Does he really have a case against the police?

Home & Garden Television , (HGTV) is a cable-television network operating in the United States and Canada. Its host, Anthony Sayers, a contractor, has given notice he intends to sue the Toronto Police Service for libel and slander after prosecutors withdrew all charges against the contractor.

Sayers said while he’s relieved the charges have been dropped, the last six weeks had been a nightmare. He said, “I had a lot of sleepless nights. I was depressed for a while and wondering where my life was going.” He added that for 17 years he had been building his business and name and now, both are damaged.

Co-host of the popular show, The Unsellables, Sayers, 41, was arrested in March 2011 and charged with extortion, attempted fraud under $5,000 and two counts of criminal harassment.

Two weeks later, the charge of extortion was dropped, and on April 26th, prosecutors dropped the remaining charges. “There was no reasonable prospect of conviction,” said Brendan Crawley, a spokesman for the attorney general’s ministry.

According to the police, the owner of a home in the Yonge Street-Summerhill Avenue area in Toronto hired Sayers’ general contracting company to finish work begun by another contractor.

After the first week, homeowner, Doreen Boulos was disappointed with the work and invited Sayers to the site. Police alleged Sayers and his client argued and that Boulos wanted to end the business relationship. In the following weeks, Boulos told the police that she was contacted “sometimes several times a day, and the communications were hostile” and escalating. Police spokeswoman, Wendy Drummond told the Star that Sayers said he did have a disagreement with Boulos about money he believed was owed for work done, but did not criminally harass her. He could call her once and if she refused to pay, he had the option to sue her. Calling her more than once could come under the heading of harassment. But then, it initially comes down to ‘she said, he said’.

The police arrested him and charged him with a number of offences that are contrary to the Criminal Code.

Now here is where the police made a terrible blunder.

On March 14th, the police issued a police news release that gave the particulars of Sayer’s arrest and the charges he was facing and then foolishly added, “police believe there may be more victims.”

Sayers’ libel lawyer, Brian Shiller, said the release was structured to make his client look guilty from the start. “He had an intact and excellent reputation as a contractor that the police sought to destroy with one sheet of paper they released to the media,” Shiller said, adding the story drew widespread attention.

Now the excuse of the police was that they wanted to learn if there were other homeowners who might have thought that they had been victims of Sayers. I can understand that procedure being undertaken when a sex offender is caught but it should never be used when the matter involving Sayers and the homeowner was more of a civil nature than a criminal one.

Imagine if you will, being a contractor and a former customer whose home you did the contracting work on suddenly reads that statement and decides that if he files a complaint with the police, maybe he will get some if not all of his money back.
Sayers’ criminal lawyer, Karen McArthur quite correctly surmised that her client was effectively sentenced before the investigation was undertaken. She added that in her opinion, the police did not conduct a proper investigation.

Sayers’ eight-page notice of claim also alleges police threatened to issue a news release if he did not cooperate in their investigation. And that when he cooperated, and was arrested the police issued a release anyway with the sole purpose of humiliating and embarrassing Sayers.

Because the matter was before the courts and Sayers was unable to travel outside Canada, a new contractor was cast for The Unsellables, “to maintain the original production schedule and avoid costly delays,” said Barbara Williams, senior vice president of content at Shaw Media.

Sayers also claimed that he also lost several of his clients.

Brian Rogers, a Toronto libel lawyer, said that police must believe they have reasonable and probable grounds for laying a charge. “I would think it would be very hard to sue the police in situations where the charges were in fact properly laid.”
Police spokesman Mark Pugash confirmed police have received the notice of intention to sue. “We will be preparing a statement of defence,” he said.

Keep in mind that the police must have proper grounds to lay a charge against a citizen and that means by having reasonable grounds to believe that a crime was committed by the accused.

Now just because the prosecutor’s office believes that there isn’t enough evidence to justify a trial of an accused doesn’t necessarily mean that a police officer was wrong in laying a charge.

The police have the discretion as to whom they wish to believe when they interview the complainant and the suspect. Unless the complainant is a recognized liar or is high on drugs or is highly intoxicated on alcohol, they can’t be faulted for making the wrong decision to charge the suspect with a crime.

That is why I don’t think he has a case against the police with respect to him not being permitted to enter the United States while facing the charges. The United States and Canada have had an agreement between them for many years in which they share information from their data bases with respect to arrests and convictions and the particulars of Sayer’s arrest would have automatically been picked up from the RCMP CIPIC data base and transferred to the FBI data base and from there to all the entry points at the border crossings between the United States and Canada.

However, if Sayer’s lawyer can prove that the police didn’t properly conduct their investigation of the complainant’s allegations, then he would certainly have a good case against the police. I don’t know enough about the case to form an opinion as to whether or not they did conduct a proper investigation so I can’t really comment on what his chances would be with respect to winning his case on those grounds alone.

