I changed that ! to ? That’s it.
Excerpts of Republished citation follows// emphasis added
| Citation: | Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII), <http://canlii.ca/t/h4tf7>, retrieved on 2017-07-31 |
The Issues
[7] The issues to be determined are:
- Was the arrest of Roxanne Carr lawful under either the provincial Trespass to Property Act or the Criminal Code of Canada?
- Did any of the officers use excessive force when dealing with Roxanne Carr?
- Were any of the officers negligent in carrying out their investigation of the events of the afternoon of August 23, 2008?
- Were Roxanne Carr’s rights pursuant to sections 7, 8, or 9 the Charter of Rights and Freedoms breached as a result of the conduct of one or more of the defendants?
- Was the Ottawa Police Services Board negligent because it failed to provide its officers with reasonable training, supervision, and oversight?
- To what damages, if any, is Roxanne Carr entitled under the following headings:
- a) General damages;
- b) Loss of income, loss of competitive advantage, or loss of earning capacity;
- c) Out-of-pocket expenses and future care expenses;
- d) Breach of Charter rights; and
- e) Punitive damages.
Background
[8] In the spring of 2008, Roxanne began to share a townhouse rented by her former boyfriend, Devon Morgan. They shared the home as roommates, each paying $500 per month in rent.
[9] Roxanne planned to move out of the home a few days prior to the end of August 2008. She told Morgan of her intention to do so.
[10] On the afternoon of August 23, 2008, Roxanne’s friend, Shawn Lavigne, visited with Roxanne at the townhome. Lavigne arrived in the early afternoon. The two spent a couple of hours conversing, seated on the front steps of the home. Roxanne believed Morgan was in Montreal that day.
[11] The afternoon was disrupted when two police officers, Constables Adlard and Cybulski, arrived at the home. Adlard told Roxanne to go inside and ask Morgan to come outside. Roxanne complied with the request, despite having responded that Morgan was not home. To Roxanne’s surprise, Morgan was inside the home. Morgan went outside and spoke with the officers. Roxanne returned to sit on the steps with Lavigne.
[12] Following their conversation with Morgan, Adlard and Cybulski had the impression that they were dealing with a situation of “removal of an unwanted person”. They did not believe that the situation was one involving criminal activity.
[13] After speaking with Morgan, Adlard and Cybulski returned to the front of the home. Morgan followed them. Adlard told Roxanne that she was required to leave the premises. Roxanne was taken aback by the request.
[14] Roxanne was unable to convince Adlard that she paid rent and was entitled to remain at the home. During her discussion with Adlard, Roxanne stood up from her seated position on the steps. Adlard believed that Roxanne was about to assault Morgan. There was no physical contact between Roxanne and Morgan. Adlard brought Roxanne to the ground and arrested her for assault. With Cybulski’s assistance, Adlard handcuffed Roxanne. The arrest occurred within eight minutes of the officers arriving at the home.
[15] The two officers took Roxanne to one of their cruisers and placed her in the back seat. Two other officers, Constables Virgin and Shaw, arrived at the scene.
[16] When in the first cruiser, Roxanne kicked the rear passenger and driver’s side windows out of the cruiser. The officers then placed Roxanne’s ankles in flex cuffs so as to restrain her leg movement. The officers carried Roxanne to the back seat of another cruiser parked nearby.
[17] When Roxanne was in the second cruiser, paramedics attended at the scene. Roxanne’s mother also attended at the scene, spoke with at least one of the officers, and spent time with Roxanne.
[18] Adlard drove Roxanne to the sally port area of the Ottawa police station. Constable Cybulski and Special Constable Morris, the latter a cell block officer, removed Roxanne from the cruiser. They dragged Roxanne into the cell block area and placed her on the ground face down so that a search could be conducted.
