



COURT OF APPEAL FOR ONTARIO

CITATION: Tremblay v.
    Ottawa (Police Services Board), 2018 ONCA 497

DATE: 20180531

DOCKET: C63302

Strathy C.J.O.,
    Juriansz and Huscroft JJ.A.

BETWEEN

Richard Tremblay and
    Johanne Mongrain

Plaintiffs (Respondents)

and

Ottawa Police
    Services Board
,
Jeff Aylen
, Melburn White, Shawn Graham, Christian
    Gardner, Martin Rukavina, Daniel Kunsken, Kirk Gidley, Jeff Simpson, Kelly
    Ryan, Stephan Gilbert, Jeff Kilcollins, Gordon Ward, Woody Aspilaire and Nelson
    Rowan

Defendants (
Appellants
)

Jeremy J. Wright, for the appellants

Lawrence Greenspon, for the respondents

Heard: December 5, 2017

On appeal from the judgment of
    Justice Catherine D. Aitken of the Superior Court of Justice, dated December
    31, 2016 with reasons reported at 2016 ONSC 4185.

Juriansz J.A.:

[1]This appeal
    arises from an action commenced by the respondents, Richard Tremblay and his
    spouse Johanne Mongrain, against the Ottawa Police Services Board (OPS), Sergeant
    Jeff Aylen and other named police officers, for damages for
the arrest of Tremblay and the execution of a public safety
    firearms warrant at the respondents home on October 17, 2006. The action
    alleged
negligent investigation, false arrest and false imprisonment and
    breach of their rights under ss. 7, 8 and 9 of the
Charter of Rights and
    Freedoms
.

[2]

Tremblay and Mongrain were involved in a dispute with their neighbours,
    who alleged a drainage pipe Tremblay and Mongrain had installed was causing
    flooding in their homes. The neighbours complained to the city, which issued an
    order to remove the pipe and ultimately commenced proceedings against Tremblay
    and Mongrain for failing to comply with the order. Six neighbours brought a
    civil suit against Tremblay and Mongrain. Some of the neighbours claimed that Tremblay
    subsequently engaged in intimidating behaviour toward them and their families.

[3]

The OPS arrested Tremblay for intimidation and mischief. Having
    confirmed that Tremblay had a licence and registration to possess three
    firearms, the OPS also obtained a public safety firearms warrant. With
    assistance from their Tactical Unit, police entered and searched the
respondents
home, seizing the firearms and
    ammunition.

[4]

At his criminal trial, Tremblay was acquitted of intimidation and of criminal
    harassment (a charge that was added by the Crown). He was found guilty of
    mischief. His mischief conviction was upheld on appeal to the Superior Court of
    Justice but overturned in this court.

[5]

Tremblay and Mongrain then brought this action. The trial judge found Sgt.
    Aylen, who was the investigating officer, and the OPS, as Sgt. Aylens employer,
    liable to Tremblay for negligent investigation, false arrest, unlawful
    detention and unlawful imprisonment and breaches of Tremblays rights under ss.
    7, 8, and 9 of the
Charter
. She found Sgt. Aylen and the OPS liable
    for breach of Mongrains rights under s. 8 of the
Charter
, relating to
    the search of the home. She awarded Tremblay and Mongrain over $50,000 in
    damages.

[6]

Sgt. Aylen and the OPS appeal. I would allow the appeal.

[7]

While, for the most part, the trial judge correctly identified the
    governing principles, she did not apply them to the facts and evidence in the
    case, sometimes expressly declining to do so. Proceeding without evidence,
    expert or otherwise, regarding the standards, policies and procedures that
    applied to police investigations in 2006, the trial judge imposed a standard of
    care that was inconsistent with the established jurisprudence. With the benefit
    of hindsight, she engaged in
second-guessing

the reasonable exercises of discretion by the police,
    substituting
her own view of the evidence and inferences for that of the
    OPS. In doing so, she identified a number of red flags that, in her view,
    called into question the reliability of the information Sgt. Aylen obtained
    during his investigation and that required further investigation. She also
    identified a number of other courses of action Sgt. Aylen, in her view, should
    have pursued instead of arresting Tremblay and obtaining the public safety firearms
    warrant.

[8]

These errors permeated the trial judges analysis of whether there were reasonable
    and probable grounds to arrest Tremblay.

[9]

The trial judge also erred in finding the arrest was unlawful under s.
    495(2) of the
Criminal Code
, R.S.C. 1985, c. C-46 because it was not
    in the public interest, the public safety firearms warrant was invalid, and the
    manner in which the warrant was executed was unreasonable.

A.

FACTS

(1)

Sgt. Aylens investigation

[10]

On October 13, 2006 Sgt. Aylen, then a detective with the OPS, was
    assigned to follow-up on an investigative action report of Officer White
following Whites interview with Deanna Perry, one of the
    neighbours, on October 12, 2006.
Officer Whites investigative action
    report was not entered into evidence because the respondents objected. Sgt.
    Aylen testified the report indicated that a neighbour dispute had started with
    civil litigation and a by-law proceeding surrounding a drainage pipe. It
    outlined Perrys complaints about Tremblays conduct towards herself and her
    husband, Pierre Huppé, and their family.

[11]

Sgt. Aylen contacted Perry and asked her to prepare and email him written
    statements from Huppé and herself. Perry told Sgt. Aylen that she had prepared
    a timeline of incidents, so he asked her to send that as well. Sgt. Aylen
    received these and reviewed them on October 16, 2006.

(2)

Information available to Sgt. Aylen during his investigation

(a)

Statements and incident timeline from Perry and Huppé

[12]

The timeline provided by Perry detailed encounters with Tremblay
    beginning in the fall of 2005 up until October 14, 2006. It described over 20 encounters
    in which Tremblay stared at and photographed Perry, Huppé and their children in
    their backyard and pool, laughed and cursed at them, gave them the finger, intimidated
    them with his pitbull, and interfered with their
attempts
    to sell their property. A serious allegation, discussed in detail later, was
    that they heard the sound of gunshots coming from the Tremblay property on two
    occasions.

[13]

In their statements, Perry and Huppé described the resulting impact
    on their family. They did not feel safe in their home or in their yard. Perry
    suffered from increased stress and anxiety and was afraid to stay alone in
    their home. She did not let her children play in the yard or in the
    neighbourhood unaccompanied and without constant supervision. Their children
    developed issues sleeping and the stress was impacting their married life.

(b)

Statements from Morris and Lavigne

[14]

In her statement, Perry indicated that their neighbours, Ron Morris and
    Georgette Lavigne, had witnessed some of the incidents involving encounters
    with Tremblay. On October 16, 2006 Sgt. Aylen attended at the neighbours home
    and requested that they provide written statements. In identical statements, Morris
    and Lavigne recounted that they had witnessed Tremblay intimidating and
    harassing Perry and Huppés family by staring at them through the gap in the
    cedar hedge and by taking photos of them in their backyard. They also
    corroborated Perry and Huppés account that Tremblay had parked an old van next
    to their property line, put old tires on its roof and spray painted on its side
    in big fluorescent letters a message that would prevent them from selling
    their property.


(c)

Previous occurrences

[15]

In addition to Officer Whites investigative action report about his
    October 12, 2006 interview with Perry, Sgt. Aylen located and reviewed five
    earlier occurrence reports of complaints that neighbours involved in the
    dispute had submitted to the OPS.

[16]

Four of the reports involved complaints about Tremblay:


(i)

A complaint by Huppé in
    December 2005 about an anonymous voicemail message he had received at work in
    November which he thought may have been from Tremblay.


