IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Bergen v. Guliker, |
| 2014 BCSC 5 |
Date: 20140106
Docket: M100774
Registry:
Vancouver
Between:
Inna
Bergen
Plaintiff
And
Gerald
Guliker, deceased, The Minister of Public Safety and Solicitor General of British
Columbia, Her Majesty the Queen in right of Canada as represented by The
Attorney General of Canada
Defendants
And
Insurance
Corporation of British Columbia
Third
Party
And
The
Minister of Public Safety and Solicitor General of British Columbia, replaced
and now known as the Minister of Justice and Attorney General of British
Columbia
Further
Third Parties
–
and –
Docket: M101668
Registry: Vancouver
Between:
Dmitriy
Igans and Alla Kazavcinska
Plaintiffs
And
Gerald
Guliker and The Estate of Gerald Guliker, deceased, and The Attorney General of
Canada and The Minister of Public Safety and Solicitor General for The Province
of British Columbia on behalf of Her Majesty the Queen in Right of the Province
of British Columbia
Defendants
And
Insurance
Corporation of British Columbia
Third
Party
–
and –
Docket: S101174
Registry: Vancouver
Between:
Inna
Bergen
Plaintiff
And
Gerald
Guliker, deceased, The Minister of Public Safety and Solicitor General of
British Columbia, Her Majesty the Queen in right of Canada as represented by
the Attorney General of Canada
Defendants
Before:
The Honourable Mr. Justice Savage
Reasons for Judgment
Counsel for the plaintiff, Inna Bergen: | M.J. Slater QC and J.A. Pankiw-Petty |
Counsel for the plaintiffs, Dmitriy Igans and Alla
Counsel for the defendants, The Minister of Public Safety |
W.M. Belanger
D. Kwan S. Eustace and E. Louie |
Counsel for the third party, ICBC: | D.C. Quinlan |
No other appearances |
|
Place and Date of Trial: | Vancouver, B.C. November 25-29, 2013 December 2-6, 2013 |
Place and Date of Judgment: | Vancouver, B.C. January, 6, 2014 |
Table of Contents
III. No Action Lies Against Canada
IV. Background Facts and Evidentiary Issues
(a) Credibility
of the RCMP officers
The law on assessing credibility
(i) The
speed of the RCMP vehicles
(ii) Did
the RCMP lose sight of Mr. Guliker after Bustin Road?
(iii) Why
Constable Brand was the lead vehicle
(iv) Constable
Brands conversation with Wendy Guliker
A. The
position of the vehicles
B. The
content of the conversation
(v) The
BOLF or Be On the Lookout For
(vi) Could
Mr. Guliker flee across the fields?
(b) The
Cause of the Collision
(c) RCMP
knowledge prior to chase
(i) Information
available to the RCMP as a whole
(ii) Actual
knowledge of Constables Huff and Brand.
(d) The
RCMP plan for dealing with Mr. Guliker
Analysis – Does a
duty of care exist in this case?
(iii) Analysis
– Did the RCMP breach the required standard of care?
VI. Apportionment of Liability
(b) The position of the
parties
(d) Apportionment
in this case
I. Introduction
[1]
These actions concern, inter alia, the decisions and actions of
the Royal Canadian Mounted Police (the RCMP) prior to a high speed collision at
approximately 2:00 p.m. on August 10, 2008 on Ferry Island Road (also known as
Rosedale Ferry Road) near Agassiz, B.C. which resulted in two fatalities (the
Collision).
[2]
The plaintiff, Inna Bergen, was a passenger in a vehicle driven by her
husband, Viktor Bergen. Also in that vehicle were the Bergens three year old daughter,
Emily, and their two house guests, Dmitriy Igans and Alla Kazavcinska, who are
the other two plaintiffs in these actions.
[3]
Mr. Bergen was driving a 2004 GMC Envoy at a low rate of speed westbound
on Ferry Island Road when it was struck head on by a 2004 Pontiac Montana that
was travelling eastbound at a high rate of speed and had crossed over the
center line into the westbound lane. This vehicle was driven by Gerald Guliker.
[4]
Mr. Bergen and Mr. Guliker died at the scene of the Collision.
[5]
Prior to the Collision, it was known that Mr. Guliker was suicidal, had
stated an intention to jump into traffic to kill himself, and was a flight risk.
When the RCMP first approached Mr. Guliker, he was parked at a chicken farm on
Bustin Road. On sighting the RCMP, Mr. Guliker fled north on Bustin Road at a
high rate of speed.
[6]
The RCMP followed Mr. Guliker reaching speeds which at times were more
than double the speed limit of 50 kilometres per hour (kph). The time from when
Mr. Guliker saw the RCMP and fled to the Collision was approximately two
minutes. The distance covered by the vehicles in that time was less than two
kilometres. Whether this constituted a chase or pursuit is an issue in this
case.
[7]
The plaintiffs say that, in the circumstances, the RCMP owed a duty of
care to other users of the roadway, such as Mr. Bergen and the passengers in
his vehicle, and that the decisions and actions of the RCMP breached that duty
of care and caused the Collision. As such, the plaintiffs submit that the RCMP
are at least partly liable for the damages suffered by the plaintiffs.
[8]
The defendants, the Minister of Public Safety and Solicitor General of
British Columbia, replaced and now known as the Minister of Justice and
Attorney General of British Columbia, and the Attorney General of Canada, deny
(1) that Mr. Guliker was being pursued or chased by the RCMP at the time of the
Collision, and (2) that the RCMPs actions in respect of Mr. Guliker were
negligent.
[9]
The defendants say that while the RCMP owes a general duty to protect
the public, there was no private law duty of care owed to members of the
public, such as the plaintiffs, prior to the alleged pursuit. The defendant
agrees, however, that the RCMP does owe a duty of care to persons using the
roadway when a pursuit is underway. That being said, the defendants argue that
no pursuit occurred here.
[10]
If a duty of care does exist, the defendants say, in the alternative,
that the decisions and actions of the RCMP met the required standard of care.
In the further alternative, the defendants say that if the RCMP did breach the
standard of care then their actions did not cause the Collision.
[11]
Mr. Gulikers liability for the Collision is not disputed. The issue is
whether the defendants are also liable for the Collision and the apportionment,
if any, of liability between Mr. Guliker and the defendants.
[12]
The Insurance Corporation of British Columbia (ICBC) is a third party
to this proceeding.
II. Disposition
[13]
I have concluded that (1) the RCMP were negligent, (2) their negligence
was a cause of the Collision, and (3) liability should be apportioned 20% to
the RCMP and 80% to Mr. Guliker.
III. No Action Lies against Canada
[14]
Before addressing the substance of this case, I will briefly dispose of
an issue raised by the defendants. The defendants assert that I should dismiss
the claim against Her Majesty the Queen in Right of Canada, as represented by
the Attorney General of Canada. At trial the plaintiff conceded to the
defendants position on this issue. I agree.
[15]
RCMP officers are servants of the federal Crown and, generally, Canada
is liable for any tort committed by a federal Crown servant: ss. 3, 36 of the Crown
Liability and Proceedings Act, R.S.C. 1985, c. C-50 [CLPA]. However,
no action lies against Canada unless an action exists against that federal
Crown servant personally: s. 10 of CLPA.
[16]
There is an agreement between the Province of British Columbia and the
government of Canada, pursuant to s. 14 of the Police Act, R.S.B.C.
1996, c. 367 and s. 20 of the Royal Canadian Mounted Police Act,
R.S.C. 1985, c. R-10 [RCMP Act], authorizing the RCMP to carry out the
duties of a provincial police force. By operation of this agreement the RCMP is
deemed to be a provincial police force and every RCMP officer is deemed to be a
provincial constable: s. 14(2) of the Police Act.
[17]
A provincial constable cannot be held personally liable for acting in
the performance of his or her duties and in the exercise of his or her powers
as a provincial constable: s. 21 of the Police Act. Rather, the
provincial Minister of Public Safety (now the Minister of Justice) is liable
for torts committed by provincial constables: s. 11 of the Police Act
[18]
As no action lies against the RCMP officers personally when acting in
their capacity as provincial constables, pursuant to s. 10 of the CLPA there
is no cause of action against Her Majesty in Right of Canada or the Attorney
General of Canada: see Roy v. British Columbia (Attorney General), 2005
BCCA 88 at paras. 5-9.
[19]
As such, my findings regarding liability apply only to the Minister of
Public Safety and Solicitor General of British Columbia, replaced and now known
as the Minister of Justice and Attorney General of British Columbia.
IV. Background Facts and Evidentiary Issues
(a) Credibility of the RCMP officers
[20]
The plaintiffs and ICBC say that a major issue in the case is the
credibility of the RCMP officers who testified concerning their actions before
the Collision. Regrettably, the evidence compels me to agree.
[21]
Constable Huff was the lead investigator in this matter. At the time of
these events he had two years experience in general policing. Following these
events he was reassigned to Grise Fiord and recently Iqaluit, Nunavut. The
other officer in question is Constable Brand.
[22]
There are six specific areas of evidence given by these two RCMP
officers where their credibility is of particular concern.
[23]
First, I briefly outline the principles that guide me in assessing the
credibility of these two officers.
The law on assessing credibility
[24]
In gauging a witness evidence, a court may, inter alia, consider
the factors summarized by Thomson J. in Unique Tool & Gauge Inc. v.
Impact Tool & Mould Inc., [2002] O.J. No. 681 (S.C.J.) at para. 121:
[121] …[The witness]
ability and opportunity to observe; his appearance and manner while testifying;
his power of recollection; any interest, bias or prejudice he may have; any
inconsistencies in his testimony and, the reasonableness of his testimony, when
considered in the light of its harmony with the preponderance of the
probabilities that the evidence was credible, believable and reliable.
Justice Thomsons credibility analysis was upheld on
appeal: Unique Tool & Gauge Inc. v. Impact Tool & Mould Inc., 2003
CanLII 16539 (O.N.C.A)
[25]
A witness interests are a relevant factor to consider in assessing
credibility. However, as Rowles J.A. said in R. v. R.W.B., 24 B.C.A.C.
1, [1993] B.C.J. No. 758 at para. 28:
[28]
Whether a witness has
a motive to lie is one factor which may be considered in assessing the
credibility of a witness, but it is not the only factor to be considered. …it
is essential that the credibility and reliability of the [witness] evidence be
tested in the light of all of the other evidence presented.
[26]
In Ng v. Ng, 2011 BCSC 192, Cullen J., as he was then, rejected
the evidence of one witness as flawed because it relies on the mechanism of
coincidence, it includes improbable and elaborate explanations to explain away
telling circumstances and, in connection with [certain evidence] it relies on a
manufactured foundation (para. 326).
[27]
In R. v. Béland, [1987] 2 S.C.R. 398, McIntyre J., writing for
the majority, said at 418-419:
…in the resolution of disputes
in litigation, issues of credibility will be decided by human triers of fact,
using their experience of human affairs and basing judgment upon their
assessment of the witness and on consideration of how an individuals evidence
fits into the general picture revealed on a consideration of the whole of the
case.
[28]
In Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (BCCA),
OHalloran J.A. observed at 357:
The credibility of interested
witnesses, particularly in cases of conflict of evidence, cannot be gauged
solely by the test of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably subject [the
witness] story to an examination of its consistency with the probabilities
that surround the currently existing conditions. In short, the real test of the
truth of the story of a witness in such a case must be its harmony with the
preponderance of the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions.
[29]
How does a trier of fact assess what evidence is in harmony with the preponderance
of the probabilities? As Ryan J.A. recently stated in her concurring reasons
in R. v. Sue, 2011 BCCA 91 at para. 47:
[47] Doubtless, a skilled
liar or a good actor can easily feign sincerity. But it is also the case that
most people of average intelligence can tailor a story to fit the circumstances
if they put their minds to it. Thus, a trier of fact will test a story for both
its logic and, with the appropriate cautions, the manner in which it was told.
(i) The speed of the RCMP vehicles
[30]
A critical part of the RCMP officers evidence concerned the speed at
which they drove when they followed Mr. Guliker.
[31]
The evidence is that the RCMP officers first observed Mr. Gulikers
vehicle while travelling north on Bustin Road. They then followed, to use a
neutral term, Mr. Gulikers vehicle north on Bustin Road to where it intersects
with Ferry Road. Mr. Gulikers vehicle turned right, or east, onto Ferry
Road and then left, or north, onto Ferry Island Road where the Collision
occurred. The RCMP officers took the same route.
[32]
While following Mr. Guliker and up until the Collision, both Constables
Huff and Brand participated in a radio conversation with dispatch. During this
time, the highest speed the RCMP officers reported was 60 kph along Ferry Road.
Constables Huff and Brand both stated over the radio that they were not in
pursuit of Mr. Guliker. Constable Huff said they were just following from a
distance.
[33]
The GPS evidence indicates that Constable Huffs vehicle, which was
following Constable Brands vehicle, exceeded speeds of 100 kph. On Bustin Road,
Constable Huff is recorded as going 44 kph at 13:54:11, 70 kph at 13:54:25, 97 kph
at 13:54:35, 91 kph at 13:54:44, and 67 kph at 13:54:54, just before the
intersection of Bustin Road and Ferry Road. On Ferry Road the GPS logs record Constable Huffs
speed as 113 kph at 13:55:09. On Ferry Island Road his speed is recorded as 78 kph
at 13:55:23 and as 101 kph at 13:55:31.
[34]
The GPS evidence indicates that Constable Brands vehicle, which was
leading, exceeded speeds of 100 kph too. On Bustin Road, Constable Brand is
recorded as going 58 kph at 13:54:14, 78 kph at 13:54:29, 88 kph at 13:54:38,
88 kph at 13:54:47 and 27 kph at 13:54:56, right at the intersection of Bustin
Road and Ferry Road. On Ferry Road the GPS logs record Constable Brands speed
as 103 kph at 13:55:10. On Ferry Island Road his speed is recorded as 92 kph at
13:55:24 and as 94 kph at 13:55:33.
[35]
There was no issue taken with the speeds recorded by the GPS logs
maintained by the RCMP.
[36]
A significant element in determining the credibility of the RCMP
officers testimony is the version of the events they gave during the IHIT investigation,
the day after the Collision. This evidence was given before the officers became
aware of the speeds recorded for their vehicles by the GPS logs. The officers
maintained that what they told the IHIT investigators was accurate.
[37]
Constable Huff was cross-examined regarding his reporting of speeds. Part
of that cross-examination is as follows:
Q Now, you have been questioned on speed. And
we’ve got the GPS at tab 9 of Exhibit 1, the red one. If you look at tab 9,
that first — you are UF1B09; correct?
A Yes
Q Right. Okay. So we see that at 13:54:25 you’re
going 70 kilometres per hour and 10 seconds later at 13:54:35 you’ve
accelerated to 97 kilometres per hour?
A Yes
Q You say you never looked at your speed limit?
A Correct.
Q While your speeds speak for themselves, you
say that you were losing ground to Mr. Guliker?
A Yes.
Q And where is it you say you had reached when
he made the right-hand turn at Ferry Road and went out of your view?
A I can’t say for certain, but somewhere
between half and three-quarters of the roadway.
Q Okay. Where are you starting your — where’s
half?
A We could use the GPS here from 70 to 90 we
start losing him, and 97 to 91 [sic] is most likely where I would have lost him
in that area.
Q So somewhere in there you lose him?
A Yes.
Q And you are further away from him, you say,
when you lose visual of him than you were when you first saw him?
A Correct.
Q And you were questioned by IHIT the day after
this incident?
A Yes.
Q If I could ask you to turn to page 11?
A Yes.
Q So you see two-thirds of the way down Constable
Sangara says:
Q No, fair enough. How
far were you from him when he starts to go?
A Oh, I’d say a
couple hundred metres.
That seems correct to you?
A Yes.
Q And then go over to page 12. The middle of the
page Constable Sangara says:
Q Now once you started
to go.
A M’mm-hmm.
Q Do you recall what
your speeds were then.
A No, I don’t believe
so. I know that I [indiscernible] behind Constable Brand. He just — he was
consistent with his speed, because like you said, he didn’t want to push him. And
now at that point I don’t remember what our speeds were. I don’t know what our
speeds were coming up either.
