IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The accused Cst. Tim Mason is charged on Nanaimo Court Information 88325-1 that:

[2]         The Information was sworn on October 8, 2020. The Crown proceeded summarily with the agreement of the Defence. The accused has pled not guilty to that charge.

[3]         The Trial in this matter was heard over eleven (11) Court sitting days with nine (9) witnesses in total that testified. There were also a total of thirty-three (33) Exhibits filed in this case. The Crown’s case against this accused commenced before me on November 16, 2021 and concluded on March 21, 2022. Following the conclusion of the Crown’s case, the Defence brought on an application for a directed verdict for a finding of not guilty. That application was dismissed with reasons delivered on April 11, 2022 and can be referenced at 2022 BCPC 67.

[4]         Subsequent to the dismissal of the Defence application for a directed verdict, the Defence elected to call evidence. Two witnesses were called, including the accused Cst. Mason, before argument was made on behalf of both the Defence and Crown.

[5]         At the conclusion of the evidence led and heard during this Trial, once again, Counsel for both the Defence and the Crown provided very thorough and helpful submissions both orally and in in writing. Collectively they also supplied twenty-two (22) case authorities which are set out in Appendix “A” of these reasons. Whilst some of those cases will be specifically referenced in these reasons, I have canvassed them all in coming to my decision in this matter.

[6]         Before deciding on the end result, I will briefly review the salient evidence and the applicable law as it pertains to the facts of this case.

[7]         The Crown called seven (7) witnesses in this case. They were as follows:

[8]         The Defence called two (2) witnesses in its case. They were as follows:

[9]         I do not propose to refer to all of the evidence of each witness for the purposes of this decision although I have carefully reviewed and considered each witnesses’ evidence prior to coming to my decision in this matter.

[10]      The accused, Cst. Tim Mason, was working on the date in question in full uniform as an R.C.M.P. member with the Nanaimo detachment when he responded in a request to deal with the complainant in this case, Ms. Emily Golobar. Ms. Golobar had been out celebrating her 19^th birthday when the Police were called for service by some of Ms. Golobar’s friends. Ms. Golobar’s friends were concerned for her safety and ultimately, the Police were dispatched to assist with those safety concerns. The concerns essentially related to Ms. Golobar being alone in the company of another male in the Extension area, which is a remote rural area of Nanaimo, whilst in an intoxicated condition.

[11]      After not an insignificant period of time in the early morning hours on the date in question, Cst. Mason tried to secure a safe place for Ms. Golobar to be placed due to her level of intoxication. At one point Ms. Golobar agreed to go back with her friends after being located by the Police but once back in their company at or inside their vehicle, Ms. Golobar became enraged at their concerns for her safety. Amongst other things, Ms. Golobar was observed to be yelling and throwing a cell phone immediately at or inside of the vehicle occupied by her friends.

[12]      As a consequence, Ms. Golobar was then arrested for being drunk in public and she was brought to the Nanaimo R.C.M.P. detachment for lodging into cells to sober up without charge. Cst. Mottishaw, a female member of the Nanaimo R.C.M.P., assisted Cst. Mason with the booking in process of Ms. Golobar. Ultimately, the complainant, Ms. Golobar was not cooperative in having her photograph taken in the booking in area by one of the civilian guards. The video evidence that has been filed in this case showed her interacting with various members at the detachment on the date in question. Unfortunately, for all concerned, there was no audio captured with that video evidence.

[13]      Ultimately, it was determined that the complainant would be lodged into a cell to sober up. Whilst going down a narrow hallway at the Nanaimo R.C.M.P. detachment the video evidence clearly shows Ms. Golobar attempting to take out the feet from the accused, Cst. Mason whilst Constables Mason and Mottishaw were guiding her down the hallway at the Nanaimo cellblock en-route to a cell. This hallway, as I am keenly aware from my years of practice in this City, is narrow (some 59 inches wide) and its walls are concrete blocks from floor to ceiling, with several sharp edges, and it has a concrete floor.

[14]      The complainant was previously described by Ms. Bird as highly agitated and upset, particularly towards Cst. Mason. Cst. Mottishaw also confirmed Ms. Golobar’s level of frustration but indicated that, in her view, Cst. Mason was being very patient and professional in his dealings throughout with Ms. Golobar. That being said Ms. Golobar was also described by Cst. Mottishaw as turning from actively resistant to assaultive whilst going down the hallway towards a cell.

[15]      As a result of the kick towards Cst. Mason by Ms. Golobar, Cst. Mason did a careful takedown of the complainant to the ground where, unfortunately for both Police officers, Ms. Golobar ended up onto her back with both hands and feet available.

[16]      It was at this point that Ms. Golobar struck out at Cst. Mason, striking him somewhere in the upper body or face area after several swings or punches were directed towards him. Cst. Mottishaw, as can be seen from the video evidence, was dealing with Ms. Golobar’s lower extremities and is seen struggling with controlling Ms. Golobar. Cst. Mason was dealing with Ms. Golobar’s upper extremities and also is also seen struggling with Ms. Golobar in the video evidence.

[17]      Ms. Golobar testified that she was frustrated with the Police in that she did not believe she had to be taken into custody after celebrating her birthday. She was also upset about the fact that she was not offered an opportunity to contact her mother whilst in Police custody. She also agreed that she was drunk to such an extent and that she would not want to be driving a car. She also testified that she advised the Independent Investigations Office (or IIO), and initially to this Court that, to an extent, she was acting like a belligerent drunk. However, later in her testimony she disagreed with that suggestion.

[18]      Ms. Golobar testified that prior to going to cells she was searched, which included having her bra removed. She also testified that she commenced civil proceedings against this accused in the Supreme Court of British Columbia and knew that this accused would be served with her lawsuit document during this Trial.

