A civil lawsuit brought against an RCMP officer also facing criminal charges in relation to a controversial arrest in Prince George will remain before the court after the B.C. Court of Appeal turned down an application to dismiss the action.
In the process, the Court of Appeal upheld a finding by a B.C. Supreme Court Justice that while it was not until nearly 4 1/2 years after the arrest that Cuyler Aubichon filed a notice of claim, he had met the two-year time limit.
Aubichon has contended he was not aware of his right to take the step until September 2019 when he learned Cst. Joshua Grafton was under a criminal investigation and, on the advice of a lawyer, he waited until charges against Grafton were approved in July 2020.
Counsel for Grafton argued that the Justice erred in her interpretation of the law by relying on the Aubichon's subjective understanding of his legal rights.
But in a decision issued February 24, the appeal was dismissed.
"Courts are cautious when dealing with applications to strike claims based on limitation defences and when the issue raised is one of novel statutory interpretation," the Court of Appeal states in a summary of the decision.
The arrest in February 2016 caused a stir when a video from a security camera on a nearby home showing the takedown was released to a media outlet.
It shows RCMP officer using a service dog to pull Aubichon out of a stolen pickup truck and onto the ground before elbowing him in the head.
Aubichon is claiming Grafton is the dog handler and that he "deliberately misused the dog to terrify and caused severe bodily harm."
He says Grafton not only encouraged the dog to bite him on the arm while removing Aubichon from the truck but allowed the dog to continue biting him while he was face down on the ground. He also claims Grafton punched and elbowed him and kicked him in the stomach and used a baton on his head while he was on the ground.
While Aubichon concedes the physical injuries he suffered during the arrest had since healed, since 2019 he has suffered serious mental health issues as a result of the incident and is seeking damages.
The Attorney General of Canada and the B.C. Minister of Public Safety and Solicitor General are also named as defendants.
Meanwhile, Grafton continues to face counts of assault, assault with a weapon, and obstruction of justice from the arrest.
A trial at the Prince George courthouse on those matters resumed this week with a voir dire, or trial within a trial, over whether to qualify a former police officer as an expert witness on use of force.
