IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Veeken is suing the Minister of Public Safety and Solicitor General and Priscilla Spratt, alleging a number of torts including negligent investigation by officer McCreadie and any superiors that he may have consulted and\or taken direction from.  The Minister of Public Safety and Solicitor General (the “Minister”) is the government agency responsible for the conduct of the officers in question.

[2]           Mr. Veeken adduced evidence to support his claim during the trial of this matter from May 7 to May 9, 2018.  Mr. Veeken has now closed his case.  Mr. Kemp, as counsel for the Minister, has made a no evidence motion alleging that Mr. Veeken has failed to adduce any evidence with respect to two essential elements of the tort of negligence: 

[3]           This is the ruling on the Minister’s no evidence motion.

[4]           Officer McCreadie received a complaint from Priscilla Spratt on July 21, 2014 that her brother, Paul Veeken, had been charged substantively and was on bail conditions to have no contact with children.  Ms. Spratt advised, among other things, that her nephew told her he was on Mr. Veeken’s boat with him and another boy and that apparently Michaela Veeken had photographs of Mr. Veeken on a boat with boys.  Officer McCreadie commenced an investigation and eventually interviewed Michaela Veeken.  He confirmed that Mr. Veeken was subject to the following bail condition: 

[5]           As part of this investigation, Michaela Veeken gave a statement to police filed as Exhibit 2 in these proceedings.  Ms. Veeken alleged that Mr. Veeken was alone in a boat with children, but that other adults were “in the vicinity”, and that there were “adults wading in the water”.  She confirmed that when he was at the docks, there were “probably” other people around.  A significant part of the investigation consisted of photographs that Ms. Veeken provided to the officer, filed as Exhibit 3 in these proceedings.  Generally speaking, these photographs show Mr. Veeken in the presence of both children and adults.  Several of the photographs appear to be close up photographs of Mr. Veeken and it is unclear whether adults are nearby, outside the narrow framing of the photographs.  But generally, it is clear that Mr. Veeken is depicted in these photographs with both children who appear to be under the age of 16, and adults.  If any of the adults present had been aware of his conditions, then he would not have been in breach of his bail conditions.

[6]           The General Occurrence Hardcopy of officer McCreadie pertaining to this investigation was filed as Exhibit 16 in these proceedings.  On the last page of such report, officer McCreadie confirmed that as part of his decision making process with respect to this investigation, he “spoke to his supervisors and advised them of [Michaela] Veeken’s concerns and that she was afraid police speaking to her customers about this incident would cost her business.  It was decided that based upon Ms. Veeken’s statement and photos, she would be the only witness used as her evidence was enough to prove the breach charge”.

[7]           A police report was forwarded to Crown and charges were approved.  At some point thereafter, correspondence of Charlene Childs was forwarded to the Crown at the behest of Mr. Veeken.  This letter was filed as Exhibit 14 in these proceedings.  In summary, it provides some evidence tending to exonerate Mr. Veeken of the breach in question.  On January 11, 2016, Mr. Veeken resolved these charges by way of a section 810 peace bond.  At the conclusion of those proceedings, the breach allegation was stayed by Crown. 

[8]           Among other things, Mr. Veeken alleges that officer McCreadie and any superior officers who consulted with and\or directed officer McCreadie conducted a negligent investigation.  He argues that the breach allegations were serious and that not all reasonable lines of inquiry were pursued.  Specifically, he argues that had interviews of the adults present been undertaken, it would have exonerated him of the allegations which would have summarily ended the investigation in his favour.  He argues that this position is corroborated by the statement of Ms. Childs who claims (i) to have been a witness, (ii) aware of his conditions; and (iii) that other adults present were aware of his conditions. 

[9]           In Hill v. Hamilton-Wentworth regional Police Services Board, 2007 SCC 41, the Supreme Court of Canada recognized the tort of negligent investigation. In order to prove negligent investigation, a claimant must show: 

[10]        Mr. Kemp concedes that the officers in question owed Mr. Veeken a duty of care.

[11]        The appropriate standard of care for the tort of negligent investigation was established in Hill v. Hamilton-Wentworth, supra.  The “flexible overarching standard” is that of “a reasonable police officer in all the circumstances” - paragraph 68.  As explained at paragraph 73: 

[12]        The standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty, see Hill, supra, at paragraph 55.

[13]        Mr. Kemp on behalf of the Minister argues that there has been no evidence adduced on the element of breach of standard of care since Mr. Veeken did not call expert evidence with respect to such standard, and indeed, the general rule is that the content of the standard of care of a professional, such as a police officer will require expert evidence, see for example, Meady v. Greyhound Canada Transportation Corp. [2015] O.J. No. 55, 2015 ONCA 6. 

[14]        There are two distinct exceptions with respect to his general rule, however.  The first is when the police conduct is “so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care.” 

[15]        This is amplified at paragraph 82 of 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656 (CanLII), 132 O.R. (3d) 241:

[16]        While the police conduct in the case at hand may have been suboptimal or negligent, I summarily find that the conduct in question has no commerce with the words as set out above and I am in agreement with Mr. Kemp that it is not egregious police conduct.  Accordingly, this exception to the general requirement of adducing expert evidence is not available in this case. 

