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R. v. Eddison, 2019 BCPC 139 (CanLII)

Date:
2019-06-28
File number:
250205-2-C
Citation:
R. v. Eddison, 2019 BCPC 139 (CanLII), <https://canlii.ca/t/j183t>, retrieved on 2024-03-29

Citation:

R. v. Eddison

 

2019 BCPC 139

Date:

20190628

File No:

250205-2-C

Registry:

Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

(Criminal Court)

 

 

 

 

 

REGINA

 

 

v.

 

 

PAUL BENJAMIN EDDISON

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE G. RIDEOUT

 

 

 

 

 

Counsel for the Crown:

G. Proulx, Q.C.; J. Gock

Counsel for the Defendant:

G. Arnet-Zargarian; H. Hundal, Articled Student

Place of Hearing:

Vancouver, B.C.

Dates of Hearing:

January 7, 8, 9, 11, 14; February 27, 28; March 1, 25, 2019

Date of Judgment:

June 28, 2019


A Corrigendum was released by the Court on July 16, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

I. INTRODUCTION

[1]           In the early morning hours of January 15, 2018, in or around the 1100 block of Granville Street, in the City of Vancouver, British Columbia, there was an altercation involving members of the Vancouver Police Department (the “VPD”) and Paul Benjamin Eddison (the “accused”).

[2]           During the course of the altercation, Constable Pamela Karellas sustained an open fracture to her left tibia and fibula that required, and continues to require, ongoing medical intervention.

[3]           It is alleged that the accused was responsible for the injuries sustained by Constable Karellas.

[4]           The accused has been charged with six offences under the Criminal Code of Canada (the “Code”), including:

Count 1: The aggravated assault of Constable Pamela Karellas, contrary to s. 268(2) of the Code;

Count 2: That in committing an assault on Constable Karellas, the accused caused bodily harm to her, contrary to s. 270.01(1)(b) of the Code;

Count 3: That in committing an assault on Constable Karellas, he did wound, maim or disfigure her or endanger her life, contrary to s. 270.02 of the Code;

Count 4: That he did assault Constable Russell Sargent in the execution of his duty, contrary to s. 270(1) of the Code;

Count 5: That he did knowingly utter a threat to Constable Sargent to cause him death or bodily harm, contrary to s. 264.1(1) of the Code; and

Count 6: That he did unlawfully cause bodily harm to Pamela Karellas, contrary to s. 269 of the Code.

II. ISSUES

[5]           The accused has advanced two separate issues.

[6]           First, the accused seeks an order for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”) as a remedy for the following s. 7 and s. 12 breaches: (1) the VPD failure to secure in a timely manner the CCTV video footage of the altercation from the Hostelling International Vancouver hostel (the “hostel”); and, (2) the VPD’s excessive use of force in detaining the accused, compounded by deceptive conduct.

[7]           Second, the accused says that in any event, with respect to the evidence led at this trial, there is little, if any, credible and reliable evidence that would logically establish beyond a reasonable doubt that the accused is guilty of any of the charges.

III. ADDRESSING THE ISSUES

[8]           It was agreed by the Crown and the accused that a voir dire was not required for the Charter challenge. Similarly, both agreed that the issues raised by the accused could be addressed in separate rulings within the judgment at the conclusion of the evidence and following submissions.

[9]           I will review the evidence leading up to and following the altercation between the accused and members of the VPD before proceeding to an analysis of the issues raised by the accused.

IV. BACKGROUND

(i)            Police Evidence

Constable Russell Sargent

[10]        Constable Russell Sargent testified in direct examination that on January 15, 2018, he was on duty and working the night shift in the entertainment area of Granville Street in Vancouver. Constable Sargent was partnered with Constable Pamela Karellas. Both officers were wearing standard VPD uniforms that would identify the officers as VPD members.

[11]        He testified that Constable Karellas was the driver of their unmarked police car. Constable Sargent was the passenger.

[12]        At approximately 1:35 am, they had parked the police car on the west side of the 1000 block of Granville Street, engaging its red and blue flashing lights. They both exited the police car to speak with an individual who they believed was a property crime offender.

[13]        He testified that they both spoke with this individual for approximately five minutes before they returned to their police car. The individual was not arrested.

[14]        When they were back in their police car, he observed a male, later identified as the accused, sitting on a bench approximately 10 to 15 feet to the southwest on Granville Street. The accused appeared to be staring at Constable Karellas; as well, he appeared to be mouthing words, and was gesturing with his hands.

[15]        After a brief period of time, the accused stood up and began to walk with a “pretty unsteady gait” toward the police car. Constable Sargent felt somewhat uncomfortable, so rolled up his passenger window, leaving a few inches open at the top.

[16]        It was his opinion that the accused was “probably under the influence of alcohol.”

[17]        When the accused got to the window of the police car, he leaned over and was almost face-to-face with him. He said words to the effect of, “You’re really going to make me walk all the way over here.”

[18]        In response, Constable Sargent said, “What?” The accused again stated words to the effect of, “You really made me walk all the way over here for this?”

[19]        Constable Sargent told the accused that he did not know what he was talking about, at which point the accused asked him for a cigarette. He told the accused that he did not have a cigarette, and asked him to go away.

[20]        At this point, Constable Karellas moved the police car approximately 10 feet or so to the south of the accused. The accused followed them, and again, while leaning down to talk to Constable Sargent, said words to the effect of, “Give me the fucking cigarette.”

[21]        Constable Sargent told the accused he did not have a cigarette, and, after a further exchange of words, the accused said, “Give me the fucking cigarette or else I’ll fucking kill you.”

[22]        At this point, Constable Sargent believed that the accused was arrestable for uttering threats. He turned quickly in the passenger seat, and, in a loud voice, asked, “What?”

[23]        He testified that the accused began to back away from the window, at which time he opened the door of the police car. He said the accused was “… back pedalling away from me with his hands up in front of his body. I cannot recall if his hands were open or closed, but I perceived it as, like, what I would see as a fighting stance as he backed away from me”: Transcript, January 18, 2019, p. 50, ll. 17-21.

[24]        Constable Sargent got out of the police car and observed the accused backing away from him and stating, “Watch out, or I will fuck you up.” Constable Sargent told the accused that he was under arrest. In response, the accused replied, “No. I’m fucking not.”

[25]        Constable Sargent determined that the accused was being noncompliant with his direction, and would need to be physically taken into custody. He considered various options for the application of force, including deploying his firearm, using his Taser, using his pepper spray and using his baton, but ruled them out as being disproportionate in the circumstances.

[26]        It was his opinion the accused was “goal-oriented”, meaning that the accused was not going to comply with his direction. Additionally, as the accused appeared to be under the influence of alcohol, presented as agitated, and positioned himself in a fighting stance, he elected to use “physical empty-handed control tactics”: Ibid. at ll. 1 – 33.

[27]        Constable Sargent advanced approximately six feet and grabbed the upper clothing of the accused with his right hand. With his left hand, he took control of the accused’s right arm. It was his intention to execute a leg sweep to take the accused to the ground, but without allowing the accused’s head to hit the concrete.

[28]        The accused responded by grabbing the front of Constable Sargent’s jacket, which also caused Constable Sargent’s radio microphone to be pulled down.

[29]        The accused pushed Constable Sargent two to three steps backward towards the police car. Constable Sargent could not say whether or not his body actually came into contact with the side of the police car.

[30]        Constable Sargent managed to regain some measure of control of the accused and executed a leg sweep, which caused the accused to go to the ground on his back. He testified that he exercised care in retaining control of the accused’s arm in the front of his shirt to avoid any injuries to the accused when he was taken to the concrete.

[31]        He estimated it took approximately 10 seconds from the time he grabbed the upper clothing of the accused’s jacket until he was able to take him to the ground.

[32]        He testified that the accused’s head was facing towards the west with his feet positioned to the east. His body was perpendicular to Granville Street. Constable Sargent was positioned above the accused in what he described were “fairly close quarters.”

[33]        Constable Sargent then heard a loud bang, followed by a scream from Constable Karellas. He looked over his right shoulder and saw Constable Karellas lying four to five feet away on the ground, holding her leg.

[34]        He noted that Constable Karellas’ police radio appeared to be broken and was lying several feet away from her. He observed that Constable Karellas’s leg was “at a completely unnatural angle, and she screamed that her leg was broken”: Ibid. at p. 55, ll. 1 – 15.

[35]        Constable Sargent continued to struggle with the accused. He described that the accused’s entire body was “thrashing” underneath him, and that the accused had pulled down the cord connected to Constable Sargent’s radio.

[36]        He could not recall how it happened, but he was able to regain physical control of his radio microphone, which he used to request urgent police assistance for himself and Constable Karellas.

[37]        The accused continued to struggle. Constable Sargent was quickly losing control of the accused.

[38]        A civilian (Kieran Foran) became involved in the incident. Constable Sargent recalled that he looked up and saw Mr. Foran. Mr. Foran asked if he could help. Constable Sargent said, “Yes please.” Mr. Foran “dove in” and started to control the legs of the accused.

[39]        Constable Sargent continued to struggle with the accused, who remained resistant. He had control of the accused’s right arm, but he did not have control of the accused’s left arm. He said that the accused’s body was continuing to “thrash and resist.”

[40]        As the accused continued to resist, other police officers arrived on the scene and assisted in trying to get the accused under control. By now, the accused was on his stomach with both his arms underneath his stomach.

[41]        Constable Sargent was giving loud verbal commands, “Get your hands out from underneath. Give me your hands. Get your hands out from underneath.” At the same time, Constable Sargent was trying to pull the accused’s arms out from underneath him. The accused continued to resist.

[42]        At this point, Constable Sargent delivered two knee strikes to the accused’s torso. The intention of the knee strikes was to cause pain but to also promote compliance. The accused reacted by releasing his arms, and handcuffs were applied.

[43]        After the accused was handcuffed, other police officers took the accused into their custody, leaving Constable Sargent able to attend to Constable Karellas.

[44]        He testified that Constable Karellas was in extreme pain. He rode in an ambulance with her to the Vancouver General Hospital (“VGH”).

[45]        When he was at the VGH, he became “pretty emotional” and felt responsible for not taking better care of his partner. He recalled that Constable Karellas told him, “It’s not your fault. It’s his - - it’s his fault for kicking me”: Ibid. at p. 100, ll. 36 – 44.

[46]        He felt that he had made the wrong decision in utilizing such a low level of force to restrain the accused, and had he used a more robust level of force, there may have been a better outcome for his partner.

[47]        He confirmed that he commenced the preparation of his police report respecting the altercation almost immediately after Constable Karellas told him about her leg being kicked by the accused.

[48]        He used his laptop to prepare his police report. The police report was approximately three pages in length. He entered his police report into the Police Records Information Management Environment (“PRIME”) at 3:56 AM.

[49]        Constable Sargent recalled that he gave an oral summary of what had taken place to Constable Colenutt, the lead police investigator, prior to preparing his police report.

[50]        Constable Sargent was extensively cross-examined. The impact of his cross-examination on his credibility and reliability will be addressed in the analysis of the evidence.

Constable Pamela Karellas

[51]        Constable Karellas testified in direct examination that she joined the VPD in 2014. On January 15, 2018, she was working in the Patrol Division in the downtown core of Vancouver. Her partner was Constable Sargent. In January 2018, she weighed approximately 110 pounds and was 5’ 1” in height.

[52]        She commenced her shift with her partner at 6:45 PM on January 14. They were assigned to the entertainment district along Granville Street in Vancouver. She was driving a marked police car and her partner was in the front passenger seat.

[53]        In the vicinity of the 1000 block of Granville Street their attention was drawn to a known property offender. They exited the police car, and Constable Sargent spoke to this individual while she acted as the cover officer to make sure there were no threats or dangers. They cleared the scene after approximately five minutes, without any arrest.

[54]        They returned to the police car. It was approximately 1:30 – 2:00 AM on Sunday morning. It was around this timeframe that patrons were leaving various bars and clubs. They decided to establish a “high visibility presence” in the area and intercede proactively between intoxicated individuals to prevent violence.

[55]        While positioned in the police car, Constable Karellas noted an individual, later identified as the accused, sitting on a bench located several metres to the southwest of the front of the parked police car. He appeared to be staring at her and was “mouthing” some words at her. She was unable to hear what he was saying.

[56]        She testified that she looked over to Constable Sargent after a few seconds and said, “What’s that guy saying? I don’t know what he is saying.” Constable Sargent said, “I don’t know. I can’t tell. I can’t hear.”

[57]        Immediately following that exchange, the accused got up and walked in a staggering gait over to the police car. It was her opinion that the accused was intoxicated.

[58]        Constable Sargent rolled up the window at the passenger side, leaving a few inches open at the top. When the accused got to the passenger side of the police car, he leaned over toward Constable Sargent asked him several times if he could have a cigarette. Constable Sargent replied that he did not have a cigarette, and told him to go away.

[59]        Constable Karellas also participated in the conversation, as the accused did not seem to be “getting the message”. She told the accused to “… get in a cab and go home.”

[60]        The accused did not respond to this suggestion, but remained standing by the side of the police car. Constable Karellas moved the police car forward a few metres to let the accused know that she was not interested in interacting any longer with him.

[61]        Once she stopped the police car, she observed the accused in her rear view mirror turn and start walking at a faster pace toward the police car. The accused again walked to the passenger side, put his hands on top of the police car, and leaned towards Constable Sargent. He again demanded a couple of times that Constable Sargent give him a cigarette. He then said directly to Constable Sargent, “I’ll fucking kill you if you don’t give me a cigarette.”

[62]        In response, she said words to the effect of, “That’s it.” Constable Sargent said words to the effect of, “Let’s arrest him.”

[63]        Constable Sargent opened the passenger door and exited the police car. She heard Constable Sargent say to the accused, “You’re under arrest.” To the best of her recollection, she heard the accused say, “No, I’m fucking not. I’m fucking not under arrest.”

