Case Law
Hindsight is not the measuring stick by which courts should judge police decisions in how warrants are executed, so says Ontario’s top court.
Two protestors have been awarded damages after police used plastic ties to restrain them and detained them longer than necessary.

In Godin v. City of Montreal, 2017 QCCA 1180, three plaintiffs were amongst a group of 60 to 70 other protestors occupying a small and densely populated tent city in Montreal’s Victoria Square in support of the “Occupy Wall Street” movement. Municipal authorities ordered the public park, which included Victoria Square, closed on a 24-hour basis. An order to leave was given by the Montreal police and most of the protestors left voluntarily and peacefully. However, about a dozen people, including the three plaintiffs, refused to leave and attached themselves to each other and a tent. They were arrested — two of the plaintiffs had their hands bound behind their backs with plastic tie wraps and were held in a heated bus parked at the site for about 20 to 60 minutes.

Following their arrest, the plaintiffs were photographed and the back of one hand was marked with a number in black felt pen and invisible ink, which could be viewed under a special light in the event that the black ink is erased or blurred (for the purposes of identification).

In the experience of the police, some people refuse to identify themselves or provide a false name and so the numbers allow the police to match the person arrested with any possessions seized from them. As well, the numbers provide easy identification should the arrestees return to occupy the square upon their release from custody. The ink would ordinarily be gone from the hand in three days.

An extensive video recording was also made by the police of the entire operation. One of the plaintiffs, Godin, was released on site (his car was parked nearby) but the two others, Haugh and O’Callaghan, were placed in the back of police cars, still bound by plastic ties, and driven to other parts of the city. This prolonged their detentions for about 20 minutes.

All three plaintiffs sued the City of Montreal, seeking damages for bodily, moral or material injury under the Civil Code of Quebec for, among other things, marking their hands with invisible and black ink, taking photos of them during their detention, and for the duration and manner of their detention, including the cuffing of their hands with plastic ties and their transport to other parts of the city.

A Court of Quebec judge dismissed the plaintiffs’ actions. He found the plaintiffs failed to demonstrate the police did not act reasonably. In the judge’s view, the techniques used and the force applied were not excessive, given the necessity of physically removing the plaintiffs from the square, their persistent refusal and their passive resistance. Marking their hands with invisible and black ink was not offensive in the context of a mass arrest. As for the binding of the hands behind the back with plastic tie wraps, the judge found this to be a lawful common practice. The judge ruled that the detention in a heated bus was, in the circumstances, reasonable. The taking of the plaintiffs’ photos following their arrest was for the purposes of identification. And, even if the police did commit a fault, the plaintiffs suffered no damage and any discomfort experienced by them was minor and temporary.

The plaintiffs appealed the trial judge’s decision to the Quebec Court of Appeal.

Marking the hands
The Court of Appeal found that marking the hands with ink was momentary and minimal, did not penetrate the skin, and did not interfere with the plaintiffs’ physical, psychological or emotional integrity in more than a fleeting manner. Nor was there any suggestion that the plaintiffs were bothered or suffered psychologically beyond the fact of their arrest by the markings. The police committed no wrong. And, even if they did, there was no material damage proven.

Although there was no statutory authority for the taking of the plaintiffs photos, since they were only arrested for a by-law infraction, the police may nonetheless “take a photo of people they arrest as part of their duty to retain evidence of the offence (i.e. the identity of the alleged perpetrators)... A photo simply records in visual form what a sketch or notes of a detainee’s appearance would preserve in written form,” stated Justice Schrager, adding:

A police officer acting reasonably would seek to preserve evidence of the offence, including the arrestees’ identity and appearance for the purposes of collecting evidence to present to a court. There was consequently no fault committed by the police in taking the photographs in question. [para. 39]

Furthermore, no damages (bodily, material or moral) had been proven that might have resulted from the taking of the photos after arrest.

Plastic tie wraps
The two plaintiffs who had their hands bound with plastic tie wraps argued this was unnecessary because they were co-operative. The police, on the other hand, contended that the binding was necessary to prevent the detainees from rubbing out the black ink numbers marked on their hands and as a security concern.

“Police officers, acting reasonably, may handcuff an arrested person for reasons of security or to execute their duties,” said Justice Schrager. “Even though handcuffing may arise upon arrest, the fact of arrest, even if legal, does not automatically give rise to the right to apply handcuffs to a detained person… Handcuffing should not be carried out systematically. Applying handcuffs (or tie wraps) is within the discretion of an arresting officer but there must be a good reason to do it, such as the security of the police or others, including the arrestee.”

In this case, the initial binding of the hands was not unreasonable. However, the plaintiffs’ continued restraint in the back seat of police cars with their hands bound when they were taken off the bus was unreasonable. At this point, the police had already decided not to charge the two plaintiffs.

