R. v. Bal Date:, 2013 BCPC 21

Citation: R. v. Bal Date: 20130124 2013 BCPC 0021 File No: 57684-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. INDERPAL SINGH BAL REASONS ON SENTENCE OF THE HONOURABLE JUDGE R. D. FRATKIN Counsel for the Crown: V. Alstine Q.C. Counsel for the Defendant: R. R. Hira Q.C. Place of Hearing: Richmond , B.C. Date of Hearing: December 28, 2012 Date of Judgment: January 24, 2013

FACTS: [ 1 ] The accused, Inderpal Singh Bal, entered a plea of guilty to the offence of common assault. He had been originally charged with assault causing bodily harm. The offence occurred January 26 th 2012 on Buswell Street in Richmond. The accused is a member of the RCMP stationed at Richmond, and on the night in question, was a surveillance officer assigned to the Quick Response Team (a police unit that is from time-to-time dealing with certain targeted prominent crimes).

The unit was operating surveillance in regard to a series of cell phone robberies and thefts that occurred in the downtown area of Richmond between December 31 st 2011 and January 26 th 2012. The information that the officers had was that two men were strong-arming cell phones from victims. In some cases, there were reports that weapons were involved. [ 2 ] Matthew Navas-Rivas (hereafter Navas-Rivas) and Peter Grieve were subject to police surveillance on January 26 th 2012. The team lost visual contact with the aforesaid twosome for a short period of time.

During the lost contact time-frame, the team received a police broadcast of a just-completed robbery involving a cell phone and wallet, and two suspects were reported to be fleeing in a car at high speed from the close-by vicinity of the crime. The surveillance team believed that Navas-Rivas and Grieve were responsible for the offences and subject to arrest. Cpl. Krygier ordered a Code Five (5) arrest (used in contemplated high risk events and other situations of danger). [ 3 ] The team initiated a stop of the car driven by Navas-Rivas (Grieve as passenger).

Amongst the officers who participated were officers driving two traffic vehicles. Traffic cars are equipped with dashboard video cameras that automatically start recording when emergency equipment is deployed in a traffic stop. The arrest of Navas-Rivas and Grieve was recorded. [ 4 ] During sentence submissions, counsel played the video recording (Exhibit # 2), which shows the accused dealing with Navas- Rivas (the victim). An RCMP officer ordered Navas-Rivas and Grieve to stay in the car but they both disobeyed and got out from the car with arms raised. They are then ordered to lie on the ground face down.

They both comply. Navas-Rivas remains motionless on the ground for some 14 seconds before the accused, Cst. Bal, enters the camera view. The accused has his service gun in his right hand pointed at a low position (down). The accused moves rather quickly to the victim and lands on the victim’s lower back with his left knee. The knee-drop was quite aggressive and is in all likelihood a physical subduing tactic employed in certain kinds of arrests. The accused places the gun on the pavement a short distance to the right side of Navas-Rivas. Cst.

Bal’s left hand is placed on the neck area of Navas-Rivas, in a restraining manner. The accused, still kneeling on the back area, looks up and to his right for a brief moment and then with his right hand strikes Navas-Rivas in the head/face. It appears that the head of Navas-Rivas is on his left side with his right side exposed. The accused did not have his handcuffs, and another officer (Cst. Arriola), provided them to Cst. Bal and he then cuffed Navas-Rivas. Prior to the punch, another officer (Cst. Penney) had taken Cst. Bal’s gun from the ground.

Navas-Rivas had not struggled or shown any resistance throughout the arrest. At one point, Cst. Bal leaned over close to Navas-Rivas’s ear and appeared to be saying something to him. [ 5 ] Further, the assault aforesaid is coupled with two other events in the arrest. I am referring to two “face-washes” along the pavement after the handcuffing process had finished. The Report to Crown Counsel Narrative prepared by the Surrey RCMP (2012- 17808 Exhibit #1) summarized the narrative of Cst. Harnett at page 21 wherein she told investigators what she observed: “ Cst.

Bal grabbed his hair (Navas-Rivas) ... and pushed his head into the asphalt. She believed his head was turned to the right at the time, so his left cheek would have been on the asphalt ”. [ 6 ] The video displays Cst. Bal applying pressure to the prone Navas-Rivas while pushing down on his head. Cst. Bal appears to be moving the head of Navas-Rivas against the pavement in a side-to-side motion. This appears to be what Cst. Hartnett is referencing aforesaid. [ 7 ] To summarize, there are two assaultive actions encompassing the plea.

In the Court’s opinion, the punch to the head and the asphalt face-washing are paramount. I do not consider the knee-drop to the back and the pulling of Navas-Rivas to his feet, standing alone, amount to assaultive behaviour warranting criminal censure. [ 8 ] Sgt. John Heron, is an RCMP expert in the area of police officer use of force. He was requested to prepare a review of the incident for the RCMP investigation. Sgt. Heron viewed the video recording, various reports and statements, and other relevant material and concluded that: the actions of Cst.

Bal’s were excessive and met the threshold set out by case law regarding excessive force. Further, his actions were “ not aligned with the RCMP Incident Management Intervention Model, Intervention Training, RCMP policy and the Criminal Code authorities in place at the time of the incident” . Finally, Sgt. Heron opined: “ Cst. Bal used excessive force during the arrest of Mr. Navas-Rivas by dropping onto his back with his knee, punching him once in the face and rubbing his face into the pavement ”. [ 9 ] I note the arrest of Grieve was unremarkable in contrast.

Further, I have considered the presence of a number of police officers on scene. The issue of safety to Cst. Bal or to the other arresting officers appears to have never been a concern in this fact pattern. [ 10 ] Cst. Bal asked Cst. Arriola if the arrest was video recorded and requested to view it. He went to the traffic patrol car and played the video recording. POLICE STATEMENTS:

[ 11 ] As to whether Cst. Bal had Navas-Rivas under control, some of the officers seem to be equivocal as to whether or not the complainant was resisting or struggling in any way. Some of the officers say Navas-Rivas was struggling and resisting, while others say Cst. Bal had him under control. CROWN’S POSITION: [ 12 ] The Crown is opposed to a discharge of any kind as it is not in the public interest. The Crown's submission is that the appropriate disposition is a suspended sentence and that the accused be placed on probation between 12-18 months.

