R. v. Gilliland Date:, 2016 BCPC 320

Citation: R. v. Gilliland Date: 20160928 2016 BCPC 0320 File No: 84156 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAYMOND FREDERICK GILLILAND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: J. D. Crowhurst Counsel for the Defendant: D. Ferguson Place of Hearing: Abbotsford , B.C. Date of Hearing: July 21-22, 2016 Date of Judgment: September 28, 2016

Introduction [ 1 ] The Accused, Raymond Frederick Gilliland, is charged with two counts of assaulting a peace officer engaged in the execution of his duty, contrary to section 270 (1) (

a) of the Criminal Code of Canada.

The offences are alleged to have occurred on February 29, 2016 on the premises of the Seven Oaks Shopping Mall in Abbotsford, B.C. and each count is alleged to have been committed against a different police officer. [ 2 ] There is no doubt on the evidence presented at trial that on February 29, 2016, the Accused was involved in a physical altercation with each of the officers named in the Information, but there is some dispute as to exactly what transpired and whether or not the actions of the Accused amounted to as assault on each of these officers. [ 3 ] The Accused is also critical of the actions of the police (and in turn of the Crown) in their failure to secure a potential video recording of the incident that may or may not have been captured on a mall security camera, despite early and frequent requests made by him for preservation of this evidence.

He argues that the failure to preserve this evidence amounts to a breach of his right under

section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) to make full answer and defence to these charges. [ 4 ] The Accused also argues that the actions of the police officer who initially detained him amounted to an arbitrary detention, something that he and every other Canadian has the right to be secure from, by virtue of

section 9 of the Charter . It is his position that any contact that he had with the police officer was not an assault, but rather

an act of self-defence justified in preventing a breach of his right not to be detained arbitrarily. [ 5 ] The Crown argues that there has been no arbitrary detention. The Crown says that the detention of the Accused for investigative purposes was lawful, and therefore the Accused had no right to assault the police officers who were attempting to deal with him. The Crown also argues that loss of any video evidence occurred as the result of circumstances beyond its control, and in fact due in part to reasons caused by the Accused, namely injuries suffered by the investigating officer that the Accused caused.

The Crown also argues that it is speculative to think that the loss of any video evidence would adversely affect the Accused’s right to make full answer and defence, especially since the evidence of an independent eye-witness does not suggest that this would be so. [ 6 ] At trial a total of six witnesses testified, four for the Crown and two for the Accused. Testimony was given by the two police officers that the Accused is alleged to have assaulted.

The other Crown witnesses were a woman who witnessed some of the altercation between the Accused and one of the officers, and the Security Supervisor of the Seven Oaks Mall. The Accused testified and his wife also gave evidence. [ 7 ] It deserves to be mentioned that the quality of advocacy by both counsel during the trial of this matter was outstanding. [ 8 ] Following is a

summary of the evidence presented, a

summary of the applicable law, and the reasons for judgement in this matter.

Summary of Evidence [ 9 ] On Monday, February 29, 2016, Constable Shawn Alton, a member of the Abbotsford Police Department with eight years of experience, was on duty and in uniform. At 4:05 p.m. he was dispatched to the Seven Oaks Mall in Abbotsford, in response to a complaint of an intoxicated male who was causing a disturbance. He drove his unmarked police vehicle to an area of the mall where the Best Buy store is located across a roadway from the mall complex.

As he drove along that roadway, he observed two males walk across the road and go to an area behind the Best Buy store where there is a separate covered parking lot underneath the main floor of the Best Buy Store. [ 10 ] Constable Alton testified that he pulled his vehicle into this parking lot and parked. As he did so, he observed the two males who had just crossed the roadway. They were in an area adjacent to the Best Buy building on a sidewalk between the building and the parking lot, next to a bicycle rack. He testified that he saw what he suspected to be open air drug use.

He said that he saw an open flame and a pipe. The males attempted to conceal their activity. They were kneeling down, close together and hunched over.

