R v Walker, 2023 ABKB 341

Court of King’s Bench of Alberta Citation: R v Walker, 2023 ABKB 341 Date: 20230606 Docket: 200305480Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Richard Walker Accused Corrected judgment: A corrigendum was issued on June 7, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] These reasons are the culmination of a lengthy prosecution against the accused Richard Walker that began with a traffic- related investigation in a west-end McDonald’s parking lot on February 13 2020.

Now more than three years later Mr. Walker faces one count on an indictment alleging that he assaulted one Anton Golosov, causing him bodily harm, contrary to s 267(

b) of the Criminal Code .

[ 2 ] The complainant is an Edmonton Police Service constable. At an earlier point in these proceedings Mr. Walker was charged with unlawfully resisting an arrest by Cst Golosov, and with assaulting him, causing bodily harm. Both charges hinged on proof Cst Golosov was acting in the execution of his duty. Mr. Walker proved in a pre-trial application however that his arrest was unlawful. The trial thus proceeded on the related s 267(

b) charge, without formal regard for whether Cst Golosov was acting in the execution of his duty. [ 3 ] For reasons which follow, in the assault causing bodily harm trial Mr. Walker successfully argued that he was acting in self- defence, and is entitled to be acquitted. The unlawful arrest [ 4 ] As noted, Mr. Walker succeeded in proving in a pre-trial application that his s 9 rights under the Charter of Rights and Freedoms were breached by an unlawful arrest on February 13, 2020.

Reasons for decision on the unlawful arrest issue were given orally on March 23 2023. [ 5 ] The foundation of the unlawful arrest finding was this court’s earlier decision in R v Hadi 2018 ABQB 35 . The facts in Hadi were of a motorist detained for a traffic-related infraction. He was asked to produce his driver’s license and vehicle documents. When he refused to do so, he was arrested for obstruction under the Criminal Code . [ 6 ] The outcome in Hadi turned on a finding that the accused did nothing except refuse to produce his documents.

He did not “enlarge” his liability by engaging in further misconduct that itself could justify an arrest for obstruction under the Criminal Code . It was a case unlike Virani v HMTQ , 2011 BCSC 1032 . In Virani , the trial judge found the accused engaged in additional misconduct that constituted obstruction withing the meaning of the Criminal Code . [ 7 ] In the case against Mr. Walker, no additional misconduct was found. [ 8 ] In the case against Mr. Walker, I disagreed with the Crown’s contention that Hadi was distinguishable because in the end Mr. Walker was not charged with obstruction.

What is relevant is that both Mr. Hadi and Mr. Walker were arrested for obstruction. And they were both arrested unlawfully. What charge resulted from such unlawful arrests – and what became of the charge – would be matter for any remedy stage of the proceedings. [ 9 ] In Hadi I considered the case of R v Chanyi , 2016 ABPC 7 . In Chanyi Henderson PCJ (now Henderson

J) followed the Sharma and Hayes line of cases and concluded at para 105 that: In

summary, I conclude that the decision of the Supreme Court of Canada in Sharma , and the authorities which interpret Sharma , make it clear that when police are exercising their duty pursuant to Provincial legislation or a By-law and where that legislation provides for a means of enforcement, then a suspect who simply refuses to comply with police demands that he do what the legislation provides, cannot be properly subject to an obstruction charge pursuant to s. 129 (

a) of the Criminal Code . Instead of invoking a criminal sanction, police are restricted to pursuing the means of enforcement specified in the Provincial legislation or the By-law. However, if in their attempts to pursue the specified means of enforcement, police are interfered with by the actions of the suspect, then an obstruction charge is appropriate provided that the conduct complained of is not “precisely the same conduct” as that prohibited or required by the legislation. [ 10 ] As was the case in Hadi , the “specified means of enforcement” in Mr. Walker’s case are ss 166-169 of the Traffic Safety Act.

In Mr. Walker’s case Cst Golosov did not employ the appropriate “specified means of enforcement”. Rather, he went straight to an arrest for obstruction. [ 11 ] Coming out of the evidence on the s 9 Charter application, Cst Golosov was asked the following questions and gave the following answer in examination in chief: Q: What were your grounds for arresting him for obstruction? A: Well, he clearly wasn’t cooperative with my demands. At minimum he was a driver of a vehicle on the highway, Maam.” ... Q: Okay, so you said that your grounds were that he was not complying with your directions. A: Yes.

Q: So what authority were you relying on at that point? A: At that time, the Traffic Safety Act of Alberta. Q: Tell me more about your authority under the Traffic Safety Act. A: As a – as driver of a vehicle or otherwise a person that has care and control of that vehicle on the highway, and under the Traffic Safety Act , the drive-through of that McDonald’s is the highway. He must comply with my directions, and he must produce documents upon demand which he hasn’t done Q: And when someone doesn’t do those things, what authority do you have? A: To arrest the person for obstruction...

