Everett et al. v. McCaskill et al., 2015 MBCA 107

• Judge: Monnin, Burnett and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 13, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 107;(2015), 323 Man.R.(2d) 164 (CA)

Everett v. McCaskill (2015), 323 Man.R.(2d) 164 (CA);

      657 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. DE.004

Rosa Everett, Keith Merasty, Rosa Everett, as Litigation Guardian of Precious Everett-Scott, Rosa Everett as Litigation Guardian of Lucas Scott, and Rosa Everett as Litigation Guardian of Brandon Scott (plaintiffs/appellants) v. Keith McCaskill and The City of Winnipeg (defendants/respondents)

(AI 14-30-08278; 2015 MBCA 107)

Indexed As: Everett et al. v. McCaskill et al.

Manitoba Court of Appeal

Monnin, Burnett and Mainella, JJ.A.

November 30, 2015.

Summary:

The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 309 Man.R.(2d) 178, dismissed the action. The court provided a provisional assessment of damages. The plaintiffs appealed.

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - On April 4, 2010, the Tactical Support Team and a number of general patrol units were dispatched to the plaintiffs' home following a report that a woman had been abducted and was being held inside the home - The plaintiffs alleged, inter alia, trespass and invasion of privacy and a breach of s. 8 of the Charter - Spivak, J., dismissed the action - The Manitoba Court of Appeal dismissed the plaintiffs' appeal - Clearly, the police had acted within the general scope of their duties - They were motivated by genuine safety concerns - Exigent circumstances necessitated prompt action, denying the ability to obtain a warrant - The two searches of the residence were justified - The first sweep search for persons or firearms was reasonably necessary to eliminate any imminent threat to public or police safety - The second search was a walk through to look for any weapons lying around - Each took only 15 minutes - The searches were for a limited purpose and were proportionate to the concern - See paragraphs 22 to 43.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - On July 17, 2010, police attended at the plaintiffs' home in response to a series of phone calls from neighbours regarding a group of males arguing and fighting in front of the home - They left but returned within an hour after realizing that one of the males in the home was subject to an outstanding arrest warrant - The officers arrested that person - The plaintiffs asserted that the police entry into the home was an invasion of privacy, trespass and an unreasonable search and seizure, contrary to s. 8 of the Charter - Spivak, J., dismissed the action - Without dealing with the re-entry to arrest the male, Spivak, J., found that the police conduct was a justifiable use of police powers to protect and preserve life - Police made a cursory search to ensure that no one was injured and then left - On appeal, the plaintiffs asserted that the entries on their premises were not a justifiable use of police power and that the re-entry to arrest the male was a trespass as a warrantless entry without consent to effect an arrest - The Manitoba Court of Appeal dismissed the plaintiffs' appeal - There was no palpable or overriding error in Spivak, J.'s conclusions - The arrest was essentially a continuation of the event, which was justified and reasonable - See paragraphs 47 to 56.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - On September 28, 2010, police attended at the plaintiffs' home in response to phone calls from citizens regarding a male outside the home pointing a gun at another male, talk about drive-by shootings and shots being heard - The plaintiffs asserted that the police entry into the home was an invasion of privacy, trespass and an unreasonable search and seizure, contrary to s. 8 of the Charter - Spivak, J., dismissed the action - The police had a resident's consent to enter the home - They left when they were asked to leave - The officers were acting in performance of their duty to protect public safety - The officers' conduct was justifiable based on their common law duty to protect life, their reasonable belief that someone might be hurt or in possession of a firearm and the minimal scope of the interference, which was a short, cursory search of five to 10 minutes - The Manitoba Court of Appeal dismissed the plaintiffs' appeal - The consent to entry was voluntary and informed and was sufficient to allow the police to conduct their search - No trespasses or breaches of the Charter or privacy interests occurred - See paragraphs 70 to 78.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See all Civil Rights - Topic 1556 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See all Civil Rights - Topic 1556 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See first Civil Rights - Topic 1556 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - On April 4, 2010, the Tactical Support Team and a number of general patrol units were dispatched to the plaintiffs' home following a report that a woman had been abducted and was being held inside the home - Two of the plaintiffs were held in a police vehicle while the home was searched - The plaintiffs alleged, inter alia, false imprisonment and breaches of ss. 9 and 10 of the Charter - Spivak, J., dismissed the action - The police had acted within the general scope of their duties to provide whatever assistance was required and to protect life and preserve the peace - They were motivated by genuine safety concerns - The plaintiffs' detention was justified - While the detention was not brief, the plaintiffs were held only until the home was secured - This was reasonably necessary in light of the 911 call - Further, the plaintiff Merasty's detention was justifiable as an investigative detention due to his similarity to the alleged abductor - Any breach of the plaintiffs' right to counsel arising from the detention or to be informed of the reasons for detention was not sufficiently grave to attract constitutional damages - The Manitoba Court of Appeal dismissed the plaintiffs' appeal, finding "no error" in the way that Spivak, J., dealt with these claims - See paragraphs 44 to 46.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - Spivak, J., having dismissed the action, stated that no damages would have been awarded under s. 24(1) of the Charter in any event - Had the court concluded that the plaintiffs' Charter rights were breached, damages for trespass, false imprisonment and/or battery would have adequately addressed that - Charter damages would have been duplicative - Further, none of the police conduct met the minimum threshold of gravity that justified constitutional damages - This was not the type of situation that justified damages against the state - The Manitoba Court of Appeal affirmed the decision - See paragraph 105.

