This is a rougher draft then the one i handed in today there maybe spelling grammer mistakes etc.
SUPERIOR COURT OF JUSTICE
b e t w e e n:
TORONTO POLICE SERVICES BOARD,
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,
and CONSTABLE BINDO SHOWAN
NOTICE OF CLAIM
TO THE DEFENDANT HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
A CLAIM IS TO BE MADE AGAINST YOU by the Plaintiff. Take Notice that a claim as outlined below will be made against you in the Superior Court of Justice (Toronto). This Notice is provided pursuant to s. 7(1) of the Proceedings Against The Crown Act, R.S.O. 1990, C. p.27.
TO: Her Majesty the Queen in Right of Ontario
Crown Law Office – Civil
720 Bay Street
Toronto ON M7A 2S9
1. THE PLAINTIFF CLAIMS:
(a) General damages in the amount of $2,000,000.00 for false arrest, false imprisonment, assault and battery, malicious prosecution, misfeasance in public office, negligence, and for breaches of section 2, 7, 8, 9, 10(b) and 12 rights as guaranteed by the Charter of Rights and Freedoms (the “Charter”), and for other Charter violations described below;
(b) Aggravated and special damages in the amount of $1,000,000.00 for these same torts and Charter violations;
(c) Punitive and exemplary damages in the amount of $1,000,000.00;
(d) Declarations that the Defendants and their agents violated the Charter of Rights and Freedoms;
(e) Pre-judgment and post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;
(f) Costs in this action on a substantial indemnity basis; and
(g) Such further and other relief as to this Honourable Court may deem just.
2. The Plaintiff, Julian Ichim, is a 32 year old male residing in Toronto, Ontario. The Plaintiff is an outspoken community activist.
3. The Defendant Toronto Police Services Board was at all material times the employer of all police officers in the Toronto Police Service (TPS), and is vicariously liable for the wrongful acts and omissions of the TPS officers pursuant to s. 50(1) of the Police Services Act, RSP 1990, C. p.15.
4. The Ontario Provincial Police (the “OPP”) is the police force for Ontario pursuant of the provincial Police Services Act, R.S.O. 1990, C. p.27. The provincial Crown is liable, pursuant to the Proceedings Against the Crown Act, supra, for the wrongful or negligent acts and omissions of the OPP’s members, employees, and agents, including members of other police forces operating under the jurisdiction, supervision, or command of the OPP or its members.
5. The Ministry of Community Safety and Correctional Services is the ministry of the Provincial Crown in Ontario which maintains provincial custodial facilities including Maplehurst Correctional Complex (“MCC”) in Milton, Ontario. The provincial Crown is liable pursuant to the Proceedings Against the Crown Act, supra, for the wrongful or negligent acts and omissions of employees and agents of the Ministry of Community Safety and Correctional Services.
6. Pursuant to s. 9 of the Proceedings Against the Crown Act, the Defendant Her Majesty the Queen in right of Ontario is a the party to be named in proceedings taken against the provincial Crown.
7. The Defendant Constable Bindo Showan (“Showan”) was at all material times employed as a police officer with the Ontario Provincial Police.
CAUSE OF ACTION
8. The Defendant Showan was an undercover police operative from approximately March 27, 2009 up until summit of the Group of Twenty countries in Toronto on June 26 and 27, 2010 (“the G20 Summit”). He was directed to infiltrate and gather intelligence (“the Infiltration”) on groups who police thought would disrupt Vancouver Olympic events in February, 2010, or G8 meetings in Huntsville, Ontario in June, 2010. Showan went by the name “Khalid Mohammed” and began the Infiltration in Guelph, Ontario.
9. On December 7, 2009, the Government of Canada announced that it would be hosting a summit of leaders of the Group of Twenty countries (the “G20”) in Toronto (the “G20 Summit”).
