DATE: 20040123

DOCKET: C38457

COURT OF APPEAL FOR ONTARIO

GOUDGE, SIMMONS and GILLESE JJ.A.

B E T W E E N:

ROSEMARIE PEACHES McLEAN by her litigation guardian Daphne McLean, TARA HOHN, DAPHNE McLEAN, LINFORD McLEAN, LORNA McLEAN, WINSOME McLEAN, PETER McLEAN, CARLEY McLEAN, DAVID McLEAN, SANDRA McLEAN and KEVIN McLEAN

Edward Ayers and Michael D. Smith, for the appellants

Plaintiffs

(Respondents/Appellant by Cross Appeal)

• and -

Daniel V. McCarthy and W.B. Scott, for the respondents

FRANK SEISEL, JOHN CILIA, KENNETH SMITH OF 41 DIVISION OF THE TORONTO POLICE SERVICE, DAN FERADAY, DAVID BRAGG, ROGER GIBSON, JEFF PEARSON, WOLFGANG HARTIG, KENNETH RITCHIE, ROBERT BAIRD, IVAN DRAGOS OF THE EMERGENCY TASK FORCE SPECIAL WEAPONS TEAM NO. 5, DAVID BOOTHBY CHIEF OF THE TORONTO POLICE SERVICE, THE TORONTO POLICE SERVICES BOARD, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, GLENN A. CARTER, ROBERT WILHELM and ROBERT S. McKEE OF THE TORONTO FIRE SERVICES and CITY OF TORONTO

Defendants

(Appellants/Respondents by Cross Appeal)

Heard: June 18, 2003

On appeal from a judgment of Justice Norman D. Dyson of the Superior Court of Justice dated June 3, 2002, reported at [2002] O.J. No. 2195.

GILLESE J.A.:

[1] Rosemary Peaches McLean suffers from schizoaffective disorder. The disorder is controlled through medication. On a number of occasions since being diagnosed, Ms. McLean has stopped taking her medication and suffered psychotic, violent episodes that involved herself, the police and members of the public.

[2] On June 13, 1998, Ms. McLean was in her apartment. She was suffering from a psychotic episode brought on by a failure to take her medication. Toronto’s Emergency Task Force (“the ETF”) apprehended her and saw that she was taken to hospital. Unfortunately, she suffered serious damage to her left eye during the apprehension.

[3] After a fifteen-day trial, Justice Dyson reluctantly concluded that although the ETF team members were well intentioned and extremely professional, they used unreasonable force in apprehending Ms. McLean. He held that the firing of a muzzle blast gun at close range to Ms. McLean’s head when less lethal means were available and in contravention of the prescribed procedures in the ETF manual constituted negligence. He found that the cause of the injury to Ms. McLean’s eye was the firing of the gas gun. He ordered David Boothby, Chief of the Toronto Police Service, to pay damages to Ms. McLean and certain other Family Law Act claimants for the personal injuries that she had suffered.

[4] The trial judge found Ms. McLean to have been contributorily negligent in voluntarily failing to take her medication and assessed her contribution at 50%.

[5] The Toronto Police Services Board appeals on the basis that the trial judge erred in finding the ETF negligent and in finding that it had caused Ms. McLean’s injuries.

[6] In addition, the Board appeals from the judgment in which the Chief of the Toronto Police Service, David Boothby, is made liable for the damages. In the Board’s submission, s. 50 of the Police Services Act, R.S.O. 1990, c. P-15 makes the Board itself liable for torts committed by members of the police force in the course of their employment. The respondent does not contest this matter as “… there is no substantial wrong or miscarriage of justice because the Toronto Police Services Board is also a defendant and any necessary amendment can be made.”

[7] Ms. McLean cross-appeals from the trial judge’s finding that she was contributorily negligent.

[8] For the reasons that follow, apart from varying the judgment so that liability is shown to lie with the Toronto Police Services Board rather than with Chief Boothby, I would dismiss both the appeal and the cross-appeal.

BACKGROUND

[9] Rosemary Peaches McLean suffers from schizoaffective disorder. When she does not take her medication, she has psychotic episodes that have required police intervention and hospitalization. Her behaviour during these episodes includes wandering into the street and a stranger’s residence, talking to herself, lunging at a police officer with a knife, assaulting a 12-year-old girl, setting fire to her living room and attempting suicide.

[10] In the afternoon of June 13, 1998, Ms. McLean’s mother called the police and asked them to pick up her daughter because she feared that Ms. McLean was on the verge of an episode. When the police arrived, Ms. McLean told them she was fine and they left.

[11] That same evening, two police officers responded to a 911 call from Ms. McLean’s neighbour. On arrival, they learned that Ms. McLean had threatened the neighbour and the neighbour’s child with a knife.

[12] The officers, Constables John Cilia and Kenneth Smith, knocked on the door of Ms. McLean’s basement apartment. Ms. McLean asked who they were and they identified themselves. They received no further response from her.

[13] Constables Cilia and Smith notified their supervisor as well as the ETF, a specialized division that regularly handles cases of mentally ill people. Constable Smith told the radio dispatcher: “We’ve got a MI [mental illness] that won’t open the door here, she threatened the other neighbour here with some knives, she’s definitely MI, we’ve got to see if we can get into this place.”

[14] Constable Smith asked the radio dispatcher to tell the ETF to monitor the situation but not to go to the scene.

[15] Constable Cilia continued to try to establish verbal contact with Ms. McLean while Constable Smith gathered information. He learned from the landlord that Ms. McLean was mentally ill and could be violent when she was sick. Constable Smith also learned that Ms. McLean had recently tried to set fire to her apartment and had tried to commit suicide in the past. Constable Smith remembered that he himself had dealt with Ms. McLean two years earlier after a suicide attempt.

[16] Constables Cilia and Smith’s supervisor, Sergeant Frank Seisel, arrived on the scene. As the officers told him what they had learned, they could hear furniture being dragged around the apartment. Both Constable Cilia and Constable Smith testified that they were worried that Ms. McLean would try to set fire to the apartment again.

