Alberta Court of Appeal quashes conviction, addresses excessive use of police force
Wednesday, April 12, 2023 @ 10:14 AM | By John L. Hill
|John L. Hill|
A gunfight broke out in Calgary on March 17, 2017. When the shooting started, Brar fled and hid under the deck of a nearby house. Almost 45 minutes after the armed confrontation of two groups of young men subsided, and the participants scattered, Calgary police in a helicopter reported suspicious activity in a residential area near where the gunfight had occurred. Police and a K-9 unit arrived to investigate. When the dog handler signalled the dog to search under the deck, Brar said, “All right, I’m coming out now.”
The dog attacked, bit Brar’s leg and began pulling him out as the dog had been trained to do. Brar emerged on his stomach with hands above his head. One officer knelt on Brar’s right shoulder while another officer held a rifle to Brar’s back. Another officer punched Brar repeatedly in the face. The suspect was searched, and no weapons were found. Police did locate a handgun wrapped in a sock under the deck as well. Brar claimed no knowledge of the weapon or how it got there. No forensic evidence was able to connect Brar with the gun or its wrapping.
Following his arrest, Brar was taken to hospital. The dog bites were sutured. More serious was the shattered orbital bone requiring surgery and titanium implants to repair. The 21-year-old’s nose had also been broken. He suffered vision loss.
Even though proof of the gun possession was circumstantial, the trial judge found Brar had not offered a rational explanation as to how the handgun came to be in the location where he was found other than conjecture. The Court of Appeal found this to be an unfair shifting of the onus and inconsistent with the law as set out in R. v. Villaroman 2016 SCC 33. Brar had claimed to be an electrician working nearby and sought refuge when it became apparent bullets would be flying. He did not have to prove how a gun came to be in the same locale. Other objects having no connection with Brar were found near him as well.
Perhaps just as serious, if not more so, was the trial judge’s acceptance of the need for police brutality. Even though Brar’s leg was being mangled by the police dog, the police officer’s testimony was that Brar “needed further stunning.” He explained the continual punching as a means “to keep him occupied until the members were able to control his hands.” The use of force in this circumstance was disproportionate to the amount of force needed to complete the arrest or to prevent the offender from escaping. That is certainly laid out in s. 25 of the Criminal Code as interpreted by the Supreme Court in R. v. Nasogaluak 2010 SCC 6.
An assessment of whether a police officer overstepped his authority in subduing Brar must be determined from the perspective of a reasonable person standing in the officer’s shoes as the events unfolded. Here, the degree of force was objectively unreasonable.
By simple acceptance of the inference that a gun was located in the vicinity of Brar and that Brar had to take a beating to protect officer safety, the trial judge erred. Even allowing for the reduction of sentence (30 months to 12 months), the Alberta Court of Appeal was correct in concluding a miscarriage of justice may well have taken place. A new trial was ordered.
We all want to live in a safe society. However, giving police absolute discretion and power to effect an arrest does not serve the interests of justice well. Our respect for law declines when police abuse their authority as cases such as Rodney King’s beating or George Floyd’s murder in the United States point out. Police are given substantial deference and power in their quest to maintain order. However, unless that power is kept in check by courts willing to look at a situation reasonably, absolute power will corrupt, as Lord Atkin said, absolutely.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at email@example.com.
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