R. v. Phoummasak Date:, 2013 BCPC 391

Citation: R. v. Phoummasak Date: 20131212 2013 BCPC 0391 File No: 77944-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHOULA PHOUMMASAK RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R.B. CARYER Counsel for the Crown: S. Price Counsel for the Accused: K. Beatch Place of Hearing: Abbotsford , B.C.

Dates of Hearing: October 23, 25, 2013 Date of Judgment: December 12, 2013 [ 1 ] THE COURT : The accused is charged with two counts, which is basically possession of drugs for the purposes of trafficking. The offence took place on the 21st of November, 2012. In essence, the trial thus far has been run in a voir dire.

The accused has raised the issue of whether the deployment of the police dog to the extent that the accused was bitten by the police dog while hiding from the police is a use of excessive force and brings into play the Charter of Rights and Freedoms such that the appropriate remedy would be either a judicial stay of the proceedings, or at the very least, an exclusion of the evidence that flowed from the use of the police dog, which in this case, would be the finding of the accused in the bush and his, therefore, subsequent identification by the police as the person found in the bush. [ 2 ] I have heard a very large amount of evidence respecting the use of the particular police dog in this case, Diego, and the training of Cpl.

Scott, his handler. The accused has called evidence. He has testified himself and has called evidence from Mr. Douglas Deacon, who is a retired sergeant from the New Westminster Police Department, who is also an expert, if you will, in the type of dog training used in Germany called Schutzhund. That training is used by some police forces in the world but initially began as a sport for the training of dogs and I will get into the evidence respecting that. That is the issue that is before the court today. [ 3 ] As I say, the evidence was called in a voir dire and just generally the evidence is, is that Mr.

Phoummasak, the accused, was targeted by the Abbotsford Police Department through information that they had received that he was dealing drugs in an area. As a result of that, this particular area was targeted by the undercover officers. It is a bush area. I do not know if it is a park per se but it is bordered on one side by railway tracks and across from the railway tracks there is a chain link fence which blocks off an industrial complex.

On the other side is this swampy, low-lying level of bush which included trees, blackberry bushes and brush, quite dense and, although there may have been a few trails through it, it is basically virgin land, if you will, in the sense that it is just wild. [ 4 ] I will go through the evidence to some degree because I think it is important to set out all of the facts that I am dealing with here for subsequent review, should that be the case. [ 5 ] As Mr. Beatch pointed out to the court at the beginning, the voir dire had to do with the nature of the arrest of Mr. Phoummasak.

For the purposes of the voir dire, there is no issue that Mr. Phoummasak was the individual who was being chased by the police. [ 6 ] Cst. Doucette was the first officer called by the Crown. On the 21st of November, 2012, there was a briefing. Mr. Phoummasak was targeted by the police. There was surveillance to be done in this area of the park and the brush. Two plainclothes officers were dispatched to attempt to find the accused and, if possible, to engage in a drug transaction. Cst.

Doucette headed out sometime around three o'clock in the afternoon and the timeframe is relevant to this case because, as the time progressed, it became darker and darker in this area, being November the 21st. The accused was observed on the railway tracks by Cst. Doucette. Doucette was hiding sort of in the bush area. He observed the accused in black clothes. He was, from Doucette's perspective, some 50 feet perhaps away or even more, wearing black clothing and carrying a black-and-white backpack. That backpack has been entered as an exhibit in the voir dire.

He observed that there were two unknown people, a male and a female, on the train tracks and it would appear that they were involved or seeking to find drugs and looking for Mr. Phoummasak. [ 7 ] The undercover operators, the police officers who were acting undercover, engaged with these people. Cst. Doucette observed this and observed that there appeared to be some interactions between not only the undercover operators and these unknown people but it would appear with the accused and the unknown people as well. At some point, Cst. Doucette was advised by radio that Mr.

Phoummasak was arrestable as a result of what the undercover operators and other officers had seen. Doucette was advised that Mr. Phoummasak was running toward the industrial area and the Superior Propane tank, which is a very, very large tank which the police used in the course of this investigation as a reference point. [ 8 ] Doucette headed up to an area on the railway tracks where he saw the accused come out of a clearing. At that point Cst. Doucette yelled to Mr. Phoummasak, "Abbotsford Police Department. You're under arrest. Get down on the ground." Mr. Phoummasak froze. He had his hand on the backpack.

He stepped back into the bush. Cst. Doucette's opinion was that he thought that Mr. Phoummasak was going to drop the backpack, as he had his hand on the shoulder strap in a fashion that would suggest he was about to dump that off. [ 9 ] Cst. Doucette, a few seconds later, saw Cst. Burrows, another member of the Abbotsford Police Department, come to the clearing. He told Cst. Burrows that he should be very careful as Mr. Phoummasak was very close. Doucette had not heard at that point any further noise coming from the bush area and so he directed the police to this clearing and further into the brush.

He described it as thick dense bush area higher than the ceiling of the courtroom, which, of course, this is Abbotsford which means it is not all that high but it is at least ten feet. He testified that the police had police jackets on. The police jackets have sort of a fluorescent lettering that says "police". At around five o'clock, Doucette was down in the clearing area and located the black-and-white backpack that he said he had seen over the back of Mr. Phoummasak. He also saw a red light blinking and picked up a cell phone; it was functioning.

In fact, that cell phone was determined to having been used at some point at any rate in drug transactions and I will get to that in a moment. [ 10 ] Cst. Doucette said that the police there, Sgt. Jack, who was perhaps the officer in charge, had a discussion about calling the Canine Unit, which would be Diego and Cpl. Scott. Cst. Doucette testified that he gave two loud, clear notices to the bush area that the dog was going to be called. He said, "Come out and you won't be harmed." From that point until when the Dog Unit arrived, approximately 20 minutes elapsed. This is now at 5:30 p.m., November the 21st.

The evidence is it was getting dark quickly at that time. I do not think I need evidence per se to say that we all know that in this part of the world in and around 5:30 toward the end of November, dusk is settling in very quickly and it gets quite dark. [ 11 ] Cst. Doucette testified that he was up on the tracks, which is, again, some distance away from where the clearing in the bush

was but he could hear the police in the bush. He could not see them but he could hear them. There was no barking and it took about ten to 15 minutes before Mr. Phoummasak was apprehended by the dog, which is, of course, the issue that I am dealing with today. He said this was the same person he had seen drop the backpack and back into the bush. [ 12 ] He testified that, with respect to the phone that he saw in the bush with the red light blinking, there were two calls that came in. He answered them.

One was from somebody by the name of "Russian Dixie", a person who he knew as a drug user, and again there was a call that related to the transaction respecting some drugs. This first call was later on in the evening when the phone calls came in. There was a second call about getting more drugs from somebody else. The phone number was a number that was known to the Abbotsford Police Department that had been in use for quite a period of time, at least a year if not longer. It had the numbers 877, the triple 7 number that was known to the police.

He had another officer call that phone, identified himself and they recognized that that was the same phone, that was the same number and it matched it all together. [ 13 ] Cst. Doucette, in cross-examination, outlined the clothing that was worn by Mr. Phoummasak. He said that Mr. Phoummasak froze and looked at him, which suggests that at that point Mr. Phoummasak knew there was a police officer there and reacted in a way to avoid being arrested.

He said he stepped back and it appeared he was going to drop the bag, which it is clear that he did. [ 14 ] He testified that it was pretty dark by 5:30 when the dog arrived or became involved in this search. He could not see what actions the dog was doing. He said when he next saw the dog, this is after Mr. Phoummasak had been arrested, he went down to help with Mr. Phoummasak. I will say this at the outset. The issue here is whether or not the deployment of the dog into the bush and biting Mr. Phoummasak is an excessive use of force or perhaps causing grievous bodily harm, which I will get to.

