Counsel:

¶ 1      DAMBROT J.:— On July 5, 1990, Paul Bainard and Kevin Molloy, two promising young police constables with unblemished records were on general patrol in the north end of Toronto.  At about 5:50 p.m., they made a routine arrest of Stephen Rokka, whom they found consuming alcohol in a laneway. Little did they know that this prosaic event was about to turn their lives upside down.

¶ 2      A citizen who observed the arrest believed that the officers had assaulted Rokka, and made a complaint to the Police Complaint Investigation Bureau that same day.  The investigation of the complaint was badly bungled.  On November 7, 1994, more than four years after the arrest and the making of the complaint, the two officers were charged with assault and obstructing justice.  On April 25, 1995, almost five years after the arrest, they were charged under the Police Services Act.  On February 4, 1998, almost eight years after the arrest, the criminal charges were stayed.  On December 3, 1998, eight and a half years after the arrest, the disciplinary proceedings were dismissed.

¶ 3      On June 1, 1999, the two officers commenced this action for malicious prosecution, abuse of process, negligence and negligent investigation.  (The tort of abuse of process was not pursued at trial.)  The evidence that I heard at the trial satisfies me, and I am confident would satisfy any dispassionate, reasonable and objective person that these officers did not assault Rokka.  This evidence was known to the authorities before the criminal charges were laid. Bainard and Molloy should never have been charged with criminal or service offences.  The effect of these charges on the professional and personal lives of these officers and their families has been devastating.  Yet no one has ever apologized to them.  No one has ever admitted that errors were made.  Both officers testified, and I believe them, that an apology would have resulted in an early, voluntary termination of this lawsuit.  I can only hope that whatever the plaintiffs may think of my disposition of this case, this judgment finally removes the cloud that has hovered over their heads these many years, brings closure to this sorry incident, and allows them to get back on track personally and professionally.

¶ 4     The defendant Janet Dixon conducted the investigation of the plaintiffs.  The defendant Thomas Dalziel conducted the prosecution of the discipline charges.  I have had little difficulty in reaching the view that their conduct of the investigation and prosecution of Bainard and Molloy was neither wise nor fair.  My responsibility as the trial judge, however, is to decide the lawfulness of their conduct, and not its wisdom or fairness.  That is a more difficult question.

THE FACTS

The Plaintiffs

¶ 5      Paul Bainard is 39 years of age, is married and has two young children.  He has completed two years of a Bachelor of Arts programme at Laurentian University.  He joined the Toronto Police Service in 1985.  In July of 1990, he was a uniform patrol officer in 32 Division.

¶ 6      Kevin Molloy is 40 years of age, is also married and has two children.  After graduating from high school, he spent ten years in the armed services.  In August of 1989, he joined the Toronto Police Service.  In July of 1990, he was a uniform patrol officer in 32 Division.

The Arrest of Rokka

¶ 7      The following is a summary of the events surrounding the arrest and trial of Rokka as recounted by Bainard and Molloy.

¶ 8      On July 5, 1990, shortly after beginning their patrol duties for the day, Bainard and Molloy were driving south through an alley that runs parallel to Yonge St. south of Finch Ave.  Shortly before 6:00 p.m. They observed Rokka seated in a sheltered area to the rear of a store holding what appeared to be a bottle of liquor.  He also had a five-litre jug of water in a plastic bag in his possession.  Rokka was over six feet tall, slender, dirty and disheveled.  The officers got out of their car, intending to pour out Rokka's liquor and move him along.  As they approached him, Rokka stood up, smashed the bottle on the ground and turned his back on the officers.  He then discarded a styrofoam cup and backed away with the broken end of the bottle in his hand, brandishing it at the officers, hunched over, snorting and making animal sounds.  Bainard became concerned and returned to his car to call for assistance.

¶ 9      Meanwhile Molloy approached Rokka, spoke to him in an effort to calm him down, and told him that he was under arrest.  Rokka remained hunched over with the bottle in his hand.  His head presented a target, and Molloy grabbed at his hair.  Rokka's hair was long, dirty and greasy, and Molloy lost his grip.  Rokka then pushed Molloy back and kicked at him.  Molloy lost his balance.  Rokka still had the broken bottle, and was holding it close to Molloy.  Meanwhile Bainard had approached Rokka, and the two officers were able to force Rokka to the ground.  He continued to resist, flailing and kicking, and swinging his bag containing the five-litre jug of water.  Bainard handcuffed him, by which time he had discarded the remains of the liquor bottle.  The officers lifted Rokka from the ground and took him to their car.  On the way, Rokka was stomping and kicking at Molloy's legs.  Bainard placed him against the hood of the police car, with the intention of stopping him from kicking by lifting his feet from the ground. This proved difficult because of Rokka's height.  Rokka continued to kick, and wouldn't let go of his jug.  Bainard struck his wrist to distract him, and he dropped the jug.  By this time, backup had arrived, and Rokka was placed in a scout car with the assistance of P.C. Row and P.C. Moynagh.

¶ 10      At that point, a civilian named John Moore approached from the west and presented himself to Bainard. Ingrid Smithwick, another civilian, approached from the north. Moore demanded to know why Rokka had been arrested.  He was quite agitated, and asked a flurry of questions.  He felt that the police had used unnecessary force.  As this was going on, Kevin Jeanjacques, a third civilian, arrived from the east, and made comments about police brutality pertaining to blacks. Rokka was white.  Bainard retrieved the broken neck from the bottle, which was a 26-ounce bottle of "Electric Ricky", showed it to Moore, and told him that Rokka had been brandishing it.  Moore replied, "Bullshit, you planted that." Molloy gave his badge number to Moore and told him that if he had a complaint, he should speak to S/Sgt. Knowlton at 32 Division.  Moore conveyed his observations to Smithwick, and the two of them then huddled with Jeanjacques.

¶ 11      Bainard and Molloy then took Rokka to 32 Division.  They told S/Sgt. Knowlton, the officer-in-charge at 32 Division, about the possible complaint.  Rokka was paraded before Knowlton, and the seized property was brought in. Bainard and Molloy completed their note of the arrest in their memo books at 32 Division.  Neither of them mentioned the three civilians in their notes.

