2005 BCSC 5 Myers v. Graham et al

Before: The Honourable Mr. Justice Truscott

Reasons for Judgment

Counsel for the plaintiff:	G.G. Macdonald
Counsel for the defendants:	R. Yamanouchi
Date and Place of Trial:	September 20-24, 28, 2004
	New Westminster, B.C.

The Claim

[1] Mr. Myers sues the defendants for personal injuries and consequences thereof arising out of the alleged negligence and/or breach of statutory duty and/or unlawful conduct and/or breach of his rights under the Canadian Charter of Rights and Freedoms on the part of Corporal Graham who is alleged to have failed to properly control his police dog who attacked Mr. Myers and failed to call off his dog to prevent injury to Mr. Myers. It is also alleged that Mr. Myers was unlawfully detained thereafter and arrested and charged with assaulting a police officer.

[2] Further, Mr. Myers alleges that Corporal Graham’s actions were deliberate in that he was aware of his dog’s propensity to attack civilians and his conduct was wilful and wanton and designed to deliberately inflict injury and/or serious bodily harm to Mr. Myers, and to cause him to be charged criminally.

[3] As a result of this conduct and the injuries he incurred Mr. Myers alleges that he suffered severe stress, strain, mental anxiety and psychological injury and submits that the wilful, reckless, outrageous, high-handed and heinous conduct alleged is conduct deserving of exemplary and/or aggravated damages as well as general damages.

[4] Although the statement of claim does not specifically plead the doctrine of scienter, Mr. Myers submitted that it is applicable to the circumstances and so I will consider its application as well.

[5] Interestingly the statement of claim also does not allege any assault personally by Corporal Graham which is somewhat different from Mr. Myers’ evidence at trial.

[6] The defendants claim that it was Mr. Myers who assaulted Corporal Graham and that Corporal Graham’s dog only assisted him in resisting the plaintiff who was obstructing him in the course of his duties as an RCMP officer. It is alleged that Corporal Graham only used as much force as was necessary to defend himself and arrest Mr. Myers.

[7] The defendants also allege that there is no right of action against Her Majesty the Queen in Right of the Province of British Columbia as any action can only be maintained against the Attorney General for British Columbia under s. 11 of the Police Act, R.S.B.C. 1996 c. 367. It is also alleged that no action lies against Corporal Graham personally by virtue of s. 21 of that Act unless he has been guilty of gross negligence or malicious or wilful misconduct. Short of that conduct only the Attorney General for British Columbia can be liable for Corporal Graham’s actions.

[8] All of these allegations arise out of a confrontation that occurred between Mr. Myers and Corporal Graham on the evening of January 21, 1998, in a neighbourhood park called Parkwood Estates between 73A Avenue and 129 Street in Surrey, British Columbia.

The Evidence

[9] At the time of the incident Mr. Myers was 34 years of age and was working for Wesbridge Steelworks Ltd. in Delta, British Columbia as a steel fabricator.

[10] Mr. Myers has a background that included some time in the army cadets where he was taught discipline, respect, first aid, combat and survival skills, and some time at the Eagle Combat and Training Academy in New Westminster where he took martial arts training involving hand-to-hand combat and the disarming of people as part of a bodyguard course.

[11] He has a high school diploma and has taken courses in computer programming and commercial diving as well as steel fabrication.

[12] It was his evidence that he was raised to be respectful of authority including police officers, and raised as well to be able to take care of himself.

[13] On January 21, 1998, Mr. Myers was married and living on 128B Street in Surrey which is the street immediately to the west of Parkwood Estates. An asphalt path connected 128B Street to the northwest corner of the park.

[14] At about 8:00 p.m. Mr. Myers was at home and decided to take his two dogs into the park for a last run before going to bed. His dog Chico was a cross-mongrel breed that Mr. Myers said never exceeded 75 pounds and his other dog, Jake, was a puppy and much smaller.

[15] He had the dogs on leashes and took them into the park through the path at the northwest corner of 128B Street. He said he had on no socks and had slipped on a pair of old hiker boots with no laces and the tongue out.

[16] At the entrance to the path into the park was a sign that said “Pets must be leashed” and “Park is closed from dusk to dawn”, but the evidence appears to be that the locals who had dogs ignored the sign.

