COURT OF APPEAL FOR ONTARIO
DATE: 20010925 DOCKET: C34623
OSBORNE A.C.J.O., LASKIN and ROSENBERG JJ.A.
B E T W E E N :
WILLIAM ALBERT COLLINS
Kirk F. Stevens,
for the appellant
Respondent
- and -
C. Justin Griffin,
for the respondent
BRANTFORD POLICE SERVICES
BOARD
Heard: February 26, 2001
Appellant
On appeal from the order of Regional Senior Justice Eugene B. Fedak dated March 2, 2000
ROSENBERG J.A.:
1This is one of two appeals heard by this court raising issues about the civil liability of the Brantford Police Services Board for conduct of police officers employed by the Board. The cases involve entirely different incidents but each turns on the allegedly illegal arrest of the respective plaintiffs. The reasons in the other case, Hudson v. Brantford Police Services Board are being released concurrently with these reasons. This case concerns the proper interpretation of s. 495 of the Criminal Code, which governs the warrantless arrest of a person, and the protection against arbitrary detention under s. 9 of the Canadian Charter of Rights and Freedoms. The Deputy Judge of the Small Claims Court and the Divisional Court judge both found in favour of the plaintiff. For the reasons that follow I would allow the appeal.
THE FACTS
2Officers of the Brantford Police Services Board arrested the plaintiff, Mr. Collins, on two occasions. The trial judge awarded damages for both arrests and this judgment was affirmed on appeal to the Divisional Court. In the present appeal, the appellant Board only contests the findings with respect to the first arrest. I will therefore confine my review of the facts to the first incident.
3On August 4, 1997, Elsie Widdis was hanging out her laundry in her own backyard. Mrs. Widdis is a slight woman of 71 years of age. For no apparent reason, her neighbour, Mr. Collins, sprayed her with water from a hose. There is a history of difficulties between Mr. Collins and his neighbours. The trial judge charitably describes Mr. Collins as lacking “the social skills to maintain diplomatic relationships with his neighbours”. As a result of the hose incident, Mrs. Widdis called to her neighbour Mr. Martino and he came over. Mr. Collins began to yell derogatory remarks at Mr. Martino. Mrs. Widdis telephoned the police and Constable Sawkins was dispatched. Mrs. Widdis described the incident to Constable Sawkins. Mrs. Widdis testified that because of this incident and other conduct by Mr. Collins she feared for her safety and she therefore spent the night at her son’s home.
4Constable Sawkins went to the area of Mrs. Widdis’ residence sometime after 4:30 p.m. He had some familiarity with the problems the neighbours were experiencing with Mr. Collins. He had personally attended to complaints by Mr. Collins about Mrs. Widdis on two occasions and he had discussed the problems with other members of the police service. Constable Sawkins spoke to Mr. Martino and to Mrs. Widdis. Mrs. Widdis was upset because verbal abuse from Mr. Collins had now turned to violence. Constable Sawkins also spoke to Provincial Constable Homeniuk who lived on the street, was aware of the problems caused by Mr. Collins, and had had some personal dealings with him. P.C. Homeniuk advised Constable Sawkins to have another officer with him before dealing with Mr. Collins.
5Constable Sawkins decided to arrest Mr. Collins for assault. He testified that he intended to make the arrest without a warrant, and would only get a warrant if he was refused entry to the Collins home to effect the arrest [1] . After another constable arrived, they went to Mr. Collins’ home and knocked on the front door. Mr. Collins motioned the officers to come in. He began to tell his side of the story but Constable Sawkins cut him off, saying that he would have an opportunity to do so later. The officer advised Mr. Collins that he was under arrest and advised him of his right to counsel. Mr. Collins became agitated but he eventually did go with the officers. The arrest took place about three hours after the water spraying incident.
6The officers took Mr. Collins to the police station where he entered into a recognizance before the officer in charge. The recognizance required him to refrain from having contact with his neighbours. He was released about two hours after the arrest. He was subsequently convicted of assault.
THE CLAIM
7The plaintiff launched his claim on August 31, 1998, over one year after the arrest. He claimed damages for the common law tort of unlawful arrest and for breach of his right to protection against arbitrary detention under s. 9 of the Canadian Charter of Rights and Freedoms. In its defence, the Board relied in part on the six-month limitation period in s. 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38. The Board concedes that s. 7 is only a bar to the common law action and does not affect the claim based on breach of the Charter.
THE REASONS OF THE TRIAL JUDGE
8In his reasons, the trial judge did not distinguish between the two causes of action. He appears to have found that the arrest was unlawful because the conditions in s. 495(2) of the Criminal Code were not met. However, respectfully, the reasons are not entirely clear and I intend only to refer to his factual findings at this point. I will return to his legal findings later. In the early part of his reasons, the trial judge found the following facts:
I find that the inter-neighbour tension was too high, and quite long standing.
