Date: 19991230
Docket: T-332-94
BETWEEN:
ROSE A. BECKFORD STEWART
Plaintiff
- and
THE ATTORNEY GENERAL OF CANADA
on behalf of HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
SHARLOW J.
[1] On Monday, August 23, 1993, at a little after 9:00 in the evening, the Plaintiff Rose A. Beckford-Stewart went to Terminal Two of the Pearson International Airport to pick up a friend. She stopped her car in a handicapped parking zone. Because her license validation sticker had expired, she was noticed by Constable Thompson, a member of the Royal Canadian Mounted Police who was then on traffic duty. That led to a conversation between the Plaintiff and Constable Thompson outside Terminal Two, and ultimately to the Plaintiff's arrest in the international arrivals area of Terminal Two by Constable Thompson and two other RCMP officers, Constable Virgin and Constable Ishmael. The Plaintiff alleges that she was injured in the course of the arrest and claims general, special and punitive damages for assault.
[2] The Plaintiff does not contend that her arrest was unlawful. She contends that the police officers used excessive force in making the arrest. The issue for trial is whether the force was excessive, and if so, whether the Plaintiff is entitled to damages.
[3] I have concluded, for the reasons below, that the Plaintiff"s claim must be dismissed with costs.
Background facts
[4] The Plaintiff was born in Jamaica but is now a Canadian citizen. She and her mother came to Canada in 1980 under the sponsorship of her brother. Her mother was a school principal. Her father, who died when she was 15, was a judge and also a church minister. She was married but is now divorced, having separated in 1988. She has two daughters, ages 12 and 14, who live with their father in Brampton, Ontario.
[5] The Plaintiff attended school in Jamaica, attaining the approximate equivalent of a Canadian grade 11 or grade 12 education. In Canada she took college courses, first to become a registered practical nurse and then to become a registered nurse. She now works as a registered nurse at Toronto East General Hospital.
[6] Except for the events that gave rise to this litigation, she has never had any dealings with the police. She said that prior to the events on August 23, 1999, she had a positive attitude toward the police.
[7] In 1990, while the Plaintiff was employed as a unit supervisor in a nursing home, a job for which she qualified as a registered practical nurse, she was injured in a motor vehicle accident. She suffered a whiplash injury and an injury to her left shoulder. She required physiotherapy for approximately three years. During that time she received income replacement benefits from her then employer, and accident benefits from her car insurance.
[8] In August of 1993, at the time of the arrest that is the subject of this case, the Plaintiff was employed as a registered practical nurse with the Victorian Order of Nurses (VON), an agency that provides in-home nursing care. She found that job with the assistance of an agency to which she was referred through her car insurance company. Early in 1993 she believed she was able to return to work and wished to do so. Her left shoulder still caused her some pain, but she was able to perform her duties as a nurse, which sometimes included the heavy work of assisting bed-ridden patients to sit up so that she could assist them with medical treatment and personal care as required.
[9] The Plaintiff began her work with the VON in June of 1993 on a part-time basis, four hours per day, five days per week. Her work was gradually increased to six hours per day and then, by late July of 1993, to full-time, which was 7.5 hours per day and five days per week. She was paid $14.75 per hour. In addition to her full-time work with the VON as a home nurse, she said that she did some part time work for another division of the VON. Her work for the VON required her to use her own car to travel to clients' homes. For that purpose she used a black 1986 Ford Tempo, which she owned.
[10] The Plaintiff testified that in August of 1993, she was also engaged in a business of her own that involved managing an artist named Devon Stewart (he is not related to her), a disc jockey and a reggae/rap artist. The Plaintiff said she did some promotions work, organized music and other events, and produced recordings. She admitted that the expenses of that business exceeded its revenues, so it never made any profits. She was able to perform this work during her three years of disability because it did not involve any physical work.
[11] The Plaintiff said that she is approximately five feet five or six inches tall, and that in August of 1993 she weighed 125 to 130 pounds. She was then 31 years of age.
[12] Constable Thompson said that she is five feet two inches tall and in August of 1993 weighed 122 to 124 pounds. Her age is not in evidence but she appears to be young. She started work with the RCMP in February of 1992, and was initially posted to the Regina Depot Division for training. That training ended in August of 1992 when she was posted to the Pearson International Airport. For the first six months of her posting there, she was still considered to be in training. She had completed her training only six months before the arrest of the Plaintiff.
[13] Constable Virgin said he is approximately five feet eight inches tall and in August of 1993 weighed 173 pounds. He has much more experience than Constable Thompson, having been a constable since 1974. He was posted to the Pearson International Airport from 1974 to 1994.
