On August 9, 2016, Reasons for Judgment were released in Du Carmur v. Cole, 2016 ONSC 4930.
The plaintiff's claim related to drug charges laid against him following two lengthy police investigations. The plaintiff's claim specifically attacked the validity of two wiretap authorizations obtained by the defendant police services, alleging that police had targeted him and deliberately lied in order to obtain the authorizations.
The Court had to consider how wiretap authorizations can be challenged in the civil, not criminal, context. All parties agreed that the authorizations ought to be reviewed using the test set out in R. v. Garofoli, [1990] 2 SCR 1421, the leading Supreme Court of Canada decision with respect to the validity of wiretap authorizations. The Court held that a finding upholding the authorization would defeat the plaintiff's claim for damages. However, in the event that the authorizations ought not to have been issued, the Court held that this would not, "on its own, result in a successful claim of negligence." Rather, the Court would then need to:
consider the individual impugned acts to decide if they constitute negligence within the meaning of the [Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129] test. As the court in Hill notes, a suspect is not entitled to a perfect investigation and it is to be expected that the police will make errors as part of the evidence gathering process. It is only if the plaintiff proves that those errors fall outside the scope of reasonableness as identified in Hill that he succeeds.
The Court reviewed the common law principles arising from the Garofoli decision with respect to the review of wiretap authorizations. The Court noted as follows:
- The reviewing judge does not conduct a de novo hearing of the validity of the authorization but considers the record that was before the authorizing judge and decides whether the record, amplified on review, discloses sufficient evidence on the basis of which the judge could have issued the authorization;
- The starting point in reviewing an authorization is that it is presumptively valid and the onus lies on the plaintiff to establish invalidity;
- It is only if the reviewing judge concludes that there was no basis upon which the authorizing judge could be satisfied that the conditions for granting the authorizations existed, that the authorization would be held to be invalid;
- A judge is not deciding whether allegations outlined in the [Information to Obtain or “ITO”] are actually true but whether the affiant had a "a reasonable belief in the existence of the requisite statutory grounds"; and
- The existence of errors within the ITO is not sufficient, of itself, to constitute an invalid authorization or breach of the Charter — any errors found within the ITO are excised. The reviewing judge then ascertains whether, after the excisions, sufficient material remains to justify the issue of the authorization.
Applying the above principles, the Court found that both of the wiretaps were validly authorized. All of the plaintiff's causes of action relating to the wiretaps were accordingly dismissed. This decision is one of the first cases addressing allegations of investigatory negligence in the context of wiretaps.
The Court went on to consider the balance of the plaintiff's allegations which largely related to claims of assault and battery for injuries allegedly sustained during the course of his arrest. The Court noted that in circumstances where officers have reasonable grounds to believe a firearm is involved, they are faced with heightened sense of danger and must think and act quickly. Accordingly, when "reviewing an arrest, ex post facto, a court cannot expect an officer to have precisely calculated the precise amount of force to be used in subduing a person."
The Court found the testimony of the defendant officers more credible than that of the plaintiff. Accordingly, the plaintiff's claims for assault and battery were dismissed.
