ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-45581-SR
DATE: 2012/03/15

BETWEEN:

VELVET THÉRÈSE LECLAIR
Plaintiff

– and –

THE OTTAWA POLICE SERVICES BOARD, VERNON WHITE, NORMAN REDMOND and MARK TALBOT
Defendants

Karin Galldin and Leslie Robertson, for the Plaintiff
Matthieu Charron, for the Defendants

HEARD: September 12‑16, 2011 (Ottawa)

REASONS FOR JUDGMENT

KERSHMAN J.

1. INTRODUCTION

[ 1 ] The Plaintiff commenced an action against all of the Defendants for damages for assault, sexual assault, harassment, intentional infliction of mental distress, and discrimination contrary to the Ontario Human Rights Code (the “ Code ”), R.S.O. 1990, c. H-19 , and for punitive damages, arising out of a series of interactions that took place July 13, 2007 at Ottawa.

[ 2 ] The Plaintiff also alleges negligence on the part of the Defendant Vernon White for his failure as Chief of Police to ensure that the Defendant police officers received adequate training in the area of human rights.

2. FACTUAL BACKGROUND

(a) Events Prior to the Plaintiff’s Arrest

[ 3 ] On July 13, 2007, the Plaintiff was a 26‑year-old childcare worker who lived with Sandra MacIntyre (“Sandra”), and sisters, Adrienne Gowing (“Adrienne”) and Carrie Gowing (“Carrie”) in Gloucester, Ontario.

[ 4 ] Between 8:00 and 9:00 p.m. on July 13, 2007, the Plaintiff went to Bluesfest with her friends Carrie and Stephen Prebble (“Stephen”). While there, the Plaintiff met a friend, Troy, and went to see a concert. Carrie and Stephen went to see a different concert at the same time in another part of the same venue.

[ 5 ] The Plaintiff testified that she had one or two beers at Bluesfest.

[ 6 ] After the concert, the Plaintiff, Carrie and Stephen went to the Dominion Tavern (the “Dominion”) on York Street and met up with Sandra and Adrienne. Troy did not join them.

[ 7 ] The Plaintiff testified that she did not have anything to drink at the Dominion. The Plaintiff, Carrie and Stephen wanted to leave and go to a dance club. Prior to leaving, the Plaintiff had an argument with a former co-worker in the washroom at the Dominion. The Plaintiff testified that she was upset at the outcome of the argument.

[ 8 ] The Plaintiff, together with Carrie, Stephen, Adrienne and Sandra, left and went to a dance club called Suite 34 (the “Club”) on Clarence Street. Various witnesses referred to the Club by different names. The Court finds that Suite 34 is the club in question despite the different names used by various witnesses. The Plaintiff’s evidence was that she had two drinks at the Club.

[ 9 ] The Plaintiff testified that she and Sandra had an argument at the Club about Troy. The Plaintiff said it was “an argument about jealousy.”

[ 10 ] The Plaintiff’s evidence is that she had a total of four drinks between 9:00 p.m. and 2:00 a.m.

[ 11 ] All five of them left the Club before 2:00 a.m. Sandra’s sister, Laurie, met them in the Market to drive some of them home. Stephen also had a vehicle nearby. It was agreed that since Stephen had been drinking, all six of them would go in Laurie’s car, a Volkswagen Beetle.

[ 12 ] Laurie was driving, and her sister Sandra was in the passenger seat. In the backseat were Adrienne, Carrie, Stephen and the Plaintiff. The Plaintiff testified that since there were only three seatbelts in the back, she lay across the other three people.

[ 13 ] The Volkswagen was preceding easterly on York Street. Near the intersection of Dalhousie Street, Sandra made an obscene gesture at police officers in a cruiser. A police officer identified as Officer Talbot ordered the car over to the side of the street. The car turned the corner onto Dalhousie Street and parked.

(b) Plaintiff’s Arrest

[ 14 ] In the car, Laurie and Sandra got into an argument as to why Sandra had made the obscene gesture to the police.

