IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150812

Docket: S122539

Registry:
Vancouver

Between:

Joszef
Bencsetler

Plaintiff

And

City
of Vancouver, Constable Ara Pehlivanian, John Doe, and Jane Doe

Defendants

Before:
The Honourable Mr. Justice Fitch

Reasons for Judgment

A.       Introduction

[1]            
Joszef Bencsetler (the plaintiff) advances a tort claim for battery
against Vancouver Police Department Cst. Ara Pehlivanian and the City of Vancouver
(the defendants).  The claim arises out of events surrounding the plaintiff’s
arrest by Cst. Pehlivanian at a Vancouver Canucks hockey game on April 10,
2010.  The evidence establishes that the plaintiff suffered a serious shoulder
injury in the course of his arrest.  The plaintiff seeks a sizeable award for
pecuniary and non-pecuniary damages.  In addition, he seeks a declaration that
the circumstances and manner of his arrest violated his ss. 7 and 9 Charter
rights, and damages pursuant to Ward v. Vancouver, 2010 SCC 27
arising out of his alleged arbitrary detention.

[2]            
At issue in the case is:  (1) whether Cst. Pehlivanian had lawful
grounds to arrest the plaintiff; and (2) if he did, whether the defendants have
discharged their onus of establishing, on a balance of probabilities, that he
acted on reasonable and probable grounds, and used only as much force as was
necessary in the circumstances to effect the arrest.  Unless the defendants
discharge their onus to justify the use of force, and establish that the degree
of force used was reasonable and not excessive in the circumstances, the
plaintiff is entitled to an assessment of his damages.

[3]            
The case engages s. 25 of the Criminal Code, R.S.C. 1985,
c. C-46, which permits a peace officer to resort to force in making a
lawful arrest, but constrains the degree of force that may be used by reference
to the principles of proportionality, necessity and reasonableness: R. v. Nasogaluak,
2010 SCC 6 at paras. 32-35.

[4]            
The plaintiff and Cst. Pehlivanian gave very different accounts of
the events leading up to the arrest, and very different accounts of the nature
and degree of force used in making the arrest.

[5]            
The plaintiff testified that Cst. Pehlivanian repeatedly punched
him in the face and, when he voluntarily went to the ground, kicked him in the
head causing him to blackout.  According to the plaintiff, all of
Cst. Pehlivanian’s actions were gratuitous and without justification.

[6]            
Cst. Pehlivanian testified that the plaintiff, who was in a grossly
intoxicated condition, assaulted a GM Place security guard as she endeavoured
to escort him from the building.  Cst. Pehlivanian intervened immediately
after the assault and took the plaintiff to the ground.  When the plaintiff was
on his stomach on the ground, he tucked his arms underneath his body, refused
to respond to verbal commands, and resisted attempts to handcuff him. 
Cst. Pehlivanian delivered a single knee strike to the plaintiff’s upper
left arm to create a motor dysfunction and to assist him in freeing the
plaintiff’s hands for handcuffing.

[7]            
Cst. Pehlivanian’s version of events is generally confirmed by two
other witnesses called at trial who observed the altercation – Cecelia
Araya-Diaz, the GM Place security guard who dealt with the plaintiff, and Peter
Dhillon, a businessman and acquaintance of Cst. Pehlivanian, who was
attending the hockey game and happened by as the altercation unfolded.

[8]            
The plaintiff submits that his version of events should be accepted.

[9]            
In the alternative, the plaintiff argues that even if the version of
events related by Cst. Pehlivanian is accepted, the force used to make the
arrest was unreasonable, unnecessary, and disproportionate to the minimal
threat he posed when the force was applied.

B.       Overview of the
Evidence

[10]        
I will review only so much of the evidence as is necessary to resolve
this action.

(a)      The
Plaintiff

[11]        
The plaintiff was 36 years of age at the time of the events underlying
this action and 41 years of age when he testified at trial.  He is about
5’10" and, at the time of the incident, weighed between 185 and 190
pounds.  The plaintiff resides with his parents.  For the past nine years, he
has worked as a security guard.  In conjunction with his job, the plaintiff
attended for two weeks of basic security training.

[12]        
At the time of the incident underlying this action, the plaintiff was
working the 10:00 p.m. – 6:00 a.m. shift.  On April 10, 2010, he got home from
work at 6:30 – 7:00 a.m.  He slept until 2:00 – 3:00 p.m. and ate a late afternoon
meal with his family before leaving for the Canucks game.  He had no alcoholic
beverages over dinner.  He left for the game at about 5:15 p.m.  His father
testified that, because he thought the plaintiff might be drinking, he told him
not to drive.  The plaintiff took public transit to the game, which started at
7:00 p.m.

[13]        
The plaintiff arrived at what was then known as GM Place at about 5:45
p.m.  The plaintiff, who described himself as a pack-a-day smoker, had two
cigarettes outside before entering the arena at 5:00 p.m.  The gate attendants
told him it was too early to go to his seat, but said that the lounge on the
fourth floor was open.  The plaintiff went to the fourth floor lounge and
ordered chicken wings and three beers.  He testified that each beer was poured
into a glass by the waitress who showed him there was about one-third left in
the can after the glass was filled.  The plaintiff said that on each occasion
he told the waitress to toss away the remaining contents of the can.

[14]        
The plaintiff left the lounge at about 6:50 p.m.  He mentioned to a
server in the lounge that he wanted to buy a Canucks jersey before the game
started and was directed to a stairway leading from the lounge down to a ground
floor store called Authentic Wear.

[15]        
The plaintiff headed down the stairs and made it three floors down to a
concrete landing almost at ground level, when a female security guard pointed
at him and said something like, "Come here please".  The plaintiff
spoke to her on the landing.  He testified that the stairs leading to the
ground level were behind him and to his left, about 10 feet away.

[16]        
When the plaintiff approached the security guard, she asked him why he
was smoking in the stairwell.  The plaintiff denied doing so.  He was advised
by the security guard that he fit the description of a person who was smoking
inside the building.  She asked for his ticket.  When he produced his ticket,
the security guard attempted to pull it from his hand.  The plaintiff held on
to his ticket and it ripped in half.  The plaintiff acknowledged that when the
ticket ripped he got angry and loud.  He denied using profanity in the
exchange.  He denied waving his arms about in an effort to prevent security
from taking hold of him.  He admitted that he pointed at the security guard’s
radio when she communicated with her colleagues during the course of the verbal
exchange and asked her why she was calling him in, but denied ever touching
her.

[17]        
After arguing with the security guard for approximately 45 seconds to
one minute, the plaintiff was shoved from behind and pushed forward 3 to 4 feet. 
After regaining his balance, he turned and saw a uniformed Vancouver Police
Department officer coming at him from the side, throwing punches with both
hands. The plaintiff testified he was hit three to four times in the face.  He
put his hands up in front of his face to block the punches.  The female
security guard he initially dealt with was present, but the plaintiff did not
take notice of the presence of anyone else.

[18]        
After three to four punches in the face, the plaintiff said, "I’ve
had enough", pushed the police officer back 2 to 3 feet to create some
space between them, and went down to the floor on his stomach with his hands
straight out in front of himself.  The plaintiff said the officer then kicked
him in the face.  The plaintiff believes he lost consciousness.  He testified
he has no memory of receiving a knee strike to his upper left bicep.  His next
memory is sitting against a wall in the stairwell with his feet in front of
him.  He was disoriented and in handcuffs.  A first aid attendant was cleaning
blood off his face.  He said the handcuffs were really tight on his wrists and
that he had a sharp pain in his left shoulder.  He sat for 15-20 seconds before
another officer came over and tried to pick him up by his left shoulder.  He
asked the officer to lift him on the right side because his left shoulder was
in a lot of pain.  This second officer took him from the stairwell to a paddy
wagon outside the arena.  The plaintiff testified that he sat in the paddy
wagon for 15 – 20 minutes.  The plaintiff denied being given two violation
tickets by Cst. Pehlivanian or being told by him that he was going to jail
to sober up, before he was escorted to the paddy wagon.  The plaintiff testified
that as he sat in the paddy wagon, he was hoping the police would release him
so he could go back in and watch the game.

[19]        
The plaintiff denied admitting to Cst. Pehlivanian after his arrest
that he had been smoking in the stairwell.

[20]        
The plaintiff saw no security guards other than the female guard that
called him over and ripped his ticket.  Specifically, he has no recollection of
a second female security guard attending at the stairwell and standing in front
of him.  He never heard anyone identify himself as a police officer or command
him to "stop", "relax", "calm down", or offer his
hands up for handcuffing.

[21]        
The plaintiff was driven to the police station and housed in a large,
dirty cell.  He said that he remained standing as much as he could.

[22]        
The documentary evidence reflects that the plaintiff was received at the
jail at 7:51 p.m. and released at 11:35 p.m.

[23]        
The plaintiff said no one took off his handcuffs in the three hours and
45 minutes he spent in the jail cell even though he told the guards that
his wrists were hurting.

