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Represent Yourself in Court

Classic Precedents:  False Arrest, False Imprisonment

The Charter and Probable Cause

Canadian Charter of Rights and Freedoms

Before making an arrest in Canada, a police officer must first establish probable cause. The Charter protects Life, Liberty, and the Security of the Person in these words:

  • Charter s. 8 - Everyone has the right to be secure against unreasonable search or seizure.
  • Charter s. 9 - Everyone has the right not to be arbitrarily detained or imprisoned.

Despite these words of the Charter, many cases of false arrest and false imprisonment occur in Canada, as attested by the case-law on the subject.

Elmardy v. Toronto Police Services Board (2015) ONSC

Waterfield Test:  Context of Police Powers

Elmardy walked home from his mosque one January evening. The night was cold, 10°C. Police Constable Pak stopped Elmardy, punched his face, then handcuffed him to an icy wooden deck for half an hour without legal basis. Elmardy sued and won. The Judge ruled: Cst. Pak committed battery on Elmardy, and violated his constitutional right to be secure from arbitrary detention and secure from unreasonable search and seizure.

Police are entitled to speak to citizens with whom they interact. Similarly, citizens are entitled to decline to speak to police. Mere refusal cannot form a reasonable basis to suspect criminality. That would vitiate the right to remain silent. Nor can the manner of refusal, even if given particular clarity or flavor, be taken – without anything more – as a basis to suspect criminality. There are too many innocent reasons why a person might be taciturn or rude.

Police must have reasonable suspicion that the citizen is implicated in a criminal activity under investigation. A hunch is not enough. The lawfulness of a detention must balance the police power to investigate and the citizen's liberty interest. There must be a clear nexus between the individual to be detained and a recent or on-going criminal offence.

The common law says: Investigative detention must be brief, perhaps a few seconds, to allow for a pat-down if indicated to protect officer safety. An investigative detention held for longer than necessary for its limited purpose becomes a de facto arrest.

Under the Waterfield test, the use of police powers must be justified by context. Down the street strolled Elmardy, hands in pockets. Pak detained him, saying the unseen hands threatened officer safety. While officers may wish to see the hands of someone they speak to, that is by no means universal. Examples: No safety concern attaches to a manager pacing with his hands behind his back in an office; nor to a Judge whose hands fall below the lip of his dais. Nor is it a crime for you to warm ungloved hands in your pockets on a frosty winter eve, as Elmardy did.

The court awarded Elmardy general damages, punitive damages, and declarations that his Charter rights were violated. Malfeasance from defendants Pak, Poole, and their lawyer continued during the trial, and raised the punitive damage award. Summary of the proceedings:

  • The Judge held: It is very much in society's interest that litigants not be dissuaded from bringing claims for false arrest that have merit.
  • This case was made in cross-examination, to untangle testimony lacking in candor. The Judge approved Elmardy's choice of the Queen's Bench Normal Procedure, which permits full discovery and the full rigor of a trial. The Simplified Procedure, created to save resources, would limit discovery to 2 hours, and cross-examination to 50 minutes (in Ontario).
  • Police must follow the rules like any other litigant. Constables Pak and Poole tried unsuccessfully to mesh their stories. Their attorneys tried to subvert the standard witness exclusion order, to improve the chances of their witnesses agreeing. A police videotape vanished. These issues went to punitive damages.

Andre Gravelle v. Ontario (2012) ONSC 5149

Prosecution:  Initiation Requirement

When a person provides false information to the police – information which specifically causes the police to lay criminal charges – can he or she be found to have initiated the prosecution? The court said yes, and defined three different ways in which a person may be characterized as the initiator of a prosecution:

  • If the person delivers information to police authorities, which virtually compels an officer to lay an information.
  • Alternatively, the person may deliberately deceive police by supplying false information, without which charges would not have been laid.
  • Finally, the person may withhold exculpatory information which would have stayed the hand of the police if they had been aware of it.

Dagenais v Dagenais (2007) SKCA 117

Falsely Inform the Police

Courts affirm the proposition that any citizen who falsely and maliciously informs the police that someone has committed a crime may be taken to have procured the charge or initiated the prosecution – even though it was the police who laid the charge. The tort of false arrest or malicious prosecution will succeed, even if the citizen did not act alone and single-handed to initiate the prosecution, to the exclusion of the police.

R. v. Boulanger (2006) SCC 32

When is a Report Actionable?

After his daughter's car accident, Boulanger, for his own personal benefit, instructed Constable Stephens to prepare a supplementary report of the accident. Boulanger, a public official, was convicted of breach of trust. His appeals reached the Supreme Court where Boulanger argued that he only wanted a more complete report of the accident. The SCC put his action down to an error in judgement and reversed the conviction.

The court carefully considered the what if’s of the case, and said: If Boulanger had asked Cst. Stephens to put a particular content into his report, that would amount to a betrayal of the public trust. There would equal liability if a person put false content into their own report, then gave the report to police. A report is actionable if:

  • The report does not accord with the preponderance of evidence;
  • The report is skewed in one direction or another;
  • The report conceals the truth, or conceals omissions in the record;
  • Information is altered, especially if there is pressure to falsify;
  • There is intent to mislead (such as misleading an insurance company);
  • The motivation is personal benefit, instead performance of a duty in disinterested fashion.

Martin v. Watson (1995) House of Lords, UK

False Arrest:  Malice Optional, Initiation Required

In law malicious prosecution, and initiation of a prosecution, are separate watertight compartments. Both hinge on false information, but malicious prosecution has a special checklist called the Nelles Test. Most malicious prosecution cases arise when a Police Officer or Prosecutor is driven by an over-zealous nature or a conflict-of-interest.

