York Regional Police – Negligent Investigation on 7 Arrests

Preface

I have a 1 in 4 chance of successfully suing for negligent investigation:

https://www.canlii.org/en/commentary/doc/2020CanLIIDocs1870?zoupio-debug#!fragment//(hash:(chunk:(anchorText:”),notesQuery:”,scrollChunk:!n,searchQuery:’negligent%20investigation’,searchSortBy:RELEVANCE,tab:search))

The data analysis shows that on a national basis, plaintiffs have a better than one in four chance to succeed in an action claiming damages for the tort of negligent investigation including its comparative remedy at civil law. The case law analysis shows that this tort has been proven when investigations have included relatively benign activity such as a simple mistake up to and including the characterization of police activity as reprehensible and high-handed.

See article: INNOCENCE COMPENSATION: THE SUCCESS RATE OF ACTIONS FOR NEGLIGENT INVESTIGATION
Myles Frederick McLellan*

In my first arrest, police failed to determine I had 6 weeks EARLIER filed a written call for an assault investigation and so they did not consider a motive of revenge.

In my second arrest May 30, 2018, AGAIN, police did NOT determine that complainant Clarke had just been sued May 11, 2018 by me for slander caused by a broadcast email disparaging me and misleading Council on her role in Canine Commons dog park.

Police did not question me, they went straight to arrest both times. This means they told the Crown they had evidence of the crimes alleged, the Crown could not have seen any such evidence, and so both were misfeasant.

In arrest #7, AGAIN, police did not. question me for one second, and so they could not determine that all 3 women who came with complaints were defendants for $1,000,000 each in my suit. $3 million was at risk without liability insurance since provable crimes were committed. They’d not considered “vindictive revenge”. They did not determine that all THREE lawyers would get more money from the insurance company if I was criminally guilty of something.If they had asked me even one question, I could have enlightened them to the obvious underlying reason they got together and made up a story. The charges were dropped two weeks before trial JUST to cost me the defence bills. They had know for a year that the charges were bogus,

Worse, in arrest #7, three lawyers as witnesses dictated 4 different stories, Jacklyn told two, Painter did not write his evidence out until just before trial was due, NO CROWN ever saw it, and none of them matched, and STILL police arrested me without a single question.

Had I been questioned in Arrests #1, #2 and #7 I would have pointed out the lawsuits to each officer as obvious motivati0n for false arrest, This was negligent investigation.

In addition, police were ALSO sued in the SAME matter, and thus all police were well aware I sued these people, and yet they refused me the right to offer my side BEFORE they made the decision to arrest me. After arrest #1, police refused me ANY video recorded interview because in the first arrest, I was able to get Det. Jeff Brown to admit who the complainant was, and to record his theory about the typographical mistake, and how he physically folded my very long email to Council and showed only the last sentence of a 700 word email. Out of context, he called it a threat of personal injury or death. By covering the other 685 words, he erroneously decided it was a threat. I pointed out an “auto correct” bug on my Mac which generated what he called a direct threat. I demonstrated it in a YouTube video.

In another arrest, my private email to Crown Barnier ONLY was given to police and Det. John Loughry worked up 5 new charges in his report based on me giving Ms Barnier a simple URL link to a YouTube video about my abuse at the hands of police. Loughry at my trial thumped the witness table because he was so mad the 5 charges were not laid. He wanted revenge and got it March 4, 2020 when he let the same 3 women dream up even more charges without having evidence anyone could believe. The alleged criminal act? Saying “Nice to see some people are not afraid of me anymore” to Barry Stork. Solomon in her interview for my arrest expressed fear of bing in the same building, yet that day she sat directly behind me in court. She was baiting me, so I spoke to Barry instead. That was February 14, 2020. SHE DID NOT REPORT IT. That is how much she believed it… she was looking for ANY reason to have me arrested February 14, 2020 but she knew I had done nothing.

But, when DS Bentham on March 2 called them all to come up with some more charges, Solomon threw out this claim and BOTH Painter and Stork believed her. Or they were desperate for another arrest.

Certainly after the 6th arrest, police SHOULD have kept the law suit in mind, but they have such an inflated opinion of their power over me that they just acted like a bull in a china shop. They could NOT have told the lawyers about it….. OOPS! It was the lawyer for York Regional Police, Barry Stork, who had me arrested.

Stork’s testimony: “Lepp walked past Solomon and spoke. I did not hear any words.”

Whereas Painter eventually, a year later, swore out his affidavit for the first time and his story: “Lepp did not walk away from the podium. I heard him speak to Solomon and I looked over my shoulder to see her.”

