Police obtained arrest warrant 18 months after incident, but not executed until three years later
A Calgary woman has won the right to pursue her lawsuit against the Calgary Police Service (CPS) for negligent handling of her sexual assault complaint, on the grounds police failed to arrest the alleged perpetrator until more than four years after the incident, leading to a series of events that ended his prosecution.
“The principles protecting police investigative discretion from private law obligations to complainants do not preclude finding a duty of care in this case,” wrote Alberta Court of Queen’s Bench Justice Nicholas Devlin. “This is not a claim of negligent investigative in the normal sense. On the facts as pled, CPS sabotaged its own, judicially confirmed investigative outcome, in a straightforward but serious criminal case, through a baffling level of negligence.”
“What’s important about this case is the argument that this is a novel case,” that should have its day in court,” says Pawel Milczarek, the lawyer for the woman who launched the lawsuit. “The CPS tried to have the suit struck down on the basis that these kinds of arguments have been brought before courts before, and you can’t hold police negligent in context of the investigation. But the judge here decided this was a novel situation.”
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Milczarek says that similar prior cases usually deal with the police discretion to pursue an investigation or lay charges. But in this case, the distinguishing feature is that the police pursued the case, charged the alleged perpetrator, and then “for some unexplained reason” failed to follow up correctly so that the charges were ultimately dropped. “That is the negligence we are talking about here.”
The case dates back to May 2009, when the complainant, Teliesha Rennalls, called Calgary Police to report that she was sexually assaulted by the alleged perpetrator, Korku Tettey, at his northeast Calgary home. Her lawsuit alleges she had gone to his house after a party, fallen asleep, and then was awakened by him performing non-consensual intercourse. After the incident, Tettey told her not to go to the police, but she did.
Officers interviewed the complainant and transported her to a hospital where they arranged for a sexual assault examination to be conducted by a physician. The case then “fell into unexplained dormancy,” Devlin wrote in his decision.
Calgary Police obtained a warrant for Tettey’s arrest in December 2010, 18 months after the complaint. However, that warrant was not executed until another three years had passed. That is despite Tettey continuing to live at the address where the crime is said to have occurred.
Wrote Devlin: “During the intervening years, while the warrant was outstanding, CPS officers attended at Tettey’s home in response to an [unrelated] call for service but failed to arrest him.” He wasbrought before the court on this matter in January 2014, with a trial scheduled for provincial court in May 2015. That date was later adjourned until December 2015.
The complainant attended court on that December date and was told that a new trial date would be set sometime in February of 2016, as Tettey had re-elected to be tried in the Court of Queen’s Bench. She then heard nothing further from the Calgary Police or the Crown regarding the trial.
On January 20, 2017, the Crown stayed the charges against Tettey, citing Calgary Police's delay in advancing the case as the reason for ending the prosecution.
As a result, the complainant filed a statement of claim against the accused and the CPS for negligent handling of her sexual assault complaint. She claimed that police failed to arrest Tettey until years after the incident, despite determining reasonable and probable grounds to charge him. , police t, resulting in the prosecution's ultimate demise.
She also sued the CPS for assault and battery in respect of the sexual assault examination. This latter claim was based on the allegation that she was induced to undergo an intrusive medical procedure at the CPS’ behest when it had no real intention of acting on the results.
Defendant Tettey filed a statement of defence in response to the lawsuit, denying the sexual assault. The CPS defendants instead brought an application to strike on the basis that it discloses no cause of action.
Devlin wrote that when the case was brought before a chambers judge, the Master ruled that the facts of this case were “sufficiently novel to permit the claim to proceed to trial, notwithstanding that police generally do not owe a personal duty of care in tort to the victims of crime.” He considered the body of jurisprudence that has limited victims and their families' right to sue police for investigation-related negligence and concluded that it did not govern in the circumstances of this case, Devlin wrote.
Devlin wrote that the Master distinguished this line of authority on the basis that the claim “involved injuries which took place after the alleged crime. These included the invasive medical examination, and most importantly, that the claim did not involve negligence in the investigation but rather the failure to execute a warrant in a timely fashion.”
The Master ruled the claim was novel and should be permitted to proceed. The CPS then appealed that decision to the Court of Queen’s Bench, asking the court to strike the claim on the basis that it has no reasonable prospect of success. The Supreme Court of Canada has previously held that a court should be generous and err on the side of permitting a novel, but arguable, claim to proceed to trial.
The CPS “argues that the law bars suits for negligent investigation by victims or their families and that shades of nuance on the facts underlying the action are insufficient to make such a claim ‘novel’ or afford it a chance of success,” Devlin wrote. “The plaintiff counters that her claim is materially distinct from those in which no cause of action has been found because she is not complaining about negligence in any facet of the investigation.”
Instead, Devlin wrote, she claims the “evolving role of sexual assault complainants in the criminal justice system, make her claim novel and not obviously bound to fail.”
He also wrote: “The court must therefore consider whether the police ought reasonably to have foreseen that failing to execute the warrant would harm Rennalls, as the complainant in the case they were neglecting, and examine the broader nature of the relationship between a sexual assault complainant and the police.”