J.N. v. Horton, 2010 ABQB 767

Court of Queen ’ s Bench of Alberta Citation: J.N. v. Horton, 2010 ABQB 767 Date: 20101213 Docket: 0601 10321 Registry: Calgary Between: J.N. and Her Majesty the Queen In Right of Alberta Plaintiffs - and - James Horton, John Doe 1 To 3 and Jack Beaton Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] This case arises as a result of an assault by the Defendant James Horton, a Calgary Police Officer, on the Plaintiff, J. N.

For purposes of this case, J.N. will be referred to as “Nathan”. Nathan seeks damages against Horton, as well as against the Chief of Police (formerly Jack Beaton). Her Majesty the Queen also seeks damages against the Defendants for the medical expenses incurred in treating Nathan. Facts

A. The Incident [ 2 ] Shortly after midnight on September 25, 2004, Unit 1433 was called to investigate a possible break and enter in progress in the Forest Lawn area of Calgary. Unit 1433, Constables Horton and Massicotte, was a District 4 unit. A second unit, 1132, also responded. The suspected offender was one James Perkins, an individual with a history of serious violence against the police. [ 3 ] Massicotte knew a great deal about Perkins, and he testified that Perkins was well known to officers in District 4. A photo of Perkins hung on the District office wall.

As well, Perkins was notorious for a previous attempt to kill a police officer. In contrast, Horton testified that he did not know who Perkins was, or what Perkins looked like. He said he did not remember having seen a photo of Perkins. In addition, Massicotte testified that Horton was fairly new to the district. However, Horton did know enough to realize, as they approached the scene, that Perkins was dangerous. Horton testified that he and Massicotte never discussed Perkins in any way, including Perkins’ appearance, while driving to the scene.

Massicotte thinks he would have told Horton this important identity information in the circumstances but could not recall. [ 4 ] After Unit 1132 arrived at the scene, an officer from that Unit inquired as to what Perkins looked like. Unit 1132 was a District 1 unit, and would not have been familiar with Perkins. Massicotte gave a description over the radio. The description appeared in the radio communications log which was entered into evidence.

James Perkins was described as “tall, skinny, almost a brush cut and big ears.” Horton testified that he did not hear this description given over the radio by his partner to the officers in Unit 1132. [ 5 ] Unit 1132 quickly resolved the situation at the door. The individual suspected of the break and enter was simply at the wrong house, and was not Perkins. No crime had been committed. [ 6 ] The computer log and radio transmissions show that this information was available to Horton and Massicotte. However, they both testified that they were unaware of this information.

Thus, they drove to the residence believing Perkins was still involved, and that the break and enter was unresolved. [ 7 ] At the time that Horton and Massicotte arrived at the residence, Nathan was walking home from the 7-Eleven with a bag of candy in his hand. His direction of travel took him near the residence. A man on a bicycle approached Nathan, and asked for a cigarette. Nathan did not know this man and they did not speak further, but proceeded on in proximity to each other. Nathan was 5 feet 6 inches tall, and weighed 140 pounds. He had short hair with highlights.

He also had sideburns and a goatee. [ 8 ] Horton and Massicotte noticed the two men and decided to approach them, but testified that they never discussed their reasons for doing so. Massicotte dealt with the man on the bicycle, McPherson, whom Massicotte knew well as a minor drug dealer and an associate of Perkins. Massicotte testified that he wanted to find out from McPherson where Perkins was. Massicotte testified that he did not know Nathan, but knew that Nathan was not Perkins.

In contrast, Horton testified that he approached Nathan thinking he might be Perkins. [ 9 ] The evidence is contradictory as to what happened next. Nathan testified that he remembered the discussion between himself and Horton as aggressive. Nathan wanted to continue on his way and asked Horton why he could not do so, and Horton replied that he would ask the questions. Nathan did not recall whether Horton asked him for his name at any point before the strike occurred. Nathan testified that his hands were occupied the whole time with his small bag of candy, which he continued to eat.

He acknowledged that he said "fuck off pig" or "fuck you" to Horton at some point in the discussion. Initially, Nathan testified that Horton was six feet away when Nathan said this. However, he later adopted his testimony from the examination for discovery that Horton was two feet away. Nathan testified that Horton then stepped into Nathan and placed both hands on Nathan's shoulders, pushing Nathan down as Horton used his knee to strike Nathan in the groin. [ 10 ] In contrast, Horton testified that he asked Nathan who he was. Nathan replied "fuck you, pig" or "fuck you" immediately, and Horton did not react.

Rather, he asked Nathan for his name again. According to Horton, Nathan was four to five feet away at this point. Horton agreed in cross-examination that Nathan was not consenting to Horton’s detention of him. Horton testified that Nathan then stepped into Horton's face and yelled ‘Jackass', coming within a foot or two of Horton. Horton said he delivered the knee strike at that point. He testified that he felt threatened because Nathan appeared to him to be intoxicated and verbally hostile, and he believed that Nathan was James Perkins preparing to attack. He testified that he feared Nathan would grab his gun.

In cross-examination, Horton said

that Nathan had nothing in his hands prior to the strike and did not clench his hands. Horton also acknowledged that he had not directed Nathan not to move. [ 11 ] Horton's testimony at trial contradicts his testimony on examination for discovery on a key point. Horton said at the examination for discovery that Nathan had given his name prior to the knee strike. This would mean that Horton knew Nathan was not Perkins. However, at trial Horton maintained that his evidence was wrong at the examination for discovery.

This was Horton's testimony despite the fact that the trial took place approximately six years after the incident, and remarkably, Horton made almost no notes of the incident. [ 12 ] The Plaintiff introduced evidence from the examination for discovery of John Gibb, who was produced as an officer for the office of the Chief of Police of the Calgary Police Services. His evidence was that police policy held that an officer should not react with physical force when being called a name, in the absence of a physical threat to the police officer or to others.

