R. v. Rowan Date:, 2013 BCPC 320

Citation: R. v. Rowan Date: 20131104 2013 BCPC 0320 File No: 88292-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LORNE GORDON PERRY ROWAN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE JUDGE DE COUTO Counsel for the Crown: L. Berman Appearing as Agent for G.J. Harris, Q.C. Counsel for the Accused: A. Sidhu Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: March 18, 19, April 15, 16 and 17,

September 19, 20, October 18, 2013 Date of Judgment: November 4, 2013 [ 1 ] THE COURT : The accused, Lorne Gordon Perry Rowan, is a senior Correctional Officer in a supervisory position at the North Fraser Pre-trial Centre in Coquitlam, B.C. who is charged that he, on or about December 10th, 2010, in committing an assault upon Michael Jason Stephen Lee Reid, caused him bodily harm, contrary to s. 267 (

b) of the Criminal Code of Canada . At that time, Mr. Lee-Reid was an inmate at the Pre-trial Centre. [ 2 ] The trial which commenced on March 16th, 2013 was held over several days, some of which were separated in time. At the conclusion of the hearing of evidence, Ms. Berman, Crown counsel, advised the Court that the Crown was proceeding on the included offence of assault simpliciter and not on the charge as set out in the Information. [ 3 ] By way of background, inmate Michael Lee-Reid was admitted to the Pre-trial Centre and assigned to C-Pod at around 8:00 p.m.

On arrival at the unit, he was provided with a frozen meal which he intended on heating up. After taking a shower, he went to the microwave oven in the kitchen area of his living unit for that purpose. The evening lockdown was announced over the public address system as Mr. Lee-Reid reached the oven, but before he was able to heat his dinner. [ 4 ] The lockdown call required all the inmates to return to their cells. Mr. Lee-Reid ignored the call and remained by the microwave oven. Correctional Officer (C.O.) Saint Hill approached him and directed him to return to his cell.

Lee-Reid refused and insisted on heating up his meal. A verbal confrontation ensued following which C.O. Saint Hill called on his radio for the attendance of a supervisor. [ 5 ] Correctional Officer Patel responded to the call and with another Correctional Officer, grabbed Lee-Reid and got him down to the floor. It was a hard takedown and in the ensuing struggle, Lee-Reid ended up face down straddling the doorway into the adjacent program room with the upper half of his body in the room and the lower half in the general living area. [ 6 ] As this took place, a number of other Corrections Officers joined C.O.

Patel and pounced on Lee-Reid's back. The resulting situation was in my view aptly described as a dog pile of bodies on top of Mr. Lee-Reid. [ 7 ] The accused, on entering the room from another location, joined the fray and after momentarily placing himself by Lee-Reid's foot or leg area, scrambled over the backs of his fellow officers and went into the program room.

Within a very brief period of time, he administered a number of kicks towards Lee-Reid. [ 8 ] The Crown's position is that the administering of these kicks by the accused in the circumstances constituted the use of excessive force that resulted in the offence of assault being committed upon Lee-Reid. [ 9 ] The issue accordingly is whether Correctional Supervisor Rowan was justified in his actions at the time or whether the force used was excessive.

If it is found to be excessive, it would be unlawful. [ 10 ] The statutory authority that permits the use of force by peace officers, including Corrections Officers, in the execution of their duty is set out in s. 12 of the Correction Act , S.B.C. 2004, c. 46 of this Province and ss. 25 and 26 of the Criminal Code of Canada , R.S.C. 1985, c.

C-46. [ 11 ] Section 12(1) of the Correction Act provides that officers and employees appointed under the Act "may use a reasonable degree and means of force for any of the following purposes" and proceeds to list four situations including that set out under subsection (d) "the need to maintain custody and control of an inmate". [ 12 ] The relevant provisions of the Criminal Code are as follows: 25.

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

a) as a private person, (

b) as a peace officer or public officer, (

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

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. 26. Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess. [ 13 ] The actions of Mr. Rowan must accordingly be examined in the context of the above provisions in determining whether the kicks were excessive.

That determination also necessitates a closer examination of the evidence and in particular as to the circumstances that existed at the time the kicks were administered. [ 14 ] Such an analysis must necessarily start with a close look at the conduct of inmate Lee-Reid which precipitated the altercation.

[ 15 ] He testified that he had intended to put his food in the microwave oven to heat it up when the five minutes to lockup call was announced. He was approached by the Unit Officer who was Correctional Officer Saint Hill and was told he could not heat his meal as it was lockup time. Mr. Lee-Reid replied by mouthing off to the Officer telling him to "Go fuck yourself" or words to that effect.

He said he was irritated at the time and while he did not recall raising his voice, told the Court that he had a fairly loud voice. [ 16 ] He heard something over the public address system and then saw a door open and several guards approach him. His description of what transpired next was that he was tackled hard to the floor and was dog piled. He said everything happened very quickly and it was very chaotic. The guards were on top of him and beating him. He felt his face get hit repeatedly and he had his hands up to protect his face. He was pepper sprayed, but he could not say if one or two cans had been used.

He said it felt there were four to six officers on top of him. He told them he could not breathe and asked them to stop hitting him but he also heard them say to him at some point, "Quit resisting". [ 17 ] According to him, he eventually gave them his arms and the guards stopped hitting his face when he did so. His arms were placed behind his back and he was handcuffed and taken to the infirmary. He had suffered a cut above his right eye during the incident which required stitches but he said he had no idea as to how it happened. Mr.

