2017 QCCA 1180, 2017 QCCA 1180

Godin c. City of Montreal 2017 QCCA 1180 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025421-157 (500-22-192655-127) DATE: August 8, 2017 CORAM: THE HONOURABLE JULIE DUTIL, J.A. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. BENOÎT GODIN NINA HAIGH ADAM O’CALLAGHAN APPELLANTS – Plaintiffs v. CITY OF MONTREAL RESPONDENT – Defendant JUDGMENT [ 1 ] On appeal from a judgment of the Court of Quebec, District of Montreal (the Honourable Sylvain Coutlé

e) rendered on June 9, 2015, dismissing Appellants’ action in damages. [ 2 ] For the reasons of Justice Schrager, with which Justices Dutil and Vauclair concur, THE COURT : [ 3 ] ALLOWS the appeal of NINA HAIGH and CONDEMNS the Respondent to pay to Appellant NINA HAIGH the sum of $2,000 together with interest at the legal rate and the special indemnity provided by the Civil Code of Quebec , from the date of the institution of proceedings with costs in first instance and in appeal; [ 4 ] ALLOWS the appeal of ADAM O’CALLAGHAN and CONDEMNS the Respondent to pay to Appellant ADAM O’CALLAGHAN the sum of $2,000 together with interest at the legal rate and the special indemnity provided by the Civil Code of Quebec , from the date of the institution of proceedings with costs in first instance and in appeal; [ 5 ] ALLOWS the appeal of BENOÎT GODIN for the sole purpose of reversing the cost order in first instance, without costs in appeal.

JULIE DUTIL, J.A. MARTIN VAUCLAIR, J.A. MARK SCHRAGER, J.A. Mtre Julius Grey Mtre Mathieu Laplante-Goulet GREY & CASGRAIN For Appellants Mtre Jean-Nicolas Legault-Loiselle GAGNIER GUAY BIRON For Respondent Date of hearing: May 3, 2017

REASONS OF SCHRAGER, J.A. [ 6 ] This is an appeal from the judgment rendered on June 9, 2015 by the Court of Quebec, District of Montreal (the Honourable Sylvain Coutlé

e) dismissing the Appellants’ action. [1] [ 7 ] In November 2011, an otherwise professional, disciplined and restrained police operation ended with the detention, prolonged in an unlawful and unreasonable manner with regard to two of the Appellants. [ 8 ] The Appellants were protestors amongst the group occupying Victoria Square in Montreal between October 15 and November 25, 2011 as the Montreal expression of the “Occupy Wall Street” movement in the United States.

They were arrested by the Montreal police following their refusal to vacate the square and, while they no longer contest the legality of the arrest, they do seek damages arising from certain police practices in conjunction with their detention. They contend that the marking of their hands with invisible and black ink violates their constitutional rights.

As well, they seek compensation arising from the photos taken of them during their detention and the duration and manner of that detention, including the cuffing of their hands with plastic ties and their transport to other parts of the city. [ 9 ] The occupation of the square, which eventually comprised a small and densely populated tent city including a kitchen, was initially tolerated by the city.

However, the municipal authorities ordered the public park which includes Victoria Square closed on a 24- hour basis (instead of the existing midnight to 6 am basis) and gave notice on November 23, 2011 that the various installations would be removed. On November 25, 2011, the order to leave was given by the Service de police de la Ville de Montréal (“SPVM”) to the sixty to seventy occupants of the square. Most people left voluntarily and peacefully. However, a dozen persons (including the Appellants) refused to leave and attached themselves to each other and parts of the kitchen tent.

The SPVM arrested them pursuant to the Code of Penal Procedure [2] and removed them physically given their refusal and passive resistance. [ 10 ] The three Appellants sued the city seeking damages as follows: Moral Physical Illegal arrest and detention Exemplary Benoît Godin $8,000 $5,000 $4,000 $3,000 Nina Haigh $8,000 $3,000 $6,000 $3,000 Adam O’Callaghan $8,000 $2,000 $4,500 $3,000 They alleged the illegality of the arrests, which is no longer an issue in appeal, and they also invoked the police behaviour referred to above as a foundation of their claims for damages.

