2007 BCSC 3 Ward v. City of Vancouver

Before: The Honourable Mr. Justice=20 Tysoe

Reasons for=20 Judgment

Counsel for the = Plaintiff:

Brian M. = Samuels

Counsel for the Defendants, = City of=20 Vancouver, Sergeant Kelly, Constable Prasobsin, Constable Fodor, = Sergeant=20 Gatto and Constable Cope:

Tomasz=20 M. Zworski

Counsel for the Defendant, = Her Majesty=20 the Queen in Right of the Province of British=20 Columbia:

J.=20 Edward Gouge, Q.C.,
Bryant A. Mackey and
Karen A.=20 Horsman

Dates and Place of=20 Trial:

November 6 =96 10
and 22, = 2006
Vancouver,=20 B.C.

TABLE OF CONTENTS

Heading

=B6

INTRODUCTION

BACKGROUND

Testimony of Mr. Ward
Testimony of = Sergeant=20 Cope
Testimony of Sergeant Kelly
Testimony of Constable=20 Prasobsin
Events at the Jail
Other = Events

7
11
18
21
24
31

ISSUES

FINDINGS OF FACT

DISCUSSION

Initial Detention of Mr. Ward
Arrest = of Mr.=20 Ward
Imprisonment of Mr. Ward
Strip Search of Mr. = Ward
Assault by=20 Sergeant Gatto
Seizure of Mr. Ward=92s = Vehicle
Negligence
Personal=20 Liability of Police Officers
Damages in Addition to Declaration = of=20 Charter Breach
Quantum of Damages

52
57
66
72
87
91
94
97
105
114

CONCLUSION

130

INTRODUCTION

[1] = ; =20 On August 1, 2002, Prime Minister Chr=E9tien attended a ceremony = for the=20 opening of a structure called the Millennium Gate, which is located on = East=20 Pender Street near Taylor Street in the area known as the Chinatown = section of=20 Vancouver. There was a report to the police during the ceremony = that=20 someone was intending to attempt to throw a pie at the Prime Minister, = as had=20 apparently occurred two years earlier in = Charlottetown.

[2] = ; =20 Mr. Ward was arrested by the police on Taylor Street and taken by = a paddy=20 wagon to the Vancouver City Jail behind the Provincial Courthouse at 222 = Main=20 Street (the =93Jail=94). He was required to remove all of his = clothes except=20 his underwear, and he was held in the jail for approximately 4 =BD = hours. =20 His car was impounded and searched by the police.

[3] = ; =20 In this action, Mr. Ward sues the police officers involved in his = arrest,=20 the police officer in charge of the jail, the City of Vancouver and Her = Majesty=20 the Queen in Right of the Province of British Columbia (the = =93Provincial=20 Government=94). Mr. Ward seeks declarations that certain of his = rights under=20 the Canadian Charter of Rights and Freedoms (the = =93Charter=94) were=20 infringed, as well as damages. In addition to infringement of his=20 Charter rights, Mr. Ward alleges that his treatment by the police = constituted assault, battery and false imprisonment. Mr. Ward=92s = Statement=20 of Claim also pleads negligence against the City of Vancouver and the = Provincial=20 Government.

BACKGROUND

[4] = ; =20 Mr. Ward has practiced as a lawyer in the Vancouver area for the = past 22=20 years. He has gained public attention as a result of his = involvement as=20 legal counsel for clients in high profile situations. These = clients have=20 included political protesters and persons who have made complaints = against the=20 police. On a personal level, Mr. Ward unsuccessfully ran for a = seat in the=20 1993 federal election and has a continuing interest in=20 politics.

[5] = ; =20 On August 1, 2002, Mr. Ward decided to attend the ceremony for = the=20 opening of the Millennium Gate by Prime Minister Chr=E9tien. He = parked his=20 car on Keefer Street, which is the street running parallel and to the = south of=20 East Pender Street, near the intersection with Taylor Street. Mr. = Ward=20 walked to East Pender Street, where he listened to the beginning of = Prime=20 Minister Chr=E9tien=92s speech. He then traveled south on = Taylor Street. This occurred shortly after the = following=20 broadcast over the police radio made by Sergeant Huffsmith, a Vancouver = police=20 officer assigned as a liaison with the R.C.M.P. for the purpose of the = Prime=20 Minister=92s visit:

There=92s a, uh,=20 white male overheard, uh, planning to, uh, throw a pie at the Prime=20 Minister. I=92ll just give you a description. He was last = seen in the=20 area of the King Kong Kit Kat, uh, sign, uh, on the corner of, uh, = Pender and=20 Taylor. Break. =85 He=92s described as a white male, 30 to = 35 years, 5=20 9, dark shorter hair wearing a white golf shirt or t-shirt with some red = on=20 it. Break. =85 He, uh, was wearing, uh, either jeans or = shorts, they=20 weren=92t sure, and I guess he was, uh, overheard planning to, uh, throw = a pie at=20 the Prime Minister. If anybody locates this individual, can you = let us=20 know.

At the time, Mr. Cameron, who is a white male, = was=20 wearing jeans and a t-shirt with some red on it, but his t-shirt was=20 predominately grey, his hair was grey or silver in colour and collar = length, and=20 he was in his mid-40s.

[6] = ; =20 Shortly thereafter, there was another radio broadcast from an=20 unidentified officer to the effect that a male matching the description = was=20 running southbound on Taylor Street, from Pender Street. Mr. Ward = was=20 arrested on Taylor Street and taken away in a paddy wagon within the = next few=20 minutes, but the testimony with respect to the events occurring on = Taylor Street=20 varied greatly. Mr. Ward testified on his own behalf, and Sergeant = Cope,=20 Sergeant Kelly and Constable Prasobsin testified on behalf of themselves = and the=20 City of Vancouver about these events.

Testimony of Mr.=20 Ward

[7] = ; =20 Mr. Ward testified that when he was on Pender Street, he observed = a man=20 standing behind the Prime Minister holding up a homemade sign reading = =93please=20 retire=94 and that he also noticed men in suits near this man. He = was=20 curious to see how this man would be treated by the men in suits, and he = walked=20 towards them. When Mr. Ward could not get through the crowd to get = close=20 to the man, he walked south on Taylor Street and saw an opening that he = believed=20 would allow him to go around the block and come up behind the man with = the=20 sign. He took a few steps in the direction of the area and came = upon a=20 uniformed officer who said that an officer behind him wanted to speak = with=20 him.

[8] = ; =20 Mr. Ward testified that he walked back to the officer who was = behind him=20 and that the officer was immediately aggressive or confrontational, = asking=20 whether Mr. Ward was going to throw a pie at the Prime Minster and why = Mr. Ward=20 was running away from him. The officer asked in a demanding way = for Mr.=20 Ward to produce his identification and Mr. Ward responded that he did = not have=20 to produce identification.

[9] = ; =20 Mr. Ward testified that he heard the officer call for backup over = the=20 police radio and, after two or three other police officers arrived, his = hands=20 were handcuffed. Mr. Ward asked if he was under arrest and for = what he was=20 under arrest. He got no response and then said that he wanted to = call his=20 lawyer. Mr. Ward pulled his cell phone out of one of his pockets = but it=20 was taken away from him by the police officers. He continued to = ask=20 whether he was under arrest and why he was arrested, but got no = responsive=20 answer. In addition to his cell phone, the police took his = wallet, keys and = watch.

[10] = ;=20 Mr. Ward testified that he did not raise his voice until he was = forcibly=20 moved down Taylor = Street towards Keefer Street, where he was put into = a police=20 wagon which transported him to the Jail.

Testimony of Sergeant=20 Cope

[11] = ;=20 Sergeant Cope was a constable with traffic patrol on the day in = question=20 and I will refer to him by his rank at the time. He had been = assigned to=20 lead the Prime Minister=92s motorcade out of the area after the = ceremony. He=20 was waiting with his motorcycle on Taylor Street, approximately halfway = between=20 East Pender Street and Keefer Street and across the street from the = Prime=20 Minister=92s motorcade, which was located in an area off an alley called = Shanghai=20 Alley.

[12] = ;=20 Constable Cope had heard the radio broadcast giving the = description of=20 the suspect. He testified that he first noticed Mr. Ward running = eastbound=20 on the south sidewalk of East Pender Street=20 and that Mr. Ward then walked quickly into the crowd watching the=20 ceremony. After he heard the second radio broadcast to the effect = that a=20 male matching the description was running southbound on Taylor Street, Constable Cope looked towards = Pender=20 Street and saw Mr. Ward running down the street in his direction. = At the=20 time, Constable Cope was not sure whether or not a pie had already been=20 thrown. The Constable moved to the middle of Taylor Street with = the intent=20 of stopping Mr. Ward. Constable Cope testified that Mr. Ward = veered away=20 from him and headed for Shanghai Alley. Constable Cope yelled at = him to=20 stop but Mr. Ward kept running. Constable Cope then yelled at the = people=20 stationed at the motorcade to stop him and one of them stopped Mr. Ward = and=20 walked him back towards Constable Cope.

[13] = ;=20 Constable Cope testified that he said words to the effect of = whether Mr.=20 Ward had some identification he could show him. Mr. Ward became=20 immediately agitated and angry, and told Constable Cope in a loud voice = that he=20 had no right to ask for his identification. Constable Cope = explained that=20 he was investigating an assault and believed that Mr. Ward may be = involved in=20 some sort of pie throwing incident. Mr. Ward said loudly that = Constable=20 Cope couldn=92t investigate him or screamed =93what am I under arrest = for=94 every=20 time the Constable attempted to say something to him. Mr. Ward was = screaming so loudly that pieces of phlegm were spraying from his mouth = and=20 landing on the Constable=92s face. Constable Cope then radioed for = backup=20 assistance, and Sergeant Kelly arrived on the scene.

[14] = ;=20 Constable Cope briefed Sergeant Kelly, who then started to walk = away in=20 order to find a witness or the officer who made the original radio=20 broadcast. Mr. Ward was becoming louder and more aggressive. = A group=20 of 7 or 8 people on Taylor Street had gathered to watch and the part of = the=20 crowd near the intersection of Taylor Street and East Pender = Street were also looking in their direction. = Mr. Ward=20 was directing his yelling at the crowd. Constable Cope made the = decision=20 to handcuff Mr. Ward because Mr. Ward was becoming more aggressive and = the=20 Constable was concerned that Mr. Ward may attempt to escape or assault = him.=20 Constable Cope put a handcuff on Mr. Ward=92s right wrist, and Mr. = Ward then=20 pulled his right arm away so that the free handcuff was hanging from his = wrist.

