R. v. Hanna, 2012 ABQB 391

Court of Queen ’ s Bench of Alberta Citation: R. v. Hanna, 2012 ABQB 391 Date: 20120626 Docket: 111181988Q1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - Dwayne Daryl Hanna Accused _______________________________________________________ Oral Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Dwayne Hanna was charged on a five count indictment with: (

a) dangerous operation of a motor vehicle; (

b) driving while disqualified;

(

c) two counts of breach of recognizance – one requiring him to keep the peace and be of good behaviour and the other disabling him from being behind the steering wheel of a motor vehicle; and (

d) assault with a weapon (a motor vehicle). [ 2 ] These charges arose from an incident on June 20, 2011, which began when Sheriff Oscar Behiels, a Sheriff employed in the Wetaskiwin Integrated Traffic Unit (the "Unit") spotted a black Grand Am sedan driving behind him and advancing on him quickly on Secondary Highway 611 near Wetaskiwin. Sheriff Behiels activated his radar, which showed a reading of 138 kilometres per hour for the black sedan. The speed limit on that highway is 100 kilometres per hour. Sheriff Behiels pulled over and waited for the black car to pass him, but it did not.

Instead, it slowed and turned left onto a range road. Sheriff Behiels described the slowing as "abrupt." Sheriff Behiels did a U-turn and followed, but lost sight of the car until he looked into a farmyard he passed and saw the vehicle just coming to a stop with the nose of the vehicle pointed towards the entrance to the farmyard. Sheriff Behiels drove his vehicle into the farmyard and stopped it with the nose of his vehicle facing the black sedan.

The vehicles were about six or seven feet apart, according to Sheriff Behiels. [ 3 ] There was only one occupant in the car, the driver, who started to get out but got back in when the Sheriff motioned him to do so. The Sheriff said that he was opening his door to exit when the driver of the black car gunned his engine and turned towards the Sheriff's vehicle, clipping the driver's side door with his mirror as he sped out of the farmyard, skidding as he went.

In cross-examination, Sheriff Behiels agreed that he was not certain whether he opened the door just before, at the same time, or just after the black sedan revved its engine. [ 4 ] It was Sheriff Behiels' impression that the driver of the black car was deliberately trying to hurt or kill him when it sideswiped his car. The officer said he was parked to the right of the farm driveway and there was plenty of room to his left, both on the driveway and, because there was no ditch, on the grass beside the driveway, for the black vehicle to get around him.

He thought the driver's actions in turning to his left towards the Sheriff ’ s vehicle were deliberate. [ 5 ] Fortunately, Sheriff Behiels was able to jump back into the driver's seat, thus avoiding serious injury, although he twisted his left knee as he did so. The Sheriff looked back to catch the black car's licence number, radioed it in along with a brief description of the incident and U-turned to follow it. The black car was not in sight, so he began making patrols and stopping other motorists in an effort to locate it.

About five or ten minutes later, as a result of information he received from another motorist, Sheriff Behiels located the black car in the ditch at the intersection of Secondary Highway 611 and Range Road 11. He relayed this information over the radio as well, and then waited in his car until other members of the Unit and other police personnel arrived.

Sheriff Behiels described the response of other personnel as "sizeable." It is evident that the police treated the incident seriously. [ 6 ] Sheriff Behiels' vehicle is equipped with an audio and video recording system which switches on automatically when the emergency lights are activated on the vehicle. This system also records the time and the speed of the Sheriff's vehicle. The recording is downloaded automatically into a central computer and, therefore, the entire recording was available at the trial and made an exhibit.

The recording largely corroborates the Sheriff ’ s evidence with respect to the events he described. [ 7 ] Mr. Hanna pleaded not guilty to all charges. Alternatively, he argued that the charges should be stayed because his rights under s. 7 and s. 12 of the Canadian Charter of Rights and Freedoms were violated when the police used excessive force during the course of his arrest; namely, that he was badly injured when the police used a police service dog to effect his arrest and was punched by the dog handling officer. [ 8 ] Since the only remedy being sought is a stay, I will deal firstly with the charges.

If the Crown has not proven that Mr. Hanna is guilty of any of the offences, there is no necessity to consider a stay. [ 9 ] In respect to Count #2, the charge of driving while disqualified, a Registrar's certificate of disqualification was entered by consent. It shows that on June 20, 2011, Mr. Hanna was disqualified from holding a vehicle operator's licence. The Defence admits that Mr. Hanna was disqualified from driving on the day in question.

[10] The doctrine of regularity operates, together with the certificate, as prima facie proof of the required mens rea for thisoffence; i.e., that the Accused knew he was disqualified from driving: R. v. Larsen (1992), (SK CA), 71 C.C.C. (3d)335 (Sask. C.A.). The black Grand Am was being driven on a secondary highway in the Province of Alberta when it was first observedby Sheriff Behiels. Clearly, a driver's licence is required for a person driving on such a road. As a result, provided the Crown has proventhat Mr.

