R. v. Kane Date:, 2011 BCPC 161

Citation: R. v. Kane Date: 20110708 2011 BCPC 0161 File No: 174872-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH PAUL KANE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: T. Iandiorio Counsel for the Defendant: G. J. Harris Q.C. Place of Hearing: Surrey , B.C. Dates of Hearing: November 8, 9, 2010; January 4, 5, 6, June 27, 2011 Date of Judgment: July 8, 2011 (Delivered at Abbotsford, B.C.) Introduction [ 1 ] The Accused Joseph Paul Kane is charged with assaulting the Complainant Bryan Anthony Pecchia contrary to

section 266 of the Criminal Code , arising out of an incident which occurred in Surrey, B.C. on January 14, 2008. At all times material to this charge, the Accused was a Constable with the Royal Canadian Mounted Police and is a member of the Surrey Detachment. The offence is alleged to have occurred while the Accused was on duty and while he and two other officers attended at a motor vehicle stop. [ 2 ] The Crown alleges that the Accused was not acting within the scope of his duty when he assaulted the Complainant, or alternatively that he used excessive force against the Complainant.

The Accused takes the position that any physical contact which he had with the Complainant was both necessary and reasonable and that his conduct is sanctioned by

section 25 of the Criminal Code . [ 3 ] The Crown called seven witnesses to prove its case: the Complainant, the two other police officers who were present at the scene of the alleged offence, two civilian witnesses, the Complainant’s dentist and an expert witness in the use of force by police officers. The

Accused testified on his own behalf, as well as an expert witness for the Defence on the use of force by police officers. Following are the facts as I find them, a

summary of the applicable law and my analysis applying the law to those facts. Facts (

a) Initial stop of the vehicle [ 4 ] On January 14, 2008, Constable Steve Lachapelle of the Surrey Detachment of the Royal Canadian Mounted Police was on duty, driving a marked police vehicle and working a night shift. Earlier in the evening he had been dispatched to respond to a complaint at a service station at the intersection of 108 th Avenue and 160 th Street and as result of that call he was looking for a red Saturn automobile. He drove to the neighbourhood where the registered owner of the vehicle lived and saw the vehicle.

The registered owner of the vehicle had two outstanding warrants for his arrest so Constable Lachapelle decided to stop the vehicle for that reason, and also because the vehicle was not displaying a rear license plate. The vehicle was stopped near the intersection of 109A Avenue and 160 th Street in Surrey. [ 5 ] After pulling the vehicle over and informing his dispatcher, Constable Lachapelle dealt with the driver of the vehicle, Bradley Whelan, who was unable to provide a driver’s license.

The Complainant, Bryan Pecchia, was the only passenger in the vehicle and he was unable to provide a driver’s license either. Although he was alone at the time of the initial stop, Constable Lachapelle testified that he had no concerns for his safety. The two men in the vehicle were cooperative. Neither one of them was the registered owner of the vehicle. Constable Lachapelle detected the odour of freshly burned marijuana in the vehicle, but did not observe any smoke.

He testified that neither of the two occupants of the vehicle appeared to be impaired. [ 6 ] A second police officer, Constable Timothy Cucheran, arrived and Constable Lachapelle told Constable Cucheran that he believed that he had reasonable and probable grounds to arrest the two for possession of marijuana, but he only intended to arrest the driver. Constable Cucheran asked Mr. Whelan to step out of the vehicle and arrested and handcuffed Mr. White and took him to Constable Lachapelle’s vehicle. While Constable Lachapelle was dealing with Mr.

Whelan in police cruiser, the Complainant remained in the passenger seat of the Saturn. [ 7 ] Constable Lachapelle testified that the Accused arrived on the scene and that he instructed the Accused, who was the junior officer, to “keep an eye on” the Complainant. He testified that he did not tell the Accused to arrest the complainant. [ 8 ] Constable Cucheran testified that he attended to the scene in response to a request to provide cover for Constable Lachapelle. He arrived at 11:18 p.m. When he arrived, Constable Lachapelle was in his vehicle on the computer.

