



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Richardson 
          v. Vancouver (City),







2006 
          BCCA 36



Date: 20060127





Docket: CA032929

Between:

John 
    Richardson

Appellant

(
Plaintiff
)

And

City 
    of Vancouver and

Chief 
    of Police Jamie H. Graham

Respondents

(
Defendants
)












Before:


The 
          Honourable Mr. Justice Donald




The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine










H. 
          Rubin


Counsel for the Appellant




B. 
          T. Quayle


Counsel for the Respondents




Place and Date of Hearing:


Vancouver, British Columbia




12 December 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




27 January 2006








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Donald




Concurred 
          in by:




The 
          Honourable Madam Justice Newbury

The 
          Honourable Madam Justice Levine





Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]

John Richardson, the plaintiff, appeals from the order of Mr. Justice 
    Stewart pronounced 5 April 2005 dismissing his action for wrongful arrest 
    and defamation.  The judge's reasons are cited as 2005 BCSC 499, and reported 
    at 8 M.P.L.R. (4th) 53.

[2]

The plaintiff is a lawyer and was, at the material time, the executive 
    director of the Pivot Legal Society, an organization devoted to the legal 
    rights of residents of the Downtown Eastside of Vancouver.

[3]

The first cause of action arises from the plaintiff's arrest by Vancouver 
    Police for obstructing a police officer in the execution of his duty, contrary 
    to s. 129 of the
Criminal Code
.  On the facts found by the judge, 
    the plaintiff crossed a police cordon after having been once removed from 
    the protected area and warned to stay behind the line.  The plaintiff was 
    taken into custody, held overnight, and released the next day without charge.

[4]

The judge found that the arresting officer had reasonable and probable 
    grounds, both subjectively and objectively, to believe the plaintiff had committed 
    the offence.

[5]

On appeal, the plaintiff alleges the judge erred in finding the arrest 
    was lawful when, it is argued, the police operation was not itself lawful 
    and therefore he could not have committed the offence of obstruction or, alternatively, 
    the officer was not in the lawful execution of his duty.  The plaintiff further 
    alleges the judge erroneously based his decision solely on what the arresting 
    officer saw and heard and ignored relevant evidence of what was known by the 
    other members of the Vancouver Police Department engaged in the operation.  
    Had that other evidence been considered, it is argued that the absence of 
    obstruction, or the lawfulness of the plaintiff's conduct, would have been 
    obvious.

[6]

The second, and unrelated, cause of action relates to Chief Constable 
    Graham's reaction to a report of alleged police misconduct towards disadvantaged 
    persons living in the Downtown Eastside.  The report was published by the 
    Pivot Legal Society.

[7]

The plaintiff claimed that Graham defamed him in a letter Graham wrote 
    to the Law Society of British Columbia complaining that the plaintiff, for 
    political motives, made allegations of police misconduct but refused to hand 
    over to the police department the evidence of wrongdoing he had assembled.  
    The plaintiff further claimed that Graham defamed him on a radio talk show 
    while discussing the same subject matter.

[8]

The judge found that the letter to the Law Society was protected by 
    absolute privilege.  He also found that in responding to the plaintiff's attack 
    on the reputation of the Vancouver Police Department, Graham stayed within 
    the bounds of qualified privilege in what he said on the talk show.

[9]

On appeal, the plaintiff argues that Graham lost absolute privilege 
    when he sent copies of his letter of complaint to the Vancouver Police Board 
    and the Office of the Police Complaint Commissioner.  He further argues that 
    since Graham, as Chief Constable, would one day have to "adjudicate" 
    the specific complaints referred to in the Pivot report, he had no proper 
    basis for commenting on the radio concerning the merits of the report and, 
    accordingly, he was not entitled to claim qualified privilege.

