COURT FILE NO.: CV-14-512354 DATE: 20180712

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KEN STREET Plaintiff – and – TORONTO POLICE SERVICES BOARD, CONSTABLE MATTHEW ELLIS and CONSTABLE DAVID PURVIS Defendants

Ken Street, Self-Represented D. Smith and J. Hunter, for the Defendants

HEARD: June 4, 5, 6, 7, 11, 12, 14, 2018

V.R. CHIAPPETTA j.

Overview

[1] Ken Street (the plaintiff) caused this action to be commenced by statement of claim dated October 3, 2011. He seeks “general, special, punitive, exemplary damages and damages for breach of the Canadian Charter of Rights and Freedoms caused by the defendants…in the amount of $500,000.00.”

[2] At issue in the claim are the events that occurred between the parties on June 10, 2010 at the plaintiff’s residence, 910 Queens Plate Drive in Toronto (“the co-op”). As a result of those events, the plaintiff claims against the defendants alleging that they failed to properly investigate the allegations made against him by the co-op manager and that they were negligent. He further alleges that the actions of the defendants “were a breach of his Charter rights pursuant to the Canadian Charter of Rights and Freedoms, being the rights of life, liberty and security of the person and the freedom of unlawful detention.”

[3] For reasons set out below, I have concluded that the plaintiff’s claim is properly dismissed in its entirety. The evidentiary record before the court fails to demonstrate the liability of the defendants as claimed.

Analysis

The incident of June 10, 2010

[4] At issue in this case are the events that occurred between the plaintiff and the defendant Constables on June 10, 2010 at the co-op. The plaintiff’s evidence differs from that of the defendant Constables in significant ways.

The plaintiff

[5] The plaintiff was born in 1958. Unless otherwise stated, the following represents the testimony of the plaintiff.

[6] In 1993, the plaintiff was left partially paralyzed following a cervical injury he sustained in a horseback riding accident. His physical health has been slowly progressing since that time. Today he walks without the use of aids, although he does not yet feel as if he is at 100 percent. The plaintiff advised the court that he required accommodation during the trial in the form of frequent breaks as a result of what he described as his disability as a result of the 1993 incident. Although no medical evidence was put before the court to substantiate this statement, I granted the plaintiff the accommodation as requested, giving him frequent breaks during the trial, rising early for the day and providing the plaintiff with generous time to prepare his cross-examinations and closing submissions.

[7] The plaintiff moved into the co-op in 1993. The residence is suited for his disability. It was not until 2008 that he felt well enough to become involved with the board of the co-op. It was around that time that the management of the co-op took measures to try and evict him. He has faced three or four evictions based on false allegations. He has yet to be evicted. In March 2010, Trudy Tully (“Tully”) became the property manager of the co-op.

[8] On June 10, 2010, the plaintiff was in his unit at the co-op when he heard a knock on the door. When he opened his door, he saw two ladies and Tully. The ladies were members of the co-op, Lilly Burke (“Burke”) and Shirley Wanigasekera (“Wanigasekera”). They advised the plaintiff that they were there to do the annual unit inspection. The plaintiff permitted the two ladies to come in but refused Tully entry and closed the door. Unit inspections were only to be done by members. Tully was not welcome to enter his unit. She was always aggressive with the plaintiff intimidating him with motions and gestures in the hallway. He believed that she was there to harass him. The plaintiff had not spoken to Tully prior to this date. He refused her entry into his unit however as the management of the co-op had harassed and assaulted him for years prior to Tully’s commencement as property manager.

[9] Tully forced her way into his unit. She pushed him and knocked him off balance. He fell into the closet. There was a metal bar in the closet. The plaintiff grabbed it and placed it on Tully’s side, putting his weight on it. Tully ran away yelling that he had hit her but he had not. The other ladies, who were in the unit at the time, finished the inspection and left.

[10] The plaintiff was extremely upset by what had happened. He presumed Tully was going to call the police. He was aware that Tully complained to the police that he assaulted her and he was aware that she gave a statement to the police that he assaulted her. He went for a walk down the hall. While in the hall, the doors to the elevator opened and he saw whom he now knows to be Constable Ellis and Constable Purvis. The officers were in full police uniform. He was aware that they were police officers. He knew that they were there to talk about the incident with Tully.

[11] The officers asked him his name and he told them he was Ken Street. He advised the officers that he needed to sit down. Neither of them objected. The plaintiff walked over to the window ledge and sat down. The officers did not appear aggressive at this point; there was nothing significant about their demeanor. Neither officer said anything to the plaintiff after he sat down. Neither officer asked him any questions. He never had an opportunity to tell his side of the story. The officers did not tell him why he was being arrested.

[12] A few moments after he sat on the ledge, Constable Ellis grabbed the plaintiff by the shoulder and threw him to the floor which was carpeted. The plaintiff’s forehead was the first part of his body to hit the ground. The plaintiff did nothing to precipitate this. Constable Ellis placed handcuffs on him and jumped on his back with a lot of force. Constable Ellis pushed the plaintiff’s head into the floor several times. Constable Ellis was trying to hurt him. He jumped on the plaintiff’s back and was trying to break it but the plaintiff fought that off. Constable Ellis became frustrated because the plaintiff was not as weak as he looked so the Constable tried to knee him in the ribs. He had a ferocious look on his face. The plaintiff was riling on the floor and Constable Ellis was telling him to stop resisting. This lasted for a couple of minutes until the elevator opened and someone came out. The plaintiff believes that had this not happened it would have been a lot worse for him. Throughout the attack by Constable Ellis, Constable Purvis did nothing. The plaintiff had a criminal on his back and asked Constable Purvis for help but he did nothing.

[13] The officers dragged the plaintiff to his feet and to the elevator still being very aggressive. Constable Ellis was not happy because he wanted to hurt the plaintiff but people had arrived. The plaintiff believes that the events unfolded as he described them because management was trying to evict him for a number of years. He pondered whether the management of the co-op had paid Constable Ellis to beat him up.

[14] The plaintiff admits that it is possible that he tried to spit on the officers in the elevator. When in the police car the plaintiff was told why he was under arrest and the reasons for his arrest. He was charged with assault, assault with a weapon and assault with intent to resist arrest and advised of his Charter rights. The plaintiff asked to speak to a lawyer.

[15] The plaintiff was taken to the police station, strip searched and humiliated. He was not given medical attention for his abrasions nor did he ask for it. He was allowed to use the telephone and spoke to a lawyer. The plaintiff was held overnight. He appeared before a Justice of the Peace the next day for a show-cause hearing. He was released on conditions that included he not enter the co-op or be found 100 meters from it except once with the police to pick-up personal belongings and that he abstain from communicating, contacting or associating with Tully. The plaintiff attended at the co-op with officers to retrieve his belongings. Before he could get to his van however, the escorting officers snuck away from him, went to the parking area, broke the window of his van and stole the van’s keys. Luckily, he had an extra set of keys.

[16] The plaintiff testified that the charges against him were withdrawn at a pre-trial for lack of disclosure. This is not reflected however in the transcript of proceedings before Justice of the Peace Skjrum dated May 4, 2011. Rather, the transcript reflects that the plaintiff attended a hearing with his lawyer. The court was provided with evidence that he attended ten sessions of counselling and the court accepted the proposed resolution of the charges that the plaintiff would enter into a peace bond and have no contact with Tully. He is to possess no weapons and continue counselling for mental health issues. Twelve months’ recognizance was ordered in the amount of $500.00. When presented with this fact in cross-examination, the plaintiff testified that “this was a backroom deal.” He states that he was not in the courtroom at the time of the hearing before the Justice of the Peace. When it was pointed out to him during cross examination that the transcript reflects that he was in the hearing room and that the Justice of the Peace spoke directly to him and reviewed the conditions with him and that he answered the court, the plaintiff testified that he had come into the courtroom “for that part.” The plaintiff signed the peace bond on May 4, 2011 and returned to the co-op thereafter.