[19]      The complainant also denied she kicked Cst. Mason whilst en-route to cells. Instead, she testified that it looked as though she tried to turn herself around. When asked if she punched Cst. Mason in the face, her response was that she did not recall or remember.

[20]      Ms. Golobar also testified that she was struck by Cst. Mason after the takedown in the hallway which caused her significant injuries, including a fractured orbital bone. Cst. Mottishaw testified that although she did not see it, she heard the strike of Cst. Mason make contact with Ms. Golobar, described as the sound of a fist connecting with flesh. Cst. Mottishaw also testified that she assumed the punch was a forceful delivery because she could hear it connect with Ms. Golobar and that Cst. Mason is a fit, strong individual.

[21]      Once it was determined that Ms. Golobar was injured as a result of the strike by Cst. Mason, both Police members and others present in the Nanaimo R.C.M.P detachment then focused their attention in treating her injury with ice and paramedics were called. Ms. Golobar was transported to the Nanaimo Regional General Hospital for treatment of the injury and she was photographed by Cpl. Chaudry. That Police officer also photographed Cst. Mason’s right hand which was also treated at the hospital for an injury that required stitches.

[22]      Lastly, the Crown called retired Inspector Butler as an expert witness in the following areas:

[23]      Mr. Butler’s credentials were not contested to give expert evidence by the Defence in this case. Mr. Butler nevertheless opined that there was nothing he observed, in a brief review of video evidence submitted to him whilst in discussions with Crown counsel, which caused him any concern in Cst. Mason’s actions with the complainant in this case.

[24]      Mr. Butler testified that Cst. Mason would not have been prohibited in using the force that he did towards the complainant, including a strike to the head area. He also went over the Incident Management Intervention Model (the IMIM) with the Court as to R.C.M.P. training.

[25]      Mr. Butler was not shown the aforementioned video clip or clips from the series of incidents, nor any still images in Court whilst testifying before me in this Trial. He did, however, comment on the lack of any audio context into what transpired as well as the refresh rate of the video surveillance camera depicting the hallway as the complainant was being led to the cells.

[26]      Briefly, that is a review of the Crown’s evidence in this case against Cst. Mason save and except, and without repetition at this point, further evidence heard in this Trial will be referenced in the Crown’s submissions in this decision.

[27]      The Defence then briefly called the other civilian guard, Mr. Lines, who was working at the Nanaimo R.C.M.P. on the early morning hours on the date in question.

[28]      Mr. Lines, having dealt with hundreds of in custody accused persons over the approximate ten (10) years that he has served as a civilian guard with the Nanaimo R.C.M.P., testified he could not recall anyone as rude and as uncooperative as Ms. Golobar while she was in custody at the Nanaimo R.C.M.P. detachment on the date in question. Mr. Lines was flabbergasted at Ms. Golobar’s behaviour towards all persons present.

[29]      Mr. Lines also testified that he really felt Cst. Mason was trying his best to defuse the situation but it was not working. Mr. Lines did agree, however, that Ms. Golobar had a dislike to Cst. Mason and had no specific recollection of Ms. Golobar exhibiting symptoms of intoxication other than her continual tirade, a typical behaviour for intoxicated individuals according to Mr. Lines.

[30]      The accused, Cst. Mason then testified in his own defence.

[31]      Prior to graduating from the R.C.M.P. depot in Regina, Saskatchewan on July 21, 2008, the accused testified that he attended Simon Fraser University where he obtained a criminology degree in 2006.

[32]      After graduating from his R.C.M.P. depot training, the accused was originally posted to the Surrey detachment in the general duties section. He then worked with a team dealing with offenders at high risk to the community and transitioned to the strike force target team with larger serious crime projects. He then moved onto the major crimes unit in Surrey.

[33]      The accused testified that he has continually had annual training regarding the IMIM and, in 2015, he himself became a use of force instructor with the R.C.M.P.

[34]      In July 2018 the accused was transferred to the Nanaimo R.C.M.P. where he worked in general duties until September 2019. Since September 2019 the accused has worked with the serious crime unit.

[35]      The accused then gave a detailed narrative of his dealings with Ms. Golobar on the night in question.

[36]      Briefly, on December 1, 2018, the accused was working a night shift in full uniform driving a marked Police SUV. The accused testified that a dispatch came over the radio regarding a possible sexual assault in progress in the Extension area. Because it was an unusual and serious type of call, he volunteered to attend.

[37]      He testified that he attended to the area to try and locate Ms. Golobar, the individual whom the initial complaint came in about from some of her friends. Eventually, after some period of time working in tandem with Cst. Jay Smith of the Nanaimo R.C.M.P, along with Ms. Golobar’s friends, she was located at the residence with a male present named Nigel.

[38]      Cst. Mason indicated that immediately upon speaking with Ms. Golobar she was argumentative and upset with him and her friend Harley, and other friends, for having phoned the Police. The accused further testified that he was trying to de-escalate her anger and to reassure her and calm her down as she was quite upset. He also advised that she did not need to come with him but wanted to speak with her. Cst. Mason then arranged for her to sit in the backseat have his Police SUV and went around the corner to try and find out a little bit more about how she could be placed safely.

[39]      The accused also testified that Ms. Golobar wanted to be dropped off on Jingle Pot Road but could not provide the officer with an address. He did manage to find out that she was from Campbell River. As a consequence he drove over to the Extension Elementary School where Ms. Golobar’s friends were and where Cst. Jay Smith was.

[40]      Cst. Mason testified that Ms. Golobar’s friends were prepared to take her into their care. As a consequence, he walked with Ms. Golobar over to her friends’ vehicle. He then testified immediately as she got into her friends’ vehicle she started screaming at them. The next thing he knew, Ms. Golobar had grabbed her friend Harley’s phone from her hand and threw it and it went smashing through the cab and he heard screaming.

