ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO: CV-08-367768
DATE: 20121206

B E T W E E N:

Manuel Castro Plaintiff - and - Robert Monteiro, Bing Lou and Toronto Police Services Board Defendants

Tony Afecto, for the Plaintiff
Kristen Franz and Alison Barclay, Student-at-Law , for the Defendants

HEARD : October 29, 2012

GOLDSTEIN J.:

[ 1 ] At noon December 6, 2006 the Plaintiff Manuel Castro was in the area of Bloor Street and St. Clarens Street in the City of Toronto. He was in an alleyway when he encountered the Defendants Robert Monteiro and Bing Lou. Monteiro and Lou are both police officers. Monteiro arrested the Plaintiff. The Plaintiff concedes that Monteiro had reasonable and probable grounds to arrest him. During the course of the arrest the Plaintiff’s left shoulder was injured. He says that Monteiro used excessive force and that the Defendants should therefore be liable for damages arising out of an assault. Monteiro says that the force that was used was reasonable under the circumstances.

[ 2 ] Monteiro and the Defendant Lou Bing were, at the time, members of the Defendant Toronto Police Service (“ TPS ”) and acting within the scope of their employment as police officers. Accordingly, their conduct is governed by s. 25 of the Criminal Code , which states

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

( a ) as a private person,

( b ) as a peace officer or public officer,

( c ) in aid of a peace officer or public officer, or

( d ) by virtue of his office,

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.

[ 3 ] The sole issue before the court is whether Monteiro used excessive force. In my view he did not and the action is dismissed.

FACTS

Evidence of The Plaintiff Manuel Castro

[ 4 ] The Plaintiff testified that on December 6 2006 at around noon he took a taxi to the area of Bloor Street and Lansdowne Street in Toronto in order to look for a prostitute. He was not looking for anyone in particular. At the time he was on bail for unrelated criminal charges. When he arrived at the area he saw a young woman at the corner of Bloor Street and St. Clarens Street (which is near Landsdowne). The Plaintiff had seen her before in the area. They had a conversation in which the young woman asked for $40 in exchange for sex. The Plaintiff gave her the $40.00. The Plaintiff and the young woman were joined a short time later by a tall thin white man who the Plaintiff took to be the woman’s dealer. The dealer left for a nearby restaurant and returned a short time later with a tissue, which he handed to the Plaintiff. He was suspicious that the tissue contained crack cocaine. He kept the tissue in his right hand.

[ 5 ] Although the Plaintiff testified that he did not fully understand the role of the dealer, the obvious inference is that the young woman expected to receive crack cocaine in exchange for sex as part of a three-way deal. The Plaintiff forthrightly admitted that he knew the Bloor-Landsdowne area to be one where prostitutes frequently bought crack cocaine. He also admitted that he has had an addiction to crack cocaine.

[ 6 ] The Plaintiff testified that after he received the tissue he followed the woman northbound up St. Clarens Street into an alleyway. The particular alleyway had an entrance to a building with a shallow alcove and several steps leading to the door. The young woman stopped there. She was looking in her purse for what the Plaintiff believed was likely a crack pipe. He was standing on the first step of the landing with the tissue in his left hand.

[ 7 ] The Plaintiff testified that he then spotted a white male and an Asian male out of the corner of his eye coming into the alley. (Constable Monteiro is white and Constable Lou is Asian). The Plaintiff testified that at that point everything happened very quickly. The white male yelled “police” when they were about 3 to 5 meters away from the Plaintiff and coming around an unoccupied van parked in the alley. The men were not in uniform. The Plaintiff was nervous about being in possession of what he thought were illegal drugs so he threw the tissue away. He agreed in cross-examination that he knew the men were police officers when they identified themselves.

[ 8 ] The Plaintiff further testified that as he threw the tissue the white officer embraced him and locked him and forcefully threw him off the step. He testified that he landed on his left shoulder and felt a sharp pain there. The white officer jumped on top of him and must have stayed on top of him for about a minute, after which he went up and went to the doorway. The Asian officer then came over and placed his foot on the Plaintiff’s neck. In cross-examination, the Plaintiff testified that he was trying to get rid of the crack cocaine. He stated that as the white police officer was moving towards him he threw the tissue and agreed that his arm was moving at that time.