(ii)

A complaint by Perry on
    June 18, 2006 indicating that Tremblay and Mongrain were harassing Perry and
    Huppé in connection with a neighbour dispute that had resulted in civil litigation
    and the harassment was escalating as their court date approached. That day,
    Tremblay had taken pictures of her husband and children.


(iii)

A further complaint by
    Perry on June 22, 2006 stating that Tremblay was staring her and her husband
    down while they cut the grass and following them as they moved about their
    property.


(iv)

A complaint by Patrick
    Walsh, another neighbour, on June 25, 2006 indicating that the neighbours
    involved in the civil dispute had been subjected to a gradually increasing
    level of harassment and abuse from Tremblay and Mongrain.

[17]

The fifth complaint was made by Tremblay about Huppé. On October 10,
    2006 Tremblay called the OPS and reported that on October 9, 2006 while he was
    playing basketball with his children on the street, Huppé sped by them
    squealing his tires. Tremblay felt this action put his safety and that of his
    children in danger. He also mentioned that he and Huppé were not on good terms.
    On October 16, 2006 Officer Taillefer spoke with Tremblay and then with Huppé,
    and indicated to both men that no further action would be taken at the time.

[18]

None of the officers who wrote these reports testified at trial. The
    reports, including the investigative actions taken by those officers, were
    admitted as exhibits at trial for the limited purpose of establishing what
    information was known or available to Sgt. Aylen when he conducted his
    investigation in October 2016.

[19]

Sgt. Aylen testified that he reviewed all of these occurrence reports as
    part of his investigation, however, he specifically stated that he did not rely
    on the four reports about Tremblay as part of his grounds to arrest and charge him,
    or to obtain the public safety firearms warrant.

(d)

Firearms search

[20]

Sgt. Aylen conducted a firearms search and found that Tremblay had a
    firearms licence and had three firearms registered to him at his residence.

(3)

The decision to arrest Tremblay and obtain a public safety firearms
    warrant

[21]

Sgt. Aylen testified that by the afternoon of October 16, 2006, based on
    the information he had received, he believed that he had reasonable and
    probable grounds to arrest Tremblay for mischief for interfering with Perry and
    Huppés enjoyment of their property, and for two counts of intimidation for
    engaging in behaviour for the purpose of compelling Perry and Huppé to abstain
    from doing something that they had a right to do, namely, enjoying the use of
    their backyard, front yard and swimming pool.

[22]

Sgt. Aylen also decided that he would seek a public safety firearms warrant
    under s. 117.04 of the
Criminal Code
, which authorizes the search and
    seizure of firearms and other weapons from a person where there are reasonable
    grounds to believe that it is not desirable in the interests of the safety of
    the person, or of any other person, for the person to possess the weapon.

(4)

Tremblays arrest and the execution of the warrant

[23]

On October 17, 2006 Sgt. Aylen obtained the public safety firearms
    warrant in respect of the Tremblay residence. The Tactical Unit assisted in
    executing the warrant. They arrived at the respondents residence at
    approximately 2:00 p.m. They knocked on the front and back doors and telephoned
    into the house but received no answer. After approximately 15 minutes, they
    breached the front door and entered the house. After they confirmed that the
    house was clear and secure, Sgt. Aylen and his team searched the home. Three
    firearms, along with three pellet guns, a cross-bow, a machete, a folding knife
    and ammunition were located and seized.

[24]

The respondents children arrived at the residence during the search.
    They were given the choice of either waiting outside or in a police car until
    the search was complete. Once the search was done, the children were let into
    the first floor of the house. An officer contacted Mongrain by phone, advised
    her of the search and advised that Tremblay should return home where he would
    be arrested.

[25]

Mongrain and Tremblay returned home and Tremblay was placed under arrest
    for mischief and intimidation by Officers Aspilaire and Ryan, acting on
    direction from Sgt. Aylen. He was cautioned, given his rights to counsel and
    searched.

[26]

Tremblay was transported to the police station and placed in a cellblock.
    An officer arranged for Tremblay to speak with his counsel. He then spoke with
    Sgt. Aylen and declined to make a statement.

[27]

Sgt. Aylen prepared an undertaking and reviewed the release conditions
    with Tremblay. The conditions included prohibitions from possessing firearms
    and from communicating with Perry, Huppé or their children. Tremblay was
    released from the police station after he was fingerprinted and photographed
    and after he signed the undertaking and a promise to appear.

[28]

Mongrain testified that the Tremblay home was in disarray as a result of
    the search, with furniture overturned and contents strewn about the home.

(5)

Disposition of the criminal charges

[29]

The Crown added two counts of criminal harassment under s. 264(3) of the
Criminal Code
to the mischief and intimidation charges laid by the
    police.

[30]

All charges proceeded to trial in the Ontario Court of Justice. The trial
    judge acquitted Tremblay of the intimidation and criminal harassment charges
    but found him guilty of mischief. Tremblay appealed his mischief conviction to
    the Superior Court of Justice, where it was upheld. On further appeal, this
    court entered a verdict of acquittal on the mischief charge:
R. v. Tremblay
,
    2010 ONCA 469, 256 C.C.C. (3d) 389.

[31]

The substance of the court decisions is relevant to my later analysis.
    The incident that was the basis of the mischief conviction is described in this
    courts decision, as follows:

On September 27, 2006, in an apparent display of pique, Mr.
    Tremblay placed his old rusted and beat-up van on the grass alongside the
    property line he shared with his neighbours. He threw three old tires on top of
    the van and left one on the hood, leaning against the front window. Needless to
    say, this was an eyesore, visible to anyone, and particularly to potential
    buyers coming to view the complainants' home. Then, on October 9 - shortly
    after Mr. Huppé and Ms. Perry's realtor posted a sign on their front lawn advertising
    an open house for the upcoming weekend - Mr. Tremblay spray painted, in
    fluorescent orange paint, the words, "I AM NOT RESPONSIBLE FOR YOUR
    BASEMENT FLOODS," on the side of the van facing his neighbour's property.

[32]

The judge at the criminal trial was satisfied beyond a reasonable doubt
    this was a wilful action on Tremblays part, done with the intent to interfere
    with the complainants lawful [use] or enjoyment of their property, in order to
    persuade them to withdraw their lawsuit against him, and so he convicted Tremblay
    of mischief. In allowing Tremblays appeal of the mischief conviction, this
    court accepted the facts were sufficient to establish the offence but found the
    courts below had not given a broad enough meaning to the defence provided by s.
    430(7) of the
Criminal Code
,
for acts the purpose of which is
    communicating information.

[33]

It is also important to note, in dismissing the intimidation and
    harassment charges, the trial judge accepted the allegations were sufficient to
    satisfy the charges. The trial judge dismissed these charges because he was not
    satisfied those allegations were proven beyond a reasonable doubt.

B.

the Trial Judges Reasons

(1)

Negligent investigation

[34]

No expert evidence was tendered at trial. The trial judge acknowledged
    the general rule that expert evidence is required to establish the standard of
    care applicable to a police officer in a negligent investigation claim.
    However, because the case fell within the established exception for cases
    involving non-technical matters within the knowledge and experience of the
    trier of fact, she decided expert evidence was unnecessary.

