SUPREME COURT OF CANADA
Chartier v. Att. Gen. (Que.), [1979] 2 S.C.R. 474
Date: 1979-05-08
Benny J. Chartier (Plaintiff) Appellant;
and
The Attorney General of the Province of Quebec (Defendant) Respondent.
1978: February 21; 1979: May 8.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Negligence — False arrest — Wrongfully charged with manslaughter — Fault of provincial police officers — Illegality of Coroner's warrant — Liability of Attorney General — Quantum of damages — Civil Code, arts. 1053, 1054 — Coroners' Act, R.S.Q. 1964, c. 29, s. 38 — Criminal Code, 1953-54 (Can.), c. 51, ss. 435, 440, 448.
In 1965 appellant was the victim of an erroneous identification by the Quebec Police Force. He was arrested, detained for thirty hours and charged with manslaughter pursuant to the verdict of a coroner's jury, which wrongly found him criminally responsible for the death of one Wilfrid Dumont, who died of a cerebral hemorrhage as the result of a blow received in the middle of a street. A few days after appellant was charged the real assailant was reported; he confessed and was charged. The charge against appellant was then withdrawn. By his petition of right against respondent, appellant claimed damages for the injury resulting from the false arrest and the wrongful charge. The Superior Court of Quebec and the Court of Appeal unanimously refused to accept that the Police had been at fault and considered the error made by the officers as pardonable; hence the appeal to this Court.
Held (Martland, Dickson, Beetz and Pratte JJ. dissenting in part): The appeal should be allowed and judgment rendered for appellant in the amount of $50,500.
Per Laskin C.J. and Ritchie, Spence, Pigeon and Estey JJ: The rule of this Court against interfering with the concurrent findings of lower courts admits of certain exceptions, particularly where the courts below have misapprehended or overlooked material evidence. In the case at bar the trial judge, whose findings were on the whole endorsed by the Court of Appeal, mentioned only the depositions of the provincial police officers. He did not say a word of the baldness of the true assailant,
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which was observed by four eyewitnesses, and which the Police Force did not take into account in preparing the composite sketch. Similarly, he did not make any mention at all of the erroneous testimony of two provincial police officers at the Coroner's inquest. He was also mistaken regarding the outcome of the line-ups, and spoke of circumstantial evidence when there was nothing in the record to support such a statement.
After examining the entire record, and even considering only facts established beyond dispute and, mostly, by documentary evidence, the conclusion necessarily emerges that the members of the Police Force in the performance of their duties committed acts of fault towards the appellant for which the Attorney General is liable as employer. While the officers may have been justified in asking appellant to undergo questioning, they were not justified in placing him under arrest and holding him in a cell for some thirty hours. The issuance of the Coroner's warrant, relied on by the Police Force, constituted an abuse of power. The Coroner could not make use of the power conferred on him by the Act to order the detention of a person as a witness in order to have him incarcerated as a suspect. The officers who used the warrant were aware of the cause of its invalidity. They no doubt believed that this was not illegal, but their error of law does not excuse them. With regard to the power of police officers to arrest without a warrant, this power may only be exercised if the officer has reasonable grounds for believing that someone has committed an indictable offence, and the officer's belief must take into account all the information available to him. In the case at bar the officers seem to have felt that they could pay attention only to what might serve to incriminate appellant, and disregard, as being grounds of defence for him to raise at his trial, anything that might exonerate him. This approach is erroneous. Finally, it must be said that the actions of the Police Force at the Coroner's inquest were nothing less than scandalous. It is not necessary to determine whether the officers acted knowingly, with the intention of misleading the court before which they were testifying. It is sufficient to say that this was an unpardonable and unjustifiable error, which proved to be extremely prejudicial to appellant since it is obvious that, had it not been for the reprehensible manoeuvring and testifying of the officers, the appellant could never have been charged. The Police Force officers committed various acts of fault with regard to appellant in the performance of their duties, and consequently the Attorney General, representing Her Majesty in right of the Province of Quebec, is liable as employer.
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As to the assessment of the prejudice suffered by appellant, who had been a branch manager for a life insurance company, the damage is truly incalculable and obviously substantial. Although appellant's dismissal, which took place a few months after the charge had been withdrawn, is not a direct consequence of the false charge, how can one not see in it the repercussions of the psychological shock appellant had undergone? To all this must be added the damage caused by the publicity given to the Coroner's inquest and the charge. For a man whose success in business depends on the public's confidence, this item of damage is particularly serious. Since in the circumstances it is not possible to calculate the monetary losses, it is proper that an overall figure be set for that and for the moral damage. Everything considered, the sum of $50,000 appears reasonable; there should be added $500 for legal fees and other incidental expenses.
Faber v. The Queen, [1976] 2 S.C.R. 9; Landreville v. Town of Boucherville, [1978] 2 S.C.R. 801; Lamb v. Benoit, [1959] S.C.R. 321; National Harbours Board v. Langelier, [1969] S.C.R. 60, referred to.
Per Martland, Dickson, Beetz and Pratte JJ: The action rests on the faults allegedly committed by Police Force officers. As admittedly the latter were respondent's employees and the acts complained of were committed in the performance of their duties, there are two questions to be answered: was the conduct of the police officers faulty, and if so, was it the cause of the injury suffered by appellant?
The period during which the Police Force could have committed a fault with respect to appellant may be divided into six separate stages. The evidence relating to each of these stages was weighed by the Superior Court and the Court of Appeal, and these two Courts concluded unanimously that the conduct of the Police Force was not at fault. In these circumstances the role of this Court is limited, since it will only intervene to vary concurring conclusions of lower courts on questions of fact when these are clearly incorrect. It is in fact the actions of the Police Force in the second stage, that of the arrest, and the fifth stage, of the Coroner's inquest, which raise doubts as to the merits of the concurring decisions of the Court of Appeal and the Superior Court.
The second stage is appellant's arrest, made pursuant to a warrant issued by the Coroner. It. appeared from the evidence that appellant was arrested solely in order for the Police Force to question him while he was in confinement, and not to ensure that he would attend the
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Coroner's inquest. Since s. 38 of the Coroners' Act does not authorize the arrest of an individual for that purpose, the warrant was issued without right. Although the police officers carried out the order contained in the warrant of arrest, it is impossible to say that they were unaware that this was an unlawful warrant. They knew or should have known. Although they did not necessarily act in bad faith, their good faith in the circumstances is not an excuse: their fault was in not knowing or being in error. By making the arrest of appellant as they did, the police officers did not behave as a reasonable person, concerned about the interests of others: they committed a fault within the meaning of art. 1053 C.C. making them liable, and hence respondent as well.
So far as the fifth stage, that of the Coroner's inquest, is concerned, appellant alleged that the Coroner did not hear certain witnesses, whose testimony would have been favourable to appellant, and that the police officers, by their "dol", prevented an individual, whose testimony would have cleared appellant, from testifying. This argument cannot be upheld, since it is the Coroner alone who can decide whether he should hear, or should not hear, a particular witness, and even if there was a wrongful intervention by an officer to prevent an individual from testifying, there is no relationship of cause and effect between this intervention and the fact that the Coroner decided not to call the witness. The other complaint was made against Sgt. Wilmot, alleging that he misled the jury by stating that appellant's hair had a darker colour at the time of the inquest than when he was questioned following his arrest, about six weeks before. The expert opinion prepared immediately after the holding of the Coroner's inquest established that appellant did not dye his hair. Accordingly, Wilmot stated as a fact something which he knew or ought to have known was a mere possibility. His good faith in this regard is not important. When a police officer testifies and represents as fact that which is only inference, suspicion or conjecture, he fails in his duty and commits a fault. However, as a fault does not necessarily give rise to liability, the question is whether this fault was the effective cause of the verdict, so that without it the jury would in all probability have found appellant innocent.
Examination of the evidence adduced before the jury indicates at least four factors which have a direct causal connection with the verdict and which, excluding the erroneous statement by Wilmot, are more than sufficient to lead to a verdict unfavourable to appellant. It is
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quite possible that Wilmot's statement contributed to the injury sustained by appellant, but it did not play a decisive role in bringing about the injury, and it cannot be said that if this statement had not been made the verdict would, in all probability, have been different. Respondent therefore cannot be held liable on account of this statement.
With regard to the quantum of damages, there is no proof of actual loss since the arrest and imprisonment of appellant are not related to the subsequent termination of his contract of employment. However, appellant suffered a definite injury for which he is entitled to compensation. As the amount of such compensation has to be arbitrarily determined, the sum of $10,000 appears to be adequate compensation for the injury sustained as a consequence of the arrest and unlawful confinement.
Canadian National Railway Company v. Vincent, [1979] 1 S.C.R. 364; Strasbourg v. Lavergne, [1956] Que. Q.B. 189; Chaput v. Romain, [1955] S.C.R. 834; Martel v. Hôtel-Dieu St-Valuer, [1969] S.C.R. 745, referred to.
APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Superior Court. Appeal allowed, Martland, Dickson, Beetz and Pratte JJ. dissenting in part.
Lawrence Corriveau, Q.C., for the appellant.
Marcel Guilbault, Q.C., for the respondent.
The judgment of Laskin C.J. and Ritchie, Spence, Pigeon and Estey JJ. was delivered by
PIGEON J.—This is an appeal by leave of this Court from a decision of the Court of Appeal of Quebec affirming the judgment of the Superior Court dismissing appellant's petition of right. Appellant was the victim of an erroneous identification by the Quebec Police Force. He was arrested, detained for thirty hours and charged with manslaughter of one Wilfrid Dumont, who died of a cerebral hemorrhage as the result of a blow received in the middle of a street. A few days after appellant was charged the real assailant was reported; he confessed and was charged. The charge against appellant was then withdrawn. He had obviously suffered serious harm. However, the courts below have refused to accept that the Quebec Police Force had been at fault and considered
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the error they had made as pardonable. A detailed account of the material facts is necessary for a proper review of these judgments.
On Sunday, July 11, 1965, at six o'clock in the evening, on Victoria Street in St. Lambert, a suburb of Montreal, a motorist about fifty years old became impatient because the driver of a new Cadillac in front of him was not moving nor pulling over to the right. He got out of his car and struck the other driver on the head with his fist. The latter, one Wilfrid Dumont, started his car and went home. He told his family about the incident, and then said to his son:
[TRANSLATION] Tell me, Jean, do you know any men who after they have played a poor game of golf become angry and take their anger out on other people like that?
The following day he gave his version of the incident to two City of St. Lambert policemen and later died in hospital. The autopsy report showed a cerebral hemorrhage apparently caused by a punch. The St. Lambert police had notices published asking anyone who had witnessed the incident to come forward. Here is what was said of the results in their report dated July 18:
Six witnesses came forward and identified themselves as follows:
Mr. & Mrs. Lloyd HOLLAND, age 41 and 35 respectively, visiting at 202 Elm St. St. Lambert, 671-7676. The mother of Mrs. Holland resides at 202 Elm St. Actual address of Mr. Mrs. Holland, Nassau, Bahamas, telephone 241444, Post office box 5828 m-s-.
