Turton v Hanson, 2016 ABQB 343

Court of Queen ’ s Bench of Alberta Citation: Turton v Hanson, 2016 ABQB 343 Date: 20160621 Docket: 1101 06825 Registry: Calgary Between: Stanley Guy Turton Plaintiff - and - Rick Hanson, Mark McCullough and Tim Shust Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction [ 1 ] The Plaintiff, Stanley Guy Turton (“Turton”), seeks damages from the Defendants for assault, battery, false arrest, false imprisonment, breach of his

section 9 Charter right, and malicious prosecution, in relation to an incident at the Cash Casino in Calgary, during the early morning hours of May 1, 2010. In particular, he alleges that the defendants Mark McCullough and Tim Shust, both members of the Calgary Police Service (CPS), were not authorized to detain him, or to use any physical force against him, when they responded to a complaint that three drunk men were refusing to leave the Casino. In addition to his claim for general damages, he seeks to be reimbursed for legal fees in the amount of $3,150 he incurred in defending himself against criminal charges arising from this

incident, but ultimately withdrawn by the Crown. [ 2 ] Rick Hanson was the Chief of the CPS at the time of the alleged incident and is named as a defendant in this action pursuant to the Police Act , RSA 2000, c P-17, s 39(2). [ 3 ] This is not a case of excessive force. The parties agree that if the police were authorized to use physical force against Turton in the circumstances, then the force described at trial was reasonable and Turton was not legally entitled to defend himself against such force.

The central question is whether or not the constables were authorized in the circumstances to detain Turton in the manner in which they did, including making physical contact. In other words, were the officers authorized to use force at all? [ 4 ] The trial of this action took place in Calgary on October 5–7, 2015. At the conclusion of the evidence and oral argument, I reserved my decision. These are my reasons for judgment. Facts [ 5 ] Turton is an information technology consultant who resides in Calgary. At the time of the incident on May 1, 2010, he was employed at Nexen Energy.

He was not married at the time, but now has a wife and two children. He is 6’ l” tall and weighed approximately 195 lbs. on the date of the incident. [ 6 ] Cst. McCullough and Cst. Shust are members of the CPS and were acting in the course of their duties of employment on the date of the incident. [ 7 ] Cst. Shust has been a member of the CPS for 10 years. He is 5’ 7” tall. Cst. McCullough has been with the CPS for eight years, prior to which he worked for five years with the police service in Northern Ireland.

He is 6’ 2” tall. [ 8 ] Turton attended the Cash Casino with his friends Steve Ribest (“Ribest”) and Michael Siewert (“Siewert”) on April 30, 2010. They arrived at approximately 8:00 p.m. Turton consumed eight or more Red Bull vodka beverages over the course of the evening and knew that he was incapable of driving a motor vehicle afterward. He agreed that he had consumed more alcohol that evening than was his normal practice. [ 9 ] Siewert testified that he consumed six or seven “potent” alcoholic beverages himself, that they were all drunk, and that the alcohol had a significant effect on him.

However, he denied that this was a significant amount of alcohol for any of the three individuals in the group. Siewert has been friends with Turton for 13 years and has seen him under the influence of alcohol before. He testified that alcohol consumption does not cause Turton to act violently. [ 10 ] When the tables closed at the casino at approximately 2:00 a.m., Turton and his friends had stopped drinking and were playing video lottery terminals (VLTs). Turton and Siewert were together when, according to Turton, a security guard approached them and advised that they had broken one of the VLT machines.

According to Turton, neither he nor Siewert understood what was happening as both of the machines they were using were operational. The guard told them not to leave the area while casino security personnel checked the video surveillance recordings. In cross-examination, Turton acknowledged that both he and Siewert were upset when this happened. [ 11 ] Siewert testified that he was with Turton when the handle came off one of the slot machines with which he, Siewert, was playing. The two men joked about what had happened and just set the handle down.

Siewert’s evidence was that a security guard arrived 5–10 minutes later and told them that they were not allowed to leave. He and Turton were separated from Ribest, who Siewert believed was then holding the slot machine handle. They were advised that the police had been called. According to Siewert, the police arrived less than 15 minutes later. [ 12 ] The security guard moved Turton and Siewert to a different area of the casino and advised that security planned to check the security video to determine what had happened. Ribest was taken to a separate area close by.

According to Turton, the men waited 30– 45 minutes. Turton questioned the security guards as to why they were being held when they had not done anything wrong to any of the machines. [ 13 ] Constables Shust and McCullough were on duty during the early morning hours of May 1, 2010. They received a call at 2:50 a.m. to attend the Cash Casino to deal with three drunk males who were allegedly refusing to leave. They arrived at approximately 3:00 a.m.

The CPS Event Detail Report (Exhibit #5) indicates that the CPS officers were dispatched at 2:55 a.m., arrived at 3:01 a.m., departed the casino at 3:57 a.m., arrived at the hospital at 4:07 a.m., and departed the hospital at 5:00 a.m. The Report also indicates that EMS was OTW (on the way) at 3:20 a.m. An EMS reference number is noted at 3:21:19 a.m.. [ 14 ] Turton’s encounter with the CPS officers was captured on the Cash Casino’s security video. A copy of this video, which is less than one minute in duration, was entered into evidence (Exhibit #3).

The video offers a partial view of the events in question and is of relatively good quality. [ 15 ] When the police officers arrived at the casino, they were met by a security guard who pointed across the room to Turton as one of the three drunken males. The guard also reported that Turton may have been involved in damaging casino equipment. At the time, the police observed that Turton was in a loud, apparently heated, conversation with another security guard. Turton was drunk and agitated. [ 16 ] Constables Shust and McCullough approached and stood facing Turton. Cst. Shust was on Turton’s left side and Cst.

McCullough on his right. Cst. Shust advised Turton that the two officers were there to investigate whether one of the members of his group had broken a VLT machine. Cst. McCullough told Turton that he could not leave, to which Turton responded in a loud voice, “Fuck you, I’m leaving.”

[ 17 ] The video, which does not have audio, shows Turton looking at, and speaking to, Cst. McCullough with his left arm extended and open hand raised in the air, not far from where Cst. Shust was standing. Turton looks back and forth between the two officers as he addresses them. Cst. Shust grabs Turton’s left forearm and brings it down without releasing his grip. Within two seconds, Cst. McCullough grabs Turton’s right arm and pulls him forward. Turton appears to resist the officers’ attempts to restrain him. A struggle ensues and the men end up on the ground.

Turton’s Account [ 18 ] Until he saw the officers approaching, Turton testified that he was not aware that the police had been called. Turton acknowledged that he was upset when the police arrived as his friend Siewert was being accused of having vandalized a VLT. Turton told them that he and his friend had not broken anything. He testified that he asked why they were being held and acknowledged that he might have sworn. He was unable to recall any further conversation.

I am satisfied that Turton told the police officers, “Fuck you, I’m leaving.” [ 19 ] Turton believed that he had a right to leave, but was aware that he would not be permitted to leave. He pointed to one of the slot machines and said that they did not break it. At that point, one of the officers grabbed his left arm and threw him up against the wall. At the time, Turton’s right arm was down by his side, just below his waist.

In cross-examination, he conceded that his right hand appears to be clenched in a fist when it was grabbed. [ 20 ] Turton testified that he was not too sure what happened, but that attempted to pull away from the officers and was backing up. He agreed that he was trying to get away. He maintained that he was protecting himself. After they grabbed him, Turton recalled that the police threw him up against the wall and then took him to the ground. The police were hitting him in the head while he was on the ground. At one point, one of the police officers was choking him and he almost passed out.

