Can v Calgary Police Service, 2013 ABQB 226

Court of Queen ’ s Bench of Alberta Citation: Can v Calgary Police Service, 2013 ABQB 226 Date: 20130418 Docket: 0401 16314 Registry: Calgary Between: Jim Can Plaintiff/Appellant - and - Jack Beaton acting as the 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/Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.M.

Bensler _______________________________________________________ Appeal from the Decision by Jodi L. Mason, Master in Chambers Dated the 23 rd day of May, 2012

I. Introduction [ 1 ] This is an appeal from a decision of Master Mason to grant the Respondents' application for

summary judgment. The appeal is brought by Jim Can, who was arrested and charged in connection with the alleged forcible confinement and extortion of Anthony Sarvucci on March 11, 2003. Mr. Can was subsequently released and the charges associated with the allegations were dropped. Mr.

Can brought actions for wrongful arrest, false imprisonment, negligent investigation, intentional infliction of emotional distress and breach of the Canadian Charter of Rights and Freedoms , among others which he has since discontinued, against individuals involved in his arrest, including Jack Beaton acting as the Chief of Police for the Calgary Police Service ("CPS"), Detectives Douglas Andrus, John Manahan and Jeffery Brydges (named as John Brydges in the action), Staff Sergeant John Miller, and two "Doe" members of the CPS (collectively referr ed to as the "police defendants"). [ 2 ] Mr.

Can appeals the grant of

summary judgment on the basis that there are genuine issues for trial. For the reasons set out below, I dismiss the appeal and affirm Master Mason's May 23, 2012 decision to grant the police defendants' application for

summary judgment. II. Background [ 3 ] Master Mason provides a detailed overview of the evidence and facts of this case in her decision: Can v Calgary Police Service , 2012 ABQB 340 . I have summarized the pertinent facts from the record of proceedings below. Mr. Can's actions arise from incidents occurring on March 10 and 11, 2003, culminating in his arrest at approximately 3:30 p.m. on March 11, 2003. The parties acknowledged before the Master and before this Court that a central issue underlying each of Mr. Can's causes of action was whether the police had reasonable and probable grounds to arrest Mr. Can.

If so, Mr. Can's actions are bound to fail. Therefore, the timeline of events culminating in Mr. Can's arrest and charge are of central importance to this appeal, as they allow the Court to determine whether there is any genuine issue for trial regarding the existence of reasonable and probable grounds. [ 4 ] The evidentiary record before the Master and before this Court is the same.

It includes Detective Andrus' affidavit and exhibits, sworn on September 22, 2011, the transcript of questioning of Detective Andrus on his affidavit, and the transcript of questioning of Emmanuel Vomberg, a prosecutor involved in this case, on his affidavit. Detective Andrus has been a member of the CPS for over 31 years and was the primary investigator of Mr. Can's case. He has been promoted to Staff Sergeant, however will be referred to below as ‘Detective’ solely because that was his rank at the time of these events. A.

Timeline of Events [ 5 ] The alleged forcible confinement and extortion occurred during the afternoon of March 10, 2003. [ 6 ] According to Detective Andrus' affidavit evidence, at approximately 10:00 p.m. on March 10, 2003 he received a call from Staff Sergeant Marriott of CPS regarding a hostage taking. [ 7 ] At approximately 11:10 p.m. on March 10, 2003, Detective Andrus and Detective Brydges interviewed the alleged victim of the hostage taking, Anthony Richard Sarvucci. This interview lasted until 12:26 a.m. The interview was audio and videotaped.

Detective Andrus provides the details of this interview in his affidavit and the details are cogently summarized by Master Mason in her decision. In particular, Detective Andrus states in his affidavit that during the interview Mr. Sarvucci told the Detectives that: He was taken to a warehouse and held against his will. He had attended the warehouse at the invitation of a gentleman named Philip Oakes, under the ruse of recovering money owed to him. Once at the warehouse, Mr. Sarvucci saw several men that he knew, including Mr. Can.