Mr. René Forget, age 65, residing at 575 Notre Dame St. St.Lambert, phone number 671-5218.
Mr. A.C. Lemaitre, residing at 630 Victoria Ave, St.Lambert, 672-1292.
Steven Livie, age 12, residing at 80 St.Denis St. St.Lambert, 671-0357.
E. Turgeon, residing at 224 Prince Arthur St. St.Lambert, 671-0367.
The St. Lambert police's file contains the statements the officers were given by three of these six witnesses. First there is the joint statement given by Mr. and Mrs. Holland on July 15. As written by Cpl. Daigle it is as follows:
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[TRANSLATION] He—she—on the afternoon of Sunday, July Il, 1965, at about 6:00 p.m., saw Mr. Dumont's car stopped in the middle of VICTORIA Street close to WEBSTER Street; another driver stopped behind Mr. DUMONT and started shouting at him; the driver hit him in the face with his left fist, shouting at him (in English) "THIS WILL SHOW YOU TO KEEP ON THE RIGHT SIDE OF THE STREET!"; after striking him the man continued to yell at him, and then forced open the door of Mr. DUMONT'S car with his left hand, opening it about 18 inches; in order to escape from his assailant Mr. DUMONT stepped on the accelerator of his car and thus managed to shake off his assailant; the latter sped off from the scene heading toward Elm-LORNE Street.
DESCRIPTION: 5'7" ... 170 lbs ... 52 years old. Round face ... greying hair ... rather fat.
Combed to the back.
Very thin hair.
He was wearing a white short-sleeved shirt ... brown glasses ... dark trousers held up by a belt.
The suspect was driving an expensive car.
HARD TOP.
Off-white ... 1962? Chevrolet? ... Pontiac? Oldsmobile? ... Buick?
The other statement the St. Lambert police obtained was one given by the second to last witness, Steven Livie, and taken down by the same officer when this witness went to the station with his father. It read as follows:
at the time of the incident, he saw standing near ALBERT'S on VICTORIA. He was (saw) everything, that has happened to M. DUMONT ... informations that, we already have in our possession, but, he remembers this;
Suspect; about 50 years old.
bald head, with grey hair on the side.
5'7" ... fat.
bad temper, saliva at the mouth.
wears glass ... ordinary.
spoke in English.
hit Mr DUMONT with his left hand.
was driving a Buick? 62 or 63 or 64? light green.
The investigations of the St. Lambert police proved to be fruitless. Their only suspect cleared himself easily.
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On August 19, Cpl. Yves Lefebvre and Cpl. Camil DeGrâce of the Provincial Police Force began a new investigation. They went to examine the St. Lambert police's file and obtained a copy of its report. However, on September 16 DeGrâce, who denied having ever seen young Livie's statements, prepared a report in which one reads:
[TRANSLATION] Through radio and television the St. Lambert police were able to find four (4) eyewitnesses of this incident, namely:
1. Mr. and Mrs. Lloyd HOLLAND;
2. René FORGET;
3. Mr. A. C. LEMAÎTRE.
It will be seen that in compiling this list of eyewitnesses located by the St. Lambert police, the Quebec Police Force eliminated the last two and reduced the number to four. The St. Lambert report dated July 18 was, however, the first annex to the document. Following the paragraph I have just quoted the DeGrâce report contains the statements obtained by the Quebec Police Force from most of the known witnesses. In this case these are documents signed by the witnesses.
First there is the new version given by Mrs. Holland, her husband having returned to Nassau. Here is her description of the assailant:
[TRANSLATION] This is how I would describe the individual: size, medium; height, 5'8"; shoulders, broad; age, 50-55 years; weight, slightly fat, about 180 to 200 pounds; hair, black, somewhat greying, combed to the back and flat; not much hair, balding, very balding; dress, white short-sleeved shirt, open-necked; dark trousers, brown or grey ... I do not know whether he had a moustache or glasses. He looked clean. Oval face.
The assailant had a familiar face, but I certainly did not know him. He is the type of man you showed me in photograph No. 7955.
(Photograph No. 7955 seems to be that of the St. Lambert police's suspect. We shall see later what René Forget had to say about it.)
After this the report contains the statement given by Mr. and Mrs. Holland to the St. Lambert police and that police's information regarding their suspect.
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There follows the statement obtained by the Quebec Police Force from the witness Lemaître. The description he gives of the assailant reads as follows:
DESCRIPTION: Weight: 165, 170 lbs, 5'7" Face: round—Hair: Close cut, Grey—Age 50—Physically good shape, Had a pipe straight, had it when he drove away—Moustache ??? Glasses ???
This witness had also given the St. Lambert police a signed statement; all it contained by way of description of the assailant reads as follows:
... An elderly short thickset man in a short sleeved tee shirt and smoking a pipe, .. .
We now come to René Forget's statement taken on August 19 by officers Lefebvre and DeGrâce. After relating the facts, he says:
[TRANSLATION] I did not know this individual but I may have seen him before. I did not know the victim either. When the individual in the yellow car went by, turning onto Elm Street near the park where I was, he was about fifteen feet away; a Mr. Turgeon was with me then, so the individual looked at me as he was turning; he wore glasses, I don't know what kind; he didn't seem to be in too much of a hurry; I think he had a small square-cut moustache like Hitler's. The man in the photograph 7955 you are showing me is definitely not the right type. I don't know him either.
However, I think that the photograph I helped your artist make was the best likeness,
This is the best description I can give you: hair, brown (but not sure); weight, 170 lbs.; age, 50; height, 5'8".
White short-sleeved shirt; trousers, I didn't notice. He had a rather round face and was tanned. I did not notice a pipe, I think I could identify him if I saw him.
In the statement he had given the St. Lambert police the only description he gave of the assailant was:
[TRANSLATION] The man is six feet tall and wears a moustache.
Finally, DeGrâce's report contains the statement given to him by Ernest Turgeon. After relating the facts the latter said:
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[TRANSLATION] ... He did not have a pipe; I don't know* if he was wearing glasses. It was a face I had seen before but couldn't place.
Description: fairly round face that was very red from the blood rushing to his face, with deep-set eyes. Weight 170-160, age 50 or 60. Grey hair, not much on his head. Dress, I don't remember. The car was very clean and the licence contained the letter H. The licence plate was clean. I couldn't say what the make or colour of the first car was. I think I would be able to identify this man if I ever saw him again.
(*In the appeal case the French reads "vois", which does not make sense; in the handwritten original, which is somewhat difficult to read, the word is in fact "sais".)
As for young Steven Livie, he is completely overlooked in the DeGrâce report—not a word is said about him. His name and his statement were contained in the St. Lambert file, and he was brought to the provincial police headquarters on August 19 when a composite sketch was being prepared. There is no indication why he was not questioned.
We have little information on the preparation of the composite sketch since the defence did not call as a witness the artist who prepared it. It seems that the boy Steven Livie was the last witness to see the artist since he only saw the last composite drawing prepared, whereas the witness Forget certainly saw two drawings. Lefebvre and DeGrâce were on the premises since they witnessed the signing of the statement they took from Forget, after the latter had been interviewed by the artist. It must have been essentially on the basis of this witness's indications that the artist prepared the last composite sketch, the one that was used to find the suspect because the artist mistakenly added the small moustache which Forget alone had described.
The composite sketch with which Cpl. Lefebvre then undertook to locate the assailant, and which was to lead him to appellant, contained one major defect: it did not take into account a distinctive feature mentioned by four of the eyewitnesses [sic], namely a bald head or forehead. The witnesses whom Cpl. Lefebvre considered to have been in the best position to identify the assailant, Mr. an Mrs. Holland, had both mentioned it in their first
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version, which is essentially that of the husband, and where we read:
[TRANSLATION] Greying hair ... very thin hair. (cheveux très mince (sic))
Obviously this Anglophone used in French the words "cheveux très minces" to translate "very thin hair". His wife, who is Francophone, later said, in popular Quebec French:
[TRANSLATION] Black hair, somewhat greying ... balding, very balding (calé, très calé).
The Dictionnaire de la langue française au Canada, published by Bélisle, defines "caler" as [TRANSLATION] "to lose one's hair, to go bald".
The witness Turgeon said:
[TRANSLATION] Grey hair, not much on his head.
Steven Livie said:
Bald head, with grey hair on the side.
Lemaître said:
Hair, close cut, gray.
René Forget was not sure.
The pronounced baldness was thus noticed by four witnesses. Why was it not taken into account?
The grey hair on the side of the assailant's head observed by five of the six eyewitnesses will later play a major role in the identification, but since the composite sketch shows a full-face view of the man being sought, it does not play any part in that. The very opposite is true of the bald forehead. It is because this feature was not taken into account that the composite sketch led the Quebec Police Force to appellant. One of the exhibits in the record is a page from a newspaper at the top of which appears a photograph of appellant besides that of Wilfrid Dumont's assailant. What strikes one immediately is the contrast between the bald head of the real culprit and the fine head of hair on appellant. When one looks at the composite sketch (Exhibit P-11) one cannot fail to be struck by the resemblance to appellant owing to the hair on the forehead.
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In view of certain statements the victim made to his son after the incident, officer Lefebvre had reason to believe that the assailant was a golfer. He therefore went to see an employee of a golf club, to whom he showed the composite sketch. The latter gave him appellant's name, and he thought he had the culprit. On September 1 the Quebec Police Force obtained from the Coroner a warrant for the arrest of appellant as a witness under s. 38 of the Coroners' Act (R.S.Q. 1964, c. 29):
38. Previous to or during the inquest, the coroner shall have full power to order the detention, with or without a warrant, of any person or witness whom he may deem necessary, and who, in his opinion, may fail or refuse to be present at the inquest.
He may require such person or witness to furnish sufficient bail to ensure his being present at the inquest.
On September 2, at 9 o'clock, officers Lawton and DeGrâce asked appellant to go with them to provincial police headquarters. When questioned about his movements on July 11, he did not take the matter seriously at first. He was right in thinking there had been a mistake, but was wrong in assuming that the police would realize it. He made the error of thinking of the wrong week and said he had been in Poland Springs that day. A check revealed immediately that it was on the preceding Sunday that he had been in Poland Springs. Right up to the argument in this Court this mistake, understandable as it was, was relied on as an element of justification for having refused to credit appellant's denials. Anyone should be well aware how easy it is to make an honest error in a date. Did not DeGrâce have to admit at the trial that he had made one in a report where he gave August 10 instead of September 10, as the date of an interview with a witness?
At 11 o'clock, the Quebec Police Force began treating appellant no longer as a person submitting to questioning voluntarily, but as a suspect, as an accused person, under arrest. All his personal effects, even his belt, were taken from him and he was handcuffed and placed in a cell after being refused permission to talk to a lawyer or anyone
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else. It was not until 6 o'clock that he was allowed to telephone his wife to obtain more specific information on his activities of July Il, since she keeps a diary. She rushed to bring it to police headquarters because she was led to believe that she would be able to see her husband. This was refused, but the diary was taken. She was told that there was complete evidence against her husband, and here I must quote what she says Sgt. Wilmot told her:
He did say that if Mr. Chartier would only admit it it could all be cleared up very quickly.