That’s what you told IHIT?
A Yes.
Q And then if you go over to page 13, just about
the middle of the page — well it starts just above:
A Um, I lost sight of
him right after he makes the little left-hand turn on Ferry Road. There’s a
road and there’s gravel.
Q M’mm-hmm.
A And the gravel just
continues on, but after he made that little turn I didn’t see him after that.
Q How far ahead was he
from you at that point?
A Pretty far. Um, I’d
say probably 100 metres. 150. Like at no point did we even get close enough
that I felt where if I didn’t know his licence plate I wouldn’t have been able
to read it because it was really that far back kind of so.
That’s what you told IHIT?
A Yes.
Q So in fact according to this statement you
were closer to Mr. Guliker when he turned the corner at Ferry Road than you
were when you first saw him?
A According to this statement, yes.
Q And this statement was a day after the event?
A Yes.
Q And we know then from the GPS that when you
turned the corner on to Ferry Road you were accelerating up to 113?
A Yes —
Q You tell dispatch that your speed was 60?
A Yes.
Q And as we know, 60 was just a number on the
way through to 113?
A Yes.
Q If you go back to the page 3 of the IHIT
statement about 12 lines up from the bottom it says:
So I update
Chilliwack. I said, you know we’re not in pursuit, our speeds are 60, he’s
flying. He’s going through the stop sign on Ferry Road going — he’s heading
down Ferry. We continue on still no lights and sirens.
That’s what you told IHIT?
A Yes.
Q And then if you go over to page 10, third line
down from the top?
A Yes.
Yeah, he’s
going on Ferry Road. Just blew the stop sign kind of thing. Our speeds are 60. Still
not pursuing. At no point did we ever have our lights or sirens on kind of
thing.
Q That’s what you told IHIT?
A Yes.
Q Constable, was there a reason you didn’t want
IHIT to know the speeds that you and Constable Brand had reached?
A No.
Q Just didn’t come to your mind to tell them the
actual speeds that you were going?
A No. The only speed I made a note of was when
we were doing 60.
Q And the reason you didn’t tell IHIT about the
other speeds is you say they didn’t ask it?
A Correct.
(Cross-examination of Cst. Huff by Mr.
Quinlan, Trial Transcript for Nov. 29, 2013, page 53, line 46 to page 56, line
44)
[38]
At his examination for discovery (XFD), Constable Huff testified as
follows:
Q Now, when you
subsequently gave your statements to the investigating officers, did you advise
them of any speed other than 60 kilometres per hour?
A Im not sure of actual numbers, but I advised
that he was gaining great lengths on us; we couldnt keep up to him.
Q But my question was directed to your speed.
Did you advise or indicate in any of the statements you gave that your speed at
any point in time was more than 60 kilometres per hour?
A No, I dont believe so.
Q And why not?
A It was never brought up.
(XFD of Cst. Huff by Mr. Quinlan,
Oct. 15, 2013, Qs. 725-727)
[39]
Constable Brand drove the lead vehicle north on Bustin Road following Mr. Gulikers
vehicle along the route I have described above. Constable Brand was
cross-examined concerning his IHIT statement where he said of Constable Huff,
he accurately relayed our speed at 60 kilometers an hour. Again due to road
conditions and unfamiliarity, didnt feel it prudent to exceed that.
[40]
Four days after the Collision on August 14, 2008, the RCMP created a
video re-enactment of the route taken by the RCMP officers when following Mr.
Guliker. Constable Brand narrates the video. In his narration, Constable Brand only
notes speeds of 30 kph and 60 kph in describing their following of Mr. Guliker.
Both officers appeared to still be unaware of the GPS recorded speeds at this
time.
[41]
The parties introduced and used several charts and aerial photographs in
their evidence. These charts and photographs show the roadways along which the
events unfolded in this case. It was not suggested that the charts and
photographs are in anyway inaccurate in their depiction of these roadways.
[42]
The right hand turn from Bustin Road to Ferry Road appears to be
approximately 120 degrees. The left hand turn from Ferry Road to Ferry Island
Road appears to be approximately 85 degrees. It is a logical inference that both
Mr. Gulikers and the RCMP vehicles would have had to slow significantly to
navigate these intersections.
[43]
In my opinion, the best evidence of the events on Bustin Road, Ferry
Road, and Ferry Island Road, are the GPS logs and the physical evidence.
[44]
Although the officers denied they were in pursuit, this denial was in
part based on a technical police meaning of the word which requires that all
police vehicle emergency equipment must be deployed (RCMP Operational Manual,
5.4 Emergency Vehicle Operations (Pursuits), s. 2.6). In this case the evidence
is that the emergency equipment was not deployed by either officer.
[45]
That said, it is clear that the police vehicles followed Mr. Gulikers
vehicle at very high rates of speed, at times in excess of 100 kph, in an area
with a 50 kph speed limit. The officers accepted that the GPS logs recorded their
speeds accurately, although they suggested they were unaware of the precise
speeds at the time. Given the route taken and the speeds achieved at various
parts of that route, it is clear that in following Mr. Gulikers vehicle they
had to accelerate quickly in places and decelerate quickly for the required
turns.
[46]
It is also apparent that the officers did not merely follow Mr. Guliker.
They were closing the distance. According to Constable Huffs statement to the
IHIT on August 11, 2008 when he first saw the Guliker vehicle on Bustin Road,
it was a couple of hundred metres ahead of them. When he last saw the Guliker
vehicle it was 100-150 metres ahead. Yet neither Constable Huff nor Constable
Brand advised IHIT that they went in excess of 60 kph.
[47]
Given these omissions I find it more probable than not that Constable
Huff underestimated the amount by which the distance was closing, and Constables
Huff and Brand were mistaken in many of their recollections regarding these
events. Although the officers claimed they lost sight of Mr. Gulikers vehicle,
they both correctly turned left to follow him on Ferry Island Road.
[48]
I find the evidence establishes that the RCMP officers closed the
distance between their vehicles and Mr. Gulikers vehicle while driving along
Bustin Road with Mr. Gulikers vehicle in sight. This fact, along with the
physical evidence of the roadways and the GPS recorded speeds of the RCMP
officers along the route taken, leads me to conclude that Mr. Guliker was
pursued by the RCMP, within the ordinary meaning of the word pursue.
(ii) Did the RCMP lose sight of Mr. Guliker
after Bustin Road?
[49]
Both RCMP officers testified that after Mr. Gulikers vehicle turned
right onto Ferry Road they lost sight of it, and did not regain visual contact with
it until they saw it in a ditch following the Collision.
[50]
In other words, the RCMP claim that they did not see Mr. Gulikers
vehicle when they travelled the roughly 375 m along Ferry Road before turning
left onto Ferry Island Road. From reviewing the video re-enactment, this
appears to be a straight section of road with unobstructed visibility of the
entire stretch.
[51]
In my opinion, the evidence supports a conclusion contrary to the
testimony of both RCMP officers. The officers were able to correctly determine
that Mr. Guliker turned left onto Ferry Island Road. In my opinion it is more
probable than not that the RCMP officers had visual contact with Mr. Gulikers
vehicle along Ferry Road.
[52]
In Constable Huffs IHIT statement, on which he is cross-examined at trial
in the excerpt I reproduced in the previous section, he states I lost sight of
[Mr. Guliker] right after he makes the little left-hand turn on Ferry Road. There’s
a road and there’s gravel. Based on the evidence Constable Huff is describing
the intersection of Ferry Road and Ferry Island Road here, not the intersection
of Bustin Road and Ferry Road. I say this for two reasons.
[53]
First, Constable Huff describes it is a left-hand turn, whereas Mr.
Guliker made a right-hand turn at the intersection of Bustin Road and Ferry
Road.
[54]
Second, he says that there is a road and theres gravel. The RCMP
video re-enactment shows that at the intersection of Ferry Road and Ferry
Island Road you can either follow the roadway to the left or carry straight on,
but the roadway changes from tarmac to gravel if you carry straight on. This is
not the case at the intersection of Bustin Road and Ferry Road, which is a
straightforward t-intersection with the option of turning either left or right
but onto a tarmac road in both cases.
[55]
Alongside these statements of Constable Huff, the physical evidence of
the roadways travelled in this case offers further evidence of whether the
RCMPs assertion that they did not see Mr. Gulikers vehicle along Ferry Road
is credible. I have already found that the RCMP closed the distance from about
200-250 m when they first sighted Mr. Gulikers vehicle and he fled to just
100-150 m when they testified that they last saw his vehicle.
[56]
If this 150 m gap was at the point that Mr. Guliker made a right hand
turn from Bustin Road onto Ferry Road, then Mr. Guliker would have had to cover
the roughly 375 m before turning left onto Ferry Island Road before the RCMP
covered the remaining 150 m along Bustin Road and turned right onto Ferry Road.
[57]
I have already detailed the speeds that the RCMP vehicles were recorded
as travelling along Bustin Road. For Mr. Guliker to have travelled more than 350
m along Ferry Road in a shorter time than the RCMP travelled just 150 m along
Bustin Road, Mr. Guliker would have had to travel at a very significant speed
indeed.
[58]
I find it more probable than not that the RCMP did have visual contact
with Mr. Gulikers vehicle after it turned right from Bustin Road onto Ferry
Road. It is more probable than not that the RCMP had sight of Mr. Gulikers
vehicle as it turned left from Ferry Road onto Ferry Island Road.
(iii) Why Constable Brand was the lead vehicle
[59]
When Constables Huff and Brand determined to proceed down Bustin Road and
approach Mr. Guliker, Constable Brand drove the lead vehicle. At trial
Constable Brand testified that the logic behind him leading, even though
Constable Huff was the lead investigator, was that he had some familiarity
with Mr. Guliker. Specifically, he had had contact with Mr. Guliker two
days earlier on August 8, 2010. The officers testified that they thought this might
prove to be useful upon any interaction with Mr. Guliker.
[60]
Constable Brand was then referred to his testimony on XFD where he
stated that there was no logic to him being the first vehicle to proceed down
Bustin Road. On XFD, Constable Brand testified:
Q We know, as you told Ms. Wishart, that you
took the primary position as between you and constable Huff in terms of the
position of your vehicle, correct?
A Yes.
Q Why did you take the primary position with him
following you?
A Theres really no logic to that decision. It
was, um, a roadside conversation I had with Constable Huff and it boiled down
to do you want to go first or do you want me to go first, and I replied Ill go
first.
Q As youve told us he was the primary
investigator on this incident involving Mr. Guliker, correct?
A Yes.
Q Do you say that he was the person responsible
for coming up with the strategy that was discussed at the Chilliwack Inn?
A Yes.
Q He certainly had more information about the
circumstances of the incident involving Mr. Guliker than you did?
A Yes.
Q And yet you volunteered to be the lead vehicle
as you went down Bustin Road to approach Mr. Guliker?
A That is correct.
(XFD of Cst. Brand by Mr. Quinlan,
March 28, 2013, Qs. 84-89)
[61]
When confronted with this discovery evidence at trial, Constable Brand
accepted that the discovery evidence is true. Constable Brands evidence at
trial is at best a convenient reconstruction.
(iv) Constable Brands conversation with Wendy
Guliker
[62]
Constable Brand testified about a conversation that he had with Wendy Guliker
a few minutes before the events giving rise to the Collision. Both Wendy
Guliker and her daughter, Amanda Redekop, also testified about this
conversation. By all accounts the three of them were at or near the
intersection of Bustin Road and Old Yale Road in their respective vehicles when
this conversation took place.
A. The position of the vehicles
[63]
Early in the trial both Wendy Guliker and Ms. Redekop testified that
Constable Brand had pulled up on the passenger side of their vehicle. Both
vehicles were facing north at the intersection. Their windows were rolled down
and a conversation ensued between Wendy Guliker and Constable Brand. As Ms. Redekop
was seated in the passenger seat next to Wendy Guliker, the conversation
between Wendy Guliker and Constable Brand took place with Ms. Redekop in the
middle.
[64]
Constable Brand testified that while he spoke to Wendy Guliker, he did
so speaking driver to driver with nothing in between them. That is, Wendy
Gulikers vehicle was facing in the opposite direction to Constable Brands
vehicle. Constable Brand was cross-examined on this point and was insistent on
his recollection of the placement of the vehicles. Constable Brand testified
that he was uncertain of the passengers age, who she was, or whether she
overheard the conversation between himself and Wendy Guliker. His version of
the conversation was at odds with that of Wendy Guliker.
[65]
After confirming his evidence regarding the placement of his and
Wendy Gulikers vehicles in cross-examination, Constable Brand was
confronted with his statement made to IHIT shortly after the Collision.
[66]
In the IHIT statement Constable Brand says that Ms. Redekop was in Wendy Gulikers
vehicle, that he pulled up alongside the passenger side of Wendy Gulikers
vehicle, and that the conversation ensued with both Wendy Guliker and her
daughter speaking, at times over each other. In short, according to this
evidence the conversation was not face to face between Constable Brand and
Wendy Guliker, but rather they spoke to each other with Ms. Redekop in between.
Constable Brand initially testified that the IHIT statement was true and that
he reviewed it prior to giving testimony. Constable Brand then said that he did
not review all of the statement before giving his testimony.
[67]
I accept the evidence of Wendy Guliker and Amanda Redekop regarding the
positioning of the vehicles for this conversation. This is consistent with
Constable Brands IHIT statement.
[68]
Ms. Redekop was thus in a very good position to hear the conversation
between Constable Brand and Wendy Guliker.
B. The content of the conversation
[69]
There is significant disagreement between Constable Brand, and Wendy
Guliker and Ms. Redekop concerning some of the contents of that conversation.
[70]
According to Wendy Guliker and Ms. Redekop, Wendy Guliker told Constable Brand
that if Mr. Guliker saw the police vehicles he would run. The major dispute
concerns Constable Brands response.
[71]
According to both Wendy Guliker and Ms. Redekop, Constable Brand said
that
if he runs, well chase him
. Ms. Redekop, who was 17 at the time,
testified in cross-examination that she had a clear recollection of what was
said. Wendy Guliker also testified that Constable Brand made the same
statement.
[72]
Constable Brand testified that he did not say if he runs, well chase
him or any other words to that effect. It was not the kind of thing he would
say.
[73]
The importance of this statement concerns the events that transpired
thereafter. The plaintiffs say that on any reasonable interpretation of the
facts, Mr. Guliker fled upon seeing the police and the RCMP officers chased
him. In other words, what actually unfolded was exactly as Constable Brand stated
would happen a few minutes earlier.
[74]
On this point, I accept the evidence of Wendy Guliker and Ms. Redekop
regarding whether Constable Brand made this statement.
(v) The BOLF or Be On the Lookout
For
[75]
The RCMP officers who testified described a BOLF as a message sent to
other officers to be on the lookout for a certain person or persons.
[76]
The evidence establishes that at 13:21 Constable Huff reviewed and
approved a BOLF regarding Mr. Guliker. The BOLF message read:
Please BOLF Suicidal male, BCL
FFL710, Whi 04, Pontiac Montana, RO Gerald GULIKER, who is arrestable for
Breach, states he is going to jump into traffic to avoid being arrested. Last
known Hwy 1 EB Annis.
[77]
At his XFD, Constable Brand denied knowing whether he received the BOLF.
He testified:
Q You were asked this morning by Ms. Wishart as
to do you recall Constable Huff sending out a BOLF, which is a be on the
lookout for message?
A Thats correct.
Q And the message apparently read,
Please BOLF
suicidal male, BCL, FFL 710, WHI, 04 Pontiac Montana, RO, Gerald Guliker, who
is arrestable for breach. States he is going to jump into traffic to avoid
being arrested. Last known, highway eastbound, Annis.
And that message was apparently
sent out at 13:21. Ive got a couple of questions about that.
You appreciate I was reading
that from page seven of Defendants Document 1.144 is the IHIT investigation,
correct?
A I havent seen this document before.
Q All right. Prior to today and any circumstance
you review the IHIT investigation into the circumstances of these deaths?
A No.
Q All right. In any event, you see where I was
reading from on page seven, correct?
A Yes.
Q And apparently that message was sent out at
13:21 —
A Okay.
Q — by Constable Huff? Do you see thats
whats written here in the IHIT report?