[17] The plaintiff states that as a result of the incident of June 10, 2010 he suffered a concussion. The plaintiff attended at the hospital on June 12, 2010. The record from the hospital was admitted into evidence in accordance with the Evidence Act, R.S.O. 1990, c E.23, s. 35 (the business records exception to the traditional rule against hearsay). The plaintiff made complaints of a head injury. There is no medical evidence before the court, however, opining that a concussion was caused by the incident in question. The hospital record reflects that on examination at the hospital abrasions on the forehead and left temple were noted along with abrasions on the right knee, wrist and right side of the chest wall.

[18] Similarly, the plaintiff states that he suffered a rotator cuff injury as a result of the incident in question. There is no medical evidence before the court, however, opining that a rotator cuff injury was caused by the incident in question. The medical chart from his family doctor, Dr. Weicker from 2008-2014, was admitted into evidence in accordance with the Evidence Act, s. 35. The records reflect that on January 9, 2013 the plaintiff reports that he was “attacked” delivering letters in his building. The father of a daughter on the board of the co-op grabbed him and dragged him 100 feet to the elevator. The medical chart from Dr. Galea from 2011-2013 was admitted into evidence in accordance with the Evidence Act, s. 35. The chart included a letter from Dr. Zabieliauskas to Dr. Galea dated June 19, 2013 advising that he reviewed the plaintiff following his recent left shoulder MRI which showed a tiny articular sided partial tear through the superior subscapularis fibers bilaterally. There is no reference to a rotator cuff injury in any of the medical records admitted in accordance with the Evidence Act prior to June 2013.

[19] The plaintiff further states that he attended for acupuncture treatments as a result of shoulder and neck injuries sustained by the incident in question. Again, however there is no evidence before the court linking the injuries stated or the treatment received to the incident and the plaintiff admits that he had acupuncture treatments prior to June 10, 2010 for the residual issues related to his 1993 accident including problems with his neck and shoulders.

[20] The plaintiff submitted three photos to the court taken by a friend of his on June 13, 2010. The plaintiff testified that the purpose of the photos was to demonstrate the injuries sustained by him on June 10, 2010. The photos illustrate several abrasion marks to the left side of the plaintiff’s forehead. The court received no photos demonstrating injuries to other places of the plaintiff’s body as a result of the incident in question.

[21] The plaintiff states that he suffered a loss of income as a result of the incident of June 10, 2010. His 2009 tax return reflects a total income of $22,413. The court was not provided with any other income tax return of the plaintiff. The plaintiff testified that he worked full time in 2009. He worked part time as of June 2010 and has worked part time since June 2010.

[22] Since this incident, the plaintiff testified that he has continued to be harassed by Constable Ellis. According to the plaintiff the Constable has parked outside of the co-op several times, followed him in the mall, and followed him to the horse races. He has also continued to be harassed by the management of the co-op who have continued their efforts to evict him and by the police generally.

Constable Ellis

Constable Ellis is now referred to as Detective Constable Ellis as he works in plain clothes for the major crime unit of 23 Division of the Toronto Police Services. On June 10, 2010, he was referred to as Constable Ellis, a member with the same division of the primary response unit, having been hired in April 2009. As a member of the primary response unit, the Constable is a first responder to a 911 call, attending in a fully marked police car and full police uniform to the complainant’s residence. Unless otherwise stated the following represents the testimony of Constable Ellis.

[23] At 10:34 a.m. Constable Ellis and Constable Purvis received a computer-aided dispatch (“CAD”) report to the mobile work station located in the police cruiser. The CAD report was admitted into evidence as an exhibit. The CAD report relayed the information that the complainant gave to the dispatcher. It read that it was reported that a tenant in the building located at 930 Queens Plate Drive used a metal bar and struck the complainant (Tully) two times. She refused district ambulance service. The tenant is from apartment 1514. His name is Ken Street. He is approximately 50 years old and has returned to his apartment. The complainant (Tully) was giving notice to do unit inspections. This upset the tenant and he struck the complainant when she attempted to do the inspection. This occurred approximately 10 minutes ago. There are two volunteer witnesses.

[24] At 10:45 a.m., Constable Ellis and Constable Purvis arrived at the co-op. As they were in full uniform they were both carrying a firearm, pepper spray and a baton. They attended the management office. Tully, Burke and Wanigasekera were in the management office.

[25] At 10:58 a.m., Constable Ellis interviewed Wanigasekera. He wrote down what she told him and Wanigasekera signed her statement at 11:05 a.m. as recorded by Constable Ellis. Wanigasekera’s statement was as follows:

• On June 10, 2010 Tully, Burke, and Wanigasekera were inspecting units in the co-op.
• Street initially refused entry to his unit, and then said Burke and Wanigasekera could come in.
• When Tully attempted to enter his unit, Street became aggressive with her, and attempted to strike her with a metal object.
• Street swung at Tully multiple times, but Wanigasekera was unsure if Street in fact struck her because she was back.
• Tully said “he hit me.”
• Street said Tully had no right to enter his unit, and that no one could enter his bedroom.
• Wanigasekera identified Street as Caucasian, balding, short/average size, wearing shorts and a shirt.

[26] At 11:13 a.m., Constable Ellis interviewed Tully. He wrote down what she told him and Tully signed her statement at 11:30 a.m. as recorded by Constable Ellis. Tully gave evidence at the trial of this action on behalf of the defendants. She testified that the statement she gave Constable Ellis on June 10, 2010 was true at the time she gave it and that it continues to be true today. Tully’s statement was as follows:

• Tully was helping to inspect units that morning, and knocked on the door of Street’s unit.
• Burke and Wanigasekera entered.
• Street yelled at Tully, saying she was not permitted to enter, that she was trespassing, and he slammed the door shut.
• Tully entered the unit and Street hit her with his left fist against her chest.
• Burke was between Street and Tully.
• Street retrieved an aluminum bar with something metal attached to the end of it, from the closet near the front door and poked her on her left side of her rib twice.
• Burke was trying to intervene, and Street again hit Tully with his left hand against her chest.
• Street put down the bar (Tully said to find something else), at which point Tully left to call 911.
• Tully identified the plaintiff as roughly 50 years old, a white male, and about five and a half feet tall, wearing T shirt and shorts.
• The events left her sore and bruised. Tully maintained that she did not touch Street.

[27] At 11:40 a.m., Constable Ellis and Constable Purvis attended to speak with the plaintiff. Constable Ellis’ intention was to get his side of the story as, based on his investigation to date, there were reasonable grounds to arrest the plaintiff for assault and assault with a weapon. His experience is however that there are always two sides to the story. He wanted the plaintiff’s side of the story to verify if the witness’ statements were correct.

[28] While exiting the elevator he met face to face with a male matching the description of the plaintiff. He asked the male to identify himself. The male identified himself as the plaintiff. He advised the plaintiff that he needed to speak with him. The plaintiff was verbally confrontational and stated that she was not allowed in his apartment and that she was trespassing. The plaintiff advised that he needed to sit down and he began to walk away down the hall. Constable Ellis advised the plaintiff to stop. The plaintiff sat down on a bench near the window, built into the window ledge. Constable Ellis attempted to get the plaintiff’s side of the story.

[29] The plaintiff refused to cooperate. He would not allow Constable Ellis to speak. He would not tell his side of the story. The plaintiff became aggressive and angry. He advised that he was upset with the police and the co-op management for a previous issue that was not addressed.