[19] Cybulski and Morris carried out the search. Throughout the search, Roxanne was handcuffed, with her ankles in the flex cuffs, and lying on the ground. Cell block officers Special Constable Marcil and Sergeant Desjourdy were present during the search but did not assist. After the search was completed, the flex cuffs were removed, Marcil applied a temporary restraining device (“TRD”) to keep Roxanne’s arms tied together behind her back, and the handcuffs were removed. Marcil took Roxanne to a holding cell. He removed the TRD once Roxanne was inside the cell.
[20] Sometime later, one of the cell block officers called an alert with respect to an incident in Roxanne’s cell. The alert was that Roxanne was trying to strangle herself with her own clothing (her top). In response to the alert, at least four officers went to the cell. Some of the officers removed Roxanne’s clothing. Morris, who was one of the officers to attend at the cell, gave Roxanne a suicide suit to wear.
[21] Shortly after receiving the suicide suit, Roxanne threw it out of the cell. Roxanne remained naked in the cell for between 2.25 and 3 hours before she was provided with a second, larger-sized suicide suit. During that time, an officer passed by Roxanne’s cell every half hour as part of a regular cell check. In addition, Roxanne’s cell could be seen on the monitors of the closed-circuit cameras.
[22] Shortly after midnight, Detective West attended in the hallway outside Roxanne’s cell. He outlined the charges being laid, the evidence he relied upon, and why the charges were being laid. He did not attempt to obtain from Roxanne her version of the events of the day. Roxanne was later allowed to leave her cell, retrieve her clothing and personal items, and leave the building. She took a taxi to her mother’s home.
[23] Roxanne seeks compensation for physical injuries suffered at the time of arrest and in the course of being searched and taken to a holding cell. She also seeks compensation for psychological injury suffered in the form of post-traumatic stress disorder, anxiety, and insomnia. Roxanne’s claim includes damages for economic losses on the basis that because of the psychological injuries suffered she has been and shall remain unable to return to gainful employment.
[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.
[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.
▪ Roxanne was, at a Minimum, a Licensee and Entitled to Remain
[43] In limited circumstances, a police officer may rely on the Code as authority to arrest a person without a warrant. Those circumstances are set out in section 495 of the Code.
[44] Did Adlard have authority, pursuant to section 495, to make an arrest without a warrant for the offence of assault on the afternoon of August 23, 2008? I conclude he did not:
• An indictable offence had not been committed (s. 495(1)(a));
• Reasonable grounds did not exist for Adlard to believe that Roxanne was about to commit an indictable offence (s. 495(1)(a));
• Adlard did not find Roxanne committing a criminal offence (s. 495(1)(b)); and
• Reasonable grounds did not exist for Adlard to believe that an arrest without a warrant was required to establish identity, secure or preserve evidence, prevent the continuation or repetition of an offence, or prevent the commission of another offence and that unless an arrest was carried out Roxanne would fail to attend in court (ss. 495(2)(c),(d),(e)).
[64] I find that there was neither a subjective nor an objective basis upon which to conclude that there were reasonable and probable grounds to arrest Roxanne for assault. With respect to section 495 of the Code, I find that the reasonable grounds required to support an arrest without a warrant did not exist.
c) Summary
[65] Adlard and Cybulski did not have authority to arrest Roxanne without a warrant under either the TPA or the Code.
[66] Roxanne’s claim against the officers is based on the tort of false arrest and false imprisonment. The former is a “tort resulting from the intentional and total confinement of a person against his or her will and without lawful justification” (Collis v. Toronto Police Services Board (2007), 2007 CanLII 36634 (ON SCDC), 228 O.A.C. 333 (Div. Ct.), at para. 28). I find that Roxanne has established the liability of Adlard for the tort of false arrest.
[67] The tort of unlawful imprisonment “flows from the total deprivation of a person’s liberty” (Ibid). Roxanne has established that, when she was placed in handcuffs, she was totally deprived of her liberty. I find that Adlard is responsible for Roxanne being placed in handcuffs. The arrest and subsequent handcuffing were the first in a series of events that led to Roxanne being falsely imprisoned.