Hanna was the driver of the black vehicle that day, the charge of driving while disqualified is made out. [11] I find that he was the driver that day. Sheriff Behiels was not asked to identify the Accused in the dock. However, the driveris briefly seen on the video and Sheriff Behiels is heard on the video describing him as an older Caucasian male, with glasses, amoustache and wearing a camouflage-coloured jacket, jeans and a cap. Further, although he initially mis-described the vehicle as aMonte Carlo when he radioed in the information, he corrected this quickly.

He also read the vehicle's licence number as it left, misstatingone letter or number. He said that he recognized the black car immediately when he found it in the ditch. I have no doubt that the blackGrand Am found in the ditch was the same car that Sheriff Behiels first observed behind him on Highway 611. [12] Corporal Michael Zinck, the RCMP dog handler who ultimately apprehended the suspect, did identify the Accused as theperson he apprehended.

Corporal Alexander Da Silva, another RCMP officer close to the scene, saw the suspect from some distance ashe was being tracked by Corporal Zinck before being apprehended and described the suspect as wearing a brown ball cap and acamouflage-coloured jacket. He saw the same person being escorted by Corporal Zinck after the apprehension and testified that thesuspect, when asked, identified himself as Dwayne Hanna, the Accused.

All of this evidence points to the Accused as being the driver. [13] However, the most significant linkage is the fact that the police service dog, Storm, picked up the scent of someone leavingthe black sedan where it rested in the ditch and followed it for over a mile before the Accused was apprehended. The trail the dogfollowed was through a rural area and through grass, trees and over country roads, where few other people were on foot, in conditionsthat Corporal Zinck described as ideal for tracking.

Nothing Storm did while tracking caused Corporal Zinck to have any doubt that thedog became confused or lost the track during the process. Indeed, Corporal Zinck said they proceeded at a run almost the entire timebecause Storm had no uncertainty about the track he was following. [14] On this evidence, I have no doubt that the Accused was the driver of the black Grand Am that Sheriff Behiels saw beingdriven on June 20, 2011. [15] Thus, I find that the Crown has proven that Mr.

Hanna is guilty of driving while disqualified, contrary to s. 259(4) of theCriminal Code of Canada. [16] In respect to Counts #3 and #4, two informations with recognizances attached were entered as an exhibit. These show that onSeptember 13, 2010, Mr. Hanna entered into a recognizance requiring him, inter alia, to keep the peace and be of good behaviour and notto be behind the steering wheel of any motor vehicle. The endorsements on both informations indicate that Mr.

Hanna pleaded guilty to alesser included offence in respect to one charge on July 14, 2011 and that the other charge was withdrawn. [17] The Crown must prove beyond a reasonable doubt that the Accused was bound by the recognizance on the day in question.Again, I can rely on the presumption of regularity in the operation of the court system. Had the recognizances been vacated for somereason prior to the final disposition of the charges, that would have been endorsed on the informations. It was not.

I find on the basis ofthe informations and endorsements tendered, together with the recognizances, that the Crown has proven beyond a reasonable doubt thatthe Accused was bound by these recognizances on June 20, 2011. [18] In respect to Count #4, the Crown must also prove that the Accused knowingly or recklessly breached the undertaking hegave. However, as I have found the Accused was the driver of the Grand Am on the day in question and, therefore, was behind thesteering wheel, there is really no issue about this.

The actions of the driver of the Grand Am on the day in question were not inadvertentor simply a mistake. He knew he was behind the wheel of the car while prohibited from being there. Therefore, I conclude that theCrown has proven beyond a reasonable doubt that Mr. Hanna is guilty under Count #4 of breaching his recognizance contrary to s.145(3) of the Criminal Code. [19] I will deal with Count #3, which charges Mr. Hanna with breach of his recognizance to keep the peace and be of goodbehaviour, after I have dealt with the charges under Counts #1 and #5.

[ 20 ] Under Count #1, the Accused is charged with dangerous operation of a motor vehicle. The required mens rea and actus reus for the charge of dangerous operation of a motor vehicle have twice been recently considered by the Supreme Court of Canada in R. v. Beatty , 2008 SCC 5 and again in R. v. Roy , 2012 SCC 26 . In order to prove that the Accused is guilty of dangerous operation of a motor vehicle, the Crown must prove a marked departure from the standard expected of a reasonably prudent person. To quote directly from the annotation to s. 249(1)(

a) in Martin's Annual Criminal Code 2012 (Aurora, Ontario: Canada Law Book, 2011) at 483): The actus reus requires proof beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of the traffic, that, at the time, is or might reasonably be expected to be at that place. [ 21 ] The mens rea requires me to be satisfied, on the basis of all of the evidence, that the conduct of the Accused amounted to a marked departure from the standard of care that a reasonable person would observe in the Accused's circumstances.

The subjective mens rea of intentionally creating a danger for other users of the highway will always constitute a marked departure from the standard expected, but subjective mens rea is not necessary. The objective mens rea is based on the premise that a reasonable person in the Accused's position would have been aware of the risks arising from the conduct and would have done something to avoid creating the danger. [ 22 ] The Crown points to a number of instances to argue that the Accused's driving pattern was dangerous.