Lee-Reid denied struggling with the Correctional Officers or resisting them at any time. [ 18 ] The whole of the incident from the beginning until the end when Lee-Reid was led away was captured on video by three surveillance cameras, each of which was installed at a different location within the unit. It provided a view of the incident as it took place from different angles. A downloaded copy of the video from all three cameras was produced and entered as an Exhibit in these proceedings and shown in court a number of times. [ 19 ] The Correctional Officer who had the initial contact with the inmate, C.O.

Saint Hill, testified that when Lee-Reid failed to follow his directions and insisted on heating up his meal, he concluded he had a non-compliant inmate on his hands. Although he was not concerned for his safety at the time, he followed the protocol set up for such situations and radioed for a supervisor to attend. He then stood back as other Corrections Officers responded to his call. [ 20 ] C.O. Patel who was working that shift as a "Prowl Officer" or "Rover" and who was there to provide assistance to any Corrections Officers who might need help, was the first to respond followed by C.O. Sandhu. [ 21 ] C.O.

Saint Hill did not tell them the reason for the call but saw them approach the inmate and place their hands on him. A struggle ensued and Lee-Reid was taken to the ground. Other officers joined in and pounced on top of the inmate. [ 22 ] Saint Hill, who did not engage in the struggle, testified that in the latter part of the incident he heard the words "Stop resisting" uttered a number of times. [ 23 ] Correctional Officer Patel testified that when he heard the call over the radio that a supervisor was required, he went to check if he could assist.

He saw an inmate standing by the microwave oven in dialogue with C.O. Saint Hill. He went over, and as it was lockup time, told the inmate he needed to lock up. The inmate swore and insisted on having a warm meal. At this time, the Officer directed the inmate towards his cell. He described the inmate Lee-Reid as being "very angry" and turning his body around towards him very quickly with a closed fist. [ 24 ] C.O. Patel testified he grabbed the inmate's wrist to control the arm but had difficulty as he described Lee-Reid as being bigger than him.

He then tried to grab his arm to pull it down and gain control but said the inmate put up a fight and was not cooperating so he had to forcefully grab the arm. Lee-Reid continued to struggle and C.O. Sandhu came to his assistance. The two of them managed to pull Lee-Reid down to the floor and they ended up in the doorway into the adjacent program room. [ 25 ] According to Patel, Lee-Reid was lying on his stomach with his arms under his body. He refused directions to bring them out so they could be handcuffed and the two Officers tried to forcefully get them out several times but without success.

He described the inmate as actively resisting them. He also pinched the inmate's bicep a number of times as a technique he learned to gain compliance but his efforts had no effect. He testified he was aware there were other officers around him but as he was focussed on his own actions, he was unable to say what the others were doing.

He said he did not observe Correctional Supervisor Rowan's movements during this time. [ 26 ] Clayton Smith is a Corrections Officer who was on shift that evening as a "Responder" or "Runner" which he described as someone who provides assistance where needed. [ 27 ] He testified he heard a call for staff assistance for one of the units in C-Pod and went to help. On his arrival, he saw an inmate lying on his stomach on the ground with the upper part of his body in the program room and his lower half in the common room.

He was struggling with a number of staff who were trying to get his hands out from under him. [ 28 ] Corrections Officer Smith proceeded to take out his handcuffs and heard a number of the officers who were on top of the inmate yelling orders at him, telling him what to do including telling him to put his arms behind his back. The inmate was actively resisting, swearing, and telling the officers to get off him.

"Wiggling" was the term the witness used in describing the inmate's actions. [ 29 ] The Officer eventually managed to place his handcuffs on Lee-Reid and testified that the inmate continued to struggle even as he was being escorted down the hall with a towel draped over his head. [ 30 ] In cross-examination he described Lee-Reid as being very strong and aggressive.

He recalled someone had deployed pepper spray which did not seem to have any effect on the inmate as his resistance continued. [ 31 ] Gordon Lee was the Acting Supervisor of that Pod at the time and was in the supervisor's room with two other supervisors, Mr. Rowan and Deborah Grille (phonetic), when they received a radio call from Saint Hill for a supervisor to attend. [ 32 ] The three of them left their office located approximately 100 feet down a hallway from the common room where C.O. Saint Hill

was working. [ 33 ] Correctional Officer Lee testified that Correctional Supervisor Rowan sprinted ahead of him and arrived at the scene first. On his arrival, Lee saw Lee-Reid in the doorway into the program room with four to five staff on top of him having great difficulty in trying to restrain him. He also smelled pepper spray in the air.

Although he was unable to see what the inmate was doing as there were too many staff members in the way, he saw the inmate moving his legs as one of the officers unsuccessfully tried to grab one of them in an attempt to gain control. [ 34 ] At one point he was also able to see that Mr. Rowan had managed to get into the program room and saw him making some kicking motions. He described the kicking motions as being short and direct. He eventually saw the inmate restrained and raised to his feet. Mr.

Lee testified that after the inmate was restrained, he became less resistant and was more cooperative. [ 35 ] Deborah Grille, the other supervisor, testified that the Pre-trial Centre is made up of three Pods: A, B, and C, each of which contains four living units. There is a supervisor for each Pod and there are six staff members assigned to each Pod. There is one Correctional Officer for each living unit and the remaining two staff act as "Floaters". [ 36 ] On December 10th, 2010, Ms. Grille was the supervising Correctional Officer for A-Pod.

She was in the supervisor's office with two other supervisors when there was a call over the radio asking for a supervisor to attend one of the units in C-Pod. [ 37 ] She told the Court that when she arrived at the unit in response to the call, she saw a group of officers in the doorway with an inmate straddling the program room and the adjacent living unit. She described the scene as being very loud and chaotic with a lot of the officers yelling at the inmate to stop resisting. [ 38 ] Although she was unable to see the inmate, she was able to see his legs. She saw Mr.

