nan Editor’s Note: Corrigendum released January 25, 2005. Original judgment has been corrected with text of corrigendum appended. 51 Q.B.G. A.D. 2001 No. 2564 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MEHDI HASHEMIAN and JAMES WILDE, BLAINE LYNCH and ASTRID PURA DEFENDANTS E. Scott Hopley for the plaintiff Patricia J. Warwick and Blair P. Bleakney for the defendants JUDGMENT LAING J. January 24, 2005 [1] The plaintiff, Mehdi Hashemian, seeks damages for unlawful arrest and assault, including aggravated or punitive damages, arising out of events which resulted in his arrest and a charge of obstruction in the early morning of May 16, 2001 During the course of his arrest, Mr. Hashemian received cut to his scalp just inside the hairline above his left eye. He remained in custody until released at approximately 7:30 a.m. that morning. [2] The three named defendants are members of the Saskatoon Police Service. The City of Saskatoon is their employer. The position of the defendants is that Mr. Hashemian was lawfully arrested for obstruction, and that the cut he received on his head was by-product of his resistance during arrest and did not involve any more force than was reasonably necessary. Only one of the defendants, Constable Blaine Lynch, was responsible for the decision to arrest Mr. Hashemian and was solely involved in arresting him. [3] This was simplified procedure trial where the rules provide that each party submit their evidence-in-chief by affidavit. The opposing party then has the right to cross-examine on the contents of the affidavit. The evidence referred to in the following emerges from such affidavits together with the cross-examination that was conducted on each affiant. [4] The events surrounding Mr. Hashemian’s arrest involved the police officers arresting and removing patron of local lounge for being intoxicated in public place. The events leading up to the arrest and the activity of all participants while in the lounge are not largely in dispute and vary in minor detail only. The actions of Mr. Hashemian outside of the lounge are in dispute. [5] The parties have placed in issue: 1. Credibility; 2. Did Mr. Hashemian’s actions amount to obstruction? 3. Was it necessary to arrest Mr. Hashemian bearing in mind the provisions of s. 495(2) of the Criminal Code of Canada? 4. Was Mr. Hashemian assaulted? 5. If so, do any of the reasonable force provisions of the Criminal Code apply or does s. 10(3) of The Police Act, 1990, S.S. 1990-91, c. P-15.01 apply? 6. Compensatory damages; 7. Exemplary damages. THE EVIDENCE The events in the lounge [6] On May 15, 2001, Mr. Hashemian was post-graduate student in mechanical engineering at the University of Saskatchewan. He is of Iranian descent. His girlfriend, Ania Krupa, now his wife, was post-graduate student in geology. Their friend, Clarence Sampson, who is black, was in his first year at the Saskatchewan Indian Federated College. At approximately 10:00 p.m., the three of them attended at Crawdaddy’s Voodoo Lounge on 1st Avenue in the City of Saskatoon to celebrate Mr. Sampson’s successful exam results. This was Tuesday night. It is estimated there might have been twenty other people in the lounge. deejay was playing music, Mr. Sampson was in the mood to dance, and the evidence is that on occasion he danced by himself, he danced with Mr. Hashemian, and couple of times he danced with some of the patrons in the lounge. [7] At approximately 11:30 p.m., the server brought Mr. Hashemian his bill which totalled $37.40 and told Mr. Hashemian they wanted Mr. Sampson, who was then on the dance floor, to leave. Mr. Hashemian states he did not give the request much thought because they were about to leave in any event. Shortly after the server departed dental student friend of Mr. Hashemian and Ms. Krupa, Mr. Sobstel, entered the bar, ordered beer, and joined them at their table. Mr. Hashemian states at this point he asked Mr. Sobstel if he wished to play game of pool and they proceeded to do so. He states he left his credit card on the bill on the table. When they returned to the table the server had not processed the bill. At that point Mr. Hashemian went to the bar and paid the bill. As he was returning to the table he noticed the bartender speaking to Mr. Sampson at the edge of the dance floor. He joined them and heard the bartender ask Mr. Sampson to leave. Mr. Hashemian then asked the bartender why Clarence had to leave and was told it was because he was drunk. Mr. Hashemian then proceeded to argue with the bartender and state he did not think Mr. Sampson was drunk but was just having good time. The bartender replied, “No, that is it.” At this point Mr. Hashemian told the bartender that because he, Mr. Hashemian, did not believe Mr. Sampson was drunk, he drew the conclusion that Mr. Sampson was being asked to leave because he was black. At this point the bartender advised Mr. Hashemian that if Mr. Sampson did not leave he would call the police. Mr. Hashemian agrees he said to the bartender words to the effect that they were leaving anyway, but if he wanted to call the police, to go ahead. The bartender proceeded to do so, and the police officers arrived within 10 minutes. [8] Mr. Hashemian states he went back to the table and was prepared to leave. He states Mr. Sampson had put his jacket on and was over by mirror adjusting his attire, and he was informing Ms. Krupa and Mr. Sobstel of his conversation with the bartender, when the police officers arrived. [9] The police officers who arrived were Constables Pura and Wilde. They conversed with the manager of the bar, who identified Mr. Sampson to them. As they approached Mr. Sampson, he proceeded to walk back to the table to where Mr. Hashemian was located. Mr. Hashemian immediately proceeded to tell the police officers that the management of the bar was discriminating against Mr. Sampson. He was advised by Constable Pura that Mr. Sampson had to leave with them and they did not have to talk to him. He nevertheless persisted in attempting to provide Constable Pura with his view of the matter. She advised him it was not his business. In the meantime, Mr. Sampson was telling the police officers that he came with his friends and he wanted to leave with them. [10] Constable Pura was field training Constable Wilde on this night. When Mr. Sampson returned to the table, she states she advised Constable Wilde that they had to remove Mr. Sampson quickly because she did not want to cause scene. She stated it is police practice for officers’ safety to remove the problem person from licensed premise and then deal with them outside. Constable Pura states that she and Constable Wilde each took one of Mr. Sampson’s arms whereupon he sat down and said he was not leaving. At this point, they attempted to use hand controls to get Mr. Sampson into standing position, and Ms. Krupa hit Constable Pura’s arms in an attempt to release her grip of Mr. Sampson. At that point Constable Wilde put Mr. Sampson in headlock and dragged him towards the door. Constable Pura at this point radioed for backup help. [11] Ms. Krupa