COURT FILE NO.: CV-05-011362

DATE: 2021 03 31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES PERREAULT

Self-Represented

Plaintiff

• and -

REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD

E. Mazzuca, for the Defendant

Defendant

HEARD: May 18, 22-25, 28, October 26, December 3-7, 10-14, 2018; April 29, 30, May 1-3, October 28-31, 2019; February 6, 2020. Written submissions completed June 2, 2020.

REASONS FOR DECISION

LEMAY J

[1] Mr. James Perreault, the Plaintiff, has brought claims against the Peel Police for assault and battery, harassment, and punitive damages flowing from those claims. These complaints span a series of five years, from 2000 – 2005. This matter finally came to trial in May 2018 and was before the Court for nearly thirty days over the next two years. These are my reasons addressing Mr. Perreault’s claims.

Overview

[2] This litigation has been going on for more than fifteen years. It involves claims by the Plaintiff, Mr. Perreault, that he was harassed by various officers of the Defendant, the Peel Regional Police. He is also advancing a claim of assault and battery as a result of the execution of a search warrant at his home on January 24, 2005.

[3] The harassment allegations span the period from late 1999 to 2005 and Mr. Perreault has raised claims of harassment generally, as well as specific events that I will come to.

[4] The events giving rise to this claim began in the late 1990s. Mr. Perreault alleges that he briefly dated a Ms. Jacqui Hammond, a civilian employee of the Peel Police. He also alleges that, from the moment his relationship with Ms. Hammond ended, there were officers at the Peel Police who were out to get him.

[5] One of the ways in which the officers allegedly harassed Mr. Perreault was by regularly stopping his car and issuing traffic tickets to him. Mr. Perreault has a 1995 Eagle Talon with a distinctive paint job that he bought in the fall of 1999. The Talon is painted to resemble the original race car driven by a driver named Tommy Archer. Mr. Perreault claims to have received approximately thirty tickets between 1999 and 2004.

[6] In addition, Mr. Perreault was arrested on June 25, 2003 and charged with the offences of trespass at night, possession of a weapon and mischief over $5000. Mr. Perreault was acquitted of all of these charges by MacDonnell J. (then of the Provincial Court) on December 15, 2004.

[7] In the meantime, in October 2004, Mr. Perreault had had a further altercation with then Cst. Navdeep Chhinzer who was seeking a DNA sample. The request for a DNA sample was part of a larger investigation into a serial sexual predator of some sort who was loose in Peel Region at the time. As a result of his interaction with Cst. Chhinzer, Mr. Perreault was charged with uttering death threats and possession of a prohibited weapon. Mr. Perreault was released on bail the day after these charges were laid, although the Crown Attorney opposed granting Mr. Perreault bail. On March 24, 2005, Mr. Perreault pled guilty to the uttering death threats charge and the Crown withdrew the prohibited weapons charge.

[8] Finally, a search warrant was obtained for Mr. Perreault’s residence on January 24, 2005. It was issued by Justice of the Peace Farnum and was executed late that same evening by the Peel Police’s tactical squad. Mr. Perreault was tasered on the evening of January 24, 2005. The events continued into the early hours of the next day as Mr. Perreault was interviewed on January 25, 2005. The warrant indicated that the Peel Police had received information from a confidential informant that Mr. Perreault might have weapons and explosives in his residence, contrary to his bail conditions, as he was still on bail for the uttering death threats charges from October 2004. During the execution of this search warrant, Mr. Perreault was tasered on multiple occasions and placed under arrest. No charges were laid against Mr. Perreault as a result of this warrant or its execution.

[9] Shortly after this incident on January 24, 2005, Mr. Perreault started this lawsuit. He has advanced various claims in this lawsuit. However, by the time of trial, the issues that were being pursued were limited to a claim for assault and battery for the January 24, 2005 arrest, a claim of general harassment and damages, including punitive damages.

[10] I have divided these reasons into eight additional sections, as follows:

a) The Litigation History

b) The Issues

c) An Overview of the Evidence

d) Mr. Perreault’s Personal History

e) The General Harassment Allegations

f) The Assault and Battery Claim

g) Damages

h) The Conduct of Counsel

[11] In each of these sections, I have set out a number of subsections. I have endeavoured not to be repetitive but there are complex interconnected issues in this case.

The Litigation History

[12] This case started by way of a Statement of Claim that was issued on November 2, 2005 and amended on March 9, 2006. There have been no subsequent amendments to the Statement of Claim. Mr. Perreault’s claim was for $5 million for assault, battery and harassment and $500,000 for punitive damages. It is useful to divide the litigation history into the pre-trial, trial and post-trial events.

a) Pre-Trial Events

[13] The Defence in this matter was filed on March 31, 2006. Counsel for the Peel Police has been the same throughout this action. Mr. Perreault, on the other hand, was originally represented by Winston Mattis, who I understand is no longer practicing law. Hedy Epstein took over the case at some point more than ten years ago, and was counsel to Mr. Perreault at the discoveries, which were held in May 2009.

[14] The trial record was passed on July 21, 2015. I am not aware of any other motions that were brought in this matter in the meantime.

[15] Ms. Epstein remained counsel through to the pre-trial, which was held on September 20, 2016. I understand that the notice for Mr. Perreault to act in person was served in February 2017. Emery J. was the pre-trial judge, and identified the issues as set out at paragraph 32, infra[DI(1] .

[16] After the pre-trial before Emery J., this matter was originally put on the May 2017 blitz list. It was adjourned to the January 2018 blitz list on consent because Mr. Perreault had become self-represented. There was an issue between the parties about whether this should be a jury or a non-jury trial. It remained a non-jury trial.

[17] An exit pre-trial was held before Daley R.S.J. (as he then was) on January 10, 2018. At that time, Daley R.S.J. determined that the matter was not ready for trial and ordered Mr. Perreault to provide significant additional productions to the Peel Police. The trial was then scheduled to proceed on the May 2018 blitz list.

b) Trial Events

[18] I was assigned as the trial judge in this matter in May 2018 and was advised that the trial was scheduled for thirty-five days. On the first day of trial, May 18, 2018, I discussed witness lists, experts, and a joint book of documents with the parties. At that point, we created a schedule of witnesses, including the order in which the witnesses would be called. After our discussion, I also required the parties to create an Agreed Statement of Facts and a joint book of documents.

[19] The Agreed Statement of Facts was marked as Exhibit 1 and is set out as Appendix “A” to these reasons. During the trial, the parties entered a Supplemental Agreed Statement of Facts that was entered as Exhibit 16. It is set out as Appendix “B” to these reasons. I will refer to the agreed facts as appropriate throughout my factual findings in this case. The joint book of documents was marked as Exhibit 2.

[20] The first witness was Mr. Perreault’s girlfriend, Wonita Duffy. Ms. Duffy testified first so that she could assist Mr. Perreault with the remainder of the trial. Ms. Duffy remained at counsel table throughout the trial, and assisted Mr. Perreault with the organization and presentation of his case. This was done with Mr. Mazzuca’s consent and was of considerable assistance to me.

[21] The trial was delayed because, after most of Mr. Perreault’s evidence-in-chief had been provided, we discovered that there was an issue about a confidential informant. Specifically, a confidential informant had provided information to the Peel Police that resulted in the request for, and issuance of, the warrant that led to the search of Mr. Perreault’s house on January 24, 2005 and the tasering of Mr. Perreault. Mr. Perreault had come to conclusions about the identity of this alleged confidential informant and wanted to call this person as a witness.

[22] The details relating to this motion are set out in my decision of November 5, 2018, Perreault v. Peel Police 2018 ONSC 6660. I need not repeat those reasons here. I simply note that the issues of informer privilege prevented Mr. Perreault from completing his evidence. In order to ensure that the trial proceeded expeditiously, we did not complete Mr. Perreault’s evidence until the informer privilege issue had been dealt with. However, on the consent of both sides, we did hear evidence from some of Mr Perreault’s other witnesses.

c) Post-Trial Events

[23] Given the fact that the evidence in this trial consumed approximately twenty-five days of hearing time over two years, I ordered the transcripts of the evidence and provided them to both Mr. Perreault and counsel for the Peel Police. The transcripts were available to all parties for the completion of their arguments.

[24] At the hearing on October 31, 2019, we discussed the timetable for written submissions. Mr. Perreault’s written submissions were to be due on December 13, 2019, with the Peel Police’s due December 20, 2019. Reply submissions were then due from Mr. Perreault in January 2020.

[25] In addition, at this hearing I provided the parties with a list of specific issues that I was interested in hearing submissions about. Those issues were as follows:

a) What evidence is there that the tickets that Mr. Perreault received were unjustified?

b) Whether the principles of spoliation should be applied to various missing pieces of evidence, especially the knife that formed the basis for the June 2003 weapons charges.

c) Whether Mr. Perreault can argue that the police improperly conducted themselves in the October 2004 incident, given that Mr. Perreault pled guilty to uttering death threats. In that regard, I directed Mr. Perreault’s attention to the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.

d) Were there any special considerations for the evidence of the police officer who swore the information to obtain the January 24, 2005 search warrant, given that this warrant was obtained with information from a confidential informant that the Court (and Mr. Perreault) did not have.

e) If I find that the search warrant was improperly granted, is it still open to me to find that the warrant was properly and legally executed?

[26] I duly received the submissions from the parties. Unfortunately, Mr. Perreault confined his submissions to the questions that I had asked instead of providing me with his overall submissions on the case.

[27] As a result, at the February 6, 2020 hearing date, I discussed with the parties the need for additional submissions. I also posed a series of questions to the parties and set a timetable for written materials to be exchanged. The list of questions that I posed consumed several pages of transcript and dealt with factual and legal issues I was interested in having both parties explore. My reasons below will deal with most of those issues, so it is not necessary to reproduce them here. However, it should be noted that I ordered a copy of the February 6, 2020 transcript for the parties and provided it to them on an expedited basis so that they had a complete list of my questions before they prepared their submissions.

[28] As part of that timetable, I scheduled a further hearing date for April 17, 2020for the parties to attend and answer any questions that I had once I had reviewed the written submissions.

[29] The COVID-19 pandemic intervened. As a result, the parties ended up seeking (and receiving) substantial extensions to the timelines for written submissions. In addition, I advised the parties that I would not proceed with the date for oral submissions unless either party thought it was necessary. Both parties have confirmed that they did not need to make final oral submissions. It is not necessary to review the events that led to these conclusions in detail. However, there are a couple of issues that should be addressed.

[30] Since February 2020, Mr. Perreault has sought to adduce additional evidence. Specifically, Mr. Perreault sought to rely on his income tax returns, which were not entered into evidence. Mr. Mazzuca opposed this request and asked that the evidence be confined to the documents that had been filed at trial. There was extensive email discussion about this issue, some of which was with me directly. I can confirm for the parties that this documentation will be marked as lettered exhibits. A separate list of these exhibits will follow sometime in the next week to ten days. I will address these issues in the section on evidence, below.

[31] In any event, the parties provided me with a series of additional submissions on the issues in this case. Those submissions were provided in writing and were completed by June 2, 2020.

Issues

[32] The issues in this case were identified by Emery J. at the pre-trial on September 20, 2016. Those issues were:

a) Assault and battery for the January 24, 2005 arrest.

b) General Harassment.

c) Damages, including punitive damages.

[33] In his endorsement, Emery J. noted that “all else is intended to provide the narrative.” I took that statement to mean that additional evidence could be provided for context, but that the issues were limited to these issues. Mr. Perreault was represented by counsel at the pre-trial.

[34] At the outset, I want to address two specific additional issues that Mr. Perreault raised. First, throughout his submissions Mr. Perreault made reference to other alleged (and in some cases, proven) police misconduct of both an individual nature and a systemic nature. Some of these incidents related to other police forces, while others related to the Peel Police.

[35] During Mr. Perreault’s opening statement, I advised him that I did not intend to address the larger issues that he was raising and that my inquiry would be focused on what had happened to Mr. Perreault. I confirm that I do not intend to make any findings about these issues, or otherwise consider them, for three reasons:

a) The actual evidence about these incidents in the record was very limited and does not permit me to make factual findings.

b) The conduct of other police forces is clearly irrelevant to the issues that I have to decide in this case. This case requires me to consider the conduct of the Peel Police in its interactions with Mr. Perreault. Any conduct of a different police force in different cases is not relevant to the issues I have to decide.

c) The conduct of the Peel police in other cases is also irrelevant. I acknowledged that there have been findings of misconduct made against other Peel Police officers in other cases. See, for example, R. v. Somerville, 2017 ONSC 3311, which is the citation for one of the incidents referred to by Mr. Perreault. However, the fact that other officers in other cases engaged in misconduct is not a factor for me to consider in deciding the facts of this case.

[36] Mr. Perreault is a firm believer that the police in general, and the Peel Police in particular, are regularly engaged in misconduct against members of the public. His comment at trial and his cross-examinations of witnesses, especially police witnesses, contained regular references to this alleged misconduct. On more than one occasion, Mr. Perreault would make reference to news articles and other documents that he wanted to include in the record.

[37] Addressing the very broad question of alleged systemic police misconduct is well beyond the scope of my responsibilities in the case before me. As I have noted above, I am required to consider the conduct of the Peel Police and its officers who were involved in this case. Therefore, I am not addressing these more general issues. The limitations to my role in this case were made clear to Mr. Perreault on a number of occasions during the trial.

[38] Second, Mr. Perreault has referenced events that took place between him and the Peel Police after 2005. The post-2005 events are, again, not relevant to the questions that I have to determine. I have not considered this evidence and I made it clear during the case that I would not address this evidence. For example, at the hearing on December 10, 2018, Ms. Duffy alleged that her daughter has been followed by the Peel Police ever since Ms. Duffy’s daughter visited Ms. Duffy at Mr. Perreault’s house.

[39] Similarly, several witnesses including Mr. Perreault, his father and Mr. Perreault’s friend Rob Duckworth testified that, when they telephoned Mr. Perreault, they could hear a strange clicking noise on the telephone. Mr. Perreault further stated that this clicking noise was not present when he was talking to customers, but was present when he was talking to friends.

[40] There were other issues such as this that were raised at trial. I directed the parties to meet and discuss the issue of whether the Peel Police were following Mr. Perreault or others involved in this trial as I wanted to ensure that there was no witness or party intimidation taking place. Once I made this suggestion, I heard nothing from the parties to suggest that I should make any further inquiries into any issues of witness intimidation.

[41] In any event, however, the events that took place after the Statement of Claim was originally filed are not part of this action and are not before me. This is especially true since the Agreed Statement of Facts clearly states that “[Mr. Perreault] will state that from May 2005 to September 2008, he had no problems with the Peel Police.” Given the Plaintiff’s concession in this regard, subsequent issues between the Plaintiff and the Peel Police would be too remote from the issues that were raised in this action. Therefore, the issues that I will decide are limited to the ones that were identified by Emery J. at the pre-trial and I will not consider these post-claim issues further.

Evidence

[42] The evidence in this case consumed more than twenty-five court dates spread out over more than two years. I heard viva voce evidence from the Plaintiff and numerous other witnesses, as well as from various Peel Police officers, both active and retired. Given the very considerable amount of time that has passed since the events giving rise to this case, many of the active officers have been promoted or retired. In the reasons that follow, I will use their ranks as at the time that the events took place.

[43] In terms of the witnesses I heard evidence from, I have considered all of that evidence. I have not necessarily mentioned the name of every witness that testified as much of the evidence I heard can be addressed in an integrated way. For example, Mr. Perreault alleged that he was subject to three separate strip searches. Three separate officers testified about these issues, but their evidence is similar and I have dealt with it together.

[44] I also heard expert evidence from Dr. Barry Gilbert, who is a psychiatrist who examined the Plaintiff at the request of the Peel Police, as well as evidence from Mr. Chris Lawrence, who was tendered by the Peel Police as a use of force expert. I will address the expert evidence as it arises in my decision. No separate voir dire was held on the admissibility of the evidence of either expert. However, I will address both admissibility and weight in my analysis, as I am mindful of both my role as a gatekeeper with respect to expert evidence and of the fact that this role is ongoing. See Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at paras 60-67.

[45] I will also weigh the rest of the evidence as I come to it in my findings of fact. However, there are four issues that should be addressed at the outset as they have more general application throughout these reasons:

a) General principles relating to spoliation.

b) Documentation that was provided after the evidence closed.

c) General principles relating to credibility.

d) Mr. Perreault’s claims that he was strip-searched on multiple occasions.

a) Spoliation

[46] The issue of spoliation arises in this case in relation to the following potential evidence that was not available at trial:

a) The knife that formed the basis of the June 2003 charge of carrying a concealed weapon.

b) The video of the interview between Det. Geoffrey Gorlick and Mr. Perreault on January 8, 2004.

c) The cellphone records showing the number of times that Cst. Chhinzer called Mr. Perreault on the night of October 19, 2004.

d) The knife that was allegedly seized from Mr. Perreault when Cst. Chhinzer arrested Mr. Perreault.

e) The video of the interview between Det. James Kettles and Mr. Perreault that took place on January 25[DI(2] , 2005.

[47] Since the issue of spoliation arises with several items, it is useful to set out the general principles of spoliation at this point, and then apply those principles to the specific pieces of evidence as they arise.

[48] Spoliation does not occur merely because evidence has been destroyed. There must be an intent to destroy the evidence to affect the litigation. See McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, 97 Alta. L.R. (4th) 199.

[49] The requirements for spoliation were set out by Newbould J. in Nova Growth Corp. et al. v. Andrzej Kepinski et al., 2014 ONSC 2763, at para. 296, as follows:

[296] Thus a finding of spoliation requires four elements to be established on a balance of probabilities, namely:

(1) the missing evidence must be relevant;

(2) the missing evidence must have been destroyed intentionally;

(3) at the time of destruction, litigation must have been ongoing or contemplated; and

(4) it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.

[50] Newbould J. went on to observe that the spoliation inference is a legal presumption that, because a litigant destroyed a particular piece of evidence, the evidence would have been damaging to the litigant.

[51] These basic principles will be applied to the missing pieces of evidence as they arise.

b) Documentation Provided After the Evidence Closed

[52] In his submissions in March 2020, Mr. Perreault sought to rely on his tax returns. These had not been made part of the evidentiary record in this case. Therefore, I released an endorsement on April 1, 2020 in which I advised Mr. Perreault that the evidentiary portion of the trial was over and that additional evidence could only be adduced in limited circumstances. I directed Mr. Perreault’s attention to the Supreme Court of Canada’s decision in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983. I also outlined the test in Sagaz for Mr. Perreault.

[53] I also pointed out to the parties that I had allowed the income loss claim to proceed but had also ruled, on more than one occasion, that the documentation was limited to what was before me. Indeed, there were numerous occasions after Mr. Perreault’s case had been completed where Mr. Perreault sought to adduce additional evidence or suggested that he could go and obtain additional evidence and I had to advise him that his case was completed except for reply evidence.

