On May 22, 2020, the BC Supreme Court issued its reasons in Joseph v. Meir, 2020 BCSC 778 with additional reasons on July 6, 2020. The case concerned a plaintiff who sought damages against an RCMP officer and the Attorney General of Canada in relation to events that took place at Marks Works Warehouse in Smithers, BC. She alleged she was injured when the officer improperly detained and arrested her believing she stole a scarf from the store. She claimed damages for false arrest, false imprisonment, assault and battery and violation of her Charter rights.
At trial, the officer and the Attorney General maintained the plaintiff was properly detained and that the arrest was lawful and reasonable. They argued s. 25 of the Criminal Code protected them from liability. To come within the protection of s. 25, they were required to establish that the officer was authorized by law to arrest the plaintiff, that he had reasonable grounds for the arrest, and that no more force was used than necessary during the detention and arrest.
The plaintiff's evidence was that, at 61 years of age, she required a walker for mobility. She had a fused ankle and various medical issues, including chronic pain. On the day of the arrest, she saw someone she recognized in the store. The two women shopped in the same area of the store while speaking to each other for a while. The store manager thought they were together and, when the manager saw the younger woman put a pink scarf in her bag, she confronted both women. The younger woman pulled the scarf out of the bag and threw it to the ground before fleeing the store. The plaintiff told the manager she had a scarf around her neck that she was buying.
A staff member called the police and the officer was dispatched to the store. He was told there were two suspects, a younger woman who had run from the store and an older woman who was still in the store. He attended the store without pursuing the woman who had fled. When he arrived, the plaintiff was in line to pay at the cash register. The manager met the officer and provided him with information about the allegations.
The officer waited until the plaintiff had made her purchases. As she left the store, he asked to speak to her but she refused to stop or provide information to him. She told the officer she had done nothing wrong and did not need to speak to him. The officer radioed his partner who attended the store to provide backup.
In the meantime, the officer attempted to place the plaintiff in handcuffs. She resisted, holding her hands clasped to her front, and turning away from him as he tried to take her arms back for cuffing. He took her to the ground and she continued to resist while she was on the ground. Eventually he stopped the struggle without handcuffing her and helped her to her feet. At approximately the same time, his partner arrived on scene.
The officer searched the plaintiff's belongings and found no stolen merchandise. She was released without charges and immediately alleged she had sustained injuries in the struggle.
The officer's evidence was that he initially told the plaintiff she was being detained on suspicion of theft. When she refused to speak to him, he told her she was under arrest for theft. When he moved to handcuff her, she turned and tried to walk back into the store. He testified he had arrested the plaintiff pursuant to section 495 of the Criminal Code, which permits an officer to arrest a person without a warrant if, on reasonable grounds, the officer believes the person has committed an indictable offence.
In the result, after weighing the evidence, the trial judge was not satisfied the officer had clearly told the plaintiff she was detained for theft; although, she accepted that he said something to her about shoplifting or theft which caused her to try to return to the store.
The judge was also not satisfied the officer had turned his mind to whether there were in fact reasonable grounds to arrest the plaintiff. She concluded that even if the officer was subjectively satisfied, objectively there were no reasonable grounds to arrest the plaintiff on the evidence. She found at most there was a suspicion based on the manager's feeling the plaintiff had concealed something.
In support of this conclusion, the judge noted the officer was unclear whether he asked the manager if the plaintiff had concealed any items. On that basis, the judge concluded the officer did not pursue the inquiries necessary to determine whether reasonable grounds to make the arrest existed in the circumstances. She held that a mere suspicion does not provide reasonable grounds for an arrest. Because the officer did not have reasonable grounds to arrest the plaintiff, the arrest was not lawful for the purposes of s. 25 of the Criminal Code.
In addition to a lawful arrest, the officer was required to show that during the arrest he had used no more force than was necessary. On the evidence, the judge concluded the officer had not established the force used was reasonable. She found that a younger, fit person may need to be taken to the ground and have cuffs applied, particularly where backup is not immediately available, however, the plaintiff was 61 years old and used a walker. The officer was not expected to know about the plaintiff's health conditions, but he was expected to consider that she had obviously limited mobility. In the result, the judge concluded there were options other than the force used available to the officer and it was not necessary for him to physically subdue the plaintiff. He was afforded no protection under s. 25 of the Criminal Code.
The judge concluded the plaintiff was assaulted, confined and injured during the struggle with the officer. She awarded general damages in the amount of $50,000 for false arrest without reasonable grounds, false imprisonment against her will and battery. She also awarded Charter damages in the amount of $5,000 on the basis that the plaintiff was entitled to a vindication of her rights and to deter future Charter breaches. She declined to award punitive and aggravated damages because, although the officer acted improperly, he did not do so in a malicious or high-handed manner.
In subsequent reasons, the judge set aside the Charter damages award and increased the general damages award by $5,000 because the Attorney General of British Columbia had not been served with a notice of constitutional question in accordance with the Constitutional Question Act. She also amended her initial order, finding the officer had acted in accordance with his duties as a police officer such that the damages award was properly against the Minister of Public Safety and Solicitor General for the Province of British Columbia in accordance with s. 21 of the Police Act, and not against the officer personally.
Police Must Be Able to Articulate a Valid and Lawful Basis for Their Conduct
As Joseph illustrates, civil liability in policing often turns on an officer's ability to articulate the legal authority they relied on to execute a particular Criminal Code or common law power (i.e. power of arrest of detention). In order to effect an arrest without a warrant, an officer must have reasonable grounds to believe a person has committed, or is about to commit an indictable offence, or the officer must find the person in the process of committing a criminal offence. The reasonableness of the grounds for the arrest will be assessed based on the circumstances as they existed at the moment the arrest is made. Similarly, to detain a person, an officer must have reasonable grounds to suspect that the particular individual is connected to a particular crime and to believe the detention is necessary to investigate the situation.
In civil cases, the factual context that contributed to the officer's subjectively-held belief about what was reasonable in the circumstances will be a primary consideration for the courts. In articulating subjectively-held beliefs, officers sometimes overlook important information they possess about the situation, including for example: query results; radio transmissions; observations regarding safety concerns; words spoken or behaviours observed; and, experience-related beliefs formed over the course of the impugned interaction. While it can be difficult to do so in dynamic situations, it is important that officers form a clear understanding at the outset of any interaction they have with the public, what statutory or common law powers they are exercising and, where they are required to arrest, detain or search a person, the reason for exercising those particular powers.
Originally published by Alexander Holburn, August 2020
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