[17] Mr. Myers said it was pitch black out when he entered the park and he took a quick scan as far as he could see to determine if anyone else was in the park that might be offended by the presence of his dogs. He did not see anyone and he let the dogs off their leashes so that they could run free for about five minutes before he whistled them back to him.

[18] In about the centre of the park, towards the south end slightly, was a knoll. The dog Chico ran down the paved pathway towards the knoll and disappeared around a couple of cedar trees that obscured a part of the knoll, as shown in photograph 24 of Exhibit 1.

[19] According to Mr. Myers his dog Jake only ran about five or six metres forward when Mr. Myers heard a yelp ahead and thought that Chico might have been killed. He was immediately concerned and hurried forward as fast as he could by curling his toes in his boots and scurrying or shuffling forward up the path towards the knoll. As he rounded the cedar trees and had the entire knoll in view he intercepted Chico who was coming back limping.

[20] Mr. Myers scanned ahead and saw the silhouette of a man standing on the east side of the knoll facing him. He estimated that this man was about 24 metres or 78 feet away at that time.

[21] Mr. Myers said that he checked his dog Chico for blood and then yelled at the man “Did you hit my dog?”

[22] There was no response to this yell and Mr. Myers was upset and escalated his voice to perhaps a scream while he walked forward saying “Did you hit my f---ing dog?” At this point he said he had travelled about half the distance or about eight to twelve metres.

[23] He said he was not running but he was walking forward with purpose and as he approached the man said “Stay back, I am working my dog”, or “Stop, I am working my dog”.

[24] Mr. Myers said that this did not mean anything to him as he thought it might be just a neighbour out with his dog. He did not consider stopping at all as he wanted to get to the bottom of what had happened.

[25] He said that he scanned to the side of the man as he was facing him, and made out the silhouette of a dog about 15 or 20 feet away on the knoll and also facing him. He could not tell if the dog was on a leash and he paid no attention to the dog as he approached the man. He said that the dog did not move as he approached the man.

[26] Mr. Myers said that at about a distance which he estimated to be 12 metres or approximately 39 feet he saw that the man was about five foot ten and perhaps 175 pounds and he started to relax as he recognized that the man was smaller than him and he was confident that because of his bigger size there would be no physical confrontation.

[27] When Mr. Myers was about half the distance again, or what he thought was 12 to 15 feet away, the man said again “I’m working my dog.”

[28] Mr. Myers said he was not in a rage at the time but he was excited and upset and concerned. He said his hands were at his side and he did not believe they were in a fist, but he could not say for sure.

[29] He was constantly approaching the man from about 24 metres and he said it took about 10 seconds for him to reach the man. He confirmed this distance and time by walking it again during the course of the trial.

[30] Mr. Myers said that he approached the man to within a distance of 12 to 18 inches and he still did not realize it was a policeman. His evidence was that he respected policemen and would never have interrupted their work if he had known it was a policeman at work.

[31] In cross-examination Mr. Myers said that he did not believe he had intruded on this man’s personal space and he thought it was an appropriate distance away from him to communicate.

[32] It was his evidence that the man did not move and he got to about 12 inches from him when he suddenly found himself on his back on the ground and the man on top of him punching him in the face. He still did not recognize that the man was a police officer because the man had no identifying markings on his body and did not identify himself as a police officer.

[33] Almost immediately the man’s dog attacked him on his legs and then on his right arm.

[34] He was fairly certain that he was taken down and the man landed on him before the dog bit him.

[35] The dog was bouncing around his face and so Mr. Myers rolled onto his stomach and pulled his arms in to cover up. He said that the man was kicking him in the left side while he was down on the ground.

[36] He yelled at the man “Please get your dog off me” and he heard the command to “Put your arm out.” He did and the dog bit it and he drew his arm back in. The command was given again and he put his arm out and it was bitten again and he drew it back in again.

[37] Finally, the man grabbed an arm and put handcuffs on the arm and put it behind his back and he allowed the man to grab his other arm and cuff it behind his back.

[38] Mr. Myers said he initially thought he had interrupted a drug deal but he realized it must be a police officer when he was handcuffed.

[39] He said that the police officer stood him up with his hands behind his back and then punched him two more times in the face on his forehead and the bridge of his nose, and continued to allow the dog to bite him three more times on the arm before he got control of his other arm to cuff it.

[40] He was then pushed back to ground.

[41] Mr. Myers said that the police officer was wearing a military style sweater with no jacket and talked into a microphone on his shoulder clip, calling for assistance. He had no identifying markings on his front.

