R. v. Robinson, 2020 BCPC 122

Citation: R. v. Robinson 2020 BCPC 122 Date: 20200622 File No: 27396-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. BRENDAN JOHN ROBINSON TROY MICHAEL ROBINSON BRIAN BENJAMIN ALLEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: D. Prium Counsel for the Defendant:: B. Robinson K.S. Westlake, Q.C. Counsel for the Defendant: T. Robinson D.J. Song Counsel for the Defendant: B. Allen L. Fumano Place of Hearing: Vancouver , B.C. Dates of Hearing: January 15, 16, 30, 31, February 10, 2020 Date of Judgment: June 22, 2020

A Corrigendum was released by the Court on June 23, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On October 9, 2018, Constable Malm and Constable Graham conducted a traffic stop. During the stop there was an altercation that resulted in Constable Graham suffering a fractured eye orbital, a nasal fracture, a concussion, bruises and scrapes. [ 2 ] The accused are now charged with the following:

a) Count 1 – That Brendan Robinson and Troy Robinson assaulted Constable Graham, a police officer, thereby causing bodily harm.

b) Count 2 – That Brian Allen and Troy Robinson willfully obstructed a peace officer.

c) Count 3 – That Brian Allen possessed stolen property (no evidence motion was granted at the close of the Crown’s case and the charge was dismissed). [ 3 ] A trial was held and the Crown called a number of witnesses. Troy Robinson testified in his defence whereas Mr. Allen and Brendan Robinson exercised their right to remain silent. Several exhibits where filed including: photographs, video clips and admissions.

The video clips are from surveillance systems, two bystanders (Lakhani Video and Johnson Video) a Coast Mountain bus and Troy Robinson (Troy Video). (As Troy Robinson and Brendan Robinson share a common surname I will be using their first names with their surnames.) [ 4 ] In deciding this matter, I have considered all of the evidence, however, I have confined my review to the evidence of Constable Malm, Constable Graham, Troy Robinson and to some but not all of the video clips.

This is because the evidence from the other witnesses and some of the video clips relate to peripheral events and do not assist in determining the facts that are relevant to the issues.

ISSUES [ 5 ] The issues to be determined are: 1) Was Constable Graham in the lawful execution of his duty when he was struck by Brendan Robinson? 2) If Constable Graham was not in the lawful execution of his duty, was Brendan Robinson acting in self-defence when he struck Constable Graham? 3) Does the evidence prove beyond a reasonable doubt that Troy Robinson assaulted Constable Graham? 4) Does the evidence prove beyond a reasonable doubt that Troy Robinson and Mr. Allen obstructed Constable Malm?

EVIDENCE The traffic stop [ 6 ] On October 9, 2018, Constable Malm and Constable Graham were on duty when they saw an SUV drive contrary to a traffic control sign. The officers also noticed that an “N” was displayed on the rear of the SUV and that it contained three occupants. The significance of the “N” was it signified that the driver was permitted only one non-relative passenger.

The officers decided to stop the SUV in order to investigate the driving infraction to determine if the driver was complying with the requirements of an “N” designation. [ 7 ] The officers activated their emergency equipment and stopped the SUV without incident. Constable Malm went to driver’s side and Constable Graham went to the front passenger window. Inside of the SUV was Mr. Allen who was in the driver’s seat, Brendan Robinson was in the front passenger seat and Troy Robinson was in the rear seat. [ 8 ] Exhibit 1- video 1, (surveillance video) recorded the pull over and stop.

At 9:53:33 of the video, Constable Malm walks to the driver’s door and at 9:53:83 he is interacting with Mr. Allen. At 9:57:45, Constable Malm walks away from the driver’s door and to the rear of the SUV. At 9:58:15, Mr. Allen exits the SUV and walks around the front SUV. As he moves he momentarily pauses in the area of the front driver’s side. At 9:58:46, the driver’s side rear door opens and Troy Robinson exits and walks quickly around the rear. Constable Malm [ 9 ] Constable Malm has been a police officer for four years.

His experience has been limited to working as a patrol officer. [ 10 ] As for the incident, once the SUV stopped Constable Malm approached the driver and in a polite voice he stated, “Hello, Vancouver Police.” The driver, who was later identified as Mr. Allen, responded in a raised voice by asking why he was being pulled over. [ 11 ] The forcefulness of Mr. Allen’s response surprised Constable Malm. He told Mr. Allen the reasons for the stop and during the interaction Constable Malm noticed that Mr.

Allen’s movements were erratic, that he was not following the conversation, that he appeared agitated, that his pupils were small, that he was sweating and that a vein in his forehead was bulging. These observations caused Constable Malm to suspect that Mr. Allen was intoxicated by drugs. [ 12 ] Constable Malm asked Mr. Allen for his driver’s licence. Mr. Allen searched the driver’s side compartment and the centre

console. He then began patting his body. Throughout, Mr. Allen’s hands were moving quickly and aggressively. While this was occurring, Constable Malm could hear Brendan Robinson shouting and he saw him reach toward the floorboard and under his seat. At one point, Brendan Robinson shouted, “You don’t have the grounds to stop him,” and “He didn’t do anything wrong.” [ 13 ] The behaviour of Mr. Allen and Brendan Robinson caused Constable Malm to develop significant officer safety concerns. He felt that Mr. Allen and Brendan Robinson were aggressive and hostile.

He felt that their movements were erratic, he was concerned that he could not see where Brendan Robinson was reaching and he was under the impression that Brendan Robinson was trying to encourage the others to act up. Constable Malm told the occupants that he was feeling uncomfortable and that they needed to stop moving. Brendan Robinson responded by shouting, “He didn’t do anything wrong,” and he called Constable Malm a “fucking goof.” Mr. Allen commented in a somewhat aggressive voice that he was looking for his wallet. [ 14 ] Constable Malm felt that the word “goof” was significant.

In this regard, he associated the term with persons who are potentially involved in criminal activity and who have a potential for violent behaviour. The use of the word, “goof”, the occupants’ aggressiveness and their failure to follow directions caused Constable Malm to fear that things would violently escalate. [ 15 ] Shortly, after the above, Constable Malm told Mr. Allen to stop moving and that he was making him uneasy. Constable Malm originally testified that Brendan Robinson responded that he (Constable Malm) was making him nervous.

However, after reviewing his statement Constable Mam attributed the comment to Troy Robinson. After the comment, Mr. Allen suddenly opened the driver’s door reached down to the side of his seat and he retrieved his wallet. He then slammed the door and stated he found his wallet. Constable Malm told Mr. Allen to stop moving. [ 16 ] Mr. Allen ultimately produced his driver’s licence and confirmed his identity. Constable Malm noticed a vein bulging on Mr. Allen’s forehead and he asked why he was agitated.

Then, and while still standing at the driver’s door, Constable Malm watched as Brendan Robinson lit a cigarette and exhaled smoke into Constable Graham’s face. [ 17 ] Throughout the interaction, Troy Robinson had positioned himself so he was sitting forward in his seat (rear seat) and leaning on the console between the front seats. At times, Troy Robinson joined the exchange and it was Constable Malm’s perspective that he was the least angry of the three.

At one point, Troy Robinson told Constable Malm that he was filming what was occurring. [ 18 ] Eventually, Constable Malm made his way back toward his police car where he intended on radioing for additional officers. Prior to reaching his police car, Constable Malm heard Constable Graham screaming words to the effect of, “Do not roll up your window.

