Citation: Berntt v. The City of Vancouver et al

Date:

20011214

2001 BCSC 1754

Docket:

C945376

Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

STACY RYAN MICHAEL BERNTT

PLAINTIFF

AND:


THE CITY OF VANCOUVER
VANCOUVER POLICE CONSTABLE DAVID HANCOCK AND
A NUMBER OF UNIDENTIFIED VANCOUVER CITY POLICE OFFICERS

DEFENDANTS


REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE ROSS

Counsel for Plaintiff

Richard M. Brooks

Counsel for Defendants

Bruce T. Quayle
Karen F.W. Liang

Dates and Place of Trial:

October 15-19 & 22-26, 2001
Vancouver, BC

I Introduction

[1] On June 14, 1994, a riot occurred in the streets of downtown Vancouver following the defeat of the Vancouver Canucks in the seventh and deciding game of the Stanley Cup Playoffs. The plaintiff, Stacy Ryan Berntt, was a participant in that riot.

[2] The Crowd Control Unit ("CCU") of the Vancouver Police Department ("VPD") was called out to suppress the riot, supported by members of the Emergency Response Team ("ERT"), one of which was the defendant, Constable David Hancock.

[3] Mr. Berntt was severely injured when he was struck in the head by a baton fired by Constable Hancock from an ARWEN, the Anti-Riot-Weapon-Enfield.

[4] The plaintiff commenced an action for the injuries which he alleges were suffered as a consequence of this incident.

[5] The plaintiff's action came on for trial before Justice Cohen, who held that Constable Hancock was 25% liable for the injuries of the plaintiff (1997), 28 B.C.L.R. (3d) 203 (S.C.).

[6] An appeal was brought by the defendants. By reasons reported at (1999), 174 D.L.R. (4th) 403, the Court of Appeal ordered a new trial with respect to the issue of whether Constable Hancock's conduct was justified pursuant to s. 32 of the Criminal Code, R.S.C. c-34.

[7] This is the trial of that issue; whether the constable's conduct was justified pursuant to s. 32.

II The Legal Principles

[8] Section 32 provides:

(1) Every peace officer is justified in using or in ordering the use of as much force as the peace officer believes, in good faith and on reasonable grounds,

(a) is necessary to suppress a riot; and

(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(2) Every one who is bound by military law to obey the command of his superior officer is justified in obeying any command given by his superior officer for the suppression of a riot unless the order is manifestly unlawful.

(3) Every one is justified in obeying an order of a peace officer to use force to suppress a riot if

(a) he acts in good faith; and

(b) the order is not manifestly unlawful.

(4) Every one who, in good faith and on reasonable grounds, believes that serious mischief will result from a riot before it is possible to secure the attendance of a peace officer is justified in using as much force as he believes in good faith and on reasonable grounds,

(a) is necessary to suppress the riot; and

(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(5) For the purposes of this section, the question whether an order is manifestly unlawful or not is a question of law.

[9] The Court of Appeal has directed that, in considering the possible application of the section, four questions must be addressed:

1.    Did the peace officer believe that the force he or she was about to use (and did use) was necessary to suppress the riot?

2.    Did the peace officer believe that the force he or she was about to use (and did use) was not excessive having regard to the danger to be apprehended from the continuance of the riot?

3.    If the answer to the first question is "yes", did the peace officer have reasonable grounds for that belief?

4.    If the answer to the second question is "yes", did the peace officer have reasonable grounds for that belief?

[10] Justice Southin has provided additional guidance with respect to the process which is to be followed in answering these questions:

[24] In a case such as this, if the first two questions are answered "yes", the trial judge must proceed to the third and fourth questions. In so proceeding, he or she should be a doppelganger to the peace officer whose conduct is in issue.

[25] The judge must go with the officer, at least from the time the officer first was sent to the place where the riot was in progress. I say "at least" because the peace officer's training, experience, the orders of the day given to him, are all part of what goes into the answer to the question of "reasonable grounds".

