Court File and Parties
COURT FILE NO.: CV-12-1022 DATE: January 5, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLIAMS BOWERS Respondent
- and -
VALERIE BOWERS, DONALD LEBLANC, KYLA SIMMS, DETECTIVE SERGEANT SYLVAIN ARCHAMBEAULT and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants
COUNSEL: Mark Huckabone, counsel for the Respondent Judith Parker and Roopa Mann, counsel for the Defendant Detective Sergeant Sylvain Archambeault and Her Majesty the Queen in Right of Ontario
HEARD: August 10 & 11, 2020
REASONS FOR DECISION
JAMES, J.
INTRODUCTION
[1] This is a motion brought by Detective Sergeant Sylvain Archambeault and Her Majesty the Queen in Right of Ontario (the “Moving Parties”) for summary dismissal of the Respondent’s claims on the grounds that the Respondent has not raised a genuine issue requiring a trial (Rules 20.01(3) and 20.04(2)).
[2] The claims against the other Defendants have either been dismissed or are in the process of being dismissed on consent. Therefore, if the motion is successful, there will be no remaining issues to be tried.
[3] The Respondent, William Bowers, included in his documentation a brief which contained an expert’s report by Steven Reesor. During the course of hearing the motion, the Respondent indicated that he was not relying on this report for the purposes of this motion. Accordingly, I will not be addressing the parts of the Respondent’s factum that deal with expert evidence and the relationship between expert evidence and summary judgment motions. The motion proceeded on the basis that there was no expert evidence supporting the Respondent’s contention that Detective Sergeant Archambeault breached the duty of care he owed to the Respondent.
[4] The criminal charges against the Respondent that preceded the commencement of this lawsuit consisted of five counts and involved three complainants.
[5] All charges against the Respondent were dismissed following a trial in the Ontario Court of Justice. The trial judge commented adversely on the reliability and credibility of the complainants.
[6] For the reasons that follow, I have determined that the motion to dismiss the Respondent’s claims ought to be granted.
THE FACTS
[7] The Respondent was married to one of the complainants, Valerie Bowers, for about 18 years. They separated in or about January 2008. They have two sons, Tyler and Trent.
[8] The Respondent was a member of the Canadian Forces stationed at Garrison Petawawa, having joined the Forces in about 1988.
[9] Valerie Bowers had a romantic relationship with Donald Leblanc that led to the Bowers’ separation.
[10] The Respondent began a romantic relationship with Kyla Simms following the Bowers’ separation that lasted for about 18 months until about November 2009.
[11] Doug Bowers is the Respondent’s brother. At the material time, he was a member of the Royal Canadian Mounted Police (“RCMP”).
[12] Mathew Bowers is the son of Doug Bowers.
[13] Count 1 in the criminal charges against the Respondent involved an allegation of an assault against Valerie Bowers, alleged to have occurred in 1991. Count 2 involved a charge of criminal harassment involving Valerie Bowers, alleged to have occurred in 1992. Count 3 involved an allegation of assault causing bodily harm against Valerie Bowers in January 2008. Count 4 involved an allegation of assault against Kyla Simms in 2009. Count 5 involved an alleged threat directed to his nephew, Matthew Bowers, in approximately 2007 or 2008.
[14] The first relevant police contact involving the Bowers was when the Respondent called the Ontario Provincial Police (“OPP”) on January 29, 2008, regarding an altercation over the division of furniture following their separation. Constable Steve Regan took the call. He spoke with Valerie Bowers, who did not report having been assaulted or harmed in the altercation. No charges were laid.
[15] A few months later, Valerie Bowers gave a statement to Constable Regan wherein she alleged that, in fact, she had been assaulted in the January 29, 2008 incident. In her statement she said the incident had involved a tug of war with a table, possession of which was disputed. In this version of events, they argued and the Respondent at one point said she could have it and pushed the table into her. The Respondent gave a different account of the incident when questioned by Constable Regan. He also suggested that Ms. Bowers made the complaint when she learned the Respondent had applied for employment with the OPP and that the complaint was fabricated to harm him. Constable Regan served the Respondent with a Promise to Appear but no Information was actually sworn and no charge was laid in relation to this incident. Constable Regan concluded that there was not sufficient evidence to proceed with a case against the Respondent. Ms. Bowers’ boyfriend, Donald Leblanc, called Constable Regan to complain about the decision not to proceed.