Furthermore, the Crown submits that there be terms with respect to community work service and that counselling should be ordered. [ 13 ] Crown counsel emphasized that Cst. Bal was not provoked, as there is nothing factual that could reasonably have provoked anger in the accused. The accused had a considerable size advantage over the complainant. The accused outweighed the complainant by over 100 lbs. The complainant is 6 ft. 2”, and weighed 149 pounds. The accused is slightly over 6 ft. tall and weighed at the time 260 lbs.

The accused and the complainant were complete strangers. [ 14 ] The Crown submits for consideration the following points: the accused was on duty when he committed the assault. He was involved in the execution of his duty. Further, the accused was in a trust position as a police officer. The case law makes it clear that sentences are higher for peace officers than they are for the regular civilians.

Section 718 of the Code considers that a police officer breaching his/her trust position is an aggravating factor in sentence. [ 15 ] As well, consideration must be given to the vulnerability of the complainant when he was assaulted. The complainant was face down and motionless on the pavement. He was totally under the control of the accused, with a number of other police officers present. Though Navas-Rivas was not in handcuffs through most of the assault, “he may as well have been” (Transcript p. 63 line 21 onward).

Furthermore, the Crown submits that the officers involved believe Navas-Rivas must have been resisting or struggling with Cst. Bal “in order to warrant the force that was being used on him” . (Transcript p. 63 line 10) [ 16 ] There was no danger for the accused or his colleagues once the arrest commenced. There was no threat from the passive and obedient complainant. [ 17 ] As for the defence submission that the incident took place in the heat of the moment, the Crown submits that the accused, before punching the complainant, looked to his right and upward, as if he was looking to see if anyone was watching .

The Crown says that this fact imports a measure of planning and deliberation. [ 18 ] Simply put, Mr. Van Alstine for the Crown says: “the situation is under control, there's no provocation, the complainant is in a position where he can’t move, the accused makes sure that he's got control of the situation and then he levels the punch at him”. (Transcript p. 33 line 3) [ 19 ] The Crown asked the Court to consider the injuries to the complainant. He was temporarily disfigured and the assault cannot be considered as minor.

According to the main investigator, Navas-Rivas told him that he had been to a doctor twice regarding the injuries received at the hands of the accused, once at an institution in Surrey, another at an institution in Fraser. He complained that his vision is marred by black spots from time-to-time, he experiences headaches and he has trouble sleeping. The attending physician informed the complainant that such symptoms are common for boxers and will disappear over time. Those were the words that Navas- Rivas provided to Cpl.

Hall when Hall visited him in early December 2012 in custody. [ 20 ] The accused may be a man of good character, however as Bagnall J. said in R v. Langlois , 2004 BCPC 195 , the fact that an accused has got a good character got him his job in the first place. In committing a breach of trust, the person of previous good character should not be able to rely on that reputation in mitigation of sentence. [ 21 ] The Crown submits that the accused had to foresee the injuries to the complainant, given their respective positions.

He was striking a person in a vulnerable part of his body when the complainant was resting on a very hard surface. The accused struck the complainant in the head, a dangerous place to strike anyone. The fact that the injuries were not more serious goes to good fortune and not as mitigation in favour of the accused. [ 22 ]

Section 718.2(a)(iii) mandates that a breach of trust and/or breach of authority is an aggravating feature on sentencing. The Crown submits that what should be emphasized is denunciation, general deterrence, and the protection of the public. There were two major assaults: the punch was the most significant, but the “face-wash” was equally significant as there are no justifying circumstances.

The Crown urges that this has some bearing on what penalties should be levied. [ 23 ] The actions of the accused from beginning to end and throughout are aggressive. [ 24 ] There are pictures in Exhibit 1 showing the injuries that the complainant suffered. The pictures show the right eye swollen shut and, a day later, the eye is blackened. [ 25 ] The Crown filed the criminal record of Navas-Rivas (Exhibit 3). Navas-Rivas is presently in custody as a result of the robbery charges. DEFENCE SUBMISSIONS:

[ 26 ] Cst. Bal seeks an absolute, or, in the alternative, a conditional discharge. It is submitted that a discharge is in his best interests and not contrary to the public interest. If a conditional discharge is granted, the following conditions would be appropriate: (

a) that the discharge be for 6 months; (

b) that he report to a probation officer, (

c) that he perform 25 hours of community work service, and (

d) that he continue his counselling with Dr. Mackoff. [ 27 ] A discharge is available, if it is in the best interests of the accused and not contrary to the public interest. ( Fallofield and Sanchez-Pino ) [ 28 ] Police officers are not barred from receiving discharges by virtue of their illegal use of force. [ 29 ] Defense counsel submits that, generally, a discharge is not available where a police officer uses force on prisoners already in police custody or at the police station.

Discharges are granted in circumstances where the use of force occurs in the heat of an arrest in the field, and where the injuries are not permanent. The accused's background: [ 30 ] The transcript on sentence reveals in Mr. Hira’s remarks that Cst. Bal is 35 years old. He was born on February 27, 1977, in India. He immigrated to Canada with his father and mother during 1980. He's the only child. His mother worked as a cook for 30 years and is 62 years old. His father passed away in 2001. He attended John Oliver High School and graduated from Grade 12 in 1995.

Shortly after graduating from high school, the accused worked for A&B Sound and he continued his employment there as he was obtaining his criminology degree. In total, he was employed at that company for ten (10) years. He rose from the position of a clerk to an assistant store manager. A&B Sound went bankrupt in 2005. Mr. Bal obtained a diploma in criminology from Langara College in 2001. [ 31 ] Mr. Bal joined the RCMP and attended the RCMP Training Academy in September of 2005. He has been an RCMP officer since graduating from that academy in March 2006.

He has worked in the General Duties Section, the Traffic Services

Section and the Quick Response Team, which is where he was working. It is a surveillance team that is assigned from time-to-time to deal with certain targeted crimes or prominent crimes, and they were dealing with that on January the 26th, 2012. [ 32 ] He is also involved in charity work. He runs the Richmond RCMP Canteen charity. Proceeds from that charity are donated to local charities. He has helped raise over $10,000 for various charities through his work at the canteen. [ 33 ] He is married to another RCMP officer for three years.