You’re making me feel unsafe.” Constable Malm moved around to the passenger side of the SUV so he could see what was occurring and when he reached the area of the rear wheel, he saw that the front passenger window was closed and he could hear the occupants of the SUV shouting. He then saw Constable Graham open the front passenger door and almost immediately thereafter enter the vehicle. Constable Malm was unsure if Constable Graham was pulled into the vehicle or if he entered on his own. [ 19 ] Constable Malm radioed for urgent assistance and he moved forward to help Constable Graham.

When he reached Constable Graham he grabbed the back of Constable Graham’s belt and pulled. Constable Malm described Constable Graham’s body as being on top of Brendan Robinson and that Brendan Robinson’s right hand was touching the upper right chest area of Constable Graham’s clothing. He testified that Brendan Robinson was punching and repeatedly driving his right elbow toward Constable Graham. He also observed that Troy Robinson was punching Constable Graham.

It was Constable Malm’s impression that Constable Graham was trying to pull back from the SUV. [ 20 ] During the struggle, the front passenger door was forced open and it contacted a thin sheet metal construction sign. Mr. Allen responded by yelling about his door. He then got out of the SUV and moved around the front while holding his phone in a position to suggest that he was filming. As he moved he shouted something to the effect of, “Get off of my friend, you goof.” Troy Robinson said something to the effect of, “This is bullshit.

Fuck you.” [ 21 ] Troy Robinson then opened the rear passenger door open and it struck Constable Malm, who pushed it shut. Troy Robinson then slid across the rear seat, exited out of the rear driver’s side door. He then sprinted around the rear of the SUV. It was Constable Malm’s belief that Troy Robinson was coming around to assault him so he shouted at Troy Robinson and he pushed him. Constable Malm then turned toward the SUV and he saw Mr.

Allen standing on the exterior side of the open front door and swing his left arm downward toward Constable Graham, who was on the other side of the door and bent over with his upper body inside the passenger compartment of the SUV. [ 22 ] Constable Malm moved toward Mr. Allen who stepped away from the open door. Constable Malm told Mr. Allen to get back and he pushed him. Constable Malm wanted to create space so that he could assist Constable Graham. Constable Malm noticed that Mr. Allen and Troy Robinson appeared to be filming the events.

The filming did not concern Constable Malm, rather, he was concerned that Mr. Allen and Troy Robinson would assault him if he turned to assist Constable Graham. As such, he pushed them and repeatedly told them to get back. [ 23 ] Despite Constable Malm’s efforts, Troy Robinson and Mr. Allen continued to move toward him. Constable Malm felt swarmed, terrified and helpless. He continued to try and create space by pushing them and telling them to backup. It was Constable Malm’s view that Troy Robinson and Mr.

Allen were obstructing him from assisting Constable Graham. [ 24 ] At some point, Constable Malm glanced over his shoulder and he noticed that Constable Graham had freed himself from the SUV. Constable Graham appeared woozy and unsteady on his feet, so Constable Malm told him to go back to their police car. Brendan Robinson then exited the SUV and started to run and Mr. Allen shouted to him, “Oh shit, they called for Code 3 cover. Run.” [ 25 ] Constable Malm chased Brendan Robinson who ran into the street and knocked down by a passing vehicle. Thereafter, Brendan Robinson got to his feet and he continued running.

Constable Malm pursued Brendan Robinson eventually capturing and arresting him. [ 26 ] Constable Malm next returned to the scene and offered some assistance. Once he finished at the scene he went to the hospital to check on Constable Graham. At the hospital Constable Malm waited with Constable Graham and while there he completed the narrative

portion of his report. At no time did the officers discuss the details of what occurred. [ 27 ] As for the videos, the day after the event Constable Malm saw the Johnson Video on a social media site and a few weeks later, he received and viewed the Lakhani Video. Constable Malm did not see the Troy Video until he was being cross-examined by counsel for Brendan Robinson. [ 28 ] During cross-examination, Constable Malm acknowledged he was inaccurate in his police statement when he indicated that Mr. Allen and Troy Robinson exited the SUV simultaneously.

He explained he wrote his report from memory, however, since writing his report that the videos refreshed his memory. [ 29 ] Constable Malm also acknowledged that he was wrong when he testified that Troy Robinson sprinted around the rear of the SUV, when in fact, the video confirms that Troy Robinson walked quickly. [ 30 ] Constable Malm also confirmed he wrote in his police statement that Brendan Robinson pulled Constable Graham into the vehicle. He explained that he wrote this in his statement because that is what he believed he saw.

He explained that after viewing the videos that he is now uncertain if Constable Graham was pulled into the SUV or if he went in on his own. [ 31 ] Constable Malm was cross-examined about his interview with Crown Counsel and he acknowledged telling the Crown that Constable Graham opened the door and reached into the SUV.

When questioned on his use of the word “reached” Constable Malm explained that his intention in using the term was to convey that Constable Graham’s upper body went into the SUV. [ 32 ] During cross-examination, Constable Malm confirmed that he did not put in his report that Brendan Robinson had called him a “goof.” Constable Graham [ 33 ] Constable Graham is a police officer with 10 years’ experience.

He spent the majority of this career working as a patrol officer with the exception of a few months when he worked with a surveillance unit. [ 34 ] Turning to the incident, when the SUV was stopped Constable Graham made his way from his police car along the passenger side of the SUV and to the front passenger door.

While moving alongside of the SUV, Constable Graham looked into the rear passenger area and he saw Troy Robinson with his head down and he appeared to be playing on his phone. [ 35 ] When Constable Graham reached the front passenger door, the window was completely down and Brendan Robinson was leaning toward the driver’s side and yelling at Constable Malm, who was on the opposite side of the vehicle at the driver’s door. [ 36 ] At one point, Brendan Robinson began reaching under his seat, which caused Constable Graham to become concerned so he announced his presence and he identified himself as a police officer.

He told Brendan Robinson to keep his hands in sight, and to speak with him so his friend (the driver) could talk with Constable Malm. While speaking with Brendan Robinson, Constable Graham noticed that Mr. Allen was reaching around the interior of the SUV. Constable Graham believed that he was trying to locate his driver’s licence. [ 37 ] Constable Graham asked Brendan Robinson for his name and Constable Graham heard him reply, “Brennan Robinson”. Constable Graham testified that he might have misheard the name. Nevertheless, he repeated the name and Brendan Robinson responded that his name was Steven Robinson.

Thereafter, there was a discussion about Brendan Robinson’s correct name. During this conversation, Brendan Robinson told Constable Graham that he did not have to provide his name and that the officer had no right to ask for it. Constable Graham responded by telling him he had a right to ask for his name but that he was not required by law to give one. [ 38 ] Things evolved and Brendan Robinson started to swear and call Constable Graham a “Pig”. He then turned to Troy Robinson and instructed him to film.

Troy Robinson held his phone up and Constable Graham believed that he was now filming the interaction. [ 39 ] Brendan Robinson continued to swear and act aggressively. Whenever Constable Graham tried to speak, Brendan Robinson would respond by yelling over top of him. Concerned that things were escalating Constable Graham stopped talking. [ 40 ] At some point, Constable Graham became aware that Constable Malm was no longer on the driver’s door but that he had moved to the passenger side of the SUV. Constable Graham turned to Constable Malm and provided him with the name he had received from Brendan Robinson.

It was expectation that Constable Malm check the name on the police computer while he watched the occupants of the SUV. Typically, Constable Graham would have returned to his police car and checked the name, however, on this occasion Brendan Robinson’s behaviour made him nervous and he wanted to remain by the door of the SUV and watch him. In fact, things had reached a point where Constable Graham was so concerned that he tucked his shirt behind his firearm in the event he needed to quickly access it. [ 41 ] Eventually, Brendan Robinson lit a cigarette and he blew the smoke into Constable Graham’s face.

