A lawsuit filed by a man shot by a Delta police officer in a 2013 incident in Surrey has been dismissed in BC Supreme Court.
In reasons for judgment released last week, Justice Nitya Iyer found that Anthony Minchin did not prove Const. Vicken Movsessian, who was part of a B.C. gang unit at the time, breached the standard of care in the incident, which occurred in the early evening of Nov. 7 of that year.
Accordingly, it is unnecessary to consider gross negligence or the defendants’ claim of contributory negligence, Iyer ruled.
Minchin, during the course of a high-risk vehicle take down by police, was a passenger in the rear seat of a vehicle the police had been following, but he was not the person the police were after.
The intended target was Corey Foster, a person with a long criminal record who was at large on many outstanding warrants. There was no question that Movsessian shot the wrong person, but the key issue in this trial was whether he was negligent in doing so, stated Iyer.
Iyer also concluded that while Minchin’s injury was not caused by Movsessian’s negligence, it does not diminish the harm Minchin has suffered, noting whether or not anyone was negligent, there is no question that Minchin was still the innocent victim of a police error.
In court documents filed back in 2015, Minchin claimed that he was sitting quietly and in a non-threatening manner in the backseat of a car in the parking lot at the intersection of 108th Avenue and 148th Street.
Movsessian at the time had been seconded to the Combined Forces Special Enforcement Unit-BC as a uniformed member of the provincial Combined Forces Special Enforcement Unit (CFSEU).
In his statement of claim, Minchin said the officer approached the car and "suddenly and without warning drew, pointed and fired his police service handgun," striking him in the left side of his chest, causing serious injury.
Minchin, who maintained he was unarmed and acting lawfully at the time of the incident, was taken to Royal Columbian Hospital for treatment.
Police found no gun in the car, only a Ziploc baggie of marijuana.
Later that evening, an officer from the Independent Investigations Office, BC’s civilian-led police oversight agency, arrived to document the scene, taking photos and videos, some of which were tendered in evidence.
Minchin was seeking damages for personal injuries as a result of assault and battery, false arrest, false imprisonment and Charter violations.
Minchin named the Corporation of Delta as a defendant as well as the provincial and federal governments and the Attorney General of Canada.
He claimed to have suffered bruising and contusions, numbness and tingling, permanent scarring and disfigurement, permanent loss of left arm and shoulder function and nerve damage.
Alleging assault and battery, he was seeking general damages for pain and suffering, discomfort and inconvenience, permanent partial disability, loss of enjoyment of life and physical health.
Iyer in the reasons for judgment noted Movsessian subjectively believed that the person in the rear passenger seat of the car was Foster and that he was reaching for a gun when that person’s hands were no longer visible and he appeared to be arching his back and “wedging up”.
The judge accepted that Movsessian shot the person he believed was Foster because he believed Foster was about to shoot him.
Iyer noted, “The wisest course for a person faced with a police officer’s gun being pointed at them is to comply with their directions. However, it is certainly possible that an individual might panic, leading them to drop their hands. While another officer might have drawn a different inference, I find that Const. Movsessian’s inference, and his decision to shoot, are consistent with the reasonableness standard in Hill. He may have made an error in judgment, but it was not unreasonable in the circumstances.”
Iyer also noted that the plaintiff submitted that Movsessian admitted that he had his index finger on the trigger before he made the decision to shoot, contrary to police training. However, Minchin could not say where in his evidence Movsessian made that admission, and the defendants say he did not. In cross-examination, Movsessian denied having his finger on the trigger prior to the shooting.
The incident was investigated by the Independent Investigations Office, which subsequently submitted a report to Crown counsel, and Movsessian was charged with careless use of a firearm.
In December 2016, a BC Provincial Court judge acquitted Movsessian, finding that the officer had reasonable grounds to believe that his life was in danger.
In doing so, the judge accepted Movsessian’s evidence that he believed that Minchin was reaching for a weapon.
Court documents in the lawsuit stated that Delta and its two provincial defendants allege that at the time he was shot, Minchin was carrying illegal drugs for his own use and/or for the purposes of trafficking.
Minchin at the trial admitted he was carrying drugs in his crotch area and that he moved back from his window just before the shooting to avoid being blinded by the other vehicle’s lights. He also admitted that he had used crystal meth, GHB and alcohol earlier in the day.
