Paul v Quan, 2022 ABKB 694

Court of King’s Bench of Alberta Citation: Paul v Quan, 2022 ABKB 694 Date: 20221020 Dockets: 0803 08328, 0803 05179 Registry: Edmonton Docket: 0803 08328 Between: Jason Paul Plaintiff - and - Wilson Quan, Jane Doe, John Doe #1, John Doe #2 and Michael Boyd (Chief of the Edmonton Police Service) Defendants And Between: Docket: 0803 05179 Jason Paul Plaintiff - and -

Richard Begin, Susan Boonstra, Chris Deluca and Michael Boyd Defendants Corrected judgment: A corrigendum was issued on October 25, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice L.R.A. Ackerl _______________________________________________________ I. Introduction . 3 II. The Trial 4 A. Assessment of Witness Testimony . 4 i. The Approach . 4 ii. The Named Parties . 6 a. Jason Paul 6 b. Constable Wilson Quan . 8 c. Constable Richard Begin . 11 d.

Detective Chris Deluca . 12 iii. The Video Surveillance Evidence . 13 B. Liability: The Iron Horse Incident 14 i. Battery . 14 ii. s. 25 Criminal Code Justification . 15 a. Lawful Authorization for Action . 15 b. Reasonable Grounds for Action . 16 c. Necessary Force . 17 iii. Responsibility for Iron Horse Staff Conduct 22 iv. False Imprisonment 24 v. Negligent Investigation . 25 C. The Monkey Island Incident 25 i. Lawfulness of the Arrest 25 ii. Battery . 29 iii. False Imprisonment 30

iv. Admissibility of Superintendent Chapdelaine’s Notes . 31 III. Causation . 31 A. Physical Injuries . 32 i. Broken Nose . 32 ii. Soft Tissue Injuries . 32 iii. Chipped Tooth, Facial Bleeding and Bruising . 32 B. Psychological Injuries . 32 C. Pecuniary Injuries . 34 i. VIP Enterprises Inc. 34 ii. Monkey Island . 35 iii. VIP Realtor 36 IV. Damages . 36 A. Punitive Damages and Charter Damages . 36 B. Special Damages . 36 C. Pecuniary Damages . 36 V. Costs . 36 I. Introduction [ 1 ] The Plaintiff, Jason Paul (“Paul”) was arrested by different Edmonton Police Service officers on two occasions.

Based upon these arrests he filed two separate actions which were joined for hearing at trial. [ 2 ] The first arrest occurred on June 24, 2006, at the Iron Horse Eatery and Watering Hole Inc. (“Iron Horse”) in Edmonton. Constable Wilson Quan (Cst. Quan) was the arresting officer. Paul alleges excessive use of force, wrongful arrest, false imprisonment, and negligent investigation against Cst. Quan. At trial Paul’s counsel did not pursue claims against Jane Doe or the John Does named in the Statement of Claim.

Michael Boyd, then Chief of the Edmonton Police Service (“EPS”) remained named as a required party to both actions pursuant to the Police Act , RSA 2000, c P-17 , s 39(2) (“ Police Act ”). [ 3 ] Paul seeks damages under various heads totalling $1,413,294.40 for the Iron Horse Incident. [ 4 ] Paul was also arrested by EPS on December 22, 2007. This occurred at the Monkey Island establishment (“Monkey Island”) in Edmonton. Constable Richard Begin was the arresting officer. He was accompanied at that time by Constable Susan Boonstra. During trial the action against Cst.

Boonstra was discontinued without cost consequences. Constable Chris Deluca (now Detective Deluca) also attended Monkey Island that evening. Paul alleges false arrest and imprisonment against both Cst. Begin and Det. Deluca. [ 5 ] Paul seeks damages (again under multiple heads) totalling $20,250 arising from the Monkey Island Incident. [ 6 ] The Defendants deny all grounds of liability in both actions. As a primary argument they contend Paul failed to prove his claims on a balance of probabilities. The Defendants do concede Cst. Quan committed battery upon Paul during the Iron Horse Incident.

They contend that the battery committed by Cst. Begin during the second arrest, at Monkey Island, was de minimis . In any event, the Defendants argue they have proven police battery on both occasions was defensible under section 25(1) of the Criminal Code, RSC 1985, c C-46 . [ 7 ] If liability exists, the Defendants submit the Plaintiff failed to prove causation of the alleged damages. They also argue the Plaintiff cannot recover for any resulting business losses suffered by VIP Edmonton Marketing Inc. or Monkey Island because the corporations are not named parties to these actions.

Finally, the requested damages are grossly overstated. Any resulting damages are minimal. [ 8 ] The Plaintiff alleges it is not fair for the Defendants to only now challenge whether the correct parties are before the Court. He further argues the economic damages were suffered personally and were fully established by the evidence. II. The Trial [ 9 ] This trial occupied 18 days over a protracted period of time. Both parties called multiple witnesses. Extensive documentary evidence was entered as exhibits. Counsel agree that witness credibility and reliability findings are particularly important to the trial

outcome. [10] I accept counsel’s position as correct. The testimony of central witnesses, notably the named parties to the litigation, is ofcritical importance in this trial. Consequently, general comments about assessment of their testimony are advanced at the outset toprovide context for necessary factual findings. These introductory comments about witness credibility and reliability are supplementedby further references in my subsequent review of the material facts. A. Assessment of Witness Testimony i.

The Approach [11] Assessment of witness testimony involves a determination of the credibility and reliability of that evidence. Credibility isconcerned with the commitment of a witness to tell the truth. Was the witness honest?

Reliability considers “the witness’s ability toaccurately observe, recall and recount the events in issue.” Was the testimony accurate? (See R v Morrissey, , 22 OR(3d) 514 (CA) at para 33) [12] In FH v McDougall, 2008 SCC 53 at para 46, the Supreme Court of Canada emphasized that, in a civil case: ... evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is noobjective standard to measure sufficiency.

In serious cases, like the present, judges may be faced with evidence of events that are allegedto have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the taskmay be, the judge must make a decision.

If a responsible judge finds for the plaintiff, it must be accepted that the evidence wassufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test. [13] At paras 57-58 the Court expressly addressed the impact of evidentiary inconsistencies in assessing witness testimony in acivil case: At para 5 of her reasons, the trial judge had regard for the judgment of Rowles JA in R v B (RW) (1993), 24 BCAC 1 (BCCA), at paras28-29, dealing with the reliability and credibility of witnesses in the case of inconsistencies and an absence of supporting evidence.Although R v B (RW) was a criminal case, I, like the trial judge, think the words of Rowles JA are apt for the purposes of this case: In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between thecomplainant’s evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness’ evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable.

This isparticularly so when there is no supporting evidence on the central issue, which was the case here. [para. 29] As Rowles JA found in the context of the criminal standard of proof, where proof is on a balance of probabilities there is likewise no ruleas to when inconsistencies in the evidence of a plaintiff will cause a trial judge to conclude that the plaintiff’s evidence is not credible orreliable.

The trial judge should not consider the plaintiff’s evidence in isolation, but must look at the totality of the evidence to assess theimpact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case. [14] In FH v McDougall, at para 86, Justice Rothstein recognized that a proper finding of witness believability willcorrespondingly mean the conflicting testimony of another witness was not accepted: … in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance of probabilities.

Insuch cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the resultbecause that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly thatthe other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations thatare altogether denied by the defendant as in this case. W(

D) is not an appropriate tool for evaluating evidence on the balance ofprobabilities in civil cases. ii. The Named Parties a. Jason Paul [15] Paul was an intelligent, articulate and talkative witness. However, his testimony, viewed against the totality of evidence,creates concern about the reliability and, especially, the credibility of his evidence. [16] In determining the reliability of his testimony, I recognize Paul had a pronounced ability to verbalize or communicate hisrecollection. He occasionally provided minutely detailed answers to certain questions.

