Foster v. Prince, 2015 ONSC 265
CITATION: Foster v. Prince, 2015 ONSC 265
COURT FILE NO.: 09-44604
DATE: 20150413
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANE VISNESKI FOSTER, NICHOLAS FOSTER, and JAMES LEIGHTON
Plaintiffs
- and -
CONSTABLE JAMES PRINCE, CONSTABLE DEANNE CAMPBELL, SERGEANT DAVE MACDONALD, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE
Defendants
Thomas P. Connolly, for the Plaintiffs
Sara Blake and Meagan Williams, for the Defendants
HEARD: November 26 to 28, 2014; December 1 to 5, 2014; and January 12 to 16, 2015.
McNAMARA R.S.J.
REASONS FOR JUDGMENT
Overview
[1] This litigation arises out of a tragic incident that occurred on April 7, 2007, in the small Ottawa Valley Town of Renfrew, Ontario. On that day Michael Foster was shot and killed in front of his family home in the presence of his mother, one brother, and a number of civilian witnesses.
[2] The primary issue in this case is whether two members of the Ontario Provincial Police, the defendants Constable James Prince and Constable Deanne Campbell (now Deanne Carter) met the standard of care required of a reasonable police officer in the circumstances of this case, or whether their conduct fell below that standard, resulting in the death of Michael Foster. The plaintiffs in the action are the late Mr. Foster’s mother, and two brothers.
Factual Background
[3] At the outset of the trial counsel for the plaintiffs called as witnesses a number of community members and family friends in order to provide some background in relation to Michael Foster. Many of these witnesses had known the deceased his whole life. Their evidence was very consistent.
[4] It established that Michael Foster had emotional and behavioral issues and had difficulty with attention and focus. In the words of some of these witnesses he was “obviously limited intellectually”. Some of these individuals would hire Michael to do odd jobs and he was a willing and good worker. He had to be constantly supervised, however, or he would wander off task.
[5] For the vast majority of his life, Michael showed no signs of physical aggression. He was described as pleasant, friendly, and well mannered.
[6] In January of 2006 Michael’s father and best friend, George Foster, died of a massive heart attack in the living room of the family home. Michael was present with other family members when this occurred. Certain of the witnesses suggested that subsequent to this event Michael began drinking more and there was also some use of marijuana.
[7] As part of the plaintiffs’ case a number of medical records were filed outlining the deceased’s medical history. Those records confirmed Michael’s issues and were consistent with the observations of the lay witnesses as to the existence of Michael’s issues and limited intellectual ability.
[8] The first witness to testify at trial who was present on the day of the incident was James Leighton, Michael’s half-brother.
[9] Mr. Leighton is 36 years of age and is well educated, holding both a college diploma and university degree. At times relevant to this litigation, he was residing in the family home located at 90 Bonnechere Street in Renfrew.
[10] Mr. Leighton confirmed much of the earlier evidence about his brother, Michael, and in particular confirmed that after the death of his father Michael began to drink more and to associate with some heavy drinkers. Despite that he never saw Michael engage in violence or in a physical confrontation, although he did say that Michael had a tendency to raise his voice when agitated.
[11] April 7, 2007, was a Saturday. Mr. Leighton had been away from the home but returned at roughly 4:00 p.m. with some submarine sandwiches. When he entered the home he observed his brother Michael in the kitchen. Mr. Foster seemed, for some reason, to be struggling to operate the microwave oven. Mr. Leighton asked him what he was doing, and immediately observed that his brother had been drinking heavily. He testified that he challenged his brother about his behaviour and the two had words.
[12] Michael left the kitchen area and headed for a small office located at the front of the house where the family computer was kept. To Mr. Leighton’s recollection their mother, Diane Foster, was in the office and he overheard Michael ask her for money and her refuse. Michael apparently became enraged and, according to this witness, was “in her face”. At this point Mr. Leighton intervened and told their mother to call the police.
[13] According to Mr. Leighton, Michael punched the wall and then grabbed Mr. Leighton. In very short order Mr. Leighton threw his brother to the floor and pinned him. He asked him if he was going to behave, Michael assured him he would, and Mr. Leighton let him up. At this point, apparently, Michael realized his mother was on the phone with the police and he began to “freak out” yelling, “Bring them on”.
[14] Michael left the residence muttering something about going to get a gun. He walked three or four houses down the street and then came back. He immediately went upstairs and came back down holding a pellet gun. He headed outside with the pellet gun, paused, and then threw it on the lawn.
[15] Shortly thereafter the first police car driven by the defendant Constable Campbell arrived on the scene.
[16] Mr. Leighton testified that he was now outside the home. He observed the police cruiser go past their house, turn around, and then come back and stop a short distance from their home on the east side of the roadway facing southerly. Mr. Leighton went over and had a brief discussion with the Constable Campbell. He says he explained to the officer that his brother was extremely intoxicated, that he was easy to take down, and that he and Michael had already had an altercation and he had put Michael down on the floor with very little effort. He also told her about Michael having obtained a pellet gun from their home but that Michael had thrown it on the lawn in front of the house. The officer asked Mr. Leighton whether there were other guns in the home and he told her there were not. Mr. Leighton volunteered to go and get the pellet gun, which he did, and gave it to the officer. She put it in the trunk. The officer explained that she was awaiting backup.
[17] By this point in time Mrs. Foster was outside the house as well, standing on the sidewalk a short distance north of the family home. Mr. Leighton joined her there. Michael was going in and out of the house, occasionally walking down the steps to the walkway that leads from their home to the public sidewalk. Throughout he was yelling and screaming that he was not afraid, that he did not care, and that the police could “come and get me”.
[18] At this point Mr. Leighton says that his brother re-entered the house and that he could hear the sound of cutlery crashing from inside the house. Shortly thereafter Michael reappered in the doorway holding two knives in his right hand and another in his left. This witness described the knives as a bread knife, a vegetable knife, and a knife for filleting fish.
[19] At about this time Constable Prince arrived on the scene. According to Mr. Leighton, he observed the constable get out of his car and pull out his weapon. Shortly after that he says the officer “took a stance” and ordered Michael to put down the knives. The officer repeated that command over and over.
[20] Mr. Leighton testified that Michael began to move very slowly in the direction of the officer. He described his movement as “lurching forward” in what he described as “come and get me” mode. He testified that he observed what he thought to be tension on the face of the officer.
[21] Mr. Leighton indicated that as Michael inched toward Constable Prince the officer began to back up. He continued to order Mr. Foster to drop the knives. At some point in all of this, he says he observed the officer raise the gun and hold it with his two hands. The next thing he knew he heard a shot ring out and saw Michael fall to the ground. Constable Prince immediately ran over and tried to communicate with Mr. Foster. In due course an ambulance arrived. Mr. Foster was taken to hospital and shortly thereafter was pronounced dead. The witness confirmed that only one shot was fired.
[22] On cross-examination Mr. Leighton confirmed that when he first came home that Saturday afternoon he observed that Michael’s girlfriend was in the home but he surmised she went upstairs at some point because she was not present, to his observation, as the situation unfolded. He also confirmed it was his suggestion that his mother call 911. He denied that he made this suggestion because he feared for himself and his mother; instead, it was his hope that by involving the police they would get his brother some help for his behavioural issues. He was categorical that he was never afraid of Michael. When counsel suggested to Mr. Leighton that in fact he and Michael had had two separate tussles that afternoon, on reflection he agreed that that was so. On both occasions he says he took Michael down to the floor very easily.