However, the conduct of the police after Mr. Phoummasak was arrested and had been bitten cannot be criticized. The officers went down into the clearing or went down into the area below the tracks, assisted Mr. Phoummasak up to the track area. The Emergency Health Services personnel were present. He was examined and treated so that the way they dealt with him after that, in my respectful view, was not something that was cavalier, was not something that was disrespectful of Mr. Phoummasak at all. As Doucette testified, when he did go down to assist to get Mr.

Phoummasak up the incline to the tracks, the dog was off to the side. He was leashed; he was not biting him. That is significant in the sense that many of the cases cited by Mr. Beatch with respect to police misconduct in relation to arrests deals, firstly, with the fact that police misconduct is often after the person has been arrested, as opposed to here where it is clear that the police conduct post-arrest was fine. They were respectful of Mr. Phoummasak and assisted him. [ 15 ] The pictures of Mr. Phoummasak's injuries have been entered as exhibits in this hearing.

There is a single puncture wound and some scratches. I accept Mr. Phoummasak's evidence that this hurt, that it caused him pain, that he limped for a couple of weeks and that he has a scar from the dog bite. [ 16 ] Cpl. Scott testified he has been a police officer for 16 years. He has been a dog handler for seven. He has had two dogs and his current dog is Diego. He testified that Diego is being retired or perhaps has already been retired and that Cpl. Scott is in the process of training another dog.

He said he is the only person who works with Diego, that he has trained at Innisfail, Alberta, which is the RCMP training centre for dogs which I am assuming is centralized to Canada because I do not know of any other area where dogs are trained with the RCMP, and this extends to other police forces. He said that Diego has been trained for two general purposes; dual purposes that is, general and narcotics searches. He is trained to search and track and he is also trained to sniff out drugs. [ 17 ] Cpl. Scott described tracking as using a dog's capabilities and nose to take Cpl.

Scott from one location to an end point, following footprint-to-footprint basically. This was confirmed by Mr. Deacon, who testified that tracking even in Schutzhund training program is basically going from footprint-to-footprint. Mr. Deacon explained how often times there are bacteria smells that are left from a person stepping on vegetation that then breaks and releases some sort of a scent and there is also the person's scent that can be left behind so that that is a part of the police training. [ 18 ] Cpl. Scott testified that that really was not what happened here.

The first thing that he did was he engaged Diego in trying to find some sort of a scent. He received the call while he was in Chilliwack, which is a 20 to 25-minute drive away. He arrived on-scene. He was briefed by the members. He was directed to a specific part of the wooded area. As he testified, this is a wooded area surrounded, if you will, by businesses and stuff but it is low-lying, swampy terrain. He said it looked to him as if it was somewhere around 400-by-200 metres, which is a fairly significant area, if you are calling it a wooded, dense brush.

He said that when Diego was first deployed, he was in a harness; he was on a 25-foot line. He testified that this is a very manageable arrangement even in the bush. The line, I gather, does not get overly tangled in brush. He said it was a thickly wooded area. He said it was in a swampy area and then up a hill. [ 19 ] He commanded Diego to search for a track. Diego did indicate one so he started in the search mode and then he began to track. He believed that this was Mr. Phoummasak's track.

The reason for that was that he was told that other police officers had not been in that area as of yet and so he was what he believed on the track to the quarry, Mr. Phoummasak. He said that Diego began to pursue the track. He had his nose to the ground and he was pulling on the harness which to him is a sign that he has his dog on track; the dog is moving and, in particular, following a track. He said he went through the thick swampy area and he had Diego at that point on a 20-foot length. He said he was accompanied by a Det. Gamboa. There is a reason for that I understand from what was told to me.

The police officers engaged in these types of pursuits have a runner with them, which is what Gamboa was called. That runner is there for protection of the dog handler. The dog handler is focused on the dog, reading the signs, if he can, and maintaining a contact with the dog. As a result of that, according to what I was told by these officers, the dog handler is inherently at risk and vulnerable to attack by the quarry. So there is a second officer there. That, in my respectful view, is of some significance as supported by Sgt.

Borgstead's evidence that when an individual is hiding and has gone into an area that you cannot see in and do not know where he is, this is one of the highest-risk type of situations for a police officer, a dog handler. [ 20 ] As a result of Diego following a track, he found a black toque and that was seized. He then continued to track after he found that. He then lost the track. It would appear that the area had been contaminated by the other police officers who had gone in the area, which is what was told to Cpl. Scott.

At that point, Diego's head came up, he stopped pulling on the harness, he circled to try and find the track. That is the way it goes with that dog.

[ 21 ] The dog was indicating to Cpl. Scott that he was no longer able to track and then he was put into a search mode to try and find either a continuation of that track or a different track. He was removed from his harness. The line remained on him and he was given the command to search. This was done into the wind which is, of course, the way it should be. If you are upwind, the scent is being blown away. It was very shortly after that that Diego indicated to Cpl. Scott that there was a presence of a human odour. In essence, it is the nose feathering into the wind.

In other words, the dog lifts its nose and is giving a sign to the handler that he smelled something and was about to go onto a track. [ 22 ] At that point, of course, Diego was under the control of Cpl. Scott. The line remained on him and Diego began to move. It is trite to say but it becomes a part of the general process here that at any time Mr. Phoummasak could have given himself up to the police. He testified he did not want to get caught and he was not prepared to give himself up to the police. However, the dog was under control as the search was going on, as the tracking was going on, and Mr.

Phoummasak chose to remain in hiding. Which, from the police perspective, is a choice to continue to place the police officers, including Cpl. Scott, at some unknown level of risk. [ 23 ] Cpl. Scott said that Diego worked the scent uphill towards the railway tracks and it was close to the fence line that separated Superior Propane. There were no lights. He did not have a flashlight. It was getting dark. It was very dense and thick blackberry bushes. There were some trees, there was foliage, there was very little illumination other than moonlight and it was heavily treed, it was very dense. [ 24 ] Cpl.

Scott testified that he thought that the source of the scent could be on the other side of the fence. The fence itself obviously is not going to interfere with the scent being picked up by the dog. It is a chain link fence; it is not solid. It is not an unreasonable thought of the officer to have, that a quarry would want to get over the fence and get away. Cpl. Scott did not know where Mr. Phoummasak was. He said that Diego reached a thicket of blackberries and we know this is blackberry thicket. It is dense, blackberries.

I do not think I need to take anything other than judicial notice that they have a lot of thorns on them and it would be a difficult place for the police to go into themselves. Cpl. Scott testified that he thought Diego would get up to the fence line. That they would probably be crossing the fence line and having to continue on with the tracking on the other side. However, at that point, Diego went under the blackberries. This is an area that the officer could not get to. The officer testified that he would have to have been down on his hands and knees to even remotely have had an opportunity to see Mr.

Phoummasak hiding in the bushes. Diego was about 20 feet away, which is not very far. I heard testimony from Sgt. Borgstead that 20 feet is a critical zone. Less than 20 feet is, pursuant to police training, a critical zone for police confrontation with suspects. The bottom line being that a police officer does not have sufficient time to react to an aggressive attack if an individual is within 20 feet of that officer. There is not time. The officer is extraordinarily vulnerable within that distance. Diego was 20 feet away, on the line and ducked under the blackberry bushes out of Cpl.

Scott's view completely. [ 25 ] He heard Mr. Phoummasak yell out. Diego was not barking. Cpl. Scott pulled Diego back from underneath the blackberries, said there was resistance because Mr. Phoummasak was also being pulled by Diego. Diego did bite him on the upper thigh. Diego is trained to do that. This is part of the issue in this voir dire. [ 26 ] The accused, Mr. Phoummasak, was completely hidden and, therefore, posed a significant risk to the police regardless of whether they had any intelligence respecting Mr. Phoummasak's history or his level of violence or his access to weaponry.

That is not something that is, in my respectful view, required to be called as evidence. It is common sense that when the police are dealing with an unknown or somebody is hiding from the police, the police are at risk. [ 27 ] With respect to a situation with Mr. Phoummasak, even if the court were to assume that he did not have a firearm, the officers on the ground at the time would not know that he did not have any type of weapon. He could have had a knife, he could have had a club, he could have had a gun; they do not know. That is the evidence really of Sgt. Borgstead.

