CITATION: Puricelli v. Toronto Police Services Board, 2014 ONSC 6861
COURT FILE NO.: SC-10-099874-00; Div. Ct. file No. 280/13
DATE: 20141126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
TORONTO POLICE SERVICES BOARD, SHAKEEL CHAUDHRY a.k.a. PC8844, KEVIN SARJOO a.k.a. PC8442, DANIEL BALACHOREK a.k.a. PC99798 and SHAWN STRILEC a.k.a. PC9261
Defendants
(Appellants)
– and –
DEBORA PURICELLI
Plaintiff
(Respondent)
David A. Gourlay
For the Defendants (Appellants)
Patrick Mazurek
for the Plaintiff (Respondent)
HEARD: May 26, 2014
THEN J.:
[1] The appellants, the Toronto Police Services Board (the “Board”), Police Constable Shakeel Chaudhry (“P.C. Chaudhry”) and Police Constable Kevin Sarjoo (“P.C. Sarjoo”), appeal the judgment of the deputy judge of the Toronto Small Claims Court in an action for damages for excessive force by the appellants in arresting the respondent. The deputy judge awarded $7,500 in general damages, $150 in special damages and $3,500 in costs to the respondent Ms. Puricelli. The appellants appeal only the finding of liability, not the amount of damages or costs. The deputy judge dismissed the action against Police Constables Balachorek and Strilec. The respondent has not cross-appealed that dismissal.
the position of the parties
[2] The appellants argue that the deputy judge erred in law in two ways. First, he did not consider the justification provided by s. 25 of the Criminal Code to police officers who used necessary force to effect a lawful arrest; nor did he consider any of the jurisprudence dealing with s. 25, which outlines the appropriate factors to consider in determining whether the force applied was excessive in the circumstances. Second, by failing to consider the relevant factors, and by considering extraneous factors, the deputy judge erred in finding that the actions of the police were unjustified and the force used excessive and, in the circumstances, that no use of force was justified in making the arrest. In addition, the appellants submit that the deputy judge committed palpable and overriding errors of fact by failing to consider any of the relevant specific circumstances in making his finding of excessive force.
[3] The respondent argues that while the deputy judge in his reasons did not specifically refer to any of the statutory provisions or authorities, when read as a whole, his decision illustrates that he was aware of the relevant principles, evidence and authorities. Accordingly, his finding that the actions of the police in the circumstances of this case were both unjustified and excessive should not be disturbed. Moreover, his finding that the force was excessive is owed deference in the absence of palpable and overriding error where there is evidence to support that finding.
[4] For reasons which I shall develop, I am of the view that the appeal should be allowed and a new trial ordered.
the facts
[5] On April 22, 2008, the plaintiff was riding her bicycle from her place of work southbound on Yonge Street at Scrivener Square approaching the intersection which is governed by traffic lights. The police officers, who were part of the TAVIS Anti-Gang squad, were travelling southbound on Yonge Street in an unmarked van. They observed the plaintiff proceeding through the intersection without stopping for the red light. The plaintiff testified that she had stopped for the red light but the deputy judge found as a fact that she had not.
[6] The officers in the van were on patrol, dressed in full uniform except for their hats. They pursued the respondent. whom they observed to make some erratic lane changes. They caught up to her while she was riding her bicycle in the curb lane. P.C. Chaudhry was in the front passenger seat of the van. He identified himself as a Toronto Police Officer, extended his arm out the window to display the Toronto Police Service insignia on the shoulder of his uniform, and directed the respondent to pull over.
[7] The plaintiff responded with words to the effect of “I’m not stopping for you guys. Fuck off.”
[8] The respondent testified that the officers were wearing tee shirts.
[9] The deputy judge found as a fact that the officers were in uniform; that P.C. Chaudhry called out that he was an officer; and that the plaintiff responded with profanity and refused to stop. However, he also found that the plaintiff genuinely did not believe that the men in the unmarked van were police officers until she was apprehended. In his reasons he stated:
The plaintiff’s evidence, which I accept as credible, is that she was in fear of her safety and trying to get away from four men in an unmarked van whom she did not have reason to believe were police officers.
[10] The plaintiff testified that even if she had heard P.C. Chaudhry identify himself as a police officer, she would not necessarily have stopped.
