Kelowna Mounties found not responsible for injuries caused by man falling asleep at wheel

A lawsuit claiming Kelowna Mounties were liable for injuries a woman suffered when her husband fell asleep at the wheel a short time after they were busted for trafficking was dismissed this week in B.C. Supreme Court.

According to Justice Nitya’s Iyer’s decision, which was published Monday, Amira Nagem said she, another friend and her husband Karey Clyne were in their car in Kelowna at around 1 a.m. May 18, 2015 when two RCMP officers investigated them under undisclosed circumstances.

During the investigation RCMP found, among other things, a number of illegal drugs in the car, along with a small scale, a collapsible baton and plastic bags, which they seized.

All three of the car’s occupants were arrested for possession for the purposes of trafficking and taken to the RCMP station, Iyer said.

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Within a few hours, Nagem and Clyne were released, Iyer wrote. The keys to the car, which they’d borrowed from another friend named Corey Leigh McKenzie, were given back to them and they decided to drive home to Burnaby.

Somewhere between Merritt and Abbotsford, Nagem fell asleep in the front passenger seat and Clyne, who was driving at 180 kilometres per hour, according to black box data pulled from the car, fell asleep at the wheel, went down into the grass meridian, flipped and crashed.

That’s when Nagem incurred her injuries. While she does lay blame at the feet of her husband and the car owner in the suit, she also claimed RCMP officers had a hand in the incident because they owed her a duty of care when releasing her from custody and they breached it.

Her husband and friend didn’t respond to the claim, but the minister of public safety and solicitor-general of British Columbia, representing the RCMP, disagreed with that argument.

Nagem and Clyne were polite and appeared sober, alert and competent when they were released and given back the keys, according to Iyer’s decision.

RCMP, however, did not run a check on their driver’s licence statuses.

“Had they done so, they would have learned that Mr. Clyne was under an indefinite driving prohibition. The police did not try to contact Mr. McKenzie, the car’s owner, to verify that he had lent it to Mr. Clyne and Ms. Nagem,” Iyer said.

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There was considerable evidence at trial about whether it was reasonably foreseeable that Nagem and Clyne would drive all the way back to Burnaby immediately after their release. This included what other options for lodging were available to them in the Kelowna area, rest stops on the highway, and the length of the drive, Iyer said.

That, however, was not particularly helpful on the question of foreseeability of unsafe driving, she said.

“There was no evidence that there is a greater likelihood of unsafe driving on long drives than on short drives. There was no evidence that people who are prohibited from driving are more likely to drive unsafely than people who are not prohibited,” Iyer wrote. “As stated in Rankin, the fact that a person has control of a motor vehicle does not give rise to a reasonably foreseeable risk of injury to themselves or others.”

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Iyer said the evidence before her does not establish that it was objectively reasonably foreseeable to the RCMP that the car would be driven unsafely, resulting in injury to Nagem.

“In light of this, I find that the plaintiff has not established a duty of care,” Iyer wrote.

The RCMP may not have had a duty of care in this case, but that doesn’t mean the police will never owe a duty of care to a person they are releasing from custody.

“It is certainly possible to imagine circumstances where a risk of harm is reasonably foreseeable and such a duty could arise,” Iyer wrote, adding that the lawsuit was dismissed.