[35]

The trial judge concluded that Sgt. Aylen had conducted a negligent
    investigation. She emphasized that Sgt. Aylen was investigating a long-term
    dispute between neighbours in which a civil action was ongoing, and that there
    was no urgency to the investigation. She identified a number of red flags that,
    in her view, significantly reduced the reliability of the information gathered
    during Sgt. Aylens investigation and that required further inquiry. She held
    that Sgt. Aylens failure to follow-up and investigate further was therefore
    negligent. She also found that Sgt. Aylen had a number of options available to
    him to address Tremblays conduct, but instead resorted to the most dramatic
    and traumatizing option available by arresting Tremblay and obtaining and
    executing a public safety firearms warrant.

(2)

False Arrest, Unlawful Detention and Unlawful Imprisonment

[36]

The trial judge accepted that Sgt. Aylen subjectively believed that he
    had reasonable and probable grounds to arrest Tremblay. The issue was whether
    such grounds existed objectively.

[37]

The trial judge found that reasonable and probable grounds existed to
    arrest Tremblay for mischief, given that the Crown and judges at two levels of
    court had found there was sufficient evidence to support a finding of guilt for
    this offence. Nevertheless, she found Tremblays arrest for mischief was
    unlawful because she was satisfied
that the public
    interest could have been satisfied without arrest
, and the public
    interest limitation in s. 495(2) of the
Criminal Code
therefore applied.

[38]

The trial judge found that Sgt. Aylen did not have reasonable and
    probable grounds to arrest Tremblay for intimidation. She reasoned, at para.
    80, that the numerous red flags required further investigation to ensure that
    the information relied on by Sgt. Aylen in arresting Mr. Tremblay for
    intimidation was sufficiently reliable to justify an arrest. She added that,
    had there been reasonable and probable grounds to arrest for intimidation, she
    would have found the arrest was nonetheless unlawful because the arrest did not
    comply with the requirements of s. 495(2) of the
Criminal Code
.

[39]

Since Tremblays arrest was unlawful, the trial judge concluded his corresponding
    detention and imprisonment following arrest were also unlawful. Sgt. Aylen and
    the OPS were liable for the torts of false arrest, unlawful detention and
    unlawful imprisonment. The trial judge also held that Tremblays ss. 7 and 9
Charter

rights had been breached.

(3)

Unreasonable Search and Seizure

[40]

The trial judge also found that Tremblay and Mongrains s. 8
Charter
rights to be free from unreasonable search and seizure were violated by the
    issuance and execution of the public safety firearms warrant. First, the trial
    judge found that Sgt. Aylen failed to make full, frank and fair disclosure of
    material facts in the Information to Obtain (ITO) he prepared in order to
    obtain the warrant. Had this missing information been included, the justice of
    the peace could not have had reasonable and probable grounds to issue the
    warrant.

[41]

Second, the trial judge found that even if the warrant was valid, the
    respondents privacy rights were nonetheless breached because of the way in
    which the warrant was executed. The execution of the warrant by the Tactical
    Unit and their use of a dynamic entry into the respondents home was unreasonable
    in the circumstances. The trial judge accepted Mongrains evidence that their
    home was left in disarray as a result of the search.

(4)

Damages

[42]

The trial judge awarded Tremblay $40,923.58 in damages comprised of $15,000
    for false arrest and unlawful detention, $10,000 for negligent investigation, $5,000
    for wrongful seizure of weapons, $6,814.78 as special damages for legal fees
    relating to the return of his weapons, and $4,108.80 as special damages for
    replacing the door and doorframe that were broken during the search. She also awarded
    Mongrain $10,000 in damages for breach of her s. 8
Charter
rights.

C.

Analysis

(1)

The Standard of Review

[43]

The identification of the legal standards applicable
    raises questions of law that are reviewable for correctness. For the most part,
    this appeal does not involve the identification of the proper legal standards,
    but involves their application.
The interpretation of a legal standard involves a question of
    law. Questions of mixed fact and law that require the making of legal
    inferences, or the legal effect of findings of fact, are reviewable for
    correctness:
R. v.
Ewanchuk
,
[1999] 1 S.C.R.
    330
, at para. 21
,
R. v.
    Araujo
,

2000 SCC 65
,
    [2000] 2 S.C.R. 992, at para 18.


[44]

The significant question in this case is

whether there are reasonable and
    probable grounds to arrest. The trial judge's factual findings are entitled to
    deference, however the trial judge's ultimate ruling whether those facts are
    insufficient, at law, to constitute reasonable and probable grounds is
    reviewable on a correctness standard:
R. v. Shepherd
, 2009 SCC 35,
    [2009] 2 S.C.R. 527, at para. 20,
R. v. Anang
, 2016 ONCA 825, at para.
    13.

[45]

The trial judges findings of fact are reviewable only for
    palpable and overriding error. A palpable error is one that is plainly seen to
    be unreasonable. Findings of fact unsupported by the evidence satisfy the
    standard:
Housen v. Nikolaisen
,
2002 SCC 33, [2002] 2 S.C.R. 235,
H.L. v. Canada (Attorney General)
, 2005 SCC 25
,
[2005]
    1 SCR 401,
at para. 56. An appellate court is also justified in
    intervening where the trial judge draws an inference or makes a finding of fact
    that is demonstrably incompatible with evidence that is not otherwise
    contradicted or rejected by the trial judge:
R. v Sinclair
, [2011] 3
    S.C.R. 3, at para. 16.

(2)

Negligent investigation

(a)

The trial judge erred by defining the standard of care for negligent
    investigation in the absence of any evidence

[46]

Neither side called expert evidence at trial. After the close of
    evidence, the respondents brought a motion to reopen their case, so they could
    tender expert evidence to support their claim against the OPS based on
    inadequate training and supervision. In refusing the motion, the trial judge
    observed, at para.129, that without expert evidence as to the standard of care
    applicable to police services in Ontario in 2006 their claim in negligence
    against the OPS Board was doomed to fail.

[47]

The trial judge took a different view with regard to the claim in
    negligence against Sgt. Aylen. While recognizing the general rule that expert
    evidence is required to establish the standard of care in a negligent
    investigation claim, she concluded this case fell within the exception for actions
    involving non-technical matters within the knowledge and experience of the
    trier of fact. In doing so, she relied on the decision of this court in
Meady
    v. Greyhound Canada Transportation Corp
.
, 2015 ONCA 6, 329 O.A.C.
    173.

[48]

This case did involve routine offences and it was open to the trial
    judge to conclude that expert evidence of the standard of care was not
    necessary. However, the trial judge failed to note a critical distinction
    between this case and
Meady
.
In
Meady
, the trial judge
    had a wealth of other evidence available to him with respect to the police
    policies, procedures and standards that applied at the time. Police training
    materials were in evidence and were used to cross-examine the police officers
    regarding the course of action they had chosen to take. In holding the trial
    judge had not erred in finding expert evidence was not necessary, this court
    noted the record contained these materials and observed that the trial judge
    did not require expert evidence to understand them.

[49]

In the present case, the trial judge did not have any materials on
    police policies, procedures or standards before her. To fill that vacuum, she
    drew on two sources to guide her determination of the standard of care, both
    problematic.

[50]

First, the trial judge referred to the Declaration of Principles set
    out in s. 1 of the
Police Services Act
,
R.S.O.
    1990, c. P.15
which she described, at para. 65, as somewhat instructive
    of the standard for care owed by a police officer to members of the community.
    The principle set out in s. 1.1 states that police services shall be provided
    in accordance with [t]he need to ensure the safety and security of all persons
    and property in Ontario. From this, the trial judge concluded that
Sgt. Aylen overlooked his responsibility to ensure the safety
    and security of the respondents by arresting Tremblay and executing the public
    safety firearms warrant.