[ 9 ] The Plaintiff testified that he did not make any motion towards his pocket or have anything in his pocket. He states that when the officers asked for identification he retrieved his OHIP card from his wallet. He testified that he was handcuffed to the front. He complained to the officers about the pain in his shoulder. The Plaintiff was arrested and charged with possession of cocaine and failure to comply with recognizance. After processing at the station he was taken to hospital where he stayed overnight and was treated for a broken shoulder. In cross-examination the Plaintiff testified that prior to these events he had never met the police officers.

Evidence of The Defendant Robert Monteiro

[ 10 ] Monteiro testified that he had been a police constable with Peel Regional Police from 1993 to 1996, and a member of TPS since 1996. He is currently with the Emergency Task Force. On December 6 2006 he was assigned to the vice section of the major crime unit at 14 Division. The section, which is a plainclothes unit, is mandated to investigate crimes of prostitution, drugs, and alcohol.

[ 11 ] Monteiro testified that like every police officer he has taken use-of-force training and is required to re-qualify every year. For 3, 4, or 5 days every police officer is required to take the basic use-of-force course, including on his or her firearm. He testified that he was within his yearly qualification period on December 6 2006. The course changes from time to time. Some years there is training on racial issues or school lock-downs, for example, but the basic skills are re-taught every year.

[ 12 ] Monteiro further testified that he had been employed as a civilian instructor at the Toronto Police Bick College as a defensive tactics instructor for one year, in which capacity he instructed police officers and court officers.

[ 13 ] On December 6 2006 Monteiro and Lou were conducting an undercover investigation involving a bawdy house in the Bloor-Landsdowne area. They were in plainclothes that day although he had police equipment with him, including an expandable baton, firearm, handcuffs, and a radio.

[ 14 ] Monteiro testified that he observed the Plaintiff at approximately 12:10 that day in the company of a female that he had been observing. She had piqued his interest because her actions were consistent with someone looking for drugs. The area is well-known for prostitution, alcohol, and drugs, particularly crack cocaine. He estimated that he has arrested hundreds of people in the area. Monteiro further testified that there are special considerations when dealing with people who may be under the influence of drugs. The main problem is that they are unpredictable and potentially volatile.

[ 15 ] Monteiro testified that he observed the Plaintiff and the female at the north-east corner of Bloor Street and St. Clarens Avenue. He observed the Plaintiff having a brief conversation with a white male who was unknown to him. The Plaintiff, the female, and the unknown white male were all standing very close together. Monteiro observed a hand-to-hand transaction between the Plaintiff and the unknown white male. The unknown white male handed the Plaintiff a white tissue. The Plaintiff looked into the tissue and then placed it in his left pocket. The Plaintiff then handed something to the unknown white male but Monteiro could not see what it was.

[ 16 ] Monteiro testified that he then observed the Plaintiff walk northbound on St. Clarens Avenue. He briefed Lou that he had observed a hand-to-hand transaction and that there were two targets. The two police officers then continued to conduct observations. Monteiro lost track of the Plaintiff when he entered an alleyway. The alleyway is a narrow laneway proceeding to the west, but there is only one way in or out. The lighting was good as it was daylight.

[ 17 ] As he entered the alleyway, Monteiro observed the Plaintiff and the female in an alcove on the north side. The Plaintiff was standing on the first step facing westbound and the female was sitting on the second step. Monteiro testified that he came around an unoccupied van, pulled his warrant card and badge from his walled, and said “police, don’t move”.

[ 18 ] Monteiro observed that the female had a disposable lighter in her hand and that the Plaintiff was holding the white tissue in his left hand. He approached the plaintiff on a 45-degree angle. Monteiro testified that at the police college officers are taught that the 45-degree approach is called “triangulation”. Monteiro used the method for safety purposes so that Lou could observe both him and the Plaintiff.