[17] The officers knocked again and called out to Ms. McLean that they wanted to talk to her. She remained unresponsive. They unlocked her door with a passkey and found that it would only open slightly because furniture was barricading it. Ms. McLean threw glass objects and dominoes at the partially open door. Constable Cilia fired tear gas into the apartment and closed the door. He testified that Ms. McLean was not affected by the tear gas fired through her front door. However, Ms. McLean testified that the spray made her choke, cough, fall to the ground and have breathing difficulties.

[18] At this point, the police decided to call in the ETF. Sergeant Seisel radioed to Constable Dragos of the ETF: “Yeah all it is it’s a MI, there’s no other than just bottles and things of that nature being used as a weapon”.

[19] An eight-person team from the ETF arrived within 10 minutes. Sergeant Gibson and Constable Dragos were the team leaders. Sergeant Seisel summarized the situation for Sergeant Gibson saying that Ms. McLean had threatened her neighbour with a knife earlier in the evening, had a history of suicide attempts and police involvement, and in the past had tried to set fire to her apartment. Sergeant Gibson passed on the information to the rest of the team by radio.

[20] The ETF team knocked on Ms. McLean’s door and called out to her but received no response. They then opened the door with the passkey. Objects came flying at them from inside. One of the officers fired a round of tear gas into the apartment at which point Ms. McLean stopped throwing objects at the officers.

[21] The members of the ETF team entered the apartment and discovered that Ms. McLean had gone into the bathroom at the back of the apartment. Sergeant Gibson testified that he called out to her continuously as the officers moved through the apartment, identifying himself by name, and reassuring her that they did not want to hurt her. Ms. McLean could be heard talking to herself, but she did not respond to the officers. The apartment was in complete disarray.

[22] The ETF officers inside the apartment did not want to burst through the bathroom door for fear that the door would hit Ms. McLean as they opened it or that she would attack the first officer who went through the door. Sergeant Gibson and Constable Dragos discussed the option of firing tear gas into the bathroom through the outside window to distract her so that the officers could enter the bathroom and apprehend her.

[23] Constable Dragos took a muzzle blast gas gun from his vehicle and went around the back of the building, removed the window screen and slid the window open. As the window was at ground level, Constable Dragos was down on one knee with his face at the window.

[24] Constable Dragos could see Ms. McLean sitting on the toilet almost directly opposite the window and just a few feet away from him. She was facing the door. Constable Dragos could only see Ms. McLean’s face and upper body. Her arms were moving in a rubbing motion. He could not see her hands. Ms. McLean did not notice him. He did not try to make contact with her because he did not want her to know he was there.

[25] After a quick assessment, Constable Dragos radioed to Sergeant Gibson that he could safely fire a muzzle blast into the bathroom. Then he fired through the bathroom window. Constable Dragos testified that he aimed toward the ceiling above Ms. McLean and to his left, toward the door. He chose this angle so that Ms. McLean would have to move away from the door to escape from the gas. This would allow the rest of the team to burst through the bathroom door safely.

[26] The bathroom was less than five feet wide. When Ms. McLean sat on the toilet, her head was less than three feet from the muzzle of the gas gun.

[27] After the muzzle blast shot, the ETF team entered the bathroom, apprehended Ms. McLean and took her to the ambulance attendants so that she could be taken to hospital. The ambulance attendant who put Ms. McLean on the stretcher noted that she had a large bruise on her left eye. The evidence relating to the injury to her left eye is considered more fully below in the section on causation. She is now legally blind in her left eye.

[28] The final shot of tear gas was dispensed by Constable Dragos from a gas gun known as a 37mm muzzle blast. This weapon is used to incapacitate people temporarily in conditions where less than deadly force is necessary. When fired, the muzzle blast makes a sound similar to a shotgun, which disorients suspects briefly and gives the ETF time to approach and apprehend the person. The Toronto Police Services Manual says that the tear gas gun may be used “[w]hen all options have been totally exhausted and negotiations have completely broken down”.

[29] At one point, the muzzle blast gun was used primarily for riot control. At that time, the policy was that it was not to be fired directly at individuals. In 1995, the manufacturer changed this safety policy so that the gun could be fired directly at individuals at waist level. The Toronto Police Services Manual states that the gun should be aimed only at the abdominal or chest area and has a maximum effective range of five to fifteen feet.

[30] Sergeant Gibson and Constable Dragos testified that throughout the incident they felt a sense of urgency. They thought Ms. McLean might be armed and had to be treated as a risk to herself and to them. They knew about her violent history and that she was in the midst of a psychotic episode. They knew that she had had a knife in her hands earlier that night and they never saw her clearly enough to know for certain whether she was still armed. However, at no time did they or any other police or ETF officer see Ms. McLean with a knife.

THE EXPERT EVIDENCE

[31] At trial, Michael Hargreaves and Robert Seaton gave expert evidence on behalf of Ms. McLean. Staff-Sergeant Craig Roberts gave expert testimony for the ETF. Staff-Sergeant Peter Button was called by the ETF to testify about the information available to the Toronto Police Service at the time of the incident in relation to muzzle blast guns and use-of-force options. Although not called as an expert witness, his qualifications and the gist of his testimony are set out in this section for ease of reference.

[32] The experts disagreed about whether Ms. McLean posed a physical threat to anyone when she was in the bathroom, whether the ETF should have attempted further mediation before firing the muzzle blast into the bathroom, and, whether there were less lethal ways to enter the bathroom and apprehend Ms. McLean.

Michael Hargreaves

[33] Michael Hargreaves is a firearm tactics instructor and former firearms salesperson whose expertise is weapon safety, particularly for security personnel and police. He has been a full-time, licensed professional firearms and tactics instructor since 1981. He has taught approximately 500 students a year for each of the past twenty years. He instructs on the use of rifles, submachine guns, pistols, revolvers and shotguns. Since 1982 he has been a member of the International Association of Law Enforcement Firearms Instructors. He is also a member of numerous other related organizations, has taken courses in the area of firearms, and has been qualified as an expert witness in other cases.

[34] The trial judge qualified Michael Hargreaves as an expert in the handling and safe use of firearms, the tactical approach to dealing with situations of stress, and the reconstruction of the incident involving Ms. McLean.

