CITATION: Osman v. London Police Services Board, 2022 ONSC 1312
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MAHMOUD OSMAN, Plaintiff
AND:
LONDON POLICE SERVICES BOARD, ATTORNEY GENERAL OF ONTARIO and ATTORNEY GENERAL OF CANADA, Defendants
BEFORE: TRANQUILLI, J.
COUNSEL: Kevin Egan, for the Plaintiff/Responding Party Catherine Bruni, Amanda Shaw, for the Defendant London Police Services Board/Moving Party
HEARD: December 17, 2021
ENDORSEMENT
Introduction
1Officers of the defendant London police service arrested the plaintiff and two co-accused on drug trafficking and firearm offences. The Crown withdrew the charges against the plaintiff after he signed a Statutory Declaration disavowing any prior knowledge of the co-accused and any involvement in the offences.
2The plaintiff claims damages of $575,000 from the London police service for alleged negligent investigation, wrongful arrest, and malicious prosecution. The defendant police service brings this motion on several refusals arising from the plaintiff’s examination for discovery.
3At material issue is whether the plaintiff waived solicitor-client privilege and is required to disclose the details of his discussions with his defence lawyer that led to the withdrawal of the criminal charges and whether those communications are relevant to the legal tests for malicious prosecution and negligent investigation.
Issues
4The plaintiff has the burden of proving the torts of malicious prosecution and negligent investigation; each in accordance with a four-part test. A common element in both tests is the criminal proceedings must have terminated in favour of the plaintiff: Romanic v. Johnson, 2013 ONCA 23 at para. 6. The defendant contends the plaintiff’s communications with his defence lawyer are relevant to understanding how the withdrawal of the charges came about so as to determine whether the termination of the criminal proceedings was in favour of the plaintiff. Implicit in this argument is the defendant’s position that the plaintiff’s representations as to his innocence lacks credibility.
5The following questions require determination on this motion:
Are the plaintiff’s solicitor-client communications with his defence lawyer relevant to assessing whether the withdrawal of the charges was favourable to the plaintiff?
Did the plaintiff waive solicitor-client privilege?
Is the plaintiff required to seek the records of the cellphone that was in his possession at the time of his arrest?
6For the following reasons, the court concludes the questions concerning the plaintiff’s communications with his defence lawyer were properly refused. The information sought by the defendant is not relevant to the issues in this action and moreover, is protected by solicitor and client privilege that was neither expressly nor implicitly waived in this proceeding. The plaintiff has already satisfied the undertaking concerning cellphone records. That cellphone and/or data plan was registered to another individual. Any further quest for that data should be sought through a 30.10 motion against the cellphone owner and/or data provider.
Background
7In October 2013, defendant officers had two individuals under surveillance for suspected drug trafficking. A confidential informant told police the two suspects used a Checker Limousine for the drug trafficking activities. On October 2, 2013, police saw the suspects enter a Checker Limousine operated by the plaintiff. The plaintiff drove the pair to Toronto, where police observed a suspected drug trafficking transaction. Limousine dispatch told police they had no record of the plaintiff’s activity that day and advised that drivers had to report out-of-town fares to dispatch. Police stopped the vehicle on its return to London from Toronto. On searching the vehicle, they found a brick of cocaine, a handgun and ammunition. The plaintiff and his two passengers were arrested on weapons and drug trafficking offences.
8In March 2014, the plaintiff provided a Statutory Declaration which he prepared with the assistance of his defence counsel. He swore he had no knowledge of or involvement with the presence of the firearm, drugs, and ammunition in his vehicle. He did not declare he did not previously know the passengers; however, he claimed he had never been involved with them in trafficking cocaine or possessing firearms. The Crown withdrew the charges against the plaintiff in March 2015.
9The plaintiff asserts there was no basis for his arrest and that the withdrawal of the charges illustrates the prosecution ended in his favour. In this action, he claims he did not know the passengers at all until he arranged for the fare the day before his arrest. He contends he did not have to report an out-of-town fare to the Checker dispatch.