A Yeah, the message was perhaps sent out at the
request of Constable Huff, its done through our dispatch. Um, theyd send it
to all vehicles.
Q Right. And how would that message have been
sent out? Was this one of the ones that would appear on your mobile terminal?
A Thats correct.
Q And you have no recollection of receiving this
message on your mobile terminal as its quoted on page seven in this report?
A No, I dont.
Q And obviously if that message was sent out at
13:21 its one that would have been sent out before you commence your trip down
Bustin Road?
A Yes, thats correct.
Q All right. Mr. Kwan, I havent been able to
locate in the documents the actual message itself. So I leave as a request that
that be produced, please.
(ADDITIONAL INFORMATION REQUESTED)
So as you start down Bustin Road youre not
aware that your supervisor — or the primary investigator who is immediately
behind you has some 20 minutes earlier sent out a BOLF message indicating
someone is suicidal and that hes going to jump into traffic to avoid being
arrested?
A Well we already knew that he was suicidal,
that was the reason for our attendance.
Q That wasnt quite my question. Do you have any
recollection — I think youve already told me you have no recollection of
seeing this message as its set out on page seven of this report indicating
both that Mr. Guliker was suicidal, that he was arrestable for breach, but that
he had also stated that he was going to jump into traffic to avoid being
arrested?
A I dont recollect receiving that message.
Q But at least if it was, and according to this
report it was sent out by Constable Huff who was the primary investigator on
this file?
A Its more likely that it was sent out by our
dispatchers at the request of Constable Huff.
Q All right. Well —
A But yes, it would have been sent out. Who
received it I cant say where, how far or how expansive the message was sent.
Q Let me put it this way; as you start down your
trip on Bustin Road, youre not aware that Constable Huff has information in
his mind where he knows that Mr. Guliker has indicated hes going to jump into
traffic to avoid being arrested?
A Thats fair, yeah.
(XFD of Cst. Brand by Mr. Quinlan, March 28, 2013, Q.
279-292)
Q Okay. So if the meeting at the Chilliwack
Motor Inn occurred at 13.40 you have no recollection whatsoever of Constable
Huff conveying to the other four of you that he has information indicating Mr.
Guliker states hes going to jump into traffic to avoid being arrested?
A I dont recall getting that information.
Q And thats probably something you would
recall, wouldnt you? Thats a pretty serious statement?
A I think so.
(XFD of Cst. Brand by Mr. Quinlan,
March 28, 2013, Q. 298-299)
[78]
At trial Constable Brand testified that his XFD evidence was in error
and that he now remembered receiving the BOLF. Constable Brand said that
following the XFD he reviewed both the XFD transcript and his Occurrence Report.
The Occurrence Report made specific mention of the BOLF. He could not recall exactly
when he reviewed these documents and when his recollection changed.
[79]
At his XFD, however, Constable Brand testified that he had reviewed the same
Occurrence Report which made mention of the BOLF beforehand:
Q Did you review any documents before you came
here today to review your evidence?
A Yes.
Q What documents do you recall reviewing?
A Police officer notes, my prime occurrence
report. The GPS, um printout revealing patrol speed. Thats it.
(XFD of Cst. Brand by Ms. Wishart,
March 28, 2013, Q.247-248)
[80]
At trial Constable Brand denied that if he had known Mr. Guliker was
going to flee after he saw a police vehicle, he would have acted differently. On
cross-examination he was confronted with the following evidence from his XFD:
Q Had you been made privy to the information
that Mr. Guliker was a flight risk if he saw approaching police vehicles, would
you have dealt with the situation any differently than you did as you start
your trip down Bustin Road?
A Had we been made aware of that and had Mr.
Guliker made it very clear that thats what was going to transpire then that
would have been taken into our strategic considerations on the evolving
situation and likely something different would have been utilized.
Q And are you able to give me what differently
might have been done had you been made privy to that information?
A Um, that call likely would have been left up
to the duty NCO or an officer to make. Um —
Q Is that Sergeant Dixon?
A Likely would have been his call. It could
have been the corporal on the watch, may have been his call as well. Um,
regardless of what Mr. Guliker had voiced, if his intention was to flee from
police at some point we still have to go and interact with him.
Q Fair enough. But it would have been an
additional piece of information that would have been helpful to know?
A Definitely would have been used in our
considerations.
(XFD of Cst. Brand by Mr. Quinlan,
March 28, 2013, Q 266-269)
[81]
I find Constable Brands evidence regarding the BOLF to be troubling.
The BOLF is an important piece of evidence about the information that the RCMP
had regarding Mr. Guliker and which informed their subsequent actions. It was
also reviewed and approved by Constable Huff, the lead investigator in relation
to Mr. Guliker and the RCMP officer that followed Constable Brand down
Bustin Road to approach Mr. Guliker.
[82]
The BOLF clearly states that Mr. Guliker is a flight risk or, more
specifically, that he will jump into traffic to avoid being arrested. It is
also undisputed that Constable Brand received the BOLF on the mobile data
terminal in his vehicle. In his Occurrence Report, Constable Brand stated that
he reviewed the BOLF. He also admitted as much at trial.
[83]
Yet at his XFD Constable Brand was adamant that he had no knowledge that
Mr. Guliker was a flight risk despite acknowledging that it would have been a
useful piece of information. Constable Brand stated that he did not recall this
information from the BOLF and it was not conveyed to him at any other point by
Constable Huff.
[84]
On all the evidence that is before me, this is simply not credible. I
reject Constable Brands evidence on this point and accept the evidence
described above that indicates Constable Brand was aware of the information
conveyed in the BOLF, including that Mr. Guliker was a flight risk.
(vi) Could Mr. Guliker flee across the fields?
[85]
One of the defendants theories was that it was impossible to contain
Mr. Guliker at the chicken farm where he was parked.
[86]
The defendants assert this because the fields flanking Bustin Road, in
places at least, were open to and nearly flat with Bustin Road. As such, they
argue that Mr. Guliker could have fled through the fields in his vehicle.
In other words, the roadways did not provide his only avenue of escape.
[87]
At trial Constable Brand adopted his assertion on XFD that the only way
to contain Mr. Guliker would have been to have hundreds of police vehicles
parked bumper to bumper all the way down Bustin Road. On XFD Constable Brand
said:
Q Right. But you say that once he rounds the
corner and gets out of sight from you, he would have been free from any
pressure that perhaps might be applied by you?
A He was free from pressure from the minute he
got in his car and took off.
Q I see. Why was there not an officer stationed
at the junction of Bustin Road and Ferry Road prior to you commencing your trip
down Bustin Road?
A To put an officer at an intersection in
harm’s way in such a manner is just reckless.
Q Why wouldn’t you put a spike belt there?
A Mr. Guliker hasn’t committed an offence
worthy of being spike belted.
Q I see. So there was nothing serious enough in
your mind to warrant closing off one avenue of escape by way of a spike belt?
A If that avenue had been closed off, the
concrete barrier that appeared out of thin air, there were plenty of other opportunities
for Mr. Guliker to take.
Q Right. What were those other opportunities?
A Well as you know, you’ve been to the
property.
Q I have.
A There’s many points along the property line
that become flush or close to with the roadway.
Q Well, in fact, what there is is farm fields,
correct?
A Yes.
Q So what you’re saying is Mr. Guliker might
have gone off road with his vehicle through the farm fields to escape from you?
A I’ve seen it happen before. It’s not nearly
as far-fetched as one might think.
Q In that area?
A That specific area?
Q Yeah.
A No.
Q Okay. And showing you Defendant’s Document
1.23. That’s an aerial view of Bustin Road and Ferry Road, correct?
A Yes.
Q And you’ll see there’s a yellow thumb tack
probably — this is a photocopy — opposite the chicken barn?
A Yes.
Q And that’s where Mr. Guliker was parked?
A That’s correct.
Q And if you look up at the top right-hand
corner of this aerial view we see where the accident occurred because it’s
marked by a second yellow tack, correct?
A Yes.
Q And what you’re saying is Mr. Guliker could
have proceeded through one of these fields that we see in this aerial
photograph to escape you?
A Certainly.
Q And in order to contain Mr. Guliker as you’ve
told Ms. Wishart you would have needed hundreds of officers to do that?
A To absolutely have zero point of exit open to
him it would have taken an immense amount of resources.
Q Well I think your evidence was hundreds of
officers, correct?
A Sure, we’ll go with the literal. Yes,
hundreds.
Q All right. And I take it, what, you would have
had them stationed along Bustin Road every 15 or 20 yards?
A Oh, it would have needed to be closer than
that. They would have needed to be bumper to bumper with PC’s — sorry, police
vehicles all the way down Bustin. You know, this is hectares of land I’m sure
here. Let’s progress it out towards McGrath which isn’t even on the map here.
I’m not sure how many metres of agricultural farmland that would be to control.
That’s just one direction. Could easily go east, again through the farmland,
perhaps double-back to Old Yale Road. Really the possibilities are endless.
Q You’ll agree there’s no roadway off of Bustin
that leads to Ferry Road other than Bustin Road itself.
A Once you’re on Bustin, yeah, you’re stuck
going.
Q There’s no road —
A No.
Q — through the farm fields, is there?
A No.
Q And so I take it from what you’re saying it
was virtually impossible to contain Mr. Guliker on Bustin Road?
A Given an individual s free will, —
Q Yeah.
A — it would be very difficult.
Q Yeah. So if he would have wanted to go off
road ploughing through the fields, you obviously wouldn’t have been able to
contain him?
A It would have been very difficult.
Q The most obvious route to Ferry Road was to
use Bustin Road, correct?
A Yes.
Q And that, given one wouldn’t have to go off
road, would be the most reasonable way in which to reach Ferry Road, correct?
A That would be the most reasonable.
Q People generally drive on roadways?
A Generally speaking that would be a rational
thing to do.
(XFD of Cst. Brand by Mr. Quinlan,
March 28, 2013, Q.135-161)
[88]
In my view these assertions exaggerate the difficulty the RCMP would
have had containing Mr. Guliker.
[89]
Although the fields flanking Bustin Road are flat, Ms. Struys testified
that they are really wet. Ms. Struys also testified that anyone driving
through these fields wouldnt have gotten anywhere because all the potential
points of exit are fenced off.
[90]
I accept Ms. Struys evidence that the fields were soft and did not
offer a viable escape route to Mr. Guliker.
[91]
The RCMP video re-enactment, which was made four days after the
Collision, shows that the field to the east of Bustin Road is fenced along its
entirety.
[92]
While the field to the west of Bustin Road is not fenced, it does appear
to have a ditch of some description along most of its length. Certainly, it
does not appear sufficiently level with the road in most locations such that it
would be a simple matter to go from the road to the field, or vice versa, in
the type of vehicle that Mr. Guliker was driving.
[93]
I find that little or no investigation was required to know that the
obvious and most likely escape routes available to Mr. Guliker were the roadways.
The fact that these were the areas to which the RCMP officers who met at the
Chilliwack Motor Inn were initially deployed shows that the RCMP recognised
this to be the case.
(b) The Cause of the Collision
[94]
I have set out the basic facts of the Collision in the introduction to
these reasons.
[95]
The speed limit on Ferry Island Road was the default speed limit of 50
kph. The speedometer in the Bergen vehicle after the Collision showed 40 kph.
[96]
The plaintiffs tendered a collision reconstruction report prepared by
Sgt. Aaron Sproule for the Chilliwack RCMP Detachment. Neither Sgt.
Sproules qualifications nor the admissibility of the report were challenged. In
his report Sgt. Sproule opined that Mr. Guliker was driving at 136 kph
when he approached a right hand curve with a critical speed of between 92 and
117 kph. Sgt. Sproule concluded that as a consequence of exceeding the curves
critical speed, Mr. Gulikers vehicle moved into the westbound lane and
collided head on with Mr. Bergens vehicle.
[97]
Sgt. Sproule was required to attend trial for cross-examination by the
defendants. It was put to Sgt. Sproule that he could have used a higher
coefficient of friction or a different curve radius which would result in the
actual critical curve speed being higher than that cited in Sgt. Sproules
report. Essentially, the defendants assert that Sgt. Sproule used conservative
assumptions because the usual purpose of a report like this is for criminal
investigation, which must necessarily be cautious in nature.
[98]
The defendants say that given Sgt. Sproules use of conservative
assumptions, it is not entirely certain whether Mr. Guliker lost control of his
vehicle or deliberately drove into the Bergen vehicle. It was not put to Sgt.
Sproule, however, whether changing these assumptions as suggested would have
impacted his conclusion that Mr. Gulikers vehicle moved into the oncoming lane
of traffic as a result of exceeding the critical curve speed.
[99]
Given all the evidence in this case, I find it more probable than not
that Mr. Gulikers vehicle moved into the oncoming lane of traffic and collided
with the Bergen vehicle because it exceeded the critical curve speed. The
Collision occurred when Mr. Guliker was fleeing the RCMP vehicles which were chasing
him, as I have already found.
(c) RCMP knowledge prior to chase
(i) Information available
to the RCMP as a whole
[100] In this
section I describe the information about Mr. Guliker that was conveyed to the
RCMP, as a whole, on August 10, 2008. In the following section, I more closely
examine the actual knowledge of Constables Huff and Brand up to the point at
which they decided to approach Mr. Guliker in their vehicles.
[101] 11:28 a.m.
– Marilyn Struys (Mr. Gulikers sister) calls 911 to report that Mr. Guliker
breached his restraining order against his ex-wife, Wendy Guliker. Ms. Struys
tells 911 that she is concerned about Wendy Gulikers safety and that Mr. Guliker
has made indirect threats to Wendy Guliker about committing suicide. Ms. Struys
also indicates that she is on her way to Wendy Gulikers residence.
[102] 11:51 a.m.
– Constable Huff receives a dispatch in relation to the 911 call by Ms. Struys,
which contains the information that (a) Mr. Guliker has made threats to Wendy
Guliker and (b) Mr. Guliker has talked about suicide. Constable Huff contacts
Ms. Struys by cell phone shortly after this dispatch.
[103] 12:15 p.m.
– Constables Huff and Brand attend Wendy Gulikers residence and interview both
Wendy Guliker and Ms. Struys. Constable Huff requested that Constable Brand attend
with him as Constable Brand had accompanied Mr. Guliker to the family residence
a few days earlier to retrieve some belongings.
[104]
Wendy Guliker has no recollection of what was said in this interview. In
her testimony she simply described the conversation as relaxed and surreal. On
XFD, Constable Huff described the conversation as follows:
[Wendy Guliker] basically explained that she had had contact
with [Mr. Guliker], that she is now very fearful. He had made some threats
to the family. She knew he was not – she was not supposed to contact him, but
they did. She was supposed to meet him the previous evening, but did not. And
she also advised that he was on medication for epilepsy and depression, and
that he may be suicidal, that she heard from other people.
(XFD of Cst. Huff by Mr. McCormick, October 15, 2013, Q. 285)
[105] After this
interview, Constable Huff returns to the Chilliwack RCMP detachment to start a
warrant request.
[106] 1:03 p.m.
– Tony Neels (an employer of Mr. Guliker) calls 911to report that hes spoken
to Mr. Guliker by phone. In this 911 call, Mr. Neels conveys the following information
regarding Mr. Guliker: (a) he thinks the police are looking for him, (b) he
says hes going to commit suicide, (c) he wants to meet with Wendy Guliker,
(d) he fears going back to pre-trial detention and says the police wont get
him alive, (e) hes threatened suicide many times in the past but that hes
really hit the end of the rope today.
[107] 1:05 p.m.
– Dispatch radios Constable Huff and requests to speak with him via landline.
Rather than call, Constable Huff walks upstairs to speak with dispatch. Constable
Huff does not recall the content of this conversation but remembers that while
he was there dispatch received another call in relation to Mr. Guliker.
[108] 1:12 p.m.
– Anton Guliker (Mr. Gulikers cousin) calls 911. The transcript of this call
is not in evidence.
[109]
Dispatch records this call as follows:
[Mr. Gulikers] cousin called to
report that since the police are looking for [Mr. Guliker] he wants to
commit suicide [Mr. Guliker] stated he was going to drive to Hope and kill
himself
[110]
1:13 p.m. – Dispatch adds the following note to the file:
[Mr. Guliker] did not state a
method.