In example, Paul recalled with precision thenumber and types of drinks he consumed during the night of the Iron Horse Incident. Paul also recited particulars of his conversationsand interactions with police during both the Iron Horse and Monkey Island Incidents. However, he volunteered to feeling “pretty buzzed”before the Iron Horse Incident occurred. Paul placed himself at a “5” on an intoxication scale of 1-10.

However, that degree ofintoxication suggests Paul’s ability to accurately recall what occurred at the Iron Horse was also somewhat impaired. [17] As a general observation, the ability of Paul and all other named parties was also understandably hampered by theapproximately 15 years which elapsed between the arrest dates and trial. [18] While the reliability of Paul’s testimony invites hesitation, the credibility of his testimony attracts debilitating concern. Thatconclusion arises for multiple reasons.

[ 19 ] The questionable sincerity of Paul’s affirmation to tell the truth at trial raises concern about his honesty. After testifying under affirmation for three days, Paul informed the Court Clerk that he did not care whether his testimonial oath was sworn or affirmed. He also requested an explanation about the difference between the two approaches. He eventually acknowledged his promise to tell the truth while testifying. [ 20 ] The timing and nature of this exchange is troubling. At a minimum, it suggests Paul was indifferent to the importance of affirmation.

This concern is legitimized by an analogous incident during questioning preceding trial. During cross-examination Paul was asked whether the affirmation he gave at questioning bound his conscience. Paul replied: At that time I don’t know—I didn’t know much—about—about this—about this thing. But I –like, I was understanding to tell the truth.

And in this, I was guessing. [ 21 ] Paul also admitted during that same questioning that he was “clearly...guessing” or “making assumptions” during extensive cross-examination on the location of the headbutt he received from Jason Szymanski before police arrived at the Iron Horse. [ 22 ] While testifying in this trial Paul stated that “after doing this for 15 years, I know better not to guess at things or whatever.” This trial assertion offers no comfort to the Court.

Indeed, Paul’s acknowledged history of failing his affirmation and ongoing misappreciation of that duty raise doubt about his commitment to be truthful. [ 23 ] Paul was charged with three Criminal Code offences arising from his conduct during the Iron Horse Incident. The specific charges were for uttering threats causing bodily harm to Jason Szymanski (staff doorman) pursuant to Criminal Code

section 264.1(1) (a); assault of Ridley Chen (staff doorman) contrary to Criminal Code

section 266 ; and assault with intent to resist arrest of Cst. Quan under Criminal Code section 270(1) (b). [ 24 ] At his May 15, 2007 trial Paul pled guilty to causing a disturbance contrary to Criminal Code

section 175 . He received a conditional discharge and a six month probation term. The three initial charges were withdrawn. [ 25 ] In this trial Paul testified that he disagreed with legal advice supporting the plea bargain “but then I eventually ended up pleading guilty” to the cause disturbance charge. He explained “the big thing was is (sic) that I wouldn’t have a criminal record.” [ 26 ] The fact of this conviction was undisputed at trial. The conviction is admissible for the purpose of proving Paul committed the offence. However, it attracts no weight in my assessment of Paul’s testimony.

The facts underlying the guilty plea were not provided and the offence of causing a disturbance encompasses a wide array of misbehaviour. [ 27 ] During testimony, it emerged that Paul made prior inconsistent statements about facial damage; causation of injury to Paul’s nose was a material trial issue. At Szymanski’s preliminary inquiry Paul testified the headbutt contacted his nose. He similarly responded in the civil proceedings against Szymanski.

However, during this trial (in which Szymanski is not a party) Paul denied Szymanski headbutted his nose. [ 28 ] At trial, Paul also admitted to not claiming significant cash revenue as income for tax purposes over a five-year period. The approximate amount as calculated by the Plaintiff’s expert witness is $272,000. The duration of time and amount of money involved suggest this was deliberate and illegal conduct.

It further illustrates Paul’s willingness to prioritize personal interests over legal obligations. [ 29 ] Paul’s pattern of withholding material information also extended to medical professionals involved in his treatment. A particularly telling omission is Paul’s failure to inform his chiropractor, Dr. Brodeur, that he had been hit on his head with a tire iron during an altercation after the Iron Horse Incident. The tire iron attack rendered him unconscious. The resulting injury required stitches.

Given the brutality of that altercation, it is incomprehensible that Paul would not have relayed the information to Dr. Brodeur. [ 30 ] Paul also failed to inform Dr. Brodeur of an April 11, 2007 altercation in which he was punched twice in the face. However, he had previously disclosed that incident to Dr. Shuster, his family physician. This further suggests Paul was selective in relaying material information. [ 31 ] Paul’s failure to honestly and responsibly inform Dr. Brodeur resulted in an uninformed assessment of soft tissue issues allegedly arising from his interaction with Cst. Quan.

Under all the circumstances, these omissions cannot be dismissed as oversight. Rather, they are consistent with Paul purposefully vetting information to disclose to best advance his case. [ 32 ] It is also revealing that Paul intended to pursue civil action against EPS even as the Iron Horse Incident unfolded. During the altercation, that lawsuit was already “A hundred percent” on his mind. Paul’s subsequent statement to Dr.

Neehall that Szymanski was 5% responsible and police 95% responsible for alleged PTSD further suggest he was crusading against perceived police injustice. [ 33 ] Paul’s trial narrative, in my view, was tailored to fit that perspective. Further support for that observation is found in his assertion that he was banned from attending Edmonton area bars because police installed a “Red Alert Police Ban” on venue screening devices. However, Marc Levers, who co-founded the BarLink security system, testified police “could not” enter information into the system.

There is also no evidence that police requested entry by any bar staff of the police ban notice. [ 34 ] In general, while testifying, Paul was regularly and unduly preoccupied with advancing his self-image rather than responding directly to questions from counsel. During the trial Paul (who described himself as “A hundred percent entrepreneur”) appeared to be marketing himself with a sales pitch he was determined to deliver rather than devoting himself to honestly testifying.

His testimony was also deeply coloured by his entrenched view that he was a victim of police injustice. [ 35 ] In assessing Paul’s testimony against the totality of evidence, significant, overriding concerns arise about the credibility of his evidence. In the result and given my assessment of police officer testimony, I prefer police evidence about what occurred during the two arrests where it differs from Paul. Additionally, my concerns about Paul’s testimony undermine the opinions of medical and accounting

experts to the extent their evidence relies upon information provided by Paul. b. Constable Wilson Quan [ 36 ] Cst. Quan has been a police officer since 2000. On the evening of June 24, 2006, he was on a Special Duty assignment when he attended the Iron Horse in response to a radio request for police assistance. Cst. Quan was then directly involved in arresting Paul. [ 37 ] Cst. Quan testified in a candid and responsible fashion. He responded evenly to questions from both counsel. In doing so, Cst.

Quan steadfastly maintained his recollection of certain portions of his interaction with Paul while acknowledging uncertain or no recollection of certain other surrounding details. That readiness to acknowledge his uncertain recollection of certain details also highlights the cogency of Cst. Quan’s testimony when he repeatedly asserted his clear recollection of what occurred. [ 38 ] Cst. Quan’s willingness to admit uncertainty about certain material details illustrates his efforts to provide both truthful and accurate testimony.

It is also a reasonable product of a frantic, rapid encounter and the passage of time. The physical encounter lasted about five minutes and occurred approximately 15 years earlier. [ 39 ] Cst. Quan provided a coherent, relatively detailed sequencing of events immediately following his arrival. He provided a specific picture of Paul’s appearance describing him as “angry, intoxicated, slurred speech, glassy eyes, blank stare.” In cross- examination, Cst. Quan added that Paul was “somewhat” stumbling and that “his actions were that he was intoxicated.” After being placed in a police cell Cst.

Quan testified that Paul “still seemed intoxicated.” [ 40 ] The opportunity for Cst. Quan to form his initial assessment of Paul was brief. It was also not echoed by the Iron Horse bartender who had served Paul alcohol shortly beforehand. Paul’s parents who visited Paul while in police cells, and his lawyer who appeared for the bail hearing, similarly observed no signs of impairment. However, these latter observations occurred after Paul had been in custody for some period of time. [ 41 ] I accept Cst. Quan’s assessment of Paul’s impairment as correct. It was made by an experienced police officer.

