The lawyer representing a Whitehorse man who was acquitted of resisting arrest after a judge found that he had been unlawfully arrested — and that excessive force was used in the arrest — is asking the court dismiss the Crown’s appeal of the case. (Crystal Schick/Yukon News file)

Defence lawyer asks Crown appeal of Kolasch acquittal be dismissed

In factum, Harry Kolasch’s lawyer says it’s clear that police officer used excessive force

The lawyer representing a Whitehorse man who was acquitted of resisting arrest after a judge found that he had been unlawfully arrested — and that excessive force was used in the arrest — is asking the court dismiss the Crown’s appeal of the case.

Harry Kevin Kolasch was charged with resisting arrest following an incident with RCMP Const. Christopher Barr in the Whitehorse Superstore parking lot the evening of Dec. 31, 2016. Following a one-day trial, territorial court Judge Nancy Orr threw out the charge, finding that Barr did not have legal grounds to arrest Kolasch and had “jumped” in the process, punching Kolasch so hard that Kolasch was knocked out and Barr’s hand swelled up.

The incident started at the Whitehorse McDonald’s, where an intoxicated Kolasch threw a cheeseburger and allegedly attempted to kick the manager before going over to the nearby Superstore. The manager called police and Barr attended the McDonald’s before heading over to the Superstore.

Barr was outside as Kolasch, escorted by a security guard, left Superstore, and Kolasch began walking away. Barr grabbed Kolasch and a struggle ensued, with Barr throwing Kolasch onto the hood of a car and then onto the ground.

During the trial, Barr had testified that he had feared for his safety during the arrest, alleging that while they were on the ground, Kolasch had reached for the gun. Orr did not accept that, noting in her Dec. 8, 2017, decision that Kolasch is older and smaller than Barr and that he was also heavily intoxicated at the time of the arrest.

The Crown filed a notice of appeal Jan. 5, arguing that Orr had “erred in law” in her decision and requesting a new trial.

In a factum filed April 6, Kolasch’s lawyer, Vincent Larochelle, asked that the appeal be dismissed, writing that the Crown’s factum “reads as a long and uninterrupted attempt at recasting and recharacterizing the findings of fact made by the trial judge.”

“By picking and choosing portions of sentences and extrapolating tenuous assertions from (Orr’s decision), (the Crown) does an injustice to the trial judge’s careful consideration of all the circumstances within which Const. Barr’s force was deployed,” Larochelle wrote, describing Kolasch as a “small, old and frail man” who was “jumped” in a dark parking lot by Barr.

“To boil down the judge’s reasoning: it is not reasonable for police officers to throw passive and cooperative suspects on cars just because they threw a hamburger previously. It probably never will be.”

Barr’s “unprofessional policing and excessive force are the sole reasons responsible for turning a stray flying McDonald (sic) cheeseburger incident into a full-blown crisis at the Superstore, requiring the intervention of three additional police cruisers and medical interventions.”

“No case law is needed to understand that what happened is wrong, and indeed none is cited by the respondent,” the factum concludes. “The respondent replies to the appellant’s submission armed with nothing but common sense, and respectfully invites this Court not on to dismiss the appeal, but to in turn condemn the actions of (Const.) Barr.”

The appeal is scheduled to be heard later this month.

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

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