Tymkin v. Ewatski et al., 2014 MBCA 4

• Judge: Steel, Chartier and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 09, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBCA 4;(2014), 299 Man.R.(2d) 294 (CA)

Tymkin v. Ewatski (2014), 299 Man.R.(2d) 294 (CA);

      590 W.A.C. 294

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.037

Randy Tymkin (plaintiff/appellant) v. Chief Jack Ewatski, Cst. F. McIntosh and Cst. M. Carvalho (defendants/respondents) and The Government of Manitoba (third party)

(AI 12-30-07727; 2014 MBCA 4)

Indexed As: Tymkin v. Ewatski et al.

Manitoba Court of Appeal

Steel, Chartier and Monnin, JJ.A.

January 9, 2014.

Summary:

The plaintiff was arrested without warrant at 1:51 a.m. inside his residence following a domestic violence complaint by his former wife. The plaintiff was held at the police station until 3:38 a.m., when he was released on a promise to appear. Charges against the plaintiff were later stayed by the Crown. The plaintiff sued the police for malicious prosecution, false imprisonment and battery. The police applied under rule 20.03(1) for summary judgment to dismiss the claims for want of a genuine issue to be tried.

The Manitoba Court of Queen's Bench, in a judgment reported at (2003), 179 Man.R.(2d) 263, granted summary judgment dismissing the malicious prosecution claim, but ordered that the false imprisonment and battery claim proceed to trial on the ground that there was a genuine issue for trial. The plaintiff appealed.

The Manitoba Court of Appeal, in a judgment reported at (2004), 190 Man.R.(2d) 307; 335 W.A.C. 307, dismissed the appeal. The plaintiff brought a motion for an order permitting the civil jury to hear both his damages claim for false imprisonment and for battery.

The Manitoba Court of Queen's Bench, in a judgment reported at (2007), 215 Man.R.(2d) 251, allowed the plaintiff's motion and allowed the police motion in part, striking portions of the statement of claim. The punitive damages claim was struck on the ground that malice was a prerequisite to the claim. The claim for a declaration that the domestic violence policy of the Winnipeg Police Service was unlawful was also struck. The plaintiff appealed.

The Manitoba Court of Appeal, in a judgment reported at (2009), 240 Man.R.(2d) 164; 456 W.A.C. 164, allowed the appeal in part. The trial judge was correct to strike the unlawful domestic violence policy claim, but erred in striking the claim for punitive damages, as malice was not a prerequisite to a punitive damages claim. The plaintiff requested that the judge recuse himself from hearing several pre-trial motions and from serving as trial judge in the action.

The Manitoba Court of Queen's Bench, in a judgment reported at (2007), 217 Man.R.(2d) 229, dismissed the motion. The police moved to strike out, stay or amend portions of the plaintiff's amended statement of claim. The matter proceeded to trial before judge and civil jury. Based on questions put to the jury, the jury found that: (1) the police had reasonable grounds to believe that the plaintiff had assaulted his wife; (2) the police believed that by arresting the plaintiff they were preventing the continuation or repetition of the offence or the commission of another offence; (3) the police had reasonable grounds to believe that if the accused was not arrested there could be a further offence; (4) the person answering the door at the plaintiff's residence (an overnight guest) did not tell the police that he was a tenant; (5) the guest gave police permission to enter; (6) the police believed that they were given permission to enter; (7) the police believed the guest was a person who could give consent to enter; (8) the police remained in the space near the door; (9) the police advised the plaintiff of the offence; (10) the plaintiff was advised of his Charter rights; (11) the police did not handcuff the plaintiff too tightly; and (12) the police did not use excessive force. Based on those fact findings, the trial judge held that the police were not trespassers, because they had consent to enter. Alternatively, if there was a "technical" trespass, the trial judge found that it resulted from a mistake of fact as to consent to enter and the police would be protected from civil liability under s. 25(1) of the Criminal Code. The arrest was lawful and the false imprisonment and battery claims were dismissed. The plaintiff appealed, arguing that the trial judge's conduct at trial exhibited bias sufficient to result in an unfair trial, the trial judge erred in finding that the warrantless arrest was lawful because of the consent to enter given by the guest who answered the door, and the trial judge erred in finding protection from civil liability under s. 25(1).

