r v. Ottawa Police Services Board, 2017 ONSC 4331

CITATION : Carr v. Ottawa Police Services Board , 2017 ONSC 4331 COURT FILE NO.: 10-49203 DATE: 2017/07/14 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Roxanne Carr Plaintiff – and – Ottawa Police Service Constable Cindy Cybulski, Ottawa Police Service Constable Michael Adlard, Ottawa Police Service Constable Shawn Virgin, Ottawa Police Service Constable Darren Shore, Ottawa Police Service Detective Constable David West, Ottawa Police Service Constable M.

Morris, Ottawa Police Service Constable Richard Marcil, Ottawa Police Sergeant Steven Desjourdy and the Ottawa Police Services Board Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Lawrence Greenspon and Marisa Victor , counsel for the Plaintiff Geoffrey J. Cantello , counsel for the Defendants ) ) HEARD AT OTTAWA: May 11–13, May 16–19, 25 and 27, 2016 REASONS FOR JUDGMENT COrthorn J. Overview [ 1 ] For Roxanne Carr, the hot summer afternoon of August 23, 2008 began sitting on the front steps of her home, enjoying the company of a friend.

To Roxanne’s surprise, the police arrived in the middle of the afternoon. A police officer told her that she was required to leave the premises. [ 2 ] The course of the afternoon turned in a moment, when Roxanne stood up from the front steps to enter her home and retrieve her personal belongings. Roxanne was not permitted to leave the premises peaceably, as she intended. Instead, the situation escalated. Roxanne was taken to the ground, handcuffed, and arrested.

A total of seven police officers were involved in detaining Roxanne, arresting her, transporting her to the police station, searching her, restraining her upper and lower limbs, placing her in a holding cell, searching her a second time, and leaving her naked in the cell for several hours before she was permitted to leave the Ottawa police station. [ 3 ] An eighth officer investigated the events of the day. He decided that Roxanne would be charged with assault, assaulting a police officer, resisting arrest, and mischief.

The charges were subsequently withdrawn because of the lack of a reasonable prospect of conviction. [ 4 ] The situations that police officers are called upon to respond to are wide-ranging. Some situations involve no illegal activity

whatsoever; others involve the most heinous of human behaviour. Through training and experience, police officers develop the judgment they require to assess situations and determine how to handle them. [ 5 ] At the heart of this case is the manner in which each of the officers exercised their judgment in dealing with Roxanne on August 23, 2008. [ 6 ] Roxanne claims damages for injuries suffered, economic losses, and expenses incurred and to be incurred in the future, damages on the basis of breaches of her rights pursuant to the Charter of Rights and Freedoms , and punitive damages.

The Issues [ 7 ] The issues to be determined are: 1. Was the arrest of Roxanne Carr lawful under either the provincial Trespass to Property Act or the Criminal Code of Canada ? 2. Did any of the officers use excessive force when dealing with Roxanne Carr? 3. Were any of the officers negligent in carrying out their investigation of the events of the afternoon of August 23, 2008? 4. Were Roxanne Carr’s rights pursuant to sections 7, 8, or 9 the Charter of Rights and Freedoms breached as a result of the conduct of one or more of the defendants? 5.

Was the Ottawa Police Services Board negligent because it failed to provide its officers with reasonable training, supervision, and oversight? 6. To what damages, if any, is Roxanne Carr entitled under the following headings:

a) General damages;

b) Loss of income, loss of competitive advantage, or loss of earning capacity;

c) Out-of-pocket expenses and future care expenses;

d) Breach of Charter rights; and

e) Punitive damages. Background [ 8 ] In the spring of 2008, Roxanne began to share a townhouse rented by her former boyfriend, Devon Morgan. They shared the home as roommates, each paying $500 per month in rent. [ 9 ] Roxanne planned to move out of the home a few days prior to the end of August 2008. She told Morgan of her intention to do so. [ 10 ] On the afternoon of August 23, 2008, Roxanne’s friend, Shawn Lavigne, visited with Roxanne at the townhome. Lavigne arrived in the early afternoon. The two spent a couple of hours conversing, seated on the front steps of the home.

Roxanne believed Morgan was in Montreal that day. [ 11 ] The afternoon was disrupted when two police officers, Constables Adlard and Cybulski, arrived at the home. Adlard told Roxanne to go inside and ask Morgan to come outside. Roxanne complied with the request, despite having responded that Morgan was not home. To Roxanne’s surprise, Morgan was inside the home. Morgan went outside and spoke with the officers.

Roxanne returned to sit on the steps with Lavigne. [ 12 ] Following their conversation with Morgan, Adlard and Cybulski had the impression that they were dealing with a situation of “removal of an unwanted person”. They did not believe that the situation was one involving criminal activity. [ 13 ] After speaking with Morgan, Adlard and Cybulski returned to the front of the home. Morgan followed them. Adlard told Roxanne that she was required to leave the premises. Roxanne was taken aback by the request. [ 14 ] Roxanne was unable to convince Adlard that she paid rent and was entitled to remain at the home.

During her discussion with Adlard, Roxanne stood up from her seated position on the steps. Adlard believed that Roxanne was about to assault Morgan. There was no physical contact between Roxanne and Morgan. Adlard brought Roxanne to the ground and arrested her for assault. With Cybulski’s assistance, Adlard handcuffed Roxanne. The arrest occurred within eight minutes of the officers arriving at the home. [ 15 ] The two officers took Roxanne to one of their cruisers and placed her in the back seat.

Two other officers, Constables Virgin and Shaw, arrived at the scene. [ 16 ] When in the first cruiser, Roxanne kicked the rear passenger and driver’s side windows out of the cruiser. The officers then placed Roxanne’s ankles in flex cuffs so as to restrain her leg movement. The officers carried Roxanne to the back seat of another cruiser parked nearby. [ 17 ] When Roxanne was in the second cruiser, paramedics attended at the scene. Roxanne’s mother also attended at the scene, spoke with at least one of the officers, and spent time with Roxanne.

[ 18 ] Adlard drove Roxanne to the sally port area of the Ottawa police station. Constable Cybulski and Special Constable Morris, the latter a cell block officer, removed Roxanne from the cruiser. They dragged Roxanne into the cell block area and placed her on the ground face down so that a search could be conducted. [ 19 ] Cybulski and Morris carried out the search. Throughout the search, Roxanne was handcuffed, with her ankles in the flex cuffs, and lying on the ground. Cell block officers Special Constable Marcil and Sergeant Desjourdy were present during the search but did not assist.

After the search was completed, the flex cuffs were removed, Marcil applied a temporary restraining device (“TRD”) to keep Roxanne’s arms tied together behind her back, and the handcuffs were removed. Marcil took Roxanne to a holding cell. He removed the TRD once Roxanne was inside the cell. [ 20 ] Sometime later, one of the cell block officers called an alert with respect to an incident in Roxanne’s cell. The alert was that Roxanne was trying to strangle herself with her own clothing (her top). In response to the alert, at least four officers went to the cell. Some of the officers removed Roxanne’s clothing.

Morris, who was one of the officers to attend at the cell, gave Roxanne a suicide suit to wear. [ 21 ] Shortly after receiving the suicide suit, Roxanne threw it out of the cell. Roxanne remained naked in the cell for between 2.25 and 3 hours before she was provided with a second, larger-sized suicide suit. During that time, an officer passed by Roxanne’s cell every half hour as part of a regular cell check. In addition, Roxanne’s cell could be seen on the monitors of the closed-circuit cameras. [ 22 ] Shortly after midnight, Detective West attended in the hallway outside Roxanne’s cell.

He outlined the charges being laid, the evidence he relied upon, and why the charges were being laid. He did not attempt to obtain from Roxanne her version of the events of the day. Roxanne was later allowed to leave her cell, retrieve her clothing and personal items, and leave the building. She took a taxi to her mother’s home. [ 23 ] Roxanne seeks compensation for physical injuries suffered at the time of arrest and in the course of being searched and taken to a holding cell. She also seeks compensation for psychological injury suffered in the form of post-traumatic stress disorder, anxiety, and insomnia.

