2015 QCCQ 10492, 2015 QCCQ 10492

Kez c. Montréal (Ville de) 2015 QCCQ 10492 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-128881-119 DATE: July 28, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ANTHONY KEZ […] Westmount, Qc […] Plaintiff v.

VILLE DE MONTRÉAL 1441, rue Saint-Urbain Montréal, Qc H2X 2M6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ The demand and the contestation [ 1 ] The Plaintiff, Anthony Kez, sues the City of Montreal (“the City”) for damages in relation to an event that occurred on June 27, 2009, in front of his residence on […] Boulevard, in Wesmount, Québec, during which he was arrested by the Service de police de la Ville de Montréal (“SPVM”).

Mr Kez alleges that he was the victim of an unjustified arrest and that the police caused him bodily injury in the form of bruises and trauma, as well as pain, suffering and emotional distress. [ 2 ] He also alleges that on November 4, 2010, in the Montreal Municipal Court, the City was declared “Guilty of police brutality”. This is inaccurate: on that date, Mr Kez was found not guilty in the trial that proceeded before the Municipal Court. [ 3 ] He was accused in that case of: -one count of obstruction of a police officer in execution of his duty, under

Section 129

a) and

e) of the Criminal Code ; -and- one count of assaulting a police officer under

Section 271

a) and 2b) of the Criminal Code . [ 4 ] The Municipal Court heard testimony from the same police constables as testified in the present case. As well, Mr Kez and his friend Sean Creaghan, testified in the defence in the criminal prosecution. [ 5 ] In our case, the Court also heard the testimony of Mr Kez and Mr Creaghan. As well, the Court read, in lieu of testimony, the written statements of Sean Creaghan, Charlotte M. Creaghan and Kathleen Kez.

The City did not require the viva voce testimony of those witnesses. [ 6 ] In its contestation, the City denies any fault, alleging that the police constables who responded to a call that evening were justified in arresting Mr Kez because of his physical aggression on constable Alexandre Guillette, and that the constables, who put an end to the altercation, used only the force necessary in arresting Mr Kez. [ 7 ] The City also defends on the basis that the matter is prescribed under the short prescription of six months.

[ 8 ] Mr Kez was placed under arrest by the police on the night of the incident and then charged with the two offences mentioned above in paragraph [3]. The City alleges that the members of its police force were acting at all times as peace officers in the execution of their duties, in good faith and without any intention to harm the Plaintiff with a view to serving the ends of justice.

Two causes of action and the defence of prescription [ 9 ] The Plaintiff’s case really breaks up into two causes of action: the first relating to the events of his arrest which, according to his allegations, caused bodily injury and the second being the prosecution itself, which was a result of the police initiative, but also the result of the prosecutorial discretion exercised by the City’s prosecution service, who had the ultimate decision as to whether the charges would be brought. [ 10 ] This is crucial with respect to the City’s defence of prescription.

Article 586 of the Cities and Towns Act [1] provides that any action against the City of Montreal and its officers or employees, for damages resulting from faults or illegalities, is prescribed by six months from the date on which the right of action arises. [ 11 ] The exact text reads as follows: [ 586 ] .

Toute action, poursuite ou réclamation contre la municipalité ou l'un de ses fonctionnaires ou employés, pour dommages-intérêts résultant de fautes ou d'illégalités, est prescrite par six mois à partir du jour où le droit d'action a pris naissance, nonobstant toute disposition de la loi à ce contraire. [ 586 ] .