He is the sole caregiver for his elderly mother, his father having passed away in 2001. Defense version of the circumstances: [ 34 ] Cst. Bal was part of the Quick Response Team on January the 26th. They had been out in plainclothes trying to deal with a rash of cell phone robberies in the Richmond area. The police officers had suspects but Navas-Rivas was not one of them. The police officers were conducting surveillance at the time. They lost sight of the people on which they were conducting surveillance and, during that period of time, there was a call about a robbery, a cell phone robbery. [ 35 ] Cst.

Bal’s superiors decided to order a Code 5 takedown (used in high risk, usually armed situations). [ 36 ] Cst. Bal was in plainclothes and he had handcuffs, but they were left in his briefcase in the police car prior to the arrest. When he was on top of the complainant, he was without handcuffs until moments later when he received some from a fellow officer. [ 37 ] According to Mr. Hira, the arrest scene was not as it should have been. Cst. Bal did not holster his firearm as he should have. Instead, he placed it on the pavement a short distance from the complainant. [ 38 ] Mr. Hira explains that Cst.

Bal’s stress level was elevated, his anxiety was heightened and his adrenalin was pumping; all of which led to the errors that he made. He forgot his handcuffs. He rushed to the complainant while trying unsuccessfully to holster his gun. He put the gun on the pavement nearby to the complainant. [ 39 ] Mr. Hira then suggests that the complainant was writhing when he was arrested and alludes to statements made by several officers. He says the Cst. Bal is trying to gain control of the complainant’s arms and hands. According to Mr. Hira, the complainant looks in the direction of the firearm to his right.

He says that Cst. Penney states the same in his interview. Cst. Penney says that he saw the gun on the pavement and he retrieved it and took it out of what he considered to be harms way. [ 40 ] Mr. Hira goes on to suggest that Cst. Bal is trying to get control of Navas-Rivas and only then realizes the stupid mistake of leaving his gun within arm's reach of the suspect. While he is trying to gain control of the suspect, he also realizes that he does not have

his handcuffs. [ 41 ] Mr. Hira states the following about the dilemma facing Cst. Bal: “So he can't tell the suspect, he can't shout out, "I don't have handcuffs," because that announces his problem, nor can he shout out, "Can somebody pick up my gun?" So he does strike the suspect. ...he looks up and looks to his right. He doesn't look to his left. The reason why he looks to his right is he's looking for the gun before the strike. That's what he tells me. That's what he told the Board at the Code of Conduct.

And frankly, to think that he could avoid being seen in a scene that's swarming with police officers striking a suspect makes no sense. In other words, what I'm trying to convey here is that if the intention in looking up and looking to the right was to make sure nobody's looking at him before he strikes the suspect, he should have looked to the left, too, and surely he would realize with all these police officers around, somebody's going to see him do that. MR. HIRA: Okay.

Now, so the point that I'm trying to make here is that the reason for the strike was to stun the suspect because he was concerned about the gun. He didn't know Navas-Rivas, had no dealings with him, there's no pre-existing animus. This is the first time ever in his six years and ten months of being a police officer that he has used a hard strike on anyone. And as you'll see in the letters and as you'll hear from my client, he uses charm to get things done rather than force. The strike, as you will note, Your Honour, was not a full-on but a controlled strike to the face.

Fortunately, the suspect stopped resisting and Cst. Arriola handed handcuffs to Cst. Bal and he was successfully handcuffed. Cst. Bal admits that he failed in a number of respects in the way he handled this matter and that the use of force was not justified. He is guilty of assault. How did he fail? He should have had his handcuffs. He should have acted in a more controlled manner. He should not have left his loaded gun next to Mr. Navas-Rivas. He should not have struck Mr. Navas-Rivas.

It was impulsive, it was without premeditation, it was wrong and I repeat myself, frankly stupid, given that the place was crawling with police officers which is Your Honour's comment. If you're going to do that, this really is the wrong place to do it. And having been on Traffic, he knows that the police cars have cameras. The strike was as a result of a lack of control in a high-stress situation, that is, a lack of his control. [ 42 ] Mr. Hira urges the Court to accept that the hit was to stun the complainant and to prevent the complainant from getting the gun. Furthermore, Mr.

Hira suggests Navas-Rivas was resisting. [ 43 ] Cst. Bal has entered a guilty plea in this Court on the earliest opportunity and he admitted to his wrongdoing at the Code of Conduct hearing September 26 th wherein he agreed that he had disgraced the RCMP. Cst. Bal instructed counsel at the Code of Conduct hearing that he wanted to admit his guilt. Cst. Bal was put on administrative duties at first, but then was later returned to operational duties, as he was held in high regard by his superior officers. The letters in support testify to Cst.

Bal being considered an excellent member. [ 44 ] The Code of Conduct hearing resulted in Cst. Bal being penalized five days with no pay which means he has to work five days and not get paid. He was required to pay for the taxes for five days work however amounting to approximately $2,500.00. He received a reprimand. He was further penalized in that he may not be promoted for at least one year. This interrupts his ability to apply for a promotion to corporal next year and, of course, has some further financial consequences. [ 45 ] In late January 2012, Cst. Bal sought the assistance of Dr.

Randy Mackoff, a psychologist and former Vancouver Police Officer. Cst. Bal realized that he suffered from anxiety and stress in reacting to events such as the incident displayed at bar. [ 46 ] Mr. Hira said: “Dr. Mackoff has been treating Dr. Bal for stress, anxiety and depression. There is no anger management issue here. This is the first time, as I said, that Cst. Bal has ever applied force in his six years and ten months and he is on medication prescribed by Dr. Mackoff to address his stress, anxiety and depression ”. (Transcript p. 46 line 38) [ 47 ] Cst.

Bal also considered that his reaction to the situation was not in accordance with RCMP training and that his physical conditioning and weight contributed to his stress and anxiety. He therefore took some programs that enabled him to lose a considerable amount of weight (some 40 pounds). [ 48 ] Mr. Hira continued: “His wife was disappointed by his actions. He feels isolated from his friends and -- and ashamed because this type of thing sort of hangs over you. It has an effect on his work. He's not allowed into any specialized units or federal units for two years.

