Court Of Appeal Overturns Trial Decision On Police Negligence Investigation, False Arrest, False Imprisonment And Charter Breach

In Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, the Ontario Court of Appeal overturned the trial decision of Aitkin J. finding the Ottawa Police Service Board ("OPSB") liable for negligent investigation, false arrest, unlawful detention, unlawful imprisonment and breach of Charter rights.

Background

The plaintiff and his wife were involved in a prolonged dispute with their neighbours. The OPSB was called and consequently, the investigating officer, Sergeant Aylen ("Sgt. Aylen"), charged the plaintiff with intimidation and mischief. During the course of the investigation, Sgt. Aylen also obtained a public safety firearms warrant and searched the plaintiffs' home, seizing firearms and ammunition.

At the criminal trial, the plaintiff was convicted of the mischief charge and acquitted on the intimidation charge.

The plaintiff and his wife sued the OPSB, Sgt. Aylen and other members of the OPSB. The trial judge found Sgt. Aylen liable for negligent investigation, false arrest, unlawful detention and various breaches of the Charter. The plaintiffs were awarded $50,000 in damages. The OPSB appealed the decision.

Court of Appeal Analysis

The Court of Appeal held that while the trial judge had correctly identified the applicable legal principles, she erred by not applying them to the facts and evidence before her. The Court reaffirmed the following principles:

The trial judge should not focus on the steps the judge believes should have taken, but rather on whether the information available to police at the time amounted to "reasonable and probable grounds to arrest"; Significant weight should be given to the fact that the investigating officer had consulted with his supervisor before proceeding to arrest and lay charges this is significant, if not determinative, of the issue of reasonable conduct; A trial judge can err by defining his or her own standard of care without any evidentiary basis and, more specifically, in the absence of expert evidence. Using different approaches taken by other officers to criticize the approach used by the defendant officer is "inconsistent with the established jurisprudence"; The trial judge should not substitute his or her own view of whether the public interest could be satisfied without an arrest in absence of evidence that the arresting officer believed, on reasonable grounds, that the public interest could be so satisfied; With respect to the propriety of obtaining the public safety firearms...