[15] = ;=20 By this time, Sergeant Kelly had come back and two other = officers,=20 Constable Prasobsin and his partner, had arrived. They assisted = Constable=20 Cope in putting the free handcuff on Mr. Ward=92s left hand in a fashion = that left=20 Mr. Ward=92s handcuffed hands in front of him. Mr. Ward continued = to scream=20 =93what am I under arrest for=94 very loudly, and Constable Cope noticed = a camera=20 crew nearby.

[16] = ;=20 Constable Cope recalled that Mr. Ward took a cell phone out of = his pocket=20 after he was handcuffed and that Sergeant Kelly took it away from him = before a=20 call was made. Constable Cope told Mr. Ward at some point that he = could=20 phone a lawyer as soon as practical.

[17] = ;=20 The other officers escorted Mr. Ward down Taylor Street to its=20 intersection with Keefer Street, where he was placed in a paddy wagon = when it=20 arrived. Mr. Ward was resisting in the sense of pulling = back. =20 Constable Cope cannot recall if Mr. Ward was saying anything at this=20 point.

Testimony of Sergeant=20 Kelly

[18] = ;=20 Sergeant Kelly was the general supervisor of patrol officers in = the=20 Downtown Eastside on the day in question. He was standing in the = general=20 area of East Pender and Taylor Streets, and he went to assist Constable = Cope=20 after he heard Constable Cope=92s radio broadcast that he had the guy = running down=20 Taylor Street who kind of matched the description.

[19] = ;=20 Sergeant Kelly testified that as he approached Constable Cope and = Mr.=20 Ward, he observed that Mr. Ward appeared to be quite hysterical and was = flailing=20 his arms while Constable Cope appeared to be trying to calm him = down. Mr.=20 Ward was shouting words to the effect of =93am I under arrest=94 and = =93why are you=20 stopping me=94. Sergeant Kelly checked with Constable Cope and = decided to=20 leave in order to attempt to determine the origin of the initial radio=20 broadcast. However, he came back to assist Constable Cope because = the=20 situation had become more agitated and Constable Cope was beginning to = apply=20 handcuffs. While Sergeant Kelly was assisting Constable Cope in = putting on=20 the handcuffs, Mr. Ward was screaming hysterically and spit from his = mouth was=20 landing on the two police officers.

[20] = ;=20 Sergeant Kelly saw that Mr. Ward had a cell phone in his right = hand and=20 removed it from him. He offered to dial a number for Mr. Ward but = got no=20 response. Mr. Ward continued to yell and scream, and he was = drawing the=20 attention of the media and the crowd towards him. Constables = Prasobsin and=20 Crawford arrived, and the police decided to move Mr. Ward towards Keefer = Street. Sergeant Kelly wanted to remove Mr. Ward from the area = because he=20 was breaching the peace and the Sergeant wanted to prevent further = breach, and=20 there was also an investigation of assault to conduct. Mr. Ward = was not=20 listening when the police tried to explain what was happening, including = the=20 fact that he was under arrest for breach of the peace and was being = investigated=20 for assault. Mr. Ward continued to yell and scream as Sergeant = Kelly and=20 Constable Prasobsin walked him to Keefer Street, where he was put into = the paddy=20 wagon for transport to the Jail.

Testimony of Constable=20 Prasobsin

[21] = ;=20 Constable Prasobsin was walking patrol on the Downtown Eastside = with his=20 partner, Constable Crawford, on August 1, 2002. Upon arriving in = the area=20 of the ceremony, they were told by a woman stationed at a barricade that = there=20 were rumours of an attempted =93pieing=94 of the Prime Minister. = After=20 Constable Cope had a suspect in custody, Constable Prasobsin and = Crawford were=20 assigned to the assistance he requested, and they went to Taylor=20 Street.

[22] = ;=20 As Constable Prasobsin arrived in the area, he observed Sergeant = Kelly=20 and Constable Cope with Mr. Ward. Mr. Ward was yelling =93what are = you=20 arresting me for=94 or =93am I under arrest=94. Constable = Prasobsin saw=20 Constable Cope wiping his face from the spit coming from Mr. Ward=92s = mouth. =20 The police decided to handcuff Mr. Ward but he was spinning around and = not=20 allowing his arm to be handcuffed. The officers were able to = handcuff Mr.=20 Ward=92s hand in front of his body, not behind his body as Constable = Prasobsin=20 would have preferred as his normal practice. During the = handcuffing=20 process, Mr. Ward was yelling at the crowd =93what am I under arrest = for=94, and=20 Constable Prasobsin stated =93breach of the peace=94.

[23] = ;=20 Constable Prasobsin and Sergeant Kelly escorted Mr. Ward down to = Keefer=20 Street to meet up with the paddy wagon. Mr. Ward continued to yell = and=20 complained that the police were manhandling him or roughing him = up. =20 Constable Prasobsin replied that they were not doing that. The = paddy wagon=20 then left to transport Mr. Ward to the Jail.

Events at the=20 Jail

[24] = ;=20 The evidence regarding the events relating to Mr. Ward which = occurred at=20 the Jail is not materially in dispute. At the time, the Jail was a = shared=20 facility operated jointly by the City of Vancouver and the Provincial=20 Government. The Jail was staffed by one police officer, who is = called the=20 officer in charge, and employees of the British Columbia Corrections=20 Branch. The officer in charge when Mr. Ward was at the Jail was = Sergeant=20 Gatto.

[25] = ;=20 The paddy wagon carrying Mr. Ward entered the loading bay of the = Jail,=20 and Mr. Ward was kept in the back of the wagon until the arrival of = Constable=20 Prasobsin, who had walked from Keefer Street to the Jail. The = Constable=20 read Mr. Ward his Charter rights in respect of his arrest for = breach of=20 the peace, which he explained was not a criminal offence, and told him = that he=20 was under investigation for assault. Mr. Ward indicated that he = wished to=20 consult counsel, and the Constable advised him that he would be given = the=20 opportunity to contact his counsel once he was inside the=20 Jail.

[26] = ;=20 Constable Prasobsin then completed a form called Vancouver Jail = Arrest=20 Report. On the form, the Constable indicated that the charges were = for=20 breach of the peace and =93assault (HPI)=94, which meant to hold Mr. = Ward pending=20 investigation of an assault. An officer with a rank of sergeant or = higher=20 has to authorize the holding of a prisoner without charges pending an=20 investigation, and it was authorized by Sergeant Kelly in this = instance. =20 Sergeant Kelly had telephoned Sergeant Gatto and told him that Mr. Ward = was to=20 be held on the breach of peace arrest until the Prime Minister left the = area and=20 that the length of time for which Mr. Ward was to be held pending = investigation=20 of an assault would be up to the officers who were assigned to conduct = the=20 follow-up investigation.

[27] = ;=20 The handcuffs were taken off Mr. Ward and he was taken into the=20 Jail. He made requests to contact his lawyer but Sergeant Gatto = responded=20 with words to the effect that =93we can do this the hard way or the easy = way,=20 you=92re not helping things=94. Mr. Ward was put in a holding cell = for a brief=20 period of time, and he was then escorted into a room by two of the = corrections=20 staff, who told him to remove his clothes. This request was made = in=20 accordance with the policy of the Corrections Branch in place at the = time. =20 The written policy read as follows:

A strip search will be done for new prisoners; = it is=20 deemed necessary because of the following:

=B7 =20 the seriousness of the=20 offence

=B7 =20 charges against the = prisoner are=20 associated with evidence hidden on the body

=B7 =20 at the time of the arrest, = weapons=20 were involved

=B7 =20 the accused is known to be = violent=20 and/or to carry weapons

=B7 =20 there is possible danger = to=20 personnel and prisoners in the Jail

A = strip search=20 will not usually be done on a Bylaw offender unless there is a threat to = the=20 safety and security of the Jail.

The practice actually in effect at the Jail = was that all=20 new entrants into the Jail were strip searched with the exception of = bylaw=20 offenders and severely intoxicated persons in a public place who were = brought to=20 the Jail to sober up (who I will refer to as =93drunken=20 persons=94).

[28] = ;=20 Mr. Ward removed all of his clothes except his underwear. = He=20 objected to disrobing further and told the corrections staff that he was = a=20 lawyer and knew that they had no right to strip search him. The=20 corrections staff consulted with Sergeant Gatto, who authorized a = deviation from=20 the policy, and the balance of the strip search was not conducted. = Mr.=20 Ward was allowed to put his clothes back on.

[29] = ;=20 Mr. Ward was then placed in a small cell labeled = =93Intox=94. The cell=20 was small, only 3 feet wide and 6 feet long. It had no = furnishings. =20 With the exception of two occasions when Mr. Ward was allowed to speak = on the=20 telephone with two of his lawyers, Mr. Ward spent the next several hours = in this=20 cell before he was released.

[30] = ;=20 Although there is no material dispute on the evidence regarding = the=20 events which occurred when Mr. Ward was at the Jail, there is a dispute = as to=20 whether a video camera was located in the room in which Mr. Ward was=20 searched. Mr. Ward testified that there was a camera in the room = but=20 conceded on cross-examination that he may have been mistaken. Mr. = Coulson,=20 the Director of the Jail at the time, testified that there was no camera = in the=20 search room and a schematic drawing of the Jail did not show a camera = located in=20 the room. I find that there was no video camera in the search=20 room.

Other = Events

[31] = ;=20 While Mr. Ward was at the Jail, his car was identified by the = police, who=20 caused it to be towed from its parking spot on Keefer Street to the = police=20 compound for the purpose of searching it once a search warrant had been=20 obtained. The follow-up investigation was assigned to Detectives = Brydon=20 and Petit. They contacted Sergeant Huffsmith and ascertained that = the=20 source of his original radio broadcast had been a member of the Prime = Minister=92s=20 entourage who could not be contacted. The Detectives decided that = they did=20 not have grounds to obtain a search warrant in respect of Mr. Ward=92s = car and=20 that they should release Mr. Ward from jail because they would not have=20 sufficient evidence to charge him within the 24 hour period following = his=20 arrest.

[32] = ;=20 Detectives Brydon and Petit then went to the Jail to release Mr.=20 Ward. They told him that he was being released pending further=20 investigation. The Detectives drove Mr. Ward to the police = compound and=20 arranged for the release of his car. Mr. Ward was released from = Jail=20 approximately 4 =BD hours after he was arrested and several hours after = the Prime=20 Minister had left the area following the ceremony.