The Appellants’ representations were unclear as to whether they considered the damages for “illegal arrest and detention” to be a moral or a bodily injury as per

Article 1607 of the Civil Code of Québec ( C.C.Q. ). TRIAL JUDGMENT [ 11 ] The judge explained that, for the case to succeed, the Appellants were required to demonstrate that the police did not act reasonably. As such, the judge addressed six specific allegations of fault invoked by the Appellants which translate into the grounds in appeal:

i) The absence of any valid reason to arrest them making such arrests illegal. The judge’s conclusion as to the legality of the arrests has not been raised in appeal, as indicated above. ii) The Appellants argued in first instance that they had not been informed of the reasons for their arrest as required by law, [3] but the judge concluded that the video recordings filed in evidence demonstrated otherwise. This conclusion has not been questioned in appeal. iii) The Appellants alleged the use of excessive force by the SPVM.

The judge concluded, again based on the video evidence, as well as the testimony of a training officer, that the techniques used and the force applied were not excessive given the necessity of physically removing the Appellants from the square, their persistent refusal and their passive resistance. The judge mentioned that the Appellants played on their physical removal to make a media statement.

The only part of this finding that is appealed is the matter of the binding of two of the Appellants hands behind their backs with plastic tie wraps. iv) The tying of the hands was, according to the judge, common practice and legal. Also, the judge ruled that the Appellants’ detention in a heated bus parked at the site for approximately 20 to 60 minutes was, in the circumstances, reasonable. The Appellants contest this finding in appeal.

v) The police took the Appellants’ photos following their arrest and the judge concluded that such photography for purposes of identification did not violate the Appellants’ fundamental rights. This finding is challenged in appeal. vi) The Appellants argue that the marking of their hands with invisible and black ink is a violation of their rights to the integrity of the person. The judge found that there was nothing offensive in the practice of identifying the individuals in such manner in the context of a mass arrest. [ 12 ] Given the aforementioned, the judge found that the police committed no fault.

He further found that, irrespective of a fault, the Appellants had suffered no damage given that any discomfort experienced by them was minor and temporary. [ 13 ] After an extensive analysis, the judge also concluded that the Appellants were obliged to give notice to the Attorney General of

Quebec pursuant to

Article 95 of the former C.C.P. , (now amended and replaced by

Article 76 C.C.P. ) and that the failure to give such notice precluded any claim to punitive damages arising from a violation of their rights under either the Canadian Charter of Rights in Freedoms [4] or the Charter of Human Rights and Freedoms . [5] While the appeal brief filed by the Appellants does not challenge this conclusion, the Appellants’ attorney served a notice on the Attorney General of Quebec approximately two weeks prior to the appeal hearing.

The office of the Attorney General responded by indicating that it did not intend to intervene in the case. [ 14 ] At the hearing before this Court, the Appellants confirmed that they do not challenge the judge’s conclusion on the requirement of notice. They confirm that their case relies solely on the C.C.Q. , albeit that there are certain rights protected by both the provincial and federal Charters also recognized by the general law. For example, and germane to this case, the inviolability of the human body, while recognized by

Section 7 of the Canadian Charter of Rights and Freedoms [6] and

Section 1 of the Charter of Human Rights and Freedoms [7] of Quebec, is also protected under

Article 10 C.C.Q. as well as the law governing extra-contractual liability generally (Article 1457 C.C.Q. ). [ 15 ] To succeed, the Appellants must convince the Court not only that the judge committed a reviewable error but, given their reliance on the civil law only, that a fault was committed by the police which caused the Appellants to suffer damages, either bodily, material or moral. GROUNDS OF APPEAL [ 16 ] The Appellants and the Respondent have articulated the questions in appeal differently so that I have recast them with a view to examining whether any of the following events contravened the Appellants’ rights and can be the source of a damage claim against the Respondent:

i) The marking of the hands with black and invisible ink following arrest; ii) The photographing of the Appellants; iii) The handcuffing or binding with plastic tie wraps while in custody; iv) The duration of the detention, including transporting two of the Appellants to other parts of the city prior to releasing them from custody. [ 17 ] I am cognizant of counsel’s submission that the behaviour of the police be looked at as a whole but I find this subject division necessary for a rational analysis.