[12] Inexplicably, later in his evidence Cst Golosov denied he said that he was arresting Mr. Walker under Traffic Safety Actpowers. [13] In any event, I found it could not be clearer from Cst Golosov’s evidence that he believed he was entitled to go straight to anarrest for Criminal Code obstruction after Mr. Walker refused the request to provide his license, vehicle insurance and registrationdocuments pursuant to a Traffic Safety Act demand. [14] The Crown argued that Cst Golosov had grounds to arrest for causing a disturbance. I disagreed there was evidence ofgrounds in relation to causing a disturbance.

While causing disturbance may have been vaguely on Cst Golosov’s mind, I found therewas insufficient evidence that Cst Golosov formed the requisite subjective grounds, or had objective grounds, that Mr. Walker was orwas about to commit the offence of causing a disturbance. [15] I also rejected the Crown’s argument that I should interpret Cst Golosov’s use of the word “obstruction” as meaningsomething other than Criminal Code obstruction. I was asked to keep in mind that English was not his first language. I found thatargument had no merit.

Cst Golosov was not asked about any such unusual use of the word “obstruction” in the proceedings. He was notasked if he had any language difficulties. No such difficulties were apparent on my assessment of his evidence as a whole. [16] The Crown further argued against a standard of perfection for Cst Golosov.

While that may have again been an argument forremedy, on the unlawful arrest issue I noted that Hadi, not appealed, has been the law in Alberta since it was decided in January, 2018,fully two years before the events of February 13, 2020. [17] The outcome in Hadi was based, in part, on the principle of restraint in the use of the criminal law sanction (see paragraphs38-49). Paragraphs 42-43 from the Hadi decision bear repeating: [42] In his influential book The Limits of the Criminal Sanction (Stanford University Press, 1968) Professor Herbert Packer arguesagainst the indiscriminate resort to criminal law.

As he puts it, at p 364: We can have as much or as little crime as we please, depending on what we choose to count as criminal. Only when this basic fact isunderstood can we begin to deal rationally with the problem of choice by applying relevant criteria for proper uses of the sanction. [43] As I understand Prof Packer’s argument, included in those criteria is the restrained use of the criminal sanction, particularly inthe presence of appropriate, less intrusive alternatives. [18] In his successful unlawful arrest application Mr.

Walker argued that in the context of the criminal law, fundamentally he had a“right to be left alone”. The Crown did not disagree, assuming certain pre-conditions. One of those could be the finding of an unlawfularrest. [19] The right to be left alone is of long standing and perhaps either so obvious or overlooked that it seems only occasionally toappear in authorities. [20] One such recent authority however in favour of being left alone is the decision of Schutz JA sitting in the Nunavut Court ofAppeal in R v Gibbons, 2021 NUCA 17.

Schutz JA said this, in the context of an unlawful arrest for what she characterized as a“nuisance complaint”: [27] More importantly however, neither one of the arrests was justified on the trial evidence. While these type of nuisancecomplaints are undoubtedly burdensome for the police, their response must nevertheless remain lawful. Should an arrest be made, it mustbe on reasonable and probable grounds that an offence has been or is being committed, and not because they do not know what else to dowith an intoxicated individual who is the subject of a nuisance complaint.

Further, once the police assert physical control over thatintoxicated individual, that control must be lawful and reasonable in all of the circumstances. That is not what happened in either of thesetwo incidents; the arrests were unlawful. The appellant was also not told why she was being arrested, why she was being stripped of herclothing, or why she was being manhandled by police. In such circumstances, she was not required to simply stop, submit and passivelyacquiesce to their unlawful actions while hoping for a better outcome sometime down the road.

The trial judge erred in law in so finding.[emphasis added] [21] An older authority is R v Plummer, (2006) (ON CA), 83 OR (3d) 528 ONCA per Rosenberg JA, whichstates what should be an uncontroversial proposition that if an arrest is unlawful the officer is not in the execution of his duty and thecitizen is entitled to resist arrest. [22] Cases considering Plummer include R v Wolver 2011 ABPC 308 per Matchett ACJ, who notes at paragraph 35 that “anaccused is entitled to use force to resist [an unlawful arrest] provided the force they use is no more than necessary”.

Assault causing bodily harm & self-defence [23] I turn now from the earlier but still contextual unlawful arrest finding to the trial for assault on Cst Golosov, causing bodilyharm. [24] Three questions can be answered at the outset. First, there is no question that on the evidence Mr. Walker assaulted CstGolosov. Second, equally there is no question that in the assault Cst Golosov sustained injuries that were more than trifling or transient.And third, having regard for the test stated in R v Effert, 2021 ABCA 388 (citing R v Cinous, 2002 SCC 29), I find there is an air ofreality to Mr.

Walker’s defence of self defence. [25] In concluding that an air of reality exists, I have considered the totality of the evidence and find that it discloses a real issue tobe decided with regard to each of the elements in s 34(1) of the Criminal Code, and with regard to the numerous factors set out in s 34(2)

of the Criminal Code . [ 26 ] Section 34(1) states that a person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. [ 27 ] Section 34(2) states that in determining whether the accused’s act is reasonable in the circumstances, I must consider the relevant circumstances, the person, the other parties, and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 28 ] Given the air of reality to the defence, the question now to be resolved is whether the Crown has met its burden of proving beyond a reasonable doubt that Mr. Walker was not acting in self-defence. As noted, I conclude in these reasons that he was acting in self-defence. The events of February 13, 2020 [ 29 ] The events of February 13, 2020 began in the early afternoon in the McDonald’s parking lot at 6741 177 street in Edmonton. Mr.