[11] After the interaction with P.C. Chaudhry, the respondent proceeded southbound for a short distance. She then made a U-turn across four lanes of traffic and proceeded northbound on Yonge Street in the curb lane to get away from the officers.
[12] P.C. Chaudhry and P.C. Sarjoo got out of the van and began to pursue the respondent on foot across Yonge Street. P.C. Sarjoo caught up to the respondent the bicycle as it was slowly moving in the curb lane and attempted to take hold of the bicycle as well as the respondent. Although he did not want to take hold of the respondent’s body for fear of touching a sensitive area of her person, he grabbed her left arm. In doing so he unintentionally caused her to lose control of the bike. Both she and the bicycle fell to the ground, causing injury to the respondent. The officers observed scrapes and bruising to the respondent’s elbows and knees, and offered to call an ambulance which the respondent refused. The respondent also complained of bruising to her inner thighs and pelvis. The respondent struggled with the officers when they attempted to handcuff her. It is common ground that the handcuffs were put on awkwardly and the respondent suffered some cartilage damage to her wrist as a result.
[13] Both P.C.s Chaudhry and Sarjoo testified that they were obliged to stop the respondent and require her identification. When she refused they had a duty to arrest her. They were also concerned to prevent her from escaping and causing a danger to others on the road.
[14] P.C. Sarjoo testified that he did not know how to stop the respondent without physically taking hold of her and the bicycle, and that the urgent situation left him little time to think about alternatives.
[15] At trial, P.C. Balachorek responded to the suggestion from respondent’s counsel that the officers could have called for marked police vehicles as an alternative to physically stopping the respondent. P.C. Balachorek testified that such a course of action would have been impractical: it would have taken 3 to 5 minutes for the police cruisers to arrive, and the respondent would most probably have escaped into one of the many streets and alleyways in the area.
the issues
[16] The issues on this appeal may be formulated into three questions as follows:
Did the deputy judge err in law in finding that the actions of the police were unjustified, and that they used undue or excessive force because he failed to consider the justification provided by s. 25 of the Criminal Code?
Did the deputy judge err in law in finding that the actions of the police were unjustified, and that they used undue or excessive force, by failing to apply s. 218(4) of the Highway Traffic Act by failing to consider the jurisprudence under s. 25 of the Criminal Code; by considering extraneous circumstances; and/or by overlooking the relevant exigent circumstances?
Is it open to this court to interfere with the finding of fact that the police used excessive force, on the basis that the deputy judge failed to consider the relevant exigent circumstances and thereby fell into palpable and overriding error?
analysis
Issue 1 – Section 25 of the Criminal Code
[17] In apprehending, arresting and detaining suspects, police are regularly required to use force on individuals without consent. To enable police officers to perform those tasks without risk of incurring civil liability, s. 25 of the Criminal Code justifies the use of necessary force proportionate to the specific circumstances.
[18] Section 25 of the Criminal Code states:
Criminal Code, R.S.C., 1985, c. C-46
PROTECTION OF PERSONS ADMINISTERING AND ENFORCING THE LAW
Protection of persons acting under authority
- (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
[19] The Supreme Court of Canada commented on s. 25 in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paras. 34-35 as follows:
[34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.
[35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude.
[emphasis added]
[20] The test to be applied under s. 25(1) of the Criminal Code in the context of a civil action involving the use of force by police officers was set out in Wilsdon v. Durham Regional Police 2011 ONSC 3419 at para. 68-69 as follows:
Section 25(1) of the Criminal Code protects a police officer from criminal and civil liability. To engage the protection of this section, a police officer must prove each of three elements on a balance of probabilities. The three elements that an officer must prove on a balance of probabilities are that he or she: (i) was required or authorized by law to perform the action, that the officer undertook, in the administration or enforcement of the law; (ii) acted on reasonable grounds in performing the action; and (iii) did not use unnecessary force.
Even if unnecessary force is found to have been employed, in order to succeed on his action, the plaintiff must prove on a balance of probabilities that a police officer used excessive force that caused injury to the plaintiff.
[citations omitted; emphasis added]
[21] Section 25 of the Criminal Code does not refer to the state of mind of the person who is subject to arrest. As I will illustrate later in these reasons, the deputy judge erred in applying his finding that the respondent did not know she was dealing with the police in relation to (1) the lawfulness of the arrest; (2) the actions taken by the police to make the arrest; and (3) the force needed to effect the arrest.