Constable Alton testified that he observed a blue flame, and this heightened his suspicion that the two men were using drugs because, from what he has observed in his experience as a police officer, drug users will use small torches to light their crack pipes, because this type of flame is less likely to be affected by wind and generates the necessary heat for the drug. [ 11 ] Constable Alton testified that he exited his vehicle with the intention of detaining the two males for investigation of possible possession of controlled substances. He called out to them to stay where they were.

He testified that he saw one of the males, the Accused, put something in his backpack. As he did so, he testified that a woman who was standing nearby called out to him “leave him alone.” He walked past the woman and one of the men began to walk away. Constable Alton testified that he told the two men: “stay where you are, you’re being detained for a drug possession investigation.” [ 12 ] Constable Alton explained that he had reasonable and probably grounds to believe that the males were in possession of a controlled substance.

Factors contributing to his belief included the actions of the males in attempting to conceal their activity, the type of lighter being used and the action of the males in attempting to flee the scene after becoming aware of police presence. He concluded that this conduct was consistent with someone who was in possession of a controlled substance. [ 13 ] As Constable Alton approached the two men, they each took off in opposite directions.

According to Constable Alton, the Accused picked up a skateboard and at first started advancing toward Constable Alton in a manner which led the Constable to believe that he might be intending to use the skateboard as a weapon. Constable Alton placed his hand on the handle of his gun, but did not draw the weapon. The Accused then began to run in the area between the Best Buy store and the main mall, near the crosswalk. Constable

Alton testified that he pursued the Accused and caught up with him in the front of the Best Buy store. He said that as he did so, the Accused dropped his backpack and shoved at him with the skateboard. Constable Alton said that he was able to pull the skateboard out of the Accused’s hands and toss it away. A struggle between the two men continued in which, according to the Constable’s evidence, the Accused threw perhaps as many as five punches at the Constable, with none of them connecting.

The two struggled into the cross-walk, and in the course of the struggle, the Constable was able to call for assistance from other officers, using his police communication device. [ 14 ] Constable Alton testified that the Accused was able to get away from him and proceeded to run around the corner of the mall, in a westerly direction, and entered the mall in an entrance at the center of the north side. Constable Alton pursued the Accused and was able to catch up to him and tackle him to the ground inside of the mall.

He was able to roll the Accused on to his stomach and place him in handcuffs. [ 15 ] Shortly after this, Constable Alton recalls that Constable Jason Kingra arrived. Constable Alton testified that he told Constable Kingra that he hadn’t been able to search the Accused and he asked Constable Kingra to do so. In the course of conducting this search, Constable Alton says that the Accused kicked at him, striking him in the shin. He held the Accused’s legs down after that. Although it is alleged that the Accused also kicked Constable Kingra, Constable Alton testified that he did not see this occur.

Constable Alton recalled that as he and Constable Kingra were dealing with the Accused, the Accused kept saying that the police were picking on him and that he hadn’t done anything wrong. [ 16 ] Constable Kingra testified that he attended to the Seven Oaks Mall on February 29, 2016 in response to Constable Alton’s call for assistance. He recalls that when he arrived, the Accused had been handcuffed by Constable Alton, but that he was informed by Constable Alton that the Accused had not yet been searched. He performed a pat-down search of the Accused to determine if the Accused was in possession of any weapons.

He located a folding knife in the Accused’s front pocket. The knife was not a prohibited weapon. After completing his search of the Accused, he said that he was lifting the Accused to his feet. As he was doing this, the Accused kicked him in the shins. He testified that he was only kicked once by the Accused. He said that he told the Accused to calm down. Constable Kingra said that the Accused complained of chest pain and said that he was having trouble breathing, so Constable Kingra called for paramedics to attend.

Constable Kingra described the Accused’s demeanour overall as being angry, assaultive, uncooperative and profane. [ 17 ] In the course of this matter, Constable Alton incurred an injury to the medial collateral ligament of his right leg. His injury prevented him from working for the next two and a half weeks, and for the same period following this, he was assigned to light duty in the office. [ 18 ] The Accused is 42 years of age, and is about two inches taller than Constable Alton.