[24]        
The plaintiff testified that before he was released, a woman asked him
if he was going to behave.  He told her he was behaving and that he wanted to
watch the Canucks game.  She told him the game was over.  This woman escorted
the plaintiff to a desk, removed his handcuffs, and gave him back his personal
effects.  She also gave him two tickets.  The first ticket was a violation
ticket for being intoxicated in a public place contrary to s. 41(1) of the
Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 (LCLA). 
The second was a City of Vancouver notice of bylaw violation charging him with
smoking inside a commercial building.

[25]        
The plaintiff signed a form on release agreeing that all of his property
tagged on admission to the Vancouver Jail was accounted for at the time of his
discharge.  The plaintiff signed for receipt of $196.14 in cash.

[26]        
The plaintiff testified he was never told why he was arrested, and never
told he could call a lawyer.

[27]        
The plaintiff got home at about 1:00 a.m.  His face was numb and his
left shoulder was throbbing.  His father took him to the Richmond General
Hospital the next morning.  X-rays taken that morning revealed a slightly
displaced fracture to the humeral head of his left shoulder.  A subsequent MRI
revealed one tear and another suspected tear to his left shoulder rotator cuff
tendons, and a possible tear to his left shoulder labrum.  The plaintiff may
require surgery on his shoulder and is currently waiting for a further
assessment by an orthopedic surgeon.

[28]        
The plaintiff’s father took photographs of the plaintiff’s injuries
right after his attendance at the hospital and again a few days later.  The
photographs depict the plaintiff with significant facial abrasions, including a
blackened left eye, marks on his wrists where the handcuffs were secured, and a
very large bruise on his upper left arm.

[29]        
The plaintiff was assessed by his family physician on April 13, 2010. 
In addition to noting the fracture involving the humeral head, the plaintiff
was observed to have abrasions and bruising to his forehead and around his left
eye, as well as bruising to his left bicep, right ribs and back.

[30]        
The plaintiff was convicted of being intoxicated in a public place
contrary to s. 41(1) of the LCLA following a trial before a
judicial justice of the peace.  The plaintiff was self-represented on that
occasion.  The only two witnesses called at trial were Cst. Pehlivanian
and the plaintiff.  In convicting the plaintiff, the judicial justice of the
peace said:

In this case, I am satisfied that three
beers between 6:00 and 7:10, which is when this incident happened, would have
resulted in Mr. Bencsetler being intoxicated to some degree.  Accordingly,
I am satisfied [the] Crown has proven this charge beyond a reasonable doubt. 
The defendant is found guilty as charged.

[31]        
In cross-examination, the plaintiff agreed he had $300-$350 in cash when
he left for the game.  He had this amount of money because he planned on buying
a Canucks jersey.  The plaintiff said his lounge bill could not have been more
than $30-$40 and the only other expenditures he had that night were bus fare
and a $5 button he bought at the arena gate to support a charity.  The
plaintiff had no receipts from GM Place to confirm his alcohol consumption that
evening and agreed he did not ask anyone if this information could be
retrieved.

[32]        
The plaintiff sought to account for the difference between the amount of
money he had when he left for the game and the amount returned to him on his
discharge from the Vancouver Jail by testifying at trial that some of his money
was missing when he was released.  The plaintiff testified the missing money
"wasn’t a big deal" and he never mentioned this to anyone other than
his mother and father.  Specifically, the plaintiff agreed that he never
mentioned this during his examination for discovery, nor did he raise it in his
written complaint to the Office of the Police Complaint Commissioner (OPCC).

[33]        
In cross-examination, the plaintiff testified he had no recollection of
telling his family physician he was "tackled" during the
altercation.  He might have said he was "attacked" but never said he
was "tackled".  The plaintiff’s family physician testified that,
while he could not recall the exact words the plaintiff used to describe the
altercation, the plaintiff left him with the impression that he was tackled or
taken to the ground forcefully.  The plaintiff also denied telling a
physiatrist, to whom he was referred by his counsel, that he was "knocked
to the ground" or "taken to the ground" in the altercation. 
While the physiatrist’s notes and report reflect that the plaintiff conveyed to
him this version of events, the plaintiff testified that the words used by the
physiatrist reflect a miscommunication, and that he voluntarily went to the
ground in a spread-eagle position after being punched repeatedly by
Cst. Pehlivanian.  Intake records obtained from the Richmond General
Hospital reflect that the plaintiff advised an admitting nurse that he did not
lose consciousness during the altercation.  The plaintiff also denied saying
this.  He testified he told the admitting nurse he did lose consciousness
during the incident.

[34]        
The plaintiff was asked in cross-examination to read the statement of
facts set out in his original Notice of Civil Claim.  Paragraph 18 of the
plaintiff’s Notice of Civil Claim reflects that, after he was shoved from
behind, the plaintiff saw three to four uniformed police officers, including
Cst. Pehlivanian, gather around him.  The plaintiff was then referred to
evidence he gave on his examination for discovery wherein he clarified that he
did not know whether the officers who gathered around him were police officers.
He said that from what he saw, they appeared to be security officers.

[35]        
When it was put to the plaintiff that he was so intoxicated he has no
clear memory of what happened during the incident, the plaintiff responded that
he knows exactly what happened until he was kicked in the face.

(b)      Cst. Pehlivanian

[36]        
Cst. Pehlivanian has been a police officer for 17 years.  Since
2001 he has been employed by the Vancouver Police Department.

[37]        
On April 10, 2010 he was working in the Department’s Diversity and
Aboriginal Policing Section.  He was, in this capacity, responsible for
community outreach and educational initiatives including organizing a
"citizens’ police academy".  This initiative targeted ethnic
community leaders and representatives from marginalized groups in an effort to
impart knowledge about policing responsibilities and address community misconceptions
about the work of police officers.  Peter Dhillon, the Chair of Ocean Spray
Cranberry Co-operative, was a participant in the citizens’ academy.

[38]        
On April 10, 2010 Cst. Pehlivanian was working an extra duty shift
in uniform at a Vancouver Canucks hockey game at GM Place.  He testified that
police officers routinely assist GM place security guards in the performance of
their duties, which include ejecting from the premises intoxicated patrons and
patrons who are found smoking inside the arena.  The police will step in when
required to enforce the provisions of the Criminal Code and LCLA. 
Typically, six to eight constables and one sergeant will be on duty at a hockey
game.

[39]        
On April 10, 2010 Cst. Pehlivanian was partnered with GM Place
security guard Cecelia Araya-Diaz.  Ms. Araya-Diaz received a report that
someone was smoking on a stairwell inside the building and asked him to
accompany her.

[40]        
The plaintiff was being dealt with by two other security guards on a
stairwell landing.  Cst. Pehlivanian and Ms. Araya-Diaz approached
from below.  Cst. Pehlivanian noted that there were 12 stairs going up to
the landing.  Cst. Pehlivanian observed the interaction between the
plaintiff and the security guards from a vantage point that was one or two
steps up from the landing.  He testified he wanted to give the security guards
some space to deal with the plaintiff.

[41]        
As he was standing on the stairs, Cst. Pehlivanian noticed Peter
Dhillon and greeted him while maintaining observation of the plaintiff, the two
security guards who were on the scene when he arrived, and Ms. Araya-Diaz.

[42]        
Cst. Pehlivanian testified that the plaintiff was angry and being
non-compliant with the security guards.  The security guards were trying to
talk to the plaintiff and grab his arms.  The plaintiff was saying
"No" and pulling his arms away from them.  Although
Cst. Pehlivanian has no specific recollection of the security guards
advising the plaintiff he was being evicted, he recalled that the plaintiff was
refusing to go with them.  The plaintiff was using words of defiance that
Cst. Pehlivanian cannot now remember, specifically.  Cst. Pehlivanian
noted the plaintiff’s speech was slurred.

[43]        
Cst. Pehlivanian has a clear memory of making eye contact with the
plaintiff.  He was about 3 feet away from the plaintiff.  He noticed a faint
smell of liquor coming from the plaintiff, who appeared to be having some
balance issues.  He formed the opinion that the plaintiff might be intoxicated.

[44]        
While the plaintiff was moving his arms all over the place,
Cst. Pehlivanian interjected and yelled at him to "Stop" and
"Calm down".  The plaintiff ignored these verbal commands and his
aggressive behaviour escalated.  Cst. Pehlivanian described the scene as
dynamic and testified that while the plaintiff was surrounded by security
guards, people were moving around the landing area.

[45]        
About 10 seconds after Cst. Pehlivanian’s arrival, the plaintiff
pushed or punched Ms. Araya-Diaz in the shoulder, backing her up against a
wall.  Cst. Pehlivanian testified that the push or punch delivered by the
plaintiff was forceful.  He is 99% certain the plaintiff struck
Ms. Araya-Diaz with a closed fist, but conceded the blow might have been a
palm strike.

[46]        
At this point, Cst. Pehlivanian determined to intervene.  He
testified that he decided to go "hands on" because the plaintiff was
out of control, his behaviour was escalating, and he was not responding to
verbal commands.  Cst. Pehlivanian testified he was "absolutely"
of the view when he intervened that no additional verbal commands would bring
the plaintiff under control.

