Sheila Tataquason - v. -, 2016 SKPC 121

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 121 Date: September 20, 2016 File: 449 [2015] Location: Saskatoon _____________________________________________________________________________ Between: Sheila Tataquason - and - Saskatoon Board of Police Commissioners, James Phillip Sean Bonynge, J. Jeffrey Broadbent, and Joel Lalonde Heath Smith For the Plaintiff Anna Singer For the Defendants _____________________________________________________________________________ JUDGMENT V.L.

MONAR ENWEANI , J _____________________________________________________________________________ Introduction [ 1 ] The Plaintiff, Sheila Tataquason (the “Plaintiff”) is a resident of the City of Saskatoon. The Defendants, Constables James

Phillip Sean Bonynge, J. Jeffrey Broadbent, and Joel Lalonde (the “Individual Defendants”) are members of the Saskatoon Police Service. The Defendant, Saskatoon Board of Police Commissioners (the “Board”) is the entity responsible for the delivery of policing services within the City of Saskatoon. [ 2 ] On August 16, 2013, at approximately 3:00 a.m., the Individual Defendants responded to a call from dispatch concerning a robbery with a knife at 20 th Street and Avenue H in Saskatoon. The Plaintiff lived at a home near the location of the robbery.

She was sitting outside in her backyard with a friend, when police service dog Diego entered the yard, and bit her. The Plaintiff brings this action against the Defendants seeking damages for personal injuries. Evidence [ 3 ] The Plaintiff testified that on August 16, 2013, at approximately 2:00 a.m., she and her friend, Joshua Desnomie, walked from the Lighthouse to her home at 310 Avenue H South. As they were sitting outside in her backyard, she saw a dog, and then was bitten on the side of her stomach. She was on a chair, and the dog dragged her down.

She was in pain and asked the police officer to get the dog off her. She said the police officer waited for assistance to come before he released the dog. [ 4 ] The Plaintiff was taken by ambulance to hospital and was seen by a doctor. The dog bite required three stitches. From the hospital, the Plaintiff was taken to the police station. She testified that she was in police custody for six and a half hours before being released. She had no involvement in the robbery. [ 5 ] With respect to her injuries, the Plaintiff had an ultrasound and was prescribed medication for pain.

In total, she attended at the doctor on four occasions. She testified that she experienced pain inside her stomach, and that she has nerve damage. She missed five days of work. Since the incident, she has suffered panic attacks, stress, and sleepless nights trying to get over what happened to her. She is now scared of dogs and is afraid to walk down the street alone. [ 6 ] Joshua Desnomie was called as a witness on behalf of the Plaintiff. Mr. Desnomie testified that he heard a noise in the bushes and then a dog jumped on the Plaintiff’s back. She was screaming and crying.

He tried to get the dog off her by opening its mouth. He said he got punched in the side of the head and got into a tussle with an individual who later identified himself as a police officer. Joshua asked the police officer to get the dog off the Plaintiff. He testified that the officer was on top of him, and that he did not take the dog off the Plaintiff until other police officers arrived. He said he was arrested and taken to jail.

He too was later released as he had no involvement in the robbery. [ 7 ] Constable Joel Lalonde testified that he has been a constable with the Saskatoon Police Service since January, 2003. He is currently a canine handler, having completed the certification process to become a canine officer in 2008. He testified that police dogs undergo a four month period of intense training before they are validated for service.

At the time of the incident, he was certified with police dog Diego. [ 8 ] Constable Lalonde testified that he was on duty on August 16, 2013 when he got a call from dispatch regarding a robbery with a knife at Avenue H and 20 th Street. There were limited police resources at the time and he was the only car to respond. He met the complainant at the Fas Gas parking lot and took a description of the suspects.

He was told that the suspects, a male wearing darker clothing and a female wearing lighter clothing, had fled into the lane. [ 9 ] Constable Lalonde stated that almost ten minutes had passed since the robbery, and he was approaching the critical time for having success with tracking. Since it would be several minutes before any other officers arrived, he pulled into the lane and harnessed Diego. Diego located an odor and pursued south down the lane, past three or four houses. Diego pulled through a fence, along a garage, and rounded a corner when Constable Lalonde felt a lunge on the line.

