Her Majesty the Queen - v. -, 2014 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 049 Date: February 28, 2014 Information: 24038580 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shawn Oliver Gunther Appearing: B. Bauer, Q.C. For the Crown R. Piché For the Accused DECISION - CHARTER APPLICATION R.D.

JACKSON , J I INTRODUCTION [ 1 ] The accused brings application for Charter relief pursuant to s. 24(1) and s. 24(2) for breach of his s. 7 and s. 12 Charter rights, arising from his encounter with the RCMP on March 25, 2012. [ 2 ] At issue is whether the two arresting RCMP officers, Constables Lanoie and Lush, employed unnecessary and excessive force when effecting the arrest of the accused for impaired care or control of his motor vehicle.

[ 3 ] The nature and extent of this force as acknowledged by the Crown can be summarized as follows:

a) take down to the ground;

b) finger pressure under the chin;

c) finger pressure to the eye (extent of which caused bruising and swelling);

d) two knee strikes to the ribs;

e) two punches to the face; and

f) pepper spray to the face. [ 4 ] The Crown asserts however that in the circumstances as they unfolded, this use of force was both necessary and reasonable in accordance with s. 25 of the Criminal Code which authorizes a police officer, acting on reasonable grounds, to use as much force as is necessary for the purpose of making an arrest. [ 5 ] The defence position correspondingly is that the means utilised to arrest Mr.

Gunther were nothing short of gratuitous and unwarranted violence of such an egregious nature that a stay of proceedings ought to be entered by the Court or alternatively, exclusion of all evidence subsequent to the arrest. [ 6 ] Upon careful consideration of the materials submitted by counsel and a very thorough review of the exhibit, transcript and recorded evidence, the Court is of the view that the characterization of the Crown must prevail, for the following reasons:

a) the accused was encountered in an intoxicated state which he acknowledged in his evidence. He admitted initially consuming at least “a dozen drinks” throughout the day and then conceded he actually had no idea how much he had drank;

b) the accused also admitted that when he is intoxicated his memory is sometimes affected as well as his judgement causing him to do things he might not ordinarily do;

c) when told he was under arrest for impaired care or control (in his words DUI), he admitted attempting to re-enter his running truck;

d) he stated his purpose was to retrieve his cell phone which he says he told the officers before heading back into his truck. Both Constables stated emphatically in evidence that no mention was made at this time (or any time subsequent) of Mr. Gunther’s cell phone. The Court prefers the evidence of the police officers in this regard. If the accused was simply retrieving his cell phone, why would he then grab the steering wheel and overhead D handle in an apparent death grip. The accused testified he did so because they were pulling on him and he didn’t want to land on the ground.

He conceded he could have simply let one or both arms loose and put a foot on the ground but states he didn’t think of this. Further, according to the police, it took upwards of two minutes to pry his hands loose. Although the accused did not think it took this long, there nonetheless would have been more than ample time before being removed from the truck to convey that he was just getting his cell phone.

At no time then or thereafter throughout the approximate 15 minute episode to subdue him did he ever mention the cell phone to the police according to their evidence and confirmed by the accused in his testimony;

e) the “pain compliance” which was administered once the accused was placed under arrest to bring him under control was implemented in an incremental fashion only after the police repeatedly advised the accused he was under arrest and to comply with their demands and after it was apparent that the current technique was having absolutely no effect on the accused. At any stage, the accused could have simply chosen to comply which would have ended the matter.

This is underscored by the fact that the accused acknowledged in his evidence that once he was finally subdued and handcuffed, there was absolutely no further physical interaction. If the police were apt to use “gratuitous” violence on the accused as alleged, it is curious that they would have chosen not to continue with this further when the accused was in no position to fight back;

f) although the means employed were drastic, they were neither unnecessary or excessive. The police were dealing with a totally non- compliant detainee who was deliberately holding his arms under his body preventing the officers from carrying out their duty. Further, he was intoxicated and thereby unpredictable and the officers had no way of knowing to what extent he may continue to resist or whether he had access to anything he could use as a weapon. Officer safety therefore was certainly a legitimate concern. They were also not dealing with any ordinary individual. Mr.

Gunther is very solidly built at 5’8” and 240 pounds and apparently possessed of exceptional strength given the description of both officers as to what was required to eventually bring him under control. According to their testimony, one had hold of each arm of the accused yet took minutes to pry his hands loose from the steering wheel and D handle in the truck. Similarly, both officers pulling each to an arm of the accused with all their strength could not remove his arms from beneath his body.

Then, after nearly 15 minutes of struggle, having sustained several consecutive pain compliance measures, the accused was still able to push himself up with the two officers positioned on his back and legs - their combined weight being about 400 pounds according to Constable Lush. Small wonder that the police both expressed concerns for their safety and successful ability to effectively control the accused. [ 7 ] The overall resulting injuries to Mr. Gunther were indeed unfortunate, however, he was unquestionably the author of his own misfortune in the Court’s view.

His judgement was undoubtedly clouded by his degree of impairment. Even if he thought he was “doing nothing wrong” he certainly knew he was under arrest and that the police required him to go with them.

The degree and severity of his injuries could have been greatly ameliorated, if not avoided entirely, had he simply acted in a rational manner and chosen to cooperate, if not at the outset, then certainly when it became apparent the police were prepared to use physical force and pain compliance to carry out their duties. [ 8 ] In the result, the accused has failed to establish any Charter breaches concerning the conduct of the police on these facts in effecting the lawful arrest upon him. His application is therefore dismissed. ___________________________ R.D. Jackson, J