COURT FILE NO.: CV-10-406201

DATE: 20180524

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Esau Max Wynter Jr.

Plaintiff

– and –

Toronto Police Services Board

Defendants

Andrew Stein and Jonathan White, for the Plaintiff

Douglas O. Smith and Samantha Bonanno, for the Defendants

HEARD: December 4, 5, 6, 7, 11, 12, 13 and 15, 2017.

REASONS FOR JUDGMENT

Madam Justice D.A. Wilson

[1] The Plaintiff, Esau Max Wynter Jr. (“Esau”) brings this action against the Toronto Police Services Board (“the police”) and various officers claiming damages arising from injuries sustained on September 24, 2009 during the execution of a search warrant at the apartment where Esau lived with his mother and brother. Esau alleges that during the execution of a search warrant the police officers used excessive force and, as a result, he suffered various injuries and sustained damages. The various Defendants vehemently deny this.

[2] Certain facts are not in dispute. Esau lived with his mother, Blossom, and brother, Bass, at 80 Mornelle Court, Scarborough, in apartment 211. The search warrant was obtained on September 23, 2009 by the Toronto drug squad on the basis of information received from a confidential informant. The warrant authorized the search of the apartment and of Esau and Bass Wynter between 11:30 p.m. and 6:00 a.m. on September 24, 2009 for possession of 2 handguns and ammunition. It is not disputed that the search warrant was properly obtained.

[3] Because firearms were believed to be on the premises, the Emergency Task Force (“ETF”) was contacted to gain access to the apartment and secure it, after which the drug squad officers would conduct the search.

[4] The ETF attended at the apartment and broke down the door with a metal ram at 2:13 a.m. and deployed a distractionary device in the front entranceway. The officers entered the apartment. Inside, Blossom was sleeping in the living room, as was her friend, Angela Robinson (“Angela”), and a toddler they were babysitting. The apartment had three bedrooms located down a hall to the left of the entranceway. The first bedroom was Blossom’s. Bass was in bedroom number 2 and Esau was sleeping in the last bedroom with his girlfriend Tracy Smilie (“Tracy”). Tracy and Esau were both students at Centennial College and Tracy was 2 months pregnant.

[5] The ETF officers shouted “Police! Get Down!” numerous times after they entered. During the search, a loaded semi-automatic handgun was located in a safe in Bass’s bedroom; as well, a quantity of crack cocaine was discovered. At this point, Bass admitted that the gun, ammunition and drugs were his and he was arrested and taken to the police station. All of the other people in the apartment were released.

[6] What transpired after the officers entered the apartment is hotly disputed by the parties. However, it is common ground that during the course of the officers securing the premises, Esau suffered injuries. The issue, in a nutshell, is whether Officers Cavanagh and Contant from the ETF used more force than was reasonably necessary to gain control over Esau.

[7] The officers allege that he was resisting arrest and refusing to comply with their directions and they had to use a certain amount of force to obtain compliance; the Plaintiff asserts that he complied with their requests and the use of force was not necessary and cannot be justified. As a result, the Plaintiff suffered damages, both physical and emotional, which continue to affect him on a daily basis.

ESAU WYNTER

[8] Esau was born in 1989 and at the time of these events he was 20 years old. He had lived in the Mornelle Court apartment with his brother and mother since 1999. He and Tracy had been dating for over a year and both of them were students at Centennial College. They were planning on getting an apartment together and had bought various items for their move, which they stored in Esau’s bedroom. The room was cluttered with the things they had purchased in anticipation of moving out.

[9] On September 23, 2009, he and Tracy went to bed around midnight. Esau testified that he has always been a very sound sleeper. About 2 hours after going to sleep, he was woken up when the officers entered his room. He was lying on his back in his bed and he sat up. A large man was directly in front of him and he hit him in the face; Esau thought he may have been hit with a gun. The person then grabbed Esau’s right hand and threw him to the ground.

[10] Esau was on his stomach on the floor; he put his hands up in an attempt to protect his face. He was kicked repeatedly with heavy boots in the face and on both sides of his body. He felt someone stomp on his legs. Esau was trying to protect himself from the blows. He felt blood on his face and he saw it on the ground. He tasted blood in his mouth.

[11] Esau denied that the person who assaulted him identified himself as a police officer or that he asked him to show his hands and stop resisting.

[12] Esau testified that the man who hit him first looked like a soldier from one of his brother’s video games: he was wearing a helmet and body armor and he was carrying a machine gun.

[13] While he was on the ground being kicked, he saw another officer dressed in the same attire enter his bedroom and kick over the vase that was just inside the bedroom door. It shattered and pieces of glass flew. Esau turned his face away to avoid the shards of glass. He had no idea who was hitting him or why; he thought perhaps it was a robbery. He estimated the assault went on for a few minutes. He recalled saying that Tracy was pregnant.

[14] Esau was placed in handcuffs and that is when he realized the men who had been hitting him were police officers. He asked one of them to wipe the blood that was running down his face from the cut over his left eye. The officer responded, “I am not going to wash your fucking face.” He was thrown onto the bed and paramedics came into the bedroom and put a piece of gauze over his left eye. He was taken out of his bedroom into the living room; he saw the others sitting there. No-one else was injured.

[15] While he was sitting in the living room, Esau saw a number of police officers “tearing up the place”. One of the officers announced that a gun and drugs had been found. His brother, Bass, was taken out into the hall by some officers. Tracy was crying. His mother, Angela and the toddler were brought into the living room by some police officers. His mother was really upset. His head was throbbing and his body was in pain. At some point, the handcuffs were removed. The officers arrested his brother and at approximately 4:00 a.m. they left.

[16] Esau denied that any of the officers asked if he needed medical attention or if he wanted to make a complaint. He denied that the officer in charge of the operation, Detective Irish, spoke to him. He agreed that he did not tell any of the police officers that he had been assaulted during the search.

[17] Esau was in a lot of pain so he drove himself to the hospital. He told the woman at the desk that he had been beaten up by the police and she suggested that he ought to have some photographs taken of his injuries. Both of his eyes were bloodshot and he had difficulty seeing. A couple of his teeth were chipped and broken. His face was swollen and he had pain in the area of his ribs. He told the doctor in the emergency room that he had been assaulted by the police, that he had marks on his body from being stomped on and that his teeth were damaged from the assault.

[18] The hospital records at 5:20 a.m. indicate that the right side of his face and lip was swollen, the left forehead had a laceration and there were abrasions to the left shoulder area.

[19] The cut above his eye was stitched at the hospital, a facial x-ray was done which was normal, and he was discharged. Esau drove to the police station and had photographs taken of the injuries to his face and mouth; he had a couple of chipped teeth. When he arrived home, Tracy took some more photographs, which were entered into evidence at the trial.

[20] The next day, Esau went to see his family physician, Dr. Verschuren. He told him that he had been assaulted by the police and that he had headaches and ringing in his ears and he could not sleep. The doctor examined him and gave him some prescriptions. He told Esau he needed to be seen by some specialists for the various injuries.

[21] Dr. Verschuren removed the stitches and told him he needed some counselling. He sent him to an otolaryngologist, Dr. Minz, because of the tinnitus. She arranged for a CT scan of his head and some hearing tests and the results were normal. He had problems with his vision and had floaters in his eyes so Dr. Verschuren sent him to an eye specialist, Dr. Goldberg.

