Can v. Calgary Police Service, 2012 ABQB 340

Court of Queen ’ s Bench of Alberta Citation: Can v. Calgary Police Service, 2012 ABQB 340 Date: 20120523 Docket: 0401 16314 Registry: Calgary Between: Jim Can Plaintiff - and - Jack Beaton acting as Chief of Police for the Calgary Police Service, Attorney General of Alberta, Her Majesty the Queen in Right of Alberta, Alberta Minister of Justice, Douglas Andrus, John Manahan, John Brydges, John Miller, John Doe, Jim Doe and Emmanuel (Mac) Vomberg Defendants _______________________________________________________ Memorandum of Decision of Jodi L.

Mason, Master in Chambers _______________________________________________________ Introduction [ 1 ] On March 11, 2003, the plaintiff, Jim Can was arrested and charged with extortion and forcible confinement. It was subsequently learned that the complainant, Anthony Sarvucci, was a convicted perjurer. The Crown stayed the proceedings against Mr.

Can on this basis. [ 2 ] Mr. Can then commenced this action against the Calgary Police Service and its members, along with the Attorney General of Alberta and Crown prosecutors. He alleged malicious prosecution, wrongful arrest/false imprisonment, assault and battery, negligent investigation, intentional infliction of emotional distress, and breach of the Charter of Rights and Freedoms . [ 3 ] Mr. Can filed discontinuances of action against several of the defendants. Only the Calgary Police Service and its individual members remain as defendants to the action. Mr.

Can has further indicated he will not be proceeding with the malicious prosecution and assault and battery claims [1] . [ 4 ] Whether there were reasonable and probable grounds for Mr. Can’s arrest is central to the remaining claims. The defendants apply to summarily dismiss these claims on the basis that there were in fact reasonable and probable grounds for Mr. Can’s arrest. Mr. Can submits that there is a genuine issue for trial in this regard. [ 5 ] For the reasons that follow, the defendants’ application for

summary dismissal is granted. There were reasonable and probable grounds for Mr. Can’s arrest. There are no genuine issues for trial. The tests for

summary judgment [ 6 ] Rule 7.3 of the Alberta Rules of Court provides that a party may apply for

summary judgment in respect of all or part of a claim, on the ground that there is no merit to a claim or part of it. [ 7 ] A party bringing a motion for

summary judgment bears the legal onus of showing no genuine issue for trial: Murphy Oil Co. v. Predator Corp. , 2006 ABCA 69 , 384 A.R. 251 at paragraph 27 . [ 8 ] The Court of Appeal confirmed in Tottrup v. Clearwater (Municipal District No. 99) , 2006 ABCA 380 at paragraph 10 that applications for

summary judgment or dismissal can take many forms. [ 9 ] The Court explained that in some cases, the application is simply based on the factual merits of the case and the applicant can prove its case on the facts without a trial. In this type of

summary judgment application, the test is as stated in Pioneer Exploration Inc. (Trustee of) v. Euro-Am Pacific Enterprises Ltd. , 2003 ABCA 298 , 339 A.R. 165. An analogous approach is used where the defendant applies for

summary dismissal. It is in the context of this type of

summary judgment application that the cases sometimes say it must be “plain and obvious” or “clear” or “beyond real doubt” that the action should be summarily disposed of. If the record raises genuine factual or credibility issues, for example if there is conflicting evidence, then

summary judgment generally cannot be granted. [ 10 ] The Court further observed at paragraph 11 that there are other types of

summary judgment applications. In some cases the facts are clear and undisputed. The ultimate outcome of the case may depend on the

interpretation of some statute or document, or may depend on some issue of law that arises from undisputed facts. In such cases, the test for

summary judgment is not whether the issue of law is “beyond doubt”, but whether the issue of law can fairly be decided on the record before the court. If the legal issue is unsettled, complex or intertwined with the facts, it is sometimes necessary to have a full trial to provide a proper foundation for the decision. In other cases it is possible to decide the question of law summarily. [ 11 ] Trials are primarily to determine questions of fact: Tottrup v. Clearwater (Municipal District No. 99) at paragraph 12 ; Dow v. Shell , 2010 ABCA 126 , 477 A.R.112 at paragraph 15 . In order to demonstrate that there is a “genuine issue for trial” the party resisting

summary judgment should be able to articulate what facts are in dispute that could be resolved at trial. Those could be the background facts of the case, or facts that are needed to provide context to the issues of law: Dow v. Shell at paragraph 15 ; Tottrup v. Clearwater (Municipal District No. 99) at paragraph 11 .

