Michael Oniel was arrested and charged with robbery in April, 1985. From the start, he protested his innocence. The investigating police officers, James Hughes and Mark Hegenauer relied on the positive identification of the alleged victim. It was the allegation of Frank Cantero that on April 8, 1985 Michael Oniel robbed him of a wrist watch and $40.00 in the Times Square Bookstore on Yonge Street in Toronto and, shortly thereafter, assaulted him in another Yonge Street establishment known as Cinema 2000. Mr. Cantero reported these incidents to the police two days later. On April 29, 1985, when Mr. Cantero saw Oniel in a record store, he found a police officer who arrested Oniel and took him to the police station where Sergeant Hughes and Constable Hegenauer, were asked to investigate the complaint. They interviewed Oniel and Mr. Cantero, who was also in the police station, and caused Oniel to be charged with robbery, of which he was ultimately acquitted. The two police officers conducted no further investigations before charging Oniel. From the time of his arrest, Oniel asked the police to interview two potential witnesses. The first was his hairdresser. Oniel said she would support his story that at the time of the alleged robbery his hair was long and not short as described by the complainant. The second was the employee of the store where the robbery was alleged to have occurred and to whom Mr. Cantero said he had complained at the time. Hughes and Hegenauer took no steps to conduct any further investigation.
Oniel was committed for trial on the basis of the complainant’s evidence after a preliminary inquiry. Thereafter, Oniel’s trial counsel, Mr. Copeland, wrote to the senior Crown Attorney and pointed out a number of significant inconsistencies in various versions of the alleged robbery that had been offered by the complainant. The senior Crown Attorney asked Hughes and Hegenauer to look into the matter. Hughes and Hegenauer appear to have made some inquiries but they did not report any details to the Crown Attorney. They simply asked that the prosecution be continued on the basis that the complainant continued to insist that Oniel was the perpetrator of the robbery. A senior police officer, Sergeant Mahoney, was asked to review the matter and he reported that the “proper procedure has been followed throughout and the case is properly prepared.”
Oniel was found not guilty by a jury and acquitted of the robbery charge in December, 1986. He commenced this action for malicious prosecution in May, 1987, alleging that Hughes and Hegenauer failed to conduct an adequate investigation and alleging that a fuller and unbiased investigation by them would have revealed his innocence. Hughes and Hegenauer served a jury notice. The matter proceeded to trial in April, 1993, and the action was dismissed.
In July, 1995 the Ontario Court of Appeal allowed an appeal from the judgment and directed a new trial. The appeal was allowed on the ground that the trial judge erred in failing to instruct the jury that Hughes and Hegenauer could be liable for malicious prosecution if the jury found that, even though they had reasonable grounds for charging Oniel, they had persisted with the prosecution after discovering that there was no basis for the prosecution. Before the second trial was held, Oniel moved to amend the statement of claim to include a claim for damages for breach of Charter rights.
The second trial took place in June, 1998. The trial judge left the issue of malicious prosecution with the jury and decided the issue of the alleged Charter breach on his own. Oniel, who was acting on his own behalf, but with the assistance of Professor Alan Young, also asked the trial judge to consider a claim for damages for negligent investigation. The trial judge accepted that there was an independent action in tort against the police for negligent investigation, but found that, as Oniel had not specifically pleaded that tort, it could not be considered.
Mr. Copeland’s testimony was central to Oniel’s case. He represented Oniel subsequent to his preliminary hearing and at his trial before Humphrey J. in December, 1986, where the jury took ten minutes to return a verdict of not guilty, no doubt vindicating Mr. Copeland’s opinion concerning the weakness of the case for the prosecution. He took over Oniel’s file from his previous lawyer in July, 1986, and investigated the circumstances surrounding the robbery charge against Oniel. He wrote a series of letters to Gerald Lapkin, who was at that time a senior assistant Crown Attorney who held a supervisory position in respect to prosecutions conducted at the Courthouse at 361 University Avenue. In letters written to Mr. Lapkin on November 11, 1986 and November 27, 1986, Mr. Copeland provided information which led him to believe Mr. Cantero had been untruthful and to reach the opinion that the prosecution should be discontinued.