This is why these types of situations are a very high level of risk for the officers involved. They just do not know and that is the reason why police dogs are used. [ 28 ] When Cpl. Scott was shown the photographs of Mr. Phoummasak's injuries, he acknowledged that it appears that that was one bite. He testified that Diego has lost his two lower canine teeth so the dog was less likely to cause serious injury because the dog was, not toothless but, less toothed, if that is some sort of proper English, than another dog might be. [ 29 ] The injuries to Mr.

Phoummasak, as outlined in the photographs, show a single puncture wound. It appears that there may be other wounds that did not particularly puncture the skin. There are scratch marks that may have been caused by either teeth or claws or nails of the dog and possibly, as far as I know, some of the blackberry bushes. [ 30 ] Cpl. Scott testified that he was not calling out to the suspect or the quarry that the dog was here. That apparently is something that he does not do. He said other officers were yelling from above the tracks as he arrived and began to prepare for tracking.

The issue at that point being the police were attempting to notify Mr. Phoummasak that the dog either could be called, would be called or had been called and that they were giving him notice of that. Mr. Phoummasak testified that he never heard anybody say anything but he believed that the police were coming with the dog. Mr. Beatch has made the point that really that is irrelevant, whether he was given notice or not, because this is an excessive use of force and, in fact, is an application of force that is likely to cause grievous bodily harm. I gather what Mr.

Beatch is basically saying is that either it was intended to cause grievous bodily harm or it was likely to cause grievous bodily harm or death. That is the wording of the Code. [ 31 ] Cpl. Scott testified that Diego is trained to bite. There are three parameters of that that he explained. Firstly, the handler commands the dog to bite. That is not the case in this case. Secondly, if the dog feels the handler is in jeopardy, the dog will bite.

Thirdly, if the dog feels his own safety is at risk he will bite. [ 32 ] The principle of training at Innisfail and with most of the police forces, if not almost all of them in Canada, is that the dogs are trained to bite and hold. If they are going to bite, they are going to hold. That is their training. Diego was not commanded to bite. Cpl. Scott did not know Mr. Phoummasak was present in the thicket. He thought that he had probably crossed the fence. He did not see a signal from Diego before Diego went into the thicket. He said Diego is not a barker, he is not a whiner, he is not going to make noise.

He said if he finds a person who is non-threatening, usually he just sits, especially if they are children or hikers or people who are not engaged in criminal activity.

[ 33 ] Cpl. Scott is capable of commanding Diego to release a person. He says typically Diego goes for movement. If somebody tries to kick the dog, the dog will go for the leg or foot. If the person attempts to strike the dog with his arms or hands, the dog will go for the arm. [ 34 ] Part of the search after Mr. Phoummasak was arrested involved Diego going back into the bush and locating some items, including money and gloves, and those were retrieved. I bring that up at this point only because Mr. Beatch's application, at the very least, is for an exclusion of all of that evidence. [ 35 ] Cpl.

Scott testified that basically he arrived at the scene at 5:30 and Mr. Phoummasak was in custody at 5:46. This was 16 minutes of searching in the bush, approximately. Mr. Phoummasak had been in the bush since approximately five o'clock, which puts him in there about 45 minutes. Mr. Phoummasak had that opportunity, that amount of time, should he have chosen to, to have presented himself to the police. He chose not to. Cpl. Scott testified that he could not have seen Mr.

Phoummasak in that location unless he was down on his hands and knees which is, of course, not reasonable when you are in the middle of searching for somebody. [ 36 ] He said that Mr. Phoummasak was about 20 metres away from the other officers who were standing around now in containment trying to see whether or not the dog was going to find Mr. Phoummasak. He said there was no way anybody could have seen Mr. Phoummasak. All during this time period, Mr. Phoummasak was within very short distance of the police and could have given himself up but chose not to. [ 37 ] In cross-examination, Cpl.

Scott testified that Diego has been involved in hundreds of cases and that there is a training process that they have go to through, that he is re-certified every year. He said at some point they have had an issue respecting track; never an issue with respect to contact. He said sometimes he has to pull the dog off; he does not release as quickly as maybe he should. He said if a person's struggling, there are times when Diego will not release the person but he said if the person is compliant, Diego will release the person.

He said he has never had a problem with Diego biting on his own; in other words, simply, as some of the cases that have been presented to the court have seemed to suggest, that there are times when dogs will just bite when an individual is already detained and in custody. This has created some problems, obviously, in the case authority. It has never been a problem with Diego. He has not had problems with him obeying a pursuit command or the cease pursuit command. He acknowledged that they do not practice the bark-and- hold, which I will get into, that Mr.

Deacon so thoroughly testified about. [ 38 ] He said that what he does is he tries to meet the yearly standards. He concentrates on meeting the yearly standards and has done so for the seven years that he has been with Diego. He said Diego will listen to his commands. He said the dog will wait for his commands not matter what is going on, whether there is shooting, whether there is excitement. The dog is trained and will always wait for his commands. It is, again, important to emphasize that in this particular case there was no command to bite. Diego was on a tracking line the whole time.

He said that he can control him through the line, if he needs to, and he can. In this case, when Mr. Phoummasak was found, Cpl. Scott did not know that there had to be some element of control on the dog at the end of the line. He did not know what was under the bush. Diego had already found the toque which, of course, is no threat and, in Cpl.

Scott's mind, he was of the view that this person probably had gone over the fence because he had not been able to find him in the 16 minutes that he was tracking and searching. [ 39 ] He said that Diego was trained, obviously, if somebody is actively fleeing, to bite and hold. The dog is trained, generally speaking, to go for arms and legs. That is what they are trained to do. He said if a person is just standing still and is compliant, Diego just sits there, which, in my respectful view, is something akin to the bark-and-hold, if you will, that Mr. Deacon testified to.

There is another type of training in Schutzhund, which is not just a bark-and-hold but staying very close to the individual. This is consistent with what Diego does. It is active attempts to flee or to strike out at the dog that generally causes the dog to bite. [ 40 ] Mr. Phoummasak has testified that when he was lying on the ground, when he knew that they were coming, he had his hands over his head and lying flat on the ground because he did not want them to think that he was in any way a threat or a danger, that he heard panting and the dog just bit him. [ 41 ] In this particular case, the dog and Mr.

Phoummasak were out of sight of anybody else in the area, including the dog handler and the runner, Det. Gamboa. [ 42 ] Cpl. Scott testified that there is not specific training about what the dog should do if a person is lying down on the ground. There is a standard of training to locate somebody who may be lying down but there is no specific training as to what the dog is to do. As well as in cross-examination, he acknowledged that there is not a standard of training that takes the dog to the point where the quarry's hands are in pockets or not in pockets.

That is just something that may be considered to be a bit too subtle for an animal. [ 43 ] Cpl. Scott testified that there are certain signs that Diego gives if he is getting closer to what he thinks might be the quarry. He will lift his head up; he might start to go a little bit faster. There are some signs. He testified that he usually can tell if the quarry is close because Diego does get more excited. He said that at the time that Diego found Mr. Phoummasak, it was more of a search and less of a track. It is as if he stumbled upon Mr. Phoummasak.

He said sometimes he cannot tell if they are getting close, whether it is the dog not signing to him or him not being able to pick up the subtleties of some of Diego's actions. In this particular case, I say it again; Diego had already found a toque which, of course, is not a threat. Cpl. Scott believed that the person may well have gone over the fence and Diego had not given much in the way of a sign, although Mr. Deacon said there were some signs, there may well have been some signs. The proximity of the quarry is not something that in that particular physical scenario Cpl. Scott would be able to determine.

It was, again, dense brush, it was dark and there was no sign, physical sign. He said he did not know that Mr. Phoummasak was close by. He did not know that. [ 44 ] He felt that in terms of Diego's reaction to finding the scent of Mr. Phoummasak and finding Mr. Phoummasak took place somewhere within 45 to 60 seconds. He said it was a situation that was quite dynamic, that Cpl. Scott had a feeling that Diego was closing in but he did not know or think that Mr. Phoummasak was that close because he thought he had gone over the fence. He did not know. He knew that Diego was closing in on something.