[35] Mr. Hargreaves recreated the scene in accordance with the testimony of Constable Dragos. He used the following dimensions: the distance from the bathroom window to the wall opposite that window was just under five feet; the distance from the tip of the muzzle blast gas to Ms. McLean’s eye was approximately 30 centimetres; and the windowsill was approximately 8 inches from the ground.

[36] Mr. Hargreaves testified that a manufacturer’s warning as to how a weapon should be used is very important, and that in this case, the part of the warning on the muzzle blast that was most important was the part that cautioned against firing directly at persons as serious injury or death might result. Mr. Hargreaves stated that the distance a person is from a gun is an important factor in determining when to use it because the person who is the target may move: when firing something close to a person, unless they are immobilized prior to firing, there is no control on what they might do in the time between making the decision to fire and the firing of the weapon. The average lag time between a person’s movement and response to that movement is two or three-tenths of a second.

[37] In this case, the manufacturer’s warning said that the muzzle blast should be used at a distance of 25 to 30 feet. The ETF operational manual, however, stated that the maximum effective range for the muzzle blast is 5 to 15 feet. Mr. Hargreaves explained the disparity between the two warnings by noting that the ETF developed its own training program without being trained by the manufacturer.

[38] Mr. Hargreaves acknowledged that he has never fired a muzzle blast himself, nor has he witnessed a muzzle blast dispersion being employed. However, he has seen many films on it. He explained that the muzzle blast contains a type of powder with cardboard wadding in front of it.

[39] According to Mr. Hargreaves, distance is important not only in terms of providing time to react to surprise movements by the target, but also because without enough distance between the muzzle blast and the target, the target could be hit with the tube of powder or the nose-piece of cardboard. In this case, Mr. Hargreaves felt that the distances were so small that the chance of someone in Ms. McLean’s position being struck by the wadding was so great that to fire that weapon through the window was inappropriate and dangerous.

[40] Mr. Hargreaves further testified that in his opinion, the ETF did not need to distract Ms. McLean in this case, and had they felt the need to distract her, they could have done so in other ways. According to Mr. Hargreaves, Constable Dragos should have told his teammates where Ms. McLean was located and what she was doing, and the team should have simply overtaken her. Mr. Hargreaves felt that this would not have endangered the officers because Ms. McLean would not have had much reaction time, and the officers are very fit.

[41] Mr. Hargreaves explained that time frames are based on time of motion and distance. In this case, Ms. McLean was nine inches away from the bathroom door. Had the ETF opened the door, by the time Ms. McLean turned her head to look towards the door, the ETF would have reached her.

[42] In cross-examination, Mr. Hargreaves acknowledged that in the 1990s, the manufacturer of the muzzle blast changed its view as to the appropriate use of the gun. Mr. Hargreaves also acknowledged that his recreation of the scene differed from the evidence of Constable Dragos in that in Mr. Hargreaves’ recreation he pointed the gun directly at Daphne McLean’s eye[^1], whereas Constable Dragos aimed above the head of Ms. McLean. Mr. Hargreaves acknowledged that if Constable Dragos aimed as he described, and if Ms. McLean had not moved, Constable Dragos would not have hit Ms. McLean.

[43] Mr. Hargreaves also acknowledged in cross-examination that he has never been a tactical officer or trained a tactical squad. He further recognized that he has not instructed ETF personnel in a formal sense, and that his experience in dealing with those with mental illnesses was limited to his role as a doorman at his father’s pub. However, he maintained that the tactical approach to be used in a dangerous situation regularly comes up in teaching police tactical units and firearms instructors.

Rod Seaton

[44] From 1976 to 1985, Rod Seaton was a member of the Metropolitan Toronto Police Force where he was a fitness and self-defence instructor at the Toronto and Ontario Police Colleges. He also co-authored “Self-Defence: Armed and Unarmed Tactics”, armed tactics referring to the baton and unarmed tactics referring to boxing and karate moves simplified and adapted for police use. During this time, Mr. Seaton was also the team leader of a tactical team at the ETF; he was with the ETF for close to three years. He testified that during his time with the ETF he had training with respect to the use of a muzzle blast. This training took place in the context of a two-to-three week preparation time provided when a person joined the ETF, and consisted of training about weapons, how to strip and clean them, their function, and what weapon to use on entry and containment. Mr. Seaton had the opportunity to shoot the 37 millimetre gas gun in training but never did so on call and was never on call when someone else did so.

[45] From 1986 to 1999, Mr. Seaton was part of the Ontario Provincial Police during which time he was a “use-of-force” instructor at the Ontario Provincial Police Academy. He did not teach about the use of firearms, but taught unarmed self-defence, gun retention, handcuffing, searching and use of the baton.

[46] Since 1999, Mr. Seaton has operated a collision reconstruction consulting firm where he is the principal.

[47] In the past, Mr. Seaton has been retained to review use-of-force options in regard to s. 25 of the Criminal Code. He consults on police shootings and on the use of force for police agencies. He has been retained by the Crown as a consultant in both civil and criminal matters.

[48] Mr. Seaton is a member of the Canadian Association of Technical Accident Investigators and Reconstructionists. In 1993 he took a five-week training program that dealt with the skills involved in a tactical team and their functioning. He has given evidence in Ontario courts as a reconstruction expert since 1994. He has given lectures in the area of collision reconstruction. He founded the Annual National Convention for the Canadian Society of Forensic Sciences in Hamilton.

[49] Mr. Seaton has not been involved in any tactical operations since 1985. He has shot a muzzle blast less than twenty times and has conducted no scientific investigation into the use of the muzzle blast. The training he received when he joined the ETF dealt with the use of weapons generally but not specifically of muzzle blasts. He acknowledged that much has changed for tactical units in the last nineteen years, and that when he was trained nineteen years ago, he did not receive training in dealing with emotionally disturbed people, which he would have to receive today in order to return to the ETF.

[50] Robert Seaton was qualified to offer expert opinion evidence about the reconstruction aspects of the case and the use of force.

