Court File and Parties

COURT FILE NO.: 6177/12 A1 (Welland) DATE: 2024/07/30 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JANICE CAMPBELL and EDWARD TURASZ Plaintiffs – and – NIAGARA REGIONAL POLICE SERVICE, REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD, PATRICK SANDEL, MICHAEL CLARK, BRIAN ESSERY, EMPLOYEES OF THE NIAGARA REGIONAL POLICE SERVICE Defendants – and – WILLIAM BROCK CAMPBELL Third Party

Counsel: Margaret A. Hoy, Counsel for the Plaintiffs Mickey Cruikshank, Counsel for the Defendants Luigi De Lisio, Counsel for the Third Party

HEARD: November 14, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 and 30, 2023

GIBSON J.

REASONS FOR DECISION

Overview

[1] On February 23, 2011, police officers from the Niagara Regional Police Service (“NRPS”) burst into the home of the Plaintiffs, Janice Campbell and Edward Turasz, at 53 Riceland Avenue, Fort Erie, Ontario. The police were executing a search warrant concerning Ms. Campbell’s son, William Brock Campbell (“Brock”), who was living in the downstairs portion of the home. The police had received information from a confidential informant that Brock was dealing drugs from the premises, and that he might be in possession of a firearm (a sawed-off shotgun).

[2] The police conducted a rapid dynamic entry into the home. Brock was downstairs. Ms. Campbell and Mr. Turasz were detained in the upstairs living room of the house while the police conducted the search. After some time, they were released from investigative detention and the police left the house. Brock Campbell was arrested and taken away by the police within five minutes. He was subsequently charged with offences relating to drugs found in the home during the search. He plead guilty to and was convicted of those offences.

The Positions of the Parties

[3] The Plaintiffs claim that they both subsequently developed psychological injuries arising from their interactions with the police on that day, and that this has had a significant, persistent and deleterious effect on their lives.

[4] Ms. Campbell says that she developed Post Traumatic Stress Disorder (“PTSD”) as a consequence of her interactions with the police on February 23, 2011.

[5] The Plaintiffs allege that the search of the house at 53 Riceland was conducted in an unreasonable manner, and that they were mistreated by the police. They now sue the institutional Defendant, the Regional Municipality of Niagara Police Services Board (“the Board”), which is the employer of the named police officers, and the individual named police officer Defendants, seeking general, special and punitive damages in the amount of $250,000 for negligence, assault, and breach of their rights under the Canadian Charter of Rights and Freedoms (“Charter”).

[6] The Plaintiffs submit that the police should have known that Brock resided in the lower portion of the house at 53 Riceland, and that they did not need to obtain a search warrant for the entire premises. They assert that the police caused significant damage to their house. They submit that the police exceeded their authority to detain Ms. Campbell and Mr. Turasz. They assert that it was not required to make them go prone initially, and they claim that they were required to remain prone for an extended period, some 15 minutes. Mr. Turasz asserts that one police officer put his rifle to his head, causing him an injury, and threatened to use the weapon if he moved. He also asserts that one police officer told him to be grateful that they were not handcuffed in the back of a police cruiser, and that they were not permitted to go to the bathroom for an extended period. The Plaintiffs assert that Ms. Campbell was in medical distress from a heart problem, and that the police ignored their expressions of concern regarding this. (After the incident, Ms. Campbell was taken to a hospital by her daughter Janice Campbell). They assert that Mr. Turasz subsequently suffered from an acute stress disorder, and that Ms. Campbell developed PTSD as a result of the incident.

[7] The Defendants resist the claim. They say that the police conducted the search on reasonable grounds, that it was carried out in an appropriate manner, and that some of the incidents alleged by the Plaintiffs did not happen. The Defendants also contest whether the Plaintiffs have suffered the subsequent ill-effects that they claim. The Defendants request that the action be dismissed.

[8] Brock Campbell has been named as a Third Party in the action. He submits that it was not foreseeable that a police tactical team would execute a search warrant at the home in the prevailing circumstances, and denies liability.

The trial

[9] All of the parties were represented by counsel at the trial. Brock Campbell attended the trial virtually as he is currently incarcerated at the Joyceville Institution.

[10] The Court heard from 16 witnesses during the course of the trial. Witnesses for the Plaintiffs included: the Plaintiffs, Janice Campbell and Edward Turasz themselves; Jackie Denham, a friend of Ms. Campbell and the real estate agent who sold them the house; Katie Campbell, the daughter of Janice Campbell; Dr. R.J. Kamatovic, the family physician of Janice Campbell; and, Dr. Robert Hines, as psychiatrist who was called to give expert opinion evidence.

