R v AM, 2022 ABKB 754

Court of King’s Bench of Alberta Citation: R v AM, 2022 ABKB 754 Date: 20221114 Docket: 210000592Q1 Registry: Calgary Between: His Majesty The King Crown - and – AM Young Person Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 110(1) . No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act .

NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Justice Anna Loparco _______________________________________________________ Contents Introduction . 3 Overview .. 3 Elements of the offence . 4 The evidence . 6

i) The Crown . 6

a) Police Detective Scott Guterson . 6

b) Police Constables Christopher Osmond and Joshua Desroches . 7

c) Mr. Ogunsanya . 9

d) Police Constable Vink . 10

e) Mr. Hardeep Dhaliwal 13

f) Mr. Jake Olson . 13

g) Sgt Harnett’s BWC footage . 14 ii) The Defence . 16

a) The Accused . 16 Position of the Parties . 21

i) The Crown . 21 ii) The Defence . 22 Analysis . 22

i) Initial findings of fact 22

a) The moments of initial flight 22

b) The berm .. 23

c) Falconridge Drive . 23 ii) The actus reus requirement for murder 26 iii) The mens rea requirement for murder 26 iv) Analysis of the direct evidence . 30

a) Credibility/reliability . 30

b) Findings concerning the Accused’s state of mind . 35

v) Causation . 49 vi) Alternate routes to criminal liability . 51 Conclusion . 54 Closing remarks . 55 Introduction [ 1 ] The Accused, Mr. A.M., is a young person who stands charged with unlawfully causing the death of Calgary Police Sergeant Andrew Harnett on December 31, 2020, thereby committing first degree murder contrary to the Criminal Code of Canada, RSC 1985, c C-46 . [ 2 ] The Accused pleaded not guilty to this offence and pleaded guilty to the lesser included offence of manslaughter: Code s 662(3).

Although the Accused sought to plead guilty to a culpable homicide as defined in s 222 of the Code, the plea was rejected by the Crown and the trial proceeded for first degree murder. Thus, the question is whether the Crown has established all the elements of the offence of murder beyond a reasonable doubt. Overview [ 3 ] The death of a highly respected police officer on New Year’s Eve during a routine traffic stop attracted the attention of both local and national media. Both members of the Calgary Police Department (“CPD”) and the public mourned the tragic loss of a decorated and exemplary officer.

[ 4 ] I provide the following general overview of the undisputed facts, which will be discussed in further detail later in these reasons. [ 5 ] Calgary Police Sergeant Andrew Harnett pulled over a vehicle being driven by the Accused on New Year’s Eve. The vehicle, a 2006 FX-35 Infiniti SUV (the “Vehicle”), was being operated without its headlights. The Accused could not provide Sgt Harnett with his driver’s licence as he was unable to find his wallet. He did, however, willingly provide his correct full name and address. [ 6 ] As the Accused stated that he was only in possession of his Class 7 (learner’

s) licence, Sgt Harnett also requested the identification of the adult, front seat passenger. This was provided and the passenger was identified as Mr. Amir Abdulrahman. A third passenger was observed in the backseat of the Vehicle but has never been identified. [ 7 ] Because the Accused indicated that he was driving a mechanic’s vehicle, Sgt Harnett took additional steps to ensure the Accused’s identity and vehicle ownership.

This included taking down the Accused’s phone number, as well as getting the Accused to open the driver’s side door so he could record the Vehicle Identification Number (“VIN”). [ 8 ] As Sgt Harnett was alone on patrol, he was joined shortly after the traffic stop by two CPD Constables who were in the vicinity- Csts Desroches and Osmond. The Constables arrived together in a police cruiser while Sgt Harnett was engaging with the Accused.

They approached the Vehicle and briefly looked inside. [ 9 ] Upon obtaining the initial information on the Vehicle and its occupants, all three officers returned to their respective police cruisers and Sgt Harnett proceeded to process the names of the Accused and the front seat passenger using computer equipment inside of his police cruiser. For reasons discussed more fully below, the amount of time it took to process this information took much longer than usual. [ 10 ] After having processed the names of the two identified individuals, it became known that Mr.

Abdulrahman was wanted on Alberta radius warrants for certain offences. His search also revealed a historical entry on CPIC relating to drugs in 2019. The officers decided that Sgt Harnett would approach the Accused and serve him with tickets issued under the Traffic Safety Act , RSA 2000, c T-6 for the driving infractions; Cst Desroches would approach the passenger side of the Vehicle and arrest Mr. Abdulrahman pursuant to the outstanding warrants. The audio recorded by the Body Worn Camera (“BWC”) footage worn by the officers indicates that Mr.

Abdulrahman would not have been aware of the outstanding warrants for his arrest. [ 11 ] Cst Desroches approached the vehicle and knocked on the front passenger side window and asked Mr. Abdulrahman to confirm his identity. Mr. Abdulrahman did so, following which Cst Desroches asked him to open the door. Once the door was open, the Vehicle took flight. [ 12 ] Sgt Harnett approached the driver’s side door seconds after Cst Desroches began to engage with Mr. Abdulrahman. As Sgt Harnett approached, the Accused suddenly placed the car into gear and drove off.

The Accused’s window was open, and Sgt Harnett grabbed the Vehicle’s front door, apparently to prevent flight. [ 13 ] The Vehicle had initially been pulled over in the parking lot adjacent to a Petro-Canada gas station. Various video footage played at trial show that the Vehicle proceeded slightly to the left and then forward (northbound) out of the parking lot. It went over a curb and became hung up momentarily on a snow berm and then executed a sharp right-hand turn (eastbound) onto a major roadway - Falconridge Drive.

While travelling eastbound, Sgt Harnett lost his hold on the Vehicle, and fell onto the roadway where he was struck by an oncoming car. He died later that evening in hospital. [ 14 ] After Sgt Harnett fell from the Vehicle, the Accused continued his flight. The abandoned Vehicle was found the following day. [ 15 ] As stated above, the Accused was a young offender. He turned 18 eleven days after the incident. Elements of the offence [ 16 ] By an Agreed Statement of Facts (exhibit 9), many of the elements of murder that the Crown must prove beyond a reasonable doubt have been already established.

I review each of these elements, below. [ 17 ] First, there is no doubt as to the identification of the Accused. He admits through the Agreed Statement of Facts that he is the individual depicted in the BWC footage of Sgt Harnett as the driver of the Vehicle. [ 18 ] Second, the time and place of the offence are admitted in the Agreed Statement of Facts. The traffic stop commenced at 10:19 pm. Sgt Harnett was transported to Foothills Hospital after being struck by the oncoming car and was declared dead at 11:45 pm on December 31, 2020. [ 19 ] In this case, there was an intervening act.

After Sgt Harnett fell away from the Vehicle, he was struck by an oncoming (westbound) car operated by Mr. Ogunsanya. According to the Agreed Statement of Facts, due to the collision with Mr. Ogunsanya’s oncoming vehicle, Sgt Harnett suffered significant internal injuries listed as multiple blunt force trauma.

These injuries included but were not limited to: transection/laceration of his spine as well as fatal internal blood loss due to the laceration of his abdominal aorta. [ 20 ] Notwithstanding his plea to manslaughter the Accused took the position during closing argument that, if prosecuted under s 229(a)(ii) of the Code , the second collision severed the causal connection between his act and Sgt Harnett’s death [transcript September 29, 2022 page 41 lines 5 – 11].

In my view, the impact by the second vehicle may bear upon this Court’s analysis as to whether the Accused knew the bodily harm was likely to cause death; however, a causation argument is misplaced given the facts at bar, and as discussed further below.

[ 21 ] The Agreed Statement of Facts also acknowledges that Sgt Harnett was working in his capacity as a police officer at all times during the traffic stop. I note from the BWC footage that all three officers present during the traffic stop were wearing their CPD uniforms, which clearly identifies them as police officers. In addition, both police cruisers were marked with the CPD insignia. [ 22 ] The fact that the Accused knew that Sgt Harnett was acting in his capacity as a member of the CPD is important in relation to the nature of the charge facing the Accused.

Murder is classified as “first degree murder” when it is planned and deliberate: Code , s 231(2). Murder can also be classified as first-degree murder based on the identity of the deceased, even absent evidence of planning and deliberation. Section 231(4) of the Code provides that: Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is (

a) a police officer…acting in the course of his duties; […] [ 23 ] The special status ascribed to police officers for the purposes of a constructive first-degree murder charge reflects the unique position members of law enforcement hold in society. In discussing the purpose behind - and the constitutionality of - this provision, the Ontario Court of Appeal in R v Collins , 48 CCC (3d) 343 held as follows, at para 82: … [law enforcement] occupations are extremely dangerous, having regard to the persons with whom they are in frequent contact by reason of the nature of their occupations.