[51] Like Mr. Hargreaves, Mr. Seaton gave evidence with regard to the discrepancy between the manufacturer’s instructions and the instructions contained in the ETF manual regarding use of the muzzle blast. He noted that while the discrepancy between the two instructions is distance, both the manufacturer and the ETF have identified that the point of aim for the muzzle blast is to be directed below the neck and head areas in order to prevent injury to the eyes or face.

[52] Mr. Seaton testified that in his opinion, given Ms. McLean’s position relative to the point of aim and proximity to the end of the barrel of that weapon, she was in a precarious and dangerous position, that the time spent from the time the first tear gas round was discharged to the second was very short, and there was no indication that Constable Dragos, who had visual observation of her, made any attempt to mediate the problem verbally prior to discharging the tear gas.

[53] In Mr. Seaton’s opinion, it was not appropriate at that time for Constable Dragos to have fired the muzzle blast through the window. In his opinion, he should have attempted mediation or some other method of distracting Ms. McLean, such as having a conversation with her. Alternatively, Mr. Seaton opined that the ETF should simply have burst into the bathroom. He acknowledged that there would have been an element of risk involved in using the last mentioned alternative.

[54] Mr. Seaton acknowledged that the manufacturer of the muzzle blast has stated that it is appropriate to fire a muzzle blast over someone’s head and let the tear gas settle down on them. He also acknowledged that if the evidence of Constable Dragos was accepted, the tear gas would have settled on Ms. McLean’s head as described. He refused to describe the situation as volatile because the bathroom door was shut and Ms. McLean was being visually observed.

Craig Rogers

[55] Staff-Sergeant Craig Rogers is currently employed with the York Regional Police. At the time of trial, he had been a member of that force for over 24 years. He began working with the York Regional Emergency Response Unit (ERU) in April of 1986. The ERU performs essentially the same service as the ETF.

[56] After being with the ERU for two years, Staff-Sergeant Rogers was elected team leader. As team leader, he coordinated training activities for ERU officers. He also acted as unit commander when the unit commander was not present. Staff-Sergeant Rogers was promoted to Sergeant in 1991 and to Staff-Sergeant in 1997. In March 2001, he assumed command of a platoon of officers. Currently, he is a negotiator with the ERU, rather than a tactical commander.

[57] Over the last fifteen years, Staff-Sergeant Rogers has attended at approximately 800 tactical response calls, some of which involved emotionally disturbed persons who were armed and barricaded. He has participated in the Ontario Tactical Advisory Board, first as Vice-Chair and then as Chair. While filling those roles, he was involved in establishing standards for tactical response teams. These standards eventually became regulations to the Police Services Act, R.S.O. 1990, c. P-15 in January 2001. Beginning in 1996, Staff-Sergeant Rogers served on the Ontario Board of the Tactical Standards Development Process. This panel’s goal was to develop tactical standards further, which standards were to become part of the regulations to the Police Services Act, supra.

[58] Staff-Sergeant Rogers has instructed in basic tactical orientation courses. Part of the instructions he gave in these courses involved the use of muzzle blasts. As Chair of the Ontario Tactical Advisory Board he oversaw and appointed course administrators and ensured the courses were in accordance with course training standards.

[59] Since 1986, Staff-Sergeant Rogers has been a member of the National Tactical Officers’ Association, an organization that shares information among, offers conferences for and provides materials to, police tactical response teams. He has been a member of the Canadian Critical Incident Association, which deals more specifically with incident command and crisis negotiation, for approximately seven years.

[60] Staff-Sergeant Rogers has taken a number of tactics and rescue orientation courses. He took a chemical munitions instructors course that included instructions on how to use the muzzle-blast weapon. He was trained in two uses of the muzzle blast: (i) how to use the muzzle blast as a means of crowd control and (2) how to use it as a tactical response. As part of the training regarding the latter use, they were taught to use the muzzle blast at a distance of five to fifteen feet.

[61] Staff-Sergeant Rogers has won a civilian citation award, the Police Officer of the Year award in 1985 and the Meritorious Service Award in 1995.

[62] Staff-Sergeant Rogers was qualified by the court to give expert opinion evidence with respect to the operation and training of tactical units, the appropriate use of force, and the training and deployment of chemical munitions.

[63] Staff-Sergeant Rogers gave the opinion that the choice of the muzzle blast 501 cartridge was a viable option as it was not fired directly at an individual and it was used in conjunction with tear gas. He testified that, in his opinion, the situation with Ms. McLean could not have been resolved through negotiation because there was no dialogue between the officers and Ms. McLean. Further, Ms. McLean would have been classified as high risk because she was not using any mechanism to try to get the situation to end.

[64] Staff-Sergeant Rogers explained that, in his experience, the muzzle blast gun is an effective, less-lethal means to apprehend and subdue violent persons that are or may be armed with weapons other than firearms. He explained that in order to err on the side of caution, it is important to assume that there is a weapon present in a situation such as the one with Ms. McLean.

[65] Staff-Sergeant Rogers explained, in his report, that although the manufacturer’s label on the 37 millimetre muzzle blast munition indicates otherwise, the munition is utilized by most tactical teams in Canada and the USA by means of contact on the subject. He stated that the muzzle blast is generally used in a range of between five and fifteen feet and is applied directly to the centre of the body.

[66] When asked about Constable Dragos’s decision to use the muzzle blast in the circumstances involving Ms. McLean, Staff-Sergeant Rogers explained that he would not have had any concerns about possible injury to Ms. McLean where a munition was aimed in the fashion Constable Dragos described. With regard to Ms. McLean’s injuries, Staff-Sergeant Rogers testified that in his opinion, if she had been hit in the face at the range suggested, he would have expected to see much more significant injuries in the face area. With regard to Constable Dragos’s testimony that his view into the bathroom was obstructed because of the cloud of dust created after discharge of the munition, Staff-Sergeant Rogers testified that this testimony was consistent with the muzzle blast travelling to the ceiling, being disseminated there, and bouncing off the walls.

[67] Staff-Sergeant Rogers felt that there were advantages to using the muzzle blast in the situation involving Ms. McLean: the officer using the muzzle blast can direct where he or she wants the agent to go and where he or she wants it to be disseminated. Also, the munition would act as a distraction. Staff-Sergeant Rogers felt that injury would likely have resulted to Ms. McLean even if the ETF had simply burst into the bathroom, because they would have had to overcome her. He also explained why use of the muzzle blast was a better choice than the use of a taser, baton or 517 munition.