[22] Esau was sent to a dental surgeon, Dr. Fox, and was told he needed a root canal and a crown to fix his teeth. However, the cost was estimated to be $1,656 and Esau did not have the money to pay for the dental work so he has not undertaken it. He feels self-conscious about his teeth. In cross examination, Esau agreed that he told the dentist that he had fallen and damaged his teeth; he did that because he did not want to tell him about the altercation with the police.

[23] Following the assault, Esau had difficulty sleeping and he had to sleep with the lights on. His family told him that his personality had changed; whereas he used to be easy-going, he became anxious. He was angry much of the time. If he saw a police officer, his heart would race. Dr. Verschuren prescribed him medication for his anxiety. He used marijuana to relieve his stress. He returned to school but he could not concentrate and he did poorly. He failed the second semester and did not return to Centennial College.

[24] His family doctor told him he had post-traumatic stress disorder and depression and he needed to see a specialist, but Esau was in denial. He saw the psychiatrist once and he recommended that Esau attend an anger management program. He did not follow this suggestion and never went back to the psychiatrist.

[25] Esau acknowledged that he had been involved in a motor vehicle accident on December 31, 2009, in which he was knocked unconscious. However, he stated it was a small accident with no lasting effects.

[26] Esau testified that he continues to feel the psychological effects of the assault. In the summer of 2017, his lawyer referred him to a psychologist, Dr. Ilacqua, and Esau has taken counselling from him. He feels it is helping him. Esau has not returned to school. He has done some odd jobs for cash, but at present he is not working.

Dr. Ilacqua

[27] Dr. Ilacqua has seen Esau on five occasions for individual psychological therapy on referral from Esau’s lawyer. These sessions commenced in August of 2017 with the most recent being November. Esau described problems with memory and concentration.

[28] Dr. Ilacqua noted that Esau had developed his own coping strategies over time, but he worried that he might be vulnerable in the future if another difficult event occurred. He believed that Esau was motivated to improve. He would like to have 1 or 2 more appointments with him to finish the intervention.

Tracy Smilie

[29] Tracy has two children with Esau: Jeremiah who is 7 and Zachary who is 2. Although she is in a relationship with Esau, they do not live together.

[30] Tracy met Esau in 2008 when they were both students at Centennial College. After they started dating in November 2008, she often slept overnight at the apartment where Esau lived with his mother and brother. In April 2009, she and Esau became engaged. In August 2009, Tracy discovered she was pregnant. As a result, she and Esau planned to move out to their own apartment. They bought various items for their apartment, such as a television and towels, and stored them in Esau’s bedroom, on the left side of the bed near the wall. She bought a tall glass vase the day before and she placed it near the computer desk.

[31] On September 23, 2009, Tracy was at the apartment with Esau and his family. She and Esau went to bed around 10:00; she slept on the left side of the bed and Esau slept on the right. At some point in the middle of the night, Tracy heard a loud bang which caused her to wake up. A police officer with a handgun entered the room, turned on the light and said, “Get the fuck off the bed!” Esau was asleep beside her. That officer came over to Esau and struck him in the face with the handle of his handgun. Another officer with a long gun came into the bedroom and kicked over a vase that she had purchased the day before. He told her to get out of the bedroom. Tracy could not recall how the officers were dressed.

[32] Tracy was terrified but she could not get off of the bed because of the objects that were piled up next to the bed. She saw the police officer grab Esau by the undershirt and throw him to the floor. He was on the floor on his stomach with his arms stretched out like a starfish. The first officer had his knee on Esau’s back and the other one was kicking him about the face.

[33] A third police officer entered the bedroom; Tracy was still on the bed. He walked over to her and told her to get out of the room and she told him that she was pregnant. By this point, Tracy was crying and was hysterical. This officer, who had a long gun, pointed it at her and motioned for her to exit the bedroom. She fell to the ground off the bed and crawled along the floor. The police officer was blocking the bedroom door with his foot; he told Tracy not to look back at Esau. However, she turned around and saw two officers trying to pin Esau’s hands behind his back. Esau was asking them to stop and he was crying. The one officer still had his knee on Esau’s back; he called for the paramedics, who quickly came in. The third officer told Tracy she could leave the room.

[34] Tracy ran into the living room where Blossom and Angela were sitting. Two police officers brought Esau to the living room. He was bleeding from his head, he had a swollen lip and in Tracy’s words, he was “unrecognizable.” Esau was taken out of the apartment. One of the officers told Tracy she could leave, so she called her mother who came and picked her up.

[35] Tracy saw Esau a couple of days later. He had a bandage over his left eye and a couple of his teeth were missing or broken. His face and lip remained swollen. She noticed a change in his personality. Before the incident, Esau was cheerful, energetic and outgoing; people liked him. He was attending college in the nursing program. After the assault, he was fatigued, irritable and had difficulty sleeping. He insisted on sleeping with the lights on and the door open. Esau stopped going to school and never explained why; he became withdrawn and would not talk about his emotions. She felt like she was alone during her pregnancy and the intimacy between them was not the same.

[36] Tracy gave her evidence in a straightforward fashion and appeared to answer questions honestly, without attempting to embellish her testimony.

Blossom Wynter

[37] Blossom has been living in the Mornelle Court apartment for 18 years. On September 24, 2009, Blossom was sleeping on the bed in the living room with a 2-year-old toddler she was babysitting. Angela was asleep on the couch. She heard two bangs on the door and then police came in and there was a loud sound and then there was smoke. A police officer entered her apartment and she watched him hit the vase in the front hall twice and break it. He turned the gun towards her. Other officers came in and ran down the hall towards the bedrooms of her sons. She was taken out to the stairwell, along with Angela and the child.

[38] When she returned to the apartment, she saw Esau shivering in his boxers, with his face bloody and swollen. Blossom was hysterical and she fell to the ground. She recalled one of the officers telling her to be careful about the shards of broken glass while another officer said he “did not fucking care.”

[39] Blossom did not know who had beaten her son and she asked who was responsible. One of the policemen, Officer Irish, told her Esau should go to a doctor and he gave her his card and asked her to call him. Sometime later, after she noticed money was missing from her bedroom, she called and left a message, but the officer did not return her call.

[40] Blossom described Esau as easy-going before this incident; he helped her around the apartment and was a good communicator. After the assault, Esau became withdrawn and she could not get her son to talk to her. She thought he was depressed; he complained about noise and said he had headaches. Although he attempted to return to school, he was unable to concentrate so he quit. She tried to get him to seek professional help, but he refused. Blossom went to see Dr. Verschuren to find out what was going on with her son, but he told her he could not speak with her without Esau’s consent.

Angela Robinson

[41] Angela has been friends with Blossom for 30 years. She stays in Blossom’s apartment most of the time and does volunteer work in the building. She was sleeping in the living room on September 24, 2009 when she heard a bang on the door and then a “fireball” was thrown into the entranceway. She and Blossom and the child were taken out of the apartment into the stairwell.

[42] When Angela returned to the apartment, she saw Esau in boxer shorts with his face covered in blood. Angela heard the police officer ask Bass if he was going to make a deal, then Bass was taken out of the apartment.

[43] Since this incident, Angela testified that Esau’s personality has changed. He is no longer easy-going and he sleeps with his door open at night.

Dr. Verschuren

[44] Dr. Verschuren has been the family doctor for Esau since 2002. He described him as a “normal kid” without any issues. There had not been any indication of drug or alcohol use in his prior physical examinations.

