CITATION: Koper v. HMTQ et al., 2016 ONSC 2319
COURT FILE NO.: 13-40455
DATE: 2016-04-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LESLAW KOPER
Neil Jones, for the Plaintiff
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, JOHN KRUG, PAUL DOES, MORLEY McGUIRE and MURRAY deRUITER
Jim Smith and Eric Wagner, for the Defendants
Defendants
HEARD: November 23, 24, 25, 26, 27, 30 and December 1, 2015
REASONS FOR JUDGMENT
The Honourable Mr. Justice M.D. Parayeski
[1] The plaintiff was bitten by a police dog when he was being arrested. He acknowledges that the police had reasonable and probable grounds to arrest him. He sues in respect of injuries which he says he sustained as a result of the incident. The defendants are, variously, the employer of the police officers involved in the incident and the officers themselves.
[2] Mr. Koper asserts that the police used force in arresting him (via the dog) when, in fact, no force whatsoever was necessary.
[3] The defendants assert that they were acting reasonably when they chose to deploy the dog and throughout. Although Mr. Koper is noted as having told his general practitioner shortly after the incident that the police had ordered the dog to attack him, that avenue was not pursued in closing submissions, and I assume that it is not being advanced. In any event, there is no substantive evidence of an attack on command having occurred.
Factual Background
[4] Mr. Koper and his brother enjoy the hobby of pigeon racing. On the day in question, they were riding in a van owned by their sister. With them were a number of pigeons. The intention was to drive to a rural location in the Caledon area and to release the pigeons. The pigeons would then fly back to their roost at Mr. Koper’s home in Hamilton. The brother testified that he was driving, although little turns on this. The van was observed speeding. The police endeavoured to stop it. Rather than stopping, the van drove off and turned into a private laneway. Once down the lane, it appeared to have come to a stop when it made contact with a pile of soil or gravel. When the police caught up with it, there were no human occupants in it.
[5] Mr. Koper testified that when the van came to its stop, his brother ordered him to get out and hide. Mr. Koper was confused by the order, but followed it. He wandered off from the van’s immediate vicinity and crouched or sat down in some tall grasses and brush to conceal himself.
[6] The brother testified that, for his part, he walked away down the lane and along the roadway until he eventually stopped and telephoned a friend who picked him up and drove him home. The brother offered no explanation whatsoever for this bizarre conduct.
[7] In the meantime, the police contacted the van’s registered owner. While it is not entirely clear what was communicated to the officers on the scene, they reasonably formed the opinion that the van had been stolen. They called in a canine handler and his dog to assist in locating the missing driver and/or occupant or occupants of the van.
[8] I accept that calling in canine assist was appropriate for the reasons provided by the defendants: they did not know if the fleeing driver and/or occupant or occupants were armed and the area afforded significant opportunity to hide in brush and long grass. Officer safety was a legitimate concern. It is only in hindsight that Mr. Koper came to be known as being unarmed and benign. Indeed, in his closing submissions, counsel for Mr. Koper did not dispute that it was appropriate to use a police dog to track on this occasion.
[9] Essentially, a canine search proceeds as follows. The dog is put on a 20 foot leash and sets off with his handler doing his best to follow. There are armed officers who accompany the dog and handler in order to provide them both with protection. Sometimes, the handler loses sight of the dog as it attempts to track the subject or subjects of the search. When the subject is first observed by an officer, he yells “contact” to alert the others. If the dog comes upon the subject before its handler does, it is trained to bite the subject and hold him or her until such time as ordered to release its grip by the handler. If the dog and handler come upon the subject at the same time, the handler orders the dog to stand by.
[10] Although there is some understandable discrepancy regarding small, unessential details, it appears that, in the present case, Officer Does saw Mr. Koper first. This occurred when the two were estimated at being three metres apart. Officer Does says that he pointed his gun at Mr. Koper and instructed him to put his hands up. Mr. Koper, again according to Officer Does, moved someone backward. With seconds, the dog appeared and bit Mr. Koper on the arm. The dog’s handler, Officer de Ruiter, arrived a second or a few seconds later and ordered the dog to release Mr. Koper. Officer McGuire’s evidence confirmed most of this.
Analysis Re: Liability
[11] The dog’s handler testified that the dog did exactly what it was trained to do, which is to bite and hold the subject until the handler arrives and gives the order to release. This, I was told, is in keeping with the dog handling policy of police forces across the country.
[12] On cross-examination, Officer de Ruiter acknowledged that this policy has the potential to result in a wholly innocent subject, such as a lost child for whom a search is being conducted, being bitten and held by the dog until its hander arrives.
[13] I agree with the following propositions put forth on behalf of the plaintiff:
when police officers effect an arrest, they must not use unnecessary force;
when force is used in carrying out an arrest, the onus shifts to the police to demonstrate that the force used was reasonably necessary in the circumstances.
[14] The police officers agreed that they are trained to continually assess the need to use force and the degree of force to be applied, if any, as an encounter with a person about to be arrested unfolds. Officer de Ruiter, the dog handler, recognized that because of the policy described above, to some extent he had decided in advance, i.e. upon letting the dog commence its tracking, that some force might be justified. Dogs do what they are trained to do. Somewhat shockingly, they appear to care very little for what judges applying hindsight in calm circumstances might think.