followed Constables Wilde and Pura towards the door and agreed at one point she grabbed Mr. Sampson’s arm, all the while protesting the police action. Mr. Hashemian was also protesting their action. After Constable Wilde took Mr. Sampson through the door, Constable Pura stood in the doorway to prevent Mr. Hashemian and Ms. Krupa from leaving. Both of them were extremely vocal. At one point Ms. Krupa attempted to push her way past Constable Pura and was pushed to the ground. Both of them were warned on more than one occasion that it was not their business and they should desist. Constable Pura stated while at the doorway, Mr. Hashemian was standing to one side “badgering me with questions”. At this point, one of the backup officers, Constable Rodgers, arrived. Constable Pura asked him to keep Ms. Krupa and Mr. Hashemian from leaving until she and Constable Wilde placed Mr. Sampson safely into the patrol car. [12] Constable Rodgers did as requested. He stated Ms. Krupa and Mr. Hashemian kept trying to push past him and were yelling various things. After Constable Rodgers decided enough time had elapsed, he allowed Mr. Hashemian and Ms. Krupa through the doorway. [13] The bartender, Mr. LaPlante, who was present throughout, states, “I remember the man asking questions of the Officers throughout. remember seeing the woman grabbing at the female Officer from time to time.” Constable Pura does state that when Mr. Sampson sat down, both Mr. Hashemian and Ms. Krupa tried to pull their friend away from us and were again instructed to back away. She further states, “Mr. Hashemian and Ms. Krupa tried to follow Constable Wilde and reiterated that they were obstructing us and to stay away.” The manager of the bar in her affidavit lumps Mr. Hashemian and Ms. Krupa together without distinguishing who did what. She states, “They were trying to grab their friend, Mr. Sampson, and pull him away from the police officers and they were yelling at the police officers. It appeared to me that they were attempting to stop the police officers from doing their job by trying to pull Mr. Sampson away from the police officers, by getting between the police officers and Mr. Sampson and by yelling at the police officers.” [Emphasis added] [14] Dr. Jarek Sobstel, then dental student who joined Mr. Hashemian and Ms. Krupa in the lounge, in his affidavit states: nan do recall Ania trying to pull the officer’s hands off of Clarence or perhaps Ania pulling on Clarence’s hand. was staying clear of the police officers and Clarence. actually stepped back as didn’t want to end up in the same situation as Clarence since as far as could tell Clarence hadn’t been doing anything differently than was doing. Further Medhi [Mr. Hashemian] was also keeping some distance between himself and the officers. [15] Both police officers, as well as the manager of the bar and the bartender, state that Mr. Sampson was inebriated at the time he was asked to leave. These persons all indicate that Mr. Sampson put up some minimal resistance to the police officers both before and after being placed in the headlock. The events outside of the lounge [16] When Constable Pura went upstairs and outside, she found Constable Blaine Lynch had also arrived as part of her call for backup. Constable Pura observed that both Constables Lynch and Wilde were struggling to handcuff Mr. Sampson who was bent over the hood of the patrol car. Constable Pura stated as she arrived beside them, Mr. Sampson was under control and she put the handcuffs on him. Her affidavit states: nan As he [Sampson] was about to be placed in the car, Mr. Hashemian and Ms. Krupa again showed up and demanded their friend be let go. Ms. Krupa was again pulling on Mr. Sampson to try to get him away from us. Mr. Hashemian continued to badger police with his questions, asking why his friend was being arrested, and that he wanted to go with him. They were both advised to go away, or they would be arrested for obstruction. Both had many opportunities to leave; however, chose to interfere. 12. That Ms. Krupa again grabbed Mr. Sampson, therefore, she was taken to the ground by Constable Rodgers and myself, handcuffed and placed in the back of Constable Rodgers’ patrol car. In cross-examination, Constable Pura agreed that Mr. Hashemian was few steps away from everyone else. She recalled him standing on the street (as opposed to the sidewalk where the officers were involved with Mr. Sampson), at the back of the police car and in front of civilian car that was parked behind. Constable Pura agreed that Mr. Hashemian was not physically involved with the arresting officers at any time prior to her and Constable Rodgers arresting Ms. Krupa, which was done after Mr. Sampson had been handcuffed. Constable Pura stated she did not see anything of Mr. Hashemian’s arrest until she saw him bent over the hood of the civilian car behind the patrol car, and being handcuffed by Constable Lynch. She states she did not observe any struggle at that point. [17] Ms. Krupa, like Mr. Hashemian, had persuaded herself that the police arresting Mr. Sampson was an act of discrimination and unnecessary, and she was very vocal about it. She agrees that she grabbed at Mr. Sampson or the police officers on couple of occasions including out on the sidewalk while Constable Pura was handcuffing Mr. Sampson. Ms. Krupa is not plaintiff and has not commenced an action with respect to her arrest. Ms. Krupa in her affidavit states: 7. did not see what happened to Mehdi [Mr. Hashemian] or how his injury occurred. However can say with certainty that he was never in the vicinity of Clarence [Mr. Sampson]. When everyone was outside Crawdaddy’s he was standing on the other side of the patrol car and did not come close to where Clarence and the officers and were standing. [18] Mr. Hashemian states that once he came up the stairs and went outside he saw Mr. Sampson bent over the hood of patrol car in the process of being handcuffed. He states he went around the patrol car to the street to see what was happening and continued to question the officers on why arresting Mr. Sampson was necessary. He agrees he was told by one or more of the officers words to the effect, “Shut up or you will be arrested too”. Mr. Hashemian states he observed Mr. Sampson being handcuffed by Constable Pura and he started to plead with the officers to let Mr. Sampson go. He agrees he was using an insistent tone asking questions such as, “what has Clarence done?”, “why are you doing this?”, etc. Mr. Hashemian states he finally said, “From where am standing you guys are behaving like the KKK. see an innocent black man being roughed up by you and you are not even telling me the reason he should be arrested”. In his affidavit Mr. Hashemian states: 25. That at this point Constable Lynch said “That’s it, we are going to take you with him now”. He came around the cruiser towards me. said “I don’t understand why you are arresting me but fine arrest me then”. The officer looked very angry. He put his hand on my left shoulder and walked me towards another cruiser. couple of meters before