[47]        
Cst. Pehlivanian identified an area on the landing he wanted to put
the plaintiff, grabbed the plaintiff’s upper torso, and forcefully pulled or
pushed him down to the ground.  He was assisted in doing so by a male GM Place
security guard.  Cst. Pehlivanian testified that he lost his grip on the
plaintiff and was unable to maintain hold of him as he went to the ground. 
Although he attempted to break the plaintiff’s fall, the plaintiff hit his face
"pretty hard" on the landing in what Cst. Pehlivanian described
as a "free fall".  Cst. Pehlivanian testified that he did not
intend for the plaintiff to hit his face on the concrete landing.

[48]        
In cross-examination, Cst. Pehlivanian testified that he used as
much force as was necessary to bring the plaintiff to the ground.  On
examination for discovery, Cst. Pehlivanian said he used as much force as
he could to drive the plaintiff downward.

[49]        
Cst. Pehlivanian testified that Peter Dhillon was behind him on the
stairs and in a position to have a clear view of what was happening on the
landing below.

[50]        
Once on his stomach, the plaintiff buried his hands under his body. 
Cst. Pehlivanian tried to pull the plaintiff’s hands out and yelled at the
plaintiff to stop resisting.  The plaintiff did not comply with these verbal
commands and forcefully resisted producing his arms for handcuffing.

[51]        
In response, Cst. Pehlivanian delivered a single knee strike to the
plaintiff’s upper left arm.  He said he did so to inflict a measure of pain for
the purposes of gaining the plaintiff’s compliance, and to create a motor
dysfunction that would weaken the plaintiff’s arm and assist him in gaining
control of the plaintiff’s hands.  Cst. Pehlivanian testified that knee
strikes are not intended to injure a non-compliant person, but it sometimes
happens that people do suffer an injury in the area of a knee strike.

[52]        
After the knee strike was delivered, Cst. Pehlivanian testified the
plaintiff continued to resist efforts to pull his arms out from under his
body.  On examination for discovery, Cst. Pehlivanian had testified that
the plaintiff produced his hands immediately after the knee strike was
delivered.  He sought to clarify this discrepancy by explaining that it
recently came to him that the plaintiff continued to resist having his arm
pulled out from under his body after the knee strike was delivered.

[53]        
With the assistance of a security guard, Cst. Pehlivanian managed
to get the plaintiff’s left arm out from under his body and applied handcuffs.

[54]        
Cst. Pehlivanian testified the plaintiff was handcuffed because he
had been arrested, had demonstrated he was capable of violence, and was a risk
to others.  Cst. Pehlivanian testified that he did not consider the
plaintiff to be under control until he was handcuffed.

[55]        
When he was on the ground with the plaintiff, Cst. Pehlivanian
smelled liquor and fresh cigarette smoke on the plaintiff’s breath.

[56]        
Cst. Pehlivanian testified he intervened when and in the manner he
did because the plaintiff was aware of his presence, ignored his verbal
commands and escalated his behaviour to the point of assaulting
Ms. Araya-Diaz.  He testified the plaintiff appeared to be determined to
fight at all costs and that he was a big man.  Cst. Pehlivanian testified
that after the plaintiff struck Ms. Araya-Diaz, he considered it his duty
to take control of the plaintiff.  He testified that his training is to the
effect that combative subjects must be controlled, put in a prone position if
necessary, and placed in handcuffs.  In addition, Cst. Pehlivanian noted
that everyone was standing on a stairwell landing and he was concerned someone
could be knocked down a flight of concrete stairs in the course of a continuing
altercation.  Taking the plaintiff to the ground ensured no one dealing with
the plaintiff would be knocked down the stairs.  Cst. Pehlivanian
testified that the force he used fell at the lower end of the use of force
options available to him.  He testified he could have used a baton or pepper
spray to gain control of the plaintiff, but the confined space in which the
incident took place precluded resort to these options.

[57]        
Cst. Pehlivanian testified that his authority to arrest the
plaintiff after he assaulted Ms. Araya-Diaz stemmed from s. 495 of
the Criminal Code.  Cst. Pehlivanian also testified he had
authority to arrest the plaintiff under s. 41(2) of the LCLA, which
provides that a peace officer may arrest, without a warrant, a person found
intoxicated in a public place.

[58]        
Cst. Pehlivanian denied ever pushing the plaintiff from behind,
punching him in the face, or kicking him in the head after he was down.  He did
not see any of the security guards punch the plaintiff before he was taken to
the ground, or kick him after he was on the ground.

[59]        
After the plaintiff was handcuffed, Cst. Pehlivanian propped him up
and noticed blood on the plaintiff’s face.  The plaintiff was grimacing and said
something about having shoulder pain.  On examination for discovery,
Cst. Pehlivanian testified that he could not recall what kind of pain the
plaintiff complained of after his arrest.

[60]        
Cst. Pehlivanian escorted the plaintiff down the stairwell and out
of the building.  He held onto the plaintiff as they left the building because
the plaintiff was intoxicated and he needed to make sure the plaintiff did not
fall down the stairs while handcuffed.  Cst. Pehlivanian testified the
plaintiff was never unconscious and that no other officer attended to escort
the plaintiff from the stairwell out of the building.

[61]        
Once outside, Cst. Pehlivanian told the plaintiff he had been
arrested for being intoxicated in a public place.  The plaintiff continued to
slur his words.  Cst. Pehlivanian repeated this information to the
plaintiff.  He told the plaintiff he was going to jail because of his violent
behaviour.  In detaining the plaintiff, Cst. Pehlivanian testified he was
applying Vancouver Police Department Policy 1.4.5. entitled "Hold
[State of] Intoxication in a Public Place" (HSIPP).  Cst. Pehlivanian
testified that the policy applies where a person is intoxicated to marked
degree and constitutes a danger to themselves or others.  He testified the
plaintiff "most definitely" fit that standard.

[62]        
Cst. Pehlivanian did not advise the plaintiff of his right to
counsel.  He explained that as he had determined not to proceed with criminal
charges, the plaintiff faced no criminal jeopardy.

[63]        
Cst. Pehlivanian testified that, despite all that had occurred, the
plaintiff’s focus continued to be on his desire to watch the hockey game and he
pleaded to be let back into the arena.

[64]        
Cst. Pehlivanian advised his supervising sergeant of the incident
and asked him to attend.

[65]        
Cst. Pehlivanian spoke with the plaintiff for five or ten minutes
outside the arena before the paddy wagon arrived.  The plaintiff, who had
cigarettes and a lighter in his possession, admitted to Cst. Pehlivanian
that he had been smoking in the stairwell.

[66]        
Cst. Pehlivanian asked a first aid attendant to treat the
plaintiff.  She cleaned up the plaintiff’s face and told Cst. Pehlivanian
that the plaintiff was fine to be transported to the jail.  The plaintiff did
not ask to go to the hospital.  Cst. Pehlivanian noticed the plaintiff was
continuing to grimace and appeared to be in discomfort but testified that such
a reaction is not uncommon from individuals who are handcuffed.

[67]        
Cst. Pehlivanian exercised his discretion not to charge the
plaintiff with assault.  He testified that doing so would make him unavailable
for the rest of the evening, leaving about six other police officers to deal
with 18,000 people.  Instead, he determined to charge the plaintiff under the LCLA
for being intoxicated in a public place, and, in addition, gave him a notice of
bylaw violation for smoking in a commercial building.  Cst. Pehlivanian
testified he advised the plaintiff of the nature of the tickets and placed them
in a bag with the plaintiff’s personal effects.

[68]        
The bylaw charge was eventually stayed.  The bylaw prosecutor told
Cst. Pehlivanian that there were concerns about whether the plaintiff’s
admission that he had been smoking inside the arena was voluntary.

[69]        
Cst. Pehlivanian said it is routine to deal with "violent
drunks" during hockey games.  He would typically deal with a minimum of
one to two drunken patrons per shift.

[70]        
Cst. Pehlivanian obtained Ms. Araya-Diaz’s contact
information, but not the contact information for the other security guards
involved in the incident.  He testified it is not a normal procedure to
interview other potential witnesses where someone has been arrested for being
intoxicated in a public place and will be detained until sober, but criminal
charges are not being recommended.  Cst. Pehlivanian testified that he
subsequently asked Ms. Araya-Diaz if she could get the names of the other
security guards.  She told him she was unable to do so.

[71]        
Along with the paddy wagon officer, Cst. Pehlivanian prepared a
Vancouver Jail Arrest Report.  He summarized the circumstances of the arrest in
the following terms:

Security at GM Place confronted
Bencsetler for smoking inside building.  Bencsetler responded violently and
physically fought security and PC.  Ejected from building and found to be too
drunk and violent to be in public.

[72]        
Cst. Pehlivanian made no other notes of the incident in his
notebook.

[73]        
In cross-examination, Cst. Pehlivanian testified that it might have
been more accurate to say in the Arrest Report that the plaintiff fought with
security and resisted (rather than fought) with him.

[74]        
The wagon driver completed other portions of the Arrest Report, noting
that the plaintiff was under the influence of alcohol.

