Sidhu v. Vancouver (City), 2024 BCSC 1735

Background

The Plaintiff, Ayisha Sidhu, filed a claim against the City of Vancouver for battery, alleging she was injured by two police officers who responded to a fight outside a nightclub in Vancouver’s Granville Entertainment District.

The fight was started by an unidentified woman, referred to as Ms. X. The Plaintiff became involved when she came to the defence of a friend. The fight and the Plaintiff’s subsequent detention were captured by CCTV and took place in less than a minute.

The City acknowledged that the officers used unwanted force on the Plaintiff, but argued that the force used was lawful, reasonable, and justified in accordance with s.25 of the Criminal Code. In addition, the City argued the Plaintiff had not proven her injuries were caused by the officers.

CCTV

The Court reviewed the facts using the CCTV footage and split the interaction into four discrete instances of alleged excessive force. The footage began with the Plaintiff and her two friends, Ms. Birk and Ms. Mattu, walking side by side down the middle of the sidewalk. Four officers were ahead of and slightly to the right of the Plaintiff, with their backs turned.

Ms. X approached the group from behind and suddenly grabbed Ms. Birk’s hair. The Plaintiff pulled Ms. X off Ms. Birk. A melee quickly developed and three officers moved in. One officer, PC Skates, grabbed Ms. Birk, pulling her away from the melee. Another officer, PC Oliver, grabbed Ms. Mattu and moved her away as well.

Use of Force #1

The other two individuals continued fighting. Ms. X ended up on her back with the Plaintiff crouched over her, throwing punches.

PC Oliver let go of Ms. Mattu, announced he is a police officer, and told the Plaintiff to stop fighting. The Plaintiff continued to fight so PC Oliver grabbed her under both arms and pulled her away.

The Plaintiff and Ms. X momentarily let go of each other, which resulted in PC Oliver losing his balance and dropping the Plaintiff in an effort to avoid falling himself. Ms. X regained hold of the Plaintiff and the two begin fighting again while they were both on the ground.

Use of Force #2

While the Plaintiff was on the ground, PC Oliver took hold of her wrist while simultaneously pushing away Ms. X. Meanwhile, Ms. Mattu approached Ms. X from behind, grabbed her hair, pulled her away from the Plaintiff, and the two started fighting while bystanders tried  to separate them.

PC Oliver, now isolated with the Plaintiff and still holding her wrist, took hold of her neck as she moved from a sitting to a squatting position. At trial, PC Oliver testified he was concerned with the Plaintiff standing up to rejoin the fight, and that he believed he needed to take her to the ground to gain control of her, assess the circumstances, and complete the arrest. To control the Plaintiff, PC Oliver rotated her and pushed her head down. The Plaintiff collapsed to her knees and fell forward, allegedly breaking her nose.

Use of Force #3

PC Oliver then led the Plaintiff away to a nearby lamp post and told her to stay where she was. PC Oliver then left to attend to a situation developing in the roadway.

The Plaintiff left the lamp post several moments later and walked towards PC Skates, who was standing with Ms. X. PC Skates testified that the Plaintiff was aggressively approaching them and he was concerned she would attempt go through him and begin fighting Ms. X. The Plaintiff testified that she was approaching him to demand medical attention for her broken nose.

PC Skates took the Plaintiff by the arm and led her back across the sidewalk while she attempted to free herself several times. The Plaintiff was then handcuffed without further incident. Once in handcuffs, the Plaintiff began yelling and swearing at bystanders. Concerned that she could initiate a new disturbance, the Plaintiff was taken to a police wagon.

Use of Force #4

Once in the police wagon, PC Skates observed a bump on her forehead, however no ambulances were available to attend the call. PC Skates received authorization to transport the Plaintiff to the hospital in the police wagon.

When they arrived at the hospital, PC Oliver took the Plaintiff into custody again and escorted her to the emergency room, still in handcuffs. He testified that he kept her in handcuffs while waiting because he was concerned she might breach the peace again. After the Plaintiff was seen by the triage nurse and learned it would be several hours before she could be seen, she was released. The Plaintiff left the hospital approximately 20 minutes after she arrived, without receiving medical care.