Walker was one of several customers in their vehicles in the drive-thru line outside the restaurant. Evidence of Cst Golosov [ 30 ] Cst Golosov was on patrol and in the area of the incident. He heard yelling and swearing and connected it to Mr. Walker’s vehicle in the McDonald’s drive-thru. Cst Golosov testified that he had two choices: he could ignore the situation because no one had yet complained about it, or he could investigate. He decided to investigate. Having done so, he observed Mr. Walker pointing his finger towards a McDonald’s employee and yelling profanities.

He described the employee “looked like a child being yelled at” and appearing to be extremely uncomfortable. He tried to catch the employee’s eye, to make eye contact to ensure everything was okay, but was unsuccessful. At no point did Cst Golosov obtain a complaint about Mr. Walker’s conduct from any McDonald’s employee. [ 31 ] Cst Golosov also dealt with a Jennifer Bernardin who was also in the McDonald’s drive-thru line. Ms Bernardin was an off- duty EPS member, but there is evidence Cst Golosov was aware of this. According to Cst.Golosov, she complained about Mr. Walker’s demeanor.

She asked words to the effect - “can you please deal with this guy who is acting like a prick and holding up the line”. [ 32 ] Cst Golosov then approached passenger’s side of Mr. Walker’s truck. He knocked on window of Mr. Walker’s vehicle. Mr. Walker responded by saying: “What the fuck do you want?” Cst Golosov told him he wanted to talk to him about his behaviour. Mr. Walker responded by telling him to fuck off and showed him the middle finger. Cst Golosov testified that directed Mr. Walker to pull into the nearby parking lot so that he could speak with him about his behaviour. Mr.

Walker responded to the effect that ‘I don’t have to follow your fucking orders, I’m in the middle of something here’. To this Cst Golosov said that he repeated his “demand”, adding that he told Mr. Walker “you can come back and finish your business once I’m done talking to you”. In the midst of further swearing and yelling, Cst Golosov testified, Mr. Walker nevertheless complied with his demand, and drove into a nearby parking stall. Cst Golosov testified he noted Mr.

Walker’s rear license plate was partially obscured by snow. [ 33 ] Cst Golosov testified further that based on what he just described (he also noted what he described as a large dog in the cab of Mr. Walker’s vehicle, noting it presented a further unknown – “Like, with the dog inside – large dog that can bite my hand”), he came to following conclusion: This is 9 out of 10 on a scale of concerning behaviour for me with 10 out of 10 would be if this person would point blank -- point blank approach me and assault me right there right -- right at this point before we go any further.

So to me, it was already a concern. So he was

extremely aggressive to a manager of McDonald's who literally was not aggressive -- wasn't doing -- from what I observed, the manager wasn't even telling him anything. He was just nodding his head like a -- like a child who's being bullied. That's like how he described. And then he sees a 6, 2, almost 200 pounds patrol officer approaching him and knocking on his window with a background being a marked police car and tell him to, what the fuck do you want, kind of fuck off. So that's already concerning right there. That's abnormal behaviour. [ 34 ] Mr.

Walker disregarded Cst Golosov’s demand that he remain in his vehicle. After parking and exiting his vehicle an exchange continued with Cst Golosov, who was still inside his own police vehicle. Cst. Golosov asked for Mr. Walker’s licence, insurance and registration. Asked by Mr. Walker ‘why’, Cst Golosov explained he was unable to read Mr. Walker’s license plate that was partially obscured with snow. Mr. Walker told Cst. Golosov he didn’t have to show him anything. Cst Golosov responded by telling Mr. Walker would then be arrested for obstruction. [ 35 ] This exchange having occurred, Mr.

Walker walked away from Cst Golosov and toward the northeast entrance of the McDonald’s where he had a conversation with the manager of the restaurant, one Trung Le, who was now standing just outside the entrance. Mr. Le was the same individual who Cst Golosov earlier identified as being the subject of Mr. Walker’s behaviour. Cst Golosov described the interaction now between Mr. Le and Mr. Walker as calm and peaceful. [ 36 ] It is around this time in the narrative at trial that surveillance video from the McDonald’s restaurant starts to show relevant evidence. [ 37 ] For example, Mr.

Walker is seen driving his vehicle into a parking spot outside of the drive-thru line, and Mr. Walker exiting his vehicle and striding toward the calm, peaceful encounter with the McDonald’s manager. The two exchanged words and a slip of paper and shook hands before parting. [ 38 ] Around the same time, the video shows Cst Golosov pulling his police vehicle behind Mr. Walker’s parked vehicle, then exiting just as Mr. Walker was finishing up with Mr. Le. Mr. Walker then walked straight over to Cst Golosov who by now had exited his own vehicle.