[12]

Summary judgment plays a particularly important role in actions brought against prosecutorial entities: Wong v. TorontoPolice Services Board, (ON SC), 2009 CarswellOnt 7412 (S.C.J.) at paragraph 49. The comments of the SupremeCourt of Canada in Nelles v. Ontario (SCC), [1989], 2 S.C.R. 170 encourage lower courts confronted with factuallyladen claims of negligent investigation, false arrest, false imprisonment and malicious prosecution to not “shirk from their duty tocarefully examine the factual record and the case as pleaded” to determine whether

summary judgment should be granted: Moak v.Haggerty, (ON SC), 2008 CarswellOnt 7 (S.C.J.) at paragraph 8. [13] Here, the parties agree that the issue of reasonable and probable grounds for Mr. Can’s arrest is central to the determination ofhis claims. As discussed further below, this determination includes subjective and objective elements. [14] The subjective existence of reasonable and probable grounds for arrest is a question of fact. The objective existence ofreasonable and probable grounds for arrest is a question of law: Miazga v.

Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 atparagraph 74, citing Nelles v. Ontario; Dix v. Attorney General, 2002 ABQB 580, 315 A.R. 1 at paragraph 354. [15] In the context of this application, the defendants must establish that there is no genuine issue for trial as to whether the policehad reasonable and probable grounds to arrest and charge Mr. Can. Reasonable and probable grounds Legal principles [16] In R v.

Storrey, (SCC), [1990] 1 S.C.R. 241, the Supreme Court of Canada reasoned that the balancebetween society’s need to be protected from crime and the individual’s right to liberty is resolved by requiring the police to havereasonable and probable grounds on which to base the arrest. The Court described the requirement as “very limited” (at page 250), citingwith approval from Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.). [17] The Court went on to confirm at pages 250-255 that an arresting officer must subjectively believe he has reasonable andprobable grounds on which to base an arrest.

Those grounds must, in addition, be justifiable from an objective point of view; areasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable groundsfor the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically,they are not required to establish a prima facie case for conviction before making the arrest. [18] Accordingly, in considering the spectrum of applicable tests in the criminal process (for arrest - reasonable and probablegrounds; for prosecution - reasonable prospect of conviction; preliminary hearing - evidence that if believed, could lead to conviction attrial; and trial - proof beyond a reasonable doubt), a police officer exercises his or her discretion at the lowest end: P.H.E. v. Ottawa-Carleton (Region) Police Service, [2003] O.J.

No. 3512 (S.C.J.) at paragraph 54. [19] A police officer is not required to exhaust all avenues of investigation prior to making an arrest: see for example, P.H.E. v.Ottawa-Carleton (Region) Police Service at paragraph 55. Nor is a police officer required to obtain the accused’s version of events orotherwise establish that the accused has no valid defence before being able to determine that there are reasonable and probable grounds:Wong v.

Toronto Police Services Board at paragraph 59. [20] The determination as to whether reasonable and probable grounds exist is based upon an analysis of the circumstancesapparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later: see for example, Wong v.Toronto Police Services Board, at paragraph 61. Events leading up to arresting and charging Mr. Can [21] On March 10, 2003, at approximately 10:00 p.m., the defendant, Detective Douglas Andrus (“Det. Andrus”) received a call

from his Staff Sergeant regarding a hostage taking. Det. Andrus and his partner, the defendant Detective John Brydges ("Det. Brydges") (together "the Detectives"), interviewed the alleged victim, Mr. Sarvucci. Interview with Mr. Sarvucci [ 22 ] Mr. Sarvucci told the Detectives that earlier that day he went to a warehouse adjacent to a strip club at the invitation of Philip Oakes, under the ruse of recovering some money owed to him. He told the Detectives that upon arrival at the warehouse, he was held against his will, he was physically assaulted, and that his life and those of his family members were threatened.

He said several men were at the warehouse, including Mr. Can. [ 23 ] Mr. Sarvucci claimed that the incident resulted from an attempt by some of his business associates to recover monies that they thought he was responsible for losing as a result of his involvement with a stock promotion. He said Mr. Can was also involved in the promotion. He told the Detectives the following during the interview, among other things: On March 10, 2003, Mr. Sarvucci got a phone call asking him to meet at the back parking lot of a local strip club regarding an important matter. Mr.

Sarvucci went to the back parking lot as directed, and was told to go inside. He went to the back door of the warehouse and was shoved inside. Mr. Sarvucci saw Mr. Can walk by and also saw a Hells Angel member standing inside. He was told to come to the back, where he noted five Pakistani or Middle Eastern males standing off to one side. Also present were Mike Habib and Sam Habib. One of the men told Mr. Sarvucci that he owed them money. One of them said that Mr. Sarvucci had sunk his company. Mr. Sarvucci eventually realized they were referring to the stock promotion he had been involved in with Mr.

Can and others. They told him he wasn't leaving until they got their money. Mr. Sarvucci was told that he owed over $1 million. When Mr. Sarvucci tried to explain that he did not owe the money, Sam Habib came over, told him to "shut the f#ck up and show him respect." He then pulled out a gun and said that he was just going to shoot him now because they weren't getting anywhere with him. He cocked the gun, put it to Mr. Sarvucci's head and said, "give the word, I'll do it". Then Sam Habib hit Mr. Sarvucci on the side of his face. Mr.

