O’Shea v. City of Vancouver Date:, 2015 BCPC 398

Citation: O’Shea v. City of Vancouver Date: 20151218 2015 BCPC 0398 File No: 10-30033 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: BOBBI TAMARA DENISE O'SHEA CLAIMANT AND: THE CITY OF VANCOUVER, JAIL SGT. MATT CLARK, JENNIFER FONTANA and RAMNDEEP GREGORIOU DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.N. BAKAN Counsel for the Claimant: D. King

Counsel for the Defendants: I. Dixon Place of Hearing: Vancouver , B.C. Dates of Hearing: June 2, 3, July 22, 2015 Date of Judgment: December 18, 2015 Introduction [ 1 ] This action relates to the use of restraints on Bobbi Tamara Denise O’Shea, at the Vancouver City Jail on March 27, 2008, following her arrest for being intoxicated in a public place and during her subsequent detention.

The Vancouver Police Department (VPD) officer that made the decision to apply the restraints and the special constables, acting as jail guards, (“guards”) that applied them, were employees of the defendant, City of Vancouver, (the City). [ 2 ] Ms. O’Shea alleges she was wrongfully or negligently restrained by VPD officers and guards, and suffered injury when the guards immobilized her feet in a modified restraint device, known as the Hobble, while her hands were cuffed behind her back. She alleges this restraint was an assault not justified by s. 25 of the Criminal Code 1985 C-46 or otherwise. [ 3 ] Ms.

O’Shea further or alternatively, alleges that the individual defendants and City were negligent and liable for the injuries and damages she alleges arose from restraint in the Hobble. [ 4 ] Ms. O’ Shea failed to provide the City with the two month notice required by s. 294(2) of the Vancouver Charter . She alleges that she had a reasonable excuse for failing to provide notice to the City within two months’ notice of her claim as required by s. 294(2) of the Vancouver Charter , that her failure to give this notice did not prejudice the City, and thus her claim should not be statute barred.

In the alternative, if the claim is statute barred against the City, she alleges the individual defendants are liable in their personal capacity for gross negligence or wilful misconduct. [ 5 ] Ms. O’Shea claims general damages for pain and suffering, aggravated damages, punitive damages, interest and costs against the defendants. She withdrew her claim for special damages. [ 6 ] The defendants deny liability.

The City states the action should be dismissed against it and its employees, as the requisite notice required by s. 294(2) of the Vancouver Charter was not provided. [ 7 ] In regards to the individually named defendants, it is alleged they acted in good faith in the performance of their duties and were not “grossly negligent, dishonest, malicious” or guilty of wilful misconduct.

The City further states that the defendant employees actions were justified by law and plead provisions of the Criminal Code , and Police Act , RSBC 196, c. 367, as a complete defence. [ 8 ] In the alternative, the defendants state that if they, or any of them, are liable, the claimant did not sustain the injuries or damages alleged, as a result of the actions of any of the defendants, and that there is no causal connection between events of March 27,2008 and the injury and damages claimed.

In the further alternative, the defendants state that if the claimant suffered any of the damages alleged, they were caused or contributed to by her negligent or wrongful conduct and plead her failure to mitigate and contributory negligence pursuant to the Negligence Act , are SBC 1996, c. 33 . [ 9 ] This matter proceeded to trial on June 2, 2015. Final submissions were made on July 22, 2015. The first Notice of Claim was filed on March 29, 2010. On May 6, 2012, the defendants were successful in their application to dismiss the action on the grounds Ms.

O’Shea had not given the requisite notice required by s. 294(2) of the Vancouver Charter . This dismissal was appealed to the British Columbia Supreme Court. On February 7, 2013, the dismissal was overturned and the action remitted back to Provincial Court for trial. Issues 1 (

a) Did the individual defendants assault Ms. O’Shea by placing her in the Hobble? (

b) If so, were their actions justified? 2 (

a) Were the individual defendants negligent, and the City thus vicariously negligent for using the Hobble to restrain Ms. O’Shea? (

b) Was the City negligent for failing to provide reasonable policies, training and supervision or control of its employees in regards to the use of restraints? (

c) If any of the defendants were negligent, was Ms. O’Shea contributorily negligent? 3 (

a) Is Ms. O’Shea’s claim barred pursuant to s. 294(2) of the Vancouver Charter or did she have reasonable excuse for failing to provide the requisite notice, that did not prejudice the defendants? (

b) If so, did acts or omissions of the individual defendants constitute gross negligence or willful misconduct? 4. If there is liability on one or more of the defendants, did Ms. O’Shea sustain injury and damages, and if so, what is the quantum of damages? Witnesses

a) For Claimant

Ms. O’Shea testified on her own behalf. A medical-legal report prepared by Dr. Mohammed dated March 9,2014 was filed as expert evidence on behalf of the claimant. The defendants did not request Dr. Mohammed attend the trial for cross-examination.

b) For the Defendants Sgt. Matthew Clark - at the material time Officer in charge of the jail. Sgt. Clyde Milligan - Sgt. in charge of tactical training and use of force (other than firearms) for VPD officers and jail guards for the last 10 years. James McDonald - at the material time, a special municipal constable acting as the jail guard supervisor. Jennifer Fontana - at the material time a special municipal constable acting as a jail guard. Andrew Peters - at the material time a special municipal constable acting as a jail guard.

