Docket: T-1752-06
Citation:
2015 FC 66
Ottawa, Ontario, January 16, 2015
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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GARY SAUVE
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Plaintiff
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and
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HER MAJESTY THE QUEEN
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IN RIGHT OF CANADA,
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MARC FRANCHE (RCMP),
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LARRY TREMBLAY (RCMP),
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Defendants
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JUDGMENT AND REASONS
[1]
This is an action for damages brought by Gary Sauve against the federal Crown and two members of the Royal Canadian Mounted Police
[RCMP], Marc Franche and Larry Tremblay.
Mr. Sauve claims general damages for, among other things, stress,
anxiety, emotional trauma, pain and suffering, loss of reputation, loss of
enjoyment of life, and harassment, all said to be caused by the negligence of
the Defendants and by his wrongful detention at their hands.
[2]
Most of Mr. Sauve’s Statement of Claim was
previously struck out on the basis that the allegations were an attempt to
relitigate Mr. Sauve’s earlier convictions for criminal harassment and
were, therefore, an abuse of process. What remains for determination on the
pleadings are allegations in tort concerning Mr. Sauve’s “detention” on October 8, 2004 and, also the actions of two RCMP officers who served him with a subpoena at the Ottawa Carleton
Detention Centre [OCDC] on November 22, 2004. Additionally, as a consequence of the latter event, Mr. Sauve asserts that it was necessary to retain his
own legal counsel to protect his legal interests and he seeks additional
compensation for the legal fees he incurred.
I.
Factual Background
[3]
Mr. Sauve worked for more than 18 years with the RCMP as a police officer.
He was subsequently dismissed from this employment for conduct connected to the
matters in issue in this proceeding. At the root of Mr. Sauve’s troubles
was an allegation that he had fathered a child with a woman in Quebec. In a paternity proceeding related to that allegation, Mr. Sauve was ordered to
provide a DNA sample. He refused to comply and challenged the legality of the
court order on appeal. His appeal was unsuccessful and leave to further appeal
the matter to the Supreme Court of Canada was sought. It appears that Mr. Sauve was vexed by these proceedings and angry with both the complainant and her legal
counsel. As a result, he wrote a letter to the Supreme Court of Canada containing
explicit threats of harm to both individuals (Exhibit D5). This letter quickly
came to the attention of the RCMP, and Mr. Sauve’s senior officer, Mr. Tremblay, was tasked to investigate.
[4]
On October 8, 2004, after reviewing Mr. Sauve’s letter, Mr. Tremblay asked Mr. Franche to contact Mr. Sauve and to request his attendance at the detachment office under the pretext of
overtime work. Because he believed Mr. Sauve’s conduct had potential
criminal implications, Mr. Tremblay also asked the Ottawa Police Service to
consider that aspect of the matter.
[5]
When Mr. Sauve arrived at the detachment
office, he was met by Mr. Tremblay, Mr. Franche and Corporal Stephan Demers (now retired). Mr. Demers was brought in by Mr. Tremblay as a member
of the RCMP employee assistance program for Mr. Sauve’s benefit. A discussion
with Mr. Sauve ensued about the content of his letter. Mr. Sauve was asked to surrender his firearm and he did so without complaint. When Mr. Sauve expressed an intention to leave the office, Mr. Tremblay ordered him to stay
and he complied. Within the next two hours the Ottawa Police Service arrived
and placed Mr. Sauve under arrest. According to Mr. Sauve, Mr. Tremblay acted without lawful authority in ordering him to remain in the detachment office.
It is this occurrence that Mr. Sauve alleges constitutes an unlawful
detention.
[6]
Mr. Sauve was charged by the Ottawa Police Service with two counts of
criminal harassment and two counts of uttering death threats. He was placed on
remand at the OCDC where he remained for 5 months pending his criminal trial.
Because of Mr. Sauve’s RCMP status, he was held in protective custody and
away from the general inmate population for the duration of his remand. Mr. Sauve was tried in the Ontario Court of Justice and on March 7, 2005, was found guilty of two counts of criminal harassment. The two charges of uttering death
threats were dismissed. Mr. Sauve was given a custodial sentence
equivalent to the time served on remand and placed on probation for 3 years.
