His Majesty the King - v. -, 2023 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 19 Date: April 14, 2023 Information: 90195221 Location: Carlyle _____________________________________________________________________________ Between: His Majesty the King - and - Dani Zaya Appearing: William Burge, K.C. For the Crown Aaron Fox, K.C. For the Accused ______________________________________________________________________________ JUDGMENT R. GREEN , J ______________________________________________________________________________ I INTRODUCTION [ 1 ] Dani Zaya (hereafter referred to as Cst.

Zaya) is charged that on November 1, 2020, at Arcola, that he did, in committing an assault on Joseph Desjarlais, use a weapon (being oleoresin capsicum spray, or in other words pepper spray) contrary to s. 267 (

a) of the Criminal Code . The Crown proceeded summarily. [ 2 ] At the trial in Carlyle, the Crown called three witnesses to testify. These were Reesa Littlechief, Joseph Desjarlais and Charmaine Spry, all who were passengers in the back seat of a truck stopped in Arcola, Saskatchewan, by Cst. Zaya that night. The Crown as well filed into evidence two exhibits. These were videos, without a sound recording of what was happening outside, taken at

the scene of the stop from two police vehicles and which showed some of what occurred outside between Cst. Zaya and Mr. Desjarlais. [ 3 ] The defense called two witnesses to testify: Cst. Zaya and an expert witness, Joel Johnston, who was qualified as an expert in the use of force by police officers while carrying out their duties and the training received by police officers in the use of force. The defense as well filed five exhibits, which were a group of photographs of alcohol taken from the truck Mr.

Desjarlais was a passenger in; the defense’s notice of their intention to call an expert witness together with Mr. Johnston’s CV and his Incident Review Report; and an audio recording of a discussion between Cst. Zaya and Mr. Desjarlais later that night at the Arcola Hospital. [ 4 ] Cst. Zaya has been a member of the Royal Canadian Mounted Police since November 5, 2018. In the early morning hours of November 1, 2020, he arrested Joseph Desjarlais. That arrest led to further physical contact between the two and in particular to Cst. Zaya taking Mr.

Desjarlais to the ground and then subsequently spraying him with pepper spray. [ 5 ] There is no doubt that Mr. Desjarlais did not consent to the application of force by Cst. Zaya towards him. The ultimate question, however, is whether the Crown has proved beyond a reasonable doubt that Cst. Zaya was not justified by s. 25(1) of the Criminal Code in the actions he took towards Mr. Desjarlais (as per R v Gelowitz , 2019 SKQB 183 at para 125 [ Gelowitz ]).

The relevant part of that sub-section provides that if a peace officer is required or authorized by law to do anything in the administration or enforcement of the law, he 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. [ 6 ] As a result, I view the issues to be determined in this case as:

(1) Was Cst. Zaya’s arrest of Mr. Desjarlais authorized by law?

(2) If the arrest was authorized by law, were there reasonable grounds for the actions he took in arresting and further detaining Mr. Desjarlais and did Cst. Zaya use no more force than necessary in doing so? and

(3) Taken together, has the Crown proved beyond a reasonable doubt that Cst. Zaya was not justified by s. 25(1) of the Criminal Code in the actions he took towards Mr. Desjarlais? [ 7 ] This was an emotional trial in many respects. I thank the witnesses who testified for the respect they showed to the proceeding, under difficult circumstances, and counsel for the Crown and defense for their composure and assistance throughout. II BACKGROUND [ 8 ] A group of people including Reesa Littlechief, Joseph Desjarlais, Chris Spry and Charmaine Spry were at a bar this evening in Arcola.

This group left the bar and went over to a residence in Arcola late in the evening, and then in the early morning hours were picked up by a young 16-year-old named Damian Spry in a pickup truck. He was their designated driver. [ 9 ] Damian Spry and his father, Chris Spry, were in the front seat. The driver Damian was sober, but all of the other five adults in the vehicle had been drinking. Ms. Littlechief, Mr. Desjarlais and Ms. Spry (stepmother of Damian) were seated in the back seat of the truck together with an individual named Josh Jones. There was open liquor in the vehicle. Cst.

Zaya later photographed the open liquor seized from the vehicle, which included open cans of Bud Light beer and Mike’s Hard Cranberry Lemonade and one can of Pilsner beer (Exhibit D-1). The pictures disclose twenty-two open or unopened cans that were loose in the vehicle, together with over ten cans remaining inside an opened case of Bud Light beer. [ 10 ] While leaving Arcola, en route to Carlyle, their truck was stopped by Cst. Zaya. Another RCMP officer, Cst. Zayats was on duty this night and also attended to the scene.

Given the remarkable similarity in their names, I have been careful not to confuse these two officers.

[ 11 ] Cst. Zaya is 30 years of age, was born in Bagdad and moved to Toronto when he was four years of age. On the date of this incident, he had two years of service with the RCMP, all at the Carlyle detachment. The nickname used towards him by people in the Carlyle area is Luigi, a name to which he takes no offence. [ 12 ] On this Halloween evening, he was doing general duty policing, which included traffic enforcement. He was on foot, responding to a call in Arcola, when the truck operated by Mr. Spry drove by. Cst.

Zaya saw some commotion in the truck and shone his flashlight towards it in an attempt to signal a stop, but the truck continued. He then got into his police vehicle, turned on his emergency lights, and stopped the vehicle. [ 13 ] The police videos mentioned above were entered into evidence at this trial as Exhibits P-1 and P-2. Exhibit P-1 was a watchguard video from Cst. Zaya’s police vehicle, which showed one view of the incident in which four individuals got out of the back seat of this truck and interacted with the two police officers. Exhibit P-2 was a video taken from Cst.

