Lorena K. Harris Amjad Khadhair July 2 2019 Alberta judge dismisses case against police officers on grounds of reasonable force Dentons | Litigation - Canada Lorena K. Harris, Amjad Khadhair Litigation IntroductionFactsDecisionIntroductionOn 13 May 2019 the Honourable Justice WN Renke of the Court of Queen's Bench of Alberta released his decision in Day v Woodburn, dismissing the case against the defendants – who were police officers and the chief of the Edmonton Police Service – 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;treatment of a prior judicial decision in related criminal proceedings; andanalysis of the physical force used by police officers on the ground to effect the arrest of the plaintiff.FactsOn 19 January 2010 a vehicle driven by the plaintiff was observed by the pilot of Air 1, travelling erratically and at a high speed through Edmonton. The FLIR video captured the vehicle passing through at least five red lights at speeds of up to 140km per hour within city limits (described as "wild and extraordinarily dangerous" by Mr Justice Renke). During an attempt to corner him in a parking lot, the plaintiff escaped by ramming a police vehicle, which, in turn, hit 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 returned to the vehicle when he realised that 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 to subdue and handcuff the plaintiff, who suffered injuries as a result.The plaintiff was charged with numerous criminal offences and pled guilty to some of the charges. At the criminal sentencing hearing, Court of Queen's Bench Justice Sanderman reduced the plaintiff's sentence on the basis that the officers had used excessive force while arresting him. The plaintiff then issued his civil claim against the officers involved.DecisionMr Justice Renke admitted the prior judicial decision on sentencing as evidence but stated that it was not determinative and that it remained his "responsibility to determine whether excessive force was used, and to assess the weight of Justice Sanderman's determination". He proceeded to analyse the FLIR video, stating that it was "pivotal evidence", which "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 quality, which prevented a clear view of the 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, which 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 was 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; andChartier v Greaves.He found that:[P]roper 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.Ultimately, Mr Justice Renke found that the evidence before him (which was different from that before the sentencing judge) allowed him to conclude that the use of force by the defendant police officers did not exceed what was reasonably necessary for the plaintiff's arrest and was justified under Section 25(1) of the Criminal Code.For further information on this topic please contact Lorena K Harris or Amjad Khadhair at Dentons Canada LLP by telephone (+1 780 423 7100) or email ([email protected] or [email protected]). The Dentons Canada LLP website can be accessed at www.dentons.com.