Damage Awards - Topic 550

Torts - Injury to land and buildings - Trespass - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - Spivak, J., having dismissed the action, provisionally assessed damages - Searches of the plaintiffs' home on five occasions involved circumstances where the police entered the home for brief periods and for a limited purpose - On two occasions, they were inside the home for about 10 minutes - On one occasion, they were in front of the home for 35 minutes - As no force was used in gaining entry and there was no damage to property, the court would have awarded only nominal damages of $500 in trespass for each entry - Two searches were more extensive, about 15 minutes each, as the police looked in any place where a person or weapon might have been hidden - Had those searches been unlawful, the court would have awarded damages of $1,000 - The Manitoba Court of Appeal affirmed the decision - See paragraphs 102 and 103.

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - Spivak, J., having dismissed the action, provisionally assessed damages of $100 for each of the plaintiffs' three battery claims - The contact was minor - None of the plaintiffs suffered any injuries - The Manitoba Court of Appeal affirmed the decision - See paragraph 104.

Damage Awards - Topic 630

Torts - Injury to the person - False or unlawful imprisonment - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - Spivak, J., having dismissed the action, provisionally assessed damages of $1,000 for each of the three plaintiffs who asserted that their detentions had been unlawful and that they were falsely imprisoned - The time in custody was relatively brief for two of the plaintiffs, about 40 minutes - The other plaintiff's detention "was also not that extensive" - The Manitoba Court of Appeal affirmed the decision - See paragraph 104.

Police - Topic 2208

Duties - General duties - Duty to warn and protect - [See all Civil Rights - Topic 1556 and Civil Rights - Topic 3603 ].

Police - Topic 2209

Duties - General duties - Duty to take preventive actions and investigate - [See all Civil Rights - Topic 1556 and Civil Rights - Topic 3603 ].

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - [See Police - Topic 3073 and first Police - Topic 3108 ].

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - On September 30, 2010, police entered the plaintiffs' home and apprehended two youths, J.M. and J.J.M., who had previously given statements to the police regarding a murder - The youths had disappeared and were believed to have returned to their gang - The police believed that the youths were in jeopardy because they would be considered to be "rats" - The plaintiffs alleged that the apprehension was unlawful and unconstitutional as it was a warrantless arrest within a dwelling house - They also alleged that the police had committed battery against two of the residents of the house - Spivak, J., dismissed the action - There were reasonable and probable grounds to believe that J.J.M. was in "immediate danger" - It was not necessary to obtain a warrant - The decision to act, based on the belief that the youths were in "extreme jeopardy", was reasonable - Nor was there any battery - The officers were attempting to control an escalating situation - The physical contact was not unreasonable or excessive - The Manitoba Court of Appeal dismissed the plaintiffs' appeal - There was no need for evidence of actual harm, rather than potential harm, to J.J.M. - The plaintiffs' interpretation of s. 21(2) of the Child and Family Services Act was too restrictive - Spivak, J., was correct in finding that the officers were entitled to act on the belief that J.J.M. was in potential danger - There was no error of law or palpable or overriding error in Spivak, J.'s assessment - See paragraphs 87 to 101.