Zayats’ police vehicle and showed another view of the scene. The videos do not include sound from the incident outside of the vehicles (with only limited sound inside the vehicles) and show very little of the part when Cst. Zaya pepper sprayed Mr. Desjarlais. III WAS CST. ZAYA’S ARREST OF MR. DESJARLAIS AUTHORIZED BY LAW? The relevant evidence [ 14 ] Ms. Spry said, after the police stopped them, Cst. Zaya came up to her stepson’s driver window and asked him some questions. She said Cst. Zayats saw alcohol in the vehicle and yelled to Cst. Zaya, “Open alcohol!” Then Cst.

Zaya said that they were all under arrest and told all four of the individuals in the back seat to get out. She admitted there was open liquor in the back seat of the truck. [ 15 ] Cst. Zaya said the purpose of the stop was to check for license and registration and sobriety. He said when he walked up to the truck, he could not see what was in the back seat because there was a tank in the back of the pickup truck and the back passenger windows were tinted. He spoke to the driver and could immediately smell liquor coming from the vehicle.

Eventually, the back window was rolled down and he could see a case of Bud Light along with other open cans of liquor in the back seat. [ 16 ] Cst. Zaya said that after he concluded that there was open liquor in the vehicle, he advised everyone they were under arrest and that someone would be getting a ticket for this and that they should cooperate. He said intoxicated people were unpredictable, and he wanted to explain as clearly as possible what would be happening.

He also wanted to get everyone out of the back seat so that he could seize the alcohol in the vehicle and determine who was in possession of it. [ 17 ] Regarding the condition of the people coming out of the back seat, Cst. Zaya described them all as intoxicated, with Ms. Spry slurring her words, Mr. Jones having glassy eyes and Mr. Desjarlais having glassy eyes and the smell of alcohol on his breath and presenting as physically upset. [ 18 ] On cross-examination, Cst. Zaya said he saw an open can near Mr. Desjarlais’ feet and was asked why he did not mention that in direct evidence. Having heard Cst.

Zaya’s response to this question, and specifically his reference to a portion in his notes where he referred to seeing Bud Light cans loose on the floor near Mr. Desjarlais and elsewhere in his notes when he referred to three open cans being seized in the vehicle close to where Mr. Desjarlais was seated, I am satisfied and find that Cst. Zaya saw at least one open can of liquor on the floor near Mr. Desjarlais’ feet. Despite Mr. Desjarlais’ testimony that he had two unopened cans of Bud Light beer by him, in view of his admitted state of intoxication, I find Cst.

Zaya’s testimony to be the best evidence on this question. Analysis [ 19 ] After considering the circumstances encountered by Cst. Zaya, and the legal parameters governing this police officer, I have concluded he had the lawful authority to both stop this vehicle and to arrest Mr. Desjarlais. That is because I am satisfied that:

(1) Cst. Zaya was readily identifiable as a peace officer and was in the course of his duty when he stopped this vehicle to check

for whether the vehicle was registered and whether the driver was licensed and sober, exercising the authority of s. 209.1 of The Traffic Safety Act , SS 2004, c T-18.1 ) and the power of a police officer to randomly stop a vehicle as recognized in R v Perras , 2014 SKQB 117 at para 27 , 444 Sask R 78);

(2) Given my finding above, there is credible evidence that Mr. Desjarlais had possession of beverage alcohol in a public place contrary to ss. 107(1) and 109(1) of The Alcohol and Gaming Regulation Act, 1997 , SS 1997, c A-18.011 [ Act ] recognizing that a vehicle falls within the definition of “public place” in this Act ; and

(3) As a result, I am satisfied and find that the arrest of Mr. Desjarlais was authorized by s. 149 of the Act as Cst. Zaya had reasonable grounds to believe he was committing an offence under ss. 107(1) or 109(1) of the Act .

I am further satisfied that the search of the vehicle, without a warrant, was authorized by ss. 153(1) and (2) of the Act , as there were in this case – in the early morning hours at a place away from the officer’s detachment and with a large amount of open liquor found in a vehicle with occupants many of whom were significantly under the influence of alcohol – exigent circumstances which allowed Cst. Zaya to proceed without a warrant. IV IF THE ARREST WAS AUTHORIZED BY LAW, WERE THERE REASONABLE GROUNDS FOR THE ACTIONS CST. ZAYA TOOK IN ARRESTING AND FURTHER DETAINING MR. DESJARLAIS AND DID CST.

ZAYA USE NO MORE FORCE THAN NECESSARY IN DOING SO? [ 20 ] The question of whether there were reasonable grounds for the actions Cst. Zaya took in arresting and further detaining Mr. Desjarlais, and whether in so doing he used no more force than necessary, involves a consideration both of the conflicting evidence heard about the circumstances Cst. Zaya faced in dealing with Mr. Desjarlais but, as well, of the largely uncontradicted expert evidence from Mr. Johnston about this police officer’s training and the use of force by a police officer in carrying out his or her duty.

The Evidence of Reesa Littlechief [ 21 ] Ms. Littlechief is from the White Bear First Nation. She said once their truck was stopped, the four people in the back seat were told to get out of the vehicle, and claimed that each of them was handcuffed, although on cross-examination she admitted that only Mr. Jones and Mr. Desjarlais were handcuffed. She stated she was not told she was arrested but recalled mention of an open liquor ticket. [ 22 ] Ms. Littlechief was taken back to Cst.

