DATE: 20050712
DOCKET: C42950
|
B E T W E E N : |
|
|
|
|
|
REVEREND BROTHER WALTER A. TUCKER and REVEREND BROTHER MICHAEL J.
BALDASARO |
Reverend Michael J.
Baldasaro Reverend Walter A.
Tucker |
|
|
|
|
|
Andrew K. Lokan |
|
- and - |
Amicus Curiae |
|
|
|
|
THE CADILLAC FAIRVIEW CORPORATION LIMITED |
Kenneth G. Crompton |
|
|
|
|
|
|
|
|
|
|
Heard: July 4, 2005 |
|
On appeal
from order of the Divisional Court (Justice Edward F. Then, Justice P. Theodore
Matlow and Justice D. R. Aston) dated July 23, 2004.
1.
[1]
On November 25, 2000,
the appellants Reverend Baldasaro and Reverend Tucker were forcibly arrested
for trespassing by security guards employed by the respondent Cadillac Fairview
(“C.F.”). The primary issue on this
appeal concerns the lawfulness of their arrest under s. 9 of the Trespass to
Property Act, R.S.O. 1990, c. T.21 (“TPA”). Secondarily, the appellants challenge the
trial judge’s order as to costs.
2.
Findings at Trial
3.
[2]
Following their
arrests, the appellants commenced an action against C.F. in which they sought
damages for various wrongs, including false arrest and false imprisonment. The trial proceeded before Lofchik J. and a
jury.
4.
[3]
At trial, based on the
instructions provided by the trial judge, the jury found that the security
guards employed by the respondent C.F. were lawfully entitled to arrest the
appellants for trespassing. In the case
of Reverend Baldasaro, the jury further found that the force used by the
security guards in effecting his arrest was not unreasonable and that he
suffered no physical injuries.
Accordingly, the jury awarded no damages to him for pain and
suffering. In the case of Reverend
Tucker, the jury found that the force used by the security guards in effecting
his arrest was more than reasonably necessary.
The jury further found that Reverend Tucker suffered physical injuries
from the arrest and they awarded him $15,000 in damages for pain and suffering.
5.
[4]
In response to a
question designed to determine what damages (over and above damages for
physical injury) the jury would have awarded had they found the arrest of the
appellants to be unlawful, the jury assessed Reverend Baldasaro’s damages at
$3,000 and Reverend Tucker’s damages at $2,000.
6.
[5]
With respect to costs,
the trial judge gave two reasons for refusing to award costs to Reverend Tucker
despite his success in the action. First,
he found that Rule 76.13(3) of the Rules of Civil Procedure applied and
that Reverend Tucker could therefore not recover any costs because he had not
brought his action under the simplified procedure specified in Rule 76. Alternatively, the trial judge concluded that
Reverend Tucker was not entitled to costs because he did not prove that he had
“incurred any opportunity cost by foregoing remunerative activity in carrying
on this litigation…”.
7.
[6]
With respect to
Reverend Baldasaro, the trial judge ordered that he pay costs to C.F. in the
amount of $20,500.
8.
Brief Overview of Facts
9.
[7]
Because we have
concluded that there must be a new trial in this matter, we propose to keep our
review of the facts to a minimum.
10.
[8]
The appellants were
permitted to pursue their appeal to the Divisional Court without the trial
transcripts. On agreement of the
parties, the trial transcripts were not provided to this court. The following overview comes from the trial
judge’s charge to the jury which the respondent concedes we can rely on as
accurately depicting the salient evidence.
11.
[9]
On November 25, 2000,
during the 2000 federal election campaign, Marijuana Party Candidate for
Hamilton-East, Reverend Baldasaro, and his colleague, Reverend Tucker, were in
the Eastgate Square Shopping Centre in Hamilton. The mall is owned by the respondent C.F.
12.
[10]
According to
information allegedly received by security guards employed by C.F., both men
were handing out flyers and buttons for the political party without C.F.’s
permission and were accordingly in breach of the rules governing such activity
in the mall.
13.
