Her Majesty the Queen - v. -, 2016 SKPC 167

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 167 Date: December 13, 2016 Information: 24444866 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mohammed Khan Appearing: Mr. William Burge For the Crown Mr. Aaron Fox, Q.C. For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Mohammed Khan, is charged with common assault. It is alleged the incident occurred on May 2, 2015, at Estevan. At the time, Mr. Khan was employed as a probationary constable with the Estevan Police Service. The issue is whether the Crown has proved the charge beyond a reasonable doubt. THE EVIDENCE

[ 2 ] The first witness for the Crown was Ms. Jamie Bussian. On May 2, 2015, she was working as the manager at Boston Pizza in Estevan. Her shift was from 5:30 p.m. until 1:30 in the morning. During part of this shift, she was in her office, monitoring some cameras in and about the building. She noted six or seven men gathered at the front door and went out the front door, to the left of the building, to where some dumpsters were located. She was suspicious that this was to engage in some drug activity. She immediately called Estevan Police.

About two or three minutes later, a single officer arrived, and she met him at the front door. She advised him as to what she had seen. Together, they approached the dumpster area. The officer was the accused, Mohammed Khan. [ 3 ] At the dumpsters, she could see that there was a group of people present. The accused, officer Khan, hollered “freeze police”. Everyone scattered. She heard officer Khan holler “Freeze police. Stop or I’ll shoot”.

She went back inside the restaurant. [ 4 ] A short while later, she saw another police vehicle, an SUV with its emergency lights on out in front of the restaurant. [ 5 ] Under cross-examination, she indicated that she was suspicious of drug activity, particularly cocaine. She advised the police of this. She also advised that officer Khan was in full uniform. She advised that she heard officer Khan say stop or I’ll shoot. She advised however, that she never saw that any weapon had been drawn. [ 6 ] Donovan Gibson testified that he is 22 years of age. He is 5'11 inches tall and weighs approximately 160 Ibs.

He has been fairly steadily employed in the oil field and the mines near Estevan. [ 7 ] On the night in question, he and his friend Dave Spelman had a lot to drink, and then went to Boston Pizza. They continued drinking there. He advised that over the course of the evening, he probably had 15 to 20 beer. He said he was quite drunk. [ 8 ] During the course of the evening, he and Spelman decided to go outside for a smoke. There was a larger group going outside at that time. The entire group turned to the left.

He said they walked maybe 10 feet from Boston Pizza. [ 9 ] While he was smoking, he saw the cops flashlight, and heard the officer say: “Everyone stay still.” Everyone, including him, ran. He heard the officer say: “Stop or I’ll shoot.” He said he had only ran about 15 feet. He stopped, and the officer “took him down”. [ 10 ] He indicated that he was laying on his stomach on the pavement and the officer had his knees in his back. While he was on the ground, he kind of remembered being cuffed. He said that happened really quickly.

Then the officer pushed his face into the ground three times, and said “quick resisting.” He indicated that by this time he had already had the cuffs on, and was not resisting at all. The officer, by these pushes, pushed his head and face into the ground or pavement. He had a number of marks or injuries to his face from the pavement. Then another officer showed up, and he went with her to the Estevan Police Station, where he was put in the drunk tank. [ 11 ] Under cross-examination, Mr. Gibson admitted that he had a lot to drink, and was quite intoxicated.

He admitted that his ability to recollect was affected because things happened so quickly, and because he was pretty drunk. He assumed that the individuals went to the dumpster area to use cocaine. He said it was stupid that he ran from the police officer. He heard the officer tell him to stop a number of times, but he continued running. He later agreed that he ran a lot more than 15 feet, before the officer took him to the ground. He agreed the officer told him to get down on the ground, as the officer approached.

He told defence counsel that all the marks on his face were scrapes that were incurred after his hands were cuffed behind his back. The scrapes did not occur from being tackled. [ 12 ] He did agree that he told Sergeant McMillen, in a statement, that the accused “Officer Khan, did not have to throw him down so hard”. He said he was “referring to everything”. He reiterated that the injuries were not from being thrown down, but from being pushed into the pavement. [ 13 ] Sergeant Tyler McMillen testified that he has been with the Estevan Police Service for 15 years.

On the night in question, he was the shift supervisor. On the radio, he heard the dispatch to Boston Pizza to deal with suspected drug activity. Constable Nicole

Elliott was with him in the car. It took them approximately 90 seconds to get to Boston Pizza. On the way, and again over the radio, they heard that Constable Khan was booked out at Boston Pizza. Later, they heard the people running. [ 14 ] He testified that he turned into the parking lot at this strip mall. He could not see the other police vehicle at this time. Constable Elliott then noted two people close to the eye clinic. He drove that direction. He stopped close to them, and the vehicle’s headlights were upon them. He and Constable Elliott immediately exited the vehicle and approached the pair.

