COURT FILE NO.: CV-11-441378

DATE: 2023-07-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WILLIAM MCCORMACK

Plaintiff

– and –

BRYCE EVANS, CAM DURHAM, KIM DERRY, THE TORONTO POLICE SERVICES BOARD, (FORMER) CHIEF OF POLICE JULIAN FANTINO, ANTIMINA ALBORINO AND THE ATTORNEY GENERAL OF CANADA

Defendants

Hedy L. Epstein, for the Plaintiff

Kevin A. McGivney, Natalie D. Kolos, and Taha Hassan, for the Defendants Bryce Evans, Cam Durham, Kim Derry, The Toronto Police Services Board, and (Former) Chief of Police Julian Fantino

Barney Brucker and Adam Karakolis for the Defendant Attorney General of Canada

HEARD: February 6, 7, 8, 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28, March 1, 7, and 8, 2023

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

[1] The Plaintiff, William McCormack, was formerly a police officer with the Toronto Police Services. In April 2004, Mr. McCormack was suspended from active service as a police officer. He was charged with 35 charges of misconduct under the Police Services Act. In May 2004, Mr. McCormack was charged with twenty-two criminal offences. The charges followed an investigation into activities of officers in the Entertainment District in Toronto.

[2] Mr. McCormack resigned from his position as an officer with the Toronto Police Services on March 10, 2010. Upon his resignation, all charges under the Police Services Act were automatically stayed.

[3] Ultimately, all criminal charges against Mr. McCormack were stayed or withdrawn without a trial. Mr. McCormack was not found guilty of any of the offences with which he was charged.

[4] This action was commenced by a Statement of Claim issued in December 2011. In his pleading, Mr. McCormack claims damages from the Defendants for alleged tortious conduct in connection with his arrest and the criminal charges. Mr. McCormack submits that the Defendants are liable for the torts of malicious prosecution, negligent investigation, misfeasance in public office, and intentional infliction of emotional distress. Mr. McCormack seeks a declaration that his constitutional rights under the Canadian Charter of Rights and Freedoms have been breached and, in the alternative to damages for the torts he pleads, damages pursuant to s. 24(1) of the Charter.

[5] For the following reasons, Mr. McCormack’s action is dismissed.

Factual Background

[6] I am satisfied that the following background facts have been shown by the evidence at trial.

Mr. McCormack’s background with the Toronto Police Service

[7] Mr. McCormack, joined the Toronto Police Service (“TPS”) in 1985 as a cadet-in-training. Mr. McCormack became a Constable in the spring of 1986. Mr. McCormack worked at 32 Division of the TPS for approximately five years. His duties included general patrol and plainclothes assignments. For approximately six months, Mr. McCormack was in the Homicide Office at the TPS.

[8] Mr. McCormack was transferred to 52 Division from 32 Division of the TPS. Mr. McCormack worked as a Constable in that division until he was suspended on April 15, 2004. Mr. McCormack’s duties at 52 Division included plainclothes duties and the investigation of vice related crimes, as well as the investigation and enforcement of provincial offences under the Liquor License Act in relation to the operation of bars and clubs in Toronto’s Entertainment District.

Project Ora

[9] The Combined Special Enforcement Unit (“CFSEU”) was mandated with investigating organized crime in the Greater Toronto area and included members of the RCMP, TPS, Ontario Provincial Police and other police services.

[10] In October 2000, the CFSEU began investigating the criminal activities of a criminal organization in the Greater Toronto area through a project known as “Project Ora”.

[11] As Project Ora progressed, several persons including Aniello Peluso (also known as Neil Peluso) became a focus of the investigation.

[12] In December 2002, Antimina Alborino was a corporal with the RCMP. Ms. Alborino swore affidavits in support of several Applications for Authorizations to Intercept Private Communications in Project Ora. A number of judicial authorizations to intercept private communications were granted in Project Ora.

Project Bar District

[13] Project Bar District Investigation was a joint investigation by the CFSEU, including the Professional Standards units of the TPS and the RCMP, investigating alleged bribes to TPS officers by bar owners in the Entertainment District in Toronto.

[14] Project Bar District commenced in January 2003. Ms. Alborino’s involvement in Project Bar District commenced in October 2003. The defendant, Bryce Evans, was working with the Professional Standards unit of the TPS in February 2003 and became an Inspector with the TPS in January 2004. Mr. Evans was the officer in charge of Project Bar District.

[15] On October 20, 2003, Ms. Alborino met with then Inspector Evans. He gave Ms. Alborino a 10-page document entitled “‘Project Bar District’ Operational Plan” with a date of September 25, 2003, shown as having been prepared by then Inspector Evans and another officer. The Operational Plan states that at the time of the report, two confidential informants have been utilized in the investigation.

[16] In October 2003, the Defendant, Cam Durham, was a Detective with the TPS. In October 2003, Mr. Durham became involved in Project Bar District.

Authorizations to Intercept

[17] On December 8, 2003, Ms. Alborino swore an affidavit in support of an Application for an Authorization to Intercept Private Communications. In this affidavit, Ms. Alborino states that the Professional Standards investigators of the TPS have two confidential informants who have provided information relating to the corruption of police officers and who refuse to testify and who do not want to be identified.

[18] On December 12, 2003, Justice Nordheimer of the Superior Court of Justice (as he then was) granted an Authorization to Intercept Private Communications.

[19] Justice Nordheimer granted a renewal and expansion of this authorization on February 11, 2004 and again on March 12, 2004. These additional authorizations were supported by affidavits sworn by Ms. Alborino. These affidavits also state that the Professional Standards investigators of the TPS have obtained information from two confidential informants who have provided information relating to the corruption of police officers and who refuse to testify and who do not want to be identified.

[20] Pursuant to these authorizations, telephone calls made to and by Mr. McCormack were intercepted. There were many other calls intercepted pursuant to the authorizations.

Execution of search warrant on Mr. McCormack’s residence

[21] On April 15, 2004, a search warrant was executed on Mr. McCormack’s residence in Uxbridge, Ontario.

Suspension and charges

[22] On April 15, 2004, Mr. McCormack was given a letter from the Defendant, former Toronto Chief of Police, Julian Fantino, informing Mr. McCormack that his duties were suspended with pay.

[23] In May 2004, Mr. McCormack was charged with 35 misconduct charges under the Police Services Act.

[24] Mr. McCormack was arrested on May 3, 2004 and, after his arrest, he was charged with twenty-two offences involving twenty alleged of corruption offences (4 counts of conspiracy to commit an indictable offence; 5 counts of breach of trust by a public officer, 4 counts of official demanding benefit; 3 counts of official offering influence, 3 counts of attempt to obstruct justice, and a charge of official accept or demand commission), one charge of possession and unlawful storage of an unregistered firearm, and one charge of unlawful storage of ammunition.

[25] On June 13, 2005, Mr. McCormack was charged with assault with a weapon.

[26] On June 13, 2005, Mr. McCormack was charged with one count of fraud under $5,000.

Criminal Proceedings

[27] A preliminary hearing on Mr. McCormack’s corruption charges commenced in June 2005 in the Ontario Court of Justice before Justice W.G. Beatty.

[28] On September 1, 2006, Justice Beatty, in a ruling on a voir dire in the preliminary inquiry, held that one of three confidential informants, confidential informant #1, Neil Peluso, was a police agent and that confidential informer status does not apply to him. In November 2006, the second confidential informant waived his privilege as a confidential informant. On January 29, 2007, the third confidential informant waived her privilege as a confidential informant.

[29] On December 5, 2008, Justice Beatty committed Mr. McCormack to trial on the corruption charges. The committal did not include the firearms-related charges, the assault with a weapon charge, or the fraud charge, which proceeded separately.

[30] On December 7, 2009, Justice Croll stayed the charges of corruption under section 11(b) of the Charter, for delay. The fraud charge was withdrawn by the Crown on February 8, 2010. The assault with a weapon charge was withdrawn by the Crown on June 9, 2010. On August 3, 2010, the remaining charges regarding possession of firearms and unsafe storage were withdrawn by the Crown.

[31] Mr. McCormack was not convicted of any of the criminal offences with which he was charged.

Resignation from TPS

[32] On March 10, 2009, Mr. McCormack delivered a letter to the TPS informing the TPS of his intention to resign effective immediately.

[33] Upon his resignation, all charges against Mr. McCormack under the Police Services Act were automatically stayed.

Commencement of this action

[34] Mr. McCormack commenced this action by a statement of claim that was issued on December 7, 2011. The Defendants are Bryce Evans, Cam Durham, Kim Derry, the Toronto Police Services Board, (Former) Chief of Police Julian Fantino (the “TPS Defendants”), and the Attorney General of Canada.

Analysis

[35] Mr. McCormack claims against the Defendants, on a joint and several basis, general damages in the amount of $2,000,000 and punitive damages in the amount of $1,000,000. He also claims a declaration that his constitutional rights in accordance with sections 7, 8, 9, 10, 11 and/or 12 of the Charter have been breached and, if damages are not awarded for tort claims, damages in the amount of $2,000,000 pursuant to section 24(1) of the Charter for breach of his Charter rights.

[36] Mr. McCormack pleads that the Defendants are liable on account of causes of action for deceit, misfeasance in public office, malicious prosecution, negligent investigation, negligence and/or the intentional infliction of emotional distress.

[37] Mr. McCormack pleads that the Defendant, the TPS, is responsible in law for torts committed by its members in the course of their employment including the individual TPS Defendants Mr. Evans, Mr. Durham, Mr. Derry, and Mr. Fantino.

[38] Mr. McCormack pleads that the Defendant, the Attorney General of Canada, is responsible for torts committed by Crown agencies, including the RCMP, and that this Defendant is responsible for tortious acts committed by Ms. Alborino, an RCMP officer. The action as against Ms. Alborino was discontinued in May 2012.

Ruling on Mr. McCormack’s objection to admissibility of evidence of wiretap intercepts

[39] The trial commenced on February 6, 2023. Mr. McCormack’s first witness was his former counsel in respect of the criminal charges, Jay Naster. A number of documents were entered into evidence as exhibits through Mr. Naster.

[40] After Mr. Naster’s evidence concluded and before Mr. McCormack was called to testify, Mr. McCormack’s counsel asked me to hear and rule on an objection to admissibility at this trial of recordings of wiretap intercepts (and evidence from execution of search warrants), and evidence derived therefrom. Counsel for the TPS Defendants confirmed that he intended to introduce into evidence recordings of wiretap intercepts and agreed to the hearing of this objection on the basis of the evidence tendered at the trial through Mr. Naster.

[41] After receiving written and oral submissions, for reasons given orally on February 14, 2023, I denied Mr. McCormack’s objection and ruled that the evidence of recordings of wiretap intercepts was not inadmissible at this trial.

[42] During the trial, audio recordings from 36 of the intercepted calls were played and marked as exhibits. In addition, transcripts of these recordings were before me. The transcripts were not marked as exhibits but were used as an aid. I followed the transcripts as I listened to the audio recordings and found that they were accurate.

Witnesses at trial

[43] Following the testimony of Mr. Naster and the ruling on admissibility of wiretap intercepts, Mr. McCormack testified on his own behalf. In addition, Mr. McCormack called as witnesses four retired officers who had worked at 52 Division during the time that Mr. McCormack was a plainclothes officer at 52 Division including when he was suspended from his duties. Mr. McCormack called as witnesses his brother, Jamie McCormack, a former TPS officer, and his sister, Kathy McCormack, a former OPP officer. Mr. McCormack also called two expert witnesses, David Wolgelerenter, an actuary with expertise in calculating income loss, and Dr. Julian Gojer, a psychiatrist. Mr. McCormack also read into evidence as part of his case parts of the evidence given on the examinations for discovery of Bryce Evans, Cam Durham, and Antimina Alborino.

[44] The TPS Defendants called two expert witnesses, Matt Mulholland, an accountant with expertise calculating income loss, and Dr. Phillip Klassen, a psychiatrist. The TPS Defendants read into evidence as part of their case parts of the evidence given on the examination for discovery of Mr. McCormack. The Attorney General of Canada also relied on the same evidence from the examination for discovery of Mr. McCormack as part of its case.

[45] None of the individual Defendants or Ms. Alborino was called to testify. The Defendants did not call other evidence.

Claim founded in tort of malicious prosecution

[46] I first address Mr. McCormack’s claim that the Defendants are liable to him in damages for the tort of malicious prosecution.

[47] In Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, the Supreme Court of Canada, at paras. 53-56, gave an overview of the elements of malicious prosecution:

a. Under the first element, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This element identifies the proper target of the suit, as it is only those who were “actively instrumental” in setting the law in motion that may be held accountable for any damage that results.

b. The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour. An accused’s success in a criminal proceeding does not mean the prosecution was improperly initiated.

c. The third element is the absence of reasonable and probable cause to commence or continue the prosecution. This element further delineates the scope of potential plaintiffs. If reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused.

d. Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution. Malicious prosecution is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fuelled by malice.

[48] The Defendants do not contest that the first two elements of this tort are satisfied. With respect to the third element, the Defendants contend that Mr. McCormack has failed to prove the absence of reasonable and probable grounds for Mr. McCormack’s arrest or the charges against him. They submit that this is fatal to Mr. McCormack’s claim founded on the tort of malicious prosecution.

[49] In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at paras. 14-15, Cory J., writing for the court, explained the rationale for the requirement in the Criminal Code that the arresting officer, on reasonable and probable grounds, believes the person arrested has committed or is about to commit an offence:

[14] Section 450(1) [of the Criminal Code] makes it clear that the police were required to have reasonable and probable grounds to believe that the appellant had committed the offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of the police state. In order to safeguard liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.

[15] The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected from crime. Thus, the police need not establish more than reasonable and probable grounds for an arrest. The vital importance of the requirement that the police have reasonable and probable grounds for making an arrest and the need to limited scope was well expressed in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), wherein Scott L.J. stated at p. 329:

The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that that there do fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.

[50] In Storrey, at para. 16, Cory J. explained that it is not sufficient for the police officer to believe that he or she has reasonable and probable grounds to make an arrest. It must be objectively established that those reasonable and probable grounds exist. Cory J., at para. 17, summarized the requirement for reasonable and probable grounds for an arrest:

[17] In summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[51] The determination as to whether there were reasonable and probable grounds is based upon an analysis of the circumstances apparent to the officer at the time of the officer’s decision to make an arrest or lay charges, and not upon what the officer or anyone else may have learned later. In particular, if reasonable and probable grounds existed at the relevant time, they still exist in the sense required even where the information relied upon changes at a later date, or otherwise turns out to be deficient or inaccurate. See Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), 2009 O.J. No. 5067, at para. 61.

