R. v. Walters, 2011 ABQB 677

Court of Queen ’ s Bench of Alberta Citation: R. v. Walters, 2011 ABQB 677 Date: 20111108 Docket: 090950411Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Norman Washington Walters Accused Restriction on Publication: By Court Order, information that may identify the complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Memorandum of Decision Relating to s. 7 Charter Rights of the Honourable Mr. Justice R.A. Graesser _______________________________________________________

Introduction [ 1 ] Mr. Walters was convicted of all counts in the indictment: three counts of sexual assault using a knife, one count of unlawful confinement, one count of robbery, and one count of theft under $5,000.00. [ 2 ] As noted in my decision R. v. Walters , 2011 ABQB 593 , I reserved decision on whether Mr. Walters' s. 7 Charter rights had been violated by the police at the time of his arrest. I previously concluded that any s. 7 violation might be addressed as a sentencing consideration, following R v Nasogaluak , 2010 SCC 6 . Background [ 3 ] Mr.

Walters alleges that his s. 7 rights were violated by police during their pursuit of him, and during his arrest. The evidence of Cst. Wing, Cst. Paton, Cst. Kightley, and Mr. Walters does not differ significantly until the point in the chronology when Mr. Walters was struck by the police car driven by Cst. Kightley, and in which Cst. Paton was a passenger. [ 4 ] Briefly, as a result of the sexual assault, unlawful confinement and theft from M.J. in the early morning hours of August 4, 2009, police were looking for Mr. Walters. They believed that he was in the Millwoods area. [ 5 ] Csts.

Wing and Paton were members of the EPS tactical team. At their early morning briefing on August 4, they were tasked with working with an EPS surveillance unit to find and arrest Mr. Walters. According to both Cst. Wing and Cst. Paton, they were advised at their briefing that Mr. Walters was suspected of having committed sexual assault with a knife, and was believed to have a handgun. No evidence was presented to me to verify the information about the handgun, or the basis for any belief that Mr.

Walters had a handgun in his possession, or had ever used one in the crimes he was suspected of. [ 6 ] Surveillance units were in the area around 76 th Street and 38 th Ave, near Millbourne Mall. Cst. Wing, who was originally with Cst. Paton, saw someone they believed to be Mr. Walters on 76 th Street, near 40 th Avenue. [ 7 ] Cst. Paton was driving an unmarked police vehicle, and pulled in front of Mr. Walters. Mr. Walters was suspicious of the vehicle and assumed it was the police. He immediately climbed over a 6 foot fence separating 76 th Street from the residential area behind the fence. Cst.

Wing pursued on foot, although his progress was slowed by his body armour. Cst. Paton also followed, leaving the police vehicle unattended on 76th Street. Just after Mr. Walters climbed over the fence, Cst. Wing lobbed a flash-bang device over the fence towards where he believed Mr. Walters to be. The flash-bang device exploded, but had no effect on Mr. Walters. Mr. Walters testified that he had run behind a tree when the flash-bang device was thrown at him, and he was unaffected by the flash and noise. [ 8 ] As they searched the area behind the fence for Mr.

Walters, he doubled back over the fence and crossed 76 th Street, heading west. However, a surveillance unit observed him crossing through Malcolm Tweddle park, near Malcolm Tweddle School. Via radio contact, Csts. Wing and Paton learned of the new location via police radio. Cst. Paton joined Cst. Kightley in his unmarked police vehicle, and Cst. Wing drove to Malcolm Tweddle Park in one of the surveillance vehicles. [ 9 ] The two police vehicles converged on Mr. Walters. Cst. Paton, designated as the tactical team's “non lethal” officer, threw another flash- band device at Mr. Walters. It exploded behind Mr.

Walters and had no effect on his progress. Cst. Paton then decided to employ the ARWEN, a weapon which fires rubber bullets. As Cst. Kightley got closer to Mr. Walters, Cst. Paton fired the ARWEN at Mr. Walters and struck him in the back. To his surprise, the shot did not slow Mr. Walters down. He continued to run. So Cst. Paton shot Mr. Walters again, with no effect, and then fired the rest of the clip (3 more shots) at Mr. Walters, who appeared unaffected by being struck with the rubber bullets. According to Cst. Paton, Mr. Walters was struck with each round.