In his letter of November 11, 1986, Mr. Copeland outlined a number of factors which, in his opinion, cast serious doubt on the credibility of Mr. Cantero, including his criminal record and two robbery allegations against other individuals which he had made in 1983. In particular, he referred to the information that he had obtained from an employee of the Times Square Bookstore that made it highly unlikely that a robbery had occurred in the store as alleged by Mr. Cantero. He advised Mr. Lapkin that the employee had also provided the information to Sergeant Hughes. The information to which Mr. Copeland referred was in the form of a statutory declaration given by the employee, Mr. Gallagher.
In his letter dated November 27, 1986, Mr. Copeland reviewed what he considered to be serious inconsistencies in the testimony which Mr. Cantero gave at the preliminary hearing when compared with the accounts of the alleged robbery which he had given to the police. He explained that although it was not his usual custom to make submissions about the merits of a prosecution “going ahead”, he outlined the reasons why he believed Oniel’s prosecution should not proceed. He also wrote: “To continue with the prosecution will make the police and the Crown part of a malicious prosecution instigated by Mr. Cantero.”
On November 27, 1986, Mr. Copeland delivered copies of his letters to Mr. Lapkin of November 11 and 27 to Sergeant Hughes. He told Sergeant Hughes that given the contents of the letters, it was his view “that to allow this prosecution to continue would be highly improper”. He asked Sergeant Hughes to contact the Crown Attorney “in order that a decision may be made concerning the prosecution”. Mr. Copeland testified that he had received a telephone call from Sergeant Hughes on November 28, 1986 in which he said that he was going to continue with the prosecution. The trial date was set for December 1, 1986, although the trial did not begin until December 15, 1986.
On November 27, 1986, Mr. Copeland also sent copies of his November 11 and 27 letters to Mr. Lapkin to Jack Marks, who was the Chief of Police at the time. In his covering letter to Chief Marks, he repeated what he had written to Sergeant Hughes concerning his exposure to a malicious prosecution action, and added: “My client has asked me to write to you in order that you will be aware of our concerns of the police handling of this matter and in an attempt to ensure that a proper decision is made on whether to proceed with the trial on December 1, 1986.”
Sergeant Hughes died before the trial. Consequently, Constable Hegenauer testified about the role he and Sergeant Hughes played in the investigation of the alleged robbery from the time of Oniel’s arrest on April 29, 1985, three weeks after the alleged robbery. His evidence was that Oniel had been identified on the street to two police officers as the man who had robbed Mr. Cantero three weeks earlier. They arrested Oniel and brought him to the police station where he was interviewed by Hughes and Hegenauer. Mr. Cantero was also at the station. Oniel gave a statement in which he vigorously denied any involvement with Mr. Cantero. Hughes and Hegenauer also interviewed Mr. Cantero. Constable Hegenauer testified that he formed the opinion that an offer had been made for a sexual favor and that something had gone wrong and that “perhaps Cantero refused to pay”. He testified that in charging Oniel he was influenced by a report in the police files that on October 31, 1982 Oniel had been involved in a “very, very similar occurrence” in a theatre. He testified that this report “certainly didn’t help Oniel’s credibility”. The trial judge admitted the report over Oniel’s objection, stating he would give the jury some form of limiting instruction concerning it.
Constable Hegenauer described the following incident that occurred during the investigation:
You’ve got a robbery that takes place. Twenty days afterwards, the victim points the suspect out to the two police so there is a great i.d. right there. During the investigation and while Mr. Oniel was at the station, Sergeant Hughes at one point takes Cantero who is now in another part of the office, actually in a waiting room, pulls him into the interview room and there is a face to face confrontation done with Hughes, Cantero and Oniel and Hughes is asking Cantero, ‘Is this the guy that robbed you’. Cantero says, ‘Yes, it is’.
Mr. Oniel, who did not have the assistance of counsel, conducted a lengthy cross-examination of Constable Hegenauer during which he testified that the statement that had been taken from Mr. Cantero had been lost and that he did not make any investigations at the book store. He said that even though he discovered that Mr. Cantero had a criminal record in his own name and under the alias of Lopez, which indicated that Mr. Cantero had lied to the police, he nevertheless believed Mr. Cantero and did not feel it was necessary to conduct an investigation at the book store, nor at Cinema 2000, at the time of the arrest. He admitted going to the book store at the instructions of the Crown Attorney, possibly in October, 1986, but could not remember if he carried out any investigation between April 29, 1985, when Oniel was charged, and January 11, 1986 when the preliminary hearing took place.