Constable Horton was an experienced police officer who had been trained in the restraint and use of force. [ 13 ] Massicotte testified that he had limited opportunity and ability to observe, and only saw some of what occurred out of his peripheral vision. Massicotte was occupied speaking to McPherson. He testified that Horton and Nathan stood at the curb, while Massicotte and McPherson were on the roadway. Further, Massicotte stood with his car between him and the sidewalk. He heard elevated conversation, and the words "fuck off". He testified that he heard Horton say to Nathan to back off.

Massicotte said that Nathan yelled and stepped towards Horton, then Horton grabbed Nathan by the shoulders and struck him with his knee. At this point, Massicotte stopped his discussion with McPherson and told the latter to leave. Massicotte agreed with Horton that Nathan had nothing in his hands. [ 14 ] Nathan entered into evidence a prior inconsistent statement of Massicotte, arising out of his interview with Gibb, who had been acting as the Staff Sergeant of the Internal Affairs Unit, Professional Standards Section, on or about October 7, 2004.

In that document, Massicotte stated he did not hear Horton tell Nathan not to move before the knee strike. At trial, Massicotte could not remember the interview with Gibb and was unable to comment on it. [ 15 ] Accounts also differ significantly as to the immediate aftermath of the strike. Everyone agreed that Nathan fell to the ground. Nathan testified that Massicotte held him down without the use of handcuffs. Massicotte's testimony supports Nathan's version. As well, Nathan testified that he gave the officers his name verbally and was not searched or arrested.

In contrast, Horton testified that he placed Nathan in handcuffs. Then, Horton stated that he searched Nathan for weapons, and only learned his name after finding his wallet. [ 16 ] Once the officers told Nathan to get up, he testified that he could not do so because of the pain. He said he was hurt, and an officer picked him up off the ground by his arms and pulled him into a standing position. The officers told him that he could go, but he explained to them that he was hurt. The last words Nathan recalled were to the effect that he should walk away, or else.

He walked away out of their sight, then crawled. [ 17 ] Horton testified that he did not realize he had kicked Nathan in the groin. He was trained to kick in the thigh. He testified that he told Nathan he could go home, or that he could go to the drunk tank. He also testified that Nathan never indicated that he was in pain. While Horton acknowledged that Nathan had difficulties walking, Horton testified that he believed this was simply due to intoxication. Horton could not recall whether McPherson was still present at this point. Horton stated that he had not thought that McPherson and Nathan were together.

However, if McPherson had been present, Horton testified that it was not his concern whether he left a debilitated Nathan in the vicinity of a known criminal (although allegedly unknown to Horton), who was an associate of Perkins, a very violent man. [ 18 ] Massicotte also testified he did not know where the strike landed as he only saw it out of his peripheral vision. Massicotte confirmed Horton's testimony that the police training was to kick to the thigh, not the groin.

However, Massicotte testified that Nathan was in obvious physical discomfort, and that both Massicotte and Horton offered him medical assistance, which Nathan refused. Massicotte testified that he had believed Nathan and McPherson were together. Massicotte stated that he called back McPherson, who had not gone far and who agreed that he would get Nathan home safely. [ 19 ] Once the officers left, Nathan crawled from door to door seeking help. Finally, a woman saw him and called 911.

Nathan initially tried to crawl away when he heard the police coming, fearing the return of Unit 1433, but a different police unit arrived as well

as an ambulance. He was taken to the Peter Lougheed Hospital. B. Credibility and Findings of Fact [ 20 ] I do not find Constable Horton to be a credible witness. Key parts of his testimony were highly improbable and difficult to believe. I will discuss these aspects of his testimony below. As well, Horton’s testimony disagreed not only with the testimony of Nathan, but also with that of Massicotte and with other evidence on key points.

Horton’s reaction to the prior inconsistent statement from his examination for discovery suggests he was more concerned with bolstering his reasons for the use of force, than with a regard for truth. This slant appears throughout much of his testimony. [ 21 ] In contrast, I found Nathan to be a credible witness. His credibility was not seriously challenged on any point. When presented with evidence unfavourable to him, his reaction was honest and credible. I found his version of events much more probable, and corroborated by other evidence.

Nathan did remarkably well when testifying, notwithstanding that he was under the influence of OxyContin. [ 22 ] I found Massicotte to be a witness who did his best to assist the court, but who did not have a precise recollection of what happened. During his testimony, Massicotte referred to Perkins as Pelky, though it is clear from the evidence that he was mistaken as to this identification. As well, he could not remember his interview with Gibb at all. These gaps suggest Massicotte’s memory, six years later, may not be reliable as to details.

I accept his evidence where it is corroborated by other evidence, but otherwise I have reservations about it. [ 23 ] I reject the evidence of Horton that he did not know what Perkins looked like. Clearly, this was key information. Further, the information was available to Horton from a number of sources: the photo on the district wall, his partner, the radio. I find it highly improbable that Massicotte would not have told Horton what Perkins looked like once Perkins was named as the suspect.

Further, if Massicotte made this omission, which I do not believe he did, it is highly improbable that Horton would not have asked his partner for a description. I find that Horton was aware of the appearance of Perkins. As well, I find that Horton heard the description of Perkins when Massicotte gave it over the radio at Unit 1132's request.

I note that it is difficult to reconcile Horton’s conclusion that Perkins was dangerous enough that he feared an assault, and his statement that he knew so little about Perkins. [ 24 ] I also reject both Horton and Massicotte’s testimony that they were not aware that Unit 1132 had resolved the break and enter prior to the time Horton and Massicotte approached Nathan. The information appeared on the computer and was broadcast over the radios attached to their uniforms. Further, their approach was not consistent with a break and enter in progress.