He was also banned from possessing a firearm for 10 years. Mr. Sauve’s convictions and the sentence were appealed to the Ontario Court of Appeal.
That appeal was dismissed on December 14, 2007.
[7]
During the period of Mr. Sauve’s remand
detention, he was held in protective custody. This meant that he was held for
23 hours each day in a segregation cell. Although he was entitled to one hour
of daily activity outside of his cell in the presence of other protective
custody inmates, it seems that he mostly declined that opportunity.
[8]
On November 22, 2004, Constable Stephane Cadieux and Constable Craig Sorrie went to the OCDC to serve Mr. Sauve with a Notice
of Production requiring his attendance as a witness to give evidence in an Ottawa criminal trial. Constable Cadieux and Constable Sorrie were escorted to Mr. Sauve’s cell where a discussion took place about the need for his attendance.
According to Mr. Sauve this meeting effectively “outed”
him as a police officer to jail officials and to the inmate population and
placed him at personal risk. This is the matter that Mr. Sauve
characterizes as negligent. Incidental to this allegation is a claim by Mr. Sauve for reimbursement for the expense of hiring his own lawyer when he gave evidence
in the related criminal trial.
II.
Analysis
[9]
Notwithstanding the evidence tendered in this
case by both parties in connection with the underlying civil paternity case and
Mr. Sauve’s related criminal convictions, I am obliged by law to treat
the outcome of those cases as final and determinative. As Justice Anne Mactavish noted in Sauve v Canada, 2010 FC 217 at para 32, 186 ACWS (3d) 66,
it is not open to this Court to reconsider the matter of Mr. Sauve’s criminal conviction. That determination is final. In particular, I have no
authority to question the finding of the criminal trial court that Mr. Sauve wrote and delivered Exhibit D5 to the Supreme Court of Canada and that, in so
doing, he committed the offence of criminal harassment. The only issue that
remains open for determination by me is whether the actions of the Defendants
in response to Mr. Sauve’s proven misconduct were unlawful and compensable
in damages.
[10]
Notwithstanding the above evidentiary
limitations, Mr. Sauve repeatedly attempted to contradict the findings of
the criminal court. In particular, he expressed some doubt about whether he
actually authored Exhibit D5 and he categorically denied sending it to the
Supreme Court of Canada. Indeed, he accused Mr. Tremblay of sending the
letter, motivated by a personal vendetta.
[11]
As noted above, these are matters that are
relevant only to Mr. Sauve’s credibility and, in that regard, his evidence
did not assist his cause.
[12]
Any fair reading of Exhibit D5 leads to the
obvious conclusion that Mr. Sauve was its author and that he was
expressing a clear intent to cause harm. Among other passages, the letter
contains the following threatening statements:
I made a promise on my mother’s grave, THEY
will pay me one way or the other. AND should the courts fail to remedy this situation
and stop this harassment and abuse; I will have no other alternative but to
take the law into my own hands. One thing is for sure; either the courts are
going to send out a clear message that this will not be tolerated OR I will send
one very clear and very loud that people will be examining and talking about
this case for the next 25 years.
…
**Should the Supreme Court of Canada fail to stop the harassment by
these vindictive people and send a clear message that the courts will not be
used / abused to get back at someone; I will not have any choice but to take
the law into my own hands. Don’t worry, if these individuals think that they
can destroy my family, abuse my rights, etc... and get away with it; THEY are
in for the shock of their lives. I will send a very clear and loud message to
them personally that when you criminally frame someone and destroy their lives
and others, YOU MUST BE HELD ACCOUNTABLE. And if the courts can’t do this; don’t
worry, I will. There is nothing more you can take away from a person that is ready
to die and who has lost everything; namely, his family, pride, all his savings
and all he worked all his life for = his 1ife.**
The only question one should ask themselves; is
he stupid enough to go out alone. I only hope that their lives and my life were
well worth all of this at the end, which is coming up sooner than we think.
[13]
Mr. Sauve’s attempt before me to distance himself from these threats was
disingenuous. His related testimony was virtually incoherent and it was
throughout inconsistent and implausible. He initially said in direct
examination that he did not send Exhibit D5 “because I
would not have faxed a letter that was a draft” (see p 20 and
pp 31-32). Under cross-examination, he accused Mr. Tremblay of sending
the fax (see p 66). His further testimony at pp 67-68 was
deliberately evasive:
Q. This is one
of the letters that you composed for the purpose of transmittal to the Supreme Court
of Canada
A. No, of
course not.