He personally feels that he bears the stigma, as he rightly should, for his acts. While he's on full duties now after the Code of Conduct, he's under close supervision. Close supervision affects his confidence and causes him to sometimes second-guess his actions.” (Transcript p. 47 line 11) [ 49 ] The Court was told that if a conviction is recorded, Cst. Bal’s career opportunities will be limited and he will in all likelihood be taken off operational duties. His abilities to grow in his chosen career will be curtailed in some fashion.

It is submitted that this punishment is excessive, given the nature of the rebuke to date. [ 50 ] Cst. Bal has written a letter of apology to the complainant, and the same has been filed on sentence (Exhibit 5). It is submitted that the letter is an expression of remorse.

[ 51 ] The Court was also provided a number of letters in support of Cst. Bal. All of the responses speak of a good man and a good police officer. He is highly regarded by all his fellow officers. They describe the event as aberrant. One writer describes the reaction and fall out to all of this as follows: “ .... no one has been harder on Paul than Paul himself .” [ 52 ] Insp. Janice Gray, the Assistant Operations Officer for the detachment for a two-year period between January 2009 to January 2012, says that: “Apart from his regular duties in traffic enforcement, Cst.

Bal gave countless hours to managing the detachment's snack corner with profits benefiting various charities in the community.... he worked hard, bettering himself professionally and personally. He routinely asks for advice on professional matters, seeking ways to be a better police officer and investigator.” [ 53 ] Corporal Grey felt that Cst. Bal was easygoing and had a good sense of humour. She considered that he was easy to work with and dedicated himself to working as a dedicated team player. She said that the assault was totally out of character.

She further considered that he is a person of good character “ who made one mistake and who is also committed to learning from it ”. AGGRAVATING FACTORS: [ 54 ] The accused was in a role of authority or trust over the complainant and took advantage of a helpless complainant. The criminal act was violent. [ 55 ] The complainant was in a vulnerable position and the assaults were to the part of the body where permanent harm could result. [ 56 ] There was no provocation by the complainant or any contextual provocation. [ 57 ] Cst.

Bal was on duty and in the execution of his duty. [ 58 ] The accused and his colleagues were not in any imminent danger. The situation was totally under the command of the police. [ 59 ] The complainant was under control and not resistant. MITIGATING FACTORS: [ 60 ] There are the heartfelt letters of support (Exhibit 4). By all accounts, the letters show the accused to be a very good police officer. The event is seen to be uncharacteristic. [ 61 ] Cst. Bal has no criminal record and entered an early guilty plea.

The plea was to a lesser offence than charged. [ 62 ] There seems to be very little risk of re-offending. On the evidence before the Court, this occurrence is the first of its kind in his career. [ 63 ] The offender has been punished internally by his employer and has initiated his own rehabilitation through counselling. He has taken steps to prevent a reoccurrence of the offence. [ 64 ] Cst. Bal cooperated with the investigation in an appropriate fashion. [ 65 ] Cst. Bal has extended an apology to the complainant, expressing his remorse.

He also admitted his wrongdoing in the Code of Conduct hearing immediately, agreeing that he had disgraced the RCMP. [ 66 ] Cst. Bal has done voluntary work in the RCMP community and raised money for charities. Cases provided by counsel: [ 67 ] In R v Canada (Royal Canadian Mounted Police , [1981] BCJ No 856 , a decision of the B.C. Court of Appeal, the accused, a police officer, kicked a prisoner in the face and fractured the prisoner’s cheekbone. At the time, the prisoner was on the ground, defenceless and presented no threat to the officer or others.

The accused was convicted of assault causing bodily harm, and initially sentenced to 3 months imprisonment. On appeal, the sentence was reduced to 45 days, to be served intermittently. COMMENT: The facts of this case are much more serious than at bar. [ 68 ] R v. Cline [1990] AJ No 1200 , a decision of the Alberta Provincial Court Criminal Division, involved an on-duty officer who attended a house with another officer to remove the complainant from the front doorstep of his former girlfriend.

When the complainant was unwilling to leave, the accused used his baton to deliver a number of blows to the hand of the victim who was hanging onto the front door handle of the house. At the time of the blows, the other officer had secured the complainant in an arm lock, and the complainant did not display or threaten any violence toward the officers. Porter J. found absolutely no provocation that led to the degree of force

used. The accused was convicted of assault causing bodily harm and sentenced to 30 days imprisonment. COMMENT: Here there was some resistance but insufficient provocation. [ 69 ] R. v. Grant [1995] A.J. No. 148 , a case of a Crown appeal from sentence of an accused for assault causing bodily harm; sentence to $2,000.00 fine and one day in jail. Police officer entered guilty plea to allegation of using pepper spray on a jailed inmate facing an Impaired Driving charge. Police Officer had been trained in the use of the spray and after deploying it, he did not decontaminate the complainant.

The victim suffered a non-permanent injury. The issue of Court concern was the Crown request to impose a weapons ban. The appeal was allowed to the extent that a s.100 weapons ban was granted but the lower Court sentence was upheld. COMMENT: conviction registered. [ 70 ] In R v. MacDonald [1996] AJ No 1099 , a decision of the Alberta Provincial Court, the accused, a police officer, was a first- time offender with a laudable record over his 15 years of public service. The accused struck the complainant at a vulnerable time, because the complainant was intoxicated and her hands were handcuffed behind her back.

Crowe J. found that the complainant had provoked the blow in question by kicking the accused in the back of the head and by launching into a tirade of vulgar verbal abuse. The blow by the accused was found to be unpremeditated. Fines of $300 and $400 were respectively imposed against two counts of assault. No firearms prohibition was ordered. COMMENT: provocation, unlike at bar. Conviction registered. [ 71 ] R v Groot , 2000 CarswellOnt 2973 , a decision of the Ontario Superior Court of Justice, involved a heavily intoxicated complainant that the accused believed to be breaking into a vehicle.

The complainant was arrested and handcuffed by the accused with minimal resistance and was then taken to the police station. The accused escorted the complainant into the interview room when other officers present heard one loud bang. The complainant was then discovered to be on the floor of the room and bleeding profusely. The accused was disbelieved at trial when he stated that the complainant had tripped, and was found to not be entitled to leniency due to remorse and public acceptance of responsibility.