He testified and acknowledged that he was the person who was involved in an incident with Constable Alton at the Seven Oaks Mall on February 29, 2016, though he describes the incident somewhat differently. He testified that on that day he and his wife went to the Seven Oaks Mall, intending to meet up with his daughter. He testified that while at the mall, he met up with a friend of his, a Mr. Wiler, and began talking to him beside the Seven Oaks Mall. After being inside the mall briefly, the Accused returned to the area in front of the Best Buy store where Mr. Wiler asked him for a cigarette.

He testified that he opened up his backpack, intending to get a cigarette for his friend. He denies being in possession of a pipe, or of any sort of a lighter with a blue flame.

He said that he had an ordinary Bic lighter, but that he never lit his friend’s cigarette. [ 19 ] The Accused testified that he was alerted to the presence of Constable Alton when the officer said to him “hey you, come here.” The Accused says that he replied “What, I’m not doing anything.” He said that as he stood up to go and be with his wife, he was attacked by the Constable, who ran at him, grabbed him, and pushed him into the glass in front of the Best Buy store.

The Accused testified that when this happened, he began to call for help, and said “they’re beating me up.” He said that he ran away from the police officer, who was acting in a very aggressive manner towards him. The Accused then testified: “I don’t have a complete recollection of what took place after that.” He said that he has a “blank spot” in his memory, which he attributes to a head injury he suffered in a previous assault. He also testified that he was suffering from a “panic attack” and he also testified about a recent diagnosis of Post-Traumatic Stress Disorder.

In cross-examination, he stated that this blackout began when he was beside the bicycle rack near the Best Buy store. He told Crown Counsel that during the blackout he “may have been acting in an agitated state”. [ 20 ] It is troubling that the Accused was at the mall that day, because at the time, he was on a court order which clearly prohibited him from being within an area that clearly included the Seven Oaks Mall property. [ 21 ] The Accused denied that he ever punched at Constable Alton or attempted to strike at him with his skateboard. He testified that he ran from the Constable and was tackled.

He recalls that he was tackled by more than one officer, and that they treated him very roughly. When asked in cross-examination if he had kicked any of the police officers, he replied “not purposely, no.” [ 22 ] The Accused’s wife, Tanya Gilliland, testified that she and the Accused went to the Seven Oaks Mall on February 29, 2016 and that they met Mr. Wiler there. She recalls seeing the Accused reach into his backpack to get a cigarette for Mr. Wiler. She also recalls hearing a police officer pointing towards her husband and Mr.

Wiler, saying “hey you, come here” and her husband replying “what, I didn’t do anything.” She testified “I heard the cop saying a few things, but I don’t recall what he was saying.” She describes the actions of her husband and the police officer as “dancing back and forth” and says that she told the police officer “leave him alone, he’s not doing anything.” She testified that the officer responded to her with profanity. She also testified that her husband dropped his skateboard and it rolled past her. According to her evidence, Constable Alton then engaged in assaultive behaviour towards her husband.

She says that he knocked the Accused’s head into the glass in front of Best Buy a few times. At this point her attention was distracted because of a crying child and she went to look after the child. She says that she heard the Accused say “help, they’re beating me up” but when she turned back to where she had last seen her husband, he and the officer were both gone. [ 23 ] Mrs. Gilliland testified that she went to the security office of the mall the next day to ask about the video, but that she was told that the request would have to come from a lawyer.

She called the mall security officer a couple of weeks later. [ 24 ] A portion of the incident was witnessed by Jaylene McPhail, an individual unconnected to either party, who was driving on the

roadway between the Best Buy Store and the main area of the mall on February 29, 2016 at the time that this incident was occurring. Shetestified that she could see the Accused and Constable Alton involved in a struggle. She described seeing the taller of the two men,punching the shorter man, a police officer. She then saw the taller man run from the police officer in a westerly direction to the front ofthe mall. She saw the police officer run after the taller man, and she recalls that the police officer was limping. She recollects that shesaw at least ten punches being thrown.

