Peart et al. v. Peel Regional Police Services Board et al., (2006) 217 O.A.C. 269 (CA)

• Judge: Doherty, Goudge and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 08, 2006
• Jurisdiction: Ontario
• Citations: (2006), 217 O.A.C. 269 (CA);2006 CanLII 37566 (ON CA);43 CR (6th) 175;AZ-5047136;[2006] OJ No 4457 (QL);152 ACWS (3d) 825;217 OAC 269;39 MVR (5th) 123

Peart v. Police Services Bd. (2006), 217 O.A.C. 269 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. NO.025

Garfield Peart & Earle Grant (appellants/plaintiffs) v. Peel Regional Police Services Board, Officer S. Ceballo (Badge No. 1491), Officer Pedler (Badge No. 1702)

(respondents/defendants)

(C40334)

Indexed As: Peart et al. v. Peel Regional Police Services Board et al.

Ontario Court of Appeal

Doherty, Goudge and Rouleau, JJ.A.

November 8, 2006.

Summary:

The plaintiffs commenced two separate actions against the defendants. They claimed general, aggravated, and punitive damages for alleged police misconduct arising out of their apprehension and arrest. They alleged, inter alia, that they had been the victims of racial profiling throughout their encounter with the police. The actions were tried together.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 599, dismissed both actions. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - The Ontario Court of Appeal stated that "Clearly, trial judges are required to give counsel an adequate opportunity to make submissions. Trial judges are not, however, required to vet each and every step in their fact finding analysis with counsel. Nor are trial judges required to invite submissions targeting each and every step of the fact finding analysis. As triers of fact, trial judges must weigh the evidence. In doing so, they must have regard to the kinds of considerations which as a matter of common sense and human experience will affect the reliability of the evidence or the credibility of the witnesses. Counsel are expected to make whatever arguments they deem appropriate directed at issues which, as a matter of common sense, arise in the evidence and could affect the trial judge's assessment of the evidence. I do not think that counsel can reasonably claim to be taken by surprise when a trial judge factors the failure to produce potentially supportive evidence into his or her consideration of the weight to be assigned to certain evidence offered at trial." - See paragraph 88.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - The plaintiffs sued the defendants, alleging police misconduct arising out of their apprehension and arrest - On appeal, they alleged that the trial judge showed a reasonable apprehension of bias against them - They alleged that he was predisposed against the validity of their claim that the police engaged in racially motivated misconduct - The Ontario Court of Appeal dismissed the appeal - The court rejected the plaintiffs' submission that in applying the reasonable person test to determine reasonable apprehension of bias, for African Canadian men, the reasonable person would be an African Canadian man - The argument that the assessment of whether there was a reasonable apprehension of bias should be partly subjective was contrary to authority - Further, judicial partiality was not a matter of personal perception - The personal characteristics of a litigant, such as race, might affect the litigant's personal view of judicial partiality, but they could not create a reasonable apprehension of bias where one would otherwise not exist - The outcome of a bias inquiry could not turn on the perspective of the party advancing that claim - There either was or there was not a reasonable apprehension of bias - See paragraphs 35 to 56.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 686 ].

Evidence - Topic 122

Degree, standard or burden of proof - Burden of proof - Burden of proof in civil actions - An intervenor submitted that where racial profiling was alleged against the police in a civil proceeding, the police should bear the onus of demonstrating on a balance of probabilities that improper racial considerations did not contribute to the state action that resulted in the interference with a black plaintiff's liberty - The Ontario Court of Appeal rejected the submission - Fairness might dictate a reversal of the usual legal burden of persuasion - However, it was not enough to demonstrate that the other party was in a better position to disprove the fact in issue - In many civil proceedings where the plaintiff's claim turned on the defendant's conduct or state of mind, the defendant would be in a better position to prove or disprove the relevant facts - Fairness could justify a reversal of the legal burden in those relatively rare cases where the party who would normally bear the burden of proof had no reasonable prospect of being able to discharge that burden, and the opposing party was in a position to prove or disprove the relevant facts - However, while the ultimate burden of persuasion remained on the plaintiffs, in any given case there might be a significant tactical burden on the defendant to introduce evidence negating the inference of racial profiling - See paragraphs 136 to 155.

Evidence - Topic 135

Degree, standard or burden of proof - Burden of proof - Shifting burden - General - [See Evidence - Topic 122 ].

Evidence - Topic 136.1

Degree, standard or burden of proof - Burden of proof - Shifting burden - Racial profiling - [See Evidence - Topic 122 ].

