Murray v. Hanson, 2012 ABQB 547

Court of Queen ’ s Bench of Alberta Citation: Murray v. Hanson, 2012 ABQB 547 Date: 20120904 Docket: 0801 01460 Registry: Calgary Between: John Wayne Murray Plaintiff - and - Rick Hanson, Jack Beaton, Michael Williams, Andrew Wilkinson, and J. Dalton Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. S.

Brooker _______________________________________________________ Introduction [ 1 ] This is an action by the plaintiff for damages against various Calgary City police officers as a result of an alleged assault on him by the police officers when he was under arrest and in the cells of the police arrest process unit here in the city of Calgary. Facts [ 2 ] The basic facts of this case are not in dispute. On the evening of May 19, 2006, John Wayne Murray (the “ plaintiff ” ) was

arrested by members of the Calgary Police Service ( “ CPS ” ) and taken to the arrest processing unit where he was placed in a holding cell with a number of other arrested persons. This holding facility is commonly referred to as the “ drunk tank ” . At the time of the plaintiff ’ s arrest and placement in the drunk tank he was intoxicated.

By his own admission, he had consumed between 10 and 15 beers between the hours of 2 p.m. and 7 p.m. that day as he was celebrating at home alone a new job offer. [ 3 ] The plaintiff was 31 years old, weighed 210 pounds and 5'8 ½ " tall. [ 4 ] The plaintiff became involved in an altercation with one of the inmates in the drunk tank and as a result, was forcibly removed from the drunk tank, handcuffed and placed in a smaller cell (an “ isolation ” cell) by himself, some distance down the hall from the drunk tank.

There, he was placed on the floor and held there by several officers, while they tried to remove the handcuffs from him. During the removal process, the defendant Sgt. Michael Williams ( “ Williams ” ) administered 3 strikes with his hand to the plaintiff ’ s trunk in the area between his waist and arm pit.

The plaintiff claims that as a result of these strikes, he was bruised in that area for about a week. [ 5 ] The real issue in this case, according to counsel for the plaintiff during argument, relate to these 3 hand strikes by Williams. [ 6 ] While the plaintiff did receive medical attention and a hospital referral while in custody, it appears from the evidence that that was for concerns relating to an erratic heart beat which in turn related to a pre-existing condition and was not related to these 3 hand strikes.

Indeed, the plaintiff did not call any medical evidence in respect of his claim. [ 7 ] In argument before me at the conclusion of the trial, counsel for the defendants agreed that the plaintiff had been assaulted and that the onus was on him to show that the force used was reasonable. [ 8 ] The evidence at trial consisted of the plaintiff ’ s testimony and “ read-ins ” , the testimony of Williams, Cst. Joseph Dalton ( “ Dalton ” ) and Cst. Andrew Wilkinson ( “ Wilkinson ” ).

These three officers were all involved in removing the plaintiff from the drunk tank to the isolation cell as well as removing his handcuffs in the isolation cell. In addition, I heard evidence from Sgt. Veldhoen as to the CPS written use of force policy at the time, Dr. Mitchell Spivak, an expert in psychiatry and Chris Lawrence who was qualified as an expert in police use of force, subject control techniques and police defensive tactics.

In addition, there were seven exhibits entered of which Exhibit 1 was an agreed exhibit. [ 9 ] I make the following comments on the witnesses who testified in person. [ 10 ] I do not find the plaintiff to be a reliable witness. He has no memory of many of the events which is perhaps not surprising considering the amount of alcohol he consumed. He admits he has had to guess at some of the details. He admitted that “ my story has changed a little bit ” since the examinations for discovery and that some of the evidence he gave on his discovery is “ somewhat inaccurate ” .

When asked on cross examination at trial he agreed it was fair to say that at trial he could not really recall all of the details as to what happened. [ 11 ] While I found Williams generally to be a credible witness, he clearly was wrong at discovery concerning his understanding of the CPS Use of Force policy at the time. [ 12 ] I found both Dalton and Wilkinson, although generally credible, were inclined to exaggerate or embellish their evidence at times and thus I have approached their evidence with a degree of cautious scepticism. [ 13 ] Sgt.

Veldhoen was a credible witness however, I did not find his evidence to be of much assistance to my decision in this case. [ 14 ] Dr. Spivak was also credible but his evidence was of no assistance to my decision.