In cross-examination, she acknowledged that she did not see the beginning of the incident. [25] The Accused testified that on his first appearance in court on this matter, he requested that the video recording of this incidentbe preserved. On March 22, 2016, just over three weeks after the incident, he wrote a letter to Crown Counsel in which he requesteddisclosure of any video recordings of this incident that may have been captured on surveillance cameras that are present in the area.

Theletter is stamped as having been received by the Crown on March 29, 2016, four weeks after the incident. [26] Ryan Sandau is the Security Supervisor of the Seven Oaks Mall. He testified that he was not informed about this incident on theday it occurred. He said that the video cameras on the outside of the mall do record what they capture, but that these recordings arenormally preserved for only fourteen days, unless there is some other reason to preserve them.

He testified that his employer’s policy isto preserve these recordings if requested to do so by police, by the Insurance Corporation of British Columbia, or on their own initiativeif they feel there is some reason to do so. Requests from other parties are handled on an individual basis. He testified that he recalled arequest from a member of the public for a recording, but was unsure if that request related to this incident. He testified that in that case heviewed the video, but nothing of interest was disclosed on the video that he observed. Applicable Law

Section 7 of the Charter [27] Under

Section 7 of the Charter, “Everyone has the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice.” This includes the right of accused persons to make fullanswer and defence. In furtherance of this right, the Crown is obliged to disclose all relevant material in its possession or controlconcerning a charge to the Accused, subject to its discretion with respect to the withholding of information and to the timing and mannerof disclosure. The limits of disclosure are more fully discussed in R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326, andconcern such things as privilege, protection of the identity of informants and other considerations. I will not review those exceptions indetail, but will simply state that in the event that the Crown is in possession of a video recording of an alleged offence, in most cases theCrown has an obligation to disclose that video to an accused. [28] In R. v. McNeil, 2009 SCC 3, the Court set out the relevant law on this point, which I will now summarize: 1.

The Crown has an obligation to disclose to the accused all information that is relevant to a charge and that is in its possession. 2. The Crown’s disclosure obligation extends only to material relating to the accused’s case in the possession or control of the Crown. 3. While the roles of the Crown and the police are separate and distinct entities, the police have a duty to disclose to the Crown allmaterial pertaining to their investigation of the accused. 4.

For the purposes of fulfilling the disclosure obligation, the investigating police force, although distinct and independent from theCrown at law, is not a third party. It acts on the same first party footing as the Crown. [29] In R. v. La, (SCC), [1997] 2 S.C.R. 680, the court held that where relevant evidence is under the control of theCrown (or by extension under the control of the investigating police department), there is an obligation to preserve that evidence. Whenthe Crown loses evidence that should have been disclosed, the Crown has a duty to explain what happened to it.

If the explanationsatisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has notbeen breached. The Crown fails to meet its disclosure obligations if it is unable to satisfy the judge of this, in which case a breach of theAccused’s rights under

section 7 of the Charter had then been proven. [30] Counsel for the Accused has referred to R. v. Trembley, 2013 ABQB 43, a case with similarities to the case at bar. In Trembley,an accused, charged with possession of cocaine found in a hotel room registered to him, requested that the Crown produce any videosurveillance showing who accessed the room in question. It turned out that the surveillance video was erased two weeks after it wasrecorded and accordingly was unavailable. On the facts of that case, Mr.

Justice Hillier of the Alberta Court of Queen’s Bench concludedthat the video evidence “was lost through unacceptable negligence”. He found that the two criteria justifying a judicial stay ofproceedings set out by the Supreme Court of Canada in R. v. O’Connor, (SCC), [1995] 4 SCR 411 were present,namely: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice.

Section 9 of the Charter [31]

Section 9 of the Charter simply states that “Everyone has the right not to be arbitrarily detained or imprisoned.” In this caseConstable Alton asserts that he was attempting to detain the Accused for investigation of the offence of possession of a controlledsubstance contrary to the Controlled Drugs and Substances Act. The powers of a police officer to detain an individual for the purpose ofinvestigation were considered by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52 , [2004] 3 SCR 59; 2004 SCC 52.

The court said that police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances. Justice Iacobucci wrote that a court must “balance individual liberty rights and privacy interests with a societal interest in effective policing.” He went on to say (at paragraph 15): “Absent a law to the contrary, individuals are free to do as they please.