[ 15 ] According to the Plaintiff, Officer Talbot approached the driver’s door while Officer Redmond approached the passenger door. Officer Redmond commented that there was an extra person in the back of the vehicle. The Plaintiff testified that the two officers walked away and stood about five metres from the vehicle. The evidence was that Laura and Sandra continued the argument about the obscene gesture in the car. Neither Laura nor Sandra testified at trial. In addition, the Plaintiff testified that she had not had any contact with Sandra since the incident and that Sandra had moved out of the house shortly after it.

[ 16 ] Both Officers Talbot and Redmond testified that Officer Redmond approached the driver’s door and Officer Talbot the passenger door.

[ 17 ] Stephen testified that he wanted to get out of the car to explain why there was an extra person in the vehicle. In order for him to get out, Sandra had to get out first, which she did. The Plaintiff heard Sandra say to one of the officers, “What do you want? I had a really bad f---ing night.” By the time that the Plaintiff had gotten out of the car, she saw Sandra with her hands behind her back and the police walking her towards their cruiser.

[ 18 ] The Plaintiff testified that she approached the officers hopping back and forth trying to make eye contact with them, asking why Sandra was being arrested and pleading with them not to arrest her. The Plaintiff said that the officers ignored her, and Officer Redmond finally said that they were arresting Sandra for public intoxication and the obscene gesture but not for the additional people in the car.

[ 19 ] The Plaintiff also testified that she told Officer Redmond that she thought he was over‑reacting about the obscene gesture and that she did not think he should arrest Sandra for it. The Plaintiff said, “If you’re gonna arrest everybody for a gesture, you could potentially arrest me for speaking to you.” According to the Plaintiff, Officer Redmond said, “Bitch, you just said the wrong thing to me.” He muttered something under his breath and with a loud voice said, “Ma’am, you’re under arrest.” He then grabbed her arms and put them behind her back. He tried to handcuff her and starting yelling, “Stop resisting arrest.” The Plaintiff said that she was standing very calmly and letting him put the handcuffs on her; he was holding on to them saying, “Stop resisting arrest.” The Plaintiff replied, “I’m not resisting arrest. You’re just making it look that way.” There were a series of exchanges of “Stop resisting arrest” and “I’m not resisting arrest” between Officer Redmond and the Plaintiff. Then, according to the Plaintiff, Officer Talbot walked over and grabbed her head and pushed it on to the police car and said, “Ma’am, stop resisting arrest.” The Plaintiff said she finally stopped talking about not resisting arrest when her shoulders were in such pain that she could not speak anymore. She was then taken to the police station with Sandra.

[ 20 ] According to the evidence of Officers Redmond and Talbot, when Sandra was being arrested and taken to the police car, the Plaintiff bodychecked Officer Redmond twice. The force of the second bodycheck pushed Officer Redmond against the cruiser.

[ 21 ] Officer Talbot tried to put handcuffs on the Plaintiff but was unable to do so alone. After Officer Redmond placed Sandra in the police cruiser, he assisted Officer Talbot in putting the handcuffs on the Plaintiff. Officers Talbot and Redmond both claimed that there was quite a struggle to get the handcuffs on the Plaintiff, and they had to push her against the side of the police cruiser because she was resisting.

[ 22 ] The Plaintiff testified that she did not touch either officer at the scene of the arrest.

[ 23 ] According to Officer Redmond, while driving in the police cruiser, he attempted to read the Plaintiff’s her rights, but she was very vocal and was talking over him so he stopped.

Police Station

(c) Events After the Arrest

(i) What Happened

[ 24 ] The cruiser drove into the sallyporte at the police station on Elgin Street.

[ 25 ] The Plaintiff testified that she wanted to walk from the car into the station without Officer Talbot’s assistance, but he refused to let her do so.

[ 26 ] The DVD evidence showed that the Plaintiff was struggling with Officer Talbot when she was being taken from the police car in the sallyporte into the station. She appeared aggressive, uncooperative and was trying to pull away from him.

