R. v. Crowe, 2023 NUCJ 7

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Crowe, 2023 NUCJ 7 Date: 20230306 Docket: 06-21-28 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Ian Crowe __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): Counsel (Accused): L. Lane R. Beeman Location Heard: Date Heard: Iqaluit, Nunavut February 21-23, 2023 Matters: Trial decision in regards to a charge under Criminal Code of Canada, RSC 1985, c C- 46, ss. 266 REASONS FOR DECISION (Delivered Orally) (NOTE: This document may have been edited for publication) DISCLAIMER PAGE Anonymized Judgment Disclaimer :

This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] Corporal (Cpl) Ian Crowe of the Royal Canadian Mounted Police (RCMP) is charged with one count of committing assault on S.K. contrary to

Section 266 of the Criminal Code , RSC 1985, c C-46 . The assault was alleged to have taken place on June 30, 2020, in Sanirajak, Nunavut, where Cpl Crowe was the RCMP detachment Commander. [ 2 ] The Information laying the charge against Cpl Crowe was sworn on August 24, 2021 by Cpl Erik Lieng, a Supervisor with the Major Crime Unit of the RCMP, V Division, in Iqaluit. The Information was sworn following an RCMP investigation into a complaint filed by Constable (Cst) Richard against Cpl Crowe on July 11, 2020. Cst Richard and Cpl Crowe were the two officers who made up the two-person Sanirajak detachment at the time of the alleged incident.

[3] Cst Richard filed his complaint following the June 30, 2020 arrest of S.K. Cst Richard alleged that Cpl Crowe had used excessiveforce against S.K. during the arrest by smashing his head two to three times into the gravel. Cpl Crowe denies the incident took place. [4] The Crown chose to proceed summarily against Cpl Crowe. A three-day trial was held before me in Iqaluit from February 21-23,2023. These are my reasons for decision. II. THE TRIAL [5] Cst Richard, for the Crown, and Cpl Crowe, in his own defence, were the only two witnesses called to give evidence at trial.

TheCrown did not call S.K. to give evidence against Cpl Crowe. The Crown did not tender as evidence any pictures of injuries that may havebeen suffered by S.K. or any medical notes detailing potential injuries. [6] The Crown advised me at the beginning of the trial that S.K. was “likely” in Ottawa and “did not wish to attend” the trial. It is atrite recantation of the adversarial process in Canada to state that it is not for a judge to dictate to the parties what evidence is to be calledat trial.

However, it should be stated that I am confused by the Crown’s decision not to call the alleged victim of the assault to allow fora more thorough recounting of the facts surrounding the charge to be put on the record for consideration and adjudication. [7] With the trial proceeding with only the accused and an opposing witness testifying, I have an obligation to apply the principles ofR v. W.D., (SCC), [1991] 1 S.C.R. 742. The Supreme Court mandates through W.D. that if, having heard all theevidence, I believe the accused’s testimony, I must acquit him.

If I do not believe the accused’s testimony but I am left with a reasonabledoubt about it, I must acquit.

Finally, even if I am not left in doubt by the evidence of the accused, I must still ask myself whether I amconvinced beyond a reasonable doubt of the guilt of the accused based on the balance of the evidence which I do accept. [8] The evidence of the two officers regarding an incident with S.K. in the morning of June 30 was largely consistent and I will not gointo detail: there was a somewhat difficult arrest of S.K., and he was released in the early afternoon on charges of breach of probation,assault, and resisting arrest, with requirements to stay away from house 264 and to have no contact with his spouse who lived there. [9] At approximately 4:10 p.m. on June 30, Cpl Crowe and Cst Richard went to house 264 to give S.K.’s spouse a copy of his releasedocument and house keys.

As Cst Richard went up the outside stairs to knock on the door he saw S.K. in the living room, getting up toleave through the back door. Cpl Crowe went toward the back of the house to confront S.K. Cpl Crowe testified that he had to run a bit toget in front of S.K., who would not stop and then refused to put his hands behind his back. [10] Cpl Crowe and S.K. struggled for one or two minutes before Cst Richard came from behind and grabbed S.K. During that time,Cpl Crowe testified that S.K. grabbed his thumb and pulled it and bent it back, causing significant pain.

Cpl Crowe, in response, used a“pain compliance” technique (digging his thumb into the eye socket) to try to gain control of S.K. Even once Cst Richard was present,S.K. struggled for a few minutes. [11] During that struggle, S.K. ended up on the ground. According to Cst Richard’s testimony, he thought S.K. went to the ground onhis own, to put his arms underneath him, but agreed that in his notes, he said S.K. was “taken to the ground” to get him handcuffed. Heagreed that it was a mistake to answer the question about how S.K. got on the ground without first checking his notes.

