ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 7471/13
DATE: 2019-08-26
B E T W E E N:
Roy Atkinson
Margaret A. Hoy, for the Plaintiff
Plaintiff
- and -
Niagara Regional Police Service, Regional Municipality of Niagara Police Services Board, Cst. Mike Breton, Cst. Bruce Mair and Cst. Geoffrey Purdie
Scott A. Crocco, for the Defendants
Defendants
HEARD: April 1, 2, 3, 4, 5, 15, 16 and 17, 2019
REASONS FOR JUDGMENT
THE HONOURABLE JUSTICE L. C. SHEARD
Overview
[1] The plaintiff, Roy Atkinson (“Atkinson”), sues the defendants for general, special, punitive and exemplary damages in the amount of $500,000 for negligence, assault and breach of the Canadian Charter of Rights and Freedoms. At the conclusion of trial, the plaintiff withdrew his allegation of negligence.
[2] Atkinson’s claims arise from events that took place at The Plaice Restaurant in Fort Erie, Ontario (the “Plaice”) on February 4, 2012. Atkinson and his son, Wesley Atkinson (“Wesley”), went to the Plaice for beer and dinner. As they sat down at the bar, Atkinson noticed a child seated at the far end of the bar. He called over the bartender and told her he did not think it was appropriate for a child to be seated at the bar.
[3] The waitress was Jessica Purdie (now Sawicki) (“Jessica”). She told Atkinson that the child was her daughter and the man beside her was the child’s father and Jessica’s husband, a police officer. Jessica pointed to the words “restaurant and bar” on a Plaice menu and told Atkinson if he did not like it, they were free to leave. Jessica then walked away. Atkinson continued to complain loudly about a child seated at the bar.
[4] Matters escalated. Ultimately, Jessica’s husband, defendant Geoffrey Purdie (“Purdie”), an off-duty police officer with the Niagara Regional Police Service, arrested both Atkinson and Wesley for causing a disturbance and trespass (for failing to leave the Plaice when asked).
[5] Atkinson asserts that he was assaulted and wrongfully arrested by Purdie inside the Plaice. After exiting the Plaice, Atkinson claims that Purdie, and two uniformed officers sent in response to Purdie’s request for assistance, joined in beating Atkinson.
[6] Atkinson acknowledges that the physical injuries he alleges to have suffered resolved within weeks. Atkinson’s damages principally relate to the exacerbation of his existing PTSD.
[7] The defendants deny that Atkinson was assaulted or wrongfully arrested. They say that Atkinson’s behaviour inside the Plaice justified the charges and his arrest. They also say that Atkinson resisted arrest and that any force employed during the arrest was reasonable and authorized by law.
[8] With respect to damages, the defendants assert that any exacerbation of Atkinson’s pre-existing PTSD was unrelated to the events.
[9] As explained below, I dismiss Atkinson’s claim in its entirety.
Atkinson’s Physical and Psychological Condition
[10] Atkinson identifies himself as disabled and devoted much trial time to describing his physical and psychological conditions. Atkinson’s identified physical disabilities include restricted flexibility in his arms and a disfigured right hand. His principal psychological disability is his PTSD. Atkinson asserts that these disabilities were apparent and ought to have been taken into consideration by the defendants throughout the events of February 4, 2012.
[11] Atkinson testified that he also has a congenital deformity that limits his ability to fully flex his arms flat. Although he has had surgery to correct this condition, Atkinson demonstrated in court that he is unable to outstretch his arms fully flat.
[12] Atkinson’s hand disfigurement was a result of a work accident in 1992. He lost the outer two fingers of his right hand and was left with limited functioning of his thumb and remaining fingers of his right hand. However, the most significant aspect of Atkinson’s work injury was the resulting PTSD. Because of the PTSD, Atkinson was unsuccessful in his attempt to return to work. He last worked in November 1997. Since the work accident, Atkinson has seen a psychiatrist, for his PTSD and other issues.
[13] Atkinson denies that he was resisting arrest and says that he was simply unable to comply with the request to put his arms behind his back, because of the lack of flexibility in his arms. Atkinson says that he also has other modest mobility limitations that contributed to his fall inside the Plaice and, to some degree, explains his stiff gait outside the Plaice.
[14] Atkinson’s evidence concerning his PTSD is relevant to Atkinson’s claim for damages: he asserts that his alleged wrongful arrest and rough treatment during the arrest exacerbated his PTSD which had been under control prior to February 4, 2012 and remains symptomatic.
[15] Each of the defendants and the defence witnesses testified that he or she had not observed, nor was aware of, Atkinson’s physical limitation or his PTSD. I accept that evidence.
The Facts
[16] The Plaice is divided into two sides: a right side with a bar with stools and a few tables; and a left side with a dining room. Food is served on both sides, including at the bar.
[17] The Plaice had few customers when Atkinson and Wesley entered at around 5:15 or 5:30 p.m. on Sunday, February 4, 2012. Atkinson and Wesley were served beer by Jessica. Atkinson acknowledges that thereafter, in a loud voice, he began to complain about the presence of a child seated at the bar. Jessica told Atkinson and Wesley that: i.) the Plaice is a bar and restaurant; ii) the child was her daughter and the man next to the child was Jessica’s husband and a police officer; and iii) if they did not like it, they could leave. Atkinson responded that in the 1970’s and 1980’s, every bar had a “women with escorts” entrance and a ladies' side of the bar. Atkinson and Wes described Jessica as “snarky” or “snippy”. Atkinson commented to Jessica that if he spoke to a customer the same way she had spoken to him, he would be fired.