The classification of the murder of such persons as first degree murder with the heavier penalty consequent thereon is obviously designed as an additional deterrent to potential murderers. It might be rationalized that the murder of a person whose obligation it is to maintain law and order carries with it an added moral culpability and requires a heavier deterrent to protect the public interest. [ 24 ] The Accused raises no argument about the applicability of s 231(4).

Rather, the chief issue during trial was whether the Crown has demonstrated that the Accused had the required mens rea for murder. [ 25 ] The Crown argues that the definition of murder under s 229(

a) of the Code is applicable in this instance. It takes the position that the Accused caused the death of Sgt Harnett by either: (

i) meaning to cause Sgt Harnett’s death; or (ii) meaning to cause Sgt Harnett bodily harm that the Accused knew was likely to cause his death and was reckless whether death ensued. [ 26 ] Throughout trial, the Crown focused its argument on s 229(a)(ii), taking the position that the evidence establishes each element of the offence beyond a reasonable doubt. Conversely, the Accused argues that the Crown has failed to demonstrate that he had the requisite intent for murder. The evidence

i) The Crown [ 27 ] The Crown called seven witnesses. In my view, each of them testified in a forthright and cooperative manner. Their evidence is summarized as follows.

a) Police Detective Scott Guterson [ 28 ] Det. Guterson was the CPD officer assigned to the investigation into the death of Sgt Harnett. The BWC footage of Sgt Harnett and Csts Desroches and Osmond was entered through Det Guterson (Exhibit 1). Security or CCTV footage of nearby businesses, including footage from the adjacent McDonald’s drive through, the Petro-Canada parking lot, and a business called India Jewelers located on Falconridge Drive was also tendered through the Detective (Exhibit 3).

Certain portions of these videos were reduced to still photographs, also entered as exhibits, produced by agreement. [ 29 ] Det Guterson provided an overview of where the Vehicle was initially pulled over in the Petro-Canada parking lot in the community of Falconridge, as well as the flight path of the Vehicle as it exited the parking lot and procced eastbound down Falconridge Drive. The area is best described aa a mix of residential with smaller commercial establishments.

He also detailed how and where police subsequently located the Vehicle, which had been abandoned a short distance from the crime scene. [ 30 ] During cross-examination, Det Guterson confirmed that from a review of the BWC footage, the first half-hour of the traffic stop proceeded routinely, aside from the fact that it took longer than usual to process the information because one of the police databases was down.

He agreed that the incident went “off the rails” when the Accused drove away and that the entire flight lasted just 36 seconds from when the Vehicle took off to the point where Sgt Harnett fell from the Vehicle. He agreed that the scene was “very chaotic” and that during the flight, one of the passengers yelled at the Accused to “go go go”. [ 31 ] Det Guterson denied that there was any specific CPD policy addressing whether police should or should not grab onto a vehicle or wrestle with a driver during a traffic stop.

Rather, he stated that such decision to engage in this fashion would depend on the judgment of the officer and what they perceived the situation to be at the time the decision was made. Finally, the Detective agreed that Sgt Harnett had obtained the name, address, and birthday of the Accused, and that any tickets related to the traffic infractions could have been mailed to the Accused’s address as opposed to being served personally.

b) Police Constables Christopher Osmond and Joshua Desroches [ 32 ] Calgary Police Constables Osmond and Desroches provided a first-hand descriptive account of the events during the traffic stop and subsequent flight. The Constables were working in the Falconridge area and attended the stop at the Petro-Canada parking lot as Sgt Harnett was on patrol alone and they thought it prudent to provide backup. They parked along the right side of Sgt Harnett’s cruiser, and behind the Vehicle. Each Constable was wearing a functioning BWC, the footage of which was tendered as an exhibit, as described above.

Absent some minor details, both officers’ viva voce evidence was the same as the evidence from the BWC footage. [ 33 ] Both Constables recalled arriving at the scene after the traffic stop had been initiated. Both agreed that processing the individuals’ names took longer than usual due to issues with the computer system. When it became known that the front seat passenger had outstanding warrants, the officers confirmed that they established a plan, whereby Cst Desroches would approach the passenger side of the Vehicle to arrest Mr.

Abdulrahman, Sgt Harnett would serve the Accused with a ticket for violating the Traffic Safety Act , and Cst Osmond would stand back in the position as “cover officer” since Cst Desroches was still in training. [ 34 ] Cst Osmond testified that he has been a member of the CPD for nine years, the entirety of which has been spent in District 5, which includes the Falconridge area. Sgt Harnett had acted as his supervisor for a period of this time. [ 35 ] According to Cst Osmond, Cst Desroches had just begun to engage with Mr.

Abdulrahman when the Vehicle sped off at a “high rate of speed” toward the parking lot exit. Cst Osmond stated that he was momentarily “stunned” when he realized that Sgt Harnett was not standing on the pavement beside the Vehicle as it sped off. [ 36 ] He recalled chasing after the Vehicle on foot and approaching the Vehicle when it was temporarily hung up on the icy snow mound or berm. He recalled that both himself and officer Desroches ran to the Vehicle with their service pistols in the “low ready direction”, meaning they were pointed about four to five feet in front of them.

He was yelling at the Accused to “stop the Vehicle”. [ 37 ] Upon drawing the conclusion that shooting at the Vehicle would not assist in stopping it from fleeing, he directed Cst Desroches to not shoot and both officers re-holstered their weapons. The Vehicle eventually regained its traction and headed eastbound down Falconridge Drive. Cst Osmond indicated that he dispatched that Sgt Harnett was being dragged from a Vehicle and shared his location.

He then turned and sprinted back to his own police cruiser to pursue the fleeing Vehicle. [ 38 ] As the cruiser rounded a slight bend on Falconridge Drive, he estimated his speed to be more than 100 kph. Cst Osmond recalled seeing a civilian standing on the road attempting to waive them down. As he brought his cruiser to a stop, he could see Sgt Harnett lying in the roadway approximately 30-40 feet behind the civilian.

Cst Osmond confirmed that after the Vehicle initially took off, he did not see Sgt Harnett again until encountering him, laying in an unresponsive state, on Falconridge Drive. [ 39 ] Csts Osmond and Desroches immediately ran to the aid of Sgt Harnett. Although he was breathing, he was not moving. Cst Osmond indicated that while stabilizing Sgt Harnett, he requested an ambulance. [ 40 ] Once Sgt Harnett had been placed in the ambulance, Cst Osmond spoke to the civilian driver. As he noticed that the driver was in extreme distress or shock, he requested another ambulance.

He also noted that the civilian driver’s vehicle had body damage. [ 41 ] On cross-examination, Cst Osmond indicated that he did not observe anything unusual going on inside of the Vehicle while the officers were situated in their respective cruisers awaiting the results of the various computer checks. He also agreed that just prior to flight, Cst Desroches knocked on the passenger side window, requesting that Mr. Abdulrahman roll down the window and began discussing the outstanding warrants.

He confirmed that the BWC footage depicts that Cst Desroches reached the Vehicle first and had already begun engaging with Mr. Abdulrahman prior to Sgt Harnett having the opportunity to engage with the Accused. He denied that there was any plan for the officers to approach the Vehicle at precisely the same time. [ 42 ] Cst Osmond further indicated that he has never otherwise been directly involved in an incident where a police officer became attached or otherwise grabbed on to a moving vehicle.

He stated that the closest he ever got the to the Vehicle during its flight was when it became temporarily hung up on the icy berm, and that at this point, he would have been 15-20 feet from the Vehicle. [ 43 ] Finally, Cst Osmond agreed that CPD training with respect to conducting traffic stops includes ensuring safety as a paramount goal.

He further confirmed that officer training instructs that police should engage in pursuit only when the seriousness of the offence outweighs the level of danger, and that alternate measures should be looked to first. [ 44 ] Cst Desroches began his career with CPD in March of 2020. He also worked in District 5 and was in his final weeks of training as a recruit. He was working alongside his mentor, Cst Osmond, at the time of the incident. [ 45 ] Cst Desroches gave a similar account of the evening in question. He stated that after the plan to arrest Mr.

