CITATION: Carr v. Ottawa Police Services Board, 2017 ONSC 4331

COURT FILE NO.: 10-49203

DATE: 2017/07/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Roxanne Carr

Plaintiff

– and –

Ottawa Police Service Constable Cindy Cybulski, Ottawa Police Service Constable Michael Adlard, Ottawa Police Service Constable Shawn Virgin, Ottawa Police Service Constable Darren Shore, Ottawa Police Service Detective Constable David West, Ottawa Police Service Constable M. Morris, Ottawa Police Service Constable Richard Marcil, Ottawa Police Sergeant Steven Desjourdy and the Ottawa Police Services Board

Defendants

Lawrence Greenspon and Marisa Victor, counsel for the Plaintiff

Geoffrey J. Cantello, counsel for the Defendants

HEARD AT OTTAWA: May 11–13, May 16–19, 25 and 27, 2016

REASONS FOR JUDGMENT

COrthorn J.

Overview

[1] For Roxanne Carr, the hot summer afternoon of August 23, 2008 began sitting on the front steps of her home, enjoying the company of a friend. To Roxanne’s surprise, the police arrived in the middle of the afternoon. A police officer told her that she was required to leave the premises.

[2] The course of the afternoon turned in a moment, when Roxanne stood up from the front steps to enter her home and retrieve her personal belongings. Roxanne was not permitted to leave the premises peaceably, as she intended. Instead, the situation escalated. Roxanne was taken to the ground, handcuffed, and arrested. A total of seven police officers were involved in detaining Roxanne, arresting her, transporting her to the police station, searching her, restraining her upper and lower limbs, placing her in a holding cell, searching her a second time, and leaving her naked in the cell for several hours before she was permitted to leave the Ottawa police station.

[3] An eighth officer investigated the events of the day. He decided that Roxanne would be charged with assault, assaulting a police officer, resisting arrest, and mischief. The charges were subsequently withdrawn because of the lack of a reasonable prospect of conviction.

[4] The situations that police officers are called upon to respond to are wide-ranging. Some situations involve no illegal activity whatsoever; others involve the most heinous of human behaviour. Through training and experience, police officers develop the judgment they require to assess situations and determine how to handle them.

[5] At the heart of this case is the manner in which each of the officers exercised their judgment in dealing with Roxanne on August 23, 2008.

[6] Roxanne claims damages for injuries suffered, economic losses, and expenses incurred and to be incurred in the future, damages on the basis of breaches of her rights pursuant to the Charter of Rights and Freedoms, and punitive damages.

The Issues

[7] The issues to be determined are:

1. Was the arrest of Roxanne Carr lawful under either the provincial Trespass to Property Act or the Criminal Code of Canada?

2. Did any of the officers use excessive force when dealing with Roxanne Carr?

3. Were any of the officers negligent in carrying out their investigation of the events of the afternoon of August 23, 2008?

4. Were Roxanne Carr’s rights pursuant to sections 7, 8, or 9 the Charter of Rights and Freedoms breached as a result of the conduct of one or more of the defendants?

5. Was the Ottawa Police Services Board negligent because it failed to provide its officers with reasonable training, supervision, and oversight?

6. To what damages, if any, is Roxanne Carr entitled under the following headings:

a) General damages;

b) Loss of income, loss of competitive advantage, or loss of earning capacity;

c) Out-of-pocket expenses and future care expenses;

d) Breach of Charter rights; and

e) Punitive damages.

Background

[8] In the spring of 2008, Roxanne began to share a townhouse rented by her former boyfriend, Devon Morgan. They shared the home as roommates, each paying $500 per month in rent.

[9] Roxanne planned to move out of the home a few days prior to the end of August 2008. She told Morgan of her intention to do so.

[10] On the afternoon of August 23, 2008, Roxanne’s friend, Shawn Lavigne, visited with Roxanne at the townhome. Lavigne arrived in the early afternoon. The two spent a couple of hours conversing, seated on the front steps of the home. Roxanne believed Morgan was in Montreal that day.

[11] The afternoon was disrupted when two police officers, Constables Adlard and Cybulski, arrived at the home. Adlard told Roxanne to go inside and ask Morgan to come outside. Roxanne complied with the request, despite having responded that Morgan was not home. To Roxanne’s surprise, Morgan was inside the home. Morgan went outside and spoke with the officers. Roxanne returned to sit on the steps with Lavigne.

[12] Following their conversation with Morgan, Adlard and Cybulski had the impression that they were dealing with a situation of “removal of an unwanted person”. They did not believe that the situation was one involving criminal activity.

[13] After speaking with Morgan, Adlard and Cybulski returned to the front of the home. Morgan followed them. Adlard told Roxanne that she was required to leave the premises. Roxanne was taken aback by the request.

[14] Roxanne was unable to convince Adlard that she paid rent and was entitled to remain at the home. During her discussion with Adlard, Roxanne stood up from her seated position on the steps. Adlard believed that Roxanne was about to assault Morgan. There was no physical contact between Roxanne and Morgan. Adlard brought Roxanne to the ground and arrested her for assault. With Cybulski’s assistance, Adlard handcuffed Roxanne. The arrest occurred within eight minutes of the officers arriving at the home.

[15] The two officers took Roxanne to one of their cruisers and placed her in the back seat. Two other officers, Constables Virgin and Shaw, arrived at the scene.

[16] When in the first cruiser, Roxanne kicked the rear passenger and driver’s side windows out of the cruiser. The officers then placed Roxanne’s ankles in flex cuffs so as to restrain her leg movement. The officers carried Roxanne to the back seat of another cruiser parked nearby.

[17] When Roxanne was in the second cruiser, paramedics attended at the scene. Roxanne’s mother also attended at the scene, spoke with at least one of the officers, and spent time with Roxanne.

[18] Adlard drove Roxanne to the sally port area of the Ottawa police station. Constable Cybulski and Special Constable Morris, the latter a cell block officer, removed Roxanne from the cruiser. They dragged Roxanne into the cell block area and placed her on the ground face down so that a search could be conducted.

[19] Cybulski and Morris carried out the search. Throughout the search, Roxanne was handcuffed, with her ankles in the flex cuffs, and lying on the ground. Cell block officers Special Constable Marcil and Sergeant Desjourdy were present during the search but did not assist. After the search was completed, the flex cuffs were removed, Marcil applied a temporary restraining device (“TRD”) to keep Roxanne’s arms tied together behind her back, and the handcuffs were removed. Marcil took Roxanne to a holding cell. He removed the TRD once Roxanne was inside the cell.

[20] Sometime later, one of the cell block officers called an alert with respect to an incident in Roxanne’s cell. The alert was that Roxanne was trying to strangle herself with her own clothing (her top). In response to the alert, at least four officers went to the cell. Some of the officers removed Roxanne’s clothing. Morris, who was one of the officers to attend at the cell, gave Roxanne a suicide suit to wear.

[21] Shortly after receiving the suicide suit, Roxanne threw it out of the cell. Roxanne remained naked in the cell for between 2.25 and 3 hours before she was provided with a second, larger-sized suicide suit. During that time, an officer passed by Roxanne’s cell every half hour as part of a regular cell check. In addition, Roxanne’s cell could be seen on the monitors of the closed-circuit cameras.

[22] Shortly after midnight, Detective West attended in the hallway outside Roxanne’s cell. He outlined the charges being laid, the evidence he relied upon, and why the charges were being laid. He did not attempt to obtain from Roxanne her version of the events of the day. Roxanne was later allowed to leave her cell, retrieve her clothing and personal items, and leave the building. She took a taxi to her mother’s home.

[23] Roxanne seeks compensation for physical injuries suffered at the time of arrest and in the course of being searched and taken to a holding cell. She also seeks compensation for psychological injury suffered in the form of post-traumatic stress disorder, anxiety, and insomnia. Roxanne’s claim includes damages for economic losses on the basis that because of the psychological injuries suffered she has been and shall remain unable to return to gainful employment.

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial [Trespass to Property Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-t21/latest/rso-1990-c-t21.html) or the [Criminal Code of Canada](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), to arrest Roxanne without a warrant?

[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:

• As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;

• As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;

• There is no evidence that Morgan gave Roxanne notice to leave the home; and

• There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

▪ Roxanne was, at a Minimum, a Licensee and Entitled to Remain

[30] As of August 2008, Adlard had been a constable with the Ottawa Police Service (“OPS”) for eight years. Cybulski began working with the OPS as a civilian in 2000. She became a constable in 2006.

[31] After being dispatched to a “dispute/disturbance” call, Adlard and Cybulski arrived at the home in separate cruisers. From their brief conversation with Morgan, the officers understood that Morgan was uncomfortable with Roxanne remaining at the home. He wanted Roxanne removed from the home that afternoon.

[32] Had the situation been hers to manage, Cybulski would have attempted to have Roxanne leave the premises. If Roxanne had refused to leave, Cybulski would have “spent a lot more time just talking or finding a solution.” Cybulski was not certain that a trespass notice would have been issued to Roxanne if she had refused to leave. Cybulski had no intention of arresting Roxanne.

[33] However, the situation was not Cybulski’s to manage. Adlard was the first officer to respond to the call; the situation was his to manage. The approach adopted by Adlard is in stark contrast to Cybulski’s approach. Adlard immediately adopted a forceful, if not confrontational, approach with Roxanne.

[34] Adlard’s evidence was that in responding to calls of this type, police are not in the “eviction business”. Adlard testified that to be fair to Roxanne in the circumstances, he needed to speak to her. Yet, Adlard asked Roxanne only one question before he arrested her: Was her name on the lease for the home?

[35] From the conversation with Morgan, Adlard knew that Roxanne paid rent. He also knew that Roxanne and Morgan shared common facilities in and the entranceway to the home. Adlard acknowledged that prior to telling Roxanne she was required to leave the premises he knew nothing more about the arrangement between Morgan and Roxanne. At no time did Adlard determine any of the following from either Morgan or Roxanne:

• When Roxanne had moved into the home;

• How much she paid in monthly rent;

• The months for which she had paid rent (including whether she had paid rent for the month of August);

• If or when Morgan gave notice to Roxanne to leave; or

• The date on which Roxanne was scheduled to leave the home.