[18] Jessica testified that because Atkinson was becoming louder, she asked her co-worker, Nicole Shaddock (“Nicole”), to take over serving Atkinson and Wesley, hoping she could de-escalate the situation.
[19] Nicole testified that when she went over to serve Atkinson, he said that he did not “f-ing” want her but wanted Jessica to serve him. Nicole told Atkinson to leave. He responded that she did not have the right to tell him to leave.
[20] Jessica testified that after Nicole had gone to serve Atkinson, he became louder, repeating that children ought not to be in the bar. Jessica told Atkinson it was time to leave. She recalls asking Wesley and Atkinson to leave about four times. There was no manager on duty, so it was up to her and the other servers to deal with customers.
[21] Jessica testified that she wanted Atkinson to leave because she was becoming fearful of his behaviour, and because he was disrupting other patrons, including a family with a young child who moved to a different table. Jessica testified that Atkinson said that he was not going “f-ing anywhere”.
[22] Jessica says that she heard Wesley tell Atkinson to “knock it off”. Jessica and Wesley both testified that Wesley kept apologizing to Jessica. Wesley testified that he was apologizing because he did not think these events needed to take place. Given the circumstances, it is reasonable to conclude, which I do, that, Wesley, a regular Plaice customer, was apologizing to Jessica for Atkinson’s behaviour.
[23] Jessica turned to Purdie for help with Atkinson. Purdie suggested that Jessica ask Atkinson again to leave. She did. Nicole testified that she had also asked Atkinson to leave. In his statement to Cst. Mair on February 4, 2012, Atkinson acknowledged, and Wesley agreed, that they were asked to leave. The witnesses’ testimony leads to the inescapable conclusion that Atkinson’s loud and rude comments were disturbing customers, alarming the servers, and that Atkinson was asked to leave numerous times.
[24] Atkinson did not leave but continued to speak loudly, using profane language. Concerned, Jessica moved her daughter to the kitchen and returned to the bar.
[25] The witnesses do not agree on exactly what happened next.
[26] All witnesses agree that at some point during the course of Atkinson’s verbal tirades to the restaurant staff, Purdie got up off his stool and walked to where Atkinson and Wesley were seated at the other end of the bar. Atkinson got up from his stool and walked toward Purdie. Purdie asked Atkinson if he had a problem and Atkinson responded that he did not think it appropriate for a child to be sitting at the bar.
[27] On cross-examination, Atkinson said that when Purdie came to their end of the bar, Wesley asked Purdie who he was. In a statement Wesley prepared in February 2012, Wesley said that Purdie pulled out his badge, identified that he was a police officer, and said that he would arrest them if they did not leave. There is no doubt that by this time, both Atkinson and Wesley knew that Purdie was a police officer.
[28] Wesley says that Atkinson and Purdie were standing “chest to chest” but that it was Purdie who was the aggressor.
[29] On cross-examination, Atkinson said when he stood up, he said to Purdie: “Who are you, the bouncer?” Atkinson said he was “totally intimidated and scared to death”.
[30] It is difficult to reconcile Atkinson’s evidence that he was intimidated, with his evidence about what he said to Purdie.
[31] Atkinson testified that Purdie insisted that he pay his bill before leaving so he stood up so that he could go to the bank machine and withdraw money. Atkinson stated that Purdie blocked his way to the ATM. Wesley and Atkinson assert that Purdie then assaulted Atkinson: Atkinson testified that Purdie pushed Atkinson on the chin causing him to fall against the barstool and then to the floor, where he hit his head. Wesley said that Purdie “struck” his father in the chin, causing Atkinson to fall backward over a barstool.
[32] Both Atkinson and Wesley deny that Atkinson touched or pushed Purdie and claim that it was Purdie’s push that caused Atkinson to fall.
[33] It is difficult to reconcile Atkinson’s evidence that Purdie insisted that Atkinson and Wesley pay their bill before leaving, and that Purdie then blocked Atkinson from getting to the ATM. I accept Purdie’s evidence that he remained standing at the bar and that there was space for Atkinson to walk around Purdie to get to the ATM.
[34] Purdie’s recollection of events differs from those of Wesley and Atkinson. Purdie testified that when he walked down the bar toward Wesley and Atkinson, he identified himself as a police officer. He told Wesley and Atkinson that they had been asked to leave by agents of the bar and that they should leave. Purdie stated that Atkinson and Wesley remained seated and that Atkinson asked: “What are you going to do, shoot me?”
[35] Purdie states that he told Atkinson and Wesley that if they did not leave, they would be arrested under the Trespass to Property Act and for disturbing other patrons. Purdie said that Atkinson then got up and stood “chest to chest” with Purdie. Purdie said he considered it “an officer safety issue” and so he placed his finger on Atkinson’s sternum. According to Purdie Atkinson then stepped back, looked both ways, and flopped onto the floor.
[36] Purdie’s version of how Atkinson fell is corroborated by Nicole. She testified that Purdie placed a finger under Atkinson’s chin, and that Atkinson then fell “theatrically” to the ground. Each of Purdie, Nicole and Jessica testified that Purdie applied virtually no force to Atkinson.
