A.M. v. Matthews, 2012 ABQB 185

Court of Queen ’ s Bench of Alberta Citation: A.M. v. Matthews, 2012 ABQB 185 Date: 20120507 Docket: 0103 11313 Registry: Edmonton Between: A. M. and S. K. K. Plaintiffs - and - Stephen Matthews, Robert Pagee, Keith Smith, F. Metselaar, Brian Stadel (collectively referred to as the “ Police ” ), S. A. , otherwise known as R.M.A., A. M., and Robert Wasylyshen, Colleen M.

Connolly Defendants Restriction on Publication: By analogy to the principles set out in s. 486(3) of the Criminal Code , the name and any identifying information relating to the male plaintiff, the plaintiff ’ s spouse, the plaintiff by counter-claim and the male plaintiff ’ s daughter who is a named defendant shall not be disclosed and no information may be published that may tend to identify them. No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act .

See the Child, Youth and Family Enhancement Act , s. 126.2. Corrected judgment: A corrigendum was issued on June 12, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment.

_______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________

Definitions........................................................................................................................... Page: 3 Background........................................................................................................................ Page: 4 Evidence............................................................................................................................. Page: 4 (

a) The Early History of the M./A. Family....................................................... Page: 4 (

b) Allegations and Findings in the 1990s.................................................... Page: 5 (

i) Assault of M. by Ms. A. ................................................................. Page: 5 (ii) 1997 Sexual Assault Complaint by Ms. A. ................................. Page: 5 (iii) Mr. M.’s Psychological Assessment............................................ Page: 6 (iv) Ms. A.’s Parenting Capacity Assessment................................... Page: 6 (

v) Other Information from Child Welfare........................................... Page: 6 (vi) M.M.’s Allegations from 1998....................................................... Page: 7 (vii) Findings in the 1999 Custody Battle............................................ Page: 8 (viii) Home Assessment by Social Services....................................... Page: 8 (ix) Allegations of Fraud and Abduction by Ms. A. ........................... Page: 9 (

x) M.M.’s Interview on August 25, 1999......................................... Page: 10 (xi) M.M.’s Disappearance on September 16, 1999..................... Page: 10 (xii) The September 1999 Investigation by Child Welfare.............. Page: 10 (xiii) M.M.’s Statements about Mr. M. in Oct-Nov 1999................... Page: 11 (xiv) Ms. A.’s Utter Threats Allegation................................................ Page: 12 (xv) Mention of False Sexual Assault Allegations in mid-2000...... Page: 12 (

c) Events Leading to the Arrest.................................................................. Page: 12 (

i) Report by Child Welfare.............................................................. Page: 13 (ii) The Interviews............................................................................... Page: 13 M.M................................................................................................ Page: 13 A.M................................................................................................ Page: 13 Ms. A. ........................................................................................... Page: 14

Ms. Driediger............................................................................... Page: 14 Ms. Connolly................................................................................. Page: 14 (iii) Requests for Additional Information........................................... Page: 15 (iv) The Escalation in Early January 2001....................................... Page: 15 (

d) Events on the Day of Arrest.................................................................... Page: 16 (

e) Investigation Following the Arrest.......................................................... Page: 17 (

f) Steps Following the Commencement of this Action............................ Page: 17 Positions of the Parties................................................................................................... Page: 18 1. Trespass................................................................................................... Page: 18 (

a) Plaintiffs’ Position........................................................................ Page: 18 (

b) Police Defendants’ Position....................................................... Page: 18 2. Wrongful Arrest........................................................................................ Page: 18 (

a) Plaintiffs’ Position........................................................................ Page: 18 (

b) Police Defendants’ Position....................................................... Page: 20 3. False Imprisonment................................................................................. Page: 21 4. Negligent Investigation............................................................................ Page: 21 (

a) Plaintiffs’ Position........................................................................ Page: 21 (

i) Submissions on Law....................................................... Page: 21 (ii) Submissions on Facts and Credibility........................... Page: 21 (

b) Police Defendants’ Position....................................................... Page: 23 (

i) Submissions on Law....................................................... Page: 23 (ii) Submissions on Facts and Credibility........................... Page: 23 (iii) Response to the Plaintiffs’ Argument............................ Page: 24 5. Malicious Prosecution............................................................................. Page: 25 (

a) Plaintiffs’ Position........................................................................ Page: 25 (

b) Police Defendants’ Position....................................................... Page: 26 6. Quantum of Damages............................................................................. Page: 27 (

a) Plaintiffs’ Position........................................................................ Page: 27 (

i) General............................................................................. Page: 27 (ii) Trespass........................................................................... Page: 27 (iii) False Arrest and False Imprisonment........................... Page: 27 (iv) Negligent Investigation.................................................... Page: 28 (

v) Punitive Damages........................................................... Page: 28 (vi) Amount Claimed.............................................................. Page: 29 (

b) Police Defendants’ Position....................................................... Page: 29 (

i) Mr. M.’s Damages........................................................... Page: 29 (ii) Ms. K.’s Damages........................................................... Page: 30

(iii) Punitive Damages........................................................... Page: 32 (iv)

Summary regarding Quantum........................................ Page: 32 (

v) Costs................................................................................. Page: 32 Analysis............................................................................................................................. Page: 33 (

a) Wrongful Arrest........................................................................................ Page: 33 (

b) Trespass................................................................................................... Page: 40 (

c) False Imprisonment................................................................................. Page: 41 (

d) Negligent Investigation............................................................................ Page: 41 (

e) Malicious Prosecution............................................................................. Page: 45 (

f) Damages.................................................................................................. Page: 49 Conclusion........................................................................................................................ Page: 50

Definitions In this judgment: “A.M.” is Mr. M.’s daughter with his first wife; “Police Defendants” means collectively Stephen Matthews, Robert Pagee, Keith Smith, F. Metselaar and Brian Stadel; “EPS” means the Edmonton Police Service. Background [ 1 ] The Plaintiffs, Mr. M. and Ms. K., were a married couple on January 11, 2001. At 8:15 a.m. on that date Mr. M. was arrested by the Police Defendants at his home after M.M. and A.M. complained that he had sexually assaulted them in the fall of 1998. [ 2 ] Mr. M. was charged with six counts of sexual assault, sexual touching, and uttering threats.

He maintained that he was innocent throughout his initial questioning, which took place on January 11. The following morning Mr. M. was granted bail and released with conditions. [ 3 ] On March 21, 2001, the Crown Prosecutor's office stayed all charges due to the nature and history of the family, and the lack of a satisfactory explanation for the delay in reporting. [ 4 ] The Plaintiffs seek damages in tort. The thrust of their argument is that, given a history of unproven allegations by Ms.

A., the Police Defendants should have taken additional steps to scrutinize the credibility of the complainants prior to arresting Mr. M.

[ 5 ] The Statement of Claim raised the following causes of action against the Police Defendants: trespass; assault and battery; wrongful arrest; false imprisonment; negligent investigation; malicious prosecution; intimidation; and intentional infliction of mental suffering. [ 6 ] Claims against other Defendants were settled or withdrawn before trial. [ 7 ] At trial, the Plaintiffs argued five claims against the Police Defendants: (

i) trespass, (ii) wrongful arrest, (iii) false imprisonment, (iv) negligent investigation, and (

v) malicious prosecution. Evidence (

a) The Early History of the M./A. Family [ 8 ] Mr. M. defected from his country of origin in 1987. He arrived in Canada six months later. [ 9 ] Mr. M’s first marriage had failed and his second wife, R. M. A., refused to come to Canada. Mr. M. arranged to marry Ms. A. through her father. Ms. A. arrived in Canada under a false identity (that of R. M. A.). Ms. A. allegedly lied that she was 19 to match the identity of Ms. A., whereas she maintains she was only 14 at the time. She says she was told by her father that she was going to Canada to study, and that Mr.

M. would be looking after her. [ 10 ] The day she arrived in Canada, Mr. M. allegedly told her that she came here to be his wife. She alleges that he then had forced intercourse with her. She also alleged that during intercourse her labia was ripped because it had been sewn up following the female circumcision she had undergone in Somalia. He allegedly raped her again before she could heal. As a result of these alleged sexual assaults, Ms. A. gave birth to M.M. in 1990. [ 11 ] After M.M. was born, Mr. M.’s relationship with Ms. A. continued to deteriorate. Following a series of alleged domestic assaults, Ms.