10. Showan was one of at least 12 undercover police officers across Canada who infiltrated activist communities in the lead up to the 2010 Vancouver Olympics and the G20 Summit
11. From March 2009 to September 2009 the Plaintiff resided at 42 Wellington Street in the City of Stratford, Ontario. Thereafter, the Plaintiff then lived in Inuvik in the North West Territories, until sometime in February 2010, at which time the Plaintiff moved and lived at 362 Yorkshire Street in the City of Guelph, Ontario. The Plaintiff spent a significant amount of time at his family home in Kitchener-Waterloo, Ontario. The Plaintiff frequently traveled to and organized with people in Stratford, Kitchener,-Waterloo, Guelph, and Toronto, Ontario.
12. From June 2009 until June 2010, Showan integrated himself into the Plaintiff’s life and the anti-poverty movement that he was part of. Showan infiltrated groups that the Plaintiff belonged to including Stratford Action for Equality (SAFE), and Guelph Sense of Security (SOS). These groups were similar in that their goals were the eradication of poverty, free food programs, harm reduction, and literacy programs.
13. Showan infiltrated other groups that the Plaintiff did not belong to including Guelph Land Is More Important Than Sprawl (LIMITS), and Anti War @ Laurier (AW@L), and the Southern Ontario Anarchist Resistance (SOAR).
14. On June 6, 2009 the Defendant Showan met the Plaintiff at the Hamilton Anarchist Book Fair at Westdale High School in Hamilton, Ontario. Showan represented himself to the Plaintiff as “Khaled Mohammed” and described himself as a radical Kenyan activist with Marxist political leanings.
15. Showan befriended the Plaintiff under false pretences and through deception.
16. After this initial meeting, Showan went to great lengths to deceive and manipulate the Plaintiff in order to gain his trust and achieve police objectives. Showan and numerous other police officers invested significant police resources into a systematic and strategic plan to surveille and investigate the Plaintiff.
17. On September 17, 2009, Showan sought impress the Plaintiff by pretending to unlawfully transfer and sell nine cartons of cigarettes. Showan picked up the Plaintiff in Kitchener. Showan misled the Plaintiff and did not tell the Plaintiff where they were going. Showan took the Plaintiff to Milton, Ontario where Showan received a large amount of cash from an undercover police officer. Showan took the Plaintiff to Brantford, Ontario where Showan received nine cartons of cigarettes from a different undercover police officer. Showan returned the cigarettes to the first undercover officer in Milton and kept $900.
18. Showan developed good rapport with the Plaintiff by driving him places, buying him alcohol, food, and other items, and often inquiring about the Plaintiff’s health.
19. Showan pretended to be very nice to the Plaintiff’s mother, Florica Ichim, and he sometimes drove her to doctors’ appointmens. Showan privately consoled the Plaintiff and offered emotional support. Secretly, Showan took advantage of the Plaintiff’s duress and emotional upset.
20. The Plaintiff believed “Khalid Mohamed” to be a good friend.
21. On some Tuesdays in July 2009 and August 2009, Showan drove activists, including the Plaintiff, from Kitchener to Stratford in his van and would buy them pizza and alcohol. Showan would routinely encourage people to drink when they refused and he would also insist that they continue drinking.
22. During the Infiltration, Showan routinely purchased alcohol for many different people, and encouraged drinking after various protests and meetings. Showan had parties at a residence in Guelph where he supplied activists with free alcohol. Showan provided alcohol to persons who were not of age. Showan, himself, used alcohol while on duty and in the company of people he was surveilling. Showan drove his van while intoxicated and while under the influence of alcohol and thereby endangered the Plaintiff and the public.
23. The Defendant Showan attempted to manipulate the Plaintiff into making decisions that were objectively not in the interests of the Plaintiff, and instead were in the interests of police.