Roxanne’s claim includes damages for economic losses on the basis that because of the psychological injuries suffered she has been and shall remain unable to return to gainful employment. [ 24 ] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the Criminal Code of Canada , to arrest Roxanne without a warrant? [ 25 ] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act , R.S.O. 1990, c. T.21 (“ TPA ”) and the Criminal Code of Canada , R.S.C. 1985, c. C-46 (the “ Code ”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA [ 26 ] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see

section 2. [ 27 ] To make an arrest without a warrant pursuant to the TPA , a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1) . [ 28 ] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of

section 2 of the TPA ? For the following reasons, I find they did not: • As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home; • As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home; • There is no evidence that Morgan gave Roxanne notice to leave the home; and • There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home. [ 29 ] In

summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent- paying sub-tenant, entitled to remain on the premises. ▪ Roxanne was, at a Minimum, a Licensee and Entitled to Remain [ 30 ] As of August 2008, Adlard had been a constable with the Ottawa Police Service (“OPS”) for eight years. Cybulski began working with the OPS as a civilian in 2000. She became a constable in 2006. [ 31 ] After being dispatched to a “dispute/disturbance” call, Adlard and Cybulski arrived at the home in separate cruisers.

From their brief conversation with Morgan, the officers understood that Morgan was uncomfortable with Roxanne remaining at the home. He wanted Roxanne removed from the home that afternoon. [ 32 ] Had the situation been hers to manage, Cybulski would have attempted to have Roxanne leave the premises. If Roxanne had refused to leave, Cybulski would have “spent a lot more time just talking or finding a solution.” Cybulski was not certain that a trespass

notice would have been issued to Roxanne if she had refused to leave. Cybulski had no intention of arresting Roxanne. [33] However, the situation was not Cybulski’s to manage. Adlard was the first officer to respond to the call; the situation was histo manage. The approach adopted by Adlard is in stark contrast to Cybulski’s approach. Adlard immediately adopted a forceful, if notconfrontational, approach with Roxanne. [34] Adlard’s evidence was that in responding to calls of this type, police are not in the “eviction business”.

Adlard testified that tobe fair to Roxanne in the circumstances, he needed to speak to her. Yet, Adlard asked Roxanne only one question before he arrested her: Was her name on the lease for the home? [35] From the conversation with Morgan, Adlard knew that Roxanne paid rent. He also knew that Roxanne and Morgan sharedcommon facilities in and the entranceway to the home. Adlard acknowledged that prior to telling Roxanne she was required to leave thepremises he knew nothing more about the arrangement between Morgan and Roxanne.

At no time did Adlard determine any of thefollowing from either Morgan or Roxanne: • When Roxanne had moved into the home; • How much she paid in monthly rent; • The months for which she had paid rent (including whether she had paid rent for the month of August); • If or when Morgan gave notice to Roxanne to leave; or • The date on which Roxanne was scheduled to leave the home. [36] Adlard focussed on the fact that Roxanne’s name was not on the lease. He concluded that (

a) Morgan gave Roxanne notice toleave, (

b) there was nothing in the law with respect to tenancy to protect Roxanne, and (

c) Roxanne had to leave the home. [37] Roxanne’s evidence was that in response to being told to leave the premises she asked Adlard to do two things. The first wasfor him to speak to her mother, with whom Roxanne was in contact by cell phone. Adlard refused to do so. The second was to look at awritten agreement between Roxanne and Morgan regarding sharing the townhome. Roxanne wanted to retrieve the document frominside the home. Roxanne testified that Adlard refused to let her retrieve it.

Adlard denied that such a request was made. [38] Both Adlard and Cybulski understood that Morgan and Roxanne had, by a verbal agreement or otherwise, been sharing thehome. Whether or not a written agreement existed is irrelevant to the outcome of this case. If such an agreement existed, then Roxannewas a sub-tenant in the home and entitled to remain. [39] Even on the basis of a verbal agreement, Roxanne was, at a minimum, a licensee with respect to the home (see Jamieson v.Saucier, [1986] O.J. No. 1915 (Dist. Ct.), at p. 2; Maxwell v. Brown (1982), (ON SC), 35 O.R. (2d) 770 (Co. Ct.), atparas. 7, 10).

A licensee is not entitled to the protection afforded to a tenant under the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Nonetheless, a licensee is entitled to adequate notice if they are asked to leave the premises (Jamieson, at p. 2). [40] By his own evidence, Adlard lacked reasonable and probable grounds to conclude that by refusing to leave the home,Roxanne was contravening

section 2 of the TPA. I find that Adlard lacked authority pursuant to section 9(1) of the TPA to arrestRoxanne without a warrant.

b) Arrest Without a Warrant Under the Code [41] When Roxanne stood up, Adlard put his hand on her arm in an effort to stop her from moving. Adlard acknowledged that asof that time, Roxanne was under arrest. She was arrested by Adlard for the offence of assault, a hybrid offence under

section 266 of theCode. [42] Section 265(1) of the Code states that an individual commits an assault when: (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believeupon reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [43] In limited circumstances, a police officer may rely on the Code as authority to arrest a person without a warrant. Thosecircumstances are set out in

section 495 of the Code. [44] Did Adlard have authority, pursuant to

section 495, to make an arrest without a warrant for the offence of assault on theafternoon of August 23, 2008? I conclude he did not: • An indictable offence had not been committed (s. 495(1)(a)); • Reasonable grounds did not exist for Adlard to believe that Roxanne was about to commit an indictable offence (s. 495(1)(a)); • Adlard did not find Roxanne committing a criminal offence (s. 495(1)(b)); and • Reasonable grounds did not exist for Adlard to believe that an arrest without a warrant was required to establish identity, secure orpreserve evidence, prevent the continuation or repetition of an offence, or prevent the commission of another offence and that unless an

arrest was carried out Roxanne would fail to attend in court (ss. 495(2)(c),(d),(e)). [45] Consider Roxanne’s circumstances when seated on the front steps of the home and told to leave the premises. The yard wassmall and fenced. There were five people in the yard: Roxanne, Morgan, Lavigne, and two uniformed police officers. Each of Adlard,Cybulski, and Morgan was less than eight feet away from Roxanne. The photographs of Morgan entered as exhibits are of a fit andstrong individual. [46] Roxanne’s attempts to respond to Adlard and present her side of the situation had failed.

She had given notice to Morgan thatshe intended to leave the home within a matter of days of August 23, 2008. Roxanne’s mother lived in the city. Roxanne had a place togo. I accept Roxanne’s evidence that when she stood up from the steps it was her intention to enter the home, retrieve some of herbelongings, and leave the premises. [47] The evidence as to what transpired at the home was given by Roxanne, Adlard, and Cybulski. Neither Morgan nor Lavignetestified at trial. Roxanne’s evidence is generally consistent with Cybulski’s evidence with respect to the events leading up to Roxanne’sarrest.

They each testified that: • Immediately before standing up, Roxanne was seated on the front steps of the home with Lavigne beside her; • Adlard told Roxanne that she was required to leave the premises; • Adlard explained to Roxanne that if she refused to leave she would be given a trespass notice – “trespassed” in Cybulski’s words; • Adlard told Roxanne she could, before leaving, re-enter the house to retrieve her things; and • Roxanne stood up after being told she was permitted to re-enter the house to retrieve her things. [48] Adlard’s evidence as to what transpired differs from Roxanne’s and Cybulski’s evidence.

For the following reasons, I preferthe evidence of Roxanne and Cybulski over Adlard’s evidence with respect to the events leading up to the arrest for assault. [49] First, Adlard testified that Roxanne was seated in a plastic chair in the yard and not on the steps to the house. In cross-examination, he acknowledged that the latter scenario was possible. [50] Second, there were a number of internal inconsistences in Adlard’s evidence. For example, he initially described tellingRoxanne that she “might” be required to leave the premises.

However, more than once in cross-examination, Adlard admitted that hetold Roxanne in no uncertain terms she was required to leave the premises. [51] Third, it was not until Adlard was, in cross-examination, taken to his discovery transcript that he admitted that, not only did hetell Roxanne she was required to leave, he told her that if she refused to leave she could be arrested. [52] It is not disputed that Roxanne’s agitation showed in her choice of words when speaking with Adlard. Roxanne admitted thatshe used expletives at times. Adlard described Roxanne as belligerent.

He based that description on nothing more than Roxanne’s use ofexpletives and her request that Adlard speak on the telephone with her mother.

