COURT FILE NO.: CV-13-3480-0000 CV-13-0537-0000

DATE: 2023 09 05

SUPERIOR COURT OF JUSTICE – ONTARIO

7755 Hurontario Street, Brampton ON L6W 4T6

RE:

THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA, Plaintiff

AND

CANADA BORDER SERVICES AGENCY, THE REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD, and THE ATTORNEY GENERAL OF CANADA, Defendants

and

SANTHA KUMAR MYLABATHULA, Plaintiff

AND

CANADA BORDER SERVICES AGENCY, THE NIAGARA REGIONAL POLICE SERVICE, and THE ATTORNEY GENERAL OF CANADA, Defendants

BEFORE:

Justice Ranjan K. Agarwal

COUNSEL:

Peter Callahan, for the plaintiffs

Derek Edwards, for the defendant Canada Border Services Agency

Mickey Cruickshank, for the defendant The Regional Municipality of Niagara Police Services Board

Karen Watt, for the defendant The Attorney General of Canada

HEARD:

April 25-28, 2023; May 24, 2023; and May 26, 2023

Amended REASONS FOR JUDGMENT

I. Introduction

[1] The border between Canada and the United States is the longest international boundary in the world. There are millions of crossings every year, many of which are non-controversial and unremarkable. But not for Sulochana Shanthakumar and the plaintiff Santha Kumar Mylabathula.

[2] In July 2012, Shanthakumar and Mylabathula, both senior citizens, were detained and arrested by the defendants Canadian Border Services Agency and The Regional Municipality of Niagara Police Services Board for failing to comply with undertakings they had given to the RCMP (specifically, they failed to remain in Ontario). The CBSA and Niagara Police based their arrests on information in the Canadian Police Information Centre system.

[3] That information was dead wrong. The undertakings had been vacated over 7 weeks earlier. But the RCMP, despite its obligation to correct inaccuracies in the CPIC system as soon as possible, didn’t remove this information. The CBSA and the Niagara Police made matters worse when they didn’t verify the information before acting on it, despite their obligation to do so. Assuming the CPIC system information was correct, the CBSA detained and arrested Shanthakumar and Mylabathula for over 3 hours. Then, the CBSA turned them over to the Niagara Police, who arrested and detained Shanthakumar and Mylabathula for another 3 hours, again on the assumed basis that the CPIC system information was valid.

[4] One short phone call at 4am made clear that this information was wrong. Shanthakumar and Mylabathula should never have been detained or arrested.

[5] Mylabathula sued the CBSA, the RCMP (in the name of the defendant The Attorney General of Canada), and the Niagara Police in February 2013. Shanthakumar started her own action against the same defendants in August 2013. Sadly, Shanthakumar passed away before trial, leaving the plaintiff Estate to continue her action. The trials of these actions were heard together.

[6] The main issue is whether the defendants acted reasonably in detaining and arresting Shanthakumar and Mylabathula. No, they didn’t—their actions fell below the standard of care of a reasonable police officer in similar circumstances.

[7] Shanthakumar and Mylabathula were detained, handcuffed, read their rights, cautioned, frisked, and jailed because of a bureaucratic snafu by the RCMP, compounded by the CBSA’s and the Niagara Police’s rush to judgment. For over 6 hours, Shanthakumar and Mylabathula suffered fear, stress, humiliation, and embarrassment because the defendants didn’t know how or didn’t care to use the CPIC system properly.

[8] I order and adjudge the RCMP to pay general damages of $25,000 and punitive damages of $5000 to each of Mylabathula and the Estate. I further order and adjudge the Niagara Police to pay general damages of $15,000 and punitive damages of $5000 to each of Mylabathula and the Estate. I would have also ordered the CBSA to pay general damages of $15,000 and punitive damages of $5000 to each of Mylabathula and the Estate, but I find that the claim against the CBSA is statute-barred.

[9] I’m sorry for what happened to Shanthakumar and Mylabathula. It’s unacceptable that our national, local, and border police had such a cavalier attitude towards the rights of these elderly citizens.

II. Background

A. Background Facts

1. The CBSA Arrests Shanthakumar and Mylabathula

[10] On July 4, 2012, Shanthakumar and Mylabathula visited the U.S. That evening, they returned to Canada through the Lewiston-Queenston Bridge in Niagara-on-the-Lake. Under section 11(1) of the Customs Act, RSC 1985, c 1 (2nd Supp), “every person arriving in Canada shall…enter Canada only at a customs office designated for that purpose that is open for business and without delay present himself or herself to an officer and answer truthfully any questions asked by the officer….”

[11] The inspection booth at the border didn’t appear “open for business”—there were no cars in the lane and, according to Mylabathula, the lights weren’t on and no one was in the booth. Shanthakumar and Mylabathula saw another booth that had lights on and cars lined up. They drove to that booth, thinking it was the inspection booth.

[12] Suddenly, Shanthakumar and Mylabathula were surrounded by CBSA officers, who accused them of “running the port”. Under section 99.1 of the Customs Act, CBSA officers have the power to stop persons entering Canada “within a reasonable time” and question them if the officers have reasonable grounds to believe the person has breached section 11(1).

[13] Officer Andrea Seabrook and Officer Levi Richer directed Shanthakumar and Mylabathula to the secondary inspection canopy, where they searched Shanthakumar and Mylabathula’s car. Officer Seabrook found Shanthakumar and Mylabathula had no goods to declare; they didn’t buy anything in the U.S.; they had no alcohol, tobacco, food, plants, or animals; and they had no firearms, weapons, pepper spray, commercial goods, or currency more than C$10,000.

[14] As part of this inspection, Officer Seabrook ran Shanthakumar and Mylabathula’s passports through Integrated Border Inquiry, an application that searches multiple databases, including the CPIC system. The CPIC system returned a “hit” for Shanthakumar and Mylabathula.

[15] Two year earlier, Shanthakumar and Mylabathula were each charged by the RCMP with fraud under section 380(1) of the Criminal Code, RSC 1985, c C-46. They were released from custody on their undertakings to “remain within the Province of Ontario”. In May 2012, the Crown stayed the proceedings against each of them. Under section 579(1) of the Criminal Code, their undertakings were vacated. But the RCMP didn’t remove the undertakings from the CPIC system.

[16] Officer Seabrook didn’t verify the information from the CPIC system with the RCMP. Instead, around 1015pm, acting as a “peace officer” under the Criminal Code and Customs Act, she arrested Shanthakumar and Mylabathula for breach of conditions (or failure to comply with an undertaking—an offence under section 145(4) of the Criminal Code). She put them in jail after reading them their rights and caution, and frisking them.

2. The CPIC System

[17] The CPIC system provides information about crimes and criminals. It’s a national information-sharing system. The RCMP manages the CPIC system for the Canadian law enforcement community.

[18] CPIC grants law enforcement agencies access to the CPIC system under a memorandum of understanding between CPIC and the agency. The CBSA entered into an MOU with CPIC in September 2007; the Niagara Police entered into a similar MOU in May 2011.

[19] The MOUs obligate the CBSA and Niagara Police to ensure that officers are given “appropriate training” before accessing the CPIC system. CPIC also makes clear that its information is for “investigational purposes only” and should “not be acted upon” without “verification” from the originating agency. The originating agency has the responsibility of maintaining “accurate, up-to-date information” in the CPIC system.

[20] The MOUs provide that the agencies’ access to the CPIC system will be in “accordance with CPIC policy”, which is documented in the CPIC Policy Manual. The CPIC Policy Manual requires originating agencies to confirm CPIC records “promptly, 24 hours a day, 7 days a week” and correct inaccurate information “promptly”, “as soon as possible”, and “at the earliest opportunity”. It also repeats the agencies’ obligation to verify records with the originating agency before “acting upon” the information. The CPIC Policy Manual includes a CPIC Code of Ethics, which includes a directive called “Hit Confirmation”—“no action be taken, based on a record in CPIC, without the agency making the hit first confirming its validity and accuracy with the agency owing the data.” The CPIC system is subject to human failings, meaning that the information in the system may be wrong.

[21] In this case, the RCMP played a dual role—it administers the CPIC system and, because it charged Shanthakumar and Mylabathula with fraud, it was the originating agency for the information about them on the CPIC system.

