Lerb decision - durand

LAW ENFORCEMENT REVIEW BOARD
IN THE MATTER OF the Police Act, R.S.A. 2000,
c.P-17, and the Regulations.
AND IN THE MATTER OF the Appeal of Mr. M.
Durand concerning complaints against Cst. C.
Edge (No. 1882), Cst. A. Zalaski (No. 1930), and
Cst. Zielie (No. 2017) of the Edmonton Police
Service.
JUDGMENT OF THE BOARD
(Macdonald/Cunningham/Zelmer)
THE COMPLAINT
Maurice Durand (the “appellant”) appealed the decision of the Chief of Police of the Edmonton Police Service of “Not Sustained”. The appellant filed a complaint arising from an occurrence on Whyte Avenue on June 7, 1998. THE EVIDENCE
This has been a difficult case for the Board to determine the truth of the evidence given because the appellant was intoxicated, emotionally upset due to other factors in his life, and was taking medication for a pre-existing condition. The appellant’s daughter, who was 17 years old at the time, had been drinking and became extremely upset during the course of events. She too was highly affected by alcohol consumption. The respondent police officers in this appeal took no notes of what occurred, completed and submitted brief R-2 Reports, and submitted Use of Force Training Reports, which did not include a lot of additional information other than what their R-2 Report stated. When this hearing was held - four years after the event - there were things added to the evidence given by police witnesses that were not in earlier reports. When things such as this occur, the Board must have questions as to the credibility of the witnesses. The Board, however, is able to glean the truth of certain facts up to the point where the real On June 6, 1998, the appellant took his 17 year old daughter for drinks in order to celebrate her graduation from high school the following day. He was in the midst of a divorce and was not invited to attend the graduation ceremony. The Durand’s stopped at a lounge to begin the evening where the appellant had, by his evidence, two drinks. The appellant, his daughter, and his daughter’s boyfriend (Lanny Beauchamp) then went to the Urban Lounge on Whyte Avenue in Edmonton, where they were allowed entry only after the appellant assured the doorman that his daughter was 18 years of age. The appellant became quite excited and agitated when the doorman demanded proof of age. The appellant, however, prevailed saying he was a regular customer, and The appellant, the daughter, and her boyfriend entered the Urban Lounge and over the course of the evening had drinks. The appellant said he had three beer, two caesars, and a Prozac. Whether the appellant had more to drink or whether the Prozac had a reaction is not clear. What is clear is that subsequently the appellant went completely out of control as the events unfolded. While the appellant was in the bar he wandered quite a bit and tried to hit on at least two At approximately 1:00 a.m., Csts. Farquhar, Edge, Zalaski, and Nicolajsen entered the bar. They were on patrol looking to see if minors were in the bar. Cst. Farquhar asked the appellant’s daughter, her age. She replied that she was 18. This was supported by the appellant. Cst. Farquhar asked the daughter to step outside and she did, accompanied by the appellant. Csts. Edge and While outside the bar on Whyte Avenue, the appellant became very excited and agitated. He paced, yelled, swore, and generally by his own admission, was “in the constable’s face”. Cst. Farquhar signalled for Cst. Edge to assist him. The appellant kept up his tirade on Cst. Edge. He was warned and with parting screams and curses turned to go, assumably back to the bar. Cst. Edge grabbed the appellant’s arm and said, “Where are you going, we’re not through with you yet.” With this the appellant completely lost it and the donnybrook started. At this point it is interesting to quote from the trial of criminal proceedings against the appellant held on July 28, 1999, approximately 1 ½ years after the actual event. The evidence of Pg. 44 – Lines 20-27:
Okay. You heard him explain that she wasn’t supposed to
be in the bar and that she had made a mistake by giving a
false date of birth?
You heard her say – or rather you heard him say to her
that despite that, he wouldn’t give her a ticket, only a
warning?
Pg. 45 – Lines 1-27:
All right. So there wasn’t going to be a ticket issued; was
there?
I can’t say. That’s Constable Farquhar’s decision.
Right, and his decision was he told her despite her telling
them a lie about her age, he would give her only a warning
and not a ticket.
All right. So there wasn’t going to be a ticket issued. You
knew that.
No, I did not know that. I heard him say that he would be
giving her a warning, but he could have changed his mind.
I don’t know.
Well, as far as your knowledge extended, there wasn’t
going to be a ticket; was there.
At that point, no.
Right. Therefore, there would not have been any notice
or any requirement for Mr. Durand to receive notice to
parent; would there?
If there was no ticket, no.
Right. And it’s at that point that Mr. Durand turns away
and walks, as you told us, towards the bar door?
A couple of steps, yes.
He got a couple of steps. So in other words, there isn’t
going to be at that point any ticket issued or any arrest
made; is there?
Not by me.
Right. Yet you grabbed Mr. Durand by the upper arm?
Pg. 46 - Lines 1-7:
All right. And you said to him: Hang on a second, he’s
not done?
In other words, you didn’t want Mr. Durand to go back
into the bar?