Neither speech peppered with expletives nor belligerenceof that kind is indicative of an individual who is on the precipice of committing the offence of assault. [53] There is no evidence that prior to standing up, Roxanne directed any of her comments, expletives, or agitation towardsMorgan personally. [54] I find that regardless of Roxanne’s use of expletives, her belligerence, and her demonstrable level of agitation, she did nothingprior to standing up to cause either of the officers any concern that she posed a threat of physical harm to Morgan.

To that point, theofficers did not have reasonable and probable grounds to arrest Roxanne for assault. [55] In assessing whether Adlard had grounds to make an arrest, his conduct is considered both objectively and subjectively. Anofficer must have reasonable and probable grounds on which to base an arrest. In addition, those grounds must be justifiable whenviewed objectively: “[A] reasonable person placed in the position of the officer must be able to conclude that there were indeedreasonable and probable grounds for the arrest” (R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at p. 251).

It is, however,recognized that the officer need not establish a prima facie case for conviction before carrying out an arrest (Ibid.). [56] Why did Adlard arrest Roxanne for assault and Cybulski thereafter assist Adlard in handcuffing Roxanne?

Critical to theirhandling of the situation was their respective assessment of Roxanne’s movement when she stood up from her seated position. [57] Adlard’s evidence was that when Roxanne stood up he believed: • Roxanne was “about” to assault Morgan; • “[A]n assault was going to occur”; • Roxanne’s movement was indication of “an imminent assault”; and • “[C]ontact was about to happen”. [58] Adlard acknowledged, however, that there was no contact between Roxanne and Morgan before the arrest. [59] Both Adlard and Cybulski testified that, upon standing, Roxanne “lunged” towards Morgan.

Adlard gave four explanations asto what he meant by a “lunge”:

a) A step towards Morgan;

b) A very big step;

c) Essentially the same thing as a step, given the distance separating Roxanne and Morgan; and

d) Moving towards Morgan “aggressively”, one foot in front of the other. [60] Adlard’s description of Roxanne’s movement changed as he made record of it throughout the course of the day. In his notes,Adlard described Roxanne’s movement as “aggressive”. In his Investigative Action Report (“IAR”), prepared several hours after thearrest, Adlard described the movement as both “aggressive” and “assaultive”.

It is difficult to accept that Adlard’s memory of the eventsimproved with the passage of time, even if only a few hours. [61] Cybulski’s evidence was that Roxanne was “upset” and “looked as though she might assault Morgan.” Cybulski alsodescribed the step taken by Roxanne as a “lunge”. Cybulski testified that, as Roxanne made the movement, one of Roxanne’s armsmoved in front of her body and towards Morgan. [62] In her notes made following the incident, Cybulski made no mention of an arm movement. She made no mention of it in herIAR. Adlard testified that he did not observe any arm movement.

I find that Cybulski is honestly mistaken about her observation of anarm movement. The arm movement, if made, would in any event be consistent with Roxanne’s evidence that she turned towards thefront door of the house to open it. [63] I find that when Roxanne stood up she did not “lunge” towards Morgan, nor did she move her arm in a manner that wouldcause a reasonable person in either of the officers’ positions to conclude that Roxanne was attempting or threatening to apply force toMorgan. By standing up, Roxanne did not add volatility to the situation.

Her movement did not cause the situation to change rapidly orto require immediate intervention by the officers. The situation remained as it had been: “the removal of an unwanted person”. [64] I find that there was neither a subjective nor an objective basis upon which to conclude that there were reasonable andprobable grounds to arrest Roxanne for assault. With respect to

section 495 of the Code, I find that the reasonable grounds required tosupport an arrest without a warrant did not exist.

c) Summary [65] Adlard and Cybulski did not have authority to arrest Roxanne without a warrant under either the TPA or the Code. [66] Roxanne’s claim against the officers is based on the tort of false arrest and false imprisonment. The former is a “tort resultingfrom the intentional and total confinement of a person against his or her will and without lawful justification” (Collis v. Toronto PoliceServices Board (2007), (ON SCDC), 228 O.A.C. 333 (Div. Ct.), at para. 28).

I find that Roxanne has established theliability of Adlard for the tort of false arrest. [67] The tort of unlawful imprisonment “flows from the total deprivation of a person’s liberty” (Ibid). Roxanne has establishedthat, when she was placed in handcuffs, she was totally deprived of her liberty. I find that Adlard is responsible for Roxanne beingplaced in handcuffs. The arrest and subsequent handcuffing were the first in a series of events that led to Roxanne being falselyimprisoned. [68] Cybulski’s role in the events at the home were that of a second officer on the call.

For the reasons discussed below (underIssue No. 3), I find that the decision to arrest and to apply handcuffs was not hers. Cybulski assisted Adlard only when she saw thatRoxanne was resisting arrest. I find that Cybulski is not liable for either false arrest or false imprisonment. Issue No. 2 – Did any of the officers use excessive force in their involvement with Roxanne Carr?

a) The Legal Standard for Use of Force by Police [69] Police officers may be required to resort to force to complete an arrest or to prevent an offender from escaping custody. Thereis, however, a limit to the power of police officers, acting in the course of their duties, to inflict harm on a person. The degree of forceallowed “remains constrained by the principles of proportionality, necessity and reasonableness” (R. v. Nasogaluak, 2010 SCC 6, [2010]1 S.C.R. 206, at para. 32.) [70]

Section 25 of the Code prescribes legal constraints on the use of force by police officers. The Supreme Court of Canada, inNasogaluak (at paras. 34 and 35), considered

section 25 and established guidelines for its application to the circumstances of a givencase: • The use of force by a police officer to effect a lawful arrest is justified, provided that the officer (

a) acted on reasonable andprobable grounds to make the arrest, and (

b) used only as much force as was necessary in the circumstances (section 25(1)). • A police officer is prohibited from using a degree of force intended or likely to cause death or grievous bodily harm, unless theofficer believes such force is necessary to protect him or herself or another person under the officer’s protection from death or grievousbodily harm (section 25(3)). • The officer’s belief as to the degree of force necessary must be objectively reasonable.

A review of the degree of force used hasboth a subjective and an objective component. • The actions of a police officer are not to be judged against a standard of perfection. The conduct of the police is to be judged inlight of their dangerous work and the emergency situations in which they carry out their work.

[ 71 ] The officers deny they used excessive force. In their pleading, the officers only rely generally on the provisions of the Code . Based on the evidence of the officers and the closing argument on their behalf, it is clear that they rely specifically on

section 25 in their defence of the claims based on use of excessive force. [ 72 ] For the officers to successfully rely on

section 25 , they must satisfy a three-part test ( Wilson v. Durham Regional Police , 2011 ONSC 3419 , at para. 68 ; the “ Wilson test”). They must establish on a balance of probabilities that they:

a) Were required or authorized by law to carry out the actions undertaken in their administration and enforcement of the law;

b) Acted on reasonable grounds in carrying out the actions; and

c) Did not use unnecessary force. [ 73 ] For the purpose of applying

section 25 of the Code to the events of August 23, 2008, I have divided the incidents into three periods: (

i) the arrest at the home; (ii) at the cruisers; and (iii) at the police station.

b) Arrest at the Home ▪ Adlard’s Actions [ 74 ] I have already found that Adlard did not have authority to arrest Roxanne without a warrant. As a result, Adlard is unable to satisfy the part one of the Wilson test. If, however, I am wrong, and the arrest was lawful, then it is necessary to consider the parts two and three of the test. [ 75 ] I have also already found that Adlard did not have reasonable and probable grounds to arrest Roxanne for either an offence under the TPA or for assault pursuant to the Code .

Adlard is therefore unable to satisfy part two of the test. [ 76 ] Part three of the Wilson test requires consideration of the degree of force used. It is undisputed that upon standing from a seated position, Roxanne was taken to the ground and handcuffed by Adlard.

The evidence is contradictory as to whether Roxanne was brought down by Adlard from behind or otherwise; whether, once Roxanne was on the ground, Adlard applied pressure to her shoulder using his knee and, at times, pressure to her face using his boot; and whether after handcuffing Roxanne, and with pressure still applied to her face, Adlard told Roxanne to get up or he would break her wrist. [ 77 ] I find that there is no evidence to support a belief on Adlard’s part that he or anyone “under his protection” (i.e. Morgan), was at risk of death or grievous bodily harm.

