Franco Albanese v. Adam Franklin et al., 2016 ONSC 6479

CITATION: Albanese v. Franklin et al., 2016 ONSC 6479

COURT FILE NO.: SR 9673/08

DATE: 2016-11-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRANCO ALBANESE

Margaret A. Hoy, for the Plaintiff

Plaintiff

• and -

ADAM FRANKLIN, ROBERT KISH, GRAEME ORR, THE REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD

Mickey Cruickshank, for the Defendants

Defendants

HEARD: April 11-14, 18-20, 22, 2016 in Welland

REASONS FOR JUDGMENT

[1] This was a simplified procedure matter; therefore relief is capped at $100,000.00: rule 76.02(1). There are no claims for pecuniary damages or loss of earning capacity. The matter originally included Matthew Huber as a defendant, but by trial he had been dismissed as a defendant.

[2] The action arises out of the arrest of the plaintiff Franco Albanese (Albanese) by the defendants at approximately 6:30 p.m. in a mall in St. Catharines. Albanese advances that he was unlawfully arrested and detained. Furthermore, he asserts that he has experienced damages as a result of this incident; the principal injury being put forth is the experience of post-traumatic stress disorder.

I. Issue

[3] The key question to be decided is whether or not the actions of the defendants on October 14, 2006 are within the realm of tortious liability. That liability is necessary for there to be compensation for any general damages.

II. Factual Background

A. Witnesses for the Plaintiff

(i) Franco Albanese

[4] Franco Albanese is a fifty-year-old man of Italian descent. He described his upbringing. His father was a strict disciplinarian and would impose his will by corporal punishment. Albanese and his mother live close to each other in St. Catharines.

[5] Albanese describes himself as being a versatile individual with many skills. In 2008, he commenced employment with Costco Wholesale. At Costco he has been a cashier and works in merchandise. Two years ago he experienced a workplace injury, which caused him a lower back spasm.

[6] On October 14, 2006, Albanese was living with his mother. He commenced his day by working on the chimney at his mother’s home. He had lunch, during which he decided to get some wallpaper from Walmart.

[7] En route, an acquaintance suggested a séjour at The Feathery, a pub which caters to sports fans. They proceeded to the pub, arriving around 11:00 a.m. While sitting at the bar, Albanese consumed one beer. He gave his second, half-consumed beer to another patron. This generosity struck the court as odd, even more so that another patron would consume someone’s half-drunk beer.

[8] Albanese talked with the bar manager Scotty and some six–and-a-half to seven hours later he left to go to a Starbucks.

[9] At Starbucks, he purchased some coffee and spoke with some of the other customers, a function of his being “sociable”. Another male cautioned him that he was “disturbing the customers and to leave them alone”. This person was Matthew Huber, an animal control officer. Albanese considered Huber’s comments to be rude. In cross-examination Albanese testified that Huber expressed these cautions a second time. Another person from the coffee shop came and told Albanese to leave. Albanese questioned this and was told to “get out”.

[10] Albanese describes Huber as following him closely, breathing down his back. Albanese proceeded to McDonalds in the same plaza. Albanese had parked his vehicle in front of this outlet.

[11] Huber, according to Albanese, had followed him to McDonalds and while there offered to get him a ride. Albanese was astonished by this question and told Huber he did not need a ride and to leave him alone or as he said in cross, to “fuck off”.

[12] Albanese claims Huber followed him to the washroom at McDonalds, peering over the cubicle door. Albanese told someone in the bathroom to “get the fuck out”. He was scared, and did not know what to expect. He had gone to McDonalds to talk to somebody. In any event, he left the washroom and entered into the general McDonalds area and then he took off running towards Tim Hortons.

[13] As he ran he noticed someone in his peripheral vision who was “in his face”. (It is hard to envisage someone who is in your peripheral vision being in your face. This sounds contradictory.) In cross-examination he identified this person as Officer Franklin but did not know that he was a police officer. He tried to look around. Somebody was breathing down his neck. He experienced fear and anxiety as someone tried to move around him. This person jumped in front of him saying he had heard Albanese had created a disturbance. In cross-examination Albanese says that he was not able to realize the uniform of the person who addressed him. He asserts that he was calm and did not raise his voice as he had with Huber. Finally this person twisted his arm behind him and inflicted blows to his back. He was taken down and this person’s knees ended up in Albanese’s back.

[14] Albanese planned to get away as soon as possible to Tim Hortons, he ran as hard as he could. (In cross-examination he refers to running towards the gas station.) But his pursuer caught up to him. There was a fight in which he defended himself; at least he thought there was a fight. He was thrown to the ground. His head was hit against the curb. He looked up and saw a police cruiser who he believed was there to help. It was Officers Kish and Orr on top of him. He realized for the first time that presumably the individual who had been following him, breathing down his back, was Franklin.

[15] Albanese’s arm was twisted; he was cuffed and placed in the cruiser. He lost consciousness when his head was slammed against the quarter panel of the cruiser. He regained consciousness.

[16] Albanese asked why he was being arrested, but the police just laughed at him. They taunted him. He became angry.

[17] At the station he was dragged out of the car ending up on the ground. He refused to take off his clothes when requested to do so. Another scuffle ensued in which his clothes were removed. He defended himself. He was in and out of consciousness. They dragged him into a cell. He mused, “Why am I here?” He insisted that they take him to the hospital but they told him that they don’t do that in Canada.

[18] Albanese remained all night in the cell in his underwear. He had difficulty breathing. He coughed up blood. He was in and out of consciousness. It felt like he was going to die. He felt they would probably kick him. One of them said, “I can’t believe you’re not dead”. He put his head down and gave up, thinking they were going to kill him. The cell door opened and he was told to get out. He was coughing and sneezing. He was in great pain and he smelled “raw flesh” coming from his body. He refused to sign any discharge papers. He wanted them to take him to the hospital but they refused.

[19] Albanese started to walk to the Hotel Dieu Hospital but he saw two police officers there. This scared him. He went home.

[20] Ultimately, Albanese walked to the McDonalds where he had parked his car the night before. He drove his car home to his mother’s place. He describes himself as being bloodied. He proceeded to the basement where he lost consciousness. Later when he showered he noticed bruises on his back and buttocks.

[21] Apparently the next day at the Hotel Dieu Hospital Albanese was told that he had had a concussion, bruises and a laceration. There is no reference to a concussion in the emergency department record of the hospital nor is there in the diagnostic services report (see Exhibit 2, Tab 2). One notes, from reading the medical briefs, specifically the notes of Dr. Steven Hadcock (Exhibit 2), there was no reference to a police assault until April 2007 despite numerous documented visits from October 16, 2006 onwards. On April 10, 2007 Albanese showed pictures of his injuries to Dr. Hadcock, his family physician since 1989. (These pictures are presumably Exhibits 3-11.) Naturally one would wonder why it would take so long for the pictures to emerge if they were taken when attested to, i.e., the next day.

[22] The pictures demonstrate various abrasions. Although Albanese talks of the pictures disclosing a black eye, they seem more to depict redness around the eye (see Exhibit 3).

[23] In terms of ongoing discomfort, Albanese states he has problems reading and his eye starts to close if he is tired. He no longer has 20/20 vision. In cross-examination he acknowledged he could not point to any specific reference in his medical records to eye problems. His wrists still hurt and are painful because of the handcuff application.

[24] He experiences non-specific “great pain” that will not go away.

[25] Albanese states that his pre-existing condition, sarcoid-lymphoma, which is similar to Hodgkin’s and normally creates problems of breathing and pain, was under control at the time of the incident. In cross-examination he acknowledged having issues with panic attacks before the incident.