[37] Jessica testified that when Purdie showed his badge, Atkinson called him “one of Ft. Erie’s finest” and called Purdie a “f-ing a-hole”; Atkinson’s face was red, he was swearing and angry. Jessica said that Atkinson “got in Purdie’s face” and that they were almost nose to nose.
[38] When Atkinson got up after falling, Wesley began yelling at Purdie called him an asshole and also used the “F” word.
[39] Purdie stated that when he told Atkinson and Wesley that they were under arrest he telephoned his Staff Sgt. to advise that there were two people causing a disturbance and to request the assistance of uniformed officers. Atkinson acknowledges that Purdie did tell both Atkinson and Wesley that they were under arrest.
[40] By the time Atkinson, Wesley and Purdie exited the Plaice, a first uniformed officer was arriving. A second uniformed officer arrived moments later. Both were responding to Purdie’s call for assistance.
[41] One more witness gave evidence about the tail-end of the events inside the Plaice: John Cameron. He was called on behalf of the defendants. Mr. Cameron stated that he had no connection to any of the parties and that he was at the Plaice on the evening of February 4, 2012 to have dinner with his wife, young daughter (four years old) and his parents-in-law.
[42] Mr. Cameron provided a statement on February 4, 2012. In it, Mr. Cameron says that he and his family were eating dinner when there was a loud ruckus at the other side of the Plaice. He turned to look and described Atkinson as “an old guy doing the yelling. He was a white male with grey hair and he was chubby. I think he had curly hair and a goatee. He was loud, belligerent and he was swearing.”
[43] In his statement, Mr. Cameron says that one man, who he later found out was a police officer, was like “pay your bill and go.” “The old guy got totally belligerent to the point that I was about to go over and say ‘look, I’m with my daughter who’s scared.’ My wife took my daughter down to the other part of the restaurant. I decided not to go over because I thought that may make it worse.”
[44] Mr. Cameron’s statement further reads:
The old guy was yelling “so you’re Fort Erie finest, you’re the best Fort Erie’s got,” with f-bombs everywhere and some other insults. ... He got into the cop’s face, about an inch away so his gut must have been hitting him. The cop asked him to move back at least twice, the cop put a bent finger on him. He didn’t push him or shove him. The man moved back about eight inches and then all of a sudden, the guy fell down like a soccer player. The cop wasn’t even touching him at that point. I saw what had happened, so I told the girl in case the cop needed a witness. I don’t normally put my nose in it but this was over the top. The cop didn’t do anything wrong, in fact he stayed pretty calm. He didn’t raise his voice.
[45] Mr. Cameron’s trial evidence was consistent with his 2012 statement. His description of how Atkinson fell is consistent with that given by Nicole and Purdie. Mr. Cameron further testified that Atkinson kept saying to Purdie “I’m going to charge you; you can’t do this to me.”
[46] Mr. Cameron testified that he thought the officer [Purdie] did nothing wrong. In cross-examination, Mr. Cameron acknowledged that he had not heard conversation or statements between Atkinson and Jessica and only heard Purdie say: “Just pay your bill and go.” He did not know what had upset Atkinson or caused him to raise his voice and swear.
Assessment of the Evidence
[47] The events that are the subject of this action occurred more than seven years prior to trial. It is to be expected that no one will have a perfect memory of events. Moreover, given the nature of the events, it is to be expected that each witness will recall things differently. Finally, the plaintiff and his son are related and one of the defendants was married to one of the witnesses. Therefore, the court is alive to the potential for bias in how these parties remember and interpret the events.
[48] In his statement of February 21, 2012, Purdie noted that when he produced his badge to Atkinson, he asked if Purdie was “…gonna to shoot him.” None of the other witnesses heard those words. Although I do not reject this evidence, I do not need to rely on it, as the other, corroborated, evidence allows me to conclude, which I do, that Atkinson was the protagonist and the instigator of the events that unfolded: having been asked to leave because of his loud, rude and profane language, Atkinson refused, challenging the servers’ and Purdie’s authority to ask him to make that request. Atkinson got off his stool, and confronted Purdie, who had identified himself as a police officer, by standing chest to chest with him.
[49] I find as a fact that almost as soon as he sat down at the bar, Atkinson began to complain about the child seated at the bar and proceeded to loudly voice his views about unescorted women and children in bars. Atkinson was loud, used profanity, and disrupted other patrons, including a family with a young child, who were at the Plaice for an early family Sunday meal.
[50] Whether it was appropriate or legal for a child to eat her meal at the bar is irrelevant. What is relevant is how Atkinson’s chose to express his views on the matter and the effect of his behaviour on the others present at the Plaice.
[51] Even Wesley asked Atkinson to “knock it off”. He did not. Atkinson caused matters to escalate to the point at which Purdie saw no alternative but to place Atkinson and Wesley under arrest and to call for assistance from uniformed officers.
[52] I find as a fact that Purdie determined that there were grounds to charge and arrest Wesley and Atkinson and that they were arrested inside the Plaice.
[53] Atkinson asks this court to find that Purdie is not a credible witness because he acquired a criminal record after these events and was engaged in criminal activity prior to February 4, 2012. I do not accept that submission.
