A semi-trailer driver who was tasered by Surrey Mounties after he pulled over outside a Surrey lumberyard to catch 40 winks has been awarded $317,120 by a B.C. Supreme Court judge.
Bradley Marvin Degen’s lawsuit against the Minister of Public Safety and Solicitor General of British Columbia was heard in B.C. Supreme Court in New Westminster with Justice David Crossin presiding.
The court heard two RCMP constables were dispatched to the lumberyard on the evening of July 25, 2016 in response to a complaint that a truck was parked outside the yard with its engine running.
“It was also reported that the driver of the truck had been observed and was possibly under the influence of alcohol and was now in the truck and unresponsive to efforts of the complainant to engage him,” Crossin noted in his reasons for judgment.
The constables climbed up onto both sides of the cab, peered through the windows with their flashlights and banged on the door.
“There is controversy in the evidence concerning the unfolding of events at this point, but what is clear is the plaintiff remained in his locked vehicle and the officers were frustrated in their attempts to engage with the plaintiff regarding the complaint,” Crossin noted. “Matters shortly evolved to the point where the police believed there existed lawful grounds to arrest the plaintiff for obstruction of justice and, in fact, so proceeded to effect the arrest. It is common ground that in the course of the arrest the windows of the truck were broken by the officers and both officers deployed their respective conductive energy weapons (CEWs). The plaintiff was tasered twice while inside the cab of his truck.”
Degen was taken to Surrey’s RCMP detachment and charged with obstruction of justice and assaulting a police officer but the charges were stayed some months later. Degen alleged he was tasered twice and punched in the head and torso multiple times by both police officers inside the truck’s cab. He claimed he suffered a “multitude” of injuries, among them a mild traumatic brain injury, and sued for punitive among other damages.
Degen testified he was carrying a load of lumber for delivery to Vancouver Cedar, located in Surrey. He arrived at about 5:30 p.m. but the warehouse was closed for the day, set to re-open the next morning. He parked on the street near the front gate and decided to sleep in his semi-truck that evening and after eating turned in for the night, leaving his keys in the ignition and motor running at high idle to run the air conditioning unit inside his cab.
He testified that when he lowered his window one of the constables climbed up onto the step of the truck, about three feet off the ground, put his hand in to hang onto the window and yelled at him to open the door.
“The plaintiff testified that he asked, through the window, what was going on. He testified that the officer kept yelling ‘open the f—king door,’” Crossin noted. “When asked at the trial about his unwillingness to open the door, the plaintiff testified that there was no value to your rights if you have to give them up at a certain point.”
Degen testified he told the officer at his window that he was there to deliver a load, said “you guys got the wrong guy” and “I’m going back to bed.” He conceded he might have told the officer or officers to “f—k off.” He brought his truck back up to high idle and rolled up the window, causing the officer at the driver’s side to let go of his grip and jump or fall to the ground.
He testified the police broke the windows on the driver’s and passenger’s side and both officers tasered him through the broken windows. He testified it was painful.
“The plaintiff testified he was tasered twice,” the judge noted. “The plaintiff had taken the position leading up to trial that the tasering had occurred more or less simultaneously as he sat in the cab of his truck. This accords with what would also be the evidence of the officers.”
Degen testified he was punched multiple times on his right temple while one of the officers unlocked his passenger door, got inside. He told the court they pinned him down, bent his left wrist and handcuffed him.
Inspector Jeffrey Harris of the Vancouver Police provided expert opinion evidence on police use of force, use of force techniques, reasonable grounds for the use of force and risk assessment obligations.
“Inspector Harris came to the view that based upon the assumed facts; in both scenarios, neither officer had reasonable grounds to begin using force on the plaintiff,” Crossin noted.
One of the constables, Jonathan Perkins, had been a Mountie for about one year prior to Degen’s arrest. He testified he had taken a three-day course on using a taser in June 2016 but had not deployed one before this night. He said he broke the passenger side window with his baton after seeing Degen with a raised fist. Believing the trucker was about to punch the other constable, he testified, he used his taser.
Constable Sven Spoljar had been a Mountie for about one-and-a-half years prior to the arrest. He also had taken the required course a few months prior but never deployed his taser before this incident.
“Constable Spoljar testified that from his perspective, at that point, you had a person you are attempting to investigate for impaired driving, sitting in the driver’s seat of a running vehicle, telling the police to ‘f—k off,’” Crossin noted in his reasons.
Spoljar testified he punched Degen in the head to distract and stop the trucker from reaching for what he described as “a big unknown.”
Given the confined space, he explained, he didn’t believe it would be practical, effective or safe to use a baton or pepper spray. Crossin concluded no additional punches were thrown at Degen inside the truck.
“I have found his claim of being punched multiple times about the head and torso by both officers is not supported by the evidence nor are other factual assertions in the notice of civil claim supported by the evidence,” the judge decided.
Sergeant Brad Fawcett provided expert opinion evidence on police use of force. He concluded Degen demonstrated active resistance and assaultive behavior and the range of force options appropriate in the circumstances.
Crossin said the credibility and reliability of witnesses played a “significant” role in the trial.
He found the use of force to break the window to “have been objectively reasonable in the circumstances” and assigned no liability “for the harm resulting from the closed-fist strike.” The judge also found both constables had a “subjective belief” that using a taser was “necessary in the circumstances.”
Crossin was not persuaded, however, that using a taser was “proportionate to the threat of a closed fist strike from the plaintiff.
“In coming to this conclusion, I am aware of the need for police to react quickly to situations. However, the level of force used in this circumstance was, in my view, disproportionate to the perceived threat. The officers had already gained access to the cab of the truck. The plaintiff was accessible.
“Accordingly, I find that the defendant is liable for harms resulting from this battery,” Crossin decided.
The judge further concluded that while the weight of evidence doesn’t allow for a finding of mild traumatic brain injury Degen “exhibits certain non-specific symptoms that can be associated with PTSD.”
“In conclusion, in my view the evidence and the findings in this case do not rise to the kind of conduct that supports an award of punitive damages. I make no award of punitive damages.”
But he did award Degen $160,000 in non-pecuniary damages, $15,000 in past income loss, $132,500 for future income loss, $7,500 for cost of future care, and $2,120 in special damages for a total of $317,120.