Decision

In closing submissions, the Plaintiff focused her claim on Use of Force #2 by PC Oliver. She acknowledged that he had reasonable grounds to arrest her and did not use unreasonable force in relation to Use of Force #1. The Court accepted, on a balance of probabilities, that PC Oliver’s actions in Use of Force #2 caused the Plaintiff’s broken nose and blackened eyes and constituted battery.

Justification is a complete defence to battery, as set out in section 25(1) of the Criminal Code.

In establishing a justification defence in the context of an arrest made by a police officer, three elements must be proven:

• the officer’s conduct was required or authorized by law in administering or enforcing the law;
• the officer was making the arrest based on reasonable grounds; and
• the officer did not use unnecessary force in effecting the arrest.

In finding Use of Force #2 reasonable in the circumstances, and dismissing that aspect of the claim, the Court noted that it was necessary to consider PC Oliver’s actions in full context – a rapidly unfolding situation in real time. When he first intervened, Ms. X was on the ground in a vulnerable position, and the Plaintiff was over top of her, unresponsive to his presence or verbal commands to stop fighting. The Court accepted PC Oliver’s evidence that he subjectively believed the following: he did not yet have the Plaintiff under sufficient control to complete the arrest, he needed to survey the scene to decide how and where to complete the arrest, and his best strategic option was to put the Plaintiff on her knees with her head down.

The Court also dismissed the Plaintiff’s claim that PC Skates did not have reasonable grounds to arrest her in Use of Force #3, finding that his subjective belief that she would try to go through him to get at Ms. X was objectively reasonable. In the chaotic and potentially violent circumstances, handcuffing the Plaintiff and putting her in the police wagon was reasonable and proportional.

The Court did find, however, that there was no evidence to justify the use of the restraint on the Plaintiff in the hospital as it was an affront to her dignity, albeit a “minor one”, awarding only nominal damages for Use of Force #4.

 

Grenfal v. British Columbia (Minister of Public Safety and Solicitor General), 2024 BCSC 1587

 

The Plaintiff, Noll Grenfal, successfully established the police acted unreasonably and used excessive force when a police service dog (“PSD”) was released to take him down during an arrest.

Background

Two officers were dispatched to the Plaintiff’s residence in response to a domestic dispute. Cst. Steeves approached the property from the east with his service revolver drawn. Cpl. Carey entered from the west with the PSD on a long leash.

The Court found that on arrival, the officers correctly perceived the Plaintiff was subjecting his partner to escalating violent behaviour, and properly characterized the situation as one where he posed a risk of “grievous bodily harm or death”. Around the time the police arrived, they were advised that the Plaintiff had gone out to the barn in the backyard, where he kept his tools.

Cst. Steeves first found the Plaintiff in the barn and pointed his gun at him. The Plaintiff complied with his directions to get out of the barn, put his hands up, and get on his knees, but did not prone out on the ground as ordered. When Cpl. Carey arrived, the Plaintiff was ordered again, by both officers, to prone out on the ground. The Plaintiff did not do so, but was calm and non-violent, trying to convince the officers that everything was fine and that he did not need to prone out on the grass. The PSD was released and took him down. The Court found that the officers interacted with the Plaintiff for approximately 10 seconds before releasing the PSD.

Prior to the PSD release, the officers were about 15 feet away from the Plaintiff. The Court found there was nothing preventing the officers from moving a further five to ten feet away from the Plaintiff if they felt they needed more space. The Court also found that Cpl. Carey did not give a warning prior to the release, although the PSD was barking loudly and the Plaintiff was aware of its presence.

Situational Assessment

Cst. Steeves’ use of force report after the encounter noted he assessed the Plaintiff’s subjective behaviour as “passive resistant” when the Plaintiff was on his knees. He testified that he had never seen a PSD released on a passive-aggressive suspect in his six years of policing.