[52] Police are not required to exhaust all possible routes of the investigation or inquiry, interview all potential witnesses, obtain or accept a suspect’s version of events, or otherwise establish there is no valid defence, before being able to form reasonable and probable grounds. More generally, an arresting officer does not have to complete an investigation before being able to lawfully arrest a suspect or lay charges; nor does an intention to conduct further investigation after an arrest or laying of charges undermine the formation of reasonable and probable grounds. See 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, at paras. 52, 84; Storrey, at paras. 24-28.

[53] Mr. McCormack submits that he has shown that there were no reasonable and probable grounds for his arrest and the charges against him because (a) the arresting officers lacked a subjective belief in the existence of reasonable and probable grounds for the charges; and (b) if the officers subjectively believed that reasonable and probable grounds existed, the grounds were not justified from an objective point of view.

[54] Through the testimony of Mr. Naster, Mr. McCormack tendered into evidence as business records: (i) the Information of Cam Durham sworn October 15, 2004 in which he states that he believes on reasonable grounds that Mr. McCormack committed twenty offences under the Criminal Code (the corruption charges); (ii) the Information of Cam Durham sworn on May 5, 2004 in which he states that he believes on reasonable grounds that Mr. McCormack committed four firearm and ammunition offences, (iii) the Information of Cam Durham sworn June 13, 2005 in which he states that he believes on reasonable grounds that Mr. McCormack committed the offence of fraud of a value not exceeding $5,000; and (iv) the Information of Cam Durham sworn on June 13, 2005 in which he states that he believes on reasonable grounds that Mr. McCormack committed an assault with a weapon.

[55] Mr. Durham was a Detective with TPS and he worked with Mr. Evans who was the officer in charge of the Project Bar District investigation which led to the charges against Mr. McCormack. These records of the Informations are evidence of the subjective belief of the arresting officers, including Mr. Durham and Mr. Evans, that reasonable and probable grounds existed for the charges against Mr. McCormack.

[56] Mr. McCormack submits that I should not accept Mr. Durham’s sworn statements as proving the arresting officers’ subjective belief in the existence of reasonable and probable grounds for the charges. He submits that other evidence supports a finding that Mr. Evans and other arresting officers, including Mr. Durham, lacked a subjective belief in the existence of reasonable and probable grounds for his arrest. I address this submission when I consider whether Mr. McCormack has shown the absence of a subjective belief by the arresting officers that there are reasonable and probable grounds for the charges.

Are the charges justifiable from an objective perspective?

[57] I first address whether, when the circumstances apparent to the arresting officers at the time of the charges are viewed from the perspective of a reasonable person placed in the position of the arresting officers, Mr. McCormack has shown the absence of reasonable and probable grounds for the charges against him.

[58] Mr. McCormack was arrested and charged with 20 corruption offences associated with five licenced establishments in the Entertainment District: (i) the Peel Pub, (ii) This is London, Easy and The Fifth, and Money, (iii) Distrikt night club, (iv) Club Lotus, and (v) Hotel Bar.

[59] Common to the corruption charges associated with the Peel Pub, Distrikt nightclub, Hotel Bar, and Easy and the Fifth and Money (two clubs with the same owners) are alleged Criminal Code offences for (i) fraud on the government (section 121); breach of trust by public officer (section 122); and conspiracy (s. 465(1)(c)). Common to the corruption charges associated with Club Lotus, Hotel Bar, and Easy and the Fifth and Money is the offence of attempting to obstruct justice.

[60] In R. v. Cogger, 1997 CanLII 314 (SCC), [1997] 2 SCR 845, at para. 22, the Supreme Court of Canada characterized the purpose of section 121(1)(a) of the Criminal Code:

... the object of s. 121(1)(a) is to prevent government officials from taking benefits from a third party in exchange for conducting some form of business on that party’s behalf with the government. The essence of the section, therefore, is the quid pro quo arrangement ...

[61] In Cogger, the Supreme Court of Canada held, at para. 16, that through the enactment of section 121(1)(a), “Parliament has indicated that it is unacceptable for government officials to accept consideration from individuals for the purpose of conducting business with government on that party’s behalf.” The essence of the offence is the selling of influence. It is not required that the seller of influence be acting in his official capacity. It is sufficient for him or her to be “an official” and, further, the language of the section does not require that the incriminating activity with which the person has been charged has been engaged in by the official in his official capacity. The definition of “official” is broad enough to include a police officer: See R. v. Wijesinha, 1994, CanLII 884 (ONCA) at para. 28; aff’d 1995 CanLII 67 (SCC), [1995] 3 SCR 422.

[62] “Exercise of influence” means to affect a decision. A person having influence with the government is a person who could affect a decision by the government, for example, to award a contract. A person who pretends to have influence is a person who pretends he could affect such a government decision. See R. v. Giguere, 1983 CanLII 61 (SCC), [1983] 2 SCR 448, at pp. 461-462.

[63] The offence of breach of trust under s. 122 of the Criminal Code involves the following elements: (a) the accused is an official; (b) the accused was acting in connection with the duties of his or her office; (c) the accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office; (d) the conduct of the accused represented a serious and market departure from the standards expected of an individual in the accused’s position of public trust; and (e) the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose. See R. v. Boulanger, 2006 SCC 32, at para. 58.

[64] Martin’s Criminal Code, Counsel Edition, Marie Henein & Matthew R. Gourlay (United States: Thomson Reuters 2023), at s. 465, states the essential elements of the offence of conspiracy:

The essential elements of a conspiracy are an agreement by two or more persons to commit a criminal offence, or to achieve a lawful object by commission of a criminal offence; an intention by two or more persons to agree, and an intention to put this common design into effect. It is not necessary that there be proof of any overt act in furtherance of the conspiracy, to complete the crime.

[65] The existence of an agreement and the intention required for the proof of conspiracy can be proven by inference from the actions and statements of the parties: Canadian Community Reading Plan Inc. v Quality Service Programs Inc., 2001 CanLII 24156 (ONCA), at para. 27.

[66] In R. v. Beaudry, 2007 SCC 5, at paras. 38-40, 49-50, the Supreme Court of Canada explained the principles that apply with respect to the offence of obstruction of justice under s. 139(2) of the Criminal Code in the context of the exercise of discretion by a police officer by failing to gather the evidence needed to lay criminal charges against another officer. The Crown alleged that the decision was founded on preferential treatment. Charron J. held that the exercise of police discretion must be justified subjectively, that is, honestly and transparently, and on the basis of reasonable grounds. In determining whether a decision resulting from an exercise of police discretion is proper, it is important to consider the material circumstances in which the discretion was exercised. The justification offered must be proportionate to the seriousness of the conduct and it must be clear that the discretion was exercised in the public interest. An accused cannot be convicted of an offence under s. 139(2) solely because he has exercised his discretion improperly. The honesty of the exercise of discretion must be considered and the exercise of discretion must also be justified on the basis of objective factors.

(a) Decision of Beatty J. committing Mr. McCormack for trial on the corruption charges

[67] On December 5, 2008, Justice Beatty released his decision on the preliminary inquiry for the corruption charges. Justice Beatty noted that the preliminary inquiry originally was scheduled for one month but it had taken over three years to complete.

[68] In Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, the Supreme Court of Canada allowed an appeal from a decision holding a provincial Crown attorney liable for the tort of malicious prosecution. This tort requires that the plaintiff prove an absence of reasonable and probable cause for initiating the prosecution. In her reasons, Charron J., writing for the Court, at para. 97, addressed the evidentiary weight to be given in an action for malicious prosecution to subsequent judicial determinations made at the preliminary inquiry or the trial itself:

I wish to add a general comment about “bootstrapping”. Generally speaking, in an action for malicious prosecution, “bootstrapping” occurs when a prosecutor argues that he or she had a reasonable and probable grounds to commence or continue a prosecution on the basis of subsequent judicial determinations made at the preliminary inquiry or the trial itself. While a determination of guilt at a criminal proceeding is not determinative of the reasonable and probable cause question under the third prong of the test for malicious prosecution, it is a relevant factor that may be properly considered in ascertaining the existence or absence of reasonable cause. Giving weight to antecedent judicial determinations works to ensure consistency between the criminal and civil justice systems. The intervener the Attorney General of Canada explains the justification for this practice at para. 20 of its factum:

Giving evidentiary weight in the civil action to the fact that a prima facie case of guilt was found in earlier criminal proceedings takes into account the jurisdiction of the criminal court and the similarity of the facts in dispute. Neither a committal after a preliminary inquiry nor a dismissal of a non-suit motion at the close of the Crown’s case in the trial is necessarily determinative of the reasonable and probable cause issue, but those determinations are objectively compelling, at least where no new facts have emerged. The judicial decisions in the criminal process may thus support a finding by a civil court that reasonable and probable cause for prosecution existed.

Absent a fundamental flaw in the criminal proceedings relied upon, it is perfectly reasonable that antecedent judicial determinations may support a finding by a civil court that there existed reasonable and probable cause for an impugned criminal prosecution.

[69] In 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, the Court of Appeal for Ontario allowed an appeal from a trial decision holding a police officer and a municipal police services board liable for negligent investigation. The Court of Appeal held that the trial judge had failed to accord proper weight to the fact that there had been a committal to trial on the charges after a preliminary hearing:

The trial judge failed to consider the substantial body of jurisprudence holding that the fact that a preliminary hearing specifically concluded that there were reasonable and probable grounds for the charges laid is strong evidence that the investigation, to that point at least, did not violate the standard of care [citations omitted].

[70] In Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), Thorburn J. (as she then was), at para. 60, confirmed that a committal for trial after a preliminary hearing is strong evidence supporting the existence of reasonable and probable grounds. Justice Thorburn noted that the withdrawal of charges or the absence of a criminal conviction does not lead to the conclusion that reasonable grounds did not exist for an accused’s arrest. See also G.S. v. Toronto Police Services Board, 2022 ONSC 3621 (Div. Ct.), at para. 43.

[71] Mr. McCormack accepts that a decision on committal for trial can, in some cases, be a factor in the determination of whether a plaintiff has shown the absence of reasonable and probable grounds for an arrest and charges in an action for malicious prosecution or negligent investigation. Mr. McCormack contends that, in this case, the committal decision is not a factor. This is so, he says, because at the preliminary inquiry, the question of whether, because of serious police officer misconduct that gave rise to breaches of Mr. McCormack’s Charter rights, the investigating officers should be found to have lacked a subjective belief that there were reasonable and probable grounds for the corruption charges, a necessary requirement under Storrey for the existence of reasonable and probable grounds, was not an issue.

[72] Mr. McCormack submits that because police misconduct was a central issue at the preliminary hearing, the finding that Mr. Evans improperly failed to disclose that Mr. Peluso was not a police informant, but a police agent, is the determining factor with respect to the existence of reasonable and probable grounds for the charges, rather than the committal to trial on these charges.

[73] Whether Mr. Evans or other arresting officers lacked a subjective belief in the existence of reasonable and probable grounds for Mr. McCormack’s arrest does not affect whether, from the objective perspective of a reasonable police officer, there were reasonable and probable grounds for the corruption charges.

[74] The decision by Justice Beatty to commit Mr. McCormack for trial on the corruption charges shows that he concluded that, from an objective perspective, there existed reasonable and probable grounds for these charges. Justice Beatty heard many days of evidence from witnesses called by the Crown over a period of more than three years. In his analysis in relation to the charges, Justice Beatty reviewed the legal principles in respect of the corruption charges and the evidence in respect of the charges. He noted that the Crown’s case contained a number of prosecutorial problems of “trial proof beyond a reasonable doubt”. Justice Beatty noted that “misleading an informant as to his status as a confidential informant characterized as an investigative technique causes substantial harm to the course of justice” and “also damages the reputation of the Toronto Police Services as Toronto’s finest”.

[75] Justice Beatty concluded that the evidence meets or exceeds the threshold of sufficient evidence to put Mr. McCormack on trial for the corruption charges.

[76] This is strong evidence supporting the existence, objectively, of reasonable and probable grounds for Mr. McCormack’s arrest for the corruption charges.

(b) Grounds for corruption charges

[77] I turn to the evidence at trial with respect to the circumstances reasonably known to a reasonable person in the position of the arresting officers with respect to the corruption charges against Mr. McCormack.

[78] Mr. McCormack submits that the evidence upon which the Defendants rely in support of their submission that Mr. McCormack has failed to show the absence of reasonable and probable grounds for the corruption charges, including wiretap intercepts, must be considered and understood in the context of the evidence at trial of the investigation by plain clothes officers at 52 Division, including Mr. McCormack himself, of the involvement of organized crime in the Entertainment District.

[79] Mr. McCormack testified that the mandate of plain clothes officers at 52 Division involved enforcement of laws against street level drug dealing, enforcement of prostitution and morality related laws, enforcement of firearms offences, and enforcement of the Liquor Licence Act. The plain clothes officers’ duties often involved acting in an undercover capacity (hiding the officer’s identity as a police officer).

[80] There were two teams of plain clothes officers, the “A” team and the “B” team, each with six constables acting under a Detective Sergeant who answered to the Inspector of the station. Mr. McCormack was assigned to the “B” team and he worked under Detective Sergeant Berger. Mr. McCormack testified that he specialized more in undercover work and the criminal and drug side of the mandate of 52 Division.

[81] Mr. McCormack testified that during his time as a plain clothes officer at 52 Division in 2002, 2003, and 2004, including when the Distrikt Club was trying to obtain its liquor licence, more and more organized crime figures were becoming involved in businesses in the Entertainment District. He testified that officers of 52 Division would recognize members of crime organizations including motorcycle gangs. Mr. McCormack testified that he received complaints from bar owners that organized crime figures were coming into the Entertainment District, but they did not know names of those involved. Mr. McCormack testified that there was a well known organized crime family that was of particular concern. Mr. McCormack testified that during this time, the names of the chief of police and his son came up in discussions with bar owners in a negative way, although he does not rely on these discussions as proof of the truth of the negative statements.

[82] Mr. McCormack testified that in his work, he tried to keep an open level of communications with bar owners and operators and that this helped the community grow and prosper. He testified that by keeping good relations with bar owners and operators, he developed a productive relationship with them and they were willing to provide useful information to him that would assist with his investigations of organized crime in the Entertainment District. Mr. McCormack testified that when someone was offering information on a confidential basis concerning the involvement of organized crime in the Entertainment District, the officers would often meet with the person out of the area where anyone could identify them. Mr. McCormack testified that he became well known in 52 Division as an officer who had a lot of informants and was able to gather useful information.

