Pubdate: Tue, 02 Dec 2008
Source: Observer, The (CN ON)
Copyright: 2008, OSPREY Media Group Inc.
Author: Neil Bowen


Judge Acquits Local Man

A Sarnia judge has acquitted a local man of resisting arrest during a
standoff between the OPP and an angry bar crowd because the charge was
based on an unlawful arrest.

Justice Mark Hornblower issued his ruling following a trial that was
spread over the past year because of the large number of witnesses
involved. It involved multiple days of testimony and

"We are here on a matter that should not have happened," defence
lawyer David Stoesser said in his final submissions to the court in

His 40-year-old client had demanded to know of a police officer what
he was doing when he attempted to lead three women away from a Corunna
bar in January 2007.

The officer told him to back away or be arrested. The demands d the
man was arrested and taken to the ground by the officer.

The officer had arrested a women for possession of marijuana, but it
never resulted in charges. One member of the crowd testified it was a
"weird" situation.

At first, a woman was put in handcuffs, but she was freed and walked
into the bar when the man was led away in handcuffs.

The officer based the women's arrest on a smell of marijuana around
four people in the bar parking lot.

A still unidentified man in the group ran into the

Hornblower said an odour is insufficient grounds on which to make an
arrest, as shown by a Saskatchewan Court of Appeal decision.

Instead of following his order to stay put, the women followed the
officer to the bar where the officer was looking for the man who ran

The officer was not in the execution of his duty when he tried to lead
the women away and their arrest was unlawful, Hornblower said.

Therefore, the 40-year-old man could not be arrested for obstructing
or assaulting a police officer in the execution of his duty.

Assistant Crown attorney Richard Weatherston had argued it was not for
the man to determine if the women's arrest was right or wrong.

His confrontation of the officer had exceeded what he was entitled to
do, said Weatherston.

During the man's arrest, additional officers arrived at the bar, where
a hostile crowd watching the arrest led to an "extremely volatile and
dangerous situation," Weatherston said.

Arrival of additional officers quieted the crowd.

A person cannot be convicted of resisting an unlawful arrest unless
they use excessive force.

The man's hand gestures that the officer testified about, including
clenching his fists, are not an excessive use of force, Hornblower

A disturbance was already underway due to the women shouting and the
man's loud voice did not contribute to that disturbance, resulting in
dismissal of a third charge of causing a disturbance.

In his closing argument, Stoesser said the man had screamed only after
his knee was injured by the officer's kick, which took him to the ground.
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