[51]

The principle set out in this statutory provision is far too general to
    serve as the basis for defining the standard of care in a particular investigation.
    The general principle does not displace a police officers authority to make an
    arrest when grounds to do so exist under s. 495 of the
Criminal Code
. To
    hold otherwise would be contrary to the Supreme Court of Canadas decision in
Hill
    v. Hamilton-Wentworth (Regional Municipality) Police Services Board
, 2007
    SCC 41, [2007] 3 S.C.R. 129; the standard of care, as it relates to the
    decision to arrest, is satisfied by the presence of reasonable and probable
    grounds.

[52]

Second, the trial judge noted the actions taken by Officers White
    and Taillefer, who had investigated earlier complaints that arose out of the
    dispute. As previously mentioned, Officer White had dealt with Perrys complaints
    made in June 2006. He had met with Perry
to discuss
    and document her concerns and then took no further action. Officer Taillefer
    had investigated Tremblays complaint about Huppés driving. Taillefer had spoken
    to both Tremblay and Huppé and then took no further action at that time.

[53]

The trial judge drew on the actions taken by these officers to suggest
    that Sgt. Aylen should have pursued options such as personally interviewing Perry
    and Huppé to find out what steps they wanted taken, personally interviewing
    Mongrain and Tremblay to get their side of the story, and discussing ways to
    de-escalate the tension between the families. Instead of adopting a similarly reasonable
    response to the neighbour dispute, Sgt. Aylen had decided to arrest Tremblay and
    to seek a public safety firearms warrant.

[54]

There are several difficulties with the trial judges reliance on the
    conduct of Officers White and Taillefer in defining the standard of care. I
    need only mention the most significant. Neither Officer White nor Officer Taillefer
    were witnesses at trial, and there was therefore no evidence as to why they
    chose the courses of action they had followed.

[55]

More importantly, neither officer stood in the same circumstance as did
    Sgt. Aylen. Each had dealt with the isolated complaint that was the subject of
    the occurrence report he submitted. Neither had all the information Sgt. Aylen had.
    Significantly, neither officer was aware of the two reports of gunshots from
    the Tremblay property, nor that Tremblay had a firearms licence and three registered
    firearms. As well, there is no indication that either officer was aware of the van
    incident which, in and of itself, justified the mischief charge.

[56]

In short, the two brief occurrence reports submitted by Officers White
    and Taillefer (which were not admitted for the truth of their contents), and
    the general principles set out in the
Police Services Act
provide no
    basis for the determination of the standard of care that applied to Sgt. Aylen.

[57]

An additional complication in this case is that the investigation had
    taken place some ten years before the civil trial. The trial judge did not even
    advert to the fact she was defining the standard of care for an investigation
    that had taken place ten years earlier. On the other hand, in dealing with the
    claim against the OPS, she reasoned that without evidence regarding what standard
    of care applied to police services in 2006, the claim against the OPS was
    doomed to fail. At least some evidence of the police policies, procedures and
    standards that existed in 2006 was necessary to determine the standard of care
    that applied to Sgt. Aylens investigation.

[58]

Finally, in testimony not noted by the trial judge, Sgt. Aylen indicated
    that on the morning of October 16, 2006 he consulted with his colleagues and
    his supervisor about the Tremblay investigation and the appropriate course of
    action that morning for the file. The fact Sgt. Aylen consulted with his
    supervisor before proceeding is evidence that he acted as a reasonable police
    officer would have. In the absence of any other evidence of how a reasonable police
    officer with the same knowledge and in the same circumstances would have acted,
    this should have been accorded significant  if not determinative  weight by the
    trial judge.

[59]

In summary, the trial judge erred by proceeding to define a standard of
    care that was without any evidentiary basis, and contrary to the only pertinent
    evidence before her.

(b)

The trial judge imposed a standard of care inconsistent with the
    established jurisprudence

[60]

Drawing largely from this courts decision in
495793 Ontario Ltd. v.
    Barclay

(2016), 132 O.R. (3d) 241 (C.A.), the trial judge correctly
    identified the legal principles that apply to consideration of the tort of negligent
    investigation in the context of laying charges, including the following:

·

The appropriate standard of care for the tort of negligent
    investigation is that of the reasonable police officer in similar circumstances.

·

In the laying of charges, the reasonable standard is informed by
    the presence of reasonable and probable grounds to believe the suspect has
    committed the offence.

·

This standard does not require police to establish a
prima
    facie
case for conviction.

·

The police are not required to evaluate the evidence to a legal
    standard or make legal judgments. That is the task of prosecutors, defence
    lawyers and judges.

·

A police officer is not required to exhaust all possible routes
    of investigation or inquiry, interview all potential witnesses prior to arrest,
    or to obtain the suspects version of events or otherwise establish there is no
    valid defence before being able to form reasonable and probable grounds.

[61]

Although the trial judge set out the correct legal principles, she imposed
    a standard of care inconsistent with them.

[62]

The trial judge held that Sgt. Aylen had a duty to further investigate
    the red flags that, in her view, undermined the reliability of the information
    he had. The trial judge indicated, at para. 81, that she realized she was 
brushing up against the principle that a police officer is
    not required to exhaust all possible routes of investigation or inquiry,
    interview all potential witnesses, or obtain the suspect's version of events
    before being able to form reasonable and probable grounds. She then went on to
    state:

I simply cannot accept that, objectively, reasonable and
    probable grounds existed in regard to the charge of intimidation when all of
    these red flags were left waving and the investigating officer chose not to
    interview the complainants or the suspect in the case before arresting the
    suspect.

[63]

The trial judge found, at para. 54, that in assessing Sgt. Aylens
    conduct, she was entitled to consider not only the information that Sgt. Aylen had,
    but also the information that he did
not
have but which he could have
    had upon simple inquiry (emphasis in original). To support this proposition, she
    cited the decision of Doherty J.A. in
R. v. Golub
(1997), 34 O.R. (3d)
    743 (C.A.), at para. 21:

In deciding whether reasonable grounds exist, the officer must
    conduct the inquiry which the circumstances reasonably permit. The officer must
    take into account all information available to him and is entitled to disregard
    only information which he has good reason to believe is unreliable.

[64]

This passage does not support the proposition for which it was cited.  The
    appellant in
Golub
contested the lawfulness of his arrest arguing the
    police should have disregarded the unconfirmed information of an untested
    informant. In finding the arrest lawful, Doherty J.A. made the point that the
    police had no good reason to believe the information from the untested
    informant was unreliable. The words all information available refer to the
    information the officer had in his possession  not additional information the
    officer could have had upon simple inquiry.

[65]

In
R. v. Chehil
, 2013 SCC 49, [2013] 3 S.C.R. 220 Karakatsanis
    J. approved of Doherty J.A.s statement in
Golub
, stating, at paras.
    33 and 34, that [e]xculpatory, neutral, or equivocal information cannot be
    disregarded when assessing a constellation of factors but added that the
    obligation of the police to take all factors into account does not impose a
    duty to undertake further investigation to seek out exculpatory factors or rule
    out possible innocent explanations.

[66]

More recently, in
Barclay
, this court reversed a decision that
    followed an approach similar to that adopted by the trial judge in this case.
Barclay
involved an auto theft investigation. Notwithstanding the absence of any urgent
    circumstances, at para. 84, this court pointed out the trial judge's criticism
    of the police for failing to follow-up on, or take steps to become aware of,
    possible innocent explanations ignores the established jurisprudence that
    police are not required to exhaust all avenues of investigation, establish that
    an accused has no defence, or even obtain an accused's version of events.