[30] At 11:43 a.m. Constable Ellis advised the plaintiff that he was under arrest for assault and assault with a weapon. He asked the plaintiff to stand up and place his hands behind his back. The plaintiff became angrier. Constable Ellis attempted to take physical control of the plaintiff by touching his right arm for the purposes of handcuffing him. The plaintiff pulled away aggressively, actively resisting Constable Ellis and stating that he was not going anywhere. Constable Ellis then used soft to medium force in physically taking the plaintiff to the carpeted floor of the hallway in an attempt to restrain the plaintiff with handcuffs. During this exchange, the plaintiff hit his forehead on the wall which was less than ten feet from the bench. The Constable did not intend for the plaintiff to hit his head on the wall. Had the plaintiff stood up as directed to be handcuffed he would not have been taken to the ground. He was taken to the ground to permit the officers to control the situation.

[31] The plaintiff was face down on the floor with his arms under his chest. The Constable told him many times to stop resisting but he would not comply. The Constable also gave the order to give him his hands many times but the plaintiff refused. Constable Ellis placed his knee on the plaintiff’s lower back at his belt line to eliminate his center of gravity and to prevent him from getting up in order to maintain physical control of the plaintiff for the purposes of handcuffing him. Had the plaintiff not been actively resistant while on the floor he would have been handcuffed without issue.

[32] At no time did Constable Ellis kick or punch the plaintiff or strike him with his knee. He never jumped on the plaintiff’s back and never bashed his head repeatedly on the floor. Not only would this not be an effective technique, he would have rightly lost his job for such conduct.

[33] Every police officer in Ontario undergoes use of force training once a year. Constable Ellis received this training in September 2009. The province uses a use of force model as a guide to the appropriate level of force to use in a given situation. For example, an officer would not use physical control against a subject who is being cooperative and would not use lethal force on one that is actively resisting. The model suggests that an appropriate use of force on a subject that is actively resisting is mid-range between soft and hard physical control.

[34] The officers eventually got control of the plaintiff’s arms and handcuffed him. The plaintiff was strong. There was no indication that he was suffering from a disability.

[35] It was important that the plaintiff be handcuffed as part of his arrest as the plaintiff was acting aggressively and advised the officers that he would not go with them peacefully. The handcuffs were necessary for the plaintiff’s personal safety as well as that of the defendant Constables.

[36] Once handcuffed, the officers escorted the plaintiff to the elevator. He continued to be verbally abusive and he was foaming at the mouth. The plaintiff was spitting so his head was turned to the wall of the elevator.

[37] At 11:48 a.m., he was placed in the police car and transported to 23 Division. The video system in the police cruiser captured the plaintiff’s journey to the police station between 11:49 a.m. and 12:02 p.m. The video reflects that the officers spoke calmly and respectively to the plaintiff attempting to assist him with the next steps in the process. The plaintiff was told the reasons for his arrest, that he had a right to speak to a lawyer and that the plaintiff will have the opportunity to talk to a lawyer as soon as he gets to the station. The plaintiff was asked for his lawyer’s name and phone number. The plaintiff was advised that best efforts will be made to contact his specific lawyer as named but if not then someone from his firm. The plaintiff is inaudible in the video. In response to something he said however, Constable Ellis responded, “It is unfortunate you feel that way sir. I apologize for that.” Constable Ellis is also heard explaining to the plaintiff that as soon as they get into the facility he will take his handcuffs off.

[38] Constable Ellis repeatedly asked the plaintiff to provide his phone number or the names of his next of kin or employer. The reason for this is that it would have assisted the plaintiff in being released that day, had there been a way to contact him. Otherwise there are no assurances that he will attend at court and no way of contacting him if he fails to attend. Despite the Constable’s efforts, the plaintiff refused to provide this information.

[39] At 11:57 a.m., the plaintiff was brought to the officer in charge at 23 Division. He continued to be verbally confrontational. At 12:11 p.m. a Level II search was conducted on the plaintiff by the detective Constables, meaning a heavy pat down. The search results were negative. The officer in charge decided that the plaintiff should be held for a show-cause hearing in the morning. The officer in charge directed a Level III search.

[40] At 2:20 p.m., a Level III search was conducted by the detective Constables. This is colloquially described as a strip search although during the search the person is never completely naked. The search results were negative. The plaintiff continued to be verbally abusive expressing anger about the police.

On June 11, 2010 Constable Ellis completed an injury/illness report as the plaintiff suffered abrasions to his forehead. In the synopsis, the Constable wrote that the plaintiff hit his forehead on the wall of the building while he attempted to arrest him and that he had to use physical force to restrain and handcuff him.

[41] Constable Ellis had no involvement with Mr. Street before June 10, 2010. He has had no further involvement with the plaintiff’s charges. He has since been dispatched to the co-op but he was removed from the call and did not attend given the active nature of this case. Constable Ellis has seen the plaintiff since June 10, 2010 on occasion while engaged in the duties of his employment. He was in full uniform working a pay duty at the race track across the street from the co-op and saw the plaintiff there. He was assigned on numerous occasions to conduct a laser speed trap again in full uniform and in a patrol car in the area of the co-op and saw the plaintiff during the course of this effort. The sightings occurred over five years ago. The Constable has not worked in traffic for over five years. At no time has Constable Ellis conducted active surveillance on the plaintiff.

[42] At no time did the management of the co-op ask Constable Ellis to beat up the plaintiff. At no time did Constable Ellis receive money from the co-op.

Constable Purvis

[43] Constable Purvis is a member of the primary response unit for the Toronto Police Services, 22 Division. Prior to becoming a police office, Constable Purvis enjoyed a 25-year career in pharmacy. On June 10, 2010 he was seconded to 23 Division, again as a member of the primary response unit. As a member of the primary response until, the Constable is a first responder to a 911 call, attending in a fully marked police car and full police uniform to the complainant’s residence. He was sworn in as a police officer in September 2008 having joined the Toronto Police Services in April 2008. Constable Purvis has been trained in general investigation, scenes of crime, sexual assault investigation, mobile crisis intervention and as a death investigator. He also received training on the use of force model. Unless otherwise stated the following represents the testimony of Constable Purvis.

[44] At 10:34 a.m. Constable Ellis and Constable Purvis received a CAD report to the mobile work station located in the police cruiser. The CAD report relayed the information that the complainant gave to the dispatcher. It read that it was reported that a tenant that in the building located at 930 Queens Plate Drive used a metal bar and struck the complainant (Tully) two times. She refused district ambulance service. The tenant is from apartment 1514. His name is Ken Street. He is approximately 50 years old and has returned to his apartment. The complainant (Tully) was giving notice to do unit inspections. This upset the tenant and he struck the complainant when she attempted to do the inspection. This occurred approximately 10 minutes ago. There are two volunteer witnesses.

[45] Constable Ellis and Constable Purvis arrived at the co-op in a fully marked police cruiser. As they were in full uniform they were both carrying a firearm, pepper spray and a baton. They attended the management office.

[46] At 10:46 a.m. Constable Purvis interviewed Burke. Constable Purvis wrote down what Burke told him. Burke signed the statement and initialed every page of the statement using a different colour of pen than Constable Purvis. Burke’s statement was as follows:

• Tully, Burke, and Wanigasekera went to Street’s door to inspect his unit.
• Street answered the door and Tully informed him of their intention to conduct the inspection.
• Once the group entered, Street told Tully she was not allowed in.
• Street was angry, and said “fuck” repeatedly as he spoke.
• Street reached for something from the linen closet near the door. The object was thin at one end and thicker at the other, as if something had been added to it.
• At this point Street is yelling at Tully “Get out of here” and that she was not allowed in his unit.
• Burke told Street to behave himself. Street was trying to get around Burke and hit Tully on the left side. Burke was trying to stop it.
• Street repeatedly attempted to hit Tully several times fast.
• Tully stated that she was going to call 911.
• After Tully left, Street calmed down and told Burke that he wanted her and Wanigasekera to complete the inspection.
• They did so without incident but Street did not allow them entry to his bedroom.
• When asked about previous problems with Street, Burke stated that he was known to tell off people he does not like, and that he dislikes the management of the co-op.

