On March 2, 2020, the Ontario Superior Court granted summary judgment in Supreme Auto Group Inc. v. Toronto Police Services Board et al, 2020 ONSC 1223. The court dismissed the claims of negligent investigation and defamation against the Toronto Police Services stemming from the execution of a search warrant and a subsequent press conference.
The plaintiffs’ claim arose from the execution of a search warrant at a business premises in Durham. Durham Regional Police executed the search warrant as part of a Toronto Police Service (TPS) led investigation into the sale of illegal guns and drugs in the GTA. While three individuals who had past or recent associations with the business were arrested elsewhere, nothing illicit was found at the business nor was anyone arrested at the premises.
The chief of the TPS (the Chief) and senior Durham officers held a same-day press conference. During the course of the press conference, when explaining how the joint task force amongst police services had come about, the Chief advised that a premises in Durham had been identified as a “significant distribution point for firearms and controlled substances”. Minutes later, a Durham officer identified the business as the location in Durham that had been searched. The Chief advised nothing had been seized at the location.
The business and its principals subsequently sued both the Toronto and Durham police services for negligent investigation relating to the obtaining and execution of the warrant. A claim in defamation was also advanced for comments made at the press conference. Earlier claims in defamation brought by the individual plaintiffs were dismissed on an earlier Rule 21 motion, and the defamation claim persisted only in relation to the corporate plaintiff.
The defendants brought a motion for summary judgment seeking to dismiss all remaining claims in this action.
Negligent investigation claim
All parties agreed that the negligent investigation claim could not survive a finding that the warrant was lawful. The court found that it was. In conducting its analysis, the court affirmed the following common law principles:
- There can be no successful claim based in negligent investigation arising out of a lawfully obtained and executed search warrant;
- Assessing the validity of a search warrant in a civil case should follow the approach taken in assessing the validity of a warrant as set out in criminal case law – the reviewing judge does not conduct a de novo review. The court must instead consider whether the Information to Obtain the search warrant (the ITO) contained some evidence upon which an issuing judge could rely on to issue the warrant; and
- The police need not confirm each detail in an informant’s tip so long as the sequence of events generally observed conforms sufficiently to the anticipated pattern of conduct to remove the possibility of innocent coincidence.
The warrant in this case was issued, in part, relying on information from a confidential informant. The information available to the parties and the court on this summary judgment motion was heavily redacted.
The court concluded that even so there was “ample evidence in the redacted ITO on which a judge could issue the warrant.” Accordingly, the negligent investigation claim was dismissed.
With respect to the claim in defamation, the court had to consider whether the impugned statements were defamatory when examined in the entirety of the context in which they were made. In holding that the statements were not defamatory, the court noted that the Chief was not attempting to single out a business, but was explaining how the investigation came about and how it came to the attention of both police services. As a general rule, jurisprudence has confirmed that a statement to the effect that someone has been charged with an offence is not defamatory. Merely stating that someone is under investigation is not defamatory.
In the alternative, the court found that the defence of justification applied. The statements made by the Chief were accurate: he had stated that a particular business premises was “identified as a significant distribution point for firearms and for controlled substances.” The ITO materials supported this statement and the business had been identified. The police defendants were not to be held liable for the press taking police statements further than they actually went.
In the further alternative, the court found the words expressed by the police defendants at the press conference were expressed on an occasion of qualified privilege. The court noted as follows:
Courts have recognized that the public has a “right to know” about law enforcement: Webb v. Waterloo Regional Police Services Board, 2002 CanLII 41983 at para. 32 (ONCA). The public has a right to know how their tax dollars are being spent and what police are doing to control crime in their communities. The prevalence of gang violence and use of illegal firearms only accentuates that right to know. Similarly, the police have a duty to be accountable to the communities that they serve. Section 41(1.2) of the Police Services Act underscores that duty.
While the court acknowledged that qualified privilege could be defeated by malice, no malice was established in this case. The plaintiffs suggested that the police were using the press conference to “glorify” the investigation. The court noted, “If one’s goal were to glorify the investigation, one probably would not highlight a location at which nothing was found.”
While the plaintiffs filed an expert report suggesting the search warrant materials fell below the standard of care, the court was not persuaded that such report touched on the “threshold question” of whether there was some evidence on which the judge issuing the warrant could do so. This is among the first decisions in Ontario in which the court has specifically applied the principles from R. v. Garafoli in the civil context. In an era where claims against the police are increasingly including expert opinions, this decision confirms that there are indeed certain claims against the police, which do not require an expert opinion.