Subject: 2007 BCSC 3 Ward v. City of Vancouver
From: <Saved by Windows Internet Explorer 7>
Date: Sat, 15 Mar 2008 04:41:57 -0700

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Ward v. City of Vancouver,

2007 BCSC 3

Date: 20070102
Docket: S030038
Registry: Vancouver

Between:

Alan Cameron Ward

Plaintiff

And

City of Vancouver, Her Majesty the Queen in Right of
the Province of British Columbia, as represented by
the Ministry of Attorney General and Ministry of Public
Safety and Solicitor General, Her Majesty in Right of
Canada, Attorney General of Canada, Sergeant Kelly,
Constable Prasobsin, Constable Fodor, Sergeant Gatto,
Constable Cope and other unidentified members of
the Vancouver Police Department, Royal Canadian
Mounted Police and Jail Staff of the Vancouver Jail

Defendants

Before: The Honourable Mr. Justice Tysoe

Reasons for Judgment

Counsel for the Plaintiff:

Brian M. Samuels

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

Tomasz M. Zworski

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

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

Dates and Place of Trial:

November 6 – 10
and 22, 2006
Vancouver, B.C.

TABLE OF CONTENTS

Heading

¶

INTRODUCTION

1

BACKGROUND

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

4

7
11
18
21
24
31

ISSUES

35

FINDINGS OF FACT

37

DISCUSSION

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

47

52
57
66
72
87
91
94
97
105
114

CONCLUSION

130

INTRODUCTION

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

[2]                Mr. Ward was arrested by the police on Taylor Street and taken by a paddy wagon to the Vancouver City Jail behind the Provincial Courthouse at 222 Main Street (the “Jail”).  He was required to remove all of his clothes except his underwear, and he was held in the jail for approximately 4 ½ hours.  His car was impounded and searched by the police.

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

BACKGROUND

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

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

There’s a, uh, white male overheard, uh, planning to, uh, throw a pie at the Prime Minister.  I’ll just give you a description.  He was last seen in the area of the King Kong Kit Kat, uh, sign, uh, on the corner of, uh, Pender and Taylor.  Break. …  He’s described as a white male, 30 to 35 years, 5 9, dark shorter hair wearing a white golf shirt or t-shirt with some red on it.  Break. …  He, uh, was wearing, uh, either jeans or shorts, they weren’t sure, and I guess he was, uh, overheard planning to, uh, throw a pie at the Prime Minister.  If anybody locates this individual, can you let us know.

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

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

Testimony of Mr. Ward

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

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

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

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

Testimony of Sergeant Cope

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

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

[13]            Constable Cope testified that he said words to the effect of whether Mr. Ward had some identification he could show him.  Mr. Ward became immediately agitated and angry, and told Constable Cope in a loud voice that he had no right to ask for his identification.  Constable Cope explained that he was investigating an assault and believed that Mr. Ward may be involved in some sort of pie throwing incident.  Mr. Ward said loudly that Constable Cope couldn’t investigate him or screamed “what am I under arrest for” every 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 landing on the Constable’s face.  Constable Cope then radioed for backup assistance, and Sergeant Kelly arrived on the scene.

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

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

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

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

Testimony of Sergeant Kelly

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

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

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

Testimony of Constable Prasobsin

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

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

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

Events at the Jail

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

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

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

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

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

·         the seriousness of the offence

·         charges against the prisoner are associated with evidence hidden on the body

·         at the time of the arrest, weapons were involved

·         the accused is known to be violent and/or to carry weapons

·         there is possible danger to personnel and prisoners in the Jail

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

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

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

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

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

Other Events

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

[32]            Detectives Brydon and Petit then went to the Jail to release Mr. Ward.  They told him that he was being released pending further investigation.  The Detectives drove Mr. Ward to the police compound and arranged for the release of his car.  Mr. Ward was released from Jail approximately 4 ½ hours after he was arrested and several hours after the Prime Minister had left the area following the ceremony.

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

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

ISSUES

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

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

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

(c)  was there a breach of Mr. Ward’s rights under s. 9 of the Charter?

(d)  was the tort of assault committed?

(e)  was the tort of battery committed?

(f)   was the tort of false imprisonment committed?

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

(h)  are the police officers personally liable?

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

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

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

FINDINGS OF FACT

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

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

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

[40]            In assessing the testimony of Mr. Ward and the police officers, I looked to evidence outside their testimony in order to determine whether it was more 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 of the disputed events which occurred on Taylor Street.  The evidence which has led me to prefer the testimony of the police officers on the major discrepancies in the evidence includes the following:

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

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

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

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

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

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

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

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

[43]            Following is the evidence of Sergeant Kelly regarding Mr. Ward’s arrest:

Q         Was he under arrest at that point?

A          Yes.

Q         And what was he under arrest for?