[36] Adlard focussed on the fact that Roxanne’s name was not on the lease. He concluded that (a) Morgan gave Roxanne notice to leave, (b) there was nothing in the law with respect to tenancy to protect Roxanne, and (c) Roxanne had to leave the home.

[37] Roxanne’s evidence was that in response to being told to leave the premises she asked Adlard to do two things. The first was for him to speak to her mother, with whom Roxanne was in contact by cell phone. Adlard refused to do so. The second was to look at a written agreement between Roxanne and Morgan regarding sharing the townhome. Roxanne wanted to retrieve the document from inside the home. Roxanne testified that Adlard refused to let her retrieve it. Adlard denied that such a request was made.

[38] Both Adlard and Cybulski understood that Morgan and Roxanne had, by a verbal agreement or otherwise, been sharing the home. Whether or not a written agreement existed is irrelevant to the outcome of this case. If such an agreement existed, then Roxanne was a sub-tenant in the home and entitled to remain.

[39] Even on the basis of a verbal agreement, Roxanne was, at a minimum, a licensee with respect to the home (see Jamieson v. Saucier, [1986] O.J. No. 1915 (Dist. Ct.), at p. 2; Maxwell v. Brown (1982), 1982 (ON SC), 35 O.R. (2d) 770 (Co. Ct.), at paras. 7, 10). A licensee is not entitled to the protection afforded to a tenant under the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Nonetheless, a licensee is entitled to adequate notice if they are asked to leave the premises (Jamieson, at p. 2).

[40] By his own evidence, Adlard lacked reasonable and probable grounds to conclude that by refusing to leave the home, Roxanne was contravening section 2 of the TPA. I find that Adlard lacked authority pursuant to section 9(1) of the TPA to arrest Roxanne without a warrant.

b) Arrest Without a Warrant Under the Code

[41] When Roxanne stood up, Adlard put his hand on her arm in an effort to stop her from moving. Adlard acknowledged that as of that time, Roxanne was under arrest. She was arrested by Adlard for the offence of assault, a hybrid offence under section 266 of the Code.

[42] Section 265(1) of the Code states that an individual commits an assault when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

[43] In limited circumstances, a police officer may rely on the Code as authority to arrest a person without a warrant. Those circumstances are set out in section 495 of the Code.

[44] Did Adlard have authority, pursuant to section 495, to make an arrest without a warrant for the offence of assault on the afternoon of August 23, 2008? I conclude he did not:

• An indictable offence had not been committed (s. 495(1)(a));

• Reasonable grounds did not exist for Adlard to believe that Roxanne was about to commit an indictable offence (s. 495(1)(a));

• Adlard did not find Roxanne committing a criminal offence (s. 495(1)(b)); and

• Reasonable grounds did not exist for Adlard to believe that an arrest without a warrant was required to establish identity, secure or preserve evidence, prevent the continuation or repetition of an offence, or prevent the commission of another offence and that unless an arrest was carried out Roxanne would fail to attend in court (ss. 495(2)(c),(d),(e)).

[45] Consider Roxanne’s circumstances when seated on the front steps of the home and told to leave the premises. The yard was small and fenced. There were five people in the yard: Roxanne, Morgan, Lavigne, and two uniformed police officers. Each of Adlard, Cybulski, and Morgan was less than eight feet away from Roxanne. The photographs of Morgan entered as exhibits are of a fit and strong individual.

[46] Roxanne’s attempts to respond to Adlard and present her side of the situation had failed. She had given notice to Morgan that she intended to leave the home within a matter of days of August 23, 2008. Roxanne’s mother lived in the city. Roxanne had a place to go. I accept Roxanne’s evidence that when she stood up from the steps it was her intention to enter the home, retrieve some of her belongings, and leave the premises.

[47] The evidence as to what transpired at the home was given by Roxanne, Adlard, and Cybulski. Neither Morgan nor Lavigne testified at trial. Roxanne’s evidence is generally consistent with Cybulski’s evidence with respect to the events leading up to Roxanne’s arrest. They each testified that:

• Immediately before standing up, Roxanne was seated on the front steps of the home with Lavigne beside her;

• Adlard told Roxanne that she was required to leave the premises;

• Adlard explained to Roxanne that if she refused to leave she would be given a trespass notice – “trespassed” in Cybulski’s words;

• Adlard told Roxanne she could, before leaving, re-enter the house to retrieve her things; and

• Roxanne stood up after being told she was permitted to re-enter the house to retrieve her things.

[48] Adlard’s evidence as to what transpired differs from Roxanne’s and Cybulski’s evidence. For the following reasons, I prefer the evidence of Roxanne and Cybulski over Adlard’s evidence with respect to the events leading up to the arrest for assault.

[49] First, Adlard testified that Roxanne was seated in a plastic chair in the yard and not on the steps to the house. In cross-examination, he acknowledged that the latter scenario was possible.

[50] Second, there were a number of internal inconsistences in Adlard’s evidence. For example, he initially described telling Roxanne that she “might” be required to leave the premises. However, more than once in cross-examination, Adlard admitted that he told Roxanne in no uncertain terms she was required to leave the premises.

[51] Third, it was not until Adlard was, in cross-examination, taken to his discovery transcript that he admitted that, not only did he tell Roxanne she was required to leave, he told her that if she refused to leave she could be arrested.

[52] It is not disputed that Roxanne’s agitation showed in her choice of words when speaking with Adlard. Roxanne admitted that she used expletives at times. Adlard described Roxanne as belligerent. He based that description on nothing more than Roxanne’s use of expletives and her request that Adlard speak on the telephone with her mother. Neither speech peppered with expletives nor belligerence of that kind is indicative of an individual who is on the precipice of committing the offence of assault.

[53] There is no evidence that prior to standing up, Roxanne directed any of her comments, expletives, or agitation towards Morgan personally.

[54] I find that regardless of Roxanne’s use of expletives, her belligerence, and her demonstrable level of agitation, she did nothing prior to standing up to cause either of the officers any concern that she posed a threat of physical harm to Morgan. To that point, the officers did not have reasonable and probable grounds to arrest Roxanne for assault.

[55] In assessing whether Adlard had grounds to make an arrest, his conduct is considered both objectively and subjectively. An officer must have reasonable and probable grounds on which to base an arrest. In addition, those grounds must be justifiable when viewed objectively: “[A] reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest” (R. v. Storrey, 1990 (SCC), [1990] 1 S.C.R. 241, at p. 251). It is, however, recognized that the officer need not establish a prima facie case for conviction before carrying out an arrest (Ibid.).

[56] Why did Adlard arrest Roxanne for assault and Cybulski thereafter assist Adlard in handcuffing Roxanne? Critical to their handling of the situation was their respective assessment of Roxanne’s movement when she stood up from her seated position.

[57] Adlard’s evidence was that when Roxanne stood up he believed:

• Roxanne was “about” to assault Morgan;

• “[A]n assault was going to occur”;

• Roxanne’s movement was indication of “an imminent assault”; and

• “[C]ontact was about to happen”.

[58] Adlard acknowledged, however, that there was no contact between Roxanne and Morgan before the arrest.

[59] Both Adlard and Cybulski testified that, upon standing, Roxanne “lunged” towards Morgan. Adlard gave four explanations as to what he meant by a “lunge”:

a) A step towards Morgan;

b) A very big step;

c) Essentially the same thing as a step, given the distance separating Roxanne and Morgan; and

d) Moving towards Morgan “aggressively”, one foot in front of the other.

[60] Adlard’s description of Roxanne’s movement changed as he made record of it throughout the course of the day. In his notes, Adlard described Roxanne’s movement as “aggressive”. In his Investigative Action Report (“IAR”), prepared several hours after the arrest, Adlard described the movement as both “aggressive” and “assaultive”. It is difficult to accept that Adlard’s memory of the events improved with the passage of time, even if only a few hours.

[61] Cybulski’s evidence was that Roxanne was “upset” and “looked as though she might assault Morgan.” Cybulski also described the step taken by Roxanne as a “lunge”. Cybulski testified that, as Roxanne made the movement, one of Roxanne’s arms moved in front of her body and towards Morgan.

[62] In her notes made following the incident, Cybulski made no mention of an arm movement. She made no mention of it in her IAR. Adlard testified that he did not observe any arm movement. I find that Cybulski is honestly mistaken about her observation of an arm movement. The arm movement, if made, would in any event be consistent with Roxanne’s evidence that she turned towards the front door of the house to open it.

[63] I find that when Roxanne stood up she did not “lunge” towards Morgan, nor did she move her arm in a manner that would cause a reasonable person in either of the officers’ positions to conclude that Roxanne was attempting or threatening to apply force to Morgan. By standing up, Roxanne did not add volatility to the situation. Her movement did not cause the situation to change rapidly or to require immediate intervention by the officers. The situation remained as it had been: “the removal of an unwanted person”.

[64] I find that there was neither a subjective nor an objective basis upon which to conclude that there were reasonable and probable grounds to arrest Roxanne for assault. With respect to section 495 of the Code, I find that the reasonable grounds required to support an arrest without a warrant did not exist.

c) Summary

[65] Adlard and Cybulski did not have authority to arrest Roxanne without a warrant under either the TPA or the Code.

[66] Roxanne’s claim against the officers is based on the tort of false arrest and false imprisonment. The former is a “tort resulting from the intentional and total confinement of a person against his or her will and without lawful justification” (Collis v. Toronto Police Services Board (2007), 2007 (ON SCDC), 228 O.A.C. 333 (Div. Ct.), at para. 28). I find that Roxanne has established the liability of Adlard for the tort of false arrest.

[67] The tort of unlawful imprisonment “flows from the total deprivation of a person’s liberty” (Ibid). Roxanne has established that, when she was placed in handcuffs, she was totally deprived of her liberty. I find that Adlard is responsible for Roxanne being placed in handcuffs. The arrest and subsequent handcuffing were the first in a series of events that led to Roxanne being falsely imprisoned.

[68] Cybulski’s role in the events at the home were that of a second officer on the call. For the reasons discussed below (under Issue No. 3), I find that the decision to arrest and to apply handcuffs was not hers. Cybulski assisted Adlard only when she saw that Roxanne was resisting arrest. I find that Cybulski is not liable for either false arrest or false imprisonment.