[68] Staff-Sergeant Rogers agreed that attempting to establish contact with the suspect in a situation such as the one involving Ms. McLean is very important, and that he probably would have tried calling Ms. McLean by telephone had he actually been at the scene in issue. He agreed that while in the bathroom Ms. McLean posed no threat to the police officers. He acknowledged that an average barricaded-suspect situation goes from three to six hours.

Peter Button

[69] Peter Button is a member of the Toronto Police Service where he currently serves as an armament officer. He joined the Toronto Police Service in 1975 and worked as a uniformed constable for nine years.

[70] In 1984, Staff-Sergeant Button was promoted to Sergeant. He served for two years as a uniform supervisor in that capacity. In 1986, he was selected for service with the Special Weapons Team of the Metropolitan Toronto Police ETF. He held this position for approximately seven and a half years. Six of those seven and a half years were spent engaged as Sergeant or Team Leader on the Special Weapons Team, attending to the resolution of approximately 300 high-risk calls and high-risk warrant services. For the other year and a half with the ETF, Staff-Sergeant Button served as the training officer where he was in charge of firearms and tactical training and involved in approving, setting and maintaining standards. He was also responsible for the preparation of written manuals and the design and evaluation of training.

[71] In 1993, Staff-Sergeant Button transferred to the Toronto Police College as supervisor in the firearms and tactical training section. He held this position for approximately one year where he was again in charge of firearms and tactical training.

[72] In 1994, Staff-Sergeant Button was promoted to Acting Staff-Sergeant, and appointed as a service armament officer. As an armament officer, he is responsible for approving, setting and maintaining records of firearms and tactical training qualifications for the Police Service.

[73] While with the ETF, Staff-Sergeant Button had considerable experience with the muzzle blast. He has used the weapon approximately 100 times in training, has seen it used operationally approximately twenty times, and has personally used it during an operation approximately five times.

[74] According to Staff-Sergeant Button, the thirty-seven millimetre blast dispersion cartridges have been available since the inception of the ETF in 1967. It was first used directly on a subject in 1979, when it was fired directly at an emotionally disturbed person at close range; in that case, the subject was successfully incapacitated without injury to himself or other persons.

[75] Staff-Sergeant Button explained that the blast dispersion cartridge is a payload of talcum powder and C.S. gas in a powdered form; therefore, what is fired is not a solid projectile. C.S. gas is a type of tear gas. According to Staff-Sergeant Button, the powder that is ejected from the muzzle blast weapon is yellowish-white in colour and the cartridge has a priming system in the bottom to indicate ignition. When the cartridge is fired, the primer is struck by the firing pin of the thirty-seven-millimetre gas gun and detonates the gunpowder. The gunpowder is covered by a cardboard wadding charge, and on top of that wadding charge is the payload, the blast dispersion contents, thirty-eight grams of talcum powder and the active ingredient C.S. This is all sealed in the canister with a cardboard wad or wads at the top.

[76] Staff-Sergeant Button explained that when the weapon is fired, the cardboard wads go where the weapon was pointed. However, Staff-Sergeant Button further explained that as the cardboard wads travel farther, by which he meant about three or four feet, there could be deflection. Staff-Sergeant Button explained that the situation involving Ms. McLean is the only case of which he is aware in which the subject individual complained of injury as a result of the application of the muzzle blast weapon.

[77] Staff-Sergeant Button conducted part of the research in the area of less lethal weapon technology that was included in the Use of Force Committee Final Report, produced in May of 1998. As Staff-Sergeant Button explained, ‘less lethal’ is a concept that utilizes planning, tactics, and unconventional equipment, in an effort to resolve critical incidents in a manner that is less likely to cause serious injury or death than conventional police tactics and weapons. An example of a less lethal weapon would be the C.S. blast dispersion. In his section of the report, Staff-Sergeant Button was attempting to fulfill the overall mandate of the committee, which was to identify and investigate any method that might be useful in reducing the use of force, especially the use of deadly force, by the police.

[78] In his discussion of less lethal weapons, Staff-Sergeant Button explained in his report that the weapon must stop threats reliably and must incapacitate the subject instantly. According to Staff-Sergeant Button, instant incapacitation is important because any time lapse between the application and the effect of a weapon is a danger, especially when the officer is in close range to the subject. This is because during any sort of time lapse between application and effect the subject can react violently. Also, ideally a less lethal weapon would be effective on subjects who Staff-Sergeant Button described as “highly motivated”. “Highly motivated” subjects include emotionally disturbed persons who, as mentioned, often have higher pain thresholds than other people when agitated.

[79] Staff-Sergeant Button testified that of the police tactical teams in North America that have been properly equipped, the vast majority would have blast dispersion cartridges in their inventory. He further testified that most tactical teams would use the muzzle blast in a similar fashion to the ETF, namely by direct application to an individual.

[80] As explained by Staff-Sergeant Button, there are three primary uses for tear gas: crowd control, to cause barricade-penetrating projectiles to induce surrender, and direct application on a suspect armed with a non-firearm weapon. The added advantage of a muzzle blast, according to Staff-Sergeant Button, is the flash and bang that occur on detonation, which causes some subjects to become disoriented. However, according to Staff-Sergeant Button, one disadvantage of tear gas is that it permeates the area in which it is released, requiring anyone operating in the area to wear a gas mask.

[81] Staff-Sergeant Button told the court that ETF members work ten-day cycles: this involves three days of training and seven days of operations. Staff-Sergeant Button explained that many less lethal tools require teamwork to employ them properly. When employing the muzzle blast, two officers approach within ten to fifteen feet of the subject, armed with muzzle blasts. Two more officers, who are armed with lethal force in case the muzzle blast is ineffective, follow behind.

[82] According to Staff-Sergeant Button, the role of the tactical team is to support front line uniform investigative personnel who do not have the training or equipment necessary to guarantee successful resolution of situations such as the one involving Ms. McLean through low levels of force. As Staff-Sergeant Button put it: “…tactical teams exist to save lives.” Staff-Sergeant Button noted that encounters between police officers and emotionally disturbed persons have gone up considerably in the last ten years.