Police - Topic 3108

Powers - Investigation - Power to enter private property - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - On July 28, 2010, police attended at the plaintiffs' home in response to two complaints regarding a threat and an assault that implicated residents of the home - The plaintiffs alleged that the police had unlawfully entered the home, had unlawfully detained one of the plaintiffs (Brandon) and had assaulted two others - Spivak, J., dismissed the action - The police had been invited into the home by one of the plaintiffs - The detention of Brandon occurred as a result of what happened inside the home - The police left after being told by another plaintiff to leave - The officers were lawfully in the home - They had objective reasonable grounds to detain Brandon for investigative purposes as he was identified as being connected to the reported assault - There was no excessive force - Brandon was provided with his Charter rights - The police were entitled to control the other plaintiffs' physical attempts to intervene in their dealings with Brandon - The Manitoba Court of Appeal dismissed the plaintiffs' appeal, agreeing that there was voluntary, informed consent to the entry of the police and that what happened inside was a justified police response - See paragraphs 57 to 69.

Police - Topic 3108

Powers - Investigation - Power to enter private property - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - On September 29, 2010, a detective entered the home to look for a suspect in two homicides - The plaintiffs' claims regarding trespass, invasion of privacy and unreasonable search and seizure depended on whether or not the detective had consent to enter the home - Spivak, J., dismissed the action - There was consent to the entry and, therefore, a legal basis for the police presence in the house - The person who gave consent had a privacy interest in the home - The detective was not obligated to advise that person that he had a right to deny entry in order for the consent to be valid - This was not an unlawful entry - The Manitoba Court of Appeal dismissed the plaintiffs' appeal - There was no error of law in Spivak, J.'s determination that the consent to entry was informed and was sufficient for the purpose of conducting the search that was undertaken - See paragraphs 79 to 86.

Police - Topic 3186

Powers - Search - Private property - [See all Civil Rights - Topic 1556 ].

Police - Topic 5070

Actions against police - For false imprisonment - Defence of justification - [See Civil Rights - Topic 3603 ].

Police - Topic 5143

Actions against police - For assault and battery - What constitutes - [See Police - Topic 3073 ].

Police - Topic 5181

Actions against police - For search and seizure of property - Unreasonable search and seizure - [See all Civil Rights - Topic 1556 ].

Torts - Topic 3252

Trespass - False imprisonment - What constitutes false imprisonment - [See Civil Rights - Topic 3603 ].

Torts - Topic 3253

Trespass - False imprisonment - Defences - Justification - [See Civil Rights - Topic 3603 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 5].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 8].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 9].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 9].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 9].

R. v. Simpson (R.) (1993), 60 O.A.C. 327 (C.A.), refd to. [para. 10].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 11].

R. v. Kelsy (M.) (2011), 283 O.A.C. 201; 280 C.C.C.(3d) 456; 2011 ONCA 605, refd to. [para. 12].

R. v. MacDonald (E.), [2014] 1 S.C.R. 37; 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 13].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 14].

Tymkin v. Ewatski et al. (2014), 299 Man.R.(2d) 294; 590 W.A.C. 294; 2014 MBCA 4, refd to. [para. 15].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 19].

R. v. Tereck (R.S.) (2008), 228 Man.R.(2d) 260; 427 W.A.C. 260; 2008 MBCA 90, refd to. [para. 34].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 56].

R. v. Guiboche (G.F.) (2004), 180 Man.R.(2d) 276; 310 W.A.C. 276; 2004 MBCA 16, refd to. [para. 76].

R. v. M.C.G. (2001), 160 Man.R.(2d) 131; 262 W.A.C. 131; 2001 MBCA 178, refd to. [para. 84].

Counsel:

R.I. Histed, for the appellants;

D.A.M. Pambrun, for the respondents.

This appeal was heard on April 13, 2015, by Monnin, Burnett and Mainella, JJ.A., of the Manitoba Court of Appeal. On November 30, 2015, Monnin, J.A., delivered the following judgment for the court.