Assaulted by police?

Assaulted by police?

You have the right to sue the police if a police officer uses excessive or unnecessary force against you.

The excessive or unnecessary force may be applied directly (e.g. through physical handling, punching, or kicking) or through the use of a weapon (e.g. a baton, taser or police dog).

Police officers are permitted to use force in furtherance of the administration or enforcement of the law so law as they act on reasonable grounds and do not use more force than is necessary to effect their purpose in the circumstances.

When it comes to using more extreme levels of force, the law regulating that use of force is more stringent. For example, police officers are permitted to use force that is intended or likely to cause death or grievous bodily harm to a person to be arrested only if all of the following apply:

  1. the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
  2. the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
  3. the person to be arrested takes flight to avoid arrest;
  4. the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
  5. the flight cannot be prevented by reasonable means in a less violent manner.

RCMP misconduct
If you were assaulted by an RCMP officer, you should sue the Minister of Public Safety and Solicitor General for British Columbia.

Although the RCMP is a Federal organization, there is a policing agreement between the Government of Canada and the Province of British Columbia pursuant to section 20 of the Royal Canadian Mounted Police Act and section 14(1) of the Police Act. By virtue of this agreement, members of the RCMP are deemed provincial constables pursuant to section 14(2)(b) of the Police Act. Pursuant to section 11 of the Police Act, the Minister of Public Safety and Solicitor General of British Columbia is jointly and severally liable for torts committed by provincial constablesintheperformanceoftheirduties. Assaultandbatteryarebothtorts.Anassault technically occurs when someone is unlawfully placed in fear of violence whereas the actual

unlawful intentional infliction of force is a battery (e.g. unlawfully causing someone to fear being punched is assault, and unlawfully punching someone is battery).

You can also sue the individual police officer/s who assaulted you. However, s. 21 of the Police Act insulates police officers from personal liability for torts committed while performing police duties, unless the court concludes that the officer’s conduct was the result of “dishonesty, gross negligence or malicious or wilful misconduct”. Accordingly, you should only name individual police officers when there is evidence of dishonesty, gross negligence or malicious or wilful misconduct.

No notice needs to be given prior to commencing legal proceedings but you need to bring your claim within two years of the assault.

City/District Police misconduct
If you were mistreated by a police officer from a city or district, you should the city or district they work for. You can also sue the individual police officer/s who assaulted you. However, and as noted above, you should only name individual police officers when there is evidence of dishonesty, gross negligence or malicious or wilful misconduct.

When a police officer works for a city or district, you need to give the city or district notice of your intention to sue within 60 days of the assault. You can do this by sending a letter to the city or district which should include the time and place of the assault as well as a brief description of the incident. It does not matter if you do not know the name of the police officer/s yet.

You must file your civil suit with the courts within two years of the assault.

Damages
The amount of money you can recover in damages depends upon the injuries you suffered. The more severe and life altering the damage, the higher the award. More minor injuries such as a black eye will receive awards at the lower end of the scale whereas injuries resulting in long-term debilitating consequences such as a brain injury will be at the top end.

You will receive compensatory damages for:

  1. (a)  Pain and suffering and loss of amenity/enjoyment of life – these are called general damages or non-pecuniary damages*. The more severe and life altering the damage, the higher the award. More minor injuries such as a black eye will receive awards at the lower end of the scale.
  2. (b)  Economic/financial loss – these are called pecuniary damages. These types of damages can be easily calculated as they are financial and include things such as medical costs or loss of earnings or loss of capacity to work.

*Aggravated damages can also be claimed – these are not a separate head of damages, but instead are an augmentation of general damages to compensate for intangible emotional injuries.

Depending on the circumstance of the assault, you may also be able to claim punitive damages which are intended to punish the defendant for a deliberate act that caused harm, or gross negligence. Punitive damages are also meant to deter wrongful conduct and teach the wrongdoer that tort does not pay. Punitive damages are triggered by conduct that may be described by such epithets as high-handed, malicious, vindictive, and oppressive. These damages are harder to obtain as the conduct of the defendant needs to be egregious – they express outrage at the defendant’s conduct. Furthermore, punitive damages should be awarded only if all other remedies have been found to be inadequate to accomplish sufficient punishment.

Recent case example
In the recent reported case of Degen v British Columbia (Public Safety) 2023 BCSC 508, the plaintiff was awarded a total of $317,120 in damages. https://www.bccourts.ca/jdb-txt/sc/23/05/2023BCSC0508.htm

The plaintiff was a driver of a truck parked on a street outside a lumberyard. Police were called after a report that he may be under the influence of alcohol and was asleep in the sleeping area behind the seats. Police attended and found the plaintiff sleeping in his truck with the engine running. They tried unsuccessfully to engage with him by banging on the truck. The police believed there existed lawful grounds to arrest the plaintiff for obstruction of justice and, in fact, so proceeded to effect the arrest. They broke the window of the truck and both officers deployed their respective conductive energy weapons (CEWs). The plaintiff was tasered twice while inside the cab of his truck.

The plaintiff was transported to the RCMP detachment in Surrey and ultimately charged with obstruction of justice and assaulting a police officer. These charges were stayed some months later.

The plaintiff brought a civil action in tort, alleging that he was not only was he twice tasered, but also punched multiple times in the head and torso by both officers inside the cab. The plaintiff said he suffered a multitude of injuries, including mild traumatic brain injury. He sought damages; including punitive damages.

The trial judge found that the tasering of the plaintiff was unreasonable in the circumstances:

“ I am not persuaded that the use of CEWs was proportionate to the threat of a closed fist strike from the plaintiff. In coming to this conclusion, I am aware of the need for police to react quickly to situations. However, the level of force used in this circumstance was, in my view,

disproportionate to the perceived threat. The officers had already gained access to the cab of the truck. The plaintiff was accessible.”

The trial judge rejected the plaintiff’s claim that he suffered from a cognitive disability as a result of the assault due to unreliable evidence. He, however, concluded that the plaintiff suffered and continued to suffer headaches which he found “has developed to a chronic post- traumatic headache – whiplash tension-type.”. and “… the chronic headache I find does, to some degree, intrude upon the life of the plaintiff. This intrusion must be taken into account in any assessment of damages.”

He also found the plaintiff suffered lacerations as a result of the incident as well as a left wrist sprain, that the sleep of the plaintiff had been impacted as well as his concentration, that there was aggravation of his long-standing pre-existing condition of anxiety and he now suffered light and noise sensitivity, and that his reading ability was somewhat impacted due to headaches.

The plaintiff’s total award of $317,120 came from the following:

  • $160,000 in non-pecuniary damages.
  • $15,000 as a nominal recognition of past income loss related to the injuries found.
  • $132,500 for loss of future capacity (two and a half years’ salary).
  • $7,500 for the cost of future care. (medications, occupational therapy etc)
  • $2,120 in special damage for cost paid for legal representation in criminal proceedingsthat were initially brought and then stayed.The trial judge concluded that “ in my view the evidence and the findings in this case do not rise to the kind of conduct that supports an award of punitive damages. I make no award of punitive damages.”Suing the police can be a long and arduous process. It should not be undertaken lightly but for some who have experienced police brutality, it can be a worthwhile and necessary step in their journey of recovery leading to financial compensation, vindication and accountability.If you need advice or assistance, we have lawyers ready and willing to help.Tonia Grace/David Honeyman June 2023

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