Janine Ziani - at the material time a special municipal constable acting as a jail guard. [ 10 ] All of the witnesses that were special municipal constables on March 27, 2008 subsequently became VPD officers. All defence witnesses still worked with the VPD at trial. For clarity, I will refer to the Defence witnesses by their position with the VPD on March 27, 2008. FACTS [ 11 ] Ms. O’Shea was born in Toronto, Ontario on February 6, 1971. Her mother was Algonquin and her father was Ojibwe. Ms. O’Shea moved to Vancouver, British Columbia at the age of 19. She has four children, aged 12 to 23 at trial. [ 12 ] Ms.

O’Shea’s life has been impacted by the sad legacy of Canada’s residential schools, attended by her mother, maternal aunts and uncles. Her family has a history of substance abuse. [ 13 ] When she was two years of age, she said her father first gave her alcohol to drink, for medicinal purposes, in lieu of prescription medication. [ 14 ] Ms. O’Shea was born with her esophagus attached to her windpipe. She developed breathing problems at a young age and underwent a number of surgeries and hospitalizations for this condition as a child. Due to her health problems, she missed a large amount of school.

Her parents had an unstable relationship and the family frequently moved. She once attended four different schools in a year. She quit school in grade 9 but has completed two years of high school over the last 15 years. [ 15 ] Ms. O’Shea first used crack cocaine when she was 13 years old. She was addicted by the age of 15. She has had intermittent relapses with crack cocaine and alcohol abuse since then. [ 16 ] Ms. O’Shea’s was physically abused and neglected by her parents and sexually abused by several men before reaching adulthood. [ 17 ] Ms. O’Shea had a history of anxiety prior to March 27, 2008.

This is said in the EHS Crew Report (Crew Report), dated March 27, 2008 March 27, 2008 [ 18 ] On the morning of March 27, 2008, Ms. O’Shea and her boyfriend got into a fight. She said he was abusive. I accept her evidence that she left his house crying, upset and in an anxious state. [ 19 ] Shortly after leaving, she met a male acquaintance, who was with a woman that she didn’t know. She went with them to a dark garage where she consumed crack cocaine.

She recalled being told people had been beaten up in this garage and said she “freaked out” and ran onto Fraser Street, yelling for help and that 911 be called. [ 20 ] Police Constable 2566 attended the area at approximately 0924. At this point, Ms. O’Shea was sitting in the passenger seat of a stranger’s vehicle. The VPD Occurrence Report further states that the owner of the car had asked the claimant to get out of the vehicle and that she refused. He said the claimant never threatened him or harmed him. Ms. O’Shea confirmed this on cross examination. [ 21 ] The Crew Report records Ms.

O’Shea was running in traffic after she had taken cocaine. It states she was arrested for her safety and a “wellness check” was done by the paramedics before she was transported to cells. [ 22 ] On past occasions when Ms. O’Shea had taken crack cocaine and suffered an anxiety attack, she said the police had attended and taken her to hospital for treatment. She thought that she would be taken to the hospital rather than jail. [ 23 ] The above report records the ambulance was at the scene at 0942. The chief complaint recorded in box 51 was “post anxiety.” The Constable asked her to leave the vehicle, which she did.

She was taken into custody. It records the Constable was told by Ms. O’Shea, that she was having an anxiety attack, was feeling afraid for her own safety, and wanted a ride out of the area. Ms. O’Shea would not or could not tell the officer why she was fearful but did admit to consuming crack cocaine earlier in the day. [ 24 ] At 0951, Constable 2566 arrested Ms. O’Shea for “state of intoxication in a public place”. Ms. O’Shea was transported to the Vancouver jail at approximately 1000 and booked into the jail at 1040. She was released at 1915 on March 27, 2008.

[ 25 ] The Vancouver Jail Arrest Report notes the time of 0950 under the heading “Time of Arrest and Charter ”. Under the heading “Medical Remarks” it is noted she was treated by EHS (Emergency Health Services) and was under the influence of crack cocaine. None of the boxes under the heading “prisoner alerts” contained a check mark. [ 26 ] Sgt. Clarke was the officer in charge of the jail at the time in question. His duties included maintaining the safety of both prisoners and staff. He had supervisory duties over the jail guards.

Jail guards have the status of special constables but do not have the status of full police officers. The regular guard supervisor was absent on the shift in question. James McDonald was the acting guard supervisor on March 27, 2008. At that time, he had been employed as a jail guard for two years. [ 27 ] Sgt. Clarke testified there were only nine jail guards on duty. The normal complement of jail guards was eleven. Three of the nine guards were female, six were male. Jail guards searched prisoners of the same gender. Ms. O’shea’s intake to the jail, including her body search, was done by the female guards.

A female guard placed her in the first cell. [ 28 ] Guard Peters testified that generally there were 40 prisoners in the jail at a time. In addition to checking on prisoners, the guards had other duties including searching prisoners on admission and cataloguing their effects. [ 29 ] Staff Sgt. Clarke reviewed the Jail Arrest Report shortly after Ms. O’Shea’s arrival at the jail. He was aware Ms. O’Shea had been running in traffic and was detained for being intoxicated by drugs, rather than alcohol.

He was uncertain one could be detained for drug intoxication and therefore crossed out H-SIPP (the abbreviation for intoxication in a public place) and re-wrote ‘Breach of the Peace’. [ 30 ] Sgt. Clarke stated that persons detained for Breach of the Peace are arrested because of violent behaviour putting themselves or others at risk. Those arrested for being intoxicated in a public place, are arrested because their intoxication makes them unsafe to themselves. [ 31 ] Ms. O’Shea was not violent to herself or others at the jail.