[45] Esau came to see Dr. Verschuren on September 25, 2009 and told him that he had been beaten in the face with a gun. Dr. Verschuren examined him and noted bruising of the scalp on the right side, bleeding in both eyes, bruising around the eyes, swelling of the right cheek, a laceration above his left eye and 2 chipped teeth. Esau was complaining of pain in his back. Dr. Verschuren prescribed medication and told him to return in a week’s time.

[46] Over the next few weeks, Dr. Verschuren saw Esau for complaints related to the events of September 24th. He complained of flashing lights in his eyes, so Dr. Verschuren referred him to an ophthalmologist. He experienced ringing in his ears, so he was referred to an otolaryngologist. He recommended Esau undertake physiotherapy for the neck and back pain. On December 21, Blossom came to his office and said her son had undergone a personality change and was withdrawn. Because there was not signed consent, Dr. Verschuren was unable to discuss Esau’s condition with her.

[47] On March 12, 2010, Esau came to see Dr. Verschuren complaining of nightmares, inability to sleep, anger issues and inability to study. He advised Dr. Verschuren that he was using alcohol and marijuana to alleviate his symptoms. Dr. Verschuren was of the view that Esau had post-traumatic stress disorder from his encounter with the police; he referred him to a psychiatrist, Dr. Birdi. Subsequently, he received a consultative note from Dr. Birdi indicating his diagnosis was post-traumatic stress disorder. He saw Esau a couple more time for complaints related to the incident with the police.

Mike O’Connor

[48] Mike O’Connor (“O’Connor”) is a detective constable with the Toronto Police Service and in 2009 he was a member of the drug squad. On September 23, 2009, he received information from a confidential informant which caused him to swear the affidavit in support of the request for a search warrant. He was advised that there were 2 brothers living in the Mornelle Court apartment with their mother and that there were revolvers, ammunition and drugs in the residence. The informant was someone O’Connor had dealt with before and he was truthful and credible.

[49] An application was made for a search warrant at 10:43 on the evening of September 23. Officers were dispatched to do surveillance at the apartment building. The search warrant was obtained and authorized the officers to execute it at 80 Mornelle Court between 11:30 p.m. and 6:00 a.m.

[50] O’Connor notified his supervisor, Detective Irish, that the search warrant had been obtained and, along with some other members of the drug squad, O’Connor went to 80 Mornelle Court around 1:00 a.m. Because it was suspected there were firearms at the premises, the ETF would be the ones executing the warrant and securing the premises.

[51] O’Connor was in the alley when the door was breached and the ETF entered. He went upstairs and entered the apartment about 10 minutes later. He saw Esau in his bedroom with injuries to his face and he was being attended to by the paramedics. There were other civilians in the living room.

[52] O’Connor and Officer Reid searched Bass’s bedroom, which was the middle one in the hall. A locked safe was found in the closet and when it was opened, there was a loaded gun and ammunition in it. They found crack cocaine and an amount of cash in the bedroom as well. O’Connor informed the other officers they had found the gun and drugs and Bass was arrested. O’Connor left the apartment at 4:13. When he saw Esau, the facial injuries were not as severe as the ones documented in the photographs in exhibit 2.

David Irish

[53] David Irish (“Irish”) is currently retired, but in October 2009, he was a detective with the Drug Squad East. He had become a police officer in 1978. At the time, there were two drug squads and he was in charge of team 5 out of 43 Division.

[54] Around 6:30 p.m. on September 23, 2009, he was informed that an application was being made for a search warrant for apartment 211 at 80 Mornelle Court in Scarborough, as it was believed there were handguns on the premises owned by two brothers. Because handguns were involved, the ETF had to be contacted to execute the warrant, with the drug squad officers on the perimeter. Once the warrant had been executed, it was up to the drug squad officers to search the apartment.

[55] Irish was advised that the search warrant had been obtained and the ETF was notified and arrangements were made to meet at 43 Division. Irish drove to the police station to meet with the ETF; other officers were dispatched to the apartment building to undertake surveillance. Irish was in charge of the investigation.

[56] Irish left after the briefing and drove to Mornelle Court, arriving at approximately 2:00 a.m. He went into the stairwell between the first and second floors while the members of the ETF went up to the apartment on the second floor. Reading from his notes, Irish testified that the ETF opened the door of the apartment with a metal ram at 2:13 and threw in a distractionary device which made a loud “bang”. The ETF officers were shouting that they were the police and they had a search warrant. The drug squad officers remained outside of the apartment in the stairwell while it was being secured by the ETF.

[57] At 2:22 the ETF told Irish that the drug squad could enter the apartment. As Irish walked in, he saw a vase near the front door that had been broken. He saw people in the living room: 2 males, 3 females and a child. He explained that these people were “detained” while the apartment was being searched; they were not free to leave.

[58] Irish noted that Esau had a swollen right eye, a swollen lip, a cut over his left eye and swelling in the area of his right cheek. Irish did not ask Esau how he sustained the injuries. The paramedics who accompanied the police officers attended to Esau’s injuries. Irish asked Esau if he wanted to go to the hospital, but Esau declined. He inquired whether Esau wished to make a complaint, but he did not. Esau did not tell Irish he had been assaulted.

[59] A video was done of the apartment before the search started, in accordance with the usual practice. The drug squad officers then commenced their search. Irish went into the first bedroom in the hall and looked in the closet but found nothing. Officer O’Connor found a loaded handgun in a safe in a bedroom and Officer Reid found crack cocaine. Irish went to the living room and told the people sitting there that they were all under arrest because the weapons and drugs had been found on the premises. He advised them of their rights to call a lawyer but no-one wished to. He told them that they would have to accompany him to the police station.

[60] The search of the apartment was concluded shortly after 4:00 a.m. Irish went to the living room. Bass was sitting with the others and he indicated that the guns and drugs were his. As a result, Irish arrested Bass and he was taken to 43 Division. Everyone else in the apartment was released. As far as he was aware, no-one was permitted to leave the apartment until Bass confessed.

[61] Irish went to speak to Esau and he asked him again if he wished medical attention, which he declined. He spoke to Blossom about the damage to the apartment and he may have given her his card. An exit video was done and he left the premises at approximately 4:19 along with the other members of the drug squad.

[62] Irish went to the police station to process Bass and the criminal charges. At 5:30 he was paged by a nurse at Centenary Hospital. When Irish took the phone, he spoke to Esau who said he wanted photographs taken of his injuries. He did not say how he had sustained the injuries and he did not say that he had been assaulted by the police. Irish told one of the officers at the station to contact Esau to have photographs taken. He had no further involvement with the Plaintiff.

David Cavanagh

[63] David Cavanagh (“Cavanagh”) is currently a detective constable with the Intelligence Service; at the time of the incident giving rise to this lawsuit, he was a constable with the ETF. Cavanagh explained that officers must apply to become members of the ETF and it is a very competitive process. After he was accepted in 2007, he undertook the basic training, which included how to execute a search warrant. The members of the ETF team are taught to enter the premises quickly with a dynamic entry, secure the people inside and then turn the premises over to the team that will do the search.

[64] ETF officers wear different uniforms and carry different weapons than other police officers.

