Everton Brown always intended to sue the Woodstock police officers he alleges beat and repeatedly shocked him during an arrest five years ago, but he took the advice of his criminal lawyer and waited until the charges against him played out in court.
The criminal case ended more than two years later with no convictions and all of the serious charges against him — obstructing and resisting police, and possession of crack cocaine and proceeds of crime — being withdrawn, provided he agree to a peace bond that involved him “keeping the peace” and staying out of Woodstock for a year.
In May 2016, sue, he did, launching a $1.75-million suit alleging he was assaulted, illegally arrested and detained and illegally searched. The 51-year-old London man did so more than two years after the alleged assault by police, placing it beyond the normal two-year limit for making such a claim.
For that reason, police argued his suit should be tossed.
But recent court decisions by the Ontario Court of Appeal — and the Supreme Court of Canada decisions not to revisit them — came down in Brown’s favour, as well as for another man facing a similar scenario, and also involving the Woodstock Police Service.
Essentially, the two-year limitations clock in cases like this now starts ticking when criminal charges are disposed of, rather than at the date of an arrest. The rulings reverse a standard that effectively prevented some victims of alleged police abuses from being able to seek compensation in civil court.
Before these rulings, potential complainants would have to proceed through the notoriously slow criminal court system in order to first see any evidence against them that might inform their decision to sue — while also defending against those charges.
In September, the Supreme Court of Canada refused to hear appeals by police in Brown’s case and that of Robert Winmill, affirming a 2017 Ontario Court of Appeal decision in Winmill’s case that “it makes sense” for people to focus on criminal charges and “deal with those before making a final decision about a civil action” against police.
The court of appeal in March found Brown’s case to be a “mirror-image” scenario to Winmill’s.
“It’s a watershed case,” says Toronto lawyer Osborne Brownwell, who is representing Brown in the civil case. “In my view, it sort of levels the playing field. The court took the view that it would be unfair for him to have to sue the police while he’s being prosecuted, and that’s why this case, from my perspective, is a significant achievement.”
Barry Swadron, who represented many clients suing police during his legal career, agrees. Civil suits against the police are extremely expensive, he says, and an accused person who endures police misconduct “may well be reluctant to commence a lawsuit against the police while he is in jeopardy of being convicted, and consequently likely to lose that lawsuit. Allowing more time to sue in these instances is a welcome development.”
The lawsuits can take years to play out, often costing plaintiffs tens of thousands of dollars in legal fees, win or lose.
Kent Roach, a University of Toronto law professor and legal scholar, says delaying the start of the clock is “probably appropriate because it’s a lot to expect an accused to fight this kind of two-fronted war — civil and criminal — at the same time, and many causes of actions will really depend upon whether the police have been able to make out their charges.”
Brian McCall, the lawyer representing Woodstock police, would not comment on the specifics of the case because it is before the courts, but said in an email to the Star that overturning the standard that the limitation period begins to run at the date of arrest exposes officers to “civil claims which may otherwise not have proceeded.”
None of Brown’s allegations have been proven in court. In a statement of defence, Woodstock police deny Brown’s allegations of assault and illegal arrest and detention. They say police had information Brown was a suspected drug dealer, that the force used to arrest him was necessary, and that police used the Taser to control him while he resisted arrest.
On recent November afternoon, Brown sat in a boardroom at Brownwell’s North York law offices to talk about his precedent-setting case, and the impact it has had on his life.
Brown came to Canada from Jamaica in the late 80s and early 90s as a seasonal migrant farm worker picking tobacco and apples. He found love and Canada become home.
On Feb. 15, 2013, he drove from London to a multi-unit house in Woodstock, where he said a friend’s husband had offered to help him install a car stereo.
According to his statement of claim, Brown was in his car outside the address, when he suffered “shooting pain” followed by an anxiety attack stemming from a car accident two years earlier.
He told the Star he stayed inside the car in order to deal with the attack, using breathing techniques he learned from a psychologist.
That’s when, according to his suit, he was “accosted by a number of individuals, whom he believed were thugs trying to rob him” — men he later discovered were four plainclothes police officers. One officer, he alleges, drew his gun and pointed it at him.
Brown alleges in the statement of claim that he was struck repeatedly by fists and “forcibly dragged” out of the car, causing injuries to his head, face and throat, “thrown on the snowy ground,” and, while face down, “tasered at least four times.”
“If it wasn’t for God himself, I wouldn’t be living today,” Brown told the Star. “It felt like my heart was going to cut off. I couldn’t breathe.”
Brown alleges in his suit that, in addition to the other injuries, his jaw was locked and he asked to be taken to hospital but that didn’t immediately happen. Instead, he was handcuffed, booked at the station and held overnight before being taken to hospital the next day. He also alleges police deliberately broke a walking stick he needed to get around.
Police, in their statement of defence, do not make any references to a request to go to the hospital, and say “no more force than was reasonably necessary” to make the arrest. They allege Brown refused to get out of the car and “put something in his mouth.” After officers pulled him from the vehicle, police allege Brown “spit the object in his mouth into the snowbank,” which was later determined to be crack cocaine wrapped in plastic.
Police also allege the address Brown was visiting was a “location where drug dealing occurred” and that Brown was “associated with known drug dealers” and that “his negligence” caused any damages he sustained.
Brown says in his suit that he “was not at all involved” in drug dealing. He told the Star “there was no spit out. There was no drugs.”
Brown’s suit states that he learned at his trial that police had been watching the address and had a “suspicion” that Brown was selling drugs to a “certain person.” He also points out in his suit that the house is divided into four apartments. He was there to visit tenants who lived upstairs, and the “person being targeted by the police apparently lived” downstairs, he states in his suit.
Police had been wiretapping their target, Brown states in his suit, and there was “no evidence whatsoever that he had been involved in criminal activity.”
After five days of evidence at his trial, including Charter applications, the Crown, according to court records, approached Brown’s lawyer with an “offer” to end the criminal case against him with the peace bond and withdrawal of charges.
In his suit, Brown alleges the peace bond was “thrust upon him.”
Brown told the Star he would like to see the officers involved disciplined.
He said he now has problems remembering things and needs help to keep his house and yard in order. When he sees police driving behind him, “I feel intimidated. It brings me back there. To that day, when they pulled me out of the car.”
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Jim Rankin is a reporter based in Toronto. Follow him on Twitter: @Jleerankin