we reached the cruiser he pushed me towards it jerked forward but didn’t fall. didn’t know exactly what was supposed to be doing but was walking quietly and trying to be as cooperative as possible. didn’t say word. 26. That the officer positioned me facing the hood of the cruiser on the passenger side thus had my back to the sidewalk and restaurant. The officer was behind me and he held my hands behind my back. was standing motionless letting him do what he was doing. could feel the metal against my wrist and knew he was putting on handcuffs. Suddenly, without any warning, the officer put one hand behind the back of my head and slammed my head down towards the hood. had no idea such thing was about to happen. was offering no resistance to the handcuffing. None of my muscles were tensed and before even realized what was happening my head was slammed down onto the hood of the police cruiser and there was flash of white light in my head. 27. That after the slam raised my head. was slightly bent over the cruiser by Constable Lynch with my hands behind my back and he was still putting on or adjusting the handcuffs on my wrists. noticed some warm liquid was running down my face and looked down and realized that was bleeding onto the hood of the vehicle. This shocked me. At that point spoke to Constable Lynch saying “What did you do that for? That was really unnecessary”. He did not respond. He simply led me to the back of the police cruiser and put me into the vehicle. His evidence did not change during cross-examination. [19] Constable Rodgers states that when he got back up the stairs, Constable Pura was already dealing with Ms. Krupa and he assisted her in handcuffing Ms. Krupa. Constable Rodgers states he did not observe Mr. Hashemian’s arrest and has no knowledge of what transpired with respect to it. Ms. Krupa was placed in his car for transport to detention. [20] One of the police officers called an ambulance to the scene. An emergency medical technician looked at the cut on Mr. Hashemian’s head. He concluded Mr. Hashemian showed no signs of distress. He states that in his judgment, Mr. Hashemian did not require transportation to hospital, but he nevertheless asked him if he wished to go to the hospital, and Mr. Hashemian refused. [21] Constable Lynch has different version of events. Constable Lynch states when he arrived outside of the lounge, Constable Wilde was struggling with Mr. Sampson. He states he assisted Constable Wilde to restrain him and that Constable Pura subsequently handcuffed him. His affidavit goes on to say: 6. During the struggle with Mr. Sampson, another individual, later identified as Medhi Hashemian, kept trying to push past Constable Pura and Constable Roy Rodgers in order to help his friend. He continued screaming: “Let him go, let him go, you guys are like the KKK”. 7. and other police officers warned Mr. Hashemian to calm down and get out of our way otherwise he would be arrested for obstruction. He was warned at least three times. He refused to calm down and continued to obstruct us while we were engaged in the execution of our duties. 8. The confrontation with Mr. Hashemian continued and determined it was necessary to arrest him and take him into custody. His interference got to point where he was preventing us from doing our job. felt needed to diffuse the situation as it was escalating. As mentioned above, he had been warned several times and decided that needed to arrest him. 9. At the time arrested him, he was on the sidewalk. indicated he was being arrested for obstruction. approached him and turned him around in order to gain control of him and handcuff him. At that time he was not cooperating, he was still yelling and he was squirming. He continued to struggle, as tried to gain control of him, both of us had forward force and we ended up falling into the hood of private vehicle. The forward motion caused Mr. Hashemian to strike the hood of the car with his forehead. handcuffed him and led him to marked patrol car #65. 10. At that time, Mr. Hashemian was bleeding from his forehead so radioed to have an ambulance attend at the scene. The injury was checked by the ambulance attendants and Mr. Hashemian did not require stitches nor bandage. 11. did not purposely knock Mr. Hashemian’s head on the hood of the car. It was an accident which resulted from Mr. Hashemian’s struggling and the forward force from both of us onto the hood of the car. used no more force than was reasonably necessary to arrest Mr. Hashemian. [22] In cross-examination, Constable Lynch agreed he did not consult with any of the other officers before taking the action he did. In cross-examination Constable Lynch denied that he had placed his hand on the back of Mr. Hashemian’s head and propelled his head to the hood of the car. [23] Constable Wilde in his affidavit states: 17. At this point, Constables Pura and Rodgers had joined Constable Lynch and myself outside. We attempted to handcuff Mr. Sampson at which time Mr. Hashemian and Ms. Krupa, who had followed Constables Pura and Rodgers outside, attempted to free their friend Mr. Sampson from custody. They grabbed onto their friend and tried to pull him away from our custody. We warned Mr. Hashemian and Ms. Krupa to stay out of our way or they would be arrested for obstruction. They continued their behaviour while we arrested Mr. Sampson. 18. Constable Lynch and managed to place handcuffs on Mr. Sampson with the assistance of Constable Pura, and as soon as that was completed Mr. Hashemian again tried to push Constable Pura and myself. At this time, Constable Lynch released his hold on Mr. Sampson and arrested Mr. Hashemian. He pushed him against the hood of the car and told him that he would be under arrest for obstruction of police officer. 19. Constables Pura and Rodgers grabbed Ms. Krupa and pushed her to the ground informing her that she was also under arrest for obstructing police officer. All three individuals were handcuffed and each place in different marked patrol car that had attended the scene. With respect to para. 17 above, Constable Wilde was asked in cross-examination whether he was alleging that Mr. Hashemian was trying to pull the police officers away from Mr. Sampson or pull Mr. Sampson away from the police officers. He replied, “I don’t recall all remember is lot of hands being in the way.” With respect to para. 18, he was asked “What do you mean when you say Mr. Hashemian tried to push you.” He replied, “He did not push me hard enough to put me off balance.” He was asked where was Mr. Hashemian when he was pushing you. Constable Wilde replied, “My focus was on Mr. Sampson.” He stated he recalled Ms. Krupa being on his right and Mr. Hashemian being to the left of him. Constable Wilde agreed it was right after Mr. Hashemian made the KKK remark that Constable Lynch arrested Mr. Hashemian. Constable Wilde agreed that he wrote in report to the prosecutor, “Hashemian again tried to push Constables Wilde and Pura Constable Lynch released his hold on Mr. Sampson, grabbed Hashemian and threw him onto the hood of the car.” At this