[111] Constable
Huff says he believed the call to be from Mr. Guliker himself, not Mr. Gulikers
cousin. Constable Huff also says the information gleaned from the call
included: (1) Mr. Guliker was saying that he was going to go kill himself and
(2) Mr. Guliker was going to jump in front of traffic.
[112]
1:16 p.m. – Dispatch adds the following note to the file regarding the
earlier call received from Mr. Neels:
[Mr. Neels] states [Mr. Guliker]
is suicidal [and] made several comments about not going back to pretrial alive.
[113]
1:17 p.m. – Dispatch adds the following note to the file:
Cst. Griffiths of Hope advised
and setting up at Exit 170
[114] In her
Occurrence Report, Constable Griffiths states that she was advised about Mr.
Guliker around 1:30 p.m. at which point she set up at exit 170 on Highway 1
to look for Mr. Gulikers vehicle. Shortly afterwards Anton Guliker stopped at this
location in his vehicle to speak to her.
[115] Constable
Griffiths handwritten notes from that day indicate that Anton Guliker
conveyed to her that Mr. Guliker had mentioned driving car into traffic or
jumping out into traffic. In her Occurrence Report, Constable Griffiths
indicates that she immediately updated [dispatch] over the radio about [Mr.
Gulikers] intention to drive into oncoming traffic.
[116]
Constable Griffiths Occurrence Report also states:
Anton stated that [Mr. Guliker]
had been suicidal in the past but that he was different this time. [Mr.
Guliker] had given Anton everything in [Mr. Gulikers] van, including his
thermos and bible. [Mr. Guliker] had given Anton his watch and wallet, which
had not occurred before. Anton was very concerned and felt that [Mr. Guliker]
was very serious this time and would try to take his own life. [Mr. Guliker]
had stated that he would either jump in front of a moving vehicle or drive his
van into oncoming traffic in order to kill himself.
Her Occurrence Report indicates that Cst. Griffiths sent
this information to dispatch by internal message from her car.
[117]
1:21 p.m. – Dispatch sends a BOLF (Be On the Lookout For) to the
mobile data terminals of all Chilliwack RCMP members. The BOLF was reviewed and
approved by Constable Huff. The BOLF states:
Please BOLF suicidal male, BCL
FFL710 Whi 04 Pontiac Montana. RO Gerald Guliker who is arrestable for breach.
States he is going to jump into traffic to avoid being arrested. Last known HWY
1 EB Annis.
[118] 1:35 p.m.
– Anton Guliker calls 911 a second time to relay the fact that Mr. Guliker
had told him that he was going to Mr. Neels farm on Bustin Road. Constable
Huff was still with dispatch at this time.
[119] Between
1:37 and 1:43 p.m. – Constables Huff, Brand, Kardos, Wilson, and Ojeda meet at
the Chilliwack Motor Inn to discuss the situation regarding Mr. Guliker and
develop a plan of action. I discuss this plan and its subsequent evolution in
more detail later.
[120] 1:41 p.m.
– Dispatch notes that Mr. Neels calls 911 a second time to relay the fact that
both Mr. Guliker and Wendy Guliker are heading to his farm on Bustin Road.
[121] 1:43 p.m.
– Ms. Struys calls 911 a second time. The RCMP informs Ms. Struys and,
indirectly, Wendy Guliker not to proceed to Mr. Neels farm on Bustin Road as that
is where the RCMP are going to go pick him up. Ms. Struys warns the RCMP
thing is if [Mr. Guliker] sees the cops
he will take off, right. The RCMP
responds that it will be too late. We are going to surround the place first.
[122] 1:49 p.m.
– Ms. Struys calls 911 a third time. She is with Wendy Guliker at the time. Constable
Huff and Constable Brand arrive at 1:51 p.m. while this call is ongoing. Ms.
Struys states to dispatch that Wendy Guliker is talking to the RCMP. Ms. Struys
says that Wendy Gulker is telling the RCMP where Mr. Guliker is parked on
Bustin Road such that hes got a birds eye view of the farm
so that if the
police come he could take off.
[123] At 1:52
p.m. Constable Huff receives a message from dispatch that says oh great. Gong
Show. Constable Huff replies we have every family member here at Bustin and
Old Yale Road. Just FYI.
[124] I have
previously described the evidence of Wendy Guliker, Amanda Redekop, and Constable
Brand regarding the circumstances and content of the conversation between
Constable Brand and Wendy Guliker that occurred at this time. I will not repeat
myself here.
(ii) Actual knowledge of Constables Huff and
Brand
A. Constable
Huff
[125] Constable
Huff was the lead investigator for the situation with Mr. Guliker. His actual
knowledge is thus of critical importance to understanding the reasons behind
the actions of the RCMP on August 10, 2008.
[126] Constable
Huffs personal knowledge about Mr. Guliker begins at 11:51 a.m. when he
receives a dispatch following Ms. Struys initial 911 call. As mentioned
earlier, this dispatch contains the information that (a) Mr. Guliker has made
threats to Wendy Guliker and (b) Mr. Guliker has talked about suicide. Constable
Huff recognised that this information was attached to the dispatch, but denied
that he acknowledged it at that time.
[127] Constable
Huff testified to speaking with Ms. Struys by cell phone shortly after
receiving the dispatch, at which point he said he learned that Ms. Struys was
heading to Wendy Gulikers residence. This information was also attached to the
initial dispatch that Constable Huff received.
[128] At 12:15
p.m. Constable Huff attended Wendy Gulikers residence with Constable Brand and
interviewed both Wendy Guliker and Ms. Struys. I have already described the
evidence in relation to this conversation. Most pertinently, Constable Huff
states that Wendy Guliker conveyed the information that Mr. Guliker had made
some threats to the family and may be suicidal. Thus, at this time it is
clear that Constable Huff knew that Mr. Guliker might be suicidal.
[129] After
returning to the detachment, dispatch requests to speak with Constable Huff
over the phone. Dispatch had just received Mr. Neels initial 911 call. Constable
Huff walks upstairs to speak to dispatch in person.
[130] At this
point, Constable Huff has a conversation with dispatch. Regarding the content
of that conversation, Constable Huff stated on XFD that I dont remember
specifics. He also stated that at that point all the information I had, I
felt I got from Wendy [Guliker] and [Ms. Struys]. In other words, I understand
Constable Huffs testimony to be that he did not glean any further useful
information from dispatch as a result of Mr. Neels initial 911 call.
[131] Constable Huff
is then present at dispatch during Anton Gulikers initial 911 call. However, Constable
Huff testified that he incorrectly believed the call to be from Mr. Guliker and
that he had relayed the information that he was going to kill himself and
that he was going to jump into traffic. Thus, at this time it is clear that Constable
Huff understood that Mr. Guliker might attempt to jump into traffic.
[132] Constable
Huff then reviewed and approved the BOLF that was sent to all the Chilliwack
RCMP members on duty. In addition to the information that Mr. Guliker was
suicidal and might jump into traffic, the BOLF also stated that Mr. Guliker
would do so to avoid being arrested. Thus, at the time the BOLF was sent it
is clear that Constable Huff was aware that Mr. Guliker was a flight risk. This
is particularly important in light of Constable Brands testimony that he was
not aware of this fact at the time that he and Constable Huff approached Mr.
Guliker in their vehicles along Bustin Road.
[133] Constable
Huff was still present at dispatch when Anton Guliker called 911 for a second
time at 1:35 p.m. to relay the fact that Mr. Guliker was on his way to
Mr. Neels farm on Bustin Road. This time, Constable Huff correctly
understood the call to be from Anton Guliker. On XFD, Constable Huff stated
that from this call he learned that Mr. Guliker had given away his worldly
possessions and he was going to go to an address on Bustin Road and kill
himself.
[134] Constable
Huff then arranged to meet Constables Brand, Kardos, Ojeda, and Wilson at the
Chilliwack Motor Inn. When asked on XFD why he requested the assistance of
other RCMP members, Constable Huff stated:
it was quite obvious that he was
distraught and this was a much more — we need to find him to try and help
him.
[135] Based on
my understanding of the evidence so far, Constable Huff went to this meeting
armed with the knowledge that Mr. Guliker was suicidal, might jump into
traffic, would likely flee to avoid arrest, and was heading to an address on
Bustin Road. The evidence is uncertain as to whether Constable Huff
specifically knew that Mr. Guliker had stated an intention to drive into
oncoming traffic, information which was relayed to dispatch by Constable
Griffiths after speaking in person to Anton Guliker.
[136]
Constable Huffs testimony on XFD regarding the reason for the meeting
with the other RCMP officers provides further insight into his knowledge at
that time. In particular, it is clear that the primary concern was the threat
that Mr. Guliker posed to both himself and other motorists. The relevant XFD
proceeded as follows:
Counsel: So
is it fair to say your primary concern was for Mr. Guliker as a danger to
himself?
Cst. Huff: Correct. Or others.
Counsel: Did you have any information that he was an
imminent threat?
Cst. Huff: Yes.
Counsel: What was that information?
Cst. Huff: Just
the information that he had stated, that he might jump into traffic. So he was
an imminent threat to himself and/or other motorists.
(XFD of Cst. Huff by Mr.
McCormick, October 15, 2013, Q. 385, 389-390)
[137]
When the RCMP formed the initial plan for dealing with Mr. Guliker, it
is clear that Constable Huff, the lead investigator, was particularly concerned
about not spooking Mr. Guliker into fleeing in his motor vehicle:
Counsel: And
it also gets back to the point that really the last thing you wanted to have
happen was to spook [Mr. Guliker] into fleeing in his motor vehicle?
Cst. Huff: Correct.
Counsel: Because
a person in [Mr. Gulikers mental state, fleeing in a motor vehicle, could
pose a significant risk to members of the public, himself, and even police
officers?
Cst. Huff: Thats correct.
Counsel: So that was the last thing you wanted to
have happen?
Cst. Huff: Correct.
(XFD of Cst. Huff by Mr.
Quinlan, October 15, 2013, Q. 674-676)
[138] This plan
was somewhat modified at 1:47 p.m. when Constable Huff told Constable Wilson
to hang back. Other than a radio conversation with Constable Brand, Constable
Huff had not received any further information regarding Mr. Gulikers situation
at this time.
[139] At 1:51
p.m. Constable Huff arrived with Constable Brand, who was in a separate
vehicle, at the intersection of Old Yale Road and Bustin Road. Waiting there
were Wendy Guliker and Amanda Redekop in one vehicle and Mr. and Mrs. Struys
in another.
[140] At this
point, Constable Huff has a conversation with Mr. Struys about which he stated
in XFD that I dont remember the specifics, but I know I learned that
[Mr. Guliker] was up on a property at Bustin Road. From this, it seems
the only information Constable Huff deemed pertinent was Mr. Gulikers specific
location.
[141] There is
no evidence that Constable Huff received any other information or spoke further
with Constable Brand before the two RCMP officers started to drive north on
Bustin Road with Constable Brand as the lead vehicle.
B. Constable
Brand
[142] Constable
Brand was already somewhat familiar with Mr. Guliker from a few days before
August 10, 2008, when he had accompanied Mr. Guliker to collect some belongings
from the family residence. Mr. Guliker was co-operative at that earlier time.
[143] There is
no evidence that Constable Brand had any further information regarding Mr.
Guliker before he attended Wendy Gulikers residence with Constable Huff
at 12:15 p.m. on August 10, 2008. It seems reasonable to impute that Constable
Brand gleaned similar information from these interviews as Constable Huff
did.
[144] The next
information that Constable Brand appears to have received regarding Mr. Guliker
is the BOLF that was sent by Constable Huff at 1.21 p.m. I have already
discussed Constable Brands evidence regarding his receipt of the BOLF, so will
not do so again.
[145] The next
evidence regarding Constable Brands involvement in matters is his attendance
at the Chilliwack Motor Inn meeting. Constable Brand was thus present when the
initial plan for dealing with Mr. Guliker was developed. There is no clear evidence
regarding the information that was conveyed by Constable Huff to Constable
Brand and the other RCMP officers at this time.
[146] Constable
Huff and Constable Brand then have a further conversation by radio as they are
driving toward the south end of Bustin Road, following which Constable Huff
modifies the initial plan by telling Constable Wilson to hang back.
[147] At the
intersection of Old Yale Road and Bustin Road, Constable Brand has a
conversation with Wendy Guliker. I have also already discussed Constable
Brands evidence regarding this conversation and its contradictions with the
evidence of Amanda Redekop and Wendy Guliker. I will not do so again.
[148] I do note,
however, that the evidence is consistent that Wendy Guliker conveyed the
following information to Constable Brand: (1) the exact location where Mr.
Guliker was parked, (2) that Mr. Guliker could see the roadway from all angles,
and (3) that she thought the RCMP officers should separate and approach
Mr. Guliker from different directions.
[149] There is
no evidence that Constable Brand relayed any of this information to Constable
Huff, the lead investigator, before the two RCMP officers started to drive
north on Bustin Road with Constable Brand as the lead vehicle.
C. Shared knowledge
[150] Despite
the differences in their sources of information regarding Mr. Guliker, I find
based on all the evidence outlined above that Constables Huff and Brand both
understood the following things regarding Mr. Guliker at the point they decided
to approach him along Bustin Road in their vehicles:
(i) Mr.
Guliker was parked at the chicken farm on Bustin Road;
(ii) Mr. Guliker was suicidal;
(iii) Mr. Guliker had stated an intention
to jump into traffic;
(iii) Mr. Guliker was likely to flee from
the police.
[151] I am not
certain the evidence establishes that Constables Huff and Brand knew that Mr.
Guliker had stated a specific intention to drive into oncoming traffic, a fact
which Constable Griffiths was aware of and relayed to dispatch.
[152] However, I
do not find this to be necessary for my finding regarding liability.
(d) The RCMP plan for dealing with Mr. Guliker
(i) The initial plan
[153] In the
last section I discussed the information or knowledge that the RCMP, and
particularly Constables Huff and Brand, had regarding Mr. Guliker. In this
section, I consider the evidence regarding the plan that the RCMP developed for
dealing with Mr. Guliker.
[154] I consider
the RCMP plan for dealing with Mr. Guliker to have begun to crystallise when
Constables Huff, Brand, and three other officers met at the Chilliwack Motor
Inn between 1:37 and 1:43 p.m.
[155] Just
before this meeting the RCMP learned that Mr. Guliker was heading to Mr. Neels
farm on Bustin Road. Prior to gaining that important piece of information, the
RCMP did not know Mr. Gulikers location and the plan for dealing with him
appears to have consisted of issuing the BOLF and stationing Constable
Griffiths along the highway to look out for his vehicle.
[156] Constable
Huff arranged the meeting at the Chilliwack Motor Inn. He was the lead
investigator and, as he acknowledged, in charge of the situation regarding
Mr. Guliker. At that point, Constable Huff also had the most information
regarding Mr. Guliker and shortly beforehand he had reviewed and approved the
BOLF that was sent to all the Chilliwack RCMP officers on duty.
[157] I have
already discussed in detail the information that the BOLF contained, so will
not canvas this evidence again.
[158] The
defendants submit that because five RCMP officers, more than half the officers
on duty that day, were enlisted to assist with apprehending Mr. Guliker, it
demonstrates how seriously the RCMP considered the suicide threat.
[159] Beyond the
number of RCMP officers who attended the meeting at the Chilliwack Motor Inn,
there is little evidence of what was discussed.
[160] The
evidence establishes that the meeting could not have lasted much more than five
minutes.
[161]
As I discussed earlier, Constable Huff (a) regarded Mr. Guliker as a
threat to both himself and other motorists and (b) wished to avoid Mr. Guliker
fleeing in a vehicle if possible. It seems a reasonable inference that
Constable Huff conveyed some, if not all, of his knowledge about Mr. Guliker to
the other RCMP officers at the meeting but I have no direct evidence of this.
[162]
At the least, we know that the other officers received the BOLF to the
mobile data terminals in their vehicles and, in particular, I have already
found that Constable Brand was aware of the information contained in it,
including that Mr. Guliker was suicidal and a flight risk.
