Mack Sing v. Smith et al, 1908 CanLII 175 (SK QB)
Date:
1908-09-17
Other citation:
1 Sask LR 454
Citation:
Mack Sing v. Smith et al, 1908 CanLII 175 (SK QB), <http://canlii.ca/t/g74cb>, retrieved on 2020-03-25
Saskatchewan Supreme Court
[TRIAL.]
Citation: Mack Sing v. Smith et al
Date: 1908-09-17
False Arrest and Imprisonment—Action against Police Officer for—What Constitutes Arrest and Imprisonment—Necessity of Notice Before Action—Acts done in Performance of Duty—Not Guilty by Statute.
Two persons having died under circumstances suggesting murder, suspicion was directed against two Chinamen, one of whom was arrested, but the other could not be found. The police made search diligently for some time, but could obtain no trace of the suspected man. Believing that he was being harboured by his fellow-countrymen in the city and that if a general search was made they would conceal him, it was determined to visit every Chinese resort in the city and take the occupants to the police station keeping them there until the search was completed and so ascertain if the man for whom they were searching was in the city. This plan was carried out, a man being stationed at each entrance to the various buildings, and a search made and the occupants removed in a conveyance accompanied by an officer and placed in charge of another officer at the station, and not permitted to depart until all places had been visited. The police had no warrant authorizing a search, nor had they any strong reason for suspecting any particular person of harbouring the suspected man. Actions were brought by some of the Chinamen against the officers for false arrest and imprisonment. The defendant’s pleaded that they had not detained the plaintiffs and also “not guilty by statute,” under which it was proposed to plead want of notice of action:—
Held, that the right violated by false imprisonment is freedom of locomotion and the gist of the offence is a restraint whereby the party complaining is hindered and prevented from going where he pleases and therefore as the evidence shewed that the plaintiffs were prevented from going where they pleased they must be held to have been imprisoned.
2. That as the police officers had no warrant nor any reasonable ground of belief that the plaintiff’s were harbouring a fugitive from justice they could not be said to be acting in pursuance of any statute or discharge of their duty, and were not therefore entitled to notice of action.
This was an action for damages for false arrest, and imprisonment brought against the mayor and certain police officers of the city of Regina, and was tried before Prendergast, J., at Regina.
Council:
C. E. D. Wood, for plaintiff.
N. MacKenzie, K.C., for the defendant, Smith.
J. F. Frame, for the other defendants.
1. The plaintiff is a store keeper carrying on business in the city of Regina in the Province of Saskatchewan, and the defendant, J. W. Smith, is the mayor of the city of Regina, and the defendant, R. J. Harwood, is the chief of police of Regina, and the defendants, A. J. Hogarth and Charles E. Gleadow are constables on the city police force of the city of Regina, and the defendant, C. H. Hogg, is a corporal in the Royal North-West Mounted Police.
2. The plaintiff on the night of the 23rd of August, 1907, and the morning of the 24th August, 1907, was arrested and falsely imprisoned and detained for several hours in the city hall in the city of Regina in the Province of Saskatchewan by the defendants, and the plaintiff thereby suffered damage, and claims damages from the defendants for the arrest of the plaintiff by the defendants as aforesaid.
(1) The sum of $2,000.00 damages for the arrest and false imprisonment of the plaintiff by the defendants.
(2) His costs of action.
[3] The defence is to the following effect: (1) By 7 Jas. I. ch. 5, by 21 Jas. I. eh. 12, 24 Geo. II. ch. 12, and ch. 146 R.S.C. 1906, secs. 1143 to 1148, the defendants are not guilty; (2) they admit the facts alleged in paragraph 1 of the statement of claim; (3) they deny that the plaintiff was arrested, imprisoned or detained by any of them.
[4] At the beginning of the trial the question was raised whether the above plea of not guilty would include the plea of want of notice under the same statutes. I ruled in the negative, and allowed the statement of defence to be amended by adding thereto the said plea of want of notice.
[5] I may say at once that at the close of the plaintiff’s case I dismissed the action as to J. W. Smith, mayor of the city of Regina, and the trial then proceeded as to the other defendants, after which I reserved judgment.