He saw an individual laying on his stomach. That individual later turned out to be Donovan Gibson. The accused, Mohammed Khan was on Mr. Gibson’s back in the head and shoulder area. He heard Constable Khan tell Mr. Gibson at least once, and perhaps more than once to give him his hands, or put his hands behind his back. When he did so, Officer Khan put the handcuffs on. Right after the handcuffs were on, Mr. Gibson was not doing anything. At that time, Constable Khan said words to the effect of: “There you go. That’s what you get for running from the police.” Officer Khan then pushed Mr.

Gibson’s head and face into the pavement. The sergeant told Constable Khan that he (the sergeant) would take over. Constable Khan resisted this and pushed Gibson’s face into the pavement two more times as the sergeant attempted to intervene. The sergeant then assisted Mr. Gibson in getting up and noticed a cut on Mr. Gibson’s eyebrow and some scuffs on his face. The sergeant was adamant that all of the pushes occurred after the cuffs had been placed on Mr. Gibson. [ 15 ] On cross-examination, the sergeant testified it was approximately 100 yards from the dumpster site to where they located the two individuals.

He said that Constable Khan followed the standard procedure to put the cuffs on Mr. Gibson. That is, he directed Gibson to put his hands behind his back or to give him his hands and the cuffs were applied. [ 16 ] The sergeant could not be certain as to his exact words to Constable Khan. He may have said he would take over, or he may have said I’ve got him. He was certain that Khan said something like: “How do you like that. That is what you get for running from the police.” He was quite certain that Khan pushed Gibson’s face into the pavement three times.

He admitted he did not ask Khan what he meant by his statement to Gibson. [ 17 ] The sergeant also agreed that when he spoke to him, Mr. Gibson complained that the officer was aggressive and had taken Gibson down so hard. [ 18 ] Constable Nicole Elliott testified that she has been with Estevan Police Service for seven years. She advised that on the night in question, she was in the sergeants’s vehicle, and they were dispatched to the Boston Pizza parking lot. She was riding in the passenger seat. As they approached, she saw two bodies on the ground by the eye clinic.

She directed the sergeant accordingly, and he drove to that area. They stopped and got out. The headlights were on the two individuals. Those individuals were Mr. Gibson and Constable Khan. As they approached, Khan was laying on top of the male. Khan directed the male to put his hands behind his back. The male did so, and Khan applied handcuffs. Khan then had his right arm at the base of Mr. Gibson’s head. Right after applying the cuffs he did three quick shoves and each time pushed Mr. Gibson’s face into the pavement. She testified that Khan said words to the effect of: “How does that feel.

That’s what you get for running from police.” She said Sergeant McMillen was attempting to intervene. Khan resisted this, and McMillen told him three times. She and McMillen then assisted Gibson in getting to his feet. At that time, she noticed blood on his eyebrow and chin. [ 19 ] She stated that the pair were right in front of her, at the time Gibson was cuffed. As soon as the cuffs were on, Khan did the three pushes. She saw no resistance at this time from Gibson. She indicated that Khan had his right forearm near neck area of Mr. Gibson and had his left hand placed on his right forearm.

He then used both hands to push Mr. Gibson’s head and face down. [ 20 ] Later, at the station, she took pictures of Mr. Gibson and his injuries. [ 21 ] In cross-examination, defence counsel produced a google map of the area. He had Constable Elliott label various business establishments, and approximately where they located Mr. Khan and Mr. Gibson. She reiterated that when they pulled up, Khan did not yet have the cuffs on Gibson. That occurred immediately after they pulled up. She heard Khan direct Gibson to put his hands behind his back. She couldn’t recall if he asked this once or more than once.

She was asked about a previous statement where she indicated that Khan gave this direction at least a couple of times. She accepted that this statement would be accurate. [ 22 ] She agreed that Gibson told her that Khan took him down aggressively. She didn’t recall if Gibson specifically complained about his face being pushed down. She stated that Gibson said he took me down aggressively, but didn’t go into detail.

[ 23 ] She too, was unsure of Sergeant McMillen’s exact words to Constable Khan when he was on top of Gibson. He may have said get back, or get up. [ 24 ] Mohammed Khan testified in his own defense. He is 30 years of age. He is 5'8 inches tall and weighs approximately 165 Ibs. He testified as to his working experience and education prior to entering police college. After five months in police college, in January 2015, he entered the Estevan Police Service as a probationary constable. On May 2, 2015, he was still on probation. [ 25 ] On May 1 and 2, he was on the 6:00 p.m. to 6:00 a.m. shift.