The video shows a brief about two-second exchange of words between the two. Cst Golosov testified he was telling Mr. Walker, again, that he was being arrested for obstruction. Cst Golosov directed Mr. Walker to put his hands behind his back to place him in handcuffs. He took hold of Mr. Walker’s right arm and twisted it behind Mr. Walker’s back. [ 39 ] At this point in the video Mr. Walker is seen with his right arm being held and pulled back and behind his back by Cst Golosov. The video shows Mr. Walker turning counter-clockwise away from Cst Golosov. It shows Mr.

Walker holding his left arm out in the direction of his own vehicle. [ 40 ] Whether as a result of pulling away from Cst Golosov, or as a result of being pushed ahead on the road surface, the next approximately 14 seconds on the video shows the two men moving from a position aligned roughly with the driver’s side door of the police vehicle to front left bumper of that vehicle. During this time Cst Golosov testified that he was telling Mr. Walker he was being arrested for obstruction. He testified further that Mr.

Walker was objecting that he did not have his licence on him, that it was in his truck. [ 41 ] Cst Golosov testified that at this point he was ignoring Mr. Walker’s objections: Q Did he say anything to you about those documents? A He said, I don't have a driver's licence, which I was at that point ignoring all of this, because, like, to me, this person was clearly not going to cooperate. From my experience to that point and to this point, I have exactly the same opinion and experience.

At that point, there was clear signs of this person buying time to do something -- I don't know what -- to kind of escape their interaction with police or whatnot. Q So why did you not give him an opportunity to go back to his truck to get documents if that's where you were? A Because his story kept changing, and his demeanour at that point -- at that time was concern enough for me to -- I don't know what he's going to do. I also have in mind the fact that I don't know about the truck I'm dealing with. I don't know if it's a stolen truck. I don't know who I'm dealing with at all.

This person is clearly uncooperative, aggressive. As I mentioned before in my experience at that time and this time, it's a 9 out of 10 for my scale of basically officer safety concerns. I'm a one-man car. I have no -- nobody else there.

So to me, like, the easiest way would be -- and that was my experience before and after this stop -- when you're dealing with people like this who you can't reason with and they think everything is a joke, that the law enforcement is a joke, the laws of -- is a joke, everybody else in the public place is a joke, the joke stops becoming a joke when they -- they are under arrest in handcuffs. Usually, that brings them down, and you can finally reason with them.

That's -- that's my experience. [ 42 ] At the end of this 14-second period of relative inactivity, and doubtless with his subjective officer safety concerns in mind, Cst Golosov decided “the next step is a takedown”. [ 43 ] What is seen on the video is Cst Gosolov bringing his left arm around Mr. Walker’s left shoulder and neck, and at the same time using his left leg against Mr. Walker’s right leg and hip. As Cst Golosov described it in his evidence: A I tried to take him down by tripping his -- one of his legs over my left leg, and it didn't work. I mean, it worked against me. So … Q So what happened?

A What happened is I put myself out of balance, and he capitalized on that. That's how I can describe it. He ended up on top of me. Q Tell me more about the ground surface.

A It's extremely slippery. It's, like, sheer ice. Q So you tried to -- you lost your balance. What happened? A He fell on top of me. I fell backwards. He fell on top of me and immediately started punching me to the left side of my head. Q Were you able to tell what type of punch this was? A No. Q How many times did he punch you in the head? A I have no idea. Q Okay. And then what happened? A And then I -- I could feel him gouging my left eye with either his finger or his thumb.

Like purposely gouging, not just like a -- an accidental poke that you see in, like, martial arts, like, fights that you (INDISCERNIBLE) into. Q What did that feel like? A I feel like that my eye's about to explode. [ 44 ] Cst Golosov testified about reaching for his firearm but was unable to bring it into play. His next step was to respond with what he called “equal force”: Q Okay. So you couldn't get your handgun. What did you do? A There was not many options that I could use. I tried to respond with equal force, so gouging his eyes in response. Q Were you able to reach his face? A Yes.

Q And what did you do when you reached his face? A I started gouging his eyes. Q What do you mean by that? A I used my thumbs, from what I remember, to press as hard as I could even though I was in complete disadvantage. Like, in the first -- like, the person is doing something on top, you can just use -- he or she can use, and you just wait.

I was just born a tall individual with tall arms so I could shoot through, and my -- the length of my arms allowed me to reach his eyes so I could kind of put some pressure on his eyes, not as much as I wanted at that time but at least enough to distract him to release pressure from his right hand towards my left eye. Q Did it work? A It did. Q Were you able to get yourself out of that situation at that point? A It did have a desired effect. Yes. [ 45 ] Cst Golosov then testified that as he tried to reposition himself to come back to his feet, Mr. Walker pulled him back, with Mr.