This behaviour was punctuated with Brendan Robinson yelling and swearing at the officer. Constable Graham remained silent and after 20 to 30 seconds, Brendan Robinson started to reach under his seat. By this stage, Constable Graham had placed his hands on the window and he told Brendan Robinson not to reach under the seat. Brendan Robinson responded by swearing and he started to put the window up. When the window was almost closed Constable Graham removed his hands and he opened the door.

He did this because he wanted to see Brendan Robinson’s hands, specifically, he wanted to see if he was removing anything from under the seat. [ 42 ] When Constable Graham opened the door he stepped back and bumped a metal construction sign causing it to fall. In response, Mr. Allen got out of the SUV, and he walked around the front of it while yelling and swearing that Constable Graham had damaged the door. Constable Graham told Mr. Allen, that he did not damage the door that he had knocked over a construction sign and for him to get back in the car. It was Constable Graham’s view that Mr.

Allen being out of the vehicle increased the risk to officer safety. [ 43 ] Mr. Allen did not get back in the car; rather, he continued moving around the front of the SUV and he stopped at the exterior

side of the open front passenger’s door. Constable Graham was still on the other side of the door and he was standing between the open door and the SUV. Mr. Allen’s aggressive approach drew Constable Graham’s focus. At this point Constable Graham felt a pull on the left side of his jacket and being jerked into the front passenger compartment of the SUV. Constable Graham attributed the grab and pull to Brendan Robinson.

When questioned about this Constable Graham could not recall exactly where on his jacket he was grabbed. [ 44 ] Constable Graham felt that he had been assaulted by Brendan Robinson had assaulted him. He therefore tried to arrest Brendan Robinson.

In this regard, grabbed Brendan Robinson’s shirt or jacket with both of his hands and he tried to pull Brendan Robinson out of the SUV so he could arrest him, however, because Constable Graham was bent over he was unable to generate sufficient leverage necessary to pull Brendan Robinson from the SUV. [ 45 ] Constable Graham’s position caused him to feel vulnerable, he realized that he would not be able to get Brendan Robinson out of the SUV and he believed that he needed to get out of the vehicle and create some distance (Transcript, January 17, 2020, p.14. ll. 8- 33).

Constable Graham could not get out and way from the SUV because Brendan Robinson was holding him. Therefore, and in order to get Brendan Robinson to release him Constable Graham threw a punch with his right hand. He testified that he used his right hand because he was being held on the left side and he was turned, thus, preventing him from using his left hand (Transcript, January 28, 2020, p. 37. II. 31-38). [ 46 ] When Constable Graham threw the punch, he was lower than Brendan Robinson and slightly bent over. As a result, the punch travelled in an upward direction and only grazed Brendan Robinson’s face.

Thereafter, Brendan Robinson punched Constable Graham a number of times in the face (see Transcript, p.15. ll. 18-47). In this regard, Constable Graham felt a barrage of punches which he described as one after the other with the majority of the punches landing on the right side of his face. He estimated there being a minimum of ten punches (Transcript, p. 17. II. 19-25). [ 47 ] Constable Graham next heard someone shout, “That’s my brother.” He then felt Troy Robinson punching him on the top and back of his head.

During cross-examination, Constable Graham testified he saw the hands as they hit him but he could not say if he was hit with a left hand, a right hand or a combination. Constable Graham was questioned about what Troy Robinson shouted and Constable Graham denied the suggestion that Troy Robinson said, “That’s my brother.

Stop punching him.” Lastly, Constable Graham noted that Troy Robinson was filming just before he was punched by him. [ 48 ] Constable Graham next felt his jacket being pulled over his head and he described it as being done in a manner similar to a hockey player’s jersey being pulled over their head as commonly occurs during “on ice” scuffles. At this stage, Constable Graham could not see what was happening and he was not trying to fight, rather, he focussed on trying to free himself from Brendan Robison’s grip so he could get away from the SUV (Transcript, January 17, 2020, p. 16.

II. 11-30). [ 49 ] Ultimately, Constable Graham was able to pull back and as he did so he felt what he thought was a kick to the right side of his cheek or jaw. Thereafter, Constable Graham retreated to the alcove of a nearby business. Other officers arrived and Constable Graham directed them to arrest Mr. Allen and Troy Robinson. [ 50 ] Constable Graham then sat on the curb and he tried to use his police radio, but he was unable to do so because the microphone cable had been damaged during the struggle. An officer approached Constable Graham and updated him on the status of Constable Malm.

Ultimately, an ambulance took Constable Graham to the hospital where his injuries were treated.

In this regard, he suffered a number of abrasions, a concussion, a stiff neck, bruising to his face, a fractured nose and a fractured orbital bone. [ 51 ] Constable Malm visited Constable Graham at the hospital and according to Constable Graham they did not discuss what had occurred, nor, did they discuss the events after he had been discharged. [ 52 ] Constable Graham was cross-examined about the Troy Video and after viewing it he agreed that the video shows him pushing Brendan Robinson’s hand immediately after Brendan Robinson had pointed at the open door while holding a cigarette.

He explained this by stating that the video was a small picture of what transpired. [ 53 ] It was suggested to Constable Graham that he was angry, and frustrated and that he lunged into the vehicle. He denied these suggestions and he denied being the aggressor. He denied delivering 5-10 upper cut punches. He also denied that he went into the car on his own and he maintained that he recalled being pulled into the car. Constable Graham clarified his position and acknowledged that after being pulled into the car that he also went into it on his own.

In this regard, he stated, “I was pulled, and then I went in to grab him to pull him out” (Transcript, January 28, 2020 p. 61 l. 37). Troy Robinson [ 54 ] Troy Robinson testified that the group left his home in West Vancouver and they headed to Vancouver with the intention of getting something to eat and drink. Shortly after arriving in Vancouver, the group made a wrong turn onto Granville Street and the police stopped them. [ 55 ] Once stopped, Constable Malm approached the driver’s side and Mr. Allen asked him why they were being pulled over.

Constable Malm responded by explaining the reason for the stop and asked Mr. Allen what they were doing. There was a short conversation culminating in Constable Malm asking Mr. Allen for his identification. Mr. Allen responded by searching his person and looking around the car. He looked in the centre console and Brendan Robinson assisted by looking around the interior of the car with the aid of a flashlight that was on his phone. [ 56 ] As things progressed, Constable Malm, instructed Mr. Allen to keep his hands where he could see them and Mr. Allen responded by stating that he was looking for his wallet. Mr.

Allen eventually found his wallet and he gave his identification to Constable Malm. As for the atmosphere, Troy Robinson described the occupants as joking, that there was attitude and that they could have been more respectful. He described Constable Malm as “pretty annoyed.” [ 57 ] With respect to Brendan Robinson, Troy Robinson testified that Constable Graham approached the front passenger door and

asked him for his name and identification. Brendan Robinson gave his name and he started to roll up the window but stopped before completely closing it. He then lit a cigarette and blew smoke in the direction of Constable Graham. Constable Graham and Brendan Robinson engaged in further conversation and at some point Brendan Robinson started to close the window. Constable Graham responded by putting his arm across the top of the window and the window continued going up but it did not fully close.

Constable Graham removed his arm and he opened the door striking it loudly on a nearby pole prompting comments from those inside the SUV. [ 58 ] Mr. Allen responded to the loud noise by getting out of the SUV and walking around the front. As Mr. Allen walked around the front, Troy Robinson saw that he had a phone in his hand and he appeared to be filming. He then heard Mr. Allen say, “You just hit my door off of the pole.” When Mr. Allen reached the area of the front passenger door Constable Graham instructed him to get back into the vehicle.