Q. You did not
type this --
A. This was not
sent to the Supreme Court of Canada. I didn’t fax this document.
Q. I didn’t say
you did. What I’m asking is did you compose this letter?
A. I don’t know
because there’s no signature. My signature is not on here and it’s been faxed. It’s
been faxed from the RCMP drug unit and it’s been faxed at a time that I was in
the briefing room, so I know for a fact that it was faxed while I was someplace
else.
Q. So you’re
denying authorship of this letter?
A. I’m not
denying authorship. This happened how many years ago? But I’m just telling you,
if this document was faxed, it’s not me that faxed the document.
Q. I’m not
asking whether you faxed it at this point. I’m asking whether or not this is a
document that you authored. Did you write this?
A. I don’t
know.
Q. I understood
you to say that you acknowledge composing two documents, one which was a draft
and one which was intended as a final version - -
A. Correct,
yes.
Q. - - to be
sent to the Supreme Court of Canada.
A. Yes.
Q. So my question
is, are we looking at one of those two documents now?
A. You’ve got
two questions there.
Q. The document
we are looking at now under tab 9, is that the draft that you prepared for transmission
- -
A. This appears
to be a draft.
Q. Okay.
Prepared by you.
A. Possibly by
me, yes.
He later attempted to explain away his
previous testimony where he had admitted sending Exhibit D5 to the Supreme
Court of Canada. He did this by saying that Mr. Tremblay had convinced him of his
culpability (see p 75):
A. I believe
that I faxed the document because Larry Tremblay had told me that I had
faxed a document to the Supreme Court of Canada. Having looked back at it, it
was impossible for me to have faxed the document because the document -- I
found the document in my pigeonhole which is in a locked room at the back. Had
I faxed that document, I would have had to return to my - - I would have gone
to my desk and would have placed this in the desk. The pigeonhole is usually
what you remove from, that you receive, not that you go and put in there.
Having said that, I
did not fax the document. Somebody else did, and then they put it in the
pigeonhole and I then received it. So therefore, you would not walk by your
desk and go throw it in a pigeonhole to later retrieve it from your
pigeonhole. So I know for a fact that I did not fax that document.
[14]
All of the above testimony is inconsistent with Mr. Sauve’s evidence in his criminal trial. In that setting, his defence was based on an
assertion that the contents of Exhibit D5 and his intent in sending it has been
misinterpreted or misconstrued.
[15]
Mr. Sauve was not a credible witness. Where his evidence differs from that of
other witnesses, I reject Mr. Sauve’s version. Fortunately, there are not
many points of relevant evidence where there was much disagreement among the
witnesses.
[16]
I accept that Mr. Sauve’s attendance at the
RCMP detachment on October 8, 2004 was obtained by pretext and that, after his
arrival there, he was ordered by Inspector Tremblay to surrender his firearm
and to remain in the office. I also accept that, until the arrival of the
Ottawa Police Service, Mr. Sauve was not formally warned, arrested or spoken to regarding his Charter rights. In the
meantime, Mr. Sauve was asked about Exhibit D5 by Mr. Tremblay and he
offered an explanation. Notes of that discussion were made by both Mr. Tremblay and Mr. Franche. I also accept that Constables Sorrie and Cadieux
attended at Mr. Sauve’s protective custody cell on November 22, 2004 and discussed with him the need for his witness testimony in a pending criminal
trial. It would have been apparent to anyone who overheard their discussion
that Mr. Sauve was a police officer.
[17]
The above facts provide the foundation for Mr. Sauve’s assertion of a claim to civil damages.
[18]
Mr. Tremblay gave the following compelling testimony justifying his decisions
and explaining the authority under which he acted (see pp 75–77):
Q. Chief
Superintendent Tremblay, just a few questions by way
of follow up to questions that my friend asked you.
My friend asked you a
question to more or less why you felt it necessary to call Gary Sauvé into the office pursuant to a guise, that is, not the real reason why you wanted him
to attend in the office but the reason that you gave.
