Law Times

Law Times • January 16, 2017 Page 3 www.lawtimesnews.com Uphill battle for those looking to sue police, say lawyers BY ALEX ROBINSON Law Times L awyers say a recent judg- ment dismissing a negli- gence claim against the Ottawa Police Service is a strong reaffirmation that de- cisions in underlying criminal proceedings can hold signifi- cant weight in subsequent civil actions. In Farley v. Ottawa Police Services Board, George Farley brought a lawsuit against the police after he was acquitted of a 1997 murder. He was originally convicted of the crime, but he appealed the de- cision successfully and a new trial was ordered after the Court of Appeal determined there were er- rors in the first trial's jury charge. He was then acquitted, as a main Crown witness refused to testify in the second trial. Ontar- io Superior Court Justice Calum MacLeod dismissed Farley's en- suing civil claim on summary judgment, based mainly on the fact that the Court of Appeal had ordered a second trial. MacLeod said the police had reasonable grounds to lay the charge against Farley, as the Court of Appeal, in its issuing of a new trial, had found that there was enough evidence that a jury could potentially convict him. The judge also noted that the Crown, the first trial judge and the jury scrutinized the evidence before the Court of Appeal did. "It is hard to see how in the face of each of these opportuni- ties to review the evidence it can be said that the police did not have reasonable and probable grounds to lay charges in the first place," he wrote in his decision. "In particular the finding by the Court of Appeal that a prop- erly instructed jury could have convicted on this evidence seems a complete answer unless there is evidence of suppression of po- tentially exculpatory evidence." Stuart Zacharias, who repre- sented the police in the matter, says the decision shows how sig- nificant the findings in the un- derlying criminal proceedings can be for civil lawsuits against the police. "Justice MacLeod hung his hat almost entirely on the fact that the Court of Appeal had ordered a second criminal trial," says Zacharias, a partner at Ler- ners LLP. "If the Court of Appeal looking at a full trial record is satisfied that a reasonable jury could convict the accused, then what is there even to talk about as far as the police?" The underlying criminal pro- ceedings concerned the murder of Earl Joe, a man who was set to be a key witness in the assault trial of Peter Chenier. The police arrested and charged Farley with the murder after they obtained testimony from Andre Boisclair, who said Farley had killed Joe under Chenier's instructions. Boisclair claimed he was the get- away driver and pleaded guilty to manslaughter. Boisclair refused to testify at the second trial and Farley spent more than a decade in custody before he was acquitted in 2008. Chenier was also acquitted. Farley claimed the police failed to properly investigate and that the police gave Boisclair the idea and opportunity to fabri- cate the statement. Farley's lawsuit claimed mali- cious prosecution, negligent in- vestigation and breach of Char- ter rights. MacLeod dismissed the negligent investigation aspect of the claim, saying no expert evidence had been submitted concerning the standard of care in 1997 when the investigation took place. He also dismissed the other two parts of the claim, find- ing the police had reasonable and probable grounds to arrest Farley. "It is not appropriate to assess the actions and omissions of the police by a standard of perfec- tion or to consider the benefit of hindsight whether a different re- sult would have occurred if dif- ferent decisions had been made," MacLeod wrote. "The question is not whether they were correct in acting on Mr. Boisclair's infor- mation and proceeding against Mr. Chenier and Mr. Farley but only if it was reasonable." MacLeod said Farley had submitted no evidence to dem- onstrate the police could have known Boisclair's statements were false. Nor was there evi- dence that the police had su- pressed or manufactured evi- dence, MacLeod found. Rafal Szymanski, a partner with Blaney McMurtry LLP, says police are given latitude as to what information they can rely on when forming their grounds. "While there appeared to have been issues with the reli- ability of the statement, the evidence here suggested that the eyewitness' statement was cor- roborated somewhat by other aspects of the investigation," says Szymanski, who defends police in civil lawsuits but was not in- volved in this case. Lawrence Greenspon, a certi- fied specialist in both criminal defence and civil litigation, says there are a number of big deter- rents to these kinds of actions being brought, including that plaintiffs often have to wait years for their matter to be heard. "Civil actions against the po- lice for negligent investigation, breach of Charter rights and malicious prosecution are very difficult actions to bring suc- cessfully," says Greenspon. "They are hard fought. The other side has the advantage of a large resource for legal fees, namely our tax dollars. Civil counsel should look long and hard at what's hap- pened in the criminal process before taking on this kind of a civil action." Diane Condo, who repre- sented Farley in his lawsuit, could not be reached for com- ment. LT NEWS IT'S TIME TO RANK… WHICH DO YOU THINK ARE THE LEADING PERSONAL INJURY BOUTIQUES AND ARBITRATION CHAMBERS? Complete the survey online at canadianlawyermag.com/surveys and make your picks. 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It also: • lists firms and lawyers that have expanded their practice information in their provincial listing • is organized by areas of practice by province, city and page reference in their provincial listings ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit www.carswell.com for a 30-day no-risk evaluation YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Hardbound • Published February each year • L7798-5933 • On subscription $174* • One time purchase $194* Multiple copy discounts available * Plus shipping/handling and applicable taxes CLLdir_LT_Jan16_17.indd 1 2017-01-10 1:46 PM Lawrence Greenspon says a recent deci- sion highlights the difficult battle plain- tiffs have in bringing lawsuits against the police.

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