Constable Lalonde could hear yelling and knew someone had been bitten. The yard was dark and he took out his flashlight while continuing to hold the leash. Constable Lalonde testified that Mr. Desnomie was frantic and was pulling at Diego. Constable Lalonde got between Mr. Desnomie and Diego, ordered Diego to let go with the command “oust”, and yelled at Mr. Desnomie to lay on the ground.

Once he had compliance, he called in to say he had the suspects. [ 10 ] Constable Lalonde testified that police dogs are used to track on serious offences, and that there is a high probability of harm at the end of a track for a police officer. Diego was pursuing an odor, and the source of the odor was in the Plaintiff’s yard. Constable Lalonde confirmed that police dogs are trained to bite on locating the source of the odor, and that this often is the end result of a track, except in circumstances where an officer can see the source of the odor first, or gain compliance from the suspect.

Unfortunately, the Plaintiff was out of sight until Diego located the odor. [ 11 ] Constable Lalonde testified that at the time of the incident he thought the Plaintiff and Mr. Desnomie were his suspects and that one of them possibly had a knife. He estimated that Diego was engaged on the Plaintiff for approximately five to ten seconds. [ 12 ] On cross-examination, Constable Lalonde acknowledged that there was incentive for him to act quickly in order for there to be a greater chance of success in tracking the suspects.

When it was suggested to him that the complainant was intoxicated and provided only a vague description of the suspects, Constable Lalonde said that many of the complainants he deals with are intoxicated, and this would not have changed his actions. The complainant was distraught. He confirmed that police dogs used by the Saskatoon Police Service are trained in the bite and hold technique. In ideal circumstances, a canine officer would identify a suspect, communicate with them, and gain compliance before a police dog engages.

[ 13 ] Constable James Phillip Sean Bonynge testified. He was working on August 16, 2013 and responded to a call from dispatch regarding a robbery. The Canine Unit was the first to respond. He and his partner, Constable Broadbent, arrived soon afterwards. Constable Bonynge testified that when he arrived in the yard, the Plaintiff and Mr. Desnomie were near the patio, and Mr. Desnomie was on the ground. Mr. Desnomie was already in handcuffs. He did not recall where police dog Diego was. It was dark in the yard and he needed to use his flashlight. He placed Mr.

Desnomie under arrest and put him in the patrol car. [ 14 ] Constable J. Jeffrey Broadbent testified that he was on duty on August 16, 2013 when he responded to a call regarding a robbery with Constable Bonynge. Constable Broadbent spoke with the complainant at the Fas Gas station on 20 th Street, and took a witness statement from him. On cross-examination, he acknowledged that it appeared the complainant had been drinking, and may have had some intellectual limitations. However, he did not feel that the complainant was being dishonest, or misleading the police.

The robbery suspects were described as an aboriginal male wearing dark clothing and a female wearing lighter clothing in their 20s. He acknowledged that the Plaintiff appeared to be in her 40s. He said that he and his fellow officers thought they had the right individuals, as they were found close to the incident, the dog tracked them, and their clothes loosely matched the description given. Issues 1. Are the Individual Defendants liable to the Plaintiff for damages for personal injuries? 2. Is the Board liable to the Plaintiff for damages for personal injuries? Analysis 1.

Are the Individual Defendants liable to the Plaintiff for damages for personal injuries? [ 15 ] The Plaintiff claims damages from the Individual Defendants for negligence, and for the torts of assault, battery and trespass. The Plaintiff says that the Individual Defendants acted unreasonably and unlawfully, with the conduct of Constable Lalonde beginning to resemble gross negligence. In these circumstances, the Plaintiff says that the defence of good faith under s.10(3) of The Police Act, 1990 S.S. 1990-91, c.

P-15.01 ( “The Police Act ” ) does not apply to the Individual Defendants. [ 16 ] The Individual Defendants allege that they acted in good faith in the performance of their duties, that their actions were reasonable in the circumstances, and that no more force than necessary was applied. The Individual Defendants assert that they are protected from liability by both s. 10(3) of The Police Act and s. 25 of the Criminal Code . [ 17 ] The determination of liability in this matter turns on s. 10 of The Police Act.

