R. v. Conlon Date:, 2011 BCPC 59

Citation: R. v. Conlon Date: 20110304 2011 BCPC 0059 File No: 71060-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEVEN CONLON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.F. de WALLE Counsel for the Crown: M. Kaay Counsel for the Defendant: G.J. Harris Place of Hearing: Kelowna, B.C. Dates of Hearing: December 6, 7, 8, 21 and 22, 2010 Date of Judgment: March 4, 2011 CHARGE AGAINST THE ACCUSED [ 1 ] The accused, Steven Conlon, is charged that on or about the 13 th day of February, 2009, at or near Kelowna, in the Province of British Columbia, in committing an assault upon the complainant, Crystal Young, did cause bodily harm to the complainant, contrary to

Section 267 (

b) of the Criminal Code . BACKGROUND

SUMMARY [ 2 ] On February 13, 2009, at approximately 5:40 p.m., Constable Hall attempted to arrest Mark Pauls who was arrestable on a Canada wide warrant. Constable Hall observed Mark Pauls standing outside a residence at 820 Thompson Road in Kelowna, B.C. When Constable Hall approached Mark Pauls and introduced himself as a peace officer, Mark Pauls discharged a can of pepper spray into the officer’s face. [ 3 ] A brief foot chase ensued during which Constable Hall shot and wounded Mark Pauls.

Other RCMP members including the accused, Constable Steven Conlon, subsequently attended the scene on Thompson Road. [ 4 ] Thompson Road is located in the suburb of Rutland. The residences located at numbers 820 and 890 are located on typical residential sized lots. The two homes are separated by three other homes and a distance of roughly 150 meters. [ 5 ] At the time of the pepper spray incident, a female, Brandy Fahl, was standing next to Mark Pauls. Police subsequently determined that Brandy Fahl may have entered the residence at 820 Thompson Road and decided to enter the residence without a search warrant.

[ 6 ] On entering the residence, police were met with a number of individuals. All of the individuals in the residence complied with the directions of the police to lie down on the ground and show their hands. The one exception was the complainant, Crystal Young, who remained standing in the living room of the residence while holding a pit bull dog on a leash. The pit bill dog bit the accused.

The accused struck the dog with his right hand and then struck Crystal Young in the face with the same hand. [ 7 ] There is no question that the accused, Constable Steven Conlon, applied force to Crystal Young by punching her in the face. There is also no doubt that Crystal Young did not consent to the application of physical force.

ISSUES [ 8 ] The issues that arise in this case include the following: 1) Credibility; and 2) Did the police, as a result of exigent circumstances, have the authority to enter into the residence at 820 Thompson Road; and 3) Does s. 25 of the Criminal Code apply on the facts of this case; and 4) Was the accused, pursuant to Section 34(1) of the Criminal Code , acting in self defence when he struck Crystal Young. FACTS AND EVIDENCE Constable Hall [ 9 ] Constable Hall has been a member of the RCMP since January, 2006. He was on duty with the Property Crime

Section in Kelowna on February 13, 2009. On that day he was conducting surveillance work in an unmarked police vehicle. [ 10 ] Mark Pauls was an individual who was known to Constable Hall. Mr. Pauls was described as a targeted offender and Constable Hall was aware that there was a Canada wide warrant for the arrest of Mr. Pauls on the outstanding warrant. At approximately 5:40 p.m. on February 13, Constable Hall spotted Mr. Pauls outside a residence located at 820 Thompson Road in Kelowna.

Constable Hall parked his unmarked police vehicle behind a brown Ford Explorer vehicle that was already parked in the residence driveway. He approached Mark Pauls and identified himself as a police officer. A female by the name of Brandy Fahl was standing beside Mr. Pauls. As soon as Constable Hall identified himself as a police officer, Mr. Pauls discharged a can of pepper spray into Constable Hall’s face. [ 11 ] He testified that Mr. Pauls took a step or two towards him and because he feared for his safety, Constable Hall removed his service revolver and fired at Mr. Pauls.

The service revolver jammed and when Constable Hall looked up, Mark Pauls was running down Thompson Road. A short distance away, Mark Pauls stopped, turned, and faced Constable Hall and threatened to pepper spray again while at the same time searching for something in his pocket. Constable Hall attempted to discharge his service revolver but again it jammed. A foot chase continued further down Thompson Road until Mark Pauls stopped in the yard of the residence located at 890 Thompson Road.

Constable Hall testified that Mark Pauls pointed and discharged the pepper spray at him and again was reaching for something in his pocket. He discharged the service revolver again and on this occasion he struck and wounded Mark Pauls. Mr. Pauls fell to the ground. [ 12 ] Constable Hall testified he called 911 on his cell phone telling the dispatcher that he was a peace officer and that a shooting had occurred at 890 Thompson Road. Constable Hall called for medical personnel and other police officers to attend the scene. The effects of the pepper spray began to take hold.

Constable Hall had difficulty breathing and he was gasping for air. He was experiencing pain in his eyes and when the medical personnel arrived at the scene, they attended to him by applying water to his face. [ 13 ] Constable de Jong was the first police officer on the scene to approach Constable Hall. He told her that he had shot Mark Pauls and that Brandy Fahl was also present. [ 14 ] Constable Hall said he could not recall asking Constable Conlon to do anything that related to the shooting incident.

He testified that he could not recall making any request to the accused, Constable Conlon, to do anything. [ 15 ] Corporal Jones then spoke briefly to Constable Hall. Constable Hall testified that he gave her some brief details of the incident. He advised her that he was the shooter and removed his service revolver from the holster and gave it to Corporal Jones. Constable Hall could not recall if the name Brandy Fahl came up in his conversation with Corporal Jones. Constable Whitbread [ 16 ] Constable Whitbread was in uniform and on duty on February 13, 2009.

At approximately 5:50 p.m. on that day, he responded to a call on his police radio of “shots fired” in the Rutland area of Kelowna. When he arrived on the scene on Thompson Road there was confusion. He observed a plainclothes RCMP officer standing by residence 890. He also saw a male person on the ground, later identified as Mark Pauls.

He testified that Pauls had obviously been shot and was seriously wounded. [ 17 ] Constable Whitbread noted that a bear spray canister, a large amount of 20 dollar bills and a knife were on the ground in the area where Pauls was lying. [ 18 ] Constable de Jong and Constable Paetz arrived on the scene shortly after Constable Whitbread. Constable Whitbread learned from Constable de Jong that Constable Hall, the plainclothes officer he had initially seen, had been pepper sprayed by a male person. She identified the male person as Mark Pauls.

Constable Whitbread secured the scene with police tape and subsequently attended to the hospital to provide security for Mark Pauls. When Pauls woke up following surgery, Constable Whitbread arrested Pauls on the outstanding warrant for parole violation. Constable de Jong

[ 19 ] Constable de Jong was the driver of the second police vehicle to arrive at the scene of the shooting. She was accompanied by Constable Paetz who was in training at the time. [ 20 ] Constable de Jong was in uniform and a member of the Kelowna General Duty section. When she arrived she observed an individual lying on the ground. She also saw Constable Hall who was in obvious distress, gasping for breath.

She asked Constable Hall “who got shot, what is the danger?” Constable Hall responded that he had been pepper sprayed and that he had shot Mark Pauls. [ 21 ] Constable de Jong asked Constable Hall if there was anyone else the police needed to worry about. She testified that Constable Hall replied “no” and then referred to a girl with a Ford Explorer. She tried to get more detail from Constable Hall and obtained the name of Brandy Fahl.