[68] Cybulski’s role in the events at the home were that of a second officer on the call. For the reasons discussed below (under Issue No. 3), I find that the decision to arrest and to apply handcuffs was not hers. Cybulski assisted Adlard only when she saw that Roxanne was resisting arrest. I find that Cybulski is not liable for either false arrest or false imprisonment.
[72] For the officers to successfully rely on section 25, they must satisfy a three-part test (Wilson v. Durham Regional Police, 2011 ONSC 3419 (CanLII), at para. 68; the “Wilson test”). They must establish on a balance of probabilities that they:
- a) Were required or authorized by law to carry out the actions undertaken in their administration and enforcement of the law;
- b) Acted on reasonable grounds in carrying out the actions; and
- c) Did not use unnecessary force.
[73] For the purpose of applying section 25 of the Code to the events of August 23, 2008, I have divided the incidents into three periods: (i) the arrest at the home; (ii) at the cruisers; and (iii) at the police station.
- b) Arrest at the Home
▪ Adlard’s Actions
[74] I have already found that Adlard did not have authority to arrest Roxanne without a warrant. As a result, Adlard is unable to satisfy the part one of the Wilson test. If, however, I am wrong, and the arrest was lawful, then it is necessary to consider the parts two and three of the test.
[75] I have also already found that Adlard did not have reasonable and probable grounds to arrest Roxanne for either an offence under the TPA or for assault pursuant to the Code. Adlard is therefore unable to satisfy part two of the test.
[76] Part three of the Wilson test requires consideration of the degree of force used. It is undisputed that upon standing from a seated position, Roxanne was taken to the ground and handcuffed by Adlard. The evidence is contradictory as to whether Roxanne was brought down by Adlard from behind or otherwise; whether, once Roxanne was on the ground, Adlard applied pressure to her shoulder using his knee and, at times, pressure to her face using his boot; and whether after handcuffing Roxanne, and with pressure still applied to her face, Adlard told Roxanne to get up or he would break her wrist.
[77] I find that there is no evidence to support a belief on Adlard’s part that he or anyone “under his protection” (i.e. Morgan), was at risk of death or grievous bodily harm. Adlard testified that the only portion of the discussion with Morgan to which he gave credence was Morgan’s request that Roxanne be removed from the premises that afternoon. Adlard disregarded Morgan’s alleged concerns for his physical safety.
[78] Roxanne testified that during the arrest (a) Adlard was holding her wrist so tight that she was in significant pain, and (b) at least one bone in her wrist was fractured.
[79] By the time Roxanne stood up from her seated position, she had demonstrated a level of agitation that was palpable. I find, however, that her level of agitation did not warrant the use of force to the degree used by Adlard when arresting Roxanne. Adlard is therefore unable to establish on a balance of probabilities that the degree of force used was necessary. He is unable to satisfy the third part of the Wilson test.
[80] In summary, I find that the force used by Adlard at the time of Roxanne’s arrest was excessive; it was not proportional, necessary, or reasonable.
Issue No. 3 – Were any of the individual defendants negligent in the manner in which they carried out their investigation of the events of the afternoon of August 23, 2008?
- a) The Standard of Care
[106] The standard of care required of a police officer carrying out an investigation is that of “a reasonable police officer in all the circumstances”. The situation may include urgency; there may be deficiencies of information; and neither perfection, nor even the optimum, when judged from hindsight, is required (see Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at paras. 68, 73).
[107] An investigation has a number of stages. The conduct of a reasonable police officer may vary depending on (a) the stage of the investigation in which he or she is involved, and (b) the legal considerations (495793 Ontario Ltd. v. Barclay, 2016 ONCA 656 (CanLII), 2006 ONCA 656, 132 O.R. (3d) 241, at para. 48).