[65] Cavanagh explained that for a dynamic entry, surprise and speed of entry are important and people must be secured before they can form a plan to avoid and perhaps arm themselves with weapons. It was routine procedure for the ETF to be involved in the execution of a search warrant if firearms were suspected on the premises. The role of the ETF is to secure the premises; they do not do the search. Once the area has been secured, and the occupants held in place, it is turned over to other officers. Cavanagh estimated that he had been involved in perhaps 50 dynamic entries before the night of this incident.

[66] During training, the ETF officers are taught to announce themselves loudly and clearly before ramming the door and to continue to say “Police, search warrant, everybody get down” so there can be no mistake about what is going on. According to Cavanagh, the ETF officers demand that the occupants of a premises show their hands and if someone does not comply or resists attempts they are told to put their hands behind their back. Cavanagh explained that the ETF works as a team and it is important to know what the other team members are doing.

[67] While at training for the ETF, Cavanagh was taught about the Provincial Use of Force Model which was marked as an exhibit. The policy of the police is to use the least amount of force that is necessary to secure the person. Recognizing that different officers might respond differently to the same situation, the model is intended to provide guidance to the police as to the amount of force that is necessary in a particular situation. Any use of force by an officer must be justified.

[68] In September 2009, Cavanagh worked regularly with Special Weapons Team 2 which was led by Officer Urbaniak. Cavanagh has an independent recollection of September 24, 2009.

[69] Cavanagh and the other members of the ETF were called to attend at 43 Division in Scarborough to execute a search warrant. They were told that it was believed that there were several firearms and ammunition at 80 Mornelle Court in apartment 211, with the target males being two brothers, Bass and Esau Wynter. At the briefing session, the officers were given a floor plan of the apartment and photographs of the brothers.

[70] The ETF team were dressed in full tactical gear which included a heavy armor bullet proof vest, helmet, boots and protective gloves. They had a rifle or a submachine gun, also known as “long guns”, attached to the front of their vests. On that night, Cavanagh had an MP5 attached by a Y sling to his vest so it hung vertically muzzle down, with the butt of the gun several inches from his chin.

[71] The plan was for a dynamic entry: the door would be breached with a ram, and then a distractionary device deployed in the front entranceway. The ETF would secure all of the occupants in the apartment and then turn the premises over to the members of the drug squad. Cavanagh, along with Officer Contant, was assigned to Esau’s bedroom.

[72] The ETF officers lined up single file outside the apartment. The door was rammed and Officer Karagan shouted out that they were the police, they had a search warrant and everyone was to get down. Officer Eichenberg threw in the distractionary device which went off with a loud sound. As he entered the apartment, Cavanagh heard the sound of glass breaking but he did not know what it was. Cavanagh went down the hall to the bedroom he was assigned, yelling that it was a police search and everyone was to get down.

[73] The door to the bedroom was closed so he opened it and turned on the lights. He saw Esau on the bed on his back, awake. He thinks he was on top of the sheets, perhaps in a semi-upright position. Tracy was awake beside him.

[74] Cavanagh could not see Esau’s hands and he was concerned because he was believed to be in possession of a firearm. He shouted at Esau as loudly as he could, “Everybody get down. Show me your hands.” He pointed his long gun at Esau as he moved towards him. Esau was looking right at him, but he did nothing and did not show his hands. Cavanagh was concerned he had access to a firearm and perhaps it was under the covers on the bed. Tracy was on the left side of the bed, in a crouched position, facing towards the end of the bed.

[75] Cavanagh grabbed Esau by the right wrist. He denied that he struck Esau while he was on the bed. He denied that he hit him in the face with the butt end of his rifle. To do so would have been dangerous and not in accordance with his training as an ETF officer. In addition, the butt end of the gun is flimsy, made of a rubber type of material, like the end of a telescopic umbrella. He never unholstered his pistol as there was no reason to do so. Cavanagh testified that officers are not trained to hit someone with the butt of a gun as the chance of an accidental discharge is very high. Had he wished to use something to hit Esau with, he had a baton on him.

[76] Cavanagh wanted to get Esau face down on the floor in order to limit his access to a gun, if there was one in the bed or nearby. His long gun was hanging on its sling; Cavanagh reached over to grab Esau’s wrist and he pulled away. Cavanagh grabbed him and Esau was resisting but he was pulled off the bed and landed on the floor near the dresser. Esau landed face down on the floor and he pulled his right hand free. Cavanagh heard something breaking and he saw shards of glass on the floor. Esau was on his stomach, squirming around and Cavanagh wanted to handcuff him as quickly as possible. He kept yelling at Esau to put his hands behind his back and to stop resisting.

[77] Cavanagh did not know if there was a gun in the bedroom or what the female was doing or if there was someone hiding in the closet. Esau continued to resist being handcuffed, his left hand was moving around on the floor. Cavanagh hoped that another officer would come into the bedroom to assist. Esau was moving around and his hands were going towards the dresser and he was concerned that he was going to arm himself.

[78] Cavanagh remained crouched over Esau with his knee on his back, trying to handcuff him. He opened his right hand and struck him in the face as hard as he could with the heel of his hand five times; he hoped that Esau would put his hands to his face and he would be able to handcuff him. Esau was moving from one side to another. Open hand hits are part of the training for all police officers when the person is resisting arrest; this action is referred to in the Use of Force Model. He continued to tell him to stop resisting. Cavanagh specifically denied he ever kicked Esau or stepped on him.

[79] At some point, Officer Contant came into the bedroom while Cavanagh was struggling with Esau on the floor. Cavanagh never saw Contant hit the Plaintiff or kick him; he thinks Contant had a pistol and not a long gun because Contant was one of the officers who breached the door. Cavanagh denied that Contant entered the room first and kicked over the glass vase as he did so.

[80] After being struck by Cavanagh, Esau put his hands to his face and Cavanagh was able to handcuff his hands behind his back. He estimated from the time he grabbed Esau on the bed until he was able to handcuff him, perhaps 30 seconds had elapsed. He did not know what happened to Tracy but she would not have been allowed to leave the bedroom on her own. No-one is allowed to walk around the premises when a search warrant is being executed.

[81] After being handcuffed, Esau was put up on the bed. Cavanagh saw the cut about his left eye and some swelling so he called in the paramedics and they put a bandage over his eye. Cavanagh did not recall blood on the pillow. Cavanagh said he did not know if the cut on his face was from being struck or from a shard of glass from the broken vase. Custody of Esau was then turned over to the drug squad.

[82] He left the apartment with the other ETF officers at 2:26. He submitted a use of force report on September 24, 2009, which was marked as an exhibit at the trial. He was not criticized by Urbaniak for how he dealt with the situation with Esau.

[83] Cavanagh was asked about the practice if a person was groggy or asleep and not responding to commands to show their hands. He denied it would be appropriate to wake them up with a blow to the head. He has never encountered the situation where a person failed to wake up when a dynamic entry had been undertaken.

[84] Counsel for the Plaintiff suggested to Cavanagh that Contant entered the room first and hit Esau with his pistol and Cavanagh was providing an alibi; this was denied by Cavanagh who deemed this suggestion “absurd and dangerous”. Cavanagh also noted that Contant was one of the officers who breached the door and therefore he entered the apartment at the back of the line behind the other officers.

Jason Contant

[85] Contant had been a member of the ETF since January 2009 and had taken the 5 week training course. He confirmed that if a search warrant is being executed with a suspicion of a firearm on the premises, there is a heightened fear and the officers assume that all of the occupants might be armed. Often, a dynamic entry is used in these circumstances to enable the entry to be done as quickly as possible and to prevent the destruction of evidence.