Constable de Jong testified that she used the police radio to broadcast the name Brandy Fahl to other members, saying that she was associated with the incident and that police needed to talk to her. She also mentioned that Brandy Fahl was connected to a Ford Explorer vehicle.

In cross-examination, Constable de Jong agreed that she may have broadcast the words “we need to find this Brandy Fahl and talk to her”. [ 22 ] Although Constable de Jong had some brief interaction with Constable Conlon at the scene, she did not talk to him specifically about Brandy Fahl. [ 23 ] Constable de Jong also testified that she was not concerned about any other firearms at the scene because her brief investigation at the scene revealed that the shots were fired by Constable Hall and his revolver was in a holster on his side. [ 24 ] Constable de Jong left the scene by ambulance to accompany Mark Pauls to hospital.

Corporal Jones [ 25 ] Corporal Jones was also on duty on February 13, 2009. She was conducting surveillance work as part of her duties on the property crimes unit when she heard the police dispatch report of shots fired in the Rutland area. She attended the scene and saw that other police vehicles and emergency response vehicles were already present. It was approximately 6 p.m. when she arrived. She saw a male person on the ground in front of residence 890 Thompson Road. She also saw Constable Hall being assisted to an ambulance.

She went to him and spoke to him briefly. [ 26 ] She testified that Constable Hall told her that he had attempted to identify Mark Pauls who was wanted on an outstanding warrant. He said he was pepper sprayed by Pauls. Fearing for his safety, Constable Hall said he fired shots at Pauls. He said Brandy Fahl was present but he did not know where she went. He said she was the owner of a brown Ford Explorer that was in the driveway of the residence at 820 Thompson Road. [ 27 ] Constable Hall also told Corporal Jones that he was concerned about his police vehicle that was at 820 Thompson Rd.

He also told Corporal Jones that the police should locate Brandy Fahl because she was with Mark Pauls at the time of the incident. [ 28 ] Corporal Jones seized Constable Hall’s firearm. She told Constable Conlon to attend at 820 to secure Constable Hall’s police vehicle and then to take Constable Hall away from the scene. She was expecting Constable Conlon to return to 890 but he did not. [ 29 ] Sometime later she saw Constable Conlon in front of the residence at 820 Thompson. She spoke to him in front of the residence. Constable Conlon told her that he had gone in the house.

He told her that he believed his right hand was broken, that he was bitten by a pit bull dog and that he hit the dog in the head. [ 30 ] Corporal Jones entered the home. She said there were people on the ground in handcuffs. Some of the people on the ground were being verbally aggressive.

She said she saw a female walking around who was saying that she needed to feed her dog and that she had been punched by one of the police officers. [ 31 ] Corporal Jones testified that she never gave anyone any order to enter into the residence at 820 Thompson and that there was no discussion with other police officers on scene and herself regarding entry into the home. CREDIBILITY [ 32 ] The credibility of the aforementioned witnesses, Hall, Whitbread, de Jong, and Jones is not in issue. The credibility of these witnesses was not challenged in any material respect.

These police officers did not participate in the initial entry into the residence at 820 Thompson. Their evidence relates to events that took place at the time of the shooting and up until entry was gained into 820 Thompson by other police officers. [ 33 ] I turn now to the testimony of the witnesses Brandy Fahl, Darcy Lenko and Crystal Young. Brandy Fahl [ 34 ] Brandy Fahl is 23 years of age. She takes medication for an obsessive compulsive disorder. She spoke very rapidly when giving her evidence and, as well, she was very nervous and jumpy in the witness stand.

She described herself as definitely “anti police”. [ 35 ] On February 13, 2009, Ms. Fahl started her day by using the drug crystal meth. She went to Crystal Young’s residence at

number 820 Thompson Rd. at 10:00 a.m. that day. She crashed on the couch for much of the day. Several other individuals were also present in the residence, including Mark Pauls, who she had met a month earlier. [ 36 ] At about 6:00 p.m. she left the residence with Mr. Pauls to go and buy some cigarettes. Her vehicle, a brown Ford Explorer, was parked in the driveway of the residence. [ 37 ] Up to the time she left the residence, Ms.

Fahl had not seen Crystal Young, and assumed that she had been sleeping in her bedroom all day. [ 38 ] The two of them walked out the front door and to the driveway where her vehicle was parked. Ms. Fahl noticed another vehicle that was parked behind hers. She did not recognize the car as a police car. She stated that a male person approached them and asked Mark if he was Mark Pauls. Mark Pauls responded by asking the identity of the male person. Pauls then produced a can of pepper spray and sprayed the male. [ 39 ] The male person was clearly Constable Hall who was not in police uniform. Ms.

Fahl was standing behind Constable Hall and as a result she was also pepper sprayed. Her face was burning so she turned to go back into the house. She could see Mark Pauls running away and the male person chasing him. She was not a witness to the shooting. [ 40 ] She went into the house to wash her face with water. When she left the washroom she saw Crystal Young for the first time that day. [ 41 ] Darcy Lenko, who was in the residence, told Ms. Fahl that there were police officers outside the house who were asking for her to go outside. She testified that there was no way she was going outside.

She said the police were knocking on the door and kept asking for the door to be opened. The police stated several times that the door needed to be opened or they would kick it in. She believed that the police needed a warrant to enter the residence and that others in the residence held the same belief. Not surprisingly, no one opened the door to the police. [ 42 ] She estimated that it was between 25 to 45 minutes from the time she re-entered the residence to the time police officers were outside asking to have the door opened. [ 43 ] Ms.

Fahl testified that at one point, two of the people in the house decided to make a run for it out the sliding door at the back of the home. She said the two did not even get out the door when three uniformed police officers came into the home through the same sliding back door. She was in the living room. Within a minute she said that two other police officers came up the steps from the front door. She got onto the ground in the living room when the police told her to do so. [ 44 ] She testified that she saw one of the police officers punch Crystal Young in the face.

She said the officer was one of the police who came through the front door and up the steps. In describing the incident, Ms. Fahl stated that Crystal Young was near the living room couch holding on to her dog Dakota. She was not sure but believed that Crystal was holding onto a leash or harness with one or both of her hands. She said the dog was barking and snarling. [ 45 ] She testified that a uniformed police officer was trying to push Crystal Young to the floor when, as she described it, the dog bit the officer in the arm, and he then punched Crystal in the face.

She was lying on the living room floor when she made these observations but she said that she was able to lift her head a bit. She also indicated that she could be wrong in her sequence of the events. [ 46 ] Ms. Fahl refused to give a statement to police at the time of the incident. She was taken to the police station and later released without any charges. Darcy Lenko [ 47 ] Darcy Lenko was in the residence at 820 Thompson Rd. on the day of February 13, 2009. He had been released from a Federal Penitentiary in the Lower Mainland a few days earlier.

He knew Crystal Young and was aware that she was connected to Mark Pauls, who he knew from jail. He decided to visit and stay at Crystal Young’s residence. [ 48 ] Mr. Lenko was inside the residence in the late afternoon. He saw Mark Pauls and Brandy Fahl leaving the house and shortly after that he heard a commotion outside. He heard gun shots and then saw Brandy Fahl coming back into the house yelling that Mark had been robbed. [ 49 ] Mr. Lenko went outside to see what was happening. He saw a vehicle parked behind the Ford Explorer so he went to check it. He saw that the vehicle was a police car.

