An impaired driving arrest in February resulted in a Yellowknife man being sent to hospital with a fractured rib, the court heard during a sentencing hearing for the 31-year-old on Monday.
In the early hours of Feb. 18, Yellowknife Mounties forcibly removed Randy Allen from a car that had been reported stolen in front of the Salvation Army.
Allen, who was described in court as being heavily intoxicated at the time of his arrest, was taken to the ground, searched for weapons and handcuffed. At times during his arrest, the court heard, Allen was “limp” and “falling in and out of consciousness.”
He spent a night in RCMP cells before being taken to hospital by RCMP with a fractured rib, which he sustained during the takedown and arrest.
Injury ‘quite significant’
Allen’s lawyer, Jessi Casebeer, called the injury “quite significant.”
It’s not the first time Allen sustained injuries as the result of an arrest.
Casebeer later told Yellowknifer her client was slammed to the ground by Yellowknife officers in September after RCMP responded to a complaint Allen was causing a public disturbance in front of a city shelter. She said he was left with a black eye as a result of the takedown. Allen was subsequently charged with assaulting a police officer after Casebeer said he spat at an arresting officer while on the ground.
Casebeer and Allen took the matter to trial, but a judge ruled the arrest was lawful and that Allen had been resisting arrest.
On Monday, Allen received a 120-day jail sentence and a three-year driving ban for the Feb. 18 offence after pleading guilty to impaired operation of a vehicle, his third conviction for the same offence.
Dash cam doesn’t capture arrest
Casebeer told Yellowknifer she requested the dash cam footage related to the incident, in which Allen was injured, as disclosure for the case. But the video she viewed did not capture the arrest or the injury.
“The video started after they had arrested Mr. Allen,” stated Casbeer in an email to Yellowknifer. “I was not informed, and I did not ask directly, why the arrest itself wasn’t recorded,” she added.
Yellowknifer has asked RCMP why the dash cam did not record the arrest, and is awaiting a reply.
As a defence lawyer, Casebeer stated it can be frustrating trying to address injuries sustained by clients during police encounters because there is little recourse to do so during clients’ criminal proceedings.
Casbeer stated “either the forced used was so excessive that it merits a stay of proceedings through a Charter application (which is a high burden), or the Judge can take it into account in sentencing.”
But in cases where judges do not consider the force used when sentencing an offender, or, in Allen’s case where a mandatory minimum is required – a third impaired driving offence now carries a mandatory 120 day jail term and a three-year driving ban – those scenarios don’t “result in any remedies for the client,” wrote Casebeer.
Prosecutors can also direct a stay of proceedings in cases of excessive force, but the force used would “have to be excessive” to breach an accused’s Charter rights, stated Casebeer.
The Criminal Code says police officers cannot use excessive force that is “intended or is likely to cause death or grievous bodily harm,” unless an officer believes on reasonable grounds it’s necessary to do so for self-preservation and the protection of others.
Alternative avenues for clients who’ve been injured during police encounters, including making a complaint through the RCMP process or suing the RCMP, are both “very lengthy,” processes,” stated Casebeer.
‘A very sad case’
Casebeer told the court Allen, who grew up in Nunavut, has been struggling with alcohol abuse since an apartment fire in the fall left him homelessness. Since then, she said, Allen has bounced from sleeping on the street to staying at the Salvation Army.
“It’s a very sad case,” said Judge Brian Bruser in NWT territorial court.
Allen was also sentenced Monday for a mischief charge after the court heard he smashed part of the Sobering Centre’s front door in early February. He received 30 days for the offence on Monday, leaving him with a total jail sentence of 150 days, followed by one-year probation.
With credit for time spent in remand custody, 27 days, Allen will have about 2.5 months left to serve.
Lawyer calls for shift in RCMP culture, more oversight
Casebeer stated she understands the RCMP are often put in dangerous situations they need to be able to respond to.
“That being said, it is hard to have clients whose behaviour is criminalized and then are badly injured during the arrest,” she stated.
“I do see issues where I see individuals are repeatedly treated with more force than necessary, but not necessarily enough force to meet the legal tests for a Charter application,” added Casebeer.
“I would say there needs to be a culture shift within the RCMP and a more transparent oversight process for RCMP officers.”
In December, following an external investigation, Yellowknife RCMP were cleared of any wrongdoing after a man sustained fractured ribs during a 2017 encounter with police in RCMP cells.
Edmonton Police Services, the law enforcement agency tasked with conducting third-party reviews on NWT RCMP files, ruled the force used by officers was “necessary and reasonable.”