Sarvucci was asked about his vehicles, property, jewelry, house, kids' college funds, and any other assets. They told him they had checked him out, and not to lie. He was again told that he was not leaving that day. Mr. Sarvucci called his friend, Steve Apolant, in New York and told him that he was in trouble with the stock promotion deal, and that he was being accused of owing $1 million. Mr. Sarvucci asked if Mr. Apolant could help him. Mr. Apolant indicated that it was too late in New York, and he couldn't do anything to help him until the following morning. Sam Habib grabbed the phone and told Mr.

Apolant that it was "too late" and hung up the phone. Mr. Sarvucci sat down at a table and was again hit by the same man. They continued to tell Mr. Sarvucci that he owed the money and that he was not leaving that day. The Hell's Angels member told Mr. Sarvucci that the last thing Mr. Sarvucci wanted to do was go to the cops and that, if he did, his whole family would be dead. He proceeded to list off all the names of his family members. The men continued to ask Mr. Sarvucci what he could give them and what he had. Mr.

Sarvucci eventually told them that he had a Rolex watch and a Harley Davidson, that his wife had a diamond ring, and that he had $300 in the bank. This went on from 2:30 p.m. to almost 5:00 p.m. Sam Habib eventually took Mr. Sarvucci's keys to his truck and his wallet. They told him that he would have to spend the night

with them. They told Mr. Sarvucci that they had people at his house, and could "pop" his wife and kids. Sam Habib eventually said that if they kept Mr. Sarvucci all night, his wife would call the cops. They continued to talk amongst themselves, and Sam Habib finally told Mr. Sarvucci that some of them were going to take him home to take his Harley Davidson bike and his Rolex watch, that Mr. Sarvucci would spend the night at his own house, but that he couldn't make any phone calls. Then, the following morning, Mr. Sarvucci was to meet them to transfer certain stocks that Mr. Sarvucci owned to them.

They reiterated again that Mr. Sarvucci better not go to the police. They had previously told him that if he "did anything" they would kill his wife and kids right in front of him. They eventually took Mr. Sarvucci to the next warehouse, copied his driver's license, and went over the plan again for what Mr. Sarvucci was going to do, and what he was going to give them. Mr. Sarvucci drove home, accompanied by one of the men. At least two of the other men followed behind. Mr. Sarvucci convinced the man driving with him that he needed to catch up on a few phone calls.

He called his wife and was able to communicate to her that she should call the police and confirm that she had left the house. When they got to Mr. Sarvucci's home, while one of the men used the washroom, Mr. Sarvucci went downstairs, called the police on his cell phone, and ran out of the door and to a neighbour's house. Mr. Sarvucci was confident that Mr. Can was present at the warehouse "the whole time" telling the other men information. Mr. Sarvucci said that Mr. Can assisted the interrogators by providing information regularly, such as information about Mr.

Sarvucci's kids' names and his wife's name, which was used to threaten Mr. Sarvucci. Mr. Sarvucci did not say that Mr. Can hit him or interrogated him, nor did he say that Mr. Can accompanied him home. Interview with Paula Pearce [ 24 ] The Detectives then interviewed Mr. Sarvucci's wife, Paula Pearce, at 12:27 a.m. on March 11, 2003. During that interview, she seemed upset and told the Detectives the following about the events of March 10, 2003: She had received a phone call from Mr. Apolant telling her that her husband was in trouble regarding a stock deal Mr. Sarvucci had been involved in, and that Mr.

Apolant thought there were guys trying to "collect". She began calling Mr. Sarvuci's friends to determine what was happening and for help. One suggested she should call the police. At one point Mr. Sarvucci called her and he sounded "not right" and was saying things that did not make sense to her. She eventually asked her husband if he needed her to call the police and he said yes. She asked him if there was someone else in the truck and he said yes. She asked if he was okay and he said no. When she hung up with Mr. Sarvucci, she called the police. After she hung up with the police, Mr. Sarvucci called again.

She asked if the people he was with had guns and he said yes. She asked if there was more than one person and he said yes. She asked if there were people following him and he said yes. She said that she then went to the Esso station, where she met the police officers. [ 25 ] Following the interviews with Mr. Sarvucci and his wife, the Detectives took them to the warehouse. Mr. Sarvucci identified it as the building he said he had been held in.

[ 26 ] The Detectives then transported Mr. Sarvucci and his wife to their home, where they secured their residence, and then took them to a safe location outside the City of Calgary where they remained until March 25, 2003. Interview with Deborah Anne Godfrey [ 27 ] Prior to Mr. Can’s arrest, Det. Andrus reviewed a statement taken by another officer from Deborah Anne Godfrey, a neighbor of Mr. Sarvucci's, on March 10, 2003. [ 28 ] Ms. Godfrey stated that at approximately 6:20 p.m. on March 10, 2003 she saw a man come up her front steps and pause at the front door.

The gentleman knocked on the door, but did not wait for her to answer. He opened the door and came inside. He was talking on his cell phone at the time. She told him to get out, but he said people were after him and trying to extort money out of him. He handed her his cell phone and told her that he was talking to the police. She said she took the phone, said hello, and handed it back. She said that the man stood at her front door on her front mat until she offered him a chair in the living room. She said he locked the front door and was looking out the small window at the top of the front door.