trial, Constable Wilde stated this was poor choice of words on his part and he should have used the word “pushed”. He denied that Mr. Hashemian was put against the car “roughly” and stated he was placed there. At this trial Constable Wilde denied seeing blood on the hood of the vehicle. It was pointed out to him that his notebook stated he did. He then agreed he must have seen it. Post arrest [24] Mr. Hashemian was held in the cells until approximately 7:30 a.m. the same morning, when he was released. The prosecution offered both Mr. Hashemian and Ms. Krupa the diversion program to dispose of their charges. Mr. Hashemian signed diversion contract dated July 23, 2001. This contract is form contract and he added to the statement, “I take responsibility for my actions”, the words, “As explained in the attached statement”. As part of the process, he agreed to make $70.00 charitable donation to the Family Healing Lodge. In the attached statement, he states as follows: This statement is to clarify one of the sections of my mediation contract, namely “taking responsibility for my actions”. Since cannot take responsibility for the things did not do, in the following identify what actions did wrong and am taking responsibility for. At the night in question (May 15th 2001), the whole ordeal with the police would have been avoided if we had left the establishment IMMEDIATELY after they warned they would call the police. believed the establishment was discriminating against Clarence, probably because he was black, since when asked them they did not provide any true reason why he should leave. But that does not matter, should have left with my friends immediately and then filed complaint with the Human Rights Commission against the management later. That would be the right procedure to follow. did not think they really would call the police, but was wrong. We should have left the place right away without waiting for even few minutes. But did not do so and as result, though did not even know it, put Clarence at risk. take responsibility for this mistake. [25] Mr. Sampson was convicted, after trial, of remaining in licensed premises after being required to leave contrary to s. 122(2)(a) of The Alcohol and Gaming Regulation Act, 1997, S.S. 1997, c. A-18.011. WAS THERE REASONABLE AND PROBABLE GROUNDS TO ARREST MR. HASHEMIAN FOR OBSTRUCTION? Credibility [26] accept Constable Pura’s evidence that Ms. Krupa was physically interfering with her and Constable Wilde’s attempts to arrest Mr. Sampson while inside the lounge, and her evidence that Ms. Krupa again physically interfered with the officers attempting to handcuff Mr. Sampson outside of the lounge. Indeed, Ms. Krupa does not deny it. accept Constable Pura’s evidence that while in the lounge, Mr. Hashemian positioned himself between the officers and Mr. Sampson at one point in time, but this ended when Constable Wilde put Mr. Sampson in headlock. accept Constable Pura’s evidence that Mr. Hashemian along with Ms. Krupa grabbed Mr. Sampson at the time Mr. Sampson sat down in the chair, and her evidence that they backed off when advised to do so. Apart from the foregoing, Constable Pura does not describe any act of physical interference by Mr. Hashemian with the officers inside the lounge. Constable Pura’s evidence largely corresponds with the evidence of Mr. Hashemian, Ms. Krupa, and Mr. Sobstel, as well as the bartender. [27] am not able to accept the evidence of the manager as it relates to Mr. Hashemian, because it is at odds with what the other witnesses say, and because her evidence does not distinguish between Ms. Krupa and Mr. Hashemian as to who did what. [28] With respect to what transpired outside of the lounge on the sidewalk, Constable Pura notes Mr. Sampson was about to be placed in the police car, from which infer he was already handcuffed, when Mr. Hashemian and Ms. Krupa again showed up. This corresponds with Constable Rodger’s evidence that he prevented Ms. Krupa and Mr. Hashemian from leaving the lounge for period of time he judged sufficient to have Mr. Sampson placed in police car. Outside of the lounge, Constable Pura refers to Mr. Hashemian continuing to badger the officers with questions and comments but states he was few steps away from anyone else. Constable Pura gives no evidence of Mr. Hashemian personally physically interfering outside of the lounge. This evidence largely supports the evidence of Ms. Krupa and Mr. Hashemian. Constable Rodgers, who assisted Constable Pura to “take down” Ms. Krupa right beside Mr. Sampson, also had no knowledge of physical interference by Mr. Hashemian. [29] Constable Lynch in his affidavit inferentially admits he had to walk to Mr. Hashemian in order to arrest him. At para. above, Constable Lynch states, “I approached him and turned him around .”. This evidence is not consistent with Mr. Hashemian physically interfering with the officers and their dealing with Mr. Sampson at the time of his arrest, and is consistent with the other evidence referred to above that he was not physically interfering. accept Mr. Hashemian’s evidence that Constable Lynch walked to him on the street where he was positioned in order to arrest him. [30] Constable Wilde, who was new recruit being field supervised by Constable Pura, was busy controlling Mr. Sampson up until the point he was handcuffed. Constable Wilde’s evidence causes me to conclude that he does not have specific recall of Mr. Hashemian physically interfering with the arrest of Mr. Sampson. As noted above, conclude that Mr. Sampson was already handcuffed before Mr. Hashemian emerged on the street from the downstairs lounge. Constable Wilde’s affidavit at paras. 17 and 18, supra, suggests the officers were still attempting to handcuff Mr. Sampson when Mr. Hashemian physically interfered. In cross-examination, Constable Wilde, when pressed to provide details of Mr. Hashemian’s personal activity, provided evasive answers with statements such as, “I don’t recall all remember is lot of hands being in the way”; “My focus was on Mr. Sampson”; “He did not push me hard enough to put me off balance”. do not accept Constable Wilde’s evidence that Mr. Hashemian was physically interfering with himself and Constable Lynch immediately prior to his arrest. [31] accept Mr. Hashemian’s evidence that he had not physically interfered with police officers outside of the lounge. [32] Because Mr. Hashemian and Ms. Krupa’s protests related to police officers removing Mr. Sampson from the lounge, it is perhaps worth noting the relevant provisions of The Alcohol and Gaming Regulation Act, 1997 (“the Act”). Section 122(2)(a) states: (2) No person shall: (a) remain in permitted premises after he or she is requested to leave the permitted premises by the permittee or an employee of the permittee. nan Section 149 of the Act states: 149 Any officer may arrest, without warrant, any person whom he or she finds committing an offence against this Act or the regulations. [33] In R. v. Skwark (1987), 1987 CanLII 4705 (SK QB), 63 Sask. R. 272 (Q.B.), this Court had occasion to consider the question, “[a]re