The accused was convicted of assault, and was sentenced to time served of 3 days pre- sentence custody, a suspended sentence with 18 months probation and 60 community work service hours. COMMENT: trial, accused disbelieved and unprovoked attack. Conviction registered. [ 72 ] In R v Langlois , 2004 BCPC 195 , an on-duty police officer was discussing traffic violation notices with the complainant when the complainant insulted the officer with an obscenity. In response, the officer grabbed the complainant, dragged him in a headlock into the detachment, struggled with him, and choked him.

While the accused expressed regret for the upset to his family, he did not offer an apology to the victim or express regret for his actions. A letter from a psychologist indicated that, at the time of the events, the officer was under considerable stress due to a number of illnesses in the family, and Bagnall J. accepted that there may well be a connection between those difficulties and the aberrant nature of the behaviour. The accused was convicted of assault, and sentenced to a conditional sentence order of 21 days. No firearms prohibition was ordered. COMMENT: provocation minimal.

Conviction registered. [ 73 ] R v Tait , 2005 BCPC 273 , involved a police officer who was convicted of assault causing bodily harm. The officer had arrested the complainant and put him into his police vehicle when the complainant spat in the face of the officer. The officer responded with three quick blows to the jaw of the complainant, breaking his jaw. Baird Ellan J. found that while the complainant was not physically confrontative; he was a difficult person, clearly antagonistic, and had challenged the officers both verbally and with body language.

The officer’s three quick blows were found to be the direct and immediate response to the complainant spitting in his face, and the case was viewed as being more similar to those involving a fleeting or heated reaction rather than a campaign of gratuitous aggression. The accused was given a suspended sentence with 18 months probation and 40 hours of community work service. COMMENT: provocation and resistance unlike at bar. Conviction registered. [ 74 ] In R v McKenna and Hennessey , (2009 May 2006), Terrace 24476-1 (BC Prov. Ct), the accused entered a late guilty plea to a charge of assault.

The complainant in the case had been brought back to the detachment after his arrest for impaired driving. During the fingerprinting process, the complainant was uncooperative and had his fists clenched. The accused, the watch commander on the night in question, twisted the complainant’s arm behind his back and instructed another more junior officer to apply a taser to the complainant three times with the aim of persuading the complainant to be fingerprinted.

While finding that the complainant used profanity throughout the incident and was uncooperative, Milne J. also found that this was not a situation where things were done in the heat of the moment, but that the accused was clearly in control of the situation. The accused was granted a conditional discharge. COMMENT: complainant was uncooperative and police officer acted spontaneously. [ 75 ] In R v Sweet , 2007 BCPC 240 , a person was arrested following a dangerous, high speed car chase that involved police from several municipalities.

The complainant, the driver of the vehicle, was injured when he lost control of the car causing it to leave the roadway. The complainant was unresponsive and taken from the car by the accused. The accused laid the complainant prone, handcuffed him, and then kicked him in the head with significant force. The accused police officer pled guilty at an early stage to a charge of assault causing bodily harm. The accused also took significant, self-initiated steps towards rehabilitation, such as counselling and anger management programs, at his own expense.

The circumstances were highly emotional and dangerous, as it involved a high- speed chase that lasted many, many miles and many lives were put in jeopardy. The accused was given a conditional discharge and 100 hours of community work service. COMMENT: the context (dangerous car chase) was highly emotionally and provided an explanation for police officer’s criminal actions. The aforesaid distinguishes the case at bar. [ 76 ] In R v Peters , 2008 BCSC 1839 , the accused was an RCMP officer and had two bicycles stolen from his residence.

One of the bicycles was recovered, but the accused believed the complainant had information about the theft and location of the still missing bicycle. While on duty, the accused located the complainant, asked him to get into his police cruiser, and drove him to another location to meet up with another officer. After letting the complainant out of the vehicle, the accused demanded to know where the other bicycle was, and then punched the complainant three times in the face and also struck him in the torso with his knee.

While in the car, the complainant had become agitated and angry, punched the silent patrolman, and was verbally abusive. However, when the complainant was let out, he did not make any aggressive move or gesture towards the accused. The accused was sentenced to a conditional sentence of 6 months and 50 hours of community work service. A DNA order and a firearms prohibition were also imposed. COMMENT: conviction registered. The complainant was uncooperative. [ 77 ] In R v Eegeesiak , 2010 NUCJ 10 , a decision of the Nunavut Court of Justice, an Inuk RCMP officer entered a guilty plea to

two charges of assault. On two separate occasions, the accused had assaulted two Inuit men who were in police custody. The accusedwas posted in his home community of Iqaluit where he frequently policed relatives, friends and families that he had known all his life.Both of the complainants in the case had had what the accused considered to be negative interactions with relatives of the accused. Theassaultive behaviour by the accused included choking and pushing that resulted in one of the complainant’s head being repeatedlybanged on a table.

The accused was given a suspended sentence with a period of probation of one year on each charge to be servedconcurrently. COMMENT: personal animosity between accused and complainant. [78] R v Thomas, 2012 ONSC 6653, a decision of the Ontario Superior Court of Justice, involved an off-duty police officer. Whileoff-duty, the accused was driving home with his girlfriend and two young daughters when a car driven by the complainant came up frombehind at a high rate of speed, flashed its lights and followed closely.

The complainant’s car first passed the accused’s car, and then cuthim off requiring the accused to take evasive action in order to avoid an accident. The accused eventually pulled over and arrested thecomplainant for dangerous driving, and a physical altercation ensued. At trial, the force applied during the arrest was found to beexcessive. The accused was convicted of assault causing bodily harm, and initially sentenced to a period of 90 days in jail, to be servedintermittently.

An appeal of sentence was allowed, and a sentence of one-year probation with 100 hours of community work service wassubstituted due to the fact that the accused was an unusually skilled police officer that had served his community in an exceptional way. COMMENT: assault causing bodily harm wherein excessive force applied. Conviction registered. [79] R v. DED, 2007 ABQB 508, involves guilty pleas of assault and uttering threats by the accused, a 23-year member of theRCMP, against his daughter and her friend. The daughter of the accused had been caught using drugs and had run away.

While theaccused was not home, his daughter and her friends stole his vehicle and were arrested. The accused and his wife went to the RCMPdetachment, and upon seeing his daughter’s friends in cells, the accused stated that he would “break their necks” if they ever stoleanything of his again. When seeing his daughter, the accused found her to be defiant and gave her a “cuff” to the side of the head.