[ 10 ] By this stage, the police vehicles were converging on Mr. Walters. According to Cst. Kightley, Mr. Walters quickly changed course and ran in front of his police vehicle. He was unable to stop, and struck Mr. Walters at a low speed. Mr. Walters did not fall down, turned, and continued to run. Cst. Wing then got out of the surveillance vehicle, caught up with Mr. Walters, and pulled him down. After a brief struggle, and with Cst. Paton's assistance, Mr. Walters was subdued and handcuffed. [ 11 ] According to Cst. Paton, after Mr. Walters was struck by the police car, he saw Cst. Wing tackle Mr. Walters.

He got out of the police car and rushed to help with the take down or arrest. He didn't see what happened between Mr. Walters and Cst. Wing as the police car was between him and the others, blocking his view. [ 12 ] By the time Cst. Paton got around the police car, Cst. Wing had one handcuff on Mr. Walters. Cst. Paton helped with the other handcuff, and he took over from there. [ 13 ] Cst. Wing testified that he pursued Mr. Walters across the field, and eventually pulled him down by his shirt. Mindful of the briefing indicating that Mr.

Walters had committed sexual assault with a knife and may have had a handgun, he was concerned for safety. He wanted to subdue Mr. Walters quickly and to keep his hands in sight and under control. After he pulled Mr. Walters down, he ordered him to put his hands behind his back. [ 14 ] Mr. Walters continued to resist, and Cst. Wing used “pain compliance” techniques to have Mr. Walters comply. The pain compliance he employed was “leg stuns” – kicks – to subdue Mr. Walters. He was unsure how many kicks he gave, or exactly where the kicks landed. He agreed that one of the kicks may have been to Mr. Walters' stomach.

He denied kicking Mr. Walters in the head, or that he had kicked Mr. Walters after he had been subdued and handcuffed. [ 15 ] Neither Cst. Paton nor Cst. Kightley saw any kicks or other form of force employed by Cst. Wing. Cst. Wing denied seeing Cst. Kightley's police vehicle strike, or even touch, Mr. Walters. All officers testified that no blows were administered after Mr. Walters was handcuffed. [ 16 ] Mr. Walters testified that he believed that he could have outrun Cst. Wing and escaped the police vehicles.

He was surprised by the rubber bullets, and was more surprised that he had been run down by one of the police cars. After being struck by the police car, he decided that it would be prudent to surrender, as he feared that the police might use more lethal force if he continued to try to escape. He testified that as soon as he was struck by the police car, he surrendered. He was told to lie down on the ground with his hands behind his back, and he complied.

He was handcuffed, and was then kicked in the groin and on the head a number of times, with one of his attackers saying something to the effect “so you like to rape women”. [ 17 ] According to Mr. Walters, all blows were administered after he was on the ground and handcuffed. He was unable to identify his attacker or attackers, but believed them to be the police who were involved in his arrest. [ 18 ] The issue for me to determine is whether Mr. Walters' s. 7 rights were violated in the manner of the arrest.

Analysis - The Law [ 19 ] In R v Yum , 2001 ABCA 80 , the Court of Appeal considered whether a kick to subdue a suspect was excessive or not. There, the accused was using narcotics, and fled when he saw a police vehicle. He was chased by Officer Yum, and ignored demands to stop. He climbed under a car to avoid arrest. Rather than crawl under the car to capture the suspect, Officer Yum kicked the suspect in the chest. The trial judge found the intent of the kick was to “stun, distract and gain control of” the suspect, and the kick was not administered out of anger or frustration.

The issue there was whether Officer Yum incurred criminal responsibility for the kick. [ 20 ] The Court's analysis is contained in paras. 7 – 12:

7 We think the evidence yields the common sense inference that the officer had reasonable cause (or articulable cause) to pursue thearrest and detention of the suspect and to employ the force he did. Viewed through the prism of what he faced, a kick delivered for thepurpose stated was not excessive and was, therefore, not criminal.

We respectfully disagree with the trial finding that it was. 8 We assess the circumstance as a decision taken by a police officer in the clear performance of his duty, a decision taken neither fromrevenge, anger or malice and which could only be characterized as an application of situational force designed to dissolve a potential riskto his own personal safety. 9 It is patently obvious that a peace officer kicking a suspect is a matter which must be deplored as well as investigated. The courts willintercede in these incidents and so will police administration.

That is only right and proper. 10 Here, however, the kick was administered under a legitimate motive. The trial judge said so. Had the force been applied without aweapon or in some other way, i.e. by a nightstick or a flashlight, and without injury to the suspect, the matter may well have rested atthat. But a kick as an instrument of force must be assessed carefully. The optics here are far worse than the actual force employed.