the police entitled, when called to licensed premises, to act entirely on the assumption that management has acted correctly in asking patron to leave?” Armstrong J. answered, “yes”. At p. 274 in para. 10 he noted: [10] When patron is asked to leave an outlet, the patron must leave. nan If the patron thinks he has civil claim against the proprietor for requiring him to leave, that is another matter, but leave he must, and leave the complaining until later. There is no room for the patron to respond to policeman called because the patron refused to leave when asked by the proprietor to do so “there’s no reason, I’ve done nothing wrong”. The patron may be right, but it is not for the constable to decide or to be concerned. nan In my view, the police are not only within their right, but are under an obligation in carrying out their duties as policemen to arrest patron, who having been asked to leave the premises by management, and then by them, refused to do so. And at para. [12] If person feels aggrieved by reason by being asked to leave licensed premises the person’s recourse must be against the management of the premises in question in the proper forum and not to resist the request to leave or to resist the police. [34] Indeed, as noted in para. 24 above, Mr. Hashemian belatedly came to the realization that the police were within their rights in performing their duty and removing Mr. Sampson from the premises as reflected in his statement he attached to his diversion contract dated July 23, 2001. [35] Section 129(a) of the Criminal Code states: 129. Every one who (a) resists or wilfully obstructs public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, nan is guilty of (d) an indictable offence and liable to imprisonment for term not exceeding two years, or (e) an offence punishable on summary conviction. [36] In R. v. Gunn (1997), 1997 ABCA 35 (CanLII), 113 C.C.C. (3d) 174 (Alta. C.A.), the Court again confirmed the three elements of the offence set out in s. 129(a): 1. there was an obstruction; 2. of police officer who is in the execution of his or her duty; and 3. the person obstructing did so wilfully. [37] There is no issue in this matter with respect to element Nos. and above. The Saskatoon Police Officers who attended the lounge and became involved in the arrest of Mr. Sampson were in the execution of their duty. Mr. Hashemian does not dispute that he possessed the general intent to make the comments he did throughout the proceedings and as such, he did so wilfully. The issue with respect to Mr. Hashemian’s allegation of wrongful arrest, is whether or not his actions obstructed the peace officers who were in the execution of their duty. [38] good summary of the law of obstruction which adopt, is that of Fradsham P.C.J. in R. v. Whalen (1993), 143 A.R. 234 (Alta. P.C. Crim. Div.), where he stated at p. 237: [18] am satisfied that in order for an accused to be guilty of obstruction, he or she, without lawful excuse, must have done something that affected the work of the police officer. It must have caused the officer to expend more than trifling additional effort. It need not have completely thwarted the work of the officer, but it must result in more than fleeting or momentary diversion or expenditure of effort. Each case will be decided on its own facts. [39] Physical interference by third party with police officer’s attempt to arrest person (as opposed to the person who might be entitled on the facts to resist his or her arrest) seldom causes the courts much problem. Vide: R. v. Saunders (1977), 1977 CanLII 2025 (NS CA), 34 C.C.C. (2d) 243 at 249 (N.S.S.C. App. Div.). When the alleged interference by third party is verbal and not physical, as noted per Picard J.A. in R. v. Gunn, supra, at p. 181: nan Furthermore, any interpretation of “obstructs” must respect the fact that there is in this country, right to question police officer. The cases demonstrate that courts have had difficulties measuring the interaction between individuals and peace officers and drawing the line between innocent and culpable conduct.... [40] When the words used by third party are directed at inciting crowd or others to interfere with police officer’s attempt to arrest, the extra vigilance or action required by the officers of result of the words uttered, are sufficient interference with the execution of their duty. As noted in The King v. McDonald (1911), 1911 CanLII 225 (BC SC), 18 C.C.C. 251 at 252 (B.C.S.C.), per Clement J. at p. 252: Physical interference, take it, is not an essential ingredient. menacing attitude on the part of the mob, entailing on the officer or officers vigilance and care beyond the normal, is an obstruction and this menacing attitude the accused and others with him assumed and persisted in maintaining for some time with the result that the journey to the police station was to the police one of anxiety, calling, as have said, for extra vigilance and care. In my opinion, therefore, there was evidence which, if believed by the learned magistrate, established obstruction. [41] Another example of where words did amount to the requisite culpable interference with police officers in the execution of their duty is R. v. J.L.R., 2002 ABPC 48 (CanLII), (2002), 310 A.R. 213 (Alta. P.C.). In this case the accused was extremely belligerent towards the police officers who were arresting his friend, although he did not make any threats against them or attempt to physically interfere. His yelling and swearing at the police officers caused another group of individuals who were nearby to move towards the location to see what was going on. Out of concern for their own safety, the officers quickly placed the person arrested in the van and drove approximately one kilometre up the road before they stopped in order to charter and caution the person. Lipton P.C.J. concluded at para. 28 In my opinion, the actions of the Accused went beyond inconsiderate and rude behaviour. His actions were not merely momentary lapse. am also of the opinion that the Accused’s actions caused officer Baker to expend more than trifling additional effort. The commotion caused by the Accused led officer Baker and Campbell to conclude their own safety was in jeopardy, consequence that would not likely have occurred had the Accused not continued with his behaviour. [42] Verbal criticism of police officers in the execution of their duty which does not otherwise interfere with them performing their duty has generally been held not to amount to obstruction. As noted per Saunders J. in Titus v. Kinch (1934-35), M.P.R. 359 at 362 (P.E.I.S.C.): nan Police officers frequently become targets of criticism but it seems to me that reputable citizen, as the appellant undoubtedly is, has every right to express his opinion, or even to criticize the conduct of an officer. The evidence shows clearly that there was no assault committed, nor threat made, and that the appellant did not in any way attempt to prevent the officer from performing his duty or to induce anyone else to do so. am at loss to see that an expression of opinion constitutes an