R v Othen, 2019 ABQB 906

Court of Queen’s Bench of Alberta Citation: R v Othen, 2019 ABQB 906 Date: 20191128 Docket: 161165626S1 Registry: Calgary Between: Her Majesty the Queen Crown - and - James Othen Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.H. Hollins _______________________________________________________ Appeal from the Judgment by the Hon. Judge M.M. Keelaghan on the 9 th day of February, 2018 (Written Decision, Docket: 161165626P1)

[1] This case involves the actions of a Calgary Police Service officer, Constable Othen, during the course of his arrest of Mr.Prince in the summer of 2016. [2] Mr. Prince was visiting Calgary from Sucker Creek in northern Alberta. On July 30, 2016, he was driving north on MacleodTrail in Calgary, just south of Glenmore Trail. He was stopped by two Calgary Police Service (CPS) officers because of an illegiblelicence plate, at which point he jumped out of his vehicle and ran away. Constable Matkar, who had pulled Mr. Prince over, reportedsmelling marijuana at that point. Constable Matkar chased Mr.

Prince into a restaurant and then called for back up, believing Mr. Princeto have gone out the back door of the restaurant. [3] Officers Othen and Humphrey arrived around the back of the building and spotted Mr. Prince hiding in a bush. When theyyelled at him, he started running again and they chased him northbound to the corner of the building. As they rounded the corner of thebuilding, now facing west between Glenmore Trail and the Spence Diamond building, Officers Harris and Durocher had arrived at thesame place from a different direction.

Constable Harris got out of his car with his gun drawn and intercepted Mr. Prince. [4] Constable Harris told Mr. Prince to get down on the ground. Mr. Prince complied. While Mr. Prince was lowering himselfonto his belly with his hands interlocked behind his head as directed, the Appellant jumped on him from behind. He drove his knees intoMr. Prince’s back and ribs and, along with other officers, hit Mr. Prince repeatedly in the head while his arms and legs were being held. [5] Mr. Prince was arrested, handcuffed and put in the back of Constable Matkar’s vehicle.

Constable MacPherson testified toseeing the Appellant puncture Mr. Prince’s neck behind his ear with a car key while Mr. Prince was laying on the back seat of thevehicle. The Appellant has denied this. [6] Mr. Prince suffered broken ribs, a punctured lung, facial bruising and a split lip. He did not know anything about the injurybehind his ear until it became infected some time later, after he had returned to Sucker Creek. [7] On February 8, 2018, Constable Othen was convicted of one count of assault causing bodily harm and one count of assaultwith a weapon.

The trial judge rejected his defence under s.25 of the Criminal Code, finding that the force he used during the arrest wasunreasonable and that he had committed a separate and subsequent assault on Mr. Prince with a weapon. For the reasons that follow, Idismiss his appeal from those convictions. Standard of Review [8] The standard of review applicable on this appeal is as described by Justice Topolniski in R v Wood, 2007 ABQB 503 atparas.12 and 13: When hearing a

summary conviction appeal, this Court is vested with the powers set out in s. 686(1) of the Code. Those powers,normally applicable only to a court of appeal, are granted to this Court by virtue of s. 822(1) of the Code. This Court can allow the appealif it is of the opinion that the verdict is unreasonable, that the trial judge erred in law, or that a miscarriage of justice has occurred.Conversely, even if this Court is of the opinion that an error has occurred, it can dismiss the appeal if it is also of the opinion that nosubstantial wrong or miscarriage of justice has occurred. It is well established that the standard of review on a

summary conviction appeal is correctness when the alleged error relates to aquestion of law. When it relates to a question of fact, the standard is overriding and palpable error. When the alleged error relates to aquestion of mixed law and fact, the trial judge's decision is to be afforded deference unless the alleged error involves an incorrectapplication of an applicable legal standard. If the error of law is inextricable from the findings of fact, the standard of review iscorrectness: Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. [9] The Appellant alleges the following errors of law in the trial judge’s decision: 1. Failing to properly assess the role of a peace officer under s.25 of the Criminal Code (on the assault causing bodily harm charge); 2. Failing to account for s.25 of the Criminal Code in assessing reliability and credibility (on the assault causing bodily harm charge); 3. Failing to apply the proper standard of proof beyond a reasonable doubt in respect of credibility (on the assault with a weaponcharge); 4.