He recalls that the Accused was the last officer to arrive at the scene. It was his recollection that he dealt with the driver, while the Accused stood by the passenger side of the Saturn. Constable Cucheran also recalls a strong odour of marijuana coming from that vehicle. Constable Cucheran testified that he spoke to the Accused and told the Accused that he could arrest the Complainant. [ 9 ] The Accused testified on his own behalf, and he confirms that he was instructed by Constable Cucheran to arrest the Complainant for possession of marijuana.

He testified that he told the Complainant that he was under arrest for possession of marijuana and asked the Complainant to put his hands where the Accused could see them. He testified that the Complainant ignored his requests to do so. (

b) Altercation inside the Saturn [ 10 ] Constable Cucheran testified he walked Mr. Whelan over to the side of Constable Lachapelle’s vehicle. He did a pat down search of Mr. Whelan by having Whelan stand beside the passenger side of the police car with his hands on the roof of the vehicle. He heard the Accused asking the Complainant for identification and heard the Accused’s voice get louder and say to the passenger “hey, come here.” He saw the Accused reach into the Saturn, apparently in some sort of a struggle. He saw the Accused enter the vehicle through the window of the front passenger’s door.

Constable Cucheran got closer to the vehicle and from the driver’s side he could see the Accused with his hands around the neck and face area of the Complainant. He also saw the Complainant reach for something in the area between the two front seats, as if he was reaching underneath the seats. [ 11 ] According to Constable Cucheran, it appeared that the Accused was trying to gain control of the Complainant. A magazine full of bullets had fallen out of the Accused’s belt in the struggle. Constable Cucheran could hear the Accused telling the Complainant to stop reaching.

The two ended up in the back seat of the vehicle in the course of the struggle and Constable Cucheran opened the back door. At this point Constable Cucheran testified that the Complainant appeared more scared than combative and was no longer reaching for anything. [ 12 ] Constable Cucheran went back to put Mr. Whelan in the back of Constable Lachapelle’s vehicle. He could hear the Complainant swearing at the Accused. By this time the Accused had gotten out of the vehicle and the Complainant was still inside.

Constable Cucheran gave the Complainant verbal commands to get out of the car, but the Complainant did not comply with these. Constable Cucheran testified that he saw the Accused try to remove the Complainant from the car, but the Complainant was kicking at him. Eventually the Accused was successful in getting the Complainant out of the car. [ 13 ] Constable Lachapelle testified that while he was seated in his vehicle, looking at his computer, he heard Mr. Whelan become excited, telling him to look up. Constable Lachapelle did so and could see an altercation from inside the Saturn vehicle.

He testified that he got out of his vehicle, opened the rear passenger door of the Saturn to assist the Accused. He observed the Accused struggling with the Complainant. He saw both trying to grab at one another’s hands and he recalled that the Accused was telling the Complainant to calm down and stop wrestling. Constable Lachapelle testified that the Complainant calmed down and the Accused pulled the Complainant out of the vehicle. Constable Lachapelle then returned to his vehicle. [ 14 ] The Complainant gives a version of events which describes the Accused as the aggressor in this situation.

He testified that when his friend Mr. Whelan left the vehicle, the Accused asked him for his identification and he provided it. He said that the Accused looked

like he was mad about something. He testified that the Accused said to him “do you have a fucking staring problem?” and that he replied “no, not at all officer.” The Complainant testified that the Accused then grabbed the side of his head and punched him in the face. He testified that he tried to get away from the Accused by attempting to crawl into the back seat, but that the Accused followed him into the vehicle through the window of the passenger side front door, striking him repeatedly and choking him.

The Complainant said that the Accused had his hands around his neck very tightly and he was having trouble breathing. He describes the punches he received as very powerful. [ 15 ] The Accused testified that after he told the Complainant that he was under arrest, the Complainant ignored repeated requests to show his hands. He felt unsafe at not being able to see the Complainant’s hands and when he leaned closer to the vehicle, he testified that he was punched in the stomach by the Complainant. He testified that he leaned in the vehicle to attempt to control the Complainant’s hands.

The Complainant appeared to be reaching for something in the back seat, behind the driver’s seat. He and the Complainant struggled and he was struck numerous times by the Complainant. He testified that the Complainant was also attempting to kick him in the groin and to elbow him. He said that he tried to hold the Complainant’s hands together, but the Complainant bit him.

