Court File and Parties
Ontario Superior Court of Justice
Between:
Norma Diamond, Plaintiff
– and –
His Majesty the King in Right of Ontario, Defendant
Counsel:
Davin Charney, for the Plaintiff
Sarah Pottle and Michael Saad, for the Defendant
Heard: June 23-27, 2025 (Kingston)
Reasons for Decision
Hackland J.
Overview
1The plaintiff Norma Diamond alleges the defendant representing the OPP is liable for false arrest and negligent investigation. These allegations arise out of an assault charge laid against the plaintiff by OPP constable Morrison, who together with another officer was dispatched to her home on the evening of December 2, 2017. The police were responding to several 911 calls from the plaintiff's husband, advising that his wife had a knife and was threatening to kill herself. After a brief investigation at her home and interviewing the husband, the plaintiff was arrested, charged with assault, was taken to a nearby hospital and assessed in the emergency room and discharged. She was then taken by constable Morrison to a nearby OPP station, where she provided a statement about the incident and was then released on a Promise to Appear.
2Some 20 days later, the plaintiff attended provincial court with her lawyer and entered into a Common Law Peace Bond with the consent of the Crown, whereupon the information against her was withdrawn. Her lawyer assured the judge he was satisfied there was a basis for the Peace Bond, the terms of which were that for a period of one year she would keep the peace and be of good behavior, particularly with respect to Andrew Lloyd (her spouse). He also assured the judge his client wished to enter into the Peace Bond.
3In January of 2020, the plaintiff commenced this proceeding under the Rule 76 Simplified Rules procedure. The plaintiff and both OPP officers filed affidavits and were cross examined at trial. Each side also called an expert witness dealing primarily with the negligent investigation allegation and the plaintiff called a psychologist in support of her damages claim. Each of these witnesses filed an affidavit containing their expert's report and were cross examined at trial. The plaintiff's former spouse (Mr. Lloyd) did not testify or otherwise participate in the proceeding.
Issues
4Plaintiff's counsel clarified in his submissions that the two causes of action his client was advancing in this proceeding are (1) false arrest and (2) negligent investigation. The plaintiff's arrest carried out by OPP Constable Morrison at her home on December 2, 2017 and subsequent investigation that evening was the focus of the plaintiff's complaints.
False Arrest: The Facts
5The law is well settled that a police officer must have "reasonable and probable grounds" to effect a lawful arrest. For economy of expression, I will refer to this as "RPG". The key issue in this case is whether officer Morrison had RPG at the time he arrested the plaintiff. There is a subjective and objective component to this question. Did he honestly believe he had RPG at the time of arrest and was such belief objectively reasonable? For the reasons explained below, the court concludes that officer Morrison honestly believed he had RPG to arrest the plaintiff for assault and the court further finds it was objectively reasonable to do so, primarily because of what the husband told officer Morrison about his interactions with his wife before he made the 911 calls.
6I will summarize the information Officer Morrison had up to the point when he placed the plaintiff under arrest, in chronological order:
He was advised by police dispatch to attend the residence and that 911 calls were received from the husband (Mr. Lloyd) indicating his wife (the plaintiff) was threatening to kill herself and had a knife in her hands and she had been having 'ongoing issues' lately;
Prior to arrival dispatch advised that husband had reported the knives were now back in the kitchen and his wife was now having a shower;
Upon arrival at the residence he (and another officer who arrived at about the same time in a separate police vehicle) went to the door which was answered by the husband who seemed to be on the phone…the officers walked in and attempted to speak to the wife who was upset and appeared unwilling to answer questions;
He (officer Morrison) went into the living room to question the husband, while the other officer attempted to speak to the wife in the kitchen;
Husband disclosed he had grabbed his wife by the wrists to get the knife out of her hand and put it in the basement;
When asked if he had been assaulted or hit, the husband responded: "she punched me approximately 10 times in the arms/shoulder area". Morrison asked the husband if he ever hit his wife and husband responded he did not and never had hit her.
Officer Morrison asked husband if he was injured and asked to look at his arm…husband responded he did not think he was injured and had been wearing a jacket… officer Morrison asked him to remove his jacket and while doing so, explained that police domestic violence policy is that if police have grounds for a charge they would move forward even if the victim did not wish such actions… whereupon the husband immediately said he was not going to cooperate, he was not going to provide a statement and he pulled his sleeve down and would not allow police to view his arm.
