Euteneier v. Lee et al. [Indexed as: Euteneier v. Lee]
77 O.R. (3d) 621
[2005] O.J. No. 3896
Docket: C41681
Court of Appeal for Ontario,
Laskin, Cronk and Gillese JJ.A.
September 19, 2005
Charter of Rights and Freedoms -- Remedies -- Civil action -- Police removing plaintiff's clothing after she tried to hang herself with her brassiere in holding cell -- Plaintiff handcuffed to bars when she evaded monitoring by video camera -- Plaintiff bringing action against police officers for damages for negligence, assault, conspiracy and breaches of her rights under ss. 7 and 12 of Charter -- Trial judge dismissing action -- Divisional Court erring in allowing plaintiff's appeal on basis that trial judge failed to consider and adjudicate upon plaintiff's claim that defendants were obliged to take steps to maintain her dignity and prevent her humiliation -- Plaintiff not pleading that defendants owed her duty to maintain her dignity and to prevent her humiliation -- Divisional Court erring in treating those allegations as stand-alone causes of action -- No free-standing right to dignity and privacy existing under Charter -- Trial judge properly interpreting duties owed to plaintiff in light of her privacy and dignity interests -- Canadian Charter of Rights and Freedoms, ss. 7, 12.
While in detention in a holding cell in a police lockup facility following a lawful arrest, the plaintiff tried to hang herself from her cell bars using her brassiere. Her clothes were removed forcibly by two female police officers acting on the instructions of a senior officer. The plaintiff stood in a corner of the cell, from which she could not be monitored by videocamera. When offered her clothes back several times, she did not reply. She was told that if she did not move out of the corner, she would be handcuffed to the bars in view of the video camera to permit her surveillance. She did not respond. She was handcuffed to the cell doors. About 20 minutes later, blankets were taped to the outside of the cell bars. During the intervening period, she was visible to anyone who passed the cell. An hour later, she accepted the return of her clothes and the handcuffs were removed.
The plaintiff subsequently brought an action against various police officers who were involved in her arrest and detention, seeking damages for negligence, assault, civil conspiracy and breach of her rights under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. The action was dismissed. Based on the plaintiff's own actions and the applicable police policies and practices for the treatment of prisoners who attempt suicide, the trial judge held that the conduct of the police was reasonable and prudent; the police neither breached any duty owed to the plaintiff nor exhibited any bad faith or malice towards her, and there was no denial of fundamental justice. The Divisional Court allowed the plaintiff's appeal in part, holding that the trial judge made a palpable and overriding error by failing to consider the plaintiff's claims that, in confining her to the holding cell while she was unclothed, and handcuffing her to the bars, the police were "under a duty to take steps to maintain [the plaintiff's] dignity and to prevent her humiliation". The court held that the trial judge failed to determine whether any such duty existed or was breached and whether such breach, if any, entitled the plaintiff to damages or remedial compensation under s. 24(1) of the Charter. A new trial was ordered on that issue. The defendants appealed. The plaintiff cross-appealed, arguing that the Divisional Court erred by failing to order a new trial on the entirety of her claims. [page622]
Held, the appeal should be allowed; the cross-appeal should be dismissed.
The Divisional Court erred by concluding that the trial judge failed to consider and adjudicate upon "a significant part" of the plaintiff's claims, namely, her assertions that the defendants were obliged to take steps to maintain her dignity and to prevent her humiliation after she was disrobed. The record and the reasons of the trial judge, read as a whole, did not support a reasoned belief that the trial judge forgot, ignored or misconceived the evidence regarding the plaintiff's interests in maintaining her dignity and privacy while she was in custody or her assertions that the defendants failed to discharge duties owed to her to maintain her dignity and privacy interests. The plaintiff did not plead that the defendants owed duties to her to maintain her dignity and prevent her humiliation. Rather, as framed in her pleading, her allegations concerning her dignity and privacy interests were either particulars of the causes of action asserted against the defendants or descriptions of the consequences that she claimed flowed from the wrongful acts of the police. The Divisional Court erred in treating those allegations as stand- alone causes of action which required specific adjudication at trial. The trial judge recognized that the plaintiff sought relief for breaches of rights under ss. 7 and 12 of the Charter. His finding that the defendants exhibited no malice or bad faith towards the plaintiff was expressly linked to the plaintiff's Charter claims and to the particulars of the Charter breaches that she pleaded. He was alive to the plaintiff's interests in having her dignity and privacy protected while she was in custody. There is no free-standing right to dignity or privacy under the Charter or at common law, although the common law must be interpreted in light of Charter values when a constitutional challenge is brought to government action. The trial judge, having identified the duties owed by the police under ss. 7 and 12 of the Charter, did not neglect to interpret those duties in view of the plaintiff's privacy and dignity interests. He found that the police took steps to preserve the plaintiff's modesty and privacy while they protected her, in accordance with established police policy and practice, from harming herself. The plaintiff led no evidence at trial either to challenge the reasonableness of the police policies and practices employed to preserve her life and keep her safe from harm, or to establish that meaningful alternative measures were available to the police in the circumstances to accomplish those objectives.