[22] In my view, there is nothing in the wording of s. 25(1) or in the authorities dealing with s. 25(1) to suggest that the police must satisfy themselves that the suspect knows she is dealing with the police before either making the arrest or using force to stop and restrain her. Nasogaluak and Wilsdon only require an officer who is authorized to do anything to act on “reasonable grounds” and refrain from using force which is excessive in the circumstances.
[23] In this case, had s. 25 of the Criminal Code been properly applied, the issue of whether the respondent knew or ought to have known that the four men in the unmarked gray van were police officers is simply irrelevant. If the respondent’s claim that she was subjectively unaware of the status of the occupants of the van is accepted, this explains only why she refused to stop or to submit to arrest. However, the real issue on appeal is whether her actions in running the red light and refusing to stop justified the officers’ reactions in arresting her, not why she acted as she did.
[24] I agree with the appellants’ submission that the first two elements in Wilsdon were established by the deputy judge’s own findings and the respondent’s evidence.
[25] To reiterate, the first two elements of the test in Wilsdon are (1) whether the officer was required or authorized by law to perform the action that the officer undertook in the administration or enforcement of the law and (2) whether the officer acted on reasonable grounds.
[26] The appellants rely upon s. 218 of the Highway Traffic Act, which empowers the police to stop a cyclist who has violated the Act and require that person to identify him or herself. It also authorizes police to arrest without warrant a cyclist who fails to comply. Section 218 states:
- (1) A police officer who finds any person contravening this Act or any municipal by-law regulating traffic while in charge of a bicycle may require that person to stop and to provide identification of himself or herself.
(2) Every person who is required to stop, by a police officer acting under subsection (1), shall stop and identify himself or herself to the police officer. …
(4) A police officer may arrest without warrant any person who does not comply with subsection (2).
(emphasis added)
[27] The appellants submit that the deputy judge’s own findings and the respondent’s testimony should have led him to conclude not only that the officers held the requisite subjective belief required by the first two factors in Wilsdon, but that their belief was reasonably held. Those findings include:
i) the respondent proceeded unlawfully through a red light;
ii) the officers were in full uniform save for their hats throughout the interaction;
iii) P.C. Chaudhry made a specific effort to identify himself as a police officer, both verbally and by pointing out the badge on his arm; and
iv) the respondent “not only refused to stop, but in no uncertain terms told the officers to get lost in graphically profane language”. In her testimony the respondent stated that she was trying to get away from the officers.
[28] I further agree with the appellants that having made these findings, the deputy judge was required to conclude that the officers had the right to stop and arrest her without warrant. There is nothing in the provisions of s. 218 of the Highway Traffic Act that requires the officers to put themselves in the shoes of the respondent to understand her subjective misapprehension of the situation and to tailor their actions accordingly. From the appellants’ perspective, she was trying to evade arrest for violating the Highway Traffic Act. Accordingly, the officers had the duty to stop and arrest her. In my view, the deputy judge erred in law in concluding that the respondent’s subjective belief that the men pursuing her were not police officers negated their power to stop or arrest the respondent.
[29] In his reasons for judgment the deputy judge stated the following:
The act of the plaintiff in unlawfully driving her bicycle against a red light does give the police lawful right to stop the plaintiff, demand identification and charge the plaintiff under the HTA. Initially Constable Chaudhry tried to identify himself to the plaintiff while the unmarked van was travelling alongside the plaintiff. Chaudhry pointed to his shoulder patch, which stated “police”, however the plaintiff not only refused to stop, but in no uncertain terms told the men in the van to get lost in graphically profane language.
I have found that the plaintiff did not understand she was dealing with police officers in an unmarked van. The plaintiff’s evidence, which I accept as credible, is that she was in fear of her safety and trying to get away from four men in an unmarked van whom she did not have reason to believe were police officers.
I find that the plaintiff crossed the traffic lanes on Yonge Street and began to travel north on her bicycle. The unmarked police van stopped, Constables Chaudhry and Sarjoo jumped out and chased the plaintiff on foot, across the lanes of the main thoroughfare until Sarjoo forcibly restrained the plaintiff while she was on the bicycle, thus causing the plaintiff and the bicycle to crash forcibly to the ground.
I find that the plaintiff, as a result of the occurrence, sustained the alleged injuries which injuries were acknowledged by some of the defendants. They were sufficient to offer to call an ambulance for the plaintiff.
