



COURT OF APPEAL FOR ONTARIO

CITATION: Albanese v. Franklin, 2018 ONCA 431

DATE: 20180504

DOCKET: C64839

MacPherson, Hourigan
    and Benotto JJ.A.

BETWEEN

Franco Albanese

Plaintiff (Appellant)

and

Adam Franklin, Robert Kish, Graeme Orr and the
    Original
Municipality of Niagara Police Services Board

Defendants (Respondents)

Margaret A. Hoy, for the appellant

Mickey Cruickshank, for the respondents

Heard and released orally: May 1, 2018

On appeal from the judgment of Justice Alan Whitten of
    the Superior Court of Justice dated November 3, 2016.

REASONS FOR DECISION

[1]

The appellant brought an action against three
    police officers and the Police Services Board claiming damages arising out of
    an alleged unlawful arrest on October 14, 2006. Following eight days of
    evidence, the trial judge dismissed the action.

[2]

The appellant appeals on the basis that: (i) the
    evidence did not support the trial judges finding that he was intoxicated,
    belligerent and aggressive; (ii) the trial judge erred in concluding that he
    had caused a disturbance and the arrest and subsequent detention was without
    cause; and (iii) the trial judge did not properly consider the effect of the
    appellants acquittal on the criminal charges arising from the incident.

[3]

We do not accept these submissions.

[4]

The trial judge made findings of fact based on
    the evidence of witnesses who testified about the appellants conduct on the
    day in question. He accepted the evidence of Mr. Huber who testified that he
    saw the appellant bothering patrons in a Starbucks, stagger to his car and
    struggle with his keys. Mr. Huber offered to get the appellant a ride but was
    met with an obscenity in reply. Mr. Huber then approached Officer Franklin (one
    of the respondents) who parked his cruiser directly behind the appellants car
    to stop him from driving. Officer Franklin testified that he saw the appellant
    weaving, unsteady on his feet and drunk. When Officer Franklin tried to
    approach him, the appellant pushed the officer away. The other two respondent
    officers arrived and ultimately subdued the appellant. All the while the
    appellant was yelling obscenities, aggressive and abusive. This conduct
    continued on the way to and at the police station where he exhibited symptoms
    of intoxication including bloodshot eyes, unsteadiness on his feet and the smell
    of alcohol. The trial judges findings of fact that the appellant was
    intoxicated, belligerent and aggressive were open to him on this evidence.

[5]

The trial judge applied the elements of the
    offence of causing a disturbance as set out in
R. v. Lohnes
, [1992] 1
    S.C.R. 167
.
He concluded that the observations of Officer Franklin
    brought his conduct beyond mere annoyance or irritation and that the appellant
    was a menace to the public peace. The public interest made it necessary to
    arrest him and let him sleep it off. The facts accepted by the trial judge
    support this conclusion.

[6]

The interplay between the appellants acquittal
    on the criminal charges and his subsequent civil law suit was correctly dealt
    with by the trial judge. He relied on this courts decision in
Polgrain Estate
    v. Toronto East General Hospital et al
.,

2008 ONCA 427, to conclude
    that the different parties and different burdens of proof meant that concerns
    about re-litigation are not engaged. The appellants acquittal does not mean
    the fact of an unlawful arrest is a foregone conclusion.

[7]

Lastly, with respect to damages, on the record
    there was ample evidence to support the trial judges conclusion that the
    appellant was 100% responsible for any injuries he may have sustained.

[8]

For these reasons the appeal is dismissed with
    costs payable to the respondents fixed at $12,000 inclusive of disbursements
    and H.S.T.

J.C. MacPherson J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