[54] However, with respect to the income tax information, my April 1, 2020 endorsement did not preclude Mr. Perreault from seeking to reopen his case. I concluded my endorsement by stating the following, at para 23:

[23] I must also advise Mr. Perreault at this point that, in the absence of an order from me, there is no basis for me to receive any documents that are not part of the record before me. Should Mr. Perreault wish to proceed to bring a motion to introduce new evidence, then he is free to advise me that he wishes to bring this motion. We can then discuss the procedure for any motion.

[55] I have not received any motion from Mr. Perreault to re-open the evidence. However, I did receive his closing submissions on April 6, 2020. Attached to those closing submissions were documents tendered to corroborate Mr. Perreault’s evidence on certain points in the trial. None of these documents were made part of the record at trial. In addition, Mr. Perreault’s closing submissions were full of references to facts that were not in evidence before me.

[56] Counsel for Peel Police objected to these additional documents, and addressed their inclusion in his supplementary closing submissions, which were filed on April 20, 2020. Counsel also objected to Mr. Perreault’s reliance on facts that were not part of the evidence. I have not considered the assertions that Mr. Perreault has made that are not part of the evidentiary record. I will deal with the documents below.

[57] Mr. Perreault provided reply submissions, which were received on May 25, 2020. In the course of providing his reply submissions, Mr. Perreault included transcripts from the 2003 criminal trial before MacDonnell J. as well as other additional documents relating to Mr. Perreault’s medical condition. Mr. Mazzuca objected to the inclusion of these documents by way of an email dated June 2, 2020. At no point after sending my April 1, 2020 endorsement did I receive any motion from Mr. Perreault or any explanation as to why this documentation was not provided earlier in the hearing.

[58] Although there is no formal motion before me, I am mindful of the fact that Mr. Perreault is self-represented. As a result, I will briefly consider the test set out in paragraph 20 of Sagaz for the admission of documentation after a hearing has concluded. I acknowledge that Mr. Perreault is seeking to bring this documentation forward before the submissions have all been completed in this matter. However, given the significant number of witnesses in this matter and the fact that the evidentiary portion of the hearing was completed, I conclude that it is appropriate to apply the test in Sagaz to the receipt of this evidence.

[59] This two-part test requires me to consider the following questions:

a) Would the evidence have affected the outcome of the hearing?

b) If so, was the evidence discoverable at the time of the hearing?

[60] Given the conclusions that I have reached, I am not persuaded that any of the new evidence that Mr. Perreault seeks to rely upon would have affected the outcome of the hearing. I start with the income tax returns. I have determined that Mr. Perreault is not entitled to damages for anything that transpired in this case, so the income tax returns would not have affected the outcome of the case. In any event, however, Mr. Perreault was able to work at a good salary for two years after the last of these incidents, so even if I had found that the Peel Police were liable for tortious conduct, a loss of income claim would not have succeeded in any event.

[61] Then, there are the other documents. Given my findings about Det. Luce’s credibility, additional evidence to demonstrate that he was not being truthful with the Court is not necessary. In any event, the transcripts of the previous hearing are not admissible as evidence. They can only be used to impeach witnesses. The remaining documents do not appear to be particularly relevant to the issues I have to decide.

[62] In any event, however, there is no explanation from Mr. Perreault as to why these documents were not reasonably available at the hearing of this matter. As a result, I will not consider these additional documents as they do not appear to meet either branch of the Sagaz test.

c) Credibility and Reliability

[63] Credibility and reliability are related concepts. Credibility is the question of whether the witness is being truthful. Reliability is the question of whether, even if the witness is attempting to be truthful, their memory of the events they are testifying about is accurate.

[64] It is worth setting out the oft-cited decision of Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A), where the Court said the following about credibility at p. 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

[65] In addition, it has long been accepted that a trier of fact can accept some, all or none of the evidence of a witness. See, for example, R. v. R.(D.), 1996 207 (SCC), [1996] 2 S.C.R. 291, at para. 93.

[66] For reasons that I will explore below, I have concluded that some of Mr. Perreault’s evidence should be accepted while other parts of it should be rejected. I have reached those conclusions based on my assessment of the surrounding circumstances and I will explain them as I come to them.

[67] Similarly, I have concluded that some of the witnesses tendered by the Peel Police were both credible and reliable, while others had problems with reliability and one or two had serious credibility issues. Again, I will explain my conclusions as they arise.

d) Claims of Strip-Searches

[68] In his evidence at trial, Mr. Perreault claimed that he was strip-searched on the three occasions when he was arrested by Peel Police. None of these allegations were raised in Mr. Perreault’s Statement of Claim. Indeed, as I understand it, none of these allegations were raised until long after the fact.

[69] In each case, the Peel Police called evidence from the cells officer, who is the officer responsible for logging and managing prisoners when they are in the cells. In each case, the cells officer provided testimony that a strip search was not done, and that there were procedures if a strip search was to be done. These procedures involved obtaining the authorization of the Staff Sergeant in command of the station to conduct the strip search. In addition, I received evidence of the cell logs for each of Mr. Perreault’s arrests. These logs do not show any evidence of a strip search being conducted. Although these alleged strip searches arose in the context of each arrest, the similarities in the underlying evidence are such that it is useful to deal with them all together.

[70] I reject Mr. Perreault’s evidence that these strip searches took place. I find that they did not take place for the following reasons:

a) The contemporaneous documentation (the cell logs) demonstrates that there was no strip search that took place.

b) Each of the cells officers testified that a strip search would have to be authorized by the Staff Sergeant in command of the station. This requirement strongly supports the inference that there would have been a record if a strip search had taken place.

c) Mr. Perreault has a strong dislike of the Peel Police. It is unlikely that Mr. Perreault would have passed up an opportunity to claim that he had been improperly strip-searched in his Statement of Claim. Further, there was no good explanation offered by Mr. Perreault as to why these allegations were not raised earlier.

d) As I will come to later, there was a tendency in Mr. Perreault’s testimony to exaggerate the things that have been done to him and a tendency to look to cast blame on others. This tendency applies to the evidence about the strip searches as well.

e) Mr. Perreault’s reporting of these strip searches has not been consistent. Specifically, in his interview with Dr. Gilbert (described below) Mr. Perreault only reported one incident of a strip search, unlike the three he reported to me. This inconsistency supports the conclusions that I have reached on this point.

[71] Finally, there is the arrest on the late evening of January 24and early morning of January 25, 2005. In addition to the problems I have set out above, Mr. Perreault’s allegations that he was strip-searched on this occasion also run afoul of two additional problems. First, Mr. Perreault was taken to the station to be interviewed by Det. Kettles. The time between arrival at the station and the commencement of the interview was minimal. It did not appear to be sufficient time to conduct a strip search. Second, by the time that Mr. Perreault arrived at the police station, it would have been clear to the officers that they did not have grounds to believe that he had been in violation of his bail conditions in any significant way. As a result, a strip search would have been unlikely to have been authorized.

[72] For these reasons, I reject Mr. Perreault’s claims that he was strip-searched on any of the occasions on which he was arrested by the Peel Police.

Mr. Perreault’s Personal History

[73] As will be seen, I have concluded that Mr. Perreault is responsible for much, but not all, of what has transpired in this case. As a result, it is useful to consider Mr. Perreault’s formative circumstances and medical diagnoses. The facts relating to these issues inform my findings of facts on other issues in this case.

a) Prior to 2000

[74] Mr. Perreault is, I understand, an only child. His parents are Jacques Perreault and Ginette Perreault. Jacques testified in this case, while Ginette did not. When I refer to Mr. Perreault in these reasons, I mean the Plaintiff. If I am referring to Mr. Jacques Perreault, I will use his full name. At most of the material times, Mr. Perreault lived in his own house near Great Lakes Drive in Brampton, while his parents lived in a home some distance away on Vodden Street, also in Brampton.

[75] Mr. Perreault is currently 49 years old. He dropped out of high school when he was in grade 10 and does not have any formal education beyond that point.

[76] Mr. Perreault has a passion for motocross racing and began racing motorbikes when he was 11 years old. He has continued to race bikes. His racing career was interrupted when he suffered a very serious injury in 1992. Mr. Perreault was riding his motorbike when he was run over by a transport truck. Mr. Perreault’s right leg was torn apart and he was in Sunnybrook for a considerable period of time recovering. Mr. Perreault still has visible injuries on his right leg and has some difficulties running as a result of this injury. I will refer to this as the 1992 injury or the 1992 MVA.

[77] Mr. Perreault was able to recover from this injury and continue with his motocross racing. However, Mr. Perreault also founded a business called SquidSkins. This business was engaged in building moulds and other custom items for motorbikes. Mr. Perreault continues to run this business. The income from this business has been up and down. However, Mr. Perreault did make enough money from this business and from other ventures that he was able to purchase his own house in 2000 or 2001.

[78] Mr. Perreault owned a black 1995 Eagle Talon in which he was involved in a motor vehicle accident (“MVA”) in and around October of 1999. The accident took place on Highway 401. The car was a total write-off. Shortly after the accident, Mr. Perreault purchased a new 1995 Eagle Talon that was painted black and yellow. The paint job makes Mr. Perreault’s car easy to spot.

b) Mr. Perreault’s Involvement with the Peel Police

[79] Mr. Perreault testified that his negative interactions with the Peel Police started when he dated Ms. Jacqui Hammond in the summer of 1999. Prior to that time, Mr. Perreault would have considered himself a supporter of the police. In that respect, Mr. Perreault pointed to the fact that he sponsored Derek Vammus, who was a Peel Police officer, as a motocross racer.

[80] Mr. Perreault claimed that, from the moment of his involvement with Ms. Hammond forward, his interactions with police were negative.

[81] The relationship between Mr. Perreault and Ms. Hammond was brief, lasting for approximately three months. Shortly after the relationship ended, Mr. Perreault left a letter in Ms. Hammond’s mailbox. Ms. Hammond alleged that this letter was threatening and made a complaint to the Peel Police. At the time, Ms. Hammond was employed as a civilian clerk with the Peel Police.

[82] The Peel Police investigated and interviewed both Mr. Perreault and Ms. Hammond. Ultimately, the letter was deemed not to be threatening by the investigating officers and Ms. Hammond’s complaint was cleared as unfounded. The occurrence report from Peel Police was part of the materials before me.

[83] Even though Ms. Hammond’s complaint was cleared as unfounded, Mr. Perreault dates his problems with the Peel Police to this incident, and claims that, from this moment forward, there were officers (and particularly white male officers) at Peel Police that were out to get him.

[84] There was a gradual escalation of events from 2000 to 2005. I will review the evidence and the factual conclusions on the events in this time period below. However, before I come to that review, I will set out some additional information about Mr. Perreault’s current circumstances as well as his medical conditions and diagnoses.

c) Mr. Perreault’s Current Circumstances

[85] Mr. Perreault worked for a company called Multimatic starting in 2007. This was a full-time job, and Mr. Perreault got this job because of the work that he had done with SquidSkins making motorcycle moulds. Mr. Perreault held this job for almost two years, but left in 2009 because the hours were too long.

[86] Mr. Perreault, Ms. Duffy and Jacques Perreault all testified that Mr. Perreault was doing some work with SquidSkins, his business, between 2009 and the trial. This work included building motorbike parts, storing motorbikes and doing oil changes. The Peel Police also tendered some documents that showed that the business continued to be active after 2009 and that it continued to have an active social media presence. However, I was not provided with any evidence as to how much money Mr. Perreault made in this time period.

[87] In addition, Mr. Perreault was in receipt of ODSP (Ontario Disability Support Payments) from 2010 until trial. I was not given any medical evidence to substantiate the basis for Mr. Perreault’s entitlement to ODSP benefits, but it appeared to be common ground that he had been entitled to ODSP since 2010.

[88] Finally, Mr. Perreault continues to race his motorbike in events for more senior motorbike racers. All of his witnesses testified that he continues to race, although there was evidence that Mr. Perreault does better in six-lap races than in 12-lap races because of problems with his hands.

[89] In terms of his motorbike racing, there was also evidence that Mr. Perreault had an accident on his motorbike in 2008. This accident, which was observed by Mr. Perreault’s friend Terry Chateau (who testified) took place during a race. Another racer collided with Mr. Perreault and they both went flying. Mr. Perreault suffered a concussion as well as injuring his right shoulder and elbow. He had to be taken away in an ambulance. Mr. Perreault was working at Multimatic at the time and was off work for a couple of months.

[90] After this accident, Mr. Perreault was able to return to racing his motorbike.

d) Mr. Perreault’s Medical Conditions

[91] I heard testimony from both Mr. Perreault’s family doctor, Dr. Martin Dobkin, and from Dr. Gilbert, who was tendered by the Peel Police as an expert. Before setting out their evidence, I start by noting that Mr. Perreault also tendered evidence from family and friends, and particularly Ms. Duffy, on his current medical conditions.

[92] Specifically, Mr. Perreault raised the following medical issues:

a) The previous injury to his right leg from the 1992 motorcycle accident.

b) The fact that after racing his hands are now swollen, which Mr. Perreault attributes to the tasering in 2005.

c) His fears of cars and changes in mood.

d) The fact that Mr. Perreault has night terrors and difficulties sleeping.

[93] The last two issues were raised in support of Mr. Perreault’s claim that he has suffered Post-Traumatic Stress Disorder (“PTSD”) as a result of the tasering in 2005. There were other symptoms that were relied on to support Mr. Perreault’s claim of PTSD.

[94] These medical issues were supported to some extent by the non-medical witnesses that Mr. Perreault called. Ms. Duffy testified to all four of these. Jacques Perreault testified that Mr. Perreault complains of nightmares and of problems with his hands. Some of Mr. Perreault’s other friends also testified, to some extent, about his medical condition. In particular, there was testimony about the change in his personality over the last twenty years, focusing on the period around these incidents.

Family Doctor’s Evidence

[95] Dr. Dobkin has been Mr. Perreault’s family doctor for thirty years. Dr. Dobkin testified about the ongoing problems that Mr. Perreault had with respect to his leg from the accident in 1992. I accept that these problems continue to exist.

[96] Dr. Dobkin saw Mr. Perreault the morning after he had been tasered in order to deal with the blisters on Mr. Perreault’s hands. Mr. Perreault also had four puncture wounds as a result of the tasering.

[97] Dr. Dobkin concluded that the blisters from the tasering healed within approximately two weeks and, that by August of 2005, Mr. Perreault was not raising any complaints about his hands. Indeed, Dr. Dobkin did not see Mr. Perreault at all between 2005 and 2008, and Mr. Perreault had no treatment in that time period. Mr. Perreault confirmed this evidence during his own cross-examination.

[98] In a visit in 2008, Dr. Dobkin confirmed that Mr. Perreault had had an incident with his left hand while playing baseball. Dr. Dobkin also confirmed Mr. Perreault had chronic numbness and decreased strength in his right hand at this point. Dr. Dobkin had identified possible Carpal Tunnel Syndrome in Mr. Perreault’s left hand as far back as 1999. However, in 2008 Dr. Dobkin referred Mr. Perreault to a Dr. Temple to see about nerve damage as a result of the tasering.

[99] Dr. Dobkin did testify that it was possible that Mr. Perreault had problems with his hands because of the tasing. However, that evidence needs to be considered against the fact that there was no physiotherapy and no other treatment of any description for a period of three years.

[100] Dr. Dobkin referred Mr. Perreault to Dr. Bryan Temple, a neurologist. Dr. Temple’s November 10, 2008 report was tendered pursuant to a notice that was provided by Mr. Mazzuca under section 35 of the Evidence Act, R.S.O. 1990, c. E.23, in December 2017. It seems to me that the more appropriate section of the Evidence Act is section 52. However, either way I view the report as admissible as evidence before me.

[101] Dr. Temple conducted testing on Mr. Perreault and found no evidence of any problems other than of the subjective complaints that Mr. Perreault had of numbness and tingling in his hands. Therefore, Dr. Temple did not diagnose Mr. Perreault as having any problems with his hands.

[102] Dr. Dobkin also noted that Mr. Perreault had an accident on the motocross track on July 6, 2008. At that time, Mr. Perreault suffered a concussion, as well as injuries to both shoulders and to his right elbow. Mr. Perreault was off work as a result of this accident until September 8, 2008.

[103] Finally, in 2010, Dr. Dobkin referred Mr. Perreault to the Centre for Addiction and Mental Health (“CAMH”) for an assessment because Mr. Perreault could no longer work. That report is not in evidence, and the doctors who authored it were not called. However, it was referenced in the evidence of Dr. Barry Gilbert.

Dr. Gilbert’s Evidence

[104] I must consider both the admissibility of Dr. Gilbert’s opinion evidence as well as the weight to be given to it if it is admissible. The Peel Police seek to have Dr. Gilbert qualified as an expert in psychiatry with sub-specialties in personality disorders and PTSD.

[105] Dr. Gilbert’s report and his C.V. were provided to Mr. Perreault approximately a year before the trial started and eighteen months before Dr. Gilbert testified. As a result, Mr. Perreault had ample time to investigate Dr. Gilbert’s qualifications, his scholarly work and his other cases. I was not provided with any information beyond what was in Dr. Gilbert’s C.V. As a result, I accept the contents of the C.V., which were proven through Dr. Gilbert as uncontradicted evidence of his skills, qualifications and work history.

i) Admissibility of Dr. Gilbert’s Opinions

[106] The most recent articulation of the test for admitting expert evidence is set out in the Supreme Court’s decision in White Burgess Langille Inman v. Abbott and Halliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. Cromwell J. divides the inquiry for determining the admissibility of the expert report into two steps.

[107] At the first step, the Court considers the four criteria for the admissibility of expert reports from R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. Those criteria are:

a) Necessity

b) Relevance[DI(3]

c) A qualified expert.

d) No exclusionary rule preventing the admission of the evidence. In this case, I do not see an exclusionary rule preventing the admission of the evidence and none was argued. As a result, I will not consider that factor further.

[108] When Dr. Gilbert was tendered as an expert, Mr. Perreault seemed to object to his qualifications. As a result, I discussed with the parties whether I should conduct a separate voir dire on Dr. Gilbert’s qualifications or whether I should hear his evidence and then determine both admissibility and weight at the end of the case. In essence, I was proposing that the parties adopt the same approach as I adopted in Bielanski v. Mundenchira, 2019 ONSC 1162, at paras. 50 and following.

[109] After some consideration, Mr. Perreault ultimately decided not to challenge the admissibility of Dr. Gilbert’s report. However, I have decided to conduct an analysis of whether the evidence should be admissible because Mr. Perreault is self-represented and because of my role as a gatekeeper for this type of evidence. On this point, see Bruff-Murphy, at paras 60-67[DI(4] .

