2003BCSC1158

Before: The = Honourable Mr.=20 Justice S.R. Romilly

Reasons for Judgment

Counsel for the Plaintiff

B.=20 Samuels

K.=20 Bridge

Counsel for the Defendants,

Sergeant Kelly, Constable Prasobsin, Constable Fodor, = Sergeant=20 Gatto and Constable Cope

T.=20 Zworski

Date and Place of Hearing:

July 15,=20 2003

Vancouver,=20 B.C.

NATURE OF THE = APPLICATION

[1] =20 This is an application by the Defendants, Sergeant Kelly = (=93Kelly=94),=20 Constable Prasobsin (=93Prasobsin=94), Constable Fodor=20 (=93Fodor=94),=20 Sergeant Gatto (=93Gatto=94), and=20 Constable Cope (=93Cope=94)=20 (collectively the =93Police=20 Defendants=94) pursuant=20 to Rule 19(24)(a) for an Order striking out the Plaintiff=92s Amended = Statement of=20 Claim as against the Police Defendants on the ground that it discloses = no=20 reasonable claim and dismissing the claim against them.

[2] =20 The Police Defendants claim that no reasonable claim is disclosed = because, at all material times, they were acting in the performance of = their=20 duties as police officers and therefore, the claim against them = personally is=20 statute barred by s. 21 of the Police Act, R.S.B.C. 1996, = c.=20 367.

[3] =20 For the reasons stated below I find that the Police Defendants = cannot=20 rely on s. 21 of the Police Act and as such their = application must=20 fail.

BACKGROUND

[4] =20 The Plaintiff=92s action arises out of events that took place on = August 1,=20 2002, at which time the Plaintiff alleges that he was stopped and then = arrested=20 by members of the Vancouver Police Department (the =93VPD=94) during an = official=20 visit to Vancouver by the Right Honourable Jean Chretien, the Prime = Minister of=20 Canada.

[5] =20 The Plaintiff, Alan Cameron Ward, is a lawyer who has practised = law in or=20 about the City of Vancouver since 1984. He has practised mainly in = the=20 areas of civil litigation and administrative law and has represented = numerous=20 people who have made complaints against members of the VPD and members = of the=20 Royal Canadian Mounted Police (the =93RCMP=94). Several of the = Plaintiff=92s=20 cases, including a public hearing into complaints about RCMP conduct at = APEC =9297=20 and a public hearing into complaints about VPD conduct at the Hyatt = Hotel in=20 December, 1998, have been the subject of widespread media coverage and=20 publicity.

[6] =20 The Plaintiff makes a myriad of claims against the Police = Defendants in=20 his Amended Statement of Claim including claims against the individual = officers=20 for assault, battery, wrongful imprisonment and conversion. He = claims that=20 the actions of the Police Defendants constituted gross negligence and = malicious=20 or wilful misconduct.

RULE 19(24)(a)

[7] =20 To succeed on an application under Rule 19(24)(a), the Police = Defendants=20 must show that it is =93plain and obvious=94 that the Statement of Claim = discloses=20 no reasonable claim: Hunt v. Carey Canada Inc., [1990] 2 = S.C.R.=20 959. No evidence is admissible on an application of this = nature. =20 Instead, the facts alleged in the Statement of Claim are treated as = proven:=20 Hunt, supra; Rule 19(27). It will therefore = be useful=20 for me to canvass the facts as alleged in the Plaintiff=92s Amended = Statement of=20 Claim.

FACTS AS ALLEGED IN THE = AMENDED STATEMENT=20 OF CLAIM

[8] =20 The alleged facts, as extracted from the Amended Statement of = Claim, are=20 as follows:

The Incident of August 1, = 2002

16. On the morning of the 1st = day of=20 August, 2002, the Right Honourable Jean Chretien, the Prime Minister of = Canada,=20 attended at or near the intersection of Taylor and Pender Streets, in = the City=20 of Vancouver, Province of British Columbia to preside over a public = ceremony to=20 officially open a monument known as the =93Millenium Gate=94. The = RCMP and VPD=20 shared the responsibility of providing policing services and security = for the=20 ceremony.

