HERGOTT: Police officer order to pay out victim after arrest

Paul Hergott is a personal injury lawyer based in West Kelowna

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 cell phone. 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.

Missed last week’s column?

HERGOTT: Watching for pedestrians while driving

About Paul Hergott, Personal Injury Lawyer:

Paul 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 personal injury victims, which has gradually became his exclusive area of practice. Paul’s practice is restricted to acting only for the injured victim, never for ICBC nor for other insurance companies.

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