The related supporting detail was specific. It is also consistent with Paul’s admission of consuming alcohol that evening and feeling “slightly buzzed.” [ 42 ] Cst. Quan admitted to uncertainty about certain aspects of his altercation with Paul. An obvious, and important example involves his use of a police baton during the altercation. [ 43 ] Cst. Quan’s recollection about when he struck Paul with his baton varied during testimony. In direct examination Cst. Quan initially testified he believed Paul was struck after retrieving his baton from the ground.

He then twice added he didn’t know if the strike occurred before dropping his baton. Cst. Quan also indicated that he was not sure if Paul was completely handcuffed when he picked up his baton. [ 44 ] During cross-examination Cst. Quan stated: “I believe he was being handcuffed, or in handcuffs when [the baton strike occurred].” He added from his “overall memory” it was “more likely” handcuffing had been completed. [ 45 ] After reviewing the video Cst. Quan stated he may have struck Paul when Paul was “flailing his head.” Ultimately, when asked when the baton strike occurred, Cst.

Quan testified “I don’t know.” [ 46 ] In re-examination, Cst. Quan recalled only that Paul was struck while on the ground. [ 47 ] I find Cst. Quan was genuinely uncertain about precisely when the baton struck Paul. However, I do find this occurred while Paul was lying on the ground, flailing at persons, including police, involved in the melee. [ 48 ] Cst. Quan was insistent that Paul was struck only once by his baton. However, both counsel directed the officer to his police report about the incident. In that report, Cst.

Quan states: “I had to use my baton several times.” [ 49 ] In direct examination Quan explained this description referred to the totality of events including the display of the baton for deterrence. Quan admitted that he could have “worded it better.” [ 50 ] Cst. Quan’s written description of the physical altercation between himself and Paul is deficient. The language employed lacks expected precision and invites confusion and

interpretation. However, I do not find the report misrepresents his honest recollection of what occurred. I accept Cst. Quan’s explanation that the reference to using his baton “several times” related to its visual and audio deployment deterrence purposes. [ 51 ] During cross-examination, Cst. Quan steadfastly maintained his position that he did not intentionally strike Paul with his baton. Cst. Quan denied the police report implied baton strikes purposefully occurred. He agreed that was a plain meaning of the report language but emphasized that was not his trial testimony. Cst.

Quan acknowledged his report did not state the baton strike was accidental. [ 52 ] Cst. Quan was also referred to his testimony in Szymanski’s earlier criminal trial. In that proceeding Quan testified in part, that he “decided it was necessary to use [my] baton as well” ... I take out my baton and struck him with it.” [ 53 ] The evidence, viewed in totality, raises questions about Cst. Quan’s trial testimony that the baton strike was accidental. He made prior assertions in his police report and another court proceeding, arguably inconsistent with that position. I conclude the baton strike was intentional.

This finding does not suggest that Cst. Quan was not attempting to testify honestly. Rather, it is best viewed as a product of Cst. Quan’s prior comments on this specific action. That commentary questions the accuracy of his recollection about this particular response which occurred years earlier in a confusing, tumultuous setting. This discrete inconsistency does not alter my ultimate assessment of Cst. Quan’s testimony which is based upon the totality of evidence.

[ 54 ] However, I do accept Cst. Quan’s testimony he did not intend to strike Paul in the face. Cst. Quan was adamant that he did not deliberately strike Paul in the face with his baton. In direct examination, when asked how it occurred that the baton hit Paul in the face, Cst. Quan stated: “I don’t know exactly... it was an accident. I didn’t intend to hit him in the face.” In cross-examination, he reiterated that the facial strike “wasn’t intentional.” This testimony is plausible and persuasive given the brief, evolving, and ongoing tumult. [ 55 ] Counsel for the Plaintiff argues Cst.

Quan’s conduct and testimony was improperly influenced by an interest in protecting Szymanski. Counsel noted Szymanski and Cst. Quan were Facebook friends, gym acquaintances, and had previously worked together at the Iron Horse when Cst. Quan was on Special Duty assignment. They were also observed in a friendly “fist bump” exchange at the courthouse immediately before Paul’s trial for charges arising out of the Iron Horse Incident was to be heard. Counsel emphasized that Cst.

Quan’s efforts in attempting to dissuade Paul (through his parents) from suing Szymanski were particularly troubling. [ 56 ] This conduct, viewed collectively, raises pause about the professional objectivity of Cst. Quan. However, I do not conclude he tailored his investigation or his testimony to insulate Szymanski from liability. At that time Cst. Quan was not aware of interaction details between Paul and Szymanski earlier that night. The behavior of Cst. Quan in attempting to deter civil litigation by Paul against Szymanski is consistent with his effort in favorably resolving the criminal charges against Paul.

I find his engagement was motivated by a genuine interest in minimizing the impact of the Iron Horse Incident on both parties. [ 57 ] Paul subsequently filed a formal complaint with EPS regarding the conduct of Constables Quan and Pshebnicki during the Iron Horse Incident. That complaint was dismissed. There is insufficient evidence about the complaint grounds and there is no evidence explaining the complaint dismissal. I attribute no weight to this administrative decision or to Paul’s decision to not pursue an appeal. [ 58 ] In

summary, I find the testimony of Cst. Quan to be both honest and, save for the deliberate baton strike, accurate. In particular, I prefer the evidence of Cst. Quan over that of Paul in describing their entire interaction. c. Constable Richard Begin [ 59 ] At the time of trial, Cst. Begin had been an EPS member for about 20 years. He testified about the circumstances surrounding his arrest of Paul at Monkey Island on December 22, 2007. [ 60 ] Cst. Begin testified in a thoughtful and deliberate manner. His evidence about his interaction with Paul was plausible and remained intact during questioning.

He was firm and decisive on material issues including his grounds for arresting Paul. He also readily made fair concessions during his examination. For example, while providing an explanation, Cst. Begin agreed, in hindsight, it would have been beneficial to explain to Paul why identification was being requested. Cst. Begin accepted he “could” have advised Paul his of Charter rights and released him before doing do so at the police station. [ 61 ] I note, as a further flag of his honesty, that Cst.

Begin, in recalling certain conversations, was careful to qualify his recollection by stating “words to that effect” were voiced. [ 62 ] In considering the totality of evidence, I conclude Cst. Begin was a credible witness. [ 63 ] I also find the testimony of Cst. Begin to be reliable. He provided detailed evidence about the Monkey Island scene that night and about specific interactions and conversations with Ziad (the injured patron) and Paul. [ 64 ] Paul filed a complaint with the EPS against Constables Begin, Boonstra, and Deluca alleging misconduct during the Monkey Island Incident.

The complaint against Constables Boonstra and Deluca was dismissed. Cst. Begin received an official warning for three actions constituting “Unnecessary Exercise of Authority.” That finding was based upon Cst. Begin’s refusal to provide Paul with “a reason why you were demanding his identification”, and because he “arrested [Paul] despite the absence of reasonable and probable grounds to believe he had committed an offence”. The transportation of Paul to the police station was also declared “unnecessary.” [ 65 ] In this trial Cst. Begin testified he disagreed with the findings.

He cited his belief in lawful grounds to arrest Paul for obstructing him in his investigation by removing Ziad from the premises. Transportation to the police station was necessary to allow Paul phone access and ensure proper administration of Charter rights. Cst. Begin did not appeal the ruling to avoid complicating a new posting assignment. He was also aware the sanction was expressly described as “not of a serious nature.” [ 66 ] In this case I attach no weight to the disciplinary sanction or its supporting reasons. Indeed, for reasons subsequently detailed, I accept Cst. Begin’s

summary explanation disagreeing with the administrative decision. [ 67 ] Based upon the entirety of evidence I conclude Cst. Begin testified in an honest and accurate manner. I prefer the testimony of Cst. Begin over that of Paul where their evidence differs. d. Detective Chris Deluca [ 68 ] Det. Deluca had approximately 20 years services with EPS when he testified at trial. He was a constable with the Old Strathcona foot patrol when he attended Monkey Island on December 22, 2007, in response to a police radio call for assistance. [ 69 ] Det. Deluca testified in a careful, precise, and candid fashion.