The trial judge considered the plaintiff's Charter claims in an analysis distinct from his consideration of her tort claims. He erred in stating that the Charter claims had to fail as the tort claims, based on the same underlying facts, failed. There may be cases where the nature and manner of treatment of a person in police custody may support a compensatory award under the Charter as a consequence of the violation of rights protected under the Charter, or the failure to consider the values that underpin those rights, notwithstanding that the requisite elements of pleaded torts are not established at trial. Although an incorrect generalization, the trial judge's statement did not displace the analysis already conducted by the trial judge of the plaintiff's Charter claims. His findings that the defendants' conduct was reasonable and in accordance with approved police policy and practice and that the police exhibited no malice or bad faith, and the plaintiff's failure to show that the applicable policy and practice were themselves unreasonable or negligent or that any real alternative measures were available, would preclude an award of damages to the plaintiff even if it could be said that her Charter rights were breached.
APPEAL AND CROSS-APPEAL from the order of the Superior Court of Justice, Divisional Court (Then, MacDonald and Smith JJ.), [2003] O.J. No. 4239, 113 C.R.R. (2d) 44 (Div. Ct.), allowing in part an appeal from the dismissal of an action.
Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10 C.C.L.T. (3d) 157, apld [page623] R. v. Golden, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, 207 D.L.R. (4th) 18, 279 N.R. 1, 89 C.R.R. (2d) 271, 159 C.C.C. (3d) 449, 47 C.R. (5th) 1, 2001 SCC 83, distd Other cases referred to Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 24 O.R. (3d) 865n, 126 D.L.R. (4th) 129, 184 N.R. 1, 30 C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 9, 12, 15, 24(1) Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1) [as am.], 134(6) [as am.]
Edward A. Ayers, Q.C. and Michael C. Smith, for appellants (respondents by cross-appeal). Julian N. Falconer, Julian K. Roy and Suzan E. Fraser, for respondent (appellant by cross-appeal).
The judgment of the court was delivered by
CRONK J.A.:--
I. Introduction
[1] These proceedings arise from the treatment of the female respondent by the police while she was detained in a holding cell at a police lockup facility following lawful arrest. During her detention, when the respondent attempted to hang herself from her cell bars using her brassiere, her clothes were removed forcibly by two female police officers acting on the instructions of a senior officer. Thereafter, when the respondent took steps to prevent her continued surveillance in the cell by videocamera and refused the return of her clothes when they were offered to her by the police, she was handcuffed, while naked, to the bars of her cell. She remained in this position for approximately 20 minutes. Emergency blankets were then taped to the cell bars. During this interval, the respondent was potentially visible to passersby in the corridor outside her cell.
[2] After her release from custody, the respondent sued various police officers who were involved in her arrest and detention, seeking damages in the aggregate amount of $175,000 for negligence, assault, civil conspiracy and breach of rights under ss. 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms [page624] (the "Charter"). She later abandoned her claims under ss. 9 and 15 of the Charter.
[3] The trial judge dismissed the respondent's action. Based on the respondent's own actions and the applicable police policies and practices for the treatment of prisoners who attempt suicide, the trial judge held that the conduct of the police was reasonable and prudent; the police neither breached any duty owed to the respondent nor exhibited any bad faith or malice towards her; and no denial of fundamental justice occurred.
[4] The respondent's appeal to the Divisional Court was allowed, in part. That court concluded that the trial judge made a palpable and overriding error by failing to consider the respondent's claims that, in confining her to the holding cell while she was unclothed, including by handcuffing her to the bars, the police were "under a duty to take steps to maintain [the respondent's] dignity and to prevent her humiliation" [at para. 40]. In the view of the Divisional Court, the trial judge failed to determine whether any such duty exists or was breached and whether such breach, if any, entitled the respondent to damages or remedial compensation under s. 24(1) of the Charter. The Divisional Court also held that the trial judge erred by holding that the respondent's failure to establish one or more of her tort claims at trial was fatal to her claim, based on the same underlying facts, for remedial compensation under the Charter.
[5] In the result, the Divisional Court ordered a new trial on the issue whether, after disrobing the respondent, the police were negligent, committed assault, or breached the respondent's rights under ss. 7 or 12 of the Charter "by confining her in the [holding cell] and by handcuffing her to its bars without taking steps to maintain her dignity or to prevent her humiliation" [at para. 42]. The Divisional Court also ordered that the respondent's damages claims and her claim for compensation under s. 24(1) of the Charter be assessed at the second trial.
[6] The appellants appeal to this court. They argue that the Divisional Court erred by failing to properly apply the standard of appellate review mandated by Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 and by directing a new trial in the absence of any substantial wrong or miscarriage of justice, contrary to s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA"). The respondent cross-appeals, asserting that the Divisional Court erred by failing to order a new trial on the entirety of her claims against the appellants on the basis of various errors by the trial judge.
[7] For the reasons that follow, I would allow the appeal and dismiss the cross-appeal. [page625]
II. Background Facts
(1) Events at the police station
[8] On August 25, 1995, the respondent Linda Euteneier was arrested by a member of the Halton Regional Police Force on outstanding warrants for failure to appear at a trial concerning charges of obtaining credit by false pretences. Following her arrest, she was taken to a police station in Burlington where she underwent a strip search conducted by a female police officer. Euteneier makes no complaint regarding the strip search. Subsequently, she was taken to a lockup facility in Oakville where, after routine booking procedures, she was held overnight pending a bail review the next morning.