An official line-up report shows that at 4 o'clock there was a line-up for viewing by the witness Lemaître. ln the list of persons lined up, No. 2 is described as follows:
[TRANSLATION] 2.—Benny CHARTIER (45 years old)—suspect being held in a cell.
The following is the account in the report of what the witness said:
No. 2 looks like the man that I saw hit another man in St. Lambert on the 11th of July. His height and general description is the same excepted his bum or rear end is too big. It's certainly is not any of the other four. The voice I heard resemble that of No. 1.
It will be noted that the response of the witness Lemaître is not an identification; it merely points out a resemblance while at the same time noting a dissimilarity.
This line-up, like all the others conducted subsequently, took place in specially designed premises. The witnesses see the individuals lined up through a special glass which allows them to see those in the line-up without the latter being able to see or hear them.
At twenty minutes to eight a second line-up was conducted where the witness was René Forget. The report signed by Sgt. Wilmot states as follows:
[TRANSLATION] He states that none of these individuals can be Mr. DUMONT's assailant .. .
The statement of this Iast witness is not a failure to identify, it exonerates appellant. Forget did not merely say that he could not identify any of the individuals in the line-up as Dumont's assailant; he
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stated positively that none of them could be the assailant. It was, as he said at the trial only, the fact that he knew appellant that enabled him to be so positive. Knowing him from before, he could be certain that he would have recognized him at the time of the incident if he had been the assailant.
Despite this appellant was kept in a cell and questioned on several occasions specifically about his movements on July 11. He agreed to take a lie detector test. Sgt. Wilmot, who conducted the test, entered "guilty knowledge" as the conclusion. This conclusion appears absurd to me, but the Quebec Police Force saw it as some confirmation of its suspicions. The following day appellant finally signed a statement in which he erroneously said that after playing golf on July 11 he went home to change and then went back to pick his wife up at the golf club between five and five-thirty. At about three o'clock he was released on his word after a release order was obtained from the Coroner, in which the latter stated that he was now satisfied that [TRANSLATION] "appellant will be present when the Court has set a date for the inquest".
On September 13, DeGrâce prepared a report in which he stated: [TRANSLATION] "The following are the reasons we have for believing that Mr. CHARTIER is our No. 1 suspect".
As in the report of September 16, there is the statement: [TRANSLATION] "We have four eyewitnesses". Concerning the two identification sessions, DeGrâce wrote:
[TRANSLATION] ... the witness LEMAÎTRE looked at the suspect for three (3) to four (4) minutes without looking at the other individuals and told us that there was a great resemblance, but he started to say to me in English: "I don't want to get involved", and he spoke of juries in Court ... Therefore the witness LEMAÎTRE did not wish to commit himself and be obliged to testify.
The other witness FORGET was not able to identify the suspect, but we were expecting this.
As to the witness Forget, a comparison with the official report shows how DeGrâce was distorting his statement before going on to say:
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[TRANSLATION] We had a photograph taken of the line-up and the only chance we have left is to try to have them identified by our two (2) best witnesses in Nassau, Mr. and Mrs. HOLLAND.
Sgt. Wilmot therefore went to Nassau with photographs. Some were of line-ups, others were the kind used by the criminal identity service. He obtained a statement from Mr. Holland which reads in part as follows:
After having examined the four group photographs, either individual No 2 or No 4 in photo no 3 resemble the man and from the 9 photographs of individual I picked two of the same man one without and one with glasses.
I am reasonably sure and that if I saw this man again in person I would recognize him immediately, ...
From Mrs. Holland Sgt. Wilmot obtained a statement in which she said:
I Mrs Loyd George Holland, Nassau Bahamas, do solemnly declare that from the nine individual photos you show me there is just one photo that resembles the man that I saw hit the driver of the green Cadillac in St. Lambert on July 11th 1965 (Photo de B).
Of the group photos that you show me there is just photo no 3 and individuals no 1 and no 2 that resemble the man that struck the other.
If I was to see this man again in person I might be able to identify him.
The Coroner's inquest was scheduled for October 21. The Hollands were brought back from Nassau. Cpl. Lefebvre prepared what he called a "brief" for the Crown Attorney. In it he gave the names of the six eyewitnesses, including Ernest Turgeon and Steven Livie. Concerning René Forget, all he said was:
[TRANSLATION] Is apparently an eyewitness of the incident. However, the details he gave and the description of the individual's car do not coincide with those given by the other witnesses. He is thus a second-rate witness.
It will be recalled that this witness knew appellant and stated on September 2 that the latter could not be the assailant. The other witness who knew appellant, although the Quebec Police Force
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did not yet know this, was Steven Livie. The "brief" contains the following concerning him:
[TRANSLATION] Boy of 12, also an eyewitness; he was on Victoria Street on July 11, 1965 when he noticed two (2) parked cars and a man hitting another man who was seated in one car. He provided a description of both the car and the assailant.
The inquest was to take place in the afternoon but appellant and all the eyewitnesses other than René Forget were summoned so that a line-up could be conducted. Much was made of the fact that when he saw appellant go by, Mr. Holland apparently said to the police: "Here's your man". This might have meant that here was the assailant, but in itself it merely signified that the man was their suspect. It must not be forgotten that one of them had gone to show him photographs of line-ups, indicating that they had already laid their hands on someone they wished to identify. In the official report of the line-up, Mr. Holland's statement reads as follows:
... "It is the 3rd man from the right, that's the man no 3, that I saw standing the side the Cadillac in St. Lambert the 11th of July 1965, I recognize him by his posture, build, facial features, stomach, etc. but the only thing that is different is that his hair was grey at the time at the incident."
Mrs. Holland's statement:
"The no 3 man strikes me has the man, he resembles the man that I saw strike the other on the 11th of July 1965, this my reaction from his height, build, etc. as far as I can remember."
Steven Livie's statement:
"I don't see the man there, the only one that 1 recognize is No. 3, Mr. CHARTIER who is friend of my father."
A. C. Lemaître's statement:
"Number 3 resembles the closest, it could be him but I cannot say positively."
Ernest Turgeon's statement:
[TRANSLATION] He cannot identify anyone.
It will be seen that there was no identification The Hollands merely pointed out a resemblance but with one difference noted by the husband
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unlike the assailant in the incident, Chartier did not have grey hair.
Given this, how was a verdict of criminal liability obtained against appellant? Here is how it happened. First of all, the witnesses who might have said that appellant could not have been the assailant were not called. Of the six eyewitnesses, only the Hollands were called upon to testify. Steven Livie's mother received a telephone call from Cpl. Lefebvre telling her that her son's presence would not be required. The Hollands refused to identify appellant before the Coroner. Mr. Holland said:
I seen an identical man but the hair was not grey, that's why I don't swear that is the man.
He added:
The only doubt I have about the man I must explain that I am definite that the man had grey hair on the side of his head; I am definite about that; that man this morning did not have that; I pointed him out immediately and I think I said to the Officer: "Wait a minute, the chap should have grey hair" I think I made that point clear.
His wife went further. When she was asked whether she had seen the assaillant since the incident, she said "no", even when she was reminded of the morning's identification session:
Q. Have you since the incident had the occasion to see the man?
A. No, sir.
Q. That you saw that day fight with the man in the car?
A. No, sir.
Q. Never?
A. No, sir.
Q. Have you been called by the police in a line-up to identify that man?
A. Yes.
Q. When was it?
A. This morning.
Her last answer in examination-in-chief was:
I am positive of that: he was a dark haired man going grey like a fifty year old man starting to get grey.
[Page 491]
No other witnesses were called to identify the suspect. How after this could the jury be persuaded to return a verdict of criminal liability against appellant? It is very simple. Camil DeGrâce and Frank Wilmot testified. The former said, in particular:
[TRANSLATION] EXAMINED BY THE CORONER
Q. Did you notice his physique, the colour of his hair, his complexion?
A. He had greying hair.
Q. And when was it that you saw this, the 11th or 12th?
A. September 2.
Q. September 2?
A. Yes.
EXAMINED BY MR. ANDRÉ CHALOUX:
Q. Could he have had red or brown hair at that time?
A. No, sir.
Q. Are you positive of that?
A. He had greying hair, fairly greying.
EXAMINED BY THE CORONER:
Q. Have you seen him since?
A. I saw him here today.
Q. Did you notice the colour of his hair?
A. It is darker.
After this Sgt. Frank Wilmot said in reply to questions by Mr. André Chaloux of the Crown Attorney's office:
[TRANSLATION] Q. Now, to your knowledge, did you notice during the questioning whether this person whom you were questioning had red or black or whatever colour hair?
A. It was certainly grey, rather like the colour ... not quite as white as that of Mr. Corriveau, somewhat blacker but ... I was very suprised [sic] today when I saw Mr. Chartier—he no longer has grey hair.
Q. You noticed today that Mr. Chartier did not today have the same colour hair he had when you questioned him?
A. Yes, that's right.
The Coroner refused to hear witnesses appellant wished to call in his defence. These witnesses were people with whom appellant had played golf on the
[Page 492]
day of the incident and who were prepared to state that he had not left the course until 6:30. The police had had the opportunity of questioning them.
Appellant then testified. He said, of course, that he had been in no way involved in the incident and stated that he had been at the golf course until about 6:30 on July 11. Suddenly he was questioned by one of the jurors as follows:
JUROR NUMBER 1:
Q. The day of the accident, July 11th, do you remember if you took any alcoholic beverages? A. I don't drink.
Q. In the parade with the policeman; do you remember if you were identified?
A. They told me every time that I was.
Q. Have you changed the color of your hair recently?
A. No, sir.
Q. It's the same as it was then?
A. Yes.
BY THE ATTORNEY FOR THE CROWN:
Q. Can you swear that Mr. Chartier?
A. Yes.
Q. Are you left handed or right handed?
A. Right handed, I write with the right hand, I do everything with the right hand, I threw ball with my right hand .. .
Q. Do you play golf with your right hand?
A. Yes.
Immediately following the verdict the Coroner issued a warrant for appellant's arrest, as provided under s. 462 of the Criminal Code. A charge of manslaughter was laid before a judge of the Sessions of the Peace. Appellant appeared and opted for a preliminary inquiry, which was scheduled for October 29. Having been granted bail he hastened to have his hair examined by an expert.
The media gave the case a great deal of publicity. It was then that, learning by this means that an innocent person had been charged, someone who knew the identity of the real culprit gave this information to the St. Lambert Chief of Police. The latter was able to verify this information with
[Page 493]
other persons who had also remained silent up to that time. Promptly, on Monday morning, October 25, he informed the Quebec Police Force of the need to reopen the investigation.
The day after the verdict, the Quebec Police Force requested an expert opinion to determine whether appelant had dyed hair, since otherwise it was obviously impossible for it to have ceased being grey at the temples between September 21 and October 21. Appellant immediately agreed willingly to what was being requested of him and samples of his hair were taken to be examined by an expert at the Quebec government forensic laboratory. The expert report dated November 2 is conclusive: no trace of dye.