¶ 12      Rokka had no sign of visible injury, and denied being assaulted.

¶ 13      Det. Yorke was a detective on duty at 32 Division, and he took over the investigation.  Rokka was charged with assault and possession of a weapon dangerous to the public peace, and Det. Yorke then became the officer in charge of the case against Rokka.  It was his responsibility to prepare the Crown brief, which included a list of witnesses.  Bainard and Molloy prepared "will-say" statements and provided them to Yorke.  Once again, neither of them mentioned the civilian witnesses in their statements. Yorke also prepared a "use of force" report, at the suggestion of Knowlton, although Rokka was not in fact injured.

¶ 14      Rokka gave a false name to the police.  Once his true name was discovered through fingerprinting, it was learned that he had an extensive criminal record, three or four pages in length, consisting mostly of violent behaviour, including convictions for assault, assault police, assault resist arrest, and assault with a weapon.

¶ 15      John Moore was the only one of the three civilian witnesses to testify at the trial before me.  He gave a dramatically different account of Rokka's arrest.  He testified that Rokka presented no threat to the officers, but that Molloy gratuitously assaulted him.  He did not present as an impressive witness.  The force of some of his evidence seemed to have diminished significantly in the several instances that he told his story over the years.  For example, in his initial statement, he said that Molloy smashed Rokka's face into the hood repeatedly and violently.  Three years later, he said that Molloy thrust Rokka's face into the hood several times.  At his pre-trial examination, he said that Molloy pushed his head into the hood of the car a couple of times.  At trial, he said that he saw Molloy bang Rokka's head against the hood of the police car a couple of times.  Moore attributed the weakening of his evidence to the fact that he had been a lot angrier about the incident at the time it happened, and was less emotional now.  That is likely a truthful explanation of the changes, but hardly one that enhances his credibility.

¶ 16      Moore also had a tendency to take positions, hold them with vigour and admit of no possibility of error.  Some of these positions were demonstrably wrong.  For example, he insisted that he saw Rokka throughout the incident, and at no time did he see him holding a five-litre jug of water, or disposing of a styrofoam cup.  Rokka himself admitted in his evidence at his own trial that he disposed of a cup at the same time as he disposed of the bottle.  In addition, the property report of Rokka's personal effects taken from him upon his arrest (and not the property report of evidence seized) prepared on July 5, 1990, at 6:55 p.m., lists a brown belt, a blue jacket and a "5 l water bottle (full)".  It is virtually indisputable that Rokka did have the cup and jug that the officers said he had.  Moore also insisted that at no time during the incident did Bainard or Molloy go back to the cruiser, and that it was not possible that one of them did and he simply did not see it happen.  It is indisputable, from the tape of the communications emanating from the police car during the incident, that one of the officers did return to the cruiser, just as Bainard has always maintained.  The fact that Bainard did so also supports the officers' evidence that they were being threatened by Rokka's actions and required assistance.  Bainard would not likely have paused to ask for assistance if he and Molloy were inflicting a gratuitous beating on Rokka.

¶ 17      I found the evidence of Moore concerning the arrest of Rokka to be entirely unreliable.  He is an emotional man who formed an instant view that the officers were acting inappropriately.  No piece of evidence, however persuasive, can shake his conviction that the details of his recollection of the arrest of Rokka are accurate.  His evidence is only moderated by the cooling of his passion.

¶ 18      On the other hand, I found the evidence of both Bainard and Molloy to be credible and reliable.  They are both intelligent, well-spoken, sincere and honourable young men who gave their evidence in a straightforward manner.  It is clear to me from what I have seen of them and what I have learned about them that neither one of them is the sort of man who would deliberately beat up a homeless person, or who would conceal the fact that he saw another officer do so.

The Trial of Rokka

¶ 19      Rokka was tried in the Ontario Court of Justice (Provincial Division) on November 13, 1990.  Yorke did not attend the trial, and Bainard substituted for him in court. Bainard discussed a possible resolution of the case with counsel for Rokka in the hallway.  He advised counsel that he was the subject of a complaint by three persons other than Rokka, and accordingly would not support a disposition of the case that did not reflect the gravity of the circumstances that the officers faced in the laneway.  No resolution was reached.  Counsel also told him, after speaking to his client, that he was not concerned about the three other witnesses and wanted an expeditious trial.  The fact that Bainard spoke to counsel for Rokka about a resolution of the case is confirmed by the transcript of the trial.  Before the trial commenced, counsel advised the Court that he anticipated a trial, but hadn't yet had an opportunity to speak to the police officers involved in the matter.  The trial judge replied that the matter would be held down until after recess.  After the recess, counsel announced that he had had an opportunity to speak to the officers and to Crown counsel, and that it would be a trial.  Both Bainard and Molloy testified at the trial, as did Rokka.  The trial judge believed the officers, and disbelieved Rokka, who was convicted of two counts of assault and one count of possession of "weapon dangerous."

The Investigation and Prosecution of Bainard and Molloy

¶ 20      On July 5, 1990, the day that Rokka was arrested, John Moore attended at 32 Division and made a formal complaint against Bainard and Molloy.  In his complaint, he alleged that the two officers used excessive force in subduing and arresting Rokka.  Specifically, he claimed that Molloy used his club to choke Rokka despite the fact that Rokka had not struck or attempted to harm either of them; that after he was cuffed, Rokka was thrown violently against the hood of the police car; and that Molloy then repeatedly smashed Rokka's face to the hood.  Sgt. Nowitski assisted him in completing the complaint form, and forwarded it to the Complaints Bureau. That evening, Knowlton told Bainard and Molloy that a complaint had in fact been made.

¶ 21      Kevin Jeanjacques also spoke to Nowitski at 32 Division on July 5, and alleged that Bainard and Molloy had assaulted Rokka.  He returned the following day and made a formal complaint.  Nowitski forwarded this complaint to the Complaints Bureau as well.

¶ 22      It is apparent that both S/Sgt. Knowlton and Sgt. Nowitski knew about the complaint.

¶ 23      On July 16, 1990, Det. Dan Clements of the Complaints Bureau received Moore's complaint and commenced an investigation.  Shortly thereafter he began sending monthly reports of his progress to Bainard and Molloy.