[67]

By proceeding contrary to this well-established principle, the trial
    judge erred in finding that Sgt. Aylen was required to take additional
    investigative steps in light of the red flags she identified.

[68]

The trial judge also criticized Sgt. Aylen for taking regard of
    information that he had, which in her view was unreliable. In assessing the
    quality and sufficiency of the information they have, police officers are not
    entitled to shut their eyes to the obvious:
R. v. Backhouse
(2005),
    195 O.A.C. 80, 194 C.C.C. (3d) 1, at para. 69. They are entitled to disregard only
    information which they have good reason to believe is unreliable:
Chartier
    v. Quebec (Attorney General)
,
[1979] 2 S.C.R. 474, at para. 73.

[69]

None of the red flags identified by the trial judge fell into this
    category. I need discuss only a few red flags the trial judge identified to
    illustrate this point.

[70]

One red flag the trial judge emphasized was Sgt. Aylens failure to
    personally interview Tremblay or Mongrain, despite having recognized at the
    outset the principle that police are not required to obtain the suspects
    version of events or otherwise establish there is no valid defence. An apt
    illustration is
Collins v. Brantford Police Services Board

(2001),
    151 O.A.C. 152, 158 C.C.C. (3d) 405, which also involved a neighbour dispute. The
    police officer in that case arrested Collins based on his neighbours
    complaints, without first interviewing him. As he was being arrested, Collins began
    to tell his side of the story, but the police officer cut him off, saying that
    he would have an opportunity to do so later. This court reversed the finding of
    liability for the arrest in that case.

[71]

Moreover, the trial judge did not note Sgt. Aylens testimony that
    police often choose not to speak with the subject of a complaint in a neighbour
    dispute, for fear of escalating it.

[72]

The jurisprudence is clear that the trial judge erred by concluding Sgt.
    Aylens failure to interview Tremblay and Mongrain was negligent.

[73]

The trial judge also repeatedly emphasized that Sgt. Aylen did not
    personally interview Perry and Huppé. Sgt. Aylen had the benefit of lengthy and
    detailed written statements from each of Perry and Huppé, a detailed timeline of
    incidents, and Officer Whites report of his interview of Perry on October 12,
    2006. The trial judge did not identify what, if any, additional information
    Sgt. Aylen would have received had he interviewed the complainants, let alone
    how this information would have affected the grounds for arrest.
The trial judge erred by concluding
that Sgt. Aylens failure
    to interview Perry and Huppé was negligent.

[74]

Other red flags identified by the trial judge, including a lack of
    independence in the statements provided by Morris and Lavigne; the potential
    for collusion between Perry, Lavigne and
Morris;
    t
he relationships of the various parties and the
    motivations of the neighbours involved in the litigation;
the fact that the statements were unsworn and some
    contained hearsay; and the delayed reporting of the gunshots, were not issues
    Sgt. Aylen had to resolve, though they
could be appropriately explored
    in cross-examination at trial and considered by the trier of fact in assessing
    a witness credibility or reliability.

[75]

The police are an investigative body, not an adjudicative one. As
    McLachlin C.J. stressed in
Hill
, at para. 50, though police are
    required to weigh evidence to some extent in the course of an investigation,
    they are not required to evaluate evidence according to legal standards or to
    make legal judgments which is the task of prosecutors, defence attorneys and
    judges. This distinction must be kept in mind.


[76]

There was no good reason for Sgt. Aylen to disregard the information he
    had. It would not be unusual for neighbours to speak with one another about a
    neighbourhood dispute, for spouses to work together on statements to the police
    about incidents they observed together, and for complainants to provide
    additional information as they interact with police. There was nothing in the
    statements of Morris and Lavigne corroborating those of Perry and Huppé that gave
    good reason to disregard them. In any event, reasonable and probable grounds
    can be established without corroboration or confirmation of a witness account:
Golub
,
    at paras. 16-17. The statements from Morris and Lavigne, even if defective in
    some way, could have been ignored completely without affecting the existence of
    grounds for arrest.

[77]

The trial judge also faulted Sgt. Aylen for not placing more weight on
    Perrys expressed wish that the police document her concerns, but not contact
    Tremblay. She erred in doing so. The trial judge mentioned repeatedly that
    Perry communicated her wishes to police in October 2006. In fact, she did so in
    August 2006. More importantly, police have to assess a situation themselves.
    Sgt. Aylen testified that it is not unusual in neighbour disputes for
    complainants to say they dont want the police to contact the neighbour
    complained about. The trial judge had no basis for finding that Sgt. Aylens
    failure to place weight on Perrys expressed wish was negligent.

[78]

These red flags illustrate the trial judge erred in focusing on
    potential defects in the information, rather than on whether the information
    disclosed reasonable and probable grounds to arrest.

[79]

The trial judge also improperly focused, at para. 60, on the presence of
    other reasonable options available to address Tremblays alleged misconduct and
    criticized Sgt. Aylen for jump[ing] to the most dramatic response in the
    circumstances, arresting him, and executing a public safety firearms warrant.

[80]

The question in assessing whether an arrest was authorized and is therefore
    lawful is not whether the officer could have done something other than arrest.
    Rather, the question is: did the officer have grounds to arrest?:
R. v.
    Carelse-Brown
, 2016 ONCA 943,
35
    C.R. (7th) 377
. The fact that the trial judge views other options as
    preferable is not determinative of whether Sgt. Aylen breached the standard of
    care. The Supreme Court emphasized this in
Hill
, at para. 73:

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. [Emphasis added.]

(3)

False Arrest

(a)

The trial judge erred by finding that there were not reasonable and
    probable grounds to arrest for intimidation under s. 495(1)

[81]

The trial judge found Sgt. Aylen had reasonable and probable grounds to
    arrest Tremblay for mischief. In making that finding, the trial judge gave
    controlling weight to the fact that the Crown and two levels of court were of
    the opinion that there was sufficient evidence to support a finding of guilt on
    this count, beyond a reasonable doubt. However, she attached no weight to the
    Crowns opinion there was a reasonable prospect of conviction on the intimidation
    count.

[82]

The trial judge justified not attaching weight to the Crowns opinion by
    saying, at para. 81, I cannot conclude that Sergeant Aylen presented to the
    prosecutor the full facts that were available to him at the time of the arrest.
    There was, however, nothing in the record to support this finding.

[83]

The only evidence before the trial judge was Sgt. Aylens testimony that
    he forwarded the file to the Crowns office for screening and prosecution. No
    suggestion was put to Sgt. Aylen that he omitted or added anything to the file before
    sending it to the Crowns office, nor did the trial judge identify the facts she
    believed Sgt. Aylen failed to disclose to the prosecutor.

[84]

Had the trial judge focused on the elements of the offence of
    intimidation, and on the information that was available, she would have
    concluded that there were reasonable grounds to arrest Tremblay for
    intimidation.

[85]

Section 423(1) of the
Criminal Code
sets out the offence of
    intimidation:

423(1) Every one is guilty of an indictable offence and liable
    to imprisonment for a term of not more than five years or is guilty of an
    offence punishable on summary conviction who, wrongfully and without lawful
    authority, for the purpose of compelling another person to abstain from doing
    anything that he or she has a lawful right to do, or to do anything that he or
    she has a lawful right to abstain from doing,

(f) besets or watches the place where that person resides,
    works, carries on business or happens to be;

[86]

The essential elements of the offence of intimidation as charged in this
    case include (i) that Tremblay watched and beset the Perry and Huppé residence
    and (ii) that his purpose in doing so was to compel Perry and Huppé to abstain
    from enjoying the use of their property including

their backyard, front
    yard and swimming pool.