Instead of going to the door or to the assistance of Unit 1132 in dealing with Perkins, Horton and Massicotte approached two individuals on the street. [ 25 ] I prefer Horton’s testimony on examination for discovery, that Nathan identified himself to Horton prior to the knee strike. I reject the evidence Horton gave at trial that he did not learn Nathan’s identity until after the strike. The examination for discovery evidence seems both more probable to me, and less likely to be marred by a fading memory.

I note that the evidence showed that Nathan had no reason to want to hide his name from the police; he had nothing on his record warranting an arrest. [ 26 ] I find that Horton knew that Nathan was not Perkins. This finding of fact arises out of my prior findings of fact. Horton knew what Perkins looked like and could see that Nathan did not match the description. Perkins was described as tall, with “almost a brush cut”. Nathan was short in stature, and had short hair with highlights, as well as sideburns and a goatee. Nathan was not at all similar to Perkins in appearance.

In any event, I have also found that Nathan gave Horton his name prior to the strike. [ 27 ] I reject Horton's testimony that he felt threatened by Nathan. I find that Nathan's intention throughout the encounter was to return home. I find that Nathan made no threatening gestures, though he did express his anger in a loud fashion at not being allowed to continue home. The evidence is uncontested that Nathan did not have his hands clenched, or have anything in his hands except a bag of candy. I find that Horton did not tell Nathan at any point not to move.

Nor did Horton request assistance from his partner Massicotte, standing within a few feet of him. [ 28 ] Having seen both Nathan and Horton testify on the same day, I find that Horton is a significantly taller and bigger man than Nathan. While I am aware that Nathan testified that Horton was similar to Nathan in height, I conclude that Nathan did not remember Horton’s height.

[ 29 ] I prefer the evidence of Nathan, corroborated by the evidence of Massicotte, that Horton placed his hands on Nathan's shoulders and pulled him down into the knee strike. [ 30 ] I find that Nathan was not handcuffed after the knee strike. This is the evidence of both Massicotte and Nathan, though not of Horton. I find it highly probable that handcuffs would not have been necessary because of the severity of the pain Nathan would have been experiencing. The pain sent Nathan to the ground and made it impossible for him to stand.

Further, there was no offence for which Nathan could have been arrested. [ 31 ] I find that Massicotte and Horton were clearly aware that Nathan was badly injured. I reject the testimony of Horton that he did not know where he had kicked Nathan. Both the reaction of Nathan and the mechanics of the kick would have been different for a kick to the thigh than for a kick to the groin. Further, it is clear from the evidence that while Horton and Massicotte may indeed not have known the full extent of Nathan's injury, they knew it was serious.

I accept the testimony of Nathan that he could not stand and Massicotte had to lift him into a standing position. Massicotte also stated that he helped Nathan up off the ground. Further, it was clear from Massicotte's testimony that he realized Nathan might be in need of medical attention. [ 32 ] Lastly, I find that Horton and Massicotte knowingly left Nathan in a dangerous area despite his injuries. I find it highly improbable that Nathan would have rejected medical attention if it had been offered to him.

It is the testimony of both Nathan and Horton that no medical assistance was offered, and so I reject the evidence of Massicotte on this point. I find it unlikely a minor drug dealer like McPherson would have remained at the scene after Massicotte told him he could go. I note that neither Horton nor Nathan remember McPherson as having played any kind of role after Massicotte dismissed him. C.

The Aftermath of the Injury [ 33 ] Much of the information before the Court on this subject comes from a book of exhibits entered for the truth of its contents, with the consent of both parties. [ 34 ] An ultrasound performed at the Peter Lougheed Hospital showed that Nathan's right testicle had ruptured from the blow. He was transferred to the Rockyview Hospital by ambulance to receive surgery the same day. Dr. Baverstock, an urologist, performed the surgery, which required opening the scrotum, removing the damaged tissue, and reconstructing a portion of it. The surgery was performed on September 25.

The histopathology report performed on a portion of the removed tissue showed hemorrhage and edema consistent with mechanical trauma. Nathan stayed in the hospital until October 1, which is seven days. The swelling was very bad, and initially he was in a wheelchair. Near the end of the week, the hospital staff were teaching him to walk, but he had to do so in a manner that avoided touching his groin. [ 35 ] Upon discharge, Nathan was unable to perform even the basic activities of daily living because his movements were so restricted by the pain and swelling.

He moved to Halifax to stay with his mother as he was not able to grocery shop, cook, or clean for himself. Nathan testified that it took four to five months after the surgery before he could do these things for himself. [ 36 ] Nathan was prescribed Tylenol #3 in October 2004, and complained of such pain that he was unable to move. A report from a Halifax Urology Clinic from November 1, 2004 showed a notation that the pain was bearable and largely restricted to the right testicle when taking four Tylenol #3 daily, but occasionally radiated from the right testicle to the lower abdomen.

The report also noted that the area was so tender that the urologist was unable to remove the suture. Clinic notes from March 3, 2005 show Nathan complained of continuing pain, especially with movement, and when sleeping on his side. Tylenol #3 was again prescribed. [ 37 ] In June 2005, Nathan went to Dr. Martin Duffy, an urologist in Halifax, complaining of chronic testicular pain. Dr. Duffy referred Nathan to Dr. Baverstock, who had performed his surgery, and Nathan saw Dr. Baverstock on July 25, 2005. Dr.

Baverstock noted that Nathan was continuing to work, but was finding it difficult to work on machinery because of pain. An ultrasound performed August 31, 2005 showed that the injury had healed with normal blood flow, but that a region of the lower pole of the right testicle was ill-defined and hypoechoic. On September 15, 2005, Dr. Baverstock followed up with Nathan, who reported continuing testicular pain. In his letter of October 3, 2005, Dr. Baverstock noted there was very little that could be done for chronic testicular pain. No further surgery was advised.