The Accused testified that he never grabbed the Complainant by the throat and that he never held the Complainant down and punched him. [ 16 ] After he gained control of the Complainant, the Accused testified that he was able to open the back door of the car and get a foot on the pavement. He said that he asked the Complainant to stop fighting, but that this request was met with profanity. The Complainant continued to struggle and was kicking at the Accused. The Accused testified that none of his fellow officers were helping to control the Complainant. (

c) Alleged assault outside of the car [ 17 ] Constable Cucheran testified that once the Accused had the Complainant outside of the car, he “wrapped his arm, his right arm around Pecchia’s neck and then put his other hand onto his fist, picking him up off of the ground and started walking backwards away from the car.” Constable Cucheran noted the size difference between the Accused, who was about six foot five, and the Complainant who was about five foot seven.

Constable Cucheran testified that the Complainant’s feet were not touching the ground and at first the Complainant was trying to kick the Accused in the shins, but then he stopped kicking and appeared to go limp for a time. [ 18 ] According to Constable Cucheran, the Accused appeared angry. He told the Accused “okay, that’s enough, put him down.” After a brief pause, the Accused complied with this direction and the two officers placed the Complainant on the ground face down. He recalls that the Accused may have swore at the Complainant and called him a “little goof”.

The Complainant continued to offer some resistance, but he was soon handcuffed. [ 19 ] Constable Lachapelle recalled that as he was walking back to his vehicle, he saw the Accused holding the Complainant, but in a different manner from what Constable Cucheran describes. He testified that the Accused slid his arms underneath the Complainant’s arms and locked his hands behind the Complainant’s neck.

He did not observe the Complainant attempting to strike or kick at the Accused. [ 20 ] Kristen Dodd was a resident of the area who was alerted to the disturbance surrounding this situation, as it occurred across the street from her home. She testified about hearing raised voices. She testified that she heard the Complainant pleading loudly with words to the effect of “please sir, what did I do, what did I do?” She did not see the Complainant strike at the Accused, but she does recall seeing the Complainant appear to go limp in a manner that caused her to assume that he was unconscious.

She also testified that the Accused was behaving in a manner that caused her concern over the safety of the Complainant. She describes the Accused as very agitated, especially in comparison to the other officers who appeared calm. [ 21 ] Haylee Wilson is a university student who resided in the same house as Ms. Dodd. She also witnessed much of the commotion, and she testified that she saw the Accused place an arm under the Complainant’s neck and put him in a choke hold. She did not recall seeing the Complainant kicking at the Accused and like Ms.

Dodd, she recalled that the Complainant was asking “sir, what did I do?” [ 22 ] The Complainant testified that when the car door was opened, he fell out on to the concrete. He denies ever striking or kicking at the Accused. Following the incident he was not arrested for anything. He was driven home and later he attended at the Surrey RCMP Detachment with his father to make a complaint. His injuries were photographed at the police station. He testified that he had cuts inside his mouth, and scratches to his neck.

His teeth were also injured and he saw his dentist about his injuries. [ 23 ] It was the evidence of the Accused that he removed the Complainant from the vehicle, but that the Complainant continued to struggle. He testified that he held the Complainant’s shoulder as a pivot point, pushed him on the other shoulder to spin him around, and once the Complainant was facing away from him, he placed a hand behind the Complainant’s head to prevent a head butt. He walked the Complainant back onto the grass, twisted his arm to bring him to the ground and was finally able to handcuff him.

The Accused testified that the Complainant continued to be combative even after he was placed in the back of a police vehicle. Shortly after that the Accused left the scene and returned to the detachment. (

d) Use of Force Experts [ 24 ] Both the Crown and the defence called expert witnesses who were qualified to give opinion evidence in the field of use of force by police officers.

Both were knowledgeable and experienced witnesses and each gave their opinion on the appropriateness of force used under various hypothetical situations. [ 25 ] For the Crown, Constable Steven Henderson, an RCMP officer who instructs other officers in the use of force, gave evidence about the Incident Management Intervention Model, a tool which essentially sets out what level of force is appropriate for what situation, taking into account such factors as a subject’s level of co-operation or combativeness, the perceived threat, the presence or absence of a weapon, and many other risk assessment factors.