[54] Sometime after the events that are the subject of this claim, Purdie was found guilty of conspiracy to import steroids and served jail time in the United States. Purdie was also involved in a cheese-smuggling enterprise that led to the conviction of a fellow officer, uninvolved in these events. Purdie’s criminal conviction ended his career as a police officer.
[55] Where I have accepted Purdie’s version of events in preference to the evidence given by Atkinson and/or Wesley, I have done so having considered the evidence given by all the witnesses, including Atkinson and Wesley.
[56] Atkinson also asks this court to discount the credibility of the evidence given by Jessica. He suggests that because she accompanied Purdie, her then husband, on a trip to the United States to buy cheese, which may have been illegally imported into Canada, Jessica’s testimony cannot be trusted; if Jessica was willing to lie for Purdie when they were married, she would still do so now.
[57] I do not accept Atkinson’s arguments.
[58] As at the date of this trial, Jessica and Purdie are long-divorced and she has remarried. Jessica has no known stake in the outcome of this action. Moreover, in assessing Jessica’s credibility and reliability, I have considered all the evidence – both corroborating and conflicting. Indeed, in making my factual findings about what happened inside the Plaice, I have considered all the evidence.
Admissions and Convictions
[59] On May 27, 2013, Wesley and Atkinson were convicted of failing to leave premises when directed contrary to section 2 (1) (b) of the Trespass to Property Act. The defendants submit that this conviction should be considered conclusive evidence that Atkinson did, in fact, refuse to leave the Plaice when asked, as well as evidence of Atkinson’s lack of honesty at trial.
[60] At trial, Atkinson testified that the trespass charge had been dropped and that he had “attended court but I didn’t agree to the trespass”[^1]. In fact, as evidenced from the transcript of the proceedings on May 27, 2013 before Justice of the Peace D. Lacaprara,[^2] Atkinson failed to attend the hearing, which proceeded in his absence. He was deemed not to dispute the trespass charge, convicted and fined $50. Atkinson took no steps to set aside or appeal this conviction.
[61] As I have already concluded that the evidence at trial establishes that Atkinson knew he had been asked to leave the Plaice and refused to do so, I do not need to rely upon this conviction. However, I do conclude that Atkinson was not truthful at trial concerning this issue. This undermined his credibility.
[62] Atkinson testified that the criminal charges of causing a disturbance by shouting in a public place were also dropped. While accurate, that testimony does not tell the whole story. The transcript of the proceedings before Justice D. T. Vyse on June 12, 2012 was filed at trial. It records that Atkinson and Wesley appeared in court and had been assisted by duty counsel. The Crown submitted that it would accept a Peace Bond from Atkinson and Wesley in return for which the charges would be withdrawn. Atkinson and Wesley agreed to enter into a Peace Bond, which required them to have no contact or communication with Purdie or Jessica and not to attend the Plaice.
[63] The defendants ask this court to rely on these criminal proceedings as proof that Atkinson did, in fact, cause a disturbance. While I do find the Peace Bond to be evidence of Atkinson’s acknowledgement that he disturbed the peace contrary to the Criminal Code, in light of my factual findings and legal conclusion set out in these reasons, I do not need to rely on that evidence. I note that the preamble to Atkinson’s Peace Bond[^3] includes the following paragraphs 3 and 4 (underlining added):
AND WHEREAS the Respondent, having acknowledged sufficient of the allegations[^4], consents to such an order and waives the hearing of further evidence herein and concedes the probable grounds exist for the granting of the order sought;
AND WHEREAS the Court has probable grounds to suspect future misbehaviour by the Respondent likely to give rise to breaches of the Queen’s Peace:
[64] Overall, I did not find Atkinson to be a credible or reliable witness. He exaggerated when describing the actions of others and overlooked or attempted to explain away his role in the events of February 4, 2012.
[65] To the extent of his observations, I found Mr. Cameron’s evidence to be compelling. To a significant degree, he corroborated the evidence of the other defendants and defence witnesses and contradicted the sequence of events described by Atkinson and Wesley. In particular, his observations of how and when Atkinson fell corroborates the evidence of other defence witnesses that Atkinson fell of his own accord and not because he was pushed by Purdie.
[66] The eyewitness evidence as to which of Purdie or Atkinson first contacted the other is inconclusive, leaving me unable to determine that question. For clarity, I do not accept the evidence put forth by Atkinson that Purdie pushed or struck him, causing him to fall. While Purdie acknowledges that he did touch Atkinson’s sternum with his index finger, the evidence leaves me in no doubt that Atkinson was physically confrontational toward Purdie, who had identified himself as a police officer. Therefore, when Purdie used his index finger to distance Atkinson from him, I find that Purdie was acting reasonably.
Events Outside The Plaice
[67] None of Atkinson, Wesley and Purdie agreed on which of them left the Plaice first. I accept Purdie’s version of events and his evidence that as a matter of safety and proper police protocol, he would not have exited the Plaice leaving Atkinson behind. Atkinson’s certain, yet unreliable, memory of this, and other events, was also seen in the inconsistencies between his trial evidence, his evidence on discovery, and with the statement Atkinson prepared on his own shortly after the events[^5] (the “February 6 Statement”).