17. The Plaintiff attended the = ceremony as=20 an observer and was the subject of surveillance conducted by members of = the RCMP=20 and VPD.

18. The Plaintiff left the = ceremony at=20 approximately 10:20 a.m. and proceeded on foot in a southerly direction = toward=20 Keefer Street. When the Plaintiff was approximately one block away = from=20 the ceremony, and out of sight, he was accosted by a uniformed peace = officer who=20 requested that the Plaintiff speak to the Defendant Kelly. The = Plaintiff=20 complied with that request.

19. The Defendant Kelly, along = with the=20 Defendant Prasobsin and one other uniformed member of the VPD whose = identity is=20 unknown to the Plaintiff, then grabbed and handcuffed the = Plaintiff. The=20 Plaintiff repeatedly asked whether he was under arrest and repeatedly = requested=20 the opportunity to contact legal counsel by telephone. Kelly = refused to=20 advise the Plaintiff whether he was under arrest, refused the = Plaintiff=92s=20 repeated requests to contact counsel and threatened to charge the = Plaintiff with=20 assaulting a police officer unless the Plaintiff stopped asking = questions. =20 When the Plaintiff attempted to use his personal cellular telephone to = contact=20 counsel, one of the three VPD members seized the telephone.

20. The Defendants Kelly, = Prasobsin and=20 the other VPD member searched the Plaintiff and seized his wallet, keys = and=20 watch. They opened the Plaintiff=92s wallet and found his = driver=92s licence,=20 his business card, and other cards identifying the Plaintiff as a member = of the=20 Law Society of British Columbia, the Canadian Bar Association and the = American=20 Civil Liberties Union. Kelly then used his radio to report his = findings to=20 his colleagues.

21. After concluding these = radio=20 conversations, Kelly, Prasobsin and the other VPD member forcibly moved = the=20 Plaintiff in a southerly direction along Taylor Street and forcibly = pushed him=20 into a VPD vehicle. The Plaintiff, who was still in handcuffs, = offered no=20 resistance.

22. The Defendant Fodor drove = the VPD=20 vehicle in a circuitous route and ultimately arrived at the Jail. = The=20 Plaintiff was left unattended in the parked vehicle outside the Jail for = approximately thirty minutes.

23. When the Plaintiff was = removed from=20 the vehicle and taken into the Jail, he repeatedly requested the = opportunity to=20 contact legal counsel. Those requests were refused. Several = of the=20 Jail staff, whose identities are unknown to the Plaintiff, together with = the=20 Defendant Gatto, then conducted a strip search of the Plaintiff. = The strip=20 search was recorded by a closed-circuit television video = camera.

24. The Plaintiff again = repeatedly=20 requested the opportunity to contact legal counsel and again those = requests were=20 refused. The Plaintiff was then confined in a large jail = cell.

25. After some time passed, = the Plaintiff=20 was granted the opportunity to make a telephone call. He was then = taken to=20 a small jail cell marked =93INTOX=94 and unlawfully and [sic] confined = in solitary=20 confinement until approximately 3:30 p.m. on August 1, 2002, when he was = released without an apology.

26. The Plaintiff was detained = in custody=20 for a total of approximately five hours. He was never charged with = any=20 offence and was never taken before a judge.

27. While the Plaintiff was in = custody,=20 the Defendant Cope conducted a search of city streets for the = Plaintiff=92s=20 automobile, located it, and seized, searched and impounded it in a VPD = garage at=20 342 Alexander Street in the City of Vancouver. Cope undertook = these=20 actions pursuant to a suspicion that there may have been a pie in the = trunk of=20 the automobile.

[9] =20 I will now deal with the Police Defendants=92 claim that the = Amended=20 Statement of Claim discloses no reasonable cause of action against them = on the=20 basis that they cannot be personally liable because of s. 21 of the = Police=20 Act.

IS THE MATTER STATUTE BARRED = PURSUANT TO=20 S. 21 OF THE POLICE ACT?