[33] = ;=20 On the evening of August 1, 2002, Global TV broadcast a two part = story=20 lasting approximately 5 minutes about the Prime Minister=92s visit to=20 Vancouver. The first part of the story focused on the political = situation=20 of the Prime Minister remaining in office, and the second part of the = story=20 focused on the arrest of someone other than Mr. Ward in connection with = a=20 perceived attempt to throw a piece of cake at the Prime Minister. = Scenes=20 relating to the ceremony were shown during the first part of the = broadcast,=20 including approximately six seconds of footage of Mr. Ward being = escorted in=20 handcuffs by Sergeant Kelly and Constable Prasobsin. The = broadcaster made=20 reference to the fact that two arrests had been made at the=20 ceremony.

[34] = ;=20 Mr. Ward gave press and television interviews on the next day for = the=20 purpose of demanding an apology from the Vancouver Police = Department. He=20 subsequently lodged a complaint with the Police Complaint Commissioner, = but it=20 was dismissed and Mr. Ward=92s request for a public hearing was = denied. Mr.=20 Ward was never charged with the commission of an offence in connection = with the=20 events which occurred on August 1, 2002. He has not received an = apology=20 from the Vancouver Police Department.

ISSUES

[35] = ;=20 The issues to be determined by me are follows:

(a) was there a = breach of Mr.=20 Ward=92s rights under s. 7 of the Charter?

(b) was there a = breach of Mr.=20 Ward=92s rights under s. 8 of the Charter?

(d) was the tort of = assault=20 committed?

(e) was the tort of = battery=20 committed?

(f) was the = tort of false=20 imprisonment committed?

(g) were the City of = Vancouver or the=20 Provincial Government negligent?

(h) are the police = officers=20 personally liable?

(i) if a = declaration of a=20 Charter breach is granted, should damages for the breach also be=20 granted?

(j) if damages = are to be=20 granted, what is the appropriate amount?

[36] = ;=20 In his written submissions, counsel for Mr. Ward submits that the = Court=20 should declare that Mr. Ward=92s rights under s. 10(a) and (b) of the=20 Charter were also infringed. As the Statement of Claim only = sought=20 declarations in respect of ss. 7, 8 and 9 of the Charter, I will = not deal=20 with s. 10 of the Charter on the basis that it was not=20 pleaded.

FINDINGS OF=20 FACT

[37] = ;=20 Before turning to the legal issues, it is necessary to make = findings of=20 fact with respect to the events which occurred on Taylor Street. = In order=20 to do so, I must make a finding of credibility with respect to the = testimony of=20 Mr. Ward and the police officers.

[38] = ;=20 There was nothing in the demeanour of the witnesses or in the way = in=20 which they gave their testimony which would lead me to conclude that one = witness=20 was more credible than another witness. They were all equally = credible in=20 the manner in which they gave their testimony.

[39] = ;=20 Counsel for Mr. Ward points to inconsistencies in the testimony = of the=20 police officers in submitting that I should prefer the testimony of Mr. = Ward=20 over their testimony. While I agree that there were some = inconsistencies=20 in their testimony, they were not of such a nature for me to conclude = that the=20 police officers were not credible in the main thrust of their = testimony. =20 It is understandable in view of the passage of time since August 1, 2002 = that=20 the memories of the police officers would not be perfect. Indeed, = the fact=20 that there were inconsistencies on some points of their testimony = assists me in=20 concluding that the police officers should not be disbelieved as a = result of=20 collusion between them.

[40] = ;=20 In assessing the testimony of Mr. Ward and the police officers, I = looked=20 to evidence outside their testimony in order to determine whether it was = more=20 consistent with the testimony of Mr. Ward or the testimony of the police = officers. I have concluded that Mr. Ward is mistaken in his = recollection=20 of the disputed events which occurred on Taylor Street. The = evidence which=20 has led me to prefer the testimony of the police officers on the major=20 discrepancies in the evidence includes the following:

1. = Mr.=20 Ward testified that he was not running down Taylor Street, while = Constable Cope=20 testified that he was running. On the police radio broadcast, = Constable=20 Cope had reported that he thought he had the male referred to in the = broadcast=20 from the unidentified officer that a male matching the description was = running=20 southbound on Taylor. The operator then asked if Constable Cope = had the=20 guy that was threatening to throw the pie. Constable Cope = responded that=20 he didn=92t know if it was the guy, but =93this is the guy that was = running=20 down Taylor Street and he kinda matches the description=94. = Although prior=20 consistent statements are generally inadmissible as evidence of the = truth of the=20 contents of the statements, Constable Cope=92s answer falls within the = res=20 gestae exception because it was made contemporaneously with little = or no=20 opportunity for fabrication: see Sopinka, Lederman and Bryant, The = Law of=20 Evidence in Canada, 2nd ed. (Butterworths: Toronto and Vancouver, = 1999) at=20 p. 323.

2. = Unless=20 Constable Cope was yelling for Mr. Ward to stop, the R.C.M.P. officer at = the=20 Prime Minister=92s motorcade would not have known to stop Mr.=20 Ward.

3. =20 Constable Cope asked on the police radio broadcast for another = unit to=20 come to the scene. There would have been no need to call for a = backup unit=20 if Mr. Ward was not presenting difficulties for Constable=20 Cope.

4. = Mr.=20 Ward would have had his hands cuffed behind his back (as Constable = Prasobsin=20 testified was the preferred practice) if he was not making it difficult = for the=20 police to handcuff him.

5. = Unless=20 Mr. Ward was yelling and creating a disturbance, it is unlikely that the = attention of the Global TV camera crew would have been drawn to = him. The=20 beginning of the six second clip showing Mr. Ward filmed him and the = police=20 officers beside Constable Cope=92s motorcycle, the location where = Constable Cope=20 had his dealings with Mr. Ward. Mr. Ward testified that he did not = raise=20 his voice until he was moved down Taylor Street towards Keefer Street, = but he=20 must have been yelling or screaming at an earlier point in time (as the = police=20 officers testified) in order to have drawn the attention of the camera = crew to=20 him and for the crew to have gotten in a position to have started their = camera=20 while Mr. Ward was still beside Constable Cope=92s = motorcycle.

6. = The=20 Global TV broadcast showed that Mr. Ward had a very agitated look on his = face,=20 that he appeared to be yelling for the benefit of the onlookers and that = he was=20 holding back as he was being escorted from Constable Cope=92s motorcycle = down=20 Taylor Street.

[41] = ;=20 The evidence is relatively clear that the police arrested Mr. = Ward on=20 Taylor Street for breach of the peace pursuant to s. 31 of the = Criminal=20 Code, R.S.C. 1985, c. C-46, as amended. It is less clear = whether the=20 police arrested him on Taylor=20 Street for assault or attempted=20 assault. Both counsel for Mr. Ward and the City of Vancouver made = their=20 final submissions on the basis that he was arrested for assault or = attempted=20 assault on Taylor Street. I am not persuaded that he=20 was.

[42] = ;=20 Constable Cope did not testify about arresting Mr. Ward during = his=20 evidence. He testified that he told Mr. Ward that he was under=20 investigation for assault. In his cross-examination, he testified = that Mr.=20 Ward was not under arrest at the time he was = handcuffed.

[43] = ;=20 Following is the evidence of Sergeant Kelly regarding Mr. = Ward=92s=20 arrest:

Q Was he=20 under arrest at that point?

A =20 Yes.

Q And=20 what was he under arrest for?

A =20 Breach of the peace and we also had an investigation to conduct = regarding=20 assault.

Q So are=20 these two separate arrests or one arrest how does this = work?

A =20 Well its the assault that the broadcast of the potential assault on the = prime=20 minister that led us to his original detention, us meaning the police in = general, my lord, and then specifically our arrest involving that = assault=20 pending investigation, and for the breach of the = peace.

[44] = ;=20 Constable Prasobsin testified as follows when describing the = events when=20 he arrived at the scene:

A =20 He was yelling, "Am I under arrest? Am I under arrest? Am I = under=20 arrest?" Constable Cope advised him numerous times that he was = under=20 investigation =85 During this time [the handcuffing of Mr. Ward], Mr. = Ward=20 continued to yell, "What am I under arrest for? What am I under = arrest=20 for?" And I stated to him, after my observations of the scene, his = conduct, I stated to him, "breach of the peace".

=85

Q Now,=20 what was your understanding at that point when Mr. Ward was = handcuffed? =20 What was your understanding of what was happening?

A =20 I understood that he had been detained as a, as a person who possibly = was=20 attempting to pie the Prime Minister. I made observations of his = demeanour=20 at the time, trying to figure out -- I have dealt with a lot of people, = my lord,=20 in the six years I have been working the Downtown Eastside. It = wasn't=20 actually clear to me whether he was angry, plain angry at the police = officers,=20 whether he was a substance abuser, whether there were mental health=20 issues. It didn't quite fit into any of those=20 categories.

As I am watching him, seeing him playing to = the crowd, I=20 made note that he was trying to cause a disturbance, more than anything = else,=20 and he wasn't trying to communicate to the police officers. Thus, = I stated=20 to him that he was under arrest for breach of the = peace.

The following = is the=20 Constable=92s testimony about what he said to Mr. Ward when he was taken = out of=20 the back of the paddy wagon in the loading bay of the = Jail:

Q =20 Perhaps we should maybe complete this sort of history of events. = So, the=20 wagon left with Mr. Ward?

A =20 That is correct, my lord. Myself and Constable Crawford walked = straight to=20 the jail. I, unfortunately, I don't recall the path that we=20 walked.

Upon arrival at the jail, I = removed Mr. Ward=20 from -- we entered the jail, sorry, the wagon bay. I removed Mr. = Ward from=20 the wagon and I spoke to him outside the, the jail entrance next to the=20 stairway.

At that time, I chartered Mr. = Ward for breach=20 of the peace and, and, and advised him that he was under investigation = for=20 assault.

I advised Mr. Ward at that time that breach of = the peace=20 was not a criminal charge and the circumstances around the investigation = into=20 the assault in that there were rumours of a male being heard speaking = about=20 pieing the Prime Minister, that he matched the description and that's = what the=20 reason he was there.

[45] = ;=20 My conclusion from the testimony of Constable Prasobsin is that = Mr. Ward=20 was arrested for breach of the peace but was simply under investigation = for=20 assault. Sergeant Kelly said the same thing when he first answered = his=20 counsel=92s question and only revised his answer at the prompting of his = counsel=92s=20 follow-up question.

[46] = ;=20 It is my = finding that Mr.=20 Ward was not arrested for assault or attempted assault on Taylor Street, = but was=20 being held pending investigation of an assault. I appreciate that = words of=20 arrest do not need to be used in order for a person to be arrested, and = it can=20 be sufficient if the person is physically detained. Here, it is = clear that=20 Mr. Ward was arrested but the arrest was for breach of the peace, and = the=20 evidence does not establish that he was arrested at the same time for = assault or=20 attempted assault.