He told me [Detective Andrus] that he had been physically assaulted, and that his life and the life of his family were threatened: para 6, Affidavit of Douglas Andrus sworn on September 22, 2011. [ 8 ] In addition to Mr. Can, Mr. Sarvucci identified two Hells Angels members, brothers Mike and Sam Habib, a man referred to

as Phil O (believed by CPS to be Philip Oakes) and an associate of Phil O as being present at the warehouse during this time. [ 9 ] Mr. Sarvucci recounted to Detectives Andrus and Brydges that the men told him that he owed them over one million dollars. Sam Habib had threatened to kill Mr. Sarvucci and had hit him across the face before asking him about his assets. During the ordeal, Mr. Sarvucci made a phone call to a colleague named Steve Apolant in New York to request his financial assistance. Mr.

Sarvucci told the Detectives that the men made a copy of his drivers licence and that the Hells Angels members told Mr. Sarvucci that if he called the cops his whole family would be dead. After holding Mr. Sarvucci for some time, several men later accompanied him to his home in order to have Mr. Sarvucci turn over assets to the men. On the way to his home, Mr. Sarvucci managed to call his wife and warn her to leave the house and to call the police. When the men arrived at Mr. Sarvucci's home, Mr.

Sarvucci managed to call the police and run over to his neighbour's house to wait until the men left. [ 10 ] Detective Andrus' evidence is that during this interview, Mr. Sarvucci was confident that Jim Can was at the warehouse "the whole time" and that Mr. Can was providing information, such as the names of Mr. Sarvucci's children and wife, to the men holding Mr. Sarvucci. [ 11 ] Mr. Sarvucci also provided a written statement detailing the incidents of March 10, 2003, which is attached to Detective Andrus' affidavit and is dated "Wed.

March 12, 2003." [ 12 ] At 12:27 a.m. on March 11, 2003, Detectives Andrus and Bridges interviewed Mr. Sarvucci's wife, Paula Pearce. Detective Andrus noted that she seemed upset during the interview. Ms. Pearce told the Detectives that she received a call from Mr. Apolant at approximately 3:00 p.m. on March 10, 2003 telling her that Mr. Sarvucci might be in trouble. She also confirmed that Mr. Sarvucci called her and was able to warn her to leave the house and to call the police. Mr. Sarvucci communicated to Ms. Pearce that he was with multiple people who were following him to their home and that they had guns.

Ms. Pearce explained that she left the house and met the police at a nearby Esso station. Ms. Pearce also provided a written statement to the police, which was attached to Detective Andrus' affidavit and dated "March 12/03." [ 13 ] That evening, after the interviews with Mr. Sarvucci and Ms. Pearce, the police took Mr. Sarvucci and Ms. Pearce to the location of the alleged crime scene. Mr. Sarvucci identified the warehouse where he had allegedly been held.

CPS then secured them in a safe location outside of the city until March 25, 2003. [ 14 ] In the evening of March 10, 2003, a member of the CPS took a written statement from Deborah Anne Godfrey, Mr. Sarvucci's neighbour. In her statement, Ms. Godfrey indicates that at approximately 6:20 p.m. on March 10, 2003, a man who identified himself as Anthony came into her house and told her that people were after him who were trying to extort money from him. He said he had been held at gunpoint in a warehouse earlier that afternoon. She says that Mr.

Sarvucci told her that he was speaking to the police on his cell phone, and he remained on his phone while he was in her house. Detective Andrus states that he reviewed Ms. Godfrey's statement shortly after it was taken. [ 15 ] At some point on March 10 or March 11, 2003, before Mr. Can's arrest on March 11, 2003, Detective Andrus learned from Detective Bellion that Mr. Sarvucci was being investigated for fraud in another matter. [ 16 ] In the morning of March 11, 2003, Detective Manahan interviewed brothers Mike and Sam Habib regarding the alleged incidents of March 10, 2003.