The Prisoner Observation Log contains no entries or marks in the boxes that are to be checked if a prisoner is violent or suicidal. [ 32 ] Sgt. Clarke had access to the Crew Report but does not recall whether he reviewed it. He did not provide a copy of it to the nurse. There was no evidence the Crew Report was provided to any other staff. [ 33 ] On arrival at the jail, Ms. O’Shea was searched by female guards and her property and her clothing, including her bra and underwear were taken from her. She was given only a white jumpsuit with Velcro closings to wear.

In order for her to use the toilet, it was necessary to pull the jumpsuit to below her waist leaving her upper body bare to her thighs. [ 34 ] Ms. O’Shea was not seen by a nurse prior to or after she had been placed in cells 120 and 119. She was not given an opportunity to speak to a nurse until just prior to her release at 1915. She declined this opportunity. Cell 120 [ 35 ] Ms. O’Shea was placed in cell 120 by a female guard at 1340. This guard was one of the two female guards that had done the intake and search of Ms. O’Shea. This cell was generally used for intoxicated female prisoners.

It had a toilet visible from the window in the cell door used for observation and a camera. There was no privacy screen. [ 36 ] The cell was monitored by visual checks through the cell window every 15 minutes and by video camera. The guards were required to record their observations in the Prisoner Observation Log (the Log). [ 37 ] Sgt. Clarke stated that at the time, female guards were preferred if available, to observe female prisoners. Guard Fontana was not aware of this. [ 38 ] After Ms. O’Shea was placed in cell 120, she was observed by a male guard.

The Log indicates Guard Peters did most of the relevant observations. She needed to use the toilet and says she asked the male guard, whose name she does not know, for a female guard to replace him, but was told none were available. She thus covered the window with toilet paper for privacy and refused to remove it unless a female guard was present. She readily admitted covering the window but denied she covered the camera. Sgt. Clarke’s notes state she covered both the window and camera with tissue. This was not based on his personal observation.

Whether or not she covered the camera is not relevant to my determination. [ 39 ] Ms. O’Shea perceived that the male guard(

s) watched her continuously which caused her to feel degraded. She said she told the male guard she was a victim of sexual abuse. There is no evidence that the male guard heard this nor other evidence that she was watched continuously. This is not relevant to the issue of restraint, which is the matter at issue, but is evidence Ms. O’Shea’s state of mind. Given the guard shortage on the shift and Log entries, I do not find she was watched continuously. [ 40 ] Ms.

O’Shea acknowledges she was very upset at having to use the toilet without privacy, in the presence of a male guard, and said some unkind remarks to the male guard that observed her between 1400 and 1600. [ 41 ] Guard Peters has no recollection of this shift. He stated that if he found a female had to go to the bathroom, her request to close the cell window would be accommodated. He stated females were not watched when they were going to the bathroom.

This is not correct given there was a camera in the cell. [ 42 ] He further stated that if a female guard was requested, it was easy to access the people guards as cell 120 was approximately 20 feet away from the booking area. I note however, the jail was short staffed on this shift with only three female guards and therefore it is likely a female guard was not available. Cell 119

[ 43 ] Ms. O’Shea did not remove the toilet paper she had placed, after several requests she do so. After several warnings, her hands were handcuffed behind her back and she was moved to cell 119 at approximately 1600. This was noted by Guard Peters in the Log. She was moved on the instructions of Sgt. Clarke. Cell 119 had no toilet. It has an observation window in the cell door and a video camera at the top of the cell wall. [ 44 ] Ms. O’Shea states that after she was placed in the cell, she was crying and felt devastated. She stated her nose was dripping which was a chronic problem.

She states she kept asking the guards for tissue repeatedly, but was ignored. She stated she asked for tissue paper for about 10 minutes without response. She denies she was intoxicated at this time but was very upset and anxious, and had become more so when she perceived the male guard looking at her constantly while she was in cell 120. [ 45 ] The Crew Report, noted Ms. O’Shea had a cold and bronchitis in addition to anxiety and depression. Ms. O’Shea stated she had chronic chest problems. In order to wipe her nose, she moved her cuffed hands to the front, blew her nose and wiped the discharge on the cell wall.

She denied she was violent or aggressive or that she had made any threats to hurt herself or others. She did acknowledge that she kicked the door in cell 119 when she was asking for assistance and toilet paper but was ignored. [ 46 ] She does not recall whether there was a camera in cell 119, but states she was crying heavily and concerned about her runny nose. She denies spitting or rubbing anything on the camera if there was one. [ 47 ] There is a contradiction between Ms. O’Shea and some of the defence witnesses regarding whether she smeared the camera with nasal discharge in cell 119. Sgt.

Clarke heard over the radio that she was smearing the camera. When he observed it on his computer screen, it was partially covered with what he believed was nasal discharge. He thought she was trying to prevent video and observation through the window. He was concerned she could rip the camera off the cell wall. He was concerned that her safety could be jeopardized if she could not be observed. He believed the best solution was to restrain her with her hands cuffed behind her back and with her ankles restrained by the Hobble. He instructed two female guards to apply the Hobble. [ 48 ] At 1615, after Ms.

O’Shea moved her hands to the front the second time, which she states she did to blow her nose, a guard told her to take two steps forward, sit on the floor, and cross her ankles. [ 49 ] Ms. O’Shea complied with what was being asked of her and sat on the concrete floor. She believes a strap was placed around her ankles. Her hands were handcuffed behind her back while she lay on the floor with her ankles strapped. She did not resist although she was upset. While guards and others were in the cell with her, she was not in pain.

The strap was then taken under the door so her ankles were cold from the straps under the door this way after the door was closed, she felt immense pressure. She described it is feeling her feet would come off. She had pain in her ankles, feet, legs and tail bone. She described the pain as the worst she has ever experienced. She said she began screaming at the top of her lungs and was clearly in distress. She describes her scream as one of pain. She felt this severe pain following for the approximate hour that she was in the Hobble. She described the pain as excruciating.