The Police Act addresses the liability of police officers in the execution of their duties and reads as follows: 10(3) No action lies or shall be instituted against a member or a civilian member where the member or civilian member is acting pursuant to the authority of this Act, the regulations or an order made pursuant to this Act, or pursuant to any other Act,

an Act of the Parliament of Canada, the common law, a regulation or a bylaw, for any loss or damage suffered by any person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations, or any other Act,

an Act of the Parliament of Canada, the common law, a regulation or a bylaw, or in the carrying out or supposed carrying out of any order made or duty imposed pursuant to this Act or the regulations, or any other Act,

an Act of the Parliament of Canada, the common law, a regulation or a bylaw [ 18 ]

Section 10 of The Police Act is a good faith immunity clause. Recently, in Lemisko v Saskatchewan Watershed Authority , 2016 SKPC 107 , Jackson J. explained as follows: [48] Statute based good faith immunity defences are not uncommon, particularly relating to civic employees such as police officers, paramedics, firefighters, court officers and municipal workers to name a few. The intention in all cases is to provide legal protection to

such agencies and its servants when carrying out duties in an honest fashion within the scope of their employment duties. [19] The Individual Defendants are all members of the Saskatoon Police Service.

Section 36 of The Police Act provides that amember of a police service has, among other things, the power and responsibility to perform all duties that are assigned to constables inrelation to the preservation of peace, the prevention of crime and offences against the laws in force in the municipality, and theapprehension of criminals, offenders and others who may lawfully be taken into custody. [20] The concept of good faith and police liability was considered by the Saskatchewan Court of Appeal in Lang v Burch andCarlson, (SKCA) [Lang], a case involving a civil action for damages for wrongful imprisonment against two policeofficers.

The Court of Appeal considered the good faith immunity clause in s. 7 of the The

Summary Offences Procedure Act which readas follows: 7.

No action lies against a peace officer or other person for anything done in good faith with respect to the apprehension, custody orrelease of a person pursuant to s. 5. [21] At paragraph 29 of Lang, Cameron J.A. referred to the following passage from the decision of the Supreme Court of Canada in Chaput v Romain, (SCC), [1955] SCR 834, as a correct statement of the law in Canada regarding legislativeprotection of public officers acting in good faith in the execution of their duties: What is required in order to bring a defendant within the terms of a statute as this is a bona fide belief in the existence of a state of factswhich, had they existed, would have justified him in acting as he did. . . .

The contrast is with

an act of such nature that it is wholly wide of any statutory or public duty, i.e. wholly unauthorized and where thereexists no colour of supposing that it could have been an authorized one. In such a case, there can be no question of good faith or anhonest motive. [22] In Lang, the Court of Appeal agreed with the trial judge that the actions of the police officers were unlawful, and constitutedfalse imprisonment. Therefore, s. 25 of the Criminal Code was of no assistance, because the officers did not act on reasonable andprobable grounds. However, that did not end the matter.

In particular, the Court of Appeal noted that even if the actions of the officerswere unlawful, they could still be immune from civil liability if the officers acted in good faith. The Court of Appeal clarified thatwhether apprehension and detention is lawful, and whether it is made in good faith, are two separate issues. Further, the presence orabsence of good faith is essentially a subjective matter, concerning the state of mind of the actor. Cameron, J.A. held as follows: [31] . . . Whether the apprehension and detention were lawful is one question. Whether they were made in good faith is another.

If theanswer to the first is positive, there is no need to address the second. If not, if the actions complained of were unlawful, then thequestion is: were they nevertheless done in good faith. And the basis for determination of the two issues is different. The first - thelegality of the action taken - will depend on whether the facts apparent to the policeman, at the time, were such as to warrant his opinion,that the respondent was drunk. The second - the presence or absence of good faith - turns on whether the policeman had a bona fidebelief in facts, which if true, would make his conduct lawful.

