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Court file no.:

ONTARIO

(COURT SEAL) SUPERIOR COURT OF JUSTICE

B E T W E E N:

STEPHEN CLARKE

Plaintiff Plaintiff

- and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIOAS REPRESENTED BY THE MINISTRY OF

COMMUNITY SAFETY AND CORRECTIONALSERVICES OPERATING AS THE ONTARIO

PROVINCIAL POLICE AND ITS EMPLOYEES JASONKATZ, MIKE DAVIDSON AND BRAD RATHBUN

ATTORNEY GENERAL OF ONTARIO, JIM HUGHES

Defendants

STATEMENT OF CLAIM

TO THE DEFENDANT

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. The claimmade against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you mustprepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on theplaintiff’s lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, withproof of service in this court office, WITHIN TWENTY DAYS after this statement of claim is served onyou, if you are served in Ontario.

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If you are served in another province or territory of Canada or in the United States of America, theperiod for serving and filing your statement of defence is forty days. If you are served outside Canadaand the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of intent todefend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more dayswithin which to serve and file your statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOUIN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFENDTHIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BEAVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

IF YOU PAY THE PLAINTIFF’S CLAIM, and $8,500 .00 for costs, within the time for serving andfiling your statement of defence you may move to have this proceeding dismissed by the court. If youbelieve the amount claimed for costs is excessive, you may pay the plaintiff’s claim and $400 for costsand have the costs assessed by the court.

Date ........................................................................... Issued by ...........................................................................Local registrar

Address ofcourt office : 393 University Avenue

10th Floor, Toronto, ON M5G 1E6.

TO Heather Burnett Counsel Ministry of the Attorney General

Crown Law Office Civil Law

720 Bay Street 8th Floor Toronto, ON M7A 2S9

Telephone: 416-325-7973 Facsimile: 416-326-4181 Email: heather.burnett@ontario.ca

Counsel for the Defendants

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CLAIM

1. As elaborated in further detail in items 134 to 140 on pages 50 through 53, the

plaintiff claims general damages in tort in:

a. Pecuniary losses of $8,500 and

b. A minimum non-pecuniary amount of $500,000.00 for the defendants’

violation of the plaintiff’s charter rights, and as compensation for injury to the

plaintiff’s dignity, feelings and self-respect.

2. Having regard to the gravity of the damage caused by the defendant’s intentional

and violent conduct, the plaintiff claims punitive damages in tort in the minimum

amount of $500,000.00.

3. The plaintiff claims aggravated damages in tort of $250,000.00.

4. The plaintiff further claims nominal damages for a legal right that has been violated

– a legal right that the law deems necessary to protect citizens, an amount of which

is to be decided by the courts.

4. The plaintiff further claims:

a. Damages for out-of-pocket expenses, including legal costs, that he has or will

incur as a result of the defendants’ deliberate violation of his charter rights;

pre-judgment and post-judgment interest on all amounts awarded, in

accordance with the Courts of Justice Act;

b. Any and all public interest remedies, that the plaintiff may request and this

Honourable Court deems to be appropriate under the circumstances,

including, but not limited to:

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i. The delivery of a letter of apology by each of the defendants to

the plaintiff;

ii. The publication, at the defendants’ expense, of any decision

rendered herein, in both Ontario Provincial Police news

magazine and the Ontario Provincial Police Association’s annual

newsletter to further serve as a deterrent to conduct that is not

acceptable since the Police Services Act (PSA) code of conduct

is obviously not a sufficient deterrent;

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c. Costs of this action on a full indemnity basis, together with

applicable Goods and Services Tax therein in accordance with

the Excise Tax Act, R.S.C. 1985, c. E – 15, as amended.

The involved parties

5. The plaintiff is a 60 year old Canadian citizen. He is self-employed as a hair dresser

having a Barber Shop in Bobcaygeon, Ontario where he also resides. At the time of

the incident outlined in this action he was 58 years of age and weighed 155

pounds. He still averages that weight.

6. The individual defendants Mike Davidson (Davidson), Jason Katz (Katz) and Brad

Rathbun (Rathbun) are employed as officers with the Ontario Provincial Police

(‘OPP’). Mr. Davidson and Mr. Katz hold the rank of constables (‘Cst.’) while Mr.

Rathbun holds the rank of sergeant (‘Sgt.’) and is their supervisor. All three work out

of the Peterborough Detachment of the OPP and are bound by their oath of office

with respect to the Federal Statutes of Canada and Ontario’s Provincial Statutes.

Furthermore they are bound by provisions of the Police Services Act (‘PSA’), OPP

Police Orders (‘OPP orders’) and Ontario Public Service’s (‘OPS’) guide to public

service ethics and conduct.

7. The corporate defendant, the OPP is identified by its legal name of Her Majesty the

Queen in right of Ontario as represented by the Ministry of Community Safety and

Correctional Services operating as the Ontario Provincial Police and is thereby

bound by the guidelines of the OPS.

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8. The individual defendant Jim Hughes (Mr. Hughes) is an Assistant Crown Attorney

and is employed by the Attorney General of Ontario. He performs his duties out of

the Provincial Courts in the City of Peterborough.

9. The corporate defendant and employer of Mr. Hughes is identified by its legal name

of Attorney General of Ontario.

CLAIM DETAILS

10. At approximately 10:50 PM, on Saturday the 3rd of December 2011, the plaintiff was

operating a motor vehicle northbound on County Road 29 when he saw that he was

approaching, what appeared to be, an accident scene at Woodland Drive.

11. At that time the plaintiff saw a police cruiser stopped on the shoulder of the roadway

ahead with its emergency lights activated and an officer, later identified as Cst. Katz

standing in the middle of the roadway waving traffic forward with a LED flashlight in

his hand that he was moving in the direction of the traffic flow. The area was very

dark and there was no outward sign of a R.I.D.E. (Reduce Impaired Driving

Everyone) check-stop/program and neither was the officer wearing a reflective traffic

safety vest.

12. Interpreting officer Katz’s actions as proceed with caution the plaintiff slowed down

and putting his window down approached the officer’s position at which time he

noticed another cruiser parked on the opposite shoulder behind a tow truck and

another vehicle.

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13. As the plaintiff slowly passed officer Katz he heard the officer yell at him, “Where the

fuck do you think you’re going?”

14. The plaintiff immediately stopped his vehicle. Upon approaching his window Katz

angrily and rather loudly spat out, “Do you not understand police signals to stop?”

15. The plaintiff responded, “I’m sorry officer, I thought it was an accident scene” and

was going to continue to say, “I thought you were waving me through” but was

interrupted abruptly by Katz leaning down and yelling in his face, “Identify yourself.”

16. Going into total shock at the intensity of Katz’s voice and demeanour of his

interrogation the plaintiff’s hands started shaking on the steering wheel.

17. The plaintiff never had a chance to even give his name to Katz who appeared visibly

upset at the plaintiff. Katz started shouting orders at the plaintiff: “Pull over there!,

Get out of the car!, Identify yourself!” These orders were being barked out at the

plaintiff like rapid fire to which he was simply unable to respond.

18. When the plaintiff asked Katz for his name the very question infuriated him for he

responded, “I don’t have to fucking identify myself to you.” While trying to respond to

the previous orders of Katz, the plaintiff is unsure of what exactly Katz said next, but

recalls feeling threatened by Katz’s words that he was going to drag him out of his

vehicle and beat the crap out of him.

19. The threatening words of Katz became scary actions when, after trying the door

handle and finding it locked, he lunged through the plaintiff’s open window and

pinned the plaintiff’s neck and chin against the back of his seat with his right arm.

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With his right elbow pressing against the neck of the plaintiff just under the chin the

plaintiff was being choked while Katz tried to undo the plaintiff’s seatbelt. All the

plaintiff could do to signal that he was being choked was try to pull at the arms of

Katz vainly due to the restrictions on his mobility.