[64]        As Constable Sargent was exiting the police car, she observed the accused walking backwards with his hands in an up position. She observed Constable Sargent advancing towards the accused. At this point, she exited the police car to provide assistance to Constable Sargent.

[65]        She walked around the rear of the police car and observed the accused holding onto the front of Constable Sargent’s clothing and pushing Constable Sargent backward towards the police car. At the same time, she heard the accused yelling and making growling noises at Constable Sargent.

[66]        She positioned herself to the right of the accused. Constable Sargent managed to take the accused to the ground and to position himself over top of the accused, who was on his back.

[67]        She testified that the accused was “flailing around on the ground” and kicking with both of his feet. One of the kicks landed on her left leg, which caused the fracture. The whole incident from the time the accused was taken to the ground until she was kicked took no more than a couple of seconds.

[68]        She testified that at no time did she come into contact with the front passenger door of the police car. She denied that the accused fell on top of her.

[69]        She was not immediately aware of the seriousness of her injury until she took a step backwards, and fell. It was at that point that she could feel the bone protruding from her shin. She described the pain from the fracture as the “most amount of pain” that she had ever endured.

[70]        She recalled that her upper body was positioned to the south and that her feet were to the north. She observed that Constable Sargent was still struggling with the accused.

[71]        She testified that a civilian Mr. Foran came up to her and asked if he could help. She told him, “Go help my partner get the man under control.” She saw Mr. Foran grab the legs or feet of the accused while Constable Sargent continued to try to control the accused from above his body.

[72]        She was unable to use her radio to call for cover from other police officers, as the radio connections had broken off. She yelled at Constable Sargent to “… call for cover, while my leg was broken. And I heard him, after several seconds, calling for cover”: Transcript, January 9, 2019, p. 84, ll. 26-32.

[73]        Within moments after Constable Sargent had called for cover, Constable Karellas observed other police cars arriving on the scene, and saw at least five police officers who went to assist Constable Sargent. She observed that the accused continued to fight with all of the officers who were attempting to take him into custody.

[74]        She testified that several police officers came to her assistance, including Constable Genevieve Dureau. Constable Dureau had previously been trained as a medic in the Canadian Armed Forces.

[75]        She told Constable Dureau, “He - - he kicked it. He just kicked it”: Ibid. p. 86, ll. 25-27.

[76]        At one point Constable Sargent came over to assist her. She told Constable Sargent words to the effect that the situation was, “… messed up. Like how did this happen? He just kicked me and my leg is in like two pieces, basically … My leg broke in half, basically, and I was just shocked that he had kicked me. I kept repeating that to Constable Sargent”: Ibid. ll. 23-32.

[77]        When the paramedics arrived on the scene, they administered what she believed to be some “laughing gas.” The laughing gas caused her to feel “… a little loopy… Like temporarily just dazed”: Ibid. ll. 2-7.

[78]        Constable Karellas could not recall whether or not she gave any detailed history to the paramedics. Once she was at the hospital, she recalled giving detailed history to hospital staff.

[79]        She recalled that at some point her entire squad of ten members was at the hospital with her. She was asked by her squad members what had happened, and she told them, “We were trying to arrest an intoxicated male that was uttering threats to my partner, and he became belligerent, and during the takedown and while we were trying to arrest him, he had kicked my leg, which caused the break”: Ibid. p. 89, ll. 28-32.

[80]        She was asked to explain entries in four patient care reports [Ex. 14, 14a, 15 and 16] in which there were notations in the admission history that the accused either jumped on her as she was pursuing him, or that the accused fell on her leg after she got out of the police car.

[81]        She could not recall giving those statements. She testified that the accused did not jump or fall on her and, therefore, she would not have given that medical history.

[82]        Constable Karellas was extensively cross-examined. The impact of the cross-examination on her credibility and reliability will be addressed in the analysis of the evidence.

Constable Genevieve Dureau

[83]        Constable Genevieve Dureau testified in direct examination that she served 12 years as a medical technician in the Canadian Armed Forces. After leaving the military, she joined the VPD, and was on duty on January 15, 2018, with the District One Team. She was partnered that evening with Constable Peter Colenutt.

[84]        They received a radio broadcast requesting cover for Constable Sargent and Constable Karellas at approximately 1:47 AM. They proceeded immediately to the area of the altercation involving the accused.

[85]        She described the scene upon arrival as chaotic. She observed a couple of police officers trying to take the accused into custody. She observed Constable Karellas lying on her right side a few feet away from the altercation. Constable Karellas appeared to be in a lot of pain.

[86]        She observed that the left leg bone was protruding from the skin in the area of the shin. There was some bleeding from the wound, but the bleeding was not excessive. She did not have any recollection of Constable Karellas telling her at the roadside how her leg became broken.

[87]        She recalled that Constable Sargent came over and told Constable Karellas words to the effect of “… it’s okay; we’re going to take care of you ...” Constable Dureau testified that EHS personnel arrived after approximately 15 to 20 minutes.

[88]        She recalled telling the EHS personnel that Constable Karellas had a compound fracture of the left lower leg. She confirmed that Constable Karellas had an elevated pulse. She denied that she gave any details to the EHS personnel as to how Constable Karellas sustained the injury.

[89]        She recalled that the EHS personnel administered Entonex gas to Constable Karellas to reduce the pain. This gas is also known as laughing gas, and can result in an individual experiencing giddiness.

[90]        She testified that Constable Karellas was placed in the ambulance and, in the company of Constable Sargent, went to the VGH. Constable Dureau and Constable Colenutt followed the ambulance in their police car.

[91]        At the hospital, Constable Dureau observed various medical personnel performing an assessment of the injuries. She observed Constable Karellas receiving medication.

[92]        Constable Dureau did not provide any medical history to any medical personnel at the hospital concerning the injury to Constable Karellas.

[93]        In cross-examination, Constable Dureau agreed with the suggestion that it would be helpful, as a medical technician dealing with an injured individual in an emergency situation, to make inquiries of that individual, if possible, as to what happened and what injuries had been sustained.

[94]        In the following exchange, she was asked to explain why she did not follow that practice when she was at the roadside with Constable Karellas:

Q         And is there any reason you didn't do that that night?

A         I -- being brand new on the road I was still in training. It was my second block out of the academy. It is -- as you can imagine, it was super stressful to show up and have your co-worker on the ground holding their leg. I knew something had taken place. I didn't feel like at that time what caused the injury was a priority. The priority to me was ensuring that she was okay and that I made her feel as comfortable as I could in that time, Your Honour.

(Transcript, January 14, 2019, p. 20, ll. 35-46)

[95]        Constable Dureau was unable to recall whether or not Constable Karellas told anyone at the roadside what had happened, including EHS personnel. She did consider it “likely” that the EHS personnel would make some inquiries of Constable Karellas when they were travelling to VGH.

[96]        She was unable to recall if any of the medical personnel at the VGH asked Constable Karellas, in her presence, what had happened or what injuries she had sustained. She denied telling any of the medical personnel at the hospital what happened or what injuries Constable Karellas sustained

Constable Peter Colenutt

[97]        Constable Colenutt testified in direct examination that he was in full uniform and was partnered with Constable Dureau in the early morning hours of January 15, 2018, when they received the radio request for cover to assist Constable Sargent.

[98]        He recognized Constable Sargent’s voice on the radio request for assistance and recalled that Constable Sargent said something to the effect that his partner’s leg was broken.

[99]        They proceeded directly to the 1000 block of Granville Street. He testified that Constable Dureau went immediately to Constable Karellas, who appeared to be in significant pain.

[100]     He described the scene of the altercation as a “flurry of activity”. The accused was resisting being taken into custody. He saw four police officers attempting to restrain the accused on the ground. He observed Mr. Foran securing the legs of the accused.

[101]     He went over to the altercation. Mr. Foran looked up and said, “... can you take his legs?” Constable Colenutt then took control of the legs of the accused, and called out for a hobble.

[102]     He recalled that Constable Sargent and Constable Domingo were two of the police officers trying to take the accused into custody. He did not see the interaction of those police officers with the accused, as he was focused on the legs.

[103]     Once the accused was handcuffed and hobbled, he was carried to and then placed in the back of the police wagon. He testified that care must be exercised when physically picking up an individual who is in custody in restraints. It is the police officer’s responsibility to get that individual safely from one point to another point.

[104]     He testified that the accused was constantly moving when he was being carried to the police wagon. He had to carry the accused sideways to avoid being kicked by his feet.

[105]     He denied causing any injuries to the accused. He did not see any other police officer causing any injury to the accused during this period of time.

[106]     He testified he only saw injuries to the face of the accused when the accused was being loaded into the back of the police wagon.

[107]     After the accused was placed in the police wagon, he went back to the scene of the original altercation with the accused and spoke to Constable Sargent.

[108]     Constable Sargent told him that they had been parked; that the accused had approached him and uttered some threats; that he tried to arrest the accused but the accused resisted, so he had to physically take the accused to the ground; that Constable Karellas screamed out that her leg was broken; and, finally, that he used his radio to request cover.

[109]     Constable Colenutt either took the initiative, or was assigned the task as lead investigator by Sergeant MacKenzie. Based on the information he had at that point, he instructed Constable Pavlic to arrest the accused for assault causing bodily harm to a police officer.

[110]     He did not turn his mind to other potential charges at that time. He described the situation as not a “typical call.” A fellow police officer had been catastrophically injured. As more facts became known, he was aware that additional charges would likely be laid.

[111]     He and Constable Dureau followed the ambulance that took Constable Karellas to the VGH. While they were at the hospital, Constable Dureau was directed to bring Constable Colenutt’s laptop to the emergency room. Other Team 1 members were also present, including Constable Sargent. At some point Constable Colenutt directed Constable Sargent to write his police statement using his laptop.

[112]     He reviewed Constable Sargent’s police statement, and then prepared his nine-page police statement. At 4:35 AM, he telephoned Constable Pavlic and directed him to also arrest and Charter the accused for uttering threats to Constable Sargent and for the assault of Constable Sargent.

[113]     Constable Colenutt testified in cross-examination that he did not make notes in the traditional sense in a notebook at the scene of the altercation. He explained his reasoning in the following exchange:

Q         And do you have any explanation why you were not taking notes?

A         Yeah, at the scene no notes taken because of the dynamic nature and I guess feeling that I need to have my head up and not down in my notebook. Times -- I'm relying on the fact that when you enter that you're changing your location the CAD is going to -- the CAD report is going to capture those times. And then once at the hospital I've now got access to my laptop and I can start transcribing my investigation directly into the program that captures our reports.

(Transcript, January 11, 2019, p. 64, ll. 1-12)

[114]     He agreed that making handwritten notes in the traditional sense can be an important police duty. However, in this case he entered multiple pages of information into the police narrative file, which he described as being “more efficient” than making a paper copy and then transcribing it into an electronic copy. He denied the suggestion of the accused that he made a deliberate decision not to make any handwritten notes of this investigation.

[115]     He testified that initially he received information from Constable Sargent that would establish grounds to arrest the accused for assault of a police officer and uttering threats to a police officer. He said that, from his standpoint, the more important task at hand was dealing with the circumstances surrounding the assault of Constable Karellas.

[116]     It was suggested that he “sort of inferred” from the surrounding circumstances that there must have been an assault of Constable Karellas. In response Constable he testified, “… I put everything together and had reasonable grounds to believe that his actions had caused her injuries”: Ibid. at p. 103, ll. 6-10.

[117]     He disagreed with the suggestion that he did not direct Constable Pavlic to arrest the accused for uttering threats to Constable Sargent at the scene of the altercation because there was no information concerning any threats being made by the accused to Constable Sargent.

[118]     It was Constable Sargent who told him at the scene of the altercation that Constable Karellas had been injured by the accused.

[119]     He denied the suggestion that based upon information initially received from Constable Sargent that there were no reasonable grounds to initiate a primary arrest of the accused, and therefore Constable Sargent should change his evidence to establish reasonable grounds.

[120]     In the following exchange, Constable Colenutt was asked by the court whether or not there was any cover-up or fabrication of evidence in this case:

Q         For you to participate in any -- you've described it in a cover-up or a fabrication of evidence by other -- adding more evidence or removing evidence, in your experience would that be a serious allegation?

A         Absolutely.

Q         Would that be something that -- in your mind, is something that happened in this particular case?

A         Not whatsoever.

Q         Did you see anything that might cause your personal concern as the lead investigator?

A         No.

(Ibid. p. 119, ll. 19-30)

Constable Natalie Eades

[121]     Constable Natalie Eades testified in direct examination that on January 15, 2018, she was on duty and partnered with Constable Blair De Costa.

[122]     She testified that at approximately 1:47 AM, they received a dispatch that Constable Sargent urgently required cover at the 1000 block of the Granville Street. There was also a request over the police radio for a “hobble.”

[123]     Within approximately two minutes, they arrived at the scene of the altercation.

[124]     She observed Constable Karellas lying on her back on the ground and being cared for by several police officers, including Constable Dureau.

[125]     Approximately 10 feet away from where Constable Karellas was located, there was a group of police officers surrounding an individual, who was on the ground.

[126]     She went over to Constable Karellas to provide some comfort to her. She described Constable Karellas being in a lot of pain, breathing heavily, clenching her teeth and occasionally letting out a yell or a scream. There was a small amount of blood coming from the wound.

[127]     She had no contact with the accused and was unable to say whether or not the accused sustained any injuries.

[128]     After the scene was cleared, she was tasked by Sergeant MacKenzie to perform a video (“CCTV”) canvass of the 1000 block of Granville Street. She canvassed various businesses and/or establishments on both the east and west sides of the 1000 block of Granville Street. She made contemporaneous notes as she performed the canvass.

[129]     The hostel located at 1025 Granville Street was open. She went inside and spoke to a male staff member. This individual identified two CCTV cameras located outside the hostel, “… one pointing sort of south and one pointing sort of north directly in front of their hostel.”