[22] In sum, to avoid problems, CPIC requires originating agencies to correct inaccurate information promptly, and agencies using the system to verify the information before acting on it:

• the RCMP, as the agency owning the data about Shanthakumar and Mylabathula’s undertakings (or the originating agency), had a responsibility to correct inaccurate information as soon as possible

• the RCMP also had a duty to verify the information promptly

• the CBSA and Niagara Police, as agencies using the CPIC system, had a duty to give their officers appropriate training on the CPIC system

• that training included informing officers that the CPIC system information may be unreliable or wrong and requiring that the information be verified before acting on it

[23] To assist in verification, hits from the CPIC system include contact information for the originating agency. In this case, the CPIC system information included a contact phone number for Corporal Albert Yang, who was part of the fraud investigation, and the RCMP’s Toronto North detachment.

3. The Niagara Police Arrest Shanthakumar and Mylabathula

[24] The CBSA and the Niagara Police have entered into an Arrest Protocol governing arrests in Niagara Region, including at the Lewiston-Queenston Bridge. Under the Arrest Protocol, the Niagara Police process CBSA prisoners who have been turned over to it and charged with a criminal office. Processing includes fingerprinting, photographing, detention, transport, laying of charges, and release.

[25] Around 1115pm, Officer Seabrook contacted the Niagara Police to turn over Shanthakumar and Mylabathula. The Niagara Police dispatched Detective Constable David Gittings around 1252am. He also did a CPIC system search, which showed Shanthakumar and Mylabathula’s undertakings. Based on this hit and information from Officer Seabrook, he arrested Shanthakumar and Mylabathula around 110am. Though Constable Gittings’s report says the CPIC system information was “valid”, he didn’t verify this information until much later.

[26] Either during the arrest or while being transported to the police station, Shanthakumar and Mylabathula told Constable Gittings that the fraud charges had been “dropped”. They asked to talk to their criminal defence lawyers, Andrew Stastny and Aaron Wine.

[27] After reaching the station and jailing Shanthakumar and Mylabathula, Constable Gittings contacted the RCMP to verify that the fraud charges had been stayed. This call was sometime after 134am (which is when he cautioned Shanthakumar and Mylabathula). The Niagara Police called Shanthakumar’s lawyer at 332am. As discussed below, the RCMP finally verified the CPIC system information around 4pm.

4. The RCMP Verifies the CPIC Information is Wrong

[28] At 355am, Superintendent A.J. (Andy) White received a call from the RCMP’s Ontario headquarters asking him to call Constable Gittings about Shanthakumar and Mylabathula’s undertakings. He spoke to Constable Gittings at 4am. Superintendent White knew, right there and then, that the charges against Shanthakumar and Mylabathula had been stayed in May 2012 because they were, coincidentally, talked about at an internal meeting that week. He told Constable Gittings that Shanthakumar and Mylabathula could be released unconditionally as the undertakings were no longer valid. Superintendent White apologized to Constable Gittings “for any confusion”. He didn’t ask Constable Gittings to pass on apologies to Shanthakumar and Mylabathula.

[29] Constable Gittings drove Shanthakumar and Mylabathula back to the Lewiston-Queenston Bridge around 420am. On the way, Constable Gittings told Shanthakumar that their release was delayed because he had an obligation to verify the CPIC system information.

[30] By 1030am the next morning, the entries regarding Shanthakumar and Mylabathula’s undertakings were removed from CPIC. It took less than an hour between Superintendent White recommending the information be removed and an RCMP officer doing so.

[31] Shanthakumar and Mylabathula’s car was seized, under section 110(2) of the Customs Act, because “said conveyance was removed from Customs Office without having been released by an officer in contravention of the Customs Act.”

[32] Shanthakumar and Mylabathula were required to pay $1000 to CBSA under section 131 of the Customs Act for return of their car. They left the border crossing at 540am on June 5th, around 8 hours after they presented themselves for inspection. The CBSA decided not to charge Shanthakumar or Mylabathula for breaching section 11(1) of the Customs Act because it accepted their explanation about being confused and there were no aggravating factors (given there was no failure to comply with an undertaking).

[33] In a March 2013 letter concluding that there was “no misconduct on the part of CBSA officers”, the CBSA extended its “sincere regrets” to Shanthakumar for “any inconvenience or anxiety she was caused.” Shanthakumar’s request for ministerial review of the $1000 fine under the Customs Act was dismissed in June 2013.

B. Litigation History

[34] Mylabathula started his action in February 2013. The statement of claim was amended twice, the last time in April 2019. The defendants all defended the proceeding. The Niagara Police crossclaims against the CBSA and the RCMP. The CBSA amended its defence in December 2021 to crossclaim against the Niagara Police.

[35] Shanthakumar started her action in August 2013. The claim was amended in October 2016. The defendants all defended the proceeding. Again, the Niagara Police crossclaims against the CBSA and the RCMP. Shanthakumar died before trial. The Estate continued the action.

[36] In March 2023, the court ordered that the actions be consolidated. No consolidated pleadings were filed. Instead, the actions were heard at the same time.

[37] Just before the trials, the CBSA sought to move for summary judgment dismissing all the claims in the statements of claim against it on the basis that the claims were barred by the limitation period in the Customs Act. Regional Senior Justice Ricchetti denied the request—it would delay the trials and the CBSA hadn’t, in the 10 years since the claims were started, sought to move for judgment.

[38] The trials were heard over 6 days. Mylabathula testified on behalf of himself and the Estate. The defendants called 7 witnesses: Superintendent White and Officer Torberne Williams, for the RCMP; Officer Duncan Small, Investigator Michelle Axe-Scott (who testified by video conference), Officer Seabrook, and Chief of Operations Mohsan Bokhari, all for the CBSA; and Constable Gittings (who testified both in-person and by video conference), for the Niagara Police.

[39] For the trials, the plaintiffs and the Niagara Police uploaded document briefs. The RCMP also had a hardcopy document brief at trial. These weren’t agreed trial document briefs, in that the parties hadn’t agreed that any of the documents were admitted as authentic and admissible. The parties didn’t confer on the questions in Girao v Cunningham, 2020 ONCA 260, at para 33. The parties also uploaded their documentary and oral discovery, neither of which should have been done given rules 30.05 and 31.11 of the Rules of Civil Procedure.

[40] As a result, I didn’t make any of the briefs exhibits. Instead, I directed the parties to provide the court with the documents as they were admitted into evidence, which were organized in a binder provided by the lawyers. To that end, the binder acted merely as a “convenient repository of documents”. See Blake v Dominion of Canada General Insurance Co., 2015 ONCA 165, at para 54.

[41] As the trials proceeded, there was no major challenge to the authenticity or admissibility of any of documents that were made exhibits, so it’s unclear why the parties couldn’t make a Girao agreement in advance. In civil and family law actions, the use of a joint document brief is a best practice. The parties should be able to agree that most documents are authentic. They should also be able to agree that some or most documents are admissible, subject to exceptions for hearsay evidence. That the parties didn’t even confer on a joint document brief was regrettable.

C. Preliminary Issue #1: What Causes of Action Are Being Claimed by the Plaintiffs?

[42] Mylabathula pleads the torts of false imprisonment, negligence, and breach of statutory duty, and breach of section 9 of the Canadian Charter of Rights and Freedoms. Though Mylabathula raises racial profiling as a basis for aggravated and punitive damages, he doesn’t claim for breach of section 15(1) of the Charter.

[43] The Estate pleads the torts of false imprisonment, negligence, breach of statutory duty, conspiracy to breach statutory duty, and malicious prosecution, and breach of sections 6(1) (mobility), 7 (life, liberty, and security of the person), 8 (search or seizure), 9 (detention or imprisonment), 10 (arrest or detention), 11 (delay), and 15(1) (equality) of the Charter.

[44] In closing argument, the plaintiffs’ lawyer conceded that the plaintiffs were only claiming negligence, breach of statutory duty, and breach of the plaintiffs’ rights under section 7, 8, 9, 10, and 15(1) of the Charter. In oral submissions, the plaintiffs’ lawyer further accepted that there’s no cause of action for mere breach of statutory duty. See Holland v Saskatchewan, 2008 SCC 42, at para 9.

