A “very active crack cocaine trafficker” is acquitted of a crime because the wiretap evidence against him is excluded in his criminal trial. What happens when he brings a civil action against the police officers who arrested and charged him, claiming that his rights under the Canadian Charter of Rights and Freedoms were violated? Can the wiretap evidence be used against him? And can he claim damages under the Charter, despite the excluded evidence indicating involvement in the crimes for which he was arrested?In a recent decision, Obiorah v. The Ottawa Police Services Board, the Ontario Superior Court of Justice said no to both.

Background

The plaintiff was arrested and charged with a number of drug and weapon related offences. Wiretap communications intercepted by the police led to his arrest, but these were ultimately excluded at the plaintiff’s criminal trial. The criminal court was critical of the information provided by the lead investigator as part of the applications to intercept private communications and concluded that the resultant breach of the plaintiff’s Section 8 Charter right had not been committed in good faith. The wiretap evidence was therefore excluded resulting in the charges against the plaintiff being dismissed.

The plaintiff then began a civil action against the two police investigators who investigated and charged him, claiming damages for negligent investigation, malicious prosecution and breach of his Section 7 and 8 Charter rights.

Use of Excluded Wiretap Evidence in Civil Proceedings

The court dismissed the plaintiff’s claims of negligent investigation, malicious prosecution and resultant Section 7 Charter breaches. This is not surprising. The law is clear that a central element of both negligent investigation and malicious prosecution is the absence of reasonable and probable grounds to arrest and charge, based on the circumstances apparent to the officer at the time of the arrest.

In this case, there was significant evidence against the plaintiff collected as part of the criminal investigation — some of it even admitted to by the plaintiff — that supported the existence of reasonable and probable grounds to arrest and charge him for drug trafficking and robbery. The challenge the police faced in relying on this evidence in the civil action, however, was that this evidence emanated either directly or indirectly from wiretap communications which the court had held in the plaintiff’s criminal trial to have been obtained contrary to the plaintiff’s Charter rights.

The plaintiff argued that the criminal judge had already ruled on the legality of and manner in which the police had procured a warrant to intercept his private communications. This evidence had been c excluded and that excluded evidence could not be relied upon to support reasonable and probable grounds for the arrest and charging of the plaintiff.

The court dismissed this argument, finding that the police were permitted to rely on the evidence to show the existence of reasonable and probable grounds. It did not matter for the civil action that the evidence was ultimately excluded in the criminal trial; it still existedat the time of the civil proceedings, was legitimately relied upon at the time the plaintiff was arrested, and was gathered pursuant to validly-issued wiretap authorizations.

The court’s decision makes it clear that evidence excluded pursuant to Section 24(2) of the Charter as part of an accused’s criminal proceedings does not “disappear” for all purposes. Rather, if the accused wishes to initiate civil proceedings against the police for tortious conduct during the investigation or prosecution, they should expect that the evidence of their criminal activity may resurface and be relied upon in the civil proceedings.

Appropriateness of Charter Damages

While the exclusion of evidence at the plaintiff’s criminal trial did not apply to the civil claim, the criminal court’s conclusion that the plaintiff’s Section 8 Charter right was breached was binding on the civil court. However, it rejected the plaintiff’s claim for Charter damages in the civil trial. The civil court held that exclusion of evidence and a corresponding dismissal of the criminal charges was already a substantial remedy for the Charter breach. A further damages award for the plaintiff in the civil trial would be “inappropriate or unjust” in circumstances where “he likely committed the offences for which he was charged.” This is a noteworthy development in law of Charter damages.

Authors

Taha Hassan 
THassan@blg.com
416.367.6200

Kevin A. McGivney 
KMcGivney@blg.com
416.367.6118

Expertise

Insurance and Tort Liability