...

[27] What a judge must not do in a case such as this is take into account in determining the issue of "reasonable grounds" what the person injured was in fact intending to do, nor the actual consequences of the force used, no matter how tragic.

...

[34] The question in this case is not whether the appellant Hancock was wrong, but whether he lacked reason for his belief if, in fact, he held the belief the section requires as a foundation for his defence of justification.

...

[36] Earlier, I spoke of the judge being a doppelganger. The question might be posed thus: Would the doppelganger, having also been through the tumult of the evening, as the appellant Hancock was about to fire, think to himself, "His firing is wrong and unnecessary and lacking in reason.", or "I wouldn't do it, but his doing it is not lacking in reason.", or, "I would do it too."

[37] It is only in the first case that the defence under s. 32 fails.

[11] Chief Justice McEachern, as he then was, in concurring reasons added:

[53] I agree with Madam Justice Southin that the issue is whether a reasonable person standing in the position of the constable, who had the same responsibility as the officer to bring the riot to an end, and who was operating on the same data base as the officer acquired both in previous training and experience and from the dynamics of that evening including the need to rescue other officers, the need to use gas and other anti-riot devices, and who had previously shot a number of rioters without causing serious injury, could reasonably have concluded that it was a part of his responsibility to shoot the Plaintiff with an Arwen gun.

III The Events of the Evening

A. Early Events

[12] Inspector James Chu gave evidence about the build up of the riot to the time of the critical events. He is now District Commander of District 4 for the VPD. In 1994 Inspector Chu was a patrol Sergeant in charge of a squad of 10 officers.

[13] Game Six of the Stanley Cup series occurred on June 11, 1994. Inspector Chu was on duty that night. He testified that after the game a large crowd did congregate, mostly on Robson Street. Congestion reached the point that vehicle traffic was impeded for a time. The crowd, while boisterous, was well behaved. There were many families, couples, and small children. There were some problems with drinking but nothing that the officers on duty could not contend with. The CCU was available but was not called out that night.

[14] The night of June 14, 1994, after Game Seven, proved to be a very different story. Inspector Chu was again on duty, and was assigned to the 1100 block of Robson Street. He and his squad members were equipped with ordinary patrol equipment, including soft hats and shirt sleeves or light jackets.

[15] The game ended at around 7:30 p.m. after which time crowds started to build up in the downtown area but in particular on Robson Street. More and more people crowded in until by around 8:15 p.m. the street in the vicinity of Robson and Thurlow was completely saturated with people. Vehicles could not pass. Inspector Chu began to become concerned as well about the behaviour of the crowd. Fights were breaking out. A vehicle was rocked. There was drinking. Objects were being thrown. The situation was becoming dangerous for both the police and for members of the crowd.

[16] By 9:00 p.m. the intersection of Robson and Thurlow was completely full. Inspector Chu observed members of the crowd engaging in vandalism and dangerous behaviour. The crowd was becoming steadily more violent, its behaviour whipped up by the actions of certain instigators, such as one man who walked across the live wires, high above the intersection.

[17] At approximately 10:00 p.m. Inspector Chu received a request for assistance from a member of the paramedic bicycle unit. A second man who had been attempting to walk across the live wires above the intersection had fallen and was injured. Inspector Chu and his squad escorted the paramedic through the crowd to assist. The crowd was unco-operative, grabbing and pushing at the officers.

[18] An ambulance was called to the scene. Inspector Chu and his officers tried to form a perimeter around the ambulance. Members of the crowd were trying to rock the ambulance, wrestling with police. The siren seemed to further agitate the crowd.

[19] The officers were completely surrounded by the crowd. Inspector Chu described a confusing and chaotic scene. He did not know where his officers were. It was hard to see and the radio was ineffective. Many objects were being thrown. At the point when the ambulance left, the crowd was completely out of control.

[20] At this point Inspector Chu concluded that it would be necessary to move into the crowd to create a perimeter. The crowd was moved back and the intersection cleared. At this time the CCU arrived on the scene.