It isthe package, not the content, that offends. 11 Here, the justification for force was accepted by the trial judge, who had all the circumstances before, not only her, but the Constableas well. We do not find a criminal act. 12 In these difficult cases, we are in agreement with the approach suggested by Ryan J.A. in R. v. Ferris (1998) (BCCA), 126 C.C.C. (3d) 298.

". . . where a police officer observes unusual conduct that leads the officer reasonably to conclude in light of his or her experience thatcriminal activity may be afoot, the police officer may approach and briefly detain the suspect to make reasonable inquiries aimed atconfirming or dispelling the officer's suspicions. At this point, however, the focus must shift from the legitimate state interest in investigating crime to the protection of the police officerentrusted with that duty." [21] The case is helpful, but not determinative.

The issue there was the police officer's potential criminal responsibility forsomething that might be characterized as excessive force. The issue here is whether Mr. Walters' s. 7 rights were violated. [22] A criminal assault on the part of the police might well be conclusive of a s. 7 breach, but I do not think it is necessary for thepolice to have committed a criminal act for there to have been a s. 7 violation. [23] The Supreme Court of Canada recently addressed when police may resort to force to complete an arrest or prevent escapefrom custody in R v Nasogaluak, 2010 SCC 6.

There the police were involved in a high speed pursuit of a drunk driver. The policeordered him to step out of the car, and when he failed to do so, the police officer punched him in the head twice and wrestled him out ofthe car. He continued to resist, and the officer punched in the face a third time. He was pinned face down to the ground, hands beneathhim, with the officer kneeling on his thighs holding him down.

The accused refused to offer up his hands to be cuffed and a secondofficer punched him twice more, breaking his ribs and puncturing a lung. [24] The Court noted that the allowable force to complete an arrest is constrained by three factors: 1. proportionality, 2. necessity, and 3. reasonableness.

[25] The Court further noted that under s. 25(1) of the Criminal Code, the use of force to effect a lawful arrest is justified if thepolice officer believes on reasonable and probable grounds that it is necessary and if only as much force as necessary is used.

The Courtalso noted that police officers are not to be judged against a standard of perfection, because they are required to react quickly todangerous and demanding situations. [26] In Nasogaluak, the Supreme Court upheld the Alberta Court of Appeal’s decision that the police used excessive force, sincethe accused was pinned at the time of the punches by the second officer. [27] In Bolianatz v Edmonton Police Service, 2002 ABQB 254 Bensler J applied a number of factors to consider whendetermining whether excessive force was used on arrest, including the seriousness of the offence, the heat of the moment, the conduct ofthe offender, and the availability of other means of arrest.

Her analysis, cited with approval in Crampton v. Walton, 2005 ABCA 81,dealt with the application of s. 25 of the Criminal Code as an exemption from civil or criminal liability for police officers exercisingforce. [28] A chase scenario similar to the one at issue here, occurred in R v Gangl, 2010 ABPC 105. There the accused lead a highspeed chase through a red light, at which point the ground chase was suspended and he was followed by helicopter. When he stopped ata convenience store, police cars boxed him in in the parking lot. He attempted to run away, and was warned three times to stop.

Thepolice released a dog, who stopped the accused. A police officer pushed him to the ground. He resisted being handcuffed and the policekicked him three times, hit him twice in the back of the head, and hit him several times in the back. Once he was in handcuffs, nofurther force was employed. Matchett PCJ held that the application of significant force by the officers was necessary and did not causeany serious injury.

Given the circumstances and the risk inherent in the arrest, the force used was reasonable. [29] The question of how much force is reasonable once a suspect has been handcuffed was discussed in: R v Walcott (2008), (ON SC), 57 CR (6th) 223, 169 CAR (2d) 193 (PCJ) The accused was tapered twice, once after he was handcuffed and subdued. The Court noted that the permissible level of force duringrest is “such force as may be necessary to make an arrest and to continue the state of arrest.” The Court concluded that excessive forcewas used.

R v Fidler, 2009 BCSC 1253 The Court held that excessive force was used when booking a suspect after arrest who refused to identify himself. He was in handcuffs,and his legs were kicked out from under him and he was pinned to the ground by one officer. A second officer punched his stomach,ribs and crotch. The Court concluded that these blows were excessive, as he posed no threat to the officers. R v Mohmedi, 2009 ONCJ 533 An intoxicated accused, who used foul language, stiff armed being cuffed, and had to be forcibly “walked” to the police car, was hit (aknee strike) to force him into the police car.