24. In September 2009, Ichim planned on moving to Inuvik in the North West Territories to work with at-risk Native youth. Showan expressed dissatisfaction with the Plaintiff’s decision. Showan said he would be alienated from activist groups and activities because he was a person of colour, he was a minority, and others did not know him or trust him. If the Plaintiff left, Showan would not be able to continue the activism he maintained. The Plaintiff did move to Inuvik temporarily, from sometime in September 2009 to February 2010.
25. During The Infiltration, Showan routinely encouraged actions against the Olympics and G8/G20 in Stratford, Kitchener, Guelph, and Toronto.
26. When Ichim returned from Inuvik in February 2010, Showan insisted that the Plaintiff get involved in G20 protest organizing.
27. On April 21, 2010 and May 1, 2010, T (“D”), who was an undercover police agent, attended meetings of Sense of Security (SOS) in Guelph, Ontario. D insisted that SOS and Ichim specifically organize a protest in the week leading up to the G20 Summit. At the time, it was understood that a coalition of activists were planning a week of events to take place prior to the G20 Summit. The events were to raise issues such as economic justice, environmental justice, and indigenous sovereignty.
28. From February 16, 2010 until May 2010, Showan exerted pressure on Ichim to attend meetings of the Southern Ontario Anarchist Resistance (SOAR) organizing meetings in Toronto for the G20, which the Plaintiff did not attend. The Plaintiff did not attend because he was commitments were to programs that assisted with in Guelph, including free food programs, drug counselling programs, and harm reduction programs.
29. D and Showan repeatedly stated that they were disappointed that the Plaintiff was not taking a more leading role in G20 organizing and tried to encourage him to take a more leading role. The Plaintiff instead emphasized the importance of local, grassroots community programs.
30. The Plaintiff did ultimately assist in organizing a protest that took place prior to the G20 Summit on June 21, 2010.
31. Showan promoted violence and criminal activity to community activists who he met in the course of his undercover operations. For example, on multiple occasions Showan advocated sabotaging machinery to disturb the economy and stop development of wetlands near the Hanlon Creek. Between July 27, 2009 and August 14, 2009, when a group of activists staged a 19 day sit-in of the Hanlon Creek development, Showan was ostracized and told to leave the protest because he was advocating violence and sabotage
32. Showan acted with malice, improper purpose, and outside his lawful authority when he encouraged people to commit criminal offenses.
33. During The Infiltration Showan entered the Plaintiff’s principle place of residence in Guelph at 362 Yorkshire Street without warrant. Showan entered the Plaintiff’s long time family residence in Kitchener at 126 Madison Avenue without warrant. Showan entered the Plaintiff’s residence in Stratford at 42 Wellington Street without a warrant. Showan attended Florica Ichim.
34. Showan investigated and survielled the Plaintiff beyond what was reasonable necessary to achieve the purposes of the Infiltration. Showan breached the Plaintiff’s right to privacy. Showan violated the Plaintiff’s right to be free from unreasonable search and seizure, contrary to s.8 of the Charter. The Plaintiff did not give his consent to be searched at any time and he did not waive his right to privacy.
35. “The Defendant Showan breached the Plaintiff’s right to privacy.
36. Khalid Mohammed” was unknown to most people and he attempted to use the Plaintiff to develop credibility within the activist community.
37. The activist community did eventually discover that Showan was an undercover police officer which caused damage to the Plaintiff’s credibility in that community. Activists that relied on the Plaintiff’s judgment no longer trusted him. This affected the Plaintiff’s ability to organize community events and obtain gainful employment in the activist community.
38. On the morning of June 26, 2010, Ichim and his then fiancée were in Toronto, Ontario and walked into the Tim Horton’s restaurant located at 111 Carlton Street.
39. By this time, Showan had been survielling the Plaintiff more than one year. Showan new a great deal of information about the Plaintiff and his plans G20 Summit. Showan knew that the Plaintiff did not plan to commit any criminal offense at the G20 Summit. Showan knew that the Plaintiff had not conspired with others to commit any criminal offense at the G20 Summit.