Abdulrahman was made, he approached the right side of the Vehicle and asked the passenger to open the door. As the passenger did so, Cst Desroches began informing Mr. Abdulrahman about his outstanding warrants. At this point, the Vehicle suddenly took off, with the passenger door slamming shut in the process.

A review of Cst Desroches’ BWC footage during this stage of the traffic stop clearly displays the Accused placing the Vehicle into gear as the Constable begins to mention the warrants and as Sgt Harnett reaches the driver’s side window. [ 46 ] As with Cst Osmond, Cst Desroches expressed surprise at not seeing Sgt Harnett standing across from him after the Vehicle took flight. He indicated that from his vantage point, as the Vehicle sped off, he eventually saw that Sgt Harnett was attached to it.

He indicated that while it was hard to determine, he believed that Sgt Harnett’s feet may have been elevated off the ground at this point. [ 47 ] He recalled unholstering his weapon and giving chase on foot toward the Vehicle which had by this point become hung up on the snow berm. He described his firearm as being held “at the ready” by this point. As he was giving chase, he was verbally commanding the Accused to stop the Vehicle. He stated that the Vehicle quickly freed itself from the berm and continued down Falconridge Drive, with Sgt Harnett being “dragged” alongside it.

He described how, while the Vehicle was stuck on the berm, its tires were “spinning out”. When it finally regained traction, it accelerated at a high rate “as if the pedal [was] punched to the floor”.

[48] Cst Desroches ran with Cst Osmond back to their police cruiser to give chase. He estimated their speed at upwards of 80 kphwhile in pursuit. [49] He recounted that upon driving into the slight bend in the road, he immediately saw Sgt Harnett in the roadway and observeda nearby vehicle, which was stopped. [50] When he approached Sgt Harnett, the nature of his injuries was not apparent, but Cst Desroches suspected a spinal injury andthus tried to stabilize his head and neck. As he moved his hands from the back of Sgt Harnett’s head, he noted that they were soaked inblood.

He continued to speak to Sgt Harnett and stabilize his neck while waiting for ambulance to arrive. [51] He described Falconridge Drive as a “very busy road” and recalled how Cst Osmond was attempting to safely direct trafficaround the scene to prevent any further injury. He stated it was “a bit of chaos”. [52] On cross-examination Cst Desroches agreed that the officers had initially planned to approach the Vehicle at the same time inorder not to “spook” the occupants.

He agreed that through the window he was able to observe that Sgt Harnett’s arm and half of hisbody were positioned in over the driver’s side window. He also agreed that Sgt Harnett’s right arm and torso were still leaning into thewindow as the Vehicle exited out of the parking lot, heading east. Again, Cst Desroches’ evidence at trial was largely consistent with hisBWC footage.

c) Mr. Ogunsanya [53] Mr. Ogunsanya was driving his vehicle, a 2006 Toyota Corolla, to his in-laws on the night in question. He stated that as hewas heading westbound down Falconridge Drive he noticed a vehicle coming toward him at a speed, which was “moving faster thannormal”. He estimated the speed as somewhere between 60-70 kph. He described seeing a black object that he could not identify, comingfrom the eastbound speeding vehicle toward his vehicle as it passed by. He applied his brakes but still heard and felt something hit hiscar.

At first, he believed the occupants of the suspect Vehicle threw something from their car. When he exited his car, he realized thatthe object he had impacted was a police officer. He described shaking and crying and stated he went back to his car to dial 911. He thengot the attention of Constables Desroches and Osmond as they drove by. He stated that the suspect Vehicle did not stop after Sgt Harnettfell; it continued to proceed east down the road. He further testified that he was driving fully in his own (westbound) lane at the time ofthe collision. [54] As discussed below, Mr.

Ogunsanya was not charged in relation to the collision, with the incident being described as“unavoidable”. I stress this point not only in relation to causation, but to express to Mr. Ogunsanya that what occurred that evening wasin no way his fault. I say this given the fact that he was visibly and understandably distressed during his testimony, and I wish toemphasize that he is not to blame in any way for what happened. I wish to thank him for providing his testimony, which required him torelive what was a profoundly traumatic experience.

d) Police Constable Vink [55] Cst Vink was called by the Crown as an expert and qualified in the area of motor vehicle collision analysis and reconstruction.His curriculum vitae was examined during the voir dire regarding his qualifications as an expert. The Accused did not take the positionthat Cst Vink lacked the qualifications to provide expert evidence; he argued instead that any concerns would go to weight as opposed toadmissibility. [56] I will briefly review Cst Vink’s training and qualifications as an expert in this field.

I note that he has been qualified toprovide expert opinion evidence on two prior occasions in August of 2021 in Provincial Court. He agreed that for his first appearance asan expert, his credentials were challenged and that the second time he was tendered as an expert by consent. On cross-examination CstVink agreed he has never testified for the defence. [57] Cst Vink began his career with CPD in 1999, joining the Traffic Response Unit in 2002, a role which entailed attending atserious crash scenes and working alongside collision reconstructionists.

In 2014, he transferred into the Collision Reconstruction Unit,which involved analyzing materials from crash scenes. As part of his ongoing education, Cst Vink completed a Collision ScenePhotography course, as well as Advanced Collision Investigation Levels 2, 3, and 4. He indicated that Level 4 is the highest level oftraining worldwide and that he currently is an instructor for the Level 2 course. He also took courses in tire mechanics and tire forensicanalysis.

His role in the CPD is to examine the science behind collisions and determine how they took place. [58] Based upon his experience and training, as well as the requirements for relevance and necessity, given the technical nature ofthis field, and given the absence of any exclusionary rule, I was satisfied that the criteria for admissibility provided in R v Mohan, (SCC), [1994] 2 SCR 9 had been established.

Having found that Cst Vink’s evidence is properly admissible expert opinionevidence, any arguments concerning independence and/or partiality given that he is a member of CPD are properly dealt with in relationto the weight to be given to such evidence: White v Abbott, 2015 SCC 23, at para 40. [59] Cst Vink was involved in providing a collision reconstruction report concerning the death of Sgt Harnett (the “Report”). ThisReport was tendered into evidence as exhibit 5. His Report contains several pertinent findings.

He concluded that commencing at thepoint of its initial flight, the Vehicle travelled 427 meters to Sgt Harnett’s final rest position. He stated that this distance could be brokendown into two segments. First, the distance from the initial takeoff position to where the Vehicle temporarily became stuck up on theberm totaled 57 meters.

Once it regained traction, it travelled a further 370 meters to Sgt Harnett’s final rest position. [60] Cst Vink’s Report also drew attention to the markings which he indicated were tire tracks demonstrating the Vehicle’s path oftravel and scuff marks that would have been left by Sgt Harnett’s footwear. He noted that the scuff marks indicated a dragging-type ofmotion, meaning that Sgt Harnett’s feet were not solidly planted under him.

In my view, these “dragging” marks are clearly visible in CstVink’s photograph binder, notably at photographs 5-7 and 13, which were made prior to the Vehicle getting stuck on the berm. I makethis observation as it relates to the testimony of other witnesses, concerning the placement of Sgt Harnett’s feet during flight. These

markings also appear on Falconridge Drive (notably at photograph 17). Photos of the Vehicle show that it does not have running boards, although it does have a slight trim panel just above the undercarriage. [ 61 ] Cst Vink opined that the scuff marks indicated that Sgt Harnett’s footwear crossed over the centerline dividing traffic on Falconridge Drive, and this crossing could have occurred with the Vehicle door being swung open, thus propelling Sgt Harnett further from the Vehicle, as the tire tracks did not indicate that the Vehicle itself crossed over.

He stated that ultimately the markings demonstrated that Sgt Harnett rolled or tumbled across the road surface into the westbound traffic lane. [ 62 ] Cst Vink’s examination of the Toyota led him to conclude that Sgt Harnett impacted the driver’s lower side portion of that car, given where the damage was located, as well as the underside of this vehicle, given the existence of Sgt Harnett’s hair and other biological transfer on the undercarriage. [ 63 ] Given the lack of damage to the Infiniti Vehicle, outside of some front-end damage that may have been caused by the berm, coupled with his examination of Sgt Harnett’s uniform, Cst Vink concluded that that Sgt Harnett had been grabbing on to the Vehicle, as opposed to having had some part of his uniform or duty belt stuck to it.

