Crampton v. Walton,

• Judge: Fruman,Paperny,Rowbotham
• Neutral Citation: 2005 ABCA 81
• Court: Court of Appeal (Alberta)
• Date: 06 December 2004
• Citation: 2005 ABCA 81,(2005), 363 A.R. 216 (CA),250 DLR (4th) 292,[2005] 6 WWR 414,363 AR 216,40 Alta LR (4th) 28,194 CCC (3d) 207,29 CCLT (3d) 191,[2005] CarswellAlta 218,[2005] AJ No 178 (QL),343 WAC 216,343 W.A.C. 216,363 A.R. 216,250 D.L.R. (4th) 292,[2005] A.J. No 178 (QL),(2005), 363 AR 216 (CA)

Crampton v. Walton (2005), 363 A.R. 216 (CA);

    343 W.A.C. 216

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. FE.134

R. Darryl Crampton (respondent/plaintiff) v. Steve Walton, Kevin Forsen, Stuart Morse, Anthony Manning, Kirk L. McCallum, Richard M. Demchuk, Michael N. Bossley, Christopher F. Fileccia, Trevor D. Daroux and Christine Silverberg (appellants/defendants)

(0301-0241-AC; 2005 ABCA 81)

Indexed As: Crampton v. Walton et al.

Alberta Court of Appeal

Fruman and Paperny, JJ.A., and Rowbotham, J.(ad hoc)

February 24, 2005.

Summary:

The police entered the plaintiff's house with a warrant to search for drugs. Although the warrant did not include weapons, the police believed that weapons might be present in the house. Upon entry, Constable Manning ordered the plaintiff to kneel on the floor, pushed him to the floor and pinned him there by kneeling on his back for 10 minutes. No drugs or weapons were found. The police had faulty intelligence and the wrong suspect. The plaintiff sued the police chief and individual police officers for damages for assault.

The Alberta Court of Queen's Bench allowed the action. The defendants appealed.

The Alberta Court of Appeal dismissed the appeal.

Evidence - Topic 123

Degree, standard or burden of proof - Burden of proof - Burden of proof in civil actions - Defences - [See second Police - Topic 5149].

Police - Topic 5145

Actions against police - For assault and battery - Excessive force - The police entered the plaintiff's house with a warrant to search for drugs - Although the warrant did not include weapons, the police believed that weapons might be present in the house - Upon entry, Constable Manning ordered the plaintiff to kneel on the floor, pushed him to the floor and pinned him there by kneeling on his back for 10 minutes - No drugs or weapons were found - The police had faulty intelligence and the wrong suspect - The plaintiff sued the police chief and individual police officers for damages for assault - The Alberta Court of Appeal affirmed that the defendants could not rely on s. 25(1) of the Criminal Code as a defence - There was insufficient evidence to prove that they had reasonable grounds for their aggressive actions in executing the warrant - The force used in securing and restraining the plaintiff was unnecessary.

Police - Topic 5149

Actions against police - For assault and battery - Defences - Justification of force -[See Police - Topic 5145].

Police - Topic 5149

Actions against police - For assault and battery - Defences - Justification of force -The police entered the plaintiff's house with a warrant to search for drugs - Although the warrant did not include weapons, the police believed that weapons might be present in the house - Upon entry, Constable Manning ordered the plaintiff to kneel on the floor, pushed him to the floor and pinned him there by kneeling on his back for 10 minutes - No drugs or weapons were found - The police had faulty intelligence and the wrong suspect - The plaintiff sued the police chief and individual police officers for damages for assault - The Alberta Court of Appeal held that if the police wished to defend on the basis of s. 25(1) of the Criminal Code, they bore the burden of establishing that reasonable grounds existed for executing the warrant in an aggressive manner - They also bore the risk of being unable to access the protection of s. 25(1) if they adduced insufficient evidence - If the police needed the contents of the information to establish the s. 25(1) defence, it was their obligation to unseal it.

