ATHABASCA - Charges against an Athabasca-area man accused of resisting arrest and trespassing were dropped last week after the judge agreed the arresting officer violated the man’s Charter rights.
In Athabasca Provincial Court Jan. 5, Judge Jeffrey B. Champion heard the man was found sleeping in his vehicle in the driveway north of Rochester Sept. 11, and did not respond when attempts were made to wake him, so the RCMP were called to respond to a person in distress.
Athabasca RCMP Const. Philip Lariviere testified during the man's trial he responded to the call at 5:45 a.m. regarding the vehicle and an altercation broke out between him and the suspect.
The officer said he noticed a “40-pounder” between the defendant's legs and that the licence plate did not match the vehicle. When the man did not wake up Lariviere opened the door and attempted to handcuff him, which woke the man up.
“He had a partially finished bottle of what appeared to be vodka sitting in between his legs and he’s passed out.” said Lariviere, adding he had dealt with similar calls before.
Court heard the defendant then put his vehicle into gear during the struggle which led to both men being trapped between the defendant's truck and RCMP cruiser and led to Lariviere hitting the man on the head several times and applying pressure to his neck.
“He went backwards, he came back again. I remember grabbing at him and striking him and doing what I could to get him out of the vehicle because I was afraid if he got that vehicle into reverse again, I’d be dead between two vehicles.”
Defence lawyer Peter Keyes argued his client's Charter rights were violated in that the officer did not adequately identify himself which escalated tensions and that the subsequent search of the truck was unlawful as there was no proof there was alcohol in the bottle the officer saw, nor was it determined the man was intoxicated.
“You didn’t have reasonable and probable grounds for believing he was impaired and you didn’t have reasonable grounds for believing that he had stolen the vehicle, you acknowledged that earlier” Keyes said. “So, I’m going to suggest to you that you had no lawful authority to arrest him.”
Ultimately, Judge Champion sided with Keyes' defence and ruled that the defendant was justified in resisting arrest as he awoke while the handcuffs were being placed on him. He added the search of the vehicle also violated the defendant's rights as it was an unreasonable search based on circumstantial evidence. he cited Sec. 7 of the Charter of Rights and Freedoms which guarantees the right to be free of unreasonable conduct to deprive life, liberty and security of the person.
“I do find that the blows delivered to his head, the attempt to apply pressure points under his jaw, as well as being pinned between the vehicles and being handcuffed upside down until the EMS arrived do constitute violations of Section 12 as cruel and unusual punishment.”
“While excesses can sometimes be explained and understood, they can rarely be accepted. I’m sympathetic to the officer finding himself in a very difficult and frightening, terrifying situation but this was not caused by (the defendant).”