As this was occurring Troy Robinson and Brendan Robinson were commenting on the door with Brendan Robinson gesturing toward it. [ 59 ] As soon as Brendan Robinson gestured toward at the door, Constable Graham grabbed his wrist and pushed it across Brendan Robinson’s chest. He then pushed Brendan Robinson toward the centre console and he hit him with 5 to 10 upper cut punches that travelled up the front of Brendan Robinson’s body ultimately striking him in the face.

Throughout these events Brendan Robinson was wearing his seatbelt [ 60 ] Troy Robinson was frightened by what he had observed and in his words, “freaked out.” He testified that did not punch, attempt to punch, or make contact with Constable Graham. Instead, he yelled, “Stop punching him, that’s my brother.” At no time did Troy Robinson see Brendan Robinson throw any punches, nor, did he see Brendan Robinson kick Constable Graham. Troy Robinson continued to film the altercation and he decided to get out of the vehicle. Troy Robinson opened the rear passenger side door but Constable Malm pushed it shut.

Troy Robinson then slid across the seat and exited via the rear driver’s side door. [ 61 ] Troy Robinson made his way around the back of the SUV with the intention of going to the passenger’s side to film what was occurring. He testified he was scared and he wanted to be able to prove that they were being assaulted. [ 62 ] When Troy Robinson reached the passenger side he tried to film what was occurring and as he did this Constable Malm yelled at him to back up.

Troy Robinson testified that he did not intend to obstruct Constable Malm; rather, he simply wanted to film what was happening in the SUV. [ 63 ] Constable Malm next shouted at Mr. Allen and told him to get back and he pushed him. At one point, Constable Malm reached toward Troy Robinson but he did not make contact. Troy Robinson recalls shouting, “He’s hitting him, why is he hitting him, get him off of him.” He also recalls hearing Mr.

Allen yelling, “Get your partner off my friend.” Troy Robinson acknowledged knowing knew that Constable Malm wanted him to backup and that he backed up momentarily, only to move forward. Troy Robinson testified that did not intend to obstruct Constable Malm; rather, he felt that Constable Malm was protecting his partner who was in the process of assaulting his brother and he wanted to get everything on camera (Transcript, January 29, 2020, p. 40. ll. 1-31). [ 64 ] Shortly after the above, Constable Graham and Brendan Robinson came out of the SUV.

Constable Graham was holding his head and Brendan Robinson had scratches and red marks on his face. Brendan Robinson said, “Let’s get out of here,” and Mr. Allen said, “Just go,” at which point Brendan Robinson started to run. During cross-examination, the Crown presented Troy Robinson with video clips and questioned him on whether he could see the red marks and scratches that he claimed to have seen on Brendan Robinson’s face. Troy Robinson pointed out that the video was not clear, that it was pixilated and that he recalled seeing red marks and scratches.

Counsel for Troy Robinson re-examined him on this point and Troy Robinson confirmed that the quality of the video was such that it did not show Brendan Robinson’s acne or the slight stubble on his chin, whereas in contrast, the pictures in exhibit 4 clearly shows the acne and stubble.

Hence, demonstrating why the red marks and scratches were not visible on the video. [ 65 ] During cross-examination, Troy Robinson testified that Brendan Robinson did not swear or yell at Constable Graham, nor, did not blow smoke in the officer’s face and he denied that he was behaving like an “asshole.” [ 66 ] Troy Robinson was questioned about his relationship with his brother and he responded that he loved him and that he wanted to protect him. Despite these feelings, he maintained that he did not assault Constable Graham.

His rational for not becoming involved was his belief that there was no winning against the police and that the police have guns and there was a risk of being shot (Transcript, p. 46. ll. 32-42). [ 67 ] As for the video recording, Troy Robinson started recording when Constable Graham indicated that Troy Robinson and the others were acting, “sketch.” VIDEO EVIDENCE Johnson Video [ 68 ] The video captured the events from the front exterior passenger side of the SUV and it begins with the front passenger door open and Mr. Allen standing on the exterior side of the door.

Constable Malm is standing a few feet away from the door toward the rear of the SUV. Constable Graham’s legs are visible under the open door, he is bent at the waist, the upper part of his body is moving and in the front passenger compartment. There are times when the SUV rocks and at one stage Brendan Robinson can be seen sitting in the front passenger seat and leaning toward the driver’s side.

A significant amount of movement is visible, however, I cannot conclude who is moving or the nature of the movements. [ 69 ] At 00:13 of the video, Troy Robinson exits the rear driver’s side and moves around the rear at which point Constable Malm approaches, points, and shouts for him to get back. While this is occurring, Mr. Allen moves toward Constable Malm with his phone extended in his hand and Constable Malm pushes Mr. Allen. [ 70 ] Eventually, Troy Robinson and Mr. Allen position themselves on the sidewalk and they appear to be filming what is occurring.

They are between 8 to 10 feet away from the SUV, however, there are occasions when they move a step or two toward the SUV. When

they do this, Constable Malm responds by directing them to get back. [ 71 ] As for the events at the SUV, at 00:29 of the video, Brendan Robinson’s left foot comes up and appears to strike Constable Graham in the upper side of his face. When this occurs, Constable Graham is standing between the open front door and the passenger compartment with his upper body bent forward toward the vehicle. Shortly after the kick, Constable Graham backs away from the SUV and it appears that Brendan Robinson momentarily holds onto his arm. Thereafter and at 00:32 of the video, Brendan Robinson exits the SUV and runs.

Lakhani Video [ 72 ] The video captured the events from the rear of the SUV and along the passenger side. There are times when the video fails to capture events because it loses focus or it is aimed at the sidewalk. [ 73 ] When the recording starts the front passenger door of the SUV is open and persons are standing around the door. Shortly, thereafter, Troy Robinson exits the SUV he moves around the rear of the vehicle where Constable Malm confronts him. At this stage, the video goes out of focus and when it comes back into focus, Mr.

Allen and Troy Robinson are on the sidewalk and approximately 4 feet from the SUV and filming. Troy Video [ 74 ] This video was taken from inside of the rear passenger area of the SUV and it captured portions of the dialogue as well as the events before the altercation and some portions of the altercation. [ 75 ] The video shows that occupants of the SUV were hostile, rude, argumentative and difficult to the extreme.

Some examples include, interrupting Constable Graham, telling him to “fuck-off”, calling him an “asshole”, laughing at him, blowing smoke at him and refusing to keep the window down. [ 76 ] As for the window, on occasion Constable Graham told Brendan Robinson to stop putting the window up and Brendan Robinson would momentarily comply and then re-commence closing the window.

At one stage, Constable Graham put his arm across the window and he said to Brendan Robinson, “If you roll it up you are going to come out of that window.” During the events, Constable Graham made it clear that he wanted the window down because he wanted to see what Brandan Robinson was doing. [ 77 ] Immediately before the altercation and despite Constable Graham’s direction, the window begins to close and Constable Graham responds by opening the passenger door, prompting a response from the occupants. Thereafter, Mr.

Allen exits the SUV and walks around the front toward Constable Graham and as this occurs, Brendan Robinson gestures out of the SUV and toward the open door. When he does this, he is holding a cigarette and he states, “He smashed the fucking sign.” Standing within the area of the open door is Constable Graham who states, “Don’t reach.” Constable Graham then grabs Brendan Robinson’s wrist and with his left hand he grabs the upper portion of Brendan Robinson’s arm. Constable Graham’s upper body then enters the front passenger compartment and he pushes against Brandan Robinson.

