R. v. Pietrzak, 2022 BCPC 290

Citation: R. v. Pietrzak 2022 BCPC 290 Date: 20221201 File No: 95435-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SIGGY EMMETT STEVEN PIETRZAK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.R. ARMSTRONG Counsel for the Crown: D. Hainey Counsel for the Defendant: D. Butcher, K.C. Place of Hearing: Kelowna , B.C. Dates of Hearing: May 24-26, June 23-24, July 21, August 30, September 20-22, and October 7, 2022 Date of Judgment: December 1, 2022

Introduction [1] On May 25, 2020, Cst. Derek Chauvin murdered George Floyd in Minneapolis, Minnesota. The impact of that killing was feltaround the world. Five days later, on May 30, 2020, Tyler Steven Russell was repeatedly punched in the face by the Defendant inKelowna, British Columbia. Those punches have brought the Defendant before this court, charged with assault upon Tyler StevenRussell. Those punches were captured on video by two civilians and that video footage appears shocking. [2] Last month, thousands attended the funeral of Cst.

Shaelyn Yang after she was stabbed to death in an altercation in a Burnabypark. Neither George Floyd’s nor Cst. Yang’s death assists me in the determination of whether or not the Defendant assaulted Mr.Russell. That determination must flow from the evidence in this case and depends on whether the Defendant’s actions were justifiedunder s. 25 of the Criminal Code of Canada, RSC 1985, C. C-46, as amended. Both parties focussed their attention on s. 25 andaccordingly I will do the same. [3] Police perform a vital role in our society. We look to police to keep us safe.

Police are granted special authority and powers toperform that function. When police act beyond the scope of their authority or powers, the population loses confidence in the police andthe justice system. Such loss of confidence can undermine the safety of everyone, police included. We have seen tragedies involvingpolice abuse of power and the converse, police targeted because of their uniform. Lawful use of force by police is an important tool in themaintenance of a just, peaceful, and safe society. Unlawful use of force threatens such a society.

Accordingly, it is critically important toproperly assess the evidence in this case and apply the law in a fair, transparent, and ultimately correct manner. [4] The evidence commenced in May and concluded in September of 2022. Crown called 11 witnesses, including one expert.Defence called two witnesses, the Defendant and an expert. Both counsel have made admissions of fact that have greatly assisted in theorderly progress of this trial. The evidence was surprisingly complex. An event that took mere seconds has occupied more than 12 daysof hearing. [5] The events of May 30, 2020 began unremarkably.

After a civilian complaint of a possible impaired driver, traffic member Cst.Carter offered to relieve Cst. Davidson who had initially responded to the call. As a traffic member, Cst. Carter wanted to ensure that theimpaired person would not drive the work truck to which he was associated. Cst. Carter contacted the truck owner/employer who askedCst. Carter to retrieve the vehicle keys, which they would come and collect. Cst. Carter simply wanted to send Mr. Russell on his wayand to return the keys to their owner. Cst. Carter’s hope for such a “peaceful resolution” was short-lived. Instead, Mr.

Russell moved intothe driver’s seat of his employer’s truck setting in motion the chain of events that brings us to court today. [6] The Crown bears the onus of proving each element of the offence beyond a reasonable doubt. The Defendant does not need toprove anything. Both counsel accept that the principal issue here is the application of s. 25 of the Criminal Code.

There are otherjustifications or defences such as “self-defence/defence of others” in s. 34, which may also have had application, but if s. 25 applies,resort to s. 34 is unnecessary. [7] Because there is an “air of reality” to the s. 25 justification, the Crown must also establish beyond a reasonable doubt that theDefendant’s punches were not proportionate, necessary, or objectively reasonable. If the Crown establishes beyond a reasonable doubtthat the force was not proportionate OR that it was not necessary OR that it was not objectively reasonable, the justification fails.

Issues [8] There is no dispute that the Defendant applied force intentionally to Tyler Steven Russell without the latter’s consent on May30, 2020 in Kelowna, British Columbia. Crown Counsel acknowledges that the Defendant acted upon reasonable grounds and that thearrest of Mr. Russell was legal. The Crown also accepts that the Defendant subjectively believed that his punches were a reasonableresponse to the situation. The Crown says that the issue to be determined is the objective reasonableness of that belief. [9] The factual and legal issues which remain to be determined are: a. What were Mr. Russell, Cst.

Carter, and Cst. Donahue doing upon the arrival of the Defendant and what knowledge did theDefendant have of the situation? b. What was the Defendant’s particular knowledge and experience at that time? c. What force did the Defendant use against Mr. Russell? d.

Was the force used by the Defendant (viewed objectively from the vantage of someone with the Defendant’s knowledge andexperience) no more than was necessary for his purpose pursuant to s. 25 of the Criminal Code: was that force necessary, reasonable andproportionate? [10] In a criminal trial, I must critically approach the evidence of the Defendant and Crown witnesses: 1. If I believe the evidence of the Defendant about his observations of what Mr. Russell and Csts.

Carter and Donahue were doing whenthe Defendant arrived and the other exculpatory evidence of how a reasonable person in the Defendant’s shoes would understand thoseobservations, I must acquit (R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 at paras. 27 -28). 2. Even if I do not believe the Defendant’s evidence about his observations of what Mr. Russell and Csts. Carter and Donahue weredoing when the Defendant arrived or the other exculpatory evidence of how a reasonable person in the Defendant’s shoes wouldunderstand those observations, but I am left with a reasonable doubt by that evidence, I must acquit (R. v.

W.(D.), (SCC),[1991] 1 S.C.R. 742 at paras. 27 -28)).

3. Even if I do not believe the Defendant’s evidence about his observations of what Mr. Russell and Csts. Carter and Donahue weredoing when the Defendant arrived or the other exculpatory evidence of how a reasonable person in the Defendant’s shoes wouldunderstand those observations, and even if I am not left with a reasonable doubt by it, I must still acquit the Defendant if the evidencewhich I do accept leaves me with a reasonable doubt about his guilt (R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 at paras.27 -28). The Evidence [11] The actions of Mr. Russell, Cst. Carter, Cst.

Donahue, and the Defendant have been intensively parsed throughout this trial.There were some significant discrepancies in the evidence that I must address before I can apply the legal principles pertaining to theDefendant’s use of force. I will focus on the scene that confronted the Defendant when he arrived at the location of Mr. Russell and Csts.Carter and Donahue. There are eight principal sources of that evidence: the Defendant, Cst. Carter, Cst. Donahue, Mr. Russell, Mr. Voldand his video, and Mr. Gillies and his video.

I have considered all the evidence but will summarize only the evidence which mostassisted me. 1. The Defendant [12] The Defendant asserts that Mr. Russell was struggling with Csts. Donahue and Carter when he arrived such that the three of themwere being “launched” back into a truck behind them into which they all crashed. The Defendant described the impact as “significant.”Cst. Carter was on one side of Mr. Russell with Cst. Donahue on the other. The Defendant believed that Mr. Russell initiated themovement into the truck. He saw Cst. Carter engaged with Mr. Russell in a headlock.

The Defendant testified that Csts. Carter andDonahue looked tired, “gasping”, “having a hard time breathing”, and that they had a look of urgency upon their faces. [13] The Defendant perceived that Csts. Donahue and Carter were relieved to see him. While Cst. Carter had Mr. Russell in aheadlock, the Defendant noted Mr. Russell’s left hand was free and he made a clenched fist. The Defendant testified that he saw a blackunidentified object in Mr. Russell’s hand. The Defendant described Cst. Carter as not having hold of Mr. Russell’s arm, which wasflailing in a “punching motion” or a “struggling motion.” Cst.