When first observed by Sheriff Behiels, the Accused was clocked driving at 138 kilometres per hour, which was 40 percent greater than the posted speed limit. He was then described by the Sheriff as braking abruptly to turn into Range Road 12. After he was discovered in the farmyard by Sheriff Behiels, the Accused then took off to evade the Sheriff, cutting to the left as he did so and striking Sheriff Behiels' stationary vehicle with the Accused's driver's side mirror. Exiting the farmyard, he was driving at some speed and, from the marks on the road, swerved and skidded.

Ultimately, after attempting a left turn, the car came to rest in the ditch on the wrong side of the road from the direction it was travelling and facing the wrong way. The skid marks and marks in the grass show that the car turned 180 degrees before coming to a stop. [ 23 ] The Crown argues that all of this shows a marked departure from the standard of care of a reasonable driver in the circumstances.

The Crown further argues that if I find the Accused intentionally tried to hit Sheriff Behiels' vehicle, the necessary mental element is clearly made out, but even in the absence of such a finding, the fact that Mr.

Hanna intentionally left a traffic stop before he was permitted to do so by the Sheriff, intentionally left the scene of an accident, as well as his flight from police, are all evidence that the Accused knew of the risks arising from his conduct. [ 24 ] On behalf of the Accused, it is argued that the evidence does not support Sheriff Behiels' contention that the Accused deliberately tried to hit him and, in fact, the tire tracks photographed show that the black sedan swerved around the stopped police vehicle and did, in fact, go onto the grass.

Further, the timing of the opening of the door is very much in question and if Sheriff Behiels opened his door just after the black sedan was put into motion, it was perhaps only the opening of the door that caused the two vehicles to come into contact. The Accused argues that the remainder of the pattern of driving is insufficient to reach the marked departure standard required for conviction.

The Accused further says that the Crown has not proven the necessary mental element, and that flight and the supposed breaches of traffic legislation cannot be used as evidence of mens rea . [ 25 ] In respect to the original incident at the farmyard, I cannot conclude on the evidence that the Accused deliberately tried to hit the Sheriff ’ s vehicle. I find that the Accused put his vehicle in motion just before the Sheriff opened his door. On the video, it is evident that the black vehicle, although stopped, was still running when the Sheriff stopped his car just in front of and to the right of the black vehicle.

The driveway just at that point curved into a keyhole, going around an area of grass and trees in a circle on which a vehicle could turn around and return to the main part of the driveway. The black car was stopped on the right entrance to the small keyhole, but facing outward. [ 26 ] On the video, when the black car started moving, the Sheriff was on the radio reporting to dispatch, and so I find it unlikely that he also was in the process of opening his door. Instead, I conclude that he began to open his door either at the same time as the black car started moving or in reaction to it.

Due to the configuration of the driveway at that point, the Accused would have had to have turned his vehicle to the left so that he could re-enter the main part of the driveway. The tire tracks do not show an excessive veer to the left, but only that the driver was heading towards the exit. [ 27 ] The evidence establishes, however, that the Accused exited at a considerable rate of speed and without taking any reasonable

care to ensure that he did so safely. Even had the Sheriff not opened his door just at the wrong moment, the Accused's car would have come very close to the Sheriff's driver side door. The Accused must have known at that point that the Sheriff could be expected to get out of the car immediately or almost immediately. That was likely why the Accused left in such a hurry. In doing so, and in his haste to escape, he intentionally created a danger for the Sheriff. The Accused then turned out of the farmyard speeding onto the wrong side of the road.

Although the range road he exited onto likely was not well travelled, from the tire tracks I find that the Accused did not stop or even slow appreciably at the corner and took the corner at such a rate of speed that he was unable to remain on the correct side of the road. Had another vehicle happened to come along at that time, the Accused would have collided with it. [ 28 ] Further, when the Accused attempted to negotiate the turn where his car was ultimately found, it is clear from the tire tracks that he again tried to make a left turn at much too great a speed.

Again, he went into the wrong lane and was going so quickly that I find that he spun out of control and hit the ditch on the wrong side of the road. I conclude that he must have been going at some considerable rate of speed in order to have lost control as he did, clearly much too fast for the manoeuvre he was attempting. [ 29 ] At this point, he was on a secondary highway. Although it was daylight, it is clear from the video it had been raining intermittently that day, although the pavement appeared to be relatively dry.

Nonetheless, it was cloudy and if it was raining at the time the Accused attempted this turn, his vision or that of another driver could have been obscured by raindrops on the windshield. It is also clear that this secondary highway has some traffic. At the speed he must have been going, the Accused could not have done much checking to see if traffic was approaching toward him or in either direction on the range road he was attempting to turn onto. No reasonable person would have attempted what he did at that speed in those circumstances.

