CITATION: Water v. Toronto (Police Services Board), 2016 ONSC 7824

DIVISIONAL COURT FILE NOS.: 198/15 and 406/15

DATE: 20161214

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

MOSES WATER Plaintiff/Respondent (Appellant by Cross-Appeal)

– and –

TORONTO POLICE SERVICES BOARD Defendant/Appellant (Respondent by Cross-Appeal)

Glenn M. Stuart & David Gildiner, for the Plaintiff/Respondent (Appellant by Cross-Appeal) Rebecca L. Bush and John Hunter, for the Defendant/Appellant (Respondent by Cross-Appeal)

AND BETWEEN:

PRINCESS WATER Plaintiff/Respondent (Appellant by Cross-Appeal)

– and –

TORONTO POLICE SERVICES BOARD Defendant/Appellant (Respondent by Cross-Appeal)

Glenn M. Stuart and David Gildiner, for the Respondents/Plaintiff (Appellant by Cross-Appeal) Rebecca L. Bush and John Hunter, for the Defendant/Appellant (Respondent by Cross-Appeal)

HEARD at Toronto: November 9, 2016

C. HORKINS J.

Introduction

[1] During the evening of May 26, 2011, officers from the Toronto Police Services (“TPS”) Drug Squad and Emergency Task Force (“ETF”) attended at 4200 Kingston Road, Unit 10 (the "residence") to execute a judicially authorized search warrant. Princess Water and her son Moses lived in the residence with other family members.

[2] The search warrant authorized night time entry into the residence to allow officers to search for a .45 caliber handgun, narcotics and proceeds of crime, believed to be in the possession of Princess’ son Alpha Water, who lived at the residence.

[3] Following the execution of the search warrant, eight members of the Water family commenced actions in the Small Claims Court, seeking damages from the Toronto Police Services Board (“TPS Board”). The plaintiffs alleged that the TPS officers committed the torts of assault, battery, intrusion upon seclusion, trespass, nuisance and negligence. They also alleged breaches of ss. 7, 8, 9, 10(a), 10(b), and 12 of the Charter of Rights and Freedoms ("Charter").

[4] After a multiple day trial before Deputy Judge Richardson in January 2015, judgment was delivered on March 13, 2015. The Deputy Judge dismissed the claims of six of the eight plaintiffs in their entirety, and awarded damages to Moses Water and his mother Princess Water.

[5] Moses was awarded $15,000 in damages plus costs and interest, for injuries he sustained during the struggle with TPS officers. Princess was awarded $5,000 for trauma associated with observing Moses’ injuries and $909.56 for a door that was damaged during execution of the search warrant.

[6] The TPS Board appeals the judgments awarded in favour of Moses and Princess. Dealing with Moses, two grounds of appeal are raised. First, the TPS Board states that the trial judge erred by not applying a subjective/objective standard when assessing if the officers' use of force was reasonable. Second, it states that the Deputy Judge erred by applying hindsight when assessing the threat Moses posed to the TPS officers.

[7] Dealing with Princess, the TPS Board first states that the trial judge erred in law in awarding Princess' damages without finding the TPS Board liable to Princess with respect to a pleaded cause of action. Second, the TPS Board states that the trial judge erred in awarding damages without sufficient evidence of a compensable injury.

[8] Moses and Princess cross-appeal the dismissal of their wrongful detention and arrest claims. Both state that the Deputy Judge erred in finding that there was no unlawful detention and arrest.

[9] The evidence for the most part is the same for the four appeals. The Deputy Judge delivered one set of reasons for all claims. Therefore I will start with a review of the evidence and supplement this as required when I address each appeal.

Background to the Search Warrant

[10] On the afternoon of May 26, 2011, Detective Constable Brent Johnson ("DC Johnson") of the TPS Drug Squad received information from a confidential informant that a firearm, drugs and proceeds of crime could be found at the residence, possibly in Alpha Water’s possession. DC Johnson corroborated this information by consulting police databases showing that Alpha was before the Courts for various charges including trafficking, narcotics possession, possession of proceeds of crime and failing to comply with a court-ordered recognizance. The search into Alpha's background revealed that two other members of the Water family, Prince and Noah, were also known to police as persons possibly in possession of a firearm.