He told her that he was her neighbor, and that his name was Anthony (Mr. Sarvucci's first name). He told her that he had been held at gun point at a warehouse for a couple of hours that afternoon. He said that he managed to call his wife and alert her that he was in trouble and to get out of the house with the kids and phone the police. She said that the man stayed on his cell phone with the 911 operator the entire duration of his stay in her house, and that she let him use her other phone to call a friend and tell him what was going on. Interview with Mary Anne Fornalik [ 29 ] Prior to Mr. Can's arrest, Det.

Andrus had also reviewed a statement from Mary Anne Fornalik, an employee at the warehouse where Mr. Sarvucci claimed he had been held. It states it was taken on March 11, 2003 at approximately 12:15 p.m., by the defendant, Staff Sergeant John Miller. Ms. Fornalik indicated that she personally knew several of the men Mr. Sarvucci indicated were at the warehouse, including Jim (the "Hummer owner"). She confirmed that "Jim" was present at the warehouse on March 10, 2003. She also confirmed that in the early afternoon some guys came to the warehouse, and went up into the back of the bay.

She stated that just before 5:00 p.m., Mike Habib asked her to make a photocopy of a driver's license, which she did, and then she put the copy in her desk. Mr. Can's first name is "Jim", and he owned a Hummer at the time. Interview with Mike Habib and Sam Habib [ 30 ] Two other men that Mr. Savucci said were involved, Mike Habib and Sam Habib, were interviewed by the defendant, Detective John Manahan. These men were known associates of the Hell’s Angels. Det. Manahan briefed Det. Andrus and Det. Brydges on these interviews prior to Mr. Can’s arrest.

He advised that both admitted that they had been present at the warehouse on March 10, 2003, and that Sam Habib admitted that he had "popped" Mr. Sarvucci in his mouth with his fist. [ 31 ] Based on the above interviews, statements and briefing, Det. Andrus believed that Mr. Sarvucci had been held hostage and was the victim of a violent extortion in which Mr. Can was implicated. Det. Andrus believed that Mr. Sarvucci and his family were in danger. [ 32 ] Det. Andrus decided that Mr. Can should be arrested.

He was arrested at his residence on March 11, 2003 at 3:30 p.m, and charged with extortion and forcible confinement at 6:30 p.m. [ 33 ] Upon arrest, and prior to being charged and further detained, Mr. Can was interviewed. He initially denied having been at the warehouse and said that he was unaware of any meeting regarding money. He denied speaking to Mike Habib regarding Mr. Sarvucci, or supplying any information about Mr. Sarvucci’s assets or family. He then admitted he had been present at the warehouse, but denied having participated in any extortion.

Is there a genuine issue for trial as to whether the police had reasonable and probable grounds to arrest Mr. Can?

Subjective element [34] Prior to arresting Mr. Can, Det. Andrus believed, and still believes, that Mr. Can was present and a participant in the extortionof Mr. Sarvucci. The subjective element of the standard for reasonable and probable grounds for arrest is met. There is no genuine issuefor trial in this regard. Objective element [35] As noted, the objective presence of reasonable and probable grounds is a question of law. [36] The defendants submit the following evidence demonstrates that the Detectives’ subjective belief was reasonably held: (

a) Mr. Sarvucci identified Mr. Can as an active participant in the extortion and gave a detailed account of what occurred; (

b) Mr. Sarvucci’s wife confirmed details of Mr. Sarvucci's statement; (

c) Ms. Fornalik confirmed that Mr. Can had been at the warehouse on the day in question, placing him at the scene; (

d) Ms. Godfrey confirmed that Mr. Sarvucci was acting as if he had been a victim of kidnapping and extortion as he fledhis house and sought refuge at hers to call the police; and (

e) The Habibs corroborated that Mr. Sarvucci was held against his will at the warehouse and that violence was involved. [37] While Mr. Can submits that there are facts in dispute that need resolution by trial in order to determine the objective existenceof reasonable and probable grounds, he did not identify such facts. As noted by the Court of Appeal in Dow v. Shell, the respondent to asummary judgment application must be able to articulate what facts need to be tried in order to reach the legal conclusion. [38] Here, as the following review of Mr. Can’s submissions on the evidence demonstrates, Mr.

Can does not in fact dispute any ofthe evidence relied on by the defendants, but merely takes issue with the significance and implications of the evidence, and makesincorrect references to the evidence. [39] As a result, a trial is not required to determine the legal issue of the objective existence of reasonable and probable grounds: see for example, Leasing Group Inc. v. Prospect Developments

(2003) Inc., 2010 ABQB 234, 26 Alta. L.R. (5th) 33 at paragraph 28.The law of reasonable and probable grounds is well settled. The issue can fairly be determined on the record before the court. [40] Mr. Can submits at the outset that there is no evidence that he talked to or threatened Mr. Sarvucci. However, that is not thebasis of the charges against him. It was Mr. Can’s participation by way of supplying information to Mr. Sarvucci’s interrogators thatformed the basis of the charges.