Issue No. 2 – Did any of the officers use excessive force in their involvement with Roxanne Carr?

a) The Legal Standard for Use of Force by Police

[69] Police officers may be required to resort to force to complete an arrest or to prevent an offender from escaping custody. There is, however, a limit to the power of police officers, acting in the course of their duties, to inflict harm on a person. The degree of force allowed “remains constrained by the principles of proportionality, necessity and reasonableness” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 32.)

[70] Section 25 of the Code prescribes legal constraints on the use of force by police officers. The Supreme Court of Canada, in Nasogaluak (at paras. 34 and 35), considered section 25 and established guidelines for its application to the circumstances of a given case:

• The use of force by a police officer to effect a lawful arrest is justified, provided that the officer (a) acted on reasonable and probable grounds to make the arrest, and (b) used only as much force as was necessary in the circumstances (section 25(1)).

• A police officer is prohibited from using a degree of force intended or likely to cause death or grievous bodily harm, unless the officer believes such force is necessary to protect him or herself or another person under the officer’s protection from death or grievous bodily harm (section 25(3)).

• The officer’s belief as to the degree of force necessary must be objectively reasonable. A review of the degree of force used has both a subjective and an objective component.

• The actions of a police officer are not to be judged against a standard of perfection. The conduct of the police is to be judged in light of their dangerous work and the emergency situations in which they carry out their work.

[71] The officers deny they used excessive force. In their pleading, the officers only rely generally on the provisions of the Code. Based on the evidence of the officers and the closing argument on their behalf, it is clear that they rely specifically on section 25 in their defence of the claims based on use of excessive force.

[72] For the officers to successfully rely on section 25, they must satisfy a three-part test (Wilson v. Durham Regional Police, 2011 ONSC 3419, at para. 68; the “Wilson test”). They must establish on a balance of probabilities that they:

a) Were required or authorized by law to carry out the actions undertaken in their administration and enforcement of the law;

b) Acted on reasonable grounds in carrying out the actions; and

c) Did not use unnecessary force.

[73] For the purpose of applying section 25 of the Code to the events of August 23, 2008, I have divided the incidents into three periods: (i) the arrest at the home; (ii) at the cruisers; and (iii) at the police station.

b) Arrest at the Home

▪ Adlard’s Actions

[74] I have already found that Adlard did not have authority to arrest Roxanne without a warrant. As a result, Adlard is unable to satisfy the part one of the Wilson test. If, however, I am wrong, and the arrest was lawful, then it is necessary to consider the parts two and three of the test.

[75] I have also already found that Adlard did not have reasonable and probable grounds to arrest Roxanne for either an offence under the TPA or for assault pursuant to the Code. Adlard is therefore unable to satisfy part two of the test.

[76] Part three of the Wilson test requires consideration of the degree of force used. It is undisputed that upon standing from a seated position, Roxanne was taken to the ground and handcuffed by Adlard. The evidence is contradictory as to whether Roxanne was brought down by Adlard from behind or otherwise; whether, once Roxanne was on the ground, Adlard applied pressure to her shoulder using his knee and, at times, pressure to her face using his boot; and whether after handcuffing Roxanne, and with pressure still applied to her face, Adlard told Roxanne to get up or he would break her wrist.

[77] I find that there is no evidence to support a belief on Adlard’s part that he or anyone “under his protection” (i.e. Morgan), was at risk of death or grievous bodily harm. Adlard testified that the only portion of the discussion with Morgan to which he gave credence was Morgan’s request that Roxanne be removed from the premises that afternoon. Adlard disregarded Morgan’s alleged concerns for his physical safety.

[78] Roxanne testified that during the arrest (a) Adlard was holding her wrist so tight that she was in significant pain, and (b) at least one bone in her wrist was fractured.

[79] By the time Roxanne stood up from her seated position, she had demonstrated a level of agitation that was palpable. I find, however, that her level of agitation did not warrant the use of force to the degree used by Adlard when arresting Roxanne. Adlard is therefore unable to establish on a balance of probabilities that the degree of force used was necessary. He is unable to satisfy the third part of the Wilson test.

[80] In summary, I find that the force used by Adlard at the time of Roxanne’s arrest was excessive; it was not proportional, necessary, or reasonable.

[81] For Roxanne’s claim based on excessive use of force to succeed, she must establish both that excessive force was used and that the excessive force used resulted in injury (Wilson, at para. 69).

[82] Medical records filed as exhibits confirm that subsequent to August 23, 2008 Roxanne was diagnosed with fractures of two bones in her wrist. The Defendants did not lead any medical evidence to dispute that the fractures of the bones in Roxanne’s wrist were caused by the manner in which she was physically handled at the time of the arrest and/or by the application later in the day of the TRD (temporary restraining device). The degree of force used when the TRD was applied is discussed in part (d), below.

[83] Roxanne also testified that, as a result of being taken to the ground by Adlard, she suffered cuts and scrapes to the lower portion of her legs. She noticed the cuts and scrapes upon being placed in the back seat of the cruiser.

[84] I accept Roxanne’s evidence that during the arrest she experienced a high level of pain in her wrist and that she received the cuts and scrapes to the lower portion of her legs. I find that the use of excessive force by Adlard during the arrest (a) caused or contributed to the fracture of one or two bones in Roxanne’s wrist, and (b) resulted in abrasions to the lower portion of Roxanne’s legs. Those injuries form part of the assessment of damages discussed below under Issue No. 6.

▪ Cybulski’s Actions

[85] Cybulski testified that Roxanne resisted arrest by grabbing Adlard’s arm when he attempted to handcuff Roxanne. Cybulski stepped in to assist Adlard at that time. Cybulski’s evidence was that there was a struggle and the three individuals ended up on the ground. None of Roxanne, Adlard, or Cybulski gave any evidence as to any use of force by Cybulski during the struggle.

[86] There is no evidence to support a conclusion that Cybulski used excessive force when she assisted Adlard at the home.

c) At the Cruisers

▪ Adlard’s Actions

[87] Following the arrest, Adlard and Cybulski took Roxanne to Adlard’s cruiser. Roxanne’s evidence was that, once she was at the cruiser, Adlard banged her head three times on the hood. Adlard denies doing so. Cybulski testified that she did not see Adlard do so. Cybulski also testified that when Roxanne was inside the cruiser Roxanne banged her head against the partition between the front and back seats.

[88] I find Cybulski to be a credible witness. She did not tailor her evidence to match or support Adlard’s version of events at the home. Roxanne banging her head against the partition is consistent with other undisputed aspects of Roxanne’s conduct while in the first cruiser, such as kicking out the glass of the passenger and driver’s side rear windows. For those reasons, with respect to the events upon arrival at Adlard’s cruiser, I prefer Adlard’s and Cybulski’s evidence over Roxanne’s.

[89] I find that Adlard did not strike Roxanne’s head against the hood.

[90] Roxanne alleges that as a result of her head being banged on the cruiser she suffered a black eye. The assessment of damages below therefore does not take a black eye into account.

▪ Transfer from First to Second Cruiser

[91] Roxanne testified that, when she was transferred from the first to the second cruiser, she remained in handcuffs with her legs bound together at the ankles by flex cuffs. The cuffs were placed around Roxanne’s ankles to prevent her from continuing to use her legs and feet, as she did to break the windows of the first cruiser.

[92] Roxanne’s evidence was that the officers who carried her from the first to the second cruiser deliberately dropped her to the ground. The officers on the scene at that time were Adlard, Cybulski, Shore, and Virgin.

[93] Neither Adlard nor Cybulski has a specific recollection of the transfer. Shore recalls that when transferring Roxanne, the officers travelled across a grassy area. Virgin testified that Roxanne had to be carried between cruisers because she was unable to move on her own. He does not otherwise have a specific recollection of the transfer.

[94] Virgin testified that he observed cuts to Roxanne’s ankles and feet and an abrasion on her shoulder before she was removed from the first cruiser. He described Roxanne as very uncooperative, aggressive, and out of control when she was in the first cruiser. Virgin’s description of Roxanne’s condition and behaviour is consistent with Roxanne having kicked out two windows of the first cruiser.

[95] Virgin’s involvement with Roxanne was restricted to the transfer between cruisers and to delivering Roxanne’s personal property (purse and footwear) to the cell block. He answered questions posed of him directly, whether the questions were posed during examination-in-chief or in cross-examination. He did not hesitate in answering questions. Even though he described Roxanne as uncooperative, et cetera, he did not appear to be exaggerating or embellishing the situation. I accept Virgin’s evidence as to Roxanne’s behaviour when in the first and second cruisers.

[96] Roxanne’s level of agitation was such that, while lying prone on the back seat of the first cruiser (before her legs and ankles were restrained), she was able to kick out the two rear windows of the cruiser. There is no evidence that her level of agitation decreased after she was placed in flex cuffs and transferred from the first to the second cruiser.

[97] Given Roxanne’s level of agitation by the time she was being transferred between cruisers, I find that her memory of that portion of the afternoon is unreliable. It is possible that Roxanne’s agitation and movement while being transferred resulted in (a) the officers having difficulty maintaining control of her, and (b) portions of her body coming in contact with the ground during the transfer.

[98] Roxanne has not established that any one or more of the officers transferring her between the two cruisers deliberately dropped her on the ground.

d) At the Police Station – Application of the TRD

▪ Marcil

[99] Upon Roxanne’s arrival at the police station, Cybulski and Morris removed Roxanne from the cruiser, took her to the cell block area, and placed her face down on the floor. Roxanne was then searched.

[100] At the conclusion of the search Roxanne was still lying on the ground. The TRD was applied by Marcil at that time. Roxanne testified that she believes a bone in her wrist was broken during the application of the temporary restraining device (“TRD”). Her belief in that regard is based on an excruciating level of pain experienced as Marcil tightened the device and used it to pull up on her arms.

[101] Marcil was required to refresh his memory of the events of August 23, 2008 by reviewing his IAR. He acknowledged that he has only a very vague recollection of Roxanne and the application of the TRD.

[102] Marcil is well over six feet tall and appears to be a physically strong individual. He has an imposing presence.