By 11:15 a.m. that morning, Detective Manahan briefed Detective Andrus on the outcome of the interviews. According to Detective Andrus, Detective Manahan told him that both Mike and Sam Habib admitted to being present at the warehouse on March 10, 2003, and that Sam Habib admitted to having "popped" Mr. Sarvucci in the mouth with his fist. The Habibs suggested to Detective Manahan in their interviews that it was in fact Mr. Sarvucci who was attempting to extort Mr. Can, and not the other way around. Detective Andrus states that he did not review the Habib brothers' statements prior to Mr.

Can's arrest but was briefed by Detective Manahan, who would have given him the best information that he had about the outcome of the interview. [ 17 ] At 12:15 p.m. on March 11, 2003, Staff Sergeant Miller took Mary Anne Fornalik's statement, which Detective Andrus reviewed before Mr. Can's arrest. Ms. Fornalik worked at the warehouse where Mr. Sarvucci claimed to have been held. She indicated that she personally knew several of the men who Mr.

Sarvucci had identified as being present, including "Jim," who she refers to as the "hummer owner." She confirmed that "Jim" was present at the warehouse on March 10, 2003, as well as "Mike" and "Sam." She indicated that Mike asked her to photocopy a licence, which she did and then gave the licence to Sam. She left work at approximately 5:05 p.m. and the men were still at the warehouse.

[ 18 ] By 2:05 p.m. on March 11, 2003, arresting officers arrived at Mr. Can's address. Mr. Can was arrested at approximately 3:33 p.m. on March 11, 2003. Detective Manahan interviewed Mr. Can after his arrest. Mr. Can initially told Detective Manahan that he was not at the warehouse and denied having supplied information about Mr. Sarvucci to the other men present at the warehouse. Mr. Can later changed his story and admitted that he had been present at the warehouse. Detective Andrus states in his affidavit that the fact that Mr.

Can was lying to Detective Manahan and that he changed his story served as further evidence of his involvement. Additionally, according to Detective Andrus, Mr. Can would have had the opportunity to address the contention that it was in fact he who was the victim of an extortion attempt by Mr. Sarvucci. Detective Andrus explains in his affidavit that Mr. Can did not provide the CPS with any convincing information to demonstrate that he was innocent or not involved in the crimes alleged by Mr. Sarvucci. Mr.

Can was therefore subsequently brought to the Arrest Processing Unit and placed in custody. [ 19 ] The remaining events occurred after the relevant time for determining whether Detective Andrus had reasonable and probable grounds to order Mr. Can's arrest. I will summarize these events but they are not determination of my decision. [ 20 ] Between 4:50 p.m. and 7:45 p.m. on March 11, 2003, the CPS executed search warrants of the warehouse.

A driver's licence belonging to "Robert Sarvucci" was found in a desk drawer at the warehouse along with a rifle, a pistol, shotgun ammunition and a revolver speed loader. [ 21 ] At 5:50 p.m. on March 11, 2003, Detective Andrus spoke with Mr. Sarvucci again. Mr. Sarvucci explained that while he was held at the warehouse, Mr. Can provided information about Mr. Sarvucci's family, vehicles and business dealings to the men holding him. [ 22 ] On March 12, 2003, Detective Andrus interviewed and took statements from Mr. Sarvucci's other neighbours, Martin and Janet Copperwaith.

The Copperwaiths confirmed that at approximately 5:20 p.m. on March 10, Mr. Sarvucci's children came to their house and asked to come in. Mrs. Copperwaith said that a few minutes later Ms. Pearce arrived and asked if her children could stay, explaining the situation with Mr. Sarvucci and the involvement of the Hells Angels. Mrs. Copperwaith drove Ms. Pearce to the Esso station. Both Mr. and Mrs. Copperwaith confirmed seeing people arrive at Mr. Sarvucci's house shortly thereafter. [ 23 ] On March 12, 2003, Detective Andrus showed Mr. Sarvucci three photo lineups from which Mr. Sarvucci identified Mike Habib, Mr.