Police - Topic 5149

Actions against police - For assault and battery - Defences - Justification of force -The police entered the plaintiff's house with a warrant to search for drugs - Although the warrant did not include weapons, the police believed that weapons might be present in the house - A police officer aggressively subdued the plaintiff - No drugs or weapons were found - The police had faulty intelligence and the wrong suspect - The plaintiff sued the police chief and individual police officers for damages for assault - The defendants relied on s. 25(1) of the Criminal Code as a defence - The Alberta Court of Appeal stated that "Unlike many cases in which s. 25(1) is invoked, in this case the police decisions were not made in the heat of the moment, but with the benefit of reflection, discussion and an assessment of risk. The police decided to deploy the tac team and to execute the search warrant in a manner that required [the plaintiff] to be aggressively secured and restrained. They are answerable for these choices. The police need not demonstrate the correct decision was made, but that the decision was made on reasonable grounds based on the circumstances known at the time." - See paragraph 40.

Torts - Topic 3210

Trespass - Assault and battery - Burden of proof - [See second Police - Topic 5149].

Cases Noticed:

Mann v. Balaban, [1970] S.C.R. 74, refd to. [para. 3].

Bolianatz et al. v. Edmonton Chief of Police Service et al. (2002), 313 A.R. 73; 2002 ABQB 284, refd to. [para. 5].

Priestman v. Colangelo, Shynall and Smythson, [1959] S.C.R. 615, refd to. [para. 5].

R. v. Asante-Mensah (D.) (2001), 150 O.A.C. 325; 204 D.L.R.(4th) 51 (C.A.), affd. [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317, refd to. [para. 5].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 5].

Chartier et al. v. Greaves et al., [2001] O.T.C. 121 (Sup. Ct.), refd to. [para. 6].

Levitz v. Ryan (1972), 9 C.C.C.(2d) 182 (Ont. C.A.), refd to. [para. 16].

R. v. Gogol (1994), 27 C.R.(4th) 357 (Ont. C.J. Prov. Div.), refd to. [para. 16].

Berntt v. Vancouver (City) et al. (1999), 125 B.C.A.C. 71; 204 W.A.C. 71; 1999 BCCA 345, refd to. [para. 20].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316; 75 C.R.(3d) 1, refd to. [para. 20].

R. v. Asante-Mensah (D.), [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317, refd to. [para. 22].

Chrispen v. Kalinowski et al. (1997), 156 Sask.R. 58 (Q.B.), refd to. [para. 26].

Foley v. Shannahan et al. (1990), 82 Nfld. & P.E.I.R. 271; 257 A.P.R. 271 (Nfld. T.D.), refd to. [para. 26].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 33].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343 (C.A.), refd to. [para. 38].

Housen v. Nickolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 41].

Vlad v. Edmonton Chief of Police et al. (2002), 319 A.R. 1; 2002 ABQB 518, refd to. [para. 42].

Levesque v. Zanibbi, 1992 CarswellOnt 2832 (Gen. Div.), refd to. [para. 45].

R. v. Bottrell (1981), 60 C.C.C.(2d) 211 (B.C.C.A.), refd to. [para. 45].

Klyne v. Rae (2002), 218 Sask.R. 141; 2002 SKQB 139, refd to. [para. 45].

Anderson v. Smith et al., [2000] B.C.T.C. 596; 2000 BCSC 1194, refd to. [para. 45].

Breen v. Saunders and Fredericton (City) (1986), 71 N.B.R.(2d) 404; 182 A.P.R. 404 (T.D.), refd to. [para. 45].

Robinow v. Vancouver (City) et al., [2003] B.C.T.C. 661; 37 M.P.L.R.(3d) 265; 2003 BCSC 661, refd to. [para. 45].

Parrett v. Central Saanich (District) Police Department, 2001 BCSC 23, refd to. [para. 45].

Besse v. Thom (1979), 96 D.L.R.(3d) 657 (B.C. Co. Ct.), revd. (1979), 107 D.L.R.(3d) 694 (B.C.C.A.), refd to. [para. 45].

Noel (Committee of) v. Royal Canadian Mounted Police, [1995] 7 W.W.R. 479 (B.C.S.C.), refd to. [para. 50].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 25(1)(b) [para. 4].

Authors and Works Noticed:

Hutchison, Scott C., Morton, James C., and Bury, Michael P., Search and Seizure Law in Canada (1993) (Looseleaf Update), p. 17-8 [para. 16].

Counsel:

M. Killoran, for the appellants/defendants;

K. Devraj and R. Wareham, for the respondent/plaintiff.

This appeal was heard on December 6, 2004, by Fruman and Paperny, JJ.A., and Rowbotham, J.(ad hoc), of the Alberta Court of Appeal. Fruman, J.A., delivered the following reasons for judgement reserved, for the court, on February 24, 2005.