Court File and Parties

COURT FILE NO.: 25086/10
DATE: 2013 11 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Justin Richard Joseph Landry, Plaintiff (Moving Party)

AND:

Jason Rains, Robert D. Davies, Chief of Police of the Sault Ste. Marie Police Service and Sault Ste. Marie Police Service Board, Defendants (Responding Parties)

BEFORE: E.J. Koke

COUNSEL:
Counsel, for the Plaintiff/Moving Party, Joseph A. Bisceglia
Counsel, for the Defendants/Responding Parties, Brian G. Grant

HEARD: November 12, 2013

ENDORSEMENT

Motion for Addmissibility of Photographs of the Plaintiff’s injuries and /or the filing of medical records and calling of medical evidence to describe the nature and extent of the injuries

Background

[1] The plaintiff sustained serious and permanent injuries when he was bitten by a police dog while being apprehended for an alleged crime. He wishes to tender certain photographs which were taken immediately after the apprehension as evidence of the nature and severity of the injuries he received in his encounter with the dog, and to tender medical records and reports which set out the nature and severity thereof. He also wishes to call one or more doctors to testify with respect to the injuries he sustained.

[2] Prior to trial, the plaintiff and defendants settled the issue of the quantum of damages. These damages are payable by the defendants in the event that they are found liable, or in the event there is a finding of contributory negligence against the plaintiff, the defendants are to pay an amount based on the degree of their negligence.

[3] This is a trial by jury. The defendants argue that since the issue of the quantum of damages is no longer a live issue, the nature and severity of the injuries is not relevant and has no probative value in relation to the remaining issue, which is whether the police acted reasonably and in accordance with established policies and procedures. They argue that the desire of the plaintiff to tender this evidence is a thinly disguised attempt to evoke sympathy for the plaintiff from the jury.

[4] The plaintiff argues that the nature and severity of the injuries is relevant in relation to its claim that the deployment of the dog constituted an assault and battery on the plaintiff, and that it constituted unreasonable force such that the defendants cannot avail themselves of the protection of s. 25 of the Criminal Code, R.S.C., 1985, c. C-46.

The Law

[5] In considering the admissibility of photographs of the body of the deceased in the murder case R. v. Hindessa, [2009] O.J. No. 3838, Molloy J. stated the following:

The Test for Admissibility…

11. The approach to be taken by the trial judge is to first determine the probative value of the evidence by assessing its relevance and materiality. Next the trial judge must determine the prejudicial effect of the evidence because of its tendency to prove matters not in dispute or because of the risk that the jury will use the evidence improperly. Finally, the trial judge must balance the probative value against the prejudicial effect, taking into account the importance of the evidence at the issue to which it is relevant and the seriousness of the risk that the evidence will be improperly used, even if the jury is instructed not to do so. (See R. v. P. (R.) , [1990] O.J. No. 3418 (H.C.); R. v. (1990), 58 C.C.C. (3d) 334Kinkead, [1999] O.J. No. 1498 (S.C.J.); R. v. Currie, 2000 22822 (ON SC), [2000] O.J. No. 392, 31 C.R. (5th) 306 (S.C.J.).

Discussion

[6] I agree that the first step in my analysis should be to determine the probative value of the evidence by assessing its relevance and materiality.

[7] In assessing the relevance and materiality, I look to the pleadings. In his statement of claim, the plaintiff alleges the following and he argues that this establishes relevance:

a) The defendants knew or ought to have known that by releasing and unleashing Taser, Taser was being used as an attack dog, and in the circumstances the dog was an instrument of force or harm (para. 39).

b) By unleashing Taser, the defendants used the dog to commit an assault and battery (para. 41).

c) By unleashing Taser, the defendants knew or ought to have known that he would run wild and be an agent or vehicle of attack likely to cause injury and victimize the plaintiff (para. 43).

d) By releasing Taser, the defendants knew or should have known that they would be unable to control the dog and he could cause serious injury and bodily harm to Justin (para. 44).

e) The use of Taser in the circumstances amounted to an excessive and unreasonable use of force, and the amount of force was not commensurate with the alleged breach of peace or matter being investigated (para. 46).

f) The defendants knew or should have known that unleashing and deploying Taser was similar to use of a firearm leading to potential lethal consequences (para. 48).

g) The defendants failed to give the plaintiff proper and reasonable notice of his arrest (para. 50).

[8] The plaintiff takes issue with the following allegations in the defendants’ statement of defence, and argues that this also establishes relevance:

a) At all material times Taser was secured to a leash which was continuously held by officer Rains (para. 7).

b) Taser followed the plaintiff’s scent into a heavily wooded area and in accordance with proper tracking procedures, police officers were not using flashlights to illuminate the area, which was pitch dark (para. 8).

c) While tracking the plaintiff through the wooded area, Taser suddenly came upon the plaintiff who was attempting to conceal himself behind logs and bushes, and immediately upon contacting the plaintiff, Taser bit and held the plaintiff in accordance with his training and in accordance with the applicable standard of care and police policies. As soon as Taser contacted the plaintiff, Constable Rains caused Taser to release his grip on the plaintiff (paras. 9 and 10).

d) The use of force applied to the plaintiff was reasonable in the circumstances (para. 14).

e) The defendants rely on s. 25 of the Criminal Code, which provides a justification to peace officers with respect to the use of force in circumstances where they act on reasonable grounds and use as much force as is necessary to apprehend a suspect (para. 17A). The defendants plead that they used no more force than necessary to apprehend the plaintiff.

