IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date:  20110413

Docket:  06 0184

Registry:
Victoria

Between:

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

Plaintiffs

And

Derek Charles Egan, The Corporation of the District
of Saanich,
Kristopher Dukeshire, Tara McNeil, Kathleen Murphy,
John Doe 1, 2 and 3, Jane Doe 1, 2 and 3, Derek Morris and
Her Majesty the Queen in the Right of the Province of British Columbia

Defendants

Before:  The Honourable Mr. Justice
Burnyeat

Reasons for Judgment
(from Trial)

TABLE
OF CONTENTS

CLAIMS OF THE PLAINTIFFS…………………………………………………………………………………… 5

DEFENCES TO THE CLAIMS OF THE PLAINTIFFS……………………………………………………. 7

BACKGROUND………………………………………………………………………………………………………… 8

EVENTS OF JULY 11, 2004……………………………………………………………………………………… 10

EVENTS LEADING TO THE DEATH OF MR. CAMASO……………………………………………… 14

(A)  Actions
of Mr. Morris………………………………………………………………………………….. 14

(B)  Actions
of Constable Dukeshire…………………………………………………………………… 21

(C)  Actions
of Constable McNeil……………………………………………………………………….. 28

(D)  Actions
of Constable Murphy………………………………………………………………………. 30

THE AFTERMATH FOR MS. CAMASO…………………………………………………………………….. 32

TESTIMONY OF OTHER WITNESSES REGARDING EVENTS OF JULY 11,
2004……….. 34

ARRIVAL OF OTHER OFFICERS AT THE SCENE OF THE SHOOTING……………………… 35

(a)  Constable
Austin……………………………………………………………………………………….. 35

(b)  Acting
Sergeant Melville…………………………………………………………………………….. 36

(c)  Constable
Eassie………………………………………………………………………………………. 36

(d)  Acting
Corporal Olsen………………………………………………………………………………… 36

(e)  Sergeant
Irwin…………………………………………………………………………………………… 39

SAANICH POLICE DEPARTMENT policies in effect………………………………………….. 39

THE AFTERMATH IN RELATION TO GENERAL PRINCIPLES…………………………………… 44

(A)  Separation
of the Three Constables…………………………………………………………….. 45

(B)  Preparation
of Detailed Notes……………………………………………………………………… 45

(C)  Nature
of the Investigation………………………………………………………………………….. 46

(D)  Supervisors
Taking Control………………………………………………………………………… 46

(E)  Application
of Handcuffs…………………………………………………………………………….. 48

(F)  Separation
of Officers………………………………………………………………………………… 49

THE JULY 12, 2004 PRESS RELEASE……………………………………………………………………… 49

TIMES COLONIST ARTICLES………………………………………………………………………………….. 52

ACTIONS OF THE THREE CONSTABLES AFTER THE DEATH OF
MR. CAMASO…….. 55

(a)  Constable
Murphy……………………………………………………………………………………… 56

(b)  Constable
McNeil………………………………………………………………………………………. 59

(c)  Constable
Dukeshire…………………………………………………………………………………. 61

USE OF FORCE REPORT……………………………………………………………………………………….. 65

SUBSEQUENT REVIEWS OF WHAT OCCURRED ON JULY 11, 2004………………………… 67

CLAIMS ADVANCED BY THE PLAINTIFFS………………………………………………………………. 71

(A)  Claims
against Mr. Morris…………………………………………………………………………… 71

(B)  Claims
against Constables McNeil and Murphy…………………………………………….. 75

(C)  Claims
against Chief Egan…………………………………………………………………………. 76

(D)  Claims
for Negligent Investigation……………………………………………………………….. 80

(E)  Claims
for Breach of Public Duty/Misfeasance in Public Office………………………… 90

(F)  Claims
against Constable Dukeshire……………………………………………………………. 99

DAMAGES AVAILABLE TO THE PLAINTIFFS………………………………………………………… 111

(a)  General
Damages……………………………………………………………………………………. 111

(b)  Special
Damages…………………………………………………………………………………….. 111

(c)  Aggravated
Damages or Punitive Damages………………………………………………… 112

(d)  Loss
of Services……………………………………………………………………………………… 112

(e)  Loss
of Financial Support…………………………………………………………………………. 115

(g)  Loss
of Care and Guidance………………………………………………………………………. 116

(h)  Loss
of Inheritance………………………………………………………………………………….. 117

SUMMARY……………………………………………………………………………………………………………. 117

[1]
Pursuant to the provisions of the Family Compensation Act,
R.S.B.C. 1998, c. 126, the Plaintiffs claim for general, special and
aggravated or punitive damages arising out of the circumstances surrounding the
death of Majencio Camaso on Sunday, July 11, 2004.  At the time of his
death, Mr. Camaso was 33 years old.  The Plaintiff, Maria Teresa
Camaso, was his wife.  The Plaintiff, Christine Kate Camaso, was his daughter.
Christine was almost 3 at the time of the death of her father.

[2]
The Defendant, Derek Charles Egan (“Chief Egan”) was employed as Chief
of Police by the Defendant, The Corporation of the District of Saanich (“Saanich”).
Saanich was at all material times responsible for the provision of police
services and was the employer of police officers through the Saanich Police
Board.  The Defendant, Kristopher Dukeshire (“Constable Dukeshire”), the
Defendant, Tara McNeil (“Constable McNeil”) and the Defendant, Kathleen Murphy
(“Constable Murphy”) were all employed as police officers by the Saanich Police
Board.

[3]
On July 11, 2004, Constable Dukeshire, Constable McNeil and
Constable Murphy were probationary officers.  Prior to his employment with
Saanich, Constable Dukeshire had three years of police experience with the
Winnipeg Police Service, as well as experience in the Canadian Armed Forces.
Constable McNeil was in the 14^th month of her 18-month probation
period.  Constable Murphy was in the 11^th month of her 18-month
probation period.

[4]
It is alleged by the Plaintiffs that the Saanich was all material times
the employer of the Defendants, Chief Egan, Constable Dukeshire, Constable
McNeil and Constable Murphy, so that Saanich is vicariously liable for any torts
committed by them and for any of their actions which caused the damages alleged
by the Plaintiffs.  In this regard, the Plaintiffs specifically plead and rely
on ss. 20(1)(a), 20(1)(b) and 21(3)(a) of the Police Act, R.S.B.C.
1996, c. 367 (“Police Act”).

[5]
The Defendant, Derek Morris (“Mr. Morris”) is an emergency services
attendant employed by the Emergency Health Services Commission under the Health
Emergency Act, R.S.B.C. 1996, c. 182.  It is alleged by the Plaintiffs
that Mr. Morris is an agent and employee of the Defendant, Her Majesty the
Queen in Right of the Province of British Columbia (“Crown”).  The Crown is
named pursuant to the Crown Proceeding Act, R.S.B.C. 1996, c. 89,
as the employer of emergency health care workers.  It is alleged by the
Plaintiffs that the Crown is vicariously liable for any torts committed by Mr. Morris
and for any actions which caused the damages alleged by the Plaintiffs.  In
this regard, the Plaintiffs specifically plead and rely on s. 3 of the Health
Emergency Act and s. 2 of the Crown Proceedings Act.

CLAIMS OF THE PLAINTIFFS

[6]
Mr. Camaso died as a result of gunshot wounds from a service revolver
fired by Constable Dukeshire.  Against Constable Dukeshire, it is alleged that
he committed assault and battery upon Mr. Camaso thereby causing his
death.  The Plaintiffs also claim that the injuries and death of Mr. Camaso
were caused or contributed to by the gross negligence of Constable Dukeshire.
The Plaintiffs claim that Saanich is responsible at law for the acts and
conduct of Constable Dukeshire.

[7]
The Plaintiffs claim that the injuries and death of Mr. Camaso were
also caused or contributed to by the negligence of Constable McNeil and
Constable Murphy and by the gross negligence of Chief Egan.  The Plaintiffs
claim that Saanich is responsible at law for the acts and conduct of Constable
McNeil, Constable Murphy and Chief Egan.

[8]
The Plaintiffs claim that the injuries and death of Mr. Camaso were
caused by or contributed to by the gross negligence of Mr. Morris.  The
Plaintiffs claim that the Crown is responsible at law for the acts and conduct
of Mr. Morris.

[9]
As a result of the alleged assault and battery of and/or the negligence
and/or the gross negligence of Chief Egan, Constable Dukeshire, Constable
McNeil, Constable Murphy, and Mr. Morris, the Plaintiffs claim that they have
suffered and will continue to suffer physically, psychologically and
emotionally, and will continue to suffer the loss of love and affection,
guidance, companionship and financial support and financial benefit that would
otherwise have been available from Mr. Camaso.  Additionally, the
Plaintiffs claim for funeral expenses, loss of employment income, legal fees in
respect of proceedings other than this Action, and child care expenses, and
costs.

[10]
Against Chief Egan, the Plaintiffs also claim that, by operation of law
and/or police operating procedure and/or standing orders, Chief Egan had certain
obligations and duties, both operational and public duties.  The Plaintiffs claim
that Chief Egan deliberately breached the duties owed by him by engaging in a
course of conduct calculated to “undermine and/or frustrate” the investigation
into the death of Mr. Camaso, thereby wrongfully protecting the interests
of Constables Dukeshire, McNeil and Murphy and the interests of Saanich.  The
Plaintiffs claim that Chief Egan is therefore liable for abuse of and misfeasance
in public office or, in the alternative, that Chief Egan acted recklessly and
without good faith to a point that constitutes an abuse of power.

[11]
In the alternative, the Plaintiffs say that Chief Egan and Saanich owed
a duty of care to the Plaintiffs to ensure that a thorough and complete
investigation into the death of Mr. Camaso and that Chief Egan and Saanich
are liable to the Plaintiffs for the negligent investigation into the death of Mr. Camaso.
The Plaintiffs further claim that Chief Egan owed a duty of care to the
Plaintiffs to ensure that Constables Dukeshire, McNeil, and Murphy would
conduct themselves in a fashion that ensured “the integrity of the criminal
investigation” into the shooting death of Mr. Camaso, that he had an
obligation to the Plaintiffs to institute training, programs, policies and/or
order which would ensure that police officers in his charge complied with their
legal obligations to cooperate with the investigating team, that he had an
obligation to ensure that police officers in his charge complied with their
training and the laws in force in British Columbia so as to ensure the
integrity of a criminal investigation, and that, in failing to mandate a course
of conduct for the investigation team that ensured the integrity of the
criminal investigation into the death of Mr. Camaso, Chief Egan breached
the duties of care owed to the Plaintiffs as he failed to ensure that the
investigation team and Constables Dukeshire, McNeil, and Murphy complied with
their training.  The Plaintiffs claim that Saanich is vicariously liable for
this conduct of Chief Egan.

[12]
As against Constables Dukeshire, McNeil, and Murphy, the Plaintiffs claim
that they breached their public obligations and duties to cooperate fully in
the investigation of the death of Mr. Camaso and, through their own wilful
misconduct, they breached these public obligations and duties.  The Plaintiffs
claim that Saanich is vicariously liable for this conduct of Constables
Dukeshire, McNeil and Murphy.

DEFENCES TO THE CLAIMS OF THE PLAINTIFFS

[13]
In their Statement of Defence, Chief Egan, Saanich, Constables
Dukeshire, McNeil, and Murphy deny that they or any of them were guilty of the
negligence alleged, that Constable Dukeshire acted wrongly in any manner which
caused or contributed to the death of Mr. Camaso, that Constable Dukeshire
and Chief Egan committed any negligence (gross or otherwise) which caused or
contributed to the death of Mr. Camaso, that Chief Egan was guilty of any
wrongful conduct, breach of public duty or misfeasance in public office, that
none of Chief Egan, Saanich, Constables Dukeshire, McNeil, and Murphy owed any
duty to the Plaintiffs so that none of the allegations give rise to the causes
of action alleged by the Plaintiffs.

[14]
In further answer to the allegations of fact contained in the Amended
Statement of Claim, Chief Egan, Saanich, Constables Dukeshire, McNeil, and
Murphy plead and rely upon the provisions of s. 25 of the Criminal Code
of Canada, R.S.C. 1985, c. C‑46.

[15]
Chief Egan and Saanich further deny that any duty of care was owed to
the Plaintiffs with respect to carrying out an investigation into the death of Mr. Camaso.
In the alternative, Chief Egan and Saanich say that, if any such duty was owed
to the Plaintiffs with respect to the carrying out of an investigation, such
investigation was carried out in accordance with the then-prevailing standard
of care.

[16]
In their Statement of Defence, the Crown and Mr. Morris state that Mr. Morris
was acting within the scope and in the course of his employment with the
Emergency Health Services Commission and deny that any cause of action is
maintainable against Mr. Morris in his personal capacity.  In this regard,
the Crown and Mr. Morris rely on the provisions of ss. 4 and 10 of
the Health Emergency Act, R.S.B.C. 1996, c. 182.  In further answer
to the whole of the Amended Statement of Claim, the Crown and Mr. Morris state
that the attendance of and the offering, provision and level of the emergency
health services were all done in accordance with the prescribed policies and
procedures for providing emergency services so that no alleged act or omission
on the part of Mr. Morris constitute an actionable wrongdoing maintainable
at law.  In the alternative, if Mr. Morris did do any act or thing alleged
or particularized in the Amended Statement of Claim, none of such alleged acts
or omissions constitute negligence (gross or otherwise) on his part and none of
the alleged acts or things caused or contributed to the cause of any injury,
loss or damage sustained.

BACKGROUND

[17]
Mr. Camaso was born in the Philippines.  Mr. Camaso came to Canada
on February 16, 2000, having arrived as a hand on a freighter.  All of
those who knew him described Mr. Camaso as a shy, quiet, hard-working
family man.  Mr. Camaso worked at a yacht company and, in 2002, began
taking “English as a Second Language” courses at Camosun College to improve his
employment prospects.  At her Discovery, Ms. Camaso stated that Mr. Camaso
would have taken until January 2006 to be proficient enough in English to
start an apprenticeship program and that, once Mr. Camaso had completed
his apprenticeship program, he would have earned approximately $20.00 to $22.00
per hour.  The transcript from Camosun College indicates that, although Mr. Camaso
was enrolled, he did not complete the courses that he took in 2000 through
2004.

[18]
The earnings of Mr. Camaso during 2002 and 2003 were at $14.50 per
hour, and during 2004 were at $15.00 per hour.  I find that his total
income for the years shown was as follows:  $25,304 (2000), $24,922 (2001),
$31,147 (2002), $19,624 (2003), $17,559 (2004).

[19]
In late 2001, Mr. Camaso fell from a boat he was working on and
sustained a head injury.  He resumed work after recovering.  In May 2004, Mr. Camaso
sustained soft-tissue injuries in a motor vehicle accident.  After this
accident, Mr. Camaso was prescribed Tylenol 3.  Mr. Camaso was
scheduled to return to work on July 12, 2004, the day after he died.

[20]
In 2001, Mr. Camaso was hospitalized.  In a February 9, 2001
consultation report, Dr. A. Barale stated:

Mr. Camaso was brought to
the Emergency Department by the police after he had called them in the early
hours of the morning. It emerged that Mr. Camaso had become really quite
panic stricken, very afraid and suspicious of his wife’s behaviour. For reasons
he could not clearly explain, he thought the police may be able to help him
with this dilemma. As it turns out, he became even more agitated and frightened
by the police who had to use force to restrain him.

IMPRESSION:

It is likely that [Mr. Camaso]
has gone through a period of acute stress as the combination of various
stressful situations including the significant injury, which saw him off work
for a few weeks, the excessive use of Tylenol #3 and the probable experiencing
of anxiety related to opiate withdrawal.  I do not believe there is an
underlying psychotic process but that this is a culture-bound phenomenon, as
corroborated by both his wife and the translator from the Philippines.

By the time of his discharge,
he was really quite lucid, calm and fully insightful.

SUGGESTIONS:

1.      Avoidance
of all opiates for pain relief and reliance, if possible, instead on
nonsteroidal anti-inflammatories. To this end, a prescription of Naprosyn 250
to 500 mg b.i.d. was supplied.

2.      I
supplied him with a limited amount of Clonazepam for sleep (10 nights).

[21]
Mr. Camaso was prescribed Risperdal in 2001.  Risperdal is an
antipsychotic used to treat schizophrenia, schizoaffective disorder, and the
mixed and manic states associated with bipolar disorder.  Mr. Camaso complained
that, when he took his medication including Risperdal, it caused him to vomit so
he took something for his upset stomach and stopped taking Risperdal.

[22]
Approximately two weeks prior to his death, Ms. Camaso found out
that Mr. Camaso had stopped taking the Risperdal that had been prescribed
for him.  A bottle of 0.5 mg tablets of Risperdal was prescribed for Mr. Camaso
on May 12, 2004.  After his death, a bottle marked “180 tablets” was found
containing 179 tablets.  During the two week period leading up to his death, Ms. Camaso
had this description of the behaviour of her husband:  “just talks nonsense”
and sometimes “did not make sense”.

EVENTS OF JULY 11, 2004

[23]
Mr. and Ms. Camaso and their daughter lived in a two-bedroom
rented apartment in Saanich. Their building was part of a complex of buildings.
I record Ms. Camaso as testifying at Trial that Mr. Camaso did
not sleep the previous evening and that he was up “walking around” their
apartment.  Ms. Camaso testified that she pretended to go to sleep so that
Mr. Camaso wouldn’t continue talking and so that her daughter could get
some sleep.  Ms. Camaso testified that, at about 2:00 a.m., Mr. Camaso
had stated 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.

[24]
Ms. Camaso testified that she got up to make her daughter breakfast.
She testified that Mr. Camaso had found a piece of tape on the wall with a
piece of red balloon on it which he thought was some kind of “high-tech
watching device” and that “they” were using this to watch him.  Mr. Camaso
also stated that he had a bad experience with the police when he was taken to
the hospital in 2001 as he had to be restrained and it took three or four
police officers to hold him down.  Ms. Camaso stated that Mr. Camaso
put the tape back onto the wall and stated:  “Okay, everybody can watch me now.”
She stated that he said that she was not to touch the tape.

[25]
While getting her daughter dressed, Ms. Camaso heard glass breaking
and saw that Mr. Camaso was carrying a gallon of gasoline and a lighter.
At that point, Mr. Camaso asked her to take her daughter out of the
apartment, saying:  “Good thing, better get out of here because you know
I don’t want, you know I don’t want to hurt you.”

[26]
A 911 call was made from the Camaso apartment at approximately 8:53 a.m.
but no one was on the line.  When the number was phoned and contact made, Ms. Camaso
stated:  “hi, my husband is losing control of himself (indecipherable) …”.
When asked whether she needed police, she answered “police”. When asked
whether it involved “medical issues”, Ms. Camaso answered “yeah”.  The
call was then terminated.  An attempt was made to call back to the Camaso home
but there was no answer.  The ambulance service and the police were then
dispatched.

[27]
Regarding the ambulance attendants who went to the Camaso apartment and
regarding the advice that was given to them, I make the following findings
of fact:  (a) Mr. Morris, his partner Dan Carlson, and a student
trainee, Dave Robertson Jr. were on duty that day; (b) at approximately 9:01
a.m., they were dispatched by the Ambulance Service to the apartment address of
the Camasos and, in accordance with Ambulance Service Policy in place, were
advised by Ambulance Dispatch to wait for the police; (c) Ambulance Dispatch
advised the three attendants:  “It was an abandoned 911, the woman said her
husband was having problems and hung up.”;  “We got through to her, she says
her husband’s off his mental medication and he’s on a rampage throwing things
around and breaking all of the computers”; and (d) the three ambulance
attendants arrived at the scene and, in accordance with Ambulance Service
Policy, waited for the police to arrive.

[28]
Constables Dukeshire, McNeil and Murphy were dispatched to the Camaso
apartment.  Regarding their attendance at the Camaso apartment and the advice
that was given to them, I make the following findings of fact:  (a) Police
Dispatch contacted Constable Dukeshire and advised as follows, “got an assist
general public at [gives the address].  Female caller reporting that her
husband is out of control and is, and it is a medical problem. We put it
through to the ambulance who is advised that the call was abandoned.  Ah, upon call
back the female and male both answered the phone and it appeared as if the
female couldn’t talk.  We don’t know what the problem is.”; (b) Constable
Dukeshire was the “assigned officer” to the 911 call that had been received; (c) when
the call was received by Constable Dukeshire, he was outside his patrol area
having coffee at his parent’s home; (d) Constable Dukeshire indicated that
he would be responding from his location; (e) at the same time, Constable Murphy
stated that she would respond from her location; (f) in separate police
vehicles, Constables Dukeshire, McNeil and Murphy arrived at a parking lot
close to the apartment complex containing the building where the Camasos resided;
(g) Constables Dukeshire, McNeil, and Murphy were advised by Police Dispatch:
“apparently EHS [ambulance service] got through [by telephone] … and, ah, it
sounds as though the husband is off his meds for something, but he’s throwing
things around, they are requesting our attendance”; (h) Constables
Dukeshire, McNeil, and Murphy were advised that the “history is negative on
PRIME [Police Records Information Management Environment]. We’re just checking
the old RMS [old record system]”; (i) Police Dispatch advised Constable Dukeshire,
McNeil, and Murphy:  “there may be depending on, we’re assuming it’s the same
male that may be involved from the 2001 entry we have, um, where the male was,
um, on the file as deranged, felt people were out to hurt him and he was held
at RJH [Royal Jubilee Hospital] for observation.”; and (j) each of
Constables Dukeshire, McNeil, and Murphy acknowledged receipt of this
information.

[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.

[30]
Ms. Camaso had taken her daughter and had gone to a nearby home of
a stranger.  When there, she made a further 911 call.  I find that the
following information was then relayed to Constable McNeil:  “We’ve just
getting a report from the scene now, um, who’s next door and she thinks that
the male left in a vehicle, I’m just running the plate, it’s a green vehicle.”
Constable McNeil was also given the address where Ms. Camaso was located.
Upon receiving that advice, Constable McNeil stated to Police Dispatch:  “10-4
we’re gonna head there now, the residence appears clear, the fire’s out, the
linoleum in the kitchen has been burnt and the suite needs ventilating.”

[31]
Despite the Policy of the Saanich Police Department that an officer
would stay at a scene until the Saanich Fire Department arrived, all three
Constables left the scene to go back to their vehicles so that they could then
go to where Ms. Camaso was located.  If Saanich Police Department had been
followed, it would not have been necessary for the three ambulance attendants
to stay at the location until the Saanich Fire Department arrived.

[32]
After the three Constables left to go to their vehicles, Mr. Camaso
approached the entrance to the building where the Camaso suite was located.  The
manager for the complex confirmed to the ambulance attendants that Mr. Camaso
was the occupant of the suite.  Mr. Carlson approached Mr. Camaso and
asked whether he was from the apartment.  Mr. Camaso answered “yes”.  Mr. Carlson
stated at Trial:  “I told him he could not enter the building as there was a
fire in his apartment and there was a strong smell of gas in the air”.  Mr. Carlson
stated that Mr. Camaso “stared right at me” and kept walking towards the
door.  Mr. Carlson asked Mr. Camaso several times whether he was hurt
and did he need help and Mr. Camaso responded each time:  “no I’m fine”.  Mr. Camaso
was advised that the fire department had been called.  When Mr. Camaso
continued towards the door of the building, the manager of the apartment told Mr. Camaso
that he would not be allowed back into the building.

[33]
In a statement given to the police that day, Mr. Carlson described Mr. Camaso
as follows:  “very nervous and on edge”.  At Trial, Mr. Morris was asked
about the behaviour of Mr. Camaso and testified:  “he appeared angry,
agitated.  He appeared like he was frustrated by the manager blocking him and
it looked like he was – like it could escalate into a physical confrontation.
There was a sense of it wasn’t right.”  At his Discovery, Mr. Morris
confirmed that Mr. Camaso “reluctantly” complied with the instructions of
the manager of the apartment and that Mr. Camaso “was not violent”.

[34]
While the conversations between Mr. Carlson and Mr. Camaso
were taking place, Mr. Morris moved away to use his portable radio to ask
the Constables to return.  When the Ambulance Service phoned the Saanich Police
Department, they advised:  “They need you guys back there, lights and sirens,
your violent guy has returned.”  I find that there is no evidence to
suggest that any of the three Constables were advised that the word “violent” had
been used when referring to Mr. Camaso.

[35]
Constables Dukeshire, McNeil and Murphy ran from where their vehicles
were parked back to the apartment building after being advised by Police
Dispatch that:  “Apparently the subject of the complaint has returned to his
address, EHS [Emergency Health Service] is requesting us right now.”

EVENTS LEADING TO THE DEATH OF MR. CAMASO

(A)     Actions of Mr. Morris

[36]
While Mr. Morris was communicating on his portable radio, Mr. Camaso
started to walk away from the entrance to the apartment building.  Mr. Morris
began to follow Mr. Camaso.  It was the evidence of Mr. Carlson and Mr. Morris
that, when Mr. Camaso reached the corner of the building, he started to
run.  Mr. Morris advised Police Dispatch:  “oh okay I guess you guys
are on scene, that fella’s running northbound now apparently.”

[37]
At his Discovery, Mr. Morris was asked the following questions and
gave the following answers:

Q         Okay.  So maybe I’ll ask you that question
again.  In a situation where there’s an abandoned 911 and the police have been
called and you’ve been instructed from dispatch to wait for the police, are
there any situations where you would follow a patient?

A          No.

Q         Are there any situations in that particular
case where there’s a 911 abandoned call where you would intervene before the
police arrive?

A          No.

Q         So you’d been told that it was a psychiatric
mental health patient?

A          Yes.

Q         And you’d been asked to wait?

A          Yes.

Q         I’m asking you, do you agree that as a
paramedic you should not pursue patients?

A          I agree I should
not pursue patients.

[38]
At his Discovery, the B.C. Ambulance Service Operations Policies were
referred to Mr. Morris, including the following policy:  “Paramedics will
follow the dispatch’s instructions until otherwise instructed by the attending
police officers.”  Mr. Morris confirmed that Ambulance Dispatch always
give the instructions to stay a safe distance away from the scene, to listen to
and follow instructions of the police, to remain in contact with Ambulance Dispatch
for further instructions, to always wait for clearance from the police before
attempting to approach people in need of medical attention, and to take no unnecessary
risks to your own health and safety.  Mr. Morris was asked whether “are
there any situations where you would intervene before the police arrive?”, and
he answered:  “I can’t think of any.”

[39]
At Trial, Mr. Morris stated that he had a quick conversation with Mr. Carlson
saying:  “I’m going to go down to the corner [of the building] and just spot
him for the police …”  “I know the area I’m just to go down to the corner and
see where he’s going.”  Mr. Morris was asked why he was following Mr. Camaso
and he stated:  “Just to be able to point him out to the police.  If he had to
be taken into custody before we could assess him, then that’s what I needed
to do.”  Mr. Morris testified that he “jogged slowly” down to the corner of
the building and saw Mr. Camaso was running down a path that was beside a
large hedge that paralleled a gully.  Mr. Camaso was running towards an
opening in the hedge where there was a small footbridge over the gully.

