Sivapalan v. Niagara Police Services Board
CITATION: 2018 ONSC 2940
COURT FILE NO.: 54625/13
DATE: 2018-05-09
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shamila Sivapalan, Plaintiff
AND: Niagara Police Services Board, Defendant
BEFORE: Mr Justice Ramsay
COUNSEL: Plaintiff in person; Mickey Cruickshank for the Defendant
HEARD: May 9, 2018 at St Catharines
ENDORSEMENT
[1] The plaintiff moves for
a. Summary judgment;
b. An order striking the defence for failure to produce relevant material;
c. An order requiring a formal criminal investigation into the events of August 19, 2011;
d. An order requiring the Defendant to provide a written apology from several police officers; and
e. An order amending the Plaintiff’s police record.
[2] The plaintiff is suing the police for arresting her without reasonable grounds and with excessive force.
Summary judgment
[3] On the motion the plaintiff has filed an affidavit that proves several records. She contends that these records prove her case to the extent that there is no genuine issue that requires a trial. The records show the following.
[4] From the 911 recordings it appears that on August 19, 2011 the plaintiff went to the Willow Inn in Niagara Falls with some friends. She called 911 and hung up. She then either called back or was reconnected and told the dispatcher that she was walking toward the Falls and being followed. She had had one alcoholic drink and some marijuana brownies and she was afraid of the people she was with. She can be heard on the tape saying, “stay away from me bitch.” She described herself as paranoid.
[5] According to the police report the officers were dispatched to Lundy’s Lane at Kalar for an intoxicated female. They found her with paramedics. The officers were told that the subject had been drinking and possibly using illegal drugs. The plaintiff smelled of alcohol. She appeared to be in a paranoid state and did not want to go to hospital. She jumped out of the ambulance. The police arrested her for being intoxicated in a public place because they were concerned for her safety. They arrested her after a struggle and put her into the police car. They transported her to the police station where she was lodged in a cell after a struggle and left to be released when sober.
[6] Records of the Rouge Valley Health System emergency department show that the following day the plaintiff ran away from her parents acting scared. She was “acting strange on TTC, TTC called police. Refusal to talk or give history. Arrogant attitude.” Lab results were positive for cannabinoids and Lorazepam.
[7] The plaintiff submits that the lab results prove that she was given a date rape drug and that there was no reason to arrest her. The police ought to have investigated the attempted sexual assault instead of taking her to the lockup.
[8] I reject this argument. The lab results show that the plaintiff had Lorazepam and cannabinoids in her system. There is no evidence that Lorazepam is a date rape drug, assuming that Lorazepam taken before the arrest would still be in her system the next day, another fact that is not in evidence. The arresting officers could not have known the lab results. The plaintiff did not report an attempted sexual assault. They had no reason to investigate one.
[9] The plaintiff has also submitted without notice to the defendant a copy of the defendant’s policy on arrest of persons in states of excited delirium. She says that is proves that the officers violated their own policy by taking her to the lockup instead of the hospital.
[10] I reject this argument as well. The evidence does not permit me to say whether it was patent to the officers that the plaintiff was in a state of excited delirium as defined by the policy. In any event, she was examined by paramedics and she refused to go to the hospital. The police could not force her to submit to further medical attention.
[11] The evidence on the motion does not satisfy me that there is no genuine issue for a trial. Resort to my additional fact finding powers in Rule 20.04 (2.1) and (2.2) would not assist.
[12] I would only add that if the plaintiff had chosen to put her own evidence before me as to the events of the evening in question, and the defendant had therefore found it necessary to file evidence of its own witness’s accounts, the examinations for discovery would have shown that there is clearly a credibility question that requires a trial. The eyewitnesses simply do not agree on the central facts. This is not an apt case for summary judgment.
Failure to make disclosure
[13] The plaintiff complains of two items of evidence not disclosed:
a. The complete 911 tapes; and
b. The fact that she got on the wrong ambulance.
The 911 tapes
[14] The defence disclosed a copy of the recordings of the plaintiff’s conversations with the police dispatcher and the ambulance dispatcher. The defendant made a Freedom of Information Act request of the ambulance service and got their tape, which only contained the conversation with the ambulance dispatcher. I listened to both recordings. The difference is that the defence provided the plaintiff’s conversations with police and ambulance while the ambulance service gave her only what they had – her conversation with them. There is no reason to think that anything was withheld.
The wrong ambulance
[15] There is no evidence that the plaintiff got on the wrong ambulance. The only evidence the plaintiff relies on is the following exchange between her and defence counsel on discovery:
Q. And did you go up to the ambulance …
A. Yes.
Q. … or did they go up to you?
A. I went up to the ambulance.
Q. And what happened?
A. One of the paramedics came out, opened the back door and I jumped in. …
Q. Did he indicate at any time that … were they … did you find out whether they were the ambulance that was dispatched from 911, or was it just random that they were driving down the street?
A. I assumed they were the ambulance that was dispatched from 911.
Q. Okay. And do you recall whether … was that mentioned at all?
A. No. I stated to the operator that they were here, and the operator had said, “Don’t worry, ma’am, the ambulance is on its way.”
[16] Obviously, the plaintiff’s contention that the defence failed to disclose that she had got on the wrong ambulance is the product of her misunderstanding of her own evidence.
[17] The motion to strike the defence for failure to make proper disclosure is dismissed.
Other relief sought
[18] The dismissal of the other heads of relief sought is inevitable given the dismissal of the motion for summary judgment.
[19] The parties may make written submissions to costs not exceeding three pages in length to which may be appended a bill of costs and offer to settle, if any. The defendant’s submissions are due within 7 days of release of this endorsement. The plaintiff’s are due within 14 days of release of this judgment.
J.A. Ramsay J.
Date: 2018-05-09