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Alberta’s top court has ordered a new trial in a police excessive force lawsuit filed after an arrest nearly 20 years ago.
Jason Paul won a partial victory late last month when the Alberta Court of Appeal found a lower court judge was wrong to dismiss Paul’s lawsuit against Edmonton police Const. Wilson Quan.
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The lawsuit claims Quan assaulted Paul, now a local realtor, during a June 2006 arrest at the now-defunct Iron Horse pub, when Paul was 26.
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The appeal court ruled that in the Iron Horse incident, Court of King’s Bench Justice Larry Ackerl misapplied the legal test for determining whether a police officer’s use of force can be justified under Section 25 of the Criminal Code of Canada.
Ackerl was also wrong to conclude surveillance camera footage of Paul’s arrest was useless in determining what happened, the appeal court said.
The court upheld Ackerl’s dismissal of a lawsuit regarding Paul’s arrest by a different EPS officer at another Old Strathcona pub.
Paul launched a $1.4 million legal action in 2008 alleging Quan and other officers “joined in” when Paul was assaulted by a doorman at the Iron Horse, located in the former Strathcona railway station off Gateway Boulevard.
Paul was charged with threatening the doorman, assaulting another security staffer, and assaulting Quan while resisting arrest — charges that were withdrawn after Paul pleaded guilty to causing a disturbance and was handed a probation term.
Paul claims the June 24, 2006, arrest chipped his tooth and left him with injuries to his face and body, as well as psychological injuries.
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The 18-day trial of Paul’s lawsuit — which also names as a defendant Mike Boyd, whose tenure as EPS chief ended in 2010 — began in 2021 and lasted over nine months.
Ackerl had serious issues with Paul’s testimony, saying he found the officers’ accounts more believable and accusing the plaintiff of “crusading against perceived police injustice.”
Ackerl said Paul “appeared to be marketing himself with a sales pitch he was determined to deliver rather than devoting himself to honestly testifying.”
Ackerl said police were not liable in either incident but concluded the injuries Paul suffered were worth around $5,000 in damages, including around $1,900 for dental work.
The Court of Appeal, however, took issue with Ackerl’s reasoning regarding the arrest by Quan.
The three-judge panel said regardless of whether Quan intended to strike Paul in the face or another part of the body, Ackerl failed to consider “whether Quan’s use of the baton to carry out a lawful arrest was reasonable, subjectively or objectively.”
The appeal court noted Quan was unable to specifically recall whether he struck Paul with the baton before or after Paul was handcuffed and lying face down on the ground. Ackerl nevertheless found Quan’s actions were reasonable, but did not make any finding about when the strike happened.
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“If the appellant was handcuffed at the time he was struck with the baton, it is difficult to understand how the trial judge found such use of force was objectively reasonable,” the appeal court wrote.
The court also faulted Ackerl for dismissing the video evidence. While grainy and sometimes obstructed, the video could help determine the number of people present, their body positions, the amount of time that passed and other variables, all of which “ought to have assisted” Ackerl determine whether Quan used excessive force.
The appeal court — made up of Justices Michelle Crighton, Dawn Pentelechuk and Bernette Ho — found a new trial was the only way to address those issues.
The court, however, noted the “protracted nature of this litigation” and encouraged the parties to consider some form of alternative dispute resolution such as binding arbitration.
It also declined to touch the issue of damages, saying it would be “inappropriate to constrain the new trial judge in that task.”
Paul declined to comment, as did a lawyer for the officers.
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