After careful consideration and extensive review of the evidence and case law, I find that there was undue force exerted by PCs Chaudhry and Sarjoo to apprehend, detain and arrest the plaintiff. The evidence of the police defendants is that the plaintiff was being stopped solely for violations of the Highway Traffic Act. There admittedly was no concern of criminal activity on the part of the plaintiff in the minds of the police officers. This was an HTA offence. In running across lanes of traffic, the police endangered the plaintiff, themselves and other motorists travelling southbound and northbound. Sarjoo and Chaudhry knew or ought to have known that forcibly stopping the plaintiff’s bicycle in the manner executed with her upon it, would or may cause injuries to the plaintiff, themselves and other drivers on the road. In my view, a prudent police officer exercising good judgment would have temporarily abandoned the chase, called for the assistance of a marked police vehicle and not created a potentially volatile and dangerous situation. The officers’ unjustified actions directly resulted in the plaintiff’s injuries.
In my view, the evidence and the case law submitted by the defendants does not support the defendants’ conduct in this particular fact situation before me. I find that Police Constables Chaudhry and Sarjoo did use undue and excessive force when arresting the plaintiff. They both should have exercised better judgment under the circumstances.
(emphasis added)
[30] In his reasons, the deputy judge accepted that the police had the right, pursuant to the Highway Traffic Act, to stop the respondent, demand identification, and charge her with an offence. He did not acknowledge that, as a result of her refusal to comply, the police had the right and duty to stop and arrest the respondent. Moreover, he held that in the circumstances they should have abandoned the chase and called for the assistance of a marked police vehicle – presumably because of the respondent’s belief that the appellants were not police officers. In effect, the deputy judge has held that in the circumstances of this case the appellants ought not to have exercised their right to stop and arrest the respondent; by logical extension, they ought not to have exercised any force at all. In my view this conclusion is untenable, and would not have been reached had the deputy judge correctly applied the justification under s. 25 of the Criminal Code and s. 218 of the Highway Traffic Act.
Issue 2 – The jurisprudence relevant to section 25 of the Criminal Code
[31] Section 25(1) of the Criminal Code establishes that if the police were justified in arresting the respondent on reasonable grounds, they were also justified in using reasonable force to do so. The amount of force that is reasonable depends on all the circumstances. As the Court stated in Nasogaluak, police officers are not required to measure force with exactitude in exigent circumstances.
[32] In his reasons for judgment the deputy judge cited only two reasons why the actions of the police in arresting the respondent were unjustified and excessive in the circumstances. First, the respondent was being stopped and arrested merely for violations under the Highway Traffic Act; there was no suspicion of criminal activity. Secondly, the police themselves posed a risk to the public by crossing Yonge Street to stop the respondent.
[33] First, with respect to the suggestion that a Highway Traffic Act offence is not sufficiently serious to justify stopping someone in circumstances where the police have reasonable ground to arrest that person – particularly in circumstances where the person seeks to escape from the police -- the decision of the Supreme Court in R. v. Macooh, 1993 107 (SCC), [1993] 2 SCR 802 is instructive. The Court recognized the value of the “hot pursuit” of a suspect who, like the respondent, had committed a traffic offence by going through a stop sign. The Supreme Court held that in such circumstances the police were justified in entering a private residence without a warrant to apprehend a suspect. At paras. 21-22 Lamer CJC stated:
21 Other reasons may be cited in support of an exception in hot pursuit cases to the principle of sanctity of the home. As La Forest J. pointed out in Landry, in a case of hot pursuit the police officer may have personal knowledge of the facts justifying the arrest, which greatly reduces the risk of error. Flight also usually indicates some awareness of guilt on the part of the offender. Then too, it may often be difficult, even if that was not the case here, to identify the offender without arresting him on the spot. And evidence of the offence leading to the pursuit or a related offence may be lost; in the present case, for example, when the accused was apprehended, it was found that there was evidence of impairment. Finally, the offender may again flee or continue to commit the offence and the police cannot be required to keep an indefinite watch on the offender's residence in case he should decide to come out.
22 In short, the basis for this exception is common sense, which is opposed to the offender being able to escape arrest by fleeing into his home or that of a third party. This is why if an arrest without a warrant is permissible at the outset, the offender's flight into a dwelling house cannot make it unlawful. The entry of the police in hot pursuit is then perfectly justified.