[40]
At my request, measurements were taken of the various distances around the
apartment building and the scene of the death of Mr. Camaso.  From the
entrance to the building where Mr. Camaso and the ambulance attendants had
been standing at the corner of the building was approximately 214 feet.  From
the corner of the building to the footbridge was approximately 300 feet.

[41]
Mr. Morris testified that he saw Mr. Camaso when he was
approximately “half way to the opening in the hedge”.  Mr. Morris stated
that Mr. Camaso continued to run and didn’t look back.  Mr. Morris
followed running.  At the pace Mr. Camaso had been running, Mr. Morris
assumed that Mr. Camaso would not be visible when he arrived at the
opening of the hedge but, “as I came around the corner, I saw him
standing there”.  Mr. Morris stated that he immediately stopped.  Mr. Morris
estimated that they were about 35 feet apart when he began to speak to Mr. Camaso.

[42]
Mr. Morris testified that he said to Mr. Camaso:  “Hi, my name’s
Derrick, I’m with the Ambulance Service”, and that Mr. Camaso said
something to the effect:  “I don’t want to talk to you.”  Mr. Morris
indicated that he turned and showed Mr. Camaso his shoulder crest and
said, “I’m a paramedic”, “I’m with the ambulance service, I’m not a policeman”,
“I just want to make sure you’re okay”, “I would like to know, were you in the
fire?  Did you breathe in any smoke?  Are you hurt?”

[43]
At Trial, Mr. Morris confirmed that he was using a “calming,
reassuring voice” when he was talking to Mr. Camaso as:  “It’s the way I’m
trained and my experience that you get the best reaction from patients that are
either unstable or mentally unstable.”  He confirmed that such individuals
might be frightened if there was “Yelling at someone who was emotionally
disturbed or mentally unstable”.  At his Discovery, Mr. Morris was asked
the following question and gave the following answer:

Q         So why did you
tell him that you weren’t a police officer?

A          Because I didn’t
want him to think that I was a threat to him.  And it’s a common thing to
do when approaching a street person or a person who doesn’t know you or is not
familiar with you, or someone that through – whether they’ve suddenly gained
consciousness or suddenly noticed you, that you’ve explained them that – all
they see is a uniform, so I always make sure I identify them – show
them my badge.  It’s got a big crest on it.  It’s got “Ambulance” clearly on
it.

[44]
Mr. Morris stated at Trial:  “While I was talking to him,
I noticed that he was starting to make eye contact with me, and he seemed
to be starting to relax.  Initially he had his shoulders up very high and very
tense, and as I was speaking to him, he started to relax and his posture
started to change.”  “I felt like I was getting a connection with him, and
if you can get a connection with a patient and establish a trust with them,
they will frequently come with you to the hospital willingly.”

[45]
Mr. Morris testified that he started walking very slowly towards Mr. Camaso.
Mr. Morris stated that he had his hands out to his sides, he asked Mr. Camaso
his name twice but that he did not understand what Mr. Camaso said, so he
said:  “Sir, just relax.  I’m here to help you.”  “Somebody called the
ambulance because they were worried about you.”  “I’d like to check your pulse
to make sure you’re okay.”  At a point when Mr. Morris was approximately
three-quarters of the way over the footbridge, Mr. Morris was hoping to
step forward and take the hand of Mr. Camaso in order to take his pulse.  At
that point, Mr. Morris stated that Mr. Camaso said “I don’t want
to talk to you anymore” and that he “suddenly tensed up and turned and just ran
off very quickly”.  “It was like he suddenly was startled.  He just suddenly
tensed and turned and ran.”  Mr. Morris testified that he stated something
like:  “Sir, come back.  It’s okay.”

[46]
Mr. Morris confirmed that he still considered Mr. Camaso a
patient at this point, although he “still hadn’t got a clear idea of what his
primary complaint – generally, he was going to be a psychiatric patient, other
than ruling everything else out either en route to the hospital or an
assessment at the scene”.

[47]
As Mr. Camaso ran, Mr. Morris started losing sight of him
because “my sightline was obscured by the trees” in the hedge.  Mr. Morris
indicated that he then jogged or walked two or three steps forward in order to
keep Mr. Camaso in sight.  “I wanted to be able to point him out to the
police when they arrived.”  Mr. Morris then began to run after Mr. Camaso.
There was no real explanation given by Mr. Morris why he found it
necessary to run after Mr. Camaso in order to keep Mr. Camaso in his
sight.

[48]
Mr. Morris heard a loud voice behind him yell:  “Stop, Police,
stop.”  Mr. Morris stated that he stopped and looked over his shoulder.  Mr. Morris
stated that he saw Constable Dukeshire, he pointed in the direction of Mr. Camaso
was going, and he said to Constable Dukeshire “that’s your guy”.  Mr. Morris
states that Constable Dukeshire began running towards him and caught up to him
fairly quickly.  Mr. Morris gave no explanation why he continued to run
after Mr. Camaso after he indicated to Constable Dukeshire that the person
running ahead was Mr. Camaso.

[49]
When Constable Dukeshire caught up him, Mr. Morris asked “where’s
your partners”.  I record Mr. Morris as stating that he does not
remember exactly what Constable Dukeshire said, but that it was something to
the effect that they were in “on their way” or “not here yet”.  Mr. Morris
testified that he asked Constable Dukeshire “do you want me to come with you?”
and that Constable Dukeshire stated “sure”.

[50]
I find that Constable Dukeshire did not request that Mr. Morris
accompany him.  In this regard, I prefer the testimony of Mr. Morris
given at his Discovery when he was asked the following questions and gave the
following answers:

Q         Is it your role to assist the police in
apprehending patients?

A          When a policeman requests that we assist, we
will.

Q         Had Cst. Dukeshire requested that you assist
him?

A          No.

Q         Had anybody requested that you assist the
police?

A          No.

[51]
Mr. Morris stated that he and Constable Dukeshire were then both running
after Mr. Camaso.  Mr. Morris stated when he turned to his left,
realized that Constable Dukeshire was no longer running beside him so he “immediately
slowed down” and that, after about four to six feet, Constable Dukeshire passed
him.  It was at this time that Mr. Morris saw Mr. Camaso ducking
behind a vehicle.  In this regard, Mr. Morris stated at Trial:

Mr. Camaso came out from behind the car and he had
something in his hands, and he raised it up.

And what crossed my mind was the shape and how dark it was.
Initially to me, more the way he carried it, was that looked like a shotgun.

His right hand was down by his hip, by his belt, and his left
hand was about shoulder height, grasping something in between the two.

I don’t remember to this day if
I thought “is that a gun?” and said “that’s a gun”, or if I thought “that’s
a gun” and asked “is that a gun?” to Constable Dukeshire.  I know that
they were kind of simultaneous in my mind and immediately headed for the
nearest place that I could find for – to get out of the way.

[52]
The “nearest place” was across the street and to the corner of a church
which I find to be approximately 120 feet away from where Mr. Morris
had decided to “get out of the way”.  At Trial, Mr. Morris stated that,
once he reached the church, he had a clear line of sight to Mr. Camaso and
he had a clear line of sight to Constable Dukeshire, but that the intervening
area between the two was blocked by trees.

[53]
Mr. Morris testified that he knew that the object in Mr. Camaso’s
hand was not a gun.  However, Mr. Morris stated:  “He was almost pointing
it in a fashion like you might point a rifle.”  At this time, Mr. Camaso
was standing on the passenger side of the vehicle.  Mr. Morris stated that
he saw Constable Dukeshire pointing his firearm at Mr. Camaso and heard
Constable Dukeshire state very clearly:  “put it down, get down on the ground”.
He indicated that Constable Dukeshire said these words at least two or three
times.

[54]
When he looked back at Mr. Camaso, Mr. Morris did not see
anything in his hands.  He described Mr. Camaso as “hopping from foot to
foot”.  He heard Constable Dukeshire say “put your hands up”, “get down on the
ground”.  He described Mr. Camaso as having his hands out slightly above
his shoulders and that:  “Then he suddenly started to bend at the waist and
started to put his hands down towards the ground.”  “I remember thinking, ‘oh,
thank God, he’s going to comply’.”; “He was almost in a position to the point
of where he would have to put his hands down on the ground to get down on the
ground and he popped back up again and turned around to his right and ran
behind the vehicle again.”  While he did not remember exactly what Constable
Dukeshire then said, Mr. Morris stated that he thought it was to the
effect of “Come out.  Come out from behind the vehicle”.

[55]
Mr. Morris stated that:  “Mr. Camaso came out from behind the
vehicle and had something in his hands again and in my mind it was something
different because he had a different shape”.  “It had a bend at the top, so
I was thinking a tire iron or a wrecking bar – something – a pry bar.”  He
heard Constable Dukeshire state:  “Put it down.  Put it down.”  He stated that Mr. Camaso
advanced to the front of the vehicle and “took what he had in his hands” and “holding
his hands up as if he’s clasping a baseball bat, ready to swing the baseball
bat”, “over his left shoulder”.  Mr. Morris then quoted Mr. Camaso as
yelling “So you kill me now”, “You kill me now”, “You kill me now.”

[56]
Mr. Morris stated that Constable Dukeshire had moved slightly
forward so that it was necessary for him to come out onto the driveway leading
from the church building so that he could see Constable Dukeshire.  He
testified that Constable Dukeshire had his gun pointing in the direction of Mr. Camaso,
and that he was yelling at the top of his lungs, “Put it down.  Put it down.”,
and that he said these words between five and ten times.  Mr. Morris then described
the scene as follows:

When Mr. Camaso started running at Constable Dukeshire,
Constable Dukeshire started running backwards, moving backwards quickly.  I can’t
say running, but he was moving very quickly backwards.  He had his gun pointed
at Mr. Camaso and he was yelling “Stop.  Get down on the ground.  Stop.”
And I clearly heard him say “Stop” three times, and Mr. Camaso was
within an arm’s length of him – or sorry, maybe twice the arm’s length of him
and Constable Dukeshire fired his gun three times.

Just before he got shot, I remember thinking, “he’s
going to hit him, he’s going to hit the policeman and I’m next”.

During the first shot, I saw Mr. Camaso’s left
shoulder go back like he was winding up.  He sort of – his shoulder went back
and he backed up like this, or he leaned back.  His upper body leaned back.

At the third shot, he was on Constable Dukeshire.

Constable Dukeshire took two
steps to his rear and to his right and turned away, and Mr. Camaso took
three – two running steps past Constable Dukeshire and on his third step he
went down to his knees and then down onto his left shoulder, left side of his
face.

[57]
After it became apparent to Mr. Morris that Mr. Camaso had
been shot, Mr. Morris started across the street.  As he did so, he heard a
loud voice behind him saying:  “stop, police, stop, get on the ground”.  He stated
that he stopped and put his hands to his side, looked over his shoulder and saw
a female police officer (Constable McNeil), and stated to her:  “I am
ambulance.  He’s down.”  Constable McNeil “gave me permission to move, so
I carried on” to attend to Mr. Camaso.  As he moved towards Constable
Dukeshire and Mr. Camaso, Mr. Morris stated that a different female
police officer (Constable Murphy) was approaching “from the south, I think”.

[58]
Mr. Morris stated that Mr. Camaso was “kind of crumpled up on
his side”, that Constable Dukeshire “rolled him onto his face”, and that
Constable Dukeshire pulled out his handcuffs and knelt on Mr. Camaso’s
back and pulled his arms out from underneath and handcuffed him.  Mr. Morris
indicated Constable Murphy had arrived and that she assisted Constable
Dukeshire in handcuffing Mr. Camaso.  Mr. Morris then attended to Mr. Camaso
in a vain attempt to keep him alive.

(B)     Actions of Constable Dukeshire

[59]
With Constables McNeil and Murphy, Constable Dukeshire ran back to the apartment
building.  Once there, he was directed to where Mr. Camaso had gone and to
where Mr. Morris had followed.  Constable Dukeshire was able to run faster
than Constables Murphy and McNeil so that he was ahead of them as he returned
to the apartment and then ran to locate Mr. Camaso.

[60]
When Constable Dukeshire reached the corner of the apartment building,
he was further directed towards the path and the break in the hedge.  After he
crossed over the footbridge, he was able to see Mr. Morris.  Constable Dukeshire
ran to catch up to Mr. Morris.  I find that, when Constable Dukeshire
reached Mr. Morris, Mr. Camaso was about 50 feet away from
Constable Dukeshire and about 50 feet away from his vehicle.  At his Discovery,
Constable Dukeshire stated that, when he caught up to Mr. Morris, this was
the first time that he noticed the vehicle of Mr. Camaso and saw that Mr. Camaso
was heading to it.  At his Discovery, Constable Dukeshire was asked what Mr. Camaso
was doing as he chased him and he stated:  “He was running, looking back at me,
running.  He was yelling back at me.  But I couldn’t understand what he
was saying.”

[61]
At Trial, Constable Dukeshire stated that he had previously encountered
individuals who were very fearful of him because he was in a police uniform.
When asked how he would deal with an individual exhibiting behaviour that
appeared as fearful, he responded:  “If that individual was fearful but not
exhibiting any behaviour that I considered dangerous to him or herself or
to anybody else, I would be as patient, as calming as I can be.”  He
was also asked the following question and gave the following answers in these
regards:

Q:        Yeah.  Would you reassure that individual that
you weren’t going to hurt him or her?

A:         If it was practicable to do so, yes.

Q:        What else would you do?

A:         In a situation
where you have time and the individual – again, I don’t mean to repeat
myself, but the individual is not a threat to him or herself or to anyone else,
I would try to access whatever resources I could to help that
individual, whether that be more officers, whether that be mental-health
specialists, family members.

[62]
As to why he did not call for backup, Constable Dukeshire stated:  “Because
there was two other officers on scene, and I had him in sight, was running
behind him.  At that point, I felt I would be able to catch him.”  “I
felt that if once – if I was able to catch Mr. Camaso, which I felt
that I would be able to do – that I would be able to control him at
that point.”

[63]
Constable Dukeshire was asked whether he thought of “changing any of
your tactics” when it was clear that Mr. Camaso was not complying with the
request to stop, and he responded:

At that point, no, because there’s
– I can’t think of a positive alternative.  He is approximately, at this
point, 50 to 75 feet beyond me.  My priority at this point is to catch him.  If
he is not understanding the language, that has no bearing.  I just need to
catch him at this point.

[64]
Constable Dukeshire indicated that his fear was that Mr. Camaso
would be able to get into his car and drive away and, as he had formed the
opinion that Mr. Camaso might be a danger to himself and to others, he
didn’t know in what condition Mr. Camaso was in to operate a car:  “I don’t
know what his intentions are.  And I’m afraid that if he gets in his car and
drives away, we will be losing an opportunity to do – to have him in our
custody.”

[65]
The vehicle of Mr. Camaso was parked in a small parking lot
adjacent to an elementary school.  When Mr. Camaso ran to the rear of the vehicle
and opened the trunk of the car, Constable Dukeshire stopped running.  I find
that Constable Dukeshire was then approximately 50 feet away from Mr. Camaso.
The vehicle of Mr. Camaso was facing towards Constable Dukeshire.  It was
at this point that Constable Dukeshire drew his weapon.  In this regard, Constable
Dukeshire stated at Trial:

I’m afraid that he is going for a weapon on the car.  The
trunk is open, I can’t see him at this point, I can’t see what he’s
doing.  He does look out at me from behind the car, but I can’t see his
body, and I have concerns for my safety, for Mr. Morris’s safety.
And so I want to create – or keep – at this point I now want to keep
distance until I – until I know exactly what he’s doing.

I was concerned, as I’ve said,
that he was going for something, potentially a weapon, and because they didn’t
know what potential weapon that might be, it could very well be a firearm, it
could be a lethal weapon of some kind, I wish to be prepared at that point
for whatever might come out from behind the car.  I knew at that point
that I had no cover, I was in an open field.  To my left were young
trees that would have afforded no cover, and to my right a playground, again
consisting of bars and things, but no cover.

[66]
Constable Dukeshire drew his weapon, aimed it in the direction of Mr. Camaso
and began looking down the sites of the weapon.  As Mr. Camaso stepped out
from behind the passenger side of the vehicle, Constable Dukeshire stated that
he saw something in the left hand of Mr. Camaso which he described as “…
something long and thin that ran along his left leg”.  Constable Dukeshire
stated that he recognized that this object was not a firearm.

[67]
Constable Dukeshire stated that he made “strong verbal commands” to Mr. Camaso
to drop the weapon and to get on the ground.  Regarding what he saw in the hand
of Mr. Camaso, Constable Dukeshire stated that he described it as a “pipe
of some kind” but something he could describe as a lethal weapon because “I interpret
that as a weapon that can be used against me in a lethal manner.  A weapon that
can cause me, or Mr. Morris, grievous bodily harm or death.”  However, Constable
Dukeshire stated that he had lost sight of Mr. Morris by this time.

[68]
Constable Dukeshire stated that he continued to aim his firearm in the
direction of Mr. Camaso, and that he was giving commands for Mr. Camaso
to get on the ground.  Constable Dukeshire stated:  “I believe Mr. Camaso
was yelling back at me, but again I could not understand what he was
saying.”  In a statement that he gave on July 14, 2004, Constable
Dukeshire was asked:  “What kind of command was he yelling back at you?”, and
he answered:  “I heard no words whatsoever, but yeah, it was the tone, it was,
it was frantic, it was uh, I don’t know if I can say angry, but it
wasn’t, it wasn’t pleading in any way, it wasn’t ‘help me’, it was just, it
just seemed to be frantic uh, maybe scared, um, but uh definitely agitated.”
At his Discovery, Constable Dukeshire was asked whether Mr. Camaso looked
petrified and he stated:  “He could have.  He looked agitated to me.”
Constable Dukeshire was also asked whether Mr. Camaso looked terrified,
and he stated:  “He could have.”

[69]
Constable Dukeshire was asked whether he should have tried to use “some
different language to him to try and reassure him that you are not going to
hurt him”, and he stated:  “At that point, no, I’m giving him my commands to
get down to the ground because he needs to be controlled at this point.”
Constable Dukeshire was asked to speak in the same voice he was using
throughout to deal with Mr. Camaso.  When he did so, it was clear that
Constable Dukeshire was using a very loud voice.

[70]
Constable Dukeshire stated that Mr. Camaso then stepped back behind
the vehicle and that he then came out “with his hands up, extended over his
head, both hands were empty.  I could no longer see a weapon at this time.”
At Trial, Constable Dukeshire illustrated this by extending his upper arms horizontally
from his shoulders, with his elbows bent upwards and his palms facing out.  Constable
Dukeshire indicated that he felt “some degree of relief, that it looked like he
was starting to comply with my commands”.  At Trial, Constable Dukeshire
stated:

I recall him yelling but again
not understanding what he’s saying, I’m yelling at him to get on the ground …
Initially he doesn’t respond at all physically, but shortly after – and at this
point I’m closing the distance a little bit between myself and him, just
walking towards him – he begins to get down.  Now he’s looking at me and he’s
looking at the vehicle and his hands are up, but there’s a point there where he
begins to bend at the waist as if to bend forward and to get down.

[71]
Constable Dukeshire confirmed that he knew that Mr. Camaso was
irrational at this point, but he nevertheless continued to walk towards him
with his gun drawn.  When asked what he thought he would do if he reached Mr. Camaso,
Constable Dukeshire stated:

At that point, Mr. Camaso was showing signs that he was
going to get to the ground.  As I am approaching – and this is just a few
feet that I’ve gotten closer – my hopes is that he will get to the ground and
we’ll have him prone on the ground, at which time I will have back‑up
so that there is coverage on him – and when I say “coverage”, I mean
a firearm on him – while he’s handcuffed.

I believe that Constable McNeil
and Constable Murphy were in the near vicinity.  I voiced my location on
the radio prior, and could I know that they would be there at that point,
no, but I believe strongly that they were on their way to joining me.

[72]
At his Discovery, Constable Dukeshire was asked why he would move
towards someone he thought was dangerous, and he stated:  “Because at this
point, I’m not seeing weapons, but I haven’t ruled out the possibility of
the presence of weapons and I’m getting closer so that I can get a better
look.”  He was asked where Constables McNeil and Murphy were at this point, and
he stated:  “I did not know, but I knew that they would be coming very
soon.”

[73]
Constable Dukeshire testified that he “left my position, I’m still
telling him to get on the ground”.  He stated that Mr. Camaso was then
slightly closer to him (“still approximately 50 feet”, “I guess minus the
length of the car”).  Constable Dukeshire further testified”

At this point, I slowly started to walk towards him.  My
thinking is that he is still potentially a threat towards me.  I want him
on the ground because that from our training is the position where a subject is
most easily controlled.  He’s demonstrated to me already that he has weapons
and a will – a potential willingness to use weapons.  So with that in mind,
I don’t know if he has a weapon on him.

… I couldn’t see what he had done behind the vehicle
at that time.  So I don’t know if he has anything on him.  So for my
safety, or Mr. Morris’s safety, I don’t know Mr. Morris’s exact
location at this point, it’s because of that I wish to have my firearm out
still covering Mr. Camaso.  I know that Constable McNeil and
Constable Murphy are close by, and will be there shortly.  So my thoughts at
that point are that while maintaining cover on him, once the next officer
arrives that we would have him handcuffed and under our control as safely as
possible.

I slowly started to close the
distance, walked towards him, at which time he straightens up and sprints back
to the rear of his car.  I yelled at him to stop, to get on the ground, he
made no motion to comply.  He ran alongside the passenger side of the vehicle, directly
to the rear of the car, and immediately came out from behind the rear of the
car.  I was in the same position that I had close to when he was
bending at the waist.  So I was to the front of the car, to my left [sic]
of the car.

[74]
Constable Dukeshire stated that, very briefly after Mr. Camaso went
behind his vehicle, he “immediately came out from behind the rear of the car,
brandishing two – it turns out a pipe and a crowbar.  The pipe was
approximately two feet and the crowbar was approximately two feet long.  He was
holding them in each hand above his head …”.  “He – sprinting right at me,
yelling, holding the pipes in that manner.”  “Or the pipe and the crowbar”.  “From
the moment he started running, from the point that he straightened up, he never
stopped running save for probably less than a second that it took Mr. Camaso
to retrieve the pipe and the crowbar from the rear of the car.”

[75]
Constable Dukeshire was asked whether he considered firing a warning
shot, and he stated:  “No, I did not.”  He was asked whether he was aware
of a policy dealing with the use of warning shots, and he stated:  “I would not
be able to quote it to you.  I’m aware that a policy exists.”  When asked what
the policy stated, he stated:  “I do not know.”

[76]
Constable Dukeshire further stated:  “I am yelling at him to drop them,
to get on the ground.  And I am immediately backpedalling.  I am
backing up as quickly as I can trying to get away from Mr. Camaso.”
As to why he was backing up, Constable Dukeshire stated:

Because I felt that he was
going to attack me with these weapons.  And I wanted to create as much
space between myself and him as I could.  He was running full speed,
holding the weapons up in a threatening manner, screaming.  I’m trying to
create as much distance as I can.  I recall from training, although I’m
sure it’s instinct as well, to create as much distance as you can in a
situation like this.  I don’t want to take my eyes off him, I wanted
to see everything that he’s doing.  I don’t know where Mr. Morris is,
and I don’t know where the other officers are at this time.

[77]
Constable Dukeshire stated that he still had his firearm pointed at Mr. Camaso
and:

… I’m backing up as quickly as I can.  I’m yelling at
him, I’m telling him to drop them, get on the ground.  I remember telling
him, “drop them or I’ll shoot”.  I remember him closing to within around twenty
feet or so.  And I remember thinking at that time about instruction that I’d
received, I remember some training somewhere in Winnipeg about how not to
let somebody in this circumstance get within twenty feet.  That, that is when
you shoot.  I did not want to shoot.  I continued to backpedal, and
he got – kept closing within twenty feet.  He got to around ten feet and
I started to – I tried to break off his path.  So I started to
curve to my left.  And this whole time he never lowered the pipe or the
crowbar, he’s running at me full tilt, he has them over his head the entire
time.  We were looking at each other’s eyes, gets to about – as I’m curving to
my left, he follows me, and he stays in my path.

And he gets to within six feet or
so, and I remember thinking this is – he can hit me now, this is – I have
no other choice, I have no other option, I’ve run out, I don’t –
there’s nothing else, and so I shot.  I shot twice.  He continued at
me.  I shot a third time and he fell to the ground.

[78]
With Mr. Camaso on the ground, Constable Dukeshire states that Mr. Camaso’s
arms were tucked underneath his body but he could see what he believed to be
the crowbar.  “So I put my knee on his back and I pulled the crowbar
out and threw it away in the direction towards the – the [foot]bridge.”  At
Trial, Constable Dukeshire motioned that he had used his left hand to throw the
crowbar.  Constable Dukeshire also stated:  “I believe I was drawing back
on my training at that time, and thinking that I wanted to get his arms
out from underneath him and get him handcuffed.  So started to do just that.”

[79]
Constable Dukeshire believes that it was at this time that Constable
McNeil arrived and began to assist him.  Constable Dukeshire recalled seeing
the left hand of Mr. Camaso with one of his fingers “shattered, badly
injured”.  He recalled Mr. Camaso being rolled over and he recalls seeing
two bullet holes at that time – one in the chest and one below the chest on the
left side.  He next recalled someone touching him on his shoulder and walking
him away from where Mr. Camaso lay.

(C)     Actions of Constable McNeil

[80]
After they received the call that Mr. Camaso was back at the
apartment, Constable McNeil ran with Constables Dukeshire and Murphy back to
the apartment.  Constable Dukeshire was ahead of her so she was running after
him.  When Constable McNeil reached the end of the apartment building, someone
told her where Constable Dukeshire had gone.  While she was still moving along
the hedge, she heard yelling from the other side of the hedge and stated at
Trial.  “That made me nervous.”

[81]
When she was fairly close to the footbridge, Police Dispatch came on the
air and asked her “if I needed Sparky”.  This was explained as being a
reference to the Taser device that was available in limited numbers at the
Saanich Police Department but was not regular issue for Constables  I find
that this question was posed at approximately 10:15 a.m..  In response to the
question, Constable McNeil stated:  “Standby”.

[82]
After she went over the footbridge, Constable McNeil saw Constable
Dukeshire running along “maybe 30 to 40 feet ahead of me.”  Constable McNeil
saw only one male running ahead of Constable Dukeshire.  At the same time,
Constable Dukeshire radioed, “In foot pursuit, heading towards Richmond …
[indecipherable] rear of the school.”

[83]
At 10:15:26, Constable McNeil radioed this description of the person she
saw running:  “White shirt, black pants, dark hair.”  Police Dispatch then
stated:  “Saanich copies, uh, foot pursuit towards Richmond Elementary, dark
pants, white t-shirt, dark hair.”  At what was probably 10:15:54, Constable
McNeil radioed:  “Is there a unit available near their car in the area?”.  An
unknown voice then radioed:  “Saanich, we got K9?”  At what was probably 10:16:08,
Police Dispatch radioed:  “Negative, we would check with the City and Sergeant
Melville’s en route from HQ”.  At this time, Constable McNeil had not seen Mr. Camaso.
Believing that the person ahead of Constable Dukeshire was the subject of the
complaint, Constable McNeil drew her firearm and yelled:  “Saanich Police.  Get
down.”  She then ascertained that it was Mr. Morris.