[14] Constable Ishmael has been a constable since 1987. He was posted to the Pearson International Airport from December, 1990 to November, 1997.
Preliminary points
[15] Before describing the evidence as to the events of August 23, 1993, I will comment on two general points.
[16] First, what were Constable Thompson, Constable Virgin and Constable Ishmael wearing on August 23, 1993?
[17] The standard summer RCMP uniform consists of a short sleeved grey shirt with a name tag on the pocket and the RCMP insignia on the shoulders, dark blue pants with a yellow stripe down the side, a belt with a gun and radio, and a hat bearing a badge with the RCMP insignia on the front. This is the uniform the three constables should have been wearing while on duty at Terminal Two of the Pearson International Airport.
[18] The Plaintiff testified that for the most part, she does not recall the details of the constables' attire. I can understand how that might be the case, given the stressful situation in which the Plaintiff found herself. Despite her admitted lack of recollection, however, the Plaintiff insisted several times that Constable Thompson was not wearing a hat when they spoke outside the Terminal Two building, and that neither she nor the other constables were wearing hats at the time of the arrest.
[19] It was not clear whether the Plaintiff was untruthful or simply mistaken on this point, but in any event, I find that she was wrong. The evidence of the constables convinces me that at all material times, they were all wearing a standard summer RCMP uniform, including the hat, except that Constable Thompson removed her hat while in the RCMP's airport office after the Plaintiff's arrest.
[20] Second, did the Plaintiff know that Constable Thompson, Constable Virgin and Constable Ishmael were police officers?
[21] The Plaintiff said several times that she did not know that the constables were members of the RCMP and thought they were simply airport traffic control officers. I have already concluded that all three constables were wearing their hats, the most distinctive part of the RCMP uniform, at all material times. The Plaintiff admitted that shortly before the arrest she had absorbed enough information about their uniforms to believe that they had the authority to make an arrest.
[22] I conclude that the Plaintiff knew from the outset that they were police officers, even if she did not fully appreciate that they were members of the RCMP.
Before the Plaintiff went to the airport
[23] The Plaintiff remembers August 23, 1993 as a hot and sunny day. Mr. Stewart was to arrive at Terminal Two from Jamaica that evening at 9:00 p.m., and the Plaintiff was to pick him up. She had picked him up there before. In fact, she had been to the airport three to five times between 1980 and 1993, but she did not know that police services at the airport were provided by the RCMP.
[24] On August 23, 1993, the Plaintiff worked for the VON from 7:30 a.m. to approximately 5:00 p.m. From the home of her last patient in the Black Creek area, she drove for almost an hour to the VON office at Victoria Park, where she had some work to do. She was at the office for a period of time, perhaps an hour or a half-hour, then drove for over an hour to her home in Mississauga.
[25] At home, she showered and changed into shorts, a T-shirt and a jean jacket. She did not eat. She left home for the airport at about 9:00 p.m., which meant that she was bound to arrive after Mr. Stewart's scheduled arrival time. It would have taken her 15 to 20 minutes to get to the airport from her home.
[26] The airport was crowded that evening. The Plaintiff admits that her nerves were somewhat frazzled and she was stressed.
[27] The Plaintiff's car did not have a current validation sticker. The last one had expired in January of 1993. The Plaintiff"s explanation for not having a current validation sticker was that she had just finished college and did not have enough money to pay for both the new sticker, which would have been $90, and for the fines of over $400 that had been accumulated by her then estranged husband.
[28] The Plaintiff was aware that her validation sticker had expired, and knew that the failure to display a current validation sticker was an offence, but nevertheless she drove her car for work and, on August 23, 1993, to the airport. The expired validation sticker was the cause of all that followed.
The conversation with Constable Thompson outside the Terminal Two building
[29] At the airport the Plaintiff looked for a parking space. She said that she saw an area of metered parking in front of Terminal Two where there was a car which was in the process of being loaded with luggage, apparently preparing for departure.
[30] The Plaintiff said that she turned on her indicator and pulled in behind the car, in order to be in position to take the parking space when the other car left. She said that her engine was running, the car was in gear, and her window was open. She heard someone tapping on her back window, and saw that it was a woman.
[31] She now recognizes the woman as Constable Thompson, but she said that at the time she thought the woman was an airport traffic enforcement officer. She said she did not realize that Constable Thompson was a police officer. However, as I have already said, I do not believe that to be the case.