[10]

I cannot give effect to any of the grounds of appeal and I would accordingly 
    dismiss the appeal.  In short, the contention that the plaintiff was not guilty 
    of obstruction is beside the point, as is the allegation that the police operation 
    was not authorized by law.  The true question is whether the arresting officer 
    had reasonable and probable grounds to believe the plaintiff committed the 
    offence.  That question cannot be answered according to the knowledge that 
    other police officers may have had concerning the plaintiff's motives and 
    behaviour, nor by reference to the legal status of the police operation.  
    On the defamation claim, Graham reported his complaint to the Law Society, 
    appropriately in my view, to his employer, the Vancouver Police Board, and 
    to the Office of the Police Complaint Commissioner, bodies to which the Pivot 
    Legal Society had sent copies of its report, and he therefore did not step 
    outside the absolute privilege that attaches to his complaint to the Law Society.  
    In sending copies to the other two bodies, Graham discharged a duty to report 
    his complaint, and the recipients had a corresponding interest in receiving 
    it, and therefore the communications were protected by qualified privilege.  
    As for Graham's remarks on the radio talk show, there is no legal relationship 
    between his role as spokesman for the Vancouver Police Department and his 
    role as the senior officer exercising disciplinary authority over the members 
    of the department.  Assuming, without deciding, that his criticism of the 
    Pivot report prejudiced his view of allegations of police abuse contained 
    therein, that could not affect his right and duty to respond to a public attack 
    on the reputation of the Vancouver Police Department under the protection 
    of qualified privilege.

Factual Background

Wrongful arrest claim

[11]

On 22 September 2002, the plaintiff was arrested by Constable (now 
    Sergeant) Harris at the intersection of Cordova and Abbott Streets in Vancouver.  
    This is the corner of the former Woodward's store, still a large vacant building, 
    located in the Downtown Eastside.  It became known as the Woodward's Squat 
    because some of the City's homeless lived there.  After they were evicted, 
    some of them and their supporters camped on the sidewalk under the building's 
    canopy.  The police organized a cleanup operation.  City workers went to remove 
    tents, mattresses and debris from the site.  Police attended to protect the 
    workers and to keep the peace.  Most of the squatters left with their belongings 
    but some remained to protest what was taking place.  The plaintiff arrived 
    and asserted his right to pass through the police cordon.  The judge found 
    the facts relating to the arrest at para. 30, sub-para. (20):

(20)  
    I find as a fact that what Constable Harris saw and heard insofar as the plaintiff 
    is concerned is this:  the police line of uniformed officers, of which Constable 
    Harris was a part, was obvious and shifting as the need arose; at the material 
    time the police line was between where the city workers were cleaning up the 
    mess and where a group of people on the sidewalk on the southeast corner of 
    Abbott and Hastings were standing; obviously the police, including Constable 
    Harris, had the city workers to their backs and were watching the group of 
    people in front of them; a man who was not known to Constable Harris was yelling, 
    claiming that he was a lawyer, and yelling louder than most or all of the 
    other people in the group; that man was yelling at the police and demanding 
    to be told the legal basis for the officers taking control of the intersection; 
    at least once the man who had thus distinguished himself moved toward the 
    police officers with the apparent intention of making his way through the 
    police line; at least once, and after being told he would not be allowed through 
    the police line, the man returned to the sidewalk; whatever number of times 
    it was that the man had thus moved toward the police lines, there came a final 
    time when it was Constable Harris who took the man by the arm and put him 
    on the sidewalk; the man was told that if he repeated what he had just done 
    he would be arrested for obstruction; the man did repeat what he had just 
    done and, as Constable Harris saw it, this time he made his way partially 
    through the multi-layered line of police officers with Constable Harris in 
    hot pursuit; Constable Harris took the man by the arm and told him he was 
    under arrest for obstruction; what followed was the usual and the ordinary 
    involving the mans being taken to a police car, handcuffed, told again why 
    he was being arrested, warned, searched and eventually put in a police wagon.  
    The plaintiff was the man in question.

[12]

Having made these findings, he found the arrest was not unlawful:

(21)  
    I find that my findings of fact,
supra
, put paid to the plaintiffs 
    case.  I take s. 129(a) of the
Criminal Code
as read and 
    say as the trier of fact that the defendant has convinced me that Constable 
    Harriss perception of what was going on amounted to the viewing of an apparent 
    wilful obstruction of the execution by the peace officers in the line or wall, 
    including Constable Harris, of their lawful duty to maintain the peace as 
    city workers cleaned up city property and police officers to the rear of the 
    police line or wall kept close watch and took such action as reasonably necessary 
    to protect the workers and maintain the peace as the city workers went about 
    their business.  I say as the trier of fact that the plaintiff has convinced 
    me that that perception, objectively viewed, was what would have been apparent 
    to a reasonable person placed in Constable Harriss circumstances.