In the meantime the true culprit had been arrested and had confessed. However, the Crown was unwilling to withdraw the charge against appellant on the day set for the preliminary inquiry and insisted that this be adjourned until November 5. On that date, the true culprit having been charged, the charge against appellant was withdrawn.
The question now is on what basis could the trial judge dismiss the claim when faced with these facts that are practically all established by undisputed documents. Counsel for the Attorney General relies on our rule against interference with concurrent findings. But this rule admits of certain exceptions, particularly where the courts below have misapprehended or overlooked material evidence. Here it must be noted that, out of all the evidence, the trial judge mentioned only the depositions of the provincial police officers. He did not say a word of the baldness of the true assailant, which was observed by four eyewitnesses, and which the Quebec Police Force did not take into account in preparing the composite sketch. On the contrary, he wrote:
[TRANSLATION] ... Sketches of the assailant were prepared with the help of the description supplied by the eyewitnesses ...
Similarly, the trial judge did not make any mention at all of the erroneous testimony of two provincial police officers at the Coroner's inquest.
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Regarding the outcome of the line-ups, he was completely mistaken. After quoting what the witnesses Holland and Lemaître had said, he wrote:
[TRANSLATION] ... Four line-ups were conducted during which plaintiff was positively recognized by at least one witness (Holland) and with a few minor reservations by two others (Mrs. Holland and Lemaître).
Appellant was not "positively recognized" by the witness Holland (the husband), since the latter said:
I recognize him by his posture, build, facial features, stomach, etc., but the only thing that is different is that his hair was grey at the time of the incident.
In order for this statement to be an identification it would have been necessary to establish that appellant had grey hair at the time of the incident, otherwise the witness Holland was not identifying appellant but rather exonerating him. Regardless of the number of similar characteristics, if there is one dissimilar feature there is no identification. According to the witness Holland, appellant did not have the assailant's grey hair. This witness therefore did not identify him; he merely noted a resemblance. The same must be said of Mrs. Holland's statement. Similarly, Lemaitre's statement at the line-up during the morning of October 21 revealed only a resemblance, to which he added "but I cannot say positively". The judge himself quoted these words spoken by Lemaître, but he misapprehended their significance. He made an even more serious error when saying later on:
[TRANSLATION] The other two witnesses, Livie and Turgeon, cannot identify anyone.
As far as Livie is concerned this statement is entirely incorrect; this witness identified appellant, but stated that he was not the assailant. He was not therefore a "negative witness", as the trial judge stated later when saying, before concluding:
[TRANSLATION] Plaintiff criticizes the Coroner for not having heard at the inquest all the witnesses who had some knowledge of the matter. In particular, plaintiff blames the officers, the Crown Attorney and the
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officers, for not having called the witnesses Livie, Forget and Turgeon, who were unable to positively identify plaintiff.
Is there fault in the circumstances in having failed to call negative witnesses who would not have been able to enlighten the jurors in any way? The Court is not prepared to say so. This is surely not an illegality nor even an irregularity. For the witness Chartier this was neither the time nor the place to present a defence. However, even if one were to consider this procedure abnormal, it would have been necessary to establish that plaintiff had been harmed thereby, and in order to do so, to show that the jury's verdict might have been different. There is nothing to indicate, of course, that even in this case the jurors would not have accepted only the version of the positive witnesses. Moreover, in addition to this identification evidence, there was also circumstantial evidence which could reasonably have been relied upon.
This reasoning appears to me entirely erroneous. How can it be thought that the jurors would not have been enlightened if the witnesses Forget and Livie had both said: "I know Benny Chartier and he is not Wilfrid Dumont's assailant"? How could the Hollands be considered "positive witnesses" without the erroneous testimony of the two Quebec Police Force officers who swore that on that day Chartier's hair was darker than when they arrested and questioned him on September 2? This was tantamount to falsely accusing appellant of having dyed his hair to avoid being recognized, as appears from a juror's questions. Since this is a matter of assessing the effect of testimony on the Coroner's jury, I will take the liberty of quoting the title and the opening sentence of a report of the inquest by a newspaper reporter which is an exhibit in the case:
[TRANSLATION] THE MAN WHO HAS CHANGED HIS HAIR COLOUR AND DENIES EVERYTHING ... WAS HE THE ONE WHO KILLED ANOTHER UNKNOWN DRIVER WITH A PUNCH?
Despite the fact that his hair was not the same colour as at the time of his arrest, a Coroner's jury unanimously held Bernard Chartier, 46 years old, of 775 Queen Blvd. in St. Lambert, criminally liable for the death of Mr. Wilfrid Dumont, aged 50, of 52 Montrose Street, in the same area.
As for "circumstantial evidence", there is absolutely nothing in the record to support the trial
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judge's statement. Since his findings were on the whole endorsed by the Court of Appeal, I do not find it necessary to analyse the reasons for the confirmatory judgment.
Having examined the entire record, I shall now consider whether the evidence shows that some members of the Quebec Police Force in the performance of their duties committed acts of fault towards the appellant for which the Attorney General must answer. I should add that in this analysis I will consider only facts established beyond dispute and, mostly, by documentary evidence. No issue of credibility arises on any material particular.
In this Court as in the courts below, much was made of the fact that twenty points of similarity were noted between appellant and the assailant described by the witnesses. I shall refrain from discussing the table where this analysis was made and showing all its weaknesses and uncertainties. I shall simply say, to mention only a few of the famous points of similarity, that in and around Montreal there must be a great many golfers who speak English and have military service records. There is justification for noting all such characteristics when looking for a suspect, but it is much more important to look for what may be distinctive.
I will not go so far as to say that the officers were not justified in asking Chartier to undergo voluntary questioning. However, I do not think that they were justified in placing him under arrest and holding him in a cell for some thirty hours.
The Quebec Police Force relied on the Coroner's warrant, but it should be noted that this warrant was to hold Chartier as a witness, not as a suspect. In actual fact it was as a suspect and not as a witness that the officers meant to hold him, and it was also as a suspect that they did hold him, as appears from their own documents. Since the Coroner did not testify, it must be presumed that the officers informed him properly, and that consequently the warrant was issued so that Chartier could be arrested as a suspect, not as a witness. In
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my opinion, the issuance of such a warrant by the Coroner for this purpose constituted an abuse of power.
It is the Criminal Code which governs the issuance of warrants of arrest for crimes. The general rule is set out in s. 440 of the Code of 1965 (now s. 455.3): a warrant is issued by a justice of the peace who has received an information in writing and under oath "where he considers that a case for so doing is made out". Section 448 (now 462) confers this power on a Coroner only following a verdict at the conclusion of an inquest.
In the case at bar it is perfectly clear that the Quebec Police Force officers did not consider there was any need to arrest appellant to ensure that he would be present as a witness at a Coroner's inquest or to question him. They were well aware that they were not dealing with a malefactor. The culprit was not an assassin, his act was obviously not premeditated or done with intent to kill the victim. Chartier was obviously arrested in order to intimidate him and to exert strong pressure on him by putting him in a cell and depriving him of the right to consult a lawyer. This was not done because the officers were afraid that he would try to abscond, but solely to try to wring a confession from him. The absurd result of the lie detector test on this man who was wholly innocent of any wrongdoing, as well as his various incorrect statements which are now being urged together with his initial mistake as elements of justification for this illegal treatment are properly traceable to it. There was so little reason to believe that it was necessary to detain Chartier to ensure his presence at the Coroner's inquest that, when after some thirty hours in custody, a written statement erroneously believed to be incriminating was obtained, he was released on his own word without bail, without a written recognizance or any restriction on his movements.
In Faber v. The Queen[2] this Court held that a Coroner's inquest is not a criminal proceeding in the strict sense. The matter is therefore governed
[Page 498]
by the rules of provincial administrative law. Very recently, in Landreville v. Town of Boucherville[3], this Court accepted the theory of the invalidity of administrative acts owing to an abuse of power and restored a judgment of the Superior Court invalidating an expropriation carried out for a reason other than the one given. Applying this principle to the case at bar, I must therefore say that the Coroner could not make use of his power to order the detention of a person as a witness in order to have him incarcerated as a suspect.
It must therefore be held that the Coroner's warrant was invalid as an abuse of power and that the officers who used it were aware of the cause of this invalidity. They no doubt believed that this was not illegal, but their error of law does not excuse them: Lamb v. Benoît[4], National Harbours Board v. Langelier[5]. In this last mentioned case, Martland J., speaking for the Court, quoted (at p. 65) from Dicey, "The Law of the Constitution", (10th ed., at p. 193) the following extract:
… With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen, The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity; liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, Mostyn v. Fabrigas, (1774) 1 Cowp. 161; Musgrave v. Pulido, (1879) 5 App. Cas. 102; Governor Wall's Case, (1802) 28 St. Tr. 51, a secretary of state, Entick v. Carrington, (1765) 19 St. Tr. 1030; K. & L. 174, a military officer, Phillips v. Eyre, (1867) L.R. 4 Q.B. 225; K. & L. 492, and all subordinates, though carrying out the commands of their official superiors, are responsible for any act which the law does not authorize as is any private and unofficial person.
Later on (at p. 66) Martland J. said:
It was stated again by Viscount Finlay in Johnstone v. Pedlar, [1921] 2 A.C. 262 at 27:
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It is the settled law of this country, applicable as much to Ireland as to England, that if a wrongful act has been committed against the person or the property of any person the wrongdoer cannot set up as a defence that the act was done by the command of the Crown. The Crown can do no wrong, and the Sovereign cannot be sued in tort, but the person who did the act is liable in damages, as any private person would be.
Under s. 435 of the Criminal Code in force in 1965, a peace officer could arrest a person without a warrant if he had reasonable and probable grounds for believing that he had committed an indictable offence. Did the officers have such grounds when they placed Chartier under arrest as a suspect? I do not think so. They seem to have felt that they could pay attention only to what might serve to incriminate appellant and disregard, as being grounds of defence for him to raise at his trial, anything that might exonerate him. This approach was accepted by the trial judge, but in my opinion it is erroneous.
For a peace officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing not reliable. Since the suspect was denying that he had been involved in the incident, and there was no reason to fear that he would run off, all the descriptions provided by the eyewitnesses should have been checked before he was incarcerated. If this had been done the only conclusion that could have been reached is the one René Forget arrived at during the line-up: this suspect could not be the true culprit. Even after this, appellant was not released but was kept in a cell all night, until three o'clock in the afternoon of the following day. Despite what is stated under his signature in the report on the September 2 line-up, Sgt. Wilmot, when testifying at the trial in the case at bar, dared say of the prisoner's situation at the end of the day on September 2: [TRANSLATION] "the witnesses identified him". Knowing how he testified
[Page 500]
at the Coroner's inquest, this is hardly surprising.