She could not move as her hands were handcuffed behind her. She was unable to move her feet as they were pressed against the door. She states no one came and spoke to her or checked on her or checked the device the entire hour she was in the device. [ 50 ] Ms. O’Shea’s counsel concedes she was observed through the cell door every 15 minutes. Her cell was not entered, as this would have released the restraint. [ 51 ] Sgt. Clarke was off shift at the time Ms. O’Shea was released from the jail as indicated in the 1844 entry.

The decision to release was made by the incoming officer in charge who came on shift at 1800. 1(

a) Did the individual defendants assault Ms. O’Shea by placing her in the Hobble? (

b) If so, were their actions justified? [ 52 ] I find that none of the individual defendants committed an assault or battery on Ms. O’Shea. The decision to place her in the Hobble was made by Sgt. Clarke. I accept his decision was made without malice or intent to harm or punish Ms. O’Shea. [ 53 ] Ms. O’Shea’s counsel submits that the use of the Hobble to restrain Ms. O’Shea was an excessive and unwarranted use of force constituting an assault on. Defence counsel takes the position that the placement of Ms.

O’Shea in the Hobble was a minimal use of force justified by s. 25 of the Criminal Code . [ 54 ] Whether the use of the Hobble in any circumstance constitutes a use of force is not established on the evidence. One must look to the specifics of each instance it is used. The VPD training video on restraint was viewed at trial. Sgt. Milliken, an experienced instructor and police officer, gave clear and reliable evidence on the history, purpose and use of the Hobble. When it is used to restrain individuals involved in combative activity, it clearly does involve a use of force that may be significant.

Individuals may need to be taken down to the ground and physically restrained so the Hobble can be applied. This is not one of these instances. Ms. O’Shea was cooperative with the placement and the use of force was not required. I accept Ms. O’Shea felt pain after the cell door was shut and the guards and officers had left her cell, but do not find any assault or battery occurred during or throughout the time the Hobble was in use. I find the defendants did not intend to cause Ms.

O’Shea pain or punishment in either the application or continued use of the restraint. [ 55 ] In the alternative, I find the use of the Hobble was justified pursuant in law, to ensure Ms. O’Shea could be monitored for her safety at the time in question. 2(

a) Were the individual defendants negligent in using the Hobble, and the City thus vicariously negligent? [ 56 ] While the issue in this case is limited to the restraint of Ms. O’Shea, the circumstances at the jail prior to her placement in the Hobble, inform the negligence analysis. [ 57 ] I find that there was a breach of the standard of care owed to Ms. O’Shea which the City is vicariously liable for. I fully appreciate the difficulties police officers and guards face in ensuring the wellbeing of prisoners in challenging circumstances. In this

case however, relevant information was not reviewed or acted upon which if it had been, would likely have prevented the situation escalating to the point where Sgt. Clarke determined there was no alternative but for Ms. O’Shea to be restrained to ensure she could be observed for her own safety. [ 58 ] The Crew Report recorded the following ‘Relevant Past History’ of Ms. O’Shea as: - Anxiety/Depression - Asthma - Arthritis - Recent cold [ 59 ] It further states that she took Ativan ‘PRN’. This is a common abbreviation for ‘as needed’.

It is likely most police officers know that Ativan is a drug commonly prescribed for anxiety. If a medication was recorded on the Crew Report, as here, and the officer was unfamiliar with it, I would anticipate he or she would review it with the jail nurse or other appropriate source. [ 60 ] Ms. O’Shea was arrested as HSIPP (Hold State of Intoxication in a Public Place). She advised she had ingested crack cocaine, was acting erratically and was suffering from heightened anxiety. As Sgt. Clarke stated, it was not known what exactly was in the street drug she had taken.

She thus needed to be closely monitored for adverse effects. No day de-tox bed was available so she was brought to the jail. [ 61 ] As stated in The Davies Commission Inquiry Into the Death of Frank Paul-Part 1-Overview and Executive

Summary: “Although public intoxication is still an offence in British Columbia, in practice it has been decriminalized for the past four decades. The Provincial Offence Act authorizes a police officer to take into custody a person who is in a state of intoxication in a public place and to hold the person without charge until they have recovered sufficient capacity to be released without danger to themselves of others, or without causing a disturbance.” (p. 15) [ 62 ] Sgt. Clarke has some recollection of this matter and had the assistance of his notes and duty report.

He was candid in stating that he changed the reason for her detention to Breach of the Peace because he did not know if one could legally be detained as HSIPP for drug rather than alcohol intoxication. [ 63 ] Sgt. Clarke was present when the Hobble was applied to Ms. O’Shea. I accept he reasonably believed “…she had lost the ability to manage herself and didn’t know why she did what she was doing” at this time. He did not record this observation but has an independent recall of it. [ 64 ] Sgt.

Clarke testified he was aware that on occasion, a prisoner that had taken an unknown substance became more intoxicated after being in custody. He agreed he was responsible for her Ms. O’Shea’s safety in the jail. [ 65 ] He had general training on the effects of cocaine and other substances but was not trained in predicting the outcome for those who have ingested these substances. He agreed that he and the jail staff are responsible for assessing prisoners and for getting medical attention for them if “there is a specific issue”. [ 66 ] Sgt. Clarke further agreed that although he changed the reason for Ms.