He heard sirens and saw flashing lights down the street toward the residence at 890 Thompson. While on the street he testified that he was approached by a police officer who asked where Brandy Fahl was. He responded by saying that he did not know her whereabouts. [ 50 ] Mr. Lenko returned to the residence and went inside. He told everyone inside to lock the doors. He also told his friend Trevor to make a run for it out of the house. [ 51 ] Mr. Lenko testified that police were at the front door yelling at the occupants to open the door or it would be kicked in. Mr.

Lenko testified that he did not want to cooperate with the demands of the police officers. He was telling everyone in the house not to open the door and yelling at the police that they needed a warrant. [ 52 ] Up to this point in time Mr. Lenko had not seen Crystal Young and believed she was sleeping in her bedroom.

[ 53 ] He testified that the police were suddenly in the house. The police were yelling at everyone to get on the ground. He testified that he then saw Crystal Young appear, holding onto her dog Dakota. He said the dog was lurching, barking and up on its hind legs. He said that Crystal Young was holding onto the dog with both hands and could not get down on the ground although she was trying. He testified that a plainclothes police officer took two steps toward Crystal and punched her in the face. He said that she was punched between the eyes. [ 54 ] In describing the incident Mr.

Lenko testified that everything happened very fast. He was down on the living room floor on his stomach and handcuffed. He testified that it was possible that the dog bit the police officer but he could not be sure. He said he could not really see what the dog was doing. [ 55 ] Mr. Lenko has a lengthy and serious criminal record. His testimony was uncertain and vague in many respects. He was clearly not an enthusiastic Crown witness. During his testimony in response to questions he made comments such as “it was a long time ago”, “I don’t know” and “I’m not sure”.

There were also inconsistencies in his testimony. [ 56 ] I am of the view that Mr. Lenko’s evidence needs to be approached with some caution with regard to issues of truthfulness and reliability. Crystal Young [ 57 ] Crystal Young was 19 years old at the time of the incident on February 13, 2009. She lived on the main level floor of the residence at 820 Thompson Rd. Ms. Young is 5’7” in height and weighed 140 lbs. on the day in question. She was pregnant, although not visibly. [ 58 ] Ms. Young worked a night shift the evening of February 12 th and finished her shift at 7 a.m. on the 13 th .

She came home and went to sleep in her bedroom for the day. She woke up at approximately 6 p.m. on the 13 th . Her dog Dakota, a pit bull, was in the bedroom with her. [ 59 ] She woke up because she heard a commotion in the house. Her dog was agitated and barking. She got up and opened her bedroom door. She saw Brandy Fahl in the bathroom and smelled bear spray. She asked Brandy what happened and learned that Brandy was with Mark Pauls when Pauls pepper sprayed a police officer. She also saw that there were a number of other people in the residence as well.

Some of the individuals were known to her and others were not. [ 60 ] Ms. Young decided to leave the house to see what was going on. She went down the street to 890 Thompson. When she got down the road she learned that Mark Pauls had been shot by a police officer. Mark Pauls was her friend. She saw him lying on the ground and noticed that he was injured. She said that a female police officer told her to go home so she returned to her residence. [ 61 ] When she got back into the residence she returned to her bedroom. She looked out the bedroom window and saw that police officers were outside.

Police asked if Brandy Fahl was inside and she told the police that Brandy was not in the house. She testified she knew that Brandy was in the house but did not think it was any of the police’s business. [ 62 ] She testified that the police asked her to open the door or else they were going to come in. She did not want the police in the house and had no intention of opening the door. She said that others in the house were yelling that police needed a warrant. The police responded by saying they did not need a warrant and would kick in the door. [ 63 ] Ms. Young put Dakota on a leash and left the bedroom.

She said that Dakota did not do well under stress and that he was agitated and aggressive. The police kicked in the door and came up the steps into the living room. She was holding Dakota with a leash in one hand and had a cell phone in her other hand. She testified that she was holding Dakota back from attacking the police. She described the scene as chaotic. [ 64 ] Ms. Young testified that other police came into the living room from the back door. Police were yelling at everyone to get on the ground. She said that Dakota was barking and growling.

When the police told her to get on the ground Dakota was lunging up on his back legs, snarling and pulling on the leash. [ 65 ] She described that one police officer, not in uniform, reached over the dog and punched her in the face. She said the officer was wearing gloves and that he hit her once with a hard punch. She testified that he then grabbed her by the shoulder and pushed her to the ground. She testified that she did not anticipate being punched. She did not lose her balance and fall back as she was positioned against a couch when she was hit.

When she was pushed to the ground she told the officer that she was pregnant. [ 66 ] Ms. Young further testified that it was possible her dog Dakota bit the officer who punched her but she could not be sure. She could not recall seeing the officer striking the dog. [ 67 ] Ms. Young was removed from the living room into the kitchen. She testified that the police officer who punched her was making fun of her and said she had a nice face. He also said to her that next time she should get down on the floor. Ms. Young then asked police to call for an ambulance as she was experiencing stomach pains.

She was taken to hospital for observation. [ 68 ] Photographs taken at the hospital show redness around the area of Ms.Young’s right eye. She was released from hospital the next morning.

Her pregnancy signs were normal and x-rays of her face showed no evidence of any facial fracture. [ 69 ] Although this witness was not able to identify Constable Conlon as the police officer that struck her in the face, it is clear from other evidence in this case, including the testimony of Constable Conlon, that he was the police officer that punched her. [ 70 ] I will now turn to the evidence of the police officers who entered the residence at 820 Thompson Rd.

Constable Taggart [ 71 ] Constable Taggart has been a member of the RCMP for 3 years. He was on duty in uniform on February 13, 2009. At approximately 6 p.m. he heard a high priority call over his police radio. He headed to the scene in Rutland. After checking a taxi cab that was leaving the area he arrived on Thompson Rd. at approximately 6:30 p.m. He parked his police vehicle near residence 890 Thompson and started to walk toward 820 Thompson where he met Constable Conlon and Constable Brinnen. [ 72 ] Constable Conlon was in plainclothes while Constable Brinnen was in police uniform.

Constable Taggart testified that the three officers had a brief discussion in front of residence 820 Thompson, the Crystal Young house. [ 73 ] Constable Taggart testified that the three officers believed that Brandy Fahl was in the residence. They believed her vehicle, a brown Ford Explorer, was parked at the residence. They also believed that Brandy was somehow involved with the shooting incident. [ 74 ] The three officers went to the door of the residence for the purpose of getting Brandy Fahl out of the house and into custody for investigation purposes, as described by Constable Taggart.

They approached the front door and banged on the door while announcing “police, open the door”. The request was repeated several times. Constable Taggart testified that the responses from individuals inside the house were the words “fuck off”. [ 75 ] Constable Taggart testified that he asked several times for Brandy Fahl to come outside to speak with police. The response from inside the house was “fuck off, she is not here”. [ 76 ] Constable Taggart stood in front of the door. He kicked the door in and after three kicks, the door frame was breached and the three officers entered the residence.

Constable Taggart said there were a number of people in the living room area. Everyone was told to get on the ground. Constable Taggart testified that the only person who did not get on the ground was Crystal Young. [ 77 ] Crystal Young was standing in the living room holding onto a large pit bull dog. Constable Taggart said that Crystal was holding onto the dog with a leash and that the dog was acting very aggressive and lunging forward. Constable Taggart told Crystal to go to the ground but she said that she could not do that. [ 78 ] Constable Taggart then saw the pit bull lunge at Constable Conlon’s elbow.