Carter was using both of his arms to execute the headlock. The Defendantperceived Mr. Russell to be more muscular and younger than Csts. Carter and Donahue and perceived him to be strong as evidenced bythe struggle itself. [14] The Defendant corrected the radio transcript, saying that Cst. McCall, not he, asked Cst. Donahue if everything was “10-04there” to which Cst. Donahue asked, “can we get one more here.” Cst. Donahue also thought it was Cst. McCall not the Defendant whoasked if everything was 10-04 but Cst. McCall himself testified that the Defendant asked that.

Upon listening to the recordings, the voiceof the person who asked if everything was “10-04 there” sounds much more like that of Cst. McCall in recording 663290 (which waserroneously transcribed with the Defendant’s call sign) than that of the Defendant in recording in recording 663300 but in the face of Cst.McCall’s denial, I cannot be certain it was Cst. McCall. I am satisfied it was not the Defendant. [15] The Defendant injured the knuckles on his right hand as shown in Tab 4 of Exhibit 1. They were visibly swollen but diagnosed asa contusion not a fracture.

He cancelled his bike ride the following day as result of his injured hand. 2. Cst. Carter [16] Cst. Carter’s description of the struggle differed from the Defendant’s description of the struggle. Cst. Carter described havingMr. Russell’s left arm while Cst. Donahue grabbed Mr. Russell’s right arm. Mr. Russell announced that he would not go to the ground.Cst. Carter and Cst. Donahue were trying to get Mr. Russell to the ground to effect the arrest, trying to put their weight on him to forcehim down but Mr. Russell was holding them up. Cst. Carter recalled trying to pull Mr.

Russell’s feet from under him without success.After a couple of minutes of this struggle, Cst. Carter heard the Defendant’s siren and the Defendant ran to them and used closed handstrikes to Mr. Russell’s face. Cst. Carter counted four strikes. After the fourth, the three police officers were able to get Mr. Russell tothe ground and handcuff him. Curiously, Cst. Carter never mentions having his arm around Mr. Russell’s head or neck or placing him ina headlock. [17] Cst. Carter did not recall speaking to either the Defendant or Cst. Donahue when each arrived to assist.

Rather, he recalled thatthe Defendant and Cst. Donahue saw that their colleague(

s) was/were in trouble and immediately came to assist. When the Defendantstruck Mr. Russell, Cst. Carter noted blood on the ground and on Cst. Carter’s vest. During the strikes, Cst. Carter did not see theDefendant’s blows land because he was behind Mr. Russell with his left arm, trying to get Mr. Russell to the ground. Cst. Carter assessedMr. Russell as “actively resistant and escalating” to the point that Cst. Carter believed he would become assaultive if let go. Cst. Carterpulled muscles in his left arm during the struggle. Cst. Carter described Mr.

Russell holding his cell phone in one hand initially andcould not recall what happened to it during the struggle. Cst. Carter rated this arrest as one of the “top ten” most difficult of his career.Cst. Carter indicated that he was starting to get tired by the time Cst. Donahue arrived and was “certainly” tired by the time theDefendant arrived but did not discuss gasping. Cst. Donahue did not speak to that level of fatigue. [18] Later that day, Cst. Carter messaged the Defendant: “sorry you got hurt”, and messaged his thanks to Cst. Donahue. Respondingto Cst.

Donahue’s message that “I didn’t want to use strikes yet but [the Defendant]’s were pretty effective”, Cst. Carter replied, “I washoping we could wrestle him down. He’s pretty strong.” [19] On cross-examination, Cst. Carter agreed that Mr. Russell had signalled his intention to assault Cst. Carter and noted theboundary between active resistant and assaultive is grey, but agreed with the proposition that Mr. Russell’s behaviour was bestcategorized as assaultive. Cst. Carter recalled Cst. Donahue’s back moving towards a parked vehicle, which concerned Cst. Carter whofeared that may cause Cst.

Donahue to lose his grip so Cst. Carter tried to pull Mr. Russell away. Cst. Carter did not believe that Mr.Russell had any opportunity to grab onto a vehicle during the struggle because Cst. Carter had Mr. Russell’s left arm and Cst. Donahuehad his right arm but he did worry about Cst. Donahue as they moved toward that vehicle. Cst. Carter did not see Mr. Russell’s fistsclenched. Once on the ground, he knelt on Mr. Russell’s legs to prevent Mr. Russell from kicking Cst. Donahue. Cst. Carter was gratefulfor the Defendant’s intervention and believed the outcome would have been worse without it. Cst.

Carter took pains to try to correct hisevidence on the second day of his testimony. He struck me as a witness who very much wanted to testify honestly and accurately.

3. Cst. Donahue [ 20 ] Cst. Donahue struck me as a measured and careful witness. Upon his arrival at the scene, he saw Cst. Carter and Mr. Russell next to a pickup truck and Cst. Carter was holding Mr. Russell’s left arm. Cst. Carter read the “approved screening device demand” and placed Mr. Russell under arrest for obstruction. Cst. Donahue placed his hands on Mr. Russell’s right wrist to attempt to handcuff him. Mr. Russell tensed up immediately. Cst. Donahue did not remember anything in Mr. Russell’s right hand. Cst. Donahue noted Mr. Russell trying to raise his arms with clenched fists and Cst.

Donahue attempted to straighten Mr. Russell’s arm to get the cuffs on. They moved a few feet toward a silver pickup truck and Cst. Donahue yelled at Mr. Russell that he was under arrest and to stop resisting. Mr. Russell continued to resist and at some point, put his right arm on the box of the pickup truck and was holding onto the side of the truck’s box. His grip was strong enough that Cst. Donahue was unable to get the hand off the truck. Cst. Donahue tried to get Mr. Russell off-balance by sweeping his legs out and again yelled at him to stop resisting. At one point, Mr.

Russell made a fist and raised his hand in an assaultive manner. Cst. Donahue kept his hand on Mr. Russell’s arm and continued to try to sweep his legs out. Mr. Russell eluded those attempts by moving his legs around and stepping over Cst. Donahue’s legs. Cst. Donahue then moved in front and attempted to interlace his hands behind Mr. Russell’s neck to drive his “nose” forward towards his “toes.” That was unsuccessful. [ 21 ] Cst. Donahue testified that during the struggle, another member (he initially testified it was the Defendant but then corrected himself and said it was Cst.

McCall) asked over the radio if they needed another member there and Cst. Donahue replied “can we get one more here.” He did not scream or yell – he “just asked for another car here.” He then heard a siren that meant another officer was coming to help. He was still unsuccessfully trying to gain control of Mr. Russell and to get his right arm off the pickup truck. He saw the Defendant arrive and run towards them. Mr. Russell’s arm was still on the truck and Cst. Donahue was still trying leg sweeps and trying to get the arm off the truck. During the leg sweeps, Mr. Russell’s feet were kicking back and hit Cst.

Donahue’s leg in a “counter” leg sweep. Mr. Russell was strong, belligerent and swearing. Cst. Donahue warned Mr. Russell that if he did not stop resisting, Cst. Donahue would apply the conducted energy weapon (CEW) but Mr. Russell was undaunted. Cst. Donahue “tried to hold” onto Mr. Russell’s arm as hard as he could. Mr. Russell’s strength surprised him and Cst. Donahue was concerned that the situation was escalating quickly. At one point, Cst. Donahue noted that nothing appeared to be working with Mr. Russell. Cst. Donahue perceived that Mr.

Russell clenched his fist when it came off the truck and that he was trying to punch them. Cst. Donahue held his arm so that Mr. Russell could not strike them or put his hand back on the truck. [ 22 ] With Cst. Carter on Mr. Russell’s left and Cst. Donahue on his right, Cst. Donahue recounted that the Defendant ran in front and grabbed Mr. Russell on his neck or shoulder somewhere and delivered three to four strikes with his right hand. Cst. Donahue testified that he still had Mr. Russell’s right arm and was trying to control it but that Mr. Russell was still actively resisting. Cst.