[45] The defendants argue that the Estate can’t claim for breach of Shanthakumar’s Charter rights. The Estate responds that it can do so because Shanthakumar started the proceeding and pleaded breach of her Charter rights before she died.

[46] In Hislop v Canada, 2007 SCC 10, at para 73, the Supreme Court of Canada held that estates lack standing to start claims under section 15(1) of the Charter. Estates aren’t “individuals” for section 15(1) but a “collection of assets and liabilities of a person who has died.” The two exceptions identified in Hislop (an appeal from judgment and where the individual dies after the closing argument but before judgment is entered) don’t apply here. Given the Supreme Court’s statement in Hislop that “it may be said that s. 15 rights die with the individual”, it doesn’t matter that Shanthakumar started the proceeding—unfortunately, now that she has died, her claim under section 15(1) has also “died”.

[47] The same analysis applies to section 7 of the Charter. Corporations “and other artificial entities” aren’t covered by section 7. See Quebec (AG) v 9147-0732 Québec inc., 2020 SCC 32, at para 15; Giacomelli (Estate) v Canada (AG), 2008 ONCA 346, at para 16.

[48] That leaves sections 8, 9, and 10. Though these sections use the word “everyone”, these rights are, by their very nature, unavailable to corporations and estates. The right not to be “arbitrarily detained or imprisoned” in section 9 and other rights that arise only on “arrest or detention” in section 10 can’t be enjoyed by the Estate because the Estate can’t be and wasn’t detained, imprisoned, or arrested. See Peter W. Hogg & Wade Wright, Constitutional Law of Canada, 5th ed, (Toronto: Thomson Reuters Canada Ltd., 2007) (loose-leaf updated August 2022, release 1) §37.2. See also FRN v Alberta, 2014 ABQB 375, at para 4.

[49] For the same reason, I find that the Estate lacks standing to make a claim for breach of Shanthakumar’s section 8 rights. Though an estate, like a corporation, can claim that its section 8 rights have been violated by an unlawful search, that’s not the case here. The Estate wasn’t searched—Shanthakumar was and, sadly, she has since died meaning that her claims under the Charter have died too.

[50] In sum, the Estate’s claim sounds only in negligence, and Mylabathula’s claim sounds in negligence and breach of section 9 of the Charter.

D. Preliminary Issue #2: Is the Claim Against the CBSA Statute-Barred?

[51] Mylabathula started his proceeding against the CBSA around 7 months after he was detained and arrested. Shanthakumar started her claim around 13 months after the incident.

[52] The Customs Act, s 106(1), creates a limitation period for actions against CBSA officers:

No action or judicial proceeding shall be commenced against an officer for anything done in the performance of his duties under this or any other Act of Parliament or a person called on to assist an officer in the performance of such duties more than three months after the time when the cause of action or the subject-matter of the proceeding arose.

[53] The CBSA argues that the plaintiffs’ claims are statute-barred because they were started more than 3 months after the plaintiffs discovered their claims against the CBSA. The plaintiffs respond that this limitation period only applies to claims made against an “officer”. They haven’t named the CBSA officers as defendants but sued the CBSA for vicarious liability. Alternatively, they argue that their claims are for direct liability against the CBSA—the plaintiffs submit in closing argument that the CBSA’s negligence is “found in the policies and procedures of the CBSA, and/or the failure of the CBSA to properly or adequately train their employees in the fundamental aspects of their jobs”.

[54] As a result, the plaintiffs argue that the limitation period is two years under Ontario’s Limitations Act, 2002, SO 2002, c 24, Sched B. There’s no dispute that the claims are statute-barred if they are governed by the Customs Act. Conversely, the CBSA has no limitations defence if the claims aren’t governed by the Customs Act.

[55] To begin, the plaintiffs didn’t plead claims for negligent supervision or negligent training. Indeed, the words “supervision” and “training” don’t appear in either of the plaintiffs’ statements of claim. This theory appears to have emerged from Officer Seabrook’s and Chief Bokhari’s evidence at trial. The plaintiffs didn’t move for leave to amend their statements of claim. As a result, there are no direct liability claims pleaded against the CBSA.

[56] There’s no binding authority from Ontario that interprets and applies the limitation period in the Customs Act. In 144096 Canada Ltd. v Canada (AG) (2003), 2003 39708 (ON CA), 63 OR (3d) 172 (CA) (an appeal from a summary judgment motion), the plaintiff made several arguments about the inapplicability of section 106 of the Customs Act. He argued that the Customs Act only applies to officers of the Crown, and not the Crown itself. The Court of Appeal didn’t decide that specific issue. The Court also left open the possibility that if a Crown officer acted in bad faith or with malice, they could be acting in the “course of employment” but not “in the performance of [their] duties” such that section 106(1) doesn’t apply. Finally, the plaintiff argued that section 106(1) doesn’t apply to Charter claims—the Court also didn’t decide this issue because it dismissed those claims on their merits.

[57] The Federal Court of Appeal considered the application of section 106 of the Customs Act to claims for damages in Ingredia SA v Produits Laitiers Advidia Inc, 2010 FCA 176, at paras 31-41. The Crown argued that the plaintiff’s claim was statute-barred under section 106. The Federal Court of Appeal applied this rubric to claims against the Crown for tortious acts by Customs Act officers:

• section 32 of the Crown Liability and Proceedings Act, RSC 1985, c C-50, provides that where the cause of action arises in a province, the laws relating to prescription and the limitation of actions in that province applies

• that said, section 32 of the CLPA provides that where the relevant time-bar is found in that Act or “in any other Act of Parliament”, those provisions shall apply

• when a person has a cause of action which arises by reason of acts or omissions of officers for anything done in the performance of their duties, such actions must be commenced within three months of the cause of action having arisen under section 106 of the Customs Act

• the Crown can only be held liable where there’s liability of the part of one of its “servants” (see sections 3(a)(i), 3(b)(i), and 10 of the CLPA)

• under section 24(a) of the CLPA, in defending their liability, an “officer”, as defined at section 2(1) of the Customs Act, has a right to avail themselves of the limitation period found in section 106(1) of the Act

[58] In Stubicar v Canada, 2012 FC 1393, aff’d 2013 FCA 239, the Federal Court dismissed the plaintiff’s claim against the Crown for breach of her Charter rights by CBSA officers at the Calgary International Airport as statute-barred. In that case, the court held that section 106 of the Customs Act is “broad enough to cover any act performed” by a border services officer at the border crossing (at para 22).

[59] On the scope of section 106(1), in Nungwana v Canada (AG), 2020 BCSC 1634, the Supreme Court of British Columbia held that the limitation period includes “alleged wrongdoing or illegality” (i.e., tort claims) but not “conduct amounting to misfeasance in public office, with malice and for a clearly improper purpose” (at para 126). I agree—misfeasance is necessarily outside the “performance of [their] duties.” This conclusion also accords with the Court of Appeal’s obiter view in 144096.

[60] I find that the plaintiffs’ claims against the CBSA are statute-barred. The plaintiffs don’t plead direct liability. The plaintiffs’ claims, as pleaded, are for the CBSA’s vicarious liability for the conduct of its officers. These claims, except for allegations of misfeasance, must be started within 3 months of when the claims were discovered, even though the plaintiffs didn’t name the officers as defendants. The claims were started after the limitation period expired. As I explain below, they haven’t proven their misfeasance (racial profiling) claims.

[61] Notwithstanding my dismissal of the plaintiffs’ claims against the CBSA, I discuss and analyze the CBSA’s liability on the merits: (a) the facts of the CBSA’s conduct are too intertwined to be extricated; (b) the merits of the plaintiffs’ claims against the CBSA were litigated to trial; and (c) my conclusions on the scope and application of section 106 of the Customs Act is a matter of first impression for the Ontario courts.

E. Credibility

[62] Credibility and reliability are different. Credibility has to do with a witness’s veracity; reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue isn’t credible can’t give reliable evidence on the same point. Credibility, on the other hand, isn’t a proxy for reliability: a credible witness may give unreliable evidence. See R v GF, 2021 SCC 20, at para 82.