[ 38 ] Reports from treating physicians show that various medications were tried, including Toradol, Tylenol #3, and Advil and Tylenol combined. Nathan continued to report pain that made it difficult for him to work. Finally, the doctors started to prescribe OxyContin in 2005. Since then, Nathan has taken this medication. Currently, he takes a dosage of 40 milligrams, twice a day. Nathan testified that he feels pain from the injury about once a week when taking OxyContin. If he does not take his medication, he experiences a lot more pain and moves around much more slowly.

OxyContin is a narcotic, and Nathan’s doctors have expressed concerns about addiction. [ 39 ] Dr. Baverstock suggested that Nathan might derive some assistance from the Chronic Pelvic Pain Clinic. Nathan has been unable to pursue that treatment because he currently resides in Labrador City, which is situated on an island and far removed from a large centre that would have such a program.

No evidence has been presented to the Court as to the extent that such a pain program would help with testicular pain. [ 40 ] Nathan was 22 years old when he suffered this injury, and likely will continue to have chronic pain for the rest of his life. There have been no changes to his condition over the past two years. He continues to consult with his family physician on a regular basis. [ 41 ] The chronic pain has significant side effects for Nathan. His activities in daily life are restricted.

The slightest wrong movement during intercourse causes significant pain, impacting Nathan’s enjoyment and affecting his relationship with his partner. Apart from the pain itself, the OxyContin he takes is a narcotic with important negative side effects. It makes Nathan drowsy. It affects his memory. It causes problems with urination. It is addictive. [ 42 ] Both the pain and the drowsiness caused by OxyContin restrict the work that Nathan can do. He was unable to return to work until 2005, and due to the pain, he could not work as an operator of heavy machinery, his chosen occupation.

Nathan has not completed high school. He currently works as a short-haul truck driver. Legislation [ 43 ]

Section 25 of the Criminal Code of Canada , R.S.C. 1985, c. C-46 provides a defence to those enforcing the law, if certain conditions are met: 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. [ 44 ]

Section 37 of the Criminal Code allows the use of force in self-defence: Preventing assault 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than

is necessary to prevent the assault or the repetition of it. Extent of justification

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [ 45 ]

Section 39 of the Police Act , R.S.A. 2000, c. P-17 sets out the liability of the Chief of Police for torts committed by police officers, and provides that the municipality may indemnify an officer: 39(1) For the purposes of this section, "employee" means any civilian employee or any peace officer appointed under the Peace Officer Act employed for a police service established under

section 24 or 27.

(2) The chief of police is liable in respect of a tort committed by a police officer or other employee as a master is liable for a tort committed by the master's servant in the course of the servant's employment, if (

a) the police officer or employee was under the direction and control of the chief at the time that the tort was committed, and (

b) the tort was committed in the performance or purported performance of the duties of the police officer or employee.

(3) The chief of police shall be treated for all purposes as a joint tort-feasor in respect of a tort referred to in subsection (2). ...

(5) The council, and not the chief of police, shall pay the following in respect of any action brought against the chief under this section: (

a) any damages and costs awarded against the chief; (

b) any costs incurred by the chief in respect of the action insofar as those costs are not recovered by the chief in the action; (

c) any sum payable under a settlement that is entered into by the council in respect of the action. ...

(8) Where a civil legal action is brought against a police officer arising out of the performance of the police officer's duties, the municipality may in respect of that action indemnify the police officer, in whole or in part, for the following: (

a) any damages and costs, or either of them, awarded against the police officer; (

b) any costs incurred and not recovered by the police officer; (

c) any sum payable under a settlement. [ 46 ] Section 62(1) of the Hospitals Act , R.S.A. 2000, c. H-12 allows the Crown to recover its medical expenses from a tortfeasor: 62(1) If a beneficiary receives health services for personal injuries suffered as a result of a wrongful act or omission of a wrongdoer, the Crown has the right to recover from the wrongdoer the Crown's cost of health services (

a) for health services that the beneficiary has received for those personal injuries, and

(

b) for health services that the beneficiary will likely receive in the future for those personal injuries. Analysis 1. Liability A. Law [ 47 ] The case of Crampton v. Walton , 2005 ABCA 81 , 363 A.R. 216 summarizes the law applicable to this area. First, the plaintiff must establish on a balance of probabilities that the tort of assault and battery occurred, in particular both the assault itself, and the injury that resulted from it. Once the plaintiff has established assault, the onus shifts to the defendant to establish any defences he intends to rely on.

Here, the defendants rely on s. 25(1) of the Criminal Code . [ 48 ] I find it useful to review the law relating to investigative detention before considering s.25 (1), because the assault which is the focus of the analysis took place during an investigative detention. [ 49 ] In R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court analysed the law regarding when an investigative detention has taken place. McLachlin C.J. and Charron J. stated for the majority, at para. 31: This second form of psychological detention - where no legal compulsion exists - has proven difficult to define consistently.

The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. As held in Therens , this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police. As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops. [ 50 ] In R. v.

Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59, the Supreme Court of Canada explained that there is only a limited power of investigative detention at common law, at para. 34: The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. [ 51 ] There is both a subjective and an objective component to the assessment of reasonable grounds: Mann at para. 27 . [ 52 ] The law is clear that there is no obligation on an individual to answer the questions of the police during an investigative detention: see Mann at para. 45 ; Grant at para. 37 .