DISCUSSION

[47] = ;=20 Sections 7, 8 and 9 of the Charter read as=20 follows:

7. =20 Everyone has the right to life, liberty and security of the person and = the right=20 not to be deprived thereof except in accordance with the principles of=20 fundamental justice.

8. =20 Everyone has the right to be secure against unreasonable search or=20 seizure.

9. =20 Everyone has the right not to be arbitrarily detained or=20 imprisoned.

Sections 8 through 14 of the Charter = are=20 illustrative of deprivations of the rights articulated in s. 7: see = Reference=20 re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486 at p. = 502. A breach of any of ss. 8 through 14 will automatically = constitute a=20 breach of s. 7. The converse is not true because s. 7 provides = residual=20 protection for circumstances which do not fall within ss. 8 through 14: = see=20 Thomson Newspapers Ltd. v. Canada (Director of Investigation & = Research,=20 Restrictive Trade Practices Commission, [1990] 1 S.C.R.=20 425.

[48] = ;=20 An assault is the intentional creation of the apprehension of = imminent=20 harmful or offensive conduct: see Linden & Feldthusen, Canadian = Tort=20 Law, (8th ed) (Markham: LexisNexisButterworths) at p. 46. A = battery is=20 the intentional infliction of unlawful force on another person: see = Norberg=20 v. Wynrib, [1992] 2 S.C.R. 226 at =B6 26. Consent and = justification are=20 defences to the torts of assault and battery. Section 25 of the=20 Criminal Code provides justification to a peace officer if he or = she acts=20 on reasonable grounds, is doing what he or she is required or authorized = to do=20 and is using no more than the force necessary for that=20 purpose.

[49] = ;=20 False imprisonment is the intentional and total confinement of a = person=20 against his or her will without lawful justification: see Linden &=20 Feldthusen, Canadian Tort Law, at p. 50. An imprisonment by = a=20 police officer is justified if the officer acts with legal = authority. If=20 the imprisonment follows an unlawful detention or arrest, the = imprisonment will=20 not be justified.

[50] = ;=20 In order to succeed on the tort of negligence, a plaintiff must = prove=20 that (i) the defendant owed a duty of care to the plaintiff, (ii) there = was a=20 breach of the duty of care through the failure of the defendant to = exercise the=20 standard of care required of a reasonable and careful person, and (iii) = the=20 plaintiff suffered damage as a result of the breach.

[51] = ;=20 As the claims of Charter breaches and the tort claims = overlap to a=20 certain extent, I will deviate from the order of the issues listed = above. =20 I will first analyze the initial detention of Mr. Ward, his arrest, his=20 imprisonment, the strip search and the seizure of his car. I will = then=20 deal with the remaining issues.

Initial Detention of Mr. = Ward

[52] = ;=20 The concept of detention was discussed by the Supreme Court of = Canada in=20 R. v. Mann, 2004 SCC 52. It was described as follows at = =B6s 19 and=20 20:

19 = "Detention"=20 has been held to cover, in Canada, a broad range of encounters between = police=20 officers and members of the public. Even so, the police cannot be = said to=20 "detain", within the meaning of ss. 9 and 10 of the Charter, = every=20 suspect they stop for purposes of identification, or even interview. = The=20 person who is stopped will in all cases be "detained" in the sense of = "delayed",=20 or "kept waiting". But the constitutional rights recognized by ss. = 9 and=20 10 of the Charter are not engaged by delays that involve no = significant=20 physical or psychological restraint. In this case, the trial judge = concluded that the appellant was detained by the police when they = searched him.=20 We have not been urged to revisit that conclusion and, in the=20 circumstances, I would decline to do so.

20 A = detention=20 for investigative purposes is, like any other detention, subject to=20 Charter scrutiny. Section 9 of the Charter, for = example,=20 provides that everyone has the right "not to be arbitrarily detained". = It=20 is well recognized that a lawful detention is not "arbitrary" within the = meaning=20 of that provision. Consequently, an investigative detention that = is=20 carried out in accordance with the common law power recognized in this = case will=20 not infringe the detainee's rights under s. 9 of the=20 Charter.

It is beyond = question that=20 Mr. Ward was not merely delayed or kept waiting. He was detained = for=20 investigative purposes and, thus, his detention is subject to = Charter=20 scrutiny.

[53] = ;=20 Counsel for Mr. Ward submits that it was necessary for Constable = Cope to=20 have reasonable and probable grounds to detain Mr. Ward. I do not = agree=20 with this submission. The phrase =93reasonable and probable = grounds=94 is more=20 properly associated with the prerequisite for an arrest by a peace = officer=20 without a warrant: see R. v. Storrey, [1990] 1 S.C.R. 241. = This is=20 derived from s. 495 of the Criminal Code, which provides that a = peace=20 officer may arrest without warrant a person who, on reasonable grounds, = the=20 officer believes has committed or is about to commit an indictable=20 offence.

[54] = ;=20 The basis upon which police officers may detain persons for = investigative=20 purposes was discussed in Mann, at =B6 45:

To=20 summarize, as discussed above, police officers may detain an individual = for=20 investigative purposes if there are reasonable grounds to suspect in all = the=20 circumstances that the individual is connected to a particular crime and = that=20 such a detention is necessary. In addition, where a police officer = has=20 reasonable grounds to believe that his or her safety or that of others = is at=20 risk, the officer may engage in a protective pat-down search of the = detained=20 individual. Both the detention and the pat-down search must be = conducted=20 in a reasonable manner. In this connection, I note that the = investigative=20 detention should be brief in duration and does not impose an obligation = on the=20 detained individual to answer questions posed by the police. The=20 investigative detention and protective search power are to be = distinguished from=20 an arrest and the incidental power to search on arrest, which do not = arise in=20 this case.

This requirement has also = been=20 expressed as =93articulable cause=94 and =93reasonable grounds to = detain=94: see also=20 Storrey and R. v. Simpson (1993), 12 O.R. (3d) 182 = (C.A.). =20 In Mann at =B6 27, the Supreme Court of Canada referred to = Simpson=20 in specifically stating that the threshold for articulable cause is = clearly=20 lower than the reasonable and probable grounds required for lawful=20 arrest.

[55] = ;=20 In my view, the detention of Mr. Ward by Constable Cope was not=20 arbitrary. Constable Cope had articulable cause to detail Mr. Ward = for=20 investigative purposes or, in other words, he had reasonable grounds to = suspect=20 that Mr. Ward was connected to a particular crime and to believe that = his=20 detention was necessary. Based on (i) the police radio broadcasts, = (ii)=20 the facts that Mr. Ward was running and appeared to be avoiding = Constable Cope,=20 and (iii) Mr. Ward=92s clothing more or less matched the clothing = described in the=20 first police radio broadcast, it is my opinion that Constable Cope had=20 reasonable grounds for suspecting that Mr. Ward was connected to an = assault or=20 attempted assault of the Prime Minister.

[56] = ;=20 I conclude that the initial detention of Mr. Ward by Constable = Cope did=20 not represent a breach of s. 9 of the Charter. I also = conclude that=20 Constable Cope and the other officers did not commit the torts of = assault or=20 battery when they handcuffed him because Constable Cope had reasonable = grounds=20 to believe that Mr. Ward may attempt to escape or assault = him.

Arrest of Mr.=20 Ward

[57] = ;=20 Mr. Ward was arrested on Taylor Street for breach of the = peace. His=20 counsel submits that Mr. Ward=92s actions did not constitute a breach of = the peace=20 and relies on R. v. Januska (1996), 106 C.C.C. (3d) 183 (Ont. Ct. = of Jus.=20 (Gen. Div.)), which was quoted with approval by the B.C. Court of Appeal = in=20 R. v. Khatchadorian (1998), 127 C.C.C. (3d) 565. In = Januska,=20 the police approached a vehicle in which the accused was a = passenger. As=20 he was being questioned outside the vehicle, the accused became = belligerent and=20 loud. The Court held that it was not a breach of the peace for an=20 individual to demand vociferously to be told what he is believed to have = done=20 wrong.

[58] = ;=20 In the present case, Mr. Ward went further than loudly = questioning=20 whether he was under arrest and asking what offence for which he was=20 arrested. He was yelling at the crowd, and drew the attention of a = number=20 of people, including the Global TV camera crew, away from the = ceremony. He=20 was creating a disturbance in a public place. The police were = entitled to=20 arrest him for breach of the peace.

[59] = ;=20 As counsel made their closing submissions on the basis that Mr. = Ward was=20 arrested for assault or attempted assault, I will next consider whether = the=20 police were entitled to arrest him on Taylor Street for assault or = attempted=20 assault. The police would have been entitled to arrest him if they = had=20 reasonable and probable grounds to believe that he had committed or was = about to=20 commit an indictable offence and if there was an objective basis for = that=20 belief: see Storrey.

[60] = ;=20 In my opinion, there was no objective basis for the police to = believe=20 that Mr. Ward was about to commit an indictable offence. Mr. Ward = could=20 not have assaulted the Prime Minister with a pie from his location on = Taylor=20 Street. He was too far away and was not in possession of a=20 pie.

[61] = ;=20 The police also lacked reasonable and probable grounds for = concluding=20 that Mr. Ward had committed an assault of the Prime Minister. = Although=20 Constable Cope was unsure whether the Prime Minister had been assaulted = when he=20 initially detained Mr. Ward, Sergeant Kelly and Constable Prasobsin were = within=20 sight of the ceremony when Constable Cope requested backup assistance, = and they=20 knew that the Prime Minister had not been assaulted. All of the = officers=20 conceded that if the Prime Minister had been assaulted, there would have = been a=20 police radio broadcast about it within a short period of = time.

[62] = ;=20 Counsel for the City of Vancouver and the police officers relies = on s.=20 24(1) of the Criminal Code, which states that every one who, = having an=20 intent to commit an offence, does anything for the purpose of carrying = out his=20 intention is guilty of an attempt to commit the offence. The only = evidence=20 the police had was a report that a white male had been overheard = planning to=20 throw a pie at the Prime Minister. That does not constitute an = attempt to=20 commit assault. It would not even have been an offence of = attempted=20 conspiracy if the male had been overheard planning it with another = person: see=20 R. v. D=E9ry, 2006 SCC 53.

[63] = ;=20 There was no evidence of a pie being found in the possession of = Mr. Ward=20 or nearby his location. While his clothing was fairly close to the = description of the suspect, his height, hair colour and length, and age = were all=20 different from the suspect=92s description. Although the police = officers=20 testified that they believed that Mr. Ward was involved in a plan to pie = the=20 Prime Minister, they did not testify that they had reasonable grounds to = believe=20 that Mr. Ward had done anything for the purpose of carrying out an = intention to=20 assault the Prime Minister.