Every action, suit or claim against the municipality or any of its officers or employees, for damages occasioned by faults, or illegalities, shall be prescribed by six months from the day on which the cause of action accrued, any provision of law to the contrary notwithstanding. [ 12 ] Mr Kez’s action was brought on June 7, 2011 in respect of the event, which occurred on June 27, 2009, and the acquittal on the charges brought against him was entered in his file on November 4, 2010. [ 13 ] With respect to the part of the claim that relates to bodily injuries suffered on the night of the incident, and the moral damages that are part of these injuries, the case is not prescribed because of a provision of the Civil Code of Quebec , that makes it impossible (« ne peut faire échec »), in cases of bodily injury, to have a prescription less than three years. [ 14 ]

Article 2930 of the Civil Code of Quebec reads as follows:

Malgré toute disposition contraire, lorsque l'action est fondée sur l'obligation de réparer le préjudice corporel causé à autrui, l'exigence de donner un avis préalablement à l'exercice d'une action, ou d'intenter celle-ci dans un délai inférieur à trois ans, 10 ans ou 30 ans, selon le cas, ne peut faire échec au délai de prescription prévu par le présent livre. 2930.

Notwithstanding any provision to the contrary, where an action is based on the obligation to make reparation for bodily injury caused to another, the requirement that notice be given prior to bringing the action or that the action be instituted within a period of less than 3 years, 10 years or 30 years, as the case may be, cannot affect a prescriptive period provided for in this Book. [ 15 ] For the Plaintiff’s claim alleging a wrongful prosecution, the City’s six month prescription does however apply.

This is a claim for the legal fees associated with the defence of the case as well as the loss of time and moral damages caused by the prosecution. [ 16 ] The Supreme Court of Canada established four criteria for bringing a case for wrongful prosecution as follows [2] : 1) Proceedings are taken by the Defendant; 2) The case is resolved in favour of the Plaintiff; 3) There were no reasonable and probable grounds to bring the accusations; 4) The person who initiated the prosecution had a wrongful intention or malice seeking the accomplishment of an objective other than that of the application of the law. [ 17 ] Because one of the key criteria for such a case is the acquittal, Mr Kez could not have brought an action sooner than November 4, 2010, the date on which he was acquitted. [ 18 ] He brought his action before the Court, presently seized, on June 7, 2011. [ 19 ] The six-month prescription fell on May 4, 2011, a Saturday, so that the last date would have been prorogued to the following Monday, May 7, 2011. [ 20 ] He sued one month late, on June 7, 2011. [ 21 ] Therefore, taking the beginning of the prescription on the most favourable date for the Plaintiff, the day the criterion of a favourable outcome in the criminal trial was met, he was nevertheless late, if only by one month, in bringing his proceedings. [ 22 ] Prescription is a very technical matter and, barring an impossibility to act, the case that is brought late is prescribed even if it is

only one day late. The action for wrongful arrest [ 23 ] The extra contractual liability of police as individuals, like that of any other person is governed by the general provisions found in the Civil Code : 1457. Toute personne a le devoir de respecter les règles de conduite qui, suivant les circonstances, les usages ou la loi, s'imposent à elle, de manière à ne pas causer de préjudice à autrui. Elle est, lorsqu'elle est douée de raison et qu'elle manque à ce devoir, responsable du préjudice qu'elle cause par cette faute à autrui et tenue de réparer ce préjudice, qu'il soit corporel, moral ou matériel.

Elle est aussi tenue, en certains cas, de réparer le préjudice causé à autrui par le fait ou la faute d'une autre personne ou par le fait des biens qu'elle a sous sa garde. 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act or fault of another person or by the act of things in his custody. [ 24 ] Extra contractual liability of the City, in this case, would be a result of the legal principle that the principal is liable for the fault of his agents or servants in the performance of their duties. 1463. Le commettant est tenu de réparer le préjudice causé par la faute de ses préposés dans l'exécution de leurs fonctions; il conserve, néanmoins, ses recours contre eux. 1464.

Le préposé de l'État ou d'une personne morale de droit public ne cesse pas d'agir dans l'exécution de ses fonctions du seul fait qu'il commet un acte illégal, hors de sa compétence ou non autorisé, ou du fait qu'il agit comme agent de la paix. 1463. The principal is bound to make reparation for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his remedies against them. 1464.