¶ 24      Clements was present in court at Rokka's trial on November 13, 1990.

¶ 25      Just before Christmas in 1992, Molloy learned from a Police Association representative responsible for interacting with the Complaints Bureau that Clements had completed his investigation and was going to report the complaint as unfounded.  Molloy advised Bainard of this.  From then on, Bainard and Molloy received no further interim reports.  They did not, however, receive a final report.

¶ 26      Early in 1993, Bainard was transferred to Forensic Services, and was called in by Staff Inspector Madrick, who was the officer in charge of the unit, to rehash the outstanding complaint once again.  Bainard asked Madrick if he could find out the status of the complaint, because he had understood that it was over.  Soon after, Bainard got a call from a Sergeant at the Complaints Bureau, who told him that they could find no record of the complaint.  The file was somehow lost when Clements was transferred out of the bureau. The Sergeant asked him to send him a copy of the face page of Moore's report, so that he could tie up the loose ends. Bainard complied with this request.

¶ 27      On April 8, 1993, a newly opened file was assigned to Det. Janet Dixon who commenced a new investigation of Moore's complaint.  Neither Bainard nor Molloy was informed of this; in fact Bainard heard nothing further from the Complaints Bureau Sergeant to whom he had sent the face page of Moore's complaint.  One or two months later, he started receiving monthly reports once again, this time from Det. Dixon.  Only some time later did he realize that this was not part of the paperwork to close the complaint process, but instead that the matter was being re-investigated.  Molloy first realized that the matter was not over when he received a Complaint Response Statement to fill out for the third time.  He completed this form on November 4, 1993.

¶ 28      Molloy called Dixon to express his dismay.  She advised him that the investigation had not been completed; the file was lost; and she was picking up the ball and re-investigating the complaint.  At Dixon's suggestion, Molloy politely expressed his displeasure in writing by way of a memorandum to Acting Inspector Grosvenor, the officer in charge of the Complaints Bureau.  He was not given the courtesy of a reply, or even an acknowledgement.

¶ 29      On July 23, 1993, Dixon took a statement from Moore.  Moore said that on July 5, 1990, he was in the laneway where Rokka was arrested.  He observed Rokka, who appeared to be a "derelict", sitting and drinking liquid from a bottle. When the police car pulled up, he said, "to the best of ... [his] ... recollection", Rokka broke the bottle on the ground and threw away the neck portion.  The officers tried to get him onto his feet.  Rokka cowered and refused to cooperate, but did not act in a threatening way.  Molloy put his nightstick under Rokka's neck and tried to lift him. Eventually, the officers got Rokka to their car.  They held him against the side of their hood and tried to search a bag that was strapped to him.  They had difficulty because he was squirming.  Molloy grabbed Rokka by the hair or neck and thrust his face into the hood several times.  This stunned Rokka.  He was then placed in the car.

¶ 30      On November 24, 1993, Dixon ordered the transcript of Rokka's trial.  When she ultimately reviewed it, she noted that Rokka made no suggestion that he was injured, and made no other complaint about the police treatment of him in his testimony.  It is also noteworthy that although Rokka denied fighting with the officers (when asked if he fought with the officers, he replied, "Not that I know of"), he did admit in cross-examination that he had a "scuffle" with them.

¶ 31      On February 4, 1994, Dixon took a statement from Ingrid Smithwick.  She said that she was in the laneway on July 5, 1990, and saw Rokka sitting "peacefully", with a bottle.  She left briefly.  When she returned, she saw the officers dragging Rokka to their car.  "They" then started banging the front of his head on the car.  She said that she thought that they were going to kill him.  She went on to say that she wasn't sure whether it was one or two officers who were banging his head.

¶ 32      On February 7, 1994, Dixon questioned Moore again about the incident.  He reiterated that it was his recollection that Rokka discarded the broken bottleneck as the officers were exiting their vehicle but before they reached him.  He did not recall Rokka having a white styrofoam cup or any other object.  On November 16, 1994, he "corrected" this and said that Rokka discarded the bottle while the police car was still in motion.

¶ 33      On February 25, 1994, Dixon received and reviewed the audiotape of calls made from the car driven by Bainard and Molloy on July 5, 1990.  At 5:49 p.m., an out-of-breath officer asked for another unit behind Multitech Warehouse at Yonge and Finch.  At 5:51 p.m. the request was repeated, but the officer said "everything's square for the moment."  When asked what was going on, he said, "Violent drunk.  Vagrant."

¶ 34      On March 10, 1994, Dixon spoke to Rokka's niece. She confirmed that he had spent time in jail and in a hospital where he had been declared unfit.  The Public Trustee had taken over his estate.  He had been panhandling at Yonge and Keele, and could be violent.

¶ 35      Dixon also did a CPIC check on Rokka, and learned that he had an extensive criminal record extending back for twenty years, and including 50 or more convictions.  A number of these pertained to assaults and assaults on police officers.

¶ 36      On March 28, 1994, Dixon reviewed the video of Rokka's booking.  He was very disheveled and was grunting. She could see no injuries, but the quality of the video was not high.  Rokka's mugshot also revealed no injury.  She also learned that Rokka made no complaint about his treatment.

¶ 37      Dixon also knew that after his arrest, Rokka was taken to Toronto East Detention Centre, where he would have been stripped and searched.  If he had had signs of physical injury, these would have been reported to 32 Division.  On November 29, 1994, Dixon contacted the jail, and learned that no evidence of injury was noted.  Rokka made no complaint, received no treatment, and no colour photograph was taken of him.  A colour photograph would have been taken if any injuries were observed.

¶ 38      During April, 1994, Dixon reviewed statements that she received from several officers.  These statements disclosed the following:

¶ 39      On April 20, 1994, Dixon interviewed Rokka at the Don Jail.  He had been arrested for assaulting a police officer with a liquor bottle while resisting arrest in very similar circumstances to those asserted by Bainard and Molloy. Dixon was only able to locate Rokka with the assistance of Molloy.  Rokka recalled the incident in question.  He remembered breaking the bottle, but said that he didn't recall brandishing it at the police or kicking them.  He said that the police threw him on the hood of his car, but that they didn't hit him or do anything else to him.

