



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



Camaso Estate v. Saanich (District),









2013 BCCA 6




Date: 20130110

Docket: CA038998

Between:

The Estate of
Majencio Camaso, Deceased, Maria Teresa Camaso and Christine Kate Camaso, an
infant by her guardian Ad Litem,
Maria Teresa Camaso

Respondents

(Plaintiffs)

And

The Corporation of
the District of Saanich, Kristopher Dukeshire

Appellants

(Defendants)




Before:



The Honourable Madam Justice Saunders





The Honourable Mr. Justice Low





The Honourable Madam Justice D. Smith




On appeal from: 
Supreme Court of British Columbia, April 13, 2011
(
Camaso v. Egan
, 2011 BCSC 456, Victoria Docket No. 06 0184)




Counsel for the Appellants:



M.J. Hargreaves, D.C.
  Windsor-Doyle





Counsel for the Respondent Estate:



A.C. Ward, N.M.G.
  Chantler





Counsel for the Respondents,
H.M.T.Q. & D. Morris



T.S. Saunders





Counsel for the Intervenors, Cdn. Police
Association and B.C. Police Association:



S.M. Coristine





Place and Date of Hearing:



Vancouver, British
  Columbia

September 5 and 6,
  2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January
  10, 2013





Written Reasons by:





The Honourable Mr. Justice Low





Concurred in by:





The Honourable Madam Justice Saunders
The Honourable Madam Justice D. Smith








Reasons for Judgment of the Honourable
Mr. Justice Low:

[1]

Majencio
Camaso was 33 years old when he died on 11 July 2004 after being shot by the
appellant Kristopher Dukeshire, a police constable employed by the appellant municipality,
The Corporation of the District of Saanich.  The widow of the deceased man,
Maria Teresa Camaso, and their infant daughter brought an action against the
appellants and others for damages for wrongful death under the
Families
Compensation Act
, R.S.B.C. 1996, c. 126.  They were successful at trial
as against the appellants and were awarded damages totalling $235,000.  The
trial judgment can be found at 2011 BCSC 456.

[2]

The
action was dismissed as against three other police officers employed by Saanich
 Cst. Tara McNeil, Cst. Kathleen Murphy and the Chief Constable, Derek Egan  as
well as against Derek Morris, a paramedic, and the Province of British
Columbia, his employer.

[3]

Not
all claims pleaded against Cst. Dukeshire and Saanich were successful.  The trial
judge rejected assertions of a breach of duty of care by Saanich (and Chief Constable
Egan) relating to training of officers and failure to provide them with certain
equipment.  He found that the investigation of the shooting was deficient in
many respects and therefore negligent but concluded that Saanich and its police
officers did not owe a duty of care to the plaintiffs in that respect.  In any
event, the plaintiffs failed to prove damages flowing from that negligence. 
Finally, the judge found a claim against Cst. Dukeshire (and against the other
two constables and Chief Constable Egan) for misfeasance in public office to be
unproven.

[4]

None
of the dismissed claims is the subject of appeal or cross appeal.

[5]

The
appellants contend the trial judge erred in finding Cst. Dukeshire negligent in
causing the death of Mr. Camaso.  They seek an order dismissing the action
as against them or, in the alternative, an order for a new trial.  They also
say the judge erred in awarding general damages to the respondents.  Finally,
they say the judge erred in awarding special costs against them and in ordering
that they reimburse the respondents for costs awarded against the respondents
in favour of those defendants against whom no liability was found (a
Sanderson order).

[6]

The
respondents cross appeal on the issue of damages.  They say the amounts awarded
were inordinately low.

[7]

It
is my opinion that the trial judge erred in law in his assessment of the body
of evidence before him and that the appropriate remedy is a new trial rather
than dismissal of the action as against the appellants.  Because I have reached
this conclusion, I will confine my recitation of the facts to matters that do
not appear to be in dispute.  I will also refer to evidence not mentioned by
the trial judge in his reasons.  In doing these things, I do not intend to bind
the judge presiding at a new trial to any findings of fact.

[8]

It
is not necessary to determine the damages or costs issues raised by the appellants
or to consider the cross appeal.

Facts

[9]

On the morning of 11
July 2004, a Sunday, Mr. Camaso, who had a history of mental illness, was
acting strangely.  He told his wife that a piece of red balloon taped on the
wall of their apartment was some kind of high-tech watching device and they
were using it to watch him.  He told his wife that she was not to touch it.

[10]

Mr. Camaso
used a rolling pin to destroy a television set, a computer and light fixtures. 
Ms. Camaso dressed her daughter so they could leave the apartment.  She
saw Mr. Camaso in the kitchen holding a container of gasoline and a
lighter.  He told her to take their daughter out of the apartment because I
dont want to hurt you.

[11]

At some point, Ms. Camaso called 911 from the apartment.  She
reported that her husband was losing control of himself.  She said she needed
police assistance.  The operator asked if it involved medical issues and Ms. Camaso
said it did.

