Court of Appeal for Ontario

Date: 2018-05-04 Docket: C64839

Panel: MacPherson, Hourigan and Benotto JJ.A.

Between

Franco Albanese Plaintiff (Appellant)

and

Adam Franklin, Robert Kish, Graeme Orr and the Original Municipality of Niagara Police Services Board Defendants (Respondents)

Counsel

Margaret A. Hoy, for the appellant

Mickey Cruickshank, for the respondents

Heard and Released Orally

May 1, 2018

On Appeal

On appeal from the judgment of Justice Alan Whitten of the Superior Court of Justice dated November 3, 2016.

Reasons for Decision

[1] The appellant brought an action against three police officers and the Police Services Board claiming damages arising out of an alleged unlawful arrest on October 14, 2006. Following eight days of evidence, the trial judge dismissed the action.

[2] The appellant appeals on the basis that: (i) the evidence did not support the trial judge's finding that he was intoxicated, belligerent and aggressive; (ii) the trial judge erred in concluding that he had caused a disturbance and the arrest and subsequent detention was without cause; and (iii) the trial judge did not properly consider the effect of the appellant's acquittal on the criminal charges arising from the incident.

[3] We do not accept these submissions.

[4] The trial judge made findings of fact based on the evidence of witnesses who testified about the appellant's conduct on the day in question. He accepted the evidence of Mr. Huber who testified that he saw the appellant bothering patrons in a Starbucks, stagger to his car and struggle with his keys. Mr. Huber offered to get the appellant a ride but was met with an obscenity in reply. Mr. Huber then approached Officer Franklin (one of the respondents) who parked his cruiser directly behind the appellant's car to stop him from driving. Officer Franklin testified that he saw the appellant weaving, unsteady on his feet and drunk. When Officer Franklin tried to approach him, the appellant pushed the officer away. The other two respondent officers arrived and ultimately subdued the appellant. All the while the appellant was yelling obscenities, aggressive and abusive. This conduct continued on the way to and at the police station where he exhibited symptoms of intoxication including bloodshot eyes, unsteadiness on his feet and the smell of alcohol. The trial judge's findings of fact that the appellant was intoxicated, belligerent and aggressive were open to him on this evidence.

[5] The trial judge applied the elements of the offence of causing a disturbance as set out in R. v. Lohnes, [1992] 1 S.C.R. 167. He concluded that the observations of Officer Franklin brought his conduct beyond mere annoyance or irritation and that the appellant was a menace to the public peace. The public interest made it necessary to arrest him and let him sleep it off. The facts accepted by the trial judge support this conclusion.

[6] The interplay between the appellant's acquittal on the criminal charges and his subsequent civil law suit was correctly dealt with by the trial judge. He relied on this court's decision in Polgrain Estate v. Toronto East General Hospital et al., 2008 ONCA 427, to conclude that the different parties and different burdens of proof meant that concerns about re-litigation are not engaged. The appellant's acquittal does not mean the fact of an unlawful arrest is a foregone conclusion.

[7] Lastly, with respect to damages, on the record there was ample evidence to support the trial judge's conclusion that the appellant was 100% responsible for any injuries he may have sustained.

[8] For these reasons the appeal is dismissed with costs payable to the respondents fixed at $12,000 inclusive of disbursements and H.S.T.

J.C. MacPherson J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.