[23] He agreed without hesitation that Michael was very angry that afternoon and extremely agitated.
[24] The witness was shown photographs of knives lying on the roadway and confirmed that those were the knives his brother came out of the residence carrying. He estimated that the fillet knife had a six-inch blade, the bread knife an eight-inch blade and the vegetable knife a seven- to eight-inch blade.
[25] Mr. Leighton agreed that as Michael began inching his way towards the police officer, Mr. Leighton moved from his position standing with his mother and got a little nearer to the front of the residence. He also acknowledged that he told the first officer that he had never seen his brother like this or words to that effect. He also acknowledged it was possible he told her that he did not know what he was on.
[26] Mr. Leighton agreed that as his brother moved toward the officer they (the officer and Michael) were both yelling, and it was possible his brother said, “Shoot me, I dare you, bring it on”, or words to that effect.
[27] He also agreed that when his brother moved forward and the officer backed up, both were moving slowly. He acknowledged that in the midst of all this Michael threw the fillet knife in the direction of the officer, but according to Mr. Leighton it curved to the right and landed half way between them. When it was suggested that that was when the officer went into his stance, he acknowledged that was possible. He also agreed that after throwing the first knife the officer told Michael to drop the knives or he would shoot. He also acknowledged it was possible that he, Mr. Leighton, yelled at his brother, “Don’t be stupid – drop the knife or he’ll shoot you”, or words to that effect. He also agreed he may have seen Michael transfer one of the two remaining knives to his throwing hand at about this point in time.
[28] Entered into evidence during the course of this witness’s evidence was an audio disc of the 911 call placed to the police that day. Spliced in on that same disc were the separate conversations that were taking place between the police dispatcher and the two involved officers.
[29] The 911 call was logged in at 4:23 in the afternoon. During the course of the call, virtually from its very outset, a voice identified as belonging to Mr. Foster can be heard yelling and screaming in the background, sounding completely out of control. The caller identifies herself as Diane Foster, indicates she is Michael’s mother, and requests police assistance at their home on Bonnechere Street in Renfrew. She explains that the police have dealt with him in the past, that he is on probation, and that he is fighting with his brother. There is then reference to the fact that he has left the house and is reported to be going to get a rifle, but shortly thereafter Mrs. Foster indicates he is coming back and she thinks that he is cooling down a little. She also informs the 911 operator that Michael has ADD, that he lost his father and that he took that loss very hard. In the background Michael can be heard continuing to yell and demanding to know whether the police are coming or not.
[30] Later in the conversation Mrs. Foster indicates that on reflection there may be another gun in the house, but she goes on to indicate that it is not loaded, that she had thrown all the bullets out, and that the trigger was locked.
[31] She also indicates during the telephone call that Michael has gone upstairs and come back down with a pellet gun, but shortly thereafter she indicates to the operator that the pellet gun has been thrown on the lawn.
[32] Through much of this Michael and his brother, James, can be heard loudly arguing in the background.
[33] At one point during the conversation Mrs. Foster is heard to say:
He just wants the cop, I guess, to shoot him or something. I don’t know. He’s so frigging drunk it’s ridiculous.
[34] Later she reports that Michael now has a knife and that she is leaving the house “in case he decides to stab somebody”. She is also heard telling the operator that Michael has become so unpredictable she would not even trust him. Near the end of the conversation Mrs. Foster is heard to say:
Well, either take him to a psychiatric or someplace because I can’t put up with this. My nerves won’t do it. My health…
[35] As indicated, intermixed with the 911 call are the separate conversations that are going on simultaneously between the dispatcher and the police officers. The police officers are not able to hear the 911 call.
[36] The dispatcher, at approximately 4:26 p.m., places a call first to Constable Campbell and then to Constable Prince and informs them both of a domestic dispute at 90 Bonnechere Street in Renfrew. The dispatcher relays that at the moment the information is that there are no weapons in the house, that the police have dealt with Michael Foster previously, and that he is reported to be on his way to get a rifle. Very shortly after that this conversation, the dispatcher advises that Mr. Foster is back at the house and is re-entering the residence.
[37] During the call there are interchanges between the dispatcher, Constable Prince and Constable Campbell, and between Constable Campbell and Constable Prince. They cover such things as when the officers are expected to arrive, the fact that Constable Campbell has arrived first, Mr. Foster’s size, and the need for more units if possible.
[38] The dispatcher also advises both officers that while there is no sign of a gun there is now a pellet gun, although it is reported to have no ammunition. Both are cautioned, however, to be careful. Later dispatch advises that while the individual does not appear to have a gun he is armed with knives. Constable Campbell is heard indicating over the broadcast that a taser would be helpful.
[39] According to the log Constable Campbell arrived at 4:31.25. Constable Prince arrived shortly thereafter. At 4:33.25 there was a call requesting EMS be sent right away and indicating that an individual had been shot.
[40] Diane Foster, the late Michael Foster’s mother, testified at some length.
[41] She confirmed earlier evidence the court had heard about Michael and his issues, both developmental and behavioral. Mrs. Foster also confirmed the very special relationship between Michael and his father and the effect of his father’s death on Michael. After his death, in her opinion, Michael became more agitated without his father’s calming influence, and was coming home intoxicated. She arranged for him to attend a counsellor, but no progress was made.
[42] She testified about an earlier incident in July of 2006.
[43] On that occasion Michael came home, having had too much to drink, and wanted his bank card. Because of Michael’s issues, his mother, understandably, managed his financial affairs. She refused to provide the card to him suggesting he had had enough to drink. He simply would not listen and was very demanding, so she gave him the card. He left and she immediately called the police. She advised the authorities at that time that he was headed downtown to the bank, that he was drunk, and that they should have an eye out for him. In due course the police did come upon him on the main street of Renfrew. He was picked up and acted in such a way that the officers felt it necessary to pepper spray him.
[44] He spent the night in jail, and the next day his mother had a heart to heart talk with him about his behaviour. She says she told him that drinking would not bring his father back and left it at that. It was her evidence that her words did not seem to have much effect.
[45] She was present for the events of April 7, 2007, and provided a little more detail that the Court had not heard from other witnesses.
[46] Mrs. Foster indicated that Michael had worked in the morning for a neighbour. He returned home at 1:00 p.m. or 2:00 p.m. and then indicated he was going out for a while. He came back around 4:00 p.m. with his girlfriend, just before his brother James arrived home. Mrs. Foster had been in the office but on James’s arrival went to the living room. At this point she overheard the boys having words, and specifically heard James accusing Michael of being drunk. Michael eventually came into the living room mumbling that he wanted his bank card. She answered with an emphatic no. She walked into the office, he followed, and there was an animated discussion. Michael got loud and confrontational. It was at this point James stepped in, pushed Michael against the cabinet, and put him down on the floor. Mrs. Foster called 911 with the hope that the police would come, take him into custody, and calm him down.
[47] She confirmed the 911 conversation as we heard it and stated that during the course of that conversation she left the house and went to a position on the sidewalk north of their home. She also testified that at this point Michael’s girlfriend appeared and indicated she was going to go get a friend of Michael’s so the friend could calm Michael down.
[48] Mrs. Foster agreed that during the course of the 911 discussion she told the operator that she had had enough of Michael and did not want him back. She was asked to expand on that. Simply put she explained that she was overwhelmed by the loss of her husband, frustrated in trying to deal with Michael and his issues, and simply needed help. She was outside when the two officers arrived and although there are some minor differences in her evidence as to who was where when, on the major points her evidence is generally consistent with all other eye witnesses.