Considering all the evidence as to the neighbourhood situation and the history of the tension in the Grand St. neighbourhood where the events and the arrests took place, I cannot conclude that the arrests were necessary to prevent the continuation or repetition of the offences or the commission of another offence.
Disgruntled, grating, social invalid bully that the plaintiff was, I am not prepared to find that:
b.) Officer Sawkins felt in August of ‘97 that arrest for a hybrid offence without a warrant was justified.
9Later in his reasons the trial judge also made these, somewhat inconsistent, findings:
With regard to the August ‘97 arrest, I find that I cannot place myself in the position of Officer Sawkins as to where this neighbourhood difficulty might lead, but I can find that the offenses charged were not indictable, and that arrest cannot be made to fit under section 495(2) of the Criminal Code.
Evidence was led in an effort to establish that the fact that Mrs. Widdis had decided to go away from her home for “the weekend” created a cushion as to the timing of any continuation of the offence. The evidence was not compelling. The police officer did not have or provide the particularity to use that factor in their planning. I find Mrs. Widdis’ absence did not impact on “the plan”.
So what were the Brantford Police officers doing? The fact is I find they attempted to do good community police work. They made a full examination of the facts, they thought about a neighbourhood and its problems and its safety. They dealt with individuals who were aging and perhaps turning inward in their dealing with their neighbours as individuals.
THE REASONS OF THE DIVISIONAL COURT
10Fedak R.S.J. held that the plaintiff’s claim was based on the Charter and therefore s. 7 of the Public Authorities Protection Act did not bar the action. He interpreted the trial judge’s reasons as finding that the arrest was not necessary to prevent the continuation or repetition of an offence or the commission of another offence and that “under the circumstances, the arrest could not be made to fit under s. 495(2) of the Criminal Code”. He therefore held that the case had to be decided on the basis of whether the trial judge had made a palpable and overriding error that affected his assessment of the facts. He could find no such error and dismissed the appeal.
ANALYSIS
11This appeal turns, in part, on the interpretation of s. 495 of the Criminal Code. That, however, is not the only issue. In view of s. 7 of the Public Authorities Protection Act, even if the arrest was unlawful, the plaintiff could only succeed if he also established that he was arbitrarily detained contrary to s. 9 of the Charter. While the Divisional Court judge, unlike the trial judge, recognized that the claim depended upon the Charter, he did not deal separately with the s. 9 issue. He seems to have accepted that if the arrest was unlawful because the officer did not comply with s. 495(2) of the Criminal Code it was also an arbitrary detention. This was an error of law. This court made that point in R. v. Duguay, Murphy and Sevigny (1985), 1985 112 (ON CA), 18 C.C.C. (3d) 289 at 296 where MacKinnon A.C.J.O. held that, “It cannot be that every unlawful arrest necessarily falls within the words ‘arbitrarily detained’.” I will return to that issue after considering s. 495.
12Section 495 of the Criminal Code gives a police officer a power to arrest without a warrant but imposes certain limits on that power. The section provides, in part, as follows:
- (1) 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;
(2) A peace officer shall not arrest a person without warrant for
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). [Emphasis added.]
13Assault is a hybrid offence, that is an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction within the meaning of s. 495(2)(b). Accordingly, the limitation on the arrest power in that section applied. The respondent submits that, in fact, Constable Sawkins had no power of arrest at all under s. 495(1) because assault is not an indictable offence. This argument appears to be based upon the decision of the New Brunswick Court of Appeal in R. v. Dobrotic, 1997 9564 (NB CA), [1997] N.B.J. No. 488 and seems to have found favour with the trial judge. In my view, the respondent and the trial judge have misapprehended the effect of Dobrotic. In any event, this argument is foreclosed by the decision in R. v. Cayer (1988), 1988 9879 (ON CA), 28 O.A.C. 105 at 113 (C.A.). In Cayer, this court held that former s. 450(1) [now s. 495(1)] confers a power to arrest without warrant a person who, on reasonable and probable grounds, the officer believes has committed an indictable offence. A hybrid offence like assault in this case, or impaired driving in Cayer, is an indictable offence “notwithstanding that the Crown may elect to prosecute either by indictment or by way of summary conviction”. The court relied upon its earlier decision in Re Abarca and the Queen (1980), 1980 2958 (ON CA), 57 C.C.C. (2d) 410, which in turn had relied upon the holding in Dallman v. The King, 1942 52 (SCC), [1942] S.C.R. 339, where the Supreme Court of Canada made it clear that an offence that could be prosecuted either on indictment or on summary conviction was an indictable offence as it could be prosecuted by indictment.
