R. v. W, 2023 ABKB 341 Not Guilty

In R. v. Walker, 2023 ABKB 341, the accused was charged with assault causing bodily harm against an Edmonton Police Constable following a February 13, 2020 incident at a McDonald’s drive-through. The case began when Constable observed the accused yelling at McDonald’s staff and decided to investigate.

Key Legal Issues

• Unlawful Arrest: Rory Ziv successfully proved that the accused’s Charter s.9 rights were violated through an unlawful arrest. Following R v Hadi, the court found that the Constable improperly arrested the accused for Criminal Code obstruction when he refused to produce driving documents, despite the Traffic Safety Act providing specific enforcement mechanisms for such refusals.
• Self-Defence: The accused argued self-defence under s.34 of the Criminal Code after a physical altercation ensued when the Constable attempted to handcuff him.

The Altercation

During the arrest attempt, the Constable performed a “takedown” maneuver on icy pavement, lost his balance, and fell with the accused on top of him. Both men sustained injuries during the ensuing struggle, with the accused punching the Constable’s head and attempting eye-gouging, while the Constable responded similarly and later delivered approximately 10 punches to the accused’s face.

Court’s Decision

The judge found the accused’s actions were reasonable self-defence under the circumstances. Key factors included the unlawful nature of the arrest, the accused’s initial restraint, the sudden escalation by the Constable’s violent takedown, and the proportionate nature of the accused’s defensive response. The court emphasized citizens’ right to resist unlawful arrests and criticized the officer’s approach to conflict resolution.

Result

The accused was acquitted of assault causing bodily harm.

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