[32] There is no independent evidence of the conversation between Constable Thompson and the Plaintiff outside the Terminal Two building. The Plaintiff's version and Constable Thompson"s version are significantly different in several respects. Constable Thompson"s version is based in part on her notes, which she made within hours of the arrest, and a report she prepared the next day. However, her notes are incomplete and to that extent they are unreliable.
[33] In addition, Constable Thompson admitted in cross-examination that before preparing her notes, she made a preliminary version in her own personal shorthand. Those preliminary notes were not produced in the course of discoveries and Constable Thompson did not have them with her during her testimony. She admitted that their existence was not even disclosed to counsel for the Defendant. It is impossible to say whether those preliminary notes would have shed any light upon the events of August 23, 1993. It is arguable that the fact that they have never been previously disclosed casts some doubt on the reliability of Constable Thompson"s evidence. However, I accept as credible Constable Thompson"s explanation that her preliminary notes were not readable by anyone but herself, and I have drawn no adverse inference from her failure to disclose them.
[34] The critical difference in the two versions is that Constable Thompson says that she asked the Plaintiff to identify herself, but the Plaintiff says that Constable Thompson asked for identification documents and. when told they were in the trunk of the Plaintiff"s car, did not pursue the matter and either instructed or allowed the Plaintiff to leave the handicapped parking area in which she was stopped.
[35] Some assistance in determining the substance of that conversation may be derived from subsequent events. The Plaintiff did not behave like a person who believed she had done anything that would likely attract a police pursuit. She simply drove away, parked her vehicle elsewhere and went into the Terminal Two building to await Mr. Stewart's arrival. However, by her own admission, her first reaction to seeing Constable Thompson again was to offer to produce her identification documents.
[36] The subsequent acts of Constable Thompson were those of a police officer whose instructions to a driver to identify herself had been disregarded. When the Plaintiff drove away, Constable Thompson immediately radioed for the assistance of another officer in a car to look for the Plaintiff. On a balance of probabilities, I conclude that Constable Thompson did ask the Plaintiff to identify herself and had not abandoned her request when the Plaintiff drove away.
Counsel for the Plaintiff, in conducting the cross-examination of Constable Thompson, attempting to elicit an admission that Constable Thompson did not need proof of the Plaintiff"s identity to issue a ticket with respect to the expired validation sticker. His point was that by the time the Plaintiff drove away, Constable Thompson had been told by the Plaintiff that she was the owner of the car, and Constable Thompson also knew from checking with the telecommunication centre that the owner of the car was Rose A. Beckford-Stewart. Constable Thompson did not concede this point, and I do not accept it. In my view, it was reasonable and appropriate for Constable Thompson to attempt to ascertain whether the driver of the car could identify herself as Rose A. Beckford-Stewart.
[37] The Plaintiff did not take Constable Thompson"s request as seriously as she should have done. She did not comply with the Constable"s request and simply drove away without realizing the extent of her error.
[38] When Constable Thompson was asked to describe the Plaintiff's demeanour during this conversation, she said that the Plaintiff seemed fine at first, but then became agitated, as though Constable Thompson were "a bother". I consider that to be a revealing characterization, indicating that Constable Thompson perceived the Plaintiff to be dismissive, and perhaps disrespectful of her authority as a police officer.
After the conversation with Constable Thompson and before the arrest
[39] The Plaintiff said that after the conversation with Constable Thompson, she went to the underground parking area, which required her to obtain a ticket from a dispenser at the entrance gate. The Plaintiff thought that she entered the parking garage between 10:30 and 10:45 p.m. However, the ticket, Exhibit P-2, indicates that it was issued at 21:43 on August 23. On being shown the ticket, she agreed that was probably the time she entered the parking garage. She estimates that it took five to ten minutes to get to the parking garage and another two or three minutes to find a parking spot. Once she was parked, she took her driver's license and other documents out of the bag in the trunk and put them into her purse, and went into Terminal Two to the arrivals area.
[40] She stood behind a glass wall through which she could see the baggage carousels, and waited for Mr. Stewart. She waited there for about 45 minutes. She estimates that there were many other people also waiting, perhaps as many as two hundred. I accept that estimate, as it was confirmed by Constable Thompson. The Plaintiff learned from someone there that two planes were arriving from Jamaica, and one from Barbados.
[41] Constable Thompson testified that after the Plaintiff drove away from her, she radioed for a car to assist her in locating the Plaintiff. That radio broadcast would have been heard by all of the police officers at the airport. It was heard by Constable Virgin and Constable Ishmael. Constable Macaffie arrived in a car, and drove Constable Thompson around the Terminal Two area for 10 to 20 minutes, but they did not locate the Plaintiff. Constable Macaffie dropped Constable Thompson off at the Terminal Two Building, and she resumed her foot patrol in the building, accompanied by Constable Virgin. Constable Virgin was aware of the incident because of the radio broadcast and because Constable Thompson told him about it as they patrolled.
