The Court of Appeal has allowed an appeal of a police offer found 20% at fault for injury and death caused by a suicidal individual who drove his vehicle into oncoming traffic killing himself and the other driver (Bergen v. Guliker, 2015 BCCA 283). This case establishes that there is currently no recognized duty of care owned to the general public by the police before a police pursuit commences.
Two RCMP Officers stationed at Chilliwack approached the mentally unstable and suicidal individual with their vehicles. Earlier that day, the Chilliwack detachment had been informed through a number of 911 calls that the suspect was serious about killing himself by driving his car into traffic. After learning the suspect’s location, the officers drove slowly but when the accused saw the police vehicles, he sped off at a high rate of speed. The officers followed him and a pursuit ensued.
They chose not to activate the siren and the vehicles were travelling at speeds much higher than the speed limit of 50 kph. The pursuit ended tragically when the accused rounded the curve onto Ferry Island Road at 136 kph, crossed over the centre line and collided head-on with a vehicle with a husband, wife and two children. The husband and the accused died at the scene and passengers seriously injured. However the Court of Appeal limited the imposition of the duty of care on the police officers, “in the absence of a full Anns/Cooper analysis”, to when the pursuit began. As the Court further stated,
“However, even limiting the imposition of the duty to that point in time, I am of the view that the trial judge could not, in the circumstances of this case, identify the applicable standard of care without the benefit of expert evidence… …How to respond to a suicidal individual suffering from a severe mental health episode, who must be apprehended…is not generally a matter of common knowledge and experience. While the trial judge had the benefit of the statutory and policy provisions that were interpreted and applied in Radke and Burbank to determine the standard of care, those provisions did not provide sufficient guidance on how the specific issue in this complex and evolving situation should be addressed. This was the case in Roy and D.H., where the general policies and professional standards were found not to be determinative of the standard of care and whether it was met in the specific circumstances. In this case, as in Camaso, the court in my respectful view required expert evidence before it could establish the content of the standard of care required in this dynamic and complicated case.
It followed therefore that the finding of a breach of the standard of care before the pursuit commenced cannot be sustained. “While there is a recognized duty of care when a police pursuit begins, the content of that standard of care, in the circumstances of this case, required expert evidence to determine what a reasonable police officer in similar circumstances should have done.”
The Court of Appeal allowed the appeal, set aside the finding of fault against the police officers, and ordered a new trial.