[130]     She had the staff member rewind the CCTV to the approximate time of the incident. She viewed all of the captured CCTV. The north-facing camera provided an opaque reflection of blue and red lights reflecting off buildings. Constable Eades also noted a white glare from the lights on the awning of the hostel.

[131]     She identified an image taken from the hostel’s north-facing CCTV camera [Ex. 11] that depicted a white glare that essentially “washed out” any detail specific to the incident involving the accused and the police.

[132]     She only viewed the two external CCTV cameras at the hostel, and not any internal CCTV cameras, as she could tell that the internal cameras only displayed the interior of the hostel and not the exterior.

[133]     In cross-examination, she denied telling the staff member at the hostel what had happened. She recalled telling him, “I’m looking for a video of what happened outside”, but she did not remember how much detail she went into about what actually happened. She asked the staff member if he saw anything and he said “no”: Transcript, January 8, 2019, p. 87, ll. 28-46.

[134]     She testified that she viewed the CCTV footage starting from approximately 20 minutes before the incident involving the accused and the police, and observed nothing of value. It was her opinion that there was no evidence of value, so she did not seize the CCTV footage.

[135]     She agreed, in hindsight, that it might have been beneficial to have seized a copy of the CCTV footage to show that it really did not capture anything of evidentiary value. However, as she did not view anything that she considered “relevant”, she elected not to seize the CCTV footage.

[136]     When it was suggested to her that she was not in a good position to determine what was, or was not, relevant, she responded as follows:

A         It's kind of a funny situation because you're -- if we were to seize every single video in the block that shows nothing, that doesn't capture the incident, then I would be seizing the video from multiple businesses of absolutely nothing. And that's what this was to me was a video of nothing, a video that did not show what I needed it to show, which was where the incident happened. And, so therefore, I didn't take a copy of it.

Q         It could have showed perhaps them carrying the suspect, police carrying the suspect?

A         No, I don't believe it did because I watched it afterwards, as well, and like I said, all I could see was a couple of police officers standing around holding the scene.

Q         You'd agree --

A         It didn't show them carrying him.

(Transcript, January 8, 2019, p. 91, ll. 3-19)

[137]     In response to the suggestion that the VPD had the technology to enhance the quality of CCTV footage, she could only “guess” that this technology could possibly help to enhance the CCTV footage she viewed at the hostel.

Constable Blair De Costa

[138]     Constable De Costa testified in direct examination that he was partnered with Constable Eades in the early morning hours of January 15, 2018, when they received the radio request for cover to assist Constable Sargent.

[139]     When they arrived on the scene, he observed a cluster of police officers trying to take the accused into custody. It was his opinion that the police officers were not having an “easy time” in doing this.

[140]     Other than handing over a hobble to another police officer, Constable De Costa had no direct dealings with the accused.

[141]     Constable De Costa took a statement from Mr. Foran in the hostel. He described Mr. Foran as “excited” and cooperative. He could not comment on Mr. Foran’s state of sobriety.

Constable Jose Domingo

[142]     Constable Domingo testified in direct examination that he was partnered with Constable Devin Golchin in the early morning hours of January 15, 2018, when they received the radio request for cover to assist Constable Sargent.

[143]     When they arrived at the 1000 block of Granville Street, he observed Constable Sargent and Sergeant MacKenzie struggling with the accused.

[144]     He went immediately to the scene of the altercation and directed the accused to place his right arm behind his back. The accused did not comply, so he proceeded to deliver five punches to the area of the accused’s shoulder. The accused still did not comply.

[145]     It was his impression that the accused was trying to turn over, so he then delivered approximately three closed fist punches to the accused’s right facial area. He testified that he used “medium force” in delivering the three punches in quick succession.

[146]     After approximately 20 to 30 seconds, the accused was “effectively” taken into custody. The accused’s arms were handcuffed behind his back and a hobble was used to secure his feet.

[147]     After the accused was taken into custody, Constable Domingo became aware that he had sustained an injury to his right ring finger and his right little finger. He subsequently received medical treatment, which included the application of a hard cast on his right hand.

[148]     Constable Domingo viewed various photographs of the accused taken at St. Paul’s Hospital. He was unable to say what caused the injuries to the facial area of the accused depicted in those photographs.

[149]     In cross-examination, Constable Domingo testified that he was approximately 190 to 195 pounds at the time of the altercation with the accused.

[150]     He testified further that when he first came into contact with the accused, he placed his right knee on the accused’s right trapezoid while giving directions to the accused to comply with police officer commands.

[151]     At one point he briefly left the scene of the altercation to check on the condition of Constable Karellas, before returning to the altercation with the accused. He did not consider that action to be inappropriate, as there were three other police officers physically taking control of the accused.

[152]     He agreed that when he returned to the altercation, the accused was trying to lift his right shoulder off the ground. He disagreed with the suggestion that it was possible that the accused was trying to comply with his command to place his right arm behind his back.

[153]     He disagreed that he punched the accused in the back shoulder area at least ten times. He felt it was approximately five times. He described the punches as a “closed quarter” punches, rather than having his arm “cocked all the way back.”

[154]     The punches to the back shoulder area were all immediate strikes delivered in quick succession. He said the purpose of the punches was to stun the accused so that he could then take control of the right arm of the accused.

[155]     In his opinion the accused was resisting arrest and was failing to show his right arm. Constable Domingo perceived that, “… as a threat as - - because it’s unknown. I’m not sure what he has on that arm”: Transcript, January 14, 2019, p. 56, ll. 13-23.

[156]     He agreed that he never saw the accused trying to hit, kick or threaten any police officers. He disagreed with the suggestion that the accused was not fighting. He testified that the accused was resisting arrest which, in his opinion, is consistent with fighting.

[157]     He recalled that he punched the accused in the face with his left hand and not his right hand, because his right hand was injured.

[158]     He agreed that punching a person in the face can be risky as the punches could cause serious injuries. He denied the suggestion that he was punching the accused in the face to knock him out cold. The punches were designed to gain compliance.

[159]     He agreed that in his police report he described the accused as “actively fighting.” He agreed with the suggestion of the accused that he was not, in fact, “actively fighting.”

[160]     He testified that he used the words “actively fighting” to justify the punches to the face of the accused. He denied that it was inappropriate to punch an individual in the face multiple times when they are face down on the ground if that individual is perceived to be a threat.

Constable Devin Golchin

[161]     Constable Golchin testified in direct examination that he was partnered with Constable Domingo on January 15, 2018, when they received the radio request for cover to assist Constable Sargent.

[162]     When they arrived at the scene of the altercation, Constable Golchin observed that the accused was face down on his stomach and that there were several police officers trying to take the accused into custody. The accused appeared to be fighting with the police officers.

[163]     He saw Constable Karellas on the sidewalk very close to Granville and near the front passenger door of a police car screaming and holding her leg.

[164]     He did not know what had happened, but it was clear to him that his fellow police officers needed assistance to take the accused into custody. He observed that the accused was resisting efforts to get his right arm from underneath him.

[165]     In an effort to gain compliance, he delivered three to six hard knee strikes to the left mid-section of the accused’s torso. The knee strikes were successful in gaining control of the accused, in particular, gaining control of his hands.

[166]     He agreed that it was possible that the face of the accused had rubbed up against the concrete, as he was face down and flat on the ground during the altercation up until the point when he was handcuffed and hobbled.

[167]     He did not see any police officers striking the accused after he was handcuffed and hobbled.

[168]     He observed that Constable Domingo had an injury to his little finger. He drove Constable Domingo to the VGH, where he received medical treatment.

[169]     In cross-examination, he could not recall details of what other police officers were doing at the scene of the altercation or where they were positioned at the time of the altercation with the accused. He explained that the “situation was extremely dynamic” when he arrived on the scene, and it was not the type of situation where he would have had the opportunity to ask questions.

[170]     In the following exchange, he explained the rationale for and the timing of the knee strikes:

Q         And so is it fair to say that from the time that you arrived in proximity your -- your immediate thought is to try to apply the knee strikes to get his arm out. Is that fair to say?

A         I made the assessment before I applied the knee strikes, Your Honour. When I walked up -- again, I made a couple of observations. There was an injured officer. There was a male who had other officers trying to take him into custody. I didn't have any other information other than that. Someone called for help. I saw another officer trying to gain control of that arm unsuccessfully and I applied the knee strikes in an attempt to gain control of that arm.

(Transcript, January 14, 2019, p. 96, ll. 9-22)

[171]     He disagreed that when the accused was lying face down on the ground with his right arm under his body, that he did not pose any threat. While the accused was in a “disadvantaged position for sure”, the accused was a large man and in his policing experience, he has observed individuals to be “active threats” when they are on the ground with an arm concealed under their body.

[172]     He had received training in the application of knee strikes as a use of force. One of the specific instructions in using knee strikes is to avoid vulnerable areas like an individual’s head or groin.

[173]     He recalled that the accused was lifted off the ground rather than being dragged to the police wagon. At no time was the accused dropped on the ground.

Constable Rob Pavlic

[174]     Constable Pavlic testified in direct examination that he was on duty and working in full uniform in a solo capacity in the early morning hours of January 15, 2018, when he received the radio request for cover to assist Constable Sargent.

[175]     When he arrived on the scene of the call, there were several police cars that were present. After exiting his police car, he noticed that there were three to five police officers “subduing” the accused.

[176]     He described the accused “contorting his body.” He said that the accused was “actively resisting” at the time handcuffs were applied. The accused was also moving his legs and arms about. A hobble was utilized to secure the legs of the accused.

[177]     He assisted other police members in carrying the accused to the police wagon. He described the accused as “not an easy carry”, as he was contorting his body.

[178]     After the accused was placed in the police wagon, he was advised at 1:56 AM by Constable Colenutt, the lead investigator that he was to be arrested for aggravated assault of a police officer. He arrested the accused for aggravated assault at 1:57 AM.

[179]     He then advised the accused of his Charter Rights pursuant to s. 10 of the Charter. The accused was verbally responsive to those Rights.

[180]     He believed that the accused was intoxicated. He observed the following indicia: “He had glossy eyes, he spoke with a slurred speech, and he had a strong odour of liquor coming from his breath”: Transcript, January 7, 2019, p. 72, ll. 8-13.

[181]     On cross-examination, he stated that in his initial notes he described the accused as “very intoxicated.” Some of the indicia of impairment that he noted included occasional mumbling and inaudible banter. On a scale of impairment of one to ten, the accused was in the “ballpark” of a six to seven.

[182]     He also observed that the accused had an approximately two-inch laceration over his left eye, a half-inch laceration to his left cheek, a half-inch laceration to the bridge of his nose, and abrasions on both cheeks.

[183]     He testified that the accused was examined by a paramedic. The paramedic advised him that the accused had a laceration that required stitches. It was then decided to transport the accused to St. Paul’s Hospital in the police wagon.

[184]     When the accused arrived at St. Paul’s Hospital, he was transferred onto a trauma bed. Security personnel at the hospital applied restraints to the arms and legs of the accused based upon information received that the accused was combative.

[185]     He testified that the accused was uncooperative with hospital staff. One of the doctors on duty ordered that the accused have a CT scan. The CT scan results were not satisfactory as the accused would not stay still. When one of the doctors attempted to suture a laceration above the accused’s left eye, he would not stay still. Security personnel were required to physically keep his head in place while sutures were applied.

[186]     At 4:35 AM, he received information from Constable Colenutt that the accused was to be rearrested for one count of aggravated assault of a police officer, one count of assault of a police officer, and one count of uttering threats. The accused was arrested for those offences and advised of his s.10 Charter Rights. The accused was verbally responsive to those rights.

[187]     The accused was then transported to the VPD Jail.

Sergeant Rob MacKenzie

[188]     Sergeant MacKenzie testified in direct examination that he was the patrol supervisor on duty on January 15, 2018, for District 1, Team 10, when he received the Code 3 radio request for cover to assist Constable Sargent.

[189]     He responded immediately to the request for cover assistance. When he arrived in the 1000 block of Granville Street, he observed Constable Sargent struggling with the accused. The accused was face down on the sidewalk. He also observed a civilian (Mr. Foran) assisting Constable Sargent.

[190]     He observed Constable Karellas lying on the sidewalk and holding her shin with both hands. At that time, he was not aware of the extent of her injuries. He described Constable Karellas as grimacing in pain.

[191]     He swapped out Mr. Foran and took hold of the accused’s right leg for a very brief period of time, but released it when he heard Constable Domingo say from behind him, “We’ve got it.” That was his only physical contact with the accused.

[192]     He agreed in cross-examination that after he released the leg of the accused, it was his opinion there was no further need for other police officers on the scene to apply violent force to the accused. However, he could not speak to how much force was applied by other police officers, as he was focused on Constable Karellas and not on the struggle between the other police officers and the accused.

[193]     He agreed after listening to a recording of Constable Sargent’s request for cover assistance, that Constable Sargent requested cover assistance because Constable Karellas’ leg was “injured.” There was no mention of any assault taking place in that recording.

[194]     He agreed that at some point at the scene of the altercation with the accused, he received information from somebody that Constable Karellas had been injured after being kicked in the leg. He could not recall who gave him that information.

[195]     He agreed that he directed a video canvass of the businesses in the area.

[196]     He had only a vague recollection of attending at both St. Paul’s Hospital and the VGH. He recalled at the VGH there were other Team 10 members present, but there were no discussions concerning what each member had done at the scene of the altercation with the accused. The focus was more on Constable Karellas and her injuries.

[197]     He agreed that if a suspect has been injured and requires hospital treatment, it is preferable that an ambulance be used rather than a police wagon. He testified that while it is not ideal, in certain circumstances a suspect will be transferred to the hospital by police wagon.

[198]     He agreed that it is important in an investigation to make detailed and comprehensive notes as soon as reasonably practicable.

[199]     He agreed that he had only one page of notes in relation to this investigation and that those notes were only disclosed on the day that he gave evidence on January 7, 2019.