[11] During the evening of May 26, other members of the TPS Drug Squad conducted surveillance at the residence and confirmed that Alpha and an unknown number of others were inside the residence. DC Johnson then prepared an affidavit in support of a Criminal Code search warrant for the premises. A search warrant was issued by a Justice of the Peace and was valid from May 26, 9:00 PM to May 28, 9:00 PM.

[12] Uniformed TPS officers conducted a further "compliance check" to ensure that Alpha was at the residence and complying with bail conditions. It was determined that Alpha and other members of the family were present at that time.

[13] At trial, the plaintiffs conceded that the search warrant was judicially authorized and properly obtained by the TPS.

[14] The ETF was involved in the execution of the search warrant because a firearm was the focus. The Emergency Medical Services ("EMS") also attended in the accordance with ETF practice.

[15] Sergeant George Fotopoulos, the leader of the ETF team engaged in executing the search warrant, determined that the safest and most effective method to execute the warrant would be to breach the front door and call those inside to come out, rather than have officers enter the residence and detain them. Officers would enter the residence after they formed the view that that all persons responsive to their instructions had exited the residence. This process is called a "breach and hold" method of search warrant execution.

[16] At trial, the parties agreed that the "breach and hold" method of executing the search warrant was appropriate in the circumstances. The Deputy Judge accepted that this part of the ETF's approach was reasonable.

The Execution of the Search Warrant

[17] The ETF and Drug Squad arrived at the residence at approximately 11:30 p.m. The ETF officers breached the front door using a battering ram. While standing on the threshold of the doorway, officers shouted inside identifying themselves as police and that they were in possession of a search warrant. The officers also shouted commands to the occupants inside that they should move toward the sound of the officers' voices and exit the residence. Six members of the household exited without incident and were turned over to members of the Drug Squad stationed nearby.

[18] The ETF officers continued to shout commands inside the residence directing occupants to exit. When there appeared to be no further response to their commands, the ETF entered the residence to secure it, before turning it over to the Drug Squad to complete the search. This phase of the search is called "clear and secure". A clear and search is done methodically. Until the entire residence is deemed cleared and secure, the officers operate under the assumption that people are still in the house who may pose a risk to officers. In this case, the potential presence of a firearm heightened the risk.

[19] Shortly after entering the residence, ETF officers found a bedroom on the ground floor of the home and saw an individual, later identified as Moses, lying on his back on a bed. The overhead lights in the room were off and officers could not clearly see Moses. Police Constable Adam Moore ("PC Moore"), was the lead officer in the clear and secure team. He told Moses to turn around and show his hands. PC Moore's evidence was that when Moses did not respond, he attempted to turn him over and a physical struggle ensued. PC Moore further testified that he struggled to maintain control of Moses’ hands, one of which was still under his body. PC Moore explained that Moses was fighting to keep his hands away from the officer. Officers struck Moses several times in an attempt to gain compliance and take control of him.

[20] Sergeant Tim Daley ("Sgt. Daley") was the fourth officer in line in the search and clear team. His heard PC Moore giving multiple commands to Moses to show his hands.

[21] Sgt. Daley was called into the bedroom to assist the officers in taking control of Moses. Sgt. Daley saw Moses swinging his arms and kicking and lashing out at the officers. Sgt. Daley recalled that when Moses continued to be assaultive he was told that a Taser would be used if he continued to resist. Sgt. Daley considered other use-of-force options, including pepper spray or a baton, but determined they were not appropriate in the circumstances. It was Sgt. Daley's belief at the time that Moses may have been in possession of a firearm. At this point in time, a significant portion of the residence had not yet been searched and cleared and secured.

[22] After the Taser warning was given, Sgt. Daley testified that officers still did not have control of Moses. Sgt. Daley deployed the Taser in "dry stun mode", the low energy setting, in an area of soft tissue in Moses’ lower back. Officers were then able to secure his hands and apply handcuffs. Once the handcuffs were on, Moses was removed from the residence.