[163]
What I can say with certainty is that the outcome of this meeting was a
plan for dealing with Mr. Guliker, which Constable Huff described on XFD as
follows:
Counsel: Tell me about that meeting?
Cst. Huff: I
dont remember specifically what was said. I know we devised a plan, that
basically myself and Constable Brand would go down to Bustin Road and Old Yale
Road. Constable Keith Wilson and Kardos would go down Hope River Road, and
Constable Ojeda would cut through the Reserve.
(XFD of Cst. Huff by Mr.
McCormick, October 15, 2013, Q. 355)
[164] As I
understand the geography of the area around Mr. Neels farm on Bustin Road,
this means that two officers were approaching Mr. Gulikers known location from
the south (Constables Huff and Brand), two officers were approaching from the
north (Constables Wilson and Kardos), and one officer was approaching from the
east (Constable Ojeda).
[165]
On XFD Constable Huff described the objective of this plan as follows:
Counsel: Well,
what was the objective in having the various officer approach from different
directions?
Cst. Huff: To
flood the area if he did leave, in a sense, because theres no point in having
the five vehicles going the same direction on the same road. That doesnt
really help. More eyes on the road, just more observations.
Counsel: And
once again, if at all possible, you wanted to minimise any driving on the roads
that he might decide to do?
Cst. Huff: Thats correct.
Counsel: So
if you covered off the various avenues of escape, that would achieve that
objective?
Cst. Huff: Yes.
Counsel: Certainly,
it goes without saying that if Mr. Guliker was on Bustin Road and he was to flee,
that the first avenue of flight would likely be on Bustin Road which is a
roadway?
Cst. Huff: Most likely.
Counsel: As opposed to driving through farm
fields?
Cst. Huff: Thats correct, but given his mental
instability, you never know.
Counsel: Right.
And that goes back to the uncertainty that you were dealing with?
Cst. Huff: Correct.
Counsel: And
it also gets back to the point that really the last thing you wanted to have
happen was to spook him into fleeing in his motor vehicle?
Cst. Huff: Correct.
(XFD of Cst. Huff by Mr.
Quinlan, October 15, 2013, Q. 650-652, 671-674)
[166] Evidence
of this plan is also found in the phone call between Ms. Struys and RCMP
dispatch at 1:43 p.m. To recap, in that call Ms. Struys warns the RCMP that if
Mr. Guliker sees them he will flee and dispatch responds that it will be too
late. We are going to surround the place first.
[167] Though she
was not explicitly part of this initial plan, there is evidence that a sixth
RCMP officer, Constable Labbee, was about 20 minutes away in Agassiz and
available to provide assistance if needed.
[168] I find,
based on all the evidence, that at this point the RCMP plan for dealing with
Mr. Guliker was to restrict the three avenues of escape by roadway that were
available to him from his location on Bustin Road. The RCMP objective was to
minimise the likelihood that Mr. Guliker would flee in his vehicle. I cannot
see a better word to describe this plan than containment.
(ii) The modified plan
[169] At 1:47
p.m. Constable Huff told Constable Wilson, who was approaching Mr. Gulikers
location with Constable Kardos from the north, to hang back. At his XFD,
Constable Huff testified that this meant he wanted Constables Wilson and Kardos
to remain in the area but to hold back from approaching the intersection of
Bustin Road and Ferry Road.
[170] Constables
Huff and Brand testified that this modification to the plan occurred following
a short radio exchange between them, a result of which Constable Huff deferred
to Constable Brands opinion that five RCMP vehicles might be too many given
that Gerald Guliker had been cooperative when Constable Brand had previously
dealt with him.
[171] I note
here that when Constable Brand previously dealt with Mr. Guliker he did not
have any knowledge that Mr. Guliker was suicidal, had stated an intention to
jump into traffic, and was a flight risk.
[172] The
defendants submit that this modification to the plan was a conscious strategy
intended as an attempt to de-escalate the situation. They also assert that
this decision was, in retrospect, a good one.
[173] The
defendants also point out that Constables Wilson and Kardos remained in the
immediate vicinity as they were able to assist very quickly after the
Collision.
[174]
While the other RCMP officers were in the vicinity, Constable Huff was
not actually aware of exactly where they were in relation to Mr. Gulikers
location on Bustin Road. Constable Huff admitted at his XFD that this was an
error on his part:
Counsel: And
at that point, Constables Kardos and Wilson were approaching the northern point
of access at Ferry Road?
Cst. Huff: Im not exactly sure where they were, to
be honest with you.
Counsel: How come?
Cst. Huff: Id never asked them.
Counsel: Did you have any sense of how close they
were?
Cst. Huff: No
Counsel: Because
we had talked about communication being extremely important –
Cst. Huff: Yes.
Counsel: –
amongst officers? In that case, you didnt see it important to learn the
whereabouts of Constables Kardos and Wilson?
Cst. Huff: It was an error of mine.
Counsel: What about Constable Ojeda?
Cst. Huff: Im not sure where he was either.
Counsel: And
that is similarly an error of yours in not determining his location?
Cst. Huff: Yes.
(XFD of Cst. Huff by Mr. McCormick,
October 15, 2013, Q. 438-444)
[175] Following
this modification of the initial plan, Constables Huff and Brand arrive at the
intersection of Bustin Road and Old Yale Road where Wendy Guliker, Amanda
Redekop, Ms. Struys, and Mr. Struys are waiting in their vehicles.
[176] I have
already discussed the evidence regarding the conversations that occurred
between Wendy Guliker and Constable Brand and between Mr. Struys and Constable
Huff.
[177] Following
the instruction to Constable Wilson to hang back, there is no evidence of any
further conversation between Constables Huff and Brand or any further
modification to the plan for dealing with Mr. Guliker.
[178] Constables
Brand and Huff then approach Mr. Gulikers known location from the south along
Bustin Road with Constable Brands vehicle in the lead. I have already detailed
the events that transpired from this point onwards.
[179] I note
again, however, that I have accepted Wendy Guliker and Amanda Redekops
evidence that Constable Brand said something to the effect that if Mr. Guliker
runs, they will chase him. That is what they did.
[180] Other than
conducting the vehicle chase of Mr. Guliker, the only evidence of an
alternative plan by the RCMP is Constable Huffs radio transmission during the
chase stating Labbee, if you can get down to Ferry and set up a spike.
V. Were the RCMP Negligent?
(a) The test for negligence
[181] To
establish liability in negligence, a plaintiff must prove: (a) that the
defendant owed the plaintiff a duty of care, (b) that the defendants actions
or inaction breached the standard of care applicable to that duty, (c) that the
plaintiff suffered compensable damage, and (d) that the defendants breach of
the standard of care caused the plaintiffs damage: Ediger v. Johnston,
2013 SCC 18 at para. 24; Hill v. Hamilton-Wentworth Regional Police Services
Board, 2007 SCC 41 at para. 96.
[182] In this
case, the defendants dispute (i) that the RCMP owe the plaintiff a duty of
care, (ii) if a duty of care exists, that the RCMP breached the requisite
standard of care, and (iii) that the actions of the RCMP caused the Collision.
[183] I address
each of these issues in turn.
(b) Duty of care
Relevant statutes & policies
[184] To
establish liability in negligence, the RCMP must be found to owe a private law
duty of care to the plaintiff.
[185] The duties
and responsibilities of the RCMP conferred by statute and RCMP policy are,
however, relevant to determining whether a private law duty of care exists.
They are also relevant to determining the applicable standard of care if a duty
is found to exist. For this reason, I set out here the statutory and policy
provisions relevant to this case.
[186]
RCMP officers owe a statutory duty to the public
under s. 18 of the RCMP Act:
18. It is the
duty of members who are peace officers, subject to the orders of the
Commissioner,
(a) to perform
all duties that are assigned to peace officers in relation to the preservation
of the peace, the prevention of crime and of offences against the laws of
Canada and the laws in force in any province in which they may be employed, and
the apprehension of criminals and offenders and others who may be lawfully
taken into custody;
[187]
Similarly, provincial constables owe a statutory
duty to the public under s. 7(2) of the Police Act:
7(2) The provincial police force, under the commissioner’s
direction, must perform the duties and functions respecting the preservation of
peace, the prevention of crime and offences against the law and the
administration of justice assigned to it or generally to peace officers by the
commissioner, under the director’s standards or under this Act or any other
enactment.
As stated earlier in these reasons, the
RCMP in this case were acting in their capacity as provincial constables
pursuant to an agreement between British Columbia and Canada.
[188] The specific duties and responsibilities of police officers
operating emergency vehicles in pursuits and/or at high speed are set out in
the Motor Vehicle Act, R.S.B.C. 1996, c. 318, the Emergency Vehicle
Driving Regulation, B.C. Reg. 133/98, and the RCMPs Operational Manual
and E Division Operational Manual.
[189]
Section 122 of the Motor Vehicle Act exempts
police from some rules regarding the operation of motor vehicles in certain
situations, which are specified in the Emergency Vehicle Driving Regulation.
Section 122 reads as follows:
122 (1)
Despite anything in this Part, but subject to subsections (2) and (4), a driver
of an emergency vehicle may do the following:
(a) exceed the
speed limit;
(b) proceed past a
red traffic control signal or stop sign without stopping;
(c) disregard
rules and traffic control devices governing direction of movement or turning in
specified directions;
(d) stop or stand.
(2) The driver of an emergency vehicle must
not exercise the privileges granted by subsection (1) except in accordance with
the regulations.
(3) [Repealed 1997-30-2.]
(4) The driver of an emergency vehicle
exercising a privilege granted by subsection (1) must drive with due regard for
safety, having regard to all the circumstances of the case, including the
following:
(a) the nature,
condition and use of the highway;
(b) the amount of
traffic that is on, or might reasonably be expected to be on, the highway;
(c) the nature of the use being made of the
emergency vehicle at the time.
[190]
The Emergency Vehicle Driving Regulation determines
the circumstances and conditions that apply to the police in exercising the
privileges granted by s. 122 of the Motor Vehicle Act.
[191] Section 1 of the Emergency Vehicle Driving Regulation defines
pursuit and attempting to close the distance as follows:
1 In this regulation:
"attempting to close the distance" means
attempting to close the distance between a peace officer’s vehicle and another
vehicle but does not include a pursuit;
"pursuit" means
the driving of an emergency vehicle by a peace officer while exercising the
privileges granted by section 122 (1) of the Motor Vehicle Act for the
purpose of apprehending another person who refuses to stop as directed by a
peace officer and attempts to evade apprehension.
[192]
Sections 3 and 4, which cover both pursuit and
non-pursuit situations like attempting to close the distance, state:
3 (1) To
engage in or continue a pursuit, a peace officer must
(a) have an
emergency light and siren activated, and
(b) have
reasonable grounds to believe that
(i) the driver or a passenger in the
vehicle being or to be pursued has committed, is committing or is about to
commit an offence, and
(ii) the seriousness of the offence and
the need for immediate apprehension outweigh the risk to the safety of members
of the public that may be created by the pursuit.
(2)
In considering whether there are reasonable grounds under subsection (1) (b),
the driver of the emergency vehicle must consider any pertinent factors,
including the following, if relevant:
(a) the nature and
circumstances of the suspected offence or incident;
(b) the risk of
harm posed by the manner in which the emergency vehicle is being or is likely
to be operated;
(c) the risk of
harm posed by the distance, speed or length of time required or likely to be
required to exercise the privileges;
(d) the nature,
condition and use of the highway;
(e) the volume and
nature of pedestrian or vehicular traffic that is, or might reasonably be
expected to be, in the area.
(3) For the purposes of subsection (1) (b),
(a) the need for
immediate apprehension will be low if
(i) the driver or a passenger in the
vehicle pursued has not committed an indictable offence, or
(ii) identification or apprehension of the
suspected offender may be achieved by other means at that or a later time,
(b) the greater
the distance, speed or length of time required or likely to be required for the
pursuit, the greater the risk to the safety of members of the public, and
(c) an attempt to evade apprehension is not
a factor to be considered in determining the seriousness of the offence or the
need for immediate apprehension.
4 (1) A peace
officer operating an emergency vehicle for purposes other than pursuit may
exercise the privileges granted by section 122 (1) of the Motor Vehicle Act
if
(a) the peace
officer has reasonable grounds to believe that the risk of harm to members of
the public from the exercise of those privileges is less than the risk of harm
to members of the public should those privileges not be exercised,
and
(b) the peace
officer operates the following emergency equipment, as applicable:
(i) in the exercise of privileges described
in section 122 (1) (a) to (c) of the Motor Vehicle Act, an emergency light and
siren;
(ii) in the exercise of privileges
described in section 122 (1) (d) of the Motor Vehicle Act, an emergency light
or an emergency light and siren.
(2) Having determined that there are reasonable grounds
referred to in subsection (1) (a), the peace officer referred to in subsection
(1) may, in the following circumstances, exercise any of the privileges granted
by section 122 (1) of the Motor Vehicle Act without operating an
emergency light and siren or by operating an emergency light alone:
(a) the peace officer is responding
to an incident and has reasonable grounds to believe that an offence has been,
is being or is about to be committed and that the risk of harm to members of
the public entailed in operating an emergency siren or an emergency light and
siren, as the case may be, outweighs the risk of harm to members of the public
entailed in not operating them;
(b) the peace officer is engaged in the lawful execution of
his or her duty other than as described in paragraph (a) or section 3 and has
reasonable grounds to believe that it is safe to operate the emergency vehicle
without operating an emergency siren or an emergency light and siren, as the
case may be.
(3) In considering whether there are reasonable grounds under
subsection (1), (2) or (5) a peace officer must
(a) consider the factors described
in section 3 (2), and
(b) weigh the degree of risk of harm to members of the
public against the seriousness of the nature and circumstances of the suspected
offence or incident.
(4) Subsection (2) does not apply if the peace officer must
disregard a stop sign or approach or pass signs described in section 147 of the
Motor Vehicle Act relating to schools and playgrounds.
(5) A peace officer operating an emergency vehicle in the
circumstances set out in subsection (2) must stop at a red light and may then
disregard the red light and proceed through the intersection if the peace
officer has reasonable grounds to believe it is safe to do so without operating
relevant emergency equipment.
(6) Factors which will increase the risk of harm to members
of the public for purposes of subsections (1), (2) and (5) include
(a) attempting to close the
distance between a peace officer’s vehicle and another vehicle,
(b) if there is poor visibility,
(c) if there is pedestrian or other
vehicular traffic on the highway, and
(d) if the peace officer must disregard a yield sign or pass
through a crosswalk or uncontrolled intersection.
(7) For the purposes of subsection (2), the greater the
distance, speed or length of time required or likely to be required in
exercising the privileges granted by section 122 (1) of the Motor Vehicle
Act, the greater the risk to the safety of members of the public.
(8) For the purposes of
subsection (2), the risk of harm to members of the public must be considered to
be substantially increased when a peace officer is attempting to close the
distance if the other vehicle is not in the sight of the peace officer.
[193]
The germane provisions of the RCMPs Operational
Manual and E Division Operational Manual state:
Operational Manual
5.4 Emergency Vehicle Operations (Pursuits)
1. General
1.1 Emergency vehicle operations include
pursuits, closing the distance and emergency vehicle response.
1.2 The Incident Management Intervention
Model (IMIM) must guide any decision to initiate, continue or terminate an
emergency vehicle operation. The following principles apply:
1.2.1. The primary objective of any
intervention is public safety.
1.2.2. Police officer safety is an essential
element of public safety.
1.2.3. The IMIM must always be applied in
the context of a careful risk assessment.
1.2.4. Risk assessment must take into
account the likelihood and extent of fatalities, injury and damage to property.
1.2.5. Risk assessment is a continuous
process and risk management must evolve as situations change.
1.2.6. The best strategy is to use the least
intervention to manage the risk.
1.2.7. Prudent
intervention causes the least amount of harm or damage.
2. Initiating a Pursuit
2.1. A pursuit may occur when a suspect
driver refuses to stop for a peace officer and attempts to evade apprehension.
2.2. A pursuit may only be initiated and
continued when other alternatives are not available and the seriousness of the
situation and the necessity of immediate apprehension is judged to outweigh the
level of danger created by the pursuit.