[47] Burke testified on behalf of the plaintiff. Her evidence at trial was that she did not have her glasses with her when she was asked to review her statement taken by Constable Purvis on June 10, 2010. I accept that Burke’s statement as recorded by Constable Purvis accurately represents what she told the Constable on June 10, 2010. I make this conclusion for the following reasons taken together:

1. Burke admitted in cross-examination that she met with an officer on June 10, 2010 and that he asked her about what happened between the plaintiff and Tully at the time of the inspection. She testified that she answered the questions posed to her at that time truthfully and that the officer wrote down what she said.
2. Burke confirmed that the officer asked her to sign her statement and that she signed her statement.
3. Burke could not remember if the officer asked her to initial every page. Burke’s statement was admitted into evidence as an exhibit. Burke initialed every page of her statement with a pen in a different colour to that used by Constable Purvis in recording her statement.
4. Constable Purvis testified that his practice is to read out the statement recorded by him to anyone unable to read it themselves.
5. Burke gave her statement immediately following the incident.
6. The description of the incident as set out in Burke’s statement is consistent in substance with that as set out in the statement of Wanigasekera.
7. Burke’s statement provides the same detail as that recorded in Tully’s statement in that during the incident in the plaintiff’s unit, Burke was trying to get in between Tully and the plaintiff.

[48] After Constable Purvis interviewed Burke, he conferred with Constable Ellis who had interviewed the two other witnesses. Based on the statements of the three witnesses and the information provided to the mobile work station from the 911 operator, the officers believed that there were reasonable and probable grounds to arrest the plaintiff for assault and assault with a weapon. The officers contacted a Detective Constable with the criminal investigation branch at 23 Division to confirm their conclusion. The conclusion was confirmed.

[49] At 11:40 a.m. the officers proceeded to the 15th floor to speak with the plaintiff and get his side of the story. When the elevator opened the plaintiff was standing in front of it. He identified himself when asked. The plaintiff told the officers “you are here to see me because I pushed that lady out of my apartment.” The officers advised the plaintiff that they needed to speak with him. The plaintiff immediately became argumentative. He was very angry. He advised that he had a disability and that he could not stand for long. He went to sit on an alcove in the window.

[50] The officers followed him to the alcove. Constable Ellis was in front of him and Constable Purvis was beside him. The plaintiff was argumentative. He was using profanity excessively. He expressed that he was not happy with the police or the co-op’s management. He also expressed that he was upset with another person on the 15th floor. He was very angry with the officers and everyone else.

[51] The plaintiff would not listen to the officers. He was not co-operative. He was just angry and would not respond to their efforts to get his side of the story. He just kept repeating that “she” was not allowed to be a part of the unit inspections. The plaintiff told the officers nothing to detract from their conclusion that he was arrestable. At this time, he demonstrated passive resistance.

[52] At 11.43 a.m. Constable Ellis placed the plaintiff under arrest. He told him verbally that he was being charged with assault and assault with a weapon. Constable Ellis asked the plaintiff to stand up and put his hands behind his back. He did not. Constable Ellis took the plaintiff by his left arm. The plaintiff pulled back demonstrating active resistance. Constable Ellis took the plaintiff by the arm and took him to the ground. Unfortunately, the plaintiff’s head hit the back wall in the process.

[53] Once on the ground, the plaintiff continued to demonstrate active resistance. He held his arms under his chest. Constable Ellis managed to get the plaintiff’s left hand in a handcuff but the plaintiff continued to hold his right arm under his chest. The plaintiff did not obey the direction to stop resisting. He continued to scream profanities. Constable Purvis tried to get the plaintiff’s right arm from under his chest for the purposes of handcuffing the plaintiff but the plaintiff kept resisting. He was strong. Constable Purvis was eventually successful and the plaintiff’s right hand was placed in the handcuffs. The detective Constables stood the plaintiff up. Constable Purvis advised the plaintiff verbally that he was under arrest for assault and assault with a weapon.

[54] At no time did Constable Ellis kick, punch or strike the plaintiff with his knee. He never pushed the plaintiff’s head into the floor. If Constable Purvis saw any of this he would have stopped it immediately. He took an oath to protect people, this includes the plaintiff. At no time did the plaintiff ask for his help or assistance during the incidence.

[55] Constable Ellis put his knee on the plaintiff’s back at the belt line. Police officers are trained to gain control of someone who is actively resisting by putting the subject on the ground and placing the knee on the lower back to gain control of the hands and prevent the subject from hurting themselves or others.

[56] Once the plaintiff was handcuffed and brought to his feet, his use of profanity, belligerence and resistance continued. The officers tried to walk with the plaintiff to the elevator but he continued to resist collapsing his body and attempting to walk in different directions. Constable Purvis advised the plaintiff of his right to counsel outside the elevator. The plaintiff spit at the officers in the elevator and was turned to the wall of the elevator as a result. On the ground floor the plaintiff was pat down to search for weapons. The results of the pat down were negative. At 11:48 a.m., the plaintiff was placed into the police cruiser and taken to 23 Division.

[57] At the police station the plaintiff was paraded before the booking Sergeant and booked into the station. A Level II search was conducted by the defendant Constables. The plaintiff continued his verbally abusive conduct. The results of the Level II search were negative.

[58] Constable Purvis called the lawyer as provided to him by the plaintiff. The lawyer advised that he was not retained by the plaintiff but that he would speak to him. The plaintiff and the lawyer of his choice had a private telephone conversation.

[59] Constable Purvis entered the criminal investigation office and spoke to a Detective Constable about the arrest, providing information. The officer in charge decided that the plaintiff would go before a judge on a show-cause hearing in the morning. As the plaintiff was to be put in a cell the officer in charge directed the Detective Constables to contact a Level III search. The plaintiff continued to be verbally abusive and angry.

[60] Constable Purvis finished his notes. He has had no further involvement with this case. Constable Purvis never heard of or met the plaintiff prior to June 10, 2010 and never saw the plaintiff again after that day.

Conclusion

[61] The plaintiff and the defendant Constables tell differing versions of the relevant events of June 10, 2010. The court is tasked with the challenge of assessing the credibility of each of the party witnesses and accepting one version of the events over the other. The task is not without its difficulties. Each of the party witnesses took an oath to tell the truth prior to their respective testimony. The only certainty is that not all of the party witnesses are telling the truth. How, then, does the court decide whose testimony to believe and accept?

[62] The trier of fact may apply common sense and human experience to determine the credibility and reliability of evidence, and to decide how to use different pieces of evidence in making a finding of fact: see David M. Paciocco & Lee Stuesser, The Law of Evidence (Toronto: Irwin Law, 2015), at p. 566. In assessing testimony from a witness, credibility relates to honesty, and reliability relates to accuracy. Credible and accurate evidence is afforded greater weight: The Law of Evidence, at pp. 35-36; citing R. v. Norman (1993), 26 C.R. (4th) 256 (Ont. C.A.).

[63] Trial judges reconcile competing testimonies presented at trial within the broader context of the case: see Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171, which dealt with conflicting evidence from witnesses, and was relied on in R. v. Norman. In addition to holding that credibility cannot be assessed solely by assessing the demeanor of a witness, in Faryna v. Chorny, O’Halloran J.A. emphasized the utility of assessing evidence in context at p. 174: “In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

[64] As noted above, Tully testified at the trial this action. I found her testimony credible and I accept it. Tully answered the questions posed to her without emotion; she simply attested to the facts. Tully was candid with the court if she no longer had an independent recollection of the event presented by the question and she was otherwise consistent in detail with the statement she provided to Constable Ellis on June 10, 2010.

[65] Tully advised the court that the co-op is equipped with 36 video cameras. She explained that of the 36 cameras, there are 2 cameras in the elevator and 3 in the hallway of the 15th floor. Tully is able to conduct surveillance through the camera system. She has a monitor on her desk in her office where she is able to observe the coloured picture presented by the cameras without audio.

