R. v. Kempton, 2022 BCPC 21

Citation: R. v. Kempton 2022 BCPC 21 Date: 20220214 File No: 261970-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. JONATHAN KEMPTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Crown: S. Gerrie Counsel for the Defendant: M.K. Woodall Place of Hearing: Vancouver , B.C Dates of Hearing: February 7, 8, 9, 10, 2022 Date of Judgment: February 14, 2022

[ 1 ] THE COURT : These are my oral reasons for decision. The accused, Jonathan Kempton, is charged in a four-count indictment with the following offences: assault with a weapon, to wit a vehicle, contrary to s. 267 (

a) of the Criminal Code ; assault with a weapon, to wit a police service dog, contrary to s. 267 (

a) of the Criminal Code ; obstruct, pervert or defeat the course of justice by making a false or misleading statement in relation to VPD file 2019-88024, contrary to s. 139(2) of the Criminal Code ; and last, dangerous operation of a motor vehicle, contrary to s. 320.13(1) of the Criminal Code . [ 2 ] At all material times the accused was employed and on duty as a VPD officer with certification as a dog handler. The complainant in relation to the assault charges is Christopher Ian Douglas Swain.

The Assaults with a Weapon and Driving Offences [ 3 ] The facts are straightforward in relation to the alleged assaults with a weapon and dangerous driving offences. I have heard from a number of police officers, Mr. Swain, and the accused, and had the benefit of CCTV video evidence that captured the material aspects of the incident. Neither the Crown nor the defence called expert evidence on this trial. [ 4 ] On May 9, 2019, the complainant, Mr. Swain, and an associate, Mr. Harrop, attended at the Home Depot on Terminal Avenue in Vancouver, British Columbia.

They were observed by an off-duty police officer and a loss prevention officer committing the offence of theft. The item in question was a drill bit set valued at $200. The off-duty police officer called an on-duty police officer with his complaint. As a result a number of officers attended, including two officers with their service dogs: Constable Raffele with Rocco and the accused with Jocko. [ 5 ] Both suspects left the Home Depot and fled on their bicycles. The first suspect, Mr. Harrop, was arrested by Constable Raffele without incident. Mr.

Swain was directed by Constable Raffele to stop or his dog would be released. Mr. Swain replied to go ahead and release the dog. Mr. Swain then sped away on his bicycle. He was not wearing a helmet. [ 6 ] Mr. Swain was chased by Police Service Dog Rocco across Terminal Avenue to Glen Drive and onto Evans Avenue. Rocco was gaining on him and Mr. Swain threw a satchel bag at him to slow him down, and then kicked at him. The satchel bag was later found to contain the stolen drill set. [ 7 ] By this time, the accused was chasing Mr. Swain in his SUV with his emergency lights flashing.

The accused could not recall if the emergency siren was also engaged. Despite Mr. Swain’s denials in his evidence, I find that Mr. Swain was aware that the accused was chasing him and wanted him to stop to be arrested. After making the turn onto Evans Avenue, the accused tried to cut Mr. Swain off but was unsuccessful at stopping him. PSD Rocco was called back by Constable Raffele, who pulled up into the area. [ 8 ] Shortly after making the turn onto Evans Avenue, Mr. Swain made a sharp right turn into the driveway of a parking lot at 955 Evans Avenue and moved to his left.

The accused made a similar sharp turn into the parking lot in his pursuit of Mr. Swain, intending to impede continued progress. The SUV and the bicycle then collided, causing Mr. Swain to fall off his bicycle onto the pavement. Mr. Swain landed on his left shoulder, grabbed his shoulder briefly, and got up on his feet with his back to the SUV in a position that could indicate intended flight. [ 9 ] At virtually the same time, the accused exited the SUV and let PSD Jocko out. Without warning to Mr. Swain, the accused gave the command to Jocko to apprehend by biting the suspect.

Again, at virtually the same time, Mr. Swain turned towards the accused and police service dog and held his hands out in front of him with his palms facing out, suggesting a willingness to be compliant. The service dog was already on the move, advanced further and bit down on Mr. Swain’s left arm. The initial bite caused Mr. Swain to fall to his knees. [ 10 ] The accused walked towards Mr. Swain and the police service dog. The accused pushed Mr. Swain down onto his stomach, grabbed his right arm, and held it against his back and put his left knee on his back. After only a few seconds the accused released Mr.

Swain’s arm, got up, and placed a leash on the police service dog, thereby gaining better control of the dog. [ 11 ] An apparent struggle ensued between Mr. Swain and the service dog. In the process of that struggle Mr. Swain rolled over onto his back. While on his back Mr. Swain used his free right hand to grab or punch at the dog’s face. The accused pulled on the police service dog’s leash, and I accept the accused’s statement from his occurrence report that he directed Mr. Swain to stop fighting and the dog would be released. Mr.