obstruction, or amounts to resisting or interfering with an officer. [43] The British Columbia Court of Appeal in R. v. Long (1969-70), C.R.N.S. 298 (B.C.C.A.), addressed the rights of third parties to question the arresting police officers on the reason for the person’s arrest where police officers had not verbalized the same. At p. 302, Davey C.J.B.C. stated: that prisoner or someone speaking for him is entitled to know the reason for his arrest and to make such statement in answer to it, and that an exercise of that right cannot be converted into obstruction unless it be intemperate, unduly persistent, irrelevant or be made in an unreasonable manner. There is nothing in the evidence to show that the argument about the arrest exceeded the occasion so as to justify McLachlan’s refusal to listen. Davey C.J.B.C. went on to state at p. 305: add that nothing have said is intended to apply to officious interference by friends of prisoner or bystanders while the police are making an arrest, or to verbal abuse, excessive or intemperate criticism of or comments on the police, or to undue pertinacity in discussion or argument by those entitled to inquire or give explanations. agree that those things may constitute obstruction. nan The foregoing statements by Davey C.J.B.C. have been quoted in number of subsequent cases. Vide: Sandison v. Rybiak (1973), 1973 CanLII 623 (ON SC), 39 D.L.R. (3d) 366 at 375 (Ont. H.C.); Carr v. Gauthier (1992), 1992 CanLII 6189 (AB QB), 97 D.L.R. (4th) 651 at 659 (Alta. Q.B.). [44] As noted in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, an officer arresting without warrant must subjectively have reasonable and probable grounds on which to base the arrest, and in addition, those grounds must be justifiable from an objective point of view. This means that reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the person’s arrest. This test does not go so far as to require the police officer to establish prima facie case for conviction before making the arrest. [45] At the outset, it should be said, that counsel for Mr. Hashemian approached the case on the basis that Mr. Hashemian’s involvement should be treated in isolation apart from the involvement of Ms. Krupa. His position is that Mr. Hashemian did not physically interfere with the officers and he should be judged on his personal interaction with the police officers. am not able to agree. From the moment the police officers entered the lounge, Mr. Hashemian and Ms. Krupa became involved in joint enterprise, meaning common enterprise with common purpose; namely, to dissuade the police officers from removing Mr. Sampson from the lounge, to dissuade them from arresting Mr. Sampson, and to be critical of their actions throughout. As noted above in the resume of evidence, number of the witnesses had difficulty distinguishing between Mr. Hashemian and Ms. Krupa as to who did what and when. It would be pure speculation to try and assess what the course of events might have been had either one of them been acting alone. [46] What was clear to Constable Pura, was that Mr. Hashemian and Ms. Krupa’s combined actions were creating a scene that caused her to become concerned for police officers’ safety to the point she called for backup. Constable Pura had enough experience to know that two hostile persons criticizing police officers in the process of arresting person who was non-compliant, in an establishment where alcohol was consumed and other persons were present, had the potential to escalate. For this reason, Constable Pura instructed Constable Wilde to remove Mr. Sampson from the lounge as quickly as possible. [47] Once Constable Wilde removed Mr. Sampson from the lounge, Constable Pura positioned herself at the inside doorway to prevent Mr. Hashemian and Ms. Krupa from following Constable Wilde until she was relieved by Constable Rodgers who continued to do the same. Mr. Hashemian then, and at trial, was quite critical of both officers for restraining his right to exit the premises. Mr. Hashemian then, and now, does not appreciate that police officers also have sworn duty to preserve the peace and prevent crime, which will sometimes involve restricting the movement of members of the public. Section 36(2)(a) of The Police Act, 1990, states: 36(2) Unless otherwise indicated in his or her appointment, member has the power and the responsibility to: (a) perform all duties that are assigned to constables or peace officers in relation to: (i) the preservation of peace; (ii) the prevention of crime and offences against the laws in force in the municipality; and (iii) the apprehension of criminals, offenders and others who may lawfully be taken into custody. [48] In Knowlton v. The Queen (1973), 21 C.R.N.S. 344 (S.C.C.), the appellant was arrested and charged with obstruction for breaking police cordon set up as security measure to protect Premier Kosygin of the U.S.S.R. The issue was whether the police officers were in the execution of their duty in taking such preventative measure. Fauteux C.J.C. on behalf of the Court at p. 348 concluded: nan In this respect, they had specific and binding obligation to take proper and reasonable steps. The restriction of the right of free access of the public to public streets, at the strategic point mentioned above, was one of the steps not an unusual one which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid. In my opinion, such conduct of the police was clearly falling within the general scope of the duties imposed upon them. [49] It was perfectly obvious to Constable Pura that the reason Mr. Hashemian and Ms. Krupa wished to leave the premises was to follow Constable Wilde and Mr. Sampson. Constable Pura could not know what exactly either of them had in mind to do if allowed to leave. Constable Pura had responsibility to protect her partner and to minimize the possibility of further or escalated action on the part of Mr. Hashemian or Ms. Krupa. Constable Pura, and subsequently Constable Rodgers, had valid police purpose for restricting the movement of Mr. Hashemian and Ms. Krupa in the manner they did. When Constable Rodgers decided the police purpose had been accomplished, he ceased the restriction; prematurely, as it turned out. The subsequent actions of Mr. Hashemian and Ms. Krupa point out the validity of the reasons for imposing the restriction in the first place. [50] Once Mr. Hashemian and Ms. Krupa reached the street, their opposition to the police officers’ action continued and indeed escalated. Ms. Krupa chose to physically interfere by grabbing at Mr. Sampson. Mr. Hashemian chose to increase his rhetoric and criticism to more strident level. Whether Mr. Hashemian’s more strident approach was prompted by his knowledge that he and Ms. Krupa were at least partly responsible for the fact Mr. Sampson did not voluntarily leave the premises when requested to do so, and thereafter, their actions prompted the police officers to remove Mr. Sampson from the lounge in manner that might not otherwise have been necessary, or some other reason, the fact is that both individually and in