In R. v. Greaves , 2004 BCCA 484 , 189 C.C.C. (3d) 305 the Court of Appeal outlined the applicable law at para. 50: Given the absence of any legal obligation that required the appellant to identify himself to the police, it is difficult to see how the extended detention could be considered reasonably necessary had the appellant simply refused to reply to Cst. Winters' request for identification. If those were the circumstances, the extended detention, aimed at compelling information from the appellant which he was under no legal obligation to provide, probably could not be justified.

It would have represented a significant restriction of liberty in a situation in which the appellant's behaviour was perfectly consistent with his legal obligations.

[ 53 ] An older statement of the law to the same effect can be found in R. v. O'Donnell; R. v. Cluett (1982), 1982 CanLII 3828 (NS CA) , 55 N.S.R. (2d) 6 (C.A.), rev’d on other grounds 1985 CanLII 52 (SCC) , [1985] 2 S.C.R. 216; 61 N.R. 388, at para. 41, where the Court cited Martin J.A. for the Ontario Court of Appeal in R. v.

Dedman (1980), 1981 CanLII 1631 (ON CA) , 32 O.R. (2d) 641 (C.A.) at 653, aff’d 1985 CanLII 41 (SCC) , [1985] 2 S.C.R. 2: [A] police officer has no right to detain a person for questioning or for further investigation....Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless, of course, the officer arrests him on a specific charge or arrests him pursuant to s. 450 of the Code where the officer has reasonable and probable grounds to believe that he is about to commit an indictable offence. [ 54 ] To succeed with the s. 25(1) defence, the Defendants must prove each of the three branches of that

section on a balance of probabilities. Crampton summarizes the three elements at para. 6: In order to access the protection of the section, a police officer must prove that he or she:

i) was required or authorized by law to perform an action in the administration or enforcement of the law; ii) acted on reasonable grounds in performing that action; and iii) did not use unnecessary force. [ 55 ] Under the first element, the court considers whether the type of action performed is authorized or required by law. The analysis does not focus on how this particular action was carried out, but whether the type of action could properly fall within the police officer's law enforcement duties.

In Crampton , for example, Fruman J.A. writing for the Alberta Court of Appeal held that the reasonable restraint of an individual necessary to the proper execution of a search warrant was authorized by law. [ 56 ] A police officer can not shelter under the protection of s. 25(1) if he was not performing an action authorized by law. The law does not authorize the use of force in investigative detention. As per Bensler J. in Bolianatz v. Edmonton Chief of Police , 2002 ABQB 284 , 313 A.R. 73 (Q.B.) at para. 22 : Case law establishes a further limit to the applicability of s. 25(1) .

Police officers are not entitled to the protection of s. 25(1) unless an arrest is warranted and [has] been properly made; police officers are not justified in using force to restrain a person, short of arrest, to carry out an investigation: [citation omitted]. [ 57 ] The second part of the three-part test under s. 25(1) requires the Court to consider whether the police acted on reasonable grounds in performing the authorized action in the manner in which it was performed. The Court is to place itself in the shoes of the police officer.

The question is whether, in the circumstances the officer faced, an objectively reasonable basis existed for the actions taken. This test does not require the officer to be right at all times, but only to react reasonably to the circumstances he or she faces. The test for this branch recognizes that the nature of law enforcement requires police officers to make decisions quickly. Accordingly, it seeks to give police officers some latitude in their decisions. However, it does not give the police an absolute waiver of liability.

In Crampton , the Court looked at whether the police had a reasonable basis for carrying out the warrant in such an aggressive manner. Fruman J.A. held that the police concern that the residents could be armed could well have provided such a basis. However the evidence failed to establish that the concern was reasonable. [ 58 ] Under the third branch of s. 25(1), the Court considers whether the amount of force used was objectively reasonable in the circumstances the police officer faced. Police officers often face dangerous circumstances, and have to react quickly.

As a result, police officers are not required to measure the amount of force with precision, nor to use the least amount of force. The court in Crampton cited with approval at para. 44 the statement from Levesque v. Zanibbi , 1992 CarswellOnt 2832 (Gen. Div.) that police officers are justified "if they use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which

they find themselves." In Crampton , the Court of Appeal upheld the finding that the police officer used excessive force in pushing Crampton down on the ground and kneeling on him, causing five cracked ribs, especially given that Crampton provided absolutely no resistance to the officer. [ 59 ] Where a police officer would otherwise be personally liable for the tort committed, neither s. 25(1) of the Criminal Code nor s. 39 of the Police Act exempt the officer from liability.

In Crampton , the Court held that the trial judge did not have the discretion to enter judgment only against the police chief and not against the individual officer where the judge had found the officer personally liable for using excessive force. At most, ss. 39(2) and (3) of the Police Act would have made the police officer a joint tortfeasor, and s. 39(8) would have allowed the municipality to indemnify the officer. See also R. v.

Luipasco , 2007 ABPC 250 , 430 A.R. 53 at para. 84 , where Lefever A.C.J. stated, “A finding of tortious liability is made against a police officer in his/her personal capacity, and not in any institutionalized role as part of the Crown.” B. Application [ 60 ] It is an uncontested fact that Horton struck Nathan with a knee strike. This was the uncontradicted evidence of all witnesses. The medical documents make it clear that injury arose as a result of this strike. This too is uncontested.

The case for a civil assault and battery is made out. [ 61 ] The only issue before the Court is whether s. 25 of the Criminal Code provides a defence. [ 62 ] Prior to applying s. 25(1) , I state my findings that an unlawful investigative detention took place here. First, applying Grant , I come to the conclusion that a detention took place. I have found that Nathan wanted to go home. He asked Horton why he could not continue on his way, and was told that Horton would ask the questions. In cross-examination, Horton admitted that Nathan was not consenting to the detention.

