NATURE OF THE APPLICATION

[1]         This is an application by the Defendants, Sergeant Kelly (“Kelly”), Constable Prasobsin (“Prasobsin”), Constable Fodor (“Fodor”), Sergeant Gatto (“Gatto”), and Constable Cope (“Cope”) (collectively the “Police Defendants”) pursuant to Rule 19(24)(a) for an Order striking out the Plaintiff’s Amended Statement of Claim as against the Police Defendants on the ground that it discloses no reasonable claim and dismissing the claim against them.

[2]         The Police Defendants claim that no reasonable claim is disclosed because, at all material times, they were acting in the performance of their duties as police officers and therefore, the claim against them personally is statute barred by s. 21 of the Police Act, R.S.B.C. 1996, c. 367.

[3]         For the reasons stated below I find that the Police Defendants cannot rely on s. 21 of the Police Act and as such their application must fail.

BACKGROUND

[4]         The Plaintiff’s action arises out of events that took place on August 1, 2002, at which time the Plaintiff alleges that he was stopped and then arrested by members of the Vancouver Police Department (the “VPD”) during an official visit to Vancouver by the Right Honourable Jean Chretien, the Prime Minister of Canada.

[5]         The Plaintiff, Alan Cameron Ward, is a lawyer who has practised law in or about the City of Vancouver since 1984.  He has practised mainly in the areas of civil litigation and administrative law and has represented numerous people who have made complaints against members of the VPD and members of the Royal Canadian Mounted Police (the “RCMP”).  Several of the Plaintiff’s cases, including a public hearing into complaints about RCMP conduct at APEC ’97 and a public hearing into complaints about VPD conduct at the Hyatt Hotel in December, 1998, have been the subject of widespread media coverage and publicity.

[6]         The Plaintiff makes a myriad of claims against the Police Defendants in his Amended Statement of Claim including claims against the individual officers for assault, battery, wrongful imprisonment and conversion.  He claims that the actions of the Police Defendants constituted gross negligence and malicious or wilful misconduct.

RULE 19(24)(a)

[7]         To succeed on an application under Rule 19(24)(a), the Police Defendants must show that it is “plain and obvious” that the Statement of Claim discloses no reasonable claim: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.  No evidence is admissible on an application of this nature.  Instead, the facts alleged in the Statement of Claim are treated as proven: Hunt, supra; Rule 19(27).  It will therefore be useful for me to canvass the facts as alleged in the Plaintiff’s Amended Statement of Claim.

FACTS AS ALLEGED IN THE AMENDED STATEMENT OF CLAIM

[8]         The alleged facts, as extracted from the Amended Statement of Claim, are as follows:

The Incident of August 1, 2002

16.  On the morning of the 1st day of August, 2002, the Right Honourable Jean Chretien, the Prime Minister of Canada, attended at or near the intersection of Taylor and Pender Streets, in the City of Vancouver, Province of British Columbia to preside over a public ceremony to officially open a monument known as the “Millenium Gate”.  The RCMP and VPD shared the responsibility of providing policing services and security for the ceremony.

17.  The Plaintiff attended the ceremony as an observer and was the subject of surveillance conducted by members of the RCMP and VPD.

18.  The Plaintiff left the ceremony at approximately 10:20 a.m. and proceeded on foot in a southerly direction toward Keefer Street.  When the Plaintiff was approximately one block away from the ceremony, and out of sight, he was accosted by a uniformed peace officer who requested that the Plaintiff speak to the Defendant Kelly.  The Plaintiff complied with that request.

19.  The Defendant Kelly, along with the Defendant Prasobsin and one other uniformed member of the VPD whose identity is unknown to the Plaintiff, then grabbed and handcuffed the Plaintiff.  The Plaintiff repeatedly asked whether he was under arrest and repeatedly requested the opportunity to contact legal counsel by telephone.  Kelly refused to advise the Plaintiff whether he was under arrest, refused the Plaintiff’s repeated requests to contact counsel and threatened to charge the Plaintiff with assaulting a police officer unless the Plaintiff stopped asking questions.  When the Plaintiff attempted to use his personal cellular telephone to contact counsel, one of the three VPD members seized the telephone.

20.  The Defendants Kelly, Prasobsin and the other VPD member searched the Plaintiff and seized his wallet, keys and watch.  They opened the Plaintiff’s wallet and found his driver’s licence, his business card, and other cards identifying the Plaintiff as a member of the Law Society of British Columbia, the Canadian Bar Association and the American Civil Liberties Union.  Kelly then used his radio to report his findings to his colleagues.

21.  After concluding these radio conversations, Kelly, Prasobsin and the other VPD member forcibly moved the Plaintiff in a southerly direction along Taylor Street and forcibly pushed him into a VPD vehicle.  The Plaintiff, who was still in handcuffs, offered no resistance.

22.  The Defendant Fodor drove the VPD vehicle in a circuitous route and ultimately arrived at the Jail.  The Plaintiff was left unattended in the parked vehicle outside the Jail for approximately thirty minutes.