[ 15 ] Chris Lawrence I found credible but his evidence was of little, if any, assistance to me. [ 16 ] The evidence which was of most assistance in this case was the video recording of the events in question. It in found in Exhibit 1, Tab 1. While the recording is by no means perfect in that the recording seems to have been made with cameras which, instead of making a continuous recording, does a recording every few seconds, this exhibit gives a clear sense of what was happening and allows the observer to assess the viva voce evidence given by the witnesses.

Issues [ 17 ] Given the admissions made by counsel during oral argument at trial, the issues to be decided are these: A. Was the force used by Williams to strike the 3 blows a reasonable use of force in the circumstances? B. If not, what injuries were caused by these blows? C. What general damages should be assessed? D. Should aggravated or punitive damages be assessed? Analysis A. Was the force used by Williams to strike the 3 blows a reasonable use of force in the circumstances? [ 18 ] Our court of appeal in Crampton v.

Walton 2005 ABCA 81 , in discussing the defence of a police officer to an allegation of assault makes these observations at paras. 42 and 45 (citations omitted): [42] The final element of the s.25(1) defence requires the court to determine whether unnecessary force was used. In making this assessment, the court is to determine whether the use of force was objectively reasonable in light of the circumstances faced by the police officer. [45] Police officers are not expected to measure the precise amount of force the situation requires: ...

Nor will they be denied the protection of s.25(1) if they fail to use the least amount of force that would achieve the desired result. Allowance must be made for an officer, in the exigency of the moment, misjudging the degree of necessary force: ... Accordingly, the immediate decisions a police officer makes in the course of duty are not assessed through the ‘ lens of hindsight ” :... [ 19 ] At the outset, I wish to acknowledge that there was much evidence adduced at trial concerning the CPS “ use of force ” policy. It is clear that Sgt.

Williams and other officers involved on the night in question, misunderstood what that policy was at the time and in fact, interpreted it or understood it to be more restrictive than in fact it was. However, whatever the policy was or however it was understood, is of no great assistance to me in determining the question of whether the use of force in this circumstance was reasonable or not. [ 20 ] The evidence satisfies me that the plaintiff was in a combative mood on the night in question. He was involved in an altercation in the drunk tank. He was impaired by alcohol.

The video shows him struggling and not really co-operating as he is being taken to the isolation cell. In fact, at some point he has to be carried.

[ 21 ] Once placed in the isolation cell, it was reasonable and prudent for the officers to try and remove the handcuffs immediately and not to delay removing the same until the plaintiff was more calm, as suggested by plaintiff ’ s counsel. I reach that conclusion for the following reasons. First, I accept the police evidence that it was busy in the arrest processing unit that night and thus it made more sense to remove the handcuffs as soon as the plaintiff was in the isolation cell when the officers were already there, available and ready to do so.

If the removal was delayed, the opportunity to have that number of officers available might not come for some considerable time. Second, and more importantly, there was a risk in leaving the handcuffs on that the plaintiff might fall and injure himself. It must be remembered that the plaintiff was drunk and that his hands were being held behind him by the handcuffs. There was thus a risk that if the plaintiff got up from the concrete floor and lost his balance, he could not protect his face and head from a fall.

Accordingly, it was reasonable for the officers to proceed to remove the handcuffs as soon as the plaintiff was placed in the isolation cell. [ 22 ] I also find that the plaintiff was not co-operating with the police when they tried to remove the handcuffs. While the video is not perfectly clear, it appears to show (and confirm the police evidence) that the plaintiff was struggling as the police attempted to remove the handcuffs. During the trial, I had the opportunity of examining the standard handcuffs used by the police and the “ key ” that is used to unlock them.

It must be noted that the “ key ” is not like a normal key that one might use to open a door or start an automobile. It appears more like a pick-like device. Having examined it, I can appreciate the difficulty in trying to insert this pick-like device into the small hole on the handcuffs, if the wearer of the handcuffs is struggling and the handcuffs are not being held still. [ 23 ] Sgt. Williams testified that he struck the three blows to the plaintiff ’ s right side as a “ distraction ” technique in order to facilitate the removal of the handcuffs.

I accept that evidence and find that it was a reasonable technique to use in the circumstances. I am also satisfied that the amount of force used by this technique was not unreasonable. Observing the video, it shows the three quick blows. There is no “ wind up ” to the administering of these blows. Sgt. Williams is not a big muscular man — he might best be described as “ wirey ” . Nor does Sgt. Williams “ beat on ” the plaintiff. Nor does the removal of the handcuffs commence with the blows — they come later as the officers struggle to get the handcuffs off. The video supports Sgt.