[16] On April 24, 2008, Ms. Bowers made a report to Family and Children’s Services (“FCS”) that the Respondent had assaulted their son Tyler, age 15. Tyler and his younger brother, Trent, lived with the Respondent. The boys admitted there had been arguing and some physical contact. The protection worker did not have concerns for the boys’ safety. The FCS worker spoke with the Respondent about appropriate discipline methods. Constable Reid of the OPP sat in on the FCS interview of the boys and ascertained that there were no grounds to proceed with charges.
[17] This was followed by a series of harassing phone calls from Ms. Bowers to the Respondent that resulted in a police warning after a complaint by the Respondent. Constable Regan’s note about the situation indicated that the Respondent was satisfied with the warning that had been given to Ms. Bowers.
[18] In August 2009, in response to the Respondent’s application for a firearms permit, the local OPP firearms officer, Constable MacInnes, contacted Constable Regan about the table-shoving incident because Ms. Bowers had filed a response that indicated that the Respondent shouldn’t have a gun. He later interviewed Ms. Bowers as well. She also reported that the Respondent had stalked her. When Constable Regan learned about the stalking allegation from Constable MacInnes, he arranged for Ms. Bowers to provide a statement. There were scheduling difficulties regarding the appointment to conduct an interview and ultimately, Ms. Bowers indicated that she didn’t want to pursue a complaint.
[19] In the interview with Constable MacInnes, Ms. Bowers said that she had actually been injured in the January 29, 2008 table-shoving incident. The injuries included a separated shoulder and broken ribs. After investigating further, Constable MacInnes concluded that Ms. Bowers was not credible.
[20] In December 2009, Donald Leblanc complained to police about arguments between his now common-law spouse, Valerie Bowers, and Bill Bowers during access exchanges. He also reported that the Respondent would spin his tires in the driveway. There was a discussion between Mr. Leblanc and the report-taker, Constable Ritz, about a possible peace bond application. Mr. Leblanc noted to Constable Ritz that Doug Bowers was in a relationship with a female OPP officer, Constable Sonya Oleinikow, who worked at the Upper Ottawa Valley detachment. This issue surfaced again a month later.
[21] In January 2010, there was a series of communications between Donald Leblanc and/or Valerie Bowers and Kyla Simms, the Respondent’s now former girlfriend. Although Ms. Bowers and Ms. Simms had not previously been on good terms, they found common ground in their dislike for the Respondent and his allegedly controlling temperament.
[22] Ms. Simms reported to them that the Respondent had spoken harshly about Ms. Bowers, including an alleged threat to put her through a woodchipper, and she expressed concern for Trent’s well-being.
[23] This information prompted Ms. Bowers to again contact the police and Constable Michael Mahon took the call. He arranged for statements to be taken from both Ms. Simms and Ms. Bowers.
[24] Ms. Simms’ allegations, in a signed statement dated January 9, 2010, included the following:
a. that Mr. Bowes had made multiple threats against Ms. Bowes and Mr. Leblanc; and
b. that he had assaulted Trent by punching him and pulling his hair.
[25] Ms. Bowers’ allegations, in a sworn statement dated January 12, 2010, included the following:
a. that she sustained broken ribs as a result of the table-shoving incident; and
b. that the Respondent stalked her while she was living in military housing at Garrison Petawawa after they separated;
[26] During this period of time the Respondent was interested in leaving military service and obtaining employment with a civilian police service.
[27] His application for employment was well-received by the Kingston Police Service. As part of the hiring process, the Kingston Police Service asked retired Kingston Police Sergeant, Bob Ritchie (“Mr. Ritchie”), to perform a background check on the Respondent. Mr. Ritchie interviewed Ms. Bowers. She reiterated that she had been injured in the January 2009 table-shoving incident and said that the Respondent had anger issues which resulted in strained relations with their son, Tyler. She didn’t think he had the temperament to be a police officer.
[28] Notwithstanding the information provided by Ms. Bowers, the Respondent’s employment was approved. Upon being hired, he was required to attend the Ontario Police College from January to March 2010.
[29] Also in January 2010, Ms. Simms gave a statement to FCS regarding her concerns about the Respondent’s treatment of Tyler and Trent.
[30] The OPP investigation initiated by Constable Mahon of the Upper Ottawa Valley detachment was transferred to the Renfrew detachment due to Doug Bowers’s relationship with Constable Oleinikow. Detective Sergeant Archambeault was assigned to the lead investigator position. Detective Constable Lori Birmingham was assigned to the case as the file coordinator. Their mandate was to review the history of the OPP’s involvement.