[110] I start with necessity. Expert opinion evidence is not necessary merely because it would be helpful to the trier of fact. In order to be necessary, expert evidence must be special or peculiar evidence that is beyond the scope of knowledge of the trier of fact. The areas for which Dr. Gilbert is tendered as an expert relate to psychological conditions that are well beyond the scope of my knowledge. Therefore, the evidence meets the necessity criterion.

[111] This brings me to relevance. In my view, the evidence is relevant for two reasons:

a) Mr. Perreault is claiming to have suffered PTSD as a result of the events of January 24 2005. Dr. Gilbert’s evidence will help provide an understanding of PTSD. His evidence will also help in understanding whether Mr. Perreault is suffering from PTSD and, if so, what caused that PTSD.

b) Mr. Perreault is claiming harassment on the part of the Peel Police. The Peel Police are defending this allegation by arguing, in part, that Mr. Perreault was aggressive and needlessly confrontational with the police. Dr. Gilbert’s evidence on personality disorders may assist in understanding some of the causes of Mr. Perreault’s negative interactions with the police.

[112] This then brings me to Dr. Gilbert’s qualifications. As I noted, Dr. Gilbert’s C.V. was proven and was not challenged in any meaningful way. Having reviewed Dr. Gilbert’s experience, he is clearly qualified to offer the opinion evidence that the Peel Police sought to tender. A sampling of that experience includes:

a) Dr. Gilbert has seen and/or treated approximately 1,200 patients with PTSD.

b) Dr. Gilbert has taught and written extensively on both PTSD and on personality and mood disorders.

c) Dr. Gilbert has been engaged in psychiatry and, in particular, in the areas where the Peel Police sought to qualify him, for twenty-five years, including in teaching, clinical work and writing.

[113] This brings me to the issue of bias, and whether Dr. Gilbert can offer an unbiased opinion. This is where Mr. Perreault’s general complaint with Dr. Gilbert’s report lies. In cross-examination, it became clear that Mr. Perreault had videotaped a portion of his clinical interview with Dr. Gilbert. Mr. Perreault suggested to Dr. Gilbert that this had been done because Mr. Perreault knew that Dr. Gilbert was paid by Mr. Mazzuca and that Dr. Gilbert was paid to discredit Mr. Perreault.

[114] Mr. Perreault went on to cross-examine Dr. Gilbert about how much he made from each referral and whether not providing a report favourable to his client could result in future referrals drying up. Dr. Gilbert quite reasonably responded to this line of questioning by pointing out his obligation as a professional to provide an unbiased opinion. Dr. Gilbert understood the importance of neutrality in his role as an expert. There is nothing in the records that supports any allegation of bias against Dr. Gilbert.

[115] In this regard, I would also note that Dr. Gilbert conducted an extensive interview with Mr. Perreault and extensively reviewed all of Mr. Perreault’s previous history to reach his conclusions. This careful and thorough approach to forming his opinions is an indication that Dr. Gilbert was forming his opinions without regard to the opinion that his client, the Peel Police, might have wanted him to render.

[116] For all of these reasons, I conclude that the report is admissible as an expert opinion in this case.

ii) Dr. Gilbert’s Opinion

[117] In the previous section, I have described Dr. Gilbert’s approach to forming his opinion. Ultimately, Dr. Gilbert’s opinion was that Mr. Perreault had a personality disorder. Specifically, this disorder included narcissistic borderline and antisocial features.

[118] Dr. Gilbert described narcissistic personality as a tendency to be quite self-involved, to have fragile self-esteem and to be quite prone to feeling offended. Dr. Gilbert testified that narcissistic people can be quite vindictive and easily take offence.

[119] Dr. Gilbert testified that borderline personality included a tendency for states of chronic anger, chronic states of emotional dysregulation and often high anxiety.

[120] Finally, the antisocial features of Mr. Perreault’s personality disorder are a tendency to disregard social norms and the rights of other people. This can lead to both insensitivity and aggression.

[121] I accept Dr. Gilbert’s conclusion that Mr. Perreault has a personality disorder for three reasons over and above the fact that Dr. Gilbert’s opinion was formed based on a careful and thorough clinical evaluation. First, it fits with the other evidence that I heard throughout the trial in this matter. In particular, the manner in which Mr. Perreault interacted with the police in Wasaga Beach is supportive of this type of personality disorder, particularly since Mr. Perreault had not had any previous interactions with these officers. I have described this interaction more fully at paragraphs 145-147. Dr. Gilbert also pointed to this example as being illustrative of his diagnosis.

[122] Second, Dr. Gilbert described two incidents from when Mr. Perreault was a young man as follows:

a) An incident in a swimming pool involving the quarterback of the high school football team, who had bullied Mr. Perreault, and who had splashed him and pulled his bathing suit down. Mr. Perreault was a good swimmer and took an opportunity for revenge by pulling the bully (who was not a good swimmer) down under the water and holding him there to within a few seconds of the bully’s life.

b) An incident involving an ex-girlfriend who had been callous towards Mr. Perreault during high school. Ten years after the relationship, which was short, ended, Mr. Perreault sought her out to point out that he was successful and she was not.

[123] Both incidents were acknowledged by Mr. Perreault in the course of his cross-examination. Both incidents support Dr. Gilbert’s diagnosis.

[124] Finally, Mr. Perreault’s reaction to being improperly arrested by Det. Luce is also consistent with his personality disorder. Mr. Perreault tried to figure out where Det. Luce lived and ended up focusing quite a bit on Det. Luce both in his actions and in his statements to other officers. Dr. Gilbert testified that Mr. Perreault’s behavior was consistent with the personality disorder.

[125] Dr. Gilbert also concluded that Mr. Perreault did not meet the diagnostic criteria for PTSD. Dr. Gilbert based this conclusion on the fact that, generally, people with PTSD avoid any kind of reminders of the things that happened. In Mr. Perreault’s case, however, he was preoccupied with police and seeking out further information about them. Again, Dr. Gilbert testified that this preoccupation was consistent with the personality disorder.

[126] Mr. Perreault cross-examined Dr. Gilbert and alleged that Dr. Gilbert had failed to note in his report that Mr. Perreault had “frozen” when he heard a police siren. Dr. Gilbert rejected this assertion, but agreed that Mr. Perreault was jumpy during the interview, and had been startled by a loud noise in the street during the interview. I accept Dr. Gilbert’s evidence on this point, as Dr. Gilbert’s observations were provided in a careful and detailed fashion and were made contemporaneously.

[127] In addition, Mr. Perreault put a number of symptoms to Dr. Gilbert and suggested that these symptoms were all indicative of PTSD. In some cases, Dr. Gilbert agreed that the symptom could be consistent with PTSD and in others he disagreed. However, Dr. Gilbert generally pointed out that the symptoms could be related to other psychological disorders and that PTSD can give rise to many symptoms that overlap with many other psychiatric diagnoses.

[128] Mr. Perreault also suggested to Dr. Gilbert that the events of January 25[DI(5] , 2005 were sufficiently traumatic that they could have caused PTSD. Dr. Gilbert agreed with that suggestion, but went on to state that, based on his examination, Mr. Perreault did not develop PTSD as a result of this incident. Dr. Gilbert also explained that, even after a violent incident, most people don’t develop PTSD. Instead, they have resilience and a gradual recovery from the event.

[129] I also note that Dr. Gilbert’s observations about Mr. Perreault being preoccupied with police fit entirely with what I observed during more than twenty-five hearing days. Specifically, as I have noted at paragraph 32, inter alia. Mr. Perreault is very focused on the alleged wrongdoings of police generally, and not just the Peel Police.

[130] Dr. Gilbert also noted that this focus on the police is consistent with the personality disorder that was diagnosed. This conclusion is further support for the diagnosis that Dr. Gilbert has reached. For the foregoing reasons, I accept Dr. Gilbert’s diagnosis of Mr. Perreault.

Conclusions on Medical Evidence

[131] For the foregoing reasons, I conclude the following about Mr. Perreault’s medical conditions:

a) There were no permanent physical effects of the tasering in 2005. I reach this conclusion because Dr. Dobkin said that Mr. Perreault had recovered prior to August 2005, there was no treatment between 2005 and 2008 and Mr. Perreault was able to work full time starting in 2007. There was also the intervening accident in 2008 where Mr. Perreault injured his right elbow.

b) Mr. Perreault does not suffer from Post-Traumatic Stress Disorder as a result of the tasering, or as a result of his involvement with the Peel Police between 2000 and 2005. In this respect, I accept Dr. Gilbert’s opinion. I also note that Mr. Perreault was referred to specialists at CAMH but chose not to produce their report or rely on their conclusions.

c) Mr. Perreault does have a personality disorder. This personality disorder has narcissistic, borderline and antisocial features.

d) Mr. Perreault has an ongoing problem with his right leg as a result of the 1992 [DI(6] motor vehicle accident.

[132] I should note that these conclusions about the medical conditions are set out before I have set out my review of the facts. However, my factual conclusions about what happened are informed, at least in part, by the fact that I have accepted Dr. Gilbert’s diagnosis of Mr. Perreault’s personality disorder.

The General Harassment Allegations

[133] The allegations of harassment begin in 2001 and run through to 2005. These allegations can be divided into a number of topics, as follows:

a) The Traffic tickets.

b) The June 2003 Incident.

c) The involvement of Det. Gorlick.

d) The October 2004 Incident.

e) Other issues.

f) The application of the law to my findings of fact.

[134] The harassment allegations are interrelated, but I will deal with them in these categories as that is the easiest way to explain the events and my findings about what happened in this case.

[135] I note that Mr. Perreault made a number of complaints about the conduct of the Peel Police through various complaints mechanisms. Nothing came of these complaints as they were viewed as unfounded. While I am sure that this was frustrating to Mr. Perreault, I did not see anything in the manner in which any of the complaints were handled to cause me any concern.

a) The Traffic Tickets

[136] In the late fall of 1999, Mr. Perreault bought the Eagle Talon that I have described above. Shortly thereafter, Mr. Perreault started to get traffic tickets. The Agreed Statement of Facts outlines the details of the various tickets that have been produced. It also outlines the fact that Mr. Perreault believes that he was acquitted on almost all of these tickets. There is little, if any, evidence to support Mr. Perreault’s assertion that he was in fact acquitted of these traffic charges.

[137] In addition to these tickets, Mr. Perreault says that he was regularly stopped by Peel Police officers, sometimes up to three times a night. In one incident, Mr. Perreault stated that the police officer who stopped him said “I wonder what I can get you with tonight.”

[138] Mr. Perreault also testified that he had been told by Derek Vammus that there was a photo of Mr. Perreault in the police station saying “for a good time pull this guy over.” Mr. Perreault questioned most of the officers who testified about the existence of that poster, but no one confirmed its existence. Mr. Perreault had not seen the poster directly, and no effort was made to call Mr. Vammus as a witness. I am not prepared to find that this poster actually existed.

[139] Jacques Perreault testified that he would see the police parked across the street from his house on Vodden Street on a regular basis. However, in cross-examination, Jacques Perreault acknowledged that their house is in a school zone. This suggests to me that the police may have been stationed there in order to catch speeders rather than for the purposes of surveillance on the Perreault family. Therefore, I am not prepared to infer any nefarious conduct on the part of the police by having a police cruiser near the Perreault Residence on Vodden Street.

[140] Essentially, Mr. Perreault is arguing that from the time his relationship with Ms. Hammond ended, he was targeted by the Peel Police through a series of traffic stops. In addition to the concerns I have set out above, I reject this evidence for the following reasons.

[141] First, Mr. Perreault only produced a total of seven tickets from the Peel Police throughout the period from November 1999 (when he purchased the Talon) through to September 2003. The remainder of the tickets were two from the Toronto Police Service and two from the Ontario Provincial Police. Given Mr. Perreault’s allegations of being stopped regularly, and of sometimes being stopped three times a night, I would have expected to see more tickets being written.

[142] Mr. Perreault also testified that, during the fall of 2003, he was in traffic court three times a week. I reject this evidence as I view it as a significant exaggeration and magnification of how often Mr. Perreault was in fact in court. There were only seven tickets from the Peel Police. The absence of any additional tickets strongly suggests that Mr. Perreault was not in court nearly as often as he said he was. There is no way that Mr. Perreault would have been in traffic court three times a week with the number of traffic tickets that were entered into evidence before me even if each ticket required more than one court appearance.

[143] Second, in his cross-examination, Mr. Perreault acknowledged that he could be non-cooperative with the police who stopped him. The following passage from his cross-examination is instructive:

Q. [Mr. Mazzuca] And you would agree with me that you would lash out at officers that stopped you for a traffic offence if you felt they were on a power trip?

A. [Mr. Perreault] I give as, as good as I get.

Q. So you would agree with that?

A. Yeah. And you’re telling me, you’re pulling me over because of what my car looks like?

Q. You told Officers Gorlick and Bowman when you were interviewed by them back in January 2004, that you are belligerent, loud and questioning to officers when you are stopped?

A. Well, I wouldn’t say belligerent, but I’ll definitely say loud and yes, I will question somebody who is trying to extort money from me. I mean at the end of the day, they have a gun. So there’s only so far I’m willing to go before I risk getting shot.

Q. I’m going to refresh your memory on the belligerent part. Page 198 of your examination for discovery on May 20, 2009. Question 1030.

A. May 21st?

Q. No, this is May 20th, 2009.

A. 189 you said.

Q. Yes, 198. You’re with me, okay.

“Question: Okay, for instance half way down it says, [and I’m referring to the occurrence report,] I believe, When interviewed stated he, that he is belligerent to the officers when stopped, loud and questioning.

Answer: Yes, if you don’t like the way I talk to you than don’t harass me.”

A. Well, like I said, I’m loud and questioning. I don’t agree with the belligerent.

Q. Okay, you didn’t....

A. And like I said, if you don’t like the way I talk to you then don’t harass me.

Q. Okay, and then I ask you at Question 1031:

“Question: So that seems like an accurate statement?

Answer: Probably, you know people that don’t like me, I don’t go out of my way to talk to them. I stay clear of them.”

A. Exactly, but they go out of their way to talk to me.

Q. Okay, but you’re now disagreeing that you were belligerent with the officers?

A. Well, can you describe to me what belligerent is?

Q. Swearing.

A. That could be anything. Like I’d be like, I think you’re an asshole.

Q. Yes.

A. So that’s belligerent?

Q. Yes.

A. All right, then I’d have to agree with that then. To me belligerent was, would be like you know, like racial slurs or things about a guy’s mother, or something like that, that to me would be belligerent.

Q. And you also told Officers Gorlick and Bowman in that interview in January of 2004 that you have an attitude and will be uncooperative with any police officer when stopped?

A. Do I have to cooperate with police?

Q. Is that accurate?

A. Do I have to cooperate with police?

Q. I’m not here to answer your questions, Your Honour.

A. I’m not asking you a question, I’m saying of course I’m not going to cooperate with police. Am I required by law to cooperate with police?

Q. Right.

A. Randy Norris, you know, sorted that out in our court.

Q. Right, but I’m asking....

A. I’m under no obligation to cooperate with police, am I?

[144] This passage illustrates that Mr. Perreault, in his words, “gave as good as he got”. From this, and the other comments in the passage, I infer that Mr. Perreault was belligerent and aggressive with police officers who stopped him almost from the moment that they approached his car.

[145] Third, Mr. Perreault appeared to have negative reactions to all of the police officers who stopped him. One of the tickets that was in evidence before me was issued in Wasaga Beach on May 17, 2003. It was for driving without a current validation on his plate and driving without a current validated permit. Mr. Perreault acknowledged that his license sticker had expired. In other words, the ticket was justified. Mr. Perreault’s reaction to receiving this ticket is an instructive example of how Mr. Perreault handled these incidents, partly because it involved a different police force.

[146] Mr. Perreault testified that there were two officers involved in the interaction. One officer said “c’mon we’ve got to be able to get him for something” and then the other officer banged the side of Mr. Perreault’s car. Mr. Perreault acknowledged that he “lost it” and got out of his car and started yelling at the officers. Mr. Perreault said that the officers then threatened to impound his car.

[147] The Wasaga Beach incident demonstrates that Mr. Perreault had difficulties interacting with the police regardless of the situation. The ticket was justified and Mr. Perreault was well aware of that fact before the altercation with the officers began. From this incident, I also conclude that Mr. Perreault was at least partly responsible for the manner in which the police dealt with him during these various traffic stops.

[148] Finally, this evidence about Mr. Perreault’s aggressive and belligerent behaviour towards police officers fits with Dr. Gilbert’s diagnosis of a personality disorder. In addition, Dr. Gilbert’s description of Mr. Perreault’s personality disorder also supports the conclusion that Mr. Perreault was exaggerating the extent of his problems with the police. I find that Mr. Perreault regularly exaggerated the extent of his problems with the police.

[149] This brings me to Mr. Perreault’s interactions with Mr. Mark Nicol, who was a former traffic prosecutor for the City of Brampton. Originally, Mr. Perreault intended to call Mr. Nicol as a witness in this case. However, the parties worked out a Supplemental Agreed Statement of Facts that meant that Mr. Nicol was not called.

[150] The facts relating to Mr. Nicol are peripheral. They deal with Mr. Nicol’s decision to vacate a couple of convictions that had been entered against Mr. Perreault for traffic tickets. Mr. Nicol’s employment with the City of Brampton ended shortly thereafter. However, on the Supplemental Agreed Statement of Facts, I do not see a causal connection between the two events.

[151] For the foregoing reasons, I reject Mr. Perreault’s assertion that the Peel Police were engaged in a campaign to stop his car and/or ticket him between 2000 and 2004.

b) The June 2003 Incident

[152] On June 25, 2003, in the very early morning hours, Det. David Luce[DI(7] was on his way home after completing his shift. At that time, he was a Peel Police officer but was off duty. He currently works for the Barrie Police Service. At the time of this incident, Det. Luce lived a couple of blocks from Mr. Perreault’s house in the north end of Brampton. They both lived in the same subdivision. By the end of Det. Luce’s interaction with Mr. Perreault, Mr. Perreault had been arrested and charged with possession of a weapon, mischief over $5,000 and trespass by night.

[153] There is a great deal of dispute over the events of this day. While I do not accept all of what Mr. Perreault said about this evening, I reject most of what Det. Luce said about the events of this day as I have found his testimony to be neither credible nor reliable.

[154] The reasons that I reject most of what Det. Luce said about that evening are, in summary, as follows:

a) Det. Luce was an argumentative and evasive witness.

b) Det. Luce’s explanation as to how he came to first see Mr. Perreault does not fit with the geography of the area.

c) Det. Luce’s evidence does not fit with the 911 call.

d) Det. Luce’s evidence does not fit with the evidence given by other officers on the scene.

