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Crown and Government Liability - False Arrest and Imprisonment. Inlakhana v. Canada (Attorney General)
In Inlakhana v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an unusual Charter s.11(i) ["if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment"] appeal. Here, a prisoner was able to apply Charter 11(1) to her case when parole eligibility stiffened between the commission of her offence and the sentencing. She sought to sue [for "false and unlawful imprisonment, negligence and Charter-related infringements"] for any administrative 'excess incarceration' [SS: my term] - that is, periods that she would have been paroled if the more favourable law had been applied seamlessly.
This appeal challenged the trial court's partial summary judgment award to the government respondent (the appellant first-initiated summary judgment motion) "releasing the respondent from liability arising from a failure to act expeditiously after the declaration was made":[1] Souphin Inlakhana was serving a penitentiary sentence of 6 years, 4 months and 27 days. At the time of the commission of the offences for which she was sentenced, the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) provided for accelerated parole for non-violent offenders serving their first penitentiary sentence. There is no dispute that under this legislation Ms. Inlakhana would have been considered for early parole after one sixth of her sentence, but for the fact that the relevant provisions of the CCRA were repealed on March 28, 2011, about six months before she was convicted and sentenced.
[2] Several inmates at Grand Valley Institution for Women, including Ms. Inlakhana, succeeded in establishing that their s. 11(i) Charter rights had been breached by denying them accelerated parole review. Since the offences for which they were sentenced were committed before the accelerated parole process was abolished, they were entitled to the benefit of lesser punishment: Lewis et al. v. The Attorney General of Canada, 2014 ONSC 6394, aff’d 2015 ONCA 379, leave to appeal refused, [2015] S.C.C.A. No. 325. Therefore, the effect of the decision was that Ms. Inlakhana was eligible for accelerated parole review.
[3] Immediately upon being notified of that decision, the Correctional Service of Canada (“CSC”) started to implement the process for determining Ms. Inlakhana’s parole eligibility. She ultimately received parole 43 days after the constitutional declaration was made.
[4] The appellants, Ms. Inlakhana and the Family Law Act claimants, commenced an action seeking damages for, among other things, false and unlawful imprisonment, negligence and Charter-related infringements. There were two aspects to the claim. The first had to do with the fact that Ms. Inlakhana spent much longer in custody as a result of the unconstitutional retroactive denial of the accelerated parole review system under the CCRA. The second had to do with what the appellants describe as a 43-day delay in processing Ms. Inlakhana’s release from custody on parole after the constitutional declaration was made.
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[12] Second, the appellants argue that the motion judge erred in dismissing the Charter claim, specifically that Ms. Inlakhana had been denied her s. 7 right to liberty "contrary to the principles of fundamental justice". The appellants contend that the motion judge erred when she suggested that the CSC and Parole Board were mandated to follow a process. They suggest that the following passage from the reasons reflects error:The [Parole Board] is statutorily required to review all information with respect to an offender in order to determine whether there are grounds to believe that she is likely to commit an offence with violence before the expiration of the sentence: CCRA s. 101(a). I agree that [Ms. Inlakhana’s] release was virtually a "sure thing" but nevertheless, a statutorily mandated process was in place. As a result, it cannot be said that her detention for an additional 43 days was contrary to the principles of fundamental justice. [13] The appellants suggest that the trial judge erred when she said that there was a statutorily mandated process in place to review information before determining whether Ms. Inlakhana should get parole. We disagree.
[14] Conditional release is governed under the CCRA. In particular, as mentioned earlier, s. 101(a) explicitly requires the Parole Board to take into consideration all manner of enumerated factors and information in “achieving the purpose of conditional release”. While Ms. Inlakhana’s release may have been, as the motion judge put it, “virtually a ‘sure thing’”, the decision about early release was that of the Parole Board and the Parole Board alone. While the information provided to the Board may have informed what it was likely to do, parole could not be granted until all the necessary information was provided to the Board and the Board was able to exercise its discretion in accordance with that information.
[15] We see no error in the motion judge's reasons. . Jacobi v. Winners Merchants International LP
In Jacobi v. Winners Merchants International LP (Div Ct, 2022) the Divisional Court considers some of the law of unlawful confinement:[18] A store owner is authorized to arrest someone found committing shoplifting at their store: Criminal Code of Canada, s. 494. Where such an arrest is made, the arrested individual must be delivered to police “forthwith” (Code, s. 494(3)).
[19] Police practice in Toronto, in cases such as this one, is that store personnel phone police to report the arrest and police dispatch officers to attend at the store to decide whether to take the arrested person into custody.
[20] Failure to call police “forthwith” after making an arrest can transform a lawful arrest into an unlawful confinement: R. v. Lahaie, [2019] ONCA 899.