Turning now to the Coroner's inquest, it must be said that the actions of the Quebec Police Force were nothing less than scandalous. At the line-ups in the morning the officers heard the Hollands repeat that the assailant, unlike Chartier, had grey hair on the side of his head. They heard Steven Livie say that he knew Chartier and that he was not the assailant. What did they do? One of them telephoned young Livie's mother to cancel his subpoena as a witness at the inquest. Two others told the jurors that on September 2 Chartier had grey hair which he no longer had. Delictual obligations being joint and several, it does not matter that one of those two, Camil DeGrâce, had then ceased to be a member of the Quebec Police Force.
For the purposes of the case at bar it is not necessary to determine whether they did this knowingly with the intention of misleading the court before which they were testifying. It is sufficient to say that this was an unpardonable and unjustifiable error, which proved to be extremely prejudicial to appellant since it is obvious that, had it not been for the reprehensible manœuvring and testifying of the officers, Chartier could never have been charged. Without this there was a complete lack of evidence against him; the only two witnesses called to identify him had said they were unable to do so owing to the grey hair they had observed on the assailant's head and could not see on Chartier:
... the chap should have grey hair ... I don't swear that is the man.
I must therefore conclude that the Quebec Police Force officers committed various acts of fault with regard to appellant in the performance of their duties, and that consequently the Attorney General, representing Her Majesty in right of the Province of Quebec, is liable for those acts as their employer. Counsel for the respondent did not contend in this Court that the acts alleged against the Quebec Police Force officers should not be considered as done in the performance of their duties. I shall therefore refrain from considering the questionable theory, sometimes admitted in the case of
[Page 501]
municipal policemen, that they may not be considered to have been acting in the performance of their duties where their actions concern criminal offences rather than violations of municipal by-laws. Moreover, it seems obvious to me that since the entire administration of civil and criminal justice as a rule comes within provincial jurisdiction, there can be no question of making a distinction as to the liability of the provincial police officers on the basis of whether the case involves the investigation and prosecution of offences under federal legislative jurisdiction, as opposed to offences under provincial legislative jurisdiction.
As to the assessment of the prejudice suffered by appellant, this is a case where it is not possible to make a mathematical calculation; the damage suffered by appellant is truly incalculable and obviously substantial.
Appellant is an insurance agent. He had been a branch manager since March 1, 1962 for a major life insurance company. This is a position in which, while continuing to act as a sales agent looking for clients, he was in charge of a group of agents and was chiefly responsible for ensuring that their productivity was maintained. The branch had no fixed territory for its activities. Its manager and its agents were in competition with the managers and agents of other branches of the same company in the same urban community, in this case Montreal and the surrounding area. The anguish caused by the unjustified arrest, the detention in a cell for thirty hours, the two months under a charge of manslaughter with a risk of conviction and the prospect of a ruinous civil law-suit by the victim's family can easily be imagined. How could all this fail to put appellant in a frame of mind in which he was incapable of concentrating sufficiently to carry out his difficult work as a sales agent and branch manager? On January 26, 1966 he was dismissed. I will not say that the false charge was the direct cause of the dismissal which took place a few months after the charge had been withdrawn. However, how can one not see in it the repercussions of the psychological shock appellant had undergone? He might have lost his job anyway,
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but this took away from him any chance he might have had of keeping it.
The defence relied on the fact that appellant had been in financial difficulty long before his arrest. It filed, inter alia, a letter dated July 17, 1964, in which the branches' superintendent gave him sixty days to improve his situation. There are also other letters written during the first half of 1965 in which there is talk of reducing the monthly advances owing to insufficient productivity. Notwithstanding, a table placed on record indicates an average monthly production of $132,520 for the 12 months preceding September 1, 1965 and of $42,675 for the 4 months following that date. Since appellant was working on a commission basis, one can see how disastrous this must have been for him. He was obliged to start over again at square one with another life insurance company, a change that is particularly detrimental in this type of occupation owing to a special commission system which I do not consider necessary to describe.
To all this must be added the damage caused by the publicity given to the Coroner's inquest and the charge. The media are not to be blamed; they were only doing their job by reporting what had taken place in the Coroner's court. This even had certain beneficial effects, since it was the publicity given to the false charge which led some people who knew the identity of the true culprit to denounce him. The media did not fail to publicize appellant's exoneration just as they had publicized the charge, but the withdrawal of a charge never completely removes the harm done. For a man whose success in business depends on the public's confidence, this item of damage is particularly serious.
In the case at bar, the situation is similar, from the point of view of civil liability, to a case of defamation. There was no defamation on the part of the media because they only related what had taken place in open court. However, since this court was misled, those who misled it are liable for doing so. Appellant is therefore entitled to substantial compensation for the moral damage
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caused both by the false charge and by the false arrest, in addition to compensation for his monetary losses. Since in the circumstances it is not possible to calculate the amount of those losses, it is unnecessary to consider the items of damage separately and it is proper that an overall figure be set. Everything considered, the sum of $50,000 appears reasonable to me. There should be added $500 for legal fees and other expenses in connection with the Coroner's inquest.
For these reasons I am of the opinion that the decision of the Court of Appeal and the judgment of the Superior Court should be set aside and that appellant should recover judgment against respondent for the sum of $50,500 with interest at 5 per cent from February 24, 1966, with an additional compensation of 3 per cent per annum from January 1, 1972 and costs throughout.
The judgment of Martland, Dickson and Pratte JJ. was delivered by
PRATTE J. (dissenting in part)—Appellant is appealing from a unanimous decision of the Court of Appeal of the province of Quebec (Turgeon, Bélanger and Kaufman JJ.A.), which affirmed the judgment of the Superior Court for the district of Montreal (Philippe Pothier J.) dismissing appellant's petition of right, in which he asked that respondent be condemned to pay him damages of $90,525 as the result of an unlawful arrest of which he was allegedly the victim, mistreatment which he allegedly suffered during his imprisonment, and his indictment for manslaughter pursuant to the verdict of a coroner's jury, which wrongly found him criminally responsible for the death of one Wilfrid Dumont of St-Lambert, near Montreal.
On July 11, 1965, between 5:30 and 6:00 p.m., Wilfrid Dumont had just stopped his car at the intersection of Victoria and Webster Streets in St-Lambert; he was attacked by an unknown person, who punched him in the head several times with his fist. Dumont died the next day of a cerebral hemorrhage caused by the blows he had received the day before.
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On July 14 the St-Lambert Municipal Police ("the Municipal Police") began an investigation into the circumstances of the assault on Dumont, in an effort to establish the identity of his assailant. This investigation continued until August 18, 1965, when at the request of the Montreal Coroner ("the Coroner"), the Provincial Police Force ("the Police Force") took over from the Municipal Police and obtained from the latter the information in its possession. From then on the Police Force, acting for the Coroner, was solely responsible for the investigation.
On August 31 and September 1 the officers of the Police Force reviewed the situation; they concluded, on the basis of indications then on hand, that appellant was the only serious suspect.
The Coroner was told of the details of the investigation and he decided to proceed with the arrest of appellant. He issued a warrant of arrest on September 1.
Appellant was arrested on September 2 at 9:00 a.m. and released, after thirty hours' imprisonment, at 2:45 p.m. on September 3.
During this period of confinement, appellant was questioned three times; he finally signed a statement in which, though he denied being Dumont's attacker, he admitted driving in a light-coloured car, similar to the attacker's, on the day and at the time and place where the incident occurred.
Appellant maintained that during this period of confinement he was subjected to mistreatment.
The Coroner's inquest was held on the afternoon of October 21. The jury found unanimously that Dumont had died a violent death and that appellant should be held criminally responsible. In accordance with s. 462 Cr.C. appellant was then charged with manslaughter; he was granted bail and the preliminary inquiry was set for October 29, then subsequently adjourned to November 5.
On that date the Crown withdrew the information against appellant who was released. As a result of the publicity surrounding the Coroner's
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verdict against appellant, the Police Force received information indicating that Dumont's attacker was a man named Larivière, rather than Chartier. On November 5, Larivière was himself charged with manslaughter; he was convicted and sentenced on January 13, 1967.
It is certain that appellant was not actually the attacker of Dumont; he was the victim of a judicial mistake which unquestionably caused him injury, and for which he is now seeking to obtain compensation from respondent.
Appellant's action rests solely on the faults allegedly committed by respondent's employees, the police officers, in the performance of their duties, for which respondent should be held liable as employer. In this Court, respondent did not deny the existence of the «lien de préposition» envisaged by art. 1054 C.C.; nor did he deny that the acts attributed to members of the Police Force were committed in the performance of their duties. There are thus two questions to be answered: was the conduct of the police officers faulty, and if so, was it the cause of the injury suffered by appellant?
The period during which the Police Force could have committed a fault with respect to appellant may be divided into six separate stages.
The first stage begins when the Police Force took charge of the investigation, on August 18, 1965, and ends when the Coroner decided to proceed with the arrest of appellant; the second stage relates to the arrest itself; the third covers the period of imprisonment; the fourth extends from the release of appellant to the Coroner's inquest; the fifth takes in the Coroner's inquest itself; and the sixth runs from the Coroner's inquest to the time the information was withdrawn.
The evidence relating to each of these stages is considerable; it was weighed by the Superior Court and the Court of Appeal and, based on their consideration of the facts, these two Courts concluded unanimously that the conduct of the Police Force was not at fault. In these circumstances, the role of this Court is limited: it is a long-established rule that we only intervene to vary concurring
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conclusions of lower courts on questions of fact when these are clearly incorrect. In my opinion, it is not possible to reach this conclusion in respect of the first, third, fourth and sixth stages.
In the first stage, the Police Force continued with the investigation which had been begun by the Municipal Police, to find Dumont's attacker. A number of individuals were suspected; a number of inquiries were made; finally, the Police Force dismissed all the other suspects and decided they should question Chartier. Although the investigation may not have been perfect, I do not see how it is possible to regard as faulty the actions of the Police Force in this stage. It can of course be said, in the light of subsequent events, that since Chartier was not the attacker, the Police Force was wrong to suspect him; but the fact that it may have committed an error of judgment does not make its action a delict or quasi-delict. The Police Force commits no fault when it decides to question some-one whom it believes, even wrongly, is in a position to provide useful information on the circumstances surrounding the commission of a crime. Moreover, appellant himself is not complaining of the fact that the Police Force wanted to question him, but rather that it arrested him.
The third stage covers the period of appellant's imprisonment; he maintained that during that time he was the object of threats and insults, which is categorically denied by the Police Force. The trial judge preferred to believe the latter; the Court of Appeal stated that [TRANSLATION] "he was right to do so". I do not see any basis for varying the unanimous findings of the Court of Appeal and the Superior Court.
In the fourth stage, extending from appellant's release to the Coroner's inquest, the Police Force proceeded with its investigation; it had in its possession the statement which appellant signed immediately before his release, and which contradicted in two important particulars the two versions he had earlier given orally to police officers.
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Curiously, this written version, in contrast with appellant's earlier oral statements, tended to incriminate him. The police officers therefore became more suspicious, and increasingly certain that they had the true assailant. They nevertheless attempted to check the truth of appellant's written version, as to the time when he was supposed to have been driving at the scene of the crime. Their investigation proved to be difficult: the witnesses they met had already given sworn statements to appellant or his lawyer, and for the most part the information they gave the police officers was not sufficiently precise for the latter to totally disregard the written version given by appellant, and so to exonerate him.