He cannot tell whether it is 200 metres away or 20 feet and in this case it was 20 feet. It does not necessarily mean that the quarry is right beside him. Diego, to Cpl. Scott, is simply pursuing the scent. It depends

on the terrain. It depends on the weather. It depends on the wind. He said Diego was not trained to let him know that the quarry is near. Again, I do not even know how the dog would know the quarry is near other than the scent gets stronger but how close that is, is again, it seems clear to me, and was said, is dependent on the weather and the terrain and everything else. [ 45 ] Cpl.

Scott felt that that is a training standard that would be impossible to reach because the dynamics and the different factors all taken into account do not necessarily give the police and the dog an opportunity to know exactly where the quarry is. It simply depends on conditions. What Diego basically indicated to Cpl. Scott was that he had an odour, that the quarry was somewhere nearby. He did not know how close; he had no idea. In that situation, Cpl. Scott did not unleash Diego and let him go. He still had him on the line. He did not know if the scent was coming from clothing.

He did not know anything about that. He said Diego would have reacted the same way to a jacket being left on the ground. The pursuit, the movements of the dog would be identical from jacket to human being. [ 46 ] Mr. Deacon testified that, generally speaking, human scent is going to be stronger coming directly from the human than it would from an item of clothing that had been on a human. I suppose, to some degree, that is accurate, although it all depends perhaps on whether a person has cologne, whether they are perspiring a great deal, what their general body odour is.

All of these things are factors that undoubtedly are taken into account when a dog is chasing somebody and whether or not the scent is strong. [ 47 ] Cpl. Scott testified that he had been in that general area about 30 or 40 metres away from Mr. Phoummasak but had been upwind. In that situation, what that means, according to Cpl. Scott, was that they had been close. He thought they had covered off that area. He did not believe that Mr. Phoummasak was right there. As far as he was concerned, Scott legitimately thought that Mr. Phoummasak, the quarry, was not nearby, as he had been in the area, although upwind.

He is, of course, supposed to keep track of where the wind is but he has gone through the whole area and at some point you are going to be upwind and downwind if you are going back and forth, crisscrossing through the area. The bottom line, again, of that being that Cpl. Scott, in his dealing with this particular quarry, again, did not know that Mr. Phoummasak was nearby. [ 48 ] He testified, though, that Diego, if he is going to bite and attack somebody, is going to go to the part of the body that is attacking him. Mr. Beatch and Mr.

Deacon have made the point that if you are kicking at somebody, you are usually kicking with your foot, as opposed to the upper thigh. What no one knows and cannot know is what part of Mr. Phoummasak's body was the first part the dog came upon. Mr. Phoummasak said he was not moving and was simply bitten. I do not know where the dog was. I do not know what happened in the bush. What the evidence is from Cpl. Scott who trains the dog is that the dog will go for the part that is moving and moving, generally speaking, in a fashion that the dog feels either threatened or he must take hold to prevent flight.

A dog does not appreciate the subtleties of lying in the thicket of a bush. All he knows is this is the quarry and the quarry is there for him to get. He said they never use the term "get him". He does not use those words. He said he did not use any words. [ 49 ] He thought that it was not likely that Mr. Phoummasak was simply lying there and the dog bit him. It was his view that the training of Diego was such that he would simply stop and that it would have to be some movement that would cause him to bite. Even Mr.

Deacon acknowledged that in the Schutzhund training, this type of training requires the quarry in the sport to basically be standing stock still. There is very little movement allowed by the dogs before they also will bite the quarry. As Mr. Deacon testified, each dog, although trained the same way, has their own individual tolerance for types of movement or small amounts of movement. This has to be, by nature, imprecise. These are dogs; these are not human beings. [ 50 ] Cpl. Scott's testimony, which I thought was a reasonable answer to Mr. Beatch's question when he said, "Is it possible that Mr.

Phoummasak was just lying there and the dog bit him?" He said, "Yes, it's possible but it's not likely." He said, "The only command is a search command. It's the same command for a child, for clothing, for anything. It's the same command." [ 51 ] As the case unfolded in the voir dire, there was the evidence of Cpl. Scott in chief and cross-examination. Then Mr. Deacon, because I think it had to do with scheduling, was called in the middle of the Crown's case on the voir dire. Mr. Deacon, I found to be an expert, and he is a highly qualified trainer in Schutzhund and a judge of the sport.

I felt that he could give opinion evidence. He has been a police officer for many years with the New Westminster Police Department and I have no reason whatsoever to in any way question the integrity of Mr. Deacon, a man who I actually have known for years. He explained to me about the sport of Schutzhund. It is a tracking, obedience and protection type of sport. It tests, generally speaking, German shepherds, using the nose, the coverage, control of the dog.

A video was played to me of an event which showed a quarry running away from a dog, the dog chasing the quarry and doing the process of hold-and-bark, which is to stand. The dog comes very, very close, very, very close, within inches if possible, this is in the sport not in the real world, and barks. The quarry must stand still. As Mr. Deacon pointed out, the quarry is trained, as is the dog and as is the handler.

In real life, the quarries out in the bush in Abbotsford or anywhere else are not trained to stand stock still when a dog comes up to them but Schutzhund training is used in police detachments in Canada and certainly is used in Europe. I point out that your average person out on the street is not trained to stand stock still when a dog comes up to him. [ 52 ] There are two types. There is the hold-and-bark and the net-and-harass which is very close to the bark-and-hold. Dogs do not bite.

As the training video showed to me, as long as the quarry, and in my respectful view, I use the term stock still, stand stock still because that quarry did not move there is no bite. In the case at bar, Mr. Phoummasak was actively hiding. This is not stock still. This is hiding. Mr. Phoummasak posed a threat to the police until he was taken out of his hiding place or came out of his hiding place and the police were able to determine whether he was armed and what the situation was. The dog cannot distinguish between that. I do not know that Mr.

Deacon was able to say what a dog in a Schutzhund training mode would be able to do in the thicket of blackberry bushes, which is out of sight of anybody, including the dog, until the dog goes in there. It is hard to say. [ 53 ] The training is for the dog to be as close as possible without actually touching the individual and to continuously bark. Barking says to the quarry, "Don't move or I'll bite," and the barking says to the handler, "I found somebody." I do not know how the dog can get close to somebody in the blackberry thicket. I think that is pretty tough to do. Mr.

Deacon testified that in the sport, the dog is to be within one or two inches of the quarry, and in real life, not necessarily that close, within a foot, two feet away, because obviously in real life, quarries can be armed. We know that is the case. It happens regularly that police dogs suffer injuries or worse. [ 54 ] He said in the case of Schutzhund, the dogs are not trained to bite necessarily. They can guard. They will bite, of course. Their

initial training and their initial position is always to hold and bark so long as the person does not move. The dog is trained to bite if the person moves or continues to run away. I saw that in the video. There was an actual competition or training video. The dog will bite. If the person does not stop, the dog will bite. It is a sport in a controlled environment most of the time. It is, of course, used by some police forces. Mr. Deacon testified that the Saanich Police Department has used it. I do not know if they still do. He said the New Westminster Police Department did use it.

I do not believe they still do because Sgt. Borgstead testified that he works with the New Westminster Police Department and Delta and he did not say that they used the bark-and-hold Schutzhund technique. Mr. Deacon testified that some Toronto area police departments use it and a couple of others. It is very few. [ 55 ] Mr. Deacon testified that the training can be adapted to use on the street with police forces. For the safety of the dog and the suspect, the bark-and-hold is pulled back but it does require the quarry to basically freeze and to be stock still.

He said in real life the dogs will tolerate some movement and, of course, each dog tolerates different amounts of movement and the handler needs to know that level of tolerance. It is less precise and, in my respectful view, even more closely approximates the RCMP training in the sense that unless there is absolute compliance, there is a higher likelihood that a person is going to be bitten by a police dog, whether it is in the Schutzhund training or the RCMP training, because, in practical terms, very few people will stand stock still and not move. [ 56 ] It seems to me, and I accept the evidence of Mr.