[63] The events happened over 10 years ago. It’s unsurprising that all of the witnesses had trouble giving accurate and complete observations about the events. Their memories have failed given the passage of time. In my analysis below, I discuss the witnesses’ credibility on the disputed facts. That said, the Niagara Police urge me to find that Mylabathula’s alleged evasiveness about his criminal record make the main points of his evidence unbelievable or unreliable. I disagree—Mylabathula’s criminal record discloses three charges dating to 1978, two of them relating to “road rage” incidents, and none of them resulting in a conviction. His inability to recall these minor charges is no surprise given the passage of time and their irrelevance to the issues at trial.

III. Analysis and disposition

A. Cause of Action #1: Negligence

[64] In a successful negligence action, the plaintiff must prove that:

(a) the defendant owed them a duty of care;

(b) the defendant’s behaviour breached the standard of care;

(d) the damage was caused, in fact and in law, by the defendant’s breach.

See Deloitte & Touche v Livent, 2017 SCC 63, at para 77.

[65] The defendants’ closing arguments refer to both the tort of negligence and the tort of negligent investigation (the plaintiffs plead only negligence). The tort of negligent investigation requires that a criminal proceeding be started by the defendant and terminated in favour of the plaintiff—the plaintiff is charged with crime, and the proceeding ends with an acquittal, a stay of proceedings, or a withdrawal of the charges. See e.g., Hill v Hamilton-Wentworth Reg’l Police Services Bd., 2007 SCC 41; Romanic v Johnson, 2013 ONCA 23. Though Shanthakumar and Mylabathula were “investigated” by the CBSA and the Niagara Police, they were never charged. As a result, the tort of negligent investigation doesn’t apply here.

1. Issue #1: The defendants owed Shanthakumar and Mylabathula a duty of care.

[66] The CBSA and the Niagara Police concede that they owed Shanthakumar and Mylabathula a duty of care. The RCMP argues that it didn’t owe them a duty of care based on policy reasons.

[67] I disagree. I find that the RCMP, in its capacity as the originating agency of the information about Shanthakumar and Mylabathula on the CPIC system, owed them a duty of care like the CBSA and the Niagara Police. The RCMP isn’t being sued in its capacity as an administrator of the CPIC system—it’s being sued for failing to remove the information as soon as possible.

[68] The test for determining whether a person owes a duty of care involves two questions:

(a) does the relationship between the plaintiff and the defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and

(b) if so, are there any residual policy considerations which ought to negate or limit that duty of care?

See Hill, at para 20.

[69] The RCMP concedes that Shanthakumar and Mylabathula’s losses were reasonably foreseeable and there’s a relationship of proximity.

[70] When the duty of care at issue isn’t novel, there’s no need to proceed through the full two-stage negligence framework. See Nelson (City) v Marchi, 2021 SCC 41, at para 19. I haven’t been provided any binding authority establishing a duty of care between an agency originating information in the CPIC system and persons whom that information is about. As a result, I consider the second stage of the duty of care analysis. For that stage, the Supreme Court of Canada has identified several external factors:

• whether the law already provides a remedy

• whether recognition of the duty of care creates “the spectre of unlimited liability to an unlimited class”

• whether there are “other reasons of broad policy that suggest that the duty of care should not be recognized” (see Livent, at para 40)

[71] The RCMP relies on Annett v Enterprise Rent-A-Car Canada Ltd., 2019 ABQB 734, which is a CPIC system case. There, the Alberta court considered whether the originating agency’s actions involved police discretion as a policy issue that may negate its duty of care. The RCMP argues that its function here was administrative, not discretionary.

[72] In Hill, at para 51, the Supreme Court of Canada rejected the “discretionary nature of police work” as a reason to deny the existence of a duty of care. In any event, in Annett, the Alberta court found that the originating agency’s conduct “does not involve the discretionary authority of the police or police officers’ investigative judgment, but administrative authority respecting the entry, disclosure, and removal of information on CPIC” (at para 117). The court in Annett held that there were no other residual policy considerations that negated the originating agency’s duty of care. I agree with the Alberta court’s finding that an originating agency’s conduct isn’t discretionary and, in any event, discretion doesn’t negate a police agency’s duty of care.

[73] The RCMP argues that there’s another external factor that negates the RCMP’s liability: “the verification requirement shifts the risk from the RCMP administrators of CPIC to the police agency accessing the CPIC information – it severs the line of risk between the RCMP…and the Plaintiffs”. In other words, the RCMP shouldn’t owe a duty of care for errors in the CPIC system because plaintiffs can sue the agencies using the CPIC system information.

[74] The RCMP’s argument conflates its role as the administrator of the CPIC system and as the originating agency. Though the MOUs and Policy Manual oblige the agencies using the information to verify it, that doesn’t absolve the RCMP from maintaining “accurate, up-to-date information” in the CPIC system. As the Alberta court said in Arnett, at para 130: “Inaccurate CPIC information can have serious consequences for individuals…. The risk rippling out from inaccurate CPIC information has tremendous geographical breadth. … Bad information can have consequences wherever the bad information is accessed and used.” Shanthakumar and Mylabathula’s arrests show just that.

[75] As a result, there are no residual policy considerations that negate or limit the RCMP’s duty of care, as the originating agency, to Shanthakumar and Mylabathula.

2. Issue #2: The defendants’ behaviour breached the standard of care.

[76] To avoid liability, a defendant must “exercise the standard of care expected that would be of an ordinary, reasonable and prudent person in the same circumstances”. Relevant factors in this assessment include whether the risk of injury was reasonably foreseeable, the likelihood of damage, and the availability and cost of preventive measures. A reasonable person “takes precautions against risks which are reasonably likely to happen”. See Nelson, at para 91. In cases of professional negligence, this rule is qualified by another principle: where the defendant has special skills and experience, the defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling”. See Hill, at para 69.

[77] The appropriate standard of care in police negligence cases is the “overarching standard of a reasonable police officer in similar circumstances”. Police officers can exercise their discretion “as they see fit”, provided they remain within a “range of reasonableness”. They don’t have to be perfect or even “optimum”—urgency and deficiencies of information may lead to “errors in judgment” that cause “unfortunate results”, which won’t breach the standard of care. See Hill, at para 73.

[78] The CBSA and the Niagara Police argue that the Estate and Mylabathula were required to lead expert evidence to inform the court’s determination of the standard of care for agencies using CPIC system information. The general rule is that the content of the standard of care of a professional, including a police officer, will require expert evidence. But there are exceptions to the general rule—expert evidence won’t be required where matters are nontechnical or within the knowledge and experience of the trier of fact. See JH v Windsor Police Services Bd., 2017 ONSC 6507, at para 6.

[79] The CBSA and the Niagara Police also argue that the reasonableness of their conduct should be viewed through the lens of “reasonable and probable grounds” to make an arrest. The police need not establish a prima facie case for conviction before making the arrest. See R v Storrey, 1990 125 (SCC), [1990] 1 SCR 241, at 250.

[80] The requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to some aspects of police work, such as arrest and prosecution, search and seizure, and the stopping of a motor vehicle. See Hill, at para 55. The standard of a “reasonable police officer in all the circumstances” provides a “flexible overarching standard” that covers all aspects of investigatory police work and “appropriately reflects its realities”. See Hill, at para 68.

[81] My determination of the content of the standard of care in this circumstance is informed by:

• the MOUs and Policy Manual (both of which the defendants all agreed to abide by)

• the evidence of Officer Small, Chief Bokhari, and Constable Gittings (all of whom testified that verification is necessary)

• the stage of the investigation here (i.e., investigation and arrest but before laying the charge)

[82] This matter isn’t technical, and is within my knowledge and experience. The reasonable police officer in similar circumstances would:

• if the originating agency, correct inaccurate information as soon as possible

• if the agency using the information, not act on the information or take any action based on the information in the CPIC system without verification from the originating agency

[83] In this case, all three defendants breached this standard of care.

i. The RCMP breached the standard of care.

[84] It was unreasonable for the RCMP to fail to remove the inaccurate information about Shanthakumar and Mylabathula from the CPIC system at the earliest opportunity after the fraud charges were stayed and the undertakings vacated. It was outside the range of reasonableness for the RCMP to leave this information in the CPIC system for over 7 weeks, putting Shanthakumar and Mylabathula’s liberty interests in constant jeopardy.