The Manitoba Court of Appeal, Monnin, J.A., dissenting in part, dismissed the appeal.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - The plaintiff sued the defendants for damages for false imprisonment and battery - The action was dismissed - The plaintiff appealed, citing four examples of conduct that showed bias by the trial judge: (1) the trial judge, in refusing to permit counsel to cross-examine the plaintiff's physician, made what the plaintiff considered a crude and offensive comment which would diminish counsel in the jury's eyes; (2) the trial judge, in interfering with counsel's cross-examination of a police witness, was sarcastic, argumentative and assisted the defence; (3) the trial judge, in interfering with the cross-examination of another police witness, was argumentative and assisted the defence; and (4) the trial judge interrupted counsel's address to the jury - The Manitoba Court of Appeal held that the trial judge's discourteous conduct did not raise a reasonable apprehension of bias - The trial judge's comment that counsel could not "suck and blow at the same time" was not crude and offensive - It was a colloquial way of saying counsel could not have it both ways - The trial judge's intervention in cross-examination of the police witnesses was legitimate to protect the witnesses from unfair questioning based on counsel's mis-characterization of the domestic assault policy he was cross-examining them on - The judge's conduct was neither incorrect nor indicative of bias - As to the interruption of counsel's address, the trial judge was correct to intervene in counsel's attempt to make submissions to the jury on the law applicable to false imprisonment - Submissions on facts were for the jury, but submissions on the law were to be made to the trial judge - Upon reviewing the entire trial transcript, there was no real likelihood or probability of bias based on exchanges between the trial judge and counsel - See paragraphs 27 to 59.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Manitoba Court of Appeal stated that "the case law establishes that the test for reasonable apprehension of bias with respect to a judge's conduct of a trial is whether an informed person would conclude, reviewing the matter realistically and practically and having thought the matter through, that the trial judge would not decide fairly. Thus, the fundamental concern with respect to an apprehension of bias is the appearance of a fair trial. In light of the strong presumption of judicial impartiality, the test will not involve a sensitive or scrupulous conscience. Rather, the threshold is quite high and requires that there must be a real likelihood or probability of bias. The case law also establishes that it will not be enough to show that a trial judge intervened in the case, was rude or discourteous, or debated with counsel over the relevance of legal or factual issues. Rather, the impugned behaviour must demonstrate a partiality or predisposition to decide an issue in a certain way, or indicate that the judge had made up his mind prematurely. Each case must be decided on its own facts, and the impugned behaviour must be considered in the context of the entire case by considering the quality and quantity of the interventions or comments and their effect on a party's presentation of their case. In the context of a jury trial, particularly a criminal one, the dynamics of such a trial must also be considered. The effect on the jury of the judge's conduct must be part of the equation." - See paragraphs 43 to 44.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - The complainant told police that her former husband (plaintiff) had assaulted her two months earlier - She only complained that day because the plaintiff had visited her house, thrown something at it, took their dogs, and was dismissive of a non-molestation order - The police went to the plaintiff's residence after midnight - An overnight guest, who the police believed to be a tenant, answered the door and invited the police inside while he went to get the plaintiff - The police waited by the door until the plaintiff came - The accused was arrested at 1:51 a.m. and was held at the police station until 3:38 a.m., when he was released on a promise to appear - Charges against the plaintiff were later stayed by the Crown - The plaintiff sued for false imprisonment - The trial was by judge and jury - The jury found that the officers had subjectively reasonable and probable grounds to arrest the accused without warrant - The trial judge found that the officer's subjective belief was objectively reasonable - Accordingly, the arrest was lawful and the accused was not falsely imprisoned - The trial judge found that the warrantless arrest in the plaintiff's dwelling was not unlawful because the overnight guest lacked the privacy interest required to give informed consent - In any event, had the officers entered without consent, they were protected from civil liability by s. 25(1)(b) of the Criminal Code because their entry without consent was a mistake of fact - The Manitoba Court of Appeal dismissed the plaintiff's appeal - Assuming that the guest could not give informed consent to enter, resulting in the police technically being trespassers, the officers were still afforded the protection of s. 25(1)(b) - If the officers believed that they could enter the residence without consent, that would be a mistake of law not protected by s. 25(1)(b) - However, where the officers knew they needed consent to enter, and reasonably believed that consent had been given by a person having authority to give consent, that was a reasonable mistake of fact protecting the officers from civil liability under s. 25(1)(b) - See paragraphs 63 to 133.

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - [See Police - Topic 3063 ].

Police - Topic 5073

Actions against police - For false imprisonment - Defence of reasonable and probable grounds - The plaintiff sued the defendant police officers for damages for false imprisonment, arguing that the defendants lacked subjectively and objectively reasonable and probable grounds to arrest him, making the arrest unlawful - The trial was by judge and jury - The Manitoba Court of Appeal held that whether the officers had subjectively reasonable and probable grounds to arrest the accused was a finding of fact for the jury - However, "it is solely within the judge's jurisdiction to determine whether, objectively, reasonable grounds to arrest exist in a case of false imprisonment" - See paragraph 61.

Police - Topic 5073

Actions against police - For false imprisonment - Defence of reasonable and probable grounds - [See Police - Topic 3063 ].

Cases Noticed:

Jensen v. Stemmer (2007), 214 Man.R.(2d) 64; 395 W.A.C. 64; 2007 MBCA 42, refd to. [para. 21].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 25].

Chippewas of Mnjikaning First Nation v. Ontario et al. (2010), 265 O.A.C. 247; 2010 ONCA 47, leave to appeal denied [2010] S.C.C.A. No. 91, refd to. [para. 25].

Gentles et al. v. Toronto Community Housing Corp. et al. (2010), 270 O.A.C. 305; 2010 ONCA 797, refd to. [para. 26].

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. 26].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 32].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 34].

Ritchot v. Law Society of Manitoba (2010), 251 Man.R.(2d) 121; 478 W.A.C. 121; 2010 MBCA 13, refd to. [para. 35].