Evidence of Constable Mike Breton
[68] Cst. Mike Breton (“Cst. Breton”) was the first of the uniformed officers to arrive at the Plaice. His trial testimony was consistent with his General Occurrence Report completed on February 12, 2012. Upon arrival, Cst. Breton observed Atkinson, Wesley and Purdie standing near an SUV. When he exited his police car, Cst. Breton could hear two people yelling and Purdie asking Cst. Breton to place two men under arrest. Cst. Breton handcuffed Wesley and placed him in the rear of his police vehicle without incident.
[69] Cst. Breton retrieved a second pair of handcuffs and joined Purdie who was struggling with Atkinson. Cst. Breton told Atkinson he was under arrest and tried to put him in handcuffs. He told Atkinson to stop resisting arrest. Atkinson was yelling and screaming and Cst. Breton was unable to bring Atkinson’s right hand behind his back. He told Atkinson to stop resisting arrest. Those words were also heard by Atkinson and by Wesley, although they attributed them to Purdie.
[70] Cst. Breton describes his and Purdie’s struggle with Atkinson in front of an SUV. He testified that all three of them fell and that the fall may have been because Cst. Breton wanted to bring Atkinson to the ground in order to place him in handcuffs. Cst. Breton said that Atkinson fell on his back, then rolled to his stomach and was then trying to get up and to move, to avoid being handcuffed. Cst. Breton said he did succeed in cuffing Atkinson’s left wrist, but Atkinson would not bend his arm to allow the right handcuff to be put on. Cst. Breton then heard a “thunk” sound, and Atkinson’s right hand went limp. Breton looked to his left and saw a second uniformed officer, Cst. Mair. Cst. Breton assumed that Cst. Mair had delivered a “distracting blow” to Atkinson’s head. Breton was then able to place a handcuff on Atkinson’s right hand.
[71] Cst. Breton and Purdie got Atkinson up off the ground and “pushed” him forward into Cst. Mair’s service vehicle.
Atkinson’s Evidence
[72] In the February 6 Statement, Atkinson stated that Purdie grabbed his arm and twisted it behind his back and with the other hand grabbed Atkinson’s hair and slammed his head into the roof of a parked SUV two times and then tackled Atkinson to the ground. While tackling Atkinson, Purdie punched Atkinson in the left ear three times. While on the ground, Purdie placed his knee on Atkinson’s back, placed his arms behind his back, received handcuffs from a uniformed officer and cuffed Atkinson. Purdie then told the other officer that Atkinson was resisting, and the other officer kicked Atkinson in the head and a third officer punched Atkinson in the head, later telling Atkinson that he deserved the punch for resisting.
[73] At trial, Atkinson testified that, before tackling him to the ground, Purdie punched Atkinson him three or four times in the back of the head. He also testified that Purdie punched him 8 to 10 times. Atkinson then testified that he received perhaps 12 punches from Purdie before Purdie dragged him to the ground. Atkinson attempted to explain the inconsistency between his trial evidence and the February 6 Statement (which does not mention these 10 - 12 punches) described his head being slammed twice on the basis that he was “a mess” when he prepared the February 6 Statement and left some things out of it because he was under stress at the time.
[74] At trial, Atkinson testified that Purdie was beating him for between 10 and 15 minutes. No other witness corroborates this timeframe, including Wesley, who had a view from the police cruiser. I do not accept Atkinson’s evidence on this point.
[75] Atkinson also testified that, while he was handcuffed, Cst. Mair kicked Atkinson over the eye with his boot, and that after that kick, he recalled nothing until he was placed in the police car. Atkinson asserted that he had been “knocked out” by Cst. Mair’s kick. Atkinson testified that he asked which of the officers had kicked him in the head and that Cst. Mair said that he had f-ing kicked him in the head but that if Atkinson repeated that, Cst. Mair would call him a liar. Atkinson’s trial evidence on these events also conflicts with the February 6 Statement, in which Atkinson attributes this statement to the officer who had allegedly punched him in the head.
[76] Atkinson’s reliability and credibility further suffered when he was confronted in cross-examination with prior inconsistent statements. Atkinson’s assertion at trial that he was better able in 2019 to recall events than he was in 2012, goes against common sense and cannot be believed.
[77] Atkinson’s assertion that he was not thinking straight when he prepared the February 6 Statement and for that reason omitted mention of the numerous and serious allegations made against the defendants at trial also makes no sense, given that it was prepared and delivered to the police station to document and support his complaint of ill-treatment at the hands of the defendant police officers.
[78] I also do not believe Atkinson’s trial evidence as to the beating he claims to have sustained. The photographs taken of Atkinson shortly after the events do not show injuries that one would expect to see on someone whose head had been pounded multiple times against an SUV, had been beaten for 10 to 15 minutes, punched a dozen times, kicked in the head by his eye, and punched in the face, and knocked unconscious. There is no evidence that Atkinson suffered so much as a bloody nose.
[79] The photographs are poor quality and, at most, show a small bruise near Atkinson’s eye. That bruise is consistent with the defence testimony evidence that Atkinson had to be brought to the ground for handcuffs to be secured. The photographs also showed bruising on Atkinson’s wrist, which, he acknowledged, could have been caused by the handcuffs themselves, and not from any improper conduct on the part of the defendants.
[80] Also, Atkinson offered no medical evidence to support his claim. Atkinson acknowledges that he did not go to the hospital, nor did he see a physician about his injuries, which, if believed, included being kicked unconscious.