A. petitioned for divorce and obtained a restraining order against Mr. M. (

b) Allegations and Findings in the 1990s [ 12 ] In arguing that the police should have taken additional steps to verify A.M.’s and M.M.’s complaints before arresting him, Mr. M. relies on the history of allegations made against him. As this evidence is relevant to the issue of liability, I summarize it at some length below. (

i) Assault of M. by Ms. A. [ 13 ] Prior to this incident, Mr. M. was effectively absent from Ms. A.’s and M.M.’s lives. Upon learning about the assaults on January 31, 1997, Mr. M. reported Ms. A. to Child Welfare and initiated proceedings seeking custody of M.M. [ 14 ] The majority of evidence concerning the assaults comes from the findings of fact made by Justice Smith at a custody hearing on May 7, 1999. Justice Smith found that Ms. A. beat M.M. “severely” on three occasions in early 1997, because Ms. A. could not control her anger in light of a multitude of pressures she was facing.

M.M. was apprehended and placed in foster care. One of the grounds for apprehension stated in the Investigation Report was that Ms. A. was not truthful as to when and where the abuse occurred. Ms. A. eventually pleaded guilty to charges of assault with a weapon and was given two years’ probation.

(ii) 1997 Sexual Assault Complaint by Ms. A. [ 15 ] On February 6, 1997, seven days after Mr. M. reported Ms. A. to Child Welfare, Ms. A. made a complaint to the EPS, alleging that Mr. M. had repeatedly sexually assaulted her beginning on May 10, 1989. Cst. Welsh spoke with Ms. A. and noted in her report that Ms. A. had scarring on her labia. Ms. A. told Cst. Welsh that she had been a victim of female genital mutilation and that Mr. M. had ripped her labia when he forced himself on her. According to Ms. A.’s doctor, the scarring could have been either from childbirth or from forced intercourse. [ 16 ] Ms.

A. also told the police that she charged Mr. M. with physical assault twice in the early 1990s. Only one charge went to court, and Mr. M. was acquitted. Ms. A. said she dropped the second charge because she feared for her and her daughter’s lives. She stated that she had never charged him with rape before 1997 because she was afraid he would kill her. There is no independent verification of this information. [ 17 ] An investigation into the sexual assault allegations followed.

On March 20, 1998, the Crown Prosecutor’s Office concluded that there were insufficient grounds to lay criminal charges. [ 18 ] On April 3, 1998, Detective R.W. Kittle of the Sexual Assault

Section of the EPS wrote a follow-up report in which he suggested that Ms. A. had ample opportunity to report the alleged sexual assaults to the police at the time she was seeking a restraining order in the early 1990s. He remarked as follows as to the timing of Ms. A.’s complaint: “it is now, with the possibility of losing her children or providing visitation rights to the child’s father, that she wants to proceed with this complaint.” (iii) Mr. M. ’s Psychological Assessment [ 19 ] Shortly after Mr.

M. commenced proceedings seeking custody of M.M., he underwent a Psychological Assessment to assess his parenting ability. During the Assessment, Mr. M. stated that there was no one reason why his marriage to Ms. A. failed. He cited their age difference, difference in education and Ms. A.’s feeling of social isolation due to her move to Canada. This evidence is inconsistent with Ms. A.’s allegations of physical and sexual assault, and the Assessment pointed that out. However, the Assessment also pointed out that Mr. M. had admitted to the physical abuse of Ms. A. to a social worker, Ms.

Michelle Merchant. [ 20 ] The Assessment concluded that Mr. M.’s personality functioning suggested an individual who is apt to deny problems in his life, but whose profile does not give rise to any clinical concerns. The Assessment also noted that Mr. M.’s Child Abuse Potential Profile indicated that he answered the questions in a manner which over-emphasized the positive aspects of his functioning while denying or under-representing negative beliefs. The Assessment concluded that these findings are consistent with an individual attempting to “Fake Good.” (iv) Ms.

A. ’s Parenting Capacity Assessment [ 21 ] Between February and June 1997, Child Welfare conducted a number of interviews with Ms. A. which provide additional insight into the relationship between Ms. A. and Mr. M. Ms. A. reported that Mr. M. constantly threatened her with death, on one occasion with a knife. She reported she felt like a prisoner in their relationship and was afraid to charge him with assault or leave him, out of fear for her life or of Mr. M. kidnapping M.M.

She also reported that these experiences continued to cause her great pain and depression, leading her to beat M.M. after she had told her she hated her and made other rejecting statements. [ 22 ] The Assessment confirmed this account, adding that Ms. A.’s behaviour was consistent with post-traumatic stress disorder. Both Ms. A.’s self-report and the Assessment are consistent with Justice Smith’s findings of fact at the May 7, 1999 hearing. (

v) Other Information from Child Welfare

[ 23 ] On July 15, 1998, Child Welfare prepared an Information Consolidation for M.M.’s case. It reveals the following relevant points: ∙ M.M. reported that Mr. M. told her the reason he had not seen her for six years was because Ms. A. had ruined his life by calling the police too many times. ∙ M.M. reported that Mr. M. asked her to take off her shirt to show his friends any bruises she had on her body. ∙ M.M. expressed ongoing concern about Mr.

M. being able to take her away from her mother and consistently reported feeling uncomfortable during her visits with him. [ 24 ] These three points may have raised suspicions that M.M., who was repeatedly referred to as being adultified, could have fabricated allegations of sexual assault, possibly to prevent him from taking her away from Ms. A. However, it must be kept in mind that M.M.’s relationship with her mother deteriorated significantly after 1998.

In addition, M.M. reported this information in 1998, some two years before she made the allegations of sexual assault. [ 25 ] In addition to the above, the Information Consolidation contains the following inconsistent statements by Ms. A. : ∙ She reported that Mr. M. arranged for her to undergo female genital mutilation and later raped her before she had time to heal from this operation. ∙ She stated that Mr. M. pushed her down the stairs when he learned that she was pregnant with M.M., in an attempt to end the pregnancy. [ 26 ] These points conflict with a witness statement Ms.

A. made at the time she brought her allegations against Mr. M. in 1997. The 1997 statement did not suggest that Mr. M. had forced her to undergo female genital mutilation. In addition, it stated that he had raped her before she had time to heal from the initial intercourse with Mr. M., not the operation. There was also no suggestion that Mr. M. had pushed Ms. A. down the stairs in an attempt to end her pregnancy. [ 27 ] Nevertheless, the Information Consolidation states that all professionals, including Alberta Children’s Hospital, Cambyr agencies, Sheriff King Shelter, and Child Welfare, perceived Ms.

A. as being open, honest, and consistent in her recollection of her history. (vi) M.M. ’s Allegations from 1998 [ 28 ] On August 31, 1998, M.M. was placed in Mr. M.’s primary care, with joint interim custody granted to Mr. M. and Ms. A. On September 8, 1998, the EPS responded to a “missing person” call after someone found M.M. crying on a front lawn. M.M. told the police that she had run away from Mr. M.’s home because her father had been “mean” to her and “beat her.” When questioned further, M.M. revealed that her father had not beaten her; he had only been “mean” to her.

The police took M.M. back to her father’s residence. Mr. M. said that he had sent his daughter to her room because she had talked back to him, and that she instead left the residence. Mr. M. advised the police that he would be seeking counselling for M.M. [ 29 ] A day later Mr. M. contacted Child Welfare, expressing concern about M.M.’s accusations and requesting the Department’s intervention.

On September 11, 1998, he contacted Child Welfare again to report that he had a hard time getting M.M. off to school and that, when he took M.M. by the arm to lead her there, she screamed “rape.” A Child Welfare investigator interviewed M.M. at her school shortly after. M.M. said that Mr. M. was “mean” because he grabbed her arm and threw her on her bed, but said he had not hurt her otherwise.

[ 30 ] These events took place at the time M.M. later alleged the sexual assaults took place. M.M. never mentioned any sexual activity in her interview with Child Welfare investigators. To the contrary, she stated that her dad had not hurt her, other than throwing her on the bed. [ 31 ] These actions by both M.M. and Mr. M. are supportive of the Plaintiffs’ position that the sexual assault allegations might have been fabricated. The EPS had this information on file No. 00-129165.

Accordingly, I find that there were some sources of concern about the truthfulness of the sexual assault allegations. (vii) Findings in the 1999 Custody Battle [ 32 ] Several further findings of fact arise from Justice Smith’s decision. She found that Ms. A. demonstrated “willingness and ability to put her children first” and she “deeply loves her children.” She also found that M.M. was more closely bonded with Ms. A. than any other person. Justice Smith held that this bond arose from Ms. A.’s good parenting prior to the beatings in 1996, and that the beatings were situational, rather than habitual.