I want to follow up on
that. What were your concerns in not giving Gary Sauvé the real reason for having
him attend?
A. Public
safety. My reason for calling him into the office is I had come to the
understanding that there was a possible threat to himself and others and I wanted
to immediately mitigate that threat. Using a guise to bring him into the office
increased the likelihood that he would come to the office with his weapon
without incident.
Q. Do I take it
from that that you had a concern that if you had not used the guise, there
might have been another consequence or another result?
A. Absolutely.
…
Q. In that
regard did your rank have any role in this? Did your rank relative to Mr. Sauvé have any sort of - - did that play a role in your consideration?
A. My position
as his line officer gave me the authority to (a) cal1 him to the office, (b)
gave me the authority under the RCMP Act to remove his weapon and gave me the authority
to inform him that he was not to leave the office until such time as we were
satisfied that the matter had been dealt with.
Q. In meeting
with Mr. Sauvé in the office in the boardroom where you did meet, my friend
suggested to you that by virtue of asking the questions you were asking him and
making a notation of them that you were in effect taking what she technically
referred to as a police statement. Is that what you were doing?
A. No, it’s
not. I’ve got 30 years of experience as a policeman. If I wanted to take a
police statement, I would have given rights, Charter, police warning and then
taken a statement.
My purpose in engaging
in Constable Sauvé was more to gain a better understand of the immediate threat,
nothing else.
[19]
Mr. Tremblay acted
prudently in bringing Mr. Sauve into the detachment office. The use of the
pretext of overtime to obtain Mr. Sauve’s cooperation was reasonable
because of a very legitimate concern that if Mr. Sauve was forewarned he
might not come in. Mr. Sauve’s emotional stability was clearly in doubt
given the explicit threats set out in his letter. I do not agree with Ms. Letourneau that these concerns were unwarranted because the threat was subject to
the “condition precedent” that it would only be
carried out if Mr. Sauve did not get his way in the pending appeal. The
suggestion that any attribution of common sense and restraint ought to have
been afforded to Mr. Sauve in the face of his attempt to intimidate the
Court and the others involved in his family law case is unwarranted. Mr. Sauve had threatened to take the law into his own hands and he expressed an
unambiguous intent to harm himself and others against who he harboured
grievances. Mr. Tremblay had every right to assume that Mr. Sauve’s
threats were real and that he intended to act on them sooner rather than
later. Mr. Tremblay did not enjoy the luxury of taking his time to reflect on
supposed nuances in Mr. Sauve’s letter. Indeed it would have been
negligent for Mr. Tremblay to have acted with less vigilance or concern for
public safety than he did. His duty was to take Mr. Sauve’s threats at
face value and to ensure that Mr. Sauve was not in a position to carry
them out. He had a responsibility to obtain Mr. Sauve’s attendance and
cooperation and, in particular, to secure Mr. Sauve’s firearm. The best
place to execute this mandate was within the controlled environment of the
detachment office in the presence of other officers including an employee
assistance officer. Mr. Tremblay recognized that Mr. Sauve’s threat had
potential criminal implications and he appropriately turned that matter over to
the Ottawa Police Service for an independent investigation. Mr. Tremblay also understood that the situation carried Code of Conduct ramifications. He had a
responsibility to seek an explanation from Mr. Sauve or, as he put it (see
p 63): “[t]his could have been explained. There could
be an explanation. Maybe I wasn’t aware of all of the facts.”
[20]
In the face of Mr. Sauve’s irrational
behaviour and demeanour, Mr. Tremblay ordered him to remain in the detachment.
Once again, Mr. Tremblay would have been negligent had he failed to act in this
way. By all appearances, Mr. Sauve was mentally unstable and potentially
dangerous.
[21]
I appreciate Ms. Letourneau’s point that Mr. Tremblay’s interaction with Mr. Sauve had some potential to cross-over into the
Ottawa Police Service investigation. However, I accept unreservedly Mr. Tremblay’s stated motive that he was acting in the interests of public safety
(including Mr. Sauve’s safety) and to afford Mr. Sauve an opportunity
to explain what had happened. Mr. Tremblay testified that he was open to an
explanation from Mr. Sauve and, had something sufficiently exculpatory
emerged, the situation could have turned out differently. This was decidedly
not a situation where Mr. Tremblay was attempting to camouflage what was, in
reality, a criminal investigation of Mr. Sauve. Furthermore, anything
that Mr. Sauve told Mr. Tremblay, Mr. Franche or Mr. Demers could not be used against him in any subsequent prosecution: see section 40(3) of
the Royal Canadian Mounted Police Act, RSC, 1985, c R-10.