[103] Marcil was clear in his evidence as to when the TRD is to be used: “…when someone who comes into our custody is being aggressive.” I emphasize Marcil’s use of the present tense. He made no reference to an offender’s past behaviour as a reason to use the TRD. Marcil also testified that the purpose of the TRD is to keep an offender from attacking anyone.

[104] I consider Marcil’s use of the TRD in light of the three-part Wilson test:

a) There is no evidence that Roxanne was being aggressive or that she was about to attack someone once she arrived at the police station. Therefore, based on Marcil’s evidence, the criteria for the use of the TRD were not met. I find that Marcil did not act in accordance with the applicable internal policy for the use of the TRD;

b) For the reasons set out immediately above, I find that Marcil was not acting on reasonable grounds when he used the TRD; and

c) I accept Roxanne’s evidence as to the level of pain that she experienced when the TRD was applied. I find that (a) the force used by Marcil in the application of the TRD was not proportional, necessary, or reasonable, and (b) caused or contributed to the fracture of at least one bone in Roxanne’s wrist.

[105] In summary, I find that Marcil (a) used excessive force in the application of the TRD, and (b) is unable to rely on section 25 of the Code in defence of this aspect of the claim against him. When assessing the damages to which Roxanne is entitled, I include the fracture of two bones in her wrist.

Issue No. 3 - Were any of the individual defendants negligent in the manner in which they carried out their investigation of the events of the afternoon of August 23, 2008?

a) The Standard of Care

[106] The standard of care required of a police officer carrying out an investigation is that of “a reasonable police officer in all the circumstances”. The situation may include urgency; there may be deficiencies of information; and neither perfection, nor even the optimum, when judged from hindsight, is required (see Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at paras. 68, 73).

[107] An investigation has a number of stages. The conduct of a reasonable police officer may vary depending on (a) the stage of the investigation in which he or she is involved, and (b) the legal considerations (495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 2006 ONCA 656, 132 O.R. (3d) 241, at para. 48).

[108] Roxanne relied on the decision of the trial judge in Barclay. That decision was overturned by the Court of Appeal in September 2016, a number of months after closing argument in the matter before me. The Court of Appeal concluded that the trial judge erred because she determined the applicable standard of care without the benefit of expert evidence related to the particular type of investigation carried out by the police.

[109] When is expert evidence as to the standard of care required in cases of professional negligence?

b) Expert Evidence as to the Standard of Care

[110] As identified by the Court of Appeal in Barclay, “[t]he general rule is that the standard of care of a professional, such as a police officer, will require expert evidence” (at para. 53). There are, however, two exceptions to the general rule.

[111] The first is for “nontechnical matters within the knowledge and experience of the ordinary person” (Barclay, at para. 57). The second is when the impugned conduct of the defendant is so egregious that it is obvious that their conduct has fallen below the standard of care. In that circumstance, it is not necessary for the trier of fact to know with precision the parameters of the standard of care (see Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 508, at para. 135, leave to appeal to SCC refused, 34359 (December 8, 2011)).

[112] The investigation on August 23, 2008 had a number of stages including (a) the investigation of the situation at the home, and (b) West’s review of the information received from the four officers who attended at the home and his decision to charge Roxanne with four offences. Did either stage of the investigation fall within one of the two exceptions to the general rule that expert evidence as to the standard of conduct of the officers, as professionals, is required?

▪ Investigation at the Home

[113] Roxanne alleges that Adlard and Cybulski were negligent in their investigation because they failed to recognize (a) Roxanne’s right to remain at her residence, (b) that there were no reasonable and probable grounds to arrest Roxanne, and (c) there was no evidence suggesting that Roxanne was involved in any criminal activity at the time of the arrest. I have already made findings that Adlard failed to recognize each of those three things. Was that failure negligent?

[114] Cybulski described the situation to which she and Adlard responded as “removal of an unwanted person”. Nothing that occurred prior to the arrest elevated the nature of the call to a technical or specialized one. The matter was nontechnical and within the knowledge and experience of an ordinary person.

[115] I find that the call to which Adlard responded falls within the first exception set out in Krawchuk. Therefore, expert evidence is not required in order to determine the standard of care required of Adlard and whether he was negligent in his investigation of the situation up until the time of arrest.

[116] The standard of care required of Adlard was that of “a reasonable police officer in all the circumstances.” (Hill, at para. 68). The reasonable police officer was Cybulski. Based on her evidence, I find that the standard of care is the measured approach she would have taken had the call been hers to manage. That approach included, if necessary, talking the situation out over a longer period of time than that taken by Adlard to speak with Roxanne and Morgan.

[117] I find that Adlard’s failure to take a measured approach and his decision to take a forceful, if not confrontational, approach are such that his conduct fell below the standard of care.

[118] For Roxanne’s claim against Adlard on the basis of negligent investigation to succeed, she must also establish a causal connection between the breach of the standard of care and the compensable damages suffered. The applicable test is the ‘but for’ test: “If, on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of [Adlard], then the causation requirement is met” (Hill, at para. 93).

[119] I find that as a result of Adlard’s negligence in handling the investigation, the situation escalated and ended with Roxanne’s arrest for assault. That arrest led to the series of events that transpired throughout the balance of the day on August 23 and into the early morning hours on August 24, 2008, when Roxanne was released from the Ottawa police station. I am satisfied that there is a causal connection between Adlard’s negligence in his investigation of the situation at the home and the compensatory damages suffered.

[120] Cybulski was the second officer to respond to the call. Her evidence that the call was Adlard’s to manage is uncontradicted.

[121] The standard of care of required of Cybulski as the second officer on the call does not fall within either of the two Krawchuk exceptions to the general rule. To determine whether Cybulski’s conduct fell below the standard of care, evidence is required as to:

1. The policy or practice of the OPS with respect to the second officer on a call and when, if at all, the second officer is entitled and/or authorized to override the first officer; and

2. How that policy or practice compares to those of other police forces.

[122] The existence and/or contents of such practice or policy are not within the skill and knowledge of an ordinary person. Without any evidence as to the practice and policy of the OPS with respect to second officers on a call, I am unable to determine whether Cybulski’s conduct met the standard of care. In addition, I find that Cybulski’s conduct was not so egregious that it is obvious that her conduct fell below the standard of care.

[123] As a result, in the absence of expert evidence, the claim against Cybulski based in negligent investigation must fail.

▪ West’s Investigation

[124] Roxanne alleges that West was negligent in his investigation because he failed to recognize that the four officers who prepared the IARs provided false information and/or withheld exculpatory information. Roxanne also alleges that West failed to recognize that the four officers conducted themselves in that manner so as to punish Roxanne and shield themselves from scrutiny, discipline, or liability for their respective actions.

[125] As of 2008, West had been with the OPS for over 20 years. In August 2008, he was a Detective working in the Partner Assault Unit.

[126] West’s evidence as to his investigation and his interaction with Roxanne was as follows:

• He reviewed the IARs submitted to him by Adlard, Cybulski, Shore, and Virgin. He did not speak with any of the officers.

• Based on his review of the IARs, he prepared a Promise to Appear (“PTA”) setting out the four charges. The PTA required Roxanne to attend in Court for a first appearance and to return to the Police Station for identification purposes.

• Based also on the contents of the IARs, West prepared an Undertaking and Non-Communication Order (“NCO”). The NCO prohibited Roxanne from speaking with Morgan and from being within 500 metres of Morgan’s residence, except to return to the home, escorted by a member of the OPS, to retrieve her personal belongings.

• Both the PTA and Undertaking/NCO were prepared before West went to the cell block area to speak with Roxanne.

• West was aware, before speaking with Roxanne, that no one had interviewed her to obtain her version of the events. He had no intention of interviewing Roxanne and did not do so. He spoke with Roxanne for approximately seven minutes. He explained the charges and that Roxanne would be required to sign the PTA and the Undertaking/NCO.

• West’s notes of the conversation with Roxanne consist of eight lines in his notebook.

[127] The IARs of each of the four officers were not introduced as evidence at trial. There is no evidence as to the contents of the IARs prepared by Cybulski and Virgin. There is limited evidence as to the contents of the IARs prepared by Adlard and Shore.

[128] There is no evidence as to West’s historical working relationship with any one of Adlard, Cybulski, Shore, and Virgin. There is insufficient evidence to support a finding that, based on his historical working relationship with any one or more of the officers and/or the contents of the IARs, it would have been reasonable for West to conclude that the officers were motivated by self-protection when completing their respective IARs. Nor is there sufficient evidence to support a finding that the standard of care required West to reach such a conclusion.

[129] Roxanne submits that the manner in which West carried out his investigation amounts to “indifference to the consequences of laying the charge[s] and [falls] short of even the rudimentary steps which might have been taken to establish reasonable and probable grounds.” (see, for example, Beckstead v. Ottawa (City) Chief of Police (1995), 1995 (ON SC), 37 O.R. (3d) 64 (Gen. Div.), at pp. 67–68, aff’d (1997), 37 O.R. (2d) 62 (C.A.)).

[130] Beckstead is distinguishable on its facts for a number of reasons. In that case, the charge laid was fraud with respect to use of a credit card to remove money from a bank account. The investigating officer spoke with the accused for 20 minutes and never met face to face with the complainant. In support of his conclusion that the accused was the individual shown in video photographs from surveillance equipment at the bank, the investigating officer made entirely unfounded assumptions about a change in appearance of the accused.

[131] The type of investigation carried out in Beckstead was nontechnical and within the skill and knowledge of an ordinary person. No expert evidence was led before the trial judge; none was required.

[132] There is no evidence before me as to what was required of West in carrying out his investigation and in deciding to lay four charges against Roxanne. Did the OPS have a policy with respect to laying charges based solely on IARs, without interviewing the officers involved and/or without interviewing the offender? If so, was the policy of a technical or a nontechnical nature? The existence and/or contents of such a policy are not within the skill and knowledge of an ordinary person. I am unable to conclude that the investigation carried out by West was nontechnical in nature.

[133] In the absence of evidence as to the internal practices, if not policies, of the OPS with respect to investigations of this kind, I am unable to determine whether West’s conduct fell below the standard of care. Nor am I able to conclude that West’s conduct was so egregious that it is obvious that his conduct fell below the standard of care.