Clearly, Nathan wanted to leave but felt he could not. Objectively, it was reasonable for Nathan to conclude that he had no choice but to comply. [ 63 ] Second, the investigative detention was unlawful. Horton did not have reasonable grounds for the investigative detention of Nathan. Subjectively, I have found that Horton knew that Nathan was not Perkins. He knew that Nathan did not look like Perkins, and Nathan told Horton his name. I have also found that Horton knew that the break and enter was resolved.

He failed to articulate any grounds to Nathan when asked to state the grounds for the detention, and instead deflected the question. Objectively, there was no nexus to an offence as required by Mann , as the break and enter had been resolved. Further, there was no reason to connect Nathan with the break and enter.

While Horton testified that part of his basis for stopping Nathan arose out of the fact that Nathan seemed to Horton to be intoxicated and was in the area of the complaint, these two factors on their own cannot justify a detention. [ 64 ] Moving to s. 25(1) , I find that the Defendants fail to satisfy the first test under the s. 25(1) defence because Horton was not performing an action required or authorized in the administration of the law.

While the law authorizes investigative detention, there is no legal authority for the use of force in an investigative detention. [ 65 ] However, the Defendants argue that Horton’s action was authorized under the first branch of s. 25(1) by virtue of s. 37 of the Criminal Code , as self-defence. If it was a case of self-defence, the use of force would indeed be authorized, and the analysis would proceed to the second branch of s. 25(1) . [ 66 ] I find that the Defendants fail to satisfy the second branch of the test under s. 25(1), as Horton did not have reasonable grounds to strike Nathan in self-defence.

Horton knew Nathan was not the dangerous individual Perkins. It was not reasonable to infer a physical threat from the belligerent language used by Nathan. While Nathan was rude, he did not at any time either verbally or physically threaten Horton. He held a bag of candy in his hands. He had been walking by, and wished to continue on his way. [ 67 ] Under the third branch of s. 25(1), I find that Horton used excessive force. While Horton did not have to measure exactly the force used, striking Nathan at all was excessive in these circumstances.

There were many options open to Horton that did not require a strike: allowing Nathan to go; telling Nathan to move back; or asking Massicotte, standing only a few feet away, for assistance. All of these options would have satisfactorily resolved the matter. I am reinforced in my conclusion by the evidence that Calgary Police

Services policy is that the use of force is not acceptable in the absence of a physical threat to the police officer or someone else. Further, this is not a situation where the police officer had to make a split-second decision to prevent an assault, and could not take the time to measure the level of force with nicety. If a strike was excessive by itself, a strike to the groin was clearly excessive. [ 68 ] Webster v. Wasylyshen , 2007 ABCA 23 , 401 A.R. 266 (C.A.), relied upon by the Defendants, is highly distinguishable from the current situation.

In Webster , the Court of Appeal found that the detention of the respondent was reasonable. However, in Webster the respondent was the very person who was being investigated for death threats and gun offences, providing a clear nexus between the detention and an offence. As well, the Court of Appeal criticized the trial judge for relying improperly on hindsight in determining that the police should have sought more information. In the current case, there is no speculation as to whether Horton could have obtained the information that Nathan was not Perkins. That information was in front of him.

As well, the Court of Appeal in Webster held that the trial judge failed to consider whether the police officer’s assessment of the circumstances was reasonable, and to apply the principle that the police do not need to measure the precise amount of force required in the exigency of the moment. As noted above, this case differs because I have found that Horton’s assessment was not reasonable, and that there was no exigent situation. [ 69 ] I find Horton and the Chief of Police jointly and severally liable for the assault committed on Nathan. 2.

Damages [ 70 ] The parties have agreed that the Crown's claim for the costs of the medical treatment required by Nathan is $9,394.01. The injuries sustained by Nathan were suffered as a result of a wrongful act of a wrongdoer, and s. 62(1) of the Hospitals Act , cited above, gives the Crown the right to recover from the wrongdoer in those circumstances. The Crown will have judgment in the amount of $9,394.01. This amount already includes interest pursuant to the Judgment Interest Act , R.S.A. 2000, c.

J-1. [ 71 ] Nathan will have judgment in the amount of $7,240.19 for the expenses he has incurred to date to purchase painkillers and other prescription medications related to his injury. I am informed by counsel for the Plaintiff that this number has already been reduced to take into account medical benefits, and reflects only the out-of-pocket cost paid by Nathan. [ 72 ] I find that Nathan was unable to work from September 24, 2004 until 2005. The evidence does not disclose the date at which Nathan returned to work. Counsel for the Plaintiff informs me that the period of disability is 7.3 months.

Using Nathan’s monthly net income in 2005 to estimate his monthly income, Counsel for the Plaintiff has arrived at a total income loss of $22,900.10. However, this amount is based on Nathan’s earnings at his job in 2005, where his income appears to be substantially higher than the income he was earning prior to the injury as a mover, while looking for work with heavy machinery. As well, he was underemployed prior to the injury. A calculation with the pre-injury salary of $12/hour, at 40 hours a week, and 4 weeks a month, multiplied by 7.3 months, puts Nathan at $14,016.00.

I award this amount. [ 73 ] Nathan argued that he suffered a loss of future earning capacity. I recently set out the law relating to loss of capacity in the case of Meehan v. Holt , 2010 ABQB 287 , at paras. 347- 350 : When a plaintiff suffers an injury which reduces his or her ability to earn an income, a capital asset has been diminished. For this the plaintiff must be compensated: Andrews v. Grand & Toy Alberta Ltd. , 1978 CanLII 1 (SCC) , [1978] 2 S.C.R. 229. Loss of capacity must be established as a reasonable possibility, and not as mere speculation: Lowe v. Larue , 2000 ABCA 28 , 250 A.R. 220 at para. 51 .

