Parting is such sweet sorrow

Thank you. And goodbye. At least for now.

It’s another Saturday morning as I settle down for the two-four hour process of column writing. A weekly process that has repeated itself since the beginning of January, 2007, when I started writing for a Westside edition of the Kelowna Capital News.

It adds up to one year of full-time writing.

Yesterday evening my wife suggested that I stop. It wasn’t the first time. But the first time I considered the suggestion seriously.

It helped that her suggestion came at the end of another 55-hour work week.

My initial spark of writing passion was about shining a bright light on the shadowy world of ICBC and other personal injury claims.

It didn’t take long for road safety topics to work their way in.

I have the unique opportunity to investigate the causes of crashes and collisions that result in lifetimes of consequences.

Car crash causes are commonly labeled for the traffic rule that was broken, i.e. failing to yield, failing to stop for a stop sign, etc. But when you really dig into it, you realize that the root cause is inattention.

Drivers don’t purposefully pull out from stop signs in the paths of other vehicles. The fact is that they don’t see the oncoming vehicle that’s there to be seen because of “inattention blindness”.

The more I put my mind to it, the clearer I saw the problem and could identify solutions. And the more I became convinced that I could help steer road safety policies in the right direction.

This column was my pulpit.

ICBC claims are going the way of the dodo bird and I admit defeat on the road-safety front.

I have enjoyed writing about other topics from time to time. But it’s been more about “coming up with a topic” than the words flowing from my passion filled fingers.

I am so very, very thankful for the opportunity I have been given to share my ideas. And for the many who have reached out to me over the years with encouraging comments.

Special thanks to my wife who has tolerated the time I have taken away from our family.

To my father who has given me grammatical correction and encouragement since the beginning.

And to my wife, Jess and Sara-Jane who have so very kindly read and provided their feedback on each of my drafts along the way.

So I’m hanging up my keyboard. At least for now. Perhaps when my work week is shaved down and I regain a writing passion I’ll want to return. And perhaps there will still be a media platform willing to publish what I’ve got to say.


Police do Charter dance

Must the police be deterred from breaching our Charter rights? Are the “Charter damages” awarded by the courts a sufficient deterrent?

In the recent case of Joseph v. Meier, 2020 BCSC 778, the court awarded Charter damages of $5,000 to a 61-year old shopper whose rights had been breached.-A police officer, suspecting that Ms. Joseph had concealed an item, was intent on searching her bag.

He asked to talk to her, she refused and he forcibly arrested her and searched her bag.

He did not have the necessary grounds to arrest her. The arrest and search were breaches of Ms. Joseph’s rights not to be arbitrarily detained (section 9 of the Charter), and to be secure against unreasonable search (section 8).

I suspect that most people would have just “taken it." If a police officer came up to me asking to look through my belongings, I think I would readily comply.

I’ve got nothing to hide. I want to help, not hinder, police officers in their important work of enforcing our laws and protecting us from law breakers.

But I’m a straight, middle-class, middle-aged white guy who dresses accordingly. I live in a middle-class neighbourhood. I’ve never walked the earth under a cloud of unfair suspicion and mistrust.

I would be the last person stopped by the police during a street check. And if a store security person was going to follow someone around to ensure they didn’t steal anything, they wouldn’t choose me.

I don’t carry a purse that contains all sorts of mysterious and personal things I wouldn’t want rifled through.  And I’m not an incredibly private person who would be mortified by a breach of my personal privacy.

We want our police to enforce our laws and protect us from bad guys, but we want them to do so while conscientiously respecting our Charter rights.

Can we expect our police to conscientiously respect our rights without some mechanism that deters their breach?

Of course not. Police want to catch bad guys. Charter rights get in the way of that. Respecting Charter rights takes constant mindfulness. You can’t expect constant mindfulness of anyone without some mechanism of deterrence if they don’t meet up to that standard.

The most common deterrent for beach of Charter rights is exclusion of evidence.

Criminal law databases are full of cases where the police have successfully caught a bad guy, but the case has been thrown out because they got their hands on the incriminating evidence by trampling on the bad guy’s rights.

Police don’t want the hard work they’ve done catching bad guys to be tossed out, so they hopefully kick themselves when that happens and resolve to be more conscientious about respecting Charter rights in their future investigations.