He repeatedly confined his testimony to his direct involvement to avoid speculation. For example, Det. Deluca stated he could not testify about Cst. Begin’s rationale for arresting Paul. [ 70 ] Det. Deluca also provided a detailed and plausible account of the Monkey Island Incident upon arrival and in chronicling his interaction with Paul. The language he employed was considered and exact. In illustration, during cross-examination counsel suggested he “assisted” Cst. Begin in “escorting” Paul from inside Monkey Island to a police cruiser; Det. Deluca replied: “--escorting is an interesting term.

I followed is probably a better word.”

[71] Det. Deluca’s detailed explanation for this characterization is similarly precise. It is also logical: The hallway was so narrow at the entranceway for Monkey Island, it wouldn’t have been uncommon to walk single file going in and out.So did I follow Constable Begin and Mr. Paul for an officer safety capacity? Absolutely I did. But escorting—and to me, the reason Imention that, sir, is escorting to me means taking physical control, and I certainly did not do that. [72] As marks of his candour, Det.

Deluca in direct examination had stated: “I may have placed my hand at or near his back, but Ican’t say either way.” In answering other questions, Det. Deluca was similarly careful to caution that his recollection was uncertain. Forexample, he “believed” two other constables were present upon his arrival at Monkey Island. While stating “I don’t think” a conversationwith the Iron Horse manager occurred, Det. Deluca also carefully volunteered “I don’t recall.” Det.

Deluca acknowledged to having nospecific independent recollection of what he did after leaving Monkey Island but recited his “usual practice” in an effort to fairly andcompletely respond. [73] Det. Deluca was also circumspect in recalling any conversation he overheard between Cst. Begin and Paul. He repeatedlytestified to having minimal recollection of conversation specifics. In cross-examination he agreed that counsel’s referral to priorquestioning (in 2008) assisted in refreshing his memory. [74] In contrast, Det. Deluca was adamant about what he did clearly recall.

This includes his detailed observations upon enteringMonkey Island and rationale for and actual deployment of his conducted energy device (“CED”). [75] I conclude that the testimony of Det. Deluca is both credible and reliable. I accept the evidence of this police officer where itconflicts with that provided by Paul. iii. The Video Surveillance Evidence [76] The parties admitted that eight files containing video surveillance of the June 24, 2006 events at the Iron Horse were true andauthentic copies of the original surveillance tapes.

While disagreeing on the weight attaching to the video surveillance, counsel jointlyproposed it be accepted into evidence as carrying the necessary relevance and probative value to satisfy the admissibility threshold. Thatposition was accepted by the Court. [77] In R v Nikolovski, (SCC), [1996] 3 SCR 1197 at para 22 the Court discussed the potential probative value ofvideo recordings: So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of theidentity of the perpetrator.

It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue ofidentity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may be killed yet thevideo camera will steadfastly continue to impassively record the robbery and the actions of the robbers. Should a trier of fact be deniedthe use of the videotape because there is no intermediary in the form of a human witness to make some identification of theaccused? Such a conclusion would be contrary to common sense and a totally unacceptable result.

It would deny the trier of fact the useof clear, accurate and convincing evidence readily available by modern technology. The powerful and probative record provided by thevideotape should not be excluded when it can provide such valuable assistance in the search for truth. In the course of their deliberations,triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as they assess theweight of the evidence given by viva voce testimony. [78] In this case, the quality of the individual video recordings differ markedly.

The videos capturing what occurred inside the IronHorse premises clearly and accurately depict events. However, the videos depicting the events directly surrounding the arrest of Paul onthe patio outside the Iron Horse premises fail to do so. They are of a poor and grainy resolution. The images of participants are blurry.The cogency of this evidence is further impaired by the ongoing commotion and positioning and number of participants involved. [79] I note this video evidence was tendered in R v Szymanski, 070628052Q1 (Unreported October 15, 2009). The main trial issueconcerned identification of the accused.

The trial judge “examined the DVD many times” ... but concluded, by itself, “the quality of theDVD is not sufficient to say with certainty that the Accused is the person shown to be committing the assault.” That finding hints at theinability of the video to accurately capture what occurred. [80] Additionally, and significantly, the video does not completely capture the entire struggle between Cst. Quan and Paul on thepatio. In re-examination Cst. Quan was asked about the amount of time that elapsed between removing his baton and striking Paul withthat device.

He replied: Well, as you see in the video, there’s – there’s a portion that isn’t there when he falls to the ground before he gets to the video, and sothat’s when he sits down, and we have that conversation. I think he’s going to cooperate. That’s when I get him back on his feet. He’sactually sitting before he gets into the next portion of that video, before that video happens. [81] The missing video concerns material and multiple events over a consequential period of time. The absence of this videofootage is magnified by the brief time frame covered by existing video footage.

Moreover, the subsequent behaviour of the parties whichis depicted in video loses necessary context. As a result, the tendered video evidence does not fully or fairly capture the full interactionbetween Paul and Cst. Quan. [82] Under the circumstances, I conclude the video evidence concerning the alleged assault on the patio carries no probative valuein determining what occurred. B. Liability: The Iron Horse Incident [83] The Plaintiff, in final written argument, crystallized the grounds upon which police liability rested for the Iron Horse Incident:

a) Cst. Quan committed an assault and battery against Paul.

b) Cst. Quan failed his duty to protect Paul against an assault by Szymanski that occurred during the arrest process.

c) Paul’s subsequent detention constituted false imprisonment.

d) Cst. Quan’s investigation of this incident was negligent. [84] The parties appear to view the torts of assault and battery as interchangeable. However, they are distinct: While a battery requires a direct application of force to another person an assault occurs when a defendant creates in another person anapprehension of an imminent battery. (Botterell, Andrew, Fridman’s The Law of Torts in Canada, 4th ed (Toronto, Thomson Reuters, 2020 at page 80) (“Fridman’s Law ofTorts”) [85] The trial evidence disclosed (in both actions) that police applied actual direct physical force to Paul.

In my opinion, theDefendants’ liability (if any) would be fully encompassed by the tort of battery. i. Battery [86] There are two elements to the tort of battery: 1) Intention to cause harmful or offensive contact or cause imminent apprehension of such harmful or offensive contact to anotherperson; and 2) harmful or offensive contact results. Day v Woodburn, 2019 ABQB 356 at para 197 (Day), citing from Turton v Hanson, 2016 ABQB 343 at para 72; aff’d 2018 ABCA 84 [87] Cst. Quan employed various types of force upon Paul.

They included pulling and shoving and physical control, with Paultwice being forced to the ground. Holding techniques, open handed strikes, deployment and use of a baton, and handcuffing alsooccurred. Physical harm resulted. ii. s. 25 Criminal Code Justification [88] Under the circumstances, the Defendants properly concede Cst. Quan committed battery to Paul. However, the Defendantsrely on

section 25 of the Criminal Code for lawful justification of that battery.

Section 25 states in part: 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 necessary forthat purpose. [89] A police officer relying on section 25(1) must prove on a balance of probabilities that he: 1) was required or authorized by law to perform an action in the administration or enforcement of the law; 2) acted on reasonable grounds in performing the action; and 3) did not use unnecessary force in so acting. (Day at para 204) a. Lawful Authorization for Action [90] In this case, the Defendants must prove Cst.

Quan’s arrest of Paul was within the scope of his law enforcement duties. Thequestion of whether the action was required or authorized by law does not involve the manner in which it occurred. [91] The authority and duties of police in Alberta are conferred by both common law and statute. [92] In Dedman v The Queen, (SCC), [1985] 2 SCR 2 at para 69 the Court that at common law the principalduties of police officers are “the preservation of the peace, the prevention of crime, and the protection of life and property.”

