A Nanaimo man who was charged with assault with a weapon and breaking and entering has had those charges dropped and is now suing one of the RCMP officers who arrested him as well as the federal and provincial governments.
The charges, which were dropped by a stay of proceedings directed by the Crown in provincial court in Nanaimo on Dec. 14, stemmed from in incident in February 2019 when David Alan Banford and a woman were allegedly found inside a cabin at Deadwood Creek Campsite at Nanaimo Lakes by the cabin owners.
Banford had been accused of pepper-spraying the cabin owners and fleeing, which triggered a two-hour long track by constables Tanner Fowler and Joshua Grafton with police service dog Jager through deep snow and steep terrain.
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Banford’s suit, filed with the Supreme Court of B.C. in September, claims he suffered multiple injuries during his arrest that were allegedly inflicted upon him by Grafton and he’s seeking punitive and exemplary damages.
The suit alleges the officer physically assaulted Banford during the arrest after he ordered him to get face down on the ground and then ordered Jager to “attack” Banford and as the dog was biting him, Grafton elbowed, punched and kicked him in the stomach.
“Grafton punched the plaintiff in his head and face several times, thus causing significant damages to the plaintiff’s face,” the suit alleged.
The suit goes on to claim Banford suffered injuries “to his face, upper thigh, ribs, bite marks to his thigh, a broken nose, facial bone fracture requiring surgery and bleeding to his thigh and face,” and that Grafton provided misleading details of the events surrounding the arrest to the RCMP to justify the “brutality that he inflicted” on Banford.
The suit also alleges Grafton did not ask any questions of Banford other than to confirm his name, that Banford was unaware of the reasons for his arrest and he was allegedly not provided with his Charter rights following his detention and arrest.
The responses to the suit by Grafton and the Attorney General of Canada and the B.C. Minister for Public Safety and Solicitor General deny the allegations.
The Crown defendants deny that RCMP members “used any unnecessary, unreasonable or excessive force” and that if the plaintiff sustained any injuries, losses or damages, which is denied, those “could have been prevented or the severity thereof reduced if the plaintiff had not been negligent in respect of his own actions and safety.”
Grafton’s response notes that he “used no more force than was reasonably necessary in the circumstances.” His reponse denies any negligent actions, and adds that even if there was a breach of the RCMP Act, which he denies, “a breach of the RCMP Act does not give rise to a claim in negligence” and he “is not personally liable for any action or omission in the performance of his duties.”
None of the claims have been proven in court.
The results of an investigation by the Independent Investigation Office of B.C. released in November 2019 exonerated Grafton of alleged wrongdoing.
“The degree of force used was at the upper end of the justifiable range and, in different circumstances, might well be considered excessive,” noted Ronald MacDonald, the IIO’s chief civilian director, in his report. “In these circumstances, however, it was not.”
RELATED: Use of force deemed justifiable in arrest of suspect after snowy chase in Nanaimo
Grafton remains employed with the RCMP and assigned to the Nanaimo detachment, but Nanaimo RCMP confirmed he is off duty on medical leave.
Grafton is currently facing charges of assault, assault with a weapon and obstruction of justice along with two other constables, both charged with assault causing bodily harm, stemming from the recommendations of an IIO investigation into the arrest of two suspects in Prince George in February 2016. The three officers were scheduled to make their first appearances in provincial court in Prince George in August.
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