The lower courts correctly found that during this fourth stage the police officers did not commit any fault that might make respondent liable to appellant.
The same is true of the sixth stage, running from the Coroner's inquest to appellant's release. The only complaint made by appellant regarding the conduct of the police officers during this stage is that withdrawal of the information was unnecessarily delayed. The decision to withdraw the information was made by the Crown: it, cannot be a basis for liability by the police officers. Furthermore, there was no unnecessary delay. Appellant's preliminary inquiry was first set for October 24; on that date, at the Crown's request and despite objections by appellant (whose counsel was however absent), the judge adjourned the inquiry to November 5, when the information was withdrawn and Larivière arrested. Appellant has no basis for complaint on this point.
I therefore conclude that there is no reason for this Court to set aside the concurrent findings of the Court of Appeal and the Superior Court concerning the conduct of the police officers during each of the four stages referred to above.
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This solution does not emerge quite as clearly, however, from consideration of the Police Force's actions in the second and fifth stages.
The second stage is appellant's arrest, made pursuant to a warrant issued by the Coroner for reasons stated as follows:
[TRANSLATION] WHEREAS on July 11, 1965, at St-Lambert, district of Montreal, Mr. Wilfrid Dumont was killed;
WHEREAS I have good reason to believe that Mr. Wilfrid Dumont did not die of natural or accidental causes, but as the result of circumstances entailing the participation of another person;
WHEREAS under s. 38 of the Coroners' Act, I have power to order any person to be detained as a witness;
WHEREAS the deposition of Benny Chartier is necessary and of great importance;
WHEREAS I have reason to believe that the said Benny Chartier may not comply with his summons as a witness at the inquest.
Section 38 of the Coroners' Act (R.S.Q. 1964, c. 29) reads as follows:
38. Previous to or during the inquest, the coroner shall have full power to order the detention, with or without a warrant, of any person or witness whom he may deem necessary, and who, in his opinion, may fail or refuse to be present at the inquest.
He may require such person or witness to furnish sufficient bail to ensure his being present at the inquest.
The Coroner does not have an unlimited power of arrest; his power is circumscribed by the actual wording of s. 38, which is categorical: the arrest of an individual is only permitted if the Coroner believes he will be needed at the inquest, and if, further, he believes the individual may fail or refuse to be present at the inquest. The Coroner cannot therefore, under this provision or any other applicable to the case at bar, order a person to be arrested merely to allow police officers to question him while he is in confinement, and before the Coroner holds his inquest.
[Page 509]
Why was Chartier arrested? Was it to ensure that he would be present at the inquest, because it was feared he would not be present, or was it in order to question him in circumstances better suited to the obtaining of incriminating admissions?
The Coroner issued the warrant of arrest on September 1, after being informed of the progress of the investigation by the police officers. The latter did not have in their possession, or provide the Coroner, with any information likely to make him fear or suspect, much less believe, that appellant might fail to attend a Coroner's inquest if required to do so. Nothing in the evidence supports the Coroner's statement in the arrest warrant that he had [TRANSLATION] "reason to believe that the said Benny Chartier may not comply with his summons as a witness at the inquest". Before the arrest, Cpl. Lefebvre of the Police Force told Chief Reilly of the Municipal Police that they had decided to arrest appellant for questioning: Reilly said, referring to this conversation with Lefebvre,
Corporal Lefebvre in my office, in front of my Lieutenant MacMeekan, said: "We are going to pick up Benny Chartier for questioning."
Chartier was arrested at 9 a.m. on September 2, near his Montreal office. He was taken at once to the police headquarters in that city, and was questioned there until 11 a.m., when he was taken to his cell. At about 12:20 p.m. Chartier agreed to take a lie detector test, and at 4 p.m. he took part in a line-up and was questioned again; at 7:40 p.m. Chartier took part in a second line-up, and was questioned from 8 p.m. to 11:40 p.m., when he was taken back to his cell for the night. The next morning, September 3, Chartier asked to be taken to the barber; he then made it known that he was ready to make a written statement. From noon to 2 p.m. he gave a version of the facts which was taken down in writing, and which he signed. This version contradicted on points which the police considered significant the information he had earlier given orally to the Police Force: thus, he stated that on the day of the accident he passed by the site of the incident on his way home from the Golf Club
[Page 510]
which he left between 5:00 and 5:30 p.m. After signing this statement, Chartier was taken to the Coroner's office, where the Assistant Coroner released him.
Cpl. DeGrâce was questioned on what took place once Chartier had signed his statement:
[TRANSLATION] Q. After, after this statement, this signature was placed on the statement, what happened regarding Mr. Chartier?
A. After that, we took Mr. Chartier back to the Coroner's office and he was released the same day.
Wilmot, for his part, stated that he telephoned the Coroner at 10:50 a.m., [TRANSLATION] "to explain the result of the investigation involving Mr. Chartier, and it was decided to release Mr. Chartier the same day, and an appointment was made for 2:30 p.m. the same day".
The release order signed by the Coroner on September 3 indicates that appellant was released [TRANSLATION] "as he will be present when the Court has set a date for the inquest". I must say I cannot understand how the Coroner came to this conclusion. When he was arrested, appellant knew almost nothing of the attack on Dumont; he did not know he was suspected of being responsible for it; when he was released, he knew this, and by his written statement he confirmed the suspicions of the police officers. If, at the time of the arrest, the Coroner really feared that appellant might not be present at the inquest, he had all the more reason to persist in that belief after the imprisonment. Furthermore, the Coroner had not seen Chartier while he was imprisoned, and the officers had obtained no assurance or guarantee from him regarding his presence at the inquest: the matter did not even come up. When Chartier was released, the Assistant Coroner told him he would probably be called as a witness at the inquest to be held by the Coroner into the death of Dumont, and asked him not to leave the country; no bail or written undertaking was required from Chartier.
[Page 511]
One conclusion obviously emerges from all of this: Chartier was arrested solely in order for the Police Force to question him while he was in confinement, and not to ensure that he would attend the Coroner's inquest.
As mentioned above, s. 38 of the Coroners' Act does not authorize the arrest of an individual for that purpose.
The warrant of arrest against Chartier was therefore issued without right. In my opinion, the Court of Appeal and the trial court both erred in law, by giving the power of the Coroner to arrest a scope that greatly exceeds that permitted by the wording of s. 38 of the Coroners' Act.
The trial judge observed:
[TRANSLATION] In view of this information, the Court concludes that the Coroner could reasonably have formed the opinion that plaintiff was in a position to enlighten him as to the causes and circumstances of the death of Dumont (Coroners' Act, R.S.Q. 1964, c. 29, s. 18). He accordingly compelled him to appear for questioning (s. 38). In other words, we are not concerned here with one individual laying an information against another and causing him to be apprehended by the police. There is not even an informant, and there is no accused. The Coroner has a right and a duty to seek information from any individual likely to be able to enlighten him concerning a death from accidental causes.
The trial judge appears to me to be confusing the Coroner's inquest with the police investigation. The powers of the Coroner to call witnesses and to make arrests must only be exercised for purposes of the inquest which the Coroner himself is to hold, not as part of the police investigation which often precedes the Coroner's inquest. The Coroner has no power to call witnesses to appear before police officers to be questioned by them; nor does he have a power to have a person arrested so as to facilitate his interrogation by the police.
Turgeon J.A. of the Court of Appeal also seems to me to have erred as to the extent of the powers of arrest enjoyed by the Coroner. Speaking of Chartier's arrest, which was made on September 2, he wrote:
[Page 512]
[TRANSLATION] We have seen that this arrest was made by DeGrâce and Wilmot pursuant to a warrant of the Coroner, who was made aware of the entire police file and who, under the Coroners' Act (R.S.Q. 1964, c. 29, ss. 18 and 38), had full powers to issue such a warrant.
In my view, this statement, in the context of the case at bar, is incorrect: the Coroner did not have the power to order the arrest of Chartier for the purposes of a police interrogation.
Such being the case, let us now consider whether, in carrying out the order contained in the warrant of arrest which was probably issued at their request, the police officers committed a fault within the meaning of art. 1053 C.C. In order to determine whether the officers committed a fault, the question is whether, in the case at bar, their conduct was that which would have had a reasonable person, concerned about the interests of others, placed in the same circumstances as those in which they found themselves (Mazeaud and Tune, Responsabilité civile delictuelle et contractuelle, 6th ed., t. 1, No. 439, p. 504, and Note 3, p. 505; Canadian National Railway Company v. Vincent[6].
The characteristics of this prudent and reasonable person, whose conduct we are to use as a guide, will vary according to the circumstances Esmein and Ponsard (Aubry and Rau, Droit civil français, 7th ed., t. 6, p. 527) specifically emphasize the diversity of the model:
[TRANSLATION] It would be a mistake, however, to think that the comparison model to which reference is made in assessing the conduct of men is uniform and unchanging. In reality, it varies depending on the situation.
No one disputes that a professional, in the practice of his profession, must demonstrate knowledge and skill not possessed by the ordinarily prudent man; and anyone who, though not a professional, undertakes a task requiring technical knowledge, is also responsible for faults which a trained individual would not commit.
Apart from professional activities, a special comparison model must also be developed for dealing with an activity requiring special training. For example, in
[Page 513]
assessing the conduct of a motorist, we compare him with a model driver; to determine who caused a mountain accident, we consider what a model climber would do, and so on. These are all special models, who are assumed to have certain knowledge or skills, and are therefore not to be confused with the general model of the ordinarily prudent or reasonable man.
Planiol observes (Traité élémentaire de droit civil, 11th ed., t. 2, No. 865 bis): [TRANSLATION] "The function of the judge is always the same: it is to compare the behaviour of the person responsible for the damage with the ordinary and usual behaviour of a man practising the same profession".
In the case at bar, therefore, the conduct of the police officers cannot be assessed without considering the fact that they are professionals whose duty is, first, to maintain peace, order and public safety, and second, to prevent and investigate criminal offences and breaches of provincial laws (Provincial Police Act, R.S.Q. 1964, c. 40 s. 4); they are peace officers and have all the powers, attributions and privileges thereof (s. 7).
The authority of a police officer is not of course unlimited; he must know its limits, and if he disregards or ignores them, he commits a fault: ignorance of what a person is supposed to know is not an excuse (Strasbourg v. Lavergne[7], at pp. 193 and 194).
The police officers certainly had the duty to inquire into the circumstances of the death of Wilfrid Dumont and, if they saw fit, to try to obtain information from Chartier; but they were required to know that this duty of inquiry did not authorize them to invade personal freedom, even with the otherwise laudable aim of trying to find the guilty party. It certainly is not too much to expect a member of the Police Force to know that our laws do not allow him to arrest a person merely in order to question him, especially when he cannot proceed to his arrest without warrant.