[11] Witnesses called by the Defendants included eight police officers who were present at the search at 53 Riceland on February 23, 2011: Staff Sergeant Brian Essery; Sergeant Patrick Sandel; Sergeant Matt Whiteley; Constable Gary Weinhandl; Sergeant Ernesto Cupiraggi; Sergeant John Garner; Sergeant Erin Madill; and Staff Sergeant Michael Clark. (These ranks refer to their present ranks with the NRPS at the time of trial; most were of more junior rank at the time of search in 2011). The Defendants also called Dr. Patricia Rosebush, a psychiatrist, to give expert opinion evidence.

[12] Brock Campbell, the son and stepson of the Plaintiffs who resided in the downstairs portion of 53 Riceland and who was the subject of the search executed by the police on February 23, 2011, gave evidence as the Third Party.

Issues

[13] The following issues arise for consideration in this case:

1. Was the execution of a search warrant by police officers of the NRPS at the house at 53 Riceland Avenue, Fort Erie, Ontario, on February 23, 2011, conducted in an improper or abusive manner?;
2. Are the Board and the individual named police officers liable in negligence, assault, or for breach of the Plaintiffs’ Charter rights?
3. Did the Plaintiffs sustain a serious, persistent, or permanent psychiatric injury arising from the police search conducted on February 23, 2011?
4. If so, do the Defendants have a claim against the Third Party, William Brock Campbell?

Evidence and Findings of Fact

Dynamic Entry

[14] The police executed a dynamic entry to the house at 53 Riceland Avenue on February 23, 2011, because they had received information from a confidential informant that Brock Campbell was dealing drugs from the house, and that a firearm might be present. The police had a particular concern arising from the fact that Brock had previously been robbed and his leg badly injured in a home invasion robbery associated with drugs, and that he might react violently to anyone suddenly presenting themselves at the home.

[15] The dynamic entry was executed by police officers serving on the Emergency Task Unit (“ETU”), the tactical unit of the NRPS. Once the house had been secured, the ETU turned control of the house over to the NRPS investigating detectives, and promptly left the premises. The role of the ETU is to resolve high risk situations, with the least amount of force possible in the circumstances. Their responsibility is to safely execute a warrant. When a firearm is potentially present, the NRPS policy was that investigating detectives should not be doing an entry without the ETU.

[16] Dynamic entry techniques utilize surprise, speed, momentum and numbers to overwhelm any resistance and quickly gain control of the situation. The overwhelming force inherent in their nature in fact operates to promote a rapid and peaceful execution of a search warrant, particularly in circumstances where drugs and firearms are thought to be potentially present.

The Plaintiff Witnesses

[17] I did not find Ms. Campbell to be a credible witness with regard to much of her testimony. It was often exaggerated and implausible. She was transparently and insistently trying to portray the layout of the house in a way that was not reasonable or realistic, so as to buttress the Plaintiffs’ position that the police should have obtained a warrant only for the downstairs portion of the house at 53 Riceland. I found the same issues with Mr. Turasz.

[18] One aspect of her testimony that particularly strains credulity is her failure to note a second set of stairs inside the house, which provided yet another means of access from the basement to the main level, and detracts from her insistence that the two levels were entirely separate spaces.

[19] Another is that, notwithstanding the presence of laundry facilities in the basement, she contends that she went to a laundromat rather than using these facilities. This was also contrary to the evidence of Mr. Turasz. This is all to avoid acknowledging that she would have been downstairs frequently.

[20] Further, there were inexplicable inconsistencies between her evidence and the photographic evidence from the police photos taken that day regarding the presence and labelling of external mailboxes and doorbells at the house.

[21] As was noted both by Doctors Kamatovic and Rosebush, Ms. Campbell was a frequent user of marijuana, and significant levels of THC were detected in her bloodwork during her presence in hospital in the aftermath of the search. As noted by Dr. Rosebush, chronic use of marijuana can be accompanied by paranoia.

The Police Witnesses

[22] The evidence of all of the police officers was largely consistent on significant details regarding the events of February 23, 2011 concerning the search of 53 Riceland. They all denied ever striking the Plaintiffs, threatening them, hitting them with the barrel of a gun, denying them use of a bathroom for an extended period, requiring them to remain prone on the floor for more than a brief initial interval, or ignoring expressions of concern about medical distress of Ms. Campbell. The police witnesses insisted that they never observed Ms. Campbell to have a bloody nose, and that if she had articulated a need for medical assistance, they would have called for it. Staff Sergeant Clark testified that he asked whether she wanted an ambulance, and she declined.