Walker on the ground and Cst Golosov on his back on top of him but in a chokehold position. While in this position, Cst Golosov was able to use his radio to signal officer in distress. And he was able to start punching Mr. Walker. He landed about 10 close-fisted punches on Mr. Walker’s face and head before his hold loosened on Cst Golosov. Other witness evidence [ 46 ] A witness at trial, Jennifer Bernardin, testified she noted Mr. Walker yelling at McDonald’s staff and refusing to move his vehicle, at least initially. She brought her concerns to Cst Golosov who was nearby.

She testified also to the subsequent interaction between Mr. Walker and Cst Golosov, including that Mr. Walker initially refused to abide by Cst Golosov’s directions. She did not describe the same yelling or similar behaviour toward Cst Golosov as she described about McDonald’s staff. Her last observation was of Mr. Walker dealing with a person she believed was the manager of the McDonald’s restaurant. [ 47 ] The manager of the McDonald’s restaurant, Trung Le, testified at trial. He described that in his first encounter with Mr. Walker he appeared quite angry and was yelling. He asked Mr.

Walker to pull out of the drive-thru line and he did. At that point he described that Mr. Walker’s demeanour “seemed okay”. He reviewed a video that captured part of the events of February 13, 2020. He confirmed the video accurately portrayed Mr. Walker calmly conversing with Mr. Le, after which the two shook hands, then parted. [ 48 ] A number of bystanders testified about witnessing parts of the altercation between Cst Golosov and Mr. Walker. Having considered their evidence, I find little of it assists in understanding the events either leading up to or during the altercation captured

reliably on the surveillance video. Exhibits applied to the trial [ 49 ] A number of photographs of both Cst Golosov and Mr.

Walker were exhibited at trial. [ 50 ] The photographs of Cst Golosov confirm more than trifling or transient injuries, including • A head-shot with his left eye closed but without any apparent swelling or redness at the eye; • A further series of head-shots with both eyes open, the left eye appearing to be mildly more closed, still with no apparent swelling, but with mild redness at the lower eyelid area; • various photos showing redness but no obvious swelling underneath hair on left side of head above and just ahead of his left ear; • a small abrasion at top of Cst Golosov’s head, slightly toward the right. [ 51 ] The photographs of Mr.

Walker confirm injuries as follows: • a significant cut under the right eye with blood down into right cheek area, and abrasion/redness toward right upper eye lid; at the left eye – possible swelling and redness under the left eyelid; • in a further photo, significant redness in right eye, notable as Mr.

Walker is looking to the right; some of the blood seen in the previous photograph is gone but the laceration under the right eye is visible, as is significant purple bruising and swelling; • the left lower eye lid appears more visibly red and swollen in this photo as compared to exhibit 6, but certainly less severely so than the right eye.

The law of self defence and its application [ 52 ] As noted earlier, ss 34(1) and 34(2) of the Criminal Code set out the statutory framework for self defence, as recently interpreted in R v Khill , 2021 SCC 37 . [ 53 ] In Khill the court noted the then-new self-defence provisions “changed the law of self-defence in significant ways by broadening the scope and application of self-defence and employing a multifactorial reasonableness standard” (para 39).

Further, “the defence is now more open and flexible and additional claims of self-defence will be placed before triers of fact” (para 44). [ 54 ] As to s 34(1), the court noted the structure of s. 34(1) is simplified and unified in that the same three basic components or questions arise in all cases of self-defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused’s act must be reasonable in the circumstances.

The reasonableness of the accused’s response to force is assessed by reference to a non-exhaustive list of factors, one of which is “the person’s role in the incident” – whether the accused’s conduct throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge. [ 55 ] The first question under s 34(1), what Khill calls the “the catalyst”, is whether Mr. Walker believed that force was being used against him and was his belief was based on reasonable grounds.

The Crown quite fairly concedes that on the evidence it cannot prove beyond a reasonable doubt that Mr. Walker did not have these beliefs on both the necessary subjective and objective bases. [ 56 ] The second question under s 34(1) – “the motive” – is whether Mr. Walker committed the act for the purpose of defending or protecting himself from the use of force. [ 57 ] The Crown argues that on the evidence I should conclude Mr. Walker was not acting for the purpose of defending or protecting himself from the use of force.

I am unable to agree. [ 58 ] In Khill the court notes the motive is a subjective inquiry that goes to the root of self-defence. If there is no defensive or protective purpose, the rationale for the defence disappears. The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation. (at para 59). The court also notes that an accused’s purpose for acting may evolve as an incident progresses or escalates.

That said, the court goes on to note (at para 61): At the same time, great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their stated purpose. Clarity of purpose is not meant to categorize the accused’s conduct in discrete silos, but instead appreciate the full context of a confrontation, how it evolved and the accused’s role, if any, in bringing that evolution about. [ 59 ] With the law as stated in Khill in mind, I have taken into account the evidence of Mr.

Walker’s own conduct. I accept that the evidence includes what the Crown calls Mr. Walker’s “clear agitation” leading up to the altercation. It includes evidence of Mr. Walker’s rude and dismissive dealings with not just Cst Golosov, but also Ms. Bernardin. And it includes evidence of Mr. Walker’s treatment of McDonald’s staff at least before Mr. Walker subsequently dealt with McDonald’s manager Trung Le. [ 60 ] Along with this evidence, I have considered as well the evidence again of Mr. Walker’s calm and peaceful dealings with Mr.

