R. v. Unrau, 2021 BCPC 100

Citation: R. v. Unrau 2021 BCPC 100 Date: 20210311 File No: 25382-1 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ERIC ANDREW UNRAU ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. MILLER Counsel for the Crown: H. Magnin Counsel for the Defendant: N. McDougall Place of Hearing: Vancouver , B.C. Date of Hearing: March 8, 9, 10 and 11, 2021 Date of Judgment: March 11, 2021

A Corrigendum was released by the Court on April 23, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT : The accused is now a 26 year old member of the RCMP currently stationed in Manitoba. He is charged with an assault upon George Reid on September 4, 2018, when the accused was aged 24 and stationed at Hazelton, B.C. The delay in bringing this matter to trial was due to circumstances that had nothing to do with the Crown or the defence.

The trial was held in Vancouver over the last four days. [ 2 ] The charge arises from what the Crown says were the unjustified actions of the accused at the Hazelton detachment when the complainant was his prisoner, following an arrest for causing a disturbance shortly before. The accused had arrested the complainant because of a civilian complaint and the accused's own observation of the complainant's behaviour and level of apparent alcohol intoxication.

The parties agree that the arrest was lawful. [ 3 ] The complainant was somewhat resistant to the arrest in that he tried to talk the accused into an alternative action, and he was somewhat physically uncooperative in being handcuffed and placed in the police car, although both those things were accomplished. The accused then drove to the nearby detachment office with the complainant in the back.

Upon arrival the complainant was removed from the back seat in the parking lot and he and the officer walked to an entrance to the detachment building. [ 4 ] It was at this point (arrival) that the video recording of these events began. Almost all the relevant events were videorecorded on closed-circuit television. Four files or clips were put on a flash drive and entered as Exhibit 2 at trial. That video evidence contains well captured video images of just about everything that concerns this trial.

The other evidence I heard (apart from a few minor witnesses that added pretty much nothing) was from two "use of force experts" and the accused. [ 5 ] The video shows (and the accused confirms) that when the accused and the complainant entered the booking-in area, the complainant was handcuffed behind his back while the accused walked behind him. The accused was not holding onto the complainant at that time. The complainant expressed a wish to see a lawyer. [ 6 ] They arrived at the booking-in counter and the accused told the complainant to sit on a nearby bench while the accused filled out some paperwork.

The accused pointed to that bench, the complainant did not comply and asked the accused if he thought he was tough. The accused says (reasonably) that he took that comment as a threat.

The accused then pushed the complainant with his hand on the complainant's chest in an effort to get him to sit on that bench. [ 7 ] The accused explained, and I accept it, that he wanted the complainant to sit on the bench while he, the accused, filled out the required documentation so as to minimize or eliminate any danger the complainant presented to the accused. [ 8 ] You can see a couple of things relevant to this on the video. The complainant was drunk and quite bigger than the accused. The area in question is quite small and somewhat cramped.

You can see, and the accused confirmed, that the accused pushed on the complainant's chest a second time with the same reaction, and then possibly a third time. [ 9 ] It was at the time of this final such push (second or third) and resistance that the accused says he felt the complainant beginning to lean in toward him and thought he was going to assault him in some fashion, despite the handcuffs. The accused said he decided to force the complainant to the ground in order to prevent the complainant from assaulting him and to gain control of his prisoner.

He says he grabbed him by the back of the neck and with the other hand endeavoured to break or guide the fall so as to prevent serious injury. However, the complainant's own actions and momentum caused his fall to be much faster than expected. The complainant hit his head on the booking counter and injured it. [ 10 ] Then others arrived, looked after the complainant, got him up and into a cell.

Someone called for an ambulance, it arrived shortly and took the complainant to a nearby hospital where the complainant was treated, then returned to cells. [ 11 ] The parties are agreed that the accused's actions up until he grabs the complainant to get him onto the ground are lawful. It is that action that is said to constitute the crime charged. Defence counsel says sections 25 and 34 provide the defence for his client, and that the Crown must prove beyond a reasonable doubt that those sections do not apply in order to gain a conviction.

Crown counsel agrees; so do I. [ 12 ] I heard quite a bit of evidence from two "use of force experts"; one for the Crown, the other for the defence. That evidence was helpful and I take it into account, but it is in no way determinative. Like any juror on any case, I view all the evidence as an ordinary person and apply ordinary common-sense and my own life experience.

