Bobbi O'Shea poses for a photograph at the Pivot Legal Society offices in Vancouver on May 29, 2015. (Darryl Dyck/CP)The trial heard that O'Shea called 911 after suffering an anxiety attack from smoking crack cocaine in 2008. She expected to be taken to hospital but instead was detained in Vancouver's jail, where guards alleged she was unco-operative and placed her in the device, called a hobble.
Bakan found that the officer in charge of the jail failed to communicate information he had about her medical history to other guards, including that she suffered from anxiety, depression, asthma and a cold. This led to the guards' failure to "take into account her medical and emotional problems, resulting in an escalation of her anxiety," she wrote. O'Shea told the trial that she covered up a cell window with toilet paper to stop a male guard from seeing her use the toilet, prompting an officer to cuff her hands behind her back. After she moved her hands to her front repeatedly to wipe her badly running nose, she was placed in the hobble. The judge said in her ruling that the officer should have followed the policy for people who are arrested for public intoxication and brought O'Shea to see a nurse immediately after her arrival at jail. Bakan accepted that O'Shea felt "much pain" from the device, but did not find any assault or battery occurred or that officers intended to cause her pain or punishment.
Guards failed to "take into account her medical and emotional problems, resulting in an escalation of her anxiety."
She dismissed the action against the four constables, instead finding the city vicariously liable for the breach of standard of care.
Pivot Legal Society lawyer Doug King, who represented O'Shea, said it was unfortunate the decision did not come down harder on the use of the hobble.
"I don't feel like it sent the strong enough message about restraint devices and how dangerous they can be, and how horrible they are for the people in them," he said.
City of Vancouver found liable
He said Victoria Police stopped using the devices after a 15-year-old girl won $60,000 in a lawsuit against the department in 2008.
Vancouver Police Const. Brian Montague said unfortunately police are required to use the hobble from time to time. There are cases where someone is intent on harming themselves or others or exhibiting uncontrollable violent behaviour, he said.
"Any restraining device is used to help ensure not only the safety of officers, but the safety of the person in our custody," he said.
Similar lawsuit in Victoria
He said the VPD will review and examine the decision to determine if any changes to practices, policies and procedures are needed.
After her release, O'Shea began using crack cocaine heavily and became homeless for about a year. She's clean now and lives with her children, but said she suffers from post-traumatic stress disorder.
"I don't think it'll ever totally go away," she said. "I'll always be leery of the police. I'll always be untrusting, for the rest of my life."
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Vancouver police will review the decision
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