Pg 46 - Lines 26-27; Pg. 47 – Lines 1-27; Pg. 48 – Line 1-13:
The situation had not deteriorated, Constable. It had
improved because Mr. Durand was in the act of leaving
the scene; wasn’t he?
No. He was not leaving the scene. He had stepped away.
He had stepped away?
Right? So did that not resolve a good part of the difficulty
that you had perceived?
Yes. I would say that’s fair.
Right. And had he gone back into the bar the problem
would have been resolved entirely?
All right. You at that point had no intention of making an
arrest of any kind; did you?
And to your knowledge Constable Farquhar had no
intention of any kind to issue a ticket or make an arrest.
I don’t have knowledge to his intentions.
Right. What you did hear is that there was a warning in
respect to a ticket.
And a warning perhaps in respect to an obstruction.
Right?
I hadn’t heard the word ‘warning’, no.
You hadn’t heard the word ‘warning’?
I didn’t make a note of the exact words; however, it was
along the lines of: If you continue, you will be arrested for
obstruction.
And he’s –
It wasn’t –
Right. And he stopped. He left. Didn’t he?
Right. So at that point in your mind you have, I would
suggest, no authority to put your hands on Mr. Durand;
do you?
Pg. 52 - Lines 8-13:
MR. DEPOE: You heard the answer. You wanted him to leave.
He was in the act of doing that, wasn’t he, and you
stopped him.
Q Unlawfully?
At this point the trial judge dismissed the charges against the appellant. During the course of these proceedings, Cst. Edge said that he was not given an opportunity to clarify what he had said at the original trial. Cst. Edge further stated that the appellant had committed a literal assault that was coincidental to the events that were going on. The Board takes this to mean that Cst. Edge felt that what occurred after he attempted to stop the appellant was in some way coincidental to what had occurred prior to him stopping the appellant from leaving. It is noted that Cst. Edge, by his own admission, did not arrest the appellant prior to him leaving and that he thought, at least at the trial, that if he had let Mr. Durand go the whole incident would not have occurred. The law relating to the powers of arrest is set out in R. v. Dedman, 1985 2 S.C.R. 2, where it was held that, “police officers when acting or purporting to act in their official capacity as agents of the state, only act lawfully if they act in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties. The reason for this is the authoritative and Section 270 of the Criminal Code states: (a) assaults a public officer of a peace officer engaged in the execution of his duty or a person acting in aid of such an officer; (b) assaults a person with intent to resist or to prevent the lawful arrest or detention (i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or (ii) with intent to rescue anything taken under the lawful process distress or The Board finds that at the point where the appellant attempted to leave the scene and go back into the bar, that Cst. Edge had no power or duty to stop him. As a result at this point, Cst. Edge was not in the lawful execution of his duty. Cst. Edge had no reason to arrest the appellant and no reason Did the appellant assault Cst. Edge after this point? Once the appellant was stopped by Cst. Edge, he (the appellant) grabbed Cst. Edge by his lapels and refused to let go. It is difficult to see this as an assault when it was Cst. Edge who was preventing the appellant from leaving. For refusing to let go of his grip on Cst. Edge, the appellant received five high level stuns to the head. High level stuns are blows delivered to the head, neck, or shoulder area by clasping the fingers of one’s hand and striking a person with force with the bottom part of the exposed palm; the purpose being to disorient the party sufficiently to have him stop whatever he was doing. These stuns are delivered like a punch and can cause confusion and even a concussion to the recipient. It is the Board’s opinion that the stuns used by Cst. Edge under these circumstances, were excessive. They were used in circumstances in which they should have not been used and served to cause the surrounding donnybrook to accelerate, when in fact it never should have accelerated. Also, in the middle of the melee the appellant’s daughter jumped on the back of Cst. Zalaski, who was attempting to assist Cst. Edge to subdue the appellant. The daughter felt that her father was being roughly and improperly handled by the police and she wanted to help. The Board does not find this to be an unreasonable line of thinking by the daughter. In order to get the daughter off of his back, Cst. Zalaski gave her a stun blow to the head. The daughter was a slight seventeen year old and Cst. Zalaski was approximately six feet tall and weighed approximately 200 lbs., and kept himself in excellent condition. The Board finds that the use of this stun in these circumstances was excessive. The Board feels that the use of stuns is becoming a procedure that should be used only in circumstances where it is absolutely necessary. There are many ways for an officer to subdue an unreasonable assailant and quite possibly such other ways might have been employed in this case. That he was unlawfully assaulted, detained, arrested, and charged. That the police failed to give full disclosure. Counsel for the respondent officers broke down those allegations into six key issues which The force used by Cst. Edge on the appellant. The force used by Cst. Zalaski on the appellant’s daughter. The force applied to the appellant while on the ground. The force used on the appellant while being placed in the back seat of the police The force used by Cst. Zielie in handling the appellant in the cells. False and misleading reports, and failure to disclose. ANALYSIS