[9] It is clear from a review of the pleadings that the main issue for the jury to decide is whether the defendants, and in particular Officer Rains, acted reasonably in deploying Taser in the circumstances in which they found themselves on the night in question.

[10] In Gallo v. Smuland, [2006] O.J. NO. 4511 (S.C.J.), Gordon J. of the Ontario Superior Court commented on the test to be applied in determining whether a police dog should be deployed. In that case, the plaintiff alleged that he was assaulted by the Sudbury police after he was bitten by a police dog while being apprehended. The plaintiff argued that the police had used excessive force by deploying the canine unit. Relying on Levesque v. Sudbury Regional Police Services, [1992] O.J. No. 512, and Romanow [sic] v. Vancouver, 2003 BCSC 661 [Robinow], Gordon J. commented at para. 45 of the decision that, “An officer is not expected to measure carefully the exact amount of force that the situation requires. He will be exempt from liability if the amount of force used is commensurate with a reasonable assessment of the circumstances and dangers at hand.”

[11] Following this statement, Gordon J. proceeded to review the circumstances in which the dog in question was deployed, concluding that he was unable to find on the evidence that any useful investigative tool other than the canine unit could have been employed in the circumstances, and that the choice to use the canine unit could not give rise to liability. Significantly, in coming to this conclusion, Gordon J. did not consider the severity of the injuries sustained by the plaintiff as a factor in his analysis, focusing exclusively on the actions of the police officers.

[12] Confronted with a similar issue in Berntt v. Vancouver (City), 1999 BCCA 345, Southin J.A. considered the question of how the court should determine the reasonableness of a police officer’s belief that a specific level of force was required to suppress a riot. She held that to determine the question of "reasonable grounds", the Court should be a "doppelganger" to the police officer and accompany him or her through all of the relevant events, considering his or her training, experience and the orders of the day. She stated at para. 27:

What a judge must not do in a case such as this is take into account in determining the issue of "reasonable grounds" what the person injured was in fact intending to do, nor the actual consequences of the force used, no matter how tragic.

[13] In Robinow, the plaintiff suffered extensive loss of soft tissue, nerve damage and scarring as a result of being bitten by a police dog. The plaintiff alleged that the use of the police dog constituted excessive force and brought action against the police officer and the city for damages for assault and battery.

[14] In determining whether the officers acted reasonably in the circumstances Allan J. commented at para. 71 of his decision as follows:

The reasonableness of Constable Star's actions on July 3, 1998 falls to be determined in the light of the circumstances and not through the lens of hindsight: Chartier v. Greaves, [2001] O.T.C. 121 (S.C.J.) at [paragraph] 64; Anderson v. Port Moody (City) Police Department, 2000 BCSC 1194, [2000] B.C.J. No. 1628 at [paragraph] 51. After the fact, it is obvious that Mr. Robinow was a young man, unarmed, without a criminal record and not dangerous. His judgment was impaired by heroin and he panicked. However, those facts were unknown to Constable Star in the heat of a potentially dangerous pursuit and he was trained to anticipate an armed suspect who may be planning an ambush.

[15] I consider those statements apt in this case. The quantum of damages is no longer an issue in this case, and in my view the medical evidence, including the photographs of the injuries which the plaintiff wishes to introduce into evidence, has no relevance in relation to the issue of whether the officers conducted themselves reasonably, or were properly trained. What is relevant is the conduct and actions of the police officers, which are to be viewed in the context of the circumstances in which they found themselves on the night in question. As stated by Southin J.A., the actual consequences of the force used, no matter how tragic, are not part of the analysis.

[16] Even if I could be persuaded that the nature and extent of the plaintiff’s injuries are somehow material and marginally relevant to the remaining issues, I am of the view that the prejudicial effect of admitting such evidence would outweigh its probative value. The admission of such evidence would take several days of court time, and in my mind would constitute a major distraction to the jury, and would likely interfere with the jury’s ability to properly consider relevant evidence and issues and place them in their proper context.

[17] I am therefore ruling that the photographs depicting the plaintiff’s injuries taken by the Sault Ste. Marie police at the hospital shortly after the incident occurred, as well as the photographs taken at St. Michael’s Hospital and photographs taken of his tracheotomy and scarring, are not admissible. Also, the medical and hospital records setting out the nature and extent of the injuries are not to be admitted into evidence.

[18] Notwithstanding my decision to exclude the photographs and the medical records and oral medical evidence, in my view it may be helpful if the injuries sustained by Mr. Landry were described to the jury in a general and abbreviated manner. Mr. Landry has a permanent tracheostomy which is visible to the jury. Without some explanation, the jury may be inclined to speculate about the nature and extent of his injuries, and this is something which should be avoided. Also, a general description of the injuries sustained will provide a broader context for the jury. I would be willing to receive submissions from counsel on this issue if they cannot agree.

E.J. Koke SCJ

Date: November 12, 2013