Zayats’ police vehicle, where she said she had a view of what was happening to the other individuals that had been arrested and had gotten out of the truck. While she could not hear everything that was being said, she could hear Mr. Desjarlais asking for his handcuffs to be loosened and then she saw an altercation between Cst. Zaya and Mr. Desjarlais where Mr. Desjarlais was pushed up against the truck and then thrown backwards onto the ground and pepper sprayed by the officer twice, in her words “back and forth” and then “everyone freaked out”. [ 23 ] Ms.

Littlechief admitted that she had a significant amount of alcohol that night, and that she was drunk by the end of the night (she estimated she had between seven and eight Bud Light beer in the two and a half hours she was at the bar in Arcola). She said that, from what she could see, Mr. Desjarlais was not fighting with the officer when he was thrown to the ground and pepper sprayed. [ 24 ] Ms. Littlechief said Mr. Desjarlais was screaming after he was pepper sprayed, and that after this all of the other individuals from the truck were told to leave by the officers.

She did so but walked back to the scene just as the ambulance arrived for Mr. Desjarlais and she provided napkins to the police officers which they used to assist Mr. Desjarlais. [ 25 ] On cross-examination, Ms. Littlechief admitted that she saw Mr. Desjarlais make a motion with his elbow towards Cst. Zaya. She as well confirmed that there was struggling between Mr. Desjarlais and Cst. Zaya before they rolled into the ditch and that Mr. Desjarlais was pepper sprayed when he was on his back. She as well overheard Cst. Zaya say to Mr. Desjarlais that he was resisting, which was why he was pepper sprayed.

The Evidence of Joseph Desjarlais

[ 26 ] Mr. Desjarlais, who goes by Joey, is 37 years of age. On Halloween evening he went to The Office Restaurant Bar in Carlyle and had a couple of beer. He then went to Arcola where he met with some friends at a bar and drank with them. He had between five and six beer at the bar, and at the end of the evening went to a residence in Arcola, where he had two more beer. He had to work the next afternoon at the White Bear Casino and left for home with his friends in the back seat of Chris Spry’s truck. [ 27 ] Mr.

Desjarlais admitted that he was intoxicated at the time he was stopped by the police and was in no condition to drive describing his condition as “buzzed” but not blacked out. He further said he remembered some of what happened but not everything. In particular, he did not recall clearly what Cst. Zaya said to him although he recalled the officer telling him to stop resisting. He admitted that he does not like police officers, as his cousin was in his view “killed by one”. [ 28 ] On the way out of Arcola they were stopped by the police.

The designated driver Damian Spry and his father Chris were seated in the front, and he was in the back seat with Ms. Littlechief, Ms. Spry and Mr. Jones. He said Cst. Zaya came up to the driver’s side door and was talking to the driver, Damian Spry. Cst. Zaya then came to his back door, and said he was under arrest and that all of the people in the back seat should get out one by one. [ 29 ] Mr. Desjarlais was confused about why he was being arrested for open liquor as he thought he would only be getting a fine and as well was confused about why he was getting handcuffed.

When asked whether he said anything to the police officer, he said that when he got out he asked Cst. Zaya not to put the cuffs on so tight like, in his words, “some other assholes do”. He admitted that he pulled away from the officer when Cst. Zaya grabbed his arm and that he was slower bringing one arm behind his back to be handcuffed but denied that he was resisting the officer. Given he was larger than Cst. Zaya, Mr. Desjarlais said that if he had been resisting the police officer, Cst. Zaya would not have been able to throw him down to the ground. When asked when he was outside the truck and Cst.

Zaya took his arm and he pulled away, whether he said to the officer “Don’t touch me”, he replied he did not know if he said it, but he certainly thought it. [ 30 ] Mr. Desjarlais said that after he pulled away from Cst. Zaya the officer then told him to line up by the truck and pushed him against it. When asked if Cst. Zaya said anything else to him, he said the officer said, “stop resisting” and then grabbed him and threw him into the ditch. The next thing he recalled was rolling in the ditch after Cst. Zaya threw him to the ground. He denied that he was resisting or that he ever struck or applied force to Cst.

Zaya and claimed he was going to do what the officer said. [ 31 ] Mr. Desjarlais said after he was pepper sprayed, he was blinded and recalled rolling into the ditch onto his stomach and Cst. Zaya got on top of him. He could not recall, when he was on the ground and before he was pepper sprayed, being told by Cst. Zaya to roll over. He claimed that, if he did put his knees up when he was on the ground, it was to protect himself. He said that Cst. Zayats then helped him clean off his face with a cloth. [ 32 ] Mr. Desjarlais admitted that afterwards, when he was at the Arcola Hospital, he apologized to Cst.

Zaya for being drunk and said he did not mean to kick the police officer, and that he as well told him about having been employed as a bouncer and what it was like to deal with intoxicated people. He claimed, however, that he was intimidated by Cst. Zaya, which is why he said these things and that Cst. Zaya said to him that he was lucky the officer did not punch him or taser him. [ 33 ] In total, Mr. Desjarlais denied resisting or touching Cst. Zaya. He denied having any weapons on him. As a result of the incident, Mr.