[21] Richard Stevens is a retired member of the VPD. In June 1994, Mr. Stevens held the rank of Inspector. He was in charge of District 3 and the CCU. The CCU had been formed in 1993 in contemplation of the Clinton/Yeltsin meetings.

[22] The CCU, which consisted of thirty-eight officers together with a ten constable arrest team, had gathered at 4:00 p.m. on June 14, 1994. CCU members were equipped with helmets, fireproof coveralls, heavy boots, armored vests, shin and elbow pads, gas masks, clear shields and batons. They did not carry firearms.

[23] Several members of the ERT, including Constable Hancock, were assigned to the unit to provide arms support, to assist in suppressing the riot and to protect the members of the CCU. The ERT was a tactical support group with special skills and training to deal with high risk situations. ERT members were equipped with helmets, gas masks and sidearms. Constable Hancock was equipped as well with the ARWEN, which was a weapon which fired a plastic baton

[24] The CCU remained at the Robson Square Media Centre for the early hours of the evening. While at the media centre, Inspector Stevens instructed ERT members that they were to seek instructions with respect to the use of the ARWEN at the scene. It was to be used on ringleaders and people who were throwing objects. Once permission was given at the scene for the weapon to be used, it could be used at the individual officer's discretion.

[25] At 9:45 p.m. the CCU was advised that the situation on Robson was deteriorating and to prepare to move out. The order to move out came at 10:09 p.m. The CCU was to proceed to the intersection of Robson and Thurlow.

B. Robson and Thurlow

[26] The CCU formed into a V formation at Thurlow Street. It encountered resistance. People were throwing rocks and bottles. The officers used pepper spray to push the crowd back. Constable Hancock has described in addition, an aggressive crowd following behind the CCU as it progressed down Thurlow, such that he walked backwards, to protect the rear of the CCU as the unit progressed.

[27] The intersection was clear when the CCU arrived, as a result of the actions taken by Inspector Chu and his officers. A huge crowd remained, continuing to throw objects. There were individuals running in front of the crowd taunting and agitating. Inspector Stevens made the decision to form into two lines to take control of the intersection. The crowd moved back some distance but continued to throw objects. Inspector Stevens advised the dispatcher that gas would have to be deployed, and received the instruction to use the gas at his discretion.

[28] The officers did not have their gas masks on. Smoke was deployed to push the crowd back in order to enable the members to put on their masks. During the time it took to put the masks on, the officers were defenceless. At this point a member of the ERT asked Inspector Stevens for permission to use the ARWEN, and permission was given. Inspector Stevens described the situation at this point. There was tremendous noise. Bottles, rocks and other objects were thrown, glass smashing. People in front of the crowd were yelling, screaming, taunting the police.

[29] Constable Hancock was moving back and forth looking for agitators and threats. The plaintiff came to his attention. He was in front of the crowd, extremely aggressive, angry, in a fighting stance. He threw, at one point, a stick at the CCU and at another point, a bottle of liquid. He was brandishing a large screwdriver. Constable Hancock concluded that Mr. Berntt was acting as a ringleader, encouraging the crowd to greater violence by his actions. He observed the plaintiff moving toward an officer, in his words, "attempting to engage" the officer. He spit at the officer. Constable Hancock decided that Mr. Berntt needed to be dealt with and shot him in the back with the ARWEN at a distance of 20 to 30 feet. The time was approximately 10:21 p.m.

C. Robson and Bute

[30] The CCU was now split into two at the intersection. Shortly after the plaintiff was shot for the first time, one half of the unit began to move down Robson toward Bute. It was at Bute that the plaintiff was shot again, with such tragic consequences, approximately 20 minutes after being shot for the first time at Thurlow.

[31] One of the major factual issues in the case concerns the plaintiff's conduct from the time that he left the Thurlow intersection until the time of the second shot. The evidence given with respect to this issue is set out below.