He also confirmed that the Vehicle appeared to be in good working order, and that its brakes were functioning properly. The driver’s side of the Vehicle had markings on it consistent with a person having rubbed up against the Vehicle. [ 64 ] In his Report

summary, Cst Vink identified three “major factors” in the collision, which were: (

i) the Vehicle driving away and travelling at a high rate of speed; (ii) Sgt Harnett grabbing the Vehicle and holding on while the Accused drove away, and; (iii) Sgt Harnett being impacted by the Toyota while on the roadway. [ 65 ] Cst Vink also conducted a speed analysis using three techniques.

The first involved the distance traveled as against the time lapse displayed on Sgt Harnett’s BWC footage, which indicated that the average speed of the Vehicle once it exited the berm was 58 kph. [ 66 ] The second method utilized images of the speedometer and tachometer of the Vehicle taken from a still photo produced from Sgt Harnett’s BWC footage.

It indicated that just prior to the point of Sgt Harnett becoming dislodged, the Vehicle was travelling at approximately 97 kph. [ 67 ] The third method utilized a time/distance analysis and was based upon CCTV footage from India Jewelers, which is a fixed point on the roadway, and measured against visual markers on the roadway.

The distance between markers was measured against the frame rate of the CCTV footage and captured a speed of 76 kph. [ 68 ] The speed limit on Falconridge Drive is 50 kph. [ 69 ] As mentioned above, Cst Vink concluded that given the mechanics of travel (i.e., distance, speed, lighting, encountering an unexpected hazard, normal human reaction time) and method of detachment, the westbound driver (Mr. Ogunsanya) could not have done anything to avoid colliding with Sgt Harnett. Cst Vink opined that the driver of the Toyota was likely travelling at or below the speed limit at the time of impact.

During cross-examination, Cst Vink acknowledged that his conclusions about the Toyota being unable to avoid the collision were not based upon specific calculations performed as a part of his analysis. [ 70 ] On cross-examination, portions of Sgt Harnett’s BWC footage were reviewed frame-by-frame. Cst Vink agreed that it is difficult from the video footage itself to determine what exactly Sgt Harnett was grabbing onto.

At some points it appeared as though he was grabbing onto the door frame or handle, and at others it looked like he had his arm wrapped inside the door. [ 71 ] Cst Vink confirmed that throughout the flight, there was an ongoing physical struggle between the Accused and Sgt Harnett and that blows may have been delivered by either party, although it was unclear from the BWC footage.

He also confirmed that he did not recall any point in the footage where Sgt Harnett took the wheel of the Vehicle. [ 72 ] In reviewing human factors in crash causation, Cst Vink agreed that youth and inexperience are both factors that may be considered. As well, he agreed that interference with driving or distracted driving are factors which may impact a driver’s perception. [ 73 ] Cst Vink maintained that his markings indicating scuffing made by footwear were accurate, despite attempts by Defence Counsel to undermine his opinion on cross-examination.

Cst Vink insisted that the later scuff marks were consistent with earlier ones. [ 74 ] In reviewing this testimony, I respectfully disagree with Defence Counsel’s submissions that Cst Vink “…agreed with the suggestion put to him, and it was in his Report, that Sergeant Harnett's feet never crossed the centreline”: [transcript September 29, 2022, page 44 line 41 – page 45 line 1]. Rather, I note Cst Vink’s testimony to the opposite: [transcript January 31, page 62, lines 21-25].

This is also indicated in his Report, where Cst Vink states that following the exit eastbound onto Falconridge Drive “these scuffs waivered from the eastbound lanes, crossed the center line and at times went onto the westbound travel lane”: page 11 [emphasis added]. [ 75 ] Cst Vink was also thoroughly cross-examined concerning his speed calculations. He agreed that using the odometer/tachometer calculation would only demonstrate speed at a certain point in time and did not show speed over any length of time.

He also agreed that the numbers on the odometer and tachometer might have been slightly skewed given the angle they were being filmed from on the BWC (what Defence Counsel referred to as a “parallax error”). As such he agreed that his estimate of 97 kph could (based upon a speedometer reading of 60 miles per hour) be too low or too high. He also agreed that speedometers have a margin of error of approximately 4 percent.

While the fact that the Vehicle was being driven with a spare tire could affect speed estimates, Cst Vink testified that it would not have in this case, given the circumference difference of .002 metres. [ 76 ] In my view, Cst Vink addressed these issues squarely during cross-examination. I do not find, given his opinion, that deviations for the spare tire, and speedometer margins of error were significant, or that his failure to include these factors discounts the value of his evidence.

He was agreeable to the suggestion that parallax error might have resulted in estimates lower than 60 mph, but also higher than 60 mph. He remained steadfast on what he determined to be evidence of foot scuff mark along the route travelled by the

Vehicle.

e) Mr. Hardeep Dhaliwal [ 77 ] Mr. Dhaliwal is a City of Calgary Transit employee. On the night in question, he was driving a bus loop in the Falconridge area which brought him westbound down Falconridge Drive. He estimated he would drive past the Petro-Canada parking lot every 29-30 minutes on his loop. He stated that at approximately 10:15 pm on December 31, he witnessed a traffic stop in the gas station parking lot. He was surprised when he encountered the same traffic stop a half hour later on his next loop. He stated that on noticing the police were still there he started “wondering” and he “just looked”.

He then witnessed the Vehicle being driven with an officer struggling on the driver’s side of the Vehicle. [ 78 ] Upon witnessing this, he stopped his bus on the side of the road, worried about a possible collision. Mr. Dhaliwal was pulled over in the westbound lane and the Vehicle drove past the bus heading eastbound. He noticed the Vehicle get hung up on the snow temporarily and then execute a hard right hand turn down Falconridge Drive with the officer still struggling on the driver’s side. He stated it appeared that the officer was trying to hold on.

He then witnessed the driver’s side door open and subsequently lost sight of both the officer and the Vehicle. Mr. Dhaliwal’s testimony was consistent with the CCTV footage from the bus he was driving. [ 79 ] In describing the movement of the Vehicle, he stated that it “was trying to get away, it was very fast” and he estimated its speed at around 80 kph. In cross-examination, he agreed that it is very difficult to estimate speed in a short amount of time and through the use of a rear-view mirror.

He agreed that for portions of the flight, he could not see the lower half of Sgt Harnett’s body and he believed that Sgt Harnett was attempting to stop the Vehicle from fleeing. He also agreed that in his original statement to the police he said that he wanted to tell Sgt Harnett to let the car go, as he could always issue a ticket later.

f) Mr. Jake Olson [ 80 ] Mr. Olson is a university student who was out picking up a pizza on the night in question at the Dominos Pizza located near the Petro-Canada. He noticed the traffic stop as he went in to pick up his pizza. When he was leaving, he noticed that a police officer was hanging onto the door of the Vehicle as it drove away. Mr. Olson said it was obvious that the individual was a police officer given his manner of dress and the presence of two police cruisers. He stated that it looked as though the officer was being dragged and was hanging onto the door.

He further stated that once the Vehicle left the curb, it headed eastbound at “a pretty good speed” which he estimated to be 70 kph. [ 81 ] Mr. Olson indicated that he initially turned his vehicle off Falconridge Drive to head home, but then decided to drive back to see if the officer was OK. At this point, Csts Ormond and Desroches had arrived and were attending to Sgt Harnett. [ 82 ] On cross-examination Mr. Olson agreed that in his earlier statement to police, he indicated that Sgt Harnett had both of his hands inside the Vehicle and was leaning in, attempting to grab either the steering wheel or the driver.

In his statement he indicated that Sgt Harnett’s feet were on the Vehicle’s foot board and that after he slipped, he readjusted himself to get stable, and continued attempting to grab the driver as the car drove away eastbound. Again, the evidence of Cst Vink confirms that the Vehicle did not have running boards or “foot boards” but did have a trim just above the undercarriage. [ 83 ] Mr. Olson denied observing the Vehicle getting stuck up on the berm at any point in time but agreed that the Vehicle proceeded across the curb. Nor did he see the Vehicle swerve or try to knock the officer off.

Finally, he indicated that it appeared that while the Vehicle was leaving the curb, that Sgt Harnett was wrestling with the Accused.

g) Sgt Harnett’s BWC footage [ 84 ] While as I have indicated the Crown called seven witnesses, I paid particular attention to the footage from Sgt Harnett’s BWC. While the entire flight is just over one half of a minute, and the footage is obviously shaky in parts, given what is occurring, this key piece of evidence objectively demonstrates what transpired between Sgt Harnett and the Accused in the crucial moments during flight. In reviewing the video evidence, I was guided in part by the still photos/frames which assisted in demonstrating what was happening on the video.