At one point, Constable Graham uses his left arm and he pushes up against Brendan Robinson’s right arm. At 02:50 of the video, Constable Graham pulls back from the interior of the SUV and then moves forward into the interior while forcefully delivering a punch with his left hand. [ 78 ] Significantly, the video does not show Constable Graham being pulled into the SUV, nor, does it show that he was in a position that prevented him from using his left hand or that he was lower than Brenden Robinson.

CREDIBILITY AND RELIABILITY Constable Malm [ 79 ] After careful consideration, I have significant concerns regarding Constable Malm’s evidence. Accordingly, I place little weight on those aspects of his evidence that are not confirmed by other reliable sources. My concerns regarding the reliability of Constable Malm’s evidence are driven by the trauma he suffered, the inconsistencies in his evidence and finally, his demeanour as a witness. [ 80 ] Turning to the trauma, it is my view that the trauma experienced by Constable Malm creates a real risk that his recollection is impaired.

In support, I reference his testimony wherein he stated: So, your Honour, this has been a very traumatic experience for me. What I have found is that I buried it for the better part of a year or over a year. As I discussed this incident further I remember more details or – and/or remember things differently. I am trying to be as accurate as I possibly can and trying to give the correct information to the court.

I’m – I’ve had a lot of difficulty with this (Transcript, January 16, 2020 p. 63 ll 9-17). [ 81 ] Turning to a significant inconsistency, Constable Malm wrote in the police statement that he prepared within hours of the incident, that Constable Graham was pulled into the SUV and yet when testifying he stated that he was uncertain about what caused Constable Graham to go into the SUV. Constable Malm explained he became uncertain after viewing the videos.

The inconsistency and the explanation is troubling. [ 82 ] As for his explanation, Constable Malm testified that his memory became uncertain after viewing the videos. This response lacks believability because the videos that he viewed (the Johnson Video and the Lakhani Video) began after Constable Graham after was already in the SUV and therefore they do not shed any light on what caused Constable Graham’s entry into the SUV.

The Troy Robinson video is the only video that shows Constable Graham’s entry into the SUV and Constable Malm did not see this video until after his direct examination, which was after he had become uncertain. Hence, it is hard to understand how videos that show nothing about the entry caused Constable Graham to become uncertain about his recollection. [ 83 ] Further inconsistencies in Constable Malm’s evidence include, the timing of when Mr. Allen exited the SUV, the timing of

when the door hit the sign, and his failure to put in his report that Brendan Robinson used the term “goof”. This is notable given the importance that Constable Malm ascribed to the term. [ 84 ] As for Constable Malm’s demeanour, there were occasions when his answers were not responsive and there were times when his answers would ramble. I also noted occasions when he would seize opportunities to make negative comments about those involved. Examples include; Constable Malm’s response when he was asked about the size of the parties.

In this regard, he offered that he could not give their size and stated that they seemed larger because they were assaultive. The reference to assaultive was, in my view, gratuitous. As a further example, it was suggested to Constable Malm that Troy Robinson did not stand up to him in a fighting stance and Constable Malm agreed that this did not happen but then added, “he could have dropped his cell phone and started something”.

A final example is, when it was suggested to Constable Malm that the occupants were not asked to come out of the SUV he responded by volunteering that they would not have come out even if they had been asked to. Constable Graham [ 85 ] Constable Graham’s evidence contained significant inconsistencies and in the result I cannot accept his evidence unless it is confirmed by video. Some of the significant inconsistencies in his evidence are discussed below. [ 86 ] Constable Graham testified that Brendan Robinson grabbed the left side of his jacket and pulled him into the SUV.

The Troy Video shows that this did not happen, instead, it shows Brendan Robinson extending his hand from the SUV and gesturing toward the door while holding a cigarette. Almost immediately thereafter Constable Graham looked down and grabbed Brendan Robinson’s wrist. He then pushed forward into the SUV and almost on top of Brendan Robinson.

The audio portion of the video indicates Constable Graham’s thoughts in that he said, “Do not reach.” If Constable Graham had been grabbed or if he believed that he had been grabbed then logically he would have uttered comments about being grabbed and not about reaching. [ 87 ] A further inconsistency is that Constable Graham testified that he tried to grab and pull Brendan Robinson from the SUV so he could arrest him. The Troy Video does not show this, rather, it shows Constable Graham pushing at Brendan Robinson. I also observe that he never told Brendan Robinson that he was under arrest.

Common sense suggests that he would have uttered words associated with an arrest would have been uttered and in my view the absence of such words is telling. Moreover, it makes no sense and it is inconsistent with common sense that Constable Graham would try and pull Brendan Robinson from the SUV without undoing the seatbelt that was inches from his face and plainly across Brendan Robinson’s shoulder.

Without this action any effort to remove Brendan Robinson was doomed to fail, hence, one ponders if he was trying to remove why did Constable Graham not undo the seatbelt. [ 88 ] Constable Graham’s testimony about his positioning and his ability to punch were also inconsistent with the Troy Video. Constable Graham suggested he was being held in the front passenger area and that he could not get out. He explained that this position prevented him from being able to punch with his left hand, and that he delivered a single right handed punch while he was bent over and lower than Brendan Robinson.

In stark contrast, the Troy Video shows Constable Graham pulling back from the passenger area to an almost upright position and then violently launching forward while delivering a forceful punch with his left hand. In sum, the video shows that he was not bent over, that he was not lower than Brendan Robinson and that he could punch with his left hand. [ 89 ] As for Constable Graham’s testimony that he delivered one right-handed punch and that it grazed Brendan Robinson. The Troy Video shows Constable Graham delivering a forceful punch with his left hand.

Additionally, Troy Robinson testified to seeing 5 to 10 upper cut punches and to then seeing redness and scratches on Brendan Robinson’s face. The evidence of these marks is supported by the photographs (exhibit 4) which show marks on Brendan Robinson’s face. [ 90 ] In

summary, the importance of the inconsistencies renders Constable Graham’s evidence unreliable and it would be unsafe for the Court to rely on his testimony. Troy Robinson [ 91 ] The Crown encourages the Court to reject Troy Robinson’s evidence. The Crown argues he minimized aspects of his testimony and that his denial was inconsistent with the love and affection he had for his brother.

As for minimization, the Crown points out that Troy Robinson minimized whether his brother blew cigarette smoke in the face of Constable Graham, whether there was yelling and whether Brendan Robinson swore at Constable Graham. [ 92 ] Counsel for Troy Robinson argues his evidence should be accepted and he should be acquitted. Counsel argues that Troy Robinson was believable when he testified that he did not strike Constable Graham and that there is no basis to reject his evidence.

Specifically, counsel points out that Tory Robinson’s memory was good, that his answers were clear, and that he was not evasive. [ 93 ] I have carefully considered Troy Robinson’s evidence and although there are occasions where he leaned toward minimizing his conduct and that of his brother, I found his evidence to be logical and believable. Notably, he demonstrated a good recollection, and his evidence was largely consistent with the video evidence.

He was also particularly believable when he explained that he did not come to the assistance of his brother because he felt that there was no winning against the police and that a person could get shot. Accordingly, and after considering all of the evidence, I find no basis to reject Troy Robinson’s testimony. ISSUES WAS CONSTABLE GRAHAM IN THE LAWFUL EXECUTION OF HIS DUTY WHEN BRENDAN ROBINSON STRUCK HIM? THE LAW Police duties [ 94 ] A person cannot be convicted of assaulting a police officer unless the Crown proves beyond a reasonable doubt that the officer

was in the lawful execution of their duty when they were assaulted. A police officer is in the lawful execution of their duty if theirconduct falls within the scope of any duty that imposed by statute or the common law: Fleming v. Ontario, [2019] S.C.R. No. 45. [95] The police have a common law duty to protect life and safety: Deedman v. The Queen, (SCC), [1985] 2 S.C.R.2; R. v. Mann, 2004 SCC 52; R. v.