Le, both as described by Mr. Le and Cst Golosov, and as shown in the video. And I have noted the evidence that after his initial imperviousness to Cst Golosov’s direction to pull into the parking lot, that was exactly what Mr. Walker did. And after his initial refusal to remain in his vehicle, Mr. Walker, after finishing his dealings with Mr. Le, strode over calmly to return to engage in conversation with the officer. [ 61 ] Even seconds later when Cst Golosov began to effect his physical arrest, I find that Mr. Walker is seen on the video to be pulling away from him in a mild fashion.

If it is resistance, is the least resistance. Contrary to Cst Golosov’s subjective concerns, there is nothing objectively consistent with flight from which any inference can be drawn regarding Mr. Walker’s subjective motive – indeed, Mr. Walker’s vehicle was blocked on all sides and was going nowhere. Even with one arm behind his back, Mr. Walker was still then seen conversing with Cst Golosov. That is consistent with Cst Golosov’s evidence that Mr.

Walker was telling him his vehicle documents might be in the cab of his vehicle. [ 62 ] In my view there is nothing in these lead-up events to the altercation that followed, or indeed to any aspect of the altercation as it evolved and progressed, that suggests Mr. Walker had a pre-existing motive to conduct himself subjectively in a manner other than “for a defensive or protective purpose”. I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr.

Walker was not acting for the purpose of defending or protecting himself from the use of force. [ 63 ] The third and key question under s 34(1) arises – what Khill calls “the response” – whether the Crown has proven beyond a reasonable doubt that Mr. Walker’s actions were not reasonable in the circumstances. [ 64 ] The focus here is on the reasonableness of Mr. Walker’s conduct. The question is what an ordinary person who shares Mr. Walker’s attributes, experiences and circumstances would have done in Mr. Walker’s position. There are both subjective and objective considerations. [ 65 ] In determining whether Mr.

Walker’s acts were reasonable in the circumstances, I must consider the relevant circumstances of Mr. Walker , the other people involved, and the act, including, but not limited to, the numerous s 34(2) factors mentioned briefly earlier. Again as explained in Khill (at paras 64-65 ): [64] Through s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether

an act of self-defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to “the relevant circumstances of the person, the other parties and the act”. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused — including size, age, gender, and physical capabilities (s. 34(2)(e)). Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties (s. 34(2)(

f) and (f.1)). [65] Nevertheless, the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time... [ 66 ] I turn then to a consideration of the s 34(2) factors. (

a) the nature of the force or threat; [ 67 ] This is a reference to Cst Golosov’s force or threat. It started with the taking of Mr. Walker’s left arm. Again, Mr. Walker’s resistance to this initial force was mild. Granted, he was not fully compliant – certainly not in a way that came close to meeting Cst Golosov’s expectations. But then again, if only owing to his unlawful arrest, Cst Golosov’s subjective expectations are not the sole measure of the situation. On the whole, I find that objectively Mr.

Walker was acting with restraint during the approximate 14-second period after Cst Golosov’s initial taking of his right arm, and before matters escalated. [ 68 ] The more violent use of force of course was what Cst Golosov described as his “take-down” of Mr. Walker. And as he explained, it did not go as planned. While corralling Mr. Walker by the neck and using his left leg to bring him down, Cst Golosov slipped and lost his lost balance and brought Mr. Walker down onto himself. Both men landed on the hard, icy surface of the parking lot.

I would characterize “the nature of the force or threat” in the take-down to be serious and potentially harmful violence, on both a subjective and objective basis. It was only in response to this aggressive behaviour on Cst Golosov’s part that Mr. Walker began meaningfully to resist. (

b) the extent to which the use of force was imminent and whether there were other means available to Mr. Walker to respond to the potential use of force [ 69 ] The Crown concedes that this s 34(2) factor is not relevant and I agree . (

c) Mr . Walker’s role in the incident [ 70 ] This engages some of the same considerations canvassed already under the second part of the s 34(1) test, already mentioned. The “role in the incident” was also a critical part of the SCC’s decision in Khill . [ 71 ] The majority reasons in Khill for example held that the person’s role in the incident should include more than that person’s “wrongful” role.

The majority states (at para 74) The analytical purpose of considering this conduct is to assess whether the accused’s behaviour throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.

And can include consideration of behaviour that might be classified as unlawful, provocative or morally blameworthy, as long as that conduct is relevant to the ultimate assessment of whether the accused’s act was reasonable [ 72 ] The majority goes on to note, at para 79, what it calls “the innovation” of the person’s role in the incident factor. It notes the factor is meant to be wide-ranging and neutral. It is meant to capture a broad temporal scope and behavioural spectrum – including behaviour that is wrongful, unreasonable or indeed praiseworthy.

Further, at paras 83 and 84: [83] This broad temporal frame allows the trier of fact to consider the full context of the accused’s actions in a holistic manner. Parliament made a choice not to repeat the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault. Rather than a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the “incident” extends to an ongoing event that takes place over minutes, hours or days.