Theaccused later returned to find his wife and daughter in an altercation, and being emotional and fearful that his daughter would run awayagain, he put his right hand on her neck and pushed her back and held her without restricting her breathing. The accused was initiallysentenced to a fine of $500 on each count, and on appeal was granted a conditional discharge. COMMENT: can be distinguished,because it involved the accused’s daughter and therefore it was an understandably emotionally charged situation for the accused as aparent. [80] In R v.

Dugdale, [2005] OJ No 5690, a 5-year member of the police assaulted a detainee who was in the police station becausehe needed to give a breath sample. The detainee was being very uncooperative, at times argumentative and perhaps “playacting”throughout the process, and the officer became very frustrated. At one point, the officer grabbed the detainee by the throat and later usedhis boot to push the detainee’s leg off of a chair, which caused the detainee to roll to the floor.

The sentencing judge found that no greatdegree of force was applied by the accused; there was nothing that actually constituted a “kick”, and that there are no allegations ofinjury. The accused was sentenced to a conditional discharge with 100 hours of community service. COMMENT: differs from the case atbar in that no great degree of force was used, no injuries were alleged, and the actions and attitude of the complainant precipitated thefrustrations of the accused. [81] R v.

Griffin, (PE SCAD), [1975] PEIJ No 64 involves a police officer who was found guilty of assaultagainst a detainee by striking him in the face and eye with a “billy stick”. The complainant was arrested for creating a disturbance in awell-known motel, and it was very difficult for officers to first, get him into the police car, and then out of the police car and into the jailbuilding. It was during the time that the accused was trying to get the difficult complainant into the cellblock that he struck thecomplainant with his “billy stick”.

The accused was initially given a suspended sentence, which was varied to an absolute discharge onappeal. On appeal, it was found that the trial judge gave undue weight to the actual results of the assault rather than the probable results.COMMENT: this case is distinguishable in that the complainant had been physically challenging to deal with throughout the arrest andtransportation process. [82] In R v. Hooper, 1991 Carswell NB 170, the accused, a peace officer tasked with commercial vehicle inspections, was convictedof assault.

On the day of the incident, the accused was stopping commercial vehicles to ensure that they complied with weight limits.The accused stopped the complainant’s truck for a second time that day, and an argument ensued about whether the complainant had toturn his truck around to be reweighed. The accused asked for the complainant’s license and registration, which the complainant producedbut refused to let go of. The accused either twisted the complainant’s thumb and wrist to get the license, or at the very least, tried to prythe complainant’s thumb away.

The accused was sentenced to a fine of $300, and on appeal, was granted an absolute discharge.COMMENT: Hooper can be distinguished in that there was a markedly lesser level of violence involved and the complainant had failedto comply with the peace officer’s requests. [83] R v. Kidd, 1998 CarswellOnt 1772 concerns a police officer who was convicted of assault causing bodily harm. Thecomplainant had failed to stop his vehicle after the police had signalled for him to do so, and when he finally stopped, he was arrestedand handcuffed.

There was evidence that the complainant had jostled a female police officer who was holding him and had moved herfour feet. The accused arrived at the scene and witnessed the jostle, and struck the complainant in the face with his fist. At first instance,the accused was sentenced to a 6-month conditional sentence order and one hundred hours of community service. On appeal, thesentence was substituted with a conditional discharge along with one hundred hours of community service.

COMMENT: Kidd isdistinguishable in that the accused had believed that the complainant had had a physical altercation with his colleague and had acted inreaction to that perceived altercation. [84] In R v. Krentz, 1991 CarswellOnt 1798, the accused, a police officer, was convicted of assault. The incident took place outsideof a bar where a fight broke out, and the police were attempting to arrest and put an individual into the police car, but another individualpresent complicated matters by opening the police car from the other side and releasing that individual.

The complainant was among a“hyper”, screaming, and yelling crowd of 15 to 30 people, and the complainant did not like the manner in which the police were puttingthe individuals into the car. The complainant made this view known to the accused, the sole officer tasked with crowd control, andshortly after, the accused grabbed the hair of the complainant on the side of the head and pushed the complainant against the police car.The trial judge sentenced the accused to 14 days in jail.

On appeal, the court disagreed with the trial judge’s inferences regarding thelevels of hostility and intimidation in the situation, and found that the accused did not use excessive force in the circumstance. Theconviction was quashed. COMMENT: Krentz can be distinguished on the grounds that the level of force used was lesser, and because,

unlike the current case, the accused had been carrying out his duties within a hostile and intimidating situation. [ 85 ] In R .v Lambert, 2010 BCPC 151 , a police officer was found guilty of assaulting a prisoner in his custody. The sentencing judge found that it was not a situation that required the implementation of force. The accused was sentenced to a conditional discharged with 25 hours of community work service. COMMENT: [Not enough facts to properly compare and contrast]. [ 86 ] In R v. Reddy , 2007 BCPC 401 , an off-duty RCMP officer was found guilty of assault.

The accused had been off-duty and socializing with other off-duty officers at a restaurant when the accused believed that another group of men, including the complainant, were making gestures at him and his friends and were encouraging him and his friends to fight with them. When the accused went outside to speak with the men, the group turned towards the accused and were carrying weapons including a baseball bat, a baton and a sword. The complainant ran towards the accused with the sword in the air.

The accused went back into the restaurant and then pursued the men in his personal vehicle while calling 911 to request police assistance. When the group’s car was stopped and the individuals were removed from it, the accused entered into a physical altercation with the complainant. The trial judge found that the accused had grabbed the complainant’s jacket and that there was some other pushing or touching, but also found that the grabbing did not involve a significant amount of force. A conditional discharge was imposed as well as 30 hours of community work service.

COMMENT: Reddy can be distinguished in that there was a much lesser level of violence involved, and that there had been a preceding event initiated by the complainant that had sparked the accused’s reaction. [ 87 ] R v. Sweeney, 2000 CarswellOnt 5276 concerns an accused found guilty of assault causing bodily harm stemming from an incident at a drinking establishment. The accused knocked the victim to the ground and viciously stomped on the victim repeatedly while he lay unconscious. The accused was given a conditional discharge with 120 hours of community work service to be followed by 12 months of probation.