At that moment, Constable Taggart decided to retrieve his police baton for the purpose of subduing the dog. He said that Constable Conlon was to his side and that they were about 5 or 6 feet away from Crystal. He turned to his left to reach for his police baton with his left hand and when he turned back he saw that Crystal was on the ground. [ 79 ] Constable Taggart testified that he did not see how Crystal ended up on the ground. He saw a bump on her head and took her to the bathroom. The dog was released in the bathroom and Crystal was taken to the kitchen.

Crystal said that she was pregnant so Constable Taggart called Emergency Services. [ 80 ] While still in the residence, Constable Taggart noticed that Constable Conlon was favouring his right hand as if it were sore. Over the next few days, Constable Taggart saw that Constable Conlon’s right arm was bandaged. Constable Paetz [ 81 ] Constable Paetz is an RCMP officer who was still in training on February 13, 2009. Constable de Jong was her trainer. [ 82 ] Constable Paetz was on duty in the late afternoon of February 13 when she heard the radio call of shots fired.

She drove to Thompson Rd. where she saw Mark Pauls lying on the ground and obviously seriously injured. She saw Constable Whitbread and also noticed that Constable de Jong was talking to Constable Hall who was stumbling around. An ambulance came to the scene. Constable Paetz learned that Constable Hall had been pepper sprayed by a male person. [ 83 ] Constable de Jong said that she was going to the hospital and told Constable Paetz to pick up some files at the Rutland RCMP Office and bring them to the Kelowna City Detachment.

Constable Paetz was planning to leave the scene as directed by Constable de Jong when she was approached by Constable Conlon. Constable Conlon said he needed some help from a uniformed member. Constable Conlon said that they needed to enter a house. At this time Constable Conlon was accompanied by Constable Taggart. They both told Constable Paetz that the decision to enter the house was not hers and that she would not be responsible.

They also told her that weapons could possibly be in the house. [ 84 ] The two officers also told Constable Paetz that they needed to get a girl named Brandy out of the house. [ 85 ] Constable Paetz related the sequence of events before entry into the residence at 820 Thompson took place. She recalled a number of requests by police to open the door and the eventual entry by force when Constable Taggart kicked in the front door. [ 86 ] Constable Paetz was the third officer to enter the front door, behind Constable Conlon and Constable Taggart.

When Constable Paetz entered the home she saw Crystal Young near the top of the stairs. Crystal was holding onto a leash that was attached to a pit bull dog. She said that Crystal was yelling for the police to get out of the house. Despite several demands by Constables Conlon and Taggart, Crystal did not get down on the floor. [ 87 ] Constable Paetz said that Crystal was kneeling and Constable Conlon was to her side. She testified that Crystal was about three feet away from her. She said that Crystal was trying to control the dog. The dog was acting ferociously but was not lunging at people.

She then saw the dog lunge toward Constable Conlon. She could see Constable Conlon’s arm moving in a backhand motion towards

the dog. She then described seeing the dog go down and heard Crystal cry out. She testified that these events happened very quickly. [ 88 ] Constable Paetz testified that she did not see Crystal getting hit. She testified that she was watching the other occupants of the house who were down on the ground on the living room floor. [ 89 ] Shortly after searching some of the occupants on the ground, Constable Paetz saw Crystal in the kitchen area. She said that Crystal was crying and that her eyes were puffy and red. Her face was also red. Constable Paetz did not see any significant injuries.

She also heard Crystal say that she was pregnant but that fact was not apparent to Constable Paetz. [ 90 ] Constable Paetz also testified that she heard one of the occupants of the house say “you can’t hit a girl like that”. She then heard Constable Conlon say that he did not think that she was a girl. Constable Browning and Constable Brinnen [ 91 ] Constable Browning was on duty, in plainclothes, training with the Lake Country Detachment Property Section, on September 8 th . [ 92 ] She was working with Constable Conlon when they received a call from Corporal Jones saying that there had been a shooting.

Constable Conlon was driving the police vehicle and they proceeded to Thompson Rd. [ 93 ] Constable Brinnen is an RCMP officer with 13 years experience. He is trained as a police dog handler. He also received a call on his police radio of a shooting in the Rutland area. He responded to the scene in his police vehicle. He received the call at approximately 5:50 p.m. [ 94 ] When Constable Browning arrived on the scene, she learned that Constable Hall had been pepper sprayed. Constable Hall told her that the police vehicle was parked in front of residence 820 Thompson so she walked to that location.

She noticed a male person, later identified as Darcy Lenko, looking inside the police vehicle. She said that Mr. Lenko displayed signs of intoxication and when she asked him what he was doing, he walked away and into the house at 820 Thompson. [ 95 ] Constable Brinnen testified that he learned at the scene that Constable Hall was the person who fired shots and had been pepper sprayed.

He further testified that he did not know the details of the role played by Brandy Fahl but said that the gist of the conversation of members at the scene was that she was involved as a witness or a participant in the incident. [ 96 ] At this point of time, Constable Browning’s only knowledge of the incident was that Brandy Fahl was a person of interest in the shooting incident. [ 97 ] She related that Constables Conlon, Taggart and Brinnen were together near the front of the house. She described how police asked Brandy Fahl to come out of the residence.

They were speaking to Crystal Young who was leaning out of an upstairs window. Crystal Young was asked several times to have Brandy Fahl come outside and each time she responded with the words “fuck off”. Crystal Young also denied that Brandy Fahl was present inside the house.

Constable Brinnen confirmed that efforts by members at the front of the residence to have Brandy Fahl come outside were met with no success. [ 98 ] Constable Browning testified that it was her understanding that Constable Conlon made the decision to enter the house. [ 99 ] The decision was made for Constables Browning and Brinnen to go to the back of the house to watch for people coming out of the home. [ 100 ] The two officers had just positioned themselves at the back of the house when they noticed a male and female on the outside deck of the house making their way to a set of stairs.

Constable Brinnen yelled at the two individuals to stop. The female stopped but the male ran back into the house. The two officers ran into the house to give chase to the male. Constable Brinnen testified that he made a quick judgment call to enter the house. He made the decision to enter the house because he was concerned the male person may be going for a weapon or destroying evidence. He was also concerned for the safety of the officers at the front door. [ 101 ] Constable Browning testified that she entered the residence and that at almost the same time the front door was broken in.

She saw Constable Conlon and Constable Taggart coming up the stairs leading to the living room. Police were telling everyone to get on the floor and everyone followed that command except for Crystal Young. [ 102 ] Constable Browning testified that Crystal Young was holding onto a pit bull dog and saying that she could not get down. She did not recall seeing a leash but said Young was trying to hold the dog down with both hands.

She said that Constable Conlon was telling Crystal Young, over and over, to get down, but Young kept saying she could not because the dog wants to bite. [ 103 ] She then described seeing the dog jump up and bite Constable Conlon in the right arm. She then saw Constable Conlon punch Young in the face with his right hand. Constable Browning further described seeing the blow hit the dog, the dog yelping and Crystal Young going down.

Crystal Young was holding her face and saying “you asshole, you just hit a pregnant woman.” [ 104 ] In cross-examination Constable Browning said that she saw Constable Conlon make one motion with his arm, the dog yelped and Crystal went to the ground. She described the arm movement as a very quick motion. [ 105 ] Constable Browning testified that she searched the home for people, but not for any weapons. [ 106 ] She later saw Crystal Young and Constable Conlon in the kitchen area. She did not observe any injuries to either person.

