WESTLOCK – A man who was struck by a police vehicle as a finale to an hour-long pursuit north of Athabasca in 2020 did not have his Charter rights violated and will learn his sentence on three charges related to the incident following the completion of a Gladue report later this year.
After hearing from an RCMP collision reconstructionist and the RCMP constable driving the vehicle that struck Albert Raymond Gladue while he was fleeing from the stolen truck he had just ditched on foot; Judge Karl Wilberg made the ruling following a 90-minute blended voir dire hearing in Westlock Provincial Court Aug. 31.
Gladue was in court for trial to face charges of theft of a vehicle, dangerous operation of a vehicle, and flight from a peace officer following the Jan. 30, 2020, incident that ended on a lease access road north of Smith, which is an hour northwest of Athabasca.
Defence lawyer Richard Forbes argued the rights afforded to his client under the Canadian Charter of Rights and Freedoms were violated when Gladue was struck by the police vehicle and questioned the intent of the officer driving the vehicle. Specifically, Forbes said, Gladue’s Section 7 right to security of person had been breached.
In the end Judge Wilberg did not agree, but allowed the evidence presented during the voir dire into the trial proper. The unsuccessful Charter challenge however, led to immediate guilty pleas on all three charges. A voir dire is a separate hearing, sometimes called a trial within a trial, to determine whether evidence to be presented at trial is admissable. Had the judge found Gladue’s rights had been violated, the charges may have been dismissed or withdrawn.
An agreed statement of facts, the reconstuctionist’s report, pictures from the scene along with the spoken testimony Const. David Thomson and the RCMP collision reconstructionist was all presented as evidence during the voir dire. The footage captured on Const. Thompson’s dash camera was also viewed in court.
Crown prosecutor Brett Grierson called the RCMP collision reconstructionist to the stand as an expert witness, who has investigated more than 300 serious collision scenes in his 17-year career with the RCMP. He also arrived at the scene where Gladue was struck by the police vehicle, after dark at approximately 6 p.m. that day.
He told court he noted a vehicle in the ditch on his arrival that was not related to his investigation, tire marks, damage to the front and driver’s side of the RCMP vehicle at the scene, along with a pair of shoes and an imprint in the snow.
“My investigation concluded the imprint was of a body; a pedestrian and a police vehicle had made contact; the pedestrian had been sent forward and landed in the snowbank,” he said, adding his objectives in the investigation were to identify areas of impact, vehicle speed, the cause and contributing factors.
The dash cam video shown in court shows the same view Thomson would have seen on the day of the collision. The gravel road was plowed but covered in scattered snow and ice. The video started several minutes before the collision and shows the police vehicle maintaining its distance but travelling at high speeds to keep the stolen stuck in view in the late afternoon as the sun is starting to set.
Soon, in the distance, the black truck is seen spinning out and ends up in the left ditch facing the opposite direction. The police vehicle approaches. The suspect is seen exiting the truck and entering the roadway. He runs right, then left, then stops and is thrown over the left fender of the police vehicle, a Ford Explorer. A single frame showed only the suspect’s glasses in mid-air as the video was stopped.
The event data recorder (EDR) was not functioning in the vehicle at the time of the collision, but the recontructionist told court the camera in the vehicle is connected to GPS and shows a speed at the time of the collision at 50 km/h. He noted there can be lag time though and said a rapid decrease from 50 to 35 km/h would not be possible in the time it was noted on the GPS in those conditions, “so, it stands to reason the vehicle was travelling under 50 km/h at the time.”
Forbes did not dispute the expert witness testimony.
The court next heard from Const. Thomson, who was a member of the Athabasca RCMP Detachment at the time but has since transferred to Rocky Mountain House. He is a 14-year RCMP veteran.
Thomson testified he had been chasing a stolen vehicle on East Fawcett Lake Road, a winding and hilly gravel road with hard-packed snow and ice, about two-and-a-half car-widths wide, he said. Traction was “terrible”, but he drove to the conditions while keeping his eyes on the suspect.
Before the moment of impact, Thomson said he noticed a residence about 200 metres away as well and as the suspect entered the road, he took evasive action, as he would have with a deer, and aimed behind the suspect, but the unpredictable zigzagging resulted in Gladue being struck.
Thomson said at times the chase reached speeds in excess of 150 km/h but estimated he was going “running-speed”, perhaps up to 20 km/h, at the time of the collision but said he was losing control due to the conditions and fishtailing as he was attempting to brake.
He immediately exited his vehicle and drew his pistol as Gladue appeared to be reaching under his body as he was face down in the snowbank.
“I drew my pistol as this was a high-risk takedown that didn’t quite go the way it should have,” said Thomson.
After securing Gladue in handcuffs, Thomson said he contacted other officers who were on their way to notify them what had happened. He said he did not contact an ambulance directly but relied on his fellow RCMP members to make the call, which he said would have been common practice despite not asking for an ambulance himself.
Thomson also said he conducted a preliminary first-aid evaluation, though he is not a doctor, and stayed with Gladue until the ambulance arrived. He did not find any broken or protruding bones or any abnormal pain.
“I didn’t find anything outwardly or obviously wrong with him,” Thomson said, but reiterated he is not a medical professional.
“I was trying to avoid a collision, that’s all I can tell you,” Thomson said. “It wasn’t supposed to happen this way. He was supposed to cross my path, I was supposed to go around, stop my car and chase after him. It’s really that simple.”
The extent of Gladue’s injuries were not otherwise discussed in court.
Judge Wilberg believed Thomson’s testimony and agreed that the factors he was facing as far as the speed of the vehicle, road conditions, lighting and the unpredictable escape of the suspect from the stolen vehicle made for a challenging situation and did not find any intent to harm in the officer’s actions, and therefore Gladue’s Section 7 Charter rights were not violated.
Judge Wilberg said he found Thomson’s testimony completely consistent with the dash cam video — that he was braking hard, and he was having difficulty maintaining control of the vehicle. He also didn’t agree with the suggestion that there was any intent to strike Gladue, as the same factors would have made it difficult to hit him if Thomson had been trying to do so.
Forbes noted Gladue has been doing well and is living with his mother in Calling Lake and was in custody “for months” following his arrest, so asked that his interim release be continued. The submission from the defence was for no more time in custody.
As an Indigenous offender, Forbes said his client was opting to exercise his right to a Gladue report, which will be completed before he is sentenced in Athabasca Provincial Court Nov. 21. As Judge Wilberg is seized with the matter, he will deliver his sentence via Webex that day from where he is presiding.