[12]

Ms. Camaso testified that her husband had been off his medication for
about two weeks.  The night before the 911 call, he did not sleep but walked
around the apartment.  Around 2:00 a.m., he stated, as noted by the trial judge
at para. 23, that everyone in Canada was a terrorist, he was not afraid
to die, he was talking about things that he had read in the Bible, and that the
world was going to end soon because of all of the terrorists.

[13]

At 9:01 a.m. there was a dispatch of an ambulance to the sprawling apartment
complex that contained the Camaso residence.  Constables Dukeshire, McNeil and
Murphy were also sent to the scene by a police dispatcher.  Constable Dukeshire
was the assigned officer.  He was told that a female caller had reported that
her husband was out of control; that there was a medical problem; that the 911 call
had been abandoned; that on a call back both the female and a male answered and
it appeared the female couldnt talk; and that the dispatcher did not know what
the problem was.

[14]

The three constables traveled to the scene separately.  In later
dispatches each was advised that it appeared the man was off his meds and was
throwing things around.  They were further advised that it was assumed (correctly,
as it turned out) that the man was the person named in 2001 records as having
been admitted to hospital for observation because he was deranged and felt
people were out to hurt him.

[15]

The trial judge described what the police officers observed at the
Camaso apartment:

[29]      It became apparent to
the three ambulance attendants and the three Constables that there had been a
fire in the Camaso suite.  There was a strong smell of gasoline outside the
building and there was damage within the apartment.  The damage included a
scorched floor and a broken screen on the television set.  The apartment was not
occupied when Constables Dukeshire, McNeil and Murphy entered it.  The Saanich
Fire Department was called and dispatched.  Despite the fact that there was no
one at the scene who required treatment, the ambulance attendants waited until
the Saanich Fire Department arrived.

[16]

As the result of another 911 call made by Ms. Camaso from a
neighbours residence, Cst. McNeil learned from the police dispatcher that Ms. Camaso
believed her husband left in a green vehicle and the dispatcher was having
somebody search the licence plate.  The dispatcher also provided the address in
the apartment complex to which Ms. Camaso had gone.  The three constables
returned to their vehicles intending to go to meet Ms. Camaso.

[17]

Mr. Camaso returned to the apartment building where he was refused
entrance by Danny Carlson, an ambulance service trainee who had accompanied the
paramedic defendant, Derek Morris, to the scene.  Mr. Carlson asked Mr. Camaso
if he was hurt but the man said he was fine.  Mr. Camaso continued toward
the door but the building manager told him he could not enter.  Mr. Morris
was present and testified that Mr. Camaso reluctantly complied with the
managers direction.

[18]

Mr. Morris reported Mr. Camasos location to his dispatcher so
the police officers could be informed.  Upon being so advised, the three
officers ran from their vehicles to the apartment building.

[19]

In the meantime, Mr. Camaso began to walk away and Mr. Morris
followed him.  He informed dispatch that Mr. Camaso was running
northbound.  Mr. Morris ran after him.  Mr. Camaso stopped and Mr. Morris
engaged him in a conversation that he thought, after initial verbal resistance
from Mr. Camaso, began to have a calming effect on the man.  Then Mr. Camaso
tensed up and ran off quickly.  Mr. Morris pursued him.

[20]

Constable Dukeshire caught up to Mr. Morris and yelled Stop,
Police, stop.  Mr. Morris identified Mr. Camaso as the man the
constable was pursuing.  Both of them continued the pursuit with the constable eventually
in the lead.

[21]

Mr. Camaso arrived at an elementary school parking lot where his
car sat.  The front of the vehicle faced Cst. Dukeshire as he arrived at the
parking lot.  Mr. Camaso opened the trunk of the car and reached inside. 
The constable stopped and drew his firearm.  Mr. Camaso emerged with a
long, thin object in his hand.  Mr. Morris ran across the street to take
shelter by a church.

[22]

Constable Dukeshire uttered loud commands to Mr. Camaso to drop the
item and get down on the ground.  Mr. Camaso moved to the back of the car
and came back to the side of the car with his hands, both empty, in the air. 
He bent down as if he was complying with the constables order.

[23]

Constable Dukeshire was relieved and took several steps forward to get a
better view of Mr. Camaso.  However, Mr. Camaso straightened his
body, ran to the rear of the vehicle, reached into the trunk and emerged again
holding a crowbar, a metal pipe, or both.  He ran at the constable who
continued to yell commands.  There was evidence from eyewitnesses, including Mr. Morris,
that Mr. Camaso said kill me, kill me or so you kill me now, you kill
me now as he ran toward Cst. Dukeshire.

[24]

The constable backed up quickly as Mr. Camaso bore down on him. 
The trial judge made no finding of fact as to Mr. Camasos speed but it
seems to emerge from the whole of the evidence that he was moving fast while
brandishing a potentially lethal weapon, perhaps two.

