J.N. et al. v. Horton et al., (2010) 507 A.R. 1 (QB)

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 29, 2010
• Citations: (2010), 507 A.R. 1 (QB);2010 ABQB 767

J.N. v. Horton (2010), 507 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. DE.111

J.N. and Her Majesty the Queen in Right of Alberta (plaintiffs) v. James Horton, John Doe 1 to 3 and Jack Beaton (defendants)

(0601 10321; 2010 ABQB 767)

Indexed As: J.N. et al. v. Horton et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

December 13, 2010.

Summary:

The plaintiff, J.N., sought damages against Horton, a Calgary police officer, as well as against the Chief of Police, for an assault on J.N. by Horton. Horton had delivered a knee strike to J.N.'s groin which ruptured his testicle and resulted in him suffering chronic pain. Her Majesty the Queen in Right of Alberta also sought damages against the defendants for the medical expenses incurred in treating J.N.

The Alberta Court of Queen's Bench found Horton and the Chief of Police jointly and severally liable for the assault committed on J.N. The Crown was granted judgment in the amount of $9,394.01 for the medical treatment required by J.N. J.N. was awarded $120,000 in general damages, $7,240.19 for the expenses incurred to purchase medications, $14,016 for past loss of income, $35,000 for loss of future earning capacity and $35,000 for the cost of future care. He was also awarded punitive damages of $5,000 against Horton personally.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome) - [See Damage Awards - Topic 64 ].

Damage Awards - Topic 64

Injury and death - Body injuries - Genitals or reproductive system - J.N. sought damages against Horton, a Calgary police officer, as well as against the Chief of Police, for an assault by Horton on J.N. in 2004 when J.N. was 22 - Horton had delivered a strike to J.N.'s groin which ruptured his right testicle - The Alberta Court of Queen's Bench found Horton and the Chief of Police jointly and severally liable for the assault on J.N. - J.N. was awarded, inter alia, $120,000 in general damages - As a result of the injury, he suffered a protracted and painful recovery, an invasive surgical procedure, and chronic pain so significant he continued, more than six years later, to require strong narcotic analgesics on a daily basis - His ability to have a normal sexual relationship had been compromised - The court also awarded $35,000 for loss of future earning capacity - J.N.'s injury limited the types of employment he could undertake - As well, he was using significant doses of a narcotic medication that caused drowsiness and he was precluded from many jobs - The court also awarded J.N. punitive damages of $5,000 against Horton personally - The court found the officer's behaviour reprehensible - The court stated that "The use of a strike to the groin where no use of physical force at all was called for, in the context of an unlawful investigative detention, is behaviour that calls out for punishment, denunciation and deterrence" - The situation was further aggravated by Horton's behaviour after the strike - Horton knew J.N. was in serious pain, yet he did not offer J.N. medical attention or transportation to a safer location, leaving him without help in a dangerous area - See paragraphs 70 to 87.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - [See Damage Awards - Topic 64 ].

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - [See Damage Awards - Topic 64 ].

Damage Awards - Topic 2011

Exemplary or punitive damages - Assault and battery - [See Damage Awards - Topic 64 ].

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - Constables Horton and Massicotte were called to investigate a possible break and enter - The suspected offender (Perkins) had a history of violence against the police - Before they arrived, another police unit resolved the situation - The individual suspected of the break and enter was simply at the wrong house, and was not Perkins - When Horton and Massicotte arrived, J.N. was walking near the residence - A man on a bicycle approached him - Horton and Massicotte noticed the two men and decided to approach them - Massicotte dealt with the man on the bicycle - Horton talked to J.N. - J.N. acknowledged that at some point in the discussion he said "fuck off pig" or "fuck you" to Horton - He said that Horton then used his knee to strike J.N. in the groin (which ruptured J.N.'s testicle) - J.N. sought damages for the assault on him by Horton - The Alberta Court of Queen's Bench found Horton and the Chief of Police jointly and severally liable for the assault on J.N. - The defendants could not rely on the protection in s. 25(1) of the Criminal Code - First, the court found that an unlawful investigative detention took place - J.N. had wanted to leave, but felt he could not - Objectively, it was reasonable for him to conclude that he had no choice but to comply - Horton did not have reasonable grounds for the investigative detention of J.N. - Horton knew J.N. was not Perkins and that the break and enter had been resolved - J.N. had also told Horton his name - Objectively, there was no nexus to an offence - The defendants therefore failed to satisfy the first test under the s. 25(1) defence because Horton was not performing an action required or authorized in the administration of the law - The defendants failed to satisfy the second branch of the test under s. 25(1) as Horton did not have reasonable grounds to strike J.N. in self-defence - It was not reasonable to infer a physical threat from the belligerent language used by J.N. - Under the third branch of s. 25(1), the court found that Horton used excessive force - See paragraphs 47 to 69.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Police - Topic 3065 ].