[75]        
The Arrest Report also contains a menu to record force options used
during an arrest.  It is open to an arresting officer to tick off a box
confirming that no use of force was required to make an arrest.  In this case,
the wagon driver checked off a box on the Report indicating that
"other" force was used during the arrest; in other words, force other
than the specific force options identified in boxes on the face of the Report (e.g.
baton, bean bag, Taser, vascular neck, the "wrap" and "pepper
spray").

[76]        
Cst. Pehlivanian checked with Canucks security but was advised that
the stairwell was not video-monitored.  It was his intention to ensure that, if
the incident was captured on videotape, it was preserved.

[77]        
On April 13, 2010 (three days after the incident) Cst. Pehlivanian
prepared a General Occurrence Report.  He testified on examination for
discovery that the report was written immediately after the incident.

[78]        
Cst. Pehlivanian made reference in the General Occurrence Report to
the plaintiff being taken to the ground and suffering facial injuries as a
result.  No mention was made of the knee strike.  Ms. Araya-Diaz and the
St. John Ambulance attendant were identified as witnesses in the General
Occurrence Report, but not Peter Dhillon.  Cst. Pehlivanian testified that
a General Occurrence Report is just a basic report, and that he provided more
information about the incident after the plaintiff made a complaint to the
OPCC.

[79]        
Well after the incident, Peter Dhillon asked to accompany
Cst. Pehlivanian on a ride along and on a foot patrol.  In addition,
Mr. Dhillon invited Cst. Pehlivanian and his wife to his suite at GM
Place to watch a hockey game.

[80]        
In cross-examination, Cst. Pehlivanian testified that he contacted Mr. Dhillon
at his counsel’s request to tell him he would be required as a witness, but
told Mr. Dhillon he could not discuss the incident with him. 
Cst. Pehlivanian has no recollection of Mr. Dhillon phoning him two
to three days after the incident to ask what happened.

[81]        
Cst. Pehlivanian acknowledged in cross-examination that it was not
until the plaintiff complained to the OPCC that he mentioned the knee strike or
the fact that Mr. Dhillon witnessed the incident.  He again explained that
a General Occurrence Report for a HSIPP is very minimal, and that he gave a
full account of the incident when the plaintiff complained to the OPCC.  He
acknowledged it may have been better practice for him to have reported in the
General Occurrence Report, in more detail, his use of force and regrets not
having done so.

[82]        
Cst. Pehlivanian agreed in cross-examination that because the
plaintiff was injured as a consequence of the application of force, Vancouver
Police Department Policy 1.2 (entitled "Use of Force") obliged him to
notify his supervisor of the incident, consider assault-related charges, and
offer medical assistance to the subject (which he did).  He was also obliged to
document the incident in his notebook and General Occurrence Report, with
specific reference to the type of force applied and the type of injury
sustained by the non-compliant subject (which he did not do, or at least did
not do in the comprehensive way required by the policy).

[83]        
Cst. Pehlivanian explained in cross-examination that the use of
force policy requires proportionality, but also counsels a responsive use of
force one level above the resistance demonstrated by the subject in order to
gain control of the situation (the "one + one rule").

(c)      Cecelia
Araya-Diaz

[84]        
Ms. Araya-Diaz testified she received a radio call for assistance
in relation to someone who was intoxicated and smoking in a stairwell.  Together
with Cst. Pehlivanian, she proceeded downstairs to a ground floor landing. 
Two other security guards, one male and one female, were dealing with the
plaintiff.  She noted the plaintiff was slurring his words, swearing and
"swaving".  She said it was "pretty obvious" that the
plaintiff needed to be evicted because he was intoxicated.

[85]        
Ms. Araya-Diaz saw the female security guard take the plaintiff’s
ticket from him.

[86]        
At this point, Ms. Araya-Diaz took over the incident because she
had a police officer with her.  She stood in front of the plaintiff and told
him he was being evicted because he was intoxicated and smoking in the
stairwell.  He told her in a very loud voice to "fuck off" and said
he was not leaving.

[87]        
Ms. Araya-Diaz attempted to take hold of the plaintiff’s left arm. 
The plaintiff then struck her in the left arm, near her shoulder.  She
variously described the blow as a "hit", "push" and
"shove".  The blow hurt Ms. Araya-Diaz and took her back a few
steps.

[88]        
Ms. Araya-Diaz testified that the plaintiff then went to attack
Cst. Pehlivanian who took him to the ground.  The plaintiff continued to
resist while he was on the ground.  He was eventually handcuffed by
Cst. Pehlivanian, who was assisted by the security guards.

[89]        
Ms. Araya-Diaz remembered five security guards being present for at
least some of the incident.

[90]        
After the plaintiff was arrested, he was escorted from the arena.

[91]        
Ms. Araya-Diaz went outside with the plaintiff and
Cst. Pehlivanian.  She noted that the plaintiff had sustained injuries to
his forehead.

[92]        
The plaintiff was upset about being evicted, but admitted that he had been
smoking inside the arena.

[93]        
The male security guard called for first aid assistance, but the
plaintiff refused it.

[94]        
She waited outside with Cst. Pehlivanian until the plaintiff was
driven away in the paddy wagon.

[95]        
She did not see anyone punch, kick, elbow or knee the plaintiff during
the altercation.  The plaintiff did not lose consciousness during the
incident.  He was talking and swearing throughout the event.

[96]        
In cross-examination, Ms. Araya-Diaz agreed that the events were
chaotic and fast-moving, and that her memory has faded in the five years since
the incident.

[97]        
In cross-examination, Ms. Araya-Diaz also agreed that there is a
store in section 121 that sells apparel, and that both the lounge and the
section in which the plaintiff’s seat was located are above it.

[98]        
She testified that Cst. Pehlivanian never asked her the names of
the other security officers involved in the incident.

(d)      Peter
Dhillon

[99]        
Mr. Dhillon met Cst. Pehlivanian in 2009 when he was invited
to participate in the citizens’ police academy.

[100]     Mr. Dhillon
testified he was at the hockey game on April 10, 2010.  He had not consumed any
alcohol.  After the game started, he went to get some food.  He thinks he did
this during an intermission.  As he was walking back up the stairs to his seat
he saw an altercation in progress involving three to four security guards and a
person they had up against a wall.  The altercation was very loud.  The
security guards were telling the person to calm down.  He thought the security
guards were attempting to take control of this individual and escort him out of
the venue.

[101]     Mr. Dhillon
stopped and watched the incident from the stairs.  As he did,
Cst. Pehlivanian arrived on the scene.  They greeted one another.  He
assumed Cst. Pehlivanian had been summoned to the incident. 
Cst. Pehlivanian appeared to be waiting to see what would happen.

[102]     Mr. Dhillon
described the incident as very heated and said that the security personnel had
their hands full as they were dealing with a very aggressive person.  They continued
to try to calm him down but he was being uncooperative.  The interaction was
escalating.

[103]     Mr. Dhillon
formed the opinion that the uncooperative individual was intoxicated because he
was being aggressive, using language like "fuck this" and "fuck
that", and not speaking clearly.  Mr. Dhillon was thinking to
himself, "Ara [Cst. Pehlivanian’s first name] when are you going to
step in?"  He overheard Cst. Pehlivanian telling the aggressive
person to "calm down".

[104]     He
testified this person started throwing some wild and off-balance punches, one
of which hit one of the security guards.

[105]     It was at
this point, several minutes after he arrived on the scene, that
Cst. Pehlivanian stepped in.  With the assistance of security personnel,
Cst. Pehlivanian approached the aggressive person from the front, put his
arms around him, and pulled him down onto his stomach.

[106]     After this
person was put on the ground, Cst. Pehlivanian and the security guards
were trying to get his arms out from under him.  He overheard Cst. Pehlivanian
saying, "Let your arms go".  The struggle continued.  He did not see
any strikes delivered by Cst. Pehlivanian.  Eventually, they got the
person’s hands out from under him, and he was handcuffed.

[107]     Mr. Dhillon
did not see the aggressive person voluntarily get on the ground in a
spread-eagle position.  Mr. Dhillon did not see Cst. Pehlivanian, or
any of the security guards, punch or kick the aggressive person in the face. 
The only punches he saw were thrown by the aggressive person.

[108]     Mr. Dhillon
did not see the aggressive person lose consciousness.

[109]     After
being handcuffed, the aggressive person continued to be angry and upset.  He
was using the same profane language.  Mr. Dhillon saw no police officers
other than Cst. Pehlivanian at the scene.  He left after the person had
been handcuffed.  He did not see any injuries to this person.

[110]     Mr. Dhillon
testified that a few days after the event, he phoned Cst. Pehlivanian on
his cell phone (Mr. Dhillon had Cst. Pehlivanian’s cell phone number
from the police academy course) and joked that if Cst. Pehlivanian did not
step in when he did, Mr. Dhillon was going to have to do so.  He said the
two of them discussed what happened and how it ended, but that they have not
discussed it since.  Mr. Dhillon testified that Cst. Pehlivanian
never discussed the lawsuit or OPCC complaint with him.

[111]     In 2011, Mr. Dhillon
invited Cst. Pehlivanian to his box at GM Place to watch a hockey game. 
He did this as a courtesy and as a way of thanking Cst. Pehlivanian for
putting on the course.  Mr. Dhillon also asked to do a foot patrol with
Cst. Pehlivanian in 2012, and a ride-along with him in 2013.