[83] Mr. McCormack testified that he discussed with other plain clothes officers in 52 Division the entry of organized crime figures to the Entertainment District and he told the Detective Sergeants in charge of the two teams of his beliefs in this regard. Mr. McCormack did not report these concerns to others in an official capacity. The Distrikt Club and a smaller adjacent club, Club One Thirty Four, were the main focuses of his investigations, although he and the officers noted that these clubs were associated with other clubs.

[84] Mr. McCormack testified that both teams in 52 Division decided that he and other officers would go to Distrikt night club to identify people involved and try to find out who the owners were and who was providing the money for this club and Club One Thirty Four. The information gathered would be added to the morning reports that were written up by officers and shared with the plain clothes officers on the two teams.

[85] Mr. McCormack testified that his investigation into organized crime in the Entertainment District did not become a formally named or numbered TPS project. He testified that the plain clothes officers in 52 Division knew that the information about organized crime that was floating around, if false, could have a huge impact on persons alleged to be involved and they were unsure whether the information, if verified, would be endorsed by more senior officers at TPS. His investigation was at its infancy during the 2002, 2003 and 2004 time period. The investigation of organized crime was done in addition to the other activities that plain clothes officers at 52 Division were responsible for as part of their mandate.

[86] Mr. McCormack testified that at the time of his suspension, Distrikt night club had obtained a liquor licence and his investigation of the true ownership of the club was still ongoing. Mr. McCormack testified that before his suspension, either before or after Distrikt obtained its liquor licence, he had found out that Neil Peluso, and other persons he suspected as being involved with Distrikt night club, were involved with another club on Lakeshore Blvd., outside of 52 Division, that was then closed but, when open, had numerous liquor licensing problems as well as allegations of involvement with organized crime figures. Mr. McCormack testified that he learned about Neil Peluso and his suspected involvement with organized crime figures and with front persons at Distrikt night club in January or February 2004.

[87] When he was cross-examined, Mr. McCormack was asked about a number of wiretap intercepts that the Defendants rely on as evidence showing reasonable and probable grounds for the charges against him. Mr. McCormack submits that these intercepts must be regarded and understood in the context of what was known at the time about the investigations by Mr. McCormack and other plain clothes officers at 52 Division into organized crime in the Entertainment District and the investigative techniques used to further these investigations.

(i) Peel Pub

[88] As noted in the committal decision of Justice Beatty, the corruption charges associated with the Peel Pub involved an allegation that “over a period of time covered by the charges, the accused persons participated in a corrupt relationship with [Dan Contogiannis] and [Jonathan Vrozos]”. The Crown alleged:

They had acquired a bar in downtown Toronto called the Peel Pub. They needed a liquor license but there was a delay in obtaining it because of the previous ownership. Bill McCormack Jr. and Rick McIntosh requested and accepted sums of money in exchange for purportedly expediting the issuance of the liquor license for the Peel Pub and in exchange for assistance in the operation of the business by reducing the enforcement of provincial defence liquor violations. An agreed-upon price for the assistance with the issuance of the liquor license was set at $50,000, $30,000-$32,000 of which was paid before these allegations came to light.

[89] In his cross-examination, Mr. McCormack agreed that he learned that Dr. Contogiannis and Mr. Vrozos were involved in the ownership and operation of the Peel Pub. Mr. McCormack knew Rick McIntosh who had been an officer at 52 Division and was the president of the Toronto Police Association. Mr. McCormack knew that Mr. McIntosh had a consulting company that had been retained by Dr. Contogiannis to assist with licence issues relating to the Peel Pub. Mr. McIntosh asked Mr. McCormack to help and he agreed to do so. Mr. McCormack agreed that he was promised money in exchange for his help. Mr. McCormack did not advise his superior about this engagement.

[90] Mr. McCormack testified that Peel Pub did ultimately get their license and that Mr. McIntosh got paid. In an intercepted call between Mr. McCormack and Mr. Vrozos (who Mr. McCormack knew was involved with the Peel Pub) on December 23, 2003 at 2:19 p.m., there is discussion about another bar called Milwaukee’s and the suspension they received for liquor licence violations. It is clear that Mr. Vrozos knows that Mr. McCormack is an active police officer with responsibility for investigation and enforcement of liquor laws in the Entertainment District.

[91] In this call, Mr. McCormack complains to Mr. Vrozos about not receiving calls back from Dr. Contogiannis. The recorded discussion appears to show that Mr. McCormack is seeking payment for his previous assistance with the Peel Pub. Mr. McCormack is heard saying “... I’m fucking kind of dependant on that fucking something he has for me ... not even a fucking call to let me know like, should I make other arrangements should I fucking go to the bank and grab a loan like you know what I mean”. He is heard saying “you, you know what I mean and then fucking like all I want to know is , hey no, I can’t do it this month ... oh okay, fuck I’ll make other arrangements”.

[92] In another part of the call, Mr. McCormack is heard saying:

“Yeah, well. You know what, you know what John I’m not, I’m not using a pressure tactic or anything ... like I told him. I said whenever you guys need something you fucking call me, I come fucking running you know, and I think you know what ... I say hey what do you wanna do? Like you know what, for anything I come running you, you know whether it’s advice or whatever it is, all I want is a fucking uh something … something back you know and then… and then you know what, he’s telling me all let’s keep it between me, you and John you know like fucking leave Rick out of it, cause well Rick basically is out of it, you know. ... I want us all to make some fucking money but you know what I mean, I’m not gonna nickel and dime guy kind of thing you know, you know what I’m saying?

[93] Mr. Vrozos is heard responding “We all need to prosper”. Mr. McCormack is heard replying “Yeah, exactly, so fucking you know, I’m not, like I said, I’m not into doing this and that and the other thing. But just fucking let me know. Now that I’ve vented on you, I feel better”.

[94] At the end of the call, Mr. Vrozos tells Mr. McCormack that he will speak with Dr. Contogiannis to “see what he’s done or not done so we can try to wrap this up as soon as possible”.

[95] This evidence, reasonably understood, appears to show that Mr. McCormack is discussing with Mr. Vrozos arrangements for him to assist the Peel Pub with its business operations in exchange for him receiving financial payments. The intercepts of these calls do not support the reasonable inference or conclusion that Mr. McCormack was using an investigative technique to gain trust with Mr. Vrozos or Dr. Contogiannis to obtain helpful information from them into organized crime in the Entertainment District. The evidence of the intercepts is objective evidence of reasonable and probable grounds for the corruption charges in relation to the Peel Pub.

(ii) The Distrikt

[96] The corruption charges related to The Distrikt, as described by Justice Beatty in his committal decision, involved an allegation that:

… over the period of time covered by the charges, the accused William McCormack Jr. participated in a corrupt relationship with [Vito Barbaro] and [Giuseppe (Joe) Galiano], the owners of a licensed establishment known as The Distrikt, whereby McCormack requested and accepted sums of money, as well as benefits by way of food and alcohol, in exchange for assistance in the obtaining of a liquor license and/or the operation of the business by the disclosure of up-coming liquor investigations proposed by police and liquor inspectors and the improper influence or attempted assertion of influence with respect to the disposition of Provincial Offence and AGCO liquor violations.

[97] The charges against Mr. McCormack in relation to The Distrikt involved offences under sections 121, 122 and 465 (1) (c) of the Criminal Code: frauds on the government, breach of trust, and conspiracy, respectively.

[98] The Defendants submit that the various intercepted conversations show that there were, objectively, reasonable and probable grounds for the corruption charges in relation to The Distrikt.

[99] In one recorded call between Mr. McCormack and Mr. Gagliano on December 15, 2003 Mr. McCormack advises Mr. Gagliano to “put the word out to be careful this weekend, because I’m gonna be off this weekend” and to “make sure they’re really good”. Mr. McCormack agreed on cross-examination that he is advising Mr. Gagliano on this call that he is not going to be on duty that weekend. One reasonable inference that may be drawn from this conversation is that when Mr. McCormack is on duty, Mr. Gagliano benefits from favourable enforcement of Liquor License Act violations.

[100] In an intercepted call on December 23, 2003 between Mr. McCormack and Mr. Barbaro, Mr. McCormack is heard to say that he was on his way downtown to see if Mr. Barbaro had “some of that shit” that he was going to pick up and Mr. Barbaro agrees to meet and says he will give Mr. McCormack “some of the shit I got”. On cross-examination, Mr. McCormack denied that he was referring to money. His evidence was that Mr. Barbaro was bringing things to be donated to needy families, a practice that Mr. McCormack had engaged in at Christmas time.

[101] On an intercepted call from the next day between Mr. Barbaro and Mr. Gagliano, Mr. Barbaro confirmed that he had met with Mr. McCormack the previous day and he recounted that Mr. McCormack asked for money (“you gotta give me some money you know, ah, take care of you guys and this-that …”). Mr. Barbaro said that he told Mr. McCormack that Mr. Gagliano had already given him “the big hay” and that Mr. McCormack asked for more because he was late on a payment. Mr. Barbaro says that he told Mr. McCormack that he will “give you a hundred bucks but you’re paying for dinner”.

[102] Mr. Barbaro continues telling Mr. Gagliano that while in Mr. McCormack’s company, he heard Mr. McCormack say: “I’m coming to get my money today, I need the money, I need it today and you better have it”. Mr. Barbaro tells Mr. Gagliano that Mr. McCormack told him that he was speaking with someone else who owes him money. Mr. Barbaro then tells Mr. Barbaro that he had a conversation with Mr. McCormack about the possibility of another night club “opening down the road” and that “…we’re gonna work on a sliding scale. The longer they get delayed. The more hay you get. He goes, oh I like that”.

[103] The Defendants contend that the existence of reasonable and probable grounds for the existence of a relationship between Mr. McCormack, Mr. Barbaro and Mr. Gagliano is also shown by a series of intercepted communications between January 20, 2004 and January 22, 2004.

[104] On January 20, 2004, an intercepted call between Mr. McCormack and his wife records Mr. McCormack’s wife asking about how household bills will be paid and Mr. McCormack responds that he will take a loan at the bank. Mr. McCormack’s wife said that she had written a cheque for groceries but there was not money to cover the cheque. Mr. McCormack tells her that he will take out a loan at the bank.

[105] The next day, Mr. McCormack called Mr. Gagliano in the afternoon. Mr. Gagliano tells Mr. McCormack that he is “hopefully staying out of the cross hairs” and that he wanted to “stay below the radar”. Mr. McCormack responds that “that’s what I’m trying to do” and that “I do, what I can from my end …”. Later in the call, Mr. McCormack tells Mr. Gagliano that he called to ask for “a huge … favour” that he will be “totally indebted” to Mr. Gagliano for. Mr. McCormack tells Mr. Gagliano that he blew his transmission and he needs to pay cash for the repairs of “twelve hundred bucks” and he asks Mr. Gagliano to “front me something” until he can get some cash. Mr. Gagliano responds that he will call back and let Mr. McCormack know what he can do.

[106] A few hours later on January 21, 2004, Mr. McCormack called Mr. Gagliano and tells him that he has “a new strategy for you” that, down the road, will “probably save you a ton of money”, and that he will let Mr. Gagliano know what that is. Mr. McCormack then asks whether Mr. Gagliano called Vito (Mr. Barbaro). Mr. Gagliano explains that Mr. Barbaro owes him some money and he has asked Mr. Barbaro to loan the money to Mr. McCormack who can then pay Mr. Gagliano back later. Mr. McCormack asks Mr. Gagliano what he is doing this weekend and Mr. Gagliano responds that he is “just trying to protect my investment and get the hell … lay low”. Mr. McCormack responds that “that’s what … I … you know what I was thinking about, um, that’s what I was gonna tell you about anyways. But ah … we’ll get together on that”.

[107] Mr. McCormack denied on cross-examination that his financial difficulties had anything to do with the loan he was seeking from Mr. Gagliano or that it would appear to someone listening to these calls that he was placing himself in a compromising position with respect to individuals operating a liquor establishment that he was in charge of investigating.

[108] About three hours later, Mr. McCormack receives a call for Mr. Barbaro asking him where he was. Mr. Barbaro explains that it is his birthday, he has friends coming over and that he has to get to a bank machine. They arrange to meet in 5 minutes and, about 10 minutes later, in another intercepted call, Mr. McCormack, Mr. Barbaro and Mr. Gagliano can all be heard. Mr. McCormack confirms to Mr. Gagliano that he has met with Mr. Barbaro, while Mr. Gagliano apologizes for Mr. Barbaro for having kept him waiting. Mr. McCormack reassures Mr. Gagliano that it is no problem and that he will call him later and they will go for coffee.

[109] On the next day, January 22, 2004, a call was intercepted between Mr. Barbaro and Mr. Gagliano. Mr. Barbaro tells Mr. Gagliano that he left his birthday dinner to meet with Mr. McCormack and give him $500, saying “here’s 500 and go you know what, look, we don’t wanna let you down. You’re a good guy to us and… you know what, it’s not a big deal”. Mr. Barbaro tells Mr. Gagliano that Mr. McCormack responded: “ah you don’t know what I’ve been doing for you guys” and “the heat’s still on … Distrikt eh” and “there were two cops there this week to charge you guys”.

[110] In this call, Mr. Barbaro discusses with Mr. Gagliano delays that The Distrikt had in opening and that he discussed with Mr. McCormack “about not opening for ten months”. This reasonably appears to have been said in the context of another bar opening in competition with The Distrikt. Mr. Barbaro tells Mr. Gagliano that Mr. McCormack responded “you gotta let me know when to act on that. You gotta let me know how much it’s gonna … how much you guys are offering” … because ah they’re looking to open in April”. Mr. Barbaro tells Mr. Gagliano that Mr. McCormack asked: “how much … how much are they gonna give me” and he responded that “it will be more than five hundred that’s for sure…”. Mr. Barbaro reports that he told Mr. McCormack “we’re gonna make it on a sliding scale” meaning “the longer they stay closed the more hay you get” and Mr. McCormack responded, “I like that”.

[111] In respect of these intercepted calls involving The Distrikt, and the wiretap intercepts generally, Mr. McCormack relies on his evidence that in and around 2003/2004, he and other members of the plainclothes unit at 52 Division were developing concerns that the owners of The Distrikt were not the real owners but a front for organized crime and they began investigating these concerns. Mr. McCormack testified that as information about organized crime in the Entertainment District was coming into the office, he became concerned about his job and welfare and he started keeping a separate field notebook with duplicate information of what was kept in his police issued steno pad field notes, and another book that was more like a diary. Mr. McCormack testified that he made these separate notes at the times of his interactions, or a few minutes later, while the information was fresh in his head, and before he transferred the pertinent parts to his police issued notebooks. He testified that he kept these separate notes in the drawer of his desk which was usually unlocked.