[64] = ;=20 I conclude that an objective basis did not exist for the police = officers=20 to have reasonable and probable grounds to believe that Mr. Ward had = done=20 anything for the purpose of assaulting the Prime Minister. This is = also=20 the conclusion reached by Detectives Brydon and Petit when they decided = that=20 there were insufficient grounds to obtain a warrant to search Mr. = Ward=92s=20 vehicle.

[65] = ;=20 It follows from my conclusion that the police were not entitled = to arrest=20 Mr. Ward without a warrant on Taylor Street for assault or attempted=20 assault. However, even if Mr. Ward was unlawfully arrested for = assault or=20 attempted assault on Taylor Street, the police did not commit the torts = of=20 assault or battery or breach any of Mr. Ward=92s Charter rights = in leading=20 him down Taylor Street and into the paddy wagon because they were = entitled to=20 take him into custody in connection with the arrest for breach of the=20 peace.

Imprisonment of Mr.=20 Ward

[66] = ;=20 Mr. Ward was imprisoned from the time he was put into the paddy = wagon=20 until he was released from the Jail at approximately 3:30 p.m. As = a result=20 of my conclusion that Mr. Ward was lawfully arrested for breach of the = peace,=20 the police were entitled to initially detain him in custody. = Sergeant=20 Kelly told the officer in charge at the Jail, Sergeant Gatto, that Mr. = Ward=20 should be held on the breach of the peace arrest until the Prime = Minister had=20 left the area.

[67] = ;=20 The exact time the Prime Minister left the ceremony is not clear = on the=20 admissible evidence. Constable Cope testified that he expected the = Prime=20 Minister to be at the ceremony for approximately half an hour. As = the=20 Prime Minister=92s motorcade was located near Constable Cope=92s = motorcycle, it is=20 clear that the Prime Minister had not left the area before Mr. Ward was = put in=20 the paddy wagon and taken to the Jail. The Prime Minister probably = departed shortly after Mr. Ward was taken from the paddy wagon into the = Jail,=20 but I cannot determine on the evidence whether the Prime Minister left = the area=20 before or after Mr. Ward was strip searched.

[68] = ;=20 Once the Prime Minister did leave the area, the detention of Mr. = Ward=20 could not be justified on his arrest for breach of the peace. It = is clear,=20 however, that he was detained for several hours after the Prime Minister = had=20 left. The two potential justifications for his continued detention = are=20 that (a) he was being held on an investigative detention, and (b) he was = under=20 arrest for assault or attempted assault.

[69] = ;=20 In Mann, the majority held that an investigative detention = must be=20 of brief duration (=B6 22) and cannot become a de facto arrest = (=B6=20 35). The detention of Mr. Ward was not brief. It may be = argued that=20 it was reasonably necessary to have detained Mr. Ward until such time as = his=20 vehicle could be secured so that he did not have the opportunity to = drive away=20 with incriminating evidence. I need not decide if this was a = legitimate=20 justification for detaining Mr. Ward because he was detained for another = 3 =BD=20 hours after his vehicle was secured.

[70] = ;=20 As a result, if Mr. Ward was not arrested for assault or = attempted=20 assault on Taylor = Street, his continued detention after the Prime = Minister left=20 the area became a de facto arrest. I have already held that = an=20 objective basis to believe that there were reasonable and probable = grounds to=20 arrest Mr. Ward on Taylor Street for assault or attempted assault did = not=20 exist. The only new information which came to light after Mr. Ward = was put=20 in the paddy wagon was the fact that Mr. Ward=92s vehicle was parked = near the=20 intersection of Taylor and Keefer Streets. There was nothing = unusual about=20 Mr. Ward=92s vehicle being parked near the ceremony. Thus, an = objective=20 basis to believe that there were reasonable and probable grounds to = arrest Mr.=20 Ward for assault or attempted assault similarly did not exist at the = time the=20 Prime Minister left the area.

[71] = ;=20 I conclude that Mr. Ward was unlawfully imprisoned for a period = of 3 =BD to=20 4 hours after the Prime Minister left the ceremony. He was falsely = imprisoned by the police during this period. His right under s. 9 = of the=20 Charter not to be arbitrarily imprisoned was infringed when he = was kept=20 in the Jail after the Prime Minister had left.

Strip Search of Mr.=20 Ward

[72] = ;=20 If Mr. Ward was not lawfully arrested and imprisoned at the time = of the=20 strip search, it would have been an unreasonable search, contrary to s. = 8 of the=20 Charter. However, as I indicated above, I cannot determine = whether=20 the strip search occurred before or after the Prime Minister had left = the area=20 of the ceremony. The result is that Mr. Ward has not discharged = the burden=20 on him in this regard, and I must consider whether the search was = unreasonable=20 on the basis that Mr. Ward was lawfully under arrest for breach of the = peace at=20 the time of the search.

[73] = ;=20 The Supreme Court of Canada considered the topic of strip = searches in=20 R. v. Golden, [2001] 3 S.C.R. 679, a case involving a search = incident to=20 arrest. The Court held that strip searches incident to arrest may = be=20 conducted where the police have reasonable and probable grounds for = searching=20 for the purpose of discovering weapons or evidence, but a strip search = must be=20 conducted in a manner that interferes with the privacy and dignity of = the person=20 as little as possible. The Court made a point of distinguishing = such=20 searches from searches conducted when a person enters a = jail:

=B6=20 96 It may be useful to distinguish between strip = searches immediately incidental to arrest, and searches related to = safety issues=20 in a custodial setting. We acknowledge the reality that where = individuals=20 are going to be entering the prison population, there is a greater need = to=20 ensure that they are not concealing weapons or illegal drugs on their = persons=20 prior to their entry into the prison environment. However, this is = not the=20 situation in the present case. The type of searching that may be=20 appropriate before an individual is integrated into the prison = population cannot=20 be used as a means of justifying extensive strip searches on the street = or=20 routine strip searches of individuals who are detained briefly by = police, such=20 as intoxicated individuals held overnight in police cells: R. v. = Toulouse,=20 [1994] O.J. No. 2746 (QL) (Prov. Div.).

The Court went on to give = an example of=20 the difference between prison searches and short term detention=20 searches:

=B6=20 97 The difference between the prison context and = the=20 short term detention context is expressed well by Duncan J. in the = recent case=20 of R. v. Coulter, [2000] O.J. No. 3452 (QL) (C.J.), at paras. = 26-27, which=20 involved a routine strip search carried out incident to an arrest and = short term=20 detention in police cells for impaired driving. Duncan J. noted = that=20 whereas strip searching could be justified when introducing an = individual into=20 the prison population to prevent the individual from bringing contraband = or=20 weapons into prison, different considerations arise where the individual = is only=20 being held for a short time in police cells and will not be mingling = with the=20 general prison population. While we recognize that police officers = have=20 legitimate concerns that short term detainees may conceal weapons that = they=20 could use to harm themselves or police officers, these concerns must be=20 addressed on a case-by-case basis and cannot justify routine strip = searches of=20 all arrestees.

[74] = ;=20 The B.C. Provincial Court had occasion to consider the issue of = strip=20 searches at the Jail in R. v. Douglas, 2003 BCPC 392. In = that case,=20 the accused was stopped for speeding and was arrested for assaulting one = of the=20 police officers who had stopped her. She was taken to the Jail, = where a=20 strip search occurred in accordance with the same policy as was in = effect when=20 Mr. Ward was searched. Bruce, P.C.J. (as she then was) said the = following=20 when considering searches of persons detained pending bail in accordance = with=20 the principles described in Golden:

=B6 80 In my view, = once the=20 detainee is mixed with the general prison population in circumstances = where he=20 or she is not directly supervised by a corrections officer, and in hand = cuffs or=20 other forms of restraint, a strip search will normally be justified = given the=20 security concerns present in the Vancouver jail environment. This will be = the case=20 regardless of whether the detainee presents any particular safety = concerns.=20 In this category are persons who have been lodged in cells and are = awaiting a bail hearing upon a determination by the OIC that they are = not=20 suitable for release on a promise to appear.

=B6 81 Excluded from = this category=20 of persons are those prisoners who are awaiting a determination by the = OIC, even=20 where they are in a holding cell with other new prisoners, and where = they have=20 some preliminary contact with corrections officers during the booking in = process. Until it is determined that these persons will be = detained in=20 custody, and therefore must be lodged in cells, a proper balancing of = their=20 right to privacy with the institution's interests in securing a proper = level of=20 safety in the jail, precludes a blanket policy of strip=20 searching.

=B6=20 82 For those newly arrived prisoners a separate = holding=20 cell or cells can be arranged to ensure minimal contact with corrections = staff=20 and other personnel and to ensure they are not mixed with the general = prison=20 population prior to being lodged in cells. While Mr. Coulson = testified=20 that additional cell space is not available in the present configuration = of the=20 jail, I note that currently space is found for SIPP's and by law=20 offenders. He also testified that where prisoners refuse to be = strip=20 searched they are put in a cell until they consent. Thus where = there is a=20 need for space, it can be found.

[75] = ;=20 Bruce, P.C.J. concluded that the accused in that case fell within = the=20 category of prisoners properly searched as part of the blanket policy = but that=20 the manner of the search was unreasonable. The decision in = Douglas=20 has been referred to with approval in R. v. Drury, 2004 BCPC 188 = and=20 R. v. Wu, (27 January 2006, Vancouver Docket No. 150911,=20 B.C.P.C.).

[76] = ;=20 Mr. Coulson, the Director of the Jail at the time of Mr. Ward=92s = imprisonment, who also gave evidence in Douglas,=20 testified that under the policy in effect at the time bylaw offenders = and=20 drunken persons were searched by way of a pat-frisk and a metal = detector. =20 He also testified that after the decision in Douglas was=20 issued, the policy of the Jail was changed so that persons detained but = not yet=20 charged were no longer strip searched as a matter of course. Cells = in the=20 Jail were dedicated to this category of prisoner; new cells did not have = to be=20 constructed but it was necessary to hire additional = staff.

[77] = ;=20 Counsel for the Provincial Government says that, if it were not = for the=20 decision of the B.C. Court of Appeal in Fieldhouse v. Kent = Institution=20 (1995), 98 C.C.C. (3d) 207 (B.C.C.A.) (which dealt with a program of = random=20 urinalysis in a penitentiary), the present case would be governed by the = decision of the Supreme Court of Canada in Conway v. Canada (Attorney = General), [1993] 2 S.C.R. 872. He states that, if this case = goes to=20 appeal, he will argue that Conway=20 is the governing = authority. =20 Although I need not decide the point in view of the position of counsel = for the=20 Provincial Government that I am bound by Fieldhouse, I observe = that=20 Conway involved frisk searches of clothed male = prisoners by=20 female guards and did not deal with the reasonableness of strip=20 searches.