[11]
Approximately two weeks
earlier, Reverend Baldasaro had been in the mall and a security guard asked him
to leave when he was observed to be collecting signatures in support of his
candidacy. At that time, according to
the security guard, he told Reverend Baldasaro that he would have to obtain the
owner’s permission if he wished to engage in such activity. The appellant was not, however, given a
trespass notice, nor did he continue to engage in the prohibited activity after
being told to leave. Rather, he left the
mall without further incident.
14.
[12]
Returning to the events
of November 25th, at the time of their arrest, the appellants were standing
outside of a book store located in the mall.
They were approached by security guards who informed them that
soliciting in the mall was forbidden and that they were trespassing. The guards further told them they were to
leave the mall immediately, failing which they would be arrested. According to the security guards, the
appellants refused to leave. Reverend
Tucker is reported to have said “go ahead and arrest us because we’re not
leaving”.
15.
[13]
The appellants disputed
that evidence. They claimed that after
they were approached and told to leave, they replied that they would leave as
soon as Reverend Tucker had purchased a book from the book store. The appellants further testified that they
told the guards that they would be willing to wait for a police officer to come
if the guards wished.
16.
[14]
As it happened, a
police officer was on the premises at the time.
He testified that he would have responded to a call for assistance from
the security guards had he received such a request, provided “there was someone
there to look after the arrested party he was [already] dealing with” in the
security office. The officer
acknowledged that there were two other security people in the office at the
time. Be that as it may, no such request
for the police officer’s assistance was made and the appellants were forcibly
arrested by the security guards and taken to the security office where they were
turned over to the police officer. The
officer later accompanied the appellants out of the mall, after having taken
them to the book store where Reverend Tucker bought a book.
17.
Liability
18.
[15]
The narrow issue on
appeal is whether the forcible arrest of the appellants was lawful in the
circumstances. In assessing the
lawfulness of the appellants’ arrest, the jury was not instructed to consider
whether, in all of the circumstances, forcible arrest was a reasonable course
of action for the security guards to take in the first place. In other words, was a forcible arrest
justified? Assuming that the jury should
have been so instructed, it is common ground that the judgment under review
cannot stand and a new trial must be ordered.
19.
[16]
The notion that such an
instruction should have been provided to the jury derives from the decision of
the Supreme Court of Canada in R. v. Asante-Mensah, [2003] 2 S.C.R.
3. Unfortunately, that decision was not
available to the trial judge at the time of trial. It was available to the Divisional Court, but
in fairness, it is not at all clear that the “justification to arrest” issue
was raised in that court.
20.
[17]
In Asante-Mensah,
the Supreme Court of Canada considered the limits of the arrest power in s. 9
of the TPA and in particular, the right of citizens to use reasonable
force in making an arrest that is otherwise lawful under that provision. Writing for a unanimous court, Binnie J.
found that under s. 9, an occupier could use reasonable force both to institute
the status of an arrest and to maintain it.
In the context of discussing the level of force that would be considered
reasonable, Binnie J. made the following observations at paras. 71 and 73 to 76
of his judgment:
[71] Many trespasses are
of trivial importance. They are best handled by means short of an arrest. This
was recognized in the 1987 Ontario Ministry of the Attorney General's paper This
land is whose land?, supra, at pp. 14-15:
An arrest is a grave imposition on another person's liberty and should only
be attempted if other options prove ineffective. Further, an arrest attempt may lead to a
confrontation more serious than the initial offence of trespass, and should be
exercised with caution. Excessive force or improper use of the arrest power,
may leave the occupier, or a designated agent, open to both criminal charges
and civil liability.
…
[73] A certain amount of
latitude is permitted to police officers who are under a duty to act and must
often react in difficult and exigent circumstances: Cluett v. The Queen,
[1985] 2 S.C.R. 216, at p. 222; R. v. Biron, [1976] 2 S.C.R. 56, at p.
64 (Laskin C.J., dissenting); Besse v. Thom (1979), 96 D.L.R. (3d) 657
(B.C. Co. Ct.), at p. 667, reversed on other grounds at (1979), 107 D.L.R. (3d)
694 (B.C.C.A.); R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.), at
p. 218. The same latitude will not necessarily be shown to an occupier who is
under no duty to act and who instigates a confrontation with a trespasser.