In assessing damages for loss of capacity, regard may be had to, inter alia , the following factors: has the plaintiff been rendered less capable overall from earning income from all types of employment; is the plaintiff less marketable to potential employers; and, has the plaintiff lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her: Olson v. General Accident Assurance Co. of Canada , 1998 ABQB 405 , 218 A.R. 310 at para. 51 ; varied on appeal on other grounds (quantum); 2001 ABCA 91 , 281 A.R. 327; Kwei v.

Boisclair (1991), 1991 CanLII 645 (BC CA) , 60 B.C.L.R. (2d) 393 (C.A.), Prosser v. 20 Vic Management Inc., supra at paras. 249-260. While the value of this loss is often calculated based upon future loss of earnings, this approach is not always feasible: see for example Ganderton v. Brown, 2004 ABQB 366 , 33 Alta. L.R. (4 th ) 271 where the plaintiff dentist’s income increased following the collision. In the case at bar, the Plaintiff has not proven such a loss.

The difficulty in quantifying a loss of capacity was discussed by Brooker J. in Madge v. Meyer , 1999 ABQB 1017 , 256 A.R. 201; affirmed 2001 ABCA 97 , 281 A.R. 143. Here, the court noted that even if a plaintiff cannot prove a loss of income [on] the facts, he has still lost a capital asset for which he may be compensated.

As Justice Brooker noted at paras. 144-145, the plaintiff was entitled to compensation for lost capacity regardless of the profitability of his farm: On the whole, it appears that the weight of authorities favour compensation for lost future income or work capacity even where no actual loss of income has yet occurred. In Alberta, Olson and Scholten conflict with Neilson . Further, there are a number of B.C. cases as well as Engel and the principles from Andrews which require the court to compensate the plaintiff fully.

Even though the individual may be currently secure, he still has lost a tangible asset in his working ability for which he should be compensated. Thus, I believe the court is required to award compensation in these cases. The problem then becomes how to quantify the award. Where there is some evidence of past lost income or replacement costs, the courts have been able to reasonably extrapolate the cost in the future as in Andrews , Engel, Scholten .

In some cases, as in Olson , the court has been able to make a future loss estimate based upon salary that would be lost sometime in the future due to the eventual effects of the injury where there are some hard numbers to work with. However, in many cases there will be no past losses or replacement costs upon which to base a calculation. Further, the Supreme Court in Engel suggests that some evidence of losses due to the injury must be led in order to base a decision on that criteria. Thus, in many cases the decision will be completely arbitrary, as in Pallos , Johnson and Anderson .

The technique ultimately used will depend upon the facts. [ 74 ] The evidence shows that Nathan has suffered a loss of capacity. His injury limits the types of employment he can undertake. He testified that any type of bouncing or striking of the groin causes significant pain. His current job as a short haul truck driver causes him pain, and his doctors have suggested other employment. As well, he is using significant doses of a narcotic medication that causes drowsiness. As a result of all this, his competitiveness in the workplace has been significantly reduced.

This injury strikes at the heart of what Nathan has to offer an employer, which is his physical labour. He is precluded from many jobs, such as operating heavy equipment. I award $35,000 for loss of capacity. As well, the injury will affect him over the remainder of his working life. He is currently only 28 years old. Over a period of 25 years, the award works out to $1,400/year, which is very moderate given the loss of capacity. [ 75 ] I decline to award damages for loss of housekeeping.

While it is clear from the evidence that Nathan could not perform housekeeping following the injury, no evidence was led as to his level of housekeeping prior to the injury. The scant evidence before the Court suggests that Nathan was not living in his own residence, and may not have been performing any housekeeping. [ 76 ] For future costs of care, there are two options for treatment. Nathan can take pain medication for the rest of his life, or seek out a pain management program. Plaintiff’s counsel has calculated the present value of the cost of the current dosage of OxyContin to age 65 to be $79,000.

The Defendants do not take issue with this calculation, but point out that Nathan may be able to attend the Pelvic Pain program and gain some relief, and that he may have to discontinue OxyContin use at some point in the future because of the addictive qualities of that drug. I award Nathan $35,000.

This amount contemplates that Nathan will attend a pain management program, or pain management counselling and treatment, to free himself from the pain medication. [ 77 ] As regards general damages, Nathan’s injury was unique, and neither side was able to provide the Court with case law dealing with chronic pain from a testicular injury of such severity that it required daily narcotic use. In particular I have found the cases of Bolianatz, supra and Houkayem v. Michaud , [1989] O.J. No. 765, 1989 CarswellOnt 1622 (H.C.) unhelpful. In Bolianatz , the plaintiff was left with no pain or disability.

In Houkayem , the disability was much smaller and the pain was only on physical contact. As well, the plaintiff was found to have a tendency to exaggerate and manipulate. [ 78 ] I have turned to cases of surgery and chronic pain for an appropriate range of damages. [ 79 ] Wittmeier v. Scholes , 1999 ABQB 4 , 239 A.R. 42 is a comparable case to the current case. There, an impinged and damaged nerve caused chronic back pain. The pain was so significant it required daily methadone treatment. It restricted the plaintiff’s ability to work and to perform the vast majority of his physical activities.

He was awarded $125,000 in 1999. [ 80 ] In Stone v. Ellerman , 2007 BCSC 969 , rev’d on other grounds 2009 BCCA 294 , [2009] 9 W.W.R. 385 the 19-year-old Stone

suffered an injury that caused her chronic pain from pelvic misalignment. The evidence suggested that there was very little chance for significant recovery. No mention was made of the patient having to take pain medication beyond non-prescription painkillers, though she had to rest during work hours to recover from her pain. In addition, she had to focus her free time on recovering from work in order to be able to continue her employment.

