Police Newsletter

September 2016


Toronto and York Police Successfully Defend Negligent Investigation and Assault Claim

In Du Carmur v Cole, the Ontario Superior Court dismissed a claim that police conducted a negligent investigation of him, culminating in a violent arrest that ultimately led to stayed charges. There was no scope for concluding that the police conduct in question was negligent or otherwise unlawful.

Christopher Du Carmur, a Toronto resident, had a number of criminal convictions, and was the subject of criminal charges that were eventually stayed in 2001. Mr. Du Carmur then set about leading a crime-free life, starting a number of businesses.

On 30 July 2008, as he was relaxing with a glass of wine on his first night after moving into a new apartment, Mr. Du Carmur was confronted by an intruder dressed in military clothing, who ordered him to lie down and, Mr. Du Carmur alleged, kneed him in the head and stomped on his leg. Mr. Du Carmur was then arrested and taken to the police station, where he learned that he was being charged with a number of drug- and gang-related offences on the basis of wiretap evidence. He then spent over a year in prison before all the charges against him were stayed.

Mr. Du Carmur brought an action against numerous defendants including the Toronto and York Regional Police Services Boards, alleging, amongst other things, that the police were negligent in their conduct of the investigation, that they assaulted him at the time of his arrest and that they permitted valuable items to be removed from his new home following his arrest.

In his judgment, Justice Akhtar reviewed a number of legal principles. As the Supreme Court of Canada held in Hill v Hamilton Wentworth (Regional Municipality) Police Services Board, the police owe a duty of care to a suspect under investigation. However, a suspect is not entitled to a perfect investigation, and police errors are to be expected. Rather, the suspect is entitled to police actions that fall within the “range of reasonableness”.

Further, on the facts of this case, in order to succeed, Mr. Du Carmur would have to establish that the wiretap authorization permitting the collection of the evidence against him was not validly authorized. This entailed applying the test set out in R v Garofoli, under which the reviewing court must consider the record that was before the judge authorizing the wiretap, and decide whether that record discloses sufficient reasonably believable evidence to permit the judge to issue the authorization. When scrutinizing the information to obtain (ITO) underpinning the authorization, any errors in the ITO are disregarded, and the court must decide whether the officer swearing the ITO had a reasonable belief in the existence of sufficient grounds to obtain the authorization.

On these facts, there was abundant evidence before the authorizing judge to suggest that the persons listed in the ITO were involved in criminal offences. There was no evidence that the police misled the authorizing judge, or that they were negligent.

Regarding the assault allegations, Justice Akhtar found Mr. Du Carmur’s credibility to be wanting in several regards. By contast, the police officers who arrested Mr. Du Carmur were more believable. Those officers argued that the only force they used in the arrest was reasonable force in order to subdue Mr. Du Carmur. The assault and battery claim was therefore dismissed.
Mr. Du Carmur’s claim that the police permitted valuables to be stolen from his apartment also failed. Even if the police were under an ongoing duty to protect Mr. Du Carmur’s belongings, they discharged that duty by arranging with the building’s management to secure his apartment after they completed their search.

Accordingly, Mr. Du Carmur’s claim was dismissed in its entirety.

This case demonstrates that an investigation that leads to an acquittal or stayed charges is not necessarily a negligent one. The plaintiff will need to prove that the police failed to act reasonably, and mere errors on the part of the investigating officers will be insufficient to attract civil liability. The judge’s approval of the officers’ decision to arrange for Mr. Du Carmur’s apartment to be secured after they searched it also provides a useful suggestion as to how officers ought to conduct themselves when left in charge of the home of a suspect in custody.

Arbitrator Holds That Officer Was Entitled to Benefit of Time in Lieu Despite Working Shortened Hours

In Stirling-Rawdon Police Association v Township of Stirling-Rawdon Police Services Board (Heasman Grievance), an arbitrator interpreted a collective agreement clause to provide time off in lieu to an officer even though, during the time period in question, he was working eight-hour, rather than 12-hour, shifts.