[42] There is some controversy as to whether Constable Thompson went into the Terminal Two building specifically to search for the Plaintiff, or whether she simply kept her eyes open in case she spotted the Plaintiff in the course of her normal patrol. I am not sure that anything turns on this, but I have concluded that Constable Thompson was actively searching for the Plaintiff inside the Terminal Two building, though she may have entertained little hope of finding her.
The conversation inside the terminal building
[43] The next encounter between the Plaintiff and Constable Thompson is the subject of more contradictory evidence.
[44] Here is the Plaintiff's version. As the Plaintiff stood in the terminal looking into the baggage area, waiting for Mr. Stewart, she felt a hard slap on her left shoulder, which caused her pain. She immediately thought it was Mr. Stewart who had arrived without her seeing him. She was angry because she believed Mr. Stewart would have known that a slap on her left shoulder would be painful to her because of her previous injuries. She turned and said something like, "What did you do that for?" but found herself facing, not Mr. Stewart, but Constable Thompson and a man she had not seen before but now recognizes as Constable Virgin. Constable Thompson said, "We meet again," and then the Plaintiff remembered that this was the woman who had spoken to her outside. The Plaintiff offered to show Constable Thompson her identification papers, as she now had them with her, but Constable Thompson said something like, "It's too late. I'm going to arrest you and embarrass you in front of all these people." The Plaintiff said that at no time did Constable Thompson or Constable Virgin give any reason for arresting her.
[45] While describing this encounter in her testimony in chief, the Plaintiff was crying and apologizing. In cross-examination, she said that at this point in the confrontation between herself and Constable Thompson she was not angry, but embarrassed.
[46] Here is Constable Thompson"s version. As she and Constable Virgin patrolled inside the Terminal Two building, they entered the public part of the international arrivals area. Constable Thompson saw the Plaintiff standing at the glass wall, looking through to the baggage area. According to her notes, this would have been at approximately 22:19. As she approached the Plaintiff, the Plaintiff saw her and said, "what". Constable Thompson then attempted to talk to the Plaintiff calmly, to avoid a confrontation. She said that this was her normal way, because she is not of a stature to be forceful. She asked the Plaintiff to come to the office to talk, and told the Plaintiff that she did not want either of them to be embarrassed in front of all of these people, but would rather deal with the matter in private. When the Plaintiff did not respond to this request, Constable Thompson asked again for the Plaintiff's identification, and the Plaintiff said, "No, because you don't ask me politely," and then she turned her back. Constable Thompson took that as a refusal to comply with the request for identification.
[47] According to Constable Thompson, the Plaintiff was getting agitated during this conversation. Constable Thompson described the Plaintiff's attitude, again, as though she considered Constable Thompson to be "a bother". Constable Virgin described the Plaintiff as being enraged. On balance, I believe that his recollection on this point is an exaggeration. I do accept, however, that the Plaintiff was dismissive of Constable Thompson and probably appeared to Constable Thompson as hostile. Given Constable Thompson"s initial encounter with the Plaintiff, this display of the Plaintiff"s attitude would have exacerbated the situation.
[48] The conversation described by Constable Thompson is not mentioned in the notes she made within a couple of hours of the arrest, nor is it mentioned in the more lengthy report she prepared the next day. However, her version is somewhat corroborated by Constable Virgin, who was standing beside her during the conversation with the Plaintiff inside the Terminal Two building. He testified that Constable Thompson asked the Plaintiff for her identification and that the Plaintiff refused, with some comment about Constable Thompson not being polite. His notes are consistent with his testimony on this point. He also claims to recall that Constable Thompson was polite.
[49] I think it likely that Constable Thompson did not appear to the Plaintiff to be as calm and reasonable as Constable Thompson recollects. On the other hand, it is equally likely that the Plaintiff was still in an uncooperative mood and inclined to respond unreasonably to Constable Thompson. She probably was inclined to misconstrue what Constable Thompson was trying to convey to her.
[50] Taking all of the circumstances into account, I find that inside the Terminal Two building Constable Thompson renewed her request that the Plaintiff identify herself, and did not make any move to arrest the Plaintiff until she concluded from the Plaintiff"s behaviour and attitude that the Plaintiff was continuing to refuse to identify herself. I do not accept that Constable Thompson threatened to arrest the Plaintiff simply to embarrass her. I accept that Constable Thompson told the Plaintiff why she was being arrested.