¶ 40      On May 31, 1994, Dixon took a statement from Kevin Jeanjacques.  He also saw Rokka sitting in the laneway on July 5, 1990.  According to him, two police vehicles entered the laneway, one left, and the other parked.  Two officers got out, wrenched Rokka up by the arms, dragged him to the cruiser and handcuffed him.  He said that Rokka wasn't resisting at all, and the officers were too rough.  They bent him over the hood of their car and one officer smashed his head on the car.  Rokka squirmed and had blood on his nose and mouth.  Four or five other officers arrived and at least three were holding his legs while the one officer was banging his head up and down on the hood.  He did not recall seeing a bottle.

¶ 41      On May 31, 1994, Dixon completed a package for the Professional Standards Review Committee, which was to meet and consider it on June 16, 1994.  In it, she included a list of "mitigating" and "aggravating" factors, by which she meant considerations that bore in favour of, and against laying criminal charges.  This list reads as follows

      MITIGATING FACTORS:

¶ 42      At its meeting of June 16, 1994, the Committee did not reach any conclusion, but instead directed Dixon to ask certain questions of the two officers and Det. Clements.

¶ 43      On July 20, 1994, Dixon interviewed Bainard and Molloy.  On July 27, she interviewed Clements.  Det. Clements told her that he had investigated Moore's complaint.  He explained that Jeanjacques had withdrawn his complaint and was to be used as a witness on Moore's complaint.  He said that he did not inform the Crown Attorney who prosecuted Rokka that there were civilian witnesses to the arrest.

¶ 44      On August 5, 1994, Dixon interviewed Det. Yorke. She asked him if he was aware before Rokka's trial that there were three independent witnesses to Rokka's arrest.  He said that he was not.  Dixon assumed, because Yorke said that he did not know of the civilian witnesses, that the Crown and defence did not know of them.  She never interviewed either of them.  She did not know if Nowitski, Knowlton or any of the officers who were at the scene had told the Crown about the civilian witnesses.  She did not even know if Bainard had told the Crown about the civilian witnesses.

¶ 45      Dixon also spoke to Nowitski.  He did not think it was his responsibility to advise anyone other than the Complaints Bureau of the three civilian witnesses to the arrest of Rokka.  He noted that Staff Sgt. Knowlton knew about them.

¶ 46      Based on all of the evidence that she had gathered, Dixon formed the belief that Bainard and Molloy had assaulted Rokka, and misled the court at Rokka's trial.

¶ 47      On September 8, 1994, the Professional Standards Review Committee met.  It was decided that the case would be referred to an uninvolved assistant Crown Attorney for guidance.  Dixon did in fact receive encouragement to proceed with criminal charges from Crown counsel.  In the end, however, it was Dixon's decision whether or not to lay charges.

¶ 48      On November 7, 1994, Dixon swore an information charging Bainard and Molloy each with one count of assault and one count of obstruct justice.  The obstruct justice counts were meant to encompass two aspects.  The first focussed on the allegedly misleading testimony of Bainard and Molloy at Rokka's trial that they observed Rokka brandishing the broken bottleneck.  The second aspect related to their alleged failure to tell the prosecutor about the civilian witnesses. Dixon said that she considered the second aspect of the charge to be more important than the first.  The conclusion that they should be charged with assault was based entirely on the statements of the three civilian witnesses, and with the knowledge that no other evidence suggested that an assault had taken place.  She was aware of the many inconsistencies in their evidence, but thought that the "essence was there."  It did not occur to her that the civilian witnesses might be well-intended persons who had misinterpreted what they saw. She never put her mind to this possibility.

¶ 49      Bainard was shocked and angered, and felt shattered by the news that he was being charged.  At the time, he was in charge of the forensic side of a homicide investigation.  He was removed from the file, he was told, because his integrity had been impugned.  He was instead given a desk job answering telephones, which he did for nine months. He was not permitted to work in the lab.  Ultimately, as a result of a large number of retirements and a shortage of officers, it was decided that he could undertake an assignment on the road.  He was also the subject of unflattering press reports on television, and in the Toronto Sun and the Toronto Star.  His mother, who lived in Sudbury, received calls about the allegations.

¶ 50      When Molloy was told of the charges, he was shocked and disappointed.  He felt like he had been punched in the stomach.  At the time, he was a uniform officer in 41 Division.  He was reassigned as a station duty officer.  He was not permitted to carry out any responsibilities.  He was not permitted to answer the telephone or speak to the public, because his integrity was viewed as compromised.  He was not permitted to have contact with prisoners.  He was not supposed to cross a line of tiles in the police station.  He was insulted, and told his Sergeant that this was unacceptable. Over a period of time, these restrictions were loosened, until he became a station operator without restrictions.  He found these circumstances to be very stressful.  He was aware of the publicity given the case.  In fact, he viewed a television broadcast about it with his wife and daughter.  He didn't know how to tell his parents about the charges, but they read an article about it in the London Free Press.  His neighbours found out about it, as did his friends in his hometown.  He was very embarrassed, and has still not got over it.  Finally, in June 1995, he was permitted to resume investigative duties.

¶ 51      Staff Inspector (then Acting Inspector) Tom Dalziel was a member of the trials preparation unit, and designated as a prosecutor under the Police Services Act beginning in 1991.  It was his responsibility to receive and review allegations of misconduct by members of the service. If he concluded that there should be a prosecution, he would draft the charges, obtain his unit commander's approval, and take them to a signing officer to sign off.  The officer who was the subject of the charge was then required to appear before the Police Services Tribunal.  Dalziel would then prosecute the charges.  Dalziel exercised these responsibilities in the case of Bainard and Molloy.

¶ 52      Following the laying of criminal charges against Bainard and Molloy, it was decided that Dixon would prepare the discipline brief.  Ultimately, Dalziel received a copy of it.  It was identical to the criminal prosecution brief. Dalziel conducted no investigation of his own.  It was his responsibility to review the investigation done by Dixon and determine whether or not there were breaches of the code of conduct, and whether discipline charges should be laid.  He applied a standard of "clear and convincing evidence."  Dixon made no recommendation concerning the possible discipline charges.  Dalziel decided that charges should be laid, and drafted the charges.  On April 20, 1995, the following disciplinary charges contrary to the Code of Conduct (Reg. 927, R.R.O. 1990 as amended) were laid against Bainard and Molloy pursuant to s. 56(a) of the Police Services Act:

¶ 53      These charges were stayed shortly after they were laid pending the resolution of the criminal prosecution against Bainard and Molloy.