[34] As in Macooh, an arrest without warrant was permissible at the outset in the circumstances of this case. Therefore, it seems to me that the fact that the respondent has committed an offence under the Highway Traffic Act does not estop the police from pursuing, stopping and arresting the respondent. On the contrary, the reasoning of the Supreme Court suggests that the action of the police in engaging in hot pursuit of the respondent who was trying to escape was justified because they were authorized to arrest the respondent at the outset. In my view the deputy judge was in error in relying on the fact that only an offence under the Highway Traffic Act was in issue in determining that the conduct of the police in arresting the respondent was unjustified or that the force was undue or excessive.
[35] Second, the deputy judge referred to the police action in crossing Yonge Street and the subsequent stopping of the respondent on the roadway as a basis to conclude that the police used unjustified and excessive force. On this issue I agree with the appellants’ position: any risk to the police or third parties is irrelevant to the justification analysis required by s. 25(1) of the Criminal Code, and the risk of harm to the respondent should have been incorporated into a contextual analysis of justification under that provision.
[36] In my view the key circumstance that the deputy judge should have considered was that the respondent was attempting to escape from police officers who had the lawful power under s. 218 of the Highway Traffic Act to arrest her without warrant in a situation of urgency. Recall P.C. Sarjoo’s testimony that no reasonable alternative presented itself except to stop the respondent and her bicycle. Despite this evidence, the deputy judge held that the police should not have exercised their power to arrest by stopping the respondent on her bicycle. He concluded that good judgment required them to abandon the chase and call for support from an unmarked cruiser. The deputy judge went on to observe that the evidence of the appellants and the authorities submitted did not justify the appellants’ conduct.
[37] First, with respect to the suggestion of the deputy judge that the police should have called for backup from a marked police car, the appellants rely on the evidence of P.C. Balachorek. As noted above, he testified that the calling for backup from a marked police car was impractical, given the number of roads and alleyways in that area of Yonge Street and the fact that it would ordinarily take between three and five minutes for a police car to arrive. In those circumstances the respondent would likely have escaped if quick action had not been taken. The deputy judge referred to this evidence in his summary of the facts, but evidently was of the view that it did not support the appellants’ position.
[38] Second, although the deputy judge did not make specific reference to any of the appellants’ authorities, in my view the authorities dealing with excessive force in the context of s. 25 of the Criminal Code justify the police conduct in the present circumstances and do not support his conclusion.
[39] In Castro v. Monteiro, [2012] OJ No. 5865 (S.C.) this court accorded a significant degree of latitude to the police in assessing danger. At paras. 45 Goldstein J. stated:
… the law recognizes that the demands placed on police officers, which are multiple and sometimes conflicting, means that they must also have a very wide discretion in order to carry out their duties. The law also recognizes that police officers often have to make quick decisions based on limited information. Where situations of danger arise, or there are issues related to the safety of police officers or those whom they are duty bound to protect, the courts ought to be very careful to second-guess them.
[40] In Chartier v. Greaves, [2001] O.J. No. 634 (S.C.) to which the Supreme Court in Nasogaluak referred, Power J. outlined a number of principles relevant to the justification of the use of necessary force in s. 25 of the Criminal Code at paragraph 64:
(a) Section 25 of the Code does not apply to cases where negligence is involved.
(b) The purpose of Section 25(1) is twofold; “it absolves from blame anyone who does something that he is required or authorized by law to do and it empowers such person to use as much force as is necessary for the purse of doing it”.
(c) The onus of proving that the force used was not excessive lies on the police officers. Put another way, the onus on a plea of justification in the use of force lies on him who asserts it.
(d) A police officer is not at liberty to shirk his/her duty. If he/she does, he/she may be charged with “neglect of duty”. A police officer should, where possible, explain why an obvious alternative but less dangerous course of action was not taken.
(e) The question of whether force is excessive is a question of fact for determination upon the evidence and in the circumstances of each particular case under review.
(f) A firearm is a dangerous weapon and should be used only when necessary and only with reasonable care.
(h) Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event.
(i) “Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner:. The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman “cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course.” Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken.
(j) Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.
(k) “It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves”
[emphasis added; citations omitted]
[41] I wish only to refer to the principles in items (i) and (k) in Chartier, which in my view are particularly relevant to the circumstances of this case.