Defamation claim

[13]

Graham's letter to the Law Society reads as follows:

February 4th, 2003

The Law Society 
    of British Columbia

845 Cambie 
    Street

Vancouver, British Columbia

V6B 4Z9

Dear 
    Sir or Madam:

Re:      John Richardson & Pivot Legal Society

In 
    October last year, I received a glossy report authored by the Pivot Legal 
    Society under a covering letter from Barrister and Solicitor, John Richardson, 
    the Societys Executive Director.  The report purports to contain approximately 
    fifty examples of serious police criminal misconduct based on affidavits taken 
    by Mr. Richardson and his associates.  The report was distributed with a detailed 
    media campaign.

One 
    of the members of our Internal Investigation Unit contacted Mr. Richardson 
    by phone and was told that he had no intention of releasing names.  Mr. Richardson 
    also said that the release of the report was specifically timed to coincide 
    with the Vancouver civic election.  Having received nothing from Mr. Richardson, 
    I wrote him and explained that it is both my duty and responsibility to investigate 
    all allegations of police misconduct.  A copy of my letter is attached.  The 
    Pivot report contains allegations of serious criminal offences by members 
    of the Vancouver Police Department.  The VPD was categorized in Mr. Richardsons 
    report as committing acts of torture and assault against innocent citizens.  
    My letter explained that in order to conduct thorough investigations, the 
    timely collection of trace evidence to prevent contamination, obtaining witness 
    statements while memories were clear, providing victim support and the pursuit 
    of offenders, would be crucial.  He was clearly told that any delay in actively 
    investigating these cases could jeopardize the chances of successfully clearing 
    any of them.

Mr. 
    Richardsons rationale in not supplying the alleged victims full particulars 
    was apparently based on his views regarding the inadequacy of the current 
    legislation governing the investigation of allegations of police conduct.  
    He is aware of the process for citizens to register their complaints against 
    police officers, but he does not agree with it.  Mr. Richardson received a 
    letter dated November 5th, 2002, from the Acting Police Complaint Commissioner, 
    H. Benjamin Casson, Q.C. (AB), Office of the Police Complaint Commissioner, 
    explaining the process for initiating a complaint, but once again no information 
    was forthcoming.  In late January, Mr. Richardson told the assembled Vancouver 
    media that it was his intention to supply the details to the new Police Complaints 
    Commissioner some time in February.

I 
    am writing this as I have concerns with regard to Mr. Richardsons legal behaviour 
    as a barrister and solicitor and an officer of the court.  His obstruction 
    may seriously hamper any chance of a successful conclusion to some of the 
    allegations he has quoted and I am doubly troubled as to his real motives.

If 
    you require any assistance, please contact my Executive Officer, Inspector 
    Andy Hobbs, at 604-717-3498.

Yours 
    truly,

Jamie H. Graham

Chief 
    Constable

cc:       Vancouver Police Board

Police Complaints Commissioner, OPCC

[14]

The transcript of the relevant part of the radio broadcast reads as 
    follows:

TRANSCRIPT

CKNW NEWS  FEBRUARY 13, 2003

BILL GOOD SHOW  EXCERPT

Jamie 
    Graham:  Let me just talk a sec about there was one allegation that one of 
    the people threw at me on Friday, that there about a, there is some guy in 
    town that did a very nice glossy report, uh, the Pivot report

Bill 
    Good:  An organization called Pivot.

Jamie 
    Graham:  Yeah, Pivot.  And they did a nice, high-end glossy report with a 
    series of innuendo and criticism of us in a wide variety of cases, and actually 
    went as far as without any naming anybody simply threw out there the fact 
    that we kidnap and we injure and we torture people.  Ive never heard anything 
    so preposterous in my life.  So, but its out there.  And I cant fight it 
    when there are no names attached to it.  So what do I do?  I havent got enough 
    evidence to execute a search warrant and go get the material from him.  So 
    I wrote him a letter, and I said you give me the facts youve got.  You give 
    me every affidavit, give me your tapes, give me your affidavits, all the names 
    and addresses you have of everybody Ill assign an officer to every one of 
    those cases and he just says no, he just wants to keep it in house.  And in 
    fact one of the verbal comments that went to him before the election was he 
    was doing this for an election ploy, he told that to one of my investigators.  
    So were wide open, but now hes saying that he wants to wait until the new 
    public complaints commissioner is in town, well he has a letter from the existing 
    public complaints commissioner saying thats not the way we do business.  
    We have a process, and if you feel youve been aggrieved or harmed by the 
    police, you come forward.  My job and my reputation depends on how thorough 
    a job I do and Im going to do a thorough job.