While, as I said, the expert evidence was helpful, the weight I placed on those expressed opinions might be less than either counsel expected or hoped for. [ 13 ] I am not here to decide if what the accused did was consistent with training (though I do take that into account), nor am I to decide if what he did was within the policy or guidance provided in the two use of force models provided to me.

In the circumstances before me as revealed by the evidence, I have to ask myself if the accused has at least created a reasonable doubt when he says he felt the complainant was not going to comply with his order that he, the complainant, sit on the bench and/or when he says he thought the complainant was going to assault him (I think the phrase used was "bullrush"). [ 14 ] I do believe both those things. In fact, at least on the balance of probabilities, I believe the accused anticipated further resistance by the complainant that would have included an assault upon the accused.

I have also concluded that the accused's decision to put the complainant to the ground to gain control over him and prevent an assault was reasonable and proportionate. It was necessary.

[ 15 ] The complainant's behaviour throughout his encounter with the accused had been belligerent, resistant, threatening, and defiant. While the accused's naiveté as a two-year officer might have led him to underestimate the danger presented by the complainant until the actual moment under consideration, the complainant had been signalling that danger throughout the encounter.

He argued, negotiated, resisted by not proceeding toward the building when told to, threatened by word and resistance or gesture, and finally by his actions at the bench. [ 16 ] The accused's decision to put the complainant on the ground was also reasonable and proportionate. It was necessary. It was those things, even though he could have done other things in response to the complainant's actions. Crown says he could have called for help or he could have employed a different technique.

I do not accept that it is the court's job (at least not in every case) to second-guess a police officer in a situation like this. He decided to put the complainant on the floor and endeavoured to mitigate the potential harm of that action. I accept both those things as true. The complainant fell as hard and fast as he did because of his own actions. What the accused did was necessary. It was reasonable and proportionate.

The result was not foreseeable by the accused. [ 17 ] Accordingly, I have concluded that s. 25(1) applies here so that the accused's actions were justified. [ 18 ] Many of my findings above also apply to the question of whether or not the Crown has proven beyond reasonable doubt that s. 24 does not apply. For that

section to apply, I must conclude (or rather have a doubt) first, that the accused believed on reasonable grounds that force was being used or threatened to be used against him. I do conclude that.

The complainant's entire behaviour from the time of first contact with the accused made it reasonable for the accused to believe when the complainant was pushing back at him when he was trying to get the complainant to sit and when that resistant force was increasing, that the complainant was about to push him into the counter and down. [ 19 ] I next have to conclude (or have a doubt) that the act that is the subject of the charge -- that is to say, grabbing the complainant by the neck to push him down to the floor -- was done to defend or protect himself from the force or threat of force.

Again, I do conclude that. It is clear from all the evidence that the accused wanted to place the complainant on the ground so as to avoid being assaulted by him, as well as to regain control. [ 20 ] Finally, I must conclude (or have a doubt) that what the accused did -- that is to say, grab the complainant to push him to the floor -- was reasonable. Again and finally, I do conclude that. The accused was dealing with a belligerent, threatening drunk who was much larger than he was. The handcuffs provided little help in the moment. Calling for help was no real option at that time, even if it had been earlier.

Employing a different technique to get this big, threatening drunk down and under control just does not seem reasonable. [ 21 ] In

summary, even if s. 25 did not exist, I have more than a reasonable doubt created by s. 34, so I find the accused not guilty. [ 22 ] I want to thank both counsel for excellent work you did on this file. Good counsel work always makes my job a pleasure. Thank you very much, both of you. [ 23 ] CNSL. H. MAGNIN: Thank you, Your Honour. [ 24 ] CNSL. N.

MCDOUGALL: Thank you, Your Honour. [ 25 ] THE COURT: You are free to go, sir. (REASONS CONCLUDED) CORRIGENDUM - Released April 23, 2021 In the Reasons for Judgment dated March 11, 2021, the following changes have been made: [1] Paragraph 8 should read: You can see a couple of things relevant to this on the video. The complainant was drunk and quite bigger than the accused. The area in question is quite small and somewhat cramped.

You can see, and the accused confirmed, that the accused pushed on the complainant's chest a second time with the same reaction, and then possibly a third time. [2] Paragraph 10 should read: Then others arrived, looked after the complainant, got him up and into a cell. Someone called for an ambulance, it arrived shortly and took the complainant to a nearby hospital where the complainant was treated, then returned to cells. _____________________________ The Honourable Judge R. Miller Provincial Court of British Columbia