[25]

Constable Dukeshire fired three shots.  The judge made no specific
finding in this regard, but it appears that two of the bullets struck Mr. Camaso
while the third struck a crowbar he was brandishing with that bullet
fragmenting and pieces of it striking him.  The crowbar had a mark on it and
there was a serious injury to Mr. Camasos finger.

[26]

Mr. Camaso was pronounced dead at hospital.

[27]

At trial, each party filed a report of a police expert with respect to
the conduct of Cst. Dukeshire, including the shooting.  Each expert was cross
examined at length.

[28]

The respondents expert was Professor R. Paul McCauley, a criminology
professor from the Indiana University of Pennsylvania and a former Pennsylvania
municipal police officer.  His two reports totalled over 30 pages, though they
also discussed matters other than Cst. Dukeshires actions, such as the police
investigation of the shooting.  Professor McCauley stated that if one examines
the snap-shot in time when Cst. Dukeshire fired at Mr. Camaso, the use of
deadly force was reasonable and justified; however, the situation that made the
shooting necessary was created by Cst. Dukeshire.  The constable knew Mr. Camaso
was emotionally disturbed and off his medication.  He created the fear and
danger that led to Mr. Camasos death.  Cst. Dukeshire failed to
de-escalate the pursuit and  continued to pursue and yell at Mr. Camaso;
failed to coordinate a field plan for apprehending Mr. Camaso with the
other officers; and created fear by yelling, pointing his weapon, and walking
toward Mr. Camaso.

[29]

There was a dispute as to the extent to which the court should receive
the opinion evidence of Professor McCauley.  At a pretrial hearing, the trial
judge ruled that Professor McCauleys evidence would be confined to police
practices in the United States.  At trial, the judge held that some of his
opinions were relevant but failed to clarify which of them were admissible on
that basis.  In this court, the appellants say this put them in the position of
having to cross examine an expert who, in the pretrial ruling, had been
determined to lack qualification to provide opinions as to Canadian policing
standards.  The appellants say they were further hampered in their cross
examination of the witness because they did not know which of his opinions had
been received by the court as being relevant.  I do not understand the
appellants to raise this as a discreet ground of appeal, but they and this
court are left with an incomplete understanding of the extent to which the
opinions of Professor McCauley were admitted into evidence at trial.

[30]

The appellants expert was Vancouver Police Department Sergeant Mark
Horsley, an officer with 22 years experience and a qualified expert in use of
force.  His report was 27 pages and was focused on the actions of Cst.
Dukeshire and the other officers.  In Sgt. Horsleys opinion, Cst. Dukeshire
appropriately responded to the situation and met his duty to attempt to
apprehend Mr. Camaso.  He used presence and loud commands to attempt to
subdue Mr. Camaso.  Cst. Dukeshire appropriately drew his gun, in a
further attempt to secure compliance, after Mr. Camaso escalated the
situation by moving to the rear of the vehicle and opening the trunk.  In Sgt.
Horsleys opinion, Cst. Dukeshire was justified in drawing his gun and shooting
Mr. Camaso, who repeatedly refused to comply with demands and who
demonstrated persistent and sustained intent to attack Cst. Dukeshire.  His
performance was text book.  Confronted with deadly force, Cst. Dukeshire
had no choice but to shoot Mr. Camaso.  In the face of a person wielding
a crowbar and a pipe, it would not have been reasonable for a police officer to
expose himself to threat of injury or death by first using empty-hand control,
pepper spray, a baton, or a Taser.  (Constable Dukeshire had a baton and pepper
spray but not a Taser.)

[31]

The trial judge did not refer at all to the opinions of Professor
McCauley and referred to those of Sgt. Horsley only with respect to some minor
points.  If the opinion of either (or both) of these experts had been accepted
by the court with respect to justification for the shooting (as opposed to the
conduct of Cst. Dukeshire up to the point Mr. Camaso attacked him), the respondents
case would have rested solely on whether Cst. Dukeshire was negligent during
the pursuit and, if he was, whether that negligence caused Mr. Camaso to
mount his attack of the constable in the school parking lot.

[32]

It should also be noted that, if the court accepted the overall opinions
of Sgt. Horsley, the negligence claims with which we are concerned in this
appeal, as well as the action itself, would have been dismissed.  However,
although the parties on both sides focused substantially on the opinions of the
two experts, we do not know the extent to which the expert evidence was
accepted or rejected.  Nor do we know the reasons for reliance or lack of
reliance on this important evidence.

Grounds
of appeal

[33]

The appellants contend the trial judge erred as follows:

(1)      in
depriving Cst. Dukeshire of the applicable statutory defences;

(2)      in
finding that Cst. Dukeshire was negligent in his conduct both before and at the
time of the shooting;

(3)      in
failing to address adequately, or at all, the issue of causation;

(4)      in
the alternative, in finding that Cst. Dukeshire was grossly negligent
.

[34]

The first and second grounds of appeal can be discussed together.