It has long been established in criminal law that a party to an offence is in the eyes of the law as guilty asthe principal, and may be charged as a principal: R v. Whissel-McLeod Ventures Ltd. (1994), 1994 ABCA 375 , 157 A.R. 393at paragraph 13, citing R. v. Harder (1956), (SCC), 23 C.R. 295 (S.C.C.). Being present and participating in theextortion to some degree can be sufficient for a conviction: see for example, R. v. Law, [1989] B.C.J. No. 511 (C.A.).

[41] Counsel for Mr. Can next submits that the evidence that Mr. Can participated in the interrogation was not suggested until afollow up call between Det. Andrus and Mr. Sarvucci several hours after Mr. Can’s arrest. [42] The evidence does not support this submission. [43] The investigative report does confirm, as does Det. Andrus in his affidavit, that Det. Andrus had a conversation with Mr.Sarvucci after Mr. Can’s arrest, but before he was charged, in which Mr.

Sarvucci provided details as to the information provided by Mr.Can during the interrogation. [44] However, that same report indicates in earlier portions that Mr. Sarvucci stated in his initial interview, prior to Mr. Can’sarrest, that Mr. Can was present at the warehouse and that while Mr. Can did not talk to him or threaten him, he did provide informationabout Mr. Sarvucci’s family, his assets, and clarified the figures about the stock Mr. Sarvucci received. The report also indicates thatwhen the individuals questioning Mr. Sarvucci doubted his information, they would look at Mr.

Can. [45] This is consistent with Det. Andrus’ evidence. He states in his affidavit that in Mr. Sarvucci’s initial interview, prior to Mr.Can’s arrest, Mr. Sarvucci told him that: Mr. Can was present at the warehouse ‘the whole time’ telling them information...Mr. Can assisted the interrogators by providinginformation regularly, such as information about Mr. Sarvucci’s kids’ names and his wife’s name.” [46] Former counsel for Mr. Can also suggested to Det. Brydges at questioning that the police had failed to consider that Mr. Canwas not at the warehouse of his own free will. Det.

Brydges confirmed that there was no suggestion from Mr. Sarvucci in this regard, infact, his statement indicated that Mr. Can came and went at his own free will. Mr. Can did not submit any affidavit evidence to thiseffect, or at all in response to this application. [47] Mr. Can next emphasizes that before the charges were laid, the Detectives were aware that Mr. Sarvucci was or had beenunder investigation for fraud, yet none of the defendants checked Sarvucci’s criminal record prior to the arrest. It was later learned that infact, Mr.

Sarvucci had been convicted of perjury in the United States, which ultimately led to the Crown staying the prosecution. [48] As referenced above, the police need not exhaust their investigation prior to arrest. Det.

Andrus stated that although lookinginto a victim’s criminal record is sometimes done, it is not always done before an arrest is made, and simply depends on thecircumstances. [49] Moreover, as confirmed by one of the Crown prosecutors under questioning prior to the action being discontinued againsthim, even known liars can be victims of crime in need of police protection, and it is unusual for the victim in an extortion case to haveclean hands. The Detectives were aware of Mr. Sarvucci’s involvement in a past or current fraud matter and were alive to the importance of Mr.Sarvucci’s credibility.

The investigation of Mr. Sarvucci’s complaint extended to other sources which confirmed the particulars of hisaccount of the incident. As to the particular involvement of Mr. Can, a warehouse employee placed Mr. Can at the warehouse that day,as did the Habibs. Counsel for Mr. Can asserts that the confirmatory evidence must implicate Mr. Can. That is not correct. [50] The uncorroborated testimony of a single witness may be a sufficient basis upon which to convict: R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197 at paragraph 23.

In the case of an unsavory witness, it may be necessary to give the trier of facta “Vetrovec warning”. However, the law is clear that independent evidence, to be considered confirmatory, does not have to implicate theaccused. There is no separate rule for cases where the only evidence of the accused’s participation in the offence is that of a taintedwitness: R. v. Kehler, 2004 SCC 11 , [2004] 1 S.C.R. 328, confirming Vetrovec v. The Queen, (SCC), [1982] 1S.C.R. 811. Here, as described above, the police had significant confirmatory evidence of the incident described by Mr.

Sarvucci inassessing the reasonable and probable grounds to arrest Mr. Can, which of course invokes a lower standard than conviction at trial. [51] Mr. Can further stresses the interviews with the Habib brothers prior to Mr. Can’s arrest. He concedes that these interviews

generally corroborated that Mr. Sarvucci was held against his will, assaulted and threatened, but that the Habibs did not implicate Mr.Can. They indicated that Mr. Sarvucci was seeking payment from Mr. Can. They stated that some other men were seeking money fromMr. Sarvucci, but did not indicate that Mr. Can was involved in questioning Mr. Sarvucci. [52] Mr. Can submits that the commercial dispute with Mr. Sarvucci referenced by the Habibs formed the basis of a motive toimplicate him in the incident, and further negates Mr. Sarvucci’s credibility. Mr.