[31] At the end of January 2010, Detective Sergeant Archambeault met with Detective Sergeant Howat and Detective Staff Sergeant Zulinski and briefed them on the investigation to date. He also met with the local Crown Attorney because the Respondent was now a police officer.
[32] Since the matter was now a “re-opened” investigation, all the notes of the previously involved officers were collected together with will-say statements to document the decision-making process. The investigators also obtained copies of documents from the FCS file.
[33] Detective Sergeant Archambeault took a sworn statement from Ms. Simms on February 5, 2010. In this statement she made two previously undisclosed allegations of assaults committed by the Respondent against her and re-iterated previously reported assaults against Trent. She said that the Respondent had coached and pressured Trent to deny the assaults when questioned by a FCS worker.
[34] Detective Sergeant Archambeault interviewed Ms. Bowers on February 10, 2010. The interview was observed by Constable Birmingham and a child protection worker with FCS. Ms. Bowers referred to previously undisclosed assaults, alleged to have been committed by the Respondent in 1991 and 1992. They viewed a video recording made in September 2008, of a confrontation with the Respondent during a child access exchange.
[35] Detective Sergeant Archambeault met with the Crown Attorney, Jason Nicol, on February 19, 2010, to discuss an unrelated matter and updated him on the Bowers investigation. Detective Sergeant Howat and Detective Staff Sergeant Zulinski were present at the meeting.
[36] On March 9, 2010, Detective Sergeant Archambeault and Constable Birmingham interviewed Matthew Bowers. He described an incident when he was 13 years old. The Respondent made a derogatory comment about what Matthew was wearing. Matthew said something back to the Respondent that provoked an angry response. He said that the Respondent threatened to kill him if he talked back to him again. The statement was detailed and graphic. He also said that when he was 9 or 10 years old, he saw the Respondent put Ms. Bowers head into a sink when he was angry.
[37] Detective Sergeant Archambeault says that following the interview of Matthew Bower, and as a result of the various interviews and related investigation, he believed that he had reasonable and probable grounds to charge the Respondent with the offences that were later tried and dismissed.
[38] Pursuant to OPP policy, Detective Sergeant Archambeault was required to notify the Kingston Police Service about his investigation of the Respondent. He contacted Staff Sergeant Tohill on March 10, 2010 and advised him that he was considering domestic violence charges against the Respondent. He requested information about the background investigation conducted by the Kingston Police Service.
[39] Detective Sergeant Archambeault was on vacation from March 11 to March 22, 2010.
[40] As of March 22, 2010, Detective Sergeant Archambeault had determined that he was going to proceed with charges against the Respondent.
[41] On March 23, 2010, Detective Sergeant Archambeault and Constable Birmingham interviewed Tara Willis, a military police officer. Ms. Willis and her partner, Matthew Saunders, lived across the street from the home of Kyla Simms. Mr. Saunders and Donald Leblanc were friends. Tara Willis corroborated certain aspects of the allegations made by Ms. Bowers and Mr. Leblanc. Ms. Willis described the Respondent as volatile and terrifying.
[42] Detective Sergeant Archambeault met with his supervisor and Crown Attorney Nicol on March 24, 2010.
[43] On March 25, 2010, Detective Sergeant Archambeault attended before a Justice of the Peace to swear the Information and Arrest Warrant. He initially intended to arrest the Respondent at his home but learned that the Respondent was spending the weekend at the Police College to prepare for his final exams.
[44] On March 29, 2010, the Respondent was arrested at the Ontario Police College in Aylmer, Ontario, just before he wrote his final exams. He had not been questioned or called in for an interview before he was arrested.
[45] As a result of the arrest, the Respondent was suspended from his duties as a fourth-class probationary constable. A follow-up investigation was conducted by the Kingston Police Service that resulted in a recommendation that the Respondent be terminated from his employment. This investigation was prepared by Staff Sergeant Tohill for the Chief of Police, S.J. Tanner, who in turn made the termination recommendation to the Kingston Police Services Board.
[46] Staff Sergeant Tohill had access to the OPP disclosure brief which contained significantly more information than was available to Sergeant Ritchie, who had conducted the previous background check. The Chief of Police summarized the situation as follows:
The background investigation revealed a previous OPP criminal investigation; however, the information surrounding that investigation was not exhaustive. New information was subsequently brought forward to the OPP that led to a recommencement of the investigation and the laying of charges. Four of those charges flow from new information.