Cst Richard didnot recall using a “leg sweep” to get S.K. to the ground. [12] Eventually, the officers got S.K. into the police truck, although he refused to walk, so he had to be dragged and forcibly put into thetruck. Cst Richard went inside the house to speak to the spouse, while Cpl Crowe advised S.K. of his arrest, his Charter rights, andpolice warning.

S.K. was now being charged with resisting arrest, assaulting a peace officer, and two counts of failing to comply with anUndertaking. [13] When Cst Richard came back to the truck, he saw that S.K. had slipped his cuffs to the front and was smoking a cigarette. Hedecided to deal with that when they got to the detachment. Cst Richard parked the truck near the bottom of the ramp to the garage of thedetachment, because the garage door was broken. Unfortunately, S.K. did not give up the lighter when they took him out of the truck; hewas holding it between his cuffed hands and flicking it.

[ 14 ] It is at this point where the accounts of each officer diverge. [ 15 ] Cst Richard testified that there was a struggle getting S.K. up the ramp, he had one arm, and Cpl Crowe had the other. At a point near the top of the ramp (shown in a red circle drawn by Cst Richard on Exhibit 2) S.K. was on his knees (it is not clear how that happened) on the ground and Cpl Crowe suddenly grabbed his head and smashed it face first into the gravel, two or three times. Cst Richard was shocked; he had never seen an officer treat anyone that way.

He told Cpl Crowe to stop, and the two officers dragged S.K. through the garage, past the “sally port” and into a cell. [ 16 ] Cpl Crowe testified that the struggle up the ramp was significant: one officer on each arm stopped working when S.K. anchored himself on the ramp, so they switched to Cst Richard pulling from in front, and Cpl Crowe pushing from behind S.K. At a point near the top of the ramp, S.K. suddenly fell face forward onto the gravel, and Cpl Crowe fell on top of him. He believes Cst Richard did a motion that caused them to fall, and that is when S.K. got a gash on his forehead.

Cpl Crowe recalled seeing S.K. “peel his head off the gravel”. [ 17 ] Cpl Crowe was very concerned about the cigarette lighter that S.K. still had, and which he had been flicking while cuffed when the officers were nearby. While on top of S.K. on the ground, Cpl Crowe tried to reach underneath him to get the lighter; he was swearing at S.K. and scraping his hands by digging into the gravel.

After a few minutes, Cst Richard said something like, “that’s enough!” and picked S.K. up. [ 18 ] At trial, Cst Richard implied that the head smashing had been observed by a person on an ATV, who stopped at the bottom of the ramp while it was going on. He also said there was blood visible in the gravel for several days after the incident. It appears there was no effort to find the potential witness, and Cst Richard did not take any photographs of the blood. [ 19 ] The two officers can be seen on video dragging S.K. through the garage and into a cell.

There was another struggle in the cell because S.K. had twisted his sweater into his cuffs and the officers had to cut that clothing off. During that struggle, Cpl Crowe can be seen pressing his knee forcefully into S.K.’s back to hold him still. [ 20 ] Cpl Crowe removed the mattress from the cell on his way out of the cell. He explained in his evidence that he was worried that S.K. might somehow misuse the mattress, as he had misused some toilet paper he was given on his first arrest earlier that day.

The cigarette lighter was never accounted for in the trial. [ 21 ] Cpl Crowe called Cst Richard in at about 8:30 that same night to ask S.K. whether he wanted to go to the Health Centre to be checked out, but S.K. declined. It is reasonable for the defence to suggest that if S.K. had been taken to the Health Centre, he may have given an explanation of any injuries which would have been available at this trial to assist in my decision. Cpl Crowe would likely be aware of that possibility. [ 22 ] Both officers made contemporaneous notes of their interactions with S.K. that day, as they are required by law to do.

In addition, Cpl Crowe wrote up a five page “General Report” of what happened and completed it shortly after midnight on July 1. Cst Richard wrote his own “Supplementary Report” of his activities, that was completed July 2 at about noon, after he had read Cpl Crowe’s General Report. [ 23 ] The General Report talks about a struggle on the ramp but does not talk about S.K. falling on the gravel. Cpl Crowe explained that this was because the injury was caused by S.K.’s own actions and was not important to put in his report.