Adlard testified that the only portion of the discussion with Morgan to which he gave credence was Morgan’s request that Roxanne be removed from the premises that afternoon. Adlard disregarded Morgan’s alleged concerns for his physical safety. [ 78 ] Roxanne testified that during the arrest (

a) Adlard was holding her wrist so tight that she was in significant pain, and (

b) at least one bone in her wrist was fractured. [ 79 ] By the time Roxanne stood up from her seated position, she had demonstrated a level of agitation that was palpable. I find, however, that her level of agitation did not warrant the use of force to the degree used by Adlard when arresting Roxanne. Adlard is therefore unable to establish on a balance of probabilities that the degree of force used was necessary. He is unable to satisfy the third part of the Wilson test. [ 80 ] In

summary, I find that the force used by Adlard at the time of Roxanne’s arrest was excessive; it was not proportional, necessary, or reasonable. [ 81 ] For Roxanne’s claim based on excessive use of force to succeed, she must establish both that excessive force was used and that the excessive force used resulted in injury ( Wilson , at para. 69 ). [ 82 ] Medical records filed as exhibits confirm that subsequent to August 23, 2008 Roxanne was diagnosed with fractures of two bones in her wrist.

The Defendants did not lead any medical evidence to dispute that the fractures of the bones in Roxanne’s wrist were caused by the manner in which she was physically handled at the time of the arrest and/or by the application later in the day of the TRD (temporary restraining device). The degree of force used when the TRD was applied is discussed in part (d), below. [ 83 ] Roxanne also testified that, as a result of being taken to the ground by Adlard, she suffered cuts and scrapes to the lower portion of her legs.

She noticed the cuts and scrapes upon being placed in the back seat of the cruiser. [ 84 ] I accept Roxanne’s evidence that during the arrest she experienced a high level of pain in her wrist and that she received the cuts and scrapes to the lower portion of her legs. I find that the use of excessive force by Adlard during the arrest (

a) caused or contributed to the fracture of one or two bones in Roxanne’s wrist, and (

b) resulted in abrasions to the lower portion of Roxanne’s legs. Those injuries form part of the assessment of damages discussed below under Issue No. 6. ▪ Cybulski’s Actions [ 85 ] Cybulski testified that Roxanne resisted arrest by grabbing Adlard’s arm when he attempted to handcuff Roxanne. Cybulski stepped in to assist Adlard at that time. Cybulski’s evidence was that there was a struggle and the three individuals ended up on the ground. None of Roxanne, Adlard, or Cybulski gave any evidence as to any use of force by Cybulski during the struggle. [ 86 ] There is no evidence to support a conclusion that Cybulski used excessive force when she assisted Adlard at the home.

c) At the Cruisers

▪ Adlard’s Actions [ 87 ] Following the arrest, Adlard and Cybulski took Roxanne to Adlard’s cruiser. Roxanne’s evidence was that, once she was at the cruiser, Adlard banged her head three times on the hood. Adlard denies doing so. Cybulski testified that she did not see Adlard do so. Cybulski also testified that when Roxanne was inside the cruiser Roxanne banged her head against the partition between the front and back seats. [ 88 ] I find Cybulski to be a credible witness. She did not tailor her evidence to match or support Adlard’s version of events at the home.

Roxanne banging her head against the partition is consistent with other undisputed aspects of Roxanne’s conduct while in the first cruiser, such as kicking out the glass of the passenger and driver’s side rear windows. For those reasons, with respect to the events upon arrival at Adlard’s cruiser, I prefer Adlard’s and Cybulski’s evidence over Roxanne’s. [ 89 ] I find that Adlard did not strike Roxanne’s head against the hood. [ 90 ] Roxanne alleges that as a result of her head being banged on the cruiser she suffered a black eye.

The assessment of damages below therefore does not take a black eye into account. ▪ Transfer from First to Second Cruiser [ 91 ] Roxanne testified that, when she was transferred from the first to the second cruiser, she remained in handcuffs with her legs bound together at the ankles by flex cuffs. The cuffs were placed around Roxanne’s ankles to prevent her from continuing to use her legs and feet, as she did to break the windows of the first cruiser. [ 92 ] Roxanne’s evidence was that the officers who carried her from the first to the second cruiser deliberately dropped her to the ground.

The officers on the scene at that time were Adlard, Cybulski, Shore, and Virgin. [ 93 ] Neither Adlard nor Cybulski has a specific recollection of the transfer. Shore recalls that when transferring Roxanne, the officers travelled across a grassy area. Virgin testified that Roxanne had to be carried between cruisers because she was unable to move on her own. He does not otherwise have a specific recollection of the transfer. [ 94 ] Virgin testified that he observed cuts to Roxanne’s ankles and feet and an abrasion on her shoulder before she was removed from the first cruiser.

He described Roxanne as very uncooperative, aggressive, and out of control when she was in the first cruiser. Virgin’s description of Roxanne’s condition and behaviour is consistent with Roxanne having kicked out two windows of the first cruiser. [ 95 ] Virgin’s involvement with Roxanne was restricted to the transfer between cruisers and to delivering Roxanne’s personal property (purse and footwear) to the cell block. He answered questions posed of him directly, whether the questions were posed during examination-in-chief or in cross-examination. He did not hesitate in answering questions.

Even though he described Roxanne as uncooperative, et cetera , he did not appear to be exaggerating or embellishing the situation. I accept Virgin’s evidence as to Roxanne’s behaviour when in the first and second cruisers. [ 96 ] Roxanne’s level of agitation was such that, while lying prone on the back seat of the first cruiser (before her legs and ankles were restrained), she was able to kick out the two rear windows of the cruiser.

There is no evidence that her level of agitation decreased after she was placed in flex cuffs and transferred from the first to the second cruiser. [ 97 ] Given Roxanne’s level of agitation by the time she was being transferred between cruisers, I find that her memory of that portion of the afternoon is unreliable. It is possible that Roxanne’s agitation and movement while being transferred resulted in (

a) the officers having difficulty maintaining control of her, and (

b) portions of her body coming in contact with the ground during the transfer. [ 98 ] Roxanne has not established that any one or more of the officers transferring her between the two cruisers deliberately dropped her on the ground.

d) At the Police Station – Application of the TRD ▪ Marcil [ 99 ] Upon Roxanne’s arrival at the police station, Cybulski and Morris removed Roxanne from the cruiser, took her to the cell block area, and placed her face down on the floor. Roxanne was then searched. [ 100 ] At the conclusion of the search Roxanne was still lying on the ground. The TRD was applied by Marcil at that time. Roxanne testified that she believes a bone in her wrist was broken during the application of the temporary restraining device (“TRD”).

Her belief in that regard is based on an excruciating level of pain experienced as Marcil tightened the device and used it to pull up on her arms. [ 101 ] Marcil was required to refresh his memory of the events of August 23, 2008 by reviewing his IAR. He acknowledged that he has only a very vague recollection of Roxanne and the application of the TRD. [ 102 ] Marcil is well over six feet tall and appears to be a physically strong individual.

He has an imposing presence. [ 103 ] Marcil was clear in his evidence as to when the TRD is to be used: “…when someone who comes into our custody is being aggressive .” I emphasize Marcil’s use of the present tense. He made no reference to an offender’s past behaviour as a reason to use the TRD. Marcil also testified that the purpose of the TRD is to keep an offender from attacking anyone. [ 104 ] I consider Marcil’s use of the TRD in light of the three-part Wilson test:

a) There is no evidence that Roxanne was being aggressive or that she was about to attack someone once she arrived at the police

station. Therefore, based on Marcil’s evidence, the criteria for the use of the TRD were not met. I find that Marcil did not act inaccordance with the applicable internal policy for the use of the TRD;

b) For the reasons set out immediately above, I find that Marcil was not acting on reasonable grounds when he used the TRD; and

c) I accept Roxanne’s evidence as to the level of pain that she experienced when the TRD was applied. I find that (

a) the force usedby Marcil in the application of the TRD was not proportional, necessary, or reasonable, and (

b) caused or contributed to the fracture of atleast one bone in Roxanne’s wrist. [105] In

summary, I find that Marcil (

a) used excessive force in the application of the TRD, and (

b) is unable to rely on

section 25 ofthe Code in defence of this aspect of the claim against him. When assessing the damages to which Roxanne is entitled, I include thefracture of two bones in her wrist. Issue No. 3 - Were any of the individual defendants negligent in the manner in which they carried out their investigation of theevents of the afternoon of August 23, 2008?