He was in full uniform and by himself in a marked vehicle, at which time he was dispatched to Boston Pizza. He said he met the manager at the front door, and they approached the dumpster area. At this time, he used the radio to request assistance. [ 26 ] As he walked behind the dumpster, he drew his flashlight. He saw multiple people. He hollered: “Police. Everyone stay where they are”. Everyone scattered. Gibson ran by him and ran back towards Boston Pizza through the parking lot. Khan gave chase. He said that during this time he accidentally said: “Stop or I’ll shoot.” However, he didn’t draw any weapon.

He kept up with the chase of Mr. Gibson. On a number of occasions he hollered stop, you are under arrest. [ 27 ] He testified that Gibson approached the edge of the lot and the fence. At that time, Gibson stopped and turned to face the officer and squared up as if ready to fight. The officer decided to take him down and did so. He said Mr. Gibson was resisting. He used his elbow and had Gibson’s head pinned to the ground. At that time, Sergeant McMillen and Constable Elliott arrived. He told Mr. Gibson to put his hands behind him and he did that. Khan put the cuffs on.

He said he then stood up and said this is what happens when you run from a police officer. Sergeant McMillen said a number times “get up get up”. However, he couldn’t get Gibson up. Then McMillen pushed him back. He testified that he thought McMillen was telling him to get Gibson up. However, he couldn’t do that. He denied that he pushed Gibson’s face into the pavement. He admitted that Gibson gave no resistance after being cuffed. He agreed he said this is what happens when you run from police. However, he said that he meant that things get difficult for everyone when you run from police.

This didn’t have to happen or unfold this way. He denied that he had any intention to punish or apply extra force to Mr. Gibson. He denied that he pushed Gibson’s face into the pavement. [ 28 ] Mr. Khan testified he is no longer with Estevan Police Service. His probation was terminated. He has since moved to Ontario and is assisting his parents. [ 29 ] Under cross-examination, Mr. Khan admitted that he didn’t see anyone who had any drugs. When he told everyone to stay where they were, he was intent on holding everybody until back up arrived.

He was holding them for questioning and investigation. [ 30 ] He testified that after the chase, he told Gibson to get on the ground. He gave him a brief chance to do that. When Gibson did not immediately get on the ground, the officer then took him down. He agreed he got the cuffs onto Gibson fairly quickly, and that once the cuffs were on, that Gibson was no threat. Also, at that time McMillen and Elliott were there for back up. He said he expected Sergeant McMillen to help get Gibson up. He agreed that it would be completely unnecessary for him to push Gibson’s face into the pavement at that time.

Again he denied that he did that. Under further cross-examination, he offered a theory that as he was trying to help Gibson up, he may have dropped him, and McMillen and Elliott may have misinterpreted this as him pushing Gibson. ARGUMENT AND ISSUES [ 31 ] I greatly benefited from the very detailed and thorough argument made by both counsel, and I thank them for that. As a result of that argument, matters were significantly clarified, and issues reduced and simplified. [ 32 ] I suggested to the prosecutor, Mr. Burge, that the Crown could advance two arguments or two theories leading to a conviction.

Firstly, he could argue that Constable Khan had no legal basis for the arrest of Mr. Gibson, and thus the take down and arrest constituted an assault. Secondly, he could argue that Constable Khan utilized gratuitous or retributive violence following the arrest, and this constituted the assault. I questioned whether he was advancing either of those theories or both. Mr. Burge advised that if

the Crown’s case was based upon the first theory, being the unlawful arrest, the Crown wouldn’t be proceeding with the prosecution. Further, that the Crown’s argument was entirely based upon Constable Khan using gratuitous or retributive violence against Mr. Gibson. [33] Mr. Fox, for the accused, spent some time speaking of the events of the chase leading to the arrest. He argued that the officerwas entitled to use reasonable force to effect the arrest. He referred to the Saskatchewan Court of Appeal decision in R v Power, 2016SKCA 29.

During that argument, he conceded that if Constable Khan applied any gratuitous violence or retributive violence followingthe placement of the cuffs, that use of force would not be reasonable. [34] As a result of these arguments, I take Mr. Burge at his word, and decline to do any detailed analysis as to whether ConstableKhan had grounds to arrest Mr. Gibson. I conclude he did have ground for arrest, and there was no assault by the takedown, the arrest orthe placement of the cuffs on Mr. Gibson.

I will simply focus upon and decide whether Constable Khan utilized gratuitous violence orretributive violence following the placement of the cuffs. [35] I quickly note that Mr. Gibson, Sergeant McMillen and Constable Elliott all testified that Constable Khan had completed thearrest, and had the cuffs on Mr. Gibson. At that time, Mr. Gibson was laying on his stomach on the pavement. He was not resistingfurther, and was no threat. All three then testified that Constable Khan pushed Mr.