10The police maintain they had reasonable and probable grounds to arrest the plaintiff. The defendant also contends that notwithstanding the plaintiff’s representations in the Statutory Declaration, the evidence to date puts the plaintiff’s credibility into question. The defendant asserts the plaintiff, in fact, knew one of the co-accused.
11Cellphone records apparently show a series of texts between the plaintiff and a co-accused in the days leading up to the trip to Toronto. The content of those texts suggests familiarity between the parties and that the plaintiff implicitly knew the co-accused’s address without having to be told where to pick him up. The plaintiff also claimed on examination that dispatch did not require him to report out-of-town fares; however, this is contradicted by the company’s written policy. Police seized the cellphone in the plaintiff’s possession at the time of his arrest. However, this cellphone was the property of the plaintiff’s friend, who has since reportedly left the country. Police retained the cellphone as evidence; however, disposed of the cellphone pursuant to a forfeiture order before it could be examined for the purposes of this lawsuit.
12At the plaintiff’s initial examination for discovery in July 2019, he undertook to obtain a narrative from his defence lawyer to explain the disposition of the charges against the plaintiff. The plaintiff’s defence lawyer prepared a summary of the criminal proceedings for the plaintiff’s use in this proceeding. The court understood this summary largely represented a chronology of the events between the plaintiff’s arrest and withdrawal of the charges. The summary reportedly refers to the defence lawyer’s memos of various meetings or stages of the prosecution. The summary itself was not included in the motion record for the court’s review.
13The plaintiff has discontinued his action against the province and Canada. The London Police Services Board is the remaining defendant.
The Motion
14The central issue on this motion relate to questions about the plaintiff’s communications with his defence counsel.
15The refusals pertain to: 1. Production of the defence lawyer’s memos; 2. Whether the plaintiff told his defence lawyer that he had seen the co-accused on a number of occasions before the arrest; 3. Whether the plaintiff’s defence lawyer was aware the plaintiff had provided fares to his co-accused on at least four occasions before the plaintiff’s arrest; and 4. Whether the plaintiff would request the records for the cellphone he was using at the time of his arrest.
Analysis
1. Are the plaintiff’s solicitor-client communications with his defence lawyer relevant to assessing whether the withdrawal of the charges was favourable to the plaintiff?
16The defendant submits this evidence is relevant to determining whether the withdrawal of the charges was favourable to the plaintiff. The court must examine the circumstances surrounding the withdrawal of the charges to try to understand the underlying reasons for the outcome: Romanic, supra, at para. 7.
17The plaintiff submits the questions are irrelevant to the issues in dispute.
18The court understands the defendant’s desire to explore the circumstances surrounding the negotiations that led to the withdrawal of the charges. The defendant has flagged some conflicting evidence that questions the plaintiff’s credibility. However, in my view, the defendant has conflated the issue of the plaintiff’s guilt on the criminal charges (or, in other words, whether the police had reasonable and probable grounds) with the issue of the favourability of the termination of the charges.
19Historically, some courts held that a withdrawal of charges or a compromise or settlement between parties that has the effect of concluding a prosecution did not amount to a favourable termination for the purpose of maintaining an action for malicious prosecution. However, in Mammoliti v. Niagara Regional Police Service, 2007 ONCA 79, the Court of Appeal held that the fact of such an arrangement, agreement or compromise should not end the court’s analysis of an action for malicious prosecution. There should be a further analysis into the underlying reasons on the part of the Crown and police for entering into such an arrangement, agreement or compromise: Mammoliti, supra at para 53. Considerations central to a determination of the favourability of the outcome to an accused include: 1. Were there state efforts to pervert justice; 2. Was there an abuse of negotiating power; and 3. Was there a good faith resolution: Mammoliti, supra, at paras. 53-56.
