Housser v. Niagara Regional Police

CITATION: 2016 ONSC 589

COURT FILE NO.: CV-3446-11

DATE: 2016-01-25

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dale Housser, plaintiff

AND: Niagara Regional Police Services Board and Scott Kraushar, defendants

BEFORE: Mr Justice Ramsay

COUNSEL: M. Hoy for plaintiff; M. Cruickshank for defendants

HEARD: January 17 – 21, 2016 at Welland

ENDORSEMENT

[1] The plaintiff is suing the Niagara Regional Police Services Board and Sgt Scott Kraushar for assault and negligence. After a chase, Sgt Kraushar pulled the plaintiff out of his car and pushed him up against the car and handcuffed him behind his back, which is alleged to have caused some physical soreness and a serious psychiatric injury.

The case

[2] The plaintiff was a volunteer for the Canadian Cancer Society. On March 23, 2009 the plaintiff was driving Carolyn Szacas, a patient, from radiation treatment in Hamilton home to Welland. Sgt Kraushar, in suit and tie, was driving from his office in St Catharines to a meeting in Welland. He took an unmarked police car. The car was equipped with flashing white strobe lights in the front headlight assembly, red strobe lights mounted on the front visor, red flashing lights at the rear and a siren. The plaintiff overtook Kraushar on the 406. Kraushar thought he was going too fast, so he paced him. Kraushar says the plaintiff was driving 140 km/h in a 100 km/h zone. The plaintiff says he was not speeding at any time.

[3] Kraushar activated his lights and siren and pulled beside the plaintiff, first gesturing at him to slow down, and then pointing at him to pull over. Unfortunately, not all the emergency lights activated. The master switch that Kraushar activated should have turned on all the emergency lights. The white strobe lights in the front headlights and the red strobe lights at the rear did activate, but the red strobe on the front visor did not. The plaintiff did not slow down or pull over. Kraushar pulled into the plaintiff’s lane, which by now was the second lane, and decelerated without braking. Traffic then forced him to brake, which he did. The plaintiff passed him. This may have happened twice. Kraushar decided that he was not going to continue the pursuit. Instead he would follow the vehicle with lights and siren still operating and call for help. The vehicle slowed down to the speed limit and Kraushar followed it to the end of the 406, when Sgt Flegg of the Niagara Regional Police, in full uniform and driving a marked police cruiser with emergency lights activated, approached from the south. The plaintiff pulled over onto the shoulder. Kraushar pulled up behind and Flegg pulled up in front.

[4] Sgt Kraushar and Sgt Flegg approached the plaintiff’s vehicle. Kraushar ordered the plaintiff to get out of the car. The plaintiff demanded that he identify himself. Kraushar told him who he was and told him that he was under arrest for failing to stop. The plaintiff turned to Flegg and asked whether Kraushar was a real police officer. Flegg told him that he was. The plaintiff still did not get out of the car, so Kraushar opened the door, put his right hand on the plaintiff’s left arm at the underarm and pulled him upward. The plaintiff got out of the car but pulled away from Kraushar. Kraushar turned him around and pushed him onto the side of the car, just behind the driver’s door. He asked Flegg for handcuffs. Flegg held the plaintiff’s left arm and Kraushar held his right, and Kraushar applied the handcuffs. The officers walked the plaintiff to Flegg’s cruiser and put him into the back seat. Flegg double-locked the handcuffs so that they would not tighten. All this time the plaintiff protested that he did not know that Kraushar was a police officer. He told Flegg that there had been stories in the media about a man posing as a police officer stopping cars. He was right. There had been. He also said that Kraushar’s vehicle displayed no red lights at the front. He was right about that, too.

[5] When the officers checked the lights, Kraushar decided not to charge the criminal offence. Flegg removed the handcuffs and the plaintiff was detained in the cruiser until Kraushar filled in and served him with a speeding ticket for going 130 km/h in a 100 km/h zone. Kraushar reduced it from 140 to take into account any issue that could be raised about the accuracy of his speedometer and because the fine for going 40 km/h over is quite steep. Kraushar did not know to have his speedometer verified within five days, so the provincial prosecutor declined to prosecute.