[83] Staff-Sergeant Button agreed, in cross-examination, that negotiation and mediation are a “key” part of resolving tense situations and persuading barricaded subjects to surrender. He agreed that negotiation and mediation would be the “least lethal” means of resolving a dispute. He explained that ETF officers receive extensive training in negotiation. While maintaining that ETF officers are trained to attempt negotiation and mediation with an emotionally disturbed person only in certain circumstances, he agreed that the vast majority of calls to the ETF are resolved purely through negotiation and surrender. According to Staff-Sergeant Button, negotiation is not appropriate where there is a risk that an emotionally disturbed person may harm him or herself, or others. Staff-Sergeant Button explained that generally, the sergeant in charge of the team decides when negotiation must end and further action must be taken.

[84] Staff-Sergeant Button agreed that the percentage of situations in which the muzzle blast is employed is very low. In terms of alternatives, the ETF has used tasers for approximately a year. Also, Staff-Sergeant Button noted that as alternatives to the muzzle blast, tear gas can be administered through a twelve-gauge shotgun or a grenade.

[85] When asked about the manufacturer’s instructions with regard to the muzzle blast, Staff-Sergeant Button testified that while those instructions are important, the Toronto Police Service had used both experience and innovation to come up with a different use for the muzzle blast, namely one-on-one applications to potentially dangerous persons. Staff-Sergeant Button explained that the current ETF manual states that the muzzle blast should be fired at belt level, and cautions that if it is fired at a suspect’s face, the suspect could be blinded or suffer severe facial injuries from the flash or muzzle blast round. Staff-Sergeant Button agreed that it is very important for an officer firing the muzzle blast to make sure it does not hit someone in the face, particularly where the officer is in close proximity to the subject. Staff-Sergeant Button testified that the muzzle blast is more dangerous than pepper spray, and is appropriate in situations involving a subject who has a non-firearm weapon.

[86] Staff-Sergeant Button explained that ETF officers have hand-held shields for ballistic protection from firearms. He further explained that the shields are generally effective against handguns and shotguns, but rifle rounds generally penetrate them. The shields are about three feet in height and two and half feet in width, and often weigh thirty-five to forty pounds. Staff-Sergeant Button agreed that the shields are sometimes used to “takedown” a subject.

[87] In response to a request for clarification by the trial judge, Staff-Sergeant Button explained that because the muzzle blast is a pyrotechnic device, there is a certain amount of gunpowder in the cartridge. For this reason, when it is fired there is some flame approximately a foot and a half from the barrel. According to Staff-Sergeant Button, if a subject was injured by the flash of a muzzle blast, as opposed to the gunpowder, he or she would suffer burns. Staff-Sergeant Button described that a blast from a blast dispersion gun would come out initially in a fairly dense stream, like a garden hose, when it is turned down to its “narrow function”. He added that at a distance of two or three feet, dissemination occurs and a large cloud forms.

THE TRIAL DECISION

[88] At trial, the judge found that the muzzle blast gun is potentially a very dangerous weapon, especially when fired at close range. The trial judge noted that all defence witnesses conceded that the gas gun should not be aimed at a suspect’s face as to do so would probably result in serious injury.

[89] The trial judge said this in finding the ETF liable:

In my view, the firing of the second muzzle blast into the bathroom was unreasonable, unnecessary, excessive and constitutes negligence on the part of the police. I find the police negligent in using the muzzle blast weapon when less lethal means were available. Further, I find that the police knew or ought to have known that by firing the muzzle blast at such close range serious personal injury was probable. Also, I find that the police were negligent in failing to follow the prescribed procedure outlined in their own manual with respect to mediation.

[90] The trial judge concluded that Ms. McLean’s eye injury was caused as a result of the muzzle blast discharge in the bathroom. He awarded Ms. McLean damages for pain and suffering, permanent physical injury, loss of sight in the left eye, disfigurement and psychological trauma. He also awarded damages to her mother, sister and daughter for temporary loss of her companionship and guidance due to the Post-Traumatic Stress Disorder that Ms. McLean suffered after the incident.

[91] The trial judge found Ms. McLean contributorily negligent due to her non-compliance with her drug regimen prior to the incident. He found that she knew or ought to have known that she experiences psychotic episodes when she does not take her medication and that her episodes create a risk of harm to others. He further found that Ms. McLean’s episodes are precipitated by a conscious decision on her part to discontinue drug therapy. He assessed her liability at 50 percent.

THE ISSUES

[92] The appellants raise the following three issues:

1. Did the trial judge err by ignoring or misapprehending critical liability evidence?

2. Did the trial judge err in admitting the opinion evidence of Mr. Seaton and Mr. Hargreaves?

3. Did the trial judge err in finding that the muzzle blast caused the injury to Ms. McLean’s left eye?

ISSUE #1: Did the trial judge err by ignoring or misapprehending critical liability evidence?

[93] The appellants argue that the trial judge erred by ignoring most of the evidence that was presented that was favourable to them, including evidence on the appropriate standard of care and the lack of reasonable alternatives to the tactics employed by the appellants. They submit that it was “decidedly incumbent” upon the trial judge to state his reasons for ignoring or rejecting such evidence. The main case they cite for this proposition is Phillips v. Ford Motor Co. of Canada Ltd. (1971), 2 O.R. 637 (CA), which was followed in Westco Storage v. Inter-City Gas Utilities Ltd., [1984] 4 W.W.R. 289 (Man. C.A.).

[94] The case law indicates that where a trial judge fails to address the evidence of a witness, this in and of itself is not grounds for overturning the trial judge’s decision; to say that it is “decidedly incumbent” on a trial judge to give reasons for rejecting the evidence of a witness in every case is to overstate the obligation.

[95] It is always preferable for a trial judge to give reasons for rejecting the evidence of a witness, but where he or she fails to do so, this failure is only significant in that it may indicate an error on the part of the trial judge in coming to the conclusion he or she reached. Therefore, the question in this case is not whether it was “decidedly incumbent” upon the trial judge to give reasons for rejecting the evidence of Staff-Sergeants Rogers and Button; rather, the question is whether the trial judge erred in reaching the conclusion he did.