Barnes J. concluded that excessive force was used as the accused was already in handcuffs,was making no attempt to flee, there was no urgency involved, and there were no safety concerns. R v Reid, 2010 ONSC 701 The Court concluded that excessive force was not applied to an accused who refused to keep his hands up, and appeared to be droppinghis hands to reach a pocket, leading the police to suspect he was reaching for a weapon. He dropped down to his knees, but continued toreach for his pocket, so the officer “push-kicked" him to get him down as fast as possible, and he landed on his stomach.

His hands wereunder his chest. Once down, he resisted being handcuffed and an officer stepped on the back of his head to keep him on the ground,enabling the other two officers to out his hands from under him and get him handcuffed. [30] The onus of proving a Charter violation is, of course, on the accused. Analysis - Findings of Fact

[ 31 ] I have no hesitation in concluding that the police had reasonable and probable grounds to arrest Mr. Walters in relation to the complaints of the three complainants who testified at the trial. He was correctly identified by surveillance. I do not see anything untoward in the conduct of the police officers involved in the identification and pursuit of Mr. Walters, at least to the point he was struck by the police vehicle. [ 32 ] Once Cst. Paton’ unmarked car pulled up near Mr. Walters, he was aware he was sought by the police. He made a deliberate choice to flee in order to avoid arrest.

It was not unreasonable for Cst. Wing to throw a flash-bang device over the fence in Mr. Walters' direction. Fleeing suspects have little to complain of when police use non-lethal methods to capture them. Apart from bright light and a loud noise, there was no evidence suggesting that the flash-bang device could cause physical harm to someone in the immediate area of its deployment. [ 33 ] Thereafter, Mr. Walters continued to evade the police. When he was observed crossing Malcolm Tweddle park, it was again not unreasonable for the police vehicles to pursue him.

A further deployment of a flash-bang device was not unreasonable. Whether police officers where shouting at him to stop is in my view irrelevant. Mr. Walters knew he was being pursued by the police, he knew they wanted him to stop, and he made a conscious choice to continue to flee. [ 34 ] When Cst. Paton fired the first round of the ARWEN at Mr. Walters, he was in my view entitled to do so. The police were entitled to stop Mr. Walters and he was refusing to stop. Other measures had failed, so more aggressive methods were in order.

The first rubber bullet had no effect; subsequent rounds were reasonably deployed and again had no effect on Mr. Walters. [ 35 ] The “fencing in” of Mr. Walters by the police cars in the park was a reasonable tactic to stop him. Mr. Walters was faster than Cst. Wing who was pursuing him on foot. Apart from trying to block his path or surround him, there appeared to be few alternatives to capturing him. I conclude that Mr. Walters was not intentionally struck when Cst. Kightley's police vehicle struck him. He was being encircled, and it was Mr.

Walters' evasive movements that caused him to be struck, rather than any deliberate attempt on the part of any of the police officers to run him down. [ 36 ] That event did slow his course. It is improbable in my view that Mr. Walters immediately became submissive and compliant, as he testified. Nevertheless, I have difficulty with Mr. Walters being kicked into submission and compliance. [ 37 ] Cst. Wing testified that he was concerned about his safety because the briefing indicated that Mr. Walters had used a knife in the sexual assaults and may have had a gun.

There was no reasonable basis in the evidence before me for the tactical team to think that Mr. Walters had a gun. That information may have given them an understandable concern for their safety, but any police action sought to be justified by the possible presence of a gun cannot be so justified if there is no objective basis for such a belief. Being told so by the officer doing the briefing does not meet that test, unless the briefing officer has an objective basis to include such a concern or warning. [ 38 ] Nevertheless, there was an objective basis to be concerned about the presence of a knife. Cst.

Wing emphasized the importance of being able to see Mr. Walters' hands. Cst. Wing had told Mr. Walters to get down on the ground and put his hands behind his back. He then pulled Mr. Walters down by his coat. Mr. Walters “turtled up”, assuming a fetal position, and Cst. Wing could not extricate his hands to get them behind his back to handcuff him. He then kicked Mr. Walters a few times. Mr. Walters was still not compliant and continued to be combative. According to Cst. Wing, Cst. Paton then showed up and he assisted with the arrest. [ 39 ] According to Cst. Wing, he was controlling Mr. Walters' head.