An agent or servant of the State or of a legal person established in the public interest does not cease to act in the performance of his duties by the mere fact that he performs

an act that is illegal, beyond his authority or unauthorized, or by the fact that he is acting as a peace officer. [ 25 ] The importance of

Article 1464 for a debate such as ours is that the City cannot escape its liability simply because an employee, in this case police constables, are acting in a way that is improper. The employer answers for the fault, even where the employee has acted in a way that the employer would have never condoned. In this case, the City actually seeks to justify the conduct of its employees.

Paragraphs 18 and 21 of the written contestation make reference to the elements that would justify their conduct: the legality of the arrest and the use of only the necessary force. [ 26 ] This is a well-articulated defence, because, in civil law, the action of applying force against a person without his consent would normally be a source of extra-contractual liability, where it not for the justification available to police acting in the exercise of their duty. [ 27 ] These two elements of defence raised by the City are the corollary of detailed provisions of the Criminal Code at section 25 (1) and following that give justification for the use of force by peace officers. [ 28 ] The central idea, the requirement that the peace officer be acting in the application or the administration of the law, and the twin criteria of reasonable grounds and the use of no more force than is necessary, are clearly articulated: Protection of persons acting under authority 25.

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

a) as a private person, (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or

(

d) by virtue of his office, 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. [ 29 ] Thus, in civil law, police acting in their capacity as such have a sort of immunity for conduct that would otherwise be actionable, provided that they meet these two criteria. [ 30 ] The authors of La responsabilité civile [3] summarise the principles as follows: 1-202 – Ordre de la loi – Celui qui cause un dommage à autrui, par un acte qui, en d’autres circonstances, aurait toutes les apparences d’une faute, ne saurait être responsable s’il agit sur l’ordre de la loi.

Ainsi en est-il du policier qui, sans abuser de ses pouvoirs, cause un dommage au criminel qu’arrête. Celui donc qui exécute un commandement de la loi doit être excusé, puisque l’acte qu’il pose n’est pas illicite, mais au contraire parfaitement légal. Toutefois, il demeure responsable s’il commet une faute dans l’accomplissement de l’ordre et donc s’il ne se comporte pas, alors en personne raisonnablement prudente et diligente.

Ainsi en est-il du policier qui, procédant à une arrestation, par ailleurs légitime, utilise une force déraisonnable eu égard aux circonstances, ou a une conduite maladroite ou imprudente.

La défense d’autorité législative qui permet d’invoquer une immunité totale ou partielle conférée par le législateur est également admise. [notes omitted] [ 31 ] This extract shows how the justification provided by the Criminal Code is translated into the civil law. [ 32 ] Once the conduct that would normally be a source of civil liability is proved, it would be up to the police, or, in this case their employer, to prove that the justification criteria apply.

They are not presumed to apply simply because the police have arrested someone. [ 33 ] The physical interference with Mr Kez is not disputed, nor is the fact that the City's employees were agents of the police force. The case then becomes to determine whether, on the balance of probabilities, the evidence establishes reasonable grounds for the arrest and, if so, whether it was carried out with no more force than was necessary.

This is a matter where the defence has the burden of proof. [ 34 ] In the Court's analysis of the evidence in the present case, the arrest is actionable because neither of the two criteria of justification are satisfied, and, even if the burden of proof were on the Plaintiff, the result would be the same, because the evidence as a whole is sufficient to prove that the police acted without probable cause and used more force than was necessary. [ 35 ] The Court sets out in the text that follows its reasons for reaching that conclusion.

The events of June 27, 2009 [ 36 ] There are two separate narratives, that of the police, constables Alexandre Guillette (5820) and Jean-Michel Lavallée (6138) who were called onto the scene of an alleged hit and run ( délit de fuite ) and constable Stéphane Laperrière and that of Mr Kez and his group who were leaving Mr Kez’s home. [ 37 ] The call came in at 22:08:50. An alleged hit and run. Constables Guillette and Lavallée arrived in the vicinity of the corner of Dorchester and Green, in Westmount.

They were told by a complainant, the owner of a Mitsubishi parked in front of […], that a silver Acura had been parked with its front bumper touching the complainant's rear bumper and that the driver of the car had driven away from the scene. The complainant had photos of the cars as parked and of the licence number of the Acura.