R. v. Thomas (R.T.) (2010), 258 Man.R.(2d) 146; 499 W.A.C. 146; 2010 MBCA 91, refd to. [para. 35].

Metis Child, Family and Community Services v. A.J.M. et al. (2008), 225 Man.R.(2d) 261; 419 W.A.C. 261; 2008 MBCA 30, leave to appeal denied (2008), 390 N.R. 382 (S.C.C.), refd to. [para. 35].

Kelly v. Palazzo et al. (2008), 233 O.A.C. 160; 89 O.R.(3d) 111 (C.A.), refd to. [para. 37].

Middelkamp v. Fraser Valley Real Estate Board (1993), 83 B.C.L.R.(2d) 257 (C.A.), refd to. [para. 39].

R. v. Hamilton (A.) et al. (2011), 279 O.A.C. 199; 2011 ONCA 399, refd to. [para. 41].

R. v. Rafters (1991), 6 B.C.A.C. 72; 13 W.A.C. 72 (C.A.), refd to. [para. 44].

R. v. Sicotte, [1991] J.Q. No. 806 (C.A.), refd to. [para. 44].

Burke Estate et al. v. Royal & Sun Alliance Insurance Co. of Canada (2011), 381 N.B.R.(2d) 81; 984 A.P.R. 81; 2011 NBCA 98, refd to. [para. 47].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 48].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 60].

Kennedy v. Tomlinson (1959), 20 D.L.R.(2d) 273 (Ont. C.A.), refd to. [para. 60].

Alexander v. Halley et al. (2009), 244 Man.R.(2d) 101; 2009 MBQB 228, refd to. [para. 61].

Barnett v. Ewatski et al., [2012] Man.R.(2d) Uned. 57; 2012 MBCA 113, refd to. [para. 62].

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. 67].

R. v. Landry, [1986] 1 S.C.R. 145; 65 N.R. 161; 14 O.A.C. 241, refd to. [para. 68].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 68].

R. v. Van Wyk (H.W.) (1999), 104 O.T.C. 161 (Sup. Ct.), leave to appeal denied [2002] O.J. No. 3144 (C.A.), refd to. [para. 73].

R. v. Grotheim (K.) (2001), 213 Sask.R. 141; 260 W.A.C. 141; 2001 SKCA 116, leave to appeal denied (2002), 300 N.R. 195 (S.C.C.), refd to. [para. 73].

R. v. Couturier (P.) (2004), 277 N.B.R.(2d) 311; 727 A.P.R. 311; 2004 NBCA 91, refd to. [para. 73].

R. v. LeClaire (K.A.) (2005), 208 C.C.C.(3d) 559; 2005 NSCA 165, leave to appeal denied (2006), 356 N.R. 394 (S.C.C.), refd to. [para. 73].

R. v. Desrochers (D.), [2007] O.T.C. 580; 47 M.V.R.(5th) 315, leave to appeal denied, [2008] O.A.C. Uned. 168; 58 M.V.R.(5th) 16; 2008 ONCA 255, refd to. [para. 73].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238; 2003 MBCA 1, refd to. [para. 74].

R. v. M.C.G. (2001), 160 Man.R.(2d) 131; 262 W.A.C. 131; 2001 MBCA 178, leave to appeal denied (2002), 300 N.R. 198 (S.C.C.), refd to. [para. 79].

R. v. Wills (1992), 52 O.A.C. 321; 7 O.R.(3d) 337 (C.A.), refd to. [para. 81].

R. v. Guiboche (G.F.) (2004), 180 Man.R.(2d) 276; 310 W.A.C. 276; 2004 MBCA 16, refd to. [para. 83].

Young v. Ewatski (2012), 280 Man.R.(2d) 239; 548 W.A.C. 239; 2012 MBCA 64, refd to. [para. 89].

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. 93].

R. v. Blinch (R.J.) (1993), 31 B.C.A.C. 131; 50 W.A.C. 131 (C.A.), refd to. [para. 93].

R. v. Trykalo, [1999] S.J. No. 321 (Prov. Ct.), refd to. [para. 93].

R. v. Collier (B.) et al. (2001), 196 N.S.R.(2d) 209; 613 A.P.R. 209; 2001 NSPC 15 (Prov. Ct.), refd to. [para. 93].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 113].

Simao v. Hankook Ilbo et al. (2012), 289 O.A.C. 109; 2012 ONCA 175, refd to. [para. 113].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 114].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 114].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 115].

Hudson v. Brantford Police Services Board (2001), 150 O.A.C. 87 (C.A.), dist. [para. 122].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 25(1) [para. 97].

Counsel:

R.I. Histed, for the appellant;

M.A. Jack, for the respondent.

This appeal was heard on October 15, 2012, before Steel, Chartier and Monnin, JJ.A., of the Manitoba Court of Appeal.

On January 9, 2014, the judgment of the Court was delivered and the following opinions were filed:

Monnin, J.A., dissenting in part - see paragraphs 1 to 110;

Chartier, J.A. (Steel, J.A., concurring) - see paragraphs 111 to 135.