[134] The decision of the Crown to ultimately withdraw the charges because of a lack of reasonable chance of conviction allows for unwarranted hindsight; that is not the test to be applied when considering an allegation of negligent investigation.

[135] I find that the type of investigation carried out by West does not fall within either of the two exceptions identified in Krawchuk. Therefore expert evidence is required with respect to the standard of care required of a detective carrying out an investigation of the kind carried out by West.

[136] The claim against West based in negligent investigation fails.

Issue No. 4 – Was the conduct of one or more of the defendants in breach of Roxanne Carr’s rights pursuant to [section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth), [8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth), or[ 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec9_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[137] Roxanne asserts that her rights pursuant to one or more of three sections of the Charter were breached:

• The right to life, liberty and security of the person (section 7);

• The right to be secure against unreasonable search or seizure (section 8); and

• The right not to be arbitrarily detained or imprisoned (section 9).

a) Section 7 – Right to life, liberty and security of the person

▪ Excessive Use of Force

[138] There is overlap between the claim based on use of excessive force and the claim based on a breach of Roxanne’s section 7 Charter rights. First, there is overlap in the evidence relevant to each of the claims. Second, a finding that excessive force was used may support a further finding that Roxanne’s rights pursuant to section 7 of the Charter were breached (see, for example, Nasogaluak, at para. 38.)

[139] In addressing this aspect of Roxanne’s claim, I rely on the findings made with respect to Issue No. 2. I also take into consideration Roxanne’s evidence (a) as the extent to which she attempted to communicate to the officers that she was, by reason of their actions, experiencing physical pain, and (b) that the officers ignored the information she communicated. I accept Roxanne’s evidence in that regard.

[140] For example, Roxanne testified that at the time of the arrest she told Adlard that she was experiencing extreme pain in her wrist. Roxanne’s evidence was that Adlard paid no heed to that information. Roxanne also testified that Marcil persisted with the application and use of the TRD despite Roxanne’s complaints of pain in her wrist.

[141] I find that the excessive use of force as found above under Issue No. 2 amounts to a breach of Roxanne’s section 7 right to security of the person. I also find that the breach was not committed in accordance with any principle of fundamental justice.

▪ Left Naked in Cell for Over Two Hours

Basis for removal of clothing

[142] The Cell Check Report entry for 4:10 p.m. states that Roxanne “tried to tied [sic] shirt around neck.” When that observation was made, four officers went to Roxanne’s cell and conducted a search that ended in Roxanne’s clothes being removed. The officers were Marcil, Desjourdy, Morris, and Cybulski.

[143] There are inconsistencies in the evidence of each of the officers as to (a) who originally made the observation, (b) how the observation was communicated, (c) in what state Roxanne was found when the officers arrived at the holding cell, and (d) the specifics of what occurred in the cell.

[144] For example, Morris testified that Marcil alerted the others that Roxanne was attempting to tie herself with her clothing. Morris was unable to recall if Marcil was in front of the monitors when he gave that alert. Marcil denied giving the alert. Cybulski was uncertain as to who gave the alert. She testified that Desjourdy may have issued the alert that “someone’s hanging”.

[145] Marcil testified that he was the first officer to the cell. He had the keys to open the door to the cell. Marcil and Morris both testified that when they arrived at the cell Roxanne was standing at the back of it. The evidence of the officers varied from Roxanne having an item of clothing tied around her neck to Roxanne holding the article of clothing over her head. Morris was unsure whether the article of clothing was Roxanne’s top or pants. Marcil thought the article of clothing was Roxanne’s top.

[146] Marcil acknowledged that in his IAR he recorded that Roxanne attempted to tie herself to the cell door with an article of clothing. However, he was unable to say when he made that observation. He testified that he would not have been able to open the cell door if Roxanne had attempted to tie herself to the door with an article of clothing.

[147] Desjourdy acknowledged that none of the video footage for Roxanne’s holding cell shows an article of clothing tied around the bars of the cell door.

[148] The officers acknowledged that once the alert was issued they made their way quickly to Roxanne’s cell. The video footage shows Marcil running to the cell. Desjourdy described the officers as getting to the cell at a “fast pace”. None of the officers provided an explanation as to how it would have been possible for Roxanne to untie an article of clothing from the bars of the cell door and move to the back of the cell—all in the short time that it took the officers to get to the cell.

[149] Each of the officers recorded notes and/or prepared an IAR with respect to their involvement with Roxanne. One purpose served by officers’ notes and IARs is to assist officers in refreshing their memory when giving evidence in court. That they would seek to refresh their memory is not surprising, given the number of individuals with whom they deal over time in the cell block. Despite having prepared these documents and having the documents available to refresh their memory, the officers were inconsistent in their evidence regarding the event that led to the alert being called. They were also inconsistent in their evidence as to how Roxanne’s clothing was removed.

[150] Item D21 of the “OPS Cell Block Policy and Procedure” prescribes the level of monitoring required of a person who “is/may be suicidal”. Such an individual “shall be continuously monitored on video in a private cell and personally viewed at least every fifteen minutes.” The Officer in Charge is also mandated to continuously monitor suicidal prisoners (Item G10). There is no evidence that Roxanne was monitored in that manner. If the officers truly believed that Roxanne posed a danger to herself in that she was suicidal, they were required to monitor her more extensively than they did following the incident in the cell and the removal of her clothing.

[151] Roxanne denies that she at any time attempted to either tie an article of her clothing around her neck or to the door. The video footage of the search carried out when Roxanne arrived at the cell block area shows that she was entirely passive. In the video footage of Marcil leading Roxanne to her cell, she is compliant. By the time Roxanne was placed in her cell, she had suffered two broken bones in her wrist.

[152] Given (a) the inconsistencies in the evidence of the officers as to what gave rise to the alert being called, (b) the lack of adherence, following the removal of Roxanne’s clothing, to Item D21 of the “OPS Cell Block Policy and Procedure”, (c) Roxanne’s passive and compliant behaviour upon arrival at the police station, and (d) Roxanne’s denial that she attempted to tie an article of her clothing around her neck or the cell block door, I find that no event occurred that gave rise to reasonable grounds for the officers to remove Roxanne’s clothing.

[153] In summary, I find that the removal of Roxanne’s clothing was a breach of her section 7 right to security of the person. I also find that the breach of Roxanne’s section 7 right was not carried out in accordance with the principles of fundamental justice.

Two hours without a suicide suit

[154] After Roxanne’s clothes were removed she was left naked in the holding cell for over two hours. The evidence of what occurred in that two-hour period includes the video footage, the Cell Check Report, the testimony of Morris and Desjourdy, and Roxanne’s evidence. Desjourdy was the officer in charge of the cell block that afternoon and evening.

[155] In the slightly more than two hours that followed the removal of Roxanne’s clothing, the following occurred:

• Roxanne was given a garment to wear at 5:13 p.m. The garment was a suicide suit, intended to provide coverage while eliminating the opportunity for self-harm. Roxanne was unable to don the garment and told Morris she was unable to do so. Morris responded by telling Roxanne (a) to throw the garment into the hallway adjacent to the cell, and (b) that she would be provided with another garment. Roxanne threw the garment into the hallway within a matter of minutes after receiving it.

• Cell block officers patrolled the hallways and checked the cells approximately every 30 minutes. They also observed the cells using the monitors for the closed circuit cameras.

• Morris made an entry in the Cell Check Report for 5:46 p.m. identifying that Roxanne had thrown the garment into the hallway.

• It was not until 8:03 p.m. that Morris provided Roxanne with another garment (a larger suicide suit).

[156] I find that neither Morris nor Desjourdy gave a reasonable explanation for the delay of over two hours in taking steps to ensure that Roxanne was provided with a second suicide suit.

[157] The “OPS Cell Block Policy and Procedure” was entered as evidence. Item D1 from that document states:

The Ottawa Carleton Regional Police Service affirms the fundamental rights of all prisoners to be treated with fairness and respect at all time in accordance with the Charter of Rights and freedoms [sic] and the Criminal Code. This includes the right to counsel, humane treatment, and immediate medical attention where required. [Emphasis added.]

[158] In addition to this general affirmation, Item F29 of the document requires that the cell block attendants “[e]nsure that an adequate supply of prisoner smocks and footwear is maintained.” Item F30 makes is mandatory for the cell block attendants to provide a prisoner smock to a prisoner who is “believed to be suicidal.”

[159] With respect to Roxanne being left naked in a holding cell for more than two hours, I find as follows:

• The conduct of Morris and Desjourdy fell below the standard expected of them on the basis of the “OPS Cell Block Policy and Procedure” document;

• Being left naked in the holding cell for more than two hours, was a breach of Roxanne’s right to security of the person; and

• The breach of Roxanne’s section 7 right was not carried out in accordance with the principles of fundamental justice.

b) Section 8 – Right to be secure against unreasonable search or seizure

[160] For a search to be reasonable under section 8 of the Charter (a) it must be authorized by law, (b) the authorizing law must itself be reasonable, and (c) the search must be conducted in a reasonable manner (R. v. Collins, 1987 (SCC), [1987] 1 S.C.R. 265, at p. 278; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 16).

[161] Roxanne was the subject of a search upon arrival at the police station. That search was one of a series of events that followed what I have found to be an arrest made without authority. As a result, the search was not authorized by law and was a breach of Roxanne’s section 8 right to be secure against unreasonable search.

c) Section 9 – Right not to be arbitrarily detained or imprisoned

[162] Roxanne asserts that she was arbitrarily detained when the police officers arrived at the home. I accept Roxanne’s evidence that she believed she was not free to leave the yard except as directed by Adlard. She did not attempt to enter the home except when told by Adlard to go inside and retrieve her personal belongings so that she could leave; the only time she moved was to do so. I find that Roxanne was detained prior to being arrested.

[163] Roxanne’s detention falls in the category of an investigative detention. In R. v. Mann, 2004 SCC 52, [2004] S.C.R. 59, at paras. 34 and 35, the Supreme Court of Canada established a number of guiding principles with respect to the power of the police to detain for investigative purposes.