[155] I have provided these reasons as a summary of the problems with Det. Luce’s credibility. I will address specific issues as I set out my summary of what happened. At the end, I will outline some specific additional issues that are not easily covered in my summary of events. In particular, Det. Luce’s argumentative and evasive testimony is best addressed separately at the end of this section by way of an example.

The Summary of Events

[156] At the time of these events, Mr. Perreault and Det. Luce lived in the same neighbourhood in North Brampton. The neighbourhood is bounded by Dixie Road on the west, Great Lakes Drive on the east and Peter Robertson Drive on the south end. The major street immediately to the north of the neighbourhood is Sandalwood Parkway.

[157] The streets in the neighbourhood generally run southeast-northwest or northeast-southwest although there are a few that are crescents. Det. Luce lived on Loon’s Call Crescent, which is in the Northwest corner of the subdivision. Mr. Perreault lived at 21 Smoothwater Street, which is two blocks southeast of Loon’s Call Crescent. The neighbourhood is accessed from Great Lakes Drive by Sailwind Road, which runs between Smoothwater Street. and Loon’s Call Crescent. There is a street in the middle of the subdivision, Canada Goose Boulevard, which runs northwest to southeast and bisects most of the other streets I will mention. Some of the streets change names when they cross Canada Goose Boulevard.

[158] Det. Luce testified that he saw someone walking along the footpath next to Sailwind Road at approximately 1:10 a.m. This person was allegedly dressed in dark clothing that was unusually heavy given that it was a warm night. Det. Luce also testified that this person was wearing gloves. Det. Luce viewed this clothing as suspicious, particularly given the weather outside, and decided to conduct surveillance on the individual in question.

[159] Det. Luce then testified that he lost sight of the person for approximately three minutes and then saw the person walking south on Smoothwater Street, which starts from Sailwind Road going southeast and then curves around to go northeast parallel to Sailwind Road Det Luce saw this person go up the drive at 21 Smoothwater Street and hide behind a Dodge Durango in the driveway. He then saw the same person leave the driveway at 21 Smoothwater Street and continue walking northeast on Smoothwater Street.

[160] It is at this point that the problems with Det. Luce’s evidence start to emerge. First, 21 Smoothwater Street is Mr. Perreault’s residence. There is no reasonable explanation as to why Mr. Perreault would be walking up to his driveway, skulking behind his own car in his own driveway and then walking away again. Second, Det. Luce then says that the same person he saw was then seen walking eastbound without gloves. The change in wardrobe at the precise moment that Det. Luce sees the person at 21 Smoothwater Street suggests that the person that Det. Luce sees is a different person from the one he saw earlier.

[161] Throughout his testimony, however, Det. Luce insisted that Mr. Perreault was the person walking along Sailwind Road. Given that it was dark outside, and that Det. Luce had only been able to see this person from a distance, I found it both surprising and troubling that Det. Luce was so firm in his conclusion that the person he had seen on Sailwind Road was Mr. Perreault. Det. Luce’s unwillingness to concede that he might have been mistaken raises issues about both the credibility and reliability of his evidence.

[162] Based on these problems with Det. Luce’s evidence, there are only two conclusions that I can reach. I could conclude that he either did not see someone walking along the footpath near Sailwind Road or I could conclude that he did see a person walking up the footpath but lost sight of that person shortly after seeing them, and then ended up seeing a different person. In other words, the person that Det. Luce saw after 21 Smoothwater Street is not the same person he saw on Sailwind Road

[163] I conclude that Det. Luce did see someone walking along the path next to Sailwind Road. Otherwise, there would have been no reason for Det. Luce to have driven down Smoothwater Street. His direct route home would not have taken him along Smoothwater Street at all. However, for the reasons that I have set out at paragraph 160, the person that Det. Luce saw at and after 21 Smoothwater Street is not the same person he saw on Sailwind Road.

[164] In any event, I find that Mr. Perreault left his house and began to walk east on Smoothwater Street. Mr. Perreault’s testimony was that he was going to the Tim Horton’s at Dixie Road and Peter Robertson Drive to hang out with some friends. Indeed, not only was this evidence uncontroverted, but Det. James Kettles testified both that it was a regular event for people to hang out at this Tim Hortons in the late evening and that Det. Kettles had done the same thing when he was younger. In other words, I accept Mr. Perreault’s explanation as to where he was going that evening and why.

[165] Mr. Perreault was walking eastbound on Smoothwater St. and had just reached Canada Goose Boulevard when he saw an SUV cruising slowly past him. Det. Luce did testify that he drove around the neighbourhood searching for the person he had seen at 21 Smoothwater Street. Mr. Perreault was becoming concerned about this vehicle as he had seen it several times. As a result, Mr. Perreault decided to walk over to Morningmist Street and use the pass through (a foot path) to get to the Tim Hortons rather than walking down Canada Goose Boulevard to Peter Robinson Drive.

[166] Both parties agree that after Mr. Perreault was walking down Morningmist St., Det. Luce’s car was approaching. Based on the geography of the situation, I find that Det. Luce was proceeding northwest on Morningmist St. when he stopped his car. Det. Luce got out of his car just south of the corner of Morningmist St. and Streamside Lane. In his testimony, Det. Luce focused on the fact that he identified himself as a police officer when he got out of his car.

[167] However, I had the audio recording of the 911 call as well as two transcripts made from the 911 call that were entered as evidence. One version was prepared by Mr. Perreault and the other by counsel for the Peel Police. The differences between the two transcripts are immaterial to the issues I have to decide. On all versions, the first words out of Det. Luce’s mouth were “show me your hands”. It was only after Mr. Perreault asked that Det. Luce confirmed he was a police officer.

[168] Further, Det. Luce told Mr. Perreault to put his hands in the air three times. After the third time that Det. Luce told Mr. Perreault to put his hands in the air, Mr. Perreault asked to see Det. Luce’s I.D. There is no indication from the 911 call that Det. Luce ever responded verbally to Mr. Perreault’s request to see his ID. If Det. Lue had taken his I.D. out already as he testified he did, I would have expected him to point that fact out to Mr. Perreault. As a result, I conclude that Det. Luce did not take his badge out. There was also no other way for Mr. Perreault to know that Det. Luce was a police officer as Det. Luce was in plainclothes and was driving a surveillance vehicle which was an unmarked Mazda Tribute.

[169] Det. Luce also testified that Mr. Perreault should have been able to see Det. Luce’s badge from where he was, more than thirty feet away. This is another problem with Det. Luce’s evidence. Even if the badge was displayed (and I have found that it was not), it is not reasonable to expect someone to see a badge from thirty feet or more away at 1:15 a.m. in streetlights.

[170] At this point, Mr. Perreault decides to run away from Det. Luce. Mr. Perreault went down Streamside Lane and hid behind a car in a driveway at either 18 or 20 Streamside Lane. As Mr. Perreault ran away, Det. Luce stated that Mr. Perreault discarded a metal object onto a front lawn in the area of 20 Streamside Lane. I will return to the question of whether this object existed below.

[171] Det. Luce gave chase. At this point, Det Luce was joined by two other Peel Police officers, who were in uniform and had arrived in a marked patrol car. These were Cst. Julie Pachnosky (now Marshall, but I will refer to her by her surname at the time of the incident) and Cst. Lorna Szabo. Both Cst. Pachnosky and Cst. Szabo [DI(8] testified before me.

[172] The testimony from both Csts. Pachnosky and Szabo was that they followed Det. Luce up one of the driveways. There was testimony that Det. Luce had yelled that Mr. Perreault had gone into the backyard of one of the residences on the street. Cst. Pachnosky testified that she was behind both Det. Luce and Cst. Sazbo, and that Cst. Szabo was near one of the gates on the house.

[173] Cst. Szabo testified that she came up to the gate between 16/18 Streamside Lane, but she did not see Det. Luce anywhere near the gate. I reject this evidence because it is inconsistent with Cst. Pachnosky’s evidence and because it was inconsistent with the pursuit that the officers were engaged in. it is unlikely that Cst. Szabo had lost contact with Det. Luce when they were all headed in the same direction.

[174] From all of the circumstances, I conclude that Det. Luce was in front. It is also clear from Cst. Szabo that she actually reached the gate and discovered, by touching it, that the gate was damaged. Cst. Pachnosky testified that Cst. Szabo was “near the gate” at the residence where they ran up the driveway. Finally, Cst. Pachnosky testified that, shortly after she and Cst. Szabo arrived on the scene, Det. Luce yelled “he went into the backyard”.

[175] Det. Luce originally denied going into a backyard on Streamside Lane. When he was confronted with Cst. Pachnosky’s testimony from the criminal trial, Det. Luce appeared to change his evidence to being that he “did not recall” whether he went into a backyard. Then, subsequently in his cross-examination, Det. Luce changed his story back to a claim that he did not go into a backyard.

[176] As the officers ran up this driveway, Mr. Perreault took the opportunity to run back out onto the street and along Streamside Lane towards Canada Goose Boulevard. At that point, Officer Szabo spotted Mr. Perreault and gave chase, as did Officer Pachnosky. When the two uniformed officers yelled “police stop” at Mr. Perreault, he complied and he was arrested.

[177] In her evidence, Cst. Pachnosky testified that she was not a fast runner. In addition, as set out above, Mr. Perreault has a leg injury from his 1992 [DI(9] MVA that prevents him from running quickly. As a result, I accept Mr. Perreault’s evidence that he was hiding behind a car in a driveway and was NOT in a backyard at any time. Mr. Perreault’s leg injury would have prevented him from going into one backyard, coming out another backyard and being back on the street by the time that Cst. Pachnosky spotted him proceeding down Streamside Lane.

[178] At this point, I should pause and note that one of the offences that Mr. Perreault was charged with as a result of the events on June 25, 2003 was a mischief charge for damaging a gate on Streamside Lane. However, I have concluded that Mr. Perreault did not actually go into any of the backyards on Streamside Lane.

[179] Based on the descriptions provided by Mr. Perreault and Csts. Pachnovsky and Szabo, I conclude that Det. Luce DID go into one of the backyards on Streamside Lane. I reject his denial that he went into a backyard because his evidence changed and because Det. Luce’s denials do not fit with the rest of the evidence I heard. In particular, all three officers were chasing Mr. Perreault towards a backyard, Det. Luce was in the lead and Cst. Szabo reached the gate. As a result, if Det. Luce was in the lead and the second officer reached the gate, it is likely Det. Luce went through the gate. From this conclusion, it follows that, if a gate on Streamside Lane was damaged as a result of this incident, the damage was caused by Det. Luce and not by Mr. Perreault.

[180] This brings me to Mr. Perreault’s apprehension. He was arrested by Cst. Pachnosky and Cst. Szabo right at the corner of Streamside Lane and Canada Goose Boulevard.

[181] Det. Luce’s testimony before me was clear that he did not actually attend at the corner of Canada Goose Boulevard and Streamside Lane. On one occasion, he testified that he did not recall whether he went there or not, but when cross-examined in detail on this point, Det. Luce was adamant that he had stayed near where the knife had been dropped and did not go more than a couple of houses away from 18 Streamside. The map entered into evidence shows that there were almost ten houses between 18 Streamside and the corner where Mr. Perreault was apprehended.

[182] The problem with Det. Luce’s evidence on this point is that it is contradicted by both the evidence of Cst. Pachnosky and by the 911 call. Cst. Pachnosky was clear in her testimony that Det. Luce attended at Streamside Lane and Canada Goose Boulevard for the arrest. Further, all versions of the 911 call make it clear that Det. Luce told dispatch that they had apprehended Mr. Perreault and that “we’re at Streamside and Canada Goose now.” This last statement clearly suggests that Det. Luce was at Streamside and Canada Goose. I would also note that Cst. Szabo testified that Det. Luce was in the area where the apprehension was made.

[183] The reason that this contradiction is important is because of the knife. Det. Luce testified that he had seen Mr. Perreault discard a metallic object on the front lawn of a house on Streamside. Det. Luce testified that he went back up Streamside Lane in order to try and find this object. Det. Luce was able to find what turned out to be a seven inch parachute knife in the dark on a lawn.

[184] Mr. Perreault was not immediately charged with possession of this knife. In fact, it was not until Mr. Perreault was en route to the police station that the arresting officers became aware that there was a knife that had been found on Mr. Perreault.

[185] Based on the knife, the damage to the gate and the other events, Mr. Perreault was charged with trespass at night, carrying a concealed weapon and mischief over $5,000. These charges were taken to trial. Mr. Perreault was acquitted of these charges by MacDonnell J. I will address his reasons below, and I have already set out my views about the damage to the gate.

[186] This brings me back to the knife. It was tested for fingerprints prior to the criminal trial and there were no fingerprints on it at all in spite of the fact that Mr. Perreault was not wearing gloves when Mr. Perreault allegedly dropped it. This lack of fingerprints, combined with the other issues with Det. Luce’s credibility have convinced me that, on a balance of probabilities, Mr. Perreault never had the knife. Instead, Det. Luce planted the knife as evidence. In support of this conclusion, I also note Mr. Perreault’s evidence that he was simply going out to the Tim Horton’s in the neighbourhood. There was no explanation offered by the Peel Police as to why Mr. Perreault would have had a knife for this trip.

[187] Finally, for clarity, my conclusions about the knife are also based on Det. Luce’s evidence that he remained in the area of 18 Streamside rather than going to the other end of the street where the arrest took place. I have rejected that evidence. Therefore, I am rejecting Det. Luce’s evidence that he immediately looked for the knife.

[188] On this last point, I also note that Mr. Perreault was not immediately charged with the knife offence. These charges were laid more than half an hour after his initial arrest. The timing of the charges also supports my conclusion that Det. Luce attended at the scene of the arrest and then went back to find the knife.

[189] Even on that point, however, there are problems with Det. Luce’s evidence. At the criminal trial before MacDonnell J. and in his testimony before me, Det. Luce stated that he found the knife within five minutes. However, the other investigating officers were not aware of Det. Luce’s retrieval of the knife for closer to half an hour. This discrepancy is further support for my conclusion that the knife was planted by Det. Luce.

[190] This is a very strong conclusion to reach. I would be remiss if I did not say that it applies only to Det. Luce. I found most of what Csts. Pachnosky and Szabo had to say to be credible, and where I have rejected their evidence I did so on the basis of reliability rather than credibility. I see nothing on the record that would convince me that either of these officers were involved in any way in the planting of the knife and nothing that would suggest that there was an institutional involvement in planting the knife on the part of the Peel Police.

[191] Finally, I should deal with a couple of other points about Mr. Perreault’s arrest that evening:

a) Mr. Perreault states that an officer told him to “shut the fuck up or the police would beat the crap out of him.” All of the officers denied either making or hearing this statement. I am not persuaded that this statement was made. As I have outlined in other places in this decision, Mr. Perreault has a tendency to exaggerate the wrongs that have been done to him, including by providing the Court with inaccurate evidence. This is another one of these occasions.

b) Mr. Perreault complained about the way he was treated by Csts. Szabo and Pachnosky. In particular, he complained that when he asked what he had been arrested for, they ignored him and turned up the radio, which was playing Q107. I reject this evidence for two reasons. First, Mr. Perreault has, as I have discussed, a tendency to exaggerate the wrongs that have allegedly been done to him. Second, at least one of the constables testified that she did not even like Q107, so it is unlikely it was playing in the police car.

c) There is the issue of the strip search, which I have already dealt with above.

d) Mr. Perreault testified that he was interviewed twice on this occasion and that the video of the first interview is missing. I find that only one interview took place that night. Mr. Perreault’s claim that a second interview took place is not supported by any of the other evidence that I heard.

[192] I will return to the effect of my findings about the events of June 3, 2003 on Mr. Perreault’s claim of harassment shortly.

Additional Specific Problems With Det. Luce’s Credibility

[193] To start with, I note that Det. Luce’s cross-examination was particularly difficult. Part of the reason for that was that Det. Luce had difficulty answering Mr. Perreault’s questions. Instead of providing answers, Det. Luce wanted to provide what can best be described as key messages.

[194] One passage from Det. Luce’s cross-examination will illustrate the problems:

Q. Well, I mean you’re angry, you’re, you know, you don’t have your gun with you. You’ve got a knife. I mean you think maybe this night could have gone differently for both of us if you had just simply stepped out of your vehicle and said, oh, hey, you know what, you know, my name is this. I’m--you know, I’m a constable, can I talk to you for second. Do you think that night could have gone differently?

[195] A. That’s speculation, Mr. Perreault, and I can’t speculate how it could or could not have gone. I certainly wish it didn’t even get to that point absolutely, to the fact that you had a knife on your person at 1:10 in the morning in a residential neighbourhood wearing all dark clothing. It certainly was very suspicious to me, Mr. Perreault, and I certainly wish you didn’t trespass onto people’s property in, in the neighbourhood. And I certainly wish you didn’t try to flee from the police after they identified themselves as such. It could have gone very differently, you’re right.There are numerous other passages like this. Det. Luce may have been correct to say that the question was speculative. However, he used the opportunity to set out his views of the case without actually answering the direct question that had been posed to him which was, in essence, if Det. Luce had taken a less confrontational approach would things have turned out differently. I found this evidence to be evasive and unhelpful.

[196] This passage also illustrates another problem with Det. Luce’s evidence. Even though he was testifying about the events fifteen years after the fact he was very sure that it was Mr. Perreault walking along Sailwind Road and he was very sure that Mr. Perreault was carrying a knife. I have already set out my views on this evidence. However, when confronted about other events, such as what he said to dispatch, how many officers were present and the like, Det. Luce tended to say that he could not recall because the events had happened such a long time ago. Det. Luce’s unwillingness to concede that he might have been mistaken about other aspects of events fifteen years ago combined with his very firm memory of the facts that helped his case and the absence of memory about the other facts raised concerns about both his credibility and his reliability for me. These concerns are in addition to the ones I have set out above.

The Decision of MacDonnell J.

[197] The allegations against Mr. Perreault were taken to trial in December 2014 in the Provincial Court. Mr. Perreault was acquitted of all charges against him. The decision of MacDonnell J. was referred to by the parties in the course of the hearing. The question is what evidentiary value, if any, this decision has.

[198] This decision was the subject of testimony from Mr. Randy Norris, who was Mr. Perreault’s counsel on these charges. It was also referenced in the evidence of the parties. I am of the view that these reasons are not something that I should take into account in reaching my own conclusions about this matter. The issues in the cases are different, the standards to be applied are different and the evidence called in each case is different.

[199] I do note, however, that Mr. Norris testified that the allegations that were made at trial by the defence were that the knife was planted on Mr. Perreault by Det. Luce. I will return to this fact below.

Spoliation

[200] The knife that was found was not Mr. Perreault’s knife. Instead, it was a knife that Det. Luce had in his possession that he claimed that Mr. Perreault was carrying. The knife was in evidence at the criminal trial and had been fingerprinted. No fingerprints were found on the knife.