[47] Confronted with the option of a hearing process under the Police Services Act or resignation, the Respondent said he did not wish to work for the Police Service if he was not believed and resigned his position.
[48] At the trial of the criminal charges in 2011, the trial judge expressed a concern that Ms. Bowers and Ms. Simms had ulterior motives as former partners of the Respondent to cause him harm and it is clear that he did not find them to be credible. He commented adversely on the quality of Matthew Bowers’s recollections. He also heard contrary evidence from both the Respondent and his brother, Doug.
POSITION OF THE MOVING PARTIES
[49] The moving parties say that:
i) The evidence by and on behalf of the Respondent does not raise a genuine issue requiring a trial;
ii) This case is suitable for summary judgment. The key facts are not in dispute. The motion, if successful, will dispose of the entire proceeding;
iii) The motion engages an essentially legal question: on the facts presented, can the claim of negligent investigation succeed; and
iv) The claims against the Moving Parties allege negligence only. The Statement of Claim does not plead malicious intent.
[50] The Moving Parties contend that when the essentially undisputed key facts are applied to the body of law respecting negligent investigation, the Respondent’s claims cannot succeed.
POSITION OF THE RESPONDENT
[51] The Respondent says that:
i) Detective Sergeant Archambeault did not have reasonable and probable grounds to lay charges;
ii) He relied on allegations from complainants who had obvious credibility and reliability issues that were apparent to prior investigators;
iii) He failed to have due regard for evidence that contradicted his theory of the case; and
iv) He was careless in the timing of the arrest and failed to have due regard for its impact on the Respondent’s career as a police officer.
DISCUSSION AND ANALYSIS
[52] The parties agree on the applicable legal test for summary judgment motions: Is the court satisfied that there is no genuine issue requiring a trial? There will be no genuine issue for trial if the court is able to reach a fair and just determination on the merits on a motion rather than a trial. Summary judgment motions engage the question of whether the evidence presented permits a fair and just adjudication that is timely, affordable and proportionate. If there appears to be a genuine issue, the court should determine if a trial can be avoided by weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence. Sometimes a full appreciation of the evidence can only be achieved by way of a trial in which case it is in the interests of justice not to dispose of the case summarily. (see Rule 20.04 and Hryniak v. Maudlin, 2014 SCC 7 at paragraphs 47, 49, 52 and 53).
[53] In my view, this is an appropriate case for disposition by summary judgment. A just result can be obtained without the necessity of a trial. The key facts are not in dispute. The Respondent has not identified a central fact in issue that turns on the credibility of any witness. The investigation by Detective Sergeant Archambeault that led him to conclude that he had grounds to charge the Respondent, are clearly laid out in the evidence available to the Court on this motion.
[54] The fact that the judge at the criminal trial was not satisfied that the Respondent’s guilt had been proven beyond a reasonable doubt, largely because of what he found to be a lack of credibility on the part of the complainants, is not particularly relevant to the issues in this case. This case is about whether Detective Sergeant Archambeault met the standard of care expected of a reasonable police officer in similar circumstances.
[55] A cause of action for civil damages for negligent investigation is relatively new in Canada. In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, the Supreme Court of Canada concluded that police officers should not be immune from liability for negligence and that they owe a duty of care to suspects. Their conduct should be measured against the standard of how a reasonable police officer would have acted in similar circumstances. As McLachlin C.J. explained at para. 73:
This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall with the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even optimum, judged from the vantage of hindsight. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors of judgment which cause unfortunate results, without breaching the standard of care.
[56] In Tremblay v. Ottawa (City) Police Services Board, [2018] O.J. No. 2870 at paragraph 60, the Ontario Court of Appeal summarized the legal principles that apply to negligent investigation in the context of laying charges, including the following:
i) The appropriate standard of care against which the impugned conduct is to be measured is that of a reasonable police officer in similar circumstances;
ii) In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence;
iii) This standard does not require police to establish a prima facie case for conviction;
iv) The police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges; and
v) A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.
[57] The analysis of what ought to be expected of a police officer who is assessing the presence or absence of reasonable and probable grounds to lay a charge necessitates distinguishing between the investigative function of the police and the evaluative and adjudicative functions of other actors in the criminal justice system such as Crown and defence counsel and the judiciary.