O’Shea’s detention, in reality she was treated as an intoxicated prisoner as the exact quantity and type of substance(

s) she consumed was unknown. [ 67 ] Ms. O’Shea was detained for her own safety. Sgt. Clarke’s reclassification of the reason for her detention to Breach of the Peace was based on legal rather than medical concerns. [ 68 ] I disagree with the defence written submission that the HSIPP policy in place at the jail did not apply in this case because Sgt. Clarke had changed the reason for her detention to Breach of the Peace. [ 69 ] I also find that a reasonable officer, in the position of Sgt. Clarke would have reviewed the Crew Report in regards to Ms.

O’Shea’s past medical history which included anxiety, depression, asthma and arthritis, and given a report to a nurse to review prior to the nurse’s assessment of Ms. O’Shea. I find this should have been done pursuant to the HSIPP policy in effect at the time. [ 70 ] The relevant jail policy in place on March 27, 2008 applicable was entitled 1.12.10 HSIPP-Hold State of Intoxication in a Public Place.

It required jail staff to inform nursing staff that an intoxicated prisoner had arrived at the jail, for the intoxicated prisoner to be medically assessed on arrival to the jail or shortly thereafter, for the nursing staff to visibly assess intoxicated prisoners admitted into the jail , to complete documentation on them and to conduct a more thorough assessment if required.

The nursing staff was to assess intoxicated persons every hour and if it appeared the person was at risk of aspirating, the prisoner was to be placed in the recovery position. [ 71 ] The Booking Officer admitting the prisoner was required to inform the jail NCO, Guard Supervisor and Duty Nurse of any medical alerts and to transcribe remarks and recommendations from the Crew Report and the Vancouver Jail Arrest report to the Prisoner Log Observation Log.

I infer this is because the guards generally only access the Log and rely on others to accurately transcribe relevant medical information onto it. [ 72 ] The Vancouver Jail Arrest Report form had a

section for Medical Remarks. The form states that any known medical condition including known drug use should be recorded. All that is noted on Ms. O’Shea’s Report is that she was treated by EHS and was under the influence of crack cocaine. The report does not include her medical history recorded in the Crew Report which included asthma, arthritis, anxiety, depression, and that she had a cold. The Medications

section is not filled in despite the Crew Report noting she took

Ativan as required. The “New Charge”

section of this report form is the

section where Sgt. Clarke crossed out HSIPP and replaced itwith Breach of the Peace. [73] The Prisoner Observation Log has even less information than the above Report. No medical information is recorded under thesection for ‘EHS Crew Report/Van Jail Arrest Report Medical Alerts’. The Log has no notation that the nurse or shift supervisor weregiven medical alert notification. The

section of the log where one could record whether the prisoner was violent or suicidal was notfilled in. [74] Sgt. Clarke stated that in his view, Ms. O’Shea would not have been able to speak to the nurse because of her intoxication andbeing unable to manage herself. He said it was only after he (or the person replacing him on the next shift) made the decision she wasno longer intoxicated that she would be allowed speak to a nurse. I find this is an incorrect

interpretation of the HSIPP policy. If shewere in this state, this is all the more reason for a nursing assessment. There are no records or any other evidence that Ms. O’Shea wasunable to converse or was disruptive in the jail until 1435. [75] This is the time Guard Peters charted in the Log that Ms. O’Shea was yelling and banging on the door of cell 120. [76] The guards were short staffed on the shift and there were only 3 female guards supervising all female prisoners. I find that therewas no female guard readily available at the time.

The regular guard supervisor was absent and the acting guard supervisor was not thatexperienced. [77] Given there was no note of Ms. O’Shea’s anxiety or other problems in the Log, it is likely the guards were unaware of heranxiety and other emotional problems, which I find were significantly elevated by her lack of privacy to use the toilet in cell 120 withoutbeing seen naked if someone looked through the door window or camera. On the whole of the evidence, I find that Ms. O’Shea was notgiven the option of being taken to a toilet she could use privately as male prisoners were.

I do not find any intent of the guards actedwilfully, maliciously or inappropriately towards Ms. O’Shea but their lack of information about Ms. O’Shea resulted in the situationescalating to her placing tissue in a manner that impeded the guard’s ability to observe her for her own safety. [78] Given the medical history recorded on the Crew Report, I find it was negligent the HSIPP policy was not followed and that Ms.O’Shea was not seen by a nurse prior to the application of the Hobble.

It is clear she had much chest congestion given the evidence ofdefence witnesses that she was or could obstruct both the cell window and camera with nasal discharge. While Ms. O’Shea did notaspirate or develop chest complications, being handcuffed with a cold and chest congestion would foreseeably increase one’s discomfortand anxiety. I find it did. I find Ms. O’Shea moved her hands from behind her back to the front twice to allow her to blow her nose andthat she did deposit some of the nasal discharge in the cell and there was the potential for her to obstruct observation through the windowand camera.

The jail staff was aware her nose was very runny as a result of this but a nurse was never called nor was Ms. O’Sheaprovided assistance in clearing her nose. [79] The failure of the police officers in charge to convey Ms. O’Shea’s medical problems to the guards on at least the Logdocument, resulted in their failure to take into account her medical and emotional problems, resulting in an escalation of her anxiety. Ifind the failure to follow the HSIPP policy, resulted in a breach of the standard of care to ensure Ms. O’Shea’s safety, for which the Cityis vicariously negligent.