…
3. Termination of a Pursuit
3.1. A pursuit must be terminated when the
risk to life becomes too great, the pursuit become futile or other means of
apprehension are possible.
3.5 A pursuit is terminated when the
emergency equipment of the police vehicle has been turned off and the police
vehicle has slowed down to the speed limit.
"E" Division Operational
Manual
5.4 Emergency Vehicle Operations
(Pursuits)
1. General
1.1. Refer to HQ QM 5.4 EVO-Pursuits
1.2. Refer to the Emergency Vehicle Driving
Regulation (EVDR) by Order of Lieutenant Governor in Council No. 0522
1.3 "Attempting to close the
distance" means the act of "catching-up" to an offender,
but does not include a pursuit.
1.4 "Pursuit", means the driving
of an emergency vehicle by a peace officer while exercising the privileges
granted by Section 122(1) MVA for the purpose of apprehending another person
who:
1.4.1 refuses to stop as directed by a peace
officer; and
1.4.2 attempts to evade apprehension.
1.5 Deployment of a tire deflation device
must be authorized by the supervisor monitoring the pursuit. See E Div OM 5.3
Roadblocks
..
3. Factors to Consider
3.1. Per HQ QM 5.4.1.2 assessment is based
on whether there are reasonable grounds to engage in or continue a pursuit, or
an attempt to close the distance, balance against the risk of harm to the
public as outlined in the IMIM
3.2 Public safety is the paramount
consideration when a member is operating a police vehicle while exercising the
exemptions granted ender Sec. 122MVA
3.3 Threats to public safety can change
rapidly, and continual assessment is required throughout the pursuit or while a
member is attempting to close the distance.
3.4 When making an assessment as to the
reasonable grounds to engage in or continue a pursuit, a member must consider
the following factors:
3.4.1 nature and circumstances of the
suspected offence or incident;
3.4.2. the risk of harm posed by the manner
in which the police vehicle is being operated;
3.4. 3. the risk of harm posed by the
distance, speed or length of time required or likely to be required to exercise
the privileges under Sec. 122 MVA;
3.4.4. the nature, condition and use of the
highway;
3.4.5. the volume and nature of pedestrian
and/or vehicle traffic that is or might reasonably be expected to be in the
area;
3.5. The need for immediate apprehension
will be low if:
3.5.1 the driver or passenger in the vehicle
has not committed an indictable offence; or
3.5.2 identification or apprehension of the
suspect offender may be done by other means at that or a later time
3.6. The greater the distance, speed or time
required to apprehend an offender, the greater the risk to public safety.
3.7. A suspect’s attempt to evade
apprehension is not a factor in determining the seriousness of the offence, or
the need for immediate apprehension.
5.4 Immediately after termination of a
pursuit (HQ QM 5.4.3 and Section 6 below), when safe to do so, pull over to the
roadside and stop your vehicle. Notify OCC that your vehicle is stopped.
Police Duties at Common Law
(i) Principles
[194]
The Supreme Court of Canada discussed the duties
of the police in ORourke et al. v. Schacht, [1976] 1 S.C.R. 53. In that
case the police failed to replace a sign warning motorists of an obstruction in
the road after it had been knocked down. The plaintiff subsequently collided
with the obstruction and suffered damages as a result. The Court adopted the
following words of the Ontario Court of Appeal at 65-66:
Police forces
exist in municipal, provincial, and federal jurisdictions to exercise powers
designed to promote the order, safety, health, morals, and general welfare of
society. It is not only impossible but inadvisable to attempt to frame a
definition which will set definite limits to the powers and duties of police
officers appointed to carry out the powers of the state in relation to
individuals who come within its jurisdiction and protection. The duties imposed
on them by statute are by no means exhaustive. It is infinitely better that the
courts should decide as each case arises whether, having regard to the
necessities of the case and the safeguards required in the public interest, the
police are under a legal duty in the particular circumstances.
[195]
More recently, the Supreme Court of Canada
re-visited first principles in considering whether a duty of care existed
between the police and a suspect they are investigating: Hill v. Hamilton-Wentworth
Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. Chief
Justice McLachlin says at para. 20:
[20] The test for determining whether a
person owes a duty of care involves two questions: (1) Does the relationship
between the plaintiff and the defendant disclose sufficient foreseeability and
proximity to establish a prima facie duty of care; and (2) If so, are
there any residual policy considerations which ought to negate or limit that
duty of care? (See Anns v. Merton London Borough Council, [1978] A.C.
728 (H.L.), as affirmed and explained by this Court in a number of cases (Cooper
v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79, at paras. 25 and 29-39; Edwards
v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80, at para.
9; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, at
paras. 47-50; Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18, at
para. 47).)
[196]
In determining whether the relationship between
a plaintiff and defendant gives rise to a prima facie duty of care, the
first element that must be established is foreseeability. In Hill,
McLachlin C.J. states at para 22:
[22] … In the foundational case of Donoghue
v. Stevenson, [1932] A.C. 562 (H.L.), Lord Atkin stated:
The rule that you are
to love your neighbour becomes in law, you must not injure your neighbour; and
the lawyers question, Who is my neighbour? receives a restricted reply. . . .
Who, then, in law is my neighbour? The answer seems to be persons who are
so closely and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to the acts
or omissions which are called in question. [Emphasis added; p. 580.]
Lord Atkin went on
to state that each person must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour (p.
580). Thus the first question in determining whether a duty in negligence is
owed is whether it was reasonably foreseeable that the actions of the alleged
wrongdoer would cause harm to the victim.
[197]
Foreseeability alone is insufficient to establish a
prima facie duty of care. There must also be a close and direct
relationship of proximity or neighbourhood between the plaintiff and defendant.
In Hill, McLachlin C.J. states at paras. 24-25:
[24] Generally speaking, the proximity analysis
involves examining the relationship at issue, considering factors such as
expectations, representations, reliance and property or other interests
involved: Cooper, at para. 34. Different relationships raise different
considerations. The factors which may satisfy the requirement of proximity are
diverse and depend on the circumstances of the case. One searches in vain for a
single unifying characteristic: Cooper, at para. 35. No single rule,
factor or definitive list of factors can be applied in every case. Proximity
may be usefully viewed, not so much as a test in itself, but as a broad concept
which is capable of subsuming different categories of cases involving different
factors(Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992]
1 S.C.R. 1021, at p. 1151, cited in Cooper, at para. 35).
[25] Proximity may
be seen as providing an umbrella covering types of relationships where a duty
of care has been found by the courts. The vast number of negligence cases
proceed on the basis of a type of relationship previously recognized as giving
rise to a duty of care. The duty of care of the motorist to other users of the
highway; the duty of care of the doctor to his patient; the duty of care of the
solicitor to her client these are but a few of the relationships where
sufficient proximity to give rise to a prima facie duty of care is
recognized, provided foreseeability is established. The categories of
relationships characterized by sufficient proximity to attract legal liability
are not closed, however. From time to time, claims are made that relationships
hitherto unconsidered by courts support a duty of care giving rise to legal
liability. When such cases arise, the courts must consider whether the claim
for sufficient proximity is established. If it is, and the prima facie
duty is not negated for policy reasons at the second stage of the Anns
test, the new category will thereafter be recognized as capable of giving rise
to a duty of care and legal liability. The result is a concept of liability for
negligence which provides a large measure of certainty, through settled
categories of liability attracting relationships, while permitting expansion
to meet new circumstances and evolving conceptions of justice.
[198]
The words close and direct are not confined to
describing physical proximity. Rather, they are concerned with whether the
defendants actions have a close or direct effect on the plaintiff, such that
the defendant should have the plaintiff in mind as being potentially harmed by those
actions. In Hill, McLachlin C.J. states at para. 29:
[29] The most basic factor upon which the proximity analysis
fixes is whether there is a relationship between the alleged wrongdoer and the
victim, usually described by the words "close and direct". This
factor is not concerned with how intimate the plaintiff and defendant were or
with their physical proximity, so much as with whether the actions of
the alleged wrongdoer have a close or direct effect on the victim, such that
the wrongdoer ought to have had the victim in mind as a person potentially
harmed. A sufficiently close and direct connection between the actions of the
wrongdoer and the victim may exist where there is a personal relationship
between alleged wrongdoer and victim. However, it may also exist where there is
no personal relationship between the victim and wrongdoer. In the words of Lord
Atkin in Donoghue:
[A] duty to take due care [arises]
when the person or property of one was in such proximity to the person or
property of another that, if due care was not taken, damage might be done by
the one to the other. I think that this sufficiently states the truth if
proximity be not confined to mere physical proximity, but be used, as I think
it was intended, to extend to such close and direct relations that the act
complained of directly affects a person whom the person alleged to be bound to
take care would know would be directly affected by his careless act.
[Emphasis in original]
[199] The final stage of the duty of care analysis engages residual policy
considerations. These are not concerned with the relationship between the
parties per se but with the effect of recognizing a duty of care on
other legal obligations, the legal system and society more generally. In Hill,
McLachlin C.J. heard and rejected the following as policy reasons for negating
a duty:
the quasi-judicial nature of police work; the
potential for conflict between a duty of care in negligence and other duties
owed by police; the need to recognize a significant amount of discretion
present in police work; the need to maintain the standard of reasonable and
probable grounds applicable to police conduct; the potential for a chilling
effect on the investigation of crime; and the possibility of a flood of
litigation against the police (para. 48).
[200]
Specifically with respect to the discretion
involved in police work, McLachlin C.J. says at paras. 51-54:
[51] The discretion inherent in police work
fails to provide a convincing reason to negate the proposed duty of care. It is
true that police investigation involves significant discretion and that police
officers are professionals trained to exercise this discretion and investigate
effectively. However, the discretion inherent in police work is taken into
account in formulating the standard of care, not whether a duty of care
arises. The discretionary nature of police work therefore provides no reason to
deny the existence of a duty of care in negligence.
[52] Police, like other professionals, exercise
professional discretion. No compelling distinction lies between police and
other professionals on this score. Discretion, hunch and intuition have their
proper place in police investigation. However, to characterize police work as
completely unpredictable and unbound by standards of reasonableness is to deny
its professional nature. Police exercise their discretion and professional
judgment in accordance with professional standards and practices, consistent
with the high standards of professionalism that society rightfully demands of
police in performing their important and dangerous work.
[53] Police are not unlike other professionals
in this respect. Many professional practitioners exercise similar levels of
discretion. The practices of law and medicine, for example, involve discretion,
intuition and occasionally hunch. Professionals in these fields are subject to
a duty of care in tort nonetheless, and the courts routinely review their
actions in negligence actions without apparent difficulty.
[54] Courts are
not in the business of second-guessing reasonable exercises of discretion by
trained professionals. An appropriate standard of care allows sufficient room
to exercise discretion without incurring liability in negligence. Professionals
are permitted to exercise discretion. What they are not permitted to do is to
exercise their discretion unreasonably. This is in the public interest.
(ii) Police pursuit
[201] The defendants concede that the RCMP owe a duty of care to persons
using the roadway when a pursuit is underway.
[202] The case law clearly establishes the existence of such a duty: Radke
v. MS (Litigation guardian of), 2005 BCSC 1355, affd by 2007 BCCA
216; Burbank et al. v. Bolton et al., 2005 BCSC 1506,
affd by 2007 BCCA 215; Doern v. Phillips Estate (1995), 2
B.C.L.R. (3d) 349 (S.C.), affd by (1997), 43 B.C.L.R. (3d) 53 (C.A.); McVea
v. Beckett and others, (19 October 2001) Vancouver C966558/S007799 (BCSC); Blaz
v. Dickinson (1996), 23 M.V.R. (3d) 70 (Ont. C.J.); Noel (Committee of)
v. Botkin (1995), 9 B.C.L.R. (3d) 21 (S.C.); Jones v. Denomme,
[1994] O.J. No. 611 (S.C.J.); Moore et al. v. Fanning et al. (1987) 60
O.R. (2d) 225 (H.C.J); OReilly v. D.R.C. (1978), [1979] 3 W.W.R. 145
(Man. Q.B.).
[203] This case is slightly different from the aforementioned authorities
on the basis that the RCMP did not activate their vehicles lights and siren.
As I detailed earlier, the activation of lights and siren is part of the RCMP definition
of a pursuit and is also required for the RCMP to exercise the privileges
granted by s. 122 of the Motor Vehicle Act. The defendants assertion
that there was, in fact, no pursuit in this case relies in part on this
distinction.
[204] Of all the authorities listed above, Radke is particularly
relevant to the circumstances of this case, although it was not disputed that
the RCMP owed the plaintiff a duty of care as the defendants do here. In the
result, Bennett J. found the RCMP liable in negligence for the pursuit of a
stolen vehicle. Most importantly in the context of this case, Bennett J.
considered the actions and knowledge of the RCMP leading up to the decision to
commence a pursuit in finding that they breached the requisite standard of
care.
[205] In Radke, the RCMP came across a parked stolen car and
planned to disable it before its occupants returned. However, the RCMP did not
disable the car nor was a perimeter established around the vehicle. The
occupants returned to the car and fled the scene. The RCMP then pursued the
stolen car, which ran a stop sign and struck the plaintiffs vehicle.
(iii) Non-pursuit situations
[206] The defendants argue that the RCMP did not owe a private law duty of
care to the plaintiff in the circumstances of this case. At the very least, the
defendants submit that the RCMP did not owe a private law duty of care prior to
the initiation of the pursuit, which I have already found as fact to have taken
place.
[207] In support of this position the defendants cite several decisions
which they say establishes that there is no private law duty of care owed by
the RCMP for various acts or omissions committed in the exercise of their
public responsibility to preserve the peace and prevent crime: Burnett v.
Moir, 2011 BCSC 1469; Callan v. Cooke, 2012 BCSC 1589; Project
360 Investments Ltd. (Sound Emporium Nightclub) v. Toronto Police
Services Board, 2009 CanLII 36380 (Ont. S.C.J.) [Project 360].
[208] In all of these cases the action in negligence failed because a duty
of care was found not to exist for a lack of proximity. I note that both Callan
and Project 360 were successful applications to strike the pleadings in
negligence as disclosing no cause of action. Burnett, on the other hand,
is a trial decision.
[209] In Burnett, the plaintiff, Mr. Burnett, was
assaulted at a night club by an unknown assailant and sustained a moderately
severe brain injury. The nightclub had a history of violent incidents occurring
on its premises that was known to the police. Mr. Burnett claimed in negligence
against the police for, inter alia, a failure to identify the night club
as a nuisance to the public and take pre-emptive steps to adequately warn potential
patrons of the possible danger. In order to succeed in the claim, Mr. Burnett
sought to establish that the police owed him a private law duty of care for
acts or omissions committed in the exercise of their public responsibility to
preserve the peace and prevent crime.
[210]
In finding that the police did not owe Mr. Burnett a duty of care with
respect to their failure to warn him of the potential risk posed by attending
the night club, Cullen J. states at paras. 405, 410-414:
[405] The cases in which police failure to act, or
negligent actions in connection with a potential victim have engaged a duty of
care, in Mooney, Jane Doe and Schacht, either involve specific
ascertainable threats to specific ascertainable victims or specific
ascertainable threats to a particular class of victim.
There are thus clear
distinctions to be drawn between the present case involving the plaintiffs
membership in a large indeterminate pool of potential victims and a
non-specific threat, which the evidence reveals, was not unique to the Cheers
pub.
[410]
It is objectively improbable that the plaintiff
would have encountered a warning had one been issued, in respect of the Cheers
pub, given his lack of connection to Delta and unfamiliarity with the Delta
Defendants website or any local news sources. Equally, it is objectively
improbable that he would have heeded any such warning had he encountered it,
given the evidence of his attendance at other bars or nightclubs with similar
environments to Cheers, and his consumption of drugs that would tend to affect
his judgment.
[411] The presence or absence of a close causal connection
between the negligence alleged and the harm caused is a factor in determining
proximity.
[412] Where, as here, the causal connection, insofar as
the failure to warn is concerned, is remote and speculative rather than close,
it cannot be said that the nexus between the parties is strong or compelling.