[78] = ;=20 Counsel for the Provincial Government urges me not to follow=20 Douglas (which is not binding upon me) because Bruce, = P.C.J.=20 did not consider the effect of s. 19 of the Correctional Centre Rules = and=20 Regulations, B.C. Reg. 284/78 (which was in effect until = 2005). =20 Section 19 read as follows:

(1) = On=20 admission of an inmate to a correctional centre the person of the inmate = and his=20 possessions shall be searched by an officer of the same gender as the=20 inmate.

(2) = Once an=20 inmate has been admitted to a correctional centre an officer shall only = conduct=20 such further searches where

(a) = the=20 director so authorizes, or

(b) = an officer=20 has reasonable and probable grounds to believe that the inmate is in = possession=20 of any contraband, in which case the officer shall search the inmate and = provide=20 a written report to the director within 12 hours.

[79] = ;=20 In my opinion, s. 19 is not determinative of the issue. It = simply=20 states that all entrants to a correctional centre must be = searched. It=20 does not say that they must be strip searched. Counsel for = Mr. Ward=20 doesn=92t take issue with the right of the corrections staff to have = searched Mr.=20 Ward (as long as he had been lawfully under arrest). It is the = manner of=20 the search to which objection is taken. Counsel for Mr. Ward says = that it=20 was unreasonable for his client to have been strip searched and that a=20 reasonable search in circumstances where Mr. Ward had not yet been = charged would=20 have been the pat-down or frisk search, coupled with the use of a metal=20 detector, that was used for bylaw offenders and drunken=20 persons.

[80] = ;=20 Mr. Coulson testified that the policy in effect at the Jail at = the time=20 of the search of Mr. Ward was to strip search all new entrants into the = Jail=20 except bylaw offenders and drunken persons. I agree with the = conclusion of=20 Bruce, P.C.J. in Douglas that it is not reasonable to strip search as = a matter=20 of policy all new arrivals at the Jail in respect of whom no decision to = charge=20 them with an offence has yet been made. There was available space = at the=20 Jail to hold such persons, separate from the general prison population, = until a=20 decision is made to either release them or to charge them with an = offence. =20 Counsel for the Provincial Government says that if this is done, s. 19 = of the=20 Correctional Centre Rules and Regulations would prevent a further = strip=20 search when a decision is made to charge the person and place them with = the=20 general prison population. However, such searches could properly = be=20 authorized by the director of the correctional facility pursuant to = clause 2(a)=20 of s. 19. This provision did not require that the authorization be = given=20 on a case by case basis, and a general authorization could have been=20 given.

[81] = ;=20 There is another decision involving a strip search which was not = cited to=20 me by counsel; namely, Ilnicki v. MacLeod, [2006] 3 W.W.R. 627 = (Alta.=20 C.A.). In that case, the plaintiff had been arrested on an = outstanding=20 warrant related to traffic violations. He was taken to the police = station,=20 where he was strip searched. In upholding the decision of the = trial judge=20 that the strip search violated the plaintiff=92s rights under s. 8 of = the=20 Charter, the Alberta Court of Appeal quoted from =B6s 96 and 97 = of=20 Golden (which I have set out above) and continued as=20 follows:

=B6 13 The trial judge = applied=20 this law from Golden and concluded: =93There is no doubt in my = mind that=20 this circumstance involved a short-term detention context especially in = light of=20 the position that Constable Ressler was taking =96 that he would not be = opposing=20 Mr. Ilnicki=92s being granted bail.=94 We agree with this = conclusion. =20 The Supreme Court rejected a short term in a jail cell as automatically=20 justifying a strip search, while still recognizing that such a search = may be=20 necessary even then, but must be analyzed on a case by case=20 basis.

=B6=20 14 Thus, we reject the appellants=92 argument = that placing=20 a detainee into a jail cell with one or more prisoners for a short term = (here=20 about ten minutes) is different than placing a detainee into a drunk = tank. =20 The court specifically dealt with that issue, as noted in the = highlighted=20 portion of the quote at para. 97.

[82] = ;=20 I have held that there was no lawful arrest of Mr. Ward for = assault or=20 attempted assault. At the time he was strip searched, Mr. Ward was = being=20 detained for a short period of time pursuant to his arrest for breach of = the=20 peace. It is even more unreasonable to strip search a person being = detained for breach of the peace than it is to strip search a person who = has=20 been arrested for a substantive offence and who may be charged with the = offence=20 and placed with the general prison population. Mr. Ward was in no=20 different position than the drunken persons who are not strip=20 searched.

[83] = ;=20 Douglas was decided upon the basis of the policy in = respect of=20 which Mr. Coulson testified in that case and in this case was in effect = at the=20 time; namely, strip searches are conducted of all new prisoners except = bylaw=20 offenders and drunken persons. But that was not the written policy = as=20 contained in the Policy and Procedure Manual prepared by the Corrections = Branch=20 (in conjunction with the Vancouver City Police) for the Jail. I = will=20 repeat the written policy for ease of reference:

A strip search will be done for new prisoners; = it is=20 deemed necessary because of the following:

=B7 =20 the seriousness of the=20 offence

=B7 =20 charges against the = prisoner are=20 associated with evidence hidden on the body

=B7 =20 at the time of the arrest, = weapons=20 were involved

=B7 =20 the accused is known to be = violent=20 and/or to carry weapons

=B7 =20 there is possible danger = to=20 personnel and prisoners in the Jail

A = strip search=20 will not usually be done on a Bylaw offender unless there is a threat to = the=20 safety and security of the Jail.

In my view, the policy is=20 ambiguous. It begins by stating that strip searches will be done = for new=20 prisoners, which one would assume, without reading more, meant = all new=20 prisoners. It then lists the reasons for the policy, but they are = more in=20 the nature of factors to be considered when deciding whether to strip = search a=20 new prisoner. The policy concludes by stating that strip searches = will not=20 usually be done on bylaw offenders, which suggests that the opening = words of the=20 policy did not mean that all new prisoners are to be strip = searched. The=20 policy does not mention drunken persons.

[84] = ;=20 On reading the policy as a whole, it is my view that the = =93reasons=94 are=20 actually factors to be considered in deciding whether a strip search = should be=20 conducted. However, it appears that Mr. Coulson or someone else = decided=20 that all new entrants to the Jail, other than bylaw offenders and = drunken=20 persons, represent a possible danger to personnel and prisoners in the=20 Jail.

[85] = ;=20 If the factors are applied to Mr. Ward, he would not fit the = criteria for=20 a strip search any more than bylaw offenders and drunken persons. = He did=20 not commit a serious offence, he was not charged with an offence = associated with=20 evidence being hidden on the body, no weapons were involved and Mr. Ward = was not=20 known to be violent or to carry weapons. Constable Prasobsin = testified=20 that Mr. Ward had calmed down by the time he reached the Jail, and there = was no=20 reason to believe that Mr. Ward represented a danger to the personnel = and=20 prisoners in the Jail. As there was no threat to the safety and = security=20 of the Jail, I conclude that the strip search of Mr. Ward was not in = accordance=20 with the Corrections Branch=92s written policy.

[86] = ;=20 I conclude that Mr. Ward=92s Charter right under s. 8 to = be secure=20 against unreasonable search was infringed because his strip search was = not in=20 accordance with the Corrections Branch=92s written policy or, if it was = conducted=20 in accordance with it, the policy was unreasonable to permit strip = searches of=20 persons being held for a breach of the peace in the absence of any = threat to the=20 safety and security of the Jail.

Assault by Sergeant=20 Gatto

[87] = ;=20 Counsel for Mr. Ward submits that when Sergeant Gatto responded = to Mr.=20 Ward=92s request to speak with his lawyer by saying =93we can do this = the hard way=20 or the easy way, you=92re not helping things=94, he was threatening to = use force=20 against Mr. Ward and thereby committed an assault. He also submits = that=20 Sergeant Gatto is liable for assault and battery because the strip = search of Mr.=20 Ward by the corrections staff was done at his direction. I do not = agree=20 with either of these submissions.

[88] = ;=20 In order for words alone to constitute an assault, the words must = create=20 an apprehension of imminent harm: see Linden & Feldthusen, = Canadian Tort=20 Law, at p. 48. If Sergeant Gatto=92s words had been = spoken in=20 response to Mr. Ward refusing to disrobe at the time of the strip = search, they=20 may have been sufficient to create an apprehension of imminent = harm. =20 However, the words were spoken in response to Mr. Ward=92s request to = speak to his=20 lawyer, and there was no inference that Mr. Ward would be harmed if he = continued=20 to ask for his lawyer.

[89] = ;=20 There is no evidence that anyone assaulted or battered Mr. Ward = in=20 connection with the strip search. He was asked to remove his = clothes and=20 he complied until all of his clothes other than his underwear were taken = off. When he refused to take off his underwear, there was no = threat of=20 harm and, indeed, he was told that he did not have to take them = off. He=20 was never touched during the strip search. In addition, the strip = search=20 was done pursuant to the Corrections Branch=92s policy and was not done = under=20 Sergeant Gatto=92s direction. During his examination for = discovery, Sergeant=20 Gatto stated that he did not know if he had the authority to make the = decision=20 to stop the strip search. In his cross examination, Mr. Coulson = disagreed=20 that the officer in charge was in charge of the Jail and said that the = persons=20 in charge of the Jail were the corrections supervisor and the officer in = charge.

[90] = ;=20 Sergeant Gatto did not commit the torts of assault or=20 battery.

Seizure of Mr. Ward=92s=20 Vehicle

[91] = ;=20 Mr. Ward=92s car was towed from its parking place near the = intersection of=20 Taylor and Keefer Streets to the police compound for the purpose of = securing it=20 until it could be searched. It was never searched because = Detectives=20 Brydon and Petit decided that there were insufficient grounds to obtain = a search=20 warrant.

[92] = ;=20 If Mr. Ward had been lawfully arrested for assault or attempted = assault=20 on Taylor Street, it may be arguable that it was reasonable = for the=20 police to seize his vehicle in order to secure it so that evidence in = the=20 vehicle would not go missing. However, Mr. Ward was not lawfully = arrested=20 for assault or attempted assault, and the seizure of his car was not=20 reasonable. The seizure of the car cannot be justified on the = basis that=20 Mr. Ward was under arrest for breach of peace.

[93] = ;=20 I conclude that Mr. Ward=92s right under s. 8 of the = Charter to be=20 secure against unreasonable seizure of his belongings was=20 infringed.