[26] The same resolution prevailed with respect to a car accident, the same year as the incidents in which he experienced whiplash.

[27] To this day he still has problems with his ribs, he experiences excruciating pain (a “10 out of 10”). Moving the wrong way can cause pain. He cannot sleep on his left side. He experiences headaches that will not depart.

[28] Albanese testified he still has nightmares about officers trying to kill him. These occur two to three times per week. Albanese stated that he has become reclusive. That being said, in his application for disability in 2005, his friends and family had noticed that he had become more withdrawn. In 2005 he suffered from depression. He had been on welfare for a number of years before the incident. It was in 2008 that he obtained his employment with Costco and needless to say his income increased. He manages to see his mother and his girlfriend and attends the casino. The latter would not be a choice venue to escape social contact.

[29] Albanese testifies that he has difficulty at work with anyone in uniform. Although he did mention that he worked up until March 14, 2014 without a problem. He spoke of “triggers”, namely, of authority figures speaking to him. Sometimes people talking about “something” will trigger something in him that causes “the pain … brings back the trauma, the experience”.

[30] Albanese’s leisure activities before the event were filled with athletic activity, i.e. skiing, kayaking, and cycling. He repaired cars. He was versatile in life. All of that has changed.

[31] Albanese does have a girlfriend but she is tired of hearing about this incident. There is no sexual activity. He volunteers that he has pain in his groin, likely from being kicked in the groin by the police. It should be noted that at that stage of the examination in-chief this was the first mention of “the possibility” that he was kicked in the groin.

[32] Tab 6 of Exhibit 1 is a copy of his pardon application made in 2008. That pardon was with respect to various crimes of dishonestly, driving above the legal limit of alcohol and obstructing a police officer.

[33] In re-examination Albanese spoke of being healed of the injuries experienced in this incident within two years.

B. Witnesses for the Defence

[34] At trial, these witnesses testified during and after the completion of the case for the plaintiff. Given that the initial focus in this judgment will be on the lawfulness of the arrest and detention, the competence of the defendants, and their motivation, it appears appropriate to review their evidence at this stage before the rest of the plaintiff’s witnesses whose evidence goes essentially to the question of damages. Although, it could be said that the evidence of Dr. Grant, the emergency room physician who attended to Mr. Albanese on October 16, 2006, could provide some corroborative evidence, at least with respect to Mr. Albanese being involved in a skirmish/fight.

[35] This court has to decide if the threshold evidentiary burden upon the plaintiff is satisfied, based on the evidence of what took place on the evening of October 14, 2006. If the plaintiff fails to meet that burden, the evidence with respect to his alleged injuries and damages becomes moot as there will be no liability on the part of the defendants.

(i) Matthew Huber

[36] At the time of the incident, Matthew Huber (Huber) was employed as an Animal Control Officer for Lincoln County. Exhibit 12, Tab 1, page 4 represents a copy of his notes made October 14, 2006.

[37] Huber had gone in the evening to Starbucks which was close to his office. He was a regular customer. The manager served him and directed his attention to an individual in the coffee shop whom the manager believed had been drinking next door at the The Feathery pub.

[38] Huber saw the individual, Albanese, talking to two patrons who did not appear to be enjoying his presence.

[39] Huber observed Albanese leave Starbucks and walk over to a red Mustang car, where he struggled with his keys. Albanese appeared to be staggering. Huber approached and suggested that he could get Albanese a ride or call a cab for him. Albanese responded, “Fuck you, you piece of shit. I’ll kick your ass”. Huber agreed in cross-examination he had not mentioned at the trial in the Ontario Court of Justice that Albanese had said to him he would “kick his ass”. That being said, having reviewed the transcript on page 11, it could have been because Huber was cut off with the next question to him. Albanese continued to mutter, but Huber could not understand him. Additionally, when Albanese spoke to him his words sounded slurred.

[40] Huber observed Albanese to walk back into Starbucks. At that point, Huber noticed a marked police cruiser going through the drive-thru lane of the nearby McDonald’s. The officer driving was Officer Adam Franklin. Huber and Officer Franklin did not know each other before this occasion. Huber advised Officer Franklin of his concerns relating to Albanese; namely the Starbucks staff believing Albanese had been drinking at The Feathery, his own conversation with Albanese in which the latter became belligerent and appeared to be intoxicated. Huber pointed out Albanese who had left Starbucks and was moving at a pace towards McDonald’s. Huber also pointed to Albanese’s vehicle. Huber had not been asked at the trial before Justice Nadel if he had observed Albanese talking to any of the patrons in Starbucks.

[41] Huber observed Officer Franklin call out to Albanese.

[42] In cross-examination, Huber testified that he did not have any conversation with Albanese in the Starbucks, but it was the thought of him driving whilst impaired bothered him.

(ii) Officer Adam Franklin

[43] The officer’s notes are at Tab 3 of Exhibit 12.

[44] On October 14, 2006, the officer was in uniform and was working the 6:00 p.m. to 6:00 a.m. shift. He was present at the McDonald’s drive-in in a marked cruiser that night to obtain meals for prisoners at the station.

[45] Around 7:15 p.m., shortly after his arrival at the drive-thru, Huber knocked on his car window and complained about a male. Officer Franklin extricated himself from the drive-thru. As Huber had explained, Albanese had tried to get into a vehicle; Officer Franklin parked directly behind that vehicle.

[46] Huber told Officer Franklin how he had been in Starbucks and this fellow had bothered patrons. Huber had tried to get to Albanese just before the latter got in his car. Huber conveyed that he had suggested an alternative to driving to Albanese, i.e. a ride or a cab, and that Albanese became aggressive with Huber, telling him to “fuck off”.

[47] Officer Franklin ran the licence plate of the Mustang, an exercise that would have revealed ownership and the fact of Albanese’s record, which was flagged for violence.

[48] Officer Franklin testified that he saw Albanese leaving McDonald’s on foot. He was weaving and he was drunk. This is all in the context of being in one of the busiest malls in St. Catharines; all the stores and food outlets were busy.

[49] The officer yelled at Albanese, to get his attention. He describes Albanese as being unsteady on his feet. He did not appear to notice the officer hailing him, although other members of the public appeared to notice.

[50] The officer followed Albanese to a paved area near the Cango Gas Bar.

[51] Officer Franklin’s principal concern was that Albanese was intoxicated, aggressive and was entering busy establishments. He believed control had to be achieved over Albanese, for his own sake and that of the public, especially since Albanese had attempted to drive his car. The officer notified his dispatch as to what he observed.

[52] Officer Franklin caught up with Albanese, and had to walk in front of him to advise him he was under arrest. He was unsure if he was able to get these words out before Albanese pushed him with both hands, causing him to sprawl backwards. In cross-examination, the officer acknowledged he had not mentioned this two-handed shove in either his notes or his testimony at trial. With respect to the trial, Officer Franklin was unsure if he was asked specifically about whether or not he was shoved (he wasn’t). He did, however, make reference to this fact in his examination for discovery.

[53] The officer managed to get a handcuff on one of Albanese’s arms, and then the fight was on. In these circumstances, the officer explained, the single attached handcuff could become a weapon. Franklin sought to control the handicapped arm to prevent that possibility. They started to go around in circles. Albanese appeared oblivious to any request by the officer to stop fighting. Efforts to get Albanese to the ground were for naught. For some reason, at some point they ended up on the ground. Two civilians tried to assist, but it was impossible to attach the handcuff to the other arm. At one point, Albanese was on his stomach, with his un-cuffed arm securely beneath him.