[ 19 ] As Monteiro approached, the Plaintiff dropped the tissue and made a motion with his left hand, trying to conceal his hand in the left pocket of his trench coat. Monteiro took hold of the Plaintiff with a simple grab by the left shoulder of his coat. The Plaintiff fell on some loose leaves and debris. He then secured him with his right hand on his back for maybe a second. He testified that the Plaintiff was instantly compliant. He then retrieved the crack cocaine and put him under Lou’s control. Monteiro testified that throughout the Plaintiff was compliant, cooperative, and not aggressive. He was not seen to be aggressive with the female, either. He handcuffed the Plaintiff to the front, which is always more dangerous for the officers, because the Plaintiff was not perceived as threatening.

[ 20 ] Monteiro’s objective was to pull the Plaintiff away from the crack cocaine and the woman and secure him. Monteiro testified that in his experience prostitutes, who are often involved in drug transactions, sometimes brandish weapons to intimidate customers who don’t pay. He was also concerned that the Plaintiff, who had been involved in an apparent drug transaction, may also have had a weapon. His other concern was that the Plaintiff would stomp on the recently-dropped crack cocaine and destroy it. He testified that the preservation of evidence is of the utmost concern in a drug case.

[ 21 ] Monteiro denied that he wrapped his arms around the Plaintiff, as it would not make sense. As he put it, “I myself don’t see a possible application for that maneuver.” It would render his arms occupied and a second suspect could have access to his firearm. Monteiro testified that by wrapping his arms around the Plaintiff it would completely shelter him from his partner and make it difficult for his partner to render assistance. Monteiro also denied jumping on the Plaintiff’s back.

[ 22 ] After the Plaintiff was transported to the station. After the Plaintiff was fully searched and booked, Monteiro was advised that he had been injured and taken to the hospital. He had not been aware of a significant injury. He then prepared an injury report and a use of force report. In both reports he only referred to the preservation of evidence as his reason for using force.

[ 23 ] In cross-examination, Monteiro indicated that his primary reason for grabbing the Plaintiff initially was for officer safety reasons. Monteiro also agreed that he had indicated on the use of force form that he had emphasized the preservation of evidence rather than officer safety. He testified that he probably should have filled out the forms more carefully than he did. The forms are usually sent to the police college for statistical purposes, and it is rare that they are disclosed in criminal proceedings. Monteiro testified that this case was the first time he had come across the use of these forms in court.

[ 24 ] Later that evening Detective Page, Monteiro’s supervisor, indicated that the Special Investigations Unit (“ SIU ”) would be called in to investigate the Plaintiff’s injury. The SIU is an arms-length agency that investigates injuries caused by the police. He was not disciplined or charged by the SIU as a result of their investigation.

Evidence of the Defendant Bing Lou

[ 25 ] Lou testified that he had been a police constable with York Regional Police from 1995 to 1999, and a member of TPS since 1999. He is currently with Intelligence. Prior to that he was with the Emergency Task Force. On December 6 2006 he was assigned to the vice section of the major crime unit at 14 Division and working with Monteiro on a bawdy house investigation in the Bloor and Landsdowne area. He was doing undercover work and did not have any police equipment on him. Like Monteiro, he testified that the area is known as a drug area. He testified that he has arrested hundreds of people for drug offences in the area. Lou further testified that when dealing with people addicted to drugs their reactions are very unpredictable and safety is always an issue. Where drugs are concerned, there is also a possibility that people will have weapons.

[ 26 ] Lou testified that when he first observed the Plaintiff he was conversing with an unknown white male. A white female was also present. They were close together and looking up and down the street. He observed a hand-to-hand transaction in which the unknown white male handed the Plaintiff a crumpled tissue. The Plaintiff looked at the crumpled tissue and then placed it in his pocket, but Lou testified that he does not recall which one.