[23] As a result of the struggle, Moses sustained injuries to his face and lip and on his lower back where the Taser was applied. Moses received immediate medical attention from the EMS staff on scene and was released unconditionally. His injuries completely resolved in four to six weeks.

[24] Nothing was found as a result of the search warrant. All members of the residence were released unconditionally. The TPS officers left at approximately 1:37 a.m., or about two hours after the search warrant was first executed.

Standard of review

[25] The standard of review on an appeal from a judgment’s final order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law the standard of review is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

The Deputy Judge’s Decision

[26] The Deputy Judge dismissed six of the eight actions. Moses was awarded $15,000 in damages plus costs and interest, for injuries he sustained during the struggle with TPS officers. Princess was awarded $5,000 for trauma associated with observing Moses’ injuries and $909.56 for a door that was damaged during execution of the search warrant.

[27] The Deputy Judge determined that the search warrant was judicially authorized. He found that the "breach and hold" method of executing the warrant was appropriate and was reasonably executed with respect to all plaintiffs except Moses.

[28] The Deputy Judge found that the TPS Board was liable to Moses for executing the search warrant in an unreasonable manner because they used excessive force. The Deputy Judge made several findings of fact to support his decision.

[29] The Deputy Judge found that “eight armed highly trained skilled officers” of the ETF entered the residence. At least three ETF officers were inside Moses’ bedroom. When the first ETF officer entered the bedroom, Moses was lying on his back and “there was no evidence that he was reaching for anything”.

[30] Moses was fast asleep in his bedroom with the TV on, after coming home tired from a high school football game. The Deputy Judge found that Moses was “understandably stunned and shocked and in a state of disbelief when he was grabbed and punched and screaming to be let go”.

[31] PC Moore was the first officer to enter the bedroom. He turned Moses onto his stomach. The officers in the bedroom struggled with Moses and were able to expose his hands before Moses was tasered.

[32] The Deputy Judge accepted Moses’ evidence that the officers beat and kicked him 15 to 20 times and then tasered him. Before Moses was tasered and handcuffed, one officer held one arm and a second officer held the other arm. A third officer held Moses’ legs.

[33] Dealing with Moses, the Deputy Judge found that Moses was a “most credible witness”. He accepted as fact the description of force that Moses provided. The Deputy Judge set out the evidence as follows:

His evidence was that he was asleep and he remained lying in bed and he heard words, “Hands up”. Don’t move”. He said he jumped up with his hands up. He got blows to his face while lying in the bed. Officers were on top of him yelling, telling him to stop resisting. He thought it was a dream. He said he was not resisting. He was ultimately on his stomach taking blows. He was moving side-to-side. He was threatened with a taser and then received a taser in his lower back. He received more blows following the administration of the taser. He was then cuffed and fell to the floor and he was hit on the face as he was being pulled by the cuffs. He was then taken outside and seen by the paramedics.

[34] The Deputy Judge found that while Moses was "resisting" officers during the struggle in his bedroom, he was not "assaultive" and the force used to ultimately secure him was excessive.

[35] During the assault, Moses did not have a weapon in his hand and was not reaching for anything. He only raised his hands to protect his face from the blows. In these circumstances, the Deputy Judge found that Moses could not reasonably be considered a threat.

[36] The Deputy Judge further found, based on a careful consideration of the evidence, that "[i]n any case with the three officers physically engaged with Moses, the issue of control in my view within the context of locating a weapon was no longer in issue".

[37] The Deputy Judge rejected Sgt. Daley's evidence that Moses was assaultive because this evidence was internally inconsistent and inconsistent with the other officers.

[38] The Deputy Judge preferred the evidence of Moses to the officers' when it was in conflict:

I believe Moses. I found his evidence very credible. On a balance of probabilities … and notwithstanding the latitude to be given to police officers, I find that it was unnecessary and unreasonable to beat him and kick him to the degree that they did and to apply the taser.

[39] In summary, the Deputy Judge held that the TPS officers used excessive force with Moses. For this reason, the search as it relates to Moses was unreasonable and unlawful, and s. 8 of the Charter was violated.