[112]     In
cross-examination, Mr. Dhillon agreed that some areas of his memory had
likely faded since 2010, but the incident was not a regular occurrence for him
and some parts of it stood out quite clearly in his mind.

(e)      Susan
Macpherson

[113]     Susan
Macpherson was called by the defendants.  She recently retired from the
Vancouver Police Department after a 25-year career.  When she retired, she was
one of two sergeants in charge of the Vancouver Jail at 265 East Cordova Street
in Vancouver.  Ms. Macpherson was responsible for overseeing the intake
and assessment of arrestees, including individuals detained under the HSIPP
policy.  She testified that 10-15 people per day were transported to the jail
under the HSIPP policy.  Intoxicated detainees are housed in jail when they are
unable to care for themselves, and have exhibited some sort of violent
conduct.  When individuals brought to the jail under this policy are determined
be intoxicated but not violent, they are taken to a nearby detox facility. 
Ms. Macpherson noted that it is a serious matter to deprive an individual
of his or her liberty for even a short period by confining them in a jail.

[114]     Although
she has no recollection of the plaintiff, Ms. Macpherson testified that he
would have been assessed and adjudged to meet the criteria for a HSIPP.  She
acknowledged, in this regard, that reliance would have been placed on the
circumstances of the arrest as reflected in the Arrest Report.

[115]     Upon
admission, individuals held under the HSIPP policy have their personal effects
cataloged and placed in a bag.  They are then taken to a pre-hold area large
enough to accommodate several detainees.  Ms. Macpherson acknowledged that
this area is often dirty.  While in pre-hold, a detainee’s handcuffs remain in
place.

[116]     HSIPP
detainees are then taken by two security guards from pre-hold to a room where
they are searched and assessed for injuries and complaints.  The detainee’s
handcuffs are removed in the search room unless they are too violent for this
to be done safely.  The detainee is then lodged in a cell.

[117]     The
Prisoner Observation Log relating to the plaintiff’s stay at the Vancouver Jail
reflects that he complained of numbness in his left arm during the search. 
Detainees who express a need for medical attention are seen by a nurse.  There
is no indication that the plaintiff asked for medical attention during his stay
in the jail.  The log reveals that the plaintiff was checked every 15 minutes,
including on three occasions by a nurse doing regular rounds.

[118]     Ms. Macpherson
testified that it is highly unlikely the plaintiff would have remained in
handcuffs for the duration of his stay.  Had the handcuffs remained on, one of
the two sergeants on duty would have been notified of this and it would have
been recorded in both the Sergeant’s Log and the Prisoner Observation Log. 
There is no record of the plaintiff being restrained in handcuffs throughout
his detention.  As there is no indication that the plaintiff behaved violently
while in jail, Ms. Macpherson testified he would not have remained in
handcuffs.  She noted the damage handcuffs can do to individual’s wrists and
said it would be inhumane to keep a non-violent HSIPP detainee in handcuffs
until they were sober enough to release.

C.       Factual Findings

[119]     The events
giving rise to this action occurred more than five years ago.  It is not
surprising that memories have faded or that the recollections of the main
witnesses to the altercation vary on some non-material points.  In assessing
the credibility of the main witnesses, and the reliability of their testimony,
including that given by the plaintiff, it is necessary to make allowance for
the impact the passage of time has had on memory.

[120]     But even
making these allowances, the plaintiff was not a credible witness and his
version of events is, by any measure, unreliable.  I have come to this
conclusion for a variety of reasons, including:

·      
The plaintiff’s version of events is inconsistent with and
contradicted by the generally consistent version of events related by Cst. Pehlivanian,
Cecilia Araya-Diaz and Peter Dhillon;

·      
It is apparent from the evidence adduced at trial that the
plaintiff was intoxicated at the time of the incident. This finding is
supported not only by the evidence of Cst. Pehlivanian,
Ms. Araya-Diaz, Mr. Dhillon and Ms. Macpherson, but by the
plaintiff’s behaviour that evening.  It is noteworthy that after being arrested
in a physical takedown, injured, handcuffed, ejected from GM Place and placed
in a paddy wagon, the plaintiff was, on his own account, still hopeful of being
re-admitted to the arena to watch the remainder of the game.  In addition, it
is noteworthy that at 11:35 p.m., just before his release from jail, the
plaintiff, on his own account, told a jail attendant that he wanted to be released
to watch the Canucks game.  He had to be told the game was long over.  That the
plaintiff would behave in such an irrational way underscores the evidence of
the witnesses called by the defendants, all of whom testified that the
plaintiff appeared to be intoxicated at the time of the incident;

·      
The extent to which the plaintiff was intoxicated at the time
of the incident has affected his ability to recall events. The plaintiff
was uncertain in his evidence about the number of security guards he dealt with. 
He has given inconsistent accounts on this point.  He initially said he recalls
dealing with only one security officer.  This evidence is inconsistent with all
the other evidence and is clearly wrong.  In addition, the plaintiff claims
that another police officer escorted him out of the building.  There is no
evidence to support a finding that he was dealt with inside the arena by any
police officer other than Cst. Pehlivanian;

·      
The plaintiff’s claim that he lost consciousness is
inconsistent with the evidence of the other witnesses to the incident, and
inconsistent with what he told the admitting nurse at the Richmond General
Hospital the morning after the incident.  I reject the plaintiff’s evidence
on this point.  His testimony can only be explained by intoxication or
untruthfulness;

·      
The plaintiff’s contention that he was, without justification,
attacked by Cst. Pehlivanian from behind, punched and gratuitously kicked
in the head as he lay on the concrete landing in full view of a number of
witnesses to the incident is improbable and I reject it.  It is also a
version of events unsupported by any of the other witnesses who testified at
trial;

·      
The plaintiff’s contention that he did not strike
Ms. Araya-Diaz is contradicted by the evidence of the three other
witnesses to the incident and I reject it. Once again, the plaintiff’s
evidence on this point can only be explained by intoxication or untruthfulness;

·      
The plaintiff’s version of events does not account for the
significant bruising on his upper left arm, which was clearly caused by the
knee strike delivered by Cst. Pehlivanian;

·      
The plaintiff’s evidence on other points was self-serving and
demonstrated a willingness on his part to shade the truth when it served his
interests. For example, the plaintiff’s evidence that he instructed his
server to discard what was left in the cans of the three beers he ordered after
his glass was filled lacks the ring of truth and I reject it.  Further, I am
satisfied the plaintiff’s evidence that money was taken from his belongings
between his arrest and release from jail is something he concocted at trial to
avoid an inference being drawn that a considerable amount of money was spent by
him that evening on alcohol.  The plaintiff did not, on any earlier occasion,
complain that money was stolen from him, including when he submitted his
complaint to the OPCC and when he testified on examination for discovery.  I
reject the plaintiff’s evidence on this point.  Similarly, I reject the
plaintiff’s evidence that he remained in handcuffs during the duration of his
stay at the Vancouver Jail.  I was most impressed with the evidence of Susan
Macpherson and accept her testimony that the plaintiff, a non-violent detainee
on arrival at the Vancouver Jail, would not have remained in handcuffs for the
duration of his confinement.  Finally, the plaintiff has related inconsistent
versions of events about whether he was taken to the ground or voluntarily
spread-eagled himself on the floor.  I am satisfied that he conveyed
information to health care providers (his family physician and physiatrist)
that he was tackled and taken to the ground – a version of events inconsistent
with his trial testimony.  In light of this evidence, it is difficult to view
the plaintiff’s testimony that he voluntarily spread-eagled himself on the
floor as anything other than a self-serving account that was related to the
Court in an effort to put himself in the best possible light.

[121]     I am
mindful of the inconsistencies in the evidence of Cst. Pehlivanian, some
of which are highlighted in the summary of his evidence, including:  his
failure to submit a Use of Force report as required by policy; his potential
motivation for doing so; and his occasional defensiveness in the manner in
which he gave his testimony.  I have reflected on his testimony with these
considerations in mind.  Having assessed these issues in a cumulative way, I am
nevertheless satisfied that, on all material points, Cst. Pehlivanian gave
credible and reliable evidence.  I accept his version of events.  As noted
earlier, his evidence is generally confirmed by the testimony given by
Ms. Araya-Diaz and Mr. Dhillon.

[122]     In
addition, I am mindful of inconsistencies between the evidence of
Cst. Pehlivanian and the evidence given by Ms. Araya-Diaz and Mr. Dhillon. 
Some of these inconsistencies are potentially significant in that they are
capable of grounding a conclusion that Ms. Araya-Diaz and Mr. Dhillon
were motivated to give evidence helpful to Cst. Pehlivanian.

[123]     Although
Ms. Araya-Diaz and Mr. Dhillon are, perhaps, not independent
witnesses in the classic sense, both gave their evidence in a straightforward
and credible fashion.  I am satisfied that Ms. Araya-Diaz and Mr. 
Dhillon provided truthful evidence of their recollections of the incident,
unimpaired by any personal or professional allegiance they may have felt
towards Cst. Pehlivanian.  Making allowance for the passage of time, the
speed at which events occurred, and the different opportunities they had to
observe what happened, I consider the evidence of both to be honest and
reliable on the essential points and I accept it.

