IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           As a result of events in the late evening on July 30, 2016, in Campbell River, B.C., Mr. Roberts pleaded guilty to the following charges:

[2]           Mr. Roberts is also charged with assault of three peace officers on the night in question with intent to resist lawful arrest, namely, Cst. David Dormuth, Cst. Kurt England and Cst. Ian Gammie.

[3]           Mr. Roberts led a number of members of the local RCMP detachment on a high speed pursuit which took them through the downtown core of Campbell River over a period of approximately 10 minutes.  Once his vehicle was finally stopped, he was forcibly removed from his vehicle and arrested.

[4]           During the course of the arrest, Mr. Roberts was injured as a result of blows delivered by police officers and a bite by police service dog Gator (PSD Gator).

[5]           Mr. Roberts has applied for relief pursuant to s. 7 and s. 24 (1) of the Charter.  He alleges that the arresting officers used excessive force and violated his s. 7 Charter right to life, liberty and security of the person and seeks a judicial stay of proceedings pursuant to s. 24 (1) of the Charter or a reduction in sentence pursuant to R v. Nasolgaluak, 2010 SCC 6.

[6]           The officers involved in the arrest, including the dog handler Cst. England, rely on s. 25 of the Criminal Code and say that the use of force in this instance was necessary and reasonable and they were justified in using force to affect a lawful arrest.

[7]           All the evidence was given in a Voir Dire that, for a number of reasons, took place over approximately one year.  I heard evidence from Mr. Roberts as well as from several officers.  In addition to the oral evidence, I also viewed a number of WatchGuard videos and audio recordings that captured some of what occurred that evening.

[8]           Ordinarily, Mr. Roberts must establish, on a balance of probabilities, that his rights under the Charter were breached.  However, in cases involving allegations of excessive force by the police, the Crown must establish on a balance of probabilities that the police officers’ actions fit within the framework of s. 25 of the Criminal Code and were justified.

[9]           I must assess all the evidence and the circumstances surrounding the arrest and determine whether the officers used excessive force to arrest Mr. Roberts or if their use of force was justified as contemplated by the law.

[10]        Lastly, I am asked to determine if the Crown has established beyond a reasonable doubt that Mr. Roberts assaulted Constables Dormuth, England and Gammie with intent to resist arrest.

[11]        I will first review the evidence of each witness in their order of attendance at the hearing.

[12]        Cst. Ushock was the first officer to encounter Mr. Roberts that night.  At that time, he had been a member for almost 9 years and was on patrol as part of the traffic force.  He was in uniform and was driving a marked police vehicle.  Subsequent to these events, he was promoted and is now Corporal Ushock.  To avoid confusion, I will simply refer to him in these reasons as Cst. Ushock, as he was at that time.

[13]        Just before 11 pm that night, he was conducting a patrol through the parking lot at the Riverside Liquor Store and saw a vehicle with a thick layer of dust stopped there.  He pulled into an adjacent lot and set up static surveillance.  He saw two men leave the liquor store and get into the car.

[14]        Cst. Ushock followed the car and did record and licence checks.  The licence plate was registered to Shane Roberts and had been inactive since March 2016, 4 months prior.  It appeared to Cst. Ushock that the insurance decal was covered up under a thick layer of dust.  He decided to conduct a traffic stop.  It is admitted that the stop was lawful.

[15]        He approached the window side of the car and spoke with the passenger.  He looked inside and saw two open cans of Budweiser in the centre console of the car.  He also smelled the odour of beer.  He asked the driver to give licence and insurance information and asked him to turn off his vehicle.  Based on his observations of the driver, he believed that the driver was impaired by alcohol.

[16]        The car was stopped close to the curb and Cst. Ushock had to stand on the curb and was leaning down and inside the car.  He saw the driver’s feet move rapidly and the driver put the manual transmission into gear.  The driver said “I’m sorry, I can’t” and took off.

[17]        The dash cam video and Cst. Ushock’s microphone captured this.  It is clear that the manoeuver was dangerous for Cst. Ushock who fortunately, was able to quickly pull his head back from inside the car and step back.  He was concerned about being struck by the B pillar of the car and being dragged or run over, stating that most officers die in this manner as a result of being hit by a vehicle.

[18]        Mr. Roberts drove away at a high rate of speed.  Cst. Ushock followed in his police vehicle with sirens, emergency lights and his howler.  The video indicates the time was 22:57:30 hours.  He radioed out what had just occurred.  Cst. England was on duty with his PSD Gator, as were Constables Gammie, Thompson, Dormuth and Campbell.  Corporal Price was the watch commander that evening.

[19]        Mr. Roberts refused to stop.  On Ironwood Street, Cst. Ushock tried to stop or slow him by boxing him in with his police cruiser but the resultant collision broke the tie rod end of the cruiser, disabling it.  Mr. Roberts continued to drive away at high rate of speed.

[20]        At that point, the pursuit was continued by Cst. England, Cst. Dormuth and Cst. Gammie.  I have watched the dash cam videos - clearly Mr. Roberts was intent on evading arrest and capture.

[21]        He drove his car through red lights and stop signs without slowing or stopping.  His vehicle swerved as he drove around corners at high speed.  He drove in the oncoming lanes and at one point struck a civilian pick-up truck.  All the while, he was being followed at various times by two or three or four police vehicles with activated sirens and emergency lights.

[22]        Mr. Roberts drove all around the downtown and Campbellton areas of Campbell River through residential, business and commercial areas of the city including: Old Peterson Road, Ironwood Street, Homewood Road, Cheviot Road, 14^th Avenue, 16^th Avenue and Shopper’s Row to name a few.  In the meantime, Cst. Ushock received permission to deploy a spike belt from the watch commander, Corporal Price.  Cst. Ushock deployed his spike belt and continued to get updates from the other officers on the radio.  At 23:08:45, Mr. Roberts hit the spike belt deflating both drivers’ side tires on Mr. Roberts’ vehicle.  Photographs at the scene show that both driver’s side tires were badly damaged and essentially running on rims.  In spite of this, he continued to flee at a high rate of speed and was finally stopped on 16^th Avenue close to Ironwood Street.

[23]        Cst. Ushock’s disabled police vehicle was about 500 metres away and he ran to the scene.  He could see Cst. Gammie’s police vehicle at the rear of the Roberts car and the front of Cst. England’s vehicle at the front of the Roberts car.  By the time he arrived, Mr. Roberts had been taken out of the car and was on the ground.  Cst. Ushock saw three or four police officers attempting to handcuff Mr. Roberts and heard them telling him to “stop resisting” and “give me your hand” a few times.  He testified that handcuffs are used for officer safety.

[24]        He jumped into the fray to help subdue Roberts and held his legs down.  He assisted in putting the rip hobble on Mr. Roberts’ legs.  He described that a rip hobble is a strong fabric material that wraps around a person’s legs and that is secured to the handcuffs so they are not able to kick and testified that this is the only time in his years as a police officer that he has ever used one.

[25]        He also testified that, in his experience, there is a very high threshold for a PDS to be deployed and in situations when the presence of police officers is not sufficient.

[26]        Cst. Ushock was the lead investigator and still investigating the impaired driving offence.  He took photographs of the scene and Mr. Roberts.  Cst. Ushock had been advised that Mr. Roberts was bitten by PSD Gator and photographs were also taken of his injuries at the hospital.

[27]        Photographs of the Roberts’ vehicle at the scene show two open cans of beer in the centre console of the car.  They also show that the inside handle for the driver’s door is broken - the plastic handle was missing and what can be seen in the photograph is only a piece of metal.

[28]        Mr. Roberts was transported to hospital by ambulance and Cst. Ushock was present at the hospital.  A transcript of what Mr. Roberts told the ambulance attendants as well as the medical staff and doctor at the hospital was in evidence.  No issue was taken regarding the voluntariness of the statements.

[29]        After he was treated and assessed, Mr. Roberts was taken to the detachment.  He was interviewed by Cst. Ushock later that morning and again in the afternoon.  Again, no issue was taken that those statements were voluntary.  Cst. Ushock was polite and professional in his conduct towards Roberts.  Mr. Roberts was not able to move very well so Cst. Ushock took him from his cell to the interview room in an office chair.  Mr. Roberts was appropriately cautioned and warned and advised why he had been arrested.  Cst. Ushock got a bottle of water for him.

[30]        While Mr. Roberts was giving his statement, and in the course of the narrative when asked, essentially, why he didn’t stop he told Cst. Ushock that his “head just went squirrely”.  He admitted that he had used “a couple of rails” of cocaine and a puff of marijuana.  He said that they “had a $100 bag” (of cocaine) and he was nervous and just took off because he had it on him and he had been drinking.  He told Cst. Ushock that he had consumed about 12 beer that day and did about 5 or 6 lines of cocaine around 10 pm that night.  He said it was the stupidest thing he had done.

[31]        Cst. Gammie is a nine year member of the RCMP.  On July 30, 2016, he was on duty in his marked police SUV vehicle.  About 11:00 pm a call came through that Cst. Ushock had pulled over a vehicle (the Roberts vehicle).  He started to head to the area in case assistance was needed.  As he approached, he saw a vehicle that was travelling at high speed and while not quite out of control, was moving in that direction.  It was being followed by Cst. England’s SUV (the canine unit) and Cst. Dormuth’s marked police SUV.

[32]        He followed and testified that it took about ten minutes of pursuit to stop this vehicle.  The vehicle at this point was travelling away from the downtown core but then turned around back towards the downtown area of Campbell River.

[33]        During the pursuit, the Roberts vehicle can be seen driving at a high rate of speed past the courthouse and along Shopper’s Row.  He appeared to be going in what I would describe as circles.

[34]        After Cst. England’s vehicle impacted the Roberts car in an attempt to stop it, Cst. Gammie took the lead position and they turned left onto Shoppers Row.  He pulled over to the left side of the road and was convinced that if they allowed this to go on much further, that somebody would be killed.  He was most concerned for the downtown area as well as Ironwood Street where the potential for pedestrians jaywalking or walking on the street was high.

[35]        He saw the Roberts vehicle side swipe a civilian truck.  He was able to get close enough to hit the rear of the Roberts vehicle in an attempt to cause it to steer straight ahead.  This would then allow Cst. Gammie to hook Mr. Roberts’ rear bumper with the bars on the front of his SUV and cause Mr. Roberts to spin 180 degrees. 

[36]        The manoeuvre worked and the Roberts vehicle spun around on the roadway (16^th Avenue).  Cst. England’s SUV was able to drive to the front of it and block it from going forward.  Cst. Gammie came to a stop at the passenger side rear of the vehicle at a 90 degree angle.

[37]        At the time the Roberts vehicle came to a stop, he didn’t know if the driver or passenger had any weapons in the vehicle, or any other means of causing harm and, as he described it, “the level of … where we were at was extremely high.”

[38]        As he got out of his police SUV, he testified as to what was going through his mind:

[39]        He testified that he went to the driver’s side of the Roberts vehicle and as he approached had his sidearm pointed at the driver’s side window.  He also saw, at the same time, that Cst. England had already left his vehicle and, as he was coming around the passenger side of his SUV, had PSD Gator with him.  Cst. England did not have his sidearm raised and that indicated to Cst. Gammie that Cst. England could see the driver’s hands.  At that point, Cst. Gammie holstered his sidearm.