The burden is on the appellant to prove on a balance of probabilities that his evidence is true. Because of the appellant’s attitude and level of intoxication, many of his allegations must remain unproven. Because of the lack of notes made at the time and the lack of information in the reports filed, the evidence of the police in many instances lacks corroborative credibility. The Board suggests that the Edmonton Police Service ensure that officers involved in investigations all take the time to individually make notes of the event as soon as possible thereafter. Failure to do so may leave the evidence open to question as in this case. The Board will now deal with the first five points as set out by counsel for the respondent officers counsel. The Board finds as follows: That the force used by Cst. Edge on the appellant when applying stuns was excessive. That the force used by Cst. Zalaski on the appellant’s daughter when applying a stun That the force used thereafter on the appellant during the melee is unproven. The force used when placing the appellant in the rear seat of the police vehicle is The force used by Cst. Zielie while in cells is unproven. The appellant’s second ground of appeal is that the Service failed to give full disclosure to the appellant. The law as set out in R. v. Stinchcombe, (1991) 3 S.C.R. 326, is that the Crown is required to produce all relevant information concerning the matter. The criteria is whether any information withheld would impair the right of the accused to a fair trial and make full answer. In the present case there are two things that concern the Board. The first is that the R-2 Reports filed were incomplete and did not disclose all the facts of this event as required by law and under Edmonton Police Service procedure. A person surely cannot make full answer without The second is to fairly produce to the appellant the document entitled, “The Use of Force Training Report”. Because it is a training document the Police Service argued it could not be produced. This might be true if the R-2 Reports contained all aspects of the use of force and there were notes to corroborate the use of force. However, they do not and consequently the appellant did not know the extent of the evidence that could be given against the appellant by the police in this regard. This would limit the appellant’s right to a fair trial and making full answer. The Board finds that if the Use of Force Report is not to be produced that all facts concerning the use of force be put in the reports or notes, or both. Actually even with no Use of Force Report, all facts including use of force should be divulged. The Board finds that Csts. Edge, Zalaski, and Zielie failed to adequately disclose all of the PENALTIES
Cst. Edge used excessive force in the handling of the appellant, and as a result thereof, is ADMONISHED by the Board.
Cst. Zalaski used excessive force in handling the appellant’s daughter, and as a result thereof, is ADMONISHMED by the Board.
Csts. Edge, Zalaski, and Zielie failed to make proper disclosure, and as a result thereof, are ADMONISHED by the Board.
The Board finds that the penalties imposed are not in any way as severe as they might have been. Throughout the actions, the appellant’s conduct was despicable. To act in the manner that he did, particularly in the company of his daughter, and even though he should have been allowed to leave, this Board will not give the appellant any medals for his conduct. With respect to the use of stuns as an acceptable practice by the Edmonton Police Service, the Board has not made comments on the use of stuns in the past, and therefore, the officers have little direction from this Board. It is now, however, known what the Board thinks and in the future of this defence must be done judiciously. In the keeping of notes it is apparent that a sloppy practice has developed in the Edmonton Police Service. Possibly the administration should have ensured that the officers followed this procedure, but apparently no one questioned the failure to keep notes or the failure to make a The failure to disclose the Use of Force Training Report was done as a result of policy of the Edmonton Police Service. The Board has questioned this policy, particularly if the reports are not complete. The Board feels the officers were given little direction in this regard and this cannot then COLLATERAL
There were two other points of law that were argued and as such the Board would like to consider them for the purpose of direction only. Order of Calling Witnesses
The law is that if a person sits in court and hears evidence before he/she testifies, that it is open to suggestion that their evidence is tainted. In the present case the Board can find that no evidence was tainted by the fact that a witness may have been present in the hearing room at the time other evidence was being given. Similar Fact Evidence
The appellant attempted to call evidence of other events concerning Cst. Edge which would tend to show that he is a police officer who uses excessive force. In all cases the similar fact evidence attempted to be entered, occurred after the event of this case and the complaints of the same were either not filed or if they were, they were dismissed without appeal to this Board. Such evidence in the Board’s view is most prejudicial to the respondents and such prejudice outweighs the probative value of the evidence and therefore, the Board finds that, in this case, such evidence it is CONCLUSION
After consideration of all the evidence, including that mentioned in this judgment, the Board is persuaded that the appeal must be allowed. THE APPEAL IS THEREFORE ALLOWED. CSTS. EDGE AND ZALASKI ARE
ADMONISHED FOR USE OF EXCESSIVE FORCE. CSTS. EDGE, ZALASKI, AND
ZIELIE ARE ADMONISHED FOR FAILURE TO MAKE PROPER DISCLOSURE.
DATED at the City of Edmonton , in the Province of Alberta, this J. McKenna, Board Counsel J. Henderson, Counsel for the Edmonton Police Service/Respondent Officers T. Engel, Counsel for the Appellant

Source: http://www.solgps.alberta.ca/boards_commissions/law_enforcement_review_board/LERB%20Decision%20Documents/2003/013-2002.pdf