He testified that the use of hands around the throat of a subject is not a taught intervention option. He was asked to comment of each of the scenarios put forth by the various witnesses and gave his opinion on the appropriate level of force in each case. It was his opinion that a carotid control technique (a procedure in which a subject’s carotid artery is impeded in order to induce feinting) is appropriate only where the perceived threat level is one of death or grievous bodily harm.

[26] On behalf of the defence, John McKay, a retired police inspector with 36 years of combined experience in the RCMP andVancouver Police Department, also provided an opinion on the use of force appropriate for police officers in given situations. Heexpressed concern over the fact that when it became apparent that the Complainant was becoming combative, the other officers let theAccused deal with the situation on his own and that they seemed to go back and forth from the situation.

He also expressed the opinionthat, from the description of the witnesses, the Accused had not applied a carotid control hold on the Complainant. Position of the Parties [27] The Crown argues that the conduct of the Accused constituted an assault for two reasons: (

a) because the force he appliedagainst the Complainant did not take place in the course of a lawful arrest and is therefore not justified under

section 25 of the CriminalCode; and (

b) because the force applied was excessive, especially in the application of the carotid control hold on the Complainant, andtherefore

section 25 of the Code offers the Accused no defence on these facts. [28] On behalf of the Accused, Mr. Harris argues that the force used by the Accused against the Complainant was applied inpursuance of a lawful arrest, following the directions of his senior officer. The force used was not excessive, having regard to the actionsof the Complainant. In particular, the evidence is not clear that any carotid control hold was ever applied. Applicable Law (

a) Definition of Assault [29] An assault is defined in

section 265 of the Criminal Code in part as follows: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) Defence Under

Section 25 of the Criminal Code [30] Conduct which otherwise might constitute an assault, may be lawful when performed by a peace officer in circumstancescontemplated by

section 25 of the Code. That section, in part, reads: 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 necessaryfor that purpose. [31] This subsection has been interpreted to permit police officers to use as much force as is necessary in performing their duty,provided that the force used does not exceed what is necessary and is reasonable under the circumstances. The belief of the officer thatsuch force was necessary under the circumstances must be viewed objectively. In R. v. Botterill (1981) (BC CA), 60C.C.C. (2d) 211 (B.C.C.A.), Anderson J.A. wrote at p. 217-18: “

(1) The starting place is that a peace officer, if he acts on reasonable and probable grounds, can use as much force as is necessary toeffect an arrest, but that if he uses more force than is necessary, he is not justified in the eyes of the criminal law… “

(4) In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances asthey existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the forceused with exactitude.” [32] In deciding what is reasonable, the trier of fact must take into account the police officer’s training and experience as well as thenature of the call. Bernt v. City of Vancouver 1999 BCCA 345 , [1999] BCJ No. 1257 at para 25.

At para. 34-35, Southin J.A.adds that the question is not whether or not the officer was correct in using the force, but whether the officer had a reason for believingthat the use of such force was necessary and if a reasonable person in the same position would find that belief to be reasonable. [33] When a court is called upon to review the conduct of a police officer in a case such as this, the court must exercise some latitudein favour of the police, who are called upon to act and react in very difficult circumstances. R. v. Asante-Mensah 2003 SCC 38 ,[2003] SCJ No. 38 at para 73. [34] In R. v.

Devereaux (1996) (NL CA), 112 C.C.C. (3d) 243 (Nfld. C.A.) it was also noted that this

section mayoffer a defence where the officer performs his or her duties in good faith, notwithstanding that the action may not be perfectly incompliance with the law.

Steele J.A. held: 23 For our purposes, s. 25, s-ss. 1 and 2 may be read as follows: any person required or authorized by law to perform duties in theadministration or enforcement of the law in the capacity of a person described in paragraphs a, b, c or d, if he or she acts on reasonablegrounds, is justified in performing the duties and may use as much force as is necessary; and, if a person is required or authorized by lawto implement, enforce or perfect a process and does so in good faith, he or she is justified (protected) notwithstanding that the method orcourse of action is legally flawed or performed without or in excess of jurisdiction.