Rowan in the program room making kicking motions and called out to him so he would stop kicking and she testified that he did. [ 39 ] She testified that once the inmate was restrained, he was removed from the doorway. She also noted that despite being handcuffed and restrained, the inmate kept making verbal remarks but she did not consider him to be non-compliant at that time. [ 40 ] In addition to the above witnesses, the Crown also called a use of force expert as did Mr.

Harris, counsel for the accused, who testified in his own defence. [ 41 ] Before reviewing the evidence of the experts, I propose to review Correctional Supervisor Rowan's testimony. [ 42 ] Mr. Rowan testified he joined the B.C. Corrections Service on April 6th, 1992 when he was 29 years old. He is currently 51 years old, 5 feet, 8 inches, and 180 pounds, and went to work at the North Fraser Pre-trial Centre when it opened in March, 2001. [ 43 ] Like all other Correctional Officers he took a six-week Use of Force training course in his earlier years as a Corrections Officer.

In addition, he took the mandatory upgrade training from time to time and also trained to be part of the Emergency Response Team. He was a member of that Team for approximately ten years starting in 1997. He became a supervisor in February 2008. [ 44 ] On the day in question, he was in the supervisor's office with his two fellow supervisors, Gordon Lee and Deborah Grille, when there was a radio call from Saint Hill requesting attendance in the east wing of C-Pod. [ 45 ] He described Saint Hill's voice over the radio as sounding elevated and stressed.

He, as well as Lee and Grille, responded and went to the unit. [ 46 ] He told the Court that when he arrived he saw officers involved in a physical altercation in the doorway between the living unit and the program room. He did not see what happened or how it started. His first thought on seeing what was taking place was that the inmate was not under control and that control had to be effected right away and the inmate placed in restraints. [ 47 ] He noted that one of the inmate's legs was free so he grabbed it out of concern that one of the officers could get kicked.

He managed to grab the free leg and hold it around the ankle. He said the inmate was struggling a lot at this time and that his leg was very tense. [ 48 ] During this time, officers were issuing different orders such as directing him to stop resisting, to give the officers his arm, to put his hands behind his back. As this was going on, the inmate was also uttering profanities and threats such as "Fuck you guys" and the like. Mr. Rowan described the inmate as "combative". [ 49 ] Faced with this situation, he testified that he decided to reposition himself based on what he had seen and on his training.

He went over the top of his fellow officers and into the adjacent program room. He noted the inmate's left arm was momentarily free and stretched out beside him. He was concerned that it posed a threat to his colleagues and grabbed his can of pepper spray to deploy it. However, he noted that one had already been deployed without any apparent effect on the inmate. He put the can away and took hold of Mr. Lee-Reid's forearm. He realized he was not in a position of strength to take control of it and place it behind his back as he was in a half-crouched position.

He was unable to get the arm behind the inmate's back. [ 50 ] He stood up to assess the situation and look for another solution. He decided to apply some form of a stunning force to a large muscle as a means to gain control of the inmate who he considered to be actively resisting. [ 51 ] C.S. Rowan testified that he administered three moderate kicks to the biceps area of Lee-Reid's left arm and elbow area with the aim of stunning a major muscle. It was done with the hope of providing him and his colleagues enough time to regain control of the situation.

He thought this would be an effective technique to utilize in the circumstances. [ 52 ] When his first three kicks had no effect, he administered three more to the same area and in the same manner. He then stood up

and backed away as it appeared the kicks had effected their purpose as shortly thereafter the inmate was able to be placed in restraints. Mr. Rowan testified that the inmate continued to be actively resistant, even after he had been handcuffed. [ 53 ] He told the Court that the situation he came upon was not of his making but created by others. He described the situation as being very fluid, very dynamic, chaotic and confusing. [ 54 ] In his cross-examination he reviewed some of his training and his experience in dealing with combative or non-compliant inmates.

He received training in a number of different techniques to stun various muscle groups to gain compliance including kicking. The training however did not extend to the use of kicking to stun an inmate who was lying prone on the ground. In fact, he was never trained for such a situation. He also did not recall ever having to kick an inmate other than Lee-Reid, but had also never come across a situation previously involving a resisting inmate lying prone on the floor in a doorway between two rooms with a number of officers on top of him. [ 55 ] Mr.

Rowan testified he was satisfied that what he did was effective as it accomplished what it was intended to do, that is, to bring the situation under control and restrain the inmate as quickly as possible. [ 56 ] As mentioned above, two use of force experts were called, one by the Crown, Mr. Angelo Gabriel, and the other by Mr. Harris, Sergeant Harris from the Vancouver Police Department. [ 57 ] Their opinions were polar opposites in that Mr.

Gabriel concluded that the accused had engaged in an excessive use of force in his actions towards the inmate while Sergeant Harris concluded he did not. [ 58 ] Both refer to the use of force framework model used in training peace officers including Corrections Officers in applying appropriate or justifiable force in response to the degree and nature of the threat being addressed. [ 59 ] While there is a slight difference between the model used by the police and that used by Corrections in use of force training, they are essentially the same as to their descriptions of the targeted behaviour and the corresponding use of force response. [ 60 ] The guide is in the form of a circular schematic diagram containing a number of concentric circles but has at its core the precipitating situation or event.