[112] Mr. McCormack testified that the duplicate field notes included information about The Distrikt and Peel Pub, and information coming from a lot of other people and involving other criminal offences and allegations. The book that was more of a diary was more to do with the Peel Pub and The Distrikt and allegations involving Mr. Fantino and his son as well as those suspected to be involved in organized crime. Mr. McCormack testified that he would use the notes to share information if he was asked by other officers. Mr. McCormack testified that other members of the plain clothes unit kept field notes separate from field notes in police issued notebooks, and they would share information from these notes at meetings.

[113] Mr. McCormack testified that these concerns did not turn into a formal project, but everyone knew that this information that was floating around, if it was false, could have a big impact on people’s careers and reputations. He testified that there was no project going forward where the officers asked for permission from a higher ranking officer to carry on the investigations. He also said there was always a real concern that those higher up in the chain of command would not endorse the investigations and the officers would get in trouble for looking into these things.

[114] Mr. McCormack testified that the duplicate memo books and the diary kept in his desk drawer were seized with other memo books when he was charged but not returned to him even after requests from his lawyer, nor were they produced in the criminal proceedings. He testified that these were important to him because they contained sensitive information about the methods he was using, contact information for confidential informants he was using, information about people he considered to be dangerous, and information about Mr. Fantino and his son. Mr. McCormack testified that the separate notes included a running diary of calls he made, places he had gone, people he had seen, and interactions with dangerous people.

[115] Mr. McCormack’s evidence is that his interactions with Mr. Barbaro and Mr. Gagliano were part of his investigation into organized crime in the Entertainment District and that he was trying to develop a relationship of trust with them in order to obtain information that would further this investigation. Mr. McCormack submits that the intercepts generally, understood in context, are no more than conversations between friends and colleagues, storytelling, or pro forma discussions with respect to Liquor Licence Act charges.

[116] Mr. McCormack’s evidence about the separate notes, when first given in his examination in chief, was that the notes contained duplicate information of what was kept in or transcribed to his police issued notebooks, but also included some sensitive information such as information about Mr. Fantino and his son. Mr. McCormack, later in his evidence in chief, expanded his description of the separate notes and said the notes included the methods he was using, without further details. If Mr. McCormack was using an investigative technique to obtain information about organized crime, there is no reason why his use of this technique would not have been recorded in, or transcribed to, the notes he kept in police issued notebooks as part of his police duties, or disclosed to his immediate superiors. Mr. McCormack’s evidence about separate notes kept in notebooks that were seized and not disclosed or returned does not explain the intercepted calls involving Mr. Barbaro and Mr. Gagliano, or the other intercepted calls involving other bars in the Entertainment District.

[117] Mr. McCormack’s evidence that his interactions with Mr. Barbaro and Mr. Gagliano, and others working at bars in the Entertainment District, were to develop a relationship of trust with them in order to obtain information that would further his investigation into organized crime in the Entertainment District, and that he kept separate notes of his investigations that were seized and not produced, if accepted at a criminal trial, could have supported a defence to the charges. This evidence does not show that, objectively viewed, the wiretap evidence does not support reasonable and probable grounds for the corruption charges in respect of The Distrikt or other establishments in the Entertainment District.

[118] Mr. McCormack is heard speaking with Mr. Barbaro and Mr. Gagliano, persons involved with The Distrikt, requesting a loan with assurance of repayment, offering to speak with other officers who may be involved in investigating the clubs, and reasonably understood, offering support for the clubs on a basis that would provide a financial benefit for the clubs and Mr. McCormack. The intercepted calls are much more than conversations between friends and colleagues, storytelling, or pro forma discussions with respect to liquor licensing charges. These calls record discussions that would lead a reasonable police officer in the position of Mr. Evans and Mr. Durham to believe that there is objective justification for the corruption charges against Mr. McCormack in respect of The Distrikt.

[119] I am satisfied that, objectively viewed, there were reasonable and probable grounds for the corruption charges against Mr. McCormack in respect of The Distrikt.

(iii) Club Lotus

[120] There were two charges laid against Mr. McCormack in relation to Club Lotus: breach of trust and obstructing justice (contrary to sections 122 and 139(2) of the Criminal Code, respectively). As stated in the committal decision of Justice Beatty, the Crown alleged as follows regarding these charges:

Detective Constable William McCormack Jr. and Constable George Kouroudis conspired to obstruct the course of Justice. Bill McCormack Jr. warned George Kouroudis of surprise inspections he had been ordered to make it to the operation and ownership of Club Lotus. This had the effect of perverting the course of justice by ensuring that true surprise inspections did not take place. Additionally, the course of justice was obstructed because true investigations into Liquor License Act violations at Club Lotus were frustrated by Bill McCormack Jr. warning George Kouroudis that the inspections would take place.

[121] Mr. McCormack, as he confirmed on cross-examination, received an email from his superior officer, Inspector Campbell, to conduct to surprise inspections of Club Lotus, which Mr. McCormack knew was owned by George Kouroudis, a fellow police officer at 54 Division. This email, sent at 2:58 p.m. on January 22, 2004, advised Mr. McCormack that Mr. Kouroudis was being prosecuted for his involvement with Club Lotus and that there was information to believe that liquor and drug offences were taking place at the establishment. Mr. McCormack is ordered to email the results of his surprise inspections to Inspector Campbell and to “please keep [this information] confidential”.

[122] In subsequently intercepted communications, Mr. McCormack is heard disclosing to Mr. Kouroudis that he would be attending Club Lotus to conduct an investigation. Mr. Kouroudis can be heard leaving a voicemail for Mr. McCormack on January 23, 2004 at 7:30 p.m. to inquire about the inspection. He says, “I just want to know, what’s up for tonight, okay”. It can reasonably be inferred from this message that Mr. Kouroudis wants Mr. McCormack to call him back about the upcoming inspection of Club Lotus. During an intercepted call on January 23, 2004 at 8:05 p.m., Mr. Kouroudis confirms with Mr. McCormack that the inspection at Club Lotus is set for around 1:00 a.m. that night, to which Mr. McCormack responds, “okay good bud”. Mr. Kouroudis asks him to “just confirm with me later when ah … whatever, you’re done”, to which Mr. McCormack responds, “yeah, don’t worry about it”. Mr. McCormack then tells Mr. Kouroudis “make sure your guys know to have everything fucking … I don’t wanna see one fuck’n drop of booze on the floor, nothing … make sure everything’s fuckin in order”.

[123] These intercepted communications make it clear that Mr. McCormack is advising Mr. Kouroudis of the upcoming surprise inspections that he had been directed to keep confidential. When he was challenged on cross-examination that he was supposed to keep the fact of the inspections confidential, Mr. McCormack maintained that it was a common practice for many officers to warn bars that an inspection was coming and that everything should be in order. When pressed that this practice should not be followed where he was told to keep the information about the surprise inspections confidential, Mr. McCormack responded that the meaning of “confidential” as used in the email from Inspector Campbell was unclear, and the instruction could have meant to keep the information confidential from other officers. Mr. McCormack testified that the disclosure to Mr. Kouroudis would have enhanced the ability of Inspector Campbell to get a conviction if any charges were laid (because any violations would have occurred after notice of the upcoming inspection).

[124] Mr. Kouroudis left a voicemail message for Mr. McCormack in the night of January 24, 2004 advice and that Club Lotus would not be open that night or the next, and so there was no point in making the inspection. The next night (January 25, 2004) an intercepted call between Mr. Kouroudis and Mr. McCormack revealed that, in spite of his message the night before, Mr. Kouroudis’ partner had decided to open Club Lotus for business. Mr. Kouroudis asks Mr. McCormack “what time are you gonna pop by here?”, to which Mr. McCormack responds, “probably in about, and hour or so”. During the call, Mr. McCormack and Mr. Kouroudis arranged for Mr. McCormack to call Mr. Kouroudis when the inspection is complete so that he would then be able to attend the premises. It can reasonably be inferred from this intercepted call that Mr. McCormack is notifying Mr. Kouroudis’ of the upcoming inspection so that he can make sure there are no Liquor License Act violations to be found. In addition, Mr. McCormack is making sure that Mr. Kouroudis will not be at the bar when he does the second inspection.

[125] After this inspection was conducted, Mr. McCormack reported his findings to Inspector Campbell by email. He reported that he had inspected Club Lotus on January 23 and 25, 2004, and found that all was in order on both occasions. Mr. McCormack did not inform Inspector Campbell of his conversations with Mr. Kouroudis to advise him that he would be conducting inspections and that Mr. Kouroudis should stay away until the inspections were done.

[126] I do not accept Mr. McCormack’s evidence he felt that the instruction from Inspector Campbell in his email to keep the two “surprise” inspections confidential, reasonably understood in the context of evidence of usual police conduct, was unclear. Mr. McCormack’s evidence in this regard is not credible. I am satisfied that, objectively viewed, there were reasonable and probable grounds for the corruption charges against Mr. McCormack in respect of Club Lotus.

(iv) Hotel Bar

[127] The corruption charges associated with the Hotel Bar were alleged frauds on the government, breach of trust, obstruction of justice, and conspiracy (sections 121, 122, 139 (2), and 465(1)(c) of the Criminal Code, respectively). The Crown alleges in respect of these charges that:

… over the period of time covered by the charges, the accused William McCormack Jr. participated in a corrupt relationship with [Jesse Carrere], [George Psomas] and [Claudio Schiavi] the owners and employees of a licensed establishment known as Hotel whereby McCormack requested and accepted as sum of money in exchange for improper influence or attempted assertion of influence with respect to the disposition of Provincial Offences Act liquor violations.

[128] Mr. McCormack confirmed during his cross-examination the background facts relating to these charges and the relevant intercepted communications. Claudio Schiavi was the doorman of the Hotel Bar, which was located in the Entertainment District. He approached Mr. McCormack after Constable Dean Ion had advised owners of the Hotel Bar on April 3-4, 2004 that charges will be laid for overcrowding. Mr. Schiavi was concerned about these charges and was looking for Mr. McCormack’s help with them.

[129] The Defendants rely on a series of intercepted calls as providing justification for the existence of reasonable and probable grounds for the charges against Mr. McCormack in respect of Hotel Bar.

[130] The first in a series of intercepted calls was on April 5, 2004 at 3: 08 PM when Mr. Schiavi called Mr. McCormack and asked about the pending charges: “Um, now, I don’t know what’s gonna happen, like with, with what happened like with Saturday night ah, I don’t know if they’re going to get charged, or not. Um, do you know anything about that?” Mr. McCormack responds, “Well ah, I don’t know, but ah, whether Dean wants to charge him. I said we’ll take a look, I told Jessie I’ll take a look and see whether it’s… like I’m not too worried about it, right?” Mr. Schiavi asks Mr. McCormack for a meeting. They agreed to speak at 9:00 p.m. to find a place to meet. It is clear from the interception that Mr. Schiavi knows that Mr. McCormack is a police officer with the authority to conduct inspections and enforcement of liquor laws in the Entertainment District, including in respect of Hotel Bar.

[131] In an intercepted call later on April 7, 2004 at 3:35 p.m., Mr. McCormack tells Mr. Schiavi that he “looked into that thing”, and asks him “are you going to be around and I’ll tell you what kind of deal I got for you later?”. Mr. McCormack is referring to the issues surrounding the overcrowding charge. Mr. McCormack testified at trial that the “deal” he got was simply that Constable Ion would charge Hotel Bar only with one overcrowding charge and nothing else.

[132] Later on April 7, 2004, at 11:31 p.m., another phone call was intercepted between Mr. McCormack and Mr. Schiavi. Mr. McCormack tells Mr. Schiavi to go see Mr. Commisso at the Dimmi Restaurant, as “he can look after the whole thing”. The reference to “the whole thing” is to the overcrowding charge. Mr. Schiavi says he does not know how Mr. Commisso can do it, and Mr. McCormack responds “if I was in person, I tell you what ah, what he told me, but I’m not … I’m not saying it on the phone”. Mr. McCormack told Mr. Schiavi that “I gotta give the oh … the final okay, but I can do the final okay, but, uh, … he says uh, he’s got a friend that’s uh … eats dinner there all the time that looks after these things”.

[133] A few minutes later, Mr. McCormack is heard on an intercepted communication with Mr. Commisso. He tells Mr. Commisso that Mr. Schiavi is on his way to see him, to which Mr. Commisso responds that Mr. Schiavi is “right here in front of me”. Mr. McCormack then tells Mr. Commisso what he had told Mr. Schiavi in his earlier call, that Mr. Commisso knows a guy “that could take care of the whole thing”.

[134] On April 8, 2004 at 1:04 a.m., an intercepted call took place between Mr. McCormack and Mr. Commisso. During this call, Mr. McCormack asks Mr. Commisso, “Everything okay?”, To which Mr. Commisso replies, “Everything’s cool”. Mr. McCormack then tells him that he will come see him tomorrow, and Mr. Commisso instructs him, “don’t talk to him anymore” (in reference to Mr. Schiavi).

[135] The intercepted calls provide reasonable and probable grounds for a person in the position of the arresting officers to believe that Mr. McCormack was involved in an arrangement where he was pretending to exercise influence and/or providing assistance to Mr. Schiavi to make the overcrowding charge go away, in return for an advantage or benefit for another person (that is, Mr. Commisso). The provisions in the Criminal Code relating to frauds on the government are sufficiently broad to encompass such conduct, which would represent a breach of trust. The disposition of the overcrowding charge in this manner would also represent an obstruction of justice, and the arrangement whereby this came about would meet the test for conspiracy.

(v) Easy, Money and the Fifth

[136] The corruption charges associated with Easy, Money, and the Fifth were alleged frauds on the government, breach of trust, obstruction of justice, and conspiracy (sections 121, 122, 139 (2) and 465 (1) (c) of the Criminal Code, respectively). The Crown alleged in respect of these charges that:

… over the period of time covered by the charges, the accused William McCormack Jr. participated in a corrupt relationship with [Oliver Geddes], the owner of licensed establishments, wherein McCormack accepted benefits in cash, food and alcohol in exchange for assistance of the operation of the business by the disclosure of-coming liquor investigations proposed by police and liquor inspectors in the improper influence or attempt to assert influence with respect to the disposition of Provincial Defence liquor violations.