DISCUSSION [ 18 ] Police officers, though justified to use force at times in the accomplishment of their duties are, like all citizens, responsible for faults committed in the exercise of those duties. [8] [ 19 ] The discretion they exercise in the performance of their duties is essential to the proper functioning of the criminal justice system. [9] [ 20 ] In the eyes of the civil law, the police are held to a reasonableness standard so that they must act as the reasonably prudent police officer in similar circumstances lest they engage their civil liability [10] and that of their employer. [ 21 ] The reasonable exercise of discretion by the police does not require that they apply the best method available, but rather that the choice of method used be reasonable in the circumstances. [11] Accordingly, in evaluating the reasonableness of police behaviour, judges should not use the benefit of hindsight, but rather place themselves in the position of the officers at the time that the latter acted. [12] [ 22 ] Though the leading case in the Supreme Court ( Hill ) espousing this reasonableness doctrine emanates from a Common Law province, the courts of Quebec have embraced the same standard. [13] [ 23 ] Given these principles, what of the police action invoked by the Appellants in this appeal? 1- Marking of the hands with black and invisible ink following arrest [ 24 ] Following their arrest, the back of one hand of each of the Appellants was marked with a number in black felt pen and invisible ink. [ 25 ] A police witness explained that this is done as a quick and expeditious means of identifying arrestees in a mass operation.

It avoids having to transport arrestees to a police station for identification purposes and thus prolonging detention. Though only 12 to 14 persons were arrested, the police foresaw the possibility of arresting up to 300 persons. Their experience indicated that some people refuse to identify themselves or give a false name, neither of which occurred in this instance.

The use of the number also allows the police to match the person arrested with any possessions seized (contraband or otherwise) which again was not the case here. [ 26 ] The invisible ink, of which the Appellants were not immediately aware, is visible under a special light so that the identification persists should the black ink be erased or blurred. [ 27 ] The hand marking would also be useful in the circumstances of this case to ease the identification of the Appellants should they return to occupy the square upon their release from custody.

Again, this was not the case but in the eyes of the police at the time it could have transpired. [ 28 ] Ordinarily, the ink would be gone from the skin in three days, although there was some suggestion that the felt pen would be susceptible of removal if not smudging almost immediately.

[ 29 ] The Appellants rely on the principle of the inviolability of their persons referring to the judgment of the Supreme Court of Canada in R. v. Stillman , [14] where teeth impressions and hair samples were forcibly taken by the police from a murder suspect in their custody. [ 30 ] Cory, J., speaking for the majority, stated that: 92 In my view, police actions taken without consent or authority which intrude upon an individual’s body in more than a minimal fashion violate s. 7 of the Charter in a manner that would as a general rule tend to affect the fairness of the trial.

Those opposed to this position may argue that it leads to the requirement that the state will have to justify legislation permitting bodily intrusion. Yet, I do not find that to be an unduly onerous requirement when dealing with bodily intrusions. (…) 92 À mon avis, les actions policières qui sont accomplies sans consentement ni autorisation et qui portent une atteinte plus que minimale au corps d’une personne violent l’ art. 7 de la Charte d’une manière qui, en règle générale, tend à nuire à l’équité du procès.

Ceux qui s’opposent à ce point de vue peuvent faire valoir qu’il mène à l’exigence que l’État soit tenu de justifier la mesure législative autorisant une atteinte à l’intégrité physique d’une personne. Cependant, je ne considère pas qu’il s’agit là d’une exigence trop onéreuse lorsqu’il est question d’atteintes à l’intégrité physique d’une personne. […] He emphasized the fundamental importance of the innate dignity and privacy to which individuals have a right: 93 (…) That dignity is, to a large extent, based upon the integrity and sanctity of the body.

That sanctity is violated if individuals are prevented from exercising their free will as to the use to be made of their own body by agents of the state. (…) [15] 93 […] Cette dignité est, dans une large mesure, fondée sur l’intégrité et l’inviolabilité du corps. Il y a atteinte à cette inviolabilité si une personne est empêchée d’user de son libre arbitre relativement à l’utilisation que des mandataires de l’État feront de son propre corps. […] 15 [ 31 ] I underline that not only was the intrusion in Stillman beyond minimal but it was a Charter case. [16] The Appellants do not rely on either Charter .

Whatever the physical intrusion by the marking of the hands in this case, it was momentary and minimal; the skin was not penetrated. The interference with the Appellants’ bodies, did not, on the evidence, interfere with their physical, psychological or emotional integrity in more than a fleeting manner; [17] and certainly no more than the fact of arrest, which the Appellants concede was legal, and is not invoked as the source of any damage.