[201] However, the knife was destroyed in 2012 as part of a records retention policy. Originally, I had heard evidence from Cst. Pachnosky about the destruction of the knife and records related to its destruction were entered through her. However, during the course of the case, I advised Mr. Mazzuca that I viewed the destruction of the knife as a sufficiently serious issue that I was permitting Mr. Mazzuca to call the officer who had made the decision to destroy the knife.

[202] As a result, Mr. Mazzuca called Det. Jason Kirkpatrick, who was employed by Peel Police from 1995 to 2017. He had responsibility for the Peel Police’s civil litigation files between 2011 and 2013. In September 2012, Det. Kirkpatrick received an email from the coordinator of evidentiary property. The email chain I was provided with confirmed that the knife had been ordered to be retained by the previous coordinator of civil litigation.

[203] In the email chain, Det. Kirkpatrick stated “The case is still open, [sic] I however don’t see the need to keep the knife. I am sure we have pictures of the knife somewhere with the officers.” It turned out that there were not pictures of the knife anywhere. Det. Kirkpatrick did not check to see whether there were any pictures of the knife.

[204] In his examination, Det. Kirkpatrick analogized his decision to destroy the knife as being similar to a case where the police would not keep a police cruiser that was involved in an accident. I do not accept this analogy for two reasons. First, if a police cruiser was involved in an accident and then subsequently destroyed, I expect that photographs would have been taken first and that the civil litigation coordinator would have checked to confirm that the pictures had been taken. In this case, it is particularly troubling that Det. Kirkpatrick did not know or bother to check to see if photographs existed because the disclosure in this case was something that he would have reviewed and would have had access to.

[205] Second, the knife is a very small item, while the police cruiser is very large. The burden to the Peel Police in keeping the knife would have been limited, especially since the action was still ongoing. There is no real explanation for why it had to be destroyed in the middle of the action, especially since the previous litigation coordinator had ordered it be kept.

[206] This brings me to Det. Kirkpatrick’s statement that he was not aware that there was an allegation that the knife had been planted on Mr. Perreault. Given the way that this case has developed, I accept this explanation. This case has taken a long time to come to trial, and the allegations that have been brought forward have been somewhat amorphous. Even though the allegation of planting the knife was raised at the criminal trial, this does not mean it was raised as part of the civil action.

[207] Finally, during cross-examination, Mr. Perreault confirmed that Det. Kirkpatrick had been investigated previously. However, the details of that investigation were not explained in evidence. Therefore, I cannot take anything from the bald statement that Det. Kirkpatrick had been investigated previously.

[208] Mr. Perreault argues that the knife could have been examined to see whether it had a serial number or other marking that would have identified either where it was purchased or, perhaps, who it belonged to. I accept this argument. However, I would also note two points. First, the knife was tested for fingerprints and it was found not to have fingerprints. Second, the knife was in evidence at the criminal trial. As a result, we have considerable information about the knife. That information has already been used in aid of Mr. Perreault’s case. In any event, no requests were made by the Plaintiff or his counsel to examine the knife at any point between 2006 and 2012.

[209] I have concerns about the explanation that Det. Kirkpatrick provided. However, I do not have to resolve the question as to whether Det. Kirkpatrick destroyed the knife intentionally. Its destruction did not (and does not) affect the outcome of the case. I have already concluded that the knife was planted by Det. Luce and was not Mr. Perreault’s knife. I have based that conclusion on, inter alia, the fact that the knife did not have any fingerprints on it in spite of the fact that Mr. Perreault was not wearing gloves when he allegedly dropped the knife.

c) The Involvement of Det. Gorlick

[210] After the June 2003 incident, Mr. Perreault was released on bail. He received a couple of additional traffic tickets and continued to fight those tickets in court. On January 7, 2004, Mr. Perreault testified that he was twelve minutes late for court and was convicted in absentia. Mr. Perreault was upset with this conviction and called the general number for Peel Police’s 22 division. Mr. Perreault spoke to Cst. Brian Moore, who was a new officer.

[211] Mr. Perreault advised Cst. Moore that he was tired of white male police officers harassing him. Mr. Perreault further advised Cst. Moore that if he did not get the opportunity to speak to a high-ranking officer, Mr. Perreault would take matters into his own hands. When asked what this meant, Mr. Perreault responded that this would be a “suicide mission”.

[212] Mr. Perreault also advised Cst. Moore that he had followed a bunch of Peel Police officers home, and that “if I don’t get a meeting with two senior ranking officers by the end of the week a white male cop has died by my hands”. Based on those statements, Cst. Moore referred the matter to Detective Geoffrey Gorlick.

[213] I should note that Mr. Perreault gave inconsistent evidence between his discovery and trial as to whether he was prepared to carry these threats out. At discovery, Mr. Perreault suggested that he would carry these threats out, while at trial he suggested he wouldn’t carry these threats out. This inconsistency supports my general conclusion that Mr. Perreault had a tendency to modify his evidence to make himself look better, depending on the circumstances.

[214] Mr. Perreault was invited down to the station and interviewed the next day by Det. Gorlick and a Detective Bowman. Det. Gorlick testified before me; Det. Bowman did not. The meeting was videotaped, but the videotape has been lost.

[215] Det. Gorlick is now retired. He had been a Peel Police officer for thirty three and a half years before he retired. At the time of this incident, he was a detective in the Criminal Investigations Bureau. Det. Gorlick testified that he was prepared to consider charging Mr. Perreault with offences based on the interaction with Cst. Moore. However, Det. Gorlick was able to settle Mr. Perreault down. Therefore, Det. Gorlick decided not to charge Mr. Perreault.

[216] Det. Gorlick remained in contact with Mr. Perreault over the next several months. None of these contacts seemed to be of any significance. However, it is an agreed fact that between January 8, 2004 and October 18, 2004 Mr. Perreault did not have any problems with the Peel Police.

[217] There is also the question of the missing videotape, which I listed as one of the missing pieces of evidence in the discussion of spoliation. Det. Gorlick testified that Mr. Perreault was not an accused and that, therefore, the videotape was not logged. As a result, it was not kept and has been lost. I accept this explanation and am of the view that the test for spoliation with respect to this evidence is not met. There was no intent to destroy this evidence to affect the outcome of the case. I would also note that, since there was general agreement between Mr. Perreault and Det. Gorlick as to what happened in this meeting, it would be difficult to see how the missing videotape would have affected my factual conclusions in any event.

d) The October 2004 Incident

[218] The October 2004 charges resulted from a request by then-Cst. Chhinzer for a sample of Mr. Perreault’s DNA for an ongoing sexual crime investigation.

[219] In the summer of 2004, I understand that the Peel Police were investigating the possibility of a serial rapist or some other sort of serial sexual offender. For reasons that were not explained to me in any satisfactory way, Mr. Perreault was identified as a suspect in this sexual offence case. The fact that there was no satisfactory explanation as to why Mr. Perreault had become a suspect could raise concerns about the good faith of the officers investigating this matter. It must be remembered that this incident took place just over a year after I found that Det. Luce had deliberately planted evidence of a crime on Mr. Perreault. It is in this context that the events of October 18 2004 must be assessed.

[220] That being said, there was no evidence that Cst. Chhinzer either knew about the charges that Mr. Perreault had been facing or had any knowledge of Det. Luce or the issues with respect to Det. Luce’s arrest of Mr. Perreault. It must be remembered that the request for DNA came before the disposition of the charges relating to Mr. Perreault’s 2003 arrest. Indeed, Cst. Chhinzer did not seem to know anything at all about Mr. Perreault when Cst. Chhinzer was tasked with trying to obtain Mr. Perreault’s DNA sample.

[221] In addition, Cst. Chhinzer (and other officers, including Det. Kettles) testified that the task force that had been assembled to look for this sexual predator had been casting a wide net. Indeed, at the time Cst. Chhinzer had temporarily been assigned to the Child Assault and Sexual Abuse unit to assist with this investigation. Mr. Perreault was not the only person that Cst. Chhinzer was tasked to contact to obtain a DNA sample from. As a result, although Mr. Perreault’s inclusion on the list of people that the task force wanted DNA from was not completely explained, I accept that it was not done in bad faith.

[222] This brings me to the incident itself. In October 2004, Mr. Perreault was at home one evening when he was contacted by then-Cst. Chhinzer, who was asked to obtain a DNA sample from Mr. Perreault. The evidence I heard made it clear that this contact took place on October 18, 2004. Mr. Perreault originally thought that Cst. Chhinzer was one of his friends pulling a prank. As a result, when Cst. Chhinzer first telephoned, Mr. Perreault told him that he was busy and that Cst. Chhinzer should telephone later.

[223] There is a dispute between Mr. Perreault and Cst. Chhinzer as to how many telephone calls were made. Mr. Perreault says that there were seven separate telephone calls made, while Cst. Chhinzer says that there were only four telephone calls that were made.

[224] There is no dispute between Mr. Perreault and Cst. Chhinzer that Cst. Chhinzer called Mr. Perreault back. It was suggested to Mr. Perreault in cross-examination that Mr. Perreault made threatening comments, such as Mr. Perreault “did not want to be the next Timothy McVeigh”, during the course of this second telephone call.

[225] I reject that suggestion, as both parties agreed that Mr. Perreault told Cst. Chhinzer to contact Det. Gorlick. Given the ongoing involvement of Det. Gorlick with Mr. Perreault, I infer that Mr. Perreault would have wanted to get Cst. Chhinzer to stop bothering him by having Cst. Chhinzer talk to Det. Gorlick. Therefore, there would not have been any need, in Mr. Perreault’s mind, for this type of comment at that point.

[226] Cst. Chhinzer called Det. Gorlick and confirmed that they were looking for a DNA sample. Det. Gorlick called Mr. Perreault and left a message. Mr. Perreault called Det. Gorlick back a few minutes later, and Det. Gorlick outlined what was being sought. Mr. Perreault advised that he was not prepared to provide a DNA sample, but that his legal advisor had told him that he could participate in a photo line-up. Det. Gorlick then called Cst. Chhinzer and advised him that Mr. Perreault was not prepared to provide a DNA sample.

[227] Cst. Chhinzer testified that he tried to call Mr. Perreault’s lawyer to arrange for the photo line-up. Cst. Chhinzer left a message, and then called Mr. Perreault for a third time. Cst. Chhinzer testified that, in that phone call, Mr. Perreault offered to speak to Cst. Chhinzer and his partner through the front door of his house. As a result, Cst. Chhinzer went to Mr. Perreault’s house.

[228] Mr. Perreault denies that he ever invited Cst. Chhinzer over to his house to discuss the matter through the front door. On this point, I accept Mr. Perreault’s evidence and reject that of Cst. Chhinzer for the following reasons:

a) Cst. Chhinzer’s evidence of being invited over to Mr. Perreault’s residence is not consistent with either Mr. Perreault’s desire NOT to provide a DNA sample or Mr. Perreault’s past interactions with the police.

b) Cst. Chhinzer’s evidence is not consistent with the conversation that he had with Det. Gorlick, or with Det. Gorlick’s involvement with Mr. Perreault. It is clear that Mr. Perreault did not want to participate in providing a DNA sample.

c) Cst. Chhinzer’s evidence that he was invited to visit Mr. Perreault’s house is inconsistent with his acknowledgement that he called Mr. Perreault back after not being able to contact his lawyer because he wanted to resolve the matter. It was clear even from his own evidence that Cst. Chhinzer wanted the DNA sample that evening and was going to continue to push to obtain that evidence.

[229] Therefore, I find that Cst. Chhinzer visited Mr. Perreault’s house uninvited on the evening of October 18, 2004. When Cst. Chhinzer arrived at Mr. Perreault’s residence, a verbal confrontation ensued. In the course of that confrontation, Mr. Perreault told Cst. Chhinzer, among other things, that he was tired of being harassed by the Peel Police and that one day there would be Mr. Perreault’s body and dead white Peel Police officers next to him if the harassment continued. Cst. Chhinzer told Mr. Perreault that he viewed these comments as threatening.

[230] The next day, Cst. Chhinzer and his partner returned to Mr. Perreault’s house and charged him with uttering death threats. The reason that Cst. Chhinzer had decided to lay charges was because he had reviewed Mr. Perreault’s record and seen other threatening comments and other issues in Mr. Perreault’s interactions with the police.

[231] In addition, when Mr. Perreault was arrested, Cst. Chhinzer found a knife in Mr. Perreault’s possession and charged him with possession of a prohibited weapon. This charge flowed from Cst. Chhinzer’s claim that the knife could be opened with centrifugal force.

[232] An interview was conducted of Mr. Perreault when he was arrested. During that interview, Mr. Perreault made a number of additional statements that could also have been taken as threatening against the Peel Police

[233] Mr. Perreault was held overnight for this charge. He was released on bail the next day, although bail was opposed by the Crown. In the course of his submissions, Mr. Perreault has raised the issue that the Crown took an unreasonable position on his bail application based, inter alia, on Mr. Perreault’s license plate. I am not going to consider that issue as the Crown is a separate entity who is not part of Mr. Perreault’s claim against the Peel Police. The positions that the Crown took are not actionable in this claim.

[234] On March 15, 2005, Mr. Perreault pled guilty to the charge of uttering death threats. The weapons charge was withdrawn. Mr. Perreault states that the knife was not a prohibited weapon. I accept this evidence as there is no evidence to contradict it.

[235] I have been critical of Cst. Chhinzer’s overzealousness in attempting to obtain the DNA sample from Mr. Perreault. However, that does not change the fact that Mr. Perreault was (and is) guilty of having uttered death threats. Mr. Perreault acknowledged his guilt by his plea, and it is not open to him to re-litigate that issue in this proceeding. See Toronto (City) v. C.U.P.E., Local 79 and Andreadis v. Pinto (2009), 2009 50220 (ON SC), 98 O.R. (3d) 701.

[236] I should also briefly deal with Mr. Perreault’s assertion in his first set of closing submissions that this incident was another way for the Peel Police to harass and bankrupt him. This assertion is unsupported by the evidence. Cst. Chhinzer did not know either Det. Luce or Mr. Perreault. In addition, Cst. Chhinzer was legitimately seeking information from Mr. Perreault. The fact that Cst. Chhinzer was overzealous in the pursuit of that information does not mean that he was doing anything harassing to Mr. Perreault. In any event, however, Mr. Perreault was charged (and found guilty) of uttering death threats because of his own conduct. It is no answer for Mr. Perreault to blame the charges on someone else. It is Mr. Perreault’s own words that got him charged and convicted.

Spoliation

[237] There are two issues relating to potential spoliation that arise in this case. First, there are the cellphone records for the cellphone that Cst. Chhinzer was using that night. Mr. Perreault has been asking for those records for a long time, and they have not been produced. I accept the explanation from Cst. Chhinzer that he was using a cellphone that was part of a group of cellphones and he could not identify which phone it was. I also accept his explanation that the first request was made several years after the incident and, therefore, the phone could not be identified.

[238] This brings me to the knife that was allegedly a flick knife. It was sent for destruction on June 29, 2015 after the disposition of the criminal trial and before the commencement of the litigation in this case. As a result, the principle of spoliation does not apply. Given that Cst. Chhinzer did not know a claim was coming, there is no way for him to have intentionally destroyed the evidence to affect the outcome of the criminal trial.

e) Other Issues

[239] Between October 18, 2004 and 2008, the only other issues involving Mr. Perreault and the Peel Police were the search of his house in January 2005 and an incident at the Tim Horton’s in April 2005. The incident at the Tim Hortons is discussed in a subsequent section. For the reasons set out in that section, I have determined that the Peel Police did nothing wrong in that incident.

[240] Mr. Perreault also raised an allegation about an event in May 2005. Mr. Perreault testified that he was at the Tim Horton’s at Dixie and Peter Robertson in May 2005 when one of the officers who had tasered him approached Mr. Perreault. According to Mr. Perreault’s testimony, the officer asked if Mr. Perreault recognize him. Mr. Perreault testified that he did recognize this officer because of his voice. Mr. Perreault confirmed it was one of the officers who had tasered him. Mr. Perreault also testified that the officer stated that Mr. Perreault was lucky to be alive and that “I like killing pieces of shit like you.”

[241] Cst. Gregory Amoroso [DI(10] and Sgt. Auden Whyte were the two officers who had been issued tasers that night. Both officers denied making this statement, and Mr. Perreault seemed to accept in his cross-examination that neither of the officers were the person he saw at the Tim Hortons.

[242] Given that the only two officers who were issued tasers were Cst. Amoroso and Sgt. Whyte, I find that this conversation did not take place. Instead, this is another example of Mr. Perreault embellishing the story to make himself appear to be more of a victim.

[243] In addition, Mr. Perreault has raised issues that arose after 2008. For the reasons given elsewhere in this decision I have determined that those are not issues that I am inquiring into or resolving in this claim or through this decision.

f) Application of The Law

[244] The claim being advanced by Mr. Perreault is one of harassment. The Statement of Claim says that Mr. Perreault’s claim is for assault, battery and harassment. The assault and battery relates to the January 24, 2005 incident. The harassment allegations relate to the series of events between 2000 and 2005.

[245] The Ontario Court of Appeal has recently addressed the issue of whether the tort of harassment exists in Ontario. Some history about this law is necessary in order to understand my conclusions on what should be done with Mr. Perreault’s claim of harassment.

[246] In the 2017 decision of Merrifield v. The Attorney General, 2017 ONSC 1333, 42 C.C.L.T. (4th) 4, Vallee J. of this Court found that the tort of harassment existed in the law of Ontario. This finding was based on, inter alia, the decisions of this Court in McHale v. Ontario, 2014 ONSC 5179, and McIntomney v. Evangelista Estate, 2015 ONSC 1419. Vallee J.’s analysis is set out at paragraphs 711-718 of the Merrifield decision. At the time that this matter went to trial, the Merrifield decision was under appeal but had not been reversed.

[247] It was not until March 15, 2019 that the Court of Appeal released its reasons in Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494 [Merrifield ONCA]. That decision is the first time that an appellate court in Canada had the opportunity to consider whether the tort of harassment exists at common law. The Court determined that the tort of harassment did not exist in Ontario and that claims of this type should be considered as claims of intentional infliction of mental suffering.

[248] The Peel Police argue that I should not consider the tort of intentional infliction of mental suffering because Mr. Perreault did not plead this tort and is out of time to advance it. In support of this position, the Peel Police rely on Gowanbrae Realty Developments Ltd. V. McLean-Peister Ltd. 2005 CarswellOnt 7277. Given the uncertainty in the law that existed at the time of trial, I am of the view that this issue should be dealt with on the merits.

