After a trial that spanned two separate court dates, Judge D. C. Norheim dismissed all charges against a 34-year-old Edmonton man, Jan. 9.
The defendant was in court on seven charges, including threatening to kill, as well as attempting to disarm, a police officer.
The charges stemmed from a March 3, 2013 incident in which RCMP officers Gary Lee and Scott Kirychuk picked the man up after a drunken confrontation.
According to Kirychuck, he and Lee stopped early in the morning, March 3, to break up a group of drunks who appeared to be arguing. As Kirychuck was dealing with a member of that group, the 鈥渆xtremely intoxicated鈥� defendant grabbed him from behind.
Kirychuck said he immediately spun around and apprehended the man, put him in the police truck and drove back to the station.
During the trial the court heard from both Lee and Kirychuck, who each described an intense struggle with the defendant outside the RCMP station as they attempted to bring him in.
When they arrived outside the station and opened the door of the police truck, the defendant got out and began walking away.
As the officers grabbed him and redirected him to the station, Lee said he felt the defendant grab his service pistol and pull on it. He slammed his hand down on the man鈥檚, keeping the gun in its holster and preventing him from pulling it out. Lee couldn鈥檛 remember exactly how long he felt the defendant pulling on his weapon, just that 鈥渋t felt like an eternity.鈥�
In his testimony, Kirychuk said he didn鈥檛 see the defendant reach for Lee鈥檚 weapon, but did hear the officer repeatedly scream: 鈥渓et go of my gun.鈥�
In the ensuing struggle, the three fell to the ground. Both officers said they punched the man multiple times, landing blows to his body and head. They also both remembered him repeatedly shouting: 鈥淚鈥檓 going to kill you.鈥�
The struggle lasted for about five minutes, and with the help of Robert Bell, the guard on duty that morning, they eventually got the defendant under control and in the holding cells. After answering another call, the officers returned to the station and wrote their reports.
During cross examination, Lee, Kirychuck and Bell all admitted that throughout the night the defendant repeatedly questioned why he was being arrested, and often appeared to not understand why he was in police custody.
It also became clear that Lee and Kirychuck鈥檚 written reports lacked several key details: Kirychuck鈥檚, for example, had no mention of the defendant鈥檚 intoxication. In addition, it wasn鈥檛 until several hours after he had been brought into the station that the man was read his rights.
These details would prove to be extremely important, as Norheim said in his verdict that there wasn鈥檛 enough specific evidence to establish exactly what happened that morning. He accepted that there had been a 鈥渟ignificant struggle,鈥� but said there wasn鈥檛 enough evidence to prove that the defendant actually tried to take Lee鈥檚 gun.
Norheim also said it was concerning that he wasn鈥檛 read his rights as soon as he was arrested.
However, Norheim considered the main issue to be whether or not the defendant had been lawfully arrested in the first place.
Norheim said that the evidence suggested Kirychuck had made a snap call to arrest the man as soon as the defendant grabbed his shoulder, without having specific grounds for the arrest.
Norheim agreed that Kirychuck made observations that led to the arrest for public intoxication, but those happened after he had already decided to arrest the man. Norheim said it鈥檚 not in the power of a police officer to decided to arrest someone and then think of a reason later.
鈥淚t is my finding that the crown has failed to establish beyond a reasonable doubt that a legal arrest was made,鈥� he said.
Since the crown failed to prove the defendant鈥檚 arrest was a lawful one, Norheim said the man was within his legal rights to resist the officers, even with violence.
Norheim said that grounds for arrest 鈥渕ay have been apparent if the officer hadn鈥檛 jumped the gun,鈥� because there are a number of explanations as to why someone would put his hand on a police officer鈥檚 shoulder.
With that explanation, Norheim dismissed all of the charges except for the uttering of threats. As for those charges, Norheim said the threats 鈥渨ere comments made in the heat of a struggle with two armed individuals against an unarmed individual.鈥� He said he didn鈥檛 believe the defendant intended to carry out those threats, so he dismissed them as well.
Trevor Nichols
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