[124]     In
summary, I make the following factual findings with respect to this incident.

[125]     The
plaintiff was intoxicated at the time of his encounter with the security guards
and Cst. Pehlivanian.  He was likely smoking in the stairwell.

[126]     The
encounter occurred on a fairly small landing area in the stairwell.  I accept
Cst. Pehlivanian’s evidence that there were a number of stairs leading
from the landing to the ground floor below.

[127]     The
plaintiff was verbally aggressive and then became physically aggressive when
his ticket was taken and the security guards attempted to eject him from the
arena.  Ms. Araya-Diaz told the plaintiff he was required to leave the
arena because he was, in her words, "over-intoxicated".

[128]     The
plaintiff resisted efforts to escort him from the venue.  He was instructed by
both the security guards and Cst. Pehlivanian to stop resisting and calm
down.

[129]     He
proceeded to strike Ms. Araya-Diaz in the shoulder with sufficient force to
hurt her and knock her backwards.  I do not accept the submission advanced on
the plaintiff’s behalf that the assault he committed on Ms. Aryar-Diaz was
"extremely minor", "trifling" or "de minimis". 
He is fortunate not to have been charged with assault as a result of his
behaviour.

[130]     Cst. Pehlivanian
immediately intervened, identified a place on the landing where the plaintiff
could safely be taken down and, with the assistance of a security guard, took
the plaintiff to the ground.

[131]     Cst. Pehlivanian
used considerable force in bringing the plaintiff to the ground, but did not
intend to injure him.  The takedown likely caused the plaintiff’s facial
injuries.

[132]     Once on
his stomach on the landing, the plaintiff "turtled" and refused to
offer up his hands for handcuffing despite being directed to do so by
Cst. Pehlivanian.  Cst. Pehlivanian and the security guards were
unable to pull the plaintiff’s hands out from under his body as a consequence
of the plaintiff’s ongoing resistance.  It is likely the plaintiff suffered the
bruising to his back and ribs noted by his family physician in this tussle.

[133]     Faced with
the plaintiff’s non-compliance, Cst. Pehlivanian delivered a single knee
strike to the plaintiff’s upper left arm.  He did so to inflict a measure of pain
designed to make the plaintiff comply, and to create a motor dysfunction that
would weaken the plaintiff’s arm and assist him in gaining control of the
plaintiff’s hands for handcuffing purposes.  Although Cst. Pehlivanian did
not intend to inflict serious injury upon the plaintiff, the knee strike likely
caused the displaced fracture of the humeral head.  I do not regard this
factual finding as being inconsistent with the evidence of the plaintiff’s
physiatrist that his shoulder injury was caused by the fall.  The physiatrist
was not aware that a knee strike had been delivered and it is understandable,
in this context, that he would attribute the injury to the only use of force
revealed to him by the plaintiff.  Further, it is most unlikely, if the plaintiff
suffered the fracture in the fall, that he would have been able to resist with
the force he used to prevent the removal of his arms and hands from under his
body when he was on his stomach.

[134]     The
plaintiff did not lose consciousness during the incident.

[135]     The
plaintiff was never shoved from behind, punched or kicked in the head by Cst. Pehlivanian,
or anyone else.

[136]     The
plaintiff was detained pursuant to the HSIPP policy because he was intoxicated
and had exhibited violence.  He was held at the Vancouver Jail until he was
considered to be sufficiently sober to look after himself.  The plaintiff was
not restrained by handcuffs for the duration of his 3 ½-hour stay at the
Vancouver Jail.

D.       Analysis of the
Issues

(a)      Should an adverse inference be drawn from the
failure of the defendants to call the other GM Place security guards as
witnesses at trial?

[137]     The
plaintiff suggests an adverse inference should be drawn against the defendants
as a consequence of their failure to call as witnesses at trial the other security
guards involved in the incident.  In support of his position, the plaintiff
cites: Buksh v. Miles, 2008 BCCA 318 at para. 31, for the
proposition that an adverse inference may be drawn against a litigant if,
without sufficient explanation, that litigant fails to call a witness who might
be expected to give supporting evidence; and, R. v. Jolivet, 2000 SCC 29
at para. 27, for the proposition that where a party has particular access
to a witness, the basis for drawing an adverse inference may be stronger.

[138]     This is
not an appropriate case to draw an adverse inference against the defendants.

[139]     First, I
am satisfied that the failure to call the other security guards involved in the
incident has been explained.  Counsel for the defendants was able to secure from
GM Place Security statements given by two other security guards.  Unsuccessful
efforts were made by the defendants to find them.  I accept the submission of
counsel for the defendants that the other security guards were not called at
trial because they could not be located.

[140]     Second, it
was open to the plaintiff to take the same steps available to the defendants to
obtain the statements of the other security guards and attempt to locate them
prior to trial.  If necessary, the plaintiff could have made an application to
court for the disclosure of information in the possession of GM Place Security
if he encountered resistance to the disclosure of that information.  The point
is this:  the security guards in question are neither City of Vancouver nor
police employees and the defendants had no peculiar means of access to them or
their statements, and no knowledge as to their whereabouts.

[141]     Third, the
two statements prepared by the security guards and obtained by counsel for the
defendants were disclosed to the plaintiff’s counsel at the conclusion of the
trial.  I invited counsel for the plaintiff to make application for any remedy
he considered appropriate as a result of this information coming to his
attention late in the day, and gave him a reasonable period following the trial
to do so.  No application for any remedy has been made on the plaintiff’s
behalf.

[142]     In all the
circumstances, I consider this to be an inappropriate case in which to draw an
adverse inference against the defendants.

(b)      The
Framework for the Arrest and Use of Force Analysis

[143]     The
parties are in substantial agreement about the analytical framework that should
govern resolution of the central issues at trial.  They disagree, however,
about the conclusions that should be drawn by the Court from the application of
that framework.  Given that the parties are in substantial agreement about the
applicable framework, I will only attempt to distill what I consider to be the
governing principles.

[144]     Police
officers are regularly required to use force on individuals without their
consent to do something they are required or authorized by law to do, including
effecting arrests.  To enable police officers to perform this task without
incurring civil liability, s. 25 of the Criminal Code justifies the
use of necessary force that is reasonable and proportionate in the
circumstances: Puricelli v. Toronto Police Services Board, 2014 ONSC
6861 (Ont. Div. Ct.) at para. 17.

[145]     As
explained in Chartier v. Greaves, [2001] O.J. No. 634 (S.C.)
at para. 64, s. 25(1) absolves from blame anyone who does something
that he is required or authorized by law to do, and it empowers such a person
to use as much force as is necessary for the purpose of doing it.

[146]    
Section 25 of the Criminal Code states:

Protection of persons acting under authority

25. (1) Every one
who is required or authorized by law to do anything in the administration or
enforcement of the law…

(b) as a peace
officer or public officer,

is, if he acts on
reasonable grounds, justified in doing what he is required or authorized to do
and in using as much force as is necessary for that purpose.

[147]     The onus
on a plea of justification in the use of force lies on the party who asserts
it: Chartier at para. 64.  To bring themselves within the
justification contemplated by s. 25, the defendants must prove on a
balance of probabilities that:

·      
Cst. Pehlivanian was required or authorized by law to do
something in the administration or enforcement of the law;

·      
He acted on reasonable grounds in doing that which he was
required or authorized to do; and

·      
In doing that which he was required or authorized to do, he used
only as much force as was necessary for that purpose:  see Wilsdon v. Durham
(Regional Municipality) Police, 2011 ONSC 3419 at paras. 68-69.

[148]    
In Nasogaluak, the Supreme Court of Canada considered the purpose
and scope of s. 25(1) in these terms:

32.       …police officers do not have an unlimited power to
inflict harm on a person in the course of their duties.  While, at times, the
police may have to resort to force in order to complete an arrest or prevent an
offender from escaping police custody, the allowable degree of force to be used
remains constrained by the principles of proportionality, necessity and
reasonableness.  Courts must guard against the illegitimate use of power by the
police against members of our society, given its grave consequences.

33.       The legal constraints on a police officer’s use of
force are deeply rooted in our common law tradition and are enshrined in the Criminal
Code [s. 25]

34.       Section 25(1) essentially provides that a police
officer is justified in using force to effect a lawful arrest, provided that he
or she acted on reasonable and probable grounds and used only as much force as
was necessary in the circumstances.  That is not the end of the matter.  Section
25(3) also prohibits a police officer from using a greater degree of force, i.e.
that which is intended or likely to cause death or grievous bodily harm, unless
he or she believes that it is necessary to protect him- or herself, or another
person under his or her protection, from death or grievous bodily harm.  The
officer’s belief must be objectively reasonable.  This means that the use of
force under s. 25(3) is to be judged on a subjective-objective basis (Chartier
v. Greaves, [2001] O.J.
No. 634 (QL) (S.C.J.), at para. 59).  If force of that
degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then
it is justified under s. 25(4), subject to the limitations described above
and to the requirement that the flight could not reasonably have been prevented
in a less violent manner.