Deacon, that there is a greater chance that there will be fewer bites if this particular type of training is used by police forces in Canada because a dog has different levels of tolerance for movement. Again, you are going to have a situation where as long as the person in any way actively reacts or attempts to flee or attempts to attack they are going to be bitten. [ 57 ] Mr. Deacon testified that with respect to the New West Police Department, as far as he was concerned, they had fewer bites. There was nothing empirical about his comments; it was just based on his experience and I will accept that.

As pointed out by Cpl. Scott, Sgt. Borgstead and, quite frankly, acknowledged to some degree by Mr. Deacon, every single case where a dog is deployed, is unique to its own set of circumstances that includes (

a) the dog, (

b) the handler, (

c) the quarry, and (

d) the circumstances in terms of the area, the nature of the search or tracking or what have you. This is a bit imprecise. Every case obviously will be different by definition. [ 58 ] Mr. Deacon testified about air scenting and testified that the dog comes up to get as much scent as possible and, generally speaking, the tail comes up, the ears may perk up and this gives a true sign to the handler that the dog is onto a scent that the quarry is very close. That is not the case in the case that we have here. That is not the way that Diego, as far as I could tell from the evidence before me, was acting.

He appeared to be on a scent and appeared to be following something but for a very, very short period of time. [ 59 ] Mr. Deacon testified that it is his view that Cpl. Scott either missed the signs of Diego or Diego did not give the signs. This is a criticism of Mr. Deacon's of Scott and Diego, that there should have been a recognition that Diego was on a scent and that the quarry was very close because.

As Diego was going straightforward, that suggested he was honing in, if you will, on the source of the scent, the cone of scent was narrowing so that Diego did not have to cross, he did not have to go side-to-side; he was going on a straight line and this is what should have been picked up by Cpl. Scott. He said that in not doing so, it suggests that there may be a problem not only with the training but with the abilities of either Diego or Cpl. Scott. [ 60 ] When Diego disappeared from sight, it is Mr. Deacon's opinion that Cpl. Scott should have stopped. He should have ordered Mr. Phoummasak to come out.

I am assuming from the way the evidence flowed at that time that this is as Diego is starting to go into the bush and that Scott should have held the dog back as if it were in a building. He said the reason for that is the safety of the dog. It gives the quarry an opportunity to come out and present himself to the police so that there is less possibility of contact with the dog. He said that would be good professional policing. He said it is the best way to avoid the biting of suspects by dogs when the dog gives the signal, the handler stopping and saying, "Come out. The dog's here.

Or I'll send the dog in." As he testified to, he said police officer safety would not be compromised by doing that. The dog's safety is much more compromised by sending the dog in. I say at this point, though, that the dog was not sent in by Cpl. Scott and again Cpl. Scott did not know that Mr. Phoummasak was present. [ 61 ] Mr. Deacon testified with respect to a building search mode and said that basically out here in the bush, it is similar to the building in the sense that if you feel you have got the individual contained, you can order the individual out or send the dog.

He thought it would be a good idea to have Diego bark to let Mr. Phoummasak know that the dog was actually there. Mr. Phoummasak's own evidence is he believed the dog was going to be there, although he said he never heard anybody say anything about it and that, as far as he was concerned, the police were just wandering around, silent. [ 62 ] Mr. Deacon did make comments about the bite mark on Mr. Phoummasak's thigh. He says most likely it was not a kicking motion, that the dog just bit him. He said he did not think it was a defensive bite. I do not know that Mr.

Deacon's expertise goes quite that far because no one knows what happened in the bush. Nobody knows what that incident involved. He was of the view that probably Mr. Phoummasak was lying down. Well, I think he was lying down in the bush. He would not have been standing up in the bush. [ 63 ] What is self-evident, and Mr. Deacon acknowledged this, is that in the real world the threats may well be far more subtle than what is in the training videos and what is in the sport. Sport, of course, is somewhat stylized.

He said that the dogs themselves are less individual than their handlers but on the other hand each dog tolerates different levels of movement in the sport so that again it is something that is a little more subtle and perhaps is not as distinct from some of the training of the police dogs in Canada. [ 64 ] He said a police dog is a location tool but it also is an apprehension tool. There is no question about that. It is part of police work. It is done all the time and Mr. Beatch is not suggesting that that is inappropriate. It is just in this particular case, that is what was excessive. [ 65 ] Sgt.

Jack testified. He was the officer in charge of this investigation. They were targeting a particular group for quite a period of time, Mr. Phoummasak being one of them, although he had no previous contact with him. He testified that after the incidents up on the railway track that the police searched in the bush area and were yelling, in essence, continually, "Police. Show yourself." He said he heard Cst. Doucette yell, "Police. Get down." I am satisfied that Mr. Phoummasak knew that the police were there, they were looking for him and that they had asked him to give himself up. He simply chose not to.

[ 66 ] It was Sgt. Jack's decision to call for Cpl. Scott and Diego. He said during that time they were attempting to contain but they did not know where Mr. Phoummasak was. He said that he heard Cst. Doucette say, "Police. Show yourself. The dog is on the way." When Cpl. Scott and Diego arrived, there was an announcement for Mr. Phoummasak to make himself known, as the police were there. There was cross-examination about the grounds for making the arrest of Mr. Phoummasak and I do not believe that Mr.

Beatch is making that as a point in his defence; however, I am satisfied that the police had reasonable grounds to arrest Mr. Phoummasak. There was, from the undercover officers, recognition that there appeared to be a drug transaction taking place. They had the cell phone in the bush. They had the unknown male and female who said they were going to buy a drug and were using the particular number that the police knew was related to dial-a-dope transactions.

They saw that there was, appeared to them, to be a hand-to-hand transaction so that in the totality of the circumstances, as far as I am concerned, there were ample grounds to begin, if you will, the pursuit of Mr. Phoummasak. After Cst. Doucette had found the backpack which was loaded with drugs and money and cell phones in the bush, certainly the individual who had dumped the backpack, who was the individual on the tracks from the police perspective, in my respectful view, was eminently arrestable, if that is an issue that was at some point intended to be raised.

It is not an issue as far as I am concerned. [ 67 ] Sgt. Jack testified that they knew where Mr. Phoummasak lived. In answer to the question, "Why not simply go there and wait for him?" Sgt. Jack testified, "No, this was the best identification evidence and in interactions with Mr. Beatch said, "You, as defence counsel, would argue identification if they'd waited for the next day." Mr. Beatch, in his argument that he presented to the court in written form, made this comment, which I will reference. In his argument, Mr. Beatch referenced Sgt. Jack's cross-examination and said this, that since they knew it was Mr.

Phoummasak, they simply could have called off the search and arrested him some other day. It is in answer to that sort of point that Sgt. Jack responded. As I said, Mr. Beatch made this comment, "This is not the fault of calling in the dog." He said, "It was good police work," and he acknowledged that there were good reasons to do so but he said the reason for calling the dog was evidentiary, as opposed to safety. Mr. Batch’s point is the police could have simply left the area and arrested Mr. Phoummasak some other time if they had been able to find him again.

There is no guarantee he would return to any residence. There is no guarantee he would remain in the Lower Mainland. There is no guarantee of anything. What the police knew was on reasonable grounds that they had the legitimate, lawful reason to arrest Mr. Phoummasak and he was there. Is it better evidence to find him there with the drugs in his backpack? Yes, of course, it is. However, it is also perhaps not good practice for the police to simply let somebody go when he is, in their view, a known drug dealer. I do not consider that to be a significant issue here.