20. While the plaintiff was pulling at the arms of the officer, Katz yelled, “I’m arresting

you right now for resisting arrest” and continued to try and undo the seatbelt while

pressing his right elbow into the neck of the plaintiff. The plaintiff was able to muffle

out the words, “I’m a peaceful man” and when Katz’s elbow shifted he was able to

frantically state, “I’m a man of peace. I will not resist arrest. There is no need for the

use of force or violence.”

21. Katz then yelled at his partner (the plaintiff does not know when his partner

approached his vehicle), officer Davidson, “Let’s get this fucker out of here!”

22. Katz ordered his partner to open the passenger door while yelling again, “Let’s get

this fucker out of here!” Being pinned the plaintiff could not reach and unlock the

passenger door and neither could Katz.

23. Katz repeatedly pushed his elbow hard against the neck of the plaintiff who was

pressed backward in his seat due to the weight of the upper body of the officer

pressing against his chest area while trying to undo the seatbelt.

24. When Davidson said, “It’s locked,” Katz yelled at him, “Smash the window.” When

Davidson hesitated, Katz yelled, “Do it!” “Do it now!”

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25. The pressure of Katz’s elbow pressing into the plaintiff’s neck and chin pinning him

backward into the seat was choking the plaintiff to the point that he couldn’t cry out

or breath and all he could do was grab at the left arm of Katz with his left arm

reaching under the upper body of Katz and try move the stick shift into neutral with

the limited use of his right hand. Upon sensing this Katz released his right arm to

aggressively strike the face of the plaintiff three times with his elbow raking off the

plaintiff’s glasses and breaking them in the process. The plaintiff managed to ask

Katz before being pinned back again, “Why would you do that when I’m not

resisting?” Katz did not reply.

26. At this point officer Davidson began hitting the passenger window with his ASP

baton and after five or six blows the window shattered. Davidson reached in and

opened the door. He then leaned inside the vehicle and grabbing the right arm of

the plaintiff, he literally dragged the plaintiff out over the passenger seat. The car

being a manual lurched forward as the plaintiff’s foot suddenly left the clutch,

endangering Katz and wrenching the plaintiff’s body over the stick shift between the

front seats. Due to the pressure from Katz’ pin hold against the neck and chin of the

plaintiff, his neck was violently wrenched to one side upon Davison’s sudden force

pulling his body to the right and through the open door.

27. The plaintiff was forcefully pulled out of the vehicle and thrown to the ground where

he was knelt on by both officers and roughly handcuffed. He was then dragged to

the side of the police vehicle where his head was forced down to the trunk of the

cruiser and frisked. He was then thrown head first into the rear seat of the cruiser.

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28. At this point the plaintiff was utterly traumatized by the speed and ferocity of the

assault by both officers. All he could do was keep saying to officer Katz, ‘That he

was a man of peace and that he will not resist arrest and he was just trying to get

home. That it appeared to be an accident scene, possibly someone hurt and now he

was being the one that was being hurt.’

29. Only while in the back seat of the cruiser was the plaintiff able to give his name and

date of birth to Katz.

30. At no time did the plaintiff resist arrest or even put up a struggle, and neither did he

assault either of the arresting officers.

31. While at the detachment the plaintiff, having been placed in a holding cell was

approached by the on duty sergeant and supervisor of officers Katz and Davidson.

Sgt. Rathburn questioned the plaintiff if he had anything to drink to which the plaintiff

replied, “Just a glass of wine at Hot Belly Mamas.” Hearing this officer Katz berated

him saying that he told him he had nothing to drink so as to imply to the sergeant

that the plaintiff had lied to him. However, it was not until Sgt. Rathburn asked the

plaintiff about drinking that the subject about having a glass of wine at Hot Belly

Mamas came up. The plaintiff told Sgt. Rathburn that he didn’t even know he had

entered a R.I.D.E. check-stop.

32. When Sgt. Rathburn left him the plaintiff heard Sgt. Rathburn in the next room

speaking to Katz questioning him, “Are you sure he assaulted you? Are you

absolutely sure?” He also heard Katz reply, “Yes, yes I’m sure.”

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33. After this interaction with the sergeant, Katz changed his tone of voice with the

plaintiff and handled him with "kid gloves" so to speak in so much that he referenced

him by his first name and told the plaintiff that he (plaintiff) must have had a “Lapse

of Judgement” back at the accident scene because he “seemed like a nice guy after

all” and released the plaintiff on a promise to appear for the charge of assault with

intent to resist arrest contrary to the Criminal Code of Canada and the same

promise to appear for the offence of failing to identify contrary to the Highway Traffic

Act, for which there is no legal authority for an officer to utilize as a method of

release. He then offered the plaintiff to sleep in a chair in the lobby of the

detachment since it was late and they didn’t want to see the plaintiff “come to harm”

and furthermore, his vehicle was in the pound which did not open until 8:30 am.

34. The plaintiff thought these comments from Katz were ironic considering the fact that

they had just assaulted him. All he wanted to do was get out of harms reach from

them. Unfortunately, due to the fact that there was a hockey game on in town there

were no hotels with available rooms. So the plaintiff was forced to spend the

remainder of the night in a coffee shop close to the pound.

35. The plaintiff was 58 years of age and is a frail individual, yet was charged with

failing to identify himself pursuant to the Highway Traffic Act and Assault with Intent

to Resist Arrest, pursuant to the Criminal Code of Canada.

36. He suffered cuts to his face, either from the shards of broken glass or from the

gravel of the shoulder when he was pinned face down.

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37. The plaintiff suffered injuries to his knee, ankle, Achilles tendon, shoulder and neck

in the process of arrest. He had to seek medical attention for his injuries and get

another pair of glasses.

38. The plaintiff is still suffering from the repercussions of these injuries. However, he

cannot afford to have them attended to by professionals and, as a result, is now

living an impaired lifestyle and not one that was dreamt of just 5 minutes before he

was set upon by those officers.

39. The plaintiff’s arrest was publicized in the local newspaper and that affected his

business as a barber. Many customers questioned his actions.

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The Plaintiff’s attempt to exonerate himself and the conduct

of the Assistant Crown Attorney

40. Though the plaintiff does have a conviction for assault on his criminal record that

dates back to 1990 that involved a domestic incident with his spouse, at that time,

he has always strived to be a law abiding citizen. He is by far, a peaceful man.

41. Being that the plaintiff was not able to qualify for legal aid and being that he was

self-employed, he was presumed to be financially capable of affording a lawyer to

defend himself. However, that was far from the truth. Since an average lawyer

wanted a substantial amount of money for retainer fees aside from their regular high

hourly rate the plaintiff had to settle for the services of a paralegal.

42. Though he hoped to get justice at a trial he was once again shocked and dismayed

at the words of Assistant Crown Attorney, Jim Hughes (‘Mr. Hughes’) of

Peterborough Courts. In a pre-trial on June 28, 2012, the plaintiff and his paralegal

were advised by Mr. Hughes that if he was to plead guilty there would be no jail

time, but if he was to ‘push for a trial’ then he would be seeking up to a year in jail

not to mention the legal costs of having someone represent him. It was not so much

the fact of possibly facing incarceration because that was already clearly stated on

the charge screening form in his disclosure package, but what was threatening was

that the crown would be seeking ‘up to a year in jail’ and ‘not to mention the legal

costs.’ The weight of these comments by the Crown Attorney was so heavy that,

though the plaintiff was innocent of these criminal charges and wanted to have his

day in court to expose those corrupt officers he had to now contend with the

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inevitable expenses that would add up and the possibility of facing incarceration for

up to a year for something he never did.

43. The plaintiff had hoped that the nightmare of his experiences at the hands of the

defendant officers would end that day in court, but it was exacerbated by the

comments of Mr. Hughes that left the plaintiff facing a painful decision that he had to

make.