Failing to interpret and apply the correct legal test for circumstantial evidence (on the assault with a weapon charge); and 5. Failing to consider relevant evidence or the absence of evidence, resulting in an unreasonable or unsupportable verdict (on bothcharges). [10] The Appellant has not clearly delineated which grounds are subject to which standard of review so I will address that withinthe discussion on the respective grounds. [11] For the reasons that follow, the Appellants’s appeal from the verdict of the trial judge is dismissed. The Assault Causing Bodily Harm Charge 1.

Failing to Properly Assess the Role of the Peace Officer Under s.25 [12] An assault is the intentional application of force to a person, directly or indirectly, without their consent; s.265(1)(

a) of the

Criminal Code . Assault which causes bodily harm is contrary to s.269 of the Criminal Code . There is no question that all these things happened in this case. The only question is whether the Appellant’s actions were justified under s.25 of the Criminal Code , called the “peace officer defence”. [ 13 ] The peace officer defence recognizes that it is in the public interest to ensure that peace officers can effectively carry out their law enforcement duties, which may necessitate them committing acts that would otherwise constitute criminal offences.

Section 25(8) requires the peace officer to satisfy three tests in order to avail himself of this defence: first that he is engaged in sanctioned legal enforcement or investigation; second that he is authorized to do so and lastly, that he reasonably believes that the offence - here assault causing bodily harm - is reasonable and proportional in the circumstances of the offence or criminal activity being investigated. [ 14 ] The first two requirements are admitted. The Appellant was clearly engaged in an authorized enforcement of the law.

However, the Crown says that it has proven beyond a reasonable doubt that the force used by the Appellant was not reasonable and proportional. [ 15 ] It is important to stress at the outset that, as was expressly recognized by the trial judge, this is not a purely objective test. It is a combination of subjective and objective assessment. Justice Gates described the subjective-objective test for assessing the reasonableness of the force as follows: It is in conjunction with the third element that the Court will examine the particular type or amount of force ultimately used.

This involves a modified objective test: the Court will assess whether the use of force was objectively reasonable in light of the particular circumstances faced by the police officer. As discussed by the Court in Crampton , the particular type of force used may be unnecessary even if the officer had reasonable grounds to use force, generally.

The Court confirmed that whether unnecessary force was used is a question of fact to be determined on the particular circumstances of each case; R v Angstadt , 2015 ABQB 547 at para.45. [ 16 ] At paragraph 52 of Angstadt , Justice Gates reviewed the jurisprudence from other provinces on the peace officer defence and reasonableness of force and summarized the applicable principles as follows, which I adopt:

a) the use of force includes a degree of discretion on the part of the police officer to apply force commensurate with the circumstances he or she confronts;

b) Police actions are not to be judged against a standard of perfection and the use of force involves a permissible range of responses that may be reasonable under the circumstances. The degree of force used is not required to be measured with precision or exactitude;

c) Police work is dangerous and demanding and frequently requires quick responses to emerging situations. As such, a police officer's actions are to be judged in light of these circumstances and not with the benefit of hindsight.

d) A police officer is entitled to be wrong in terms of the amount of force employed if they acted reasonably given the circumstances known at the time. While acknowledging the need to apply s. 25(1) in a liberal and generous fashion given the exigencies of day-to-day police work, care must be taken to avoid defining the scope or reach of s. 25(1) so broadly as to effectively immunize from judicial scrutiny any and all police conduct.