[41]      Cst. Mason also testified that he also noticed that Ms. Golobar was holding the door handle so it would not latch to the vehicle. Ms. Golobar was slamming the door continually and then he noticed that Harley was screaming in the back seat to get Ms. Golobar out. Before the accused could even do anything, Ms. Golobar left the vehicle herself and started walking away from it. He then noticed that Cst. Jay Smith come up to Ms. Golobar and advised her that she was under arrest for being drunk in public. Despite Ms. Golobar’s relatively small stature, it took Cst. Jay Smith, described earlier in this accused’s testimony as 5 foot 11, 230 pounds (basically a farm boy type--someone who is a really big, strong and confident Police officer) along with himself to control Ms. Golobar. The accused testified that he and Cst. Smith struggled to get her under control to place handcuffs on her given her active resistance. Cst. Mason described using a physical control soft technique, known as an arm bar, to pull her onto the ground and there he was able to quickly handcuff her. Ultimately, Cst. Mason Chartered and Warned her from memory and Ms. Golobar was placed in the rear of Cst. Mason’s Police SUV.

[42]      Ms. Golobar was then taken to the Nanaimo R.C.M.P. detachment. Cst. Mason had arranged for a female officer, Cst. Mottishaw, to meet them in the cellblock area. The accused noted en-route to the detachment, Ms. Golobar was continually asking why she had been arrested, where they were going and could she go home. He also testified that he explained over and over to her that she been arrested, what she been arrested for and that she would be held without charge for her own safety until she was sober in the morning.

[43]      Upon searching the complainant’s purse he located at least eight (8) cans of beer. Cst. Mason also testified that he noticed a painful injury to his left pinky finger and noticed cuts on his index finger near his knuckle on his right hand in his dealings up to this point with the complainant.

[44]      The accused then testified about the number of difficulties the complainant had at the detachment and her non-compliance with Police officer requests, including the taking of her photograph. As a consequence, was determined to forgo taking the photographs until the morning and the officer testified he was just trying to do his best to stay out of her way and let Cst. Mottishaw try and deal with Ms. Golobar. However, his evidence was that did not change the demeanor of the complainant whatsoever.

[45]      Cst. Mason testified that he was calm in trying to engage with her at all times throughout the evening and felt as if the complainant was trying to engage with the Police into a verbal altercation. He testified that he has dealt with lots of angry people in his service as a Police officer as well as with many intoxicated individuals. Moreover, he testified that it did not really bother him if persons are angry or confrontational, including this complainant Ms. Golobar.

[46]      As a consequence, both Cst. Mottishaw and this accused began escorting Ms. Golobar to a cell in order to sober up. Whilst en-route to the cell the accused testified that Ms. Golobar went from being actively resistant to assaultive and that she kicked out at him. As a consequence she was carefully brought to the ground noting the conditions and narrow hallway that is completely surrounded by concrete on all sides.

[47]      Once at the ground unfortunately for both officers, Ms. Golobar was on her back and had her hands and feet available to her. This officer testified that he was punched on his chin which came very quickly from Ms. Golobar’s right hand. Immediately he responded with an instinctual reflexive punch with his left hand, his non-dominant hand, from his knees. He testified it was not an aimed punch but the intention was to stop her behaviour because her assaultive behaviour was escalating. He testified he needed to stop the behaviour at that point or the situation was going to get worse as her assaultive behaviour was escalating from a kick to a continued fight on the ground.

[48]      He believed the strike to her landed somewhere around her forehead once he noted no muscle tone and her behaviour had subsided. He testified the punch was effective in what it was intended to do, namely stopping her assaultive behaviour.

[49]      The accused then testified that Ms. Golobar was looking down with her hair in a mess whereupon he testified she said to him “why did you punch me?” And he testified he responded, “you punched me.” Then Ms. Golobar advised him “why you threw me on the ground.” Whereupon this accused testified he then responded “well you kicked me.”

[50]      Cst. Mason testified he then noticed blood started dripping onto the ground coming from her facial area so they tried to brush her hair out of the way so they could assess the injury whereupon this accused testified Ms. Golobar advised him “don’t touch me, I don’t like you.” Cst. Mottishaw then took over the assessment of Ms. Golobar. He testified they asked the guards for paper towel and an ice pack. Cst. Mason could then see that there was a cut coming from over Ms. Golobar’s left eye so he arranged for a supervisor to be called along with an ambulance.

[51]      Lastly, in terms of the punch that was delivered by this accused, he testified that it was not aimed anywhere in particular, nor was it thrown to hurt her. He also testified he had concerns about his safety and the safety of Cst. Mottishaw.

[52]      Briefly, that is a review of the Defence evidence this Court heard in this Trial save and except, and without repetition at this point, further evidence heard in this Trial will be referenced in the Defence submissions in this decision.

[53]      The Crown must prove this accused’s guilt beyond a reasonable doubt on the single count with which he is charged. I am mindful that that is not proof beyond certainty. As well, a criminal Trial is not a credibility contest. Where there are competing versions of the evidence between critical witnesses, the analysis does not come down to picking a version. It is open to a trier of fact to accept all, some, or none of a witness’ evidence. When an accused testifies, as he did in this case, the effect of his evidence on the case was set out in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Simply put, W.D. requires triers of fact to consider whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt (see R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788).

