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'This is about access to justice': B.C. man's civil case against criminally-charged Mountie can proceed

Brutality suit proceeds

A B.C. man has won the right to proceed with a lawsuit against a police officer for a rough arrest in 2016 that the Mountie has already been criminally charged over.

During the early morning hours of Feb. 18, 2016, Cuyler Richard Aubichon and Nathaniel Lazarus Basil were arrested in Prince George after they were found in a stolen pickup truck. The arrest, captured by a nearby security camera, showed an RCMP officer using a service dog to pull Aubichon out of the truck and onto the ground before elbowing him in the head. Basil's arrest was largely out of the camera's view but it appeared one of the officers had stomped on him.

One year ago, the BC Prosecution Service approved charges against three Mounties involved in the arrest. Cst. Joshua Grafton was charged with assault, assault with a weapon and obstruction of justice, while Cst. Wayne Connell and Cst. Kyle Sharpe were charged with assault causing bodily harm.

Aubichon filed a civil lawsuit naming Cst. Grafton in July 2020, a month after the officers were charged, but faced a significant legal battle because his claim was filed outside the typical two-year statute of limitations.

The law, however, states the limitation period does not start running until a person knows, or ought to have known, that the courts were an option for them.

In a judgment on June 17 in Kamloops, BC Supreme Court Justice Sharon Matthews ruled Aubichon could proceed with his lawsuit. The judge accepted Aubichon’s argument that he did not know he was able to — as an Indigenous man with negative past experiences with the RCMP — hold an officer legally accountable via a civil lawsuit until after the Crown filed criminal charges.

“I conclude that Mr. Aubichon’s claim raises a triable question as to whether systemic racism and violence on arrests affects whether a person subjected to such racism and violence knows he can hold police accountable for it,” Justice Matthews wrote in her decision, which awarded Aubichon costs.

Aubichon’s lawyer Michael Patterson says the case illustrates the barriers plaintiffs face when trying to sue the RCMP.

“This is about access to justice,” Patterson said, explaining the vast majority of people who have a civil case against the RCMP don’t have the money for a years-long protracted legal battle against high-powered lawyers who represent the government and police officers.

“So it requires a lawyer to take a risk to fund that case before they can even have a chance,” he added. “This was a massive challenge… to ensure that Mr. Aubichon’s matter can proceed to a point where he can see justice.”

A civil lawsuit is not always a straightforward venture from filing the claim to trial, Patterson said. “You could end up with applications like this, which is to cut you off at the knees and drive up your costs."

OTHER LAWSUITS

In addition to Aubichon’s lawsuit, Grafton has been named in two other civil claims alleging he used excessive force during an arrest involving a police dog.

Christopher Williams filed a claim last month over an arrest on Nov. 3, 2020 in Nanaimo, while David Banford filed a claim in Sept. 2020 with similar allegations related to an arrest in February 2019.

Grafton remains on active duty on Vancouver Island. He is scheduled to make his next court appearance on his criminal charges related to Aubichon’s arrest in Prince George on July 5.

While Aubichon grew up in Prince George, he has been living in Kamloops since being sentenced in April 2020 for a robbery and being banned from Prince George for the duration of his probation.

The BC RCMP declined to comment on the civil judgment Friday given that the criminal charges remain active.

None of the allegations in the civil claims or criminal case have been tested in court.



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