COURT OF APPEAL FOR ONTARIO
WEILER, MOLDAVER and LANG JJ.A.
B E T W E E N :
REVEREND BROTHER WALTER A. TUCKER and REVEREND BROTHER MICHAEL J. BALDASARO
Reverend Michael J. Baldasaro appearing in-person
Reverend Walter A. Tucker
appearing in-person
Appellants
Andrew K. Lokan
- and -
Amicus Curiae
THE CADILLAC FAIRVIEW CORPORATION LIMITED
Kenneth G. Crompton for the respondent
Respondent
Heard: July 4, 2005
On appeal from order of the Divisional Court (Justice Edward F. Then, Justice P. Theodore Matlow and Justice D. R. Aston) dated July 23, 2004.
BY THE COURT:
1On November 25, 2000, the appellants Reverend Baldasaro and Reverend Tucker were forcibly arrested for trespassing by security guards employed by the respondent Cadillac Fairview (“C.F.”). The primary issue on this appeal concerns the lawfulness of their arrest under s. 9 of the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”). Secondarily, the appellants challenge the trial judge’s order as to costs.
Findings at Trial
2Following their arrests, the appellants commenced an action against C.F. in which they sought damages for various wrongs, including false arrest and false imprisonment. The trial proceeded before Lofchik J. and a jury.
3At trial, based on the instructions provided by the trial judge, the jury found that the security guards employed by the respondent C.F. were lawfully entitled to arrest the appellants for trespassing. In the case of Reverend Baldasaro, the jury further found that the force used by the security guards in effecting his arrest was not unreasonable and that he suffered no physical injuries. Accordingly, the jury awarded no damages to him for pain and suffering. In the case of Reverend Tucker, the jury found that the force used by the security guards in effecting his arrest was more than reasonably necessary. The jury further found that Reverend Tucker suffered physical injuries from the arrest and they awarded him $15,000 in damages for pain and suffering.
4In response to a question designed to determine what damages (over and above damages for physical injury) the jury would have awarded had they found the arrest of the appellants to be unlawful, the jury assessed Reverend Baldasaro’s damages at $3,000 and Reverend Tucker’s damages at $2,000.
5With respect to costs, the trial judge gave two reasons for refusing to award costs to Reverend Tucker despite his success in the action. First, he found that Rule 76.13(3) of the Rules of Civil Procedure applied and that Reverend Tucker could therefore not recover any costs because he had not brought his action under the simplified procedure specified in Rule 76. Alternatively, the trial judge concluded that Reverend Tucker was not entitled to costs because he did not prove that he had “incurred any opportunity cost by foregoing remunerative activity in carrying on this litigation…”.
6With respect to Reverend Baldasaro, the trial judge ordered that he pay costs to C.F. in the amount of $20,500.
Brief Overview of Facts
7Because we have concluded that there must be a new trial in this matter, we propose to keep our review of the facts to a minimum.
8The appellants were permitted to pursue their appeal to the Divisional Court without the trial transcripts. On agreement of the parties, the trial transcripts were not provided to this court. The following overview comes from the trial judge’s charge to the jury which the respondent concedes we can rely on as accurately depicting the salient evidence.
9On November 25, 2000, during the 2000 federal election campaign, Marijuana Party Candidate for Hamilton-East, Reverend Baldasaro, and his colleague, Reverend Tucker, were in the Eastgate Square Shopping Centre in Hamilton. The mall is owned by the respondent C.F.
10According to information allegedly received by security guards employed by C.F., both men were handing out flyers and buttons for the political party without C.F.’s permission and were accordingly in breach of the rules governing such activity in the mall.
11Approximately two weeks earlier, Reverend Baldasaro had been in the mall and a security guard asked him to leave when he was observed to be collecting signatures in support of his candidacy. At that time, according to the security guard, he told Reverend Baldasaro that he would have to obtain the owner’s permission if he wished to engage in such activity. The appellant was not, however, given a trespass notice, nor did he continue to engage in the prohibited activity after being told to leave. Rather, he left the mall without further incident.
12Returning to the events of November 25th, at the time of their arrest, the appellants were standing outside of a book store located in the mall. They were approached by security guards who informed them that soliciting in the mall was forbidden and that they were trespassing. The guards further told them they were to leave the mall immediately, failing which they would be arrested. According to the security guards, the appellants refused to leave. Reverend Tucker is reported to have said “go ahead and arrest us because we’re not leaving”.
13The appellants disputed that evidence. They claimed that after they were approached and told to leave, they replied that they would leave as soon as Reverend Tucker had purchased a book from the book store. The appellants further testified that they told the guards that they would be willing to wait for a police officer to come if the guards wished.
14As it happened, a police officer was on the premises at the time. He testified that he would have responded to a call for assistance from the security guards had he received such a request, provided “there was someone there to look after the arrested party he was [already] dealing with” in the security office. The officer acknowledged that there were two other security people in the office at the time. Be that as it may, no such request for the police officer’s assistance was made and the appellants were forcibly arrested by the security guards and taken to the security office where they were turned over to the police officer. The officer later accompanied the appellants out of the mall, after having taken them to the book store where Reverend Tucker bought a book.