[85] Officer Williams was assigned to monitor the court proceedings for the fraud charges against Shanthakumar and Mylabathula. On May 14, 2012, the Crown prosecutor told Officer Williams that the charges were being stayed the next day (which they were).

[86] Officer Williams didn’t remove the information about the undertakings from the CPIC system because he was waiting for a transcript of the May 15th court proceeding. Officer Williams’s evidence is that he needed written documentation before he could update the CPIC system. Coincidentally, on July 4th (the day Shanthakumar and Mylabathula tried to cross the border), he requested a copy of the transcript from the May 15th court proceedings “to determine what exactly was said in court” about the stay of proceedings. Officer Williams was also under the mistaken belief that someone in the Commercial Crime Section was liaising with the Crown prosecutor and CPIC.

[87] On July 5th, after Superintendent White authorized Shanthakumar and Mylabathula’s release, the RCMP updated the CPIC system immediately—it didn’t wait for the transcript or the purported liaison before acting.

[88] In closing argument, the RCMP submitted that the onus lies on accused persons to ensure that they aren’t subject to conditions that might impede their travel to the U.S. until the CPIC system is updated. That is a remarkable argument that I can’t accept. First, under the Criminal Code, the conditions on Shanthakumar and Mylabathula were vacated the moment the court stayed the charges against them. They were, under our law, free to leave Ontario from the courthouse if they wanted. Given that failure to comply with an undertaking is an indictable offence and could lead to imprisonment, the removal of this information from the CPIC system should have been done at the earliest opportunity after the charges were stayed. Shanthakumar and Mylabathula weren’t even told that they were at risk of violating their undertakings.

[89] Second, Shanthakumar and Mylabathula aren’t users of the CPIC system. They and their lawyers can’t access the CPIC system. They have no idea what information about them is on the CPIC system. They have no ability to remove this information. The RCMP’s argument shifts its burden to maintain the information in the system (which it also administers) onto ordinary people, who have no resources or tools to do so.

[90] Third, the RCMP didn’t need to wait for a transcript of the May 15th proceedings to remove the information from the CPIC system. Officer Williams spoke to the Crown prosecutor the day before to know that the charges were being stayed. He could’ve orally verified that the charges were stayed any time after May 15th. He could’ve asked for a copy of the endorsement. Even if he needed the transcript, he didn’t explain why he waited over 7 weeks to ask for a copy, putting Shanthakumar and Mylabathula, unbeknownst to them, in constant legal jeopardy. And then, of course, the information about Shanthakumar and Mylabathula was removed from the CPIC system on July 5th without the need for a transcript of the court proceeding.

[91] The RCMP has allowed an information database to undermine both Shanthakumar’s and Mylabathula’s constitutional guarantee to a presumption of innocence and this court’s orders. As this case shows, it doesn’t matter that Shanthakumar and Mylabathula’s undertakings were vacated. It doesn’t matter that a court endorsed on the record that the Crown had stayed the proceedings against them. If the information remains on the CPIC system, it’s as if these events never happened. Shanthakumar and Mylabathula were arrested by the CBSA and the Niagara Police because the RCMP failed its duty to them.

ii. The CBSA breached the standard of care.

[92] It was unreasonable for the CBSA to detain and arrest Shanthakumar and Mylabathula without verifying the validity and accuracy of the information with the RCMP.

[93] Officer Seabrook’s evidence is that she had reasonable and probable grounds to detain and arrest Shanthakumar and Mylabathula:

• the information from the CPIC system disclosed that they had undertaken to remain in Ontario

• she orally confirmed with them that they had travelled to the U.S. (and weren’t, for example, making a U-turn after entering the port by accident)

[94] At the time, Officer Seabrook was an inexperienced CBSA officer. She hadn’t been provided any training on the need for verification of information from the CPIC system.

[95] Mylabathula’s evidence is that upon arrest, he and Shanthakumar told the CBSA officers that:

• the fraud charges had been dropped and the conditions removed

• his and Shanthakumar’s criminal defence lawyers could confirm this information

• his family could either confirm this information, or send him documents to confirm this information

[96] Officer Seabrook denies that Shanthakumar and Mylabathula told her any of this.

[97] On balance, I prefer Mylabathula’s evidence. Faced with an accusation that they had breached their undertakings, it’s common sense that Shanthakumar and Mylabathula would tell the arresting officers that those charges had been dropped or stayed, and identify sources for that information. There’s no good reason for them to keep this information to themselves while they are detained, arrested, read their rights, cautioned, frisked, and then jailed for an indeterminate amount of time.

[98] Between the ever-present possibility of inaccurate CPIC system information and Shanthakumar and Mylabathula’s denials, the CBSA should have been put on their inquiry. A reasonable police officer in similar circumstances would have called the RCMP to verify this information. Indeed, Chief Bokhari testified that Officer Seabrook should have verified this information, and seemed surprised that she didn’t do so before arresting Shanthakumar and Mylabathula.

[99] The CBSA and the Niagara Police cite several cases involving incorrect CPIC system information. They argue that these cases show that relying on incorrect CPIC system information isn’t legally unreasonable. I disagree as these cases each turn on their facts:

• in Small v Stec, 2009 3565 (Ont Sup Ct), campus police arrested the plaintiff for assault, and not based on incorrect CPIC system information

• in Dao v Ewart, 2009 27820 (Ont Sup Ct), the CBSA verified the information from the CPIC system before contacting the local police to transfer the plaintiff to them

• in Khadikin v Nelson (City), 2003 BCSC 1987, the plaintiff claimed false arrest but didn’t say why, so the police acted reasonably when they arrested him

• in Lord v Canada, 2001 BCSC 212, the police arrested the plaintiff before verification because of his history of “tension and hostility” and the RCMP said the hit was correct when it wasn’t

• in Wall v British Columbia, [1995] BCJ no 1697 (SC), the court found that the steps the police took to determine whether the plaintiff was being truthful that the CPIC system information was incorrect were reasonable

[100] The CBSA could have verified the information first, and then arrested Shanthakumar and Mylabathula. Instead, they chose to arrest them first, which included handcuffing them, reading them their right to counsel, cautioning them, frisking them, and then jailing them, all in the face of Shanthakumar and Mylabathula’s repeated explanations for their claims of innocence. This decision didn’t cause merely an “unfortunate result”—it was a serious deprivation of their liberty in circumstances that could have been entirely avoided if Officer Seabrook had verified the CPIC system (as she was supposed to do).

[101] Shanthakumar and Mylabathula posed no threat to anyone—they were elderly and had no criminal record. Their car had been seized by the CBSA so they couldn’t go anywhere. They complied with the CBSA’s screenings. If their alleged running of the port raised concerns, the search of their car turned up nothing illegal and they explained that the inspection booth didn’t appear open for business. In all these circumstances, it was unreasonable for the CBSA to use the invalid and inaccurate CPIC system information to arrest Shanthakumar and Mylabathula.

iii. The Niagara Police breached the standard of care.

[102] It was also unreasonable for the Niagara Police to detain and arrest Shanthakumar and Mylabathula without verifying the validity and accuracy of the information with the RCMP.

[103] I don’t accept Mylabathula and the Estate’s argument that Constable Gittings should have verified the CPIC system information immediately on being dispatched to the port. It was reasonable for him to go to the port and assess the situation. But, at the port, knowing that CPIC system information can be inaccurate or invalid, it was unreasonable for him to arrest them, there and then, without verifying the information. Constable Gittings formed grounds for the arrest solely based on the CPIC system information and the CBSA’s arrest. His notes states: “The CPIC entry was valid.” But, as he testified, he took no steps to verify that the information was actually valid. It’s unclear how he formed the conclusion that the CPIC system information was valid. And, of course, it wasn’t.

[104] Though Constable Gittings had a right to exercise his discretion as he saw fit, he really only had two choices: verify then arrest, or arrest then verify. He chose the latter even though there was no urgency and knowing that CPIC system information can be unreliable. His actions weren’t a mere “error in judgment” or minor. As his notes disclose, he determined that the CPIC system information was valid without verifying it first, in contradiction of his training, CPIC policy, the MOU between Niagara Police and CPIC, his own understanding as disclosed by his later comments to Shanthakumar, and his actions after jailing them. He knew he had to verify the CPIC system information before acting on it. Given that this was the sole basis for his decision to arrest Shanthakumar and Mylabathula, it was unreasonable.