[84]
I find that Constable McNeil was approximately 60 to 100 feet away from
Constable Dukeshire when she made her observations about what Mr. Camaso
was doing and how Constable Dukeshire responded.  Regarding Mr. Camaso and
what then happened, my notes from Trial indicate the following testimony of
Constable McNeil:

Saw Dukeshire stop; drew his firearm.  I was confused
because I did not see what the threat was.  Saw Camaso coming at Dukeshire
in a southwest direction.  Both hands raised.  He hunched over.  He was
charging.  Everything happening at once.

As soon as Mr. Camaso was charging, Constable Dukeshire
started to back up as fast as he could.

He shifting back and forth, trying to avoid.

Dukeshire did that until Camaso about an arm’s length away,
and he then fired.

Camaso not stop or drop until
third shot.

[85]
In the statement that she gave on July 14, 2004, Constable McNeil
stated:

… Kris [Dukeshire] kind of was backing up and kind of went
moving to the side, and, and sort of, like kind of backed up and moving to the
side and the guy was still coming so he fired once.  Um, and the guy was still
coming and he kind of kept backing up and I think kind of turned again and
fired a second shot and the guy was still standing and he then fired the third
shot from what I believe to be the, the last shot that I recall and
um, that the subject of complaint fell.

… I saw Kris [Dukeshire]
go kind of down [on] his knees to check him.  I looked over to my right at
that moment out of my periphery, it was Kathleen [Constable Murphy] who popped
out of the hedge.

[86]
At what appears to be 10:16:13, Constable McNeil used her radio to state:
“Saanich shots fired, one down.”  An unknown voice then states:  “What happened?”,
and Police Dispatch states:  “Copy shots fired, one down.”

[87]
There was an important discrepancy in the testimony of Constable
McNeil.  At the Inquest, Constable McNeil described Mr. Camaso moving
towards Constable Dukeshire as follows:  “He was walking, but it wasn’t a walk
and it wasn’t a run.  It was … just like walking really fast, like charging
isn’t the right word but sort of in as fast a walk as you can until you’re
going to run. …”  At her Discovery and at Trial, Constable McNeil described Mr. Camaso
as “charging”.  There was no real explanation as to why her testimony changed.
This is of importance as it goes to the question of the perceived threat in the
mind of Constable Dukeshire.

[88]
Constable McNeil in her March 14, 2004 interview stated that she
only saw one “pipe” in the hand of Mr. Camaso, but that, when she arrived
where Mr. Camaso lay, she saw two “pipes” on the ground.  I record
Constable McNeil as stating at Trial that Constable Dukeshire said something
like “evidence be careful” when she arrived at where Mr. Camaso lay.  Regarding
what she saw on the ground and what she recalls seeing in the hand of Mr. Camaso,
Constable McNeil stated:  “I’m thinking the one that was south was the one that
was longer but the one that was longer I think is the one that I saw
in his hands cause I mean, for where I was it appeared to be about
this long.”

[89]
Constable McNeil assisted Constable Dukeshire and Mr. Morris.  I record
her as stating at Trial that Constable Austin arrived and led her and Constable
Dukeshire away.  She stated that Constable Austin asked Constable Dukeshire if
he was okay and Constable Dukeshire said yes, “but I knew he wasn’t”.  “No
one would be.”  “I wasn’t.  He was frozen.”

(D)     Actions of Constable Murphy

[90]
Constable Murphy was running with Constable McNeil behind Constable
Dukeshire and, instead of proceeding left to go along the hedge to cross over
the footbridge, Constable Murphy ran right.  While she had her radio on, she
did not hear any transmissions.  After running alongside the hedge, she saw a footbridge
beyond a fence.  Constable Murphy crossed onto the footbridge.  Constable
Murphy did not know the location of Constable Dukeshire and Constable McNeil
when she did so.

[91]
At her Discovery, Constable Murphy stated that, when she was crossing this
other footbridge, she heard three shots.  In response to the question “did you
see Constable Dukeshire shoot?”, Constable Murphy stated:

I saw Cst. Dukeshire and Mr. Camaso
standing what appeared to be very close to one another.  I remember seeing
at least one arm of Mr. Camaso’s in the air.  I couldn’t tell you
whether were was – if he had both arms up or hands up or not.  And then I remember
they hit the ground.  I don’t – I don’t know who fell first at this –
at this point, but I remember seeing Cst. Dukeshire go down to the
ground as well and, with the shots that had been fired, I didn’t know who
had been shot at that point, if anybody.

[92]
Constable Murphy gave a statement on July 16, 2004.  Constable
Murphy was asked what was the distance between Mr. Camaso and Constable
Dukeshire when she heard the three shots fired and she stated:  “I know it wasn’t
that far because … he dropped so quickly – like it must have been like a, a
matter of maybe a couple of metres.”  “I felt because I know that they
both went down fairly soon after it.”  She stated that she pulled her weapon at
this point and saw Mr. Camaso “drop to the ground”.  She also stated that
she saw “items fall to the ground”.  Regarding these items, she stated:

They were long but I don’t
know, I couldn’t tell from a distance what they were, and I saw Kris
[Dukeshire] drop to the ground as well right of [Mr. Camaso] … so
I wasn’t sure, at that point, who was shot, if anyone was shot, and I,
I was, I didn’t know if it was Kris, I thought maybe he had been
shot, so I don’t remember the whole thing, I just remember running
… I got there and I heard Constable McNeil say that there was uh
shots fired, one down, and I remember thinking um, “okay, it was the SOC
[subject of complaint].

[93]
Regarding the shots that she heard, Constable Murphy in her statement
was asked whether she remembered the succession of the shots and she stated:  “I’m
not sure if there was two fired very close and then one after or if it was one
and then two more.  I know that two went together but it, sorry I can’t
say whether they were the first or the last.”

[94]
My notes from the Trial record the following testimony of Constable
Murphy:

“When shots were fired, I pulled
out my firearm as not sure what had happened.”    When she came to where the
shooting had taken place, she observed:  “Male on stomach”.  “Dukeshire trying
to handcuff him.”  At that point not sure where McNeil was located.

[95]
At Trial, Constable Murphy stated that she was approximately
200 feet from Constable Dukeshire and Mr. Camaso when the shooting
occurred.  I record her as being asked the following questions and giving
the following answers:

Q         Both standing facing each other and
stationary.

A          Correct.

Q         Not charging Dukeshire.

A          No.

Q         Dukeshire not backing up or taking evasive
action.

A          Correct.

Q         What did you see?

A          Two people
standing quite close – heard shots; both went down; not sure who had been shot.

[96]
Constable Murphy stated at Trial that she did not see Dukeshire throw
anything.  She indicated that she saw only one item (“a pipe”) in the area and
could not make an estimate of how far it was away from Mr. Camaso.

[97]
Constable Murphy reached where Mr. Camaso was lying and began to
assist Constable Dukeshire.  Constable Murphy had two years’ experience as a
paramedic.  After assisting paramedics at the scene, Constable Murphy was asked
to accompany Constable McNeil to the Saanich Police Station.  She did so.

THE AFTERMATH FOR MS. CAMASO

[98]
Ms. Camaso was taken to the Saanich Police Department (“Headquarters”)
that day and was asked to and did give a videotaped statement.  The
circumstances surrounding her being taken to Headquarters that day evidences an
incredible insensitivity by the Saanich Police Department.  An officer went to
where Ms. Camaso and her child were located and Ms. Camaso was asked
to come to Headquarters.  The officer started to drive towards Headquarters,
was asked by Ms. Camaso what had happened to her husband, evaded answering
that question, eventually stopped on the way to Headquarters at the same mall
where Ms. Camaso was employed, moved to a different location after Ms. Camaso
stated that she wished to avoid the embarrassment of being seen in a police
cruiser at her place of employment, and was in the police vehicle when she was
told that her husband was dead.  Despite her shock and horror upon hearing of
her husband’s death, Ms. Camaso was nevertheless taken to Headquarters so
that she could give a statement about what had led her to leave their apartment
with her daughter that morning.  The video interview of Ms. Camaso took
place at 11:48 a.m. on July 11, 2004.

[99]
I cannot find that there is any acceptable reason why it was necessary
for Ms. Camaso to immediately give a statement.  No details that she could
provide would change what was known to Mr. Morris and the three Constables
and what they relied upon to justify the actions that they took that morning.  I am
satisfied that, being taken to Headquarters after receiving the news that she
had just received, was a truly terrifying and upsetting experience for Ms. Camaso
and that this insensitivity has deepened her suspicion of police generally and of
the Saanich Police Department specifically.  In this regard, Ms. Camaso
was asked the following questions and gave the following answers at her Discovery:

Q         … you’re suing my clients in part for the
manner in which they behaved towards you, as I understand the claim.

A          It’s not the actual physical behaviour.  It’s
the fact that they insist that I gave a statement right away, that I end
up agreeing to be videotaped, because I could see that he’s not going to
let me go.  Part of it – maybe it’s my feeling that I’m not going to be let go
because I’m scared that they won’t let me go.

Q         Okay.

A          It’s part of my
background.  Police officers have the rights over us.  I’m scared about
torture, to be very honest.  I felt I had no chose [sic] but to give
that videotape statement otherwise they won’t let me go and I wouldn’t be
able to see my daughter.  I remember all that – what’s on my mind is
I wanted to see my daughter.  I wanted to hug her.  I wanted to
be gone.  I wanted them to let me go.

TESTIMONY OF OTHER WITNESSES REGARDING EVENTS OF
JULY 11, 2004

[100]  S.A.
stated at Trial that she was in the passenger seat of the vehicle being driving
by her husband, that she saw Mr. Camaso running from his car towards a
policeman, that he was holding “sticks”, that she saw one policeman behind the
vehicle and one policeman to the right of the vehicle, that she could not
recall exactly what was in Mr. Camaso’s hands (I record her as stating “–
both hands in the same area – maybe one thing held by both hands”), that Mr. Camaso
was “close to the policeman” when he was shot.  (I record her as stating
that he was “as close as two metres”.)  Under cross-examination, S.A. described
the policeman as “not backing up” and as “standing in one spot”.

[101]  S.A. gave
a statement later that day.  She was asked whether what was in Mr. Camaso’s
hand looked like iron bars and I record her as saying “not to me”.  In the
statement, S.A. stated that Mr. Camaso was holding two things:  “One looks
like a baseball bat, and the other one looks like a piece of stick.”  “He had
one item in one hand and another in another hand.”

[102]  U.B. was
looking out the window in her apartment which is across from the scene of the
shooting.  A paramedic and a policeman came into her view but then “all went
out of my field of view – because of the trees”.  She stated that she heard a
voice say, “Down to the ground”, that it was repeated three times, she heard a
different voice say “kill me”, and then a different voice two or three times
saying “get down on the ground”.  She then heard “three quick shots” “then
silence”.  Under cross-examination, U.B. confirmed that she had a glimpse of Mr. Camaso
through the trees and she saw him coming towards a policeman.  U.B. gave a
statement the same day.  U.B. confirmed under cross-examination that she had
told the interviewer that she did not see anything in the hands of Mr. Camaso.
I record her as saying in this regard, “not see his hands or his face”.
She also stated that Mr. Camaso “may have changed direction”.

[103]  D.G. did
not witness the incident.  At Trial, D.G. testified that he heard shots fired.  I record
him as stating they were “rapid in succession – could have been three or four”.
“No interval between each.”  He indicated that it was about five to six hundred
metres away from the scene of the shooting.  When he heard the statement made
the next day on the radio that the officer had fired one round, told Mr. Camaso
to stop, and then fired another round, he wrote to the Saanich Police
Department on July 16, 2004 stating in part:  “I heard three
gunshots.  I am in the military and immediately recognized them for what
they were.  They went off in rapid succession, with no pauses, in the space of
a few seconds.”  “My recollection of what I heard seems to differ from the
media reports that the police fired a shot, paused, and then fired two more
shots.”  D.G. indicated that a message was left on his answering machine
thanking him for his letter, but that there was no further contact made.  D.G.
was an impressive witness.  He was an artillery man for 24 years and was
familiar with a number of types of weapons.  I record him as stating at Trial:
“Shots were in rapid fire.”  “How we would fire on the ranges.”

ARRIVAL OF OTHER OFFICERS AT THE SCENE OF THE
SHOOTING

[104]  A number
of officers arrived at the scene, cordoned off the area, dealt with the three
Constables, and took possession of evidence.

(a)      Constable Austin

[105]  Constable
Ryan Austin arrived at the scheme at approximately 9:23 a.m.  Constable Austin
testified that he “moved” Constable Dukeshire and Constable McNeil to his own
cruiser.  Constable Austin “took control” of the scene.  In his report, Constable
Austin stated:  “I also observed two metal pipes laying a short distance from
the SOC, to the west, in the grass.”  Constable Austin testified at Trial that
he estimated that the two metal pipes were approximately 6 feet away from
where Mr. Camaso lay, and that there was approximately 6 to
8 feet between the two metal objects.

[106]  The notes
that Constable Austin took that day include the following:  “male removed pipe
from his vehicle. and despite verbal commands to stop male charged and
attacked.”  The following note was contained under the name of Mr. Morris:
“saw incident, says he saw SOC attacking officer with pipe and getting
shot” [emphasis added].

[107]  Constable
Austin left the scene in the ambulance which transported Mr. Camaso to the
hospital and then returned to the scene at approximately 11:49 a.m.

(b)      Acting Sergeant Melville

[108]  At
approximately 9:27 a.m., Acting Sergeant Melville arrived at the scene of the
shooting, and “took over the scene”.  The “Occurrence Report” notes made by
Acting Sergeant Melville on July 14, 2004 including the following:

[Mr. Morris] “saw incident, says he saw SOC attacking
officer with pipe and getting shot”.

Cst. DUKESHIRE appeared
shaken, apparently had a cut or was bleeding from what was believed to be his
left index finger, and when the writer inquired as to his well-being, he
understood and indicated that he was alright.  The writer requested to Cst. DUKESHIRE
to refrain from speaking about the incident with anyone at that time and his
sidearm was seized by the writer and placed in a Ziplok bag.  The firearm was
turned over to Sgt. Nadiuk who shortly thereafter was tasked with the
transportation of Cst. DUKESHIRE back to headquarters.  Believing that Cst. MCNEIL
was the other party directly involved in this incident, the writer tasked Cst. Murphy
to transport Cst. McNeil back to headquarters.

(c)      Constable Eassie

[109]  The
exhibit flow chart indicates that a Constable Eassie seized the following on
July 11 at approximately 4:25 p.m.:  “Iron Bar, Rusted, Hollow,
Approximately 24 inch length” and a “Black Crow Bar, Approximately
15 inch length”.

(d)      Acting Corporal Olsen

[110]  Acting
Corporal Olsen arrived at the scene at approximately 10:55 to take measurements.
He established that the distance between the blood on the ground and the pipe
was 17 feet, the distance between the blood and the crowbar was
16.4 feet, and the distance between the pipe and the crowbar was
19.95 feet.  At Trial, it was the view of Acting Corporal Olsen that:  “…
they were either thrown or fell into that position as a result of the energy
that was being exerted from east to west from the person that was carrying them”.
It was his opinion that a bullet hit the crowbar, but that the crowbar
continued in the same direction:  “… the crowbar has substantially more mass
than a bullet, and that the original force against the higher mass probably
would have went out, it would have continued on in the direction of its initial
force”.  When asked whether he had done any calculations or computer simulation
of the velocities involved to support his opinion, he responded:  “No, this is
just my experience.”

[111]  Acting
Corporal Olsen indicated that, when he first observed and inspected the iron
bar, he did not see any blood on it and, regarding whether there were marks on
it, he stated:  “… I looked at it.  I did not look at it with a
magnifying glass to that effect.  I didn’t see any obvious recent score
marks on it that would have been a bright silver, as I could see some, at
least one on here today.”  Acting Corporal Olsen confirmed that there was no
fingerprint analysis on either the crowbar or the lead pipe, even though he had
been instructed to undertake such analysis.

[112]  While
photographs were taken of everything that Mr. Camaso was wearing and had
in his possession, there were no photographs taken of what Constable Dukeshire
was wearing or had in his possession.  When asked why this was the case, Acting
Corporal Olsen responded:  “What sort of meaningful objective would I have
been working towards to advance the case?”  Acting Corporal Olsen did agree that,
if a police officer was not involved, then photographs would have been taken of
the “surviving individual, and the items that the person had in his or
possession”.

[113]  Acting
Corporate Olsen confirmed that no gunpowder residue check was done on the
clothing of Mr. Camaso:  “There wasn’t any reason to.”  Dealing with the
question of the presence or absence of gunshot residue on the victim, Acting
Corporal Olsen did admit:  “If there was any question about the distance that
it was done … or if it was a case of struggling for a gun where one person
was holding a gun at near proximity to another person, then it would be done in
all likelihood.”  He did agree that the question of proximity was important if
the issue was self-defence:  “Yes, it would be.  Same thing if it was a police
officer that was in a struggle with someone else, if it was a question.”

[114]  While
agreeing that the objective of an investigation was to determine whether a
homicide was culpable or not, Acting Corporal Olsen stated:  “Well, there
certainly wasn’t any evidence of that in this investigation.”  Acting Corporal
Olsen was asked whether he had been told that “Constable Dukeshire was
blameless”, and he stated at Trial:  “Well, not in those words, but I certainly
did not see or hear anything along the lines that he was blameworthy.”
However, he did testify:  “If I had seen anything that had whatsoever
contradicted what I have been told, I certainly would have brought it
to the investigators’ attention.”  Mr. Olsen could not remember who had
related to him the circumstances of the shooting “as they were then understood”.
Mr. Olsen was then asked the following question and gave the following
answer at Trial:

Q         I take it from your answers that from the
outset of your work you understood and believed that there was no doubt that
this shooting by Constable Dukeshire was completely justified in the
circumstances?

A          Yes.

[115]  Mr. Olsen
was asked whether there had been a test firing of the pistol of Constable
Dukeshire “to determine what the likely trajectory was of the bullet casings
when they were ejected”, and he responded:  “I don’t think so, none was ever
brought to my attention.”  He was asked whether that would assist in drawing
conclusions about the likely standing position Constable Dukeshire was in when
he fired, and he answered at Trial:

A          Not necessarily. Couple of variables when I’ve
fired my Model 22 Glock, those resulting brass that’s ejected from the weapon
spray around usually over to the right-hand side where the ejection port is,
and the other variable that I do not know about is what may have been
disturbed before I got there again by emergency services personnel working
on Mr. Camaso.

Q         So is it fair to say then that these bullet
casings identified by the numbers 4, 5, and 6 do not assist in ascertaining
where Constable Dukeshire may have been when he fired the three shots in
question?

A          There may be some
inference drawn, but I certainly wouldn’t pin it down to a specific spot,
based on those variables that I told you.

(e)      Sergeant Irwin

[116]  Sergeant
Irwin went back to the scene on July 15, 2004 at 11:30 a.m. and found a “Bullet
Fragment, Copper”.  It was estimated that the jacket was 12.5 feet away from
the bullet casings identified on the 11^th.  Regarding this bullet
fragment, Acting Corporal Olsen described it as being “near the surface”.  As
to whether he had concluded that it had fallen on the ground and ended up in
the location where it was seen, Constable Olsen stated:

I don’t know if I came to
that particular conclusion.  It was there and I thought it was a pretty
good assumption that somehow it was related with the shots that were fired.  I couldn’t
way whether it fell there directly after or whether it had been disturbed by
people walking around out there, the emergency services personnel, I don’t
know.

[117]  There was
no explanation given by any witness as to why this bullet fragment was not
found when a search was made on July 11, 2004.  At the same time, there
was no way to verify whether the bullet fragment had been moved between
July 11 and July 15.

SAANICH POLICE DEPARTMENT policies
in effect

[118]  The Policy
of the Saanich Police Department contains the following under the heading “Use
of Force”:  “Police officers will use only force which is reasonably necessary
to effectively and safely bring an incident under control while protecting the
life of the officer or another.”  Under the notation “Excessive Use of Force”
is the provision:  “Police officers will be criminally responsible for any
excessive use of force beyond that which is deemed reasonable in the
circumstances.”

[119]  Under the
heading “Justification for the Use of Force”, the use of force by an officer
should be undertaken to “gain control of a subject who is being non-compliant
with an officer’s lawful order”; “protect themselves or others from physical
harm” or “bring an unlawful situation safely and effectively under control”.
It is also noted “The reasonableness of an officer’s use of force will be based
upon whether the officer’s actions are objectively reasonable in the light of facts
and circumstances perceived by and available to the officer at the time of the
relevant incident, and whether the officer was acting in good faith.”  There
was also the following further provision:

Throughout this policy it will
be seen that the concept of “reasonableness” is central to the application of
force, therefore important factors to consider when determining reasonableness
will include:

(a)  subject factors:
(i)      age,
(ii)     size,
(iii)    gender,
(iv)    skills or perceived skills,
(v)     multiple subjects,
(vi)    weapons,
(vii)   pre-assaultive signs,
(viii)   mentality,

(b)  officer factors:
(i)      size,
(ii)     age,
(iii)    gender,
(iv)    skill level/physical abilities,
(v)     exhaustion,
(vi)    injury,
(vii)   ground fighting,
(viii)   perception of threat,
(ix)    imminent danger of death or serious bodily injury,
(x)     position, time, distance,
(xi)    proximity to weapon,
(xii)   tactical withdrawal possibility/disengagement,

(c)  environmental
factors:
(i)      friendly/hostile territory,
(ii)     availability of cover,
(iii)     proximity of back-up,
(iv)    terrain (footing),
(v)     weather (effectiveness of a force option),
(vi)    lighting (ability to see).

[120]  There is a
further provision under the heading “Justification for the Use of Force” which
includes:  “Unnecessary or excessive use of force against any person will be
prohibited.”  “In making an arrest, an officer will use only such force as is
reasonably necessary to secure and detain the offender.”

[121]  A “Use of
Force Continuum” is also set out, moving from “presence” to “communication” to “open
hand control” to “taser” to “capsaicinoid aerosols” to “empty hand impact
techniques” to “impact weapons” to “lateral neck restraint” to “firearms”.
Under the heading “Communication”, there is a notation of:  “The goal of every
officer will be to gain voluntary compliance from subjects through the use of
communication skills.”  “Communication skills should be viewed as an option at
every incident, when appropriate and reasonable to do so.”

[122]  Under the
heading “Deadly Force” is the notation:

The Saanich Police Department
recognizes that in a deadly force situation where an officer needs to protect
himself or others from death or serious bodily harm, the officer’s appropriate
force option may be their firearm.

The
Department in no way expects a supervisor to use a Taser as a replacement for a
firearm in a deadly force situation.

[123]  Under the
heading “Impact Weapons” are a number of weapons including a listing of “batons”.
It is noted that:  “Impact weapons will be justified to be used by an officer
to control a subject who has become, or if the officer reasonably believes the
subject is going to become physically assaultive towards the officer or another
person, and lower response options had failed or were inappropriate and
unreasonable to be used by the officer.”

[124]  Under the
headings “Discharging Firearm”, “Drawing of Firearm”, “Alarm” and “Warning” are
the following comments:

Officers will be justified in
discharging their firearms at a subject when:

(a)  such
action is required to protect themselves or another person from being killed or
seriously injured, and

(b)  the
officer reasonably believes that lower response options are inappropriate or
have failed.

When the firearm response
option is used, the officer will shoot with the intent to stop the threat of
death or serious bodily injury to themself or another person.

Once there is no longer a
threat of death or serious bodily injury to the officer or another person, then
de-escalation of force will take place where appropriate and reasonable to do
so.

Officers will not be
criticized for the use of deadly force when it is found that such force is
justified and necessary based on the facts and circumstances as they reasonably
appeared to the officer at the time.

Justification for the use of a
firearm by an officer will be limited to the facts as they reasonably appeared
to the officer at the time of the decision to shoot.

An officer’s decision to draw
or exhibit a firearm should be based on:

(a)  the
tactical situation,

(b)  and
the officer’s reasonable belief there is a substantial risk that the situation
may escalate to the point where deadly force may be justified.

The discharge of a firearm
will be permitted for giving an alarm or calling for assistance, for an
important purpose, where no other means can be used.

Warning shorts will only be
used in those serious situations where:

(a)  an
officer reasonably believes that a person(s) is about to commit serious bodily
injury or death against the officer or another person,

(b)  the
officer reasonably believes that the use of warning shots would create no
substantial risk of injury to innocent persons, and

(c)  the
use of warning shots would alleviate the need to escalate to the use of deadly
force.

When an officer is attempting
an arrest, or preventing the escape of a person for a serious indictable
offence, and all other response options have failed or were inappropriate or
unreasonable, and the only other way to effect the arrest is to discharge their
firearm at a person, the arrest will not be made unless the following are
present:

(a)  the
serious indictable offence for which the subject was arrested involved the use
of or threat of death or serious bodily injury,

(b)  the
officer reasonably believed the subject reasonably posed a significant threat
of death or serious bodily injury,

(c)  the
officer reasonably believed that the discharge of a firearm created no
substantial risk to the safety of bystanders or other people in the immediate
area, and

(d)  where
appropriate and reasonable to do so, the officer should give some warning.

[125]  Regarding
the heading “Deadly Force (All Options) are the following notations:

Deadly force includes any
force option that has the high probability of causing death or serious bodily
injury.

Deadly force will only be used
towards a subject when the officer reasonably believes:

(a)  it
is necessary to protect the officer or any other person from the use or
threatened imminent use of deadly force,

(b)  it
is necessary to protect the officer or any other person from death or serious
bodily harm, and

(c)  that
lower force options would have failed or would have been inappropriate to stop
the threat of death or serious bodily injury to the officer or another person.

All three conditions must be
present in order for deadly force to be used.

Justification for the use of
deadly force will be limited to what reasonably appeared to be the facts known
or perceived by the officer at the time the officer decided to use deadly force.

Facts
unknown to the officer, no matter how compelling, cannot be considered in later
determining whether the officer’s action was justified.

[126]  Under the
heading “Use of Force” and under the heading “Deadly Force” is the following
policy:

In every police incident that
results in death or serious bodily injury, the following procedures will be
undertaken:

(a)  the incident scene will be preserved and treated
as a major crime scene,

(b)  if death or injury resulted from a shooting, the
officer’s firearm will be seized by the supervisor on the scene, or by the
senior officer in attendance, and treated as an exhibit,

(c)  the seizure of the officer’s gun should be done
in private, as discreetly as possible, and the officer will be given a
replacement weapon,

(d)  the Chief Constable will be immediately notified
of the incident and initiate an investigation,

(e)  the Staff Sergeant l/c Patrol will be called to
the scene,

(f)   investigators will be called to the scene to
conduct a comprehensive investigation,

(g)  the forensic identification section will be
called to the scene,

(h)  the incident will be subject to a review.

…

Any
police officer involved with the use of force will complete a report of the
incident, whenever that officer applies a force option (other than presence,
communication or for example: a nudge or a push to direct) to a person.

[127]  Under the
heading “Reporting” is the provision that a written report will be submitted
whenever a police officer “takes an action that results in, or is alleged to
have resulted in, injury or death of a person”, “applies force through the use
of a weapon”, “discharges a firearm”, and “applies force by any means, other
than routine handcuffing or low levels of restraint and compliance”.