[42] He said that it was not raining that night and he was sure that the police officer did not have a jacket on at the time.

[43] Almost instantly a patrol car appeared and he was placed in the patrol car in handcuffs and then taken to the hospital by a Constable Girard.

[44] Mr. Myers said that the right sleeve of his jacket was ripped and he referred to photograph 17 at Exhibit 1, which shows what appears to me to be a ripped left sleeve.

[45] On the way to the hospital Mr. Myers was told by Constable Girard that he would be charged with assaulting a police officer. He was treated in the emergency department of the Surrey Memorial Hospital and then driven home by Constable Girard and released when he signed a promise to appear.

[46] Mr. Myers was charged with assaulting a police officer and eventually pled guilty to obstruction of justice. He said he pled guilty on the advice of his lawyer, and because he had no money and he was assured he would receive a conditional discharge to avoid any criminal record, which was the result.

[47] A number of photographs of Mr. Myers’ injuries were put into evidence at Tab 1, Exhibit 1, and they include one of a bruise to his forehead and to the bridge of his nose that he said took about four to eight weeks to clear up.

[48] The photographs also show numerous significant dog bite wounds to his right arm and some on his left arm.

[49] Mr. Myers did not sleep that night and the next day went to his family doctor, Dr. Wong, where some of the bites were stitched up.

[50] Mr. Myers said there was no muscle or nerve damage to his arms but they were sore and he had problems initially sleeping at night because of the pain.

[51] He was referred for physiotherapy and took some physiotherapy sessions and then continued exercising at home to strengthen his right arm and his right hand.

[52] He said that the wounds on his arms healed and faded over time but his right hand took longer to heal.

[53] All of the scars faded completely except for one horizontal scar to the inside of his right forearm that remains. The other scars took four to eight weeks to heal and fade.

[54] Mr. Myers’ biggest injury was muscle wasting to the thenar area of the right thumb, in the palm next to the thumb.

[55] Mr. Myers was referred to a plastic surgeon, Dr. Rai, whose reports of January 27, 1998 and April 14, 1998 are in evidence as part of the clinical records of Dr. Wong.

[56] In his report of January 27, 1998, Dr. Rai said he observed multiple lacerations to Mr. Myers’ right arm but determined that the flexor tendons were intact and the tendons controlling the fifth finger on his right hand were also functioning. Apparently it was that finger that was of concern on that visit.

[57] In his report of April 14, 1998, Dr. Rai said he observed that Mr. Myers had developed some atrophy on the abductor pollicus brevis tendon muscle over the radial aspect of the right thumb. He observed no numbness in the right hand but he did observe atrophy and weakness in the thumb in this thenar area.

[58] Dr. Rai said that Mr. Myers might have an underlying median nerve problem but testing demonstrated the median nerve was fairly normal. Dr. Rai allowed for the possibility that Mr. Myers might have an isolated injury toward the abductor pollicus brevis which might be fairly difficult to detect within the component of the nerve and hence microsurgical intervention might be of some concern. He elected to get another opinion from Dr. Legge, another plastic surgeon, to see if there was any further treatment management he could offer.

[59] Mr. Myers said that he went to Dr. Legge but Dr. Legge could not pinpoint the problem and he took no further treatment.

[60] At trial Mr. Myers said that it is still very sensitive at the lowest joint of his right thumb.

[61] Mr. Myers returned to work at Wesbridge Steel in September, 1998, and while it was difficult to work at first because his hand was still a problem he remained at work until the year 2000 when he left to try his hand in the computer industry. When that did not work out he returned to commercial diving which he does at the present time.

[62] Mr. Myers said that his right hand is still a problem because there is some numbness but he has regained most of the strength over time.

[63] He said he does not ski or mountain bike as he did before the injury but he still scuba dives and hikes. He said he does not mountain bike anymore because his hand gets numb when he goes over jumps. He said he has done a little skiing since but it does not work as it used to, without any further explanation as to why.

[64] His claim of loss of income is for the period of January, 1998 to September, 1998, which he calculated as the difference between what he made in 1997 and 1999 of approximately $46,000 each year, and 1998 when he only made $17,249. The difference claimed is in an amount of $28,339.