[Page 514]
It was submitted by respondent that the police officers committed no fault, since they were only carrying out the order contained in the warrant of arrest. Against that, it must be said that a subordinate is not necessarily exempt from liability because the wrongful act was committed in order to comply with a superior's order. In Chaput v. Romain[8], this Court held police officers who obeyed their superior's order liable in delict. Taschereau J., as he then was, speaking for Kerwin C.J. and Estey J., said at p. 842:
[TRANSLATION] Furthermore, no reliance can be placed on the fact that respondents may have acted in obedience to a superior's orders. Obedience to a superior's orders is not always an excuse. The subordinate must not act rashly, and when he is made reasonably aware that the facts which led to the order he received were without foundation, he must back down.
Though expressing his views differently, Fauteux J. concurred with this opinion (at pp. 865 and 866).
See also Planiol and Ripert, Traité pratique de droit civil français, 2nd ed., t. 6, No. 560, p. 777; Mazeaud and Tunc, op. cit., No. 497, pp. 559 and 560; Demogue, Des obligations en général, t. 3, No. 320, p. 517; Aubry and Rau, op. cit., No. 362, pp. 538 and 539.
Here, it seems impossible to say that the police officers were unaware that the Coroner's warrant was unlawful. They knew or should have known. In the first place, the warrant itself stated the facts alleged to be in support of its being issued: the last paragraph of the preamble stated that the Coroner had "reason to believe that the said Benny Chartier may not comply with his summons as a witness at the inquest". The officers must have known that this statement was untrue. They were the ones who did the investigation for the Coroner, and communicated the results to him; they knew of no fact suggesting that Chartier might "not comply with his summons as a witness at the inquest". The officers knew that the sole purpose of the arrest was to enable them to carry out the interrogation of Chartier while he was in confinement. Moreover, while there is no direct evidence that it was
[Page 515]
the police officers who asked the Coroner to order appellant's arrest, so that they could conduct their police investigation under more favourable conditions, the evidence as a whole makes it difficult to come to any other conclusion. The warrant indicated on its face that it was issued for a reason which the officers knew to be false, and their actions while appellant was incarcerated, like those of the Coroner, clearly indicate that they all were fully aware of the true purpose of the warrant.
I therefore conclude that the police officers were aware of the fact that the arrest of Chartier was ordered for a purpose other than that stated in s. 38 of the Coroners' Act, which is in fact specifically mentioned in the warrant. The officers did not necessarily act in bad faith, but in the circumstances their good faith is not an excuse: their fault was in not knowing or being in error (Planiol and Ripert, op cit., No. 522, p. 705).
By making the arrest of Chartier as they did, the police officers did not behave as "a reasonable person, concerned about the interests of others": they committed a fault making them liable, and hence respondent as well.
What about the conduct of the police officers during the fifth stage, that of the Coroner's inquest? Did they act then as reasonable persons, concerned for the interests of others?
Appellant raised several grounds of attack.
First, he maintained that the officers did not give the Coroner or the Crown prosecutor all the information in their possession; in particular, that they concealed information likely to exonerate Chartier. This submission was made before the Court of Appeal, but it was dismissed. Turgeon J.A. said, inter alia:
[TRANSLATION] Counsel for the Crown was given full information on the police investigation, as was the Conorer.
[Page 516]
The police had reported fully on the investigation to the Coroner and to counsel for the Crown, and did not themselves have anyone to call at the inquest.
It was alleged that the police did not tell counsel for the Crown all they knew. The evidence proved the contrary. It was established that the police handed their entire file over to counsel for the Crown, and even prepared a summary [sic] of that file.
There is no basis in the evidence which would enable this Court to vary this finding of facts of Turgeon J.A.
Appellant then submitted that the police officers are at fault because the Coroner did not hear certain witnesses, whose testimony would have been favourable to appellant. This allegation cannot be upheld against the officers. The inquest was not an investigation by the police, it was a Coroner's inquest. When an individual dies under certain circumstances, the Coroners' Act requires the Coroner to hold an inquest (s. 23). At the inquest, the Coroner hears such persons "as are, in his opinion, in a position to enlighten him regarding the causes and circumstances of the death" (s. 18). To this end, he has the power to summon jurors and witnesses (s. 32), but he is obligated to summon the witnesses suggested to him by counsel for the Crown, who alone has a right to be present at the inquest and to examine and cross-examine witnesses. No other interested party may put questions to a witness without the Coroner's permission. The provisions of the Act leave no doubt in this regard: the Police Force enjoys no authority over the summoning, hearing and examination of witnesses. Subject to the right of counsel for the Crown, it is the Coroner alone who can decide whether he should hear, or should not hear, a particular witness. The decision of the Coroner in this regard cannot therefore be blamed on the police officers.
However, appellant contended that the police officers, by their "dol", prevented Steven Livie from testifying, and that his testimony would have cleared appellant.
Livie, then 12 years old, was an eyewitness to the attack; he told his story to the Municipal
[Page 517]
Police officers and to those of the Police Force. He took part, along with other eyewitnesses, in the preparation of a sketch which was used by the Police Force to trace the guilty party. His name was mentioned to the Coroner and to counsel for the Crown along with others, as witnesses to be summoned to the Coroner's inquest. On the morning of the inquest, at the request of the Police Force, Livie was present at a line-up which included appellant, and in which the latter was identified by the number 3. Livie stated:
I don't see the man there, the only one that I recognize is No. 3, Mr. CHARTIER who is a friend of my father.
In the absence of any indication to the contrary, it must be assumed that Livie would have made the same statement if he had testified before the Coroner.
Appellant submitted, first, that Livie was not heard as a witness because of the wrongful interference of the police officers; and he argued that the jury verdict would have been different if Livie had been heard. He concluded that the jury verdict was caused by the officers' fault.
Even assuming that the conduct of Cpl. Lefebvre on this occasion was reprehensible, it does not follow that this fault by Lefebvre was the cause of the fact that Livie did not testify. It is important not to confuse someone's presence at a hearing with his being called as a witness. The fact that a person is present at a hearing, voluntarily or because he was summoned, does not mean he will necessarily be heard. The hearing of witnesses, as noted above, is exclusively a matter for the Coroner and counsel for the Crown. The Coroners' Act confers the widest possible discretion on them in this regard, it confers none on police officers. I can find nothing in the evidence that would justify the inference that the Coroner would have called Livie if he had been present. Neither the Coroner nor counsel for the Crown asked that his name be called as a witness during the inquest; no one was surprised by his absence. In such circumstances, I feel it is impossible to say that the Coroner would have decided to hear Livie if the latter had been present. Rather, the opposite conclusion must be
[Page 518]
drawn: the Coroner did not even hear all the witnesses he had summoned himself; he refused to hear those who might have established that appellant was not at the site of the incident when it took place.
There is no relationship of cause and effect between the intervention of Cpl. Lefebvre with Mrs. Livie, even if it were wrongful, and the fact that the Coroner decided not to call Livie. In my view this complaint by appellant is groundless; it therefore is not necessary to decide whether Livie's testimony would have produced a different verdict.
Finally, appellant contended that Sgt. Wilmot misled the jury by stating that his hair had a darker colour at the time of the inquest than when he was questioned following his arrest, about six weeks before. Wilmot was questioned by counsel for the Crown:
[TRANSLATION] Q. Now, to your knowledge, did you notice during the questioning whether this person whom you were questioning had red or black or whatever colour hair?
A. It was certainly grey, rather like the colour ... not quite as white as that of Mr. Corriveau, somewhat blacker but ... I was very surprised [sic] today when I saw Mr. Chartier—he no longer has grey hair.
Q. You noticed today that Mr. Chartier did not today have the same colour hair he had when you questioned him?
A. Yes, that's right.
Appellant testified at the Coroner's inquest; he was the last witness. At the close of his testimony, he was questioned by a juror, and then by counsel for the Crown:
JUROR NUMBER 1:
Q. Have you changed the colour of your hair recently?
A. No, sir.
Q. It's the same as it was then?
A. Yes.
[Page 519]
BY THE ATTORNEY FOR THE CROWN:
Q. Can you swear that Mr. Chartier?
A. Yes.
To understand the significance of these two exchanges, it is necessary to know that according to the evidence submitted to the Coroner, the colour of the hair was the only feature that distinguished appellant from the real attacker. Two witnesses were heard by the Coroner on the question of identification: Mr. and Mrs. Holland. Turgeon J.A. aptly summarized their testimony when he said that they [TRANSLATION] "swore that appellant was an identical man to the attacker, except that the latter had greying hair".
Holland testified to the Coroner in part as follows:
Q. What was the color of his hair?
A. The color of his hair was a brown color but steel grey on the side such as mine.
Q. Grey on the side? A. Yes.
Q. Did you have the chance since the incident to see that man again?
A. I seen (sic) an identical man but the hair was not grey, that's (sic) why I don't swear that is the man.
Q. Have you been asked by the police department to try to identify that man in a line-up?
A. Yes I have. I attended a line up this day, this morning at ten o'clock.
Q. How many people were in that line-up? A. Four people.
Q. Did you see anyone that could be the man that you saw that day?
A. Yes, I picked him up immediately when I went in the room.
A
The only doubt I have about that man I must explain that I am definite that the man had grey hair on the side of his head; I am definite about that; that man this morning did not have that; I pointed him out immediately and I think I said to the Officer: "Waite (sic) a minute, the chap should have grey hair" I think I made that point clear.
[Page 520]
Q. If we forget about the hair; could you be sure it's the same man you saw that day in the fight with the man and the other fellow; if we forget about the hair?
A. I say he is an identical man and I will not commit myself until we know if he has grey hair; I don't want to commit myself. I say he is an identical man but I should like to see him with grey hair.
Q. Your opinion is — if he had grey hair today, could be the man?
A. If he had grey hair and drove a 61 or 62 Pontiac, Oldsmobile or Chevrolet, he is the man.
Q. You are not ready to say it's him?
A. Everything about him is identical to the man except the grey hair.
Q. If he never had grey hair?
A. Then he must be someone exactly like him.
It should not be concluded, however, that appellant had no gray hair; his own expert witness stated the contrary in a report dated October 27, 1965:
Mr. Bernard Chartier, came to my office October 23rd 1965 at approximately 4.00 p.m. His hair appeared blackish on the top and white, grey and black at both temples, and mostly black in the back of the head.
The question is therefore one of degree; according to the Hollands, the attacker's hair was greyer, or turning more grey, at the temples than appellant's at the time of the Coroner's inquest. Then, Wilmot rather strangely told the Coroner that appellant's hair was darker at that time than at the time of his interrogation in September. Turgeon J.A. said:
[TRANSLATION] ... It was established by the detectives that appellant's hair was darker than at the time of his interrogation in September. It may have been the effect of the light, but this is not shown by the record. One thing is clear, according to an expert opinion given a little later, appellant definitely had greying hair at the time of the inquest.
The explanation suggested by Turgeon J.A. is not supported by the evidence; it was not accepted by the trial judge; it must be rejected.