[40]        Cst. Gammie has only had to draw his sidearm less than half a dozen times in his career.

[41]        He and Cst. England arrived at the driver’s door at approximately the same time.  Cst. Dormuth arrived at the driver’s door seconds later.

[42]        Cst. Gammie’s evidence is that they all demanded that Mr. Roberts get out of the vehicle and show them his hands.  This is heard on the video multiple times.  He described seeing Mr. Roberts trying to grab and pull members into the vehicle and saw him punch Cst. Dormuth with his right hand. 

[43]        Cst. Gammie agreed that the video showed that PDS Gator had jumped on him while at the driver’s door and thought that because he was such a young dog, he may have distracted him because Gator knew him.  Gator was not on a leash.  Cst. Gammie in cross examination denied that Gator was on the ledge (of the car door) but was in the ‘scrum” somewhere. 

[44]        He described that it was a very noisy environment at that time and he was very focused on the driver.  Cst. Gammie wanted to see Mr. Roberts put his hands up and comply with demands.  The demands were to show his hands and for those hands to be empty.  His evidence is that did not occur and Cst. Gammie was worried that, possibly, Mr. Roberts had a weapon.

[45]        Cst. Gammie pulled on the outside door handle and couldn’t open it.  He attempted to find a lock or handle on the inside of the door.  He thought Cst. England was doing the same thing but was also dealing with PDS Gator.

[46]        Under cross examination, his evidence was that he did not see Cst. Dormuth strike Mr. Roberts with a baton while Mr. Roberts was in the vehicle; he did not recall anyone delivering multiple blows to Mr. Roberts’ head while he was in the vehicle and he himself did not strike Mr. Roberts in the head at this time.

[47]        He noted a commotion off to the side.  People were approaching the scene as well as an unleashed dog.  Cst. Dormuth dealt with them and Cst. England had to disengage as well.  We know from the video that PDS Gator broke away and went over to the unleashed dog and Cst. England had to go and get him. 

[48]        Eventually, Cst. Gammie was able to open the door.  He reached in and grabbed Mr. Roberts around the head in a jaw lock, pulling him forcibly, head first, out of the driver’s seat.  When asked to describe Mr. Roberts’ demeanour up to this point, his evidence was:

[49]        He described Mr. Roberts as kicking and fighting and not cooperating.  Mr. Roberts was taken a few feet away from the car because he “was not wanting to go down”.  He testified that even once outside the vehicle, Mr. Roberts was refusing to given them his hands to be handcuffed and he remained very worried that Mr. Roberts might have something in his waistband or pocket that he was trying to get to.

[50]        Cst. Gammie was aware that Cst. England was assisting in getting Mr. Roberts to the ground and believes that Cst. Dormuth also joined them.  He wasn’t certain after that because he was concentrating on trying to grab Mr. Roberts’s hands, get compliance and get control.

[51]        He described that Mr. Roberts, even when on the ground, was fighting with them: 

[52]        He tried to punch Mr. Roberts with a closed fist (which is a stun punch) but missed the first time.  On the second attempt he punched Mr. Roberts in the face with a closed fist and momentarily stunned him which allowed the officers to flip him over onto his side or back and gain control of one hand.  The strike with the right hand can be seen on the video.  Later on, it would be determined that this strike fractured Mr. Roberts’ nose.

[53]        Cst. Gammie’s evidence is that he was putting all his weight on Mr. Roberts’ back trying to prevent him from flipping back over.  They did not have control of Mr. Roberts.  He was so focused, that after he and Cst. England got him to the ground he was not certain who was able to put a handcuff on Mr. Roberts’ one hand.  He concentrated on trying to get Mr. Roberts’ other hand so they could be cuffed and thereby obtain control.  He testified that directions to stop resisting and to show them his other hand were being yelled but that Mr. Roberts was not complying.  He described Mr. Roberts as a very large and very strong individual and didn’t appear to be feeling much pain.

[54]        On the video, an officer can be heard directing Mr. Roberts to “quit resisting” – twice.  We also hear Mr. Roberts say that he is not resisting.  The command to give the officer his hand – also twice – can be heard as well.

[55]        One hand was still underneath Mr. Roberts’ body and Cst. Gammie didn’t know if he had a knife or anything else that could cause harm.

[56]        He described that the struggle on the ground felt like a long fight and at some point he was aware that PDS Gator was involved and he heard Mr. Roberts yell “ouch” or “stop that” or something to that effect.

[57]        Shortly afterwards, according to Cst. Gammie, he was able to get the other arm and place the handcuff on him.

[58]        Cst. Gammie testified that as soon as the handcuffs were on, Cst. Gammie yelled “cuffs on - cops off”.  This can be heard in the video.  As he testified, the reason he does this is:

[59]        Once the cuffs were on, Cst. Gammie took most of his weight off Mr. Roberts and held him to that position.  He testified that Mr. Roberts continued to struggle, kick and flail with his feet and that is why he was eventually hobbled with the rip hobble.  At one point, according to Cst. Gammie, Mr. Roberts tried to grab at his hand.  He has had people in that state grab his hand or fingers and has had a finger broken that way.  Cst. Gammie believed that may have been Mr. Roberts’ intent.  Cst. Gammie’s words to Mr. Roberts can be heard on the video – “did you just try to grab my hand…?”

[60]        His impression was that Mr. Roberts’ actions were, in his words, heightened as he testified:

[61]        Police are trained in use of force and when to deploy ever increasing degrees of force.  The IM/IM (Incident Management Intervention Model) is often simply referred to as the Wheel of Force.  The degree of force that an officer can use depends upon the officer’s perceptions of the degree of control over a subject and the person’s level of compliance.  At the very low end is a situation in which simple officer presence and a cooperative person is enough to establish control of the situation.  As the level of aggression or resistance by the person increases, so does the level of officer intervention that is required.  At the mid-range of the model is a person who is actively resisting.  The officer’s physical control increases from soft to hard as the level of aggression increases to the assaultive category.  At the top of the wheel is a person who is causing or may cause grievous bodily harm or death.  The officer’s response may require lethal force to prevent death or very serious injury.

[62]        I have appended a copy of the IM/IM to these reasons so this model can be better understood in the context of my reasons.

[63]        The model requires the officer to conduct a continual and ongoing assessment of the level of cooperation from someone and the degree of force required to bring the person and the situation under control.  It requires a continuous risk assessment and evaluation of what is often a dynamic, rapidly changing and dangerous situation.  The risk may be to the officer, or another officer, to the public or to the subject. 

[64]        Using the model as a means of Cst. Gammie’s assessment of Mr. Roberts’ actions while he was behind the wheel of his car, placed him at the grievous bodily harm or death level.  He was certain that had Mr. Roberts continued to drive, he probably would have killed someone.  After Mr. Roberts was under control, Cst. Gammie can be heard telling Mr. Roberts that he endangered many lives.

[65]        While they were dealing with Mr. Roberts on the ground, he would have placed him in the assaultive category because Mr. Roberts was actively fighting with the officers.

[66]        In cross examination Cst .Gammie agreed that his adrenaline level was very high throughout the pursuit and when he began to effect the arrest.  He agreed that it was an emotionally charged situation. 

[67]        He agreed with the suggestion that Mr. Roberts was not trying to flee the vehicle once it was stopped.  In cross examination he was asked if Cst. England delivered a blow to Mr. Roberts’ head “right off the bat”.  He testified that he did not see that.  Nor, when asked, did he see Cst. Dormuth deliver baton strikes to Mr. Roberts.  He also testified that his full focus was on the driver and he was not looking at what his partners were doing although he was involved in the same first initial contact with Cst. England.  Cst. Gammie gave evidence that he did not strike Mr. Roberts in the head while Mr. Roberts was still in the car. 

[68]        At one point after Mr. Roberts was restrained and lying on his side, he attempted to roll backwards.  Cst. Gammie can be seen using his foot to roll Mr. Roberts back into the “recovery” position on his side.  In cross examination he was asked if that was necessary and if he could have used his hand instead.  Cst. Gammie candidly described it as a “lazy” action.  My impression was that it was not forceful and it was not intended to harm Mr. Roberts.

[69]        At the time of this incident, Cst. England was a 16 year veteran of the RCMP.  He has had a varied career including general duty, major crimes and he also spent time on the Emergency Response Team (ERT).  In 2009, he transferred to the Campbell River detachment with the police dog service.  He worked with one police dog from that time until June 2016 when he graduated from the training centre at Innisfail, Alberta with his new police service dog, Gator.

[70]        Police service dogs are trained to search for evidence or people as well as in criminal apprehension.  Cst. England described the training that a police service dog and his partner undergo with regard to the latter duty:

[71]        Cst. England testified that there are RCMP policies which he described as guidelines for when he should or shouldn't use a police service dog.  He described that it is sometimes difficult because they are advised not to track someone for a minor offence such as shoplifting but they also expect the officer and his dog to search for missing children or other vulnerable people.

[72]        On July 30, 2016, Gator was still quite new and had been with Cst. England in the field about one month and a half.

[73]        Cst. England, with Gator, was on duty that night and he heard over the radio that Cst. Ushock had stopped or attempted to stop a suspected impaired driver who had fled in his vehicle.

[74]        He travelled into the downtown core to assist and as he arrived in the vicinity of the McDonald's in downtown Campbell River, he spotted Mr. Roberts’ vehicle.  He saw it collide with Cst. Ushock’s vehicle which was then disabled.  He described that at that point he was the primary vehicle and followed it for about several kilometres.

[75]        He described that Mr. Roberts circled several times in the Campbellton area and eventually ended up northbound on Ironwood Street where it struck the spike belt laid by Cst. Ushock causing it to slow substantially.

[76]        He described that he continued to follow Mr. Roberts’ vehicle through the downtown core.  Mr. Roberts still refused to stop although he was being chased by police vehicles with activated emergency lights and sirens.  In addition to Cst. Gammie, Cst. England and Cst. Dormuth were also in pursuit.  Cst. England's vehicle made contact with Mr Roberts’ vehicle twice – causing substantial damage to it but still Mr. Roberts did not stop.

[77]        Notwithstanding a number of vehicle impacts and striking a spike belt, Mr. Roberts still continued to flee.  Eventually Cst. Gammie was able to stop Mr. Roberts’ vehicle by striking it at the rear causing it to spin around.  Cst. England pinned Mr. Roberts’ vehicle by striking it head on.

[78]        Cst. England described being very concerned, not only for the public, but also for the passenger who was in Mr. Roberts’ vehicle and described Mr. Roberts’ actions as very reckless and very aggressive.  He had concerns as to whether or not Mr. Roberts was being suicidal or whether it was simply, as he described, absolute disregard for the safety of himself and others.  He also was concerned that, perhaps, the passenger was being held in the vehicle against his will.  The last observation was made because the passenger had his hands out the window at one point.

[79]        As Cst. England pinned Mr. Roberts’ vehicle and was able to look into its windshield, he described that Mr. Roberts was “wildly” trying to get out of the vehicle.  His perceptions at that time were that Mr Roberts had no intention on cooperating or surrendering.  He said this:

[80]        Cst. England got out of his vehicle, went around the back of his suburban and took out Gator by the collar.  As he and Gator came around the back of his police vehicle, he saw Mr. Roberts’ hand outside the vehicle working the handle of the car "like he still trying to get out of the vehicle."  There could have been a number of reasons why he was doing that – “intoxicated and can’t figure it out, maybe a broken handle, or damage from the collision.”  Whatever the reason, he was certain that Mr. Roberts was trying to get out.