But the tort of malicious prosecution can also be committed by an outside party who knowingly and maliciously lays a false complaint with police. The actions taken by the police are insufficient intervention to interfere with that liability. To ground a claim for malicious prosecution a person must satisfy the Nelles Test, comprised of four factors defined by the Supreme Court in Nelles v. Ontario 1989 SCC. The person must prove:

Nelles v. Ontario 1989 SCC 77
1. That the law was set in motion against him on a criminal charge;
2. That the outcome was in his favour;
3. That it was without reasonable and proper cause; and
4. That the prosecution was malicious (knowingly false).

On the other hand, initiation of a prosecution occurs when a party outside the police gives false information against a person, leading to that person's false arrest and false imprisonment. Here, no qualitative assessment is made as to whether the instigator knew he gave false information or deliberately withheld information from the police.

Intent to Prosecute

Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence, and he states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted.

Bounds of Knowledge

Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position in Martin v. Watson, then it becomes virtually impossible for the police officer to exercise any independent judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

When a complainant makes statements to police, of such weight that he in substance has procured the prosecution, there is no way to test the truthfulness of his statements before the prosecution is underway. Accusations unfounded and malicious have a sequel eminently predictable – a false arrest and loss of liberty – and to deny the victim any remedy would constitute a serious denial of justice.

Otto v. J. Grant Wallace (1988) ABQB 3446

Arrest Without Warrant:  Mere Belief Insufficient

Where a citizen directs the police to make an arrest, and the police act on this directive without exercising independent discretion, then that citizen is liable if his information proves erroneous: That citizen may be sued for false imprisonment.

Suppose a private citizen himself arrests a person without warrant, based on mere belief that the person committed an offence. In this scenario, no physical evidence is at hand. If it should be later found that no offence was committed, then the citizen is accountable and can be sued for wrongful arrest or wrongful detention.

Belief is not synonymous with reasonable and probable grounds.  Belief is an opinion, influenced by emotion, biased by personal history. An untrained citizen is not observant in fast-moving situations, nor schooled in the psychology of guilt. Statutes are prudently worded to ensure that a private citizen cannot arrest someone without a warrant, unless he actually sees or catches the culprit in the act of committing an indictable offence.

CCC s. 25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law:

  • (a) as a private person,
  • (b) as a peace officer or public officer,
  • (c) in aid of a peace officer or public officer, or
  • (d) by virtue of his office

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

CCC s. 25(1) does not empower a private citizen to arrest, without warrant, a person who he merely believes has committed an indictable offence. Nor can this citizen direct the police to make such an arrest. The purpose of that statute is not to empower, but to protect. It is a shield not a sword, a distinction critical to understanding its effect. Otherwise it would serve to so scramble the carefully constructed distinctions between the powers of arrest of a private citizen, and those of a police officer, as to obliterate them altogether.

As long as a citizen pursues an authority given him by the law, such as making an arrest without warrant where the person arrested is found committing an indictable offence, then CCC s. 25(1) will justify his actions if he uses reasonable force. But if the citizen steps outside the bounds of that authority, s. 25(1) will not justify his actions. It will shield him only so long as he acts within the authority of the law.

R. v. McKitka (1982) BCCA 425

Public Servant:  No Concealed Self-Interest

In this case the defendant, Mayor McKitka, was tempted to his actions by the prospect of gain – he profited by his own dereliction of duty. To accomplish his purpose it was necessary to conceal the actual transaction. This was misbehavior in public office, which is an indictable offence at common law.

The work of a public servant must be a real service in which no concealed pecuniary self-interest should bias his or her judgment, and in which the substantial truth of every transaction should be made to appear.

Valderhaug v. Libin (1954) ABCA

Withholding Data that Disproves Earlier Report

In a lawsuit for false arrest, the plaintiff need not prove the defendant actually made the arrest. It is sufficient that the defendant simply used his power or influence in urging the police to do so. In this case, police arrested Valderhaug based on information from a store owner named Libin. Short days later, Libin learned his information was false, but failed to inform police. Valderhaug filed a claim for false imprisonment, which the court upheld on these grounds:

The arrest was the direct consequence of what Libin told police, and even more significantly, of what he withheld from police. Libin not only set the criminal law in motion, he directly caused the arrest.

It was not a case where Libin placed facts before the police for them to investigate and act according to their discretion. In so far as Libin had the power or influence to do so, he directed police to make the arrest.

The arrest was not justified. Valderhaug bought a radio in Libin's store and paid with a cheque written out, not by him, but by the store clerk. The clerk's handwriting was illegible, and the bank returned the cheque with this note: No account. Please send number. Libin reported this to police, then saw Valderhaug, who provided a new (legible) cheque plus a bank statement showing the account was valid. At that point Libin should have returned to the police and asked them to delay action pending further investigation. But Libin did not; he went home, preferring to jeopardize Valderhaug's freedom than risk losing $75.

The court held: The heritage of liberty of the person was won by the Magna Carta, it was later developed by the courts in England and Canada, and it cannot be subordinated to the expediency of collecting a debt without statutory authority.

Canadian Criminal Code

Part IV: Offences Against the Administration of Law and Justice

Misleading Justice

Fabricating Evidence

CCC s 137.  –  Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Public Mischief

CCC s 140. (1)  –  Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by:

  1. making a false statement that accuses some other person of having committed an offence;
  2. doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
  3. reporting that an offence has been committed when it has not been committed; or
  4. reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.
Punishment

CCC s 140. (2)  –  Every one who commits public mischief:

  1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
  2. is guilty of an offence punishable on summary conviction.
Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

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