[413] For those reasons, while finding some limited
evidence of a connection between the Delta Defendants and prospective Cheers
patrons arising from the police corporate knowledge that a person entering
Cheers was likely to be exposed to an environment involving some violent or
turbulent circumstances, I am not satisfied the evidence reaches the level of
establishing a close and direct relationship featuring the indicia of proximity
identified by Chief Justice McLachlin in Hill v. Hamilton Wentworth, supra, or
manifested in other decisions such as Jane Doe, Mooney, or Schacht.
[414] I thus conclude the
relationship at issue does not sustain sufficient proximity to found a duty of
care. The plaintiff was but one of a large indeterminate pool of potential
patrons of Cheers, rather than an identifiable potential victim of a specific
threat.
[211] In Callan, the plaintiff, Mr. Callan, alleged
that he was sexually assaulted numerous times by Mr. Cooke, who was the
assistant hockey coach of Mr. Callans midget hockey team. Mr. Cooke was also
an RCMP officer and Mr. Callan alleged that many of the sexual assaults took
place while Mr. Cooke was acting in that professional capacity. The defendants
applied to strike out the portions of Mr. Callans pleadings that claimed
against the RCMP for negligent investigation of Mr. Cooke. Specifically, Mr.
Callan claimed that the RCMP was negligent in investigating complaints by
others against Mr. Cooke and that this exacerbated the effect and impact of the
alleged assaults on Mr. Callan.
[212]
In deciding to grant the defendants application and strike the
pleadings of negligent investigation against the RCMP, Arnold-Bailey J. states
at paras. 63-68:
[63] I find that the plaintiff is not sufficiently
proximate in relation to the RCMP to give rise to a private law duty owed to
him by the RCMP in negligent investigation. It is not reasonably foreseeable
that the RCMPs negligent investigation of other complaints against Mr. Cooke
would cause the type of harm alleged by the plaintiff. Without facts pleaded as
to the nature of those other complaints there is no basis upon which to find a
proximate relationship existed between the plaintiff and the RCMP. This is particularly
so as the plaintiff made no complaints to the RCMP for ten years after the
alleged sexual assaults of him ceased. His claim against Mr. Cooke was not
known to the RCMP. Therefore, during the most relevant time period, the
plaintiff was not within a discrete class of individuals reasonably known to be
affected by the alleged failure to investigate by the RCMP.
[64] Not falling within the failure to warn exception, I
find that as an alleged victim of a crime, based on Wellington, the RCMP
do not owe a private law duty of care to the plaintiff.
[65] The plaintiff is also alleging that the RCMP owed
him a private law duty to conduct an investigation of other complainants as to
the conduct of Mr. Cook. In this regard, his position is similar to that of the
father in Thompson insofar as he is not sufficiently proximate to found
a duty of care.
[66] In addition, as stated in Burnett, I find
that the plaintiffs claim of negligent investigation is too speculative. There
is nothing in the pleadings to support a finding that, but for a negligent
investigation, the plaintiff would have not been harmed. Here the connection
between the investigation and the harm is too speculative to support a cause of
action. Likewise, the plaintiffs claim that the negligent investigation of Mr.
Cooke aggravated or perpetuated the harm to him is also too speculative.
[68] Therefore, absent
limited exceptions, the police, including the RCMP, do not generally owe a
private duty of care to victims or potential victims with regards to their
investigations. They owe a duty to the public to carry out proper criminal
investigations. I do not see that duty abrogated in any way because the alleged
wrongdoer in this case is a member of the RCMP.
[213] In Project 360, the plaintiffs operated a nightclub.
An individual entered the nightclub with a concealed firearm and ultimately
shot a patron. The plaintiffs asserted that they suffered economic damages as a
result of this incident and sought to claim against the police in negligence.
The plaintiffs argued that the individual was known to police as a gang member,
as involved in firearms trafficking, as a person with a history of violent
criminal behaviour, and as the subject of an undercover investigation. As such,
the plaintiffs contended that the police should have prevented the individual
from entering the nightclub that evening and/or warned the plaintiffs of the
individuals intention to enter. The defendants sought to strike the portions
of the plaintiffs pleadings that were premised on the proposition that
regardless of whether the police had any knowledge of a specific link between
the individual and the plaintiffs, the police owed the plaintiffs a general duty
of care and that by failing to arrest the individual they breached this duty of
care.
[214]
In finding that the pleadings at issue should be struck for disclosing
no cause of action, MacDonnell J. states at paras. 19, 28:
[19] In my opinion, it is manifest from the statement of
the principles governing the delivery of police services set forth in s. 1 of
the PSA, the duties of police officers set forth in s. 42(1), and the
common law powers and duties incorporated by s. 42(3), that the duty of the
police is to the public as a whole and not to specific individuals. To
paraphrase language used by the Supreme Court of Canada in Edwards v. Law
Society of Upper Canada, supra, and borrowed by the Court of Appeal
in Williams, supra, in fulfilling their duties the police are
required to act in the general public interest and to balance a myriad of
competing interests the nature of which are inconsistent with the imposition of
a private law duty of care.
[28] As I suggested
earlier, the focus of the Chief Justice in Hill v. Hamilton-Wentworth Police
Service Board, and of Henry J., Moldaver J., and MacFarland J. in Jane
Doe, on the specific aspects of the plaintiffs situation vis à vis
the police that distinguished them from other members of the public would not
have been necessary if there were a general private law duty of care owed by
the police to individual members of the public. Accordingly, in order for the
plaintiffs to maintain an action in negligence against the police for their
failure to arrest McCalla prior to October 5, 2002, they must plead facts on
the basis of which it could be found that a special relationship of proximity
existed prior to October 5, 2002. The Statement of Claim contains no facts of
that nature. The plaintiffs have not pleaded that prior to October 5, 2002, the
police had any knowledge that McCalla had any link whatsoever to the plaintiffs
or their nightclub, that he had ever been there, or that he ever intended to go
there. Further, the plaintiffs have not pleaded that the police had any
relationship with them prior to October 5. Based on the facts pleaded in the
Statement of Claim, prior to October 5 the plaintiffs were in the same position
vis à vis the police as every other member of the public.
Analysis – Does a duty of care
exist in this case?
[215] In my opinion the RCMP owed a duty of care to the plaintiffs in this
case.
[216] The case law is clear that the police owe a duty of care to other
users of the roadway when conducting a pursuit. The defendants concede this.
[217] I am not persuaded by the defendants argument that this duty of
care only exists when the police engage in a pursuit that meets the technical
definition of the word. Rather, I find that this duty of care exists anytime
the police pursue or chase a suspect, within the ordinary meaning of those
words. I have already found as fact that the RCMPs actions in this case
constituted a chase.
[218]
This is in line with the view of the
Saskatchewan Court of Queens Bench in Nygaard v. Sears Canada Inc.,
2002 SKQB 239. In that decision, Laing J. found that a Sears store security
officer owed a duty of care to the plaintiff, who was riding a bike when she
collided with a suspect being pursued on foot by the security officer. Laing J.
states at para. 13:
[13] Previous Canadian case
law amply establishes that persons authorized by law to pursue persons
suspected of crime nevertheless owe a duty of care to members of the public
placed at risk by such pursuit. This duty of care applies to police officers
who have a duty to apprehend suspected criminals, and it follows the same duty
rests on persons who are authorized by law to pursue a suspected criminal, but
do not have a duty to do so. The duty of care exists because it is reasonably
foreseeable that a person who is being pursued will take risks in an attempt to
escape apprehension. It is recognized that carelessness on the part of a
pursuer that could cause damage to a member of the public establishes the
necessary proximity between the pursuer, and the members of the public who are
placed at risk.
[219] The B.C. Court of Appeal decision in Radke demonstrates that
this duty of care comes into play at the point at which it is reasonably
foreseeable that a pursuit could occur. As such, the knowledge, decisions, and
actions of the police leading up to the initiation of a pursuit are relevant to
determining whether the police breached the required standard of care.
[220] In this case I have found as fact that Constables Huff and Brand
were both aware of the fact that Mr. Guliker was a flight risk at the time the
BOLF was sent out. At this point, it was reasonably foreseeable that Mr.
Guliker would flee when approached. The RCMPs additional knowledge that Mr.
Guliker was suicidal and had stated an intention to jump into traffic only
served to heighten the likelihood that Mr. Guliker would flee. Consequently, I
find that the RCMP owed a duty of care to other persons using the roadway in
their decisions and actions in relation to Mr. Guliker that preceded the
actual chase.
[221] I agree with the defendants that there is not a general or
overarching private law duty owed by the police to individual members of the
public. In my view, however, the cases cited by the defendants where no duty of
care existed are distinguishable from the circumstances in this case.
[222] In Burnett, Cullen J. found the plaintiff to be from
a large indeterminate pool of potential victims at risk from a non-specific
threat (para. 405). In Project 360, the threat was arguably more
specific but the potential pool of victims was not. MacDonnell J. found the
plaintiffs to be in the same position vis à vis the police as every
other member of the public (para. 28). In Callan, Arnold-Bailey J.
found that the plaintiff was not within a discrete class of individuals
reasonably known to be affected by the alleged failure of the police (para.
63).
[223] The findings in Burnett, Project 360, and Callen
are not helpful here. Rather, in the words of Cullen J. in Burnett,
there is in this case a specific ascertainable [threat] to a particular
class of victim (para. 405).
[224] As
soon as it became clear to the RCMP that Mr. Guliker was a flight risk, he
constituted a specific ascertainable threat to other users of the roadway, a
determinate class of victim to whom it is already established that a duty of
care is owed by the police in certain situations: e.g. ORourke, Radke,
Doern.
[225] In other words, because Mr. Guliker constituted a flight risk, the
relationship between the RCMP and other users of the roadway was sufficiently
close and direct that the RCMP ought to have them in mind as potentially harmed
by their actions taken in respect of Mr. Guliker.
[226] The defendants submit that the following policy considerations
should act to negate any duty of care in this case: (1) conflicting
obligations, and (2) indeterminate liability. I address these in turn.
[227] In Hill, McLachlin C.J. found the potential for conflict
between a duty of care in negligence and other duties owed by police to be an
unconvincing reason for rejecting a duty of care on police to a suspect under
investigation (para. 48). I conclude similarly in this case.
[228] It seems doubtful that incompatible obligations will result from
recognizing that the police owe a duty of care to users of the roadway when
dealing with an individual who is a known flight risk. Even if a conflict can
reasonably be posited, it must give rise to a real potential for negative
policy consequences. I see no such potential on the evidence before me.
[229] The defendants submit that recognizing a duty of care in this case
will expose the RCMP to indeterminate liability as the duty would extend to
anyone who is hurt by a person who sees the police and flees.
[230] First, I have no evidence before me as to how large a class of
potential claimants this is. Second, I have already stated that the duty is
limited to situations where the police are aware that a suspect is flight risk.
Third, this argument ignores the important filtering role played by the
standard of care analysis in police negligence claims. For liability to ensue,
the police must undertake action or inaction that falls outside the behaviour
of a reasonable police officer in the circumstances. With all these
considerations in mind, I fail to see any spectre of indeterminate liability.
(b) Standard of care
(i) Principles
[231] 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: Doern (BCSC.) at
para. 68, Doern (B.C.C.A.) at para. 13. That standard
was applied in Radke and Burbank, which were both affirmed on
appeal. This is the standard that I apply here.
[232]
Chief Justice McLachlin elaborates on this
standard in Hill at para. 73:
[73] I conclude that the
appropriate standard of care is the overarching standard of a reasonable police
officer in similar circumstances. This standard should be applied in a manner
that gives due recognition to the discretion inherent in police investigation.
Like other professionals, police officers are entitled to exercise their
discretion as they see fit, provided that they stay within the bounds of
reasonableness. The standard of care is not breached because a police officer
exercises his or her discretion in a manner other than that deemed optimal by
the reviewing court. A number of choices may be open to a police officer
investigating a crime, all of which may fall within the range of
reasonableness. So long as discretion is exercised within this range, the
standard of care is not breached. The standard is not perfection, or even the
optimum, judged from the vantage of hindsight. It is that of a reasonable
officer, judged in the circumstances prevailing at the time the decision was
made circumstances that may include urgency and deficiencies of information.
The law of negligence does not require perfection of professionals; nor does it
guarantee desired results (
). Rather, it accepts that police officers, like
other professionals, may make minor errors or errors in judgment which cause
unfortunate results, without breaching the standard of care. The law
distinguishes between unreasonable mistakes breaching the standard of care and
mere errors in judgment which any reasonable professional might have made and
therefore, which do not breach the standard of care.
[233]
In Radke, Bennett J. held that when
examining the decisions and actions of the police in relation to the pursuit of
a suspect the primary and overriding principle is public safety (para. 77). The
legislation and RCMP policies governing police pursuits are relevant to
determining the standard of care. Justice Bennett states at paras. 71-77:
[71] The statutes and policy provisions provide the context
within which to assess whether there was negligence on the part of [the police].
[72] I add that no expert evidence was provided on the issue
of how a reasonable police officer would conduct himself or herself. However,
while not saying expert evidence would be inadmissible, in this case, given the
facts, the statutes, the policy and case law, I do not need expert evidence to
assess whether negligence existed.
[73] In assessing the conduct of [the police] it is necessary
to determine whether he complied with the policy.
[74] In Noel (Committee of) v. Botkin, (1995), 9
B.C.L.R. (3d) 21, [1995] 7 W.W.R. 479 (S.C.), Clancy J. summed up the approach
in this way, at para. 65:
In summary, the question to be
asked in assessing the conduct of police officers during pursuit is whether
they, viewed objectively from the viewpoint of a reasonable police officer,
acted reasonably and within the statutory powers conferred upon them. In
considering that question, the Court must take into account that officers will
be expected to perform the duties imposed on them by statute and to comply with
policies adopted by the force to which they belong. A failure to comply with
policy will not necessarily constitute negligence, nor will an error in
judgment. Officers are exempted from compliance with certain traffic rules,
provided they meet they meet the requirements of s.118 of the Motor Vehicle
Act. There must be a recognition that officers are required to exercise
judgment in balancing the competing interests of arresting wrongdoers and
protecting citizens.
[75] Therefore, [the police officers] compliance or
non-compliance with the pursuit policy is a factor, albeit an important factor,
in determining whether he was negligent. See also Doern, supra,
at para. 69; Doern v. Phillips Estate (1997), 43 B.C.L.R. (3d) 53, 2
D.L.R. 108 (C.A.), at para. 15-16.
[76] When assessing negligence in the context of a police
pursuit a balancing of interests must occur. Society accepts that in exercising
lawful duties, police may at times interfere with innocent bystanders: See Blaz,
supra, at 50. It is important not to lose sight of the fact that police
officers are exercising judgement often quickly and in highly stressful
circumstances. One must not to analyze the circumstances, from the relative
calm of a courtroom, without keeping this in mind.
[77] At the risk of over-simplification, the following
principle factors may be derived from the relevant statutes and policy relating
to police pursuit:
1) The primary and overriding
principle is public safety.
2) A pursuit may only be initiated
when other alternatives are not available.
3) There must be a risk assessment
in terms of the public safety before a pursuit is initiated.
4) The risk assessment is ongoing
throughout the pursuit.
5) The factors to consider in the
risk assessment include:
i) the seriousness of the offence;
ii) driving conditions;
iii) volume and nature of pedestrian and vehicular traffic
that is or might be reasonably expected;
iv) whether the suspect can be identified by other means;
v) the likelihood of fatalities, injury
and;
vi) damage to property.
(ii) Expert Evidence
[234] In
addition to the evidence of the RCMP officers and lay witnesses, the plaintiffs
tendered a retired police officer, Orville A. Nickel, as an expert witness. He
was tendered as an expert on the standard of care expected of reasonable police
officers relating to incident investigation, management, and intervention. The
defendants objected to the admissibility of Mr. Nickels report, primarily
based on his dated qualifications.
[235] I marked Mr.
Nickels report as an exhibit with the proviso that I would hear his evidence
and cross-examination and reserve on the question of admissibility. It was
suggested that there are conflicting decisions on whether such a report is
necessary and therefore admissible: Doern, Radke, Burbank, and Camaso
Estate v. Saanich (District), 2013 BCCA 6.
[236] I agree
with the defendants that Mr. Nickels credentials are dated on the subject
matter he is tendered as an expert in, and therefore his opinions are of
limited value. However, in my view expert evidence is not necessary to decide the
issues in this case, as was also found to be the case in both Radke and Burbank.