He also conceded that he grabbed Cst. McCullough’s arm with both of his hands when he was being choked. [ 21 ] Turton then saw one of the officers reach for his taser, at which point Turton told him “don’t tase me, don’t tase me”. The other officer then put him to the ground and handcuffed him. [ 22 ] Turton insisted during his examination and cross-examination that his hands were restrained with zip ties, not handcuffs. He claimed to have seen them when they were ultimately removed at the hospital.

He acknowledged that the police may have asked him if he was done fighting and he may have responded, “Yes, I’m done.” [ 23 ] Turton had no recollection of punching or kicking, though the security video recording of the incident (Exhibit #3) clearly reveals otherwise. He has limited recall of what transpired at this point, and offers no explanation for the fact that his fists are clearly clenched in the video at this point in time.

He also testified that he never heard the word “arrest” prior to being told to stop resisting arrest. [ 24 ] Turton says that he was hit on the head a couple of times “at least.” He was aware that his lip was bleeding as he saw blood on the carpet while he was lying on the floor. He did not, however, become aware of the extent of the injury or, indeed, that he was cut, until he was taken to the hospital. According to Turton, the police were unable to summon an ambulance to take him to the hospital. He was adamant that EMS did not attend to him at the casino at any time.

The police drove him to the hospital in the back of a police vehicle, still in handcuffs. The handcuffs were not removed until he reached the hospital and Turton told the police that he would not struggle if they were removed. At the hospital, he received 17 stitches to the inside and outside of his lip to close the wound. [ 25 ] According to Turton, he was left lying on the ground for fifteen minutes before one of the officers brought him to his feet and had him sit on a stool. He testified that he then spent 45 minutes sitting on the stool while one of the police officers went to check the security video.

When the officer returned, he told Turton that a review of the video revealed that he had not vandalized anything at the casino. He acknowledged in cross-examination that the police were courteous in their dealings with him following the scuffle. [ 26 ] At the hospital, he was placed under arrest and given some documents, but was never advised of his

section 10(

b) Charter right to counsel or told why he was in handcuffs. At the hospital, he was told he was being charged with assaulting a peace officer and resisting arrest. He specifically recalled being told why he was being arrested, but was never provided any information regarding the availability of free duty counsel. He denied that he was ever taken to a room at the hospital where a telephone was made available to him to contact counsel. The police remained with him at the hospital for about one hour before they departed. [ 27 ] Turton acknowledged that Cst.

Shust was considerably shorter in stature than himself and that, when he raised his left arm during the encounter, it was at the level of Cst. Shust’s head. He concedes that when the police officers grabbed him, he attempted to pull away. His recollection is that he was being choked just before the Taser incident. When viewing the video, Turton acknowledged that his hands and feet were moving and that he was trying to get away, while the police were attempting to get him onto his stomach so as to handcuff his hands behind his back.

He denied that the repeated movements of his feet off the ground, as depicted in the video, were an attempt to push the police officers off of him. [ 28 ] Turton conceded during cross-examination that he was struggling to get away at the same time that he was telling the police officers that he was not resisting. He was adamant that he never attempted to strike Cst. McCullough. Siewert’s Account [ 29 ] Siewert recalled the security guards advising them that the police had been called before they arrived.

However, he had no recollection of what Turton or the police officers said when they first encountered each other. He specifically had no recollection of Turton swearing at the police officers and maintained that the tone of the conversation was “normal” and that Turton was not using a raised voice. In cross-examination, he acknowledged that Turton took a step forward towards the police, that words were exchanged between Turton and the police officers, and the police then grabbed Turton.

[ 30 ] Siewert stated that Turton was “talking with his hands” before the police grabbed him. He acknowledged that Turton’s left hand was in a partial fist, while his right hand was by his side at waist-level. He did not recall Turton swearing at the police officers, nor did he recall the specifics of the conversation. [ 31 ] Siewert maintained that he and Turton were glad that the police had been called as they simply wanted to explain what had happened so that they could leave the casino and go home.

He told the security guards that he was the person who had held the broken video machine handle. [ 32 ] Siewert departed the scene at the direction of the police officers after Turton had been restrained and was standing on his feet. He acknowledged that the entire incident happened very quickly, all within 20–30 seconds. He provided very little detail in terms of what transpired. The lack of detail in his description of what happened, together with his admitted excessive consumption of alcohol, leads me to the conclusion that his evidence is not particularly reliable. Cst. Shust’s Account [ 33 ] Cst.

Shust had never met Turton prior to this date and knew nothing about him. He was unaware as to whether or not Turton was armed with any kind of weapon. Given that Turton had already been told that he could not leave and had responded in a negative fashion, Cst. Shust was uncomfortable having Turton’s hand up in front of his head. Cst. Shust concluded that Turton, though apparently drunk, was capable of throwing a punch. He then grabbed Turton’s left hand and brought it in front of his body to let him know that he was not free to leave. At that point, Cst.

Shust says Turton’s hand tensed into a fist and he brought his right arm up to waist level, his right hand also in a fist. Turton was looking in Cst. Shust’s direction at the time and Cst. Shust believed that Turton was going to hit him. [ 34 ] After Cst. Shust took hold of Turton’s left arm, Cst. McCullough grabbed Turton’s right arm and the two police officers moved Turton towards a wall. Turton was asked to put his hands behind his back, but refused to comply with this direction. By the time they reached the wall, Cst. Shust had lost control of Turton’s left arm.

The two police officers then took Turton to the ground. [ 35 ] Turton was told to stop resisting, but responded that he was not resisting. According to Cst. Shust, Turton tensed up from the outset of the physical contact and resisted the entire time. When he was on the ground initially, Turton started kicking towards Cst. Shust, who moved to try to get on top of Turton, whose feet were flailing around. He was trying to turn Turton over onto his stomach so that he would not be able to kick and to facilitate handcuffing Turton behind his back.

Turton briefly got to his feet and the two police officers moved across the floor as they attempted to gain control. He was, quickly taken back to the ground and onto his stomach. [ 36 ] Turton was then asked if he was done fighting, to which he responded, “Yeah, I’m done.” He stopped resisting at that point and Cst. McCullough placed him in standard issue handcuffs. Turton was finally brought to his feet and seated on a stool. [ 37 ] In cross-examination, Cst.

Shust conceded that the notes he made right after the incident, as well as a “will say” statement prepared at a later date based on those notes, indicate that Turton had both of his arms raised and both fists clenched. Upon reviewing the security video, Cst. Shust acknowledged that his notes and “will say” statement were inaccurate and, as such, his recollection of the incident shortly after it concluded was also inaccurate in this regard. He did not, however, view the video until April 2012, long after the completion of his notes and “will say” statement. Cst. McCullough’s Account [ 38 ] Cst.

McCullough testified that, as the two officers approached the area where Turton and one other male were standing with a casino security guard, he heard Turton say “I’m fucking leaving” in a loud voice. At that point the security guard backed off with his hands raised. Turton took a step forward at which point Cst. McCullough briefly placed his hand on Turton’s chest to prevent him from advancing further and to let him know of the police presence. Turton then stopped and looked at Cst. McCullough. Cst. McCullough concluded at that point that Turton was intoxicated and angry.

He told Turton that he was not leaving until the police determined what had happened. Turton responded by saying “fuck you” in an angry tone. Cst. McCullough perceived Turton to be under investigative detention once he was told that he was not free to leave. [ 39 ] Turton brought his right fist up in front of Cst. McCullough who then grabbed Turton’s right arm. Prior to seeing Cst. Shust secure Turton’s left hand in front of his body, Cst. McCullough was unaware of the placement and/or the actions of Turton’s left hand and arm. Cst. McCullough was concerned that Turton would strike Cst.