Gibson’s face down and into the pavement, and thathe said words to the effect of: “That’s what you get for running from the police.” If I accept this evidence, there can be little doubt thatthis is gratuitous or retributive violence, and on the basis of R v Power, the charge would be made out. [36] Of course, Constable Khan denies that he pushed Mr. Gibson’s face into the pavement, and he is testified accordingly. As aresult, in my view, this case comes down to a WD kind of analysis, and a determination as to whether the Crown has proved the chargebeyond a reasonable doubt.

WD ANALYSIS AND DECISION [37] In the case of R v PNM (1995), (SK CA), 141 Sask R 221 (CA), Mr.

Justice Tallis summed up the WDinstruction as follows: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [38] In the case of R v Berg, 2016 SKPC 55, I referred to the above mentioned quote and then added the following: Other case law makes it clear that the process does not involve simply choosing between the accused’s evidence or some other piece ofthe prosecution evidence.

There must be a considered and reasoned basis for picking certain evidence over other evidence. The case lawalso makes it clear that the four questions, enunciated by Mr. Justice Tallis, are not water tight compartments. One person’s evidence isnot considered in isolation, but in relation to the whole of the evidence. In addition, there may be considerable overlap. As a result,reasons for rejecting some evidence may be closely related to or indeed the same reasons for acceptance of other evidence. [39] For the following reasons, I have determined that I cannot accept Constable Khan’s denial of having pushed Mr.

Gibson’sface into the pavement, and do accept the Crown evidence. [40] Firstly, in my view, Mr. Khan’s entire approach to this incident showed some real inexperience, and indeed naivete. I wouldconclude that this inexperience and naivete led to a real sense of frustration as the incident unfolded, and the constable took thatfrustration by an assault upon Mr. Gibson.

[ 41 ] Constable Khan began by approaching the dumpster area on his own. It was dark and this area was somewhat sheltered and poorly lit. He was advised that at approximately six to eight individuals may be back there, and engaged in drug activity. It seems to be that under these circumstances, he was very ill advised to go in there on his own. In my view, he was fortunate that no one turned on him, and he was not the victim of some violence. [ 42 ] He told everyone to freeze, and testified that he was intent on holding everybody there for investigation until back up arrived.

It is very questionable whether he was entitled to do that. [ 43 ] Everyone scattered and he then hollered “stop or I’ll shoot”. Once again, this appears to be an ill advised step, and somewhat reminiscent of a Hollywood movie. Undoubtedly, as everyone fled, there would be some considerable frustration. He was then involved in a considerable chase where he directed Mr. Gibson to stop on a number of occasions. In the end, he aggressively took Mr. Gibson down.

I conclude that his frustration and aggression continued immediately following the placement of cuffs. [ 44 ] Secondly, by all accounts, including his own, after placement of the cuffs, Constable Khan said something to the effect of: “That’s what you get for running from police.” He attempted to explain that events need not have turned out or transpired in this fashion. They did occur in this fashion because he ran. This explanation, even if I accepted it, seems odd to me. It seems to me that he would be lecturing Mr.

Gibson about running and the consequences of his actions immediately following a lengthy chase and aggressive take down. Moreover, his explanation is not entirely consistent with the words used. Unfortunately a common act of violence by pushing one’s face into the pavement is more consistent with the actual words used. [ 45 ] Thirdly, Mr. Fox argued that Mr. Gibson did not complain about having his faced pushed into the pavement. Rather, he said that he was aggressively taken down. In my view, most lay people do not finely divide and compartmentalize events in the same fashion as lawyers and judges do.

According to my notes, when Mr. Fox cross-examined Mr. Gibson, Mr. Gibson said he was “referring to everything”. He also said that all of the scrapes on his face were incurred after being cuffed and not from being tackled. Mr. Gibson’s evidence on these points was not inconsistent with the police officers. Rather, in my view, it was entirely consistent. [ 46 ] Fourthly, and perhaps most importantly, two experienced police officers testified in this matter. Their evidence is consistent. Neither officer was shaken in cross-examination.

In my experience it is not easy for police officers to testify against another police officer. However, both officers did so and their evidence is believable. Both said they saw the accused push Mr. Gibson’s face into the pavement three times. There is no reason why I would not believe them and accept this as fact. [ 47 ] For all of the above mentioned reasons, I accept the evidence of the Crown witnesses that Constable Khan, having already placed the cuffs upon Mr. Gibson, pushed Mr. Gibson’s face into the pavement on more than one occasion. At that point, Mr.

Gibson was not resisting and could no longer be a threat to anybody. The inescapable conclusion is that this was a gratuitous or retributive violence on the part of Constable Khan. I am satisfied beyond a reasonable doubt that the Crown has proved the charge and find Mr. Khan guilty of the charge of assault. Dated at the City of Estevan, the Province of Saskatchewan this 13 th day of December 2016. ____________________________ Kovatch, J