[249] The test for intentional infliction of mental suffering was originally set out in Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474, at para. 43, and was repeated in Merrifield ONCA, at para. 45. That test requires the following conditions to be met:

a) The Defendant must have engaged in conduct that is flagrant and outrageous.

b) This conduct must be calculated to do harm.

c) The conduct must result in a visible and provable injury.

[250] In this case, there was no inappropriate conduct on the part of the police with the traffic tickets. Det. Chhinzer’s pursuit of the DNA may have been overzealous but was clearly not flagrant or outrageous. Finally, there was no pattern of harassment on the part of the Peel Police against Mr. Perreault. Indeed, Det. Gorlick and Det. Kettles attempted to work with Mr. Perreault to mitigate the situation. None of these events, individually or collectively, amount to either flagrant or outrageous conduct or conduct that was intended to harm Mr. Perreault. Indeed, Dets. Gorlick and Kettles were trying to help Mr. Perreault.

[251] The only pre-2005 finding of “flagrant and outrageous” conduct that I can make is in respect of Det. Luce’s planting the knife on Mr. Perreault and then having him charged with at least one offence that Det. Luce knew that Mr. Perreault did not commit. This conduct was also calculated to do harm to Mr. Perreault by having him face criminal sanctions to which he should not have had to answer. Attempting to frame someone for a crime they did not commit meets the first two branches of the test for intentional infliction of mental suffering.

[252] I can make a finding of “flagrant and outrageous” conduct on the part of Det. Luce. However, there is a more interesting question of whether that finding can actually be applied to the Peel Police in this case, as Det. Luce was off duty at the time that the incident took place. It is not necessary for me to resolve this issue because of my determination on the third branch of the test for intentional infliction of mental suffering.

[253] It is on the third branch of the test that Mr. Perreault’s claim fails. There is no provable injury with respect to this conduct. Indeed, most of Mr. Perreault’s medical evidence was designed to prove that he had suffered PTSD as a result of the tasering. In any event, my conclusions on the medical evidence are as set out above in the section on medical evidence.

[254] One final observation should be made. Paragraph 3 of Mr. Perreault’s Statement of Claim states “between 1999 and 2005, the Plaintiff became the target of numerous police harassment [sic], high-handed conduct, as well as false and malicious arrest.” No claim for false or malicious arrest was pursued past the pre-trial, where Mr. Perreault was represented by counsel. I have no evidence that these claims were even pursued at discovery back in 2009. As a result, I am not prepared to make a finding relating to these claims.

The January 24, 2005 Incident

[255] In January 2005, Mr. Perreault was subject to bail conditions as a result of the charges from the October 2004 incident. Those bail conditions included a requirement that Mr. Perreault not communicate with specific Peel Police officers, not to attend the residence of any Peel Police officer and not to possess any firearm, cross-bow or other prohibited weapon or the like. It is the weapons prohibition that is important for the events of January 24, 2005.

[256] These conditions, and some other facts, were used to obtain a warrant to search Mr. Perreault’s house on the evening of January 24, 2005. During the course of this search, Mr. Perreault was tasered. Mr. Perreault now claims damages for assault and battery. In the sections that follow, I will address the following issues:

a) The issuance of the warrant, including whether there is any question that the warrant was obtained by the Peel Police in bad faith.

b) The communication of the warrant to the tactical team.

c) The execution of the warrant.

d) Whether Mr. Perreault has a claim for assault and battery as a result of all of these events.

[257] I will deal with each issue in turn.

a) The Warrant

[258] Events during the day of January 24, 2005 moved quickly. At some point during that day, a confidential informant (“CI”) provided information to Cst. Jean Schaefer, who was a Peel Police officer at the time. This information, which Cst. Schaefer believed was credible, was that Mr. Perreault was in possession of cross-bows and napalm and was “over the top and ready to kill a Peel Police officer”.

[259] Based on this information, Cst. Schaefer also ran a CPIC search on Mr. Perreault. She included the results of that CPIC search in her Information to Obtain (“ITO”) the search warrant. The problem with the search warrant was that it also included significant details about the charges that Mr. Perreault had been acquitted of in December 2004.

[260] In any event, Cst. Schaefer pulled together the information that she had, prepared an Information to Obtain a search warrant and sought judicial authorization for the warrant from Justice of the Peace Farnum. The warrant was granted at approximately 9:30 p.m. and expired at 11:59 p.m. Cst. Schaefer then met with the tactical team that was charged with executing the warrant and the warrant was then executed.

[261] Mr. Perreault challenges both the bona fides of the warrant and its execution. He is advancing a claim for assault and battery as a result of the execution of the warrant.

[262] During the trial, Mr. Perreault sought to call the person he thought was the CI. This also led to an issue between the parties as to whether Mr. Perreault had actually abandoned any claim that the search warrant was properly obtained. I will now summarize those issues and set out my conclusions on whether the warrant was executed in good faith.

Calling the Potential CI as a Witness

[263] Originally, the person who Mr. Perreault thought was the CI was prepared to testify and had been summoned by Mr. Perreault to attend the trial. Mr. Perreault had allegedly identified the CI by reviewing documentation that had been provided by the Peel Police but that had not been properly redacted. Counsel for the Peel Police did not realize that parts of this documentation should have been redacted until we were well into the trial.

[264] As a result, we adopted a process to ensure both that the necessary redactions were properly made in all of the documents and that the alleged confidential informant had access to the Crown and to that person’s own counsel if that person wished. At the end of that process, the person who was potentially the CI did not testify.

[265] In addition, I was required to limit questions that were asked of the witnesses who did testify to prevent them from disclosing information that would have resulted in the identification of the alleged CI.

[266] The trial proceeded with a copy of the warrant and with a redacted ITO. The redactions on the ITO will be discussed when I review the contents of the warrant.

[267] Mr. Perreault suggested that this warrant was obtained because he had decided to proceed with a lawsuit against the Peel Police. There is no merit to this claim, as Mr. Perreault also acknowledged that he had not told anyone from the Peel Police that he was pursuing a lawsuit against them.

What Challenges Was Mr. Perreault Making to the Search Warrant?

[268] Based on the answers that were given on discovery, counsel for the Peel Police argued that Mr. Perreault should not be able to challenge the bona fides of the warrant. For the reasons set out in my decision of November 5, 2018 (Perreault v. Peel Police Services Board, 2018 ONSC 6660), I rejected this claim. However, I did impose limits on Mr. Perreault’s challenges to the warrant.

[269] The limitations on Mr. Perreault’s challenges to the warrant were set out at paragraphs 32 to 35 of my November 5, 2018 decision. Those paragraphs read as follows:

[32] As I have indicated, the allegations that the Peel Police improperly obtained the warrant can be advanced. However, they can only be advanced in a limited way, and for limited purposes. First, the only allegation that has been made is that the information of a confidential informant was not properly obtained, or properly recorded. This is the only allegation that can be advanced at this late stage.

[33] Second, the allegation that the warrant was improperly obtained cannot be advanced to claim a remedy for any tort that was not set out in the Statement of Claim. These claims are, at this point, statute barred.

[34] Third, the Peel Police must have the ability to respond to these allegations. To that end, the Peel Police are entitled to call Ms. Schaefer, or any other additional witness, to speak to this issue, and only this issue, as long as those witnesses are identified by November 21^st, 2018.

[35] Fourth, any evidence, including any cross-examination, will be limited by the restrictions that flow from privilege afforded to informers. I now turn to those issues. [Emphasis in original.]

[270] In addition to challenging the warrant based on the improper use of information from the confidential informant, Mr. Perreault also challenges the good faith of the police in obtaining this warrant on the basis that there was nothing found in his home and on the basis that the records the police used showed that Mr. Perreault had outstanding charges relating to the June 2003 incident when, in fact, Mr. Perreault had been acquitted of those charges.

[271] In spite of my ruling that the challenges on the warrant were limited to the confidential informant, I heard considerable evidence from both parties about the CPIC record as well as the question of good faith generally. For the most part, these allegations developed through evidence that was led after my ruling. Therefore, I will address the merits of both of these additional issues.

[272] In considering this challenge to the merits of the warrant, I note that the warrant is presumed to be valid. It is up to Mr. Perreault, as the person challenging the validity of the warrant, to demonstrate that it is not valid. See R. v. Collins (1989), 1989 264 (ON CA), 48 C.C.C. (3d) 343 (Ont. C.A.). This brings me to the merits of Mr. Perreault’s challenges.

[273] First, the fact that there was nothing found in Mr. Perreault’s home does not mean that the police were acting in bad faith by obtaining the warrant. I reach that conclusion for the following reasons:

a) Obtaining a warrant does not require the police to demonstrate that evidence of a crime is actually present in the place that they wish to search. Instead, the police are required to demonstrate that there are reasonable and probable grounds to believe that a crime has been committed and that information relevant to the crime will be found in order to obtain a warrant.

b) Ex post facto justifications for a warrant are generally not considered in determining whether a warrant is valid. If weapons had been found, that would not have made the warrant any more valid than it was when it was issued. The absence of weapons in Mr. Perreault’s house does not make the warrant any less valid.

[274] This second point brings me to Mr. Perreault’s central contention on the warrant. Mr. Perreault argues that the information from the CI was not properly obtained and/or not properly recorded by the Police. The problem with Mr. Perreault’s assertion is that it is based on his belief that the CI could not have been in his house in the relevant time period and could not have seen the weapons.

[275] It is possible that the CI misstated the facts. It is also possible that the CI lied to the police about what evidence had been seen in Mr. Perreault’s house. It is also possible that the police misrecorded the information from the CI. None of these possibilities would support any misconduct on the part of the police.

[276] Therefore, I am left with the question of whether the warrant was reasonable, and whether the police had a reasonable belief in the facts that underlie the warrant. This brings me to the contents of the CPIC record that Cst. Schaefer relied upon.

The Contents of the CPIC Record

[277] The actual CPIC record that was part of the ITO was filed. That record showed the charges from October 2004 were still outstanding and that Mr. Perreault was out on conditions as a result of those charges. The CPIC record that was obtained by Cst. Schaefer does not show the June 2003 incident as either being outstanding or being resolved.

[278] However, the Peel Police records at the time appear to show the June 2003 incident as being outstanding. The evidence that was provided on this point was not entirely clear either way.

[279] The reason that this discrepancy is a problem is that Mr. Perreault had been acquitted of the June 2003 charges and they were, arguably, no longer relevant in determining whether a warrant should be issued. This problem brings me to the question of whether the police, and particularly Cst. Schaefer, acted in good faith in obtaining the warrant.

Conclusions on Good Faith

[280] I have concerns about Cst. Schaefer’s inclusion of the June 2003 allegations in the ITO. This was a matter where Mr. Perreault had been acquitted. This means that the warrant, on its face, is inaccurate.

[281] Cst. Schaefer’s explanation was that the system had not been updated and that she was not aware of the acquittal. The problem with this explanation is that at least one of the records that Cst. Schaefer relied upon did not show the charges as outstanding.

[282] However, there is at least some evidence in the warrant as to the existence of this discrepancy. The warrant specifically states that “Mr. Perreault is presently before the courts on outstanding criminal charges of Utter Threats and Possession of a Prohibited Weapon.” Therefore, the warrant sets out (at least implicitly) the fact that the charges from the June 2003 incident were no longer before the courts. This information would have been before the Justice of the Peace.

[283] More importantly on the question of good faith, however, is the analysis that a reviewing judge would do in response to a warrant. A judge reviewing the sufficiency of an ITO provided in support of a search warrant does not substitute their own view for that of the authorizing judge. If the reviewing judge concludes that the authorizing judge could have granted the authorization based on the materials that were filed, then the reviewing judge should not interfere with that decision: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452.

[284] The standards that are applied have been described by K.L. Campbell J. of this Court in his reasons in R. v. McKenzie, 2016 ONSC 245, at para. 14.

[285] In this case, the issuing judge, Justice of the Peace Farnum, may very well have been able to issue the warrant on the other information. Even without the evidence of the first incident, there was evidence that Mr. Perreault had made threatening statements about the Peel Police, and Peel Police officers, on more than one occasion. That evidence comes from Mr. Perreault’s telephone call to Cst. Moore, his interview with Det. Gorlick and his interactions with Cst. Chhinzer. As I have set out above, I view these all as serious concerns.

[286] In addition, there was the information from the CI. Although we cannot clearly scrutinize this information, what we have appears to be sufficient to at least demonstrate that the police had a good faith basis for obtaining the warrant. It is not necessary for me to finally determine whether the warrant would have withstood scrutiny under the Canadian Charter of Rights and Freedoms. It is enough to determine that the police did have a basis for obtaining the warrant.

[287] In any event, however, I would note that section 25(2) of the Criminal Code, R.S.C. 1985, c. C-46, provides protections to officers who are in good faith carrying out a warrant even if the warrant was defective, issued without jurisdiction or issued in excess of jurisdiction. In other words, as long as the officers were acting in good faith, defects in the warrant will not give rise to a claim.

b) The Information Provided to the Tactical Team

[288] At this point, the Peel Police viewed Mr. Perreault as a significant threat. This was obvious from the Officer Bulletin that had been put out about Mr. Perreault in October 2004. In my view, there was good reason for the police to have these concerns for the following reasons:

a) Mr. Perreault had been belligerent with police on a regular basis in his interactions with them.

b) Mr. Perreault had uttered what could be very threatening and concerning statements about police. In particular, his comments that “he does not want to be the next Timothy McVeigh” must be taken seriously by the police.

[289] It is in this context, but in the context of an ITO that was not entirely accurate, that the discussion with the tactical force must be considered. The tactical briefing was led by Cst. Schaefer. During the course of that briefing, the warrant was reviewed and signed by each of the officers.

[290] Based on the warrant, the officers had reason to be concerned about Mr. Perreault. However, Sgt. Whyte had developed the tactical plan, which was described in evidence in detail. The development of the tactical plan had included driving past Mr. Perreault’s house and considering the layout of the house and the surrounding area. It also contains other details that suggested a desire to execute the warrant with the minimum amount of intrusion.

[291] In summary, a tactical team of approximately ten officers (including canine units) was to meet at a staging area on Great Lakes Drive, near Mr. Perreault’s house. The tactical team then proceeded to Mr. Perreault’s house, where their role was to establish a perimeter around Mr. Perreault’s house and then to engage in an execution strategy referred to as a “call-out”. Simply put, a “call-out” is a demand to the person, or people, in the residence to come out so that the house can be searched.

[292] When the tactical team was deployed, a number of them had various less lethal force options available to them. Sgt. Whyte and Cst. Amoroso both described these options, and both confirmed that they had each been issued a taser for the execution of this warrant. I will discuss the issues relating to the operation of the taser and the Peel Police’s system for issuing tasers when I come to the expert’s testimony, as Mr. Lawrence also provided evidence on these issues.

[293] Finally, in the course of cross-examination, Mr. Perreault raised issues about why the neighbourhood had not been evacuated before this warrant was executed and why other precautions (such as having an ambulance standing by) had not been taken. In this respect, I note that an explosives expert had been consulted as part of the team, but that this person was not called as a witness.

[294] Mr. Perreault seemed to be suggesting that the failure to take these additional precautions supported his view that the warrant was not properly issued. I disagree. It is always possible to find problems with a plan after the fact. I do not view the problems that Mr. Perreault raised as being particularly significant to my conclusions about the execution of the warrant.

c) The Execution of the Warrant

[295] The tactical team met with the investigating officers and other personnel at the staging area, which was a school on Great Lakes Drive. The tactical team approached the house and began to set up a perimeter. The remainder of the police remained behind at Great Lakes Drive. The two key members of the tactical team for the purposes of this case were the lead officer, Sgt. Whyte and the officer who tasered Mr. Perreault, Cst. Amoroso. They both testified about these events, as did Mr. Perreault. What follows is my findings of facts based on their testimony.

[296] Shortly after 11:00 p.m. on January 24, 2005, Mr. Perreault was at home. At the time, Mr. Perreault owned three dogs, two of whom were puppies, and they started to bark “like crazy”. At that point Mr. Perreault looked out his window and saw the police. Mr. Perreault then had an exchange through a window with Sgt. Whyte. Essentially, Sgt. Whyte told Mr. Perreault to exit his house now. Mr. Perreault refused to do so and broke off contact with Sgt. Whyte.

[297] Mr. Perreault then went downstairs and telephoned Mr. Norris, his lawyer. Mr. Perreault left a message for Mr. Norris. He then placed the puppies into their cage and the adult dog into the bathroom. In this time period, Sgt. Whyte attempted to telephone Mr. Perreault. The first time there was no answer, while the second time Sgt. Whyte did make contact with Mr. Perreault.

[298] Ultimately, after approximately eight minutes had passed, Mr. Perreault came to the front door. Mr. Perreault testified that he came to the door and then told the officers that he wanted to get a jacket. He then went back inside and put on a jacket. At least one of the officers, Cst. Amoroso, lost track of Mr. Perreault when he went back inside the house.

[299] Mr. Perreault came back out of the house. Mr. Perreault says that his hands were up by his face when he came out of the house. Both Sgt. Whyte and Cst. Amoroso testified that Mr. Perreault began to reach down towards the belt line area. They both also testified that this is the area where people keep weapons.

[300] At this point, Sgt. Whyte was directly in front of the door to Mr. Perreault’s house. Cst. Amoroso was off to the left of the door as you face the house. Given the motion downwards, Cst. Amoroso testified that he deployed the taser and the darts struck Mr. Perreault.

[301] However, Cst. Amoroso testified that the darts did not stop Mr. Perreault’s movements. As a result, Cst. Amoroso deployed a second taser cartridge, which also struck Mr. Perreault. This second deployment also did not stop Mr. Perreault from moving. Therefore, Cst. Amoroso testified that he applied the energy from the taser to Mr. Perreault again.

[302] This evidence was generally consistent with the evidence given by both Mr. Perreault and Sgt. Whyte. Mr. Perreault testified that he was attempting to remove the taser darts from his body, which suggests that he was able to move. All three witnesses agree that Mr. Perreault was tasered more than once.

[303] The witnesses disagree on several pieces of evidence. First, Mr. Perreault alleges that he was cooperating but was simply doing the things inside that need to be done. I reject this assertion. Mr. Perreault had been given a command by Sgt. Whyte to come out. Mr. Perreault was belligerent in response to this command and waited nearly ten minutes to comply with it. I view this as being uncooperative.

[304] Mr. Perreault testified that it was reasonable for him, when he came out of the house, to go back in and get a jacket. Again, I reject this evidence. He had been told to leave the house and had waited nearly ten minutes to comply with this direction. Deciding to come out and then go back inside the house is more uncooperative behavior. In addition, it is behavior that would have made the officers even more nervous about whether Mr. Perreault was planning some violent activity.