[9] At first, Euteneier was placed in a cell designated for female prisoners. She was provided with a meal and, at her request, with a cup of tea. When the drains in her cell malfunctioned, Euteneier was transferred to the "bullpen", a general holding cell, where her activities were monitored by a videocamera that was mounted to the top of the cell bars, approximately in the centre of the entrance to the bullpen. She was the only prisoner in the bullpen throughout the night.
[10] Euteneier was agitated and upset. She shouted, screamed and demanded her release and a blanket. Arrangements were made for her to speak with duty counsel by telephone and she did so. A short time later, when she complained to the police about a headache, she was taken to a local hospital for medical attention. At the hospital, she repeated her complaint of a headache and also said that she had a brain tumour that required removal. She was described by hospital personnel as "histrionic", diagnosed as having a headache and "malingering", prescribed Tylenol and released in police custody. She was returned to the Oakville facility and, by about 1:00 a.m. on August 26, was back in the bullpen.
[11] Euteneier soon became agitated and distraught again. She resumed screaming and shouting, again demanded to be released from custody, threw things at the videocamera in the cell, and requested a blanket. This continued for some time. No blanket was provided.
[12] At approximately 2:30 a.m., Euteneier removed her brassiere from underneath her clothing and attached it to the cell bars. She pulled on the brassiere, apparently testing its strength against the bars. She then donned her brassiere again. These actions were observed on the video monitor. [page626]
[13] About 30 minutes later, Euteneier was seen on the monitor attempting to hang herself from her cell bars by using her brassiere. On this occasion, she placed her head inside one end of the brassiere, attached the other end to the cell bars and released her weight against the bars.
[14] Euteneier's conduct was brought to the attention of Sergeant Kirk Lampman, a male police officer who was the acting staff sergeant and officer-in-charge of the lockup facility. He promptly attended the bullpen with a female police officer, Constable Jody Wilson. He cut Euteneier's brassiere strap, thereby releasing her from the cell bars. Euteneier appeared to be unharmed. He then instructed Wilson and Constable Andrea Gaynor, another female police officer, to remove Euteneier's clothing. They did so, despite Euteneier's resistance. Lampman was present throughout.
[15] During the next several hours, the police checked on Euteneier's physical condition approximately every 30 minutes. This consisted of the visual observation of Euteneier through the bars of the bullpen and, when she appeared to be sleeping, ensuring that she was breathing. Lampman personally conducted two of these "physical checks". No physical contact between Lampman and Euteneier took place.
[16] Lampman was relieved of duty by Acting Staff Sergeant Jeffrey Siemon at about 5:45 a.m. on August 26. During the shift change-over, Lampman told Siemon that a naked female prisoner, who had attempted suicide earlier in the night, was being held in the bullpen. Lampman did not tell Siemon of his view that this suicide attempt was not genuine but, rather, an attention-seeking ruse by Euteneier.
[17] When he began his shift, Siemon walked by the bullpen to check on Euteneier. Approximately 15 minutes later, at about 6:00 a.m., he was informed that Euteneier could no longer be seen on the video monitor. Officers Siemon and Wilson then went to the bullpen.
[18] Initially, Siemon remained in the corridor alongside the bullpen, out of Euteneier's line of sight, while Wilson attempted to engage Euteneier in conversation. Wilson confirmed that Euteneier was standing in the corner of the bullpen that housed the toilet facilities, a location from which she could not be monitored by the videocamera.
[19] Wilson offered Euteneier her clothes back several times. Euteneier did not reply to these offers. Siemon then moved to the front of the bullpen where Euteneier could see him, identified himself as the officer-in-charge of the police station, and requested that Euteneier move into the view of the videocamera. [page627] When Euteneier made no response, Siemon told her that she had five minutes to move out of the corner of the cell, failing which she would be handcuffed to the bars in view of the videocamera to permit her surveillance. The officers then withdrew.
[20] Five minutes elapsed and Euteneier still did not move from the corner of the cell. Siemon then instructed Wilson and another female police officer, Constable Carla Draper, to handcuff Euteneier to the centre of the bars of the cell where she could be monitored by the videocamera. Euteneier was warned again that if she failed to move into the view of the videocamera, she would be handcuffed to the bars. At trial, Siemon testified that Euteneier replied: "No. I'm not going anywhere. You'll all be charged." According to Siemon, Euteneier was offered the return of her clothes again, but she declined, stating: "No. Handcuff me here naked. I want you all charged." Siemon stated that Euteneier then moved out of the corner of the cell, pointed her finger at Wilson and said"I want her charged with rape." Draper, together with Wilson, was standing inside the bullpen. She grabbed one of Euteneier's wrists and handcuffed it to the cell doors, in line with the videocamera. No physical injury to Euteneier or the police officers occurred.
[21] Siemon, Wilson and Draper then left the bullpen. Within about 20 minutes, Siemon and Wilson obtained two emergency blankets from nearby police cruisers and Wilson returned to the bullpen and taped them to the outside of the cell bars. However, during the intervening period, a female police officer (Gaynor) and two males (a male police officer and a male prisoner) passed by the bullpen. Gaynor testified at trial that she directed both men to look away from the bullpen as they passed it.