Liability
15The narrow issue on appeal is whether the forcible arrest of the appellants was lawful in the circumstances. In assessing the lawfulness of the appellants’ arrest, the jury was not instructed to consider whether, in all of the circumstances, forcible arrest was a reasonable course of action for the security guards to take in the first place. In other words, was a forcible arrest justified? Assuming that the jury should have been so instructed, it is common ground that the judgment under review cannot stand and a new trial must be ordered.
16The notion that such an instruction should have been provided to the jury derives from the decision of the Supreme Court of Canada in R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3. Unfortunately, that decision was not available to the trial judge at the time of trial. It was available to the Divisional Court, but in fairness, it is not at all clear that the “justification to arrest” issue was raised in that court.
17In Asante-Mensah, the Supreme Court of Canada considered the limits of the arrest power in s. 9 of the TPA and in particular, the right of citizens to use reasonable force in making an arrest that is otherwise lawful under that provision. Writing for a unanimous court, Binnie J. found that under s. 9, an occupier could use reasonable force both to institute the status of an arrest and to maintain it. In the context of discussing the level of force that would be considered reasonable, Binnie J. made the following observations at paras. 71 and 73 to 76 of his judgment:
71Many trespasses are of trivial importance. They are best handled by means short of an arrest. This was recognized in the 1987 Ontario Ministry of the Attorney General's paper This land is whose land?, supra, at pp. 14-15:
An arrest is a grave imposition on another person's liberty and should only be attempted if other options prove ineffective. Further, an arrest attempt may lead to a confrontation more serious than the initial offence of trespass, and should be exercised with caution. Excessive force or improper use of the arrest power, may leave the occupier, or a designated agent, open to both criminal charges and civil liability.
73A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances: Cluett v. The Queen, 1985 52 (SCC), [1985] 2 S.C.R. 216, at p. 222; R. v. Biron, 1975 13 (SCC), [1976] 2 S.C.R. 56, at p. 64 (Laskin C.J., dissenting); Besse v. Thom (1979), 1979 2791 (BC SC), 96 D.L.R. (3d) 657 (B.C. Co. Ct.), at p. 667, reversed on other grounds at (1979), 1979 633 (BC CA), 107 D.L.R. (3d) 694 (B.C.C.A.); R. v. Bottrell (1981), 1981 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), at p. 218. The same latitude will not necessarily be shown to an occupier who is under no duty to act and who instigates a confrontation with a trespasser.
74Further"reasonable force" in the context of the TPA may have to have regard not only to what force is necessary to accomplish the arrest, but also to whether a forcible arrest was in all the circumstances a reasonable course of action in the first place. I say this because determining whether "a defendant who claims to have been enforcing the criminal law is liable in tort necessarily involves taking into account what the criminal law states is or is not justifiable conduct" (emphasis added): G. H. L. Fridman, The Law of Torts in Canada (1989), vol. 1, at p. 70.
75Justification in the criminal law looks at a broader range of factors than simply the physical force required to restrain a person arrested: see, e.g., R. v. Simpson, (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), in which it was explained per Doherty J.A., at p. 499, that justifiability under s. 25 Cr. C. (and, by extension, s. 146 of the Provincial Offences Act)
depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.
76This dictum was approved and applied by this Court in Godoy, supra, at para. 18 [R. v. Godoy, [1991] 1 S.C.R. 311], and is quite consistent, it seems to me, with the advice mentioned earlier in the 1987 Ministry of the Attorney General's paper This land is whose land?, supra, that an arrest "should only be attempted if other options prove ineffective" (p. 14). It is also consistent with s. 495(2) Cr. C. which provides that a police officer shall not make an arrest (unless a warrant is obtained) with respect to summary conviction (and some other lesser) offences unless it is necessary to do so to establish the identity of the person arrested, to secure or preserve evidence of or relating to the offence, to prevent the continuation or repetition of the offence or the commission of another offence, or to secure the attendance in court of the person arrested. I mention this argument because, in a proper case, it might provide a further constraint in tort on any potential abuse of s. 9. The scope of justification in the context of a TPA arrest will have to await a proper case where an occupier who is sued in tort as a result of a TPA arrest is called upon to demonstrate that the arrest, as well as the force used to effect it, was reasonable in all the circumstances (emphasis added).
18We take these passages to mean that in assessing whether a forcible arrest for trespassing is lawful, the inquiry does not begin and end with an assessment of the degree of force used to effect and/or maintain the arrest; rather, it begins with the question whether the use of the arrest power was itself proper – that is, was it justified in the circumstances?