[105] The CBSA and Niagara Police’s arguments essentially come down to timing—they say that their officers’ conduct was reasonable because the information was eventually verified by Constable Gittings. They argue that “acting upon” the information means that they can arrest suspects so long as they verify the CPIC system information before indicting them. I disagree—the CBSA and the Niagara Police acted on the CPIC system information when they arrested Shanthakumar and Mylabathula but, in the circumstances, there was no reasonable reason for them to do so without first verifying the information. As cases cited in paragraph 99 above disclose, sometimes it’s reasonable to arrest someone based only on information from the CPIC system before verifying it. Not here.

3. Issue #3: Shanthakumar and Mylabathula suffered a loss.

[106] To establish a cause of action in negligence, the plaintiff must show that they suffered compensable damage. Not all damage will justify recovery in negligence. Recovery is available for damage to person and property. Imprisonment resulting from a wrongful conviction constitutes personal injury to the person imprisoned. Other forms of compensable damage without imprisonment may suffice. For example, a plaintiff’s life could be ruined by an incompetent investigation that never results in imprisonment or an unreasonable investigation that does not lead to criminal proceedings. Wrongful deprivation of liberty has been recognized as actionable “for centuries”. See Hill, at para 91.

[107] Mylabathula testified that the arrest made him feel humiliated, angry, and depressed. He now distrusts the police. Friends and family knew about the arrest. He had never been handcuffed before. He also testified that Shanthakumar told friends at work about the arrest and the news spread like “wildfire”. The video evidence of Shanthakumar in the CBSA jail shows her under significant distress—she’s on her knees and sobbing. She told Constable Gittings that the ordeal made her feel like “an animal”.

[108] The defendants don’t argue that Shanthakumar or Mylabathula didn’t suffer a loss. Their arguments around Shanthakumar and Mylabathula’s losses are about the assessment of damages.

4. Issue #4: The plaintiffs’ losses were caused, in fact and in law, by the defendants’ breaches.

[109] The test for showing causation is the “but for” test. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury―in other words, the injury wouldn’t have occurred without the defendant’s negligence. This inquiry is factual. See Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181, at para 8.

[110] If, on a balance of probabilities, the compensable damage wouldn’t have occurred but for the negligence on the part of the police, then the causation requirement is met. See Hill, at para 93. The “but for” causation test must be applied in a robust common-sense fashion. There’s no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Clements, at para 9.

[111] The defendants argue that their conduct didn’t cause Shanthakumar and Mylabathula’s losses. I disagree. But for the RCMP’s failure to remove the CPIC system entry about Shanthakumar and Mylabathula at the earliest opportunity, they wouldn’t have been arrested by the CBSA and the Niagara Police. And but for Officer Seabrook’s and Constable Gittings’s failure to verify the CPIC system information before making an arrest, Shanthakumar and Mylabathula wouldn’t have been jailed.

[112] First, Niagara Police argues that it didn’t cause Shanthakumar and Mylabathula’s losses—if they suffered a loss, it was because the RCMP didn’t remove the undertakings from the CPIC system. As I discuss above, I find that Constable Gittings’s independent failure to verify the CPIC system information about Shanthakumar and Mylabathula caused their detention, arrest, and incarceration by the Niagara Police.

[113] Second, the RCMP argues that Shanthakumar’s and Mylabathula’s losses were caused by their failure to present themselves for inspection. I disagree.

[114] Officer Small and Officer Seabrook testified that Shanthakumar and Mylabathula “ran the port”:

(a) Officer Small was in the primary inspection booth (in lane P8);

(b) the green “open/ouvert” sign was on above the booth and the gate to the lane was open;

(d) a silver car accelerated through the lane without stopping for primary examination;

(e) Officer Small turned on the port runner alarm and called over the radio “a silver Mercedes-Benz with an Ontario plate drove through P8 without stopping” (though Officer Seabrook and Officer Brandon Ernest heard him call about a Lexus);

(f) the car had tinted windows so Officer Small couldn’t see the driver or passengers; and

(g) the car kept driving to the toll booth, where it was stopped by CBSA officers.

[115] Officer Small’s evidence was unreliable. He was shown a video of a silver car driving through a primary inspection lane, taken from the vantage point of an inspection booth. He was unsure whether this video showed the lane he was at that night. He was unsure about the other officer in the video (who exited the other booth after the car drove through the lane). But Officer Small said that the video “reminded” him of what happened that evening. He was putting together an account of what happened based on information from other sources rather than his personal recollections.

[116] The video is time-stamped at 1025pm, an hour after everybody agrees that Shanthakumar and Mylabathula were detained and arrested by the CBSA. Officer Small suggested that timestamp on video may be wrong. The CBSA led no evidence to suggest that the time of the video was anything but 1025pm. Though the CBSA argues that this explanation is reasonable because it accords with Officer Small’s recollection, I disagree. The video shows a silver car driving through the lane and an officer exiting his booth on the other side. It doesn’t show the lane number. It doesn’t show that the booth’s lights or sign were on, or that Officer Small was even in the booth. It doesn’t show the car’s make or model. It doesn’t even show that the car “accelerated through the lane”. There is no sound so there’s no evidence of the alarm or Officer Small calling over the radio.

[117] At best, this video shows that, at 1025pm that night, a silver car drove through the lane and an officer exited his booth as it did. Officer Small relied on this video to refresh his memory but it seems to be of an entirely different event.

[118] As between Officer Small’s evidence and Mylabathula’s evidence, I prefer Mylabathula’s recollection of the events that evening. It doesn’t make sense that Shanthakumar and Mylabathula would “run the port”. As the later inspection showed, they weren’t transporting anything illegal. And they stopped at the booth that they thought was open for business. If they were truly running the port, they would have tried to circumvent the toll booth. They weren’t subject to an undertaking to stay in Ontario, so it’s not as if they were trying to avoid arrest by somehow evading inspection. There’s no dispute that there were no cars in the lane. Officer Small says he was in the booth, but Mylabathula’s evidence is that the booth appeared unstaffed.

[119] I find, as a fact, that the inspection booth didn’t appear to be “open for business” and, as such, Shanthakumar and Mylabathula were justified in presenting themselves for inspection at a booth that appeared to be “open for business”. They didn’t breach section 11 of the Customs Act. They didn’t “run the port”.

[120] Finally, the defendants argue that their breach is too remote to warrant recovery. The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”. See Mustapha v Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114, at para 12. As a result, the plaintiffs must show that it was foreseeable that a person of ordinary fortitude would suffer personal injury from being wrongfully incarcerated.

[121] Hill establishes that a wrongful incarceration will cause personal injury. The RCMP’s failure to remove the undertakings and the CBSA’s and Niagara Police’s failure to verify the CPIC system information led to Shanthakumar and Mylabathula’s wrongful imprisonment. Their losses were reasonably foreseeable to the defendants.

B. Cause of Action #2: Arrest or detention

[122] Everyone has a right not to be arbitrarily detained or imprisoned under section 9 of the Canadian Charter of Rights and Freedoms. Section 9’s prohibition on “arbitrary detention” is meant to protect individual liberty against unjustified state interference. Its protections limit the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification. See R v Le, 2019 SCC 34, at para 25. A detention requires “significant physical or psychological restraint”. See Le, at para 27.

[123] A lawful arrest or detention isn’t arbitrary, and doesn’t infringe section 9 of the Charter, unless the law authorizing the arrest or detention is itself arbitrary. But an unlawful arrest or detention is necessarily arbitrary and infringes section 9 of the Charter. See R v Tim, 2022 SCC 12, at para 22. Specifically, the detention must be authorized by law; the authorizing law itself must not be arbitrary; and the way the detention is conducted must be reasonable. See Le, at para 124.

[124] Mylabathula claims that he and Shanthakumar were racially profiled. A detention or arrest based on racial profiling is one that’s, by definition, not based on reasonable suspicion. Racial profiling occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. See Le, at para 76. Mylabathula only raises racial profiling as grounds for aggravated damages, so I deal with that issue later.