What the two police constables saw were minor scratches on the rear bumper of the Mitsubishi, caused, according to the complainant, by this Acura. [ 38 ] The license plate number led them to Mr Kez’s address, […], where his brother in law, Dominic Bel, the owner of the Acura, also resided. [ 39 ] The SPVM call history report (D-1) shows that the system gave the police the details of the Acura and its owner at 22:58:33. [ 40 ] About 5 minutes later, at 23:03:44, Anthony Kez’ name is entered into the system. [ 41 ] Mr Kez, his sister Kathleen Kez and their friends Sean Creaghan and his sister Charlotte M.

Creaghan were walking down the steps from the residence at the end of a dinner at which approximately 15 people had attended, a family BBQ with several young children among the group. [ 42 ] The four were on their way for coffee or a drink in the neighbourhood. [ 43 ] Constables Guillette and Lavallée were approaching the residence hoping to speak to Mr Bel or to learn of his whereabouts. [ 44 ] The contradictory versions begin where the six persons converge just outside the home, on […]. [ 45 ] According to Constable Guillette, Mr Kez was arrogant and smelt of alcohol.

When asked if he knew the owner of the car, Mr Kez refused to give the information at first, but finally mentioned that it was his brother in law, acknowledged that he lived at the address but refused to give his brother in law's phone number. [ 46 ] Mr Kez was then led by Constable Guillette to see the scene of the "hit and run".

As mentioned before, the damage, which may or may not have resulted from the two cars’ bumpers touching, was limited to some scratches. [ 47 ] Mr Lavallée testified that Mr Kez objected to the idea that there was a hit and run, that the damages were minimal, that this was nothing. [ 48 ] From the police side, there are three versions of the arrest, each different on important details.

Constable Guillette's version [ 49 ] According to this version, Mr Kez was agitated and came into close proximity to Constable Lavallée, the taller of the two police. Mr Lavallée pushed him back gently with this hand, and asked the group to leave the scene, that he would prepare his report. Mr Kez came back, and at this point Guillette came closer, to assist Lavallée. [ 50 ] Guillette pushed him a first time, and then Kez came back with two hands at the level of his chest. Guillette and Kez pushed each other mutually: Kez fell to the ground.

He got back up but Guillette and Lavallée took his arms and placed him in handcuffs on the hood of the car, and then searched him before bringing him to the rear of the car to put him in the passenger seat. Mr Kez was resisting being put in the car and was calling out to his friends to take pictures. A third policeman, who had arrived at the scene, Stéphane Laperrière, intervened to put a pressure point on Mr Kez's larynx to get him to bend, which he did. Then he was placed in the car. [ 51 ] Initially, when asked to identify himself, he refused. His friends identified him and he was released on a "citation".

When in the car he said words to the effect of: "it's normal I want to protect him, he's my brother in law". Constable Lavallée's version [ 52 ] The testimony of Constable Lavallée corresponds to that of Constable Guillette in the sequence of events.

He mentions the "pushing", that both he and his colleague did initially, as simply holding out the arm to create a distance, without any "élan". [ 53 ] He attributes Mr Kez falling, after the mutual push which caused both Kez and Guillette to be pushed backward, to his intoxication as opposed to the fact of being pushed. [ 54 ] He remembers the camera being used as being a cell phone. [ 55 ] Lavallée talks about Laperrière putting a pressure point on the shoulder or on the neck; he does not remember where the pressure was exerted.

Version of Stéphane Laperrière [ 56 ] This version, from the most experienced of the members of the force, introduces several contradictions. [ 57 ] Mr Laperrière testifies that when he arrived in his vehicle, driving East on Dorchester just past Green he saw Kez approach Lavallée, after which Kez backed up when Lavallée extended his arms to create a distance.