[42] With respect to the principles outlined in item (i), the deputy judge made no specific allowance for the police misjudging the degree of force required to restrain, arrest or prevent the escape of the respondent in the heat of the moment. Instead, the deputy judge held them to a standard of conduct which he determined was the best course for a prudent officer exercising good judgment. His reasons betray no appreciation that the appellants had little time to reflect calmly on how to apprehend the respondent. The appellants were in the midst of an urgent situation, with both the right and the duty to arrest the respondent for offences under the Highway Traffic Act, in circumstances where the respondent was seeking to escape. It was reasonable for the appellants to assume that she might commit further offences, having already seen her run a red light, drive erratically, and make a U-turn through four lanes of traffic on Yonge Street.
[43] Item (k) of Chartier posits that it is both unreasonable and unrealistic to expect the police to employ only the least amount of force which might successfully achieve their objective. In my view, by requiring the appellants to suspend the chase and call for backup from a marked police car, the deputy judge manifestly deviated from this principle. Moreover, the standard which he imposed on the police negates both the right and the duty of the appellants to arrest the respondent and prevent her escape. Indeed, it may have exposed both the respondent and other users of the road to danger based on the manner of her operation of the bicycle.
[44] I conclude that in the absence of any reference to s. 25 of the Criminal Code, and given the failure to apply s. 218(4) of the Highway Traffic Act, the deputy judge did not properly consider whether the police had grounds to stop and arrest the respondent and were justified in doing so. I have also sought to demonstrate that the reasoning of the deputy judge which led him to conclude that the police used force that was undue and excessive in the circumstances is flawed, because it neither conforms to established precedent nor refers to relevant circumstances. Instead, it is largely based on extraneous factors.
Issue 3 – Palpable and Overriding Error
[45] It remains to consider the respondent’s argument that this court is required to defer to the deputy judge’s finding that the police used excessive force, and may not interfere with that finding in the absence of “palpable and overriding error.” (See Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31)
[46] In this regard it is useful to refer to the decision of the Alberta Court of Appeal in R. v. Nasogaluak, 2007 ABCA 339, 2007ABCA 339. The court affirmed a sentencing decision that the suspect’s Charter rights were breached by the excessive use of police force, even though the finding of excessive force contained factual errors and made no specific reference to either s.25 of the Criminal Code or to the authorities which have considered the issue of excessive force thereunder.
[47] The deputy judge in the present case also overlooked the justification under s. 25(1) of the Criminal Code and the case law setting out the principles applicable to the consideration of excessive force under that provision.
[48] The sentencing judge found that the police officers had used excessive force in arresting a drunk driver who was trying to flee. He was particularly concerned about the third punch inflicted by one of the officers to the head of the suspect. In its analysis of the issue the Court of Appeal applied the standard in s. 25(1) of the Criminal Code stating that “the test is whether the application of force was objectively reasonable having regard to the circumstances …” and referred to the case law which holds that (i) an officer is not expected to carefully measure the exact amount of force the situation requires and (ii) as long as the circumstances justify some force, the courts will grant some leeway to police officers who must react quickly.
[49] In Nasogaluak the Crown argued that “the conclusion of excessive force was based on a misapprehension of the facts, was not supported by the evidence and was inconsistent with findings made by the sentencing judge.” The Court of Appeal found that some findings of the sentencing judge (although not all) were inconsistent with evidence on the record, but that the evidence of one officer that at least one blow to the accused was unnecessary supported a finding of excessive force.
[50] At para. 27 the Court stated:
27 Although the sentencing judge did not specifically refer to the provisions of the Criminal Code or precedent governing the use of force by police officers in the process of making an arrest and preventing the commission of further offences, it appears that he considered all the circumstances. While this is not a finding we would have made, nonetheless we cannot say that the sentencing judge committed a palpable and overriding error in concluding that [an officer] used excessive force. There is some support for the sentencing judge’s finding.
… The sentencing judge, in making his findings of fact, considered all of the circumstances, including the resistance from Nasogaluak, the extremely swift sequence of events, and the police officers’ reasonable and probable grounds to suspect Nasogaluak was intoxicated and “potentially willing to injure an officer for the purposes of escape”.