[22]
In these circumstances, Mr. Tremblay had the
lawful authority under section 40 of the RCMP Act, above, to conduct a disciplinary
investigation and under section 40 of the Royal Canadian Mounted Police Regulations,
1998 SOR/88-361, to order Mr. Sauve to turn over his firearm and to
remain in the detachment until the arrival of the Ottawa Police Service.
[23]
According to Mr. Tremblay, Mr. Franche and Mr. Demers, Mr. Sauve was cooperative throughout and he appropriately abided by Mr. Tremblay’s administrative order. Mr. Sauve was not, at that point, detained or under
arrest. Mr. Sauve simply acquiesced to the order of his superior officer
and he cannot now claim that he was detained.
[24]
In the face of the evidence of Mr. Tremblay, Mr. Franche, and Mr. Demers, I do not accept Mr. Sauve’s testimony
that he was physically prevented from leaving the detachment. Indeed, wherever
Mr. Sauve’s testimony materially differs from that of the other
witnesses, I reject his version. Mr. Sauve was evasive and untruthful on
several points, most notably about his authorship of Exhibit D5. Before me, he
offered a variety of explanations for that letter culminating in the preposterous
accusation that it had been sent to the Supreme Court by Mr. Tremblay. Until this trial, Mr. Sauve had never denied that he wrote and sent
Exhibit D5 to the Supreme Court. Indeed, he admitted doing so under oath
during his criminal trial. When he testified before the Ontario Court of
Justice, his defence was solely based on an exculpatory and self-serving
interpretation of the language he had used in the letter. Even if I was not
bound by the finding of the Ontario Court of Justice, I would not hesitate to
find that Mr. Sauve wrote and sent Exhibit D5 to the Supreme Court and I
reject his evidence to the contrary.
[25]
Even if Mr. Sauve was briefly arrested or
detained beyond the authority provided by section 40 of the RCMP Regulations
without his consent and in furtherance of a criminal investigation, there was ample
legal authority to support such a course of action.
[26]
A brief detention of Mr. Sauve for no more
than 2 hours to allow for the Ottawa Police Service to undertake its criminal
investigation was readily justified under section 42 of the RCMP Regulations to
protect those persons Mr. Sauve had threatened, to protect Mr. Sauve or to otherwise preserve the peace. A brief preventative or investigative
detention was also justified by common law authority and as generally
recognized by section 18 of the RCMP Act, above.
[27]
In R v Mann, 2004 SCC 52, [2004] SCJ No
49, the Court considered the authority of the police at common law to effect
the detention of a suspect for investigative purposes. The Court noted that
there is a general police duty to protect life and property and cited United States authority that a limited right of detention exists in connection with “imminent” criminal activity. The nature and extent of
the detention is required to be measured and reasonable in the circumstances
and weighed against the importance of the public purpose served. The test was
described in the following way:
34 The case law raises several guiding
principles governing the use of a police power to detain for investigative
purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be
premised upon reasonable grounds. The detention must be viewed as reasonably
necessary on an objective view of the totality of the circumstances, informing the
officer's suspicion that there is a clear nexus between the individual to be
detained and a recent or on-going criminal offence. Reasonable grounds figures
at the front-end of such an assessment, underlying the officer's reasonable
suspicion that the particular individual is implicated in the criminal activity
under investigation. The overall reasonableness of the decision to detain,
however, must further be assessed against all of the circumstances, most
notably the extent to which the interference with individual liberty is
necessary to perform the officer's duty, the liberty interfered with, and the
nature and extent of that interference, in order to meet the second prong of
the Waterfield test.