The former is an objective issue involving the determination of the natureand effect of apparent facts - going to the existence of the power to act; the latter is essentially a subjective matter, concerning the state ofmind of the actor - directed to whether he should be relieved from liability for his actions. . . . [23] While the Court of Appeal in Lang found the trial judge had mixed these two questions, it upheld his conclusion that thepolice officers were not acting in good faith, and therefore were not shielded from civil liability. [24] The subjective test set out by the Court of Appeal in Lang was followed by Mr.

Justice Baynton in Nelson v Saskatchewan,2003 SKQB 265 [Nelson]. Here, Baynton J. considered the effect of a statutory good faith immunity clause in the context of a negligenceaction against Saskatchewan Water Corporation. He reviewed the definition of “good faith” and also rejected the argument that onecould not be negligent and yet still act in good faith. He stated as follows: [107] I prefer the logical approach taken in the last two cases cited.

Section 74 most certainly does not limit liability for adeliberate or grievous wrong. But if it does not limit liability for simple negligence, it is difficult to envisage its purpose or to conceive aset of circumstances to which it would apply. The distinction between negligence and bad faith might be somewhat analogous to thedistinction between negligence and gross negligence, a distinction that was maintained for several years in our tort law. In any event, Iconclude that s. 74 prevents a claim against Sask Water for negligence provided it acted in good faith. By “good faith” I mean that it had

a bona fide belief in facts, which if true, would make its conduct (or omission) lawful in the sense that it would be reasonable andthereby not negligent. [108] I realize that the distinction between the duty to act reasonably (i.e. not negligently) and the duty to act in good faith maybe one of semantics rather than substance. It may simply be the difference between a subjective and an objective consideration ofwhether one’s conduct or omission was reasonable. Black’s Law Dictionary, 5th ed. (St. Paul, Minn.: West Pub.

Co., 1979), defines inpart the term “good faith” as follows: Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among otherthings, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage . . . . [109] The meaning of good faith is somewhat expanded in the 7th edition as follows: A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonablecommercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionableadvantage. . . . [25] More recently, in Enterprises Sibeca Inc. v Frelighsburg, 2004 SCC 61 , [2004] 3 SCR 304 [Frelighsburg], theSupreme Court of Canada considered the concept of good faith and stated at paragraph 26 that “. . . the concept of bad faith canencompass not only acts committed deliberately with intent to harm, which corresponds to the classical concept of bad faith, but also actsthat are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performedin good faith.” [26] In addition to the cases cited above, the concept of good faith has also been considered by Saskatchewan courts in the contextof the liability of police officers for injuries arising out of the use of police dogs. [27] In Schuler v Bergen, 2010 SKQB 153, the plaintiff commenced an action against the defendant police officer for injuriessustained when he was bitten by a police dog while attempting to escape apprehension.

Acton, J. found that the officer was acting ingood faith in the execution of his duties at the relevant time. Accordingly, he concluded that s. 10 of The Police Act was a full andcomplete defence to the plaintiff’s claim. He held as follows: [16] It is acknowledged that the defendant was acting as a police officer in the exercise of his duties and authority. So long as thedefendant was acting in good faith, s. 10 of The Police Act, 1990, would, in fact, be a full and complete defence. [17] The case law in Saskatchewan, including Arnault v.

Prince Albert (City) Police Commissioners, (SK QB), [1996]4 W.W.R. 38 (Sask. Q.B.); Carr v. Forbes (1980), (SK CA), 7 Sask. R. 123 (Q.B.); Morrissette v. Salagubas (1984), (SK QB), 32 Sask. R. 25; Lang v. Burch (1983), (SK CA), 140 D.L.R. (3d) 325 (Sask. C.A.), allconclude that The Police Act, 1990, and its predecessor, The Police Act, R.S.S. 1978, c. P-15, as repealed by The Police Act, 1990,supra, is a complete defence if the officer was acting in good faith.