Clayton, 2007 SCC 32. [96] An officer’s power to perform their duty is not unlimited; rather, their actions of are limited in that their conduct must bejustified and necessary to the performance of their duty: Fleming at para. 75. The power to arrest without a warrant [97] Constable Graham testified that he was attempting to remove Brendan Robinson from the SUV so he could arrest him. IfConstable Graham’s attempt to arrest Brendan Robinson was unjustified then he was not in the execution of his duty when the altercationoccurred.

As such, it is necessary to examine a police officer’s authority to arrest without a warrant. [98] A police officer’s power to arrest without a warrant is contained in s. 495 of the Code. The relevant portions provides: 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 commitan indictable offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [99] In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 and R. v. Glendinning, 2019 BCCA 365, the courts consideredthe power to arrest without a warrant and concluded that an arresting officer must have subjective grounds on which to base an arrest andthat the subjective grounds must be justifiable from an objective perspective.

This objective consideration is from the perspective ofwhat would a reasonable person with the same training and experience and in the position of the police officer conclude. The standard islower than the civil standard of proof, and a prima facie case is not necessary before an arrest is justified. Position of the parties [100] The Crown argues that Constable Graham was in the performance of his common law duty to protect the life and safety ofpersons when he opened the door to the SUV.

In support, the Crown points to the environment of hostility, Brendan Robinson’s failureto follow directions, Constable Graham’s experience regarding weapons in vehicles and Constable Graham’s inability to see BrendanRobinson’s movements when the window was up. [101] As for Constable Graham’s entry into the SUV and his application of force, the Crown argues that Constable Grahamsubjectively but mistakenly believed that Brendan Robinson assaulted him and that this belief, albeit mistaken, was objectivelyreasonable.

Accordingly, the Crown argues that Constable Graham had the authority to arrest Brendan Robinson and that he wasauthorized to use reasonable force to effect this arrest, and therefore the Crown reasons that he was in the execution of his duty when hetried to arrest Brendan Robinson. [102] Counsel for Brendan Robinson argues that Constable Graham was not in the lawful execution of his duty when he entered theSUV and when he tried to arrest Brendan Robinson. Counsel argues that Constable Graham deceived the Court when he said thatBrendan Robinson grabbed him and pulled him into the SUV.

In support, counsel asserts that the Troy Video plainly shows thatConstable Graham was not grabbed or pulled as such he did not have the authority to arrest Brendan Robinson and any force used wasimproper and outside the scope of his duties. Analysis [103] The authorities are clear that the police have a common law duty to protect the public including their personal safety and thesafety of fellow officers.

I accept Constable Graham’s testimony that he opened the door to the SUV because he was fearful that BrendanRobinson was reaching for something under the seat and that he needed to have a fulsome view in case Brendan Robinson was reachingfor a weapon. Further, I note, the Troy Video confirms that Constable Graham was concerned and that he tried to look down toward thefloor area of Brendan Robinson’s seat. I also accept that environment was hostile and that Brendan Robinson was refusing to keep thewindow down.

For these reasons, I am satisfied that the opening of the door was for a purpose of protecting himself and Constable Malmand this falls within the scope of his duty. [104] As for whether the opening of the door was reasonable and necessary, Constable Graham testified that the occupants of the SUVwere hostile, that Brendan Robinson was reaching under his seat, and that Brendan Robinson was not following instructions regardingthe window.

Further, I note that the physical positioning combined with the window being up made it difficult for Constable Grahamachieve an angle where he could see under Brendan Robinson’s seat. Therefore, and given that Brendan Robinson would not keep thewindow down, I find that the opening of the door was necessary and reasonable in the circumstances. [105] As for entering the SUV and attempting to arrest Brendan Robinson, I find that Constable Graham was not in the lawfulexecution of his duty when he performed these activities.

In this regard, Brendan Robinson had committed no criminal offence.Specifically, he did not grab or pull Constable Graham and therefore there was no basis to arrest him for assault. [106] As for the submission that Constable Graham subjectively but mistakenly believed that he was assaulted. I do not accept thatsuch a mistaken belief was objectively reasonable. A reasonable person in Constable Graham’s position would have noted that Brandan

Robinson was gesturing and not grabbing, that he was holding a cigarette, that he was making comments related to the door and that hewas focussed on the door. Moreover, a reasonable person in the shoes of Constable Graham, who was looking down at BrendanRobinson’s hand, would have distinguished between gesturing and grabbing. Further, they would have also distinguished between beingpulled into the SUV versus purposely moving forward and into the SUV. Conclusion [107] After considering all of the evidence, I find that Constable Graham was in the lawful execution of his duty when he opened thedoor to the SUV.

I also find that Constable Graham assaulted and pulled and that his belief in this regard was objectively unreasonable,accordingly, he was not justified in trying to arrest Brendan Robinson, nor was he justified in using force for this purpose. I, therefore,conclude that Constable Graham was not in the lawful execution of his duty when he entered the SUV and physically contacted BrendanRobinson. Was Brendan Robinson acting in self-defence?

Introduction [108] An accused who is charged with assaulting a police officer is vulnerable to being convicted of the lesser offence of assault incircumstances where the officer was not in the execution of his duty at the relevant time: R. v. Plamondon, [1997] BCAC, at paras. 36-38; R. v. Plummer, (ON CA), [2006] 217 O.A.C. 201, at para. 48.

Accordingly, and given my conclusion thatConstable Graham was not in the execution of his duty, Brendan Robinson and Troy Robinson remain subject to the lesser offence ofassault causing bodily harm. [109] In response to the lesser offence, counsel for Brendan Robinson argues that he was acting in self-defence and counsel for TroyRobinson argues that the evidence fails to prove beyond a reasonable doubt that he assaulted Constable Graham. The law – self defence [110] The defence of self-defence is found in s. 34 of the Criminal Code. The relevant portions read: 34

(1) 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 madeagainst 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 thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe 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 offorce; (

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 andthe 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. [111] When the defence of self-defence is raised the onus is on the Crown to prove beyond a reasonable doubt that the defence doesnot apply: R. v. Cinous, 2002 SCC 29 at para. 39. Position of the parties [112] The Crown argues the evidence proves beyond a reasonable doubt that Brendan Robinson was not acting in self-defence whenhe struck Constable Graham. Specifically, the Crown asserts the force used by Brendan Robinson was excessive, unreasonable and notproportional to the circumstances.

In support, the Crown relies primarily on the 14 second mark of the Johnson Video and argues itshows Constable Graham pulling himself free from the interior of the SUV only to be pulled back and punched three times, and thenkicked as he made his final retreat. [113] Counsel for Brendan Robinson argues that Troy Robinson’s evidence and the Troy Video shows that Brendan Robinson was

acting in self-defence. In support, counsel argues that Brendan Robinson was attacked by Constable Graham when he was seated in a confined space and wearing a seatbelt. As for the attack, counsel argues it involved pushing, grabbing, 5 to 10 upper cut punches and one direct punch. Counsel also points out that Constable Graham was not a small man, that he had exposed his firearm shortly before the attack and that he placed his hand on his firearm during the attack. For these reasons, counsel argues that Brendan Robinson’s response was proportional and reasonable.