The next circle reflects the range of behavioural or physical states of the individual causing the situation. It flows from one of being "cooperative" through a stage of "passively resistant" into a stage of being "actively resistant" and then into a stage of "assaultive behaviour" finally ending with "grievous bodily harm or death". [ 61 ] This is followed in the schematic by an outer circle reflecting the type of justifiable force to be applied, depending on where in that circle just described the individual fits.

The application of force is fluid and ranges from mere "officer presence" where the individual is in a cooperative state to one involving "communication" in circumstances where the officer is met with passive resistance. It then flows into "soft use of force" through "physical control" and escalates towards "the hard use of force" in situations where the individual is actively resistant or assaultive in his behaviour. Lethal force by an officer is justified when facing a situation where there is a real threat of grievous bodily harm or death. [ 62 ] Mr.

Gabriel is an Assistant Deputy Warden at the North Fraser Pre-trial Centre who has been seconded to the Justice Institute for six years as an instructor in use of force techniques. [ 63 ] He received his first use of force training in 1987 at the Justice Institute which was a week long program. Between 1999 and 2005, he was a member of the Emergency Tactical Team. He is currently a Provincial Corrections Force Options Coordinator auditing and evaluating current provincial use of force training and the B.C.

Corrections Branch Provincial Crisis Management Coordinator. [ 64 ] He testified that he was present in court and heard the evidence of some of the trial witnesses and also read a synopsis of their statements as provided to him by the investigating officer, read the transcript of the evidence of some of the Corrections Officers, and also viewed the various video surveillance clips of the incident a number of times. He did not interview or speak to the accused. [ 65 ] Based on applying the above model to the circumstances as he knew them to be at the time C.S.

Rowan administered the kicks, he concluded that use of force by him against Mr. Lee-Reid was excessive. [ 66 ] He testified that the role of the supervisor was to provide supervision and not to get physically involved in an incident. According to him, the supervisor's responsibility was to provide oversight in such circumstances and to engage in communication with the officers by just tapping their shoulder in this instance to get their attention so as to transition into the communications mode as a first step in the effort to regain control of the situation. [ 67 ] Mr.

Gabriel said that from what he had seen, there did not appear to have been any urgency in resolving the situation, that the risk to the officers by the inmate seemed to be very minimal, that there was a real risk to the inmate of asphyxiation by the officers who were on top of him if they remained in that position, and suggested that the officers could have moved the inmate to another area which in his opinion would have been "absolutely helpful" in their situation. [ 68 ] In his view, the officers involved were too focussed and goal-oriented and failed to take time to think it out when there was time to de-escalate the confrontation.

From his perspective, Mr. Lee-Reid remained in a passive-active role, did not have any weapons, did not have the ability or the means to cause much harm to anyone, was not assaultive, and was controlled while on the ground. [ 69 ] In his opinion, the kicks administered by Mr. Rowan were close to the head area and he said that while it was unclear where they landed, he was of the view that the risk of serious injury existed.

He also considered the number of kicks – six – to be excessive and stated that the kicks were not proportional to the risk at hand as in his view the inmate at the time was defenceless. [ 70 ] According to him, the situation was mishandled from the start. He told the Court that the first officers who responded to the call should have spent more time and effort in the communication dialogue mode with the inmate before resorting to force. His opinion

was that there was a breakdown from the start which precipitated into a chaotic scene. The inmate was in a very restricted area such that it would have been very difficult to put restraints on him and in those circumstances he said the first consideration should have been to try to control the situation. [ 71 ] He testified that the video clip showing the accused's actions show that on entering the room he briefly went to the inmate's leg area and then proceeded into the program room. From what he saw, he said that it seemed to him that Mr.

Rowan tried to get the inmate's arm out and it looked to him like he had succeeded. [ 72 ] He then said that it looked to him like after the manoeuvre the officer deployed kicks resulting in the inmate trying to put his arm back in towards his body. When asked if kicks were an accepted use of force technique, he replied that the "angle kick" was an offensive manoeuvre used when an officer was in close proximity and needed to create sufficient space for safety.

He said it is usually used when an inmate is standing and never when the inmate is on the ground and is not used as a technique to momentarily stun an inmate. [ 73 ] His conclusion was that even if the kicks were not close to the head of the inmate and even if it resulted in the inmate getting successfully restrained, the force deployed was excessive. [ 74 ] As noted earlier, Sergeant Harris arrived at the opposite conclusion. [ 75 ] He had been with the Vancouver Police Department since 1991 and has been involved for over a decade as an instructor in various use of force options training for the Vancouver Police Department.

He currently works part-time teaching use of force and safety programs in the private sector and has given presentations on use of force techniques in the past. [ 76 ] He testified that in preparing his report he reviewed the video surveillance clips a number of times and reviewed them at slower speeds. In doing so, he was able to see things that were missed when the video was played at regular speed.

He also reviewed transcripts of the cross-examination of the Corrections Officers who had testified and also had a short personal interview with the accused. [ 77 ] It would seem to me that he was engaged in a more comprehensive review of the material in arriving at his opinion than did Mr. Gabriel. [ 78 ] In his opinion, C.O. Saint Hill was within his authority to refuse to allow inmate Lee-Reid to heat his food in the microwave and to direct him to return to his cell when lockdown was called.

When the inmate refused to comply he failed to obey a lawful direction which was exacerbated when he insisted that he was not returning to his cell until he had heated up his meal. [ 79 ] According to the Sergeant, the interaction between C.O. Saint Hill and the inmate was appropriate.