Constable Heasman was away from his duties with the Stirling-Rawdon Police Service for several weeks in the summer of 2015. When he returned to work on modified duties on 4 August 2015, he was placed on eight-hour shifts, even though the standard length of a shift under the collective agreement was 12 hours.

Article 5.4 of the collective agreement provided as follows:

6 Week Plan

It has been the agreed upon common practice since the year 2000 that the Chief of Police has granted each officer two days (Monday and Tuesday – or Wednesday and Thursday at the Chief’s discretion) of every 6th week off. As a result, each officer agrees not to take any cash out of their accrued time or to charge the service any overtime costs associated with yearly use of force training. This is in lieu of the 104 hours [of] overtime worked for 12 hour shifts … yearly.

Cst. Heasman completed his annual use of force training in November 2015, and subsequently requested that 72 hours, an amount equal to two days’ leave for every six weeks worked, be credited to his time in lieu bank. When the Chief of Police declined Cst. Heasman’s request, the Police Association brought a grievance.

The Board conceded that, in the past, the Service’s practice was to provide members with two days in lieu every six weeks, even when they were off sick during that period. However, it argued that Cst. Heasman’s position could be distinguished from previous cases on the basis that he was not off sick, but was working reduced hours. Therefore, Cst. Heasman should not have the benefit of Article 5.4, which was aimed at compensating those who worked more than 40 hours per week.

Arbitrator Barry Fisher noted that Article 5.4 was added to the collective agreement in 2009 as a compromise on a number of matters including: the overtime worked over the course of a calendar year where an officer worked 12-hour shifts; compensation for use of force training, which took place during members’ days off; and the Board’s desire to compensate members for overtime through time off in lieu rather than in monetary compensation.

In this case, the wording of Article 5.4 did not address what happened where a member completes use of force training, but does not work 12-hour shifts. However, Arbitrator Fisher had regard to past practice, which was that an officer receives the two-day time credit as long as he or she completes annual use of force training. Having completed that training, Cst. Heasman was entitled to the time off in lieu credit as claimed.

This award is noteworthy in that the Arbitrator admitted that both the Board and the Association raised sensible arguments as to how Article 5.4 ought to be construed. In the event, in light of the practice of linking the two-day benefit to use of force training, it was the Association’s proposed interpretation was most appropriate. More broadly, disputes of this nature may be avoided by clarifying the wording in collective agreement provisions to reflect parties’ intentions as to the circumstances in which benefits such as time off in lieu are triggered.

Montreal Police Officer Cleared of Misconduct After Protester Injured

In Commissaire à la déontologie policière c Gosselin, the Quebec Police Ethics Committee held that a Montreal police officer did not commit misconduct when he inadvertently knocked over a member of the public during an anti-austerity protest in Montreal.

Eric Gosselin was a police officer with the Montreal Police Service. On the afternoon of 3 April 2014, anti-austerity protest took place in Montreal. As part of the demonstration, protesters marched east along Sherbrooke Street. The protest organizers did not inform the police of their anticipated route, with the result that the protest was declared to be illegal. Nevertheless, the police announced that they would tolerate the continuation of the march as long as there was no aggression against the police, and no other crimes were committed.

The march proceeded peacefully until an altercation arose at a downtown street corner, where about 400 protesters gathered and became hostile. The commanding officer, Commander Chartrand, ordered officers to form a line across Sherbrooke Street and advance gradually while knocking their batons against their shields.

Officer Gosselin was part of the advancing line of officers. He noticed a man on a bicycle standing in the middle of Sherbrooke Street, holding a mobile telephone. Officer Gosselin motioned with his shield for the cyclist to move out of the way.

Commander Chartrand, who was behind Officer Gosselin, saw the encounter between Officer Gosselin and the cyclist and thought nothing of it, until a moment later when the cyclist fell to the ground.
The cyclist, Robert Fransham, sustained injuries to his left leg, and to his head. His glasses were also broken. He filed a complaint with the Police Ethics Commissioner, who brought disciplinary proceedings alleging that Officer Gosselin (1) committed abuse of authority and (2) acted in a manner that did not preserve the confidence and consideration that his duties require.