[22] Approximately one hour later, Euteneier accepted the return of her clothes, the handcuffs were removed and she dressed herself. She then spoke with a lawyer by telephone and was taken to court for a bail review. Bail was denied and Euteneier remained in jail for another four days. After pleading guilty to one of the outstanding charges against her, she was sentenced and released from custody.
(2) Civil proceedings
[23] At the outset of trial, Euteneier's motion to add the Halton Regional Police Services Board as a defendant in her civil action was granted. Ultimately, the action against several defendants was dismissed on consent. Consequently, the trial judgment concerned her claims against Lampman, Siemon, Wilson, Draper, Gaynor, Christopher Lee (the arresting officer), Roslyn Pall (a [page628] civilian desk clerk whose duties included monitoring the video recording of the bullpen) and the Halton Regional Police Services Board.
[24] The defence led evidence (including expert evidence) at trial that Euteneier's disrobing accorded with established police policy for the protection and safety of prisoners who attempt to commit suicide and that her subsequent handcuffing to the bars of the bullpen in a naked state conformed, in the circumstances, with accepted police practice to ensure her continued surveillance and safety.
[25] Lampman and Siemon both testified. Lampman said that his duties as acting officer-in-charge of the lockup facility included ensuring Euteneier's safety, security, control and welfare; that although he did not believe that Euteneier's effort to hang herself was a genuine suicide attempt, he ordered the removal of her clothing for her own safety and to prevent her from harming herself, even accidentally; that approved police policy required the removal of Euteneier's clothes, given her use of them in an apparent attempt to kill herself; and that no other options were then available to him, other than removing Euteneier's clothes, in order to fulfill his duties.
[26] Siemon, in turn, testified that the video monitoring of the respondent was intended to ensure her safety and well-being by alerting the police if she tried to hurt herself or required medical assistance. He also said that, before directing that Euteneier be handcuffed to the bars of the bullpen, he considered whether there were any other options available to ensure her continued surveillance. He concluded that none was available.
[27] The defence also called the officer-in-charge of the Toronto Police Service's central lockup for female prisoners to give expert evidence concerning the duties and obligations of an officer-in-charge of a police lockup. This witness, Staff Sergeant David Butt, offered the opinion that when a police prisoner attempts to hang himself or herself by using his or her own clothes, arrangements would be made to have the prisoner's clothing removed to prevent injury to the prisoner or others. He said that this action would be taken even if the suicide attempt appeared to be fake, because the police could not be sure that the attempt was not genuine. According to Butt, if a prisoner attempts to prevent police video monitoring, and refuses to cease such efforts upon request, the prisoner would be restrained by handcuffing him or her to the cell bars. He stated that this action would be taken to ensure proper monitoring and to prevent injury to the prisoner. [page629]
[28] Euteneier led no evidence to contradict this defence evidence concerning established police policy and practice for the treatment of persons in custody who attempt to commit suicide or otherwise harm themselves.
[29] Euteneier's action was tried over eight days in the fall of 2000 before Festeryga J. of the Superior Court of Justice. By judgment dated November 22, 2000, he dismissed the action and awarded costs to the appellants on a party and party basis, payable forthwith after assessment. He also assessed Euteneier's damages in the sum of $7,873.
[30] Euteneier appealed. Because the trial judge's damages assessment was less than $25,000, the trial judgment was appealable to the Divisional Court under s. 19(1)(a)(iv) of the CJA. In January 2003, Euteneier's appeal was heard by E. Then, J. MacDonald and G.P. Smith JJ. of the Superior Court of Justice, sitting as the Divisional Court. By order dated November 10, 2003, the Divisional Court allowed the appeal, in part, and ordered a new trial concerning:
(i) "[Euteneier's] allegations that, after disrobing her, the [defendants] were negligent, or assaulted her, or breached her rights pursuant to section 7 or section 12 of the Charter by confining her in the bullpen and by handcuffing her to its bars without taking steps to maintain her dignity or to prevent her humiliation"; and
(ii) any damages, or remedial compensation pursuant to s. 24(1) of the Charter, that may flow from the issue ordered retried in paragraph (i), above.
The Divisional Court also directed that the costs of the first trial be reserved to the trial judge conducting the new trial and that the costs of the appeal be paid by the appellants to Euteneier in the cause of the retrial, on a partial indemnity basis, after assessment.
[31] The appellants appeal the Divisional Court's decision. They argue that the Divisional Court erred by failing to properly apply the standard of appellate review mandated by Housen, supra, and by directing a new trial although no substantial wrong or miscarriage of justice arose as a result of the trial.
[32] Euteneier cross-appeals. She contends that the trial judge erred in his consideration of the duty of care owed to her by the police by failing to take into account her privacy and dignity interests and, further, by failing to consider her Charter claims independently of her tort claims. Based on these errors, Euteneier [page630] asserts that the Divisional Court in turn erred by directing a new trial only in respect of the appellants' conduct after Euteneier was disrobed, rather than in respect of all her claims against the appellants arising from her detention in the holding cell.
III. Issues
[33] As framed by the parties, there are two issues on the appellants' appeal:
(1) Did the Divisional Court err by failing to properly apply the standard of appellate review established by Housen?
(2) Did the Divisional Court err by directing a new trial on the issues identified by that court, in the absence of any substantial wrong or miscarriage of justice, contrary to s. 134(6) of the CJA?