a) The Standard of Care [106] The standard of care required of a police officer carrying out an investigation is that of “a reasonable police officer in all thecircumstances”. The situation may include urgency; there may be deficiencies of information; and neither perfection, nor even theoptimum, when judged from hindsight, is required (see Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41,[2007] 3 S.C.R. 129, at paras. 68, 73). [107] An investigation has a number of stages. The conduct of a reasonable police officer may vary depending on (

a) the stage of theinvestigation in which he or she is involved, and (

b) the legal considerations (495793 Ontario Ltd. v. Barclay, 2016 ONCA 656 ,2006 ONCA 656, 132 O.R. (3d) 241, at para. 48). [108] Roxanne relied on the decision of the trial judge in Barclay. That decision was overturned by the Court of Appeal in September2016, a number of months after closing argument in the matter before me. The Court of Appeal concluded that the trial judge erredbecause she determined the applicable standard of care without the benefit of expert evidence related to the particular type ofinvestigation carried out by the police. [109] When is expert evidence as to the standard of care required in cases of professional negligence?

b) Expert Evidence as to the Standard of Care [110] As identified by the Court of Appeal in Barclay, “[t]he general rule is that the standard of care of a professional, such as a policeofficer, will require expert evidence” (at para. 53). There are, however, two exceptions to the general rule. [111] The first is for “nontechnical matters within the knowledge and experience of the ordinary person” (Barclay, at para. 57). Thesecond is when the impugned conduct of the defendant is so egregious that it is obvious that their conduct has fallen below the standardof care.

In that circumstance, it is not necessary for the trier of fact to know with precision the parameters of the standard of care (seeKrawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 508, at para. 135, leave to appeal to SCC refused, 34359 (December 8, 2011)). [112] The investigation on August 23, 2008 had a number of stages including (

a) the investigation of the situation at the home, and(

b) West’s review of the information received from the four officers who attended at the home and his decision to charge Roxanne withfour offences. Did either stage of the investigation fall within one of the two exceptions to the general rule that expert evidence as to thestandard of conduct of the officers, as professionals, is required? ▪ Investigation at the Home [113] Roxanne alleges that Adlard and Cybulski were negligent in their investigation because they failed to recognize (

a) Roxanne’sright to remain at her residence, (

b) that there were no reasonable and probable grounds to arrest Roxanne, and (

c) there was no evidencesuggesting that Roxanne was involved in any criminal activity at the time of the arrest. I have already made findings that Adlard failed torecognize each of those three things. Was that failure negligent? [114] Cybulski described the situation to which she and Adlard responded as “removal of an unwanted person”. Nothing thatoccurred prior to the arrest elevated the nature of the call to a technical or specialized one.

The matter was nontechnical and within theknowledge and experience of an ordinary person. [115] I find that the call to which Adlard responded falls within the first exception set out in Krawchuk. Therefore, expert evidence isnot required in order to determine the standard of care required of Adlard and whether he was negligent in his investigation of thesituation up until the time of arrest. [116] The standard of care required of Adlard was that of “a reasonable police officer in all the circumstances.” (Hill, at para. 68). The reasonable police officer was Cybulski.

Based on her evidence, I find that the standard of care is the measured approach she wouldhave taken had the call been hers to manage.

That approach included, if necessary, talking the situation out over a longer period of timethan that taken by Adlard to speak with Roxanne and Morgan. [117] I find that Adlard’s failure to take a measured approach and his decision to take a forceful, if not confrontational, approach aresuch that his conduct fell below the standard of care. [118] For Roxanne’s claim against Adlard on the basis of negligent investigation to succeed, she must also establish a causalconnection between the breach of the standard of care and the compensable damages suffered. The applicable test is the ‘but for’ test:

“If, on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of [Adlard], thenthe causation requirement is met” (Hill, at para. 93). [119] I find that as a result of Adlard’s negligence in handling the investigation, the situation escalated and ended with Roxanne’sarrest for assault. That arrest led to the series of events that transpired throughout the balance of the day on August 23 and into the earlymorning hours on August 24, 2008, when Roxanne was released from the Ottawa police station.

I am satisfied that there is a causalconnection between Adlard’s negligence in his investigation of the situation at the home and the compensatory damages suffered. [120] Cybulski was the second officer to respond to the call. Her evidence that the call was Adlard’s to manage is uncontradicted. [121] The standard of care of required of Cybulski as the second officer on the call does not fall within either of the two Krawchukexceptions to the general rule. To determine whether Cybulski’s conduct fell below the standard of care, evidence is required as to: 1.

The policy or practice of the OPS with respect to the second officer on a call and when, if at all, the second officer is entitled and/orauthorized to override the first officer; and 2. How that policy or practice compares to those of other police forces. [122] The existence and/or contents of such practice or policy are not within the skill and knowledge of an ordinary person. Withoutany evidence as to the practice and policy of the OPS with respect to second officers on a call, I am unable to determine whetherCybulski’s conduct met the standard of care.

In addition, I find that Cybulski’s conduct was not so egregious that it is obvious that herconduct fell below the standard of care. [123] As a result, in the absence of expert evidence, the claim against Cybulski based in negligent investigation must fail. ▪ West’s Investigation [124] Roxanne alleges that West was negligent in his investigation because he failed to recognize that the four officers who preparedthe IARs provided false information and/or withheld exculpatory information.

Roxanne also alleges that West failed to recognize thatthe four officers conducted themselves in that manner so as to punish Roxanne and shield themselves from scrutiny, discipline, orliability for their respective actions. [125] As of 2008, West had been with the OPS for over 20 years. In August 2008, he was a Detective working in the Partner AssaultUnit. [126] West’s evidence as to his investigation and his interaction with Roxanne was as follows: • He reviewed the IARs submitted to him by Adlard, Cybulski, Shore, and Virgin.

He did not speak with any of the officers. • Based on his review of the IARs, he prepared a Promise to Appear (“PTA”) setting out the four charges. The PTA requiredRoxanne to attend in Court for a first appearance and to return to the Police Station for identification purposes. • Based also on the contents of the IARs, West prepared an Undertaking and Non-Communication Order (“NCO”).

The NCOprohibited Roxanne from speaking with Morgan and from being within 500 metres of Morgan’s residence, except to return to the home,escorted by a member of the OPS, to retrieve her personal belongings. • Both the PTA and Undertaking/NCO were prepared before West went to the cell block area to speak with Roxanne. • West was aware, before speaking with Roxanne, that no one had interviewed her to obtain her version of the events. He had nointention of interviewing Roxanne and did not do so. He spoke with Roxanne for approximately seven minutes.

He explained thecharges and that Roxanne would be required to sign the PTA and the Undertaking/NCO. • West’s notes of the conversation with Roxanne consist of eight lines in his notebook. [127] The IARs of each of the four officers were not introduced as evidence at trial. There is no evidence as to the contents of theIARs prepared by Cybulski and Virgin. There is limited evidence as to the contents of the IARs prepared by Adlard and Shore. [128] There is no evidence as to West’s historical working relationship with any one of Adlard, Cybulski, Shore, and Virgin.

There isinsufficient evidence to support a finding that, based on his historical working relationship with any one or more of the officers and/or thecontents of the IARs, it would have been reasonable for West to conclude that the officers were motivated by self-protection whencompleting their respective IARs.

Nor is there sufficient evidence to support a finding that the standard of care required West to reachsuch a conclusion. [129] Roxanne submits that the manner in which West carried out his investigation amounts to “indifference to the consequences oflaying the charge[s] and [falls] short of even the rudimentary steps which might have been taken to establish reasonable and probablegrounds.” (see, for example, Beckstead v.

Ottawa (City) Chief of Police (1995), (ON SC), 37 O.R. (3d) 64 (Gen.Div.), at pp. 67–68, aff’d (1997), 37 O.R. (2d) 62 (C.A.)). [130] Beckstead is distinguishable on its facts for a number of reasons. In that case, the charge laid was fraud with respect to use of acredit card to remove money from a bank account. The investigating officer spoke with the accused for 20 minutes and never met faceto face with the complainant.

In support of his conclusion that the accused was the individual shown in video photographs fromsurveillance equipment at the bank, the investigating officer made entirely unfounded assumptions about a change in appearance of theaccused. [131] The type of investigation carried out in Beckstead was nontechnical and within the skill and knowledge of an ordinary person.

