Rollins v. Niagara Regional Police Service et al., 2016 ONSC 7735

CITATION: Rollins v. Niagara Regional Police Service et al., 2016 ONSC 7735

COURT FILE NO.: 1242/10 (Welland)

DATE: 2016-12-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GARETT ROLLINS

Margaret A. Hoy, for the Plaintiff

Plaintiff

and -

NIAGARA REGIONAL POLICE SERVICE, REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD and MATT POULI

Stephen Chisholm, for the Defendants

Defendants

HEARD: September 19, 20, 21, and 22, 2016 in Welland

The Honourable Mr. Justice P.R. Sweeny

REASONS FOR JUDGMENT

INTRODUCTION

[1] The plaintiff, Garett Rollins, claims damages for negligence, false arrest, assault, malicious prosecution, and breach of the Canadian Charter of Rights and Freedoms arising out of an incident which occurred on the early morning of August 14, 2008 at the residence located on Woodbine Street, Niagara Falls. Mr. Rollins had attended to celebrate his 19th birthday. The police arrived. He ended up with a big goose egg on the side of his face, chipped teeth, split lip, cuts on his face, blood on his shirt, sore wrists and a charge for assaulting a police officer. He says the charge was trumped up and that he did nothing wrong. The defendants say he assaulted an officer and he got what he deserved. I am required to determine what happened and the corresponding legal implications.

[2] I heard evidence from 10 witnesses, including the plaintiff and the defendant, Police Constable Matt Pouli. The witnesses all had varying degrees of recollection and knowledge of what happened. They each bring with them their own perceptions, past experiences and perspectives. I will provide an outline of the evidence of the plaintiff, defendant Matt Pouli, and Police Constable Benjamin Tomiuck. I will touch on the evidence of the other witnesses. I will then outline my findings of fact and provide an analysis of the legal implications of those facts by addressing the specific causes of action asserted by the plaintiff.

EVIDENCE OF GARETT ROLLINS

[3] August 13, 2008 was Mr. Rollins’ 19th birthday. There was a party held for him at a friend’s house on Woodbine Street, Niagara Falls. It was Mr. Rollins’ recollection that the police came once and told them to take the party inside because of noise complaints. The party moved inside and he was in the basement. He had three beers and two shots while at the house. The police came downstairs around one o’clock. They said the party was over; it was time to go home. Mr. Rollins told the party goers it was time to leave.

[4] One police officer, identified as the taller one (PC Tomiuck), pushed a girl into a wall. In response, Mr. Rollins posed a question, “Can you do that?” The tall officer responded, “We can do whatever the fuck we want”. Mr. Rollins then said, “Why do you have to be such a dick about it?” or words to that effect.

[5] This prompted the shorter officer (PC Pouli) to come at Mr. Rollins and punch him in the head several times. Mr. Rollins did not fight back. He backed up towards the wall. He put his hands up. PC Pouli did not stop. Mr. Rollins bent over and then fell to the floor. PC Pouli continued to hit him on his sides; banged his head on the floor; and then told him he was under arrest. Constable Pouli had his hand on Mr. Rollins’ head and pushed his face onto the floor. He slid Mr. Rollins’ face through the blood on the floor and said, “So I am a dick eh, big mouth”. He handcuffed him. He then picked him up and escorted him up the stairs towards the cruiser. He bent him over the back of the vehicle. He bounced his head off the back of the vehicle. The right side of his face was slid along the back of the vehicle.

[6] He put him in the back of the cruiser and he went out to speak with some people. PC Pouli then got in and they went to the police station. On the drive, PC Pouli said that he heard Mr. Rollins had MMA training. He “asked if I would like him to pull over so we could take the cuffs off and duke it out.” Mr. Rollins, “asked him if he liked his job”. He said that because he wouldn’t do something like that if he liked his job.

[7] When they arrived at the police station, another officer asked, “If we were going to Taser this one.” PC Pouli said “No”. Mr. Rollins asked to go to the hospital. However, he was not sure if anyone heard. No one responded. He was placed in a holding cell until 9:00 a.m. when he was released on a promise to appear.

[8] He went to the hospital that day. He reported his injuries, he was examined, and he was released. A number of photographs were taken which show dried blood on Mr. Rollins’ face, blood on his shirt, and blood on the rug on the floor of the basement.