Donahue described after the Defendant’s strikes, “very quick” Mr. Russell leaned forward slightly and the four of them went forward to the ground. Cst. Donahue got his handcuff on Mr. Russell’s right arm and it took all three police officers to get the left handcuff on. Even after he was handcuffed, Mr. Russell was swearing and said words to the effect: “let’s do this” and “come on tough guy.” [ 23 ] Once they had Mr. Russell in handcuffs, Cst. Donahue (a former EHS attendant) testified that they checked on each other.

His knee was sore and he realized that his first aid tourniquet had been torn off its holster on his left leg. He also noted Cst. Carter’s handcuffs on the ground. He then looked at Mr. Russell and noted that he had blood on his face. They got him to the police cars and he observed two cuts on Mr. Russell’s forehead and some blood on his lip. 4. Tyler Russell [ 24 ] Mr. Russell testified that he was in downtown Kelowna visiting his brother and his brother’s friend. They were in and out of pubs drinking.

He did not exactly recall how much he had to drink but characterized the amount as “a little.” He described having “some rum” but no other alcohol but then allowed he “may have had a beer.” He also admitted to consuming a point or line of cocaine. He had given his brother the keys to the company vehicle because he was feeling the effects of the alcohol and did not want to drink and drive. A police officer wanted him to provide a breath sample to which he objected because he was not driving. He refused the officer’s demand for a sample, and the officer “kind of grabbed” him to put a handcuff on.

He believed it was his left arm and did not recall if a handcuff was applied or not. He recalled two officers present at that time. Mr. Russell described one officer on either arm trying to get his hands together to apply the handcuffs and he was forcing his hands apart to thwart the handcuffing. A third police officer arrived and he recalled “two or three, maybe four” punches to the face and his next memory was “being in a police vehicle.” [ 25 ] Mr. Russell denied fighting with the police but rather characterized his actions as trying to keep his hands apart to avoid being handcuffed.

The officers had their hands on his shoulders and forearms. He testified that he was never able to get their hands off his arms. He kept his feet flat on the ground to keep his balance and felt like the officers were trying to get him off balance but did not recall the police using leg sweeps. He used the word “existing” which I took to mean “resisting” the handcuffs and kept his stance to prevent being put to the ground. He described his hands being held by the first two officers “kind of half behind” his back when the third officer was punching him and he was unable to protect his face from the punches.

He also denied placing his hands on the side of a truck and refusing to let go. He denied kicking anyone. He denied that he would have continued to struggle to avoid arrest but for the Defendant’s punches. [ 26 ] When asked if he intended to start a fight if he broke free, he replied “absolutely not.” He testified that his hands would be completely balled or completely open and not (as demonstrated) holding his cell phone. He did not recall saying anything about wanting to fight the police. Other than the breath sample demand, he recalled nothing spoken to him by the first two officers.

The only sounds he recalled making were grunts and heavy breathing. [ 27 ] Mr. Russell had only a “slight memory” of his dealings with Cst. Davidson and did not know what they were about. Mr. Russell claimed he was denied medical attention despite requesting it repeatedly. He did not recall telling ambulance personnel that he had been stabbed in the buttocks, that he had taken methamphetamine, nor did he recall that he refused to permit them to assess his purported buttock injury or take his vital signs.

He also denied refusing treatment for his eye at the hospital and not permitting staff to examine his buttocks. He stated that he did not believe he told police he was stabbed in the buttocks but did admit lying to them about having put drugs in his buttocks. He said he told them that in order to get to the hospital. Mr. Russell described being transported to the hospital but being ushered out the back door without having seen a doctor. He worried that the second he left the hospital grounds he would be

“arrested and beat up again” so he ran to his mother’s home. [ 28 ] Mr. Russell admitted that in May of 2020 he was drinking a 26-ounce bottle of rum daily, which gave him a high tolerance for alcohol. He also admitted that he was using cocaine “now and again” during this period. He stated he was “not very” drunk and/or high. He did not recall if he had drugs in his wallet that day although drugs were recovered in his wallet, which he later admitted were his. Mr. Russell steadfastly denied being in the driver’s seat when Cst. Carter approached him. [ 29 ] Mr.

Russell’s injuries included a bloody nose, blood on his head and in his mouth, cuts to his temple and hands, red marks from the handcuffs, bruising covering his body (which he discovered the next day), dirt and swelling around his eye which he imagines happened when he was taken to the ground, and a cut slightly above his eyebrow which he photographed several days later. His injuries are seen in the photographs taken at three points: at the scene, at his mother’s home after he ran there from the hospital and at his mother’s home approximately three days later. [ 30 ] Mr.

Russell was seen by EHS paramedics at the RCMP station who noted lacerations above both eyes, a swollen nose, and dried blood on his face. Their report, (Tab 1 of Exhibit 16) references Mr. Russell’s claim that he had been stabbed in the buttock prior to his police interactions but he would not let the paramedics examine his buttock. Their report also references Mr. Russell’s statement to them that he had consumed a large amount of Xanax and meth at approximately 1900 hours. Eventually, they were able to take several readings for Mr. Russell, but not his temperature. Mr.

Russell denied taking Xanax, claiming to have never heard the term until a month later when he met police in the courthouse. He denied saying he had taken meth except that he told them he had put drugs in his butt to ensure he received medical attention. Mr. Russell denied telling the ambulance personnel that he had been stabbed in the buttock and that he had told them that. [ 31 ] Mr. Russell was taken to the hospital on the advice of a doctor. At the hospital, he again refused examination of his buttock but no blood was seen on his black sweatpants or on the stretcher.

He was again noted to have lacerations above his eyes and was agitated and uncooperative. He refused cleansing or suturing of his injuries. [ 32 ] Mr. Russell denied taking methamphetamine on May 30, 2020 but admitted he had taken some a few days before. He denied the pipe found in the backpack in the truck was his, attributing it to someone else. He admitted that the cocaine in his wallet was his. After he was confronted on cross-examination, Mr. Russell admitted that he told the truth to the police when describing his alcohol consumption as ten pints of beer and a tequila shot.

He also admitted sharing a bottle of rum with “random” people on the street - up to seven of them - with his share being about two ounces. His alcohol consumption started between 12:30 and 1:00 PM and ended about half an hour before his interaction with police – about a five to six hour period. [ 33 ] Mr. Russell was 30 years old and described by Cst. Donahue as an active healthy adult male, roughly 5 feet 11 inches tall and weighing approximately 200 pounds. Cst. Donahue, aged 51, was 6 feet 2 inches tall and 180 pounds. He was lean and a runner. Cst. Carter indicated that the booking form for Mr.

Russell revealed he was 177 centimetres tall (equivalent to 5 feet 10 inches) and weighed 95 kilograms (equivalent to 209 pounds). Cst. Carter, in his early 50s, was just shy of 6 feet tall and weighed 175 pounds. 5. Cameron Vold and his Video [ 34 ] Cameron Vold and his friend Isaiah were walking from the beach towards a restaurant when their attention was drawn to the attempted arrest by two police officers of Mr. Russell. The police were not succeeding. Mr. Vold began filming the incident on his cell phone. Mr. Vold was standing about 100 feet away.

He described seeing “two officers holding a guy’s arms behind his back and then a third officer arrived on the scene, jump out of his car, run over and take off the guy’s hat and start punching him in the face and then a car kinda got in my way so I didn’t see anything after that.” He estimated the number of punches as five or six. He described Mr. Russell’s hands being “held back behind his back” by the first two officers. He only heard Mr. Russell asking why he was being arrested. He did not see Mr. Russell attempt to hit, kick, or body check police. [ 35 ] The audio of Mr.