[6] The facts of the case are that sometimes about the middle of July, 1907, two men were taken violently ill after partaking of a meal, part of which was porridge, in an eating place known as Steele’s restaurant in this city, with the result that one died the same or the following day, and the other after lingering for about a week. From the facts brought out at the coroner’s inquest and other enquiries, it would appear that the death of these men was due to the absorption of poison contained in the porridge which they had eaten, that the meal from which the porridge was made had been obtained from another restaurant nearby owned and run by a Chinaman known as Charlie Mack, and that the poison was already in the meal when the latter was procured by Steele’s clerk. Suspicions, once aroused, were naturally directed towards the Chinese restaurant, and a Chinaman in Charlie Mack’s employ was arrested. In the meantime new information was obtained which led to the belief that jealousy, or revenge, due to business rivalry, had very probably been the motive of the crime, and this, coupled with the fact that Charlie Mack had not been seen about as usual for some days, led to the issue of a warrant of arrest against him also for murder. I may state here incidentally that Charlie Mack’s employee was released sometime after.
[7] The warrant against Charlie Mack was delivered to the city police force for execution. They made long and minute search in the city and visited all Chinese places that were known, but Charlie Mack could not be found. After some weeks of useless searching, believing that Mack had got out of Regina, and they having, of course, no jurisdiction outside of the city limits, the city police force turned the warrant of arrest over to the Royal North-West Mounted Police. The latter, however, before starting out to search at large, desired to make sure that Mack was not in Regina and to first institute a search by themselves in the city.
[8] With this object Corporal Hogg, of the last mentioned force, interviewed Mayor Smith in the morning or early evening of August 23rd. He was arrested. The mayor replied that he considered that he had no authority in such matters which were under the jurisdiction of a special committee of the city council; that he, however, had personally no objection to the mounted police satisfying themselves that Charlie Mack was not in the city, but at the same time made the suggestion that they should first see Chief Harwood of the city police before doing anything in order that he should not consider himself slighted, and that there should be no friction between the two forces. The form that the search would or should assume was not then discussed at all. Corporal Hogg did not then ask Mayor Smith for the assistance of the city police, and the referring by Mayor Smith of Corporal Hogg to Chief Harwood was not with the intention that the corporal should get such assistance. The one thing they both had in view was that inasmuch as the city force had already made a search, the one projected by Corporal Hogg should not be brought about in a way that would make it appear a reflection upon the former. As this was the only evidence put in by the plaintiff with respect to any action taken by Mayor Smith I ruled that there was nothing to implicate him in the subsequent events with which I shall presently deal, and, as above stated, dismissed the case as to him without putting him to his defence.
[9] Corporal Hogg, as advised to do, went to Chief Harwood in the afternoon, and they conferred together. They say that they were convinced that the Chinaman in the city were not willing to give them the information they had and in fact were helping Charlie Mack to conceal himself, and also that special difficulties arose in this case from the fact that to their eyes all Chinamen looked alike. They also say that they suspected that if a search were made in the ordinary way word would be sent by his compatriots to Charlie Mack if he were in the city, thus enabling him to move from one house to the other backwards and forwards and thus evade the police. For this reason Chief Harwood, after deciding to co-operate with Corporal Hogg, agreed with him that they should visit all Chinese residences and places of business in the city that evening and take the inmates to the city hall, believing that in this way they would prevent word being sent to Mack, and would recognize him from the others at the city hall if he were there. Chief Harwood then told city constables Hogarth, Gleadow and Sample to meet him at the R.N.W. M.P. city office that evening, which they did, and the plan as above laid out was there explained to them. At eleven o’clock in the evening, Chief Harwood, Corporal Hogg and constables Hogarth and Gleadow; accompanied by one Francombe, a Chinese interpreter, began the search. They went to every Chinese place that was known in the city. In one place, that of the plaintiff, they found as many as fourteen men, and in others only two or three. The method of proceeding seems to have been as follows: One constable, generally Gleadow, went to the rear to prevent exit by the back door, then Francombe at the front door asked admittance in the Chinese language; when entrance was obtained, Francombe and Chief Harwood would keep near the front door, and then the premises were searched, Corporal Hogg and Constable Hogarth generally taking the leading part. What had been decided by the searching party would then be intimated to the inmates, in language amounting, according to the defendants, to a peremptory order, and according to the defendants, to a mere invitation implying no command or compulsion. The inmates, either voluntarily or by compulsion, next got into a bus and, accompanied by one of the searching party (generally Chief Harwood), were taken to the city hall. If there were more men in one house than the cab could contain, one load was sent first with a constable as aforesaid, while the other inmates stayed in the house with the other policemen until the vehicle returned. Then another place was visited, and the inmates similarly taken over. By about four o’clock in the morning every known Chinaman in town, to the number of about sixty-seven, was in the city hall. It was City Constable Sample’s usual duty to be in charge of the city hall at night. He had been advised by Chief Harwood of what would be done, and he was there as the Chinamen were brought in. I judge that he was most of the time alone with them. At four o’clock, there being no other place to search, the police party repaired to the city hall, and Charlie Mack not being found there the Chinamen went back to their homes.
