R. v. Rahnumah Date:, 2015 BCPC 227

Citation: R. v. Rahnumah Date: 20150520 2015 BCPC 0227 File No: 13586-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AHMAD ALI AMID RAHNUMAH EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: D. Pruim Counsel for the Defendant: M. Nohra Place of Hearing: Vancouver , B.C. Date of Hearing: May 20, 2015

Date of Judgment: May 20, 2015 Introduction [ 1 ] THE COURT: The accused is charged with assaulting James Peters contrary to s. 266 of the Criminal Code . During the trial, evidence was received from several witnesses. A DVD was filed as was the statement of the accused and some other admissions.

The allegations arose in the context of the accused performing his duties as a security officer employed by Genesis Security and contracted to DVBIA. [ 2 ] The issue to be determined is, does the evidence raise a doubt in that -- does it raise a possibility that the accused was legally justified in using force as observed in the video?

Stated another way, does the evidence prove beyond a reasonable doubt that the accused applied force without lawful justification? [ 3 ] It must be remembered that the onus is and remains throughout on the Crown to prove the case against the accused beyond a reasonable doubt and the accused does not bear any onus. Facts [ 4 ] On October 6, 2012, the accused was working as a security officer tasked with the protection of businesses and persons at the Pacific Centre Mall in the City of Vancouver, Province of British Columbia. At that time, the accused spotted a person known to him as Mr. Peters.

The accused was familiar with Mr. Peters as he had dealt with him previously and it was the accused's perspective that Mr. Peters was a known and active shoplifter. [ 5 ] The accused watched Mr. Peters who was on a motorized wheelchair. He watched as Mr. Peters entered various businesses and, at one stage, the accused saw Mr. Peters enter a store, select three pairs of sunglasses, and conceal the sunglasses. Mr. Peters was then followed by the accused as he left the store. It became clear to the accused that Mr. Peters had spotted him. [ 6 ] Mr.

Peters eventually entered the Aritzia store and tossed the sunglasses under a clothing rack. The accused approached Mr. Peters who tried to leave in his wheelchair. It was explained to Mr. Peters the reasons for his stop. Mr. Peters directed threats at the accused such as that he, the accused, would be killed. [ 7 ] During the interaction with Mr. Peters, the accused attempted to calm him down. These efforts were unsuccessful so the accused removed his handcuffs. He told Mr. Peters to put his hands in front of him or it would get ugly. He told Mr.

Peters to stop being, in his words, "a dick" or he was going to throw him on the ground and cuff him that way. [ 8 ] Concerned about the position that Mr. Peters was in and those close to him, the accused began to escort Mr. Peters from the Aritzia store. At this stage, Mr. Peters continued to direct threats at the accused. [ 9 ] As they left the store, it appeared that the wheelchair operated by Mr. Peters would lurch and speed away from the accused. The accused told Mr. Peters in a loud voice to turn it off. This was repeated twice. Mr.

Peters drove his wheelchair across the hall and turned it upon reaching a far wall. At this stage, the accused had two other colleagues with him. Accordingly, there were three security persons and Mr. Peters. [ 10 ] Once against the wall, the accused could be heard saying words to the effect, "I will throw you on the ground and fuck you up." As the accused is leaning in towards Mr. Peters, Mr. Peters draws his left hand and balls his hand up in what appears to be a fist. The accused responds by grabbing Mr.

Peters and pulling him from the wheelchair and bringing him to the floor. [ 11 ] I find the accused's actions in this regard to be lawfully justified. First, he had the authority to arrest Mr. Peters pursuant to s. 494 of the Criminal Code . This is because he found Mr. Peters committing an offence in relation to property over which the accused was authorized to protect. Moreover, the threats received by the accused constituted grounds for an arrest pursuant to s. 494 . [ 12 ] I also find that the force used at this stage was reasonable.

If I am incorrect, the actions of Peters were aggressive actions including aggressive threatening verbal comments, the pulling of his hand back, and the lack of cooperation all justifying the use of force based on a subjective reasonable belief that Mr. Peters was about to assault the accused. [ 13 ] Once Mr. Peters was on the ground, the accused dragged Mr. Peters away from his wheelchair. He then leaned over Mr. Peters and shouted at him to get on his chest, "You're so stupid." He would then reach in towards Mr.

Peters who would reach out and knock at the accused's hands. [ 14 ] What follows is the accused repeatedly telling Mr. Peters to get on his chest. At this stage, the accused is standing and mobile and, at times, outside of the arms' reach of Mr. Peters. In contrast, Mr. Peters is laying on his back and was immobile given the fact that he is missing a portion of his leg. At one stage, the accused drives or drops his knee onto Mr. Peters. This occurs at least six times. The video clip ends with Mr.

Peters remaining on his back with the accused standing over him. [ 15 ] Throughout and in the immediate area were two other security officers. They were also joined by a uniformed security officer. There were also multiple civilians in the area. Constable Prasad was the first officer to arrive. He described Mr. Peters as still lying on the floor and not appearing to care. [ 16 ] A statement was taken from the accused wherein he stated he felt threatened and he was worried Mr. Peters would escape. These comments and concerns were reasonable in the circumstances leading up to Mr.

Peters first being placed on the ground. He also acknowledged in his statement of getting caught in a childish back-and-forth power struggle.

Position of the Parties [ 17 ] Crown argues the use of force was excessive and not authorized. In support, Crown relies primarily on the video and the accused's statement. [ 18 ] The defence argues the accused was lawfully justified in using force and that the force used was not excessive. Defence counsel relies on s. 494 of the Criminal Code , s. 25 of the Code, s. 26 of the Code, s. 27, and s. 34. [ 19 ] In considering all of the circumstances, I agree the accused had lawful authority to arrest and, therefore, apply force to Mr. Peters. Despite this, the accused does not have the unlimited power to use force.

He may only use as much force as was reasonably necessary in the circumstances. [ 20 ] In determining how much force is reasonably necessary, I find R. v. Nasogaluak , 2010 SCC 6 , to be of assistance. In this regard, I must consider the principles of proportionality, necessity, and reasonableness. I have also considered Berntt v. The City of Vancouver , 1999 BCCA 345 , and the guidance found therein by Madam Justice Southin. [ 21 ] Despite the very able submissions of defence counsel, I am satisfied the force used when Mr. Peters was on the ground was excessive in the circumstances.

I arrive at this conclusion based on the following: 1. The accused throughout was aggressive and escalating in his tone and response. 2. Once Mr. Peters was on the ground, the accused did not have to engage him. Rather, he could have stood two feet away and waited for the police. These are actions which he ultimately took only after the knee drops and knee strikes. 3. While Mr. Peters was on the ground, he did not represent or present a viable threat to the accused, nor did he present a viable or realistic threat of escape.

He simply laid there when left untouched. [ 22 ] In closing, I appreciate that persons authorized to use force are not expected to operate with perfection. However, in this case, it is clear the accused lost his temper and, in the misguided belief he had to further control Mr. Peters, he used force that was excessive in the circumstances and not justified or necessary given that Mr. Peters was just laying on the ground. [ 23 ] I, therefore, find that Crown has proven the accused guilty beyond a reasonable doubt and I find him guilty of Count 1. [REASONS FOR JUDGMENT CONCLUDED]