[49] Mrs. Foster did add that, at least from her perspective, when the second cruiser arrived the officer “screeched” to a halt, more or less in front of their house, and literally jumped out of his vehicle. She confirmed that Michael was swearing and mumbling in and around the doorway to their home, knives in hand. She also confirmed earlier evidence that the officer took his gun out, and started yelling for Michael to drop the knives. In her view Michael got more agitated and that led to a series of taunts from Michael for the officer to come and get him. She did concede that a lot of this is all a blur to her.
[50] Mrs. Foster was adamant that she never saw the two officers speak and Constable Prince never spoke to her.
[51] The next thing she knew it was all over.
[52] On cross-examination the witness confirmed that when she spoke to the SIU she may have indicated that it appeared to her that Michael was physically going to strike her. While she conceded she may have said that, she does not recall this happening and she pointed out that the statement to the SIU was given the day after her son’s death when she was in a state of shock.
[53] The plaintiff called an expert witness, Steven Summerville.
[54] After conducting a voir dire I ruled that I was satisfied Mr. Summerville, for oral reasons given, was qualified to provide opinion evidence on the standard of care expected of police officers in circumstances such as those that existed on the day of this incident, and whether or not the two officers involved met that standard.
[55] By way of background Mr. Summerville joined the Toronto Police Service in March of 1978 and served with that force in a number of roles until he resigned in 2001 to take a position in the private sector as a director of security. Toward the latter stages of his police career he was heavily involved in the training of young officers and worked for a period of time as an instructor at the Ontario Police College in Aylmer, Ontario. After leaving the police force he eventually got into consulting and training and on three separate occasions returned to the Police College in Aylmer as a private consultant. He has been qualified on many occasions to provide opinion evidence before various courts and tribunals. His detailed curriculum vitae was entered as an exhibit at the trial.
[56] Mr. Summerville confirmed that he was retained by plaintiffs’ counsel to provide an opinion on officers’ duty of care and whether the standard of care owed by the officers was met in the circumstances of this case. In coming to his conclusions he looked at a great deal of material including the SIU reports, various OPP documents, witness statements, discovery transcripts, and the answers given to undertakings. He also confirmed that he had sat in court throughout the evidence of the various plaintiffs.
[57] In short his major criticism of the actions of the officers involved was that there was a lack of communication between the two officers, and, as a result of that failure to communicate, they had no plan as to how they were going to handle the situation prior to finding themselves in the middle of it.
[58] In terms of Constable Campbell, who was first on the scene, her first obligation was to gather as much information as possible as to what was going on. He conceded she did speak with Mr. Foster’s brother, and got certain information from him that was relevant including that there might be a gun involved and that there certainly were knives involved. It was Mr. Summerville’s opinion that she should have also spoken in more detail to Mrs. Foster, who was outside and available, at which time she might have determined that he had ADD, how much he had to drink, whether he was on medications, etc.
[59] Her major failure, however, was that she did not pass on to Constable Prince the information she did have. Ideally, in Mr. Summerville’s opinion, they should have had a short meeting out of sight of Mr. Foster, but if that was not possible there should have at least been a radio discussion as to what each was going to do. There was never any plan as to how they were going to jointly approach the problem. That was a failure on Constable Campbell’s part that fell below the standard of a prudent police officer in like circumstances.
[60] In terms of Constable Prince, there were a number of criticisms.
[61] Again, while there was some discussion over the radio involving both officers, they never formulated a plan. That, Mr. Summerville repeated, is inconsistent with their training and best practices.
[62] Next, assuming Mrs. Foster was accurate in her evidence, he was critical of Constable Prince’s approach. According to Mrs. Foster he came up to the scene very quickly and parked right in front of the house where Mr. Foster could see him. Next, on observing Constable Campbell off to the side engaged in discussions with people, he made absolutely no attempt to communicate with her in any fashion. He was also critical of Constable Prince getting out of the car with his gun drawn and immediately starting to shout firm police commands. It was Mr. Summerville’s opinion that police officers, since the 1970s, have been taught to speak in a calm fashion on initial contact to try and diffuse the situation. Every effort should be made to try to de-escalate the situation, and what Constable Prince did was the exact opposite. His confrontational approach to dealing with an individual like Mr. Foster invited escalation.
[63] Plaintiffs’ counsel, Mr. Connolly, also suggested to the expert that it is expected Constable Prince will testify that Mr. Foster, shortly after Constable Prince arrived, went into the house and closed the door, and that shortly thereafter Constable Prince began yelling at him to come back out of the house. Mr. Summerville was again critical of this.
[64] In Mr. Summerville’s opinion there was no reason to call Mr. Foster back out, but rather Constable Prince had an opportunity, with the individual contained where he could be seen if he tried to leave, to consult with Constable Campbell and formalize their plan. It would also have been an opportunity to gather more information about the individual he was dealing with. Instead he ordered Mr. Foster to come back out so that hostilities could be renewed.
[65] That, in Mr. Summerville’s view, was not prudent, although he admitted that none of these situations are black and white.
[66] On cross-examination Mr. Summerville acknowledged that there had been a certain amount of information that was shared and that both officers were aware of. First, they knew Mr. Foster was reported to be extremely intoxicated. Second, they knew he had been physically fighting with his older brother. The witness acknowledged that when someone is intoxicated it usually lowers their inhibitions and makes it more difficult to have a rational discussion with the individual because they are unpredictable. The combination of someone who has exhibited violence, is intoxicated, and has weapons increases the risk to both the police and the public.
[67] Next he agreed that there had been talk of rifles and other guns, and that that would raise the risk level as the officers approached the situation. He agreed that a well-trained officer will never assume there is no gun involved simply because the dispatcher has been told that by individuals at the scene. Simply put, from the moment that guns were mentioned, it was a gun call and, at a minimum, it was known that Mr. Foster had knives. The witness confirmed that the presence of guns and knives escalates the situation.
[68] Mr. Summerville also agreed, referring to Constable Campbell, that in addition to her role as first on the scene to garner as much information as possible, she also had a duty to monitor where Mr. Foster was, and, of equal importance, where family members and members of the public were located in order to ensure their safety.
[69] The witness also had to acknowledge that all of the events leading up to the shooting transpired over a very short period of time.
[70] Mr. Summerville also acknowledged that when Mr. Foster threw the first knife there was a significant change in the danger level. He acknowledged that it was certainly open to the officer to infer from that action that Mr. Foster could be intending to cause serious bodily injury or death. He also agreed that as the gap between the two of them closed the situation was becoming more and more unsafe, and that when the officer found himself at the curb of the road and unable to go any further backwards without having to step up on to unlevelled ground, that was not a good option for the officer. The police are taught to stay on a level footing wherever possible. He also acknowledged that when the officer could not back up any further and the gap between him and Mr. Foster was closing, it was quite appropriate for the officer to order Mr. Foster to drop the knife or he would shoot and to in fact fire his weapon when Mr. Foster did not drop the knife. The expert’s view, however, was that the situation would never have needed to get to that point if a different approach had been used.
[71] The first witness to testify on behalf of the defence was Constable James Prince.