I also take note of the fact the time stamp on the video reflects a universal time used in BWC recordings and is not in mountain standard time. I reviewed this footage on multiple occasions, as the entire incident occurs in under one minute and much is occurring during that time. [ 85 ] Sgt Harnett’s BWC footage demonstrates that the stop involving the Accused began as ‘routine’. Sgt Harnett was polite and professional when he questioned the Accused, and the Accused, in turn, was respectful and co-operative with Sgt Harnett.

While the Accused did not have his driver’s licence on him, he willingly provided Sgt Harnett with his full name, address, and phone number and he also opened the driver’s side door to assist Sgt Harnett is obtaining the Vehicle’s VIN. The Accused freely offered up the fact that his friend, Mr. Abdulrahman, had his licence on him. The Accused also partially rolled down the rear window of the Vehicle when Sgt Harnett was trying to communicate with the backseat passenger. Mr. Abdulrahman also cooperated with Sgt Harnett by providing his licence when asked to do so.

Sgt Harnett then returned to his cruiser to process the information he had received concerning the two individuals. [ 86 ] As testified to by the other officers and observed through the various BWC viewpoints, just as Sgt Harnett approached the driver’s side window to issue a traffic ticket, the Accused can be seen putting the Vehicle into gear and driving away.

Contrary to the Accused’s testimony described below, this initial action to flee the scene does not appear panicked, but rather, a deliberately executed maneuver. [ 87 ] Sgt Harnett is seen holding on to the Vehicle at a point near the driver’s side window. Prior to getting hung up on the berm, Sgt Harnett issues two verbal commands to the Accused to “stop the Vehicle”. My review of both Sgt Harnett’s and the other officer’s BWC footage indicates that from the moment of flight, the Vehicle travels northbound for approximately 10 seconds before getting stuck

on the berm. Sgt Harnett again issues the command to “stop the vehicle” during the approximate 5 second period when the Vehicle islodged on the berm. Once the Vehicle regains traction Sgt Harnett is heard issuing the command to “stop the Vehicle” on three moreoccasions during the approximate 21 second period while the Vehicle proceeds eastbound down Falconridge Drive before he loses hisgrip. [88] A review of Sgt Harnett’s BWC footage demonstrates a number of key interactions between himself, the Accused and Mr.Abdulrahman. First, it shows that at various points during flight, Mr.

Abdulrahman takes control of the steering wheel. Mr.Abdulrahman’s initial physical involvement in the flight occurs when he takes control of the steering wheel by cranking it hard in threequick rotations while the Vehicle was stuck up on the berm. This “cranking” occurred just after an unidentified member in the Vehicle isheard to state “go, go, go”. He then appears to almost nudge, or correct, the steering wheel in relation to the Vehicle’s flight path as ittravels down Falconridge Drive on two separate occasions.

The Accused remains in control of the gas and brake pedal throughout theflight. [89] Second, the BWC footage indicates that Sgt Harnett and the Accused were involved in a physical struggle. However, whilethe Sgt Harnett’s BWC footage is blurry, given the nature of his positioning, it is clear that the Accused is trying to maintain his hold onthe Vehicle. [90] It is while the Vehicle is stuck on the berm that Sgt Harnett most clearly attempts to lawfully restrain the Accused. While thefootage is grainy, it depicts that Sgt Harnett struck the Accused, possibly on more than one occasion.

The Accused’s hair elastic isloosened during the struggle and his upper torso visibly moves backward and forward, with his hair being tossed around his face. TheAccused appears to be engaged in both defending himself from these blows, as well as with trying to force Sgt Harnett off the Vehicle.Again, it is when the Accused has turned his attention to the direct physical exchange with Sgt Harnett that Mr.

Abdulrahman leans overand briefly takes control of the steering wheel, cranking it in the three quick rotations mentioned earlier. [91] Once the Vehicle has exited the parking lot and is gathering speed, Sgt Harnett’s BWC footage clearly depicts the Accusedpushing the driver’s side door open using his hand. This action causes both the door and Sgt Harnett to “sway” away from the Vehicleand out onto the roadway. The Accused then uses his hand and later his lower leg to push open the door on two further occasions, eachtime causing Sgt Harnett to sway away from the body of the Vehicle.

I note that this last attempt does not move Sgt Harnett very faraway from the Vehicle. At certain points along Falconridge Drive, the Accused directly applies force to Sgt Harnett’s arm. This canclearly be seen in frames 56782-56822 of the still photo exhibit, as well as in frames 56950-56962, where the Accused directly grabs atSgt Harnett’s wrist/forearm in conjunction with pushing open the driver’s side door.

I therefore disagree with Defence Counsel’ssubmissions that “this is not a case where the young person was hitting or applying force to Sergeant Harnett” [transcript September 29,2002 page 43 lines 24-25] as well as with his assertion that “the door was pushed, not Sergeant Harnett” [transcript, September 29, 2022page 42 lines 28-29]. [92] Following these actions, the Accused is seen executing a brief series of moves in which he rotates the steering wheel left andright, causing the Vehicle to swerve side to side.

It is during this maneuver that Sgt Harnett loses his grip and falls onto the westboundlane of the roadway. Sgt Harnett’s video feed cuts out at this point, although the acceleration of the Vehicle away from the scene can stillbe heard. ii) The Defence [93] The Defence called one witness – the Accused. I am mindful of the approach to be followed when an accused gives evidence,as explained in R v W(D), (SCC), [1991] 1 SCR 742. In W(D), the Court instructed that where (as at bar) credibility isimportant, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.

The trial judge should instruct thejury that: (1) if they believe the evidence of the accused, they must acquit; (2) if they do not believe the testimony of the accused but areleft in reasonable doubt by it, they must acquit; (3) even if not left in doubt by the evidence of the accused, they still must ask themselveswhether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which theydo accept: 757-758. [94] The W(

D) analysis has undergone some nuanced modifications over time, notably as discussed by our Court of Appeal in R vRyon, 2019 ABCA 36. Labrenz J of this Court recently summarized the modified approach in R v Crier, 2020 ABQB 20 as follows: 292 As I consider the accused's statements, it is important that I remind myself, once again, to be mindful that the rule of reasonabledoubt applies to the credibility of witnesses: R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.) at 757.

Morespecifically, I instruct myself that I must resolve any conflict in the evidence on the basis that any reasonable doubt should inure to thebenefit of the accused: R v. Ryon, 2019 ABCA 36 (Alta. C.A.) at para 21. Fundamentally, I may not decide guilt or innocence by askingif I prefer the inculpatory evidence over the exculpatory evidence, or the evidence of one witness or a group of witnesses, over that ofothers.

As Martin JA said in Ryon, at para 40, "...[a] trial is not a credibility contest requiring [the fact finder] to choose one version overthe other." […] 297 I would add to these considerations, Martin JA's revisiting of the Ryon principles in R. v. Achuil, 2019 ABCA 299 (Alta. C.A.) atpara 18. In that decision Martin JA suggested a slight modification to the second prong, which he based upon his earlier pronouncementin R. v. Gray, 2012 ABCA 51 (Alta.

C.A.) at para 42: In that context, if the accused's evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if it is not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. 298 Finally, as Ryon cautions, I must not consider the accused's exculpatory evidence in isolation from the entirety of the evidence. [95] With the above in mind, I turn to the evidence given by the Accused.

a) The Accused [ 96 ] The Accused commenced his testimony by providing a brief overview of his background and circumstances. He indicated that he grew up in a dysfunctional family in which his father was abusive. This abuse resulted in his mother relocating the family to different cities from time to time, sometimes finding refuge in various women’s shelters. [ 97 ] In the Spring of 2018, he went to live with his older brother in Montreal for approximately six months. He stated that his mother wanted him to do so as he had become mixed up in a peer group that was into crime.

When he returned to Calgary in September of 2018, he enrolled in William Aberhart high school and found part-time employment as a dish washer. He completed his grade 10 year there and then transferred to James Fowler high school. He stated that he transferred schools because he did not really fit in at William Aberhart as it was not very multicultural and his peers seemed more affluent than he was. He stated that James Fowler was more culturally diverse and was closer to home.

At this time, he was living with his mother in the community of Thornecliff. [ 98 ] The Accused recalled an incident that occurred while he was attending William Aberhart. He was present at a house party where the police had been called due to a noise complaint. The Accused indicated that he was singled out of a group of teens leaving the residence and was thrown on a couch by a police officer and was asked several questions geared toward determining his identity.