[54]      Accordingly, in accordance with the ruling by the Supreme Court of Canada in (R. v. W.(D.) (1991) 1991 CanLII 93 (SCC), 1 SCR 742 at 757, I instruct myself on the following basis:

[55]      Both credibility and reliability are important factors in this case. However, it must be remembered that the accused is presumed to be innocent of this charge until and unless all of the essential elements of the offence have been proven by the Crown beyond a reasonable doubt. The accused need not prove anything. The onus rests on the Crown throughout to prove this accused is guilty beyond a reasonable doubt for the single count with which he is charged. This also includes negativing any section 25 or 34 defence that is proffered, as in the case at bar.

[56]      The definition of assault is set out in section 265 of the Criminal Code. It states as follows:

[57]      Bodily Harm is defined as follows in section 2 of the Criminal Code:

[58]      So in the end has the Crown proven beyond a reasonable doubt that the accused committed the offence of assault causing bodily harm on the complainant, Emily Golobar, considering the whole of the evidence?

[59]      The Crown conceded that there is an air of reality to a defence under section 25 of the Criminal Code in the case at bar. As a result, the Crown also conceded that it bears the onus of disproving the defence beyond a reasonable doubt.

[60]      While the Crown does not argue that Ms. Golobar’s arrest was unlawful, the Crown does rely on the circumstances leading to Ms. Golobar’s arrest and detention in police custody to explain her behaviour. The Crown argued this was a circumstance where Ms. Golobar had no intention to be intoxicated in a public place. In the circumstances, Ms. Golobar’s continued objection to her arrest was understandable. Furthermore, while Cst. Mason may have had Ms. Golobar’s safety in mind, she was angry at the Police for her arrest and detention and for not being allowed to speak to her mother.

[61]      While Ms. Golobar’s anger was understandable, it is uncontested the Crown argued, as was readily conceded by Ms. Golobar, that her behaviour towards Police on the date in question was unenviable. The Crown also agreed the Police officers do not, and should not, expect to be assaulted while at work. However, while this is true, the fact that a Police officer acting in the course of their lawful duties is assaulted, does not mean any response that assault, no matter the level of forced use, will be justified by section 25.

[62]      The Crown further argued that in all cases a Police officer’s use of force must be reasonable, necessary and proportionate in the circumstances.

[63]      Ms. Golobar, the Crown argued, was a petite young female who did not pose any serious risk of harm to Police. The Crown further argued that the actions of two trained Police officers were underway that would allow them to quickly gain control over the complainant thereby eliminating the risk of further assaults. Here, while resort to some level of force by Cst. Mason to gain control and prevent any further assaultive behaviour by Ms. Golobar was reasonable, the force employed by Cst. Mason for this purpose, a forceful strike to her face, striking her left eye, was excessive in the circumstances.

[64]      In reviewing the evidence that could reasonably support a conviction, the Crown argued that the evidence in this case, if believed, established that Cst. Mason struck Ms. Golobar in the area of her left eye and that she did not consent to the application of that force. In the circumstances, reasonable person would have been aware that there is a risk that she could have suffered bodily harm as a result of being struck in the face.

[65]      The Crown argued there is relevant evidence on this point which provides evidence in all the essential elements that could reasonably support a conviction in this matter as follows:

[66]      Moreover, the Crown argued that as Cpl. Chaudry testified, had he been aware the seriousness of this injury, he would have referred the matter to his supervisors and likely the IIO. Thus the Crown also argued these undisputed facts easily establish the injuries caused by Cst. Mason’s punch meet the definition of bodily harm.

[67]      The Crown argued the evidence established in this case showed Cst. Mason’s punch was directed to the area of Ms. Golobar’s head. This is seen in the video conceded by Cst. Mason in cross-examination. This is not a case were Cst. Mason struck an unintended target. The Crown argued he directed a strike at Ms. Golobar’s head. Therefore, a serious facial injury was a foreseeable result of this purposeful action.

[68]      While not conceded by Cst. Mason, Crown argued the only reasonable inference from the evidence is that the strike that was delivered to Ms. Golobar was delivered with considerable force. This the Crown argued comes from several sources including:

[69]      The Crown further argued the analysis of whether Cst. Mason’s action of punching Ms. Golobar was justified under section 25 must be based on what Cst. Mason saw and heard and how this factored into his decision to take the actions he did. The evidence of what other witnesses saw and heard is only relevant in so far as it supports or contradicts that of Cst. Mason.

[70]      The Crown further argued in this respect it must be stressed that a determination of whether Cst. Mason’s actions are justified under section 25 cannot be premised on the perceptions of other persons or on what those persons might have done in Cst. Mason’s shoes. Thus, Cst. Mottishaw’s perceptions of events or her perceptions are irrelevant.

[71]      The Crown argued the evidence in this case as to what happened in the cellblock of the Nanaimo R.C.M.P. detachment that evening was not seriously in dispute. The Crown argued the overall sequence of events are depicted in the video evidence. The sequence of events was confirmed by all witnesses.

[72]      The Crown conceded the obvious frailties in the video evidence in this case. Based on the frailties of the video evidence, the Crown does not ask this Court to draw any conclusions about the speed or force of the punch from the video. Conclusions on these points may be supported by the video but can only be established based on other evidence heard at Trial.

[73]      The Crown also argued the evidence confirms that, up to the takedown in the cells, Cst. Mason dealt with Ms. Golobar in a calm and professional manner. However, Ms. Golobar’s behaviour did escalate when the Constables began walking her to cells. Ms. Golobar agreed that her level of resistance as she was moved toward cells was a seven (7) out of ten (10).

[74]      It was also argued by the Crown that although Ms. Golobar did not recall punching Cst. Mason, she does know that she was punched. She believes she suffered this injury when she was taken to the ground. Thus, the Crown argued this absence of recollection is not consistent with a lapse of memory due to inebriation but by the fact she suffered a blow to the head.

