional certainty risks tipping wrongdoers to the investigation and could lead to the disappearance of the evidence the police seek to obtain. Second, additional time spent double checking information in one investigation means less time spent on other investigations or on other aspects of law enforcement: R. v Green, 2011 ONSC 5830 at para. 38.

[36] In Payne v. Mak, 2018 ONCA 622 the Ontario Court of Appeal recognized at para. 47 in the context of an arrest that:

[The police officer] was not required to evaluate the evidence to a legal standard or to make legal judgments. Nor was he required to exhaust all possible investigations, to interview all potential witnesses prior to arrest, to obtain the accused’s version of events or determine that the accused had no valid defence to the charge, before being able to establish reasonable and probable grounds [citations omitted].

[37] These comments are equally apposite to an investigation leading culminating in a search warrant. Indeed, requiring police to obtain a target’s version of events before obtaining a search warrant would be self-defeating in cases where there was actually something to be found.

[38] These practical realities would also not make it necessary for the police to confirm the status of Springer’s employment immediately before effecting the search of Supreme Auto. Their prior information coupled with the absence of any contradicting evidence provides a sufficient basis on which the issuing justice could grant the warrant.

[39] The Durham police force have an additional defence in relation to the allegations of negligent investigation. They executed a search warrant that the Toronto Police gave them. Pursuant to section 487(4) of the Criminal Code, they were entitled to rely on and execute the search warrant without investigating its validity. Section 487 provides:

(2) If the building, receptacle or place is in another territorial division, the justice may issue the warrant with any modifications that the circumstances require, and it may be executed in the other territorial division after it has been endorsed, in Form 28, by a justice who has jurisdiction in that territorial division. The endorsement may be made on the original of the warrant or on a copy of the warrant transmitted by any means of telecommunication.

(4) An endorsement that is made in accordance with subsection (2) is sufficient authority to the peace officers or public officers to whom the warrant was originally directed, and to all peace officers within the jurisdiction of the justice by whom it is endorsed, to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.

[40] In other words, the Durham police force had no responsibility for the investigation that led to the search warrant of Supreme Auto. They merely executed a search pursuant to a warrant on which they were entitled to rely.

C. The Plaintiffs’ Expert’s Report

[41] The plaintiffs have introduced an expert’s report. The defendants have not. The defendant asked me to strike the plaintiffs’ expert’s report because it was appended to an affidavit from an articling student of the plaintiffs’ law firm. The report was not supported by an affidavit of the expert attesting to the fact that it was his report and that he holds the views expressed in the report.

[42] I do not need to address the propriety of the manner in which the report was introduced nor do I need to address the plaintiffs’ expert in any detail.

[43] The plaintiffs’ expert opined that the redacted ITO did, in-part, fall below the standard of care in that:

(a) The affiant police officer believed that Austin, Okoko, and Springer all worked at Supreme Auto Group, whereas the authorization did not clearly support this belief; (b) Appendices C and D to the ITO were not clear and concise as required by Araujo at paras. 46-47.

[44] The difficulty is that even if I accept that the ITO fell short of the standard of care in these ways, it would not advance matters on the threshold question. The test when assessing the validity of a warrant is not whether the police officers fell short of the standard of care but whether there was some evidence on which the judge issuing the warrant could do so. While I have taken the expert’s report into account, I find that there was ample evidence in the redacted ITO on which a judge could issue the warrant. I am unable to find that there is no basis on which the warrant could have been issued. In those circumstances, the negligent investigation claim must fail.

II. The Defamation Claim

[45] Supreme Auto asserts a defamation claim against the defendants William Blair, Jim Douglas, the Toronto and Durham Police Services Boards. The defamation claims of the individual plaintiffs were struck by Justice Chapnik on July 2, 2010.

[46] The defamation claim arises out of a news conference that was held by the Toronto and Durham police on April 1, 2009 to provide information about the results of the investigation, seizures, charges and arrests. During the course of a longer press conference, Chief Blair made the comments set out below. The bold faced language is that which Supreme Auto submits is defamatory. I have set out the passages before and after the impugned statement to provide a more fulsome context to the comments:

“Project Fusion began in the summer of 2008. It began as a result of an organized crime threat assessment conducted by the Toronto Police Service that identified the criminal organizations that posed the most significant threat to our community and to our City. That threat assessment recognized that the violence perpetuated by criminal street gangs continues to be a major concern to all in our communities and neighbourhoods, not only in Toronto but throughout the GTA.