[72] Constable Prince was a First Class Constable with the Ontario Provincial Police on the day of this unfortunate incident. He testified that on April 7, 2007, he was on general patrol duty out of the Ontario Provincial Police detachment located in Renfrew, Ontario. He had started his shift at 7:00 a.m. and was still on duty when he heard the first communication relevant to this matter. At that time he was off to the side of Provincial Highway 17 dealing with a disabled vehicle when he heard the first radio dispatch at 4:26 p.m. and heard Constable Campbell respond. Right after that response the dispatcher asked him to respond as well. They were advised that assistance was required because of a family dispute at 90 Bonnechere Street and they confirmed they were available to respond. Constable Prince told us that in their police cruisers they would not hear any of the 911 call but rather secured all input from their dispatcher.
[73] Both Constable Campbell and this witness were advised that Michael Foster was extremely impaired by alcohol or drugs, and this witness advised that he was familiar with Mr. Foster. When asked to expand on that, he indicated that Renfrew is a small detachment, that officers review internal information on people in the town when they are involved with the police, and he was aware that Mr. Foster had been involved in an incident with other officers the summer before. His information was that he had kicked out the window of a cruiser while in custody. Beyond that he did not know Mr. Foster personally.
[74] In any event Constable Prince engaged his lights and siren and headed for the area. By this point in time he was also aware that in addition to being intoxicated Mr. Foster had also been involved in a physical altercation with his brother. There was also talk that a gun may be involved. Constable Prince testified that whenever there is talk of a gun, that escalates the situation from the police perspective.
[75] Constable Prince confirmed that there was ongoing discussion on his way to the call, some with Constable Campbell and some with the dispatcher. He confirmed that those interchanges were as disclosed by the audio recording of those discussions filed in evidence.
[76] Constable Prince acknowledged that as he got closer to his destination he was aware that there was no visible sign of a rifle, but he was quick to add that that does not end an officer’s concern when there is talk of guns. He was also aware that for a time Mr. Foster was in possession of a pellet gun, but that this was no longer an issue. He was aware that knives were now involved. His assessment of the situation was that he was going to be dealing with an aggressive, impaired individual looking to hurt someone.
[77] Constable Prince confirmed that as he got nearer the scene he was not in a position to decide on his next step until he had a chance to observe what was going on. Once he was on Bonnechere Street and approaching the vicinity of the Foster home, he could see Constable Campbell’s car up ahead pointing south. He was northbound. He did not observe Constable Campbell right away, but almost immediately he observed Mr. Foster standing in the doorway of the family home. Constable Prince testified that Mr. Foster had three knives, one in one hand and two in the other, all with the blades pointing out. Mr. Foster was screaming and ranting loudly. He appeared to be aggressive. Constable Prince acknowledged that he accelerated toward the house but denied that he brought his vehicle to a sharp halt. His vehicle was approximately two car lengths from Constable Campbell’s car, on the same side of the street.
[78] At this point he observed Constable Campbell standing behind her car speaking with someone. Constable Prince confirmed that this is consistent with their training as the first officer on the scene where two are responding is the contact officer and has a dual role, which is gathering information and ensuring as best as possible the safety of bystanders. The cover officer, Constable Prince’s role that day, was to get Mr. Foster’s attention on himself and away from others on the street, including Constable Campbell.
[79] Constable Prince’s assessment of the situation, based on his observations of Mr. Foster’s state and the way he was armed, was that there was a high chance Mr. Foster was going to try to hurt someone and that the officer needed to intervene. In consequence he opened the driver’s door of his car, exited the vehicle, and unlocked and partially lifted his gun out of its holster so that he could take it out quickly if needed. He also at that point ordered Mr. Foster not to move and to drop the knives, or words to that effect. His purpose, according to his evidence, was to get Mr. Foster’s attention and to communicate to Constable Campbell that he considered this an extremely volatile situation.
[80] After yelling out his command, at least from Constable Prince’s perspective, Mr. Foster seemed to notice him for the first time. He looked at him and yelled for Constable Prince to “come and get me” or words to that effect. He stepped back inside the house at that point and closed the door.
[81] Constable Prince’s initial reaction was that that was not a bad thing. Mr. Foster was now in the house in a controlled area. Constable Prince decided that he would walk closer towards the front of the house so he could see inside and determine what Mr. Foster was up to. He did just that and observed that Mr. Foster appeared to be pacing back and forth.
[82] Constable Prince testified that it went through his mind that if that was all Mr. Foster was up to, he was now a barricaded person and perhaps there would be time to call for a tactical unit to attend and assist with the situation. He continued to observe Mr. Foster through the window for just a couple of seconds when he saw Mr. Foster look out the window and, in the witness’s words, they locked eyes. Mr. Foster reopened the door and began screaming at the officer, once again armed with the three knives, a fillet knife in his right hand and two other large knives in his left. Constable Prince immediately began to move backwards to keep sufficient separation between himself and Mr. Foster in the event Mr. Foster decided to charge. At this point the officer’s gun was drawn and he was holding it by the side of his leg.
[83] As the constable backed up slowly, he ordered Mr. Foster to step out of the house, not move and drop his knives. Mr. Foster kept swearing and yelling and started moving towards the officer.
[84] When Mr. Foster got to the street he suddenly brought the fillet knife that was in his right hand up over his shoulder and threw it in a downward motion. According to Constable Prince the knife landed some two to three feet from him. At this point, with the risk escalating, he raised his gun, pointing it at Mr. Foster and holding it with two hands as per his training. He continued to order Mr. Foster to drop the knives. His commands had no effect and Mr. Foster kept coming at him in a straight line.
[85] Because of his familiarity with the area Constable Prince knew that there was a curb behind him, and beyond it a slight knoll leading up to the Rectory of the Roman Catholic Church located on the corner. There was a bit of snow and Constable Prince concluded that, as he could not take a chance on losing his footing, he would not have the option of continuing to back up once he reached the curb. He quickly looked to his left and right and also determined these were not avenues of movement for him because if he went in either direction members of the public who were standing around on the street could be in his line of fire if he had to discharge his weapon. The position he was in, walking straight backwards toward the curb, was in his assessment the only appropriate one given that his line of fire, should it be necessary, were Mr. Foster and the house behind.
[86] Constable Prince reached the curb. He knew he could not go any further so he again ordered Mr. Foster to stop and drop the knives or he would shoot. Shortly after that Mr. Foster’s brother also yelled for him to drop the knives or he was going to get shot. Then, according to Constable Prince, Mr. Foster reached with his empty right hand for one of the two knives in his left hand. Constable Prince testified that he felt he had no option but to discharge his weapon. He fired one shot. The two men were only about eight feet apart at this point. Mr. Foster fell to the pavement. Constable Prince and others ran towards him and calls were made immediately for an ambulance.
[87] Constable Prince was asked by his counsel how much time elapsed from the time he arrived on scene to the call being placed for an ambulance. He indicated it was something in the order of 38 seconds.
[88] Constable Prince was asked where he aimed his shot. He testified that officers are trained to shoot for the centre mass of the body as moving arms and legs are too hard to hit. That is what he did and that is where the bullet struck Mr. Foster.
[89] Constable Prince was asked about other options he felt were available to him. He felt he had none. He was equipped with pepper spray, but he and Mr. Foster were too far apart for it to be effective. Furthermore, Mr. Foster was armed and if the constable had let Mr. Foster get close enough to use the pepper spray and had missed, the constable would have been in grave danger. He could not use his baton for the same reason. He felt his only option was to remove the danger to himself and the public and the only way to do it was using his sidearm.
[90] The constable was then asked to comment on certain portions of the opinion of the plaintiffs’ expert.