[81]        He grabbed Mr. Roberts by the hand that he had out of the vehicle to gain control of it and saw that there was no weapon there.  He described that Mr. Roberts initially very aggressively pulled back and because he was holding on so tightly pulled Cst. England slightly into the window.  Cst. England also described that at that point Mr. Roberts swung at him but missed his face.  As he described, Mr. Roberts was "starting to really swing hard".  It was at this point that he had to let go of Gator briefly and as he described "delivered one very solid strike to him."  He was not able to say where he hit Mr. Roberts describing this as a "melee" and trying to reach into the vehicle to control Mr. Roberts.

[82]        When asked where he would place Mr. Roberts on the wheel of force model at that time, he testified that he would describe Mr. Roberts as at the assaultive level.  It was unknown to him at that time whether Mr. Roberts had access to weapons and he described his aggression level as extremely high.

[83]        Cst. England's evidence is that Mr. Roberts did not throw one punch, but multiple punches.

[84]        After Gator was released he was distracted by the presence of bystanders walking to the scene as well as an unleashed dog.  Cst. England had to leave the side of Mr. Roberts’ vehicle to retrieve Gator and went back to the car.  He described that the other officers will were still trying to get Mr. Roberts out of the vehicle and he was able to help take Mr. Roberts out of the vehicle and away from the vehicle.

[85]        When asked about what direction or commands he was giving to Mr. Roberts throughout this time his candid response was he was not sure what he said describing it as "a bit of a mix-up" but the directions were designed to get Mr. Roberts to show them his hands.

[86]        As he said in his evidence:

[87]        He described that he “kind of” recalled that Mr. Roberts was taken out of the vehicle by two other officers - Cst. Dormuth and Cst. Gammie - who had him by the upper body.  He described that Mr. Roberts’ leg was kicking and swinging.  He still had Gator in one hand and was trying to secure the leg to stop the motion.  He described that power comes from the legs if someone wants to get up, flee or strike officers.  The purpose of grabbing the leg was to control his actions.  He described putting weight on it but that he was getting no compliance or Mr. Roberts.

[88]        As he described, there is no way to arrest someone who is not cooperating without the use of physical force.  As he stated:

[89]        The situation was also compounded by the fact that people from nearby houses were approaching the officers and the scene and were not following aggressive commands from the officers to withdraw.  He did not know whether these people were anti-police or pro-police or whether there was a risk that these individuals would step into the fray.

[90]        Cst. England, as he was trying to put weight on Mr. Roberts’ leg, described that Mr. Roberts was bucking and "trying to get out, get his hands free."  He didn't hear Mr. Roberts say clearly that he was giving up or that he's going to cooperate and described that even if those words were being said, they did not match Mr. Roberts’ actions.  He described the struggle on the ground as a melee.  He was trying to pin him and the fighting was still going on.  Cst. Thompson at some point also joined them to try to control Mr. Roberts’ lower body.  Cst. England saw Cst. Thompson make baton strikes (to Mr. Roberts’ leg) in an attempt to control Mr. Roberts but he described that those weren't effective.

[91]        Referring to the force intervention model (IM/IM), he described the escalation of both Mr. Roberts’ responses and the police response.  Starting at the beginning, officer presence and observation of a police vehicle was not effective.  Communication was not effective.  The officers wrestling and fighting with Mr. Roberts in their attempt to physically control him was not effective.  He described that moving into baton strikes is into the “hard” segment of the model which can then go all the way to lethal force if the suspect’s response is in the level of grievous bodily harm or death.  I keep in mind here that Cst. Gammie also described Mr. Roberts at the assaultive portion of the model in which hard force may be required.

[92]        Cst. England testified that he thought at some point the four officers were going to be able to get Mr. Roberts under control but:

[93]        He testified that this was intentional and that he directed Gator to bite in an effort to gain pain compliance, handcuff Mr. Roberts and remove the dog.  Cst. England described that almost immediately after the command and the bite, there was a response by Mr. Roberts.  His evidence is that at the time he made the command, Mr. Roberts was not handcuffed.  He saw another police officer stand up which was Cst. England's signal that they were getting compliance from Mr. Roberts and that the officer was in control of Mr. Roberts’ arms and hands.  He asked Mr. Roberts if he was "done fighting" and Mr. Roberts answered in the affirmative.  It was at that point that he commanded Gator to disengage which he did immediately and he and the dog backed away.  An ambulance was then called for Mr. Roberts.

[94]        In cross-examination, while watching a video and audio depiction of the events, Cst. England testified that he could hear Mr. Roberts saying that he was bitten prior to Cst. Gammie saying "cuffs and on, cops off".  Also in cross-examination he testified that Mr. Roberts was only bitten once.  He was not questioned in cross examination about the way a police dog is trained to bite – locked in or several bites.

[95]        He also testified, as we were watching and listening to the video, that he could hear himself give Gator the command to release Mr. Roberts.  This was a very short time after Mr. Roberts was handcuffed and the struggle came to an end.

[96]        In cross-examination, Cst. England described the situation as intense.  He agreed that he was afraid for his safety, public safety, as well as Mr. Roberts own safety, but denied that he was angry.  He did not agree that his adrenaline was running "at its highest" given that he had been in many situations through the force and exposed to a number of significant and serious situations.  In direct examination he had referred to his participation in the Emergency Response Team and being involved in a shooting when he had only four or five months service as well as several manhunts in which police officers have been killed.  He described he had been involved in generally high risk situations.

[97]        The RCMP operational manual has policies for police service dogs and specialty service dogs.  Cst. England was cross-examined by counsel for Mr. Roberts on this policy.  He was taken through the section of the operational manual dealing with the key tasks of police service dogs and agreed that nowhere in the policy did it suggest or imply that he could use his police dog as a weapon when effecting an arrest.  He also agreed in cross-examination that the policy did not state anywhere that he could deploy or use his police service dog because an accused or suspect was being combative.

[98]        In cross-examination, counsel referred to section 1.1 of the manual which sets out the key tasks of a police service dog which includes locating evidence, suspects, protecting VIPS’s, searching for explosives, etc..  She suggested that those were exhaustive and because Mr. Roberts did not actually flee at the scene of the arrest and Gator was not required to locate evidence or a suspect, that Cst. England's actions in taking Gator out of his vehicle in the first place was impermissible according to policy.

[99]        Cst. England gave evidence that he thought Mr. Roberts was attempting to flee when he saw his hand outside the car door trying to open up the door handle.  He disagreed with the assertion that he had not considered whether other alternatives were available before he made the decision to take Gator out of his vehicle.  He testified that having Gator with him in the circumstances of this case would allow Cst. England to stop Mr. Roberts from fleeing if he tried.

[100]     Mr. Roberts was clearly intent on avoiding arrest.  He even continued to evade police after repeated attempts by the pursuing officers to stop his vehicle by striking it with their own vehicles and even after both driver’s side tires were punctured by a spike belt.  Cst. England’s belief that Mr. Roberts was attempting to quickly exit his vehicle and continue to evade police by fleeing on foot was a reasonable one in the circumstances.  It must be remembered that he was the first officer who could see Mr. Roberts immediately after the pursuit came to a stop and his observations at that point in time and his rapid decision to remove Gator from the police vehicle in the event Mr. Roberts fled on foot should not be criticized.

[101]     Furthermore, the operational policy refers to key tasks of police service dogs.  It does not say those are the only tasks of a police service dog.  The fact that the operational manual also includes a section designed to give guidance to police officers who are deploying a police service dog "as a method of intervention" does not support the suggested very narrow interpretation of section 1.1 of the policy as argued by defence counsel.

[102]     Section 3 of the operational manual establishes the following policy in relation to the IM/IM:

[103]     This clearly contemplates that a police service dog is used or can be used not only as a tool, but also as a weapon although the policy requires the officer handling the dog to ensure all other reasonable intervention options have been considered.

[104]     Cst. England was called back for a further cross examination after a copy of the Dog Handler Training Course Materials (Dog Handler’s course) were provided.  The use of a PSD for criminal apprehension is considered use of an intermediate weapon:  Dog Handler Training Course; PDS and the IM/IM – Level II ES 13C. 

[105]     In the course of the cross examination, Cst. England agreed that depending on the circumstances, a dog handler will try to advise the subject that they are under arrest before sending the police dog and that he never did get an opportunity to advise Mr. Roberts that he was under arrest before deploying Gator.  The Dog Handler’s course material clearly indicates they are to advise the subject that they are under arrest if “time and tactics allow”.  Cst. England did not have time or opportunity to do so given the dynamic nature of this arrest.

[106]     He agreed that dog handlers are taught that the dog should bite only to defend himself, to defend the officer or on a command when a subject is in place.

[107]     Throughout defence counsel's very vigorous cross-examination, it was suggested to Cst. England that he (erroneously) believed he "could use a police service dog simply when (he is) dealing with a combative accused or if it was a difficult arrest.  However, it is important to point out that Cst. England's evidence, supported by the Policing Standards, is that a police dog can be used, if necessary, just like any other tools a police officer has.  In particular, contained within the Provincial Policing Standards are the Principles For Standards For Police Service Dogs.

[108]     Section 1.4 states the following:

[109]     The British Columbia Provincial Policing Standards, as are the training materials, are clear that when practicable, police dog handlers should give a loud verbal warning prior to permitting their dogs to bite and ensure that their police dog releases of bite as soon as reasonably possible.  Cst. England was actively trying to control Mr. Roberts along with three other officers and Mr Roberts knew that Gator was present.  I do not think that Cst. England can be faulted for not warning Mr. Roberts that he was about to give Gator a command to bite.

[110]     He was cross-examined about the involvement of The Independent Investigations Office (IIO).  He testified that he was not aware that his Sergeant contacted the IIO as a result of Mr. Roberts’ injuries.  His evidence was that his supervisor, a corporal, was on the scene of the arrest and that it was the latter's responsibility to ensure that the relevant individuals or department was called.

[111]     In July, 2016, Cst. Campbell had been a member of the RCMP for approximately six years.  He testified that on the night in question he was at the other end of Campbell River and heard over the radio of an incident involving Cst. Ushock and a traffic stop that worsened into a pursuit situation.

[112]     As he made his way downtown, he kept receiving updates over the radio.  At one point Mr. Roberts’ vehicle passed him while it was being pursued by Cst. England's SUV and Cst. Dormuth's vehicle - both with lights and sirens.

[113]     He thought that at some point the vehicle would stop and this might turn into a foot chase or some other situation.  He testified that, finally, Cst. Gammie was able to stop Mr. Roberts’ vehicle just past dogwood on 16^th Avenue.  Cst. Campbell was the fourth member to arrive on scene.  He saw Cst. Gammie draw his firearm and knew that he had a view of the driver's side of the car.  His first reaction was to draw his firearm but holstered his once he saw Cst. Gammie do the same thing.  He saw three members on the driver side of the car.  He saw there was a passenger in the Roberts vehicle so he went over to that side of the vehicle.  The window was down and the passenger side of the vehicle was damaged.  He told the passenger that he was under arrest and to get out of the vehicle.