[75]      The Crown also argued that Cst. Mottishaw was a very reliable witness. The Crown argued she gave her testimony with great consideration and care. Her clear recollection was that she heard Cst. Mason utter words to the effect of “you don’t punch me” or “don’t punch me” in proximity to the striking of Ms. Golobar.

[76]      The Crown’s primary position is that Cst. Mason’s positioning as viewed in the video is not consistent with him using his left arm to strike Ms. Golobar. Likewise, the injuries sustained, is not consistent with this movement (the angle of the cut). Both, the Crown argued, are consistent with the strike coming from Cst. Mason’s right hand. The Crown submitted that this was best viewed from the video stills filed as Exhibit 21 in this proceeding.

[77]      In relation to credibility of Ms. Golobar, the Crown argued that she readily admitted that she was not in her best state in the early morning hours of December 2, 2018. She readily admitted she was intoxicated, tired and angry about the involvement of the Police. She readily admitted she was rude and uncooperative with the Police. She did not believe she should be in Police custody. She was scared and suffering from severe anxiety. She wanted to call her mother and wanted to be taken to her. Thus, the Crown argued all this is entirely understandable.

[78]      The Crown argued that Ms. Golobar gave her evidence in a straightforward manner. She was very clear but what she did and did not recall and she readily conceded when her current recollection differed from the video. Prior to being taken to the ground, she has a clear memory of the events leading up to that point. She at no time attempted to exaggerate her evidence and told the Court what she remembered. This included an admission that she may have punched the officer.

[79]      In relation to Cst. Mason, the Crown argued that he demonstrated a tendency to put himself in the best light. On some points the Crown argued this tendency established errors in his recollection that are contradicted by other evidence in the case. The principal error related to the mechanics of the punch he delivered. The second to when, and how many times, he stated words to Ms. Golobar explaining why he punched her.

[80]      In relation to the law on reasonable doubt, including section 25 of the Criminal Code, the Crown argued the seminal case dealing with principles in play in a section 25 defence is R. v. Nasogaluak, (2010) SCC 6. Paragraph 32 LeBel J sets out the principles underlying section 25 as follows:

[81]      Thus, the Crown argued the Court in Nasogaluak explains that section 25(1) essentially provides that a Police officer is justified in using force to affect an arrest provided:

[82]      In terms of self-defence under section 34(1), all three (3) criteria under section 34(1) must be present for the defence to be available. The defence applies unless the Crown disproves beyond a reasonable doubt one or more of these criteria. Each element has its own standard of assessment. Overall, the test contains objective and subjective elements. The elements are:

[83]      In the case of both section 25 and section 34, the Crown argued that it bears the onus of proof beyond a reasonable doubt that the justification provisions are not applicable. In order to disprove the defence, the Crown is only required to prove that any one of the elements is not established. To secure an acquittal, an accused person is only required to raise a reasonable doubt as to whether the defence is available on the evidence.

[84]      Both under section 25(1) and 34, the force used by a Police officer must be reasonable in the circumstances. The assessment of the overall reasonableness requires a consideration whether the force used was necessary and proportionate in the circumstances. To that end at paragraph 32 in R. v. Power, 2016 SKCA 29 the Crown referred to the following paragraph:

[85]      In terms of the use of expert evidence in a section 25 reasonableness assessment, the Crown argued one fact a trier of fact may consider is whether the use of force was in line with Police training. (see: Berntt v. City of Vancouver, (1999) 1999 BCCA 345 (CanLII), B.C.J. No. 1257 at para 25, and 34-35).

[86]      The Crown also argued that while expert evidence of this nature is both relevant and necessary in many cases considering a defence under section 25, it is evidence that must be approached with caution. This particularly is true where, as in the case at bar, the opinion provided touches on, or overlaps with, the ultimate issue before the Court thereby creating a risk that the expert may usurp the role of the trier of fact.

[87]      In this case the Crown argued it called expert evidence to ensure the Court had the necessary framework of how Police are trained. A conclusion that Cst. Mason’s actions were in line with Police training is one relevant factor to consider. However, it is not the end of the inquiry. Even if in line with training the actions the Court must conclude, from a purely objective standpoint, is that the action was both necessary and proportionate in the circumstances to respond to the threat posed.

[88]      The proportionality requirement, i.e. a determination of whether the response of force was no more than necessary in the circumstances, must be assessed using an objective test only. This test requires trier of fact to consider whether, from the perspective of a reasonable person in the circumstances of the accused, there is an air of reality to the offender’s claim that the force used was no more than necessary given the nature and quality of both the threat and the responsive force. (see: R. v. Power, supra, at para 34 and 35).

[89]      Ultimately, the Crown conceded that based on Ms. Golobar’s actions once on the ground in the Nanaimo R.C.M.P. cellblock, some force was necessary to gain control of her. However, the Crown argued the level of force used here, a forceful strike to ultimately her left eye, was not necessary for this purpose.

[90]      Moreover, the Crown argued that Cst. Mason was aware, or otherwise was reckless, that any strike to Ms. Golobar directed at her head or her face was likely to cause serious injuries. The Crown argued other options there were not likely to cause serious injury were readily available.

[91]      In the end, the Crown argued that Cst. Mason’s subjectively held belief is not objectively reasonable in all the circumstances in this case and urged this Court to make such a finding.

[92]      The accused, Cst. Mason, argued that the Crown has failed to adduce evidence negativing Cst. Mason’s defences under both section 25 and 34 of the Criminal Code to the criminal standard of beyond a reasonable doubt.

[93]      The Defence argued that in the Crown’s own opening, at issue was whether Cst. Mason’s use of force was reasonable, as it is required to be, pursuant to sections 25 and 34 of the Criminal Code. Thus, the Crown must prove beyond a reasonable doubt that Cst. Mason’s use of force was not justified or reasonable such that defences afforded to him under section 25 and 34 the Criminal Code are negatived.