7In cross examination and in submissions, plaintiff's counsel pressed the point that officer Morrison was speaking with the husband for less than 5 minutes, did not question the plaintiff at all following his conversation with the husband, did not question the other officer to see what he may have learned from his discussion with the plaintiff, was aware the plaintiff may be having mental health issues and that a physical interaction apparently occurred between the plaintiff and her husband as he took the knife away from her. He asserted officer Morrison arrived at his RPG decision to charge the plaintiff, in a rushed fashion in the circumstances.
8However, in fairness to officer Morrison it can be noted he appropriately and promptly took the plaintiff to the emergency department of a nearby hospital and stayed with her while she was assessed, found to be in good health and discharged. He then brought her to the police station, where the circumstances of the incident were recorded in a statement, following the appropriate cautions. The plaintiff declined to contact a lawyer although told that she could do so. The plaintiff was then formally charged with assault and released on a Promise to Appear. She had been in police custody for about 3 hours, not including the hour and a half she was in the hospital emergency room to be assessed. The evidence discloses the officer treated the plaintiff with respect and gave her the appropriate warnings. As noted previously, 20 days later, the assault charge was withdrawn with the agreement of the Crown when the plaintiff, with legal advice and in the company of her lawyer, attended Provincial Court and voluntarily entered into a Peace Bond.
9The Supreme Court has determined that reasonable and probable grounds, as a matter of standard of proof, is higher than a mere suspicion, but less than the civil standard of a balance of probabilities, see Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100. This court finds this standard was met by officer Morrison on the facts of this case, as summarized above.
10In Yadeta v. The Regional Municipality of Peel Police Services Board, 2023 ONSC 6387 (SCJ), aff'd, 2024 ONCA 341, the plaintiff alleged false arrest and negligent investigation against the Peel Regional Police. The Court of Appeal upheld the striking of these claims under Rule 21 on the basis that the appellant admitted in his pleading that the complainant had identified him as her pimp, such allegation having provided the police with reasonable and probable grounds to arrest him for that offence.
11The plaintiff argues that officer Morrison's failure to interview her to ascertain her version of events before arresting her, means he necessarily lacked RPG for the arrest. However, in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, the Court of Appeal held (at para. 52) an officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest or to obtain the suspects version of events or otherwise established there is no valid defence before being able to form reasonable and probable grounds.
12In Barclay, the Court of Appeal also elaborated on the standard of care expected of a police officer, as follows:
[49] The Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251, defined the concept of reasonable and probable grounds as requiring an arresting officer to subjectively have reasonable and probable grounds on which to base the arrest. It must also be justifiable from an objective point of view but need not demonstrate anything more. See also: R. v. Feeney, [1997] 2 S.C.R. 13, at para. 24. In other words"a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds" to make an arrest: R. v. Storrey, at p. 251.
[50] The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251; [Wong v. Toronto Police Services Board, 2009), 2009 CarswellOnt 7412 (S.C.), at para. 54; Gioris v. Toronto Police Services Board, 2012 ONSC 6396, 2012 CarswellOnt 15071, at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:
"The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused".
[51] The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.
13To a similar effect is the Court of Appeal decision in Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497 in which a trial judge was found to have ignored the principle that police are not required to obtain the suspect's version of events or otherwise establish there is no valid defence. The trial judge held the arresting officer was required to consider not only the information he had, but also "the information that he did not have but which he could have had upon simple inquiry". To support this proposition, the trial judge cited the decision of Doherty J.A. in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at para. 21:
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.
14The Court of Appeal clarified that the words "all information available" refer to the information the officer had in his possession – not additional information the officer "could have had upon simple inquiry".
15The court in Tremblay went on to observe: In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 Karakatsanis J. approved of Doherty J.A.'s statement in Golub, stating, at paras. 33 and 34, that "[e]xculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors" but added that "the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations."
Proceedings Did Not Terminate in the Plaintiff's Favour
16Irrespective of whether an arresting officer had RPG to make an arrest, there is well established case law which requires that a plaintiff in a malicious prosecution or false arrest claim, or in a negligent investigation claim, must establish that the underlying criminal proceeding has been decided in their favour. In the present case this court finds the plaintiff has failed to prove the assault charge against her was decided in her favour, and this is fatal to both her false arrest and her negligent investigation claims.