Kez then came back, toward Lavallée and Guillette who both pushed him together, at the same time, to indicate to him that he was in their space. [ 58 ] When he came back, the third time, toward Lavallée and Guillette, he was pushed (he does not say by whom) and he fell to the ground where he was handcuffed. [ 59 ] Once handcuffed, he was brought to the hood of the police vehicle and, finally, the witness says a pressure point was applied by him to get him into the car because Mr Kez was rigid and resistant. [ 60 ] There are no outstretched hands on the part of Kez, and no mutual pushing between Kez and Guillette. [ 61 ] Mr Lapperière mentioned, when testifying on the handcuffing, that the events happened six years ago, and that he supposed the handcuffing took place on the ground, because it is standard procedure.

He admitted having read over all the reports before testifying. Discrepancies in versions given in the Municipal Court [ 62 ] The Court listened to the recordings of the Municipal Court trial that were produced as exhibit P-3. [ 63 ] The testimony of constable Guillette in the Municipal Court differs from his testimony in the present case.

Whereas in our case, his testimony matches that of constable Lavallée fairly closely, in the Municipal Court, after the mutual pushing between Guillette and Kez causes Kez to fall to the ground, he is subdued then and there: there is no question of him getting up and again coming toward Guillette and Lavallée. [ 64 ] In Municipal court, constable Laperrière testifies that he saw Kez come once toward Lavallée quickly: Lavallée pushed him back. Kez comes back toward Lavallée and Guillette.

The two pushed him to the ground. [ 65 ] In cross examination he changes this subtly, when the two push him to the ground Guillette make contact first, and Lavallée assists him.

They are gripping him when he falls to the ground as opposed to pushing him away from themselves. [ 66 ] But constable Laperrière's testimony in the two courts is consistent in that there is no mutual pushing between Kez and Guillette and the handcuffing takes place on the ground. [ 67 ] His testimony is not consistent as to the number of times Kez was pushed: in our case the testimony talks about three advances, in Municipal Court he only advances twice. [ 68 ] There is, therefore quite a bit of discrepancy in the various versions of the police as to the number and sequence of the advances, the pushing being individual, joint or mutual, and the handcuffing being on the ground or during or on the car.

The Plaintiff's version [ 69 ] Mr Kez version of the events is quite different. When approached by constables Guillette and Lavallée, he quickly identified himself and the others, and said that his brother in law owns a silver Acura.

[ 70 ] He asked them to speak French for the benefit of his guests who are Anglophones. When taken to see the scratches on the Mitsubishi he expressed disbelief that they were making something out of nothing. [ 71 ] His guests had been concerned, as was he was, when first told there was a hit and run, that his brother in law and the passenger in the car, Charlotte's mother, had come to harm. Their interest in dealing with the police was to get information, to see if there was any cause for concern. He was incredulous that the "hit and run" was simply a scratched bumper.

His testimony reveals that he really did object to their treatment of the matter. He is not sure whether they were asked to leave, but they would have, were it not for the events that followed. [ 72 ] He believes that it was his insistence that the police speak to them in English that triggered their agitated reaction. He was on the sidewalk, and the two policemen approached him. [ 73 ] The next thing he knew, Guillette charged him, and Lavallée put his foot behind him causing him to smash to the ground. He got up, put his shoulder toward Mr Guillette, telling him that he would not hit a policeman.

He felt that the police were provoking him to create an altercation in order to justify their actions and he wanted them to know that he would not attack them. [ 74 ] Then he was brought to the car, handcuffed on the hood. Before being immobilised he managed to throw his camera to Sean Creaghan who took several pictures that were included in the evidence. [ 75 ] He did not resist being put in the car. The third policeman was not involved in him being put in. [ 76 ] He was in pain and kept in the car for a fairly long time. [ 77 ] The police told him he had to sign a ticket: "entrave à la paix".

They were saying that if he did not sign he would not be released. His entourage insisted that he sign in order not to be further detained. Mr Kez believed that the paper he signed related to disturbing the peace. In fact, he was signing a proof of receipt of an order to appear on the two charges he was accused of. [ 78 ] He signed the document, was released and the group went for coffee. Corroboration of Mr Kez testimony [ 79 ] Sean Creaghan is a long-time friend of Mr Kez.