[86] Contant explained that the use of force depends on the actions of the subject. If someone is resistant, the officer might have to use hard techniques as set out in the Use of Force Model, such as punching, or the use of the baton or Taser. The goal of the ETF is to take physical control of the occupants in a premises and this includes handcuffing them.

[87] On the evening of September 24, Contant was one of the officers assigned to breach the door to the apartment. He was wearing his ETF uniform; he did not have a long gun, only his pistol, because he was one of the officers breaching the door with a ram. Contant was told that it was suspected there were 2 firearms in the apartment owned by the brothers.

[88] The door to the apartment was breached at 2:13 and Eichenberg threw in the distractionary device. Contant and Smith went to the back of the lineup of officers entering the apartment. Contant thought he entered as the 4th officer in line, right behind Cavanagh. He and Cavanagh were assigned the last bedroom down the hall, according to the floor plan they had.

[89] He saw Cavanagh enter the bedroom and Contant followed him in, perhaps a foot behind. Cavanagh turned on the light. It was a small room and very cluttered. Contant testified there were 2 people on the bed and both of them were awake. However, in his notes made the evening of the accident, Contant noted “P/C Cavanagh activates room lights—observed T2 sleeping in bed covers are over him.” Contant focused on the female on the left side and Cavanagh dealt with the male.

[90] Cavanagh was yelling to get down on the ground; the female seemed scared. Contant was holding his pistol in his left hand. He walked to the foot of the bed, telling her to get off the bed and she did so immediately, wedging herself between the side of the bed and the wall, amidst the clutter. He told her to put her hands on the bed and he put handcuffs on her. Contant had to go to the space between the left side of the bed and the wall to put the handcuffs on her. Cavanagh was to his right and he was yelling at the male to show his hands.

[91] He did not see Cavanagh hit Esau while he was on the bed. The long gun Cavanagh was carrying has a weak, rubbery base so it would not be used to strike someone; that would be prohibited in any situation, according to Contant. Similarly, an officer would never hit a person with a pistol because the magazine might get dislodged; that would be a dangerous maneuver which would never be justified.

[92] Contant saw Cavanagh take the male to the floor; he heard the sound of glass breaking but he did not know what had broken. Cavanagh was struggling with the male on the ground, he was rolling around. Cavanagh was telling him to stop resisting and to show his hands. He went over to assist, standing near Esau’s head.

[93] He put his pistol in its holster and knelt beside Esau and told him to stop resisting. Esau was not listening and he was not giving up his hands. One of his hands was moving under the dresser. Contant placed his right hand between Esau’s shoulder and head to control his movements. He used his left hand to strike his right rib area once. He hoped to make him gasp and that would “take the fight out of him”. This was in accordance with his training and it worked. Contant denied that he kicked him, stomped on him or struck him with his knee. He never saw Cavanagh do any of these things and specifically, he never saw Cavanagh strike the Plaintiff.

[94] After striking the Plaintiff, he was able to get his hands behind his back and put the handcuffs on. He then escorted the female to the doorway, as she was not allowed to leave the bedroom by herself. Eichenberg took her to the living room and Contant returned to the bedroom. He checked the closet in the room.

[95] After the occupants had been secured, the medics came in to assess Esau’s facial cuts. Contant saw the cut on Esau’s face. He wrote in his notebook that the Plaintiff’s cuts were “minor” and it was not necessary to take him to the hospital. The premises were turned over to the drug squad and the ETF officers left at 2:26.

Thomas Urbaniak

[96] In 2009, Urbaniak was a sergeant with the ETF in charge of the gun team which consisted of 10 officers. He was responsible for ensuring that the search warrant was valid and he was the central note taker. Officers on the ETF must take use of force training annually. They are taught how to assess the situation at hand, come up with a plan and act on it and the Use of Force Model is taught during training.

[97] Officers are not taught to strike a person with the butt of a machine gun or the handle of a pistol as these are not safe actions. It is the job of the ETF to ensure the premises are secure and then to turn over the area to the investigating officers. The ETF members are taught to assume the occupants of premises have access to the firearms that are suspected to be there.

[98] On the evening of September 23, Urbaniak was contacted and told a search warrant needed to be executed. He attended along with the officer from the ETF at 43 Division to devise a plan of attack. He was advised that there were 2 suspects who were believed to have 2 handguns and ammunition on the premises. They were given a sketch of a floor plan of the apartment.

[99] Urbaniak testified that he made the final decisions about how the warrant was to be executed that night. He decided that a dynamic entry would be used with a distractionary device because they wanted the element of surprise and it was a safer way of proceeding. The door was breached and the device was thrown in the front entranceway.

[100] Urbaniak was the last officer to enter the apartment. He saw a woman sleeping on a mattress with a young child and another older woman; there was a lot of smoke in the apartment so Urbaniak took them out and into the stairwell where he turned them over to members of the drug squad.

[101] Urbaniak returned to the apartment. A young woman was brought out into the living room by Eichenberg. He went into the middle bedroom and saw Karagan in there with Bass in handcuffs. Urbaniak went to the bedroom at the end of the hall and he saw 2 paramedics treating Esau for his injures; he was in handcuffs. Urbaniak notified the drug squad that all of the people in the apartment were in custody and he turned it over to them. He went and spoke to the 2 women he had escorted from the apartment. He left the apartment and had the usual debriefing session. There was no discussion about any use of force and no criticism of the conduct of Cavanagh.

[102] When Urbaniak was shown the photos of Esau marked as exhibits, he testified that Esau did not have the facial swelling that is depicted in the pictures when Urbaniak left the apartment that night.

Jim Eichenberg

[103] Eichenberg was a member of the ETF in 2009 and on the evening of September 24 he was in charge of the group; he was to do the deployment of the distractionary device. The goal was to enter the premises quickly and secure the occupants. He threw the device to his right and it deployed. He entered the apartment yelling that it was a search warrant and people were to get down.

[104] He followed Karagan to the second bedroom. There was a man on the bed and Karagan took him to the ground; he was not resisting. Eichenberg checked the closet and under the bed. Since Karagan had secured the male by handcuffing him, Eichenberg left the room and stuck his head into Esau’s room. Everything seemed fine. He was asked to take the female to the living room so he escorted her down the hall. He remained in the living room until the drug squad took over the investigation.

Positions of the Parties

Plaintiff

[105] The Plaintiff asserts that excessive force was used during the execution of the search warrant and it was not necessary in the circumstances. The Plaintiff submits that the evidence of Cavanagh, Contant, Irish and Eichenberg is not credible and the court ought not to accept it. They submit that Eichenberg failed to take steps to stop the use of excessive force by Contant and Cavanagh. Finally, they argue that the drug squad failed to ensure that there was a proper record made of the apartment prior to the search being undertaken.

[106] Counsel for the Plaintiff submits that Esau has suffered physical and emotional damage as a result of the assault and that he should be awarded non-pecuniary damages in the range of $75,000-$100,000. He ought to be awarded aggravated and punitive damages based on the conduct of the Defendants. Finally, Esau should be awarded special damages of $3,231 to cover the cost of treatment from a psychologist and to repair his teeth.

