June 1, 2010 - By Davin Charney
Lawsuit Alleges Police Illegally Arrested Man
and
Used Excessive Force
The full statement of claim - in case you need to sue the police.
One of the cases that Davin Charney is involved in.
The Waterloo Regional Police are facing another lawsuit.
Matthew Probert is alleging that he was illegally arrested and then police used excessive force.
Mr. Probert suffered a number of injuries to his head as a result of the force used during the arrest.
Mr. Probert was charged with ‘causing a disturbance’, ‘assault police’, and ‘assault with intent to resist arrest.’
All charges were later withdrawn at the request of the Kitchener Crown Attorney’s Office.
This claim is one of a number of claims made against the police which involved illegal “person stops”.
In this case Mr. Probert refused to provide ID to a police officer.
The officer then grabbed Mr. Probert and caused a violent confrontation.
The claim also alleges that Mr. Probert was subjected to an abusive strip search at the Division 1 police station.
Video at the trial will show that he was forced to walk from the strip search area to his cell without his pants.
The claim is for $25,000.
A trial will take place at 10am on June 2, 2010 at the Small Claims Court at 20 Weber Street in the City of Kitchener.
Schedule “A”
1. The Plaintiff claims:
a. general damages in the amount of TEN THOUSAND DOLLARS ($10,000) for negligence, and for the assault and battery, false arrest, and false imprisonment of the Plaintiff;
b. in addition, and/or in the alternative, general damages in the amount of TEN THOUSAND DOLLARS ($10,000) for breach of the Plaintiff's rights under ss. 2, 7, 8, and 9 of the Canadian Charter of Rights and Freedoms;
c. in addition, and/or in the alternative, aggravated and punitive damages in the amount of TEN THOUSAND DOLLARS ($10,000);
d. his costs, including or in addition to costs for his disbursements, counsel fee, inconvenience and expense, and any other costs pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, c.43, and Rule 19 of the Rules of the Small Claims Court;
e. pre-judgement interest pursuant to the provision of the Courts of Justice Act, R.S.O. 1990, c.43, section 128;
f. post-judgement interest pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, c.43, section 129;
g. such further and other relief as may be claimed or awarded.
The Parties
2. The Plaintiff, Mathew Probert is a 26 year old man who lives in the City of Kitchener.
3. The Defendant Waterloo Region Police Services Board was at all material times the employer of all police officers in the Waterloo Regional Police Service and, as such, is vicariously liable for the claims of the Plaintiff pursuant to s. 50 (1) of the Police Services Act, RSP 1990, C. p. 15.
4. The Defendant Constable Troy Chessell, badge #1048 (“Chessell”) was at all material times employed by the Defendant Waterloo Region Police Services Board.
5. The Defendant Constable T. Braiden, badge #1100 (“Braiden”) was at all material times employed by the Defendant Waterloo Region Police Services Board.
6. The Defendant Constable H. Vankuik, badge number unknown (“Vankuik”) was at all material times employed by the Defendant Waterloo Region Police Services Board.
Cause of Action
Material Facts
7. At approximately 3pm, on April 13, 2009 the Plaintiff was walking along Ahrens Street West in Kitchener. He had just visited a variety store and was returning to his residence. The Plaintiff was doing nothing that would draw the attention of the police to himself.
8. Without reason, the Defendant Cst Chessell pulled along side the Plaintiff in a marked police vehicle and asked the Plaintiff to provide his name. Chessell asked the Plaintiff to produce identification. The Plaintiff asked Chessell if he was under arrest or being detained and Chessell said, “no.”
9. The Plaintiff went to leave, and Chessell then turned his vehicle in front of the Plaintiff and blocked his path. The Plaintiff protested verbally and insisted that he should be allowed to leave.
10. Chessell then assaulted the Plaintiff by grabbing him, and pushing him towards the rear of his vehicle. Chessell arrested the Plaintiff for “causing a disturbance”.
11. Cst Braiden and Cst Vankuik arrived at the scene and the three officers used extreme and excessive force to arrest the Plaintiff. The Plaintiff sustained serious injuries including a gash and a large scrape on the right side of his head and a significant bruise on the left side of his head behind his ear.
12. The Plaintiff was charged with “cause disturbance”, “assault with intent to resist arrest”, and “assault peace officer”. The Plaintiff was taken to the Division 1 police station. The Plaintiff should have been taken to a hospital. The Plaintiff was bleeding badly from his head.
13. At Division 1 the Plaintiff was removed from the police vehicle and a shirt was placed over my head so that he could not see anything. He was taken down the ramp and strip searched by Chessell in the open area in front of the processing desk. He was not strip searched in the designated search room. After the strip search, the Plaintiff’s pants were not returned to him, and he had to walk to the cell area without any pants or underwear. The Plaintiff was placed in the cell without pants or underwear, although these items were returned to him.