[114]     The passenger was very cooperative and because the door was jammed he climbed out through the window.  He was compliant, non-resisting and willing to get out of the car.  Cst. Campbell handcuffed the passenger and placed him on the ground beside his police vehicle.

[115]     As he was dealing with the passenger, Cst. Campbell's evidence is that he could see that Mr. Roberts, in the driver seat, was actively fighting the members.  Mr. Roberts’ left arm was on the driver side door, he was leaning back so his head was away from the window and, according to Cst. Campbell, he was using his right hand with a closed fist to strike out.

[116]     At that point in time, he decided that he was going to go through the passenger side and grab Mr. Roberts’ right arm.  As he was going in or leaning in through the passenger window to reach for Mr. Roberts’ right arm, he saw Gator:

[117]     Cst. Campbell had to run around Cst. England's suburban and when he arrived at the location where the other officers had Mr. Roberts, he could see them trying to get Mr. Roberts to the ground and under control.  He saw Mr. Roberts’ left arm and focused on trying to gain control of that and get handcuffs on it.  He was able to handcuff Mr. Roberts’ left arm, pinned it with his right knee and attempted to get Mr. Roberts’ right hand which he described as buried under the driver and he couldn't pull it out.

[118]     He described that Mr. Roberts was fighting that movement.  On the video marked as Exhibit N he can be heard to say “I've got handcuffs on the left”.  Police officers receive training in two-man handcuffing.  Cst. Campbell was so focused on trying to get Mr. Roberts’ right hand handcuffed he was not sure which member was assisting him with that.  He did see another officer help grab the arm and forced it closer so that he could get the handcuffs on but he did not know who that was.

[119]     Prior to having the other hand assistance, he described Mr. Roberts as actively resisting and still fighting the officers.  He also testified that prior to dealing with Mr. Roberts, he had some concerns about Mr. Roberts remaining behind the wheel of his car.  He testified that while Mr. Roberts’ vehicle would not have been able to move forward given the presence of Cst. England's vehicle, the vehicle still could have been put into reverse and then driven forward and could have endangered officers standing around in that vicinity.

[120]     The photographs taken at the scene confirmed that was possible because Cst. Gammie's police vehicle collided with the passenger side quarter panel, not the rear bumper.

[121]     Cst. Campbell confirmed that he could hear himself on the video (at timestamp 12:42) saying the cuffs are on and then he also heard Cst. Gammie repeating this.  In fact, we know that Cst. Gammie said "cuffs on, cops off".

[122]     Cst. Campbell described the importance of handcuffing as follows:

[123]     On cross-examination he testified that his adrenaline levels were higher than normal but disagreed with the suggestion that he was not employing a rational thought process during a dynamic arrest.

[124]     Cst. Campbell's evidence is that he was so focused on securing and handcuffing Mr. Roberts’ hands, he was unable to give any evidence about when Mr. Roberts received the bite by the police service dog Gator.  As he testified, he didn't even realize that the dog was there.

[125]     Also in cross-examination, it was put to him that as he looked in through the passenger window, Mr. Roberts was right up against the steering wheel as a result of his size.  His response was that he recalled space between Mr. Roberts and the steering wheel and recalled seeing him leaned back.  He also described that the space or the amount of space varied because Mr. Roberts was moving back and forth.

[126]     Cst. Dormuth, at the time of the events involved in this case, had been a member of the RCMP for approximately 14 years.

[127]     He was working that night in the detachment when he heard over the radio that Cst. Ushock had attempted a traffic stop and that the vehicle was now in flight.  Cst. Dormuth immediately left in his unmarked police vehicle to assist.  He was able at some point to catch up to Mr. Roberts’ vehicle as can be seen on the video available from his dash cam.

[128]     As he followed the Roberts’ vehicle, Mr. Roberts put his left-hand and arm out of the window.  As can be seen on the video, his arm is up and appears to be almost waving with his hand – I was unable to determine if his hand or fingers were moving.  Cst. Dormuth's evidence was he thought that was an indication from Mr. Roberts that he was pulling over and that is why Cst. Dormuth pulled up beside him at that point.  However, Mr. Roberts did not stop and kept driving, followed by Cst. England, Cst. Gammie and Cst. Dormuth.

[129]     Mr. Roberts struck the driver’s side of a civilian pickup truck.  Cst. Dormuth at this point was the third vehicle following Mr. Roberts.  Cst. Dormuth stopped beside the driver of the pickup truck to ensure that he was not hurt or injured.  Once he confirmed that the driver was uninjured he continued the pursuit.

[130]     By the time he caught up with the other officers, Mr. Roberts’ vehicle had been stopped.  He saw Cst. England with Gator and Cst. Gammie at the driver side door trying to get Mr. Roberts out of the vehicle.  Cst. Dormuth testified that this was the first priority and to get Mr. Roberts into custody because:

[131]     He described that Mr. Roberts was resisting and fighting.  His evidence is that Cst. England was trying to deal with Mr. Roberts as well as keep control of Gator at the time so Cst. Dormuth stepped in front of him to try to get control of Mr. Roberts.  His evidence is that all three officers were ordering Mr. Roberts to get out of the vehicle.

[132]     On the audio and video we can hear Cst. Dormuth, say "assault PO".  When asked what had happened at this point, his evidence is that he started to go into the vehicle after Cst. England took a step back.  As he was going into the vehicle, he was in front of Gator who grabbed him by the arm.  Cst. Dormuth was momentarily distracted and looked towards Gator.  As he looked back to Mr. Roberts he saw Mr. Roberts’ right arm moving towards him and he was struck in the left cheek with Mr. Roberts’ closed fist.

[133]     When the audio and video was played for Cst. Dormuth, Cst. Dormuth testified that he could hear Mr. Roberts reply, after the command to open the door, "I'm going to F… You up".  I listened to the audio a number of times and although it is difficult to hear all the words clearly, Mr. Roberts was swearing at the officers and I believe that I could hear Mr. Roberts say that.

[134]     Cst. Dormuth testified that he told Cst. England and Cst. Gammie to stand back and, deploying his police baton he delivered three strikes -- one to Mr. Roberts’ upper shoulder, to his lower arm, and to his upper arm shoulder area again.  He testified that he was delivering these blows through the window and they may not have been effective.  His evidence was that Mr. Roberts continued to resist and was trying to fight, in spite of the baton being deployed.  Cst. Dormuth testified throughout his time with the police force that he has only had to use his police baton on one prior occasion.

[135]     He was questioned about his dealings with individuals who started to walk towards the scene from a nearby home.  I could see on the video that one man appeared to come quite close to the officers who were still struggling with Mr. Roberts.  This man also had an unleashed dog running around in the area – this is the dog that distracted Gator.  Cst. Dormuth's evidence is that it is an officer safety issue when this occurs and that was why he yelled at the one gentleman to get back and go into his house.  He also could see other people starting to come out of the house and he wanted to ensure that all of them could hear him as well.

[136]     Cst. Dormuth's observations are that after Mr. Roberts was taken out of the vehicle and was on the ground, he was still forcibly resisting attempts to arrest him.  He can be seen on the video at Mr. Roberts’ head and can be heard yelling "quit resisting, quit resisting".  Cst. Dormuth delivered stun strikes to the upper part of Mr. Roberts’ head.  He testified that the purpose of delivering that type of blow is to shock the individual for a brief moment which allows muscles to relax and enables the officer or officers to gain control of the hands and situation and get the person handcuffed.  He testified that he did not use full force when he made the strike or strikes and that he still did not get compliance from Mr. Roberts.

[137]     He was asked about Mr. Roberts being heard saying "I'm not resisting".  Cst. Dormuth's evidence on this point is that while Mr. Roberts was saying those words his actions were not consistent.  Cst. Dormuth's evidence is that Mr. Roberts was still resisting and he was still not complying with their orders or allowing them to get his hands behind his back for handcuffing.

[138]     He testified that the importance of handcuffing is to allow a police officer to take control of that person, reduce the opportunity for injury to a police officer and obtain, from the individual, compliance with police directions.

[139]     There is concern if only one handcuff is on, as occurred initially here.  If that arm becomes loose, the swinging handcuff can be used as a weapon.

[140]     In describing this arrest, Cst. Dormuth testified that it was "exceptionally long" and:

[141]     He also testified that:

[142]     On the audio and video, Cst. Dormuth can be heard ordering Mr. Roberts to put his hands behind his back.  Cst. Dormuth recalled that Mr. Roberts’ hand was still underneath him.  The concern from Cst. Dormuth’s point of view in this situation is that people can carry weapons in their waistbands.  He did not know anything about Mr. Roberts, who he was and what weapons he may have possessed.

[143]     Cst. Dormuth testified that as soon as Cst. Gammie was able to handcuff Mr. Roberts and said "cuffs are on, cops are off”, he immediately stood up and stepped back.  At that point in time, Mr. Roberts was now in custody, under control and the immediate threat of a severe assault was limited.  Therefore, as he testified, there was no need for them to physically hold Mr. Roberts or cause more discomfort for him by all of them being on top of him.

[144]     Afterwards, Cst. Dormuth can be heard saying to Mr. Roberts:

[145]     He told Mr. Roberts that an ambulance was coming and he went back another time to ensure sure that he was all right.  He described that Mr. Roberts was much calmer, understood what they were saying and was very compliant at that time.  Cst. Dormuth described Mr. Roberts as appearing to be very remorseful.

[146]     Cst. Dormuth attended at the hospital so that his hand could be attended to and x-rayed.  His next dealings with Mr. Roberts where the next day when he met Cst. Ushock at the RCMP detachment.  He testified that they took Mr. Roberts back to the emergency department at the Campbell River Hospital to have the dog bite looked at again and the dressing changed.

[147]     Cst. Dormuth, in cross-examination, agreed that Mr. Roberts had led him and his fellow officers on an intense and dangerous police chase on the date in question.  He agreed that he was afraid for his safety and the public safety.  He agreed that his adrenaline was increased but he disagreed that his emotions were running high.  He did candidly agree, and concede, that his emotions were running high at a point seen in the video in which he can be heard muttering a comment about the bystanders who were coming too close to the arrest scene.

[148]     He agreed that when he was at the hospital his hand was x-rayed for possible fractures as result of the force that he applied to Mr. Roberts during his punch.  He also agreed that individuals from nearby homes started to gather and yell at the police as this arrest was taking place.

[149]     Cst. Dormuth was asked about the requirements of provision 38.09 of the BC Police Act which requires an officer, who is at the scene of an incident and where it appears that a person may have died or suffered serious harm as a result of the actions of an officer, to immediately notify the IIO.  Cst. Dormuth did not report Mr. Roberts’ injuries to the IIO but he did report what had occurred to his senior officer, the watch commander.  He testified that as a Constable, he has never reported to the IIO for that reason.  He testified that he was aware that Mr. Roberts sustained a very significant dog bite to his leg and that he required several months of hospitalization.  He agreed that it could be described as a serious injury. 

[150]     It was put to Cst. Dormuth in cross-examination that he did not take Mr. Roberts back to the hospital to get bandages changed.  He agreed that there was nothing in his report to Crown counsel, or his police notes, or his Subject Behaviour Officer Response Report with regard to this attendance.  In spite of that, he maintained his evidence that he did attend at the hospital with Mr. Roberts.