No expert evidence was led before the trial judge; none was required. [ 132 ] There is no evidence before me as to what was required of West in carrying out his investigation and in deciding to lay four charges against Roxanne. Did the OPS have a policy with respect to laying charges based solely on IARs, without interviewing the officers involved and/or without interviewing the offender? If so, was the policy of a technical or a nontechnical nature? The existence and/or contents of such a policy are not within the skill and knowledge of an ordinary person.

I am unable to conclude that the investigation carried out by West was nontechnical in nature. [ 133 ] In the absence of evidence as to the internal practices, if not policies, of the OPS with respect to investigations of this kind, I am unable to determine whether West’s conduct fell below the standard of care.

Nor am I able to conclude that West’s conduct was so egregious that it is obvious that his conduct fell below the standard of care. [ 134 ] The decision of the Crown to ultimately withdraw the charges because of a lack of reasonable chance of conviction allows for unwarranted hindsight; that is not the test to be applied when considering an allegation of negligent investigation. [ 135 ] I find that the type of investigation carried out by West does not fall within either of the two exceptions identified in Krawchuk .

Therefore expert evidence is required with respect to the standard of care required of a detective carrying out an investigation of the kind carried out by West. [ 136 ] The claim against West based in negligent investigation fails. Issue No. 4 – Was the conduct of one or more of the defendants in breach of Roxanne Carr’s rights pursuant to

section 7 , 8 , or 9 of the Charter ? [ 137 ] Roxanne asserts that her rights pursuant to one or more of three sections of the Charter were breached: • The right to life, liberty and security of the person (section 7); • The right to be secure against unreasonable search or seizure (section 8); and • The right not to be arbitrarily detained or imprisoned (section 9).

a) Section 7 – Right to life, liberty and security of the person ▪ Excessive Use of Force [ 138 ] There is overlap between the claim based on use of excessive force and the claim based on a breach of Roxanne’s

section 7 Charter rights. First, there is overlap in the evidence relevant to each of the claims. Second, a finding that excessive force was used may support a further finding that Roxanne’s rights pursuant to

section 7 of the Charter were breached (see , for example, Nasogaluak , at para. 38 .) [ 139 ] In addressing this aspect of Roxanne’s claim, I rely on the findings made with respect to Issue No. 2. I also take into consideration Roxanne’s evidence (

a) as the extent to which she attempted to communicate to the officers that she was, by reason of their actions, experiencing physical pain, and (

b) that the officers ignored the information she communicated. I accept Roxanne’s evidence in that regard. [ 140 ] For example, Roxanne testified that at the time of the arrest she told Adlard that she was experiencing extreme pain in her wrist. Roxanne’s evidence was that Adlard paid no heed to that information. Roxanne also testified that Marcil persisted with the application and use of the TRD despite Roxanne’s complaints of pain in her wrist. [ 141 ] I find that the excessive use of force as found above under Issue No. 2 amounts to a breach of Roxanne’s

section 7 right to security of the person. I also find that the breach was not committed in accordance with any principle of fundamental justice. ▪ Left Naked in Cell for Over Two Hours Basis for removal of clothing [ 142 ] The Cell Check Report entry for 4:10 p.m. states that Roxanne “tried to tied [ sic ] shirt around neck.” When that observation was made, four officers went to Roxanne’s cell and conducted a search that ended in Roxanne’s clothes being removed. The officers were Marcil, Desjourdy, Morris, and Cybulski. [ 143 ] There are inconsistencies in the evidence of each of the officers as to (

a) who originally made the observation, (

b) how the observation was communicated, (

c) in what state Roxanne was found when the officers arrived at the holding cell, and (

d) the specifics of what occurred in the cell. [ 144 ] For example, Morris testified that Marcil alerted the others that Roxanne was attempting to tie herself with her clothing. Morris was unable to recall if Marcil was in front of the monitors when he gave that alert. Marcil denied giving the alert. Cybulski was uncertain as to who gave the alert. She testified that Desjourdy may have issued the alert that “someone’s hanging”. [ 145 ] Marcil testified that he was the first officer to the cell. He had the keys to open the door to the cell.

Marcil and Morris both testified that when they arrived at the cell Roxanne was standing at the back of it. The evidence of the officers varied from Roxanne having an item of clothing tied around her neck to Roxanne holding the

article of clothing over her head. Morris was unsure whether the

article of clothing was Roxanne’s top or pants. Marcil thought the

article of clothing was Roxanne’s top. [ 146 ] Marcil acknowledged that in his IAR he recorded that Roxanne attempted to tie herself to the cell door with an

article of

clothing. However, he was unable to say when he made that observation. He testified that he would not have been able to open the cell door if Roxanne had attempted to tie herself to the door with an

article of clothing. [ 147 ] Desjourdy acknowledged that none of the video footage for Roxanne’s holding cell shows an

article of clothing tied around the bars of the cell door. [ 148 ] The officers acknowledged that once the alert was issued they made their way quickly to Roxanne’s cell. The video footage shows Marcil running to the cell. Desjourdy described the officers as getting to the cell at a “fast pace”. None of the officers provided an explanation as to how it would have been possible for Roxanne to untie an

article of clothing from the bars of the cell door and move to the back of the cell—all in the short time that it took the officers to get to the cell. [ 149 ] Each of the officers recorded notes and/or prepared an IAR with respect to their involvement with Roxanne. One purpose served by officers’ notes and IARs is to assist officers in refreshing their memory when giving evidence in court. That they would seek to refresh their memory is not surprising, given the number of individuals with whom they deal over time in the cell block.

Despite having prepared these documents and having the documents available to refresh their memory, the officers were inconsistent in their evidence regarding the event that led to the alert being called. They were also inconsistent in their evidence as to how Roxanne’s clothing was removed. [ 150 ] Item D21 of the “OPS Cell Block Policy and Procedure” prescribes the level of monitoring required of a person who “is/may be suicidal”.

Such an individual “shall be continuously monitored on video in a private cell and personally viewed at least every fifteen minutes.” The Officer in Charge is also mandated to continuously monitor suicidal prisoners (Item G10). There is no evidence that Roxanne was monitored in that manner. If the officers truly believed that Roxanne posed a danger to herself in that she was suicidal, they were required to monitor her more extensively than they did following the incident in the cell and the removal of her clothing. [ 151 ] Roxanne denies that she at any time attempted to either tie an

article of her clothing around her neck or to the door. The video footage of the search carried out when Roxanne arrived at the cell block area shows that she was entirely passive. In the video footage of Marcil leading Roxanne to her cell, she is compliant. By the time Roxanne was placed in her cell, she had suffered two broken bones in her wrist. [ 152 ] Given (

a) the inconsistencies in the evidence of the officers as to what gave rise to the alert being called, (

b) the lack of adherence, following the removal of Roxanne’s clothing, to Item D21 of the “OPS Cell Block Policy and Procedure”, (

c) Roxanne’s passive and compliant behaviour upon arrival at the police station, and (

d) Roxanne’s denial that she attempted to tie an

article of her clothing around her neck or the cell block door, I find that no event occurred that gave rise to reasonable grounds for the officers to remove Roxanne’s clothing. [ 153 ] In

summary, I find that the removal of Roxanne’s clothing was a breach of her

section 7 right to security of the person. I also find that the breach of Roxanne’s

section 7 right was not carried out in accordance with the principles of fundamental justice. Two hours without a suicide suit [ 154 ] After Roxanne’s clothes were removed she was left naked in the holding cell for over two hours. The evidence of what occurred in that two-hour period includes the video footage, the Cell Check Report, the testimony of Morris and Desjourdy, and Roxanne’s evidence.

Desjourdy was the officer in charge of the cell block that afternoon and evening. [ 155 ] In the slightly more than two hours that followed the removal of Roxanne’s clothing, the following occurred: • Roxanne was given a garment to wear at 5:13 p.m. The garment was a suicide suit, intended to provide coverage while eliminating the opportunity for self-harm. Roxanne was unable to don the garment and told Morris she was unable to do so. Morris responded by telling Roxanne (

a) to throw the garment into the hallway adjacent to the cell, and (

b) that she would be provided with another garment. Roxanne threw the garment into the hallway within a matter of minutes after receiving it. • Cell block officers patrolled the hallways and checked the cells approximately every 30 minutes.