[ 93 ]

Section 38 of the Police Act codifies police authority, duties and jurisdiction. Section 38(1) is applicable in the circumstances of this case. It reads: 38

(1) Every police officer is a peace officer and has the authority, responsibility and duty (

a) to perform all duties that are necessary (

i) to carry out the police officer’s functions as a peace officer, (ii) to encourage and assist the community in preventing crime, (iii) to encourage and foster a co-operative relationship between the police service and the members of the community, and (iv) to apprehend persons who may lawfully be taken into custody, and (

b) to execute all warrants and perform all related duties and services. [ 94 ] Cst. Quan was on Special Duty Assignment when Paul was arrested. As such, his lawful duties included enforcement of the Gaming and Liquor Act, RSA 2000, c G-1 .

Section 70(

a) of that Act provides that a person cannot: remain in licensed premises after having been requested to leave the premises by the liquor licensee or an employee or agent of the liquor licensee. [ 95 ] Accordingly, Cst. Quan was authorized to remove Paul from the Iron Horse upon receiving information from management that Paul was not permitted to remain on the premises. Additionally, Paul’s refusal to comply with Cst. Quan’s lawful request to leave constituted the offence of resisting or wilfully obstructing a police officer in the execution of his duty under Criminal Code

section 129 . As an indictable offence, Cst. Quan was authorized under Criminal Code

section 495 to enforce the law and to arrest Paul without a warrant. [ 96 ] The Defendants have satisfied the first element of the defence of justification under Criminal Code section 25(1) . b. Reasonable Grounds for Action [ 97 ] The second element of Criminal Code section 25(1) requires that Cst. Quan prove he “acted on reasonable grounds in performing that action.” [ 98 ] Cst. Quan heard two Iron Horse staff members direct Paul to leave and observed his refusal. Cst. Quan confirmed that request with the Iron Horse Director of Operations before intervening. Informed of these demands, Cst. Quan was obligated to enforce

section 70 of the Gaming and Liquor Act . [ 99 ] Cst. Quan then personally twice requested that Paul leave the Iron Horse premises. In doing so he also cautioned Paul that arrest would follow for not doing so. The messaging was clear. Paul would either be ticketed or arrested for failing to leave. Paul undoubtedly understood these requests as he invited the officer to arrest him. He failed to comply. In doing so Paul was committing the indictable offence of obstructing a police officer contrary to Criminal Code

section 129 (a). [ 100 ] Cst. Quan had subjective and objectively reasonable grounds to arrest Paul. This element of the defence of justification under Criminal Code section 25(1) is satisfied. c. Necessary Force [ 101 ] The final element of a defence under Criminal Code section 25(1) requires the Defendants prove Cst. Quan used only as much force as was necessary for the purpose of doing what he was required or authorized to do.

Justification under section 25(1) is unavailable where more force than necessary is used by police. [ 102 ] In determining whether a police officer used unnecessary force, a court will determine whether the use of force was objectively reasonable considering the circumstances at the time. Police officers are not expected to exactly measure and use the precise amount of force each situation requires, since they are often involved in dangerous and volatile situations ( Day at paras 217, 222 ).

Officers may misjudge the degree of force necessary, and decisions should not be assessed using a “lens of hindsight” ( Day at para 223 ). [ 103 ] The principles governing assessment of the use of police force are summarized in Day at paras 216-225 : (

a) Principles [216] Subsection 25(1) serves the important purpose of limiting the use of force that (in particular) the police may use when carrying out otherwise proper police actions. The end of enforcing the law does not justify any and all means of enforcing the law. Police use of force is subject to judicial oversight in matters before the courts. See R v Nasogaluak , 2010 SCC 6 , Lebel J at para 32. [217] This does not mean that judges should evaluate use of force from the calm, measured, and post-facto perspective of the courtroom.

The judicial perspective must be based on the actual circumstances – the full factual context – and on the actual (and perceived) time events took to unfold. See Chartier v Greaves at para 64(h), (i), (j). Yet neither does this mean that judges are simply to reflect or reproduce police perspectives on events. Judges maintain their oversight role.

[218] The jurisprudence properly captures the judicial evaluative perspective by describing it as a “modified objective standard:” Crampton at para 43 (or in Nasogaluak ’s formulation at para 34 , the test is “subjective-objective”). The standard is “modified” because “the court is to place itself in the shoes of the officer and assess whether reasonable grounds existed for the actions taken:” Crampton at para 20 .

What a defendant knew (or should have known) and the circumstances or context in which the defendant’s conduct took place (“given the circumstances faced by the police officer:” Crampton at para 21 ) must be considered in the assessment of whether or not force used was excessive. But it is not a defendant’s subjective impressions that govern. The assessment is objective. Given the facts known, given the context and the timing, the question is whether the use of force was reasonable.

More precisely, the question under s 25(1) is whether the use of force was reasonably necessary for its purpose. [219] The language of s 25(1) qualifies necessity with reasonableness.

The doing of a required or authorized act and the use of as much force as is necessary for that purpose is justified “if he acts on reasonable grounds.” The reasonable grounds clause, in my opinion, qualifies both “in doing what he is required or authorized to do” and “in using as much force as is necessary for that purpose.” [220] Justice Lebel referred in para 32 of Nasogaluak to the use of force being “constrained by the principles of proportionality, necessity and reasonableness.” Necessity and reasonableness are statutory constraints. Subsection 25(1) does not use “proportionality” language.

Justice Gates made the following observation in R v Angstadt , 2015 ABQB 547 at para 50 : [50] …. There appear to be no Alberta decisions that explain what impact, if any, the language in Nasogaluak has had on the third element of the Crampton test, which examines only whether the force is “unnecessary.” Nonetheless, in my view, Nasogaluak is consistent with Crampton .

At para 34 of Nasogaluak , the Supreme Court held that s 25(1) “essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances.” [221] Because the standard of assessment is reasonableness in the circumstances, and because reasonable conduct embraces a spectrum of actions, bordered by deficiency on the one hand and excess on the other, latitude or a margin of appreciation must be extended to police decision-making.

Thus, Justice Fruman wrote in Crampton at para 22 that “[t]he police are often placed in situations in which they must make difficult decisions quickly and are to be afforded some latitude for the choices they make;” and Justice Binnie wrote in Asante-Mensah at para 73 that “[a] certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances.” See also Nasogaluak at para 35, Bencsetler at para 153, Angstadt at para 52(b). [222] Justice Fruman further commented in Crampton at para 44 that [44] Police officers act in dangerous and unpredictable circumstances.

No doubt a trained police officer will have instructions and a game plan to follow when entering premises to execute a search warrant. But the officer will have to react to the circumstances that present themselves. Accordingly, police officers will be exempt from liability “if they use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves”: Levesque v Zanibbi , 1992 CarswellOnt 2832 at para 17 (Ct J (Gen Div)).

To similar effect, see Bolianatz v Edmonton Police Service , 2002 ABQB 284 , Bensler J at para 36. [223] Hence, the protection of s 25(1) is not lost if a defendant fails to use the least amount of force that would have achieved the desired result: Crampton at para 45 ; R v Gangl , 2011 ABCA 357 at 71, affg R v Gangl , 2010 ABPC 105 , Matchett PCJ, as he then was at para 71; Chartier v Greaves at para 64(k); Bencsetler at para 150 .

That is, the assessment is not done through the lens of “hindsight:” Angstadt at para 52 (c) [224] The fact that a suspect was injured by police conduct does not necessarily establish that the police used excessive force. The nature of an injury, though, may have probative value as evidence of the amount of force that was used and so on the issue of whether that amount of force was or was not more than was reasonably necessary in the circumstances: Bencsetler at para 155 ; Angstadt at para 112 . [225] All distinguishable phases of police use of force against a suspect must be assessed.