Can and Philip Oakes. [ 24 ] On March 14, 2003, Detective Andrus showed Mr. Sarvucci another photo lineup from which he identified Sam Habib. [ 25 ] In Mr. Sarvucci's March 11, 2003 discussion with Detective Andrus he mentioned a man named "Chris" who was also involved with Mr. Can. CPS identified this man as Chris Stewart. On March 16, 2003, Mr. Stewart provided a written statement outlining his involvement with Mr. Can and how Mr. Can and others had threatened him. Mr. Can was charged on March 16, 2003 with committing extortion against Mr.

Stewart by inducing or attempting to induce him to turn over money while using a firearm. [ 26 ] On or around September 11, 2003, Mr. Apolant gave a statement to the Police Department in the County of Nassau, New York in which he confirmed receiving a call from Mr. Sarvucci around 4:00 p.m. on March 10, 2003. Mr. Sarvucci asked to borrow a couple hundred thousand dollars but Mr. Apolant could not help him. Mr. Apolant stated that after ending that call, he called Ms. Pearce. Mr. Apolant received another similar call from Mr. Sarvucci later that day, and finally received a third call from Mr.

Sarvucci who indicated that he was free. III. Legal Framework A. Standard of Review

[ 27 ] An appeal from the decision of a Master is guided by Rule 6.14 of the Alberta Rules of Court , Alta Reg 124/2010 (the " Rules "). Specifically, subrules 6.14(3) and 6.14(4) state:

(3) An appeal from a master's judgment or order is an appeal on the record of proceedings before the master and may also be based on additional evidence that is, in the opinion of the judge hearing the appeal, relevant and material.

(4) The record of proceedings is (

a) the application before the master, (

b) affidavits and other evidence filed by the parties respecting the application before the master, (

c) any transcript of proceedings before the master, which must be ordered and paid for by the appellant, unless the Court determines, or the parties agree, that transcripts are not needed, and (

d) the master's judgment or order and any written reasons given for the decision. [ 28 ] The Alberta Court of Appeal has clarified that the standard of review on an appeal from a Master's decision is correctness: Bahcheli v Yorkton Securities Inc. , 2012 ABCA 166 at para 3 , 524 AR 382. Thus, this Court may exercise its discretion and may substitute its own views for that of the Master. B.

Summary Judgment [ 29 ] The test on an application for

summary judgment is set out in Rule 7.3(1) (

b) of the Rules .

Summary judgment will only be granted where there is no genuine issue for trial: Gayton v Lacasse , 2010 ABCA 123 at para 10 , 482 AR 179 [ Gayton ]; Murphy Oil Company Ltd. v Predator Corporation Ltd. , 2006 ABCA 69 at para 24 , 384 AR 251. [ 30 ] The role of

summary judgment is explained by the Alberta Court of Appeal at para 50 of Gayton :

Summary judgment serves an important purpose in weeding out cases with no chance of success at an early stage. This principle was summarized in Canada (Attorney General) v. Lameman , 2008 SCC 14 , [2008] 1 S.C.R. 372 at para. 10 : This appeal is from an application for

summary judgment. The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [ 31 ] To warrant the continuation of the action, the party resisting

summary judgment must bring forward evidence or argument to disclose the merit in its position: see e.g. Gayton at para 50 . The responding party must put his best foot forward to show a real issue for trial in order to resist the motion for

summary judgment: see e.g. Bank of Montreal v Jarjoura , 2010 ABQB 103 at para 63 . He must be able to articulate certain facts that are in dispute and that should be resolved at trial: Dow Chemical Canada Inc. v Shell Chemicals Canada Ltd. , 2010 ABCA 126 at para 15 , 477 AR 112. C. Reasonable and Probable Grounds to Arrest [ 32 ] Master Mason provided a thorough assessment of the test for reasonable and probable grounds in her decision. I will repeat the salient points here for ease of reference.

