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Digest of the Week — Elmardy v. Toronto Police Services Board

Elmardy v. Toronto Police Services  |
2015 CarswellOnt 6690 |
Ontario Superior Court of Justice

Torts | Malicious prosecution and false imprisonment | Liability of parties | Participant in arrest | Police officers

Plaintiff E was walking on city street, when he was stopped by defendant police officer for questioning — E claimed that officer punched him twice, then handcuffed him for some 30-45 minutes — E was never read his rights or told why he was handcuffed, according to him — Officer claimed that he suspected E had weapon, based on his verbal aggression and body language — Officer suspected that E would be violent if not restrained — Officer only let E go when computer search showed that E was not violating bail conditions, as officer suspected — E brought action against officer and city police service, for assault and battery, unlawful arrest, and violation of his rights under Charter of Rights and Freedoms — Action allowed — Evidence of both E and officer had some inconsistencies — Officer and his partner had no reasonable suspicion of criminal conduct by E, when they first questioned him — Verbal hostility of E was not proper indication of suspicion, but rather due to situation of being asked to show hands on cold night where E did not have gloves on — E was punched by officer, although other physical contact was incidental — Manner of handcuffing caused E's hands to go numb in cold weather — There was no objective evidence that would have allowed police to form suspicion of unlawful activity — Search of E's pockets and wallet was unlawful as result, and violated E's Charter rights — Force used by officer was excessive, and was not protected by operation of Criminal Code — E's injuries were minor, although there was degree of humiliation in his encounter with officer — This entitled E to $5,000 in general damages for assault — False arrest was similarly humiliating to E and $2,000 in general damages was awarded under this head — Illegal search and breach of right to be informed were each awarded $1,000 in damages — Punitive damages were necessary to express court's disapproval of officer's conduct — This was done by tripling total of $9,000 awarded in general damages to E, for total award of $27,000.
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