[108] Roxanne relied on the decision of the trial judge in Barclay. That decision was overturned by the Court of Appeal in September 2016, a number of months after closing argument in the matter before me. The Court of Appeal concluded that the trial judge erred because she determined the applicable standard of care without the benefit of expert evidence related to the particular type of investigation carried out by the police.
[109] When is expert evidence as to the standard of care required in cases of professional negligence?
- b) Expert Evidence as to the Standard of Care
[110] As identified by the Court of Appeal in Barclay, “[t]he general rule is that the standard of care of a professional, such as a police officer, will require expert evidence” (at para. 53). There are, however, two exceptions to the general rule.
[111] The first is for “nontechnical matters within the knowledge and experience of the ordinary person” (Barclay, at para. 57). The second is when the impugned conduct of the defendant is so egregious that it is obvious that their conduct has fallen below the standard of care. In that circumstance, it is not necessary for the trier of fact to know with precision the parameters of the standard of care (see Krawchuk v. Scherbak, 2011 ONCA 352 (CanLII), 106 O.R. (3d) 508, at para. 135, leave to appeal to SCC refused, 34359 (December 8, 2011)).
[112] The investigation on August 23, 2008 had a number of stages including (a) the investigation of the situation at the home, and (b) West’s review of the information received from the four officers who attended at the home and his decision to charge Roxanne with four offences. Did either stage of the investigation fall within one of the two exceptions to the general rule that expert evidence as to the standard of conduct of the officers, as professionals, is required?
▪ Investigation at the Home
[113] Roxanne alleges that Adlard and Cybulski were negligent in their investigation because they failed to recognize (a) Roxanne’s right to remain at her residence, (b) that there were no reasonable and probable grounds to arrest Roxanne, and (c) there was no evidence suggesting that Roxanne was involved in any criminal activity at the time of the arrest. I have already made findings that Adlard failed to recognize each of those three things. Was that failure negligent?
[114] Cybulski described the situation to which she and Adlard responded as “removal of an unwanted person”. Nothing that occurred prior to the arrest elevated the nature of the call to a technical or specialized one. The matter was nontechnical and within the knowledge and experience of an ordinary person.
[115] I find that the call to which Adlard responded falls within the first exception set out in Krawchuk. Therefore, expert evidence is not required in order to determine the standard of care required of Adlard and whether he was negligent in his investigation of the situation up until the time of arrest.
[116] The standard of care required of Adlard was that of “a reasonable police officer in all the circumstances.” (Hill, at para. 68). The reasonable police officer was Cybulski. Based on her evidence, I find that the standard of care is the measured approach she would have taken had the call been hers to manage. That approach included, if necessary, talking the situation out over a longer period of time than that taken by Adlard to speak with Roxanne and Morgan.
[117] I find that Adlard’s failure to take a measured approach and his decision to take a forceful, if not confrontational, approach are such that his conduct fell below the standard of care.
[118] For Roxanne’s claim against Adlard on the basis of negligent investigation to succeed, she must also establish a causal connection between the breach of the standard of care and the compensable damages suffered. The applicable test is the ‘but for’ test: “If, on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of [Adlard], then the causation requirement is met” (Hill, at para. 93).
[119] I find that as a result of Adlard’s negligence in handling the investigation, the situation escalated and ended with Roxanne’s arrest for assault. That arrest led to the series of events that transpired throughout the balance of the day on August 23 and into the early morning hours on August 24, 2008, when Roxanne was released from the Ottawa police station. I am satisfied that there is a causal connection between Adlard’s negligence in his investigation of the situation at the home and the compensatory damages suffered.
Issue No. 4 – Was the conduct of one or more of the defendants in breach of Roxanne Carr’s rights pursuant to section 7, 8, or 9 of the Charter?
[137] Roxanne asserts that her rights pursuant to one or more of three sections of the Charter were breached:
- The right to life, liberty and security of the person (section 7);
- The right to be secure against unreasonable search or seizure (section 8); and
- The right not to be arbitrarily detained or imprisoned (section 9).