I find this incident in particular a marked departure from the standard of a reasonable driver. [ 30 ] Overall, the pattern of driving both at and after the incident in the farmyard satisfies me that the Crown has met its onus. The actus reus of dangerous driving is established by the pattern of driving generally and particularly by the collision in the farmyard and the attempted turn and spin-out where the car came to rest. [ 31 ] In driving as he did, the Accused created a danger to the public, including Sheriff Behiels.

Objectively, a reasonable person in the Accused's position would have been aware of the risks arising from such conduct and would have done something to avoid creating the danger. [ 32 ] I find, therefore, that the Crown has proven that the Accused is guilty of the offence of dangerous driving contrary to s. 249(1) (

a) of the Criminal Code as outlined in Count #1. [ 33 ] As a consequence of my findings with respect to Count #1, and bearing in mind as well that the Accused was speeding, failed to remain at a traffic stop until permitted to leave, left the scene of an accident, and evaded police, I also find that he deliberately breached his undertaking to keep the peace and be of good behaviour. As a result, I conclude that the Crown has proven that the Accused is guilty of breach of his recognizance as charged in Count #3. [ 34 ] That leaves for disposition in respect to the counts of the indictment the charge of assault with a weapon (to wit a motor vehicle) contrary to s. 267 (

a) of the Criminal Code . [ 35 ] Assault is defined in s. 265 of the Criminal Code . As I have concluded that the Accused did not intend to strike Sheriff Behiels' vehicle with his own, I cannot find that the Crown has proven that he had the intent necessary to actually hit the vehicle. However, as the Crown points out, the necessary intent can also be found if I conclude that the Accused's intention was to threaten the Sheriff. [ 36 ] I cannot find here that the Crown has proven beyond a reasonable doubt that the Accused had that intent.

Undoubtedly, when the Accused revved his engine, intending or not caring if he came extremely close to the Sheriff ’ s car, he acted rashly and uncaring of whether he hit the Sheriff's vehicle or even the Sheriff himself, if Sheriff Behiels happened to get out of the car just at the wrong time. It is possible that he did so deliberately in order to physically keep the Sheriff from exiting the vehicle or to threaten him to stay where he was.

However, there are many other possible explanations for the Accused's behaviour – panic at the possibility of being apprehended when he knew he was driving without a licence being only one. I am left in doubt about what the Accused's intent was when his car collided with that of the Sheriff .

[ 37 ] I find, therefore, that the Crown has not proven that the Accused is guilty of assault with a weapon as charged in Count #5 and I acquit him of that charge. [ 38 ] However, as I have found that the Crown has proven that the Accused committed the offences set out in Counts #1 through #4, I must consider whether a stay should be entered here because of the excessive force alleged to have been used on the Accused during his arrest and any breach or breaches of his Charter rights under s. 7 and s. 12 of the Charter . [ 39 ] The following evidence was given in voir dire . [ 40 ] Corporal Zinck, the dog handler, testified about his tracking of and subsequent arrest of the Accused.

He and another police officer, accompanied by Corporal Zinck's police service dog Storm, were driving on Highway 2 when he heard the radio call asking for backup for Sheriff Behiels. They, along with Constable Druhan, who was in another car, were on their way to a training exercise scheduled to take place near Rocky Mountain House. They were fairly close to where Sheriff Behiels was and diverted to try to help. [ 41 ] Corporal Zinck arrived at the location where the black sedan was in the ditch at 11:20 am.

Sheriff Behiels was standing outside his own vehicle and gave Corporal Zinck some quick information about what had occurred and where the suspect had last been seen, according to the Sheriff ’ s information. Constable Druhan had arrived as well and Corporal Zinck asked him to accompany him as back up in tracking the fugitive. Constable Druhan agreed to do so. Corporal Zinck harnessed Storm and they started off. Corporal Zinck described Storm as a six-year old male German Shepherd dog who has been in active service for about five years. He weighs about 75 pounds.

He has one metal canine tooth as a result of a training accident. [ 42 ] Corporal Zinck said that Storm picked up a scent almost immediately when they got to the vehicle in the ditch and signalled that he had found it. The dog's attention was briefly drawn to a large ziploc baggie found close to the vehicle and to several small baggies scattered around it. Although Storm is trained to find drugs, he did not indicate that the baggies contained drugs, but indicated instead that he found the human scent he was tracking on them.

In passing, Corporal Zinck noted that the ziploc baggie contained a green leafy substance that looked to his police-eye like marijuana. What was in the baggie later was weighed and found to be 130 grams, but the substance was never analyzed. [ 43 ] Corporal Zinck testified that he followed the dog over various types of terrain for over a mile. He showed on a topographical map the route he followed. It took them parallel to the secondary highway for some time, crossing farmers' fields until it doubled back across a range road and then across the secondary highway to a place of higher elevation.

It then doubled back across the range road and into a farmer's field, finally ending in a wooded area. At times, they travelled through rough terrain and through barbed wire fences. Corporal Zinck was wearing gloves so these did not bother him. His impression was that the person being tracked tried to keep to lower areas generally, and he thought this was so the suspect could avoid being seen from the road. [ 44 ] During the course of this chase, which took about an hour, they travelled quickly, often at a run and the dog betrayed no hesitation or other indication that he had lost or was unsure of the track.