44. The comments from Mr. Hughes were nothing but coercion to secure a guilty

plea. Referencing Mr. Hughes’ comments as a form of coercion is not a vain

pitch by the plaintiff to exonerate himself, rather it is a reality that he faced in

the Canadian Judicial System. An American author, Martin Yant discussed the

use of coercion in plea bargaining particularly in the United States:

‘Even when the charges are more serious, prosecutors often can still bluff

defense attorneys and their clients into pleading guilty to a lesser offense. As a

result, people who might have been acquitted because of lack of evidence, but

also who are in fact truly innocent, will often plead guilty to the charge. Why? In a

word, fear. And the more numerous and serious the charges, studies have

shown, the greater the fear. That explains why prosecutors sometimes seem to

file every charge imaginable against defendants.’

45. In Canada, particularly in Ontario, Justice Marc Rosenberg of the Ontario Court of

Appeal, as quoted by the Globe and Mail in an article published on Monday, March

7, 2011, regarding a weekend legal conference condemned plea bargaining citing it

as a form of coercion that tempts an intolerable number of innocent people into

pleading guilty to avoid a harsh sentence. Specifically Justice Rosenberg said this

about coercion in plea bargaining:

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"The system has become coercive and abusive," said Judge Rosenberg,

regarded by many to be the finest criminal law mind in the country. "I'm not sure

how we came to a place where a coercive way is a legitimate way of doing

practice. The inducement to plead guilty is too extreme. The inducement is

leading to coercion."

46. Mr. Hughes abused his position of authority and trust. The statements of the two

officers were inconsistent. The promise to appear that was used to release the

plaintiff on the two charges lacked jurisdiction. There simply was no authority for an

officer to use a promise to appear to release an individual charged with a provincial

statue offence - failing to identify contrary to the Highway Traffic Act. Hence the

provincial information for this HTA charge simply could not be confirmed in light of

the missing release. Furthermore, the officers’ statements and the synopsis for the

charges specifically state and describe the actions of the plaintiff as ‘resisting arrest’

and not assaulting the officers.

Katz’ statement: (1st para. Pg. 2 of 4)

“I made multiple verbal commands to the male to stop resisting, as he was

grabbing my left coat arm as I was trying to unbuckle his seatbelt.”

Synopsis from disclosure:

‘ … He verbally was told to get out of the car as he was under arrest but refused.

This lead to as altercation where it appeared the driver was going to drive away

forcing P/C J. Katz to lean inside the vehicle in an attempt to unlock the door and

remove the driver as he was yet not identified.’

(Emphasis added)

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Granted the defendant did not know any better, the integrity of the judicial system

comes into question when a learned crown attorney overlooks these errors and

coerces the plaintiff into pleading guilty.

47. Should the defendants take the position that ignorance of the law is no excuse then

the plaintiff points out that section 19 of the Criminal Code specifically deals with the

defense of ignorance not being an excuse for committing an offense.

48. Furthermore, the very sight of the plaintiff ought to have caused the Crown Attorney

to question the degree of force used by the two officers: pinning his neck back into

the seat, the smashing of the front passenger window, forcefully dragging out the

plaintiff through the passenger side and then handcuffing him roughly on the

ground. What was the serious offence that the plaintiff had committed to warrant

such an excessive use of force?

49. It is the plaintiff’s firm belief that the Crown Attorney wanted to get another matter,

which was probably on his list, over and done with quickly, with another conviction

and so he presented the plaintiff with two options.

50. Even his paralegal failed to pick up on the lack of jurisdiction on one of the releases

and subsequent lack of confirmation on the provincial information. However, even if

his paralegal had picked up on these flaws the plaintiff simply did not have the

financial capability to proceed on to a trial. He was trapped.

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51. The plaintiff was also a victim of an adversarial judicial system that caters only to

persons who can afford the exorbitant fees lawyers tend to charge and coming short

of that, innocent people who simply cannot qualify for legal aid are left facing such

options as put forth by crown attorneys who, knowing this malady seek to get more

convictions on their list of cases for the day.

52. This adversarial judicial system was headline news in a June, 2013, article by the

Globe and Mail that opened with the following thesis:

An Ontario judge has turned a routine decision into a scathing critique of the

province’s justice system, warning its courts are increasingly “only open to the

rich.”

53. Ontario Superior Court, Justice D. M. Brown who was interviewed by the Globe and

Mail, in speaking about the civil justice system was indirectly speaking about the

criminal justice system as well:

“Such a state of affairs reflects an unacceptable failure on the part of our civil

justice system,” Justice Brown wrote in his June 25 decision. …

“If we have reached the point where $800,000 cannot buy you a defense to a

$1.2-million fraud claim, then we may as well throw up our collective hands and

concede that our public courts have failed and are now only open to the rich,” he

writes.

54. Faced with these comments along with his paralegal’s advice, that it really is a good

offer by the crown attorney and that he could get on with his life by putting this

behind him, the plaintiff conceded against his better judgement and pleaded guilty,

hoping to at least have the presiding judge ask him if he had anything to say but

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was surprised when that did not happen. He was simply not afforded the opportunity

to say anything and neither was his counsel allowed to say anything.

55. In fact the presiding judge told him that ‘The police had every right to use what force

was necessary, it was his fault and that he was lucky.’

56. Ever since pleading guilty, the plaintiff has had no peace of mind. He has been

tormented by the thoughts of being forced to plead guilty to something that he was

innocent of. He spent time trying to find a lawyer to pursue an action against the

defendants, but only found out that he could not afford the retainer and subsequent

fees.

57. It wasn’t until he was talking to a customer of his who had a son who was roughed

up by the same arresting officers and was advised that officer Katz was once before

the courts on charges of Assault Causing Bodily Harm that he was placed in touch

with someone that could offer him hope of clearing his name and some form of

justice.

58. He was put in touch with Lloyd Tapp and through his assistance was able to file this

notice.

59. It is the plaintiff’s belief that the actions of the individual defendants working in the

capacity as on-duty uniformed officers and as representatives of the crown are

reflective of the liability of the corporate respondents, the Ontario Provincial Police

and the Attorney General of Ontario.

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60. Through this action the plaintiff is hopeful to exonerate himself of the false charges

that he was coerced into pleading guilty to and/or at least have the opportunity to

hold the defendants accountable for the injustice they put him through.

The reprehensible actions of the officers

61. Given the description of the plaintiff as outlined in item 5, one must wonder what

serious crime did the plaintiff commit, to have been attacked so savagely by the two

officers, have his passenger window smashed, door opened and then literally

dragged out like a rag doll.

62. The officers were experienced and had at their disposal the Canadian Police

Information System (CPIC) and the Ministry of Transportations of Ontario (MTO)

registry easily accessible via their communications operator to obtain registration

information regarding the registered owner of the vehicle. The officers could have

subsequently attended his address, confirmed that he was the operator of the

vehicle and then issued him a summons for failing to identify himself contrary to the

HTA, yet the officers failed to do so.

63. Even if the plaintiff did refuse to identify himself, he wonders if the Ontario Police

College and the Ontario Provincial Police Academy teaches new recruits and/or

officers in their use of force qualification exercises that when confronted by a driver

that is failing to identify himself and trying to drive away to make an effort to lunge in

through the driver’s window, if open and try to pull the driver out. Failing that, if

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possible, smash the passenger window and drag the driver out through the door

while the vehicle is still in drive.

64. The use of force that was used on the plaintiff was contrary to provincial guidelines

and the use of force model that is accepted and recognized by this provincial

government as outlined below. The plaintiff was not striking out or punching at the

officers rather, he was trying in a vain attempt to pull at the arm of an officer that

was much larger than him and so aggressively pinning him back into the seat that

he was being choked. At the worst possible scenario he was demonstrating passive

resistance. Hence, according to the use of force model the officer should have been

using soft hand techniques to intermediate weapons in trying to gain physical

control of the plaintiff. However, being that the vehicle was still in the drive gear

utilizing any pepper spray as an intermediate weapon was not an option for that

would run the risk of the driver going into shock and possibly accelerating away into

a serious life threatening accident. The only possible option would be the soft hand

techniques wherein the scenario as mentioned in item 62 would fit.