[58] Consulting with one’s colleagues and supervisor about an investigation and the appropriate course of action is evidence that a police officer is acting reasonably. In this case another officer was involved in the investigation along with Detective Sergeant Archambeault and Detective Sergeant Archambeault consulted with both his supervisor and the Crown Attorney on multiple occasions. This fact should be given significant-- if not determinative—weight (see Tremblay, supra, paragraph 58).
[59] Later, after the charges had been laid, Crown counsel elected to proceed to trial on all counts. This is not a situation where the prosecutor exercised his or her discretion to withdraw charges that did not appear to have a reasonable prospect of success. The decision of Crown counsel to proceed on all charges reinforces the contention that the “reasonable and probable grounds” standard was met.
[60] Earlier investigators who may have come to a different conclusion than Detective Sergeant Archambeault were not privy to the comprehensive investigation conducted by Detective Sergeant Archambeualt and Constable Birmingham. No previous investigation had been as extensive or wide-ranging, encompassing three complainants.
[61] Ontario Provincial Police Order 2.14, Domestic Violence Occurrence, provides in part as follows:
In determining whether to lay a charge, where the member has reasonable grounds to believe that an offence has been committed, they shall not be influenced by any of the following factors:
• Disposition of previous police calls involving the same victim and suspect;
• Affiliation of the parties as an employee or auxiliary with any police agency
[62] The Respondent says that Detective Sergeant Archambeault’s failure to properly consider the results of earlier investigations is evidence of negligence. I do not agree. OPP Order 2.14 specifically instructs an officer in Detective Sergeant Archambeault’s position not to be influenced by the disposition of previous calls. I would suggest that Order 2.14 is an informed response, based on experience, to the emotional and behavioural complexities associated with calls for service that involve domestic violence situations.
[63] The Respondent takes issue with the passage of time from about January, when Valerie Bowers and Kyla Simms were interviewed, to the end of March when he was arrested. During that time, Detective Sergeant Archambeault went on a vacation. He questions why, if there were safety concerns, did Detective Sergeant Archambeault delay arresting the Respondent until the last week of his course at the Police College? He also questions the motives behind his arrest near the end, but before completion, of his police training.
[64] It is easy to understand the Respondent’s chagrin at the timing of the arrest. He was near the end of his course. Staff Sergeant Tohill requested that the arrest be delayed until his graduation and Detective Sergeant Archambeault refused. The Respondent implies that this is evidence of malice but the case against the Defendants is based in carelessness and negligence, not intent to cause harm. The timing of the arrest in the circumstances of this case was a matter of police discretion; it does not go to the central issue of the presence or absence of reasonable and probable grounds.
[65] The Respondent in this case did not rely on expert evidence to establish the standard of care expected of police officers who are alleged to have acted negligently. As a general rule, expert evidence is required to explain how the impugned conduct fell short of what was reasonable. Sometimes the court can determine the standard of care without the benefit of expert evidence. In such cases, unlike this one, there is often a large quantity of materials on appropriate standards, policies and procedures. The dangers associated with relying on what other officers did or did not do to establish what was reasonable were outlined in the Tremblay case (see paras. 46-57).
[66] I do not accept the suggestion that the Respondent is entitled to suggest the presence of malice or some other form of intentional wrongdoing as evidence of negligence without specific pleadings asserting this as a cause of action distinct from a claim in negligence. The authorities referred to by the Respondent on this point are all cases dealing with requests to amend pleadings, usually after the expiration of a limitations period. There is no request before the Court to amend the statement of claim in this case. The distinction between harm that is caused intentionally versus unintentional harm is foundational.
DISPOSITION
[67] Having determined that there is not a genuine issue requiring a trial, the motion is granted.
[68] If the parties are unable to agree on the issue of costs, the Moving Parties may deliver a costs outline and draft bill of costs within 20 days, and the Respondent shall have 20 days to respond. The costs submissions may be filed electronically at the following email address: Pembroke.SCJ.Courts@Ontario.ca
Mr. Justice Martin James
Released: January 5, 2021
COURT FILE NO.: CV-12-1022 DATE: January 5, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
William Bowers
- and –
Valerie Bowers, Donald Leblanc, Kyla Simms, Detective Sergeant Sylvain Archambeault and Her Majesty the Queen in Right of Ontario
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: January 5, 2021