R. v. Belter (E.W.), (2008) 438 A.R. 42 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 06, 2008
• Citations: (2008), 438 A.R. 42 (QB);2008 ABQB 133

R. v. Belter (E.W.) (2008), 438 A.R. 42 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MR.024

Her Majesty The Queen v. Edward Wayne Belter (061083374Q1; 2008 ABQB 133)

Indexed As: R. v. Belter (E.W.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

February 27, 2008.

Summary:

The accused, while driving a stolen vehicle, abducted a young girl at knifepoint, drove her to a secluded location and sexually assaulted her. A 911 call caused police to watch for the accused. When spotted, the accused led police on a chase that ended when the accused crashed into a fence. The accused fled into the dark. A police helicopter using infrared technology located the accused. The accused was found using a police dog, although the two officers could still not see the accused. The dog handling officer yelled a warning for the accused to come out of hiding or the dog would be released. Shortly after receiving no response, the dog was engaged to bite the accused's arm and drag him out of the bushes. The accused struggled. Before the police ordered the dog to disengage, the accused suffered bites requiring 12 stitches. The accused submitted that his s. 7 and 12 Charter rights were violated by the unreasonable use of the police dog and the failure to give him reasonable time to come out of hiding before the dog attacked him.

The Alberta Court of Queen's Bench held that use of the police dog was reasonable, the force used was reasonable and the accused's Charter rights were not violated. In any event, even if excessive force had been used, violating the accused's Charter rights, this was not one of those extraordinary cases where a sentence reduction was an appropriate remedy.

Civil Rights - Topic 1410.3

Security of the person - Law enforcement - Excessive force (incl. assault) - [See Police - Topic 3078 ].

Civil Rights - Topic 3840.5

Cruel and unusual treatment or punishment - What constitutes - Excessive force by police - An accused submitted that the police use of a dog to arrest him, as he hid in the bushes in the dark, which resulted in bites requiring 12 stitches, constituted cruel and unusual treatment or punishment (Charter, s. 12) - The Alberta Court of Queen's Bench stated that "I find that there is nothing inherently cruel or unusual in the police using a properly trained tracking dog to apprehend a suspect in appropriate circumstances, even if the use of the dog to apprehend may necessarily result in some physical injury to the person being apprehended. The evidence from Constable Bellerose satisfies me that dogs such as Indy are well trained, and are trained to cause minimal injury to accomplish the task at hand. In using Indy, the police used a measured amount of controlled force to apprehend and arrest a suspect in circumstances where it would have been dangerous and unreasonable to expect a police officer to get close enough to the suspect to effect an arrest. In determining whether a police officer has used excessive force in effecting an arrest, each case stands on its own particular facts. In some circumstances, the improper use of a police dog to apprehend a suspect may amount to excessive force. The use of an untrained dog, or a badly trained and unresponsive dog may very well amount to excessive force in other circumstances. Here, the dog was well trained, and was deployed in appropriate circumstances. No more harm was done to Mr. Belter than might reasonably be expected to result from the dog's deployment and Mr. Belter's reaction in the circumstances." - See paragraphs 62 to 63.

Civil Rights - Topic 3840.5

Cruel and unusual treatment or punishment - What constitutes - Excessive force by police - [See Police - Topic 3078 ].

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Police - Topic 3078 ].