The foregoing is the measure or test the respondentmust ultimately meet. (Emphasis added). [35] I note this because the Crown has provided authority for the proposition that an arrest based solely on the odour of burntmarijuana does not furnish reasonable grounds for arrest and therefore any purported arrest of the Complainant on this basis was notlawful. On my review of the authorities however, this alone does not disentitle the Accused to the benefit of

section 25 provided that heacted in good faith.

(

c) Powers of Arrest [36] Section 495(1) of the Criminal Code provides in part as follows: 495.

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; [37] In R. v. Storrey (SCC), [1990] 1 S.C.R. 241, the Supreme Court of Canada succinctly explained what isrequired in order for a police officer to lawfully arrest someone that the officer believes has committed an offence. Mr. Justice Cory, ashe then was, summarized the law as follows: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [38] An arresting officer may use as grounds for an arrest directions from a superior officer. Unless there is something in thecircumstances which might reasonably cause the junior officer to question those instructions, the information from the superior officerthat the subject is “arrestable” can form the basis for reasonable and probable grounds. This is explained by Dambrot J. in R. v. Awalu[1997] O.J. No. 5539 (Ont.

C.J.) as follows: 16 ...Wilson J. noted in Debot v. the Queen (1989) (SCC), 52 C.C.C. (3d) 193 at 214 (S.C.C.): The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the onewho decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts thesearch, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so.

The same reasoning applies to the decision to arrest... 17 It is also clear that an arresting officer who makes the decision to arrest can do so, in part, on the grounds held by another officer,without knowing what those grounds are. Thus in R. v. Hall (1995), (ON CA), 22 O.R. (3d) 289, the Court of Appealconcluded that an arrest was lawful, and a search incident to it reasonable, where the arresting officer made the decision to arrest basedon a radio dispatch that merely gave a description of a break and enter suspect.

The arresting officer knew nothing about the offence, orthe grounds that existed for the belief that the man matching the description had committed it. So long as other officers had reasonablegrounds, the arrest was lawful. Similarly in this case, both Ross and Giedroyc were entitled to rely on the fact that Getty had given thetake-down signal, and had pointed out Awalu in the tavern, without knowing all of the underlying reasonable grounds which justifiedhim in doing so. (

d) Credibility [39] In this case, there is nothing close to universal agreement about what happened. Much of the evidence is in conflict, not onlybetween the Crown witnesses and the Accused, but even among various Crown witnesses on certain aspects of the evidence.Accordingly, I keep in mind that the test in a criminal trial is not which side I believe, but whether or not the Crown has proven theoffence beyond a reasonable doubt.

I am required to consider whether, on the total body of evidence, viewed as a whole, the Crown hasproven each essential element of the offence beyond a reasonable doubt. [40] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v. D.W. (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit.

Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [41] In R. v. C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Mr.

Justice Wood (as he was referred toback in those days) gave the following further advice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” Analysis [42] The Crown takes the position that the Accused is guilty of an assault on the Complainant firstly because he intentionally appliedforce against the Complainant, without the Complainant’s consent, when he tried to arrest the Complainant without lawful grounds to doso. Because the arrest was unlawful, the Crown argues that the Accused can not avail himself of a defence under

section 25 of theCriminal Code. [43] The evidence satisfies me that Constable Cucheran instructed the Accused to arrest the Complainant for possession of marijuana.I agree with the Crown that this direction was based solely on the detected odour of burnt marijuana, and that on these facts this was not

a sufficient basis on which to found an arrest of the Complainant. The Crown says that the law on this point now appears settledaccording to cases such as R. v. Janvier 2007 SKCA 147; R. v. Hood 2008 BCPC 217 , 2008 BCPC 0217; R. v. Polashek (1999) (ON CA), 45 O.R. (3d) 434. I would note however that in R. v. Webster 2008 BCCA at para. 37 the Court ofAppeal of this province suggests that this proposition is less clear in this province, but declines to rule directly on the issue.

Nevertheless,I agree that there was no other objective reason for the Accused to reasonably believe that he had the grounds to arrest the Complainanton the facts put before the court. In my view however, this does not decide the question. [44] I find that the direction that Constable Cucheran gave to the Accused was similar to the “takedown sign” given to the arrestingofficer in R. v. Awalu, supra, which formed the foundation of a valid arrest. The Accused was able to place reliance on the direction ofhis superior officer that the Complainant was “arrestable”.

