(Crystal Schick/Yukon News file)

Crown loses appeal over Whitehorse man’s acquittal on resisting arrest

Harry Kolasch was acquitted of resisting arrest after a trial judge found he was unlawfully arrested

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.”

Contact Jackie Hong at jackie.hong@yukon-news.com

Just Posted

New transitional home opens its doors

Supportive housing, semi-independent living and drop-in services are set to be offered

Yukonstruct, Poor Creature wrap up legal arguments

Justice Ron Veale is expected to give his decision on the case next week.

Second attempted murder charge laid in downtown Whitehorse shooting

Two men are now facing a total of 17 charges in relation to the shooting outside the Elite Hotel

WYATT’S WORLD

Wyatt’s World

Yukon Energy announces rate hike

The average Yukon household will pay an extra $20.48 every month

RCMP asks B.C. cannabis shop to remove image of Sam Steele

Owner happy to comply with RCMP, but wants more information first

EDITORIAL: Time for the Yukon Party’s opening act

Having a competitive leadership race could be good for the party

City news, briefly

Some of the news from the Dec. 2 Whitehorse city council meeting

Arctic Sports Inter-School Championship draws athletes from as far as Juneau

The three-day event included more than 300 participants from kindergarten to Grade 12

Access road to Telegraph Creek now open

Ministry has spent $300K to date on work to clear rockslide

Freedom Trails responds to lawsuit

A statement of defence was to the Yukon Supreme Court on Nov. 19.

Whitehorse RCMP seeking suspects after robbery at Yukon Inn

Robbery took place in early hours of Nov. 27, with suspects armed with a knife and “large stick”

Yukonomist: Your yogurt container’s dirty secret

You should still recycle, but recycling one might be giving you a false sense of environmental virtue

Most Read