I do not require expert evidence to make this finding. [80] The guards acted on Sgt. Clarke’s direction in the lawful course of their duties. I find no breach on their part. Sgt. Clarke wasnot grossly negligent nor did any act or omission on his

part constituted wilful misconduct. The action is thus dismissed against alldefendants but the City pursuant to s. 20 and 21 of the Police Act, RSBC 1996, c. 367. 2(

b) Was the City negligent for failing to provide reasonable policies, training and supervision or control of its employees inregards to the use of restraints? [81] I find the City is not negligent apart from its vicarious liability. The HSSIP policy was in place but not followed. [82] The policy of using male guards to observe female prisoners in cells has changed since 2008. Female prisoners now have moreprivacy when going to the bathroom. Ms. O’Shea has not proven, on the balance of probabilities that this policy was negligent nor wasthis pled. This court does not have jurisdiction to determine if the policy in place at the time discriminated against female prisoners. 2(

c) Was Ms. O’Shea contributorily negligent? [83] I make no finding of contributory negligence against Ms. O’Shea. Her pre-existing anxiety, physical and emotional problemswere recorded on the Crew Report. Given these and her life circumstances including being an intergenerational residential schoolsurvivor, her reactions to the circumstances of her detention were neither surprising nor negligent. 3(

a) Is Ms. O’Shea’s claim statute barred pursuant to s. 294(2) of the Vancouver Charter or did she have a reasonable excuse forfailing to provide the requisite notice that did not prejudice the City? (

b) If so, did acts or omissions of the individual defendants constitute gross negligence of wilful misconduct? [84] I find Ms. O’Shea’s claim is not barred as she had both a reasonable excuse for failing to provide the 2 months’ notice and herdelay did not prejudice the City’s defence of this claim. Reasonableness of Delay [85] I have reviewed the cases provided by counsel and rely on Thauli v Delta (Corp.),

(2009) BCCA 455 and Teller v. Sunshine Coast, (1990) (BC CA), 67 DLR(4th) 62 and Chavez v. Burnaby, 2004 BCCA 116. [86] In Thauli, the plaintiff suffered a relatively minor injury during a fitness class in a municipal community centre. The instructor

prepared an accident report but the plaintiff did not give the 2 month notice required under the same type of statutory

section contained inthe Vancouver Charter. [87] Ms. Thauli was a paralegal who had worked at a Vancouver law firm for 15 years with lawyers that did ICBC work and I findshe was much more sophisticated in legal matters than Ms. O’Shea.

She did not have a mental or physical disability. [88] The Court of Appeal followed Teller in holding the court must consider all matters put forward as an excuse for not providingthe notice and that ignorance of the law was one such factor that could be considered in this analysis. [89] As stated, “The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances”. (paragraph 11) [90] After considering the following, the court held Ms.

Thauli had established a reasonable excuse in law for not giving notice andcited the following as constituting reasonableness: - the relatively minor nature of the injury. - that while the Accident Report Form did not constitute notice under the statute, it could not be ignored. - that the plaintiff did not allege depression of anxiety but ignorance of the law, and failing to get legal advice because she was busyworking and looking after her family. [91] The Court further held the onus was not on the plaintiff to establish the delay was reasonable citing Teller at 389, and Davis v.Sechelt (District), 2002 BCSC 337 (paragraph 60). [92] In Chavez, the plaintiff’s depression, significant injury, and failure to obtain appropriate legal advice were all factors applied infinding reasonable excuse for late notice. [93] I have considered the totality of Ms.

O’Shea’s circumstances which include pre-existing physical and emotional trauma fromearly childhood, neglect, physical and sexual abuse, chronic health issues resulting in hospitalization, lack of education and intermittentdrug and alcohol addiction from a young age [94] As a child of a mother and other relatives that had attended residential schools, Ms. O’Shea had an additional burden. Herevidence of her family issues growing up mirrored that of many other children of residential school survivors reported in the ExecutiveSummary of the Truth and Reconciliation Committee (2015).

The spouse of a residential school attendee stated the legacy of theseschools: “…does not just affect the lives of the person who actually attended the school, but family members, such as spouses and children, arealso very deeply affected by this sad legacy in history.” (p. 136) [95] Alma Scott, a residential school survivor stated: “…I didn’t want to feel any emotions so I numbed out with drugs and with alcohol…That’s how I raised my children, that’s what mychildren saw and that is what I saw.” (p. 136) [96] When Aboriginal persons are convicted of a criminal offence, the court must consider 718.2(

e) of the Criminal Code. TheSupreme Court of Canada considered the factors to apply in considering this

section of the Code, in R. v. Gladue, (SCC), [1999] 1 S.C.R 688. [97] In Gladue, the Supreme Court of Canada reviewed a number of publications establishing the disproportionate number ofAboriginal prisoners incarcerated in Canada citing an

article that concluded that: “…Placed in a historical context, the prison has become for many young native people the contemporary equivalent of what IndianResidential school represented for their parents.” (paragraph 60) [98] It was further held that in applying s. 718.2(

e) of the Supreme Court of Canada, “...Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people…” [99] In R. v. Iplee, 2012 SCC 13, it was held one did not need to demonstrate a causal connection between committing a crime andthe legacy of residential schools or other factors in regards to Aboriginal offenders. [100] I find Ms. O’Shea’s difficult life circumstances in this matter, when viewed in the context of ‘the broad systemic andbackground factors affecting aboriginal people’ are analogous and relevant in the analysis of whether Ms.

O’Shea’s delay in providingnotice was reasonable in a tort action. [101] On the balance of probabilities, I accept Ms. O’Shea life circumstances , as outlined herein provide a reasonable justification forher not providing the notice set out s. 292(4) of the Vancouver Charter. [102] Dr. Mohammed reports Ms. O’Shea had a “long history of sexual abuse, physical abuse and past rape”. She notes the claimanthad exhibited symptoms of PTSD which the claimant described as nightmares, hypervigilance and disassociation.