17The case law establishes that a Peace Bond disposition of a criminal charge, where the Crown agrees to accept a Peace Bond from an accused person in return for withdrawing the charge, does not constitute a termination of the charge in the plaintiff/accused's favour. Moreover, the Peace Bond precludes a finding that the proceedings were instituted without reasonable cause, see Beardsley v. Ontario at paras. 5 and 25. In the present case the plaintiff entered into a common law Peace Bond, the substance of which was, in consideration for the Crown agreeing to withdraw the information (the assault charge) against her, she undertook to keep the peace and be of good behaviour for a period of one year and as the judge reminded her (as recorded in the transcript of the hearing), the good behaviour requirement was with regard to Mr. Lloyd. She was also required not to possess weapons.
18The plaintiff now proposes to reverse course in this proceeding to assert she was not lawfully arrested in the first place. The plaintiff was represented by a lawyer when she provided the Peace Bond, who assured the court there was a basis for entering into the bond and further that his client was agreeable to proceeding in that fashion. There is no suggestion the Crown was acting improperly in agreeing to dispose of the assault charge by way of a Peace Bond, nor is there any public policy reason to not enforce this very reasonable disposition of this charge.
19In Romanic v. Michael Johnson, 2012 ONSC 3449, aff'd 2013 ONCA 23, the plaintiff sued certain police officers who had been involved in an investigation of his actions, for the torts of malicious prosecution and negligent investigation after the Crown had withdrawn certain criminal charges against him, as part of a negotiated agreement whereby he would resign his employment. Campbell J. granted summary judgement to the defendants, explaining: "After hearing argument on one key aspect of the summary judgment motion, namely, whether the criminal proceedings had been terminated in favour of the plaintiff (an element of both of the torts alleged by the plaintiff), I advised the parties that I would grant the defendant's motion". He continued:
[9] The judicial authorities establish that the tort of negligent investigation is very similar to the tort of malicious prosecution, with some overlapping components. More particularly, the jurisprudence dictates that, in order to establish the tort of negligent investigation (at least in cases where the investigation has resulted in criminal charges) the plaintiff must establish four necessary elements, namely: (a) the proceedings must have been initiated by the defendant; (b) the proceedings must have been terminated in favour of the plaintiff; (c) there must have been an absence of reasonable and probable grounds to commence the proceedings against the plaintiff; and (d) in conducting the investigation the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances. (emphasis added and citations omitted)
20Campbell J. went on to explain that entering into a Peace Bond wherein the Crown agrees to withdraw the charge, is a recognized category of resolutions of criminal cases that do not constitute "a termination in favour of the plaintiff", citing Beardsley v. Ontario Provincial Police (2000), 50 O.R. (3d) 491 (S.C.J.); Affirmed: , 57 O.R. (3d) 1 (C.A.) and Kahn v. Peel (Regional Municipality) Police Services Board, [2008] O.J. No. 3494 (S.C.J.). Justice Campbell explained the policy behind this requirement:
Justice officers as well as the public should be able to look to compromises as bringing finality to not just criminal charges, but as well civil claims based on criminal charges.
In my view, the justice system is entitled to consider that an agreement by an accused to a Peace Bond is a recognition by the accused to being at some risk should the prosecution go forward. The purpose of such compromise would be undermined if after the fact an accused could allege that the Police knew or ought to have known that that the prosecution must fail.
21In a recent case, Yadeta, discussed previously, a plaintiff sued police investigators for misfeasance and bad faith arising out of criminal charges against him of sex trafficking a minor and child pornography. The charges were withdrawn mid trial when the complainant was unable to complete her testimony. At this point the accused, with the benefit of counsel, entered into a peace bond, certain pornography materials related to the prosecution were forfeited and the Crown withdrew the charges. The court struck the plaintiff's civil claim, noting (at para. 59)"there is another fatal error in establishing this tort – failing to establish that the proceeding was resolved in Mr. Yadeta's favour. There was no acquittal. There was a mutually agreed upon resolution of the charges".
22On appeal in Yadeta, the Ontario Court of Appeal stated at para. [9]"Further, as noted by the motion judge, the criminal proceedings were not resolved in the appellant's favour as required for a claim of malicious prosecution; rather, the appellant voluntarily entered into a peace bond and forfeited the nude images of the complainant in exchange for the withdrawal of the charges against him".
23In the present case the plaintiff's testimony was that she voluntarily entered into the Peace Bond on the advice of her lawyer who, to her recollection, did not explain to her that the Peace Bond could prevent her from pursuing a civil action against the police. She also said she was anxious to spend Christmas with her son, which she felt could not occur with the assault charge outstanding. These considerations do not support any public policy reason why the Peace Bond disposition of this assault charge, agreed to between the Crown and the plaintiff (through her lawyer) and sanctioned by the court, should not be governed by the well established rule that entering into a Peace Bond precludes an accused person/plaintiff from arguing the criminal proceeding was not lawfully instituted nor that it was terminated in her favour.