Desjarlais said he was charged with assaulting a police officer and resisting arrest, and that these charges were subsequently stayed by the Crown. Further, as a result of the incident, he said he was suspended for five days from work as the next day he could not stop shaking. The Evidence of Charmaine Spry [ 34 ] Ms. Spry said that, when Mr. Desjarlais got out of the truck, Cst. Zaya put handcuffs on him, and Mr. Desjarlais responded, “Take it easy not so tight”. She and Mr. Jones were left standing by the side of the truck while Cst. Zaya dealt with Mr. Desjarlais. She heard Cst. Zaya say to Mr.

Desjarlais “stop resisting” and heard Mr. Desjarlais say “Oh, fuck, don’t”. She said the police officer then slammed Mr. Desjarlais into the truck and Cst. Zayats told her and Mr. Jones not to look. [ 35 ] Ms. Spry said she could not see what was happening but then she heard some shuffling and heard Mr. Desjarlais say “Don’t” and heard Cst. Zaya say “Stop resisting”. When she looked back quickly, all she could see after that was Cst. Zaya on top of Mr. Desjarlais and could not see anything else. She soon heard Mr. Desjarlais say, “Oh fuck you sprayed me, man”.

[ 36 ] Ms. Spry saw Mr. Desjarlais after he was pepper sprayed, and said his face was red and “dripping”. She did not see Mr. Desjarlais do anything to Cst. Zaya and said that she did not have any weapons on her nor did any of the other individuals. [ 37 ] In cross-examination, Ms. Spry admitted that there was open alcohol in the back seat of this vehicle and that Cst. Zaya said to them that they were all under arrest for open alcohol. Given her lack of dealings with police prior to that day, Ms. Spry did not know what this meant. The Evidence of Cst. Zaya [ 38 ] Cst.

Zaya testified that, when he first spoke to the driver Damian Spry, his father Chris Spry was talking loudly over him in a challenging way, and not letting his son respond. He said that when Mr. Desjarlais got out of the truck, he was upset and said, “what’s with the fucking handcuffs”. Cst. Zaya was able to get one handcuff on him but said Mr. Desjarlais was resisting with his other arm and pulled away and made his arm stiff. As a result, Cst. Zaya pushed him towards the vehicle and told him to stop keeping his arm stiff. Cst. Zaya said in response, Mr.

Desjarlais pushed his arm back into the officer’s chest. [ 39 ] Cst. Zaya said that he believed Mr. Desjarlais was actively resisting, and that although he told him to stop resisting, Mr. Desjarlais continued to do so and that he made a quick decision to take Mr. Desjarlais down to the ground in an attempt to control him. He said he tried to roll Mr. Desjarlais over onto his stomach to further control him, but Mr. Desjarlais kicked him. He then again told Mr. Desjarlais to roll over onto his stomach, and Mr. Desjarlais said to him “Fuck you”. He then took out his pepper spray and warned Mr.

Desjarlais that if he did not get onto his stomach he would use the pepper spray and that it would hurt. Mr. Desjarlais replied, “Fuck you” and Cst. Zaya sprayed him with pepper spray. [ 40 ] In describing why he dealt with Mr. Desjarlais in the way he did, Cst. Zaya said that when he was attempting to handcuff Mr. Desjarlais he was actively resisting, and he was not complying with his simple commands. After he got the cuffs on Mr. Desjarlais, he said that Mr. Desjarlais pulled away from him and told him to “Fuck off”. He said that Mr.

Desjarlais was then trying to get away from him and flexed his muscles and pushed back into the officer’s chest and that is when he made the decision to take him to the ground. [ 41 ] Cst. Zaya said he was responding to active resistance from an intoxicated person who was not complying with his instructions, whom he had told multiple times to stop resisting. Cst. Zaya said that no one from the vehicle had been searched and he was seeking to take control of Mr. Desjarlais until he was cooperative and listening to his commands. As well, he said that Mr.

Desjarlais was bigger and stronger than he was and was pushing back against him while he tried to gain control of Mr. Desjarlais. [ 42 ] Regarding what happened on the ground, he said he told Mr. Desjarlais to roll onto his stomach, which would allow the officer to control him. Mr. Desjarlais then kicked him in the leg. At that point, he said he decided against punching or otherwise striking Mr. Desjarlais or using his baton or a taser on him, as all of these options would increase the risk of injury to Mr. Desjarlais.

He said he knew that pepper spray would not cause a lasting injury, and this is why he used this. [ 43 ] Cst. Zaya said he then got Mr. Desjarlais onto his stomach and called Emergency Medical Services (EMS) to attend for Mr. Desjarlais. After the ambulance arrived, he talked to Mr. Desjarlais, gave him his rights to counsel and the police warning and told him he was being arrested for open liquor and assaulting a police officer and resisting arrest. Mr. Desjarlais told him he did not want to call a lawyer. [ 44 ] Cst. Zaya then went to the Arcola Hospital, where Mr.

Desjarlais remained in custody and spoke to him. He said Mr. Desjarlais was friendly to him and called him by his nickname Luigi. Mr. Desjarlais told him he was sorry for being drunk and kicking him. He as well said he was concerned about losing his job at the casino and he was happy that Cst. Zaya did not taser or punch him. Having heard the recording of this conversation, I am satisfied and find that this is an accurate

summary of their conversation. [ 45 ] Cst. Zaya then took Mr. Desjarlais back to the detachment, released him and drove him to a friend’s place in Carlyle. [ 46 ] Cst. Zaya said he believed that, in dealing with Mr. Desjarlais, he followed the RCMP’s model of intervention which ranged from a cooperative person to passive resistance to active resistance and further to violence. Regarding whether there was any danger to a

police officer from a person who had been handcuffed, Cst. Zaya said that a person who had been handcuffed is not necessarily risk free, as it is still possible for that person to bite, spit, or use other force against an officer. He denied that he in any way intimidated Mr. Desjarlais at the hospital, and said that Mr. Desjarlais was at one point laughing during their discussion there. [ 47 ] Returning to when Mr. Desjarlais came out of the truck, Cst. Zaya repeated that Mr. Desjarlais was visibly upset and would not cooperate. When shown the video, in court, Cst.