[34] There is one issue on Euteneier's cross-appeal:
(1) Did the Divisional Court err by failing to direct a new trial on the entirety of Euteneier's claims against the appellants?
IV. Analysis
A. Appeal
(1) Standard of appellate review
[35] The trial judge accepted the defence position at trial that the forcible disrobing of Euteneier and the subsequent handcuffing of her to the bars of her cell, while naked, were actions responsive to conduct by Euteneier that appeared to endanger her safety and well-being. He held that this police conduct was prudent and reasonable in the circumstances and that it conformed to reasonable and established police policy and practice for the treatment of prisoners who attempt to commit suicide.
[36] In particular, the trial judge found that at the time of Euteneier's arrest and detention: (i) there was a general and approved police policy that"where there has been an attempted suicide either real or fake, the clothes of the prisoner are removed be that prisoner male or female"; and (ii) there was also a general and approved police practice that a prisoner who attempts to commit suicide "be kept under surveillance and kept in view in order that the prisoner does not continue to attempt to do harm to herself or himself either intentionally or accidentally". These findings were overwhelmingly supported by the evidence and are not challenged by Euteneier before this court. [page631]
[37] The trial judge also held that it was reasonable for Lampman, as the acting officer-in-charge of the lockup facility, to be present when Euteneier's clothes were removed because it was his duty "to be present for the safety of the officers and the prisoner in case things got out of hand"; it was reasonable for Lampman to direct the removal of Euteneier's clothes by two female police officers once Euteneier refused to remove her clothes herself; prior to her handcuffing to the bars of her cell, Euteneier was asked, several times, whether she wanted her clothes back, but she refused"to make a point that she was in control"; Euteneier was also asked to voluntarily reposition herself within her cell to permit resumption of her monitoring on the videocamera in the bullpen, but she declined to do so; the video surveillance by the police of prisoners who attempt to commit suicide is itself a reasonable practice; because Euteneier refused to come back into the view of the videocamera when asked to do so"There was no alternative but to handcuff her to the bars to be viewed through the videocamera"; the handcuffing of Euteneier, in the circumstances, was reasonable; and the police acted reasonably and prudently to protect Euteneier from foreseeable risks and without malice or bad faith.
[38] These key findings attract considerable deference from a reviewing court. Absent palpable and overriding error by the trial judge, appellate interference with such findings is precluded: Housen, at pp. 248-56 S.C.R.
[39] The Divisional Court did not purport to interfere with these findings. In its reasons for decision dated November 10, 2003, the Divisional Court stated (at paras. 40-42):
In our opinion, the trial judge made a palpable and overriding error in failing to consider and decide a significant part of [Euteneier's] claims. Having held that the [police] were justified in completely disrobing [Euteneier], the trial judge did not consider [Euteneier's] additional position that, in confining her to the bullpen while unclothed, including handcuffing her to the bars to keep her from the relative privacy of the toilet area, the [police] were under a duty to take steps to maintain [Euteneier's] dignity and to prevent her humiliation. The trial judge did not determine whether any such duty exists, either under the Charter or otherwise, whether any such duty was breached and whether any such breach entitles [Euteneier] to damages and/or remedial compensation pursuant to s. 24(1) of the Charter.
[Euteneier] has not persuaded us that the trial judge erred in finding that the [police] did not commit an actionable or compensable wrong, including [a] breach of [Euteneier's] Charter rights, by disrobing her.
We order a new trial of [Euteneier's] allegations that, after disrobing her, the [police] were negligent, or assaulted her, or breached her rights pursuant to section 7 or section 12 of the Charter by confining her in the bullpen and by handcuffing her to its bars without taking steps to maintain her dignity or to prevent her humiliation. [page632]
[40] In supplementary reasons dated January 30, 2004, the Divisional Court stated: "We have not overturned findings or conclusions made by the trial judge. We dismissed the appeal in respect of his findings and conclusions. We set aside only the trial judge's order dismissing the action, to permit trial of the issue which was overlooked."
[41] The central question on the appellants' appeal, therefore, is whether the Divisional Court erred by concluding that the trial judge failed to consider and adjudicate upon "a significant part" of Euteneier's claims, namely, her assertions that the appellants were obliged "to take steps to maintain [her] dignity and to prevent her humiliation" after she was disrobed.
[42] The appellants argue that the Divisional Court failed to apply the controlling principles of judicial review articulated in Housen. They submit that, upon proper application of these principles, there was no basis here for appellate intervention because the trial judge both considered the entirety of the evidence and, based on this review, rejected Euteneier's claims, including those under ss. 7 and 12 of the Charter. On the record before this court, I agree, for the following reasons.
[43] The Supreme Court of Canada stated in Housen at p. 264 S.C.R.:
[W]e emphasize that the failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence. This was made clear by the recent decision of [Van de Perre v. Edwards, [2001] S.C.R. 1014], where Bastarache J. says, at para 15:
. . . omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian Ad Litem of) v. Ashmore (1999), 1999 BCCA 6, 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused, [2001] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.