[23] I found all of the police officers to be credible witnesses, and I accept their evidence about what transpired at 53 Riceland on February 23, 2011.

[24] I do not believe that the police required the Plaintiffs to remain prone on the floor for an extended period, or that they hit them with a gun barrel, or threatened them, or ignored expressions of concern regarding medical distress.

[25] Neither the sufficiency of the Information to Obtain the search warrant, nor the validity of the warrant itself, were ever challenged by Brock Campbell in the criminal proceedings that followed his arrest subsequent to the search on February 23, 2011.

[26] No police conduct complaint was ever made by the Plaintiffs or Brock Campbell to the Office of the Independent Police Review Director (“OIPRD”).

Psychiatric opinion evidence

[27] I accept the opinion evidence of Dr. Patricia Rosebush regarding the psychiatric injuries allegedly suffered by the Plaintiffs. I prefer the evidence of Dr. Rosebush to that of Dr. Hines for several reasons. The professional qualifications of Dr. Rosebush eclipse what are the, respectfully, somewhat comparatively threadbare ones of Dr. Hines, and her interview of the Plaintiffs was more thorough. Dr. Hines had scant records to consult and was not provided with medical records regarding Ms. Campbell’s use of Lorazapam. I reject the submission of counsel for the Plaintiffs that Dr. Rosebush was biased in her preparation of the report, or biased against the Plaintiffs generally.

[28] In her report dated February 25, 2019, in response to the request for her opinion as to whether Ms. Campbell and Mr. Turasz suffered any emotional, psychological or psychiatric injury as a result of their interactions with the police on February 23, 2011, Dr. Rosebush wrote at p.22:

It goes without saying that exposure to this type of event would be a major stress for almost anyone and certainly this was Ms. Campbell’s experience. Her stress was captured most objectively by the fact she developed a Takotsubo cardiac syndrome, defined as the development of heart problems in the context of severe stress. It is, however, a transient and reversible condition and Ms. Campbell recovered fully.

It is also important to emphasize that, for Ms. Campbell, there were two major aspects to the events on February 23, 2011. They were: the arrival of the SWAT team at her home and the fact that she would almost certainly been aware that her son was, once again, in considerable legal trouble with all the attendant consequences.

[29] At p. 23 of her report, Dr. Rosebush opined:

In my opinion, Ms. Campbell does not currently meet criteria for PTSD, or any other major psychiatric illness and I also do not believe she developed PTSD in response to the presence of the SWAT team at her home on February 23, 2011.

[30] At p. 23 - 25, Dr. Rosebush stated:

It was my very distinct impression that Ms. Campbell has, consciously or unconsciously, shifted all the blame for her stress and psychological symptoms, subsequent to the events of February 23, 2011 onto the police and the SWAT team and away from her responsibility to ensure her son was abiding by his parole requirements as well as away from his addiction and serious legal problems and the fact that he was facing more time in prison as a result of the events on February 23, 2011. In this respect, I feel, there is disproportionality in her attribution of the cause of any distress she may have experienced. It is, of course, understandable that she would develop a narrative that protects her perception of herself and her son and allows her to stay connected with him in a supportive manner. This narrative is most strikingly captured in her statements that she does not blame herself or her son, but blames the police; her view of her son as suffering from a mental illness and her statement-when I asked if she had any concerns about providing surety for him-that she did not because she “raised him with respect.”

Although Ms. Campbell endorsed certain features of PTSD in her interview with me, she presented as being very healthy and psychiatrically stable. She is not currently depressed and is able to attend to all activities of daily living.

Her buying and selling of personal vehicles, incurring significant debt and keeping it from her husband, since the index event, points to a bipolar disorder, triggered, perhaps by her use of SSRI antidepressants, prescribed prior to the index event. It is not, in my opinion, understandable in terms of what happened on February 23, 2011 even though she reports she was making these purchases “to cope” with her stress.

I have some concern that Ms. Campbell has misrepresented her history of cardiac disease (see the consultation report from Dr. J. Kelton) and depression prior to the index event.

While I found both Ms. Campbell and Mr. Turasz to be pleasant, cooperative and reasonably straightforward, I do feel that they have both developed a narrative about the event on February 23, 2011 that has resulted in a downplaying of any personal responsibility, other contributions to their reported symptomatology, a shift in ‘blame’ form their son/step-son onto the SWAT team and a misrepresentation of certain aspects of personal history.