[151]     He agreed in cross-examination that he did not observe Mr. Roberts punch Cst. England.

[152]     Also in cross-examination, he was asked if it was typical for members of the RCMP to drive a prisoner to the bank machine to withdraw bail money.  He answered in the affirmative and he also agreed that he, along with Cst. Ushock, drove Mr. Roberts the next morning to the bank machine for that purpose.  I do note that none of the other officers who were asked about this practice had any familiarity with this practice.

[153]     He testified that he has done this three or four times in his career as a police officer.  He did not have any notes of that event nor was that mentioned in his report to Crown counsel or the Officer Subject Behaviour Report.

[154]     Cst. Thompson had been a member of the RCMP for approximately nine years at the time of this incident.  He has had additional training including a course entitled "Police and Public Safety Instructors Course" which was a three week review of police defensive tactics, high risk handcuffing, and techniques for controlling subjects.  Following that course he was granted certification as an instructor and he currently conducts training for members of the Campbell River detachment.

[155]     He was south of Campbell River when he heard over the radio about Cst. Ushock's situation and the pursuit.  He immediately headed to the area to assist.  When he arrived where Mr. Roberts’ vehicle had been stopped, he immediately took stock of the scene and the situation.  He saw Cst. Gammie and Cst. Campbell engaged in what he called a ground fight with Mr. Roberts.  There were no handcuffs on Mr. Roberts and he also saw that Mr. Roberts’ legs were free.  He went directly to Mr. Roberts’ legs to try to gain control and he explained, at length, the importance of gaining control during an arrest.

[156]     He described that Mr. Roberts was kicking and flailing.  His evidence was that he followed steps on the basis of the IM/IM.  Officer presence wasn't obtaining compliance nor was adding more officers to the situation.  He tried to use a joint lock to gain pain compliance and that didn't change the situation either.  He testified that he thought about whether Mr. Roberts was under the influence of drugs and that was part of his risk assessment.  Through his own policing experience he is aware that people under the influence of drugs can be very difficult to deal with because they sometimes do not seem to feel pain.

[157]     His evidence is that he was using a lot of strength to try to keep Mr. Roberts still but there was still no control.  He then made a decision to use his police baton as a means to increase the force to try to gain compliance and control.

[158]     Cst. Thompson also testified that somewhere during this struggle:

[159]     He described delivering a blow then reassessing and deciding if another application of force is required.  He also testified that when he was delivering the strikes, Gator started biting his thigh.

[160]     While listening to the audio and video he also confirmed that he can be heard telling Mr. Roberts to "give us your hand, give us your hand".  This is at time stamp 12:30 and 15 seconds later Cst. Gammie says "cuffs on, cops off".

[161]     Cst. Thompson never struck Mr. Roberts after he was handcuffed nor did he see anyone else strike him after he was handcuffed.  Between approximately 12:53 to 12:57, Cst. Thompson can identify Cst. England's voice saying "Gator, out".

[162]     Cst. Thompson also confirmed he can be heard on the audio after Mr. Roberts was under control.  On one clip he is speaking with another officer and says something to the effect that "he's bleeding from the dog bite but he's fine."  What he meant by that, according to his evidence, was that there was no real emergency that had to be dealt with at that time.  He can also be heard speaking to Mr. Roberts saying "you're good, you can breathe."

[163]     Cst. Thompson also spoke with one of the paramedics who had arrived on scene to assist Mr. Roberts.  There was some discussion about whether or not to remove the rip hobble.  In cross-examination, he agreed that what he said in relation to the paramedic asking whether the rip hobble could be removed, "let's give him a chance to reconsider his behaviour."  He agreed that it may sound like a punitive reaction but explained that they are responsible to ensure the safety of paramedics and they had just dealt with having a violent struggle with this person.

[164]     He also agreed in cross-examination that he thought about this case quite a bit and that the case was talked about with other officers, although not about evidence.

[165]     When it was directly put to Cst. Thompson that he had to find a way to justify the use of force on the date in question, his response was that he needed to articulate why he did what he did.  He expressed his view that he didn't care for the word "justify" and that the idea of justifying was the wrong way to consider matters because he acted in good faith, in accordance with the law and the best he could do based on the risk assessment and information he had available to him at the time.  He was also questioned about a report to the IIO.  He understood that he did not have to contact that body himself but that a senior police officer did.

[166]     Also in cross-examination, he was questioned again about his earlier evidence that he thought that prior to the baton strikes Cst. England had directed Gator to try to bite Mr. Roberts.  He also said that he was seeing this in his peripheral vision.

[167]     Mr. Roberts was 41 years old at the time of this incident.  On the day in question he had been drinking alcohol throughout the day.  He also had used cocaine and marijuana.  He did a line of cocaine about 30 minutes before, and the marijuana joint about 20 minutes before he left his residence.  He and his friend went to pick up some food and then go to a local beer and wine store.  He agreed that he was consuming alcohol when he was driving.  In fact, the photographs of the interior of the vehicle show two open beer cans in the console.  He had his passenger in the right seat with him.

[168]     Mr. Roberts’ evidence is that when they got to the liquor store he stayed inside the car while his passenger went in to get beer.  As they left he described being pulled over by Cst. Ushock.

[169]     When Cst. Ushock came up to the passenger window he got scared and felt like his whole life was going to be ruined, so he took off and continued to flee even though he was pursued by police officers with lights and sirens.  He was afraid of losing his driver's license and losing his new job as a garbage truck driver.  He described that after that, everything was like a big blur.

[170]     His evidence is that when his vehicle finally stopped, he put his left hand out the window and his right hand on the dashboard beside the steering wheel.  He is certain of this because it was then that he saw one officer’s gun pointed “out the window”.  He testified that he was hearing “please put your hands up”.  He described that he could see police officers “all over the place” and he couldn’t run - he was caught.  He testified that he had his arm out the window and they (the officers) ran up to him and that he started getting hit right away.

[171]     His evidence is that he couldn’t get out of his car right away when he was being ordered to do so because his door was broken – the interior door latch was broken off.  In the photographs of the interior of the car, the handle mechanism is missing.  He says he was trying to get the door open and the police dog "came in" so he moved back and tried to push the police dog away because it was "biting away".  According to Mr. Roberts, he described what happened next as follows:

[172]     He then described that once the door was open he got out and started to describe that they dragged him.  At that time he was taken back to his evidence about being punched.  I note that his evidence up to that point was just that he had been hit not specifically punched.  In any event, and he was asked, in a leading question, how many police officers delivered a punch right away?  Mr. Roberts then responded as follows:

[173]     When asked about the evidence that as the officers approached the vehicle Mr. Roberts was punching them, he denied that assertion and maintained that he had his hands out the window, one hand on the dash and that because there were police all around him, he was caught and he "just gave up."

[174]     He then went on to say the following:

[175]     He was unable to say which officer punched him first and that it happened very fast.  When asked how he could be so certain that he didn't deliver the first punch, his response was because his hand was out the window and (presumably his right hand) was on the dash and, sitting in that position, he would not have been able to swing a punch because he would have hit the steering wheel.  Later in his direct examination he was asked if it was physically possible for him to deliver blows given the way he was situated behind the steering wheel.  His response was, as best that I can make of it, that he could not punch right out of the window.  He then went on to say this:

[176]     He confirmed when asked that he was speaking about his left hand in this statement.  This is consistent with the evidence of Cst. England that he grabbed Mr. Roberts’ left hand and also that Mr. Roberts pulled Cst. England’s hand and at least part of his body into the vehicle.

[177]     When asked how many times he remembered being punched, his response was that:

[178]     He described that the dog’s head was between the steering wheel and his stomach.  He also volunteered in his evidence that he couldn't "really lean" because he was in a "little seat".  My impression from that evidence was that Mr. Roberts was responding to the evidence of Cst. Campbell who testified that he saw Mr. Roberts leaning back in his seat at the same time saw him punching or trying to punch the officers.  A little later in his direct examination, Mr. Roberts testified that there was about a foot of distance between the bottom of his steering wheel and his stomach.  This is consistent with Cst. Campbell's evidence.

[179]     Mr. Roberts was not bitten by the police dog at this time although he could see his teeth.

[180]     When asked how he physically reacted to the officers punching him, his evidence was that he returned punches because he had to defend himself.  Later, in his direct examination, he testified again that the only time he was fighting was in the car trying to defend himself.  In his cross examination, he agreed that he punched an officer - he didn't know who - with his right hand but maintained that it was only after he was hit.

[181]     Mr. Roberts, as he was entitled, sat through the entire trial listening to the evidence of the officers as well as watching the video played multiple times.  At one point in his direct examination he was asked if he thought it was physically possible for him to fit through his driver side window.  His response was to refer to an earlier officer's evidence about large men being able to get out of hatches in a tank.  He explained why he was of the view that he could not fit through the window but then went on to give the following evidence:

[182]     There was no evidence from any of the officers who were at his window that they asked him to climb out of the car.  I have the distinct impression, and accept, that Mr. Roberts was adding to his evidence after hearing Cst. Campbell on the stand.

[183]     He described for the Court how he tried to get out of his vehicle and that he turned towards the left trying to push his body to get up and get out.  Mr. Roberts’ evidence is that he then got taken out or down and he stumbled forward.  He denied that as he was being taken down that he was swinging with his hands or kicking with his feet.

[184]     He was asked if he remembered being hit with a baton while he was behind the steering wheel.  His evidence was that he remembered something hard but he didn't know if he got hit in the face with it.  His evidence was that he got hit pretty hard in his nose and he described that he was "gushing blood, and my hand got whacked real hard, too."  He clarified for the record, in referring to his hand getting hit, he was pointing to his left arm just above his left wrist.  He then said the strike was at the top of his arm because his arm was out the window.

[185]     He denied that he was combative when he was outside his vehicle.  When asked why he was so certain of that, his response was that he was laying on his stomach with his knees down and he couldn't move and he couldn't wrestle.  He described that he was laying on his stomach with both arms out by his side.  He changed that evidence under cross-examination saying that his arms went down when he fell down and possibly one arm may have been underneath him, but then said he didn't know.  While counsel, and the Court, were trying to clarify his evidence, Crown counsel asked if Mr. Roberts agreed with him that his evidence was a little bit shaky about where his arms were at the time he was on the ground.  Mr. Roberts replied that he knew, he should "stick with what (he) said yesterday” and then proceeded to show us again what he meant by his arms being out to the side and demonstrated his arms about 6 inches off to the side of his hips.

[186]     He also denied that he kicked Cst. Thompson.  He referred again to watching the video and explained that it appeared to him that Cst. Thompson was trying to lean forward to get his leg "more in".  He denied that it would have been physically possible for him to buck Cst. Thompson.  He said he was not flexible.

[187]     He was asked about Cst. Gammie's evidence that it felt as if Mr. Roberts was trying to bend Cst. Gammie's fingers.  Mr. Roberts evidence was:

[188]     He denied that he was swinging at the officers as he was being taken to the ground.  When asked how many times he was punched prior to finding himself lying on the cement and if he could recall, his evidence was that he didn't recall just that he:

[189]     He clarified that he felt he got hit very hard in the head but didn't know if it was a kick or punch but he remembered saying something to the officers to the effect that they hit him with a baton or something but then he watched the video and he saw that he got hit.