[15] As mentioned above, the dog in this case followed its training, and accordingly, the policy which sets the parameters of that training. The plaintiff asserts that the policy is flawed and is not reasonable. He suggests that instead of a “bite and hold” practice, when the subject is located by the dog before its handler sees the subject, a “stop and bark” methodology would be more reasonable. Such a policy would have the dog upon seeing the subject stop moving and bark to alert its handler that it had seen the subject. The plaintiff also argues that a shorter leash would reduce or eliminate the instances when a dog comes upon a subject before its handler does.
[16] Of course, perfect compliance with a practice that is in accordance with a policy might still constitute negligence if the policy itself is so unreasonable as to make it so. However, I am not prepared to find that the policy (using the “bite and hold” technique and 20 foot leashes) is unreasonable in the absence of expert evidence to the effect that the “stop and bark” technique and using shorter leashes would:
be practical;
would not unduly endanger either or both the officers or the dog itself. Not all subjects being searched for are as harmless as Mr. Koper proved to be.
[17] The current practice appears to work well in the overwhelming majority of cases. The police are mandated by the province to have canine units. There are few reported cases, if any, that address these issues. If the policy were not working well, it is likely that litigation would have manifested itself long before this point in time. What the police did in these circumstances is reasonable, as is the policy.
[18] Taking all of the evidence and circumstances into consideration, I find that the defendants are not liable to Mr. Koper. Had I found any liability on the defendants, I should have assessed Mr. Koper’s contributory negligence at 25 percent. His unexplained and frankly odd conduct in following his brother’s instructions plainly put him into at least potential harm’s way.
Damages
[19] I shall proceed to address damages notwithstanding my ruling on liability.
[20] Mr. Koper testified at trial that the dog bit him on the leg and right arm. Although the initial emergency note or notes at the Headwaters Health Care Centre where Mr. Koper attended after his arrest mentions “2 lacerations and 6 puncture wounds in his right biceps area”, a photograph said to have been taken just a few days later show bruising and what are likely puncture wounds on the right triceps. The photographs also show that some sutures were applied.
[21] The wounds healed such that only minor scarring is visible. Right arm movement, as demonstrated in the courtroom when Mr. Koper was displaying his scars, appeared quite normal and fluid.
[22] Dr. Tunks testified that nerve bruising in the right arm was confirmed by an EMG done in September of 2011, i.e. some two months’ post-incident.
[23] There are ongoing complaints of pain in the right arm and some numbness in the right hand. Dr. Tunks testified that such ongoing pain is likely caused by hyperalgesia, which he described as pain being felt even though the originally injured nerve has recovered. He likened it to “pain memory”.
[24] Mr. Koper has also being diagnosed with post-traumatic stress disorder.
[25] There is also some right shoulder pain that Mr. Koper associates with this incident. He also complains of right hip pain.
[26] Mr. Koper’s sister and brother testified that he is more depressed than he was pre-accident, and is unable to help around that house as he had done before, and has lost interest in social activities and pigeon breeding and racing.
[27] What complicates this assessment considerably is Mr. Koper’s extraordinary medical history both pre-incident and post-incident.
[28] In 1998 Mr. Koper was involved in a serious motor vehicle accident. As a result, he suffered depression, headaches, leg pain and chronic pain for which he was taking considerable pain medication. This pain was such a problem that when he was examined at Headwaters on the day of the incident, he was found to be wearing a Fentanyl patch. He did not have a prescription for Fentanyl. He says that the patch so found was the first he had tried and that he had obtained it from “a friend”.
[29] Dr. Golda, Mr. Koper’s family physician, testified at trial and was surprised to learn of the evidence of Mr. Koper’s siblings regarding his pre-incident activities. These activities did not match with the history being given to Dr. Golda by Mr. Koper himself. Dr. Golda stated that he had been encouraging Mr. Koper to increase his activities prior to the incident.
[30] Although Mr. Koper’s right shoulder pain was asymptomatic pre-incident, the evidence is that he had both osteoarthritis and an impingement in that joint. Accordingly, the incident may have accelerated symptoms, but they may have occurred regardless.
[31] In addition, Mr. Koper twice fell into a 10 foot deep excavation outside his home post-incident. He lost consciousness during one such fall. Dr. Golda noted that the injuries from a fall predating a visit on January 9, 2014 as “massive”.
[32] Dr. Tunks testified that in his opinion the right hip pain is not as a result of the dog incident.
[33] On balance, I assess Mr. Koper’s general damages flowing from this incident at $40,000. The cases cited to me by the defendants in support of their significantly lower figure for that head of damages are not in keeping with current assessments in this province.
[34] If the parties cannot agree upon the issues of costs, they may make brief written submissions to me in that regard. Each set of such submissions, if any, shall be not more than three double-spaced typewritten pages in length, not including a costs outline. The defendants’ cost submissions are to be served and forwarded to me on or before May 6, 2016. The plaintiff’s costs submissions are to be served and forwarded to me on or before May 20, 2016. All such submissions are to be forwarded to my attention at the John Sopinka Court House in Hamilton.
Parayeski J.
Released: April 8, 2016
CITATION: Koper v. HMTQ et al., 2016 ONSC 2319
COURT FILE NO.: 13-40455
DATE: 2016-04-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LESLAW KOPER
Plaintiff
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, JOHN KRUG, PAUL DOES, MORLEY McGUIRE and MURRAY deRUITER
Defendants
REASONS FOR JUDGMENT
MDP:mw
Released: April 8, 2016