combination their actions escalated. [51] It is worth noting that from the outset, Mr. Hashemian knew why Mr. Sampson was being requested to leave the lounge, and he knew Mr. Sampson was arrested because he declined to voluntarily do so. The case law which states third person may, in certain circumstances, question police officers as to why they are effecting an arrest, has no application on the facts in this matter. [52] The combined actions of Mr. Hashemian and Ms. Krupa clearly interfered with Constable Pura’s and Constable Wilde’s dealings with Mr. Sampson to the point Constable Pura called for backup help. Once the backup officers arrived, one of them was required to expend time and effort restricting the movements of Mr. Hashemian and Ms. Krupa from exiting the lounge. Once on the street, the police officers were again confronted by each of them. Their combined actions clearly affected the work of the police officers in the execution of their duty and caused them to expend more than additional trifling effort to deal with them. The actions and participation of Mr. Hashemian as described above provided reasonable and probable grounds to believe Mr. Hashemian was obstructing the police officers in the course of their duty. [53] On the facts in this matter, the same conclusion is arrived at based solely on Mr. Hashemian’s individual actions. In the words of Davey C.J.B.C. quoted above, his officious interference consisting of verbal abuse, excessive and intemperate criticism, and his undo pertinacity in discussion and questioning provided the reasonable and probable grounds. Mr. Hashemian’s verbal onslaught went well beyond an expression of opinion or legitimate questioning. [54] Counsel for Mr. Hashemian raised the question of whether Constable Lynch, who effected the arrest of Mr. Hashemian without consulting with other officers present, personally had reasonable and probable grounds. What if any conversations took place between Constable Pura and Constables Lynch and Wilde when she joined them at street level, or what conversation had taken place between Constable Lynch and Constable Wilde prior to Constable Pura’s appearance, was not the subject of evidence. What Constable Lynch did know is that he and Constable Rodgers had been called in as backup to assist, not in the arrest of Mr. Sampson, but to assist in dealing with two other individuals as necessary. The two individuals appeared shortly after he arrived, and behaved in the manner earlier described, which would suggest to anyone rather persistent effort on their part over period of time. Constable Lynch had the opportunity to observe the actions of Ms. Krupa and heard Mr. Hashemian’s remarks. He testified he subjectively believed Mr. Hashemian was interfering with the police officers in the execution of their duty, and based on his knowledge, as set out above, his subjective conclusion was objectively reasonable. [55] Mr. Hashemian’s actions provided reasonable and probable grounds to believe he was obstructing police officers in the execution of their duty. Section 495(2) and (3) of the Criminal Code of Canada [56] Section 495(2) of the Criminal Code of Canada states: (2) peace officer shall not arrest person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. [57] Constable Lynch testified he arrested Mr. Hashemian to prevent the continuation of the offence he had reasonable and probable grounds to believe Mr. Hashemian was committing. The other police officers who testified agreed this action was appropriate. Mr. Hashemian had already been warned several times to cease his activity and had declined to do so. At the point of his arrest Mr. Hashemian’s identity had not been established and the police officers had no information on which they could assess whether he would in due course attend court when required to do so. Mr. Hashemian’s arrest was reasonable to prevent the continuation of the offence. [58] The suggestion was made by counsel for Mr. Hashemian that he should have been released pursuant to s. 498 of the Criminal Code upon arrival at the police station and not been processed through detention and incarcerated. Mr. Hashemian did have identification, and accept that there was no reason at this point to believe he would not appear in court if released on promise to appear. The police officers who testified indicated that once person under arrest is brought to detention, the decision on whether or not the person shall be released is made by the officer in charge of detention. That person is not named defendant and this ground was not specifically pleaded. In the absence of any evidence from the officer in charge of detention it is not appropriate to consider this ground any further. This Court is in position to assess whether the belief of the officer in charge is reasonable, but is not in position to guess what that belief was. [59] The action for wrongful arrest and/or detention is dismissed. WAS MR. HASHEMIAN ASSAULTED? [60] am not able to accept Constable Lynch’s evidence on how Mr. Hashemian received the cut in his hairline over the left eye. Mr. Hashemian presents as non-athletic person who states he weighs 140 pounds. Constable Lynch agreed with counsel for Mr. Hashemian that he weighs 200 pounds or more. Constable Lynch’s version that Mr. Hashemian was resisting to the extent he was required to initiate forward momentum that drove Mr. Hashemian into the hood of the car, strikes me as being inconsistent with Mr. Hashemian’s non-physical involvement up to that point in time, and what perceive would be Constable Lynch’s ability to control him if he did resist. Constable Wilde’s observation in his report to the prosecutor that Constable Lynch “threw him onto (not into) the hood of the car” [emphasis added] accords with Mr. Hashemian’s version of what happened, and is inconsistent with Constable Lynch’s version. Perhaps, most conclusively, the cut received by Mr. Hashemian up in his hairline over the left eye is not explained by Constable Lynch’s version of what happened. The cut is simply too high on the head to have been the result of face plant on the hood of the car solely as result of forward momentum into the car. The cut is consistent with Mr. Hashemian’s evidence on how he received the cut. [61] The result is accept Mr. Hashemian’s evidence that Constable Lynch placed his hand behind his head and drove it down onto the hood of the vehicle. also accept Mr. Hashemian’s evidence that he did nothing that would justify this action on the part of Constable Lynch. It follows that also reject Constable Lynch’s evidence that he used no more force than was necessary to effect the arrest. I find Constable Lynch assaulted Mr. Hashemian. DAMAGES Compensatory damages (i) General Damages [62] The cut received by Mr. Hashemian was a minor one, not requiring stitches or immediate medical attention. accept Mr. Hashemian’s evidence that his head struck the hood of the vehicle with significant force, and that he experienced headaches for several weeks thereafter, before they resolved. He also experienced stiff neck and sleep