He described it as officer presence and communication. [ 80 ] He also stated that the actions of the first officers who responded, Correctional Officers Patel and Sandhu, were also appropriate as they utilized approved techniques in addressing an inmate who had transitioned from passive to active resistance by moving towards one of the officers. [ 81 ] Similarly, he did not view the actions of the officers who followed and piled themselves on top of the inmate in an effort to subdue and restrain him as inappropriate, particularly as the inmate continued to be actively resistant to their efforts and directions. [ 82 ] He proceeded to explain that only basic techniques were taught in training.

Like Mr. Gabriel, Sergeant Harris also stated that he was not aware of any training covering a situation of restraining someone lying prone on his stomach in a doorway and actively resisting. [ 83 ] It was his expectation that officers would be adaptable and would improvise according to the circumstances they were presented with in every day real life situations.

He emphasized that the use of force options model used in training was only a guide and was never meant to be a comprehensive model to cover all situations that an officer might encounter in his everyday operations. [ 84 ] Regarding the actions of Correctional Supervisor Rowan, he described them relative to what was occurring at the time as Mr. Rowan perceived them to be based on the video clips and on the accused's testimony. [ 85 ] In his opinion, the perception of the officer was important when assessing that officer's actions at the time. He said that when Mr.

Rowan entered the living unit area the inmate was on the ground, lying in the doorway between the living unit and the program room. As he entered, he took a quick look and then attended to the inmate's right leg which was free. He did so to hold it, thereby employing a "soft empty hand technique". He then released it when another officer took over and transitioned by looking over and going into the program room. [ 86 ] Based on what he saw on the video clips and heard in court, Sergeant Harris said Mr. Rowan began to work in trying to get the inmate's arm with the goal of trying to restrain a resisting subject.

He also added that there was an additional concern as a free arm had the potential to cause injury to an officer. [ 87 ] He said that when the officer was unable to gain control of the arm, he considered deploying pepper spray, but that it appeared to him that C.S. Rowan decided against it and put the can down as one had apparently been deployed earlier without any noticeable effect. [ 88 ] Sergeant Harris testified that after these techniques were tried or considered and found wanting, C.S. Rowan then transitioned to the use of hard force through the use of kicks. His observation was that Mr.

Rowan stood up and delivered three kicks to the arm and biceps area. A still photo made from the video clip of that moment showed what appeared to be an extended arm. According to him, when nothing happened he delivered three further kicks.

[ 89 ] Sergeant Harris described these as moderate kicks delivered from a standing position to a localized area, completely unlike the kind of field goal kick made by a football player. He also opined as there did not appear to be any bruising to the inmate's left arm, he did not think that there was much force behind the kicks. He explained that the purpose of such a kick would be to stun a nerve sufficiently so as to gain control of that area, which in this case would be to enable the arm to be controlled much more easily.

It was his opinion that this was an acceptable technique to effect such a purpose in the circumstances. [ 90 ] In concluding that it was his view that C.S. Rowan did not use excessive force, Sergeant Harris stated that it was his observation that each time Mr. Rowan tried a technique and found that it did not work he tried another technique until he eventually applied one that was effective. It was shortly after the kicks were administered that the situation was resolved and Mr. Lee-Reid successfully restrained and handcuffed. [ 91 ] Following the conclusion of the evidence, Mr.

Harris, counsel for Correctional Supervisor Rowan, submitted that in determining whether his client used excessive force it was important to bear in mind that the incident was started and precipitated by others before his client's arrival and that what occurred prior to his attendance should not be attributed to him. [ 92 ] He emphasized that it was important to remember that C.S. Rowan came upon the event well after it had started, and that his involvement commenced when the inmate was already lying in the doorway with a number of Corrections Officers on top of him.

At that moment, the inmate was still struggling. A can of pepper spray had been deployed with no apparent effect and a number of officers were yelling orders. [ 93 ] It appeared that the officers were each doing their own thing with no apparent coordination among them to address the situation cohesively in a joint unified effort. Rather, the scene was presented as being dynamic, confusing, and chaotic.

The officers were struggling to control and restrain an inmate who was described as extremely strong, highly resistant, combative, and kicking. [ 94 ] In arguing his position that the kicks placed by his client was an accepted technique and used appropriately by Mr. Rowan in the circumstances he faced, Mr. Harris urged the Court to accept the opinion of Sergeant Harris who had testified to that effect. [ 95 ] He submitted that it was also consistent with the testimony of one of the other supervisors who had been called by the Crown as a witness in the trial.

He referred to the testimony of Correctional Supervisor Deborah Grille in her direct examination on April 15th, 2013. [ 96 ] Her testimony in direct examination as set out in the transcript of proceedings of that date at p. 6, line 35 and following is as follows: Q Ms. Grille, back to this kicking motion. I'm going to ask you if kicking is a use of force technique that you were trained to use. A Yes. Q And what kind of kicks were you trained to do? A Just kicks for a diversionary sort of tactic. Q In what type of situation would you – were you trained to use a kick? A For instances of non-compliance.

Q Now, were you trained to kick when an inmate was in a certain position or on any occasion? Could you be more specific about the training that you received with respect to kicking? A It was a long time ago. It's basically used as a diversionary tactic when other tactics have failed. Q And so in your training – let me actually first backtrack and ask you what kind of training do you receive as a Correctional Officer? A Well, I received training at the Justice Institute of B.C. and over the years have a bit of training – a bit of updated training. Q How long was that initial training at the Justice Institute?

A At that time I believe it was maybe six or eight weeks. Q And would it have been in that initial training that you were taught to use kicking as a use of force technique? A Yes. [ 97 ] At the time of giving her evidence, Ms. Grille had been with Corrections B.C. for approximately 18 years, eight of which were at the North Fraser Pre-trial Centre and had been in a supervising position for approximately five and a half years. Clearly, she is an officer with considerable experience and I have no reason to doubt her testimony. [ 98 ] Mr.