[ 107 ] Constable Brinnen testified that he chased the male down the hallway and tackled him. The male then became cooperative. He could hear noise coming from the living room. He left the residence with the male in handcuffs. As a result he did not see what happened between police and the other occupants of the house. [ 108 ] I turn now to the evidence of Constable Conlon, the accused, who testified in his own defence. Constable Steven Conlon [ 109 ] Constable Conlon completed his basic RCMP training in Regina in August 2006. He was assigned to Kelowna and finished his 6 months of basic field training in January 2007. [ 110 ] He was initially with the General Duty

Section and then moved to the Property Crime Unit. He was in plainclothes working the 3 p.m. to 12 p.m. shift on February 13 th . He received the transmission of a shooting in Rutland from Corporal Jones. It took him about 5 minutes to reach Thompson Rd. He drove past 820 Thompson and stopped in front of 890 Thompson where he saw flashing lights from emergency vehicles. He saw Corporal Jones, Constable de Jong and others at the scene. [ 111 ] He went to Constable Hall who was on his knees and in some distress. His eyes were red and he was having difficulty breathing.

Constable Hall said that Mark Pauls had pepper sprayed him and that Brandy Fahl was with Pauls. [ 112 ] Constable Conlon could see Mark Pauls lying on the ground. He could see some cash lying near Pauls and also learned that a knife was near Pauls on the ground. Constable Conlon was concerned about Constable Hall’s police vehicle which was by #820, a distance of 4 or 5 houses down the street. Constable Conlon told Constable Browning to go and secure the vehicle. [ 113 ] Constable Conlon testified that Corporal Jones said that Brandy Fahl was involved “in this” and that she needed to be found.

Constable Conlon knew Fahl to see her and was also familiar with the vehicle she drove. [ 114 ] Constable Conlon then got into his police vehicle and drove to 820 Thompson to keep an eye on Constable Browning. When he arrived he saw Constable Browning talking to Darcy Lenko. He also recognized Brandy Fahl’s Ford Explorer parked in the driveway of the residence. He also saw some bullet shell casings on the middle of the road near the next door residence at 840 Thompson. [ 115 ] Constable Conlon testified that he was concerned about Brandy Fahl. He was concerned about her role in the incident.

He was concerned about her health, whether she had been shot or hurt, and the fact that her vehicle was there, as was Constable Hall’s police vehicle. [ 116 ] He concluded that the crime scene was larger than the area in front of residence 890 Thompson and requested help to control traffic on Thompson Rd. [ 117 ] He approached 820 Thompson and spoke to Crystal Young who was looking out a window at the side of the residence. He testified that he identified himself as a police officer. Constable Taggart, in police uniform, was with him.

He said to Crystal Young that there had been a police involved shooting, that Brandy Fahl was involved and that he needed to talk to Brandy. He asked Crystal to bring Brandy to the front door, and that she was not in trouble. He asked three times but Crystal Young said no to the requests. These events took place at 6:10 p.m. [ 118 ] He further testified that Constable Taggart also asked Crystal to communicate with Brandy but was met with “fuck off, get lost”.

Crystal Young left the window and there was further communication through the front door but the occupants of the house were clearly not cooperative. [ 119 ] As police were standing by the front door, Constable Hall said that Constable Taggart mentioned exigent circumstances and that a warrant was not required to enter the residence. Constable Conlon testified that there were loud noises inside the residence, a dog was barking and people were yelling. [ 120 ] He said that the decision was made that Constable Taggart break in the door so that police could gain entry into the home.

Constable Conlon had a revolver in his right hand as he entered the house right behind Constable Taggart. He was followed by Constable Paetz. [ 121 ] Constable Conlon described going up the stairs to the living room area. He was at the top of the stairway landing and could see Constable Brinnen with Darcy Lenko. Everyone else in the residence was lying on the living room floor and he could see Brandy Fahl lying on the floor by the living room window. [ 122 ] He also saw Crystal Young who was standing with her hands cupped in front of her at waist height holding onto a dog leash.

He testified that as a result of his police training he was concerned about her hands and so with his gun pointed at her he directed her to get down on the floor. He said that he told her 7 or 8 times to get on the ground. In cross-examination he said that Crystal told him she could not get on the ground because she was holding the dog. [ 123 ] Constable Conlon described the dog as a white pit bull, weighing about 60 lbs.

He said the dog was barking and snarling. [ 124 ] Constable Conlon made the decision to put his gun into his left hand to free up his right hand so that he could put Crystal to the ground using what he described as an “arm bar” move. Just as he was about to grab hold of Crystal with the arm bar move, he felt weight on his right arm tricep. He looked down and saw that the dog was on his arm so he reacted by hitting the dog with a downward motion. He said the dog went down. [ 125 ] Constable Conlon testified that after hitting the dog he made an upward motion with his right arm and punched Crystal Young in

the face. He said he hit the dog with a forceful blow. [126] After Crystal was hit she said that she was pregnant. She was taken to the kitchen and Constable Conlon called for anambulance. At that time Constable Conlon admitted that he made an unprofessional comment by saying to Crystal: “Oh, you’re a lady?” [127] Constable Conlon noticed some swelling in the pinky finger on his right hand. At the hospital the hand was x-rayed and it wasdetermined there was a broken bone in the hand. He hand was casted.

Constable Conlon could not say when he broke his hand, whetherit was when he hit the dog or when he struck Crystal Young. John McKay [128] Mr. McKay is a retired police Inspector. He was qualified to give expert opinion evidence in the areas of “use of force trainingfor police” and “use of force by police in emergency situations”. [129] Mr. McKay comes to court with a lengthy background in police training. He has given expert evidence in various courts inWestern Canada.

He has taught numerous courses on the subject of “use of force” in police training. [130] He testified that the model used by the RCMP in their training on the use of force is known as the “Incident ManagementIntervention Model” or IMIM model. It is a model that operates on the principles of public safety and police officer safety as beingessential to ensuring public safety. [131] Under this model, the officer is trained to continuously monitor the situation, assess the risk, and apply the necessaryintervention to ensure public and police safety are maintained.

At one end of the scale is a cooperative or compliant individual whereverbal intervention is all that is necessary to deflect a confrontation, while at the other end of the spectrum involves the use of lethal ordeadly force in situations where the officer is faced with a threat of death or grievous bodily harm. [132] Mr. McKay testified that police are taught to use the “deflect and distract” approach when dealing with a threat from a knife, gunor other weapon. A punch to the head would be part of the “distract” aspect of defence. Mr.

McKay testified that pit bull dogs are notused in police training, however, be testified that the actions of Constable Conlon in striking the dog and Crystal Young would be inaccord with his police training. CREDIBILITY [133] Not surprisingly, there are a number of inconsistencies in the evidence of the witnesses who testified in this trial. The scene thatconfronted the police on Thompson Road was one of some chaos and confusion.

Events transpired quickly; particularly inside residence820 Thompson after police entered the home. [134] The witness, Brandy Fahl, presented in court with a demeanour that suggested extreme nervousness. She spoke very rapidly andat times was unintelligible. As with the testimony of the witness, Darcy Lenko, I approach the testimony of Miss Fahl with some cautionhaving regard to the reliability of their testimony. [135] The Crown must prove the charge of assault causing bodily harm beyond a reasonable doubt.