(Emphasis in original)
[44] In Housen, it was unclear from the trial judge's reasons which portions of the evidence of several witnesses the trial judge relied upon, or to what extent. Nonetheless, the Supreme Court concluded at pp. 280-81 S.C.R.:
[T]he full evidentiary record was before the trial judge and, absent further proof that the omission in her reasons was due to her misapprehension or neglect, of the evidence, we can presume that she reviewed the evidence in its entirety and based her factual findings on this review. This presumption, absent sufficient evidence of misapprehension or neglect, is consistent with the high level of error required by the test of "palpable and overriding error". [page633]
[45] In this case, the Divisional Court observed that the trial judge failed to make specific findings concerning Euteneier's assertions that the appellants owed duties to her to maintain her dignity and to prevent her humiliation while she was in custody. Having identified this 'omission' in the trial judge's reasons, the Divisional Court then embarked upon its own review of the record to determine if there was "any evidence capable of supporting these allegations and if so, whether such findings are implicit in either the trial judge's reasons or disposition". As I have already said, following this review, the Divisional Court concluded that the trial judge failed to consider "a significant part of [Euteneier's] claims".
[46] I disagree, for two reasons. First, as I next discuss, the record in this case and the reasons of the trial judge, read as a whole, do not support a reasoned belief that the trial judge forgot, ignored or misconceived the evidence regarding Euteneier's interests in maintaining her dignity and privacy while she was in custody or her assertions that the appellants failed to discharge duties owed to her to maintain her dignity and privacy interests. In my view, the Divisional Court misconceived the trial judge's reasons in this respect, and thereby erred when it undertook its own assessment of the evidence on these issues and directed a new trial.
[47] Second, as I will also discuss, Euteneier did not plead that the appellants owed duties to her to maintain her dignity and to prevent her humiliation. Rather, as framed in her pleading, her allegations concerning her dignity and privacy interests were either particulars of the causes of action asserted by her against the appellants or descriptions of the consequences that she claimed flowed from the wrongful acts of the police. Yet, the Divisional Court appears to have treated these allegations as stand-alone causes of action, which required specific adjudication at trial. In my view, this approach was in error.
(i) Trial judge's consideration of Euteneier's [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) claims
[48] The trial judge [at [2000] O.J. No. 4533 (S.C.J.)] recognized that Euteneier sought relief for breaches of rights under ss. 7 and 12 of the Charter. He addressed, albeit in a brief fashion, the rights protected by those sections, certain of the jurisprudence concerning the scope of the rights established under ss. 7 and 12, and the duties owed by the appellants thereunder and under the common law. He then made the following important findings: the appellants exhibited no malice or bad faith towards Euteneier; he was [page634] not satisfied that the appellants' actions had a "serious and profound effect on [Euteneier's] psychological integrity" [para. 81], as required at law to establish a breach of the security right enshrined in s. 7 of the Charter; and no denial of fundamental justice occurred.
[49] The Divisional Court concluded that the trial judge's finding of no malice or bad faith on the part of the appellants was a "general finding" that "could not have been made in respect of the claim that the [police] failed to maintain [Euteneier's] dignity and to prevent her humiliation because these aspects of [Euteneier's] claims were not considered by the trial judge" [para. 39]. With respect, I disagree. The trial judge's finding of no malice or bad faith by the appellants was set out in his reasons in the context of his discussion of the duties owed by the police under ss. 7 and 12 of the Charter. As I read his reasons, this finding was expressly linked to Euteneier's Charter claims and, therefore, to the particulars of the Charter breaches that she pleaded.
[50] Perhaps more importantly, read as a whole, the trial judge's reasons indicate that he was alive to Euteneier's interests in having her dignity and privacy protected while she was in custody. Early in his reasons [at para. 6], the trial judge held that the offers by the police to return Euteneier's clothes to her before she was handcuffed were intended "to protect her modesty"; that the affixing of blankets to the outside of the bullpen cell bars was intended "to give the plaintiff some privacy" and to protect her "modesty" while still maintaining the objective of monitoring her activities by videocamera (an objective held by the trial judge to be reasonable given Euteneier's apparent attempt to commit suicide); and that there was no alternative, in the circumstances, but to handcuff Euteneier to the cell bars in a naked state. Although the trial judge did not mention the words "dignity" and "humiliation" in his reasons, his factual findings clearly contemplate Euteneier's right to privacy and her interest in preserving her dignity.
[51] The evidentiary record in this case also supports the conclusion that the trial judge was mindful of Euteneier's claims that the appellants failed to take steps to maintain her dignity and to prevent her humiliation. For example, Officer Draper was cross-examined at trial concerning the possibility of handcuffing Euteneier to the bullpen cell bars without first removing her clothes. Draper testified that, because this option was "better" than handcuffing Euteneier to the bars in a disrobed state, numerous offers of the return of her clothes were made to Euteneier. However, Draper said that there was no alternative but to handcuff Euteneier to the cell bars without her clothes when [page635] Euteneier declined the return of her clothing and also refused to move back into an area of the bullpen from which she could be seen on the videocamera.
[52] Draper then agreed that, instead of removing Euteneier's clothes earlier in the evening as a measure of protecting her, handcuffing her to the cell bars with her clothes on might have been an option. The trial judge then asked Draper to clarify her evidence on this issue, and Draper stated:
I think her clothing was being offered to keep her dignity while she was being handcuffed to the bars. The bar handcuffing was no option. That was the way it was going to be and [Euteneier] was told that.