During the course of our initial investigation, a business premise in Durham Region was identified as a significant distribution point for firearms and for controlled substances. It was determined at that time that the Durham Regional Police Service was investigating the same premise and so we combined our resources and information and formed a Joint Task Force. The Joint Task Force was joined by the Organized Crime Enforcement Bureau of the Ontario Provincial Police, the Canadian Border Services Agency, the Toronto Firearms Enforcement Unit, the Toronto Drug Squad, the Toronto Proceeds of Crime Unit, as well as uniformed officers in both Toronto and Durham Region. Our threat assessment focused on a series of violent crimes in the east end of the City that had occurred, going back as early as 2003. It also focused on the leaders, members and associates of two separate, but linked criminal organizations known as M & E and the 400 Crew. M & E is an acronym for the Markham Road and Eglinton Avenue East area and the 400 crew is a reference to an address on McCowan Road. The geographic area victimized by these two criminal organizations is centered in the south and east part of the City of Toronto, but is not limited to this area. Their criminal influence extends well beyond that neighbourhood and into the rest of the City of Toronto and into Durham Region. Both M & E and the 400 crew are involved in trafficking of firearms and of drugs. The investigation further determined that both of these criminal organizations have resorted to violence to advance and to protect their criminal enterprise.”

[47] Approximately 19 minutes later the following exchange occurred with reporters at the press conference:

Reporter: The Durham Region seems to be the focal point or a focal point? Chief William Blair: It became a common focal point between ourselves and Durham. They were already looking at the premise and in our investigations into the gangs it came up. Reporter: Is that the fish store? The tackle shop? Superintendent Douglas: No, that was to do with our drug investigation a while ago. It’s not related to this. Reporter: Can you identify the business at all? Reporter: Or at least describe it? Reporter: Or describe it or something? Reporter: Can you also use the microphone please at the podium? Superintendent Douglas: Yeah. The business was Supreme Auto Group. We had an incident there last year where we became involved in an investigation and, as a result of that investigation, we also became aware of Project Fusion and that’s when we became involved. Reporter: So it was a totally unrelated call when you went there? Superintendent Douglas: Totally unrelated, yes. Reporter: And then you realized like…? Superintendent Douglas: We recognized it as a location that required further attention, yes. Reporter: The unrelated matter, was that like a chop-shop or was it a…? Superintendent Douglas: No, there was a shooting there. Yeah, there was a shooting there. Reporter: (inaudible)… suspects? Superintendent Douglas: I’m sorry? Reporter: How many guns were seized at that location? Superintendent Douglas: Today? I’m not sure. I haven’t got that number. I don’t know, I’m sorry, I can’t help you. I don’t believe there were any seized there today, but I haven’t got that number. Chief Blair: No, we don’t believe that there were any firearms seized at that location today.

A. Were the Statements Defamatory?

[48] To succeed on a claim for defamation, a plaintiff must establish that the impugned words: (i) would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (ii) referred to the plaintiff; and (iii) were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61 at para. 28. There is no dispute about the second and third elements, only the first element is at issue in this case.

[49] When determining whether words are defamatory, they should be considered in the context in which they were said, according to the meaning they would be given by reasonable persons of ordinary intelligence, knowledge, and experience. The question is whether the words at issue would lower the plaintiff in the estimation of reasonably thoughtful, well-informed people who do not have an overly fragile sensibility: Guergis v. Novak, 2013 ONCA 449 at para. 56.

[50] The context in which Chief Blair made his statement is relevant. As is apparent from the extract quoted in paragraph 47 above, he made the initial statement about the business premises not to single out the location in question but to explain how the investigation came about and how it came to involve the Durham region.

[51] Moreover, Chief Blair did not say that the premises was a location at which guns were sold but that it was identified as a distribution point for guns. Something can be identified correctly or incorrectly.

[52] As a general rule, courts have found that a statement to the effect that someone has been charged with an offence is not defamatory. A reasonable person of ordinary intelligence, knowledge, and experience understands the difference between being suspected or charged and being found guilty: Hancock v. Kawartha Lakes This Week, 2005 CarswellOnt 7987 at para. 7 (ONSC); aff’d 2006 CarswellOnt 396 (ONCA); Miguna v. Toronto Police Services Board, 2004 CarswellOnt 5743 at paras. 4-6 (ONSC), aff'd 2005 CarswellOnt 113 (ONCA); Guergis, at para. 57.

[53] As the Court of Appeal explained in TPG Technology Consulting Ltd v. Canada, 2012 ONCA 87 at paras. 11-12:

A report that someone is under investigation or that they have been arrested for, or charged with, a criminal offence is not considered the "equivalent of saying that the person has committed the crime unless there is something in the language of the report that suggests the plaintiff's guilt" ….

A distinction is drawn "between reports which are thought to do no more than state that a person is under investigation or has been charged with a criminal offence" and reports which assert "directly, or by clear implication, that the plaintiff has been involved in acts amounting to a criminal offence"; the former are generally not considered capable of a defamatory meaning while the latter are.