[190]     He described as he was on the ground that the officers were trying to handcuff him and they were bending his left arm.  He described it as “they’re trying to get it handcuffed” and he showed, while on the stand, that he had difficulty extending his arms further than midway up his back.  He described that he had big shoulders and it's hard for him.  He described and showed to the Court that he was able to touch his hands together as he reached behind his back up to the midway point of his back.

[191]     He then clarified that when he was on the ground being arrested, an officer had placed a knee on his back, they were yanking up his arms trying to handcuff him and he couldn't get his arms up.  He described that they were all laying on top of him and knees were on him.  He also then volunteered that he remembered the dog coming in and biting him and he wasn't handcuffed yet.

[192]     His evidence is that the police dog bit him three times and then when asked again, his evidence was “three to four times for sure” and the last time was after he was handcuffed.  He recalls the dog biting him and that he said something like “get it off me”.  He described that the dog was locked in and then finally let go.  When asked whether the handcuffs were on or off, he stated the handcuffs were on at that point.  When asked how he could be certain that the handcuffs were on, he started to explain that both arms were handcuffed and he was sitting on the ground but then he went on to say that he was not a hundred percent sure about that.

[193]     Mr. Roberts was asked about an interaction with Cst. Gammie while he was handcuffed and in the rip hobble.  Mr. Roberts’ evidence was that Cst. Gammie kicked him.  Later on in cross examination, he testified that while he was being handcuffed, Cst. Gammie kicked him in his side.

[194]     What Mr. Roberts is describing can be seen in the video.  Mr. Roberts was on his right side and had started to roll backwards.  Cst. Gammie, instead of leaning over with his hand and pushing Mr. Roberts back in the recovery position, used his foot to do so.  It was not what I would describe as a kick.  This is the movement that Cst. Gammie referred to it as lazy.

[195]     Mr. Roberts described being taken to the detachment after he was released from hospital.  He described that the officer he was dealing with, Cst. Ushock, was being very nice to him and that he was given water, a blanket, even a shirt that fit him.  He described having a telephone bail hearing and that bail was set at a $500 cash deposit.  He described that he was embarrassed and did not want to call anyone and asked the officers if he could give them his bank card so that they could withdraw the money for him.  He thinks that the officer or officers spoke with someone and their supervisor would not allow them to do that, but they were able to drive him to a bank machine so that he could take money out.  His recollection is that they then asked someone else or supervisor if that would be acceptable and apparently it was, so they took him to a bank machine.

[196]     Neither Cst. Ushock nor Cst. Dormuth were asked about this background during their cross examination about taking Mr. Roberts to a bank machine.

[197]     He was then released and he was driven home by Cst. Dormuth.

[198]     Mr. Roberts was injured in the course of this arrest.  The most significant injury was the dog bite injury to side of his right thigh.  He also sustained a fractured nose and had multiple contusions to his forehead and left wrist.  Unknown to Mr. Roberts and disclosed as a result of testing in the emergency department, he has diabetes.  As a result of that condition as well as infection, the dog bite injury required multiple surgical procedures and hospitalizations.

[199]     Under cross-examination Mr. Roberts candidly agreed that on the night in question he was driving a vehicle that had no insurance, with an invalid license plate, was intoxicated by alcohol, and had been using cocaine and marijuana.  He also candidly agreed that he was fleeing from the police, put his life in danger, put his passenger's life in danger as well as many other people's lives in danger.

[200]     Events occurred and Mr. Roberts was not able to recall those because they were not on a DVD or otherwise recorded.  For example, he couldn't remember if it was the bail judge who requested the cash deposit, he couldn't remember if Cst. Ushock had recommended no cash deposit and couldn't remember if it was Cst. Ushock who arranged for him to get money for bail.  When asked on cross-examination if he told Cst. Ushock to just shoot him, he couldn't remember. 

[201]     Upon arrival at the detachment after Mr. Roberts was released from the hospital, Cst. Ushock had been very careful to ensure that Mr. Roberts had an early opportunity to contact counsel if he so wished.  Mr. Roberts gave a warned statement to Cst. Ushock at around 11 am later that morning.  Mr. Roberts was clear that he wanted to cooperate and was prepared to give them a statement.

[202]     The words he used to describe why this happened were telling:

[203]     He told Cst. Ushock that he had done some cocaine that evening and he had been drinking and that is why he refused to stop and took off when Cst. Ushock pulled them over.  His statement to Cst. Ushock was also that he had cocaine in his possession that night, but under cross-examination his evidence was that he misspoke and denied being in possession of cocaine.

[204]     He said he didn't understand himself what he did that night and, even at trial, said he still didn't understand what was going through his head that night.  He told Cst. Ushock that his passenger had wanted him to stop.  When asked what he could remember after he spun out of Ironwood (I believe he's referring to the spike belt), Mr. Roberts said this:

[205]     It is at this point that Cst. Ushock told Mr. Roberts that there were no batons.

[206]     In cross-examination Mr. Roberts agreed with Crown counsel that he did not tell Cst. Ushock that he had actually put his hands up to surrender.  He agreed that he did not tell the police any words to the effect that he gave up.  He also agreed that when Cst. England was at the side of his vehicle he did not say words to the effect of "I give up."  Mr. Roberts’ response to the latter point was that he did not say he was giving up because Cst. England was telling him to "freeze, put your hands up."  He further qualified that answer by saying that his hand signs indicated he was giving up describing that he had his left hand in the air “out his window and up.”

[207]     When describing his actions that night, he told Cst. Ushock that it was the “stupidest thing” he had done.  He said he was sorry.

[208]     Under cross-examination, he agreed that the police he had contact with afterwards were helpful and he described it as a totally different attitude than at the scene.  He also agreed under cross-examination that he was a totally different person later that morning when speaking with Cst. Ushock.

[209]     He also agreed that after he had been handcuffed and hobbled, Cst. Dormuth went over to him promptly, called him “Sir”, and told him that the ambulance was coming.  He agreed that the officer or officers were assuring him moments after this happened and, that with the exception of Cst. Gammie rolling him with his foot, they were being nice to him.  He agreed that is what police officers are supposed to do.

[210]     Mr. Roberts’ evidence was that once he was handcuffed, one of the officers struck him with a police baton.  Watching the video had refreshed his memory that Cst. Thompson certainly struck him in the leg with a baton a number of times before he was handcuffed.  He agreed in cross-examination, after watching the video, that he was not struck by a baton after he was handcuffed. 

[211]     Mr. Roberts was asked during cross-examination if, after he was handcuffed, the dog bit him.  His response was "no."  He then gave evidence that after he was handcuffed, the dog bit him two more times.  In other words, his evidence was that the dog bit him three times.  While giving this evidence, he referred to watching the video and hearing the audio.  Specifically, he pointed out that he could be heard saying "ow" and then the officer can be heard saying "cuffs on, cops off," and then, after being handcuffed, he could be heard saying "ow, ow" again.

[212]     He also further clarified and gave the following evidence:

[213]     Counsel then suggested to Mr. Roberts that the dog's teeth came into contact with him before he was handcuffed.  His response was:

[214]     The leading decision respecting allegations of excessive use of force by police is R v. Nasogaluak (supra).  For the court, LeBel J., summarized the primary legal principles and statutory framework that are applicable in this case:

[215]     In Charter v. Greaves, 2001 O.J. No. 634, Power J., summarized a number of general principles the court must consider when excessive force by police is alleged:

[216]     It is clear that the court must allow police officers a certain amount of latitude when assessing the decisions they make and which are often made in dynamic, dangerous and difficult circumstances.  Hinds, Co. Ct. J., (as he then was) puts this nicely in Besse v. Thom (1979), 1979 CanLII 2791 (BC SC), 96 D.L.R. (3d) 657 (B.C.Co. Ct):

[217]     It would be a reversible error for this Court to begin a determination by starting with an assessment of the consequences of the injuries received by Mr. Roberts and then reason backwards that the force was excessive.  Rather, I must consider the nature of the force used and all the circumstances that existed at the time of the event:  R. v. Matson (1970), 1970 CanLII 1013 (BC CA), 1 C.C.C. (2d) 374 (B.C.C.A.) at p. 380.

[218]     Counsel for Mr. Roberts points to the following in support of the contention that excessive force was used to arrest Mr. Roberts:

[219]     Counsel also suggests that there was a cover-up and raised a number of points to support this contention including that an officer wanted to take pictures of Mr. Roberts’ injuries after he was cleaned up, that Cst. Ushock told Mr. Roberts no batons were used, that Cst. Ushock was exceedingly kind and considerate of Mr. Roberts; that Cst. Ushock and Cst. Dormuth took Mr. Roberts to a bank machine so he could get money for his bail; and lastly, that the police failed to accurately report Mr. Roberts’ injuries.  She also points to some inconsistencies in the evidence of the officers who were dealing with Mr. Roberts at the driver’s side window.

[220]     I will state at the outset that one of the allegations made by Mr. Roberts – that once he was handcuffed and on the ground he was struck several times with a baton – was not supported by the evidence at trial or the evidence of the video which was played during the trial.

[221]     Mr. Roberts did the best he could to remember the events of that night but a number of times he testified that things happened very quickly and that that evening was a blur.  That is consistent with his intoxication from alcohol, cocaine and marijuana.  There were numerous times in Mr. Roberts’ evidence when he referred to evidence that he saw or heard on the audio or video, and my impression was he couldn't necessarily remember but was piecing together what occurred or referring to statements that were made based on seeing and hearing the various DVD’s and witnesses.

[222]     There were many inconsistencies in his evidence and I will not, nor am I required to, refer to them all.  I will say that in general, I prefer the evidence of the officers to that of Mr. Roberts.

[223]     Dealing with the events as they unfolded at the door to Mr. Roberts’ vehicle, the evidence of the officers and Mr. Roberts is consistent - Mr. Roberts was punching and swinging at the officers.  However, Mr. Roberts says he was doing so only after he was punched first and he was defending himself.

[224]     I do not accept Mr. Roberts’ evidence that when his vehicle came to a stop, he had simply given up and put his hands in a position that indicated he was surrendering.  He referred to putting his left hand on the door and this is consistent with Cst. England’s evidence.  Later in his evidence, Mr. Roberts testified that his (left) hand was out and up although he didn’t elaborate.  There was no other evidence that his hand was raised other than the one time when he was in full flight from the police and refusing to stop his vehicle and surrender.

[225]     The events at the driver’s door were chaotic and dynamic.  It is easy to slow down the video and audio and attempt to deconstruct what happened on a second by second basis, but it is critical to remember that these officers had been attempting to stop Mr. Roberts for a lengthy period of time.  He was refusing to stop even after repeated collisions with the police vehicles (I counted five in total plus his collision with a civilian pick-up truck before he was forced to stop) and tires that had been shredded as a result of a spike belt.  He was driving erratically and dangerously through residential and other populated areas of the city.

[226]     I accept that Cst. England saw Mr. Roberts’ left hand on the door of the car.  I accept that Mr. Roberts was likely trying to open the door from the outside, and that is consistent with his evidence that the door handle was broken from the inside and he couldn’t find the zap strap that he used on the inside to open it.  He did as some point in his evidence testify that he was trying to get out of the vehicle.  Of course, Cst. England had no knowledge that the interior door handle was broken.

