Everett et al. v. McCaskill et al., (2014) 309 Man.R.(2d) 178 (QB)

• Judge: Spivak, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 16, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 309 Man.R.(2d) 178 (QB);2014 MBQB 185

Everett v. McCaskill (2014), 309 Man.R.(2d) 178 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. SE.038

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) v. Keith McCaskill and The City of Winnipeg (defendants)

(CI 10-01-68477; 2014 MBQB 185)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Spivak, J.

September 16, 2014.

Summary:

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

The Manitoba Court of Queen's Bench dismissed the action. The court provided a provisional assessment of damages.

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 - The Manitoba Court of Queen's Bench 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 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 - A warrant was impractical due to the potential volatility and danger - 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 - There were exigent circumstances and no bad faith on the part of the police - See paragraphs 54 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 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 - 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 - The Manitoba Court of Queen's Bench dismissed the action - From the police perspective, this was a situation of rival gang members who had been causing problems - There were reports of fighting with bats and chains and people being injured - The officers honestly and reasonably believed that it was necessary to enter the home in order to properly investigate the matter and ensure that no one was injured - Their actions were consistent with that belief - The police conduct was a justifiable use of police powers to protect and preserve life - No one was detained or arrested - Police made a cursory search to ensure that no one was injured and then left - See paragraphs 57 to 62.

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 - The Manitoba Court of Queen's Bench dismissed the action - The police had a resident's consent to enter the home - They left when they were asked to leave - In any event, the police actions were a justifiable use of their power - They 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 - See paragraphs 78 to 85.

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 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 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 - The Manitoba Court of Queen's Bench 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 - See paragraphs 36 to 53.

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 - [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 - The Manitoba Court of Queen's Bench, 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 - See paragraph 107.

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 - The Manitoba Court of Queen's Bench, 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 - See paragraphs 101 to 104.

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 - The Manitoba Court of Queen's Bench, 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 - See paragraph 106.

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 - The Manitoba Court of Queen's Bench, 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" - See paragraph 105.

Damages - Topic 1297

Exemplary or punitive damages - Conditions precedent (or when awarded) - The plaintiffs' action sought damages as a result of encounters with the Winnipeg police force - The Manitoba Court of Queen's Bench, having dismissed the action, stated that, even if liability had been established, there was no basis for an award of punitive damages - Nothing in the police conduct approached the standard required to warrant punitive damages - See paragraph 108.

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 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 3603 and second Police - Topic 3108 ].

Police - Topic 3065

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

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 - The Manitoba Court of Queen's Bench dismissed the action - There were reasonable and probable grounds to believe that J.J.M. was in "immediate danger" - It was not necessary for the police 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 minimal and not unreasonable or excessive in the circumstances - See paragraphs 91 to 99.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 and second Police - Topic 3108 ].

Police - Topic 3087

Powers - Arrest and detention - Children in danger or in need of protection - [See Police - Topic 3073 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See all Civil Rights - Topic 1556 ].

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 - The Manitoba Court of Queen's Bench 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 - He was cautioned that he could be charged with assault and released - Further, the police were entitled to control the other plaintiffs' physical attempts to intervene in their dealings with Brandon - See paragraphs 63 to 77.

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 28, 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 - The Manitoba Court of Queen's Bench 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 - See paragraphs 86 to 90.

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:

Young v. Ewatski (2012), 280 Man.R.(2d) 239; 548 W.A.C. 239; 2012 MBCA 64, refd to. [para. 29].

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. 29].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 37].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 38].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 38].

R. v. Simpson (R.) (1993), 60 O.A.C. 327 (C.A.), refd to. [para. 39].

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. 40].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 41].

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. 41].

R. v. Kelsy (M.) (2011), 283 O.A.C. 201; 280 C.C.C.(3d) 456; 2011 ONCA 605, refd to. [para. 45].

R. v. Tereck (R.S.) (2008), 228 Man.R.(2d) 260; 427 W.A.C. 260; 2008 MBCA 90, refd to. [para. 55].

R. v. J.M. (2002), 194 Man.R.(2d) 132 (Prov. Ct.), dist. [para. 61].

R. v. Cole (R.) et al., [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 66].

R. v. R.M.J.T. (2014), 303 Man.R.(2d) 292; 600 W.A.C. 292; 2014 MBCA 36, refd to. [para. 66].

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. 68].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161; 43 W.C.B.(2d) 371; 6 M.V.R.(4th) 248 (Sup. Ct.), refd to. [para. 70].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238; 2003 MBCA 1, refd to. [para. 70].

R. v. Grotheim (K.) (2001), 213 Sask.R. 141; 260 W.A.C. 141; 2001 SKCA 116, refd to. [para. 71].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 73].

R. v. Guiboche (G.F.) (2004), 180 Man.R.(2d) 276; 310 W.A.C. 276; 2004 MBCA 16, refd to. [para. 89].

R. v. Couturier (P.) (2004), 277 N.B.R.(2d) 311; 727 A.P.R. 311; 190 C.C.C.(3d) 429; 2004 NBCA 91, refd to. [para. 90].

Green v. Lawrence et al. (1998), 129 Man.R.(2d) 291; 180 W.A.C. 291; 127 C.C.C.(3d) 416; 163 D.L.R.(4th) 115 (C.A.), refd. [para. 99].

Diallo v. Benson et al., [2006] O.T.C. Uned. 27 (Sup. Ct.), refd to. [para. 105].

Collins v. Brantford Police Services Board (2001), 151 O.A.C. 152; 204 D.L.R.(4th) 660 (C.A.), refd to. [para. 105].

Bray v. Ottawa Police Services Board et al., [2007] O.T.C. Uned. 319 (Sup. Ct.), refd to [para. 105].

Jensen v. Stemmer et al. (2007), 214 Man.R.(2d) 64; 395 W.A.C. 64; 2007 MBCA 42, refd to. [para. 108].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 108].

Counsel:

R. Ian Histed, for the plaintiffs;

Denise A.M. Pambrun, for the defendants.

This action was heard by Spivak, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 16, 2014.