[ 27 ] Lou testified that he observed the Plaintiff and the female enter an alleyway north of Bloor off St. Clarens. He and Monteiro entered the alleyway on foot. The alleyway is very narrow and there is only one exit. As he and Monteiro entered the alleyway, he observed the Plaintiff standing on steps in a doorway. It looked as though they were preparing to smoke crack cocaine, as the female had a lighter in her hand and the Plaintiff had the tissue in his left hand. Lou testified that he yelled “stop what you’re doing” and that he and Monteiro both identified themselves as police officers. He took control of the female and did not see Monteiro take control of the Plaintiff. He states that Monteiro advised him that the Plaintiff had dropped crack cocaine. Once he had the female under control he took control of the Plaintiff while Monteiro went to the step to retrieve the crack cocaine. He arrested the Plaintiff, cautioned him, and did a pat-down search looking for weapons or drugs. He found none.

[ 28 ] Lou denied that he had put his foot on the Plaintiff’s neck. He stated that the Plaintiff told him that he had a sore shoulder. The Plaintiff was cuffed to the front because he was being cooperative. Lou testified that he had no role in the creation of the use of force form or the injury report that Monteiro filled out. The Plaintiff was not aggressive with him. He agreed in cross-examination that he did not observe the Plaintiff being aggressive with anyone while Lou had him under observation.

ANALYSIS

[ 29 ] As noted, the only issue before the Court is whether the force applied by Monteiro was excessive in the circumstances. The critical time-frame for determining this question is the moment where Monteiro applied force to the Plaintiff. All three witnesses agreed that the events happened very quickly.

The Evidentiary Issues

[ 30 ] There are two conflicts in the evidence as between Monteiro and the plaintiff:

1. Was the Plaintiff attempting to put something in his pocket?

2. Did Monteiro “bear hug” the Plaintiff or grab him by his coat?

[ 31 ] The Plaintiff testified that he held the tissue in his right hand as he stood on the step in the alleyway. Monteiro and Lou both testified that the Plaintiff held the tissue in his left hand. All three witnesses agree that the Plaintiff was moving his arm as Monteiro moved towards him. It is not clear whether Monteiro saw him attempt to put something in his pocket, or whether Monteiro saw him dropping the crack cocaine. I agree with Mr. Affecto, the Plaintiff’s counsel, that the Plaintiff was likely not trying to put something in his pocket: he did not have a weapon or drugs in that pocket, and it would not make sense for him to put the tissue containing the crack cocaine in his pocket as he was trying to discard it. It is unnecessary for me to resolve whether the Plaintiff held the tissue in his right hand or his left hand, because what is important is that all three witnesses agree that as he dropped the crack cocaine and the tissue his hand was moving. It is obvious that one or two of the three of them is mistaken. What most likely happened, and I find it as a fact, is that the Plaintiff moved his hand as he discarded the crack cocaine and Monteiro interpreted (or misinterpreted) that movement as going for his pocket. What matters for the purpose of the analysis is that Monteiro observed a hand movement and that everything happened very quickly. It is also important that the movement consisted of dropping the crack cocaine.

[ 32 ] In my view, the Plaintiff’s version on the point of the bear hug does not make sense, although I acknowledge and make allowances for the fact that the events transpired very rapidly. How could he have “flown through the air” as he testified if he were wrapped in a bear hug? It makes much more sense that a simple grab of his trench coat to pull him away from the step made him “fly” through the air. It further makes sense that as Monteiro pulled the trench coat the Plaintiff perceived, in the extremely short time period over which these events occurred, that the tightening was like having arms wrapped around him. I accepted Monteiro’s evidence on this point and find that he used a simple grab to pull the Plaintiff.

[ 33 ] Plaintiff’s counsel relies heavily on the Use Of Force Report and the Injury Report filled out by Monteiro. The narrative of the Use Of Force Report states:

Accused party was observed to be in possession of a quantity of “crack” cocaine. Officers approached to arrest party, he attempted to discard evidence. He was pulled away from the cocaine as to preserve it as evidence. The accused lost his balance and fell to the ground injuring his left shoulder.

The narrative of the Injury Report states:

At the time of the arrest the accused attempted to discard a quantity of “crack” cocaine. He was pulled away from the evidence tripped and fell to the ground striking his shoulder.

[ 34 ] I agree with Plaintiff’s counsel that there is undoubtedly some truth in the reports that Monteiro was primarily concerned with evidence preservation. I observe that Monteiro is bigger, younger, and fitter than the Plaintiff. I do not doubt that he was physically capable of handling him. That said, I find Monteiro’s evidence that he had officer safety concerns to be credible. He and Bing both testified that when dealing with drug situations accused persons can be violent and unpredictable. The officers testified that the Bloor-Landsdowne area is known as a drug area, and that the drug of choice is crack cocaine. The officers also testified that drugs and weapons often go together. The Plaintiff himself testified that he has purchased crack cocaine in the area. I find that Monteiro’s actions were motivated by both officer safety concerns and the preservation of evidence.

[ 35 ] I conclude, however, that it is irrelevant whether Monteiro was motivated by officer safety concerns or evidence preservation concerns. The question of Monteiro’s testimony regarding officer safety versus evidence preservation can only go to his credibility, and I found him to be a credible witness. I found him to be credible because his evidence made sense. I acknowledge that his evidence is self-contracted to some degree by the emphasis on evidence-preservation in the Use Of Force Report and the Injury Report, but I accept his explanation that he probably should have used more care in filling it out. Furthermore, I accept his evidence that what was uppermost in his mind at the time he filled out the report was evidence preservation but that officer safety was his number one concern at the time of the event. He did not know of the extent of the Plaintiff’s injuries at that time. In any event, it is legitimate for a police officer to use force to preserve evidence.

[ 36 ] I therefore find as a fact that Monteiro grabbed the Plaintiff by the shoulder and pulled him away from the step, the female party, and the cocaine. The Plaintiff then fell and injured himself.

Legal Analysis

[ 37 ] There is no doubt that Monteiro used force to subdue the Plaintiff. Was that force excessive?

[ 38 ] Police officers are not required to use the least amount of force to effect their purpose. They are permitted to use “as much force as is necessary”. In Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512 (Gen.Div.) Bernstein J. stated:

The plaintiff argues that the officers should be found partially liable even if their versions are accepted. Mr. Zylberberg asserts that they had an obligation to determine and employ the least amount of force to effect their lawful purpose and that securing her hands behind her back caused some part of the injuries. He complains that the defendants failed to determine if she would voluntarily and peacefully proceed to the back seat of the cruiser upon request after being told she was under arrest.

With respect, I disagree that the law imposes such an obligation on police officers effecting a lawful arrest. In my view, the test to determine whether the officers used only as much force as was necessary is best expressed by Stevenson J. in Breen vs. Saunders et al. 1986 5280 (NB KB) , [1986] 39 C.C.L.T. 273 N.B.Q.B. at pg. 277, where the following passage is found:

"Was it more force than was necessary? A policeman's job is not an easy one. However, it is his lot to have to deal with persons who, fortified by drink, obstruct and provoke them while they are carrying out their duties. Mr. Justice Dickson, in Foster vs. Pawsey (1983) 1980 3146 (NB KB) , 28 N.B.R. (2nd) 334 said: "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner." The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course." C.P. Ltd. vs. Gill 1973 2 (SCC) , [1973] S.C.R. 654 " (emphasis added)

[ 39 ] The principles to be applied were summarized by Power J. in Chartier v. Greaves , [2001] O.J. No. 634 (Sup.Ct.) at para 64 :

64 The following additional principles can be gleaned from the legal precedents cited to and reviewed by me:

(a) Section 25 of the Code does not apply to cases where negligence is involved. The actions of Constable Nurse were deliberate and not negligent, in the sense that he intended to shoot the Chartier brothers.

(b) The purpose of Section 25(1) is twofold; "it absolves from blame anyone who does something that he is required or authorized by law to do and it empowers such person to use as much force as is necessary for the purpose of doing it". (See Eccles v. Bourque).

(c) The onus of proving that the force used was not excessive lies on the police officers. Put another way, the onus on a plea of justification in the use of force lies on him who asserts it.

(d) A police officer is not at liberty to shirk his/her duty. If he/she does, he/she may be charged with "neglect of duty". A police officer should, where possible, explain why an obvious alternative but less dangerous course of action was not taken.

(e) The question of whether force is excessive is a question of fact for determination upon the evidence and in the circumstances of each particular case under review.

(f) A firearm is a dangerous weapon and should be used only when necessary and only with reasonable care.

(g) A police officer is not free to use force of whatever kind or extent he or she may think fitting in the circumstances.

(h) Whichever section of the Criminal Code is used to assess the actions of the police, the Court must consider the level of force that was necessary in light of the circumstances surrounding the event.

(i) "Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver).

(j) Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.

(k) "It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.).

[ 40 ] There is no doubt that the burden of proof to show that an injury occurred lay on the Plaintiff; that burden was satisfied by agreement between the parties as well as the evidence. Monteiro caused the injury.

[ 41 ] The question of whether the burden then shifts to a police officer to show that the amount of force used was not excessive has been the subject of commentary. In The Law Of Evidence In Canada , Bryant, Sopinka, and Fuerst state:

In civil proceedings, the persuasive (legal) burden of proof operates in a similar manner. In an action for assault and battery, the plaintiff must prove that there was an application of force to the victim, that the blow caused injury, and the quantum of damages. However, the defendant has the persuasive burden in relation to the defence of justification and that he or she used no more force than was necessary.

[ 42 ] I agree with the decision of Allen J. in Bevan v. Ontario , [2010] O.J. No. 2910, 2010 ONSC 3812 (Sup.Ct.) :

41 I find the weight of judicial authority falls in favour of the burdens of proof being shared by the plaintiff and defendant -- the plaintiff bearing the legal burden to show on a balance of probabilities an injury caused by the actions of the defendant and the defendant bearing the evidentiary burden to demonstrate on the same standard that they used no more force than necessary. This approach makes sense in my view since the party who has engaged a forceful action would be in a better position to explain their action than the party on the receiving end. I think this is more the case for state authorities with the lawful authority to inflict harm and even to take human life that they bear the obligation to demonstrate the reasonableness and necessity of their actions.

[ 43 ] Monteiro’s actions must be seen in the light of the following circumstances:

• Monteiro and Bing were acting within the scope of their employment as police officers.

• The Bloor-Landsdowne area is a high-crime area known for drugs, alcohol, and prostitution.

• The Plaintiff and the young woman he was with had just completed a hand-to-hand transaction which the police officers, reasonably and correctly, believed involved drugs.

• The Plaintiff concedes that the police officers had reasonable and probable grounds to arrest the Plaintiff. The evidence supports that concession.

• Drug users and especially prostitutes often carry weapons in the Bloor-Landsdowne area. Drug users can be violent and unpredictable.

• Monteiro did not use, or even pull out, his firearm or his expandable baton, both of which he was carrying. He used only his hands.

• The entire transaction, from the moment the police officers identified themselves to the moment where the Plaintiff fell to the ground, injured, took only seconds. Unlike in the Bevan case, which is relied upon by the Plaintiff, the officers in this case had very little time for reflection and planning.

[ 44 ] Based on all the circumstances, I find that the Defendants have met their persuasive burden and the force that was used was justified in the circumstances. Monteiro faced a situation of potential danger. He also faced a situation where important evidence could have been destroyed. His goal was to move the Plaintiff away from the other suspect and the evidence, and control him. A simple grab to the shoulder was not excessive in the circumstances.

[ 45 ] There is often an imbalance of power between a police officer and a citizen. Police officers are not above the law and must be held accountable for their actions. That said, 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.

DISPOSITION

[ 46 ] The action is dismissed.

[ 47 ] If the parties are unable to agree on costs, the Defendants may submit, within 14 days, a brief costs submission (not exceeding 2 pages) and a costs outline. The Plaintiff may submit, within 10 days after that, a brief costs submission (also not exceeding 2 pages) in reply.

[ 48 ] Counsel are to be complimented for the highly efficient and civil manner in which they conducted this trial.

GOLDSTEIN, J.

Released: December 6, 2012

COURT FILE NO: CV-08-367768
DATE: 20121206

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

Manuel Castro Plaintiff - and - Robert Monteiro, Bing Lou and Toronto Police Services Board Defendants

JUDGMENT
GOLDSTEIN J.

Released: December 6, 2012