Zaya said it was impossible to see from the video when Mr. Desjarlais straightened his arm and tensed his muscles, but he could clearly feel this with Mr. Desjarlais up against him at the time. [ 48 ] Cst. Zaya denied the suggestion that Mr. Desjarlais quickly complied and put his hands behind his back, or that he threw Mr. Desjarlais into the ditch without justification, saying he believed Mr. Desjarlais was actively resisting him as he was not following instructions and was pulling away and not listening to him. He said, at the back of the truck, Mr.

Desjarlais pulled away from him and said, “Fuck off” and at the same time was flexing his arm and turning towards the police officer and pushing into him. Despite telling Mr. Desjarlais to stop resisting, Cst. Zaya said Mr. Desjarlais continued to do so, and this was when he made the decision to take Mr. Desjarlais to the ground. Cst. Zaya said he deployed the pepper spray in an attempt to get control of Mr. Desjarlais and to have him roll over onto his stomach. [ 49 ] In total, Cst. Zaya said the reason for throwing Mr.

Desjarlais to the ground was that he was actively resisting, both in terms of his language and his behavior, which he thought was potentially assaultive in nature. He said he acted to prevent any escalation of the resistance. Regarding taking Mr. Desjarlais to the ground, he said that because Mr. Desjarlais was pressing into him he in effect just stood back and used Mr. Desjarlais’ momentum to take them both to the ground. The Evidence of Joel Johnston [ 50 ] Mr.

Johnston was qualified as an expert and allowed to give opinion evidence in the use of force by police officers while carrying out their duties and the training received by police officers in the use of force. His CV was filed as Exhibit D-4. He was a police officer with the Vancouver Police Service for 28 years, retiring in 2013. While a police officer, he worked as a general duty officer, which included traffic enforcement and time on the emergency response team.

He was also involved with setting operational policy within the police force and instructed other officers in the use of force by police officers. [ 51 ] After his retirement from regular policing, he has continued to instruct police officers in the use of force and has further been qualified to testify as an expert in the use of force by police in courts across Canada. [ 52 ] Mr. Johnston said he is familiar with the use of force training given by the RCMP.

At page 37 of his expert report (Exhibit D- 2), he outlined the Incident Management Intervention Model (IMIM), that is used by the RCMP and in which situational factors suggest the amount of force to be used by a police officer. He stressed that context is critical to the model, as the behavior that officers encounter determines the amount of force to be used in return by the officer. That behavior can range from passive resistance to active resistance to assaultive behavior to grievous bodily harm.

He said that, in responding to these different behaviors, a police officer needs to take a risk assessment to determine what the appropriate response is. In assessing the question of risk, Mr.

Johnston said that the more resistance provided by a person encountered by a police officer, the more risk is produced, especially if the person is intoxicated. [ 53 ] Regarding what happened on November 1, 2020, at Arcola, after reviewing both police videos and reading the statements provided to the defense in disclosure, which included those of the witnesses that testified at the trial, he identified a number of risk factors:

(1) It was a stop late at night, with six unknown people in the vehicle, with a number of them intoxicated and a significant amount of alcohol in the vehicle, both open and apparently being consumed;

(2) There was a tank in the back of the truck which blocked the officers’ view inside the vehicle when walking up, and delayed the officers in ascertaining who and what the truck contained;

(3) When Cst. Zaya spoke to the driver of the truck, the front seat passenger talked loudly over the driver in a challenging fashion;

(4) Despite the first three people to exit the back seat being cooperative, in his view Mr. Desjarlais provided resistance, which was in

part verbal, given the evidence that Mr. Desjarlais verbally resisted the officer swearing at him and questioning the use of handcuffs upon emerging from the truck. As well, he said Mr. Desjarlais was a larger person than Cst. Zaya, was clearly upset with the situation, was under the influence of alcohol and was verbally challenging the officer; and

(5) In dealing with a group of unknown individuals, when one of them is uncooperative and verbally challenges the officer, there is a huge concern that this behavior can escalate quickly and dramatically to the others given the dynamics of an initial meeting which can easily get out of control. [ 54 ] Mr. Johnston said that, taken together, these factors raised the overall risk of the situation to Cst. Zaya. Mr. Johnston further said that after Mr.

Desjarlais was arrested it appeared that he pulled away twice from the officer, and that was significant because his behavior had escalated from verbal non-compliance to active resistance and continued verbal resistance. [ 55 ] Mr. Johnston noted, based on his assessed review of one of the videos, that it took eight seconds for Cst. Zaya to handcuff Mr. Desjarlais, when in Mr. Johnston’s experience two seconds would be sufficient if the subject was cooperating. Mr. Johnston said his review suggested that Mr. Desjarlais pulled away from Cst.