[66] Tully testified that after the defendant Constables left her office on June 10, 2010 to speak with the plaintiff, she monitored their actions through the surveillance system from the monitor on her desk. She watched the officers get into the elevator and get off at the 15th floor. The plaintiff was standing at the elevator doors when they opened. The plaintiff and the officers talked with each other briefly and then the plaintiff walked over and sat on the window ledge. Tully observed that one officer was in front of the plaintiff and one officer was beside him. She further observed that the plaintiff appeared agitated as he was talking a lot and shaking his head. Tully saw the plaintiff raise his right hand. He seemed agitated. The officers appeared calm. Tully observed the plaintiff taken to the ground, he was face down and the police were handcuffing him. She then saw the officers stand the plaintiff up, walk him to the elevator and enter the elevator with him. At no time while she observed the plaintiff and the officers through the co-op’s surveillance system did Tully see the officers hit the plaintiff, kick the plaintiff, jump on the plaintiff’s back, strike the plaintiff with a knee or push the plaintiff’s face into the floor.

[67] Tully testified that the police attended at the co-op in January 2011 to inquire for the first time about the surveillance system and the exchange between the parties on June 10, 2010. She advised the police that the system is such that the recordings are looped every two to three weeks; meaning that a particular video is available for only two to three weeks after which it gets recorded over. The recordings from June 10, 2010 had long since been recorded over.

[68] Both Constable Ellis and Constable Purvis made notes of their observations of the incident during and shortly after the incident. Neither of them altered the notes, which were made in pen. Neither of them referred to someone else’s notes prior to respectively making their own notes. As it has been eight years after the incident, the court granted leave to the officers to refer to their notes to refresh their respective memories.

[69] The officers respectively gave testimony directly without narrative or comment beyond what was recorded in their notes. When asked a question about a detail of the incident not recorded in the notes, both officers were candid in advising the court that they could not remember given the passage of time. The evidence of the Constables is not entirely consistent. Constable Ellis believes he grabbed the plaintiff by his right arm while Constable Purvis believes it was his left arm. The inconsistency however is not significant to the assessment of credibility or to the issues before the court. It is significant that both officers describe the incident as the plaintiff being belligerent, angry, upset with management and the police.

[70] Both officers are consistent that the plaintiff was not cooperative, would not provide his side of the story and was not compliant with the orders to stand, put his hands behind his back and to stop resisting arrest. Both officers are further consistent that at no time did Constable Ellis throw the plaintiff to the floor, bang his head into the floor, kick him, punch him, hit him with his knee or jump on his back. I have no reason to doubt the credibility of testimony as provided by Constable Ellis and Constable Purvis.

[71] By contrast, I do have reason to doubt the credibility of the testimony provided by the plaintiff. The plaintiff had some concerning issues of credibility with his evidence, detailed as follows:

1. The plaintiff testified that he was not in the court room during the hearing before Justice of the Peace Skjrum dated May 4, 2011, although his presence and participation is clearly reflected in the transcript of proceedings.
2. The plaintiff testified that the charges against him were dropped at a pre-trial conference for lack of disclosure. This statement is completely contradicted by the transcript of proceedings of the hearing before Justice of the Peace Skjrum dated May 4, 2011 wherein a peace bond and conditions were entered into by the plaintiff as a result of the charges are detailed.
3. The plaintiff testified that he did not hit the wall with the front of his head when Constable Ellis took him to the ground. He pleaded however that “he struck the front of his head on the wall which resulted in an abrasion and bruising above his eye and redness to his forehead.” When presented with this contradiction during cross examination the plaintiff testified that the pleading was a mistake, the lawyer who drafted his claim on his behalf was unprofessional and that she was colluding with defence counsel against him. The fact remains that the admission as set out in the claim that the plaintiff struck his head during the incident was not withdrawn prior to trial.
4. The plaintiff testified that he suffered a rotator cuff injury as a result of the incident in question. The medical evidence before the court, however, demonstrates that the rotator cuff injury occurred in January 2013 and was diagnosed in June 2013.
5. The plaintiff testified that he was not upset that the defendant Constables attended at the co-op to speak with him on June 10, 2010. At his examination for discovery held May 8, 2014, he was asked “I guess you were upset that the police officers attended” and he responded “absolutely.”
6. The plaintiff testified that he was not sure if he was working full time or part time in June 2010. At his examination for discovery dated May 8, 2014 he deposed that he was working part time in June 2010.
7. The plaintiff testified that Constable Ellis threw him to the floor, handcuffed him and jumped on his back. At his examination for discovery dated May 8, 2014 he deposed that Constable Ellis threw him to the floor, jumped on him and then handcuffed him.
8. The plaintiff’s testimony of what happened in his unit when the ladies attended to conduct the annual expectation is entirely inconsistent with the statements of Tully, Burke and Wanigaes describing the incident.
9. The plaintiff has made bald statements without foundation that defy common sense. For example, he testified that the officers that escorted him to the co-op so that he may retrieve his belongings somehow snuck away from him, went into the garage of the co-op, broke the window to his van and stole the van’s keys. He further testified that Tully was aggressive with him prior to June 10, 2010 but he had never met her or had a conversation with her prior to that time.

[72] There is good reason from a credibility and a reliability perspective therefore to doubt the version of events put forward by the plaintiff and prefer the version put forward by the defendant Constables and corroborated by Tully.

[73] There is also good reason from a common-sense and a reasonable probability perspective, considering the broader context demonstrated by the evidence, to prefer the version of events put forward by the defendant Constables. It defies logic that Constable Ellis, who had no interactions with the plaintiff prior to June 10, 2010, would suddenly and without justification or provocation use force to take the plaintiff to the floor and beat him gratuitously. This is particularly so considering the plaintiff’s testimony that he advised the officers that he needed to sit down, neither of them objected, neither of them were aggressive and neither officer said anything to the plaintiff after he sat down. The only explanation the plaintiff offered for such conduct is similarly illogical and without an evidentiary basis in that management may have been paying the Constable to beat him up.

[74] It further defies logic that Constable Purvis, who the plaintiff described as quite professional, would just stand there in silence, ignore the cries of help from the plaintiff and allow Constable Ellis to beat up the plaintiff. Further, the officers’ demeanor and treatment of the plaintiff during the ride to the police station after the incident is also inconsistent with the version of events proffered by the plaintiff. It does not logically follow that the officers would address the plaintiff respectively, assure him of their promised efforts to contact his counsel, apologize to him for his stated feelings and diligently try to get his phone number or next of kin to assist in the plaintiff’s effort to avoid an overnight in jail.

[75] Finally, the plaintiff’s injuries are not consistent with the force he alleges was used. The evidence demonstrates that the injuries the plaintiff sustained were in the nature of abrasions and bruises. The injuries would have been much worse if Constable Ellis jumped on the plaintiff’s back with his knees and bashed the plaintiff’s head against the floor repeatedly, as alleged by the plaintiff. Conversely, the injuries sustained by the plaintiff as evidenced are consistent with someone hitting his head against a wall during a take down and then struggling on a carpeted floor (rug burn).