[35]

Under s. 21(3)(a) of the
Police Act
, R.S.B.C. 1996, c. 367,
a police officer is personally liable only if gross negligence is proven but
his or her employer is liable for the officers ordinary negligence.  It will
not be necessary to discuss the fourth ground of appeal.

Trial
judgment

[36]

Citing
Prior v. McNab
(1976), 16 O.R. (2d) 380 (Ont. H.C.), the
trial judge correctly observed that the onus was on the appellants to prove
that the force used by Cst. Dukeshire was not excessive.  It should be noted,
however, that this did not relieve the plaintiffs from proving, as they had pleaded,
that Cst. Dukeshire was negligent in the manner he dealt with Mr. Camaso
during the pursuit.  Nor were they relieved of the onus of establishing that
such negligence, if proven, caused the death of Mr. Camaso, to the extent
the case rested on that theory of liability.

[37]

The judge referred to the statutory provisions relied upon by the
appellants in support of their position that Cst. Dukeshire did not use
excessive force in the circumstances.

[38]

Section 25 of the
Criminal Code
, R.S.C. 1985, c. C-46 reads
(my emphasis):

(1) Every one who is required or authorized by law to do
anything in the administration or enforcement of the law

(
a
) as a private
person,

(
b
) as a peace officer
or public officer,

(
c
) in aid of a peace
officer or public officer, or

(
d
) by virtue of his
office,

is, if he acts on reasonable grounds, justified in doing what
he is required or authorized to do
and in using as much force as is
necessary for that purpose
.

...

(3) Subject to subsections (4) and (5), a person is not
justified for the purposes of subsection (1) in using force that is intended or
is likely to cause death or grievous bodily harm
unless the person believes
on reasonable grounds that it is necessary for the self-preservation of the
person or the preservation of any one under that persons protection from death
or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting
the peace officer, is justified in using force that is intended or is likely to
cause death or grievous bodily harm to a person to be arrested, if

(
a
) the peace officer
is proceeding lawfully to arrest, with or without warrant, the person to be
arrested;

(
b
) the offence for
which the person is to be arrested is one for which that person may be arrested
without warrant;

(
c
) the person to be
arrested takes flight to avoid arrest;

(
d
)
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

(
e
) the flight cannot be prevented by reasonable
means in a less violent manner.

[39]

Sections 16 and 28 of the
Mental Health Act
, R.S.B.C. 1996,
c. 288 provide (my emphasis):

16   A person is not liable in damages as the result of doing
any of the following in good faith and with reasonable care:  ...

(f.1)      if a police officer or constable, apprehending a
person under section 28 (1);

28  (1) A police officer or constable may apprehend and
immediately take a person to a physician for examination if satisfied from
personal observations, or information received, that the person

(a)
is acting in a manner likely to endanger that
persons own safety or the safety of others, and

(b)
is apparently a person with a mental disorder
.

[40]

I understand the respondents concede that the apprehension of Mr. Camaso
under s. 28 of the
Mental Health Act
was necessary.  Although it
was not so stated by the trial judge, it appears to me that Mr. Camasos
apprehension was necessary because he was acting in such a way that he was a
danger to others as well as to himself.  The trial judge seems to have
overlooked the fact that Mr. Camaso had put the safety of many people at
risk by starting a fire in his apartment.

[41]

The
trial judge found that Cst. Dukeshire was negligent during the pursuit of Mr. Camaso
and in shooting Mr. Camaso while under attack from him.

[42]

As
to the events preceding the physical attack initiated by Mr. Camaso, the
trial judge reached the following general conclusion:

[280]    From the nature of the
advice that he received, Constable Dukeshire knew that Mr. Camaso on a
previous occasion had exhibited paranoid tendencies as he felt people were out
to hurt him.  Constable Dukeshire also knew that Mr. Camaso was a person
that needed to be apprehended under s. 28 of the
Mental Health Act
. 
From the 2001 entry, Constable Dukeshire knew that Mr. Camaso had no
criminal record.  From the advice that he had received from Police Dispatch, he
knew that Mr. Camaso was off his meds, and that he was throwing things
around.  While Constable Dukeshire may well have assumed that it was Mr. Camaso
who had started the fire in the apartment, it was not reasonable for Constable
Dukeshire to assume that he was pursuing an arsonist.  Instead of pursuing Mr. Camaso
as a person with a mental disorder so that he should be apprehended and taken
to a physician for examination pursuant to s. 28 of the
Mental Health
Act
, Constable Dukeshire pursued Mr. Camaso as if Mr. Camaso had
committed the most egregious of crimes.

[43]

I
have some difficulty finding in the evidentiary record any basis for this
criticism of Cst. Dukeshire.  In the interests of public safety, the
apprehension of a person under the
Mental Health Act
might be just as
urgent as the apprehension of a criminal.  It was apparent that Mr. Camaso
had earlier done the act of arson and taking him into custody was lawful and
necessary whether or not he had actually committed the criminal offence of
arson.  In finding that the constable treated Mr. Camaso as though he had
committed the most egregious of crimes, the trial judge did not refer to any
evidence from the constable that would support the conclusion.  The constable
pursued Mr. Camaso in the exercise of his duty and for reasons that are
unimpeachable.  Whether he performed his duty negligently is another matter.