[10] The main question is whether there was compulsion and restraint amounting to arrest and imprisonment, or whether the Chinamen, and the plaintiff among them, were willing (one of the witnesses for the defence said, “even anxious”) to assist the police by shewing them where the Chinese residences were and accompanying them to the city hall, to facilitate the carrying out of the method of search they had adopted.
[11] I should here say that similar actions to the present one were taken against the same defendants by a number of the other Chinamen concerned in the same events, and it was stated by counsel at the trial, who are also counsel in those other cases, that it was agreed between them that the judgment in the present action would be entered as the judgment in the other suits except one wherein one Mah Poh is plaintiff. I think it not unreasonable to consider this as an admission that all the Chinamen except Mah Poh were treated alike on the occasion in question, and that whatever evidence there is with respect to the plaintiffs in the other eases is also evidence with respect to the plaintiff in this case.
[12] The right violated by false imprisonment is freedom of locomotion. The gist of the offence is a restraint whereby the plaintiff is hindered or prevented from going wherever he pleases. In the course of trial, upon a special question being raised, I expressed the view, rather as an impression, that there had been restraint. I must say that my further consideration of the matter has only confirmed this opinion.
[13] Perhaps the true significance of what happened that night is best expressed by the word used by two of the defendants when giving evidence,” a raid.” They went there, as I feel convinced, ready to use force to carry out the plan which they thought necessary for the apprehension of a murderer at large; and the Chinamen, including the plaintiff, undoubtedly understood it that way from the nature of the proceeding, from the time of the day at which it was carried on, and from the defendants’ costumes and functions with which they were familiar. What was called their acquiescence and readiness was undoubtedly the effect of a sense of their helplessness. They knew it was useless to offer opposition, they did not wish to take the responsibility of resisting peace officers, and consequently they submitted.
[14] The placing of a constable at the back door, of every house before rapping at the front is hardly in harmony with the freedom which the defence say the Chinamen enjoyed at the time; nor was the presence of a police officer in the bus, each time “a load,” was taken to the city hall.
[15] Corporal Hogg says, on examination for discovery, “The idea was so that in case Charlie Mack was in hiding they would not be able to go and inform him,” and that “the object was to prevent them from getting home to the other Chinamen.” Chief Harwood said at the trial: “Corporal Hogg and I spoke about the best plan to take them in, and finally we arranged to take them to the city hall in a bunch, and I said ‘Yes.’ . . . The object was that they could not circulate . . . that word could not be taken to any house that had not been searched.” It also appears from his evidence on examination for discovery that when one of the Chinamen at the door of the city hall asked him: “Mr. Chief, may I go home; you know I am not Charlie Mack,” he (the chief) replied, “not that he could go wherever he liked, but “I will see Mr. Hogg.” And he called Constable Hogg who appears to have been the one practically in charge, and represented to him that the man had a wife and child, and asked to let him go. Walter McInnis, a journalist, says that “quite unofficially he took part in the keeping at the city hall.” He says: “I took part in this way, that I was at the door and keeping numbers at the request of Sergeant Sample. . . . They were checked out at four o’clock in the morning.” He adds: “They were detained during that time—meaning from eleven p.m. to four a.m. Constable Sample, who, as stated, was in charge of the hall, says: “There were arrangements made to search for Charlie Mack and bring the Chinamen to the city hall that night. . . The instructions I received was that I was to see to the hall, and that nobody was to run over the hall. . . I was asked to see that none left the hall,—that they didn’t go away from the city hall,—and they went in and out, but all in the main body of the hall. They had the privilege of going down to the street but I accompanied them down, I did. . . . They went down to the street for calls of nature and I accompanied them and saw that they came back.”
[16] On the above evidence, I must hold that these Chinamen, including the plaintiff, were subjected in their right to go about and be wherever they pleased, to such interference as constitutes the ingredient of restraint in arrest and imprisonment.
