Police officer’s claim for damages dismissed by judge

A former North Okanagan RCMP officer has been exonerated for his actions during a high-profile murder investigation but has lost his lawsuit for damages over the mental anguish he suffered.

A B.C. Supreme Court judge dismissed a claim for compensation by former Const. Milan Ilic, who was the first police officer on the scene of the murder of Taylor Van Diest on Oct. 31, 2011 in Armstrong.

Ilic sued the B.C. Minister of Justice and the Attorney General of Canada in 2016, stating the process he endured during a review of his conduct after the murder investigation featured numerous breaches and violations of RCMP policy and caused a serious decline in his mental health.

On Halloween night in 2011, 18-year-old Taylor Van Diest was found badly injured near the train tracks in Armstrong and she was pronounced dead in hospital the next day.

She had been dressed up as a zombie and left her home to walk to a friend’s house. She was attacked on the railway tracks, had a large gash on her head, was strangled, and was left to die in the bush.

Ilic, a police officer stationed in Falkland at the time, was the first responder on the scene, along with Taylor’s mother, Taylor’s friend, and Taylor’s boyfriend.

“The scene was horrific and chaotic,” said Madam Justice Carla Forth in her ruling. “It was a cold night and Const. Ilic took off his patrol jacket to place it on Taylor as she clung to life. No one faults Const. Ilic for this action. It is what he allegedly did seconds before taking off his patrol jacket that has led to this legal proceeding.”

Ilic said that before placing his patrol jacket on Taylor he removed some personal items and placed them in his vest. He also removed a box of blue pens from his patrol jacket and tossed them to the ground.

Van Diest’s friend provided a statement on Nov. 1, 2011, that she saw a police officer throw a bottle at the crime scene. A mickey-size Smirnoff vodka bottle was found in a bush about seven and a half metres from where Taylor was found on Nov. 2.

During the 2014 first-degree murder trial of Matthew Foerster [who was later convicted of the crime and sentenced to life in prison with no chance for parole for 17 years in 2018], then-Const. Ilic took the stand and was asked under cross-examination if he threw a bottle at the scene which he denied. He further denied drinking that night. He testified that he tossed a box of pens on the ground.

“Unfortunately, in Const. Ilic’s police occurrence report written on the early morning of Nov. 1, 2011, there was no mention of a box of pens or anything he tossed on the ground. On Nov. 11, 2011, when Const. Ilic participated in a recorded re-enactment of what he did that evening, he made no mention of the box of pens,” the judge stated.

In March of 2014, at the request of Crown counsel, two members of the major crime unit, Cpl. Scott Aschenbrenner and Sgt. Gord Geary, interviewed Ilic about the discrepancy.

On April 17, 2014, the RCMP opened a Code of Conduct investigation into Ilic’s actions. The allegations were that Ilic had provided false, misleading, or inaccurate evidence in his court testimony and in his March Interview with the major crime investigators.

Ilic claimed the Code investigation was carried out in a negligent manner and, as a result, he suffered serious mental damages including developing post-traumatic stress disorder and a major depressive illness.

On July 3, 2019, Const. Ilic received a medical discharge from the RCMP. On June 3, 2020, Michelle Ilic, his wife and also an RCMP officer, also received a medical discharge from the force. She was off duty for anxiety and PTSD, mostly arising from the Code investigation of her husband.

Justice Forth ruled Ilic’s testimony was truthful about what happened that night.

“He was not drinking on the job, he did not throw any type of bottle, and he threw the box of pens. It is my view that the box of pens was on the ground under the patrol jacket at the crime scene and the bundled jacket and box of pens were scooped up by Cst. Catton and placed in the exhibit bag. The assumptions made by various RCMP officers that the box of pens was always in Cst. Ilic’s patrol jacket and fell out while in the exhibit bag was in error. Cst. Ilic told the truth in his court testimony on March 24, 2014, and to Sgt. Geary and Cpl. Aschenbrenner, and at no time was his conduct disgraceful. He is innocent of the allegations made against him,” the judge stated.

On the former officer’s claim for damages, the judge found that Sgt. Geary and Cpl. Aschenbrenner breached their duty to the plaintiff, but she was not convinced that the breaches resulted in the injury the plaintiff claimed from the Code investigation and process.

“I have found no liability against any of the RCMP officers who were involved in the Code investigation and process. As such, there is no finding of any vicarious liability against the Attorney General,” Forth wrote. “In light of the findings made, the plaintiff’s claim is dismissed.”

Forth said she accepts that Ilic has been severely impacted by attending the crime scene and hospital, along with the Code investigation and the process associated with it.

“It is my hope that the plaintiff will now consider other types of interventions to help him regain his mental health, not only for himself and his wife, but also for his four young children,” Forth stated.

Forth also urged the defendants not to seek costs against the plaintiff.

“The plaintiff was successful in establishing the two prongs of the negligence test, being a duty of care and a breach of that duty by Sgt. Geary and Cpl. Aschenbrenner, but was not successful on the issue of causation.”

Click here to read the judgement.