Can also complains that the police did not furtherinvestigate the possibility of Mr. Sarvucci extorting Mr. Can. [53] Mr. Sarvucci told the police about the debt owed to him by Mr. Can. Further, Mr. Sarvucci advised the police that he wascalled to the warehouse on the premise that he was going to get some money owed to him. The Habibs’ statements that Mr. Sarvucci wasthere to collect a debt from Mr. Can are consistent with the ruse described by Mr. Sarvucci employed to get him there. In any event,Mike Habib’s statement indicates that “it appeared [Mr.

Sarvucci] was trying to collect a debt owed to him and that he also owed moneyto some of these people”. The one does not rule out the other. [54] Similar so-called “exonerating” evidence was relied on by the plaintiff in Wong v. Toronto Police Services Board. Severalsuspects, including the plaintiff, Mr. Wong, were arrested and charged with murder. One of the suspects gave a statement. He admitted togetting into an altercation with the victim, but claimed to have only fired his gun several times in the air. He identified three othersinvolved in the incident, but not Mr.

Wong. [55] The Court in that case held that a police officer need not exhaust all possible avenues of investigation or inquiry, or interviewall potential witnesses, prior to making an arrest. In giving his statement to the police, this suspect was attempting to divorce himselffrom the actual murder (at paragraph 69). The Court referred to other confirmatory evidence supporting reasonable and probable cause. [56] Similarly here, the Habibs were also charged with extorting Mr. Sarvucci. Their statements indicate that they were attemptingto divorce themselves from the debt discussions taking place. Implicating Mr.

Can was not in their interest. Sam Habib admitted tothreatening and striking Mr. Sarvucci, but stated he only became involved in the debt discussions conducted by others present when hetold Mr. Sarvucci to “shut the f#ck up and show some respect” (The same words referenced by Mr. Sarvucci in his statement). He sayshe then “ended up popping him in the mouth with my fist.”(Consistent with what Mr. Sarvucci said). [57] Counsel for Mr. Can also made much of the fact that Mr. Can was not trying to get money out of anyone. However, Mr.Sarvucci did not say that Mr. Can was suggesting that Mr.

Sarvucci owed him money; he maintained that others were suggesting heowed them money and that Mr. Can was assisting these others in the extortion by supplying information. [58] This case is similar to Moak v. Ontario (Provincial Police). There, the Ontario Superior Court of Justice summarily dismissedMr. Moak’s action for negligent investigation, wrongful arrest, false imprisonment and malicious prosecution. The Court found thatdespite some evidence implicating the victim’s credibility and exculpating the accused, reasonable and probable grounds nonethelessexisted for arrest.

The Court found that the credibility of the complainant was improved by confirmatory evidence (at paragraphs 47-48). [59] Similar also is Solomonvici v. Toronto Police Services Board, (Ont. S.C.J.), aff’d 2010 ONCA 85. Theplaintiff, Mr. Solomonvici was charged with sexual assault but ultimately that charge was not prosecuted. Mr. Solomonvici sued thepolice for negligent investigation. [60] Mr. Solomonvici asserted that he had agreed to pay the complainant for sex and while this was occurring, she stole moneyfrom him.

He alleged that the police should not have believed the evidence offered by the complainant, who was a “well knownprostitute and drug addict”. Mr. Solomonvici argued that had the police done a proper investigation, they would have come to theconclusion that the complainant’s evidence was not capable of belief and that the other evidence supported the plaintiff’s version ofevents. [61] The Court rejected this submission and summarily dismissed the action, and commented at paragraph 12 that:

It is important to note that it is up to Crown counsel to make the determination of whether or not there are sufficient grounds to proceed to trial in any particular case. The mere fact that counsel was of the view that a chance of conviction on the sexual assault charge was not strong does not mean that there were not reasonable and probable grounds upon which to lay the charge.[Emphasis added.] [ 62 ] It must be emphasized that the police officer exercises his or her discretion at the lowest end of the continuum.

The Supreme Court of Canada describes the requirement of reasonable and probable grounds for arrest as very limited. The court is not to second guess or exercise hindsight to assess the reasonable and probable grounds. The evidence relied on by the police in this case is not, as suggested by Mr. Can, simply fragments of tenuous, unreliable and likely inadmissible evidence. The evidence amply demonstrates that the police had reasonable and probable grounds to arrest and charge Mr. Can as a participant in the extortion of Mr. Sarvucci.

There is no genuine issue for trial in this regard. [ 63 ] I turn now to the impact of this conclusion on each of Mr. Can’s claims. False arrest/wrongful imprisonment [ 64 ] To establish his false arrest/wrongful imprisonment claim, Mr. Can must initially demonstrate that he was completely deprived of his liberty by the police, against his will. If this can be demonstrated, the onus shifts to the defendants to show that the defendants were justified at law. The defendants can justify the detention by showing that there were reasonable and probable grounds for the arrest: R v. Storrey at 250.