Vold’s video recording captures his friend Isaiah saying words to the effect, “that’s crazy – how much strength a human being has” with reference to Mr. Russell. Mr. Vold added a caption to his video on Snapchat “ooooooh dayummmmmm.” Mr. Vold volunteered his video to a news outlet the next day but did not report the incident to the police and provided the video to the police after police asked for it. [ 36 ] On cross-examination, Mr. Vold agreed that the Defendant did not initially run directly to Mr. Russell, but behind the other officer. Mr. Vold also agreed that he could not see Mr.

Russell’s hands in the video and only one police officer’s hand in front. He agreed that he could see about two punches connect with Mr. Russell. He also agreed that despite the punches that he saw, Mr. Russell was still not in handcuffs. 6. Mr. Gillies and his Video [ 37 ] Mr. Gillies was sitting down to dinner at a restaurant about 200 feet away when his attention was drawn to a commotion on the restaurant patio prompted by the arrest of Mr. Russell. Mr. Gillies looked down and saw Mr.

Russell “kind of being restrained by two police officers and then one came in running and just started striking the civilian.” He estimated maybe six strikes. He was watching for about a minute before the Defendant’s arrival and believes it took about 20 to 30 seconds to get Mr. Russell to the ground. He noted, “It was very quick.” When they got Mr. Russell to the ground, his view was obstructed by vehicles. He noted, “they finally just got him into the vehicle and that was that” but described nothing remarkable about that process. He did not see Mr. Russell hit, strike, or body check the police. He described Mr.

Russell as trying to get out of being held by the police – “a bit of a tussle.” [ 38 ] Mr. Gillies began filming the incident within 10 to 15 seconds after he began observing it because “it just seemed like the right thing to do.” He posted his video online, which prompted requests from news stations so he forwarded it to some news stations. He deleted the audio himself because it contained vulgar language and people cheering. He agreed that the police were not succeeding in their efforts to handcuff Mr. Russell who seemed big and much taller than Csts. Carter and Donahue who were struggling to restrain him.

He admitted to hearing grunts from someone engaged in the struggle. Only on cross-examination did Mr. Gillies relate that Mr. Russell continued to struggle after he was handcuffed and that it took time and trouble to get him into the police car. He noted the

frustrations arising from the George Floyd incident and expressed shock at the attempt to put Mr. Russell into the police car. He alsoagreed that Mr. Russell’s hands were in front to the side. He was unable to say how many punches made contact with Mr. Russell. Healso agreed that there was a break when the group came down “a bit” and then came back up when additional punches were delivered.He also noted that the first set of punches did not bring Mr. Russell under police control but that after the second set of strikes, he wasunder police control.

The Defendant’s Shoes [39] I must put myself into the Defendant’s shoes in order to assess the reasonableness of his actions. To do so, I must examine hisexperience and knowledge at the time of the events of May 30, 2020. I have the benefit of the Defendant’s evidence and of the materialsfrom which he had been trained. Of the three attending members, the Defendant was the second most recent recruit having begun hiscareer on March 17, 2017. Cst. Donahue joined a year later in 2018, also as a mature recruit, but with a background as a civilian memberof the RCMP, dispatcher, 911 operator, and as a paramedic. Cst.

Carter joined in 2009. The Defendant’s service had been entirely withinKelowna as general patrol. Prior to policing, the Defendant worked in medical sales and before that worked as a Registered PracticalNurse. In his late teens and early 20s, the Defendant enjoyed a “short-lived hockey career” and also had taken some boxing classes“more so for the cardio” but in which the mechanics of boxing were also taught. The Defendant is 5 feet 7 inches and his weightfluctuates between 175 and 180 pounds.

He admitted that he is the shortest male on his watch. [40] Exhibit 17 contains excerpts of the use of force training material in use during the time the Defendant attended his foundationaltraining at RCMP Depot at the end of 2016 and into 2017. Exhibit 22 contains his annual re-certification examinations and coursematerials for his 2018 and 2017 final examinations.

The Defendant had yet to receive his three-year recertification through the PacificRegional Training Centre. [41] The Defendant appears to have correctly answered all the IMIM Recertification questions in his 2018 examination including: • “If a subject is threatening, attempting or applying force to another, he/she is demonstrating which of the following behaviours:” towhich the Defendant answered “assaultive”; • “Which of the following intervention options is intended to stop the subject’s behaviour and has a higher probability of injury” towhich he replied “Physical Control Hard”; • He correctly identified as false the statement that “as peace officers, we are required to use the least intervention necessary tomanage risk, using only intervention options which will cause the least amount of harm or damage.” • He also correctly identified that “Subject behaviour, Officer Perceptions, Situational Factors and Tactical Considerationscombined will influence our decision” in the determination of the appropriate intervention to use. [42] The Defendant testified that he had been advised during his Watch’s briefing that the killing of George Floyd might haveramifications for policing generally.

The day before his encounter with Mr. Russell, he experienced such ramifications when a group ofmen in their 20s yelled at him that he was racist, a “fucking pig” and a “fucking piece of shit”, all the while filming him and impedinghis progress to his vehicle. They continued to block his vehicle until he put his emergency equipment on. He did not feel in grave danger,but registered the event as a reflection of the “mood that was circulating” in Kelowna at the time. [43] The Defendant did not know anything about Mr. Russell’s antecedents upon his arrival at the scene other than the police radiocommunications.

He heard Cst. Carter ask for back up but he was not assigned to the call at that time, as Cst. Donahue was closer. Hewas told that there was an intoxicated male associated to a white pickup truck. The Defendant returned to his parking spot and continuedto listen to the radio transmissions. After Cst. Donahue signalled his arrival, the Defendant felt relief but that relief was short-livedbecause it became apparent that Cst. Donahue was still searching for Cst. Carter. Cst. Donahue announced that he found Cst. Carter. Hethen heard Cst.

Donahue ask for “one more here.” The Defendant testified that he found this to be alarming for two reasons: Cst.Donahue was now the second member requesting backup, and Cst. Donahue’s voice sounded rushed and anxious. The Defendant drove“Code 3” to the scene with emergency lights and siren activated. He hoped that the emergency equipment would provide reassurance toCsts. Donahue and Carter as well as deterrence to Mr. Russell. [44] The Defendant testified that he knew both Csts. Donahue and Carter to be “older gentlemen.” I do not hold that against him.

Theabsence of updates from either also heightened his concern/risk assessment because he appreciated that it is “incredibly difficult” toprovide a radio update in the throes of a struggle. He understood that the struggle had been ongoing for two to two-and-one half minutesor more before he arrived on scene. [45] The Defendant was working in full uniform with his service pistol, baton and Oleoresin Capsicum (OC) spray. He was notcertified to carry a CEW. He knew that Cst. Donahue was certified to carry a CEW. [46] The Defendant testified that he saw a black object in Mr.

Russell’s clenched right fist, which was flailing in a punching orstruggling motion. He also observed a number of items on the ground when he exited his vehicle and approached the struggle: handcuffswith their ratchet open, a black piece of plastic that he recognized as a traffic officer’s vest or shirt microphone, and the gravel surface.The Defendant saw this debris field as significant evidence of the struggle and interpreted the opened handcuffs as an indication that hiscolleagues had unsuccessfully attempted to handcuff Mr. Russell. Analysis [47] Applying the reasoning from R. v.

W.(D.), [1991] 1 S.C.R. 742, : • If I believe the Defendant’s evidence and other exculpatory evidence showing that his actions were justified, I must acquit him. • Even if I do not believe that evidence, I must acquit him if I am left with a reasonable doubt about his guilt.