[40] Turning to Princess, the Deputy Judge found that she “suffered immensely” when she saw her youngest son “beaten swollen bloodied and traumatized”. Princess became hysterical when she saw Moses. Although the Deputy Judge did not have any medical evidence concerning Princess, he accepted that she was traumatized by the experience and awarded her $5,000 in damages.

[41] The Deputy Judge explained that $5.000 award was “simply for what she endured with respect to the injury to Moses, not as a result of the incident at large”. He clearly stated that he found no Charter beaches “other than the unreasonable force inflicted on Moses". He found that but for Moses, the rest of the plaintiffs were not subject to “unlawful or unreasonable treatment”.

The TPS Board Appeals

1. MOSES WATER

[42] The TPS Board argues that the Deputy Judge erred in law when he assessed the officers' use of force. First, the Board states that the Deputy Judge does not appear to have considered the totality of the evidence and the officers' subjective view of Moses’ resistance during the struggle in the bedroom. Second, it argues that the Deputy Judge used hindsight and substituted his own assessment of the circumstances, for those of the officers as they existed at the relevant time.

[43] There is no dispute about the governing law. Subsection 25(1) of the Criminal Code provides that:

Everyone who is required or authorized by law to do anything in the administration or enforcement of the law…

(b) as a peace officer or public officer…

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.

[44] When assessing how a search warrant is executed, the police must be “judged by what was or should have been reasonably known to them at the time, not in light of how things turned out to be”. As well “the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force a situation will require . . . after the fact assessments are unfair and inappropriate when applied to situations … where officers must exercise discretion and judgment in difficult and fluid circumstances.” (R v. Cornell, 2010 SCC 31 at paras. 23 and 25)

[45] Further as stated in R. v. Nasogaluak, 2010 SCC 6 at para.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.

[46] In a civil action, a plaintiff who alleges excessive use of force must satisfy the test set out in Wilsdon v. Durham (Regional Municipality) Police, 2011 ONSC 3419. At para. 68-69 the court stated:

68 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.

69 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. [Footnote omitted.]

[47] In Castro v. Monteiro, 2012 ONSC 6907 at para. 45 the court explained the degree of latitude that should be provided when assessing the use of force:

… 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.

[48] Finally, in Webster v. Edmonton (City) Police Service, 2007 ABCA 23, at para. 26 the court stated that the “immediate decisions a police officer makes in the course of duty are not assessed through the "lens of hindsight".

[49] The parties agree that when assessing the force used, a hindsight analysis is not permitted. The issue is whether the Deputy Judge relied on hindsight in this case. If he did, then this is an error of law.

[50] The TPS Board states that the Deputy Judge relied on a hindsight analysis. In particular, it states that the Deputy Judge relied on the fact that Moses was 14 years old, a fact that the officers did not know at the time. The Deputy Judge referred to Moses’ age three times in the reasons as follows:

It is my finding on the evidence before me that the police did indeed exercise unreasonable force with respect to Moses and that he received physical and emotional injuries which should have been avoided and which he ought not to have endured. Moses was only 14 at the time. The defendant said he looked much older. While I have no evidence of that he certainly did not appear before me to look any older than his age.

While he was not handcuffed, which is the police definition of control, I am satisfied that the police indeed did have sufficient control and this 14 year old could not be deemed to be a danger and that the police used much too much excessive force than was required under the circumstances.

I simply conclude that the police went too far in light of his age and that he was only resisting, and did not appear to be a threat.

[51] As well, the Deputy Judge found that there was “no evidence that [Moses] was looking for a weapon”. The TPS Board says that this is another example of hindsight because the officers had no way of knowing what Moses was looking for and this does not change the risk that the officers faced.

[52] The TPS Board also argues that the Deputy Judge erred in law because he did not consider the totality of the circumstances that the officers faced and did not consider their subjective view of Moses. The reasons do not support this argument. The Deputy Judge reviewed and assessed all of the evidence. In the end, the Deputy Judge favoured the evidence of Moses on the excessive force issue.

[53] The TPS Board argues that the Deputy Judge favoured the evidence of Moses with the benefit of hindsight. I accept that during the execution of the search warrant the officers did not know that Moses was 14 years old. I do not accept that this fact led the Deputy Judge to find in favour of Moses. The totality of the reasons must be considered.