[91] First, Constable Prince disputed Mr. Summerville’s conclusion that he and Constable Campbell were not communicating. He pointed to the radio interchanges between them and what they were both hearing from the dispatcher, and he also testified that officers are trained, once in an urgent situation, to communicate by way of their actions. In his view they were doing that perfectly with Constable Campbell focusing on Mr. Foster’s family and other members of the public while he engaged the source of the danger. There simply was no time for any meetings between the two of them without endangering the public on the street or one of the officers.
[92] On cross-examination Constable Prince agreed that when Constable Campbell arrived on the scene Mr. Foster was engaged in swearing at her and was armed with the knives, but she did not take her gun out nor did she issue any police commands. When it was suggested that that was so because she did not perceive any imminent danger and stayed calm, acting reasonably and finding out information, Constable Prince disagreed. He repeated that as the first officer on the scene, she was to gather what information she could, but his role was to distract and get the attention of Mr. Foster. He acknowledged that at no time prior to his arrival and his involvement had Mr. Foster left the porch area and headed towards Constable Campbell.
[93] Counsel then asked about the incident where he and Mr. Foster made eye contact through the window. Mr. Connolly suggested that this would have been an appropriate time to talk to Mr. Foster in a calmer voice, tell him to stay put, and suggest they have a discussion about what the problem was. Instead he ordered Mr. Foster to come outside once Mr. Foster opened the door, and Mr. Connolly suggested that this escalated the situation. Constable Prince disagreed. In his view once Mr. Foster headed toward the area of the front door, armed with knives and in the state he was in, the officer’s only reasonable option was to do exactly what he did.
[94] Constable Deanne Campbell also testified.
[95] Constable Campbell was also a First Class Constable with the Ontario Provincial Police on the day of this unfortunate incident. She confirmed that she was first to receive a call over her radio from dispatch about a family dispute at 90 Bonnechere Street. She testified that as the first one contacted and available to respond, she was the primary “contact officer” and Constable Prince, who confirmed his availability shortly after her, became the back up or “cover officer”. Her job on arriving at the scene would be to assess the situation, gather information, seek additional resources if necessary, and generally take control of the scene.
[96] She started on her way almost immediately and continued to receive input over her radio from both dispatch and Constable Prince.
[97] As expected Constable Campbell arrived at the scene first. She testified she brought her vehicle to a stop at the intersection of Lisgar and Bonnechere Street several residences south of the subject location. She did not make an exact note of the time. Her objective was to make a visual observation of the area in order to see if any kind of an impression could be formed as to what was going on. She told the court that she could see a male, who she later discovered was the plaintiff James Leighton, and others in the general area of 90 Bonnechere Street. She also heard Constable Prince on the radio around the same time announcing his location, which told her he was approximately two to four minutes from the scene.
[98] As she sat in her vehicle she observed Mr. Leighton coming towards her car. He appeared frantic and concerned. She decided to move her car down Bonnechere Street towards him. He provided some very general information and indicated that his brother Michael had come at him and his mother with a knife. Her initial plan had been to wait at the intersection for backup, but she now felt she had to take some action. Mr. Leighton’s input along with prior information that there were knives and possibly guns involved dictated she had to get nearer to the people on the street in case they needed her. It was also her hope that if Mr. Foster saw that there was a police presence, he might calm down.
[99] She drove slowly past 90 Bonnechere Street and at that point Mr. Foster came out the door with knives in both hands over his head. He yelled, “Come on boys”, or words to that effect. She shouted back that she was not a boy but a female officer, which was a deliberate action on her part. She explained how experience had taught her that the presence of female officers can often have a calming effect and de-escalate situations.
[100] She drove past the Foster home, pulled into the parking lot of the Catholic church, then came back out and parked on the east side of Bonnechere Street facing south a short distance north of 90 Bonnechere Street. She angled her police cruiser because, as she explained, officers are taught to position their vehicles in such a way that the engine block of the cruiser can form a protection for the officer should in fact guns be involved.
[101] From her vehicle she could see Mr. Foster still up on the porch of the residence looking, in her words, angry and aggressive. She saw no obvious signs of impairment. She assessed the risk as being high as she was faced with an aggressive, armed male who seemed anxious for confrontation.
[102] On exiting her police car she could see people on both sides of 90 Bonnechere Street. Across from her on the sidewalk near a lamp post was a woman whom she determined to be Diane Foster, Michael Foster’s mother. As soon as she exited the vehicle Mr. Foster stepped back inside and it was her plan to obtain more information from both Mrs. Foster and James Leighton. She started by calling Mr. Leighton over, at which time Mr. Leighton used words to the effect that he had never seen his brother like this previously and did not know what he was on. He also told her about the pellet gun that Mr. Foster had thrown on to the front lawn of their home. She testified that she went with Mr. Leighton when he retrieved the pellet gun, and that they brought it back and put it in the trunk of her car.
[103] At this point she headed back towards Mrs. Foster. She estimated approximately two minutes had elapsed since she arrived. As she was heading in that direction Mr. Foster stepped back outside the home and, at just about the same time, Constable Prince pulled up. Mr. Foster was yelling, continued to appear angry and aggressive, and had the knives in both hands. She observed Constable Prince exit his cruiser and take a step or two towards the residence. As he was doing that she observed him bring up his gun from his side, point it in the direction of Mr. Foster, and then yell at Mr. Foster two or three times, “Police. Don’t move – drop the knife. Drop the knife”.
[104] Mr. Foster yelled at Constable Prince and then stepped back into the residence. At that point, Constable Campbell overheard someone behind her say something about 90 Bonnechere Street having an exit on the side of the house towards the rear. She says she backed up a short distance from the position she had been in in order to establish a visual of this exit. When she looked back Constable Prince was now somewhat closer to the residence but not yet as far as the sidewalk. At this point Mr. Foster re-appeared, knives in hand.
[105] Her next clear recollection is observing Mr. Foster starting to approach Constable Prince, and Constable Prince starting to back up towards the rear of his cruiser. Throughout this he is continuing to yell at Mr. Foster to stop and drop the knives. Mr. Foster kept approaching Constable Prince in a continuous motion. To Constable Campbell’s estimation, based on the track Constable Prince and Mr. Foster were on, she determined that she, Mrs. Foster and Mr. Leighton could be in the line of fire so she yelled for them to move. Constable Prince got behind his car and close to the curb. Mr. Foster was getting closer. The next thing she knew she heard a bang. Mr. Foster dropped the knives, took a couple of steps back and then fell face forward.
[106] Constable Campbell was asked whether or not she saw Mr. Foster throw a knife at some point. She answered in the affirmative, but there was some confusion as to when that exactly occurred. She estimated that the knife when thrown landed about half way between them.
[107] The Constable was asked to estimate the time from Constable Prince’s arrival to the shooting. She felt it was in the range of 45 seconds.
[108] Constable Campbell was asked about her movements as Mr. Foster moved towards Constable Prince. She testified that she left the street light area where she was near Mrs. Foster and began to move towards Constable Prince’s cruiser in an arc like fashion. She had her hand on her side arm because she feared for Constable Prince’s life given that an angry, aggressive male was closing the gap between them.
[109] On cross-examination, Constable Campbell acknowledged that in chief she had indicated that Mr. Leighton told her Michael had come at both Mr. Leighton and their mother with a knife, whereas on discovery she had indicated she was told that Michael had come at their mother with a knife. Constable Campbell acknowledged that difference in her evidence but denied it was an attempt to embellish the threat level.