[54] Franklin heard the siren of an approaching cruiser. Officers Orr and Kish emerged and facilitated the cuffing of Albanese’s other arm.

[55] When Albanese was raised to his feet, he was livid. The officers tried to get him in their cruiser. Franklin advised him he was under arrest for being drunk. Officer Franklin himself was exhausted, his trousers ripped, he was bleeding. He advised Officers Orr and Kish the reason for the arrest and they transported Albanese to the station.

[56] At the sally port at the station, Officer Franklin believes he gave Albanese his rights to counsel, the caution and the reason for his arrest. There was another struggle in the booking area. Officer Franklin would have told Staff Sgt. Jim MacKay that Albanese was charged with cause disturbance, assault and resisting arrest. The cause disturbance was with respect to the incidents involving himself, Huber and Starbucks, all of which transpired in a public area.

[57] Officer Franklin observed Albanese to exhibit the symptoms of intoxication; namely bloodshot eyes, unsteadiness on his feet and the way he walked, and his possessing an odour of alcohol.

[58] Officer Franklin explained he had arrested Albanese for two reasons: first, his aggressiveness towards Huber, a stranger; and second, his aggressiveness towards Officer Franklin himself, another stranger.

[59] Officer Franklin completed his occurrence report and secured a statement from Huber. He prepared the necessary witness information, the prosecution summary, and the CPIC entry, all of which would be necessary for the Crown brief.

[60] It was the Crown prosecutor, presumably after reviewing the brief that made the decision to advance the case through the court. Officer Franklin met with the Crown about a half hour before the trial in front of Justice Nadel. He had reviewed his own notes and the arrest package.

[61] Officer Franklin was of the view that his evidence was not fully elicited during the criminal trial.

[62] In cross-examination, Officer Franklin admitted that there was no reference either to his moving the cruiser to block Albanese’s vehicle or the running of the plate over his computer. The officer explained that this was a procedural step, and he was emphatic that this was a step that he routinely takes without noting the fact of it. There is a reference in his notes to the licence plate number, which could be considered corroborative of him taking that step.

[63] The officer did acknowledge he did not enter Starbucks to make any inquiries, nor did he ask Albanese how much he had had to drink. It would appear that the officer did not have the luxury of time in responding to this situation. The officer describes the scuffle between himself and Albanese as being akin to wrestling, he denies kneeing Albanese, and also denies punching or striking him, specifically in the eye area.

(iii) Officer Graham Orr

[64] Officer Orr was operating a cruiser on the night in question with Officer Kish as his partner. They were dispatched to assist Officer Franklin with an intoxicated male in the McDonald’s restaurant. When the officers approached the fast food outlet, they did so by means of a road with a median. When they observed the struggle in the vicinity of the Cango gas pumps, it was more efficient to simply park the cruiser and run to the scene to assist.

[65] Albanese was observed on the ground holding his un-cuffed arm under him. Officer Franklin and two civilians were on top of him.

[66] Officer Orr concurred with Officer Franklin’s view of the potentiality for using a single handcuff as a weapon. Accordingly, using his knee in the small of Albanese’s back to secure his torso, he was able to retrieve the other arm to complete the cuffing.

[67] The civilians immediately withdrew from the scuffle. It was clear that they had been assisting Officer Franklin. Officer Orr tried to calm down Albanese, but Albanese was consumed with yelling obscenities. He had to be restrained in order for his wallet with his identification to be extracted from his back pocket.

[68] Officer Franklin asked Orr and Kish to transport Albanese. Albanese continued with his obscenities and refused to stand up, resisting all entreaties to “calm down”. Albanese declined any assistance to be put on his feet; accordingly he had to be forcefully lifted. As the officers transported Albanese, with his feet dragging on the ground, to the cruiser, Officer Orr could smell a strong odour of an alcoholic beverage.

[69] Given the resistance Officer Orr had observed Albanese exhibit to his fellow Officer Franklin, the lack of cooperation and the perceived level of intoxication, Officer Orr believed that Albanese needed to be taken into custody for his own protection and safety.

[70] Even as they transported him, Albanese continued to curse them, and violently hit his head on the Plexiglas divider in the cruiser. This behaviour was reported to the presiding staff sergeant at the station, to ensure that that officer would be present to assist.

[71] At the station, Officer Orr explained to the acting sergeant, James MacKay, the reason for the arrest and the charges. The officer invited Albanese to exit the cruiser, he refused. He would not respond to any questions by the acting sergeant as to the possibility of injuries, the intoxicating circumstances or the charge.

[72] Albanese had to be physically extracted from the cruiser and escorted into the station. He refused to stand when requested to do so. He had to be patted down while he lay on the floor. His belt was removed. He was then transported to a holding cell.

[73] Albanese was not released by the desk sergeant as he could have been, since he had resisted arrest and he smelled of alcohol. It was not safe to release him.

[74] Officer Orr admitted he did not get specific details of the arrest while parked at the gas station. Albanese was transported quickly to the police station, given his banging his own head against the Plexiglas divider. Tab 2 of Exhibit 12 is a printout of the dispatch screen and at 19:26, there was a reference to “hitting head off cage”. In cross-examination, he stated he did not know what portion of the head was coming in contact with the Plexiglas. At discovery, he had said the front of the face, but he could not say if it was the left or right side.

[75] In cross-examination, Officer Orr acknowledged that it was a group effort to retrieve Albanese’s un-cuffed arm in the Cango parking lot. In his notes, the officer had recorded comments to the effect, “grossly intoxicated”.

(iv) Officer Robert Kish

[76] As mentioned above, Officer Kish was with Officer Orr in a cruiser which responded that evening to the Cango parking lot.

[77] Officer Kish states that they arrived around 7:20 p.m. He, like his colleague, observed Officer Franklin struggling with a male, assisted by two civilians.

[78] Officer Kish assisted in the securing of the other arm of Mr. Albanese for the purpose of completing the handcuffing of Mr. Albanese. Throughout all of this, Albanese was yelling profanities, screaming, causing a disturbance, and resisting being handcuffed. He was still very vocal even after being handcuffed. In cross-examination, the officer expressed the belief that no more force than necessary was employed by him and his colleagues. The officer had no recollection of his other colleagues delivering any blows to Albanese, at any point in their contact with Albanese.

[79] Officers Orr and Kish assisted Albanese to the police cruiser, which ultimately had been moved to the Cango parking lot.

[80] The decision was made to take Albanese to the police station. Albanese was generally struggling, resisting arrest and being uncooperative. En route to the station, Albanese continued to yell and scream and bash his head against the Plexiglas partition in the cruiser. They drove into the sally port. Albanese’s behaviour continued in the same vein; he had to be taken to the ground to be searched.

[81] Officer Kish was of the belief that Albanese was intoxicated.

(v) Staff Sergeant James MacKay

[82] James MacKay was the acting staff sergeant on the night in question. He observed Albanese as handcuffed and agitated. He, too, noticed the odour of an alcoholic beverage.

[83] Staff Sgt. MacKay would have been advised as to the reason for the arrest of Albanese. He noted that Albanese challenged everyone in the booking area to a fight, and that it was necessary to take Albanese to the ground to search him. Protocol requires the removal of the person’s belt to prevent the possibility of their injuring themselves. The search in itself was not unusual.

[84] Ultimately, Albanese was transported to a cell and un-cuffed. No injuries on his person were noted.

[85] As officer in-charge, Staff Sgt. MacKay could have released Albanese that night, but did not because of the fact of the charge of assaulting an officer, and the fact that it appeared necessary for Albanese to take some time to sober up.