[54] Chief Blair did not name the business and did not indicate that the unnamed business was charged. He stated that during the course of the initial investigation a “business premise was identified as a significant distribution point for firearms and for controlled substances.” That led to the discovery that the Durham Regional Police was investigating the same premises which led to the formation of a joint task force. Similarly, Superintendent Douglas merely referred to the premises as being “recognized as a location that required further attention.”

[55] The plaintiffs rely on Mann v. International Association of Machinists and Aerospace Workers, 2012 BCSC 181, at paras 73-75 and submit that a person can be defamed by being investigated despite the principle that a statement to the effect that an individual has been charged is generally not defamatory as a matter of law.

[56] Mann is distinguishable on two bases. First, in Mann, the impugned statement was to the effect that there were monies missing from a union, the missing funds were attributed to the plaintiff in the defamation action and that the police were investigating. The attribution of missing funds to the plaintiff went beyond the description of an investigation or a statement that someone had been charged with an offence. Attribution of the missing funds to the plaintiff was akin to a statement of guilt before trial. Second, the court in Mann does not appear to have been referred to the Ontario Court of Appeal decisions to the effect that statements about an arrest or charge are not defamatory.

B. Justification

[57] A defendant is relieved of liability for a statement that is defamatory if the statement is substantially true: Grant, at para. 33. This is known legally as the defence of justification.

[58] To assess justification we must return to the words at issue.

[59] Chief Blair said that during an initial investigation, a particular business premises was “identified as a significant distribution point for firearms and for controlled substances”. That was an accurate statement. The premises had been so identified. The non-redacted information in the search warrant materials supports this statement (see paragraph 21 above).

[60] In addition, Chief Blair stated that it had also been determined that the Durham Police Force was investigating the same premises as a result of a shooting. That too was accurate.

[61] The plaintiffs submit that the reading the defendants urge upon the impugned language is too narrow because press reports took the statements a bit further and suggested more involvement on the part of Supreme Auto than the statements lend themselves to. While it is no doubt unpleasant to be investigated by the police, the police cannot be held responsible for members of the press taking police statements further than they actually went: Hancock v. Kawartha Lakes This Week, 2005 CarswellOnt 7987 at para. 5 (ONSC) aff’d 2006 CarswellOnt 396 (ONCA).

C. Qualified Privilege

[62] The concept of qualified privilege provides a defence to a defamatory statement if the defendant establishes that the words were “fairly warranted and that there was a mutuality of interest or duty on the person to publish the statement and the recipient to receive it.: Young v. Toronto Star Newspapers Ltd. at para. 174 (ONSC); aff’d 2005 CarswellOnt 4856 (ONCA).

[63] The defence of qualified privilege is defeated if the plaintiff establishes that the defendant’s primary motive in making the statement was malice: Hill v Church of Scientology at para. 147; Botiuk v Toronto Free Press Publications Ltd, 1995 CarswellOnt 1049 at para. 79 (SCC); RTC Engineering Consultants Ltd v Ontario, 2002 CarswellOnt 851 at paras. 18, 23 (ONCA).

[64] Section 41(1.2) of the Police Services Act, R.S.O. 1990, c. P.15 provides that a chief of police may disclose personal information about an individual for any one or more of eight enumerated purposes, including “keeping the public informed of the law enforcement, judicial or correctional processes…”.

[65] Courts have recognized that the public has a “right to know” about law enforcement: Webb v. Waterloo Regional Police Services Board at para. 32 (ONCA). The public has a right to know how their tax dollars are being spent and what police are doing to control crime in their communities. The prevalence of gang violence and use of illegal firearms only accentuates that right to know. Similarly, the police have a duty to be accountable to the communities they serve. Section 41(1.2) of the Police Services Act underscores that duty.

[66] The concept of qualified privilege is not, however, absolute. The communication must be “reasonably germane and appropriate to the occasion”: RTC Engineering at para. 26.

[67] The plaintiffs point to the following factors to support their submission the words used at the press conference were not reasonably germane to the occasion and were motivated by malice:

(a) Police often use the word “alleged” in connection with unconvicted suspects but did not do so with Supreme Auto. (b) Police did not identify other locations of interest including one in which Okoko was a part owner. (c) There was no legal, social, or moral duty to hold the press conference. Supreme Auto was no longer under investigation. No guns or drugs had been found on the premises, and no question of public safety existed. (d) The primary purpose of the press conference was the “glorification of Project Fusion” a purpose that could have been achieved without making statements about Supreme Auto.