[200]     He agreed that the events surrounding the altercation with the accused were “noteworthy”, and that he deliberately decided not to take notes in this case, explaining:

Q         You'd agree that it's confusing why you didn't take notes then?

A         It's not confusing that I didn't take notes to me, Your Honour. As a police supervisor I don't take notes at all incidents. Coordinate the activities of my people and make sure they're doing their job. I trust their judgment, I trust -- and -- and also supervise their report-writing afterwards. And that is how I conduct my job as a patrol supervisor.

(Transcript, January 7, 2019, p. 18, ll. 38-47)

[201]     He did not read various reports prepared by other police officers who attended at the scene of the altercation with the accused, as this was an in-custody arrest and, therefore, the overall Report to Crown Counsel is prepared by the station Non-Commissioned Officer.

(ii)         Civilian Evidence

Kieran Foran

[202]     Mr. Foran testified in direct examination that he came to Canada from Ireland in 2017. Over the years he has held a variety of jobs, including security work as a doorman at pubs in Ireland. In addition, he had some military training for 6 to 8 months in Ireland.

[203]     On January 15, 2018, in the early morning hours, he was in the 1000 block of Granville Street, near the hostel. At the time, his residence was at the hostel.

[204]     He had been drinking at a local establishment, and had consumed no more than four beers. He testified that he felt sober at the time of the altercation between the accused and Constable Sargent.

[205]     He left the establishment at closing time and went out for a cigarette. From a Google map [Ex. 10], Mr. Foran marked the position where he smoked a cigarette beside a lamp standard located just to the south of a pizza place in the 1000 block of Granville Street.

[206]     He was walking northbound on Granville Street when he noticed the accused sitting on a bench and chatting to a couple of people. He did not observe anything unusual. It appeared to him as a normal and friendly conversation.

[207]     He next noticed the accused standing at the passenger side of a police car. He described the accused as “sort of crouched down” towards the window of the police car. He did not think anything of it.

[208]     He was approximately 10 to 15 metres to the north of the police car. The police car was facing south.

[209]     His attention was next drawn to a struggle taking place between a police officer (Constable Sargent) and the accused. He saw Constable Sargent trying to grab the accused to control him. It was Mr. Foran’s opinion that the accused was resisting Constable Sargent, as he was using both his hands to try to push Constable Sargent’s hands away.

[210]     He testified that Constable Sargent and the accused were facing each other, with Constable Sargent facing east and the accused facing west. He did not see the accused grabbing Constable Sargent.

[211]     It was his impression that Constable Sargent was trying to arrest the accused. It also appeared to him that Constable Sargent was trying to control one arm of the accused. As he was doing so, the accused retreated in a backward motion and made contact with the passenger door of the police car and he heard Constable Karellas scream.

[212]     He testified both Constable Sargent and the accused were grappling with each other when they went to the ground.

[213]     Constable Sargent and the accused were situated approximately one metre away to the left from Constable Karellas. The accused’s head was positioned to the west and his feet positioned to the east.

[214]     He went over to Constable Sargent and asked him if he needed assistance. Constable Sargent said “Yes”.

[215]     Mr. Foran testified he grabbed the accused by the belt and spun him onto his stomach. Mr. Foran then grabbed hold of the accused’s legs. As this was taking place, Constable Sargent was trying to control one of the accused’s arms without success.

[216]     He crossed both legs of the accused to stop him from kicking and flailing. He learned this tactic from his employment as a doorman in Ireland.

[217]     Mr. Foran heard Constable Sargent use his radio to request assistance. Within a very short period of time, other police officers were on the scene. Mr. Foran got the attention of one of those police officers and asked if he could take over. That police officer said “yes”. Mr. Foran released the legs of the accused and walked a short distance away.

[218]     He did not see the accused kick anybody.

[219]     It was his opinion that the police, including Constable Sargent, did not use any unnecessary force in their dealings with the accused.

[220]     In cross-examination, Mr. Foran agreed he may have consumed as little as two beer that evening.  Mr. Foran agreed with the accused that the grappling he observed took place “right near” the police car. He agreed that it was the accused who came into contact with the door of the police car:

Q         Right -- right near the police car, of course?

A         Yeah.

Q         And what ends up happening is the officer, while he's trying -- he's trying to swing the man down; the man is trying to retreat, and as a result of the officer trying to swing him down, that's when he comes into contact with the door, correct?

A         Correct.

(Transcript, January 8, 2019, p. 33, ll. 26-33)

[221]     He recalled that he was approximately one metre away when he made that observation. He then observed Constable Karellas drop to the ground, holding one of her legs. She was screaming in pain.

[222]     He did not know where Constable Karellas came from, but assumed she was exiting from the passenger side of the police car when she dropped to the ground.

[223]     He described the accused’s backward movement as an accidental retreat into the door of the police car when Constable Sargent was trying to swing him to the ground: Ibid. p. 34, ll. 8-25.

[224]     He testified when Constable Sargent was throwing the accused down, he was off balance and he contacted the police car door which then collapsed on Constable Karellas: Ibid. p. 34, ll. 32-40.

[225]     He agreed that there was only a single contact by the accused with Constable Karellas at the side passenger door of the police car. He saw Constable Karellas fall to the ground near the back passenger door of the police car.

[226]     He agreed that the accused’s back was turned towards Constable Karellas and that he was not trying to shut the car door or jump towards her. The actions of the accused did not appear to be deliberate Ibid. at p. 36, ll. 4-7.

[227]     He agreed that his attention was “squarely” on Constable Karellas, and that he never took his eyes off her from the time that he saw her fall to the ground until he went to provide assistance to her: Ibid. at p. 35, ll.18-37.

[228]     He then went immediately to Constable Karellas, who was screaming and appeared to be in agony. He then went to assist Constable Sargent.

[229]     He agreed that he was not concerned for his own personal safety when he was controlling the legs of the accused.

[230]     He agreed that he found it somewhat unusual that when other police officers arrived on the scene, he was not “swapped out” right away in relation to his leg hold of the accused.

[231]     He never saw the face of the accused and therefore could not say whether or not there were any injuries on the accused’s face.

Vladyslav Hryhorenko

[232]     Mr. Hryhorenko testified in direct examination that he was the staff member working at the hostel on January 15, 2018.

[233]     He was born in the Ukraine in July 1994. He speaks Ukrainian, Russian and English. Prior to coming to Canada in 2013, he completed two years at a university in the Ukraine. He took courses in economics and law.

[234]     When he came to Canada, he attended the International Language Academy of Canada for one year, and then attended Niagara College where he studied hospitality management.

[235]     In the early morning hours of January 15, 2018, he was behind the front desk in the lobby of the hostel when his attention was drawn to a disturbance outside and to the north of the hostel.

[236]     He described the disturbance as an argument involving several people. He went to one of the front windows of the hostel, where he saw a small female uniformed police officer and two male uniformed police officers talking to a big man (the accused) approximately five metres away from where he was standing in the hostel.

[237]     It seemed to him that it involved “some sort of argument, nothing interesting.” After two to five minutes, he returned to the front desk.

[238]     He had observed the accused earlier standing outside the hostel for approximately half an hour smoking, prior to the accused being approached by the police.

[239]     Approximately five minutes later, he heard sirens and then observed a lot of police cars arriving on the scene. He went back to the front window to see what was going on.

[240]     He saw the police trying to handcuff the accused and put him into a police car or police wagon. At the point where the police were trying to put the accused into a police car or a police wagon, he described the accused falling on the female police officer.

[241]     He testified that the accused was standing and that he may have stepped the wrong way, which caused him to fall backwards onto the female police officer. He thought she fell as well:

Q         Okay. And was he on his -- his feet or not when the police were trying to get him into the police vehicle?

A         Yeah, he was standing.

Q         Okay. And what caused him to fall? Are you able to say?

A         No. Like, as I'm saying, he might just stepped, like, wrongly on the car and this caused the fall.

Q         Okay. And can you describe his fall in any further detail?

A         Well, like as police lady was behind him, like he fallen backwards on her.

Q         How did the police lady react when he fell on her?

A         Mm, I think she fell too.

Q         I'm sorry?

A         She fell too because he felled on her.

(Transcript, February 27, 2019, p. 17, ll. 23-38)

[242]     He did not know what happened to the female police officer when the accused fell on her, but he does recall an ambulance being at the scene. He recalled that the female police officer was placed inside the ambulance.

[243]     He did not see anybody kick anyone.

[244]     He did not see any police officer mistreating the accused. He described the accused as being uncooperative and resisting police efforts to put him into the police car or police wagon.

[245]     He testified that after the altercation, two uniformed male police officers approached him in the hostel and asked if they could review CCTV video footage from the external video cameras mounted outside of the hostel.

[246]     In the following exchange, he described what he did and what he saw in relation to the video footage:

Q         And what I want to know is what you saw on the video, if anything?

A         So, like, it was the footage. Like, they were looking for all accident that happen, but I didn’t look, like, exact – like, the whole thing on the camera is them. So like I showed them, like, the main points of the accident.

Q         Okay. And what were the main points, as you said?

A         Like, an actual assault on police officer.

Q         Okay. But did you see anything yourself?

A         On the cameras?

Q         Yeah.

A         Nothing specific, I would say.

Q         Okay. What about when they were loading the big guy into the van?

A         Yeah.

Q         Did you -- did you see any of that on the CCTV?

A         Yeah.

Q         But prior to that did you see anything specific?

A         Specific, no. Just like the main action.

Q         Okay. And the main action is what?

A         Like, starting from the guys standing near the wall until he was finally put in the car.

(Ibid. p. 22, ll. 20-42)

[247]     The police officers asked him if they could burn some of the footage. He told them that they would have to contact the general manager if they wanted to burn any footage.

[248]     He recalled that he gave a statement to the police officers, and they took his contact details, including his telephone number.

[249]     He testified that on many occasions in the past, police officers have come to the hostel to view CCTV footage involving incidents that may have taken place in that area of Granville Street.

[250]     In cross-examination, Mr. Hryhorenko agreed that this incident stuck in his mind because he saw the small female police officer being injured when the accused fell on her: Ibid. p. 26, ll. 26-41.

[251]     He later learned from one of the two police officers who came to view the CCTV footage that her leg was broken. He was not told how it came to be broken. It was possible that one of the two police officers was a female police officer.

[252]     He testified that he saw the accused falling on the small female police officer’s leg when he was standing at the window. He recalled seeing the same activity on the CCTV video footage that he viewed with the two police officers, though it was not clear from the footage that the accused fell on her leg.

[253]     He could not recall being told by either of the two police officers that they would be returning to collect the CCTV video footage. Nor could he say whether or not that footage is still available.

[254]     He recalled that in or around late November or early December, he was contacted by the police concerning the availability of the CCTV video footage. He again told the police that he did not have access to the CCTV video footage and the police would have to contact the general manager.

[255]     While agreeing generally with the accused that his memory of events would be clearer on the night of the incident, he was not sure if that impacted his recollection on the day that he gave his evidence. He was satisfied with his recollection of the events that took place and the sequential order of those events.

[256]     Based upon his observations of the accused that evening, he believed the accused, while not drunk, was not sober.

(iii)         Expert Evidence

Wayne Jeffery

[257]     Wayne Jeffery was called as a witness on behalf of the accused. Mr. Jeffery was qualified as a witness with special skills and knowledge in the assessment levels of alcohol in the human body and drug intoxication, and related impacts upon the human condition.

[258]     In direct examination, the accused posed a variety of questions, including hypotheticals, respecting the impact of alcohol on individuals, including the accused, to Mr. Jeffery.

[259]     He was asked to give a general overview of the stages of alcohol influence on the human condition noted on a chart (the “Dubowski Chart”) in his scientific report:

Q         -- could you explain just a general overview of what these stages tell us?

A         Well that is a chart that has been used in scientific literature since the early seventies. This was published by Dr. Kurt Budgie [phonetic] out of the University of Oklahoma and has stood the scientific test of time, it's called the Seven Stages of Intoxication and it basically shows symptoms with regards to different blood alcohol level -- blood alcohol concentrations. This is based upon a social drinker. Of course, a novice drinker would show more symptoms, and an experienced drinker may show less symptoms at these levels.

            And, it goes from the stages of sobriety, euphoria, excitement, confusion, stupor, coma and death, up to and there's overlaps of each ranges. The first one being sobriety of 10 to 50 milligram percent. Euphoria being the next one of 30 to 120 and that basically is there for the different levels of tolerance of the individuals for that area.

(Transcript, February 28, 2019, p. 5, ll. 40-47 and p. 6, ll. 1-14)

[260]     He was asked to explain the definition of an “experienced drinker”:

A         An experienced drinker is one who drinks alcohol on a daily basis in large quantities and can get to much higher blood alcohol concentrations than a normal social drinker. The normal social drinker very seldom gets to blood alcohol levels above one five, 160 milligram percent, because they just do not have the tolerance to ethyl alcohol.

(Ibid. p. 6, ll. 17-23)

[261]     He reviewed medical reports respecting bloodwork done on the accused at St. Paul’s Hospital on January 15, 2018. Based on the information contained in the medical reports, it was his opinion that at or around 1345 hours that morning, the accused’s blood alcohol concentration (“BAC”) would have been at a level of 311 to 321 milligram percent.

[262]     In referencing that percentage back to the Dubowski Chart that would place the accused, subject to his tolerance of ethyl alcohol, either at the confusion stage or at the stupor stage.

[263]     He was asked to describe an individual’s internal symptoms and individual experience at these two stages of impairment:

A         Well physically and mentally, as I said alcohol is classified as a central nervous system depressant. It slows the body down, depending upon the alcohol level. Slows the mental functions down and it slows the physical functions. Physical functions, of course, you're going to have bloodshot watery eyes, possibly slurred speech at these levels, slurred speech, staggering, incoordination, physical abilities are going to be very, very slowed. Mentally he's -- reaction time is going to be slowed down, there's decrease in inhibitions, changes in emotions. If a person is very happy, he'll become very happy. If he's very depressed, he'll become more depressed. Alcohol enhances the person's emotional state at the time.