In addition, M.M. was more closely bonded with A.M. than with any other of her siblings. She also noted that she found Ms. A. to have genuinely feared Mr. M. in the past and that the stresses Ms. A. were experiencing may have precipitated the assaults. As a result, she ordered joint custody for M.M., with Ms. A. providing the primary residence beginning on June 27, 1999. [ 33 ] Justice Smith also expressed particular concern with respect to Ms. A.’s

interpretation of M.M.’s words. She did not expressly link this concern to M.M.’s allegations of sexual assault. She remarked that Ms. A. needed to learn the difference between the child’s honestly held point of view and a correct, objective

interpretation of an external event. She stressed that this difference was particularly crucial in dealing with a child who lives in two homes. Justice Smith concluded that Ms. A. would benefit from strategies for dealing with the point-of-view issues which are not supported by information from Mr. M.’s home. (viii) Home Assessment by Social Services [ 34 ] Some further information comes from an undated Home Assessment prepared by Social Services some time around the 1999 Custody Battle. The Assessment quoted Mr. M. as saying that he and Ms. A. argued extensively and that, during one argument, Ms.

A. started throwing things at him. Mr. M. pushed Ms. A. and slapped her. Ms. A. called the police. Mr. M. was charged twice, but the charges were later dismissed. [ 35 ] The Assessment characterized Mr. M. as an “intelligent and rational individual.” It pointed out that Mr. M. indicated that he had learned that physical discipline is not acceptable in Canada and that he would not use it for fear of going to jail. Mr. M. also expressed his belief that M.M. thought she had freedom to do what she wanted because he could not use physical discipline. The Assessment concluded that Mr.

M. seemed to have difficulty determining how a child’s behaviour can be controlled without physical discipline. However, it identified no protection concerns with respect to Mr. M.’s household. (ix) Allegations of Fraud and Abduction by Ms. A. [ 36 ] On June 27, 1999, the Plaintiff, Ms. K., returned M.M. to her mother in Calgary. M.M. had a non-refundable return bus ticket and a handwritten permission form for Ms. A. to sign so that M.M. could travel to Vancouver with Mr. M. in August 1999. Mr. M. required Ms.

A.’s permission because Justice Smith’s custody order expressly prohibited either of them from removing M.M. from Alberta without the other’s consent. [ 37 ] On July 8, 1999, the EPS began investigating an allegation that Ms. A. had abducted M.M. to Vancouver. Ms. A. produced to EPS a photocopy which purported to be a letter of authority, signed by Mr. M., allowing Ms. A. to take M.M. to Vancouver. On July 22, 1999, Ms. A. swore an affidavit, in which she deposed that she and Mr. M. had discussed her move to Vancouver and that Mr. M. had provided the letter in exchange for $300.00. Mr.

M. denied providing the letter or asking for money in return for his permission.

[ 38 ] Ms. A.’s version finds some support in the police file. In her July 22 affidavit, Ms. A. deposed that Mr. M. wanted to speak with Ms. A.’s prospective employer in Vancouver so he could verify that she would be employed full time. She also deposed that Mr. M. said he would consent to her moving to Vancouver if she agreed to pay for M.M.’s trips to Edmonton. The police file contains a copy of a handwritten letter by one Abu Ali, in which he confirmed that S.A. will be working with him full-time. The file also contains a handwritten letter by Ms. A. to Mr.

M., in which she confirms the agreement to share M.M.’s transportation expenses. [ 39 ] Despite the apparent consistencies between Ms. A.’s affidavit and the police file, the police file contains no indication of any improper behaviour by Mr. M. towards M.M. The police interviewed Child Welfare staff. The worst information was that M.M. said that her father had been “mean” to her. [ 40 ] Upon examining the purported letter of authorization, Detective Glena of the EPS and Justice Smith both agreed that the letter was a forgery. They concluded that Mr.

M.’s signature was taken off another document and pasted onto the letter. The police performed fingerprint analysis, but could not prove who had made the letter. Ms. A. denied any involvement. She insisted that Mr. M. fabricated the whole story and wanted him to be charged with public mischief. [ 41 ] Mr. M. wanted Ms. A. to be charged with fraud, forgery, or perjury. While the child abduction investigation was ongoing, M.M. was in foster care. She stated she did not want to live with her father because they “fight.” [ 42 ] Throughout the investigation, Mr.

M. co-operated with the police, even when the focus of the investigation shifted towards him. Eventually, the EPS concluded that there was no evidence sufficient to lay charges against anyone. Mr. M. was very displeased with the decision not to charge Ms. A. and launched a formal complaint. [ 43 ] On August 6, 1999, Mr. M. appeared before Justice Smith, seeking variation of the original custody order. Justice Smith ordered that M.M. was to be turned over to Mr. M. on August 15, 1999, and remain under Mr. M.’s care until Ms. A. returned to Alberta. This occurred without incident on August 15. (

x) M.M. ’s Interview on August 25, 1999 [ 44 ] Shortly after M.M. was returned from British Columbia, Cst. Mandrusiak of the EPS contacted Mr. M. to arrange an interview with M.M. The interview took place on August 25, 1999, and was videotaped. Cst. Mandrusiak found M.M. to be an “extremely intelligent and articulate nine-year-old.” During the interview, M.M. stated that she did not discuss any incidents of physical abuse by her father except for one in which she alleged Mr. M. forced her up from the living-room floor with his foot after she refused to listen to him. [ 45 ] With respect to Mr.

M.’s alleged letter of authority, M.M. stated that she was with her mother when she found the letter. However, she then recanted and appeared confused about whether she was with her mother. She confirmed that her mother discussed the significance of the letter with her and told her that she could lose her privileges and go to jail if she did not get the letter. She also admitted that she had lied in the past to protect her mother. (xi) M.M. ’s Disappearance on September 16, 1999 [ 46 ] On September 16, 1999, Mr. M. reported to the EPS that M.M. was missing.

The Police Event Chronology contained a remark that there was a chance that Ms. A. might have been planning to take M.M. out of the province or country in violation of a court order. M.M. later returned to Mr. M., and the case was closed. (xii) The September 1999 Investigation by Child Welfare [ 47 ] Events quickly escalated after M.M.’s disappearance on September 16. On September 20, 1999, Edmonton Emergency Social

Services received a report of emotional, mental and physical abuse and neglect of M.M. by her father. It was reported that Mr. M. was yelling and swearing at M.M., that he refused to provide her with breakfast, and that he twisted her arm and placed her in a closet. Mr. M. again contacted Child Welfare, requesting their support with M.M.’s behavioural difficulties. He stated he felt that M.M.’s behavioural difficulties had escalated following the commencement of her unsupervised contact with Ms. A. He also described M.M. as “manipulative”, and said that she did not respect his authority.

He suggested that M.M. could benefit from counselling to address historical abuse issues. [ 48 ] Child Welfare interviewed M.M. on September 22, 1999. Like Cst. Mandrusiak, the Child Welfare representatives found M.M. to be very articulate and mature for her age. M.M. stated that her mother hated Mr. M. very much. She also stated that she would like to be the boss and did not like the rules at Mr. M.’s home. She confirmed there was a conflict between her and Mr. M. regarding the rules; however, she denied any use of physical punishment by him.

She said that her father threw her in the closet when he took her by the wrist and she pulled back. According to Mr. M., M.M. had fallen backwards into her closet when she pulled back from him. [ 49 ] Child Welfare attempted to provide in-home support services for Mr. M., but that proved unsuccessful. Child Welfare eventually concluded that M.M.’s behaviour rendered Mr. M. unable/unwilling to provide care and placed M.M. in foster care on September 23, 1999. (xiii) M.M. ’s Statements about Mr. M. in Oct-Nov 1999 [ 50 ] Child Services visited M.M.’s foster home on October 29, 1999.

During the visit, M.M. stated that she believed that her father had raped her mother and his current wife and that he would sexually abuse her. Apparently this happened after M.M.’s mother told her that she (M.M.) was the product of a rape. M.M.’s foster mother also noted that M.M. had excessive sexual knowledge for a nine year old girl. According to a Court Report prepared by Child Welfare, on November 3, 1999 M.M. phoned Mr. M. and accused him of raping her mother and Ms. K. She also expressed her concern that he was going to rape her.

She later said that she believed her father would hurt her because her mother told her so. [ 51 ] These events took place over a year after the sexual assault was alleged to have occurred.