[44]

In
finding that Cst. Dukeshire negligently handled the situation prior to the
attack upon him by Mr. Camaso, the judge said:

[281]    Once Constable Dukeshire
had Mr. Camaso in sight, he took a number of steps which led inevitably to
the shooting of Mr. Camaso, with those steps being other than in
accordance with the Policy of the Saanich Police Department and good police
practice, and other than in accordance with the duty of care that was owed by
Constable Dukeshire to Mr. Camaso.  Constable Dukeshire failed to stop to
obtain the advice of Mr. Morris about the state of mind of Mr. Camaso
as soon as he was advised by Mr. Morris that Mr. Camaso was the
subject of the complaint.  Therefore, Constable Dukeshire was not in the
position to receive the advice that Mr. Camasos command of the English
language might make it difficult for him to understand or make himself
understood, that Mr. Camaso was agitated but otherwise alert, and that Mr. Camaso
had shown no signs of being violent.  Because Constable Dukeshire did not take
the time to ascertain the language abilities of Mr. Camaso, his pursuit of
Mr. Camaso virtually ruled out the appropriate stage of communication
which should have been his preferred avenue of dealing with Mr. Camaso.

[45]

In the ensuing paragraphs, the trial judge particularized what he
considered to be additional acts of negligence during the pursuit, which I now
set out in chronological order: (1) Cst. Dukeshire failed to co-ordinate the
apprehension of Mr. Camaso with the other two constables and without
knowing where they were; (2) he failed to engage the assistance of a
supervisor; (3) he pursued Mr. Camaso without waiting for backup; (4)
knowing that Mr. Camaso had a mental disorder, he shouted commands in a
loud voice instead of using calming tones to assure Mr. Camaso that he
was not there to harm him (para. 286); (5) after hearing Mr. Camaso
yell something he could not understand, he failed to obtain translation
assistance or to take account of the possibility that Mr. Camaso might not
understand what he, the constable, was saying; (6) although concerned that Mr. Camaso
might drive away, the constable did not use his radio to request a police
vehicle to block the parking lot exit; (7) the officer drew his firearm too
early without going through a prescribed continuum; (8) when Mr. Camaso
moved toward the ground beside his car, the officer should have re-holstered
his service revolver; (9) the officer advanced on Mr. Camaso with his revolver
drawn instead of maintaining his distance and waiting for the arrival of his
fellow officers; (10) the officer advanced with the intention of handcuffing Mr. Camaso.

[46]

As
to the shooting itself, the judge found the negligence of Cst. Dukeshire to
consist of:  (1) failing to take a quick look to see where the other two
constables and Mr. Morris were located; (2) failing to fire a warning
shot; (3) failing to account for the fact that he substantially outweighed Mr. Camaso
in forming the unreasonable belief that it was necessary to shoot Mr. Camaso
for his own preservation (para. 295); (4) backing up quickly rather than
turning and running; (5) failing to consider seeking cover in a jungle gym in the
nearby school playground; (6) failing to use his baton instead of his revolver
to defend himself.

[47]

The
trial judge reiterated some of these particulars of negligence in the following
paragraphs:

[299]    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.

[300]    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.

[301]    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.

[302]    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 the
Mental
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.

Findings
of negligence

[48]

With respect to the first two grounds of appeal, the appellants say the
trial judge made four errors in finding negligence:

(1)      He misapprehended critical
evidence;

(2)      He ignored expert opinion
evidence as to the standard of care;

(3)      He imposed his
own standard of care with respect to matters about which either no evidence was
adduced or contrary evidence was adduced; and

(4)      He
imposed liability for conduct not particularized by the respondents in their
pleadings or in their submissions, thereby depriving the appellants of the
ability to adduce specific evidence and to make specific submissions with
respect to such conduct.

[49]

In my opinion, there is merit in these submissions to such an extent
that the reasons for judgment cannot be said to support the order under
appeal.

[50]

A finding of negligence is a question of mixed fact and law.  Unless
there is an extricable legal error in the analysis (which would be subject to
review on the standard of correctness), the appellate court must not interfere
in the absence of palpable and overriding error: see
Housen v. Nikolaisen
,
[2002] 2 S.C.R. 235 at paras. 29 and 36.  Of course, if there is palpable
and overriding error in the trial judgment that is capable of affecting the
outcome, the appellate court must intervene.

