Friday, October 9, 2009

A "Fun with QuickLaw" Thanksgiving

In 1578, English privateer and explorer Martin Frobisher held a formal ceremony in what would one day become the province of Newfoundland and Labrador. He and his crewmen gave thanks for their safe return from their journey north in search of the Northwest Passage. The search yielded nothing but 200 tons of Fool's Gold, which made the voyagers look quite the jackanapes upon their return to England; but at least they didn't have to eat one another, which is more than can be said for the Franklin Expedition.

431 years later, climate change has made Frobisher's dream of a Northwest Passage a reality, and we mark his success by observing Canadian Thanksgiving on the second Monday in October.

A LexisNexis® Quicklaw™ search of (Thanksgiving) yielded a series of family law rulings dividing custody between parents on different holidays. Family break-up is hilarious and all, but The Other Half has mined this territory before. Searching for (Thanksgiving turkey) produced more promising results. Specifically,

Schell v. Truba [1989] S.J. No. 538.

The head note piques one's interest right off the bat:
Civil rights -- Torts -- Trespass -- False imprisonment -- Plaintiff being arrested by police officers -- Plaintiff suffering injuries -- Officers not informing him of his rights and not acting in good faith -- Plaintiff being granted $2,000 general damages plus special damages for false imprisonment, assault, arrest and subsequent personal injuries -- Canadian Charter of Rights and Freedoms, s. 10 -- Criminal Code, R.S.C. 1985, c. C-46, ss. 25(1), 29(2), 101(1) -- Police Act, S.S. 1985, c. P-15, s. 19.
A civil action against a police officer! False imprisonment, with
injuries! General and special damages! Truly, we have much to be thankful for this holiday season.

We begin our odyssey in Prince Albert, Saskatchewan, October 10th, 1986. Two armed robberies take place: one at Sylken Confectionery, the other at a Mr. Submarine franchise.

Already we have to stop. Clearly we are dealing with desperate people:
(a) nobody goes to Mr. Sub unless driven there by circumstance, and
(b) as everyone knows, Subway keeps more cash on the premises [Did Quizno's exist yet?].

Though the robbery is over in under a minute, the owner of Sylken Confectionery, "former alderman and well-known business man" Kenneth Dale McLeod, gets a look at his aggressor. The armed robber is described as 5'10" to 6" in height, with a mustache and long brown hair -- or, 1986. He has a nylon over his head. [At left: a composite of the suspect.]

Two days later, on Thanksgiving Day, Former Alderman McLeod watches a black Trans Am with Alberta plates cruise past Sylken Confectionery. The driver stares him down as he passes. When he reaches a nearby stop sign, he and his passenger get out of the vehicle and look back at Former Alderman McLeod again, as if to communicate to him, We robbed you of your delicious treats just days ago and now we've returned to besmirch the reputation of your underage daughter, or something of like effect.

Later, Former Alderman McLeod sees the same Trans Am in his store parking lot. Remember, it's 1986: a Trans Am owner is like the Pied Piper of underage female confectionery store employees. Fearing the worst, Former Alderman McLeod enters the store and regards its sole customer from the rear. He too is about 5'8" and resembles 1986. The customer turns around, and, appearing concerned [we can only assume he stroked his mustache while his eyes darted about], picks up his purchase and leaves.

The Alderman and his son pursue the Trans Am. We can speculate that they are driving an ice cream van which plays a merry tune. The ice cream van loses the Trans Am in the labyrinthine causeways of metropolitan Prince Albert. But good fortune! A black Trans Am with Alberta plates is spotted by police, parked at a residence nearby.

Naturally, the police establish a perimeter around the house with shotguns and bulletproof vests, and set about obtaining a search warrant. Among the police are officers Truba and Hunter, the defendants.

The police believe that the occupants of the house, known to them as Barry Remple and Bruce Padley, are responsible for the two recent robberies. (Spoiler: They are not.)

At this point His or Her Honour Sirois J. sets the scene:
Diagonally across the back alley from [the house occupied by Remple and Padley] a more festive atmosphere prevailed. At that home resided Florence Tolofson, her son, Tracy and one Ralph Sand. The day previously, on the 11th, her daughter Karen, her husband Bruce Allan Schell (the plaintiff), and their children came from Melfort to celebrate Thanksgiving with Florence. They slept at her place on Saturday night and an early Thanksgiving turkey [aha!] meal around 1:00 p.m. was planned for Sunday. As fate would have it, Florence Tolofson's stove was not functioning, so around 8 o'clock on Sunday morning she took the bird over to her daughter Marilyn's place ... to use her oven. At that house, the children were still in bed; Barry Remple and Bruce Padley (one of them a boyfriend of Marilyn -- both men strangers to Florence) were up and around. Marilyn and another sister Roxanne were due to return from Melfort for dinner.
The reader can easily imagine this sequence of events reenacted in grainy black-and-white on a true crime show. Ominous low notes would play.

So we've established the Thanksgiving connection -- but when do we get to the good stuff?

The plaintiff realizing that he had left his purse [his purse, Your Honour? is the plaintiff] in the cubby hole of his own business truck also parked in front of Florence's house, went to retrieve it. A marked police vehicle driven by the defendant Hunter pulled up behind the truck. There are different versions of the conversation that took place between the two. Hunter says that he began talking by saying, "Good day" and asking the plaintiff who he was. The plaintiff answered Bruce Schell. Then Hunter told the plaintiff why he was there and that he was interested in the house he had just come from. The plaintiff, he said, seemed somewhat annoyed about the intrusion, and told him that he knew nothing about an armed robbery and that he had nothing more to say to him ...
Bru-u-u-uce! Why be belligerent to the police when you haven't done anything! Is it because you wanted your name to be preserved for the ages in the Saskatchewan Reports?
Hunter asked him if he would like to come with him to the police cruiser, to which the plaintiff asked if he was under arrest. When Hunter assured him that he was not, the plaintiff then said that he had nothing more to say to him and he entered the house. Thus ended their conversation.
Okay Bruce, you're not a complete wad. You have a surprisingly firm grasp of the Charter of Rights and Freedoms -- specifically, your right to be free from arbitrary detention -- for somebody in 1986. You're either a lawyer or a skid with some prior experience with detention by the authorities. I'm leaning toward the latter, but it's not because you're from Saskatchewan. It's because of what's about to transpire.

