Pubdate: Tue, 09 Nov 2010
Source: Kawartha Lakes This Week (CN ON)
Copyright: 2010 mykawartha.com, Metroland Printing, Publishing
Contact: http://www.mykawartha.com/generalform
Website: http://www.mykawartha.com/community/kawarthalakes
Details: http://www.mapinc.org/media/2213
Author: Barbara-Ann MacEachern

POLICE, CITY DENY WRONGDOING IN SEARCH OF DOCTOR'S HOME

(LINDSAY) Statements of defence are being filed denying any wrongdoing
in the multi-million dollar lawsuit the chief of anesthesia at Ross
Memorial Hospital has brought against several police officers, the
city, and a woman who used to work for the Kawartha Lakes Police
Service.

A joint statement of defence for Kawartha Lakes Police Detective
Constable Mark Donaldson and the Corporation of the City of Kawartha
Lakes was filed in late August, however no statements have been filed
for OPP Detective Constable Lee Fulford or Constables John Doe, who
were not identified in the statement of claim.

The final defendant is Rhonda Stewart, who the statement of claim
identifies as a previous civilian employee of the Kawartha Lakes
Police Service and neighbour to Dr. Rainkie. Ms Stewart's lawyer has
filed a notice of intent to defend against the lawsuit, but no
statement of defence has been filed in court.

According to a statement of claim filed by Dr. Kristopher Rainkie's
lawyer, Wylita Clark on Feb. 3, police executed the warrant at Dr.
Rankie's Sweetnam Drive home in Lindsay on Feb. 4, 2008, looking for a
marijuana grow operation. No charges were ever filed and the statement
of claim holds that there was no evidence of wrongdoing whatsoever.

Because of the incident, Dr. Rainkie alleges, among other things, that
he has experienced damage to his reputation, anger, sleeplessness,
post-traumatic stress, hypervigilence and mistrust of police.

Dr. Rainkie is seeking more than $2 million from the defendants,
including "$1,000,000 in damages for defamation and damage to
reputation, negligent and/or bad faith investigation, abuse of
authority, abuse of process, trespass, invasion of privacy, wrongful
confinement and damage to property."

According to the statement, claims against Ms Stewart include "damages
in the amount of $500,000 for defamation and damage" and  $500,000 in
punitive damages.

A statement of defence and crossclaim submitted by lawyer Kevin
McGivney of Borden Ladner Gervais LLP on behalf of Det. Const.
Donaldson and the city agrees that a search warrant was issued for Dr.
Rainkie's home for evidence of a cannabis marijuana growing operation,
but the vast majority of claims made by Dr. Rainkie in his statement
are being denied.

"These defendants therefore ask that this action be dismissed as
against them and given the unfounded and outrageous allegations of bad
faith, fraud and malice that these defendants be awarded their costs
on a substantial indemnity basis," the claim reads.

The statement holds that the City of Kawartha Lakes does not in fact
operate the Kawartha Lakes Police Service, and should therefore be
dropped in the suit. The defendants are also claiming that they have
no knowledge of who the unnamed officers mentioned in Dr. Rainkie's
lawsuit are.

Further, the defendants allege in their statement that if the doctor
sustained any injuries in the execution of the search warrant (which
they deny), they, "were not caused by any fault, neglect, negligence
or breach of duty on the part of these defendants or on the part of
anyone for whom these defendants may be in law responsible."

The statement alleges that Det. Const. Donaldson received information
about a possible marijuana grow operation at the property in late
December 2007. It goes on to lay out evidence consistent with the grow
operation claim including windows being covered with yellow paper or a
tin foil material, venting between two upstairs windows, sounds
consistent with an exhaust fan or a blower, an odour of marijuana that
seemed to come from the residence and the use of infrared
thermography, which demonstrated abnormal thermal heat coming from the
home.

"These defendants plead that at all material times, the investigation
leading to the obtaining of the search warrant was conducted in a
reasonable and competent fashion without negligence and in good faith
in compliance with their duties and obligations pursuant to the
provisions of the Police Services Act, the Controlled Drug and
Substances Act, of the Criminal Code and the common law," the
statement of defence reads.

The statement further contends that on Feb. 4, 2008 Det. Const.
Donaldson and members of the Central East Drug Unit executed a search
warrant at the doctor's home at 1:18 p.m.

"Upon arrival, the officers attempted for approximately 10 minutes to
have the plaintiff open the door voluntarily and despite the plaintiff
clearly observing the officers outside, he failed to do so."

The defendants also deny that the doctor was "paraded down the stairs
and past his open front door, in plain sight of people in the street,
wearing only his underwear," contending instead that the door was
closed and no neighbours or passersby were around at the time.

The statement claims that officers used minimal force to enter the
home and search it under the search warrant provisions. The defendants
also claim that they fully identified themselves and that Dr. Rainkie
was understanding and co-operative throughout the search. The
statement reads that by 1:41 p.m. officers concluded there was no
evidence of a grow operation and apologized to Dr. Rainkie for the
inconvenience and left him with a number to call if he had any
questions or complaints and that officers secured the home when they
left.

The defendants further deny that Dr. Rainkie suffered the damages he
alleges in his lawsuit and ask for strict proof of damages they
describe as excessive, too remote, not recoverable by law and not
mitigated by the plaintiff.

The statement also reads that details of the search of the plaintiff's
home were out of the control of the defendants and were a result of
plaintiff's actions, through seeking publicity of the incident through
the press. The defendants also deny that any of the doctor's
constitutional rights were infringed upon.

A crossclaim against Rhonda Stewart is also included in the statement
of defence including asking for, "Full contribution, indemnity and
relief over in respect of any successful claim made against these
defendants by the plaintiff at the trial of these actions," as well as
asking for pre- and post-judgement interest and their costs of
defending the original statement of claim and their crossclaim from Ms
Stewart.
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