[17] I should have said that nobody in the search party had actually with him the warrant issued for Charlie Mack’s arrest, and that no information had been laid nor any search warrant of any kind been issued, against any of the Chinamen taken to the city hall that night.
[18] Now, the defendants have pleaded not guilty under the statutes referred to, and by the amendment of the defence, want of notice as required by the said statutes.
[19] It was urged for the plaintiff that such pleas are not in order on the grounds: (1) That rule 113 of the Judicature Ordinance, concluding with the words “and every plea of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had,” never had any effect in the North-West Territories nor in this Province; (2) That English rule 208, which corresponds to our rule 113, is obsolete as the Public Authorities Protection Act, 56-57 Vict. ch. 61, has repealed the statutes 7 Jas. I. ch. 5, and others relied upon by the defendants; (3) That sections 1143 to 1148 of the Criminal Code are ultra vires of the Dominion Parliament as attempting to regulate practice and procedure and legislate on civil rights;—and rule 536 of our Judicature Ordinance was read as it was originally enacted, and as it now stands, since amended by ch. 8 of the Ordinances of 1903, section 6.
[20] The objection with respect to rule 536 of our Ordinance is new, I think, arid of considerable import. As to the Public Authorities Protection Act I do not see that it can alter our status either directly, or by any effect which it might have on English rule 208. With respect to sections 1143 to 1148 of the Criminal Code, the question of their constitutionality has been raised several times, but, although not always without reservation, but generally decided affirmatively: Levesque v. N.B. By., 29 N.B.R. 588; Zimmer v. Grand Trunk Railway, 19 A.R. 693.
[21] But I do not intend to deal with the objection raised. It would be idle for me to do so, for in my view, assuming that the rule and statutes referred to are in full force, the defendants, on the facts above set forth, are not entitled to their protection.
[22] The defendants have not shewn that they had any reasonable grounds of belief that the Chinamen were harbouring Charlie Mack; they, at the most, had bare suspicions, and even those were directed to the whole body of the 67 Chinamen in town, and not to any particular one. Even if they had grounds for this belief, their plain duty under the circumstances, was to have an information laid and warrant issued. Nothing of any particular import happened for days prior to the event in question; there was nothing brought to their notice at the last moment; there was no emergency; they had every opportunity to deliberate and seek advice, and ample time, if there was ground for it, to take the steps which the law required for the arrest of these men. It is, of course, over-abundantly plain that the defendants acted without malice. They also acted in good faith in this sense, that they had no other ultimate object than the apprehension of one whom they had serious grounds to believe a murderer. With the suspicions that they had, even if they did not amount to a real belief, and all the circumstances of the ease considered, their entry of the Chinamen’s houses, even if forcible, would probably, in my opinion, purport to be done in pursuance of the statute, in so far as if Charlie Mack was there as they believed or suspected, the entry would be a step in the execution of the warrant issued under the Code. They would have the right to apprehend Charlie Mack wherever he was and his presence there would be moreover primâ facie evidence that he was being harboured in that place. But the same cannot at all be said of the taking in of the 67 Chinamen on the night in question, which was not in execution of anything prescribed by the Code.
[23] Although counsel for the defence in his argument dealt with the two branches, it is absolutely clear to me from the evidence that the defendants’ intention was not in the least to arrest these men for anything they were suspected of committing or having committed, but what was done was clearly done simply as a means to effect Charlie Mack’s arrest.
[24] The statute will protect police officers against certain errors in time, place, and persons: Daniel v. Wilson (1792), 5 T.R. 1; Hughes v. Buckland (1846), 15 L.J. Exch. 233, 15 M. & W. 346. It will also sometimes protect them against manifest errors of their own judgment, but not against anything they choose to do on the bare ground that they believe it to be the means of attaining some desirable and legal end. The defendants say they believed that the gathering in of the 67 Chinamen might be-the means of effecting the arrest of Charlie Mack, but they knew—they must have known as experienced peace officers—that the means which they were adopting was altogether irregular and illegal.
[25] Most of the English cases that have been cited on the argument are cases under such acts as the Larceny Act and the Malicious Trespass Act, and are of course governed by the wording of those particular enactments. A great many of them have only to do with obvious principles, and but one or two offer any analogy to the present case.