[51]

Public
safety required the apprehension and restraint of Mr. Camaso.  He posed a
danger to himself and others.  He could not have been left at large in the
community.  At the hearing of this appeal, counsel for the respondents agreed
that Cst. Dukeshire had a duty to apprehend Mr. Camaso under the
Mental
Health Act
, although he had to do so with reasonable care.  He agreed that
the officer also had a duty to protect the community by preventing Mr. Camaso
from doing harm to others.  At para. 287 of his reasons, the trial judge
noted that Cst. Dukeshire was concerned that Mr. Camaso might get into
his vehicle and drive away.  The judge did not say whether he considered this
to be a reasonable concern.  It seems to me he might well have concluded, and
perhaps should have concluded, that in his mental state the operation of a
motor vehicle by Mr. Camaso presented a significant risk to public safety
that needed to be prevented.  The judge might have concluded that preventing Mr. Camaso
from driving away was reasonably Cst. Dukeshires primary concern.

[52]

In
my opinion, the trial judge failed to adequately consider the conduct of the
constable during the pursuit in the above context.

[53]

I
find it necessary to address the specific arguments made by the appellants
concerning the negligence particularized in the reasons for judgment.

[54]

The
first of these is the question of Mr. Camasos ability to understand the
English language, English not being his first language.  It was suggested that
had the constable taken more time to talk to Mr. Morris after Mr. Morris
had talked to Mr. Camaso, the constable would have learned of Mr. Camasos
limited capacity to use English.  However, Mr. Morris testified that Mr. Camaso
appeared to respond when he spoke to him in English.  Mr. Camaso also
appeared to understand simple English when he spoke to Mr. Carlson and the
building manager at the entrance to the apartment building.  Thus it is clear
that nothing was to be gained by Cst. Dukeshire having further discussion with Mr. Morris. 
In addition, several witnesses testified that Mr. Camaso routinely spoke
English.  The failure attributed to Cst. Dukeshire in this respect is contrary
to the evidence and cannot stand as a particular of negligence.

[55]

It
follows that the criticism of the constable for not obtaining the assistance of
a translator lacks cogency.  There was no time to take that step.  In addition,
there was no pleading, expert evidence or argument on this point.  With some
validity, the appellants say that the first time they were aware that this was
a matter in issue was when they read the reasons for judgment.

[56]

The
assertion that the constable ought to have learned from Mr. Morris that Mr. Camaso
was not violent and ought to have approached him as if he were a non-violent
individual cannot stand.  Although the officer did not know Mr. Camaso to
have been physically violent, he was aware that he had committed a dangerous
act.  Although his evidence on this point might have been superfluous to the
obvious, the respondents expert witness, Professor McCauley, agreed that it
was reasonable for Cst. Dukeshire to see Mr. Camaso as a danger to himself
and to the community.

[57]

There
was no opinion evidence that Cst. Dukeshire should have waited for additional
backup.  He knew that all radio communications were being monitored by a
supervisor at the police station.  As the trial judge correctly found, a
supervisor was already on her way to the scene of the incident.  If, as might
have been found by the court, it was necessary to prevent Mr. Camaso from
driving away, it would have been impractical to await additional police
assistance or supervision at the parking lot.  There was no evidence that such
assistance could have been on the scene in time to prevent the attack of the
constable by Mr. Camaso.  In the circumstances, it is difficult to see how
waiting for the assistance suggested could have properly addressed the urgency
of the situation.

[58]

In
addition, there is an inconsistency in the findings made with respect to
supervision by a more senior officer.  The trial judge found that there was no
causal connection between the failure of either Cst. McNeil or Cst. Murphy to
call for a supervisor and the shooting.  I will discuss causation under a
separate heading, but on this particular of negligence it seems to me that it cannot
be said that this failure by the other two constables was not causative but the
same failure by Cst. Dukeshire was causative.

[59]

The
trial judge said that a Saanich Police Department policy required Cst. Dukeshire
to co-ordinate the pursuit of Mr. Camaso with the other two constables. 
There was no such policy in evidence and no expert opinion to like effect.  Nor
was there any policy or opinion to support the assertion that, at some point
not identified in the trial judgment, Cst. Dukeshire should have waited for the
other two officers to catch up to him.  This particular of negligence again
fails to take into account the defence position that it was reasonable for Cst
Dukeshire to act on his own because of the risk to public safety that arose out
of the concern that Mr. Camaso was likely to drive away.

[60]

There
was a conflict in the opinion evidence as to the use of loud commands in
dealing with a person in Mr. Camasos state.  As noted above, this was a
factor in the opinion of Professor McCauley that Cst. Dukeshire created the
situation that made the shooting necessary.  On the other hand, it was the
opinion of Sgt. Horsley that police officers are trained to resort to simple,
loud commands in the circumstances the constable faced.  Although it was of limited
value in determining the standard of care, there was also evidence from Mr. Morris
that he had frequently witnessed police officers dealing with mentally
disturbed people in this manner.  In my opinion, the trial judge could not have
properly resolved this important issue without weighing the conflicting
evidence and explaining why he chose one opinion over the other.  He referred
to neither opinion in making his finding on this important point.

[61]

The
finding of negligence in failing to call for a backup police vehicle to block
the parking lot entrance in my opinion was not significant and could have had
nothing to do with Mr. Camasos decision to attack Cst. Dukeshire.