Before the Quebec Ethics Committee, the officer relied on the evidence of an expert in biomechanics, who reviewed video and other evidence and concluded that Mr. Fransham lost his balance as a result of a combination of voluntary movements on his own part, and light and fleeting contact with Officer Gosselin’s shield.

Mr. Fransham, who was 71 years old at the time of the accident, died of unrelated causes before the hearing.

In light of all the evidence, the Committee dismissed both counts of misconduct. Officer Gosselin did not see Mr. Fransham fall over and was not aware of the incident until after he returned to the station. Regarding the abuse of authority complaint, the Committee noted that the allegation was based on excessive use of force. That allegation presumed that a certain level of force was acceptable in the circumstances. The expert evidence confirmed that the contact with Officer Gosselin was light, and not violent or immoderate.

Further, the Committee noted that Mr. Fransham acted recklessly in remaining in the middle of Sherbrooke Street in the face of an advancing police line. The way he was standing also meant that he was vulnerable to a fall.

In the circumstances, there was no scope for concluding that Officer Gosselin used excessive force. This count of misconduct was also dismissed.

One point of interest in this decision is the Committee’s remark that because Officer Gosselin was charged with excessive use of force, it was not open to the Commissioner to argue that the officer should not have used any force at all and should simply have walked around Mr. Fransham. It is possible that the outcome in this case could have been different had the allegation against Officer Gosselin been framed differently. 

Accused Had No Reasonable Expectation of Privacy over Sent Text Messages, Ontario Court of Appeal Rules

In R v Marakah, the Ontario Court of Appeal upheld a gun trafficking conviction based primarily on text messages sent by the accused that were discovered on a mobile telephone belonging to a co-accused. The Court held that the senders of text messages did not have a reasonable expectation that those messages would remain private.

In 2012, the Toronto Police Service launched an investigation into individuals who legally purchased an unusual number of firearms during a short time period. This investigation led officers to Andrew Winchester, whose mobile telephone contained a number of text messages from Nour Marakah concerning gun trafficking.

In his subsequent trial on gun trafficking offences, Mr. Marakah applied to challenge the search of Mr. Winchester’s phone on the basis that it breached Mr. Marakah’s rights under section 8 of the Canadian Charter of Rights and Freedoms.

The application judge dismissed the application, holding that once a text message reaches its intended recipient, it is no longer under the control of the sender, who therefore has no reasonable expectation of privacy over that message. After Mr. Marakah was convicted and sentenced to six and a half years’ imprisonment, he appealed to the Ontario Court of Appeal.

In a 2-1 decision, the Court of Appeal dismissed Mr. Marakah’s appeal. Section 8 protects against unreasonable search and seizure, and therefore only applies to situations in which there is a reasonable expectation of privacy. The majority agreed with the application judge that Mr. Marakah had no reasonable expectation of privacy over the messages because he had no ownership or control over Mr. Winchester’s phone; Mr. Marakah implicitly recognized this reality, as he asked Mr. Winchester to delete the messages sent between them.

The Court accepted that the sender of a text message has a reasonable expectation of privacy in the contents of that message after it has been sent, but before it reaches its intended destination. As a result, the protection of section 8 extends to text messages stored in a service provider's database. However, because messages are not protected once received, section 8 offered no protection to Mr. Marakah on the facts of this case. His conviction was upheld.

Mr. Marakah has appealed the Court of Appeal’s decision to the Supreme Court of Canada. This case will be one to watch, as the Ontario Court of Appeal’s decision runs contrary to the development of case law elsewhere, notably in British Columbia, where the Court of Appeal held, in R v Pelucco, that the sender of a text message has a reasonable expectation that the message will remain private once received. Whichever way the Supreme Court resolves this conflict in the jurisprudence, its decision is likely to have significant implications for privacy law nationally.

This newsletter is for general discussion purposes and does not constitute legal advice or an opinion. For legal advice regarding your particular circumstances, please contact us at 416 546 2103.

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