35.       Police actions should not be judged against a
standard of perfection.  It must be remembered that the police engage in
dangerous and demanding work and often have to react quickly to emergencies.  Their
actions should be judged in light of these exigent circumstances.  As Anderson
J.A. explained in R. v. Bottrell (1981), 60
C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer
was necessary the jury must have regard to the circumstances as they existed at
the time the force was used.  They should have been directed that the appellant
could not be expected to measure the force used with exactitude.  [p. 218]

[149]     Under
s. 25 of the Code, a police officer is justified in using as much
force as is necessary to do that which the law authorizes or requires him to
do.  If that police officer uses more force than is necessary, his conduct is
not justified and liability will ensue.

[150]     As noted
in Bottrell, however, allowance must be made for an officer who, in the
exigencies of the moment, misjudges the degree of force necessary to make a
lawful arrest:  see also Chartier at para. 64.  Police officers
authorized or required by law to make an arrest are not required to use the
least amount of force that might achieve the intended objective.  Imposing such
an obligation would be both unreasonable and unrealistic.  Police officers are
justified and exempt from liability if they use no more force than is
necessary, having regard to their reasonably held assessment of the
circumstances: Chartier at para. 64; Crampton v. Walton,
2005 ABCA 81 at para. 45.

[151]     Some care
must be taken to ensure that assessment of the necessity and proportionality of
the officer’s conduct occurs within the framework of the officer’s reasonable
assessment of the circumstances as they existed at the time, not through the
lens of hindsight: R. v. Cornell, 2010 SCC 31 at para. 24; R.
v. Alexson, 2015 MBCA 5 at para. 20; Crampton at para. 45;
Berntt v. Vanouver (City), 1999 BCCA 345 at paras. 17, 24, 34-36
(per Southin J.A.) and para. 53 (per McEachern C.J.B.C., concurring in the
result).

[152]     The police
are entitled to be wrong, but they must act reasonably: Crampton at
para. 22.

[153]     It is an
accepted proposition of law that a range of reasonable use of force responses
exists in a given set of circumstances: R. v. DaCosta, 2015 ONSC 586
per Hill J. at para. 103; R. v. MacKay, 2012 ONCA 671 at
paras. 25-28.

[154]     Further,
as the plaintiff noted in his written submissions, s. 25 requires the
Court to engage in a modified objective test.  The officer must subjectively
believe that the force used was necessary, and that belief must be objectively
reasonable in all the circumstances.

[155]     Finally,
the fact of an injury does not necessarily lead to a conclusion that the force
used was excessive: Berntt at para. 27.  Injuries sustained by an
arrestee may, however, illuminate the degree of force used and, in turn, inform
assessment of whether more force than was necessary was used in the
circumstances: Nasogaluak at para. 37.

(c)      Did
Cst. Pehlivanian have lawful authority to arrest the plaintiff?

[156]     The
plaintiff argues that Cst. Pehlivanian had no grounds in law to arrest
him.  The plaintiff’s submission on this point is based entirely on his version
of events – a version of events I have rejected.

[157]     On the
factual findings made, there can be no doubt Cst. Pehlivanian was authorized
under s. 495 of the Code to arrest the plaintiff, having observed
him commit the offence of assault.

[158]     The arrest
was also justified under s. 41(2) of the LCLA. 
Cst. Pehlivanian formed the opinion, and reasonably so, that the plaintiff
was intoxicated to such a marked degree that he constituted a danger to others.
The plaintiff’s behaviour, culminating in his assault of Ms. Araya-Diaz,
made him arrestable under s. 41(2) of the LCLA and the principles
set out in Beese v. Thom, [1979] B.C.J. No. 2082 (Co. Ct.), rev’d
on other grounds [1979] B.C.J. No. 2100 (B.C.C.A.).

(d)      Was Cst. Pehlivanian reasonably
justified in using force to arrest the plaintiff?

[159]     On the
facts as I have found them, there can be no doubt Cst. Pehlivanian had
reasonable grounds to believe force would be necessary in order to achieve the
plaintiff’s arrest.  The plaintiff was non-compliant with
Cst. Pehlivanian’s verbal direction to calm down and stop waving his arms
around.  Cst. Pehlivanian believed, on reasonable grounds, that the
plaintiff was intoxicated.  The plaintiff was acting aggressively. 
Cst. Pehlivanian observed the plaintiff’s behaviour escalate to the point
where he assaulted Ms. Araya-Diaz.  In these circumstances,
Cst. Pehlivanian concluded, and reasonably so, that he was obliged to
immediately intervene, and that it was necessary for him take hold of the
plaintiff’s person to bring him under control and effect his arrest.  The
reasonableness of Cst. Pehlivanian’s decision to use force to arrest the
plaintiff is confirmed by the evidence of Ms. Araya-Diaz and Mr. Dhillon,
who wondered to himself as he watched the incident when Cst. Pehlivanian
was going to intervene and bring the plaintiff under control.

(e)      Did
Cst. Pehlivanian use only as much force as was necessary to arrest the
plaintiff?

[160]     On the
facts as I have found them, the only real issue that arises for determination
is whether the degree of force used by Cst. Pehlivanian to arrest the
plaintiff has been shown by the defendants to be justified under s. 25 of
the Code.

[161]     To arrest
the plaintiff and bring him under control, Cst. Pehlivanian used force
when he:  (1) intervened immediately after the plaintiff assaulted
Ms. Araya-Diaz, put his arms around the plaintiff and forced him onto his
stomach on the landing of the stairway; and (2) delivered the knee strike to
the plaintiff’s upper left arm to free up the plaintiff’s hands so he could be
handcuffed.  The plaintiff submits that both the takedown and knee strike
reflect an unnecessary, unreasonable and disproportionate use of force that cannot
be justified under s. 25 of the Code.

[162]     I will
deal with each application of force separately.

(1)      Taking
the plaintiff to the ground on the landing

[163]     Cst. Pehlivanian
testified that he believed the force he used in taking the plaintiff to the
ground was not excessive having regard to all the circumstances, including the
violence demonstrated by the plaintiff.  Further, if the incident continued to
escalate, there was the potential for someone to be injured in a further
assault committed by the plaintiff, or as a consequence of being knocked down
the adjacent stairs in an ensuing tussle.

[164]     In my
view, Cst. Pehlivanian had reasonable grounds for this belief and the
force he used was necessary, reasonable and proportionate given the risk posed
by the plaintiff and the physical space in which the events occurred.

[165]     I do not
accept the plaintiff’s position that he was given no verbal direction to stop
what he was doing and calm down before force was applied.  I accept
Cst. Pehlivanian’s evidence that he made eye contact with the plaintiff
and directed him to stop waving his arms around and calm down.  Further, I do
not accept the plaintiff’s alternative position that he was given an inadequate
opportunity to comply with any verbal direction that might have been given to
him by Cst. Pehlivanian.  The plaintiff had ample opportunity to comply
with the direction Cst. Pehlivanian gave him, but chose to escalate his
behaviour and assault a much smaller female security guard.

[166]     In light
of the plaintiff’s demonstrated willingness to use violence, it was not only
reasonable for Cst. Pehlivanian to take steps to ensure the plaintiff was
immobilized – it was incumbent upon him to do so.

[167]     In the
confined space in which he was operating, and given the risk that someone else
would be assaulted or knocked down the stairs if the tussle was allowed to play
itself out, it was not unreasonable for Cst. Pehlivanian to take hold of
the plaintiff immediately after he assaulted Ms. Araya-Diaz, identify an
area on the landing where he could safely be taken down, and proceed to do so. 
Even in hindsight, I do not see that any less aggressive intervention was
reasonably open to Cst. Pehlivanian in the circumstances.

[168]     That the
plaintiff suffered facial abrasions in the takedown is unfortunate but inevitable
given the plaintiff’s state of intoxication, the need for him to be quickly
immobilized, and the fact that he was being taken down face first on a concrete
landing.  I accept Cst. Pehlivanian’s evidence that it was not his
intention to injure the plaintiff in the takedown, but to take control of him
to ensure that he did not assault or injure anyone else.

(2)      The
knee strike

[169]     The
plaintiff submits that once he was on the ground, there was no justification
for the knee strike Cst. Pehlivanian delivered to his upper left arm.

[170]     In support
of this position, the plaintiff submits that:  by the time he was on the ground
he was surrounded by Cst. Pehlivanian and the security guards and did not
reasonably pose a threat to others; the defendants have advanced no reasonable
explanation why Cst. Pehlivanian resorted to the hard technique of a knee
strike, or "why a ‘soft’ technique, such as a wrist or arm lock was not
suitable".

[171]     In
addition, the plaintiff submits, and I agree, that the nature and extent of the
injury caused by the knee strike is one measure of its reasonableness.

[172]     Finally,
the plaintiff submits that the defendants’ own use of force training encourages
a disproportionate use of force by counselling officers to follow the "one
+ one" rule; in other words, to respond one level higher than the
resistance demonstrated by a non-compliant or combative subject.  The plaintiff
submits that this rule appears to be intended to protect police officers from
unspecified threats at the expense of citizens in the plaintiff’s position.  In
any event, he submits that while the rule may be appropriate where the
subject’s behaviour is toward the more violent end of the spectrum, it is not a
rule that ought to have guided Cst. Pehlivanian’s response in the
circumstances of this case.