The plaintiff was awarded $100,000 in general damages. [ 81 ] In Prosser v. 20 Vic Management , 2009 ABQB 177 , aff’d 2010 ABCA 57 , 474 A.R. 288 Cairns J. awarded $100,000 in general damages for a case of chronic pain requiring ongoing treatment. In that case, the plaintiff tripped and sustained musculo- ligamentous injuries and a disc injury. She did not undergo surgery. However, the injury caused significant, chronic back pain that impaired her ability to function in her daily activities.

She underwent therapies such as chiropractic and massage treatments, as well as more invasive treatments such as injections. [ 82 ] The loss suffered by Nathan was great. Before this assault, Nathan did not need to give a second thought to activities like walking around. He could perform all the functions of life without pain. He regularly performed physically demanding labour.

As a result of the injury, he has suffered a protracted and painful recovery, an invasive surgical procedure, and chronic pain so significant he continues, now more than six years later, to require strong narcotic analgesics on a daily basis. His ability to have a normal sexual relationship has been compromised and he experiences increased pain with intercourse. This impacts not only his own enjoyment, but also his relationship with his partner. The pain medication he takes leaves him drowsy, and creates difficulties with urination.

Everyday movements such as driving a bumpy vehicle, or sitting down in a chair too quickly cause him significant pain. Nathan was 22 years old when he sustained this injury. It will impact virtually all of his adult life, and it will impact virtually all the facets of his life, both physical and mental. There is no prognosis for improvement. [ 83 ] I find that the pain and its impact are more severe than that suffered in Prosser and in Stone , and only slightly less severe than the chronic pain in Wittmeier .

While the pain suffered in Wittmeier may have been slightly greater, I note that the nature of a back injury is not comparable to a testicular injury because the latter is so intimate. I award $120,000 in general damages. [ 84 ] That leaves the matter of aggravated and punitive damages. In Norberg v. Wynrib , 1992 CanLII 65 (SCC) , [1992] 2 S.C.R. 226, La Forest J. writing for the majority provided guidance on aggravated and punitive damages for the tort of battery. The battery in Norberg arose from repeated sexual assaults perpetrated by a doctor on his patient.

La Forest J. stated at 263-64: Aggravated damages may be awarded if the battery has occurred in humiliating or undignified circumstances. These damages are not awarded in addition to general damages. Rather, general damages are assessed ‘taking into account any aggravating features of the case and to that extent increasing the amount awarded’: see N. (J.L.) v. L. ( A.M.) (1988 ), 47 C.C.L.T. 65 (Man. Q.B.), at p.71, per Lockwood J. These must be distinguished from punitive or exemplary damages.

The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort; see Linden, Canadian Tort Law (4 th ed. 1988), at pp. 54- 55. In Vorvis v. Insurance Corporation of British Columbia , 1989 CanLII 93 (SCC) , [1989] 1 S.C.R. 1085, at pp. 1107-8, McIntyre J. thus set forth the circumstances where the defendant’s conduct would merit punishment: ...punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature.

I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment. Although aggravated damages will frequently cover conduct which could also be the subject of punitive damages, as I noted, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate.

See Vorvis , at pp. 1098-99. [ 85 ] In Whiten v. Pilot Insurance Co , 2002 SCC 18 , [2002] 1 S.C.R. 595, the Supreme Court provided further guidance as to the factors to be considered in making an award of punitive damages. The Court affirmed that the objectives of punitive damages were retribution, deterrence and denunciation. Punitive damages should only be resorted to in exceptional cases, where there has been “high- handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”: at para. 94.

The award of punitive damages should be made only where, given the particular facts of the case, it would further one or more of the objectives noted, and the award should be the lowest award that would serve that purpose. The governing rule for quantum is proportionality. The overall award of damages plus any other punishment related to the same misconduct should be taken into account.

[ 86 ] In Breland v. Abbott , 2005 ABQB 903 , 390 A.R. 51, Macklin J. awarded punitive damages against an officer for excessive use of force. The police officer had applied blows to the Plaintiff’s rib cage in order to subdue him, resulting in fractured ribs, and a kidney injury which resolved itself. The Plaintiff had been 60 years old at the time of the incident. Macklin J. held, at paras. 76-78: The excessive force used by Abbott was highly reprehensible misconduct that departed to a marked degree from the ordinary standards of decent behaviour.

There is one further factor, however, that I consider in awarding punitive damages to the Plaintiff. Knowing the Plaintiff was in pain and having trouble breathing on the ride to the police station, Abbott should have ensured he received full and proper medical treatment. The Plaintiff was in custody for three days, but was seen by only a couple of nurses at the Remand Centre. This was not sufficient. In my view, the actions and behaviour of Abbott warrant punitive damages in the sum of $5,000.00. [ 87 ] In the current case, I find the officer’s behaviour reprehensible.

The use of a strike to the groin where no use of physical force at all was called for, in the context of an unlawful investigative detention, is behaviour that calls out for punishment, denunciation and deterrence. The assault was contrary to Calgary Police Service policy on the use of force, and contrary to Horton’s training. The situation was further aggravated by the behaviour of Horton after the strike. Horton knew Nathan was in serious pain, even if he did not know the extent of the injury.

Yet, he did not offer Nathan medical attention, or even transportation to a safer location, leaving Nathan vulnerable and without help in a dangerous area. In order to connect the award of punitive damages to the objectives of punishment, deterrence, and denunciation, I award punitive damages only against Horton personally. I am mindful of the Supreme Court’s admonition in Whiten to award the lowest amount that will achieve the desired objectives, and therefore I set punitive damages at $5,000.00. [ 88 ] Costs may be spoken to. Heard on the 29 th day of October, 2010.

Dated at the City of Calgary, Alberta this 13 th day of December, 2010. W.P. Sullivan J.C.Q.B.A. Appearances: Tara Cassidy and Clinton Ford for the Plaintiffs David Steele

for the Defendants