A reasonable doubt may arisefrom the evidence, or the lack of evidence, and also applies to the determination of credibility. [136] Whether or not someone intends to be truthful is obviously an important aspect of determining credibility, but more thantruthfulness is required. The evidence of a witness must also be sufficiently reliable to assist in objectively determining the facts.

Anobjective determination of fact requires that the court consider the evidence of each witness on its own and in the context of all of theother evidence. [137] I will say at this stage that I found all of the witnesses to be credible, with the exception of Darcy Lenko and Brandy Fahl. Buteven in the case of Lenko, and Fahl, there are aspects of their testimony that is corroborated by other witnesses. [138] In particular I found Crystal Young, the complainant, to be a credible and truthful witness who was doing her best to recall the events of February 13th.

I approach her testimony with caution due to her demeanour in court, and her anti police bias. However, shegave her evidence in a forthright manner and was not shaken in a lengthy cross-examination by experienced defence counsel. Mostimportantly, the significant aspects of her testimony are supported by evidence provided from other witnesses, including the accused,Constable Conlon. [139] I also found Constable Conlon to be a credible witness. He gave his evidence in a forthright and candid manner.

He was notevasive in his testimony and even agreed with suggestions made to him in cross-examination that could be viewed as not beingparticularly helpful to his defence. [140] What this Court is faced with are inconsistencies that, to a large extent, are minor and not particularly relevant to the issues to bedecided. [141] I am mindful that when the Court is faced with conflicting versions of events, trial judges ought to apply the governingprinciples from Nadeau, Morin, (SCC), [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193, and R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, in reaching their decision. [142] In R. v. Brown, [2007] O.J. No. 1580 (S.C.J.), Hill J. Noted at paras 38-39: 38 A determination of guilt or innocence must now, however, devolve into a mere credibility contest between two witnesses. Such anapproach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonabledoubt: W.(D.) v. The Queen (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) at 409 per Cory J.; Avetsyan v. The Queen

(2000), 2000 SCC 56 , 149 C.C.C. (3d) 77 (S.C.C.) at 85-87 per Major J. However, as recognized in Regina v. Chittick, 2004NSCA 135 , [2004] N.S.J. No. 432 (C.A.) at para. 23-25: It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they providethe bulk of the evidence as to what happened. This is a necessary part of the judge’s duty. While it is not the end of the journey ofdecision-making, it is a necessary intermediate step along the way.

Indeed, the first two elements in a proper jury instruction on thisissue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Thosefirst two steps are: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility hasbeen completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that lastcrucial step is as follows: Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 39.

It must be emphasized that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion upon the Crown: seeW.(D). v. The Queen, supra at 409. In other words, to use disbelief of the accused’s evidence as positive proof of guilt by movingdirectly from disbelief to a finding of guilt constitutes error: Regina v. H.(S.), [2001] O.J. No. 118 (C.A.) at para. 4-6 per curiam. Thecourt must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt. The obligation of W.(D.)analysis was summarized in Regina v.

Minuskin (2004), (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550: It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instructionwas intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused’sevidence and then at the rest of the evidence.

It should, however, be clear from an examination of the reasons that at the end of the daythe trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is not necessaryfor the trier of fact to believe or accept those principles is that it is not necessary for the trier of fact to believe or accept the defenceevidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole mayleave the trier of fact with a reasonable doubt. As it was put by Cory J.

In W.(D.) at p. 757, the trier of fact must acquit even if he or shedoes not believe the accused’s evidence because they have a reasonable doubt as to the accused’s guilt “after considering the accused’sevidence in the context of the evidence as a whole.” [143] I will now turn to the issue of exigent circumstances and entry into the residence at 820 Thompson Road. DID THE POLICE, AS A RESULT OF EXIGENT CIRCUMSTANCES, HAVE THE AUTHORITY TO ENTER THERESIDENCE AT 820 THOMPSON ROAD? [144] Crown takes the position that police did not have the grounds to obtain a search warrant to enter the residence at 820Thompson.

Crown further argues that police had no grounds to arrest Brandy Fahl. Furthermore, Crown submits that exigentcircumstances did not exist on the facts of this case such that would lawfully allow police to enter the residence. [145] Defence takes the position that exigent circumstances existed at the time police made the decision to enter the residence. [146] The relevant statutory provisions are contained in the Criminal Code of Canada and in particular ss. 529.3 (1) and (2) that readas follows: 529.3

(1) Without limiting or restricting any power a peace officer may have to enter a dwelling house under this or any other Act orlaw, the peace officer may enter the dwelling house for the purpose of arresting or apprehending a person, without a warrant referred toin

section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in thedwelling house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would beimpracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entry into the dwelling house is necessary to prevent imminent bodily harm or death to anyperson; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling houseand that entry into the dwelling house is necessary to prevent the imminent loss or imminent destruction of the evidence. 1997, c. 39. S.2. [147] There are a number of authorities that have dealt with the question of exigent circumstances. The starting point is the Feeneydecision in the Supreme Court of Canada. As Sopinka J., as he then was, said in R v. Feeney, (SCC), 1997 2 S.C.R. 13at 53:

Exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of acrime. [148] In R. v. Crocker 2009 BCCA 388 , 2009 B.C.C.A. 388, it was held that the Crown must establish that the warrantlessentry into the residence “could be justified both subjectively and objectively based on exigent circumstances”.

The Court held that thepolice officer had to subjectively believe that exigent circumstances existed and the evidence must have established an objective basis forthat belief. [149] No evidence was seized as a result of the police entry into the residence at 820 Thompson. No weapons or firearms were seized,nor did police make an effort to obtain a search warrant once they left the residence to search for any evidence whatsoever. [150] Case authorities also make it clear that police have a common law duty that include the preservation of the peace, the preventionof crime and the protection of life and property.

R. v. Godoy (1999) (SCC), 131 C.C.C. (3d) 129 S.C.C. [151] Although no Charter issues are raised in this case, the question of whether or not the police entry into the residence was lawfulis relevant to the issue of whether or not Crystal Young, a tenant, had a duty to comply with police demands. The Crown submits that inthese circumstances Crystal Young had no duty to retreat and was entitled to take reasonable steps to protect her home. [152] Therefore it is necessary to examine the evidence that relates to the foundation for the police decision to forcibly enter thehome.

In other words, did the police officers who entered the residence subjectively believe that exigent circumstances existed and doesthe evidence establish an objective basis for that belief. [153] The three police officers who entered the front door of the residence were Constables Taggart, Paetz and Conlon. The twoofficers who entered the rear of the residence were Constables Browning and Brinnen. [154] Constable Taggart testified that he was the junior member and it was not his place to ask questions. He also said that, inhindsight, he wished he had asked questions.

He believed that there was a handgun that was unaccounted for and that there was a need totalk to Brandy Fahl. [155] Constable Paetz testified that it was not her decision to enter the residence and she simply offered to help Constable Conlon. [156] Constable Browning testified that she was not involved in the plan to enter the residence. Her understanding was that policeneeded to go into the home to get Brandy Fahl. She believed that Constable Conlon was the one to make the decision to enter the home. [157] Constable Brinnen was the most senior of the members who entered the residence.

As I have already described, he made aquick decision to chase a male person who was apparently leaving the home back into the home. [158] Before entering the home, Constable Brinnen was aware that Constable Hall was the shooter in the earlier incident. He did notknow the details of Brandy Fahl’s involvement.