- a) Section 7 – Right to life, liberty and security of the person
▪ Excessive Use of Force
[138] There is overlap between the claim based on use of excessive force and the claim based on a breach of Roxanne’s section 7 Charter rights. First, there is overlap in the evidence relevant to each of the claims. Second, a finding that excessive force was used may support a further finding that Roxanne’s rights pursuant to section 7 of the Charter were breached (see, for example, Nasogaluak, at para. 38.)
[141] I find that the excessive use of force as found above under Issue No. 2 amounts to a breach of Roxanne’s section 7 right to security of the person. I also find that the breach was not committed in accordance with any principle of fundamental justice.
▪ Left Naked in Cell for Over Two Hours
Basis for removal of clothing
[142] The Cell Check Report entry for 4:10 p.m. states that Roxanne “tried to tied [sic] shirt around neck.” When that observation was made, four officers went to Roxanne’s cell and conducted a search that ended in Roxanne’s clothes being removed. The officers were Marcil, Desjourdy, Morris, and Cybulski.
[143] There are inconsistencies in the evidence of each of the officers as to (a) who originally made the observation, (b) how the observation was communicated, (c) in what state Roxanne was found when the officers arrived at the holding cell, and (d) the specifics of what occurred in the cell.
[144] For example, Morris testified that Marcil alerted the others that Roxanne was attempting to tie herself with her clothing. Morris was unable to recall if Marcil was in front of the monitors when he gave that alert. Marcil denied giving the alert. Cybulski was uncertain as to who gave the alert. She testified that Desjourdy may have issued the alert that “someone’s hanging”.
[145] Marcil testified that he was the first officer to the cell. He had the keys to open the door to the cell. Marcil and Morris both testified that when they arrived at the cell Roxanne was standing at the back of it. The evidence of the officers varied from Roxanne having an item of clothing tied around her neck to Roxanne holding the article of clothing over her head. Morris was unsure whether the article of clothing was Roxanne’s top or pants. Marcil thought the article of clothing was Roxanne’s top.
[146] Marcil acknowledged that in his IAR he recorded that Roxanne attempted to tie herself to the cell door with an article of clothing. However, he was unable to say when he made that observation. He testified that he would not have been able to open the cell door if Roxanne had attempted to tie herself to the door with an article of clothing.
[147] Desjourdy acknowledged that none of the video footage for Roxanne’s holding cell shows an article of clothing tied around the bars of the cell door.
[148] The officers acknowledged that once the alert was issued they made their way quickly to Roxanne’s cell. The video footage shows Marcil running to the cell. Desjourdy described the officers as getting to the cell at a “fast pace”. None of the officers provided an explanation as to how it would have been possible for Roxanne to untie an article of clothing from the bars of the cell door and move to the back of the cell—all in the short time that it took the officers to get to the cell.
[149] Each of the officers recorded notes and/or prepared an IAR with respect to their involvement with Roxanne. One purpose served by officers’ notes and IARs is to assist officers in refreshing their memory when giving evidence in court. That they would seek to refresh their memory is not surprising, given the number of individuals with whom they deal over time in the cell block. Despite having prepared these documents and having the documents available to refresh their memory, the officers were inconsistent in their evidence regarding the event that led to the alert being called. They were also inconsistent in their evidence as to how Roxanne’s clothing was removed.
[150] Item D21 of the “OPS Cell Block Policy and Procedure” prescribes the level of monitoring required of a person who “is/may be suicidal”. Such an individual “shall be continuously monitored on video in a private cell and personally viewed at least every fifteen minutes.” The Officer in Charge is also mandated to continuously monitor suicidal prisoners (Item G10). There is no evidence that Roxanne was monitored in that manner. If the officers truly believed that Roxanne posed a danger to herself in that she was suicidal, they were required to monitor her more extensively than they did following the incident in the cell and the removal of her clothing.