By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law.” [ 32 ] The court went on to describe “detention” as covering a broad range of encounters between police officers and members of the public. But a detention does not include every situation in which a police officer interacts with a member of the public. The Supreme Court stated that the constitutional rights recognized by

section 9 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. [ 33 ] Generally speaking, a search by police of an individual will amount to a detention of that individual. When the detention precedes an actual arrest, the detention may be said to be for investigative purposes. Where an individual is detained for investigative purposes, such detention is subject to Charter scrutiny. [ 34 ] The lawful detention of an individual is not “arbitrary” within the meaning of

section 9 and thus a proper investigative detention will not infringe the detainee’s rights under s. 9 of the Charter . This begs the question of what is a lawful detention. In Mann , the Supreme Court began by recognizing that police powers derive from the nature and scope of police duties, and that these duties include “the preservation of the peace, the prevention of crime, and the protection of life and property”. A balance is required between the competing interests of the police duty and of the liberty interests at stake.

This in turn calls for a consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. [ 35 ] Justice Iacobucci wrote, at paragraph 34 of Mann : The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference…” [ 36 ] To summarize the foregoing: 1. A lawful detention is not an arbitrary detention. 2.

A lawful detention by a police officer must be carried out in pursuance of that police officer’s duty to preserve the peace, to prevent crime, or to protect life or property. 3. Even where the detention is necessary in order for the peace officer to perform his or her duty, it must be reasonable in light of the public purposes served by effective control of unlawful acts on the one hand, while not being a disproportionate interference with the liberty and fundamental dignity of individuals. 4. The officer must possess reasonable grounds to detain the individual.

This means, firstly, that the detention is reasonably necessary on an objective view, taking into account the totality of the circumstances. 5. A consideration of these circumstances must reasonably support the officer’s suspicion that there is a clear connection between the individual to be detained and a recent or on-going offence. 6.

The overall reasonableness of the decision to detain must then be assessed against all of the circumstances, including the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference. Analysis 1. Loss of the Videotape [ 37 ] A judicial stay of proceedings has been described as a very drastic remedy, one to be used sparingly and only in clear circumstances in which no other remedy exists to respond to a violation of a Charter right.

In this case, Counsel for the Accused argues that there is no other remedy available to remedy the breach of the Accused’s right to make full answer and defence. Before getting to that stage, I must first be satisfied that the loss of the video amounts to a breach of the Accused’s rights under

section 7 of the Charter . [ 38 ] As stated earlier, the Supreme Court of Canada, in R. v. La , supra, held that where relevant evidence is under the control of the Crown (or by extension under the control of the investigating police department) there is an obligation to preserve that evidence. When the Crown loses evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If the explanation

satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. The Crown fails to meet its disclosure obligations if it is unable to satisfy the judge of this, in which case s. 7 of the Charter has been breached. [ 39 ] Crown Counsel argues firstly that the video evidence recorded by the mall security company was never “under the control of the Crown”. This is unlike the situation in R. v.

Trembley , supra, where the police officers were aware at an early stage that a video recording existed and where they took steps to preserve the video. Once they did so, the evidence was then considered to be “under the control of the Crown.” In that case they made the mistake of delegating responsibility for preserving the evidence to the hotel staff. Their failure to ensure that this occurred was seen by the trial judge in that case as unacceptable negligence on their part, leading to a finding that the

section 7 rights of the accused in that case had been breached. [ 40 ] The situation in this case is somewhat different. The video in this case was never preserved and therefore never under the control of the Crown. This does not necessarily end the matter because if the Crown had been aware of relevant evidence, it ought to have made reasonable efforts to preserve and disclose that evidence.

The law appears to be somewhat unclear as to what extent the Crown must attempt to secure relevant evidence that is under the control of third parties, although cases such as Trembley suggest that where the police are aware of the presence of video recording, reasonable efforts must be made to secure that video recording. [ 41 ] In R. v. La , supra, Justice Sopinka wrote at paragraph 21 that: “The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure.