Applying the civil law, one cannot characterize the marking of the Appellants’ hands as a fault committed by the police. [ 32 ] Though it might be argued that a person’s Charter rights dictate that he not be marked while in police custody in such a manner as to allow him later to be identified as a “trouble maker”, that argument is not available here as the Appellants do not rely on either the federal or provincial Charters . [ 33 ] Even if I were to agree that the police had committed a fault in this regard, there is no material damage that has been proven. Mr.

Godin stated that he did not go to work for three days because of the black mark on his hand but made no proof of his attempts to remove this mark (i.e. – to mitigate the damage) nor of any lost employment income Mr. O’Callaghan did try to remove the mark albeit unsuccessful for a few days, but he still went to work. Ms.

Haigh produced pictures of what is contended to be a skin rash caused by the ink which the judge found inconclusive underlining that she did not seek medical attention. [ 34 ] Also, there is no suggestion that the Appellants were bothered or suffered psychologically by the marking beyond the trouble of the arrest so that there would be no claim for moral damages either. [ 35 ] The judge’s analogy that the marking with invisible ink is common in bars and cinemas to identify paying customers is clearly misplaced since those customers consent to the marking of their hands (if only implicitly) as a condition of their entry into the establishment.

Clearly, the Appellants did not consent to the marking of their hands in this case but, on a balance of probability, they have not proved fault of the police nor that they suffered any damage resulting from the marking. There is consequently no reason to intervene and disturb the judge’s conclusion. 2- Photographing of the Appellants [ 36 ] The taking of photos of the Appellants by the police on the bus where they were detained was not textually permitted by the Code of Penal Procedure ( C.P.P. ).

The Identification of Criminals Act [18] does not apply because the Appellants were arrested for a by- law infraction and not an offence referred to in the latter statute. [ 37 ] The C.P.P. does not allow specifically for the photography. [19] The Appellants submit that, because they had given their names and addresses, no additional information such as their photographic image could be required for identification purposes. [ 38 ] This Court has recognized that the police may take a photo of people they arrest as part of their duty to retain evidence of the offence (i.e. – the identity of the alleged perpetrators).

In Alaoui v. R . , [20] the photography of fifty people arrested during an occupation was not sanctioned by the Court as it was deemed necessary to allow the police to identify the accused persons subsequently at the trial. A photo simply records in visual form what a sketch or notes of a detainee’s appearance would preserve in written form. [21] [ 39 ] A police officer acting reasonably would seek to preserve evidence of the offence including the arrestees’ identity and appearance for the purposes of collecting evidence to present to a court. There was consequently no fault committed by the police in

taking the photographs in question. Again, whatever argument based purely on Charter rights that might be made is not relevant given that the Appellants rely on the C.C.Q. [ 40 ] Moreover, no damage, bodily, material or moral, has been proven that might result from the taking of the photos after arrest. I would add that an extensive video recording was made by the police of the entire operation including the removal of the Appellants from their place of attachment in the kitchen. No argument has been raised arising from such photographic record, which includes images of the Appellants.

This video was also made without consent, but in a public place where Appellants could not have any reasonable expectation of privacy. Thus, Appellants could not be held to have suffered any damage from the video record of events prior to and during the process of arrest. 3- Binding with plastic tie wraps [ 41 ] Each Appellant was physically removed from the kitchen by a team of three police officers as shown on the video filed in evidence.

Between their removal and the photo taken on the bus where they were detained, Appellants Haigh and O’Callaghan had their hands bound with plastic tie wraps behind their backs. [ 42 ] The two Appellants contend that there was no reason to handcuff them as, once they were removed from the kitchen to the bus, they were cooperative and offered no physical resistance. [ 43 ] A police witness voiced a concern that the detainees might have attempted to rub out the black ink identification number marked on their hands if they were not bound. As well, one officer testified that the search of the Appellants was

summary so that there was a security concern should they have free movement while detained on the bus. The witness also raised the possibility that the Appellants might have continued their resistance by again joining hands on the bus or even attaching themselves similar to their behaviour in the kitchen. It is also noteworthy that detainees on the bus soon outnumbered the police who might enter the bus at any one moment.