Bill 
    Good:  Ill break for the news headlines, and when we come back...

[15]

As mentioned, the judge found the letter was protected by absolute 
    privilege; the distribution of copies to the Vancouver Police Board and the 
    Police Complaint Commissioner, by qualified privilege; and the broadcast also 
    by qualified privilege.

Issues


[16]

The plaintiff alleges the following errors:

(1)        Justice Stewart erred in law in dismissing 
    the action for wrongful arrest for the following reasons:

(a)        It was error in law to ignore the conduct of the group and 
    focus only on what Sergeant Harris heard or missed hearing.

(b)        The Court should have looked to the operation plan and the 
    knowledge and conduct of other officers because the police were not acting 
    in the execution of their duty when they exceed[ed] the power conferred by 
    the Vancouver
Street and Traffic Bylaw
:
R. v. Sharma
, [1993] 
    1 S.C.R. 650.

(c)        Sergeant Harris had a duty to explain to the appellant the 
    police authority for the perimeter cordon and as well to allow the appellant 
    to see his clients and make the
Sharma
point to Inspector McKay.

(2)        Justice Stewart erred in law in finding that 
    Chief Graham, the designated adjudicator of complaints against Vancouver Police 
    officers, had a qualified privilege to publicly respond to the complaints 
    before he adjudicated.

(3)        By ignoring the confidential nature of a complaint 
    to the Law Society and sending copies to Police Board members and to the office 
    of the Police Complaint Commissioner the Chief of Police lost any absolute 
    privilege he had under
Hung v. Gardiner
, 227 D.L.R. (4th) 282 [BCCA], 
    2003 BCCA 257, and the Chief should be liable to the appellant both in defamation 
    and for abuse of process of the law in spuriously reporting the appellant 
    to The Law Society of British Columbia for professional misconduct.

Discussion

Wrongful arrest

(a)        Knowledge possessed by officers 
    other than the arresting officer

[17]

The gist of the plaintiff's argument under this head is that while 
    Constable Harris may not have known it, other officers at the scene were aware 
    that (1) the plaintiff announced he was a lawyer; (2) he represented 
    protesters at the Squat; (3) the protesters called out that he was their 
    lawyer; (4) he requested that he speak to the officer in charge; and 
    (5) he demanded to know by what legal authority the police barred access to 
    the street.  With that collective knowledge, it is said that the police knew 
    of circumstances that made an arrest for obstruction legally untenable.

[18]

The lawfulness of arrest must depend on the subjective belief of the 
    arresting officer and an objective assessment of that belief based on what 
    the officer knew at the material time.  It is a question related to the
individual
officer.  I know of no authority that supports the notion of a collective 
    intelligence, the sum of knowledge possessed by all the police in an operation, 
    as the basis for judging the lawfulness of arrest.  Here, Constable Harris 
    arrived on the scene in the middle of the action and had no opportunity to 
    learn what prior interaction the plaintiff had had with other officers.  It 
    cannot be said that he was indifferent or wilfully blind to relevant circumstances.

[19]

The premise of the plaintiff's line of argument is that he was not 
    guilty of obstructing the police and he therefore could not have been lawfully 
    arrested.  This is a theme running through the wrongful arrest claim and I 
    think, with respect, it is wrong.

[20]

The plaintiff runs together his criminal liability with the officer's 
    civil liability (and the City's vicarious liability) for the tort of wrongful 
    arrest.  They each have a different set of legal rules and procedures; they 
    must be treated separately to avoid the kind of confused thinking manifest 
    in the plaintiff's argument.  Many lawful arrests may ultimately result in 
    an acquittal.  If an acquittal were to create exposure to tort liability, 
    the power of arrest would be radically curtailed.  There is no logical relationship 
    between the criminal and civil determinations; they are each aimed at different 
    questions:  "Did the accused obstruct?" is not the same as "Did 
    the officer have reasonable and probable grounds to believe he did?"