[125] There is no dispute that Mylabathula was detained by the CBSA after they asked him to go to the secondary screening canopy. His detention continued through his arrest by the CBSA. The Niagara Police then detained him until they drove him and Shanthakumar back to the port.

[126] The CBSA’s initial detention of Mylabathula, under the secondary screening canopy, wasn’t arbitrary. I accept that the CBSA had reasonable grounds to suspect that Mylabathula and Shanthakumar had run the port given Officer Small’s call over the radio and alarm. But the CBSA and the Niagara Police didn’t have reasonable grounds to arrest Mylabathula for breach of his undertaking. Again, the failure to verify the CPIC system information — the sole basis for both arrests—was unreasonable given that Officer Seabrook and Constable Gittings knew, or ought to have known, that the CPIC system information could be inaccurate and must be verified before they could act on it.

[127] As a result, I find that Mylabathula’s constitutional right to be free from arbitrary detention or imprisonment was violated by the CBSA and Niagara Police.

C. Damages

[128] In oral submissions, the plaintiffs advised that they seek $40,000 to $60,000 each in non-pecuniary general damages, and up to $100,000 each inclusive of aggravated and punitive damages. The plaintiffs aren’t claiming special damages or pecuniary general damages. The defendants respond that if damages are awarded, they should be in the range of a Small Claims Court award (i.e., collectively less than $35,000). As a result, I’ve based my analysis on the parties’ arguments at trial rather than the heads of damages or amounts claimed in the plaintiffs’ statements of claim.

1. General Damages

[129] Damages serve the purpose of putting the plaintiff in the position they would have been in but for the injury. Non-pecuniary damages can’t be “arithmetically calculated” because they compensate the plaintiff for “intangible losses” arising from loss of “enjoyment of life, esthetic prejudice, physical and psychological pain and suffering, inconvenience, loss of amenities, and sexual prejudice”. See Cinar Corporation v Robinson, 2013 SCC 73, at para 95; McIntyre v Docherty, 2009 ONCA 448, at paras 31-32.

[130] In assessing non-pecuniary damages, the court may look to awards made in analogous cases. See Cinar Corporation, at para 106. That said, each case must turn on its own unique facts. No two personal injury claims are identical, and awarding damages involves an exercise of judgment.

[131] Mylabathula’s evidence discloses feelings of humiliation, anger, and depression. He fears the police. The news about Shanthakumar’s arrest became gossip among her co-workers. During her incarceration, she was visibly distressed, crying, and, in her words, made to feel like an animal. Mylabathula’s evidence about Shanthakumar’s experiences are corroborated, under section 13 of the Evidence Act, RSO 1990, c E.23, by the video of her incarceration and Constable Gittings’s notes.

[132] Shanthakumar and Mylabathula were detained by the CBSA. They were treated like criminals. Their rights were read to them. Frisked. Handcuffed. Cautioned. Thrown into jail for an indeterminate amount of time. As I discuss below, denied a call with their own lawyers. They couldn’t call their daughter, who was waiting for them, to tell her where they were. Arrested again, now by Niagara Police. Cautioned again. Handcuffed again. Driven to a police station in the back of a police car. Jailed for an indeterminate amount of time, again.

[133] That they felt embarrassment, anger, humiliation, and distress is unsurprising. They were traumatized by the defendants’ actions, all for a crime they didn’t commit and, ultimately, because of the defendants’ abject failure to use the CPIC system properly.

[134] The plaintiffs provided me five Ontario cases, adjusted for inflation, that they say support their claim for $40,000-$60,000 in general damages:

Case	Adjusted Award	Circumstances
Al-Harazi v Niagara (Police Serv. Bd.), 2005 15473 (Ont Sup Ct)	$25,521.77	"although the plaintiff was detained for 14 hours overnight, his suffering was mainly composed of mental anguish and humiliation, which occurred while he was incarcerated"
Berketa v Niagara (Police Services Bd.), 2008 2147 (Ont Sup Ct)	$34,480.46	"I find the plaintiff has proved that she has suffered physical and emotional damages as a result of being assaulted by Constable Gurney as he attempted to arrest her. I accept her evidence that she continues to have sporadic nightmares and anxiety when she sees police officers. I find that the bruises and cuts to her hands healed in a period of approximately 3 months. There was no issue that she was not prescribed anti depressants by her physician before this incident. She has testified that she is still taking anti-depressant medication at this time and I accept her evidence that this is due to the incident before the court."
Parsons v Woodfine, 2009 33053 (Ont Sup Ct)	$39,506.14	"I accept that Mr. Parsons did not sustain any serious permanent physical injuries from the assault. But as I have already alluded to, this was a particularly offensive and egregious assault…." "falsely arrested and imprisoned for five days in crowded conditions" and malicious prosecution
Kellman v Iverson, 2012 ONSC 3244	$25,521.77	the damages were assessed in the alternative
Tremblay v Ottawa Police Services Bd., 2016 ONSC 4185	$42,498.05	"These damages are meant to compensate for loss of liberty, loss of time, and the disruption to Mr. Tremblay’s normal routine. They are meant to compensate for the humiliation and assault to his dignity occasioned by being arrested, placed in handcuffs, and searched in full view of his neighbours, with his wife and children close by. They are meant to compensate for his being hauled away to the police station in a police cruiser, relieved of his personal possessions, clothed in prison garb, photographed, fingerprinted, searched, and locked up." "Mr. Tremblay could not get away from the environment in which the trauma occurred, unless he sold his home. He was not obliged to move away as an aspect of mitigation. The family had built their dream home and had every right to remain in it. These damages would have been higher were it not for my finding that some of Mr. Tremblay’s psychological symptoms and loss of enjoyment of life related to continuing anxiety over the civil dispute with his neighbours, and anxiety over the upcoming criminal trial."

[135] These awards show that, today, non-pecuniary damages for police negligence range between $25,000 and $45,000. That said, I’m not bound by this range—no two cases are identical. In assessing the damages here, my analysis is guided by the three purposes of damages under section 24(1) of the Charter:

• compensation, which is discussed above

• vindication, which focuses on the “harm the infringement causes society”

• deterrence, which seeks to “regulate government behaviour, generally, in order to achieve compliance with the Constitution”

See Vancouver (City) v Ward, 2010 SCC 27, at paras 27-29.

[136] Based on these cases, the goals of public law damages, and the facts here, I adjudge and order that:

(a) the Estate’s damages because of the RCMP’s negligence are $25,000 ~~$30,000~~;

(b) the Estate’s damages because of the Niagara Police’s negligence are $15,000;

(d) Mylabathula’s damages because of the Niagara Police’s negligence and breach of his section 9 rights are $15,000.

[137] I would have awarded $15,000 to each of the Estate and Mylabathula in general damages against the CBSA had I not found that the actions against it are statute-barred.

[138] The defendants adduced evidence of Mylabathula’s criminal record to argue that any damages should be reduced. In every case, the charges against Mylabathula were dismissed, withdrawn, or stayed. He’s never been convicted of any crime. I don’t give this evidence and these arguments any weight in my analysis. That Mylabathula was arrested before doesn’t change the fact this detention and arrest were wrongful, breached his rights, and he suffered embarrassment and distress.

2. Charter Damages

[139] I’m not awarding Charter damages for the breach of Mylabathula’s section 9 rights as section 24(1) damages would result in double-compensation. See Vancouver (City) v Ward, 2010 SCC 27, at para 36.

3. Aggravated Damages

[140] Aggravated damages are compensatory. They are awarded “when the reprehensible or outrageous nature of the defendant’s conduct causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff's feelings”. See Barker v Barker, 2022 ONCA 567, at para 257.

[141] The plaintiffs seek aggravated damages against the CBSA and the Niagara Police for racially profiling Shanthakumar and Mylabathula. Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances of the police action that’s said to result from racial profiling. See R v Dudhi, 2019 ONCA 665, at para 75.