Police - Topic 3102

Powers - Investigation - Grounds for commencing investigation - The plaintiffs sued the defendants, alleging police misconduct arising out of their apprehension and arrest - Their actions were dismissed - On appeal, they submitted that the trial judge erred in holding that Officer Ceballo's initial decision to conduct a computer search on the plaintiffs' licence plate number was not the product of racial profiling - In making this submission, they argued that Officer Ceballo could lawfully investigate the plaintiffs only if he had reasonable grounds for doing so and he had no more than a hunch - The Ontario Court of Appeal held that the police did not need reasonable grounds to conduct investigations as long as the police conduct did not interfere with any individual rights - Officer Ceballo's decision to run a computer check on the licence plate did not interfere with any of the plaintiffs' rights - If, as he testified, Officer Ceballo ran the computer check essentially because he had time to do so, there was nothing wrong with doing so even if he had no grounds to suspect the plaintiffs of anything - The essential question was not whether Officer Ceballo had reasonable grounds to suspect the plaintiffs of any misconduct when he conducted the computer check, but whether he was motivated to do so in part, at least, because of their skin colour - See paragraphs 106 to 108.

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See Police - Topic 3102 ].

Cases Noticed:

R. v. Brown (D.) (2003), 170 O.A.C. 131; 173 C.C.C.(3d) 23 (C.A.), refd to. [para. 35].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [para. 36].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 37].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 49 C.R.(3d) 97; 23 C.C.C.(3d) 193, refd to. [para. 38].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 38].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201, refd to. [para. 38].

Marchand v. Public General Hospital Society of Chatham et al. (2000), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), leave to appeal refused (2001), 282 N.R. 397; 156 O.A.C. 358 (S.C.C.), refd to. [para. 38].

R. v. Werner (H.R.), [2005] A.R. Uned. 736; 205 C.C.C.(3d) 556 (N.W.T.C.A.), refd to. [para. 38].

R. v. Quinn (D.C.) (2006), 209 C.C.C.(3d) 278; 227 B.C.A.C. 83; 374 W.A.C. 83 (C.A.), refd to. [para. 38].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 46].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 48].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), refd to. [para. 78].

R. v. Richards (C.) (1999), 120 O.A.C. 344; 26 C.R.(5th) 286 (C.A.), refd to. [para. 89].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 131 C.C.C.(3d) 1; 167 D.L.R.(4th) 672 (C.A.), refd to. [para. 91].

R. v. Singh (J.), [2003] O.T.C. 853; 15 C.R.(6th) 288 (Sup. Ct.), refd to. [para. 93].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), refd to. [para. 94].

R. v. Spence (S.A.) (2005), 342 N.R. 126; 206 O.A.C. 150; 202 C.C.C.(3d) 1; 2005 SCC 71, refd to. [para. 96].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 102].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214; 130 C.C.C.(3d) 259, refd to. [para. 127].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239; 148 C.C.C.(3d) 449, refd to. [para. 127].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 139].

R. v. Curry (C.A.) (2005), 202 O.A.C. 187; 206 C.C.C.(3d) 100 (C.A.), refd to. [para. 140].

R. v. Cobham, [1994] 3 S.C.R. 360; 172 N.R. 123; 157 A.R. 81; 77 W.A.C. 81; 92 C.C.C.(3d) 333, refd to. [para. 140].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 140].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97, refd to. [para. 142].

National Trust Co. v. Wong Aviation Ltd., [1969] S.C.R. 481, refd to. [para. 149].

R. v. Peck, [2001] O.J. No. 4581 (Sup. Ct.), refd to. [para. 150].

R. v. Kahn (2004), 189 C.C.C.(3d) 49 (Ont. S.C.), refd to. [para. 150].

R. v. Campbell, [2005] Q.J. No. 394 (C.Q.), refd to. [para. 150].

R. v. Nguyen (V.T.), [2006] O.T.C. 76, refd to. [para. 150].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1; 124 C.C.C.(3d) 481, dist. [para. 152].

R. v. Hubbert (1975), 15 N.R. 143; 29 C.C.C.(2d) 279 (Ont. C.A.), affd. [1977] 2 S.C.R. 267; 15 N.R. 139; 33 C.C.C.(2d) 207, refd to. [para. 154].

R. v. Li (2004), 183 C.C.C.(3d) 48 (Ont. C.A.), refd to. [para. 154].

H.L. v. Canada (Attorney General) et al. (2005), 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 158].

Authors and Works Noticed:

McCormick on Evidence (6th Ed. 2006), vol. 2, p. 473 [para. 139].

Devlin, Richard F., We Can't Go On Together With Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S. (1995), 18 Dal. L.J. 408, pp. 419 to 421 [para. 55].

Perell, Paul M., The Disqualification of Judges and Judgments on the Grounds of Bias or the Reasonable Apprehension of Bias (2004), 29 Adv. Q. 102, pp. 105, 106 [para. 36].

Roach, Kent, Making Progress on Understanding and Remedying Racial Profiling (2004), 41 Alta. L. Rev. 895, p. 896 [para. 90].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 58 [para. 137].

Tanovich, David M., E-Racing Racial Profiling (2004), 41 Alta. L. Rev. 905, p. 916 [para. 93].

Tanovich, David M., Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention (2002), 40 Osgoode Hall L.J. 145, pp. 161 to 165 [para. 94].

Counsel:

Osborne G. Barnwell, for the appellants;

Kenneth R. Harris, for the respondents;

Sheena Scott and Royland Moriah, for the intervenor, African Canadian Legal Clinic.

This appeal was heard by Doherty, Goudge and Rouleau, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on November 8, 2006.