The arrest
[51] The manner in which the arrest was made was the subject of more contradictory evidence.
[52] Constable Thompson said that when the Plaintiff turned her back to her, she told the Plaintiff that she was arresting her for failing to identify herself, and she touched the Plaintiff's left shoulder or upper arm with her right hand to turn her around. The Plaintiff pulled away, so Constable Thompson grabbed her wrist and tried to place handcuffs on her, but she continued to pull away and resist, saying "no, no." Constable Thompson said that she then grabbed the Plaintiff"s wrist in a standard police restraint and tried to place handcuffs on her, but that the Plaintiff was still pulling away, a gesture that both Constable Thompson and Constable Virgin interpreted as resisting the arrest.
[53] Meanwhile, Constable Virgin had grabbed the Plaintiff"s right arm. A struggle ensued between all three. At some point during this struggle, Constable Ishmael arrived. Somehow, the Plaintiff ended up face down on the floor. Constable Thompson is not sure how that happened, but assumes it was the result of a standard police technique involving the grabbing of a person's arm and pushing them forward.
[54] Constable Thompson recalls these events as a struggle by the Plaintiff to avoid the arrest. Constable Virgin"s recollection is similar. Constable Ishmael confirms that there was a struggle which he interpreted as the Plaintiff resisting an arrest. He saw the initial struggle from a distance of 50 to 60 feet, and came to assist the other constables in controlling the Plaintiff. By the time he arrived, the Plaintiff was on the floor and was still struggling. He did not see how she ended up in that position.
[55] The Plaintiff said that even though she again offered to produce her documents, which were in her purse on her right shoulder, Constable Thompson grabbed her left wrist and twisted it sharply, causing her great pain that was aggravated by the pain she felt in her left shoulder from the earlier slap. While Constable Thompson was holding her left wrist and twisting it, the plaintiff says that she was still trying to get at the identification documents in her purse, but that Constable Thompson did not allow her to do so. Instead, she said, Constable Thompson twisted her arm, turned her around, and knocked her onto her left elbow, causing more pain to her elbow and left shoulder. She said that Constable Thompson said to Constable Virgin, "Don't let her touch that bag," at which point Constable Virgin grabbed her by the neck at the back of her head, lifted her off the floor and tossed her face against the glass wall. During this time, his hands were around her throat. She was trying to tell him she could not breathe, and was trying to pull his hand loose, but he responded by tightening his grip.
[56] Constable Thompson says that she did not see Constable Virgin putting his hands on the Plaintiff's throat, lifting her off the ground, or banging her against the glass wall. Constable Virgin denies that he did any such thing. However, they both admit that it was possible that in the struggle, the Plaintiff hit the glass wall.
[57] The Plaintiff said that as her arm and elbow were being twisted, she was pushed to the floor in a kneeling position, her left hand was behind her back, and Constable Thompson was demanding that she put her arm down. The Plaintiff said that she told Constable Thompson, "You're hurting it, it can't go down". She then felt a weight on her back and she was pushed face down to the floor. She does not know who applied the weight to her back.
[58] The Plaintiff said that she was trying with her right hand to loosen Constable Virgin's grip. She denies that she grabbed Constable Virgin's radio cord, but admits that it might have caught on her hand as she tried to loosen his grip from her throat. It is clear, at least, that the button holding the epaulet to which Constable Virgin"s microphone was attached was torn off during the arrest. Constable Virgin said that he did not believe that the Plaintiff was attempting to hit or hurt him. I conclude that any damage that might have been caused by the Plaintiff during the arrest was accidental.
[59] The Plaintiff said that while she was on the ground her arms were behind her back and handcuffs were put on. She says she was lifted by the handcuffs, in the course of which one hand slipped out of the handcuffs and one of her slippers came off. She said that being lifted by the handcuffs caused her additional pain. The handcuffs were replaced, somewhat tighter.
[60] In cross-examination, the Plaintiff admitted that at some point during the procedure of lifting her from the ground, Constable Virgin and Constable Ishmael were on either side of her, holding her shoulders. She still believes that during the first half of the lift, she was being held only by the handcuffs. All three constables denied any attempt to lift the Plaintiff by the handcuffs. Constable Thompson says she was lifted by Constable Virgin and Constable Ishmael by her arms.
[61] I can understand how the Plaintiff, from her position on the floor and in pain from having her arm twisted behind her, might have developed an erroneous impression of the manner in which she was lifted from the floor, but I think it most likely that she was lifted properly, by her arms.