[54] The Deputy Judge found as a fact that the officers beat and kicked Moses 15 to 20 times. He also found that after the officers had Moses’ arms and legs held down, another officer applied the Taser. This is the factual foundation that led the Deputy Judge to find that the officers “had sufficient control” over Moses and, in these circumstances, used excessive force. While some of the Deputy Judge’s comments appear to link Moses’ age to whether he was a threat and the degree of force required, one cannot single out lines in the reasons for judgment. The totality of the reasons must be considered and, as a whole, they do not support the argument that the Deputy Judge erred in law by relying on hindsight to find excessive force.

[55] The TPS Board’s appeal is dismissed.

2. PRINCESS WATER

[56] The TPS Board appeals the judgment in favour of Princess Water. It states that the Deputy Judge erred in law awarding her damages, because he did not find the TPS Board liable to Princess for any of the causes of action that were pleaded.

[57] It is trite to say that there must be a finding of liability against a defendant before damages can be awarded in favour of the plaintiff. An award of damages can only flow from a finding of liability.

[58] In this case, the Deputy Judge clearly stated that except for the unreasonable use of force applied to Moses, “none of the parties were assaulted or physically harmed.” With the exception of Moses, the Deputy Judge found that the “police acted reasonably.”

[59] As noted in para. 41 above, the $5,000 award was “simply for what she endured with respect to the injury to Moses, not as a result of the incident at large”.

[60] No doubt it was upsetting for Princess to see her son Moses injured. However, this was not a case where Princess advanced a claim in her son’s action under s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3 for pecuniary loss resulting from the injury to her son. Further, the Deputy Judge had no evidence of any compensable injury to Princess.

[61] It was an error in law to award Princess damages in the absence of a finding of liability in her action. As a result, the TPS Board appeal is allowed.

[62] The judgment in favour of Princess Water in Small Claims Court File No SC-13-23954 is set aside.

The Cross- Appeals of Princess and Moses Water

[63] Princess and Moses have a cross-appeal from the decision of the Deputy Judge. They argue that the Deputy Judge erred in law when he failed to find that they were arbitrarily detained and arrested on the night in question. Specifically, they allege that the Deputy Judge did not apply the correct test to determine if there was a detention and/or an arrest and whether the detention and/or arrest was unlawful.

[64] As already stated, the Deputy Judge dismissed the claims of six of the eight plaintiffs in their entirety and awarded damages to Moses. The damages were not based upon any finding of arbitrary or unlawful detention or an arrest. In the case of Princess, the Deputy Judge did not find any identified breach of a Charter right or cause of action.

[65] At trial, the parties agreed on the following key facts. First, the search warrant was judicially authorized and properly obtained by the TPS officers. Second, the breach and hold method of executing the search warrant was reasonable and appropriate in the circumstances. Third, the TPS officers detained the Waters family. The issue at trial was whether the detention was unlawful.

[66] In addition to what is set out above, the following facts are relevant.

[67] Since the subject of the search warrant was a firearm, the TPS officers executing the search warrant at the residence were concerned about their safety, the safety of the resident occupants and the safety of the general public.

[68] Before entering the residence, the ETF officers called out to the occupants to inform them of their presence and their identity as TPS officers. They directed all occupants to come to the front of the house with nothing in their hands. The occupants were handcuffed and then brought outside.

[69] The TPS officers placed handcuffs on the occupants to minimize any potential violence, cut back on any flight risk and to ensure that the residents did not take any steps against the officers.

[70] The ETF officers then proceeded into the residence to secure the area, before turning it over to the Drug Squad to complete the search. During the ETF phase of the search, the ETF officers encountered Moses in his bedroom. He was secured and removed from the residence, treated by EMS personnel on site and released unconditionally when the search was completed.

[71] After the ETF officers finished their search of the residence, all eight members of the family were brought back inside. They had been outside for about 25 to 35 minutes. They were kept in the living room until the Drug Squad’s search of the residence was completed and it was confirmed that there was no firearm on the premises. The entire process of executing the search warrant took approximately two hours.