Negligence

[94] = ;=20 In the Statement of Claim, Mr. Ward pleaded negligence against = both of=20 the City of Vancouver and the Provincial Government. The plea = against the=20 City of Vancouver was that the police officers were grossly = negligent. =20 This plea was probably directed at s. 21 of the Police Act, = R.S.B.C.=20 1996, c. 367, which I will be discussing in the context of the personal=20 liability of the police officers, but another portion of the Statement = of Claim=20 alleged that Mr. Ward suffered loss and damage as a result of the = negligence of=20 each of the Defendants. The plea against the Provincial Government = is that=20 it failed to adequately train, supervise and instruct the corrections = staff at=20 the Jail.

[95] = ;=20 Counsel for Mr. Ward did not make any submissions with respect to = the=20 negligence claims and did not react when counsel for the City of = Vancouver made=20 the observation that it appeared that Mr. Ward was not pursuing the = negligence=20 claims. As the claims were not formally withdrawn, I will deal = with them=20 briefly.

[96] = ;=20 The claims of negligence fail for two reasons. First, any = duty owed=20 by the City of Vancouver and the Provincial Government was a duty owed = to the=20 general public and was not a private law duty owed to Mr. Ward for the = purposes=20 of the tort of negligence: see Ribeiro v. Vancouver (City), 2005 = BCSC=20 395. Second, there was no evidence on the applicable standard of = care: see=20 Roy v. British Columbia (Attorney General), 2005 BCCA=20 88.

Personal Liability of = Police=20 Officers

[97] = ;=20 The City of Vancouver concedes that it is vicariously liable for = any=20 torts committed by the police officers by virtue of s. 20 of the = Police=20 Act. What is in dispute is whether any of the police officers = are=20 personally liable. Subsection 21(2) and (3) of the Police = Act read=20 as follows:

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

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

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

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

[98] = ;=20 The only wrongdoing I have found to have been committed by the = police=20 officers is false imprisonment as a result of the failure to release Mr. = Ward=20 for a period of 3 =BD to 4 hours after the Prime Minister left the = opening=20 ceremony for the Millennium Gate. While Sergeant Gatto, as the = officer in=20 charge at the Jail, was charged with the responsibility of releasing Mr. = Ward at=20 the appropriate time, it was Sergeant Kelly who instructed Sergeant = Gatto to=20 continue holding Mr. Ward =93pending investigation=94 after the Prime = Minister had=20 left the area.

[99] = ;=20 The only decision referred to me on this point was Walkey = (Guardian ad=20 litem of) v. Canada (Attorney General), [1997] B.C.J. No. 599 (QL)=20 (S.C.). In that case, the police unlawfully arrested and = imprisoned three=20 girls in order to teach them a lesson. Vickers J. held that the = police=20 officers could not avail themselves of the protection afforded by s. 21 = because=20 the tort of false arrest and imprisonment by its very nature involved = misconduct=20 that is wilful.

[100] =20 In Walkey, the police officers knowingly arrested and = imprisoned=20 the plaintiffs when they knew that no charge would be laid. They = knew that=20 the arrest and imprisonment of the plaintiffs was wrong. Their = actions=20 clearly constitute wilful misconduct.

[101] =20 An oft cited passage in relation to the meaning of wilful = misconduct is=20 from the decision of McCulloch v. Murray, [1942] S.C.R. 141, = where Duff=20 C.J.C. said the following at p. 145:

All these phrases, gross = negligence,=20 wilful misconduct, wanton misconduct, imply conduct in which, if there = is not a=20 conscious wrong doing, there is a very marked departure from the = standards by=20 which responsible and competent people in charge of motor cars = habitually govern=20 themselves.

[102] =20 In my view, a clearer description of the meaning of wilful = misconduct is=20 contained in R. v. Boulanger, 2006 SCC 32, a case dealing with = the=20 criminal offence of breach of trust by a public officer. The = Supreme Court=20 of Canada held that it is necessary to have reference to the common law=20 authorities on misfeasance in public office in considering the = offence. In=20 this regard, the Court summarized parts of an English authority, = Attorney=20 General=92s Reference (No. 3 of 2003), [2004] W.L.R. 451 (Eng. = C.A), at=20 =B6 27:

Wilful misconduct was held = to mean=20 =93deliberately doing something which is wrong knowing it to be wrong or = with=20 reckless indifference as to whether it was wrong or not=94 (para. 28), = and=20 recklessness to mean =93an awareness of the duty to act or a subjective=20 recklessness as to the existence of the duty=94 (para. 30). The = recklessness=20 test was said to apply to the determination of whether a duty arises in = the=20 circumstances, as well as to the conduct of the defendant if it=20 does.

Although the Court did not specifically adopt = or approve=20 of these meanings, it did not express any disapproval of = them.

[103] =20 In the present case, there is no evidence that either Sergeant = Kelly or=20 Sergeant Gatto decided not to release Mr. Ward when they knew that he = should=20 have been released. It is not sufficient to establish that their = acts=20 constituted the commission of an intentional tort. It must also be = established that they committed the tort knowing it to be wrong or with = reckless=20 indifference as to whether it was wrong or not.

[104] =20 I find that the neither Sergeant Kelly nor Sergeant Gatto knew = that it=20 was wrong to continue imprisoning Mr. Ward after the Prime Minister left = the=20 area and that neither of them continued the imprisonment with reckless=20 indifference in that regard. They were not guilty of wilful = misconduct,=20 with the result that neither of them is personally liable for the tort = of false=20 imprisonment.

Damages in Addition to = Declaration=20 of Charter Breach

[105] =20 Counsel for the Provincial Government argues that, if there was a = breach=20 of the Charter without the commission of a tort, no damages = should be=20 awarded. Counsel relies in this regard on the decision in = Wynberg v.=20 Ontario (2006), 269 D.L.R. (4th) 435 (Ont. C.A.). In = connection with=20 the strip search of Mr. Ward and the seizure of his car, I have found a = breach=20 of s. 8 of the Charter but that none of the pleaded torts was=20 committed.

[106] =20 Subsection 24(1) of the Charter provides that anyone whose = rights=20 have been infringed may apply to the court to obtain such remedy as the = court=20 considers appropriate and just in the circumstances.

[107] =20 In Wynberg, the plaintiffs were autistic children, aged = six years=20 of age and older, who were complaining that funded intensive behavioural = intervention provided by the Ontario Ministry of Community and Social = Services=20 was limited to autistic children between the ages of two and five. = The=20 Ontario Court of Appeal held that there was no breach of s. 7 or 15 of = the=20 Charter, but went on to comment on the decision of the trial = judge to=20 award damages as well as granting a declaratory = remedy.

[108] =20 The Court quoted at length at =B6 192 from the decision in = Mackin v.=20 New Brunswick (Minister of Finance); Rice v. New=20 Brunswick, [2002] 1 S.C.R. = 405, which=20 held that damages should not normally be granted following a declaration = that=20 legislation is unconstitutional in the absence of negligence, bad faith = or abuse=20 or power. The Court continued as follows at =B6 = 193:

While=20 the rule against combining damages with declaratory relief has been = articulated=20 in cases where the declaration of invalidity is sought against = legislation, we=20 see no principled basis on which to limit the application of this rule = to cases=20 where a statute, rather than some other government action, is declared=20 unconstitutional. Support for this view can be found in the above = quoted=20 passage from Mackin, in which the Supreme Court refers to the = "exercise=20 of their powers" and "government action", rather than legislation per = se.=20 Moreover, the reasons underlying the general prohibition against = damages=20 where declaratory relief is granted apply with equal force whether the=20 declarations are made as a result of a challenge to legislation under s. = 52 of=20 the Constitution Act, 1982 or, as in this case, where the = challenge is to=20 some action taken under legislation that is said to infringe a = Charter=20 right and relief is sought pursuant to s. 24(1) of the=20 Charter.

[109] =20 In the case at bar, I have not declared any legislative provision = to be=20 unconstitutional. I have held that the search of Mr. Ward by the=20 corrections staff of the Provincial Government pursuant to s. 19 of the=20 Correctional Centre Rules and Regulations and the seizure of Mr. = Ward=92s=20 car were unconstitutional because they violated s. 8 of the=20 Charter.

[110] =20 In my opinion, the Ontario Court of Appeal was not extending the=20 application of Mackin to all types of breaches of the=20 Charter. Rather, it was extending the application of = Mackin=20 to policy decisions of the government which are held to be = unconstitutional.=20 The subject matter of Wynberg was the policy decision of = the=20 government to extend the intensive behaviour intervention program only = to=20 autistic children between the ages of two and five.

[111] =20 There have been a number of judgments which have granted damages = for=20 violations of the Charter without proof of malice, bad faith or=20 negligence: see, for example, Morin v. Prince Edward Island Regional=20 Administrative Unit No. 3 School Board (2005), 254 D.L.R. (4th) 410=20 (P.E.I.S.C.A.D.), Hawley v. Bapoo (2005), 76 O.R. (3d) 649 (Ont. Sup. Ct.) and = Bevis=20 v. Burns (2006), 269 D.L.R. (4th) 696=20 (N.S.C.A.). With specific reference to strip searches where no = tort has=20 been committed, the Federal Court held in Blouin v. R. (sub. = nom.=20 Blouin v. Canada) (1991), 51 F.T.R. 194 (T.D.) at =B6 24 that a = person who was=20 unreasonably strip searched was entitled to damages in addition to a=20 declaration. If the Ontario Court of Appeal had intended in = Wynberg=20 to disapprove of these and other decisions, one would have expected = more=20 than a single paragraph of obiter dicta making no reference to = any of the=20 contrary decisions.

[112] =20 Counsel for the City of Vancouver makes a similar = submission. =20 Relying on Stenner v. British Columbia (Securities Commission) = (1993), 23=20 Admin. L.R. (2d) 247 (B.C.S.C.), counsel says that an award of damages = is not=20 appropriate under s. 24(1) where the breach of the Charter was a = result=20 of good faith action. However, that decision is not comparable to = the=20 present case. It involved a statutory authority applying valid = legislation=20 in good faith. It is more akin to the Wynberg situation, = where it=20 was alleged that unconstitutional policy decisions were made pursuant to = constitutional legislation.

[113] =20 I conclude that Mr. Ward is entitled to awards of damages with = respect to=20 the strip search and the seizure of his vehicle in addition to a = declaration=20 that his rights under s. 8 of the Charter were=20 infringed.

Quantum of=20 Damages

[114] =20 The final matter is the determination of the amount of damages to = which=20 Mr. Ward is entitled in respect of his false imprisonment, the strip = search of=20 his person and the seizure of his vehicle.