[62] The Plaintiff said that throughout this episode she was in pain, and she was worried about her injured shoulder and whether she would be able to continue her work at the VON if she was injured further. She adamantly denies that she was trying to resist arrest, and says that her movements were the result of trying to avoid the pain that was being inflicted on her.
[63] I accept that the Plaintiff was in pain as a result of the manner in which she was arrested and that she was also embarrassed. Constable Virgin says that the Plaintiff screamed in anger. I can well believe that she screamed, but I think it is more likely that the scream was not caused only by her anger, but rather by a combination of the pain, embarrassment and anger she must have been feeling at the time.
[64] The Plaintiff said that this altercation was witnessed by a great number of people who were within a few feet of the arrest. She said she heard people saying to let go of her, and that they were hurting her. However, she said that she had no opportunity to get the names of any of the witnesses at the airport. I have not drawn an inference adverse to the Plaintiff by virtue of her failure to bring forward any evidence from these witnesses. At the same time, however, I recognize the force of the submission of counsel for the Defendant, that the presence of that number of disinterested witnesses in close proximity to the arrest might operate to inhibit the police officers from any overtly unreasonable behaviour.
Events at the airport after the arrest
[65] The events after the arrest are more clear. Constable Thompson took the Plaintiff, still handcuffed, outside of the Terminal Two building. Someone from the crowd threw the Plaintiff the slipper that had fallen off during the altercation, and she put it on.
[66] Outside the building, Constable Thompson searched the Plaintiff by patting her down, a procedure described by Constable Thompson as a cursory search. Constable Thompson was satisfied that the Plaintiff had no weapons.
[67] The Plaintiff was placed in the back seat of a car. She does not recall seeing any markings on the car to indicate that it was a police car, but I accept that it was a standard RCMP car with lights on the roof, RCMP insignias on the front doors and "POLICE" in large print on the back. Constable Thompson was in the front passenger seat. It is not clear who was driving.
[68] The Plaintiff was driven to another place and taken to a small room, where she met with Constable Thompson. At the time the Plaintiff did not know where she was, and claims not to have seen any markings that identified the office as one belonging to the RCMP. However, other evidence established that she was taken to the RCMP office in the Terminal Two building. Constable Thompson had the Plaintiff's purse, and emptied it onto a table, finding the Plaintiff's identification documents.
[69] The Plaintiff said that she complained to Constable Thompson that the handcuffs were too tight, that Constable Thompson first left the room, came back, finally looked at the handcuffs, agreed that they were too tight, and removed them. The Plaintiff said that the handcuffs were on for a total of 10 or 15 minutes.
[70] The Plaintiff said that Constable Thompson left the room again and had a conversation with an officer outside, then returned and said that she was putting the Plaintiff under arrest for failing to identify herself, and then read to her from a card. Constable Thompson then left the room for a third time, and the Plaintiff heard a conversation outside the room from which it appeared that they were discussing the possibility of impounding her car. Constable Thompson testified that she read the Plaintiff what she called the "police warning" from a card she carried, and that she and her supervisor had discussed the possible charges that might be laid against the Plaintiff. The police warning is intended to explain the right to silence and the right to counsel.
[71] Then, according to the Plaintiff, another man came into the office to talk to her. She does not know who that man was, but from later evidence I infer that this was Constable Thompson's supervisor, Corporal Campobosso. He did not give evidence. The Plaintiff said that Corporal Campobosso asked why she had not produced her identification, but when she tried to explain to him that she had tried to do so, she was not given a chance. He also asked whether she had choked one of the officers, and she denied any recollection of doing that.
[72] Corporal Campobosso left the room, and Constable Thompson returned to say that the Plaintiff would again be arrested, this time for obstruction. Constable Thompson read from the card again. At the Plaintiff's request, Constable Thompson called duty counsel, Mr. Reid, who spoke to the Plaintiff. Constable Thompson then told the Plaintiff that she was being released on her own recognizance.
[73] As the Plaintiff was leaving, Constable Thompson handed her two pieces of paper. They were appearance notices, one relating to the obstruction charge and the other to the charge of failing to identify herself. The Plaintiff said that when she read those papers she realized for the first time that Constable Thompson and the others might be RCMP officers. She asked Constable Thompson if that was so, and she said it was. The Plaintiff said she was surprised at this, because up to that point she believed they were airport security.
[74] I do not understand why the Plaintiff's reading of the appearance notices led to the realization that Constable Thompson and the others were RCMP officers, because there is nothing on the appearance notices that says "RCMP". I repeat my conclusion that in fact, the Plaintiff knew all along that Constable Thompson and the others were police officers.