It was also envisaged that should it be decided to transport all the detainees to a police station the bus driver’s security dictated that the occupants be restrained. [ 44 ] Police officers, acting reasonably, may handcuff an arrested person for reasons of security or to execute their duties. Even though handcuffing may arise upon arrest, the fact of arrest, even if legal, does not automatically give rise to the right to apply handcuffs to a detained person.

As such, the handcuffing of an individual in his sixties, arrested on suspicion of driving while intoxicated who was not resisting was ruled inappropriate by this Court. [22] In a domestic dispute, handcuffs initially placed by one officer at the scene had been removed when a second officer handcuffed the individual again because of a “vague suspicion” of “improper activity”. [23] This was ruled unreasonable. In Kavanaght v.

City of Montreal , [24] though the arrest of protestors was legal, the Superior Court held that their handcuffing and prolonged detention in the cells was not. [ 45 ] Handcuffing should not be carried out systematically. Applying handcuffs (or tie wraps) is within the discretion of an arresting officer but there must be a good reason to do it, such as the security of the police or others, including the arrestee.

The cuffs or ties can be used to control a detainee when justified in the circumstances. [ 46 ] The Respondent submits that the fact that Appellant Godin was not handcuffed indicates that the cuffs were not applied as a matter of “routine”. Oddly, though the video suggests that his physical resistance upon removal from the kitchen tent was more intense than the other individuals, no handcuffs were used to restrain him. No evidence suggests any aggressivity of either Appellants Haigh or O’Callaghan while under arrest. Indeed, initially, upon arrest they were not cuffed.

The tie wraps were attached upon or just before they were put on the bus for detention. [ 47 ] The justification offered by the trial judge is the discretionary power of the police in the circumstances. He does not attempt an analysis of any facts pertaining to the two Appellants who were cuffed but merely speaks in generalities.

The testimony of the police, while not specific to the behaviour of Appellants Haigh and O’Callaghan, does offer some reason to have handcuffed them. [ 48 ] Given that some explanation was offered, it is not possible to conclude that the judge committed a palpable error in concluding that no fault had been committed by binding these two Appellants’ hands. However, they continued to be cuffed once they were taken off the bus and the decision had been made not to issue a statement of offence and to release them. They were placed in the back seat of two police cars all the while with their hands bound.

As will be set out below, the continued detention of these two constitutes a fault. [ 49 ] I therefore conclude that the cuffing of Appellants Haigh and O’Callaghan initially did not constitute a fault as the circumstances put in evidence gave rise to the exercise of discretion to bind their hands which was not unreasonable in the circumstances. However, the hand ties were not removed once the police had decided to release them from custody. This was a fault.

It is not mentioned by the trial judge and such omission constitutes a palpable error. 4- Duration of the detention [ 50 ] The Appellants were detained in custody in the bus for 20 to 60 minutes according to the trial judge. The accounts of the duration varied in the testimonies. Once the decision was taken by the police not to issue statements of offence, Mr. Godin was released on site after he explained that his car was parked nearby. Appellant Haigh testified that she was asked where she lived and replied that though her home was in the Eastern Townships, she was staying with a friend in Verdun.

There is no similar testimony from Appellant O’Callaghan but since he had identified himself, the police knew his address to be at the northern end of St-Denis Street, in Montreal, as indicated in the record. Both Haigh and O’Callaghan were placed in the back of police cars with their hands still bound behind them and driven, in the case of Ms. Haigh to an eastern neighbourhood of Montreal, near the Frontenac metro station.

Appellant O’Callaghan was driven to and released near the Plaza Alexis-Nihon adjacent to the Atwater metro station in a western neighbourhood of town. [ 51 ] The Appellants submit that the duration of their detention was illegal. Once they had left the square and identified themselves, the police were in a position to issue statements of offence. The Appellants were no longer in a position to continue or to repeat the infraction for which they had been arrested. Thus, the proper application of

Section 75 C.C.P. required that they be released, according to the Appellants’ submission, within approximately 10 minutes. Moreover, the transport of Appellants Haigh and O’Callaghan was, as

submitted by the Appellants, unjustified and arbitrary. [ 52 ] Respondent pleads that, given all the circumstances and the need to avoid repetition of the occupation, the duration of the detention, including transport to other neighbourhoods, was reasonable. It adds that, if the detention was unreasonable, the Appellants suffered no damage.