[65] Mr. Myers’ physiotherapist, Ms Erskine, gave evidence. She did not recall Mr. Myers at all but has notes of attending him that are in evidence. The first attendance was on February 9, 1998. She recorded in her notes that there were bites on both arms and both legs and on his back but the worst bites were on his right forearm.

[66] On her examination all bites were healing and there were three areas of thick scabs, two on the extensor aspect and one on the flexor aspect of his right forearm.

[67] Mr. Myers’ grip strength was equal but both grips were weaker than expected. Sensation in the right arm was reduced but progressively improving.

[68] Ms Erskine continued to treat Mr. Myers and he continued to improve through seven sessions that ended on March 19, 1998.

[69] Ms Erskine identified problems of wasting of the thenar eminence of the right thumb but on March 19, 1998 was treating the left arm.

[70] Mr. Myers did not return for physiotherapy after March 19, 1998.

[71] Dr. Wong, Mr. Myers’ doctor in 1998, gave evidence. He also did not recall Mr. Myers but his clinical records are in evidence.

[72] He treated the plaintiff for his dog bite injuries from January 22, 1998 to February 10, 1998, four visits, and he referred Mr. Myers to Dr. Rai.

[73] Dr. Yuen, the partner of Dr. Wong, gave evidence and his records span the time from March 4, 1998 to January 22, 1999, a total of five visits.

[74] He treated the area of the right thumb where he found weakness and wasting but he did not note any numbness in the right hand.

[75] He also did not hear any complaints of anxiety or psychological problems.

[76] Mr. Myers’ father, Les Myers, gave evidence. He described the plaintiff as a very caring person and prior to 1998 as being an extremely positive person who was very active in scuba diving, skiing and mountain biking.

[77] It was his evidence that his son always had a positive attitude towards the police. After the incident, however, his son’s attitude towards the police changed and he became more depressed and not quite as happy. According to him his son could not ski, scuba dive or bike anymore.

[78] He said that if his son knew for sure that someone hurt his dogs, he was sure that his son would be angry but he did not know what his son would do.

[79] David Whittaker, a friend of the plaintiff, also gave evidence.

[80] Mr. Whittaker used to ski, scuba dive, mountain bike and weight lift with the plaintiff.

[81] He described the plaintiff as formerly an outgoing, happy person who was always willing to give a helping hand. He said the plaintiff was respectful of police officers.

[82] Since the accident he said that the plaintiff’s weight lifting decreased a bit because of his hand injury and he last worked out with the plaintiff over a year ago.

[83] He said that the plaintiff still tries to help people out but he can tell that the plaintiff is a little bit unhappy but tries not to show it to his friends. He said that he could see the plaintiff’s depression after the incident and even now he is not back to his former self.

[84] A neighbour, Ms Grohmann, also gave evidence. She is an elementary school teacher in Surrey and she lived across the street from Mr. Myers on 128B Street, next to the northwest entrance to the park where Mr. Myers entered with his dogs.

[85] On January 21, 1998 in the evening, at sometime she estimated between 9:00 and 10:00 p.m., she was in her kitchen which faces her back yard towards the park. She opened the patio door in her kitchen to the back yard and heard a commotion and heard someone saying “Get your dog off me”, in a voice that sounded scared.

[86] Later, she went out to the back fence and saw a person semi-sitting at the bottom of the knoll and other people standing around.

[87] She could see this from the streetlight on 73A Avenue at the south end of the park that illuminated a portion of the park. Otherwise the rest of the park was very dark.

[88] She saw a man walking towards her on the pathway in the park right behind the fence, with a dog. This person was all in black or dark blue and according to her was wearing a baseball cap but had no identifying marks.

[89] She also said that the dog did not have any vest on it nor other markings and she could see this with her patio light. She said that she saw the man and the dog from the front and left side and back about 10 to 12 feet away.

[90] Corporal Graham is a member of the RCMP. He has been training dogs since 1986 and has been an RCMP dog handler since 1995.

[91] His first dog was Ringo, which was the dog with him at the time of the incident in 1998, and is still with him today.

[92] Ringo is a Belgian Malinois, weighing approximately 68 pounds and described by Corporal Graham as athletic.

[93] In 1998 there were several Malinois working for the RCMP in Surrey, but since then the RCMP has stopped using this breed as it is at risk for heat exhaustion and associated medical problems. It is an intense dog with a high work ethic but has a tendency to track too fast.

[94] However, Corporal Graham said that it is not a hyperactive or aggressive dog but an intelligent dog.