[75] As the Plaintiff left the office, she asked Constable Thompson how she could find her car. Constable Thompson gave her directions. While she was still in the terminal building, she tried to locate Mr. Stewart in case he was still there, but did not find him. She tried to phone his home, but he was not there. She spoke to his mother, who had not seen him or heard from him.
[76] The Plaintiff then left the terminal building and found her car, paid for her parking and left. The Plaintiff estimated that she was at the airport for 2-1/2 to 3 hours. At first she thought that she had left the airport at about 2:00 a.m., but she admitted in cross-examination that the ticket from the parking dispenser indicated a departure time of 00:28 on August 24. Thus, she had the departure time wrong but was approximately correct on the duration of the events.
Subsequent events
[77] The Plaintiff said that as she drove away, she realized that she was hurt and drove to the emergency ward of the Credit Valley Hospital. A document entitled "emergency treatment record" was admitted as evidence by consent. It indicates that the Plaintiff was seen by Dr. Tang on August 24, 1993, but the time is not legible. It confirms that the Plaintiff suffered injuries to her left neck, shoulder, arm and wrist, and that she had abrasions on her wrists, right knee and left foot. The Plaintiff said that the nurse gave her ice for the swelling of her left hand, and saline to sooth her injured throat. Dr. Tang applied a half cast and sling to immobilize her left arm, and instructed her not to move it. Her wounds were tended, and Dr. Tang gave her some Tylenol 3 for pain.
[78] The Plaintiff said she took a taxi home from the hospital sometime between 4:00 and 5:00 a.m. That day she phoned her own physician, Dr. Addah. She saw him the next day, August 25. Dr. Addah testified that when he saw the Plaintiff she was in pain and was very upset. His report, confirmed by his oral evidence, states that there was soft tissue edema, superficial abrasion and exquisite tenderness on the collateral aspects of the elbow and antecubital aspect of the left forearm, and ecchymoses and soft tissue edema of the anterior right knee and proximal leg. He prescribed analgesic and anti-inflammatory medication, and physiotherapy.
[79] Dr. Addah also concluded that the Plaintiff suffered from post-traumatic stress syndrome, and for that he referred her to a psychiatrist. However, the Plaintiff only saw the psychiatrist twice. The psychiatrist did not give evidence.
[80] The Plaintiff returned to the RCMP office at the airport on August 30, 1993 to be fingerprinted. Constable Thompson was there, and gave the Plaintiff a ticket for the expired validation sticker. The Plaintiff said that on that occasion, Constable Thompson took back the appearance notice relating to the charge of failure to identify herself, and said that the charge would not be proceeded with. The Plaintiff claims that the reason given by Constable Thompson for withdrawing the failure to identify charge was that she had identified herself, and that failure to identify was a more serious charge than the ticket for an expired validation sticker.
[81] Constable Thompson testified that the Plaintiff's demeanour on August 30, 1993 was friendly and pleasant. She said the Plaintiff seemed like a different person.
[82] The Plaintiff went to court on the ticket for the expired validation sticker, and was fined $55, a reduction from the normal $90. The obstruction charge went to trial in January and March of 1995. The Plaintiff was acquitted.
The Plaintiff's injuries, their cause and consequences
[83] I do not propose to review in detail the evidence relating to the Plaintiff's injuries. It is basically uncontradicted, except for Constable Thompson"s comment that on August 30, 1993, when the Plaintiff returned to the RCMP office at Terminal Two to be fingerprinted and photographed, the Plaintiff did not mention anything about having been injured.
[84] The Plaintiff says that on that day she was still wearing the half-cast that Dr. Tang had put on her arm, but she was also wearing a long sleeved blouse to conceal it. No cast is visible in the photograph taken of the Plaintiff, and Constable Thompson says that she did not notice the Plaintiff wearing a cast on that day. However, Constable Lecker was the police officer who actually took the Plaintiff's fingerprints that day, and he did not give evidence. Apparently, he is now posted to a detachment in British Columbia, but it was not suggested that he could not have testified. I conclude, on a balance of probabilities, that the Plaintiff was wearing her cast that day.
[85] I am satisfied from the Plaintiff's own testimony, from the hospital record, and from the evidence of Dr. Addah, that the Plaintiff was physically injured and in considerable pain as a direct result of the manner in which she was arrested.