Shust as Turton was within a bent arm’s reach of Shust. [ 40 ] Cst. McCullough pulled Turton forward to destabilize him and get him off balance. Turton pulled his arm from Cst. McCullough’s grip and his arm was raised up in a cocked stance. As the standard arm grip technique had failed, Cst. McCullough made the decision to take Turton to the ground. There was a short struggle on the ground as Turton was thrashing around with his arms and legs. Cst. McCullough delivered one closed fist punch to Turton’s head area after Turton’s flailing hands came close to McCullough’s head. Cst.

McCullough was not certain where the punch landed as Turton’s head was also in continual motion. [ 41 ] Cst. McCullough withdrew from the struggle on the floor as Turton and Cst. Shust continued to struggle. Cst. McCullough drew his Taser from his holster and told Turton that he had a Taser and would use it. He made the decision to draw his Taser on the basis that the punch had been unsuccessful in securing Turton’s compliance. Turton responded, “don’t tase me.” Turton briefly got back on his feet with Cst. Shust behind him, but then the two went back down to the floor. At that point, Cst.

McCullough re-holstered his taser. He then heard Cst. Shust say “Are you done?” to which Turton responded, ‘‘I’m done.” During the struggle, both officers told Turton to stop resisting. Turton responded that he was not resisting. [ 42 ] Cst. McCullough took Turton into custody and handcuffed him behind his back with standard issue handcuffs. [ 43 ] In cross-examination, Cst. McCullough conceded that the notes he made relative to this incident do not make reference to Turton’s raised arm and fist immediately prior to Cst. McCullough grabbing the right arm.

He acknowledged his notes suggest the fact that Turton was becoming confrontational was the most noteworthy factor at the time.

The Aftermath [ 44 ] The police officers noticed that Turton was bleeding from a cut on his lip. They contacted their dispatch to arrange for the attendance of EMS. [ 45 ] Cst. McCullough then went to check the casino video footage and determined that Turton was not responsible for breaking the VLT. Casino personnel advised the police that they intended to pursue the matter through a civil remedy, at which point Cst. McCullough concluded that the police had no further role. [ 46 ] EMS arrived at the casino and checked Turton’s cut lip.

They determined that he required stitches and that there was nothing more they could do to assist. [ 47 ] Before leaving the casino, Cst. McCullough arrested Turton at 3:51 a.m. for assault and resisting arrest. Cst. McCullough was satisfied that Turton understood the reasons for his arrest. He advised Turton of his right to counsel from a card that he carries with him at all times. A copy of this card was marked as Exhibit #4. When asked if he wished to contact a lawyer, Turton responded, “Yes, I should.” [ 48 ] The officers took Turton to the Rockyview Hospital to be seen by a doctor.

He was transported in handcuffs in the back of the police vehicle. The handcuffs were removed once they were inside the hospital. The officers waited with Turton until he could be seen by medical personnel. [ 49 ] The officers made inquiries at the Rockyview Hospital regarding the availability of a room where Turton could have an opportunity to speak privately to a lawyer. By the time they left the hospital at around 5:00 a.m., the hospital staff had been unable to accommodate this request. Before the police left the hospital, they served Turton with an appearance notice.

Turton was very quiet and said very little to the police once he was placed in handcuffs. [ 50 ] Cst. Shust believed that he had reasonable grounds to detain Turton for investigative purposes based on the information provided by the casino security guards that Turton or one of his friends had damaged a VLT. As such, the investigative detention related to possible criminal charges of mischief to property. [ 51 ] Cst. Shust was the primary investigator assigned to Turton’s file.

He conceded that Turton was never questioned after May 1, 2010, and that no statements were obtained from any witnesses at the casino right after the incident. He also acknowledged that he did not obtain names or contact information from potential witnesses that night. It was not until November 27, 2010, that Cst. McCullough returned to the casino to obtain written statements from casino staff. [ 52 ] A copy of the casino’s security video depicting the interactions between the CPS officers and Turton (Exhibit #3) was provided to the Crown in November 2010 following an email request for the video. Cst.

Shust believed that Cst. McCullough was going to collect the video after the fact, but this did not happen. Constables Shust and McCullough ceased to be police partners at some point following the incident and were not in regular communication. Cst. McCullough requested a copy of the security video on May 1, 2010, but no one was available to make a copy at that time. [ 53 ] Turton was charged in an information sworn May 11, 2010 by Maria Sit, a peace officer with two counts of assaulting a peace officer in the execution of his duty and with resisting arrest.

He first appeared in the Provincial Court of Alberta on July 16, 2010, at which time the Crown elected to proceed by

summary conviction. Turton’s criminal defence counsel pre-booked the matter for a half- day trial on December 13, 2010, at which time the Crown withdrew the charges. Turton did not personally attend court on either date. The Crown consulted neither Cst. Shust nor Cst. McCullough on the decision to withdraw the charges. [ 54 ] Turton described the situation as “totally embarrassing.” Until the charges were withdrawn, he worried about the potential impact of a criminal conviction on his employment. He still has a mark on his lip and there is some hard tissue around the location where the cut was stitched closed.

He missed one half-day of work as he had to go to the police station to be photographed and fingerprinted. He was brought up believing that he could go to the police when he needed help. As a result of this experience, he now questions the actions of the police “as they may beat you up.” CPS Policy & Training [ 55 ] Cst. Shust described four categories of detainees: (1) cooperative, (2) passive, (3) active resisters, and (4) assaultive. He was trained to apply the least amount of force required to secure compliance dependent upon the level or degree of resistance.

In this regard, he described Turton’s behaviour as aggressive in that he tensed up and raised his fists almost immediately. He concluded that Turton’s conduct initially fell under the category of active resistance. When Turton was on the floor and kicking, Cst. Shust concluded that this behaviour fell within the assaultive category and that the police objective was to then turn him onto his stomach to prevent further kicking. [ 56 ] Staff Sergeant Robert McFadyen testified as the official representative for the Chief of Police. He has been a member of the CPS since September 1999. [ 57 ] S/Sgt.

McFadyen gave evidence regarding the CPS Use of Force Policy (Exhibit #6). He described the physical control and restraint training that police recruits receive during their six-month training program. This program includes training focused on the assessment of human behaviour. In addition, all CPS officers receive annual training on control techniques, including the use of intermediate weapons. [ 58 ] S/Sgt.

McFadyen made specific reference to the “Use of Force Techniques” portion of the Policy and the various options that are available to police officers in dealing with individuals under lawful arrest or detention, including officer presence (the identified

physical presence of an officer), communication (verbal and non-verbal), physical control techniques, intermediate weapons, and lethal force. [ 59 ] The Policy contains the following specific provisions regarding the application of force (at p. 4):

a) After evaluating the incident, police officers select the force option they believe is reasonably necessary to safely control the situation.

b) The use of force in any situation must be continually evaluated with respect to further police action. The police officer may need to escalate, de-escalate or disengage from the incident.

c) A police officer in control of a subject is not relieved of his or her responsibilities regarding force until custody is transferred to another officer or the subject is released. [ 60 ] S/Sgt. McFadyen also referred to “lower level controls” such as a touch on the arm or a shoulder to ensure that a person knows they are being addressed and/or directed by a police officer. [ 61 ] He testified that when dealing with detainees who are assaultive or active resisters, it is incumbent upon the police officer to get control of the situation and the subject to avoid injury to the officer or to others.

He stated that when attempting to physically control movement, one will typically sense movement before actually seeing it. Finally, he stated that the use of force must always be reasonable and the least aggressive or intrusive that the circumstances allow. [ 62 ] In cross-examination, S/Sgt. McFadyen confirmed that police officers are trained on disengagement techniques. He went on to state that disengagement is frequently employed when dealing with individuals who are threatening self-harm and that using disengagement techniques does not mean that the police simply walk away from a situation.