Defendants

[107] The solicitor for the Defendants submits that the evidence proffered by the Plaintiff and by Tracy is unreliable and not capable of belief. It is argued that Esau was not a credible witness but rather, he tailored his evidence in an effort to strengthen his case. Counsel submits that the Defendant Officers Cavanagh and Contant were impressive witnesses whose evidence ought to be accepted by the court. Esau was not complying with the commands to show his hands and thus the officers were justified in administering distractionary blows to enable them to handcuff Esau. The force used was completely justified in the circumstances.

[108] On the issue of damages, counsel submits that Esau’s injuries were very minor and would assess in the $5,000-$10,000 range.

Analysis

Liability – The Law

[109] Police officers, at times, are required to use force to effect an arrest, take a person into custody or secure premises. That right is, however, limited. As the Supreme Court of Canada has stated in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 32:

[P]olice officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.

[110] Section 25 of the Criminal Code sets out the constraints on the use of force by officers in the course of their duties. It states that in enforcing the law, an officer is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[111] In R. v. Nasogaluak, at paras. 34 and 35, the court went on to explain:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis…

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

[112] Salmers J. summarized the law nicely in Wilsdon v. Durham Regional Police, 2011 ONSC 3419, at paras. 68 and 69:

Section 25(1) of the Criminal Code protects a police officer from criminal and civil liability. To engage the protection of this section, a police officer must prove each of three elements on a balance of probabilities. The three elements that an officer must prove on a balance of probabilities are that he or she: (i) was required or authorized by law to perform the action, that the officer undertook, in the administration or enforcement of the law; (ii) acted on reasonable grounds in performing the action; and (iii) did not use unnecessary force.

Even if unnecessary force is found to have been employed, in order to succeed on his action, the plaintiff must prove on a balance of probabilities that a police officer used excessive force that caused injury to the plaintiff. [Footnotes omitted.]

[113] The law requires that the officer’s use of force must be considered in light of the circumstances at hand at the time, not through the benefit of hindsight. The onus is on the officer to show that the force used was not excessive. See Chartier v. Greaves, [2001] O.T.C. 121 (S.C.).

[114] The law does not obligate the officer to use the least amount of force required to accomplish the task; rather, the officer is to use no more force than necessary having regard to his or her assessment of the situation at hand: Levesque v. Zanibbi, [1992] O.J. No. 512 (Gen. Div.), at para. 17.

[115] The issue of whether the force used was excessive is a question of fact which must be determined on the evidence in the particular case.

The Evidence

[116] There is no dispute that the search warrant that was secured was proper and the Defendant officers were at the Mornelle Court premises to execute the warrant. The officers had all been trained on the use of force and were familiar with the Use of Force Model (Exhibit 16) that was in use at the time. I accept that the execution of the search warrant was for suspected firearms in the apartment and as a result, the officers had to be vigilant to ensure that the occupants of the apartment were secured as quickly as possible.

[117] As B.P. O’Marra J. wrote in R. v. Hernandez-Rodriguez, 2016 ONSC 1700, at para. 9:

They were authorized to execute a search warrant by dynamic entry. Where such entries are authorized, the aim is for an abrupt entry and the swift and secure control of any occupants inside. Ideally, nobody will get hurt in this process. For good reason, such entries usually are executed in the early morning hours so that the occupants will be unaware and unprepared for the police entry. For a citizen who happens to be inside the target dwelling, the experience can fairly be described as “shock and awe”.

[118] The officers have the onus of proving on a balance of probabilities that they satisfy the third branch of the test as articulated in Wilsdon v. Durham: that in securing the premises and the occupants of the apartment, they did not use unnecessary force.

[119] In this case, the versions given of what transpired in Esau’s room in the early morning hours of September 24, 2009 are quite different; and there are certain inconsistencies in the evidence of all of the individuals who were in the bedroom at the time Esau sustained injuries.

[120] The solicitor for the Defendants submits that the evidence of Cavanagh, Contant, Irish and Eichenberg is not credible and the court ought not to accept it. While I acknowledge there were discrepancies in his evidence on some points, in my view, they were not significant and, overall, I found Esau to be a credible witness. He was not articulate, at times he had difficulty finding words to describe what happened or to answer questions that were put to him. I attribute that to his limited verbal abilities or perhaps lack of formal education. Some of the discrepancies in his recollection can be explained by the fact that he was roused from his sleep, the speed at which events unfolded and the circumstances in which he found himself.

[121] Without a doubt, the events in the early morning hours of September 24, 2009 occurred very quickly. Cavanagh estimated that between the time he and Contant entered the bedroom and the time Esau was handcuffed was perhaps 30 seconds.

[122] The evidence is contradictory on certain critical points: was Esau asleep or awake when the officers entered his bedroom? Did Contant or Cavanagh hit Esau in the face while he was on the bed? Did Esau fail to obey the commands of Cavanagh to show his hands and instead, actively resist arrest? If so, was the amount of force used appropriate in the circumstances?

[123] For Cavanagh and Contant, executing a search warrant with a dynamic entry was part of their job. They were members of an elite team, specially trained on how to execute search warrants in dangerous situations. Cavanagh estimated he had done 50 dynamic entries prior to September 2009. They were trained to make notes at the time to record what happened. Notwithstanding this, there are inconsistencies in the evidence of Cavanagh and Contant, which in my view are significant.

[124] Cavanagh testified that after opening the bedroom door, he turned the lights on and he saw both Esau and Tracy awake on the bed. He identified himself as a police officer and demanded they show their hands. Contant, who followed Cavanagh into the bedroom, wrote in his notebook that when he entered the bedroom, Esau was asleep. At trial, Contant testified that both Esau and Tracy were awake when he entered the room. He attempted to explain this contradiction by suggesting that he simply meant that both of the occupants were in bed. I do not accept this explanation as it makes no sense. Rather, I find it was an attempt by Contant to tailor his evidence to match that of Cavanagh.

[125] All of the witnesses testified that Esau was a very heavy sleeper, someone who was difficult to rouse from sleep. He was asleep, down the hall, with his bedroom door closed when the ETF forced entry into the apartment. Although the breaching of the door and the use of the distractionary device was loud, it is notable that Officer Urbaniak testified that after entering the apartment, the toddler who was sleeping in the living room with Blossom remained asleep, even though she was on the couch right inside the door that was breached.

[126] I do not accept the submission of counsel for the officers that it was impossible that Esau was asleep when the officers entered the bedroom because of the loud noise from the distractionary device. I prefer the evidence of Tracy, which is confirmed in Contant’s notes, over that of Cavanagh and find that Esau was sleeping at the time the officers entered the bedroom.

[127] A major point of contention is whether Cavanagh or Contant struck Esau in the face while he was on the bed. Esau stated that an officer hit him in the face while he was still on the bed; this was confirmed by Tracy. Esau testified that he did not know exactly what he was hit with, but he thought it was a gun. Tracy was certain he was hit with the butt of a handgun. Officers Cavanagh and Contant denied this and testified that the only blows that were administered were done while Esau was on the floor, struggling and resisting.

[128] Counsel for the Defendants describes Tracy as “an impressive witness who told an impossible story” and submits that her evidence ought to be rejected entirely. I do not agree. I was impressed with Tracy as a witness. I found her to answer questions directly, she did not attempt to overstate her evidence, nor did she try to assist the Plaintiff. She acknowledged that she had to institute legal proceedings in family court to get support for her 2 children from the Plaintiff.