23.  When the Plaintiff was removed from the vehicle and taken into the Jail, he repeatedly requested the opportunity to contact legal counsel.  Those requests were refused.  Several of the Jail staff, whose identities are unknown to the Plaintiff, together with the Defendant Gatto, then conducted a strip search of the Plaintiff.  The strip search was recorded by a closed-circuit television video camera.

24.  The Plaintiff again repeatedly requested the opportunity to contact legal counsel and again those requests were refused.  The Plaintiff was then confined in a large jail cell.

25.  After some time passed, the Plaintiff was granted the opportunity to make a telephone call.  He was then taken to a small jail cell marked “INTOX” and unlawfully and [sic] confined in solitary confinement until approximately 3:30 p.m. on August 1, 2002, when he was released without an apology.

26.  The Plaintiff was detained in custody for a total of approximately five hours.  He was never charged with any offence and was never taken before a judge.

27.  While the Plaintiff was in custody, the Defendant Cope conducted a search of city streets for the Plaintiff’s automobile, located it, and seized, searched and impounded it in a VPD garage at 342 Alexander Street in the City of Vancouver.  Cope undertook these actions pursuant to a suspicion that there may have been a pie in the trunk of the automobile.

[9]         I will now deal with the Police Defendants’ claim that the Amended Statement of Claim discloses no reasonable cause of action against them on the basis that they cannot be personally liable because of s. 21 of the Police Act.

IS THE MATTER STATUTE BARRED PURSUANT TO S. 21 OF THE POLICE ACT?

[10]    The Police Defendants submit that, even if all the allegations of fact in the Amended Statement of Claim are accepted as proven, they cannot be personally liable to the Plaintiff because of s. 21 of the Police Act.

[11]    The relevant parts of s. 21 read as follows:

21(2)     No action for damages lies against a police officer or any other person appointed under this Act for anything said or done or omitted to be said or done by him or her in the performance or intended performance of his or her duty or in the exercise of his or her power or for any alleged neglect or default in the performance or intended performance of his or her duty or exercised of his or her power.

(3)  Subsection (2) does not provide a defence if

(a)  the police officer or other person appointed under this Act has, in relation to the conduct that is the subject matter of action, been guilty of dishonesty, gross negligence or malicious or wilful misconduct, or

(b)  the cause of action is libel or slander.

It is clear and apparent from the text of s. 21 that this provision will only assist the Police Defendants if it can be said that the facts alleged in the Amended Statement of Claim do not establish gross negligence, or malicious or wilful misconduct on their part.

[12]    I note once again that on an application under Rule 19(24)(a) I must accept as true the facts alleged in the Amended Statement of Claim.  As such under this motion I must accept that the police did in fact detain, imprison and strip search the Plaintiff, and seize and search his car arbitrarily and without any legal justification.  The Plaintiff’s tortious claims in the form of assault, battery, wrongful imprisonment and conversion are intentional torts and by definition “wilful” acts.

[13]    In my view the purpose of s. 21(3)(b) of the Police Act is to prevent police officers from abusing their power in ways such as those alleged by the Plaintiff.  These alleged actions at a minimum amount to gross negligence and more likely amount to malicious or wilful misconduct.  Certainly police officers cannot expect to evade personal liability via s. 21(2) of the Police Act when they are alleged to have engaged in such behaviour.

[14]    In Walkey (Guardian ad litem of) v. Canada (Attorney General), [1997] B.C.J. No. 599 (Q.L.)(S.C.) police officers were found personally liable and unable to rely on s. 21(2) as a defence for conduct which, in my view, was far less egregious than that alleged in the case at bar.

[15]    As set out above, the Police Defendants are alleged to have been involved in arresting, imprisoning, and strip searching the Plaintiff, in addition to seizing and searching his vehicle.  The basis for their actions was a suspicion that the Plaintiff might have had a pie on him that he was going to throw in the face of the Prime Minister.  While I recognize the importance of protecting our Prime Minister, I also recognize the importance of protecting the rights of an individual.

[16]    From the statements included in the Amended Statement of Claim, which for the purpose of this application I have to treat as being true, there would seem to be an irresistible inference that the Police Defendants, all of whom knew the identity of the Plaintiff and his past history with the police, sought by their actions to embarrass and punish the Plaintiff.  In so doing they infringed a number of the Plaintiff’s Charter protected rights.  In this regard, I cannot help but question the purpose of the alleged strip search of the Plaintiff.  Did the police officers really expect to find a pie hidden beneath the Plaintiff’s clothes?

[17]    Having considered the alleged conduct of the Police Defendants and taking it to be true as I am required to do in these proceedings, I am unable to find that the Police Defendants’ personal liability is statute barred by s. 21(2) of the Police Act.  As such I am unable to find that it is “plain and obvious” that the Plaintiff’s Amended Statement of Claim discloses no reasonable cause of action.

CONCLUSION

[18]    The Police Defendants’ application is dismissed.  The Plaintiff is entitled to costs on this application.

“S.R. Romilly, J.”
The Honourable Mr. Justice S.R. Romilly