Issues [ 63 ] This action raises the following issues: 1. Did the officers’ actions constitute assault and/or battery? 2. Were the officers authorized by law to apply force to Turton? a. Did the officers have reasonable grounds to suspect that Turton was connected to a recent or on-going criminal offence? b. Was the detention, including the officers’ application of force, reasonably necessary in all of the circumstances? c. In the alternative, did Cst. Shust act in self-defence in taking hold of Turton’s left arm? 3. Did the officers’ actions constitute false arrest and/or false imprisonment? 4.

Did the officers’ actions violate Turton’s

section 9 Charter right not to be arbitrarily detained? 5. Has Turton proven the tort of malicious prosecution on a balance of probabilities? Analysis [ 64 ] I approach the evidence of Turton or Siewert with considerable caution. I am satisfied that they were severely intoxicated at the time of their interaction with the Defendant police officers and, as such, their description of the events in question is not reliable.

In an email exchange between Turton and Siewert dated May 3, 2010, in which they discuss the events in question, Siewert responded to Turton’s comment that he was “pretty embarrassed by the whole thing” by stating, “Definitely embarrassing...for all of us...I think we should probably stop drinking like that...” Turton agreed: “And yeah, no more vodka redbulls and no more drinking like that.” [ 65 ] Even more telling is the fact that Turton poses the following question to Siewert: “I didn’t touch the cop before the whole thing happened, right?” [ 66 ] What I take from this exchange is that Turton and Siewert acknowledge that they were drinking heavily on the night in question and, indeed, that Turton’s recollection of the events is not entirely clear.

In cross-examination, Turton conceded that this comment reflects his apparent uncertain recollection of what had transpired that evening. He also conceded that he and his companions were drunk that evening and that some of the details of the events in question are a bit hazy. [ 67 ] In finding the testimony of Turton and Siewert unreliable, I am not questioning their credibility or the honesty of their recollection of the events in question.

Rather, I am satisfied that they were significantly intoxicated by the time the police arrived and had limited—in some instances, very limited—recollection of the key events, including the verbal exchanges with the police officers. For example, Turton had no memory of EMS’ attendance at the scene and, indeed, testified that they did not come. This is plainly contradicted by the CPS Event Detail Report and the testimony of the officers, which I find to be more reliable. I also find that there are significant gaps in Siewert’s evidence generally.

His testimony added very little to understanding what actually took place. [ 68 ] Furthermore, in cross-examination, Turton acknowledged that he and Siewert discussed what happened that evening after the fact and “how I [Turton] got beaten up.” He was also aware that Siewert had seen the video of the incident.

[69] The existence of video evidence of an event is an invaluable source of reliable information. It is considered to be morereliable than eyewitness testimony: R v Nikolovski, (SCC), [1996] 3 SCR 1197 at para 26. Where there areinconsistencies between the witness evidence and the video in terms of the actual physical event, I prefer the evidence of the video. It iscertainly of assistance in establishing the chronology and timing of events. However, I am alive to the frailties of relying on the videoevidence alone and recognize that it does not paint the entire picture of the event in question.

I am also cognizant of the fact that it haslimitations, notably that there is no audio and the latter portions of the physical struggle are not captured. Portions of the struggle are alsoobscured, either because some of the participants are blocking the view or other obstacles stand in the way. Accordingly, it is importantto consider the video in conjunction with all of the other evidence. 1. Did the officers’ actions constitute assault and/or battery? [70] The Plaintiff says that the officers’ use of force against Turton constituted both an assault and a battery.

The Defendantsconcede that unwanted force was applied to Turton, but, as more fully described below, goes on to argue that the officers were authorizedto use force either to enforce a valid investigative detention, or as self-defence against Turton’s aggressive behaviour. [71] In the civil context, an assault occurs when: (

a) one has an intention to cause harmful or offensive contact or to cause the imminent apprehension of such harmful or offensive contactto another person; and (

b) the other person is actually put in such imminent apprehension. Context is key to the analysis of whether an assault has occurred. The plaintiff must not only subjectively believe that he is in danger ofharmful or offensive contact, his belief must also be reasonable in the circumstances: Mainland Sawmills v USW Local, 2007 BCSC1433 at para 98. Practically speaking, that usually means either that the tortfeasor will have had the means to carry out the threat, or itwas at least reasonable to believe that he had the means: Stephens v Myers, [1830] 172 ER 735; Tuberville v Savage, [1669] EWHC KBJ25. [72] By contrast, a battery occurs when (

a) one has an intention to cause harmful or offensive contact or to cause the imminent apprehension of such harmful or offensive contactto another person; and (

b) harmful or offensive contact results. Whether a particular action constitutes battery is also highly context-specific. Any touching, however slight, can constitute a battery.Unlike cases of negligence, battery is actionable without proof of damages because “every person’s body is inviolate”: Non-MarineUnderwriters, Lloyd’s of London v Scalera, 2000 SCC 24, at para 2. [73] Assault and battery are not coterminous; however, an assault will often immediately precede a battery.

In the classic example,an individual who is punched in the face will have sustained both an assault and a battery: if he could see the punch coming beforeharmful contact resulted, then an assault and battery will have likely occurred in rapid succession. [74] Courts occasionally ignore this distinction between the two torts because the quantum of damages for assault will generally besmall in the absence of injury: Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 10th ed (Toronto: LexisNexis, 2015) at s 2.43.For example, in Mann v Balaban et al, (SCC), [1970] SCR 74 at 87, a majority of the Supreme Court held that: “[i]n an action for assault...it is for the plaintiff to prove that he was assaulted and that he su[s]tained an injury thereby. [...] Then it isupon the defendant to establish the defences, firstly, that the assault was justified and, secondly, that the assault even if justified was notmade with any unreasonable force....” The Court of Appeal adopted this abridged formulation of the law in Crampton v Walton, 2005 ABCA 81, at para 3.

However, in myview, it is helpful to maintain the distinction between an assault and a battery because each tort is actionable on its own without proof ofinjury. The nature and extent of physical injury, if any, goes to the quantum of damages, rather than to proof of the tort. [75] In the absence of a valid defence, I am satisfied that Cst. Shust and Cst. McCullough’s conduct constitutes assault and battery.Grabbing his left and right arms was clearly offensive to Turton, who had already expressed a desire to leave in direct defiance of theofficers’ orders to stay.

The police officers’ contact was direct and intentional. None of the evidence suggests that Turton consented tothe officers’ touching, which was more than trivial contact and is not “generally acceptable in the ordinary conduct of everyday life,”especially in light of the officers’ status as agents of the state: Underwriters at paras 19, 106. In Collins v Wilcock, [1984] 3 All ER 374(QB), Goff LJ held that a police officer who took hold of a woman’s arm to restrain her movement without lawful authority committed abattery. See also Durand v Edge, 2008 ABQB 44, at para 33, for a similar proposition.

It is also clear from the video that Turton wasfacing the officers when they took hold of his arms, which leads me to conclude that he saw the officers’ hands coming towards him andwas thus put in imminent apprehension of harmful or offensive contact right before they touched him. Turton’s apprehension wasreasonable in the circumstances based on the officers’ proximity to him and their words, which purported to restrict his movement. [76] The officers’ subsequent blows, together with Cst.