Constable Mair
[81] Cst. Mair testified that he arrived after Cst. Breton. The first thing he noticed was Atkinson standing bent over at the waist with Cst. Breton draped over him “piggyback” style, swinging back and forth “like a ragdoll.” Cst. Mair testified that he heard Atkinson say: “Get the F off me”. He heard Purdie say: “Stop resisting” and heard Cst. Breton say: “Put your hands behind your back”.
[82] Cst. Mair testified that Atkinson was not putting his hands behind his back – they were out front. Cst. Mair grabbed one of Atkinson’s hands and, either on one or both knees, aimed his closed right at Atkinson’s “brachial” area – a spot on his neck below his ear. He missed the intended spot, but the blow that landed on Atkinson’s ear was enough to distract him, and allowed Cst. Mair to cuff Atkinson’s other hand.
[83] At that point, the situation “settled down”. Atkinson was searched for weapons or tools of escape and placed into Cst. Mair’s car. Cst. Mair explained that because they were outside a bar and they did not know who else might be inside, he told Cst. Breton to move their vehicles to a nearby empty lot in front of “Dunn the Mover”.
[84] Cst. Mair spoke with Cst. Breton, Purdie, and Atkinson and determined that charges were appropriate. Atkinson and Wesley were charged with causing a disturbance by shouting contrary to section 175 (1)(a)(i)[^6] of the Criminal Code and with an offence under the Trespass to Property Act.
[85] Cst. Mair testified that he did not see any injuries to anyone, nor did the plaintiff complain of injuries. Atkinson was then calmed down and asked Cst. Mair if children were allowed in the bar. Cst. Mair responded that it was a restaurant and children were allowed. This answer apparently upset Atkinson.
[86] Cst. Mair noted that while he was preparing his paperwork on February 4, 2012, Atkinson made the following statements[^7]:
“Can that cop assault me?
“Do you beat your mother, your kids? I bet you do you fucking ass-hole.”
“So you’re one of Fort Erie’s finest eh?”
[87] Cst. Mair noted the conversation with Atkinson that followed the above utterances:
9663[^8]: Did that cop identify himself with his badge?
Atkinson: Yeah.
9663: Were you asked to leave by the waitress?
Atkinson: Yeah.
9663: Did you leave?
Atkinson: No.
9663: Were you shouting?
Atkinson: Yeah, so was the cop, are you arresting him?
[88] I accept that Cst. Mair accurately noted the statements made by Atkinson, which are consistent with the other evidence about Atkinson’s conduct earlier that evening.
[89] After being charged and ticketed, Wesley and Atkinson were released directly from the police cars.
[90] Based on the evidence that I do accept, I conclude that it took three police officers to handcuff Atkinson, who was not co-operating and struggling against being handcuffed. I accept that the three officers succeeded in placing handcuffs on Atkinson only after Cst. Mair, delivered a distracting blow to Atkinson’s ear.
[91] I further find as a fact that none of the defendants was aware of any disability on the part of Atkinson, including Atkinson’s alleged inability to place his hands behind his back to be handcuffed. Indeed, Atkinson was able to be handcuffed.
[92] Constables Mair and Breton stated that they did not know Purdie at the time of these events. I accept that evidence. There was no evidence that either of these defendants, who have remained in the police force, had any relationship with Purdie or with any of the parties or witnesses in this proceeding that might undermine their credibility.
[93] Notwithstanding some inconsistencies, overall I accept the evidence of Csts. Breton and Mair, and of Purdie concerning the force used on Atkinson during his arrest. In particular, I accept the evidence of Cst. Mair that the “distracting blow” he used on Atkinson, was fully in keeping with his police training.
The Law
[94] I address the following issues raised by Atkinson:
- Were there reasonable and probable grounds to arrest Atkinson for
a) causing a disturbance; and
b) for trespassing?
- Did the defendants act reasonably in their arrest of Atkinson?
Issue #1a: Were there reasonable and probable grounds to arrest Atkinson for causing a disturbance?
[95] The Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241, 1990 125, provides that when an arrest is made without warrant, the police are required to have reasonable and probable grounds prior to the arrest that the offence had been committed. Further, it is not enough for the police officer to personally believe that reasonable and probable grounds for the arrest exist, it must be objectively established that those reasonable and probable grounds did exist.
[96] Police are not required to establish a prima facie case for conviction before making an arrest (Storrey, see also 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, at para 50).
[97] Applying those principles to the facts in this case, the court must assess whether Purdie, objectively and subjectively, had reasonable grounds when he placed Atkinson under arrest. Similarly, Constables Mair and Breton must also show that when they continued the arrest, reasonable and probable grounds on which to base the arrest existed both from a subjective and objective point of view.
[98] I have found as fact that Atkinson used loud and obscene language inside the Plaice, which frightened Jessica. Jessica’s daughter was also removed from where she had been eating her dinner to the kitchen of the Plaice, out of concern for the child’s safety and because of the loud and vulgar language being used by Atkinson. Atkinson’s behaviour also interfered with Mr. Cameron and his family, who were at the Plaice for a family meal. Atkinson’s behaviour caused Mr. Cameron’s family to move to a table away from Atkinson. Atkinson also interfered with Purdie’s use and enjoyment of the Plaice; he was off-duty and hoping to be able to share his and his daughter’s meal with Jessica.