[17]        The other exception is for “non-technical matters or those of which an ordinary person may be expected to have knowledge”, see Krawchuk v. Scherbak (2011), 2011 ONCA 352 (CanLII), 106 O.R. (3d) 598 for example at paragraph 133.  Judge Juriansz in 495793 Ontario Ltd., supra, nuances this at paragraphs 56 and 57: 

[18]        I would agree with such analysis.  I must consider whether this particular police investigation and the surrounding circumstances are non-technical in nature, such that these matters fall within the knowledge and experience of the ordinary person. 

[19]        With respect to specific examples, I have considered the following cases:  In 495793 Ontario Ltd., supra, it was held that expert evidence was required as the case was:

[20]        Bergen v. Guliker, 2015 BCCA 283 involved the attempted police interdiction of a suicidal male, Mr. Guliker, which resulted in him fleeing the scene in a car.  The police followed him as he sped away, which eventually led to a significant collision between Mr. Guliker and the plaintiff driver of the other vehicle.  In assessing the standard of care of the police officers and whether expert evidence should’ve been adduced, the appeal court held that expert evidence was required:

[21]        In Bergen, supra, the court considered the case of Roy v. British Columbia (Attorney General), 2005 BCCA 88 at paragraphs 120 and 121:

[22]        Finally, in Bergen, supra, the court considered the decision of Camaso Estate v. Egan (2013), 2013 CarswellBC 69 at paragraph 122 and 123:

[23]        In each of the foregoing cases it was held that expert evidence was necessary.  They all involved investigatory aspects and decision making that was nuanced, multi-faceted and complex in the face of competing interests that had to be decided in a dynamic and difficult setting.  Such cases plainly involve fact patterns that are beyond the purview of ordinary experience for which expert evidence would be unnecessary.

[24]        These decisions stand in stark contrast to the circumstances of this case:  Officer McCreadie was investigating a very straightforward breach allegation.  Mr. Veeken’s conditions were before the officer and would have been understandable to the average individual and contained no jargon or difficult legal concepts:  Mr. Veeken was not to be in the company of children under the age of 16 unless he was in the company of an adult with knowledge of such conditions.  There is nothing complex or difficult to understand about that. 

[25]        The officer was presented with a straightforward account by Ms. Veeken and provided with photographs that showed Mr. Veeken in the company of children and other adults.  Officer McCreadie placed significance on Ms. Veeken’s economic interests and decided not to pursue any further investigation that might have exonerated Mr. Veeken.  Specifically, he didn’t speak with any of the adults present to ascertain whether they were aware of Mr. Veeken’s conditions.  Mr. Veeken argues this is a barebones, incomplete investigation that is negligent since there were plainly avenues of investigation available that may have exculpated Mr. Veeken that were not pursued.  Mr. Veeken submits that this is negligent and that the case speaks for itself without the need for expert evidence. 

[26]        Although expert evidence might have assisted this court significantly in terms of the ultimate question of negligence, I find that this is a non-technical investigation that is within the purview of ordinary, everyday experience and common sense for which expert evidence is not required.  Mr. Kemp concedes that if the court makes such a finding, then his no evidence motion with respect to standard of care fails on this point.  Without commenting on the caliber or quantum of evidence, I do find there has at least been some evidence adduced with respect to the element of breach of standard of care.

[27]        Proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss.  The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.  That link is causation.  Mr. Kemp argues that there has been no evidence adduced with respect to the requisite element of causation. 

[28]        The test for causation is explained in Clements v. Clements, 2012 SCC 32 at paragraphs 8 and 9:

[29]        Mr. Kemp in capable submissions argues that there is no causality since the Crown made the final decision, not the officer.  He argues that there is no negligence without causation which is determined by the “but for” test, submitting that ultimate causation lies with the Crown’s charge approval decision.  He argues that even if the investigation fell short (not conceding the point of course), it is still the crown that “made the call”, thereby abrogating any causal link between the officer’s investigation and charges being approved (ultimately leading to damages).

[30]        This argument is somewhat analogous to the further explanation of causation at paragraph 11 of Clements, supra, which speaks of inevitability:

[31]        With due respect, I disagree with Mr. Kemp’s analysis which presupposes that the breach report would have necessarily been forwarded to Crown for charge approval consideration, which is not true.  He’s argues the inevitability of Crown being the ultimate decision maker, which is not necessarily the case.  I’m mindful of Ms. Child’s correspondence.  She confirms that both she and other adults present at the scene were aware of Mr. Veeken’s conditions.  Had the officer spoken to them, which Mr. Veeken argues he should have done, this (it is argued) would have summarily exonerated Mr. Veeken, and officer McCreadie might have ended his investigation on the spot without forwarding any information to the crown, thereby ending the matter without charges and hence, without damages.  In other words, “but for” this alleged suboptimal police investigation; there would have been arguably no report whatsoever forwarded to the Crown.  The Crown only became involved in the decision making process after the causal link in the chain of an alleged negligent investigation. 

[32]        These points are of course a matter for argument at trial on the merits of the case, and I make no ultimate findings regarding the weight to give Ms. Child’s correspondence and to what extent causality may be established at the conclusion of the trial.  For the strict purposes of the no evidence motion application on the element of causality, I find at this juncture that there is some evidence before the court that “but for” the allegedly inadequate investigation of the police officer, there would have been no charges and hence no damages.

[33]        Accordingly, I find that there is some evidence on each of the elements of negligent investigation, and I dismiss Mr. Kemp’s no evidence motion.