Ontario’s Use of Force Model

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65. The actions of Cst. Katz in threatening to drag the plaintiff out of the car and

beat

the crap out of him and then assaulting him three times by striking him on the face

was contrary to sections 264.1(1)(a) and 266 of the Criminal Code of Canada.

66. The actions of the officers in treating the plaintiff like a rag doll by assaulting him

and then dragging out through a smashed window over all possible interferences

between his seat and the ground of the roadway are simply reprehensible. To quote

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the plaintiff in his statement which he prepared on January 29, 2012, regarding what

happened:

“All this occurred over the course of five or ten minutes. Don’t quote me. As you

can imagine, I was scared shitless by now.”

(Emphasis added)

The deceit of the officers

67. The memorandum notes and accompanying statement of Cst. Katz imply that a

brief dialogue occurred between him and the plaintiff wherein he explained that it

was a R.I.D.E. checkstop and that he was to stop next time. As the extract below

indicates, apparently the plaintiff simply gave one word answers of, ‘No’ to a series

of demands or orders from Katz. The truth is, that the entire series of entries here in

the Katz’s memorandum book are nothing but lies and not knowing anything about

the plaintiff and how he is prone to speak or respond all Katz could provide in the

contrived responses were single word answers of ‘No.’

Katz’s statement (pg. 1 of 4):

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68. These one word responses are in stark contrast to an individual that in an initial

opening dialogue with an officer explains that he thought there was an accident and

only had to slow down. The truth is the entire one word response dialogue did not

occur as Katz portrays, but rather occurred the way the plaintiff puts it with a series

of orders and demands being barked out at him in rapid fire. The capitalization of

the words of Katz in the first paragraph of the insert above, “I told him – NO it’s a

RIDE check …” suggests anything, but a calm approach. After all the officer simply

had to, upon approaching a motorist that apparently failed to recognize his direction

to stop the vehicle, state, “this is a RIDE check Sir, and it looked like you were

failing to stop, I need you to pull over to the side so that I can talk to you.”

Furthermore, these capitalized words do suggest a different tone than the tone of

the initial opening dialogue. More peculiar is the fact that according to Katz the

plaintiff actually stopped his vehicle after hearing the officer yell at him to stop and

was explained what to do the next time when entering a R.I.D.E. checkstop (‘Stop

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next time’) and then abruptly states ‘No’ when told to produce his driver’s license,

ownership and insurance. This change in behavior of the plaintiff is simply not his

nature being that he is a man of peace.

69. The plaintiff believes that when Katz was writing up his notes at the detachment he

was mindful that section 33 of the HTA requires an officer to demand that the driver

produce his documents namely his driver’s license and subsection 3 gives an officer

authority to demand that a driver identify himself in the absence of producing a

driver’s license. The authority for arrest is in this subsection whereby a driver

refuses or fails to identify himself. Hence, it is very convenient for Katz to simply

note in his memorandum book that he asked the plaintiff to produce his driver’s

licence, ownership and insurance and write a simply one word answer of ‘No’ since

he had to make up his grounds for the arrestable offence of failing to identify.

As to carrying licences and surrender on demand

33. (1) Every driver of a motor vehicle or street car shall carry his or her licence

with him or her at all times while he or she is in charge of a motor vehicle or street

car and shall surrender the licence for reasonable inspection upon the demand of a

police officer or officer appointed for carrying out the provisions of this Act.

R.S.O. 1990, c. H.8, s. 33 (1).

Same, re novice driver rules

(2) Every accompanying driver, as defined under section 57.1, shall carry his or

her licence and shall surrender the licence for reasonable inspection upon the

demand of a police officer or officer appointed for carrying out the provisions of

this Act. 1993, c. 40, s. 3.

Identification on failure to surrender licence

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(3) Every person who is unable or refuses to surrender his or her licence in

accordance with subsection (1) or (2) shall, when requested by a police officer or

officer appointed for carrying out the provisions of this Act, give reasonable

identification of himself or herself and, for the purposes of this subsection, the

correct name and address of the person shall be deemed to be reasonable

identification. 1993, c. 40, s. 3.

Section 217(2) of the Highway Traffic Act provides:Any police officer who, on reasonable and probable grounds, believes

that a contravention of any of the provisions of subsection … 33(3)…

has been committed, may arrest, without warrant, the person he or she

believes committed the contravention.

70. Though the plaintiff believes there can be a lot more picking apart so to speak of

Cst. Katz’s lies in his memorandum book entries and accompanying statement he

points out that the statutory questions after one is read or advised of their rights to

counsel, aside from not being complied with in entirety simply do not reflect answers

that he would respond with and are in contrast, once again to those one word

responses that he supposedly made. Furthermore, Katz appears to be so

meticulous in noting questions and answers during his interaction with the plaintiff

yet fails to note the two times he supposedly questioned the plaintiff if he had

anything to drink to which the plaintiff responded that he had not. These questions

that he supposedly asked twice, one would imagine, are standard questions to any

officer doing a R.I.D.E. program. Yet, nowhere in Katz’s notes are there any

notations of these questions and answers. The truth is, they were not asked and

Katz found it rather convenient to doctor his notes to reflect such a conversation and

26

to pose such a statement in the presence of his sergeant so as to raise the

inference that the plaintiff was lying.

71. Though Cst. Davidson maintains a somewhat neutral view in his documentation of

the incident he does note that the plaintiff was displaying passive resistance and in

doing so corroborates the use of force model that does not condone the level of

force used. The plaintiff wonders why Cst. Davidson would see the need to write in

his memorandum book that during the release of the plaintiff there were ‘no

complaints, i.e. any injury or police misconduct through the entire interaction.’ The

truth is, the plaintiff was brutally set upon by the two officers, namely Katz, had his

glasses broken, vehicle impounded and false charges applied against him so how

could he possibly say anything or even complain and Davidson knew that police

misconduct had occurred and so hoped to deflect any allegations by making a

documentation in his notes that there were no allegations of police misconduct. The

only wrong that the plaintiff saw he did was to mistake the scene he was coming

upon as an accident scene and not a R.I.D.E. scene and for that he had already

apologized repeatedly.

OBJECTIVE ANALYSIS

27

Violations of OPP Police Orders

Authority

72. OPP Police Orders state that when officers conduct R.I.D.E. checkstops certain

mandatory requirements have to be carried out:

- Officers have to identify the area with clearly visible markers using the

supplied orange traffic cones, emergency lights activated and police safety

vests worn on the outside of their clothing.

- Furthermore, the conducting officers have to use an orange plastic cone,

which is supplied to every officer over the tip of their flashlight.

73. Specifically OPP Police Orders state:

2.37.16: REGION RIDE CHECKSTOP

Introduction As their primary function, region Reduce Impaired Driving

Everywhere (RIDE) teams shall enforce drinking and drug laws relating to motor

vehicles, MSVs and vessels, and are intended to supplement but not replace the

detachment RIDE Checkstop Initiative.

Team Operations The time/location/duration of RIDE team operations should be

determined by traffic collision analysis and input from Regional and Detachment

Planning Committees.

Uniform Member A uniform member conducting the region RIDE Checkstop will

inform motorists that the checkstop is being conducted to identify and apprehend

impaired drivers.

Safety Equipment A uniform member operating at the checkstop location shall

utilize all the safety equipment provided.

Responsibilities

Regional Manager The regional manager, traffic and marine shall co-ordinate the

region RIDE team operational schedule within the region.

28

Uniform Member The uniform member in charge of a RIDE team may divert the

team from assigned duties should an emergent situation occur during a tour of

duty.