He had his knee on Mr. Walters' back near his head where he had some leverage to pull Mr. Walters' hands out from under him. He testified that Cst. Paton helped him handcuff Mr. Walters. [ 40 ] As for the kicking, Cst. Wing testified that he was attempting to kick Mr. Walters in the arms. This technique (leg stuns) was part of his police training. He had his hand on the back of Mr. Walters' head. On cross-examination, he emphasized that this was a very “dynamic” event and everything happened quickly. When he kicked Mr. Walters, he was either bent over Mr. Walters or kneeling.

He described the kicks as “compact” and not like a soccer kick. [ 41 ] On cross, he indicated that he did not have Mr. Walters handcuffed when Cst. Paton arrived to assist. He said that he may have kicked Mr. Walters in the arms, stomach and side area.

[ 42 ] Constable Knightly, who had driven the police car from which Cst. Paton deployed the ARWEN, testified that he saw nothing in relation to the arrest. He was in his police vehicle and saw some physical contact between Cst. Wing and Mr. Walters but nothing more. [ 43 ] Cst. Paton testified that he got out of the police vehicle after Cst. Wing tackled Mr. Walters, slung the ARWEN over his shoulder, and went to assist Cst. Wing. Mr. Walters was struggling with Cst. Wing. Cst. Wing was able to get one of Mr. Walters' hands into handcuffs, and Cst. Paton helped with the other hand. At that stage, Mr.

Walters was on his back, and Cst. Wing was on top of him, trying to get Mr. Walters over onto his stomach. At some point, the ARWEN slid out of position on Cst. Paton's back and the barrel struck Mr. Walters on the head. I accept Cst. Paton’s evidence that the cut to Mr. Walters’ head caused by the ARWEN slipping was an accident, and I find no fault on Cst. Paton’s

part in that regard. [ 44 ] Cst. Paton testified that Mr. Walters continued to struggle until he was able to get the handcuff on Mr. Walters' other hand. [ 45 ] On cross-examination, Cst. Paton stated that when he arrived to assist Cst. Wing with the arrest, Cst. Wing already had one hand handcuffed. [ 46 ] There are significant discrepancies in the evidence at this point. Cst. Wing is unsure as to whether he was standing over Mr. Walters or whether he was on top of him. In direct, he testified that because he was unable to get Mr. Walters' hands behind his back, he kicked him.

His evidence was that he did not get either hand cuffed until Cst. Paton came to his assistance. He was trying to extricate Mr. Walters' hands from underneath him. Cst. Paton's evidence was that when he arrived to assist, one of Mr. Walters' hands was already cuffed, and Cst. Wing was on top of him, trying to get him over on his stomach. [ 47 ] I recognize that this was a dynamic situation. There had been a somewhat frenzied chase. There was reason to be concerned that Mr. Walters had a knife with him. He was suspected of committing violent acts.

Legitimate concerns for police safety should never be downplayed or trivialized. The police should not be expected to act perfectly (in hindsight) when faced with a potentially dangerous situation. [ 48 ] Nevertheless, the police are trained in procedures for pursuit and arrest. Tactical teams, in particular, have extensive training as to how to deal with potentially difficult and dangerous apprehensions and arrests. Mr. Walters had been chased for some time. There were at least two police cars in the immediate area, and at least four police officers (two from tactical team). Cst. Wing had tackled, or taken Mr.

Walters down. According to him, Mr. Walters had turned turtle, and he could not get Mr. Walters' arms free. [ 49 ] Cst. Wing did not suggest that he stood over Mr. Walters and ordered him to put his hands behind his back. Cst. Wing's evidence suggests that he was kneeling on Mr. Walters' back. Mr. Walters was non-compliant, but there was no suggestion that Mr. Walters was using his hands to try to strike Cst. Wing. [ 50 ] I cannot see how Cst. Wing could have kicked Mr. Walters if he as kneeling on Mr. Walters' back. I also cannot see how Cst.

Wing could have delivered any effective kicks if he was bending over Mr. Walters and grabbing for his hands. Assistance from Cst. Paton was feet and seconds away. By this stage Mr. Walters was not going anywhere. [ 51 ] Cst. Wing's evidence is not reconcilable with Cst. Paton's. According to Cst. Paton, Cst. Wing had quickly handcuffed one of Mr. Walters' hands, but was struggling with the other. I appreciate that Cst. Wing candidly admitted to kicking Mr. Walters more than once. His explanation was that the kicks were to get Mr.