[96] In this case, the issue for the trial judge was whether the ETF used unreasonable force in apprehending Ms. McLean. In deciding this issue, the trial judge had to determine whether the discharge of the muzzle blast gas gun into the bathroom was reasonable and necessary in the circumstances. He concluded that it was not and that the act constituted negligence.

[97] As the Supreme Court of Canada recently stated, a determination of whether the appellants met the standard of care involves the application of a legal standard to a set of facts; this is a question of mixed fact and law and is subject to the standard of review of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 37.

[98] I cannot accept the appellants’ contention that the trial judge made an error in principle by ignoring critical liability evidence. I accept that the trial judge relied upon the expert evidence led by the respondents and that nowhere in his reasons does the trial judge expressly advert to the evidence of Staff-Sergeants Rogers and Button. That said, it is implicit that he rejected their evidence where it conflicted with that given by the respondents’ experts and, for the reasons given in the following section, the trial judge was entitled to rely on the expert evidence adduced by the respondents. Preferring the evidence of an expert on a certain point is not necessarily tantamount to ignoring the conflicting evidence of another. In this case, a reading of the reasons as a whole shows that the trial judge implicitly rejected the evidence of the appellants’ experts on the issues of whether the use of the muzzle blast gun was reasonable and necessary in the circumstances. While it would have been preferable had the trial judge explained why he rejected the expert evidence led on behalf of the appellants, the implicit rejection of the appellants’ expert evidence cannot be said to be an error in principle where the trial judge’s determinations are otherwise supportable on the evidence before him.

[99] In my view, it cannot be said that the trial judge made a palpable and overriding error in his findings of fact or in his application of the appropriate legal standards to the facts. The trial judge found that at the time of the second firing of the muzzle blast gun, Ms. McLean was not a physical threat to herself or the ETF. The evidence on the record supports such a conclusion. Ms. McLean was locked in a tiny bathroom that was surrounded by armed police officers. She was being directly observed by Constable Dragos through an open window at a distance of approximately three feet. She could be seen to be rubbing something over her face and body. The ETF did not observe Ms. McLean to be in possession of a knife or other weapon. Very little time elapsed between the time that the ETF first fired a tear gas round (21:55 hours) to the second firing of the muzzle blast gun (22:00 hours). Other less forceful means of apprehending Ms. McLean, such as mediation, had not been tried.

[100] The trial judge was also entitled, on the evidence on the record, to conclude that firing the muzzle blast gun at such close range made serious injury probable. The evidence showed that serious injury or death could occur if a person was struck in the face by a muzzle blast. The police manual provided that the maximum effective range was between five and fifteen feet; the end of the barrel of Constable Dragos’ muzzle gun was within three feet of Ms. McLean’s face when he fired it. The small distances in the bathroom, Ms. McLean’s position in respect of the muzzle blast gun and the known dangers associated with the use of the muzzle blast gun justify the trial judge’s determination on this point.

[101] Accordingly, the first ground of appeal is dismissed.

ISSUE #2: Did the trial judge err in admitting the opinion evidence of Mr. Seaton and Mr. Hargreaves?

[102] For expert evidence to be admissible, it must be relevant and necessary, not offend any exclusionary rule, and be given by a properly qualified expert. R. v. Mohan, [1994] 2 S.C.R. 9. The appellants argue that the trial judge erred in admitting the testimony of Mr. Seaton and Mr. Hargreaves because it offended the fourth criterion. Specifically, they say that both experts lacked the necessary qualifications to give opinion evidence and that there was no reliable foundation for their opinions.

[103] The court qualified Mr. Seaton to give expert evidence about the reconstruction of the situation involving Ms. McLean, as well as on the use of force.

[104] The trial judge qualified Mr. Hargreaves as an expert in the handling of firearms and the safe use of firearms, as well as in the tactical approach to dealing with situations of stress and the reconstruction of the incident involving Ms. McLean. The trial judge acknowledged that Mr. Hargreaves had no formal training with respect to the muzzle blast gun and little formal instruction in the area of tactical approaches. He noted, however, that Mr. Hargreaves had much experience in the safe handling of weapons, had received much instruction with respect to the safe handling of weapons of all kinds, and some instruction with respect to the tactical approach to situations of stress. The trial judge concluded that when Mr. Hargreaves testified on topics where his expertise might be deficient, this would be reflected in the weight given to his testimony.

[105] The test for determining whether an expert is properly qualified to give opinion evidence was stated by the Supreme Court of Canada in R. v. Marquard (1993), 108 D.L.R. (4th) 47 at p. 78, in these words:

The only requirement for the admission of expert opinion is that the “expert witness possesses special knowledge and experience going beyond that of the trier of fact”… Deficiencies in the expertise go to weight, not admissibility.

[106] A consideration of the facts in Marquard reveals that the threshold for admissibility is not high.

[107] In Marquard, the appellant was convicted of aggravated assault on her granddaughter. The appellant claimed that her granddaughter had burned herself accidentally when playing with a butane lighter. The Crown contended that the appellant had intentionally burned her granddaughter on a hot stove in order to discipline her. At trial, one expert was called by the Crown to testify as to the characteristics of an abused child and a second expert was called to testify as to the nature or origin of the child’s burns. In the course of giving her opinion on the characteristics of abused children, the first expert expressed the opinion that the child suffered from a contact burn rather than a flame burn. The second expert expressed his opinion that the characteristics of abused children matched the description of the child’s behaviour in this case. The appellant argued that the trial judge erred in allowing the experts to testify on areas outside their expertise and in failing to instruct the jury to ignore this evidence.

[108] The Court held that although the first expert did not have specialized knowledge in the area of burns, as a practising physician she possessed an expertise on burns that is not possessed by the ordinary untrained person and therefore met the threshold test for admissibility. Similarly, while the second expert possessed no particular expertise on the characteristics of abused children, the Court was satisfied that he met the test for admissibility because his long experience working with injured children had given him a degree of expertise not possessed by lay persons.