He said that when he met Constable Conlon in front of the residence, the gist of theconversation was that Brandy Fahl was in the house and that she was involved in the incident as a witness or a participant. [159] By Constable Conlon’s own account, he was the quarterback of the police team that entered the home. In the result, the basis ofhis decision to enter the residence must draw the greatest judicial scrutiny. [160] When Constable Conlon first arrived on the scene of the shooting he spoke with Constable Hall.

Constable Hall told him that hehad been pepper sprayed by Mark Pauls and that Brandy Fahl was with Pauls. He also told Constable Conlon that he was concernedabout his police vehicle. [161] Constable Conlon then spoke with Corporal Jones. She was the senior RCMP officer on the scene with 16 years experience. She also reiterated that Constable Hall was concerned about his police vehicle and asked Constable Conlon to secure the vehicle.

Shealso made a comment that: “We should try to locate Brandy Fahl because she was with Pauls”. [162] Corporal Jones then told Constable Conlon that after securing the police vehicle he should return to take Constable Hall fromthe scene. There is no evidence that she suggested Constable Conlon make efforts to retrieve Brandy Fahl from inside the residence or,for that matter, to take steps to arrest her. Corporal Jones testified she expected Constable Conlon to return to 840 Thompson to getConstable Hall. [163] I note that by this time Corporal Jones had dealt with Constable Hall.

She was aware that the shooting incident involvedConstable Hall and Mark Pauls. She was aware that Mark Pauls had pepper sprayed Constable Hall and that Constable Hall used hisservice revolver to shoot Pauls. She seized Constable Hall’s firearm. [164] Constable Hall did not express to Constable Conlon any concern for other weapons or firearms, nor did she indicate that therewere any other public safety issues. [165] Constable Conlon did not return to the scene to assist Constable Hall in leaving the area.

Instead, he made the decision to go to890 Thompson in an effort to get Fahl to come outside to speak with him. [166] Constable Conlon was not successful in his requests to get Fahl to come outside. He then made the decision to forcibly enter theresidence on exigent grounds for the following reasons: - he had a hunch she was in the house and considered her to be a person of interest in the shooting incident, - he wondered about the involvement of Brandy Fahl in the shooting incident,

- he wanted to find out what she knew about the shooting incident, - he was concerned about public safety, - he was concerned about the possible destruction of evidence, - he was concerned about other weapons such as guns, knives, and pepper spray. [ 167 ] In cross-examination, Constable Conlon agreed that he did not have grounds to effect an arrest of Brandy Fahl.

He also agreed that if Fahl had come outside he would have tried to speak to her but that if she chose not to, he would not have had grounds to detain her. [ 168 ] It is my finding that there were no exigent circumstances, as those words have been interpreted by the authorities, justifying the warrantless entry into residence 820 Thompson by Constable Conlon and the other officers. [ 169 ] I note that there was no evidence that other weapons, firearms or evidence related to the pepper-spray shooting incident, might be inside the residence.

There was no evidence of any public safety concerns that could have arisen from occupants of the residence. There was no evidence that would suggest that any injured persons would be inside the residence. [ 170 ] With respect to Brandy Fahl, put on its strongest footing, it could be said that she was a person of interest as a possible witness to the shooting incident. She was not arrestable by police. Does

Section 25 of the Criminal Code apply to the facts of this case? [ 171 ] Section 25(1) of the Criminal Code reads: 25.

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, Is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. [ 172 ] Thus, s. 25 provides a defence for the use of force as follows: 1. First, where the person is doing something that is required or authorized by law for the administration or enforcement of the law, 2. Second, where he or she acts on reasonable grounds, 3.

Third, where he or she uses no more force than was necessary. [ 173 ] Was Constable Conlon doing something that was required or authorized by law for the administration or enforcement of the law? I have already concluded that exigent circumstances did not exist in this case. Crystal Young was not committing any criminal offence or breaching the peace when Constable Conlon approached her. On the whole of the evidence I find that Constable Conlon was not engaged in the execution of his duties, whether statutory or at common law, when he entered the residence and applied force to Crystal Young.

However, even if I am in error with respect to this aspect of my decision, it is my view that the same principles regarding force apply to s. 25 and s. 34(1) of the Criminal Code . In essence, both sections require that the accused use no more force than is necessary. [ 174 ] I turn to the question of reasonable force and the application of both s. 25 and s. 35(1) of the Criminal Code that I will review under the same heading . THE APPLICATION OF THE DEFENCE OF SELF DEFENCE [ 175 ] The accused in this case relies on the defence of self defence.

In essence, the accused argues that he was attacked by Crystal Young who was using force against him, namely, the dog Dakota. He further submits that he was entitled to defend himself from grievous bodily harm by striking the dog and Ms. Young. He also argues that the force he used in punching Ms.

Young was reasonable and in accord with the training he received as an RCMP officer. [ 176 ] The sections of the Criminal Code engaged in this trial are ss. 25(1) , and 34(1) . [ 177 ] For a police officer to rely on a defence under s. 25 , he must have applied force during the lawful execution of his duties and used no more force than necessary to execute those duties. I have already dealt with the issue of Constable Conlon’s duties. [ 178 ] With respect to the element of “no more force than necessary” the factors are: 1.

The officer must hold a subjective belief that the force used was necessary and not excessive;

2. That belief must be found to be objectively reasonable; and 3. There must be reasonable grounds for the subjective belief that the force used was necessary and not excessive. [179] In determining whether the amount of force used by the police officer was necessary, the court must consider the circumstancesas they existed at the time the force was used and that what is important is the belief of the officer in light of all the circumstances. Further, that the officer could not be expected to measure the force used with exactitude. R. v. Bottrell (1981) 60 C.C.C. (2d)(B.C.C.A.). [180] Section 34(1) of the Criminal Code provides: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force heuses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. [181] The elements of s.34(1) are described in R. v. Grandin, 2001 BCCA 340 , 2001 B.C.C.A. 340, 154 C.C.C. (3d) 408 atpara. 35: 1. The accused was unlawfully assaulted by the victim; 2. The accused did not provoke the assault; 3. The force used by the accused was not intended to cause death or grievous bodily harm; and 4.

The force used by the accused was no more than necessary to enable him to defend himself. [182] The question of the meaning of proportionate response or “no more force than is necessary” is dealt with by Martin J.A. in R. v.Baxter (1975), (ON CA), 27 C.C.C. (2d) 96 (Ont.

C.A.) where he said at p. 111: …Moreover, in deciding whether the force used by the accused was more than was necessary, in self-defence under both s.34(1) and (2)the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to anicety, the exact measure of necessary defensive action. [183] I will now turn to my findings of fact with respect to the incident in residence 820 Thompson between Crystal Young andConstable Conlon. [184] When Crystal Young left her bedroom she had her dog Dakota on a leash.

I accept her testimony that she did not intentionallyhave the dog bite anyone. She agreed the dog was acting aggressively but she was trying to control him. I do not accept the defencecontention that Crystal Young was using the dog as a weapon. On the evidence of all the witnesses in the residence I find that CrystalYoung did not assault Constable Conlon. [185] There is no evidence from any of the witnesses that Crystal Young was acting in an aggressive manner when she was confrontedby Constable Conlon.

She was asked a number of times by Constable Conlon to get on the ground but she told him that she could not dothat because of the dog. She was not making any moves toward Constable Conlon. She was not making any verbal threats. She wasstanding in the living room, holding the dog leash. At no time did she release her hold on the dog leash. [186] She could not specifically recall Constable Conlon hitting the dog but said it was possible. She was punched in the face withone blow from Constable Conlon’s right hand. He was wearing gloves at the time.