Constable Druhan was able to keep up until they entered the wooded area, just after Storm went into what he called overdrive, running faster than he had before. [ 45 ] It was in the wooded area that Corporal Zinck and the dog came upon the suspect, who was facing away from them and seemed to be looking at the police cars on the secondary highway. Corporal Zinck made the decision to deploy the dog without warning the suspect first. He gave the command and dropped the dog's leash.

The suspect turned to face them and the dog grabbed hold of the suspect's left arm. [ 46 ] Corporal Zinck testified that the suspect reacted by holding onto the dog's muzzle. Corporal Zinck told the suspect he was under arrest and to let go of the dog and then ran towards the suspect. He punched him in the face, causing him to fall to the ground.

The suspect still had hold of the dog's muzzle, however, and Corporal Zinck testified that he punched the suspect two or three more times on the left side of his face until the suspect released the dog's muzzle and Corporal Zinck was able to get control of the suspect's hands. The dog let go of the suspect's arm and bit and held onto his leg. Corporal Zinck testified that Constable Druhan arrived as he was still trying to control the suspect's hands. Constable Druhan took over and Corporal Zinck was able to disengage the dog and get out his handcuffs so that the Constable could handcuff the suspect.

[ 47 ] Constable Andrew Druhan's cross-examination evidence from the preliminary hearing was entered both by recording and transcript by agreement. His evidence was that he had been on his way to the training exercise when he diverted as well. He followed Corporal Zinck throughout the tracking process and was able to keep up throughout, until near the end when they entered the wooded area. At that time, he tripped on some branches and fell. He heard Corporal Zinck yell while he was not yet within sight of him. When he first arrived, Storm had hold of the suspect's leg.

Corporal Zinck was just taking Storm off the suspect. He did not see Corporal Zinck struggling with the suspect. His testimony was that he had Corporal Zinck's handcuffs with him and handcuffed the suspect, who did not resist in any fashion. [ 48 ] As was underlined again by the Supreme Court of Canada in R. v. Nasogaluak , 2010 SCC 6 , police officers do not have an unlimited power to inflict harm on a person in the course of their duties.

While at times the police may have to resort to force in order to complete an arrest, the allowable degree of force to be used is constrained by the principles of proportionality, necessity and reasonableness.

Illegitimate use of power by the police has grave consequences and courts must and will guard against the illegitimate use of power by the police. [ 49 ] The legal constraints on a police officer's use of force are enshrined in s. 25 of the Criminal Code , the relevant portions of which are as follows 25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law . . . (

b) as a peace officer or public officer, . . . is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. . . .

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if (

a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (

b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (

c) the person to be arrested takes flight to avoid arrest; (

d) the peace officer... believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(

e) the flight cannot be prevented by reasonable means in a less violent manner. [ 50 ] As the Supreme Court of Canada explained at para. 34 of Nasogaluak : Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances...

Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis ( Chartier v. Greaves , [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59 ).

If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner. [ 51 ] On behalf of the Accused it is argued that Corporal Zinck's actions and beliefs were not objectively reasonable in the circumstances. He failed to warn Mr.

Hanna before releasing his dog to attack, thus failing to give the Accused an opportunity to surrender, when he knew that the Accused would be injured, perhaps grievously, by the dog attack. Further, he failed to call the dog off as soon as practicable, thus increasing the injury to the Accused. The Defence argues that the risk that Corporal Zinck had to assess was objectively low at the time. The Accused was stationary. He was more or less contained because there were police officers stationed in the vicinity and there was nothing to suggest that he had a weapon of any sort.

Under the circumstances, it is argued, there was little risk to either Corporal Zinck or anyone else, in first giving a warning and an opportunity for the Accused to surrender before releasing the dog. It was unlikely that the Accused would run because he was likely to have known that he was being pursued, and that there were police all around.

Even if the Accused did choose to run again, the level of containment the police had in place made it unlikely that the Accused would get far. [ 52 ] Further, the Defence argues that the result of the surprise made the Accused's reaction much more unpredictable and the risks, therefore, more extreme rather than less. [ 53 ] I disagree. What Corporal Zinck understood at the time is relevant to this consideration. He knew little about the person he was tracking but what he did know gave him great concern that the person he was dealing with was potentially dangerous.

I am not satisfied that Corporal Zinck knew specifically that Sheriff Behiels had told other officers that the driver of the black car had tried to kill him. In the conversation between the two of them that was recorded, Sheriff Behiels did not say that the driver had tried to kill him. [ 54 ] However, as he testified, Corporal Zinck could see that Sheriff Behiels was frightened by his encounter and, to his knowledge at the time the person had driven dangerously close to Sheriff Behiels.