There is no genuine issue for trial in a claim of false arrest/wrongful imprisonment where the evidence establishes that there were reasonable and probable grounds: Wong v. Toronto Police Services Board at paragraphs 74-77 . [ 65 ] Given my conclusion that there were reasonable and probable grounds to arrest Mr. Can, his claim for false arrest/wrongful imprisonment is summarily dismissed. Intentional infliction of emotional distress [ 66 ] To establish intentional infliction of emotional distress, Mr.

Can must establish flagrant or outrageous conduct on the part of the defendants, which is calculated to produce harm or it is known that harm will ensue, and actual damage as a result. Mr. Can alleged that Det. Manahan’s conduct toward him was “reprehensible, cruel and outrageous”. He has not submitted any affidavit evidence to support this allegation. [ 67 ] A videotape of Det. Manahan’s interview with Mr. Can, approximately 7 hours in length, was exhibited to Det. Andrus’ affidavit in support of this application for

summary dismissal. Counsel for Mr. Can advised the court it was not necessary to review this videotape. Counsel instead relied on the absence of reasonable and probable grounds to support this claim. [ 68 ] Given my conclusion that there were reasonable and probable grounds for Mr. Can’s arrest, his claim for intentional infliction of emotional distress is summarily dismissed. Negligent investigation [ 69 ] The requirement of reasonable and probable grounds informs the standard of care applicable to some aspects of police work, such as arrest: Hill v.

Hamilton- Wentworth Regional Police Services Board , 2007 SCC 41 , [2007] 3 S.C.R. 129 at paragraph 55 ; 68; Green v. Diack , 2012 ABQB 45 at paragraph 81 . In the circumstances of this case, the existence of reasonable and probable grounds to arrest Mr. Can assists the court in determining whether the Detectives breached the standard of care in investigating Mr. Sarvucci’s complaint. [ 70 ] As stated by McLachlin C.J.C. for the majority in Hill v. Hamilton- Wentworth Regional Police Services Board at paragraph 68 :

...At the outset of an investigation, the police may have little more than hearsay, suspicion and a hunch. What is required is that they act as a reasonable investigating officer would in those circumstances. Later, in laying charges, the standard is informed by the legal requirements of reasonable and probable grounds to believe the suspect is guilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them . The reasonable officer standard entails no conflict between criminal standards (Charron J., at para. 175).

Rather, it incorporates them, in the same way it incorporates an appropriate degree of judicial discretion, denies liability for minor errors or mistakes and rejects liability by hindsight. In all these ways, it reflects the realities of police work.[Emphasis added.] [ 71 ] The reasons of Charron J. at paragraph 175 state that “the presence of reasonable and probable grounds for laying the charge must constitute a bar to any civil liability”. [ 72 ] McLachlin C.J.C. emphasized the role of the police in investigating possible crimes and their place on the spectrum.

The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full facts to the prosecutor. Although the police are required to weigh evidence to some extent in the course of an investigation: “they are not required to evaluate evidence according to legal standards or make legal judgments. That is the task of prosecutors, defence attorneys, and judges”: Hill v.

Hamilton- Wentworth Regional Police Services Board , at paragraph 50 . [ 73 ] McLachlin C.J.C. confirmed that police investigation involves significant discretion. Police officers are professionals trained to exercise this discretion and investigate effectively. This inherent discretion is taken into account in formulating the standard of care (at paragraphs 51-53). She concluded at paragraph 73: ...the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances.

This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness.

So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made - circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals, nor does it guarantee desired results... [ 74 ] Mr.

Can alleges in paragraph 40 of his Amended Statement of Claim that there was “virtually no investigation into the merits of the allegations”. The above review of the steps taken by the police prior to Mr. Can’s arrest belies this allegation. [ 75 ] Mr. Can also submits that Det. Andrus and Det. Brydges breached the standard of care by ignoring evidence detracting from Mr. Sarvucci’s credibility and exonerating Mr. Can. Those submissions are addressed and rejected above. In the specific context of Mr.

Can’s negligent misrepresentation claim, it is helpful to refer to other court decisions determining whether the standard of care was breached by a police officer. [ 76 ] In Moak v. Ontario (Provincial Police) , the Ontario Superior Court of Justice summarily dismissed the claim of negligent investigation, on the basis that “at no time...was there overwhelming evidence exculpating Mr. Moak or overwhelming evidence making [the victim] an incredible complainant or an incredible witness...” (at paragraph 46). [ 77 ] Similarly in Wong v. Toronto Police Services Board , the police officers successfully applied for

summary judgment against Mr. Wong, who alleged negligent investigation, wrongful arrest, false imprisonment, malicious prosecution and breach of Charter rights. Mr. Wong had been acquitted of murder charges when the key witness recanted her testimony at trial. The Ontario Superior Court of Justice confirmed that in cases of credibility, establishing a breach of the standard of care requires a plaintiff to demonstrate that the defendants had “overwhelming” evidence discrediting the witness (at paragraph 57). [ 78 ] In this case, subsequent to Mr. Can’s arrest, the investigation progressed, and continued to generate information confirming Mr. Sarvucci’s version of events.