Swain was dragged a short distance and this caused him to roll back over onto his stomach. [ 12 ] Shortly after other officers arrived, and the accused was subdued by Constable McGuinness with force. The application of the bite lasted for approximately 60 seconds. In the process Mr. Swain suffered an injury to his left arm that required 19 stitches to close. [ 13 ] Mr. Swain admitted that he had been arrested numerous times previously and that in his experience one indicates compliance to the police by getting to the ground in a prone position.

He explained that after being thrown off his bicycle he was dazed and confused so did not follow that process, and instead of staying down on the ground he stood up. He also advised that he had consumed heroin that day. The Obstruction Offence [ 14 ] For the offence of obstruct, pervert or defeat the course of justice by making false or misleading statements, the Crown relies on statements of the accused in his reports. [ 15 ] The accused completed a General Occurrence report regarding this investigation. It is marked as Exhibit 1, Tab F. In the report, he notes that he was in pursuit of Mr.

Swain to arrest him for theft. He also notes that Mr. Swain was fleeing on a bicycle and being pursued by Police Service Dog Rocco, who belonged to Constable Raffele. In the course of that pursuit Mr. Swain threw bags at the dog and kicked at him. The accused writes that he needed to stop Mr. Swain, as they were approaching an area with some pedestrians and he did not want Mr. Swain to disappear into the crowd. The accused notes that Mr. Swain was arrestable and displayed violent behaviour

towards the police service dog. Rocco was called back by Constable Raffele. [ 16 ] The accused next writes: PC 2144 Kempton looked up and observed Swain continuing to flee westbound. PC 2144 Kempton closed the distance and swerved in front of Swain in order to prevent his continued attempt to flee from police. Swain lost control as he tried to turn away from the police vehicle and made contact with the front bumper of the truck. Swain fell to the ground, out of view of the PC. PC 2144 Kempton immediately stopped his vehicle.

As Swain was arrestable, was actively fleeing from members and showed clear signs of violence towards PSD Rocco, PC 2144 Kempton opened the rear truck door to deploy PSD Jocko. As PC 2144 Kempton stepped out from the front of the police SUV he observed Swain beginning to get up. PC 2144 Kempton gave PSD Jocko the command to deploy which he did, making contact with Swain's left wrist, Swain attempted to roll away, and PSD Jocko re-gripped onto Swain’s left forearm where he maintained a hold of him. PC 2144 Kempton kept PSD Jocko on Swain, as he was alone and could not safely move in to handcuff the suspect.

Swain began to punch Jocko’s face and attempt to pry open his mouth. PC 2144 Kempton directed Swain to stop fighting with the dog, and if he complied the dog would be released. Swain continued to fight, thus PC 2144 Kempton pulled PSD Jocko back with the leash in order to get him away from Swain’s free hand. PC 2905 McGuinness arrived on scene; thus PC 2144 Kempton moved up, got control of PSD Jocko’s collar and gave him the command to release. PSD Jocko complied. Swain was safely taken into custody.

PSD Jocko was put back into the police SUV. [ 17 ] In his In his Dog Application Report prepared for internal VPD purposes, the accused writes: Swain continued to flee; thus PC 2144 Kempton drove up and cut him off, causing him to lose control of his bicycle and run into the front bumper of the police SUV. Swain was out of view and PSD Rocco had returned to PC Raffele back at Glen and Evans. PC 2144 Kempton deployed PSD Jocko, who made contact with Swain as he was attempting to get up. PSD Jocko held onto Swain's left forearm until units could arrive to place handcuffs on him.

Swain was taken into custody with the aid of PCs arriving on scene. [ 18 ] Regarding the Dog Application Report, I accept the accused’s evidence that the form only allows a limited number of characters so his

summary of the incident had to be condensed. General Principles of Law [ 19 ] There are two principles fundamental to every criminal trial: the presumption of innocence and the requirement that the Crown prove its case beyond a reasonable doubt. [ 20 ] The presumption of innocence remains with an accused throughout the trial. It is defeated only if after considering all of the evidence, the court is satisfied beyond a reasonable doubt of the accused’s guilt.

The Crown’s burden of proof beyond a reasonable doubt applies to each essential element of each offence. [ 21 ] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and common sense, and that logically arises from the evidence or absence of evidence. Beyond a reasonable doubt is an exacting standard that is more than proof on a balance of probabilities but less than proof to an absolute certainty. As the Supreme Court explained in R. v.