If you’ve done nothing wrong, like Ms. Joseph, that deterrent does not exist. The only deterrent comes from section 24(1) of the Charter that allows you to apply to a court for a remedy.

The remedy is an award of Charter damages.

Ms. Joseph was awarded Charter damages of $5,000.

Alan Ward who had been properly arrested, but unnecessarily required to strip down to his underwear to be searched before being placed in cells, was also awarded $5,000. (Vancouver (City) v. Ward, 2010 SCC 27).

Randolph Fleming, whose freedom of expression was breached when he was prevented from attending a protest, was also awarded $5,000. (Fleming v. Ontario, 2019 SCC 45).

Michael Fong was awarded $2,000 for an unlawful arrest, brief detention and a “search” that involved only his wallet (Fong v. British Columbia (Minister of Justice), 2019 BCSC 263).

Luke Stewart was awarded only $500.00 for an improper backpack search that police had required in order to allow protesters to enter a park (Stewart v. Toronto (Police Services Board), 2020 ONCA 255)

Those amounts might make sense if you could have your complaint fairly assessed in an inexpensive manner. But that is not the case.

In each of those cases there were trials where the claims were vigorously defended. Two of the cases (Ward and Fleming) required appeals up to the Supreme Court of Canada.

Lawsuits are expensive. For example, after winning his token $500. Luke Stewart claimed “partial indemnity” (not completely covering his legal bill) costs of $48,000 for just the appeal and he was awarded only $20,000 of that. His costs for the trial were going to be separately assessed.

Will the threat of a $5,000 consequence, available only after spending tens of thousands of dollars in legal bills that are only partly reimbursed in costs, motivate the police to be conscientiously mindful of our rights?  Heck no.

Perhaps courts will increase their awards to make them meaningful. And require 100 percent reimbursement of legal expense incurred pursuing them.

In the meantime, we are left with the incredible irony of hoping the bad guys will continue to look after us by giving police consequences (the exclusion of evidence) when they breach the bad guys’ rights.

Resistance is futile in arrest

Yes, you have the right to resist an unlawful arrest. But doing so is not an advisable way to enforce your rights!

One problem is that you have no way of knowing, at the time of an arrest, whether or not it is lawful.

A police officer might have reasonable grounds to make an arrest even if you’re “squeaky clean” innocent of any wrongdoing.

The officer in the case I wrote about last week (Joseph v. Meier, 2020 BCSC 778) was investigating Ms. Joseph for shoplifting. Had a store employee told the officer they witnessed Ms. Joseph slipping an item in her bag, the officer would have had reasonable grounds to make the arrest even if the store employee had been mistaken.

Resisting a lawful arrest is a criminal offence, even if you’re innocent.

A more significant problem is the practical matter that “resistance is futile” when it comes to the police. There is no “rights angel” that will step in and stop the police from acting unlawfully. If they are intent on arresting you, they will. It doesn’t matter how big, well trained in fighting, or armed you are. The more you resist, the more likely you will be hurt or even killed.

If it turns out later that the arrest was unlawful, as it did for Ms. Joseph, you can pursue compensation for your injuries and losses. But compensation under our law just balances out your losses. There’s no bonus. And just like Ms. Joseph, you’re likely to need a lawyer to get that compensation. The significant fees you pay to your lawyer will leave you undercompensated.

And “I’m glad I was hurt so that I could get compensation” was said by no client of mine, ever.

So are your rights meaningless? How else do you enforce your right not to be unlawfully arrested, besides resisting that arrest? If you submit to the arrest and the police search your bag, haven’t your rights already fluttered away?

Your rights are not meaningless.

The Charter of Rights and Freedoms includes an enforcement mechanism. Section 24(1) states:  “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

An unlawful arrest is a breach of your right under Section 9 of the Charter “not to be arbitrarily detained or imprisoned.”

And if your bag is searched as part of an unlawful arrest, as was the case with Ms. Joseph, that’s a breach of your right under Section 8 “to be secure against unreasonable search or seizure.”

The police officer’s lawyer minimized the Charter breaches. They argued that the search of her purse and phone was brief and the items were returned to her within minutes. They noted that she was detained only a brief period of time and released at the scene.

