(UPDATE January 10, 2013 – In reasons for judgement released today the BC Court of Appeal ordered a new trial in the below discussed case finding that the trial judge’s reasons did not adequatly address the important evidence presented at trial)
Important reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing lawsuits for damages against police officers when excessive force is used in the line of duty.
This week’s case (Camaso v. Egan) has been covered in the conventional press and I don’t intend to repeat all the well publicized details. From a legal perspective, however, this case is useful for anyone interested in the law of police officer liability in British Columbia.
In this week’s case the Saanich Police Department were called to deal with a disturbed man. Constable Dukeshire was one of the officers who responded to this call. Shortly after encountering the disturbed individual Constable Dukeshire shot him several times resulting in his death. He was found negligent making the City of Saanich liable for his actions under the principles of vicarious liability. Damages of almost $350,000 were awarded to the disturbed man’s survivors under the BC Family Compensation Act.
Mr. Justice Burnyeat of the BC Supreme Court went further and found the officer grossly negligent for the death. Paragraphs 269-308 are worth reviewing in full for anyone interested in this area of law. Some of the highlights of Mr. Justice Burnyeat’s reasons were as follows:
It is not in dispute that Constable Dukeshire shot Mr. Camaso. Having established that, the onus shifts to Constable Dukeshire to establish that the shooting was justified. In Prior v. McNab (1976), 16 O.R. (2d) 380 (Ont. H.C.), Reid J. stated in this regard:
… It is enough to allege and prove an assault. Plaintiff need not prove that the force used was excessive. He need prove only that it was used upon him. The onus of proving that the force was not excessive would lie on the policeman. This is clear from the decisions of our Court of Appeal.
The onus on a plea of justification in the use of force lies on him who asserts it: Miska v. Sivec,  O.R. 144, 18 D.L.R. (2d) 363. This applies to one who sets up the defence of self-defence (as in Miska) or on one who relies on a statutory duty: O’Tierney v. Concord Tavern Ltd., supra, per Roach, J.A., who said, at p. 534:
It was implicit in a plea of justification even based on a statutory duty that the degree of force used was not excessive and the party making that plea must prove it.
That onus would lie on the police if sued. (at p. 385)…
The “Use of Force Continuum” that is taught to all officers and which is part of the Policy of the Saanich Police Department provides for a continuum from “presence” to “communication” to “open hand control” to “taser” to “capsaicinoid aerosols” (pepper spray) to “empty hand impact techniques” to “impact weapons” to “lateral neck restraint” to “firearms”.
After Mr. Camaso came out from behind his vehicle the first time, Constable Dukeshire moved directly to “firearms” without going through any of the earlier stages of the continuum. After Constable Dukeshire saw that Mr. Camaso was not holding a weapon which could cause him harm from afar, Constable Dukeshire failed to deescalate the situation in order to establish “presence” and in order to establish “communication”. This failure to do so breached the duty of care which Constable Dukeshire owed to Mr. Camaso.
Rather than calling for backup, Constable Dukeshire pursued Mr. Camaso on his own. Saanich Police Department Policy required Constable Dukeshire to engage a supervisor. He failed to do so. Saanich Police Department Policy required Constable Dukeshire to take charge and coordinate the efforts of the other two Constables. He did not do so. Rather than pursuing Mr. Camaso as the leader of a team or as part of a team, Constable Dukeshire pursued Mr. Camaso without the knowledge of the location of Constables McNeil and Murphy, and without attempting to coordinate their activities with his own. No call was made by Constable Dukeshire for a supervisor to coordinate activities. No attempt was made by Constable Dukeshire to allow Constables McNeil and Murphy to catch up to him in order that they could assist him in apprehending Mr. Camaso under the Mental Health Act….
It was not reasonable for Constable Dukeshire to continue to aim his gun at Mr. Camaso when Mr. Camaso appeared to be complying by going down onto the ground as was requested by Constable Dukeshire. His service revolver should have been holstered….
Even with one or two potential weapons in Mr. Camaso’s hands, Constable Dukeshire who weighed almost one hundred pounds more and stood almost a foot taller than Mr. Camaso could not have had a reasonable belief that it was necessary to shoot Mr. Camaso for his own preservation. It was always apparent to Constable Dukeshire that Mr. Camaso did not have a gun in his hands. …
Putting myself in the position of Constable Dukeshire or putting a reasonable officer in the position of Constable Dukeshire, it is not reasonable to conclude that it is part of the responsibility of Constable Dukeshire to shoot Mr. Camaso three times and it is not possible on reasonable grounds to conclude that the force he used was necessary for the purpose of protecting himself and others from imminent or grievous bodily harm. Putting myself in the position of Constable Dukeshire or putting even an inexperienced officer in the position of Constable Dukeshire, it is not possible on reasonable grounds to conclude that the force that was used was necessary. Constable Dukeshire did not act on reasonable grounds when he shot Mr. Camaso.
I find that Constable Dukeshire breached the duty of care owed to Mr. Camaso when he did not use the least amount of force necessary to carry out his duties, when he failed to remain a safe distance away from Mr. Camaso, when he failed to properly assess the situation before approaching Mr. Camaso, when he failed to plan an appropriate method to deal with the situation, when he advanced on Mr. Camaso thereby failing to deescalate the situation once it appeared that Mr. Camaso was beginning to comply with his commands, and when he failed to wait for backup support. Constable Dukeshire breached his duty owed to Mr. Camaso to use only so much force as was reasonably necessary to carry out his legal duties.
In the circumstances, I find Constable Dukeshire liable in negligence because I find that there was duty of care owed to Mr. Camaso, that there was a breach of that duty of care, and that the breach of the duty of care caused the death of Mr. Camaso.
At the same time, Constable Dukeshire has failed to establish that the shooting was justified and that the force that he used was not excessive. In fact, the Plaintiffs have shown on the balance of probabilities that the force that was used was excessive. I find that Constable Dukeshire cannot rely on s. 25 of the Criminal Code of Canada or the provisions of ss. 16 and 28 of theMental Health Act. His use of force was not justified. I cannot find that Constable Dukeshire believed on reasonable grounds that it was necessary for his self-preservation to use the force that he did. I have reached the conclusion that Constable Dukeshire is liable in damages as a result of his failure to act in good faith and with reasonable care…
307]In reviewing all of the circumstances of this case, I conclude that Constable Dukeshire was grossly negligent. When the pursuit of Mr. Camaso commenced, Constable Dukeshire was not involved in a dangerous activity. However, as soon as Constable Dukeshire removed his service revolver from its holster and aimed it at Mr. Camaso, he was involved in an activity where it is plain that the magnitude of the risks involved were such that more than ordinary care had to be taken. If more than ordinary care was not taken, a misstep or a mishap was likely to occur such that loss of life or serious injury would be almost inevitable. More than ordinary care was not taken. The loss of the life of Mr. Camaso resulted. I also find Saanich vicariously liable for the damages caused by Constable Dukeshire.