Starr , 2000 SCC 40 at paragraph 242 , it lies along that measure “much closer to ‘absolute certainty’ than to ‘a balance of probabilities’”. Proof beyond a reasonable doubt is achieved if, after considering the totality of the evidence, the court is sure that the accused committed the offence charged or an included offence. [ 22 ] There is no principle of law that requires a trier of fact to believe or disbelieve a witness' testimony in its entirety.

On the contrary, a trier may believe none, part or all of a witness' evidence, and may attach different weight to different parts of a witness' evidence. [ 23 ] The accused testified. The principles from the leading case of WD apply. First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, if, after careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.

Fourth, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused. [ 24 ] The offence of assault is defined in s.265 of the Criminal Code as follows: 265(1) A person commits an assault when (

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

b) he attempts or threatens, by

an act or a gesture, to apply force to another person if he has or causes that other person to believe on reasonable grounds that he has present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [ 25 ] Assault with a weapon is set out in s. 267 (

a) of the Criminal Code .

267. Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on

summary conviction who, in committing an assault (

a) carries, uses or threatens to use a weapon or an imitation thereof. [ 26 ] The Crown concedes that there were reasonable grounds for the arrest of Mr. Swain.

Section 25 of the Criminal Code allows an officer to use as much force as necessary to effect an arrest. However, s. 25(3) states that a person is not justified in using force that is intended or is likely to cause death or grievous bodily harm except for self-preservation. [ 27 ] The leading case on the police use of force is R v Nasogaluak 2010 SCC 6 . The court held that the use of force that a police officer may use in executing their duties is constrained by the principles of proportionality, necessity and reasonableness.

Further, that the protection of s. 25(1) will apply where officers “use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves.” [ 28 ] To prove obstruction of justice the crown must prove that the accused committed

an act that tended to defeat, pervert or obstruct the course of justice in a judicial proceeding, and that the offender had the intent to do so. See R v Beaudry 2007 SCC 5 at paragraph 52 . [ 29 ] To prove dangerous driving the crown must prove the actus reus , that is, that the driving was dangerous to the public having regard to the factors set out in s. 320 of the Criminal Code , and the mens rea , that is, that the accused displayed a marked departure from the standard of a reasonable person.

Analysis The Assaults with a Weapon and Driving Offences [ 30 ] I will first address the credibility of the principal witnesses, Mr. Swain and the accused. [ 31 ] Mr. Swain was not a credible or reliable witness for a number of reasons. These include that he denied not understanding why the police were chasing him since he had done nothing wrong. However, this is inconsistent with his guilty plea to the offence of theft and the finding of the stolen drill set in the satchel bag that he threw at the police service dog. Mr. Swain also denied that he was aware that the accused was pursuing him in the SUV.

This is inconsistent with the attempt to impede Mr. Swain with the SUV prior to the collision incident and the flashing lights on the SUV. Accordingly, I am unable to accept Mr. Swain’s evidence on any material point unless consistent with other evidence. [ 32 ] I found the evidence of the accused to be credible and reliable. His recollection of the incident was descriptive and comprehensive, and consistent with the video evidence. He was unshaken on cross-examination. [ 33 ] I have now watched the video of the collision between the SUV operated by the accused and the bicycle operated by Mr.

Swain numerous times, and considered all the viva voce testimony. [ 34 ] It is evident to me that the collision between the SUV and the bicycle was not intentional but accidental. It also appears to have been at low speed and of minimal impact. Mr. Swain made a sharp right-hand turn into the parking lot but then travelled slightly to his left, and at the same time the accused turned his vehicle to the right intending to impede Mr. Swain’s escape. In the second or two that this occurred, the accused could not have anticipated Mr. Swain’s movement to the left.

The parties collided with each other as opposed to one colliding with the other such as in a rear-end collision. [ 35 ] Although the accused employed his SUV in an attempt to impede Mr. Swain’s escape from lawful arrest and an accidental collision ensued, the impact was minimal and not intended or likely to cause death or grievous bodily harm. The accused’s driving, although coming with some risk, was not particularly dangerous or reckless. I accept as truthful the evidence of the accused that he did not intend to collide with Mr. Swain. [ 36 ] I accept the evidence of the accused that once Mr.

Swain stood up after the collision, he believed based on the history of what occurred that Mr. Swain would not obey police commands and attempt to flee. [ 37 ] However, the difficult issue is whether this was objectively reasonable and consistent with use of force standards. Crown submits that on exiting the SUV the accused should have assessed or reassessed what level of force was required to apprehend Mr. Swain since there had been a significant intervening event, that being the collision that caused Mr. Swain to be separated from his bicycle.

Further, if the accused had taken a short pause, it would have become apparent that Mr.