He also had passed by the vehicle in the ditch and seen what, in his experience as a police officer, he thought was likely marijuana in a ziploc baggie located near to the ditched car and with several other smaller baggies scattered nearby as well. This caused him to think that he might be dealing with a drug dealer who, in his experience, frequently carry weapons. Further, when Corporal Zinck finally came on the suspect, he had just tracked him in a zigzag route through sometimes rough terrain, for more than a mile.

He thought, and reasonably so, that he was tracking a person who was very motivated to escape the police. Corporal Zinck was also in a stand of trees at the time and alone, except for the dog and the suspect. Constable Druhan had fallen behind and Corporal Zinck did not know where he was at that moment. [ 55 ] Corporal Zinck had his service revolver, but no taser or baton, and he had to make a split-second decision. Should he warn the Accused that he would release the dog or not? If he did warn the Accused, would he again try to escape? Could he do so successfully? They were located in a rural area.

Corporal Zinck undoubtedly knew that other officers were attempting to contain the area, but he did not know if they were blocking all possible means of escape, and indeed, they were not. Nor did he know precisely where Constable Druhan was and if he could help. He did not know if, in fact, Constable Druhan himself would be in danger if the Accused bolted into him or he was injured. Corporal Zinck did not know if the Accused was armed, but he did know he was very anxious to evade the police.

He did not know if the Accused was aware of his presence, but he knew that the Accused likely knew he was being pursued or, at the very least, that the police were searching for him. The decision he made was not to warn the Accused. I find that was an objectively reasonable choice for him to make under the circumstances and with the information he had at the time.

[56] Nor do I find on the evidence that Corporal Zinck failed to call off the dog as soon as he could. The evidence of CorporalZinck and Constable Druhan is difficult to reconcile about the timing of events. Constable Druhan testified that when he arrived on thescene, the dog was still biting the suspect's leg but that immediately after he arrived, Corporal Zinck gave the command to disengage thedog and the dog obeyed.

Corporal Zinck said that when Constable Druhan arrived, he was still actively trying to control the suspect'shands and that, until Constable Druhan took control of the suspect's hands, he was not able to disengage the dog. [57] The events described, during which the dog engaged the suspect, took place in only a short period of time. Corporal Zinckestimated the time at about 30 seconds. It is not clear exactly when Constable Druhan came on the scene or when Corporal Zinckbecame aware that he was on the scene.

During the few seconds after Constable Druhan arrived, both he and Corporal Zinck wereactively engaged with the suspect. There was a lot going on. It is not surprising that their memories of exactly what occurred could differ. [58] There is no doubt that the Accused suffered some relatively serious injuries as a result of the use of the dog. The photographsand the evidence of Corporal Da Silva make this clear. The marks on the Accused's left arm and both thighs could be puncture marksconsistent with dog bites and were identified as such by Corporal Zinck.

The marks on the Accused’s left shin area are more extensiveand could also be the result of a dog bite or bites. [59] I find that all of these injuries were the result of the dog's attack. On the evidence I heard, these marks are consistent withwhat Corporal Zinck said occurred – Storm first bit and held the suspect by the left arm and then, when Corporal Zinck closed in to try toget control of the Accused's hands and to try to stop the Accused from holding on to the dog's muzzle, the dog shifted his grip to theAccused's legs.

The injuries also are consistent with the utterance of the Accused, who was reported by one of the officers to have saidspontaneously immediately after his arrest that he had been trying to kick the dog off his leg. [60] It appears from the photographs that the Accused's hands were bleeding quite profusely and his fingers were cut in severalplaces.

However, I am satisfied from the evidence that these injuries were not caused by the dog or by anything that Corporal Zinck did.Instead, they were likely caused by the barbed wire on the many fences that the Accused had to get through as he was being pursued byCorporal Zinck and his dog. Corporal Zinck's evidence, which I accept, was that while they were tracking the Accused, the dogexpressed interest in a highway marker sign they went by. When Corporal Zinck looked at it, he could see fresh blood.

This evidence,together with the description of both Corporal Zinck and Constable Druhan that they had to cross through barbed wire fences, satisfiesme that the Accused's hands were bleeding before he was attacked by the dog. [61] Corporal Zinck also struck the Accused. He testified that he did so after Storm had hold of the Accused's left arm but was stillstanding erect. He did so because the Accused grabbed the dog's muzzle. He told the Accused he was under arrest and to let go of thedog. The Accused failed to do so and Corporal Zinck punched him once in the face.

The Accused fell to the ground but still had hold ofthe dog's muzzle. Corporal Zinck struck the Accused two or three more times on the left side of his head until the Accused let go of thedog's muzzle. The dog then adjusted its bite from the arm to the Accused's leg. [62] The photographs of the Accused's face when he was arrested do not show any bruising or swelling. There is a small area ofblood just beside the Accused's right eye, but it is not clear if this is transfer blood or from an injury at that site.