Possible explanations for M.M.’s advanced sexual knowledge and her statements that she was afraid her father would rape her more than a year after the sexual assaults were alleged to have taken place are that M.M. may have been coached by her mother, or that she may have used allegations of sexual assault to “get back” at her father. [ 52 ] Significantly, a Confidential Psychological Brief prepared by Crossroads Family Service stated that some time in 1999, when M.M. was asked if anyone had ever touched any part of her body, including her private parts, in a way that made her feel uncomfortable, she replied that no one had sexually touched her and that she was proud of that.

This conversation occurred over a year after the sexual assaults were alleged to have taken place. [ 53 ] By November 22, 1999, M.M. had completed approximately seven hours of therapy sessions with Sophie Yohami, and her fears about her father had abated. [ 54 ] The information found in the Child Welfare reports could have raised red flags with the EPS. However, the Police Defendants may not have had access to these documents prior to Mr. M.’s arrest. They do not appear in the Defendants’ Agreed Exhibits, only in the Plaintiffs’ Affidavit of Records. (xiv) Ms.

A. ’s Utter Threats Allegation [ 55 ] On May 4, 2000, Ms. A. called the EPS and reported that Mr. M. repeatedly threatened to kill her and her children if she did not leave A.M. alone. No charges were laid. The police report is relevant, in that it contains the following passage: The history between M. and A. has been a long drawn out affair where each party continuously alleges that each other is the bad guy. Neither party has been entirely truthful in their investigation.

[ 56 ] This observation finds ample support in the police record. A later Police Narrative stated that Ms. A. had admitted during a police interview that she had falsely made the 1997 Sexual Assault allegation in the hopes it would help her get her children back. Det. Matthews later testified that this was an inconsistency and that the original report by Cst. Williams never stated this.

The word “falsely” appears in Exhibit 3, F00230, but not in Exhibit 3, G00236. [ 57 ] Taken together, these remarks could cause a reasonable investigating officer to conduct further inquiries into any allegations emanating from Ms. A., before arresting Mr. M. However, these remarks relate to Ms. A.’s conduct, not that of M.M. or A.M. [ 58 ] Upon learning of the utter threats allegation, Mr. M. insisted that the police charge Ms. A. with public mischief. The Crown Prosecutor’s office found that there was insufficient evidence to lay a charge.

The mischief investigation is largely irrelevant to the case before me, except for one notable statement in Sgt. Schreiner’s July 26, 2000, letter to Mr. M. In response to Mr. M.’s request to “flag” Ms. A.’s name, Sgt. Schreiner stated that he had flagged her address so that all investigators responding to Ms. A.’s address would review Sgt. Schreiner’s investigative brief prior to conducting further investigations into Ms.

A.’s allegations. [ 59 ] This suggests that, by July 26, 2000, four months prior to the allegation of sexual assault by M.M., the EPS’ internal procedures provided a warning that required investigative officers to review the briefs dealing with the history of the relationship between Mr. M. and Ms. A. prior to investigating any of Ms. A.’s allegations. However, I note that Sgt. Schreiner clearly explained in his letter that this procedure was designed to deal with allegations by Ms. A. He expressly cautioned Mr.

M. that, if new allegations fell outside of the material covered in the investigative brief, EPS would contact him to ascertain his side of the story. (xv) Mention of False Sexual Assault Allegations in mid -2000 [ 60 ] On July 12, 2000, the EPS sent a Follow-up Narrative titled “False Sexual Assault Allegation” to the Attention of the Crown Prosecutor’s Office in response to a prior request from that office. The subject line is the only element that could have alerted an investigating officer to the possibility of sexual assault charges being fabricated. (

c) Events Leading to the Arrest (

i) Report by Child Welfare [ 61 ] On November 21, 2000, Child Welfare worker Marcia McKoy received a call from Theresa Driediger, a child therapist, relating that, on November 17, 2000, M.M. disclosed that her father sexually molested her shortly after he got custody in September 1998. Ms. Driediger believed M.M. She testified that M.M. always seemed honest and truthful in revealing her feelings. She also testified that she observed that M.M.’s voice was quiet and reserved, that she was looking down, that she was much quieter than normal, and that she seemed frightened. Ms.

Driediger asked M.M. why she hadn’t told about the sexual assault before. M.M. explained that she tried to tell a social worker before, but the worker knew her father and did not believe Mr. M. would do that. [ 62 ] Ms. McKoy notified the EPS via a Child Abuse Referral Report. She later met with Ms. A., who confirmed M.M.’s story and added that A.M. had also been molested by Mr. M. (ii) The Interviews • M.M. [ 63 ] On December 5, 2000, Det. Matthews videotape interviewed M.M. using the Dr. John Yuille child interview technique. Ms. McCoy monitored the interview. Det. Matthews reviewed M.M.’s interview with Ms.

McCoy after it was completed.

[ 64 ] M.M. disclosed that the sexual assaults occurred every day between August 1998 and September 1998. The assaults became less frequent after A.M. came from Somalia to live with them. She said Mr. M. threatened to kill her if she did not take off her clothes. He allegedly said “I’m gonna kill you and nobody’s gonna ever find out because I’m not gonna put my fingerprints on you. I’m gonna make sure they point it to your mom or somebody that you love.” She also described the sexual assaults in great detail, pointing out: the time of day, the location of the assaults inside the house, the threats Mr.

M. made, the position she was in, and the finger Mr. M. used to touch her vagina. [ 65 ] M.M. also said Mr. M. made her watch “dirty movies” with him and that he wanted her to do the same thing they were doing in the movie. She explained that the sexual assaults were the reason she was trying to run away. She said she never told Ms. K. about the assaults because she was afraid of his threat. Det. Matthews found M.M. to be a “smart and honest child, quite mature for her age.” He believed her.

M.M. referred to “physical abuse, sexual abuse, verbal use” in a single breath; perhaps unusual vocabulary for a 10-year- old. However, it is consistent with earlier observations made by M.M.’s therapist, who noted that M.M. possessed an advanced vocabulary for her age and that she had “clearly” been influenced by adult conversations. • A.M. [ 66 ] On December 5, 2000, Det. Matthews interviewed A.M. , who was an adult at the time. A.M. disclosed that Mr. M. would come up from behind her and grab her breasts and bottom over the top of her clothes.

She stated that these assaults started on September 23, 1998, and occurred almost daily until December 15, 1998, when Mr. M. kicked her out of the house. She says there were “at least 100" incidents of this nature. Like her sister, A.M. stated that her father threatened to shoot her. A.M. believed him because she thought he had a gun at home. As with M.M., Det. Matthews found A.M. to be a “mature, intelligent and honest” complainant. • Ms. A. [ 67 ] Prior to interviewing M.M. and A.M., Det. Matthews had spoken with Ms. A. She gave him a brief background about her relationship with Mr. M. Ms.

A. reiterated that Mr. M. had physically and sexually assaulted her in the early 1990s. She said that, when she fled her marital home following a severe beating, Mr. M. and other members of the Somali community followed her around, despite Ms. A. getting a restraining order. Ms. A. eventually moved to Ontario to raise M.M. • Ms. Driediger [ 68 ] On December 7, 2000, Ms. Driediger called Det. Matthews and expressed grave concerns for the safety of Ms. A. and her children. According to Det. Matthews’ notes, she stated that Mr. M. had psychopathic tendencies and had made serious threats against them. At trial, Ms.

Driediger denied saying that Mr. M. had psychopathic tendencies. Ms. Driediger also disclosed what M.M. had told her about the alleged sexual assaults. Ms. Driediger advised Det. Matthews that Mr. M. was an ex-army officer and expressed concerns about his ability to kill. • Ms. Connolly [ 69 ] On December 8, 2000, Det. Matthews contacted Ms. A.’s counsel, Ms. Connolly. He did not disclose the specific allegations he was investigating, only that they were of a sexual nature. According to Det. Matthews’ notes, Ms. Connolly confirmed that Mr. M. had stalked Ms. A. and her children in the past. She stated that Mr.

M. hated Ms. A. “with passion.” She also stated that someone from Mr. M.’s side of the gallery followed her to her car after one of the court proceedings. She also related that, on one occasion, some information came out during court proceedings that could only be known if someone was at her house and had looked into her living room. Ms. Connolly stated she believed Mr. M. to be a manipulative individual capable of anything. Det. Matthews testified that he relied on Ms.

Connolly’s information as she seemed to have an in-depth knowledge of the family history, and, being a lawyer, he considered her to be a credible witness. [ 70 ] Det. Matthews admitted at trial that his notes were not verbatim and that he was making them while speaking to each of Ms. Driediger and Ms. Connolly.