He stated that there were not many visible minorities present at the party and that he felt he was targeted as a person of colour. [ 99 ] The Accused indicated that in 2020, he began renting a basement suite in a home located somewhere in the community of Skyview. He stated that he was able to afford to do so as he was receiving Covid-19 benefits as well as employment insurance. He said that sometimes his friends would come to visit or hang out in the suite, but he mainly used it to spend time alone with his girlfriend.

He stated that in his Muslim culture, it would not be appropriate to bring a girl to his family home. He indicated that he was “back and forth” between his family home and his rented suite. [ 100 ] The Accused testified that in addition to spending time with his girlfriend, he liked to play basketball, as well as just “chilling out” at the park with friends and spending time on social media. One of his close friends from basketball was an individual named Moayed. Another close friend was Amir Abdulrahman, whom he met through Moayed.

Both individuals were about two years older than the Accused. [ 101 ] The Accused purchased a Jeep Cherokee in June of 2020. He indicated that a few days prior to Sgt Harnett’s death, he noticed an issue with the tires on the Jeep and brought it to the shop of his mechanic, an individual named Bilal. Bilal provided him with the Infiniti Vehicle to drive as a loaner while the Jeep was being repaired. Bilal also informed the Accused about an “open” party happening on New Year’s Eve, meaning that the Accused could attend and invite friends. [ 102 ] The Accused extended this invitation to both Moayed and Amir. Mr.

Abdulrahman accepted the invitation to attend the party with the Accused. [ 103 ] On the night in question, the Accused testified that early in the evening, he watched some Turkish TV shows with his mother. He then went to his Skyview residence to relax and get ready for the party. He stated that around 10 pm Mr. Abdulrahman arrived at his Skyview residence with a friend, and they planned to travel to the party together. The Accused indicated that the friend was someone he did not know, and could not recognize, as he was wearing a Covid-19 mask.

No introductions were made, and the group got into the Vehicle and headed to the party. The Accused indicated he was unsure of where the party was, other than that it was downtown, as he was simply following his GPS coordinates. [ 104 ] The Accused estimated that he had been driving for approximately 10 minutes when he was pulled over by Sgt Harnett. The Accused stated that he was only concerned he might be getting some type of ticket. He stopped the Vehicle and rolled down his driver’s side window anticipating an interaction between himself and the police officer.

He stated there was no real conversation between himself and the other occupants of the Vehicle at this time. [ 105 ] The Accused indicated that he could not locate his wallet and therefore did not have the required documents to show Sgt Harnett when asked. The Accused was informed that he had been driving without his lights on; as is seen in the BWC footage, it is at that point that he activates the headlights.

The Accused stated that he had been in a few traffic stops in the past and at this point during the stop he felt “a bit stressed” but was “not worried” as nothing unusual was going on. [ 106 ] The Accused said that during the initial interaction, he noted Sgt Harnett shining his flashlight in the backseat window and so he partially rolled down that window so Sgt Harnett could see into the back of the Vehicle. This is shown on the BWC footage. [ 107 ] The Accused indicated that Sgt Harnett asked for his name, date of birth and address.

He felt that a request to provide this information was in keeping with his previous traffic stop experiences. He stated that Sgt Harnett then asked for his phone number and requested that the Accused open his front door so that he could record the Vehicle’s VIN. He indicated that his anxiety was beginning to increase, as this was an atypical request, but was not yet worried. The information that the Accused provided to Sgt Harnett was later confirmed to be accurate. [ 108 ] As a Class 7 (learners) driver, the Accused offered up the fact that Mr. Abdulrahman had his licence with him.

Sgt Harnett asked to take a look at this licence and Mr. Abdulrahman appeared to readily hand it over. [ 109 ] The Accused stated that when the second police cruiser arrived and another officer approached the Vehicle, he began getting “a bit worried”, but was still thinking this was “nothing much” outside of the fact that this did not appear to be a typical traffic stop.

The BWC footage indicates that while dealing with Sgt Harnett, the Accused notices the arrival of the second cruiser and that at least on two occasions he looks over at Cst Desroches, who by this point was standing on the passenger side of the Vehicle, shining his flashlight in. The Accused stated he did not know why “backup” would be called to a routine traffic stop. [ 110 ] After obtaining Mr. Abdulrahman’s licence, Sgt Harnett instructs the Accused to “stay in the vehicle” indicating that he will “be back in a minute”.

Of course, given the fact that various database systems were down, Sgt Harnett was not “back in a minute”. Rather,

the process took approximately 26 minutes. [ 111 ] The Accused testified that during this 26-minute period, he engaged in some idle conversation with the other occupants in the Vehicle, but that mostly he was on his phone and looking back in his side mirror to see when the police would return. He denied knowing that there were any warrants out for Mr. Abdulrahman’s arrest. He also denied that there was anything illegal inside the Vehicle. He stated that the longer the traffic stop progressed, the more anxious he was becoming.

He estimated the traffic stop to have lasted about 40 minutes. [ 112 ] The Accused stated that he first noticed that the officers were returning to the Vehicle when he observed Cst Desroches approaching the passenger side door. He then said he looked quickly to his left where he observed Sgt Harnett approaching with his hand on his gun. In relation to seeing Sgt Harnett’s hand on his gun the Accused indicated that this was the “last straw” to his mounting anxiety and panic, stating: …as soon as I seen that, honestly, I took off. You know, I looked to my right. I seen the officer.

And then I looked to my left, and I seen Officer Harnett with his hand on his gun. And as soon as I seen that, I took off. I was scared. My anxiety was through the roof at this time […] I thought something bad was going to happen, to be honest right? You know, I thought just the fact that, like, why would he have his hand on his gun; right? That’s the way I’m looking at it. Like, why? Right? I took off. As soon as I seen the officer, I took off. I was panicked. It was – I just – you know, I just took off.

I was scared. [transcript September 27, 2022 page 36 line 3 – line 15] [ 113 ] According to the Accused, he was not initially aware that Sgt Harnett had grabbed on to the Vehicle, but he soon realized that Sgt Harnett had done so, and was grabbing on to the door and the steering wheel.

The Accused stated that Sgt Harnett’s weight upon the steering wheel caused the Vehicle to steer over toward the Petro-Canada station and that the Accused was trying to maintain control and avoid hitting the station, resulting in the Vehicle impacting the snow berm where it temporarily became high centered. [ 114 ] The Accused stated that he did not stop the Vehicle during this initial portion of the flight due to the fact that it was veering toward the gas station, and he was focused on maintaining a straight course. [ 115 ] The Accused testified what while on the berm, he did not know why the Vehicle had stopped.

He stated that at this time, Sgt Harnett grabbed onto his hair and began punching him. The Accused stated that he was focused on defending himself and was trying to block his face and back away. He indicated that he had “no control” and that as he was backing away, his eyes were closed, and his right leg was inadvertently pressing on the accelerator. He stated that during this altercation he heard someone shout “gun gun gun” as well as “go go go”.

He stated that he could not identify which occupant of the Vehicle said these things. [ 116 ] The Accused stated that while stuck on the berm and during the assault, he was thinking that he “was done” and he believed that he was going to be dragged out of the Vehicle and either killed or seriously injured. [ 117 ] After becoming dislodged from the berm, the Accused proceeded down Falconridge Drive.

While the Accused acknowledged that the hand which pushes the driver’s side door as seen in the BWC footage “appeared to be his” he indicated that he simply did not remember any of the specifics of the flight down Falconridge Drive. Rather, the Accused stated that the situation was so chaotic and that everything happened so fast that he does not remember the details. [ 118 ] When questioned about what was happening from his perspective as the Vehicle left the berm and proceeded down Falconridge Drive, the Accused indicated that everything happened too quickly for him to be able to process it.

He indicated that he had just “got freed from getting punched” and that events were unfolding very quickly. [ 119 ] He stated that he recalls Sgt, Harnett attempting to grab onto the wheel and that has was “super scared”. He testified that at that point in time, he was not even considering what might happen to Sgt Harnett – rather, he was concentrating on himself and getting away from the situation and to a safe place.

He indicated that he was not even aware that Sgt Harnett had fallen from the door until a few seconds after it happened. [ 120 ] When asked why he did not stop the Vehicle while Sgt Harnett was struggling to maintain his hold, he indicated that he was too scared and that the last time the Vehicle was stopped (on the berm) “everything got worse” in that he was assaulted. He stated that he was simply focused on himself and trying to maneuver the Vehicle away from the situation.