[74] Further,
"reasonable force" in the context of the TPA may have to have regard
not only to what force is necessary to accomplish the arrest, but also to
whether a forcible arrest was in all the circumstances a reasonable course of
action in the first place. I say this because determining whether "a
defendant who claims to have been enforcing the criminal law is liable in tort
necessarily involves taking into account what the criminal law states is or is
not justifiable conduct" (emphasis added): G. H. L. Fridman, The
Law of Torts in Canada (1989), vol. 1, at p. 70.
[75] Justification in
the criminal law looks at a broader range of factors than simply the physical
force required to restrain a person arrested: see, e.g., R. v. Simpson,
(1993), 79 C.C.C. (3d) 482 (Ont. C.A.), in which it was explained per
Doherty J.A., at p. 499, that justifiability under s. 25 Cr. C. (and, by
extension, s. 146 of the Provincial Offences Act)
depends
on a number of factors including the duty being performed, the extent to which
some interference with individual liberty is necessitated in order to perform
that duty, the importance of the performance of that duty to the public good,
the liberty interfered with, and the nature and extent of the interference.
[76] This dictum was
approved and applied by this Court in Godoy, supra, at para. 18 [R.
v. Godoy, [1991] 1 S.C.R. 311], and is quite consistent, it seems to me,
with the advice mentioned earlier in the 1987 Ministry of the Attorney
General's paper This land is whose land?, supra, that an arrest
"should only be attempted if other options prove ineffective" (p.
14). It is also consistent with s. 495(2) Cr. C. which provides that a
police officer shall not make an arrest (unless a warrant is obtained) with
respect to summary conviction (and some other lesser) offences unless it is
necessary to do so to establish the identity of the person arrested, to secure
or preserve evidence of or relating to the offence, to prevent the continuation
or repetition of the offence or the commission of another offence, or to secure
the attendance in court of the person arrested. I mention this argument
because, in a proper case, it might provide a further constraint in tort on any
potential abuse of s. 9. The scope of justification in the context of a TPA
arrest will have to await a proper case where an occupier who is sued in tort
as a result of a TPA arrest is called upon to demonstrate that the arrest, as
well as the force used to effect it, was reasonable in all the circumstances
(emphasis added).
21.
[18]
We take these passages
to mean that in assessing whether a forcible arrest for trespassing is lawful,
the inquiry does not begin and end with an assessment of the degree of force
used to effect and/or maintain the arrest; rather, it begins with the question
whether the use of the arrest power was itself proper – that is, was it
justified in the circumstances?
22.
[19]
Contrary to the
submission of the respondent, we do not read Binnie J.’s reasons as leaving
open the question whether “justification to arrest” is a factor that must be
considered in assessing the lawfulness of a forcible arrest for
trespassing. On the contrary, what
Binnie J. left open was the “scope of justification in the context of a TPA arrest…”. That, he observed, was something that would
“have to await a proper case where an occupier who is sued in tort as a result
of a TPA arrest is called upon to demonstrate that the arrest, as well
as the force used to effect it, was reasonable in all the circumstances”.
23.
[20]
Further support for our
conclusion that “justification to arrest” is an integral component in assessing
the lawfulness of an arrest is found in para. 78 of Binnie J.’s reasons, under
the heading “Application to the Facts of this Case”. Notably, in assessing whether the trial judge
was correct in concluding that the forcible arrest of Mr. Asante-Mensah for
trespassing was lawful, Binnie J. commenced his analysis by pointing out that
the “trial judge was under no doubt that arrest was a reasonable course of
action on the facts of this case. All other
attempts to secure the appellant’s compliance had failed…”. Binnie J. then went on to consider the second
branch of the test, namely, whether the amount of force used was reasonable.
24.
[21]
In our view, there
would have been no reason for Binnie J. to address the issue whether the arrest
was a reasonable course of action had he not considered the “justification to
arrest” component to be consequential in the lawful arrest analysis. Indeed, given the very real concern about the
potential escalation of violence when ordinary citizens are given the right to
use force in furtherance of their private interests, we consider the need for a
“justification component” in the lawful arrest analysis to be particularly
pressing. As Binnie J. noted at para.