[76] It is for these reasons that I have concluded that the plaintiff has failed to prove on a balance of probabilities that his version of events actually occurred. I find as a fact that the force used by the defendant Constables in arresting the plaintiff on June 10, 2010 is as described as follows:

1. The defendant Constables received credible information that the plaintiff had assaulted the co-op manager with a metal rod.
2. The plaintiff refused to answer the officers’ questions about what happened with Tully.
3. Constable Ellis verbally advised the plaintiff that he was under arrest for assault and assault with a weapon. He asked the plaintiff to stand up and place his hands behind his back for the purpose of handcuffing him. The plaintiff became angrier.
4. Constable Ellis attempted to take physical control of the plaintiff by touching his arm for the purposes of handcuffing him. The plaintiff pulled away aggressively, resisting Constable Ellis and stating that he was not going anywhere.
5. Constable Ellis then used force in physically taking the plaintiff to the carpeted floor of the hallway in an attempt to restrain the plaintiff with handcuffs and effect the arrest.
6. During the take down, the plaintiff hit his forehead on the wall which was less than ten feet from the bench.
7. The plaintiff was face down on the floor with his arms under his chest. The Constables directed him many times to stop resisting but he would not comply.
8. The Constables also gave the order to give them his hands many times but the plaintiff refused.
9. The plaintiff struggled with the officers while on the floor.
10. Constable Ellis placed his knee on the plaintiff’s lower back at his belt line to eliminate his center of gravity and to prevent him from getting up in order to maintain physical control of the plaintiff for the purposes of handcuffing him.
11. The defendant Constables managed to handcuff the plaintiff and bring him to his feet.
12. At no time did Constable Ellis kick or punch the plaintiff or strike the plaintiff with his knee. He never jumped on the plaintiff’s back and never bashed his head repeatedly into the ground.

Issues of Law

[77] The following legal issues are presented by the plaintiff’s claim:

1. Whether the force used by the defendant Constables in arresting the plaintiff on June 10, 2010 was justified by s. 25 of the Criminal Code, R.S.C. 1985, c. C-46.
2. What is the standard of care to which a police officer should be held in respect of the investigation of allegations of assault and assault with a weapon?
3. Did either Constable Ellis or Constable Purvis breach that duty in respect of their investigation of the allegations of assault and assault with a weapon against the plaintiff?
4. Did either Constable Ellis or Constable Purvis breach the plaintiff’s rights under s. 7 or s. 9 of the Canadian Charter of Rights and Freedoms?
5. What injuries were sustained by the plaintiff which were caused or contributed to by the actions of the defendant Constables?
6. What is the value of the plaintiff’s general damage claim?
7. What is the value of the plaintiff’s Charter damage claim?
8. Should the plaintiff be permitted to advance a claim for loss of income?
9. If so, what is the value of any claim for loss of income?
10. Is the plaintiff entitled to punitive damages?
11. If so, what it the value of the plaintiff’s punitive damage claim?

Whether the force used by the defendant Constables in arresting the plaintiff on June 10, 2010 is justified by s. 25 of the Criminal Code.

[78] I have determined factually what force was used. The onus now shifts to the defendants to prove that such force was justified.

[79] Section 25(1) of the Criminal Code provides:

Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office, 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.

[80] In Wilsdon v. Durham Regional Police, 2011 ONSC 3419, this court set out the s. 25(1) test to apply in a civil action, at paras. 68-69:

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. [Citations omitted.]

[81] Police are not judged against a standard of perfection: R. v. Nasogaluak, 2010 SCC 6, at para. 35. This flows from the nature of police work, where officers must respond quickly to dangerous situations based on little information: R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.) at 218; Castro v. Monteiro, 2012 ONSC 6907, at para. 45. The context of their work necessitates that police be afforded wide discretion to carry out their duties: Castro v. Monteiro, 2012 ONSC 6907, at para. 45.

[82] Courts do not use hindsight to assess whether use of force was reasonable: Fleming v. Ontario, 2018 ONCA 160, at para. 63; Webster v. Edmonton (City) Police Service, 2007 ABCA 23, at para. 26. Instead, to judge the reasonableness of the police officer’s conduct, the trier of fact should “accompany him or her through all of the relevant events, considering his or her training, experience and the orders of the day”: Landry v. Rains, 2012 ONSC 7144, at para. 12.

[83] Police are also not required to use only the minimum amount of force to complete their objectives: Levesque v. Zannibii, 1992 CarswellOnt 2832 (Ont. Ct. J. (Gen. Div.)), at para. 17. Where the person subject to arrest is injured, that does not automatically render the use of force excessive: Landry v. Rains, at para. 12; citing Berntt v. Vancouver (City), 1999 BCCA 345, at para. 27; R. v. Eyo, 2012 ONSC 3634, at para. 43.

[84] In my view, the force used by the defendant Constables in arresting the plaintiff was justified by s. 25 of the Criminal Code. The defendant Constables were authorized as police officers to arrest the plaintiff in the administration of law, s. 42(1) of the Police Services Act, R.S.O. 1990, c. P-15. It was reasonable for the defendant Constables to use force as the plaintiff refused to stand up and put his hands behind his back and he resisted attempts to take him into custody by pulling away aggressively when Constable Ellis attempted to stand him up with the use of touching: R. v. Angstadt, 2015 ABQB 547, at paras. 116-26.

[85] In determining whether the defendant Constables used unnecessary force I am guided by the general principles derived from Canadian jurisprudence and summarized as follows:

• Police are not judged against a standard of perfection, nor with the benefit of hindsight.
• Considering the nature of police duties, police have wide discretion and courts are careful to intervene where a breach of s. 25(1) is alleged.
• Officers are not liable under s. 25(1) so long as they use no more force than necessary.
• An injury sustained by the subject of the arrest is not dispositive of a civil action based on s. 25(1).

[86] In my view, no excessive force was used in arresting the plaintiff. I make this conclusion for the following reasons taken together:

1. Constable Ellis attempted to rise the plaintiff to his feet by his arm. This touching occurred only after the plaintiff refused to stand up as directed, after he was told he was being placed under arrest, with a view to his detention: R. v. Asante-Mensah, 2003 SCC 38, [2002] 2 S.C.R. 3, at para. 42.
2. The plaintiff was verbally aggressive with the officers from the time they presented themselves to him. He refused to permit them to communicate with them. The plaintiff was angry with the police in general referring to a previous incident that he felt was not dealt with and the plaintiff blatantly told the officers that he was not going to cooperate and go with them freely. He was belligerent and speaking in profanities. The plaintiff was advised that he was under arrest. He was resistant towards Constable Ellis’s efforts to take him into custody. Constable Ellis took the plaintiff to the ground in order to gain control over him. According to the provincial use of force mode, the plaintiff’s resistant which both officers described as active, justified the use of medium physical control techniques such as grounding: Ludlow v. Victoria (City), 2014 BCSC 295, at para. 113; Leclair v. Ottawa Police Services Board, 2012 ONSC 1729, at para. 69.
3. On the floor, the plaintiff continued to resist the officers’ efforts to take him into custody by holding his arms under his chest. Constable Ellis placed his knee on the small of the plaintiff’s lower back by his belt line in an effort to release his arms or arm from under his chest. The plaintiff’s conduct in placing his hands under his chest while on the floor demonstrates that he knew what was being asked of him but refused to comply. I accept that this was a reasonable use of force and technique to eliminate the plaintiff’s center of gravity and free his arms from under his chest to facilitate the handcuffing.
4. The plaintiff was injured in the course of his takedown. After the plaintiff refused Constable Ellis’s direction to stand up and put his hands behind his back and after he resisted the Constable’s efforts to lift him up for the purpose of handcuffing him, the Constable took the plaintiff to the floor. The take down was reasonable given the failure of the plaintiff to adhere to direction and his efforts in defying the defendant Constables’ efforts to gain control over him up to that point. The injury occurred when Constable Ellis took the plaintiff to the floor given the proximity of the wall to the ledge upon which the plaintiff was sitting. It is unfortunate that the plaintiff was injured during the course of the take down but the injury in isolation offers no insight into whether the use of force was reasonable. I have found that the decision to take the plaintiff to the ground was reasonable. The fact that the plaintiff was injured during the course of the takedown has no bearing on that conclusion. It must be said that the takedown would not have occurred had the plaintiff complied with the direction of the officers and stood up and put his hands behind his back for the purposes of handcuffing: Smith v. Van Sabben, 2009 SKQB 496, at paras. 90, 92, 95.
5. After the plaintiff was taken to the ground, he held his hands under his chest, failed to comply with the officers’ direction to give up his hands and continued to struggle with the officers until the handcuffs were applied and thereafter. The officers were authorized in controlling the plaintiff with handcuffs as they were authorized and justified in arresting him with assault and assault with a weapon. Police are entitled to arrest someone using handcuffs as long as they have a reason to bind the person being arrested and if they do so reasonably: R. v. Cunningham and Ritchie (1979), 49 C.C.C. (2d) 390 (Man. Co. Ct.), at para 22; Sherman v. Renwick, [2001] O.T.C. 135 (Ont. Sup. Ct.), at para. 69; Leclair, at para. 63.
6. The plaintiff advised Constable Purvis that he had a disability. There is no medical evidence before the court opining that the plaintiff suffered from a disability in June 2010 or the details of the extent of that disability. The evidence is consistent that the plaintiff was not walking with a cane during his interaction with the officers on June 10, 2010. The defendant officers testified that the plaintiff did not conduct himself as if he was disabled but rather demonstrated strength in his efforts to resist arrest. The plaintiff also testified that he demonstrated strength while he was on the floor. The officers received credible evidence that the plaintiff assaulted Tully with a metal rod. They perceived the plaintiff to be actively resisting arrest without any signs of a disability. In these specific circumstances therefore, and for these reasons, the plaintiff’s utterance that he was suffering from a disability does not negate the finding that the use of force was reasonable. Again, the use of force would not have been necessary had the plaintiff cooperated and stood up when asked.