[142] Mylabathula points to several facts that he says prove that the CBSA racially profiled him:

• the CBSA officers surrounded Mylabathula and Shanthakumar’s car in an aggressive manner and searched it

• the CBSA conducted an IBQ search, which includes a CPIC system search, rather that just scanning Mylabathula and Shanthakumar’s passports at a primary inspection booth

• Officer Seabrook didn’t verify the CPIC search results

• the CBSA officers ignored Mylabathula and Shanthakumar’s pleas that the fraud charges were stayed

• the CBSA officers didn’t let Mylabathula or Shanthakumar speak to their criminal defence lawyers

• the CBSA officers refused to let Mylabathula call his daughter, who was waiting to be picked up at Seneca College

• the CBSA officers refused to provide Mylabathula a blanket, and then gave him a garbage bag to keep warm

• the CBSA officers refused to provide Shanthakumar food or drinking water, instead telling her to drink from the toilet

• the CBSA officers yelled at Mylabathula and Shanthakumar, telling them to “shut up” and screaming “lock him up”

[143] Mylabathula’s claim of racial profiling centres on his belief that he’s “Brown”; all of the CBSA officers were white; and they wouldn’t have treated a white man the way they treated him. I don’t find that these inferences prove, on a balance of probabilities, that the CBSA officers racially profiled Mylabathula or Shanthakumar. To the point that these events happened, I accept the alternate theory that the alleged running of the port was an “exciting event” in an otherwise dull evening, and junior officers overreacted when faced with a potential crime.

[144] To that end, I prefer the CBSA officers’ evidence to Mylabathula’s evidence, except in one case, explained below. I believe that the trauma Mylabathula was suffering during the detention and arrest, combined with the passage of time, has led him to mis-remember the nature of these interactions. The Court of Appeal, in R v GMC, 2022 ONCA 2, at para 38, acknowledged the impact that trauma can have on a witness’s reliability and credibility. I don’t believe the CBSA officers told Mylabathula or Shanthakumar to “shut up” or drink from the toilet. He was provided a mylar blanket, which may have looked or felt like a garbage bag.

[145] The exception is on the counsel issue. Officer Seabrook’s evidence is that she informed Shanthakumar and Mylabathula about their right to counsel and, in response, they each asked to speak to duty counsel. Officer Seabrook contacted two duty counsel at around 1030pm, who each spoke with Shanthakumar and Mylabathula around 11pm. In contrast, Mylabathula’s evidence is that he and Shanthakumar asked to speak to their criminal defence lawyers.

[146] Though Officer Seabrook’s will-say statement and oral evidence state that Shanthakumar and Mylabathula asked to speak to duty counsel, her notes only state: “read arrest to Mylabathula”, “Right to counsel – YES, understand”, “read arrest to SHANTHAKUMAR”, and “Rights understood”. Officer Richer’s will-say statement states: “At approximately 2213 both subjects were arrested by officer SEABROOK and had their reason for arrest, rights and caution read to them. Both subjects answered in the affirmative to wanting a lawyer and understanding the rights and caution read to them.”

[147] On a balance of probabilities, I find that it is more likely than not that Shanthakumar and Mylabathula asked to speak to their criminal defence lawyers. That makes common sense—faced with an accusation that they were in breach of their undertakings, they would have preferred to speak to the two lawyers that would have direct knowledge of the stay of proceedings, rather than duty counsel with no background or information about the fraud charges. My view is reinforced by the fact that they asked Constable Gittings to contact their criminal defence lawyers after he arrested them. I don’t accept the CBSA’s argument that Shanthakumar and Mylabathula asked for duty counsel because they didn’t want to incur the cost of consulting their criminal defence lawyers. Facing arrest and jail, it doesn’t make sense that, in that moment, they would try to save money by wasting time talking to duty counsel. That all said, I don’t believe that Officer Seabrook intentionally ignored Shanthakumar and Mylabathula’s request—it’s more likely that, in the “excitement” of the arrest, she made a mistake.

[148] Though Mylabathula maintains his position that Constable Gittings also racially profiled him, his argument is only based on his evidence that Constable Gittings, when driving Mylabathula and Shanthakumar to the station, drove excessively fast, with siren on and lights flashing. I prefer Constable Gittings’s evidence that he didn’t speed, put on his sirens, or flash the overhead lights on the way to the station because there was no need to do so. As a result, I don’t find any evidence to support an allegation of racial profiling by Constable Gittings.

4. Punitive Damages

[149] Punitive damages in tort cases are exceptional: their purpose is to punish a defendant for conduct that’s reprehensible, and a “marked departure from ordinary standards of decent behaviour”. They should be awarded, along with the compensatory damages already awarded, when rationally required to punish a defendant to meet the objectives of retribution, deterrence, and denunciation, in an amount no greater than necessary to satisfy these objectives. See Humphrey v Mene Inc., 2022 ONCA 531, at para 79. But they should only be awarded where compensatory damages are “insufficient to achieve the goals of denunciation and deterrence.” See Whiten v Pilot Insurance, 2002 SCC 18, at para 94

[150] I order and adjudge that the RCMP and the Niagara Police shall each pay $5000 in punitive damages to each of the Estate and Mylabathula. I would have made the same order against the CBSA if the claims against it weren’t statute-barred.

[151] For the last 10 years, the defendants have, collectively, minimized their role in depriving Shanthakumar and Mylabathula of their rights. They’ve refused to apologize to Shanthakumar and Mylabathula (even where an apology wouldn’t affect liability under the Apology Act, 2009, SO 2009, c 3). But Superintendent White was quick to apologize to Constable Gittings for the inconvenience caused to the Niagara Police. The CBSA’s “regret” isn’t an apology. Through trial, the defendants have repeatedly characterized their misconduct as a mere “mistake” that had “modest” consequences to Shanthakumar and Mylabathula.

[152] In fact, it was abject negligence, which had a significant effect on Shanthakumar and Mylabathula. The defendants’ conduct was irresponsible. It’s indecent. Their refusal to accept the significant consequences of their actions over the last 10 years cries out for both general and specific deterrence. Given the compensatory awards here, $5000 in punitive damages is reasonable and rational.

E. Other Issues

1. Crossclaims

[153] The CBSA has crossclaimed against the Niagara Police in Mylabathula’s action. The Niagara Police argue that the crossclaim is statue-barred under the Limitations Act. The Niagara Police have crossclaimed against the CBSA and the RCMP in both proceedings. The parties didn’t seriously press the crossclaims in closing arguments. In any event, I dismiss the crossclaims on their merits. As discussed above, each of the defendants independently breached the duty of care they owed Shanthakumar and Mylabathula. As a result, I need not decide the limitations issue.

2. Prejudgment Interest

[154] I trust that the parties can agree on the amount of prejudgment interest, which can then be reflected in the preparation of the draft judgment. If not, it can be spoken to at the same time as costs submissions.

3. Costs

[155] The parties will engage in meaningful discussions and negotiations respecting the costs of these trials. If they can’t resolve costs, any party seeking costs will serve and file costs submissions, any relevant offers to settle, and their bill of costs by August 4, 2023 (total not to exceed 10 pages each). The parties’ responding submissions (including any offers to settle and bill of costs) will be served and filed by August 25, 2023 (total not to exceed 10 pages each). The parties shall send a courtesy copy to my judicial assistant (aleisha.salim@ontario.ca) at the same time as filing the submissions.

IV. CONCLUSION

[156] The Canadian border should be a place of safety, security, comfort, and courtesy. It’s where Canadians are welcomed home to Canada, whether they have been gone for a day or a lifetime. For Shanthakumar and Mylabathula, on July 4th, the border became impenetrable. Rather than being greeted as they should have been, their rights were trampled upon by police agencies making unreasonable mistake after unreasonable mistake.

[157] Shanthakumar and Mylabathula were innocent of the crimes they were accused of. But they were treated like criminals because no one could be bothered to listen to them before arresting them. The defendants’ conduct was improper. It was beneath our society’s expectations of our national, border, and local police. I’m sorry that Shanthakumar and Mylabathula suffered these indignities. I’m sorry that Shanthakumar died without her rights being vindicated.

Agarwal J.

Released: ~~July 17, 2023~~ September 5, 2023

COURT FILE NO.: CV-13-3480-0000 CV-13-0537-0000

DATE: 2023 09 05

ONTARIO SUPERIOR COURT OF JUSTICE

RE: THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA, Plaintiff

AND:

CANADA BORDER SERVICES AGENCY, THE REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD and THE ATTORNEY GENERAL OF CANADA, Defendants

BEFORE: Agarwal J.

COUNSEL: Peter Callahan, for the plaintiffs