[164] Based on Adlard’s evidence, he recognized that he was not investigating any recent or ongoing criminal offence. He was responding to a “dispute/disturbance” call. I find that he was carrying out his common law duty of preserving the peace (Mann, at para. 26.) I find that both subjectively and objectively Adlard’s decision to handle the situation as forcefully, if not confrontationally, as he did was neither reasonable nor necessary to fulfil his duty at the time.

[165] In summary, I find that Roxanne’s section 9 right not to be arbitrarily detained was breached.

Issue No. 5 – Was the Ottawa Police Services Board negligent because it failed to provide its officers with reasonable training, supervision, and oversight?

[166] No expert evidence was called as to the standard of care required of the Ottawa Police Services Board (the “Board”) with respect to training, supervision, and oversight of its officers. I find, however, that this aspect of Roxanne’s claim does not fall within either of the two exceptions set out in Krawchuk.

[167] The conduct required of the Board in providing training, supervision, and oversight to its officers is not nontechnical. An ordinary person would not be expected to have knowledge of the requisite conduct. The evidence does not establish conduct on the part of the Board so egregious that it is obvious that the Board’s conduct fell short of the standard of care. Evidence is required of the precise parameters of the standard of care.

[168] Thus, in the absence of expert evidence on the issue of standard of care this aspect of Roxanne’s claim must fail.

[169] I turn to Roxanne’s claim for punitive damages on the basis of the failure of the Board to provide training, supervision, and oversight to its officers with respect to an individual’s Charter rights. In cross-examination, the officers were questioned as to their knowledge of a system, if any, by which the OPS (a) tracks findings of Charter breaches made against its officers in criminal proceedings, (b) informs officers of such findings, and (c) attempts to address those breaches in an effort to prevent future Charter breaches. The officers were unaware of any formal system in that regard in place at the OPS. There was otherwise no evidence led with respect to the existence of lack of a system in that regard at the OPS.

[170] In closing argument, the assertion made was that, as a result of the lack of such a system, an officer whose conduct is found to have been in breach of an individual’s Charter rights will not be informed of that finding or receive training so as to avoid such breaches in the future.

[171] For the following reasons, Roxanne’s claim for punitive damages on the basis of the failure of the OPS to train, supervise, and oversee the conduct of its officers with respect to Charter breaches fails:

• First, I am not satisfied that such a system is lacking at the OPS. The only evidence before me is that the officers who testified were unaware of the existence of such a system.

• Second, by reason of the lack of expert evidence with respect to the standard required of the Board, I am unable to find that the Board was negligent with respect to training, supervision, and oversight of Charter breaches.

• Third, there is no evidence before me as to any causal connection between any deficiency in the training, supervision, and oversight on the part of the OPS as relates to Charter breaches and the individual officers named as defendants in this action.

Issue No. 6 – Assessment of Damages

a) General damages

[172] Roxanne is entitled to an award of general damages based on my findings that she was the subject of an unlawful arrest, unlawful imprisonment, the use of excessive force, and negligent investigation.

[173] The evidence in support of Roxanne’s claim for general damages is found in Roxanne’s testimony, the evidence of her mother Mary Susan Cardill, the evidence (both oral and documentary) of psychotherapist Sandra Flear, and a small number of hospital and medical records filed pursuant to section 35 of the Evidence Act, R.S.O. 1990, c. E.23.

[174] Ms. Flear was the only health-care professional to testify at trial. No medical professional testified. No expert opinion evidence was led.

[175] The defendants did not call any witnesses to provide medical or healthcare evidence in response to the claim for damages.

[176] The medical and healthcare records filed are replete with hearsay. In assessing the general and all other heads of damages to which Roxanne is entitled, I rely only on those portions of the records filed that are admissible as evidence pursuant to the business records section of the Evidence Act.

▪ Physical Injuries

[177] Roxanne seeks compensation for the following physical injuries:

A black/swollen eye: The photographs taken of the left side of Roxanne’s face and entered as exhibits are of a poor quality. Based on the photographs, it is difficult to assess the extent of the black and/or swollen eye that Roxanne alleges she suffered. In any event, for the reasons set out above, I do not include a black and/or swollen eye in the assessment of general, non-pecuniary damages.

Two fractured bones in wrist: There is no evidence that prior to August 23, 2008, Roxanne experienced any physical problems with her right wrist. I have already found that on August 23, 2008 Roxanne suffered fractures of two bones in her right wrist. As a result of the fractures, Roxanne does not have full range of motion in her wrist and there is a bump on the outside of her right arm, slightly above the wrist. There is no evidence that the restricted range of motion has any impact on the function of the wrist. Roxanne was advised in the fall of 2008 to attend physiotherapy for her right wrist. She did not do so because she was too afraid to leave the home where she was staying at the time. There is no evidence that if Roxanne had attended physiotherapy she would have achieved a better recovery from the fractures.

Burn to left hand: The photographs taken in the days following the accident show a blister, in the form of a bubble, at the base of Roxanne’s left thumb towards the inside of her arm. Roxanne’s evidence was that she suffered the burn because of the extremely hot condition inside the second cruiser. The evidence as to the condition of the second cruiser is contradictory. I am unable to find on a balance of probabilities that the condition of the second cruiser was such that it resulted in a burn to Roxanne’s left thumb.

Abrasions and bruising: Roxanne suffered abrasions to her head, right shoulder, lower legs, and the top of her right foot. The bruising and abrasions resolved in the ordinary course. I have already found that the abrasions to the legs occurred at the time of the arrest, when Roxanne was taken to the ground and a struggle ensued. I am satisfied that the abrasions to the head, right shoulder, and foot are the result of the arrest and the struggle at that time.

Soft tissue injuries to both shoulders: Roxanne experienced pain in her shoulders following August 23, 2008. She saw Dr. Mark Aubry for a consultation in late 2013 and for a pre-surgical appointment in early 2014. Dr. Aubry’s clinical notes and records indicate that he diagnosed Roxanne with rotator cuff tendinitis in one shoulder. The report of an MRI done in late 2013 identifies “[m]inimal AC joint degenerative change. Degradation anatomical detail from motion artifact.” I am not satisfied that there is a causal connection between the conditions diagnosed five years after August 23, 2008 and the events on that date. There is insufficient evidence to support a finding that the problems experienced by Roxanne with her shoulders were, on a balance of probabilities, caused or contributed to by the events of August 23, 2008.

Lipoma in right scapula: Dr. Aubry’s clinical notes and records indicate that he also diagnosed Roxanne with a lipoma in the area of her right scapula. Once again, the diagnosis was made more than five years after August 2008. The lipoma was eventually surgically removed. There is insufficient evidence to support a finding that the lipoma is the result of the events of August 23, 2008.

[178] In summary, I find that the physical injuries for which Roxanne is entitled to compensation are the fractures of the two bones in her right wrist and the bruising and abrasions to her head, right shoulder, lower legs, and top of the right foot.

[179] A number of the injuries for which Roxanne is entitled to compensation were suffered at the time of and as a result of the struggle during the arrest—an arrest that I have found was made without authority. Roxanne was entitled to resist the unlawful arrest, even though it was being made by a police officer (R. v. Plummer (2006), 2006 (ON CA), 83 O.R. (3d) 528 (C.A.), at para. 48.) The resistance included Roxanne’s efforts to grab Adlard’s arm, the end result of which was that one of Adlard’s arms was scratched. I find that Roxanne’s conduct in resisting the arrest was reasonable in the circumstances. I have not reduced the assessment of general non-pecuniary damages because of Roxanne’s conduct at the time of the arrest.

▪ Psychological Injuries

[180] Roxanne also seeks compensation for psychological injuries including insomnia, anxiety, and post-traumatic stress disorder.

Psychological health prior to August 23, 2008

[181] Roxanne’s health and well-being prior to August 23, 2008 are relevant to the assessment of damages, in particular with respect to the psychological injuries Roxanne alleges she suffered. Based on Roxanne’s evidence and the admissible evidence from the records filed, I find as follows:

• During her childhood years, Roxanne was under the auspices of the Children’s Aid Society. Before she was adopted by the Carr family, Roxanne lived in foster care. In one of the multiple foster homes, she was the victim of physical and sexual abuse;

• In 2005 and 2006, Roxanne received treatment from a psychiatrist. The treatment included counselling and a prescription for an anti-depressant;

• In December 2005, Roxanne was the victim of an assault. The assault was the result of a domestic dispute involving Roxanne’s roommate and the roommate’s former partner. Roxanne was struck on the head with a baseball bat. As a result of the blow to the head, Roxanne suffered from headaches. She remained off work for a number of months following the assault; and

• Following the assault in December 2005, Roxanne continued under the care of a psychiatrist and received treatment for depression, anxiety, and borderline personality disorder.

[182] Roxanne testified that following the baseball bat assault she was diagnosed as suffering from seizures. Her evidence was that (a) the seizures were precipitated by stress and resulted in an inability to speak, and (b) by the summer of 2008 she had not experienced a seizure for a number of months.

[183] Ms. Cardill described her daughter’s condition following the December 2005 assault: Roxanne suffered from headaches, was untrusting of strangers, and became apprehensive. Ms. Cardill testified that she witnessed Roxanne have at least one seizure. She observed Roxanne’s eyes close for approximately 30 minutes and it appeared as if Roxanne had fallen asleep. According to Ms. Cardill, the seizures improved over time.

[184] Roxanne’s condition following the baseball bat assault was investigated by neuromuscular specialist, Dr. Corrin. In December 2006, Dr. Corrin reported to Roxanne’s family physician that the “diagnostic question” was whether Roxanne’s persisting complaints were “seizure versus functional”. The medical records do not provide any evidence of the answer to the “diagnostic question”.

[185] I am unable to conclude on a balance of probabilities that Roxanne was diagnosed with a seizure condition prior to August 23, 2008.

Psychological health subsequent to August 23, 2008

[186] Roxanne’s evidence was that as a result of the events on August 2008 she developed and continues to suffer from post-traumatic stress disorder (“PTSD”). She testified that the condition was diagnosed in 2009, following an emergency department visit to the Ottawa Hospital. The records of that attendance were not filed as evidence. There is, however, an entry in the Ministry of Health De-Coded List of Services for an attendance at the Ottawa Hospital on that date.