What is the standard of care to which a police officer should be held in respect of the investigation of allegation of assault and assault with a weapon?

[87] In J.H. v. Windsor Police Services Board et al., 2017 ONSC 6507, at para. 6 this court summarized the law on negligent investigation as follows:

• Investigating officers owe suspects a duty of care;
• A plaintiff who advances a claim for negligent investigation has the burden of proving every element of his or her case, including a failure by police to meet the applicable standard of care, and that the relevant failure caused harm compensable at law;
• Generally, establishing the standard of care of a police officer in the context of the particular facts of a claim will require expert evidence, except where the matters involved are non-technical and where the impugned actions are so egregious that it is obvious that a defendant’s conduct has fallen short;
• The law does not demand a perfect or optimum police investigation, only that police conducting an investigation act reasonably;
• The particular conduct required by the applicable standard of care is informed by the stage of the investigation and applicable legal considerations. In relation to arrests and laying of charges by the police, the standard of care applicable to negligent investigation claims is informed by the requirement of “reasonable and probable grounds,” and does not rise higher than that of criminal law standard;
• Where reasonable and probable grounds exist for an arrest and/or laying of charges, the applicable duty of care is met and there will be no police negligence in that regard.
• In cases based on alleged police negligence in making an arrest or laying charges, the plaintiff accordingly must establish an absence of reasonable and probable grounds as an essential element of the tort, and the existence of reasonable and probable grounds will be fatal to the claim. In that regard, principles relating to “reasonable and probable grounds” include the following:
  • The officer making an arrest or laying charges must subjectively believe he or she has reasonable and probable grounds on which to base an arrest or charge. Those grounds must, in addition, be justifiable from an objective point of view; i.e., 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 or charge.
  • On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction, or that a charge would succeed at trial, before making an arrest or charge.
  • Where an officer provides sworn evidence that he or she subjectively had reasonable and probable grounds, and is not cross-examined on that belief, the court is entitled to accept that evidence.
  • The determination as to whether there were reasonable and probable grounds is based upon an analysis of the circumstances apparent to the officer at the time of the officer’s decision to make an arrest or lay charges, and not upon what the officer or anyone else may have learned later. In particular, if reasonable and probable grounds existed at the relevant time, they still exist in the sense required even where the information relied upon changes at a later date, or otherwise turns out to be deficient or inaccurate.
  • Police also are not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses, obtain or accept a suspect’s version of events, or otherwise establish there is no valid defence, before being able to form reasonable and probable grounds. More generally, an arresting officer does not have to complete an investigation before being able to lawfully arrest a suspect or lay charges; nor does an intention to conduct further investigation after an arrest or laying of charges undermine the formation of reasonable and probable grounds.
  • In establishing reasonable and probable grounds, investigating officers must take into account all information available to them, and are only allowed to disregard information which they have good reason to believe is unreliable. However, despite possible frailties in credibility or reliability (including passage of time, inconsistencies, motive for concoction and/or mental illness), the uncorroborated testimony of a single witness, (including a child witness), may be a sufficient basis upon which to convict, and therefore provide reasonable and probable grounds for an arrest or charge. [Citations omitted.]

[88] In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, at para. 55 the Supreme Court of Canada confirmed that reasonable and probable grounds will satisfy the standard of care regarding the decision to arrest. In Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 192, the Supreme Court adopted the following definition of reasonable and probable cause from the U.K. High Court in Hicks v. Faulkner (1878), 8 Q.B.D. 167, at p. 171:

an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

[89] In Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, the Court of Appeal for Ontario at para. 80 reiterated that when assessing the reasonableness of the officer’s decision to arrest, the question is whether that officer had grounds to do so: see also R. v. Carelse-Brown, 2016 ONCA 943. Courts will not find a breach of the standard of care merely because other options were available to the officer. This flows from the discretion afforded to officers. Again, police are not judged against a perfect or even optimal standard, but instead against the standard of a “reasonable police officer […] in the circumstances prevailing at the time the decision was made”: Hill, at para. 73.

Did either Constable Ellis or Constable Purvis breach that duty in respect of their investigation of the allegations of assault and assault with a weapon against the plaintiff?

[90] The plaintiff led no evidence to assist the court in determining the standard of care applicable in the circumstances before the court. Further, the evidence demonstrates that there were reasonable and probable grounds for the arrest. I have found no negligence in respect of the investigation.

[91] The officers received information as provided by Tully to the dispatcher through the mobile office in the patrol car. Once at the co-op, the officers interviewed and took signed statements from Tully and the two witnesses, Burke and Wanigasekera, immediately following the incident. The three statements were not consistent in every detail. They collectively reflected, however, that the plaintiff was angry and armed with a metal object attempting to strike Tully. Wanigasekera’s statement was such that the plaintiff swung the metal object at Tully many times but she was unsure if he hit her because she was back. Burke’s statement was such that the plaintiff was trying to go around her and hit Tully on the left side and that he tried to hit Trudy several times very fast. The two witnesses confirmed that they heard Tully say “he hit me” during the dramatic exchange. Tully’s statement was that the plaintiff hit her two times with the metal object. The officers reviewed the witness statements with a Deputy Constable in the criminal investigations branch who confirmed their conclusion that the plaintiff was arrestable for assault and assault with a weapon. There is no evidence calling into question the honesty of the officers’ belief in the guilt of the plaintiff. The officers attempted to receive the plaintiff’s side of the story but he refused to provide it to them. The defendant Constables had before them then only those facts pointing to the plaintiff’s conduct as described by Tully and the witnesses such that the objective component of the test for reasonable and probable grounds is satisfied.

[92] The plaintiff submits that the investigation was negligent in part as the police did not obtain a copy of the video recording of the incident that occurred on the 15th floor and viewed by Tully in real time. I disagree. The plaintiff was arrested for his conduct that occurred inside his unit. The video did not record his conduct. Further, the video reflects the conduct of the officers only after they determined the plaintiff was arrestable for assault and assault with a weapon. Finally, a copy of the video was requested by the investigator in January 2011 but it had been over-written by that point in time. There is no evidence to explain why the plaintiff himself did not request a copy of the video from management or request that it be preserved and not over-written despite his knowledge of its existence as demonstrated by his statement to his family doctor on June 17, 2010.