Harris submitted that when the kicks were considered in the above context, considering that they were not random but purposeful, that they were administered to gain control of the inmate's arm so that he could be restrained, that the officer established that they were directed at the inmate's bicep and shoulder area rather than the facial area, and bearing in mind that they accomplished what they were intended to do, and in light of the fact that it was an accepted use of force technique, the actions of C.S. Rowan could not be considered to be an excessive use of force in the circumstances.

[99] Ms. Berman for the Crown argued that the evidence supported the opinion of Mr. Gabriel, the use of force expert called by theCrown. [100] She submitted that C.S. Rowan's use of force in kicking Mr. Lee-Reid multiple times was excessive and that the force he usedwas not proportional to the risks involved considering that the confrontation initially started as a verbal argument between C.O. SaintHill and Lee-Reid. The call made by Saint Hill was for a supervisor's attendance and was not one of an emergency nature and all theother inmates had returned to their cells. [101] She referred to C.O.

Saint Hill's testimony that he was not concerned for his safety at the time. She also referred to the evidencethat inmate Lee-Reid had his arms under him with his hands covering his face during the altercation and that he was unable to movebecause of the weight of the officers who were on top of him. She pointed out that C.S. Gordon Lee testified that after he washandcuffed, Mr. Lee-Reid did not appear to be resistant and appeared to be more cooperative and that C.S. Deborah Grille describes himat that time as not being non-compliant although he continued to make verbal remarks. [102] Ms.

Berman also submitted that another factor to consider in determining whether the force used was excessive was to bear inmind the testimony of the expert witnesses and the supervisors as to the duties and responsibilities of a supervisor in such a situation. She submitted the evidence indicated that it was not for the supervisor to get involved in the altercation but rather to step back, superviseand give direction, which she submitted the accused failed to do in this case. [103] She argued that when all these factors were looked at objectively, there was no objective basis for C.S.

Rowan to get involved inthe altercation although he may have had subjective grounds and that as a result his actions were excessive. She also submitted therewas a significant risk factor involved given the confined space in which the kicks were administered as there was potential that the kickscould have struck the inmate's face, resulting in injury. [104] Ms. Berman referred to the decision of Wood P.C.J. in R. v. Pompeo, [2013] B.C.J.

No. 306, 2013 BCPC 30, in support of herposition. [105] In that case, after reviewing a number of authorities on the justifiable use of force by peace officers as permitted under s. 25 ofthe Criminal Code, Wood P.C.J., a very experienced jurist, summarized the test to be applied as requiring two elements. [106] While that case involved the use of lethal force, in my view the test to be applied is the same in this case: 1. A subjective belief that such force was necessary in the circumstances to "maintain custody and control of the inmate"; and 2.

That the subjective belief was objectively reasonable. [107] With respect to the first arm of the test, that is, the existence of a subjective belief, I am satisfied on the evidence that C.S.Rowan had such a belief at the material time based particularly on his testimony in explaining his actions and in light of the fact there isnothing in the evidence to conclude otherwise. There is no evidence of any other motive on his part. [108] The real issue accordingly is whether that subjective belief was objectively reasonable. [109] In deciding whether Mr.

Rowan's belief was based on reasonable grounds, it seems to me that the underlying principles thatgovern the application of the test as referred to in Pompeo, supra, must be considered. As noted by Wood P.C.J. in para. 197 of hisdecision: [197] ...

When undertaking that analysis, I must have regard for and give effect to those authorities that have cautioned against applyinga standard of reasonableness that is either too narrow or too rigid. [110] The nature of that analysis was described by him earlier in that paragraph when he stated that the reasonableness of thatsubjective belief must be tested against (1) the officer's training; (2) his experience; (3) his perception of the subject's actions – in thiscase that of Lee-Reid's; and (4) the context in which those actions were unfolding.

He then proceeded to refer to a number of authoritiesin explaining his reasoning. [111] While those cases were concerned with the application of some form of force by police officers, in my view the analysis andresulting principles are also applicable to other peace officers, including Corrections Officers engaged in the execution of their duty. [112] In paras. 198 and following Judge Wood referred to a number of early authorities in illustrating his point: [198] Thus, for example, in R. v.

Asante-Mensah, 2003 SCC 38 , [2003] 2 S.C.R. 3, Binnie J. for the Court noted at para. 73: A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigentcircumstances. (emphasis added) [199] One of the authorities referred to by Binnie J. in support of that statement is the 1979 decision of Hinds, Co.Ct.J. (as he then was)in Besse v. Thom (1979), (BC SC), 96 D.L.R. (3d) 657 (B.C. Co.

Ct.), where at p. 667 the following appears: Society is entitled to expect that police officers shall carry out their duties, particularly those duties which involve the curtailment of theliberties of a citizen with care, caution and concern. They should not over-react; they should not take unreasonable offence at offensivecomments. They should act with moderation and responsibility. On the other hand, it is well recognized that police officers have difficultand unenviable duties to perform in modern society.

They should not be criticized unduly for making immediate decisions in the courseof duty which, when analysed with exquisite precision after the event, may not be demonstrated to have been the most appropriatedecisions to have made. Generally speaking, police officers are deserving of sympathetic consideration of the problems with which theyare confronted in the performance of their arduous duties. (emphasis added)

[200] Referring to s. 25(1) of the Criminal Code, in Crampton v. Walton (2005), 2005 ABCA 81 , 194 C.C.C. (3d) 207(ABCA), Fruman J.A. noted at para. 22: Essentially, s. 25(1) is a safe harbour from liability for those who are required to enforce the law. The police are often placed insituations in which they must make difficult decisions quickly, and are to be afforded some latitude for the choices they make. See R. v.Asante-Mensah, .... Courts recognize that law enforcement is dangerous; no one wants police officers to compromise their safety.