The delay they experienced in going home was a normal and inevitable part of life as previously recognized by this Court. [25] [ 53 ] The C.P.P. provides that a person arrested must be released once there are reasonable grounds to believe that continued detention is no longer necessary to prevent the repetition or continuation of the offence. [26] If the police officer wishes to issue a statement of offence, he or she may require that the person provide his or her name and address, [27] and arrest him or her upon refusal to provide this information. [28] If the police officer does arrest the person, the latter must be released as soon as he or she provides their name and address. [ 54 ] Once the Appellants had provided their name and address, and their detention was not necessary to prevent the continuation or repeat of the occupation, the police were obliged, in this case, to release them. [ 55 ] The judge decided that the duration of the detention (20 to 60 minutes) was reasonable in the circumstances.

He did not discuss the transport of Appellants Haigh and O’Callaghan to other parts of the city. [ 56 ] In my opinion, the Appellants have not demonstrated a palpable error in the conclusion reached by the judge on this mixed question of fact and law up to the point where the Appellants were taken off the city bus parked near the square where they were initially detained. [ 57 ] The detention of the Appellants, to avoid repetition or continuation, was a matter of police discretion to be exercised reasonably.

The Appellants were admittedly part of a core group of protestors who physically bound themselves together and to the structure of the kitchen to avoid removal. It was necessary to detach and remove them physically one by one. This took time. Ms. Haigh was one of the first to be removed. It would have been difficult, in the circumstances, to release her before everyone was removed from the kitchen. At the same time other protestors and municipal workers were removing property from the square.

Taking all these elements into account makes it such that the duration of the detention cannot be second-guessed by the judiciary. A judge is ill placed to apply hindsight from the calm of his or her office to the tension of the scene to rule the duration of a 20-60 minute detention in the circumstances of this case as unreasonable. [29] [ 58 ] However, the proof indicates that when the Appellants were taken off the bus, it had been decided by the police that no statements of offence would be issued, the Appellants would not be charged and would be released.

Thus, they should have been so released given the decision made by the police. There was no longer justification for two of them to be detained, handcuffed in the back of a police car and transported to another part of the city and this, given the decision then having been taken by the police themselves. In a word, it was not reasonable to continue to detain them given that they had identified themselves and the police decided to release them without charge. Moreover, the transport to another part of the town was vexatious and harassing.

Though the police do not operate a taxi service, if having resolved to release the Appellants, the police really felt the necessity to remove Haigh and O’Callaghan out of the area of Victoria Square to avoid a re-occupation of the square, they could have uncuffed them and offered to drive them home. Instead, they left them handcuffed and transported them without consent to a distant point.

This constitutes a fault in what was otherwise reasonable action on the part of the police. [ 59 ] The judgment in Syndicat des cols bleus [30] invoked by the Respondents to argue that, even if the detention was improperly prolonged, no damage was caused, has no application to the present circumstances. It is one thing to say that loss of time in a traffic jam (caused by demonstrating municipal blue-collar workers) is a normal part of urban life.

It is quite another thing to draw on this to justify the use of police power specifically targeted at detainees in an unreasonable fashion. [ 60 ] In conclusion, the prolonged detention of Appellants Haigh and O’Callaghan once they exited the bus by transporting them to other parts of the city constitutes a fault committed by the police. These circumstances are nowhere mentioned in the judgment and such omission constitutes a palpable error. DAMAGE [ 61 ] What damage resulted from the unjustified prolonged detention and the use of tie wraps during this part of the detention?

The judge made no determination given his findings on fault. [ 62 ] I underline that the arrests were as admitted by Appellants, legal. For this reason, the decided cases awarding damages resulting from illegal arrests are of limited guidance regarding the amounts awarded. At best, moral damages are difficult to quantify with any precision. [31] In many of the decided cases dealing with illegal arrests, the citizen was going about his business only to find themselves in a scenario resulting in detention by the police. [32] In this case, the arrest of Appellants was foreseeable by them and probably desired.

The goal was to make a statement. People were told that the square was closed and given the opportunity to leave failing which they would be arrested.

Those attaching themselves to the kitchen tent, as the Appellants, awaited arrest. [ 63 ] Once arrested, the detention of 20 to 60 minutes was reasonable so it cannot give rise to damages. [ 64 ] The prolonged detention in the back of the police car and transport to another neighbourhood lasted approximately 20 minutes so that the decided cases dealing with prolonged detention are of minimal guidance. [33] This prolonged detention cannot be said to have had the psychological shock of an arrest, in the circumstances where Appellants had already been arrested and had anticipated such course of action by the police.