William ’ s evidence that he was simply trying to distract the plaintiff in order that the handcuffs could be removed. [ 24 ] Further, another measure of the reasonableness of the force can be found from the fact that the three blows did not cause the plaintiff serious or permanent injury. At its highest, the plaintiff suffered some minor bruising and discomfort to his right side. [ 25 ] Therefore, on the whole of the evidence, I find that the three blows struck by Sgt. Williams were a reasonable use of force in the circumstances.

The defendants therefore have a valid defence to the claimed assault. [ 26 ] While this finding should dispose of the claim, I will proceed to address the other issues in case another court disagrees with my finding above. B. If not, what injuries were caused by these blows? [ 27 ] The plaintiff testified that his rib area was bruised for about a week as a result of these blows and that he also suffered pain and discomfort in the rib area. No medical evidence was called on his behalf although in Exhibit 1 at Tabs 2 and 3 there appears to be some medical records relating to the night in question.

As noted earlier, the plaintiff was taken to the Foothills Hospital because of concerns regarding an irregular heart beat. That appears to have nothing to do with the force applied in this case.

In any event, I cannot read the handwriting on many of the notes in these Tabs however there is a typed Calgary EMS form dated 2006/05/20 at 20:32:25 hrs. which indicates on examination: No SOB (which I interpret to mean no shortness of breath), no chest pain, no abd pain, no obvious trauma noted, PT walks with normal gait, has normal speech, equal motor power, stable vital signs. [ 28 ] It would appear from that document that at that time – which precedes the assault – there were no complaints.

At later times listed on that document, and after the time of the assault, there are references to chest tightness and feelings of cold as well as some concern about heart rate but no complaint about bruising or pain in the area of the right rib cage. [ 29 ] While there appears to be a lack of medical evidence concerning the rib area, I am prepared to accept the plaintiff ’ s evidence

that he did have some light bruising and pain and discomfort for a short period of time in relation to his right rib area and that it wasprobably caused by the three distraction blows administered by Sgt. Williams. However, these were minor and transitory with thebruising essentially resolved in a week and the discomfort gradually resolving over the next couple of weeks. C. What general damages should be assessed? [30] Had I found liability in this case then, having regard to the minor nature of the injuries suffered by the plaintiff, I would haveassessed his general damages for assault and battery at $2500. D.

Should aggravated or punitive damages be assessed? [31] Aggravated damages are different from punitive damages. The purpose of aggravated damages is to compensate; punitivedamages are designed to punish and deter: Chopra v. T.

Eaton Company Limited 1999 ABQB 201 at para.221. [32] As to aggravated damages, the court in Chopra said at para. 220: Aggravated damages are designed to compensate a plaintiff for injured feelings where it was caused by malicious or outrageous conduct.Usually, the proper way to deal with aggravated damages is to merely increase the general damage award in accordance with theaggravating conduct of the tortfeasor.... [33] Here, I can find no malicious or outrageous conduct on the part of Sgt. Williams.

If, contrary to what I have found above, thethree blows he struck were an unreasonable use of force, it was no more than an error of judgment made in the heat of the moment. Therewas nothing malicious about it and I do not see it as being “outrageous”. I therefore decline to award aggravated damages and I seenothing by way of an aggravating factor to increase general damages. [34] As to the issue of punitive damages, the Supreme Court of Canada in Hill v.

Church of Scientology of Toronto (SCC), [1995] 2 S.C.R. 1130 said at p.1208: Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that itoffends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation.Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge express itsoutrage at the egregious conduct of the defendant.

They are in the nature of a fine which is meant to act as a deterrent to the defendantand to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in thosecircumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishmentand deterrence. [35] Had I found liability in this case, there is nothing in the evidence which convinces me that the defendants’ conduct wasmalicious or so oppressive and high-handed as to warrant an award of punitive damages in accordance with the principle set out above inHill.

Conclusion [36] For the reasons set out above, the plaintiff’s claim is dismissed. [37] Provisionally, I assess general damages at $2500 and decline to award aggravated or punitive damages.

[ 38 ] Costs may be spoken to if necessary. Heard on the 19 th to 23 rd day of March, 2012. Dated at the City of Calgary, Alberta this 4 rd day of September, 2012. C. S. Brooker J.C.Q.B.A. Appearances: Clint Ford, Esq. For the Plaintiff Doug Merchant, Esq. Ms. M. Lai for the Defendants