• Even if I disbelieve that evidence, or it does not leave me with a reasonable doubt, I must still acquit him if, based on the evidencewhich I do accept, I am not satisfied that the Crown has established each element of the offence beyond a reasonable doubt. In addition to the W.(D.) credibility formulation, if I am unable to decide whom I believe, I must acquit (R. v. C.W.H., (BC CA) at

part III(a). This is not a credibility contest in which I simply prefer one witness or version of events to another. Reliability and Truthfulness [48] Credibility has two components: reliability (such as a witness’s ability to see, hear, or remember events) and truthfulness (such asa witness’s willingness to tell the truth or conversely, their motive to lie or bias). Courts must look at both components when assessing awitness’s evidence (R. v. J.M., 2021 BCCA 263 at para. 53).

I will state at the outset that no class of witness or form of evidence ispresumptively reliable or trustworthy or unreliable or untrustworthy. I make my determinations based only on the evidence before me. [49] A great deal of time and attention has been spent on the video evidence captured by Cameron Vold and Tyson Gillies. In thecourse of this trial, we have watched those videos at speed and slowed down, all at once, and almost frame by frame. I have viewed themmany times since. The videos are helpful but neither video captures the entire event, nor does either video show us the Defendant’sperspective.

The videos all have limitations and like R. v. Partington, 2021 ABPC 220, these videos were filmed on cell phones, but froma distance and with vehicles obstructing much of the action. I am conscious of the cautions about “frame by frame” analysis described inR. v. Tsonos and McGuire, (November 23, 2022) Richmond, (BCPC) at paragraphs 114-115. The videos are two pieces of evidence thatare quite helpful but sadly, they do not endow the court with omniscience. [50] What is clear from the eight sources of evidence is that the events of May 30, 2020 unfolded rapidly.

No one witness was able toprovide a complete account for a variety of reasons. Csts. Carter and Donahue were rightly focused on their immediate need to controlMr. Russell. Mr. Russell was suffering from the effects of alcohol and cocaine as well as a single-mindedness to avoid being handcuffed.Mr. Gillies was far away in a vantage point above the altercation. Mr. Vold was at street level, closer to the altercation but vehiclesinterposed, blocking his vantage point. Mr.

Gillies acknowledged the proximity in time to the killing of George Floyd and the palpableanti-police sentiment that followed. [51] I accept that most of the eyewitnesses to the May 30 events were trying to be accurate and truthful. I found Cst. Donahue’sevidence particularly compelling. He struck me as a careful and measured witness. He has never used his CEW, baton, or OC spray. Infact, he accidentally experienced the electrical current when another member’s CEW connected with him rather than its intended target.He candidly admitted that his attempts to execute the “nose to toes” manoeuvre and to sweep Mr.

Russell’s legs failed. He carefullyreviewed the radio transmissions and did not over-state his communicated perception of the urgency of the situation. He messaged Cst.Carter that he did not want to use strikes yet but acknowledged that the Defendant’s strikes were “pretty effective.” He admitted that hecontemplated using his CEW had the Defendant’s efforts not succeeded in getting Mr. Russell under control because he believed that anassault was imminent. [52] Cst. Carter also tried to convey an accurate account of the events. He had spent the longest time with Mr. Russell and hadinitiated the arrest.

On May 25, 2022, Cst. Carter returned to court with corrections to his testimony from the preceding day as well ascopies of the drug analyst’s documentation with respect to the substances seized at the scene. I accept his characterization of Mr.Russell’s sobriety and behaviour. However, it was clear to me that Cst. Carter’s observations and recollection were compromised by theintensity of the encounter with Mr. Russell. Despite the clear depiction of him placing Mr. Russell in a headlock, Cst. Carter did notdescribe that part of the altercation.

I do not believe he was trying to deceive me but rather that the headlock was subsumed into thegeneral struggle in his own mind. [53] Mr. Russell was a poor witness from several perspectives. First, he was intoxicated and his memory of events appears to havebeen compromised by that intoxication. He did not recall significant aspects in the sequence of events including much of the interactionwith Cst. Davidson and his fight-seeking behaviour after he was handcuffed. Second, he lied to police at the time, denying that he was inthe driver’s seat.

He also lied to the police claiming to have concealed drugs in his rectum. Third, he attempted to minimize hisintoxication and initially denied he was “fired up” until challenged with his prior statement to police. Fourth, his perceptions of hisinteractions with the health care professionals that day were contradicted by the EHS and hospital records. Finally, his antipathy towardpolice was apparent throughout his evidence and reflected in his history of intense conflict with police.

Only where his evidence iscorroborated by other evidence such as his medical records can I accept his evidence. [54] Some aspects of the Defendant’s evidence suggested that he was trying be truthful such as his ready acceptance of the failure ofhis attempt to bring Mr. Russell’s “nose to his toes.” That statement was suitably self-deprecating. He acknowledged that his initial planto grab Mr. Russell’s legs was thwarted by the group’s movement backward. The Defendant appears to have moved quickly into thesituation, in accordance with his perception of the urgency of the situation.

I accept that the Defendant engaged in constant reassessmentof the risks at hand as the situation evolved as evidenced by his change in trajectory and the techniques he considered before settling onpunches, and his immediate cessation of the punches once control was achieved. [55] Other aspects of the Defendant’s evidence were troubling and contradicted by other evidence that I do accept including hischaracterization of Cst.

Donahue’s voice as he asked for back up as “abnormal” and “rushed and anxious.” Another example of theDefendant’s testimony conflicting with the other evidence was his description of the combatants “launching back” towards the vehicle.Neither Cst. Donahue nor Cst. Carter describes the movement in such dramatic terms. The Defendant’s claim that he saw a black objectin Mr. Russell’s hand is not believable. Cst. Carter, the member who spent the longest time with Mr. Russell and who initially saw Mr.Russell attempting to use his phone did not remember the phone being in Mr. Russell’s left hand during the struggle.

Cst. Donahue didnot recall the phone being in Mr. Russell’s right hand either and Mr. Russell said he had nothing in his hands but could not provide agood account of his phone. I would have expected Mr. Russell’s grip of the neighbouring truck bed with his right hand to be weaker werehe holding his cell phone. Even if Mr. Russell had his phone in his hand, I would not expect that to be immediately visible to theDefendant in the melee that he encountered. [56] Nonetheless, I do not find that the Defendant set out to deceive me on those points but rather is more likely trying to make sense

of a frenetic and fast-paced 12 second period long after the fact. I accept much of what he says he was thinking as he entered the fray. I also acknowledge that the Defendant’s

interpretation of events may be wrong and yet still reasonable. [ 57 ] There are several versions of what transpired. The Crown suggests that Csts. Carter and Donahue had Mr. Russell’s arms and thus his hands under control. That is how Mr. Vold described the situation: “I saw two officers holding a guy’s arms behind his back.” The mental image conjured by that submission is a static Mr. Russell bent forward with his arms behind him, with Cst. Donahue calmly holding onto his right arm while Cst. Carter calmly held onto his left arm. That image does not accord with the video evidence or with the evidence of Csts.

Donahue and Carter as to the fluidity of the situation. For example, at points, Mr. Russell’s right arm was far from under the control of Cst. Donahue. Mr. Russell was able to grab onto a neighbouring truck bed and Cst. Donahue was unable to break his grip for some time. When he did break the grip, Mr. Russell balled his fist as if to strike Cst. Carter. Cst. Donahue held his arm to prevent that. [ 58 ] Cst. Donahue and Cst. Carter were both attempting leg manoeuvres: Cst. Carter trying to trap his legs while Cst. Donahue attempted leg sweeps. In addition, Cst.

Donahue attempted the nose to toes manoeuvre and we see Cst. Carter placing Mr. Russell into a headlock. The sheer strength of Mr. Russell in moving himself and two trained police officers around the parked truck is apparent in the videos and is captured by Mr. Vold’s friend’s comment “it’s crazy how strong a human-being can be.” The Gillies video shows that movement and Cst. Donahue’s efforts to regain control over Mr. Russell’s arm and his failed attempt to bring Mr. Russell’s nose to his toes. [ 59 ] Until the Defendant testified, I, like Mr.