(1) The Plaintiff

[32] The plaintiff testified that, just before he was struck for the first time at Thurlow, he was "just looking at everybody to see what they were doing." He recalls being hit in the back and falling down, falling down again and then crawling. Smoke was all around.

[33] He recalled that he went to a café and tried to get in but the people inside wouldn't let him in. He then went to the ambulance at Robson and a cross street that we know to be Jervis. He was going to go home.

[34] He received some attention at the ambulance. At that point he decided to go back to show his bruised back to the police.

[35] He stated that he went back to Bute and Robson, lifted his shirt once to show the police the welt on his back. He said that he only raised his shirt once and only the back, not the front. He was swearing at the police. Then he recalled walking back to the crowd, lifting his backpack. He said that he was on his way home. He heard a noise, turned his head, and next remembers waking in the hospital, unable to move or speak.

[36] The plaintiff does not recall having a screwdriver that night. His evidence was that people have told him that he was carrying a screwdriver but he doesn't remember it.

[37] Although the plaintiff testified that he left the scene at Thurlow immediately after being shot, in fact the video marked as Exhibit 2 shows that he was still hanging around and confronting the police after he was shot.

(2) Stevens

[38] Richard Stevens testified that, when the CCU reached the intersection of Bute and Robson, it stalled. There was no way to hold the intersection; the crowd could have come in from behind the unit. Moreover, the CCU was running low on gas. When the unit first arrived the crowd retreated approximately half a block, with only a few individuals between the unit and the crowd. When the CCU stopped, however, the crowd returned. Objects continued to be thrown. He was concerned about the safety of the members of his unit.

[39] His evidence was that he saw a male in a dark shirt between the CCU and the crowd pulling up his shirt and showing a welt the size of a tennis ball on this back. He next heard that someone was down. The injured party was the plaintiff.

(3) Ditchfield

[40] Peter Ditchfield currently serves as the Deputy Chief Officer of the Organized Crime Agency of B.C. In June 1994, he was a member of the VPD, with the rank of Staff Sergeant. He was serving with the CCU and was the NCO in charge of the CCU squad that progressed from Thurlow to Bute that night.

[41] Deputy Chief Ditchfield testified that the plaintiff was a prominent figure, from the very start, at Robson and Thurlow, to the intersection with Bute. Mr. Berntt was inciting others by example. His conduct was an encouragement for others to take a more aggressive role in the riot. He observed Mr. Berntt running back and forth, inciting the crowd.

[42] He recalled that at the intersection with Bute the CCU was halted for a time. They were low on gas. Objects were being thrown from the north and south and from the roofs of the buildings to the side. He recalled seeing the plaintiff back in front of the crowd. Then Deputy Chief Ditchfield was hit by a bottle which smashed off his face shield and cracked his helmet. He was knocked down.

[43] When his attention was next drawn to the plaintiff, he was down, having been hit. Deputy Chief Ditchfield called for an ambulance and ordered his unit to push back the crowd so that assistance could be given to the plaintiff.

[44] Thus, although Deputy Chief Ditchfield was scanning the crowd at Bute, conducting a threat assessment, it was only after the plaintiff was shot that he clearly recalls seeing him at Bute.

[45] Counsel for the plaintiff submits that Deputy Chief Ditchfield is mistaken in his recollection of the plaintiff as having played a prominent role in the riot between Thurlow and Bute. He submits that, consistent with the plaintiff's evidence, the plaintiff left after the first shot, returning briefly and only as described in the plaintiff's evidence.

(4) Hancock

[46] Constable Hancock does not recall seeing the plaintiff while the CCU was moving down Robson Street between Thurlow and Bute Street.

[47] Constable Hancock also testified that the unit came to a temporary halt at the intersection of Robson and Bute. They were running low on gas. At that point the crowd turned and moved back toward the CCU. In Constable Hancock's experience, this was very unusual behavior.