[33] Criminal Code s. 495 sets out the authority for a police officer to arrest without a warrant, when he or she has reasonablegrounds to believe that a person has committed or is about to commit an indictable offence. The parties agree that R v Storrey, (SCC), [1990] 1 SCR 241 [Storrey] defines the test for determining whether a police officer had the requisite grounds toarrest without a warrant. The Supreme Court summarized reasonable and probable grounds as follows at 12: [T]he Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base thearrest.

Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in theposition of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. [34] The police officer must have his objectively reasonable subjective grounds before they arrest an individual. However, theSupreme Court also clarified that the basis for the arrest does not have to be perfect. In particular, "the police need not demonstrateanything more than reasonable and probable grounds.

Specifically, they are not required to establish a prima facie case for convictionbefore making the arrest": Storrey at 12. [35] The Ontario Court of Appeal further states in R v Golub (1997), (ON CA), 34 OR (3d) 743 (Ont CA) para21 that: In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit.

Theofficer must take into account all information available to him and is entitled to disregard only information which he has good reason tobelieve is unreliable [citations removed]. [36] Thus, the officer must do what he or she can in the circumstances to ensure that he or she has the appropriate grounds forarrest. However, in a similar case of an application for

summary judgment of an action for false arrest and imprisonment and othercauses of action, the Ontario Superior Court of Justice emphasized that: A police officer need not exhaust all possible avenues of investigation or inquiry, or interview all potential witnesses, prior to making anarrest.

Nor is a police officer required to obtain the accused's version of events or otherwise establish that the accused has no validdefence before being able to form reasonable and probable grounds: Wong v Toronto Police Services Board, at para59 [citations removed]. [37] Thus, the police officer is expected to do what he or she can in the circumstances, but need not solve the case before they arepermitted to arrest someone reasonably believed to have committed an offence. [38] With respect to this application for

summary judgment, as noted by Master Mason, the existence of a subjective belief on thepart of a relevant party, in this case Detective Andrus, is a question of fact, whereas the question of whether that subjective belief isobjectively reasonable is a question of law.

This is clarified by the Supreme Court of Canada in Miazga v Kvello Estate, 2009 SCC 51 atpara 74, [2009] 3 SCR 339 in discussing reasonable and probable cause to institute a prosecution: ...Unlike the question of subjective belief, which is a question of fact, the objective existence or absence of grounds is a question of lawto be decided by the judge: Nelles, at p. 193. As noted in Nelles (at p. 197), the fact that the absence of reasonable and probable cause isa question of law means "that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy", or ona motion for

summary judgment. These mechanisms are important "to ensure that frivolous claims are not brought" (Nelles, at p. 197). [39] See also: R v Shepherd, 2009 SCC 35 at para 20, holding that the question of whether the facts before the officer support theobjective reasonableness of subjective grounds for arrest is a question of law. IV. Analysis

[40] Counsel for Mr. Can submits that Master Mason's analysis was in error because she reviewed each of Mr. Can's allegedcauses of action separately, rather than reviewing the matter globally to determine whether there were any issues for trial. He contendsthat there are issues of fact and law on the pleadings that need to be determined at trial, and therefore Master Mason was wrong to grantsummary judgment. [41] In her decision Master Mason stated that Mr.

Can did not "dispute any of the evidence relied on by the defendants, but merelytakes issue with the significance and implications of the evidence": Can at para 38. This is true on appeal as well. Mr. Can has notsubmitted evidence to contradict the evidence presented by the police defendants, but rather seeks to highlight the weaknesses in theevidence supporting reasonable and probable grounds. [42] In particular, counsel for Mr. Can identifies the following weaknesses in the evidence:

(1) Prior to Mr. Can's arrest, Detective Andrus learned from Detective Bellion that Mr. Sarvucci was implicated in a fraudinvestigation. The police defendants failed to check Mr. Sarvucci's criminal background before Mr. Can's arrest. Had they done so theywould have discovered that Mr. Sarvucci had a previous criminal record for perjury, thus rendering his allegations unreliable.

(2) Mr. Sarvucci had self-serving motives to tell the police about the alleged threats since the police provided him with cash andsecurity when they secured him and his wife outside of the city.