[86] I also conclude that her injuries and the resulting pain were substantially as she claims, with two exceptions. First, I do not accept that the Plaintiff's throat was injured, because no such injury is mentioned in the hospital record or in Dr. Addah's notes. Second, while I accept that the Plaintiff suffered some symptoms of post-traumatic stress syndrome, I do not accept that those symptoms were as severe or lasted as long as the Plaintiff claims.
[87] I accept that the injuries to the Plaintiff's left arm and wrist rendered her unable to work for the periods that she claimed, and I accept that she was able to work only part-time from November 24, 1993, and that she returned to full-time work on December 3, 1993.
[88] Some of the Plaintiff's testimony was intended to establish the degree of embarrassment she suffered from the fact that people knew that she had been arrested. However, except for Mr. Stewart, she was unable to name anyone who had that knowledge. She did admit that while taking courses toward her registered nurse designation, she disclosed the incident to some of her instructors. There was no objective evidence as to how the arrest had any negative effect on the Plaintiff, except the injuries referred to above.
Did the police officers use excessive force?
[89] The Plaintiff is to all appearances an ordinary law abiding citizen, and a generally sensible and intelligent person, who was understandably surprised and distressed to find herself in a physical altercation with three police officers in such a public place as the Terminal Two building. However, none of that is relevant to the question before me, which is whether the police officers were justified in using such a degree of force in arresting the Plaintiff that they caused her pain and injury.
[90] In assessing the evidence in this regard, I must bear in mind that the degree of force must be viewed from the subjective view of the police officers as well as the objective circumstances. I must also make due allowance for a police officer in the exigencies of the moment misjudging the degree of force needed, and avoid holding a police officer to a standard of conduct that one sitting in the calmness of a courtroom later might determine was the best course: Neville v. Vancouver (City) Police Department, [1998] B.C.J. No. 2952 (B.C.S.C.)(QL), Breen v. Saunders (1986), 39 C.C.L.T. 273 (N.B.Q.B.), Foster v. Pawsey (1980) 28 N.B.R. (2d) 334 (N.B.Q.B).
[91] I have concluded, based on the evidence, that Constable Thompson, Constable Virgin and Constable Ishmael did not use excessive force in the arrest.
[92] In coming to this conclusion I have particular regard for the state of affairs as perceived by Constable Thompson, whose lead the others followed. I have previously noted that Constable Thompson was probably more intent on resolving the situation with the Plaintiff than she now admits. However, in the final analysis I do not believe that Constable Thompson"s feelings adversely affected her assessment of the situation she faced inside the Terminal Two building when she encountered the Plaintiff for the second time.
[93] Inside the Terminal Two building, Constable Thompson was faced with a situation where the Plaintiff, a woman who had refused previously to provide identification and had driven away while Constable Thompson was still pursuing her request, continued to refuse to provide identification without giving a sensible explanation.
[94] The Plaintiff moreover was by her own admission feeling stressed and fatigued. To Constable Thompson, the Plaintiff displayed signs of agitation and hostility, manifested physically by turning her back.
[95] While the Plaintiff may well have simply misunderstood the situation, Constable Thompson had no reason to believe that was so. From Constable Thompson"s point of view, the Plaintiff did not appear to be behaving reasonably. In my view, Constable Thompson was justified in suspecting or fearing that the Plaintiff"s manifestly irrational behaviour might have been masking a serious problem.
[96] Once the situation had reached the point where the Plaintiff turned her back, it was reasonable for Constable Thompson to take hold of the Plaintiff"s arm in order to make the arrest, and then to apply escalating force against the Plaintiff as she continued to struggle. Ultimately, all three police officers were justified in applying the degree of force that turned out to be required to subdue the Plaintiff.
Assessment of damages
[97] In case I am wrong on the question of liability, I have assessed the damages I would have awarded if I had found that excessive force was used.
[98] It was agreed and I accept that special damages were proved to be $7,435.17. As to general and punitive damages, both counsel referred to a number of cases, none of which were exactly like this one. Counsel for the Plaintiff suggested an award in the range of $20,000 to $25,000. Counsel for the Defendant suggested a range of $10,000 to $12,500. Compared to the injuries referred to in the cases cited to me, the Plaintiff"s injuries were relatively minor, and though they were painful, their effects were not of a particularly long duration. Based on the evidence, I would describe the negative psychological effects of the incident as slight. I would assess general damages at $12,500. If I had concluded that the circumstances were such as to justify an award of punitive damages, I would have assessed an additional $12,500.
Conclusion
[99] The action of the Plaintiff is dismissed with costs.
Karen R. Sharlow
Judge
Ottawa, Ontario
December 30, 1999
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