Analysis [ 114 ] The Troy Video and Troy Robinson’s evidence satisfies me that Constable Graham initiated the physical altercation. He first grabbed Brendan Robinson’s wrist, thereafter he pushed into the SUV and he struck Brendan Robinson with 5 to 10 upper cut punches. From these facts, I am satisfied that there were reasonable grounds for Brendan Robinson to believe that force was being used against him. [ 115 ] I am also satisfied that Brendan Robinson’s actions were for the purpose defending himself.

I observe he did not initiate the physical contact, nor, did he immediately respond to Constable Graham’s actions; rather, he only struck the officer after he had been grabbed, pushed and punched by the officer. In sum, Brendan Robinson endured a period of sustained aggression and only thereafter did he respond, thus, it cannot said that his actions were driven by malice or an attempt to injure, rather, they suggest his actions were driven by a desire to protect himself from Constable Graham’s aggression. [ 116 ] I now turn to consider if Brendan Robinson’s actions were reasonable in the circumstances.

In doing so, I acknowledge that individuals are not required to measure with precision the amount of force that is required to defend themselves, and that the injuries suffered do not lead to the automatic conclusion that the force used was unreasonable. [ 117 ] In considering the factors related to the reasonableness of the force, I note the following: a. The nature of the force or threat. Constable Graham pushed, grabbed and punched Brendan Robinson. As for the punches, Troy Robinson estimated 5 to 10 upper cuts and the Troy Video showed a single forceful punch.

Further, and immediately before the physical interaction, Constable Graham tucked his shirt behind his firearm and at one point during the altercation he placed his hand on his firearm. b. The extent the use of force was imminent and whether there were other means available to respond. Constable Graham was in the process of applying force when Brendan Robinson struck him. In my view, there were no other reasonable options available.

Brendan Robinson’s options were limited given he had his seatbelt on, he was pushed against the center console, he was in a confined space, he was lower than Constable Graham and at one point Constable Graham was on top of him. c. Constable Graham and Brendan Robinson’s role in the incident. Brendan Robinson conducted himself in a hostile, belligerent, antagonistic and rude manner. Despite this, he never utter threats to Constable Graham, nor, did he position himself in a physically threatening manner. For the majority of the interaction, Constable Graham was polite, calm, respectful and professional.

Constable Graham was the instigator in that he initiated the physical contact and thereafter he placed himself in a superior position by putting his upper body on top of Brendan Robinson. d. The size and physical capabilities of the parties to the incident. Brendan Robinson had some boxing experience and I expect that Constable Graham had training in the use of force. The two appeared to be relatively close in height with Constable Graham being slightly heavier.

As such, and given the evidence, I cannot conclude that either person had a significant size advantage or that one was significantly more capable than the other. e. The nature and duration of the interaction. The videos satisfy me that the physical interaction between Constable Graham and Brandan Robinson was approximately 45 seconds. Constable Graham was the aggressor for the first 15 seconds and during this period Brendan Robinson did not strike Constable Graham. f. The nature and proportionality of Brendan Robinson’s response. I find that Brendan Robinson’s response was proportional to the circumstances.

I note he responded from an inferior position with an unknown number of punches, and that his actions stopped when Constable Graham was at a distance where he was no longer a threat. As for the suggestion that the Johnston Video shows Constable Graham being pulled back into the SUV and being punched and kicked, I have reviewed the video and although I can see Constable Graham move slightly back from the interior of the SUV and then move forward into the interior, I cannot say if this action was caused by Brendan Robinson or Constable Graham.

I also see movement in the SUV however I cannot determine with precision the physical movements of each person. As for the kick, I do not see it as unreasonable when considered in the entire context.

Lastly, I acknowledge the video shows Brendan Robinson holding onto Constable Graham’s left sleeve as the officer moves away from the SUV however I cannot conclude if this was a result of Brendan Robinson holding Constable Graham with the purpose of assaulting him or if he was simply trying to control Constable Graham while defending himself. [ 118 ] After considering the relevant factors, I am satisfied that Brendan Robinson’s response was reasonable.

I acknowledge he responded by striking Constable Graham an unknown amount of times and that the officer was unfortunately injured, however, I am satisfied that the response was proportional and that it occurred while Constable Graham was violently engaging him. This violent engagement included grabbing, pushing, one forceful left handed punch and shortly thereafter 5 to 10 upper cut punches. I also note these events occurred when Brendan Robinson was at a positional disadvantage in that he was seated in a confined space with his seatbelt on and Constable Graham was on top of him.

Conclusion [119] After considering all of the evidence, I find that the Crown has failed to prove beyond a reasonable doubt that Brendan Robinsonwas not acting in self-defence. As such, I am satisfied that Brendan Robinson struck Constable Graham in the course of reasonablydefending himself and I find him not guilty of assault causing bodily harm. Does the evidence prove beyond a reasonable doubt that Troy Robinson assaulted Constable Graham? Introduction [120] I now turn to consider if the evidence proves beyond a reasonable doubt that Troy Robinson assaulted Constable Graham.

Onthis issue, Troy Robinson testified that he did not strike Constable Graham, whereas, the officers testified that he struck ConstableGraham a number of times. The law [121] I remind myself that the issue of Troy Robinson’s involvement must not be determined by comparing his testimony to thetestimony of the police and simply preferring one version over the other. Rather, I am required to consider all of the evidence that Iaccept and apply the analysis as set out in R. v.

W. (D), (SCC), [1991] 1 S.C.R. 742. [122] Applying the principles from W. (D), if I believe Troy Robinson’s evidence that he did not strike Constable Graham then I mustacquit him. If I do not believe Troy Robinson’s testimony, but I am left in a reasonable doubt by it then I must acquit him. Lastly, even ifI am not left in a doubt by Troy Robinson’s evidence I must consider if based on all of the evidence that I accept whether I am convincedbeyond a reasonable doubt that Troy Robinson struck Constable Graham.

Position of the parties [123] Counsel for Troy Robinson argues that his evidence should be accepted and he should be acquitted and in the event the Courtrejects his evidence, counsel argues that the Crown has failed to prove with cogent, reliable and credible evidence, that Troy Robinsonassaulted Constable Graham. In this regard, counsel argues that the officers’ testimony was not credible nor reliable and it must berejected. [124] For the reasons already mentioned, the Crown argues that Troy Robinson’s evidence should be rejected.

The Crown also pointsout that Troy Robinson had the opportunity to assault Constable Graham in the 5 seconds between him shutting off his video recordingand his exit from the SUV. Analysis [125] I have carefully considered Troy Robinson’s evidence and although there were occasions where he minimized some of theparticipant’s conduct, I believe him when he testified that he did not strike Constable Graham. His evidence was logical and believable.His recollection was good, and his testimony was internally consistent and largely consistent with the video evidence.

I also found that hewas particularly believable when he explained that he did not come to the assistance of his brother because in his view, there was nowinning against the police and that a person could get shot. I also found that his actions after exiting the SUV were consistent with thisperspective. In this regard, he did not rush into the fray; rather, he put on his baseball cap, and he started to film while shouting at theofficers. [126] I have considered the Crown’s argument that Troy Robinson had a 5 second opportunity to strike Constable Graham.

Simplybecause there may have been an opportunity does not, without reliable credible evidence, mean that this occurred, nor, does it mean thatTroy Robinson’s evidence should be rejected based on an opportunity. In my view, and given the chaos, an unexplained 5 seconds isreasonable. [127] Finally, even if Troy Robinson’s evidence was rejected, I find that there is no reliable evidence on which I can conclude beyonda reasonable doubt that he struck Constable Graham. Specifically and for the reasons already mentioned, it would be unsafe to rely onthe officer’s evidence.