[21]

The trial judge approached the matter, correctly in my view, according 
    to what was apparent to Constable Harris at the scene of the arrest.  He did 
    so having referred to
R. v. Biron
(1975), [1976] 2 S.C.R. 56, 
    and
R. v. Roberge
, [1983] 1 S.C.R. 312.

[22]

In
Biron
, the majority (5-3) rejected the view taken 
    by the Quebec Court of Appeal, and by the Saskatchewan Court of Appeal in
Saskatchewan (Attorney General) v. Pritchard
(1961), 34 W.W.R. 
    458, that since the accused was acquitted, on appeal, of the offence for which 
    he was arrested (causing a disturbance), it followed that he could not have 
    been convicted of resisting arrest.  Martland J., for the majority, said at 
    72:

If 
    the reasoning in the
Pritchard
case is sound, the validity of an arrest 
    under s. 450(1)(
b
) can only be determined after the trial of the person 
    arrested and after the determination of any subsequent appeals.  My view is 
    that the validity of an arrest under this paragraph must be determined in 
    relation to the circumstances which were apparent to the peace officer at 
    the time the arrest was made.

[23]

Martland J. relied on a decision of Lord Denning in
Wiltshire 
    v. Barrett
, [1965] 2 All E.R. 271 (C.A.), which, like this, was a 
    civil action for damages, as authority for the proposition that the lawfulness 
    of the arrest must be determined on what was apparent to the arresting officer, 
    not according to the outcome of the criminal proceedings.  He said, at 75:

In 
    the
Wiltshire
case the statutory provision involved the power to arrest 
    without a warrant a person unfit to drive because of drink or drugs and the 
    Court referred to the public importance of an arrest being promptly made in 
    such circumstances.  Paragraph (
b
) of s. 450(1) deals with the 
    power to arrest without a warrant a person found committing any criminal offence. 
     It is certainly of public importance that the peace officer should be able 
    to exercise this power promptly.

If 
    the words "committing a criminal offence" are to be construed in 
    the manner indicated in the
Pritchard
case, para. (
b
) becomes 
    impossible to apply.  The power of arrest which that paragraph gives has to 
    be exercised promptly, yet, strictly speaking, it is impossible to say that 
    an offence is committed until the party arrested has been found guilty by 
    the courts.  If this is the way in which this provision is to be construed, 
    no peace officer can ever decide, when making an arrest without a warrant, 
    that the person arrested is "committing a criminal offence".  In 
    my opinion the wording used in para. (
b
), which is oversimplified, 
    means that the power to arrest without a warrant is given where the peace 
    officer himself finds a situation in which a person is apparently committing 
    an offence.

[24]

In
Roberge
, the court clarified
Biron
by 
    holding that what was apparent to the officer must also have been reasonable.  
    Lamer J., as he then was, who gave the judgment of the court, said at 324-325:

The disagreement between the judges of this Court in
Biron
was as regards the test when applicable to a party resisting 
    arrest.  I have underlined the test the minority recognized as applicable 
    to the arresting officer when he is the accused.  The majority would have 
    the same test for the arresting party and the party being arrested.  As regards 
    the accused arrestor, I see no disagreement even though the majority refer 
    only to
apparently committing
.  Indeed, I do not read the test laid 
    down by Martland J. as suggesting that it is sufficient that it be "apparent" 
    to the police officer even though it would be unreasonable for the police 
    officer to come to that conclusion.  Surely it must be "apparent" 
    to a reasonable person placed in the circumstances of the arresting officer 
    at the time.

[Emphasis in text.]

(b)       The operation plan

[25]

The defendant relies on s. 25(1) of the
Criminal Code
, 
    which reads:

25. (1)  Every one who is required or
authorized by law
to do anything 
    in the administration or enforcement of the law

(a)        as a private person,

(b)        as a peace officer or public officer,

(c)        in aid of a peace officer or public officer, or

(d)        
    by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required 
    or authorized to do and in using as much force as is necessary for that purpose.

[Emphasis added.]