20Accordingly, what the plaintiff may or may not have told his defence lawyer about his prior association with the co-accused is not probative of whether the withdrawal of the criminal charges was favourable to the plaintiff. Nor is it probative of the police’s knowledge of the evidence at the time they placed him arrest and whether they had reasonable and probable grounds for the arrest.
2. Did the plaintiff waive solicitor-client privilege?
21Even if my decision on the first issue is incorrect, I am not satisfied the plaintiff waived solicitor and client privilege through the production of his lawyer’s summary of the criminal prosecution. That summary or narrative was not made available for my review. I understand from reviewing the transcript it was produced pursuant to an undertaking and for the purposes of this lawsuit to assist the parties in ascertaining the chain of events and when certain charges were addressed. The court was not given to understand this summary produced any part of the privileged communications.
22The defendant relies upon Cromb v. Bouwmeester, 2014 ONSC 5318 for the proposition that waiver of part of a privileged document may also result in an implied waiver of the entire document or communication where this is required in the interests of fairness and consistency. However, Cromb involved litigation privilege and specifically noted the analysis is case-specific: Cromb, supra at para. 66.
23Furthermore, solicitor-client privilege yields only in certain clearly defined circumstances, as an “absolute necessity”: R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14 at 459.
24I am not satisfied the plaintiff waived his solicitor-client privilege in these circumstances. He has not raised his state of mind or his knowledge of the case. I cannot see that either is engaged by any of the essential elements of the alleged torts or the matters in issue. This is unlike Leadbetter v. Ontario, 2004 14107 (ON SC), where the material issues related to whether and when the plaintiff’s former defence lawyer(s) knew certain facts and whether they imparted that information to him. In this claim the plaintiff asserts the defendant lacked grounds to charge him. This assertion does not trigger an absolute necessity to require his defence lawyer to divulge his notes and answer the defendant’s questions.
25I also accept the plaintiff’s position that such relief on this motion should have been made on notice to his defence counsel pursuant to r. 30.10.
3. Is the plaintiff required to seek the records of the cellphone that was in his possession at the time of his arrest?
26The defendant police officers seized a cellphone from the defendant at the time of his arrest. He did not own the cellphone or data plan; however had it on loan from a friend, apparently, another co-accused. Data from that cellphone number ostensibly shows the plaintiff regularly communicated by text with the co-accuseds in the relevant times surrounding the criminal activity in issue. However, the defendant destroyed the cellphone pursuant to its forfeiture policy before the resolution of this claim.
27The plaintiff submits he provided all information within his power, possession or control relevant to obtaining the cellphone records. He provided the identity of the person who owned the phone and data plan; however, that person has now departed for Africa and has no current contact information. He notes the cellphone has since been destroyed by the defendant pursuant to a forfeiture order and argues this is further evidence of their negligence in this affair.
28The court will not delve into the merits of when and why the cellphone was destroyed or the potential consequences of the destruction. For the purposes of this motion, it suffices that the plaintiff is acknowledged to not be the account holder and that the cellphone itself has since been destroyed pursuant to police procedure. The plaintiff provided the last known contact information about the owner of the cellphone. The question is answered. The court has no evidence on this record from which to conclude the plaintiff can reasonably be ordered to obtain these records. He is under an ongoing disclosure obligation if his knowledge of the plaintiff’s contact information or whereabouts changes. If the defendant garners further information as to the identity of the cellphone provider, that can be addressed in a further motion.
Disposition
29The defendant’s motion to compel answers to questions 107. 154, 168 and 363-369 of the plaintiff’s examination for discovery is dismissed.
30The parties are encouraged to resolve costs. In the event costs are not settled, the plaintiff shall deliver his submissions by March 7, 2022, and the defendant its submissions by March 14, 2022. Written submissions shall be no more than two pages in length, excluding cost outlines.
Justice K. Tranquilli
Date: February 25, 2022