[22] First, I do not accept that the “clock” begins to run the moment a suspect is stopped outside a store. Security personnel must investigate after stopping a suspect. They must satisfy themselves that their suspicions appear to be true. They must ensure their own safety and that of the detained person. They must take the person to some appropriate place, usually back in the store (in this instance, an area described as the “Winners jail” which is used to keep detained persons while waiting for police to arrive). Security personnel are entitled to make further inquiries and investigation before deciding to take the step of calling police and asking that a suspect be charged with a criminal offence. They are entitled to take such steps as cautioning the detained person about their right to silence and their right to counsel.[1] . M.W. v. Halton (Police Services Board)
In M.W. v. Halton (Police Services Board) (Ont CA, 2020) the Court of Appeal considered when an arrest was justified in the context of false arrest allegations:[20] D.C. Amore was reasonably entitled to make his decision to arrest M.W., based on the reliable information he had at the time of the arrest, and not based upon what he or anyone else learned later: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 50, citing Wong v. Toronto Police Services Board, [2009] O.J. No. 5097 (S.C.), at para. 61. D.C. Amore was not required to “exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish that there is no valid defence before being able to establish reasonable and probable grounds”: Tremblay, at para. 60. See also Payne v. Mak, 2018 ONCA 622, 78 M.P.L.R. (5th) 179, at para. 47. As Juriansz J.A. noted in Tremblay, at para. 64, the words “all information available” in the passage in Golub cited by M.W. refers to the information the officer had in his or her possession, not additional information that the officer could have had upon a simple inquiry. . Kolosov v. Lowe’s Companies Inc.
In Kolosov v. Lowe’s Companies Inc. (Ont CA, 2016) the Court of Appeal commented as follows on when a limitation period commences tolling in respect of the torts of false arrest and false imprisonment:Second Ground – The Claims were Statute-Barred
[11] The law in relation to the commencement of the limitation period for the intentional torts of false arrest and false imprisonment, and associated Charter breaches, is well settled. As Chiappetta J. noted in Fournier-McGarry (Litigation Guardian of) v. Ontario, 2013 ONSC 2581 (CanLII), at para. 16:A claim for the common law torts of false arrest, false imprisonment and breach of Charter rights arising there-from crystallizes on the date of arrest (see, Nicely v. Waterloo Regional Police Force, 1991 CanLII 7338 (ON SC), [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14; Fern v. Root, 2007 ONCA 79 (CanLII), [2007] O.J. No. 397 (Ont. C.A.), para. 102). [12] The appellants offer no authority for their submission that their causes of action did not arise, and the limitation period did not begin to run, until they had received full police disclosure. Not having commenced this action until after the two-year period from the time of arrest had expired, their claims in this respect are statute-barred. . Collis v. Toronto Police Services Board
In Collis v. Toronto Police Services Board (Div Ct, 2007) the Divisional Court stated:The Law of False Arrest and False Imprisonment
[28] False arrest is a tort resulting from the intentional and total confinement of a person against his or her will and without lawful justification. False imprisonment is a tort that similarly flows from the unlawful total deprivation of a person’s liberty. The onus is on the plaintiff to prove that he or she was arrested or detained, and that the defendant caused the arrest or detention. The onus then shifts to the defendant to justify his or her actions (Frazier v. Purdy (1991), 1991 CanLII 7194 (ON SC), 6 O.R. (3d) 429 (Gen. Div.) at 435).
[29] The authority to arrest the respondent lay in s. 524(2) of the Criminal Code, R.S.C. 1985, c. C-46. It reads, in part:Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused
(a) has contravened or is about to contravene any … recognizance that was issued or given to him, …
may arrest the accused without warrant. After such an arrest, the accused will appear before a justice under s. 524(3). If the justice finds that the accused has contravened his or her form of release, the justice shall cancel the recognizance and order that the accused be detained, unless the accused shows cause why his or her detention in custody is not justified pursuant to s. 524(8).
[30] A police officer must have reasonable grounds for arrest. In determining that issue, courts have applied the test for reasonable and probable grounds for arrest articulated by the Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at 250-51, despite the change in the wording of the Code to “reasonable grounds”. The test is twofold: the officer must subjectively believe there are reasonable and probable grounds for arrest, and the grounds must be justifiable from an objective point of view, in the sense that “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest”.
[31] The majority of the Supreme Court of Canada in Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474 stated that a police officer must take into account all the information available to him (p. 19 (Quicklaw)). However, as Doherty J.A. observed in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.) at 749,Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. He went on to say,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…” [32] The police officer need not establish a prima facie case for conviction. Rather, as Polowin J. stated in P.H.E. v. Ottawa-Carleton (Region) Police Service, [2003] O.J. No. 3512 (S.C.J.) at para. 54:It is clear, if one views the tests to be applied at the various stages of the criminal process (those being, for arrest – reasonable and probable grounds, for prosecution – a reasonable prospect of conviction, at a preliminary hearing – evidence that, if believed, could lead to conviction, at trial – proof beyond a reasonable doubt) that a police officer exercises his or her discretion at the very lowest end of this continuum.
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