¶ 54      On April 12, 1996, Bainard and Molloy were ordered to stand trial on the criminal charges.

¶ 55      On February 8, 1998, Jennings J. ordered the criminal charges stayed due to post-charge delay.

¶ 56      On or about July 17, 1998, Dalziel decided that the disciplinary charges against Bainard and Molloy should proceed.  They were required to appear before the Tribunal on September 8, 1998, to set a date for a hearing.  Dalziel explained that the practice was that if a matter was dealt with on its merits in a criminal forum, and all of the police evidence was placed before the court, and the officers were found credible, the disciplinary charges would not proceed. In addition, if the criminal court concluded that the force used by a police officer did not amount to an offence, the disciplinary charges would not proceed.  Apparently, a determination that the constitutional rights of the officers had been violated merited no such deference.  Dalziel said that he felt that it was still fair to restore the disciplinary proceedings.

¶ 57      On December 3, 1998, the officers brought a motion before Superintendent Kelly, the designated Trials Officer, for an order staying the proceedings as an abuse of process within the meaning of s. 23 of the Statutory Powers Procedure Act.

¶ 58      After full argument was made by counsel for the officers, and after Bainard had testified very briefly (his evidence occupies exactly two pages of the transcript of the proceedings), Dalziel conceded that "it would be contrary to the laws of natural justice and fundamental justice to proceed" with the hearing.  Dalziel said that he took this position at the last moment on the basis of the totality of the evidence.  He conceded that the only thing that was "new" on December 3 was that Bainard gave sworn evidence.  I can identify nothing in Bainard's brief evidence that was not known to Dalziel before Bainard testified.  Dalziel did not ask Bainard a single question in cross-examination.  I can only conclude that Dalziel conceded his case because he saw the handwriting on the wall.

¶ 59      Superintendent Kelly dismissed the charges against the two officers.  In the course of his reasons, he stated:

ANALYSIS

¶ 60      It is important to note that the claims of malicious prosecution, negligence and negligent investigation advanced by the plaintiffs relate to the service offences, and not to the criminal charges.  In view of the close connection between the criminal and service prosecutions, however, it is impossible to analyze the service charges without examining the criminal charges.  While my analysis will include a consideration of both, I will not lose sight of the fact that liability arises, if at all, only from the investigation and prosecution of the service offences.

Malicious Prosecution

¶ 61      An action for malicious prosecution lies not only in relation to criminal prosecutions, but also in the case of professional discipline hearings.  (See Stoffman v. Ontario Veterinary Association (1990), 73 O.R. (2d) 737 (Div. Ct.)  A hearing to determine whether a police officer is guilty of misconduct pursuant to s. 60 of the Police Services Act is no exception.

¶ 62      The essential elements of the tort of malicious prosecution are well known.  In Nelles v. Ontario (1989), 60 D.L.R. (4th) 609 at p. 639 (S.C.C.), Lamer J. (as he then was) stated:

¶ 63      I will deal with each of these elements in turn.

(a)  Were the Proceedings Initiated By the Defendants?

¶ 64      The caselaw has expanded the category of persons who may be said to have initiated a proceeding beyond what the strictures of criminal procedure might suggest.  Fleming, in his ninth edition of The Law of Torts (1998), notes at p. 677, "[a] defendant may be liable not only for initiating, but also for adopting or continuing proceedings."  Indeed, it would appear that that has been the law in Ontario at least since 1919.  In Jewhurst v. United Cigar Stores Limited (1919), 46 O.L.R. 180 at 187 (App. Div.), Meredith C.J.O. included in his list of matters to be determined by the jury in a malicious prosecution action the question "[w]hether the defendant instituted or carried on the proceedings maliciously." Similarly, in the case of a police investigator, it is not only an officer who swears an information who may be said to initiate the process.  Other officers who are sufficiently connected to the laying of the charge or the carriage of the prosecution once begun may also be liable.  But what are the contours of a connection that is sufficient to attract liability?

¶ 65      In Carpenter v. MacDonald (1978), 21 O.R. (2d) 165 at 183 (Dist. Ct.), Smith D.C.J. stated:

¶ 66      In Berman v. Jenson (1989), 77 Sask. R. 161 at 166 (Q.B.), the following passage from Corpus Juris Secundum was quoted with approval:

¶ 67      These statements were adopted by Ground J. in Wiche v. Ontario, [2001] O.J. No. 1850 (Sup. Ct.), and I adopt them as well.

¶ 68      In this case, there can bee no doubt that Dalziel initiated the proceedings against the defendants.  Counsel for the defendants did not suggest otherwise.  Although Dalziel did not issue the service notices personally, he reviewed the investigation done by Dixon, determined that the defendants had committed breaches of the code of conduct, decided that discipline charges should be laid, selected the precise charges and drafted them.  Dixon made no recommendation concerning the possible charges.  Most significantly, he decided that the charges should be continued after the criminal charges were dismissed.

¶ 69      The question whether Dixon is sufficiently connected to the laying of the service charges or with the carriage of the service prosecution to be considered to have initiated the proceedings is far more difficult to answer.  It is beyond dispute that she initiated the criminal proceedings. She investigated the defendants, reached the conclusion that they should be charged, and swore the information.  But her connection to the service prosecution is far more peripheral. It is of course true that the results of her investigation formed the basis for these charges.  She prepared a package for the Professional Standards Review Committee prior to the laying of the criminal charges, but this document makes no recommendation about service charges.  While that document and the Crown brief that Dixon prepared for the criminal prosecution provided the factual underpinning for Dalziel's decision to prosecute, she played no role in that decision. She had no input into the decision, made no recommendation and provided no guidance.  Nor was she consulted when Dalziel made the all-important decision to continue the prosecution after the criminal charges were stayed.  She was completely outside the decision-making loop throughout.