(Ibid, p. 9, ll. 30-44)

[264]     It was his further opinion:

                     That a 265-pound individual would have to consume anywhere between 19.2 to 19 bottles or cans of beer or 28.9 to 29.8 ounces of 40% proof alcohol absorbed into the blood to achieve a percentage level of 311 to 321 milligrams;

                     That the higher the BAC, the more the cognitive functions are going to be affected. Both physical and mental functions will slow. There would be a decrease in inhibitions and a lack of judgment;

                     That alcohol has a definite impact upon an individual’s memory. The higher the BAC, the greater the impairment of memory. Depending upon the amount of alcohol consumed, the memory function could become totally impaired;

                     That he agreed with the accused that a BAC of 311 to 321 milligrams is a high level, and that he would classify that individual as an experienced drinker;

                     That an individual having a BAC of 311 to 321 milligrams would experience vision impairment, particularly at night;

                     That an individual would experience double vision and would experience difficulty in focusing; and,

                     That an individual having a BAC of 311 to 321 milligrams would experience decreased inhibitions, lack of comprehension, lack of critical judgment and lack of vision which, in combination, might result in that individual not understanding where he actually is.

[265]     He was asked for his opinion as to the impact a BAC of 311 to 321 milligrams would have on an individual’s motor functions:

A         Well as I said, this would depend upon his tolerance to ethyl alcohol. At this high level, I'd expect him to be very slowed, showing physical outward signs of intoxication, instability in walking or if he was a tolerant drinker, he may be slow, very deliberate movements in that area. But physical outward signs should be quite obvious, unless he's an experienced drinker. As I said, it's been well documented that some people don't start to show physical signs until blood alcohol levels are around 300 milligram percent.

(Ibid. p. 12, ll. 33-43)

[266]     He was asked for his opinion on the impact of a BAC of 311 to 321 milligrams on an individual’s judgment:

A         Well as a higher blood alcohol level goes there's decrease in inhibitions, goes along with the person's judgment. What would happen is they would normally do things they normally wouldn't do as the body has inhibitions, it says no, I'm not going to do that. Then at the higher blood alcohol levels, that is blocked and you may do things you normally wouldn't do so your judgment is confused and compounded. The higher blood alcohol levels, critical judgment is really affected.

(Ibid. p. 14, ll. 8-18)

V. ISSUES

(i)            Allegations of Charter Breaches

(a)   The Accused

[267]     In his submissions, the accused has identified two categories of abuse of process:

                     First, there is the main category of abuse of process which is based upon the circumstances where improper conduct of a state actor has made it impossible for an accused to have a fair hearing, including circumstances where the state negligently fails to preserve relevant evidence; and

                     Second, there is the residual category of abuse of process based upon circumstances where an accused may still be able to have a fair hearing, but the integrity of the justice system in the broader sense would be undermined due to significant misconduct of state officials in the investigation of a case.

[268]     The Supreme Court of Canada (the “SCC”) in R. v. Babos, 2014 SCC 16, at paras. 34 and 35 described the two categories as follows:

34 Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.

35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[269]     The accused submits that both the categories of abuse of process should be invoked here.

[270]     First, with respect to the main category, he submits that the failure of the VPD to preserve and/or to secure the CCTV video surveillance from the hostel has undermined the accused’s right to make full answer and defence.

[271]     Second, with respect to the residual category, he submits that the VPD’s failure to preserve and secure CCTV video surveillance from the hostel was either a deliberate act or unacceptably negligent conduct.

[272]     Third, with respect to the residual category, he submits that the VPD applied excessive force during the course of his arrest; the situation was then exacerbated by intentional deceptive conduct committed by various VPD members involved in this case. To proceed with this trial would undermine the integrity of the administration of justice.

[273]     The accused cites the SCC decision in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R.680, at paras. 17 and 20, as apposite to his submission that the duty of the Crown to disclose also establishes a corresponding duty to preserve relevant evidence.

[274]     He submits that in situations where it is found that police conduct subverts or frustrates disclosure of evidence that would likely be relevant to an accused, this conduct can amount to unacceptable negligence, and is contrary to s. 7 of the Charter: R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80.

[275]     The accused made thorough submissions with reference to numerous cases in which courts examined facts in which police conduct amounted to unacceptable negligence resulting in the loss, destruction and/or failure to preserve evidence, including:

                     R. v. Nedig, 2015 BCCA 489;

                     R. v. Carosella, supra;

                     R. v. Bero, 2000 CanLII 16956; and

                     R. v. Decotiis, 2005 BCPC 224.

[276]     He submits that the VPD conduct amounted to unacceptable negligence which irreparably prejudiced the accused’s right to make full answer and defence; thus, preventing him from having a fair trial, and constituting an abuse of process.

[277]     The remedy the accused seeks for the failure of the VPD to preserve and/or secure the CCTV surveillance video from the hostel is a judicial stay of proceedings or, in the alternative, exclusion of the evidence which the lost CCTV could have contradicted, or, in the further alternative, an adverse inference finding relative to the VPD investigation.

[278]     With respect to the residual category of abuse of process, the accused submits that the VPD conduct “risks tarnishing the integrity of the judicial system” and, thus, would fall within the abuse of process doctrine: Martin v. Canada, 2017 BCCA 220, at para. 41.

[279]     The accused also submits that a judicial stay of proceedings would be justified under the residual category by reason of the excessive force used by VPD members during the arrest of the accused.

[280]     He made thorough submissions with reference to numerous cases in which courts examined police conduct in which an accused was assaulted during an arrest, or just after an arrest, resulting in a finding of a breach of s. 12 of the Charter, including:

                     R. v. Jackson, 2011 ONCJ 228;

                     R. v. Wiscombe et al., 2003 BCPC 418;

                     R. v. Tang, 2011 ONCJ 525; and

                     R. v. Dellapenna, 1995 CanLII 428 (BCCA).

[281]     At page 16 of his written submissions, the accused proposed six circumstances that would provide a “strong foundation” for a stay of proceedings:

1.            a deliberate assault of the accused with multiple officers present;

2.            a relatively minor offence forming the basis for the arrest;

3.            the accused not presenting a threat to safety at the time of the assault;

4.            the accused being unable to flee or escape;

5.            the investigation being manipulated by the police in an attempt to cover up the conduct; and

6.            the “circle of silence” regarding the abuse continuing at trial.

[282]     He submits that propositions 5 and 6 amount to deceptive conduct by members of the VPD which, standing alone, would amount to an abuse of process under the residual category and would justify a judicial stay of proceedings.

[283]     At page 18 of his written submissions, the accused suggested that there were four circumstances in play in this case that would justify a stay of proceedings:

1.            the involvement of multiple officers;

2.            the fabrication of evidence against the accused;

3.            the deception being presented via multiple documents and testimony; and/or

4.            the attempts to continue the deception after it had surfaced.

[284]     The accused’s submissions in his analysis of the evidence as it applies to the Charter application can be summarized as follows:

(1) The CCTV video surveillance from the hostel

                     That the court ought to accept the evidence of Mr. Hryhorenko as both credible and reliable in establishing that there was video captured from the external camera of the hostel that depicts the accused falling on Constable Karellas;

                     That numerous VPD members identify an area where the altercation took place between the accused and Constable Sargent that should have been captured by the hostel CCTV camera;

                     That at the very least, the hostel CCTV video surveillance would have depicted the accused on a bench prior to his immediate interaction with Constable Sargent and Constable Karellas, which could provide insight into the demeanour of the accused;

                     That Mr. Hryhorenko testified that he interacted with two VPD members immediately after the altercation between the accused and Constable Sargent and that he reviewed with those officers the footage in which he observed the accused fall onto Constable Karellas, which footage was not preserved or seized at that time by the two VPD members;

                     That the CCTV surveillance footage would be highly relevant, and critical to the defence of the accused. Nothing meaningful was done to preserve or seize the footage after January 15, 2018, and the evidence is no longer available;

                     That while Constable Eades’s evidence is inconsistent with Mr. Hryhorenko’s evidence, it is possible that Constable Eades viewed the CCTV surveillance footage with a different hostel employee, and failed to watch the proper time frame or camera angle;

                     That the court ought to draw an adverse inference in relation to VPD conduct as they deliberately failed to preserve or seize the CCTV surveillance footage when the two VPD members watched that footage with Mr. Hryhorenko. They would have known that Constable Karellas was injured when the accused fell on her and not due to any kick. This amounts to a cover-up;

                     That the loss of the CCTV surveillance footage has resulted in the accused losing potentially crucial evidence to defend himself from the allegations of intentionally causing a severe injury to Constable Karellas. This loss of critical evidence has irreparably prejudiced the accused’s ability to make full answer and defence;

                     That Mr. Hryhorenko never had the opportunity to review a contemporaneous recording of his recollection concerning the altercation of the accused with Constable Sargent;

                     That Mr. Hryhorenko testified that what he observed during the altercation was memorable, as he had never before seen a police officer injured outside the hostel. Both Mr. Foran and Mr. Hryhorenko were consistent in their evidence that the accused fell backwards onto Constable Karellas;

                     That the CCTV surveillance footage from the hostel would have provided the accused with evidence to contradict the allegations that he kicked Constable Karellas; and

                     That the credibility and ultimate reliability of the evidence of Constable Karellas and Constable Sargent could have been severely tested, as the CCTV video footage “… could have provided the objective, accurate and dispassionate evidence about the surrounding circumstances that would likely have undermined the officer’s credibility in a way that no other evidence in this case could”: Written Submissions, pp. 23 and 24.

(2) Excessive Force and Deceptive Conduct

                     That the knee strikes and punches that were applied to subdue the accused all occurred when there was a minimum of three VPD officers on top of the accused;

                     That while the situation may have been volatile, by the time the accused was face down on the ground with various VPD officers on top of him he no longer posed a threat to anybody, including the police officers;

                     That when the accused was on the ground and being subdued, the evidence establishes that he never attempted to punch, kick, harm or threaten anybody;

                     That Mr. Foran described the accused as being “under control” when he was holding his feet together;

                     That once the accused was face down on the ground with the various VPD officers on top of him, any safety concerns, including concerns for Constable Karellas, were negated;

                     That there was no attempt at flight or resumption of the offending behaviour;

                     That Constable Domingo punched the accused repeatedly in the face when he was already effectively under control;

                     That the physical restraint exercised by Mr. Foran to control the legs of the accused was both measured and effective, while various members of the VPD police, trained in use of forcible restraint, exercised force far in excess of what was necessary;

                     That there were no other exigent circumstances that would justify the degree of force applied in this case;

                     That the VPD police members who responded to Constable Sargent’s call for assistance subsequently attempted to cover up their conduct: (1) no officer testified to seeing their colleagues’ actions; (2) no officer claims to know how [the accused] suffered the laceration to his forehead; and (3) some officers attempted to attribute the patch of blood to Constable Karellas’s injury, which is demonstrably false: Ibid. at p.31;

                     That the VPD police members who came into direct contact with the accused minimized their individual responsibility for any serious injury inflicted on the accused, while at the same time not blaming any of their colleagues;

                     That the complete lack of handwritten notes by virtually all of the responding VPD police officers amounts to an attempt by the police to “... create a dearth of information regarding their conduct”: Ibid. at p. 33;

                     That the various and contrasting histories and recordings in various paramedic and hospital reports suggest that the VPD police were taking steps to cover up the circumstances that gave rise to the medical reports; and

                     That while Constable Karellas testified that she told several police officers at the scene that she was kicked, this is information not recalled by the VPD police members who came into contact with Constable Karellas. She further testified that she told Constable Sargent while being transported in the ambulance that she was kicked, while Constable Sargent recalled she told him that she was kicked at the hospital.

[285]     The accused submits that, in relation to breaches of his ss. 7 and 12 Charter rights, a stay of proceedings is the only appropriate remedy for the abuse of process under both categories (main and residual).

(b)   The Crown

[286]     In its submissions, the Crown takes the position that this is not one of the “clearest of cases” that would warrant a judicial stay of proceedings.

[287]     The Crown submits that the accused has first failed to establish that there have been breaches of his ss. 7 and 12 Charter Rights. Additionally, as the accused is seeking the remedy of a judicial stay of proceedings pursuant to s. 24(1), the accused has failed to establish that any prejudice caused by the state’s conduct will be “manifested, perpetuated or aggravated through the conduct of the trial or by its outcome, and there is no other appropriate remedy”: R. v. Regan, 2002 SCC 12, at para. 55.

[288]     The Crown concedes that it has a duty to disclose all relevant information in its possession. In circumstances where the state is responsible for lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If the explanation satisfies the trial judge that the evidence has not been destroyed or lost due to unacceptable negligence, then the duty to disclose has not been breached.

[289]     The Crown submits that it is up to the accused to establish prejudice, and that the degree of prejudice must be serious. The mere possibility, even if realistic, that evidence could have been advantageous to an accused in mounting his defence does not meet the test for serious prejudice: R. v. Buyck, 2007 YKCA 11.

[290]     The Crown submits that the SCC in La, supra, at para. 25 establishes that the prejudice to the accused must arise out of the loss of the evidence. Actual prejudice to the right to make full answer and defence must be shown on a balance of probabilities.

[291]     The Crown largely agrees with the interpretation of the law submitted by the accused respecting the main and residual categories of abuse of process.

