01/10/2013 07:07 EST | Updated 03/12/2013 05:12 EDT

B.C. court orders new civil trial for police shooting death of mentally ill man

VICTORIA - The B.C. Court of Appeal has ordered a new trial for a Vancouver Island police officer who was found negligent in a civil suit filed by the family of a 33-year-old mentally ill man shot dead following a confrontation.

Appeal Court Justice Richard Low said in the ruling posted online Thursday a new trial should be held for Const. Kristopher Dukeshire and the District of Saanich because the trial judge ignored important evidence.

Dukeshire shot Majencio Camaso in the parking lot of an elementary school July 11, 2004, when the father and husband, who was off his medication, charged the constable with a metal pipe.

A fire at Camaso's apartment and a police pursuit had previously taken place.

Camaso's widow and daughter sued the constable, municipality and several others. In April 2011, the B.C. Supreme Court found Dukeshire and the District of Saanich negligent, awarding damages of about $235,000.

But among the mistakes listed on multiple pages in the Appeal Court ruling was the trial judge's decision to exclude evidence presented by police experts "from almost all the analysis leading to his findings of negligence," said Low.

"The trial judge was not responsive to the case as presented in evidence and as argued by the parties.

"Together with the other evidentiary errors I have identified, this amounts to a palpable and overriding error that requires appellate intervention."

Low said the trial judge didn't adequately consider the constable's conduct during a chase before the shooting, noting the constable had a duty to apprehend Camaso under the Mental Health Act, although he was required to do so with "reasonable care."

According to Low's ruling, the incident began in Camaso's apartment on the Sunday morning of his death when he noticed a red balloon taped to the wall and told his wife it was a "high-tech watching device" and then destroyed a television, computer and light fixtures with a rolling pin.

Camaso, who had a history of mental illness, was then seen by his wife to be holding a container of gasoline and a lighter in the kitchen. Court heard he asked her to leave so she and his daughter didn't get hurt.

The police were called and were warned Camaso was off his medication, and by the time officers got there, there had been a fire in the apartment and there was a strong smell of gasoline outside the building.

Camaso fled the apartment in a car with the police in pursuit before he and Dukeshire ended up in the school parking lot.

Low's ruling states Camaso opened his vehicle's trunk, reached inside and emerged with a long, thin object.

Dukeshire drew his firearm and ordered Camaso to drop the item and get on the ground.

Low found Camaso moved to the rear of his vehicle, walked to the side of the car with both hands empty and in the air, and bent down, complying with the constable's order.

But when Dukeshire walked toward him, Camaso got up, reached into the trunk and emerged holding a "crowbar, a metal pipe or both" and ran at the officer.

Low said Dukeshire backed up quickly and then fired three shots, striking Camaso twice and the object once, causing the bullet to fragment and its pieces to hit Camaso.

Camaso was pronounced dead in hospital.

Low found no evidence was presented backing up rulings that Dukeshire should have waited for backup or co-ordinated his pursuit with other constables.

The trial judge ignored evidence when he concluded the constable drew his firearm too soon and contradicted the opinion of a police sergeant when he ruled Dukeshire failed to holster the weapon, said Low.

When the trial judge ruled Dukeshire should have fired a warning shot, he didn't consider if Dukeshire had time or how the action would have deterred Camaso, said Low.

Low also concluded the trial judge's opinion that the constable should have run away, hid behind a jungle gym or used his baton instead of the firearm seems "to have no basis in evidence."

No date has been set for a new trial, which Low says will be limited to the claims of negligence.

--by Keven Drews in Vancouver