The police, in my respectful view, were entitled at law to continue to search for Mr. Phoummasak and I do not consider it to be a breach of Mr. Phoummasak's Charter of Rights and Freedoms to be the subject of the search in the bush and the deployment of the dog. The issue is the bite. [ 68 ] In my respectful view, at that point, when Sgt. Jack decided to call out the dog, the dog was called to locate Mr. Phoummasak. At any time, Mr. Phoummasak could have stood up and surrendered to the police. He would have been located and he would have been legitimately arrested. [ 69 ] Cst.

Nugent testified that basically they knew Mr. Phoummasak, they knew him to be an active drug trafficker and, of course, from the information that was given in the course of this voir dire, Mr. Phoummasak was cautious. He was suspicious of police presence in that the two unknown drug users told the undercover officers that Mr. Phoummasak did not know who they were, he would not deal with them and if they came closer, he would leave, which is what happened. [ 70 ] Cst. Nugent also testified that the police, when they were searching, were yelling out, "police", in the dense brush. He did. Other officers did.

He testified that many people did do that. There were a lot of announcements made such as, "Police. Make yourself known." [ 71 ] Cst. Gamboa testified. He was one of the undercover officers up on the tracks, and that is really not necessary for me to go into detail of that. He also became the runner with Cpl. Scott. He testified there were repeated announcements made during the initial search, that the police were present, that Mr. Phoummasak should show himself, that the dog was going to be called and that he could get hurt. He said he was with Cpl. Scott when Cpl.

Scott yelled out, "Over here, over here." At that moment, there was the screaming and yelling from Mr. Phoummasak. The dog was on him at the same moment. What Det. Gamboa saw was the accused buried under the brush. He was flailing about and kicking at the dog and that Cpl. Scott pulled the dog away. [ 72 ] He testified that he did say to Mr. Phoummasak, at least generally into the bush area, "You may be injured. The police dog has been called. You could get bitten. Come out. Put your hands up. Raise your hands. Show yourself." Mr.

Phoummasak clearly chose not to. [ 73 ] As this voir dire carried on, there were issues raised by the defence about the records of this particular dog and general records respecting the use of dogs in Abbotsford. Those were provided after some delays, as near as I could tell. Most, if not all, of the significant records were provided to defence and they have been filed. There are incident reports of bites and there are statistics that are drawn from some of the incidents.

Again, as I say, each time a dog is deployed and each time there is contact, although there are reports generated, each one of these is a completely unique set of circumstances. Mr. Beatch, in his argument, where he says that the police deployed an excessive amount of force and used a weapon that is capable of causing grievous bodily harm or even death, pointed out to the fact that on one occasion, Diego bit somebody and severed their brachial artery. The circumstances of that particular incident are that the suspect was advancing on Cpl. Scott armed with two knives and the dog bit the person.

That is totally different than here and, yes, he severed the artery but the officer was at great risk, as is often the case in these situations. Every time there is contact, a report is generated, pursuant to the training procedures, pursuant to the standards set by the RCMP in Canada and adopted, undoubtedly, by the Abbotsford Police Department. Cpl. Scott and the dog, Diego, have been exonerated. Mr. Beatch has made the point that clearly Diego seems to bite more often than any other dogs. Mr. Deacon pointed out that the bite ratio, which conceivably could be as high as 30-odd percent, seems to be high.

Again, every situation is so unique it cannot possibly be used in comparative terms. The only ones would be if people were lying under bushes. Again, the issue of lying under bushes is, you are still remaining hidden and you are still a threat no matter who you are, to the police. You are actively attempting to hide. [ 74 ] Mr. Deacon did talk about these things. He was recalled. He testified further with respect to what the evidence of Cpl. Scott was, what the situation was as the dog appeared to be honing in on the quarry, that is, Mr. Phoummasak. He was of the view that Cpl.

Scott should have been more alert to what was happening and that the quarry was very close. Mr. Deacon did not go out to this brush

area. He does not know what it looked like and neither do I. Pictures were not presented to the court with respect to this area but the description suggests a very dense bush area, which I referenced earlier on. [ 75 ] He was of the view that Diego did a pretty good job, that he handled himself well and that he basically indicated to Cpl. Scott the quarry was close by. Mr. Deacon, in essence, has made the point that if there is any fault to be attached to anyone in Mr. Phoummasak being bitten, it would be with Cpl. Scott because he did not notice what should have been obvious signs that the quarry was nearby.

I have discussed that already. As far as I am concerned, Cpl. Scott legitimately was not aware that Mr. Phoummasak was within 20 feet. [ 76 ] We need to bear in mind that it was dark, that Mr. Phoummasak was well-hidden, that it is dense, thick brush. Cpl. Scott, in my respectful view, quite reasonably had in his mind that this person could easily have been over the fence and on the other side in the industrial complex. [ 77 ] I accept from Cpl. Scott that the signs that were there that he did notice were signs that the quarry or something was nearby but he could not tell and would not know how close. Mr.

Deacon tends to disagree with respect to the fact that Cpl. Scott should have known that the quarry was very close. I do not know how Mr. Deacon can say that when the fence is right there, the quarry, for all anybody knew, was on the other side of the fence. He could not necessarily know that the quarry was underneath thick blackberry bushes. [ 78 ] We resumed this hearing in October after a number of delays, first with respect to disclosure of police reports, secondly, with the fact that Cpl. Scott was bitten by Diego, which has an element, I guess, of irony to it.

The explanation was that Diego was being retired and there is a new dog being trained by Cpl. Scott. There was a bit of jealousy in there and the dogs were fighting, Cpl. Scott got in between the two of the dogs and was bitten by Diego. I am not a dog handler but even I know you do not get in between two dogs that are fighting. [ 79 ] Cpl. Scott testified about the records that are kept, the number of bites that have been made. There are some discrepancies between different reports. They are not generated by himself. Some were before. He does not maintain a record.

He used to maintain a record but he does not anymore. He said that training is an ongoing sort of weekly process. There is constant training. Dogs are trained to focus on legs and arms, not heads. He said that there were 11 contacts in 2012. It was hard to know from all of these different reports how many actual contacts and what the extent of them were. There are subject behaviour officer response reports that are generated with respect to these things so there may be more contacts. Cpl.

Scott said that he has not ever played down the number of times that Diego has bitten somebody, nor he has tried to lower the number of times or play down the incidents. I accept that. These are not things that are unnoticed by anybody. When someone is bitten by a dog, and certainly Mr. Phoummasak testified to that, there is evidence of that. Again, Diego and Cpl. Scott have met the standards, as outlined by the RCMP and the vast majority of police detachments across Canada. [ 80 ] Cpl. Scott testified more in depth about the training of Diego.

Diego is trained to bite and hold, particularly in training when the quarry is wearing protective sleeves. That is the training. It is basically the same training that goes on in Schutzhund, the quarries are, of course, protected. As long as in Schutzhund, they do not move, they do not get bitten. If they move, they get bitten and those dogs, as I saw in the training video, bite on the arm. Basically, Cpl. Scott acknowledged that if he does not know where the quarry is, he is only going to find out when the dog bites them. He just has no way of knowing where the quarry is.

The dog does not know until the dog finds the person. He testified that he can call off Diego if somebody is running away. He has the ability, if you will the control over the dog, to do that. He said it is entirely different if the quarry is hidden. He said if Diego locates them, he will come into contact with them, unless Cpl. Scott has seen the quarry and, therefore, has the opportunity to call off Diego and prevent him from coming into contact. Again, it is an inherently dangerous situation not only for the dog, as I accept Mr.

Deacon says the dog is more at risk if he just goes in, but it is an inherently dangerous situation for the dog and the police officer. The RCMP training is that they will go and make contact. He is trained to the RCMP standard and that is all that Cpl. Scott can do at this point with respect to his training and Diego's training. [ 81 ] Mr. Deacon, again, was called. I think he has been up about three or four times in the course of this voir dire. He is of the view that if Diego is not restrained, Diego will bite, period. If a quarry is an open field and Cpl. Scott knows the quarry is there, Cpl.