Corporal Da Silva did notnote any bruises to the Accused's head when he inspected his injuries, but did recall that the Accused was complaining of right jaw painafter his arrest. [63] Although s. 25 of the Criminal Code authorizes a police officer to use as much force as necessary for the purpose of makingan arrest, it does not allow the officer to use excessive force. To do so is a breach of s. 7 or s. 12 of the Charter. [64] An officer is not, however, expected to "carefully measure" the exact amount of force the situation requires where the use ofsome force is justified: R. v.

Belter, 2008 ABQB 133 at para. 31, quoting with approval from Bolianatz v. Edmonton (City) PoliceService, 2002 ABQB 284. Nor is an officer expected to use only the least amount of force which might successfully achieve theirobjective: R. v. Canada (Royal Canadian Mounted Police) (1981), (BC CA), 22 C.R. (3d) 371 (B.C.C.A); Belter atpara 35. [65] I find that the punches administered by Corporal Zinck were not excessive. When he punched Mr. Hanna the first time, theAccused was still standing and was aggressively attacking the dog, likely attempting to dislodge its grip. Although that first punch felled

Mr. Hanna, he was still struggling to free himself from the dog and was far from being under Corporal Zinck's control. It was only afterhe administered the last few punches that Mr. Hanna let go of the dog's muzzle, as is evidenced by the fact that the dog readjusted its bitefrom Mr. Hanna's left arm to his leg. Corporal Zinck testified, and I accept, that he did not order the dog to do this but said that, in hisexperience, if he was being hurt by someone he was holding on to, the dog would readjust his bite so as to stop whatever was happeningthat hurt him.

I find that is the likely reason that Storm released Mr. Hanna's arm and began to hold onto his leg. I also find it likely thatthe lacerations on Mr. Hanna’s lower leg were the result of Mr. Hanna struggling with and perhaps kicking at the dog, and the dog'sattempts at holding on, and were not the result of any excessive or gratuitous force used by the dog with or without a command byCorporal Zinck. The dog was simply doing its job. [66] Whether on Corporal Zinck's version of events or Constable Druhan's, I do not find that the dog was permitted or ordered tohold onto Mr.

Hanna any longer than was necessary to allow him to be brought under control. [67] In short, I do not find that the force used against Mr. Hanna in effecting his arrest was excessive. [68] The Defence relies on some dozen or so cases from various jurisdictions in support of its argument that the force used wasexcessive, including: R. v. Markowska, 2004 ONCJ 332; R. v. Woodland, 2001 BCPC 255; R. v. S.T., [1997] O.J. No. 5579 (Prov. Div.)(Q.L.); R. v. Gladue, [1993] A.J. No. 1045 (Prov. Ct. (Crim. Div.)) (Q.L.) ; R. v. Murphy (2001), (SK PC), 29 M.V.R. (4th) 50 (Sask. Prov. Ct.); R. v.

Wiscombe, 2003 BCPC 418; R. v. S.F., (2003) 102 C.R.R. (2d) 288 (Ont. Ct. Just.); R. v. Kemper, [1989]O.J. No. 3310 (Prov. Ct. (Crim. Div.)) (Q.L.); and R. v. Henlin, [1999] O.J. No. 2015 (Ct. Just. (Prov. Div.)) (Q.L.). [69] Each of these are cases in which a court found that the force used by the police was excessive and the accused's Charterrights were breached. I have read these with some interest, but conclude there is a fundamental difference between each of these casesand the situation here.

In each of the cases cited by the Defence, the police officer or officers involved engaged in what could only bedescribed as bad faith behaviour: gratuitous violence or high-handed behaviour designed to demean the defendant, and sometimesextra-judicial punishment. None of that is evident in the facts as I have found them here. [70] There was no denial of treatment as occurred in cases such as Nasogaluak. While Corporal Zinck did not, himself, call anambulance, an ambulance was called by one of the officers on the scene and Mr. Hanna was helped into it and taken to hospital by EMS.There was no delay in treatment.

According to Corporal Da Silva, the ambulance arrived within 10 or 15 minutes, after Corporal Zinckemerged onto the road with the Accused and placed him in a patrol car. The Accused was, in fact, treated with some compassion byCorporal Da Silva, who removed his handcuffs so that he could be handcuffed with his hands in front of him and be more comfortablelying in the ambulance. Corporal Da Silva testified that he tried to be careful when doing so, so as not to cause Mr.

Hanna any more pain.Corporal Da Silva rode with the Accused to the hospital in the ambulance and, when the Accused was released a few hours later, alsofilled the antibiotic prescription that the Accused was given at the hospital and ensured that the antibiotic pills and the painkillers he hadbeen given at the hospital were provided to the guard at cells. Corporal Da Silva testified as well that Mr. Hanna was given dry clothingbecause his was all wet and muddy.

His jeans had also been cut by EMS personnel when they were examining his injuries. [71] The only real evidence of any bad faith in respect to the incident here is found in the video and audio recording from SheriffBehiels’ vehicle. At 11:25 am, Sheriff Behiels had a conversation with another individual or individuals during which the other personsaid he was looking forward to seeing "this guy bit." Sheriff Behiels responded that he was looking forward to seeing him shot.