35 Police powers and police duties are
not necessarily correlative. While the police have a common law duty to
investigate crime, they are not empowered to undertake any and all action in
the exercise of that duty. Individual liberty interests are fundamental to the
Canadian constitutional order. Consequently, any intrusion upon them must not
be taken lightly and, as a result, police officers do not have carte blanche
to detain. The power to detain cannot be exercised on the basis of a hunch, nor
can it become a de facto arrest.
This approach was later discussed in The
Queen v Clayton, 2007 SCC 32, [2007] SCJ no 32 at paras 40-41:
40 The police had reasonable grounds to
believe that public safety was at risk, that handguns could be in the
possession of those leaving the parking area, and that stopping cars leaving
that area could result in their apprehension. The steps taken by the police in
this case in stopping the car, based on the information they had, were
reasonable and reasonably tailored to the information they had.
41 In the totality of the circumstances,
therefore, the initial detention in this case was reasonably necessary to
respond to the seriousness of the offence and the threat to the police's and
public's safety inherent in the presence of prohibited weapons in a public
place, and was temporally, geographically and logistically responsive to the
circumstances known by the police when it was set up. The initial stop was
consequently a justifiable use of police powers associated with the police duty
to investigate the offences described by the 911 caller and did not represent
an arbitrary detention contrary to s. 9 of the Charter.
[28]
In the circumstances confronting Mr. Tremblay a brief detention of Mr. Sauve pending the completion of the Ottawa
Police Service investigation was both prudent and reasonable. Mr. Sauve was told on arrival the reason for his attendance at the detachment. He was
ordered to remain in the briefing room, but was not restrained in any way. He
was given access to an RCMP employee assistance officer. In the face of Mr. Sauve’s involvement in sending a letter to the Supreme Court threatening suicide and
the lives of others, this minimal restriction on his movement was reasonably
tailored to the gravity of the risk and it was, therefore, lawful.
[29]
Mr. Sauve’s second complaint concerns the attendance of two plain-clothes
RCMP members at his cell in the OCDC on November 22, 2004. The purpose of this visit was to serve a Notice of Production upon Mr. Sauve to effect his
attendance as a witness in a narcotics prosecution trial in Ottawa. Mr. Sauve had been involved in the investigation that led to the prosecution and his
attendance to give evidence was requested by the defence lawyer and authorized
by the trial judge.
[30]
Mr. Sauve’s concern is that his previously undisclosed status as a police officer
was compromised by this visit, in particular, because the conversation was
likely overheard by jail officials and by other inmates. He alleges that on
four occasions after this event, he was assaulted by prison guards because of
his RCMP employment. He also says that, thereafter, he was constantly
terrified because of the prospect of being assaulted by inmates with animus to
police officers.
[31]
Mr. Sauve alleges that the RCMP acted negligently by exposing him to an
increased risk of harm and he seeks damages for associated emotional distress.
He does not seek damages per se for the alleged injuries he claims to have suffered at the hands of
jail officials and he is pursuing a separate civil action against the Province of Ontario for assault.
[32]
There are several reasons why Mr. Sauve’s claim cannot succeed. Firstly, Mr. Sauve failed to prove that the actions
of the RCMP were negligent or that what allegedly occurred was caused by those
actions. He also failed to establish that he sustained any compensable injury
from this event.
[33]
Mr. Sauve maintains
that the conversation he had in his cell with Constable Cadieux and Constable
Sorrie was likely overheard by jail officials and by nearby inmates. This, he
said, put him at an increased risk of harm.
[34]
The fact that jail officials could have overheard
the discussion is of no legal consequence. They already knew that Mr. Sauve was a member of the RCMP and was being held in protective custody for that
reason. While it is not strictly necessary to decide whether Mr. Sauve was ever assaulted by jail officials by virtue of his police status, I would note
that he provided no corroboration for those allegations and he failed to
articulate any plausible motive for such misconduct.
[35]
Constable Cadieux and Constable Sorrie both
testified that the discussion that took place in Mr. Sauve’s cell on November 22, 2004 was professional and reasonably muted. Mr. Sauve expressed no
concern at that time about the visit and freely discussed the details of his
anticipated attendance to testify. He asked if he would be able to review his
police notes in advance of testifying and he was told that the notes would be
available. At the conclusion of the meeting, Constable Sorrie asked Mr. Sauve how he was doing and whether he needed anything. The offer of assistance was
declined.