Police - Topic 3078

Powers - Arrest and detention - Attack dogs - Use of - The accused, while driving a stolen vehicle, abducted a young girl at knifepoint, drove her to a secluded location and sexually assaulted her - A 911 call caused police to watch for the accused - When spotted, the accused led police on a chase that ended when the accused crashed into a fence - The accused fled into the dark - A police helicopter using infrared technology located the accused - The accused was found using a police dog, although the two officers could still not see the accused - The dog handling officer yelled a warning for the accused to come out of hiding or the dog would be released - Shortly after receiving no response, the dog was engaged to bite the accused's arm and drag him out of the bushes - The accused struggled - Before the police ordered the dog to disengage, the accused suffered bites requiring 12 stitches - The accused submitted that his s. 7 and 12 Charter rights were violated by the unreasonable use of the police dog and the failure to give him reasonable time to come out of hiding before the dog attacked him - The Alberta Court of Queen's Bench held that use of the police dog and the force used was reasonable - Given the darkness, the accused's prior efforts to avoid apprehension, the possibility that he was carrying a knife after committing a violence offence, and the officers' objective fear for their own safety, the decision to use the dog and the manner in which it was used did not constitute excessive force - The accused's Charter rights were not violated - In any event, this was not one of those extraordinary cases where a sentence reduction was an appropriate remedy.

Cases Noticed:

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 27].

Crampton v. Walton et al. (2005), 363 A.R. 216; 343 W.A.C. 216; 2005 ABCA 81, refd to. [para. 27].

Potts et al. v. Huynh et al. (2005), 375 A.R. 267; 2005 ABQB 150, refd to. [para. 27].

Breland v. Abbott et al. (2005), 390 A.R. 51; 2005 ABQB 903, refd to. [para. 27].

R. v. R.L.F. (2005), 373 A.R. 114; 2005 ABPC 28, refd to. [para. 27].

R. v. Nasogaluak (L.M.) (2007), 422 A.R. 222; 415 W.A.C. 222; 2007 ABCA 339, refd to. [para. 27].

R. v. Charles (1987), 61 Sask.R. 166; 59 C.R.(3d) 94 (C.A.), refd to. [para. 27].

R. v. MacPherson (N.H.) (1996), 177 N.B.R.(2d) 1; 449 A.P.R. 1; 48 C.R.(4th) 122 (Q.B.), refd to. [para. 27].

R. v. Dennison (1990), 109 N.B.R.(2d) 388; 273 A.P.R. 388; 80 C.R.(3d) 78 (C.A.), refd to. [para. 27].

Bolianatz et al. v. Edmonton Chief of Police Service et al. (2002), 313 A.R. 73; 2002 ABQB 284, refd to. [para. 31].

Robinow v. Vancouver (City) et al., [2003] B.C.T.C. 661; 2003 BCSC 661, refd to. [para. 34].

R. v. Roberge, [1983] 1 S.C.R. 312; 46 N.R. 573, refd to. [para. 34].

R. v. Bottrell (1981), 22 C.R.(3d) 371 (B.C.C.A.), refd to. [para. 34].

R. v. Mulligan (D.) (2000), 128 O.A.C. 224; 142 C.C.C.(3d) 14 (C.A.), refd to. [para. 34].

Chartier et al. v. Greaves et al., [2001] O.T.C. 121 (Sup. Ct.), refd to. [para. 34].

Priestman v. Colangelo, [1959] S.C.R. 615, refd to. [para. 34].

Berntt v. Vancouver (City) et al. (1999), 125 B.C.A.C. 71; 204 W.A.C. 71; 135 C.C.C.(3d) 353 (C.A.), refd to. [para. 34].

Klyne v. Rae (2002), 218 Sask.R. 141; 2002 SKQB 139, refd to. [para. 34].

Skinty v. Bell et al. (2002), 313 A.R. 139 (Q.B.), refd to. [para. 34].

R. v. Cluett, [1985] 2 S.C.R. 216; 61 N.R. 388; 70 N.S.R.(2d) 104; 166 A.P.R. 104, refd to. [para. 34].

R. v. Glykis (E.) and Mangal (A.) (1995), 84 O.A.C. 140; 41 C.R.(4th) 310 (C.A.), refd to. [para. 65].

Counsel:

Allison Anne Downey (Alberta Justice), for the Crown;

Graham Johnson (Dawson, Stevens & Shaigec), for the accused.

This application was heard on January 28 to February 6, 2008, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 27, 2008.