Detention duration
The Court of Appeal found the plaintiffs’ detentions in the bus for 20 to 60 minutes was not unreasonable. However, the prolonged detention once they were off the bus constituted a fault by police. Once it was decided the plaintiffs would be released, their continued detention was not necessary and the police were therefore obliged to release them:

Though the police do not operate a taxi service, if having resolved to release the [plaintiffs], the police really felt the necessity to remove [the plaintiffs] out of the area of Victoria Square to avoid a re-occupation of the square, they could have uncuffed them and offered to drive them home. Instead, they left them handcuffed and transported them without consent to a distant point. This constitutes a fault in what was otherwise reasonable action on the part of the police. [para. 58]

In assessing damages, the Court of Appeal awarded Haigh and O’Callaghan, the two plaintiffs who were zip tied and transported to other parts of the city, $2,000 each with interest for moral and material loss related to the inconvenience of the transport and discomfort of the tie wraps.

As for Godin’s detention, the third plaintiff, it was not prolonged and he was not handcuffed so no damages were awarded. However, his initial order to pay legal costs was reversed given the public interest questions involved in this case.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
There is no need to establish a causal connection between a driver’s blood alcohol content (BAC) and the death of a third party resulting from an accident on charge under s. 255(3.1) of the Criminal Code.
The Ontario Court of Appeal has found a safety search conducted incidental to an investigative detention permitted the police to search a trunk when officers responded to a man with a gun report.
A safety search of an assault arrestee’s bag was justified even though there was no information he possessed a weapon and was handcuffed at the time the search took place. In R. v. Aviles, 2017 ONCA 629, the police responded to a report of an assault occurring at a Mac’s Milk convenience store. The victim told police he knew one of the attackers by name. The other two attackers were a dark skin man wearing baggy hip-hop style clothing and a woman. The victim said he had lost a shoe during the assault and police found it in a nearby alley. Then, while talking with the police, the victim pointed through the convenience store window to three people approaching, a woman and two men, and identified them as his attackers. One of the men was the individual the victim had identified by name. The other man was Walter Aviles. He was wearing a black pea coat, black jogging pants, brown boots and a black baseball cap.
Every detail of an informer’s tip does not need to be verified by independent investigation before it rises to the level of reasonable grounds for arrest. In R. v. Dunkley, 2017 ONCA 600, the police were surveilling a suspected cocaine dealer’s residence when they saw Orlando Dunkley, a slim black male about six feet tall with a dark jacket, park a silver Honda Accord on the street near the house at about 9:05 p.m.
Although a co-resident cannot waive the constitutional rights of another, living with someone else can impact the expectations of privacy and may allow for valid consent to enter by one of the occupants.
In R. v. Pearson, 2017 ONCA 389, a man was killed after being shot in the back with a shotgun. The following day a police officer stopped Damian Pearson driving his car, concerned about impaired driving, given the manner in which the car was being operated. When he approached the driver’s side of the car, the officer noticed unusual redness in Pearson’s eyes. His pupils were dilated and the officer smelled burnt marijuana. Pearson was slow in retrieving his papers and failed field sobriety tests. The officer arrested Pearson for impaired driving and he searched the vehicle, seizing two shotgun shells in a knapsack in the trunk.
A three-member panel of Ontario’s Divisional Court has found police conduct amounted to racial profiling and it nearly tripled the damages that had been awarded at trial.
Ontario’s top court has thrown out a marijuana grow-op that police found in a man’s home after they entered it to check on his parenting.
A Saskatchewan judge has thrown out a two-foot-long machete as evidence because a police officer failed to articulate the need for a safety search.
Exigent circumstances are more about urgency than about police convenience,’ Canada’s top court has said. In R. v. Paterson, 2017 SCC 15, the police responded to a dropped 911 call from a cellphone. A woman was crying and apparently injured. The cellphone belonged to the caller’s mother and she was contacted. The mother told police that she thought her daughter was with her boyfriend, Paterson, who lived in a nearby apartment. The mother also said he had a shotgun. The police went to the apartment building and learned that the daughter had been transported by ambulance to the hospital with unknown injuries. The police knocked several times at Paterson’s apartment and announced “police,” and the door was eventually opened.
A man who sent email messages to an undercover police officer posing as a 14-yearold girl did not have a reasonable expectation of privacy in the messages received by the officer.

BC’s highest court has ruled that the police may ask a detainee narrowly tailored safety questions in the course of a protective search incidental to an investigative detention.
The Ontario Court of Appeal has upheld more than $400,000 in damages awarded to a woman because the police failed to protect her confidentiality after she provided information to them.
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