Regional Commander The regional commander may authorize the use of the RIDE

team for planned non-RIDE initiatives within the region, e.g. special enforcement

initiatives, traffic control at major functions.

74. Every OPP officer is issued standard equipment to be used in the execution of their

duties which includes a yellow reflective traffic safety vest and an orange reflective

cone that is affixed to the front end of their issued flashlight as part of this standard

equipment.

75. Every police vehicle assigned to a detachment does have in its trunk mandatory

items that are provided for use by an officer during their duties. Every Sunday

morning all police vehicles at Detachments are checked by day shift officers who

ensure that the mandatory items are present in accordance with a detachment

police vehicle checklist. Each vehicle has a checklist that is maintained by the

respective detachment. Included as mandatory items for a detachment police

vehicle trunk are six orange traffic safety cones, one box of traffic flares and two

safety vests (these safety vests are over and above the individual officer issued

safety vest).

76. Every police officer in this province receives training at the Ontario Police College

(OPC) and every Ontario Provincial Police Officer receives additional training at the

Provincial Police Academy (PPA) in Orillia. This additional training is not intended to

replace the training at the OPC but to supplement it and teaches the officers about

29

the OPP and specifically OPP Orders. OPP Orders identify the methods of release

of a person arrested for a Provincial Offence matter and these methods of release

are congruent with the Provincial Offences Act taught at the OPC.

2.41.3: PROVINCIAL STATUTE OFFENCE

Arrest & Detention Where a person is under investigation for a provincial statute

offence, the investigating member shall, prior to deciding whether or not to arrest

the accused, consider whether or not the offence is in fact arrestable under

provincial law, and whether or not the accused's detention is necessary in the

public interest, having regard to the pre-trial release provisions of the

Provincial Offences Act (POA).

Release Procedures Where, in considering the release of a person under

investigation for a provincial statute offence, uniform members determine that the

public interest is not satisfied and the offence is one where arrest may be made

without warrant, they may detain the accused and, at any time subsequent prior

to delivering the accused to the officer-in-charge, may release the accused by

issuing Form LE036—Offence Notice or Summons, or Part III Summons.

Where the accused is arrested for a provincial statute offence and taken before

an officer-in-charge, they may be released on the issuance of a Form

LE036—Offence Notice or Summons, a Part III Summons or upon the accused

entering into a recognizance in the prescribed form.

Application

77. Aside from what is contained in items 10 through 12, the plaintiff points out that

according to officer Davidson, the R.I.D.E. checkstop was not something that was

planned, but rather it was an undertaking suggested by Katz while they awaited a

tow truck and it was during this undertaking that the plaintiff met his demise. It is the

30

plaintiff’s position that such as the case was, the officers did not deem it necessary

to make the area readily noticeable to motorists that they were entering a R.I.D.E.

checkstop. Davidson’s transcribed notes: (page one)

22:55 – 12:04

‘- Attend area, asks me to do RIDE with him whilst we wait, agree. Fitzsimmons

tow arrives, …’

(Emphasis added)

78. Aside from what is mentioned in item 10, the plaintiff points out that he genuinely

believed he was approaching an accident scene and that his actions of slowing

down and proceeding with caution were congruent with information put out by the

Ministry of Transportation in the Service Ontario website with respect to what a

motorist should do when approaching a stopped police vehicle with its lights

flashing:

What should I do when I approach a stopped police vehicle with its lights

flashing?

‘To increase safety, Ontario’s Highway Traffic Act requires motorists to slow down

and pass with caution when approaching a police, fire or ambulance vehicle, with

its red lights flashing, stopped in the same direction of travel…’

(Emphasis added)

79. As mentioned in item 33, Katz utilized a criminal release for a provincial offence

instead of a provincial release.

Violations

31

80. Officers Katz and Davidson who were conducting the R.I.D.E. checkstop were not

wearing safety vests.

81. Officer Katz was standing in the middle of the roadway that was dimly lit with

emergency lights of the police vehicle on the shoulder, the headlights of the tow

truck on the opposite shoulder and a flashlight in his hand that had no orange cone

on it. The plaintiff could barely see the dim light emanating from the front of the

flashlight and not an orange coloured light.

82. Though the police vehicles that were parked on the shoulders of the roadway had

their emergency lights activated there were no orange traffic safety cones on the

roadway and/or neither were there any flares set up to alert motorists that maybe

this was more than a possible accident scene especially since the officers were

intending on being present at the location for a while conducting a R.I.D.E.

checkstop.

83. The absence of the issued equipment on the officers and on the roadway left the

plaintiff genuinely believing that he was approaching an accident scene. More so

the absence of this issued equipment contravened section 2.37.16 of OPP Police

Orders.

84. Cst. Katz in releasing the plaintiff on a promise to appear for a provincial statute

offence contravened OPP Police Orders 2.41.3.

Violations of the Police Services Act

32

Authority

85. Ontario Regulation 268/10 made under the Police Services Act details the code of

conduct of police officers and governs the use of force by police officers:

CODE OF CONDUCT

2. (1) Any chief of police or other police officer commits misconduct if he or she engages in,

(a) Discreditable Conduct, in that he or she,

(v) uses profane, abusive or insulting language or is otherwise uncivil to a member of the public,

(xi) acts in a disorderly manner or in a manner prejudicial to discipline or likely tobring discredit upon the reputation of the police force of which the officer is a member;

(c) Neglect of Duty, in that he or she,

(iii) fails to work in accordance with orders, or leaves an area, detachment, detail or other place of duty, without due permission or sufficient cause,

(vi) fails to report a matter that it is his or her duty to report,

(vii) fails to report anything that he or she knows concerning a criminal or other charge, or fails to disclose any evidence that he or she, or any person within his or her knowledge, can give for or against any prisoner or defendant,

(d) Deceit, in that he or she,

(i) knowingly makes or signs a false statement in a record,

(ii) wilfully or negligently makes a false, misleading or inaccurate statement pertaining to official duties, or

(g) Unlawful or Unnecessary Exercise of Authority, in that he or she,

(i) without good and sufficient cause makes an unlawful or unnecessary arrest, or

(ii) uses any unnecessary force against a prisoner or other person contacted in the execution of duty;

Application

33

86. The Code of Conduct is reflected in the actions of the OPP defendants as

mentioned in items 13 through 24 of this action.

87. Further to what is mentioned in item 25, the plaintiff points out Katz’s

acknowledgement in his notes of striking the plaintiff one to three times corroborates

the plaintiff’s version of events.

‘… resisting. I elbowed him 1 – 3 X in face meant to prevent him from coming

forward and also to stop him from assaulting me. …’

(Emphasis added)

88. The plaintiff stresses that the only assaulting going on was that of Katz, since it was

impossible for him to push Katz’s body away from him due to the weight of his upper

body pressing against him and the steering wheel as referenced in this photograph

that the plaintiff had taken to recreate the scene. The plaintiff used someone as

large as Katz and had this person lean into his vehicle, the same vehicle that he

was driving on the date he encountered Katz and Davidson.

34

85. Items 26 to 33 of this action further reflect actions of the OPP defendants that do not

appear to be congruent with the Code of Conduct.

Violations

89. Cst. Katz was on duty at the time and he did use profane, abusive and insulting

language and was otherwise uncivil to a member of the public, the plaintiff. In so

doing, he committed Discreditable Conduct contrary to section 2(1)(a)(v) of Ontario

Regulation 268/10 of the Police Services Act of Ontario.

90. Cst. Davidson was on duty at the time and upon returning to the detachment did fail

to report a matter that it was his duty to report, that being the discreditable conduct,

as outlined above, of Cst. Katz to his supervisor, Sgt. Rathbun and in failing to do so

35

did commit the offence of Neglect of Duty contrary to section 2(1)(c)(vi) of Ontario

Regulation 268/10 of the Police Services Act.