[95] He explained that police dogs are trained to protect their handler without any command at all. They will react to aggressive behaviour towards the handler, but the handler can stop the dog from biting with the command “Out”.

[96] With respect to suspects that the dog is tracking, the attack command is “Hag him”, while the command to stop biting is “Out”. If the handler wants to stop the dog before it bites a suspect the handler shouts “Ringo (in this case) No, Down”.

[97] An answer of Corporal Graham to an interrogatory was put into evidence where he said that when working with his police service dog on duty as a dog handler his dog is under his control at all times and responds to his commands with the exception of two types of situations, one being when he is in danger or appears to be in danger and the police service dog is trained to protect him and will do so without command, and the second situation is if the police dog itself is in danger or attacked, it will protect itself without a command.

[98] The three principle rules under the RCMP operational policy referred as its Incident Management/Intervention Model (IM/IM) are:

1. Police service dogs must always be under the control of their handlers.

2. All RCMP police service dog handlers are accountable for the actions of their police service dogs.

3. Prior to the deployment of a police service dog as a method of intervention, the dog handler must ensure that all other reasonable intervention options have been considered in accordance with the IM/IM.

[99] Sergeant Avery, the Police Dog Service Program Manager for British Columbia and the Yukon, said in his evidence, to which I will refer to later, that the third rule may not have been part of the model in 1998, but Corporal Graham in his evidence appeared to have accepted that as one of the requirements of him in 1998.

[100] On the evening of January 21, 1998, Corporal Graham said he was on duty with his dog Ringo in the park tracking a breaking and entering suspect from a nearby house who was suspected of going that way.

[101] He entered the park from the northwest path off 128B Street next to the Grohmann house.

[102] Corporal Graham said that it was night time but there was plenty of light in the park from surrounding streetlights.

[103] As he went through the park heading south toward 73A Avenue, on the south side of the knoll his dog Ringo appeared to lose the track and they retreated back to the knoll to try to pick up the track again.

[104] Ringo was on a 20-foot line from a harness and was trying to find the track again around the knoll. Corporal Graham said it was raining out and he was wearing an RCMP baseball hat with a shoulder flash sewn on the front, a long blue gortex rain jacket that extended below his waist with zip holes for access to his gun and radio, and with flashes or badges on each shoulder saying RCMP, and the word “Police” on the back of his jacket several inches high together with the word “RCMP”, as shown in Exhibit 3.

[105] The flashes or badges are reflective but not if viewed in the dark.

[106] Corporal Graham said that the jacket shown in Exhibit 3 is the same as the jacket that he was wearing that night.

[107] Ringo, the dog, wore a tracking harness made out of nylon webbing with a one-half moon shaped white reflective patch on the front and white reflective patches above reflective lettering on the sides of the harness that said “Police”. In addition, on the dog’s back was another reflective tab. This is also shown in Exhibit 3.

[108] Corporal Graham said that as he was tracking with his dog two other dogs ran towards him in the park and they both ran quickly towards his dog Ringo. It looked to him like they were going to initiate contact with his dog.

[109] He disagreed that the dogs appeared only playful as he considered that they were aggressive looking and one of the dogs was twice the size of Ringo.

[110] He explained that police dogs, including Ringo, are trained to ignore other animals and other distractions when working and so Ringo was very vulnerable and Corporal Graham was concerned for a dog fight.

[111] He pulled Ringo to his left side as the bigger dog approached and he kicked the bigger dog in the flank and hit it with the end of his dog leash.

[112] In cross-examination by his own counsel, because Corporal Graham was called by the plaintiff as an adverse witness, Corporal Graham said that he brought Ringo back and put him on his right side as the two dogs approached from the left.

[113] When he kicked the bigger dog it turned yelping and ran back the way it had come, followed by the smaller dog.

[114] Corporal Graham said that he began to track again with Ringo and then he heard a lot of obscenities, yelling and screaming coming from the walkway.

[115] He said that a large person came running up the path at full speed and yelled “You f---er, you hurt my dog”. He said that this man was about 40 metres or 131 feet away at that point and running full speed at him with arms and legs going quickly. The man was clearly angry.

[116] Corporal Graham knew that this must be the owner of the dogs but it was only about 10 seconds later that this man, Mr. Myers, was upon him.