[87]

The
mens rea
of the intimidation charges  compelling Perry and
    Huppé to cease enjoying their property  was quite similar to the
mens rea
of the mischief charge for which the judge at the criminal trial determined was
    proven beyond a reasonable doubt.

[88]

The statements and timeline from Perry and Huppé provided Sgt. Aylen
    with enough information to meet the reasonable and probable grounds standard
    with respect to these two elements. The trial judge erred in finding there were
    no reasonable and probable grounds to arrest for intimidation.

(b)

Section 495(2)

[89]

Section 495(2)(d) of the
Criminal Code

stipulates, in
    part, that a peace officer, despite having grounds to arrest, shall not arrest
    where he or she believes on reasonable grounds that the public interest may be
    satisfied without arresting the person. It reads as follows:

Limitation

(2)
A peace officer shall not arrest a person
    without warrant in any case where


(d)
he believes on reasonable grounds
      that the public interest, having regard to all the circumstances
      including the need to


(i)
establish the identity
        of the person,

(ii)
secure or preserve
        evidence of or relating to the offence, or

(iii)
prevent the
        continuation or repetition of the offence or the
        commission of another offence, may be satisfied
        without so arresting the person



[90]

The trial judge found that despite the presence of grounds to arrest
    Tremblay for mischief, his arrest was nonetheless unlawful because it failed to
    comply with s. 495(2). She also said she would have applied s. 495(2) had she
    found there were grounds to arrest on the charge of intimidation.

[91]

Before moving on, I observe that s. 495(2) only comes into play once s.
    495(1) is satisfied and the peace officer already has grounds to arrest.
    Section 495(2) does not require the officer to conduct additional investigation
    to determine if the public interest may be satisfied without arresting the
    person.

[92]

There are two problems with the trial judges approach. First, the
    evidence in this case did not support a finding that Tremblays arrest did not
    comply with s. 495(2). Second, even if it had, the trial judge erred in failing
    to apply s. 495(3) which, on the facts of this case would deem Sgt. Aylen to
    have been acting lawfully when he arrested Tremblay.

(c)

The trial judge erred in finding that the public interest limitation in
    s. 495(2) applied

[93]

Section 495(2) places a duty on a police officer who has grounds for
    arrest under s. 495(1), to
not
arrest where he or she
believes
on
    reasonable grounds that the public interest may be satisfied without arresting
    the person. The phrase believes on reasonable grounds makes clear that the
    test for applying the limitation in s. 495(2) is both subjective and objective.
    The police officer must believe that the public interest can be satisfied
    without arrest, and that subjective belief must be objectively reasonable. Both
    components must be satisfied. To be clear, it is not enough for a person
    alleging a violation of s. 495(2) to establish that, objectively, the public
    interest can be satisfied without an arrest. The person must also establish the
    police officer believed the public interest could be satisfied without an
    arrest but went ahead and made the arrest in any event.

[94]

The trial judge set out the correct test for s. 495(2), citing
Collins
.
    She said, at para. 86, that the respondents have to prove that Sergeant Aylen,
    Officer Aspilaire, and Officer Ryan believed on reasonable grounds that the
    public interest, having regard to all of the circumstances, could be satisfied
    without arresting Mr. Tremblay. It is not clear that she found the subjective
    component of the test was satisfied. She did say at para. 87, I am satisfied
    that, not only could the public interest have been satisfied without Mr.
    Tremblay being arrested, but also, Sergeant Aylen realized that at the time.

[95]

Apart from this passing comment about what Sgt. Aylen realized at the
    time, her entire rationale for finding s. 495(2) was violated relates to the
    objective component of the test. If the comment was intended to be a factual
    finding, it is a palpable error. The trial judge set out no evidentiary support
    for it, nor could she have, as the record contained none. As I noted earlier,
    the alleged application of s. 495(2) was never put to Sgt. Aylen.

[96]

More importantly, the only conclusion that could be drawn from the
    evidence was that Sgt. Aylen believed the public interest required Tremblay be
    placed under certain conditions, including conditions prohibiting him from possessing
    any weapons, and ordering that he have no communication with any member of the
    Perry and Huppé family. It was necessary that Tremblay be arrested to make him
    subject to these conditions, and these conditions were included in the
    undertaking upon which Tremblay was released.

[97]

As, on the record, it could not be found that Sgt. Aylen believed on
    reasonable grounds that the public interest could be satisfied without
    arresting Tremblay, the trial judge erred in finding s. 495(2) was violated.

(d)

The trial judge erred in failing to apply s. 495(3)

[98]

Section 495(3) of the
Criminal Code

reads as follows:

Consequences of arrest
    without warrant

(3)
Notwithstanding subsection (2), a peace
    officer acting under subsection (1) is deemed to be acting lawfully and in the
    execution of his duty for the purposes of


(a)
any proceedings under this or any
      other Act of Parliament; and

(b)
any other proceedings, unless in
      any such proceedings it is alleged and established by the person
      making the allegation that the peace officer did not comply with the
      requirements of subsection (2).


[99]

Section 495(3)(b), which applies to this case, deems an arrest to be
    lawful notwithstanding s. 495(2) unless the person asserting its application
    alleges and establishes, in the proceedings at issue, that the police
    violated s. 495(2).

[100]

The appellants submit that s. 495(3)(b) required the respondents to
    specifically allege a breach of s. 495(2) in their statement of claim. Without
    such notice, they say, they come to trial not knowing the case they have to
    meet.

[101]

The respondents submit that s. 495(3) does not require that they
    specifically plead noncompliance with s. 495(2), but rather, that it is
    sufficient if the allegation is canvassed in cross-examination at trial. I do
    not accept counsels alternative submission that the respondents statement of
    claim can be read to implicitly raise s. 495(2).

[102]

I am satisfied that, at a minimum, s. 495(3)(b) requires that an alleged
    violation of s. 495(2) be directly put to the police officer who made the arrest.
    It was not put to Sgt. Aylen in this case.

[103]

The cross-examination of Sgt. Aylen did explore some of the factors
    enumerated in s. 495(2)(d). However, it did not address all of the enumerated factors.
    More significantly, those enumerated factors are not exhaustive in defining the
    public interest:
Collins
, at para. 14.

[104]

As there was no allegation made that s. 495(2) applied, s. 495(3)
    operated to deem Sgt. Aylen was acting lawfully when he decided to have
    Tremblay arrested. The trial judge erred in law by failing to apply the deeming
    provision of s. 495(3).

(4)

The public safety firearms warrant

[105]

The trial judge found there were deficiencies in the ITO and that the
    warrant should not have been authorized due to those deficiencies. The trial
    judge also found that, even if the warrant were valid, the respondents privacy
    rights were nonetheless breached because of the manner in which the warrant was
    executed. I will deal with each of these issues separately.

(a)

Issuance of the warrant

[106]

The trial judge correctly recognized, at para. 103, her role in
    reviewing the warrant was to consider whether, in light of the record
    amplified on review, the ITO contained sufficient reliable evidence that might
    reasonably be believed on the basis of which the authorizing justice could have
    concluded that the conditions precedent required to be established had been met:
R. v. Hafizi
, 2016 ONCA 933, 343 C.C.C. (3d) 380, at para. 44.

