Ontario Superior Court of Justice – Divisional Court

Pozniak v. Sault Ste. Marie Police Services Board

Date: 2000-10-17

Malcolm G. McLeod, for the plaintiff, appellant;

John C. Walker, for the defendant, respondent.

(421/99)

Nature of the Proceedings

[1] By the Court: This is an appeal from the decision of Pardu, J., dated September 10, 1999, wherein she dismissed the action brought against the respondent for assault, unlawful arrest and imprisonment. General damages as well as special damages in the amount of $1,095 were being sought.

Facts as found in Reasons for Judgment

[2] In August 1998, Michael Pozniak, the plaintiff's then 26 year old son, had complained to police that he had been assaulted. The police spoke to several witnesses and decided to charge Michael Pozniak himself with threatening. On August 10, 1998, Constable Sacco telephoned Michael Pozniak and told him to attend within ten (10) minutes at the police station to be arrested, and released or else police would come to his home and arrest him there.

[3] The plaintiff and her son arrived at the station at 5:57 p.m. Sacco took them into a small interview room off the lobby and left for a moment, returning with Sergeant Keating. Sacco then advised Michael Pozniak that he was under arrest for threatening. The plaintiff asked why her son was charged. Sacco told her there were six witnesses who had confirmed her son's participation. The plaintiff questioned the reliability of those witnesses and volunteered that she had relevant information.

[4] Sacco ascertained that she had not been present at the time of the alleged incident and told her that whatever she had to say was irrelevant. The plaintiff became upset. She thought that the police had not conducted an adequate investigation and that her son would not have been charged if the police had been fully informed.

[5] Keating told Sacco, "Let's just take him downstairs."

[6] Sacco left with Michael Pozniak, holding him by the arm and took him through a locked door into the "book in" room in the basement of the police station.

[7] The plaintiff followed Sacco, Keating and her son out of the office into the lobby. As her son was taken by Sacco through the locked door into a secure area of the police station, she angrily protested the charging of her son and expressed the wish to accompany her son. Her voice was raised. She took three to five steps across the lobby and loudly stated that she wished to go with her son. Keating came face to face with her and told her she could not. She made no attempt to bypass Keating to get to the secure area, nor did she make any gesture towards Keating. Keating told her to sit down and pointed to a bench along the wall. His voice was loud and firm. She refused to sit down. They moved slowly along the bench and Keating told her twice more to sit down, and finally told her for a fourth time to sit down or leave the building, pointing to the front door. According to the plaintiff's evidence, she responded immediately that she was not sitting down and was not leaving. Both were shouting by this point.

[8] Keating grabbed the plaintiff by the arm. Constable Gallagher heard and saw the commotion and came through the secure door and seized the plaintiff's other arm. She was very swiftly taken from the lobby to a cell. The confrontation in the lobby lasted no more than a minute. She was in a cell by approximately 6:00 p.m. and was released by 7:37 p.m. at the same time as her son.

Issues raised on Appeal

[9] Was the appellant unlawfully arrested for trespassing?

[10] Was the appellant unlawfully assaulted in the police lobby?

[11] Was the appellant arbitrarily detained, infringing upon her s. 9 rights under the Canadian Charter of Rights and Freedoms?

Trial Judge's findings relative to the three issues raised

[12] On this first issue, the learned judge found, that although the arrest and detention of the appellant were not justified under s. 31 of the Criminal Code, as her behaviour created no risk of personal injury or property damage, it was lawful under the provisions of the Trespass to Property Act and the Provincial Offences Act.

[13] The trial judge makes no specific findings as to whether or not the appellant was unlawfully assaulted in the police lobby area. From her conclusions however, that the arrest and detention were lawful within the context of the Trespass to Property Act and the Provincial Offences Act, it can be inferred that she also concluded that the force used in order to effect arrest was no more than necessary and therefore justified in the circumstances.

[14] On the last issue raised, the trial judge found the arrest and detention to be lawful and as well, she was unable to conclude on a balance of probabilities, that she "plaintiff/appellant" was not released "as soon as possible".

Standard of Review

[15] The test on appeal is whether or not the judge appealed from was "clearly wrong" that is to say, that he or she acted on a wrong principle or disregarded or misinterpreted material evidence.

Decision on Appeal

Issue number 1:

[16] We are all of the view that her arrest for trespassing was justified in the circumstances as found by the trial judge. There is no dispute that Michael Pozniak was properly charged and processed in accordance with usual police procedures. None of these procedures affected his rights as provided for under the Charter. During the course of her son being processed, the appellant's conduct towards the police prompted them to complete the process in a secure area in the absence of the appellant. On the facts as found by the trial judge, we are of the view, that such decision by the police was entirely reasonable in the circumstances. The findings of the trial judge disclose the police were not assaulting the plaintiff/appellant's son; he was 26 years old at the time; he was not vulnerable for any reasons such as mental deficiency or intoxication; he did not request the presence of his mother and had the opportunity to obtain legal advice. As well, she found that there was no suggestion that he was kept in communicado from his mother for coercive reasons. Finally she found that the police demand that the plaintiff/appellant leave the police station was not made to facilitate any improper behaviour towards her son.

[17] Ultimately, as found by the trial judge, the plaintiff/appellant became a trespasser under the provisions of the Trespass to Property Act, when she was lawfully asked to leave the police station and she refused to do so. As such, she became subject to arrest under the provisions of the Act.

[18] In the circumstances, we find no error in law nor in her appreciation of the facts as heard by her.

Issue number 2:

[19] On this issue, we are all of the view that s. 146 of the Provincial Offences Act authorizes the use of as much force as necessary to effect an arrest. There is no finding by the trial judge that unreasonable force was used upon the arrest of the appellant. At page 2 of paragraph 9 of her judgment, she stated the following:

"[Sgt.] Keating grabbed the plaintiff by the arm. Constable Gallagher heard and saw the commotion and came through the secure door and seized the plaintiff's other arm. She was very swiftly taken from the lobby to a cell. The confrontation in the lobby lasted no more than a minute."

[20] We cannot conclude from her findings, nor from a reading from the excerpts of the transcripts provided, that the learned judge was clearly wrong in making a finding that unreasonable force was not used.

Issue number 3:

[21] On this last issue we also agree with the findings of the trial judge that, given the appellant's conduct and express, clear and immediate comments, that she would not leave the premises when told to do so, in the circumstances, providing her with time to consider her options, clearly would not have changed her obvious intention not to leave when told to do so.

Conclusion

[22] We are all of the view that the trial judge was not clearly wrong; that she did not apply erroneous principles, disregard, misapprehend, or fail to appreciate relevant evidence.

[23] The Appeal is therefore dismissed.

[24] Costs Counsel may make representations in writing if necessary relative to costs. The defendant/respondent to do so within a period of twenty-one (21) days; the plaintiff/appellant to do so within a period of thirty (30) days. The defendant/respondent to have a further period of seven (7) days to reply. Time to commence the date of release of the within decision.

Appeal dismissed.