(iii) Requests for Additional Information [ 71 ] Following the completion of the interviews, on December 12, 2000, Det. Matthews made an Internal Access Request for Information to obtain police files dealing with prior incidents involving Mr. M., Ms. A., and their children. Det. Matthews made a further request on December 29, 2000. His review of the files confirmed the safety concerns he had about Mr. M. After reviewing the files, Det. Matthews had no concerns about the credibility of A.M., M.M., Ms. Driediger or Ms. Connolly. [ 72 ] On December 15, 2000, Sgt. Schreiner wrote to Mr.

M.’s counsel, responding to Mr. M.’s complaint letter. Sgt. Schreiner acknowledged that Mr. M. had further evidence he wished to present to the investigators and requested that Mr. M. provide this evidence before December 31, 2000. It is unclear whether Mr. M. ever provided that evidence. (iv) The Escalation in Early January 2001 [ 73 ] On January 8, 2001, Det. Matthews contacted Ms. A. She stated that on January 6, 2001, while attending a religious celebration, Mr. M. came up and took pictures of her, A.M., and M.M. without asking permission or saying anything. Mr.

M. was also seen twice driving by M.M.’s school. Det. Matthews had discussions with Ms. A. about finding a safe place. She confirmed that she had made arrangements with a friend. [ 74 ] On January 10, 2001, Det. Matthews requested that Mr. M. come and see him at police headquarters about a “serious family matter.” Det. Matthews stated that he had “done his homework” on the file and wanted to hear Mr. M.’s side. After consulting with his lawyer, Mr. M. called Det. Matthews back and said he would only meet him at his lawyer’s office, with the interview being taped, at 10:00 AM on January 12, 2001. Mr.

M. insisted he would not come to police headquarters. Det. Matthews indicated this was not acceptable and stated that he would “continue on from there then.” [ 75 ] At 3:15 PM on January 10, 2001, Det. Matthews performed a CPIC check on Mr. M. to determine if he had any weapons registered to his name. The search disclosed no registrations in Mr. M.’s name. Det. Matthews later testified that he realized that the searches could not be relied on, as this was not a mandatory registration program. Det. Matthews also had a discussion with Det. Pagee and S/Sgt. Eastcott on the need to interview Mr. M. Det.

Pagee testified that he felt that there would be grounds to support an arrest, as both A.M.’s and M.M.’s statements had disclosed sexual assault allegations and information on uttering threats. Det. Pagee, like Det. Matthews, had special training for interviewing children and investigating child abuse. [ 76 ] The reason why the EPS took these steps in response to the children’s complaints is explained in a letter to Mr. M.’s counsel dated December 15, 2000. That letter dealt with Mr. M.’s complaint that the police attended at his residence in response to Ms. A.’s utter threats complaint. Sgt.

Schreiner explained that police are required to make at least preliminary inquiries regarding any and/or all allegations, or otherwise face possible disciplinary sanctions. However, the Defence admits that Det. Matthews “felt that he needed to arrest Mr. M. to interview him.” [ 77 ] Det. Matthews’ grounds for opposing Mr. M.’s bail further illustrate the concerns that led him to arrest Mr. M. Central to Det. Mathews’ concerns was Mr. M.’s military background (including his training on killing and the use of weapons). The Police Defendants were acting on the information they received from Ms. Driediger and Ms.

Connolly and the grave concerns they expressed for the safety of Ms. A. and the children. Det. Matthews reported that, after speaking with Mr. M., he too had “real fears for the safety of the witnesses.” He confirmed this in his trial testimony. (

d) Events on the Day of Arrest [ 78 ] At 8:15 AM on January 11, 2001, the Police Defendants attended at the Plaintiffs’ residence at the direction of the Det. Matthews. Mr. M. was arrested, handcuffed, and taken to police headquarters. Det. Stadel remained with Ms. K. to inquire whether there were weapons or pornography in the house, and whether Ms. K. had any concerns for her safety. The Police Defendants did not search the house and left when Ms. K. gave negative answers.

[ 79 ] Mr. M. was interviewed by Det. Matthews. Det. Pagee monitored the interview. During the interview, Mr. M. insisted that he “hadn’t done anything wrong in his life” and repeatedly insisted that he was innocent. Mr. M. also advised Det. Matthews that he had been accused of rape before and that he had a document that showed he was innocent. Det. Matthews’ report portrays Mr.

M.’s conduct in a significantly more negative light than the Arrest Booking Detail, stating that he was uncooperative, refused to provide very basic information and “constantly” changed the subject, refusing to answer any questions about the statements made by his daughters. Det. Matthews’ account is contradicted by Arrest Booking Details provided in response to Undertaking No. 14, which indicated Mr. M.’s attitude as “cooperative”. The interview was played at trial and my observations and conclusions were that Mr.

M.’s responses were in many respects evasive, indirect, and occasionally confrontational. [ 80 ] During questioning of Mr. M., Det. Matthews contacted Ms. Perkins at Child Welfare to search for previous allegations made by M.M. Ms. Perkins answered within an hour, stating that the only relevant incident was M.M. screaming “rape” in 1998, when Mr. M. tried to take her to school. Ms. Perkins advised Det. Matthews that there was no investigation of sexual assault. Det.

Matthews testified at trial that he considered M.M. yelling “rape” as possible leakage, which in his experience occurs on sexual assault files before the ultimate disclosure is made. [ 81 ] Det. Matthews testified that, during the interview with Mr. M., he was not at a point where he had concluded that the alleged assaults had occurred; he was simply trying to elicit information to get Mr. M.’s side of the story. (

e) Investigation Following the Arrest [ 82 ] Shortly after the arrest, on January 12, 2001, the Crown Prosecutor’s office contacted Det. Matthews, requesting him to check with Sgt. Schreiner for the “rest of the story” and to forward copies of all old files concerning both Mr. M.and Ms. A. [ 83 ] On January 22, 2001, Det. Matthews met with Sgt. Schreiner to discuss the history of the relationship between Mr. M. and Ms. A. and Mr. M.’s complaint against the police. Det. Matthews stated in his police notes that M.M. and A.M.’s sexual assault allegations were not related to Ms.

A., and that the case rested on the credibility of the statements of the children, not of Ms. A. Det. Matthews did not view Ms. A. as a material witness in the sexual assault allegations. This mirrors the position Sgt. Schreiner took in a conversation with Mr. M. that occurred following the arrest. [ 84 ] On February 5, 2001, M.M. was examined by Dr. Marlene Lidkea at the University of Alberta Hospital. During an interview, M.M. stated that she had engaged in mutual fondling and watched pornographic movies with Mr.

M., and that she had run away from his home approximately six times during the two years that she lived with him. M.M. also stated she had seen a physician because of pain in her vagina caused by what her father was doing, but she was too frightened at the time to tell this physician the cause. Ms. A. supported M.M.’s story, saying that M.M. had been crying out Mr. M.’s name and saying “don’t, it hurts” during the night. Ms.

A.’s account finds support in the Confidential Psychological Brief prepared by Crossroads Family Service. [ 85 ] Physical examination of M.M. revealed no marks, lesions or scars that would indicate abuse. However, genital examination revealed narrowing and blunting of the edges of the hymen and a wider-than-normal vaginal opening. This evidence is consistent with the allegations of touching and digital vaginal manipulation in Det. Matthews’ report. (

f) Steps Following the Commencement of this Action [ 86 ] Investigator’s Notes compiled after the Police Defendants were served with this lawsuit reveal that on June 8, 2001, Detectives Spinks, Pebbles, and Matthews reviewed the videotaped interview of M.M. using the Dr. Yuille Credibility Assessment Model. All three detectives came to the conclusion that M.M. was being truthful and that she was “quite credible” on at least 10 of the credibility criteria. [ 87 ] Later the same day, members of the EPS reviewed the file with Chief Crown Rosborough, feeling they had all the necessary ingredients to proceed.

However, after Mr. Rosborough referred the file to Ms. Diane Hollinshead, who specialized in child abuse cases, she requested that the police take additional steps, such as obtaining a KGB statement, re-interviewing M.M., and polygraphing A.M., before she could proceed. The EPS never pursued these.

