A wrongful death lawsuit against several members of the RCMP has been tossed out after a judge ruled that the daughter of the deceased waited too long to file suit.
Grant McLeod died in police custody after an altercation with officers on Aug. 30, 2008.
His daughter, Elycia Carlick, filed a wrongful death claim against seven members of the Whitehorse RCMP and the attorney general of Canada two years later.
Under the territory’s Fatal Accidents Act, there is a limitation period of one year from the date of death to start an action.
Carlick’s lawyer, Susan Roothman, argued that the circumstance of McLeod’s death only became clear after a coroner’s inquest in September 2009, so that’s when the clock should start.
At 7 a.m. on Aug. 30, 2008, police were called to the Chilkoot Trail Inn after a man was seen staggering in the hotel lobby carrying a hypodermic needle.
Constables Jason MacDonald and Terra Taylor were first on the scene. When they arrived, they found the night clerk “shuttered” into her lobby desk and McLeod, standing near the stairs, looking “disheveled” and wearing only one shoe.
He fled up the stairs where the officers tried to arrest him under the Canadian Mental Health Act. The act allows police to take a person into custody who may be a danger to themselves or to others.
McLeod resisted arrest and demonstrated “abnormal” strength, so MacDonald and Taylor called for back up.
It took three more officers to subdue him.
Evidence presented at the coroner’s inquest found that McLeod was forced into a prone position with one RCMP officer on his back, one with a knee to his head, while a third with a knee pressed against his right shoulder.
At one point Taylor put McLeod into a neck hold.
Within minutes of being handcuffed, McLeod went into medical distress and became unresponsive. He was taken to Whitehorse General Hospital where he died a short time later.
An autopsy conducted shortly after McLeod’s death found that he had suffered “numerous minor injuries of the face, neck, and extremities,” including “a fracture of the right laryngeal horn, consistent with neck compression.”
None of the injuries, however, were life threatening.
The autopsy report concluded McLeod died of a cocaine overdose.
“The combination of the pre-existing heart disease, acute cocaine intoxication, and the stress of being subdued all likely contributed to his death,” stated the report. “However, since all of these were as a result of his cocaine intoxication, the underlying cause of death is cocaine intoxication,”
A year later a coroner’s inquest was convened to examine the circumstances of McLeod’s death.
The jury classified the death as accidental. It went on to recommend the Chilkoot Trail Inn install video surveillance cameras in all its hallways, stairwells, exits and entrances.
Carlick filed suit the following year. She accused the RCMP of using “excessive and deadly force,” and failing to provide first-aid care, in her statement of claim.
“(The RCMP) displayed mob behaviour during the arrest due to a lack of policy, procedure and training,” read the statement.
“(The RCMP) owed a duty of care to McLeod to keep him safe and protect his well-being during the arrest, but they breached that duty of care.”
Lawyers for the RCMP argued that the case should be thrown out because the limitation period to file a wrongful death claim was long past. In a ruling last week, Justice Ron Veale agreed.
“The undisputed facts are that the plaintiff’s claim was filed just short of two years after Mr. McLeod’s death on August 30, 2008,” wrote Veale, noting that Carlick’s council had received enough evidence to file a claim well within the limitation period.
“While the inquest may have revealed more evidence to support the cause of action, the wrongful death cause of action was evident, at the latest, on receipt of the coroner’s brief,” wrote Veale.
But while the judge threw out the wrongful death claim there’s still a chance that the RCMP could find itself back in court.
Veale made no ruling on a claim of misfeasance in public office – that authorities abused their power in the case.
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