The matter here is not similar to the situation in Camaso, which
concerned a police officers firearm use. Given the facts, the applicable statutes
and policy, and the case law, I do not need expert evidence to determine
whether negligence existed in this case. As such, I have not considered Mr.
Nickels evidence.
(iii) Analysis – Did the RCMP breach the
required standard of care?
[237] The relevant
statutory and policy provisions provide the context within which to assess
whether the RCMP officers were negligent. Section 122 of the Motor Vehicle
Act grants an exemption to police conducting a pursuit from the rules
governing the operation of motor vehicles. In this case the RCMP officers
exceeded the speed limits and proceeded through a stop sign without stopping
when chasing Mr. Guliker.
[238] In my
opinion the chase of Mr. Guliker by the RCMP officers constituted a pursuit
within the definition of the Emergency Vehicle Driving Regulation. They
were exercising the privileges granted by s. 122 of the Motor Vehicle Act,
as described above, for the purpose of apprehending Mr. Guliker who was
clearly attempting to evade apprehension. The Emergency Vehicle Driving
Regulation required the RCMP to activate their emergency lights and siren
during this pursuit, which they did not do. However, this does not negate the
fact that it was still a pursuit. In deciding to both initiate or continue a
pursuit, the RCMP were required by the Emergency Vehicle Driving Regulation to
weigh the seriousness of the offence and the need for immediate apprehension
against the risk posed by the pursuit to public safety. A pursuit may only be
initiated and continued when the seriousness of the situation and the necessity
of immediate apprehension outweigh the risk to public safety created by the
pursuit.
[239] The
principles governing the duty of care relating to police pursuit, as articulated
in Radke (BCSC) at para. 77, include this risk assessment. The primary
and overriding principle is public safety and pursuits should only be initiated
when other alternatives are not available.
[240] Mr.
Guliker was alleged to have breached a no-contact order by being present at the
family church. He was also known to be suicidal, to have stated an intention to
jump into traffic, and to be a flight risk.
[241] The RCMP officers
said they were unfamiliar with the area. The roads were not highways. They were
single lane roads in a rural area with a default speed limit of 50 kph.
[242] There were
at least three other officers available to assist with Mr. Guliker, four if you
include Constable Labbee, who Constable Huff later radioed to request a spike
belt. Following the meeting at the Chilliwack Motor Inn where the initial plan
was formed, these three officers were deployed in the direction of the two
other likely avenues of escape for Mr. Guliker from his location on Bustin
Road.
[243] However,
after their deployment Constable Huff never established their locations before
approaching Mr. Guliker. The only evidence of communication with the other
officers regarding the plan for dealing with Mr. Guliker is Constable Huffs
instruction to Constable Wilson to hang back.
[244] Thus
having enlisted the assistance of these officers, Constable Huff met with them
at the Chilliwack Motor Inn, and strategically deployed them in relation to
Mr. Gulikers known location, Constable Huff then proceeded not to involve
them in the planned approach of Mr. Guliker along Bustin Road. Had Constables
Huff and Brand conducted a proper risk assessment at this point, they would
have realised that a likely outcome, if not the most likely outcome, of their
approach along Bustin Road was Mr. Guliker fleeing in his vehicle. They would
also have realised that they had no clear plan in the case of this eventuality.
[245] While all
matters involving suicidal individuals are somewhat time sensitive, it should
have been clear to Constables Huff and Brand that time was not of the
essence, to use a colloquial expression, at the time of their approach. They
knew Mr. Guliker was parked and waiting to speak with Wendy Guliker, who he
believed to be on the way to meet him. They also knew since at least 12:15 p.m.
that morning that Mr. Guliker was suicidal, and had been on occasion in the
past too, and nothing untoward had transpired in the hour and a half since.
[246] There was
time for Constables Huff and Brand to discuss the information theyd gleaned
from Wendy Guliker and Mr. Struys, establish the location of the other officers
theyd deployed to assist with Mr. Guliker, and conduct a proper risk
assessment, recognising the likelihood that Mr. Guliker would flee upon seeing
the police.
[247] At this
point, I note the B.C. Court of Appeals recognition of the significant risk to
public safety posed by the possibility of an individual in a fragile or
unstable mental state operating a motor vehicle: Camaso at para. 51.
[248] Instead,
Constables Huff and Brand approached Mr. Guliker without knowing the location
of the other officers available to assist them and aware that Mr. Guliker would
see them approaching and was likely to flee. I can reach no other reasonable
conclusion than that the RCMP plan at that moment was captured by words if he
runs, well chase him.
[249] Once Mr.
Guliker accelerated down Bustin Road, it was obvious to the RCMP officers that
Mr. Gulikers sighting of their vehicles precipitated his flight. A proper risk
assessment at this point would have alerted the officers to the significant
public safety risk of chasing a suicidal individual who is determined to evade
apprehension down unfamiliar rural roads at high rates of speed.
[250] Nevertheless,
the officers commenced and continued a pursuit of Mr. Guliker up to the point
of the Collision.
[251] To
summarize, in my opinion Constables Huff and Brand failed to conduct a proper
risk assessment at two critical times: (1) before deciding to proceed down
Bustin Road without a plan in place that recognised the likelihood of Mr.
Guliker fleeing in his vehicle, and (2) after proceeding down Bustin Road toward
Mr. Gulikers location and seeing him accelerate away. A proper first risk
assessment would have precipitated the development of a plan to address the
likelihood of Mr. Guliker fleeing. A proper second risk assessment would
have called off the chase and considered other options.
[252] I find
that Constables Huff and Brand did not act within the standard of a reasonable
police officer, acting reasonably and within the statutory powers imposed upon
them in the circumstances of this case. In the result, the RCMP officers
breached their duty of care owed to the plaintiffs.
(c) Causation
[253] The
defendants submit that even if the RCMP breached a duty of care owed to the
plaintiffs, the RCMP did not cause the collision. Their submissions in this
regard are premised on the proposition that the RCMP were not pursuing
Mr. Guliker.
[254] I have
found as fact that the RCMP officers were chasing Mr. Guliker when the
Collision occurred.
[255] The test
for causation is the but for test, as articulated by the Supreme Court of
Canada in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at
paras. 8-11.
[256]
In the circumstances of this case, I would adopt the conclusion of Lowry
J.A. in Burbank at para. 86:
[86]
The Supreme Court of
Canada recently affirmed, in Resurfice Corp. v. Hanke, 2007 SCC 7 at
paras. 20-28, what is referred to as the "but for" test in negligence
cases. Where, as here, it can be applied, the test leads to a finding of causation
if it can be said that but for the impugned conduct the injury that is the
subject of the claim would not have been suffered. I do not see how it could be
said that this collision would have occurred if no pursuit had been commenced.
[257] In my
opinion, but for the RCMPs chase or pursuit of Mr. Guliker, the Collision would
not have occurred.
VI. Apportionment of Liability
(a) The legal principles
[258]
Where the negligence of two or more persons
caused the plaintiff harm, the court must determine the degree to which each
person is at fault. The apportionment of liability is governed by ss. 1, 4 of
the Negligence Act, R.S.B.C. 1996, c. 333:
Apportionment of liability for damages
1 (1) If by the fault of 2 or more persons damage or
loss is caused to one or more of them, the liability to make good the damage or
loss is in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.
(3) Nothing in this section operates to make a person liable
for damage or loss to which the person’s fault has not contributed.
Liability and right of contribution
4 (1) If damage or loss has been caused by the fault
of 2 or more persons, the court must determine the degree to which each person
was at fault
[259]
The apportionment of liability is done on the
basis of the degree to which each person was at fault, not on the extent to
which each persons fault caused plaintiffs harm: Bradley v. Bath, 2010
BCCA 10 at para. 24; Chambers v. Goertz, 2009 BCCA 358 at para. 55.
[260]
In this case I must apportion liability between
Mr. Guliker and the RCMP.
[261]
In assessing the relative degrees of fault, a
number of factors may be considered. These factors were summarized by Groves J.
in Aberdeen v. Langley (Township), 2007 BCSC 993. This summary has been
consistently relied as a synopsis of the general legal principles to apply in
determining relative degrees of fault for the purpose of apportioning liability.
The defendants did not take issue with this analysis.
[262]
Justice Groves states in Aberdeen at
paras. 62-65:
[62] Thus, fault is
to be determined by assessing the nature and extent of the departure from the
standard of care of each of the parties. Relevant factors that courts have
considered in assessing relative degrees of fault were summarized by the
Alberta Court of Appeal in Heller v. Martens, supra, at paragraph
34 as follows:
1. The nature of
the duty owed by the tortfeasor to the injured person …
2. The number of
acts of fault or negligence committed by a person at fault …
3. The timing of
the various negligent acts. For example, the party who first commits a
negligent act will usually be more at fault than the party whose negligence
comes as a result of the initial fault …
4. The nature of
the conduct held to amount to fault. For example, indifference to the results
of the conduct may be more blameworthy …Similarly, a deliberate departure
from safety rules may be more blameworthy than an imperfect reaction to a
crisis…
5. The extent to
which the conduct breaches statutory requirements. For example, in a motor
vehicle collision, the driver of the vehicle with the right of way may be less
blameworthy …
[63] Many of the
above-noted factors are discussed in Chiefetz, Apportionment of Fault in
Tort, supra, at pp. 102-104. Considering that, I conclude it would be
appropriate to add the following as relevant factors:
6. the gravity of
the risk created;
7. the extent of
the opportunity to avoid or prevent the accident or the damage;
8. whether the
conduct in question was deliberate, or unusual or unexpected; and
9. the knowledge
one person had or should have had of the conduct of another person at fault.
[65]
the fact that
the fault results from an active versus a passive act of a party should not
impact on the assessment of the degree of relative fault.
(b) The position of the
parties
[263] The plaintiffs defer to ICBCs submissions on the apportionment of
liability between Mr. Guliker and the RCMP.
[264] ICBC
submits the following table regarding how each factor from Aberdeen
should be applied in the context of this case:
Factor | Factors applied to the Conduct of |
The | ·
|
The | The · · · · · · ·
|
The
| · ·
|
The | · ·
|
The | · ·
|
The | · ·
|
The | · ·
|
Whether | ·
|
The | · ·
|
[265] ICBC further submits that while Mr. Guliker clearly shares in the
blame for the accident, he was also a victim on August 10, 2008. Mr. Guliker was
brain injured, suicidal, and in a poor state of mind. Rightly or wrongly, Mr.
Guliker made it evident he viewed any approach by the police as an
attack and a threat, something the officers failed to properly take into
account at critical times. ICBC says that the defendants should shoulder most
of the blame as a result.
[266] The defendants argue that the jurisprudence in British Columbia
establishes a range from 10% to 25% in cases of motor vehicle accidents resulting
from negligent police pursuits. The defendants further submit that RCMP liability,
if found, should be at the low end of this range. They argue that Mr. Gulikers
erratic driving arose on the mere approach of the RCMP vehicles, thus any
errors made by the RCMP officers were minor compared to Mr. Gulikers negligence.
(c) Relevant jurisprudence
[267] In Radke, an RCMP officer came across a stolen car
while en route to a call. Over a 20 minute period before three teenagers
returned to the car and drove away, the RCMP officer failed to disable the
vehicle or set-up a perimeter around it. At first the RCMP just followed the
vehicle, which was initially travelling under the speed limit. Upon the RCMP
activating lights and sirens, however, the stolen vehicle accelerated away, ultimately
entering an intersection and colliding with Mr. Radkes vehicle. The entire
pursuit lasted just 46 seconds and took place along residential streets. Bennett
J. apportioned liability 85% to the vehicle driver and 15% to the RCMP.
[268] In Burbank, an RCMP officer noticed a vehicle whip
out of a laneway without stopping and then fail to stop at a stop sign. Based
on that driving pattern, the RCMP officer suspected the driver could be
impaired. The RCMP officer followed the vehicle and ran the licence plate. This
search flagged the vehicle as the focus of previous police interest but gave no
information as to why. The RCMP officer then activated the emergency lights but
not the siren. The vehicle being pursued stopped almost immediately but then
quickly accelerated away again. The RCMP officer then gave chase with both
lights and siren on but shortly after decided to terminate the pursuit.
However, before the RCMP officer could disengage the siren the vehicle being
pursued entered an intersection and collided with the Burbank family vehicle. Maczko
J. apportioned liability 85% to the vehicle driver and 15% to the RCMP.
[269] In Doern,
police officers in an unmarked vehicle noticed a slow-moving ratty,
unkempt and shoddy car that looked like it was weighed down by something in
the trunk. They moved up behind the vehicle, which then turned onto another
street and increased its speed. The police followed for several blocks, at
which point they decided to pull the car over and thus activated their lights
and sirens. The car started to pull over in apparent compliance. However, just
as it pulled over the vehicle sped away again at high speed. The officers lost
sight of the vehicle after two minutes of pursuit. However, within seconds
officers in another unmarked police car spotted the vehicle and picked up the
pursuit. Shortly thereafter the pursuit was taken over by a marked police car.
This police car also lost sight of the vehicle but nonetheless continued with its
lights and sirens on in the direction the officer believed the vehicle had
gone. This officer later regained visual contact with the vehicle being
pursued. In total, the pursuit occurred from Vancouver to Burnaby over a period
of about eight minutes and a distance of 14 kilometres, and involved five
different police units. Kirkpatrick J., as she then was, found that the pursuit
was conducted in a manner that violated police pursuit policy in a number of
respects. Ultimately, the vehicle being pursued ran a red light and hit Mr. Doerns
car. Kirkpatrick J. apportioned liability 75% to the vehicle driver and 25% to
the police.
[270] In McVea,
an RCMP officer parked in an unmarked police car was passed by a vehicle fitting
the description of a reported stolen car. The RCMP officer decided to follow
the vehicle and observed it run a stop sign. While following the vehicle, the RCMP
officer activated the emergency lights to navigate an intersection but then
turned them off again. When the vehicle began to accelerate away, however, the
officer engaged the emergency lights and sirens in pursuit. The pursuit lasted just
over a minute, occurred over a distance of 2.5 kilometres, and involved speeds
of up to 130 kph. Just as the RCMP officer decided to terminate the pursuit
because the vehicle being pursued was pulling away, the vehicle ran a stop sign
and collided with the McVea vehicle. Pitfield J. apportioned liability 90% to
the vehicle driver and 10% to the RCMP.
(d) Apportionment in this case
[271]
In determining the apportionment of liability in this case, I find the
observations of Finch J.A., as he was then, in Doern (B.C.C.A.) at para.
18 to be instructive:
[18] Every one must
recognize that the members of our police forces should not be unduly hampered
in the discharge of their difficult and often dangerous work. The police
vehicle pursuit policy is a guideline for officers which attempts to balance
the public interest in the apprehension of suspected criminals, with the need
to maintain reasonable levels of safety for the police and the public as the
police discharge their duties. Whether particular police conduct departs so far
from the guidelines and from the standard of care imposed by law, as to
constitute negligence is a heavily fact dependent question.
[272] In my
view, like the question of whether police conduct departs from the standard of
care imposed by law, the question of apportionment is also a heavily fact
dependent question. Notwithstanding the very able submissions of counsel, in
my opinion the RCMPs degree of culpability falls within the range of police
culpability in the cases Ive just discussed.
[273] I find
that the RCMP officers in this case were slightly less culpable than the police
were in Doern where the pursuit was lengthy and involved the violation
of police policy in numerous ways by several different officers and their
supervisors.
[274] On the
other hand, the RCMP in this case possessed knowledge of the risk posed by Mr.
Guliker which was not evident in relation to the culpable drivers in Bolton,
Radke, or McVea. For this reason, I find the RCMP here to be
slightly more culpable than the police in those authorities.
[275] As such, I
apportion liability 20% to the RCMP and 80% to Mr. Guliker.
VII. Summary
[276] In the
result, the plaintiffs are entitled to judgment against the Minister of Justice
and Attorney General of British Columbia, in accordance with these reasons.
[277]
If the parties are unable to agree on costs, they may set the matter for
determination at a later date.
The Honourable Mr. Justice Savage