One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable.

But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.” [ 42 ] In the present case, a video recording of some portion of the encounter between the Accused and Constable Alton would reasonably be expected to be relevant evidence. The Crown's failure to preserve this video may amount to an abuse of process, notwithstanding that they played no

part in its loss, if the loss arose from an unacceptable degree of negligent conduct on the part of the Crown or police. It is here that I must consider whether or not in this case the failure to preserve the video evidence arose as the result of an unacceptable degree of negligent conduct on the part of the Crown. [ 43 ] In considering this question, I would note firstly, that the third party who controlled the video had the routine of destroying video recordings after fourteen days unless it felt that there was good reason not to do so.

A request was made of the mall within that time frame by the Accused’s wife, but the mall security did not assist with this request. This was done without the knowledge of the Crown and therefore cannot form the basis of any negligent conduct on the part of the Crown. A letter was sent to the Crown requesting that the video be preserved, but this letter is dated March 22 and is stamped as received on March 29. Both of these dates are after the video was destroyed.

There was nothing the Crown could have done at that time and so it could not be fairly said that the Crown’s reaction to the letter of March 22 can form the basis of any unacceptable level of negligence on the part of the Crown. [ 44 ] Finally, there is the consideration that when the Crown was made aware of the possibility of video evidence, they asked Constable Alton to follow up on the matter. Unfortunately, Constable Alton was either off duty or on alternate duties assigned to him as the result of injuries he sustained in his altercation with the Accused.

Crown Counsel makes the submission that there is an absurdity in faulting Constable Alton for not following up on obtaining the video when he was not able to do so because of injuries he received as a consequence of the Accused’s conduct.

Suffice it to say that any failure on the part of Constable Alton to attempt to secure the video during the time that he was injured or on alternate duties should not form the basis of any conclusion that the Crown was unreasonably negligent, especially since Constable Alton would not have been in a position to do so until after the video had been destroyed. [ 45 ] According to the evidence presented at trial, the only request to investigate the possibility of video evidence which was made while such evidence was still in existence occurred when the Accused made his first appearance in court.

At that time, according to his evidence, he asked Crown Counsel to secure the video. This occurred at a time when the investigating officer was off duty because of the injuries he sustained in this matter, and it should also be noted that the Accused was represented by other counsel at the time and that ethical considerations would have required the Crown to communicate with the Accused through counsel. [ 46 ] On the totality of the circumstances, the Crown’s conduct in this case falls short of unacceptable negligence.

Most of the requests to preserve the video were made after it had been destroyed, without the knowledge of the Crown. Those requests that were made for preservation of the video were either made without the knowledge of the Crown, or at a time when the investigating officer was off duty because of injuries sustained in this matter. [ 47 ] The act of being negligent in this context implies the failure to take the action that a responsible Crown counsel might be expected to take. Unacceptable negligence suggests a level of negligence that a reasonable person would view as obvious or offensive.

Here the failure to preserve the video arose out of a combination of circumstances that should not rest blame on any one party. It would not be obvious to anyone that the video recording would exist, or that it would only exist for a brief window of time. The video did not capture the start of the incident and it could not be readily expected that the precise nature of the altercation between the Accused and Constable Alton in the area that was videotaped would be in dispute.

The Accused, in his testimony, acknowledges that he struggled with the Constable in front of the Best Buy store, and it is not immediately obvious as to how, if at all, the video would assist in resolving whether the Accused was arbitrarily detained, though it might certainly aid in sorting out the conflicting versions of the physical struggle between the two. [ 48 ] In the final analysis, before a judicial stay of proceedings can be considered, it must be shown that the loss of the video evidence occurred as the result of unacceptable negligence.

Here the evidence falls well short of establishing this and accordingly the application for a judicial stay is denied.