[6] A week later the plaintiff saw his cardiologist. The plaintiff had undergone cardiac surgery the previous October. That surgery required that his sternum be separated and then put back together with clips. He complained of tenderness in his chest and asked the doctor to check for damage to the sternum. The doctor found no damage and told the plaintiff to take analgesics, which he did for a week or so.

[7] The plaintiff claims damage for pain and suffering, including psychological injury in the form of Post-Traumatic Stress Syndrome.

[8] So much was made of the way the pursuit was conducted and whether Kraushar was identifiable as a police officer that I have to remind myself not to be distracted from the essential issues. The issues are whether the arrest was unlawful or negligent and if so, what harm ensued. It is obvious without making any findings of credibility that Kraushar had reasonable grounds to believe that the plaintiff was evading a police pursuit contrary to s.149.1 of the Criminal Code. What occurred on anyone’s account amounts to a pursuit by a police officer within the meaning of the Code. It was also a pursuit within the meaning of the Niagara Regional Police General Orders, but Kraushar quickly scaled it down in essential compliance with the General Order, which recommends against pursuit by an unmarked car unless no marked car is available. In that sense Kraushar was right to say that it was not a pursuit, and when he did so in his notes and his testimony I do not think that he was trying to mislead.

[9] Here, whether the pursuit was lawful or not depends on whether Sgt Kraushar observed the plaintiff speeding. If he did, he had the right under the Highway Traffic Act to stop the plaintiff. Kraushar says that he observed the plaintiff to be speeding and that he tested his hypothesis by pacing the vehicle. The plaintiff and his passenger say that he was not speeding.

The facts

[10] First, I can think of no reason why Kraushar would have tried to stop the plaintiff if he had no reason to believe that he was speeding. Kraushar had a ticket book because all plain cars have them, but he had better things to do. His reason for engaging with the plaintiff rings true to me. He thought that public safety and his duty required him to do something. He had no way to know that his red front strobe lights were not operating. I do not think that Kraushar was negligent for failing to check his lights before setting out in the car. There was no reason to do so.

[11] Nor do I think that Kraushar was negligent in the operation of the lights. They are operated by a single switch. Most of the lights worked, so he must have operated that switch. After the incident Kraushar turned the lights off and on again and they all worked. I understand his decision not to send the unit to the mechanics. Like doctors, mechanics are well known to find it difficult to diagnose intermittent problems.

[12] I do not think that the police were negligent for not telling Kraushar that someone from the vehicle called 911 saying that they were being followed by someone they did not take for a police officer. In Niagara Region, when you call 911 the telephone is answered by a Niagara Regional Police operator. In this case when Mrs Szacas called 911 she told the operator “there’s somebody stalking us with his flashers on it’s a regular car.” That is as far as she got when the operator ascertained that they were on Highway 406 and connected Mrs Szacas with the Provincial Police. The Niagara Regional Police call centre had no way of knowing that the stalker was acting like an unmarked police car. Nor did they know that Sgt Kraushar was following the plaintiff until Kraushar called them.

[13] Other than a few minor errors in chronology in his notes, Kraushar’s evidence was unexceptionable. I found no reason to doubt what he said.

[14] On the other hand I find the evidence of the plaintiff difficult to rely on for many reasons.

[15] First, he has a tendency to speak in hyperbolic terms. He said that he thought an unbalanced person was trying to kill him and he spoke of Kraushar’s driving as “a Pitt manoeuvre or whatever he was trying to do.” Even the plaintiff’s version of Kraushar’s attempted stop or stops, which is rather more severe than Kraushar’s, bears no resemblance to an attempt to kill someone. Nor does it bear any resemblance to the Pitt manoeuvre, in which a police car knocks a pursued vehicle into a spin. I do not accept that Kraushar pulled ahead of the plaintiff straddling the two southbound lanes and then suddenly braked dangerously. Mrs Szacas would have said so in her testimony. She said nothing about such a thing and on the telephone to the OPP she mentioned in passing only that the guy cut them off. Mrs Szacas did not have a good memory of the event, but I might have expected her to remember almost being killed.