[79] The warehouse search disclosed a photocopy of Mr. Sarvucci’s driver’s license; Mr. Can was interviewed and initially deniedbeing present at the warehouse and denied any knowledge of any meeting about money being owed; Mr. Can then admitted beingpresent but denied any involvement in any extortion attempt; Mr. Can did not tell the police he was not there voluntarily, or that he wasbeing extorted by Mr. Sarvucci; other neighbours of Mr. Sarvucci confirmed that his wife attended at their home to leave her childrenthere, and that she advised that there was an emergency with Mr.

Sarvucci involving the Hell’s Angels; these other neighbours alsowitnessed various people coming and going to the Sarvucci residence as Mr. Sarvucci had described; and Mr. Apolant confirmed Mr.Sarvucci’s account of the incident at the warehouse, including that during the incident the partner was told to “get a couple hundredthousand dollars or else they would go take care of Mr. Sarvucci”. It was also determined that Mr. Sarvucci was convicted of perjury inthe United States, and detracted from the ability to prosecute in the Crown’s view.

That does not mean, however, that the policeinvestigation was negligent: see for example, Solomonvici v. Toronto Police Services Board at paragraph 12. [80] I cannot conclude that there was “overwhelming” evidence negating Mr. Sarvucci’s credibility, or exonerating Mr. Can.While the police were aware of Mr. Sarvucci’s past criminal involvement, and the Habibs did not implicate Mr. Can, they had significantconfirmatory information from other sources. [81] Mr. Can’s submissions focused on Det. Andrus and Det. Brydges. There is no specific allegation that Staff Sargeant Miller orDet.

Manahan were negligent, nor did counsel for Mr. Can direct the court to any evidence in this regard. The police had reasonable andprobable grounds to arrest Mr. Can and did not breach the standard of care. There is no genuine issue for trial as to negligentinvestigation. [82] Mr. Can’s claim for negligent investigation is summarily dismissed. Breach of the Charter [83] Mr. Can submits that his alleged wrongful arrest amounts to a breach of the Charter. The existence of reasonable andprobable grounds for Mr. Can’s arrest is similarly determinative of that claim. [84] Counsel for Mr.

Can submits, however, that a Master has no jurisdiction to hear a

summary judgment application involvingthe Charter, relying on section 9(3)(

c) and (

e) of the Court of Queen’s Bench Act, R.S.A. 2000, c. C-31. [85] Section 9(3)(

c) provides that a Master has no jurisdiction in matters that relate to criminal proceedings or the liberty of thesubject. It is not applicable to this civil proceeding. As this claim demonstrates, civil claims can “relate” in a broad sense to criminalproceedings or the liberty of the subject, but in my view, that is not the intended prohibition of this subsection. To suggest that a Masterhas no jurisdiction to consider a

summary dismissal application in civil claims that factually relate to past criminal proceedings isunreasonable and inconsistent with the conduct of Masters’ chambers in this province. [86] Section 9(3)(

e) prohibits a master from doing anything that by law is required to be done by a judge. The law does not requirea judge to consider the question of whether there is a genuine issue for trial regarding a claim for a declaration of breach of the Charter.There is precedent for a Master considering the Charter in the context of an amendment application: Gendreau v. Alberta, 2010 ABQB781, 507 A.R. 159 at paragraph 13 (Master Prowse). [87] Counsel for Mr. Can relied on R. v. Mills, (SCC), [1986] 1 S.C.R. 863. That case does not assist Mr. Can inthese proceedings.

It addresses the jurisdiction of provincial and superior courts to hear applications for relief under section 24(1) of theCharter in criminal cases. It does not suggest that a Master in chambers cannot consider an application in a civil proceeding that requires the determination of whether a claim for a claim for breach of the Charter should be summarily dismissed. [88] Mr. Can’s claim for a declaration of breach of the Charter is summarily dismissed.

Conclusion [ 89 ] The defendants’ application to summarily dismiss Mr. Can’s action is granted. [ 90 ] If the parties cannot agree on costs, they may make written submissions within 30 days of the date of this memorandum. Heard on the 1 st and 27 th days of February, 2012, further submissions received on March 12 th and 19 th , 2012. Dated at the City of Calgary, Alberta this 23 rd day of May, 2012. Jodi L. Mason M.C.C.Q.B.A.

Appearances: Scott Bower Bennett Jones LLP for the Defendants, Jack Beaton acting as Chief of Police for the Calgary Police Service Douglas Andrus, John Manahan, John Brydges, and John Miller Norman D. Anderson Shea Nerland Calnan LLP for the Plaintiff, Jim Can [1] While counsel for the defendants addressed each claim discretely in its initial brief, counsel for Mr. Can did not. Counsel for Mr. Can asserted that since the defendants’ application sought

summary dismissal of “the entirety” of the action, he had not prepared to address them discretely and, in any event, the court could not dismiss particular claims only. Mr. Can’s counsel was granted an adjournment in order to file a further brief to address the discrete claims. It is important to emphasize that counsel’s “all or nothing” approach is misconceived and inconsistent with the court’s jurisdiction on

summary judgment applications. The court has the jurisdiction to grant partial or other relief as may be warranted.