2. Was the Accused Arbitrarily Detained? [49] If the detention of the Accused by Constable Alton was a lawful one then there has been no arbitrary detention and accordinglyno breach of the Accused’s rights under

section 9 of the Charter. For there to be a lawful detention in this case, I must be satisfied thatConstable Alton sought to detain the Accused for investigative purposes in pursuance of his duty to preserve the peace, to prevent thecommission of an offence, or to protect life or property. [50] In considering this matter, the issue must be determined on a consideration of whether or not such detention was reasonableunder all of the circumstance. The exercise is not one of second guessing Constable Alton, but rather to consider the reasonableness of hisactions under the circumstances.

For the detention to be lawful, it isn’t necessary to show that there were reasonable grounds to believethat an offence was being or had been committed, but rather that there were reasonable grounds for the Constable to investigate whetheror not an office was taking place or had taken place. [51] In his written submissions, Counsel for the Accused states that Constable Alton was acting “on a hunch.” On a review of theConstable’s evidence, this was not what he told the court, and he was clear that his actions in seeking to detain the Accused forinvestigative purposes were based on much more than that.

It was his honest perception and belief that the Accused and his friend wereattempting to conceal their activity, something consistent with the possibility of illegal activity such as drug possession. Whether or notthis was the case, he testified that he perceived the type of lighter being used as one not normally used for cigarette smoking and morecommonly used by drug users because of the requirements of lighting certain controlled substances.

When one of the males quicklyattempted to flee the scene after becoming aware of police presence, this was another factor which supported the reasonable inferencethat the person was doing so because of some illegal activity that he did not want police to know about.

While none of these areindividually or in combination conclusive proof of the commission of an offence, they do at least justify further investigation on the partof a police officer given the duty of preventing the commission of offences. [52] Up to the point where the Accused began to flee from the officer, there was no disproportionate interference with the liberty anddignity of the Accused. When the Accused attempted to run from the officer, this act certainly increased any suspicion or grounds for thebelief that the Accused was doing so in order to avoid detection in the commission of some offence.

Law enforcement does not workvery well if a suspect is given the option of choosing whether or not to participate in an investigative detention. [53] I find that Constable Alton did possess reasonable grounds to detain the Accused and that the detention of the Accused forinvestigative purposes was reasonably necessary on an objective view, taking into account the totality of the circumstances.

Thecircumstances in which Constable Alton testified to finding the Accused and the Accused’s attempts to flee from the scene reasonablysupport the officer’s suspicion that the offence of possession of a controlled substance in a public place was occurring and that there wasa clear connection between the individual to be detained and such offence. This was not something that reasonable members of the publicwould expect a police officer to ignore. Accordingly, I find that the detention of the Accused for investigative purposes in this case wasnot an arbitrary one. 3.

Has the Crown Proven that the Accused Committed Assault of Two Peace Officers? [54] Assault is defined in

section 265 of the Criminal Code, with one of the

definitions including the intentional application of forceagainst another person, to a degree that is more than trifling, without the consent of that person. In this case, if the Crown proves beyonda reasonable doubt, that the Accused punched or threw punches at Constable Alton, as alleged, then such conduct would constitute anassault. [55] The Accused is charged with two counts of assaulting a peace officer engaged in the execution of his duty, contrary to section270 (1) (

a) of the Criminal Code. This requires the Crown to prove the additional elements that the persons assaulted were indeed peaceofficers (something that is not contested in this case) and that they were each in the execution of their duty (something that is in dispute). [56] The test in a criminal trial is not which side I believe, but whether or not the Crown has proven each element of the offencebeyond a reasonable doubt.

I am required to consider whether, on the total body of evidence, viewed as a whole, the Crown has proveneach essential element of the offence beyond a reasonable doubt. [57] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v. D.W., (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit.

Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [58] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Mr Justice Wood gave the followingfurther advice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [59] There are a number of considerations which a court can often apply when determining issues of credibility. Firstly, a court may

consider evidence which pertains to the honesty and forthrightness of the witnesses.

Evidence of character, background or other behaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonest conduct proven, such as false statements made to police in the course of the investigation. [ 60 ] A court may also consider the demeanour and bearing of a witness while that witness gives testimony, although it is often suggested that demeanour is one of the least accurate barometers of credibility. [ 61 ] The credibility of a witness may be assessed by its internal consistency, that is, by the presence or absence of any contradiction within itself.