[117] When Corporal Graham saw the man running towards him he yelled “Stop, Police. I am working my dog.” He disagreed that he only said “I am working my dog”. He pulled Ringo back in front of him to a distance of about six to eight feet and continued to rein him in by coiling his harness.

[118] He yelled again “Stop, Police, Police dog”. After he yelled the second time contact with Mr. Myers was almost immediate.

[119] Corporal Graham said that Mr. Myers was drawing back his arms as he approached but until the last second he thought Mr. Myers would stop in response to his warning.

[120] He said he had very little time to think and he had no time to pull the flashlight out of his jacket or to back up.

[121] He explained that he never carried the flashlight in his hand because it would indicate to a suspect where he was and would also interfere with his night vision.

[122] He also did not consider turning his back to Mr. Myers to show the police sign on his back because that was the last thing he would do if he was concerned about an attack.

[123] He also had no time to call for help.

[124] The dog Ringo was positioned in front of him about six or eight feet. Corporal Graham said that Mr. Myers ran at him full speed and when he got to Ringo, Ringo defended himself and Corporal Graham by attacking Mr. Myers on instinct.

[125] Corporal Graham said that Ringo jumped up and grabbed Mr. Myers’ left arm as Mr. Myers practically ran over Ringo and then Ringo disappeared under Mr. Myers’ legs and immediately Mr. Myers was upon him.

[126] Corporal Graham said that he placed his hands up to try to sidestep Mr. Myers who was stumbling and he pushed Mr. Myers backwards by his shoulders and drove him to the ground and ended up on top of him.

[127] He said that Mr. Myers initially resisted on the ground but he quickly relented. Corporal Graham said that Mr. Myers was at least 50 pounds heavier than him and several inches taller and he said “Police, you are under arrest” and directed Mr. Myers to put his hands behind his back.

[128] He denied that he initiated the attack on Mr. Myers.

[129] He said that when Mr. Myers stopped resisting he commanded Ringo, “Out”, and Ringo stopped biting. He said that there was a time period of about three or four seconds before Mr. Myers stopped struggling.

[130] Corporal Graham’s preliminary hearing evidence was put to him where he said that he shoved Mr. Myers down several times as he tried to get up, all the while yelling, “Police, you are under arrest”, and Ringo continued to bite as he was still animated.

[131] While he agreed with this evidence he disagreed that it was only after he put Mr. Myers down to the ground that Ringo got involved.

[132] He denied that Mr. Myers was writhing on the ground and trying to cover his face and he denied telling Mr. Myers to put out his arms to cuff him and then allowing Ringo to bite him.

[133] He also denied that he ever punched Mr. Myers.

[134] He did not recall Mr. Myers saying, “Get your dog off me”, but he may have.

[135] Corporal Graham explained that there is no command to direct an RCMP dog to bark. He does not want his position ever to be known to a suspect when a suspect is being tracked.

[136] He did say that if a suspect stays outside the range of the tracking line and Ringo cannot get at him, Ringo will bark on his own as he gets agitated.

[137] Here, Ringo did not bark, as Corporal Graham said there was no time for him to get frustrated as Mr. Myers never did stop outside his range but rushed right in.

[138] It was Corporal Graham’s view that Ringo was always under his full control as long as Mr. Myers stayed outside the tracking line and he could have stopped Ringo from biting if he wanted to but Ringo reacted properly to protect himself and Corporal Graham.

[139] Corporal Graham called for backup and Corporal Girard attended and took Mr. Myers into custody.

[140] Corporal Girard gave evidence. He has been with the RCMP since 1985 and in 1998 was a constable. He was on duty in Surrey on January 21, 1998 from 6:00 p.m. to 6:00 a.m. January 22, 1998.

[141] At approximately 8:00 p.m. there was a report of a break and enter in the area and he was patrolling the area in his patrol car.

[142] He said there was intermittent rain or drizzle at the time and he was going northeast on 73A Avenue by the park when he saw the flash of reflector tape low to the ground, that he suspected was from a dog.

[143] He said it was very dark in the park at the time but when he got about 50 or 60 feet beyond the park he heard Corporal Graham calling for assistance and so he stopped and reversed his vehicle and ran into the park.

[144] He found Mr. Myers sitting on the ground in handcuffs and Corporal Graham five or six feet away and winding in the leash on his dog.

[145] Corporal Graham was wearing a Gortex jacket with shoulder flashes and the “Police” reflector tape on the back.