Did either Constable Ellis or Constable Purvis breach the plaintiff’s rights under ss. 7 or 9 of the Charter?

[93] Section 7 of the Charter of Rights of Freedoms provides:

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[94] For s. 7 to be engaged, in general the plaintiff must establish that an interest protected by this section is implicated by the defendant’s conduct: see Blencoe v. B.C. (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. A s. 7 breach in the context of an alleged excessive use of force has been made out where the court found that there was a substantial interference into the plaintiff’s physical and psychological integrity: R. v. Nasogaluak, at para. 38.

[95] It appears from a generous reading of the Statement of Claim that the plaintiff alleges that his s. 7 rights were violated as a result of excessive use of force during the arrest. For reasons set out above, I have concluded that there was no excessive use of force used during the arrest of the plaintiff. There was therefore no breach of the plaintiff’s rights as guaranteed by s. 7 of the Charter.

[96] Section 9 of the Charter provides:

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[97] A detention under s. 9 refers to the suspension of a person’s liberty interest by a significant physical or psychological restraint: R. v. Grant, 2009 SCC 32. An unlawful detention lacks either legal grounds or reasonable suspicion, and amounts to a s. 9 breach: see Grant, at paras. 55-57.

Sections 497(1) and 1.1 of the Criminal Code provide:

Release from custody by peace officer

497 (1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b) or (c), the peace officer shall, as soon as practicable, (a) release the person from custody with the intention of compelling their appearance by way of summons; or (b) issue an appearance notice to the person and then release them.

Exception

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[98] It was reasonable for the officers to take the plaintiff into custody and remove him from the co-op given that he was under arrest for assaulting the co-op manager with a metal object and two members of the co-op offered voluntary witness statements contrary to his interest. The plaintiff refused to provide the detective Constables with his next of kin, a phone number or an employer. Constable Purvis testified that the purpose of such questioning was to establish the identity of the plaintiff and some basic information to insure his attendance at court and increase his opportunity to be released without detention. In accordance with procedure, the officers paraded the plaintiff before the office in charge. It was the officer in charge who decided a show-cause hearing was necessary. It was not the decision of the defendant Constables. More significantly, the Justice at the show-cause hearing determined that the plaintiff’s release was conditional to the plaintiff agreeing to abide by the significant terms of his recognizance including abstaining from contacting Tully and from living at the co-op. It cannot be said that the plaintiff was detained arbitrarily. There was therefore no breach of the plaintiff’s rights as guaranteed by s. 9 of the Charter.

What injuries were sustained by the plaintiff which were caused or contributed to by the actions of the defendant Constables?

[99] The evidence demonstrates that the injuries sustained by the plaintiff as a result of his arrest on June 10, 2010 were limited to abrasions that are in nature of rug burn and minor bruising. On examination of the plaintiff at the hospital on June 12, 2010 abrasions on the forehead and left temple are noted along with abrasions on the right knee, wrist and right side of the chest wall. Similarly, on June 17, 2010 Dr. Weicker notes an abrasion to the forehead, left temple, right wrist and to the right knee. The doctor records complaints of trunk pain and right lateral bending on the left.

[100] The court is without medical evidence opining that the plaintiff sustained any injuries caused or contributed to by the actions of the defendant Constables. The business records of Dr. Weicker from 2008-2014 and Dr. Galea from 2011-2013 catalogue the plaintiff’s physical complaints but there is no evidence demonstrating a causal link between the complaints and the actions of the defendant Constables. Further, the court is without any causation evidence concerning the plaintiff’s physical complaints and the plaintiff’s pre-existing issues from the 1993 horse accident or the 2013 issue bilateral tear of his superior subscapularis fibers. Similarly, the evidentiary record is without opinion evidence explaining why the plaintiff attended for acupuncture treatments after June 10, 2010 although the plaintiff testified that he attended for such treatments prior to June 10, 2010 for issues related to the 1993 incident.

What is the value of the plaintiff’s general and Charter damage claim?

[101] For reasons set out above, the plaintiff’s action is properly dismissed such that no damages are properly awarded. If I am incorrect in this conclusion, I would assess damages for the abrasions and minor bruises in the amount of $2,000.

Should the plaintiff be permitted to advance a claim for loss of income?

[102] The plaintiff was represented by counsel at his examination for discovery held on May 8, 2014. The plaintiff was asked at that time “is there a claim for loss of income or anything – any economic loss?” The answer given on behalf of the plaintiff by his then counsel was, “Not at this point. We’ll let you know if there is.” At no time between the plaintiff’s examination for discovery and the commencement of trial were the defendants advised that the plaintiff had changed his positon taken at discovery that he had withdrawn and was not advancing a claim for economic loss. Under these circumstances therefore, the plaintiff is not permitted to advance a claim for loss of income. The defendants were entitled to rely on the representation given at the plaintiff’s discovery and prepare for trial in a way consistent with the fact that they were not defending a claim for economic loss.

[103] To allow the plaintiff to advance a claim for economic loss now would run counter to the purposes of examinations for discovery, which were summarized in Ontario Bean Producers' Marketing Board v. W. G. Thompson & Sons Ltd. (1981), 32 O.R. (2d) 69 (Ont. H.C.J.) at 72 (Ont. H.C.J.) as follows: “(a) to enable the examining party to know the case he has to meet; (b) to procure admissions to enable one to dispense with formal proof; (c) to procure admissions which may destroy an opponent's case; (d) to facilitate settlement, pre-trial procedure and trials; (e) to eliminate or narrow issues; (f) to avoid surprise at trial.” See also the case law summary in CIBC v. Deloitte & Touche, 2013 ONSC 917, at para. 65. Rule 31.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 further provides that counsel may answer on behalf of the person being examined, barring any objection or subsequent amendments.

If so, what is the value of any claim for loss of income?

[104] Even if the plaintiff was permitted to advance a claim for loss of income, for reasons set out above, the plaintiff’s action is properly dismissed such that no damages are properly awarded. If I am incorrect in this conclusion, the claim for loss of income would nonetheless be valued at $0 as the evidentiary record before the court fails to prove a loss. The only evidence before the court in terms of the plaintiff’s income is his 2009 income tax return. His 2009 tax return reflects a total income of $22,413. The plaintiff’s evidence is that he worked full time in 2009, was working part time in June 2010 and that he continued to work part time since June 2010. There is no evidence before the court therefore demonstrating or quantifying a loss of income as a result of the incident of June 10, 2010.

Is the plaintiff entitled to punitive damages?

[105] The plaintiff is not entitled to punitive damages. I have found no “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour” on the part of the defendant Constables for reasons set out above: see Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 94. See also Berketa v. Niagara Police Services Board, at paras. 88-90 (Ont. Sup. Ct.); citing Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813 (C.A.) at p. 828 (C.A.).

If so, what it the value of the plaintiff’s punitive damage claim.

[106] Given my finding that the plaintiff is not entitled to punitive damages, this issue is not applicable.

Conclusion

[107] For reasons set out above I have concluded that the plaintiff’s claim is properly dismissed in its entirety. The evidence fails to demonstrate the liability of the defendants as claimed. In terms of costs, I would encourage the defendants to consider the probability of collecting a costs award from the plaintiff, if granted, when considering whether to pursue a costs award against the plaintiff. If the defendants wish to do so however I will receive written costs submission of not more than 2 pages within 30 days. The plaintiff shall respond to these submissions in writing with his own costs submissions of not more than 2 pages within 30 days of the receipt of the defendant’s costs submissions.

V.R. Chiappetta J.

Released: July 12, 2018

COURT FILE NO.: CV-14-512354 DATE: 20180712

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KEN STREET Plaintiff – and – TORONTO POLICE SERVICES BOARD, CONSTABLE MATTHEW ELLIS and CONSTABLE DAVID PURVIS Defendants

REASONS FOR JUDGMENT V.R. Chiappetta J.