14The real question in this case turned on the limitation on the arrest power in s. 495(2). I point out, however, that by virtue of s. 495(3), the burden of proving that the arrest was unlawful because of non-compliance with s. 495(2) was on the plaintiff. Thus, in the words of s. 495(2), it was for the plaintiff to establish that Constable Sawkins believed on reasonable grounds that the public interest, having regard to all the circumstances, could be satisfied without arresting him. The trial judge and the Divisional Court judge both appeared to consider that this issue was determined by the finding that the arrest was not necessary to prevent the continuation or repetition of the offence or the commission of another offence within the meaning of s. 495(2)(d)(iii). In my view, they were in error. The decision not to make a warrantless arrest for a hybrid offence must be made in the public interest having regard to all of the circumstances. The factors enumerated in s. 495(2)(d) are only some, albeit the most important, of the factors to which the officer’s attention is expressly directed. The overriding consideration remains the public interest. In my view, the plaintiff did not meet his onus of establishing that the public interest could have been satisfied without an arrest.
15As I have said, neither the trial judge nor the Divisional Court judge dealt with this issue. Constable Sawkins was not asked whether he believed the arrest was in the public interest, although it is a fair inference from his testimony that he believed it was necessary in the public interest given the tension in the neighbourhood and the need to place some controls on the plaintiff’s contacts with his neighbours.
16However, even if the plaintiff did establish that the arrest was unlawful because of s. 495(2), he failed to show that the arrest was arbitrary within the meaning of s. 9 of the Charter. Section 9 reads as follows:
- Everyone has the right not to be arbitrarily detained or imprisoned.
17In Duguay at p. 296, this court held as follows:
It cannot be that every unlawful arrest necessarily falls within the words "arbitrarily detained". The grounds upon which an arrest was made may fall "just short" of constituting reasonable and probable cause. The person making the arrest may honestly, though mistakenly, believe that reasonable and probable grounds for the arrest exist and there may be some basis for that belief. In those circumstances the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary. On the other hand, the entire absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could have genuinely believed that such grounds existed. In such cases, the conclusion would be that the person arrested was arbitrarily detained. Between these two ends of the spectrum, shading from white to gray to black, the issue of whether an accused was arbitrarily detained will depend, basically, on two considerations: first, the particular facts of the case, and secondly, the view taken by the court with respect to the extent of the departure from the standard of reasonable and probable grounds and the honesty of the belief and basis for the belief in the existence of reasonable and probable grounds on the part of the person making the arrest. [Emphasis added.]
18In Cayer at p. 115, this court held that a detention would be arbitrary for the purpose of s. 495 if it is “capricious, despotic or unjustifiable”. This is simply not an apt description of Constable Sawkins’ conduct. There is no question that he had reasonable and probable grounds to believe that the plaintiff had committed an indictable offence. He had interviewed the victim and two other persons. He was aware that verbal abuse from the plaintiff had escalated, albeit marginally, to assault. The elderly victim was afraid. Constable Sawkins and other members of his department were aware of the continuing problems caused by the plaintiff in the neighbourhood. The arrest itself was conducted properly, courteously, and with attention to the plaintiff’s age and medical condition. He was held in custody for a short time. I repeat the finding by the trial judge:
So what were the Brantford Police officers doing? The fact is I find they attempted to do good community police work. They made a full examination of the facts, they thought about a neighbourhood and its problems and its safety. They dealt with individuals who were aging and perhaps turning inward in their dealing with their neighbours as individuals.
19That is hardly a description of capricious, despotic or unjustifiable conduct. The trial judge and the Divisional Court judge erred in law in failing to consider whether the arrest, even if unlawful, amounted to an arbitrary detention. Accordingly, the finding of liability cannot stand.
20The trial judge held that the plaintiff had suffered damages in the amount of $6,000 as a result of the two unlawful arrests. As I have said, the appellant no longer contests the finding of liability with respect to the second arrest. The trial judge did not expressly attribute an amount to each arrest. He did, however, refer with approval to another case in the Small Claims Court where the judge awarded $3,000 in similar circumstances. Rather than remit the matter of damages to the trial court I would reduce the amount of the damages to $3,000.
DISPOSITION
21Accordingly, I would allow the appeal and vary the judgment to reduce the amount payable by the appellant from $6,000 to $3,000. The appellant is entitled to its costs in this court. I would not interfere with the costs order in the trial court or the Divisional Court.
(signed) M. Rosenberg J.A..”
(signed) “I agree C. A. Osborne A.C.J.O.”
(signed) “I agree John Laskin J.A.”
RELEASED: September 25, 2001
1Unlike Hudson v. Brantford Police Services Board, this case does not involve application of the holding in R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 concerning the legality of warrantless arrest of a person in a dwelling house. The arrest in this case took place while the effect of the Feeney decision was stayed. See 1997 343 (SCC), [1997] 2 S.C.R. 117 and 1997 301 (SCC), [1997] 3 S.C.R. 1008.