Swain intended to surrender. [ 38 ] In considering this issue, I bear in mind the following principles: police actions are not to be judged against a standard of perfection; some allowance must be made for an officer facing a dynamic situation and misjudging the degree of force necessary to restrain a prisoner; there is no obligation on an officer to impose the least amount of force which might achieve their objective; it is often necessary for police officers to take control of a situation as quickly as possible to prevent an escalation; and finally, an officer cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course. [ 39 ] In all of the circumstances and with the benefit of the video evidence, it is quite possible that Mr.

Swain was ready to surrender and to follow verbal commands, and perhaps it was an error in judgment for the accused not to have paused and offer a verbal warning. [ 40 ] However, I cannot conclude that the officer’s decision to release the police service dog was objectively unreasonable in all of the circumstances. It is also quite possible that any delay in sending the police service dog would have resulted in Mr. Swain fleeing on foot, based on the history of his flight and aggressive behaviour in fighting off the first police service dog, Rocco.

[ 41 ] Accordingly, I find that the deployment of the police service dog was reasonable, necessary and proportionate. I accept the accused’s evidence that a prior warning was impractical in the dynamics of the situation, and the police service dog was removed as soon as reasonably possible. Even with the police dog on him Mr. Swain continued to struggle and resist arrest, which led to further force being applied. [ 42 ] Mr. Swain’s behaviour throughout this incident was exactly as described by defence counsel as evidencing a “catch me if you can” mentality.

Although the dog bite lasted for approximately 60 seconds, I accept the explanation of the accused for maintaining the bite for that period of time. In particular, the accused required the assistance of another officer to safely control and arrest Mr. Swain. I found the accused’s explanation to be reasonable and the level of force proportionate to the circumstances. [ 43 ] I also find that the accused’s use of force was consistent with the National Use of Force Framework and BC provincial policing standards, including the threshold and circumstances of police dog use.

The accused was in the lawful exercise of his duties at all times in relation to this matter and in complete compliance with the required standards. [ 44 ] I find as a fact that Mr. Swain was fleeing from his lawful arrest and there were reasonable and ample grounds for his apprehension with an intermediate level of force that includes a police dog bite. I find as a fact that no lesser use of force would have been appropriate or effective. [ 45 ] At all material times Mr. Swain was a person for whom there were reasonable grounds to lawfully arrest for theft and obstruction.

After considering all of the evidence, I am satisfied that the accused was justified in the use of force employed to effect the arrest of Mr. Swain, and the force used was necessary, reasonable and not excessive in all of the circumstances. I am not satisfied that the use of force in this case was intended or likely to cause death or grievous bodily harm to Mr. Swain. [ 46 ] Accordingly, the offences of assault with a vehicle and assault with a police service dog are dismissed. [ 47 ] The offence of dangerous driving is also dismissed.

The Crown has failed to prove that the accused was driving his vehicle in a dangerous manner. I appreciate that Mr. Swain could be perceived as vulnerable in the circumstances as he was on a bicycle and not wearing a helmet. However, I find as a fact that the accused’s driving was not a marked departure from the norm considering the circumstances. [ 48 ] I also find, although not necessary for my conclusion here, that Mr. Swain voluntarily assumed risk of physical harm when he fled from the police on a bicycle and not wearing a helmet or other protective gear.

I find that at all times the accused drove his police vehicle in a safe and reasonable manner. As the Supreme Court of Canada held in R v Beatty 2008 SCC 5 , paragraph 34 : If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. [ 49 ] I find that the driving in this case was not particularly dangerous. It is just unfortunate that it resulted in a minor collision. I find that the accused is not morally blameworthy in the circumstances.

The Obstruct Offence [ 50 ] This leaves the offence of obstruct, pervert or defeat the course of justice by making false or misleading statements in relation to VPD file 2019-88024, contrary to s. 139(2) of the Criminal Code . [ 51 ] I have carefully considered the statements of the accused and his evidence in both direct and cross-examination, and I am not satisfied that the Crown has proved that the accused intended to pervert, obstruct or defeat the course of justice, or that he made any false or misleading statements, or that he made any substantive omissions. [ 52 ] The accused wrote his report shortly after the event and did so to the best of his recollection, and from his perspective and field of view.

The accused did not have the benefit of a video to examine the arrest of Mr. Swain to ensure his recollection of how the incident unfolded matched a frame-by-frame armchair analysis. Nonetheless, even with the benefit of a frame-by-frame analysis I am unable to find that the accused’s words are false or misleading, or that any substantive omissions were made. In fact, I find his reports to be substantively accurate. Accordingly, I find the accused not guilty of an offence contrary to s. 139(2) of the Criminal Code . [ 53 ] In

summary, the Crown has failed to prove any of the offences to the requisite standard of proof beyond a reasonable doubt, and as such the accused is acquitted of all charges and is free to go. (REASONS CONCLUDED)