[292]     The Crown’s submissions regarding the evidence as it applies to the Charter application can be summarized as follows:

(1) The CCTV video surveillance from the hostel

                     That CCTV surveillance footage from the hostel would clearly be relevant. However, the court ought to find that Constable Eades was both credible and reliable when she testified that she reviewed the footage downloaded from the relevant CCTV camera and found that it did not capture any part of the altercation between the accused and the VPD;

                     That Constable Eades was tasked by Sergeant MacKenzie to conduct a video canvass. Constable Eades testified that she performed the video canvass on her own, with negative results. She documented in her notebook that the ”… outdoor camera does not capture scene”;

                     That Constable Eades conducted the video canvass at the hostel in a professional manner and viewed surveillance video from the only relevant external camera. This was not a matter of mistake, sloppiness or negligence;

                     That she reviewed the surveillance footage from the hostel from approximately 20 minutes prior to the altercation until the point after the altercation when forensic identification officers arrived on scene. She testified that the footage she viewed did not capture the altercation, but did capture some fuzzy images of police cars after the altercation;

                     That she testified that she was told by an employee at the hostel that the CCTV footage was in real time and that the real-time was accurate;

                     That Constable Eades conceded in cross-examination that “in hindsight” it may have been beneficial to seize a copy of the CCTV video footage from the hostel, but based on her viewing of the footage it did not show anything of evidentiary value;

                     That the court should give greater weight to Constable Eades’s evidence in relation to the CCTV footage over that of Mr. Hryhorenko, because Mr. Hryhorenko’s evidence was contradictory to both the evidence of the VPD officers and the evidence of Mr. Foran, the independent civilian member who initially assisted Constable Sargent;

                     That Constable Eades took contemporaneous handwritten notes documenting the results of her video canvass;

                     That Mr. Hryhorenko clarified in direct examination that he did not want to view the “whole thing” on the CCTV footage with the two police officers, and that he did not see anything “specific” regarding the incident;

                     That the accused never put it directly to Constable Eades that she had viewed the wrong CCTV surveillance footage from the hostel;

                     That Constable Eades’s evidence is supported by a still image taken from the north-facing CCTV camera [Ex. 5] depicting a white glare and little else, which Constable Eades testified was what she observed on January 15, 2018;

                     That Constable Eades’s conduct in her video canvass was not unacceptably negligent, nor can it be reliably established that the CCTV video footage would “more likely than not” have assisted the accused; and

                     That the accused has not established that the failure to seize and preserve the CCTV video footage from the hostel would meet the test for serious prejudice.

(2) Excessive Force and Deceptive Conduct

[293]     The Crown submits that the use of force by Constable Sargent, Constable Domingo and Constable Golchin must be assessed in regard to the circumstances that existed at the time the force was employed.

[294]     The Crown submits that the force that was applied was required to obtain compliance by the accused.

[295]     The Crown submits that the accused has failed to establish on a balance of probabilities that the various physical actions by VPD members in taking the accused into custody amount to excessive force, or force that is so excessive as to offend society’s sense of decency and, therefore, the actions of the VPD members do not give rise to breaches of the accused’s ss. 7 and 12 Charter rights.

[296]     The Crown’s other submissions in relation to the issue of excessive force can be summarized as follows:

                     That police actions should not be judged against a standard of perfection. Police engage in dangerous and demanding work, and police actions will often be responsive to exigent circumstances;

                     That there is evidence that the accused was combative and resistant with members of the VPD, which should militate against a finding that the level of force that was applied was excessive;

                     That the VPD members who attended at the scene had to make “a split-second decision” in response to the circumstances that existed at the time;

                     That the court ought to look at the whole sequence of events that unfolded - from the original altercation between the accused and Constable Sargent until the accused was loaded into the police wagon - to determine whether or not the force that was applied was excessive;

                     That the court ought to accept the evidence of Constable Sargent, Constable Domingo and Constable Golchin that the accused, during their efforts to have him comply with police officer commands and directions, was actively struggling when the various strikes and blows were applied;

                     That Constable Sargent’s request for assistance was characterized as a “Code 3” call, and in that context subduing the accused would be of paramount importance;

                     That Constable Sargent, Constable Domingo and Constable Golchin all testified that any application of force took place before the accused was in handcuffs, and that once he was in handcuffs no further force was applied;

                     That both Mr. Foran and Mr. Hryhorenko testified that they did not observe any of the VPD members verbally or physically mistreat the accused or use unnecessary force;

                     That there is evidence that the accused was struggling with VPD members while they were trying to place him in the police wagon, and similarly at the hospital, where restraints were required; and

                     That the injuries sustained by the accused were not significant.

[297]     With respect to the issue of deceptive conduct, the Crown submits that the accused has failed to establish on a balance of probabilities that the VPD members involved in this investigation have fabricated evidence or given false testimony.

[298]     The Crown submits that where there is evidence given at trial that does not appear in a police officer’s notes, that goes to the issue of credibility and does not create a purported Charter breach.

[299]     The Crown submits that the accused has failed to establish any reliable evidence that any of the VPD members who testified at this trial fabricated their evidence to conform to the evidence of Constable Karellas that she was kicked by the accused.

[300]     The Crown submits that, were the court to find breaches of the accused’s ss. 7 and 12 Charter Rights, he has failed to meet the onus for the direction of a judicial stay of proceedings under s. 24(1) of the Charter.

VI. RULING ON CHARTER BREACHES

(i)            The CCTV Video Surveillance from the Hostel

[301]     The accused has asserted that the VPD, which by extension includes the Crown, has failed to secure and/or preserve the CCTV video footage from the hostel that was viewed by two VPD members in the presence of Mr. Hryhorenko, and thereby irreparably harmed the accused’s ability to make full answer and defence.

[302]     Constable Eades was tasked by Sergeant MacKenzie at the scene of the altercation between Constable Sargent and the accused to perform a video canvass.

[303]     She testified that she went into the hostel and observed Constable De Costa taking a witness statement from Mr. Foran. Constable De Costa corroborated Constable Eades on that point.

[304]     She testified that she spoke to a staff member at the hostel who arranged for her to review video footage from the north-facing external camera which, in her opinion, would capture the area where the altercation between Constable Sargent and the accused took place.

[305]     She made sure to inquire that the footage she was going to review was in real time. Out of an abundance of caution she began to view the footage at a point commencing twenty minutes prior to the altercation taking place. In her opinion she was unable to observe anything of evidentiary value.

[306]     Constable Eades made detailed notes of the results of the video canvass from the hostel and other adjacent businesses.

[307]     Constable Eades was candid in cross-examination that, “in hindsight”, it perhaps would have been best had she seized the CCTV footage that she viewed on January 15, 2018. That said, she maintained her position that she saw nothing of any evidentiary value in the footage that she viewed.

[308]     I do not find that Constable Eades’s testimony was undermined or rendered unreliable through cross-examination.

[309]     I accept the evidence given by Constable Eades to be both credible and reliable in establishing that the CCTV footage that she observed in the hostel on January 15, 2018, did not depict anything of any evidentiary value with respect to the altercation between Constable Sargent and the accused.

[310]     That, however, does not end the analysis. Mr. Hryhorenko testified that the events of the early hours of January 15, 2018, stood out for him because of the injury sustained by the female police officer (Constable Karellas).

[311]     He testified that two VPD members came into the hostel and he viewed with them CCTV footage which, in part, depicted the accused falling backwards onto Constable Karellas.

[312]     The identity of these two VPD members remains a mystery. Whatever CCTV footage Constable Eades and Mr. Hryhorenko viewed is no longer available.

[313]     However, the accused does have the benefit of the testimony of Mr. Hryhorenko, who says he went to a window of the hostel and at that time saw the accused falling backwards onto Constable Karellas. He said that he did not see anybody kick anyone. What he observed through the window is consistent with what he testified he viewed on the CCTV footage with the two VPD members.

[314]     I find that the accused’s right to a fair trial has not been irreparably harmed by a failure of the state to secure and/or preserve CCTV footage from the hostel. The accused has failed to establish that he has suffered serious prejudice by the failure of the state to seize and/or secure CCTV footage from the hostel.

[315]     I find that the conduct of Constable Eades was not unacceptably negligent in her video canvass of the CCTV footage from the hostel. To the contrary, I find that she acted in a proper and professional manner.

[316]     I conclude that with respect to the main category of abuse of process, the accused has failed to establish that the state has made it impossible for him to have a fair hearing, as required by s. 7 of the Charter.

(ii)         Excessive Force and Deceptive Conduct

[317]     The accused has asserted that members of the VPD applied excessive force when he was being taken into custody, which force amounted to cruel and unusual punishment, contrary to s. 12 of the Charter.

[318]     The accused is a large and imposing man. It is indisputable that the accused was intoxicated at the time of his interactions and physical altercation with Constable Sargent.

[319]     I find that the altercation between the accused and Constable Sargent justified Constable Sargent seeking the assistance of other police officers, resulting in a Code 3 urgent response.

[320]     It has not been disputed by the accused that the scene of the altercation was chaotic when the other VPD members arrived. This must be taken into account in judging the actions of the VPD members who came into direct contact with the accused.

[321]     The area of the altercation between Constable Sargent and the accused was in the entertainment district of Granville Street. Other civilians were in the area, including Mr. Foran. Constable Karellas was severely injured and lying on the ground next to her police car. It was night time. The accused was on the ground with Constable Sargent over him. Mr. Foran was securing the legs of the accused. Both Constable Golchin and Constable Domingo testified that the accused was neither compliant nor secured when they arrived on the scene.

[322]     As noted by the SCC in R. v. Nasogaluak, 2010 SCC 6, at para. 35, police actions should not be judged against a standard of perfection. Police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of existing exigent circumstances.

[323]     Based on the foregoing, I find that exigent circumstances were in play at the time the responding police officers attended at the scene of the altercation between Constable Sargent and the accused.

[324]     While Mr. Foran did not see how the altercation between Constable Sargent and the accused started, he was nonetheless well-positioned to observe events as they unfolded once the altercation was underway.

[325]     Mr. Foran was of the opinion that it was the accused who posed a “threat” rather than Constable Sargent. He observed both Constable Sargent and Mr. Foran “grappling” with each other before the accused was taken down to the ground.

[326]     Mr. Foran jumped in to assist Constable Sargent by securing the legs of the accused until he was spelled off by another VPD member. Mr. Foran then moved away from the immediate scene where the continuing altercation was taking place.

[327]     Mr. Foran testified that it was his opinion that Constable Sargent did not apply any excessive or improper force to the accused.

[328]     While Mr. Hryhorenko did not observe the entirety of the altercation involving the accused and the VPD members, he testified that he did not observe any VPD members verbally or physically mistreating the accused or using unnecessary force.

[329]     Constable Sargent testified that he was experiencing a great deal of difficulty in attempting to apply handcuffs to the accused. His radio mike had been dislodged by the accused, which complicated the altercation in that he was trying to call for assistance while at the same time trying to subdue the accused.

[330]     Constable Sargent, Constable Domingo and Constable Golchin all stated that the various knee strikes and punches were necessary to secure the compliance of the accused. Having found that exigent circumstances were in play, it is not surprising that they did not see what each of the other police officers was doing in his efforts to secure the compliance of the accused.

[331]     I find the evidence of Constable Sargent, Constable Domingo and Constable Golchin to be both credible and reliable in establishing that physical force was required to secure the compliance of the accused.

[332]     I was concerned that Constable Domingo found it necessary to punch the right side of the accused’s face three times. However, whether or not those punches were excessive, they would not, standing alone, justify the drastic remedy of a judicial stay of proceedings.

[333]     The force that was applied by the VPD members to secure the compliance of the accused took place after Constable Sargent’s Code 3 call for assistance. By that time Constable Karellas was already on the ground with her broken shin.

[334]     The accused has been charged with offences that took place before the Code 3 call was made. Had the accused, for example, been charged with an offence in which Constable Domingo was the complainant, then his use of force would have to be scrutinized to determine whether or not that force was excessive having regard to all of the surrounding circumstances. That is not the situation here.

[335]     The accused did sustain injuries, including a two inch laceration above his left eye, a half inch laceration to his left cheek, a half inch laceration to the bridge of his nose, and various abrasions. I do not find that these injuries were significant.

[336]     I further find that the injuries sustained by the accused are largely a direct consequence of his failure to comply with police commands after he had been lawfully arrested by Constable Sargent.

[337]     I find that the accused has failed to establish on a balance of probabilities that the VPD members who were physically in contact with the accused on January 15, 2018, applied excessive force in their efforts to secure the accused’s compliance following his arrest for uttering threats to Constable Sargent.

[338]     The accused has also asserted that the VPD members involved in this investigation intentionally failed to take adequate notes with respect to matters of crucial importance, and that this formed part of a pattern of deception to minimize or cover up events that took place in the early morning hours of January 15, 2018.

[339]     Whether or not adequate notes were made by the VPD members involved in this investigation goes to the issue of credibility, and not to the issue of whether or not there has been a Charter breach: R. v. Whitton, 2016 BCSC 1799, at para. 40.

[340]     It is desirable that written notes be made reasonably contemporaneously with events that unfold during a police investigation. However, there is no rule of law to that effect: R. v. Acosta, 2014 BCCA 218, at para. 15.

[341]     I have found that the scene of the altercation with the VPD members and the accused was chaotic. Additionally, Constable Karellas, a member of Team 1, was severely injured. Securing compliance of the accused and caring for Constable Karellas would be the two paramount concerns of the various VPD members involved at the scene. Pulling out notebooks to make contemporaneous notes would, legitimately, not be a priority for them.

[342]     I find that the accused has failed to establish that the lack of contemporaneous notes forms part of any deceptive police conduct in relation to the excessive force issue or with respect to the overall investigation of this case.

[343]     Similarly, I find that the accused has failed to establish that there is any evidence to support his contention that the police either directly or indirectly conducted themselves in a manner that was intended to deceive the court through fabrication of evidence or covering up of evidence in relation to the investigation of the accused.

[344]     I find that in relation to the residual category of abuse of process, the accused has failed to establish on a balance of probabilities that there was any state misconduct that would undermine the integrity of the judicial process.

[345]     Accordingly, the accused’s application for a remedy because of an abuse of process pursuant to s. 24(1) of the Charter is dismissed.

(iii)         Has the Crown met its Burden of Proof?