Scott can and will call off Diego. The issue is if the suspect is hiding. I have basically covered off what Mr. Deacon has said about the situation of Cpl. Scott being able to read the signs to be able, in principle, from a training and a deployment perspective. That he should be able to first hold the dog and order the suspect out. In other words, my assumption is, based on my experience and the evidence of Mr. Deacon, is that once the handler believes that the quarry is close by, the handler could and perhaps should, from a police perspective, stop the dog and say to the quarry, "We're right here.

The dog's coming if you don't come out." That is what I took from Mr. Deacon and I cannot say that that is in and of itself inherently a wrong thing. I think, quite frankly, to minimize the number of bites is a good thing but you have to know the quarry is there and it cannot be in the dark, it cannot be in the bush. I do not see how that can happen but I accept Mr. Deacon's evidence with respect to some of that. [ 82 ] It is Mr. Deacon's opinion that Cpl. Scott should have known that Mr. Phoummasak was nearby and that there could have been an alternative course of action taken to prevent the dog from biting Mr.

Phoummasak, which, in essence, is Mr. Beatch's position and his point that he makes. Mr. Deacon said that he did not believe there should be any blanket policy in terms of the dog handling and training in Canada, that it should not be a blanket policy of biting first, which, in principle, I agree with. As I have said, and I reiterate, it is the circumstances of each case being so distinct that it is impossible to establish any type of policy that would minimize risk without putting police and dogs in greater potential danger by simply calling out.

I cannot see that as being reasonable in the real world. [ 83 ] Mr. Deacon made a comment about a suicidal male where the male stood up and was hiding and stood up and was bitten. Again, you know, one does not know with respect to any of these cases what that individual is going to do vis-à-vis the police officer or any other officers in the area so it is a very difficult balancing act, one presumes from the evidence that I have heard. Clearly, as Mr. Deacon has pointed out, actions of the quarry certainly can provoke biting. Hiding does not always equal significant risk but, as Mr.

Deacon pointed out, and I agree, and it was pointed out by Sgt. Borgstead, there is always potential risk when a quarry is hiding and actively hiding. The police officers do not know what that situation is.

[ 84 ] Mr. Phoummasak testified that he was selling drugs and he concealed himself. He was afraid to get caught by the police. He did not want to get caught. He said he did not hear yelling up to the point where the dog was panting, although I do not accept that. Police were calling. Every police officer testified about calling out. He said he thought they were police officers. He thought that they were going to call the dog. He certainly expected that. He said he did not want to be seen; he did not want to be caught. He said he did hear footsteps around him. He did hear people saying, "Check over here.

Did you try over there?" He said he did not believe he heard anything about a dog. He said he could not see the dog but he assumed the dog was going to be called. Again, as he heard footsteps, people saying, "Check over here, check over there," he is assuming a dog is going to be called. He chose not to declare himself. He said he lay flat, put his hands over the back of his head to show the police that he surrendered. However, the police could not see him because he was hiding. [ 85 ] He said he heard panting and the dog just bit him.

He said he did not move at all, he was just bitten; he screamed and yelled at them to get the dog off. He said two officers came up to him and said to him, "You think you can run away from the police?" Somebody also said to the dog, "Good boy." That was not put to the witnesses, either Gamboa or Scott. He said they did not do anything to put the dog away from him and again that is inconsistent with the evidence of Cpl. Scott and indeed Det. Gamboa. The evidence is very clear that the dog was very quickly taken away from Mr. Phoummasak after he had found him. He said he was in pain and he has a scar.

He said it was painful. He said he could hear people walking around. They never called out. He never called out. [ 86 ] Sgt. Borgstead was called by the Crown because he is a canine officer, handler and trainer. He has an impressive curriculum vitae . He works with Delta and New Westminster. Mr. Deacon, ex-sergeant Deacon, has not worked with the dog teams in a long time and when he was with New Westminster, he was not an actual dog handler; he was in charge of the dog unit and did training but he, himself, was not a dog handler. Sgt.

Borgstead is an active dog handler and has dealt with something in the range of 500 callouts or deployments over the last six years or so. He figures that is probably low because he is the one doing the supervision, as opposed to doing the active work. It was his view that when an individual is hiding from the police in a heavily wooded area, it is the greatest risk to the dog handler or the dog in that situation. He said going after someone you know who is trying to get away from you and is hiding from you; the risks escalate exponentially, as he said, each year.

He made a comment that there is a difference in the type of criminals that sometimes are out there dealing in drugs. [ 87 ] There is an element of violence and weaponry that is increasing every year. He said that the dog use is becoming more significant for these higher-risk types of situations. He said there is an independent investigation office. He says there is also the Office of the Public Complaints Commissioner which are two oversight bodies that deal with complaints respecting the police use of dogs, that the cases are reviewed.

He said in this particular case, because it was a drug investigation involving an actual drug dealer, he said in the drug trade, the handler would expect that there is a possibility, if not a likelihood, that the individual would be armed and the dog is basically the first line of defence for the handler. He thought it was reasonable the way that Diego and Cpl. Scott were deployed. [ 88 ] He said that a quarry in hiding has a tactical advantage over the dog handler and the dog and even the runner. He said the quarry might be well-rested.

He said the handler might be tired after running and working his way through. He said that the quarry has basically three choices. The quarry can give up, the quarry can initiate an attack or the quarry can remain hidden. He said within 21 feet is a critical zone for police and I have referenced that before. Quite frankly, his example of somebody coming at him with a rubber knife within 21 feet and he did not have time to prevent himself from being stabbed was telling. He said the handler, therefore, within 21 feet is within a lethal area, a critical zone.

Therefore, the element of possible risk to the handler is very, very high. The handler is extraordinarily vulnerable except for the dog. He was familiar with Schutzhund. He said that if he knows that a quarry is 30 or 40 feet or so away from him and his dog, he will take cover, he will call a person out and he will call, if he needs to, an Emergency Response Team to move in, but he has to know the quarry is there. [ 89 ] In respect to Mr. Deacon's testimony, Sgt. Borgstead disagreed and felt that Mr. Deacon was holding Cpl. Scott to an unreasonable standard in the circumstances of this case.

He was of the view that Cpl. Scott's conduct and the use of Diego was not unreasonable. He said that the photographs that showed the bite mark on Mr. Phoummasak's thigh is consistent with a dog bite and that he has seen cases where there have been many bites and that this is not the case, obviously. He said in this case it simply appears that Diego bit and held on, which is what he is trained to do. He said dogs react differently. Sometimes their nose comes up, sometimes they do not, sometimes they come up all the way, sometimes halfway.

In a perfect world, the dog would always give a signal and the same signal but in reality he said it does not happen and, quite frankly, I accept that. It underscores that reality is not a sport, it is not a training exercise; it is a dynamic, fluid situation dependent on the environmental conditions, the nature of the handling. Dogs are animals and it is impossible to have perfection and precision and the same thing every single time. [ 90 ] What Sgt. Borgstead testified to, which Mr.

Deacon, in essence, acknowledges is that the handler is counting on the dog to communicate to the handler that somebody is nearby. That, therefore, begins to give the police a tactical edge but it does not always work that way. There are too many variables and I think Mr. Deacon acknowledges that. He testified that Diego did exactly what he was trained to do, as even Mr. Deacon acknowledged the dog handled himself well. In that case of Sgt. Borgstead's evidence, Sgt. Borgstead did not fault Cpl. Scott, whereas Mr. Deacon did. He acknowledged that, when put by Mr.

Beatch, "Well, would it be okay if somebody had gone up and kicked Mr. Phoummasak in the head?" Sgt. Borgstead said, "No, of course not." Sgt. Borgstead's position and opinion was that until the handler knows where the suspect is and that the suspect is under control, there is a risk to the handler and to the dog. The dog biting a person, he says, gives the handler an opportunity to react, potentially, to a volatile and dangerous situation. Again, Mr. Phoummasak lying in the bush is an unknown to the police.

If he was known to be an aggressive, violent human being who carried firearms, I do not think we would be having this voir dire but because he is not necessarily known that way does not mean to the police, as they are in the bush, that he is not. They do not know that until he has been apprehended and located. [ 91 ] He said that police in a situation like this have to treat the situation as potentially one of the most dangerous situations that police officers can be in.