She appeared anxiousand tearful and angry about his problems completing tasks which interfered with many activities of daily living including attendingappointments and filling out forms. [103] Dr. Mohammed notes at times that the claimant at times was “more easily overwhelmed”, anxious and “blocked” from

completing tasks and “freezing” when trying to get assistance. [ 104 ] Ms. O’Shea says that shortly after she was released from jail on March 27, 2008 she took street drugs and continued to do so for some time. She became unable to care for her children and became homeless. She lived on the street or in shelters for 1 ½ years to two years after this incident and wanted to stay high all the time. [ 105 ] I find that Ms.

O’Shea’s prior negative life experience, coupled with the circumstances herein, made it difficult for her to make the decision to proceed with this action or for her legal counsel to obtain instructions to do so. The City should not benefit from this delay in these circumstances. [ 106 ] The notice of claim dated March 27, 2010 was filed prior to the letter from the police board advising they had found Ms. O’Shea’s breach of trust claim unsubstantiated. The Trial Statement referenced in the defence written submission was not given under oath or affirmation, was not authored by Ms.

O’Shea, and was not entered as an exhibit at trial. Based on her testimony, at trial I find that to this day, she still does not have an accurate understanding of how s. 294(2) of the Vancouver Charter operates. Was the City prejudiced by the delay in receiving notice? [ 107 ] I find that the City did not suffer prejudice from Ms. O’Shea’s delay in providing notice. The relevant facts are not in dispute and include: - The HSIPP policy was not followed. - The decision to apply the Hobble was made by Sgt.

Clarke and the guards followed his instructions. - The information in the Crew Report was not recorded in the Log or Arrest Report. - Ms.

O’Shea covered the window in cell 120 with toilet paper because of her perception she was or could be watched using the toilet. - She covered the window and could or did cover the camera in cell 119 with nasal discharge after moving her handcuffed arms forward, that she was yelling and agitated from 2:30 pm, that while she was in the Hobble. - She was observed through the cell window while in the Hobble but no investigation was made to determine whether pain from the Hobble or how she was positioned in it, was the cause or a contributing cause to her demeanor. [ 108 ] Sgt Clarke has some recollection of the events and also his notes and duty report.

The Log and Arrest report and guard notes are also in evidence. My findings on breach of the standard of care do not relate to any acts or omissions of the guards. They did not have all relevant information that should have been recorded in the Log and acted pursuant to Sgt. Clarke’s direction. [ 109 ] At the time in question, the jail cell videos were taped over every 30 days. The video of Ms. O’Shea in cells would thus not have existed if Ms. O’Shea had filed her complaint between 31 and 60 days of March 27, 2008.

The overriding of videos was a policy decision made by the City and I disagree with defence counsel’s submission in paragraph 83 of the defendant’s written submission that the inability of the City to retain the video evidence was prejudicial to it. [ 110 ] I further find on the evidence, that the guards were not advised of anything about Ms. O’Shea nor were her circumstances in the jail such, that their recollection of relevant events would have been better whether they had been interviewed within weeks or a year to 18 months following March 27, 2008.

In any event, the undisputed facts in this case alone, give rise to the finding of negligence I have made. 4. Did Ms. O’Shea sustain injury and damages, and if so, what is the quantum? Injuries alleged by the claimant [ 111 ] Ms. O’Shea alleges she sustained personal injuries causing shock, pain and suffering, and loss of housing. She claims general damages for pain and suffering, loss of enjoyment of and amenities of life, physical and emotional distress, aggravated and punitive damages plus court order interest and costs. [ 112 ] Ms.

O’Shea must establish on the balance of probabilities that the injuries and damages that she claims in this action were causally related to her restraint in the Hobble on May 27, 2008. [ 113 ] Ms. O’Shea states that the combination of restraint of her hands behind her back and legs while restrained in the Hobble, caused her excruciating pain. She was in a semi-prone position on a cement floor during for approximately an hour while restrained. [ 114 ] I accept she did felt much pain while in the Hobble.

It is common sense that sitting in a semi-prone position with ones hands cuffed in the back and ones ankles crossed with a strap wrapped around them, which is then pulled tightly after it is passed under the cell door, and held in place with a wood block, would be painful, especially if one was positioned on a concrete floor. [ 115 ] I accept Ms. O’Shea felt her “feet would come off” and that she did have pain in her ankles, feet, legs and tail bone while restrained.

I find her pain was intensified by her emotional state which would not have been as negative but for the breach of the standard of care previously described. [ 116 ] Most of the defence witnesses had been placed in a Hobble during their training in its application, but none, including Sgt. Milliken, had been left in it for more than a few minutes. Sgt. Milliken said he had only been in a Hobble for a minute or so and described it as uncomfortable and awkward. It is foreseeable that being kept in the position Ms. O’Shea was for approximately an hour could be very painful as there is very little give in the strap.

[117] Guard MacDonald stated the Hobble was usually used to prevent self-harm. In his experience it generally was only used onprisoners for a couple of minutes to restrict movement. He was not sure whether the Hobble was uncomfortable to the person in it, butsaid person’s usually had a negative reaction to its placement. He agreed that movement would be difficult if one was placed in it formore than an hour. [118] Sgt. Clarke acknowledged the Hobble could become painful after it is tightened and it is not possible to see if it is properlyapplied as the door is closed to maintain the tightness.

Observations are done through the window of the cell. [119] Ms. O’Shea has not established on the balance of probabilities that the Hobble was improperly applied. Ms. O’Shea states shehad welts on her ankles from the Hobble. No photographs or documentation of these welts was produced, and even if they existed, thereis no evidence on the balance of probabilities, that these welts were an indicator of more than minor, transient injury. [120] Ms. O’Shea saw her family physician, Dr. Mohammed on a regular basis following March 27, 2008. Dr.