[Page 521]
We only know, from an expert opinion prepared immediately after the holding of the Coroner's inquest, that appellant did not dye his hair. Accordingly, his hair was no darker at the end of October than at the beginning of September; hair may go white with time, but so far as I know white hair which used to be black cannot return to its original colour. There is no question that Wilmot made a mistake in stating that appellant's hair was not as grey at the time of the Coroner's inquest than at the time of his interrogation. Wilmot's statement had no basis in fact: it rested on suspicions which lacked a proper factual foundation.
In saying that appellant's hair was not as grey as it had been earlier, Wilmot stated as a fact something which he knew or ought to have known was a mere possibility. His good faith in this regard is not important. When a police officer testifies, he must be careful, perhaps even more so than an ordinary witness so as not to represent as fact that which is only inference, suspicion or conjecture on his part. The officer who fails in this duty commits a fault.
In my opinion, therefore, Wilmot committed a fault when he stated that appellant's hair was not as grey at the end of October as it was at the beginning of September.
Is there a causal connection between this fault and the damage claimed by appellant?
It is well known that a fault does not necessarily give rise to liability: there must be a connection of cause and effect between the fault and the damage; [TRANSLATION] "The damage suffered must be the consequence of the fault committed" (Mazeaud and Mazeaud, Traité théorique et pratique de la responsabilité civile délictuelle et contractuelle, 6th ed., t. 2, No. 1417, p. 516). For an event to be the cause of a damage, it is not sufficient that it merely contribute to the latter; there must be a closer connection; the event must have been the proximate cause of the damage, so that, if it had not occurred; there would not have been even a partial loss.
In the case at bar appellant seeks to obtain compensation for the damage that he undoubtedly
[Page 522]
suffered following the verdict and the charge. As noted, the fault complained of is the erroneous statement of Wilmot as to the colour of appellant's hair; the question is whether this fault was the effective cause of the verdict, so that without it the jury would in all probability have found appellant innocent (Martel v. Hôtel-Dieu St-Vallier[9], Pigeon J. at p. 749).
The lower courts did not rule on this question; they held that Wilmot's statement was not wrongful. We must therefore examine the evidence that was adduced before the jury in order to identify the facts or circumstances that can properly be said to have had a causal connection with the verdict.
Several factors had a direct causal connection with the verdict.
The first factor, and perhaps the most important of all, concerns the credibility of the appellant. As mentioned above, appellant asked to be heard as a witness at the inquest; he told the circumstances of his arrest and imprisonment; he gave a fourth version of how he had made use of his time on the day of the incident; in this fourth version, he contradicted the earlier versions and stated that he was still at the Golf Club when the attack took place. The jury saw and heard appellant; it was aware of the earlier versions he had given to the Police Force; it chose not to believe appellant. Turgeon J.A. observed: [TRANSLATION] "It must be borne in mind that at the Coroner's inquest he sought to change the written statement he had given the police when he was in custody. This undoubtedly affected his credibility with the jury".
Furthermore, without it being suggested by anything in the evidence, one juror suspected that the accused had consumed alcoholic beverages:
Q. The day of the accident, July 11th, do you remember if you took any alcoholic beverages?
A. I don't drink.
[Page 523]
The second factor which may have a direct causal connection with the verdict is appellant's resemblance to the attacker.
If we consider the evidence without regard to Wilmot's testimony, we still come to the conclusion that appellant bore a strong resemblance to the attacker. Indeed, the resemblance was so striking that Holland himself, even before Wilmot's testimony, seemed to believe that appellant might have dyed his hair; he said:
I say he is an identical man and I will not commit myself until we know if he has grey hair;
(My emphasis.)
Mrs. Holland said:
I didn't give a definite identification because this happened three months ago; I did say that the man that I pointed out fitted the description, the build and everything of the man I saw that day.
Despite the difference in the colour of the hair, none of the witnesses stated that appellant was not the attacker; the only evidence is that there was a striking resemblance between appellant and the attacker.
This proof of a striking resemblance must of course be distinguished from that of a complete identification; nor is it the same as denying identity. A witness who says "The suspect closely resembles the attacker, but I am not sure it is him" is not saying the same thing as one who says "The suspect is not the attacker, although both have several points of resemblance". In the latter case the statement denies identity, it contradicts it; in the former case the evidence establishes a resemblance which if supported by other facts and circumstances, may lead to a conclusion that the suspect was the attacker.
The evidence in question here—always excepting Wilmot's statement—is in the latter category; it is proof of a resemblance, which does not prove identity but does not deny it either; it does not in itself lead to the identification of appellant, and consequently to a verdict of criminal negligence, but taken together with the other relevant circumstances,
[Page 524]
it does indeed become one of the "causes" of that result.
A third factor, which has a relationship of cause and effect with the verdict rendered against appellant, is the refusal of the Coroner to hear evidence of an alibi which would allegedly have cleared appellant.
In his written statement of September 2, appellant stated that he left the Golf Club between 5:00 and 5:30 p.m. on his way home, travelling by way of the intersection where the attack occurred. The police officers sought in vain to verify this statement with appellant's golfing companions; the information they were given was in general too vague to allow them to confirm or rebut appellant's written statement. Turgeon J.A. observed:
[TRANSLATION] It was impossible to establish the time appellant left the club, despite the inquiries made with his golfing companions.
Appellant's version at the Coroner's inquest was quite different. Turgeon J.A. summarized it as follows:
[TRANSLATION] Appellant testified at his own request and stated that the version he had given in writing and signed on September 2 was not correct. He stated that on the day of the attack he had played golf with Messrs. Geoghegan, Snyder and Côté and had left the Club with his wife at about 6:45 p.m.
Counsel for the appellant wanted to call five dr six witnesses to corroborate this latest version by appellant, according to which he was still at the Golf Club with his companions when the attack occurred. Counsel for the Crown submitted an objection; he noted:
[TRANSLATION] ... Well, I would not like the jury to accept at this stage a claim of an alibi, which does not exist because the witnesses were not heard and do not have to be heard here.
We are only required to consider and accept the testimony of persons who have come into the box to state facts here.
The Coroner refused to hear this proof of an alibi.
[Page 525]
The fourth and last causal factor is undoubtedly the summation of the evidence which the Coroner made for the jury in accordance with s. 41 of the Coroners' Act:
41. When the taking of evidence is completed, the coroner shall sum up such evidence and point out what seems to him the proper way of appreciating it.
To all intents and purposes the Coroner did not take appellant's testimony into account in his summation; he manifestly had no faith in it.
When the Coroner related the testimony of Holland—[TRANSLATION] "an absolutely disinterested witness"—he stated that appellant's car was parked near the victim's when the attack occurred. Referring to Holland, he said:
[TRANSLATION] He, when he was sitting with his wife in the living room of a house opposite the one where the two cars were parked, those of the victim and of Mr. Chartier, he heard the sound of voices.
(My emphasis.)
This statement by the Coroner, in which he identifies one of the two cars as being that of appellant, resulted from an erroneous appraisal of the evidence, but it nonetheless had an appreciable influence on the jury's decision.
With reference to the identification of appellant, the Coroner gave quite an accurate summation of the testimony of Mr. and Mrs. Holland. He emphasized the fact that the attacker had more greying hair than Chartier's and mentioned, without comment, the statement by Wilmot which we are now considering as to its causal effect.
Finally, the Coroner came to appellant's testimony, and he limited himself to pointing out the contradictions between his various versions. Referring to the written statement on September 2, he said:
[TRANSLATION] He maintained that they made ... I won't say threats, but that he was perhaps pushed rather hard, and so on.
After mentioning appellant's earlier statements, he concluded:
[Page 526]
[TRANSLATION] He gave details on September 2 which are not the same today; today he claims his memory is better. So, gentlemen, I do not need to go on; you are in control of the facts of the case.
It is not surprising that the jury chose not to believe appellant and returned a verdict of criminal negligence.
Taken as a whole, the four factors which we have just examined lead necessarily to the conclusion that appellant was Dumont's attacker. If (and there is no doubt on this point) appellant closely resembled Larivière, if his version of the facts had to be dismissed because he was not speaking the truth, if his car was located near Dumont's at the time of the attack, if there was no proof of an alibi, how could the jury reasonably return any other verdict than the one it did return? That was obviously the conclusion formed by the trial judge, since he said:
[TRANSLATION] ... MOreover, apart from this proof of identification, there was also circumstantial evidence which could reasonably be accepted.
Turgeon J.A. was of the same view; this emerges clearly from his reasons overall. If the four foregoing factors, excluding the erroneous statement by Wilmot, are more than sufficient to lead to a verdict unfavourable to appellant, it necessarily follows that that statement was not the proximate or effective cause of the verdict. It is quite possible that Wilmot's statement contributed to the injury sustained by appellant, but that is not sufficient; as de Juglart points out (Mazeaud and Mazeaud, Leçons de droit civil, t. 2, 5th ed., vol. 1, No. 566, p. 578), all the events that contribute to bringing about a damage are not its cause: the law requires "that the event played a decisive role in bringing about the injury, that it was the 'proximate cause'. Here, it was not Wilmot's statement which prompted HoIlands' testimony that there was a great resemblance between appellant and the attacker; which convinced the jury and the Coroner not to believe appellant's testimony; which led the Coroner to summarize the evidence as he did, and to say, inter alia, that appellant's car was alongside that of the victim at the time of
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the attack; or which prompted the Coroner to refuse to hear the proof of an alibi.
In my opinion it cannot be said that if Wilmot's statement had not been made, the verdict would, in all probability, have been different. Respondent therefore cannot be held liable on the basis of this statement.
It remains to determine the quantum of the damages to which appellant is entitled as a consequence of the unlawful arrest to which he was subjected.
There is no proof of actual loss. The arrest and imprisonment are not related to the subsequent termination of appellant's contract of employment. Moreover, the employer could terminate this contract at his discretion on three days' notice.
There was no proof of publicity in the media concerning the arrest and imprisonment. Nevertheless, this was an event that could not have remained a secret; appellant's friends, his work colleagues and his superiors had to know of it.
Appellant suffered a definite injury: he was unlawfully deprived of his freedom, he was wrongfully inconvenienced; his self-respect was damaged; for a time, his reputation became suspect in the minds of a small number of people. He is entitled to compensation for all of this, but the amount will of necessity have to be arbitrarily determined.
In his petition of right appellant himself set his damages at $20,000 [TRANSLATION] "for injury to his reputation, unlawful confinement in a common jail and loss of freedom".
In my opinion the sum of $10,000 is adequate compensation for the injury sustained by appellant as a consequence of his arrest and his unlawful confinement.
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I would therefore allow the appeal, reverse the decision of the Court of Appeal and the judgment of the Superior Court, and render judgment for appellant against respondent in the amount of $10,000, with interest at five per cent from January 24, 1966 and a further indemnity of three per cent per annum from January 1, 1972, and costs of an action of this class in all courts.
BEETZ J. (dissenting in part)—I agree with the conclusions of Mr. Justice Pratte.
Appeal allowed with costs, MARTLAND, DICKSON, BEETZ and PRATTE JJ. dissenting in part.
Solicitors for the appellant: Corriveau & Associés, Quebec.
Solicitors for the respondent: Pouliot, Déom & Guilbault, Montreal.