On theother hand, s. 25(1) is not an absolute waiver of liability, permitting officers to act in any manner they see fit: Chartier, [2001] O.J. No.634, at para. 64. The police are entitled to be wrong, but they must act reasonably. (emphasis added) [201] In Bolianatz v. Edmonton (City) Police Service, 2002 ABQB 284 , [2002] 7 W.W.R. 718, (ASQB), Bensler J. noted atpara 36: If force is justified, an officer is not expected to measure carefully the exact amount of force the situation requires: R. v. Bottrell (1981), (BC CA), 60 C.C.C. (2d) 211 at 218 (BCCA). As explained by Bernstein J. in Levesque v.

Zanibbi, [1992] O.J. No.512 at 4 (Gen. Div.): It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which mightsuccessfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified andexempt from liability in these situations if they use no more force than is necessary having regard to their reasonably held assessment ofthe circumstances and dangers in which they find themselves.

Therefore, in undertaking an assessment of an officer's use of force, while one must determine whether it was objectively reasonable, thatdetermination must be made on the basis of the situation in which the officer found him or herself. As stated in Chartier v. Greaves,supra at para. 64: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening ofAugust 14th.

It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious littletime to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (emphasis added) [113] That last observation in my view is of significant importance in determining the objective reasonableness of C.S. Rowan'sconduct. It is thus the context within which he administered the kicks that must be considered together with the three other factors listedby Wood P.C.J. [114] What was that context?

What were the circumstances that existed at the time the force was used? [115] In my view, the events that occurred prior to Mr. Rowan's arrival on the scene are of little consequence in addressing thatquestion, especially in view of the fact that, as was pointed out by counsel, none of it was of his doing. [116] It seems to me the fact that C.O. Saint Hill never explained the reason behind his call for a supervisor to any of the officers whoresponded is also a factor for consideration. [117] From a review of the evidence, I find the following to be the situation that faced Mr.

Rowan when he arrived and thenproceeded to respond to it in the way he did: • An inmate was on the ground with a number of Corrections Officers on top of him who were engaged in a struggle with theinmate in an effort to gain control of him. • The inmate was swearing, actively struggling and resisting their efforts. • The officers were individually issuing different and conflicting orders to the inmate such as directing him to stop resisting, to givethem his arm, to put his arms behind his back.

There was thus a lack of clear direction and lack of a coordinated cohesive effort on thepart of the officers to resolve the situation. • The inmate was not responsive to their directions. • A can of pepper spray had been deployed to the inmate's face area but had no effect. • The altercation was occurring in a crowded, confined area, that is, a doorway, that created its own problems with respect to ease ofmobility and the ease of the officers and their efforts at gaining control. • The officers, despite all of their efforts, were not succeeding in gaining control of the inmate. • The inmate was a physically strong individual. • The environment was noisy and the situation was confusing, chaotic and dynamic. [118] Those were the circumstances that existed when Mr.

Rowan came upon the scene and subsequently engaged himself in thealtercation. He testified that based on what he saw, he concluded that the inmate was not under control despite the large number ofCorrectional Officers who were present and it was important to regain control and place the inmate in restraints. [119] It seems to me that his assessment -- and by that I am referring to Mr. Rowan -- is consistent with the observations of theCrown's expert, Mr.

Gabriel, who testified as noted above that the inmate was in a very restricted area such that it would have been verydifficult to put restraints on him and that in those circumstances the first consideration should have been to try to control the situation. [120] It seems to me that is what Correctional Supervisor Rowan did. His next step was to determine how he was going to effect that

result. In considering the appropriateness of his actions, the description of what he faced as provided by Sergeant Harris in his report at p. 8 offers in my view some insight. He wrote: In real world situations such as the incident with Lee-Reid in North Fraser Pre-trial Centre the floors and walls are concrete and there are many objects such as a dust bin or a chair which can cause injury. A violent inmate does not adhere to rules and Corrections Officers must get control of this violent subject using only as much as force as is necessary.

It is impossible for use of force instructors to teach Corrections Officers how to respond to every possible combination of location, situation, and subject behaviour, size, et cetera. Therefore, Corrections Officers are provided a very basic number of techniques and descriptions for how they are used with their potential outcomes. They are expected to adapt and improvise these techniques to each situation they face and to overcome all adversity. It should be noted that there was in fact a dust bin nearby as seen by the actions of C.S.

Rowan on video kicking it aside following the conclusion of the altercation. [ 121 ] It was Mr. Gabriel's opinion that C.S. Rowan exercised poor judgment and used excessive force in the circumstances described above. He suggested there were other options available that Mr. Rowan should have taken such as communicating with the Correctional Officers. He suggested that Mr.

Rowan could have perhaps tapped the shoulders of those officers who were on top of Lee-Reid to gain their attention and communicate with them as to what should be done. [ 122 ] Can that be said to be a realistic objectively held reasonable option in the circumstances described above? [ 123 ] I note that at the material time, officers were issuing conflicting orders to the inmate. He was certainly not complying with their directions. By his own admission, he heard one of the officers tell him to stop resisting. By his own admission, he was irritated at the time. What did he mean by that in that situation?