[26]

The plaintiff, on the other hand, argues that the police operation 
    was unauthorized, thereby negating this justification.  He urges on us the 
    framework of analysis developed by the Alberta Court of Appeal in
Crampton 
    v. Walton
, 2005 ABCA 81, 29 C.C.L.T. (3d) 191 at paras. 5-7:

[5]        
    This section protects police officers, among others, from criminal liability 
    for actions committed in the course of enforcing or administering the law. 
     Although the section is contained in the
Criminal Code
, it also provides 
    a defence to civil liability:
Bolianatz v. Edmonton Police Service
, 
    313 A.R. 73, 2002 ABQB 284 (Alta. Q.B.) at para. 21, citing
Shynall v. 
    Priestman
, [1959] S.C.R. 615 (S.C.C.) at 623.  Section 25 does not confer 
    extra powers on the police, but serves as a shield from criminal or civil 
    liability:
R. v. Asante-Mensah
(2001), 204 D.L.R. (4th) 51 (Ont. C.A.) 
    at para. 51, aff'd [2003] 2 S.C.R 3 (S.C.C.).  See also
Eccles v. Bourque
(1974), [1975] 2 S.C.R. 739 (S.C.C.), at 742.

[6]
Section 25(1) contains three branches.  In order to access the protection 
    of the section, a police officer must prove that he or she
:

(i)
was required or authorized by law to perform an action in the administration 
    or enforcement of the law
;

(ii)        
    acted on reasonable grounds in performing that action; and

(iii)       did not use unnecessary force.

See
Chartier 
    v. Greaves
, [2001] O.J. No. 634 (Ont. S.C.J.) at para. 54.

[7]        
    As is the case with other defences to assault,
those seeking exemption 
    from liability under s. 25(1) bear the burden of demonstrating the section 
    applies
:
Bolianatz
,
supra
, at para. 21. Therefore,
to 
    succeed in defending a civil suit for assault, the police must prove each 
    of these three elements
on a balance of probabilities.

[Emphasis added.]

[27]

The plaintiff says that the first branch of this test has not been 
    met:  the police operation was unlawful and so the police had no power to 
    arrest.  The operation is said to be unlawful because it involved the deployment 
    of City sanitation workers to carry out removal and cleanup tasks which, according 
    to the plaintiff's reading of s. 71(1) and s. 71(4) of the City of Vancouver's 
    Street and Traffic By-law No. 2849, can only be authorized by the City Engineer.  
    The plaintiff cites
R. v. Sharma
, [1993] 1 S.C.R. 650, for the 
    proposition that the police have no power to arrest for breach of an invalid 
    by-law, which by extension would apply to an unauthorized cleanup operation 
    initiated by the police.

[28]

The plaintiff also refers to
Hudson v. Brantford Police Services 
    Board
(2001), 204 D.L.R. (4th) 645 (Ont. C.A.) where the police entered 
    the plaintiff's home without a warrant, not in hot pursuit, and without permission, 
    in the mistaken belief that they could lawfully do so to arrest the plaintiff.  
    It was held (at para. 24), reversing the trial judge's dismissal of the action 
    for wrongful arrest, that s. 25(1) "... does not protect against reasonable 
    mistakes of law, such as mistake as to the authority to commit a trespass 
    to effect an arrest."  At para. 26, the court said:

The 
    issue is not whether the officers were acting unreasonably or in bad faith 
    generally but whether they had authorization to trespass.  They did not, and 
    s. 25(1) affords them no defence.

[29]

Counsel for the City agrees that in a case of wrongful arrest, the 
    claimant must prove the arrest, but then having done so, the burden shifts 
    to the defendant to justify it.   The City argues, however, that the proper 
    focus is not whether the cleanup operation was authorized by the City Engineer 
    but rather on the legal authority possessed by Constable Harris to arrest 
    the plaintiff in the context of the facts found by the trial judge.  Those 
    facts include these findings in the reasons for judgment at para. 30, sub-paras. 
    (18) and (19):

(18)      
    I find as a fact that Constable Harris was a police officer whose duty was 
    to form part of a multilayered line of police officers and at the same time 
    supervise other officers who formed part of the same line, a line directed 
    at keeping to the south and east of an area in which city workers were clearing 
    up the mess on city property created by an unlawful Squat, such people as 
    the police were
not
confident would
not
put in jeopardy the 
    peaceful carrying out of their lawful task by the municipal employees.