[48] To the north, a bread van was being used as cover and members of the crowd were throwing objects at the CCU from behind the van. Others were throwing objects from the roofs of buildings along the street.

[49] Constable Hancock recalls the plaintiff coming up from the northwest from beyond the bread van, moving in a southeasterly direction. He taunted the officers, swearing. He pulled up his shirt, pushed forward his abdomen so that the screwdriver in the front of his pants could be seen. They locked eyes. The plaintiff began to dance around, bobbing and weaving. He taunted the officers to shoot him again. He was in a state of rage. Constable Hancock brought the ARWEN up to the low ready. He recalls that he pointed at the plaintiff, motioning him away three times.

[50] Mr. Berntt did not leave, he continued to bob and weave. He then pulled up his shirt and turned so that the mark left by the ARWEN could be seen. The plaintiff swore at the officers.

[51] Mr. Berntt then moved into the crowd in the northwest corner of Bute. He then made his way out to the front of the crowd in front of the CCU, confronting them. He turned, walked back into the crowd and stopped. Constable Hancock had determined that action must be taken. He followed the plaintiff in the sights of the ARWEN. The plaintiff stopped. At that point the plaintiff was standing. Constable Hancock initiated the two stage firing action. His evidence is that he aimed at the right side below the deltoid in the centre of the body mass. The plaintiff was 50 to 60 feet away. He saw the plaintiff in a crouched position when the baton struck him. The plaintiff fell to the ground where he lay in a fetal position.

[52] Counsel for the plaintiff submits that Constable Hancock's evidence about the plaintiff's conduct when he first appeared on the scene at Bute Street is a fabrication.

(5) Halloway

[53] Mr. Halloway is a paramedic who has served in the greater Vancouver area for the past 24 years. He was on duty on the night of June 14, 1994. He had been in one of the units which attended at Thurlow to assist the man who had fallen from the wire. His unit later moved to the 700 block Jervis to set up a medical post. There were many people coming for treatment, particularly in the wake of the use of the gas to disperse the crowd.

[54] The plaintiff approached his unit for treatment for his back. He had, upon examination, a round red welt on his right flank above his belt, mid-way between the shoulder and belt and mid-way between the spine and the side, about 4 to 6 inches above the kidneys. The plaintiff was angry and upset, swearing. He told Mr. Halloway that he wanted to go to the hospital. Mr. Halloway assessed his condition, concluded that he did not need to go to the hospital and advised the plaintiff to go home, but to return to his family doctors or call 911 if his symptoms changed for the worse.

[55] The unit received a request about 30 to 40 minutes later to attend someone who had just been shot. The ambulance responded and drove back to Robson and Bute, encountering resistance and difficulty on the way with things being thrown at the ambulance and people everywhere. They stopped at a line of police and got out to treat the victim who turned out to be the plaintiff. The plaintiff was unconscious. He had no muscle tone and was in a stage 3 coma on the Glascow scale (the most profound coma). He had an open wound on the side of his head which was leaking blood, fluid and brain matter. As the crew turned him over to examine him, Mr. Halloway observed a large screwdriver with approximately a 4 inch handle and a 10 inch blade, in the front of his pants. They then rushed the plaintiff, together with a police officer who was suffering from a large arterial bleed, to hospital.

(6) Video

[56] Numerous videos were put into evidence in this trial. Exhibit 1 shows the plaintiff at Bute and Robson from 10:39 p.m., at which point the plaintiff is in the crowd at the northwest corner of Robson and Bute. When first seen on the video, Mr. Berntt joins the crowd. At one point, shortly thereafter, he raises his shirt to show his back to the crowd. He stays in the body of the crowd at the corner until 10:42 when he moves close to the CCU line, between the line and the crowd and raises his shirt again. He can be seen yelling at the police. He then turns and raises his pack. He is shot and falls. We see him next laying on the pavement.

