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含羞草研究社檚 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.

含羞草研究社淚t 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,含羞草研究社� Crossin noted in his .

The constables climbed up onto both sides of the cab, peered through the windows with their flashlights and banged on the door.

含羞草研究社淭here 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,含羞草研究社� Crossin noted. 含羞草研究社淢atters 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.含羞草研究社�

Degen was taken to Surrey含羞草研究社檚 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含羞草研究社檚 cab. He claimed he suffered a 含羞草研究社渕ultitude含羞草研究社� 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.

含羞草研究社淭he plaintiff testified that he asked, through the window, what was going on. He testified that the officer kept yelling 含羞草研究社榦pen the f含羞草研究社攌ing door,含羞草研究社櫤�羞草研究社� Crossin noted. 含羞草研究社淲hen 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.含羞草研究社�

Degen testified he told the officer at his window that he was there to deliver a load, said 含羞草研究社測ou guys got the wrong guy含羞草研究社� and 含羞草研究社淚含羞草研究社檓 going back to bed.含羞草研究社� He conceded he might have told the officer or officers to 含羞草研究社渇含羞草研究社攌 off.含羞草研究社� He brought his truck back up to high idle and rolled up the window, causing the officer at the driver含羞草研究社檚 side to let go of his grip and jump or fall to the ground.

He testified the police broke the windows on the driver含羞草研究社檚 and passenger含羞草研究社檚 side and both officers tasered him through the broken windows. He testified it was painful.

含羞草研究社淭he plaintiff testified he was tasered twice,含羞草研究社� the judge noted. 含羞草研究社淭he 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.含羞草研究社�

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.

含羞草研究社淚nspector 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,含羞草研究社� Crossin noted.

One of the constables, Jonathan Perkins, had been a Mountie for about one year prior to Degen含羞草研究社檚 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.

含羞草研究社淐onstable 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含羞草研究社檚 seat of a running vehicle, telling the police to 含羞草研究社榝含羞草研究社攌 off,含羞草研究社櫤�羞草研究社� 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 含羞草研究社渁 big unknown.含羞草研究社�

Given the confined space, he explained, he didn含羞草研究社檛 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.

含羞草研究社淚 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,含羞草研究社� 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 含羞草研究社渟ignificant含羞草研究社� role in the trial.

He found the use of force to break the window to 含羞草研究社渉ave been objectively reasonable in the circumstances含羞草研究社� and assigned no liability 含羞草研究社渇or the harm resulting from the closed-fist strike.含羞草研究社� The judge also found both constables had a 含羞草研究社渟ubjective belief含羞草研究社� that using a taser was 含羞草研究社渘ecessary in the circumstances.含羞草研究社�

Crossin was not persuaded, however, that using a taser was 含羞草研究社減roportionate to the threat of a closed fist strike from the plaintiff.

含羞草研究社淚n 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.

含羞草研究社淎ccordingly, I find that the defendant is liable for harms resulting from this battery,含羞草研究社� Crossin decided.

The judge further concluded that while the weight of evidence doesn含羞草研究社檛 allow for a finding of mild traumatic brain injury Degen 含羞草研究社渆xhibits certain non-specific symptoms that can be associated with PTSD.含羞草研究社�

含羞草研究社淚n 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.含羞草研究社�

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.