An initial justifiable use of force does not immunize subsequent conduct from being found to be excessive force.

An initial unjustifiable use of force does not taint all subsequent conduct with the characterization of excessive force... [ 104 ] The factors informing the assessment of police force are detailed in Day in paragraph 225 (citations removed): Factors relevant to assessing whether police use of force was or was not excessive include the following: events preceding arrest • nature and seriousness of offence • link of suspect to offence • flight and nature of flight • information about suspect, offence, and flight received by officers number of suspects personal characteristics of suspect • size • age

• apparent health actual or apparent intoxication of suspect by alcohol or drugs actual or apparent violent mental disorder or violent mental state of suspect actual or believed possession of weapons by suspect • nature of information about suspect’s weapons • nature of weapons environment of arrest • presence of third parties hostile to police • nature of space • individuals at risk - third parties, police conduct of suspect in interaction with police • immediate manifest compliance • resisting arrest or control • attempted escape • fighting with police police conduct preceding arrest time between confrontation of suspect and execution of arrest size and age of police officers number of police officers involved whether the police officers were organized; carried out a plan specialized training of police officers involved whether police used weapons – if so, nature of weapons • OC spray, batons, conducted energy weapons, firearms type of physical contact • number of techniques applied • restraining holds, pressure point manipulation, joint locks, blows with hands, blows with knees, other strikes • degree of force used physical status of suspect when blows received police motivation in applying force • to control suspect, eliminate risk • revenge, anger, malice duration of use of force • cessation after suspect is secured • continuation after suspect is secured injuries to suspect [ 105 ] The question of whether police used only necessary force in arresting Paul was a central issue in this trial.

Considerable evidence was adduced with the parties adopting polarized positions. The Plaintiff argued the force deployed was egregiously excessive; the Defendants counter that such police force was clearly required. In advancing their arguments counsel also disagreed on the specific nature of police force that was used. [ 106 ] Events preceding Paul’s arrest and the surrounding environment are relevant factors informing the use of police force. Cst.

Quan and his partner, Cst. Pshebnicki, attended the Iron Horse in response to a radio call requesting assistance in dealing with a patron who was refusing to leave the bar. They were both in uniform. [ 107 ] The environment of the arrest was inherently unpredictable. It occurred in a nightclub shortly after “last call.” There was a “whole mob of people present.” [ 108 ] Cst. Quan observed Paul in a physical altercation with bar staff. He heard Paul say “Don’t touch me again or I’ll kill you” to Szymanski, an Iron Horse bouncer.

Paul appeared angry and intoxicated. [ 109 ] The conduct of Paul from the very outset of his interaction with Cst. Quan also provides necessary context in determining police used only necessary force. Cst. Quan initially attempted to calm Paul. After confirming with staff that Paul was not permitted to remain on premises, Paul was directed to leave. He was cautioned that arrest would follow for obstruction if he did not comply. Paul refused and invited an arrest. [ 110 ] Cst. Quan next handcuffed one wrist. Paul refused to permit handcuffing behind his back.

He then physically resisted handcuffing by pushing and shoving Cst. Quan. They both engaged in this type of behaviour as they moved along a bar wall. Cst. Quan was attempting to force Paul to the ground with assistance from Iron Horse staff. He recalled Paul “falls down on his butt.” [ 111 ] Cst. Quan, from a brief exchange with Paul, believed the resistance had ended. Paul “said he was done.” [ 112 ] Paul was brought to his feet to complete the handcuffing. Paul refused to cooperate and with a swinging motion struck a staff member standing beside Cst.

Quan with his left hand. [ 113 ] In justifiable response to the assault (and preceding circumstances), Cst. Quan deployed his baton as a visual and audio deterrent. It was not used to strike Paul at that time. Cst. Quan believes he used pulling, shoving, and arm bar takedown techniques to force Paul to the ground on the outside patio. Iron Horse staff and Cst. Pshebnicki assisted. [ 114 ] Paul was “kicking and flailing” on the ground. “There’s a bunch of bodies”. Cst. Quan placed his knee on Paul’s back to gain control. [ 115 ] At one point during the struggle, Cst.

Quan’s knee slid from Paul’s shoulder to the ground. Any knee contact to Paul’s neck was transitory, accidental, and arose from Paul’s resistance. Paul continued to flail and flip to avoid further handcuffing. Cst. Quan then placed his baton on the ground as both hands were required to complete handcuffing. After this occurred, he retrieved his baton. [ 116 ] Cst. Quan acknowledged his baton did strike Paul’s face. Although uncertain, he believed this occurred after Paul was fully handcuffed. He did not know how that occurred adding “….it was an accident.

I didn’t intend to hit him in the face, and all I remember was trying to hold on to the baton, making sure it wasn’t lost, but then he started to bleed from…I saw blood.” [ 117 ] I previously accepted that Cst. Quan deliberately deployed the baton only as a deterrent. I also found the subsequent baton strike of Paul was deliberate. However, I also concluded the location of that strike was accidental. It occurred in a confusing, violent melee. That single baton strike was not an excessive use of force given Paul’s continuing aggression despite use of other police methods. At most it was an error of judgment.

That decision must not be judged using the focused lens of hindsight. [ 118 ] The physical injuries alleged to have occurred from police force are relatively minor. There is no dispute that a chipped tooth, facial bleeding and minor bruising and abrasions resulted. The paramedic who first encountered Paul described the cut on the bridge of his nose as a “small non-suterable laceration.” However, as will subsequently be explained, I am not satisfied that a nose deviation resulted, or that mental health issues, notably post traumatic stress disorder arose from this incident.

The nature of accepted injuries does not provide probative value suggesting the force employed by Cst. Quan was excessive. [ 119 ] In examining the actual circumstances and full factual context, I conclude that a constellation of factors drive the conclusion that the force applied by Cst. Quan to Paul was objectively reasonable. [ 120 ] In the course of approximately five minutes Cst. Quan was confronted with a dangerous and unpredictable situation. Paul presented with multiple signs of impairment. His immediate behaviour was confrontational with Iron Horse staff and police.

Police heard him utter a death threat to Szymanski. Paul became increasingly aggressive, volatile, and unpredictable. His conduct quickly escalated from verbally obstructing a police officer to resisting arrest to committing an assault. The response of Cst. Quan necessarily intensified. Cst. Quan’s conduct, viewed both separately and sequentially, was properly and necessarily responsive.

His actions were required and motivated by the duty to control Paul and eliminate risk to police, staff, and other patrons. [ 121 ] I conclude the Defendants have proven on a balance of probabilities that the battery committed by Cst. Quan against Paul was justified under Criminal Code section 25(1) . Resultingly, Cst. Quan is not liable for the tort of battery. iii. Responsibility for Iron Horse Staff Conduct [ 122 ] It is undisputed that a number of Iron Horse staff members (including Szymanski) applied non-consensual force to Paul in removing him from the premises and assisting Cst.

Quan during the arrest sequence. This conduct constitutes battery unless an exception applies. [ 123 ]

Section 25 of the Criminal Code offers a potential defence to the conduct of Iron Horse staff to any conduct which constitutes an assault or battery.

Section 25 states in part: 25

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law ... ...

(

c) in aid of 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 necessary for that purpose. [ 124 ] Iron Horse staff acted on reasonable grounds in physically removing Paul from the premises. In their presence Paul had refused to leave upon police request and resisted arrest. Cst. Quan had direct knowledge of the grounds upon which Iron Horse staff acted. [ 125 ] Cst. Quan was extensively questioned about Szymanski’s role in restraining Paul.

I accept his testimony that he recalled Szymanski’s foot was located on Paul’s “upper back trap area”, and “the top part of the portion of his back...” He steadfastly maintained this testimony during a vigorous cross-examination which included multiple referrals to video segments. In doing so he denied suggestions that Szymanski’s foot was positioned on Paul’s head. Additionally, Cst. Quan’s explanation that this did not occur because his hand was in that location immediately beforehand supports his recollection. [ 126 ] After handcuffing was completed Cst.