(vi) Special Constables Chad Davidson and Jeffrey Wilson

[86] Both of these officers testified in a fashion consistent with Staff Sgt. MacKay. Officer Wilson had noted that Albanese had stated, “fuck you, I’ll get you first” when he was given his right to counsel.

C. The Trial Before Justice Nadel, February 20, 2008

[87] The Crown proceeded summarily on two counts; namely, causing a disturbance in or near a public place, and assaulting a police officer, Officer Adam Franklin.

[88] After the examination of Officer Franklin and before the cross-examination, the presiding jurist asked if the defence had any questions. When the defence declined, the jurist asked if that was the case for the Crown. The Crown appeared to be somewhat bewildered and mentioned that he had other officers and he “didn’t know what the issue would be in this” (p. 17 of the transcript).

[89] The court responded, “The issue is whether or not there was any objective grounds for arresting this man. This officer may have had a subjective belief that he had caused a disturbance but there was no evidence objectively that supports his subjective belief”: pp. 17-18 of the transcript).

[90] The Crown posed a question, “Well, the other officers would not be able to assist?” The court replied, “They would not”. At that point, the Crown folded its tents.

[91] His Honour, it appears, instantly proceeded to judgment and characterized the evidence of Officer Franklin as essentially his subjective belief, and that Franklin arrested Albanese not for “drinking and driving” (for which there was little evidence) but for cause disturbance.

[92] His Honour believed that the arrest was unlawful. Furthermore, the evidence of Huber with respect to his own experience was not communicated to Officer Franklin, so Officer Franklin was left with his “subjective belief”. Once the arrest was found to be unlawful, the second count naturally fell as well.

[93] One could argue that the jurist was in error as to what objective grounds Franklin possessed, but this court is not sitting as an appellate court relative to that decision. It could be said that the evidence before this court was more fulsome, counsel for the defendant was more thorough than the original Crown, and that the original Crown should not have folded his case when he did. All of this is noted without comment as to the busy practicalities of life in the Ontario Court of Justice.

[94] In any event, the evidence before this court was more comprehensive and the issues are different. We are looking to determine in a civil context whether there was an unlawful arrest and detention.

III. Applicable Law

A. The Legal Framework

(i) General Observations

[95] The police are the front line of the administration of justice. Section 42(1) of the Police Services Act, R.S.O. c. P.15 states:

“The duties of a police officer include:

a) preserving the peace,

b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention.”

[96] Justice Schroeder in Schacht v. R., 1972 CanLII 41 (ON CA), [1973] 1 O.R. 221, at p. 231, 30 D.L.R. (3d) 641 (C.A.), referred to the police as being “an arm of the state to protect the life, limb and property of the subject”.

[97] The execution of their duties may from time to time require the containment of the liberties of a citizen with care, caution and concern. (See Besse v. Thoms (1979), 1979 CanLII 2791 (BC SC), 96 D.L.R. (3d) 657 (B.C. Co. Ct.), per Hinds Co. Ct. J., rev’d on other grounds 1979 CanLII 633 (BC CA), 107 D.L.R. (3d) 694, 1 A.C.W.S. (2d) 175 (B.C. C.A.)) We expect police officers to be level-headed, beyond overreactions. This is a tall order, as they are confronted often with volatile situations. As Rudyard Kipling extolled the individual in his poem “If”, “If you can keep your head, when all about you are losing theirs and blaming it on you”. We should not be quick to criticize decisions made in exigent circumstances. There is a contextual reality at work in the execution of these duties that cannot be ignored.

[98] Justice LeDain in Cluett v. The Queen, 1985 CanLII 52 (SCC), [1985] 2 S.C.R. 216 at 222, 21 D.L.R. (4th) 306 affirmed the following statement by the trial judge:

Police officers are authorized to use such force as is reasonable, proper and necessary to carry out their duties, provided that no wanton or unnecessary violence is imposed. What is reasonable and proper in the particular circumstance, and in the particular case will depend upon all the circumstances. It is not possible to lay down any hard and fast rule, except the test of reasonableness. If the police officer in carrying out his authority acts on reasonable and probable grounds he [or she] is justified in doing what he [or she] is required to do and in using as much force as is necessary for that purpose.

(ii) The Powers of Arrest

[99] Section 495(1) of the Criminal Code sets out the circumstances in which a police officer may arrest an individual without a warrant. One of the circumstances being, the officer finds “a person committing a criminal offence”.

[100] Subsection (2) of this section mandates that there not be such an arrest for an individual who commits a summary conviction offence, if the public interest in the context of the circumstances, which includes the protection of the continuation or the repetition of the offence, can be satisfied without an arrest. However, the subsection does not completely define “public interest” in the particular circumstances of an incident; the officer is permitted to consider other factors: Collins v. Brantford Police Services Board (2001), 2001 CanLII 4190 (ON CA), 158 C.C.C. (3d) 405, 204 D.L.R. (4th) (Ont. C.A.) at para. 14, per Rosenberg J.A. [Collins].

[101] Subsection (3) deems that an officer acting pursuant to s. 495 is acting lawfully in an execution of his or her duty, unless it can be established that the officer was acting outside of the scope of subsection (2). As observed above, the operative theme in assessing officer conduct is that he or she must have had reasonable grounds and applied only a proportionate degree of force: s. 25(1) of the Code.

[102] The belief of an officer as to the existence of reasonable and probable grounds, although subjective, is against the objective backdrop of whether or not a reasonable person standing in the shoes of the officer would believe that there were indeed reasonable and probable grounds to make an arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 at 324.

[103] The onus is upon the plaintiff to demonstrate that the public interest could have been satisfied without an arrest. s. 495(3)

[104] Even so, not every unlawful arrest equals arbitrary detention. There is a spectrum of possibilities ranging from the complete absence of reasonable and probable grounds to grounds which are just short of that standard when the officer honestly, although possibly mistakenly, believes that such grounds exists and that there is a basis for that belief. “In those circumstances the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary”: Collins, where Rosenberg J.A. quotes R. v. Duguay (1985), 1985 CanLII 112 (ON CA), 50 O.R. (2d) 375, 158 C.C.C. (3d) 405 (C.A.))

(iii) The Offence of Cause a Disturbance Contrary to s. 175(1)(a)(ii) of the Criminal Code

[105] An arrest must serve the objectives of public interest as set out in s. 495(2)(b), and in the context of the specific offence. Therefore, it is necessary to understand the elements of the offence in question, cause a disturbance.

[106] In R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167, 69 C.C.C. (3d) 289, the Supreme Court of Canada had occasion to explore the elements of this offence.

[107] At p. 291, Justice McLachlin (as she then was) noted that s. 175(1)(a) creates a two-element offence: the commission of one of the enumerated acts (in our case, by being drunk in a public place) leading to the second element, namely the causing of a disturbance in a public place.

[108] A “disturbance” is more than mere mental or emotional annoyance or disruption: p. 290. The noun “disturbance” has a different meaning from the verb “to disturb”. It has a secondary meaning which “suggests interference with ordinary and customary conduct or use”: pp. 296-297.

[109] “Disturbance” goes beyond emotional disruption, annoyance or anxiety. “Parliament signaled that its objective was not the protection of individuals from emotional upset but the protection of the public from disorder calculated to interfere with the public’s normal activities”, which includes the use of premises by the public: pp. 297-298.