[115] =20 In Hanisch v. Canada, 2004 BCCA 539, the B.C. Court of = Appeal=20 discussed the function of non-pecuniary damages in a case involving = false arrest=20 and false imprisonment:

=B6=20 60 Non-pecuniary damages are intended to = compensate for=20 the deprivation of liberty, public humiliation and loss of reputation = and mental=20 anguish. As such they reflect the nature of the events, the = character of=20 the person wronged and the community where the events=20 occurred.

The Court of = Appeal upheld=20 the trial judge=92s award of $25,000 for non-pecuniary damages, but set = aside the=20 trial judge=92s award of $35,000 for punitive damages. In the = latter regard,=20 the Court of Appeal quoted the following passage from Hill v. Church = of=20 Scientology of Toronto, [1995] 2 S.C.R. 1130:

=B6=20 196 Punitive damages may be awarded in situations where the=20 defendant's misconduct is so malicious, oppressive and high-handed that = it=20 offends the court's sense of decency. Punitive damages bear no = relation to=20 what the plaintiff should receive by way of compensation. Their = aim is not=20 to compensate the plaintiff, but rather to punish the defendant. = It is the=20 means by which the jury or judge expresses its outrage at the egregious = conduct=20 of the defendant. They are in the nature of a fine which is meant = to act=20 as a deterrent to the defendant and to others from acting in this = manner.=20 It is important to emphasize that punitive damages should only be = awarded=20 in those circumstances where the combined award of general and = aggravated=20 damages would be insufficient to achieve the goal of punishment and=20 deterrence.

The Court of Appeal held = that the=20 police officer=92s conduct did not warrant punitive damages because his = actions=20 reflected immature judgment, inadequate training and=20 inexperience.

[116] =20 In addition to Hanisch, counsel for Mr. Ward relied upon = the=20 decisions of Phillips v. Nagy, 2006 ABCA 227, the Hill = case,=20 St. Pierre v. Pacific Newspaper Group Ltd., 2006 BCSC 241 and = Dix v.=20 Canada (Attorney General), [2003] 1 W.W.R. 436 (Alta. Q.B.). = In=20 Phillips v. Nagy, the Alberta Court of Appeal upheld an award of = $150,000=20 for general damages and $50,000 for punitive damages in a situation = involving=20 false imprisonment and an unlawful strip search.

[117] =20 Hill was a defamation case heard by a jury. = The=20 Supreme Court of Canada upheld the jury=92s awards of $300,000 for = general=20 damages, $500,000 for aggravated damages and $800,000 for punitive=20 damages. In addition to making the above comment regarding = punitive=20 damages, the Court made the following comments about aggravated=20 damages:

=B6 188 Aggravated damages may be = awarded in=20 circumstances where the defendants' conduct has been particularly = high-handed or=20 oppressive, thereby increasing the plaintiff's humiliation and anxiety = arising=20 from the libellous statement ...

=B6 = 189 =20 These damages take into account the additional harm caused to the = plaintiff's=20 feelings by the defendant's outrageous and malicious conduct. Like = general=20 or special damages, they are compensatory in nature.

[118] =20 In St. Pierre, another defamation case, the plaintiff was = a lawyer=20 and his picture was accidentally placed with a newspaper article about = the=20 terrorist group, Hezbollah. This Court awarded him $35,000 in=20 damages.

[119] =20 Dix was a malicious prosecution case, where Mr. = Dix spent=20 23 months in jail following a misguided investigation by the = police. =20 Counsel for Mr. Ward relies on this case for the fact that $300,000 in = punitive=20 damages were awarded. The sum of $100,000 of the punitive damages = was=20 awarded on the basis that the police had treated Mr. Dix in a = high-handed manner=20 which would offend and shock the sensibilities of most citizens. = The=20 remaining $200,000 in punitive damages was awarded against a Crown = prosecutor=20 who knowingly relied on a false letter at two bail = hearings.

[120] =20 Counsel for the City of Vancouver relies on decisions with more = modest=20 awards: Hewer v. Paquette, [1990] B.C.J. No. 1549 (QL) (S.C.), = Forster=20 v. MacDonald (1993), 108 D.L.R. (4th) 690 (Alta. Q.B.), Nolan v. = Toronto=20 (Metropolitan) Police Force, [1996] O.J. No. 1764 (QL) (Ont. Ct. of = Jus.=20 (Gen. Div.)) and King v. Ontario (Ministry of Attorney General), = [2002]=20 O.J. No. 4766 (QL) (Ont. Sup. Ct. of Jus.). The judgments in these = cases=20 awarded general damages for wrongful imprisonment in the amounts of = $1,000,=20 $8,000, $5,000 and $2,500, respectively.

[121] =20 Counsel for Mr. Ward submits that in assessing the damages, I = should take=20 into account that his client was a lawyer who was shown on a television=20 broadcast being bustled away in handcuffs by the police. He also = argues=20 that I should award aggravated, exemplary and/or punitive damages as a = result of=20 the undignified way Mr. Ward was treated in front of the news media, = which=20 filmed him in handcuffs and broadcast the footage on=20 television.

[122] =20 I have held that the police were justified in arresting Mr. Ward = for=20 breach of the peace. Mr. Ward caused the breach of the peace, = which=20 brought the attention of the TV crew to him. I would add that very = few=20 people probably recognized Mr. Ward from the Global TV broadcast and = that the=20 amount of publicity devoted to the event was largely generated by Mr. = Ward=92s=20 subsequent interviews with the press and television = media.

[123] =20 The police were entitled to imprison Mr. Ward when he was = arrested for=20 breach of the peace. The commission of the tort of wrongful = imprisonment=20 arose from the failure of the police to release him within a reasonable = time=20 after the Prime Minister had left the area of the ceremony. In = assessing=20 damages for wrongful imprisonment, therefore, I am not assessing damages = for the=20 imprisonment itself, but for the length of the imprisonment. In = all of the=20 circumstances, I award Mr. Ward the sum of $5,000 as general damages for = the=20 wrongful imprisonment.

[124] =20 I do not regard the police=92s conduct as being malicious, = high-handed or=20 oppressive. Their actions would not shock the sensibilities of = reasonable=20 observers, and the Court=92s sense of decency is not offended. = There is no=20 evidence to support the suggestion that the police targeted Mr. Ward as = a result=20 of the fact that he had acted for other persons having complaints = against the=20 police. All three of Constable Cope, Sergeant Kelly and Constable=20 Prasobsin testified that they believed at the time, and still believe, = that Mr.=20 Ward was involved in a plan to throw a pie at the Prime Minister, and I = find=20 that they are sincere in their belief (which is not to say that I share = their=20 belief). A proper basis to award aggravated, exemplary or punitive = damages=20 does not exist.

[125] =20 I turn next to the matter of damages for the strip search. =20 Phillips v. Nagy, where $150,000 in general damages were awarded, = involved egregious circumstances. The plaintiff suffered the = indignity of=20 body cavity searches, three enemas and induced vomiting. She = suffered=20 psychological injuries, and became a dependent adult who was unlikely to = experience a full recovery. This is a far cry from the manner and = effect=20 of the strip search of Mr. Ward.

[126] =20 In addition to the authorities relied upon by counsel, I have = considered=20 the amounts of the damages awarded in Blouin and = Ilnicki. In=20 Blouin, the Federal Court granted general damages in the amount = of $5,000=20 for a strip search conducted of a penitentiary guard by his = superiors. The=20 plaintiff had been required to take off all of his clothes and do a full = turn in=20 front of two superiors. In Illnicki, the plaintiff had = refused to=20 co-operate with the strip search, and the police used force in taking = off all of=20 his clothes, including his underwear. As a result of the force = used by the=20 police, the plaintiff sustained injuries to his arm and shoulder. = The=20 Alberta Queen=92s Bench (whose decision is cited as 2003 ABQB 465) = awarded the=20 plaintiff $5,000 damages for the breach of his s. 8 rights and $6,000 = damages=20 for pain and suffering. The quantum of the damages was not = cross-appealed=20 when the police appealed the finding of their liability to the Alberta = Court of=20 Appeal.

[127] =20 In the present case, the strip search of Mr. Ward did not involve = the=20 removal of his underwear and exposure of his genitals. While the = Supreme=20 Court of Canada commented at =B6 90 of Golden that strip searches = are=20 inherently humiliating and degrading for detainees, a strip search which = does=20 not involve the removal of the detainee=92s underwear is less = humiliating and=20 degrading than searches involving the removal of all clothing such as = the strip=20 searches conducted in Blouin and Ilnicki. Although = Mr. Ward=20 testified that the whole experience shook his core beliefs about the = rule of=20 law, he did not suffer any physical or psychological injury as a result = of the=20 strip search. In view of all of the circumstances in relation to = the strip=20 search, I award Mr. Ward the sum of $5,000 against the Provincial = Government for=20 the infringement of his right under s. 8 of the Charter to be = secure=20 against unreasonable search.

[128] =20 The actions of the corrections staff in conducting the strip = search of=20 Mr. Ward were not malicious, high-handed or oppressive. Mr. = Coulson=20 testified that the Corrections Branch received legal advice after the = decision=20 in Golden was made that it did not have to change its policy = regarding=20 strip searches. I make no order for aggravated, exemplary or = punitive=20 damages.

[129] =20 The final issue with respect to damages relates to the = unreasonable=20 seizure of Mr. Ward=92s car. He did not suffer any substantive = damage as a=20 result of the seizure. I award him nominal damages of=20 $100.

CONCLUSION

[130] =20 I make the following declarations and awards of=20 damages:

(a) = I declare=20 that Mr. Ward=92s rights under ss. 7 and 9 of the Charter were = infringed as=20 a result of his wrongful imprisonment;

(b) = I declare=20 that Mr. Ward=92s rights under ss. 7 and 8 of the Charter were = infringed as=20 a result of his strip search and the unreasonable seizure of his=20 vehicle;

(c) = I award=20 damages to Mr. Ward against the City of Vancouver for his wrongful = imprisonment=20 and the unreasonable seizure of his vehicle in the amount of $5,100;=20 and

(d) = I award=20 damages to Mr. Ward against the Provincial Government in respect of his = strip=20 search in the amount of $5,000.

[131] =20 Counsel asked to reserve their right to make submissions on the = topic of=20 costs until following the release of my judgment on the merits of the=20 action. If all counsel agree, these submissions may be made in=20 writing. If any of the counsel wishes to make oral submissions,=20 arrangements for a hearing can be made through Trial = Division.

=93D. = Tysoe,=20 J.=94
The Honourable Mr. Justice D. = Tysoe