Quan was aware that Szymanski had a foot placed on Paul’s back. Cst. Quan recalled that Paul “calms down” after observing blood on the ground shortly before handcuffing was completed. However, Cst. Quan stated “I’m still cautious of it.” That ongoing concern for safety was legitimate given the violent encounter. It also explains why Szymanski’s foot placement was appropriate. Cst. Quan was able to recall the specific location of Szymanski’s foot as he had just beforehand placed his knee on that same area. [ 127 ] Immediately upon completing handcuffing Cst.

Quan was focused on recovering from the scuffle: …I get up. I catch a breath. I collapse my baton. I put that away and then I give Staff Sergeant Fedechko kind of an idea of what’s happened. [ 128 ] Under the circumstances, the preoccupation with various tasks was understandable. As a result of attending to these necessary details Cst. Quan was entirely unaware of Szymanski’s use of excessive force. [ 129 ] Cst. Quan’s entire interaction with Paul was brief, unpredictable, and tumultuous. Multiple persons were engaged. Cst. Quan’s focus during the melee was properly placed upon Paul.

The observations of Justice Renke in Day at para 165 are apposite in the circumstances of this case: However, in violent encounters, “tunnel vision,” a focusing on what one has to do and what one is doing – as opposed to anything else that might be going on in the environment – is natural. This sort of focus would be expected particularly if the violence was unexpected and the participant did not enter into the violence as part of planned and trained routine (I have in mind room clearing by a tactical unit, which does depend on environmental awareness).

In fact, in a sudden and rapidly evolving violent incident, it would be highly unlikely that a participant would make panoramic observations. Observation of others as opposed to taking care of one’s own job at hand would be a good way of becoming a victim. [ 130 ] I find Cst. Quan was not aware, for justifiable reasons, of any Iron Horse staff conduct that constituted an excessive use of force. Accordingly, Cst. Quan was under no obligation to intervene in their actions. iv.

False Imprisonment [ 131 ] The elements of the tort of false imprisonment are summarized in Fridman’s Law of Torts at pages 81-82: An action for false imprisonment lies where a person is restrained against his or her will without authority of law. If someone is improperly or unlawfully detained, it is immaterial that little force is used in connection with the detention. However, even if a detention is proper or lawful, the use of excessive force may amount to false imprisonment or battery. [ 132 ] The Defendants have satisfied their onus of proving the arrest of Paul was lawful.

The immediate physical restraint of Paul and subsequent placement in police cells clearly constitute detention against his will. In considering all surrounding circumstances I conclude that police conduct during Paul’s detention was reasonable and did not involve unnecessary force. [ 133 ] Paul specifically argues it was unreasonable for him to remain handcuffed after the scuffle ended. I disagree. Mr. Paul had just been charged with crimes of violence. He had exhibited aggressive and unpredictable behavior.

Continuation of his volatile, belligerent behavior when placed in a cell at the Strathcona Police Station further support the need for ongoing handcuffing. Signs of alcohol impairment and mental instability presented. The continued handcuffing was necessary to protect all persons including police and medical staff who encountered Paul after his arrest. In drawing this conclusion I recognize the evidence is unclear on when the handcuffing while in custody concluded.

Even assuming Paul remained in handcuffs during the entirety of his Strathcona cell placement that restriction was reasonably necessary for safety purposes. [ 134 ] During that detention police also arranged for medical care by Edmonton Medical Services personnel. The attending paramedic characterized Paul as “quite belligerent” and “extremely uncooperative”. Additionally, Cst. Quan also generously exercised his discretion to allow personal access by Paul’s parents. [ 135 ] Paul was subsequently transported to Downtown Division for arrest processing.

A decision was made by a supervising officer (or officers) that Paul was to be lodged in cells rather than immediately released. This decision was grounded in a legitimate police concern that Paul could repeat violent behaviour if released given his intoxication and behaviour in custody.

[136] The detention was concluded and Paul released in a timely manner upon police concluding necessary processing. [137] The Plaintiff’s claim of false imprisonment fails. v.

Negligent Investigation [138] In Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para 68 the Court pronouncedthe appropriate standard of care in cases of alleged negligent investigation as that of a “reasonable police officer in all thecircumstances.” [139] At para 73 the Court discussed judicial application of that standard: ...This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation.

Like otherprofessionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds ofreasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than thatdeemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fallwithin the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached.

The standardis not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in thecircumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies ofinformation. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which causeunfortunate results, without breaching the standard of care.

The law distinguishes between unreasonable mistakes breaching the standardof care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach thestandard of care (Lapointe v Hôpital Le Gardeur, (SCC), [1992] 1 SCR 351; Folland v Reardon (2005), (ON CA), 74 OR (3d) 688 (CA); Klar, at p 359). [140] In this case Cst. Quan was confronted with an urgent, violent scenario in a nightclub. The choices he made under the prevailingcircumstances in investigating and charging Paul were reasonable. [141] The subsequent investigation conducted by Cst.

Quan is marked by some mistakes and missteps. Deficiencies in Cst. Quan’sarrest reports, and police failure to obtain video footage from the Iron Horse are, however, best characterized as errors in judgment. Thatsame description applies to Cst. Quan’s subsequent discussions with Paul’s family. Perfection or even optimal behaviour is not requiredof police in their investigations. Cst. Quan’s conduct falls within the spectrum of reasonableness. The standard of care threshold issatisfied. C.

The Monkey Island Incident [142] In final argument, Paul alleged wrongful arrest, battery, and false imprisonment against Constables Begin and Deluca arisingfrom their encounter with Paul at Monkey Island on December 22, 2007. i. Lawfulness of the Arrest [143] The central legal issue in dispute concerns the lawfulness of Cst. Begin’s arrest of Paul at Monkey Island. [144] Counsel for Paul argues police did not have grounds for a lawful arrest as Paul was not found committing an offence.Accordingly, Paul was not legally obligated to provide the requested identification. Wilful obstruction did not occur.

The Defendants’counsel submits it is misleading to suggest Paul’s arrest resulted from his failure to produce identification when requested by police.Rather, the arrest was based upon Cst. Begin’s belief that Paul was obstructing their ongoing investigation of a “bottling” assaultinvestigation. [145] Section 495(1) of the Criminal Code contains the power of a police officer to arrest without a warrant. It reads: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [146] The general test for a lawful arrest without warrant is found in R v Storrey, (SCC), [1990] 1 SCR 241 at para17: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically, they are not requiredto establish a prima facie case for conviction before making the arrest. [147] Paul was arrested for unlawfully obstructing Cst. Begin in the execution of his duty.

Section 129(

a) of the Criminal Codecodifies that offence. It reads:

129 Every one who (

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, ... is guilty of (

d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (

e) an offence punishable on

summary conviction. [ 148 ] A lawful arrest for the offence of obstructing a police officer contrary to Criminal Code

section 129 (

a) requires that police must have reasonable grounds that the officer was engaged in the course of his duties and the purpose of the accused’s actions was to obstruct the officer. Conduct of Constable Begin [ 149 ] There is no disagreement that Cst. Begin was engaged in the execution of his duties where he interacted with Paul at Monkey Island. This is supported by the evidence. [ 150 ] Cst. Begin was in uniform and on duty when he and his partner, Cst. Boonstra, received a 1:33 a.m. radio call directing them to attend at Monkey Island.

That police dispatch advised that: an incident that had occurred at Monkey Island, came across as a bottling or somebody had been hit by a bottle or with a bottle ... and I responded to Monkey Island to investigate that incident. [ 151 ] Upon arrival, Cst. Begin took various steps to investigate the reported bottling incident. For example, he:

a) Positioned himself to best survey the approximately 100 patrons for apparent injury,

b) Spoke with a patron (later identified as Ziad) who had received a “cut or a gash on his forehead”,

c) Questioned a patron (later identified as Paul) about his reasons for escorting Ziad to a waiting vehicle despite police assurances an ambulance was on route,

d) After Ziad departed, repeatedly attempted to obtain an explanation from Paul about what had occurred,

e) Repeatedly (and unsuccessfully) requested Paul to produce identification “for the purposes of [the] investigation”,

f) Ultimately arresting Paul for obstruction of a police officer for his refusal to provide identification. [ 152 ] The entirety of these sequential investigative steps occurred during the course of Cst. Begin’s duties. They were executed, indeed necessary, to meet his common law and statutory duty to investigate the reported “bottling” assault. [ 153 ] The second element of the offence of obstruction of a police officer requires that the purpose of the accused’s actions was to obstruct the police officer. In the circumstances of this case, Cst.