¶ 70      In these circumstances, it cannot be said that she was "actively instrumental in putting the law into force by advising on the swearing of the information and in the instructing of the Crown Attorney".  Nor can it be said that she engaged in "affirmative action by way of advice, encouragement, pressure, etc., in the institution, or causing the institution, of the prosecution, or in affirmatively encouraging its continuance after it has been instituted".

¶ 71      Accordingly, I conclude that Dalziel initiated the proceedings against the defendants, and that Dixon did not.

(b)  Were the Proceedings Terminated in Favour of the Plaintiffs?

¶ 72     Obviously, they were.

(c)  Was There Reasonable and Probable Cause for the Proceeding?

¶ 73      As I have indicated, the plaintiffs claim only that the discipline proceedings were malicious.  But since the discipline charges find their genesis in the criminal charges, I find it helpful in considering this issue to begin by examining the criminal charges.  I will consider them and the discipline charges in turn.

      The Criminal Charges

      (i)  Assault

¶ 74      Both plaintiffs were charged with assault.  Dixon said that she formed an honest belief that the two officers assaulted Rokka, based on the statements of the three civilian witnesses.  While acknowledging that there were inconsistencies in their stories, and no confirming evidence, she said that the essence was still there:  Rokka did no threaten the officers; he did not struggle; and the officers assaulted him.  She discounted Rokka's denial as stemming from confusion.  The absence of any apparent injury in the mugshot and videotape of Rokka, and the absence of evidence of injury from the jail, in her view, did not mean that there was no assault, although she conceded that she had expected there to be some facial cuts or bruises.  She was aware that Row saw no injury; that Rokka made no complaint; that Rokka testified at his trial that there had been a scuffle; that Rokka had an extensive record including assault and assault police convictions, had difficulty with the police, could be violent and was arrested under similar circumstances in 1984; that the dispatch records supports the officers version of events; and that Clements had recommended that the matter be dropped. None of this changed her mind.

¶ 75      With respect to charging Bainard with assault, Dixon acknowledged that Moore said that Molloy acted alone; that Jeanjacques said that Molloy assaulted Rokka while several other officers held him; and that while Smithwick said that "they" started banging the front of his head on the car, she went on to say that she wasn't sure whether it was one or two officers that were banging his head.  She nonetheless thought that it was a responsible decision to charge Bainard.

¶ 76      I find it astounding that Dixon charged Molloy with assault, and that Crown counsel proceeded to trial, based solely on the evidence of the three civilian witnesses, despite the frailty of that evidence, and despite the fact that all the remaining evidence pointed in a different direction.  I have in mind, in particular, the following. First, there is the problem of inconsistency in the three civilian accounts.  The differences between the three civilian accounts of Molloy's assault, contrary to the view of Dixon, cannot simply be dismissed as the "badges of truth" that are often mentioned to explain differences in the recollection of minor details of an event by honest and reliable witnesses. Rather, they raise serious concerns at least about the evidence of Jeanjacques.  They demonstrate that Jeanjacques' account is either fabricated, or at least the delusion of a man with a grudge against the police.  No one but him recalls several officers engage in a beating of Rokka.  No one but him saw blood.  These are crucially important details that cannot be explained by the passage of time and the frailty of memory. It is impossible to understand how Dixon could describe all three witnesses, that is, Jeanjacques as well as Moore and Smithwick, as "solid citizens who appear credible."  By no reasonable standard can Jeanjacques be described as appearing credible.  The differences between the versions of Moore and Smithwick, however, do not raise similar concerns.  Their frailty arises elsewhere.

¶ 77      Next, there is the problem of inconsistency with the other evidence.  In essence, as Dixon notes, the civilian witnesses say that Rokka was unthreatening, neither brandishing a broken bottle nor otherwise resisting arrest, but that Molloy, unprovoked, administered a brutal beating, banging Rokka's head repeatedly against the hood of the police car.  The problem with these accounts, as I have suggested, is that every other piece of evidence suggests that their version is in error in respect both of Rokka's actions and Molloy's response.  I refer to the following:

¶ 78      Having regard to the totality of the evidence, it is clear to me that there was no reasonable prospect of Molloy being convicted of assault.  But that is not the test for the existence of reasonable and probable cause.  The following definition of reasonable and probable cause was approved in Nelles v. Ontario (1989), 60 D.L.R. (4th) 609 (S.C.C.):

¶ 79      In other words, the prosecutor must believe that the accused is guilty, and that belief must be reasonable.  I do not doubt that Dixon believed that Molloy was guilty; but was that belief reasonable?  Undoubtedly, where a complainant in a position to know the facts reports to a police officer that he or she observed a particular individual commit a crime, and the police officer believes the complainant, the police officer has reasonable and probable grounds and is justified in laying an information.  (See Oniel v. Marks (2001), 195 D.L.R. (4th) 59 at 66 (Ont. C.A.)).  There is no obligation on a police officer to weigh and determine the validity of various versions of events and render judgment before arresting or charging an accused.  (See Wiles v. Ontario, [1997] O.J. No. 6274 (Div. Ct.)).  But what if, in the course of the investigation, every other piece of evidence suggested that the complainant was wrong.  Would it remain reasonable to believe that the accused is guilty based on the complainant's evidence?  The answer, I think, must depend on the strength of the competing evidence.  While the police officer is not expected to try the case, at some point it can become so apparent that the complainant is in error that it is unreasonable to continue to believe that complainant.   In this case, the evidence approaches this point, but does not reach it.  I say this because, while I profoundly disagree with Dixon, I cannot say that it was unreasonable for her to maintain her belief in the complainant's version of events despite the competing evidence, having regard to the fact that three "solid citizens", as she put it, all agreed that Molloy assaulted Rokka.

¶ 80      What about Bainard?  Here Dixon's position is more problematic.