[94]      The Defence also argued that throughout the course of the evidence during Trial, there has been evidence that showed that Cst. Mason’s use of force against Ms. Golobar was proportional, necessary and reasonable thus affording Cst. Mason the defences of justification under sections 25 and 34 of the Criminal Code.

[95]      The evidence at Trial showed that Cst. Mason was assaulted by the complainant whilst in cells. He was kicked and punched. In response, he delivered a single instinctive and reactionary punch back to Ms. Golobar. The punch was reactionary such that Cst. Mason was not aiming for a particular area on Ms. Golobar. He was simply acting in response to being punched in self-defence of himself and Cst. Mottishaw.

[96]      Some words occurred in close proximity to the punch from Cst. Mason. Cst. Mason’s evidence was that he was informed by Ms. Golobar after the punch that he punched her. Cst. Mason explained it was because he was punched, and that he took her to the ground because she kicked him.

[97]      The Defence also argued that the video is not fit for the purpose of’ showing the impact which caused Ms. Golobar’s injury. That being said, Cst. Mason believes he punched Ms. Golobar in the forehead area with his non-dominant left hand.

[98]      With respect to Police training, Police use of force and use of force models, the Crown’s expert Mr. Butler testified that he was familiar with the R.C.M.P. Incident Management Intervention Model (the IMIM) which guides officers in the appropriate use of force.

[99]      When a subject is displaying behaviour that is classified as active resistant, an officer is entitled to use physical control soft techniques, such as pain compliance, open strikes, and strikes with lower velocity. Examples of active resistance include walking away, not listening to officer commands, muscle tensing, and pulling away from an officer.

[100]   However, when the subject is displaying assaultive behaviour, an officer is entitled to use physical control hard techniques which includes hard strikes to anywhere at the subject’s body at high velocity, and the use of intermediate weapons including a Police baton, a taser, and OC spray. Officer training is to intervene so that the assaultive behaviour immediately stops, as assaultive behaviour presents a risk of injury to the officer and the subject himself. Officer training dictates that dominating force should be used so the assaultive incident stops as quickly as possible.

[101]   Assaultive behaviour includes things such as kicking and punching. When a person is displaying this assaultive behaviour, officers ideally want to control the subject face down on the ground as if they are on the back they can therefore use their two (2) weapons, their hands and feet.

[102]   The Defence argued that the size of an individual is just one factor for an officer to consider. In Mr. Butler’s experience, a smaller individual who is committed to fighting an officer is often quite difficult to control and may be resistant to pain compliance.

[103]   Moreover, Police officers are not trained to use the least amount of force necessary as they do not know what the least amount of force required is to control an individual. This is why the IMIM provides a bandwidth of proportionate force options. Officers are to use force within the requisite bandwidth.

[104]   Moreover the Defence argued that if an officer is struck and the blow is glancing, the officer cannot assume that the second blow will also be trifling. The officer is trained to use as much force is necessary to end the violent confrontation; this may include a strike much harder than what the officer received.

[105]   The Defence also argued that violent incidents are dynamic situations. There may be occasions when an officer lands a strike somewhat different where they intended to do so because the subject and the officer are both moving.

[106]   The Defence highlighted the fact that Mr. Butler viewed two (2) videos over the internet in a remote meeting with Crown counsel. Nothing he saw in the video was inappropriate or not commensurate with R.C.M.P. training.

[107]   Furthermore, the Defence argued that Police officers are taught to strike reflexively when they are struck. This is especially so when the subject who strikes the officer is in close range to the officer.

[108]   To that end, Police officers are taught that action always beats reaction, which is Police officers are unlikely going to be able to dodge strikes thrown at them, especially in close range. This is because of the reaction time required to respond to a close-range strike is often slower than the strike itself.

[109]   The Defence stressed the fact that latitude is to be given to Police officers in violently unfolding incidents, even to the point of misjudging the amount of force necessary.

[110]   In the case at bar, when faced with the assaultive behaviour of the complainant, the Defence argued that Cst. Mason would have been justified in using hard strikes or any intermediate weapon if he would properly articulate why it was used. In this particular scenario, given the dynamics in close range of the assaultive subject, Ms. Golobar, a hard strike was the most reasonable force option available to Cst. Mason. The use of a baton, a taser, or OC spray would not have been possible or would have been difficult to justify as reasonable in the circumstances.

[111]   Further to the assumed facts read into the record and filed as Exhibit 33 in this Trial putting the Crown’s case at its highest, Mr. Butler agreed that the strike used by Cst. Mason appeared to be reflexive. It appeared to be an appropriate response based on what he saw on the video and that it was consistent with the principles of training and the IMIM. That is, a single physical control hard strike to stop the assaultive behaviour that could endanger the subject and the officers.

[112]   To that end, when Police officers encounter assaultive behaviour, they are entitled to use force to control the individual exhibiting such assaultive behaviour. Such force would include closed fist strikes. As such, the Defence argued that the Crown has not garnered any evidence to demonstrate that a single punch was unjustified, which it is ultimately obliged to negative beyond a reasonable doubt.

[113]   In addition, the Defence argued that, in the case at bar, the factors for a section 25 defence are met on the evidence in this Trial. That is, the use of force employed by Cst. Mason was proportionate and reasonable. It was in accordance with his training and was necessary to stop the assaultive behaviour that was of a danger to him and Cst. Mottishaw, who was under his protection at that moment. The Defence further argued that Cst. Mason’s belief that he was in danger as a result of Ms. Golobar’s assaultive behaviour is both subjectively and objectively reasonable, especially when coupled with the evidence of Mr. Butler. 