[137] Oliver Geddes was a friend of Mr. McCormack and he and his family owned a number of liquor establishments in the Entertainment District. Mr. McCormack had borrowed money from Mr. Geddes on a number of occasions. Mr. Geddes also paid for Mr. McCormack and his wife’s meals and drinks (of a value greater than $150) when they attended at The Fifth, and at the VIP lounge of Easy. Mr. McCormack admitted that Mr. Gaddis had on a number of occasions paid for his meal when they both went to The Keg.

[138] In the context of this relationship, Mr. McCormack is heard in a series of calls with Mr. Geddes whereby he offers assistance to impact dispositions of charges laid against Mr. Geddes’ bars by other 52 division officers. It is a reasonable inference from these calls that Mr. McCormack is offering to influence the charges on the basis of his friendship with Mr. Geddes.

[139] In one call, Mr. Geddes asks Mr. McCormack whether he should retain legal counsel for a court appearance. Mr. McCormack responds “No buddy, …don’t worry about it. Don’t ah, … let me, ah, look after it from my end first … I’m gonna go to Danny, ‘cause it’s his team … And, I’m gonna see what I can do, from that end … and then, I’ll tell you, what you need to do. … So, but I’m, I’m pretty sure, I can look after it, for ya”. Mr. McCormack tells Mr. Geddes that he will call the arresting officer at home and then let Mr. Geddes know what is going on.

[140] This intercept, objectively viewed, shows that Mr. Geddes knows that Mr. McCormack is a police officer with authority to conduct inspections and enforce liquor laws in the Entertainment District including in respect of Mr. Geddes’ establishments and that he can influence the potential disposition of charges against these establishments.

[141] On another intercepted call on January 14, 2004, Mr. McCormack is heard discussing with another officer, Detective Danny Bell, the charges initiated by another officer in which Mr. McCormack tells Detective Bell about having talked with Mr. Geddes and telling him “well let me talk to Danny first and maybe, … you guys can work it out in court”. Mr. McCormack then asks Detective Bell, “should I just tell them, to talk to you and, you’ll work out a deal with him or…”, To which Detective Bell responds, “Yeah, yeah, tell him to give me a shout…”. Detective Bell later states, “I’m sure, I’m sure… we’ll work something out… with that”. Detective Bell further indicates to Mr. McCormack that there were other charges coming up at the end of the month against Mr. Geddes’ establishments.

[142] On January 17, Mr. Geddes phoned Mr. McCormack after his meeting with Detective Bell to report that it went well. Mr. Geddes then advises Mr. McCormack about other charges coming up in court the following week to which Mr. McCormack responds, “… let me talk to Stehouwer (another officer at 52 Division) … about those charges”. Mr. McCormack is heard in an intercepted call a few days later with Constable Stehouwer raising the subject of the charges against Mr. Geddes’ establishment to be heard in Court the next morning. Mr. McCormack tells Constable Stehouwer that he had told Mr. Geddes that he would “put in a good word” and that it “can be worked out at court”. Mr. McCormack tells Constable Stehouwer that “I just wanted to give you the heads up, in case he approached you”, to which Constable Stehouwer responds, “good enough, Billy”. A few days later, Mr. Geddes leaves a voicemail for Mr. McCormack thanking him for “helping out with Peter there”.

[143] This series of calls, reasonably understood, appears to show that Mr. McCormack was acting further to an ongoing arrangement with Mr. Geddes to exercise influence to impact the charges laid against Mr. Geddes’ liquor establishments. Understood in this context, this series of calls provides reasonable and probable grounds to believe that Mr. McCormack provided “cooperation” and/or “assistance” for the benefit of Mr. Geddes in connection with charges against his establishments. It can be reasonably inferred from these calls that Mr. McCormack’s assistance with the charges secures him benefits through his continued friendship with Mr. Geddes (including meals and drinks). Such conduct falls within the Criminal Code provisions relating to frauds on the government and breach of trust. The disposition of charges faced by Mr. Geddes through Mr. McCormack’s influence would, objectively viewed, provide reasonable and probable grounds for charges for obstruction of justice and conspiracy.

[144] I have considered the wiretap intercepts in relation to the corruption charges having regard to Mr. McCormack’s evidence concerning his, and other officers at 52 Divisions, investigations concerning organized crime in the Entertainment District. Mr. McCormack explained that he made efforts to gain the trust of persons working at bars in the Entertainment District, even saying that he could do favours for them, and even in the context of promised benefits to him, as an investigative technique used to obtain valuable information for the investigation of organized crime.

[145] This action is not a trial of the criminal charges against Mr. McCormack. I am not called upon to decide whether, if these charges had gone to trial, Mr. McCormack would have been found guilty or not guilty. However, the evidence does not support a conclusion that a reasonable police office in the position of the arresting officers would reasonably have known that the words spoken in the intercepted communications should be understood as being spoken by Mr. McCormack as an investigative technique used to gain the trust of persons involved in bars in the Entertainment District so that they would be comfortable giving Mr. McCormack useful information for his investigation into organized crime.

[146] I am satisfied that the arresting officers, objectively, had reasonable and probable grounds to charge Mr. McCormack with corruption offences in relation to the bars owned by Mr. Geddes and members of his family.

(c) Grounds for firearms charges

[147] Mr. McCormack was charged with four charges relating to the storage of firearms and ammunition. The charges were based on evidence found as a result of a search warrant executed at Mr. McCormack’s residence on April 15, 2004. Investigators found a .22 calibre rifle and loose .38 and .40 calibre ammunition, which were alleged to be stored contrary to section 86(2) of the Criminal Code. It was also alleged that the .22 calibre rifle was unlawfully in Mr. McCormack’s possession, as he did not hold a registration certificate or license permitting such possession, contrary to section 92(1) of the Criminal Code.

[148] At trial, Mr. McCormack gave evidence to explain the charges. Mr. McCormack’s evidence is that the .22 rifle was a single shot rifle and that the firing pin was removed when the gun was seized. His evidence is that the gun was used to scare off coyotes because Mr. McCormack lived on 27 acres of land and had a dog and some chickens. Mr. McCormack testified at trial that the ammunition was in a locked drawer. He testified that some of the ammunition (not stored in the drawer) was in a gun belt that he was told was “duds”, even though they looked like live rounds. Mr. McCormack testified that, to him, the gun belt and ammunition were decoration.

[149] In evidence read in at trial from his examination for discovery, Mr. McCormack agreed that a gun and loose ammunition were found at his house when the search warrant was executed. His discovery evidence is that the gun was in a closet without the firing pin and that the ammunition was in a drawer. Mr. McCormack agreed that the gun and ammunition were not stored the way they are supposed to be legally stored.

[150] In cross-examination at trial, Mr. McCormack agreed that he had training in the safe storage of firearms. He testified that the firing pin from the .22 rifle had been removed although he agreed that the gun (he did not concede that it was a firearm under the Criminal Code) was not stored as it was supposed to have been stored according to the applicable regulations, as the law requires. Mr. McCormack’s discovery evidence was read to him and he agreed that the answers were true when he gave them. He explained that his recollection from 20 years ago is that the drawer where the ammunition was kept was usually locked but he cannot say whether the drawer was locked when the search warrant was executed.

[151] The evidence upon which Mr. McCormack relies is relevant to whether, if the charges had proceeded to trial, convictions were justified. Mr. McCormack may well have had defences to these charges because of how he used the .22 rifle and how the ammunition was stored. I am not the trial judge making any findings of guilt or acquittal on these charges.

[152] I am satisfied that, objectively viewed, there were reasonable and probable grounds for the firearms charges to have been laid.

(d) Grounds for the fraud charge

[153] Mr. McCormack was charged on May 3, 2005 with Fraud Under $5,000. This charge related to an alleged fundraiser/charity event Mr. McCormack had organized at the Palais Royale on the evening before Valentine’s Day.

[154] Mr. McCormack testified that his daughter needed a diabetes pump for insulin that would cost about $5,000. He initially planned to have a fundraiser to raise money for the pump. He later found that the pump was covered by insurance. The planned event changed from raising money for a pump for his daughter to one where whatever profits were earned from the event would be donated to a charity affiliated with diabetes, like the diabetes clinic of Sick Kids Hospital. He testified that the profits from the event were donated to the diabetes clinic.

[155] Mr. McCormack provided evidence (supported by a receipt) that $750 was donated to the Hospital for Sick Children from the fundraising event.

[156] The Defendants submit that there were reasonable and probable grounds for this charge based on an intercepted call between Mr. McCormack and his wife that, they contend, reasonably shows that Mr. McCormack was involved in a scheme by which he would raise money, purportedly for charity, and redirect a portion of the funds to himself for his and his family’s benefit.

[157] One of the intercepted calls was between Mr. McCormack and his wife, Ms. Watson, on December 23, 2003. On this call, Mr. McCormack can be heard to tell his wife: “Yeah. So we’re going to do a big thing and uh … I’m gonna get uh … Molsons and … and Bacardi to uh, donate the booze. They’re gonna donate the food in the Palais Royale. And then uh, all the proceeds are gonna go to uh … Sick Kids Hospital, Diabetes Clinic, and … and well … uh… on our record, that’s where its goin’, and uh half of it’s going to go towards her pump.” After some discussion, Mr. McCormack tells Ms. Watson that this will be great for his daughter and will “give us a little push too”, and they can take their daughter away “for a nice little vacation, or something”. Mr. McCormack is heard telling Ms. Watson about the pump ‘I know it’s covered and everything, but like I said, we’ll split the money with the hospital” and get their daughter a big treat, like a trip.

[158] Mr. McCormack explained that by the time of the call, he does not recall what had happened and he was speculating about how the money would be used. He testified that nothing was settled about how the money would be used and that the use of this personal call is unfair.

[159] Mr. McCormack admitted in his evidence that he kept $150 from the fundraising event.

[160] Mr. McCormack may have had a good defence to this charge based on the evidence he gave at trial. However, when the intercepted call with Ms. Watson is considered from an objective perspective based on circumstances known when the charge was laid, there were reasonable and probable grounds for the charge.

(e) Grounds for assault with a weapon charge

[161] Mr. McCormack was also charged with assault with a weapon in relation to the use of a hand-held radio (a “mitre”) against Rohan Anthony Jackson.

[162] The Defendants submit that an intercepted call on February 7, 2004 between Mr. McCormack and Simon Knott, a fellow officer at 52 Division, in which Mr. McCormack recounted the incident to Mr. Knott, provides reasonable and probable grounds in relation to this charge.

[163] In the intercepted call, Mr. McCormack describes to Mr. Knott that he had been involved in a foot chase of Mr. Jackson after a stolen truck had been spotted, and compared the arrest and subsequent beating by police officers to that of Rodney King. Later in the conversation, recounting the arrest, Mr. McCormack states “I fucking nailed him with my Mitre right in the fucking head”. Mr. Knott responds by recalling another incident where an individual was clubbed with a mitre and Mr. McCormack responds: “oh that’s what I did, I think that’s what knocked him out … when I fucking hit him with a fucking Mitre ...”.

[164] Mr. McCormack explained in his evidence that he was not interviewed about this event. Mr. Knott testified that Mr. McCormack was telling a story and that an experienced investigator listening to the call would know this. Mr. McCormack submits that where the Defendants did not call evidence to corroborate the facts on which the charge is based, I should infer that no such evidence exists.

[165] The statements made by Mr. McCormack in the intercepted call, considered objectively, would show to a reasonable person in the position of the arresting officers that Mr. McCormack used excessive and unreasonable force on this occasion. I am satisfied that, objectively, there were reasonable and probable grounds for the assault charge.

Did the arresting officers lack a subjective belief that there were reasonable and probable grounds for the charges against Mr. McCormack?

[166] Mr. McCormack submits that the sworn statements by Mr. Durham in the Informations that he believes the charges are supported by reasonable grounds should not be accepted as evidence of the arresting officers’ subjective belief that there are reasonable and probable grounds for the charges.

[167] Mr. McCormack contends that a fair assessment of the evidence of Mr. Evans’ conduct shows that he was either directed, or decided, to bring Mr. McCormack, his family, his friends, and colleagues to their knees. Mr. McCormack submits that the evidence of Mr. Evans’ conduct amounts to more than bad faith, and demonstrates that Mr. Evans engaged in a deliberate effort to destroy Mr. McCormack’s life, without regard to the law, Mr. Evans’ duty, or morality.

[168] Mr. McCormack submits that the object of the Project Bar District investigation was not to investigate possible criminal conduct, but to disgrace Mr. McCormack. Mr. McCormack contends that this malicious motivation cannot be reconciled with the existence of an honest belief by Mr. Evans, the officer in charge of the Project Bar District investigation, or other arresting officers, that there were reasonable and probable grounds for the charges.

[169] Mr. McCormack has not shown that Mr. Evans bore any personal animosity towards him before the Project Bar District investigation began. Mr. McCormack, in evidence read in from his examination for discovery, said that he had not had any previous bad dealings with Mr. Evans. Mr. McCormack agreed that before his involvement with Mr. Evans in connection with the events leading to this lawsuit, he had no reason to believe or understanding that Mr. Evans bore him any ill will. Mr. McCormack testified on discovery, that was read in by the TPS Defendants, that he had not previously dealt with Cam Durham. He agreed that he had no reason to believe before the investigation that Mr. Durham bore him any ill will.

[170] Mr. McCormack pleads in the Statement of Claim that Mr. Fantino knew or ought to have known that Mr. McCormack was being investigated and that he was targeted because he is the son of Mr. Fantino’s predecessor as chief of police, William McCormack Sr., and that Mr. Fantino caused the investigation of Mr. McCormack with malice or for a primary purpose other than that of carrying the law into effect.

[171] Mr. McCormack testified that when he was investigating the entry of organized crime to the Entertainment District, the names of then Police Chief Fantino and his son came up as having associations with persons suspected of being involved with organized crime. There is no admissible evidence that either Mr. Fantino or his son was involved with persons associated with organized crime in the Entertainment District.

[172] The evidence tendered by Mr. McCormack (by reading in parts of Mr. Evans’ discovery evidence) is that Mr. Fantino did not have any involvement in having Mr. Evans appointed to the Project Bar District investigation. Mr. Evans had no obligation to report to Mr. Fantino. Mr. Evans gave Mr. Fantino and his counsel a report on the investigation on March 15, 2004, and, after this report, Mr. Evans was not regularly reporting to Mr. Fantino in regards to Project Bar District.

[173] There is no evidence that Mr. Fantino, or any other of Mr. Evans’ superior officers at TPS, or anyone else, directed Mr. Evans to harm Mr. McCormack or bring him to his knees by bringing unjustified charges against him.