[99] In defence of his use of loud and profane language, Atkinson submits that bars are places in which it is usual and acceptable for patrons to speak loudly and swear. While it may be that at certain times, Atkinson’s loud and vulgar language might not interfere with the public’s normal activities or the ordinary and customary use of the Plaice, these events took place between approximately 5:30 and 6:00 p.m. on a Sunday evening. At that time, the Plaice was an uncrowded bar/restaurant, patronized by families with young children, there to have an early dinner. In such circumstances, Atkinson’s behaviour was neither usual nor acceptable. Moreover, Atkinson went beyond speaking and swearing in a loud voice. Atkinson actively confronted Purdie: he got off his bar stool to stand “chest to chest” with a person who had identified himself as a police officer. That escalated behaviour added to the fear and concern in the servers and other diners.
[100] The Supreme Court of Canada in R. v. Lohnes, 1992 112 (SCC), [1992] 1 SCR 167 explains that section 175 of the Criminal Code is a two-element offence consisting of: 1. the commission of one of the enumerated acts – fighting, screaming, shouting, swearing, etc. and which 2. causes a disturbance in or near a public place.
[101] A disturbance must be more than a mere mental or emotional “annoyance or disruption” (Lohnes, at para 20) but must constitute “interference with an ordinary and customary conduct or use” (Lohnes, at para 21) or “disorder and agitation which interferes with the ordinary use of a place” (Lohnes, at para 23).
[102] As stated by the court in R v. Kukemueller, [2014] O.J. No. 1862 (ONCA), to satisfy the second element of the offence of causing a disturbance, the conduct must interfere “with the public’s normal activities or with the ordinary and customary use by the public of the place in question”.
[103] Applying the above principles to the facts as I have found them, I conclude that the defendants have met their onus of showing that Purdie had objectively and subjectively reasonable grounds to place Atkinson under arrest for causing a disturbance.
[104] The testimony from Constables Mair and Breton, which I have accepted, is that they were dispatched to the Plaice in response to a call placed by Purdie. When they arrived at the Plaice, they witnessed a fellow, albeit off-duty, officer engaged in a physical struggle with Atkinson and Wesley. At that time, Purdie confirmed his request for assistance in completing the arrests.
[105] I found as a fact that Atkinson did not cooperate or comply with the requests of one or all of the officers and resisted arrest. Atkinson’s behaviour as observed by Constables Mair and Breton was consistent with the information they had been told: that Atkinson was being arrested for causing a disturbance.
[106] I therefore conclude, on the evidence before me, that the defendants have established that Constables Mair and Breton had objectively and subjectively reasonable grounds to continue the arrest of Atkinson for causing a disturbance.
What is the effect of the withdrawal of the criminal charges?
[107] The defendants submit that despite withdrawal of the criminal charges, this court is entitled to rely upon the acknowledgement by Atkinson of the facts underlying the granting of the Peace Bond.
[108] Atkinson submits that the withdrawal of the criminal charges does not bar his claim for wrongful arrest. He relies upon Ferri v. Ontario (Attorney General), 2007 ONCA 79, [2007] O.J. No. 397 and Bagha v. Toronto (City) Police Services Board, 2018 O.J. No. 4198. In those cases, the plaintiffs argued that entering into a Peace Bond did not bar them from later pursuing a claim for malicious prosecution. The facts here are different from the cases referenced.
[109] Atkinson argues that he agreed to the facts and to the Peace Bond because he was without counsel, did not understand the implications and would have done anything to resolve the charges without further court appearances or penalties.
[110] The transcript shows that Atkinson did have the assistance of duty counsel. Therefore, I do not accept that Atkinson did not understand the implications to him of the Peace Bond, including that he had acknowledged the facts as summarized by the Crown.
[111] Based on the evidence before me surrounding the withdrawal of the criminal charges, I cannot conclude that they were resolved in favour of Atkinson. Further, in this proceeding, the defendants need not establish that Atkinson is guilty of the charge laid against him. Rather, the defendants need only show that there were objectively and subjectively reasonable grounds for Atkinson’s arrest on that charge.
[112] My findings of fact based on the trial evidence alone, are sufficient to establish that objectively and subjectively reasonable and probable grounds for the arrest did exist.
Issue #1b: Were there reasonable and probable grounds to arrest Atkinson for trespassing?
[113] I do not wish to otherwise repeat the evidence, or my findings of facts related to this issue except to note that in his statement to Cst. Mair, Atkinson acknowledges that he was asked to leave by the Plaice staff and he refused to do so.
[114] Atkinson submits that he was not given a proper opportunity to leave. The evidence does not support that submission.
[115] Again, I do not intend to repeat my earlier findings except to note that there is ample evidence that Atkinson challenged anyone’s authority to ask him to leave, including Purdie’s authority, despite that he had produced his police badge.
Issue #2: Did the defendants act reasonably in their arrest of Atkinson?
[116] Perhaps the most important issue raised by Atkinson is whether the force used to it arrest him was reasonable.
[117] The defendants acknowledged that force was used on Atkinson. Section 25 of the Criminal Code permits an authorized person to use as much force as is necessary to enforce the law. Placing a person in handcuffs is within the police officer’s right to effect arrest. (Leclair v. Ottawa Police Services Board, 2012 ONSC 1729 at paras 62, 63).
