Officer convicted of assaulting suspect denied bid to take case to Court of Appeal
Client: James Othen
Charge: Assault
Defence: actions should have been judged by what was known at the time and not assessed with the benefit of hindsight
Status: review decision and determine additions grounds of appeal
Const. James Othen has apparently run out of appeals of his convictions for assaulting a fleeing traffic stop suspect.
In a written decision released Tuesday, Court of Appeal Justice Jo’Anne Strekaf denied Othen’s application for leave to appeal convictions of assault causing bodily harm and assault with a weapon.
Because the Crown had proceeded by summary conviction on the charges, his convictions were first appealed to a Court of Queen’s Bench judge who upheld the original decision of provincial court Judge Margaret Keelaghan.
Keelaghan found Othen committed assault causing bodily harm on July 30, 2016, when he jumped on the back of a prone Clayton Prince after another officer ordered the fleeing suspect to the ground.
Othen later pushed a key into the head of Prince, an action Keelaghan found amounted to assault with a weapon.
“At trial and on his summary conviction appeal, the applicant argued that his actions were justified under (section) 25 of the Criminal Code, the peace officer defence,” Strekaf noted.
“The issue at trial and on summary conviction appeal was whether the third requirement (under the section) – that the officer’s actions were reasonable and proportional in the circumstances — was met.”
Defence lawyer Alain Hepner had argued Othen’s actions should have been judged by what was known at the time and not assessed with the benefit of hindsight.
“The appeal justice considered this argument, and recognized that police officers are called to make decisions with little time to react and are not expected to meet a standard of perfection,” Strekaf said.
“She ultimately disagreed that the trial judge failed to give sufficient weight to the applicant’s subjective perspective of the events. As part of her assessment of all the evidence, the trial judge found that the complainant had surrendered, with his hands behind his head, facing down on the ground when the applicant began to attack him.”
Strekaf noted that Keelaghan repeatedly reminded herself to avoid the “lens of hindsight” when judging Othen’s conduct that day.
“Ultimately, and after assessing all the evidence, the trial judge found that the applicant’s actions did not amount to reasonable force. The appeal justice found no error in her application of the peace officer defence to this case,” she said of Justice Michele Hollins appeal ruling.
“The applicant has not demonstrated an error of law in the appeal justice’s analysis that would warrant a second level of appellate review.”
Othen, who was sentenced to an intermittent 90-day sentence, will now have to resume serving his weekends-only punishment.
Hepner said he will have to review Strekaf’s decision to determine if there are any further avenues of appeal.
Othen is currently suspended without pay.
Source: Calgary Herald