(3) The police ignored exonerating statements by the Habib brothers suggesting that it was in fact Mr. Can who was the victim of anextortion attempt by Mr. Sarvucci. Counsel for Mr. Can submits that the question of whether the police ignored relevant evidence is aquestion for trial.

(4) The evidence of Mr. Can's direct involvement in the interrogation did not arise until approximately two hours after his arrestwhen Detective Andrus spoke to Mr. Sarvucci, and Mr. Sarvucci specified that Mr. Can had provided personal information about hisfamily, assets and business dealings to the other men at the warehouse.

(5) Ms. Fornalik's statement only identifies Jim "the Hummer owner" as being present at the warehouse. The CPS was left to surmisethat this was Jim Can. The fact that Mr. Can owns a Hummer did not emerge, at least in the record, until Mr. Can's questioning after hisarrest. [43] The record, in particular Detective Andrus' affidavit, shows that Detective Andrus subjectively believed that he had reasonableand probable grounds to arrest Mr. Can. There is nothing on the record of proceedings before this Court that contradicts this conclusionand the parties do not dispute it.

Therefore, the only question with regard to reasonable and probable grounds in this case is whetherDetective Andrus' subjective belief that he had the grounds to arrest Mr. Can was objectively reasonable in light of the facts known tohim before the arrest. [44] Detective Andrus admits in his affidavit that at the time of Mr. Can's arrest, he knew that Mr. Sarvucci was suspected of beinginvolved in other criminal activity, but he did not learn of Mr. Sarvucci's perjury charges until after Mr. Can's arrest.

Detective Andrusexplained that while the CPS will sometimes look into a victim's criminal record before an arrest is made, this is not always done. Hefurther states that even if he had known of Mr. Sarvucci's criminal record, he still would have believed him and ordered Mr. Can's arrest.Detective Andrus reaffirmed this statement under questioning. It is further affirmed by the prosecutor, Emmanuel Vomberg underquestioning, who explained that victims with criminal pasts or who have a history of lying are nevertheless entitled to protection of thelaw. Furthermore, Mr.

Vomberg explained that it is not uncommon in an extortion case to have a victim with an unsavoury past. [45] Reasonable and probable grounds based on evidence from an imperfect witness can still be objectively reasonable, unlessthere is overwhelming evidence to render that witness incredible: see e.g. Moak v Haggerty, at para 46, 162 ACWS (3d)929 (ON SC) (in which it was reasonable for police to rely on a statement from a 14-year old witness who had made prior inconsistentstatements).

Furthermore, the Courts have long held that simply because a witness is unsavoury, does not mean that their evidence is tobe automatically ignored, though it might require corroboration: see e.g. R v Vetrovec, (SCC), [1982] 1 SCR 811.Corroborative evidence does not necessarily have to implicate the accused in order to be considered confirmatory, a principle noted byMaster Mason in her decision: see R v Kehler, 2004 SCC 11 , [2004] 1 SCR 328.

[ 46 ] Detective Andrus had evidence before him that corroborated Mr. Sarvucci's statement. In particular, Mr. Sarvucci's version of events was corroborated at various points by Ms. Pearce through her recounting of the phone calls from Mr. Apolant and Mr. Can, by Ms. Godfrey's explanation of Mr. Sarvucci's entrance into her home, by Ms. Fornalik's confirmation that Jim, Sam and Mike were present at the warehouse during the relevant hours and that she was asked to photocopy a licence. In addition the Habib brothers confirmed that they had been at the warehouse with Mr. Sarvucci, and that Sam Habib had hit Mr.

Sarvucci in the face. [ 47 ] Though the Habib brothers gave a different version of events than Mr. Sarvucci, the bulk of evidence before Detective Andrus at the relevant time supported Mr. Sarvucci's version of events. Counsel for Mr. Can suggests that the police should have pursued an investigation into Mr. Sarvucci upon learning of the allegation that Mr. Sarvucci was extorting Mr. Can. However, Mr. Can does not point to any evidence that corroborates the Habibs' allegation. There is no evidence on the record that Mr. Can came forward to the police to report an extortion attempt by Mr.