Evidence of police misconduct when the authorizations to intercept Mr. McCormack’s private communications and the search warrant were obtained

[174] In support of his submission that the investigating officers lacked a subjective belief that there were reasonable and probable grounds to arrest him, Mr. McCormack relies on evidence of police misconduct when the authorizations to intercept his private communications and the search warrant were obtained.

[175] Mr. McCormack relies on evidence that Mr. Evans misstated in his report to Ms. Alborino (the content of which he knew would be included in her ITO and presented to a judge on the application for authorization of wiretaps) that Mr. Peluso was a confidential informant when, in fact, he was a police agent who Mr. Evans had arranged to assist the police with the investigation into suspicions of corruption by police officers working in the Entertainment District in 52 Division. Mr. Evans also misstated in his report that another person, Carly Pinn, was a confidential informant when, in fact, she was a civilian employee of the TPS who worked in the wireroom and was a police agent.

[176] Justice Beatty ruled that Mr. Peluso was a police agent and not a confidential informant. Justice Croll, in her decision on the s. 11(b) Charter application, described the purported conferral of confidential informant status on Ms. Pinn as an investigative technique as “problematic”, given that she was a TPS employee. Justice Croll expressed her view that there should have been no issue that Mr. Peluso a police agent and not a confidential informant.

[177] On the evidence before me, I find that Mr. Evans knew when he gave his report to Ms. Alborino, and when the content of the report was used in the ITOs provided to the judge in support of requested authorizations to intercept private communications, that Mr. Peluso and Ms. Pinn were police agents and not confidential informants and that Mr. Evans knew that the information that they were confidential informants was untrue.

[178] The fact that these deliberate misstatements were made is evidence of misconduct on the part of Mr. Evans in relation to the applications for authorizations for the wiretap intercepts in the criminal proceedings.

[179] The fact of this misconduct does not, however, lead to the inference that Mr. Evans or other arresting officers did not subjectively believe there were reasonable and probable grounds for the charges against Mr. McCormack. The charges against Mr. McCormack were laid after the arresting officers had reviewed the intercepts and considered other evidence gathered in the Project Bar District investigation. The intercepts are relied upon by the Defendants as evidence supporting the existence of reasonable and probable grounds for the charges against Mr. McCormack. I have found that when the circumstances that existed when the charges were laid is considered objectively, there were reasonable and probable grounds for the charges.

[180] I do not accept Mr. McCormack’s submission that the evidence of Mr. Evans’ misconduct when the authorizations to intercept his private communications and the search warrant were obtained shows that Mr. Evans lacked a subjective belief that there were reasonable and probable grounds for the charges and laid the charges as part of a plan to bring Mr. McCormack to his knees and destroy his life. As I have held, there is no evidence that Mr. Evans bore personal hostility toward Mr. McCormack or that he was directed to lay charges against Mr. McCormack to destroy his life or for another improper purpose. The fact that Mr. Evans engaged in misconduct when the authorizations were obtained does not fairly lead to an inference that, when charges were laid, he lacked an honest belief that they were justified.

Mr Evans’ meeting with James and Kathy McCormack

[181] Mr. McCormack relies on evidence given by his brother, James, and his sister, Kathy, of a meeting with them that was requested by Mr. Evans after their brother was charged. James McCormack testified that during this meeting, Mr. Evans told him that his brother was guilty of the offences and that if the family wanted to stop further leaks to the media and embarrassment from public disclosure of the intercepts through the court system, they should encourage Bill McCormack to plead guilty. Kathy McCormack testified that during this meeting, Mr. Evans told them that their brother was guilty of the charges and asked her to get Bill to plead guilty and if he did not, something bad would happen to her, and that the wiretap intercepts would be publicly released if the prosecutions went forward and this would be embarrassing for the family.

[182] This evidence shows that Mr. Evans wanted Mr. McCormack to plead guilty, and that Mr. Evans tried to persuade Mr. McCormack’s siblings to get him to do so. I accept that James McCormack and Kathy McCormack understood that Mr. Evans’ references to the likelihood of public disclosure of harmful and embarrassing information from the intercepts was to pressure them to prevail on their brother to plead guilty, which neither did because they believed in his innocence.

[183] Mr. Evans conduct in this meeting, even if it rose to the level of being an improper threat, does not show that when the charges were laid, Mr. Evans did not believe there were reasonable and probable grounds to believe Mr. McCormack was guilty of the offences with which he was charged. The pressure for James and Kathy McCormack to get their brother to plead guilty is not inconsistent with an honest belief by Mr. Evans that Mr. McCormack probably would be found guilty.

Mr. Evans’ interactions with Mr. McCormack during the legal proceedings

[184] Mr. McCormack relies on evidence of interactions between him and Mr. Evans at courthouses and on other occasions during the criminal proceedings.

[185] Mr. McCormack testified that Mr. Evans and Mr. Durham would show up to court appearances where dates were set for court hearings. They would speak with Mr. McCormack, and tell him not to worry. On one occasion, Mr. Evans said that all Mr. McCormack needed to do was to plead guilty to some charges and he would take care of the rest. Mr. McCormack, through his counsel, complained about harassment by Mr. Evans.

[186] Mr. McCormack gave evidence that on January 22, 2007, Mr. Evans approached him in the bathroom at the courthouse and assured him that they would “both come out of this okay”. Mr. McCormack’s evidence is that after Mr. McCormack indicated that he was not interested in any sort of plea deal, Mr. Evans started to get agitated and said that a lot more embarrassing things were going to be released, and that the intercepted recordings would be the release showing things about his father and his family that could be heard on the tapes.

[187] Mr. McCormack testified that when he would go to police headquarters to report as part of the conditions of his suspension, Mr. Evans would come to the front desk and ask him a lot of questions including about his legal counsel and what he planned to do in respect of the charges. He submits that this conduct was improper and supports his contention that Mr. Evans was trying to get Mr. McCormack to plead guilty to charges that he knew were unjustified.

[188] This evidence shows that Mr. Evans approached Mr. McCormack about a plea deal and, in these discussions, that he told Mr. McCormack that more embarrassing things were going to come out if the criminal charges proceeded to trial which would involve Mr. McCormack and his family. This evidence does not show that Mr. Evans had intentionally charged Mr. McCormack with offences that were not justified for the purpose of bringing him to his knees. This evidence does not show that Mr. Evans lacked a subjective belief that the charges were justified.

Evidence of leaks to the media

[189] Mr. McCormack submits that there were leaks to the media about the charges against him and he contends that Mr. Evans directed the leaks to embarrass Mr. McCormack and his family, for improper purposes.

[190] Although the proceedings against Mr. McCormack attracted attention in the media, there is no evidence that Mr. Evans, or any other Defendant, leaked information about Mr. McCormack or the charges against him to the media.

Evidence given by other officers

[191] Mr. McCormack relies on evidence given by four experienced, and now retired, police officers who worked in the plain clothes unit at 52 Division that they believed that Mr. McCormack was innocent of the charges against him and they would not have charged Mr. McCormack for the alleged offences, evidence that was not challenged by witnesses called by the Defendants.

[192] These retired officers testified as fact witnesses and they explained their experience as plain clothes officers and their knowledge at the time of the investigation of organized crime in the Entertainment District. These witnesses were not put forward as independent witnesses with specialized expertise in the standard of care that applies to evaluating the use that the police should have made of the wiretap intercepts that were introduced in evidence at this trial.

[193] The evidence from the retired former officers in the plain clothes unit at 52 Division, when it is considered with all of the evidence, including the intercepts, does not call into question the existence from an objective perspective of reasonable and probable grounds or the subjective belief of Mr. Evans and other arresting officers in the existence of reasonable and probable grounds for the charges that was attested to by the Informations sworn by Mr. Durham.

Should an adverse inference be drawn from the failure of the TPS Defendants to call Mr. Evans or Mr. Durham as a witness

[194] In support of his submission that Mr. Evans and other arresting officers knew that they did not have reasonable and probable grounds to lay the charges against Mr. McCormack, Mr. McCormack contends that the individual TPS Defendants as well as Ms. Alborino, who were involved with the investigation of Mr. McCormack and his arrest, were able to testify as to their belief that there were reasonable and probable grounds for the charges and, where they chose not to testify, I should draw an adverse inference that their evidence, if given, would not have supported a finding that the arresting officers had an honest belief in the existence of reasonable and probable grounds for the charges.

[195] In support of this submission, Mr. McCormack cites the following passage from Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 6th Edition (Toronto: LexisNexis Canada, 2022), at para. 6.509:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. The determination of whether to draw an adverse inference due to failure to call a witness is in the discretion of the court.

[196] The Sopinka text, at paras. 6.510 and 6.511, includes the following additional passages:

An adverse inference should not be drawn if either party could have called the witness if they thought it was important.

An adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden of proof.

[197] Where a party has not adduced sufficient evidence to discharge their burden of proof, and the adverse party decides not call witnesses to testify who may have material evidence to give, no adverse inference should be drawn because the failure of a party to meet the burden of proof is a sufficient explanation for the opposing party’s failure to call witnesses.

[198] There was no undertaking given by the Defendants to call witnesses at trial. It was open to Mr. McCormack to seek such an undertaking or use rule 53.07 of the Rules of Civil Procedure to call any of the individual Defendants as a witness at the trial.

[199] In these circumstances, there is no proper basis for me to draw an adverse inference because the Defendants chose not to call Mr. Evans or other witnesses at the trial.

[200] Mr. McCormack has not shown that the charges are not justified from an objective perspective. Mr. McCormack has not shown that Mr. Evans or other officers did not subjectively believe that there were reasonable and probable grounds for the charges because they were directed, or chose, to bring unjustified charges against Mr. McCormack for the purpose of bringing him and his family to their knees and, for this reason, acted without regard for the law to disgrace Mr. McCormack and destroy his life.

[201] For these reasons, I conclude that Mr. McCormack has failed to show an absence of reasonable and probable grounds for the charges. As a result, the Defendants are not liable for the tort of malicious prosecution.

Has Mr. McCormack shown that the Defendants’ conduct in setting the criminal process in motion was fuelled by malice?

[202] I have concluded that Mr. McCormack has failed to meet his onus of showing that there was an absence of reasonable and probable grounds for the charges against him. As a result of this conclusion, Mr. McCormack has failed to satisfy the third element of the tort of malicious prosecution. Notwithstanding this conclusion, I go on to address the fourth element of this tort as explained in Miazga.

[203] In Miazga, at paras. 78-79, the Supreme Court of Canada held that in order to prove malice, a plaintiff must bring evidence that the defendant was acting pursuant to an improper purpose inconsistent with his or her office. If the court concludes that the action (in that case, a prosecution) was initiated or continued based on an honest, albeit mistaken, professional belief that reasonable and probable cause did in fact exist, the actor will have acted for the proper purpose of carrying the law into effect and the action must fail.

[204] In Miazga, at para. 80, the Supreme Court of Canada observed that it is not always possible for a plaintiff to adduce direct evidence of the defendant’s lack of belief. In appropriate circumstances, the absence of a subjective belief in the existence of sufficient grounds may be inferred. However, even if the plaintiff succeeds in proving that the defendant did not have a subjective belief in the existence of reasonable and probable cause, this does not suffice to prove malice, as the defendant’s failure to fulfil his or her proper role may be the result of inexperience, incompetence, negligence or even gross negligence. Malice requires a plaintiff to prove that the defendant wilfully perverted or abused his or her office or the process of criminal justice.

[205] Mr. McCormack also relies on Oniel v. Metropolitan Toronto Police Force, 2001 CanLII 24091 (ONCA). In Oniel, at para. 49, Borins J.A., writing for the majority of the Court, described the meaning of malice from his review of the authorities:

My review of the authorities indicates that the core meaning of malice is the use of the criminal justice system for an improper purpose, the proper use of it being to bring before the court of person whom the prosecutor has reasonable and probable cause to believe has committed a criminal defence. Although the prosecutor may have reasonable and probable cause to commence a prosecution, if the prosecutor obtains information which suggests that the person probably did not commit defence, or recklessly disregards advice that such information could be obtained through routine investigative steps, the prosecutor lacks reasonable and probable cause to continue the prosecution, and malice may be inferred.

[206] There is a high threshold to prove malice on the part of police officers: Forrest v. The Queen, 2012 ONSC 429, at para. 43. Here, Mr. McCormack submits that the evidence shows that Mr. Evans (and other officers) engaged in a deliberate effort to disgrace Mr. McCormack and destroy his life, and that the charges were laid to accomplish this objective. The evidence does not support Mr. McCormack’s contention. There is no evidence that Mr. Evans was directed to disgrace Mr. McCormack or that he chose to charge Mr. McCormack with offences from any personal animus. Mr. McCormack has failed to show the absence of reasonable and probable grounds for the charges. He has failed to show that the arresting officers wilfully perverted or abused their offices through the charges against Mr. McCormack and their involvement in the prosecution of these charges.

Claim founded in the tort of negligent investigation

[207] Mr. McCormack pleads that the Defendants Bryce Evans, Cam Durham and/or Kim Derry abused their respective duties by negligently investigating the charges against him. Mr. McCormack pleads that the Defendant Julian Fantino was responsible for putting into place policies and procedures for training and/or supervising Mr. Evans, Mr. Durham or Mr. Derry and that he failed to properly train or supervise one or more of these Defendants.

[208] In Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, McLachlin C.J., writing for the majority, held, at para. 3, that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. In so concluding, McLachlin C.J. held that the law of negligence does not demand a perfect investigation. It only requires that the police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.

[209] In Hill, at para. 68, McLachlin C.J. explained how the standard of care for the purpose of a civil action for negligent investigation co-exists with the criminal standard the police must meet to arrest and charge a suspect:

A number of considerations support the conclusion that the standard of care is that of a reasonable police officer in all the circumstances. First, 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. The particular conduct required is informed by the stage of the investigation and applicable legal considerations. At the outset of investigation, the police may have little more than hearsay, suspicion and a hunch. What is required is that they act as a reasonable investigating officer would in those circumstances. Later, in laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them. The reasonable officer standard entails no conflict between criminal standards (Charron J. at para. 175). Rather, it incorporates them, in the same way it incorporates an appropriate degree of judicial discretion, denies liability for minor errors or mistakes and rejects liability by hindsight. In all these ways, it reflects the realities of police work.

[210] The existence of reasonable and probable grounds is fatal to the claim for negligent investigation. See Hill, at para. 68; J.H. v. Windsor Police Services Board et al., 2017 ONSC 6507, at para. 41.

[211] Mr. McCormack has failed to show the absence of reasonable and probable grounds for the charges against him. As a result, his claim based on the tort of negligent investigation fails.