THE AFTERMATH IN RELATION TO GENERAL PRINCIPLES

[128]  When Chief
Egan arrived at Headquarters about 11:00 a.m., he saw Constable Fraser who was
a member of “our trauma team”, “so I assume grief counselling was going on”.
He indicated that he said to Constable Dukeshire:  “How are you doing?  Just
hang in there.”  Chief Egan indicated that he made a time line of events, but
kept no notes of meetings and briefings.  On the 11^th, he indicated
that Inspector Dwyer briefed him one or two times “to give me an overview”.  “The
information conveyed to me was informational.”

[129]  It was the
understanding of Chief Egan that Constable Dukeshire gave a verbal report on
July 11:  “Some sort of verbal statement to Sergeant Melville.”  Chief
Egan was asked whether in a homicide case the inevitable practice would be to
arrest and give a warning, and he stated:  “General practice but not
invariable.”

[130]  At Trial,
Chief Egan stated that he expressed his condolences to Ms. Camaso, advised
her that there would be a “full and impartial investigation”, and indicated to
her “from preliminary investigations” that Mr. Camaso had attacked
Constable Dukeshire and “the officer fearing for his safety had reacted”.

(A)     Separation of the Three Constables

[131]  When taken
back to Headquarters, the three Constables were not separated and they did not
give statements immediately.  At Trial, Chief Egan agreed that the separation
of witnesses as soon as possible and witnesses being spoken to as soon as
possible was a “fundamental principle” so that their testimony “should not be
tainted” by what they read in the press or by what others say.

[132]  Mark
Horsley was qualified as an expert entitled to give an opinion on all matters
relating to the use of force by British Columbia municipal police officers in
the performance of their duties.  Under cross-examination, Sergeant Horsley
agreed the witnesses should be separated and statements obtained from them
before they have had any chance to have their statements tainted by discussion
between them:  “I would agree that that’s the goal of any investigation.  And
not always practical but that would be the goal.”

[133]  At Trial, Acting
Corporal Olsen was asked the following questions and gave the following answers:

Q         And your knowledge of investigative techniques
was such that you would expect any witnesses to the shooting to be separated
and immediately questioned, correct?

A          Separated and questioned, yes.

Q         Separated and questioned before they had an
opportunity to have their evidence tainted by outside sources, right?  That’s
standard fundamental police investigative practice?

A          Yes.

(B)     Preparation of Detailed Notes

[134]  The three
Constables were not asked to prepare notes of what had occurred and did not do
so.  At Trial, Chief Egan confirmed that officers should take detailed notes of
what they were involved in, that those notes should be retained, and that the
notes should be “discharged”.

[135]  The
“Policy and Procedures Manual” of the Saanich Police Department under the
heading “Patrol Supervision” provides that:

Upon the conclusion of this incident, the Patrol NCO will:

a.      review the incident
with both sworn members and civilian staff,

b.      ensure that the correct
policy and procedures were followed,

c.      make referrals, if
necessary, in cases where emotional trauma is evidence,

d.      submit reports with
evaluations, recommendations and conclusions.

(C)     Nature of the Investigation

[136]  Regarding whether
the investigation of the circumstances of the death of Mr. Camaso would
have been done differently if the person firing the gun had been a civilian,
Chief Egan stated at Trial:  “I don’t think completely different, but I think
there may have been differences.”  He confirmed there would be the following
differences:  (a) the man holding the gun would have been taken into
custody; (b) the man would have been provided the “standard Charter
and warning”, and then attempted to elicit a statement from him”; (c) any
police officers in the immediate vicinity who had seen the events would have
been asked to provide “statements, possibly verbal, possibly written”;
(d) there would not have been a delay for “a few days” before the person
who fired the shot and two officer witnesses were contacted:  “Though I don’t
know if it would never have happened, I’m thinking of various nuances and
circumstances, but I would say that it would be treated differently, yes,
in that regard”; (e) there would be an immediate identification of
witnesses; and (f) the witnesses would be separated and questions asked of
them.

(D)     Supervisors Taking Control

[137]  Regarding
the investigation, Chief Egan was asked the following question and gave the
following answer at Trial:

Q:        Certainly anyone intending to conduct a
thorough investigation of the issue of supervision could have sat those
individuals down in the interview room that was at the department headquarters
and available and taken a recorded statement from them answering those types of
questions, right?

A:         I suppose they
could have.

[138]  Regarding
whether supervisors “should take control and give directions with respect to
serious matters occurring in the field”, Chief Egan stated at Trial:  “I’m not
familiar with the actual policy, but I would imagine that that would be a
general understanding and a general expectation for supervisors that they
should be available to take command of serious situations.  Chief Egan was
referred to the following under the heading “Procedures” in the Saanich Police
Department Policy manual and confirmed that the following was in effect in
July 2004:

When a serious incident occurs,
the patrol NCO will … immediately take control of the situation, coordinate
activities, guide and direct the activities of assigned personnel, ensure
duties are being carried out according to law, policy and procedures, notify
the watch commander … arrange for notification of other Divisions and
agencies.

[139]  In
response, Chief Egan was asked the following questions and gave the following
answers:

A          Well, this policy, like the first policy,
provides an overall intent and guideline. There are circumstances which may not
permit that to be the case. So I would agree that there is an expectation
of that, but there are conditions that may not permit that. For example, the
day shift supervisor may be in court where he could hardly — or they could
hardly complete that monitoring and respond.

Q         Some NCO on a daily basis has to be always
monitoring what the officers are doing through listening to the radio
broadcasts as they’re coming over the intercom in the office or over their
personal radios or over their car radios, correct?

A          It’s a general
supervision, it is not a close monitoring.

[140]  Sergeant
Horsley provided the following opinion regarding the question of supervision:

The best practice for pursuits that last long enough for
these actions would be for a supervisor to direct the pursuit by requesting
potentially required resources, which in case like this include a dog, less
lethal operators, equipment, and resources such as an ambulance.

It is often most effective if the
supervisor monitors and directs the pursuit by radio, allowing the supervisor
to focus on the overall event and use the benefit of their experience and
training to influence the most successful outcome.

[141]  At her
Discovery, Constable McNeil was asked whether this was a rapidly evolving
situation that might require intervention and need help from the supervisor,
and she stated:

At that point, I had no –
there is no time to think.  You’re running; your mind is going in a million
different directions.  I could hear Constable Dukeshire yelling and my
utmost priority at that point was concern for him because I didn’t know
what he was dealing with that was out of my sight that he’s yelling at.

[142]  Sergeant
Horsley, in his opinion, stated:

The best practice for pursuits
that last long enough for these actions would be for a supervisor to direct the
pursuit by requesting potentially required resources, which in case like this
include a dog, less lethal operators, equipment, and resources such as an
ambulance.  It is often most effective if the supervisor monitors and directs the
pursuit by radio, allowing the supervisor to focus on the overall event and use
the benefit of their experience and training to influence the most successful
outcome.

[143]  Constable
Murphy at Trial confirmed that she considered the situation to be a “high risk
situation” and she confirmed that it would ordinarily be a situation where a
call to the supervisor would be made but she stated:  “I didn’t personally.”
Inspector Dwyer confirmed at Trial that none of the three requested a
supervisor.

(E)      Application of Handcuffs

[144]  In his
opinion, Sergeant Horsley was asked regarding the application of handcuffs and
he stated:

I can make that very clear,
I would teach that it would be a tactical mistake to have a pistol drawn
and attempt to put handcuffs on with the pistol drawn.”  “I would agree that it
would be very difficult to handcuff a noncompliant person with one hand, but it’s
possible to handcuff a compliant person with one hand.  Still, I would not
recommend a police officer attempting to handcuff with their pistol drawn.

[145]  Sergeant
Horsley confirmed that if Mr. Camaso was on the ground, it would have been
a tactical mistake for Constable Dukeshire to approach him with his gun out.
He confirmed that the “primary officer” should wait until the secondary
officers arrive to put the handcuffs on.

(F)      Separation of Officers

[146]  On the
question of whether officers should stay together, Sergeant Horsley stated in
his opinion:

… it is generally not
recommended that police officers split up in foot pursuits”.  There can be exceptions
to that that work out quite well “where somebody has a knowledge of where the
suspect’s going or knowledge of the area and decides to take a different route
to there, but generally speaking, you know, in most cases one officer is going
to have more foot speed … in a foot pursuit and they will on the basis of
that become the primary officer, and the officer that’s following and trying to
keep them in view can assist with other resources by describing where they’re
going. …

THE JULY 12, 2004 PRESS RELEASE

[147]  On Monday,
July 12, 2004, a press release was prepared by the Department stating that
the Detective Division “have conducted the preliminary stages of their
investigation”, and that the investigation was completed at the family
residence and the scene at the school.  The call to 9-1-1 was described as Ms. Camaso
stating:  “that her husband was out of control and that it was a medical
emergency”.  The Press Release then set out the following:

The male fled on foot prior to the police officers being able
to speak with him about the safety and location of his wife, the fire in his
apartment, the 9-1-1 call, and his own well-being.  A brief foot pursuit
occurred in which the officers accompanied by ambulance personnel left the
grounds of the apartment complex and entered the property of Richmond
Elementary School.

Both Police and Ambulance personnel were attempting to
communicate with the male to determine what the nature of his medical problem
was.

At this time, our investigation
reveals that the male went to the rear of his car which had been previously
parked in the rear parking lot of the school.  He removed a 24 inch steel pipe,
and a 15 inch iron crow bar from the trunk of the car.  With both items in his
upraised arms and from a distance of less than fifty feet, he charged towards
the police officers and ambulance members in a rapid, combative and threatening
manner.  The police officers began shouting verbal commands at the male to drop
the weapons he was brandishing.  The officers made numerous verbal commands at
the male and had drawn their service firearms as a result of being fearful for
their own safety and the safety of others.  After ignoring numerous verbal
attempts to gain compliance, the suspect charged directly at Cst. Kris
Dukeshire still brandishing both weapons.  Cst. Dukeshire attempted to retreat
from the male and gain distance to protect himself and the other members
present however was forced to discharge his firearm when the male failed to
stop.  Cst. Dukeshire fired one shot at the male however the male did not
stop.  Cst. Dukeshire retreated and fired a second shot but the male still
did not stop.  After retreating yet again Cst. Dukeshire fired a third
shot and the male fell to the ground.  A total of three shots were fired.  The
male was struck three times in the upper chest area.  The other two officers
present did not discharge their firearms.  Immediately after the threat had
been removed, ambulance and police personnel rendered aid to the male.  He was
transported to Royal Jubilee Hospital where he was pronounced dead at
9:57 am.

[148]  There were
a number of factual errors and misleading statements in the Press Release:  (a) it
was not correct to say that the officers and ambulance personnel entered the “property
of Richmond Elementary School”; (b) the statement “Police officers began
shouting verbal commands at the male …” is incorrect as it was only Constable
Dukeshire and not “officers” who was shouting verbal comments; (c) the
statement “The officers made numerous verbal commands at the male, and had
drawn their service firearms as a result of being fearful for their own safety
and the safety of others”, is incorrect in that it was only Constable Dukeshire
who “make numerous verbal commands” and it was only Constable Dukeshire who it
can be said drew his firearm “as a result of being fearful for “his” own safety
and the safety of others”; (d) while Constable Dukeshire may well have
been “fearful for … the safety of others”, it is clear that Constable
Dukeshire did not know where Mr. Morris, Constable McNeil and Constable
Murphy were located; (e) while Constable Dukeshire was attempting to
retreat and gain distance to protect himself, it was not correct to state that
he was also attempting to protect “the other members present” as they were not “present”
or, alternatively, were not known by Constable Dukeshire to be “present”;
(f) the statement that Mr. Camaso “charged toward the police officers
and ambulance members in a rapid, combative and threatening manner” is incorrect
as Mr. Camaso only moved towards Constable Dukeshire and not towards the
other two Constables or any of the ambulance attendants; (g) the statement
that Constable Dukeshire fired one shot at Mr. Camaso, then retreated and
fired a second shot ,and then retreated before firing the third shot is other
than in accordance with the statements given by some witnesses and the
testimony of Constable Dukeshire who did not state that he was retreating
between the first and second and second and third shots; (h) there is no
indication in the testimony of Constable Dukeshire that he fired two shots and
only fired a third shot “after retreating yet again”; (i) while the other
two Constables were in the general area, it is misleading to suggest that they
were “present”, but did not discharge their firearms; (j) the statement
that Mr. Camaso was struck three times in the upper chest area may be
inaccurate as one of the wounds of Mr. Camaso was to his hand;  (k) while
it is indicated that the “preliminary stages of their investigation” has been
undertaken, it is not indicated that this preliminary investigation involved no
formal interviews or written statements given by the three Constables involved;
(l) while it is stated that both Police and Ambulance personnel had attempted
to communicate with Mr. Camaso, the phrase is potentially misleading as it
was only Constable Dukeshire, Mr. Carlson and Mr. Morris that had any
direct communication with Mr. Camaso.  It would have been more accurate to
state that one police officer and two ambulance personnel were attempting to
communicate with Mr. Camaso; and (m) no mention is made of the fact
that Mr. Camaso came out from behind the vehicle with one “weapon”
initially and then went back behind the vehicle and came out with nothing in
his hands and was initially compliant with the commands made by Constable
Dukeshire.

[149]  The Press
Release concluded:

At this point, we are confident
that the level of force that unfortunately had to be used in this incident was
appropriate; however as we have previously stated our investigation and
subsequent external reviews will include an examination of the policies and
procedures regarding the use of force continuum.

[150]  That is an
extraordinary conclusion to be included in the Press Release in view of the fact
that Constable Dukeshire and the other two Constables had not been formally
interviewed and statements provided.

[151]  The Press
Release was provided to the media at a press conference on July 12, 2004
at 3:00 p.m.  Regarding the Press Conference, Chief Egan confirmed that he
was there, that he made a few comments expressing sympathy for the tragic
events, and that Constable Horsley then read the contents of the Press Release.
Constable Horsley stated at Trial:  “What I said was based on what
Constable Charlton got from investigating officers and I don’t know what
other sources.”  Constable Horsley indicated that it was his understanding that
what was in the Press Release “was supported by lay witnesses and forensic
evidence, and would be supported by other witnesses”.  At Trial, Chief Egan
stated that he was:

… under the impression that
Constable Dukeshire had in fact given a preliminary statement”.  “I have some
recollection that Constable Dukeshire had offered a preliminary, verbal
statement.  I have no recollection whether or not Tara [McNeil] or
Kathleen [Murphy] had, in fact, given a statement.

[152]  When asked
at Trial whether it was early to reach the conclusion that “the officer was
acting in self defence”, Chief Egan stated:  “Well, it was a preliminary conclusion,
which is why we went at length to explain that there would be further
investigation.”  “I think the message was crafted to show that on the basis of
the information we had, it would appear that the officer was acting in
self-defence.”

[153]  At Trial,
Inspector Dwyer was not prepared to agree that the issuance of the Press
Release was a “fundamental breach of proper police investigative process
because you were knowingly tainting and compromising the accounts that those
three people [the three constables] might offer”.  Inspector Dwyer confirmed
that Chief Egan had forwarded an internal email on July 14 with stated:  “The
article in Tuesday morning’s T-C [Times Colonist] and as reported on other
media outlets was a fair representation of our press release.”  While it may
have been a fair representation of what was set out in the Press Release,
neither the Press Release nor the reports in the Times Colonist were accurate.

TIMES COLONIST ARTICLES

[154]  The
Monday, July 12, 2004 edition of the Times Colonist had a front page
article under the large heading “POLICE KILL MAN IN SCHOOLYARD”.  That
article included the following:  (a) a quote from a witness who did not
want to be named, stating:  “I saw the cop yell at him to go down on the ground
and I saw him go halfway down and then as he was about halfway down to the
ground I heard two shots fired”; (b) quoting Constable Horsley as
stating:  “ ‘Clearly an altercation took place which resulted in the police
officer actually drawing his weapon.’ … ‘Then something further took place’
which led to the officer firing the gun”; (c) stating:  “Police refused
further comment, saying they did not wish to taint the evidence or testimony of
any witnesses.”; (d) quoted a person as stating:  “(The officer) said ‘Stop,
stop, lie down’ “ and:  “Then they went out of my sight and I heard crack,
crack, or whatever it was.  The next thing I seen somebody laying out in
the grass.”; (e) “Witnesses said they heard up to three shots …”;
(f) “Several witnesses said they did not see any evidence the man had a
weapon and police would not say whether he was armed or not, but [Constable]
Horsley said that at the time of the shooting, no other force options existed.”
“ ’We have Tasers on the road with the supervisor’ ” Horsley said.  A
supervisor with a Taser was on the way, but had not made it to the scene at the
time of the shooting.”; (g) a witness was quoted as saying:  “Immediately
after that (there were) three shots at least, in rapid succession, like pop,
pop, pop”.  “I walked over here very quickly and saw a police officer crossing
the field, cutting north, and saw a person on the ground who had been shot.”  There
was no evidence regarding the source of the quote noted in the July 12,
2004 edition other than Constable Horsley, and it is not clear who Constable
Horsley had spoken to in order to obtain the information that he is quoted as
having provided to the reporter.

[155]  In a
Tuesday, July 13, 2004 front page article in the Times Colonist under a
heading in large print stating “OFFICER FEARED FOR HIS LIFE”, the
following was contained:  (a) “It started with a call for medical help,
and ended with a 33-year-old father dead, shot three times by a police officer
who feared for his life as the distraught man rushed toward him with a crowbar
and steel pipe …”; (b) “Witnesses to the shooting included paramedics
… and two other police officers who also had service revolvers drawn on
[Mr.] Camaso.”; (c) “Saanich police revealed details of the shooting
at a media briefing Monday and defended the lethal level of force used.
[Constable] Dukeshire, with the Saanich Police since April, believed his life
was in danger and that no other options were open to him, Const. Chris Horsley
said.”; (d) “An upset woman called 911 and said her husband was out of
control and needed medical attention, Horsley said.  Neighbours have said the
man’s wife had just left him, and he was distraught.”; (e) “Saanich police
called the number.  A woman answered, but didn’t talk.  They could hear a young
child crying in the background.  A male voice came on the line, Horsley said,
asking what police wanted and then hung up the phone.”; (f) “The man ran
to the back of a white Mazda 626 parked at the school, and rummaged in the
trunk.  As he did this, the three police officers – Dukeshire, Const. Tara
McNeil and Const. Kathleen Murphy – drew their guns, [Constable] Horsley said.
He said [Mr.] Camaso came out with a two-foot crowbar steel pipe and 15‑inch
crowbar.”; (g) “Constable Horsley was quoted as stating:  With both items
in his upraised arms and from a distance of less than 50 feet, he charged
towards the police officers and ambulance members in a rapid, combative and
threatening manner.”; (h) “The officers all had their guns drawn.”; (i) Constable
Horsley is quoted as stating:  “The suspect charged directly at
Const. Dukeshire, still brandishing both weapons.”; (j) “[Constable]
Dukeshire tried to retreat and gain distance to protect himself and the other
officers, but the man didn’t stop.”; (k) “Both [Constable] Dukeshire and
one of the two female officers with him yelled commands at [Mr.] Camaso.”;
(l) “[Constable] Dukeshire fired three times, and all three bullets hit
[Mr.] Camaso in the upper chest.”; (m) Constable Horsley is further
quoted as stating:  “(Camaso) may have been as close as one metre when Const.
Dukeshire fired.  He waited and tried to give as much of the benefit of the
doubt to this individual.”; (n) “Some witnesses are questioning why police
couldn’t stop the man when he went to the back of the car and rummaged in the
trunk, and question how much of a threat a man with two crowbars could have
been to three armed police officers.”; (o) “[Constable] Horsley said the
man didn’t stop when given repeated chances to do so, and that these charged
situations demand split-second decisions.”; (p) “The officers were not
equipped with a Taser, although one was en route with a supervisor.”; (q) “Even
if a Taser had been on site, it wasn’t the appropriate use of force needed for
the situation, Horsley said.  As well, the Taser has a 10 to 14 per cent
failure rate, is best in a contained area as opposed to a school field, and
must be deployed from within two metres.”

[156]  There are
a number of inaccuracies in the two articles:  (a) an “altercation” had
not taken place which resulted in Constable Dukeshire drawing his weapon;
(b) while it is said that Constable Dukeshire “feared for his life”, there
was no statement to that effect from him; (c) Mr. Camaso may not have
been shot three times in the chest; (d) the “witnesses to the shooting”
included one paramedic, not “paramedics”; (e) two other police officers
did not have their service revolvers “drawn on Mr. Camaso”; (f) it is
not correct to say that Ms. Camaso “had just left” Mr. Camaso as those
words are ordinarily meant; (g) the three Constables did not draw their
guns while Mr. Camaso “rummaged in the trunk”; (h) Mr. Camaso
did not charge towards the “police officers and ambulance members”; rather, he
was only “charging” towards Constable Dukeshire; (i) the three Constables
did not have their guns drawn; (j) Constable Dukeshire was not trying to
protect himself “and the other officers”; and (j) “one of the two female
officers” with Constable Dukeshire did not yell commands at Mr. Camaso.

[157]  While it
is said in the July 12, 2004 article that “further comment” was being
withheld because the police “did not wish to taint the evidence or testimony of
any witnesses”, the only witnesses that had not been interviewed at that point
were the three Constables. Accordingly, each of them would have the opportunity
to read the reports set out in the Times Colonist and to have their ultimate
statements and later testimony influenced by what had been set out by Constable
Horsley and others in those articles.

ACTIONS OF THE THREE CONSTABLES AFTER THE DEATH OF
MR. CAMASO

[158]  A number
of civilian witnesses, as well as Mr. Morris, were interviewed on
July 11 and signed statements were obtained from them.  Inexplicably,
Constables Dukeshire, McNeil and Murphy were not isolated and did not give
statements that day.  They gave their statements days later after they had a
chance to speak with colleagues, read the articles in the Times Colonist,
listen to radio coverage, listen to and watch television coverage, and discuss
the matter with friends, relatives and, in the case of Constable Dukeshire,
legal counsel.  Despite the practice and policy outlined by Chief Egan and
others at Trial, the three Constables were not immediately separated and
statements taken.  In their submissions after all testimony had concluded,
Chief Egan, Saanich, and Constables Dukeshire, McNeil and Murphy “… concede
that certainly would have been preferable to have the three officers
interviewed on July 11, 2004”; “These defendants are prepared to concede
that it was an error not to at least interview them briefly, perhaps
preparatory to a more structured interview several days later.”  However, it
was not conceded that their testimony would have changed if immediate
interviews had been undertaken.

(a)      Constable Murphy

[159]  On the
drive back to Headquarters, Constable Murphy and Constable McNeil were alone.
My notes indicate that Constable Murphy testified:  “I don’t think we had a
conversation”.  At her videotaped statement given on July 16, 2004,
Constable Murphy indicated that she and Constable McNeil “came back [to
Headquarters] and spoke to several people”.  Once back at Headquarters,
Constable Murphy was stopped by Acting Staff Sergeant Kerr who asked her “to be
with McNeil” “take her for coffee”.  I record Constable Murphy as stating:
“I had mixed emotions – not sure why I was looking after McNeil – like
they didn’t know what happened.”

[160]  Constables
Murphy and McNeil went to the local Tim Horton’s.  My notes indicate that
Constable Murphy testified as follows regarding what occurred at Tim Horton’s:
“No recollection of conversation – no significant conversation – just shaking
our heads”.  “Don’t know how long there.”  “Can’t recall conversation.”  “I don’t
recall any conversation between us.”  When Constable Murphy was asked whether
she asked Constable McNeil where she was and what she saw, she stated:  “I don’t
think so”.  When Constable Murphy was asked whether Constable McNeil told her
what she had seen, she stated:  “Not that I recall”.  When asked whether
the subject of making notes came up, she stated:  “Not that I remember”.

[161]  While
Constable Murphy appears to have a distinct recollection of what happened
leading up to the shooting of Mr. Camaso, she testified that she had no
recollection of later conversations.  No expert testimony was provided which
would explain this juxtaposition of clarity and vagueness.  I find
Constable Murphy to be otherwise than forthright about whether she has a
recollection of what occurred after the shooting but before she left
Headquarters that day.  This lack of present recollection is the very reason
why Constable Murphy should have been immediately segregated from Constable
McNeil and why statements should have been taken from Constable Murphy regarding
the events leadings up to the shooting of Mr. Camaso.

[162]  Constable
Murphy stated that they were then “called back” from Tim Horton’s and “told to
change and go home”.  In her videotaped statement, Constable Murphy stated
that, when she came back from having coffee with Constable McNeil, she spoke to
Sergeants Fraser and Mayo. She also stated:  “I can’t remember, I don’t
know if we hung around for a little bit, I just went home at that point.”  I find
the Constable Murphy left Headquarters “before noon”.  Accordingly, there was
approximately two hours when Constable Murphy was available to provide a
statement not in any way affected by the extensive media coverage and by the views
and recollections of others.  It is simply not believable that Constable Murphy
did not speak to anyone about what had occurred during the time prior to her
leaving Headquarters.

[163]  Constable
Murphy testified that she changed into her regular clothes and, when exiting Headquarters,
she saw Constable Dukeshire and Constable McNeil, that “we stood there for a
couple of seconds” but recalled that there was no conversation between them.  When
asked who Constable Dukeshire was with, she responded at her Discovery:  “You
would have to ask him.”  A less antagonistic answer would have been more
appropriate.  When pressed on this point, Constable Murphy stated:  “I don’t
recall.”

[164]  At her Discovery,
Constable Murphy was asked when she was told to come back to work, and she
stated:  “When I felt ready.”  At Trial, Constable Murphy was asked whether
she had spoken to Constable Horsley so that he could obtain information from
her and she stated:  “I didn’t see Horsley at any time.”  “Not speak with him
that week at all.”

[165]  Constable
Murphy confirmed that there was nothing in her notebook regarding the events of
July 14.  At her Discovery, Constable Murphy confirmed that she had been
taught in her training to take notes contemporaneously “if possible”, and that
there was no time to take notes at the scene.  She was asked why making notes
was so important, and she stated:  “To refresh memory.”  “Jog my memory.” and “Sometimes
to refer to notes in Court.”  She was asked whether we was taught to take notes
contemporaneously, and she stated:  “If possible.”  When asked whether that was
“on every shift”, she confirmed that it was.  When asked whether there was a
policy regarding keeping notes, she stated:  “I couldn’t say for sure there is.
I am assuming there is.”  She confirmed that she kept her notes locked in
her locker.  When asked how long constables are required to keep their notes,
she responded:  “Throughout your career.”  She agreed that it was her
invariable practice to keep detailed notes regarding significant events.  She confirmed
that this was a “significant event”.  I record Constable Murphy as stating
she was advised that:  “My statement would constitute my notes.”  “I was new
and I was not sure what to do with it.”

[166]  Constable
Murphy admitted that, when she was at home, she had a number of telephone
conversations with colleagues and that she was “glued to the TV”.  She stated
that she had a conversation with Constable McNeil:  “We spoke on the phone but
only about how we were doing” and but had no discussion with Constable
Dukeshire.  At her Discovery, Constable Murphy was asked who she had spoken to
between July 11 and July 16, 2004, and she stated:

I received a telephone call from
… Staff Sergeant Parker, I believe I spoke with Sergeant Newman.  I believe
I spoke with Constable Darryl Underwood, Constable Tracy Walt, Sergeant
Mike Irwin, Sergeant Fraser, Constable McNeil, and I can’t remember if
there was anybody else.