Police - Topic 5143

Actions against police - For assault and battery - What constitutes - [See Police - Topic 3065 ].

Police - Topic 5145

Actions against police - For assault and battery - Excessive force - [See Police - Topic 3065 ].

Police - Topic 5149

Actions against police - For assault and battery - Defences - Justification of force - [See Police - Topic 3065 ].

Police - Topic 5283

Actions against police - Defences - Statutory immunity - [See Police - Topic 3065 ].

Cases Noticed:

Crampton v. Walton et al. (2005), 363 A.R. 216; 343 W.A.C. 216; 2005 ABCA 81, refd to. [para. 47].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 49].

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. 50].

R. v. Greaves (E.A.) (2004), 203 B.C.A.C. 31; 332 W.A.C. 31; 189 C.C.C.(3d) 305; 2004 BCCA 484, refd to. [para. 52].

R. v. O'Donnell; R. v. Cluett - see R. v. Cluett.

R. v. Cluett (1982), 55 N.S.R.(2d) 6; 114 A.P.R. 6 (C.A.), revd. in part [1985] 2 S.C.R. 216; 61 N.R. 388; 70 N.S.R.(2d) 104; 166 A.P.R. 144, refd to. [para. 53].

R. v. Dedman (1980), 32 O.R.(2d) 641 (C.A.), affd. [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 53].

Bolianatz et al. v. Edmonton Chief of Police Service et al. (2002), 313 A.R. 73; 2002 ABQB 284, refd to. [para. 56].

Levesque v. Zanibbi, 1992 CarswellOnt 2832 (Gen. Div.), refd to. [para. 58].

R. v. Luipasco (W.) et al. (2007), 430 A.R. 53; 2007 ABPC 250, refd to. [para. 59].

Webster v. Wasylyshen - see Webster v. Edmonton Chief of Police et al.

Webster v. Edmonton Chief of Police et al. (2007), 401 A.R. 266; 391 A.R. 266; 2007 ABCA 23, refd to. [para. 68].

Meehan et al. v. Holt (2010), 485 A.R. 1; 2010 ABQB 287, refd to. [para. 73].

Houkayem v. Michaud, 1989 CarswellOnt 1622 (H.C.), refd to. [para. 77].

Wittmeier v. Scholes (1999), 239 A.R. 42; 1999 ABQB 4, refd to. [para. 79].

Stone v. Ellerman et al., [2007] B.C.T.C. Uned. D71; 2007 BCSC 969, revd. [2009] 9 W.W.R. 385; 273 B.C.A.C. 126; 461 W.A.C. 126; 2009 BCCA 294, refd to. [para. 80].

Prosser v. 20 Vic Management et al., 2009 ABQB 177, affd. (2010), 474 A.R. 288; 479 W.A.C. 288; 2010 ABCA 57, refd to. [para. 81].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 84].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 85].

Breland v. Abbott et al. (2005), 390 A.R. 51; 2005 ABQB 903, refd to. [para. 86].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 25(1) [para. 43]; sect. 37 [para. 44].

Counsel:

Tara Cassidy and Clinton Ford, for the plaintiffs;

David Steele, for the defendants.

This action was heard on October 29, 2010, by Sullivan, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on December 13, 2010.