[110] Constable Campbell acknowledged that when Constable Prince arrived on the scene he did not ask for input from her. She also confirmed that she had no opportunity to supply any information to Constable Prince. She also acknowledged that she did not yell commands at Mr. Foster when she arrived on the scene nor did she draw her weapon. She stated that this was because there were people in the immediate vicinity of where she positioned her car. When counsel suggested that it was possible that if Constable Prince had never pointed his gun at Mr. Foster, or ordered him to come back out of the house once he went inside, the whole event might never have occurred, she indicated that there are millions of possibilities.
[111] The defendants called Joel Johnston as an expert. In brief Mr. Johnston was employed by the Vancouver Police Department from 1985 to 2013. During that time, amongst other things, he was responsible for researching, designing, and delivering training on the subjects of arrest and control tactics, use of force, and officer safety. For a period of time he was seconded to the British Columbia Ministry of Public Safety and Solicitor General as their use of force co-ordinator. After conducting an inquiry into his qualifications, I ruled that Mr. Johnston had the necessary education, training and qualifications to opine in the area of generally accepted use of force tactics by police officers.
[112] Mr. Johnston confirmed that he had reviewed an extensive list of materials prior to providing his opinion. In addition he sat through virtually all of the evidence at trial. From his perspective one of the most important pieces of evidence was the recording of the 911 call and the exchanges between dispatch and the police officers. That evidence, in his view, put him and the court as close to the incident as possible and within the context of the proper time sequence.
[113] Mr. Johnston testified that it was clear to him from the recording, and specifically the portions of it involving Constables Campbell and Constable Prince and the dispatch operator, that both constables were assessing the situation and planning ahead as they travelled towards the scene. For example, after being advised that there was violence involved and talk of weapons, they sought information as to whether anyone knew Mr. Foster. There were discussions as to who would arrive first and there were updates between the officers as to where they were vis a vis each other, etc. This type of discussion back and forth on the way to this type of call was, in Johnston’s view, consistent with their training. According to his count over the short duration of the radio exchanges between them, Constable Campbell made 14 broadcasts and Constable Prince made 7.
[114] This witness was asked about the roles of the “contact officer” and the “cover officer”.
[115] Consistent with other evidence, in the usual situation, the contact officer is the first on the scene who will get a visual overview and will then move on to doing such things as gathering information, requesting additional resources if necessary, interacting with people at the scene including a complainant, etc. There can be circumstances where the role is somewhat different because, of course, all these situations are fluid and fact driven. In his opinion what Constable Campbell did in her approach to the situation was exactly what she should have done in these circumstances.
[116] Constable Prince as cover officer was to engage the perpetrator depending on what he observed on arrival. In this case Constable Prince’s evidence was that when he arrived he saw Mr. Foster armed with knives and yelling forcefully at Constable Campbell. In Mr. Johnston’s opinion, as a result of these observations, Constable Prince’s job became to get Mr. Foster to focus his attention on him and away from both Constable Campbell and the bystanders, and that is exactly what Constable Prince did.
[117] Mr. Johnston was asked about the evidence that Constable Prince had his gun out when he got out of the car or very shortly thereafter. Mr. Johnston testified that that decision is again fact driven, and in this case Constable Prince had to be prepared in the event that Mr. Foster initiated a quick attack and began to run at someone. There were a number of people, including Constable Campbell and Mr. Foster’s mother and brother, in close proximity.
[118] Mr. Johnston was also asked about Prince’s immediate use of the “police challenge”. He felt that in the circumstances, this was quite consistent with the officer’s training and served a two-fold purpose. First, it instructed Mr. Foster in clear and concise language as to what he was to do to prevent this matter from going any further. Second, it served to advise both Constable Campbell and the public that he was in a position to cover them should anything happen.
[119] Counsel inquired about Constable Prince’s actions after the initial exchange between himself and Mr. Foster when Mr. Foster apparently exclaimed, “Come and get me”, and stepped back in the house.
[120] The first thing Mr. Johnston pointed out was that Constable Campbell, after hearing from someone that there was a side entrance towards the rear of the home, acted correctly in moving to a position where she could still keep an eye on the public but also observe that exit point. In terms of Constable Prince, it was in Mr. Johnston’s view entirely appropriate for the officer to move into position in order to see if he could visually observe Mr. Foster. In his view, given the earlier talk of a gun, if Constable Prince was unable to see Mr. Foster, the officer would have to have considered evacuating the area in the event that Mr. Foster was positioning himself with a weapon in the area, for example, of an upstairs window. That in his view was consistent with the training both officers would have received.
[121] Mr. Johnston was then asked about the moment when Constable Prince and Mr. Foster locked eyes, which apparently led to Mr. Foster opening the door and Constable Prince ordering him to step out. Again, in Mr. Johnston’s view, that was the correct procedure. He emphasized that it is very important to keep visual contact with someone in these circumstances and he disagreed emphatically with the suggestion by the plaintiffs’ expert that the police were better off with Mr. Foster inside. Mr. Johnston reiterated that Mr. Foster being out of sight left too many unknowns; the risk was lesser if the individual could be observed and attempts could be made to communicate with him.
[122] Mr. Johnston was clearly of the view that as Mr. Foster began to close in and the gap was narrowing between Mr. Foster and Constable Prince, the officer was quite correct to get himself in a position to shoot and to continue to order Mr. Foster to drop the knives. When Mr. Foster then threw one of the knives, and continued to close the gap, Constable Prince, in Mr. Johnston’s view, had no option but to do what he did.
[123] Mr. Johnston was asked to comment on the plaintiffs’ expert opinion that the officers fell below the standard when they failed to meet and formulate a plan.
[124] Mr. Johnston disagreed with that view. In his opinion if the officers had arrived on the scene and saw nothing going on, then perhaps there would have been an opportunity to exchange information and discuss options. That, however, was not the situation. When both arrived they were confronted with an armed man, agitated and aggressive, who they already knew had been involved in a confrontation. Time did not allow the luxury of a meeting and, in all these situations, an officer’s options are fact driven. In his opinion what the two officers did in this case over the very short period of time involved was consistent with best police practices.
[125] On cross-examination, Mr. Johnston agreed that, generally speaking, officers often face two scenarios on calls such as this. The first scenario is where someone is about to be killed or suffer grievous bodily harm and there appears to be no chance to negotiate or attempt some other course of action. In the second scenario, the situation is potentially dangerous, although that danger is not imminent, and there is therefore more time to make decisions. Mr. Johnston acknowledged that his entire opinion was based on the fact that they were dealing with the first of those two scenarios. He disagreed that he compartmentalized his opinion in that fashion; rather, he based his assessment of the actions of the officers on the facts that existed at the time events unfolded. Those facts came from some of the materials he had reviewed and, importantly, the evidence he heard during the trial. He also volunteered that it is not really possible to categorize situations in terms of general scenarios because they often overlap and one scenario can very quickly evolve into another as events unfold.
[126] It was also suggested to this witness that Constable Prince overreacted and that there was no better proof of that than the fact that Constable Campbell did not start barking commands or pull out her gun when she arrived and was confronted with the same circumstances. It was suggested that what she did was the best indicator of what was reasonable in the circumstances. Mr. Johnston disagreed. He reiterated that both officers had different roles and that Constable Prince’s involved engaging Mr. Foster. In view of that role he was the one that had to be ready should Mr. Foster make any sudden moves.
[127] Father Howard Chabot was called as a witness by the defence.
[128] Father Chabot is a Roman Catholic Priest and on the weekend of April 7th he was helping out at Our Lady of Fatima Church. One of the kitchen windows in the church rectory looked right in the direction of 90 Bonnechere Street.