[62]

The
finding that the constable drew his firearm prematurely, in my opinion, clearly
ignored evidence on the point.  Constable Dukeshire testified that he drew his
weapon because he was concerned that Mr. Camaso might be reaching for a
weapon.  He was not challenged on this assertion in cross examination and it
turns out that his concern was justified.  Professor McCauley opined that the
officer acted reasonably in drawing his firearm when he did.  I agree with the
appellants that the trial judge simply imposed his own standard of care on this
point without an evidentiary basis for so doing.

[63]

The
finding that Cst. Dukeshire was negligent because he failed to return his
firearm to its holster when Mr. Camaso bent toward the ground was contrary
to the opinion of Sgt. Horsley.  The sergeant said that it would have been
wrong for the officer to re-holster his weapon.  How the officer should have
handled his weapon in the circumstances is not a matter of common experience. 
Sergeant Horsley was the only witness in a position to express an opinion about
this matter and, at the very least, the trial judge should not have reached the
conclusion he did without giving reasons for rejecting the opinion of this
witness.

[64]

Without
referring to Cst. Dukeshires evidence, the trial judge concluded that he was
negligent in advancing on Mr. Camaso with his firearm drawn instead of
waiting for the other two officers to arrive.  The judge also stated that it
was the constables intention to put handcuffs on Mr. Camaso.

[65]

With
respect, these findings are not in accord with the constables evidence.  He
testified that he was about 50 feet from Mr. Camaso when the man started
to bend down as though he was being compliant with the firm order the constable
had given to him.  He said that he moved ten feet closer to get a better view. 
He did not testify that he got or intended to get any closer than that.  Nor
did he testify that he intended to handcuff Mr. Camaso before help
arrived.  To the contrary, his evidence was that he was maintaining cover on Mr. Camaso
so that 
once the next officer arrives
...
we would have him
handcuffed and under our control as safely as possible
.

[66]

Sergeant
Horsley testified that police officers in such situations are trained to
maintain their mobility and he saw nothing wrong with Cst. Dukeshire moving
closer as he did.

[67]

It
remains to discuss the acts of negligence the trial judge found to have been
committed by Cst. Dukeshire after Mr. Camaso mounted his attack.

[68]

I
have some difficulty understanding how a failure by Cst. Dukeshire to look
around for the location of others made it unnecessary for the officer to shoot
the man attacking him.  This finding fails to take into account the rapidity
involved in the situation, from an attempt by the officer to control Mr. Camaso
and apprehend him to a violent attack of the officer, as well as the speed of
the attack itself.  In these circumstances, the court would have to consider
whether it would have been wise for Cst. Dukeshire to have taken his eyes off
his attacker for even a split second.  In addition, this was a suggestion of
negligence that emerged only out of questions posed by the court to the
constable.  It was neither in the pleadings of the respondents nor in their
concluding submissions to the court.

[69]

In
finding negligence for the failure to fire a warning shot, the trial judge
failed to consider whether the officer had time to do so, how it would have
effectively deterred Mr. Camaso, the danger it might have posed to people
in the vicinity and the absence of any expert opinion about recommended police
practice as to when, if ever, a police officer might fire a warning shot. 
Indeed, Professor McCauley testified that it was reasonable for Cst. Dukeshire
not to fire a warning shot.

[70]

None
of the findings of the trial judge as to the failure of the constable to run
away, to seek cover behind the jungle gym or elsewhere, or to use his baton
instead of his firearm seem to have a basis in the evidence.  These conclusions
could not be properly reached without consideration of the expert evidence.  In
particular, neither expert testified that it would have been acceptable for the
constable to turn and run as the trial judge suggested he should have done.  As
I understand the opinions of both experts, because of the nature of the attack
upon him by a man wielding a lethal weapon or weapons, Cst. Dukeshire had no
alternative but to shoot for self-preservation.  Sergeant Horsley went further
and said that the constable should have shot sooner than he did.  The above
three findings by the trial judge cannot stand without an explanation for them
in face of the expert evidence.

[71]

This
court has said that in police negligence cases expert evidence is not required to
establish the standard of care: see
Burbank v. R.T.B.
, 2007 BCCA 215. 
However, the present case was concerned with a police officers conduct in
performing his duty by lawfully pursuing on foot and lawfully attempting to
apprehend a person who was a danger to public safety.  It also, of course, was
concerned with the police officers use of his firearm with unfortunate and
tragic results.  These are not matters of ordinary or everyday experience: see
the reasons of Madam Justice Southin in
Roy v. British Columbia
, 2005
BCCA 88 (at para. 3, 251 D.L.R. (4th) 233.  In my opinion, the court
needed expert evidence to properly adjudicate the claims that became the
subject of this appeal.  On those claims, the expert evidence was of primary
importance and central to the submissions of the parties.

[72]

By
excluding the police expert evidence from almost all the analysis leading to
his findings of negligence, the trial judge was not responsive to the case as presented
in evidence and as argued by the parties.  Together with the other evidentiary
errors I have identified, this amounts to palpable and overriding error that requires
appellate intervention.