Vold, interpreted the video evidence of his early failed nose-to-toes attempt as an attempt by the Defendant to remove Mr. Russell’s hat, which made little or no sense to me. The Defendant’s explanation that he was hoping to achieve a nose-to-toes manoeuvre to upset Mr. Russell’s balance does make some sense in the context of the video evidence. It is clear that Cst. Donahue’s struggle to gain control over Mr. Russell’s arm continued as the Defendant’s vehicle arrived. The Crown says that Mr. Russell’s arms were still controlled throughout by Cst. Donahue and Cst.

Carter but the fluidity of situation as seen on the video and as described by Cst. Donahue speak to the lack of control that Cst. Donahue and Cst. Carter had over Mr. Russell. Although we do not see Mr. Russell arms moving freely in the videos, we do see Cst. Carter’s hands joined around Mr. Russell’s neck rather than around his left arm. [ 60 ] I find that upon the Defendant’s arrival, Mr. Russell was not yet in the control of Csts. Carter and Donahue. Cst. Carter was attempting to achieve that control by a headlock and leg manoeuvres. Mr. Russell was not subdued by those manoeuvres. Cst.

Carter’s two arms are visible around Mr. Russell’s neck although at one point, one of Cst. Carter’s arms separates and comes to his front. Cst. Donahue can be seen attempting leg manoeuvres in the videos also. I find that the Defendant administered a series of quick shorter punches towards Mr. Russell in two volleys separated very briefly by a brief cessation in Mr. Russell’s resistance to the arrest. I accept the Defendant’s characterization of four punches in each volley, two of which in each volley connected. I also accept that he prepared to deliver a final punch but aborted it when Mr.

Russell became compliant. Finally, I accept that the punches were not delivered with the full power of the Defendant’s body as taught in depot. By virtue of the positions of the parties, the Defendant’s punches were rapid and with less power from his other muscle groups but eventually effective in getting Mr. Russell handcuffed. Nonetheless, they were powerful enough to cause some injury to both Mr. Russell and the Defendant. Luckily, neither sustained serious life-changing injury. [ 61 ] I find that the sight of those punches was disturbing to Mr. Gillies, Mr.

Vold and Isaiah whose voice is heard saying, “whoa whoa whoa.” The fact that these punches were disturbing is not surprising in the context of this apparent three-to-one struggle and against the backdrop of the murder by a police officer of George Floyd days before. The fact that people are disturbed to see such violence is heartening. Apathy in the face of such violence would be much more troubling. [ 62 ] The issue I must determine is not whether the punches delivered by the Defendant were and are disturbing, but rather whether they were necessary, proportional and reasonable.

To assist me with that analysis, I have the benefit of two expert witnesses: Staff Sergeant McCoshen (“McCoshen”) of the RCMP for the Crown and retired Vancouver Police Sergeant Brad Fawcett (“Fawcett”) on behalf of the Defendant. Expert Evidence [ 63 ] Not surprisingly, the Crown expert opined that the Defendant’s use of force was not in accordance with his training and RCMP policy, not necessary, and not reasonable while the Defence expert opined that the Defendant’s use of force was in accordance with his training and RCMP policy, was necessary and was reasonable.

Much of the evidence centred on the RCMP Incident Management Intervention Model (the “IMIM) which is “a visual aid that helps the officer envision an event and explain why certain intervention methods were employed” (from Exhibit 5). The IMIM is a circular model that purports to match subject behaviour to available responses. There are few hard and fast lines within the model. [ 64 ] The experts disagreed about the appropriate characterization of Mr. Russell’s behaviour with McCoshen describing Mr. Russell as actively resistant while Fawcett cast Mr. Russell as assaultive.

They also differed in their assessment of the Defendant’s punches with McCoshen seeing them as “physical control: hard” while Fawcett saw them as “distractionary” and accordingly, “physical control: soft.” [ 65 ] I find that both witnesses tried to present a fair analysis of the May 30 events, but Fawcett’s evidence was more compelling for several reasons: first, Fawcett’s experience with “on the ground” police work on the streets of Vancouver as a supervisor was more recent and more relevant to the type of situation at bar.

McCoshen has been working in a more rarefied environment as a major crimes investigator and administrator for some years. Both men have been involved in the training of police and in the development of policy and training programs. I find that Fawcett’s familiarity with the physicality of police force was more recent and comprehensive. [ 66 ] Second, Fawcett’s analysis of the situation facing the Defendant engaged a more realistic lens than McCoshen’s. McCoshen’s insistence on verbal communication between the Defendant and Csts. Carter and Donahue was impractical in the circumstances. Even Csts.

Carter and Donahue did not engage in chatter before Cst. Donahue engaged with Mr. Russell. In addition, Mr. Russell was directed to stop resisting which served as a form of communication between the officers. It was apparent to the Defendant and to this court that Csts. Carter and Donahue did not have control of Mr. Russell and that Mr. Russell was struggling with them rather spectacularly. Fawcett

commented that he would be shocked if the Defendant had engaged in a conversation before going to the aid of Csts. Carter and Donahue rather than giving immediate assistance. If Fawcett were supervising a police officer who elected to chat with the other members before assisting, Fawcett would have directed that officer to assist and would then have had a supervisorial conversation with him after the fact to ensure that delay in assistance was not repeated. [ 67 ] Third, Fawcett gave a reasoned analysis of the quality of the Defendant’s punches.

He dissected the physical attributes of the punches, noting that many were thrown palms down with elbows outside the core and off balance. He characterized the punches as largely inefficient from a striking perspective.

McCoshen described the Defendant’s punches as “rear-handed” punches and agreed that they are not as hard as they would have been if all the muscle groups were engaged. [ 68 ] As a member of the RCMP, McCoshen likely had more intimate knowledge of the RCMP policy and training but Fawcett also had experience with the RCMP training and policy and had provided opinions for RCMP use of force both in court and coroner’s settings. [ 69 ] One feature of McCoshen’s evidence that seemed out of place was his assertion that only one or two strikes would qualify as distractionary.

He was unable to point to any external source to support that numeric limit. In light of the inherent gradations in the IMIM, his selection of a hard maximum for distractionary strikes seemed incongruent with the materials provided. Additionally, his evidence that more than a couple of strikes were not distractionary was predicated by the words “I would argue” which leaves the court with some unease as to his role.

McCoshen did not seem to measure distractionary strikes in terms of the power behind them but rather applied a simple numeric maximum not found in other materials. [ 70 ] Fawcett and McCoshen agreed on many aspects of their evidence including that the Defendant had a duty to assist Csts. Carter and Donahue. The differences in their evidence largely flowed from their analyses of Mr.

Russell’s behaviour as active resistant (McCoshen) or assaultive (Fawcett), the characterization of the Defendant’s punches as physical control: hard (McCoshen) or physical control soft/distractionary (Fawcett), and finally the appropriateness of the punches even if they were physical control hard. Legal Principles [ 71 ]

Section 25 sets out the parameters for the justification of police use of force: Protection of persons acting under authority 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. … [ 72 ]

Section 26 removes that justification for excessive force: Excessive force 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. [ 73 ] No two cases have identical factual underpinnings. Therefore, I must extract the principles from other cases that apply to the Defendant’s application of force to Mr. Russell. The Supreme Court of Canada provided guidance about the limits of police use of force in R. v.

Nasogaluak, 2010 SCC 6 at paragraphs 32-37 from which I discern that: • Police “do not have unlimited power to inflict harm on a person in the course of their duties” but rather their power is circumscribed by “the principles of proportionality, necessity, and reasonableness” (para 32). • The Defendant ’s use of force is only justified if he acted on reasonable and probable grounds and used “only as much force as is necessary in the circumstances” (para 34). • The analysis of the reasonableness of the Defendant’s beliefs requires a subjective/objective analysis (para 34). • I must not judge the Defendant’s actions “against a standard of perfection” remembering that “police engage in dangerous and demanding work and often have to react quickly to emergencies.” His actions “should be judged in light of these exigent circumstances" (para 35). [ 74 ] In the Nasogaluak case, Mr.