14. The Plaintiff was held overnight and released on bail the next day.
15. The terms of release for the Plaintiff included a term that he not attend within 200m of the place of his arrest. As a result, the Plaintiff could not return to live at his residence. He was made homeless by this incident and had to stay at the House of Friendship (homeless shelter).
16. On May 22, 2009, the Plaintiff attended the Ontario Court of Justice at 200 Frederick Street in Kitchener. All charges against the Plaintiff were withdrawn at the request of the Crown.
Basis for Claim
17. Chessell was negligent in his actions. He failed in his duty to take reasonable care and failed to meet the standard of a reasonable police officer.
18. The Defendant Chessell unlawfully detained the Plaintiff.
19. Chessell had no reason to ask the Plaintiff to identify himself or provide identification. Chessell was not acting within the law when he asked the Plaintiff to identify himself. Chessell breached the Plaintiffs rights under s. 7, 8, and 9 of the Charter of Rights and Freedoms when he asked the Plaintiff to identify himself.
20. Chessell told the Plaintiff that he was not being detained, but then he detained the Plaintiff by blocking his path with the police vehicle and by physically taking hold of the Plaintiff. Chessell detained the Plaintiff without reasonable suspicion to believe that the Plaintiff was involved in any offence. There is no police power to detain a person for the purposes of identification.
21. The detention of the Plaintiff was arbitrary and contrary to s. 9 of the Charter Rights and Freedoms.
22. Chessell assaulted and battered the Plaintiff in order to carry out an unlawful detention.
23. S 495(1) of Criminal Code states:
495(1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence, or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
24. Chessell did not have reasonable and probable grounds to arrest the Plaintiff under s. 495 of the Criminal Code and he unlawfully and falsely arrested the Plaintiff.
25. The Plaintiff was denied his right to liberty as a result of the unlawful arrest and detention, contrary to s. 7 of the Charter of Rights and Freedoms.
26. The Plaintiff did not consent to any search, detention or arrest.
27. The Plaintiff was arrested for “causing a disturbance”, but it was Chessell who caused a disturbance. Chessell caused a disturbance when he unlawfully questioned, detained, assaulted and battered the Plaintiff.
28. Chessell assaulted and battered the Plaintiff in the course of an unlawful and false arrest and false imprisonment.
29. The Plaintiff protested verbally after he was unlawfully questioned, detained and arrested by Chessell. Any person has the right to tell police that the police are acting unlawfully. The arrest of the Plaintiff by Chessell for “causing a disturbance” was contrary to s. 2 of the Charter of Rights and Freedoms.
30. The Defendants Chessell, Braiden and Vankuik used excessive force when arresting the Plaintiff. During the arrest, the Plaintiff was punched in the head, kicked, kneed, and his head was smashed against the ground. The Plaintiff did not cause harm to the Defendants and they sustained no injuries. The Plaintiff sustained serious head injuries, caused jointly by the defendants.
31. The Plaintiff was fully justified and acting within the law if he reasonably resisted an unlawful detention and/or arrest.
32. The Plaintiff was unlawfully strip searched by Chessell at the Division 1 police station. The strip search was carried out in a manner that was degrading, humiliating and without regard for Plaintiff’s privacy. The Plaintiff was searched in the most public part of the prisoner area. After the search, the Plaintiff’s pants and underwear were not returned to him and he was taken, naked from the waist down, to a cell. This type of search is not authorized by law.
33. The force actually used, or threatened, during the strip search of the Plaintiff was not authorized by law and therefore Chessell assaulted and battered the Plaintiff during the strip search.
34. The strip search of the Plaintiff was unreasonable and contrary to s. 8 of the Charter of Rights and Freedoms.
35. Chessell was negligent when he did not take the Plaintiff to receive medical attention. After the unlawful arrest, the Plaintiff was seriously bleeding and had significant head injuries.
36. Chessell acted with malice, improper motives, and without regard for the law.
Damages
37. The Plaintiff has suffered damages, including:
a. damages for loss of liberty, physical, emotional, and mental distress, and indignity;
b. damages for loss to the Plaintiff’s reputation;
c. aggravated damages for the insulting, high handed, malicious and oppressive conduct of the Defendants;
d. punitive damages for the Defendants’ abuse of authority for a malicious purpose with wilful and and/grossly negligent disregard of the Plaintiff’s rights;.
Remedy Sought
38. Plaintiff claims damages in respect of the tortious conduct of the Defendants.
39. The Plaintiff further claims damages pursuant to s. 24(1) of the Charter of Rights and Freedoms for the breach of his rights under ss. 2, 7, 8, and 9 of the Canadian Charter of Rights and Freedoms.
40. The Plaintiff states that his damages under each head of damages set out herein exceed TEN THOUSAND DOLLARS ($10,000) respectively. The Plaintiff therefore claims damages, in total, in the maximum amount within the monetary jurisdiction of this Court.
41. The Plaintiff proposes that this action be tried at Kitchener.
Davin Charney Barrister and Solicitor PO Box 31071 25 Frederick St. Kitchener ON N2H 6S8
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