[167]  Constable
Murphy was also asked about whether she had spoken with Chief Egan and stated:
“I did.  I don’t know, though, whether it was between the dates of the 11^th
and the 16^th, or whether it was after that, but I do remember
sitting in his office with him.”  When asked whether she had any meetings with
Inspector Dwyer between the 11^th and the 16^th, Constable
Murphy stated:  “I may have.  I don’t remember.”

[168]  Initially,
Constable Murphy was to provide a written statement on July 14, 2004,
three days after the incident, but it was then rescheduled to be given on
July 16:  “I had no control over when it would take place.”  At her Discovery,
Constable Murphy was asked about the general policy of giving statements, and
was asked the following questions and gave the following answers:

Q         When members of the public are either involved
or are witnesses to any incident that involves a crime or an incident where the
police are called, they’re usually asked to give a statement; is that correct?

A          Correct.

Q         And they’re usually asked to give a statement
as soon as possible; is that correct?

A          As soon as they
can.

[169]  Why it was
important for Constable Murphy and the other two Constables to give statements
as soon as possible after the incident is perhaps best illustrated by a
question and answer given by Constable Murphy at her Discovery relating to what
she had said in July 16, 2004 statement.  After being asked what Mr. Camaso
had been doing after she heard the shots, she was asked the following question
and gave the following answer:

Q         And when you say, “I don’t know if I can
say for sure because I’ve heard so much about what he was doing,” who would you
heard so much about that he was doing from?

A          The general
public, the television, the radio, the newspapers.

(b)      Constable McNeil

[170]  At her Discovery,
Constable McNeil was asked what happened when she got back to Headquarters:  “I
called my family and then … I think then Constable Murphy was instructed
to take me for a coffee or something.”  When asked whether there was any “debriefing”,
Constable McNeil stated:  “We had the – I can’t remember now what there
actually referred to.  Our trauma team basically, I guess, is what they’re
called, come and just touched base with us and talked to us, and then we were
told to go home and we would be contacted.”  Constable McNeil was also asked
the following questions and gave the following answers:

Q         Did anyone ask you to provide a statement that
day?

A          No.

Q         And at what point did you get asked to come in
for a statement?

A          I don’t recall
when I was called and asked to come in, but I know that I went
in a few days later.  I don’t remember when I was actually called.

[171]  Constable
McNeil changed and then went home.  I record her as stating as she drove
home, “I don’t remember anything”.  She later spoke to Police Dispatch, “I
wanted to get a printout of what they had typed”.  “Took that in my notebook.”
“Made the notes the next day.”  She stated that she did not consult with anyone
else and was not told by anyone to prepare the notes.  “Knew I would be
providing a statement – not know when.”

[172]  Constable
McNeil confirmed that her July 14 statement was videotaped.  When asked
whether she discussed what she would say with anyone beforehand, she stated:  “I
don’t recall discussing this with anyone.”  When asked whether she discussed it
with Constable Dukeshire, she stated:  “I don’t recall.”  Again, the ability to
recall what occurred up to the time of the shooting but not afterwards is
inexplicable.  At her Discovery, Constable McNeil was asked whether she had
seen Constable Dukeshire and she answered:  “I don’t remember for sure if
I saw him or if it was just that they told me that he had come in to
provide his statement.”  Constable McNeil confirmed that she did not read the
Times Colonist but did watch the television news coverage.  The interview of
Constable McNeil on July 14, 2004 also left much to be desired.

[173]  While
there were extensive questions regarding the incident during her interview,
there were no questions regarding what had occurred after the shooting.  On the
day of her interview, there was no request made that Constable McNeil re-enact
what had occurred as the questioner stated:

I want you to know this is not
going to be a re-enactment because at this point in time I don’t think a
re-enactment would be good.  Um, it’s, it is tough on you.  And, and when you
go back to that, when we go back out there, you gonna get more of a flood of
how it felt and, and that’s what makes you feel [indecipherable] so you may
feel like you want to cry or it might upset you a bit.  But if you feel
uncomfortable with giving it a try um, what would we’d do is just may go out
and walk um, you know, we got the call and came here first and so we know where
that was and then you guys, which direction you went to and then seen it.

(c)      Constable Dukeshire

[174]  At Trial,
Constable Dukeshire indicated that he was driven back to Headquarters by Acting
Sergeant Naydiuk.  He was asked whether he had any recollection of what took
place during that drive and he stated:  “Not details of any conversation, no.”
“I recall some conversation with her, but not what was said.”  At Headquarters,
he believed that Constable Mayo was there as part of the “peer support team”.
He recalls being asked whether he wanted to stay in his uniform or get into his
civilian clothes.  He changed into his civilian clothes.  He recalls being
given the opportunity to call his family (his parents) from the deputy chief’s
office and that he did so:  “I remember being told that it would be in the
media at noon so my parents might appreciate just – just knowing that this is
coming.”

[175]  He was
asked to confirm whether he had spoken to Constable Chris Horsley on
July 11 and Constable Dukeshire stated:  “I don’t recall, no.”  “While
I can’t – that’s what I say, I don’t recall having a
conversation with him.”  Again, there was no explanation given as to why
Constable Dukeshire would have distinct memories about what occurred prior to
the shooting of Mr. Camaso but virtually no recollection of conversations
afterwards.

[176]  Constable
Dukeshire did not know where the information was obtained for what Constable
Horsley stated at the Press Conference and what was stated in the Press Release.

[177]  Constable
Dukeshire was joined at Headquarters by his brother.  His brother is also an
officer at the Saanich Police Department.  Ultimately, Constable Dukeshire was
driven to his parents’ home by his brother.

[178]  He was
asked at his Discovery to go over what happened in the days following
July 11, and he responded:  “I had been referred to Dennis Murray
[barrister and solicitor]”.  Constable Dukeshire met with Dennis Murray on
July 12, 2004 before providing a statement as to what had occurred leading
up to the death of Mr. Camaso.  As to what happened after July 11,
Constable Dukeshire stated at his Discovery:  “I just recall the Department
taking care of me and being in constant touch with me as to what will be coming
and what I required, but I can’t recall.”  When asked what he meant
by the term “constant touch” and whether people were phoning him, Constable
Dukeshire responded:  “Yes, and seeing me in person.”  It is not possible for
me to find that Constable Dukeshire did not have discussions with a number of
people prior to giving his videotaped statement.  His brother is a senior
officer in the Saanich Police Department.  His father is a retired police
officer.  It is simply not believable that he would not have discussed with
them the details of what had occurred leading up to the death of
Mr. Camaso.

[179]  Under
cross-examination, Constable Dukeshire was asked whether he had read the July
12 and 13, 2004 articles from the Victoria Times Colonist, and he stated:
“I believe I had.  I recall – I don’t recall reading them.  I find
them hurtful.”  Constable Dukeshire stated:  “As I say, I have memory
of seeing these articles.  I don’t recall reading them.  Like I say,
I did find them hurtful.  I did not make a point to seek them out or
read them as I – still to this day.”  Constable Dukeshire cannot be
believed in this regard.  To say that he saw the articles but cannot recall
whether he read them or not is simply beyond belief.

[180]  Constable
Dukeshire was trained to be observant.  He was trained to take notes of what he
observed and was trained to make notes as soon as possible so that what he
observed was fresh in his mind.  With that training, the testimony of Constable
Dukeshire that he has no recollection of conversations and he has no
recollection of whether he did or did not read articles in the Times
Colonist is simply not believable.

[181]  The
failure of the Saanich Police Department to require Constable Dukeshire to give
a statement as soon as possible after the shooting was inexcusable.
Accordingly, it is not possible to ascertain whether the statement that was
ultimately given presented an accurate picture of what had occurred.  I cannot
accept the evidence of Constable Dukeshire given at Trial that his interview
was not in any way influenced by what he had read in the newspaper.  I cannot
accept the evidence of Constable Dukeshire given at Trial that his videotaped
statement was not in any way influenced by the advice he had received from Mr. Murray
and the discussions that he had had with others.  I cannot accept the
evidence of Constable Dukeshire given at Trial that his videotaped statement
was not in any way influenced by what had been reported on television and in
the Times Colonist.

[182]  On
July 14, 2004, at 4:00 p.m., Inspector Dwyer met with Constable Dukeshire,
Sergeant Kelly Dukeshire and Constable Steve Morgan, the “association agent”.
Regarding that meeting, Constable Dukeshire was asked in cross-examination
whether his brother was assisting him with the handling of the professional
standards complaint process and he stated:  “I don’t believe so.  I can’t
recall what his role would have been.  I believe he was there as my
brother, for support.”

[183]  Constable
Dukeshire was questioned at Trial regarding the importance of taking notes, and
he agreed that “Notes can be important” “as an aid to the officer’s memory”.
He was asked whether he made any notes that day and he responded that he did
not.  Under cross-examination, Constable Dukeshire stated:  “I can’t recall on
my own volition writing notes on my own at home or on the computer or on paper
detailing what happened.”  As to whether he had made any notes in July 2004,
Constable Dukeshire stated:  “During that time of the investigation, I can’t
recall if I had or I had not.”  He confirmed that the made no entries
in his notebook regarding the Camaso incident.

[184]  On the question
of whether he should be making notes, Constable Dukeshire was asked the
following questions and gave the following answers:

Q         Now, the Winnipeg Police Academy taught you,
in addition to other things, the importance to a police officer of making
notes, correct?

A          That is correct.

Q         And I suggest it was drilled into you
that whenever you’re involved in any matter that could potentially result in
legal proceedings, you as a police officer should make detailed, accurate notes
of all pertinent aspects of the incident as soon as it is practical to do so,
would you agree?

A          I would agree when I am the
investigator. In this circumstance, I was not the investigator.

Q         But being a witness, wouldn’t you agree that
if you are a witness to a serious incident, your training was that you should
take and record all notes as – of your observations as soon as it was practical
to do so?

A          Not if I am the one being investigated.
We don’t ask our witnesses to provide notes if there’s civilian witnesses.
I might be missing your question, I’m sorry. But as the one being
investigated, no, I – there’s been no instruction that I would be the
ones – that I would be the one providing notes.

Generally in most circumstances
where you – and with – as an investigator, as a police officer, yes, notes are
very important to aid your memory in the investigation and the report writing
and the court.

Q         Correct. And they’re something you can refer
back to, to refresh your recollection because notes made contemporaneously tend
to be better than the frailties of memory, fair?

A          Fair.

Q         And you’re taught how to make notes, right?

A          Yes.

[185]  The excuse
given by Constable Dukeshire as to why had not made notes is not acceptable.
First, he was taught to take notes.  Second, he agreed that his recollection
might well be refreshed if notes were taken.  Third, whether or not he was the
one “being investigated”, there is no credible explanation as to why he would
not have taken notes in order that those notes would be subsequently available.
The failure to take notes was also other than in accordance with Department
Policy.

[186]  Constable
Dukeshire was asked whether he had provided an explanation about what had
happened to anyone “aside from possibly putting something in a Use of Force
Report”, and he testified under cross-examination:  “In detail only to my
lawyer at the time, Dennis Murray”.  He was also was asked the following
questions and gave the following answers:

Q         No one else?

A          In detail, no.

Q         Is that correct?

A          That is correct.

Q         You did not tell either your brother or your
father what had happened?

A          Not in detail.
My – my father, my brother, my mother knew that the shooting had happened and
what – but not in great detail, we did not go into it, no.

[187]  I find
that Constable Dukeshire was being intentionally vague when answering that he
had not had discussions “in detail”.  Unfortunately, counsel did not pursue Constable
Dukeshire for an explanation as to what that phrase meant.  In any event,
I am not prepared to accept the evidence of Constable Dukeshire that he
did not discuss the matter with his brother and with his father “in detail”
and, in this regard, I do not accept his evidence that he only went over “in
his head” what had happened in the four days between July 11, 2004 prior
to making his statement on July 14, 2004.

USE OF FORCE REPORT

[188]  I find
that the Department required officers to complete and sign a “Use of Force
Report”.  Regarding a Use of Force Report, Chief Egan made the following
statement:

Well, the – we we have a Use of
Force report which encompasses not only the discharge of firearm, but other
methods of use of force, and it’s – It’s not an everyday occurrence, but
certainly any time a use of force is applied then there – that is reported and
reviewed to determine whether or not that should be subject to further
investigation.  There is – there is a statutory obligation on the part of the
police department to report to the Director of Police Services on an annual
basis use of force.  There’s a statutory requirement under the Firearms Act
for police to report discharge of firearms.  We frequently in our municipality
see firearms discharged in the destruction of animals.

[189]  In a Use
of Force Report signed by Constable Murphy, Constable Murphy gave this
following “brief description of incident”:

Male subject of mental health
incident.  Male failed to comply with Cst. Dukeshire’s commands and
charged the officer with two weapons capable of causing grievous bodily
harm/death.  Cst. Dukeshire fired three shots which effectively ceased the
threat.  Cst. Murphy was with Cst. Dukeshire and had her gun drawn
from the holster.

[190]  I find
that these were not the words of Constable Murphy, that someone drafted this
Use of Force Report for her, and that some of what was set out in the Report
was not within her knowledge and was misleading.  Specifically, she could not
say that she was in “with” Constable Dukeshire.  In fact, I find that she
was approximately 200 feet away from him.  I accept her evidence that
she only drew her weapon after she heard three shots and, accordingly, it would
not have been possible for her to say that she “had her gun drawn” when she was
“with Constable Dukeshire”.  The signing of this Report by Constable Murphy
constituted an inexcusable variation from the policy that should have been or
was in effect regarding such reports.

[191]  Unfortunately,
Constable Murphy was not the only Constable that acted in this unacceptable way
when completing a Use of Force Report.  Constable McNeil also signed a Use of
Force Report.  It was in almost the same format as that which was signed by
Constable Murphy.  Constable McNeil did not recall signing the Report:  “No
recollection of seeing it or signing or completing it.”  What was signed by
Constable McNeil was inaccurate.  While Constable McNeil was in the general
area of Constable Dukeshire (she stated at Trial that she was 200 feet away
from him), it would not be possible for her to state that she was “with Cst.
Dukeshire”.

[192]  Regarding
the Use of Force Policy, Constable Dukeshire confirmed that the officer who is
obliged to use force is required to fill out such a Report.  Constable
Dukeshire thought that he had filled out the document shortly after the
incident.  There is nothing in evidence which would allow the conclusion that
he did anything other than sign the report that someone had completed for him.  I find
that the failure of Constable Dukeshire to prepare a Report is other than in
accordance with the Saanich Police Department “Use of Force Policy” and, in
particular, the “Reporting” section of that Policy.

[193]  It was not
acceptable for someone else to prepare the Use of Force Report which was
ultimately signed by the three Constables.  The failure of the three Constables
to complete a detailed Use of Force Report was not explained and is
inexcusable.

SUBSEQUENT REVIEWS OF WHAT OCCURRED ON
JULY 11, 2004

[194]  On
July 15, 2004, Chief Egan requested that the RCMP investigate a “public
trust complaint for the disciplinary default of Use Unnecessary Force, contrary
to s. 4(1)(f) of the Code of Professional Conduct Regulations of the Police
Act”.  The request was made pursuant to s. 55.1 of the Police Act.
The RCMP review was undertaken by Corporal Gord Gavin and Staff Sergeant Jack
Henzie of the Westshore Detachment of the RCMP and was reviewed by Inspector H.
Goodridge, District Operation Office of the Island District of the RCMP.  The
conclusion in the report was that the complaint by Ms. Camaso was “unsubstantiated
and that the use of deadly force in this incident was justified”.

[195]  On
August 3, 2004, Ms. Camaso lodged a public trust complaint with the
Police Complaint Commissioner.  In an August 12, 2004 letter to Ms. Camaso,
she was advised that, pursuant to s. 65(4) of the Police Act, the
discipline investigation in the matter would be suspended until the conclusion
of possible criminal proceedings.  The Police Complaint Commissioner provided
his report to Chief Egan on July 5, 2005, confirming the conclusion
reached by Chief Egan that:  “… there is no evidence to support a finding of
professional misconduct against Constable Kris Dukeshire …”.  The Police
Complaint Commissioner advised that he was not ordering a Public Hearing into
the matter, and that the matter was now “officially closed”.

[196]  On
September 27, 2004, Chief Egan amended the public trust complaint that had
been prepared within the Department to include a “Service and Policy Component”
as questions had arisen regarding the experience, training and supervision of
the officers involved.  On October 1, 2004, the Office of the Police
Complaint Commissioner confirmed the characterization of the complaints
received as a “Compound Complaint” which included both a public trust component
and a service and policy component.  On December 23, 2004, the RCMP
completed their external review and Police Act public trust
investigation.

[197]  On
January 18, 2005, the Saanich Police Board directed Chief Egan to conduct
an investigation into the service and policy component of the complaint.  A “Service
and Policy Review” was prepared by Inspector Dwyer and Sergeant Poulton for
Chief Egan and the Saanich Police Board.  That Review which was undertaken in
accordance with s. 61(1)(b) of the Police Act, was submitted on April 14,
2005 to Chief Egan, and was submitted to the Saanich Police Board on
April 25, 2005.  The Review covered most parts of the policies of the
Saanich Police Department.

[198]  The Review
concluded that there were no identified deficiencies within the Saanich Police
Department policies, procedures, guidelines, directives or business practices
that contributed to, or impacted upon, the response to or investigation of the
shooting of Mr. Camaso.  In all cases, the policies were said to provide:
“… adequate, appropriate, reasonable guidance, guidelines and direction”.  The
conclusions regarding the homicide policies of the Department recommended the
creation of a new policy specific to “Officer Involved Shootings” with the
following recommendation made:

That, a new policy be created
specific to “Officer Involved Shootings” that consolidates existing policy,
practice and procedure as they relate.  This policy would have guidelines to
cover areas such as investigative procedures, seizure of evidence, taking of
statements, right to counsel, use of the Trauma team, Workers Compensation,
external Use of Force review and additional allowances for Administrative leave
as required.

[199]  Regarding “general
training issues”, the recommendation was that the Saanich Police Department “…
continue to pursue additional training opportunities in the area of the
Emergency Mental Health Team and mental health issues as identified by the
Coroner’s Jury in their recommendation at the conclusion the inquest.

[200]  In an April 26,
2007 letter to Ms. Camaso as well as to the Police Complaint Commissioner
and the Director of Police Services, Mayor Frank Leonard, Chair of the Saanich
Police Board, forwarded a copy of the Service and Policy review that was
prepared for Chief Egan and the Saanich Police Department.  Mayor Leonard
stated in part:  “… the review did identify the need for a minor change in
one policy and recommends two additions to policy that will improve overall
policy clarity.

[201]  Constable
Wayne Unger of the Saanich Police Force was asked by Chief Egan to prepare a
Use of Force Report and did so on September 6, 2004.  Constable Unger
reached the following “conclusion”:  “The actions of Constable Kris DUKESHIRE
with this incident represent a reasonable escalation and de-escalation of force
based upon the actions of the subject.”

[202]  An autopsy
report dated July 13, 2004 was in evidence.  There is a notation that
there was “No soot or other gunshot residues are visible around these cloth defects.”
The autopsy notes the weight of Mr. Camaso at 155 lb. with clothing, and
that he was approximately 65 inches (5 feet 4 inches) in height.  The
autopsy report also dealt with the gunshot wounds which were found in the
chest, the left upper arm and the left little finger of Mr. Camaso.  The
direction of fire for the two chest wounds was described as being from front to
back, downward and slightly left to right.  The gunshot on the left upper arm was
described as being “from left to right, with minimal upward or front-to-back
deviation.  The gunshot wound of the left little finger was described as
being:  “With respect to the anatomical position, the direction of fire of this
gunshot wound is primarily from left to right.”

[203]  There was
also an inquest.  The following recommendations were made pursuant to pursuant
to s. 3(2)(d) of the Coroner’s Act, S.B.C. 2007, c. 15:
(a) “… that if the Emergency Mental Health Services pilot project
meets its objectives that it be expanded to a 24-hour, 7 day a week program to
service all police agencies within the jurisdiction of the Vancouver Island
Health Authority’s Health Region; (b) “formalization of communications
within Greater Victoria police jurisdictions, to include Municipal and RCMP in
order to ensure increased awareness of mental health issues and the services
and benefits provided by the Emergency Mental Health Services team.”; (c) a
“substantial increase to instruction component at the policy academy (J.I.) of
B.C. on awareness of mental health issues in policing, including available
tools and resources when responding to mental health calls.”; (d) that “every
municipal police recruit spend one shift during block 2 field training with
Emergency Mental Health Services Team, and that this opportunity be extended to
members of the Greater Victoria RCMP.”; (e) “that information regarding
mental health issues and policies be brought to police officers’ attention
during daily roll calls.”; and (f) “that all 911 operators and dispatchers be
oriented in the services provided by the Emergency Mental Health Services Team.”

[204]  There was
an obvious deficiency regarding the education provided to potential officers and
to officers about how to deal appropriately with individuals evidencing “mental
health issues”.  While it is encouraging to see that the Service and Policy
Review included recommendations regarding an “Emergency Mental Health Team”
within Saanich and a new policy specific to “Officer Involved Shootings”, it is
unfortunate that those policies and the knowledge of how to react to
individuals evidencing “mental health issues” were not in place prior to
July 11, 2004.

[205]  Through
her counsel, Ms. Camaso expressed the view that the review within the
Department and the review undertaken by the RCMP did not have the necessary
independence which would allow her to have confidence in the process or in the
conclusions reached.  While there may be sentiment within the community and
while Ms. Camaso may be of the view that the present review procedures are
inappropriate, I am satisfied that those review procedures were undertaken
in accordance with the current legislation and practices in effect.

[206]  However,
I am also satisfied that I am not bound by the conclusions reached by
those who undertook the reviews.  First, I must decide whether the actions of
the Defendants were appropriate or not.  Second, I have reached the conclusion
that many of the “facts” upon which these reviews were based are not findings
of fact that I can make on the evidence presented at Trial.

CLAIMS ADVANCED BY THE PLAINTIFFS

(A)     Claims against Mr. Morris

[207]  In their
Amended Statement of Claim, the Plaintiffs submit that Mr. Morris owed a
duty of care to Mr. Camaso to take reasonable care for his safety, and
that Mr. Morris breached this duty of care so that he is liable in
negligence to the Plaintiffs.  The Plaintiffs allege the following particulars
in that regard:  (a) failing to effectively communicate with Mr. Camaso;
(b) failing to remain a safe distance away from Mr. Camaso;
(c) failing to adequately communicate or at all with Constables Dukeshire,
McNeil and Murphy, and with Dispatch/911; (d) failing to instruct
Constables Dukeshire, McNeil and Murphy regarding the location and state of
mind of Mr. Camaso; (e) failing to adhere to established protocols
for dealing with similar situations; and (f) acting in wanton and reckless
disregard for the life of Mr. Camaso.

[208]  The
Plaintiffs submit that, after Mr. Morris was able to briefly assess that Mr. Camaso
had no apparent physical injury and was responding appropriately to his
questions, he was negligent in giving chase once Mr. Camaso had refused
treatment.  The Plaintiffs submit that Mr. Morris should only have briefed
Constable Dukeshire on his observations and assessment of Mr. Camaso so
that Constable Dukeshire had appropriate facts at his disposal to make a
reasoned assessment of the next steps that he should take regarding Mr. Camaso.

[209]  In
response, Mr. Morris and the Crown submits that paramedics such as Mr. Morris
owe a duty of care generally to take reasonable care for their patients’ safety
and to apply their skill and training to fulfill their employment duties, which
includes responding to calls, assessing patients, treating patients, and
transporting patients without undue delay to the nearest emergency health care
facility if that is required, but that Mr. Morris could no longer consider
Mr. Camaso to be his patient at the point when Mr. Camaso came out
from behind his vehicle holding the object that Mr. Morris first perceived
to be a gun.

[210]  There are
a number of Ambulance Service Policies which apply.  Under the heading “Occupational
Health and Safety” is the following “Policy”:  “Crew members are neither
expected nor required to take unnecessary personal risks when carrying out
their duties.” and the following “Procedure”:  “If the situation is considered
to be unsafe or presents a threat to the safety of patient or crew, the
paramedics at the scene (a) must contact the dispatch centre immediately, and “may
refuse the call unless the scene is made safe”.  The definition of a “Person
with a Mental Disorder” is given as being “a person who has a disorder of the
mind that requires treatment, and that seriously impairs their ability to react
appropriately to their environment or to associate with others”.

[211]  The “Emergency
Admission Procedures” under s. 28 of the Mental Health Act are
described as follows under the Ambulance Service Policy:

Under Section 28 of the Mental Health Act, the
police have the responsibility to convey a person with an apparent mental
disorder to a physician.  However, in cases such as those described in (a),
(b), and (c), below, when the police request BCAS to transport the patient, it
is BCAS policy that the patient must be accompanied by a police officer for
paramedic and patient safety. …

c)      If
BCAS crews at the scene have reason to believe that the person has a mental
disorder and is likely to endanger themselves or others, the crew will request
the police to respond and convey the patient to the appropriate facility under
Section 28 of the Mental Health Act.  The police may request BCAS to
transport the patient if circumstances dictate an ambulance is in the better
interest of the patient (e.g. elderly person).  …

In all cases involving patients
with a mental disorder, crews are to be sensitive to the needs of the patient.  Where
another agency has the responsibility for conveyance, there may be situations
where an ambulance and assistance of a BCAS crew may be more appropriate.  However,
under no circumstance are crews expected to place themselves in a dangerous or
potentially dangerous situation.  The services of a peace officer are to be
requested.

[212]  Mr. Morris
stated that the purpose of speaking to Mr. Camaso at the footbridge was to
try to keep him there until the police arrived to make sure he would be taken
for treatment at a hospital.  Mr. Morris considered that Mr. Camaso
was going to come voluntarily and that he still considered Mr. Camaso as
his patient at that point.  When Constable Dukeshire caught up to him, Mr. Morris
stated that his intention was to talk to Mr. Camaso and, if Mr. Camaso
was arrested under s. 28 of the Mental Health Act, to assist in
transporting Mr. Camaso to the hospital.

[213]  I find
that, as long as Mr. Morris kept Mr. Camaso in sight so that he could
direct the attention of the Constables to where Mr. Camaso was located,
there was no reason why Mr. Morris should have continued to run after Mr. Camaso.
I find that it was inappropriate for Mr. Morris to continue to run after Mr. Camaso.
I also find that Mr. Morris was in conflict with the policies and
procedures laid out by his employer when he continued to pursue Mr. Camaso.
In any event, when Constable Dukeshire caught up to Mr. Morris, there was
no further reason why Mr. Morris should continue to run after Mr. Camaso.
The motivation of Mr. Morris to show a particular officer where Mr. Camaso
was located had been met.  As I have found, there was no request made by
Constable Dukeshire to Mr. Morris to continue his pursuit of Mr. Camaso.