[16] The plaintiff testified that he did not know that Kraushar was a police officer until he served him the speeding ticket. That cannot be true. Before giving him the ticket, Kraushar had handcuffed him and taken him to a marked police car accompanied by a uniformed police officer. In fact, the plaintiff must have known that Kraushar was a police officer before he was arrested. By the time he was pulled out of the car, Sgt Flegg was on scene, uniformed and in a marked cruiser. Kraushar did not flee from Flegg. He joined Flegg. When asked, Kraushar told him that he was a Niagara Regional Police sergeant and Flegg confirmed that to the plaintiff. Only then was he arrested.

[17] It is hard to understand why the plaintiff did not know that Kraushar was a police officer even earlier. Any sensible person would have, and in fact, many others on the road did. They pulled over. Some of them had probably read about the police impersonator. The plaintiff did not see any red lights at the front of Kraushar’s vehicle, but when Kraushar pulled in front of him, he must have seen the red lights flashing at the rear.

[18] He also heard the siren. He said that he took it for a car alarm. I heard the siren, too. During the ride, the plaintiff had his passenger call 911. On the audio recording of the call, the siren is perfectly audible from within the plaintiff’s vehicle. It wails as a police siren does. It does not sound like any car alarm I have ever heard. I found the plaintiff’s explanation on this point to be contrived and dishonest. One wonders whether the plaintiff realized that this was a real police car when Kraushar pulled in front of him and his rear red strobes became visible, but decided to pretend ignorance out of embarrassment. Either way, it speaks poorly of his credibility. If the plaintiff cannot interpret what he perceives in a reasonable way it is difficult to rely on his version of the events. White strobe lights, a siren and a full-size American sedan were enough clues for everyone else. If they were not enough for the plaintiff, that fact hardly inspires confidence in his reliability as a witness.

[19] I would add that I believe Kraushar’s evidence that when trying to signal the plaintiff to stop, he showed him his badge. Mrs Szacas said incorrectly that Kraushar showed him the badge after the stop. I think she saw it earlier and is confused as to the timing and sequence on this point.

[20] Neither does the plaintiff’s conduct after the event inspire confidence. He actually did well that day. The police accepted his story and decided unconditionally not to charge him criminally. They knocked the speeding ticket down to a $220 set fine. But in a written request for disclosure in his defence of the speeding ticket the plaintiff accused Kraushar of obstructing justice and breach of trust without any reason to do so.

[21] In the trial before me the plaintiff was at pains to point out two errors Kraushar had allegedly made, as if they were of any importance. First, on the ticket Kraushar wrote the plaintiff’s birthdate as having occurred in 1965, not 1955. Kraushar quickly corrected that on the court copy and it was entered correctly into the computer. It made no difference to any issue in this court or POA court.

[22] Second, Kraushar allegedly misspelled the plaintiff’s address on the ticket. He is said to have written the “I” in Bertie Street as a “T”. Kraushar hand wrote the address in block capitals. He uses serifs. So the “I” has a little leg on top and on bottom. The leg on the bottom is written over the printed line on the form. This gives the “I” the superficial appearance of a “T”. Closer examination of both copies, which I accomplished in a few seconds, shows that the bottom leg of the “I” is actually there. As if anyone with an ounce of sense would care. I find it difficult to rely on the evidence of someone with such an unrealistic view of the world.

[23] Mrs Szacas was no more reliable. She said that she knew that the plaintiff was not speeding because she checked the speedometer occasionally. But who does that? It rings false. I do not believe her anyway because it is obvious that she did not remember much about the events. It is equally obvious that she is emotionally invested in supporting the plaintiff.

[24] Mrs Szacas initially told me that there was no siren. But not only was a siren audible on the tape of the 911 call, Mrs Szacas spent some time talking about it with the operator. The following transpired during the call:

Szacas: He’s got a siren on yes he’s still got his siren on this guy

Dispatcher: It’s an off- it so it’s an officer

Szacas: No it’s not it’s a regular guy

Housser: No red on the (inaudible)

Szacas: No red on the car it doesn’t say police but he’s flashing and

Dispatcher: Flashing his high beams or what

Szacas: Yeah the back of the front of both I never saw a car with this lights I’m with the Cancer