However, he has a good chance of winning his case on the basis of libel. When the police publicly announced that they believed that there might be more victims, anyone reading that aspect of their statement could easily surmise that the police believed that he was a serial criminal and were simply encouraging more of his victims to contact them. By including the word, ‘believe’ in the statement, it put more emphasis on the validity of the police statement that it was their belief that Sayer committed other similar crimes.

He is also suing for slander but I don’t know what the grounds are for that claim. I can say that suing for slander is not always successful. When suing for libel, a plaintiff doesn’t have to prove that he has suffered damages. That is because damages are presumed to have occurred. But when suing for slander, then the plaintiff has to prove that he suffered to the extent that his reputation was damaged.

For example, if someone screams in the middle of the street and especially in front of your home that you are a child molester when in fact that is not true, you have to prove that as a result of that improper statement being made public in voice only, some or all of your neighbours and friends don’t want anything to do with you.

If you are a salesman and a former customer says to a potential buyer of the product you are attempting to sell that you are dishonest and it is established later that the allegation is false and the sale didn’t come through because the potential buyer believed the allegation he heard, then you can sue for the loss of the money you may have made from the sale.

However, if you are walking down the street and someone who doesn’t like you says to your wife who you are walking with that you are a rapist and that allegation is false and your wife doesn’t believe it, that you cannot claim for damages simply because you are upset.

Here is a good case to illustrate my point.

In 2005, a three-member Court of Appeal in Ontario heard the case of JOSEPH LEO ROMANO v. VINCENZO D’ONOFRIO and 1030692 ONTARIO LIMITED, carrying on business as the MINTURNO SOCIAL CLUB.

On November 2001 the Joseph Leo Romano was a third year law student at Osgoode Hall Law School and a member of the Minturo Social Club, an Italian club. On November 11, 2001 the club held its annual general meeting at a banquet hall where approximately 150 to 200 people attended. At this meeting the appellant rose to address an issue that had been raised when the president of the club, D’Onofrio, is alleged to have said into the microphone:

“You can’t speak, you’re not a member, you can’t speak, go sit down.”

Romano then returned to his seat and, as he did so, the president of the club D’Onofrio allegedly said:

“He is just a troublemaker and he only came here to cause trouble and confusion, like he always does. This young person is a liar. He tells lies to violently piss people off.”

After the defendants were sued, they filed a motion for summary judgment and one of the reasons why they asked that the plaintiff’s claim be dismissed was that the plaintiff led no evidence of special damages.

Under section 16 of the Libel and Slander Act, a plaintiff need not prove special damages if the words spoken are calculated to disparage the person in “any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication”.

The motion judge concluded that the section required the person to be a lawyer at the time. He found that that as a third year law student who would not be a member of the Law Society for another nineteen months, the appellant was neither engaged nor about to be engaged in the practice of law.

There was however evidence that as a result of this statement made at that event, the plaintiff withdrew from the Italian social club because of the embarrassing remarks made about him, and for this reason, he was unable to capitalize on his community affiliations in establishing his legal practice. The wrongful allegation caused him to suffer from both social and financial hardship.

Further, there was evidence of mental suffering that the plaintiff suffered from. In other words, that, the court concluded that the man who made the disparaging remarks did so with malice aforethought with the intention of getting the plaintiff out of his hair and forcing him to leave the social club permanently without being able to prove that what he said about the plaintiff was actually true.

The court ruled in favour of the plaintiff.

In the Sayer case, he must show that a reasonable person sitting on a jury would honestly believe that the police when making the public statement that they believed that there were other victims of Sayer without any proof that there was and for this reason he would lose business. He should have no difficulty in proving that aspect of his claim because the defamation was in writing and therefore was libel.

As I said earlier, I don’t know what was said by the police that was considered slanderous but if what the said in the presence of others was untrue, I don’t think Sayers will have difficulty in proving that the statement was done with malice aforethought and if that was the motive of the police, and he lost business as a result of the defamatory remark that was slanderous, he will be successful in claiming damages from the police officer who made the oral statement and from the Toronto Police Service.

Years ago when I was practicing law, a client told me that when he was arrested, he was asked by an abusive police investigator in the presence of another police officer as where he was at a certain time during the evening the so-called offence took place. He replied, “I was at your mom’s house screwing her.” The cop threatened to sue him for making the slanderous remark; the slander being that his mother would actually have sex with the man.

Needless to say, such a case would not go far in court since the remark made by my client, although most inappropriate, was also so unbelievable that no one in his right mind would believe it. Needless to say, the cop didn’t sue my client.