91. Cst. Davidson did further commit the offence of Neglect of duty when he failed to

report the repeated assaults of the plaintiff by Cst. Katz while he leaned inside the

plaintiff’s vehicle via the driver’s window contrary to section 2(1)(c)(vi) and (vii).

92. Cst. Katz did lie to Sgt. Rathbun when asked if he was sure he was assaulted and

this lie of his resulted in charges being laid against the plaintiff and false

informations being sworn to. The lies of Cst. Katz constitute a variety of offences

contrary to Ontario Regulation 268/10 of the Police Services Act namely offences of:

Discreditable Conduct contrary to section 2(1)(xi); Deceit, in that he knowingly made

and signed false statements in a record namely the contents of the crown brief that

he prepared for prosecution contrary to section 2(1)(d)(i); Deceit, in that he willfully

and negligently made false, misleading and inaccurate statements pertaining to

official duties as recorded in his memorandum book and as disclosed in the

disclosure copy of the crown brief provided to prosecution contrary to sections 2(1)

(d)(ii).

93. Cst. Davidson did commit the offence of Deceit, in that he willfully and negligently

made false, misleading and inaccurate statements pertaining to official duties by

omitting to note in his memorandum book (as reflected in the disclosure copy of his

memorandum book) regarding the assaults of Cst. Katz on the plaintiff. In doing so

Cst. Davidson did convey the real impression that he and Cst. Katz acted within the

law and that the plaintiff was disorderly, contrary to section 2(1)(d)(ii).

36

94. Cst. Davidson in noting in his memorandum book that the plaintiff had no complaints

of injuries or police misconduct did raise the inference that plaintiff was not

complaining of injuries or any police misconduct thereby raising the inference that

there was no misconduct on the part of the police. These entries of his were willfully

false, misleading and completely inaccurate statements pertaining to official duties

contrary to section 2(1)(d)(ii).

95. Cst. Katz actions of leaning into the interior of the plaintiff’s vehicle and pinning the

plaintiff against his seat based on the presumption that the plaintiff was about to

leave the scene was an unnecessary exercise of authority (for the plaintiff had

shown adequate compliance to suggest that he was not a real threat of any kind)

contrary to section 2(1)(g).

96. As mentioned earlier in item 62 the identity of the registered owner of the vehicle

could have been easily obtained through softer methods and the officers would

have ascertained the identity of the plaintiff and issued him with the appropriate

summons under the authority of the Highway Traffic Act and even, if need be

obstructing a peace officer engaged in the lawful execution of his duties contrary to

the Criminal Code of Canada. This unnecessary exercise of authority was without

good and sufficient cause thereby contrary to section (2)(1)(g)(i).

97. Though the reason for the arrest can be questioned because according to the

plaintiff Cst. Katz left him no time to respond to his series of questions and/or orders

because they were literally being barked out at him in rapid fire and even if Katz did

believe that the plaintiff was failing to identify himself the plaintiff questions the need

to effect such an arrest when dealing with a person behind the wheel of a vehicle in

37

gear, on an open highway and where the danger to life is real. For these reasons

the plaintiff believes Cst. Katz engaged himself in an unnecessary arrest contrary to

section 2(1)(g)(i).

98. It is also the plaintiff’s position that the arrest was unlawful because, because Katz

had not complied with the requirements of section 33(1) of the HTA and had he

been given the opportunity to respond to Cst. Katz’s questions and/or orders he

would have identified himself. Hence, everything that ensued afterwards was ‘fruit of

the rotten tree’ so to speak.

99. The actions of Cst. Katz in assaulting the plaintiff three times while pinning the

plaintiff back in his seat, aside from being criminally wrong was an unnecessary use

of force against a person contacted in the execution of his duties and the

subsequent extraction of the plaintiff by both officers (each of whom are larger than

the plaintiff) via a door on the passenger side was an unnecessary use of excessive

force contrary to section 2(1)(g(ii).

100. Cst. Katz in releasing the plaintiff on a promise to appear for a provincial statute

offence also contravened section 2(1)(c)(iii) in that he failed to work in accordance

with orders.

101. Overall, for the offence of failing to identify contrary to the Highway Traffic Act, the

level of force used and the manner in which it was used was simply unnecessary

because it was unlawful. Furthermore, were it not for Cst. Katz leaning into the

vehicle and seizing the plaintiff to effect the arrest there would not have been the

charge of assault with intent to resist arrest.

38

Offences contrary to the Criminal Code of Canada

102. As mentioned earlier in item 25, the actions of Cst. Katz were contrary to sections

264.1(1)(a) and 266 of the Criminal Code.

103. The plaintiff knows he is right in his belief that he was deprived of a right to say

anything during judgment. Had he been allowed to say anything the court and the

crown would have realized that he was not pleading guilty freely and voluntarily. All

he has to offer is his explanation as to why or what prompted him to plead guilty to

something he was innocent of, along with the lies as pointed out in this action, his

belief that the charges were false and a transcript of the proceedings that he applied

for in July 2013, but has not yet received as of the date of this claim. The plaintiff

insists that he was coerced into making such a plea by the Assistant Crown Attorney

Jim Hughes who handled his file on December 29th, 2011.

104. Should this action against the defendant OPP and the named officers be found in

favor of the plaintiff then the question to be rightfully asked is what credibility was

there regarding the charges that were applied against him and what would prompt

the plaintiff to plead guilty to something that he was innocent of? The plaintiff’s

explanation in items 42 to 54 is the only truthful answer – he was coerced into

making such a plea.

105. Should this Honourable Court find that the plaintiff was innocent as charged then

the plaintiff submits that the individual OPP defendants did, with intent to mislead,

fabricate evidence by doctoring their notes and information to support a guilty plea

39

of the offences charged against the plaintiff in a proposed judicial proceeding

against the plaintiff contrary to section 137 of the Criminal Code of Canada.

106. The plaintiff believes that the criminal offences of officer Katz did mislead Davidson

into becoming a party to these offences that resulted in a false arrest, false

incarceration at the detachment and false charges.

Infringement of the Charter of Rights and Freedoms

107. Some of the Legal rights of every Canadian citizen are entrenched in sections 7

through 12 of the Charter of Rights and Freedoms (Charter).

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Marginal note: Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Marginal note: Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Marginal note: Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Marginal note: Treatment or punishment

40

12. Everyone has the right not to be subjected to any cruel and unusualtreatment or punishment.

Application

108. As pointed out in items 67 and 69, the grounds for the arrest of the plaintiff for the

offence of failing to identify contrary to the HTA were contrived and completely false.

This is evident in what has been haunting the plaintiff ever since he encountered

those two officers. Katz in fact notes that the plaintiff is a man of peace. The plaintiff

wonders how a man of peace or a law-abiding man can simply say ‘No’ to an officer

at a traffic stop when asked to produce his license, ownership and insurance. The

plaintiff knows that it is the law to carry these essential pieces of identification when

operating a motor vehicle and surrender them upon demand by a police officer so

why would he say, ‘No.’

109. Katz in approaching his motor vehicle was angry and upset at the plaintiff for not

recognizing his actions to stop and so abuses him verbally (items 13 to 15) , cuts

him off mid-sentence (item 15) and then demands that he identify himself which is

under the authority of section 33(3) of the HTA. In doing so Katz skips section 33(1).

110. The order that was ‘barked’ out at the plaintiff by Katz, ‘Identify yourself’ was not a

demand for him to produce his driver’s license and neither could it be construed as

a demand to produce his vehicle ownership or insurance slip. Simply put, it was a

demand for the plaintiff to verbally identify himself to the officer under section 33(3)

of the HTA.

41

111. The plaintiff did have these pieces of documentation all along but was never asked

to produce them. Had he been asked or given the opportunity to produce them he

certainly would have done so because he is a man of peace and a law-abiding

citizen.

112. Officer Katz in his notes states that he told the plaintiff that he would be arresting

him for failing to identify to which the plaintiff replied ‘No’. This response, aside from

being a complete lie, is simply not consistent with a man of peace.