Mohammed’s reportfiled in this proceeding makes no reference to any physical injury. No clinical notes, reports, letters or consults from any healthprofessional were entered as evidence in respect to any physical injury alleged by Ms. O’Shea. [121] The Crew Report referenced Ms. O’Shea had arthritis.

On a balance of probabilities, I cannot find that the numbness Ms.O’Shea complains of in her feet and leg, and the occasional pain she has when she sits on her tail bone are causally related to her restraintin the Hobble or that her arthritis was made worse by the restraint. [122] In order to assess whether any acts or omissions of the defendants caused or contributed to Ms. O’Shea’s subsequent mentalhealth issues, or whether they would have occurred anyway, one must look again at Ms. O’Shea’s history. [123] Dr. Mohammed reports that Ms.

O’Shea had had periods up to three years and she was not abusing substances but had frequentperiods of relapse. She had relapsed into drug use just prior to this incident. She was arrested for being intoxicated in a public placefrom the use of crack cocaine.

She continued to use crack cocaine after her release from jail and became homeless for a period of time. [124] In the paragraph 15 of the claimant’s affidavit dated February 20, 2009, filed in support of Pivot’s complaint on use of forcerestraints, and her breach of trust complaint regarding her restraint, she deposes to the “mental effects of being placed in that painposition have been long lasting, and I have had to see multiple counsellors”. [125] On November 17, 2010, Dr. Mohammed noted Ms. O’Shea was taking medications for mood symptoms. On this date, Dr.Mohammed opined Ms.

O’Shea met the criteria for Generalized Anxiety Disorder and recommended she start counselling and switch hermedications. [126] On July 6, 2011, that the incident in question was reported to Dr. Mohammed by Ms. O’Shea. Dr. Mohammed recorded that “…her anxiety had escalated and in particular to a generalized fear of police and fear of being out alone”. [127] Dr. Mohammed’s reports that Ms. O’Shea had engaged in treatment with a number of health care professionals but continued tohave issues with anxiety, addiction and post-traumatic stress disorder symptoms. Dr.

Mohammed noted that these matters fluctuated butthe claimant continued to work on her recovery. These conditions were pre-existent. I infer that the records or reports of other healthprofessionals were not put into evidence because they dealt with health issues unrelated to this claim. [128] At trial Ms. O’Shea appeared healthy and stable. She said she had quit using crack cocaine in August 2014 and quit drinking onOctober 8, 2014 although she had had one relapse. She was no longer homeless. [129] Based on Ms. O’Shea’s testimony, and the report of Dr. Mohammed, I find that the Ms.

O’Shea’s anxiety, lack of self-worth andpre-existing PTSD type symptoms, were exacerbated until late 2011, by the issue at hand but the restraint itself but this did not cause theclaimants anxiety disorder, mental health issues, addiction or homelessness. I find Ms. O’Shea has been left with anxiety about contactswith the police from her time in the Hobble. [130] I have considered the case law provided in regards to Ms. O’Shea’s claim for general, aggravated and punitive damages. Thiscase is distinguishable from cases cited on behalf of Ms. O’Shea.

This is not a case where wrongful arrest of false imprisonment wasalleged. I did not make a finding of assault, wilful misconduct or excessive use of force. [131] In Woods v. City of Vancouver et al., 2009 BCPC 305 , 2009 BCPC 0305, two police officers were found jointly liablefor assault, battery and false imprisonment. [132] The Honourable Judge Ehrcke described the plaintiff’s injuries as follows: “The claimant spent most of the night in police custody and jail.

His injuries were a burn/abrasion to his forehead, an abrasion to thebridge of his nose, a cut to his lip redness next to his ear and red areas on his back. I am not satisfied that any chipped teeth resulted fromthis incident, as there are no photographs of this and there is no medical finding. Two years later, the claimant still has scars on hisforehead and the bridge of his nose, and gets sporadic pain at the back of his neck, which is decreasing. He remains anxious about goingdowntown.” [133] The claimant was awarded $13,000 for general damages. He was not awarded aggravated, punitive or exemplary damages.

Itwas held there was no malice involved even though the officers had acted wrongly. [134] Pike v. Canada [2008] B.C.J. No. 2690 was a case where there was a finding police officers used excessive force. The claimantwas hit with a police baton in a number of areas and the blows caused him to bleed form his head. His right arm was broken and herequired stitches to his right eye. He was awarded $15,000 in general damages. The court described the excessive force used as a“senseless battering worthy of rebuke” and noted it was high handed, malicious, misconduct, $5,000 in punitive damages was awarded.

[ 135 ] In Park v. B.C. (Ministry of Public Safety and Solicitor General) [2012] B.C.J. No. 994 , the claimant was awarded $15,000 in general damages for wrongful arrest and false imprisonment. He was taken to the ground by several officers and security guards in front of his mother who was a patient at the hospital and dying of cancer. He failed to file a certificate of readiness so the award was solely for wrongful arrest and imprisonment. No award for punitive or aggravated damages was made. [ 136 ] I award Ms. O’Shea $9,000 in general damages.

There was no wilful misconduct, malice or high handedness on the part of any of the defendants. I make no award for aggravated or punitive damages. [ 137 ] Ms. O’Shea is awarded court ordered interest on the general damage of award of $9,000 plus the filing and service fees claimed in the amount of $286.00. [ 138 ] I thank counsel for their able assistance and well written submissions. _________________________ The Honourable L.N. Bakan Provincial Court Judge