Consistent with the new approach to self-defence under s. 34, judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing the actions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts (see, e.g., R. v. Plaice, 2005 SCC 22 , [2005] 1 S.C.R. 339, at paras. 17-20 ). For example, where both parties are engaged in aggressive and confrontational behaviour, s. 34(2)(

c) does not demand a zero-sum finding of instigation, provocation, cause or consent (paras. 21-22). Parliament has now selected a single overarching standard to weigh the moral blameworthiness of the accused’s act in context: reasonableness. This reflects the complexity of human interaction and allows triers of fact to appropriately contextualize the actions of all parties involved, rather than artificially fragmenting the facts. [84] Just as “role in the incident” may cover an expansive time frame, it also has the potential to sweep up a wide range of conduct during that time frame.

The dictionary definition of “role” refers to “a function or part performed especially in a particular operation or process” (Merriam-Webster’s Collegiate Dictionary (11th ed. 2003), at p. 1079). The notion of an accused’s “role” reflects a contribution towards something, without necessarily suggesting full responsibility or fault. Parliament has selected a phrase at a high level of abstraction, creating a single capacious category to cover the widest possible range of circumstances. As indicated by the wording, the question under s. 34(2)(

c) is what kind of role the accused played in the sequence of events leading to the subject matter of the charge. The phrase “role in the incident” includes acts and omissions, decisions taken and rejected and alternative courses of action which may not have been considered. It captures the full range of human conduct: from the Good Samaritan and the innocent victim of an unprovoked assault, to the initial and persistent aggressor, and everything in between (see, e.g., R. v. Lessard, 2018 QCCM 249 ).

Thus “role in the incident” encompasses not only provocative or unlawful conduct, but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds. As the Crown submits, this does not mean that the reasonableness assessment is “unbounded” or overly subjective. The inquiry is broad, not vague. [ 73 ] Shorn down to its essence perhaps, the majority put it this way, at para 85: Where self-defence is asserted, courts have always been interested in who did what.

The fact that the victim was the cause of the violence often weighed heavily against them. [ 74 ] The court in Khill also notes that the law of self-defence should not condone unnecessary escalation of conflicts (at para 90): [90] When such escalations do occur, particularly in the heat of the moment, the opportunity for mistake and disproportionate responses only grows.

This is recognized in former s. 35 and its imposition of a duty to retreat where the accused was an initial aggressor or provocateur, reflecting the need to balance the accused’s bodily integrity, that of the victim and the wider societal interest in controlling the application of force. Failure to consider the accused’s role in creating or escalating the conflict will invite moral paradoxes, where both attacker and defender may rightly appeal to the new permissible scope of self-defence and yet also find themselves the legitimate target of attack. (H.

Stewart, “The constitution and the right of self-defence” (2011), 61 U.T.L.J. 899, at p. 917; F. Muñoz Conde, “Putative Self-Defence: A Borderline Case Between Justification and Excuse” (2008), 11 New Crim. L. Rev. 590, at p. 599). Where an accused opts to stand their ground or, as in this case, advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact is entitled to account for this role when assessing the reasonableness of the accused’s ultimate act. [ 75 ] With these comments from Khill in mind, with regard to Mr.

Walker’s role in the incident, I find: • As already noted, his initial reaction to being handled by Cst Golosov was mild in nature and showed a degree of restraint; even if I accept Cst Golosov’s subjective concerns for Mr. Walker’s earlier verbal conduct at face value, I find there to be little if any objective basis for his concerns on the whole, and particularly around the time he was affecting his arrest; • After the initial 14 seconds during which Cst Golosov had Mr. Walker’s right arm behind his back, I agree that Mr.

Walker was then met with a violent act of being corralled around the neck and tripped, risking a heavy fall onto an unforgivingly hard, icy surface; • In of all of the circumstances up to that point, I find that it would have come as a surprise if not a shock to Mr. Walker, certainly on an objective basis, that he was being taken down by Cst Golosov in the manner described, and as shown in the surveillance video; • In that context, in my view Mr.

Walker’s reaction – including attempting and to some extent succeeding in landing blows to the left side of Cst Golosov’s head, and in reaching for Cst Golosov’s eyes – were both defensive manoeuvres that were, again in all of the circumstances, reasonable; • As particularly seen in the surveillance video, it was only moments after Mr. Walker’s own aggression that Cst Golosov gained the upper hand by himself gouging at Mr. Walker’s own eyes; • it was then that Mr.