(19)      
    That the Squat was, on the face of it, contrary to law is manifest.  (Vancouver 
    Charter sections 289/290; Street and Traffic Bylaw sections 86, 71(1), 73(1)).  
    That the owner of the street  the City of Vancouver (Vancouver Charter section 
    289)  can clean up a mess left by others is both obvious and the law. (Street 
    and Traffic Bylaw section 72(4)).  The submission by counsel for the plaintiff 
    that in defending this action for wrongful arrest the defendants must prove 
    that the workers who were removing the mess had the express authority of the 
    City Engineer to do so is not based on law.  It is rejected.  That police 
    officers assigned by their superiors to keep such workers safe and preserve 
    the peace are acting squarely within the scope of their duty is clear from 
    both case law (
Knowlton v. The Queen
(1973), 10 C.C.C. (2d) 
    377 (S.C.C.)) and statute law:
Police Act
ss. 15, 26, 
    34.

[30]

The City further submits that the justification under s. 25(1)(b) derives 
    from the combined effect of s. 495(1)(a) and s. 129 of the
Code
.  
    Subsections 495(1)(a) and (b) read:

495. 
    (1)  A peace officer may arrest without warrant

(a)        
    a person who has committed an indictable offence or who, on reasonable grounds, 
    he believes has committed or is about to commit an indictable offence;

(b)        a person whom he finds committing a criminal 
    offence; ...

[31]

Section 129(a) reads:

129.  Every one who

(a)        
    resists or wilfully obstructs a public officer or peace officer in the execution 
    of his duty or any person lawfully acting in aid of such an officer,

* 
    * *

is 
    guilty of

(d)        
    an indictable offence and is liable to imprisonment for a term not exceeding 
    two years, or

(e)        an offence punishable on summary conviction.

[32]

Thus, the submission of the City is that Constable Harris was "authorized 
    by law" under s. 25(1) to arrest the plaintiff upon finding him committing, 
    or believing on reasonable grounds to have committed (s. 495(1)(a) or (b)), 
    an indictable offence contrary to s. 129(a).

[33]

I agree with the City's position.  Whether the City Engineer authorized 
    the cleanup is of marginal significance in the circumstances of this case.  
    As the trial judge found, Constable Harris was at the scene to keep the peace 
    and protect the safety of the sanitation workers while they remedied an unlawful 
    situation.  His arrest of the plaintiff for obstruction was not, as in
Sharma
, 
    a colourable device to enforce a by-law (the plaintiff here was arrested for 
    obstruction, not a breach of the street by-law), nor was it based on the officer's 
    mistaken view of his powers, as in
Hudson
.

(c)        Default of police "duties"


[34]

The plaintiff advanced several points concerning his right to get an 
    explanation from the police for the cordon, denial of access to his clients 
    engaged in the protest, denial of his opportunity to advocate for a less Draconian 
    approach to the problem, and generally the reasonableness of his conduct compared 
    with that of the police.  I do not find them relevant.  They represent an 
    attempt on his part to turn the case into a broad commission of inquiry.  
    The issues must be confined to those pertaining to the tort alleged.

[35]

Assuming, without deciding, that the police had a duty to explain the 
    cordon, to allow the plaintiff to see his clients, and to provide an opportunity 
    to argue the
Sharma
case to the officer in charge, I am not 
    persuaded that the default in discharging those duties affects the central 
    issue, namely, whether Constable Harris had reasonable and probable grounds 
    to believe that the plaintiff committed the offence of obstruction.

Defamation

Loss of Qualified Privilege


[36]

The trial judge held that in sending copies of his Law Society complaint 
    to the Police Board and to the Office of the Police Complaint Commissioner, 
    and in his remarks on the radio talk show, Chief Constable Graham was protected 
    by qualified privilege.  The plaintiff submits that Graham cannot claim the 
    privilege when he spoke against the Pivot report prior to the resolution of 
    the allegations contained in the report.  As mentioned in the introduction 
    to these reasons, the plaintiff alleges that it was improper for Graham to 
    comment on the merits of the claims in the report, disparaging them in the 
    Law Society complaint by imputing a political motivation and calling them 
    "preposterous" on the talk show, when those very complaints could 
    later come to him for decision as to the discipline of those under his command.

