The Crown has lost an appeal to overturn a Whitehorse man’s acquittal for resisting arrest, with a Yukon Supreme Court deputy judge finding the trial judge had correctly determined the man was unlawfully arrested and that the arresting officer had used excessive force.
The man, Harry Kevin Kolasch, was originally charged in 2016 following an incident outside the Whitehorse Superstore. Earlier that night, Kolasch had thrown a cheeseburger inside a nearby McDonald’s and then attempted to kick the restaurant manager before leaving. The manager called the police and RCMP Const. Christopher Barr responded, locating Kolasch as he exited the Superstore.
Barr told Kolasch to stop twice and that he was under arrest, but Kolasch, who, during the trial, said he was both hard of hearing and intoxicated at the time, continued to walk away. When he did turn around, Barr grabbed him by the arm, twisted him around, slammed him against the hood of a car and then threw him on the ground, where he delivered a punch to Kolasch’s head with so much force that Kolasch was knocked out.
At trial, territorial court Judge Nancy Orr found that Barr did not have legal grounds to arrest Kolasch, and therefore, Kolasch did not resist arrest. She also dismissed Barr’s claim that the force he used in arresting Kolasch was necessary, noting that Kolasch is a smaller, older man than Barr who was not acting violently. Orr acquitted Kolasch for resisting arrest as well as two other charges of being in possession of stolen property and breaching a probation order.
In its appeal, which was heard April 23, the Crown argued that Orr had erred in finding that Barr did not have legal grounds to arrest Kolasch, and that Barr was entitled to use as much force as necessary for him to fulfill his duties. It requested the acquittal on resisting arrest be dismissed and a new trial ordered.
However, in a written decision filed April 25, Yukon Supreme Court Deputy Justice Myra Bielby found that Orr had made no errors in law and upheld the acquittal.
While Orr did not explicitly say that she did not find Barr’s testimony about the arrest unreliable, Bielby said it was clear she did not accept his evidence as true and that the omission did not “render unclear her analysis or conclusions as to credibility.”
Orr did not “simply ignore” Barr’s evidence, either, Bielby continued, noting that Orr outlined the constable’s various reasons for arresting Kolasch in her decision. What Orr did do, Bielby said, is closely scruitize Barr’s testimony, comparing his version of events with security footage of the incident and an eyewitness’s account, ultimately choosing to believe the latter.
“I do not conclude that (Orr’s findings) were unreasonable, or otherwise display palpable and overriding error,” Bielby wrote. “They have the advantage of being supported, at key points, by the surveillance recording…. The appeal is therefore dismissed.”
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