McCullough’s threat to use his Taser against Turton, also constitutedassault and battery, unless the officers can prove that they have a defence. 2. Were the officers authorized by law to apply force to Turton? [77] After a plaintiff establishes the facts supporting assault and battery, the onus shifts to the defendants to prove that they have a

defence to civil liability: Underwriters at para 8. According to the Criminal Code, RSC 1985, c C-46, s 25(1): Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

b) as a peace officer or public officer, 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 necessaryfor that purpose. [78] While this provision is found in the Criminal Code, courts have held that it insulates police officers from both criminal andcivil liability when they act under legal authority: R v Asante-Mensah (2001), (ON CA), 204 DLR (4th) 51 (Ont CA)at para 51, aff’d 2003 SCC 38. In Crampton at para 6, the Court of Appeal held that to access this section’s protection, a police officermust prove on a balance of probabilities that he: (

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. [79] To be clear, this

section does not confer powers on the police that they do not otherwise possess (Crampton at para 5); rather,it codifies what the common law has long recognized, which is that a defendant is not liable in tort for something he is otherwiseauthorized to do by law. The second and third branches set out in Crampton impose additional limits on the exercise of that authority. [80] Regardless, the issue is whether the officers’ use of force against Turton was authorized by law. If it was, then the officershave a complete defence.[1] If it was not, then the Defendants are liable for assault and battery.

Constables Shust and McCullough arguethat their use of force in this case was authorized by the common law on investigative detention. The Plaintiff, while seeminglyconceding that a police officer engaged in an investigative detention may resort to reasonable force in exceptional circumstances, arguesthat the facts of this case fall far short of situations where force is reasonably necessary. The Law on Investigative Detention [81] There is no dispute between the parties that Turton was “detained” in fact and as that term has been interpreted in law: see R vGrant, 2009 SCC 32, at para 30.

Constables Shust and McCullough had clearly restricted his physical movement by their words andconduct. Once Cst. McCullough told Turton that he was not free to leave, a reasonable person in his position would have concluded thatthe officers meant what they said and that he had to comply. [82] The officers’ defence turns on whether the detention was lawful. Police do not have a general power to detain an individualfor investigative purposes: R v Mann, 2004 SCC 52, at para 17.

What they have instead is a contextual, case-by-case frameworkaccording to which courts will adjudicate the bounds of a police officer’s common law authority, recognizing that officers may bejustified in detaining an individual for investigative purposes where doing so is reasonably necessary on an objective view of thecircumstances.

In Mann, Iacobucci J. described that framework as follows (at paras 34–35): The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’ssuspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable groundsfigures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated inthe criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed againstall of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’sduty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.(emphasis added) [...] While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in theexercise of that duty.

Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion uponthem must not be taken lightly and, as a result, police officers do not have carte blanche to detain.

The power to detain cannot beexercised on the basis of a hunch, nor can it become a de facto arrest. [83] For greater certainty, Iacobucci J. summarizes the test for determining whether an investigative detention was authorized bylaw at para 70: ...police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstancesthat the individual is connected to a particular crime and that such a detention is necessary. [...] [T]he detention...must be conducted in areasonable manner. a.

Did the officers have reasonable grounds to suspect that Turton was connected to a recent or on-going criminal offence? [84] As Mann suggests, the grounds required for a lawful investigative detention are less onerous than the grounds required for alawful arrest.

In both instances, however, an officer’s grounds must be objectively reasonable; but, whereas an arrest requires reasonablegrounds to believe a person is probably implicated in a crime, a detention requires reasonable grounds to suspect a person is possiblyimplicated in a crime: Mann at para 45. [85] I am mindful of the Supreme Court’s caution that a detention is not permitted to become a de facto arrest: Mann at para 35.

The constitutionality of an investigative detention based on the lower standard of reasonable suspicion is tied to the power’s carefully limited scope in time and space: Mann at para 20.

That is why an investigative detention “should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police”: Mann at para 70. [ 86 ] Writing in the context of police sniffer-dog searches, Binnie J. made the following observations about the reasonable suspicion standard in R v Kang-Brown , 2008 SCC 18 at paras 75–77 , dissenting on other grounds: • Reasonable suspicion means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. • A sincerely held subjective belief is not a reasonable suspicion on its own. • The officer’s suspicion must be supported by objectively discernible facts that permit independent judicial assessment. • Reasonable suspicion can arise from information that is less reliable than what is required to show probable cause. [ 87 ] The assessment of reasonable grounds has a subjective and an objective component: Mann at para 27.

The officer must subjectively believe he has grounds to detain the individual and his belief must be objectively reasonable in the circumstances. [ 88 ] I find that Constables Shust and McCullough had reasonable grounds to suspect that Turton was connected to a recent or on- going criminal offence. The officers’ suspicion was supported by the following objectively discernible facts: 1. The officers arrived at the Cash Casino only ten minutes after receiving a report that three drunk males were refusing to leave. 2.

Upon their arrival, a security guard physically pointed to two men who were standing across the room with another security guard. These men were identified as being two of the males who had refused to leave. At this point, a security guard also told the officers that the men broke a VLT machine. 3. As the officers approached, they could hear Turton speaking in a raised voice and saw him take steps toward a security guard who was backing away with his hands raised in the air. Turton was clearly arguing with casino staff. 4. Cst.

McCullough’s observations, together with the information that he received, led him to conclude that Turton was intoxicated. [ 89 ] The officers’ suspicion was not limited to Turton, who was one of two men alleged to have damaged casino property, but it was sufficiently specific to him as that term is used in the law. The officers’ suspicion had nothing to do with generalized assumptions about the location, a reputation for criminal activity, or Turton’s appearance.

It was not a situation in which the police detained him “simply because he was walking in a downtown alley at 2:00 a.m. and they had a hunch he might be doing something illegal”: R v Yeh , 2009 SKCA 112 , at para 76 . Cst. Shust and Cst. McCullough’s suspicion was not based on a “hunch.” It was specifically based on what they observed that night and what they were told by security personnel whose primary job was to supervise the activities of patrons and maintain order at the casino. Furthermore, they were investigating a specific crime—namely, mischief to property contrary to s. 430(1) (

a) of the Criminal Code . Thus, there was a clear nexus between Turton and a recent or on-going criminal offence. [ 90 ] Turton’s counsel contends that what the officers found was inconsistent with what they were looking for—three people who did not want to leave. Instead, they found one person who, by all appearances, did want to leave. This, he says, is evidence that suggested a different group of people were implicated in the offence. I disagree.

Not only did security specifically point to Turton’s group as having damaged casino property, he was also engaged in a loud conversation with another security guard at the time. The police were not directed to any other group of people and there is no evidence that the CPS received another call in relation to the Cash Casino that night. It seems to me that counsel is inviting this Court to speculate as to the possible existence of some other group of intoxicated men refusing to leave the casino that evening.

I am not prepared to do so. [ 91 ] I am not persuaded that the fact that Turton might have at one point refused to leave and at another insisted upon leaving is inconsistent. It certainly does not change my assessment as to the objective reasonableness of the officers’ suspicion. The police received a report of three drunk males who refused to leave and, by the time the police arrived shortly thereafter, security indicated that the group still had not left.

Coupled with the Casino security’s suggestion that they broke a VLT, the officers had reasonable grounds in the circumstances to suspect that Turton was implicated in a specific crime. [ 92 ] I accept the officers’ evidence that the purpose of Turton’s detention was, in fact, to investigate his suspected involvement in mischief to the casino’s property. [ 93 ] There is some debate in the case law as to whether an investigative detention is authorized in relation to a suspected offence, rather than one which is known to police.

For instance, one could argue that the officers in this case merely suspected that an offence had occurred based on what the security guard told them. Certainly, neither Cst. Shust nor Cst. McCullough bothered to verify that property had been damaged before they approached Turton. In this way, mischief was not a known offence. [ 94 ] The Saskatchewan Court of Appeal considered the issue of whether Mann authorizes an investigative detention in the context of a suspected-but-not-known offence in Yeh at paras 84–85 .