In summary, Ms. Campbell did not, in my opinion sustain a serious, persistent or permanent psychiatric, emotional or psychological injury as a result of the events of February 23, 2011.

[31] I accept the opinion evidence of Dr. Rosebush in this regard. It is substantiated by the evidence, and accords with my own assessment of the two Plaintiffs in this matter.

[32] It is the role of the Court, not expert witnesses giving psychiatric opinion evidence, to make findings of fact in this trial. However, my findings accord with the opinions expressed by Dr. Rosebush. It may well be that the Plaintiffs have developed a narrative that excuses and minimizes their own responsibility and that of Brock, for what happened on February 23, 2011. But this narrative does not accord with the evidence at this trial, nor with probability.

Law and Analysis

[33] The reasonableness of the police actions on February 23, 2011, and what is the relevant standard for the execution of a search, is a key issue in this trial.

[34] As Cory J. stated for the Supreme Court of Canada in R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, 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. 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 before making the arrest.

[35] The standard of care of a reasonable police officer in similar circumstances should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Police officers may make minor errors or errors in judgment without breaching the standard. This standard is flexible, covers all aspects of investigatory police work, and is reinforced by the nature and importance of police investigations. To establish a cause of action for negligent police investigation, the plaintiff must show that he or she suffered compensable damage and a causal connection to a breach of the standard of care owed to him or her. Lawful pains and penalties imposed on a guilty person do not constitute compensable loss: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41.

[36] A key question is: what information did the police have at that specific time? As Thorburn J. stated at para. 61 in Wong v. Toronto Police Services Board:

The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused.

[37] As Juriansz J.A. stated in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, at paras 50 - 52:

[50] The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, at p. 251; Wong v. Toronto Police Services Board, 2009 CarswellOnt 7412 (S.C.), at para. 54; Gioris v. Toronto Police Services Board, 2012 ONSC 6396, 2012 CarswellOnt 15071, at paras. 68-70. As explained by Thorburn J. in Wong, at para. 61:

The determination as to whether reasonable grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest and not based upon what the officer or anyone else learned later. Reasonable grounds still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused.

[51] The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Hill, at para. 50.

[52] Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244, [2012] O.J. No. 2529, at para. 16; Wong, at para. 59.

[38] As was stated by O’Marra J. in Kellman v. Iverson, 2012 ONSC 3244:

[17] The onus on the plaintiff is to demonstrate that the facts known to the officer pointed so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt: Cellini v. Ontario (Attorney General) [2000] O.J. No. 180 (S.C.J.):

[23] For a claim for negligent investigation to succeed it must be established that the negligence caused the charges to be laid in circumstances where reasonable and probable grounds did not exist. Failure by the plaintiff to establish absence of reasonable and probable grounds is fatal to a claim for negligent investigation.

Miguna v. Toronto Police Services Board et al., [2007] O.J. No. 512 (S.C.J.) at para. 49 rev’d on other grounds 2008 ONCA 799, [2008] O.J. No. 4784.

Wiche v. Ontario [2001] O.J. No. 1850 (S.C.J.) at para. 17.

[39] Investigations do not have to be a paragon of perfection. Reasonable and probable grounds require 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 ordinary and cautious person, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed: per Lamer CJC in Nelles v. Ontario, (1989), 60 D.L.R. (4th) 609 (S.C.C).

[40] The onus is on a plaintiff to prove a breach of Charter rights: Vancouver (City) v. Ward, 2010 SCC 27.

[41] In this case, the Plaintiffs bear the onus of proof. They did not call an expert on the standard of care.

[42] The police action on February 23, 2011, was within the scope of their duties, having regard to the circumstances and to their knowledge at the time, the latitude afforded to police officers in the manner in which they chose to enter to execute the search, and in light of all the surrounding circumstances. The police in this case had reasonable grounds to be concerned about the possibility of harm to themselves or to the occupants, and about the potential destruction of evidence. As noted by Trotter J.A. in R. v. Pileggi, 2021 ONCA 4, at para. 34, “the all too typical toxic combination of drugs and guns is well known to the police and the courts”. The actions of the police were reasonable in the circumstances, and did not fall short of the applicable standard.