Walters to comply with his requirement to see both of his hands, out of officer safety concerns. [ 52 ] Mr. Walters testified that the kicks came after he was handcuffed. If I believe that evidence, that is virtually conclusive of a s. 7 violation. [ 53 ] There is no doubt that Mr. Walters was kicked. As noted by the Court of Appeal in Yum , when a suspect is kicked, or force is

used, the situation must be investigated. The Court must be satisfied that the use of force was reasonable. Particular scrutiny should be applied to something like a kick, instead of “a night stick or flashlight, and without injury”. [ 54 ] There was no medical evidence as to any injuries. Some of the police observed blood on Mr. Walters' head, which Cst. Paton explained resulted from his ARWEN barrel accidentally striking Mr. Walters. Other officers involved made no observation of any blood.

The police evidence on this point is contradictory. [ 55 ] In these circumstances, can I conclude that the kicks were excessive in the circumstances? [ 56 ] Regardless of when the kicks were administered, I find no reasonable basis for them to have been employed in the circumstances here. Mr. Walters had been stopped. He was on the ground. He was either “turtled up” or with Cst. Wing kneeling on him with one of the handcuffs already on. Cst. Wing was not asking Mr. Walters to obey his commands to show his hands; he was actively trying to get Mr. Walters' hands free so he could handcuff him. According to Cst.

Paton, he had been partly successful, but needed help to get the other hand handcuffed. [ 57 ] I hesitate to use hindsight to scrutinize and criticize police action when they are in a potentially dangerous situation and have reasonable officer safety concerns. Here, however, I do not see that there were reasonable officer safety concerns at the time the kicks were delivered. Mr. Walters was on the ground and there were at least four officers present. It might be a different situation if Cst. Wing had moved out of knife range and made verbal demands for Mr. Walters to show his hands.

Refusals from some distance might well justify some eventual use of force. But the evidence satisfies me that Cst. Wing had the situation under sufficient control, with sufficient back up, such that no kicks were necessary. [ 58 ] I am suspicious about the timing of the kicks, but the timing here makes no difference to the result. Even viewed through the prism of this dynamic situation, I am not satisfied that the use of force here, by way of the kicks, was appropriate, reasonable, or necessary. Cst. Wing's intentions must be viewed using a subjective-objective test ( Nasogaluak at para. 34 ).

The explanation offered – officer safety – seems more like an after-the-fact justification of conduct which resulted from a dynamic, heat-of-the-moment situation after a strenuous and frustrating chase. [ 59 ] That is the case here. Mr. Walters has satisfied me on a balance of probabilities that the force used against him, namely the kicks by Cst. Wing, were not justified and unreasonable force was used to apprehend him. [ 60 ] As to whether the kicks were delivered before or after Mr. Walters was handcuffed, as I said above, I am suspicious. But the evidence really is a contest between Mr. Walters and Cst. Wing.

The onus of proof is on Mr. Walters. His testimony was forthright, but not credible as to his decision to become fully compliant and submissive after he was hit by Cst. Kightley's vehicle. His evidence as to the kicks was exaggerated and not substantiated by his appearance on the video interview immediately after the arrest. His face appeared unmarked, which is entirely inconsistent with his testimony of repeated kicks to the head. He showed no upper body, neck or head discomfort at all; any pain appeared limited to his lower body. [ 61 ] Cst.

Wing's evidence lacked credibility as to the manner in which the kicks were effected, and the extent of the struggles with Mr. Walters. I do not entirely believe his evidence. But where the court is unable to decide the matter on the basis of the credibility of two witnesses, the onus of proof is the determining factor. I am not satisfied on a balance of probabilities that any kicks were administered after Mr. Walters was handcuffed. [ 62 ] Essentially, that determination is not necessary to the finding of a s. 7 breach.

It is relevant to the remedies which may be appropriate considering the principles in Nasogaluak . Conclusion

[ 63 ] Mr. Walters' s. 7 rights were violated. The remedies for such breach will be considered and dealt with in the process of sentencing Mr. Walters. Heard on the 15 th , 16 th & 19 th days of September, 2011. Dated at the City of Edmonton, Alberta this 8 th day of November, 2011. R.A. Graesser J.C.Q.B.A. Appearances: Julie Roy & Lawrence Van Dyke Alberta Justice for the Crown David R. Willson Law Offices of David R. Willson for the Accused