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Top court clears way for suing police; men waited until criminal charges over

Article Originally Published on September 20, 2018 by Advocate Daily. 

Canada’s top court has paved the way for a pair of separate civil lawsuits to proceed by affirming earlier rulings that two men alleging police assaulted them were justified in waiting for their criminal proceedings to end before suing.

In decisions released on Thursday, the Supreme Court of Canada refused to hear appeals by police in Woodstock, Ont., who argued the plaintiffs had waited too long to sue them.

In both cases, judges initially threw out the claims on the basis that the clock had started running on the date the plaintiffs were arrested and allegedly assaulted. However, those decisions were overturned on appeal, prompting the police to ask the Supreme Court to intervene.

In an interview with, Toronto criminal lawyer Aaron Harnett says, “It’s very reassuring for counsel to know that a person who is victimized by the police both physically and by the bad-faith laying of criminal charges has some breathing room to decide if he should sue in response.”

Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer says the decisions are significant in that they will have “an impact on victims of crime who may also wish to wait until the outcome of the criminal case to decide to sue the accused. The logic of the decisions seems to apply in that situation too.”

He says he expects the effect of the decisions to be “more lawsuits against the police as a result. Clients have been reluctant to start lawsuits before the criminal case is completed for a number of reasons. There is a fear that it will ‘poke the bear’ and add unwanted zeal to the prosecutor’s efforts.

“There is also the fear of being subjected to examination under oath in the civil case before being called upon to testify in the criminal case,” says Harnett. “Civil lawsuits are very expensive, and clients of modest means may need to fund the criminal litigation first. Finally, if a client is convicted of some or all of the charges, the merits of the civil lawsuit will be obvious before commencing it.”

The first case involved Robert Winmill, who police charged with assaulting an officer and resisting arrest after a struggle at his home on June 1, 2014. He was acquitted of both charges in February 2016 and issued his notice of action against the officers for battery on June 2, 2016 _ a day outside the legally prescribed two-year window.

Police successfully argued before a judge that Winmill had filed his battery claim too late after the alleged assault. On appeal, however, a majority of Ontario’s highest court found the limitations period had only begun on the date of his acquittal.

“The criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are, in reality, two sides of the same coin or mirror images of each other,” the Court of Appeal ruled in a split decision last December. “It made sense for him to postpone deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved.”

In a minority opinion, a dissenting justice who called the case “straightforward” said he would have dismissed Winmill’s appeal on the grounds that he had all the necessary information to sue as of the date he was injured, but had delayed for “tactical reasons.”

The second case involved Everton Brown, who was injured in a struggle when Woodstock police arrested him on Feb. 13, 2013, and charged him with criminal offences including drug charges and resisting arrest. At trial in October 2015, the prosecution withdrew the charges in exchange for a peace bond.

Harnett adds that “criminal counsel have often worried that by the client signing a peace bond as part of an agreement to withdraw criminal charges, the client was gravely prejudicing his right sue for malicious prosecution. That concern seems to have been allayed somewhat by virtue of the Court of Appeal in Brown v. Woodstock refusing to distinguish Winmill on the basis of the accused having signed a peace bond.”

Brown filed a suit against police on May 13, 2016, more than three years after the initial incident, alleging battery, illegal search, wrongful arrest and detention, various related charter breaches and malicious prosecution.

As in the Winmill case, police were initially successful in arguing Brown had waited too long but again, the province’s top court overturned the ruling on appeal in March. Although different charges were involved in the two cases and Brown entered a peace bond as opposed to being acquitted, the Appeal Court said those factors were irrelevant.

“The key point is that, as in Winmill, the battery action is essentially a mirror image of the criminal charge the appellant was facing,” the Appeal Court ruled. “As a result, it was open to the appellant to await the outcome of the criminal proceedings against him before finally deciding whether to bring his action, regardless of when he first formed the intention to sue.”

In terms of why the clock didn’t traditionally start after trial, Harnett points to what the court set out in Winmill:

” (It is ) obvious that the verdict in the appellant’s criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action grounded in a battery claim against the respondents.” Yet, lawyers have always been taught that the clock starts ticking when you are aware of the tort by the defendant. We worry so much about being negligent in missing limitation periods that there is a conscious and unconscious pressure to rush to decide to litigate. With this issue now settled law, counsel can rest a little easier in waiting for the criminal court verdict.”

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