[129] Late in the afternoon of the 7th Father Chabot’s attention was drawn to a commotion out on the street. He looked out the window, saw a number of individuals standing around on the street and observed a young man going in and out of the house across the street. The young man appeared to be agitated. Shortly after that he observed one police cruiser approach, then another a short time later.
[130] His attention was drawn to the second police officer whom he observed get out of his vehicle. As best as Father Chabot could recall, in very short order the second officer went towards the door of 90 Bonnechere Street and Father Chabot believes the officer touched the door handle and put his foot in the doorway area. Almost immediately, however, the officer stepped back and began to return in the direction of his cruiser. The witness could not recall if he walked forward or backward.
[131] Father Chabot left the window for a moment but then returned and at that point noticed the young man he had seen stepping in and out of the house coming forward with a knife. This individual looked, in Father Chabot’s words, “erratic”. He appeared to be “prancing forward”. It seemed to Father Chabot that the officer was attempting to vacate the scene.
[132] As the young man got near the police officer, the witness saw the officer raise his weapon and point it in the direction of the young man. The young man continued to come at the officer, moving unpredictably. The officer continued to back up toward the curb area and the slope behind it. Father Chabot observed the young man raise his arm above his shoulder and throw a knife in an arc like fashion. He did this with his right hand. He also observed there were other knives in his left hand and he saw the young man take a second knife from his left hand with his right hand and raise it over his head. A shot was then fired. It was his best estimate that the officer and the young man were only about twelve feet apart when the shot was fired.
[133] Four other individuals who made observations that day were called and gave evidence. While there were differences in their evidence as it relates to peripheral details, they were consistent on the major points. Specifically their evidence and observations were consistent with what Father Chabot had seen, namely that the officer was backing up, ordering the individual to drop the knives, and Mr. Foster was continuing to advance. The witnesses who were in audio range were also consistent in testifying that they heard the officer, towards the end of the confrontation, yell, “Drop the weapon or I’ll shoot”. Some testified they heard Mr. Foster invite the officer to go ahead and shoot him. In any event Mr. Foster kept coming and was shot.
The Position of the Parties on Liability
[134] It is the plaintiffs’ position that the law has clearly established that a civil action in negligence can be maintained against a police officer for acts or omissions committed while acting in the course of his or her duties. Officers have a duty of care in tort, and they submit that, in this case, both officers failed to meet the applicable standard of care, that of a reasonable officer in like circumstances.
[135] Mr. Connolly submits that the primary cause of Mr. Foster’s death was the negligent actions of the defendant Constable Prince. In his submission, through his actions the officer put in motion a series of events that led to Mr. Foster’s death.
[136] In counsel’s submission there are two types of scenarios a police officer may face. The first is a spontaneous, imminent, deadly force encounter where someone is about to be killed or grievously injured by someone engaged in violent and unlawful behaviour, where there is no time to escape and no opportunity to negotiate. The other scenario is a non-spontaneous, potentially dangerous situation, where time to make decisions exists, there is some distance from the threat, some physical cover available, and no one is in imminent jeopardy of death or serious bodily harm. In counsel’s submission, Constable Prince in bringing his car to a screeching halt, jumping out with his gun out of its holster, going into a stance and challenging Mr. Foster with no input whatsoever from his partner, turned a scenario two situation into a scenario one.
[137] He submits that Constable Prince had no plan, just a goal, and his negligence was compounded when Mr. Foster went back into the house and Constable Prince, rather than gathering more information or discussing alternatives, ordered Mr. Foster back outside.
[138] He also submits that when Constable Prince arrived on the scene, there were no reasonable grounds for him to believe that it was necessary to draw his handgun to protect against loss of life or serious bodily harm, and in consequence Constable Prince was in breach of s. 9 of Regulation 926 made under the Police Services Act, R.S.O. 1990, c P.15.
[139] Mr. Connolly submits that s. 25 of the Criminal Code is of no application in this case. He argues that while s. 25 justifies the necessary and proper use of force by anyone authorized or required to do so for the administration and enforcement of the law, the section has no application in the context of negligence.
[140] In terms of Constable Campbell, Mr. Connolly’s primary submission is that her failure to better communicate and insist that she and Constable Prince have a plan fell below the required standard.
[141] The defendants’ position is that Constable Prince was justified in what he did relying on the provisions of s. 25 of the Criminal Code. They submit that at the relevant time Constable Prince was engaged in an activity that he was authorized by law to do, he acted on reasonable grounds, and he used only as much force as was necessary. It is their position that the facts of this case establish that these three conditions, which must be met to rely on s. 25 of the Criminal Code, have been met.
[142] In terms of the plaintiffs’ argument that Constable Prince lost the protection of s. 25 because of his negligence, the defence submits that to succeed in that argument the plaintiff must establish that Constable Prince’s actions fell below the standard required of a police officer in these circumstances, and that his actions caused Mr. Foster to attack the constable in the manner he did. They submit that there is no cogent evidence to support that conclusion.
[143] In terms of Constable Campbell, the defendants submit that she did not draw her gun and had no involvement in Constable Prince’s decision to use force. She was not negligent in the actions she took; rather, the evidence, taken as a whole, is to the effect that both Constables Prince and Campbell did exactly what they should have done in these circumstances.
The Law
[144] Relevant to these proceedings is s. 25 of the Criminal Code, which provides, in part, as follows:
Protection of Persons Acting under Authority
- (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) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is limited or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
[145] The protection s. 25 affords is not absolute. A police officer must act on reasonable grounds and must not use unnecessary force. Further, if the force is intended or likely to cause death or grievous bodily harm, the officer is protected only if he or she believes on reasonable grounds that it is necessary for self-preservation or the preservation of a third party from death or grievous bodily harm.
[146] Also relevant to this case is s. 9 of Regulation 926 made under the Police Services Act, which provides:
A member of a police force shall not draw a hand gun or discharge a firearm unless he or she believes, on reasonable grounds, that to do so is necessary to protect against loss of life or serious bodily harm.
[147] The law is also clear that the justification created by s. 25 of the Criminal Code relieving a police officer of criminal or civil liability can be lost if it is established, on a balance of probabilities, that there was a breach of the standard of care, and but for that breach death would not have occurred.
[148] The applicable standard of care is that of a reasonable police officer in like circumstances. That standard was succinctly stated by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129 [Hill] at paragraph 69:
Second, as mentioned, the general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances. In cases of professional negligence, this rule is qualified by an additional principle: where the defendant has special skills and experience, the defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling”. (See L.N. Klar, Tort Law (3rd ed. 2003), at p. 306.) These principles suggest the standard of the reasonable officer in like circumstances.
Analysis
[149] I start with what is clearly the plaintiffs’ primary argument on liability, specifically that on the facts of this case they have established on a balance of probabilities that, “but for” the negligence of primarily Constable Prince, the death of Mr. Foster would not have occurred.
[150] To come to that conclusion the facts must establish, on balance, that the actions of Constable Prince fell below the applicable standard of care, or, in other words, a reasonable police officer in these circumstances would have acted in a different way with a different result.