(emphasis added)
[51] In Nasogaluak, the Alberta Court of Appeal was prepared to defer to the sentencing judge’s finding of fact that the police had used excessive force even though the judge had not used the justification analysis under s. 25 of the Criminal Code, referred specifically to the relevant authorities, or correctly apprehended the evidence. In my view, notwithstanding these deficits, the court did not find palpable and overriding error because the sentencing judge had referred to the specific exigent circumstances in the case and thereby satisfied the court that he had applied the appropriate principles to facts that supported the finding of excessive force. In my view, a finding of excessive force cannot properly be made without a proper appreciation of the relevant circumstances.
[52] In the present case, the deputy judge also failed to apply the justification analysis under s. 25 of the Criminal Code in the context of s. 218 of the Highway Traffic Act. He also overlooked the jurisprudence on the issue of excessive force under s. 25 of the Criminal Code. That jurisprudence instructs that, at a minimum, the question of excessive force must be considered in the specific exigent circumstances of each case. While the reasons for judgment state that the force was “undue and excessive” the deputy judge in this case, unlike the sentencing judge in Nasogaluak, came to that conclusion without specifically considering any of the relevant exigent circumstances of this case.
[53] I agree with the appellants that the deputy judge should have considered the following exigent circumstances, all of which are supported by the evidence:
a) The officers believed that they had reasonable grounds to stop and arrest the respondent under s. 218 of the Highway Traffic Act, and the findings of the deputy judge support their view.
b) The officers reasonably believed that they had a duty to enforce the Highway Traffic Act and to investigate the respondent’s actions.
c) The officers reasonably believed that the respondent’s bicycle riding was dangerous and that they had a duty to arrest her to prevent further danger to users of the roadway.
d) The deputy judge did not consider that the respondent was actively fleeing the officers.
e) The officers needed to make a decision quickly and urgently, because the respondent would escape if they did not take immediate action.
[54] Not only did the deputy judge fail to consider the issue of excessive force, as he should have in light of all of the relevant exigent circumstances; his failure to do so, coupled with the extraneous circumstances which he did consider, led him to unreasonably and unrealistically impose an obligation upon the police to employ the minimum amount of force which might reasonably achieve their objective (see Chartier v. Greaves, supra, para. 64).
[55] In requiring P.C.’s Sarjoo and Chaudhry to abandon the chase and delegate their right to arrest by summoning the assistance of backup officers in a marked police car, the deputy judge effectively held that the officers were not entitled either to arrest the respondent or to use any force in doing so.
[56] I accept that stopping the respondent on Yonge Street on her moving bicycle is an action which may reasonably have involved some potential harm or injury to the respondent. However, there is no evidence that P.C. Sarjoo intentionally precipitated the respondent’s fall. As noted earlier, he testified that he stopped the bicycle in the manner that he did partially because he was concerned to not touch the person of the respondent in a sensitive area. In determining whether undue or excessive force was applied in stopping the bicycle, the deputy judge was required to consider the specific exigent circumstances and the available alternatives facing the police. In my view, he manifestly failed to do so and thereby fell into palpable and overriding error in finding that they used undue or excessive force.
[57] For these reasons, the appeal is allowed and the judgment of the deputy judge is set aside.
[58] In my view, the issue of excessive force has not been properly considered in terms of the justification under s. 25 of the Criminal Code or properly considered in light of the relevant authorities bearing on the issue of excessive force and in particular in the light of the relevant exigent circumstances. Accordingly, a new trial is ordered before a different judge of the Small Claims Court to address the claims against the appellants only.
[59] If the parties cannot agree as to costs the appellants may make brief written submissions (not more than four pages) exclusive of the Bill of Costs within 30 days of the release of this decision and the respondents within 30 days thereafter.
THEN J.
RELEASED: November 26, 2014
CITATION: Puricelli v. Toronto Police Services Board, 2014 ONSC 6861
COURT FILE NO.: SC-10-099874-00; Div. Ct. file No. 280/13
DATE: 20141126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
DEBORA PURICELLI
Plaintiff
(Respondent)
– and –
TORONTO POLICE SERVICES BOARD, SHAKEEL CHAUDHRY a.k.a. PC8844, KEVIN SARJOO a.k.a. PC8442, DANIEK BALACHOREK a.k.a. PC99798 and SHAWN STRILEC a.k.a. PC9261
Defendants
(Appellants)
REASONS FOR JUDGMENT
THEN J.
RELEASED: November 26, 2014