(Emphasis added)
[53] This intervention by the trial judge suggests that he was alert to the claim that alternative actions, which Euteneier contended would have maintained her dignity and prevented her humiliation, may have been available to the police.
[54] Finally, in his reasons, the trial judge prefaced his discussion of Euteneier's Charter claims with the following statement [at para. 76]:
I will state it here and I will repeat it later in these reasons that when I consider all of the evidence the police officers tried to make the plaintiff comfortable. They brought her tea, something to eat, took her to the hospital when appropriate, [and] tried to protect her from accidental injury to herself while the plaintiff was unco-operative and unreasonable.
(Emphasis added)
(ii) Euteneier's pleading
[55] In her statement of claim, which was amended on three occasions, Euteneier pleaded:
- The Defendants individually or collectively were negligent and in breach of her Charter rights in the manner in which they processed and detained the Plaintiff at the material times supra, particulars of which are as follows:
(d) they failed to prevent or take steps to prevent the humiliation of the [Plaintiff];
(f) they failed to take steps to insure [sic] that the dignity of the Plaintiff was maintained while under their custody.
- In the alternative, the Defendants were wilful in their acts and omissions and conspired with one another to overreach their authority to the physical discomfort and psychological humiliation of the Plaintiff.
. . . . . [page636]
- The Plaintiff claims damages for the assault upon her and breaches of her Charter rights by the Defendants:
(e) the forced removal of her clothes by officers, at the Oakville Police Station; and
(f) the handcuffing of the Plaintiff by one arm for the night in a standing position.
[56] Thus, as pleaded, Euteneier's assertions concerning her dignity and privacy interests were advanced as particulars of her allegations of negligence and Charter breaches by the appellants, or as alleged consequences of civil conspiracy. In rejecting these allegations, the trial judge was not obliged to address in his reasons each of the particulars asserted by Euteneier. I agree with the appellants that because the trial judge did not expressly mention all the particulars or claimed consequences of the causes of action asserted by Euteneier, it cannot be concluded that he failed to consider some of them.
[57] In all these circumstances, I am unable to conclude that the trial judge neglected or misapprehended the evidence relevant to Euteneier's assertions that the appellants failed to take her privacy and dignity interests into account. Although the trial judge might have addressed these issues more directly in his reasons, I am not persuaded that he failed to consider them in disposing of Euteneier's Charter claims.
[58] Accordingly, as the test established in Housen for appellate intervention was not met on the ground relied upon by the Divisional Court, I would allow the appellants' appeal. Consequently, it is unnecessary to address the appellants' additional argument that the Divisional Court erred by directing a new trial in the absence of any substantial wrong or miscarriage of justice, contrary to s. 134(6) of the CJA.
B. Cross-Appeal
[59] Euteneier makes two arguments in support of her cross-appeal. She submits that the trial judge erred in his formulation of the duty of care owed to her by the police by failing to take into account her privacy and dignity interests and further erred by failing to consider her Charter claims independently of her tort claims. Euteneier next maintains that, by failing to properly address these errors by the trial judge, the Divisional Court itself erred by failing to direct a new trial concerning the entirety of her claims against the appellants. I would reject these submissions, for several reasons. [page637]
[60] First, I have already concluded that the trial judge did not fail to consider Euteneier's privacy and dignity interests. As I have said, both the reasons of the trial judge and the evidentiary record reveal that the trial judge was alert to these interests and considered them in dismissing Euteneier's action.
[61] Second, the trial judge's articulation of the duties owed by the appellants to Euteneier expressly contemplated her rights under ss. 7 and 12 of the Charter. The trial judge stated [at para. 77] concerning s. 12"There is a duty on the police officers not to administer cruel and unusual punishment to a prisoner" and [at para. 80], in respect of s. 7"There is a duty on the police officers under s. 7 of the Charter not to deprive the plaintiff of the right to life, liberty and security of the person except in accordance with principles of fundamental justice. I have already commented on the principles of fundamental justice earlier in my reasons." The trial judge concluded, in this regard, that the appellants acted reasonably and that Euteneier was not denied fundamental justice.
[62] As I understand her argument, Euteneier's real complaint is that the trial judge mischaracterized the duty of care owed to her by the police by failing to specifically discuss her privacy and dignity interests when articulating, and subsequently considering, the duties owed by the appellants to Euteneier under the Charter.
[63] But Euteneier properly conceded in oral argument before this court that there is no 'free-standing' right to dignity or privacy under the Charter or at common law. For example, although respect for human dignity underlies many of the rights and freedoms in the Charter, it is not a principle of fundamental justice under s. 7 of the Charter.
[64] That said, it is well-established that the common law must be interpreted in light of Charter values when a constitutional challenge is brought to government action: see Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at paras. 82-91 and R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, at p. 726 S.C.R. This extends to the interpretation of duties owed by the police to persons in custody following lawful arrest.
[65] The issue here is whether the trial judge, having identified the duties owed by the police under ss. 7 and 12 of the Charter, neglected to interpret these duties in view of Euteneier's privacy and dignity interests. For the reasons that I have already given, I do not believe that the trial judge's reasons, properly read, support this conclusion. [page638]
[66] The trial judge in this case did not fail to identify the obligations of the police under ss. 7 and 12 of the Charter. To the contrary, as I have described, he found that the police took steps to preserve Euteneier's modesty and privacy while they protected her, in accordance with established police policy and practice, from harming herself.