[114]   In short, the Defence argued that Cst. Mason only used as much force as necessary, a single reactionary strike with his non-dominant left hand, which immediately stopped the assaultive behaviour of the complainant, Ms. Golobar. Whilst the consequences to Ms. Golobar were unfortunate, they cannot be considered in this analysis according to the Defence. Cst. Mason merely wanted to end the assaultive behaviour he had been enduring for some time. He was successful in so doing. He did not direct his punch anywhere in particular, it just happened to land on Ms. Golobar’s head area during a dynamic fast-moving situation where neither party was stationary.

[115]   Importantly, the Defence argued that no witness has been able to articulate a single response of lesser force that would have been reasonable in the circumstances. To that end, in a similar case, R. v. Unrau, 2021 BCPC 100 an officer was acquitted for use of force when he brought a handcuffed prisoner to the ground in cells. The accused subjectively believed that the prisoner was threatening him and going to assault him in some fashion. In bringing the prisoner to the ground, the prisoner hit his head on the booking counter and injured it requiring treatment at the hospital. In circumstances where an officer has not yet been assaulted and causes a serious head injury to a handcuffed accused, the officer’s use of force was found to be within the permissible confines of section 25. Thus, in this lesser case at bar, wherein Cst. Mason was actually assaulted, his actions must be judged as reasonable and within the purview section 25.

[116]   In considering the factors pursuant to section 34(2) of the Criminal Code, the Defence argued they too must be weighed in Cst. Mason’s favour in this case. To that end the Defence highlighted the following:

[117]   Thus, the Defence submitted that the evidence adduced in the Crown case showed that Cst. Mason properly applied force in accordance with the defences of section 25 and 34 the Criminal Code. The single strike delivered was in accordance with his training and was a reasonable response to stopping the assaultive behaviour he encountered. The evidence suggests that once a single strike was delivered, the assaultive behaviour did indeed stop, leading credence to the reasonableness of the force used.

[118]   In the end, the Defence strongly argued that the Crown failed to adduce evidence to negative Cst. Mason’s defences pursuant to section 25 and 34 of the Criminal Code beyond a reasonable doubt. As such, a conviction cannot follow.    

[119]   The main issue in this case is whether the punch delivered by Cst. Mason can be justified under s. 25 and/or 34 of the Criminal Code.

[120]   The Crown has not argued that Ms. Golobar’s arrest was unlawful. Moreover, the Crown conceded that up to the takedown in cells, Cst. Mason dealt with Ms. Golobar in a calm and professional manner.

[121]   I also have no difficulty in finding, nor was it argued by the Defence, that the injuries Ms. Golobar sustained, meet the definition of bodily harm pursuant to the Criminal Code.

[122]   However, the Crown relied on the photographs of the diagonal cut to Ms. Golobar’s eyebrow is set out in Exhibit 1 to support the proposition that Cst. Mason struck Ms. Golobar with his right hand. I agree with the Defence that there is insufficient evidence to support this inference. It would be pure speculation to do so without evidence led to show that a cut of that nature could only occur from a right-handed punch. I also note that the video evidence is not capable of showing the positioning of Ms. Golobar’s head at the time of the impact, nor does it show the actual point of impact.

[123]   Moreover, I also agree with the Defence position that the only plausible inference to be drawn on the video evidence is that Cst. Mason punched with his left hand. The video clearly shows a punchy motion with Cst. Mason’s left hand. The individual frames shown to Cst. Mason in cross-examination with respect to using his right hand show Cst. Mason’s forearm landing on the ground near Ms. Golobar. Further frames put to Cst. Mason also show his feet in the air as he was falling forward. I note that Cst. Mason confirmed this during cross-examination. Therefore, the most logical inference is that Cst. Mason was stabilizing his body weight with his right arm.

[124]   There is no doubt that there was a single punch thrown by Cst. Mason on the evidence heard in this Trial. If the Crown’s theory is that there was no left-handed punch, and only a single right-handed punch, this is not captured by the video and would be contrary to the evidence of both Cst. Mason and Susan Bird.

[125]   The Crown relied heavily on the still frames found at Exhibit 21 and invited the Court to carefully look at still frames 194 – 200 in drawing the conclusions to which hand hit Ms. Golobar. With respect, as stated by Mr. McKay, the video is not fit for the purpose of showing the point of impact of either Cst. Mason’s left or right hand. Thus, this frame by frame analysis is of limited utility and cannot ultimately show, beyond a reasonable doubt, that Cst. Mason struck Ms. Golobar with his right hand.

[126]   However, that is not the end of the matter.

[127]   Cst. Mason has admitted to the actus reus of a left-handed punch. That being said, the Crown has admitted that the actions of Cst. Mason were subjectively reasonable and proportionate. Thus, the Crown bears the burden of proving, beyond a reasonable doubt, that Cst. Mason’s actions were not objectively reasonable. Mr. Butler’s evidence was the force used was reasonable, proportionate and in accordance with Cst. Mason’s training. I respect that opinion but ultimately, the final determination on this issue remains the function of this Court. I also acknowledge Cst. Mottishaw’s evidence as to what she would have done if punched by Ms. Golobar. However, in my view, what she would have done is irrelevant to the ultimate issue as to what this Court must decide.

[128]   In relation to the complainant, Ms. Golobar, whilst I accept that she sustained significant injuries at the Nanaimo R.C.M.P. detachment, I am not satisfied she was being full and frank with the Court as to the nature of those injuries as compared to her Notice of Civil Claim filed as Exhibit 27 in this proceeding. In my view, although she was asked to confirm that she reviewed that document, prepared by her legal counsel, before its ultimate filing on November 30, 2020 in Campbell River Supreme Court, the injuries that are set out in that civil document go far and above the actual injuries she sustained whilst in the care of Cst. Mason.