[110] There can be direct evidence, or sufficient evidence can be inferred from the evidence of a police officer as to the conduct of the individual, pursuant to s. 175(2). The disturbance may flow from the impugned conduct but there must be an external manifestation. “The disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place” (p. 299).

C. The Basis for the Plaintiff’s Actions

[111] The plaintiff frames his action in five different bases of potential responsibility:

1. False arrest,

2. False imprisonment,

3. Negligent investigation,

4. Malicious prosecution, and

5. Breach of his Charter rights.

(i) Bases 1 and 2 – False Arrest and False Imprisonment

[112] These two torts are closely related. False arrest usually begets false imprisonment.

[113] Neither the Criminal Code nor the civil common law provide for the detention of the individual independent of an actual lawful arrest. Justice Linden (Canadian Tort Law, 7th ed (Markham, Ont.: Butterworths, 2001)) has stated that:

[A]nyone who intentionally confines another person within fixed boundaries is liable for the tort of false imprisonment. This tort protects the interest in freedom from restraint.

Confining the plaintiff by exercising physical control over him, placing him in a cruiser and directing him within the secured area of a police station are all acts of imprisonment. Justice Linden explains that the term “false” is not employed in the sense of being unreal, but rather in the sense of being lawful or unlawful. The same meaning of “false” applies to the fact of an arrest.

[114] Inevitably, the arrest of an individual involves some form of confinement, as limited by the powers of arrest. There is an element of temporal necessity to the act of arresting someone. Section 497 of the Code requires the arresting officer to release the individual as soon as practicable unless one of the reasons enunciated in s. 497(1.1) exist. Even at that, according to s. 498 of the Code, the continuing existence of those reasons is then to be assessed by the officer-in-charge. It is possible that with the elapse of time, the original reasons for continuing the detention beyond the immediate act or arrest evaporate.

[115] The statutory power of arrest described above is premised on the existence of “reasonable and probable grounds” to justify the arrest as noted above. In Storrey, Justice Cory opined that reasonable and probable grounds were not established simply on the basis of the subjective belief of the arresting officer, but additionally had to exist and be justified from an objective point of view.

[116] So from a practical point of view, the plaintiff must establish that:

1. He has been totally deprived of liberty,

2. That deprivation was against his will, and

3. That deprivation was caused by the defendant police officer.

[117] Therefore, once an arrest or determination is established, the onus shifts to the defendant police officers to establish the lawfulness of the arrest. Justice Boland in Frazier v. Purdy (1991), 1991 CanLII 7194 (ON SC), 6 O.R. (3d) 429, at p. 435, stated:

The Supreme Court of Canada in R. v. Whitfield (1970), 1969 CanLII 4 (SCC), S.C.R. 46, restates the long-standing rule that no one can lawfully detain another person without lawfully arresting him first. Once an arrest has been made, it constitutes an imprisonment and must be justifiable. If the arrest was lawful, there was no false imprisonment.

See also Kendall v. Gambles Canada Ltd. (1981), 1981 CanLII 2149 (SK QB), 9 A.C.W.S. (2d) 128, [1981] 4 W.W.R. 718,at p. 728; Kovacs v. Ontario Jockey Club (1995), 1995 CanLII 7397 (ON SC), 56 A.C.W.S. (3d) 852, 126 D.L.R. (4th) 576, at p. 58545; and Ernst v. Quinonez, [2003] O.T.C. 847, 125 A.C.W.S. (3d) 923, at para. 93.

[118] Both false imprisonment and false arrest are a form of trespass upon the person and may also include a battery. Both are intentional torts in the sense of being purposeful, not accidental, acts. Justice Borins (as he then was), in Bettel et al. v. Yim (1978), 1978 CanLII 1580 (ON SC), 20 O.R. (2d) 617, 88 D.L.R. (3d) 543 (Co. Ct.), refers to the Second Restatement of Torts (1965) at 8A. Intent:

The word intent is used throughout the Restatement of this Subject to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.

[119] It is this intentional aspect that distinguishes such torts from torts based on negligence. One of the key aspects of the latter is foreseeability of the harm that results. On a review of academic commentators, Justice Borins concluded that foreseeability is not applicable to an intentional tort. In other words, if, as a result of the intentional act of a tortfeasor, greater harm results than was originally contemplated, that makes no difference as to the liability of the tortfeasor. Justice Borins stated, at p. 554:

To hold otherwise, in my opinion, would unduly narrow recovery where one deliberately invades the bodily interests of another with the result that the totally innocent plaintiff would be deprived of full recovery for the totality of the injuries suffered as a result of the deliberate invasion of his bodily interests.

He proceeded to conclude:

To import negligence concepts into the field of intentional torts would be to ignore the essential difference between the intentional infliction of harm and the unintentional infliction of bodily harm resulting from a failure to adhere to a reasonable standard of care and would result in bonusing the deliberate wrongdoer who strikes the plaintiff more forcefully than intended.

[120] Therefore, absent foreseeability, with an intentional tort, all damage is recoverable if it results from the wrongful act: Predovich v. Armstrong (1997), 1997 CanLII 12367 (ON SC), 32 O.T.C. 241, 74 C.P.R. (3d) 351 (Ont. Gen. Div.), per Spence J. In Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24, at para. 8, Chief Justice McLachlin describes the traditional rule:

[T]he plaintiff in an action for trespass to the person (which includes battery) succeeds if she can prove direct interference with her person. Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant [citations omitted].

This notion of direct consequences or “directness” pervades jurisprudence with respect to the nature of the liability which flows from false imprisonment. In Carpenter v. MacDonald (1978), 1978 CanLII 2104 (ON SC), 21 O.R. (2d) 165, 91 D.L.R. (3d) 723 (Dist. Ct.), at p. 741, it was stated:

The plaintiff … is entitled only to those damages by way of money compensation that naturally flow from those wrongful acts. They must be reasonable in amount and are related to the loss of time and interruption of the routine of his life. They are influenced by the bodily and mental suffering and by the humiliation he has experienced … Finally and most important, there is the illegal restraint of the plaintiff’s personal liberty which may be compensated for in money damages.

[121] Professor Lewis Klar in his text Tort Law (3rd ed. (Toronto: Carswell, 2003), at p. 27, proposes the following as a workable test for directness:

An inquiry can be described as being directly produced by a defendant’s act when it flows naturally from it, without the necessity of an intervention by another independent factor. Where, however, the defendant’s act merely creates the situation of danger and requires an additional act to produce the ultimate injury, the injury can be described as only flowing indirectly from the initial act.

[122] Although false arrest and false imprisonment are intentional torts, negligence concepts do come into play in the case of the individual who is actually detained. This is aside from the direct loss that flows from the original intentional tort. Gaolers have the responsibility to ensure that their wards are not handled or cared for in ways in which harm could result. This duty of care requires an assessment of the state of the individual who is detained. For example, do they require medical attention? The mere facts of a detention, which is an extreme imposition on the freedom of the individual, will inevitably have an emotional impact upon the individual. That impact requires periodic monitoring of the detainee in custody and the removal of items of clothing, such as belts and shoelaces, by which the individual could harm himself or herself: Funk v. Clapp (1986), 1986 CanLII 1119 (BC CA), 35 B.C.L.R. (2d) 222, 68 D.L.R. (4th) 229 (B.C.C.A.).

[123] “Damages for false arrest in conjunction with false imprisonment for a short duration are usually fairly modest because in most cases the plaintiff has not suffered to any great extent”: Ernst v. Quinonez, at para. 102, per Hendereson J. The quantum is affected by the loss of time, interruption of the individual’s routine, the bodily and mental suffering, and the indignity and humiliation experienced: Carpenter v. MacDonald (1978), 1978 CanLII 2104 (ON SC), 21 O.R. (2d) 165, 91 D.L.R. (3d) 723, at p. 741.