The transport did not result in loss or damage to Appellants in any material out of pocket manner. They were even given metro tickets by the police. The action however, was unreasonable, if not abusive. Appellants were at the very least inconvenienced by the displacement. As well, the continued binding of their hands obviously caused physical discomfort. [ 65 ] In 2011, this Court confirmed the judgment of the Court of Quebec awarding damages to Mr. Ruckenstein who was illegally

detained at the airport for one hour. He had a non-prohibited martial arts blade in his luggage. The Court of Quebec awarded $5,000 in damages (as well as $2,500 for his wife’s inconvenience even though she was not arrested). The Court of Quebec judge reviewed the applicable cases in coming to the foregoing awards as follows: [34] [127] Dans l’affaire Lauzon c.

Gatineau (Ville de) [35] , le juge Barbe, de la Cour du Québec, procède à une revue de la jurisprudence sur la question des dommages accordés par les tribunaux, suite à une arrestation injustifiée : « [28] Quant à l'étendue des dommages à la suite de cette arrestation injustifiée, la Cour a étudié les jugements en semblables matières. [29] Dans Corrigan c. MUC, ( 1980 C.S. 853 à 860), on a accordé une indemnité de 5 000 $ pour les dommages moraux et matériels subis par un demandeur arrêté et détenu pendant une période de trois heures . [30] Dans Rodrigue c.

CUM, ( 1981 C.S. 442 à 446), la Cour accorde une indemnité de 10 000 $ pour l'arrestation et la détention illégale d'une durée de plus de quatre heures . [31] Dans Spooner c. CUM, ( J.E. 87-365 ), le Juge Rouillard accorde une indemnité de 5 000 $ pour fouilles et arrestation illégale , mise sous écrou non justifiée et humiliation alors que le demandeur avait été retenu en détention plus d' une heure . [32] Dans Heath c.

P.G. du Québec, ( 1987 R.J.Q. 1168 à 1173), la Cour accorde une somme de 7 000 $ pour sévices et humiliation à la suite d'une arrestation injustifiée, d'une discussion de 30 minutes, de la pose de menottes pendant une courte période et de la détention injustifiée au poste de police pour une période indéterminée, mais qui semble courte . [33] Dans Crépeau c. Yannonie, ( 1988 R.R.A. 265 à 272), la Cour accorde une indemnité de 5 000 $ à

titre de dommages moraux et une somme additionnelle de 5 000 $ pour dommages exemplaires puisque le défendeur avait eu un comportement indigne d'un agent de la paix. Voir aussi Cagney c. CUM, ( 1998 R.R.A. 515 (C.S.) ; Tomer c. CUM, (500-02-019404-941 (C.Q.); Laflamme c. CUM, 1996 R.R.A. 689 (C.S.) ; Girard c. CUM, (500-05-013361-926 (C.S.)). » [128] Dans l’affaire Coté c. Ville de Longueuil, l'honorable Christiane Alarie [sic], de la Cour supérieure, a recensé plusieurs jugements qui traitent aussi de quantum des dommages en semblables matières [36] . « 127. Dans l'affaire Michaelson et al. c.

Régie intermunicipale de police des Seigneuries , le juge Joël Silcoff accorde 10 000 $ à un individu détenu illégalement pendant une soirée , et par la suite acquitté. 128. Dans l'arrêt Québec (Procureur général) c. Allard [37] , le demandeur est arrêté et incarcéré un vendredi après-midi vers 16 heures. Il est détenu jusqu'au lundi matin. Un montant de 10 000 $ lui est accordé pour arrestation abusive et 25 000 $ pour détention illégale et abusive. 129. Dans la cause Leroux c. Communauté urbaine de Montréal [38] , la juge Anne-Marie Trahan accorde 5 000 $ à un individu arrêté et détenu illégalement .