From all of the evidence I have heard, I can only conclude that he was minimizing his emotional state at the time and that he was being argumentative and confrontational, mouthing off to C.O. Saint Hill. [ 124 ] In my opinion, he was clearly uncooperative and non-compliant from the very beginning when he defied the order of C.O. Saint Hill to return to his cell. While he may have been more compliant once he was restrained, Lee-Reid continued to be verbally antagonistic based on C.S. Grille's testimony that the inmate "kept making verbal remarks" at the time. He was thus not an easy inmate to handle.

His actions were confrontational and clearly indicated he was unwilling to be cooperative. Even pepper spray deployed in his face area did not stop him from struggling. [ 125 ] Would it be reasonable in those circumstances to conclude that he would be responsive to communication without more to end the altercation? In my view, given those circumstances it would seem to be highly unlikely. [ 126 ] As for Mr. Gabriel's suggestion that it would have been absolutely helpful to have moved the inmate to another area, it seems to me that given the circumstances and in light of Mr.

Lee-Reid's active resistance and struggling behaviour, I have great difficulty in seeing how that could have been reasonably or practically achieved subject to C.S. Rowan's attendance upon the scene and it is at that point onwards that his actions must be considered. [ 127 ] As for the kicks that Mr. Rowan delivered to Mr. Lee-Reid, I note that as was pointed out by his counsel the only evidence that establishes that the kicks connected with the inmate is Mr. Rowan's testimony to that effect notwithstanding that there were over six other officers present at the incident.

He readily admitted to it. [ 128 ] Without that evidence, the only other evidence available to the Crown was the observation by some of the officers of seeing C.S. Rowan engaged in kicking motions towards Lee-Reid. [ 129 ] It seems to be a case in which Mr. Rowan provided his own incriminating evidence and to that extent he was certainly not evasive in giving his evidence. I also noted that he appeared to be genuine, sincere and responsive when he testified and thoughtful in his responses. I found no reason to disbelieve him. [ 130 ] He testified as to the purpose of his kicks.

He testified that his aim was to stun a large muscle to incapacitate or weaken it momentarily to enable himself and the other officers to gain control over Lee-Reid. He said his kicks were thus purposeful and not random. They were moderate in force and directed to the biceps area of the inmate's left arm. [ 131 ] It seems to me that this is consistent with the testimony of Acting Supervisor Gordon Lee to the extent that the latter testified he saw Mr. Rowan make some kicking motions and that they appeared "short and direct". [ 132 ] The video surveillance clips in which Mr.

Rowan is seen making kicking motions is in my opinion also consistent with his testimony. In those scenes, his kicking is confined towards the lower right corner of the doorway as one looks out from the program room into the living unit. The kicks appear focussed and directed to a particular area and they appear moderate as opposed to a field goal type kick or a running kick. After some six kicks he is seen to stop, step back and look around checking the scene.

He is seen moving a dust bin out of the way. [ 133 ] It seems to me that his evidence is also consistent with that of the inmate himself, Lee-Reid, who testified that when he gave the officers his arm, they stopped hitting him. That is consistent with Mr. Rowan stating that he stopped kicking when it looked like Lee- Reid stopped resisting and the officers were able to handcuff him. I accordingly accept C.S. Rowan's evidence as to his stated purpose in administering the kicks. [ 134 ] Although the Crown's expert testified that a kick was a hard force technique and never used as a stun technique, I note that C.S.

Grille and C.S. Rowan both testified that they were taught that kicking was an appropriate use of force technique. [ 135 ] In considering the above, I accept Sergeant Harris' evidence that the techniques taught on use of force are basic ones and are not expected to cover all situations an officer may encounter in real life. I accept that they are expected to improvise and respond appropriately to subject behaviour as the situation calls for and will change or vary as the subject behaviour changes. It strikes me that it is common sense.

[ 136 ] It seems to me that what is important is the knowledge gained in training to apply force to a particular area of the body to effect a particular purpose. How that force is applied surely must depend on the circumstances.

Thus, in a particular situation involving a standing subject, a stunning technique with a fist or an open hand or even an angle kick as has been referred to in this trial may be appropriate. [ 137 ] In the use of force options framework referred to by the experts to explain the various available options, it is clear that there are circumstances that would justify an officer using a baton as a striking object to apply force.

Similarly, it seems to me that if space is confined, the subject is laying on the ground, and the use of an open hand or even a closed fist becomes impracticable, the only mechanism available to deliver a particular force may well be a measured kick to achieve the same purpose. For that reason, how can it be said that it is not an acceptable technique in those situations?

I am satisfied as stated by Sergeant Harris that it is a proper use of force technique when deployed in appropriate circumstances. [ 138 ] Having arrived at that conclusion, I also bear in mind the basis upon which the test as to the reasonableness of the force used as set out in Pompeo , supra , is to be applied. [ 139 ] As was stated by Wood P.C.J. in that case, the action of C.S.

Rowan should not be "analysed with exquisite precision after the event" notwithstanding that it "may not be demonstrated to have been the most appropriate decision" to have been made and the action taken should not be measured with exactitude in the quiet environment of a courtroom where there is time "to minutely dissect the significance of the events or to reflect calmly upon the decisions to be taken". [ 140 ] Upon a careful consideration of the evidence and applying the principles as stated above to the facts as I have found them, I am unable to conclude beyond a reasonable doubt that having regard to his reasonably held assessment of the circumstances in which he found himself at the time, that the force used by C.S.

Rowan was unreasonable or excessive. [ 141 ] In light of that conclusion, I find that the Crown has not met the requisite threshold standard of proof and find the accused not guilty of the included offence of assault and by that finding it is obvious that I find the accused not guilty of the charges laid as well. (ORAL REASONS FOR JUDGMENT CONCLUDED)