[107]

The trial judge also set out the correct test, at para. 95, for the
    issuance of a public safety firearms warrant under s. 117.04 of the
Criminal
    Code
: are there reasonable grounds to believe there was an identifiable
    threat of serious or significant harm likely to be caused by firearms and other
    dangerous objects to the safety of specified individuals:
R. v. Hurrell
(2002), 60 O.R. (3d) 161 (C.A.), at para. 43.

[108]

Despite setting out the correct tests, the trial judges analysis of
    whether there were grounds to support the issuance of the warrant was flawed.

[109]

The trial judges analysis of this issue was affected by her erroneous conclusion
    that there were no reasonable and probable grounds to arrest Tremblay for
    intimidation, and that his arrest for mischief was unlawful. Throughout her
    analysis, the trial judge referred to the matter as civil litigation or a
    neighbour dispute  without reference to the fact that there were reasonable
    grounds to believe that Tremblay had committed two distinct criminal offences.
    She said, at para. 113:

What the police were dealing with, and what they knew they were
    dealing with, were ordinary people, living in a residential community with
    their families, who, unfortunately, had become embroiled in a bitter
    neighbourhood dispute about a drainage ditch. There were bad feelings aplenty,
    childish behaviour, game playing, unpleasant encounters, hyper-vigilance, and
    much unneighbourly conduct. But that was it.

[110]

That the trial judge regarded the matter as a purely civil dispute is
    also apparent in her suggestion at para. 107, that accepting the warrant was
    properly issued would mean it would be appropriate to execute a public safety
    firearms warrant any time a hunter (of which there are millions in Canada) is
    engaged in a neighbourhood dispute or is engaged in hotly contested civil
    litigation. This analogy failed to acknowledge there were grounds to believe
    that criminal conduct had been committed and gunshots had been heard.

[111]

The trial judge indicated that the key deficiency in the ITO was that it
    portrayed the tension between Mr. Tremblay and his neighbours as increasing
    over the months and heading toward a boiling point  a portrayal that was not
    accurate. She gave two reasons for this conclusion. First, the ITO failed to
    note Tremblay had removed his old van from the lot line days earlier and erased
    its offensive message without police intervention. Second, the ITO failed to
    fairly describe Perrys and Huppés reports of gunshots.

[112]

In my view, this criticism of the ITO was unfair. The ITO did not state that
    matters were heading toward a boiling point. The trial judges comment can only
    be based on the ITOs account of the level of apprehension felt by Perry and Huppé.
    This account accurately described their fear of Tremblay. Based on their
    statements to police indicating that Tremblays conduct in the past had
    escalated in response to developments in the civil and by-law proceedings, this
    was a fair concern to note in the ITO.

[113]

An authorizing justice could have taken a different view of the van
    incident, cited by the trial judge as an example of de-escalation, when the
    entire history of Tremblays use of the van is considered. On July 21, 2006
    Tremblay parked an old van close to the Huppé/Perry property line. On September
    27, 2006 Tremblay again moved the old van to the property line and this time placed
    old tires on top of it after seeing a realtors sign on the Huppé/Perry
    property advising of an open house the following weekend. Then, on October 9,
    2006 Tremblay added a large orange fluorescent message on the side of his van
    facing the Huppé/Perry property that read: I am not responsible for your
    basement floods. It took the intervention of his lawyer to get him to remove
    the van.

[114]

The trial judge was also critical of the ITOs statement that, [g]unshots
    have been heard coming from the [Tremblay] property on a number of occasions by
    both Deanna Perry and Pierre Huppé. The trial judge identified several
    deficiencies in this statement:

Of particular significance was the failure to put a timeframe
    on the two incidents when Mr. Huppé and Ms. Perry
suspected
they had
    heard gunshots on the Tremblay/Mongrain property, to acknowledge their
    uncertainty as to what they had actually heard, to highlight that there was no
    evidence that Mr. Tremblay had ever threatened anyone, let alone with a weapon,
    and to note that Mr. Huppé and Ms. Perry had not considered the incidents
    significant enough at the time to report them to the police.

[115]

Some of these criticisms were valid. The ITO should have noted that the
    sound of gunshots were heard on June 18 and July 18, 2006 but were not reported
    to the OPS until several months later, and that there had been no further
    alleged gunshot incidents since then. Moreover, Perry had indicated to the
    police in October 2006 that she did not know whether Tremblay had any guns.

[116]

The ITO should also have disclosed that, in her account of the June 18
    incident, Perry had said they heard noises that sounded like three gunshots.
    However, the evidentiary record, as a whole, does not support the trial judges
    finding that Perry and Huppé only suspected they heard gunshots or what they
    thought might be gunshots from the Tremblay property. In his statement, Huppé
    stated that he heard gunshots on both June 18 and July 18, 2006. Regarding June
    18, he said, on entend des coup de feu chez les Tremblays. Regarding July 18,
    he stated jentend un coup de fusil et jobserve un oiseau quitter les cèdres
    entre ma propriété et celle des Tremblays. The timeline provided by Perry
    stated that, on July 18, she heard the same sounds. The cumulative effect of
    this evidence was that one witness (Huppé) reported hearing gunshots on two
    separate occasions, and a second witness (Perry), heard similar sounds, or

what
    sounded like gunshots, on the same two occasions. An authorizing justice could
    have accepted that the police had reports of gunshots being heard from the
    Tremblay property. An authorizing justice could have viewed more seriously than
    did the trial judge the reports, albeit dated, of suspected gunshots in the
    residential neighbourhood.

[117]

The trial judge found a significant omission was that the ITO did not
    disclose that the police anticipated that a dynamic entry would be used to
    execute the warrant. This court recently confirmed, however, in
R. v.
    Rutledge
, 2017 ONCA 635, 387 C.R.R. (2d) 78, at para. 22, that an ITO need
    not disclose how police intend to execute the warrant if issued. The trial
    judge erred in law in finding that this information should have been included
    in the warrant.

[118]

Many of the other omissions and criticisms identified by the trial judge
    reflect her own view of the relative significance of certain items of evidence
    and the inferences she would have drawn.

[119]

For example, the trial judge criticized Sgt. Aylen for including in the
    ITO that Perry and Huppé reported loud and aggressive arguments from the
    respondents household, without disclosing there was no indication those
    arguments related to the neighbour dispute. However, including this additional
    information in the ITO would not have detracted from the grounds for issuing
    the warrant. The ITO did not suggest that the arguments were connected to the
    neighbour dispute. The authorizing justice could very well have taken the same
    view as had Huppé, who indicated that the loud arguments showed Tremblay had a
    problem controlling his temper.

[120]

The trial judges analysis, as a whole, illustrates that, instead of
    assessing whether the ITO, as amplified, contained reliable evidence that might
    reasonably be believed, she substituted her own view of the evidence and the
    particular inferences that she drew from that evidence. She quoted, but did not
    heed, the caution of Brown J.A. in
Hafizi
, at paras. 43-44: warrants
    and authorizations are presumptively valid, and the reviewing judge must not
    conduct a
de novo
hearing of the

ex parte
application.

[121]

In
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras.
    86 and 88, this court reminded that warrant review is not a trial, and that
    what is to be excised from the ITO is information that is erroneous, not
    information that is correct, or information that contradicts other information,
    or information with which the reviewing judge does not agree. The court
    emphasized that it is not the reviewing judge's role to draw inferences, or to
    prefer one inference over another. Even where the record has been amplified
    through the excision of misleading information or the addition of material
    information, the role of the reviewing judge remains limited.