Conclusion [128] After considering all of the evidence, I am not satisfied beyond a reasonable doubt that Troy Robinson assaulted ConstableGraham and I find him not guilty of assault causing bodily harm. Does the evidence prove beyond a reasonable doubt that Troy and Mr. Allen obstructed Constable Malm? Introduction [129] It is alleged that Mr. Allen obstructed Constable Malm from assisting Constable Graham by not getting back into the SUV andby not staying back when directed to do so.

As for Troy Robinson, it is alleged that he obstructed Constable Malm by moving towardhim and not getting back when instructed to do so, thus, interfering with his duty to assist Constable Graham. The law [130] The offence of obstructing a police officer is found in s. 129 (

a) of the Criminal Code which reads: 129 Every one who (

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such

an officer, The primary elements of the offence of obstructing a police officer include: 1. the identity of the accused as the person involved; 2. the jurisdiction of the allegation; 3. hat the person obstructed was a police officer; 4. that the police officer was in the execution of their duty; 5. that the accused knew that the person was a police officer in the execution of their duties as a police officer at the relevant time; and 6. that the accused wilfully obstructed the police officer in the execution of their duties: R. v. Quinones, [2012] B.C.J. 383.

Position of the parties [131] The parties agree that the central issue is whether Constable Malm was in the execution of his duty at the relevant time. [132] The Crown argues that Constable Malm was in the execution of his duty when he tried to assist Constable Graham. In thisregard, Constable Malm’s duty included the safety and protection of others including fellow officers, thus, going to the aid of ConstableGraham fell within his duty. [133] As for the obstruction, the Crown argues that when Troy Robinson and Mr.

Allen did not get back when instructed by ConstableMalm that they wilfully interfered with his efforts to assist his fellow officer. In support, the Crown relies on R. v. Kozuchar, 2016BCPC 3030, for the proposition that interfering with an assisting officer can result in a conviction for obstructing a police officer. [134] The Crown also argues that even if Constable Graham was not in the execution of his duty, that Constable Malm reasonably butmistakenly believed that needed assistance.

Therefore and despite his error, he was in the execution of his duty by attempting to protect afellow officer. [135] Finally, the Crown points out that a person’s right to resist a wrongful arrest does not make it permissible for third persons tointervene and obstruct. In support, the Crown relies on; R. v. Saunders (NS CA), [1977] N.S. J. No. 451 (N.S. App.Div.) and R. v. Williams, [1982] B.C.J. N0. 820 (SC). [136] Counsel for the accused argues that Constable Malm was not in the execution of his duty because his duty is not to assist anofficer who is actively assaulting another person.

Simply, a police officer cannot be in the execution of his duty if the act involves aidingan officer who is acting improperly. In support counsel relies on, R. v. Johnsgaard, 2003 ABPC 165, and R. v. T. (D.), 2012 NSPC 9. [137] As for Mr. Allen not immediately getting back into the SUV when instructed to do so, counsel points out that the instructionoccurred before Constable Graham entered the SUV and, therefore, Constable Malm was not in an assistive role at the precise moment,hence, it cannot be said that Mr. Allen interfered at that time with any efforts to help. Counsel also points out that Mr.

Allen was wellwithin his right to exit the SUV and document any damage to the door of the SUV. Analysis [138] As mentioned, the police have a common law duty to protect life and safety. As such, I accept the perspective found inKozuchar, specifically, that an officer is in the execution of their duty when they are assisting a fellow officer and that any person whointerferes with the assisting officer commits the offence of obstructing a police officer.

Nevertheless, Kozuchar is distinguishablebecause the officer needing assistance in the case was in the execution of his duty, whereas Constable Graham was not in the executionof his duty. In my view, this distinction undermines the applicability of Kozuchar. [139] The cases of Johnsagaard, and T. (D.), are more analogous in that the primary officer was not in the execution of their dutywhen the assisting officer was interfered with. In Johnsgaard, the accused saw the primary officer strike a person, knock the person tothe ground and then drag the person to a police vehicle.

The accused, who wanted to tender his name as a witness for what he perceivedto be police brutality, went to Constable Kraushaar (the assisting officer) and asked to get a parties’ name. At one stage, the accusedcame within a few feet to the assisting officer and who told him to move along. The accused did not comply and he was arrested andcharged with obstructing a police officer. The Crown’s theory was that the accused interfered with the assisting officer’s ability toprovide backup or cover for the primary officer.

At para. 25, Judge Fraser framed the issue as: Is she (Constable Kraushaar) in the lawful execution of her duty when she is acting as cover for another officer who is affecting anillegal arrest or an arrest without reasonable grounds or who is using excessive force to affect the arrest?” [140] Judge Fraser acquitted the accused on the basis that Constable Kraushaar was not in the lawful execution of her duty.

At para.25, Judge Fraser commented: It seems to me if an officer is assisting another officer to affect an arrest by providing cover for him to act illegally or without reasonablegrounds to use excessive force, that officer cannot be in the lawful exercise of her duty.

Once a police officer acts illegally, the protectionto police officers under the Criminal Code is removed. [141] Similarly, in T. (D.), the accused were acquitted of obstructing a police officer when they interfered with an officer who washelping a fellow officer who was in the process of conducting an arrest that was subsequently determined to be without reasonablegrounds. In his reasoning, Judge Gabriel concluded if the arresting officer was not in the execution of their duty, then the officerproviding assistance could not be in the execution of their duty.

[142] Based on the above, I am not satisfied that Constable Malm was in the execution of his duty at the relevant time. ConstableMalm’s duty is the protection and safety of others, it is not to assist a fellow officer who is improperly applying force and wrongfullyarresting an individual.

To hold otherwise would ignore the importance of officers interfering and stopping fellow officers who areimproperly using force. [143] In considering the matter, I recognize the Crown’s argument that a person’s right to resist their wrongful arrest does not make itpermissible for third persons to then intervene and obstruct the arresting offices: Saunders and Williams. Nevertheless, I do not see theauthorities as going so far as to prevent individuals from inquiring about the arrest of another, or arguing about the physical handling orthe circumstances they witness: R. v.

Long (1970) (BC CA), 1 C.C.C. 313 (BCCA) at page 317 and Williams, at para.15. In fact, I observe that reasonable enquires in the appropriate context are appropriate and a means whereby the public can hold thepolice accountable. [144] Finally, if I am incorrect and Constable Malm was in the execution of his duty, I conclude that Troy Robinson and Mr. Allen didnot obstruct Constable Malm, rather, their conduct was reasonable and commensurate with the circumstances.

In this regard, they did notphysically intervene, rather, they were filming and shouting in the context of them witnessing an officer improperly applying force.Given the circumstances I find their conduct was entirely reasonable. In fact, to hold otherwise would criminalize their reasonable andappropriate attempts to stop improper conduct. Finally, had Constable Malm listened to the loud and repeated shouts of Troy Robinsonand Mr. Allen, he would have appreciated that they wanted the officer to intervene and stop Constable Graham. [145] For the reasons stated, I find Troy Robinson and Mr.

Allen not guilty of obstructing Constable Malm. CONCLUSION [146] After considering all of the evidence, I find Mr. Troy Robinson, Mr. Allen and Mr. Brendan Robinson not guilty of all charges. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia Corrigendum – Released June 23, 2020 [1] Paragraph 2, should read as follows:

c) Count 3 – That Brian Allen possessed stolen property (no evidence motion was granted at the close of the Crown’s case and thecharge was dismissed). ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia