SUPERIOR COURT OF JUSTICE

KITCHENER SMALL CLAIMS COURT

Court File No. SC-10-00001017-0000

B E T W E E N :

DOUGLAS CORMACK
Plaintiff

• and -

WATERLOO REGION POLICE SERVICES BOARD
Defendant

REASONS FOR JUDGMENT

[1]. The plaintiff, Douglas Cormack commenced an action arising out of an interaction he had with Constable Halliday on the morning of July 28, 2008 at approximately 2:30 AM. The plaintiff is seeking damages arising from what he alleges is a false arrest. The plaintiff in fact was arrested by Constable Halliday at the corner of King Street and University Avenue in Waterloo and transported by police cruiser to the police station located on Frederick Street in the City of Kitchener. The plaintiff remained in custody until the next morning when he was released after being charged with the offense of being intoxicated pursuant to the Liquor License Act section 31 (4) . The plaintiff was unable to work the following day and therefore lost one day of pay.

[2]. Ultimately, the charges of being intoxicated were withdrawn by the Crown Prosecutor when the matter came to trial. The explanation provided to the court was that the arresting officer was unavailable when the trial was to start that day and the Crown Prosecutor chose to withdraw the charge rather than seek an adjournment on the day of trial. Apparently, Constable Halliday arrived in court after the charges had been withdrawn. Accordingly, there's been no judicial finding of fact with respect to whether or not the plaintiff was in fact in violation of the Liquor License Act.

[3]. The plaintiff testified at trial confirming that he had worked all day on July 27, 2008 and ended his shift at 7 PM. The plaintiff remained at his place of employment which was a restaurant/bar and consumed three bottles of beer while waiting for a co-worker and friend, Mr. Rohrabacher to complete his shift so that the two could proceed to a nightclub located on King Street and University Avenue in the City of Waterloo at approximately 11 PM. The plaintiff further testified that he consumed four mixed drinks while at the nightclub and left the premises with his friend at closing at about 2:30 AM.

[4]. The plaintiff testified that he was able to handle his liquor and estimated that he was a four or five out of a ten on the sobriety scale. The plaintiff candidly stated that while he was not sober, he indicated that his speech was not slurred, and his facilities were generally intact. It is interesting to note that Mr. Rohrabacher testified that he had consumed ten drinks at the nightclub between 11 PM and 2:30 AM and that the plaintiff consumed the same amount of alcohol. Mr. Rohrabacher indicated that he was not in a state of intoxication, his speech was not impaired, and he was not falling over. I make no finding of fact as to how much alcohol the plaintiff consumed however, the plaintiff did concede that he had a “good buzz" from the alcohol.

[5]. The plaintiff testified that after leaving the nightclub he proceeded to walk along King Street towards University Avenue and observed a police car that was proceeding northbound on King Street at a high rate of speed, almost at highway speed being at least 90 km/h. The plaintiff in fact remarked to Mr. Rohrabacher that this was irresponsible behavior. The plaintiff further testified that given the hour of the morning being when all of the other drinking establishments let their customers out, the intersection of King Street and University Avenue was very crowded with many people. The plaintiff testified that he crossed King Street with a green light and after reaching the opposite side of the street observed a police car come to a sudden stop after traveling at a high rate of speed. The plaintiff stated that the windows to the police car were open and the plaintiff stated, "What do you think you are doing?” The plaintiff testified that he was very concerned generally about traffic safety and he has advised the authorities on several occasions in the past about improper driving on country roads.

[6]. The plaintiff further testified that Constable Halliday’s police car made a U-turn on King Street, parked his police cruiser across the street, put the safety flashers on the vehicle, and then advised the plaintiff, “Get going home or I'm going to arrest you." Needless to say, if the plaintiff had followed the police officer's direction, this entire matter would not have come to court. Notwithstanding the direction from the police officer, the plaintiff decided to take matters a step further indicating in court that he had no problem confronting a police officer regarding his driving habits and in fact asked for the police officer's identification. Constable Halliday then requested that the plaintiff return to the other side of the street and the plaintiff obliged.

[7]. The plaintiff testified that he was behind the police officer’s vehicle near the passenger door when the police officer, Constable Halliday asked for his identification. The plaintiff indicated that then he removed his wallet and held the wallet out at which point Constable Halliday took hold of the wallet; however, the plaintiff did not release the wallet and for two or three seconds both the plaintiff and Constable Halliday were both tugging at the wallet. The plaintiff indicated that he wished to remove his identification from the wallet, but when the plaintiff asked Constable Halliday for his identification and according to the plaintiff, Constable Halliday said "Oh you will get it" at which point Constable Halliday forcefully placed the plaintiff into the police cruiser and presumably placed the plaintiff under arrest.

[8]. Mr. Rohrabacher's testimony was very similar to that of the plaintiff with the exception of the amount of alcohol that was consumed.

[9]. Constable Halliday testified provided very similar testimony; however, he denied proceeding at a high rate of speed at the relevant time period. The defendant produced global positioning systems records which seemed to indicate that the police cruiser was proceeding from time to time at a high rate of speed. It is my view that nothing turns on Constable Halliday's conduct prior to the arrest and only provides a background for how the plaintiff came to have some interaction with Constable Halliday.

[10]. Constable Halliday indicated that he made several observations which led him to the conclusion that the plaintiff was intoxicated namely that the Plaintiff had glossy bloodshot eyes, he was unsteady on his feet, and had the odor of alcohol beverage on his breath.

[11]. I find as fact that on the whole of the evidence the plaintiff's eyes were likely bloodshot, he had an odor of alcohol on his breath, and there were other signs of impairment from alcohol which would be consistent with a young man who had worked entire shift, consumed alcohol, and was out at 2:30 AM. Constable Halliday however did not actually place the plaintiff under arrest until there was the struggle for the possession of the wallet as previously mentioned. Constable Halliday in his testimony indicated that it was a culmination of events with the last being the struggle over the wallet. One of the factors of alcohol impairment of course is that it affects judgment; and the plaintiff's decision not to merely proceed home, but rather confront the police officer regarding his driving habits and then struggling over possession of the wallet would be indicative of poor judgment.

[12]. It is clear law that a police officer must not only have a subjective reason to believe that there are probable grounds to make an arrest, but these grounds must be reasonable. In this case, Constable Halliday subjectively believed that the plaintiff had breached the provisions of the Liquor License Act. Specifically section 31(4) which states, "no person shall be in intoxicated condition, (a) in a place to which the general public is invited."

[13]. Intoxication is not the same as impairment. As noted in Mr. Charney's submissions and referred to in R v. Hagarty, 2005 ONCJ 317, [2005] O.J. No. 5462 "it was not enough that a person merely appeared to be under the influence of liquor; there must be evidence of intoxication, that is to say, stupefaction by alcohol to the point where the person had lost the capacity to prevent himself from causing injury to himself or be a danger, nuisance or disturbance to others. A person must be very drunk before he could be said to be intoxicated under this section."

[14]. At no point in the trial did Constable Halliday describe the plaintiff’s behavior as being one of severe impairment or to the level outlined in the case law Haggerty. I find as fact that Constable Halliday did have a reasonable probable grounds on both a subjective and an objective basis to believe that the plaintiff was impaired; however there is not sufficient evidence before me to support a finding that Constable Halliday did in fact have even a subjective belief that the plaintiff was intoxicated as defined in Haggerty noting that Constable Halliday first directed the plaintiff to go home and then asking him to cross the street for purposes of further investigation.

[15]. Section 31 (5) of the Liquor License Act provides "a police officer may arrest without warrant any person he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.” Thus, in order for Constable Halliday to actually arrest the plaintiff, not only must there be a reasonable and probable grounds to believe that the plaintiff was intoxicated, a fact I do not find, but Constable Halliday must believe that there is a safety feature before the arrest can be affected. Constable Halliday relies upon the fact that there was a confrontation on the roadway which created a safety hazard both for the traveling public and the plaintiff.

[16]. The defense relies upon R v. Nunnery 05-SC-000125 SCJ; however in that case, this citizen in question was found by the police officer apparently intoxicated, lying on the ground, incoherent and unable to stand. Clearly this is not the situation faced by Constable Halliday. The defendant also relies upon R v. Ing 2013 ONCJ 46 which has similar features in that a citizen was arrested; however, on the whole of the evidence in that case it would appear that the citizen was not either impaired or intoxicated. That particular case can be distinguished and of little help in that the case involved a police officer who was being charged for assault causing bodily harm and the Crown failed to prove its case beyond a reasonable doubt regarding the police officer’s conduct.

[17]. The defendant in written submissions states, "Therefore, the onus remains with the plaintiff to prove on a balance of probabilities that Constable Halliday could not reasonably believe, objectively, that the plaintiff was intoxicated, or that there was a risk to anyone's safety, or that the arrest was necessary."

[18]. I agree that it is the Plaintiff’s onus to prove his case.

[19]. It seems to me that the plaintiff has to establish on a balance of probabilities that Constable Halliday must have a subjective belief that the plaintiff was intoxicated and that this belief was reasonable in all of the circumstances. Thus, there is both an objective and a subjective threshold which the plaintiff must establish. Once this twofold test is met by the plaintiff, there is no reason to explore the issue of safety for either the plaintiff or another person. If I am wrong on the question of the grounds of intoxication, I believe that the plaintiff has proven that there were no legitimate safety issues which would support an arrest as contemplated by the Liquor License Act.

[20]. The safety issue regarding the plaintiff standing in traffic was created by a Constable Halliday effecting a U-turn. On the whole of the evidence, specifically the initial direction by Constable Halliday to the plaintiff first, that he should merely go home or second, that he should cross the street, I find there was no safety factor to any person, either Mr. Cormack or members of the public that would warrant an arrest as contemplated by the legislation. Had the plaintiff’s circumstances been such as to raise a safety concern, Constable Halliday would certainly not have directed the plaintiff to go home or direct Mr. Cormack to cross the street prior to the arrest.

[21]. Constable Halliday alluded to a potential charge under section 175 of the Criminal Code, namely causing a disturbance. I note that Constable Halliday did not charge the plaintiff with a criminal offense, presumably because the plaintiff’s conduct did not rise to a level that would warrant a Criminal Code charge. I find therefore that Constable Halliday's arrest of the plaintiff was improper and not based upon a reasonable belief that the plaintiff was actually intoxicated as contemplated by the Liquor License Act.

Damages

[22]. In my mind, imprisonment is by its very nature a form of punishment and would give rise to general damages. Fortunately, for all concerned Mr. Cormack was not required to spend very much time in custody and did not suffer any specific injuries. The plaintiff seeks damages specified between $10,000 and $15,000 relying firstly, upon a local case Elliott v. WRPF 2011 ONSC 6889 where the plaintiff received $25,000 and secondly, in Park v Minister of Public Safety 2012 BCPC 138 where the plaintiff received $15,000. I find these two particular cases are distinguishable in the nature of the arrests and the manner in which the arrests occurred which were far more outrageous and harmful than the manner in which plaintiff was treated by the defendant. Moreover, the plaintiff had some part to play in his arrest primarily by his failure to heed Constable Halliday's initial advice to merely go home. This is in sharp contrast to what transpired in the cases of Elliott or Park.

[23]. The defendant suggests that the damages be nominal in the range of $100. I reject this approach as I indicated spending even a short time is a significant injury and worthy of compensation in the sum of $2500 including his one day of lost pay. I find therefore, judgment for the plaintiff in the amount of $2500.

[24]. I wish to thank counsel for the parties for their excellent, concise submissions. If the parties cannot agree on costs than I invite short submissions regarding same.

DATED: July 19, 2013 ______________________________

Mark S. Grossman
Deputy Small Claims Court Judge

granting my reasons.