[151] The conduct of Constable Prince on April 7, 2007, must be assessed through the lens of the circumstances that existed at the time he made the decisions he made. In this case the Court is greatly assisted in determining those circumstances as a result of the input provided by the many witnesses as to what occurred. That evidence establishes that on April 7, 2007, Constables Prince and Campbell were advised by their dispatch center that they were being sent to deal with an intoxicated individual who had been in a physical altercation with his brother. There was reference, as detailed earlier in these reasons, to the involvement of weapons. Specific to Constable Prince, when he arrived, he observed Mr. Foster who was armed with a number of large knives and by all accounts acting irrationally. As the officer approached the scene he also observed members of the public in close proximity to where Mr. Foster was standing, and observed Constable Campbell speaking with members of the public, consistent with her role as the contact officer.
[152] In these circumstances he decided it was prudent to unlock his sidearm and take his weapon out shortly after exiting his cruiser. In accordance with his role as cover officer he then had Mr. Foster focus his attention on himself by issuing police commands to drop the weapons. Mr. Foster did not comply and instead entered the house.
[153] The evidence establishes that Constable Prince then made the decision to approach the house in an attempt to determine if he could see what Mr. Foster was doing. He was able to see Mr. Foster through a window. They locked eyes. Mr. Foster then came outside, resumed screaming at Constable Prince and started on a deliberate path towards him, still armed with three large knives.
[154] I stop to analyze Constable Prince’s actions to this point.
[155] The plaintiffs, principally based on the evidence of their expert Steven Summerville, suggest that Constable Prince’s actions to this point fell below the required standard. They submit that the two officers had no set plan, Constable Prince made no effort to de-escalate the situation and, to the contrary, his actions escalated the situation to the point that they led directly to the final outcome.
[156] I disagree with their position.
[157] Mr. Summerville admitted that none of these situations are black and white. Each turns on its own facts. Further his opinion on the actions of the two officers on every critical point is directly challenged by the defendants’ experts. Their difference of opinion is not surprising. The standard of care in these cases is, of necessity, a flexible, over-arching standard that covers all aspects of police work and reflects its realities. In these cases, a number of choices may be open to an officer, all of which fall within the range of reasonableness. As stated by the Supreme Court of Canada in Hill, supra at paragraph 73:
I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made – circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. (See Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351; Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688 (C.A.); Klar, at p. 359.)
[158] In my view, all of the decisions Constables Prince and Campbell made were by any standard reasonable viewed in the context of the circumstances. There was no time for any meeting or further exchange of information prior to taking action. There were a number of individuals in reasonably close proximity to Mr. Foster who would have been very much in danger had he decided to charge at them and use one of the knives. Mr. Foster was clearly acting irrationally and out of control. A family member testified that they had never seen him like this previously. The situation was dangerous and called for immediate action. It must be remembered that the entire events on the day in question unfolded over the space of just a few minutes.
[159] Constable Prince was also justified in drawing his weapon. If it became necessary to use it, I accept he had to have it at the ready as time and space would not have allowed for him to go through the entire un-holstering process should Mr. Foster make a sudden move.
[160] I also accept as reasonable Constable Prince’s decision to approach the house to see if he could determine what Mr. Foster was up to. There had been talk of a gun. Both experts agreed that the potential involvement of a gun elevates the risk level of a situation. The evidence establishes that in this rural area guns, and in particular rifles, are common. Whether Constable Prince went to the sidewalk to attempt to make his observation or further than that, as suggested by only Father Chabot, is of no moment. Again it was reasonable for the officer to try to keep visual contact in the circumstances.
[161] Further, there is no evidence that persuades me that had Constables Prince or Campbell done anything differently, as suggested by the plaintiffs’ expert, it would have changed the way the matter unfolded.
[162] In terms of the events after Mr. Foster left the home and began on a determined path toward Constable Prince, the evidence is clear that Constable Prince’s actions were reasonable and necessary for his self-preservation and the preservation of others from death or grievous bodily harm. I am completely satisfied on the evidence that Mr. Foster was approaching Constable Prince aggressively from the time he started towards him, and his intentions became even more apparent when he threw the first knife, began to reach for the second with his dominant hand, and refused to comply with Constable Prince’s command that he drop the knife or be shot. Constable Prince had retreated as far as he could, the distance between him and Mr. Foster was diminishing, and Constable Prince had no option but to use his sidearm.
[163] I am satisfied on any standard of reasonableness that both Constable Prince and Constable Campbell acted properly in the exercise of their duties on the day in question and, in consequence, the case is dismissed as against all defendants.
Damages
[164] Despite the dismissal of this action on liability, it is incumbent on the court to quantify damages.
[165] In this action the plaintiffs’ claim for damages is pursuant to s. 61(2)(e) of the Family Law Act, R.S.O. 1990, c. F.3. That section provides:
- (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
Damages in case of injury
(2) The damages recoverable in a claim under subsection (1) may include,
(e) An amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.
[166] The words “loss of guidance, care and companionship” have been interpreted by a series of courts over the years. The definition of each was concisely summarized by the Ontario Court of Appeal in To v. Toronto Board of Education (2001), 2001 CanLII 11304 (ON CA), 55 O.R. (3rd) 641 (C.A.) at para. 36:
Companionship, as it was defined in Mason v. Peters in a fatal accident context, consists of the deprivation of the society, comfort and protection which might reasonably be expected had the child lived. Robins J.A. described it as “the loss of the rewards of association which flow from the family relationship”. Care was referred to by Linden J. in Thornborrow v. MacKinnon (1981), 1981 CanLII 1945 (ON SC), 32 O.R. (2d) 740 (H.C.J.) as including “feeding, clothing, cleaning, transporting, helping and protecting another person”. Thornborrow was cited with approval by Robins J.A. in Mason v. Peters. See also Huggins v. Ramtej, [1999] O.J. No. 1696 (Ont. S.C.J.) (Q.L.). In Thornborrow, Linden J. described guidance as including such things as education, training, discipline and moral teaching.
[167] Our courts have also consistently held that each case must be assessed in an objective and unemotional way in light of the particular family relationship involved.
[168] Plaintiffs’ counsel submits, and I agree with his submission, that the largest element of the claim based on the unique facts of this case is the loss of Michael Foster’s companionship, particularly to his mother. He submits there is an element of loss of care and guidance, but companionship is the major component.
[169] The evidence establishes that Michael Foster, in earlier years, was a happy and helpful individual. He was described as a good worker, albeit one who needed constant supervision. He liked to help people. He was pleasant, friendly and well mannered.
[170] Then he lost his father who was his mentor and closest friend. The evidence establishes that Michael became different after that. He no longer shared meals with the family, he began drinking excessively, and frankly had become someone people no longer wanted around.
[171] The great unknown is, of course, whether or not Michael would ever have returned to the person he was prior to the death of his father.
[172] I am satisfied that there has been a loss of care, guidance and companionship to all of the plaintiffs and that that loss is neither at the lowest or highest end of the scale. I assess damages at $60,000 for Mrs. Foster, and $20,000 for each of his brothers, for a total of $100,000.
Costs
[173] There were no submissions as to costs. If it is necessary I will receive some brief written submissions, but it occurs to me that in the tragic circumstances of this case it is not a proper one for costs.
Mr. Justice James E. McNamara
Released: April 13, 2015
CITATION: Foster v. Prince, 2015 ONSC 265
COURT FILE NO.: 09-44604
DATE: 20150413
BETWEEN:
DIANE VISNESKI FOSTER, NICHOLAS FOSTER, and JAMES LEIGHTON
- and -
CONSTABLE JAMES PRINCE, CONSTABLE DEANNE CAMPBELL, SERGEANT DAVE MACDONALD, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE
REASONS FOR JUDGMENT
McNAMARA R.S.J.
Released: April 13, 2015