In Yeh , the police stopped a vehicle they had observed slowly and gradually drifting from side to side on the highway, suspecting that the driver may have been impaired. As the officers interviewed Yeh, they could not smell drugs or alcohol, but they could see Yeh’s hands shaking. The officers conducted impairment tests, which led them to the conclusion that Yeh had been using marijuana. Despite the signs of narcotic use, the officers could not be sure that Yeh was impaired. Nonetheless, a search of his vehicle produced a significant amount of cash and drugs.

The officers arrested Yeh and charged him with two counts of possession for the purpose of trafficking. Crucially, the officers in that case did not know whether there had been a “recent or on-going criminal offence” before they stopped and detained him. In effect, they used the detention “to determine whether a crime has been or is being committed”: Yeh at paras 79, 102 . In that situation, Yeh was connected only to a suspected offence. This is distinguishable from a situation in which a crime has been reported and there are reasonable grounds to suspect a particular individual

was involved. In this latter situation, the offence is “known” and an investigative detention is clearly permitted if the officer hasreasonable grounds to suspect an individual is connected to that offence. [95] An extended panel of the Court in Yeh ruled that the common law of investigative detention may authorize police to detain anindividual for suspected as well as known offences. Therefore, Yeh’s investigative detention was not rendered unlawful simply becausehe was detained in relation to a suspected offence: see para 103.

This is consistent with the way Mann has been applied in at least oneinstance in the Provincial Court of Alberta, and with the authorities cited by the Supreme Court in Mann: see R v Reid, 2012 ABPC 109at paras 80–83. [96] In any event, while I agree that the power in Mann extends to both suspected and known offences. I am satisfied that thecrime in the present case is properly characterized as a suspected offence. The Saskatchewan Court of Appeal specifically defined“known” offences to include those which have been reported to the police: Yeh at paras 77–78.

Likewise in Mann, where the Courtupheld the investigative detention as valid, the only information the police had that a recent offence had occurred was a radio dispatchreporting a break and enter: see para 4. As a security guard reported the property damage to Constables Shust and McCullough upontheir arrival at the casino, Turton’s detention was thus connected to a known offence. Thus, I would conclude that the power to detainwas open to the officers in respect of the offence in this case. b.

Was the detention, including the officer’s application of force, reasonably necessary in all of the circumstances? [97] Even if the officers had reasonable grounds to suspect Turton was involved in a recent offence, this did not, without more,cloathe them with the authority to detain him. The detention must also have been reasonably necessary in all of the circumstances,having regard to the factors established in Mann and drawn from Waterfield (as previously set out at paragraph 82, above).

To re-iterate,these factors are: i. the extent to which the interference with individual liberty is necessary to perform the officer’s duty, ii. the liberty interfered with, and iii. the nature and extent of that interference. [98] In my view, these factors canvass not only the overall reasonableness of the decision to detain, which is evident from Mann atpara 34, but also the reasonableness of the manner in which the detention is carried out.

The ultimate question is whether the detention asit occurred was reasonably necessary in all of the circumstances. [99] Before turning to this question, the Court must consider a preliminary question that the parties debated at trial—that is,whether the power to detain for an investigative purpose at common law can ever authorize the use of force either to effect the detentionor for some ancillary purpose. [100] The Supreme Court’s decision in Cluett v The Queen, (SCC), [1985] 2 SCR 216, 21 DLR (4th) 306 is oftentaken as standing for the proposition that police officers may not use force or rely on the Criminal Code’s protection in

section 25 unlessan arrest is warranted. In the present case, the officers’ application of force clearly preceded Turton’s arrest, before reasonable andprobable grounds materialized. If Cluett is construed in this way, it would seem to foreclose the officers’ authority to apply force as partof their investigative detention. [101] On the other hand, the Supreme Court rendered its decision in Cluett in 1985, long before Canadian law permitted detentionshort of an arrest. In 2004, the same court recognized in Mann, the existence of a limited common law power to detain an individual forinvestigative purposes.

In Mann at para 43, the Court also recognized the importance of officer safety, going so far as to say police areauthorized to conduct a quick, pat-down search incident to a valid detention when they reasonably believe their safety is at risk. TheCourt did not, however, comment on the use of force in conjunction with an investigative detention. [102] The Alberta Court of Appeal seems to have implicitly authorized the use of force during an investigative detention in Webster vWasylyshen, 2007 ABCA 23. In that case, a woman told police that her father had threatened to “kick the shit out of” her husband.

Shealso reported that her father had illegal firearms stored at his home. When the police sent a tactical unit to the father’s home toinvestigate, the father exited the home with his hands raised in the air. The police immediately forced the plaintiff to his knees andhandcuffed him.

The Court of Appeal found that the amount of force police used was not excessive, thereby reversing the trial judge’sconclusion that the father’s detention was unlawful: Webster at para 41. [103] Turton’s counsel argues that Webster ought to be distinguished as an exception to the general rule in Cluett because thedetention in Webster occurred during the execution of a firearms search, in which case it may be necessary to physically remove a personfrom the premises to preserve evidence or to protect the public.

I note that the Court’s reasons in Webster do not address the propositionadvanced in Cluett; indeed make no mention of Cluett. At the same time, however, the Court does not suggest that its decisionestablished an exception to the test in Mann. On the contrary, the Court held at paras 35–41 that the plaintiff was lawfully detained,applying the test in Mann. [104] I do not take this point—that is, whether the police may use physical force pursuant to an investigative detention short of arrest—as having been settled in law given the conflicting authority on the point. In N(

J) v Horton, 2010 ABQB 767 at paras 56, 64, SullivanJ concluded that “[t]he law does not authorize the use of force in investigative detention,” relying on a pre-Mann decision of this Court inBolianatz v Edmonton (City) Police Service, 2002 ABQB 284 at para 22. By contrast, in R v Nguyen, 2014 BCSC 1499, the BritishColumbia Supreme Court held: There was a measure of force used in the initial detention. I do not understand the law to state that force cannot be used or that the use offorce will make an arrest out of what would otherwise be an investigative detention. The key will be the necessity consideration.

Thepolice may use a reasonable force to effect an investigative detention where circumstances justify that use.

[ 105 ] In Stephen Coughlan and Glen Luther’s text, Detention and Arrest (Toronto: Irwin Law, 2010) at 27, the authors suggest that

section 25 of the Criminal Code likely protects officers from liability for force used during an investigative detention, as well as an arrest. Similarly, in R v Yum , 2001 ABCA 80 at para 12 , a pre- Mann decision, the Court of Appeal approved the use of force to effect a detention. In that case, the officer kicked a suspect in the chest who he was pursuing on grounds short of an arrest, fearing that the suspect was armed. [ 106 ] I am bound by the Court of Appeal’s application of the law in Webster .

As such, I find that the common law may permit force in effecting an investigative detention, assuming that the police can demonstrate that the force applied meets the requirements set out in Mann . I recognize that an investigative detention imposes no obligation on the detainee to answer a police officer’s questions. However, in my view, it may impose an obligation to remain with the officer temporarily so long as the detention is brief and reasonable overall.

In R v Leaf , 2016 ONSC 1974 at para 179 , the court held that informing an individual of the reasons for his detention triggers an obligation to remain with the officer. Similarly, in R v DNS , 2010 NSPC 17 at paras 45 , 52, the court held that the accused youth “had the obligation to remain until such time as the investigative detention became unreasonable.” To this end, limited physical restraint may be authorized as part of a valid investigative detention. [ 107 ] I say “may” because the common law will not always or invariably authorize force in relation to an investigative detention.

This decision simply recognizes that the police power to detain for an investigative purpose can, in appropriate circumstances, encompass the use of reasonable force. This conclusion is supported by the indicia courts consider in determining whether a detention has occurred, which includes evidence of physical restraint: Grant at para 44 . I am satisfied that this is the correct approach, especially in light of Mann ’s requirement that the detention must be conducted in a reasonable manner, which inherently limits the police’s authority to resort to force.

