Me Virginie Dufresne-Lemire, by Arsenault Dufresne Wee Avocats, is the lawyer who will represent Mamadi III Fara Camara in a possible civil action not only against the Service de police de la Ville de Montréal (SPVM), but also against the Director of Criminal and Penal Prosecutions (DPCP).
While Mr. Camara has accepted the SPVM’s apologies, his decision to continue or not has still not been made at the time of this writing.
His lawyer Me Dufresne-Lemire explains to us.
You specialize in appeals against the police, is that right?
Our firm specializes in everything that is abuse of authority, and particularly police brutality and sexual assault.
Since you are an expert in this specific area, I conclude that the decision has been made to go ahead with a lawsuit …
No! We are evaluating the options. This is what we are currently evaluating, the possibility of a lawsuit.
What could tip the scales towards yes or no?
It is obviously if we are able to have a strong case, therefore faults, damages, causal links. We identify what the faults are: this is what is most important in this file.
Do you see any faults so far?
I haven’t come to say it. We are not there yet. But indeed, there are a lot of questions that arise.
Are you evaluating a lawsuit against the SPVM or the DPCP?
All options are on the table. But it is sure that against the DPCP, it is much more difficult. There is a much higher burden given the malicious intent, so it’s not the same proof. We evaluate all that.
The limitation period is different too, I think …
For the SPVM, it is the six-month period that applies, unless there has been bodily injury, and indeed in the file, there was an arrest which was somewhat … where the force was been used. So there might be that avenue eventually.
We intend not to drag on this issue. We want to do a quick assessment.
What can you tell me about this arrest?
For the moment, we are not going into the facts.
It was at Mr. Camara’s house, the arrest, right? We were talking about his apartment in the media.
No. There is a lot of stuff leaked in the media, there is a lot of information that is false or inaccurate or not consistent with the evidence. We will restore the facts in due course if there is a prosecution.
According to your experience, in all the cases that you have seen pass, what are Mr. Camara’s chances of winning against the SPVM and against the DPCP?
I can’t say that yet. Once again, we have to see what the three basic elements are: fault, damage, causal link. If according to him there are a lot of mistakes which are strong, which are corroborated, etc., it is sure that the chances are very high.
But we haven’t gotten to saying it publicly. We have to evaluate all that with our client. We refer to the criteria. Of course, a lawsuit against the police is easier to prove than against the DPCP, but we will first do the exercise with our client.
Can you explain to me why it is more complicated against the DPCP than against the police?
It is because against the police officers, therefore the SPVM and the City of Montreal, it is simply necessary to prove the standard of fault: the standard of a reasonable police officer placed in the same circumstances. It is a simple civil fault; there is no negligence to prove or gross negligence.
What is a policeman who has all the information (obviously, we cannot take the information we know afterwards, we must replace ourselves at the time of the facts), a reasonable policeman placed in the same circumstances would have he made the same decisions? That is what we must evaluate for each step with regard to the decisions made by the police.
As for the Crown, you have to prove malicious intent, you have to prove bad faith, an intent to harm. We are really elsewhere. It is much higher as proof to be made for the fault against the DPCP.
Has it been seen often, a lawsuit against the DPCP?
It is exceedingly rare. At the office, we currently have two. They (NDRL: the DPCP) have qualified immunity which was confirmed by the Supreme Court in Nelles v. Ontario. This is where the breach of malicious intent was opened.
These are rare cases, attacking the Crown, precisely because there is relative immunity. So it is done. There are already people who have been compensated in certain cases, but indeed this is not what is most common at all because the crown has discretion and immunity, and does not have to justify its decisions. Of course, this is not the most transparent mechanism.
When was the last time a citizen was compensated?
I can give you some food for thought, but I don’t have the number of specific decisions or the dates.
It seems to me it was Henry v. British Columbia (Attorney General) in 2015 who went to the Supreme Court, but that was about disclosure. Before that, it was Proulx c. Quebec (Attorney General) in 2001 concerning the laying or not of charges. These are two cases that went to the Supreme Court. These are very interesting files; worth taking a look.
So that set a precedent, but are there any similarities with Mr. Camara’s case?
I don’t know at the moment. Of course, Proulx was accusations, and we sued for the filing of these charges, saying that there was not enough to prosecute. There may be some similarities.
Because the question is, with what the crown attorney had, was that enough to clear charges and keep them for six days? This is the main question.
But afterwards, you have to prove bad faith, so it’s not just to prove that the decision is wrong, it is to prove that the decision was taken wrongly on purpose.
The crown is ultra protected. It is the only profession of lawyer which to my knowledge is protected like that.
It means that they have no responsibility that much when a mistake is made, like the one concerning Mr. Camara …
Exact. They are really very, very protected.
Is it worth the energy of a chase?
It depends. We got involved in this battle in two cases, but these are really two cases for which we want to fight.
We do it, but we are sometimes a little crazy in the files we choose. (Laughs)
In general, you don’t do it if you don’t have a solid case and you’re not ready to fight for the principle.
Because in the Camara case, if we assess that the decision was bad, but we look at the evidence and we cannot prove bad faith, it is certain that we will not get involved in this. It is far too difficult to prove and we are not going to prosecute on purpose for the fun of prosecution. We want to have good records.
In your opinion, should this Crown immunity change?
Well yes, of course, that’s why we “challenge” her. But is that going to change, that’s another question!
We are trying to limit in which cases immunity applies, but it will probably not be in the Camara file that we will do that.
Unless reading the proof, I discover amazing things! Of course, if I have what it takes to do it, we will advise our client, but I will not embark on a lawsuit if I do not think that …
So unless there is something that emerges, the prosecution would be more against the Service de police de la Ville de Montréal …
On that side, are there any chances?
I haven’t identified all the faults, and we haven’t had time to look at all the evidence yet, so we’re not yet talking about the odds. Of course, if we decide to file a lawsuit, it is because we believe that there are chances, but we are not there yet.
On what basis would he sue?
It depends on the mistakes, but it could be an illegal arrest, excessive force, a botched investigation … I don’t know yet.
And how is he, Mr. Camara?
Well, it’s going as it can! He’s very relieved about how it happened, but he’s still quite upset about what just happened. He was charged in two seconds. It could have been worse.
When we look at the police blunders on the side of the United States …
But even here, there! I represent four families of people who were killed by the police. It happens. We have to face the truth. We’re not the same number, so obviously it’s not as bad as in the United States. But we are not that far from that reality.