Une somme supplémentaire de 5 000 $ lui est octroyée pour détention prolongée . L'individu, arrêté vers 21:00 est libéré vers 3 heures du matin alors qu'il aurait pu l'être bien plus tôt. » [129] Dans cette affaire, M. Côté est arrêté à l'aréna. Il est emmené au poste de police dans une voiture de patrouille. Arrivé au poste, il est écroué et les policières prennent sa déclaration. Il passe environ une heure au poste avant d’être libéré sur promesse de comparaître. Le Tribunal, utilisant sa discrétion, lui accorde 4 000 $ à

titre de dommages-intérêts. [130] Dans la cause Khoury c.

Dupuis [39] , un montant de 5 000 $ est accordé au demandeur pour atteinte à sa liberté et à sa dignité, résultant de son arrestation illégale et la privation de sa liberté durant une heure qu’il est retenu dans une auto-patrouille. [Emphasis added] [ 66 ] In all the circumstances, given the inconvenience (of the transport) and discomfort (of the tie wraps), I would award $ 2,000 each for moral and material loss to each of Haigh and O’Callaghan. [ 67 ] Exemplary damages are not in issue, as no reliance is placed on the Charter of Human Rights and Freedoms . [ 68 ] Appellant Godin’s detention was not prolonged and he was not handcuffed so that he is not in a position to claim any damages. [ 69 ] For all of the foregoing reasons, I propose to allow the appeal in part with respect to Appellants Haigh and O’Callaghan so as to reverse the judgment of first instance and condemn the Respondent to pay to each of these two Appellants the sum of $2,000 with interest and special indemnity.

I would award legal costs in appeal and first instance as well. The appeal of Mr. Godin should be dismissed but given the questions of public interest involved, no legal costs will be awarded against him in appeal and first instance as well. MARK SCHRAGER, J.A. ANNEX TO THE REASONS OF SCHRAGER, J.A.

Code of Penal Procedure , CQLR, c. C-25.1. Code de procédure pénale , RLRQ, c. C-25.1 72. A peace officer who has reasonable grounds to believe that a person has committed an offense may require the person to give him his name and address, if he does not know them, so that a statement of offense may be prepared. 72. L’agent de la paix qui a des motifs raisonnables de croire qu’une personne a commis une infraction peut exiger qu’elle lui déclare ses nom et adresse, s’il ne les connaît pas, afin que soit dressé un constat d’infraction.

A peace officer who has reasonable grounds to believe that the person has not given him his real name and address may require further information from the person to confirm their accuracy. L’agent qui a des motifs raisonnables de croire que cette personne ne lui a pas déclaré ses véritables nom et adresse peut, en outre, exiger qu’elle lui fournisse des renseignements permettant d’en confirmer l’exactitude. 73. A person may refuse to give his name and address or further information to confirm their accuracy so long as he is not informed of the offence alleged against him. 73.

Une personne peut refuser de déclarer ses nom et adresse ou de fournir des renseignements permettant d’en confirmer l’exactitude tant qu’elle n’est pas informée de l’infraction alléguée contre elle. 74. A peace officer may arrest without a warrant a person informed of the offence alleged against him who, despite the peace officer’s demand, fails or refuses to give him his name and address or further information to confirm their accuracy. 74.

L’agent de la paix peut arrêter sans mandat la personne informée de l’infraction alléguée contre elle qui, lorsqu’il l’exige, ne lui déclare pas ou refuse de lui déclarer ses nom et adresse ou qui ne lui fournit pas les renseignements permettant d’en confirmer l’exactitude. The person so arrested must be released from custody by the person detaining him once he gives his name and address or once their accuracy is confirmed. La personne ainsi arrêtée doit être mise en liberté par celui qui la détient dès qu’elle a déclaré ses nom et adresse ou dès qu’il y a confirmation de leur exactitude. 75.

A peace officer who finds a person committing an offence may arrest him without a warrant if that is the only reasonable means available to him to put an end to the commission of the offence. 75 . L’agent de la paix qui constate qu’une personne est en train de commettre une infraction peut l’arrêter sans mandat si l’arrestation est le seul moyen raisonnable à sa disposition pour mettre un terme à la perpétration de l’infraction.

The person so arrested must be released from custody by the person detaining him once the latter person has reasonable grounds to believe that detention is no longer necessary to prevent, for the time being, the repetition or continuation of the offence. La personne ainsi arrêtée doit être mise en liberté par celui qui la détient dès que celui-ci a des motifs raisonnables de croire que sa détention n’est plus nécessaire pour empêcher la reprise ou la continuation, dans l’immédiat, de l’infraction.