A prominent Kitchener, Ont., lawyer says “a lingering odour of malcontent” over his arrest for obstruction of justice at a Tim Hortons in 2010 has prompted him to launch a multimillion-dollar lawsuit against local police.
“It may have been done differently and there may never have been charges laid had there been a thorough investigation,” says Hal Mattson of his treatment by police on the afternoon of Nov. 8, 2010. That’s when police arrested him inside a Kitchener Tim Hortons across the street from the court for allegedly convincing a witness to withhold information during a preliminary hearing in a criminal case.
Superior Court Justice John Sproat tossed the case against Mattson in May, saying it would require him to undertake “impermissible speculation.”
Mattson, who once represented convicted killer Michael Rafferty, is suing for $5.5 million for wrongful arrest, detention, confinement, and assault by police.
Mattson’s statement of claim says Waterloo Regional Police Service officers “arrested the plaintiff in circumstances where they knew or ought to have known that no criminal offence had been committed.”
The lawyer also says police held him unnecessarily for 3-1/2 hours before releasing him on a promise to appear.
Mattson is seeking $2 million in damages for defamation, $1 million in special damages, $2 million for breach of constitutional rights, and another $500,000 in punitive damages. In addition, Mattson wants compensation for the cost of pursuing the lawsuit.
The arresting officers were acting out of malice, the claim states. The lawsuit names the Waterloo regional police services board, seven officers, and police chief Matt Torigian as defendants.
Waterloo Regional Police Service spokesman Olaf Heinzel could only say the police board is preparing its defence. “The matter has been referred to the police board’s legal counsel and they’re dealing with the matter,” he says.
At the time of his arrest, Mattson told Law Times four officers approached him inside the coffee shop and warned him more officers were on standby.
The lawsuit accuses Torigian of failing to ensure the defendant officers were “properly trained in investigative techniques and knowledge of the law they are expected to enforce.” The police chief authorized Mattson’s arrest based on a flawed investigation, the claim alleges.
Although there’s a mention of Mattson being “battered” by police, there’s no description of a physical assault in the lawsuit. Brian Kelly, Mattson’s lawyer, declined to comment on the lawsuit.
Mattson often appears in criminal cases at the court across the street from the coffee shop where his arrest took place. Although the obstruction of justice case eventually ended in his favour, he says the legal ordeal had an impact on his reputation among “some participants in the justice system.”
“It makes it difficult to deal with those people,” he says. “I mean, you have to deal with them every day, right?”
In his claim, he alleges the arrest “publicly humiliated” him and aimed to “demean the plaintiff in the presence of his friends, peers, colleagues, clients, and the public in general.” None of the allegations have been proven in court.
In the 2010 case before Sproat, police claimed Mattson had a conversation with Tyson Holmes, a witness in a case that involved five people accused of attempted murder and drug-related offences.
During his chat with Holmes, police alleged Mattson convinced him not to identify the principal accused in the matter by his street name, Chico. They said he did so in order to undermine the prosecution’s case.
Later, Holmes was hesitant to testify. Mattson wasn’t acting for any of the defendants but had previously represented Holmes in a different matter.
The judge said the police lacked evidence to back up their claim against the lawyer.
“There is . . . nothing in the evidence to suggest [Mattson] knew about the content of Holmes’ statements to police and the significance of the name Chico to the prosecution,” Sproat said in his ruling.
“To draw that inference would require impermissible speculation on the part of the trier of fact.”
In his statement of claim, Mattson alleges police “relied upon witnesses knowing that the said witnesses suffered from mental health-issues and/or past criminal histories and they failed to diligently, fairly, and objectively test the accuracy or veracity of that evidence before acting.”
As a result, the Crown felt there was a case, the lawsuit maintains. “They prepared and created a Crown brief that on its face was not a true reflection of the facts and circumstances investigated, which resulted in the Crown attorney being satisfied that there was a reasonable prospect of conviction.”
Following his arrest in 2010, he told Law Times he didn’t like the public nature of the officers’ actions that November afternoon.
“I thought it was unnecessary to arrest me in a public place, put handcuffs on me, and hold me for 3-1/2 hours,” he said. “Police have their tactics and I’m not sure why.”
Since then, he says the arrest and charge have left him with stress, depression, and insomnia. “It was very stressful in hindsight. Now that it’s over and I got a chance to reflect on it . . . it was very stressful.”
Mattson, who has practised criminal law for 28 years, said the ordeal gave him a glimpse of what his clients go through.
“I have a new-found understanding of how people feel when they’re being arrested and put through the process I was,” he said after his arrest.
“Because we do the job every day, we just assume it’s nothing. But having been through it, I think there’s a lot of people who are in positions of authority who would gain a lot of understanding of how arrested persons feel if this happened to them.”
The case involving the five accused individuals ended with three of them pleading guilty to aggravated assault. The fourth person pleaded guilty to accessory after the fact and the charges against the fifth accused were withdrawn.
For more, see "Arrested lawyer decries police tactics."