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

DISCUSSION

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

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

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

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

Sections 8 through 14 of the Charter are illustrative of deprivations of the rights articulated in s. 7: see Reference 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 breach of s. 7.  The converse is not true because s. 7 provides residual protection for circumstances which do not fall within ss. 8 through 14: see Thomson Newspapers Ltd. v. Canada (Director of Investigation & Research, Restrictive Trade Practices Commission, [1990] 1 S.C.R. 425.

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

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

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

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

Initial Detention of Mr. Ward

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

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

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

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

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

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

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

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

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

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

Arrest of Mr. Ward

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

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

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

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

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

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

[63]            There was no evidence of a pie being found in the possession of Mr. Ward 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 different from the suspect’s description.  Although the police officers testified that they believed that Mr. Ward was involved in a plan to pie the Prime Minister, they did not testify that they had reasonable grounds to believe that Mr. Ward had done anything for the purpose of carrying out an intention to assault the Prime Minister.

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

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

Imprisonment of Mr. Ward

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

[67]            The exact time the Prime Minister left the ceremony is not clear on the admissible evidence.  Constable Cope testified that he expected the Prime Minister to be at the ceremony for approximately half an hour.  As the Prime Minister’s motorcade was located near Constable Cope’s motorcycle, it is clear that the Prime Minister had not left the area before Mr. Ward was put in 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, but I cannot determine on the evidence whether the Prime Minister left the area before or after Mr. Ward was strip searched.

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

[69]            In Mann, the majority held that an investigative detention must be of brief duration (¶ 22) and cannot become a de facto arrest (¶ 35).  The detention of Mr. Ward was not brief.  It may be argued that it was reasonably necessary to have detained Mr. Ward until such time as his vehicle could be secured so that he did not have the opportunity to drive away with incriminating evidence.  I need not decide if this was a legitimate justification for detaining Mr. Ward because he was detained for another 3 ½ hours after his vehicle was secured.

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

[71]            I conclude that Mr. Ward was unlawfully imprisoned for a period of 3 ½ to 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 Charter not to be arbitrarily imprisoned was infringed when he was kept in the Jail after the Prime Minister had left.

Strip Search of Mr. Ward

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

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

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

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

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

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

¶ 80     In my view, once the detainee is mixed with the general prison population in circumstances where he or she is not directly supervised by a corrections officer, and in hand cuffs or other forms of restraint, a strip search will normally be justified given the security concerns present in the Vancouver jail environment.  This will be the case regardless of whether the detainee presents any particular safety concerns.  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 suitable for release on a promise to appear.

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

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

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

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

[77]            Counsel for the Provincial Government says that, if it were not for the decision of the B.C. Court of Appeal in Fieldhouse v. Kent Institution (1995), 98 C.C.C. (3d) 207 (B.C.C.A.) (which dealt with a program of random 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 appeal, he will argue that Conway is the governing authority.  Although I need not decide the point in view of the position of counsel for the Provincial Government that I am bound by Fieldhouse, I observe that Conway involved frisk searches of clothed male prisoners by female guards and did not deal with the reasonableness of strip searches.

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

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

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

(a)        the director so authorizes, or

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

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

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

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

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

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

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

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

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

·         the seriousness of the offence

·         charges against the prisoner are associated with evidence hidden on the body

·         at the time of the arrest, weapons were involved

·         the accused is known to be violent and/or to carry weapons

·         there is possible danger to personnel and prisoners in the Jail

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

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

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

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

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

Assault by Sergeant Gatto

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

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

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

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

Seizure of Mr. Ward’s Vehicle

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

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

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

Negligence

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

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

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

Personal Liability of Police Officers

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

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

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

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

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

[98]            The only wrongdoing I have found to have been committed by the police officers is false imprisonment as a result of the failure to release Mr. Ward for a period of 3 ½ to 4 hours after the Prime Minister left the opening ceremony for the Millennium Gate.  While Sergeant Gatto, as the officer in charge at the Jail, was charged with the responsibility of releasing Mr. Ward at the appropriate time, it was Sergeant Kelly who instructed Sergeant Gatto to continue holding Mr. Ward “pending investigation” after the Prime Minister had left the area.

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

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

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

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

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

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

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

[103]        In the present case, there is no evidence that either Sergeant Kelly or Sergeant Gatto decided not to release Mr. Ward when they knew that he should have been released.  It is not sufficient to establish that their acts 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 indifference as to whether it was wrong or not.

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

Damages in Addition to Declaration of Charter Breach

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

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

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

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

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

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

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

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

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

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

Quantum of Damages

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[125]        I turn next to the matter of damages for the strip search.  Phillips v. Nagy, where $150,000 in general damages were awarded, involved egregious circumstances.  The plaintiff suffered the indignity of body cavity searches, three enemas and induced vomiting.  She suffered 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 of the strip search of Mr. Ward.

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

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

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

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

CONCLUSION

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

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

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

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

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

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

“D. Tysoe, J.”
The Honourable Mr. Justice D. Tysoe