[214]  Even if it
was appropriate for Mr. Morris to continue to run after Mr. Camaso so
that he would be close to Mr. Camaso when Constable Dukeshire had the
responsibility to convey Mr. Camaso to a physician, I find that Mr. Morris
was required to remove himself from the scene once he felt his safety was at
risk.  That decision was made by Mr. Morris when Mr. Camaso came out
from behind his vehicle with what Mr. Morris believed might be a gun.

[215]  Mr. Morris
owed a duty of care to Mr. Camaso to take reasonable care for his safety.
The question which arises relating to the alleged negligence of Mr. Morris
is whether any alleged breach of the duty of care owed arose from a reasonably
foreseeable risk of harm to Mr. Camaso created by the actions or omissions
of Mr. Morris.

[216]  The issue
of foreseeability in relation to the existence of a duty of care was explored
in Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, where
McLachlin C.J. on behalf of the Court, stated:

Liability for negligence requires breach of a duty of care
arising from a reasonably foreseeable risk of harm to one person, created by
the act or omission of another: Jordan House Ltd. v. Menow, [1974]
S.C.R. 239, at p. 247, per Laskin J. (as he then was).  By enforcing
reasonable standards of conduct, so as to prevent the creation of reasonably
foreseeable risks of harm, tort law serves as a disincentive to risk-creating
behaviour: Stewart v. Pettie, [1995] 1 S.C.R. 131, at para. 50,
per Major J.  The major elements of a tort action – duty, breach causing
injury and cause – reflect “the principle of moral wrongdoing which is the
basis of the negligence law”:  L. Klar, “Downsizing Torts”, in N.J.
Mullany and A.M. Linden, eds., Torts Tomorrow:  A Tribute to John Fleming
(1998), 305, at p. 307.

(at para. 6)

[217]  I find
that the reactions of Mr. Camaso to the actions of Mr. Morris were not
reasonably foreseeable.  At the same time, I find that there was no causal
connection between what Mr. Morris did or omitted to do and the later
actions of Mr. Camaso.  While the running pursuit by Mr. Morris after
Mr. Camaso left the footbridge was unwarranted, it did not amount to a
breach of duty of care arising from a reasonably foreseeable risk of harm.  I cannot
conclude that, but for the actions of Mr. Morris, the death of Mr. Camaso
would have occurred.  At the same time, I cannot conclude that any breach
of duty of care owed by Mr. Morris to Mr. Camaso contributed in a
material way to causing the death of Mr. Camaso.

[218]  I find
that Mr. Morris effectively communicated with Mr. Camaso.  He used a
calming voice, he illustrated to Mr. Camaso that he was not a policeman,
and he engaged Mr. Camaso in a discussion about his wellbeing.  While
I am satisfied that Mr. Morris did not adequately communicate to
Constable Dukeshire about the state of mind of Mr. Camaso and while
I am satisfied that Mr. Morris did not adhere to established protocol
for dealing with similar individuals who might pose a danger to themselves or
others, I am satisfied that the death of Mr. Camaso would have
occurred just the same.  The actions of Mr. Morris made no difference to
the outcome: Resurfice Corp., supra, at paras. 23-28; and Clements
(Litigation Guardian of) v. Clements, [2010] B.C.J. No. 2532 (C.A.),
at paras. 40‑43.

[219]  The
Plaintiffs have not proven on a balance of probabilities that the actions of Mr. Morris
contributed to any degree to the subsequent death of Mr. Camaso.  Accordingly,
I dismiss the claim of the Plaintiffs against Mr. Morris and the
Crown.

(B)     Claims against Constables McNeil and Murphy

[220]  The
Plaintiffs submit that Constables McNeil and Murphy owed a duty of care to Mr. Camaso
to take reasonable care for his safety and that they breached their duties of
care owed to Mr. Camaso, thereby causing his death.  The Plaintiffs submit
that the injuries and death of Mr. Camaso were caused or contributed to by
the negligence of Constables McNeil and Murphy, the particulars of which are stated
to be:  (a) failing to remain a safe distance away from Mr. Camaso; (b) failing
to properly assess the situation before approaching Mr. Camaso; (c) failing
to communicate adequately, or at all, with Dispatch/911, superior officers and
each other; (d) failing to plan a method for dealing with the situation; (e) failing
to adhere to established protocols for dealing with similar situations; (f) failing
to bring proper equipment to the scene; (g) failing to fulfill their
obligations to ensure the safety of Mr. Camaso; (h) failing at all
material times to exercise the standard of care required by their positions as
police officers with the Saanich Police Force; and (i) acting with wanton
and reckless disregard for the life of Mr. Camaso.

[221]  Regarding
the particulars relied upon, I find that Constables McNeil and Murphy did
not fail to remain a safe distance away from Mr. Camaso, did not approach Mr. Camaso
even if it could be said that they failed “to properly assess the situation”
before doing so, did not fail to bring proper equipment to the scene, and did
not act with wanton and reckless disregard for the life of Mr. Camaso.

[222]  The call
that day was put to Constable Dukeshire.  He was the senior officer of the
three.  It was up to Constable Dukeshire and not Constables McNeil and Murphy
to communicate with Dispatch and superior officers.  If there was a failure to
plan a method for dealing with the situation, the blame for that failure lies
with Constable Dukeshire.

[223]  However,
I do find that Constables McNeil and Murphy did fail to communicate
adequately or at all with Police Dispatch and the officers in command that day.
Neither contacted supervisors to request they take control of the scene.  Constable
Murphy at Trial confirmed that the situation was a “high-risk situation”, and that,
in high-risk situations, it was an appropriate practice to call a supervisor,
but she testified:  “I didn’t personally.”  At her Discovery, Constable Murphy
confirmed that what normally happens in a high-risk situation is that a
supervisor would be called.

[224]  Having
reached those conclusions, I can find no causal connection between what
Constables McNeil and Murphy did or omitted to do and the later actions of Constable
Dukeshire or Mr. Camaso.  I cannot conclude that there was a breach
of duty of care arising from a reasonably foreseeable risk of harm to Mr. Camaso
created by the acts or omissions of Constables McNeil and Murphy.  I cannot
conclude that, but for the acts and omissions of Constables McNeil and Murphy,
the death of Mr. Camaso would occur.  I cannot conclude that any
breach of duty of care owed by Constables McNeil and Murphy to Mr. Camaso
contributed in a material way to causing his death.  Accordingly, the claim of
the Plaintiffs against Constables McNeil and Murphy is dismissed.  To the
extent that the Plaintiffs claim that Saanich is vicariously liable for the
acts or omissions of Constables McNeil and Murphy, that part of the claim of
the Plaintiffs against Saanich is dismissed.

(C)     Claims against Chief Egan

[225]  The
Plaintiffs submit that Chief Egan breached a duty of care owed to Mr. Camaso
as a result of his:  (a) failure to provide adequate or competent staffing
levels; (b) failure to take reasonable steps to ensure the competence of
the constables for duty; (c) failure to provide police officers with
adequate training for dealing with mentally disturbed individuals; (d) failure
to adhere to standard operating practices mandated by the B.C. Association of
Chiefs of Police to equip every police offer with Taser or stun gun; and (e) failure
to provide adequate or competent staffing levels.

[226]  The
Plaintiffs also submit that none of the 32 members of the Saanich Police
Department who held a permanent rank of Sergeant or above were on duty on the shift
when Mr. Camaso died and that those who were on duty did not follow the
policy of the Department dealing with “patrol supervision”.  In this regard,
the Plaintiffs submit that the policy on patrol supervision dictated that “when
a serious incident occurs, the Patrol NCO will:  (i) immediately take
control of the situation; (ii) coordinate activities; (iii) guide and
direct the activities of assigned personnel; (iv) ensure duties are
carried out according to law, policies and procedures; (v) notify the
Watch Commander; and (vi) arrange for the notification of other Divisions
and agencies.

[227]  Regarding
the question of the senior staff on duty that day, the Plaintiffs also submit
that, at all material times, Chief Egan owed a duty of care and an obligation to
institute training, programs, policies and/or orders, which would ensure that
police officers in his charge would comply with their legal obligations to
cooperate with the investigating team and would comply with their training and
the “laws of the land” so as to ensure the integrity of the criminal
investigation.

[228]  The
practice of the Department was that the position of Watch Commander had to be
occupied by a member with the rank of Staff Sergeant or higher, and that the
road supervisors (Patrol NCO) had to be at least Sergeants.  In the Notice to
Admit filed on behalf of Chief Egan, the three Constables and Saanich, it was
admitted that “all officers then on day duty had permanent ranks of constable”.
The Plaintiffs rely on this to advance the proposition that there was failure
on July 11, 2004 to provide adequate or competent staffing levels.

[229]  However,
Constable Kerr had been assigned the rank of Acting Staff Sergeant and Constables
Melville and Naydiuk had been assigned the rank of Acting Sergeant.  Constable
Kerr had passed the Sergeant’s Eligibility examination in 1997, and was on the
eligibility list for promotion since January 2004 having completed 3,281 hours
as an Acting Sergeant.  Constable Kerr was appointed to the position of
full-time Acting Sergeant on June 7, 2004.  Acting Staff Sergeant Kerr was
in the Watch Commander’s Office in Headquarters on July 11, 2004.
Constable Melville had passed the Sergeant’s Eligibility examination in 2001,
had completed 459.5 hours in Acting Corporal and Acting Sergeant service, and
had held the rank of Corporal between December 18, 2000 and June 23,
2004.  Constable Naydiuk had written and passed the Sergeant’s Eligibility
examination in 1996, had served as a Supervisory Instructor in the position of
Corporal at the Justice Institute of British Columbia from December 1,
1997 through August 31, 2000, and had completed 229 hours as Acting
Sergeant.  As well, there were more constables on duty than the minimum
required in accordance with the policy of the Department which was in effect.

[230]  Acting
Sergeant Melville and Acting Sergeant Naydiuk were at Headquarters as the
events of July 11, 2004 developed.  It is stated that they were preparing
for a tele-bail process for three “in custody” individuals at all relevant
times that day.  The Plaintiffs note that none of the officers on duty that day
were called by the Defendants to testify regarding their role that day, what
they were actually doing as the incident unfolded, and why they did not
intervene to “immediately take control of the situation”.

[231]  I find
that nothing turns on these questions.  First, Acting Sergeant Melville was on
the way to the scene when Mr. Camaso was shot.  Second, I am
satisfied that there was no evidence that the nature of the initial calls
should have generated any involvement by the road supervisors other than the
routine monitoring of radio traffic.  Third, I cannot come to the
conclusion that there was sufficient evidence or any evidence to allow me to
conclude that the lack of experience on the part of the three supervisory
officers played any causal role in the incidents which resulted in the death of
Mr. Camaso.  Fourth, I am satisfied that the experience of Acting
Sergeant Kerr, Acting Sergeant Melville and Acting Sergeant Naydiuk was more than
sufficient to fulfill the duties imposed upon them that day.

[232]  It is
obvious that the three Constables involved were junior and that none of the
members of the Saanich Police Department who held the permanent rank of
sergeant were on duty that day.  However, I cannot come to the conclusion
that the situation would have been handled any differently by more experienced
road supervisors, that the road supervisors were not providing adequate or
competent supervision, or that what was done or omitted by the three
supervisory officers contributed in any way to causing the death of Mr. Camaso.

[233]  I am
satisfied that there was no reason for a shift or road supervisor to react on
an emergency basis in response to information that there was an extinguished
fire at an apartment, there was no apparent danger to any individual, the fire
department was on its way, paramedics were standing by, neither the complainant
nor the subject of the complaint were at the scene, and three Constables had
responded.

[234]  There was
little or no training available to deal with emotionally disturbed
individuals.  There was no policy in place at the Saanich Police Department
relating to emotionally disturbed individuals.  Hopefully, those deficiencies
have been rectified as a result of the adoption of the recommendations made as
a result of the Inquest and as a result of the external review of the policies
of the Saanich Police Department.  I conclude that Chief Egan and the Saanich
Police Department did fail to provide the three Constables with adequate
training for dealing with mentally disturbed individuals.

[235]  Having
reached that conclusion, I cannot also come to the conclusion that a duty
of care was owed to the Plaintiffs in that regard or that there was a breach of
that duty of care.  I cannot find that it was a foreseeable risk that the
Plaintiffs would be harmed by such a failure.  I reach this conclusion
even though steps have subsequently been taken to make constables aware of the
emergency mental/health body that could be called upon for assistance with
mental health issues and that the Department will pursue additional training
opportunities in the area of mental health issues as recommended by the Coroner’s
Jury.

[236]  Regarding
the alleged failure to equip each of the Constables with a Taser or stun gun,
I find that there was such a failure.  However, I also find that this
failure in no way contributed to causing of the death of Mr. Camaso.  Even
if Constable Dukeshire had been in “armed” with such devices, there is nothing
in evidence which would allow me to conclude that he would have used them in
order to avoid the perceived threat posed by Mr. Camaso.

(D)     Claims for Negligent Investigation

[237]  The
Plaintiffs submit that Chief Egan and Saanich owed a duty of care to the
Plaintiffs to ensure that a thorough and complete investigation into the death
of Mr. Camaso was carried out in accordance with their own police policies
and generally accepted practices in conducting homicide investigations.  The
Plaintiffs submit that Chief Egan and Saanich also had an obligation to the
Plaintiffs to ensure that the Saanich police force conducted a complete and “transparent”
investigation into the death of Mr. Camaso so as “to ensure the integrity
of the criminal justice system”.

[238]  The
Plaintiffs submit that Chief Egan and Saanich failed to conduct a complete and
thorough homicide investigation, or failed to conduct a homicide investigation
at all, so that they breached the duty of care owed to the Plaintiffs and are
thus liable for the negligent investigation into the death of Mr. Camaso.

[239]  As a direct
result of the negligent investigation into the death of Mr. Camaso by
Chief Egan and Saanich, the Plaintiffs state that they have suffered damages,
which damages Egan and Saanich knew or ought to have known would be the result
of their negligent investigation.  The Plaintiffs contend that the manner in
which the investigation was conducted deprived them of an objective
determination of the facts and that they have suffered damages as a result.

[240]  The
Plaintiffs also submit that the “wilful misconduct” of Constables Dukeshire,
McNeil and Murphy amounted to “a deliberate, unlawful conduct done in bad faith
in the exercise of public functions” so that, as a result of their action or
inaction “in effectively frustrating the investigation into the death” of Mr. Camaso,
the Plaintiffs have been “… deprived of a thorough, competent and credible
criminal investigation”.

[241]  The
Plaintiffs submit that, as a result of the negligent investigation into the
death of Mr. Camaso having been “irreparably tainted”, the Plaintiffs have
been deprived of “any prospect closure in respect of his death” and that “this
lack of closure is due directly to the acts and omissions of the Constables Dukeshire,
McNeil and Murphy…”.  It is also submitted that the wilful misconduct of
Constables Dukeshire, McNeil and Murphy in undermining the investigation has
resulted in the “grieving” for Mr. Camaso having been aggravated and
prolonged so that the Plaintiffs “have and continue to suffer physically,
emotionally and psychologically as a direct result of the actions” of Constables
Dukeshire, McNeil and Murphy.  It is further set out in the Amended Statement
of Claim:  “In addition to suffering mental distress, anger, depression and
anxiety, the Plaintiffs have lost all confidence in the police authorities.
The Plaintiffs have lost their enjoyment of life, have suffered moral injury
and will continue to suffer in the future.”

[242]  I am
satisfied that the investigation into the death of Mr. Camaso was
negligent.  I come to this conclusion as a result of making the following
findings of fact:  (a) Constables McNeil and Murphy were not separated
after the shooting, were allowed to go back to Police Headquarters
unaccompanied and together, and were allowed to leave Headquarters without
being separately interviewed or interviewed at all.  That failure was other
than in accordance with Policy in effect and appropriate investigation;
(b) Constable Dukeshire was not immediately interviewed about what had
occurred.  That was also other than in accordance with the Policy in effect and
appropriate police investigation practice; (c) Constable Dukeshire was
allowed to seek the counsel of his brother and others when he arrived back at
Police Headquarters; (d) Constables Dukeshire, McNeil and Murphy did not
provide statements as soon as practicable to ensure that their evidence was accurate
and not contaminated by either media coverage or by the views of others
including family, friends and colleagues; (e) no photographs were taken of
what was in the possession of Constable Dukeshire or of his clothing; (f) a
bullet fragment from the gun of Constable Dukeshire was found at the scene
three days after what should have been a thorough search on July 11, 2004 so
that it was not possible to ascertain whether that bullet fragment had been
moved in the interim; (g) to test the theory of whether Constable
Dukeshire had reasonable grounds to believe that it was necessary to shoot Mr. Camaso
to protect himself from death or grievous bodily harm, the questions of how
close Mr. Camaso was to Constable Dukeshire and of what Mr. Camaso
had in his hand or in his hands were important questions to be answered.
Despite that, no test for gunshot residue was undertaken on the clothing of Mr. Camaso
to see if it was possible to ascertain the proximity of Mr. Camaso to the
firearm of Constable Dukeshire from that test; (h) there was certainly a
doubt raised in the minds of some of the witnesses whether Mr. Camaso had
one or two objects in his hands.  Despite the statements received on
July 11, 2004 as to what was in his hand or hands, no DNA or fingerprint
analysis was undertaken despite the fact that internal instructions were given
that such analysis should be undertaken.  While DNA or fingerprint analysis
might well have indicated that Mr. Camaso had touched one or both of the
objects at some time, the absence of DNA or fingerprint evidence or only the
presence of DNA or fingerprint evidence from a third party might well have led
to the conclusion that one of the objects had not been touched by Mr. Camaso;
(i) although it was important in the context of testing the recollection
of Constable Dukeshire regarding his location and the location of Mr. Camaso,
no testing was undertaken on the handgun of Constable Dukeshire to ascertain the
likely trajectory of bullet casings in relation to where Mr. Camaso lay on
the ground; (j) while it was the testimony of Constable Dukeshire that he
fired two shots, and then a third shot somewhat later, no follow-up interviews
of D.G. and others were undertaken despite the fact that D.G. had written to
indicate that he heard three rapid shots being fired and other witnesses
reported the same; (k) despite the recollection of Constable Dukeshire
that Mr. Camaso was moving rapidly towards him and was within six feet of
him before three shots were fired, no testing of the ability of Constable
Dukeshire and/or his firearm were undertaken to ascertain whether it was
feasible to shoot three times at a person who was moving forward and was said
to be within six feet when the first shot was fired.  The location of Mr. Camaso
in relation to Constable Dukeshire goes to the question of whether Constable
Dukeshire had a reasonable apprehension of the infliction of bodily harm when
he shot Mr. Camaso; (l) while it appears that the pipe and the
crowbar were approximately 17 feet away from the blood on the ground, no
testing was undertaken to ascertain how the one item that was in Mr. Camaso’s
hand was able to have enough forward momentum despite having been hit by either
a bullet or a bullet fragment, and how that item could have travelled
approximately the same distance as the item that Constable Dukeshire testified
that he removed from the other hand of Mr. Camaso and threw away from Mr. Camaso;
(m) no one at Headquarters insisted that the three Constables make notes
of what had occurred; (n) despite the fact that a Use of Force Report should
have been individually prepared by the three Constables to accurately reflect
what had occurred, identical reports were prepared and were signed by the three
Constables, thereby requiring two of the Constables to state matters which were
incorrect and of which they had no personal knowledge; (o) Constable
McNeil was not asked to re-enact what had occurred on July 11, 2004 as the
questioner did not wish to “upset” her; (p) when Constable Murphy arrived
back at Headquarters, it appears that no one was aware that she was a witness
and a participating constable that day so that she was treated as someone who
could be called upon to comfort Constable McNeil; (q) the Press Release
included that the “level of force … was appropriate”, despite the fact that
the three Constables had not been interviewed, and despite the fact that this
early conclusion may well have resulted in the poisoning of the later review of
whether or not this “conclusion” was the case and a poisoning of the
recollection of the three Constables; and (r) the Press Release contained
numerous inaccuracies which may well have resulted in a poisoning of the later
statements of the three Constables and in the poisoning of the later review by
sources inside and outside the Saanich Police Department about what had
occurred and whether there should be changes to the policies in effect at the
Saanich Police Department.

[243]  The fact
that this was the first “police shooting causing death” in a considerable time within
Saanich does not excuse the negligent investigation which took place.  There is
no excuse which would justify how the investigation into the death of Mr. Camaso
was handled.  I find that the investigation was other than in accordance with
good police practice, other than in accordance with what society should expect
from a modern police force, and other than in accordance with the duty of care
which would have been owed if Mr. Camaso had survived.

[244]  Having
reached that conclusion, I have also reached the conclusion that damages
are not available to the Plaintiffs for this negligent investigation.  In Norris
v. Gatien (2001), 56 O.R. (3d) 441 (C.A.), the Court determined that a
family member of a deceased who alleged that the investigation into a
police-involved death was negligent lacked any legal interest in the
investigation and, therefore, had no cause of action against the investigator.
On behalf of the Court, Austin J.A. concluded:

Both counsel recognize that police officers constitute a
public authority and are normally engaged in carrying out a public law duty.
The question here is whether, in the circumstances, Gatien owed a private law
duty of care to the plaintiffs.

The test for determining that question was set down by Wilson J.
in City of Kamloops v. Neilsen et al (1984), 10 D.L.R. (4th) 641
(S.C.C.) at pp. 662-663 as follows:

Is there a sufficiently close
relationship between the parties (the local authority and the person who has
suffered the damage) so that, in the reasonable contemplation of the
authority, carelessness on its part might cause damage to that person? If
so, are there any considerations which ought to negative or limit (a) the
scope of the duty and (b) the class of persons to whom it is owed or
(c) the damages to which a breach of it may give rise?

[Emphasis added in original]

In my view, the resolution of the instant motion is to be
found in the words of the first question, namely “in the reasonable
contemplation of the authority [Gatien/Nepean], might carelessness on [their]
part cause damage to that person [the plaintiffs]?”.  The answer to that
question must be “no”.

This is so because the plaintiffs had no legal interest in
the investigation or prosecution of Loranger; that investigation and
prosecution were matters of public law and public interest.  Nor had the
plaintiffs any legal interest in the disciplinary proceedings taken against
Loranger.  Had Loranger been convicted on either or both charges, the
plaintiffs, or some of them, may have derived some personal satisfaction from
that conviction. That satisfaction, however, would have been a purely personal
matter; it would have no reality in law.  Nor did the failure to reach that
verdict have any consequence for the appellants sounding in damages.

(at paras. 15-18)

[245]  It is
clear that a negligent police investigation may be actionable at the instance
of the subject of the investigation: Odhavji Estate v. Woodhouse,
[2003] 3 S.C.R. 263, and Hill v. Hamilton-Wentworth Regional Police Services
Board, [2007] 3 S.C.R. 129.  In Odhavji, the police officers
involved in an incident did not comply with the requests of a Special
Investigation Unit that they remain segregated, that they attend interviews on
the same day as the shooting, and that they provide their shift notes, on-duty
clothing, and blood samples in a timely manner.  The issue before the motions
justice and the Court of Appeal was whether the claims for misfeasance in
public office against the officers and the Chief of Police and the claims for
negligence against the Police Board and the Province should be struck on the
basis that the claims disclosed no reasonable cause of action.  In holding that
the actions for misfeasance in a public office against the police officers and
the Chief and in negligence against the Chief should be allowed to proceed,
Iacobucci J., on behalf of the Court, stated:

It is not immediately clear, in my view, that this initial
threshold has been satisfied.  Although it is to be expected that an inadequate
investigation would distress or anger the close relatives of Mr. Odhavji,
it is less obvious that this distress or anger would rise to the level of
compensable psychiatric harm.  Nevertheless, I do not think it “plain and
obvious” that such harm is an unforeseeable consequence of the defendant
officers’ failure to cooperate with the investigation.  The task might be a
difficult one, but the appellants should not be deprived of the opportunity to
prove that the complained of harm is a reasonably foreseeable consequence of a
truncated or otherwise inadequate investigation into the shooting incident. It
is reasonably foreseeable that the officers’ failure to cooperate with the SIU
investigation would harm the appellants.  As the Chief was responsible for
ensuring that the officers cooperated with the SIU investigation, it is
reasonably foreseeable that the Chief’s failure to do so would also harm the
appellants.

The next question that arises is whether there is sufficient
proximity between the parties that a duty of care may rightly be imposed on the
Chief.  It may be that the appellants can show that it was reasonably
foreseeable that the alleged misconduct would result in psychiatric harm, but
foreseeability alone is an insufficient basis on which to establish a prima
facie duty of care. In addition to showing foreseeability, the appellants must
establish that it is just and fair to impose on the Chief a private law
obligation to ensure that the defendant officers cooperated with the SIU.  A
broad range of factors may be relevant to this inquiry, including a close
causal connection, the parties’ expectations and any assumed or imposed
obligations. …

(at p. 296)

In light of the above factors, I conclude that the
circumstances of the case satisfy the first stage of the Anns [Anns
v. Merton London Borough Council [1978] A.C. 728] test and raise a prima
facie duty of care. If it is reasonably foreseeable that the defendant officers’
decision not to cooperate with the SIU would injure the plaintiffs, a private
law obligation to ensure that the officers cooperate with the SIU is rightly
imposed on the Chief.  Consequently, the only issue that is left to consider is
whether there exist any broad policy considerations that ought to negative the
prima facie obligation of the Chief to prevent the misconduct.

(at p. 298)

In short, I believe that it would be inappropriate to
strike the action for negligent supervision against the Chief on the basis that
he did not owe the plaintiffs a duty of care.  If the plaintiffs can establish
that the complained of harm is a reasonably foreseeable consequence of the
Chief’s failure to ensure that the defendant officers cooperated with the SIU,
the Chief was under a private law duty of care to take reasonable care to
prevent such misconduct.  The cross-appeal against the Court of Appeal’s
decision to allow the action in negligence against Police Chief Boothby to
proceed is therefore dismissed.

(at p. 299)

[246]  In Hill,
supra, McLachlin C.J.C. set out that a negligent police
investigation may be actionable at the instance of the subject of the
investigation (at para. 3), however limited the applicability of the
decision to the duty owed to the relationship between officers investigating a
criminal complaint and the subject of that investigation.  In this regard,
McLachlin C.J.C. made this statement on how to approach the considerations
dealing with other relationships:

… It might well be that both the considerations informing
the analysis of both proximity and policy would be different in the context of
other relationships involving the police, for example, the relationship between
the police and a victim, or the relationship between a police chief and the
family of a victim.  This decision deals only with the relationship between the
police and a suspect being investigated.  If a new relationship is alleged to
attract liability of the police in negligence in a future case, it will be
necessary to engage in a fresh Anns analysis, sensitive to the different
considerations which might obtain when police interact with persons other than
suspects that they are investigating.  Such an approach will also ensure that
the law of tort is developed in a manner that is sensitive to the benefits of
recognizing liability in novel situations where appropriate, but at the same
time, sufficiently incremental and gradual to maintain a reasonable degree of
certainty in the law.  Further, I cannot accept the suggestion that cases
dealing with the relationship between the police and victims or between a
police chief and the family of a victim are determinative here, although
aspects of the analysis in those cases may be applicable and informative in the
case at bar. (See Odhavji and Jane Doe v. Metropolitan Toronto
(Municipality) Commissioners of Police (1998), 160 D.L.R. (4th) 697 (Ont.
Ct. (Gen. Div.)).)  I note that Jane Doe is a lower court decision
and that debate continues over the content and scope of the ratio in that case.
I do not purport to resolve these disputes on this appeal. In fact, and
with great respect to the Court of Appeal who relied to some extent on this
case, I find the Jane Doe decision of little assistance in the case
at bar.