Zaya after he was handcuffed and at the same time was communicating with Mr. Jones beside him. He said that Mr. Desjarlais appeared to pull his arm away and say something to the effect that the officer should get his hands off of him. This all, in Mr. Johnston’s view, further raised the risk of the situation. [ 56 ] Regarding Cst. Zaya’s evidence that he told all the people in the truck that someone would be getting a ticket for open liquor, he said this approach is often used by police offices to de-escalate a situation and lower the tension. [ 57 ] Regarding the options open to Cst. Zaya after handcuffing Mr.

Desjarlais, Mr. Johnston said they were: 1. Continue talking to all the people; 2. Seek other police officers to attend to the scene; and 3. With a larger stronger person continuing to resist verbally and physically, he could as well consider higher levels of physical response, which were (

a) taking him to the ground, (

b) striking him with his knee or hand, or in the alternative, (

c) disengaging from him and leaving the scene. [ 58 ] Mr. Johnston said that taking a person to the ground was, in his opinion, the lowest form of physical response to the situation. He described the take down by Cst. Zaya on Mr. Desjarlais as a straight balanced displacement, where he used Mr. Desjarlais’ weight to take them both to the ground.

This was in his view a low-level take down which he said was consistent with the IMIM model used by the RCMP. [ 59 ] Regarding whether someone being handcuffed meant they were not a danger to the officer, he disagreed and said that despite a person’s hands being restrained they would not necessarily be under control if they refused to be.

He further said, after a take down, the proper approach to be used by an officer includes attempting to get the person on the ground into the prone position, which means with their stomach facing the ground, to gain further control of the subject and to avoid being kicked or kneed. [ 60 ] Mr.

Johnston said where a person on his back is not responding to commands and continues to resist and kick the officer, the options for an officer are: (1) to continue talking to the person to try to get them onto their stomach; (2) to try to muscle the person into position, which would only work if you were stronger than the person; and (3) finally, to choose between striking them or using pepper spray or using a taser or a baton. [ 61 ] Mr. Johnston said pepper spray was the lowest level of physical intervention between these options.

He further said that in the case of a police officer facing active resistance, a take down is clearly an option consistent with the IMIM model and that if a subject is on the ground on his back and is not complying and is actively resisting and kicking the officer, the use of pepper spray is consistent with the use of force in training given to police officers. [ 62 ] Specifically, in his report at page 35, he opined that while Mr. Desjarlais was on the ground, if Mr. Desjarlais engaged in active resistance and Cst.

Zaya’s attempt at verbal direction failed along with other attempts at physical soft control, the use of pepper

spray was consistent with the RCMP training policy under the IMIM. He further said that if, in addition to the above behavior, Mr. Desjarlais kicked the police officer, the use of pepper spray would as well be consistent in these circumstances with the IMIM model. Lastly, however, he said that if, when on the ground, Mr.

Desjarlais did not resist in any way and did not knee or kick the officer, then the use of pepper spray would not be consistent with the IMIM model. [ 63 ] In cross-examination, he admitted that if a person under arrest was not resisting in any way whatsoever, that pushing him into a truck and throwing him to the ground would not be consistent with police training on force. He, however, maintained that the threshold for a physical response by a police officer, such as was employed by Cst. Zaya, was active resistance and not necessarily assaultive behavior.

The police videos (Exhibits P-1 and P-2) [ 64 ] What was disclosed in the two police videos of some of the incident was viewed in sharp contrast by the Crown and defense. The prosecutor viewed both videos as showing in effect, no resistance whatsoever by Mr. Desjarlais from when he got out of the truck to when he claimed that Cst. Zaya pushed Mr. Desjarlais three times into the truck and then threw him to the ground. [ 65 ] The defense expert, Mr.

Johnston, in his report went through both videos frame by frame, noting that these videos do not include any sound from the incident outside of the police vehicles and only pictured part of what happened between Cst. Zaya and Mr. Desjarlais. His assessment is contained at pages 14 through 31 of his report, which appears together with stop-frame footage from the videos. The relevant part of that analysis, from where Mr. Desjarlais exits the vehicle is as follows: - Joey Desjarlais exits vehicle. All parties have exited the vehicle within approximately one minute and five seconds; - Cst.

Zayats returns to truck within one minute as Cst. Zaya begins handcuffing Mr. Desjarlais; - It takes Cst. Zaya eight to ten seconds to get Mr. Desjarlais handcuffed. There are now three people outside the vehicle. Two handcuffed males, one uncuffed female. Two uncontrolled males remain in front seat of truck. One uncuffed female. Two uncontrolled males remain in front seat of truck. One female in Cst. Zayats’ vehicle; - Mr. Desjarlais can be seen talking to Mr. Jones as Cst. Zaya is holding his right arm; - Mr. Desjarlais appears to pull his elbow away from Cst.

Zaya as he was being walked to side of the truck demonstrating a form of active resistance; - Mr. Desjarlais appears to pull away from Cst. Zaya demonstrating a form of active resistance; - Mr. Desjarlais appears to be talking with Mr. Jones; - Cst. Zaya takes firm hold of Mr. Desjarlais’ right arm and then appears to talk to him; - It appears that Cst. Zaya pushes Mr. Desjarlais into side of truck; - Cst. Zayats moves to position of cover as Cst. Zaya appears to continue to talk to Mr. Desjarlais; - Cst. Zaya initiates take down of Mr. Desjarlais; - Cst. Zaya takes Mr.