Positions of the Parties 1. Trespass (

a) Plaintiffs’ Position [ 88 ] The Plaintiffs submit that the Police Defendants’ entry into the Plaintiffs’ home was a trespass unless: (

a) the Police Defendants had express or implied consent to enter the residence, or (

b) the Police Defendants had lawful authority to do so under s. 495 of the Criminal Code . [ 89 ] They submit that Ms. K. gave no physical or verbal indication that she had consented to the entry when she opened the door; that she had no time to even consider giving consent. The Plaintiffs submit that I should accept her evidence over Det. Matthews’, because Det. Matthews was uncertain as to what happened when he knocked on the door and because this event was both traumatic and significant in Ms. K.’s life. (

b) Police Defendants’ Position [ 90 ] The Police Defendants submit that Mr. M. was arrested at the entrance of his house. They concede that any finding of liability for trespass turns on a finding of wrongful arrest, discussed more fully below. If trespass is found on the facts, the Police Defendants argue that I should not award damages to each Plaintiff because trespass is a single act and damages flowing from a single act must be awarded collectively. 2. Wrongful Arrest (

a) Plaintiffs’ Position [ 91 ] The Plaintiffs argue that the Police Defendants lacked reasonable and probable grounds to arrest Mr. M. [ 92 ] They submit that the concerns that had led Det. Matthews to arrest Mr. M. had no basis in fact. They argue that the following inconsistencies in the complainants’ evidence and the police conduct reveal that Det. Matthews’ expressed concerns were unfounded: ∙ M.M. and A.M. complained that they had been sexually assaulted and that they feared for their safety on December 5, 2000.

The delay of over one month between the complaints and the arrest is inconsistent with concern for their safety. ∙ Although Det. Matthews stated he feared Mr. M. had a firearm in his house, the police never searched the house during the arrest. They asked Ms. K. if she knew of any firearms at her house, and relied on her negative reply. ∙ Det. Matthews stated that he feared that Mr. M. might try to flee based on his defection from Somalia in 1987. This ignored the

fact that Mr. M.’s defection occurred almost 15 years earlier, that he was a Canadian citizen, and that he had family in Edmonton. ∙ The Crown reversed their position on Mr. M.’s bail. [93] The Plaintiffs argue that the information in the police files should have led a reasonable officer to doubt Mr.

M. was guilty.The Plaintiffs further submit that the fact that the police did not have an arrest warrant, despite having ample time and opportunity toobtain it, warrants an inference that the Police Defendants knew they did not have reasonable grounds to make the arrest or obtain anarrest warrant. [94] The Plaintiffs rely on R v Storrey, (SCC), [1990] 1 SCR 241, and R v Feeney, (SCC),[1997] 2 SCR 13, for the proposition that the absence of reasonable and probable grounds makes the intrusion into the Plaintiffs’ homeand the resulting arrest unlawful. [95] The Plaintiffs point to a number of indicators that they submit cast doubt on the existence of reasonable and probable groundsat the time of the arrest: ∙ there was a history of Ms.

A. making false allegations against Mr. M. which Det. Matthews never explored; ∙ there was a history of M.M. making false allegations against Mr. M. which Det. Matthews never explored; ∙ other EPS officers raised credibility concerns in the historical EPS files; ∙ there were discrepancies in A.M.’s statements; ∙ there were discrepancies between Ms. A’s allegations and A.M.’s allegations; ∙ there were numerous prior inconsistent statements made by M.M. to persons in authority. [96] Despite these, Det.

Matthews failed to take any steps to clarify the inconsistencies in the evidence or to challenge thewitnesses’ credibility. The Plaintiffs rely on Klein v Seiferling (1999), (SK KB), 179 Sask R 161, [1999] 10 WWR554 (QB), to argue that Det. Matthews acted unreasonably by failing to reassess the evidence he had in these circumstances. They alsorely on Dix v. Canada (Attorney General), 2002 ABQB 580, 315 AR 1, for the proposition that the police had a duty to explore thereliability of the information they received from M.M., A.M. , and Ms. A. before arresting Mr. M. The evidence Det.

Matthews hadshould have raised a number of red flags and led the police to reassess the reliability of that evidence. [97] With respect to arrest inside their home, the Plaintiffs submit that they gave no consent to enter and that there were no exigentcircumstances justifying a warrantless arrest under s. 529.3 of the Criminal Code. (

b) Police Defendants’ Position [98] The Police Defendants rely on Storrey to argue that they need not determine whether an accused will ultimately be convictedin order to carry out an arrest. That is the role of the Crown and the courts, not the police. This defeats the Plaintiffs’ argument that “theprosecutors required more investigation than Detective Matthews had done before arresting Mr. M.” All that is required to lawfully arresta person without a warrant is for the police to have reasonable and probable grounds to believe that the suspect has committed a criminaloffence.

[ 99 ] The Police Defendants agree that the test is whether the police had reasonable and probable grounds to arrest Mr. M. They argue that Det. Matthews had both. He had subjective grounds after interviewing witnesses and reviewing the historical files. The objective grounds were supplied by his discussion with Det. Pagee and S-Sgt. Eastcott, who supported Det. Matthews’ grounds for arrest. [ 100 ] The Defendants submit that Det. Matthews had the following specific grounds for arrest: (

i) the complaint by M.M.; (ii) the complaint by A.M.; (iii) the conversation with Ms. Driediger; (iv) the conversation with Ms. Connolly; and (

v) the review of the historic police files. [ 101 ] An interview was not conducted with Ms. A., consistent with Det. Matthews’ assertion that he did not consider her to be a relevant witness. [ 102 ] With respect to warrantless arrest inside a dwelling house, the Police Defendants concede that such arrest prima facie interferes with a person’s liberty and will be lawful only if: (

i) exigent circumstances exist; or (ii) entrance to the dwelling house is consented to. [ 103 ] The Police Defendants submit that the events following the entrance into the home, once the purpose of the entry is known, are highly significant in determining whether consent was given. They argue that, where an individual assists the police in achieving the objective for the entry, there is an argument for implied consent. [ 104 ] In the alternative, the Police Defendants submit that there were exigent circumstances permitting warrantless entry into the Plaintiffs’ house. They argue that, when Det.

Matthews learned of the various safety concerns, including Mr. M.’s military background and the possibility of Mr. M. having weapons, he considered it necessary to carry out the arrest quickly to avoid any potential harm to the public. 3. False Imprisonment [ 105 ] Both parties agree that any finding of liability for false imprisonment turns on a finding of unlawful arrest. 4. Negligent Investigation

(

a) Plaintiffs’ Position (

i) Submissions on Law [106] The Plaintiffs submit that, in order to meet the reasonable police officer standard, the Defendants must meet the subjective andobjective tests in forming a decision that reasonable and probable grounds existed to justify Mr.

M.’s arrest. [107] The Plaintiffs cite Andre c Quebec, [1999] JQ no 4213, [2000] CCS No. 3246 (Que SC); [rev’d [2003] JQ no 1374 (CA) as tothe prosecutor and the AG, and aff’d as against the police officer and the City], and DJ v K.C. (2004), (ON SC), 238 DLR (4th) 126, 130 ACWS (3d) 878 (Sup Ct J), as examples of circumstances in which the police were found guilty of negligentinvestigation. They argue that those circumstances are similar to the case at bar. The Plaintiffs point out that the facts in Andre alsoinvolved a complaint by the accused’s daughter about an historical sexual assault.

In that case, the Court held that a reasonable policeofficer would have checked the accuracy and credibility of the daughter’s statements. [108] The Plaintiffs also point to the repeated statements in DJ that numerous inconsistencies in the evidence of different witnessesshould raise red flags in the mind of a reasonable investigative officer. The Plaintiffs submit that the Police Defendants were required toexamine both inculpatory and exculpatory elements of evidence, weigh them, and remain objective with respect to whether anyreasonable and probable grounds existed to arrest Mr.

M. (ii) Submissions on Facts and Credibility [109] The Plaintiffs submit that, by relying on the accusations of M.M. and A.M., by failing to investigate their prior inconsistentstatements, and by accepting only inculpatory evidence, the Police Defendants breached their duty of care and are guilty of negligentinvestigation. [110] The Plaintiffs point to a number of discrepancies between the allegations of sexual assault and statements made over time byMs. A. , M.M., and A.M., which ought to have raised questions about their credibility. The Plaintiffs identify the following: ∙ Ms. A. told Det.

Matthews that the 1997 sexual assault charges against Mr. M. were stayed because she failed to attend Court, butthe police files indicate that the Crown did not proceed with the charges. ∙ On another occasion, in a written statement made in 1997, Ms. A. said that she never laid any charges against Mr. M. ∙ Ms. A. told Det. Matthews that A.M. told her that Mr. M. tried to have sexual intercourse with her.

A.M. never made allegationsof actual intercourse in either her written statement or the interview. ∙ A.M.’s written statement following her interview in December 2000 had an obvious discrepancy as to the duration of the allegedsexual assaults: two weeks in one place, three weeks in the other. ∙ In September 1998, M.M. alleged that Mr. M. was mean and that he had beat her. Minutes later, she recanted the allegation andstated that Mr. M. did not beat her. [111] The Plaintiffs submit that Det.

