Canada: Case Bulletin - Day V. Woodburn, 2019 ABQB 356

Last Updated: June 5 2019
Article by Lorena K. Harris and Amjad Khadhair

On May 13, 2019, the Honourable Justice W.N. Renke of the Court of Queen's Bench of Alberta released his decision in Day v. Woodburn, in which Dentons' Canada Region lawyers, Lorena Harris and Amjad Khadhair, represented the defendants, who were police officers and the Chief of the Edmonton Police Service. Mr. Justice Renke dismissed the case against the Defendants in its entirety. The case is significant for Mr. Justice Renke's analysis of forward looking infrared (FLIR) video evidence recorded by the police helicopter, Air 1; his treatment of a prior judicial decision in related criminal proceedings; and his analysis of the physical force utilized by the police officers on the ground to effect the arrest of the plaintiff.

On January 19, 2010, a vehicle driven by the Plaintiff was observed by the pilot of Air 1, travelling erratically and at a high rate of speed through Edmonton. The FLIR video captured the vehicle passing through at least five red lights at speeds of up to 140 km/h within city limits (described as "wild and extraordinarily dangerous" by Mr. Justice Renke). In an attempt to corner him in a parking lot, the Plaintiff escaped by ramming a police vehicle, which, in turn, impacted two officers. One of the officers fired his handgun at the escaping vehicle. The Plaintiff continued to drive through the city, followed by Air 1, until he stopped the vehicle in a residential driveway. He exited the vehicle and attempted to flee the scene, but eventually returned to the vehicle when he realized he could not leave the property. The Plaintiff was brought to the ground by several officers, but continued to resist arrest. The officers used force in order to subdue and handcuff the plaintiff, who suffered injuries as a result. The Plaintiff was charged with numerous criminal offences.

The Plaintiff pled guilty to some of the criminal charges. At the criminal sentencing hearing, Court of Queen's Bench Justice Sanderman reduced the Plaintiff's sentence on the basis that the officers used excessive force while arresting him. The Plaintiff then issued his civil claim against the officers involved.

Mr. Justice Renke admitted the prior judicial decision on sentencing as evidence, but stated it was not determinative and remained his "responsibility to determine whether excessive force was used, and to assess the weight of Justice Sanderman's determination." He proceeded to analyze the FLIR video, stating it was "pivotal evidence" that "clearly and accurately depicted the chase leading up to the arrest," and "captured the structure of events during the arrest." Nonetheless, the FLIR video had limitations, including the resolution that prevented a clear view of fine movements of the officers and the Plaintiff. Thus, an analysis of the witnesses' testimony was necessary.

After reviewing the parties' testimony, Mr. Justice Renke attributed no weight to the Plaintiff's evidence, in part because of his extensive criminal record that included 25 convictions for offences of dishonesty relating to the dangerous operation of a motor vehicle, as well as obstructing a police officer. On the other hand, the officers' testimony were found to be "compelling, credible and reliable."

Mr. Justice Renke reviewed older cases on the law of use of force, including Turton v. Hanson, Crampton v. Walton, Bencsetler v. Vancouver (City), R. v. Nasogaluak and Chartier v. Greaves. Mr. Justice Renke found that "proper police tactics do not simulate a 'fair fight'. Better and safer for all concerned is that the police use overwhelming force to shut down resistance and to control the suspect. The point of the use of force is to end resistance as soon as possible. That protects officer safety but reduces the prospect of injury to the suspect."

In the end, Mr. Justice Renke found that the evidence before him (which was different than that before the sentencing Justice) allowed him to conclude that the use of force by the defendant police officers did not exceed what was reasonably necessary for the arrest of the Plaintiff, and was justified by s.25(1) of the Criminal Code.

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