Constable Hegenauer acknowledged that he could have recommended to the Crown Attorney up to the date of Oniel’s trial that the prosecution be stopped. He further acknowledged that he and Sergeant Hughes had read and discussed the letters which Mr. Copeland had written to Mr. Lapkin, and that the letters did not change their views about the prosecution continuing.
As a result of Mr. Copeland’s letters, Mr. Lapkin requested that a report be prepared by the police in respect to the prosecution. It was prepared on December 1, 1986 by Sergeant James Mahoney and became an exhibit at the trial even though Sergeant Mahoney did not testify. In Sergeant Mahoney’s opinion there were no grounds on which Oniel could pursue a civil action against any police officers “for their involvement in this matter”. A review of the report discloses that it was not responsive to any of the issues raised by Mr. Copeland. During his cross-examination, Constable Hegenauer volunteered that he had read the report and that it formed one of the reasons why he and Sergeant Hughes did not recommend putting an end to the prosecution. He said that the report indicated “there was plenty of evidence and that we should continue on with the prosecution”.
In cross-examining Constable Hegenauer about the deficiencies in the report, Oniel succeeded in obtaining his concession that the report was silent about the theft of a watch, Mr. Cantero’s alias and the evidence of the employee of the book store which contradicted Mr. Cantero’s position that he had complained to him about the robbery. Counsel for Hughes and Hegenauer objected to the cross-examination on the ground that the report’s author was not “here”. The trial judge gave effect to the objection and precluded Oniel from asking any further questions concerning the report’s deficiencies. This was a very important avenue of cross-examination which should have been allowed to continue as its purpose was to illustrate that Hughes and Hegenauer, in failing to recommend putting an end to the prosecution, had relied on a report which failed to respond to any of the important evidentiary deficiencies raised by Mr. Copeland. This cross-examination had a direct bearing on Hughes and Hegenauer’s reasons for not recommending to the Crown Attorney the termination of the prosecution and, as such, went to the issue of malice.
Hughes and Hegenauer did interview Oniel’s hairdresser concnerning Oniel’s hair length. The hairdresser told them that she had cut Oniel’s hair as he claimed, but describing the length of his hair as “to the collar” rather than as “to the shoulder”, as asserted by Oniel. Hughes and Hegenauer believed that the discrepancy as to hair length refuted Oniel’s statement.
At the time of this trial, Gerald Lapkin was an Ontario Court Judge. He had no independent recollection of his involvement in Oniel’s prosecution. However, his recollection of the prosecution was revived somewhat by the correspondence and communication which had taken place with Mr. Copeland. He recalled that as a result of Mr. Copeland’s intervention, he had made it clear to Sergeant Hughes that he should carry out a further investigation, but he did not recall whether Sergeant Hughes had followed his instructions. Judge Lapkin acknowledged, based on a memo he had written to the file, that he had talked to Sergeant Hughes who said that he “will consult with [the] victim but feels [the] case should proceed if the victim so desires”. In answer to questions from the trial judge, Judge Lapkin testified that although it is for the Crown Attorney to make the final decision whether a prosecution will proceed to trial, he added:
It would be unrealistic to assume that the police don’t have a significant role to play in a prosecution in which they have done the full investigation and so forth.
He went on to say that in proceeding to trial, a Crown Attorney would consider the advice of the officer in charge of the prosecution as persuasive, or influential, but not as determinative.
Case Study Questions (16 marks)
Did Hughes and Hegenauer, have reasonable and probable cause for commencing the prosecution of the charge of robbery against Mr. Oniel. Outline the reasons for and against commencing the prosecution. (4 marks)
Did Hughes and Hegenauer, have reasonable and probable cause for continuing in the said prosecution. Outline the reasons for and against continuing the prosecution. (4 marks)
Were Hughes and Hegenauer, actuated by malice in relation to the commencement of the said charges. Outline the evidence to support your conclusion. (4 marks)
Were Hughes and Hegenauer, actuated by malice in relation to the continuing of the said charges. Outline the evidence to support your conclusion. (4 marks)