(a)   The Accused

[346]     While not minimizing the seriousness of the injury sustained by Constable Karellas, the accused submits that there is a paucity of credible and reliable evidence that would establish beyond a reasonable doubt that he is guilty of any of the charges brought against him.

[347]     In particular, he challenges the credibility and reliability of the testimony of Constable Karellas and Constable Sargent. He identified what he submitted were inconsistencies and common-sense pitfalls in their testimony that would negatively impact their credibility and their ultimate reliability.

[348]     The accused submits that his high level of intoxication at the time of the altercation with Constable Sargent would likely have impacted his ability to form the specific intent to utter a threat to Constable Sargent, as well as his ability to recognize that Constable Sargent was a police officer: R. v. McRae, 2010 BCSC 558, at paras. 107 and 141, and R. v. Velasquez, 2006 ONCJ 469, at paras. 8 – 10, respectively.

[349]     In his submission, the accused places significant weight on the evidence of Mr. Foran. The accused submits that Mr. Foran was in the best position to observe, recall and recount what took place at the time of the altercation between Constable Sargent and the accused.

[350]     The accused suggests that the starting point for the analysis of the evidence is whether or not the court is satisfied beyond a reasonable doubt that the accused uttered a threat to Constable Sargent.

[351]     If the court finds the accused did utter a threat, then the court must assess whether or not his level of intoxication impacted his ability to form the specific intent to intimidate Constable Sargent or to have Constable Sargent take the threat as a serious one.

[352]     The accused submits that the fact that three hours passed between the initial arrest of the accused and the request from Constable Colenutt that the accused also be arrested for uttering a threat would undermine the seriousness of the alleged threat.

[353]     The accused submits that, overall, the allegation of the threat suffers from numerous frailties, ranging from contradictory evidence to improbabilities surrounding the conduct of the accused, as well as the police response, that should raise a substantial doubt as to whether or not he ever threatened anyone.

[354]     In the alternative, the accused submits that even if the court was to find that he threatened Constable Sargent, the testimony of Mr. Jeffery establishes that the accused’s level of intoxication might have impaired his ability to form the specific intent to threaten.

[355]     In relation to the allegations that involve an assault element, the accused submits that there were no reasonable grounds for an arrest. He submits that if the court was to find that his arrest was not lawful, then he would have been entitled to resist or to defend himself in his altercation with Constable Sargent.

[356]     In the alternative, if the court were to find the arrest was lawful, the accused submits that the altercation between Constable Sargent and the accused does not amount to an assault.

[357]     The accused submits that Mr. Foran’s testimony would be credible and reliable in establishing that, if anything, the accused was retreating from Constable Sargent at the time they were “grappling” with each other.

[358]     Additionally, the accused submits that the testimony of Mr. Jeffery establishes that the accused would likely have lacked the coordination and balance necessary to sustain any prolonged assault on Constable Sargent.

[359]     If the court was to find that an assault occurred, the accused says that his level of intoxication may have impaired his ability to recognize Constable Sargent as a police officer. Again, the accused says that the testimony of Mr. Jeffery supports this submission.

[360]     The accused concedes that in relation to the allegations in which the complainant is Constable Karellas, if the court was to find that her injury resulted from an intentional assault by the accused, her broken leg would constitute bodily harm or wounding, maiming or disfiguring.

[361]     The accused submits that the principal issue to be determined with respect to these allegations is what caused her injury: was it as a result of the accused falling on her, or was it from a kick?

[362]     He submits that Constable Karellas’s testimony on this point is “… incredible, inconsistent with reliable evidence, internally inconsistent and improbable… In contrast, Mr. Foran was an impartial witness, whose evidence was logical and corroborated generally by the earliest medical records”: Written Submissions at p. 31.

[363]     Additionally, the accused submits that it simply did not make sense that no police officers who came into direct contact with Constable Karellas at the scene asked her how she was injured.

[364]     The accused submits that the initial EHS Patient Care Report (the “PCR”) [Ex. 14 and 14a] do not make any mention that Constable Karellas was injured as a result of being kicked. He submits that Constable Karellas was coherent and able to communicate with emergency personnel, and therefore it would be a reasonable inference that she also provided the patient history in which it is reported that the accused either fell on her or jumped on her.

[365]     At 4:02 AM on January 15, 2018, Dr. Hunter made the first medical reference in the patient history that Constable Karellas, “… was pursuing a person of interest in doing a takedown … she got kicked …”: [Ex. 25]. The accused suggests that this was the first time that the idea that Constable Karellas was kicked arose.

[366]     He submits that if Constable Karellas had been kicked, and she repeatedly told other VPD members at the scene of the altercation that she had been kicked, then why is it that no other VPD members who were in direct contact with Constable Karellas at the scene heard her tell them that she had been kicked?

[367]     In the alternative, the accused submits that if the court finds that the accused did kick Constable Karellas, then the Crown has not established beyond a reasonable doubt that the kick was an intentional kick.

[368]     The accused submits that there is reliable evidence that he was thrashing and flailing his arms and legs when he was on the ground with Constable Sargent above him. It would be unlikely that the accused would have noticed Constable Karellas, particularly in light of his state of intoxication.

[369]     He submits that the doctrine of transferred intent would not apply in this case, as the Crown has failed to establish that in attempting to assault Constable Sargent, the accused’s actions amounted to an assault of Constable Karellas. In addition, the Crown has failed to establish that the accused’s attempted assault of Constable Sargent raised a risk of non-trivial bodily harm.

[370]     Finally, the accused submits that in relation to the allegation of assault causing bodily harm to Pamela Karellas, the evidence falls short of establishing that the accused was engaged in an unlawful act that caused the injury to Constable Karellas.

(b)   The Crown

[371]     The Crown submits that the accused, in a state of intoxication, confronted Constable Sargent with a demand for a cigarette, which quickly escalated into a verbal threat by the accused to Constable Sargent.

[372]     It submits Constable Sargent had ample grounds to arrest the accused after the verbal threat was made, during the course of which arrest the accused assaulted Constable Sargent.

[373]     It submits that there is evidence that would establish beyond a reasonable doubt that the accused knowingly threatened Constable Sargent and that thereafter did intentionally assault Constable Sargent.

[374]     It submits that in relation to the counts involving Constable Karellas, her evidence is credible and reliable in establishing counts 1 - 3 of the Information.

[375]     It submits that in relation to the allegation of assault causing bodily harm, the court can rely on the evidence of Mr. Foran to establish its case.

[376]     It submits that in relation to the elements necessary to establish aggravated assault as set out in count 1 of the Information, and assault causing bodily harm as set out in count 6 of the Information, the Crown does not have to establish that the accused was aware that he was engaged with police officers. Further, with respect to count 6, the Crown says that it needs to prove only that the accused was engaged in an unlawful act and that bodily harm resulted.

[377]     It submits that the doctrine of transferred intent would apply to counts 1 - 3 of the Information. In this regard, the accused’s intent to assault Constable Sargent, being an offence of general intent, is sufficient to prove the aggravated assault of Constable Karellas, given the gravity of her injury.

[378]     It submits that the accused cannot rely upon his self-induced state of intoxication as a defence by operation of s. 33.1(3) of the Code, which reads as follows:

This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

[379]     It submits “… that the accused acted like, and was indeed, a drunk and belligerent bully bent on baiting the officers or at least Constable Sargent into some form of antagonistic exchange or physical conflict for reasons known only to himself. He succeeded”: Written Submissions at p. 2.

[380]     It further submits that allegations made by the accused that there was a conspiracy by various VPD members to concoct, fabricate or to suppress evidence are very serious allegations that are without substance, and do not stand up under a detailed analysis of the evidence.

[381]     The Crown’s further submissions with respect to a review of the evidence pertaining to the offences contained in the Information can be summarized as follows:

                     That the evidence of Mr. Foran was quite clear that Constable Karellas sustained her injury when she struck the door of the police car;

                     That Constable Karellas testified that Constable Sargent had taken the accused to the ground, and that when she came to assist her partner, the accused’s knees were up and he was kicking his feet. She said a “really hard” kick came into contact with her shin;

                     That she testified that neither the accused nor Constable Sargent fell on her;

                     That Mr. Foran further testified that the accused appeared to be “more of a threat” in the altercation with Constable Sargent, and that he secured the legs of the accused to “prevent him from kicking and flailing”;

                     That Mr. Foran’s testimony on this point, in part, corroborates Constable Karellas’s testimony that her injury was caused by a kick;

                     That in any event, the court should find the accused guilty of counts 1 – 3, and 6, as it does not matter whether the court finds that Constable Karellas sustained her injury as a result of a kick or as a result of being hit by the door of the police car, as, either way, the accused was engaged in an unlawful act - assaulting Constable Sargent - at the time;

                     That in particular with respect to count 6, the conduct of the accused would give rise to an objective foresight of bodily harm, and that bodily harm resulted;

                     That in relation to counts 1 – 3, the court ought to find that the doctrine of transferred intent would apply, as the accused assaulted Constable Sargent and, therefore, that intent would transfer to Constable Karellas;

                     That the medical records [Ex. 14a, 15 and 16] do not identify the source of the various accounts in the patient history;

                     That when EHS personnel arrived at the scene of the altercation, their ability to properly explore what had happened to Constable Karellas was hampered by the surrounding chaos;

                     That at the hospital, Constable Karellas told Constable Sargent and Dr. Hunter that she had been kicked;

                     That Constable Karellas would likely have been aware that a CCTV canvass was being performed, and that she would not jeopardize her career by stating as a fact that she had been kicked if that could have been contradicted by the CCTV canvass; and,

                     That Mr. Hryhorenko’s account as to what took place cannot reasonably be true in view of the other evidence led by the Crown that contradicts his recollection of events.

[382]     In its submissions, the Crown reviewed elements of the law relating to aggravated assault, assault causing bodily harm, the doctrine of transferred intent and the defence of intoxication. Where helpful to this ruling, reference will be made to those submissions in the court’s analysis of the applicable law and findings of fact.

VII. RULING ON WHETHER OR NOT THE CROWN HAS MET ITS BURDEN OF PROOF

(i)            Legal Framework

(a)   Discussion

[383]     The Crown and the accused largely agree on the elements that must be established with respect to the charges laid in the Information. They part ways in relation to the interpretation of the evidence and the facts they say ought to be found by the court from the evidence.

[384]     In this case, I find the credibility of the witnesses, and the ultimate reliability of their testimony, is critical.

[385]     In analysing the credibility and reliability of the witnesses, it is important to keep in mind the distinction between the two concepts. Credibility concerns veracity, while reliability turns on accuracy - the ability to observe, recall and recount: R. v. Khan, 2015 BCCA 320, at para. 44.

[386]     Additionally, the court must avoid entering into a credibility contest. Justice David M. Paciocco proposes the approach that trial judges should take where there is conflicting evidence:

Proposition 2 - - A criminal trial is not a “credibility contest.” It is a trial to determine whether the Crown has proved the guilt of the accused on the specific charges alleged, beyond a reasonable doubt. It is, therefore, wrong to decide criminal cases where there is conflicting evidence about whether the accused is guilty, simply by deciding which version of events is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proved the guilt of the accused on the specific charges alleged, beyond a reasonable doubt: Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment, (2017) 22 Cdn Criminal LR 31 at p. 6.

[387]     The credibility of testimony in this trial will be impacted by evidence that materially confirms or contradicts a witness’s testimony.

[388]     With these considerations in mind, I agree with the submission of the accused that an appropriate starting point for the analysis of the evidence would be to determine whether or not the accused made a threat to Constable Sargent.

(b)   Did the Accused Threaten Constable Sargent?

[389]     Constable Karellas and Constable Sargent testified that the accused approached them while they were positioned in their police car on two occasions, demanding a cigarette.

[390]     Constable Sargent testified that on the second occasion, after he told the accused he did not have a cigarette, the accused threatened him, stating, “Give me the fucking cigarette or else I’ll fucking kill you.”

[391]     Constable Karellas testified that on the second occasion, after Constable Sargent told the accused he did not have a cigarette, the accused threatened him, stating, “I will fucking kill you if you do not give me a cigarette.”

[392]     I find that their evidence was largely harmonious concerning the events that took place leading up to, and including, the purported threat being made by the accused to Constable Sargent.

[393]     Both Constable Sargent and Constable Karellas were vigorously cross-examined by the accused in relation to events surrounding the purported threat. I do not find that their credibility and ultimate reliability with respect to those events were undermined by cross-examination.

[394]     I am satisfied that the Crown has established beyond a reasonable doubt that the accused threatened Constable Sargent.

(c)   Defence of Intoxication

[395]     Mr. Jeffery testified that in his opinion the accused would have had a BAC of 311 to 321 milligram percent at or around 1:45 AM on January 15, 2018.

[396]     He testified that in his opinion a 265-pound individual would have to consume anywhere between 19 to 19.2 bottles or cans of beer or 28.9 to 29.8 ounces of 40 proof alcohol to achieve that BAC.

[397]     He testified that in his opinion an individual with that BAC level would experience impairment of memory function, vision impairment, decreased inhibitions, confusion, impairment of motor functions and impairment of judgment.

[398]     Importantly, Mr. Jeffery’s opinions respecting the impacts on the condition of an individual with such an elevated BAC level would depend upon the individual’s tolerance to ethyl alcohol. Typically, an individual with that BAC level would be characterized as an “experienced drinker.”

[399]     The accused elected not to testify. That is his right. However, based only on the evidence and the opinions of Mr. Jeffery, I cannot determine what the accused’s tolerance to ethyl alcohol is, or whether he would be characterized as an experienced or inexperienced drinker.

[400]     I accept the evidence of Constable Karellas and Constable Sargent as credible and reliable in establishing that while the accused, in their opinion, was intoxicated, he nonetheless was able to walk to their police vehicle on two occasions and engage in conversation that, while belligerent in tone, was clear in content.

