CITATION: Housser v. Niagara Regional Police Service, 2017 ONSC 1010
DIVISIONAL COURT FILE NO.: DC-16-718 DATE: 20170209
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
DALE HOUSSER
Plaintiff
(Appellant)
– and –
NIAGARA REGIONAL POLICE SERVICE, REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES, and SCOTT KRAUSHAR
Defendants
(Respondents)
Margaret Hoy, for the Plaintiff (Appellant)
Mickey Cruickshank, for the Defendants (Respondents)
HEARD at Hamilton: February 9, 2017
SPIES J.: (Orally)
[1] Mr. Dale Housser appeals the dismissal of his action by Mr. Justice Ramsay following a five-day trial. For written reasons released January 25th, 2016, the trial judge found that the Appellant had not proven his claims against the Defendants for damages for assault, negligence, and breach of the Charter.
[2] The Appellant has submitted that the trial judge committed numerous errors of law, fact, and mixed fact and law. To the extent errors of law are relied upon, the Appellant must establish that the trial judge’s decision is not correct. To the extent that the Appellant relies on findings of fact or mixed fact and law, he must establish that the trial judge made a palpable and overriding error.
[3] The trial judge gave extensive reasons for his decision. He carefully reviewed the evidence, including the evidence of experts called by the Appellant and the Respondents. The case was determined largely as a result of the trial judge’s assessment of the credibility and reliability of the witnesses who testified. For reasons given, the trial judge found the Appellant gave evidence that was contrived and dishonest, that the Appellant had difficulty perceiving events in a reasonable way, and that he, the trial judge, found it difficult to rely on the evidence of someone with such an unrealistic view of the world. As for the other witness called by the Appellant, the trial judge gave extensive reasons for why he did not find her evidence reliable. As for the Respondent Sergeant Kraushar and the other officer called by the Respondents, the trial judge found that the events occurred as these officers testified.
[4] Ms. Hoy, counsel for the Appellant, emphasized in her oral submissions that Sergeant Kraushar did not have operating red lights on the rear of his unmarked vehicle as found by the trial judge. Based on our review of the evidence given at trial, we are satisfied that the trial judge made an error in so finding. In fact, the lights at the rear of his car were white strobe lights. That said, we are not satisfied that this error materially affected the reasoning of the trial judge in making his findings of credibility and reliability, and his conclusion that the stop and the arrest were lawful and that Sergeant Kraushar had reasonable and probable grounds to believe the Appellant was evading police.
[5] The essence of the Appellant’s submission on liability is that Sergeant Kraushar did not have the right to stop the Appellant and that he did not have reasonable and probable grounds to arrest the Appellant for failure to stop. The power of a police officer to stop a vehicle emanates from section 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. This section provides as follows: “A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.”
[6] According to the Appellant, because Sergeant Kraushar was driving in an unmarked police car, was not in uniform and had no operating red lights, Sergeant Kraushar was not “readily identifiable” as a police officer. This was particularly the case in light of what the Appellant described as a press release which he claimed warned motorists about persons who were in unmarked cars impersonating as police officers. The trial judge considered and rejected this submission. In his view, any sensible person would have identified Sergeant Kraushar as a police officer. In coming to this conclusion, he found that Sergeant Kraushar turned on his siren and lights, that other motorists did pull over, that Sergeant Kraushar showed his badge while he was driving next to the Appellant’s vehicle and that Sergeant Kraushar did not drive erratically. These findings are entitled to deference and are sufficient to support the conclusion that Sergeant Kraushar was readily identifiable as a police officer, even without operating red lights.
[7] We agree that the contents of the press release might be relevant to a defence by the Appellant for why he did not stop, but they do not affect the correctness of the trial judge’s analysis of whether or not Sergeant Kraushar was readily identifiable as a police officer.
[8] With respect to whether or not Sergeant Kraushar had reasonable and probable grounds to arrest the Appellant for failure to stop, the Appellant submits that failure to stop is a Highway Traffic Act offence alone and carries with it no powers of arrest. We disagree. Section 249.1(1) of the Criminal Code provides as follows: “Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.” In our view, the trial judge, based on the evidence before him, was entitled to conclude as he did that Sergeant Kraushar had reasonable and probable grounds to believe the Appellant committed this offence when he failed to pull over and stop his vehicle.
[9] The trial judge was in the best position to assess the credibility and reliability of the witnesses. His findings in that regard must be given deference. We have considered the Appellant’s submissions in her factum as well. In our view, the reasons of the trial judge do not disclose that he made any palpable and overriding errors in reaching his findings on the credibility and reliability of the witnesses. Having made these findings, we are also satisfied that the trial judge made no palpable and overriding errors in the facts that he found, including his finding that the Appellant was speeding and that Sergeant Kraushar did not use excessive force.
[10] To the extent that the trial judge’s findings relied on the law, we find that the trial judge’s application of the law to the facts as he found them was correct.
[11] Finally, with respect to the trial judge’s finding on the claims for damages, there was no evidence of physical harm. As for psychological damages, the trial judge carefully assessed the evidence of each of the experts and found that they were not that far apart, but that the Appellant’s expert’s opinion suffered because of his reliance on facts the trial judge did not accept. The trial judge also considered the fact that despite the complaints of the Appellant, he was able to move to another province, establish a new career, and remarry. All of the findings of the trial judge, including his assessment of the quantum of damages had liability been established, were amply supported by the evidence.
[12] For these reasons, the appeal is dismissed.
H. Sachs J.:
[13] For reasons given orally by Spies J., this appeal is dismissed. The Respondents, as the successful parties, are entitled to their costs of this appeal. However, contrary to the Rules, they have not brought a bill of costs to support their request. In view of this and in view of the rather unusual and somewhat unfortunate circumstances that gave rise to this action, we fix the Respondent’s costs at $3,500.00 all-inclusive.
___________________________ Spies J.
I agree
Sachs J.
I agree
Stewart J.
Date of Reasons for Judgment: February 9, 2017
Date of Release: February 15, 2017
CITATION: Housser v. Niagara Regional Police Service, 2017 ONSC 1010
DIVISIONAL COURT FILE NO.: DC-16-718 DATE: 20170209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
DALE HOUSSER
Plaintiff
(Appellant)
– and –
NIAGARA REGIONAL POLICE SERVICE, REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES, and SCOTT KRAUSHAR
Defendants
(Respondents)
ORAL REASONS FOR JUDGMENT
SPIES J.
Date of Reasons for Judgment: February 9, 2017
Date of Release: February 15, 2017