[68] With respect to the failure to use the word alleged in relation to the premises, courts have recognized that on occasions of qualified privilege, defendants should be granted considerable latitude in their choice of language: Hunter & Boyd & NAFCO v Godin & Mallette & UCCO, 2012 ONSC 4774 at para. 44.

[69] With respect to paragraphs (b) to (d) above, I return to the context in which the statements were made. There was no effort by either police force to single out Supreme Auto. Instead, Chief Blair was explaining how the investigation originated and how it developed. When doing so he did not refer to Supreme Auto but referred only to a business premises. Later in the interview in response to a specific question, Superintendent Douglas identified the premises as Supreme Auto as a location that required further attention. Even that reference to Supreme Auto was, however, made in relatively close proximity to the statement that no firearms were seized there during the searches.

[70] The references to Supreme Auto and the way in which they arose during the press conference were reasonably germane to explaining how Project Fusion originated and developed.

[71] I am not sure one could fairly say that the police were using the reference to Supreme Auto to “glorify Project Fusion” as the plaintiffs suggest. If one’s goal were to glorify the investigation one probably would not highlight a location at which nothing was found.

[72] The plaintiffs submit that the issue of malice requires a trial because it deals with subjective state of mind and intent.

[73] An allegation of malice does not automatically require a trial to resolve. On occasions of qualified privilege there is a "strong presumption" of the defendant's bona fides and honest belief: Laufer v Bucklaschuk at para. 100 (Man CA), citing Netupsky v Craig, aff’d . The plaintiff bears the burden of rebutting that presumption to prove malice.

[74] The reference to a neutral business premises, the mention of Supreme Auto only in response to a specific question and its description as a location requiring further attention do not support a conclusion that the defendants exhibited malice towards Supreme Auto.

[75] Although the plaintiffs have had extensive rights to examine the defendants, they have not raised any evidence on this motion that leads me to believe that there is an issue about the existence of malice that requires a trial to resolve. An allegation without sufficient evidence to raise an issue requiring a trial is not enough to survive a motion for summary judgment.

III. Negligent Misstatement

[76] As an alternative to its defamation claim, Supreme Auto alleges that Chief Blair and Superintendent Douglas made the statements they did at the press conference negligently.

[77] The harm that Supreme Auto is alleged to have suffered from the alleged negligence is, however, harm to its reputation. A defamation claim cannot be 'dressed up' as another claim to avoid the defences available against a defamation claim: Byrne v. Maas at para. 9 (ONSC).

[78] In my view, the negligent misstatement claim here falls into the category of a “dressed up” defamation claim.

[79] I am strengthened in this view by the fact that the plaintiffs have not led any evidence, expert or otherwise, about what standard of care of police should adhere to in a press conference or how the defendants fell short of that standard. Accordingly, there is no genuine issue requiring a trial with respect to the plaintiffs’ claims in negligence relating to the press conference. In those circumstances, the plaintiffs have not raised any issue that requires a trial to resolve with respect to negligent misstatement.

Conclusion

[80] I am satisfied that this is a matter appropriate for summary judgment. Both the issues of the propriety of the search warrant and the issues of defamation (with the possible exception of the issue of malice) are largely legal issues that do not require a trial to resolve.

[81] Whether the search warrant was properly issued turns on the interpretation of the redacted record before the issuing judge. I am as able to conclude whether the redacted ITO provided an adequate basis to issue the warrant as is the trial judge. The plaintiffs had the opportunity to cross-examine the police officer responsible for preparing the ITO. They have not directed me to any issues on that cross-examination that require a trial to resolve.

[82] Similarly, the questions of whether a statement is defamatory, whether it is accurate or whether it is subject to qualified privilege are largely legal issues. Once again, the plaintiffs have not raised any specific issue that requires a trial to resolve. With respect to qualified privilege, the plaintiffs have raised the issue of malice. As noted above though, apart from a general allegation of malice, the plaintiffs have not pointed me to any evidence that creates an issue about malice that requires a trial to resolve.

[83] As noted at the outset of these reasons, the respondent on a motion for summary judgment must put its best foot forward. It cannot rely on mere allegations. It must present actual evidence that demonstrates there is an issue that cannot be resolved on a paper record and requires a trial. The record before me creates no such issues. As a result, the action is dismissed.

[84] Any party seeking costs may provide written submissions within two weeks of issuance of these reasons. A responding party will have one week to respond with a further three business days for reply.

Footnotes:

[1] As a practical matter, the judicial summary is created by Crown counsel and reviewed by the judge to ensure that it provides enough information to the party contesting the warrant to enable it to mount an effective challenge without breaching confidentiality. If it is not possible to do this, the warrant generally falls.

Koehnen J. Released: March 2, 2020