[36]
When Constable Sorrie was asked why the meeting
with Mr. Sauve did not take place in one of the usual interview rooms, he
thought that it was likely arranged that way to avoid parading Mr. Sauve in front of the general inmate population. The Security Manager of the OCDC, Steven Ashdown, gave the same explanation.
[37]
The test for establishing negligent police
conduct is set out in the following passage from Hill v Hamilton-Wentworth
Regional Police Services Board, 2007 SCC 41 at para 73, [2007] 3 S.C.R. 129:
73 I conclude that the appropriate
standard of care is the overarching standard of a reasonable police officer in
similar circumstances. This standard should be applied in a manner that gives
due recognition to the discretion inherent in police investigation. Like
other professionals, police officers are entitled to exercise their discretion
as they see fit, provided that they stay within the bounds of reasonableness.
The standard of care is not breached because a police officer exercises his or
her discretion in a manner other than that deemed optimal by the reviewing
court. A number of choices may be open to a police officer investigating a
crime, all of which may fall within the range of reasonableness. So long as
discretion is exercised within this range, the standard of care is not
breached. The standard is not perfection, or even the optimum, judged from the
vantage of hindsight. It is that of a reasonable officer, judged in the
circumstances prevailing at the time the decision was made – circumstances that
may include urgency and deficiencies of information. The law of negligence does
not require perfection of professionals; nor does it guarantee desired results
(Klar, at p. 359). Rather, it accepts that police officers, like other
professionals, may make minor errors or errors in judgment which cause
unfortunate results, without breaching the standard of care. The law
distinguishes between unreasonable mistakes breaching the standard of care and
mere "errors in judgment" which any reasonable professional might
have made and therefore, which do not breach the standard of care. (See Lapointe
v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Folland v. Reardon
(2005), 74 O.R. (3d) 688 (C.A.); Klar, at p. 359.) [Emphasis in the original]
Mr. Sauve’s evidence falls far short of proving that the Defendants
were, on the above standard, negligent in conducting a discussion in his cell
in the circumstances described.
[38]
Mr. Sauve also offered no evidence that any other inmate actually overheard
the discussion with Constables Cadieux and Sorrie and his suggestion that it
was likely overheard is speculation. Mr. Sauve’s situation was also a
matter of public notoriety such that, if any inmate was aware of his RCMP
employment, the information could just as easily have been obtained from
available news reports.
[39]
Throughout his incarceration, Mr. Sauve was held in protective custody because of his RCMP status. In the result, he was
never directly exposed to the general population of inmates. While in theory,
he could have mingled for an hour each day with the other inmates in protective
custody, the evidence indicates that he declined that opportunity. Although Mr. Sauve was double-bunked with another protective custody inmate for a few weeks, that
decision was made by jail officials and not by any of the Defendants. Mr. Sauve provided no evidence that this inmate was aware of his RCMP status and the
bunking arrangement was ultimately ended at the request of Mr. Sauve’s lawyer.
[40]
I have no doubt that Mr. Sauve’s time in
custody was difficult for him. He was confined to his cell for at least 23
hours each day and had virtually no direct interaction with others for the
duration of his time in custody. But that situation was a consequence of the
criminal charges he faced and of the lawful custodial decisions that were made
by court and jail officials. Mr. Sauve was held in protective custody
because his safety could not be assured within the general inmate population.
The custodial decisions taken by jail officials appear to me to be prudent and
necessary but, in any event, the Defendants in this proceeding bear no legal
responsibility for those decisions.
[41]
There was evidence from Mr. Sauve’s family
physician, Dr. David Burt, that after his release Mr. Sauve
complained of symptoms consistent with post-traumatic stress disorder. I accept
that, as a police officer, Mr. Sauve suffered considerable stress from his
time in custody. But, again, that situation resulted from his lawful detention
and from the particular hardships protective custody imposed upon him. The innocuous
meeting with Constable Cadieux and Constable Sorrie does not support a separate
allocation of emotional distress from the distress that was already inherent to
the detention itself.
[42]
For the foregoing reasons, this action is
dismissed. The matter of costs is reserved pending receipt of written
submissions from counsel for the parties. Those submissions are to be filed
and served within seven days and are not to exceed five pages in length.
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