The court quoted from an authority from the Supreme Court of Canada that an award of damages (money) for a Charter breach might be appropriate to fulfil one or more of three functions, i.e. “compensation, vindication of the right, and/or deterrence of future breaches.”

Compensation for loss arising from those breaches was not appropriate because Ms. Joseph had already been awarded compensation for her injuries and losses. For the important functions of vindication of the right and deterrence of future breaches, Ms. Joseph was awarded $5,000.

A deterrent is important. Next week I will discuss why, and whether or not the amounts being awarded for Charter breaches are meaningful deterrents.


Can you legally resist arrest?

A police officer approaches you as you leave a clothing store, wanting to talk to you. They say they think you have some things in your bag that you didn’t pay for. You decline and try to keep walking. They try to cuff you but you resist, turning away and clasping your hands together. The police officer forces the issue and you are injured in a scuffle.

You might ask yourself: “Self, why am I such an idiot?”

Surely you must comply if a police officer approaches asking to speak with you. Failure to do so would be a crime in itself, which police officers refer to as “obstructing justice.”

And if you resist their attempt to arrest you, that’s another crime that they refer to as “resisting arrest.”

It’s your own fault if you are hurt when the police officer forces the issue. As long as they use reasonable force, of course.

Borrowing a saying I recently learned: “Do bad things and you win bad prizes.”

But might you be perfectly within your rights to keep walking? And might it be lawful to resist an arrest? What then? Do you have any recourse against the police?

Madam Justice B.J. Brown answers those questions in her recent court decision of Joseph v. Meier, 2020 BCSC 778.

Irene Joseph was a 61-year-old with a fused left ankle and various chronic medical complaints, including chronic pain. She used a walker for mobility.

She had been shopping in a clothing store.

The store manager saw a young woman, who Ms. Joseph had been talking to, put a scarf into her bag. When confronted, the young woman pulled out the scarf, threw it down, and ran from the store. Ms. Joseph was not seen putting anything into her bag.

The police were called.

When the police officer attended, he talked to the store manager. According to the police officer, the store manager told him she felt that Ms. Joseph might have concealed something in her bag.

The police officer waited until Ms. Joseph completed her purchases. He told her as she was leaving the store that he wanted to talk to her. Ms. Joseph wouldn’t stop, saying she had done nothing wrong. The police officer decided to handcuff her, but she resisted, turning away and holding her hands clasped in front of her.

The officer decided to take her to the ground where Ms. Joseph continued to resist. She was laying on her stomach, hands clasped in front of her, the police officer struggling to pull her arms out to cuff them.

The officer finally decided to stop trying to cuff Ms. Joseph, got up off of her and helped her to her feet. He then searched her belongings and cellphone. There was no stolen merchandise.

Ms. Joseph had been injured in the struggle and brought a lawsuit pursuing fair compensation for her injuries and losses.

Madam Justice Brown reviewed the law.

The Criminal Code provides that a police officer acting on reasonable grounds in the enforcement of the law is justified in using as much force as is necessary.

Madam Justice Brown noted the clear law that it is not enough for the police officer to believe they have reasonable grounds. The grounds they rely on must objectively be reasonable.

The store manager’s suspicion that an offence might have been committed was not enough. Madam Justice Brown noted: “A mere suspicion does not provide reasonable grounds to arrest.”

The police officer pointed to Ms. Joseph’s suspicious behaviour in refusing to provide her name and refusing to permit him to search her bag.

Madam Justice Brown reviewed the law about a person’s obligation to stop and talk to the police.

She quoted from another case: “Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless . . . [he] arrests him . . . ."

Without objectively reasonable grounds to believe Ms. Joseph had committed a theft, the police officer could not lawfully arrest her.

In legal terms, the police officer had committed the civil wrongs of false arrest, false imprisonment (restricting Ms. Joseph’s movement) and assault and battery.

The police officer was found liable to pay fair and reasonable financial compensation for Ms. Joseph’s injuries and losses.

What if Ms. Joseph had not resisted the arrest. Would she have had any resource for the unlawful arrest even though she had not sustained any injury? What about the invasion of her privacy in the search of her bag?

Or would the unlawful police actions have been without recourse?

The case also addressed those questions, which I will review in another column.

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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