[401]     Mr. Foran testified that he observed the accused engaging in conversation with two individuals while sitting on a bench. He did not observe anything unusual.

[402]     Mr. Hryhorenko testified that he observed the accused standing outside the hostel for approximately half an hour smoking prior to the altercation between the accused and the VPD members.

[403]     I find that both Mr. Foran and Mr. Hryhorenko are independent witnesses. They both exercised care in their testimony to be as accurate as possible.

[404]     I accept their evidence as being both credible and reliable in relation to their observations that, prior to his altercation with Constable Sargent, the accused was able to sit, stand, smoke, socialize, walk and talk.

[405]     Absent speculation, I am unable to find that the accused’s level of intoxication might have impacted his intention to threaten Constable Sargent.

[406]     Alternatively, even if I was to find that the accused was extremely intoxicated, he is precluded from advancing self-induced extreme intoxication as a defence to a charge of violent criminality by operation of s. 33.1 of the Code: R. v. Chan, 2018 ONSC 3849, at paras. 46 – 48.

(d)   Was the Arrest Lawful?

[407]     I have found that the accused threatened Constable Sargent.

[408]     Constable Sargent testified that after the threat was made, he exited the passenger side of the police car to arrest the accused. At that point he described the accused as being in a “fighting stance” and stating, “Watch out, or I will fuck you up.”

[409]     Constable Sargent testified that he advised the accused that he was under arrest. In response, the accused stated, “No, I’m fucking not.”

[410]     Constable Karellas testified that after the accused threatened Constable Sargent, he exited the police car and told the accused that he was under arrest. To the best of her recollection, she heard the accused say, “No, I’m fucking not. I’m fucking not under arrest.”

[411]     I accept the testimony of Constable Sargent and Constable Karellas to be credible and reliable in establishing that subsequent to the threat made by the accused to Constable Sargent, there were reasonable grounds to arrest the accused. While there is a minor variation in their testimony as to what was said by Constable Sargent and the accused, I do not find that variation to be consequential to the issue of whether or not there was a lawful arrest.

[412]     The fact the accused was not told immediately by Constable Sargent that he was being arrested for threatening does not undermine the grounds for the arrest or affect the fact that a threat was made by the accused.

[413]     I am satisfied that the Crown has established that the arrest of the accused was lawful.

(e)   Was the Accused Aware that Constable Sargent was a Peace Officer?

[414]     The accused has submitted that his intoxication “may have impaired” his ability to recognize Constable Sargent as a peace officer.

[415]     Again, while I accept the opinions of Mr. Jeffery, those opinions do not establish the accused’s tolerance to ethyl alcohol, or whether he would be characterized as an experienced or inexperienced drinker.

[416]     I have previously accepted the evidence of Mr. Foran and Mr. Hryhorenko as being both credible and reliable in relation to their observations that, prior to his altercation with Constable Sargent, the accused was able to sit, stand, smoke, socialize, and talk.

[417]     Constable Sargent testified that he was a passenger in a marked police car with emergency lights engaged. Constable Karellas could not recall whether or not the emergency lights were engaged.

[418]     Both Constable Sargent and Constable Karellas testified that they were in standard issue VPD police uniforms with shoulder flashes identifying them as VPD members.

[419]     I am satisfied that prior to the altercation between the accused and Constable Sargent, the accused would have been able to observe the interior of the police car from the passenger side, including the shoulder flashes on Constable Sargent’s shoulder. Additionally, from that vantage point, the accused would have observed the functioning deployed laptop located in front of Constable Sargent.

[420]     Finally, after being told that he was under arrest, the accused stated, “No, I’m fucking not” or “No, I’m fucking not under arrest.” I infer from this statement that the accused was clearly aware that Constable Sargent was a peace officer.

[421]     In conclusion, I do not find that there is any persuasive evidence that the accused’s level of intoxication may have impaired his ability to recognize Constable Sargent as a peace officer.

(f)    What Caused Constable Karellas’s Injury?

[422]     In both her direct examination and cross-examination, Constable Karellas testified that the accused kicked her in the shin after he had been taken to the ground by Constable Sargent.

[423]     While he did not see any kick, Constable Sargent testified that he had taken the accused to the ground and was trying to gain control of him when he heard Constable Karellas scream in pain.

[424]     Constable Karellas testified in direct examination that she told Constable Dureau and Constable Sargent at the scene of the altercation that the accused had kicked her.

[425]     Constable Dureau testified that she did not make any inquiries of Constable Karellas at the scene of the altercation with respect to how she became injured because that was not a priority to her.

[426]     Constable Sargent testified that he was told by Constable Karellas at the VGH that the accused had kicked her.

[427]     Constable Karellas testified that when she was at the VGH, at one point her entire squad that evening was at her bedside, and she told her squad that the accused had kicked her leg and caused the break.

[428]     This testimony is not confirmatory of the fact that she was kicked, but rather confirmatory of what she said happened.

[429]     Constable Karellas was extensively cross-examined by the accused. She maintained throughout cross-examination that she was kicked by the accused and then collapsed beside the police car.

[430]     I do not find that Constable Karellas’s credibility was undermined by cross-examination. On this issue, I find Constable Karellas to be a credible witness.

[431]     Mr. Foran’s testimony respecting the events at the scene of the altercation between Constable Sargent and the accused differs significantly from that of Constable Karellas.

[432]     He testified that Constable Karellas was injured at the scene of the altercation, not from a kick delivered by the accused when he was on the ground with Constable Sargent over top of him, but rather when the accused, who appeared to be unbalanced, accidentally fell backwards on her as Constable Sargent was swinging him to the ground. The accused would not have seen Constable Karellas.

[433]     Constable Karellas corroborates Mr. Foran’s testimony that he first came to assist her before assisting Constable Sargent in securing the legs of the accused. Likewise, Sergeant MacKenzie corroborates Mr. Foran’s testimony that he secured the legs of the accused before handing that job over to Sergeant MacKenzie.

[434]     While Mr. Foran had consumed between two and four beers, I do not find that alcohol adversely affected his credibility. I find that he gave his evidence in both direct examination and cross-examination in a careful manner, trying to be as accurate as possible. He is an independent witness.

[435]     On this issue, I find that Mr. Foran is a credible witness.

[436]     Mr. Hryhorenko’s testimony respecting the events at the scene of the altercation between Constable Sargent and the accused differs significantly from that of both Constable Karellas and Mr. Foran.

[437]     He testified that it appeared to him that Constable Karellas was injured when the accused fell backwards on her when the police were trying to get the accused into a police vehicle. He testified that the events of that evening stood out for him because Constable Karellas, a small female police officer, was injured when the accused fell on her.

[438]     I find that that Constable Karellas sustained her injury prior to Constable Sargent radioing for a Code 3 response. Mr. Hryhorenko is simply wrong on this point.

[439]     It is likely that the reliability of Mr. Hryhorenko’s memory was impacted by the passage of time, as he was not interviewed until the late fall of 2018.

[440]     In relation to the reliability of the evidence of Constable Karellas, there is independent documentary evidence that contradicts her assertion that she was kicked.

[441]     The PCR notes that ambulance personnel arrived at the scene of the altercation at 2:00 AM, and that they were attending to Constable Karellas at 2:01 AM. In the PCR, Constable Karellas is identified as “Pt”, which I interpret as an abbreviation for the word “patient”.

[442]     Under the heading of “History of Chief Complaint” it is noted, “Pt was pursuing suspect when he jumped on her, taking her to the ground, landing on her leg. L Tib/fib #. No other injuries. Suspect was at least double the size of the PD member.”

[443]     Under the heading of “Examination”, Constable Karellas’s mental status is checked off as normal, and the record shows that she was oriented as to who she is, where she is and the time.

[444]     Constable Karellas has testified that she does not recall giving that history, and would not have done so, as she is convinced that the accused kicked her.

[445]     The Crown submits that the court ought to give little if any weight to the PCR, as it cannot be determined who actually gave the history information. In addition, the Crown submits that the scene of the altercation was chaotic, which “…totally hampered the EHS attendant’s ability to determine what happened to Constable Karellas”: Written Submissions at p.12.

[446]     There has been no evidence led at this trial that would support the Crown’s submission that EHS personnel were “totally hampered” at the scene of the altercation due to the surrounding chaos.

[447]     I take judicial notice that in British Columbia EHS personnel are highly trained and professional medical responders. EHS personnel routinely respond to emergencies that include some degree of chaos.

[448]     I expect that EHS personnel would exercise care in such situations to ensure they have the most accurate and reliable information to properly provide care for a patient in distress. It is their duty.

[449]     The information noted in the PCR is thorough and comprehensive.

[450]     I find that in this case it makes sense that the history contained in the PCR is history provided by Constable Karellas. It would be the most accurate and reliable information for EHS personnel to determine what had happened and what was immediately required by the patient.

[451]     An Emergency Nursing Assessment (the “ENA”) [Ex. 15] contains entries commencing with the arrival of Constable Karellas at 0225 hours. Similar to the PCR, there is a section on the first page identified as “History Leading to Admission.” The history notes that the “Pt got out of police car, by individual being pursued-fell on pt, pt landed on the ground sustain L tib-fib.”

[452]     On the same page, there is a section headed “Adverse Drug Reaction Clinical Decision Rule.” Contained within that section are specific questions concerning medications that the patient may be taking. The three posed questions were all answered in the negative by the patient.

[453]     The patient was asked whether or not she had any allergies. Her answer was “none.”

[454]     On the second page of the ENA there is a section headed “Substance Use”. Questions relating to the use of alcohol and or recreational drugs were all answered in the negative.

[455]     The information noted up in the ENA is thorough and comprehensive, with no evidence of any confusion.

[456]     I find that it makes sense that the history contained in the ENA is history provided by Constable Karellas. It would be the most accurate and reliable information for the medical staff at the VGH to determine what had happened and what was medically required by the patient.

[457]     The third page of the ENA had a section best described as a chart. Nursing notes reveal that at 0240 hours, Constable Karellas received five milligrams of morphine. At 0329 hours, Constable Karellas was conversing with other VPD members at her bedside.

[458]     I take judicial notice that morphine is a powerful prescription medication designed to alleviate pain. Morphine would also have a significant impact on an individual’s cognitive abilities. I find that the shock of what had taken place, in combination with the impact of the morphine, likely influenced Constable Karellas’s ability to reliably recall events of that evening when she was speaking with her team members at her bedside at the VGH.

[459]     There is a minor contradiction in the testimony of Mr. Foran. He assumed that Constable Karellas had exited from the front passenger door of the police car. The evidence is quite clear that Constable Karellas was the driver of the police car, so she would have exited from the driver side of the police car and come around the rear of the car to assist Constable Sargent.

[460]     It would make sense that Mr. Foran would be focused on the altercation between the accused and Constable Sargent, and not on Constable Karellas. He testified that he focused his attention on Constable Karellas after the accused fell backwards onto her and she collapsed against the side of the police car and went to the ground.

[461]     Mr. Foran was in a good visual position at the scene of the altercation to reliably observe events at the time Constable Karellas’s leg was broken.

[462]     The Crown did not lead any medical opinion evidence respecting the cause of Constable Karellas’s injury.

[463]     It must be kept in mind that the altercation between Constable Sargent and the accused was brief. Constable Sargent testified that it took no more than ten seconds to take the accused to the ground. It was night-time.

[464]     I find that Constable Karellas sustained her injury when she was either kicked by the accused, based on her version of events, or when the accused fell backwards onto her, based upon Mr. Foran’s version of events.

[465]     Constable Karellas, Constable Sargent, Mr. Foran and Mr. Hryhorenko were adamant in their testimony with respect to their recollection of events that unfolded at the time Constable Karellas’s leg was broken.

[466]     I find that Constable Karellas’s version of events and Mr. Foran’s version of events are the most plausible of the three versions.

[467]     If accepted as credible and reliable, Constable Karellas’s version of what took place at the scene of the altercation with the accused would plausibly establish that the accused’s conduct was consistent with an intention to assault her in both her professional and/or personal capacity.

[468]     If accepted as credible and reliable, Mr. Foran’s version of what took place at the scene of the altercation with the accused could plausibly establish that the accused’s conduct amounted to conduct inconsistent with an intention to assault Constable Karellas in either her professional and/or personal capacity.

VIII. DISPOSITION

[469]     To reconcile the two conflicting versions would require that the court embark on a credibility contest, pitting one version of events against the other version of events.

[470]     The decisive question to ask is whether or not, based upon the totality of the evidence, the Crown has proven the guilt of the accused on the specific charges alleged beyond a reasonable doubt.

[471]     I do not find that the Crown has met its burden of proof in relation to Counts 1, 2, 3, and 6 of the Information. Accordingly, I find the accused not guilty of those charges.

[472]     I have already found that the accused threatened Constable Sargent. I am satisfied that the Crown has established beyond a reasonable doubt that the accused threatened to cause death or bodily harm to Constable Sargent on January 15, 2018. Accordingly, I find the accused guilty of Count 5 of the Information.

[473]     I accept the evidence of Constable Sargent to be both credible and reliable in establishing that after he exited the police car, the accused was in a fighting stance.

[474]     I also accept the evidence of Constable Sargent to be both credible and reliable in establishing that when he grabbed the upper clothing of the accused to take him into custody, the accused responded by grabbing the front of Constable Sargent’s police jacket and then pushed Constable Sargent backwards.

[475]     The Crown has established beyond a reasonable doubt the elements of an assault required by s. 265(1) of the Code. Accordingly, I find the accused guilty of Count 4 of the Information.

 

 

___________________________

The Honourable Judge G. Rideout

Provincial Court of British Columbia

CORRIGENDUM – Released July 16, 2019

[1]           Paragraph 4, Count 6, should read:

Count 6: That he did unlawfully cause bodily harm to Pamela Karellas, contrary to s. 269 of the Code.

 

 

___________________________

The Honourable Judge G. Rideout

Provincial Court of British Columbia