She described the punch as a hard blow and I accepther description as accurate. [187] Constable Conlon was clearly focused on Crystal Young. When Constable Conlon got to the top of the stairs the occupants ofthe home were laying on the floor. Crystal Young was the only person standing except for the other police officers. Constable Conlontold Crystal 7 or 8 times to get on the ground. She said she could not because of the dog.

During the time it took to tell Crystal to get onthe ground, Constable Conlon would have had time to assess the situation. [188] Constable Conlon was aware of the dog and the dog’s behaviour. He felt, but did not see, the dog bite his right arm. [189] Constable Conlon hit the dog. He described the action of raising his right hand to the left side of his body and swinging in adownward motion, hitting the dog in the head with the back of his hand. Constable Conlon also demonstrated this motion to the Courtwhile testifying. He heard the dog yelp and saw the dog go down.

He hit the dog with a forceful blow. [190] Constable Conlon said that after hitting the dog he brought his right arm up in an upward motion and punched Crystal in the facewith his right hand. Again, he displayed this action during his testimony in court. In examination-in-chief he described his right armmovement as one motion. In cross-examination he admitted that the motion of his right hand could be described as one motion and twoactions.

In court, Constable Conlon clearly displayed a downward and back-hand action with his right hand used in striking the dog andthen an upright closed-fist action in punching Crystal Young. [191] In any event, it is clear from the evidence, that the punch to Crystal Young’s face was not accidental. It was a deliberate act onConstable Conlon’s part. I am satisfied from the evidence that there were two actions, namely, hitting the dog and then hitting CrystalYoung. [192] When the dog was hit he went down. The threat of any further harm or danger from the dog was gone.

There was no evidenceof any injury to Constable Conlon as a result of the dog bite but I find that his action of striking the dog is both subjectively andobjectively reasonable.

[ 193 ] Did Crystal Young pose any further threat once the dog was subdued? [ 194 ] The approach is first to examine the subjective perceptions of Constable Conlon and then to examine whether those perceptions were objectively reasonable in the circumstances. [ 195 ] I accept that Constable Conlon had an honest belief that he was entitled to enter the residence, even though his belief was mistaken. Once in the residence he faced Crystal Young who was holding her dog on a leash.

She said she could not get on the ground although repeatedly requested to do so by Constable Conlon. [ 196 ] Constable Conlon testified in cross-examination that Crystal Young did not pose a physical threat to him. He also said he had no plan to punch her in the head.

When asked in examination-in-chief and cross-examination to explain why he punched Crystal Young, Constable Conlon offered the following explanations: - I hit her because of my training - It was a reactionary thing - I felt like I was in a vulnerable spot, I was close to her, I could not see what was in her hands, possibly a knife - Crystal Young did not want to cooperate, it’s like we can’t stand here forever - It was a reaction from my training, I was taught to deflect the weapon (the dog) and strike the source (Crystal Young) The explanations offered by Constable Conlon are somewhat contradictory and difficult to reconcile. [ 197 ] There is clear evidence that the dog was acting aggressively.

Constable Conlon was certainly justified in striking the dog after the dog bit him. The dog was immediately subdued on being hit. [ 198 ] There is no evidence from Constable Conlon that he had an honest and reasonable belief that Crystal Young had assaulted him or was a threat to assault him.

Even if he did have such a belief, the force used was not proportionate to the harm or potential harm which he was facing. [ 199 ] It is my finding that once the dog was subdued there was no justification, on a subjective or an objective basis, for the further application of force to Crystal Young. [ 200 ] Firstly, I am not satisfied on the evidence that Crystal Young assaulted Constable Conlon. In my view, the dog and Crystal Young cannot be treated as one entity. There is no evidence to support a conclusion that Crystal Young was using the dog as a weapon.

She did nothing verbally or physically to indicate she was using the dog as a weapon. [ 201 ] Furthermore, when considering the subjective basis of Constable Conlon’s decision to strike Crystal Young, I note there is no suggestion in the evidence that Constable Conlon believed Crystal had a violent history or that she had any history of connection to weapons. At no time did she utter any threats or make any aggressive moves toward Constable Conlon. [ 202 ] Prior to entering the house, Constable Conlon was aware that Crystal Young was inside the residence.

He knew there was a dog in the residence when he entered the home. Crystal Young and the dog were in plain view. [ 203 ] I turn to the objective basis of whether a reasonable person in the circumstances would consider the force used excessive or more than necessary. [ 204 ] Constable Conlon is 6’3’’ tall and weighs 210 lbs. Crystal Young was, at the time, 5’7” and weighed 140 lbs. There was a significant size difference between Constable Conlon and Crystal Young. [ 205 ] Constable Conlon never asked Crystal Young to remove the dog to another location such as the bathroom.

He did not ask her to show her hands to him. [ 206 ] Although there was some chaos in the living room and people were yelling, I find that Constable Conlon had the opportunity to assess the situation with Crystal Young. He had time to ask her 7 or 8 times to get on the ground. He had time to formulate a plan to apply a “strong bar” move to put her to the ground. He had time to move his revolver from his right hand to his left hand. He was aware that she was holding a leash in her hands. [ 207 ] Constable Conlon testified that he relied on his training in using the “deflect and strike” move.

He used the example of someone approaching with a rifle, deflecting the rifle to the side, and striking the source, namely the person using the rifle. Of course, police encounter innumerable fact situations in the course of their daily duties. Every fact situation confronting a police officer requires the exercise of judgment, training and common sense. [ 208 ] Simply saying that one is relying on his or her training cannot be permitted to serve as a cloak for unlawful aggression. The law allows for the use of force but it also requires the force to be reasonably necessary. The test is not black and white.

Where a reasonable doubt arises on the evidence, the doubt must be resolved in favour of the accused. In the case of self defence, the Crown is required to prove beyond reasonable doubt that force used was more than necessary in all the circumstances. [ 209 ] The potential harm faced by Constable Conlon was a dog bite. Punching Crystal Young in the face was clearly not proportionate to the potential harm. [ 210 ] Constable Conlon could have stopped his arm motion after hitting the dog.

I find that Constable Conlon used more force than was necessary when he made the separate action of punching Crystal Young in the face.

[ 211 ] I am also mindful of the test that a person defending himself, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action. I am also mindful that the Court is not entitled to simply second guess the actions of the police officer. [ 212 ] I am mindful of the testimony of the expert witness, John McKay, at this trial. However, I am unable to conclude that his opinion is the final word on the issue of whether the force used by Constable Conlon was objectively reasonable. Mr.

McKay’s evidence must be considered within the context of the whole of the evidence in this case. [ 213 ] In this case, on the whole of the evidence before me, I find that the punch to Crystal Young’s face was completely unnecessary. I find that the Crown has established beyond any reasonable doubt that the defence of self defence does not apply on the facts of this case.

Furthermore, I also find that even if s. 25(1) is applicable, the Crown has established beyond any reasonable doubt that the force used by Constable Conlon was excessive. [ 214 ] The Crown has conceded that the evidence in this case does not establish the element of bodily harm. I agree that the evidence in this case does not establish that Crystal Young suffered bodily harm. [ 215 ] In the result, I find the accused Constable Conlon, guilty of the offence of assault. ___________________________________ The Honourable Judge E.F. de Walle