There is, in my view, a very significant public interest in ensuring that the police are held accountable for exceeding the reach of their authority. [ 17 ] I agree with defence counsel that we cannot expect perfection of police officers who are called upon to make very impactful decisions with little time to react, much less analyze, what are often dangerous situations for themselves and others. However, there are legislative and jurisprudential limits on the peace officer defence and for good reason. [ 18 ] R v Nasogaluak , 2010 SCC 6 was an Alberta case in which the trial judge had convicted Mr.

Nasogaluak but found that the unreasonable use of police force in his arrest was a Charter breach, justifying a reduction in sentence. The case involved an officer delivering punches to Mr. Nasogaluak after he had been subdued, resulting in broken ribs and a punctured lung. The Alberta Court of Appeal and the Supreme Court of Canada upheld the trial judge.

The Supreme Court of Canada’s judgment summarizes both the legislation and the rationale therefor as follows: The Crown emphasized the issue of excessive force in its submissions to this Court, arguing strenuously that the police officers had not abused their authority or inflicted unnecessary injuries on Mr. Nasogaluak. But 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 or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

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. That is not the end of the matter. 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 (Ont. 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.

R v Nasogaluak at paras.32, 34 [ 19 ] The Appellant complains that the trial judge assessed his actions in hindsight, without giving sufficient weight to his subjective perspective of these events and how quickly they unfolded in real time. I disagree. She correctly identified the test for

reasonable force under s.25 as having subjective and objective elements and analyzed the evidence carefully and comprehensively, repeatedly reminding herself to avoid the “lens of hindsight”. [ 20 ] In Crampton v Walton , 2005 ABCA 81 , an officer was convicted of aggravated assault in the course of an arrest. Upon forcibly entering the suspect’s home, the officer saw the suspect standing with a steak knife. He was ordered to drop the knife and get on the floor.

He complied but not as quickly as expected so the officer forced him to the floor with his knee in the suspect’s back, leaving him with cracked ribs and a punctured lung. [ 21 ] The Court of Appeal in Crampton upheld the officer’s conviction, saying that the determination by the trial judge that the force used was unnecessary was fact specific and reviewable only for palpable and overriding error; paras.46-48.

This was so notwithstanding that the Court recognized and denounced assessing the police behaviour in hindsight and spoke of making allowances for misjudgments made “in the exigency of the moment”; para.45. [ 22 ] While the defence urged me to see the parallels between this case and cases in which the force was found to be reasonable; R v Dobbs , 2016 ONSC 4957 and R v Jacobson , 2015 BCPC 291 , that cannot be overly persuasive on appeal. The trial judge was not only able but obligated to examine the specific facts before her and apply the law, which I find she did.

The fact that other judges have found otherwise is no more determinative than the fact that yet other judges – as reviewed above – have convicted in similar circumstances. [ 23 ] The trial judge’s application of the peace officer defence to this case was done correctly. Further, there is no palpable and overriding error in her finding that the force used by the Appellant was unnecessary force. 2.

Conflating Reliability and Credibility under s.25 [ 24 ] The second ground of appeal on the assault causing bodily harm charge is that the judge erred in assessing credibility by comparing the testimony of the witnesses to the videotapes of the incident, relying too heavily on the video.

This appears to be a slightly different version of the complaint that there was not enough credence given to the Appellant’s subjective view of the events. [ 25 ] Credibility and reliability are indeed distinct concepts, the former referring to a witness’s intention to tell the truth and the latter to the witness’s ability to tell the truth. [ 26 ] The Appellant’s argument begins with the somewhat unusual proclamation that he is himself an unreliable witness. It is clear from a review of the video evidence of the arrest (taken from various in-vehicle cameras) that the Appellant’s stated belief that Mr.

Prince was not complying with the direction to get on the ground is incorrect. Faced with the video footage, the Appellant says that the differences between and his testimony are explained by the fact that he was misapprehending things in the heat of the moment. In other words, his belief as to what was happening was admittedly wrong but that goes only to his reliability as a witness not to his credibility concerning his subjective belief regarding the amount of reasonable force necessary. [ 27 ] This ground of appeal must fail because it is simply not reflective of the trial judge’s reasoning.