[227]     Counsel for Mr. Roberts spent considerable time cross-examining Cst. England on whether or not his action in taking Gator from his police vehicle constituted a deployment.  The definition of deployment in the Provincial Policing Standards defines deployment in this way:

[228]     While I did not see a specific definition of an operational task, this must refer back to the permitted uses of a police dog and when their use is authorized.

[229]     It is important to understand the context in which Cst. England made the decision to take Gator out of his vehicle.  He and other officers had been attempting to stop Mr. Roberts for a significant length of time.  In spite of a number of collisions and a spike belt, Mr. Roberts was still not cooperating.  He was still running from the police.  Cst. England would not have known, nor could he have known, that the door handle was broken on the inside of the driver's door of Mr. Roberts’ vehicle.

[230]     When Cst. England saw Mr. Roberts’ hand outside the door and trying to open the door from the door handle, his subjective belief that Mr. Roberts was going to flee from the vehicle is certainly objectively reasonable given that context.  It is also important to keep in mind that Cst. England was the first officer who could actually see Mr. Roberts and had to make a very rapid decision about what he was going to do to apprehend Mr. Roberts.

[231]     Because Cst. England was the first one to see Mr. Roberts, the fact that his evidence about Mr. Roberts trying to get out of the vehicle would differ somewhat from the evidence of Cst. Gammie and Cst. Dormuth is not surprising as they did not arrive until seconds later.

[232]     Cst. England was also vigorously cross-examined about why Gator was at the driver side door along with three police officers.  Cst. England testified that he made the decision to take Gator out based on what he saw.  Once he was at the driver side door he described that the situation evolved.  He did not have time to stop, put a leash on Gator, walk back to the truck, lock him in the truck and then come back to the situation.

[233]     As he said later in his cross examination:

[234]     I also accept Cst. England’s evidence that he grabbed Mr. Roberts’ left hand to prevent him from opening the door and as he did so Mr. Roberts very aggressively pulled his hand into the car.  Tellingly, when Mr. Roberts was being asked about what happened at his door, he gave evidence that he was “trying to pull too.”

[235]     Cst. England testified that it was at this point that that he saw Mr. Roberts’ right hand come towards him in a punch but missed.  He had to let go of Gator and struck Mr. Roberts.  The strike by Cst. England was defensive and also to gain control of, and compliance from, Mr. Roberts.  That did not occur and I find that Mr. Roberts continued to be combative.

[236]     Cst. Dormuth’s evidence is that he stepped up to the door after Cst. England took a step back.  Cst. Dormuth was struck in the left cheek by a punch from Mr. Roberts.  Mr. Roberts’ evidence is that he did punch one of the officers but didn’t know who.  It was at this point that Cst. Dormuth struck Mr. Roberts with three baton strikes to his left arm/wrist and upper body.

[237]     Cst. Dormuth was forthright about using his baton at this point.  The fact that Cst. Gammie didn’t see this is not an indication that he was trying to minimize the use of force by Cst. Dormuth.  It is reasonable that he simply didn’t remember or that he was so focused on getting Mr. Roberts’ door open that didn’t see it occur.

[238]     The baton strikes while Mr. Roberts was in the car were at attempt to gain compliance from Mr. Roberts who was punching and fighting with the officers.

[239]     I do not accept Mr. Roberts’ evidence that he had simply given up and surrendered.  He was inconsistent in his own evidence about his actions - testifying that his left hand was on the car door, then later testifying that his hand was out the window and up. 

[240]     I am unable to accept Mr. Roberts’ evidence that once his vehicle was stopped, he raised his left hand outside his window and was surrendering.  He can be seen doing that much earlier on Cst. Dormuth's dash cam.  Mr. Roberts continued to run from the police for quite some time after that action and it certainly is not indicative of a surrender.

[241]     None of the officers observed Mr. Roberts’ hand or hands being raised up in the surrender position.  It is inconsistent with their clear verbal demands to him to show them his hands - which were made multiple times and could be heard on the video.  His evidence about “trying to pull too” and punching is also inconsistent with a surrender.

[242]     Mr. Roberts’ evidence that when the officers ran up to his door he started getting out of the vehicle right away and “stepped out” of the vehicle is inconsistent with the evidence from the officers and the video.  It is also inconsistent with his evidence under cross examination that he was asked by the officers to climb through the window and after he told them he couldn’t’, and the door was finally opened, he got one foot outside the car and tried to lift himself out.

[243]     I watched the videos a number of times in the courtroom.  Although it is difficult to see Mr. Roberts’ entire body, it is clear that the officers are pulling him away from his car and towards the ground.  The video clearly depicts that the officers are struggling – their bodies and shoulders are moving in a manner completely consistent with trying to control a struggling and combative Mr. Roberts.  If Mr. Roberts had been completely cooperative, taking Mr. Roberts to the ground would have been conducted smoothly and quickly.

[244]     Mr. Roberts’ evidence that he wasn’t kicking or swinging or otherwise fighting with the officers is completely inconsistent with the video and I accept that Cst. Gammie, Cst. England and Cst. Dormuth were having a very difficult time trying to gain control over Mr. Roberts as they were attempting to bring him to the ground so as to handcuff him.

[245]     This fighting behaviour is also consistent with Mr. Roberts’ seemingly inexplicable actions that night, including fighting with the officers while he was in his car instead of surrendering.

[246]     Once they got Mr. Roberts to the ground, the video shows Cst. Gammie, Cst. Dormuth, Cst. Thompson and Cst. England continuing to struggle with Mr. Roberts.

[247]     Mr. Roberts is not well visualized on the video.  There are four police officers on top of him and they can be seen being jostled and moved around as they attempt to control him.  Mr. Roberts’ evidence that he had his hands out to his side and was on his stomach after he was taken to the ground was contradicted by his own evidence – at one point he said that perhaps he had one hand underneath himself.  It is also contradicted by the officers’ evidence which is confirmed in the audio/video. 

[248]     Mr. Roberts was initially on his back although he had been taken out of the vehicle face first and his back can be seen briefly on the video.  The officers demanded that he get on his stomach and then put his hand behind his back.  It was after Cst. Gammie’s stun blow that they were able to flip him over from his back to his stomach.  Cst. Dormuth also delivered stun blows to Mr. Roberts’ head in an attempt to get him to comply with their demands. 

[249]     After he was flipped over, Cst. Campbell was struggling to get Mr. Roberts’ left hand cuffed.  They continued to demand that Mr. Roberts give them his hand and that he put it behind his back.  These demands can be heard in the video.  Had Mr. Roberts’ hands been to his side and six inches away as he testified, it would have been a simple matter to place his hands behind his back and be handcuffed.  He demonstrated in Court that he could touch both hands up to the mid-level of his back.  I am aware that he lost weight after this incident but it illustrates the improbability of Mr. Roberts’ evidence.

[250]     During this struggle, the officers did not know whether Mr. Roberts had any concealed weapons and having his hands visible and handcuffed was critical to minimizing risk to officers as well as risk to Mr. Roberts.  Cst. Dormuth described this as the second longest arrest he has ever been involved in during his 15 years of service.  As both he and Cst. Thompson testified, the longer an arrest goes on, the more force that may be required to effect the arrest and as the potential of serious injury or harm increases the more dangerous it becomes.

[251]     Meanwhile, while Cst. Campbell, Cst. Gammie and Cst. Dormuth were trying to control Mr. Roberts’ upper body and arms, Cst. Thompson and Cst. England were trying to control Mr. Roberts’ legs.  They both testified that he was kicking and flailing.  Mr. Roberts’ legs can’t be seen in the video but it shows both Cst. Thompson and England moving up and down which is consistent with their evidence. 

[252]     The evidence in the DVD’s also clearly show that after the arrest, the officers are out of breath which is also consistent with a sustained struggle with Mr. Roberts. 

[253]     Cst. England made the decision to command Gator to bite Mr. Roberts’ right leg.  He did so because, in his words, four officers who were increasing the amount of force to gain control and compliance had not been able to get handcuffs on Mr. Roberts.  Mr. Roberts initially said that he was bitten after the handcuffs were on, but after listening to the video during the trial, changed his evidence to say that he was bitten three to four times, once before and then again after the handcuffs.

[254]     Cst. England’s evidence is that there was only one bite to Mr. Roberts. 

[255]     On further questioning by Crown counsel in cross examination, it was apparent to me that Mr. Roberts’ assertion that he was bitten three times is because he can be heard on the audio and visual DVD saying "ow" three times.  He is very clear that the first time he was bitten he was not handcuffed.  He also said that the first bite was significant.  Later on in his cross examination and after watching the video a few times, and being questioned about whether there are separate bites or if the dog has locked onto his leg, Mr. Roberts says this:

[256]     He also agreed that after Cst. Gammie is heard saying "cuffs on, cops off," the dog was still biting him and was still locked onto his leg during this time which was about 20 seconds.  He also agreed that during these 20 seconds, the dog was not biting him in various different parts of his leg.  In re-examination, he was asked if he had a specific recollection of being bitten three times.  His answer to that form of question was “yes”.

[257]     The evidence from the DVD’s is clear – Mr. Roberts responds to the dog bite before Cst. Gammie says “cuffs on; cops off.”

[258]     The video is clear.  Commands can be heard for Mr. Roberts to give the officers his hand and to stop resisting.  Cst. England gave the command to Gator and Mr. Roberts can be heard responding verbally with “ow –“, “ow” then an expletive followed by “dog … bite me” ….

[259]     Almost immediately afterwards, Cst. Campbell can be heard saying “cuff or cuffs on”.  Almost immediately after that occurs, Cst. Gammie is able to secure the remaining hand in handcuffs and says: “cuffs on, cops off.”  Cst .England asked Mr. Roberts if he was done fighting.  Mr. Roberts can be heard saying “ahhhh” and then Gator is commanded to release Mr. Roberts.

[260]     A PSD is considered an intermediate weapon.  Cst. England deployed PSD Gator in that capacity to aid in the apprehension and arrest of Mr. Roberts.  I accept his evidence that he was very concerned that the officers were still not able to gain compliance and control of Mr. Roberts and didn’t know if he had a concealed weapon.  He was concerned about officer safety and public safety but also Mr. Roberts’ safety.  He wanted to bring the struggle to arrest Mr. Roberts to an end.

[261]     Whether this was an apprehension in the course of a pursuit and flight from an officer or an apprehension during an arrest is, in my view, not significant to my decision.  However, it must be remembered that Mr. Roberts was clearly in flight during the vehicle pursuit and Cst. England believed he was still trying to take flight immediately after he was finally stopped.  The arrest and deployment of Gator was the culmination of a lengthy pursuit which I accept continued after Mr. Roberts’ vehicle was stopped.

[262]     Mr. Roberts was described as a large and very strong man.  At the time of this incident he weighed about 300 lbs.  He was behaving in a way that was not rational and was not responding to ever increasing levels of force.

[263]     The officers believed that he would kill someone if not stopped.  The comments by Cst. Dormuth and Cst. Gammie are apropos – immediately after Mr. Roberts was in custody, they both indicated that Mr. Roberts just tried to kill or had endangered a number of people.