Again, he indicated that everything was so quick and chaotic, that he never really directed his mind to what might happened to Sgt Harnett. [ 121 ] He estimated that the was travelling at approximately 70 kph down Falconridge Drive at the relevant time, indicating that due to a curve in the road at that point, he could not have been travelling any faster. He stated that he was not focused on oncoming traffic or anything else other than maintaining the flight path of the Vehicle.

He did not consider what might have happened to Sgt Harnett after he fell from the Vehicle. [ 122 ] I note the specific exchange during his examination in chief: Q: What were you thinking would happen to Sergeant Harnett here? A: To be frank with you, I wasn’t thinking about him much. I wasn’t thinking about him. I’ll be frank. Like, I was just thinking about myself. Like—like, I was thinking about saving myself, honestly. Like, getting myself to safety; right?

I wasn’t thinking about the officer. [transcript, September 27, 2022 p 40 line 40 – p 41 line 3] [ 123 ] The Accused indicated that after left the scene, he returned to his basement suite. At this point in time, he suspected that the police would arrive at his mother’s house and look to arrest him. He did not turn his mind to Sgt Harnett until he was in his suite, stating “…I didn’t think I would have hurt him. I didn’t think I would have killed him”. He stated that he saw a notification about the death of a CPD Officer around 3:00 am while he was watching YouTube.

At that point he “lost it”, felt “sick” and “empty” and began crying. He called Mr. Abdulrahman and informed him of this development and stated that he was going to turn himself in the following day and advised Mr. Abdulrahman to do the same.

[ 124 ] The Accused contacted a lawyer and turned himself in the following day. [ 125 ] During cross-examination, the Accused admitted to each of the physical elements of the offence. That is, he stated that he knew a police officer was attached to the Vehicle at some point in the parking lot, and that the officer was still attached as he exited onto Falconridge Drive.

He admitted that he was fully in charge of the accelerator and brakes, that he was aware of multiple demands to stop the Vehicle, that he was travelling in excess of the speed limit, and that he engaged in various attempts using his hands and his leg to undo Sgt Harnett’s hold on the Vehicle. While the Accused stated that he had no recollection of doing these things, he agreed that these acts were demonstrated on the video. He further stated that he had no recollection of “jerking” the steering wheel just before Sgt Harnett fell, although he agreed he was in control of the wheel at that time.

Position of the Parties

i) The Crown [ 126 ] The Crown takes the position that the Accused’s version of events is neither credible nor reliable. It urges me to reject the Accused’s testimony and rely instead on the common-sense inference as to intention. The Crown submits that the Accused was motivated to flee the traffic stop and did everything he could to eject Sgt Harnett onto the roadway, including physically assaulting the Officer, pushing and kicking the door open such that Sgt Harnett’s body was swung away from the Vehicle, and finally, executing a “swerving” maneuver with the wheel aimed at making Sgt Harnett lose his grip.

The Crown says all these actions took place on a busy roadway while travelling well in excess of the speed limit. [ 127 ] The Crown urges this Court to reject the Accused’s explanation that he simply panicked and did not turn his mind to that was occurring or the consequences of his actions. Rather, it asserts that the Accused made a calculated decision to flee the traffic stop at the moment he would have the best chance of getting away (i.e., when all three officers were out of their police cruisers).

The Crown suggests that there was something in the Vehicle which – if found by police – would have placed the Accused in much greater jeopardy than the few tickets he would otherwise have received under the Traffic Safety Act . [ 128 ] The Crown states that although a youthful offender, the Accused is very mature for his age. He had his own apartment, bought his own car, was employed prior to the pandemic, had lived in various big cities, had a girlfriend and had an older peer group.

The Crown suggests that the Accused’s evidence was tailored to give the impression that he was a frightened boy who panicked, as opposed to the sophisticated young man that he is. The Crown takes the position that the Accused’s thought process that evening was more calculated, insightful, and mature than that which he testified to. [ 129 ] As such, the Crown submits that this Court should reject any suggestion that the Accused got caught up in events he simply could not process or turn his mind to. It stresses that determination should not be confused with panic.

Rather, that the evidence demonstrates that the Accused intended his actions with the obvious goal of dislodging Sgt Harnett out onto the road, knowing the likely result was death. [ 130 ] The Crown says in rejecting the Accused’s entirely self-serving evidence, the Court is left to assess the events of December 31 by inferring that the Accused intended the logical consequences of his actions. The Crown takes the position that given the collection of factors discussed above, the Accused’s intent to commit murder crystalized on Falconridge Drive.

It asserts that intent has been established contemporaneously with the commission of the underlying unlawful act, and that the requirements under s 229(a)(ii) of the Code have been proven beyond a reasonable doubt. ii) The Defence [ 131 ] The Defence asserts that the Crown is incorrectly focusing on a general common-sense inference that the Accused was aware of what was occurring and thus can be said to have intended the consequences of his actions.

Rather, the Defence states that the Court must analyze the events in issue through the subjective lens of the Accused. [ 132 ] The Defence takes the position that while the Accused may have agreed with a number of the Crown’s suggestions concerning danger and likelihood of bodily harm with the benefit of hindsight, his mens rea must be determined at the time of the offence and in regard to individual factors pertaining to the Accused including his youth, and his perception as a racialized individual.

The Defence stresses that there is a legal distinction between making a decision known to be bad on impulse as opposed to not even turning your mind to the likely consequences of your actions. [ 133 ] In relation to the Accused’s credibility, the Defence takes the position that even if this Court rejects the Accused’s evidence on more peripheral matters, the Accused’s evidence concerning his panic and his singular focus of getting away to somewhere “safe” was never impeached.

As such, this Court can rely on the Accused’s evidence concerning his state of mind during the traffic stop and during the critical moments during the flight down Falconridge Drive. [ 134 ] Even if the Accused’s testimony is not relied upon, the Defence stresses that guilt can only be inferred from circumstantial evidence when no other reasonable inferences are available. Here, the Defence says that inferences inconsistent with a subjective mens rea exist. Analysis

i) Initial findings of fact

[ 135 ] Prior to engaging in the crucial analysis concerning the Accused’s mens rea , I will make a number of basic findings of fact concerning the acts that occurred during flight which inform upon my analysis as a whole. These segments are, of course, discussed in greater detail in analyzing the elements of the offence. As I noted earlier, the entire flight from takeoff to Sgt Harnett’s becoming dislodged lasted approximately 36 seconds. I have broken the flight down into three segments to better analyze the flight as a whole. For the most part, these initial findings are not controversial.

a) The moments of initial flight [ 136 ] The initial moments of flight are best captured on Cst Desroches’ BWC footage. The Constable walks up to the Vehicle and knocks on Mr. Abdulrahman’s window. At this point Mr. Abdulrahman is looking at something on his cell phone. Mr. Abdulrahman fully rolls down his window and Cst Desroches asks him to open his door. Mr. Abdulrahman complies and opens the passenger door. As he begins to do so, the Accused’s hands are clearly seen placing the Vehicle in gear and turning the steering wheel to the left to engage the Vehicle toward the parking lot exit.

In my view, the Accused appears to execute this maneuver in a smooth fashion. I note that it does not look as though Mr. Abdulrahman closes the door as the Vehicle takes off. Rather, it seems as though the door closes on its own accord due to the forward momentum of the Vehicle, although his hand contacts the door just as it closes. [ 137 ] The Vehicle takes off heading toward the northern exit just past the Petro-Canada station. Both of Sgt Harnett’s feet are initially visible on Cst Desroches’ BWC footage. His feet appear to run beside or be dragged alongside the Vehicle.

I find it takes approximately 10 seconds from the time when the Vehicle initially takes flight until it gets stuck up on the berm. Sgt Harnett issues instructions to “stop the car” during this initial portion of flight. I accept Cst Vink’s findings that the distance from the initial takeoff position to where the Vehicle temporarily became stuck up on the berm totaled 57 meters.

b) The berm [ 138 ] I find that the Vehicle is high-centered on the berm for an approximate 5 second period. During this period, one can hear the engine revving high as the tires seek traction. Around the same time as the tires are heard spinning out, someone in the Vehicle is heard shouting “go go go”. While on the berm there is a physical altercation between Sgt Harnett and the Accused.

Although the BWC footage is blurry given the constant movement, having viewed it on multiple occasions, and having seen the still photos, I find that Sgt Harnett did lawfully strike the Accused and that the altercation caused the Accused’s torso and head to lob back and forth in the Vehicle briefly. The Accused is also seen striking at Sgt Harnett’s arms and possibly his torso. During this altercation Mr. Abdulrahman takes control of the steering wheel and cranks it hard three times. Instructions to “stop the car” are being yelled by both Sgt Harnett and the other two officers as they approach the berm on foot.