She did agree that the Appellant’s testimony was not reliable. However, her assessment of the Appellant’s credibility was not based solely on the discrepancies between his described perception that Mr. Prince was resisting arrest and the video, which shows that he was not.

Her assessment of the Appellant’s credibility on the subjective-objective test was also based on the fact that the Appellant’s described perceptions were so different from the observations of other officers present. [ 28 ] Defence counsel argues that the trial judge and this court are much father removed from what actually happened than was the Appellant and of course that is true. However, the trial judge not only repeatedly cautioned herself to that effect, she carefully reviewed the evidence of other officers present, particularly that of Constable Harris. Constable Harris was carefully watching Mr.

Prince throughout, having drawn his weapon and having instructed Mr. Prince to get down to the ground. He was sufficiently convinced of Mr. Prince’s compliance to be holstering his weapon before the Appellant jumped on Mr. Prince, which sequence of events was confirmed by other officers present. [ 29 ] Further, the trial judge found as a fact that Mr.

Prince had not, as alleged by the Appellant, turned and walked back towards the Appellant during their pursuit of him, which action the Appellant relied on heavily to explain his heightened anxiety before the assault. [ 30 ] At page 26 of the Transcript of her reasons, the trial judge said: While I am mindful of stressful and fluid nature of the situation described, I find that his evidence is contradicted on crucial points by a constellation of evidence, not the least of which is the audio and video evidence, but also the evidence of Constables Harris, MacPherson and to a lesser extent, Constable Oakes.

While I agree that in highly stressful situations errors in judgment and perception are more apt to be made, the testimony of the Appellant, that he honestly believed that he physically and dynamically took Prince to the ground, stretches the bounds of credulity. [ 31 ] While she did not reference her analysis of the other evidence from other sources again in the last sentence, it is clear that she performed that analysis and that her findings on credibility were based on, as she called it, a “constellation of evidence”. [ 32 ] The trial judge did not conflate reliability with credibility and so no complaint of incorrectness lies in the legal test applied.

Further, her findings on credibility disclose no palpable and overriding error. The Assault with a Weapon Charge

3. Failure to Apply the Proper Burden of Proof Regarding Credibility [33] The Appellant’s third ground of appeal is that the trial judge misapplied the test for assessing credibility set out in R v W(D), (SCC), [1991] 1 SCR 742. As a result, it is said that she failed to require the Crown to properly prove its case beyond areasonable doubt. [34] Constable MacPherson testified that after Mr. Prince had been put in the back of Constable Matkar’s vehicle, he went over tothat vehicle and spoke briefly with Constable Matkar. He moved aside as the Appellant came up to the vehicle.

He testified that he sawthe Appellant open the back door of the vehicle, take a long silver key and dig it into the back of Mr. Prince’s neck underneath his ear.MacPherson says that Mr. Prince groaned loudly. [35] Constable MacPherson did not say anything to the Appellant but turned and left. He felt that the Appellant’s action was“extremely excessive” and unnecessary because Mr. Prince was laying on the back seat handcuffed.

On cross-examination, ConstableMacPherson agreed that he had been mistaken about which ear he saw injured, whether left or right. [36] The Appellant’s complaint is that the trial judge treated the evidence of Constables MacPherson and Othen differently. Heargues that the trial judge failed to give sufficient weight to the fact that Mr. Prince did not know how he got the injury behind his ear(i.e. a lack of evidence supporting the charge) and also gave undue weight to the inconsistencies in the evidence of ConstableMacPherson, who was the eyewitness to the alleged offence.

While described as an improper application of W(D), it is really anothercomplaint about the trial judge’s findings on credibility. [37] The trial judge was very aware of the fact that Mr. Prince could not give any reliable evidence of how he sustained the injurybehind his ear, only becoming aware of it once it had become infected. That did not raise any reasonable doubt for the trial judgeregarding the Appellant’s guilt, in the context of all the evidence before her examined on a W(

D) analysis. [38] Further, she also addressed the fact that Constable MacPherson admitted in cross-examination that the photos of Mr. Prince’sinjury proved that he had been incorrect in his testimony about the location of the injury.