(at pp. 148-149)

[247]  It is
submitted on behalf of the Plaintiffs that:  “… the law in this area is
evolving and that there is no principled reason why someone other than the
wrongly accused should not recover for the harm caused by a negligent
investigation, provided conventional principles of causation and reasonable
foreseeability are met”.  Whether or not the law in this area is “evolving” and
even though some might agree with the statement that others should be in a
position to recover for harm caused by negligent investigation, I am not
in a position to ignore a decision from the Ontario Court of Appeal and strong
dicta against the position taken by the Plaintiffs as set in Odhavji and
Hill, both supra.

[248]  At the
same time, I am not in a position to ignore the decisions reached by this
Court and our Court of Appeal in Thompson v. Saanich (District) Police
Department, [2009] B.C.J. No. 2800 (S.C.); and (2010), 320 D.L.R. (4th) 496 (B.C.C.A.).  In Thompson, the question was
whether a claim of negligence was available to a noncustodial parent where it
was alleged that a duty of care was owed to him by the police officers in their
conduct of an investigation.  In the context of an application to strike out
certain parts of the statement of claim, R.D. Wilson J. referred to the
decisions in Hill and Odhavji, both supra, before
concluding:  “Whether general or particular, I am not persuaded that the
present law recognizes a duty of care to a person in that position as complainant.”
(at para. 17).

[249]  The
decision to strike out portions of a statement of claim was upheld with
Saunders J.A. on behalf of the Court stating:

In my view, the relationship of Mr. Thompson to the
police officers, even on his full pleadings, is not sufficiently proximate to
find a duty of care. Mr. Thompson was not the subject of the information
provided to the police, either as a person said to be wronged – who were his
children, or the person thought to be the wrongdoer – Ms. Thompson.  He
was, although the father of the children, one party removed from the complaint.
I consider it is plain and obvious, on the pleadings, that Mr. Thompson
was not within the circle of people the police would reasonably have in mind as
a person potentially harmed by their actions.

In the hearing before us Mr. Thompson relied heavily
upon Odhavji, saying it supports his proposition that as he is a family
member of the person wronged, he has a recognized relationship to the police
sufficient to support a duty of care.  I do not think this is so. Odhavji,
on my view, is a very different case.  The wrong said to support the claim in
negligence was failure to meet the requirements of specific legislation, in the
context of investigation of police conduct leading to the death of the family
member; the duty of care discussed by the court arose related to the Chief of
Police’s supervisory responsibilities to ensure appropriate police behaviour in
investigating police conduct.  This is not that case.

(at paras. 27-28)

[250]  This very
strong statement by the Court of Appeal and the distinguishing of the decision
in Odhavji, supra, allows me to conclude that the Plaintiffs are
not sufficiently proximate so that I could find a duty of care owed by
Chief Egan and/or Saanich to the Plaintiffs.  However, there is another reason
why I would not be in a position to award damages to the Plaintiffs
arising out of the negligent investigation by the Saanich Police Department.

[251]  The appeal
in Thompson, supra, was dismissed on the further ground that the
Court agreed with the finding that the plaintiff had not pleaded damages that
could be recovered in an action for negligence.  In concluding that no
compensable damages could arise out of complaints of estrangement and
alienation causing emotional pain, Saunders J.A. concluded that there was
an additional reason why the appeal in Thompson should be dismissed:

The judge held in the result that there was no pleading of a
recognizable psychiatric illness; and thus no basis in the pleading for an
award of damages.

I agree with this analysis, and would add this discussion of
the issue in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2
S.C.R. 114, which, although stated in a different context of alleged harm, is
apt:

This said, psychological
disturbance that rises to the level of personal injury must be distinguished
from psychological upset.  Personal injury at law connotes serious trauma or
illness:  see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page
v. Smith, [1996] 1 A.C. 155, at p. 189; Linden and Feldthusen, at
pp. 425-27.  The law does not recognize upset, disgust, anxiety, agitation
or other mental states that fall short of injury.  I would not purport to
define compensable injury exhaustively, except to say that it must be serious
and prolonged and rise above the ordinary annoyances, anxieties and fears that
people living in society routinely, if sometimes reluctantly, accept. …

(at paras. 32-33)

[252]  Psychiatric
damages are available only in instances where the plaintiff suffers from a “visible
and provable illness” or “recognizable physical or psychopathological harm”: Thompson
and Odhavji at para. 41.  I find that the Plaintiffs have not
adduced evidence of a visible, provable illness.  As well, the Plaintiffs have
adduced no evidence that the ongoing grief is based to any significant degree
upon the investigation and the problems associated with the investigation or
that serious trauma or illness has resulted.  The test in this regard is set
out in Kotai v. Queen of the North (Ship), [2009] B.C.J. No. 2022
(S.C.), where Joyce J. summarized the law as follows:

In the end, I am not able to conclude that the Court in Mustapha
… [Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114], intended
to change the law with respect to the threshold level of psychological or
psychiatric injury that is required in order to be compensable where the
psychiatric or psychological injury is caused by exposure, whether direct or
indirect, to a shocking or frightening incident caused by the defendant’s
negligence.  I am not satisfied that Mustapha has the effect of
overturning Graham v. MacMillan … [Graham v. MacMillan, 10
B.C.L.R. (4th) 397 (C.A.)], which remains the law in this province in my
opinion. (at para. 64)

The requirement that the plaintiff must prove that he or she
suffered a recognizable psychiatric illness introduces a degree of objectivity
and certainty to the law through the mechanism of expert medical evidence.
PTSD is a psychiatric illness that is often alleged to result from exposure to
frightening or shocking events.  A medical expert will assess the patient with
reference to the diagnostic criteria established by the medical community that
must be present to make a diagnosis.  These criteria require the medical
specialist to consider the persistence of symptoms and their impairment of
social and occupational impairment.  The court is thereby provided with
evidence that enable it to judge the seriousness of the disturbance and its
longevity.

Accordingly, I conclude that there remains a requirement
that the claimants prove not just psychological disturbance or upset as a
result of the defendant’s negligence but also that their psychological
disturbance rises to the level of a recognizable psychiatric illness.

(at paras. 68-69)

[253]  There was
no evidence adduced on behalf of the infant Plaintiff that could demonstrate
any damage.  By the time of the Trial, Ms. Camaso had not explained to her
daughter the circumstances surrounding the death of her father or her concerns
about the investigation into the death of her father.

[254]  Regarding
her own damages, Ms. Camaso has adduced no evidence relating to emotional
or psychological injury.  Although I have no doubt that Ms. Camaso
suffered enormous grief and distress upon learning of the circumstances
surrounding the death of her husband, there is no evidence to suggest that Ms. Camaso
developed any particular emotional or psychological distress which can be
associated with her learning about the investigation into the death of her
husband.  That part of the Amended Statement of Claim which claims damages against
Chief Egan and Saanich for negligent investigation is dismissed.

[255]  That part
of the Amended Statement of Claim which claims damages against Constables
Dukeshire, McNeil and Murphy for negligent investigation is also dismissed for the
reasons noted above and because I can make no finding that there was “wilful
misconduct” amounting to a “deliberate, unlawful conduct done in bad faith”.
There is no indication that the three Constables did anything deliberately to
frustrate the investigation.  In fact, they gave statements when they were
requested to do so and they signed the Use of Force Report prepared for them.
While I can find that these matters contributed to arriving at the
conclusion that there had been a negligent investigation into the death of Mr. Camaso,
I cannot reach the conclusion that the acts or omissions of the three
Constables were deliberate.

(E)      Claims for Breach of Public
Duty/Misfeasance in Public Office

[256]  In the
Amended Statement of Claim, the Plaintiffs set out the following regarding “the
alleged breach of public duty/misfeasance in public office” of Chief Egan:

When Chief Egan was informed of Mr. Camaso’s death, in
his capacity as Chief of Police, he assumed full carriage of the investigation
into the death of Mr. Camaso.

By operation of law and/or police operating procedures and/or
standing orders, Chief Egan had the following obligations and duties, both
operational and/or public duties:

(a)     to
ensure that an independent and unbiased external investigation team of officers
were appointed, other than officers of the Saanich Police Department;

(b)     to
maintain appropriate supervision and control over Constables Dukeshire, McNeil
and Murphy;

(c)     to
ensure that as a potential suspect and witnesses to a homicide, Constables
Dukeshire, McNeil and Murphy were immediately segregated up to and until the
time they had prepared detailed written notes of the incident and had provided
sworn statements to the investigating team of officers;

(d)     to
ensure that investigating officers acted diligently and in accordance with
standard operating procedures when faced with a homicide;

(e)     to
ensure that Constables Dukeshire, McNeil and Murphy provided sworn statements
as soon as practical to ensure their evidence was true, accurate and not
contaminated;

(f)      to
ensure that the investigating officers conducted themselves in a transparent
and forthright manner and not confer with any of the potential witnesses or
suspects to the homicide; and

(g)     to
ensure that all investigating officers, as well as Constables Dukeshire, McNeil
and Murphy conducted themselves in a professional and ethical manner consistent
with the standard of conduct that a reasonable citizen would expect from
members of the police force acting professionally during a homicide
investigation.

The Plaintiffs say that Chief Egan deliberately breached the
duties set out above by engaging in a course of conduct calculated to undermine
and/or frustrate the investigation into the death of Mr. Camaso wrongly
protecting the interests of the defendant Police Officers and Saanich and that
Chief Egan is therefore liable for abuse/misfeasance in public office.  In the
alternative, the Plaintiffs say that Chief Egan acted recklessly, and without
good faith to a point that it constitutes an abuse of power.  The particulars
of the said abuse and conduct are as follows:

(a)     failing
to appoint an independent and/or external investigation team;

(b)     failing
to maintain appropriate supervision and control of Constables Dukeshire, McNeil
and Murphy;

(c)     failing
to ensure Constables Dukeshire, McNeil and Murphy were segregated until such
time they had all provided independent sworn statements;

(d)     failing
to ensure that Dukeshire, McNeil and Murphy were supervised from July 11 2004
to July 14. 2004;

(e)     failing
to conduct and/or instruct an independent and transparent investigation into
the death of Mr. Camaso;

(f)      failing
to ensure Dukeshire, McNeil and Murphy made complete and accurate notes of the
shooting of Mr. Camaso prior to the conclusion of their shifts on July 11,
2004;

(g)     failing
to conduct interviews and take sworn statements from Dukeshire and McNeil for 3
days following the death of Mr. Camaso;

(h)     failing
to conduct an interview and take a sworn statement from Murphy for 5 days
following the death of the deceased;

(i)      allowing
Dukeshire, McNeil and Murphy the opportunity to confer with senior police
officers and investigating officers in order to provide them opportunities to
discuss other evidence prior to giving sworn statements;

(j)      allowing
Dukeshire, McNeil and Murphy to confer with each other before making their
statements so that their individual recollections were not preserved; and

(k)     allowing
Dukeshire, McNeil and Murphy an opportunity to review other witnesses’
statements so that their individual recollections were not preserved.

As a result of the acts and omissions of Chief Egan in
effectively frustrating the investigation into the death of Mr. Camaso,
the Plaintiffs have been deprived of a thorough, competent and credible criminal
investigation.  The Plaintiffs have also been deprived of a thorough, competent
and credible investigation by the Police Complaints Commissioner.

The Plaintiffs say that the results of the investigation into
the death of Mr. Camaso have been irreparably tainted, thus depriving the
Plaintiffs of any prospect of closure in respect of his death.  The Plaintiffs
say that this lack of closure is due directly to the acts and omissions of
Chief Egan as pleaded.

As a result of Chief Egan’s
actions in undermining the investigation and any criminal investigation, the
Plaintiffs’ grieving for Mr. Camaso has been aggravated and prolonged.
Furthermore, the Plaintiffs have and continue to suffer physically, emotionally
and psychologically as a direct result of the actions of Chief Egan.  In
addition to suffering mental distress, anger, depression and anxiety, the
Plaintiffs have lost all confidence in the police authorities.  The Plaintiffs
have lost their enjoyment of life, have suffered moral injury and will continue
to suffer in the future.

[257]  As against
Constables Dukeshire, McNeil and Murphy, the Amended Statement of Claim alleges
the following regarding their alleged “breach of public duty/misfeasance in
public office”:

Constables Dukeshire, McNeil and Murphy, as municipal police
constables for Saanich, had responsibilities, obligations and duties to the
Plaintiffs to cooperate fully in the investigation into the death of Mr. Camaso.
Through their own wilful misconduct, Constables Dukeshire, McNeil and Murphy breached
their public obligations and duties, particulars of which are as follows:

(a)     failing
to take detailed written notes of the incident prior to the conclusion of their
shifts on July 11, 2004 when they knew, or ought to have known, that they
were in breach of standard policy and procedures, and that such wilful
misconduct would seriously undermine any ongoing investigation;

(b)     failing
to provide sworn statements prior to the conclusion of their shifts on
July 11, 2004, and for several days following July 11, 2004, knowing
that such wilful misconduct breached standard operating policy and procedure;

(c)     failing
to conduct themselves in a transparent and forthright manner and not to confer
with each other and/or other staff members until such time as they provided
sworn statements, knowing that such wilful misconduct would seriously undermine
the preservation of their individual recollections and contaminate all of their
evidence; and

(d)     failing
to carry out their duties as police officers to the standard expected of
members of a police force acting professionally during a homicide
investigation, knowing that such wilful misconduct would undermine the
investigation into the death of Mr. Camaso.

As a result of the acts and omissions of Constables Dukeshire,
McNeil and Murphy in effectively frustrating the investigation into the death
of Mr. Camaso, the Plaintiffs have been deprived of a thorough, competent
and credible criminal investigation.  The Plaintiffs have also been deprived of
a thorough, competent and credible investigation by the Police Complaints
Commissioner.

The Plaintiffs say that the results of the investigation into
the death of Mr. Camaso have been irreparably tainted, thus depriving the
Plaintiffs of any prospect of closure in respect of his death.  The Plaintiffs
say that this lack of closure is due directly to the acts and omissions of
Constables Dukeshire, McNeil and Murphy as pled herein.

The damages suffered by the Plaintiffs are all consequences,
which Constables Dukeshire, McNeil and Murphy knew, or was caress or reckless
as to the impact their actions would have as a result from their wilful
misconduct in undermining the investigation into the death of Mr. Camaso.

As a result of the wilful
misconduct of Constables Dukeshire, McNeil and Murphy in undermining the
investigation, the Plaintiffs’ grieving for Mr. Camaso has been aggravated
and prolonged.  Furthermore the Plaintiffs have and continue to suffer
physically, emotionally and psychologically as a direct result of the actions
of Constables Dukeshire, McNeil and Murphy.  In addition to suffering mental
distress, anger, depression and anxiety, the Plaintiffs have lost all
confidence in the police authorities.  The Plaintiffs have lost their enjoyment
of life, have suffered moral injury and will continue to suffer in the future.

[258]  The
Plaintiffs submit that the decision in Odhavji, supra, applies.
In Odhavji, the Court set out the two elements necessary to establish
the tort of misfeasance in public office when Iacobucci J., on behalf of
the Court stated:

In Three Rivers [Three Rivers District Council v.
Bank of England (No. 3), [2000] 2 W.L.R. 1220], the House of Lords
held that the tort of misfeasance in a public office can arise in one of two
ways, what I shall call Category A and Category B.  Category A
involves conduct that is specifically intended to injure a person or class of
persons.  Category B involves a public officer who acts with knowledge
both that she or he has no power to do the act complained of and that the act
is likely to injure the plaintiff.  This understanding of the tort has been
endorsed by a number of Canadian courts:  see for example Powder Mountain
Resorts, [Powder Mountain Resorts Ltd. v. British Columbia (2001),
94 B.C.L.R. (3d) 14 (C.A.)]; Alberta (Minister of Public Works, Supply and
Services) (C.A.), supra; and Granite Power Corp. v. Ontario,
[2002] O.J. No. 2188 (S.C.J.).  It is important, however, to recall that
the two categories merely represent two different ways in which a public
officer can commit the tort; in each instance, the plaintiff must prove each of
the tort’s constituent elements.  It is thus necessary to consider the elements
that are common to each form of the tort.

First, the public officer must have engaged in deliberate and
unlawful conduct in his or her capacity as a public officer.  Second, the
public officer must have been aware both that his or her conduct was unlawful
and that it was likely to harm the plaintiff.  What distinguishes one form of
misfeasance in a public office from the other is the manner in which the
plaintiff proves each ingredient of the tort.  In Category B, the
plaintiff must prove the two ingredients of the tort independently of one
another.  In Category A, the fact that the public officer has acted for
the express purpose of harming the plaintiff is sufficient to satisfy each
ingredient of the tort, owing to the fact that a public officer does not have
the authority to exercise his or her powers for an improper purpose, such as
deliberately harming a member of the public.  In each instance, the tort
involves deliberate disregard of official duty coupled with knowledge that the misconduct
is likely to injure the plaintiff.

Insofar as the nature of the misconduct is concerned, the
essential question to be determined is not whether the officer has unlawfully
exercised a power actually possessed, but whether the alleged misconduct is deliberate
and unlawful.  As Lord Hobhouse wrote in Three Rivers, supra, at
p. 1269:

The relevant act (or omission, in
the sense described) must be unlawful. This may arise from a straightforward
breach of the relevant statutory provisions or from acting in excess of the
powers granted or for an improper purpose.

Lord Millett reached a similar conclusion, namely, that a
failure to act can amount to misfeasance in a public office, but only in those
circumstances in which the public officer is under a legal obligation to act.
Lord Hobhouse stated the principle in the following terms, at p. 1269:  “If
there is a legal duty to act and the decision not to act amounts to an unlawful
breach of that legal duty, the omission can amount to misfeasance [in a public
office].”  See also R. v. Dytham, [1979] Q.B. 722 (C.A.).  So, in the
United Kingdom, a failure to act can constitute misfeasance in a public office,
but only if the failure to act constitutes a deliberate breach of official
duty.

(at paras. 22-24)

[259]  Under
s. 113(9) of the Police Services Act, R.S.O. 1990 c. P.15, the
officers in Odhavji, supra, were required to cooperate with
investigations and, under s. 41(1) of that Act, the chief of police
was required to ensure that officers carried out their duties in accordance
with the Act.  On behalf of the Court, Iacobucci J. stated:

In the defendant officers’ submission, the essence of the
plaintiffs’ claim is that they were deprived of a thorough, competent and
credible investigation.  And owing to the fact that no individual has a private
right to a thorough, competent and credible criminal investigation, the
plaintiffs have suffered no compensable damages.  If this were an accurate
assessment of the plaintiffs’ claim, I would agree.  Individual citizens
might desire a thorough investigation, or even that the investigation result in
a certain outcome, but they are not entitled to compensation in the absence of
a thorough investigation or if the desired outcome fails to materialize.  This,
however, is not an accurate assessment of the plaintiffs’ submission. In their
statement of claim, the plaintiffs also allege that they have suffered
physically, psychologically and emotionally, in the form of mental distress,
anger, depression and anxiety as a direct result of the defendant officers’
failure to cooperate with the SIU. (at para. 40)

The next question that arises is whether there is sufficient
proximity between the parties that a duty of care may rightly be imposed on the
Chief.  It may be that the appellants can show that it was reasonably
foreseeable that the alleged misconduct would result in psychiatric harm, but
foreseeability alone is an insufficient basis on which to establish a prima
facie duty of care.  In addition to showing foreseeability, the appellants
must establish that it is just and fair to impose on the Chief a private law
obligation to ensure that the defendant officers cooperated with the SIU.  A
broad range of factors may be relevant to this inquiry, including a close
causal connection, the parties’ expectations and any assumed or imposed
obligations.  See for example Norsk, supra, at p. 1153; Martel
Building Ltd. v. Canada, [2000] 2 S.C.R. 860, 2000 SCC 60, at paras. 51-52;
and Cooper, supra, at para. 35.

In the present case, one factor that supports a finding of
proximity is the relatively direct causal link between the alleged misconduct
and the complained of harm.  As discussed above, the duties of a chief of
police include ensuring that the members of the force carry out their duties in
accordance with the provisions of the Police Services Act.  In those
instances in which a member of the public is injured as a consequence of police
misconduct, there is an extremely close causal connection between the negligent
supervision and the resultant injury:  the failure of the chief of police to
ensure that the members of the force carry out their duties in accordance with
the provisions of the Police Services Act leads directly to the police
misconduct, which, in turn, leads directly to the complained of harm.  The
failure of the Chief to ensure the defendant officers cooperated with the SIU
is thus but one step removed from the complained of harm.  Although a close
causal connection is not a condition precedent of liability, it strengthens the
nexus between the parties.

(at paras. 55‑56)

[260]  It is a
knowing intentional act by an individual holding a public office that
constitutes breach of public duty/misfeasance in public office. The tort is not
committed vicariously.  As well, misfeasance in public office is not directed
at a public official who inadvertently or negligently fails adequately to
discharge the obligations of his or her office: Odhavji, supra,
at para. 26.

[261]  I am
satisfied that Chief Egan cannot be held responsible for the tort of
malfeasance in public office without there being evidence that, at his specific
direction, a subordinate charged with a particular responsibility acted
inappropriately or that Chief Egan himself acted inappropriately with the
knowledge that his conduct was unlawful and it would likely harm the
Plaintiffs.

[262]  There is
no evidence that Chief Egan “assumed full carriage of the investigation into
the death” of Mr. Camaso as is alleged by the Plaintiffs.  The evidence is
to the contrary.  I accept the evidence of Chief Egan that he did not
involve himself in the investigation because he would be responsible to
undertake any discipline proceedings that might arise as a result of
investigation by others into the activities of officers under his command.  Chief
Egan had developed and instituted a practice within the Department that any
possible misconduct by an officer would automatically result in the launching
of a public trust complaint.  Pursuant to ss. 46(1), 52, 52.1, 53 and 54
of the Police Act, Chief Egan was the “disciplinary authority” for
public trust complaints.  Sitting in a quasi-judicial capacity with regard to
any complaints, Chief Egan was of the belief that it would have been
inappropriate for him to also have been directly involved in the investigation.
I agree.  Accordingly, what was done or not done was not at the specific
direction of Chief Egan.

[263]  There is
nothing which imposes upon a Chief of Police any specific responsibility to
become personally involved in an investigation of circumstances leading to
serious injuries and death whether resulting from offences committed by police
officers or others.  Because that is the case, the direct involvement required
by the tort of misfeasance in public office is lacking.

[264]  The
Plaintiffs have not demonstrated that it was “unlawful” for Chief Egan to keep
the investigation into the death of Mr. Camaso “in house” or that the
process that he put in place was somehow inappropriate.  Even though there may
be significant sentiment in British Columbia that such investigations should
not be “in house”, the Plaintiffs have failed to identify any principle of law
or legislative provision requiring Chief Egan to request a body other than
another police force to conduct all of the investigations into the death of Mr. Camaso.

[265]  The action
in Odhavji, supra, was based on the claim that the plaintiffs had
suffered damage as a result of the failure of the chief to ensure that the
defendant officers complied with s. 113(9) of the Police Services Act
of Ontario.  While there may well be support in British Columbia for a similar
statutory obligation, there is no such statutory obligation presently.  Because
Chief Egan was not under a statutory obligation to ensure that the officers
under his command cooperate fully with an investigation, damages cannot flow as
a result of any alleged failure by Chief Egan to require Constables Dukeshire,
McNeil and Murphy to fully cooperate.

[266]  Although
the segregation of Constables Dukeshire, McNeil and Murphy would have been
appropriate, there is no authority for the proposition that Chief Egan had a
duty to personally segregate the three Constables until they could give their
statements.  While statements should have been obtained from the three Constables
as soon as possible, there is no duty imposed upon them to provide such statements
and so that it cannot be said that Chief Egan was under a duty to ensure that
such statements were provided.  As well, as he was not part of the team of
officers investigating the death of Mr. Camaso, Chief Egan had no
responsibility for the micromanagement of the investigation, including the
obtaining of sworn statements.

[267]  Regarding
the alleged breach of public duty/misfeasance in public office of Constables
Dukeshire, McNeil and Murphy, I cannot conclude that anything that was
done or not done by them was specifically intended to injure the Plaintiffs.
Similarly, I cannot conclude that anything that they did or omitted to do
was with the knowledge that they had no power to do any act complained of.  At
the same time, if I could conclude that “Category B” involves a
failure to act when they did have the power to do the act complained of,
I cannot conclude that there has been any such failure.  Regarding the failure
to take detailed written notes and to provide sworn statements at the earliest
possible date, I am satisfied that these failures do not amount to a
breach of public duty/misfeasance in public office.

[268]  In
accordance with the principles set up in Odhavji, supra, the
Plaintiffs must also prove on a balance of probabilities that they are entitled
to compensation for psychiatric damages because they have suffered a “visible
provable illness” or “recognizable physical or psychopathological harm” (at
para. 41 in Odhavji).  Even if it could be shown that the
Plaintiffs have undergone profound on‑going psychological trauma, I am
satisfied the Plaintiffs have failed to demonstrate that any component of that
is reasonably related to any alleged misfeasance in public office by Chief
Egan, Constable Dukeshire, Constable McNeil and Constable Murphy.  The
Plaintiffs have not established that they suffered psychiatric injury beyond
the ordinary grief and emotional distress that would be associated with the
death of their husband and father: Odhavji at p. 290.  That part
of the Amended Statement of Claim which alleges breach of public
duties/misfeasance in public office by Chief Egan, Constable Dukeshire,
Constable McNeil and Constable Murphy is dismissed.

(F)      Claims against Constable Dukeshire

[269]  In the
Amended Statement of Claim, it is alleged that Constable Dukeshire “wrongfully
and intentionally, committed assault and battery” upon Mr. Camaso thereby
causing his death.  The particulars of the assault and battery are set out as
follows:   (a) drawing his firearm unnecessarily in breach of standard
operating procedures and in circumstances where he knew, or ought to have
known, that drawing a firearm on Mr. Camaso would likely “escalate the
situation”; (b) using excessive force to subdue Mr. Camaso;
(c) failing to use an alternative or lesser form of force to restrain or
subdue Mr. Camaso; and (d) shooting Mr. Camaso when other means
of subduing him were available and in circumstances where Constable Dukeshire
knew or ought to have known that the said force would cause the death of Mr. Camaso.

[270]  The
Plaintiffs also claim that Constable Dukeshire owed a duty of care to Mr. Camaso
to take reasonable care for his safety, that the duty included a duty to use
only that force that was reasonably necessary, that Constable Dukeshire should
have used the least amount of force necessary to carry out his duties, and that
Constable Dukeshire breached the duties that were owed to Mr. Camaso by
using the maximum force available to him.  The Plaintiffs submit that the
injuries and death of Mr. Camaso was caused or contributed to by the gross
negligence of Constable Dukeshire.