They also observed the cells using the monitors for the closed circuit cameras. • Morris made an entry in the Cell Check Report for 5:46 p.m. identifying that Roxanne had thrown the garment into the hallway. • It was not until 8:03 p.m. that Morris provided Roxanne with another garment (a larger suicide suit). [ 156 ] I find that neither Morris nor Desjourdy gave a reasonable explanation for the delay of over two hours in taking steps to ensure that Roxanne was provided with a second suicide suit. [ 157 ] The “OPS Cell Block Policy and Procedure” was entered as evidence.

Item D1 from that document states: The Ottawa Carleton Regional Police Service affirms the fundamental rights of all prisoners to be treated with fairness and respect at all time in accordance with the Charter of Rights and freedoms [ sic ] and the Criminal Code .

This includes the right to counsel, humane treatment , and immediate medical attention where required. [Emphasis added.] [ 158 ] In addition to this general affirmation, Item F29 of the document requires that the cell block attendants “[e]nsure that an adequate supply of prisoner smocks and footwear is maintained.” Item F30 makes is mandatory for the cell block attendants to provide a prisoner smock to a prisoner who is “believed to be suicidal.” [ 159 ] With respect to Roxanne being left naked in a holding cell for more than two hours, I find as follows: • The conduct of Morris and Desjourdy fell below the standard expected of them on the basis of the “OPS Cell Block Policy and

Procedure” document; • Being left naked in the holding cell for more than two hours, was a breach of Roxanne’s right to security of the person; and • The breach of Roxanne’s

section 7 right was not carried out in accordance with the principles of fundamental justice.

b) Section 8 – Right to be secure against unreasonable search or seizure [160] For a search to be reasonable under

section 8 of the Charter (

a) it must be authorized by law, (

b) the authorizing law must itselfbe reasonable, and (

c) the search must be conducted in a reasonable manner (R. v. Collins, (SCC), [1987] 1 S.C.R. 265,at p. 278; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 16). [161] Roxanne was the subject of a search upon arrival at the police station. That search was one of a series of events that followedwhat I have found to be an arrest made without authority. As a result, the search was not authorized by law and was a breach ofRoxanne’s

section 8 right to be secure against unreasonable search.

c) Section 9 – Right not to be arbitrarily detained or imprisoned [162] Roxanne asserts that she was arbitrarily detained when the police officers arrived at the home. I accept Roxanne’s evidencethat she believed she was not free to leave the yard except as directed by Adlard. She did not attempt to enter the home except when toldby Adlard to go inside and retrieve her personal belongings so that she could leave; the only time she moved was to do so. I find thatRoxanne was detained prior to being arrested. [163] Roxanne’s detention falls in the category of an investigative detention. In R. v.

Mann, 2004 SCC 52, [2004] S.C.R. 59, at paras.34 and 35, the Supreme Court of Canada established a number of guiding principles with respect to the power of the police to detain forinvestigative purposes. [164] Based on Adlard’s evidence, he recognized that he was not investigating any recent or ongoing criminal offence. He wasresponding to a “dispute/disturbance” call.

I find that he was carrying out his common law duty of preserving the peace (Mann, at para.26.) I find that both subjectively and objectively Adlard’s decision to handle the situation as forcefully, if not confrontationally, as he didwas neither reasonable nor necessary to fulfil his duty at the time. [165] In

summary, I find that Roxanne’s

section 9 right not to be arbitrarily detained was breached. Issue No. 5 – Was the Ottawa Police Services Board negligent because it failed to provide its officers with reasonable training,supervision, and oversight? [166] No expert evidence was called as to the standard of care required of the Ottawa Police Services Board (the “Board”) withrespect to training, supervision, and oversight of its officers.

I find, however, that this aspect of Roxanne’s claim does not fall withineither of the two exceptions set out in Krawchuk. [167] The conduct required of the Board in providing training, supervision, and oversight to its officers is not nontechnical. Anordinary person would not be expected to have knowledge of the requisite conduct. The evidence does not establish conduct on the partof the Board so egregious that it is obvious that the Board’s conduct fell short of the standard of care.

Evidence is required of the preciseparameters of the standard of care. [168] Thus, in the absence of expert evidence on the issue of standard of care this aspect of Roxanne’s claim must fail. [169] I turn to Roxanne’s claim for punitive damages on the basis of the failure of the Board to provide training, supervision, andoversight to its officers with respect to an individual’s Charter rights. In cross-examination, the officers were questioned as to theirknowledge of a system, if any, by which the OPS (

a) tracks findings of Charter breaches made against its officers in criminalproceedings, (

b) informs officers of such findings, and (

c) attempts to address those breaches in an effort to prevent future Charterbreaches. The officers were unaware of any formal system in that regard in place at the OPS.

There was otherwise no evidence led withrespect to the existence of lack of a system in that regard at the OPS. [170] In closing argument, the assertion made was that, as a result of the lack of such a system, an officer whose conduct is found tohave been in breach of an individual’s Charter rights will not be informed of that finding or receive training so as to avoid such breachesin the future. [171] For the following reasons, Roxanne’s claim for punitive damages on the basis of the failure of the OPS to train, supervise, andoversee the conduct of its officers with respect to Charter breaches fails: • First, I am not satisfied that such a system is lacking at the OPS.

The only evidence before me is that the officers who testifiedwere unaware of the existence of such a system. • Second, by reason of the lack of expert evidence with respect to the standard required of the Board, I am unable to find that theBoard was negligent with respect to training, supervision, and oversight of Charter breaches. • Third, there is no evidence before me as to any causal connection between any deficiency in the training, supervision, andoversight on the part of the OPS as relates to Charter breaches and the individual officers named as defendants in this action.

Issue No. 6 – Assessment of Damages

a) General damages

[172] Roxanne is entitled to an award of general damages based on my findings that she was the subject of an unlawful arrest,unlawful imprisonment, the use of excessive force, and negligent investigation. [173] The evidence in support of Roxanne’s claim for general damages is found in Roxanne’s testimony, the evidence of her motherMary Susan Cardill, the evidence (both oral and documentary) of psychotherapist Sandra Flear, and a small number of hospital andmedical records filed pursuant to

section 35 of the Evidence Act, R.S.O. 1990, c. E.23. [174] Ms. Flear was the only health-care professional to testify at trial. No medical professional testified. No expert opinionevidence was led. [175] The defendants did not call any witnesses to provide medical or healthcare evidence in response to the claim for damages. [176] The medical and healthcare records filed are replete with hearsay. In assessing the general and all other heads of damages towhich Roxanne is entitled, I rely only on those portions of the records filed that are admissible as evidence pursuant to the businessrecords

section of the Evidence Act. ▪ Physical Injuries [177] Roxanne seeks compensation for the following physical injuries: A black/swollen eye: The photographs taken of the left side of Roxanne’s face and entered as exhibits are of a poor quality. Based onthe photographs, it is difficult to assess the extent of the black and/or swollen eye that Roxanne alleges she suffered. In any event, forthe reasons set out above, I do not include a black and/or swollen eye in the assessment of general, non-pecuniary damages.

Two fractured bones in wrist: There is no evidence that prior to August 23, 2008, Roxanne experienced any physical problems withher right wrist. I have already found that on August 23, 2008 Roxanne suffered fractures of two bones in her right wrist. As a result ofthe fractures, Roxanne does not have full range of motion in her wrist and there is a bump on the outside of her right arm, slightly abovethe wrist. There is no evidence that the restricted range of motion has any impact on the function of the wrist. Roxanne was advised inthe fall of 2008 to attend physiotherapy for her right wrist.

She did not do so because she was too afraid to leave the home where she wasstaying at the time. There is no evidence that if Roxanne had attended physiotherapy she would have achieved a better recovery from thefractures. Burn to left hand: The photographs taken in the days following the accident show a blister, in the form of a bubble, at the base ofRoxanne’s left thumb towards the inside of her arm. Roxanne’s evidence was that she suffered the burn because of the extremely hotcondition inside the second cruiser. The evidence as to the condition of the second cruiser is contradictory.