[305] Then, Mr. Perreault testified that he was putting up his hands. Both Cst. Amoroso and Sgt. Whyte testified that Mr. Perreault was not putting up his hands and, in fact was reaching towards his belt line. I accept the evidence of the officers and reject Mr. Perreault’s evidence for two reasons. First, Mr. Perreault had already been uncooperative during the execution of this warrant. It is not unreasonable to infer that he would continue to be uncooperative. Second, Mr. Perreault testified that his hands were up around his face. This is not putting up his hands. Even on Mr. Perreault’s evidence, he was not cooperating with the officers’ commands rather than not being able to hear them.

[306] In addition, Mr. Perreault testified that he had hearing difficulties. However, Mr. Perreault did not ask to have any of the commands repeated. This suggests, again, that Mr. Perreault is not accepting the commands he is being given.

[307] This brings me to the number of times that Mr. Perreault was tased. Mr. Perreault testified that the officers applied the taser somewhere around ten to fifteen times. The officers testified that they applied it three times. I accept the evidence of the officers because it is consistent with the rest of the events, because their goal was to apprehend Mr. Perreault and because Mr. Perreault has a tendency to exaggerate the facts.

[308] With these factual findings in mind, I now turn to the question of whether excessive force was used.

d) Was Excessive Force Used?

[309] In this section, I will consider the admissibility and weight of the expert’s report on the use of force issues, the legal standard for determining whether the use of force is excessive and then whether the use of force in this case was, in all the circumstances, excessive.

The Expert Report

[310] Mr. Chris Lawrence was tendered by the Peel Police as an expert in this case. He was tendered as an expert in the use of force training and procedures, with a specialty in the use of tasers. Mr. Perreault did not object to Mr. Lawrence being qualified as an expert.

[311] However, as I have identified at paragraph 109, the Court has a gatekeeping function with expert evidence. See Bruff-Murphy, at paras 60-67[DI(11] . The test that needs to be applied to the admission of expert evidence has been discussed in my examination of Dr. Gilbert’s evidence, as set out above at paragraphs 110 and following, and I apply the same test to Mr. Lawrence’s evidence.

[312] The test for expert evidence requires a consideration of four criteria, as follows:

a) Necessity.

b) Relevance.

c) A qualified expert.

d) No exclusionary rule preventing the admission of the evidence. In this case, I do not see an exclusionary rule preventing the admission of the evidence and none was argued. As a result, I will not consider that factor further.

[313] When Mr. Lawrence was tendered as an expert, Mr. Perreault did not object to his qualifications and I accepted Mr. Lawrence as an expert. However, given my responsibilities under Bruff-Murphy, I will briefly set out the reasons for my conclusion that Mr. Lawrence should be accepted as an expert.

[314] First, in terms of necessity, Mr. Lawrence has knowledge that is both specialized and beyond the scope of the Court’s knowledge. In particular, he provided testimony about Ontario’s use of force model, how it works and how it affects an officer and their assessment of the situation. He also provided testimony about the various ways used by the police for controlling a subject that they want to arrest. All of this information is specialized knowledge and is necessary in that it assists in my understanding of the events of January 24, 2005.

[315] This brings me to relevance. The evidence being offered by Mr. Lawrence is clearly relevant. Mr. Perreault is asserting that the police assaulted him on the night of January 24, 2005. In order to support that allegation, Mr. Perreault must demonstrate that the police used excessive force. Understanding how the police were trained, how the use of force model works and how the situation on the night of January 24, 2005 would have been perceived by a properly trained officer is all information that is relevant to the questions I have to determine.

[316] Finally, there are Mr. Lawrence’s qualifications. Mr. Lawrence has more than thirty-five years' experience in law enforcement, including time as a police officer, as a member of the Tactical and Rescue Unit for Peel Police, as an instructor as a member of a police force and as an instructor at the Ontario Police College. Mr. Lawrence has received extensive training in use of force, the police response to mental health, and the use of less lethal weapons. More importantly, Mr. Lawrence has both written and taught extensively on these subjects for twenty-five years.

[317] Mr. Lawrence’s employment with the Peel Police ended in 1996. There was no evidence that Mr. Lawrence personally knew any of the officers involved in the January 24, 2005 incident involving Mr. Perreault. In addition, Mr. Lawrence’s resume shows that he has testified for all parties in the criminal justice system and not just for police forces. He has testified against officers in proceedings, although he has not testified for a plaintiff in a case such as this. As a result, Mr. Lawrence’s past employment with Peel Police does not raise an issue of bias or potential bias for me.

[318] During cross-examination, Mr. Perreault seemed to suggest that Mr. Lawrence was biased against Mr. Perreault because he quoted certain assertions from the Statement of Defence or from other police documents. Mr. Perreault also seemed to suggest that Mr. Lawrence was biased against Mr. Perreault because he based his opinion on facts that he took from the police notes.

[319] I reject both of these assertions. Even if they were supported by the factual record, neither of these assertions founds any claim in bias. The most that could be said is that the facts underpinning Mr. Lawrence’s opinion were incorrect. However, as can be seen from the factual findings I have laid out above, I have generally accepted Sgt. Whyte and Cst. Amoroso’s version of events that took place on the evening of January 24, 2005.

[320] In any event, however, Mr. Lawrence made another key point in his evidence, which is that the use of force is not governed by hindsight, but by what the police reasonably believed at the time. For example, when Mr. Perreault pointed out (correctly) that he was not armed on the night in question, Mr. Lawrence responded to this assertion by saying that was “hindsight”, and that the constellation of factors supported a conclusion that Mr. Perreault could have been a danger to police.

[321] Therefore, when Mr. Lawrence’s resume and testimony is considered, I view him as eminently qualified to provide expert evidence on the topic of use of force training and procedures, and specifically on the use of tasers.

[322] Mr. Lawrence testified that he did not visit Mr. Perreault’s house in person. However, Mr. Lawrence used Google Street View to confirm the way that the front of Mr. Perreault’s house looked from the front of the street. In addition, Mr. Lawrence reviewed the operational plan from the Peel Police as well as a series of officer statements and other documents. He also reviewed the pleadings in this matter and other documents. He did not interview any of the police officers involved in the incident and did not interview the Plaintiff either.

[323] Mr. Lawrence confirmed that the Ontario Use of Force model was used by police forces to assess situations when they are engaged in apprehending someone (‘the subject”). This model considers the cooperation from the subject as well as communications from the officer and responses to that communication from the subject. It is a dynamic model that requires the officer to continually assess the situation. It is the model that was relied upon by the officers the night the warrant was executed.

[324] Mr. Lawrence also testified that different officers would have different perceptions of the same events, depending on their own experiences and skills. As a result, the responses to the same situation might vary from officer to officer. However, I also understand from Mr. Lawrence’s testimony that training is provided to officers, particularly on a tactical team, to ensure that they can deal with these situations safely.

[325] Mr. Lawrence also reviewed the options for use of force for an officer, which include:

a) A baton.

b) The ARWEN, which is a weapon that uses rubber bullets.

c) A taser.

d) Physical force used by the officer.

[326] Mr. Lawrence explained that there were risks with all these weapons to both the subject and to the police officer. Starting with physical force, the risk of permanent harm to both the officer and to the subject was potentially significant. Similarly, a baton was an intermediate weapon, but would end up with the subject and the apprehending officer too close together. Finally, there was the ARWEN, which can be inaccurate and can result in broken bones.

[327] Mr. Lawrence was cross-examined about problems with the use of tasers. In cross-examination, Mr. Lawrence acknowledged that there were incidents where someone had been tasered and subsequently had died. However, Mr. Lawrence pointed out that the cause of death was, for example, from falling over or losing control of a vehicle rather than from the tasing itself. I accept that there are also risks with tasering someone even if many of these risks are only indirectly related to the use of the taser.

[328] In terms of the use of tasers in Ontario, Mr. Lawrence confirmed that they were quite new in 2005, and that the officers involved would have been trained on them in the last year. Mr. Lawrence acknowledged that Cst. Amoroso should have tracked more information about the taser when he completed the report. In particular, the taser serial number and cartridge serial number should have been included on the report. Mr. Lawrence also acknowledged that the tasers included information that could be downloaded if they were managed properly.

[329] There are flaws in the way that the Peel Police were managing the data from the tasers back in 2005. However, I am also cognizant of the fact that the taser was a relatively new weapon and that there may have been some growing pains in using it. On the evidentiary record I have, I do not view these flaws as a deliberate attempt to hide evidence about the Plaintiff’s tasering. They do reveal a more systemic issue that I understand has been resolved since.

[330] In his assessment of this incident, Mr. Lawrence did not have all of the details correct. The key detail that he was wrong about was how the first conversation with Mr. Perreault was initiated. Mr. Lawrence’s evidence seemed to suggest that Mr. Perreault had initially been contacted by telephone. However, as set out above, Mr. Perreault had initially seen the tactical team (and contacted them) from an upstairs window.

[331] However, Mr. Lawrence generally understood the sequence of events, and his opinion was based on a correct general understanding as follows:

a) Mr. Perreault originally refused to come out of the house at all.

b) There was a delay of approximately ten minutes before Mr. Perreault finally came out of the house.

c) When Mr. Perreault came out of the house the first time, Mr. Perreault decided to go back into the house, contrary to the instructions the officers had been providing to him.

d) When Mr. Perreault re-emerged from the house, he did not put his hands up. Instead, just before he was tasered, Mr. Perreault was reaching into the area of his waist around his open jacket.

[332] Based on this series of events, and based on the risks associated with the various less lethal force options, Mr. Lawrence was of the opinion that tasering Mr. Perreault was an appropriate use of force.

[333] Mr. Lawrence was also asked about multiple taserings. Mr. Lawrence freely acknowledged that tasering someone fifteen times would be excessive. He was asked about the tasering in this case. His answer was rooted in how the taser worked. The taser can be deployed in two ways. First, as a drive stun, which involves inserting the taser directly into the subject if the officer is standing next to the subject. This is designed to get compliance through pain. Second, it can be deployed with probes from a distance, which is designed to temporarily immobilize the subject.

[334] In this case, the taser was deployed with probes from a distance. When used that way, the taser’s maximum effect will be achieved by having the probes enter the subject’s body some distance apart. The result is that the taser completes a circuit with the subject forming part of the circuit. The taser then cycles for five seconds. The result is that the subject’s muscles lock up and the subject is unable to move.

[335] If, however, the probes do not both end up in the subject, then the circuit is not completed and the subject is able to keep moving. This may necessitate a further deployment of the taser. The further deployment of the taser can be done by changing cartridges, which provide the officer with a new set of probes connected to the taser.

[336] Finally, once the probes have been fired and attached to a subject, it is possible to re-deploy the taser for a further five second cycle of energy by pressing the trigger again. This will cause the electricity to cycle through the subject again for another five second cycle.

[337] In this case, Mr. Lawrence was of the opinion that the use of force was reasonable in this case. He was also of the opinion that discharging the taser three times with two separate cartridges was necessary in the circumstances of this case. These final conclusions are close to the ultimate issue that I have to decide, so I have given them less weight than the other opinions provided by Mr. Lawrence.

The Legal Standard

[338] section 25(1) of the Criminal Code states:

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

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

[339] This provision provides protection to the police when they are, inter alia, executing search warrants. The provision has been considered in the case-law, and some principles have emerged. First, the courts generally consider four separate questions in assessing whether the police can avail themselves of the protections of section 25(1). See Du Carmur v. Cole, 2016 ONSC 4930, at para. 158; Wilsdon v. Durham Regional Police, 2011 ONSC 3419, at para. 68; and Crampton v. Walton, 2005 ABCA 81, 250 D.L.R. (4th) 292, at para. 6. The four requirements are as follows:

a) the police were required or authorized by law to perform the action;

b) the action was committed to further the administration or enforcement of law;

c) the police acted on reasonable grounds in performing the action; and

d) the police did not use unnecessary force.

[340] In some of the cases (e.g. Crampton) the first two branches of this test are conflated and the test is set out as a three part test. In addition, there are a couple of other general principles that should be noted. First, the burden of proof to establish these four requirements rests on the police: see Wilsdon, at para. 68 and Du Carmur, at para. 158. However, even if a Court finds that unnecessary force has been used, the onus remains on the Plaintiff to demonstrate that the force used was excessive: Du Carmur, at para. 160; Wilsdon, at para. 69.

[341] Second, the police should not be held to a standard of perfection in their actions. As the Supreme Court of Canada noted in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 35:

[35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell:

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude.

[Citations omitted.]

[342] These principles have also been discussed by the Court of Appeal more recently in Fleming v. Ontario, 2018 ONCA 160, 140 O.R. (3d) 684, at paras. 60-63. I will apply these general principles to the facts of this case.

Can the Police Rely on Section 25(1)? Applying the Law to the Evidence

[343] Yes; I am of the view that all four of the criteria set out above have been met. I will review each of them in turn.

[344] First, the police were authorized by law to perform the action. The warrant was issued by the Justice of the Peace and the police were acting to carry out this warrant. As discussed in Crampton, at paras. 15-18, the police may not have been authorized to detain Mr. Perreault as part of the execution of the warrant. However, reasonable restraint of Mr. Perreault so that the police could execute the warrant is something that was envisioned. Requiring Mr. Perreault to exit his house for the execution of the warrant was reasonable. For the same reasons, I conclude that the search warrant was committed to further the administration or enforcement of law.

[345] The third branch of the test, that the police officer was acting on reasonable grounds to perform the actions, is a modified objective test. The court must determine whether there was an objectively reasonable basis, given the circumstances, for the actions undertaken by the officer.

[346] As the Alberta Court of Appeal noted in Crampton, at paras. 25-27:

[25] A search warrant indicates there are reasonable grounds to believe evidence in respect of an alleged criminal offence can be found in a residence and authorizes a search of the premises for that evidence. In this case, the alleged offence is the cultivation of marijuana and the warrant authorizes a search for drugs. Neither the specific terms of the search warrant nor any provision of the Criminal Code deems the issuance of a search warrant to be a carte blanche to the police to execute the warrant in any manner, with any level of aggression and with any type of restraint or detention they see fit. Section 25(1), which plainly calls for a police officer to act on reasonable grounds, confirms this interpretation.

[26] Case law on the application of s. 25(1) to search warrant situations also confirms that a warrant alone does not satisfy the second branch of the defence. In both Chrispen v. Kalinowski and Foley v. Shannahan the police executed a search warrant in a manner alleged to be unreasonable. In both cases the courts looked beyond the warrant and considered whether the manner in which it was executed was objectively reasonable in the circumstances. Both courts concluded that test was not met and, accordingly, s. 25(1) did not provide a defence to the police.

[27] In this case, to satisfy the second branch of s. 25(1), the police must establish there were reasonable grounds for the actions taken in executing the warrant. More specifically, they must prove on a balance of probabilities that it was reasonable, in the circumstances, to deploy the tac team, to execute the warrant in an aggressive manner and to restrain Mr. Crampton. [Citations omitted.]

[347] In this case, I had a great deal more information than the Court did in Crampton. The evidentiary record before me contains some of the information in the Information to Obtain the warrant as well as the warrant itself. While details about the confidential informant could not be shared for the reasons set out in my November 5, 2018 decision, other details were shared.

[348] I have dealt with my concerns about the fact that the June 2003 charges were listed as outstanding in the Information to Obtain the warrant. However, even with those concerns, there is still a troubling picture that emerges from Mr. Perreault’s statements about police.

[349] The Peel Police had sufficient concerns about officer safety that they had issued an officer safety bulletin about Mr. Perreault. In addition, I note the following:

a) In his January 2004 interactions with the Peel Police, Mr. Perreault had stated that he might become the next Timothy McVeigh if senior officers did not engage with him.

b) In his interactions with Det. Chhinzer, Mr. Perreault threatened officer safety and was aggressive and belligerent.

c) Mr. Perreault had been belligerent in his other dealings with the police.

d) The confidential informant had advised that there were weapons (cross-bows) and explosives (napalm) in Mr. Perreault’s home.

e) Mr. Perreault was on bail that prevented him from having said weapons.

[350] Therefore, it was not unreasonable for the Peel Police to conclude that Mr. Perreault might be in violation of his bail conditions and that he might be planning harm to an officer. In reaching this conclusion, I hasten to add that it is clear after the fact that Mr. Perreault was not either in violation of his bail conditions or actually planning harm to officers. It was, however, a reasonable inference for the Police to draw based on what they knew when they sought the warrant.

[351] Therefore, I am of the view that using the tactical team to carry out the warrant was also a reasonable step for the police to take. This is especially true when the operation plan is remembered. Sgt. Whyte had devised an operations plan that would surround the house but would give Mr. Perreault the opportunity to come out of the house peacefully, under his own power and without any significant use of force. On the reasonable facts as the Peel Police understood them at the time, this was a reasonable operations plan.

[352] This brings me to the final branch of the test, which requires me to determine whether the amount of force actually used on January 24, 2005 was reasonable. I have concluded that excessive force was not used for the following reasons:

a) Mr. Perreault was asked to come out of the house and initially refused to do so.

b) Mr. Perreault was not clearly visible to the officers for a period of approximately eight minutes after he was first told to come out of the house.

c) Mr. Perreault had access to items in his house, such as knives, that could be used as weapons.

d) When Mr. Perreault emerged from the house, he was not following instructions in two respects. First, he went back into the house. Second, he was not prepared to put his hands up and walk backwards as he was exiting the house. Indeed, Mr. Perreault appeared to be reaching for his belt area when he was tasered.

[353] Based on all of these points, I conclude that the first tasering of Mr. Perreault was a reasonable step to take. In reaching that conclusion, I also have regard to the testimony of Sgt. Whyte, Cst. Amoroso and Mr. Lawrence about the various use of force options that were available to the officers on the scene. Given the circumstances, the taser was a reasonable choice.

[354] This brings me to the second tasing, and whether it was also reasonable force. I am of the view that it was. In reaching this conclusion, I note that the law does not require the police officers applying force to measure the precise amount of force that is necessary or to use the least amount of force necessary. See Crampton, at para. 45. However, the conduct of the police must still be reasonable.

[355] Cst. Amoroso testified that he would have expected Mr. Perreault to have had his muscles locked after the first tasing. However, Mr. Perreault was not only continuing to move, he appeared to be attempting to get up and he appeared to be trying to remove the taser darts from himself.

[356] Given the previous concerns, it was not unreasonable for Cst. Amoroso to use the taser a second time on Mr. Perreault. Similarly, when the second tasing did not appear to be working either, it was not unreasonable for Cst. Amoroso to apply the electric current from the taser a third time.

[357] Therefore, for all of these reasons, I conclude that the police did not violate section 25(1) of the Criminal Code and that Mr. Perreault was not assaulted.

Events After the January 24, 2005 Arrest

[358] When Mr. Perreault was detained on the night of January 24 and the early morning of January 25, 2005, he was detained and interviewed by Det. James Kettles. The tape from this interview was lost and not kept. The explanation that I was provided for this videotape not being available was that there were no charges that flowed from the interview, so the videotape was not kept. I accept that explanation, given that this was fifteen years ago and the systems for keeping videotapes have changed in that time.