[271]  The
Plaintiffs set out the following particulars regarding the alleged negligence
of Constable Dukeshire:  (a) failing to remain a safe distance away from Mr. Camaso;
(b) failing to properly assess the situation before approaching Mr. Camaso;
(c) failing to communicate adequately, or at all, with Dispatch/911,
emergency medical personnel, superior officers and other police officers; (d) failing
to plan a method for dealing with the situation; (e) failing to adhere to
established protocols for dealing with similar situations; (f) failing to
bring proper equipment to the scene; (g) failing to ensure the safety of Mr. Camaso;
(h) failing to exercise the standard of care required by his position as a
police officer with the Saanich Police Force; (I) drawing a firearm in
direct contravention of the standard use of force model and against standard
operating procedures for drawing a firearm; (j) failing to de-escalate the
situation once Mr. Camaso had complied with his commands; (k) continuing
to advance on Mr. Camaso with his firearm drawn even though Mr. Camaso
has ceased to pose a threat, in direct contravention of the standard use of
force mode! and standard operating procedures; (I) failing to wait for
back up or support; (m) discharging his firearm incompetently and in
breach of standard operating procedures for discharging a firearm; (n) failing
to meet the standard of care expected of a member of a police force acting
professionally; (o) breaching his duty to use only so much force as was
reasonably necessary to carry out his legal duties; and (p) acting with
wanton and reckless disregard for the life of Mr. Camaso.

[272]  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, [1959] 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)

[273]  Constable
Dukeshire relies on s. 25 of the Criminal Code of Canada, and
ss. 16 and 28 of the Mental Health Act, R.S.B.C. 1996, c. 288.
Section 25 of the Criminal Code of Canada states in part:

25.  (1)  Every one who is required or authorized by law to
do anything in the administration or enforcement of the law … (b) as a peace
officer or public officer, … 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 person’s protection from death or
grievous bodily harm.

(4)  A 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 …

(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 … 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.

[274]  Sections
16 and 28 of the Mental Health Act state in part:

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 person’s own safety or the safety of
others, and

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

[275]  In dealing
with the allegations raised by the Plaintiffs, I must put myself in the
position of Constable Dukeshire: Berntt v. Vancouver (City of) (1999),
63 B.C.L.R. (3d) 233 (C.A.) where Southin J.A. had this description of the
role of the Court:

The question might be posed thus:  Would the doppelganger,
having also been through the tumult of the evening, as the appellant Hancock
was about to fire, think to himself, “His firing is wrong and unnecessary and
lacking in reason.”, or, “I wouldn’t do it, but his doing it is not lacking in
reason.”, or, “I would do it too.”

(at para. 36)

[276]  In a
concurring judgment, McEachern C.J.B.C. stated:

… the issue is whether a
reasonable person standing in the position of the constable, who had the same
responsibility as the officer to bring the riot to an end, and who was
operating on the same data base as the officer acquired both in previous
training and experience and from the dynamics of that evening including the
need to rescue other officers, the need to use gas and other anti-riot devices,
and who had previously shot a number of rioters without causing serious injury,
could reasonably have concluded that it was a part of his responsibility to
shoot the Plaintiff with an Arwen gun.  (at para. 53)

[277]  Standing
in the shoes of Constable Dukeshire, I cannot conclude that Constable
Dukeshire acted on reasonable grounds which justified doing what he did.  I have
come to the conclusion that what he did was not necessary for his self-preservation.
Constable Dukeshire was not acting on reasonable grounds when he shot Mr. Camaso
three times.  I have come to the conclusion that Constable Dukeshire breached
the duty of care owed to Mr. Camaso so that the shooting of Mr. Camaso
amounts to negligence on the part of Constable Dukeshire.  I have also come to
the conclusion that Constable Dukeshire has not met the onus of showing that
the force that he used that day was not excessive.

[278]  Dealing
first with the question of whether Constable Dukeshire was negligent, the
standard of care applicable to police officers was described in Doern v.
Phillips Estate (1997), 43 B.C.L.R. (3d) 53 (C.A.) as follows:

… [T]here is little doubt that
the standard of care to which a police officer will be held is that of a
reasonable police officer, acting reasonably and within the statutory powers
imposed upon him or her, according to the circumstances of the case …. (at
para. 13)

[279]  In Roy
v. British Columbia (Attorney General) (2005), 251 D.L.R. (4th) 233 (B.C.C.A.), Southin J.A. set out the following
four propositions relating to an action against officers where a man died from
alcohol poisoning shortly after being placed in police custody:

1.      A
peace officer owes a duty to his prisoner to take reasonable care for the
prisoner’s safety but he is not an insurer.

2.      “[A]n
error of judgment may, or may not, be negligent; it depends on the nature of
the error. If it is one that would not have been made by a reasonably competent
professional man professing to have the standard and type of skill that the
defendant held himself out as having, and acting with ordinary care, then it is
negligent. If, on the other hand, it is an error that a man, acting with
ordinary care, might have made, then it is not negligence.” [Whitehouse v.
Jordan, [1981] 1 All E.R. 267 (C.A.) at 281, adopted by Craig J.A. in Smith
v. British Columbia (Attorney General) (1988), 30 B.C.L.R. (2d) 356
(B.C.C.A.) at 363.]

3.      The
policy of a police force is an important factor in determining the standard of
care a peace officer must observe, but it is not determinative, nor is it to be
treated as if it were a statute imposing civil obligations.

4.      Where,
as here, at issue is the standard of a competent member of a trade or
profession (and the occupation of peace officer falls within that rubric),
evidence of those carrying on that occupation is necessary unless, in the words
which McPherson C.J.M., in Anderson v. Chasney, [1949] 2 W.W.R. 337
(Man. C.A.) at 341, adopted from the American case of Mehigan v. Sheeham,
51 Atlantic Rep. 2nd series, 632, the matter is one of “non-technical matters
or those of which an ordinary person may be expected to have knowledge.”

(at para. 36)

[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.

[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. Camaso’s 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.

[282]  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”.

[283]  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.

[284]  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.

[285]  When it
became apparent that Mr. Camaso was yelling something that Constable
Dukeshire could not understand, Constable Dukeshire made no attempt to obtain
assistance to translate for him or to take into account that it might be the
case or was probably the case that Mr. Camaso might not understand the
instructions that were being given to him.  Despite Mr. Camaso yelling
something at him, Constable Dukeshire did not ask Mr. Camaso to repeat
what he was saying so that Constable Dukeshire could understand it.

[286]  With the
knowledge that Mr. Camaso was a person with a mental disorder or who was
acting in a manner likely to endanger his own safety and the safety of others,
Constable Dukeshire continued to shout commands in a very loud voice rather
than attempting to use calming tones to assure Mr. Camaso that he was not
there to harm him.  While Constable Dukeshire was of the view that Mr. Camaso
was in “maybe scared” and “definitely agitated”, Constable Dukeshire continued
to yell commands at him and advance on him.

[287]  Despite
testifying that he was concerned that Mr. Camaso might get into his
vehicle and drive away, Constable Dukeshire did not radio for assistance and
request a vehicle to come to block off the exit to the parking lot where the
Camaso vehicle was located.

[288]  Despite
Constable Dukeshire stating that Mr. Camaso was “maybe scared” and “definitely
agitated”, Constable Dukeshire took no steps to alleviate the fear of Mr. Camaso.
Constable Dukeshire acted throughout on the assumption that Mr. Camaso
needed “to be controlled” and that he had to “catch him”.  Constable Dukeshire made
no attempt to calm Mr. Camaso down and reassure him that he was not there
to harm him and that he would not be harmed.

[289]  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.

[290]  Instead of
waiting for other officers to arrive, Constable Dukeshire advanced on Mr. Camaso
with his gun drawn.  The step to have been taken and the step that would have
been in accordance with his training, would have seen Constable Dukeshire
maintaining his distance and waiting for another officer to arrive so that
either Constable Dukeshire could cover for that other officer while that
officer subdued Mr. Camaso by handcuffing him or Constable Dukeshire could
have been covered by the other officer who arrived.  Acting against the Policy
in effect, Constable Dukeshire advanced on Mr. Camaso with his gun drawn,
even though it was his intention to handcuff Mr. Camaso.  Instead of
speaking in calming tones and instead of maintaining his distance from Mr. Camaso,
Constable Dukeshire advanced on Mr. Camaso.

[291]  In his
opinion, Sergeant Horsley was of the view that Constable Dukeshire could have “given
ground” instead of advancing.  This would have further indicated to Mr. Camaso
that Constable Dukeshire meant him no harm and he had no reason to be afraid of
Constable Dukeshire.  Although the training of Constable Dukeshire was to
create as much space as possible between himself and Mr. Camaso, Constable
Dukeshire advanced on Mr. Camaso.

[292]  Despite
his obligation to protect others from any actions of Mr. Camaso which
would likely endanger their safety, Constable Dukeshire had absolutely no idea
where Constable McNeil, Constable Murphy and Mr. Morris were located.
Constable Dukeshire did not take the fraction of a second required to ascertain
whether they or others were in the vicinity either to see that no one else was
in potential danger or to see when he might expect the assistance of Constable
McNeil or Constable Murphy.

[293]  While he
was aware that the Department Policy was to maintain “cover” on Mr. Camaso
so that the next officer could arrive and handcuff Mr. Camaso, Constable
Dukeshire did not wait for the arrival of either Constable McNeil or Constable
Murphy, even though he believed that they were close.

[294]  Despite
the fact that a “warning shot” might have sufficed in the situation, a warning
shot was not fired.

[295]  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.

[296]  Though
Constable Dukeshire was attempting to back up quickly, it did not occur to him
that turning and running away from Mr. Camaso was a reasonable
alternative.  Constable Dukeshire had already observed that he could run much
more quickly than Mr. Camaso, but he failed to follow that reasonable
alternative when Mr. Camaso ran out from behind his vehicle with a weapon
or weapons in his hands.

[297]  While
Constable Dukeshire later stated that there was no cover for him, that view
appears to have been based on an assumption that Mr. Camaso had a gun.  Even
leaving aside the small trees to his left, Constable Dukeshire could have
sought cover in the school playground area where there was a jungle gym climbing
frame.

[298]  Constable
Dukeshire went immediately to the use of a firearm without considering whether
there were alternatives available to him.  In particular, he did not activate
the police baton that he had with him.

[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.

[303]  Having
reached those conclusions, the question which arises is whether I can also
find that Constable Dukeshire was guilty of “gross negligence” so that, in
addition to finding Saanich to be vicariously liable for his actions, I can
also find Constable Dukeshire liable for the damages suffered by the
Plaintiffs.

[304]  Pursuant
to s. 21(3)(a) of the Police Act, no action for damages lies
against a police officer for anything done in the performance of his or her
duty or in the exercise of his or her power.  However, this provision is not a
defence if “the police officer … has, in relation to the conduct that is the
subject matter of action, been guilty of dishonesty, gross negligence or
malicious or wilful misconduct …”.  There is no definition of “gross
negligence” or “wilful misconduct” under the Police Act.  In Doern v.
Phillips (Public Trustee of) (1994), [1995] 4 W.W.R. 1 (B.C.S.C.),
Kirkpatrick J., as she then was, stated:

In the absence of any clear legislative intent to define the
concept of gross negligence, it should be given its plain meaning as it has
developed under the common law. The classic test for gross negligence was
reiterated by the Supreme Court of Canada in Walker v. Coates, [1968]
S.C.R. 599. Ritchie J. referred, at p. 601, to the Court’s earlier
decision in McCulloch v. Murray, [1942] S.C.R. 141, where Duff C.J.C.,
at p. 145, had defined gross negligence as:

All these phrases, gross
negligence, wilful misconduct, imply conduct in which, if there is not
conscious wrongdoing, there is a very marked departure from the standards by
which responsible and competent people in charge of motor cars habitually
govern themselves. [emphasis by Ritchie. J.]

The definition of “gross negligence” was also discussed in
the context of “gratuitous passenger” cases in Ogilvie v. Donkin, [1949]
1 W.W.R. 439 (B.C.C.A.). O’Halloran, J.A. held, at p. 441:

…a rational test for deciding
whether negligence is “gross” (within the meaning of the gratuitous passenger
section) is the magnitude of the foreseeable risks in the particular circumstances.

The failure to take care develops
into gross negligence within the meaning of the statute, when it must be plain
the magnitude of the risks involved are such that, if more than ordinary care
is not taken, a mishap is likely to occur in which loss of life, serious injury
or grave damage is almost inevitable.

(at pp. 28-29)

[305]  In Radke
v. S.(M.) (Litigation guardian of), (2005), 48 B.C.L.R. (4th) 178 (S.C.), Bennett J., as she then was, stated in
this regard:

Gross negligence is not defined in the statute.  The
difference between negligence, gross negligence and criminal negligence is
difficult to discern.  Gross negligence has been called “a very great
negligence” (see Studer v. Cowper (next friend of), [1951] S.C.R. 450).  It
is more than ordinary negligence, but less than criminal negligence.  See R.
v. Tutton, [1989] 1 S.C.R. 1392.

In assessing whether Constable Kurtz’s degree of negligence
amounted to gross negligence, the standard of “a very marked departure” from
the standard of care of the reasonable police officer may be applied (see McCulloch
v. Murray, [1942] S.C.R. 141).  All of the circumstances must be
considered.

(at paras. 92-93)

[306]  In Doern,
supra, Kirkpatrick J. stated that the definition of gross
negligence was not rigid.  Rather, a finding of gross negligence reflects the
degree to which the conduct falls below the appropriate standard of care so
that, where the standard of care is very high, the standard of gross negligence
is anything less than ordinary care, whereas particularly egregious conduct may
be required where the standard of care is low or the risks very minor.

[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.

[308]  Pursuant
to s. 21(4)(a) of the Police Act, Saanich is vicariously liable for
the tort committed by Constable Dukeshire: Insurance Corp. of British
Columbia v. Vancouver (City) (1997), 38 B.C.L.R. (3d) 213 (S.C.) where the
City was found to be vicariously liable for the negligence of its police
officers, even though there was no finding of gross negligence.

DAMAGES AVAILABLE TO THE PLAINTIFFS

(a)      General Damages

[309]  The
Plaintiffs are not entitled to recover damages for grief, mental distress or
pain and suffering: Ruiz v. Mount Saint Joseph Hospital, [2001] B.C.J.
No. 514 (C.A.).  In their submissions, the Plaintiffs “accept that this
Court is bound by current authority and submit that Ms. Camaso and her
daughter, Christine, are each entitled to about $35,000 for this head of
damages, although they submit that such amounts fail to adequately recognize
the magnitude of the devastating loss that has been suffered”.  Compensation
under the Act is available for wrongful death that comes as a result of
a police shooting: Cretzu v. Lines, [1941] 2 D.L.R. 413 (B.C.S.C.); and
Teece v. Honeybourn (1974), 54 D.L.R. (3d) 549 (B.C.S.C.).  The amounts
awarded in those decisions were nominal.  After reviewing the decisions which
have provided for general damages, I award Ms. Camaso $25,000 and I award
her daughter $35,000.

(b)      Special Damages

[310]  I am
satisfied that Ms. Camaso is entitled to recover funeral expenses pursuant
to s. 3(9)(b) of the Act.  I find those reasonable expenses to be $8,912.40.

[311]  Counsel
also requests the cost of legal representation at the Coroner’s Inquest.  The
Plaintiffs submit that this was a reasonably foreseeable consequence of the
death of Mr. Camaso because the Coroner’s Act, R.S.B.C. 1996,
c. 72, mandates an inquest whenever a person dies while in the custody of
a peace officer.  I am satisfied that the cost of legal representation at the
Inquest should not be recoverable.  First, no cost has been incurred as no
account has been rendered.  Second, the Act makes no provision for such costs
to be paid.  In this regard, s. 3(2) allows damages “in proportion to the
injury resulting in the death to the parties …”.  I cannot conclude that
legal costs of representation at an Inquest can be said to be “resulting from
the death” of Mr. Camaso.  I am satisfied such costs are too remote.  Third,
s. 3(9) of the Act sets out the special damages that may be
awarded.  By specifically including “any medical or hospital expenses” and “reasonable
expenses of the funeral and the disposal of the remains of the deceased person”,
the Legislature must be taken to have limited special expenses to those categories
of special expenses.

(c)      Aggravated Damages or Punitive Damages

[312]  The
Plaintiffs cannot maintain an action for aggravated damages: Campbell
Estate v. Read, [1988] 3 W.W.R. 236 (B.C.C.A.) where Wallace J.A.
stated:

Circumstances which may aggravate
the loss or damage sustained by an injured party are personal to that
individual in the same sense as is the pain, suffering and loss of amenities
experienced by the injured party.  Such loss is not an injury of the kind dependents
sustain as a “result of the death of the deceased”.  I would … find the
plaintiff may not maintain a claim for aggravated damages pursuant to the Family
Compensation Act.  (at p. 239).

[313]  As damages
that are in “proportion to the injury resulting from the death to the parties
respectively for whose benefit the action has been brought” are described under
the Act and because punitive damages are not damages proportionate to
the injury resulting from the death, punitive damages are also not available
under the Act: Allan Estate v. Co‑operators Life Insurance Co.
(1999), 62 B.C.L.R. (3d) 329 (C.A.).

[314]  In Baillargeon
v. Clemons, [1996] B.C.J. No. 827 (C.A.), it was stated that exemplary
or punitive damages could only be awarded if the police officer had acted in a “malicious
and high-handed” way, or in a way that was “malicious or vindictive” (at
para. 7).  I can make no such finding in this case.

(d)      Loss of Services

[315]  In Ruiz
v. Mount Saint Joseph Hospital, supra, the following statements were
made by the Court:

In considering the loss of services by a parent it may well
be appropriate to use a replacement cost approach.  However, not all injuries
for which compensation is to be paid under the Family Compensation Act can be
categorized as loss of a service.  And not all losses can be valued by the
replacement approach.  The appropriate valuation method to apply to a
particular loss must be determined on a case by case basis.  The character or
type of injury must be determined before the appropriate valuation method can
be selected to assess the loss resulting from that injury. (at para. 69)

Even if one approaches the assessment of damages from the
perspective of lost services, as opposed to lost anticipated pecuniary
advantage, no logical reason was provided for refusing to take into account the
value of the benefit reasonably anticipated from lost services in estimating
their value.  Common experience suggests that services, like material products,
can be valued on the basis of the benefit they provide in the form of added
income-earning capacity, as well as on the basis of their cost of production.
The appropriate method of economic valuation depends on the circumstances.
Valuation, like assessment of damages, is a matter of judgment, not strict
adherence to rules.  No authority was cited to support the proposition that
regard cannot be had for the anticipated benefit in valuing lost services.

It is important, however, to note that the choice of an
appropriate valuation method should not lead to a mechanical application of
actuarial figures and the assumptions on which they are based.  An element of
judgment will always be involved in the assessment as Mr. Justice Dickson
explained in considering a fatal accident claim in Lewis v. Todd, [1980]
2 S.C.R. 694 at 708-9:

The award of damages is not simply
an exercise in mathematics which a judge indulges in, leading to a “correct”
global figure.  The evidence of actuaries and economists is of value in
arriving at a fair and just result.  That evidence is of increasing importance
as the niggardly approach sometimes noted in the past is abandoned, and greater
amounts are awarded, in my view properly, in cases of severe personal injury or
death.  If the Courts are to apply basic principles of the law of damages and
seek to achieve a reasonable approximation to pecuniary restitutio in
integrum expert assistance is vital.  But the trial judge, who is required
to make the decision, must be accorded a large measure of freedom in dealing
with the evidence presented by the experts. If the figures lead to an award
which in all the circumstances seems to the judge to be inordinately high it is
his duty, as I conceive it, to adjust those figures downward; and in like
manner to adjust them upward if they lead to what seems to be an unusually low
award. [emphasis added]

(at paras. 75-77)

[316]  Damages
awarded under this heading are to compensate family members for the loss of the
unpaid services of a deceased in order to replace the services performed to
enable the claimants to maintain the standard of living they enjoyed prior to
the death.

[317]  Dr. Geoffrey
Young was qualified as an expert to provide an opinion regarding the value of
lost housekeeping services.  Dr. Young estimated the value of lost
housekeeping services for Christine Camaso as $35,000 and for Ms. Camaso
in the range between $238,400 and $396,200.

[318]  I find
that the needs of the family for housekeeping services prior to the death of Mr. Camaso
were modest, as were their financial means.  The submission of the Crown is that
an award under this head of damages should be modest in keeping with the
principle that a plaintiff under the Act ought not to be in a better
position than he or she would have been in financially had the deceased
survived.  It was the submission of the Crown that an appropriate valuation for
loss of housekeeping services would be in the region of $70,000 and for loss of
child care services in the range of $30,000.

[319]  At her
Examination for Discovery, Ms. Camaso stated that Mr. Camaso provided
approximately 2-3 hours per week of housecleaning and approximately two hours
per week in meal preparation.  She also stated that Mr. Camaso took care
of their daughter on weekends when Ms. Camaso was at work.

[320]  In his December
16, 2008 opinion, Dr. Young provided his opinion regarding the damages
suffered as a result of the loss of household and homemaking services.  In
formulating his opinion, Dr. Young did not have information about the time
that Mr. Camaso spent in carrying out household services or about the time
he would have spent in the future.  Therefore, Dr. Young based his opinion
on the average time spent on household work as set out in a Statistics Canada
sample survey: The General Social Survey on Time Use.  Dr. Young
calculated the present value of care values for the period between the date of
the death of Mr. Camaso and the valuation date at $69,400 and the present
value of future services and care provided by Mr. Camaso for the remainder
of his life, absent death at $356,403 or $425,800 in total.  Dr. Young
calculated the total loss to Christine Camaso on the date of the death of Mr. Camaso
to her 19^th birthday as being approximately $35,000.

[321]  Because he
did not have the figures available, Dr. Young estimated the number of
hours that Mr. Camaso would have provided to the family in terms of
housework using the average number of hours at 4.4 hours per day.
However, the testimony of Ms. Camaso was that Mr. Camaso spent
approximately 30 minutes a day doing his household tasks.  Saanich points
out that Mr. Camaso had no yard duties, would cook some meals but not on a
day-to-day basis, and that laundry was done with the use of machinery.  However,
I cannot conclude that the Camasos would always have lived in a
two-bedroom apartment.

[322]  Taking
into account the uncertainties attached to this question and the changes that I
must make to the projections provided by Dr. Young, I  am satisfied
that the amount available for loss of services should be set at $100,000,
$15,000 for Christine Camaso and $85,000 for Ms. Camaso.  I assess
one-tenth of each of those amounts as the loss of services up to and including
the Trial and the remainder for the loss of future services.

(e)      Loss of Financial Support

[323]  Dr. Young
was also qualified as an expert to provide an opinion regarding the
determination of lost income to Ms. Camaso and her daughter as a result of
the death of Mr. Camaso.  His opinion was based on the assumption that Mr. Camaso
would have continued to upgrade his education in preparation for entering into
an apprenticeship program, would have started working as an apprentice in
January 2006, would have completed upgrading his education and obtained a trade
certificate by age 40 (October 2010), and would not have worked beyond
age 65.

[324]  It was the
opinion of Dr. Young that the net loss to Ms. Camaso and her daughter
was estimated to be approximately $14,400 from the date of his death to March 30,
2009 when the evaluation was done, and $381,600 in the future.  That latter
figure was made up of $59,519 to Christine Camaso and $322,069 to Ms. Camaso.

[325]  I am
satisfied that not all of the assumptions made by Dr. Young are supported
by the evidence.  First, the evidence was that Mr. Camaso was earning $15
an hour, and not $16 an hour.  Second, I cannot be satisfied that there
was a realistic possibility that Mr. Camaso would have been in a position
to upgrade his education so that he could enter a trades program.  In this
regard, he had been unsuccessful in completing the courses that he had
undertaken at Camosun College.  I am not able to conclude that Mr. Camaso
would have obtained his trade certificate by age 40.

[326]  Taking
into account the uncertainties outlined above, I accept the submissions
for Saanich.  I set the loss sustained by the Plaintiffs for loss of financial
support is $140,000, $20,000 for Christine Camaso and $120,000 for Ms. Camaso.
I assess the loss of financial support for Ms. Camaso up to the date
of the Trial at $10,000, with the sum of $110,000 for future loss of financial
support.

(g)      Loss of Care and Guidance

[327]  Awards for
loss of care and guidance are modest, and are dependent upon claimants
demonstrating that they have been deprived of the reasonable expectation of
receiving care and guidance as a result of a death.  At the time of her father’s
death, Christine Camaso was three.  Infant children will generally receive
awards on the higher end of the range available, older children tend to receive
less, and adults do not receive such awards unless they can prove an
out-of-the-ordinary dependence on the deceased.  I have set the award available
for Christine Camaso for loss of care, guidance and affection at $35,000.  Mr. Camaso
was a loving father and I am satisfied that his daughter will greatly miss his care,
guidance and affection as she grows older.

[328]  I am
satisfied that an award for loss of care and guidance is not available to Ms. Camaso.
No evidence was presented which would allow me to conclude that Ms. Camaso
had an out-of-the-ordinary dependence on Mr. Camaso.  The evidence before
me indicates that Ms. Camaso had her own source of income.

(h)      Loss of Inheritance

[329]  The
Plaintiffs submit that an award for the loss of inheritance should be made to
Christine Camaso.  The Plaintiffs submit that “this typically is a modest
amount”, and should be in the range of $10,000.  In opposition, the Crown
submits that the evidence suggests that it was unlikely that Mr. Camaso
would have amassed an estate to be bestowed on his daughter had he survived as
the family was not accumulating any significant savings.  My assumption is that
the estate of Mr. Camaso would have gone to Ms. Camaso and only to
his daughter if his wife predeceased him.  However, I am satisfied that
Mr. Camaso was a loving parent and that he would have made provision in
his will for some inheritance available for his daughter.  Taking into account
the contingencies in this regard, I award $10,000 to Christine Camaso relating
to the loss of inheritance that she will experience as a result of the untimely
death of her father.

SUMMARY

[330]  The claims
against Derek Charles Egan, Tara McNeil, Kathleen Murphy, Derek Morris and Her
Majesty the Queen in the Right of the Province of British Columbia are
dismissed.

[331]  I find
that Constable Dukeshire was grossly negligent.  In accordance with s. 21(4)(a)
of the Police Act, the Corporation of the District of Saanich is
vicariously liable for the acts of Kristopher Dukeshire.  Judgment in favour of
Ms. Camaso against Kristopher Dukeshire and the Corporation of the
District of Saanich is awarded  in the amount of $238,912.40, made up as
follows:

(a)   general damages                             $25,000.00;

(b)   special damages                                $8,912.40;

(c)    loss of services                                $85,000.00;

(d)   loss
of financial support                  $120,000.00.

[332]  Judgment
in favour of Christine Camaso against Kristopher Dukeshire and the Corporation
of the District of Saanich is granted in the amount of $115,000, made up as
follows:

(a)   general damages                             $35,000.00;

(b)   loss of services                                $15,000.00;

(c)    loss of financial support                    $20,000.00;

(d)   loss of care and guidance                 $35,000.00;

(e)   loss
of inheritance                            $10,000.00.

[333]
The parties will be at liberty to speak to the question of costs.

__________ “Burnyeat J.”______________
Mr. Justice Burnyeat