The Vehicle did not really travel any notable distance while stuck on the berm. [ 139 ] During this segment, Csts Osmond and Desroches chase the fleeing Vehicle on foot. They nearly catch it just as it begins to gain traction on the berm. At this point, the Constables have their guns drawn. As the Vehicle beings to regain traction, Cst Osmond issues the instruction not to shoot.

c) Falconridge Drive [ 140 ] After exiting the berm, the Vehicle proceeded eastbound down Falconridge Drive. During this time Sgt Harnett appears to have his arm either attached to the frame of the door, or slightly inside the door frame. [ 141 ] I accept Cst Vink’s analysis that drag marks adjacent to the Vehicle’s tire marks indicated that Sgt Harnett was essentially dragged alongside the Vehicle as it sped down Falconridge drive.

I further accept Cst Vink’s findings that the scene analysis demonstrated that Sgt Harnett’s shoes crossed over the centre line dividing eastbound and westbound traffic on Falconridge Drive and that this crossing could have occurred with the Vehicle door being swung open, thus propelling Sgt Harnett further from the Vehicle, as the tire tracks did not indicate that the Vehicle itself crossed over. [ 142 ] While the Accused testified that he does not recall much of what happened during the flight down Falconridge Drive due to his sole focus of getting to safety, I find that the Accused took a number of steps which resulted in Sgt Harnett becoming dislodged from the Vehicle during this segment. [ 143 ] On viewing the BWC footage, I am satisfied that the Accused takes the following actions: (

i) he uses his hand and grabs at/applies direct force to Sgt Harnett’s arm (see frames 56950-56962) while the car is speeding down Falconridge Drive; (ii) on two separate occasions he uses his hand to push the Vehicle door open, causing Sgt Harnett to swing out away from the body of the Vehicle; (iii) following these two pushes by hand, the Accused uses his leg, again to push the door open and away from the Vehicle, and finally: (iv) he performs a “jerking” or “swerving” maneuver of the steering wheel. It is after this last maneuver that Sgt Harnett falls from the Vehicle and rolls into oncoming traffic.

I address the issue of the “jerking” maneuver further, below. [ 144 ] I find the flight down Falconridge Drive lasted for approximately 21 seconds. [ 145 ] Of note, in discussing this segment of flight, I reject Defence Counsel’s submission that it was Sgt Harnett who was somehow responsible for the repeated opening of the Vehicle’s driver’s side door. During closing arguments, Defence Counsel suggested that: The evidence of Constable Vink -- I will just point out now -- was that Sergeant Harnett was the cause of the door opening. It wasn't that the young person opened the door and pushed it.

The door opened, and at that point, there was movement of the door, and you see the young person's hand on the door, and you see a push. I think that that's a fair characterization of the video evidence. [transcript September 29, 2022 page 33 lines 28-32] [ 146 ] In my respectful view, this submission mischaracterizes Cst Vink’s evidence. During cross-examination, Cst Vink was asked about certain portions of the BWC footage at time stamp 5:49 to 5:50:09. I have reviewed this segment of the BWC footage as well as the stills reproducing this segment.

Not only does this time period relate solely to the that portion of flight while the Vehicle was in the parking lot and then on the berm, but the actual exchange between (then) counsel and Cst Vink was as follows:

Q MR. ALONEISSI: If we could pause it here, please -- thank you -- and proceed just frame by frame. As you're doing that, as you're looking at this, Constable Vink, you recall your testimony about the door swinging open. I want to ask you if you can discern whether it's Sergeant Harnett that in fact opens the door as we view this? (VIDEO PLAYED) Q MR. ALONEISSI: Can you just stop for a moment. Thank you. You see that there's a hand, appears to be a gloved hand holding onto the door. What appears to be the door handle at that point; is that right? A It appears to be. Q From obviously outside.

That is, the hand is from outside the vehicle. It would be reasonable to conclude that was Sergeant Harnett's hand? A I would believe so, yes. MR. ALONEISSI: Okay. Thank you. [...] (VIDEO PLAYED) Q MR. ALONEISSI: Does it appear to you at this point, Constable Vink, that Sergeant Harnett was grabbing the door frame of the vehicle? A It's difficult to see in the video itself as to what exactly he's grabbing onto. There's various times where he's grabbing onto the door frame.

Other times where his arm is actually wrapped inside the door, almost in a pinching the door between himself and his arm. [transcript January 31, 2002 page 75 line 3 – page 76 line 25] [ 147 ] In my view, the evidence might support a finding that Sgt Harnett grabbed onto the door handle at the outset of flight; but, it is indeterminable who initially opened the Vehicle’s door.

Nevertheless, there is nothing in the BWC footage or in Cst Vink’s evidence to support a finding or an inference that anyone – other than the Accused – took part or played any role in the repeated pushing open of the door as the Vehicle sped down Falconridge Drive. [ 148 ] I turn now to the question of speed. While a number of different estimates were provided as to the speed of the Vehicle as it travelled eastbound down Falconridge Drive, all witnesses believed it was travelling in excess of the posted speed limit of 50 kph. The lay witnesses (being Mr. Ogunsanya and Mr.

Olson) gave speed estimates between 60-70 kph. The Accused estimated his speed at 70 kph. Contrasted against this, the professional drivers, who - given their employment positions may be more likely to accurately note the speed of passing vehicles - all provided estimates between 80-100 kph (being Cst Osmond, Cst Desroches and Mr. Dhaliwal).

Finally, leaving aside his calculation of average speed, Cst Vink provided an expert opinion of speed between 76 and 97 kph. [ 149 ] Given the above and placing a particular emphasis on the expert evidence provided by Cst Vink, and noting the estimates provided by “professional” drivers, I find that the Vehicle was travelling somewhere between 80 - 90 kph at the time Sgt Harnett fell away from the Vehicle.

This takes into consideration the factors put to Cst Vink in cross-examination, including parallax error, general speedometer inaccuracy and the fact that the vehicle was being driven with a slightly smaller spare tire.

This speed range equates to approximately 1.6 to 1.8 times the posted speed limit. [ 150 ] I turn next to the question of whether the Accused either “jerked” or swerved” the steering wheel or whether this movement - as captured on the BWC footage – merely reflected the Accused guiding the Vehicle through the curved portion of Falconridge Drive. [ 151 ] Having reviewed Cst Vink’s Reconstruction Report (notably “Image #2 – Falconridge Drive”) as well as the aerial footage of the Calgary Police Helicopter Air Watch for Community Safety (“HAWCS”) I am satisfied that the curve in question is gradual as opposed to sharp, and that the final hand movements of the Accused are not consistent with a driver guiding a vehicle through a moderate curve and then correcting his positioning as the road straightens out, as the Accused suggests.

Rather, the movements demonstrate a quick back-and-forth jerking of the steering wheel, although not to the extent that the Vehicle leaves its designated lane of travel. [ 152 ] Nor do I find this action to be consistent with the Accused attempting to maintain control of the Vehicle given icy road conditions. While I acknowledge Mr. Olson’s testimony that he recalled the roads being slippery, I prefer Cst Vink’s expert analysis, which contains data retrieved from Environment Canada at appendix 3.3. Of note, it indicates no precipitation amount and lists the weather as “n/a” over the relevant time period.

His Report provides that (as of time of arrival being 00:45 hours): The road surfaces consisted of asphalt with a prevalent light snow covering and some slushy sections. […] Environmental and roadway conditions were not considered factors in this collision. [ 153 ] Finally, in regard to the Falconridge Drive segment of flight, I accept Cst Vink’s analysis that after exiting the berm, the Vehicle travelled a further 370 meters to Sgt Harnett’s final rest position. [ 154 ] Having made a number of preliminary factual determinations, I turn next to my analysis of the physical and mental element of the offence.

ii) The actus reus requirement for murder [155] In order to obtain a conviction for murder, the Crown must prove that the Accused's conduct caused the death of the victim (theactus reus). Here, the Accused’s unlawful conduct in taking active steps to dislodge Sgt Harnett from the Vehicle during his flight frompolice caused Sgt Harnett’s death. While I address the issue of causation further, below, I find that the actus reus has been demonstratedon the evidence beyond a reasonable doubt. iii) The mens rea requirement for murder [156] As alluded to above, the crux of issue in this case is whether the Crown has established the requisit

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