It may also be assessed by its external consistency, that is, by the presence or absence of any contradiction with the remainder of the evidence. [ 62 ] The first requirement of the test for assessment of credibility calls for a determination of whether or not I accept the evidence of the Accused in which he asserts that he did not assault either of the two police constables. The Accused’s version of an unprovoked attack and of being pushed into the glass in front of the Best Buy store is difficult to accept.

By his own admission, the Accused admits to unreliability in his recollection of the incident and admits to having blank spots in his memory about the entirety of what took place. He also states that when this incident was occurring he was in the midst of a panic attack. In cross-examination, he told Crown Counsel that his blackout began when he was beside the bicycle rack, which would mean that his memory lapse would have begun before he says he was pushed up against the glass in front of the Best Buy store. [ 63 ] There are other difficulties in accepting the Accused’s evidence.

The most troubling is its inconsistency with the evidence of the independent witness Ms. McPhail. While the Accused denies doing anything more than trying to get away from Constable Alton, the independent witness has a clear recollection of seeing the taller of the two men, namely the Accused, punching at the police officer who was the shorter of the two men. [ 64 ] Finally, the Accused’s evidence that he did not know that he was not supposed to be at the Seven Oaks Mall on the alleged offence date is difficult to accept.

He was either deliberately in breach of his court ordered release document, or at the very least wilfully blind about the conditions he was supposed to follow.

Though not conclusive, his flight from a police officer at a time when he was in breach of his recognizance is consistent with the theory of the Crown as to the Accused’s motive for seeking to avoid detention for investigative purposes at the time of the incident. [ 65 ] For these reasons, namely the Accused’s spotty or selective memory of the incident, the inconsistency of his version with that of the independent witness, the concerns about his credibility regarding his breach of recognizance and the lack of an air of reality to the suggestion that Constable Alton would initiate an unprovoked attack on the Accused in a public setting, I am unable to accept the evidence of the Accused, nor do I find that it raises a reasonable doubt, or that it might be true. [ 66 ] I am mindful of the evidence of the Accused’s wife, and find that it does not assist in resolving some of the key issues to be decided.

On the issue of whether or not Constable Alton told the Accused that he was being detained for investigation, Mrs. Gilliland testified that “I heard the cop say a few things, but I don’t recall what he was saying.” She does recall her husband and the officer “dancing back and forth”, supporting the suggestion that the Accused was not submitting to the detention for investigation.

For most of the remainder of the incident, she acknowledges that her attention was on a crying child and not on what was taking place between Constable Alton and her husband. [ 67 ] I must next ask whether on the basis of the evidence I accept, the Crown has proven the Accused’s guilt beyond a reasonable doubt. I have found that Constable Alton possessed reasonable grounds to detain the Accused for the purposes of whether or not the Accused was in possession of a controlled substance.

Under such circumstances, the Accused was obliged to remain and was not justified in assaulting the Constable, nor can his actions be considered to have been in self-defence. I accept the evidence of Constable Alton, corroborated, though not perfectly, by the evidence of Ms. McPhail.

While the evidence of these two witnesses differed in the number of punches that the Accused is said to have thrown at Constable Alton, and whether or not the punches landed, I am satisfied beyond a reasonable doubt on the evidence given that the Accused intentionally applied force towards the Constable to a degree that was not trifling, and did not do so with any lawful justification or in self-defence, but rather to avoid being detained for purposes of investigation.

The Crown has proven all of the elements of the offence on count one and I find the Accused guilty on that count. [ 68 ] On the other count, the evidence satisfies me that the Accused kicked Constable Kingra while the Constable was in the course of lifting the Accused off of the ground. I accept the evidence of Constable Kingra that the kick was deliberate and not accidental and that it meets the definition of an assault under the Criminal Code . The Crown has proven all of the elements of the offence on this count beyond a reasonable doubt and I find the Accused guilty of the offence charged in that count.

Dated at the City of Abbotsford in the Province of British Columbia this 28 th day of September, 2016. __________________________________________ (The Honourable Judge K. D. Skilnick)