[146] Ringo, the dog, was wearing a vest and the word “Police” on each side and Ringo was about four to six feet away from the man on the ground and was quiet and under the control of Corporal Graham.

[147] Corporal Girard arrested Mr. Myers and put him in his police car and took him to hospital. On the way to the hospital Mr. Myers told him that he had run up and stopped one inch in front of Corporal Graham and that was when he was jumped by the dog and the next thing he knew he was handcuffed. He said that he first recognized that it was a police officer when he saw the word “Police” on Corporal Graham’s back.

[148] Mr. Peters gave evidence. He runs the Academy of Dog Training in Abbotsford and was qualified on behalf of the plaintiff as an expert in dog training for security purposes.

[149] He trains security dogs for customers. He has no knowledge of the training given by the RCMP of their dogs.

[150] His report of June 30, 2004 was filed as Tab 6 of Exhibit 1.

[151] Mr. Peters teaches security dogs to bark so that the aggressor will know that the dog is aggressive. His opinion was that Ringo should have been trained to bark to warn off Mr. Myers.

[152] Sergeant Avery, the RCMP Police Dog Service Program Manager for British Columbia and the Yukon, gave evidence for the defence. His report of July 13, 2004 was filed as Exhibit 4.

[153] He provided the opinion that if the incident occurred as Corporal Graham said then Corporal Graham followed all required RCMP procedures as did his dog Ringo.

[154] He also confirmed that the RCMP does not train its dogs to bark and if the dog handler is in a fight the dog will keep biting for the duration of the fight.

Discussion

[155] There were a number of discrepancies in the evidence of the witnesses on the issue of liability.

[156] Corporal Graham said that there was plenty of light in the park at the relevant time while Mr. Myers said it was pitch black. The witness Ms Grohmann said that the streetlight on 73A Avenue illuminated a portion of the park up to the knoll, so that she could see a figure sitting on the knoll with other people nearby. Otherwise, she said the park was very dark. I accept her evidence in this regard as probably being the most accurate.

[157] Ms Grohmann said that she saw a man wearing black or dark blue clothing walk by her back fence with a dog, but she saw no identifying marks on the man. However she did see that he was wearing a baseball cap. Corporal Graham said he was wearing a baseball cap but had on a jacket with shoulder patches and the word “Police” written on his back. Mr. Myers said that Corporal Graham had no identifying marks on the front of his clothing and was only wearing a sweater and not a jacket. Constable Girard said that Corporal Graham was wearing a police jacket as shown in Exhibit 3 and Mr. Myers had told him that he had identified Corporal Graham as being a police officer when he saw the word “Police” on the back of his jacket.

[158] I accept Constable Girard’s evidence, and therefore Corporal Graham’s evidence, that he was wearing a police jacket with the markings on it. I do not know who Ms Grohmann saw beyond her fence but if it was Corporal Graham she was mistaken that he had no markings on his clothing. I also reject as well Mr. Myers’ evidence that there were no markings.

[159] In rejecting Mr. Myers’ evidence however, I do not find fault with him for not identifying Corporal Graham as a police officer from the front by sight, before their confrontation, because I accept that in facing Corporal Graham for the limited time involved before the altercation it is understandable that Mr. Myers would not have easily identified that it was a police officer since there were no markings on Corporal Graham’s front, except for the badge on the baseball cap.

[160] Additionally, I find that the dog Ringo had reflective patches on his harness, but as Mr. Myers was not paying any attention to him, I can understand how Mr. Myers would miss these markings as well.

[161] Mr. Myers said that the man he was approaching stated twice before their altercation, words to the effect “Stop, I am working my dog” while Corporal Graham said that he first said “Stop, Police, I am working my dog” and the second time said “Stop, Police, Police dog”, just before the altercation.

[162] I find that Mr. Myers was excited and agitated at the time and he was angered by the fact that his dog had been apparently hurt by this person and he was determined to confront this person over that. I accept that Corporal Graham did indicate that he was a policeman but I believe that Mr. Myers was not listening as he was in a rage. He was only interested in getting to Corporal Graham as fast as possible.

[163] I do not know how fast Mr. Myers travelled towards Corporal Graham and I do not place much stock in either of their estimates of time or distance. I do accept however that events occurred very quickly and there was not any time for Corporal Graham to do anything other than what he said he did before Mr. Myers was on him.