[67] In addition, and contrary to Euteneier's submission, the record reveals that, to the extent that they were identified in the evidence at trial, the trial judge was alert to the possible alternative steps available to the police. He found that no blankets were available in the lockup to be provided to Euteneier prior to her disrobing; that the offers of the return of Euteneier's clothes to her prior to her being handcuffed to the cell bars were a measure taken precisely because the police were seeking to preserve her modesty and privacy; and that the taping of the emergency blankets to her cell was undertaken for the same purpose. The trial judge also sought clarification of the evidence when it was suggested during Draper's cross-examination that Euteneier could have been handcuffed to her cell bars with her clothes on. He was thus attentive to the significance of any evidence that arguably supported the claim that practical alternatives were available to the steps carried out by the police.
[68] Third, in my opinion, Euteneier's position is not assisted by Golden. Euteneier relies on Golden to argue that handcuffing her to the bars of the bullpen at the outset, before she was disrobed, was preferable to and less invasive than the measures employed by the police because it would have minimized intrusion upon her dignity and privacy interests. She further argues that the presence of a male police officer (Lampman) while she was disrobed was intrusive of her dignity and privacy interests, and contrary to the principles set out in Golden.
[69] But, unlike this case, Golden was concerned with the constitutional validity under s. 8 of the Charter of a strip search conducted by the police. Golden held that although strip searches cannot be carried out as a matter of routine police policy because of their humiliating and degrading impact on a detainee, they nonetheless may be lawfully conducted in specific circumstances as an incident to a lawful arrest. No strip search is at issue here.
[70] Of greater significance, although Euteneier submits that the police policies and practices at issue here should not have been held to be reasonable without some testing of them against the values that underlie the rights protected by the Charter, she led no evidence at trial either to challenge the reasonableness of the police policies and practices employed to preserve her life and [page639] to keep her safe from harm, or to establish that meaningful alternative measures were available to the police in the circumstances to accomplish those objectives.
[71] In addition, viewed from one perspective, handcuffing a prisoner to the bars of his or her cell to prevent suicide attempts is a more intrusive and constraining measure than removing the prisoner's clothes. The handcuffing of a prisoner to the bars of a police cell is a form of restraint: it prevents freedom of movement, confining the prisoner in one location until release.
[72] On the record before us, I would also reject Euteneier's contention that Lampman's presence when she was disrobed and his subsequent physical checks of her condition breached her Charter rights. Lampman testified that he was not a "spectator" to the events concerning Euteneier. Rather, his involvement was necessary, in his opinion, in order to discharge his duties as the officer-in-charge of the lockup facility and to ensure the safety of both Euteneier and those police officers who were involved in her disrobing. The trial judge accepted this evidence, as he was entitled to do. His factual findings in this regard are not tainted by error.
[73] Finally, I do not accept Euteneier's argument that the trial judge failed to adequately consider her Charter claims independently of her tort claims. The trial judge stated in this regard [at para. 82]:
The plaintiff's claims for breach of Charter rights are based on the same facts on which she relies to establish assault and negligence. If she fails on negligence and assault, surely she must fail in her claims under sections 7 and 12 of the Charter.
[74] The Divisional Court concluded [at para. 34] that it was "overly broad to hold that failure to prove one or more tort claims means that a claim for remedial compensation pursuant to s. 24(1) of the Charter based on the same facts must thereby fail", and that "[C]ases may arise in which the court considers it appropriate and just in the particular circumstances to award remedial compensation pursuant to s. 24(1) of the Charter even though a claim in tort has been dismissed."
[75] I agree. In particular, in my view, there may well be cases where the nature and manner of treatment of a person in police custody may support a compensatory award under the Charter as a consequence of the violation of rights protected under the Charter, or the failure to consider the values that underpin those rights, notwithstanding that the requisite elements of pleaded torts are not established at trial.
[76] But, in this case, the trial judge considered Euteneier's Charter claims in an analysis distinct from his consideration of [page640] her tort claims. After doing so, and in that context, the trial judge commented that the failure by Euteneier to establish her tort claims, based on the same underlying facts, would also defeat her Charter claims. Although an incorrect generalization, in my opinion this remark did not displace the analysis already conducted by the trial judge of Euteneier's Charter claims.
[77] In the end, therefore, the trial judge conducted a discrete assessment of Euteneier's Charter claims, found that the conduct of the appellants was reasonable and in accordance with approved police policy and practice, and held that the police exhibited no malice or bad faith. Furthermore, there was no showing by Euteneier that the applicable police policy and practice were themselves unreasonable, negligent, otherwise fell below the standard of care to which the appellants were bound, or that any real alternative measures were available to the police given Euteneier's conduct. These factors would preclude an award of damages to Euteneier even if it could be said, contrary to the trial judge's findings, that her Charter rights were breached.
[78] Accordingly, I would dismiss the cross-appeal.
V. Disposition
[79] For the reasons given, I would allow the appeal and dismiss the cross-appeal. The appellants shall deliver their brief written submissions concerning the costs of these proceedings to the Registrar of this court within ten days from the date hereof. Euteneier shall deliver her brief responding costs submissions to the Registrar within ten days from the delivery of the appellants' submissions.
Appeal allowed; cross-appeal dismissed.