TheSheriff was unable to identify the other person he was speaking to, although it appears to have been another police officer or Sheriff.Corporal Zinck could not recall having this discussion with the Sheriff. Corporal Zinck and what appear to be three other officersappeared on the video about five minutes after the comment is made. It is clear from the evidence as a whole that a number of policeofficers responded to the incident and, in fact, shortly before this discussion, another police vehicle can be seen driving by.

SheriffBehiels interrupted a telephone discussion shortly thereafter to have a brief discussion with someone else, apparently directing them totake up a position on another range road. [72] On behalf of the Accused, it is argued that this comment is merely indicative of the whole tenor of the police response toSheriff Behiels' inflated contention that he was almost killed. [73] Clearly, the comment that Sheriff Behiels made was inappropriate and he admitted this in his testimony.

However, on thisevidence, I am not prepared to find that the discussion was between Sheriff Behiels and Corporal Zinck, or that it was Corporal Zinckwho made the comment about looking forward to seeing the suspect "bit." Further, although I make no such finding, even if thecomment made by Sheriff Behiels could be construed as a request or a command to harm the suspect, I heard evidence about the chain ofcommand in the Unit which satisfies me that Sheriff Behiels was not the operational superior of any of the RCMP officers and, inparticular, not the supervisor or superior of Corporal Zinck.

Corporal Zinck testified, and I accept, that he took no orders from Sheriff

Behiels, nor indeed from anyone else on June 20 th and proceeded to track the Accused simply because he knew that was what was required in the circumstances. [ 74 ] Sheriff Behiels was not present for the tracking of the suspect or when he was apprehended. I am not satisfied that his brief comment, made only minutes after the farmyard incident, was anything other than a comment made out of bravado by Sheriff Behiels and as a consequence of the adrenalin that he undoubtedly still had in his body from the near miss in the farmyard.

Nor am I satisfied that the comment made by the unknown other person had any effect on the behaviour of Corporal Zinck when the Accused ultimately was apprehended. [ 75 ] It is true, as the Defence points out, that the response by police personnel was large and in the "all hands on deck" league because they thought that one of their fellow officers had been put in grave danger. However, that fact alone is not enough to found any conclusion that bad faith was involved. The police must respond to situations such as the one involving Mr. Hanna.

Although the incident began with what they at first thought was an attempt to harm a fellow police officer, there was ample reason to pursue Mr. Hanna for that reason and for many others. He was fleeing police and they had reason to believe he was dangerous to the public. [ 76 ] As I have found that the police did not use excessive force in arresting Mr. Hanna and that there was nothing else in their treatment of Mr.

Hanna that would breach his right to security of his person, or would amount to curtailment of his liberty or cruel and unusual treatment, it necessarily follows that I find no breach of his Charter rights. [ 77 ] However, in the event that I am wrong, I will consider what remedy would have been appropriate. The remedy of a judicial stay on the grounds that excessive force was used by the police in effecting an arrest recently was discussed by the Alberta Court of Appeal in R. v. Gangl , 2011 ABCA 357 .

That case has a number of similarities to the case at bar inasmuch as a police service dog was also used in the course of Mr. Gangl's arrest and a judicial stay of the charges was also sought as a remedy. In the course of its reasons, the Court commented on several bases on which judicial stays could be sought, including as a "just and appropriate remedy" under s. 24(1) of the Charter either to discipline the police or to compensate the offender. The Court of Appeal concluded that a judicial stay was not a remedy which could ever be found as just and appropriate.

In para. 27 of its Reasons, the Court said this: More broadly, we can discern no logical and legal framework on which any such remedy could be founded as just and appropriate. We disapprove of the approach of simply jumping from a finding of police use of force all the way to a stay of proceedings of an otherwise regular prosecution.

Courts seeking to vindicate Charter values should not be trimming them down, but neither should the grant of Charter remedies be a forensic lottery without a foothold in legal principle or a principled connection to the scope of competence of the court. [ 78 ] Suffice it to say that, based on the decision in that case, which is binding upon me, even had I concluded that the force used here was excessive, I would not have granted a stay of the charges on which I have found the Crown has proven that Mr. Hanna is guilty. [ 79 ] Please stand Mr.

Hanna. [ 80 ] I find you guilty in Count #1 of dangerous driving contrary to s. 249(1) (

a) of the Criminal Code , guilty under Count #2 of unlawfully operating a motor vehicle while suspended contrary to s. 259(4) of the Criminal Code , guilty under Counts #3 and #4 of breaches of recognizance contrary to s. 145(3) of the Criminal Code , but not guilty under Count # 5 of assault with a weapon contrary to s. 267 (

a) of the Criminal Code . Heard on June 4-7, 2012. Dated at the City of Edmonton, Alberta this 25 th day of June, 2012.

D.C. Read J.C.Q.B.A. Appearances: Gordon K. Hatch for the Crown Glenn A. P. Verdurmen 450 Lakeshore Drive NE PO Box 826, Stn. Main Salmon Arm BC V1E 4N9 for the Defendant