[212] The TPS Defendants submit that Mr. McCormack’s claim must also fail because he has not proven that he suffered any damages that were caused by a negligent investigation or other tortious conduct. The TPS Defendants submit that Mr. McCormack has not shown that the Defendants’ conduct was the “but-for” cause of the harm he suffered due to his arrest and prosecution. The TPS Defendants submit that Mr. McCormack’s own culpable actions and statements – that the police did no more than intercept and overhear – caused his damages.

[213] In Hill, McLachlin C.J., at paras. 62-64, addressed the argument that recognizing tort liability for negligent investigation raises the possibility that persons who have been acquitted of the crime investigated and charged, but who are in fact guilty, may recover against an officer for negligent investigation. McLachlin C.J. noted that the plaintiff must establish through evidence that the damage incurred would not have been suffered but for the police’s negligent investigation. Evidence going to factual guilt or innocence of the plaintiff, including the results of any criminal proceedings, may be relevant to the causation inquiry.

[214] In Hill, McLachlin C.J., at paras. 92-93, recognized that the police must be allowed to investigate and apprehend suspects and should not be penalized from doing so under the tort of negligent investigation unless the treatment imposed on a suspect results from a negligent investigation and causes compensable damages that would not have occurred but for the police’s negligent conduct.

[215] In Obiorah v. The Ottawa Police Services Board, 2019 ONSC 194, the Court was called upon to decide whether evidence obtained through execution of a search warrant that was later set aside as having been obtained by a Charter breach that was not committed in good faith was, nevertheless, admissible in a civil action. The plaintiff brought an action for malicious prosecution and breaches of his ss. 7 and 8 Charter rights arising out of his arrest and charge. When he was arrested, the plaintiff had possession of illegal drugs, a firearm, and significant amounts of cash. This evidence was later excluded in the plaintiff’s criminal proceedings on the basis that his s. 8 Charter rights had been breached and that the breach had not been committed in good faith.

[216] The defendant brought a motion for summary judgment dismissing the plaintiff’s claims. The motion judge recognized that there had been a determination in the criminal proceedings that the plaintiff’s s. 8 Charter rights were infringed. The motion judge, at para. 33, considered the treatment of the evidence that was excluded in the criminal proceedings for the civil claims and held:

In my view, the Plaintiff has misinterpreted the effect of Justice Frasers’s finding of a Charter breach and his resulting exclusion of the evidence for the purposes of his criminal trial. His decision does not erase the evidence from the analysis of reasonable and probable grounds at the time Mr. Obiorah was arrested and charged.

The motion for summary judgment was granted and the plaintiff’s claim was dismissed.

[217] Mr. McCormack’s own conduct and statements that the police intercepted and overheard provided reasonable and probable grounds for the charges and caused them to be laid.

[218] Mr. McCormack has not shown that the Defendants’ conduct was the cause of his damages due to his arrest and prosecution.

Claim founded in the tort of misfeasance in public office

[219] In Odhavji Estate v. Woodhouse, 2003 SCC 69, at paras. 23 and 32, the Supreme Court of Canada identified the two elements of the tort of misfeasance in public office. First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. The Supreme Court of Canada held that alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts, specifically, that the tortious conduct was the legal cause of the plaintiff’s injuries, and that the injuries suffered are compensable in tort law.

[220] In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office: Odhavji, at para. 28.

[221] Mr. McCormack submits that Mr. Evans and Mr. Durham engaged in a course of conduct through their investigations during Project Bar District (including Mr. Evans’ use of Confidential Informer status as an investigative technique), the charges against Mr. McCormack, and their involvement in the prosecutions, that, fairly viewed, show a deliberate effort to disgrace Mr. McCormack and destroy his life with no regard for the law or their duties as police officers.

[222] I have concluded that the arresting officers had reasonable and probable grounds for the charges against Mr. McCormack. I do not accept that the evidence in respect of Mr. Evans’ role in obtaining the ITOs shows that he was deliberately acting in violation of his obligations as a police officer to harm Mr. McCormack. There is no evidence that Mr. Evans or Mr. Durham bore any personal hostility toward Mr. McCormack when the charges were laid or after. As I have noted, there is no evidence that Mr. Evans or Mr. Durham were directed, or chose, to bring charges to disgrace Mr. McCormack or for any improper purpose.

[223] Mr. McCormack has failed to prove the elements for the tort of misfeasance in public office.

Claim founded on the tort of intentional infliction of mental and emotional distress

[224] The tort of intentional infliction of mental suffering has three elements: (a) the defendant’s conduct was flagrant and outrageous; (b) the defendant’s conduct was calculated to harm the plaintiff; and (c) the defendant’s conduct caused the plaintiff to suffer a visible and provable illness. See Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, at para. 41.

[225] A plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur: Boucher, at para. 44.

[226] The conduct of Mr. Evans in obtaining the wiretap authorizations and designating Neil Peluso as a confidential informant was improper, but Mr. McCormack has not shown that it was calculated to harm him. The wiretap authorizations allowed the conversations to be recorded, but they did not cause the participants in those conversations, including Mr. McCormack, to make the statements that were recorded. I do not accept that Mr. Evans conduct in charging Mr. McCormack was for the purpose of inflicting harm on him.

[227] Mr. McCormack has failed to prove the elements of this tort.

Alternative claim for damages for breach of Mr. McCormack’s Charter rights

[228] Mr. McCormack pleads that by reason of his unlawful arrest, detention and the illegal obtaining and use of the Authorization to Intercept Private Communications, his rights under the Charter were breached. He claims, in the alternative to damages for torts pleaded against the Defendants, damages pursuant to s. 24(1) of the Charter.

[229] In Vancouver (City) v. Ward, 2010 SCC 27, at para. 4, the Supreme Court of Canada held that damages may be awarded for a Charter breach under s. 24(1) where appropriate and just.

[230] The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. See Vancouver (City) v. Ward, at para. 4.

[231] Mr. McCormack relies on the prior judicial decision of Justice Beatty in which he found that Mr. Evans misled Neil Peluso as to his confidential informant status and that Mr. Peluso was improperly conferred confidential informant status because, in fact, he was recruited as a police agent. Mr. McCormack relies on statements made by Justice Croll in her decision on the s. 11(b) application that the conferral of confidential informant status on Ms. Pinn as an investigative technique was “problematic”, especially because she was a civilian employee of the TPS. Mr. McCormack relies on statements made by Crown counsel in the criminal proceedings, including on August 3, 2010, where Crown counsel withdrew the remaining charges against Mr. McCormack and stated that if the Garofoli application (scheduled to be heard that day) proceeded, a finding of a s. 8 Charter violation would be inevitable.

[232] A Garofoli application to exclude evidence obtained from a search warrant on the basis of a sub-facial challenge to the warrant involves a procedure by which (i) erroneous information in an ITO that should not have been included is excised, (ii) erroneous information that would have been appropriate for inclusion if presented accurately will sometimes be corrected by “amplification” to that it can be included during the sufficiency review, (iii) when material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it, and (d) amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is a minor, technical error and made in good faith. When excision and amplification is complete, the reviewing court determines whether based on the corrected ITO, there remains a reasonable basis upon which the authorizing justice, acting judicially, could find reasonable grounds to believe that an offence has been committed and the evidence of the offence would be found at the specified place. See R. v. Downes, 2022 ONSC 4308, at paras. 40-42.

[233] Even after excision and amplification, courts have the discretion to set aside a warrant on the grounds of subversion despite the existence of reasonable and probable grounds for its issuance. The police misconduct must be egregious enough to subvert the judicial authorization process through deliberate non-disclosure (or similar conduct). The residual discretion to set aside a warrant on this basis is exercised having regard to the totality of the circumstances: Downs, at para. 43.

[234] Mr. McCormack submits, relying on Downs, that an analysis involving excision and amplification of the ITO like the one that would be undertaken in a Garofoli application is not needed because there is evidence of misconduct by Mr. Evans (through deliberate non-disclosure that two of the persons put forward as confidential informants were, in fact, not confidential informants) that is so subversive of the process of obtaining the authorizations as to amount to an abuse of process and an infringement of Mr. McCormack’s right under s. 8 of the Charter.

[235] In my ruling on Mr. McCormack’s objection to the admissibility of the wiretap intercepts, I concluded that I was not satisfied that the evidentiary record before me (including evidence that Mr. Evans failed to disclose that two persons put forward as confidential informants were, in fact, not confidential informants) was sufficient for me to decide that Mr. Evans’ conduct was so subversive of the search warrant process as to amount to an abuse of process such that the warrants were obtained by infringing Mr. McCormack’s rights under s. 8 of the Charter.

[236] In the criminal proceedings involving the charges against Mr. McCormack, the Garofoli application to decide whether the authorization to intercept communications and the search warrant should be set aside was not heard or decided and, therefore, the Court was not called on to consider the totality of the circumstances in the criminal proceedings to make this determination. These circumstances would have included the effect of excision and amplification of the ITO and whether there remained a reasonable basis to conclude that the authorizing judge could find reasonable grounds to authorize the interception of communications and the search warrant. This analysis would need to be done before an analysis would be undertaken of whether the court should exercise residual discretion to set aside the warrant because of subversion of the process.

[237] In R. v. Sadikov, 2014 ONCA 72, the Court of Appeal, in the context of an appeal of acquittals of criminal charges, confirmed, at paras. 83-87, that warrant review begins from a premise of presumed validity and requires a contextual analysis. The existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant but are not dispositive of the review on a Garofoli application. Evidence of the totality of the circumstances in the criminal proceedings that would be needed for a reviewing judge to set aside the authorizations for the intercepts and the search warrant on the basis of a Charter breach is not before me in this civil action. Mr. McCormack has not made a Garofoli application in this action to set aside the authorizations or the search warrant, and he has not made submissions about how Ms. Alborino’s affidavit in support of the authorizations should be excised or amplified to take into account that Mr. Peluso and Ms. Pinn were not confidential informants. In the absence of this type of application, where evidence of the totality of the circumstances can be considered before a court decides whether to set aside a warrant, I am unable to conclude that Mr. McCormack’s rights under s. 8 of the Charter were infringed by the authorizations to intercept his communications or the search warrant.

[238] I go on to consider whether, if I had concluded that Mr. McCormack’s right under s. 8 of the Charter was breached, an award of damages under s. 24(1) of the Charter is a just and appropriate remedy.

[239] An action for public law damages – including constitutional damages – lies against the state and not against individual actors. An action for public law damages is not a private law action in the nature of a tort claim for which the state is vicariously liable but a distinct public law action against the state for which the state is primarily liable. Actions against individual actors should be pursued in accordance with existing causes of action. The underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages against the state. See Vancouver (City) v. Ward, at para. 22.

[240] Mr. McCormack relies on Elmardy v. Toronto Police Services Board, 2017 ONSC 2074 in support of his claim for Charter damages against TPS. In Elmardy, Charter damages were awarded against the Toronto Police Services Board arising from a Charter breach where a Black man was stopped by two police officers, detained, and, during his detention, punched twice, leaving him lying on his handcuffed hands in the cold. The Divisional Court cited the Vancouver (City) v. Ward case for general principles in respect of Charter damages. The Court noted that Charter damages are awarded against the state, not the individual tortfeasor for whose actions the state may or may not be vicariously liable, and that the objectives of Charter damages differ from the objectives of punitive damages that may be awarded against a private individual. The Court held that the driving force behind the Charter breaches in that case - racial profiling - is a phenomenon that has been recognized as a problem in our police services for some time, and has a serious impact on the credibility and effectiveness of our police services. The Court awarded damages in an amount sufficient to vindicate society’s interest in having a police service comprised of officers who do not engage in racial profiling and that sends a message that this conduct must stop.

[241] In Abboud v. Toronto Police Services Board, 2016 ONSC 1052, the plaintiff claimed damages for breach of his rights under s. 8 of the Charter where there was a finding that the police did not have reasonable and probable grounds to obtain a search warrant. The motion judge found that the plaintiff had not provided evidence that Charter damages would serve one or more of the functions of compensation, vindication, or deterrence of future Charter breaches by the state. The claim for Charter damages was denied.

[242] This case is unlike Elmardy in material respects. There is no evidence that the conduct by Mr. Evans was part of a general practice of the TPS that affects citizens generally. There is no evidence that the actions of Mr. Evans harmed the state and society as a whole, as is required to engage vindication as an object of constitutional damages. There is no evidence that the conduct of Mr. Evans and Mr. Durham is such that regulation of government behaviour, generally, is needed in order to achieve compliance with the Constitution. See Vancouver (City) v. Ward, at paras. 28-29.

[243] The threshold for liability under the Charter is distinct and autonomous from that developed under private law. Nevertheless, as McLachlin C.J. held in Vancouver (City) v. Ward, at para. 43, “the existing causes of action against state actors embody a certain amount of ‘practical wisdom’ concerning the type of situation in which it is or is not appropriate to make an award of damages against the state”.

[244] Mr. McCormack does not allege, nor did he tender evidence to show, that the TPS engaged in a pattern of systemic misconduct involving breaches of Charter rights of citizens, generally. Mr. McCormack’s allegations of Charter breaches in this action arise out of the allegedly tortious conduct of the individual defendants, Mr. Evans and Mr. Durham. Mr. McCormack pleads that the TPS is responsible in law for torts committed by its members in the course of their employment including the individual TPS Defendants. Mr. McCormack has not shown that the damages he claims were caused by tortious conduct by the Defendants.

[245] I have concluded that the Defendants are not liable for the torts pleaded by Mr. McCormack. This conclusion informs my conclusion with respect to whether, had I found a Charter breach, it would be appropriate to make an award of damages under s. 24(1) of the Charter against the TPS.

[246] I conclude that Mr. McCormack has failed to show that Charter damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.

Claim against the Attorney General of Canada (“AGC”)

[247] In the Statement of Claim, Mr. McCormack pleads that Ms. Alborino, an RCMP officer, breached her duties as a police officer by acting as an informant on an authorization and search in that she relied on a concocted report without taking any legitimate steps to verify any of the information contained therein.

[248] Mr. McCormack submits that the AGC is responsible for torts committed by Ms. Alborino including malicious prosecution, misfeasance in public office, and intentional infliction of emotional distress. Mr. McCormack does not plead that Ms. Alborino is liable for the tort of negligent investigation.

[249] As a part of his case, Mr. McCormack read into evidence parts of the examination for discovery of Mr. Evans. In one of the the passages read into evidence, Mr. Evans answered on his examination for discovery that at the preliminary hearing, he testified that he believes he told Ms. Alborino that the promise of confidentiality given to Neil Peluso was a ruse and that he agrees that he believes he told her this.