[164] In my view it was telling evidence from Mr. Myers when he said that he came to within 12 inches to 18 inches of Corporal Graham with only the intention of verbally communicating with him. Constable Girard said that Mr. Myers told him he ran up and stopped one inch in front of Corporal Graham. Whether it was 12 inches or one inch, in my view to approach that close to someone is clearly threatening and confrontational. Corporal Graham was justified in defending himself on the expectation that he was going to be struck. He was justified and acted reasonably in taking Mr. Myers to the ground as Mr. Myers was interfering with the performance of his duties.

[165] The dog Ringo attacked Mr. Myers either before or at the moment of impact between him and Corporal Graham. The dog was trained to protect his handler and his handler was clearly threatened. Again, I cannot conclude whether Mr. Myers ran over Ringo before getting to Corporal Graham or the dog came from the side but either way, in my view, the dog was justified in employing its training to protect Corporal Graham, and Corporal Graham was justified in using Ringo’s training to assist him.

[166] I reject the opinion of Mr. Peters that the dog Ringo should have been trained to bark a warning to Mr. Myers. It makes sense to me that a security dog would be trained to bark but it also makes sense to me that a police dog is not so trained.

[167] Sergeant Avery’s opinion was of little assistance to me as well because the real issue of liability was whose version of events to accept and not whether Corporal Graham, on his evidence, acted properly. If Mr. Myers’ version was accepted then obviously Corporal Graham could not have acted properly.

[168] Corporal Graham said that his dog leapt up and attacked Mr. Myers’ left arm initially while Mr. Myers said it was his right arm. The photograph of the torn jacket at Tab 17 of Exhibit 1 indicates a torn left arm which is consistent with Corporal Graham’s evidence in this regard.

[169] Mr. Myers said that Corporal Graham allowed his dog to continue to bite him while he was on the ground and not resisting. Corporal Graham said that Mr. Myers stopped resisting very quickly. Corporal Graham’s evidence on the preliminary hearing indicates that Mr. Myers continued to resist for some period of time. I conclude that the dog bites that Mr. Myers received were administered while Mr. Myers was still resisting.

[170] Mr. Myers said that after he was stood up, Corporal Graham punched him twice in the face while he was handcuffed and not resisting, and Corporal Graham allowed his dog to continue to bite.

[171] On Mr. Myers’ evidence Corporal Graham was a rogue police officer who enjoyed inflecting pain and injury to him without reason, just for the fun of it. He alleged that Corporal Graham allowed the dog to bite him when he was on the ground and not resisting, and also when he was standing up and not resisting. Corporal Graham responded to this allegation in his evidence by asking why he would act like that when he was on duty at the time only interested in tracking a breaking and entering suspect.

[172] In this regard I note again that no personal assault is alleged against Corporal Graham in the statement of claim and on balance I reject Mr. Myers’ evidence of how he came to be bruised on his face. I do accept that he did receive blows to his face in the altercation with Corporal Graham but I conclude that this occurred during his resistance and not after he had given up.

[173] I note as well that Mr. Myers pled guilty to obstructing a police officer in the execution of his duties. While he said that it was too expensive to defend and it was on the advice of his lawyer and he had bargained for a conditional discharge, his guilty plea is not at all consistent with his evidence given at the trial before me.

[174] I also do not consider that the doctrine of scienter has any application to the circumstances of this claim. Of course the dog had manifested a propensity to cause the type of harm occasioned and the owner knew of it, because the dog was trained by the owner to do just that when the circumstances were required as part of his job. The use of a dog by police officers to protect themselves must be sanctioned by the Criminal Code as long as it is only the employment by the police of as much force as is necessary to do their job, which I find to be the situation here.

Disposition

[175] I dismiss the action against all defendants. Regardless of the disposition of the claim against Corporal Graham and the Attorney General for British Columbia, the action against Her Majesty the Queen in Right of the Province of British Columbia is dismissed by virtue of s. 11 of the Police Act that restricts vicarious liability to the minister responsible for the conduct of provincial constables, which includes members of the RCMP.

[176] In the circumstances I will not proceed to assess damages.

[177] The defendants will have one set of costs throughout against the plaintiff at Scale 3.

“J. Truscott, J.”
The Honourable Mr. Justice J. Truscott

Citation:	*Myers v. Graham et al,*
	2005 BCSC 5