1. The Detention Issue

[72] Based on the facts, the Deputy Judge found that the detentions were not arbitrary. His reasons for this conclusion are set out below.

[73] The possible presence of a firearm meant that the TPS officers were “dealing with a potentially dangerous situation”. For this reason, the Deputy Judge was “not at all persuaded that the police … should have been required to employ different tactics simply because it was raining or simply because a number of the other occupants were not wearing shoes”.

[74] The Deputy Judge rejected the argument that it was not necessary to handcuff the occupants and take them outside. On this point, he explained the scope of the search warrant as follows:

The plaintiffs also allege that once Alpha, the target of the warrant, was removed from the residence, there was no need to cuff the others and take them outside. I also do not agree. The warrant was not simply to detain and control Alpha. It was to search the premises for a potentially dangerous weapon and drugs. The warrant was not completed until all the occupants were removed and the house was fully searched.

[75] The Deputy Judge noted that the TPS officers used the practice of handcuffing the family members “because family members often become highly charged emotionally and often involve themselves in the execution search to the detriment of the safety of themselves and the officers executing the warrant.”

[76] Aside from complaints about the handcuffs being too tight, the Deputy Judge found that there was no evidence of any unreasonable force. He found the use of the handcuffs “normal” and noted that aside from Moses no one was “assaulted or physically harmed.”

[77] The Deputy Judge found that the Water family was not unlawfully detained. He relied on the law as stated in R v. Connor, [2009] O.J. No. 3827 at para 82 as follows:

It is routine police procedure when executing a search warrant at a residence to round up all of the occupants and keep them under police control while the search is ongoing. That procedure is necessary to protect the efficacy of the search and to ensure the safety of the officers engaged in that search. It would be wholly unworkable to require police executing a search warrant to provide every person on the premises with their rights to counsel immediately upon entering those premises.

[78] The Deputy Judge found that the delay and restriction of the Water family was necessary to protect the efficacy of the search and to ensure the safety of the officers. The occupants were not restrained beyond what was reasonable.

[79] Moses and Princess argue that the Deputy Judge erred in law by failing to apply a clear test for detention, and that had the correct test been applied, the conclusion would be that a detention had taken place. Moses and Princess framed this as an error of law. However, during the hearing of this appeal, counsel for Princess and Moses agreed that the law set out in R v. Connor in the above passage is correct. They now argue that the Deputy Judge erred because they say that it was unreasonable on the facts of this case to follow the police procedure set out in R v. Connor. This is an alleged error in the application of correct legal principles to the evidence. The standard of review therefore is palpable and overriding error.

[80] The Deputy Judge gave clear reasons and on the facts of this case, there is no basis for finding that he made a palpable and overriding error. This was a valid search warrant that involved a firearm. There is ample authority that rounding up the occupants and keeping them under police control until the search warrant is executed, is not a detention that engages the Charter.

[81] In R v. Hernandez-Rodriguez, 2016 ONSC 1700 at para. 9, the court recognized the need to control occupants in a premise that is being searched:

They were authorized to execute a search warrant by dynamic entry. Where such entries are authorized, the aim is for an abrupt entry and the swift and secure control of any occupants inside. Ideally, nobody will get hurt in this process. For good reason, such entries usually are executed in the early morning hours so that the occupants will be unaware and unprepared for the police entry. For a citizen who happens to be inside the target dwelling, the experience can fairly be described as “shock and awe”.

[Emphasis added.]

[82] The need to maintain control in the execution of a valid search warrant was also recognized in Ahmed v. Winnipeg (City) Police Service, 2015 MBQB 68, at para. 70. Referring to R v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980 (S.C.C.), the court stated:

The law is clear that when executing a search warrant the police are entitled to control the premises. This allows them to detain and handcuff occupants, and where circumstances are or potentially are dangerous, which I find was the situation here given that firearms were involved, a detained person is not allowed to call their lawyer until the premises have been cleared of people.

[83] The TPS officers had a valid search warrant involving a firearm. Courts have recognized that officers will be "concerned, quite reasonably, about their safety and the safety of any other individuals who might be inside the residence". In such circumstances, the execution of a search warrant will necessarily involve "coincidental contact necessary to detain and handcuff the inhabitants" (R v. Boussoulas, 2014 ONSC 5542 at paras. 151 and 153).

