An RCMP officer is seeking a $20,000 security deposit from the man who is suing him over an arrest in Prince George caught on video that suggested excessive force was used but for which a judge has since cleared the officer of criminal wrongdoing.
In an application filed November 14 in B.C. Supreme Court, counsel for Cst. Joshua Grafton argues that not only is Cuyler Aubichon's case against his client weak, but the plaintiff lacks the means to cover Grafton's costs should a judge dismiss the claim.
The matter stems from an arrest during the early morning of Feb. 18, 2016, in which Aubichon was behind the wheel of a stolen pickup truck when he was boxed in by police in an alleyway off the 2000 block of Oak Street in Prince George's Veterans Land Act neighbourhood.
A dog handler, Grafton used his dog to extract Aubichon from the vehicle. A 52-second struggle ensued in which, according to the application, Grafton used distraction strikes to get Aubichon to release his right hand from underneath him. Once Aubichon complied, the dog released his bite.
A video from a security camera on a nearby home recorded the arrest and eventually became the basis for criminal charges brought against Grafton. In August, and following a 51-day trial, Grafton was found not guilty of all counts.
However, a civil lawsuit brought by Aubichon against Grafton in July 2020 remains before the court, with the plaintiff seeking a range of damages.
While a judge must find guilt beyond reasonable doubt to convict a person criminally, civil matters are decided on a balance of probabilities. Although the threshold is lower, the plaintiff is typically liable for the defendant's legal costs should the case be dismissed.
In the application, Grafton's lawyer Ryan Hira argues Aubichon's claim "lacks merit and is highly unlikely to succeed," in part due to "serious issues" pertaining to Aubichon's credibility and the finding by the judge hearing the criminal matter that Grafton's force was "proportionate, necessary and reasonable."
On Aubichon's ability to pay, Hira contends the defendant is "impecunious."
"He is a career criminal with no assets or legitimate employment history who was only recently released from prison. Respectfully, it is unlikely that he is gainfully employed and if he is, it is unlikely that such employment is anything other than an entry level position given his criminal antecedents and lack of employment history," Hira says.
Should Aubichon's claim be dismissed, Grafton will be entitled to costs greater than $20,000 and so the application is "not a bar to Mr. Aubichon proceeding, especially given his weak claim," Hira further argues.
A hearing on the application is scheduled for November 27 in Kamloops.