40. The Plainitiff was suddenly and without warning apprehended by a group of plain-clothes Toronto Police Service officers.
41. The officers directed the Plaintiff to go with them and proceeded to grab the Plaintiff by the arms pulling him outside. The Plaintiff did not resist and went with the officers.
42. The officers forced the Plaintiff into unmarked van parked in front of the restaurant. The vehicle contained even more TPS officers. Inside the police vehicle, TPS officers repeatedly struck the Plaintiff in the back using punches, knees, and elbow strikes over a period of 10 to 15 minutes.
43. TPS officers used excessive force during the arrest of the Plaintiff. TPS officers assaulted and battered the Plaintiff. TPS officers violated the Plaintiff rights to liberty and security in violation of s. 7 of the Charter.
44. During Ichim’s arrest, the police officers did not inform the Plaintiff of his right to remain silent and his right to counsel, contrary to s. 10(b) of the Charter.
45. The Plaintiff was charged with Conspiracy to Commit and Indictable Offense contrary to s. 465(1)(c) of the Criminal Code.
46. It was alleged that the Plaintiff conspired with 17 other individuals to do property damage and obstruct police at the G20 Summit. Many of these individuals were arrested at approximately the same time as the Plaintiff in a coordinated and premeditated police plan that involved OPP officers including Showan, as well as TPS officers.
47. S. 495 of the Criminal Code of Canada R.S.C., 1985, c. C-46 (the “Criminal Code”) states that a peace officer may arrest without warrant:
a. a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; or
b. a person whom he finds committing a criminal offence…
48. In the circumstances, there were no reasonable grounds to believe that the Plaintiff had or was about to commit an indictable offence. The Plaintiff was not found committing a criminal offence. There were no grounds to arrest the Plaintiff under s. 495(1) of the Criminal Code.
49. The Plaintiff was falsely arrested and imprisoned by TPS officers.
50. The arrest of the Plaintiff was unlawful, arbitrarily, and contrary to ss. 7 and 9 of the Charter.
51. TPS arrested the Plaintiff on the basis of information provided to them by OPP officers including Showan. Some of the information shared with the TPS was false and misleading. The Plaintiff was arrested and charged on the basis of this false or misleading information. Officers with the OPP caused the Plaintiff to be arrested.
52. Showan and other OPP officers knowingly shared false and misleading information with the TPS in order to have the Plaintiff arrested.
53. Showan and other OPP officers knew that the Plaintiff did not take part in a conspiracy to commit an indictable offence. Showan and OPP officers knew that there were not reasonable grounds to arrest the Plaintiff. Still, OPP officers including Showan caused TPS officers to arrest of the Plaintiff.
54. One or more OPP officers ordered or caused the arrest of the Plaintiff when they knew there were no lawful grounds for arrest. OPP officers including Showan knowingly breached the law, abused their authority, and were misfeasant in public office.
55. The Plaintiff was not arrested for a lawful purpose. The Plaintiff was arrested for the purpose of preventing him from exercising his right to freedom of expression. The purpose of arresting the Plaintiff was to interfere with his community activism. The arrest of the Plaintiff was a violation of s. 2 of the Charter.
56. Showan and OPP officers were grossly negligent when they shared false and misleading information about the Plaintiff.
57. The Plaintiff was arrested for an improper purpose and was thereafter maliciously prosecuted.
58. Showan and other OPP officers were negligent during the course of their investigation of the Plaintiff when they shared false and misleading information about the Plaintiff.
59. Showan and other OPP officers acted in bad faith and with ill intent.
60. The Plaintiff was taken to a temporary detention centre. The Eastern Avenue Detention Centre (“EDC”) located at 629 Eastern Avenue, Toronto, Ontario, was specifically created for G20 Summit related prisoner processing.
61. At the detention centre the Plaintiff was denied access to counsel contrary to s. 10(b) of the Charter. The Plaintiff was denied access to reasonable medical treatment. The Plaintiff was denied reasonable access to the necessities of life including water and food.