[359] Det. Kettles testified that he discussed the air guns that Mr. Perreault had with him and concluded that Mr. Perreault was not intending to breach his bail conditions by having those weapons. As a result, Det. Kettles determined that Mr. Perreault should not be charged with a breach of his bail conditions.

[360] Det. Kettles also determined that Mr. Perreault had a great deal of anger towards the Peel Police. As a result, in his words Det. Kettles decided to “act as something of an ambassador” to Mr. Perreault to see if he could help defuse the situation.

[361] Det. Kettles was mostly successful in this goal. Approximately two weeks after the warrant was executed, Det. Kettles returned Mr. Perreault’s computer to him. On that occasion, Det. Kettles spent some time at Mr. Perreault’s house visiting him and discussing things with him. Over the next few months, Det. Kettles had several interactions with Mr. Perreault. These interactions were generally positive from Mr. Perreault’s perspective.

[362] There is only one of these interactions that requires any further mention. In the spring of 2005, Det. Kettles met Mr. Perreault and Mr. Perreault’s friend Rob Duckworth at a Hooters in Brampton. They had chicken wings and some beverages. Det. Kettles does not recall the date of this meeting. Mr. Perreault was certain that it was April 19, 2005. Given that Mr. Perreault received a ticket later that evening, I accept Mr. Perreault’s evidence about the date of this meeting.

[363] Det. Kettles and Mr. Perreault have different recollections about this meeting in two respects. First, Mr. Perreault testified that a Det. Jim Dolan was present for the meeting, while Det. Kettles was certain that Det. Dolan was not present. I accept Mr. Perreault’s evidence on this point for two reasons. First, it was confirmed by Mr. Duckworth’s testimony. Second, this is a meeting that Mr. Perreault would have had a lot more reason to remember than Det. Kettles would have.

[364] The second difference between Mr. Perreault and Det. Kettles was over the question of whether Mr. Perreault told Det. Kettles that he was suing the Peel Police. Mr. Perreault distinctly remembers telling Det. Kettles this fact, while Det. Kettles does not recall hearing this statement. Again, I accept Mr. Perreault’s testimony on this point for two reasons. First, it was confirmed by Mr. Duckworth’s testimony. Second, it is the sort of statement that Mr. Perreault might have made and that Det. Kettles might either not have heard or not have taken seriously.

[365] In any event, both parties also agree that after that meeting, Det. Kettles took the straw and/or glass that Mr. Perreault had been using for the purposes of DNA testing. Det. Kettles testified that he did this in order to provide it to the sexual assault task force as Det. Kettles had become certain that Mr. Perreault was not involved in the sexual assaults that were being investigated and he wanted the task force to stop considering Mr. Perreault as a suspect. This evidence was not challenged by Mr. Perreault, and I accept it all.

[366] After leaving Hooters on the night of April 19, 2005, Mr. Perreault went to the Tim Horton’s at Shopper’s World in Brampton. Mr. Duckworth was with him. Shortly after Mr. Perreault arrived, Mr. Duckworth went inside to order something from Tim Horton’s for himself and Mr. Perreault.

[367] At that point, Mr. Perreault describes police cars arriving at the parking lot one after another after another. Mr. Perreault stated that at least four cruisers came into the parking lot that night. Mr. Perreault viewed this event with suspicion, as he believed he might have been being targeted. Cst. Rob Moore, who interacted with Mr. Perreault that night, explained that it was shift change and that this Tim Hortons was less than a kilometer from 21 Division. I accept Cst. Moore’s explanation as to why four cruisers arrived at the parking lot.

[368] In any event, Cst. Moore approached Mr. Perreault and ended up giving Mr. Perreault a ticket. Other than that basic fact, the versions of events provided by Cst. Moore and Mr. Perreault are very different.

[369] Mr. Perreault testified that Cst. Moore approached Mr. Perreault and asked for him by name. Mr. Perreault identified himself and then said that Cst. Moore said to Mr. Perreault that you threatened me an hour ago. Mr. Perreault responded to this statement by saying that he had been with Det. Kettles an hour previously.

[370] Cst. Moore denied Mr. Perreault’s testimony as to how the interaction began. Instead, Cst. Moore stated that he had gone to Tim Hortons at 9:30 p.m. at the start of his shift. The Tim Horton’s at Shoppers World is a known area for complaints about trespassing and loitering. In fact, Cst. Moore testified that they are agents to enforce the Trespass to Property Act, R.S.O 1990, c. T.21.

[371] Cst. Moore approached Mr. Perreault, who was part of a larger group, and asked what Mr. Perreault was doing there. According to Cst. Moore, Mr. Perreault immediately became upset and confrontational. As a result, Cst. Moore wrote a ticket to Mr. Perreault. Cst. Moore does not recall if he put Mr. Perreault in the back of his cruiser but was certain that he did not put handcuffs on Mr. Perreault.

[372] I accept the evidence of Cst. Moore about this interaction and reject Mr. Perreault’s evidence. Cst. Moore is the police officer who took Mr. Perreault’s call on January 7, 2004, over a year prior to this interaction. This is the only time that the two of them had spoken prior to the interaction at the Tim Horton’s. Therefore, to accept Mr. Perreault’s evidence, I would have to conclude that Cst. Moore remembered this telephone call from a year ago and knew that Mr. Perreault was at the Tim Horton’s this night. Neither of these is likely. Cst. Moore’s interaction with Mr. Perreault in January 2004 was very brief. It only lasted ten minutes, and the matter was passed off to other officers to deal with. In addition, there is no explanation as to how Cst. Moore knew that Mr. Perreault was at the Tim Horton’s that evening. On this point, I reject Mr. Perreault’s assertion that the was followed from the Hooters to the Tim Horton’s. This assertion would require me to accept that Det. Kettles had been involved in having Mr. Perreault followed, and that is inconsistent with Det. Kettles’ stated desire (which I have accepted) to be something of an ambassador to Mr. Perreault.

[373] In addition, as I have noted above, Mr. Perreault has been aggressive and belligerent with the police on a regular basis when he has interacted with them. It is not a stretch to imagine that Mr. Perreault was once again aggressive in his interactions with the police.

[374] Mr. Perreault says that Cst. Moore handcuffed him and put him in the back of the police cruiser. Mr. Perreault also says that Cst. Moore took money out of Mr. Perreault’s wallet and kept it. Again, I reject both of these assertions. It is highly unlikely (although not impossible) that Cst. Moore would have handcuffed Mr. Perreault simply to write a provincial offences ticket for trespassing and then release him once the ticket was written. On both of these assertions, I have also rejected Mr. Perreault’s evidence because of his previously identified tendency to exaggerate the wrongs that the Peel Police have done to him. These are two more examples of the exaggerations.

[375] After this ticket was written, Mr. Perreault called Det. Kettles and told him that he had received a ticket. Det. Kettles called Cst. Moore and told him to tear up the ticket and not proceed with enforcing it. Det. Kettles then called Mr. Perreault back and told him not to worry about the ticket and that Mr. Perreault could tear the ticket up.

[376] Mr. Perreault decided to keep the ticket. In the course of the trial, Mr. Perreault suggested that the reason that Det. Kettles had Cst. Moore tear up the ticket is that Det. Kettles knew that a lawsuit was coming. I have already addressed that allegation elsewhere. However, I accept Det. Kettles’ evidence on this point, which is that he had the ticket torn up as a demonstration of good faith to Mr. Perreault, as Det. Kettles knew that Mr. Perreault had a great deal of anger towards the Peel Police.

[377] I see nothing wrong or actionable in what either Det. Kettles or Cst. Moore did in this interaction.

Damages

[378] This brings me to the question of damages. There is no liability that attaches to the Peel Police in this case, so there are no damages that flow from this decision. However, I did hear evidence about damages. Therefore, I will address the issues relating to the evidentiary record, as well as the loss of income and punitive damages claims, in the event that I am wrong on my findings of liability.

The Evidentiary Record

[379] I had two types of evidence from Mr. Perreault about damages. The first was the medical evidence. I have already concluded that this medical evidence does not substantiate Mr. Perreault’s claims of any physical or psychological injuries flowing from either the tasering or from any alleged harassment that took place between 2000 and 2005.

[380] The other evidence I received from Mr. Perreault was Exhibit 31, which was a graph of his income for the years between 1996 and 2016 both before and after the 2005 incident. There were no supporting documents to show where these income numbers came from. However, while Mr. Perreault was cross-examined about his income and his business, these numbers were not seriously challenged in cross-examination.

[381] In addition, the Peel Police provided documentation from the internet showing that Mr. Perreault’s business, SquidSkins, had an internet presence well beyond 2009. Mr. Perreault was also cross-examined about a series of invoices that he provided to the Peel Police as part of the disclosure process. Those invoices clearly suggest that SquidSkins was earning revenue in the time period around when Mr. Perreault started to receive ODSP benefits. This evidence brings me to Mr. Perreault’s loss of income claims.

The Loss of Income Claims

[382] As I have noted, in 2002 Mr. Perreault had SquidSkins, his business, as well as owning his own house and being able to afford to buy the Talon. He claims that, since 2002, his business has suffered and is now no longer producing any money. He claims that the reduction in his income is as a result of the conduct of the Peel Police. There are a number of serious problems with this claim.

[383] First, there is the evidence, or lack thereof. As I have set out in the previous section, the only evidence I had from Mr. Perreault was a graph showing his income numbers between 1996 and 2016. This document shows significant fluctuations in Mr. Perreault’s income.

[384] Mr. Perreault argues that the dip in his income between 2000 and 2004 was caused by the harassment that he suffered at the hands of the Peel Police. I reject this argument for two reasons. First, while there is a reduction in income during this time period, there is no evidence from which I can infer that the loss of income was caused by any interactions with the Peel Police.

[385] Second, there is Mr. Perreault’s assertion that he lost a significant amount of time in defending the tickets that he received, and that these tickets were part of a campaign of harassment by the Peel Police. If this assertion were true, it might amount to evidence showing that there was a relationship between Mr. Perreault’s lost income and his involvement with the Peel Police. However, I have already rejected this assertion. I would repeat, however, that Mr. Perreault’s claims of having spent an inordinate amount of time in court in 2003 and 2004 in defending these tickets is not justified given the number of tickets that he has produced in this litigation. Therefore, I do not see any connection between Mr. Perreault’s lost income and his involvement with the Peel Police.

[386] I have also found that Mr. Perreault is largely responsible, through his aggressive and belligerent attitude, for his negative interactions with the Peel Police. As a result, any damages that flow from these negative reactions are Mr. Perreault’s responsibility in any event.

[387] This brings me to the post-2005 losses. There are four key reasons why Mr. Perreault cannot establish any income losses after 2005, even if he did suffer from PTSD as a result of being tasered. Those reasons are as follows:

a) Mr. Perreault’s income went up in the couple of years after 2005. In fact, in 2008 Mr. Perreault had his third highest annual income over the 20 years. As a result, there is no basis to conclude either that Mr. Perreault lost income after the tasering or that any such losses were related to the tasering or to PTSD.

b) Mr. Perreault was able to get a job at Multimatic after the tasering, which suggests that any PTSD was not affecting his employability in this time period.

c) While Mr. Perreault began receiving ODSP benefits in 2010, I did not have any evidence to explain why he began to receive these benefits.

d) The evidence from Mr. Perreault and from other witnesses was that Mr. Perreault continues to race his motorbike and do work for his Squidskins business up to the date of trial. The scope and extent of this work was not detailed for me in evidence.

[388] In the result, I find that even if Mr. Perreault had been able to prove his claims of intentional infliction of mental suffering and/or assault and battery, he would not have been able to establish a claim for loss of income damages.

Other Damage Claims

[389] There are two other damage claims that should be dealt with briefly. First, Mr. Perreault claims that his house was “trashed” by the Peel Police during the course of the execution of the search warrant. The problem with this claim is that, while there were some photos of some messy rooms and a photo of some damage to some insulation near a water heater, there was no evidence to establish either that the search was unreasonably executed or that there was a cost of anything more than Mr. Perreault’s time to repair these things. Therefore, even if Mr. Perreault had been able to establish that the search had been unreasonably conducted, there is no quantifiable damage in any event.

[390] Also related to the execution of the search warrant is Mr. Perreault’s claim that certain items were stolen from his house by the Peel Police officers. I also reject this claim for two reasons:

a) This claim did not form part of the issues in either the Statement of Claim or in the list of issues that Emery J. set out. As a result, it is not properly before me.

b) There is no evidence other than Mr. Perreault’s testimony that these items were stolen from his house. I have previously set out my finding that Mr. Perreault tends to exaggerate the wrongs done to him by the police. As a result, in the absence of other evidence to establish that these items were stolen, I am not prepared to accept that they were actually stolen.

The Punitive Damage Claims

[391] In assessing punitive damages, the court must consider two questions. First, what is the impugned conduct? Second, does the impugned conduct rise to the level of egregious misconduct warranting the imposition of the exceptional remedy of punitive damages? See McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada, 2019 ONCA 213, 146 O.R. (3d) 607, at para. 67.

[392] In this case, having found that the Peel Police did not engage in tortious conduct, it would be difficult for me to provide any reasonable assessment of the punitive damages that would apply if the Peel Police had engaged in tortious conduct.

The Conduct of Counsel

[393] In his submissions, Mr. Perreault has made a number of very serious allegations about the conduct of Mr. Mazzuca, counsel for the Peel Police. There is no evidence to support any of these allegations. Further, even if some of these allegations were true, they would not amount to misconduct.

[394] I do not intend to review all these allegations. I will highlight three to illustrate the conclusions I have set out in the previous paragraph.

[395] The first allegation I would highlight is Mr. Perreault’s statements that Mr. Mazzuca lied in his submissions to me. My findings of fact, particularly with respect to the June 25, 2003 incident, make it clear that I do not agree with Mr. Mazzuca’s view of the evidence. The fact I reached a different conclusion does not mean that Mr. Mazzuca is either lying or doing anything else improper. He is simply representing his client by providing me with his client’s view of the evidence. This is a proper exercise of Mr. Mazzuca’s role as counsel. From an ethical perspective, I found nothing even remotely concerning about Mr. Mazzuca’s submissions. Mr. Perreault’s concerns in this regard are borne out of his misunderstanding of the role of counsel.

[396] Second, Mr. Perreault alleged that Mr. Mazzuca was deliberately covering up evidence about the tasers and that, more generally, Mr. Mazzuca was helping the police to continue to hide corruption. These are serious allegations to make of a lawyer, and I find no support whatsoever for them in the record.

[397] Finally, in his submissions, Mr. Perreault alleges that he would regularly tell Mr. Mazzuca about other cases of police misconduct and that Mr. Mazzuca demonstrated complete indifference to these other cases. Even if this were true, Mr. Mazzuca’s lack of interest in these cases is not a concern to the Court. I have detailed (at paragraphs 35 and following) why these incidents are not relevant to the case that I have to determine. Given these observations, it would not be a surprise that Mr. Mazzuca was neither interested in, nor concerned by, these allegations. They were not part of the case he had to answer.

[398] This brings me to my own observations during the hearing. As can be seen from my reasons, this was a very complex case that consumed a great deal of time over many years. I cannot speak for Mr. Mazzuca’s conduct when I was not present. However, having reviewed both my notes and the transcripts from all of the hearings before me, I am of the view that there is no basis to criticize Mr. Mazzuca. Indeed, in my view, Mr. Mazzuca acted with courtesy and respect towards both Mr. Perreault and Ms. Duffy throughout the hearing before me. Further, to the extent that it did not interfere with his professional obligations to his client, Mr. Mazzuca assisted both Mr. Perreault and the Court. Finally, Mr. Mazzuca remained professional in the face of scurrilous allegations that were being made about him by Mr. Perreault.

Conclusion and Costs

[399] For the foregoing reasons, I conclude that Mr. Perreault’s claims of harassment, assault and battery against the Peel Police are dismissed.

[400] This brings me to the subject of costs. The parties are encouraged to agree on the costs of this case. Failing agreement, the parties are each to file written costs submissions within twenty-eight days of the release of these reasons. Those costs submissions are to be no longer than seven single-spaced pages, exclusive of offers to settle, case-law and bills of cost.

[401] Any reply submissions may be filed twenty-one days thereafter. Reply submissions are to be no longer than three single-spaced pages, exclusive of bills of costs and case-law.

[402] Costs submissions are to be provided through both the Court’s email address, scjtrialofficebrampton@ontario.ca, and to my judicial assistant. Both methods of filing must be completed in order for the documents to be accepted. In light of the fact that Mr. Perreault is self-represented and that there is a deadline for these submissions, I am waiving the practice direction that requires the use of the online portal.

[403] There are to be no extensions to these deadlines, even on consent, without my leave. If the parties do not file costs submissions in accordance with this timetable and do not ask for an extension, then there will be no costs for this proceeding.

[404] I believe that I have addressed the issue of legal costs for this proceeding with Mr. Perreault. Those costs are not damages. However, as part of any costs claim, Mr. Perreault may also be entitled to claim costs for the work done by his previous counsel on this case.

[405] Finally, in terms of costs submissions, if the Peel Police are seeking costs of this proceeding, their submissions should address the issue of whether my findings about the conduct of Det. Luce should be a factor that suggests a downward adjustment in the quantum of costs that the Peel Police might otherwise seek for this case.

LEMAY J

Released: March 31^st, 2021

COURT FILE NO.: CV-05-011362

DATE: 2021 03 31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES PERREAULT

Plaintiff

• and -

REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD

Defendants

REASONS FOR DECISION

LEMAY J

Released: March 31^st, 2021

[DI(1]

[DI(2]Did this interview occur the day after the tasering/warrant execution?

[DI(3]This isn’t super important, but in the SCC decision, the order in which the criteria are listed is: (i) relevance; (ii) necessity; (iii) absence of an exclusionary rule; and (iv) qualified expert.

[DI(4]The style guide also dislikes “supra”.

[DI(5]January 24, 2005?

[DI(6]1999?

[DI(7]I would provide Det. Luce’s first name here, for consistency with how Your Honour treated the other witnesses/officers throughout the decision.

[DI(8]I would provide the Constables’ first names here, for consistency with how Your Honour treated the other witnesses/officers throughout the decision.

[DI(9]Earlier, you mention the MVA as occurring in October 1999.

[DI(10]Throughout the decision Your Honour refers to this officer by different titles (Cst./Mr./Sgt.) and alternates between spelling his last name as “AMOROSO” or “AMAROSO”.

Google suggests Amoroso is correct, so I’ve changed his name to that spelling. You refer to him as Cst. here, so I’ve used that title throughout.

[DI(11]The style guide also dislikes “supra”.