Begin had reasonable grounds to believe that offence element was satisfied. [ 154 ] Cst. Begin had been dispatched to Monkey Island to investigate a “bottling” incident. Shortly after arrival he encountered an unknown male (Ziad) with a “cut or a gash to his forehead.” It is a reasonable inference that this injury is consistent with a “bottling” assault. He observed Paul intervene and escort Ziad to a vehicle which then departed with Ziad inside. [ 155 ] Paul was aware through Cst. Begin that Emergency Medical Services were enroute. Cst.

Begin testified Paul “didn’t stop to engage with us and have a conversation with us as to why he was taking Ziad outside of Monkey Island.” [ 156 ] Despite repeated questions from police, the only response provided by Paul was that he was having Ziad taken to the hospital. [ 157 ] Cst. Begin followed Paul into Monkey Island while repeating the “same questions as to why he had removed Ziad.” Cst. Begin “grabbed” Paul’s right arm “to stop him from walking away.” [ 158 ] Cst. Begin explained why he continued to question Paul after Ziad’s departure: Because I – we hadn’t – at that point, we had not identified Ziad.

We had not identified as to what his involvement in the incident we were there investigating was. We knew he had an injury on his head, but we didn’t know what involvement - - what potential other involvement he had in the incident that we were there to investigate. [ 159 ] Cst. Begin described what occurred inside Monkey Island: So we were going back and forth. I was asking him for the identification. He was asking me to release his arm.

And after three times of asking him for identification for the purposes of the investigation, I let – I – well before that, I told him that if he didn’t produce [identification], that I would be arresting him for obstruction, and then after the third time I had asked for identification and it was not produced, then that’s when I placed him under arrest for obstruction.

[ 160 ] Cst. Begin detailed his grounds for arresting Paul: -- I had observed him remove somebody who was part of the investigation, so as I mentioned before, I observed him make no effort to engage with Cst. Boonstra or I, kind of as I mentioned before, went into the huddle, kind of walked into the huddle and had Ziad stand up and basically walked him out the back door of Monkey Island to an awaiting vehicle, and the vehicle drove away. [ 161 ] Cst.

Begin testified to his belief that “I had reasonable and probable grounds to believe that [Paul] had obstructed me by removing Ziad from Monkey Island.” [ 162 ] The circumstances of this case, viewed in their entirety, support a finding that Cst. Begin found Paul “committing a criminal offence.” [ 163 ] While conducting a bottling investigation at Monkey Island, Cst. Begin witnessed Paul remove an injured patron from the premises. The forehead gash, as a common sense inference, was consistent with a recent bottle cut.

The removal, for professed medical care, occurred despite Paul’s knowledge that an ambulance was already enroute to the Iron House. Paul also refused to meaningfully engage with police to provide further information abut his conduct despite repeated requests. His repeated refusal to provide identification is consistent with his perceived efforts to impede police. [ 164 ] Cst. Begin personally believed he had reasonable and probable grounds to arrest Paul for obstruction as a peace officer. Those grounds, based upon the totality of his “bottle” investigation are also objectively justifiable.

The arrest of Paul was lawful. [ 165 ] As Cst. Begin lawfully and properly found Paul committing a criminal offence the need to identify him was triggered. In that situation, Paul’s refusal to provide identification, in itself, “gives rise to a wilful obstruction.” (See R v Lansdell , 2009 ABPC 355 at para 49 ). ii. Battery [ 166 ] The Defendants appear to suggest that Cst. Begin’s physical contact with Paul inside Monkey Island was “de minimus” and does not constitute battery.

However, any touching may amount to a battery and no proof of damages is necessary to establish battery ( Day at para 197 , citing from Turton at para 72). The determination of whether battery occurred is context specific. [ 167 ] The evidence is clear that Cst. Begin firmly grabbed Paul’s right arm shortly before arresting him. Viewed contextually, that action was intended to, and did cause offensive contact. It constituted battery. [ 168 ] However, I also find the Defendants have proven on a balance of probabilities that this battery was lawfully justified under Criminal Code

section 25 . Cst. Begin was investigating a serious violent incident. He had multiple grounds to reasonably justify his view that Paul was obstructing that investigation. He also was properly concerned that Paul, by continually walking away, was actively evading police. He grabbed Paul’s arm to prevent this. That contact was brief, minimally invasive and constituted only the force necessary to have an investigatory discussion with Paul. Conduct of Constable Deluca [ 169 ] Cst. Deluca was dispatched to attend Monkey Island where he arrived at 1:30 a.m. on December 22, 2007.

He described a “chaotic scene” upon arrival. Approximately 10 to 15 patrons were outside “yelling and screaming” and around 50 patrons were inside. As he entered a “single glass bottle ... came flying ... there was additional glass bottles broken - - on the ground already.” [ 170 ] The disturbance created “a sense of elevated officer safety”. In response, Cst. Deluca withdrew his CED (“taser”) from its holder and placed it in a “low ready position”. He also removed the cartridge rendering the taser inert. A red laser targeting light was activated for “social control” purposes. [ 171 ] Cst.

Deluca observed that “some patrons had started to gather around” Cst. Begin and Paul. Given the dispatch request reason and “heightened” tensions on the dance floor” he moved closer to them. Cst. Deluca then assumed an “officer safety triangulation” position to gain an improved and safe vantage point. [ 172 ] He observed Cst. Begin in an “animated” discussion with Paul who was unknown to him at that time. At that time, he overheard some of the conversation. Cst. Deluca agreed with the Plaintiff’s counsel the conversation may have involved Cst.

Begin stating “I want you to identify yourself; Jason Paul is giving him expletives, fuck you, I don’t have to; and then Cst. Begin says, if you don’t, you’re under arrest.” [ 173 ] While standing beside Cst. Begin, he heard that officer arrest Paul. He also testified that Cst. Begin “took hold of his arm” and issued a verbal direction. Cst. Deluca did not “know what grounds Cst. Begin had to arrest him.” [ 174 ] I conclude there is no evidentiary basis to support the Plaintiff’s argument that Cst. Deluca should have intervened to terminate Paul’s arrest. [ 175 ] I also find that, viewed in context, Cst.

Deluca’s activation and use of the taser was reasonable. The police radio dispatch cited a “large disturbance involving glass bottles.” Upon entry into Monkey Island he remembered broken glass on the floor and a flying bottle. There were multiple disturbances inside the bar, a limited number of police were present. [ 176 ] In response to the expletives then issued by Paul and “lack of complying with directions” Cst. Deluca activated the taser’s red laser light. It was pointed at the ground and “seemed to cause immediate compliance” from Paul. [ 177 ] These circumstances justify Cst.

Deluca’s deployment of the taser. The targeting light was only activated in response to the observed interaction with Cst. Begin and Paul. That visible light remained purposefully pointed at the ground rather than Paul. Cst.

Deluca’s use of the taser was a careful, measured, and reasonable tactic necessary to encourage Paul’s compliance and ensure the safety of police and persons present at Monkey Island. [ 178 ] I conclude that Cst. Deluca was not involved in the arrest or detention of Paul. His role was confined to ensuring “officer safety.” This included “following” the parties through the Monkey Island premises following Paul’s arrest. Any possible physical contact between Cst. Deluca and Paul was fleeting and inconsequential. Indeed, Paul testified that no such contact occurred. iii. False Imprisonment [ 179 ] The impri

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