Notwithstanding that inconsistency, she foundhis evidence on the other details of the assault “compelling” and pointed out that Constable MacPherson’s version was also corroboratedby the fact of the injury itself. [39] The trial judge’s assessment of the Appellant’s denial was also informed by her finding that he had returned to his vehicle andretrieved his keys before going to Matkar’s vehicle, a detail omitted from his testimony. At paragraph 224 of her reasons, she says: I am mindful that the accused bears absolutely no burden to prove that he did not commit the offence alleged against him.

However, ifhis testimony contains an explanation which is found to be intentionally misleading on a crucial fact, as I do here, then I may considerthat intentionally false assertion when assessing the weight, if any, that I give to his denials of the offence as I apply the R v W(D)analysis. (para.224) [40] I agree with the Crown’s description of her reasons as rejecting the Appellant’s evidence for these reasons and then, on thebasis of the other evidence at trial which she did accept, finding that the Crown had proven this charge beyond a reasonable doubt.

Thereis no error in her reasoning and the pathway to her verdict is plain. 4. Failure to Apply the Proper Burden of Proof Regarding CircumstantialEvidence [41] The Appellant’s fourth ground of appeal is that the trial judge failed to properly apply the test for using circumstantialevidence to reach a guilty verdict. R v Villaroman, 2016 SCC 33 was an Alberta case in which Mr. Villaroman was charged withpossession of child pornography after illegal images were found on a laptop computer that he had taken in to a repair shop.

The trialjudge convicted on the basis of the evidence available, all of which was circumstantial on the issue of possession. [42] The Court of Appeal in Villaroman reversed this, saying that the trial judge had misstated the test for reliance oncircumstantial evidence. In restoring the trial judgment, the Supreme Court of Canada said that in cases dealing exclusively or largelywith circumstantial evidence, we must be convinced that the accused’s guilt is the only reasonable inference which can be drawn fromsuch circumstantial evidence.

If there are reasonable inferences – albeit not merely speculative inferences – consistent with a conclusionother than the accused’s guilt, then the Crown has not proven its case beyond a reasonable doubt; para.35. [43] In this case, the circumstantial evidence relied on by the trial judge included the fact that the Appellant had his vehicle keys inhis possession, that he went to the vehicle in which Mr. Prince was being held and the fact of Mr. Prince’s injury. Her reliance on theseparts of the evidence is improper, says the Appellant, because it fails to account for the delay in Mr.

Prince discovering the injury behindhis ear and his inability to recall how he sustained that injury. Again, the trial judge was clearly mindful of the nature and limits of thecircumstantial evidence of Mr. Prince’s injuries but accepted that as part of the evidence which convinced her of the Appellant’s guilt. [44] More importantly, this ground of appeal is not well founded because, inter alia, this was not a case of exclusively or evenlargely circumstantial evidence. Constable MacPherson was an eyewitness to the assault.

The trial judge was free to assess hiscredibility, as well as that of other witnesses, including Constable Matkar and the Appellant. As discussed above, there were no errors inthe way in which she did so. 5. Unreasonable and Unsupportable Verdict [45] Finally, on both counts, the Appellant says that the convictions were unreasonable and not supported by the evidence. Areview of the Appellant’s Brief (paragraph 120-121 and 162-163) makes it clear that ground of appeal is based on all the same arguments

regarding all the same evidence canvassed above. That analysis will not be repeated. Conclusion [ 46 ] The trial judge committed no palpable or overriding errors in her legal analysis of this case. Further, her factual findings and in particular her assessments of credibility which played a large

part in the resolution of the charges are entitled to deference. The Appellant’s appeal is dismissed. Heard on the 29 th day of March, 2019. Dated at the City of Calgary, Alberta this 28 th day of November, 2019. M.H. Hollins J.C.Q.B.A. Appearances: James E. Stewart for the Crown Alain Hepner, Q.C. for the Accused/Appellant