[250] To the extent that Mr. McCormack relies on evidence read in as part of his case from the examination for discovery of Mr. Evans, this evidence is not evidence against Ms. Alborino under rule 31.11 of the Rules of Civil Procedure. A party’s discovery evidence can only be read in at trial as part of the case against that party. See Cain v. Peterson, 2005 CarswellOnt 5134, at para. 11.

[251] Mr. McCormack read into evidence at this trial as part of his own case parts of the examination for discovery of Ms. Alborino. In these passages, Ms. Alborino stated that she was always under the impression that Neil Peluso was a confidential informant and that she relied in information given to her by Mr. Evans in this regard. In discovery evidence read in, Ms. Alborino gave evidence that during the time she was preparing the affidavits used for applications for authorizations to intercept private communications, and during the entire period that she was involved in Project Bar District, she only knew Neil Peluso as a confidential informant, and that was her belief when she swore these affidavits.

[252] Ms. Alborino stated that she knew that Mr. Peluso was one of the targets of the Project Ora investigation and that there was reason to believe that he was involved in serious criminal activity. Ms. Alborino did not make an assessment of the credibility or reliability of information provided by Mr. Peluso. In passages read in from her examination for discovery, Ms. Alborino stated that she articulated everything about Mr. Peluso’s activity that was known to her, or to the investigators, at the time she swore her affidavits. Ms. Alborino states in her discovery evidence that she asked Mr. Evans to prepare a report of his investigations to date in a typewritten format because she could not read his handwritten notes.

[253] This evidence shows that Ms. Alborino only knew Neil Peluso as a confidential informant and that she relied on information provided to her by Mr. Evans, a fellow police office, in this regard. I accept this evidence. There is no evidence that Ms. Alborino knowingly made untrue statements in her affidavits. Ms. Alborino describes Mr. Peluso’s reliability in her affidavits as unproven and unknown. Ms. Alborino did not conceal Mr. Peluso’s record of criminality from the authorizing judge, who was provided with the information needed to assess the information given by Mr. Peluso. Ms. Alborino was entitled to rely on Mr. Evans as the source of information that Mr. Peluso was a confidential informant.

[254] Mr. McCormack submits that when it was discovered that Mr. Peluso and Ms. Pinn were not confidential informants, but police agents, Ms. Alborino failed to recommend that the charges against Mr. McCormack be abandoned, and thereby acted improperly. This submission does not form part of Mr. McCormack’s case against the AGC, as pleaded, based on Ms. Alborino’s conduct. Once the charges against Mr. McCormack were brought, the Crown was responsible for deciding whether, given the available information, the charges should be discontinued. Mr. McCormack has not shown that Ms. Alborino acted improperly after the charges were laid.

[255] Mr. McCormack submits that an adverse inference should be drawn against the AGC because Ms. Alborino failed to testify at the trial.

[256] In Mann Engineering Ltd. v. Desai, 2021 ONSC 7580, two defendants decided not to testify after the plaintiffs had closed their case. The court refused to draw an adverse inference against the two defendants because there was a “reasonable basis for their position that the plaintiffs had failed to prove their case on a balance of probabilities”. The Court held that the defendants were entitled to rely on their discovery evidence which was read into evidence as part of the plaintiffs’ case.

[257] I accept that it was reasonable for the AGC to take the position that Mr. McCormack had not proven his case with respect to the conduct of Ms. Alborino after hearing his case in chief.

[258] With respect to Mr. McCormack’s submission that I should draw an adverse inference, I reach the same conclusion I did when this submission was made in respect of the TPS Defendants. I decline to draw an adverse inference against the AGC because Ms. Alborino did not testify at the trial.

[259] Mr. McCormack has failed to prove that Ms. Alborino engaged in any tortious conduct in respect of Project Bar District. Mr. McCormack has failed to prove the elements of the torts pleaded against Ms. Alborino. The AGC is not liable for the claims against it.

Compensatory Damages

[260] I conclude that the Defendants are not liable to Mr. McCormack for the claims made in the Statement of Claim. Nevertheless, I go on to make findings about the amount of Mr. McCormack’s claim for damages.

Damages for loss of income and pension benefits

[261] In support of his claim for compensatory damages for loss of income and pension benefits, McCormack relies on expert evidence from David Wolgelerenter, an actuary.

[262] Mr. Wolgelerenter calculated, based on assumptions provided to him, Mr. McCormack’s income loss resulting from him no longer working with TPS after his resignation on March 11, 2009 and also for losses between 2004 and 2009.

[263] Mr. Wolgelerenter was asked to assume that due to his suspension, Mr. McCormack only earned his salary and not additional amounts he would have earned had he continued to be actively employed. Mr. Wolgelerenter assumed that Mr. McCormack would have earned $20,000 per year of additional amounts above the base salary he would have earned as a sergeant. Mr. Wolgelerenter was asked to assume that Mr. McCormack would have been promoted to sergeant by 2005. Mr. Wolgelerenter was asked to assume that had it not been for his suspension and the events that followed, Mr. McCormack would have worked until November 30, 2021 (when he would have been 62.43 years old). Mr. Wolgelerenter was asked to assume that after Mr. McCormack retired, he would have worked as a security consultant or another role until age 65, earning 50% of what he was earning as a sergeant in the police service. Mr. Wolgelerenter calculated a pension loss as a result of Mr. McCormack not receiving his pension based on employment until November 30, 2021.

[264] Mr. Wolgelerenter calculated total lost earnings for the years 2005 to November 30, 2021 in the amount of $2,021,580. Mr. Wolgelerenter calculated based on information provided to him that from 2005 to 2021, Mr. McCormack earned $416,917 that should be deducted in the calculation of his loss. Mr. Wolgelerenter calculated the present value of Mr. McCormack’s past pension income in the absence of the incidents to be $34,650 and the present value of the loss of his OMERS pension to be $303,145. Mr. Wolgelerenter calculated the present value of Mr. McCormack’s future income from the age of his expected retirement from TPS to age 65 in the amount of $92,234.

[265] Based on the assumptions he was asked to make, Mr. Wolgelerenter calculates Mr. McCormack’s total losses to be $2,034,692.

Effect of Mr. McCormack’s retirement

[266] Mr. McCormack was suspended from active service with the TPS in April 2004. Under the collective agreement, his employment could not be terminated until the charges against him under the Police Services Act were completed. These charges were put on hold pending disposition of the criminal charges. Mr. McCormack received his base salary during his suspension, but he did not have the opportunity to work overtime or engage in pay duties or attend court appearances where he could earn additional income.

[267] Mr. McCormack resigned from the TPS in March 2009. He submitted a letter of resignation that he delivered on March 10, 2009.

[268] In this letter, Mr. McCormack refers to his suspension from active duty as a police officer in April 2004 during which he has been receiving base salary but not additional income from services such as plainclothes duty, court attendances, and paid duty. Mr. McCormack states that he is turning 50 in June 2009 at which time he will lose his right to commute his pension and the ability to rely on these funds to address his immediate and pressing financial burdens. He states that he is advised that changes to the pension formula to be implemented effective April 1, 2009 will significantly reduce all members’ pensions unless commuted before that date. Mr. McCormack states that remaining on the force will have significant repercussions for him that he cannot absorb and as a result he has no alternative than to resign.

[269] Mr. McCormack testified that he resigned for many reasons, including to be relieved from the conditions requiring him to report to headquarters twice a day, the restrictions preventing him from coming to Toronto to attend activities with his children, his frustration with the time being taken for resolution of the criminal charges against him that would allow him to clear his name, the shadow of the charges and their effect on his reputation, his anxiety about how his career could continue even if he was acquitted, and the financial reasons explained in his resignation letter. He testified that his daughter’s medical treatment and the well being of his family took priority and he tendered his resignation.

[270] Mr. McCormack confirmed that he was not coerced, directed, or told by anyone else to resign. Mr. McCormack was represented by legal counsel when he resigned. When he delivered his notice of resignation, Mr. McCormack knew that his lawyers in the criminal proceedings had brought a motion to dismiss the corruption charges against him for delay. The motion was scheduled to be heard in May 2009.

[271] I accept that Mr. McCormack had many reasons, including financial reasons, to resign from the TPS. I am satisfied, however, that his resignation was voluntary and not coerced. Mr. McCormack’s resignation was effective to terminate his employment with the TPS. See Head v. Ontario Provincial Police Commissioner, 1981 CarswellOnt 665 (ONCA), at para. 6; aff’d 1985 CanLII 77 (SCC), [1985] 1 S.C.R. 566.

[272] The effect of Mr. McCormack’s voluntary resignation from his employment as a police officer with TPS is that he cannot recover damages from TPS for loss of income after his resignation. The loss of this income was not caused by any tortious conduct by the Defendants but by Mr. McCormack’s resignation. By resigning, Mr. McCormack created income loss that he reasonably could have avoided. Mr. McCormack cannot recover such a loss. See British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, at para. 176.

Assumption that Mr. McCormack would have worked until November 30, 2021

[273] Mr. McCormack’s evidence is that he loved his job and had his active employment not ended with his suspension, and had the charges against him not been laid, and had he not resigned, he intended to continue his active employment until he was between the ages of 60 and 65.

[274] On the evidence before me, I accept that if the charges and suspension had not occurred, and had Mr. McCormack not chosen to voluntarily resign, he would have continued his active employment until November 30, 2021.

[275] The retirement date is not a factor in the calculation of damages because of my conclusion that Mr. McCormack is unable to recover damages for loss of income as a police officer after March 10, 2009 when he voluntarily resigned from his employment with the TPS.

Assumption that Mr. McCormack would have been promoted to sergeant in 2005

[276] Mr. McCormack claims damages based on the assumption that had his active employment with the TPS continued, he would have been promoted to Sergeant by 2005 and, as a result, his income would have been higher.

[277] Mr. McCormack relies on evidence of his appraisals and evidence from other officers who worked with him about his career trajectory as an officer with the TPS. The officers who worked with Mr. McCormack at 52 Division and testified at trial held him in high regard as a police officer. Mr. Bell described Mr. McCormack as an excellent officer who was respected, hard working, knowledgeable, and knew how to do things to fulfill his duties as an officer. Mr. McCormack was assigned to be a team leader on the team to which he was assigned. Mr. Bell testified that he has no doubt that Mr. McCormack would have been promoted if his career had not be interrupted by the charges.

[278] Mr. McCormack took the sergeants examination but did not pass it. Mr. Bell testified that the exam was not an easy one to pass and that an officer could expect to write it several times before passing.

[279] No evidence was called by the Defendants about Mr. McCormack’s performance evaluations or to contradict the evidence that he was held in high regard by his colleagues. I find that Mr. McCormack has shown that it is more likely than not that had his career as an active officer continued without the interruption from the charges against him, he would have been promoted to sergeant by 2005. If I found the Defendants liable for one or more of the torts pleaded, I would have accepted the assumption in this regard made by Mr. Wolgelerenter.

Assumption that Mr. McCormack would have worked as a security consultant (or in similar work) until November 30, 2021 earning 50% of his last year’s earnings as a police officer

[280] Mr. McCormack’s evidence is that he intended to work as a security consultant or in similar work after his retirement until he turned 65. He claims damages for loss of income during this period of time.

[281] This evidence of Mr. McCormack’s intentions in this regard, given years after his resignation, is, in my view, too speculative to be accepted as having been proven on a balance of probabilities. I would not accept this assumption if I were to award damages to Mr. McCormack.

[282] The TPS Defendants called Matt Mulholland, a certified public accountant, as an expert witness to give evidence concerning the calculation of Mr. McCormack’s compensatory damages for loss of income. Mr. Mulholland calculated this loss, based on four different scenarios with different assumptions as ranging from $95,146 to $1,513,621.

[283] In his evidence, Mr. Mulholland stated that the assumptions underlying the calculation in the first scenario are that Mr. McCormack would continue as a First Class Constable with the TPS with a base salary and additional $20,000 in pay per year. Mr. Mulholland calculated Mr. McCormack’s past loss of income from May 3, 2004 to March 11, 2009 (when Mr. McCormack resigned) to be $95,146.

[284] If I had held that one or more of the Defendants are liable to Mr. McCormack for torts he pleads against them, I would have assessed his damages for lost income at the amount calculated in Mr. Mulholland’s first scenario, adjusted to account for a promotion to sergeant effective at the beginning of 2005.

Claim for general damages

[285] Mr. McCormack testified that as a result of the tortious conduct toward him by the Defendants, his reputation was ruined. Mr. McCormack is a member of a family of police officers. His father was at one time the Chief of Police of the TPS. All but one of his four siblings were police officers.

[286] Mr. McCormack testified that following his suspension, he was under tremendous stress, he was unable to sleep, and he experienced a loss of appetite and significant weight loss.

[287] Mr. McCormack did not see his family doctor about his health issues. He sought psychological counseling on seven occasions in 2004 and two occasions in 2005. He testified that after his suspension and while the charges were pending, he was filled with anxiety and experienced a feeling of helplessness. His situation took a huge toll on his wife, and Mr. McCormack felt totally responsible. Mr. McCormack stopped seeing the psychological counselor in 2005 because he did not feel that the sessions were helpful. Over time, his physical health started to come back and he resumed exercise and tried to maintain his physical health.

[288] The parties submitted a joint report from Dr. Philip Klassen, a psychiatrist retained by the TPS Defendants, and by Dr. Julian Gojer, a psychiatrist retained by Mr. McCormack. In the joint report, they state that they agree on the issue of diagnosis. They agree that Mr. McCormack may suffer from persistent depressive disorder. They agree that the events giving rise to these symptoms was not a traumatic event, in the sense of criterion of post-traumatic stress disorder, rather might be better framed as a “moral injury”. Dr. Goger’s opinion is that Mr. McCormack is not exaggerating his symptom burden, in terms of “trauma” symptoms. Dr. Klassen is of the opinion that some degree of exaggeration is present. They agree that the gap in opinion is not large.

[289] In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, the Supreme Court of Canada confirmed that the law does not recognize upset, anxiety, or other mental states that fall short of psychological disturbance that rises to the level of serious and prolonged personal injury. Mr. McCormack’s understandable anxiety about the charges does not rise to the level of compensable personal injury.

[290] If I had held that one or more of the Defendants is liable to Mr. McCormack for damages, I would assess general damages for physical injuries caused by tortious conduct of a Defendant or the Defendants at $15,000.

Disposition

[291] For these reasons, Mr. McCormack’s action is dismissed.

[292] If the parties are unable to resolve costs, they may make written submissions in accordance with a timetable and with page lengths to be agreed upon by counsel and approved by me.

CAVANAGH J.

Released: July 26, 2023