COMMENT: From a reading of the case, it does not appear that the accused in Sweeney was a police officer. As a result, this case is distinguishable in that different sentencing objectives need to be taken into consideration when the individual charged is a police officer. [ 88 ] R v. Wallator, 1994 AJ No 193 , involved an assault by the accused on his wife. The accused was a 15-year member of the police, and he lost his temper and threw a set of keys at the face of his wife.

The accused and his wife had a stormy relationship with many arguments and physical confrontations, and had been divorced, remarried, and were separated again at the time of the incident. The wife was struck in the ear and her earring was ripped out of her earlobe, which left a permanent scar. The accused plead guilty to assault and the sentencing judge found that it was an exceptional case where a conditional discharge was appropriate.

COMMENT: Wallator can be distinguished in that the incident occurred in the context of an on-going family dispute while the officer was off duty and not in the course of an arrest of an unrelated individual. ANALYSIS AND DECISION: [ 89 ] I have considered the aggravating and mitigating factors and the case law. [ 90 ] The purpose and principles of sentence are found in

section 718 of the Code ; “S. 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other person from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations to harm done to victims or to the community and; (

f) to promote a sense of responsibility in offenders , and acknowledgement of the harm done to victims and to the community. [ 91 ] Under Code

Section 718.2, a court that imposes a sentence shall also take into consideration the following principles: “(

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances ; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;” [ 92 ] As above-stated,

section 718.2 (a) (iii) mandates a Court to consider that a breach of trust or authority is deemed to be an aggravating circumstance in imposing a sentence. This case involves that consideration.

[ 93 ] Police officers occupy a special and unique position in our society.

Section 718.02 gives primary consideration for denunciation and deterrence in cases of persons assaulting peace officers. “ The public places a great deal of trust in police officers. Police officers are allowed to do things which other citizens cannot do. They are allowed to carry weapons. They can enter private property and even in some circumstances break the law which other citizens cannot do. The public pays them and provides them with appropriate training. Not all citizens are suited to be police officers. Those with low levels of tolerance or high levels of frustration are hopefully weeded out early on”. ( Regina v. Sweet

(2007) BCPC 240 para. 31) [ 94 ] Weitzel J. continued in Sweet (supra): “........the Canadian public expects a special manner of measured behaviour and response from these specially-trained members who are thus placed in a special position of trust.

If that trust is breached in a criminal way, then the consequences will be and should be more severe than for an ordinary citizen who commits the same crime, because of the special position of trust that the officer held at the time and because of that officer's knowledge of the consequences which would flow from its perpetration.” (para. 32) [ 95 ] Police officers who offend ought to receive more severe sentences than those imposed on ordinary persons. ( Regina v. Cusack (1978) 6 C.R. (3d) p.2) [ 96 ] I conclude that the paramount sentence principles in this case are denunciation and general deterrence.

The sentence must denounce the criminal conduct and act as a deterrent not only to Cst. Bal but also to other police officers. [ 97 ] The issue of rehabilitation has been initiated by Cst. Bal prior to his guilty plea. Specific deterrence has also been addressed by Cst. Bal. [ 98 ] Generally speaking, as revealed in some of the case law, Courts have held that, for the principles of sentencing, discharges have been granted to police officers charged with assault, where the violence is relatively minor and in response to “the heat of the moment” or some other provocation.

Discharges have also been granted in cases of serious assaults, though relatively few in number. The assault before this Court cannot be said to be minor. It was serious. [ 99 ] At bar, Cst. Bal and Navas-Rivas did not know each other. There should not have been any animus. Furthermore, Navas-Rivas was not one of the suspects in the initial cell phone robbery surveillance initiative. [ 100 ] The video revealed that there were a sufficient number of police officers to affect the arrest. Cst. Bal’s fellow officers acted within policy guidelines and did not show aggressiveness.

They simply acted professionally in securing their objective. The video also showed there were no concerns of officer safety for the accused or his colleagues. [ 101 ] Navas-Rivas was not resisting or moving. In fact, he lay passively on the pavement, face down, with arms spread for approximately 14 seconds before Cst. Bal arrived on screen. Cst. Bal swiftly moved to Navas-Rivas. Navas-Rivas appeared to be cooperating and compliant throughout. [ 102 ] The term “in the heat of the moment” generally means “angry and not thinking”, and almost always, there is a context within which the officer acts.

The phrase can arise in situations where a person says something they do not really mean or say that they are going to do something they do not intend to carry out. In other words, persons say something without giving their words any real thought. Physical events can be occasioned by anger or panic that led to certain things being said or done without having been clearly thought through. [ 103 ] Another feature of the “in the heat of the moment” explanation may be the aspect of urgency.

In the context of a physical altercation, decisions are often made in the “heat of the moment” and that there is “ very little time for reflection and for the ‘nicely calculated less or more’ in assessing the force necessary to repel the attack ”. ( R v Dube, CAQ, [1990] JQ No. 2217 ). [ 104 ] Therefore, there are three possible elements to consider: anger, panic and urgency. Mr. Hira argues that the actions taken by Cst.

Bal were more akin to urgency in the context, thus deserving of mitigation in sentence. [ 105 ] However, a review of the facts suggests several reasons why there may not have been an element of urgency or stress that would serve as a mitigating factor.

First, from the video, it can be seen that the complainant was not resisting arrest in any manner that would create a sense of urgency in the situation which would require a corresponding significant use of force. [ 106 ] Second, despite the arrest situation being deemed a “Code 5 takedown” or a high risk takedown, this categorization by itself also should not automatically create a sense of urgency. In contrast to Cst. Bal’s actions, from the video, it can be seen that other members of the Quick Response Team who arrested the other suspect did not feel that the situation warranted the use of force.

The other suspect’s reaction to the arrest was similar to that of the complainant – he did not appear to resist arrest in any manner. [ 107 ] Finally, if there was in fact an element of urgency to the situation, that urgency would likely have been created by Cst. Bal himself by breaking RCMP policies such as not holstering his firearm and instead placing it on the pavement within reach of the suspect.