[10] =20 The Police Defendants submit that, even if all the allegations of = fact in=20 the Amended Statement of Claim are accepted as proven, they cannot be = personally=20 liable to the Plaintiff because of s. 21 of the Police=20 Act.

[11] =20 The relevant parts of s. 21 read as follows:

21(2) No = action for=20 damages lies against a police officer or any other person appointed = under this=20 Act for anything said or done or omitted to be said or done by him or = her in the=20 performance or intended performance of his or her duty or in the = exercise of his=20 or her power or for any alleged neglect or default in the performance or = intended performance of his or her duty or exercised of his or her=20 power.

(3) Subsection (2) does not = provide a=20 defence if

(a) the police officer or other person appointed = under this Act=20 has, in relation to the conduct that is the subject matter of action, = been=20 guilty of dishonesty, gross negligence or malicious or wilful = misconduct,=20 or

(b) the cause=20 of action is libel or slander.

It is clear=20 and apparent from the text of s. 21 that this provision will only assist = the=20 Police Defendants if it can be said that the facts alleged in the = Amended=20 Statement of Claim do not establish gross negligence, or = malicious or=20 wilful misconduct on their part.

[12] =20 I note once again that on an application under Rule 19(24)(a) I = must=20 accept as true the facts alleged in the Amended Statement of = Claim. As=20 such under this motion I must accept that the police did in fact detain, = imprison and strip search the Plaintiff, and seize and search his car=20 arbitrarily and without any legal justification. The Plaintiff=92s = tortious=20 claims in the form of assault, battery, wrongful imprisonment and = conversion are=20 intentional torts and by definition =93wilful=94 acts.

[13] =20 In my view the purpose of s. 21(3)(b) of the Police = Act is=20 to prevent police officers from abusing their power in ways such as = those=20 alleged by the Plaintiff. These alleged actions at a minimum = amount to=20 gross negligence and more likely amount to malicious or wilful = misconduct. =20 Certainly police officers cannot expect to evade personal liability via = s. 21(2)=20 of the Police Act when they are alleged to have engaged in = such=20 behaviour.

[14] =20 In Walkey (Guardian ad litem of) v. Canada (Attorney=20 General), [1997] B.C.J. No. 599 (Q.L.)(S.C.) police officers = were found=20 personally liable and unable to rely on s. 21(2) as a defence for = conduct which,=20 in my view, was far less egregious than that alleged in the case at=20 bar.

[15] =20 As set out above, the Police Defendants are alleged to have been = involved=20 in arresting, imprisoning, and strip searching the Plaintiff, in = addition to=20 seizing and searching his vehicle. The basis for their actions was = a=20 suspicion that the Plaintiff might have had a pie on him that he was = going to=20 throw in the face of the Prime Minister. While I recognize the = importance=20 of protecting our Prime Minister, I also recognize the importance of = protecting=20 the rights of an individual.

[16] =20 From the statements included in the Amended Statement of Claim, = which for=20 the purpose of this application I have to treat as being true, there = would seem=20 to be an irresistible inference that the Police Defendants, all of whom = knew the=20 identity of the Plaintiff and his past history with the police, sought = by their=20 actions to embarrass and punish the Plaintiff. In so doing they = infringed=20 a number of the Plaintiff=92s Charter protected = rights. In=20 this regard, I cannot help but question the purpose of the alleged strip = search=20 of the Plaintiff. Did the police officers really expect to find a = pie=20 hidden beneath the Plaintiff=92s clothes?

[17] =20 Having considered the alleged conduct of the Police Defendants = and taking=20 it to be true as I am required to do in these proceedings, I am unable = to find=20 that the Police Defendants=92 personal liability is statute barred by s. = 21(2) of=20 the Police Act. As such I am unable to find that it = is=20 =93plain and obvious=94 that the Plaintiff=92s Amended Statement of = Claim discloses no=20 reasonable cause of action.

CONCLUSION

[18] =20 The Police Defendants=92 application is dismissed. The = Plaintiff is=20 entitled to costs on this application.

=93S.R. Romilly, J.=94
The Honourable Mr. Justice S.R.=20 Romilly