The police broaden their surveillance net to ensnare the "festive" neighbouring house. Florence Tolofson, seized by the spirit of the the holiday, decides to invite relative strangers Barry Remple and Bruce Padley to her table, just as centuries ago the Jesuits might have invited the Wyandot1 to share in a bounty of fellowship and infectious European diseases. That analogy doesn't go too far, however, for in this case it's not the visitors who come to regret their gesture of friendship, but the hosts.

Per Florence's instructions, Bruce Schell and two other Tolofsons visit the Remple/Padley estate to invite their neighbours for dinner. The offer is accepted and the party heads for chez Tolofson. It is at this point that the police decide to execute their warrant.

Traversing the alley between the houses, Barry Remple, Bruce Padley and Bruce Schell are stopped by an unmarked patrol car driven by defendant Sergeant Truba. Truba gets out of the car and bids them halt. Bruce Schell informs Sgt. Truba that as he has "already spoken to a police officer" he will forbear from repeating the experience.

Sgt. Truba steps in front of Bruce and places a hand in the middle of his chest, apparently with the intention of frisking him. Words are exchanged. At least one F-bomb is lobbed at Sergeant Truba, who is shaken but unharmed. The barrage escalates to a shoving match.

As is often the case, the judge's ultimate ruling may be extrapolated from the language in his/her recitation of the facts:
At that moment, [co-defendant] Hunter who had come up from behind, jumped the plaintiff, pushed him to the ground with his face in the gravel with an arm lock around his neck. He pinned the plaintiff's other arm around his back. [Hunter] eventually got the handcuffs on [the plaintiff] with Truba's help and placed him in the patrol car. While on the ground, the plaintiff's face was red, he could not breathe and nearly passed out. The goings-on in the back alley attracted the attention of neighbours. The plaintiff's wife asked Sergeant Truba what was going on and he replied he did not have to tell her anything. The plaintiff, while on the ground beneath Hunter had the humiliation of seeing his wife and children staring at him in disbelief. He could not believe that this was happening to him.
Sergeant Truba is to be commended: nothing defuses a potentially explosive situation and alleviates a bystander's concerns like "I don't have to tell you anything". If he had worked in an "I am the law" and taken out his firearm might have been eligible for the Alonzo Harris Award for Community Fellowship.

Schell was taken to the police station, where he remained for five-and-a-half hours.
[Schell] willingly participated in a lineup. The photograph of the lineup ... is quite revealing. The plaintiff is number 2, while the two suspects, Remple and Padley are numbers 10 and 3. The plaintiff is clearly larger than either of the other two. The Tolofson brothers who accompanied the plaintiff in the back alley prior to the fracas are even larger than he is -- Ken weighs 255 pounds and measures 6 feet 3 inches; Tracy is 6 feet to 6 feet 1 inch and weights 210 pounds. They are huge. How either defendant could mistake them for the accused is difficult to fathom particularly in view of the fact that prior to setting out on the raid the police were given artist's composite drawings of the suspects ... . [T]hey were told that one of the suspects was a white male between 5 feet 8 inches to 6 feet in height, fairly thin build with blond collar-length hair and a mustache. That description hardly fits the plaintiff. Sergeant Truba said he was searching for a Luger. The bulge he saw in the plaintiff's jacket were consistent with his two hands in his pockets and nothing else -- certainly not with a 5" by 7" Luger. The plaintiff had no weapon on him and this was easily ascertained by Sergeant Truba when he frisked him.
The defence contends that the officers acted in good faith, and had reasonable and probable grounds for acting the way they did. According to s. 19 of the Police Act,
[No officer within the purview of the Act] shall be personally liable for any loss or damage suffered by any person by reason of anything in good faith done ... pursuant to or in the exercise or supposed exercise of the powers conferred by this Act or the regulations.
The plaintiff, however, relies on s. 29(2) of the Criminal Code, which says that anyone effecting an arrest has a duty "to give notice, where feasible, of
(a) the process or warrant under which he makes the arrest; or
(b) the reason for the arrest."
Moreover, s. 10(b) of the Charter provides that "Everyone has the right on arrest or detention to be informed promptly of the reasons therefor".

One instance when it might have been feasible to provide such notice might have been when Mr. Schell's face was in the gravel and he and his wife were asking why he was being arrested. But hey, hindsight, right?

Sirois J. is of the same mind. Without going into too much more detail, the trier of fact finds the following particularly egregious:
  • spontaneous frisking of the plaintiff by Sgt. Truba;
  • Officer Hunter grounding and arresting Mr. Schell after having already cleared the man of any wrongdoing; and
  • the officers' failure to apprise themselves of relevant facts (and their blindness to the facts they had already ascertained) before jumping to a conclusion "which was entirely wrong and totally baseless".
In all, the officers' handiwork amounts to violations of sections 7, 8, 9 and 10 of the Charter -- the Charter Grand Slam!

So egregious was the officers' behaviour that the plaintiff was entitled to general damages in the amount of $2000 for shock and for injuries to his neck and arms, and another $1500 in special damages was warranted against the defendants for their having defended the charge.

Happy Thanksgiving!

1 My browser thinks Wyandot is misspelled. For shame.

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