[57] The camera was not focused on the area along Bute near the bread van, which is the area where Constable Hancock testified that he first saw the plaintiff at Bute, and where he said the plaintiff engaged in taunting, swearing and displaying the screwdriver. The video provides no evidence with respect to the plaintiff's prior presence and activities at Bute, if any, nor to the plaintiff's presence along Robson between Thurlow and Bute. Thus, it cannot resolve the conflict in evidence between the plaintiff's account of his activities at Bute and that of Constable Hancock and Deputy Chief Ditchfield.

[58] The video does show that the crowd had been pressed a distance back when the CCU arrived at the Bute intersection. The crowd could still be heard, along with the sounds of breaking glass. As the CCU is stalled at the intersection, the crowd can be seen to return and reform. There are large numbers of young men, drinking and yelling. The sounds of breaking glass continue. It is clear that objects are being thrown at the police. This activity appears to be escalating. One officer is hit shortly before the plaintiff is shot. This is all consistent with the evidence of the police witnesses.

[59] It also shows that Mr. Berntt did not simply return to the police, show his back and attempt to leave. On the video he clearly returns, joins in the crowd, shows his back to the crowd and waits for several minutes before approaching the CCU line to show his back and swear at police.

(7) Findings

[60] This new trial occurred seven years after the events. Those events took place in an atmosphere of confusion, disorder, danger and heightened emotion. Between the criminal proceedings and the previous trial of this matter, the witnesses have given evidence numerous times. Moreover, they have viewed the video recordings of the events of the evening, often several times. In these circumstances, it is not surprising that inconsistencies appear, memory fades and becomes subject to some distortion.

[61] In my view, the plaintiff was an honest witness who was trying his best to give a truthful and accurate account of the evening. However, I concluded that his evidence is unreliable; that unreliability, I suspect, in large part, a product of the injury that he suffered. In particular, I note the plaintiff's testimony that he does not recall having or brandishing a screwdriver that evening, although people have told him that he did so. It is clear that the plaintiff did have and brandish a screwdriver that night. That much is plain on the videos. The fact that the plaintiff testified that he did not remember in spite of what is recorded on the videos, is a sign of his honest effort to recount his recollection. It is, however, equally a sign that important aspects of the events of that evening are not preserved in his memory.

[62] The only other witness to the conduct at issue at Bute prior to 10:39 p.m. is Constable Hancock. Constable Hancock was subjected to a lengthy and relentless cross-examination. Counsel identified discrepancies in his evidence between testimony given in this trial and that given on prior occasions.

[63] However, the discrepancies identified did not amount, for the most part, to more than would be expected given the time that has passed and the number of times he has given evidence. I found them to represent the normal discrepancies or imprecisions one would expect to emerge in the circumstances.

[64] The constable's evidence was consistent with what is recorded in the video recording marked as exhibits in these proceedings. It is largely consistent with the evidence of the other officers, although, as one would expect, given the different roles and different placements, each witness' evidence is distinct.

[65] Constable Hancock's account is in harmony with what is undisputed with respect to the plaintiff's conduct both earlier at Thurlow and in the later confrontation, immediately prior to the second shot, which was captured on video. Moreover, the constable testified that he observed the screwdriver in the front of the plaintiff's pants. This is consistent with the observations of Mr. Halloway that the plaintiff did indeed have the screwdriver tucked into his pants.

[66] His evidence given in earlier proceedings either did not refer to or did not emphasize the evidence that the plaintiff moved into the crowd at the northwest corner of Robson & Bute. For example, he earlier testified that the plaintiff moved into the crowd; that he moved into the intersection. The suggestion was made by plaintiff's counsel that this evidence was given to bring his description of events into conformity with the movements which appear on the video recordings.

[67] I do not rule out the possibility that viewing the videos might influence or modify the recollection of a witness. However, in this case I find that, although the constable's evidence is now more fully consistent with the movements recorded on video, the discrepancies between this testimony and earlier testimony are minimal and not such as to undermine the essential reliability of the evidence. Moreover, the constable did not testify with respect to some conduct of the plaintiff at Bute which is captured in the video. This is consistent with the constable relying upon his memory.