62. TPS officers were negligent in their management and treatment of prisoners, including the Plaintiff, at the EDC.
63. The Plaintiff was subjected to cruel and unusual treatment at the EDC, contrary to s. 12 of the Charter.
64. At the EDC the Plaintiff was unlawfully strip searched, contrary to s. 8 of the Charter.
65. The Plaintiff was taken before a court some time on Saturday, June 26, 2012, and he was adjourned into custody without a bail hearing. The Plaintiff was taken to Maplehurst Correctional Complex (MCC) where he was held for two nights.
66. At the MCC the Plaintiff was denied reasonable access to medical treatment. Staff, agents, and employees at the MCC failed in their duty to provide the Plaintiff with reasonable medical treatment. The Plaintiff was owed a duty of care in the circumstances. Staff, agents, and employees of MCC were negligent.
67. The Plaintiff suffered injury and further deteriorating health as a result of the fale arrest and mistreatment while in custody at the EDC and the MCC.
68. The Plaintiff was strip searched when he entered MCC. The Plaintiff was not lawfully in custody at the time of the search and therefore the Plaintiff was unreasonably strip searched at MCC, contrary to s. 8 of the Charter.
69. The Plaintiff was brought to court and released on bail on Monday, June 28, 2012. Florica Ichim acted as a surety in order to gain the release her son. She had to attend and testify in court at 2201 Finch Avenue in Toronto. The Plaintiff spent approximately 55 hours days in custody.
70. The Plaintiff was put on very restrictive bail terms. The bail terms included a list of people that the Plaintiff could not associate with. The bail terms interfered with the Plaintiff’s right to freedom of expression, association and assembly.
71. The pending charges against the Plaintiff were a considerable source of stress in the Ichim family. Dealing with the pending charges caused the Plaintiff to suffer anxiety and emotional upset.
72. During the Infiltration Showan kept detailed notes and documented his interactions with hundreds of people. Showan made notes of many personal and intimately private conversations that he had with the Plaintiff. Showan made notes of details that were extraneous to his investigation. For example, Showan made notes of sexual experiences described by the Plaintiff and included in his notes comments made about the Plaintiff’s private health matters. After the G20 Summit, evidence gathered by Showan, including his notes, were disclosed to Crown counsel, as well as coaccused and their counsel.
73. It was reasonable foreseeable that many people would later read notes prepared by Showan during the course of the Infiltration. Showan made these notes with the intention of embarrassing and humiliating the Plaintiff. Showan acted with malice.
74. All charges were withdrawn against the Plaintiff at the request of the Crown.
75. The Plaintiff has suffered damages, including:
a) damages for loss of liberty and indignity;
b) damages for physical distress including injuries sustained during arrest and while in custody;
c) emotional and mental distress including, but not limited to, depression and anxiety;
d) damages for loss of reputation;
e) loss of income;
f) damages for the Plaintiff’s loss of time and routine of life;
g) aggravated damages for the insulting, high handed, malicious and oppressive conduct; and
h) punitive damages for the Defendants’ abuse of authority for a malicious purpose with wilful and/or grossly negligent disregard of the Plaintiff’s rights.
76. Plaintiff claims damages in respect of the unlawful conduct of members of the OPP and the TPS and the Defendant Showan.
77. The Plaintiff further claims damages pursuant to s. 24(1) of the Charter of Rights and Freedoms for the breach of their rights under sections 2, 7, 8, 9, 10(b), and 12 of the Charter.
78. The Plaintiff proposes that this action be tried at Toronto.
Dated: April 24, 2012
Denis Grigoras Law Office
Sebastian Denis Grigoras (54578B)
Barrister and Solicitor
103-275 Wharncliffe Road North
London, Ontario N6H 2C1
Lawyer for the Plaintiff, Julian Ichim