[43] Cocaine and marijuana were found at 53 Riceland Road on February 23, 2011 as a result of the search. Brock Campbell was charged with possession for the purpose of trafficking of cannabis, and possession of a scheduled substance (cocaine). On March 25, 2011, Brock Campbell pled guilty to these charges. No appeal was made in respect of these convictions. From the first entry of the police on February 23, 2011, to the time Brock was taken from the residence was approximately five minutes. Had Brock Campbell not been living there, no police search warrant would have been executed at 53 Riceland.

[44] At the time of the execution of the search warrant on February 23, 2011, Brock Campbell was under “house arrest” pursuant to a conditional sentence arising from his conviction on April 1, 2010, for trafficking in OxyContin. His mother Janice Campbell was acting as his surety.

[45] Brock Campbell has an extensive criminal record for drug offences over the years. After the events that were the subject matter of the present trial, Brock Campbell has been convicted multiple times of possession of Schedule I drugs for the purpose of trafficking, and sentenced to penitentiary sentences. At the time of the present trial, Brock Campbell was incarcerated at the Joyceville Institution and attended the trial virtually.

[46] In this case, the Plaintiffs have the onus of proof both with regard to liability and damages. They have fallen short on both.

[47] Contrary to the evidence of the Plaintiffs, the house did not “look like a disaster” following the dynamic entry and search. There were two damaged windows. There was no damage to the door and no damage to the floor. Mr. Turasz did not keep receipts to substantiate his claims about costs to repair the damage.

[48] The Plaintiffs allege that the police kept them on the floor of the living room for an extended period of some 15 minutes, that one of the police officers put a gun to the head of Edward Turasz and caused him an injury, that an aggressive comment was made that they should consider themselves lucky not to be in handcuffs in the back of a police cruiser, and that the Plaintiffs’ expressions of concern about Janice Campbell’s medical condition were ignored by all of the police officers. I do not believe that any of these incidents occurred as alleged by the Plaintiffs, and I find that they did not.

[49] Moreover, the claim as plead is not reflected in the changing narrative of the Plaintiffs, which has clearly evolved over time.

[50] The Plaintiffs’ claim is without merit. The search was lawful. It was conducted on reasonable grounds, in a reasonable manner, and did not involve more force than was necessary in the circumstances of conducting a dynamic entry where the police are rightly concerned about the potential presence of a firearm, and the destruction of evidence. I reject the claims of both Plaintiffs about excessive use of force or abusive conduct by the police. The claim of negligence, assault, and breach of the Plaintiffs’ Charter rights has not been substantiated. I find that the Plaintiffs did not suffer compensable damage, or demonstrate a causal connection to a breach of the standard of care owed to them by the police.

[51] Neither of the Plaintiffs have sustained a serious, persistent or permanent psychiatric, emotional or psychological injury as a result of the events of February 23, 2011. They have not proven causation. In any event, the extreme reaction of an obsessed personality is not foreseeable and is too remote to constitute causation: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114; Housser v. Niagara Regional Police, 2016 ONSC 589, at para. 44.

[52] I would answer the issues arising in this case as follows:

1. Was the execution of a search warrant by police officers of the NRPS at the house at 53 Riceland Avenue, Fort Erie, Ontario, on February 23, 2011, conducted in an improper or abusive manner? No.;
2. Are the Board and the individual named police officers liable in negligence, assault, or for Breach of the Plaintiffs’ Charter rights? No.;
3. Did either of the Plaintiffs sustain a serious, persistent or permanent psychiatric injury caused by the police search conducted on February 23, 2011? No.; and,
4. If so, do the Defendants have a claim against the Third Party, William Brock Campbell? In the circumstances, as I have found no liability and no damages have been proven against the Defendants, there is no need to consider the Third Party claim.

Order

[53] The action is dismissed.

Costs

[54] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Defendants may have 14 days from the release of this decision to provide their submissions, with a copy to the Plaintiffs and the Third Party; the Plaintiffs and the Third Party a further 14 days to respond; and the Defendants a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Defendants’ initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson J. Date: July 30, 2024

COURT FILE NO.: 6177/12 A1 (Welland) DATE: 2024/07/30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JANICE CAMPBELL and EDWARD TURASZ Plaintiffs – and – NIAGARA REGIONAL POLICE SERVICE, REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD, PATRICK SANDEL, MICHAEL CLARK, BRIAN ESSERY, EMPLOYEES OF THE NIAGARA REGIONAL POLICE SERVICE Defendants – and – WILLIAM BROCK CAMPBELL Third Party REASONS FOR DECISION M. Gibson J. Released: July 30, 2024