[187] Roxanne testified that the symptoms of PTSD she experienced and continues to experience include:

• The desire to spend time in solitude;

• The lack of a social life because of a desire to avoid people, crowds, and noisy environments;

• A heightened response to the sound of sirens;

• Fear of standing in front of open windows for fear of being shot;

• Being more easily startled, including by nearby, sudden movements; and

• A general fear of police and, specifically, a concern that she is being followed by either the police or people affiliated with Morgan.

[188] Roxanne testified that, as a result of the PTSD, she was unable to remain in Ottawa. She initially moved to Brockville and ultimately to Toronto, where she continues to reside. She described leading a solitary life. She manages her PTSD by spending time in nature, exercising, doing yoga, using aromatherapy, and listening to peaceful music.

[189] In 2010, Roxanne began to see psychotherapist, Sandra Flear. Ms. Flear testified and her clinical notes from May 2010 to May 2016 were entered as exhibits at trial. Ms. Flear has been a registered psychotherapist in private practice since 2004. As a psychotherapist, she is a member of a regulated health profession.

[190] Ms. Flear provides treatment in the areas of relationship therapy, trauma, and anxiety. Her psychotherapist training was with The Toronto Institute for Relational Psychotherapy from 2002 to 2007. In addition to that general training, she took an eight-month course related to the treatment of trauma.

[191] Ms. Flear acknowledged that as a psychotherapist she does not make diagnoses, including that she does not diagnose PTSD. She does, however, treat individuals who have been diagnosed with PTSD.

[192] Ms. Flear testified that it appears to her that Roxanne receives benefit from the counselling sessions. As of 2016, Roxanne appeared to be more stable and calm than she was when during the early part of the counselling. Roxanne concurred, testifying that there has, since 2009, been improvement in her symptoms.

[193] Ms. Flear anticipates that if Roxanne continues to receive counselling, the symptoms she experiences will decrease but will never be extinguished. Ms. Flear’s recommendation is that Roxanne continue to attend counselling once or twice a year for an indeterminate number of years.

[194] The only medical evidence with respect to Roxanne’s mental health subsequent to August 23, 2008 is a report of Dr. Wright dated January 2015. That report was filed as a business record pursuant to section 35 of the Evidence Act. The report indicates that when Dr. Wright prepared the report she was a psychiatry resident with the Mental Health Clinic at St. Michael’s Hospital in Toronto. A copy of Dr. Wright’s resume is not in evidence. Dr. Wright was not called to testify.

[195] Dr. Wright’s report, like the other documents filed as business records, is replete with hearsay. The admissible evidence from the report includes the following:

• Roxanne was referred by her family physician for a psychiatric assessment. Dr. Wright carried out that assessment over two days in January 2015.

• Dr. Wright diagnosed Roxanne as experiencing symptoms “most consistent with a diagnosis of post-traumatic stress disorder, with panic attacks specifier”.

• Dr. Wright also identified evidence of schizotypal personality traits that did not appear to be impacting Roxanne’s function and were likely “a normal variant”.

• The symptoms of borderline personality disorder/traits may be a form of “complex post-traumatic stress disorder, given the abuse [Roxanne] suffered growing up.”

[196] Without the benefit of a resume for Dr. Wright and oral testimony from her, it is difficult to determine the reliability of and weight to be given to her evidence.

Summary – psychological injuries

[197] Despite the deficiencies in the evidence, I am satisfied, on a balance of probabilities, that (a) subsequent to the events of August 2008 Roxanne suffered from PTSD, and (b) the symptoms of PTSD have persisted since that time.

[198] There is insufficient evidence to support a conclusion that as a result of events that pre-dated August 2008, Roxanne was a “crumbling skull” plaintiff. I find that events prior to August 2008 contributed to Roxanne being psychologically vulnerable. As such, she is a “thin skull” plaintiff.

[199] I am mindful, however, that (a) the lack of medical evidence and expert opinion evidence with respect to Roxanne’s psychological health prior to August 23, 2008, and (b) the extent to which pre-incident factors contribute to Roxanne’s ongoing psychological difficulties, not result in overcompensation.

▪ Summary – General Damages

[200] I assess the general damages to which Roxanne is entitled in the amount of $90,000.

b) Loss of Income, Competitive Advantage, or Earning Capacity

[201] Roxanne alleges that as a result of the injuries suffered on August 2008, she was unable to return to work in the information technology field and as a result suffered “a loss of income, loss of competitive advantage and/or loss of earning capacity” (statement of claim, para. 32).

[202] There is, however, no medical evidence, no evidence from a healthcare professional, and no evidence from a vocational expert to support a finding that, as a result of the injuries suffered on August 2008, Roxanne was unable and shall remain indefinitely unable to return to gainful employment. I therefore approach the loss of income component of Roxanne’s claim as one for damages for loss of earning capacity.

[203] Roxanne’s claim for damages under this heading is based on an intention to work in the information technology field. She had worked in that field for a number of years in Toronto, before returning to Ottawa, and for a number of months in Ottawa prior to August 2008.

[204] No evidence was led with respect to the labour market—for example, as to the availability of positions in the information technology field in Ottawa or Toronto in 2008 and the years since then. In addition, there is no accounting or actuarial evidence as to Roxanne’s annualized loss of income under any scenario from August 2008 to a chosen date or dates of retirement.

▪ Roxanne’s Education, Employment History, and Historical Income

[205] Roxanne completed high school in Ingersoll, returned to Ottawa, and attended Algonquin College in the Culinary Management Program. She worked in that field both in Ottawa and Toronto: her jobs included being a cook, a baker, and a chocolatier. Roxanne returned to Algonquin College for a computer technology program. In the late 1990s, Roxanne secured a position with IBM. She worked full time for IBM for seven or eight years.

[206] Based on Roxanne’s testimony and the income tax returns entered as evidence, I find that Roxanne’s work history and income in the five years immediately preceding August 2008 were:

2003 - Full-time employment with IBM and earnings of $35,676

2004 - Full-time employment with IBM and earnings of $43,639

2005 - Full-time employment with IBM and earnings of $32,279

2006 - On short-term disability for a number of months and then left the employ of IBM, with a total income (including short-term disability benefits) of $13,623

2007 - Unemployed and received unemployment insurance benefits of $11,770

2008 - Worked full time with Corel for approximately five months before being laid off in July, with employment income of $24,492, unemployment insurance benefits of $6,678, and other unexplained income of $1,687.

[207] Roxanne’s evidence was that the entire department in which she worked for Corel was laid off in July 2008. There is no evidence as to Roxanne’s performance level during her five months with Corel or her seven years with IBM. No documents from Roxanne’s personnel file with either company are in evidence before me. I have no sense of the view that Roxanne’s employers had of her skill set, performance generally, or qualities as an employee.

[208] There is no evidence that Roxanne attempted to find work after being laid off by Corel and prior to August 23, 2008. She testified that it was her intention, as of that date, to attempt to secure work in the information technology field and to continue working in that field indefinitely.

▪ After August 2008

[209] Roxanne worked for two very brief periods subsequent to August 2008. She first worked in Ottawa in 2008 and then in Brockville in 2009. She testified that she left both positions because of a concern that the police had located and were watching her.

[210] Roxanne also testified that, after August 2008 and before leaving Ottawa in 2009, she applied for a position with Nokia, had a couple of interviews, and was scheduled for a further meeting at Nokia. Roxanne described being close to securing the position for which she had applied. She did not attend the further meeting because she chose to leave Ottawa. Roxanne testified that her reason for leaving Ottawa was fear that the police were watching her.

[211] Prior to leaving Ottawa, Roxanne registered for and began the paralegal program at Algonquin College. She attended only briefly because she decided that the program was not for her.

[212] Roxanne’s evidence was that while the four charges from August 2008 were still outstanding it would have been impossible for her to obtain a security clearance (as she had done when working with IBM), if required, for a position with an information technology company.

[213] Roxanne has otherwise been unemployed since August 2008 and relying on social assistance for income. For the years 2009 through 2014, Roxanne’s income ranged from approximately $5,000 to $7,000.

▪ Summary – Loss of Earning Capacity

[214] I find that the injuries suffered by Roxanne have had an impact on her ability to return to work.

[215] When assessing damages based on loss of earning capacity, it is helpful to have actuarial and/or accounting evidence setting out an arithmetic calculation upon which to base the assessment of damages under this heading. I do not have the benefit of evidence of that kind.

[216] I have considered Roxanne’s experience after the baseball bat assault. Following that incident, it took Roxanne approximately two years before she returned to full-time employment.

[217] It was not until April 2011 that the four charges against Roxanne were withdrawn. I accept Roxanne’s evidence that the existence of those charges posed a hurdle to obtaining employment, in particular employment for which a security clearance was required. I find that, for two years and eight months, the charges posed an impediment to Roxanne securing employment. Roxanne would not have been expected to secure employment immediately following the withdrawal of the charges.

[218] Taking into consideration Roxanne’s historical experience and the timing of the withdrawal of the four charges, I use on three years income as an arithmetic basis for the assessment of damages for loss of earning capacity.

[219] Based on Roxanne’s historical annual income when working at IBM (an average of approximately $37,300) and the income earned in five months when working at Corel (approximately $25,000). I arrive at an annual income of $40,000.

[220] I assess the damages to which Roxanne is entitled for loss of earning capacity in the amount of $120,000 ($40,000 x 3).

[221] I do not reduce the total of $120,000 because of income received in the two-year period following August 2008. My arithmetic calculation not intended to reflect an actual past loss of income. Damages awarded for loss of earning capacity are not subject to reduction for income earned to the date of trial.

[222] Following oral argument, a motion was made on Roxanne’s behalf for leave to amend the statement of claim to increase, from $150,000, the damages claimed for loss of income, loss of competitive advantage, or loss of earning capacity to the amount awarded if in excess of $150,000. Leave to amend the statement of claim is not required and the motion is dismissed.

c) Out-of-pocket and Future Expenses

[223] The out-of-pocket expenses claimed are for (a) the Ministry of Health subrogated claim, (b) the cost of the sessions with Ms. Flear to the date of trial, and (c) the amount of the invoice delivered by counsel who represented Roxanne on the four charges arising from August 23, 2008. The future expenses claimed are for the counselling sessions that Ms. Flear has recommended Roxanne to attend.