He testified that he and his sister left the house first after the BBQ and were followed by Mr Kez and his sister. [ 80 ] When asked about the car, the information was readily given, but the group wanted to know why. The police's words were being translated. They heard "hit and run" and knew that Dominique Bel had left earlier to drive Mr Creaghan's mother home. They were very concerned about what happened. Mr Kez was taken to see the vehicle allegedly damaged and asked whether they could tell the others what had happened in French. [ 81 ] In a "flash" Mr Kez was on the ground.

He threw his camera to Mr Creaghan who tried to capture the events. [ 82 ] One of the constables, probably constable Guillette, was very aggressive and told him to stop taking pictures. [ 83 ] They threw him on the hood of the car, chest down, handcuffed him behind the back. Another policeman arrived. He was a much more seasoned policeman and had a calming effect on the situation. He dealt with the three observers of the events. Kez was put into the car, being guided there.

There was no involvement by the third officer. [ 84 ] He is aware that Mr Kez signed a document, not knowing what it was. [ 85 ] Kathleen Kez and Charlotte M. Creaghan, as well as Mr Creaghan signed written statements given under oath. [ 86 ] All of these sources corroborate the notion that Mr Kez did not push or touch the police before being pushed to the ground, that it did not take three police to put Mr Kez in the car, that he did not resist and that the police were very aggressive while he did not act aggressively toward them. [ 87 ] The photos (D-2) taken by Sean Creaghan are illustrative.

Photo 7 shows Mr Kez being handcuffed on the hood of the car by the two constables. The right side of his face is pressed against the hood of the car. The third policeman, Mr Laperrière, has his back to them. Photo 8 shows that only one of the constables, who appears to be the taller of the two, constable Guillette, is escorting Mr Kez to the left rear door of the cruiser. In photo 9 this same policeman is seen with Mr Kez at the end of this outstretched arm in next to the open door of the cruiser. Both are looking toward the camera and appear to be speaking.

Constable Guillette does not remember what he was saying. Mr Creaghan believes that Mr Kez is telling him to keep taking pictures and that the policeman pointing to him is telling him to stop. This is the last picture he took. [ 88 ] The photos show that Mr Laperrière's testimony about the handcuffing on the ground is not accurate. It also strongly suggests as inaccurate the testimony that it took three policemen plus a pressure point to put him into the car. When constable Guillette is pointing his finger at the camera, the other constables are not in proximity to Mr Kez, and his back is to the open door.

He shows no sign of resisting though his is speaking toward the camera. [ 89 ] Mr Kez is convinced that without the photos he would have been convicted, but, when listening to the Municipal Court Judge's reasons, it was clear to the undersigned that it was the strength of his testimony and the weakness of the police testimony that generated the reasonable doubt necessary for an acquittal. The injuries [ 90 ] After the events, when Mr Kez went to his girlfriend's residence that night, she noticed that he was bruised.

[ 91 ] He sought medical attention. A report of Dr David Levy speaks of tenderness in his right wrist, swelling to the left ankle. Mr Kez testifies as to several weeks of being unable to engage in his usual sports occupations, tennis for example, because of the pain in the wrist and the difficulty in walking. He couldn't bicycle, for a good four weeks. His back was hurting and his knee was twisted during the period on the roof of the car. He suffered great discomfort during air travel to Europe shortly after the events. [ 92 ] The bruises persisted for several weeks.

He was fully recovered within eight weeks. [ 93 ] Mr Kez, aged around 50 at the time, was in excellent physical condition, practicing several sports. He is a respected business person, a person having had the benefit of higher education and he works as the Vice-President of the Hungarian Canadian Chamber of Commerce. [ 94 ] Apart from the physical injuries, which were painful and prevented him from carrying out his ordinary activities for several weeks, he is still wary of police and the Court sensed a strong indignation on his part at having been treated with disrespect, physically harmed and detained.

