Ironstand v Winnipeg (City) et al, 2015 MBCA 118

Citation: Ironstand v Winnipeg (City) et al, 2015 MBCA 118 Date: 20151209 Docket: AI15-30-08409 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : KRISTY NICOLE IRONSTAND ) ) (Plaintiff) Appellant ) ) R. I. Histed ) for the Appellant - and - ) ) D. A. M.

Pambrun THE CITY OF WINNIPEG, CONSTABLE ) for the Respondent ZIMMERMAN, CONSTABLE BOONE, ) CONSTABLE SLOBODESKY, ) Appeal heard and CONSTABLE HANWELL, CONSTABLE ) Decision pronounced: BEVAN, CONSTABLE WHITNEY, ) December 9, 2015 CONSTABLE VAGI and CONSTABLE ) HERRICK ) ) (Defendants) Respondents ) BURNETT JA (for the Court): [ 1 ] The central issue in this appeal is whether the jury’s decision was perverse. Of particular concern is the jury’s negative response to one question (question 1 a)) as well as the jury’s failure to answer two questions (question 1

b) and question 1 c)). Those questions are set out below: 1

a) Was the plaintiff imprisoned by the defendants Constables Zimmerman and Boone on June 21, 2012? 1

b) Did the defendants Csts. Boone and Zimmerman promptly advise the plaintiff as to her reason for detention? 1

c) Did the defendants Csts. Zimmerman and Boone believe on reasonable grounds that detaining the plaintiff was necessary for the offence of obstructing justice? [ 2 ] In the decision tree sheet provided by the trial judge to the jury, it was directed to answer question 1

b) and question 1

c) only if it had answered yes to question 1 a); otherwise the jury was to proceed to question 2. [ 3 ] At trial, the evidence was clear that the plaintiff had been imprisoned by the defendants Csts. Zimmerman and Boone during her arrest when she was physically taken to the floor, handcuffed and then placed in the cruiser car. It was conceded by counsel for the defendants that this conduct amounted to an imprisonment. The jury’s answer to question 1 a) (i.e., that she was not imprisoned) was therefore clearly wrong on the evidence presented. [ 4 ] The jury may have been confused by the charge.

In the charge to the jury, the trial judge explained in detail the legal test for finding an imprisonment, whether physical or psychological. That was not necessary on the facts of this case given the concession by the defendants that an imprisonment had taken place. The issue was whether the imprisonment was justified. The charge indicated to the jury that it could find that there had been no imprisonment and move on to the next question. In the circumstances, the jury should have been directed that the evidence supported a finding of imprisonment, but that their obligation would be to consider

whether it was justified and therefore not a “false imprisonment”. [ 5 ] When the jury returned with their answers, the plaintiff moved for a mistrial. The trial judge concluded that while the answer to question 1

a) was “an irregularity”, it was not perverse. The trial judge also noted that the jury found that the defendants Csts. Boone and Zimmerman promptly advised the plaintiff as to her reason for detention (in response to another question to the jury, namely question 5 a)), and he concluded that because she was told the reason for her detention, “the actions of the defendants Boone and Zimmerman in detaining the plaintiff were reasonable.” [ 6 ] In our view, the appeal must be allowed whether or not the jury was misled by the charge since, simply stated, the jury’s failure to answer question 1

c) leaves unanswered whether the plaintiff has a valid claim in relation to the June 21, 2012 incident (e.g., a claim arising from a breach of her rights under

section 9 of the Canadian Charter of Rights and Freedoms ). While the jury found that the reason for detention was provided to the plaintiff, that by itself does not provide a sufficient evidentiary basis to conclude that the police officers believed that detaining the plaintiff was necessary. Nor could the trial judge answer that question.

An answer as to whether the police officers subjectively held that belief was required from the jury in the circumstances of this case. [ 7 ] We see no error with the jury’s findings in relation to the July 5, 2012 incident, but for the foregoing reasons, the appeal must be allowed and a new trial ordered in relation to the plaintiff’s claim arising from the June 21, 2012 incident. [ 8 ] Costs of this appeal will be in the cause. JA JA JA