Negligent Investigation
24The Supreme Court has established the parameters of the standard of care expected of police officers in formulating RPG, in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 , [2007] 3 SCR 129 in which McLachlin CJC stated at para. 73:
I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere "errors in judgment" which any reasonable professional might have made and therefore, which do not breach the standard of care.
25The case law holds that the plaintiff must establish four necessary elements to succeed in her negligent investigation claim:
a. The defendant initiated the assault proceedings against the plaintiff;
b. The assault proceedings terminated in favour of the plaintiff;
c. There was an absence of reasonable and probable grounds (RPG) to commence the assault proceedings against the plaintiff; and
d. In conducting the investigation the defendant owed a duty of care to the plaintiff, and did not meet the objective standard of a reasonable police officer in similar circumstances.
26These elements are conjunctive. Accordingly, this court's finding that the arresting officer had RPG to arrest the plaintiff and that the Peace Bond subsequently entered into by the plaintiff on the advice of her lawyer, precluded any finding that the proceedings were terminated in her favour, means this action for false arrest and negligent investigation must be dismissed.
27I would add that as with any tort based action, the plaintiff must prove on the balance of probabilities that the defendant's breach of their duty of care was the proximate cause of the plaintiff's damages. In the present case the plaintiff has a causation problem in that even if officer Morrison had not arrested her at her home, but instead waited until she had been assessed at a hospital and interviewed and provided a statement at the police station, it would have been clear at a later point that she did punch or pummel her husband with her fists, as he had initially alleged, with the result that the officer would have had RPG and would have arrested her, albeit at a slightly later point in time.
28It is significant from a causation perspective that the allegation of punching her husband, as first related by her husband to the officer, was admitted by the plaintiff to be true. In fact, the plaintiff re-iterated on several occasions that indeed she did punch or pummel her husband, striking him in the shoulder and that she did have a knife at one point, but intended no harm…she was just upset about a series of marital issues and she was exhausted and distressed. She said essentially this to officer Morrison as he drove her to the hospital, saying "she was pounding on Mr. Lloyd's chest to get his attention", again to the same effect at the police station and in her very candid testimony at this trial where she demonstrated to the court her clenched two fist pummelling motion as she struck Mr. Lloyd. I find the evidence supports officer Morrison's belief that he did have reasonable and probable grounds (RPG) to arrest the plaintiff. I find this to be so, notwithstanding that some police officers, acting reasonably in similar circumstances, might have chosen to pursue further inquiries prior to arresting the plaintiff for assault.
29The court was assisted by thoughtful experts reports furnished by the plaintiff and the defendant. The Plaintiff's expert, Kim Gross, criticizes Constable Morrison for arresting the plaintiff immediately after interviewing her husband and failing to extend his investigation until after the plaintiff was transported to hospital for a mental evaluation. She also criticizes Constable Morrison for arresting the plaintiff while she was experiencing a mental health episode, referring to his action as a "hasty decision". Ms. Gross cites the "Emotionally Disturbed/Mentally Ill" OPP policy for the proposition that persons that are emotionally disturbed or mentally ill "must be treated with compassion and respect". However, at another place in the policy the officer is required to consider laying criminal charges, especially for a violent offence. Ms. Gross conceded that officer Morrison may have had RPG to arrest the plaintiff in this case.
30I am of the opinion that the several OPP policies before the court and discussed by the respective experts were police guidelines or statement of best practices, but they do not displace the standard of care and RPG jurisprudence set out in the appellate decisions referred to above.
31The defendant's submission was that once Constable Morrison had RPG to believe that the Plaintiff had punched her husband, the OPP policy may have required him to lay an assault charge against the plaintiff, even though the plaintiff was visibly upset. Officer Morrison said he interpreted the policy in that fashion. The policy in my view is vague as to whether it was setting out a requirement to arrest versus a guideline with discretion. I do not consider it necessary to attempt to resolve that question in the present case.
Disposition
32For the reasons set out above, I find that the defendant has established there were reasonable and probable grounds for the plaintiff's arrest, the Peace Bond precludes the tort claims being advanced by the plaintiff and the plaintiff has failed to prove negligent investigation on the facts of this case.
33If the defendant wishes to seek costs (under Rule 76.12) it must serve a concise written submission within 30 days of the release of these reasons and the plaintiff is to respond within 30 days of receiving the defendant's submission.
Justice Charles T. Hackland
Released: October 16, 2025