[129] As Tracy indicated at trial, she was shocked by the events of September 24, 2009; she was afraid because she was pregnant and she was hysterical. Everything happened quickly; it is no surprise that Tracy may be mistaken or incorrect on some points. However, she was clear in her evidence that Esau was struck in the face while he was on the bed and then hit and kicked while he was on the floor. She was firm in her evidence that he did not resist arrest.

[130] Cavanagh admits to striking Esau in the face 5 times with an open hand, which was in accordance with the Use of Force Model in circumstances where a person is resisting. Contant said that he struck Esau once in the ribs with his hand. The officers testified that Esau refused to obey their requests to show his hands while he was on the bed and that once they had him face down on the floor, his right hand was moving towards a dresser; they did not know for what purpose. While Cavanagh testified that Esau’s hand was almost underneath the dresser, which caused him concern, Contant stated that his hand was never close enough to the dresser to go under it.

[131] Esau testified that while he was on the bedroom floor, there were multiple blows to his face and he was kicked and stomped on in the area of his torso by the officers. He said he was trying to protect himself with his hands, that he was not resisting the officers.

[132] All of the witnesses agreed the bedroom was small and cluttered. Contant testified Tracy was immediately compliant and he saw Cavanagh struggling with Esau on the floor so he went over to assist. He was at the Plaintiff’s head and Cavanagh was at his feet.

[133] Contant testified that he put his right hand between his shoulder and head and hit him in the right rib area with his left hand; he noted this in his notebook. According to Cavanagh, at the same time, he had a knee on Esau’s back and had to deliver 5 blows to the face in an effort to gain control over him.

[134] Contant testified that he never saw Cavanagh hit the Plaintiff and he made no notation of it in his notebook. Similarly, Cavanagh said he never saw Contant strike the Plaintiff. This, despite the fact they were beside each other trying to subdue Esau. It is impossible to believe that Contant would not have observed Cavanagh striking the Plaintiff numerous times in the face and would not have made a notation in his notebook. Similarly, I do not accept Cavanagh’s evidence that he did not know what Contant was doing while he was assisting him. In my view, these are significant omissions in the evidence of the officers on important points, which affects their credibility.

[135] Both officers deny that Esau was struck while he was on his bed. The pillow Esau was sleeping on at the time of these events was entered into evidence as exhibit 4. The evidence was uncontradicted that the pillow was unsoiled prior to the events of September 24. There are bloodstains, not just drops of blood, on the pillow; there are several other stains of blood around the edge of the pillow. Counsel for the Defendants submits that the pillow is a “red herring” and is of no evidentiary value and suggests that the bloodstains on the pillow could have occurred while he was being attended to by the paramedics. I disagree. The evidence was clear that after Esau was handcuffed, he was sitting on the bed and the paramedics came in quickly and attended to him while he was sitting on the bed. There was no evidence that Esau was lying on the pillow or using it in any fashion while the paramedics were putting the bandage on his wound. There was no evidence that the pillow was on the floor while the officers were trying to gain control over him. The bloodstains must have occurred from blood that was flowing from the cut on Esau’s face while he was on the bed.

[136] The amount of blood and the location of the stains on the pillow are consistent with a finding that the cut above Esau’s left eye occurred when he was in bed, before he was taken to the floor by Cavanagh. This is contrary to the evidence of Cavanagh but consistent with the evidence of the Plaintiff and of Tracy that he was struck as he was lying in bed, just waking up.

[137] Esau testified that after he was struck, there was blood flowing down into his eye while he was on the bed. The amount of blood on the pillow is consistent with Esau’s evidence.

[138] The officers both testified that no blows were inflicted on Esau while he was on the bed. I do not accept this evidence as accurate.

[139] Perhaps it was occasioned by a blow from an open hand. It is more consistent with some type of blunt trauma, of sufficient force to open the skin. Esau was not certain what he was struck with; he thought it was the end of a gun, that was his “guess”.

[140] The officers bear the onus of demonstrating that the use of force was appropriate. Cavanagh and Contant assert that Esau was non-compliant with their requests to show his hands. The Plaintiff denies this and testified that he was stunned when they entered the bedroom and hit him; he thought the apartment was being robbed. It makes no sense that Esau would not comply with the officers’ commands that night. His pregnant girlfriend was beside him on the bed and he had nothing to hide. The firearm that was eventually located in the apartment belonged to his brother.

[141] In September 2009, Esau had no involvement with the criminal justice system. Any interaction with the criminal justice system was a number of years prior, when he was in high school. At the time of these events, Esau was enrolled in school, in a relationship of more than a year with a woman he planned to marry and they were expecting a child together.

[142] By all accounts, Esau was a good-natured, easy-going young man. Perhaps Esau was groggy as he woke up and he did not respond immediately to the shouts to show his hands. This does not equate with “resisting arrest”.

[143] As I mentioned earlier in these reasons, the circumstances under which the force was used are relevant. I accept that the search warrant was executed with the expectation that 2 firearms were in the apartment. The ETF officers were briefed and were given the names of the Plaintiff and his brother. There was no evidence that either of them was known to be violent or had been convicted of any crime associated with violence.

[144] Cavanagh contends that after taking Esau to the floor, face down, he was moving around and one of his hands was reaching towards a dresser. Cavanagh was there and Contant was at his head, pinning his neck and shoulders. Tracy described him like a “starfish”. Cavanagh testified he did not know what the Plaintiff was doing with his right hand or what he was potentially reaching for. It was while Esau was in this position that the distractionary blows were delivered by Cavanagh and Contant.

[145] I do not find that Esau’s actions constitute resisting arrest. He had been struck once for reasons he did not understand. He was thrown to the floor and it was while he was in that position that he was struck by the officers. I find that as opposed to refusing to yield his hands, he was trying to protect himself from further blows to the head.

[146] Section 25(1) authorizes officers to use as much force as is necessary for the purpose of doing what they are authorized to do by law. Cavanagh and Contant had to secure the premises pursuant to the search warrant, and that included securing the persons who were there. On the facts of this case, the amount of force used by Cavanagh and/or Contant was not justified in the circumstances; it was not necessary to strike the Plaintiff in the manner that they did in order to secure him. I say this understanding the circumstances the ETF officers were presented with on September 24, 2009. It is not the function of the court to second guess the actions of the officers in the situation they were faced with; however, the court must assess, on the evidence, whether the force that was used was necessary in all of the circumstances for them to carry out the tasks which they were assigned.

[147] Counsel for the Defendants points to the inconsistencies in the evidence of Esau and submits that he ought not to be believed. There are inconsistencies in Esau’s evidence which may be attributed to a variety of causes: the nature of what happened on September 24, 2009; exaggeration in an attempt to bolster his case; failure of memory; or lack of intellectual ability.

[148] The defence makes a great deal about these inconsistencies and asks the court to find, essentially, that the Plaintiff’s evidence is not worthy of belief. I do not accept this submission.

[149] In my view, nothing turns on the fact that Esau did not state to Irish or to others on the evening in question that he had been assaulted. Without a doubt, the events were frightening to Esau and it is not surprising that his recollection of certain details is imperfect. The recollections of some of the police officers, who are trained to make notes of what transpired, are imperfect.

[150] Some of the other evidence that was filed assists in resolving some of the differences in the testimony. The hospital records indicate that Esau had facial swelling, a cut above his left eye brow, a swollen lip and abrasions about his left shoulder.