Given the high probability that the Plaintiff had a weapon, based on information from dispatch, Cpl. Carey testified that he would have not allowed any arrests until the Plaintiff was prone on the ground. Throughout the encounter, Cpl. Carey’s assessment remained at the highest level of risk due to the disconnect between the Plaintiff’s behaviour as relayed by dispatch and his nonchalant manner during the encounter, the Plaintiff refusing to prone despite the direction to do so, the loud barking dog and gun pointed at him, and the close proximity between them.

Cpl. Carey had two main concerns: one, that the Plaintiff may be trying to trick them into lowering their guard such that he could not be safely approached while he was on his knees, and, two, he did not know the status of the complainant or anyone else in the property. The Court did not accept Cpl. Carey’s evidence that the Plaintiff had to be arrested “fast” so they could check on the status of the complainant. The Court held that the complainant was communicating with dispatch during the encounter, and that Cpl. Carey did not ask dispatch about her status. Cpl. Carey also testified that the PSD was the best option to prone the Plaintiff on the ground so he could be arrested, as his other weapons (revolver, conducted energy weapon, pepper spray, batons) were not appropriate or would not have been effective.

Expert Testimony

Three use of force experts testified in this case. The Court found the following evidence persuasive:

• within all the circumstances, if the officers reasonably perceived an imminent threat to themselves, or the complainant in the house required medical attention, then release of the PSD could be justified. If the officers did not perceive an imminent threat, further communication would be appropriate;
• the decision to use force is a calculus of reasonableness with three considerations: situation factors, subject behaviour, and response; and
• de-escalation and communication are significant issues that need to be considered in every use of force case, and the RCMP did not formally include de-escalation for training at the time of the incident.

The Court did not agree the officers should have approached and arrested the Plaintiff in the kneeling position, noting that in the circumstances, Cpl. Carey had good reason to be wary of the Plaintiff. Ultimately, the Court preferred the opinion of an expert who was of the view that there was time for police to change their tactical position if necessary, and the situation would have been best handled by waiting, communicating and building rapport while more officers arrived to assist, to give the situation time and opportunity to de-escalate. The difference in opinion between the experts was whether the officers perceived an imminent threat of harm.

Decision

In the result, the Court held that the release of the PSD on the Plaintiff constituted an assault, unless the use of the PSD was in accordance with s.25 of the Criminal Code. As noted above, an officer is justified in using force to effect a lawful arrest if they acted on reasonable and probable grounds and used only as much force as necessary in the circumstances. Section 25(3) prohibits an officer from using a greater degree of force (that which is intended or likely to cause death or grievous bodily harm) unless it is objectively necessary in the circumstances to protect themselves or another person from death or grievous bodily harm.

In the Court’s view, the critical issue was whether “time was of the essence” such that Cpl. Carey was acting on reasonable grounds in releasing the PSD to facilitate the arrest of the plaintiff. In finding liability against the police, the Court answered in the negative – time was not of the essence, and the release of the PSD was unreasonable on the basis that:

• there was no imminent threat of violence from the Plaintiff, who was on his knees, approximately 15 feet away from the officers;
• Carey did not believe that the Plaintiff would be able to effectively attack him or others in his vicinity; and
• there was no objective basis for concern that the Plaintiff’s partner was in need of medical attention.

Although the Court was “struck by Cpl. Carey’s integrity” and understood his focus was on quickly arresting the Plaintiff, the court ultimately found that he erred in rushing to release the PSD on the basis that time was of the essence, when it was not. In the result, the Plaintiff was awarded $40,000 in non-pecuniary damages, and $20,000 for loss of past income.

Conclusion

Police actions are not judged against a standard of perfection. Officers engage in dangerous and demanding situations and often must act quickly in emergencies.

In Sidhu, the Court dismissed the substantive allegations of excessive use of force. The officers’ actions, given their knowledge of the situation and chaotic setting, was reasonable and proportional in the circumstances.

In Grenfal, the Court found liability for excessive use of force against the police for rushing to try and facilitate a quick arrest when other reasonable options were available. Further communication and attempts to de-escalate was warranted. Grenfal is a good reminder for officers to exhaust all options, including de-escalation, when executing an arrest where there is no objectively reasonable imminent threat of harm.

If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.