Lack of malice is a sign of good faith. [28] In Carr v Forbes, (SKQB), Johnson, C.J.Q.B. concluded that the defendant officers acted in good faith andwere not liable to the plaintiff for damages, for using a police dog to apprehend to him. Here, the plaintiff was moving into hisresidence. The police were investigating an incident involving three men who had abandoned a stolen car and were seen to disperse inthe same area. The police officers used a police dog to restrain and apprehend the plaintiff, and in the process, his jacket was torn and hesuffered some minor abrasions to his right forearm.

After investigation, it was determined that the plaintiff was not one of the suspectsand he was released. Johnson, C.J.Q.B. found that s. 19 of The Police Act, R.S.S. 1978 c. P-15 applied and he held as follows: [4] There is not one shred of evidence to indicate that the defendants did anything except in good faith and s. 19 of the Police Act, underwhich it is acknowledged the defendants were acting, is in my respectful opinion a complete answer to the plaintiff’s claim. Although

the judgment of Corporal Fores in sending police dog “King” to apprehend the plaintiff may be questioned (I do not do so) nevertheless nothing indicates bad faith on his part or on the part of the other two police officers who detained the plaintiff until it was determined he was not involved in the incident under investigation in that area. [5] Police officers have difficult duties to perform and must often make quick decisions but if the society in which we live is to maintain its peace and tranquility, there will be occasions when innocent citizens will be put to some trouble and inconvenience by the actions of police officers acting in good faith.

This is one of the small prices that we must pay for our freedom. Jury service, likewise, imposes inconvenience and loss of income on many who so serve but I feel sure that the majority of our citizens would not for that reason seek to have the jury system eliminated. There are, of course, occasions when police officers exceed their authority and arrogate to themselves powers and privileges which legally they do not have. In those situations such officers must be deal with according to law. [6] In the case at hand it was most unfortunate that Mr.

Carr was apprehended by police dog “King” and suffered inconvenience and embarrassment.

However, because of the statue the claim against the defendants must be dismissed, but under the circumstances without costs. [ 29 ] As the decisions in Schuler and Carr make clear, if the Individual Defendants were acting in good faith in the course of their duties, the protection from liability afforded to them by s. 10(3) of The Police Act is a full and complete defence to the Plaintiff’s claim, whether that claim is founded in negligence, assault, battery or trespass. [ 30 ] On August 16, 2013, the individual defendants were acting in response to a complaint of a robbery with a knife.

They were seeking to apprehend two suspects who had reportedly fled on foot down an alley less than ten minutes before. Police dog Diego located an odor in the alley, and pursued until he located the source. [ 31 ] The Plaintiff was sitting in her own backyard on August 16, 2013 when she was bitten by Diego. The evidence is clear that neither she nor Mr. Desnomie had any involvement in the robbery. Of course, this was not known by the Individual Defendants at the time. [ 32 ] Constable Lalonde presented as a credible witness.

I accept his testimony that at the time of the incident, he thought the Plaintiff and Mr. Desnomie were his suspects and that one of them possibly had a knife. He acted on the information provided to him by dispatch and by the complainant. I find that he followed his usual procedure in deploying Diego and acted reasonably in doing so. [ 33 ] I also accept the evidence of Constable Lalonde that Diego was engaged on the Plaintiff for a period of approximately five to ten seconds, and not for several minutes. This was the time it took for him to take out his flashlight, get between Diego and Mr.

Desnomie, order Diego to let go and Mr. Desnomie to get on the ground. While the entire incident was undoubtedly terrifying and painful for the Plaintiff, I find that she is simply mistaken with respect to her recollection that Constable Lalonde waited for assistance to arrive before calling off Diego. When Constable Bonynge arrived in the yard, Mr. Desnomie was already in handcuffs.

Further, had Diego been engaged on the Plaintiff for a priod of several minutes, the Plaintiff’s injuries would likely have been more severe. [ 34 ] It was clear from the evidence that Constable Bonynge had limited interaction with the Plaintiff, and Constable Broadbent had no involvement with the Plaintiff. [ 35 ] In all of the circumstances, I find that the Individual Defendants were members of the Saskatoon Police Service, acting in good faith in the course of their duties, on August 16, 2013 when the Plaintiff suffered her injuries.