Desjarlais to ground… by rotating his hips counterclockwise and pulling him backwards and downwards by his right elbow and then releasing his elbow; - Mr. Desjarlais appears to hit the ground glutes first and rolls backwards; - Cst. Zaya appears to have lost his hold on Mr. Desjarlais; - Cst. Zaya and Mr. Desjarlais move out of frame of Cst. Zaya’s watchguard camera system for the remainder of the incident; - Cst. Zaya appears to immediately pursue Mr. Desjarlais having lost his grip on him; - Cst. Zaya appears to try to jump on Mr. Desjarlais; - Cst. Zayats physically and verbally directs Mr. Jones and Ms.

Spry; - Cst. Zaya appears to be deploying pepper spray…; - Cst. Zaya has just deployed pepper spray and is rolling Mr. Desjarlais onto his side;

[ 66 ] Regarding the use of videos in a case such as this, and in this case in particular, Mr. Johnston said the following at p. 41 of his report: Many people hold the belief that any given video “speaks for itself”. This is seldom the case. Any given video will not reflect what an officer saw or heard, what the officer was attending to, or what the officer perceived. Even if a video camera were mounted on the officer, and in fact we could go so far as to say, even if a video camera was positioned between an officer’s eyes, it still will not show what the officer saw.

Cameras do not possess the ability to have a focus of attention that is stimulated by everything an officer sees, hears, smells, feels, knows, believes and/or perceives. Cameras cannot feel resistive tension. Cameras often cannot capture micro- gestures and expressions that can be seen and felt at close-range. These cameras have not captured accompanying audio, including volume, tone of voice, conversation content, word selection, etc. Camera positioning/angle, field of vision, frame rate, video quality, etc. will directly impact on what is revealed to any third hand observer.

The camera perspective is rarely, if ever, the same as the officer’s perspective. Therefore, the camera may “see things” the officer did not and/or could not see. The camera may also miss things that actually happen depending upon the frame rate and refresh rate (because many video systems are only capable of capturing and recording “significant changes” otherwise the system will maintain the current “reference-predictive frame” until such time as a significant change is detected).

The absence of a complete audio track with the watchguard cameras is not helpful in assisting with the fuller context of how and why the interaction unfolded the way that it appeared to. However, the audio tracks that are available are of some assistance in triangulating timing and actions taken. The third hand viewer has the opportunity to look at the event multiple times with the benefit of hindsight bias and not having been in any personal danger. The officers have only one opportunity to experience the event in real time, under the stresses of the moment when the outcome is uncertain.

Sometimes what the camera does not see (whether the field of view is blocked, or the element is out of frame, or the element is lost as a result of the reality that camera technology is not the same as the human visual system and will actually fill in time spaces with “predictive” or “reference” images or “frames”) can be critically important - for example, the camera may not capture quick movements, critical gestures and actions, rapid gunfire, etc., as these may occur between still frame captures.

An officer’s state of mind, prior knowledge, past experience, stress level and physical state can directly affect their perception of an event and what they are actively attending to during the event (whatever they are actually focusing on) – so they may not even see things that are clearly displayed by video images – because they are not paying attention to them. Analysis [ 67 ] In determining whether the force used by Cst. Zaya against Mr. Desjarlais was justified and reasonable, I must consider all of the circumstances from this night, as they existed at the time and as Cst.

Zaya believed them to exist (see R v St. Onge , 2014 SKPC 64 at para 37 , 441 Sask R 126). As well, I should caution myself against judging the reasonableness of this officer’s actions with an after-the- fact analysis in the calmness of the courtroom, but, rather, I should consider the entire circumstances in the context of what was occurring.

As stated in R v Dobbs , 2016 ONSC 4957 (at para 45 , and citing R v Cornell , 2010 SCC 31 at para 24 , [2010] 2 SCR 142) to engage in “second-by-second reconstruction is to engage in the reflective hindsight or the ‘Monday morning quarterbacking’ of police conduct that the courts caution against.” [ 68 ] Further, in reviewing the scope of s. 25 of the Criminal Code , and authorities on this which included R v Nasogaluak , 2010 SCC 6 , [2010] 1 SCR 206 and R v Power , 2016 SKCA 29 , 335 CCC (3d) 317 [ Power ], Danyliuk J in Gelowitz , at para 32 , set out these general principles: - Police officers effecting arrests of suspects are authorized by s. 25 of the Criminal Code to do what is “required or authorized to do” and to use “as much force as is necessary” to effect the arrest. - This does not provide peace officers with free rein to do whatever they wish.

The principles of necessity, proportionality and reasonableness apply to circumscribe police officers’ permitted use of force. - The law recognizes that in the heat of the moment, an officer does not (indeed, cannot) need to pause to ponder, weigh and decide upon the next action.

Often he or she will have no time to do so. - While the amount of force permitted must be reasonable and must only be that which is necessary to accomplish the arrest, an officer is not required to “weigh to a nicety” his or her use of force. - The measure of appropriate use of force has subjective and objective elements; both must be satisfied for the statutory protection to be engaged. [ 69 ] Lastly, regarding the level of force used by a police officer as justified by s. 25 , I note that the Saskatchewan Court of Appeal

in Power (at para 32 ) said that “the force used by a police officer … must be no more than necessary to enable him or her to defend themselves or effect an arrest” and that the “law provides for a flexible or tolerant approach to the objective measure of whether force is proportionate”. [ 70 ] After considering the evidence presented by the Crown and the defense, and the legal parameters of justification for a police officer within s. 25 of the Criminal Code , I have concluded that Cst. Zaya had reasonable grounds for the physical actions he took towards Mr. Desjarlais in arresting him and taking him into custody. That is because:

(1) Cst. Zaya’s subjective belief that he was dealing with a resistant intoxicated person who was bigger and stronger than he was and who was not following his commands and at the same time was tensing up and resisting him physically, was in my view established through the officer’s testimony, and as well was supported by the evidence of all the witnesses from that night, in terms of Mr. Desjarlais’ level of intoxication, his verbal resistance and his actions in pulling away from Cst. Zaya and Cst. Zaya’s warning to him to stop resisting. What was contested was whether Mr. Desjarlais continued to resist Cst.