[9] On August 13th, 2009, at a trial before Nadel J., he was found not guilty of assaulting a peace officer.

EVIDENCE OF POLICE CONSTABLE MATT POULI

[10] PC Pouli received a call to go to a residence on Woodbine Street at 1:30 on August 14th, 2008. He was told there was a party and some fighting outside. He arrived at the scene at about the same time as PC Tomiuck. He was wearing black leather gloves to protect hands. As he walked up to the house, he could see there was a small scuffle in the backyard. They broke up as he approached. There were about 10 there at that time. No force was required to quell that disturbance.

[11] The officers moved to the back of the house. They could hear the party was downstairs in the basement. He observed pushing and shoving in the basement. PC Tomiuck spoke to the homeowner and she said she would like the party shut down. They went downstairs to break up a fight he observed in the basement. There were about 100 kids in the basement. They were drinking and dancing; they were under age. They were all having a good time. He said everyone has to go home. It took 10 to 15 minutes to clear the people out. The people were leaving. PC Pouli stayed downstairs. “They were all calling us pigs, fucking dicks and just generally being mouthy.”

[12] PC Pouli formed the impression that Mr. Rollins was intoxicated. “He was calling me a fucking pig, all police are dicks, you get out of this house too”. That is when Mr. Rollins came up to him and kept getting into his face. He was so close that he was spraying him with his spit. PC Pouli pushed him back once or twice. Mr. Rollins said, “You can get out too.” Mr. Rollins then pushed his right arm causing PC Pouli to move back two or three steps. PC Tomiuck was behind him.

[13] After Mr. Rollins pushed him, PC Pouli told Mr. Rollins he was under arrest. Mr. Rollins then stood back, put his hands up with his fists in the air as if he wanted to fight. PC Pouli administered a brachial stun to him. He fell to the ground. After he fell to the ground, he held his hands underneath him. PC Tomiuck assisted Pouli and they had to fight Mr. Rollins to get his hands. PC Pouli gave him two knees to the side. He told Mr. Rollins to stop resisting. It did not take very long. After that he got his hands, Mr. Rollins was handcuffed. There was a concrete floor and rug in the basement. Mr. Rollins was face down on the floor. After Mr. Rollins was handcuffed, PC Pouli did not that he intend to hit his head off the floor.

[14] Once he was handcuffed, the plaintiff was brought to his feet and stood up. PC Pouli did not see any injuries at that time. He did not see the injuries until later. There was a bit of blood from his nose or his lip. He also had a bump on the side of his face but he does not recall which side of the face.

[15] After he brought him upstairs, he took him outside to the cruiser. He leaned him over the back of the cruiser and searched him for weapons. He then placed him in the cruiser. Once in the cruiser, he read him his rights and cautioned him. After he was in the back of the cruiser, Mr. Rollins started talking to him. He was crying. He was begging him to release him because he was in the police foundations course; he wanted to be a police officer. He was very polite. PC Pouli says, “When I spoke with him he told me he had eight beers and a couple of shots at that time”.

[16] On cross-examination, PC Pouli acknowledged the persons in the basement were having fun. He acknowledged that Mr. Rollins was not upset initially but got upset later. He does not know why he got upset. He acknowledged that Mr. Rollins never struck him aside from the one push.

EVIDENCE OF POLICE CONSTABLE BENJAMIN TOMIUCK

[17] On August 14th, 2008, he went to a residence on Woodbine Street, in Niagara Falls, to respond to a noise complaint. PC Pouli was the first to arrive. They walked to the back of the house. They noticed two or three males fighting. They were pushing. The males stopped as soon as he got there. He was met by the homeowner. He asked the homeowner whether she wanted the people there. She said there was only supposed to be about 20. It just got bigger. She indicated she wanted the officers to end the party.

[18] The officers walked down the stairs and began to get people out. He is not sure whether he went down first or PC Pouli. The kids looked underage. As they were walking down the stairs, two men went by. They looked young. He asked about their ages, they said they were 18; he took their beers from them and dumped them in the laundry tub. The officers walked around the basement. As they walked around, they asked people how old they were. He also dumped a couple of beers. There were about 100 – 125 people in the basement.

[19] As he was walking, a girl came up behind him. It looked like she was going to hit him. He pushed her back and told her to leave. He had told her to leave prior to that. He pushed her. When he pushed her, she did not fall down. She took a couple of steps back.

[20] Most people were compliant. Some people said they needed a warrant. It took 10 to 12 minutes to clear the basement. When he pushed the woman, it made people more upset.

[21] He may have noticed Mr. Rollins near where PC Pouli was but he did not pay much attention. He was about 10 to 12 feet away. There were not a lot of people in the basement at that time. PC Pouli was telling him to leave. Mr. Rollins said, “You need a warrant”. Mr. Rollins told PC Pouli to “fuck off” and was swearing at him. PC Pouli told Mr. Rollins he was under arrest. Mr. Rollins tried to push Constable Pouli away. Mr. Rollins pulled away. He put his fists up, closed fists, boxer style. PC Pouli delivered an open-handed strike and grounded Mr. Rollins. PC Tomiuck turned around to see if anyone was going to help Mr. Rollins. PC Tomiuck observed Officer Pouli strike Mr. Rollins two to three times. PC Tomiuck did not hear Mr. Rollins ask for medical attention. In cross-examination, he acknowledged that the people were generally respectful. They were having a good time.

[22] The woman who he says attempted to strike him was Amanda Levis. When he first saw the woman who later attempted to strike him, he was walking past her. She was looking at him and he told her to leave. He did not pay attention to what she was doing. He was not aware that people were dancing. In cross-examination, he denied she was dancing. He said it was an attempt to punch him on the back of his head. He pushed her away so he would not get a punch. He did not grab her hair with his hand.

[23] PC Tomiuck did not assist in handcuffing Mr. Rollins. His first involvement was helping him up the stairs. He never spoke to Mr. Rollins during the incident. He did not see the whole interaction between PC Pouli and Mr. Rollins as his back was turned part of the time. He acknowledged that things in the basement might have changed after Amanda Levis got pushed. There was yelling and swearing as soon as he got there. He does not recall anyone asking, “Why do you have to be such dicks?”

CHANTELLE PAULINE MCLAUGHLIN

[24] Ms. McLaughlin was at the birthday party for Mr. Rollins. The police showed up about eleven o’clock as a result of a noise complaint. They said they would keep it down and keep people in the house. Garett showed up shortly after midnight. At about one o’clock the police came in. They were saying everyone should get out. Amanda Levis was dancing and had her hands in the air. Chantelle went to go shut off the music. She saw the cop push his left hand at the back of her head. Amanda impacted the wall and fell down. She did not see Amanda doing anything.

[25] Out of the corner of her eye, she saw the cop push Garett away. He ran at Garett and punched him. She went to turn off the stereo system. She went to get her cousin Brittany Fischuk so they could leave. By the time she had gone and gotten her cousin, Garett was on the ground. The cop’s knee was on his back. Her observation was that people were yelling and not complying with what the police were saying. Mr. Rollins was in handcuffs and saying that his wrists hurt.

[26] In the basement, Garett’s back was to the wall. She did not see Garett push or touch the police officer. She did not see Amanda Levis do anything. She never saw Garett in a fighting stance. The only thing she heard Garett saying was, “Why was the officer being a dick”. She believed that an officer pulled out a Taser and threatened to Taser them.

[27] Garett had a couple of beers but he was not ignorant. She had nothing to drink. When she was outside, she spoke with a police officer. The officer handed Garett’s wallet to her. The ID was on the right side.

THUAN NGUYEN

[28] Mr. Nguyen was at the party but he did not see the interaction between PC Pouli and Mr. Rollins in the basement. He believes there were about 25 people in the basement. The police came to tell everyone to leave and shut down the party. He listened to the officer. He was escorted out by Garett. Garett was the host. Garett was being respectful for what the officer requested. He was telling people to leave.

[29] Mr. Nguyen was outside. He saw Garett in handcuffs, face down, escorted by the police officers and bleeding from his mouth and nose. He was not resistant. He saw the officer pushing his head off the back of the police car. He did this two to three times. His face was smashed off the back of the police car. Garett was yelling at the officer to stop.

OBENY ROSE LEE PARIS-ALLEYNE

[30] Ms. Paris-Alleyne did not see anything that happened in the basement. She saw Garett outside. The officer hit his head off the police cruiser. Garett was handcuffed at that time. She did not see Garett say or do anything. She saw him bounce his head off the cruiser just one time. The officers threatened to Taser them.

JAMES CHICOSKI

[31] Mr. Chicoski arrived at the party at approximately 12:45. He had been working at Gambler’s Pizza. He was downstairs when the police came downstairs shouting for everyone to get out. One officer pushed Amanda into the wall. A cop attacked Garett: pushed him, punched him, threw him onto the ground and arrested him. He pushed him into the wall. He punched him in the face two to three times. Garett did not resist. Garett did not raise his hands in a boxer’s stance. Garett was not aggressive at any time. Mr. Chicoski saw Amanda being pushed. Garett asked, “Why is he being such a dick?” Garett did not grab the officer’s arm. On cross-examination, he said a Taser was pointed at him. When Garett was on the ground, he was yelling for people to go upstairs.

BRITTANY FISCHUK

[32] Ms. Fischuk arrived at the party around midnight. She had nothing to drink. She went down to the basement to see her cousin, Chantelle, and Garett. After she got there, the police came to break up the party. She was downstairs in the basement. She recalls the officers came into the basement telling everyone to leave. Everyone started to go upstairs. She recalls the officer banging Mr. Rollins’ head off the floor. He was punching his face. He said, “Stop resisting arrest”.

[33] Her next memory is being outside with her cousin Chantelle. Chantelle was trying to talk to the officer. She was fairly upset. The officer said if she took one more step, he would Taser her. She did not see the officer. Chantelle talked to the officer before Garett was put in the car. Before the officers got there everyone was upbeat. It was not out of control. Everything was pretty enjoyable. They were not fighting before the officers got there. She did not see Garett touch the officer.

AMANDA LEVIS

[34] Amanda got to the party around eleven o’clock. There were 50 to 80 people at the party at that time. They were just hanging out and dancing. She had two to three beers that evening. Police officers came into the basement. There were officers trying to break the party up. They were telling people to leave. She does not know how many officers there were but apparently there were two. They came downstairs. She was dancing. She did not raise a fist. The officer said nothing directly to her. One officer grabbed her and threw her face into the wall. Her hands and face hit the wall.

[35] Garett said something like, “You can’t do that”. The officer responded, “We can do what we want”. Her friends then grabbed her, took her up the stairs. As she was going up the stairs she looked back and saw Garett fall backwards. She saw nothing else that happened to Garett.

BRITTANY ARMSTRONG

[36] Ms. Armstrong got to the party around 10:00 or 11:00. She did not drink that night, she is not a drinker. She was in the basement. They were having fun. There was music and dancing. Things changed when the police showed up.

[37] She was dancing with Amanda Levis. Amanda was waving her arms. The cop shoved her. He pushed her away from him and she fell into the wall. Amanda had not done anything. After that happened, she wanted to get out of there. As she left, she saw the police officer approach Garett and hit him in the face. She went upstairs and outside.

[38] When she was outside, the crowd had changed. Mr. Rollins was brought up from the basement. He had his arms held behind his back and they were bringing him towards the car. She is not 100 percent sure if he had handcuffs on. She saw blood on his face and cuts. She saw the police officer hitting his face off the car five to six times. Garett did not do anything.

ISSUES

[39] The following issues arise in this case:

(1) What actually occurred in the interaction between police and Mr. Rollins in the early morning of August 14, 2008?

(2) Do the actions of the police officers constitute an assault on Garett Rollins and, if so, what are the damages?

(3) Do the actions of PC Pouli constitute false arrest and, if so, what are the damages?

(4) Do the actions of PC Pouli constitute malicious prosecution and, if so, what are the damages?

(5) Do the actions of PC Pouli constitute a breach of the Charter rights of Mr. Rollins and, if so, what are the damages?

(6) Is Mr. Rollins entitled to punitive or exemplary damages and, if so, in what amount?

CREDIBILITY

[40] I had the opportunity to observe the witnesses as they gave their evidence and were cross-examined. The events which were the subject matter of this claim occurred more than eight years ago. The passage of time has an impact on witness’ ability to recollect what happened. The party going witnesses were all credible. They were truthful in their testimony.

[41] Mr. Rollins was a 19 year old high school graduate. He was set to commence a police foundations course in September. He was a boxer by training. He was six feet tall and weighed 190 to 195 pounds. He had no prior criminal record. He was described by the partygoers as respectful and kind. On his 19th birthday he had made arrangements to go to a casino and to be driven to the party. This evidences a sense of responsibility and maturity. He was compliant and initially assisted the officers with shutting down the party. He asked people to leave. He was cooperating with the police. He gave his evidence in a straightforward manner. This was a significant event in his life. It altered his future career plans forever. His evidence was consistent with the evidence of many of the other witnesses. He was a credible witness.

[42] PC Pouli’s evidence was contradicted by others in important ways. His evidence that Garett Rollins assumed a fighter’s stance and sought to fight was not observed by any other witnesses with the exception of PC Tomiuck. PC Pouli testified that PC Tomiuck assisted him in handcuffing Mr. Rollins. PC Tomiuck denies that. In fact, PC Tomiuck had very little opportunity to observe the interaction between PC Pouli and Mr. Rollins because he was looking away. PC Pouli’s suggestion that there was no evidence of injuries and he did not initially notice any blood is inconsistent with the objective evidence of photographs taken of blood smeared on the floor and on the rug in the basement. His evidence of the language used by Mr. Rollins is not consistent with the evidence of others with exception of PC Tomiuck. With respect to what transpired in the basement, I prefer the evidence of Mr. Rollins over the evidence of PC Pouli.

[43] PC Tomiuck did not recall Mr. Rollins saying anything to him. Although Mr. Rollins’ comment, “Can you guys do that?” and PC Tomiuck’s response, “We can do whatever we want,” or words to that effect were heard by a number of other witnesses.

[44] With respect to the pushing of Amanda Levis, PC Tomiuck maintained that she intended to hit him on the head. If that was his perception, it was wrong. She had no intention to hit him. These were young people, drinking, dancing and having fun.

[45] PC Tomiuck said that PC Pouli told Mr. Rollins that he was under arrest before Mr. Rollins took the boxing stance. PC Pouli said it was after. The two officers testified as to hearing fighting downstairs but no other witness testified that there was any fighting going on in the basement. With respect to what happened in the basement, I prefer the evidence of Mr. Rollins, over the evidence of PC Tomiuck.

[46] Many of the other witnesses had only limited observations of the events. They were all trying their best to recollect what happened. No one observed Mr. Rollins acting aggressively, assaulting a police officer or resisting arrest. Several people testified that PC Pouli hit Mr. Rollins’ head on the back of the cruiser.

FINDINGS OF FACT

[47] Based on all of the evidence, I am satisfied that when the police officers entered the basement, there was no fighting going on. The police officers came downstairs to break up the party and the partygoers were complying. PC Tomiuck pushed Amanda Levis who was not intending to harm him in any way. After he pushed her, the tone of some of the partygoers changed.

[48] Mr. Rollins said, “Can you do that?” or words to that effect. He was referring to the push of Amanda Levis. He was upset by the actions of PC Tomiuck and spoke out.

[49] PC Tomiuck said, “We can do whatever the fuck we want”.

[50] Mr. Rollins replied, “You don’t have to be such dicks about it” or words to that effect.

[51] Mr. Rollins was questioning the officers’ behaviour. He was voicing his complaints about the conduct of the officer and the manner in which he had acted. He may have been naïve. He was young but looked intimidating.

[52] PC Pouli took exception to the words used by Mr. Rollins. He overreacted. He punched Mr. Rollins. Mr. Rollins put up no resistance, stepped back and put his hands up.

[53] Mr. Rollins did not take a fighting stance or invite PC Pouli to fight. This was not witnessed by any person aside from PC Pouli and PC Tomiuck, and PC Tomiuck did not have a good view. It is not reasonable to believe Mr. Rollins, a person who was enrolled in a police foundations course would want to fight with a police officer. In any event, given his boxing experience, it is unlikely he could have been subdued as easily as he was. If he intended to fight, he would have fought.

[54] When Mr. Rollins went down on the ground, PC Pouli continued to strike him. Mr. Rollins was bleeding from the face. The photograph showing the blood on the ground makes clear that he was bleeding from his face. The blood was smeared all over the floor. Mr. Rollins did not assault PC Pouli. He did not resist arrest.

[55] Following the arrest and handcuffing, Mr. Rollins was taken outside by PC Pouli. When he was placed on the back of the car, Mr. Rollins’ head was hit on the car by PC Pouli.

[56] In the context of these facts, I shall address the questions as outlined above.

DO THE ACTIONS OF PC POULI CONSTITUTE ASSAULT AND IF SO, WHAT ARE THE DAMAGES?

[57] Assault is the intentional application of force by one person on another without consent. Section 25(1) of the Criminal Code of Canada is often relied upon by police officers in the context of assault charges. The relevant portions read as follows:

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law ... (b) as a peace officer or public officer, ...

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[58] In this case, I am satisfied that PC Pouli assaulted Mr. Rollins. PC Pouli was the aggressor and applied force to Mr. Rollins without his consent and with no justification at law. Therefore, PC Pouli is liable for assault.

DAMAGES

[59] The plaintiff’s injuries were modest. He sustained a chipped tooth, a split lip, a goose egg on the side of his head, cuts and abrasions on his face, and his wrists were sore. I am not satisfied that any significant problems with his nose arose as a result of this assault. There were previous concerns with respect to his nose as evidenced by x-rays taken in February 2007. I am not satisfied that his inability to continue in boxing was as a result of this assault. I fix the general damages for the assault at $5,000.00.

[60] The plaintiff claimed special damages for the cost of dental repair, tuition for one-year of college, books for one year of college. The claims were not supported by any documents. It is unclear why the plaintiff would not have been able to recover some fees for his first year and the sale of some books. There are no details of the actual books purchased. The plaintiff’s claim for these special damages has not been established.

DO THE ACTIONS OF PC POULI CONSTITUTE FALSE ARREST?

[61] In addressing the claims of false arrest and false imprisonment, Henderson J. wrote in Ernst v. Quinonez, [2003] O.J. No. 3781, at paragraph 87 and 89 as follows:

[87] In arresting Ernst the defendants rely on section 495(1)(a) of the Criminal Code of Canada which states as follows:

495(1) A police officer may arrest without warrant

(a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

[89] In order for a Police officer to make an arrest pursuant to section 495(1)(a) it must be shown that the officer subjectively believed that he had reasonable and probable grounds to do so, and that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds existed to make an arrest. See R. v. Storrey 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.

[62] In the circumstances, PC Pouli did not have reasonable and probable grounds to arrest Mr. Rollins. Mr. Rollins did not assault PC Pouli. The plaintiff is entitled to damages. The plaintiff was detained overnight. He was then released on a promise to appear. General damages in the amount of $2,500.00 are appropriate for this false arrest.

DO THE ACTIONS OF PC POULI CONSTITUTE A MALICIOUS PROSECUTION?

[63] In Parsons v. Niagara (Regional Municipality) Police Services Board 2009 CanLII 33053 (ON SC), [2009] O.J. No. 2718, Harris J. set out the elements of malicious prosecution at paragraph 150 and expanded on them at paragraph 151 as follows:

150 The leading case on malicious prosecution remains Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, wherein the court set out a four part test which plaintiffs are required to satisfy to successfully establish their claim. The elements are:

The impugned prosecution must have been initiated or continued by the defendant;

The proceedings must have terminated in favour of the plaintiff;

The proceedings must have been instituted without reasonable and probable grounds; and,

The defendant must have acted out of malice or for a primary purpose other than that of carrying the law into effect.

151 In Ferri v. Ontario (Attorney General), 2007 ONCA 79, [2007] O.J. No. 397 (C.A.), leave to appeal dismissed [2007] S.C.C.A. No. 175 the Court of Appeal acknowledged at para. 43 that by initiating the criminal proceeding, the police can be seen to have satisfied the first element of the Nelles test. In this case Tallevi was the officer who laid the charges against Mr. Parsons. I am satisfied that the first element has been established.

[64] In this case, PC Pouli charged Mr. Rollins with assaulting a peace officer contrary to section 270(2) of the Criminal Code. The impugned prosecution was initiated by PC Pouli. The charge was resolved in Mr. Rollins’ favour when it was dismissed by Nadel J.

[65] Given my findings that Mr. Rollins did not assault PC Pouli, they were instituted without reasonable and probable grounds. Once the charge was laid, it was not withdrawn. The case should not have gone to trial. Mr. Rollins did not assault PC Pouli so continuing with the charge must have been for a purpose other than carrying the law into effect. It was improper.

[66] The plaintiff is entitled to damages. The plaintiff claims special damages of the costs to defend the criminal proceedings in the amount of $8,503.25. I find it appropriate that the plaintiff recover the cost of defending that charge. In addition, I award general damages for malicious prosecution in the amount of $2,500.00.

DO THE ACTIONS OF PC POULI CONSTITUTE A BREACH OF THE CHARTER AND IF SO WHAT ARE THE DAMAGES?

[67] In Elmardy v. Toronto Police Services Board, [2015] ONSC 2952, para. 109, Myers J. stated:

Damages are available to remedy breaches of the Charter under section 24(2) of the Charter itself. They are designed to compensate for losses suffered; to vindicate the rights and to deter future breaches by state actors (Vancouver v. Ward, 2010 SCC 27 at para. 25).

[68] As Henderson J. noted in Ernst, a breach of any of the rights or freedoms guaranteed by the Charter may form the basis of a civil action (at paragraph 105). However, he went on to say at paragraph 106:

It should be noted that if the plaintiff is otherwise entitled to an award of damages and the defendant’s conduct has also breached the plaintiff’s Charter rights, the plaintiff is still only entitled to one set of compensatory damages. The plaintiff is not entitled to any additional extra damages solely because the defendant has breached the plaintiff’s Charter rights and by the same conduct has also committed another tort.

[69] In this case, the plaintiff was “arbitrarily detained or imprisoned,” contrary to section 7 and section 9 of the Charter. While the plaintiff’s Charter rights were breached, he has already been compensated for the damages under the false arrest and malicious prosecution. Therefore, I award no additional damages under this claim.

PUNITIVE DAMAGES

[70] As noted by Henderson J. in Ernst, punitive and exemplary damages are not distinguishable. They are not compensatory damages. They are set for the purposes of expressing the Court’s disapproval of the wrongdoer’s conduct.

[71] For the intentional torts of battery and false arrest, a punitive damage award is appropriate to express the disapproval of the Court of the inappropriate conduct of PC Pouli. In Ernst, the Court awarded $20,000.00 in punitive damages. In Parsons, Harris J. awarded $20,000.00 for punitive damages. In Elmardy, Myers J. awarded $18,000.00 for punitive damages. The award of punitive damages must be viewed in the context of the total amount of damages that the plaintiff is awarded. I award the plaintiff punitive damages.

[72] In this case, I find that the appropriate amount of punitive damage is $10,000.

SUMMARY AND CONCLUSION

[73] I have found that Mr. Rollins did not assault PC Pouli. PC Pouli did not have reasonable and probable grounds to arrest Mr. Rollins. PC Pouli and the Regional Municipality of Niagara Police Services Board are liable to Mr. Rollins for the damages awarded.

[74] The plaintiff is awarded judgment against the defendants as follows:

(1) General damages for assault in the amount of $5,000.00;

(2) General damages for false arrest in the amount of $2,500.00;

(3) Special damages for malicious prosecution in the amount of $8,503.25;

(4) General damages in the amount of $2,500.00 for malicious prosecution;

(5) Punitive damages in the amount of $10,000.00.

[75] The plaintiff is entitled to prejudgment interest on all damages, except punitive damages, in accordance with the Courts of Justice Act, R.S.O 1990, c. C.43.

[76] If the parties are unable to agree on costs, the plaintiff is to provide costs submissions limited to five pages plus a bill of costs and any offers to settle within 15 days of the release of this decision. The defendants then have a further 15 days to respond with no more than five pages plus a bill of costs and any offers to settle. They are to be provided to me at my chambers in Hamilton.

Sweeny J.

Released: December 30, 2016