He has lost all sense of confidence in the Montreal Police. His experience at the deontology meeting was also very disappointing, though this is beyond the scope of the present case. Analysis [ 95 ] When testimony is a means of proof, its probative value is left to the judge's discretion. Mr Kez’ version is credible and it is corroborated by credible witnesses. Though they are all friends, there is no suggestion that they would change their testimony to help a friend. These are educated, articulate people. Charlotte M.

Creaghan is an Attorney at Law in the State of California. [ 96 ] Despite the close family and personal connections among the Mr Kez and his witnesses, the Court accepts their testimony as having strong probative value. [ 97 ] The three police witnesses claimed to remember the events, as opposed to simply referring to their reports as past memory recorded. [ 98 ] Normally police testimony, like that of other witnesses, is presumed to be credible. In this case the Court had the benefit of cross-referencing various police versions of the same events.

Each was different in elements that were essential: the sequence of events of the altercation and the handcuffing. It is rather serendipitous, to say the least, that Mr Laperrière’s arrival coincided exactly with the altercation. But this did not strengthen the defence; it weakened it, because it introduced some important contradictions in the testimony. [ 99 ] There is a divergence as well on the issue of alcohol: at certain places in the reports and the testimony, the police speak of Mr Kez being intoxicated, in others, they say that there was a smell of alcohol on his breath, but no sign of drunkenness.

In part of his testimony Mr Lavallée plays up this point, but Mr Guillette is very ambivalent. There is the smell of alcohol, but he is not in a state of advanced drunkenness. [ 100 ] Anyone who has had even one drink can have the smell of alcohol on his breath, without being affected by drink, but it takes on a certain colour when the police use it in a report to justify the use of force. The police testimony about Mr Kez being agitated or aggressive or uncooperative is very weak and imprecise. Some parts of the evidence mention his face being red; in some parts he is making gestures, in others he is not.

Sometimes he is being described as arrogant.

Essentially, he was not agreeing with them and this was interpreted as arrogance and aggressiveness. [ 101 ] The Court accepts Mr Kez' testimony that he was not under the influence of alcohol; having hosted a party where several children were in attendance, he may have had a drink during the dinner, but was not affected by it and was certainly not intoxicated. [ 102 ] The outcome of the case in Municipal Court was that Mr Kez’ testimony was accepted by the judge who also found contradictions in the testimony of the three policemen, some of the same contradictions that were apparent before this Court. [ 103 ] Mr Kez is convinced that the police deliberately lied and fabricated the story to protect each other because of possible claims he could make.

This is certainly a view that is sometimes held about police and their methodology. [ 104 ] There is a very detailed incident report written by constable Guillette and co-signed by constable Lavallée (D-4). It is very defensive, including the allegation that Mr Kez was under the effects of alcohol, and showing "agressivité". It emphasises the allegation that Mr Kez and the others were asked to leave the scene before the altercation took place. Mr Kez’ witnesses make no mention of having been asked to leave the scene.

If they had been clearly asked to leave, the Court has no doubt they would have. [ 105 ] One gets the impression that a number of elements that would assist the police are carefully documented, but, when testifying, the police lack a true memory of the events in some important particulars such that the credibility of the whole police exercise is in doubt. The complainant of the "hit and run" who was present when the operation began was not called by the City. [ 106 ] One has to wonder why the police accused Mr Kez of obstruction.

They had no further business on the scene once they ascertained the identity of the owner of the Acura and his address and realised that they could not locate him and that the persons they were questioning had no knowledge of the events. The fact that one of the persons they were interviewing expressed an opinion that was counter to their own self perception was not a reason to feel that they were being obstructed.

They could have just gone back to their car to write their report. [ 107 ] The charge of assault was also uncalled for: they provoked the altercation, and they subjected Mr Kez to a painful and humiliating detention in the presence of his close entourage on a major street in a fashionable area of Westmount. Mr Kez is fit and strong and would not have fallen to the ground by being pushed by a smaller man. It is much more likely that he was pushed by one constable and tripped by the other from behind, as he fell on this back. [ 108 ] Their explanation was that he was invading their space and was agitated.

