The plaintiff's claim related to drug charges laid against
him following two lengthy police investigations. The
plaintiff's claim specifically attacked the validity of two
wiretap authorizations obtained by the defendant police services,
alleging that police had targeted him and deliberately lied in
order to obtain the authorizations.
The Court had to consider how wiretap authorizations can be
challenged in the civil, not criminal, context. All parties agreed
that the authorizations ought to be reviewed using the test set out
in R. v. Garofoli,  2 SCR 1421,
the leading Supreme Court of Canada decision with respect to the
validity of wiretap authorizations. The Court held that a finding
upholding the authorization would defeat the plaintiff's claim
for damages. However, in the event that the authorizations ought
not to have been issued, the Court held that this would not,
"on its own, result in a successful claim of negligence."
Rather, the Court would then need to:
consider the individual impugned acts
to decide if they constitute negligence within the meaning of the
[Hill v. Hamilton-Wentworth Regional Police
Services Board,  3 SCR 129] test. As the court in
Hill notes, a suspect is not entitled to a perfect
investigation and it is to be expected that the police will make
errors as part of the evidence gathering process. It is only if the
plaintiff proves that those errors fall outside the scope of
reasonableness as identified in Hill that he succeeds.
The Court reviewed the common law principles arising from the
Garofoli decision with respect to the review of wiretap
authorizations. The Court noted as follows:
The reviewing judge does not conduct
a de novo hearing of the validity of the authorization but
considers the record that was before the authorizing judge and
decides whether the record, amplified on review, discloses
sufficient evidence on the basis of which the judge could have
issued the authorization;
The starting point in reviewing an
authorization is that it is presumptively valid and the onus lies
on the plaintiff to establish invalidity;
It is only if the reviewing judge
concludes that there was no basis upon which the authorizing judge
could be satisfied that the conditions for granting the
authorizations existed, that the authorization would be held to be
A judge is not deciding whether
allegations outlined in the [Information to Obtain or
"ITO"] are actually true but whether the affiant had a
"a reasonable belief in the existence of the requisite
statutory grounds"; and
The existence of errors within the
ITO is not sufficient, of itself, to constitute an invalid
authorization or breach of the Charter — any
errors found within the ITO are excised. The reviewing judge then
ascertains whether, after the excisions, sufficient material
remains to justify the issue of the authorization.
Applying the above principles, the Court found that both of the
wiretaps were validly authorized. All of the plaintiff's causes
of action relating to the wiretaps were accordingly dismissed. This
decision is one of the first cases addressing allegations of
investigatory negligence in the context of wiretaps.
The Court went on to consider the balance of the plaintiff's
allegations which largely related to claims of assault and battery
for injuries allegedly sustained during the course of his arrest.
The Court noted that in circumstances where officers have
reasonable grounds to believe a firearm is involved, they are faced
with heightened sense of danger and must think and act quickly.
Accordingly, when "reviewing an arrest, ex post facto, a court
cannot expect an officer to have precisely calculated the precise
amount of force to be used in subduing a person."
The Court found the testimony of the defendant officers more
credible than that of the plaintiff. Accordingly, the
plaintiff's claims for assault and battery were dismissed.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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