Matthews breached the standard of a reasonable police officer because he failed to explore thesediscrepancies prior to arresting Mr. M. In addition, they submit that this failure was evidence of Det. Matthews’ disregard for evidenceinconsistent with Mr. M.’s guilt.

[112] The Plaintiffs rely on Det. Matthews’ admissions at discoveries as proof of the conduct expected of a reasonable police officer.Det. Matthews stated that: ∙ he would explore any inaccuracies if it was apparent that a witness had provided such in his or her statement; ∙ it was important that his R2 Report be accurate; and ∙ credibility in sexual assault cases was important. [113] The Plaintiffs further submit that Det. Matthews unreasonably chose to believe the accusers, to the point that he had moreconfidence in them than in his colleagues, several of whom had stated that Ms.

A. had apparently made false allegations. Det. Matthewsadmitted at trial that he had never asked the accusers about the inconsistent statements in the historical files, and he had not contactedany of the investigating officers whose reports were in the files. [114] In addition, the Plaintiffs identify the following inconsistencies in Det. Matthews’ evidence at trial: ∙ he was initially certain that he had asked both M.M. and A.M. why they had delayed making the allegations. When confrontedwith the evidence he gave during questioning, Det.

Matthews acknowledged that he had never asked A.M., and was unsure if he had everasked M.M.; ∙ he asserted that Mr. M. had given a letter to Ms. A. authorizing her to take M.M. out of Alberta. The police file does not supportthis statement; to the contrary, it suggests that Ms. A. forged the authorization letter; and ∙ he said that A.M. “had to” get police assistance to retrieve some property from Mr. M.’s home. The police file indicates A.M.merely “wanted” police assistance. (

b) Police Defendants’ Position (

i) Submissions on Law [115] The Police Defendants rely on Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 , [2007] 3SCR 129, for the proposition that it is reasonable for a police officer to investigate in the absence of overwhelming evidence, and thatpolice officers are entitled to investigate on whatever basis they wish, provided they act reasonably. They summarize the standard of careas follows: (

i) the standard of care is that of a reasonable police officer in all the circumstances; (ii) the standard of care must be informed by the prevailing state of knowledge at the time of the incident, which may in turn beinformed by police practices; and (iii) the standard of care allows for room to exercise professional discretion.

[ 116 ] The Police Defendants submit that the Plaintiffs (who bear the onus to show a breach of the requisite standard of care) failed to adduce expert evidence as to the standard of investigation of an alleged sexual assault of a child in 2000 and 2001. Furthermore, the Plaintiffs failed to lead any direct evidence about what a reasonable police officer would do in like circumstances at the time. (ii) Submissions on Facts and Credibility [ 117 ] The Police Defendants submit that Det. Matthews’ conduct was reasonable in the circumstances. Upon being assigned to investigate M.M.’s and A.M.’s complaints, Det.

Matthews did the necessary searches on M.M., A.M., Mr. M., and Ms. A., and he reviewed the historical police files. Det. Matthews assessed the type of investigation carried out on the prior EPS files and concluded that none of them involved an investigation into sexual assault allegations by M.M. and A.M. [ 118 ] Det. Matthews also interviewed the complainants as soon as possible after he was assigned to the investigation. During the interviews, Det. Matthews read the complainants’ non-verbal cues, which he had been trained to recognize and which he was alert to from experience.

The interviews were also recorded to allow for independent review. Marcia McCoy, a social worker, monitored the interview as it progressed. [ 119 ] The Police Defendants submit that Det. Matthews recognized the need to be cautious in the investigation once he reviewed the historical files. As a result, Det. Matthews conducted further investigation by interviewing Ms. Driediger and Ms. Connolly. Ms. Driediger was a child therapist who had received the initial disclosure from M.M. During the interview, Ms. Driediger referred to Ms. Connolly, and Det. Matthews arranged for an interview with Ms.

Connolly. [ 120 ] At that point in the investigation, Det. Matthews decided that he ought to speak with Mr. M. to get his side of the story. Mr. M. refused to come to the EPS headquarters. After a discussion with Det. Pagee and S.-Sgt. Eastcott, Det. Matthews concluded that it was necessary to arrest Mr. M. to continue the investigation. The Police Defendants submit that, as a result of interviewing the complainants, the child therapist, and Ms. A.’s lawyer, and reviewing the EPS files, Det. Matthews had a reasonable concern for the safety of the complainants and Ms. A. As a result, Det.

Matthews determined that it was necessary to arrest Mr. M. quickly. [ 121 ] The Police Defendants further submit that, once Det. Matthews determined that Mr. M. would not provide specific information to deny or explain the allegations, he concluded that there were reasonable and probable grounds to lay charges against Mr. M. [ 122 ] Based on this, the Police Defendants argue that Det. Matthews had recognized the dysfunctional and historical issues arising within the M./A. family, alerting him to treat the investigation with caution, which he did throughout his carriage of the investigation.

According to the testimony of Det. Matthews and Det. Pagee, the delay between receiving the complaints in December 2000 and arresting Mr. M. in January 2001 was not unusual, having regard to the time of the year and the case load at the time. (iii) Response to the Plaintiffs’ Argument [ 123 ] The Police Defendants argue that the Plaintiffs misinterpret the nature of an investigation into child abuse allegations. The Plaintiffs’ submissions repeatedly emphasize the dysfunctional nature of the relationship between Mr. M. and Ms. A.

The Police Defendants submit that the Plaintiffs fail to recognize that the impugned investigation arose as a result of a Child Welfare referral which resulted from a disclosure by M.M. to Ms. Driediger, and that Ms. A. was a non-material witness. The unproven historical accusations by Ms. A. could not foreclose the police investigation, as the allegations stemmed from M.M. and A.M. [ 124 ] With respect to discrepancies in M.M. and A.M.’s allegations, the Defendants submit that they are either irrelevant or insignificant.

M.M.’s alleged discrepancies all relate to previous incidents and have limited relevance to the alleged sexual assault under investigation. A.M.’s alleged discrepancy is an error of one week in describing the duration of sexual assaults 27 months after the incidents took place. Discrepancies in Ms. A.’s statements are of limited importance as she was a non-material witness. [ 125 ] The Police Defendants submit that the 27 month delay between the alleged offences and the making of the allegations is not a

major issue, as neither Det. Matthews nor Det. Pagee raised this delay as a concern, based on their experience with similar allegations onother files. [126] Turning to the “flags” put by Sgt. Schreiner on Ms. A.’s address, the Police Defendants submit that these “flags” would requirethe police to exercise caution in relation to any future allegations by Ms. A., not M.M. or A.M. This is consistent with the language ofSgt. Schreiner’s letter to Mr. M. The Defendants submit that the complaints by M.M. and A.M. were outside the scope of the review thatwould be required as a result of Sgt. Schreiner “flagging” Ms. A.’s address. 5. Malicious Prosecution (

a) Plaintiffs’ Position [127] The Plaintiffs submit that the Police Defendants are guilty of malicious prosecution. They rely on the authority in Dix for theproposition that prosecution of Mr. M. in the face of evidence that he is probably not guilty permits an inference of malice. They citeOniel v Marks (2001), (ON CA), 80 CRR (2d) 90, 141 OAC 201 (Ont CA), as authority that malice has a widemeaning and includes any improper purpose.

Evidence that a prosecution was continued when available evidence of the unreliability of acomplainant’s information has been deliberately or recklessly ignored constitutes evidence from which an improper purpose may beinferred. Moreover, prosecution in the face of lack of reasonable and probable cause to continue the prosecution likewise permits aninference of malice. [128] The Plaintiffs submit that Det. Matthews deliberately chose to disregard evidence that was inconsistent with Mr. M.’s guilt by: ∙ failing to include in his R2 Report that Ms.

K. stated that there were no guns at their home and that she did not fear for her safety; ∙ interrupting Mr. M. whenever he tried to speak of the family history during the interrogation; ∙ stating that he did not know that M.M. had previously cried “rape” when Mr. M. tried to take her to school, despite having adocument saying that on a police file; ∙ stating that Mr. M. did not deny the allegations, despite his repeated protestations of innocence; ∙ noting that Mr. M. had been very confrontational, manipulative and uncooperative, when the police file made repeated commentsabout Mr.