Thus, the reasonableness of using force, generally, to effect an investigative detention is not a foregone conclusion; rather, like the authority to detain for investigative purposes, it depends on the totality of the circumstances and must be reasonably necessary. [ 108 ] In R v Aucoin , 2012 SCC 66 , the Supreme Court of Canada explained what conduct will be found to be “reasonably necessary.” The majority framed the question as follows, at para. 39: Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat—knowing that this would also entail a pat-down search—detaining the appellant in that manner had to be reasonably necessary.

In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did . If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter .... [Emphasis added.] [ 109 ] The detention in Aucoin was not for an investigative purpose as that term is used in Mann .

The investigation had ended. The accused was issued a ticket for violating a common regulatory offence during a traffic stop before being temporarily detained, searched, and placed in the back of a police cruiser.

In this instance, however, the investigation was ongoing and the officers had reasonable grounds to suspect Turton had been involved in a recent criminal offence. [ 110 ] Even though Aucoin is largely distinguishable on its facts, the question as to whether or not the common law authorized the detention depends in both instances on an assessment of reasonable necessity. [2] As such, Moldaver J’s formulation of the question in Aucoin is relevant to his analysis under Mann .

In this case, that means if there were other reasonable means to ensure Turton complied with the investigative detention without touching him, then using force to effect the detention could not be said to have been reasonably necessary and would have thus constituted an unlawful detention within the meaning of

section 9 of the Charter . [ 111 ] Although the Court of Appeal stated in Crampton that police officers are not required to measure the appropriate amount of force to a nicety and “the immediate decisions a police officer makes in the course of duty are not assessed through the ‘lens of hindsight”, (at para 45) one must be careful not to conflate the issue in that case, which was whether the force was excessive, with the issue in this case, which is whether Constables Shust and McCullough were authorized to any force in the circumstances. [ 112 ] The Court of Appeal’s conclusions regarding the importance of avoiding hindsight analysis must be read in context.

In particular, I note that in making these comments the Court was referring to the application of the third branch of

section 25 —whether the officer used unnecessary force—to determine whether an officer may benefit from the Criminal Code ’s protection. While police officers who are otherwise authorized to use force will be excused if, in the exigency of the moment, the officer goes slightly further than absolutely necessary to execute his duty, their use of force must, in the first instance, be authorized by law.

With respect to an investigative detention, that means the manner of the detention, including the decision to resort to physical contact, must have been reasonably necessary in all of the circumstances. [ 113 ] Moldaver J.’s comments in Aucoin at para 40 illustrate this point: Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke’s actions [i.e. detaining Aucoin in the back of his police cruiser, knowing that this necessitated a pat-down search], though carried out in good faith, were not reasonably necessary [and thus not authorized by law].

In other words, the officer in Aucoin did not have the right to be wrong about what was reasonably necessary on an objective view of the circumstances. Extrapolating to the present case, it is not enough that using force was reasonable. It must also have been necessary. If there were less intrusive means to address the officers’ concerns which were also reasonable in the circumstances, then it cannot be said that the manner in which the detention was effected was reasonably necessary. [ 114 ] Turton suggests that I should reject Cst. Shust’s evidence for two reasons.

First, he says that the handwritten notes made by Cst. Shust shortly after this incident and a typewritten “will say” statement made a day or two later both record that Turton initially brought both arms up with clenched fists. Turton points out that this is inconsistent with Cst. Shust’s trial testimony. I agree that the evidence given by Cst. Shust at trial on this point is inconsistent with the account he outlined in his earlier written notes. He acknowledged the

inconsistency during cross-examination and told the court that he did not have an opportunity to review the video prior to preparing his notes and will-say statement. This inconsistency does not undermine my confidence in the overall reliability of Cst. Shust’s evidence. The incident described took place over a split second in the midst of a series of other events. Having had the opportunity to view the video, Cst. Shust readily acknowledged his error. I am satisfied under all of the circumstances of the reliability of his trial evidence on this point. [ 115 ] Turton also suggests that Cst.

Shust gave conflicting explanations during oral questioning and at trial regarding the reason he took hold of Turton’s arm. In questioning, Cst. Shust stated at one point that he took hold of Turton’s arm to let him know that he was being detained. At another point, he suggested that he applied force because he was not going to wait for Turton to hit him. [ 116 ] Cst. Shust gave two reasons for grabbing Turton’s arm. First, he testified that he pulled Turton’s arm down to effect the investigative detention and to make sure Turton understood the police direction that he was not free to leave.

Second, he testified that he feared Turton might try to hit him with his raised hand. I accept Cst. Shust’s evidence in this regard and find that, on a balance of probabilities, both of these reasons played a role in Cst. Shust’s decision to make contact. [ 117 ] With this in mind, I turn now to consider whether the detention, including the officer’s application of force to effect the detention, was reasonably necessary in all of the circumstances of this case.

This question, which is based on the second branch of the test in R v Waterfield , [1963] 3 All ER 659 (CCA) , inherently involves “ a balance between the competing interests of the police duty and of the liberty interests at stake”: Mann at paras 15, 26, 34. i. the extent to which the interference with individual liberty is necessary to perform the officer’s duty [ 118 ] Police officers have a duty to investigate crime and keep the peace.

Accordingly, “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing”: Mann at paras 16, 26. I am satisfied that the officers’ detention of Turton in these circumstances fell within the scope of that duty. [ 119 ] There are a number of things Constables Shust and McCullough could have done to investigate the broken VLT handle before choosing to detain Turton.

For instance, the officers could have reviewed the video footage, interviewed Siewert and Ribest, asked to examine the broken machine, or spoken with other casino staff, including on-duty security guards. In this sense, the interference with Turton’s liberty was not absolutely necessary to perform their duty. [ 120 ] Importantly, however, absolute necessity is not the standard for authorizing an investigative detention.

In these circumstances, interfering with Turton’s liberty to investigate the offence was necessary to the extent that the officers were unaware of exactly what had happened when they entered the scene and almost immediately observed Turton engaged in a loud argument with casino security personnel. The officers sought to defuse the situation and to fulfil their duty to investigate crime by detaining the closest man in the group that had been identified by security. Turton was not known to either Cst. Shust or Cst. McCullough. He could be heard yelling “I’m fucking leaving!” even before the officers approached.

If they allowed him to leave, they could not be sure that they would have access to him for questioning later without knowing his identity or his relationship to the other suspect. i. the liberty interfered with [ 121 ] The Defence characterizes the liberty that the officers interfered with as Turton’s

section 9 Charter right not to be arbitrarily detained. In my view, the liberty they interfered with is even more essential: the right to be let alone or the liberty to move unimpeded by the state. In this sense, the liberty interest at stake is much more significant than any single Charter provision. It is an idea that finds expression in multiple Charter guarantees, including

section 7’s right to “life, liberty, and security of the person.” [ 122 ] The importance of this interest, which Turton shares with all citizens, cannot be understated. As Iacobucci J. states in Mann at para 35: “Individual liberty interests are fundamental to the Canadian constitutional order.

Consequently, any intrusion upon them must not be taken lightly....” Thus, in determining whether the common law authorized the officers’ actions in this case, this Court must consider the impact of their actions on Turton’s liberty to move about freely. ii. the nature and extent of the interference [ 123 ] The officers’ interference with Turton’s liberty was direct, personal, and physical. This was not an instance in which the police ask a few questions and the detainee makes no comment before being sent on his or her way, or in which the individual feels detained but has no particular desire to leave anyway.