2. The Arrest Issue

[84] In addition to the above facts, the Deputy Judge reviewed what happened in the residence after the occupants were brought back inside. The Deputy Judge found that there was no arrest and s. 9 of the Charter was not engaged. The following excerpts from the reasons deal with this issue:

Until the house was cleared there was never any intention to arrest, nor was there any arrest. The occupants were merely being restricted in their movements until the search was completed.

I find it totally reasonable for the police to delay and restrict movements in the living room while the Drug Squad was continuing and completing their search. I find that the police sat the Plaintiffs down in the living room and showed them the warrant even while the search was being conducted and I find this to be entirely reasonable.

[85] The TPS officers prepared a Record of Arrest for all of the occupants. Moses and Princess rely on this document to show that they were arrested.

[86] Sergeant Johnston testified that it is a mandatory procedure for TPS officers to create a Record of Arrest, whenever someone is detained. Such a record is created whether or not the person is charged. In the absence of a charge, TPS uses the document for informational purposes only.

[87] Dealing with the Record of Arrest document, the Deputy Judge rejected the argument that this was proof of arrest. He stated:

The record of arrest which was presented later in the house I admit contains an unusual choice of words and perhaps the word 'arrest' is somewhat misleading. Detective Johnson, however, explained that it is necessary police procedure to prepare these documents, which are then filed in the database. The police made it clear, and I accept that these records of arrest are simply documents filed for internal police documentation and that was the whole intention of this document.

[88] The Deputy Judge's determination that the Record of Arrest was simply a document filed for internal police documentation, was a finding of fact that he was entitled to make based upon the evidence before him. Moses and Princess have not demonstrated any palpable and overriding errors.

[89] The parties agree that the test for determining if a person is under arrest is set out in R v Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217 at para. 24. An arrest “consists either of (i) the actual seizure or touching of a person's body with a view to his detention, or (ii) the pronouncing of 'words of arrest' to a person who submits to the arresting officer.”

[90] Moses and Princess say it is unclear from the reasons what test the Deputy Judge applied. Since there is no reference to the Latimer test, it should be inferred that the Deputy Judge applied the wrong test and therefore erred in law.

[91] I am guided by the recent direction of the Court of Appeal in Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520 at para. 35 as follows:

Reasons from the Small Claims Court must be sufficiently clear to permit judicial review on appeal. They must explain to the litigants what has been decided and why: Doerr v. Sterling Paralegal, 2014 ONSC 2335, at paras. 17-19. However, appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently. In short, in assessing the adequacy of the reasons, context matters

[92] I appreciate that the Deputy Judge did not refer to any law when deciding if Princess and Moses were arrested. However, this cannot lead to the assumption that the Deputy Judge erred in law. The reasons are sufficient to permit a review on appeal. The Deputy Judge’s finding that the occupants were not arrested is consistent with the Latimer test. The occupants were not told that they were arrested. The contact with the occupants was necessitated solely to ensure the safe execution of the search warrant. As a result, the Deputy Judge did not err in law and he made no palpable and overriding errors.

[93] The cross-appeals are dismissed.

Conclusion

[94] I make the following orders.

[95] The TPS Board’s appeal in Small Claims Court File No SC-13-23951 is dismissed.

[96] The TPS Board’s appeal in Small Claims Court File No SC-13-23954 is allowed and the judgment in favour of Princess Water is set aside.

[97] The cross-appeal of Moses Water in Small Claims Court File No SC-13-23951` is dismissed.

[98] The cross-appeal of Princess Water in Small Claims Court File No SC-13-23954 is dismissed.

[99] There has been divided success on these appeals. At the end of the hearing the TPS Board stated that it was not seeking any costs either way. Counsel for Moses and Princess Water requested an opportunity to consider costs upon receipt of this decision. If Moses and/or Princess Water are seeking costs and such request cannot be resolved between the parties then I direct as follows. The parties shall agree to a timetable for exchange of brief costs submissions and send them to my attention no later than January 23, 2107.

___________________________ C. Horkins J.

Released: December 14, 2016