[122]

In
Araujo
, at para. 51, the Supreme Court stressed that [i]n
    looking for reliable information on which the authorizing judge could have
    granted the authorization, the question is simply whether there was
at
    least some evidence that might reasonably be believed on the basis of which the
    authorization could have issued
(emphasis in original).

[123]

The next step is to consider the record, amplified by the information
    the trial judge found missing, and determine whether there continued to be
at
    least some evidence
that might reasonably be believed on the basis of which
    the authorization could have issued.

[124]

On a consideration of the amplified record, the authorizing justice
    could have reasonably believed the following: (i) there was an ongoing dispute
    among neighbours, with Tremblay and Mongrain on one side and Perry, Huppé and
    others on the other side; (ii) the dispute had resulted in by-law proceedings
    and civil proceedings, both of which were ongoing; (iii) the by-law proceedings
    were due to Tremblays alleged failure to comply with work orders issued by the
    City; (iv) Perry and Huppé had provided to police written statements and a
    timeline detailing conduct by Tremblay that had persisted over several months;
    (v) some of those incidents had been witnessed by other neighbours including
    Morris and Lavigne; (vi) Perry and Huppé had indicated that, based on this
    pattern of conduct, they were in fear of Tremblay; (vii) Perry and Huppé had
    indicated that the conduct had started after the commencement of the civil
    proceedings and that the conduct appeared to escalate in response to developments
    in the civil and by-law proceedings; (viii) based on the information received,
    the police determined that they had reasonable and probable grounds to arrest
    Tremblay for the criminal offences of mischief and intimidation, and they
    intended to charge Tremblay with those offences; (ix) there were dated reports
    of gunshots or what sounded like gunshots from the Tremblay property on two
    occasions; (x) police subsequently confirmed that Tremblay had a firearms
    licence and three firearms registered to him at his house; (xi) given his past
    reaction to developments in the civil and by-law proceedings, there was concern
    about how Tremblay would react to being charged criminally.

[125]

I conclude that the trial judge erred in failing to find the authorizing
    justice could have reasonably believed this information and issued the public
    safety firearms warrant accordingly. Instead, she substituted her own view of
    the evidence and the particular inferences that she drew from that evidence.

(b)

Execution of the warrant

[126]

The trial judge concluded that the manner in which the firearms warrant was
    executed was unreasonable. She correctly identified the principles that apply
    to a review of police decisions with respect to how a warrant is executed,
    including the manner of entry, drawn largely from the Supreme Courts decision
    in
R. v. Cornell
, 2010 SCC 31, [2010] 2 S.C.R. 142. Despite having set
    out the proper principles, the trial judge went on to err in her analysis.

[127]

First, she erred in characterizing the Tactical Units entry as a dynamic
    entry. The head of the Tactical Unit testified that upon arriving at the
    Tremblay residence, the Unit knocked on the doors and telephoned the home
    several times. After waiting a further 15 minutes, they then breached the front
    door, called out identifying themselves and entered the home. The decision of
    this court in
R. v. Pan
, 2012 ONCA 581, 292 C.C.C. (3d) 440, at para.
    38, makes it clear that this falls squarely within a knock and announce
    entry, not a dynamic entry:

The trial judge was wrong to say "[t]he knock-and-announce
    rule is not a knock-and-break-in-the-door-if-no-answer rule". That is
    exactly what the rule is. If the police receive no answer, they are entitled to
    force entry into a home.

[128]

The trial judges characterization of the Tactical Units entry as a
    dynamic entry, which requires additional justification, was an error of law:
Pan
,
    at paras. 41 and 43. This error permeated the trial judges analysis of the
    reasonableness of the manner in which the search was executed.

[129]

The Tactical Unit considered the search to be of the highest risk due to
    the confirmed presence of firearms. They executed the warrant accordingly. The
    trial judge accepted the Tactical Units risk assessment and found no fault on
    the part of the Tactical Unit, which she said followed normal police
    procedures in the circumstances.

[130]

Sgt. Aylen testified it was not his decision to have the Tactical Unit execute
    the warrant, nor did he decide how the Unit would enter the house. Nonetheless,
    the trial judge found, at para. 121, that the Tactical Unit was operating under
    the instructions of Sgt. Aylen and that he was in the driver's seat in this
    operation, and responsibility for its shortcomings falls to him.

[131]

Assuming the trial judge was entitled to infer that the Tactical Unit
    acted on the direction of Sgt. Aylen, it is impossible to reconcile her
    conclusion that the manner of the entry was unreasonable with her finding that the
    Tactical Units execution of the entry followed normal police procedures in
    such circumstances. The uncontradicted and unchallenged evidence was that it was
    the Tactical Unit, not Sgt. Aylen, who determined the risk level associated
    with the warrant, and executed the entry. Clear and convincing evidence would
    have been necessary to establish that the risk level associated with the search,
    and that the execution of the public safety firearms warrant following normal
    police procedure, was unreasonable. There was no such evidence in this case, expert
    or otherwise.

[132]

In her analysis, the trial judge stated at para. 118, that [t]here were
    so many other options that the police could have chosen that would have been
    far less invasive and traumatic for the entire Tremblay/Mongrain family and
    equally effective in enforcing the law and reducing risk. She set out a number
    of such options:

·

warning Tremblay about his conduct, rather than arresting him;

·

contacting Tremblays civil lawyer and asking him or her to
    intervene;

·

attending at Tremblays home and asking him to relinquish his
    firearms until tensions abated;

·

arresting Tremblay for mischief and releasing him on conditions,
    including the surrender of his firearms and related documentation; or

·

obtaining a public safety firearms warrant on reasonable and
    probable grounds but executing it in a non-dynamic, but equally effective,
    fashion.

[133]

As I noted earlier, the fact that the reviewing judge considers other
    options that might have been available to a police officer to be preferable
    does not in itself suggest that he or she breached the standard of care:
Hill
,
    at para. 73.

[134]

More importantly,
Cornell
,
at para. 24, cautions judges
    to avoid reviewing choices made by police in executing a warrant:

[T]he police must be allowed a certain amount of latitude in
    the manner in which they decide to enter premises. They cannot be expected to
    measure in advance with nuanced precision the amount of force the situation
    will require. It is often said of security measures that, if something happens,
    the measures were inadequate but that if nothing happens, they were excessive.
    These sorts of after-the-fact assessments are unfair and inappropriate when
    applied to situations like this where the officers must exercise discretion and
    judgment in difficult and fluid circumstances. The role of the reviewing court
    in assessing the manner in which a search has been conducted is to appropriately
    balance the rights of suspects with the requirements of safe and effective law
    enforcement, not to become a Monday morning quarterback. [Citations omitted.]

[135]

That the other options identified by the trial judge were never put to
    Sgt. Aylen for comment or explanation shows her analysis engaged in the very
    sort of Monday morning quarterbacking against which
Cornell
cautioned. The trial judge essentially substituted her own after-the-fact view
    of how the police should have acted, without affording them the opportunity to
    comment on her alternatives.

[136]

I conclude that the trial judges finding that the manner in which the
    warrant was executed was unreasonable is unsupported by the evidence in the
    record.

D.

Conclusion

[137]

For these reasons, I would allow the appeal and replace the trial
    judges order with an order dismissing the respondents action. I would fix the
    appellants costs of the appeal in the amount of $9,450 plus applicable taxes. If
    the parties are unable to agree on the costs of the trial, they may make
    written submissions, not exceeding five pages within 15 days of the release of
    this decision.

Released: GS MAY 31 2018

R.G. Juriansz J.A.

I agree. G.R. Strathy C.J.O.

I agree. Grant Huscroft J.A.