[26] In Mott v. Milne et al., 31 N.S.R., p. 372, in which most of these cases are reviewed, it was stated, after noting that the older cases have been modified by recent decisions, that the test now is whether or not the magistrate believes upon reasonable grounds in the existence of facts which, if they existed, would give him jurisdiction. Applying this test here, the question may be put, what did the defendants believe which if true would have given them jurisdiction or made their act regular? Was it that the Chinamen in general and the plaintiff in particular had committed some crime? But they have not shewn any ground at the trial for believing that, and then, even if the fact were true that the plaintiff had committed a crime, that would not give them jurisdiction or make regular and legal what they did, for even if rightly suspected they could not arrest him without a warrant under the circumstances and they must have known so. Or, without believing them guilty, did they simply believe that this was an efficient and necessary means of reaching Charlie Mack? But this so-called belief rested wholly on the contingency of Charlie Mack being in. the city, and they clearly, on the evidence, rather believed that he was not: how could this be called a bonâ fide belief upon reasonable grounds? Then, even if that was true which they say they believed to be true, that again would be no justification; it would give them no jurisdiction and their action would still be illegal.
[27] There are certain acts and proceedings which normally constitute the execution of a warrant of arrest: the gathering in of the Chinamen on the night in question cannot be said to be one of the acts and proceedings which would constitute the execution of the warrant of arrest issued against Charlie Mack. For that reason the plaintiff’s arrest cannot be said to be an act done in pursuance of the statute.
[28] In Kelly v. Barton, 26 O.R. 608, it was held, referring to the “Act to protect justices of the peace and others from vexatious actions” (R.S.O., ch. 37), that where a person entitled to the protection of that statute voluntarily does something not imposed on him in the discharge of any public duty, no notice is required. And Boyd, Chancellor, said (p. 622): “I have not found anywhere a more lucid exposition of the law of notice as regards constables than is given by Lord Kenyon in Alcock v. Andrews, 2 Esp. 42, note. He said the defendant who justified as constable was acting colore officii and not virtute officii; it had often been held that a constable acting colore officii was not protected by the statute (24 Geo. II. ch. 44, sec. 8) where the act committed is of such a nature that the office gives him no authority to do it: in the doing of that act he is not to be considered as an officer: but where a man doing an act within the limits of his official authority, exercises that authority improperly, or abuses the discretion placed in him, to such case the statute extends. The distinction is between the extent and the all use of the authority.
“To the same effect is the language of Cockburn, J., in Griffith v. Taylor, 2 C.P.D. 201, that in order to entitle a party to notice he must have acted under the bonâ fide belief in the existence of circumstances which, if they had really existed, would have amounted to a justification (1876): see Cod v. Cabe, 45 L.J. (N.S.) M.C. 101, 102.”
[29] As to the defendants’ status as police officers, it is alleged in the statement of claim, admitted in the statement of defence, and, as I consider, established by Chief Harwood’s evidence.
[30] In brief, the material features of the case appear to me to be: 1. The defendants had no grounds for the belief which they say they entertained; 2. even had that been true which they say they believed, their action would not have been legal; 3. the act complained of, resorted to as a means, was not a step in the execution of the warrant against Charlie Mack, and consequently did not purport to be done in pursuance of the statute.
[31] I do not think that the defendants are entitled to the statutory protection which they claim: they must meet the plaintiff’s demands on the broad ground of the common law. I find that the defendants placed a restraint on the person of the plaintiff, thereby interfering with his freedom to go about, and that they did so illegally, without justification, and under such circumstances as to constitute a false arrest and imprisonment.
[32] As to the quantum of damages, I think they should be assessed low. There was manifestly no malice on the part of the defendants. The restraint practically consisted merely in making it understood to the Chinamen that they could not get away; not the least violence was used, and evidence was given shewing that there was really regard for their comfort. Their habits, their customs, their mode of living, make it safe to say that in the circumstances they have not been injured in their reputation, neither with their own compatriots nor with the general community of this city, the less so as the real significance of the event was generally well understood. Although an imprisonment in the legal sense, still their confinement in the city hall being avowedly for the purpose mentioned, did not carry with it the indignity of an arrest meant to be executed as a legal arrest upon a criminal charge. Nor do I believe that they are affected in their business either directly or indirectly. There was no ground shewn for actual damages, and even less so for exemplary damages. There was the inconvenience and annoyance of being taken away from their homes and being kept away about five hours, for which, all things being duly weighed and considered, I think that $25 is a fair compensation.
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