M.’s cooperation on previous matters; and ∙ telling Mr. M. that he could tell he was guilty by his “body language”. [129] The Plaintiffs argue that Det. Matthews’ decision to charge was apparently predicated on Mr. M.’s refusal to give a confessionto the alleged sexual assaults. They submit that it was Det. Matthews’ desire to implicate Mr. M. as a dangerous, evil, and uncooperativeperson, with something to hide. [130] Finally, the Plaintiffs submit that, even if the Police Defendants had reasonable grounds for charging Mr.

M., they actedmaliciously in persisting with the prosecution after discovering that there was no basis for it. (

b) Police Defendants’ Position

[ 131 ] The Police Defendants concede that they commenced the criminal proceedings and that those proceedings were terminated. However, they deny the absence of reasonable and probable grounds and the existence of malice. [ 132 ] The Police Defendants rely on the Supreme Court of Canada decision in Miazga v Kvello Estate , 2009 SCC 51 , which held that malice cannot be supported where proceedings are commenced on the basis of an honest, albeit mistaken, professional belief that reasonable and probable cause did exist. They argue that Det.

Matthews proceeded on the basis of an honest belief and that his motives were bona fide. None of the Police Defendants gained an advantage from laying the charges against Mr. M. [ 133 ] They further submit that Det. Matthews’ decision to lay sexual assault charges was not made during the interview. Rather, he laid charges with direction provided by the Crown Prosecutor’s office. The Police Defendants argue that the ultimate decision to charge Mr.

M. with sexual assault was not based solely on his body language, but also on the fact that he was not forthcoming or truthful during the police interview on January 11, 2001. [ 134 ] The Police Defendants also submit that the Plaintiffs place undue emphasis on the R-2 Report. The R-2 Report provides a history of the investigation to the Crown and is accompanied by all other material information.

It is the Crown’s prerogative to decide whether and how to prosecute. [ 135 ] The Police Defendants submit that the Plaintiffs failed to adduce any evidence to support an allegation of malicious prosecution on their part. [ 136 ] Finally, they submit that their actions after May 22, 2001, cannot be characterized as an attempt to “reactivate the charges.” The meetings were solely concerned with the type of further evidence that would be necessary to revisit the charges. There was no further investigation done on the file. 6. Quantum of Damages (

a) Plaintiffs’ Position (

i) General [ 137 ] The Plaintiffs submit that I should award damages commensurate with the police misconduct. However, they also urge me to take the following considerations into account: ∙ to give a nominal award of damages for police misconduct gives license to continue that misconduct; ∙ an award of damages would send a denunciation message to the police for their misconduct; and ∙ an award of damages would give confidence to the public that the police are acting in accordance with the law. (ii) Trespass [ 138 ] The Plaintiffs seek damages of $20,000-$25,000 each. They cite the following elements of police conduct as justification for such an award:

∙ the Police Defendants invaded the Plaintiffs’ residence without informing the Plaintiffs why they were there; ∙ the Police Defendants disregarded the Plaintiffs’ rights to privacy in their own home; ∙ the Police Defendants had time to get an arrest warrant, but chose not to do so; ∙ the Police Defendants had no regard for the traumatic effect of their actions on Mr. M. and his family; and ∙ the Police Defendants intruded without consent, express or implied. (iii) False Arrest and False Imprisonment [ 139 ] The Plaintiffs point to the following aggravating elements of the police conduct during the arrest: ∙ Mr.

M. suffered the indignity of being labelled as a “sex offender” and appeared in public court; ∙ Mr. M. was accused of the most heinous offence that any man can be accused of; and ∙ Mr. M. sustained severe trauma and indignity. [ 140 ] The Plaintiffs seek damages “commensurate with the Chopra decision”, in which the plaintiff was awarded $25,000 for false imprisonment and battery. The Plaintiffs point to the following differences between the case at bar and Chopra v T Eaton Co. Ltd. , 1999 ABQB 201 , 70 Alta LR (3d) 90: ∙ Mr. Chopra sustained minor injuries while Mr. M. did not; ∙ Mr.

Chopra was not dealing with police but, rather, store security; and ∙ Mr. Chopra was wrongfully detained for 4 hours while Mr. M. was in custody for 36 hours. (iv) Negligent Investigation [ 141 ] The Plaintiffs rely heavily on Andre for guidance as to the quantum of damages for negligent investigation. They concede that the plaintiff in Andre had a higher public profile than Mr. M. However, they submit that Andre is similar on its facts in practically every other respect. [ 142 ] In addition to Andre , the Plaintiffs rely on D.J. and Trudgian v Bosche , 2003 SKQB 168 , 235 Sask R 16.

They submit that Trudgian is “remarkably similar” to the case at bar because the investigative constable in Trudgian likewise failed to investigate other sources of information which would have shown that reasonable and probable grounds for an arrest did not exist. The Court awarded $50,000 in damages to the Plaintiff in Trudgian . That amount was reduced by the Court of Appeal to $30,000.00 ( Trudgian v Wood , 2005 SKCA 13 , 249 D.L.R. (4th) 674).

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v) Punitive Damages [ 143 ] The Plaintiffs submit that the conduct of Det. Matthews warrants an award of $15,000 in punitive damages. They argue that Det. Matthews’ conduct was high-handed, malicious, arbitrary, or highly reprehensible and that it departed to a marked degree from ordinary standards of decent behaviour. In particular, they point out that Det. Matthews: ∙ selectively disregarded evidence that should have led to a doubt as to the culpability of Mr. M.; ∙ assessed Mr.

M. as guilty based on his “body language” in the interview, but acknowledged at trial that interpreting body language may be 100% incorrect; ∙ disregarded the fact that false allegations were made, which was confirmed by other police witnesses; and ∙ sought to reactivate the charges against Mr. M. notwithstanding that the Crown Prosecutor had already decided that the charges would be stayed. (vi) Amount Claimed [ 144 ] Based on these authorities, the Plaintiffs claim the following damages: ∙ $25,000 each to Ms. K. and Mr. M. for trespass; ∙ $75,000 (inclusive) to Mr.

M. for false arrest, false imprisonment, negligent investigation, malicious prosecution, and punitive damages; and ∙ $500 in special damages (legal costs) to Mr. M. (

b) Police Defendants’ Position (

i) Mr. M.’s Damages [ 145 ] The Police Defendants rely on a number of cases to support their position regarding damages. The following table summarizes the cases the Police Defendants rely on: Case Name

Summary Award

AM v Czerwonka,2007 ABQB 313. Police attended at a house with a full tactical team toapprehend a child. Police pushed the male plaintiff andunnecessarily handcuffed him. $6,500/$5,000 to male/femaleplaintiffs fortrespass andassault Daniluck v Canada(RCMP), [1998]BCJ No. 746 (SC) An officer pushed past the plaintiff and entered the home,conducted a brief search, and left. $2,000 inaggravateddamages Collins v BrantfordPolice ServicesBoard, [1999] OJNo 1814 (Ont SupCt J); varied (ONCA), 204 DLR (4th)660; 151 OAC 152(Ont CA).

The plaintiff was arrested without warrant at his home.After the arrest, the plaintiff’s mental health suffered as hewas in custody for over 24 hours. The police said they didnot get a warrant because they believed that, if otherofficers did a normal arrest, it could harm the plaintiff’smental health. $6,000 forwarrantlessarrest; varied byCA to $3,000.00 Berketa v NiagaraRegional PoliceServices Board(2008), 163 ACWS(3d) 842 (Ont SupCt J). The plaintiff was a female senior of small stature. Anofficer entered the plaintiff’s residence without invitationor warrant.

The officer wanted to arrest the plaintiffbecause she refused to return a neighbour’s rocket that fellto her yard. The officer used force in arresting her, causingbruising and cuts on her hands, and anxiety anddepression. $25,000compensatorydamages forinjuries Dennis vVancouver (City),2000 BCPC 82. Officers entered the plaintiff’s residence without consentor warrant. The plaintiff was recently released from apsychiatric hospital. The officers instructed a dog to biteand hold the plaintiff. $5,000 forinjuries Simon v TorontoPolice ServicesBoard, [2002] OJNo 5933 (Ont. SupCt

J) Police came to the plaintiff’s residence without a warranton two separate occasions and arrested him both times forbreach of recognizance. There was no breach and therewere no reasonable grounds to suspect the plaintiff hadbreached a recognizance. $5,000 for lackof warrant $20,000 total forfalse arrest andimprison. MacCormack vHalifax (City)Police Department,[1999] NSJ No 463(SC) Police arrested the plaintiff without warrant for anaggravated sexual assault that had occurred in theplaintiff’s neighbourhood. $12,000 for falsearrest andimprisonment [146] The Police Defendants argue that Mr. M.’s damages should fall in the low

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