They had a bona belief in the existence of facts, which if true, would make their conduct lawful. It cannot be said that their conduct was so markedly inconsistent with the relevant legislative context that a court could not reasonably conclude that they were performed in good faith. [ 36 ] In fact, there was nothing in the evidence before me to suggest that the Individual Defendants acted in bad faith or with malice. Rather, in exigent circumstances, they acted in good faith upon the information available to them.

While the result of the investigation was truly unfortunate, I find there was no bad faith or improper motive on the part of any of the Individual Defendants. [ 37 ] Accordingly, s. 10 of The Police Act affords the Individual Defendants a full and complete defence to the Plaintiff’s claim. [ 38 ] Finally, it should be noted that the Plaintiff also claimed against the Individual Defendants for false imprisonment. However, given s. 3(9) of The Small Claims Act, 1997, S.S. 1997, c. S-50.11 , this Court has no jurisdiction to deal with such a claim. 2.

Is the Board liable to the Plaintiff for damages for personal injuries? [ 39 ] The Plaintiff further claims that the Board, as the owner of police dog Diego, is liable to her for damages for negligence, for the torts of assault, battery and trespass, and on the basis of strict liability. In argument, the Plaintiff’s submissions were focused solely

on the issue of whether the Board is strictly liable for the Plaintiff’s injuries pursuant to the common law doctrine of scienter . [ 40 ] The responsibilities of the Board are set out in s. 31 of The Police Act and include, amongst other things, responsibility for the delivery of policing services withing the municipality, and for providing general direction, policy and priorities. [ 41 ]

Section 10 of The Police Act also addresses the liability of the Board.

In particular, s. 10(2) provides as follows: 10(2) No action lies or shall be instituted against a board or a member of that board, where the board or member is acting pursuant to the authority of this Act, the regulations or an order made pursuant to this Act, for any loss or damage suffered by any person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise of or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any order made pursuant to this Act or any duty imposed by this Act or the regulations. [ 42 ] The Board conceded that it was the owner of police dog Diego at the time of this incident on August 16, 2013.

The evidence at trial indicated that there is a training protocol in place for police dogs, that Diego received this training, and was validated for service. [ 43 ] There was no evidence at trial to establish any lack of good faith on the part of the Board. Section 10(2) of The Police Act provides the Board with a full and complete defence to the Plaintiff’s claim. Further, there is no basis for vicarious liability on the part of the Board. See, for example: Munir v Martin , 2015 SKQB 250 . [ 44 ] Finally, there is no basis for the application of the doctrine of scienter on the facts of this case.

Scienter is a form of strict liability. It relates to animals, particularly dangerous ones and the liability that attaches to the owner of the animal that caused the injury. [ 45 ] It is clear that a police dog is a tool, or a weapon, that is used by police on occasion. However, numerous cases have made it clear that the doctrine of scienter properly has no application in the context of police dogs.

See, for example: Myers v Graham, 2005 BCSC 5 ; McQuillan v Wong , 2008 BCSC 536 , and Sam v British Columbia (Ministry of Public Safety) , 2005 BCSC 331 . [ 46 ] I find that the doctrine of scienter has no application to the instant case. If it were otherwise, strict liability would attach to the Board every time injuries were caused by deployment of a police dog, including when apprehending dangerous individuals attempting to flee.

Furthermore, the application of the doctrine would clearly be at odds with the intention of the Legislature, as expressed in s. 10(2) of The Police Act, to provide immunity to the Board when carrying out its duties in good faith. Conclusion [ 47 ] The injuries suffered by the Plaintiff are truly unfortunate and regrettable. It is clear from the evidence that the Plaintiff had no involvement in the robbery. It is also clear that the incident caused her physical pain and emotional trauma. It is understandable that she feels she has been wronged.

The Court has considerable sympathy for the Plaintiff. [ 48 ] The Defendants acted in good faith in the course of their duties. Accordingly, in the circumstances of this case, s. 10 of The Police Act applies and constitutes a bar to the Plaintiff’s claim for damages. [ 49 ] The Plaintiff’s claim is dismissed. There will be no order as to costs. _________________________ V.L. Monar Enweani, J