19Contrary to the submission of the respondent, we do not read Binnie J.’s reasons as leaving open the question whether “justification to arrest” is a factor that must be considered in assessing the lawfulness of a forcible arrest for trespassing. On the contrary, what Binnie J. left open was the “scope of justification in the context of a TPA arrest…”. That, he observed, was something that would “have to await a proper case where an occupier who is sued in tort as a result of a TPA arrest is called upon to demonstrate that the arrest, as well as the force used to effect it, was reasonable in all the circumstances”.
20Further support for our conclusion that “justification to arrest” is an integral component in assessing the lawfulness of an arrest is found in para. 78 of Binnie J.’s reasons, under the heading “Application to the Facts of this Case”. Notably, in assessing whether the trial judge was correct in concluding that the forcible arrest of Mr. Asante-Mensah for trespassing was lawful, Binnie J. commenced his analysis by pointing out that the “trial judge was under no doubt that arrest was a reasonable course of action on the facts of this case. All other attempts to secure the appellant’s compliance had failed…”. Binnie J. then went on to consider the second branch of the test, namely, whether the amount of force used was reasonable.
21In our view, there would have been no reason for Binnie J. to address the issue whether the arrest was a reasonable course of action had he not considered the “justification to arrest” component to be consequential in the lawful arrest analysis. Indeed, given the very real concern about the potential escalation of violence when ordinary citizens are given the right to use force in furtherance of their private interests, we consider the need for a “justification component” in the lawful arrest analysis to be particularly pressing. As Binnie J. noted at para. 76, “it might provide a further constraint in tort on any potential abuse of s. 9”.
22To the extent that Binnie J.’s remarks about “justification to arrest” may be said to be obiter given the narrow issue the court was called upon to decide, those comments are nonetheless binding on this court. See R. v. Miller (1982), 1982 1810 (ON CA), 39 O.R. (2d) 41 at p. 48 where Cory J.A. stated: “in Ontario it has always been understood that the obiter remarks of the majority of the Supreme Court of Canada constitute a considered opinion that should be followed by the courts of this province.”; see also Sellars v. The Queen, 1980 166 (SCC), [1980] 1 S.C.R. 527.
Application to the Case at Hand
23The facts in Asante-Mensah were extreme. It was clearly a case in which arrest was a reasonable course of action because all other attempts to secure Mr. Asante-Mensah’s compliance had failed (at para. 78). The same, however, cannot necessarily be said about the case at hand. In our view, justification to arrest is very much a live issue on the facts and circumstances of this case.
24In that regard, without in any way prejudging the matter, we think that in addition to the factors referred to in para. 75 of Asante-Mensah, the following non-exhaustive list of factors are relevant to the issue of justification:
What had the appellants done to cause the security guards to view them as trespassers? Were these activities the subject of a complaint?
Were the appellants acting in a disruptive manner either before their arrest or at the time of their arrest?
Had the appellants previously received a trespass notice? Had they previously been prosecuted for trespassing?
Is it likely that the appellants would have left the mall in a reasonable period of time had Reverend Tucker been given the opportunity to purchase the book that he wished to buy?
Once the appellants were apprehended by the guards, did they offer to wait for a police officer to attend?
Was it necessary to arrest the appellants to prevent them from continuing their prohibited conduct of soliciting?
Did the security guards know the identity of the appellants?
Was the arrest of the appellants necessary to preserve relevant evidence?
25These and other questions cannot be answered by this court, particularly in view of the state of the appeal record. We raise them simply to underscore our conclusion that the issue of justification to arrest is very much a live issue in this case and in our view, it should have been left to the jury. Unfortunately, through no fault of the trial judge, it was not. Accordingly, there must be a new trial.
Costs
26At the conclusion of the trial, the trial judge awarded no costs to Reverend Tucker and awarded costs against Reverend Baldasaro on a partial indemnity basis fixed in the amount of $20,500. As we are sending this matter back for a new trial, those costs awards are set aside.
27At any new trial, in assessing the applicability of Rule 76.13(3), the trial judge may consider with respect to the first trial, the reasonableness of these two unrepresented plaintiffs failing to use the simplified procedure under Rule 76 when that procedure was not drawn to their attention by an objection to the ordinary procedure in the respondent’s statement of defence or in any other manner before the argument on costs at the conclusion of trial.
28As well, the trial judge may consider that only one procedure was utilized in this case that would not have been available under the simplified procedure: examination for discovery of the plaintiffs by the defendant. This worked to the defendant’s advantage. Furthermore, the plaintiffs did not examine the defendant for discovery so that the plaintiffs’ use of the ordinary procedure did not, at least in this regard, add to the cost of the proceeding.
Conclusion
29In the result, the appeal is allowed, the judgment below is set aside and a new trial is ordered.
30As the appellants were successful on this appeal they are entitled to their costs of the appeal before this court and before the Divisional Court. We fix those costs in the total amount of $3000 – inclusive of GST and disbursements – for each appellant. The costs awarded on the first trial are set aside and left to the judge hearing the second trial.
RELEASED: (“M.J.M.”) July 12, 2005
“K. Weiler J.A.”
“M. Moldaver J.A.”
“S. Lang J.A.”