Dispatcher: Does it have a siren

Szacas: Yeah it’s got a siren

Dispatcher: Then it’s an officer did you pull over did you get out of their way

Szacas: Are you kidding it’s not it’s not a police car looks like some

Dispatcher: But they have unmarked vehicles sometimes

Housser: We’re going to the police station

Szacas: We’re going straight to the police station

Dispatcher: OK what police station are you going to

Szacas: Holy sh OK oh what the oh OK now there’s something wrong here

Dispatcher: Yeah, it’s a it’s a police officer

Szacas: There’s the police now oh that’s the police now yeah

Dispatcher: It’s a police officer

Szacas: OK OK OK OK OK I’m sorry do I hang up now then

Dispatcher: No what’s your name

Szacas: Oh

Dispatcher: Are you pulling over for them

Szacas: I’m yeah yeah yeah we’re on the side already

Dispatcher: OK what’s your name

Szacas: Carolyn Szacas S-Z-A-C-A-S Holy Jumpin Jehoseph

Dispatcher: How do you spell your last name

Szacas: S-Z-A-C-A-S (Male voice in background: Get out of the car)

Dispatcher: Is that an officer

Szacas: Huh

Dispatcher: Is the officer there

Szacas: Yeah Holy Geez why are they yelling at this guy

Dispatcher: OK I’m gonna let you go

Szacas: Thanks Bye.

[25] In cross-examination Mrs Szacas suggested that the siren sounded like a child’s toy. I heard it. It did not. It sounded like a real police siren, even from inside the car, from where the audio tape was recorded. At this point in my mind she crossed the line from a confused witness to a biased one.

[26] Mrs Szacas saw the flashing lights and heard the siren, but she was unwilling to accept the obvious until she saw Sgt Flegg’s cruiser. To be fair to her she was suffering from cancer and she had just undergone treatment. She must have been exhausted. And all along the plaintiff was telling her that something was wrong. It is not hard to understand how she came to accept his suggestion.

[27] Mrs Szacas had Kraushar pulling up in front and Flegg to the rear, which was wrong.

[28] Mrs Szacas testified that Kraushar slammed the plaintiff into the vehicle with an awful crack. But there was no crack. The cardiologist told us that nothing cracked. At most she could have heard a soft thump. She became very emotional when talking about the plaintiff, who had been so kind to her, being arrested “like a common criminal.”

[29] The plaintiff and his passenger said that Kraushar’s order to get out of the car was given in an angry tone of voice. I heard the command on the tape. It was not angry. It was loud and assertive, but the pitch dropped at the end. To the extent that I could detect undertones, they suggested imprecation more than anything else, as if Kraushar were saying “Please just get out of the car so we can get on with it.”

[30] I accept that the pursuit and arrest happened the way Kraushar said they did. As far as the arrest is concerned I also have the benefit of Sgt Flegg, who was not as worked up with adrenaline as Kraushar. To the extent that there are differences between Kraushar’s and Flegg’s accounts – and they are minor – I accept that Flegg has it right, except that Flegg did not remember whose handcuffs were used. I accept Kraushar’s recollection that they were Flegg’s. I attach no importance to this detail.

Conclusion on liability

[31] The arrest was lawful. The plaintiff was speeding and Kraushar had reasonable grounds to believe that the plaintiff was intentionally evading police. I reject the plaintiff’s assertion that Kraushar twisted his arm. What happened is that the plaintiff failed to get out of the car when ordered, so Kraushar pulled on his left underarm. Once on his feet, the plaintiff pulled away so Kraushar pushed him onto the car and handcuffed him with minimal force. The only reason any force was necessary was because the plaintiff was being so difficult. No assault or negligence was involved. I find for the defendants and dismiss the action.

Damages

[32] I am also required to assess damages.

[33] The force used was not enough to cause physical injury. It might have caused tenderness to the chest and shoulder for a day or so.

[34] The significant issue under this head is damages due to psychological harm. The injury of which complaint is made is Post-Traumatic Stress Disorder.

[35] The plaintiff said that after the incident, he lost all interest in his job and his hobby. He was a retired inspector of airplane parts, but he taught at Niagara College, he had a photography business, he was a Sunday school teacher and he volunteered at the Cancer Society and elsewhere. He gave all this up to focus on the speeding ticket and then the lawsuit. He left his wife of 40 years and moved to Saskatchewan to work for his brother. He has anxiety when he sees a police car or sometimes even a blue car or a burly man (like Kraushar, apparently). He has intrusive memories and often cannot get back to sleep after waking up in the night for a call of nature. All the things that gave him joy no longer do.