I am unable to find on abalance of probabilities that the condition of the second cruiser was such that it resulted in a burn to Roxanne’s left thumb. Abrasions and bruising: Roxanne suffered abrasions to her head, right shoulder, lower legs, and the top of her right foot. The bruisingand abrasions resolved in the ordinary course. I have already found that the abrasions to the legs occurred at the time of the arrest, whenRoxanne was taken to the ground and a struggle ensued. I am satisfied that the abrasions to the head, right shoulder, and foot are theresult of the arrest and the struggle at that time.

Soft tissue injuries to both shoulders: Roxanne experienced pain in her shoulders following August 23, 2008. She saw Dr. MarkAubry for a consultation in late 2013 and for a pre-surgical appointment in early 2014. Dr. Aubry’s clinical notes and records indicatethat he diagnosed Roxanne with rotator cuff tendinitis in one shoulder. The report of an MRI done in late 2013 identifies “[m]inimal ACjoint degenerative change.

Degradation anatomical detail from motion artifact.” I am not satisfied that there is a causal connectionbetween the conditions diagnosed five years after August 23, 2008 and the events on that date. There is insufficient evidence to supporta finding that the problems experienced by Roxanne with her shoulders were, on a balance of probabilities, caused or contributed to bythe events of August 23, 2008. Lipoma in right scapula: Dr. Aubry’s clinical notes and records indicate that he also diagnosed Roxanne with a lipoma in the area ofher right scapula.

Once again, the diagnosis was made more than five years after August 2008. The lipoma was eventually surgicallyremoved. There is insufficient evidence to support a finding that the lipoma is the result of the events of August 23, 2008. [178] In

summary, I find that the physical injuries for which Roxanne is entitled to compensation are the fractures of the two bones inher right wrist and the bruising and abrasions to her head, right shoulder, lower legs, and top of the right foot. [179] A number of the injuries for which Roxanne is entitled to compensation were suffered at the time of and as a result of thestruggle during the arrest—an arrest that I have found was made without authority. Roxanne was entitled to resist the unlawful arrest,even though it was being made by a police officer (R. v.

Plummer (2006), (ON CA), 83 O.R. (3d) 528 (C.A.), atpara. 48.) The resistance included Roxanne’s efforts to grab Adlard’s arm, the end result of which was that one of Adlard’s arms wasscratched. I find that Roxanne’s conduct in resisting the arrest was reasonable in the circumstances. I have not reduced the assessmentof general non-pecuniary damages because of Roxanne’s conduct at the time of the arrest. ▪ Psychological Injuries [180] Roxanne also seeks compensation for psychological injuries including insomnia, anxiety, and post-traumatic stress disorder.

Psychological health prior to August 23, 2008 [181] Roxanne’s health and well-being prior to August 23, 2008 are relevant to the assessment of damages, in particular with respectto the psychological injuries Roxanne alleges she suffered. Based on Roxanne’s evidence and the admissible evidence from the recordsfiled, I find as follows:

• During her childhood years, Roxanne was under the auspices of the Children’s Aid Society. Before she was adopted by the Carr family, Roxanne lived in foster care. In one of the multiple foster homes, she was the victim of physical and sexual abuse; • In 2005 and 2006, Roxanne received treatment from a psychiatrist. The treatment included counselling and a prescription for an anti-depressant; • In December 2005, Roxanne was the victim of an assault. The assault was the result of a domestic dispute involving Roxanne’s roommate and the roommate’s former partner. Roxanne was struck on the head with a baseball bat.

As a result of the blow to the head, Roxanne suffered from headaches. She remained off work for a number of months following the assault; and • Following the assault in December 2005, Roxanne continued under the care of a psychiatrist and received treatment for depression, anxiety, and borderline personality disorder. [ 182 ] Roxanne testified that following the baseball bat assault she was diagnosed as suffering from seizures. Her evidence was that (

a) the seizures were precipitated by stress and resulted in an inability to speak, and (

b) by the summer of 2008 she had not experienced a seizure for a number of months. [ 183 ] Ms. Cardill described her daughter’s condition following the December 2005 assault: Roxanne suffered from headaches, was untrusting of strangers, and became apprehensive. Ms. Cardill testified that she witnessed Roxanne have at least one seizure. She observed Roxanne’s eyes close for approximately 30 minutes and it appeared as if Roxanne had fallen asleep. According to Ms.

Cardill, the seizures improved over time. [ 184 ] Roxanne’s condition following the baseball bat assault was investigated by neuromuscular specialist, Dr. Corrin. In December 2006, Dr. Corrin reported to Roxanne’s family physician that the “diagnostic question” was whether Roxanne’s persisting complaints were “seizure versus functional”. The medical records do not provide any evidence of the answer to the “diagnostic question”. [ 185 ] I am unable to conclude on a balance of probabilities that Roxanne was diagnosed with a seizure condition prior to August 23, 2008.

Psychological health subsequent to August 23, 2008 [ 186 ] Roxanne’s evidence was that as a result of the events on August 2008 she developed and continues to suffer from post-traumatic stress disorder (“PTSD”). She testified that the condition was diagnosed in 2009, following an emergency department visit to the Ottawa Hospital. The records of that attendance were not filed as evidence.

There is, however, an entry in the Ministry of Health De-Coded List of Services for an attendance at the Ottawa Hospital on that date. [ 187 ] Roxanne testified that the symptoms of PTSD she experienced and continues to experience include: • The desire to spend time in solitude; • The lack of a social life because of a desire to avoid people, crowds, and noisy environments; • A heightened response to the sound of sirens; • Fear of standing in front of open windows for fear of being shot; • Being more easily startled, including by nearby, sudden movements; and • A general fear of police and, specifically, a concern that she is being followed by either the police or people affiliated with Morgan. [ 188 ] Roxanne testified that, as a result of the PTSD, she was unable to remain in Ottawa.

She initially moved to Brockville and ultimately to Toronto, where she continues to reside. She described leading a solitary life. She manages her PTSD by spending time in nature, exercising, doing yoga, using aromatherapy, and listening to peaceful music. [ 189 ] In 2010, Roxanne began to see psychotherapist, Sandra Flear. Ms. Flear testified and her clinical notes from May 2010 to May 2016 were entered as exhibits at trial. Ms. Flear has been a registered psychotherapist in private practice since 2004. As a psychotherapist, she is a member of a regulated health profession. [ 190 ] Ms.

Flear provides treatment in the areas of relationship therapy, trauma, and anxiety. Her psychotherapist training was with The Toronto Institute for Relational Psychotherapy from 2002 to 2007. In addition to that general training, she took an eight-month course related to the treatment of trauma. [ 191 ] Ms. Flear acknowledged that as a psychotherapist she does not make diagnoses, including that she does not diagnose PTSD. She does, however, treat individuals who have been diagnosed with PTSD. [ 192 ] Ms. Flear testified that it appears to her that Roxanne receives benefit from the counselling sessions.

As of 2016, Roxanne appeared to be more stable and calm than she was when during the early part of the counselling. Roxanne concurred, testifying that there has, since 2009, been improvement in her symptoms. [ 193 ] Ms. Flear anticipates that if Roxanne continues to receive counselling, the symptoms she experiences will decrease but will never be extinguished. Ms. Flear’s recommendation is that Roxanne continue to attend counselling once or twice a year for an indeterminate number of years. [ 194 ] The only medical evidence with respect to Roxanne’s mental health subsequent to August 23, 2008 is a report of Dr.

Wright

dated January 2015. That report was filed as a business record pursuant to

section 35 of the Evidence Act . The report indicates that when Dr. Wright prepared the report she was a psychiatry resident with the Mental Health Clinic at St. Michael’s Hospital in Toronto. A copy of Dr. Wright’s resume is not in evidence. Dr. Wright was not called to testify. [ 195 ] Dr. Wright’s report, like the other documents filed as business records, is replete with hearsay. The admissible evidence from the report includes the following: • Roxanne was referred by her family physician for a psychiatric assessment. Dr. Wright carried out that assessment over two days in January 2015. • Dr.

Wright diagnosed Roxanne as experiencing symptoms “most consistent with a diagnosis of post-traumatic stress disorder, with panic attacks specifier”. • Dr. Wright also identified evidence of schizotypal personality traits that did not appear to be impacting Roxanne’s function and were likely “a normal variant”. • The symptoms of borderline personality disorder/traits may be a form of “complex post-traumatic stress disorder, given the abuse [Roxanne] suffered growing up.” [ 196 ] Without the benefit of a resume for Dr. Wright and oral testimony from her, it is difficult to determine the reliability

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