[151] In my view, it is not necessary for me to determine by what means the cut on Esau’s face was inflicted. There was a blow administered by one of the officers to Esau’s face while he was in bed of sufficient force to split his skin open, and result in a bloody wound that required stiches. I have found that he was asleep when the officers burst into his bedroom; he may have been groggy and not immediately responsive to their demands to show his hands. That response does not mandate an immediate blow to the head; that was not justified in the circumstances.

[152] The photographs taken a few hours after the encounter and marked as exhibit 2, show a bloodshot right eye, severe swelling on the right side of the face, the stitched cut above the left eye, and very swollen lips.

[153] The photographs taken later that morning show 2 black eyes, with blood in the white parts of the eyes, extensive facial swelling such that his face is contorted, a bruise on his back, bruising around the right cheekbone and a couple of chipped teeth.

[154] Whether the amount of force used was excessive in the circumstances is a fact driven determination. I appreciate the officers had a search warrant to execute and it was suspected there were firearms on the premises. I accept that they were concerned about their safety and what they would find in the apartment. They had to use their judgment in terms of securing the people in the apartment. However, the facts of this case can be distinguished from R. v. Eyo, 2012 ONSC 3634, relied on by the Defendants. In that case, the search warrant was being executed at an apartment where the occupant had a criminal record for homicide and was known to be violent and in possession of firearms. Further, once the door had been breached, the occupant hid in a bedroom with a locked door. When he was found, he actively resisted, kicking the officers, and it required several officers to get him under control. That is a very different factual matrix than what existed at the Mornelle Court apartment on September 24, 2009.

[155] There were two officers who had Esau pinned to the ground, face down. They had grabbed him from the bed and thrown him to the floor. He had been struck in the face while he was in his bed. I do not find it was necessary to strike him five times in the face, and once in the back, on the officers’ own evidence, in order to secure him. On the evidence of Esau and Tracy, there were additional blows.

[156] I find that the amount of force that was used on Esau was not proportional or reasonable or necessary in the circumstances; it was excessive.

Damages

[157] The Plaintiff has established that there was an application of force to him by the officers and that he was injured as a result. Counsel for the Plaintiff suggests general damages for pain and suffering and loss of amenities of life should be assessed in the $75,000-$100,000 range. In addition, punitive and aggravated damages are sought in an unspecified sum. Special damages for psychological treatment and for the repair of the damage done to Esau’s tooth are sought in the sum of $3,231.

[158] The solicitor for the Defendants argues that any injuries can be described as “very minor” and a proper assessment would be in the sum of $5,000-$10.000.

[159] Esau suffered some physical injuries as described in the hospital records and depicted in the photographs. He did not sustain any fractures, was not left with serious scarring and it is fair to describe his injuries as soft tissue. He recovered from those injuries fairly quickly, as one would expect. Nevertheless, I would not describe the injuries as “very minor” or insignificant.

[160] The most serious injury from the night of September 24 is clearly the emotional sequelae emanating from his treatment at the hands of the police. While I acknowledge Esau did not seek out treatment for his emotional issues that does not mean they were trivial, as suggested by counsel for the Defendants.

[161] Tracy described the changes in Esau following the incident; his mother and Angela also noted he was a different person afterwards. He used to be easy-going and open; following the incident, he was withdrawn, angry and difficult.

[162] Here, I found the evidence of Dr. Verschuren to be compelling. Dr. Verschuren has been the family doctor of Esau since he was a young boy; he attended court not because he was retained by the Plaintiff but rather because he was subpoenaed and required to testify about his involvement with Esau following the altercation of September 24, 2009. I found Dr. Verschuren to be a candid witness, honest and credible. He was called as a damages witness, but because of his knowledge of Esau prior to these events his evidence in this regard is important.

[163] He stated that Esau was a “normal kid” before this incident without any drug or alcohol issues. Dr. Verschuren documented the various areas of injury as well as the complaints, which are consistent with being struck in the head with considerable force: tinnitus; vision difficulties; inability to concentrate. He sent Esau to a number of specialists to investigate these complaints. He noted Esau had 2 chipped teeth after the assault, which he could not afford to have repaired.

[164] Six months after the incident, Esau complained of nightmares, inability to sleep without the lights on and door open, and problems concentrating. He was angry and using alcohol and narcotics to alleviate his symptoms. Dr. Verschuren diagnosed Esau with post-traumatic stress disorder, and referred him to a psychiatrist who agreed with the diagnosis. While Esau did not follow up with the psychiatrist for treatment, I accept that he, as a young man, was reluctant to accept that he had psychiatric issues. He preferred to self-medicate.

[165] Dr. Birdi noted in June 2010 that Esau continued to experience flashbacks of the assault and was anxious. Dr. Ilacqua testified that he believed his sessions with Esau were helpful and that he ought to finish the program.

[166] What is clear is that as a result of the assault by the police officers, Esau’s path took an unexpected turn and it appears that he has not yet gotten back on that path. He did not finish his semester at Centennial and dropped out of the program. The evidence concerning what he has done since ceasing to attend school was less than satisfactory. It appears that he does not have stable employment, but rather works occasionally at odd jobs. I accept the evidence of Tracy and Blossom that Esau became a different person after the assault. Dr. Verschuren felt his symptoms were severe enough to refer Esau to a psychiatrist for treatment. Dr. Ilacqua testified that Esau continues to experience psychological difficulties at the present time, and he is motivated to improve.

[167] I find that while the events of September 2009 may have led Esau to drop out of the program at Centennial College, his emotional difficulties are not of sufficient severity that they precluded him from returning to school, if he was so inclined. Rather, I find that the incident with the police resulted in an alteration of the path that Esau was following at the time. I see no reason why Esau is unable to return to school at the present time if he so chooses, and finish the studies that he was enrolled in at the time of these events.

[168] Esau is a young man; with proper treatment, the evidence suggests he can deal with the emotional sequelae from this incident and move forward with his life. He is a father now and has the support of Tracy, both of which are factors that should motivate Esau to deal with his psychological injuries from the events of September 2009.

[169] I assess the general damages for pain and suffering, including any loss of competitive advantage, in the sum of $50,000, an amount I consider to be fair and reasonable in light of the evidence.

[170] Esau did not avail himself of treatment in the period of time that Dr. Verschuren recommended he do so. I accept the evidence of Dr. Ilacqua that it is reasonable for Esau to finish his program with him. That treatment and other necessary treatment from a psychologist or counsellor is not covered by OHIP. The treatment with Dr. Ilacqua in the sum of $1,575 is reasonable and ought to be undertaken. Similarly, Esau should proceed to have the damage to his teeth repaired at a cost of $1,656. The sum of $3,231 is awarded to Esau for these items.

[171] Punitive and aggravated damages are not routinely awarded and are reserved for cases where the conduct is high-handed, malicious or reprehensible: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595. I have found that the amount of force used by Cavanagh and Contant in securing Esau was excessive. I do not find the behaviour reaches the threshold necessary for an award of punitive or aggravated damages and I decline to award such damages.

Conclusion

[172] The Plaintiff shall have judgment in the sum of $50,000 for damages plus the appropriate interest. A further sum of $3,231 shall be awarded for the special damages.

[173] If the parties cannot agree on costs, I may be contacted.

D.A. Wilson J.

Released: May 24, 2018

COURT FILE NO.: CV-10-406201

DATE: 20180524

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Esau Max Wynter Jr.

Plaintiff

– and –

Toronto Police Services Board

Defendants

REASONS FOR JUDGMENT

D. A. Wilson

Released: May 24, 2018