‘I told him this was his last chance to tell me verbally who he was or I would be

arresting him. Driver asked me for what. I told him HTA driver fail to identify. He

quickly said No.’

(Emphasis added)

113. Though the plaintiff was not conversant with the law regarding a police officer’s

powers of arrest under the Criminal Code or the HTA, he knew enough to wonder

what arrest he was resisting for Katz to tell him that he was arresting him for

resisting arrest.

‘The large angry officer lunged at me and came through the window at me full

speed. Pinning me to the seat he stuck his elbow in my neck choking me and

tried to unbuckle my seat belt. The officer yelled, “I’m arresting you right now for

resisting arrest.” Although no charges for the arrest that I was supposedly

resisting had been read I said loudly several times that, “I am a man of peace, I

will not resist, there is no need for the use of force or violence.” This should be

part of the log of the officer.’

42

(Emphasis added)

The shock of the plaintiff was very real and it made him cry out to Katz, “I am a man

of peace, I will not resist arrest, there is no need for the use of force or violence.”

114. Had Katz have actually told him that he was arresting him for failing to identify as

purported in his (Katz’s) memorandum book entries there would have been no need

for the plaintiff to wonder what arrest he was resisting.

115. What Katz describes in his notes and in the synopsis of charges is a resistance to

the arrest and even states it as such and hence the appropriate charge ought to

have been resisting arrest contrary to section 129(1)(b) of the Criminal Code and

not contrary to section 270(1)(b). However, this is something that ought to have

been picked up by the assistant crown attorney during the charge screening stage.

116. Further to what is already stated under the heading ‘The deceit of the officers’

(items 67 to 71) the plaintiff points out that it should be noted that Katz’s own notes

indicate he told Katz that he didn’t understand anything and yet Katz failed to

explain the reasons for his arrest other than state, ‘OK but your charged’ followed

with another question ‘Do you want a lawyer?’

Katz’s notes: (pg 2 of 15)

‘Accused advised of his charges: Fail to ID and Resist Arrest. Provided his RTC

as per Charter Inc. 1-800 #

Q – Do you understand?

43

R – I don’t understand anything.

Q – What don’t you understand (me)

R – I just wasn’t to go home. I didn’t know what you wanted.

Q – Okay, but your charged (me)

Q – Do you want a lawyer?

R – No, I’m going to exercise my rights and remain silent.

(me) – Okay, at Det(achement) if you want to call a lawyer just let me know.’

(Emphasis added)

Infringement

117. In the absence of Katz’s compliance with the requirements of section

33(1) of the HTA the plaintiff contends that his liberty and security and the right

not to be deprived thereof except in accordance with the principles of

fundamental justice have been infringed contrary to section 7 of the Charter.

118. Cst. Katz and Cst. Davidson in using force to extract the plaintiff from his

vehicle via the passenger door and then searching him violated the rights of an

individual to be secure against unreasonable search or seizure contrary to

section 8 of the Charter.

119. The subsequent detention of the plaintiff in the cruiser and at the

detachment was contrary to section 9 of the Charter.

120. As mentioned in item 116, Katz’s negligence here was an infringement of

his rights under section 10 of the Charter.

44

121. Though the plaintiff thinks that section 12 of the Charter normally deals

with the treatment of an individual by the government or judicial system he

does assert that his overall treatment in how his window was smashed and

how he was dragged out through the passenger door much like a rag doll for

allegedly failing to identify himself was cruel and unusual treatment and thereby

consistent with an infringement under this section.

Violation of the Oath of Office

122. The Ontario Public Service requires its employees, as independent agents of the

crown, to take an oath of office that is covered under Ontario Regulation 373/07

made under the Public Service of Ontario Act. The oath is as follows:

Oath or affirmation of office

3. (1) The following oath or affirmation of office is prescribed for the purposes of

section 6 of the Act:

“I swear (or solemnly affirm) that I will faithfully discharge my duties as a public

servant and will observe and comply with the laws of Canada and Ontario and,

except as I may be legally authorized or required, I will not disclose or give to any

person any information or document that comes to my knowledge or possession by

reason of my being a public servant. So help me God. (Omit this phrase in an

affirmation.)”

123. The OPP defendants did fail to comply with the laws of Ontario as outlined in the

45

violations of OPP Police Orders, PSA, Criminal Code of Canada and the Charter of

Rights and Freedoms.

Violation of Ontario Public Service’s Guide on Ethical Conduct

124. As members, the OPS expects its employees to adhere to level of ethical conduct

that exemplifies integrity and impartiality so as to uphold the public trust in providing

the highest level of service quality.

125. The actions of the OPP defendants were in violation of this code of ethics and did

shatter the trust of one of the citizens of Ontario, the plaintiff as referenced in items

13 through 34 and later summarized in item 66.

46

126. It is the plaintiff’s belief that the actions of the defendant Jim Hughes were also a

violation of this code of ethics as referenced in items 43 to 46.

Similar fact evidence

127. This is not the first time Cst. Katz has victimized a member of the public. In fact he

was charged with assault on or about February 1, 2000, regarding an incident

involving a citizen in Sudbury on October 30, 1999. Katz partner was charged with

assault causing bodily harm.

‘Kingsley was charged with assault with a weapon, while Const. Jason Katz faced

one charge of common assault after a Thunder Bay man, Mike Cloutier, claimed

both officers used excessive force during an arrest Oct. 30, 1999. Following a

lengthy investigation by the North Bay OPP, both Kingsley and Katz were

charged. Kingsley has not returned to active duty since being charged, but has

been getting full pay while working desk duties.’

128. Furthermore, Cst. Katz and Cst. Davidson are currently among other named officers

from the Peterborough Detachment of the OPP wherein the plaintiff in that action

alleges he was stopped by Cst. Katz as part of a traffic stop and suffered assault

causing bodily harm at the hands of Katz.

47

Man claims he was roughed up by OPP officers on New Year's DayBy Sarah Deeth, Peterborough ExaminerWednesday, January 4, 2012 3:07:56 EST AM

A 24-year-old man said he's filing a complaint against members of the

Peterborough County OPP detachment after officers allegedly roughed him up

New Year's Day.

Josh Kukemueller, a carpenter with the Carpenter's Local 397, told The Examiner

he was detained, handcuffed, kneed and shoved by three OPP officers after he

was pulled over on Hwy. 28 at about 2:45 a.m. Sunday.

Peterborough County OPP Const. Iain McEwan said the OPP aren't commenting

on the incident, stating that no charges were laid and police consider the issue to

be resolved.

Kukemueller, a Catchacoma resident, said he had driven to a house party on

Stoney Lake Rd. to pick up a friend.

Because he was the designated driver he wasn't drinking, he said, and he sat in

the driveway idling for a few minutes.

Kukemueller said an OPP cruiser drove past the house three times before he

pulled out of the driveway. He turned off Stoney Lake Rd. and onto Hwy. 28 when

the OPP cruiser caught up to him.

He said the officer knew his name and asked him if he was drinking before taking

his licence and registration. Ten minutes later the officer came back, he said,

again asking him if he was drinking.

The officer then began examining the car, he said, asking if the exhaust system

was legal, if a package of DK cigarettes, purchased at Curve Lake, were illegal

and whether there was any marijuana in the vehicle.

48

By then, Kukemueller said, two other officers had arrived in another cruiser.

At that point the officer asked him to provide a breath sample, and Kukemueller

said he agreed to follow him back to his cruiser. Kukemueller passed the breath

test.

But as he was taking the test the officers began to mock him, he said, one even

challenging him to a fight.

"He went and pulled his badge right off," he said.

The trio continued to badger him, he said, and eventually he raised his voice and

cursed at the officers.

Kukemueller said he was grabbed, kneed in the back and pushed face first on the

hood of a cruiser. He said he heard one officer say they could now charge him

with disturbing the peace.