Causation

[73]

The
causation issue raised in the third ground of appeal relates only to the conduct
of Cst. Dukeshire prior to Mr. Camaso attacking the constable.

[74]

As
noted above, at para. 281 of his reasons, the trial judge concluded the
constable took a number of steps which led inevitably to the shooting of Mr. Camaso.

[75]

With
respect, the analysis at para. 281 is incomplete.  There is no discussion
of the evidentiary link between the negligent conduct and the shooting of Mr. Camaso. 
Further, the judge did not answer the correct question.  Any negligence on the
part of Cst. Dukeshire prior to the attack by Mr. Camaso could have caused
the death
only
if it was proven that such negligence caused Mr. Camaso
to attack the constable with a weapon or weapons.  In my opinion, because the
judge notionally posed the wrong question about causation on this aspect of the
case, he did not provide a reasoned analysis to show a connection between Cst. Dukeshires
conduct during the pursuit and the death of Mr. Camaso.  The causation analysis
was incomplete and therefore defective as a matter of law.

[76]

In
any event, in determining causation with respect to negligence prior to the
attack by Mr. Camaso, the trial judge did not discuss a psychiatric
opinion that had been put into evidence by the respondents.  A consulting
psychiatrist, Dr. Anthony Barale, saw Mr. Camaso in February 2001 at
the psychiatric intensive care unit at Royal Jubilee Hospital in Victoria. 
This was more than three years before the death of Mr. Camaso.

[77]

In
a report dated 5 February 2009, Dr. Barale stated that there was
insufficient evidence to make a diagnosis of a psychosis in 2001 and the only
specific psychiatric diagnosis that could [then] be made was an adjustment
disorder with anxiety.

[78]

Dr. Barale
apparently was asked to review the notes subsequently made by Mr. Camasos
family physician and he also must have been given some sort of summary of Mr. Camasos
conduct on the day of his death.  The doctor thought the family physician over
time had properly prescribed an anti-psychotic drug as well as mood-stabilizing
medication.  Dr. Barale gave the opinion that Mr. Camaso had
developed a psychotic illness and his condition had deteriorated following the
discontinuation of Risperidone, the anti-psychotic.  I presume this latter
point was in response to information from Ms. Camaso that her husband had
been off his medication for a couple of weeks.  The doctor did not testify.

[79]

Dr. Barale
concluded his report with the following opinion as to Mr. Camasos mental
state on the day of his death (my emphasis):

Patients in this state may exhibit delusions
of persecution and these delusions, in turn, generate marked anxiety and
erratic, illogical behavior. As an immigrant with limited English, he would
have been pre-disposed to a psychotic illness and the psychiatric literature
contains numerous studies demonstrating that new immigrants are at a
significantly higher risk of developing psychosis.

It is further my opinion that Mr. Camaso's
behavior on the day he was shot supports a diagnosis of disorganized behavior
which was probably driven by a psychotic process. Patients in such a state are
usually very fearful, and depending on circumstances, will respond either by
fleeing or acting aggressively towards their perceived assailants. The mental
state of such individuals is such that they are not logically processing any
commands or, indeed, their environment in general.
They are responding to
internal, illogical imperatives to defend themselves.

Given Mr. Camaso's
highly variable and abnormal mental status over the preceding years, it is my
opinion that his behavior on the day of his death was driven by a psychotic
state.

[80]

I
consider this to be evidence that had to be weighed and discussed before the
court could determined whether any acts of negligence by Cst. Dukeshire caused Mr. Camaso
to attack the constable.  Because this evidence is not discussed in the trial
judgment, the judgment is not sufficiently responsive to important, vigorous submissions
made several times on behalf of the appellants.  This is a significant error in
law and is sufficient by itself for this court to impugn the finding of
causation.

Appellate remedy

[81]

The appellants contend that this court should make two findings.  First,
the psychiatric evidence rules out any reasonable possibility that any acts of
negligence by Cst. Dukeshire during the pursuit caused Mr. Camaso to
attack the constable and thus caused his death.  Second, the expert reports
establish that the shooting was justified so that the defence under s. 25
of the
Criminal Code
is made out.  The appellants say these conclusions
should lead us to dismiss the action.

[82]

I am not prepared to go as far as the appellants suggest.  As I have
indicated above, I would allow the appeal mainly on the basis that the trial
judge failed in his reasons to consider and discuss important evidence.  I do
not think this court should weigh that evidence, together with all the other
evidence, in the first instance.  The entire body of evidence has to be taken
into account in the context of a trial before this case can be properly
judicially resolved.

Conclusion

[83]

I would allow the appeal, set aside the order of the trial judge and
order a new trial, limited to the claims of negligence against the appellants
that have been the subject of this appeal.  I would also order that the costs
of the first trial be determined by the judge presiding at the second trial.

The Honourable Mr. Justice Low

I agree:

The
Honourable Madam Justice Saunders

I agree:

The Honourable Madam Justice D.
Smith