[36] On the other hand, after the accident he continued teaching at Niagara College for a year and a half and volunteering with the Cancer Society for a period of time. He moved to the province of his birth and went from semi-retirement to a full time job. The job involves driving. The plaintiff has remarried. He has never sought psychological or psychiatric treatment or counselling.

[37] Dr Silver, the plaintiff’s expert, testified that the plaintiff shows residual signs of having had Post-Traumatic Stress Disorder. Although he cannot give a strong opinion as to whether the disorder existed shortly after the incident, it probably did. He cannot be more certain because he did not see the plaintiff until 2013. The residual symptoms in question are

a. Intrusive thoughts,

b. Change in mood,

c. Not feeling well,

d. Irritability,

e. Hypervigilance, and

f. Anxiety.

[38] More important to Dr Silver is the effect of the plaintiff’s peculiar personality sub-structure. According to Dr Silver, the plaintiff is rigid and obsessive. He cannot swing with things. He has difficulty with losing control over a situation. He is a person for whom everything has to be just so. The effect of the incident, therefore, was much worse for this man than it would be for many others.

[39] Dr Debow, for the defence, testified that the plaintiff has some symptoms in keeping with consideration of PTSD but that he does not fulfil the diagnostic criteria for this condition.

[40] According to Dr Debow, diagnosing PTSD is not simply a question of checking off the criteria from the DSM-IV (or DSM-5, if one uses that diagnostic tool). Clinical judgment is required. No doubt that contributed to Dr Silver’s hesitation to offer a strong opinion about PTSD. The clinical examination is important, and neither expert was able to do a clinical examination until several years after the event. At the end of the day, the two experts are not all that far apart. Either as Dr Debow says the plaintiff did not develop PTSD, or as Dr Silver says he did but he suffered mainly as a result of the impact of the incident on his rigid, obsessive personality.

[41] Both experts were impressive and accomplished. Dr Silver’s opinion suffers only from his reliance on facts that I do not accept.

[42] I find significant the plaintiff’s ability to find a new career and a new domestic relationship. I also take into account the evidence of his wife of 40 years, who seemed still to have regard for him. She testified that after the incident he withdrew and quit his job and other activities. She did not observe wakefulness or recurrent anxiety triggered by evocative situations. She did not discuss such things with him, although he continued to discuss many things with her for a significant period of time. What she saw was a man who changed his interests of 40 years and moved away from the family that had formerly been so important to him. I do not accept the plaintiff’s assertion that he suffered from wakefulness, hypervigilance, mood problems and recurrent episodic anxiety triggered by evocative situations. He would not likely have been able to drive for a living and find and maintain a new domestic relationship with those burdens.

[43] I think it much more likely that the plaintiff’s life changed for reasons that were not caused by anything the defendants did. The plaintiff had just survived a life-threatening health crisis. He had expressed dissatisfaction with his marriage for some time. Those are both factors that could cause a middle aged man to reassess how he wanted to spend the rest of his life.

[44] In any event, the extreme reaction of an obsessed personality is not foreseeable and is too remote to constitute causation: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114.

[45] The reaction of the plaintiff to the event may well reflect his peculiar personality structure, but his personality does not rob him of the power to make decisions. Essentially he exchanged his family for a new one and he discarded his old activities for a new career and his new hobby of avenging himself on the police. These are choices. They are not the product of a psychological disorder, much less loss caused by the defendants.

[46] If I had found the arrest to be unlawful, I would have awarded $5,000 damages for unlawful arrest to compensate the plaintiff for the insult to his person and dignity. I do not believe the plaintiff when he says that he saw people he knows drive by as he was being arrested. He gave no specifics as to their identity. I would have added $5,000 in punitive damages if I had found that the force used to effect the arrest was excessive. I would not have found that PTSD or any other psychological injury was caused by the defendant or defendants.

[47] The parties may make brief written submissions to costs to which any offers to settle and a bill of costs may be appended. The defendant’s submissions are due within seven days of release of this endorsement. The plaintiff’s are due within seven days thereafter.

J.A. Ramsay J.

Date: 2016-01-25