TWO lawyers were exactly 180 degrees apart, one said I walked out, one said I did not move, one said I spoke but then heard no words. The other said I spoke over my shoulder. Solomon told one cop I walked PAST her then spoke. To another she said I walked to her and spoke. 4 stories. 3 lawyers. Misfeasance.

Case Law – Can police be sued for Negligent Investigation?

I would open with a decision of the Supreme Court of Canada Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 Case number 31227 where CJ McLachlin wrote:

This case arises out of an unfortunate series of events which resulted in an innocent person being investigated by the police, arrested, tried, wrongfully convicted, and ultimately acquitted after spending more than 20 months in jail for a crime he did not commit. 

I.       Introduction

1          The police must investigate crime.  That is their duty.  In the vast majority of cases, they carry out this duty with diligence and care. Occasionally, however, mistakes are made.  These mistakes may have drastic consequences.  An innocent suspect may be investigated, arrested and imprisoned because of negligence in the course of a police investigation. This is what Jason George Hill, appellant in the case at bar, alleges happened to him.

2                                   Can the police be held liable if their conduct during the course of an investigation falls below an acceptable standard and harm to a suspect results? If so, what standard should be used to assess the conduct of the police?  More generally, is police conduct during the course of an investigation or arrest subject to scrutiny under the law of negligence at all, or should police be immune on public policy grounds from liability under the law of negligence?  These are the questions at stake on this appeal.

3                                   I conclude that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted.  The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant’s action on this basis.  The law of negligence does not demand a perfect investigation.  It requires only that police conducting an investigation act reasonably.  When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.

45                               I conclude that the relationship between a police officer and a particular suspect is close enough to support a prima facie duty of care. 

(ii)     Discretion

51                               The discretion inherent in police work fails to provide a convincing reason to negate the proposed duty of care.  It is true that police investigation involves significant discretion and that police officers are professionals trained to exercise this discretion and investigate effectively.  However, the discretion inherent in police work is taken into account in formulating the standard of care, not whether a duty of care arises.  The discretionary nature of police work therefore provides no reason to deny the existence of a duty of care in negligence.

54                               Courts are not in the business of second-guessing reasonable exercises of discretion by trained professionals.  An appropriate standard of care allows sufficient room to exercise discretion without incurring liability in negligence.  Professionals are permitted to exercise discretion.  What they are not permitted to do is to exercise their discretion unreasonably.  This is in the public interest.

64                               The answer to the ever-present possibility of erroneous awards of damages lies elsewhere, it seems to me.  The first safeguard is the requirement that the plaintiff  prove every element of his or her case.  Any suspect suing the police bears the burden of showing that police negligence in the course of an investigation caused harm compensable at law.  This means that the suspect must establish through evidence that the damage incurred, be it a conviction, imprisonment, prosecution or other compensable harm, would not have been suffered but for the police’s negligent investigation. Evidence going to the factual guilt or innocence of the suspect, including the results of any criminal proceedings that may have occurred, may be relevant to this causation inquiry.  It is not necessary to decide here whether an acquittal should be treated as conclusive proof of innocence in a subsequent civil trial.  Existing authority is equivocal:  Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63.  (I note that in the United States, victims may recover damages against a defendant who has been acquitted in criminal proceedings:  Rufov. Simpson, 103 Cal.Rptr.2d 492 (Ct. App. 2001).)  The second safeguard is the right of appeal.  These safeguards, not the categorical denial of the right to sue in tort, are the law’s response to the ever-present possibility of error in the legal process.

65                               I conclude that no compelling policy reason has been shown to negate the prima facie duty of care.

66                               Two issues arise: What is the appropriate standard of care? and Was that standard met on the facts of this case?

70                               Third, the common law factors relevant to determining the standard of care confirm the reasonable officer standard.  These factors include: the likelihood of known or foreseeable harm, the gravity of harm, the burden or cost which would be incurred to prevent the injury, external indicators of reasonable conduct (including professional standards) and statutory standards. (See Ryan v. Victoria (City), [1999] 1 S.C.R. 201; R. v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, at p. 227.) These factors suggest a standard of reasonableness, not something less onerous. There is a significant likelihood that police officers may cause harm to suspects if they investigate negligently.  The gravity of the potential harm caused is serious.  Suspects may be arrested or imprisoned, their livelihoods affected and their reputations irreparably damaged.  The cost of preventing the injury, in comparison, is not undue.  Police meet a standard of reasonableness by merely doing what a reasonable police officer would do in the same circumstances — by living up to accepted standards of professional conduct to the extent that it is reasonable to expect in given circumstances.  This seems neither unduly onerous nor overly costly.  It must be supposed that professional standards require police to act professionally and carefully, not just to avoid gross negligence.  The statutory standards imposed by the Police Services Act, R.S.O. 1990, c. P.15, although not definitive of the standard of care, are instructive (s. 1).