Case could be made for lawsuit against city police: lawyer

A young man repeatedly kneed and elbowed by Winnipeg police officers should consider a lawsuit against police, said a Toronto lawyer who specializes in similar cases in Ontario.

Last week, video surveillance footage was released showing about six officers arresting Cody Bousquet, 18, in February 2009.

He had driven at two officers in a stolen truck, rammed a police cruiser and smashed into a light standard before stopping at a Notre Dame Avenue auto parts store.

Judge Ray Wyant said at a sentencing hearing that surveillance footage showed officers used force that was "out of measure" during Bousquet's arrest.

His lawyer, Dan Manning, read in court police notes of the incident that claimed Bousquet "refused to obey" officer commands for him to surrender and he "continually swung at police." The officer who wrote those notes, Const. Ryan Law, already faces an assault charge related to the alleged beating of Henry Lavallee at the Public Safety Building in November 2008.

Bousquet's family is reportedly seeking legal advice on filing a lawsuit against the police.

"On the face of it, it appears that this is a classic case of excessive force used by officers," said Peter Biro, a partner with the Toronto firm WeirFoulds LLP, who has represented clients in half a dozen civil actions against Ontario police.

"If I'm the family and if I am that individual, I would be very, very seriously looking at a civil action for damages for the harm that I suffered as a result of what appears to be the use of excessive force... It's a breach of their duties of care to me."

Some use-of-force experts who reviewed the Bousquet tape said police will use force if someone's hands are not visible, because the person may be concealing a weapon.

Following the release of the tape, Winnipeg police asked the RCMP to investigate the incident. Mounties will consult with an Ontario Crown attorney about the case.

Biro said he was "dismayed" by the video.

He said the notes submitted by Const. Law after the arrest do not appear to match the contents of the surveillance footage. He said Law's notes say Bousquet refused to obey, but the tape does not show that.

"I didn't see any evidence of him flailing around or refusing to give up his hands," the lawyer said. "I didn't see any evidence of him continually swinging at police. None of that."

gabrielle.giroday@freepress.mb.ca

What officer's notes say

What did Const. Law's notes say about the arrest?

"(Officer 1) approached the accused with his Taser drawn, while (Officer 2) approached with his firearm drawn.

Both issued clear verbal commands instructing the accused to get on the ground, but Bousquet refused to obey. (Officer 2) then pulled the accused to the ground, at which point he holstered his firearm and (I) aided him and (Officer 1) in handcuffing Bousquet.

Bousquet immediately began to resist officers.

He began to flail around and refused to give up his hands, despite repeated commands to do so by all officers present. Bousquet appeared to be intoxicated or high on some form of drug, as he struggled considerably with officers who were unable to gain control of his arms, which he continually swung at police and tried to shove into his waistband.

It should be noted that Bousquet was bleeding significantly from his face at this point. (Officer 2) and (Officer 1) alternatively attempted to control Bousquet's legs, while aiding (me) in gaining control of his arms. As the struggle progressed, Bousquet became noticeably more aggressive and began fighting with officers much more fiercely.

Control could not be gained and the writer delivered one to two knee strikes and five to six elbows to the shoulder, arms and upper back area of the accused in an attempt to lessen his resistance and gain compliance. Meanwhile, (Officer 4) delivered four to five knee strikes to the left torso of the accused. None of these strikes by either officers had any effect on Bousquet.

(Officer 1) then deployed two full deployments of the Taser to the accused's right thigh/buttock area in the form of dry stuns without a cartridge, which allowed officers to finally gain control of his arms and place him in handcuffs."

Republished from the Winnipeg Free Press print edition February 3, 2010 B1