(ii) Negligent Investigation

[124] In Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41, Chief Justice McLachlin writing for the majority clearly states that the police owe a duty of care to these being investigated. Their conduct during an investigation is measured against the standard “of how a reasonable officer in the circumstances would have acted”. This is not a standard of a perfect investigation but that of a reasonable investigation: para. 3.

[125] This duty of care arises after applying basic notions of tort. The relationship between the police and particular suspects is close enough to support a duty of care: para. 45.

[126] Chief Justice McLachlin explains, at para. 50, that the duty of care expected of police engaged in an investigation “does not require [police] to make judgments as to legal guilt or innocence against a suspect. Police are required to weigh evidence to some extent in the course of the investigation … [b]ut they are not required to evaluate evidence according to legal standards or to make legal judgments. That is the task of prosecutors, defence attorneys and judges. This distinction is reflected in the standard of care imposed, once a duty is recognized. The standard of care required to meet this duty is not that of a reasonable lawyer or a judge but that of a reasonable police officer. Where the police investigate a suspect reasonably … then the police officer will have met the standard of care,” even if the actions of subsequent actors, namely, lawyers and judges are unreasonable.

[127] Chief Justice McLachlin cautions jurists against second-guessing police officers in the exercise of their discretion. “Professionals are permitted to exercise discretion”: paras. 54, 73.As with other professionals, police officers are entitled to exercise their discretion within an acceptable reasonable range. There is no breach of their duty if subsequently a court decides that the exercise was not “optimal”. The applicable 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 that may include urgency and deficiency of information”: para. 73.

[128] The requirement of reasonable and probable grounds for an arrest does not raise the standard, but it informs the standard at various stages of an investigation: para. 55. The standard of a reasonable officer is “a flexible overarching standard”: para. 68. The requirement of reasonable and probable grounds is not in conflict with the standard, it is what a reasonably operating police officer would seek in the laying of charges: para. 68.

[129] That being said, the failure of a plaintiff to establish the absence of reasonable and probable grounds eclipses the possibility of a claim based on negligent investigation: Miguna v. Ontario (Attorney General) (2007), 2007 CanLII 3674 (ON SC), 155 A.C.W.S. (3d) 546, [2007] O.J. No. 512 (Ont. S.C.J.), at para. 49 rev’d on other grounds 2008 ONCA 799; Wiche v. Ontario (2001), [2001] O.T.C. 359, 105 A.C.W.S. (3d) 557 (Ont. S.C.J.), at para. 17; Kellman v. Iverson, 2012 ONSC 3244, 218 A.C.W.S. (3d), at para. 23.

(iii) Malicious Prosecution

[130] In Nelles v. Ontario (1989), 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609 [Nelles], the Supreme Court of Canada described the tort of malicious prosecution. Justice Lamer (as he then was) set out the four necessary elements to the tort, at p. 639:

a) The proceedings must have been initiated by the defendants,

b) The proceedings terminated in favour of the plaintiff,

c) There is an absence of reasonable and probable cause, and

d) The proceedings were motivated by malice or a primary purpose other than carrying the law into effect.

[131] Focusing on the last two elements for the moment, Justice Lamer defined “reasonable and probable cause” as:

an honest belief in the guilt of an accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed: Hicks v. Faulkner, (1878) 8 Q.B.D. 167 at p. 171, per Hawkins J.

[132] The test of reasonable and probable cause has both objective and subjective elements.

[133] “Malice” is equivalent to an improper purpose. Quoting from The Law of Torts (Fleming, 5th ed (Sydney: Law Book Co., 1977) at p. 609, Justice Lamer affirmed that malice has “a wider meaning than spite, ill-willed or a spirit of vengeance, and includes any other improper purpose, such as to gain private collateral damage.”

[134] In Kvello v. Miazga, 2009 SCC 51, at paras. 42-43, Justice Charron traced the historical development of the tort of malicious prosecution. The tort originated in the 18th and 19th centuries at a time when prosecutions were conducted by private litigants and the Crown enjoyed immunity. With the passage of time, Canadian governments adopted Crown liability legislation.

[135] Given its origins in times of private prosecution, Justice Charron cautions against transposing the tort without adapting the concepts to Crown defendants: para. 44. With the prosecution conducted by the Crown, there is the associated belief that the Crown must be independent. This independence is crucial to unbiased (as in, free from outside influence) decisions as to whether to prosecute or not, or to continue a prosecution. Respect for this independence merits caution in second guessing prosecutors: para. 42.

[136] The tort is akin to an abuse of process and consequently it would only exist in the clearest of cases in which, to use the words of Justice L’Heureux-Dubé in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601 at pp. 615-616, there is “conduct which shocks the consciousness of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention” (as quoted by Justice Charron at para. 48).

[137] In Justice Charron’s opinion, abuse of process and the tort of malicious prosecution are “two sides of the same coin”. Both provide remedies where the actions of the prosecution are so egregious that it is outside of the proper role of the prosecutor: para. 51.

[138] Justice Charron expanded upon the original four elements of the tort.

[139] With respect to the first of initiating the proceedings, the plaintiff must establish that the prosecution was initiated by the defendant. Justice Charron states,“[t]his element identifies the proper target of the suit as it is only those who were ‘actively instrumental’ in setting the law in motion that may be held accountable for any damage that results,” quoting Danby v. Beardsley (1880), 43 L.T. 603 (Eng. C.P.): para. 53.

[140] This would exclude those who had passive knowledge or acquiesced in the acts of others in a prosecution: for example, the police officer, who observes the charges being actively prosecuted by a Crown Attorney. There must be some affirmative action on the part of a defendant by way of advice, encouragement, or pressure: Parsons v. Woodfine(2009), 2009 CanLII 33053 (ON SC), 178 A.C.W.S. (3d) 885, 193 C.R.R. (2d) 330, at para. 155.

[141] The second element of a termination in favour of the plaintiff is established in the case at hand. Albanese was acquitted. But, as Justice Charron notes, that result does not mean the prosecution “was improperly initiated”: para. 55.

[142] It is noted in Nellesthat the third element requires the plaintiff to establish an absence of reasonable and probable grounds to commence the prosecution. The reasonable and probable cause assessment is not about the personal views of the prosecutor as to the individual’s guilt; it is about the prosecutor’s professional assessment of the legal strength of the case. “Given the burden of proof in a criminal trial, belief in ‘probable guilt’ therefore means that the prosecutor believes based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law”: para 63.

[143] This is a distinction drawn in the report by the Honourable G. Arthur Martin, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (1993) [the Martin Report].

[144] From the perspective of the investigating officer, the requirement of reasonable and probable grounds for an arrest does not mean that the officer waits until he has exhausted all possible avenues of investigative inquiry: Kellerman v. Iverson, per O’Marra J.

[145] To again quote Justice Charron, at para. 76 of Kvello v. Miazga:

In carrying out the objective assessment, care must be taken in retroactively reviewing the facts actually known to the prosecutor at the relevant time – that is when the decision to initiate or continue the proceeding was made. The reviewing court must be mindful that many aspects of a case only come to light during the course of a trial: witnesses may not testify in accordance with their earlier statements; weaknesses in evidence may be revealed during cross-examination; scientific evidence may be proved faulty; or defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.

[146] The fourth requirement of “malice” is necessary to achieve a balance between the proper administration of justice and compensation of those who have been wrongly prosecuted: para. 56.