¶ 81      As I noted, Dixon testified that she had an honest belief that Bainard also assaulted Rokka.  I emphasize that she did not suggest that Bainard was a party to Molloy's assault, but rather that he committed his own assault.  That belief could only come from the statement of Smithwick.  To reiterate, Smithwick said that she was in the laneway on July 5, 1990, and saw Rokka sitting "peacefully", with a bottle. She left briefly.  When she returned, she saw the officers dragging Rokka to their car.  "They" then started banging the front of his head on the car.  She said that she thought that they were going to kill him.  She went on to say that she wasn't sure whether it was one or two officers who were banging his head.  Dixon testified that when she spoke to Smithwick, Smithwick "implied" that both officers were involved, and based on this, she changed Bainard's status in the investigation from a "witness officer" to a "suspect officer", and, of course, ultimately charged him with assault. Once again, I do not doubt that Dixon honestly believed that Bainard assaulted Rokka.  But this belief was patently unreasonable.  It was not "founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead a cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." Whatever possibility respecting Bainard might arise from Smithwick's comments that "[t]hey then started banging the front of ... [Rokka's] ... head on the car", it can rise no higher than a possibility when Smithwick concluded that she wasn't sure whether it was one or two officers who were banging his head.  In the absence of confirming evidence, if Smithwick wasn't sure, no one else can be.  The totality of the circumstances, assuming them to be true, could not reasonably lead a cautious man, placed in the position of Dixon, to the conclusion that Bainard was probably guilty of the crime imputed.

¶ 82      I note that counsel argued that reasonable and probable cause did exist to conclude that Bainard was a party to an assault by Molloy.  The short answer to this is that it simply was not what Dixon alleged.  In any event, in my view, such an allegation is equally unsound.  There is absolutely no basis upon which a reasonable person could conclude that Bainard did anything for the purpose of aiding Molloy to commit an assault.  If there was an assault, it was obviously unplanned and unanticipated, and brief in duration.  If Bainard were restraining Rokka when the assault began, it would have assisted Molloy in the commission of the offence. But on no view of the evidence could it be imagined that Bainard was restraining Rokka for that purpose.  He was restraining him because he was in the process of arresting him.

      (ii)  Obstruct Justice

¶ 83      As I noted, the obstruct justice counts were meant to encompass misleading testimony at Rokka's trial on the part of Bainard and Molloy, as well as their failure to tell the prosecutor about the civilian witnesses.  Once it is accepted that there was reasonable and probable cause to believe that Molloy assaulted Rokka, then it follows that there was reasonable and probable cause to believe that both officers misled the Court at Rokka's trial with respect to the details of the arrest of Rokka.  This justifies the obstruct justice charge against both officers although, obviously, I view the wisdom and fairness of these charges in the same manner as I view the assault charge against Molloy.  While it is not necessary to examine the second aspect of the obstruct justice charges, because that aspect grounds some of the discipline charges, and because Dixon considered it to be the more important aspect of the charge, I will examine it as well.

¶ 84      In my view, the allegation that the two officers were guilty of obstructing justice because they failed to notify Crown counsel about the civilian witnesses is mind-boggling.  The first thing the most unimaginative and inexperienced investigator would do in trying to discover whether the officers told Crown counsel about the civilian witnesses, I say with supreme confidence, would be to ask Crown counsel who prosecuted Rokka if Bainard and Molloy told him about the civilian witnesses.  This did not appear to occur to anyone involved in the investigation or prosecution of this case.  In addition, or as an alternative, counsel for Rokka might have been asked if he was told about the civilian witnesses.  That did not occur to anyone either.  Instead, Dixon grounded her case on the absence of reference to the civilian witnesses in the will-say statements of the two officers, and the fact that Yorke, the officer in charge of the case, when asked for the first time on August 5, 1994, more than four years after the arrest, if he was aware before Rokka's trial that there were three independent witnesses to Rokka's arrest, said that he was not.  Based on the evidence known to Dixon, it is impossible to say that the totality of the circumstances, assuming them to be true, could reasonably lead a cautious man, placed in the position of Dixon, to the conclusion that Bainard or Molloy probably did not advise Crown counsel about the civilian witnesses.

¶ 85      But that is not all that is wrong with this prong of the obstruct justice charge.  In my view, the entire theory of the charge is absurd.  It is premised on the notion that all police officers who become aware, in the course of their duties, that civilians witnessed a crime, have an obligation to bring that fact to the attention of Crown counsel, either through will-say statements or otherwise, failing which, they are guilty of obstructing justice.  In this case, Clements, the officer assigned to investigate the civilian complaints, Knowlton, the officer in charge at 32 Division that day, and Nowitski also all knew about the complaints, as did Constables Moore, Stanley, Moynagh and Row.  None of them apparently told Yorke or the Crown about the civilian witnesses.  One cannot help but wonder, on Dixon's theory of obstruction of justice, why each of these officers were not co-accused with Bainard and Molloy.  Only Yorke apparently managed to remain in ignorance of the existence of the civilians.  Indeed, to follow Dixon's theory to its logical conclusion, in every case, each officer with knowledge of the case should be busily including in a will-say statement a list of every other person that he or she is aware of that witnessed the crime, for fear of being charged with obstructing justice for failure to do so.  The theory need be no more than stated than to be dismissed.

¶ 86      But even if one accepts that there was a basis to conclude that Bainard and Molloy failed to advise either Yorke or the Crown of the civilian witnesses, and that there is a general obligation on all police officers to do so, it is still impossible to argue that there was an obstruction of justice in this case.  Since neither Bainard nor Molloy were responsible for preparing the Crown brief or instructing Crown counsel in this case, they could only be guilty of obstructing justice if their failure to mention the civilian witnesses not only tended to prevent or obstruct the course of justice, but also was done for that purpose.  (See R. v. May (1984), 13 C.C.C. (3d) 257 (Ont. C.A.), leave to S.C.C. refused, 6 O.A.C. 269n, [1984] 2 S.C.R. viii.).  No reasonable person could imagine that Bainard and Molloy failed to mention the civilian witnesses in their will-say statements for the purpose of preventing or obstructing the course of justice.  I say this because the presence of the civilians was no secret.  In was not within the power of Bainard and Molloy to suppress this information, and they knew it.  They knew that their superiors were aware of the civilians, specifically Knowlton.  They knew that the other officers who arrived at the scene of the crime were aware of the civilian witnesses.  They were aware that complaints had been made, and that they were the subjects of a Complaints Bureau investigation.  They even knew that the officer conducting that investigation was in the courtroom at Rokka's trial.  The idea that they were covering up the existence of the civilian witnesses, for any purpose, is absurd.  The totality of the circumstances, assuming them to be true, could not reasonably lead a cautious man, placed in the position of Dixon, to the conclusion that Bainard or Molloy were probably guilty of obstructing justice on this basis.