76, “it might provide a further constraint in tort on any potential abuse of s.
9”.
25.
[22]
To the extent that
Binnie J.’s remarks about “justification to arrest” may be said to be obiter
given the narrow issue the court was called upon to decide, those comments are
nonetheless binding on this court. See R. v. Miller (1982), 39 O.R. (2d)
41 at p. 48 where Cory J.A. stated: “in Ontario it has always been understood
that the obiter remarks of the majority of the Supreme Court of Canada
constitute a considered opinion that should be followed by the courts of this
province.”; see also Sellars v. The Queen, [1980] 1 S.C.R. 527.
26.
Application to the Case at Hand
27.
[23]
The facts in Asante-Mensah
were extreme. It was clearly a case in
which arrest was a reasonable course of action because all other attempts to
secure Mr. Asante-Mensah’s compliance had failed (at para. 78). The same, however, cannot necessarily be said
about the case at hand. In our view,
justification to arrest is very much a live issue on the facts and
circumstances of this case.
28.
[24]
In that regard, without
in any way prejudging the matter, we think that in addition to the factors
referred to in para. 75 of Asante-Mensah, the following non-exhaustive
list of factors are relevant to the issue of justification:
29.
· What had the appellants done to
cause the security guards to view them as trespassers? Were these activities the subject of a
complaint?
30.
· Were the appellants acting in a
disruptive manner either before their arrest or at the time of their arrest?
31.
· Had the appellants previously
received a trespass notice? Had they
previously been prosecuted for trespassing?
32.
· Is it likely that the appellants
would have left the mall in a reasonable period of time had Reverend Tucker
been given the opportunity to purchase the book that he wished to buy?
33.
· Once the appellants were apprehended
by the guards, did they offer to wait for a police officer to attend?
34.
· Was it necessary to arrest the
appellants to prevent them from continuing their prohibited conduct of
soliciting?
35.
· Did the security guards know the
identity of the appellants?
36.
· Was the arrest of the appellants
necessary to preserve relevant evidence?
37.
[25]
These and other
questions cannot be answered by this court, particularly in view of the state
of the appeal record. We raise them
simply to underscore our conclusion that the issue of justification to arrest
is very much a live issue in this case and in our view, it should have been
left to the jury. Unfortunately, through
no fault of the trial judge, it was not.
Accordingly, there must be a new trial.
38.
Costs
39.
[26]
At the conclusion of the trial, the trial judge awarded no costs to Reverend
Tucker and awarded costs against Reverend Baldasaro on a partial indemnity
basis fixed in the amount of $20,500. As we are sending this matter back for a
new trial, those costs awards are set aside.
40.
[27]
At any new trial, in assessing the applicability of Rule 76.13(3), the
trial judge may consider with respect to the first trial, the reasonableness of
these two unrepresented plaintiffs failing to use the simplified procedure
under Rule 76 when that procedure was not drawn to their attention by an
objection to the ordinary procedure in the respondent’s statement of defence or
in any other manner before the argument on costs at the conclusion of trial.
41.
[28]
As well, the trial judge may consider that only one procedure was
utilized in this case that would not have been available under the simplified
procedure: examination for discovery of the plaintiffs by the defendant. This
worked to the defendant’s advantage. Furthermore, the plaintiffs did not
examine the defendant for discovery so that the plaintiffs’ use of the ordinary
procedure did not, at least in this regard, add to the cost of the proceeding.
42.
Conclusion
43.
[29]
In the result, the appeal is allowed, the judgment below is set aside
and a new trial is ordered.
44.
[30]
As the appellants were successful on this appeal they are entitled to
their costs of the appeal before this court and before the Divisional Court. We
fix those costs in the total amount of $3000 – inclusive of GST and
disbursements – for each appellant. The costs awarded on the first trial are
set aside and left to the judge hearing the second trial.
“K. Weiler J.A.”
“M. Moldaver J.A.”
“S. Lang J.A.”