[147] An improper purpose is not one of an honest but mistaken professional belief in the existence of reasonable and probable cause. Even an absence of a subjective belief in the existence of reasonable and probable cause does not constitute an improper purpose as that subjective belief may be a phenomenon of incompetence, gross negligence or inexperience: para. 80.

[148] Indeed, “[m]alice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General in the process of criminal justice”: para. 80.

(iv) Breach of Charter Rights

[149] Pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, a court is authorized to grant such remedies to individuals for Charter rights as it “considers appropriate and just in the circumstances”.

[150] Chief Justice McLachlin, writing for the court in Ward v. Vancouver (City), 2010 SCC 27 [Ward], at para. 23, states that the first step in such a process is to establish that the Charter rights of the individual have been breached. In the case at hand, Albanese alleges that his s. 7 rights, namely, life, liberty and security of person, were breached as a consequence of his arrest.

[151] The second step is for the plaintiff to demonstrate why damages are a just and appropriate remedy with regard to the function of compensation, vindication of the right, and deterrence of future breaches: Ward, at paras. 24-31.

[152] The third step is for the state to demonstrate countervailing considerations that would defeat the necessity and appropriateness of a damage award: Ward, at para. 33.

[153] With a functional approach, there may be other remedies available to provide compensation for the alleged Charter breach. Indeed the four other bases for negligence described above may fulfill that function. The Chief Justice describes such actions as “concurrent”, at paras. 35-36. Their existence would satisfy the burden on the state to demonstrate a means to address the breach. In other words, a successful tort claim could adequately address the breach, and any Charter damages would be duplicative: Ward, at para. 35.

[154] In conclusion, in assessing damages under s. 24(1), the Chief Justice notes, at para. 55, “the court must focus on the breach of Charter rights as an independent wrong worthy of compensation in its own right. At the same time, damages under s. 24(1) should not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue.”

C. The Significance of an Acquittal in the Ontario Court of Justice

[155] In Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427, the Ontario Court of Appeal touched upon the significance of an acquittal in the Ontario Court relative to a charge of sexual assault against a male nurse in the hospital in which the deceased was being treated. The Ontario Court jurist acquitted the nurse on the basis that the evidence adduced was speculative and fell far short of proof beyond a reasonable doubt that the alleged sexual assault had occurred.

[156] The estate of the patient brought a civil action against the nurse and his employer, the hospital. The hospital moved to dismiss the action as the Ontario Court of Justice had made a finding that the sexual assault did not occur and that relitigating this finding constituted an abuse of process.

[157] Justice Rosenberg, writing for the panel, stated, at para. 24,

Ordinarily relitigation in a civil forum of the facts underlying an acquittal does not engage these concerns (namely, that relitigation will not necessarily lead to a more accurate result, a same result would indicate a waste of judicial resources, and a different result would undermine the credibility of the entire judicial process) because of the different burdens of proof. A finding in the civil case is that the defendant probably committed the criminal act of which he or she was acquitted does not undermine the credibility of a system that found there was a reasonable doubt. Thus, it is not a question of whether relitigation has led to a more accurate result; the system contemplates that different results are possible because of the different burdens of proof. If the same result is reached on the subsequent civil proceedings, it may be argued that there has been a waste of judicial resources, expenses to the parties that might have been avoided and hardship to the parties and witnesses. However, this is a tolerable consequence because of other competing principles, in particular access to the courts to pursue legitimate claims.

[158] He stated further, at para. 34, that “[a]n acquittal of a wrongfully convicted individual re-establishes that individual’s legal innocence but does not address factual innocence.”

[159] So the finding of an acquittal does not attract the concerns of relitigation in the civil suit for unlawful arrest or the other potential bases for liability. These civil claims are made in a forum in which the balance of probabilities prevails as the evidentiary burden. By the same token, the acquittal in criminal court does not mean the fact of an unlawful arrest is a foregone conclusion.

[160] Finally, it has to be appreciated that the suit before the court is between different parties than was the case at the Ontario Court of Justice. In the latter, it was the matter of Albanese and the state; in the former, it is Albanese versus the police officers and the Police Service Board.

D. Damages

(i) General Comments

[161] As mentioned above, false arrest and imprisonment are intentional torts and consequentially causation is not an issue. The same can be said of the tort of malicious prosecution.

[162] Causation is an issue with respect to the tort of negligent investigation and breach of a Charter right, even though the latter case may be eliminated by virtue of success in “concurrent actions”.

[163] Causation is to be established on a balance of probabilities, i.e., that the defendant’s actions caused the injuries and resulting losses: Provencher v. St. Paul’s Hospital, 2015 BCSC 916 [Provencher], at para. 59.

[164] A plaintiff does not need to establish that the tortious conduct of the defendant in the role is the sole cause of his or her injury. There may be other causal factors. What has to be established is a substantial connection between the injuries and the tortious act beyond “de minimis”: ibid, at para. 60; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 [Athey].

[165] The principle test of causation is the “but for” test: the plaintiff must demonstrate that, but for the wrongful act or omission, he or she would not have experienced the injury. This is not a test to be applied rigidly with precision, but a practical question of fact, applying common sense: Athey, at para. 16.

[166] When it comes to the assessment of damages, “the plaintiff must be placed in the position he or she would have been if not for the wrongful act. However, the defendant need not compensate the plaintiff for injuries which were inherent in the plaintiff’s original position”: Athey, at para. 35, as expressed in Provencher, at para. 62.

(ii) Psychiatric Injury

[167] In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [Mustapha], at para. 8, , Chief Justice McLachin stated that there is nothing to be gained by distinguishing between physical and psychiatric injury.

[168] That being said, the Chief Justice remarked, “psychological injury that rises to the level of personal injury must be distinguished from psychological upset … The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury … ‘Life goes on’ … Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage”: para. 9.

[169] In a negligence claim, the jurist must determine whether the defendant’s breach caused the plaintiff’s injury in fact and in law. Proving causation in law invokes the question of whether or not the injury or damage is too remote to merit recovery: Mustapha, at para. 11.

[170] This is not just a question of possibility of harm but the probability of harm; and even at that, was the harm reasonably foreseeable? The degree of probability that would satisfy the reasonable foreseeability requirement is “one which could occur to the mind of a reasonable man in the position of the defendant … and which he would not brush aside as farfetched” Mustapha, at para. 13, referencing Overseas Tankship (U.K.) Ltd. v. Miller Steamship Propriety Ltd. (1966), [1967] 1 A.C. 617 (New South Wales P.C.) at p. 643.

[171] In determining whether the particular personal injury was “foreseeable”, one must decide whether to look “at a person of ordinary fortitude or at the particular plaintiff with his or her particular vulnerabilities.” The Chief Justice notes, [t]he law has consistently held that the question is what a person of ordinary fortitude would suffer. … ‘The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals’”: Mustapha, at para. 14, quoting White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (U.K. H.L.) at p. 1512.

[172] On that point, the Chief Justice summarized, at para. 15: “To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.”

IV. Analysis

[173] The state of Albanese’s sobriety or lack thereof was central to what transpired the evening of October 14, 2006.

[174] Whether or not a person is intoxicated is well within the realm of opinion evidence that courts receive from laypersons. Regrettably or otherwise, intoxication is not an unusual phenomenon in our society.

[175] Huber and Officer Franklin were strangers to each other but they made similar observations of Albanese, whom neither had met before that evening. Both described Albanese’s unsteadiness on his feet.

[176] Additionally, Huber noticed slurred speech and a lack of physical dexterity when Mr. Albanese fumbled with his car keys. Officer Franklin detected an odour of alcohol, as did his brother officers Orr and MacKay. Huber and Officer Franklin observed and experienced belligerent behaviour on the part of Albanese. Granted, that kind of behaviour can exist independent of intoxication, but it is oft associated with intoxicated persons as alcohol is a known disinhibitor. The same can be said of aggressive behaviour. In the vernacular, people speak of an “ugly” or “mean drunk”.

[177] It is not unusual that it is difficult to get the attention of an intoxicated person as Officer Franklin found when he hailed Albanese.

[178] Intoxicated persons have been known to yell and scream as Officers Franklin, Kish and Orr observed.

[179] Huber had heard that Albanese had been at The Feathery all day. This fact is admitted by Albanese. He arrived there between 11:00 a.m. and 11:30 a.m., and remained there until 6:30 p.m. or 7:00 p.m. Albanese’s account of having a beer and then giving away half of his second beer stretches credulity, especially given the observations of his behaviour by strangers who had no interest in saying what they did, except for the fact that is what they observed.

[180] To a great extent, Albanese’s own testimony confirms his intoxication. There is a surreal element to it. His observations are lacking in detail, he is unable to recognize the police uniform, he thinks there was a fight. His observations are consistent with a state of intoxication in which the individual floats in and out of reality. He is paranoid; all of his emotions and fears are on high alert.

[181] The court finds that Albanese was extremely intoxicated on the night in question. Accordingly, as we tell juries in our charges, it is possible that his recall was affected. This finding and the fact that Albanese demonstrated a tendency to embellish, for example losing his 20/20 vision, being kicked in the groin such that he has painful sexual relations, suffering a concussion, and his smelling raw flesh emanating from his body, undermines his credibility even further.

[182] His reliability as a witness is suspect. This jurist finds him not to be credible in his recitation of what transpired October 14, 2006.

[183] By contrast, the evidence of Huber is quite credible. There are some minor differences between what he related before Justice Nadel and this court, but they are of no consequence. The same could be said of the evidence of Officer Franklin.

[184] Huber acted as any citizen would who observed an intoxicated person attempt to get behind the wheel.

[185] Albanese was severely intoxicated, belligerent and aggressive in his dealings with Huber and the police.

[186] So, if he was intoxicated, attempting to drive his vehicle, and aggressive and belligerent towards Huber and Officer Franklin, would Franklin not have reasonable and probable grounds to arrest him? Would the “public interest” of s. 495(1) of the Code not merit his arrest, to prevent the continuation of his behaviour and to reduce the risk he presented? Would it not be necessary to arrest him and let him sleep it off, to prevent his behaviour from further disturbing the public peace?

[187] The court can rely on the observations of Officer Franklin to find a public disturbance, certainly beyond mere annoyance or irritation. Albanese was a menace to the public peace.

[188] Officer Franklin had a subjective belief in the necessity of arresting Albanese. But his belief was also objectively reasonable. He would have been remiss if he had not so acted. Therefore, the arrest in the first instance was lawful.

[189] As was mentioned previously, Albanese could have been released by the officer-in-charge at the police station. That possibility was erased by the continuing behaviour of Albanese. He had bashed his own head in transport. He refused in any way to cooperate with the police at the police station. He would not even stand to have his belt removed.

[190] As Staff Sgt. MacKay noted, because of the charge and Albanese’s continuing aggressive and hysterical behaviour, it was more prudent to hold onto him and let him “sleep it off”. By next morning, that had been accomplished and he was released. Therefore, whatever detention there was, it was short-lived and could not be considered unlawful. Any detention was in the interest of both Albanese and the public. Again, the police would have been objectively remiss to release Albanese the evening of the 14th of October, given the state Albanese had worked himself into.

[191] Albanese was entirely the author of his own behaviour that evening. Whatever injuries he received were as a result of that behaviour, even if he could be believed that they were sustained.

[192] Was Officer Franklin negligent in his investigation? A reasonable officer in those circumstances would have, as Officer Franklin did, tried to contain the situation by arresting Albanese. He had information from Huber, an ostensibly reliable witness with no apparent motivation to lie. The circumstances surrounding the arrest of Albanese did not allow time to interview Starbucks witnesses, especially so when Albanese continued to be aggressive although half-cuffed. Albanese’s belligerence prevented the officers from asking him how much he had had to drink, and over what period of time, or for further tests to be performed. This was a situation rife with exigent circumstances that had to be responded to immediately, before someone else was injured as a result of Albanese’s intoxication and untenable desire to be left alone in a busy suburban mall filled with consumers.

[193] There was no negligence in the investigation of the matter. It was not a complicated event. One solid witness and the officer’s own observations were sufficient to found the charges.

[194] From that point on, the charges were in the system without any participation of Officer Franklin and his colleagues, aside from the necessary paperwork to instruct the Crown and put any information into the court system. There is absolutely no evidence that any of the defendants strayed from their responsibilities in the processing of this matter. In fact, after the necessary paperwork was done, it was out of their hands and the responsibility of the Crown prosecutors. The role of the defendants became passive; the only active role that remained was to testify in court. They were not so much initiators in the process; rather they were responders to what is regrettably a frequent occurrence when people drink to excess in a public place.

[195] There was reasonable and probable cause for the laying of charges against Albanese. Those charges may have not resulted in convictions but that does not eliminate the fact that they were well-founded, applying the standard of a “reasonable man”.

[196] There is no evidence of improper motive on anyone’s part in the laying of the charge and the prosecution of them. The police and the prosecutors did exactly what the public expects of them. There was no evidence that any of the defendants made this “personal” or were out to get Albanese. Once the charges were processed, they proceeded as thousands of other charges do each day in the court system. The only reason there was an acquittal was that at least to the presiding jurist, there was an absence of an objective reason for the arrest, an opinion which this court may disagree with. There is no evidence of malice or improper purpose. Therefore, that tort is not made out for that reason, and for the absence of other key elements.

[197] As to the Charter right of Mr. Albanese to be free from unlawful arrest and detention, as was demonstrated above, it was a lawful arrest and detention. There was no breach of his Charter rights. He was in the midst of committing a crime. His lack of cooperation, belligerence and aggressiveness were what led to his arrest. It was not the result of the actions of state actors.

[198] What is bizarre in this case is that the whole matter could have been so easily avoided. All Mr. Albanese had to do was to take a ride home and sleep it off.

V. Conclusion

[199] Given that the court finds Mr. Albanese to be completely responsible for what transpired that evening, whatever injuries he experienced were a result of his own behaviour. He is 100 percent responsible for his own injuries without contribution by the defendants.

[200] Therefore, the extent of his injuries, assuming for a moment any could be attributed to this event, is moot. His self-diagnosis of post-traumatic stress disorder, which gained some traction with those who treated him, is academic.

[201] For all of the above, this action is dismissed in its entirety.

[202] Counsel, if they cannot agree on the entitlement and quantum of costs, are to exchange cost submissions and bills of costs not to exceed 15 pages within 30 days of the receipt of this judgment and to file those submissions and any reply with the court within 60 days of the receipt of this judgment.

Whitten J.

Released: November 3, 2016

CITATION: Albanese v. Franklin et al., 2016 ONSC 6479

COURT FILE NO.: SR 9673/08

DATE: 2016-11-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRANCO ALBANESE

Plaintiff

• and –

ADAM FRANKLIN, ROBERT KISH, GRAEME ORR, THE REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD

Defendants

REASONS FOR JUDGMENT

ACRW:mw, co and js

Released: November 3, 2016