"There was no one around," he said, shaking his head. "Who was I disturbing?"

He said two officers on either side of him kneed him five or six times before

putting him in the back of a cruiser.

Once his "arrest" was made the two late-arriving officers left, he said, leaving him

in the cruiser with the first officer. Kukemueller said the officer told him that he

knew his family, and he was going to let him off the hook for the disturbance.

By that time, he said, his knee was hurting and he limped back to the vehicle.

Kukemueller headed to the hospital to have his injury checked out. He said the

doctor told him he had torn ligaments and internal bruising.

That trip was followed by a visit to the OPP detachment, where he tried to get a

charge laid against the officers. But the officer he spoke with said that wasn't

possible, he said.

49

"He said he would not take a statement from me," Kukemueller said.

Kukemueller was directed to the Office of the Independent Police Review Director

(OIPRD), an agency that accepts, processes and oversees complaints against

police officers. Kukemueller said he's already started the complaints process.

"I'm not letting this go," he said. "I just can't believe this."

He hasn't heard back from the OIPRD and said he's waiting to see what happens

before pursuing the matter further.

McEwan said that anyone who came to the detachment to make a complaint

against an officer would be referred to the OIPRD.

http://www.thepeterboroughexaminer.com/2012/01/04/man-claims-he-was-roughed-up-

by-opp-officers-on-new-years-day

Re: Man claims he was roughed up by OPP officers on New Year

The officers’ names that allegedly assaulted Josh Kukemueller are Troy Beavis,

Jason Katz and Mike Davidson. Jason Katz has been charged for assault before

(http://www.northernlife.ca/News/PoliceandCourt/2002/27002-27-02-Kingsley.pdf).

Previous to this assault the Peterborough OPP were harassing Josh for about

two years to the extent of pulling him over two to three times a week for

document checks, sobriety tests ect. … Strange as it might be since Josh’s father

went to the media to report this assault Josh’s continual harassment has ended.

129. Cst. Katz was a member of the Sudbury Regional police service prior to becoming

an OPP officer.

130. The jurisdiction where the allegations in this action took place is the same

jurisdiction where the allegations involving Josh Kukemueller took place.

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Tort Liability

131. Under section 50 of the Police Services Act (R.S.O. 1990) the Crown in right of

Ontario is liable for torts committed by members of the police force:

50(1) The board or the Crown in right of Ontario, as the case may be, is liable in

respect of torts committed by members of the police force in the course of their

employment. R.S.O. 1990, c. P.15, s. 50 (1).

132. The Proceedings Against the Crown Act (PACA) in section 5 reiterates this position

regarding tort committed by its servants or agents:

Liability in tort

5(1) Except as otherwise provided in this Act, and despite section 71 of Part VI

(Interpretation) of the Legislation Act, 2006, the Crown is subject to all liabilities in

tort to which, if it were a person of full age and capacity, it would be subject,

(a) in respect of a tort committed by any of its servants or agents;

(b) in respect of a breach of the duties that one owes to one’s servants or agents

by reason of being their employer;

(c) in respect of any breach of the duties attaching to the ownership, occupation,

possession or control of property; and

(d) under any statute, or under any regulation or by-law made or passed under

the authority of any statute. R.S.O. 1990.

133. It is under the authority of the PSA and the PACA that the plaintiff is holding the

crown defendants liable for the tort damages.

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RELIEF FOR THE DAMAGES IN TORT

General damages

134. The actions of the OPP defendants are not torts of negligence but intentional torts.

They were deliberate acts intended to harm the plaintiff in so much that the acts

were the actions of an angry officer (Katz) who has a disposition towards violence.

Angry over the fact that the plaintiff did not recognize his directions to stop the

vehicle and so he displays this aggression through his language and actions. Cst.

Katz notes that he struck the plaintiff one to three times thereby corroborating the

plaintiff’s version of the events. The plaintiff claims general damages in tort in:

a. Pecuniary losses of $8,500 and

b. A minimum non-pecuniary amount of $500,000.00 for the defendants’ violation

of the plaintiff’s charter rights, and as compensation for injury to the plaintiff’s

body, dignity, feelings and self-respect.

Punitive damages

135. The plaintiff asserts that Katz’s actions were malicious in so much the actions

stemmed from anger and a lack of self-control. The plaintiff also wonders if his age

and size had a factor to play in for he finds it hard to believe that were he much

younger and larger in size would have acted the way he did. The actions of Katz

were also oppressive and high-handed such that it would offend a court’s sense of

decency and are at par with the 1995 ruling of the Supreme Court of Canada:

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‘At common law, punitive damages can be awarded in any civil suit in which the

plaintiff proves that the defendant’s conduct was “malicious, oppressive and high-

handed [such] that it offends the court’s sense of decency”: Hill v. Church of

Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 196.’

In Whiten v. Pilot Insurance Co., the Supreme Court of Canada defined a rational

punitive damages award as being proportionate to the blameworthiness of the

defendant’s conduct, the vulnerability of the plaintiff, the harm or potential harm

directed specifically at the plaintiff, the advantage wrongfully gained by the

defendant, and the need for deterrence, all with a view to the other penalties

assessed against the defendant because of its misconduct. In that case the Supreme

Court set a high-water mark of C$1-million for punitive damages against insurers.

See also Vorvis v. Insurance Corp. of British Columbia , [1989] 1 S.C.R. 1085.

In doctoring their memorandum book notes and crown brief the OPP gained the

advantage of justifying the vehicle stop and their overall actions to the degree that it

was perceived to be acceptable by the officer’s supervisor, Sergeant Rathbun and

the Assistant Crown Attorney Jim Hughes.

136. The age of the plaintiff and his relatively small size compared to the officer Katz and

Davidson left him at a disadvantage in trying to defend himself aside from the fact

that he was “… scared shitless” as referenced in item 66.

137. For the reasons mentioned in items 135 and 136, the plaintiff seeks punitive

damages in the amount of $500,000.00.

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Aggravated damages

138. For the mental distress, pain, anguish, grief, anxiety, vexation, humiliation (identified

in the news especially in a small town), indignation, outrage, fear of repetition.

wounded pride, damaged self-confidence or self-esteem, loss of faith in the justice

system caused by the defendant’s false arrest, falsified evidence, police brutality,

arbitrary detention, false imprisonment (jailed at the detachment) and being coerced

by the crown to plead guilty the plaintiff seeks aggravated damages of $250,000.00.

Other relief

139. The plaintiff further claims nominal damages for a legal right that has been violated

– a legal right that the law deems necessary to protect citizens, an amount of which

is to be decided by the courts.

140. The plaintiff further claims:

(a) Damages for out-of-pocket expenses, including legal costs, that he has or will

incur as a result of the defendant’s deliberate violation of his charter rights;

pre-judgment and post-judgment interest on all amounts awarded, in

accordance with the Courts of Justice Act;

(b) Any and all public interest remedies, that the plaintiff may request and this

Honourable Court deems to be appropriate under the circumstances,

including, but not limited to:

i. The delivery of a letter of apology by each of the defendants to the

plaintiff;

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ii. The publication, at the defendants’ expense, of any decision

rendered herein, in both Ontario Provincial Police news

magazine and the Ontario Provincial Police Association’s

annual newsletter to further serve as a deterrent to conduct that

is not acceptable since the Police Services Act (PSA) code of

conduct is obviously not a sufficient deterrent;

(c) Costs of this action on a full indemnity basis, together with applicable Goods

and Services Tax therein in accordance with the Excise Tax Act, R.S.C. 1985,

c. E – 15, as amended.

Date: __________, November ___, 2013 Stephen Clarke

c/o Lloyd Tapp

252 Angeline Street North Lindsay, ON K9V-4R1

Tel: 705-878-4240 E-mail: lloydtapp65@gmail.com

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RCP-E 14A (July 1, 2007)