None of the General Report, Supplementary Report, or Cst Richard’s notes refer to the head smashing incident that he testified to. [ 24 ] Although Cst Richard said it was his practice to take photographs of accused persons with any injuries and he had in fact photographed S.K. earlier in the day during the first arrest, he did not take any photographs in the evening, after the alleged incident on the ramp. III. JULY 11

[ 25 ] On July 11, 2020, the two officers went on a fishing trip to a lake 45 minutes away from Sanirajak with Cpl Crowe’s wife and Cst Richard’s friend, a wildlife officer. They had earlier checked that the satellite phone had service out there and planned to stay the whole day. Although Cst Richard had lived in the community for over three years, he had never had the opportunity to go out on the land nearby because the detachment has only two officers. [ 26 ] After everyone had caught at least one fish, one of Cpl Crowe’s dogs began to have trouble breathing.

Cpl Crowe and his wife were very worried, and decided they had to return to town as soon as possible. As they were leaving, Cpl Crowe asked Cst Richard to leave the lake by 1:30. This appears to have angered Cst Richard, who returned to Sanirajak immediately and then reported to their superior that Cpl Crowe had used excessive force during the arrest of S.K. eleven days earlier. IV.

DECISION [ 27 ] Both officers have a legal duty to take accurate and complete notes of criminal investigations. [ 28 ] The Crown argued that it is obvious why Cst Richard would leave the incident on the ramp out of his notes: because it was a two- man detachment, and he did not want to get in trouble with his commander. But at one point in his evidence when asked why he did not mention the incident in his notes, Cst Richard said it was because he had read Cpl Crowe’s General Report and it was not mentioned there.

He did not want Cpl Crowe to read his notes and see that they were not on the same page regarding the alleged assault. The problem is Cst Richard’s notes were completed (as required) during his shift on June 30, the General Report was not completed until after midnight on July 1. [ 29 ] The Crown also argued that there is evidence that Cpl Crowe was enraged at S.K., and that is why he drove his forehead into the gravel. The swearing and the “knee punch” in the cell are evidence of a loss of temper.

But it was agreed at the start of the trial that the force used in the cell was not improper and it would be important to keep S.K. still while the officers were using scissors to cut off his clothing. [ 30 ] The Crown also argued that it makes no sense that Cst Richard would decide to lie on July 11, 2020, about Cpl Crowe’s actions on June 30, 2020, so his report on that day (and thus at trial) must have been truthful. I find the whole incident with the fishing trip problematic.

I do not understand why a request to come back to the community earlier than planned, after Cpl Crowe had to return unexpectedly, would put Cst Richard into such a rage that he rushed home immediately to file a report. In that kind of rage, I do not know what he might have done. I do find it odd that Cst Richard said he did not think his supervisor had the right to tell him what to do. [ 31 ] In accordance with the law in W.D . , cited above, both parties agree that if I believe Cpl Crowe, I must find him not guilty of assaulting S.K..

If I am not sure who to believe, I must also find him not guilty, because the Crown has the burden of proof beyond a reasonable doubt. Finally, even if I disbelieve Cpl Crowe, I must look at all of the evidence and decide whether the Crown has satisfied me, beyond a reasonable doubt, that Cpl Crowe committed the offence of assault. [ 32 ] I find Cpl. Crowe came across as earnest on the stand. I found his testimony to be truthful and worthy of belief. His description of the events of the incident was plausible. The Crown, through its cross examination, did not discredit Cpl.

Crowe or cause me to doubt the truthfulness of his answers. Accordingly, I must acquit in accordance with the principles of W.D . [ 33 ] Going further, I found Cst Richard’s evidence problematic. I am troubled that there were no photos taken of S.K. after the alleged assault, even though Cst Richard testified it was his practice to do so in such circumstances. I find it problematic that Cst Richard’s notes completed shortly after the second arrest make no mention of the alleged assault. I am not convinced that Cst Richard was reticent to put the account into his notes for fear of reprisal.

I also find it suspicious the complaint about Cpl Crowe was not made for several days, and only after an argument about an order from his commanding officer to come back from a fishing outing. On the second ground of W.D. , I would also acquit. [ 34 ] S.K. would have been able to confirm one version of events, or the other. Without the evidence of S.K., with no photos of injuries, no other witnesses to the event, and no medical report, I am not able to decide beyond a reasonable doubt that Cpl Crowe committed the

offence, and he must be acquitted. I find Cpl Crowe not guilty of assault on S.K. on June 30, 2020. Dated at the City of Iqaluit this 6th day of March 2023 ___________________ Justice S. Charlesworth Nunavut Court of Justice