disturbance for several weeks. He experiences no long term effects from the blow to his head. This was minor assault on the relative scale of assaults, and resulted in minor physical damage. Considering the awards for similar type damage in similar type assaults, appropriate compensation for the injury conclude is $2,500.00. Mr. Hashemian is entitled to pre-judgment interest on this amount. (ii) Special Damages [63] Mr. Hashemian claims he lost his watch worth $600.00 sometime after the police officers entered the lounge. The booking form completed at detention recorded number of Mr. Hashemian’s personal items but there is no reference to watch. Mr. Hashemian admits he is not certain when he lost his watch. In the circumstances he has failed to prove that any one of the defendants is responsible for the loss of the watch. [64] Mr. Hashemian did not prove any other special damage. Exemplary damages [65] Any discussion on an award of punitive or exemplary damages at this point begins with the Supreme Court of Canada decision in Whiten v. Pilot Insurance Co. (2002), 2002 SCC 18 (CanLII), 209 D.L.R. (4th) 257. At pp. 296-97, Binnie J. emphasized that punitive damages should only be awarded where the misconduct of the defendant is so outrageous that punitive damages are rationally required to act as deterrence in the future. He went on to note “[t]he ‘rationality’ test applies both to the question of whether an award of punitive damages should be made at all, as well as to the question of its quantum.” In conducting comparative survey from other countries on their approach to punitive damages Binnie J. concluded at p. 288: Third, there is recognition that the primary vehicle of punishment is the criminal law (and regulatory offences) and that punitive damages should be resorted to only in exceptional cases and with restraint. [66] On the facts in this matter three members of the Saskatoon Police Service behaved professionally, and with restraint, in their dealings with Mr. Hashemian and Ms. Krupa. One member, Constable Lynch, did not. On the facts the assault on Mr. Hashemian was not the result of systemic problem in the Saskatoon Police Service that requires an award of punitive damages to deter such conduct on the part of other police officers in the future. The assault on Mr. Hashemian by Constable Lynch was spontaneous and consisted of single act. It was unacceptable conduct, but there is no reason to believe that this finding will not be sufficient to deter him from such conduct in the future. There is also discipline process in place to address such conduct. In the end do not consider there is rational need for the making of an award of punitive damages in this matter. COSTS [67] While I have concluded it is not an appropriate case to award punitive damages, I am of the view the plaintiff should not be penalized in legal costs for having brought the case forward. Counsel for Mr. Hashemian estimated his solicitor-client costs in the matter at $6,000.00. I award Mr. Hashemian legal costs in the amount of $6,000.00 plus taxable disbursements. [68] The action against Constables Pura and Wilde is dismissed. [69] The action against Constable Lynch for unlawful arrest and detention is dismissed. [70] The action against Constable Lynch for assaulting Mr. Hashemian is proven. [71] Compensatory damages for the assault are allowed in the amount of $2,500.00 plus pre-judgment interest. [72] The action for exemplary damages is dismissed. [73] Costs are awarded in the amount of $6,000.00 plus taxable disbursements. [74] Judgment accordingly. J. 2005 SKQB 51 Q.B.G. A.D. 2001 No. 2564 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MEHDI HASHEMIAN and JAMES WILDE, BLAINE LYNCH, ASTRID PURA and THE CITY OF SASKATOON DEFENDANTS E. Scott Hopley for the plaintiff Patricia J. Warwick and Blair P. Bleakney for the defendants CORRIGENDUM to Judgment dated January 24, 2005 LAING J. January 25, 2005 [1] Subsequent to the judgment of January 24, 2005, it was brought to my attention by counsel, that the plaintiff discontinued his action against the City of Saskatoon on May 14, 2002. The references to the City of Saskatoon in the judgment including the style of cause are, therefore, in error. [2] The City of Saskatoon is deleted as defendant. [3] Paragraph 74 of the judgment assigning vicarious liability to the City of Saskatoon is deleted.
The plaintiff seeks damages for unlawful arrest and assault, including aggravated or punitive damages arising out of events which resulted in his arrest and a charge of obstruction. During the course of his arrest, the plaintiff received cut to his scalp. He remained in custody until released at approximately 7:30 a.m. that morning. The three named defendants are members of the Saskatoon Police Service. The City of Saskatoon is their employer. HELD: The action for wrongful arrest is dismissed. The plaintiff was assaulted when his head was driven onto the hood of the vehicle. The plaintiff is awarded $2,500 in general damages and pre-judgment interest on that amount. It is not an appropriate case to award punitive damages, but the Court awarded solicitor client costs to the plaintiff in the amount of $6,000 plus taxable disbursements. 1) The Court accepted the plaintiff's evidence that he did not physically interfere with the police officers outside of the lounge. The police officers that attended at the lounge and became involved in the arrest of Mr. Sampson were in the execution of their duty. The plaintiff does not dispute that he possessed the general intent to make the comments that he did throughout the proceedings and that he did so wilfully. The issue is whether or not his actions obstructed the police officers, who were in the execution of their duty. 2) The combined actions of the plaintiff and Ms. Krupa clearly interfered with the police officers' arrest of Mr. Sampson, to the point that Constable Pura called for back-up help. Once the back-up officers arrived, one of them was required to expend time and effort restricting the movements of the plaintiff and Ms. Krupa. Once on the street, they again confronted the police officers. Their combined actions clearly affected the work of the police officers in the execution of their duty. There were reasonable and probable grounds to believe the plaintiff was obstructing the police officers in the course of their duty. 3) On the facts in this matter, the same conclusion is arrived at based solely on the plaintiff's individual actions. The plaintiff's officious interference consisted of verbal abuse, excessive criticism and undue pertinacity in his discussion and questioning and provided reasonable and probable grounds to believe he was obstructing police officers in the execution of their duty. The action for wrongful arrest is dismissed. 4) The cut to the plaintiff's head is a minor one, not requiring stitches or immediate medical attention. The plaintiff experienced headaches for several weeks. He also had stiff neck and sleep disturbance. There were no long term effects. Corrigendum received January 25, 2005 and added to fulltext.