But even if this conclusion is incorrect, on the authority of R. v. Devereaux,supra, this is not fatal to the availability of the protection of

section 25 for the Accused. Even if the arrest was legally flawed, I find thatthe Accused was following the direction of a senior officer and that in doing so, he acted in good faith and was therefore entitled to usereasonable force to arrest the Complainant. In coming to this conclusion I am mindful of the experience of the Accused as a policeofficer and the latitude which must be accorded to him, according to the Supreme Court of Canada’s decision in R. v. Asante-Mensah,supra. Where a point of law such as this is open to argument and

interpretation among judges and lawyers, it is unfair in my view to becritical of a newly minted police officer for not knowing what the law was or suggest that such a lack of knowledge is somehow badfaith. [45] I would also note that there are only two persons who know how the altercation between the Accused and the Complainantbegan, namely the two of them. They have given diametrically opposing evidence about what took place. If the evidence of theComplainant is to be preferred, the Accused did not act reasonably and would not be entitled to the benefit of

section 25. Conversely, ifthe evidence of the Accused is to be preferred, he is the one who was assaulted by the Complainant and he would therefore be justifiedin using force to prevent a further assault. As such, his conduct would not constitute an assault. In resolving this conflict, I must applythe analysis directed by the Supreme Court of Canada in R. v. W.D., supra. [46] On an application of those principles I must first ask whether or not I accept the evidence of the Accused.

The evidence of theindependent witnesses, particularly that of Constable Cucheran and of the civilian witnesses satisfies me that the Accused demonstrated alack of composure and an inability to control his anger following the conclusion of the incident. I am therefore reluctant to accept theAccused’s evidence as being a completely objective account of what took place. [47] The version of events put forth by the Complainant is also at odds with some of the independent evidence. For example, hisdenial that he attempted to kick at the Accused is in conflict with the evidence of Constable Lachapelle.

His evidence that the entirealtercation began with an unprovoked punch from the Accused is difficult to accept. [48] In the final analysis I find myself in the position described in R. v. C.W.H. I have carefully considered the evidence, but amunable to decide which version to believe. The possibility exists that the Accused’s version may be true, and as such, the burden of proofbeyond a reasonable doubt has not been met. [49] The Crown also alleges that an assault has been proven because the Accused used excessive force when he applied a carotidcontrol hold to the neck of the Complainant.

The difficulty with this contention is that the evidence is not at all consistent as to whetheror not this occurred. Neither the Complainant nor the Accused gave any evidence of such a tactic being used. Constable Cucherandescribed the Accused as wrapping his tight arm around the Complainant’s neck and then putting his other hand onto his fist to pick theComplainant up off of the ground. Constable Lachapelle saw something different.

He testified that the Accused slid his arms underneaththe Complainant’s arms and locked his hands behind the Complainant’s neck, somewhat similar to what the Accused described doing.Haylee Wilson recalls that the Accused placed his arm under the Complainant’s neck in what she calls a “choke hold.” The Accusedadmits only to holding the Complainant’s head in such a manner as to prevent a head butt. [50] There is no clear evidence as to how the Accused was holding the Complainant, especially in light of the conflicting descriptionsfrom the two independent police officers and the lack of evidence on this point from the Complainant.

There is also conflicting evidenceabout whether or not the Complainant continued to kick at the Accused, making it difficult to assess what level of force was reasonablefor the Accused to apply under the circumstances. Because of this I am unable to be satisfied, beyond a reasonable doubt, that theAccused applied excessive force against the Complainant. Conclusion [51] On the evidence presented, all that can reasonably be concluded is that the Accused demonstrated a loss of self-control to adegree that concerned his fellow officers, as well as reasonable members of the public who observed his behaviour.

While such conductis regrettable, it does not equate with the commission of a criminal offence. For the foregoing reasons I find the Crown has not proven allof the elements of the offence beyond a reasonable doubt. I therefore find the Accused not guilty of the offence charged. Dated at the City of Abbotsford, in the Province of British Columbia, this 8th day of July, 2011. __________________________________ K. D. Skilnick, P.C.J.