He acknowledged that a dog can be a medium application of force, an intermediate weapon is the way it was described, intended to temporarily incapacitate somebody, I suppose, much like a Taser. [ 92 ] Mr. Beatch provided the court with a very detailed argument, written out, and I will reference it. Mr. Beatch has made the point that in this particular case Cpl. Scott and Diego breached the laws defined in s. 25 of the Criminal Code . Mr. Beatch acknowledged, in essence, that this is not about training; it is about the breach of s. 25 . While it seems inconsistent in the sense that Mr. Beatch called a lot

of evidence about training and different types of training, the Schutzhund versus the RCMP training, and then in reply to the Crown's argument said that it is really not about training, it is about s. 25 , to some degree, I sort of disagree with Mr. Beatch. Which is interesting because it is his argument. The element of training in this particular case is part and parcel of what happened out in the bush so it is about training to some degree. Mr. Beatch made the point in his argument that the deployment of the dog in and of itself was good police work.

That is his terminology and I agree. [ 93 ] The issue in this case is whether or not the police used reasonable force in arresting Mr. Phoummasak who, at the time, was actively evading the police; he was hiding. Mr. Beatch has made the point that the bite caused grievous bodily harm and that s. 25(4) comes into play. That

section reads: A peace officer and every person lawfully assisting the peace officer is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested if the officer is proceeding lawfully to arrest the person -- which is the case here, in my respectful view - -- the offence for which the person is to be arrested is one that they can be arrested without a warrant -- which is true - -- the person to be arrested takes flight to avoid arrest -- which in this case is true - -- the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm and the flight cannot be prevented by reasonable means in a less violent manner. [ 94 ] Mr.

Beatch cites the case of R. v. Bottrell , a case of the British Columbia Court of Appeal from 1981, found at 60 C.C.C. (2nd), p. 211. In that case, the Court of Appeal seemed to be attempting to define grievous bodily harm. I make this point. The Criminal Code of Canada defines bodily harm as something that is more than merely transient or trifling in nature. Grievous bodily harm is not defined in the Criminal Code of Canada . The term "grievous bodily harm" is used in this context along with the word "death". Mr. Beatch cites Bottrell that says:

Section 25, and as you will see the defence section,

Section 35 adds something to the words "Bodily harm" by the use of the word " Grievous ". Neither of those terms are defined in the Criminal Code nor by any other Statute of which I am aware. Since an adjective, namely " Grievous " has been added to "Bodily harm" I suggest that this must be something more than minor bodily harm, particularly since death and grievous bodily harm are used in the section. Therefore " Grievous bodily harm" must mean "causing a hurt or pain." At paragraph 31, the court: The meaning of the words " grievous bodily harm" must be explained to the jury.

These words do not mean any "hurt or pain" as stated by the learned trial Judge but a serious "hurt or pain". [ 95 ] In the case of R. v. Paice , a Supreme Court of Canada decision found at [2005] S.C.C., p. 22. In that case, Mr. Paice was charged after getting involved in a fight with an individual who died as a result of the blows struck by Mr. Paice. The fight itself was a consensual fight. Just as a quote from Paice : Second, the Court of Appeal was of the view that, on the evidence, the only conclusion that could be reached was that Mr. Paice had in fact intended grievous bodily harm.

Applying the standard in Yebes , the Court of Appeal concluded that the "serious harm" mentioned by the trial judge in the context of consent must, in this case, be the same as "grievous bodily harm" within the meaning of s. 34(1), notwithstanding his express conclusion that Mr. Paice had not intended death or grievous bodily harm.

The Court of Appeal reasoned as follows, at para. 12: The inflicting of a hard blow leading to someone falling on the pavement and his head bouncing on it, followed by no reaction on the part of the fallen person with two further blows to the head, all facts found by the trial judge, lead to the conclusion that in this case, at

least, the serious bodily harm is the same as "grievous bodily harm" under s. 34(1). Any other conclusion, based on the judge’s fact finding, again would not meet the standard of Yebes . Again here, the Court of Appeal misapplied the principle in Yebes. Further, the court seemed to conflate the question of intention with the consequences of the act. There is nothing in the trial judge's reasons that would suggest that he was of the view that Mr. Paice intended what actually happened. In any event, these are all questions to be determined afresh based on the evidence at the new trial.

The Supreme Court of Canada went on to order a new trial. Mr. Justice Fish made this point: Finally, Mr. Paice urges us to find that the trial judge understood, and applied correctly, the notion of "grievous bodily harm" contemplated by s. 34(1) of the Criminal Code . Considering the trial judge's reasons as a whole, I am not persuaded that he did. The trial judge found that there was an intent to cause serious bodily harm but not "grievous bodily harm". Paragraph 41, Mr.

Justice Fish states this: For the guidance of the judge who will preside at the appellant's new trial, I nonetheless believe it helpful to add that "grievous bodily harm", within the meaning of ss. 34 and 35 of the Criminal Code , is not limited to harm or injury that is permanent or life-threatening. In ordinary usage, "grievous" bodily harm means harm or injury that is "very severe or serious": see The Canadian Oxford Dictionary (2nd ed. 2004), at p. 664.

These terms respect the statutory context in which that expression was adopted by Parliament in the relevant provisions of the Code . [ 96 ] Again, I go back to the fact that the "grievous bodily harm" is mentioned in the same legal context as "death". "Grievous", by definition, is something that causes great pain or suffering that is hard to bear. I disagree that the single puncture wound and the scratches on Mr. Phoummasak's thigh constitute grievous bodily harm. Therefore, s. 25(4) does not come into play and I reject that argument by the defence.

However, I need to consider whether or not Diego simply biting in the bush Mr. Phoummasak is an excessive force. [ 97 ] I have come to the conclusion that this was not grievous bodily harm. By all accounts, there are scratches and there appears to be one puncture wound that did not require stitches; it did require medical treatment and has left a scar to today and caused Mr. Phoummasak some discomfort for a period of two weeks. In my respectful view, that, in and of itself, does not constitute grievous bodily harm.

In my respectful view, hurt and pain is certainly not sufficient to quantify as grievous bodily harm. [ 98 ] The issue still is whether or not, in the circumstances of this case, the Abbotsford Police Department, in arresting Mr. Phoummasak, used excessive force. Mr. Beatch, in his eloquent and complete submissions to the court, has outlined the law, as it applies, and I agree with the law as he set it out. I do not believe that Mr. Price in any way disagrees with the law. [ 99 ]

Section 7 of the Canadian Charter of Rights and Freedoms states as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 100 ]

Section 25 of the Criminal Code of Canada does justify the use of force for police officers acting within the execution of their duty as long as the force uses as much as is necessary in the circumstances. Section 25(1) states: Everyone who is authorized by law to do anything in the enforcement of the law 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. In this case I am satisfied, and I do not think anybody is taking exception, that Mr.

Phoummasak was arrestable and the police were acting within the scope of their authority in attempting to affect an arrest on Mr. Phoummasak. The defence makes the point that there were other options other than bringing a dog in that is trained to bite when there could have been an opportunity, for example, to attend to Mr. Phoummasak's known residence, to wait for another time, to find him somewhere else rather than deploy the dog. Although Mr. Beatch acknowledged that the deployment of the dog in and of itself was a reasonable conduct on the part of the police.

As he said, it was good police work to bring the dog. What was not good police work, according to Mr. Beatch, and what amounts to an excessive amount of force used to arrest Mr. Phoummasak was the dog trained to bite and hold, who inevitably would bite and hold in circumstances similar to this is Mr. Beatch's point, that that is an excessive use of force. [ 101 ] Mr. Beatch points out that the law is outlined with respect to the excessive use of force. In the case of R. v. Nasogaluak , a Supreme Court of Canada decision from 2010 at page 6.

In that case, the court states that the amount of force that is to be used in the course of affecting an arrest has to be governed by the principles of proportionality, necessi

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