Zaya both verbally and by tensing up and pushing his body back at the officer and refusing to follow his directions. Having viewed both videos, and as well considered Mr. Johnston’s frame by frame analysis of them together with his caution about the limited use such videos (without sound) can be in providing the full picture of what was happening, and the reality that Cst. Zaya’s recollection of the fast-moving events was not affected by the consumption of alcohol as I am satisfied the Crown witnesses’ recollections were, I am satisfied and find that Mr. Desjarlais actively resisted Cst.

Zaya by his words and actions from the point he got out of the truck until he was on the ground and had been pepper sprayed by Cst. Zaya;

(2) The risk factors of the situation identified by Mr. Johnston in his evidence – which included the time of the stop, the number of people in the truck and the amount of alcohol open and apparently being consumed in the vehicle together with the intoxicated state of some of the passengers, the resistance provided by Mr. Desjarlais and the potential that the resistance could escalate to the others, especially considering the communication between Mr. Desjarlais and Mr.

Jones – together with the reality that this truck was being driven by a 16-year-old novice driver with no other sober adult in the vehicle, in my view support a conclusion that the subjective view of the situation held by Cst. Zaya was reasonable; and

(3) The evidence of Mr. Johnston as well satisfies me that given Cst. Zaya’s subjective assessment of the situation, which as I have said in my view was reasonable, he was justified in the actions he took in taking control of Mr. Desjarlais - taking him to the ground, and after Mr.

Desjarlais refused to roll onto his stomach and after he kicked the officer and refused to cooperate, in pepper spraying him - were consistent with the use of force training he received from the RCMP and with the IMIM model still accepted and utilized by the police force. [ 71 ] Further, based on the evidence at this trial, and the legal parameters within s. 25 of the Criminal Code , I have as well concluded that Cst. Zaya did not use more force than necessary in the actions he took toward Mr. Desjarlais. That is because:

(1) Mr. Johnston’s opinion was in my view clear that unless Mr. Desjarlais provided no resistance whatsoever - which I am satisfied was not the case here - Cst. Zaya’s actions in taking him to the ground, and in subsequently dealing with him on the ground and using pepper spray in the circumstance he described were consistent with the use of force model accepted by the RCMP. While the evidence, in my view, does not prove that Mr. Desjarlais assaulted Cst. Zaya before the two men went to the ground, I am nevertheless satisfied that Mr.

Desjarlais was resisting the officer, verbally and physically, and that the actions taken by Cst. Zaya in pushing him up against the truck, shortly before taking him to the ground, were part of a reasonable attempt on the part of the officer to control a subject who was resisting and refusing to follow his directions;

(2) In my view Mr. Desjarlais’ apology to Cst. Zaya at the hospital - after he had received the police warning and declined the opportunity to speak to a lawyer, and in which he referred in a relaxed tone to the officer by his nickname Luigi - is evidence that Mr. Desjarlais was apologizing for being drunk and having resisted the officer; and

(3) Finally, Mr. Johnston’s evidence that the take down of Mr. Desjarlais by Cst. Zaya was the lowest form of physical response he could have applied and that the use of pepper spray on Mr. Desjarlais was the least intrusive physical intervention Cst. Zaya could have used, in comparison to striking him with his hand or baton or using a taser on him, and one that would result in a lower likelihood of injury than the other options, in my view supports the conclusion that this officer was not using more force than necessary in this situation, as well considering that Cst.

Zaya immediately summoned an ambulance for Mr. Desjarlais. V TAKEN TOGETHER, HAS THE CROWN PROVED BEYOND A REASONABLE DOUBT THAT CST. ZAYA WAS NOT JUSTIFIED UNDER S. 25(1) OF THE CRIMINAL CODE IN THE ACTIONS HE TOOK TOWARDS MR. DESJARLAIS?

[ 72 ] The situation faced by Cst. Zaya early this morning was dynamic and fast-paced. While it is entirely possible that a more experienced police officer could have handled the situation with Mr. Desjarlais in a different way, or with less force, the question I must ultimately answer is whether I am satisfied beyond a reasonable doubt that the actions of Cst. Zaya were not justified by s. 25 of the Criminal Code . [ 73 ] Because I have concluded that:

(1) Cst. Zaya had lawful grounds to arrest Mr. Desjarlais; (2) based on his subjective belief of the situation, there were reasonable grounds for the actions Cst. Zaya took in the course of arresting Mr. Desjarlais and taking him into custody; and (3) the officer used no more force than necessary in doing so, I am left with a reasonable doubt of his guilt on this charge. Put another way, and regardless of whether there were other options in dealing with Mr. Desjarlais that might as well have been considered reasonable, nevertheless, in my view the Crown has not proved beyond a reasonable doubt that Cst.

Zaya was not justified under s. 25 of the Criminal Code in the actions he took towards Mr. Desjarlais. [ 74 ] As a result, he is found not guilty. ____________________ R. Green, J