If the urgency was self-created through personal error, perhaps this would lessen the mitigating effect of any potential urgency that is found to have existed at the time of the arrest. [ 108 ] The question herein is: What was the context to constitute Cst. Bal acting within the term “in the heat of the moment”? If this was not an event deserving of the term, then what can be said of Cst. Bal’s actions? Was it gratuitous and opportunistic violence? [ 109 ] It seems that Cst. Bal was prepared from the very beginning to be aggressive in the Code 5 take down.

All of his actions were such: these include the knee drop and the rough handling of arms of Navas-Rivas, the punch, the face wash onto the pavement and,

finally, the violent manner employed in getting Navas-Rivas to his feet. [ 110 ] The aforesaid premeditation or opportunity is reflected in the looking up to the right and then throwing the punch, and later by two (2) face washes. If the punch was to prevent Navas-Rivas from possibly getting the gun, what were the face-washes for? [ 111 ] Some of the cases deal with situations where “personal acrimony overtook professional responsibility.” In each case, a rationale or reason could be deduced from the circumstances.

In the case at bar, there is no rational explanation for why he would punch and face wash Navas-Rivas, notwithstanding counsel’s submission on that point. There is no rationale for Cst. Bal to be aggressive to start with, in contrast to the other police officers calmly going about their business. [ 112 ] Navas-Rivas was in a vulnerable position when the blow and face wash were administered. The complainant was obedient. [ 113 ] The gun had already been removed from the pavement before Cst. Bal struck Navas-Rivas. It is clear on Mr. Hira’s instructions that Cst.

Bal was concerned about the firearm and this is why he struck Navas-Rivas. If that was the case, it would seem logical that the striking was thought out and planned and not “in the heat of the moment”. Further, Mr. Hira suggests that Cst. Bal thought the gun was still present on the ground when the blow was struck and that Navas-Rivas was struggling when, in fact, neither case was correct. [ 114 ] Mr. Hira suggested that if the punch was premeditated, the accused would have looked not only to the right but also to his left to see if he was being observed.

As the accused looked only to the right before throwing the punch, Mr. Hira suggests that this fact corroborates Cst. Bal only wanting to locate the handgun and negates the punch as premeditated. [ 115 ] The video clearly depicts that Cst. Bal did not look down in the direction of the ground at the time he is said to be trying to locate the position of the gun. Rather, the video shows that he looked upward as if he was trying to see if anyone was watching him. [ 116 ] I conclude that the punch and face wash were committed neither “in the heat of the moment”, as claimed by Mr.

Hira, nor as alluded to in the case law. Further, I do not agree with Mr. Hira’s characterization of how and why the accused proceeded in the arrest. I find that it is impossible to accept the explanation for the assaults in the face of the inexplicable. The video provides the obvious that these two acts, in the arrest, were nothing short of incomprehensible and gratuitous violence administered by an on-duty police officer. [ 117 ] The question to be asked is: Would the ability of the public to trust the police be compromised, given the particular circumstances of this case, if a discharge was granted?

The answer to that question is: Yes. [ 118 ] While I am satisfied that Cst. Bal’s actions were out of character and aberrant, nonetheless, his acts were sufficiently egregious to conclude that registering a discharge would be contrary to the public interest. As for the cases wherein a discharge was granted, I find that the case at bar is distinguishable. The reasons for the assault in those other cases are clear and, given the context, explicable. [ 119 ] Cst.

Bal’s duty was to uphold the law, not break it. [ 120 ] I agree with the Crown submissions and conclude, with this fact pattern, the appropriate disposition is a suspended sentence. [ 121 ] This sentence is meant to denounce and deter those who, by committing a criminal act, breach public trust and undermine public confidence, after having been, by law, provided with uniforms, guns and authority. When that trust and confidence is transgressed, society demands significant accountability. [ 122 ] There will be a probation order for a term of six (6) months.

Aside from the statutory conditions, the accused will report to a probation officer forthwith and thereafter as and when directed by the probation officer. [ 123 ] The accused will attend to counselling as directed by the probation officer. [ 124 ] The accused will complete 25 hours of community work service. The community work service will be comprised of lecturing peace officers about methods for peace officers to control their aggression, stress and anxiety, as well as the consequences for failing to do so, and will be arranged by the accused to the reasonable satisfaction of his probation officer.

The accused will provide reasonably satisfactory written confirmation to his probation officer of his completion of these community work service hours within the first four (4) months of his probationary term. [ 125 ] Upon the probation officer being satisfied that the counselling is being attended to and that the community work service has been completed, the accused will no longer be required to report or attend to the probation officer. [ 126 ] I make no order with regard to s.110 of the Code . [ 127 ] There will not be a DNA order. [ 128 ] There will be a victim fine surcharge of $100.00 ___________________________ R.

D. FRATKIN, P.C.J.

EXHIBITS: #1 Report to Crown Counsel Narrative #2 Dash board DVD video recording #3 Criminal record of Matthew Navas-Rivas #4 Reference letters #5 Letter of apology CASES REFERRED TO: R v Canada (Royal Canadian Mounted Police, [1981] BCJ No 856 R v. Cline [1990] AJ No 1200 R. v. Grant [1995] A.J. No. 148 R v. MacDonald [1996] AJ No 1099 R v Groot, 2000 CarswellOnt 2973 R v Langlois, 2004 BCPC 195 R v Tait, 2005 BCPC 273 R v McKenna and Hennessey, (2009 May 2006), Terrace 24476-1 (BC Prov. Ct) R v Sweet, 2007 BCPC 240 R v Peters, 2008 BCSC 1839 R v Eegeesiak, 2010 NUCJ 10 R v Thomas, 2012 ONSC 6653 Regina v.

Cusack (1978) 6 C.R. (3d) 2 R v Dube, CAQ, [1990] JQ No. 2217 R v. DED, 2007 ABQB 508 R v. Dugdale, [2005] OJ No 5690 R v. Griffin, (PE SCAD), [1975] PEIJ No 64 R v. Hooper, 1991 Carswell NB 170 R v. Kidd, 1998 CarswellOnt 1772 R v. Krentz, 1991 CarswellOnt 1798 R v. Lambert, 2010 BCPC 151 R v. Reddy, 2007 BCPC 401 R v. Sweeney, 2000 CarswellOnt 5276 R v. Wallator, 1994 AJ No 193