▪ Ministry of Health Subrogated Claim

[224] The parties agree that the subrogated claim on behalf of the Ministry of Health for cost of health-care services provided is in the amount of $1,538.13.

▪ Sessions with Ms. Flear (2010 to 2016)

[225] The fee for each session is $100, inclusive of HST. Ms. Flear testified that she continued with Roxanne’s sessions without being paid in full. Roxanne paid anywhere from $0 to $80 per session over time.

[226] Ms. Flear estimated that, from May 2010 to the date of trial, Roxanne had attended approximately 125 sessions. From the clinical notes filed as exhibits, I count approximately 70 sessions. In addition to the 70 sessions for which substantive notes were made, there were tens of entries for appointments that Roxanne did not attend. Those entries indicate a “no-show” for or cancellation of an appointment.

[227] The substantive notes for the sessions are not exclusively related to the events of August 23, 2008. The subjects discussed include other circumstances or events with which Roxanne struggles. For example, there are a number of references to abuse suffered by Roxanne in the foster care system during her childhood. I am also mindful of the fact that Roxanne was under the care of a mental health professional from time to time prior to August 2008.

[228] I therefore find that 50 percent of the cost of the sessions is related to the PTSD arising from the events of August 23, 2008, and the other 50 per cent of the cost is for matters unrelated to those events. I assess the out-of-pocket expenses for the sessions with Ms. Flear to the date of trial at $3,500 (50 percent of 70 sessions at $100 per session).

▪ Invoice of Counsel in Criminal Matter

[229] On the basis of my findings that the arrest was unlawful and that Adlard’s investigation of the situation at the home was negligent, I find that Roxanne is entitled to damages for the expenses associated with having counsel to represent her in the criminal matter.

[230] The invoice delivered to Roxanne by her counsel in the criminal matter is in the amount of $17,273.71. The invoice was delivered to the office of Roxanne’s counsel in the matter before me. The invoice is based on $15,000 for fees, HST in the amount of $1,950.00, and disbursements totalling $323.71 (process server and photographic printing).

[231] Roxanne testified that her counsel attended court on her behalf on at least 25 occasions. Roxanne was not required to and did not attend court on each occasion. The charges were withdrawn in April 2011.

[232] The invoice delivered is a single page. The description of the services rendered is:

To meetings with you; to court appearances, to receipt and review of disclosure; attendance at Judicial and Counsel Pre-trials; preparing stay application; attendance for trial on trial dates where the matter was not reached; preparation of McNeil, O’Connor and Stinchcombe applications and application records.

[233] No additional particulars are provided by way of either dockets attached to the single-page invoice or a breakdown by number of hours, hourly rate, and total time spent by each timekeeper (lawyer, clerk, etc.) whose fees are included in the invoice.

[234] There is no evidence as to the retainer agreement between Roxanne and her counsel in the criminal matter—whether it was on a fee-for-service or block fee basis.

[235] The assessment of damages is not identical to an assessment of a solicitor-client account. However, I am required to consider whether the damages claimed are reasonable. In the absence of better particulars with respect to the nature of the retainer and the basis for the fees charged, I am not prepared to award damages based on the full amount of the invoice. I find it reasonable to allow, as damages, 70 per cent of the fees charged.

[236] I assess the damages for expenses incurred in response to the criminal charges at $12,188.71 ($10,500 for fees, $1,365 for HST, and $323.71 for disbursements).

▪ Expense for Future Counselling Sessions

[237] Ms. Flear recommended that Roxanne continue to attend counselling sessions once or twice a week for an indeterminate number of years. Ms. Flear estimated that the costs associated with the sessions would be $6,000 per year.

[238] Ms. Flear acknowledged that she treats, but does not diagnose PTSD. She was not qualified to give opinion evidence as to future care needs. I therefore give little weight to her opinion as to Roxanne’s long-term treatment needs.

[239] In addition, I have already found that the substance of the sessions with Ms. Flear is not restricted to the PTSD with which Roxanne was diagnosed following August 2008.

[240] I accept Ms. Flear’s evidence that the sessions are of benefit to Roxanne and that she would benefit from continuing the sessions. I assess the general pecuniary damages for future counselling sessions in the amount of $20,000.

▪ Summary - Expenses

[241] The damages for out-of-pocket expenses and future expenses to which Roxanne is entitled total $37,226.84 ($1,538.13 + $3,500 + 12,188.71 + $20,000).

d) Breach of Charter Rights

[242] Roxanne claims damages pursuant to section 24(1) of the Charter. There is a four-step process to determine whether damages are payable as a result of a Charter breach (Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 4). The first step is to establish that a Charter right has been breached. That step was addressed above under Issue No. 4. Roxanne has established that her sections 7, 8, and 9 Charter rights were breached.

[243] The second step is for the claimant to demonstrate that damages are a just and appropriate remedy. The claimant must show that damages are “functionally required to fulfill one or more of the objects of compensation, vindication of the right, or deterrence of future Charter breaches” (Ward, at para. 32). Throughout the afternoon and evening of August 23, 2008, the conduct of a number of the officers demonstrated a lack of concern for Roxanne’s Charter rights. I find that their collective lack of concern warrants compensation and “engages the object of vindication of the right[s] and deterrence of future breaches” (Ward, at para. 66.).

[244] At the third step, it is open to the responding party to establish that there are countervailing factors that render an award of damages under section 24(1) of the Charter inappropriate or unjust. Those factors include the existence of alternative remedies and the potential interference an award of damages would have in good governance (Ward, at para. 33). In the matter before me, I need only consider the existence of alternative remedies.

[245] The award of damages to Roxanne under a number of other headings does not preclude an award of damages for breach of her Charter rights. I am mindful, however, that by virtue of the other damages awarded Roxanne is to a large extent put in the same position she would have been had her Charter rights not been infringed.

[246] The fourth step is the assessment of the quantum of damages to be awarded. Of the most concern to me in determining the quantum of damages, if any, is the conduct of the officers in leaving Roxanne naked in a holding cell for over two hours. I find that the indignity and humiliation experienced by Roxanne in that setting warrants compensation. My intention in awarding damages under this heading is that of deterrence of future Charter breaches of this kind.

[247] Each of Marcil, Desjourdy, Morris, and Cybulski was involved in the removal of Roxanne’s clothes. They each played a different role in the event. Some of the officers are more responsible than others for the alert being called, for the decision to remove Roxanne’s clothes, and for Roxanne being left naked in her cell for more than two hours. I do not, however, differentiate between the four officers in terms of liability for the damages awarded.

[248] Roxanne is entitled to $7,500 in damages for breach of her section 7 Charter right to security of the person as it relates to being rendered naked and left in that state in her cell for a period of more than two hours.

e) Punitive Damages

[249] Punitive damages are awarded very much as the exception and not the rule (Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595). The guiding principles with respect to punitive damages include the following:

• Punitive damages are awarded only if there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour;

• Punitive damages are awarded with the intent of punishment of a defendant; not as compensatory damages for a plaintiff;

• One of the goals in awarding punitive damages is to deter others from acting in the same manner as the individual against whom punitive damages are awarded;

• Another goal is to express the community’s denunciation of the behaviour giving rise to the award; and

• Punitive damages are only awarded when the compensatory damages awarded are insufficient to accomplish the objectives of punishment, deterrence, and denunciation.

[250] Compensatory damages for unlawful arrest, negligent investigation and excessive use of force and damages for a breach of Charter rights have been awarded to Roxanne. The damages awarded under sections (a) through (d) above provide reasonable compensation to Roxanne for the injuries and losses she has suffered. In addition, the damages awarded pursuant to the Charter address the object of deterrence.

[251] I find that conduct of the officers who left Roxanne naked in the holding cell for over two hours was high-handed and a marked departure from the standards of ordinary behaviour.

[252] However, I find that the totality of the damages otherwise awarded is sufficient to fulfil the functions of punishment, deterrence, and denunciation in the circumstances of this case. I therefore make no award of punitive damages.

Disposition

[253] There is no finding of liability directly as against the Ottawa Police Services Board (the “Board”). There are, however, two bases upon which the Board is liable to Roxanne for the damages awarded. First, as the employer of the individual officers found liable to Roxanne, the Board is vicariously liable for the conduct of its officers. Second, pursuant to section 50 of the Police Services Act, R.S.O. 1990, c. P.15, the Board is liable for the tortious conduct of its officers.

[254] In summary, the defendants are liable to Roxanne as follows:

1. Constable Adlard (false arrest, false imprisonment, excessive use of force, and negligent investigation), Special Constable Marcil (excessive use of force), and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for the following damages:

a) General damages in the amount of $90,000.00;

b) Damages for loss of earning capacity in the amount of $120,000.00; and

c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of $37,226.84.

2. Constable Cybulski, Special Constables Morris and Marcil, Sergeant Desjourdy, and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for damages in the amount of $7,500.00 pursuant to section 24(1) of the Charter of Rights and Freedoms.

[255] The balance of the claims against the defendants are dismissed.

Pre-Judgment Interest and Costs

[256] The issues of pre-judgment interest and costs remain to be addressed. If the parties are unable, on or before August 31, 2017, to resolve one or both of those issues, counsel shall:

a) Make arrangements through the Trial Co-ordinator’s Office to appear before me to make submissions with respect to any unresolved issue; and

b) Prior to that appearance, deliver written materials, in accordance with the Rules of Civil Procedure, in advance of such appearance.

Madam Justice Sylvia Corthorn

Released: July 14, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Roxanne Carr

Plaintiff

– and –

Ottawa Police Service Constable Cindy Cybulski, Ottawa Police Service Constable Michael Adlard, Ottawa Police Service Constable Shawn Virgin, Ottawa Police Service Constable Darren Shore, Ottawa Police Service Detective Constable David West, Ottawa Police Service Constable M. Morris, Ottawa Police Service Constable Richard Marcil, Ottawa Police Sergeant Steven Desjourdy and the Ottawa Police Services Board

Defendants

REASONS for JUDGMENT

Madam Justice Sylvia Corthorn

CITATION: Carr v. Ottawa Police Services Board, 2017 ONSC 4331

COURT FILE NO.: 10-49203

DATE: 2017/07/14

Released: July 14, 2017