[118] If a person is being placed under arrest they are to follow the reasonable instructions of the police (Leclair, at para 67).
[119] The use of force is to be judged on a subjective-objective basis, but police actions should not be judged against the standard of perfection. In determining whether the amount of force use was necessary, the court must consider the circumstances as they existed at the time the force was used (Toronto Police Services Board v. Puricelli, 2014 ONSC 6861, at para. 19, quoting from R. v. Nasogluak, [2010] 1 SCR 2006 (SCC)).
[120] The defendants concede that if the court found that any of the defendants bashed Atkinson’s head against an SUV, such force would be unreasonable. As set out above, I do not accept the evidence of Atkinson that he was assaulted and beaten. I do accept that there was a degree of force used upon Atkinson outside the Plaice. However, I have also accepted the evidence of the defendants as to why that force was used.
[121] None of the defence evidence supports Atkinson’s contention that the defendants acted maliciously toward him or assaulted him. Moreover, the observations of Mr. Cameron were that, in the face of Atkinson’s loud and profane comments, directed at Purdie, Purdie remained calm throughout his dealings with Atkinson.
[122] All the evidence, including Wesley’s, is that Wesley’s arrest was peaceful and uneventful: Wesley complied with the reasonable requests made of him by the officers involved. He was handcuffed and placed in the police cruiser. The same would likely have occurred, had Atkinson followed Wesley’s example.
[123] As noted earlier, much of Atkinson’s evidence was focused upon his disabilities, both physical and psychological. As noted above, I accept the evidence of the defendants that none of them were aware of Atkinson’s disabilities. Therefore, I do not find that the defendants failed to consider Atkinson’s disabilities in their exercise of force in securing his arrest. Atkinson did not disclose any disability, including any inability to bend his arms to allow handcuffs to be placed.
[124] At my request, the parties provided me with the outlines of their closing submissions. In theirs, the defendants have referenced Albanese v. Franklin, 2016 ONSC 6479, affd., 2018 ONCA 431. Among other things, Albanese dealt with section 495 (3) of the Criminal Code. That issue was not raised by Atkinson and I do not address it here.
[125] Albanese does provide a comprehensive and helpful summary of the legal framework that applies in claims like that brought by Atkinson. I paraphrase and adopt Whitten J.’s comments at paragraph 97 of Albanese that the execution of the duties of a police officer may require the containment of the liberties of a citizen and that we should not be quick to criticize decisions made in exigent circumstances as there is a contextual reality at work in the execution of these duty duties that cannot be ignored.
[126] I conclude that the force used by the defendants was reasonable, proper and necessary to carry out their duties (Cluett v. The Queen, 1985 52 (SCC), [1985] 2 SCR 216, at 222). I conclude that Atkinson has failed to meet the onus upon him to show that excessive force was used (Puricelli, at para. 40).
[127] On the issue of damages, I find that, if Atkinson suffered any injuries, including any psychological injuries, because of the events of February 4, 2012, they were entirely caused by his own behaviour, beginning from the moment he entered the Plaice and ending with his release following his arrest.
[128] In view of the foregoing findings, the defendants bear no liability for any damages allegedly suffered by Atkinson, including any exacerbation of his PTSD that may have followed the events of February 4, 2012.
Disposition
[129] For the reasons set out above, Atkinson’s action is dismissed in its entirety.
Costs
[130] If the parties cannot agree on costs, counsel may contact the Trial Coordinator's office at St. Catharines within 21 days to arrange a hearing date before me. I will require bills of costs and copies of all offers of settlement. If an appointment to argue the issue of costs is not sought from the office of the trial coordinator within 21 days, the parties will be deemed to have settled the issue of costs as between themselves.
_____________________________L. SHEARD J.
Released: August 26, 2019
COURT FILE NO.: 7471/13
DATE: 2019-08-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Roy Atkinson
Plaintiff
- and -
Niagara Regional Police Service, Regional Municipality of Niagara Police Services Board, Cst. Mike Breton, Cst. Bruce Mair and Cst. Geoffrey Purdie
Defendants
REASONS FOR JUDGMENT
LCS:co
Released: August 26, 2019
[^1]: Atkinson's evidence on April 1, 2019, trial transcript at page 57. [^2]: Trial Exhibit #19. [^3]: Trial Exhibit #A-8. [^4]: The transcript of the proceedings before Justice D.T. Vyse on June 12, 2012, marked at trial as Exhibit #15, documents the facts as summarized by the Crown that: Atkinson was asked to leave the Plaice; parents removed their children from the immediate area; an off-duty police officer told Atkinson and Wesley to quiet down and leave after paying their bill; there was swearing involving both Atkinsons [Atkinson and Wesley];uniformed officers were called; Atkinson and Wesley were removed from the Plaice; and uniformed officers continued their arrest. [^5]: Trial Exhibit #2, Tab 8. Atkinson prepared this statement on his own, with the assistance of his stepdaughter, which he later filed with the Fort Erie Niagara Regional Police. [^6]: Trial Exhibit #1-A. [^7]: Trial Exhibit #A-1, General Occurrence Hardcopy. [^8]: This number identifies Cst. Mair in the General Occurrence Hardcopy.