Turton declared his wish to leave in no uncertain terms and the officers prevented him from doing so, going so far as to physically stop him with their hands. iii. other circumstances [ 124 ] Although Mann states at para 34 that the above three factors are the “most notable,” the detention needs to have been reasonably necessary in all of the circumstances.

Having recognized that limited physical restraint may be justifiable as part of a valid investigative detention, other factors will also be relevant to the assessment of whether touching Turton was reasonably necessary or whether it constituted an unjustifiable use of the officers’ power to detain for an investigative purpose.

In Alec Fiszauf, The Law of Investigative Detention , 2d (Markham, Ont: LexisNexis, 2013) at 115, the author suggests that factors applied in the arrest context may be relevant to the use of force in an investigative detention as well, including: • whether force is needed at all; • the nature and seriousness of the offence involved; • the certitude of the fact of the offence having occurred and the accused’s link to it;

• the need for detention as an intervention; • protection of officers and the public; • the prospect of flight or escape; • the likelihood of resumption or continuation of the offence; • the physical and mental condition of the detainee and/or apparent victims; • police training in the use of force and alternative resolution strategies; • the prospect of resistance, escalation of violence or retaliation; • the ease of identification of the suspect and access to the suspect; • the nature and extent of the force contemplated as likely to be necessary; and • other exigent circumstances. [ 125 ] Counsel for the Plaintiff contends that the method of detention employed in this instance should have been minimal given that the alleged offence was property related.

He says that the nature of the offence did not justify the use of force. He further contends that the officers acted too hastily in seizing Turton’s right hand and applying force. Rather, he suggests that one of the officers could have simply posed questions to Turton while the other office ensured that he did not leave.

Furthermore, he says that the officers should have been more reasonable and patient in their response to Turton’s slightly raised right hand, and by responding with force the officers acted in a way that was not reasonably necessary given the circumstances. [ 126 ] The crime that Constables Shust and McCullough were investigating—mischief to property—was not especially serious, but the officers could be reasonably certain that the offence had occurred, as it was reported directly by a security guard at the casino.

Turton’s link to the offence was not conclusive as the officers approached him: casino personnel had not yet viewed the security video and could not be sure which of the three men had damaged the VLT. However, the officers reasonably suspected that Turton was somehow involved, as he was part of the group specifically pointed out by security. It is clear from the officers’ testimony and from the video entered into evidence that Turton was angrily yelling and taking steps toward a security guard as the police officers approached.

Turton was visibly drunk and had become aggressive, leading the security guard to back away with his hands raised. The police officers physically stepped in to intervene and Cst. McCullough told Turton that he was not free to leave because they were investigating the property damage. [ 127 ] By this point, the offence had ended and there was no real likelihood that Turton or his group would continue to damage casino property. Still, Turton’s aggression continued, having turned his attention to the police. Cst.

McCullough described Turton’s condition as “agitated.” The officers’ presence had no apparent impact on his level of agitation. He responded to the officers’ suggestion that he could not leave by loudly proclaiming he would do the exact opposite: “Fuck you, I’m leaving.” This was a response that can only be meaningfully characterized as hostile. It was a volatile situation. Based on the fact that Turton was swearing and threatening to leave, it was reasonable for the officers to conclude that he would try to leave and that detention was required in order to facilitate their investigation.

In other words, it was reasonable in those circumstances for the officers to think that Turton might attempt to flee before they had any opportunity to investigate. The whole encounter, from the moment the police stepped in to the moment Turton and the police went down to the ground, happened very quickly. [ 128 ] Turton’s counsel argues that his client’s words should not be interpreted as defiance because there is no evidence as to the actual words Cst. McCullough used when advising Turton he was not free to leave. Turton contends that the only evidence before the court is evidence as to what Cst.

McCullough intended to convey, and that it is not clear whether he did, in fact, convey that message. While the precise words used may not be in evidence, I am satisfied that Cst. McCullough clearly conveyed to Turton both the fact and reasons for his detention. [ 129 ] Members of the CPS are trained to use the least amount of force that circumstances require and not to resort to force unless it is reasonably necessary to do so. In some instances, the officer’s mere presence and communication will suffice to effect a detention.

In the circumstances of this case, however, these tools were ineffective relative to Turton. The CPS Use of Force Policy describes a touch on the arm as a “lower level” physical control. [ 130 ] Although there were other means by which Cst. Shust could have resolved his concern that Turton might leave, such means were not reasonable in the circumstances. For example, it would not have been reasonable to wait for Turton to make good on his threat to leave the scene before the officers could touch him in the limited manner that they did.

It is significant, in my view, that Turton’s words were defiant, pointed, and unqualified. In that situation, it was reasonably necessary for the officers to confirm or re-enforce the message that Turton was not free to leave. As such, it was necessary to touch Turton to bring his detention squarely to his attention. [ 131 ] It is true that in Aucoin the majority found the police conduct in that case to not be reasonably necessary because the officer’s concern that Aucoin would flee could have been addressed by waiting a couple of minutes for back-up to arrive.

However, Moldaver J’s conclusion that placing Aucoin in the back seat of a police cruiser was not reasonably necessary hinged on the fact that doing so in that case necessitated a pat-down search before Aucoin could enter the vehicle. Knowing that such an incidental search was unjustifiable in the circumstances, it was not reasonably necessary to put him in the cruiser. [ 132 ] The facts in Aucoin are, in my view, distinguishable from this case. Grabbing Turton’s arm did not necessarily involve anything more intrusive than just that.

Constables Shust and McCullough could not have reasonably anticipated that Turton would react the way that he did by raising his right fist and could not have predicted that the situation would escalate. The force that followed Cst. Shust’s initial contact was a reaction to Turton’s subsequent behaviour and was not an inevitable consequence of grabbing Turton’s arm,

which was reasonably necessary in the circumstances presented. [133] I am satisfied on a balance of probabilities that the detention, including the manner in which it was carried out, was reasonablynecessary. The detention was brief, the police told Turton the reason for the detention, and it was reasonably necessary for the police touse force to prevent Turton from leaving the premises. [134] Cst. Shust’s assault and battery of Turton was thus authorized by the common law on investigative detention. Turton concededthat if the officers were authorized to touch him at all, then the amount of force they used was not excessive. Therefore, all threebranches of the test in Crampton are met.

Section 25 of the Criminal Code protects the officers from civil liability in this instance. [135] The defendants further argue that Cst. McCullough’s subsequent decision to grab Turton’s right arm with both hands andforcibly pull him forward to destabilize and restrain him against a wall was justified by the Criminal Code’s Defence of Person provisionset out in

section 34. Since the parties agreed at trial that the amount of force was reasonable in the circumstances (assuming force wasauthorized at all), it is not necessary for me to address this alternative defence. It is sufficient to say that, on these facts, the investigativedetention, including Cst. Shust’s hold on Turton’s left forearm, was authorized by law. There is no dispute between the parties that whatfollowed was either authorized by law as part of a continuing investigative detention or, more likely, authorized as a valid defence againstforce or the threat of force.

Therefore, I am satisfied on a balance of probabilities that the officers have a complete defence to Turton’sactions in assault and battery. c. Did Cst. Shust act in self-defence in taking hold of Turton’s left arm? [136] If I am wrong that the common law power to briefly detain for an investigative purpose includes the power to use reasonableforce to effect the detention, I would nevertheless dismiss the claims against the officers on the basis that the officers acted in self-defence or defence of a third party when Cst. Shust initially grabbed Turton’s left arm and Cst.

McCullough grabbed his right arm. [137] To prove self-defence in a civil action, the defendant must show (

a) that his response was proportionate to the threat he faced or which he reasonably believed another was facing; (

b) that he acted immediately and not in r

[…]