[151] Roxanne denies that she at any time attempted to either tie an article of her clothing around her neck or to the door. The video footage of the search carried out when Roxanne arrived at the cell block area shows that she was entirely passive. In the video footage of Marcil leading Roxanne to her cell, she is compliant. By the time Roxanne was placed in her cell, she had suffered two broken bones in her wrist.
[152] Given (a) the inconsistencies in the evidence of the officers as to what gave rise to the alert being called, (b) the lack of adherence, following the removal of Roxanne’s clothing, to Item D21 of the “OPS Cell Block Policy and Procedure”, (c) Roxanne’s passive and compliant behaviour upon arrival at the police station, and (d) Roxanne’s denial that she attempted to tie an article of her clothing around her neck or the cell block door, I find that no event occurred that gave rise to reasonable grounds for the officers to remove Roxanne’s clothing.
[153] In summary, I find that the removal of Roxanne’s clothing was a breach of her section 7 right to security of the person. I also find that the breach of Roxanne’s section 7 right was not carried out in accordance with the principles of
Two hours without a suicide suit
[154] After Roxanne’s clothes were removed she was left naked in the holding cell for over two hours. The evidence of what occurred in that two-hour period includes the video footage, the Cell Check Report, the testimony of Morris and Desjourdy, and Roxanne’s evidence. Desjourdy was the officer in charge of the cell block that afternoon and evening.
- b) Section 8 – Right to be secure against unreasonable search or seizure
[160] For a search to be reasonable under section 8 of the Charter (a) it must be authorized by law, (b) the authorizing law must itself be reasonable, and (c) the search must be conducted in a reasonable manner (R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Cornell, 2010 SCC 31 (CanLII), [2010] 2 S.C.R. 142, at para. 16).
[161] Roxanne was the subject of a search upon arrival at the police station. That search was one of a series of events that followed what I have found to be an arrest made without authority. As a result, the search was not authorized by law and was a breach of Roxanne’s section 8 right to be secure against unreasonable search.
- c) Section 9 – Right not to be arbitrarily detained or imprisoned
[162] Roxanne asserts that she was arbitrarily detained when the police officers arrived at the home. I accept Roxanne’s evidence that she believed she was not free to leave the yard except as directed by Adlard. She did not attempt to enter the home except when told by Adlard to go inside and retrieve her personal belongings so that she could leave; the only time she moved was to do so. I find that Roxanne was detained prior to being arrested.
[163] Roxanne’s detention falls in the category of an investigative detention. In R. v. Mann, 2004 SCC 52 (CanLII), [2004] S.C.R. 59, at paras. 34 and 35, the Supreme Court of Canada established a number of guiding principles with respect to the power of the police to detain for investigative purposes.
[164] Based on Adlard’s evidence, he recognized that he was not investigating any recent or ongoing criminal offence. He was responding to a “dispute/disturbance” call. I find that he was carrying out his common law duty of preserving the peace (Mann, at para. 26.) I find that both subjectively and objectively Adlard’s decision to handle the situation as forcefully, if not confrontationally, as he did was neither reasonable nor necessary to fulfil his duty at the time.
[165] In summary, I find that Roxanne’s section 9 right not to be arbitrarily detained was breached.
[254] In summary, the defendants are liable to Roxanne as follows:
- Constable Adlard (false arrest, false imprisonment, excessive use of force, and negligent investigation), Special Constable Marcil (excessive use of force), and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for the following damages:
- a) General damages in the amount of $90,000.00;
- b) Damages for loss of earning capacity in the amount of $120,000.00; and
- c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of $37,226.84.
- Constable Cybulski, Special Constables Morris and Marcil, Sergeant Desjourdy, and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for damages in the amount of $7,500.00 pursuant to section 24(1) of the Charter of Rights and Freedoms.
[255] The balance of the claims against the defendants are dismissed.
Madam Justice Sylvia Corthorn
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