Sarvucci, and there is nothing to suggest that the Habibs' version of the story is inherently more reliable than Mr. Sarvucci's, in particular since it is not surprising that an individual implicated in the alleged crimes under investigation might provide a contradictory and exculpatory explanation of events. For these reasons, I do not find that this allegation by the Habib brothers creates a genuine issue for trial regarding whether or not CPS overlooked relevant evidence. [ 48 ] Counsel for Mr. Can also suggested that the police overlooked Mr.

Sarvucci's self-serving economic motive for lying, as he was provided with security and a financial allowance following his allegations. However, there is nothing on the record to support this contention. For instance, there is no indication that Mr. Sarvucci profited from being put in police protection for a two week period. Mr. Can does not point to any evidence that should have suggested to CPS that Mr. Sarvucci was making false allegations for the purpose of gaining two weeks of protection. Mr. Can is required to put his best foot forward to resist a

summary judgment, and asking the court to derive an inference with no facts on the record to support it does not constitute a genuine issue for trial. [ 49 ] Thus, I do not find that Mr. Can has presented any genuine issues for trial. In

summary:

(1) A trial is not necessary to determine why the police service did not review Mr. Sarvucci's criminal record before arresting Mr. Can, because even if they had, it would not have affected their belief that he was a victim of a crime deserving protection of the law. It similarly would not have rendered this belief objectively unreasonable, because Mr. Sarvucci's version of events was corroborated by three other witnesses, and was even confirmed to some extent by two adverse witnesses, namely the Habib brothers, who were equally implicated in the criminal activity alleged by Mr. Sarvucci.

(2) The contention that Mr. Sarvucci had ulterior financial and security motives to make his allegations does not raise an issue for trial, because the record provides no support for this allegation.

(3) A trial is not needed to determine whether CPS should have pursued the allegations by the Habib brothers instead of arresting Mr. Can. At the time when these allegations were made, all of the other evidence supported Mr. Sarvucci's version of events, and the Habib's were implicated in the extortion, so their conflicting version of events does not undermine the objective reasonableness of Detective Andrus' grounds to arrest Mr. Can. Furthermore, the Habib brothers confirmed some elements of Mr. Sarvucci's story.

(4) Mr. Sarvucci had implicated Mr. Can in the extortion prior to the arrest, as confirmed in Detective Andrus' uncontradicted affidavit. The fact that more details came out after the arrest does not change the fact that Mr. Can was already implicated.

(5) While Ms. Fornalik's statement does not specifically allege that "Jim Can" was present at the warehouse, her statement nevertheless coincides with the evidence provided by Mr. Sarvucci, in particular that a "Jim", "Sam" and "Mike" were all present at the warehouse together, as indicated by Mr. Sarvucci. Also Ms. Fornalik was asked to photocopy a licence, corroborating Mr. Sarvucci's statement that the men holding him had copied his licence. Her statement, combined with all of the other evidence outlined above, provided support for the objective reasonableness of the grounds to arrest Mr. Can.

Her statement does not raise or contribute to a genuine issue for trial. V. Conclusion [ 50 ] For the reasons outlined above and for the reasons provided by Master Mason, I grant

summary judgment on all causes of actions. The appeal is dismissed.

[ 51 ] If counsel are unable to agree on costs, they may appear before me within 60 days. Heard on the 29 th day of November, 2012. Dated at the City of Calgary, Alberta this 18 th day of April, 2013. S.M. Bensler J.C.Q.B.A. Appearances: Norman D. Anderson and Beth McLain, Shea Nerland Calnan LLP for the Plaintiff Scott H.D. Bower, Bennett Jones LLP for the Defendants, Jack Beaton acting as the Chief of Police for the Calgary Police Service, Douglas Andrus, John Manahan, John Brydges, John Miller, John Doe, and Jim Doe