¶ 87      In view of what I said about the assault charge against Molloy, I find it impossible to say that there did not exist reasonable and probable cause for this discipline charge, although I consider it equally unwise and unfair.  I note that Dalziel did not share Dixon's view that Bainard should be charged with doing violence to Rokka.

¶ 88      If there was reasonable and probable cause to believe that Molloy assaulted Rokka, then it is hard to resist the conclusion that there was reasonable and probable cause to charge Molloy and or Bainard with each of these offences.

¶ 89      For the reasons outlined with respect to the second prong of the obstruct justice charge, I conclude that there was not reasonable and probable cause for this charge.

¶ 90      I have expressed the view that in those cases where there was reasonable and probable cause for criminal charges, nonetheless I feel that the charges were unwise and unfair.  In the case of the discipline charges, I have concluded that there was reasonable and probable cause for all but one of the charges.  In respect of these charges, I am of the view that they were equally unwise, and even more unfair. To revive and continue these charges after the criminal charges had hung over the heads of the two officers for nearly eight years, and the discipline charges had hung over their heads for more than eight years, and after a finding that the police had violated the constitutional rights of the two officers, borders on vindictive.  In my view, Dalziel made a decision that is shocking, to say the least.

(d)  Malice

¶ 91      The remaining question is this:  in deciding to prosecute Bainard and Molloy for failing to advise the officer in charge or Crown counsel that three independent witnesses gave an account that conflicted with his, was he motivated by malice?  In other words, did he bring this charge forward out of ill will or vengeance, or for some other improper purpose? Despite the harsh words I have used about Dalziel's exercise of discretion in continuing the discipline charges, I cannot conclude that he continued this one charge out of malice. Since I have concluded that there was reasonable and probable cause for all of the other discipline charges, I find it impossible to imagine that he included one extra charge for some improper purpose.  The very fact that he, unlike Dixon, chose not to allege that Bainard assaulted Rokka, goes some distance in demonstrating that he was not proceeding in bad faith.  In fact, having observed Dalziel testify, I can only conclude that he honestly but mistakenly believed that he was doing the right thing.  I have said that his decision to proceed on this charge borders on vindictive.  But I cannot go the extra step and conclude that Dalziel was in fact vindictive.

¶ 92      There is no need to consider whether Dixon was acting with malice in deciding to charge Bainard with assault. Having concluded that she laid this charge in the absence of reasonable and probable cause, and having criticized her for proceeding with the charges at all, however, I owe it to her to say that she lacked malice if that is my conclusion.  In fact, that is my conclusion.  Like Dalziel, I am completely satisfied that she believed that she was doing the right thing in proceeding with the criminal charges.  She had no improper purpose.

(d)  Conclusion Regarding Malicious Prosecution

¶ 93      Having regard to what I have said in the preceding paragraphs, I conclude that the allegation of malicious prosecution fails.

Negligence and Negligent Investigation

¶ 94      The plaintiffs argue that both Dixon and Dalziel are liable for negligence in their roles in the investigation and prosecution of the officers.  They did not, the plaintiffs say, carry out their duties as reasonable police officers would in the same situation.  In their amended statement of claim, the plaintiffs plead that Dixon was negligent in her conduct of the investigation of the plaintiffs, and Dalziel was negligent in continuing the prosecution on and after December 3, 1998.  In argument, counsel for the plaintiffs emphasized the following:

¶ 95      I will begin with the claim of negligent investigation against Dixon.  It is clear as a result of Beckstead v. Ottawa (1997), 37 O.R. (3d) 62 (C.A.), that a police officer conducting an investigation owes a duty of care to a person who is a subject of that investigation.  Dixon owed the plaintiffs the standard of care of a reasonable police officer.  This does not mean that the investigation must be "a paradigm of perfection."  (See Wiche v. Ontario, [2001] O.J. No. 1850 at para. 64 (Sup. Ct.))  In this case, while I disagree with the conclusions reached by Dixon, I can only characterize her investigation as remarkably thorough.  I can only fault her investigation for two things.  First, given the incredible delay before she was assigned the file, she ought to have given this matter greater priority, and completed her investigation more quickly, and second, I consider it to be a significant lapse in judgment that she failed to interview Crown counsel who prosecuted Rokka.  I am far from critical of her decision not to advise the civilian witnesses of the conflicts in their accounts of the arrest; indeed, I think she was right not to do so.  Since she had no role in the decision to prosecute or even to recommend prosecution of the discipline charges, I consider the other points made by the plaintiffs to be irrelevant.  In the end, I cannot find that her investigation fell below an acceptable standard for investigations of this type.

¶ 96      Turning to the claim against, Dalziel, I confess that I find it difficult to see how I can give effect to a claim of negligent prosecution, if such a tort exists, after finding that there was reasonable and probable cause for seven of the nine charges prosecuted.  While I disagree with his exercise of discretion, I cannot find him negligent.

¶ 97      In view of the conclusions I have reached, I need not address several other issues raised by the parties, particularly certain interesting issues relating to immunity and limitation periods.  I must nevertheless express my gratitude to counsel for the most helpful arguments they advanced in relation to all of the issues, and the professional manner in which they conducted this trial.

CONCLUSION

¶ 98      In the end, while I find that Dixon and Dalziel were over-zealous, dogmatic and blinkered in their approach to the investigation and prosecution respectively of the plaintiffs, I am unable to find any liability for malicious prosecution or negligence.  As a result, there can be no liability on the part of the Toronto Police Services Board. The action is dismissed.

¶ 99      The parties may make written submissions as to costs within thirty days of the release of this judgment.  I am sure they will be guided in their submissions in this unusual case not only by the result, but by the view I have taken of the fairness of the conduct of the defendants and of the prolonged proceedings brought against the plaintiffs.

DAMBROT J.

QL Update:  20020719
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