[ 27 ] Officer Redmond testified that by the time the car got to the police station, Sandra had calmed down and was congenial. He decided to release her without any charges. Arrangements were made for the two officers to take Sandra back to her home. According to Officer Redmond’s notes, the officers left the police station around 3:15 a.m. to drop Sandra at her home, which occurred at about 3:30 a.m.

[ 28 ] The Plaintiff remained in the cells. She was charged with obstructing a police officer while in the lawful exercise of his duties under s. 129 of the Criminal Code of Canada (“ C.C.C. ”). The Plaintiff was released later on Saturday morning, July 14, 2007.

[ 29 ] The Plaintiff retained a lawyer and subsequently pleaded guilty to the obstruction charge.

[ 30 ] The following is a synopsis of the facts that were agreed to by the Plaintiff at the hearing for obstructing a police officer:

On the 14 th of July 2007, Velvet Leclair did physically try to stop Cst Redmond from making a lawful arrest of intentionally [intentionally left blank] under section 31(4) of the Ontario Liquor Licence Act . Cst Redmond had [intentionally left blank] under arrest and was trying to place her in the rear of the police car at the corner of York St and Dalhousie St, when Cst Redmond was attacked from behind in the form of a bodycheck from Leclair. Leclair was pushed back and ordered to stay away. She was also warned of a possible obstruct charge. Ignoring the officers’ warnings she advanced and bodychecked Cst Redmond again. Cst Redmond was able to place [intentionally left blank] in the police vehicle regardless of the obstruction. Cst Redmond then turned to Leclair and arrested her for obstruct police. Leclair resisted efforts to place her in restraints and began screaming and yelling obscenities. This caused a crowd to gather and become anti‑police. During the transport to the station, Cst Redmond attempted to read both women their rights to counsel and caution but Leclair would not listen. The rights and reason for arrest were explained several times in layman terms. Once at the cellblock, Leclair was denied the right to speak with counsel as she was violent with cellblock staff and refuse to comply while being search. Leclair was later released on an undertaking with a promise to appear.

[ 31 ] The Plaintiff entered into a Diversion Program where she completed 25 hours of community service work.

[ 32 ] On Sunday, July 15, 2007, both the Plaintiff and Adrienne went to the Emergency Department of the Ottawa General Hospital (“Ottawa Hospital”). Adrienne went because she too had been arrested at the scene by other officers, had been taken to the police station and was charged.

[ 33 ] Medical records were produced by the Plaintiff from the Ottawa Hospital showing that she suffered bruises to both wrists and the left elbow, a sore back, and that the rest of her body was aching. The records state that the nurse who examined the Plaintiff offered to have her seen by an emergency room physician but the Plaintiff declined.

[ 34 ] The medical records state, “They were there mostly to have the bruises documented.” The Plaintiff’s evidence was that there was no follow-up treatment to her for physical injuries. She did attend counselling through the hospital on several occasions but did not find that the counsellor was providing her the support that she felt that she needed so she stopped attending.

[ 35 ] The Plaintiff said that, in addition to her physical injuries, she became depressed, and she was afraid of drawing too much attention to herself. She testified that she had been seeing a counsellor at various times including up to the present time.

[ 36 ] The Plaintiff testified that a few years ago, of her own volition, she attended for a psychological assessment with an unnamed medical professional. The Plaintiff testified that the report came back clear and that she did not have any post‑traumatic stress disorder. No report was filed.

[ 37 ] The Plaintiff’s evidence was that after her arrest she returned to work without taking any time off.

[ 38 ] Evidence was given by Adrienne, Stephen and Carrie that prior to that incident, the Plaintiff was a happy, warm, outgoing person and that subsequent to the incident she had become depressed, subdued and was not trusting of others.

(Sections continue exactly as provided in the source…)

Mr. Justice Stanley Kershman

Released: March 15, 2012