[264]     A police officer is entitled to use force to complete an arrest or prevent an offender from escaping police custody, but is constrained by the principles of proportionality, necessity and reasonableness: Nasogaluak (Infra)

[265]     Section 25 of the Criminal Code also provides guidance in the exercise of a police officer’s use of force.  An officer is justified in using force to effect a lawful arrest providing he acts on reasonable grounds and uses as much force as is necessary: s. 25 (1).

[266]     An officer is not justified in using force that is intended or is likely to cause death or grievous bodily harm unless he believes, on reasonable grounds, that it is necessary for the self-preservation of that person or anyone under that person’s protection from death or grievous bodily harm: s. 25 (3) or unless the person to be arrested takes flight to avoid arrest: s. 25 (4).

[267]     Counsel for Mr. Roberts argues that while acknowledging that some force was necessary in this arrest, by the application of s. 25 (3), the officers were not justified to deliver the blows with the baton, the punch or punches to Mr. Roberts’ head or the dog bite.  She asserts that as a result of these actions, Mr. Roberts has suffered grievous bodily harm and refers specifically to the seriousness of the injury to his leg from the dog bite.  However, this level of force is also justified if the person to be arrested flees to avoid arrest, the force used is necessary to protect the peace officer or any other person form death or grievous bodily harm and the flight cannot be prevented by reasonable means in a less violent manner.

[268]     This section refers to force involving death or grievous bodily harm.  I disagree that the baton strikes or the blows to Mr. Roberts’ head (whether while he was in his car or on the ground) amount to grievous bodily harm.  With regard to the dog bite, it is clear that I must assess the seriousness of the injury by examining the events at the time, not prospectively.  This is important because, as previously stated, due to his diabetes and infection, Mr. Roberts went on subsequent to his arrest to have serious complications as a result of the dog bite.

[269]     Is the delivery of a dog bite to Mr. Roberts’ leg one that falls within s. 25 (3) in that it is likely to cause grievous bodily harm?  I think generally not.  This section is to impose constraint against use of deadly force – force that will either kill or result in very or extremely serious injuries.  I do not accept that a dog bite is likely to cause such a serious injury that it is equated with something as significant as death.

[270]     But in the event I am wrong, I find that this arrest was the culmination of a lengthy high speed pursuit during which Mr. Roberts was fleeing from the police and that Cst. England had reasonable grounds to believe that Mr. Roberts was still intending to flee even after his car was finally stopped.  His belief is objectively reasonable on the basis that upon stopping, he immediately saw Mr. Roberts trying to get out of the vehicle and then saw his hand on the door and working the door handle.  His decision to take Gator out of his police vehicle was a reasonable one.

[271]     Once Mr. Roberts was on the ground, the officers were still struggling to place handcuffs on him, gain control and prevent Mr. Roberts from continuing to evade arrest.  The longer an arrest continues, the more dangerous it becomes.  Furthermore, I accept Cst. England’s evidence that he was very concerned about officer safety – Mr. Roberts had not been searched, he was behaving in a violent manner and had already endangered many lives by driving recklessly through downtown Campbell River.

[272]     I accept that he was appropriately very concerned about harm to himself and his fellow officers, to the public and to Mr. Roberts.  As he said in his evidence, Mr. Roberts was not responding to increasing levels of force.  His deployment of Gator was another level up in the IM/IM use of force model.  Immediately afterwards, Mr. Roberts was handcuffed and under control.

[273]     I find that the use of Gator to gain compliance and control was objectively reasonable, necessary and proportionate in the circumstances.

[274]     Furthermore, the actions of these officers should not be judged by a standard of perfection.  The police have to make many difficult decisions in circumstances that are dangerous and rapidly changing.  They must react quickly and risk their lives in the line of duty.  Courts should not be too quick to judge their actions in minute detail while in the calm environment of a courtroom.

[275]     The last issue I wish to address is the suggestion that there was some form of cover-up following this incident.  I will deal separately with the specific allegations.

[276]     Mr. Roberts told Cst. Ushock he remembered being punched by a police officer, trying to get out of the car, being on the ground and getting hit “by a baton once.”  He remembered he had handcuffs on.  Cst. Ushock told him there were no batons.

[277]     Counsel for Mr. Roberts suggested to Cst. Ushock that when he arrived at the arrest scene, he knew the force used was excessive and that is why she he tried to suggest to Mr. Roberts that no batons were used in effecting his arrest.  Cst. Ushock’s evidence was that he believed that to be correct based on the information he had at the time.

[278]     A video with synchronized audio was played during the course of the voir dire.  I have viewed it again during the course of reaching my decision.  Cst. Ushock is seen running up to and arriving much later at the scene of the arrest - and after Mr. Roberts was on the ground.  At about the same time, Cst. Thompson can be seen using his baton and is squatting by Mr. Roberts’ legs.  At this time, Cst. Ushock is looking down towards Mr. Roberts.  At the same time, Cst. Gammie and Cst. Dormuth are at the front of Mr. Roberts, Cst. England and Cst. Thompson are near Mr. Roberts’ legs.  By the time Cst. Ushock gets to where Cst. Thompson is, he has stopped using the baton.  It is entirely reasonable that Cst. Ushock did not see Cst. Thompson raise his baton given that he arrived after the baton was first deployed and went to Mr. Roberts’ legs after Cst Thompson put away his baton.  I am not satisfied that Cst. Ushock would have been able to see Cst. Thompson using the baton and, furthermore, Mr. Roberts in his statement, is referring to being hit by a baton once the handcuffs were on and that clearly did not occur.

[279]     I find that Cst. Ushock was not attempting to mislead Mr. Roberts.

[280]     Counsel also suggested that Cst. Ushock went out of his way to be friendly and accommodating to Mr. Roberts because he knew the force used in the arrest was excessive.  Cst. Ushock's response was that he treated Mr. Roberts as another human being.  He wanted to obtain a statement from Mr. Roberts and hear his side about what had occurred.  Given the circumstances and the investigation, taking a statement from Mr. Roberts was entirely appropriate.  It was appropriate for Cst. Ushock to take the statement because he was the initiating and therefore the lead investigator.  The fact that a video was available does not obviate the need for an investigation and warned statement.  At the arrest scene, Cst. Ushock stated that he wanted to try and get a statement from him and document any injury.

[281]     It was put to Cst. Ushock that he requested statements from someone who got side swiped.  He didn't recall that it was him but agreed that if it was in the transcript (of these proceedings) he wouldn't disagree.  It was then put to him that other civilians walked to the scene of the arrest, in particular, two individuals can be seen on the video who appear to come from inside a nearby house.  One of the people, a man, walked right up to the officers while they were in the process of arresting Mr. Roberts.

[282]     It was put to Cst. Ushock that it would be typical for officers to take statements from civilians when they are observed to be "watching an arrest like this in progress."  Cst. Ushock’s evidence was that each situation is dynamic and essentially, policing is not “cookie cutter.”

[283]     It is not unreasonable that they were not interviewed or statements not produced.  The passenger in Mr. Roberts’ vehicle was unable to testify at trial because of a medical condition and it was not suggested by defence counsel that Cst. Ushock or another officer failed to take a statement from him.

[284]     During the ambulance ride to the hospital, Cst. England is heard saying to Cst. Ushock that he doesn’t want a photograph of Mr. Roberts when he is all bloody, but after it is cleaned up.  It was suggested that the reason for this was to provide a more pristine or sanitized impression of Mr. Roberts’ injuries.  It was suggested that this was an attempt to minimize the injury to Mr. Roberts.

[285]     However, the first thing Dr. Hammersley told Mr. Roberts at the hospital is that she was going to clean him up a bit so she could see where he was injured.  The photographs taken by Cst. Ushock at the hospital are taken after Mr. Roberts had been cleaned and blood wiped off.  The photographs, particularly of the dog bite, clearly show the puncture wounds.

[286]     Clearly, it was the attending physician who needed the wounds cleaned so she could accurately assess the injuries.  Photographs of Mr. Roberts were taken at the scene, although; no close up photos were taken of his head or his leg.  However, he was wearing shorts that went to his knees.  The bite wound was to his upper thigh and it would have been improper, in my view, for an officer to try to lift up the pant leg to take a picture at that time.  In fact, the ambulance attendants had to cut off the pants.  Lifting or moving the pants very likely would have caused more pain to Mr. Roberts and could even have caused additional injury.

[287]     The officers actively involved in the arrest all testified that the watch commander, Cpl. Price, was at the scene of the arrest and he was giving instructions to the officers as for example, authorizing the use of the spike belt.  He was well aware of Mr. Roberts’ injuries because he was also at the hospital

[288]     The evidence is that a report was made to the Independent Investigations Office (IIO) that Mr. Roberts had sustained a fractured nose and a dog bite.  The report of injuries was based upon the medical records ordered by Cst. Ushock.  The emergency records from the hospital do not contain a great deal of information, but clearly indicate there was a fracture to his nose.  A CT scan was performed confirming that no brain injury or other serious head trauma was detected.  The dog bite was noted of course, and he was treated appropriately with antibiotics.

[289]     The IIO indicated that if additional information became available to the effect that Mr. Roberts’ injuries became more severe, they should be updated.  Mr. Roberts did not advise the RCMP that he has suffered significant complications as a result of the bite.  He did not make a complaint to the RCMP.  I do not accept that the RCMP had an obligation to order additional medical records to determine the ongoing extent or impact of Mr. Roberts’ injuries.

[290]     To conclude, I disagree with the suggestion that there was a cover up by officers.  They testified as to their observations and their actions on the night in question.  They did not deny that they had to use force to effect Mr. Roberts’ arrest.  There were some inconsistencies in their observations which, is to be expected in a situation that was chaotic, dynamic and unfolding rapidly.  Inconsistencies in the evidence of each of the officers would be expected and suggests that they did not discuss their evidence with each other and reiterate identical versions of events.

[291]     I have reviewed all the case law provided by counsel.

[292]     This is not a case in which officers applied gratuitous force to someone after arrest and who was already under control, compliant or cooperative.  As soon as Mr. Roberts was handcuffed, the officers immediately reduced the level of intervention required up to that point.  The PSD Gator was removed almost immediately.  After Mr. Roberts was placed in the hobble and was under control, he was assured that an ambulance was coming.  He was placed in the recovery position which was for his own safety and officers checked periodically to make sure his condition was not deteriorating.

[293]     Throughout the cross examination, counsel for Mr. Roberts suggested that the officers involved allowed their adrenaline and emotions to overtake their ability to think rationally and conduct an appropriate risk assessment.  I disagree.

[294]     I listened to the audio and visual DVD’s many times.  When the officers were communicating their position as well as what was occurring throughout the intense pursuit, they remained calm and rational.  Cst. Dormuth stopped to ensure that a person, who was driving the truck that Mr. Roberts struck, was uninjured before continuing the pursuit.  Immediately after the arrest, the officers were calm and made the appropriate arrangements for emergency medical care for Mr. Roberts.  Cst. Ushock and Cst. Dormuth were respectful and helpful to Mr. Roberts even though he had endangered many lives, including those of the police officers just hours before.

[295]     I find that the force used during the arrest of Mr. Roberts was not excessive.

[296]     The Crown has established, on a balance of probabilities, that the use of force by the officers involved in the arrest of Mr. Roberts was justified.

[297]     I conclude that Mr. Roberts’ rights under s. 7 of the Charter were not infringed.  His application is dismissed.