[68] Most troublesome was his evidence given in this trial that he was speculating in several instances in his evidence in earlier proceedings, particularly with respect to evidence concerning the plaintiff's posture and change of posture when shot for the second time. In none of those former instances did Constable Hancock say that his evidence was mere speculation. He is, and was an experienced officer who must be well aware of the difference between recollection and speculation.

[69] In the end, however, I accept that Constable Hancock is an honest witness and have concluded that his evidence is a substantially reliable account of the plaintiff's conduct at Bute Street. I find that the plaintiff did engage at Bute Street in the conduct described by Constable Hancock.

IV Analysis

Application of Section 32

[70] The first matter to be addressed is a finding that a riot was occurring such that the section is engaged. The fact that a riot, within the meaning of the Code, was occurring, was admitted at trial. It was, in any event, clear from the evidence that a riot was occurring prior to and at the time that Mr. Berntt was shot for the second time. Indeed, the riot continued for some time after that shot was fired.

Question One

Did the peace officer believe that the force he or she was about to use (and did use) was necessary to suppress the riot?

[71] Constable Hancock testified that he decided that the plaintiff must be removed from the scene at Bute because he was combative, armed with a dangerous edged weapon, acting as a ringleader or agitator and because he was intent upon inflaming the situation and escalating the violence.

[72] In his view, intensity of the situation at the intersection was building. The violence was growing. The danger was severe. He felt that it was imperative that the plaintiff not be allowed to inflame the situation further. The mass and hostility of the crowd took away the option of closing in on the plaintiff. He fired the round to de-escalate the riot by persuading the plaintiff to leave the scene.

[73] I find that at the time Constable Hancock determined to fire the ARWEN at the plaintiff for the second time, he did believe that the force he was about to use was necessary to suppress the riot.

Question Two

Did the peace officer believe that the force he or she was about to use (and did use) was not excessive having regard to the danger to be apprehended from the continuance of the riot?

[74] The first issue which must be addressed is what was the force Constable Hancock intended to use. Plaintiff's counsel has submitted that Constable Hancock intended to shoot the plaintiff in the head. Clearly, if that was in fact the constable's intention, the answer must be negative.

[75] Constable Hancock was aware that the ARWEN had a lethal capability. He had been trained to avoid sensitive parts of the body, most notably the head. He was aware of the potential danger of a shot with the ARWEN baton to the head, particularly at short range.

[76] Counsel relies upon the expert opinion evidence of Dr. Arthur Chapman, a professor of kinesiology. The thrust of Dr. Chapman's opinion was that, given reaction time, the velocity of the ARWEN baton, and the speed at which a body falls, it would not have been possible for the plaintiff to move from a standing posture to a full crouch in reaction to the shot before being struck. I accept this opinion. I accept that there would not have been time for the plaintiff to see the ARWEN aimed at him and the shot taken, and then duck into a full crouch before being hit.

[77] The video marked as Exhibit 6 in these proceedings, the Grummish video, together with the still photos taken from that video, Exhibits 7 to 9 inclusive, are also inconsistent with the plaintiff having dropped into a full crouch in response to the shot.

[78] That being so, it does not follow that Constable Hancock intentionally aimed at the plaintiff's head. He emphatically denied any such intention and I accept his evidence.

[79] I find that Constable Hancock believed that the force that he intended to apply would leave a welt and a bruise and that he believed that the force was not excessive given the danger from the continuance of the riot.

Question Three

If the answer to the first question is "yes", did the peace officer have reasonable grounds for that belief?

[80] I conclude that there was a reasonable basis for the constable's belief. Constable Hancock's training and experience had taught him that in a crowd control or riot situation there will be certain agitators or ringleaders. These individuals influence the behaviour of the crowd, increasing the intensity and violence of the accused's behaviour. These individuals lead by example, encouraging through their behaviour, an escalation of violence. For a riot to be suppressed and a crowd dispersed it is necessary to remove such individuals.