Nasogaluak sought a Charter remedy because of the force used during an arrest, which caused broken ribs and a punctured lung, which required emergency surgery. After a pursuit, police had to remove Mr. Nasogaluak forcibly from the vehicle and punched him three times in the head. The third punch was conceded to be unnecessary. The police pinned him to the ground and straddled him. Mr. Nasogaluak refused to present his hands for handcuffing while he was pinned on the ground so police punched him twice in the back, causing the injuries. Police did not include the use of force in their reports. Police ignored Mr.

Nasogaluak’s statements that he was hurt and that he could not breathe and the fact that Mr. Nasogaluak cried and was bent over moaning. [ 75 ] Like Mr. Russell, Mr. Nasogaluak resisted police. Unlike Mr. Nasogaluak, Mr. Russell was not pinned to the ground at the time the punches were delivered and the punches did not cause that degree of injury. The trial judge found that the first two punches were lawful “given Mr. Nasogaluak’s non-compliance with police orders and the need to subdue him and force him to the ground” however the third through fifth punches were excessive (at para 16).

Particularly excessive were the punches strong enough to break Mr. Nasogaluak’s ribs and puncture his lung. The Trial Judge reduced Mr. Nasogaluak’s sentence to reflect the excessive force and attendant injuries.

The Supreme Court of Canada found that even though, “these events occurred over a very brief period of time and that the police had to make hasty decisions to respond to the situation at hand”, the courts below did not err in finding “that the police used more force than was necessary in the circumstances” (para 37). [ 76 ] Last week, my colleague acquitted two police officers who struck a truck thief who had fled, jettisoning objects as he did so. Once apprehended, the suspect did not comply with police directions and took a step towards one member.

The suspect was sporting a man-purse which was accessible and from which police feared a weapon might be produced. No weapon was found. The suspect was taken to the ground and refused to produce his arms for handcuffing. He was well-known to the police involved and had no record for violence. There was a police dog (who mistakenly bit another member during the pursuit) at the ready. There were several members on scene, one with his service pistol drawn. Cst. McGuire delivered approximately “16 short strikes” to the suspect’s shoulder areas followed by three kicks to his upper body.

Another member punched the suspect three or four times in the head area but was not the subject of the case. Cst. Tsonos kicked at the suspect who eventually stopped resisting. The suspect was heard screaming. Cst. Tsonos gratuitously and unflatteringly commented on the suspect’s weight. The court described the force by both Csts. Tsonos and McGuire as “required, authorized, proportional, necessary, and reasonable.” Factually, there are many differences from the case at bar and one striking similarity.

Unlike the case at bar, the police had a great deal of knowledge about the suspect they were dealing with him, including his lack of any violent record. The struggle occurred at an alcove attached to a residence. There was no audience. Notably, like Mr. Russell, the suspect was strenuously resisting and was refusing to let the police apply handcuffs. [ 77 ] Some cases arise from police interactions with people who are not resisting. In Crampton v.

Walton , 2005 ABCA 81 , the plaintiff was in his kitchen making a sandwich, pulling a pickle out of its jar with a steak knife when a police tactical unit burst into his home in search of (non-existent) weapons and a marijuana grow operation. The police were heavily armed. The plaintiff briefly hesitated but soon complied with their direction to drop the knife. He was thrown to the ground and pinned for about 10 minutes while the search was undertaken, suffering injuries to his jaw, rotator cuff, dignity (having voided himself), and five broken ribs.

The plaintiff turned out to be the wrong person and the police intelligence “faulty.” In the civil context, the police bore the burden of proving on the balance of probabilities that their actions were authorized by law, based on reasonable grounds, and not employing unnecessary force. The court noted that police are “entitled to be wrong but they must act reasonably” (para 22). The reasonable grounds test required the court to “place itself in the shoes of the officer and assess whether reasonable grounds existed for the actions taken” (para 20, see also R. v. Berndt , 1999 BCCA 345 at para 35 and R. v.

Pompeo, 2014 BCCA 317 at para 36 ). The appeal court upheld the trial judge’s conclusions that the evidence did not support reasonable grounds for the police actions and that the force used was unnecessary. [ 78 ] In this case, the Crown does not take issue with the lawfulness of the arrest. I find that Mr. Russell was physically struggling against Csts. Carter and Donahue and that it appeared to the Defendant that Mr. Russell was attempting by his actions to apply force to Csts. Carter and Donahue. Given the fluidity of the situation and the lack of lasting control over Mr.

Russell, I find that the Defendant had reasonable grounds to believe that at any moment Mr. Russell could have broken free to effect his intention to apply force to Csts. Carter and Donahue. Actions speak louder than words. The fact that Cst. Donahue was actively considering using the CEW indicates the level of threat that he believed Mr. Russell posed. He believed an assault was imminent and feared that Mr. Russell would strike Cst. Carter. I accept the statement of Cst. Donahue both to Sgt. Scriver and in cross-examination that Mr. Russell was assaultive.

The RCMP training and IMIM suggest that use of a CEW is only available where the subject is assaultive. The fact that Cst. Donahue was not ready to deliver strikes does not mean that Mr. Russell was not assaultive. Cst. Donahue did testify that if the Defendant had not arrived, he was contemplating the CEW or elbow strikes that also constitute physical control: hard. The perspective of each police officer was unique but the fact that Cst.

Donahue perceived the need to consider an intermediate weapon or an elbow strike suggests that a higher level of force was needed. [ 79 ] The real issue is the appropriateness of the Defendant’s decision to punch Mr. Russell and his execution of those punches. Were they no more than necessary to subdue Mr. Russell so he could be handcuffed in the course of this arrest? Were they reasonable in the circumstances? [ 80 ] The case that presented the fact scenario closest to this case is R. v. Tranter , 2022 ONCJ 51 . In that case, a melee broke out in the police station as members attempted to book the complainant.

Their staff sergeant heard a special constable declare “this is going to be a shit show” and the complainant became combative with officers who were in the process of removing his handcuffs. One officer took the complainant to the ground and four officers were struggling to gain control. The staff sergeant then entered the fray and administered a series of four quick punches followed by a short pause and two more punches.

The court eschewed “excessive reliance on hindsight or second guessing” and acknowledged that police do not have a “free pass” but often do not enjoy the “luxury of time.” Like this case, the defendant was not acting out of anger, frustration, or impatience. Based on the circumstances apparent to St. Sgt. Tranter at the time, the court could not conclude beyond a reasonable doubt that the force used was objectively unnecessary, unreasonable or disproportionate or that the number of blows was excessive.

There, like here, it was unclear exactly how many blows landed and the six “short punches” were delivered in five to six seconds and stopped as soon as the risk was eliminated. [ 81 ] I note that the Defendant was unable to deliver maximum force with his punches by virtue of his positioning. He could not engage the full force of his muscles from his feet through his legs and torso to his arms. The punches depicted on the video were delivered quickly in two flurries. McCoshen opined that two punches might have been appropriate “distractionary” strikes but not more.

Fawcett declined to place a definitive upper limit to the number of strikes permitted for distraction. The training materials seem to accept “distractionary strikes” as a legitimate response to actively resistant parties but confusingly also characterize punches as “physical control – hard” which would only be available to assaultive parties.

[ 82 ] The space around Mr. Russell was circumscribed by the vehicles in the parking lot, as evidenced by the Defendant’s abandonment of his earlier “grab the legs” strategy. With Cst. Donahue on Mr. Russell’s right, Cst. Carter on his left, and the vehicle behind him, the Defendant had very little real estate with which to act. I accept that his nose-to-toes effort was completely ineffective. There may have been some way to wrestle Mr. Russell to the ground, but that way is not entirely clear to me. [ 83 ] Given the fluidity and duration of the struggle with Mr.