Their testimony does not establish any reason to have

feared that he was about to assault them. The oral and written testimony of the other witnesses establishes that there was no gesture made toward them of an aggressive or threatening nature. [ 109 ] The evidence in defence about him coming toward them repeatedly is not credible given the number of contradictions in the various versions of the police narrative, even if it were not countered with the Plaintiff's witnesses.

It is also not plausible that Mr Kez would have repeatedly come back toward them after being told to leave and gently pushed out of the immediate space of the police constables. [ 110 ] Even if it were true that he was making them feel uncomfortable by being too close to them physically, they could have just stepped aside and gone about their business, wishing him and the others a pleasant evening. Nothing about their duties compelled them to continue as they did in a confrontational way. [ 111 ] Mr Laperrière cannot be blamed for applying a pressure point, because there is no credible evidence that he did so.

It is an event that would be so unpleasant that Mr Kez would have included it in his own complaint and Mr Creaghan would have noticed it as well.

The fact that Mr Lavallée can't remember whether it was a pressure point to the throat or to the shoulder suggests that he has memorised that there was a pressure point applied based either on reading the reports or because he was told this, but that he did not, in fact, see the event. [ 112 ] Mr Laperrière is mistaken when he said that the handcuffing took place on the ground: his back was turned when the handcuffing took place on the hood of the car. [ 113 ] He is probably remembering what would have been logical, to handcuff the person while he was down, but he is not remembering what he actually saw.

Perhaps he remembers other incidents when he applied pressure points to suspects, but it is very unlikely that he did it in this case. [ 114 ] He admitted that his testimony about the handcuffing on the ground is not really based on memory, and his testimony appears to be a reconstruction based on what he believes must have occurred, as opposed to actual memory. [ 115 ] This arrest was unlawful because of the lack of any reasonable and probable grounds to believe that Mr Kez had committed the offenses for which he was accused (and eventually acquitted) and it was wrongfully carried out because of the force used in the arrest, which involved Mr Kez being needlessly knocked to the ground, perhaps in an effort to provoke him, but, in any event, unnecessarily. [ 116 ] Once placing him under arrest the police followed usual procedures to handcuff him and put him in the car until they could issue a summons and release him, but that does not make the arrest lawful per se. [ 117 ] The bodily injuries were real and painful and temporarily debilitating, though they were not serious and permanent. [ 118 ] The Court arbitrates the damages owed for injuries in the form of the immediate physical trauma of the event, the temporary disability and the pain, suffering and moral damages resulting from it at a global amount of $ 5,000. [ 119 ] A respectable citizen had the singular misfortune of walking out of his house at exactly the same time as the police were walking toward it, of taking an interest in their work as it had the potential to provide the information about potential harm to the occupants of the car, close friends of his, and of trying to engage the police in a discussion about what they were doing, offering his own reflection on the minimal nature of the alleged damages in the form of a scratched bumper.

What happened that night was an arbitrary application of force against him by those charged with keeping the peace, something which, apart from the physical harm, would no doubt cause indignation and fear, and a loss of respect for the Montreal police. [ 120 ] As mentioned above, the claim relating to the alleged wrongful prosecution after the arrest is prescribed, and it is not necessary to comment any further whether or not the police had a malicious intention in initiating the process that led to the charges proceeding in the Montreal Municipal Court in respect of which Mr Kez was acquitted.

BY THESE REASONS, THE COURT: GRANTS in part the application; CONDEMNS the City of Montreal to pay the Plaintiff the amount of $ 5,000, together with interest at the legal rate plus the additional indemnity provided by

article 1619 of the Civil Code of Quebec , calculated from April 14, 2011. CONDEMNS the City of Montreal to pay the Plaintiff judicial disbursements of $ 159. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: September 22, 2014 and April 2, 2015

[2] Nelles c. Ontario, [1989] 2 RCS 170, (CSC);Proulx c. Québec (Procureur général), [2001] 3 RCS 9, 2001CSC 66 .