[37]

This point confuses administrative law principles with the law of defamation.  
    While it is clear that a statutory decision maker could lose impartiality 
    by publicly expressing an opinion on matters he may have to adjudicate before 
    a fair process has taken place, it is entirely novel, and in my view supported 
    neither by principle nor authority, to suggest that the potential loss of 
    impartiality removes qualified privilege.  This would add a new category to 
    a long established doctrine in the law of defamation and there is no policy 
    basis for doing so.

[38]

It is apparent that Graham felt it necessary to respond to a public 
    attack on the integrity of his police force.  He ran the risk of disqualification 
    as the discipline authority if he said too much, but that has no logical connection 
    with the rationale for malice as a vitiating element in qualified privilege.  
    As the City argued, a person whose character or conduct has been attacked 
    is entitled to answer the attack, and any defamatory statements he makes about 
    the person who attacked him will be privileged provided they are
bona fides
and are fairly relevant to the accusations made:
Gatley on Libel and Slander
, 
    9th ed. (London: Sweet & Maxwell, 1998) at 365;
Netupsky v. Craig
(1972), [1973] S.C.R. 55, 28 D.L.R. (3d) 742; and
Ward v. Clark
(2001), 95 B.C.L.R. (3d) 209 (C.A.).

[39]

No malice or lack of
bona fides
having been shown, Graham was 
    entitled to the protection of qualified privilege.

[40]

As mentioned, qualified privilege also attaches to the sending of copies 
    of the Law Society complaint to the Police Board and the Police Complaint 
    Commissioner on the basis of a corresponding duty and interest, to which reference 
    is made in the next part.

Loss of Absolute Privilege


[41]

The last ground of appeal is the allegation that, by sending copies 
    of his Law Society complaint to the Police Board and to the Office of the 
    Police Complaint Commissioner, Graham stepped outside the bounds of absolute 
    privilege.

[42]

The plaintiff submits that absolute privilege obtains only if the communication 
    to the statutory body was confidential, citing the decision of this Court 
    in
Hung v. Gardiner
(2003), 13 B.C.L.R. (4th) 298, 2003 BCCA 
    257, and in particular, the adoption at para. 7 of what was said by Smith 
    J. of the Ontario High Court of Justice in
Sussman v. Eales
(1985), 33 C.C.L.T. 156 at 159-60:

The 
    principle is the same.  It is a question of balancing two interests.  The 
    public interest should outweigh that of the individual for at least two reasons. 
     [First]
the immunity will only be conferred upon a citizen complaining 
    in a confidential way to a body created by statute
.  A communication of 
    that kind can hardly be said to be a publication of the kind that is apt to 
    harm one's reputation in the community to a degree sufficient to attract an 
    award of compensation.

Secondly, the right to engage in professional activities 
    must be the subject of rules governing them.  These rules cannot be enforced 
    without a corresponding right in the members of the public to complain uninhibited 
    and without fear of being found wrong and as a result being subject to actions 
    in defamation.  Surely it is a small price for a professional person to pay.

[Emphasis added.]

[43]

Thus, the plaintiff says that when copies of the complaint were distributed, 
    the complaint lost its confidentiality, and the occasion ceased to be one 
    of absolute privilege.

[44]

If confidentiality of the communication is an essential attribute for 
    absolute privilege, then I think it is relevant to examine the character of 
    the wider distribution to see whether the claim of absolute privilege remains 
    notwithstanding.  In that regard, I note that the complaint was not published 
    to the world at large but only to those two bodies to which the plaintiff 
    sent the Pivot report.  The complaint refers to the report and notes the plaintiff's 
    refusal to divulge the evidence said to support the allegations in the report.  
    Moreover, Graham, as Chief Constable, was in a reporting relationship with 
    the Police Board and was subject to determinations by the Police Complaint 
    Commissioner.  The subject matter of the complaint was highly relevant to 
    the relationship of Graham to these other bodies and so it was appropriate, 
    in my view, for him to communicate with them in the way he did (under the 
    protection of qualified privilege).  I conclude that while strict confidentiality 
    was not maintained, the publication to others was kept within such a narrow 
    compass that absolute privilege was not lost thereby.

[45]

I would not give effect to this ground of appeal.

Disposition


[46]

For the foregoing reasons, I would dismiss the appeal.

The 
    Honourable Mr. Justice Donald

I agree:


The Honourable Madam Justice Newbury

I agree:


The Honourable Madam Justice Levine