Russell, the limited ability of the Defendant to use all his muscle groups in delivering the punches, the limited access the Defendant had to effect change in or control Mr. Russell, and the ambiguity of the training materials with respect to punches, I cannot say that the Defendant’s punches were unreasonable. From the Defendant’s vantage, Csts. Carter and Donahue continued to struggle with a notably strong and uncooperative arrestee. The Defendant’s abortive “nose to toes” manoeuver was singularly unsuccessful. The Defendant’s initial inclination to take out Mr.

Russell’s legs from behind became unavailable when the group moved backward. Although the sheer number of punches that appear to have been thrown is startling, the evidence establishes that not all those punches connected with Mr. Russell. Cst. Carter counted four strikes that connected, Cst. Donahue counted three to four strikes, Mr. Russell himself only counted between two and four, and the Defendant counted three or four punches in the first volley of which two connected. Mr.

Russell then repeated “okay okay okay” which signalled surrender to the Defendant as his body seemed to yield momentarily and the Defendant describes trying to use a “rag doll” manoeuvre to get Mr. Russell to the ground before Mr. Russell rose up again and renewed his struggle. At that point, the Defendant recalls administering a further four punches of which two connected whereupon Mr. Russell’s body went limp. The Defendant was about to deliver a fifth blow which he aborted once Mr. Russell when limp.

From the video, it appeared to me as though eight or nine punches were thrown in two volleys, but I was unable to see how many connected. [ 84 ] I am satisfied that had Mr. Russell been fully controlled and unable to defend himself, no punches would have been necessary. I accept the Defendant’s evidence that no punches would have been delivered. I accept that the moment that Mr. Russell went to the ground, the Defendant aborted the punch he was about to throw. However, Mr. Russell’s lack of cooperation does not give the Defendant a blank cheque to deliver force.

As stated in Nasogaluak , police “do not have unlimited power to inflict harm on a person in the course of their duties” and the force used must be necessary, proportionate and reasonable. [ 85 ] The Defendant was not required to come up with the “perfect” technique to subdue Mr. Russell. In retrospect, it might have been preferable for the Defendant to slow things down even a fraction so that more options might have opened up given the fluidity of the situation. However, I should not engage in a morning-after-the fact analysis of what the Defendant could have done better.

I must restrict myself to the question at hand: were his actions proportional, necessary and reasonable? [ 86 ] Proportionality: Unlike Mr. Nasogaluak, Mr. Berndt, Mr. Crampton, Mr. Bencsetler, Misses Colangelo and Shynall, Mr. Campbell, Ms. Flett, or Mr. Yatim, Mr. Russell did not suffer profound consequences from the force used by the Defendant. The fact that the Defendant ceased punching Mr. Russell immediately on both occasions when it appeared Mr. Russell was becoming compliant suggests that the Defendant was measuring the force he used against the objective of perfecting the arrest and handcuffing of Mr.

Russell. Mr. Russell’s use of his legs and his hands/arms to avoid handcuffing included applying significant force to move himself and the police towards a vehicle, grabbing onto that vehicle such that Cst. Donahue had a difficult time disengaging his arm, making a fist after that arm was disengaged such that Cst. Donahue feared an imminent assault, kicking back and stepping over Cst. Donahue’s attempts at a leg sweep during which he made contact with Cst. Donahue’s leg, and avoiding two police attempts to destabilize him using the nose-to-toes manoeuvre plus a headlock.

Four less-than-full force punches are not disproportionate to the force applied by Mr. Russell in these circumstances. [ 87 ] Necessity: The use of force options available to the Defendant were severely circumscribed by the environment. In light of the assaultive nature of Mr. Russell, intermediate weapons could have been an option but the Defendant did not have a CEW. He could not deploy OC spray without contaminating Csts. Carter and Donahue and himself. A baton could just as easily incapacitate one of the other police officers as well as Mr. Russell and may well have caused greater injury.

He had no access to Mr. Russell’s legs once the group moved backward, and his frontal attempt at the nose-to-toes manoeuvre was an abject failure. The parked vehicles surrounding the group made access difficult and posed some danger to the police if Mr. Russell was again able to force the group against the vehicles. Members of the public posed other limitations – Cst. Donahue spoke of reticence to use the CEW in the presence of a child. McCoshen advocated changing strategies after one or two distractionary strikes, but Mr.

Russell’s short-lived or fake surrender suggested at least some partial success with that technique. Some force was needed to stop Mr. Russell’s aggression towards Csts. Donahue and Carter and the punches delivered met that need. Much like the situation in Bencsetler v. Vancouver (City) 2015, BCSC 1422 at paragraph 184 , the Defendant’s only other option in the circumstances was to wait until Mr. Russell, who like Mr.

Bencsetler, was “intoxicated and belligerent, decided it was time to comply with the officer's direction and co-operate in his lawful arrest.” [ 88 ] Reasonableness: Reasonableness comes into play in both s. 25 and s. 34. In these circumstances, the Defendant was not punching Mr. Russell to “punish him” as occurred in R. v. Basso , 2022 NSPC 3 or R. v. Partington , 2021 ABPC 220 . The Defendant was not being purposefully cruel to Mr. Russell – there had been no opportunity for the Defendant to get to know or dislike Mr. Russell in the short seconds before the punches began.

The Defendant articulated the reasons for his actions. He did not employ a sledgehammer to crack a nut. He is not held to a standard of perfection. The law recognizes the dangers of policing and suddenness with which those dangers can change. The Defendant had a duty to assist Csts. Carter and Donahue. He had few options. His punches were rapid and many but only four or so connected. He hurt himself in the process. His actions, though imperfect, were reasonable. Conclusion [ 89 ] If we could turn back time, I am sure Mr.

Russell wishes he could have just gone home after drinking and doing drugs with his brother on May 30, 2020 or at least stayed out of the driver’s seat of his employer’s vehicle. I am also sure that Cst. Carter wishes that he could have achieved his original objective of returning the vehicle to its owner and sending Mr. Russell on his way.

The Defendant may well wish he had taken a few extra moments to slow down the action when he came to the aid of his fellow police officers – not to stop and passively engage in friendly banter – but perhaps to look for new options to present themselves - options that would not have attracted the attention and cameras of onlookers – options that would have brought Mr. Russell into handcuffs without injury to the Defendant or Mr. Russell. But that is Monday-morning quarterbacking and we are not here to engage in that process.

[ 90 ] Instead, we are here to assess the Defendant’s punches to Mr. Russell in light of what Mr. Russell was doing and in light of what the Defendant knew of the situation at the time. I find that the Defendant had few options available to him. I find that Mr. Russell still posed a viable threat to Csts. Carter and Donahue. Mr. Russell was younger, stronger, empowered by liquor and drugs, and fixed in his determination to do whatever he needed to do to avoid being handcuffed. Although we cannot use subsequent events to assess the reasonableness of past events, Mr.

Russell’s continued belligerence and intention to fight with the police proved the police correct in their assessment that Mr. Russell would assault them the second he had the chance – and the only things standing between him and that chance were two men in their 50s who were tiring of the struggle. Therefore, the Defendant’s punches were necessary. They were not out of proportion to the risk posed by Mr. Russell in light of his size, determination, and intoxication.

In all the circumstances, they were reasonable - shocking but reasonable. [ 91 ] Accordingly, the Crown has not proved beyond a reasonable doubt that the Defendant was not justified pursuant to s. 25 in his punching of Mr. Russell. I find the Defendant not guilty. ________________________________ The Honourable Judge M.R. Armstrong Provincial Court of British Columbia