Walker rolled over with Cst Golosov now on top of him and being held in an attempted choke-hold; yet it was also during this part of the altercation that Cst Golosov was able to reach his radio and summons officer in distress, and was then able to free himself enough to rain approximately 10 close-fist punches on Mr. Walker’s face and head, in the midst of which Mr. Walker

loosened his grip and ended his role in the incident; • I have considered whether at the stage he attempted to put Cst Golosov into a choke-hold Mr. Walker was impermissiblyescalating his role in the incident; I find however that in the proverbial heat of the moment Mr. Walker was continuing to defend himselfby attempting to exercise a degree of control over Cst Golosov who had moments earlier violent taken him down to the ground. (

d) whether any of the people involved used or threatened to use a weapon [76] The Crown concedes this is not relevant and I agree. (

e) the size, age, gender and physical capabilities of those involved in the incident [77] The record fails to show material differences between the parties relevant to this s 34(2) factor. (

f) the nature, duration and history of any relationship among the people involved inthe incident, including any prior use or threat of force, and the nature of that force orthreat [78] The only prior relationship is as described, and will be considered under the s 34(2)(f.1). (f.1) any history of interaction or communication between the parties to the incident [79] This factor in my view invites consideration of the interaction between both Mr. Walker and Cst Golosov. It was Mr. Walker’sbehaviour that attracted much attention in the trial evidence and argument.

It is appropriate too however to consider Cst Golosov’sactions, leading up to and including the unlawful arrest. [80] As a peace officer Cst Golosov had a broad duty under 38 of the Police Act 2RSA 2000, c P-17 to “encourage and assist thecommunity in preventing crime” and the “encourage and foster a co-operative relationship between the police service and the members ofthe community”. [81] Those general duties exist however alongside the rights of individuals in the community to be left alone, and even to be leftalone when they are clearly not on their best, albeit non-criminal, behaviour – to invoke the finding of Schutz JA in Gibbons, when theyare being a nuisance. [82] Early on in his evidence, Cst Golosov acknowledged that he had a choice to make when he first came on the scene.

He couldhave moved on, or become involved. He chose to become involved. As noted earlier in these reasons, that involvement resulted in anunlawful arrest for a criminal offence on evidence that, at worst, Mr. Walker had imperiously refused to obey Cst Golosov’s demandsthat he produce his licence and vehicle documentation. I say this mindful of how Cst Golosov characterized the risk – I have quoted fromhis evidence at length earlier in these reasons. I have found little objective basis for his subjective conclusions that in Mr.

Walker he wasdealing with an individual who posed an extreme risk and needed to be “taken down”. Cst Golosov’s approach to the situation iscaptured in his own evidence, as noted: ...to me, like, the easiest way would be -- and that was my experience before and after this stop -- when you're dealing with people likethis who you can't reason with and they think everything is a joke, that the law enforcement is a joke, the laws of -- is a joke, everybodyelse in the public place is a joke, the joke stops becoming a joke when they -- they are under arrest in handcuffs.

Usually, that bringsthem down, and you can finally reason with them. That's -- that's my experience. [83] In sum with regard to the factor of the “history of interaction or communication between the parties to the incident”, I find thatwhile Mr. Walker’s conduct was part of the narrative that led to the altercation, Cst Golosov’s conduct in the same narrative did notcontribute to a calm or peaceful resolution in the relationship between the parties. (

g) the nature and proportionality of Mr.

Walker’s response to the use or threat offorce [84] As noted in R v Billing, 2019 BCCA 237 at para 22, the approach in R v Baxter (1975) (ON CA), 27 CCC(2d) 96 (ONCA) retains some applicability under the new self-defence provisions. [85] Baxter of course is the authority for the proposition that in the circumstances of the case an accused facing a threat may notsubjectively or objectively have time for calm deliberation and cannot be expected to weigh to a nicety the exact measure of forcenecessary to defend himself. [86] Any consideration of Baxter however must exist alongside and indeed within the the law as stated in Khill which rejects aframe-by-frame analysis of an incident but rather requires the court to examine of all of the circumstances. [87] It may not be material to consider that Mr.

Walker got the worst of it – that is clearly the objective evidence before the courtincluding exhibited photographs of injuries. But at the end of the day, the objective evidence also supports the conclusion I have notedparticularly with regard to that point in the altercation that Mr. Walker attempted to place Cst Golosov in a choke-hold, however briefly,before Cst Golosov gained the upper hand once again and brought the altercation to an end. In my view of the totality of the altercation,Mr.

Walker’s conduct was on the whole defensive in nature and proportionate to the threat he faced by Cst Golosov’s own use of force

against him. (

h) whether Mr. Walker’s act was in response to a use or threat of force that Mr. Walker knew was lawful [ 88 ] This s 34(2) factor is not in play in the circumstances of this case. C onclusion [ 89 ] In

summary, with regard to s 34(1(

b) of the self-defence provisions of the Criminal Code , I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Walker was not acting for the purpose of defending or protecting himself from the use of force. With regard to s 34(1)(c), and having considered the factors set out at s 34(2), I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Walker’s actions were not reasonable in the circumstances. Heard on the 25 th day of April, 2023

Summary of reasons delivered orally on the 2 nd day of June, 2023 These written reasons dated at the City of Edmonton, Alberta this 6 th day of June, 2023. Peter Michalyshyn J.C.K.B.A. Appearances: Terry Hofmann for the Crown Rory Ziv for the Accused _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice Peter Michalyshyn _______________________________________________________ The numbers referenced in Paragraph 10 have been changed from “266-269” to “166-169”.