[129]   Ms. Golobar’s Notice of Civil Claim alleges that she suffered a broken jaw whilst in Police custody. Moreover, it also falsely states that she spent the night in R.C.M.P. cells before attending at the Nanaimo Regional General Hospital for treatment for her injuries. Furthermore, Ms. Golobar falsely claimed in her evidence in this Trial that:

[130]   Notwithstanding these concerns, I agree with the Crown that it is the duty of the investigating Police officer to ensure the safety of any accused or detained person whilst in Police cells. However, Ms. Golobar also went on to testify that she had a limited memory, which no doubt comes down to some of the injuries she sustained but also may very well be due to her level of intoxication by alcohol on the date in question.

[131]   That being said, with respect to how this accused was dealt with overall by Cst. Mason, particularly whilst Ms. Golobar was in the Nanaimo R.C.M.P. cells, I accept the evidence of not only Ms. Bird, Cst. Mottishaw and Mr. Lines, but the accused himself. I accept that this accused had a great deal of patience in dealing with this complainant on the date in question. I accept it was no doubt a frustrating experience in dealing with the complainant Ms. Golobar, but at no time do I accept that Cst. Mason lost control over his emotions.

[132]   I also note this accused has also been entrusted within the R.C.M.P. as a use of force trainer and has mentored other younger Police officers throughout his career, which has seen him be the recipient of several officer in charge awards.

[133]   Having carefully both observed and heard this accused testify in this Trial, I must state that I was impressed with his candour and, without hesitation, can say that his credibility was not at all challenged in cross-examination. At no point did the accused embellish or exaggerate his evidence whilst testifying. Moreover, I found him to be a reliable and compelling witness when giving his explanations for his interactions with Ms. Golobar during the early morning hours of December 2, 2018.

[134]   I cannot find that Cst. Mason modified his recollection and his evidence harmonizes, for the most part, with the evidence of other witnesses who were at the scene, as well as the documentary evidence in this case. I accept the accused’s evidence that words were exchanged with the complainant, Ms. Golobar, on one occasion, after the punch was delivered by Cst. Mason. Accordingly, his testimony I find was not unreasonable, impossible or unlikely (see: Bradshaw v Stenner, 2010 BCSC 1398 at paras 186-187).

[135]   In my view, on the specific facts of this case, this was a dynamic, unfolding situation where Ms. Golobar had been belligerent, argumentative and was determined not to cooperate given she was refused an opportunity to phone her mother. I also find that this young, albeit fairly small, female complainant was highly motivated not to be held in custody. From the booking in area of the Nanaimo R.C.M.P. detachment en route to cells, I accept Ms. Golobar’s behaviour moved beyond passive and actively resistant to being clearly assaultive.

[136]   To that end, I also accept that Ms. Golobar kicked out at Cst. Mason causing him to stumble and partially lose his balance in the narrow hallway. As can also be seen from the video, both Constables Mason and Mottishaw struggled with Ms. Golobar notwithstanding the complainant’s physical stature. Furthermore, I also accept this accused was punched in the chin before returning a punch, instinctively and reflexively with his non-dominant left hand. I accept the accused’s explanation in his testimony as to his response when punched by Ms. Golobar on his chin. Cst. Mason’s response was completely understandable and, in my view, was also proportionate and reasonable in the circumstances to protect himself from being further assaulted by Ms. Golobar.

[137]   I also accept the accused’s evidence that his instinctive and reflexive strike was not intended at any particular area on the complainant, nor was it intended to cause any harm to her. Moreover, I cannot find that that Cst. Mason was reckless specifically with that single strike to Ms. Golobar nor can I find that the end result was foreseeable by him.

[138]    Despite his and Cst. Mottishaw’s struggle with Ms. Golobar, I accept this accused’s testimony that the option he chose, in the circumstances he found himself in, was both reasonable and appropriate. The physical control hard strike which Cst. Mason delivered was applied successfully from his knees after the complainant had been taken to the ground as carefully and as reasonably safe as possible.

[139]   Importantly, I also accept that Cst. Mason was acting in accordance with his Police training and that he was subject to assaultive behaviour in the narrow concrete hallway by Ms. Golobar which left him very little choice. Having watched the video carefully, bearing in mind there were three (3) individuals in a very tight concrete corridor, it is my view that there were no other viable options that made sense in those circumstances.

[140]   Notwithstanding this finding, I also accept that Cst. Mason has articulated to this Court that the strike he administered to Ms. Golobar was objectively reasonable, necessary and proportionate to the threat the complainant posed to him in that narrow R.C.M.P. hallway. In the end, I find that that the Crown has not negatived his section 25 defence beyond a reasonable doubt on the facts in this case. Notwithstanding my specific findings in this regard, and whilst it is somewhat moot in the end result, I am also of the view that there is more than a reasonable doubt created by his section 34 defence.

[141]   Whilst the injuries sustained by Ms. Golobar are most unfortunate, I cannot conclude on the evidence that has been led in this Trial that Cst. Mason’s actions were otherwise reasonable and proportionate in all the circumstances. I also find that any injury could have occurred to the complainant regardless of the amount of force that was employed by this accused given the very unforgiving surfaces that surrounded Ms. Golobar, Cst. Mottishaw and this accused, Cst. Mason.

[142]   Accordingly, Cst. Mason, for the aforementioned reasons, I acquit you of the charge of assault causing bodily harm from December 2, 2018.

[143]   Lastly, I would be remiss not to thank all counsel for their dedicated and hard work throughout this case. It was evident throughout this Trial and very much appreciated.