[81] He had also learned that an individual armed with an edged weapon, anything which could be used in a similar fashion to a knife, was extremely dangerous in a crowd situation.

[82] These were themes that were consistent both in the training which the constable had received at the National Harbour Board, and with VPD, and in his experiences with crowd control situations. He had seen evidence that, once the agitators are removed, the violence and aggression de-escalates and the crowd disperses.

[83] The plaintiff had shown himself at both Thurlow and Bute to be a ringleader or agitator, one of the people who must be removed from the scene if the riot is to be suppressed. He had engaged in unlawful acts. He had put himself out in front of the crowd, taunting and swearing at the police. He was armed with a dangerous screwdriver which he had brandished earlier in the evening.

[84] Moreover, the scene at Bute was deteriorating. The crowd had turned and was closing back in on the CCU.

[85] The orders of the day and instructions given to Constable Hancock are consistent with the conclusion. At Robson and Thurlow, Deputy Chief Ditchfield had given blanket permission to Constable Hancock to use the ARWEN against targets as he considered appropriate. Earlier in the evening, Inspector Stevens had advised ERT members that the ARWEN was to be used that evening to provide firearm support to the CCU since its members did not carry firearms, and to target ringleaders who were inciting the riot and people who were throwing objects.

[86] Deputy Chief Ditchfield's testimony is further evidence in support of the conclusion that there was a reasonable basis for this belief. He testified that the plaintiff was, in his opinion, an appropriate target for the ARWEN. He was one of the people inciting others by example. His conduct was such that it was an encouragement for others to take a more aggressive role in the riot.

[87] He too stressed the importance of removing the ringleaders or agitators who are inciting the crowd in order to suppress a riot. According to his training and experience, once the agitators are removed, the crowd will diffuse.

[88] The plaintiff had behaved as an agitator or ring leader both at Thurlow and at Bute. His conduct made him a person who must be removed from the scene if the riot is to be suppressed. He had not left the scene. The riot was continuing and indeed the situation was deteriorating. Arrest was not an option. In the circumstances, I find that Constable Hancock's belief was reasonable.

Question Four

If the answer to the second question is "yes", did the peace officer have reasonable grounds for that belief?

[89] I find that Constable Hancock aimed the shot at the muscled area of Mr. Berntt's central body mass. His expectation, given his previous training, was that such a blow would have a force sufficient to cause a deep bruise. Earlier in the evening this in fact was the nature of the injury caused when Mr. Berntt was struck with the baton fired at a much closer range.

[90] At this point in the evening, the crowd was re-forming. The level of violence and aggression was increasing. Criminal activities continued. Objects were being thrown, creating a serious risk of injury to officers and members of the public.

[91] Just before the shot was taken, Deputy Chief Ditchfield was hit on his shield by a bottle with sufficient force to knock him off his feet. An officer was transported to hospital in the ambulance with Mr. Berntt suffering from a serious arterial bleed in the leg.

[92] Moreover, the CCU was running low on gas. The arrest team was not able to function. The option of taking Mr. Berntt into custody was not available.

[93] Corporal Hancock's expectation with respect to the nature and expected consequences of the force he intended to apply was reasonable. His assessment of the danger to be apprehended from the continuance of the riot was also reasonable.

[94] Accordingly, in all of the circumstances, I conclude that there were reasonable grounds for the belief.

Conclusion

[95] In summary, I have concluded that a reasonable person standing in the position of Constable Hancock, charged with his responsibility to bring the riot to an end, and who was operating on the same data base as Constable Hancock, could reasonably have concluded that it was part of his responsibility to shoot the plaintiff with the ARWEN. His choice to fire on the plaintiff was neither unnecessary nor lacking in reason.

[96] It follows that the constable's actions were justified pursuant to s. 32. This is a complete defence, and accordingly, the plaintiff's action must be dismissed.

"C. Ross, J."
The Honourable Madam Justice C. Ross