[109] The Court acknowledged that the experts had provided opinions on matters outside of those for which they had been qualified by the trial judge to testify. However, at p. 79 it stated:

Important as the initial qualification of an expert witness may be, it would be overly technical to reject expert evidence simply because the witness ventures an opinion beyond the area of expertise in which he or she has been qualified. As a practical matter, it is for opposing counsel to object if the witness goes beyond the proper limits of his or her expertise. The objection to the witness's expertise may be made at the stage of initial qualification, or during the witness's evidence if it becomes apparent the witness is going beyond the area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness's evidence should be struck. However, if the witness is not shown to have possessed expertise to testify in the area, his or her evidence must be disregarded and the jury so instructed.

[110] The fact that another person may have been more qualified to testify on a particular topic goes to weight, rather than admissibility. See Regina v. Wade, [1994] O.J. No. 543 (CA), appeal to SCC allowed on other grounds 1995 100 (SCC), [1995] 2 S.C.R. 737. Moreover, the trial judge is entitled, when determining whether to admit expert evidence, to consider whether that evidence is necessary to rebut the evidence of an expert testifying for the other side. See R. v. Russell, [1994] O.J. No. 2934 (C.A.).

[111] The other aspect to this argument on behalf of the appellants is that there was no reliable foundation for the opinions of Messrs. Seaton and Hargreaves. The appellants point to the comments of the Supreme Court of Canada R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 at para. 29 that emphasize the trial judge’s “gatekeeping” function when considering the admissibility of expert evidence. For example, it is said that there was no reliable foundation for the opinions of Messrs. Hargreaves and Seaton, that the “burst and grab” approach advocated by Mr. Hargreaves lacks general acceptance by others in the field and that not all relevant facts were considered when Mr. Seaton came to the opinion that the ETF should have negotiated longer with Ms.McLean.

[112] I cannot accept this submission. The trial judge is obliged both to determine the admissibility of expert evidence and to decide what weight is to be given to such evidence as is admitted. If the methodology that an expert employs is flawed or the opinion is based on ignoring certain facts or lack of a reliable foundation, these are matters that the trial judge must take into consideration in deciding which evidence to accept and what weight to accord it. The admonition by the Supreme Court of Canada in R. v. J.-L.J. that expert evidence must pass a threshold test of reliability speaks primarily to the issue of novel science or the novel application of accepted science. In this case, there is no suggestion that the opinions offered were the result of novel science or the novel application of accepted science.

[113] While I accept that Staff Sergeant Rogers had superior qualifications to those of Messrs. Seaton and Hargreaves, it does not follow that the trial judge was obliged to prefer Staff Sergeant Rogers’ evidence nor to rule as inadmissible the opinion evidence of Messrs. Seaton and Hargreaves. In my view, both Messrs. Seaton and Hargreaves had some special knowledge and experience going beyond that of the trier of fact upon which they based their testimony. Any deficiencies in their expertise go to the weight and not the admissibility of their evidence. The trial judge was aware of the relative strengths in experience and background of the various experts as is apparent from the comments he made in relation to Mr. Hargreaves and which are summarized above. He expressly noted that deficiencies in expertise would be dealt with in the weight accorded to the various experts. It cannot be said that the trial judge erred in admitting the testimony of Messrs. Seaton and Hargreaves or in the approach he adopted in determining upon what evidence to rely.

ISSUE #3: Did the trial judge err in finding that the muzzle blast caused the injury to Ms. McLean’s left eye?

[114] The appellants argue that the trial judge erred in finding that the muzzle blast gun caused the injury to Ms. McLean’s left eye. A brief review of the following facts shows that the trial judge’s finding is amply supported on the record.

[115] Just before firing the gas gun, Constable Dragos had a clear view of Ms. McLean’s face. She was about three feet away from him. He saw nothing unusual about her face nor did he see any sign of injury to her eye. Within one or two seconds of firing the gas gun, the door was breached and Ms. McLean was apprehended and handed over to the ambulance attendants. All of the police officers testified that Ms. McLean did not struggle, did not fall and strike her face and was not struck in the face or eye.

[116] The ambulance attendant who put Ms. McLean on a stretcher noted that she had a large bruise on her left eye. Constable Cilia rode in the ambulance with Ms. McLean to the hospital. He prepared an injury report that stated that Ms. McLean’s left eye was swollen and cut.

[117] Dr. Sousa testified that the damage to the eye was consistent with high speed blunt trauma to the eye. It was not consistent with striking her head against a wall or being punched or struck by a sharp object. He also stated that the injury could have been caused by tear gas if the tear gas was shot like a blunt missile or by the cardboard wadding holding the tear gas. He testified that it was unlikely that the injury was caused by falling on something and that the injury was not self-inflicted.

[118] I would therefore dismiss this ground of appeal.

THE CROSS-APPEAL

[119] Ms. McLean argues that her failure to take her medication was a symptom of her illness and was involuntary on her part. She argues that she cannot be held to be contributorily negligent as the result of an involuntary act for which she could not reasonably foresee the consequences.

[120] Ms. McLean is aware that she has a medical disorder and that failure to take her medication will lead to psychotic episodes. She is also aware that she has had a number of prior psychotic episodes, brought on by a failure to take her medication, and that such episodes have led to physically violent altercations with the police and members of the public as well as threats of harm to herself. She made the decision to stop taking her medication while she was medicated and lucid.

[121] In the circumstances, the trial judge was fully justified in concluding that Ms. McLean acted voluntarily and was contributorily negligent when she knowingly stopped taking her medication.

[122] Accordingly, I would dismiss the cross-appeal.

DISPOSITION

[123] I would allow the appeal only to the extent of ordering that the judgment be amended so that it reflects that the Toronto Police Services Board, not the Chief of Police, bears liability. I would dismiss the cross-appeal. As success is divided, I would make no order as to costs.

“E.E. Gillese J.A.”

“I agree S.T. Goudge J.A.”

“I agree J.M. Simmons J.A.”

RELEASED: January 23, 2004

[^1]: Ms. McLean’s mother, Daphne McLean, served as the model in the recreation.