[173]     The
plaintiff notes other contexts in which use of force justifications have been
rejected where body blows have been delivered to assist in applying handcuffs.  He
relies on Nasogaluak at paras. 32-37; Crampton at para. 48;
and Breland v. Edmonton (City) Police Service, 2005 ABQB 903 at
para. 48.

[174]     While all
three cases are instructive, each turns on its own unique set of facts and it
is difficult to extract from the way in which these cases were resolved
principles of broad application.  Having said this, I will make the following
distinguishing observations about these three cases.

[175]     In Nasogaluak,
an intoxicated subject resisted being arrested by clutching onto the steering
wheel and doorframe of his vehicle.  As there was a risk the subject would put
the vehicle in motion and drive away causing injury to the arresting officers,
the trial judge found that the first two punches that the officers delivered to
the subject’s head reflected a reasonable use of force, as it was necessary to
remove him from the vehicle.  Once the subject had been removed from the
vehicle and was pinned to the ground, one of the officers delivered a third
punch to his head, while the other officer punched him twice in the back with
sufficient force to break his ribs and puncture one of his lungs.  The latter
three blows were delivered to overcome the subject’s resistance to being
handcuffed.  The trial judge found the latter three blows to be an excessive
use of force not justified by s. 25.

[176]     There are
important differences between Nasogaluak and the case at bar.  Mr. Nasogaluak
resisted being handcuffed, but had not otherwise assaulted the arresting
officers.  Mr. Nasogaluak was struck by the officers on three occasions to
overcome his resistance to being handcuffed.  One of the offending blows was
delivered to Mr. Nasogaluak’s head.  Finally, one of the officers
testified he did not think the third punch delivered by his colleague was
necessary.  By contrast, the plaintiff in the case at bar had already
demonstrated his capacity for assaultive behaviour.  Further, he was made the
subject of a single knee strike, not to the head but to the upper arm.  In
addition, there is no evidence, as there appears to have been in Nasogaluak,
that the blow delivered by Cst. Pehlivanian was gratuitous.

[177]     In Crampton,
significant force was applied to a subject who was neither resistant nor
combative, but was attempting to comply with an officer’s direction to get on
the floor.

[178]     In Breland,
the subject was pinned to the ground in a half-nelson by one officer but
continued to flail about and resist being handcuffed.  While pinned to the
ground, he was struck by another officer multiple times in the head with an
open hand and in the ribs with repeated knee strikes.  The blows to the head
and ribs were delivered "with everything [the officer] had".  The
subject was struck so many times that the officer was unable to even estimate
the number of blows he delivered.  The trial judge found it impossible to
accept that it was necessary for the officer "to administer an unknown
number of stuns in order to control and handcuff the plaintiff".

[179]     In the
case at bar, the plaintiff had already assaulted one person with his hands.  After
being taken to the ground, he buried his arms and hands under his body and
refused to offer up his hands for handcuffing.  With the assistance of security
guards, Cst. Pehlivanian tried but was unable to overcome the plaintiff’s
resistance and pull his arms out from under his body.  I am satisfied the
plaintiff was given ample opportunity to comply with a verbal direction to stop
resisting his arrest before the single knee strike was delivered.  The strike
was not directed at the plaintiff’s head, but at his arm.  It was not gratuitous.
It was delivered to stun the plaintiff and create a motor dysfunction
sufficient to overcome the plaintiff’s resistance to the arrest.  Regrettably,
that single knee strike likely caused the plaintiff a significant shoulder
injury.

[180]     I turn
next to consider the merits of the plaintiff’s various other contentions.

[181]     I cannot
agree with the position advanced on the plaintiff’s behalf that, once he was on
the ground, he was under control and did not pose a threat to others.  So long
as the plaintiff’s arms were unrestrained and he continued to resist, he was
not under control and it was reasonable for Cst. Pehlivanian to conclude,
as he did, that until handcuffs had been applied to him, the plaintiff
represented a continuing risk to others.

[182]     Further, I
cannot accept the submission advanced on the plaintiff’s behalf that the
defendants’ failed to advance any explanation for why a soft control technique
such as a wrist or arm lock could not have been employed as a more suitable and
less dangerous tactic than a knee strike.  The simple answer to the plaintiff’s
submission is that the types of soft control techniques he says ought to have
been utilized were unavailable to Cst. Pehlivanian.  The plaintiff, by his
own actions, reduced the use of force options available to
Cst. Pehlivanian by "turtling" and continuing to resist after he
had been taken to the ground.

[183]     Finally, I
cannot accept the plaintiff’s position that a policy counselling a responsive
use of force sufficient to overcome the level of resistance displayed by a
non-compliant or combative subject thereby advocates a disproportionate use of
force.  The purpose for which force is used is not to battle a combative
subject to a stalemate, but to overcome that subject’s level of resistance or
aggressiveness, bring the subject under control, and eliminate the risk he
poses to himself or others. This can only be accomplished by an application of
force that exceeds the level of force used by the subject.  A use of force
policy that counsels the application of a "one + one" rule is
consistent with s. 25 in that it authorizes only so much force as is
necessary to overcome the subject’s resistance and no more.

[184]     I am
satisfied that Cst. Pehlivanian’s decision to deliver a single knee strike
to the plaintiff’s upper arm was a reasonable, necessary and proportionate use
of force in the circumstances.  The plaintiff was not complying with verbal
commands to give up his hands for handcuffing.  Cst. Pehlivanian tried but
was unable to overcome the plaintiff’s resistance and pull his arms out from
under his body.  It was reasonable and necessary for Cst. Pehlivanian in
the circumstances to use force to promote either a pain-related compliance with
his direction that the plaintiff give up his hands for handcuffing, or a motor
dysfunction sufficient to overcome the plaintiff’s resistance.  Even in
hindsight, it strikes me that Cst. Pehlivanian’s only other option in the
circumstances was to continue holding the plaintiff to the ground and wait
until the plaintiff, who was intoxicated and belligerent, decided it was time
to comply with the officer’s direction and co-operate in his lawful arrest.

[185]     Further,
there is no evidence that Cst. Pehlivanian delivered the knee strike with
all the force at his command (as in Breland).  Although, in hindsight,
it might have been possible to secure the plaintiff’s compliance with a
somewhat less forceful blow, that is speculation.  Given the plaintiff’s
aggressive and irrational behaviour, and his resolve to continue resisting his
arrest with considerable force, it is equally plausible that such an approach
would have led to the administration of a number of increasingly forceful
blows.  More to the point, this kind of hindsight analysis is unfaithful to the
governing law and fails to accord any latitude to Cst. Pehlivanian in
dealing with an intoxicated and aggressive subject.

[186]     For these
reasons, I find that the knee strike has been shown by the defendants to have
been a justified use of force under s. 25 of the Code.

(f)       Is
the plaintiff entitled to Charter damages?

[187]     The
plaintiff was not subjected to excessive force nor was he arbitrarily
detained.  No breach of ss. 7 or 9 of the Charter has been made
out.  The plaintiff’s claim for Charter damages must therefore be
dismissed.

[188]     Before
leaving this point, I would like to address one additional aspect of the
plaintiff’s position in relation to his claim for Charter damages for
arbitrary detention pursuant to s. 9.

[189]     Relying on
R. v. Calderon (2004), 23 C.R. (6th) 1 (Ont. C.A.) the plaintiff argued
in closing submissions that Cst. Pehlivanian’s failure to extend to him
the informational component of the right to counsel under s. 10(b) of the Charter
rendered his detention arbitrary under s. 9.

[190]     While I do
not wish to be taken as endorsing the proposition that an infringement of
s. 10(b) makes a detention arbitrary for constitutional purposes, it is
unnecessary for me to address this prong of the plaintiff’s submission in any
detail.  It is clear that the plaintiff’s argument on this point is rooted in
an alleged s. 10(b) violation.  The plaintiff did not plead s. 10(b)
in his original or Amended Notice of Civil Claim.  In these circumstances, it
would be unfair to the defendants to address a constitutional argument that has
its roots in an alleged infringement neither pleaded nor fully explored in the
evidence.

(g)      The plaintiff’s claim against Cst. Pehlivanian
pursuant to s. 21 of the Police Act, R.S.B.C. 1996 c. 367

[191]     In his Amended
Notice, the plaintiff claims that Cst. Pehlivanian should be found
personally liable under s. 21 of the Police Act because his conduct
has been shown to be grossly negligent, or otherwise reflect malicious or wilful
misconduct.  Counsel for the plaintiff abandoned the negligence claim in his
closing submissions.  On the facts I have found, Cst. Pehlivanian has not
been shown to be guilty of any malicious or wilful misconduct.  The plaintiff’s
claim in this regard is, accordingly, also dismissed.

E.       Costs

[192]     Subject to
the further submissions of counsel, the defendants shall have their costs at
Scale B.

"FITCH J."