Ontario Court of Justice

Date: 2024 01 22 Information No.: 21-12055 Central West Region - Brampton

Between: His Majesty the King — And — Kevin Arnem

Before: Justice Brian G. Puddington Heard on: November 20 – 24, 2023 Reasons for Judgment released on: January 22, 2024

Counsel: S. Walker, counsel for the Crown J. Markson, counsel for the accused Kevin Arnem

Contents

• OVERVIEW
• THE EVIDENCE AT TRIAL
  • i) The Evidence of Ramanpreet Singh
  • ii) The Evidence of the Police Officers
  • iii) Overview of the Arrest
  • iv) The Video
  • v) The Police Policy Directives
  • vi) The Canine Unit Deployment Manual and Canine Training Evidence
• THE LEGAL PRINCIPLES
  • i) The Presumption of Innocence
  • ii) Justified Use of Force – Section 25 of the Criminal Code
• ANALYSIS
• CONCLUSION

Puddington J.:

Overview

[1] Kevin Arnem is charged with committing an assault causing bodily harm on Ramanpreet Singh contrary to section 267 (b) of the Criminal Code. He is further charged with using a weapon in committing that assault, contrary to section 267(a) of the Criminal Code.

[2] Officer Arnem is a sworn Peel Regional Police Officer and has been a police officer for approximately 30 years. He was assigned to the Canine Unit in 2014. The alleged “weapon” in this case is his K-9 dog, Nitro.

[3] There is no controversy that on May 5, 2021, Nitro bit Ramanpreet Singh, causing him bodily harm. What I am to decide in this case is whether the deployment of Nitro (the use of force) was reasonable in the circumstances.

[4] For the reasons that follow, I find Officer Arnem not guilty on both counts.

The Evidence at Trial

i) The Evidence of Ramanpreet Singh

[5] The Crown called Mr. Singh, as well as numerous police officers as part of its case. The defence did not call any evidence, but of course cross-examined the Crown witnesses at length.

[6] I will start by saying that Mr. Singh was not a credible or reliable witness. The Crown does not necessarily dispute this assessment of his evidence. His explanation as to why he was in the stolen car that day is, quite frankly, nonsense. Despite having very limited funds, he explained that he paid an individual, who he had just recently met, $1000 to “rent” a Mercedes for 15 days and that he had no idea it was stolen. I do not believe this evidence, as it was clearly contrived in an attempt to distance himself from possessing a stolen car. In addition to his evasive evidence as to how he came into possession of the car, he was also equivocal about his use of heroin that day and the night before and about what he was doing in the vehicle at the time of the arrest. I cannot, therefore, accept his evidence as credible or reliable.

[7] Mr. Singh’s credibility and reliability, however, is of little significance for this case, given that there is a video of the arrest and evidence from the other officers at the scene who described this incident in great detail.

ii) The Evidence of the Police Officers

[8] The Crown called 6 police officers in this case. 4 of them were at the scene on the day in question, 1 was Officer Arnem’s supervisor who was not present at the arrest and one was a witness who testified about the training and handling of police dogs in general.

[9] I do not intend to review the evidence of each officer, as they did not differ in any significant way. Each officer described how they were called to a stolen car. Each testified in cross examination that such calls are highly volatile and considered high-risk, due to the number of unknown circumstances. It was for this reason that they all had their guns drawn. Each officer on scene had a different view and perspective of the arrest.

[10] While not the crux of his submissions, the Crown did suggest that some of the police evidence in this case may have been guided by a desire to protect their fellow officer. With respect, I disagree. All of the officers, in my view, testified as best they could about the events that day and afterwards. Some of the officers had viewed the video of the arrest, others had not. I did not find anything in their evidence to be anything other than their honest belief in what happened that day.

iii) Overview of the Arrest

[11] On May 5, 2021, the Peel Regional Police were called to 1332 Duval Drive in Mississauga in response to a report of an individual sleeping behind the wheel of a stolen black Mercedes. Several police units attended the scene, including the accused, Officer Arnem, and his dog Nitro. The stolen car was “boxed in” by police cruisers. Constable Ewan, one of the officers closest to the stolen car, could see an individual (who later turned out to be Mr. Singh) slumped over at the wheel. Constable Ewan could not see Mr. Singh’s hands, and did not know if there was any other passengers in the car. All officers on scene, except Officer Arnem who had Nitro on a leash, drew their firearms.

[12] Officer Arnem approached the driver’s side of the car, demanding that Mr. Singh exit the vehicle. When the door was not opened by Mr. Singh, Officer Arnem had to open the door. Nitro was barking throughout. Once the door opened, Constable Ewan moved forward to grab Mr. Singh, but Officer Arnem motioned for Constable Ewan to step back by placing his arm out towards him. Mr. Singh slowly exited the car and Officer Arnem demanded that he get on the ground. Rather than get down on the ground, however, Mr. Singh turned to his right and headed towards the front of the stolen vehicle and in the general direction of Constable Ewan. It was at this time that Nitro was deployed and Mr. Singh was bit, causing injury to his leg.

[13] After the arrest and the scene had calmed somewhat, Constable Ewan had a brief interaction with Officer Arnem. According to Constable Ewan, they had never met before and have not spoken since the incident. But on the day in question, Officer Arnem said to Constable Ewan something akin to “he should not have come at you.”

iv) The Video

[14] As mentioned, a video of part of the arrest was filed as Exhibit 1. A zoomed in version of that same video was Exhibit 2. I am told it was a video taken by a civilian witness on their phone. The video is approximately 30 seconds long and only captures the time that Officer Arnem approaches the vehicle, and then concludes shortly after Nitro bites Mr. Singh. The bite itself is obstructed by a police cruiser and is not captured on the video, but the audio captures Mr. Singh crying out in pain.

[15] After numerous reviews of the video, it looks as though Mr. Singh was scared of Nitro and may have been trying to get away from the barking dog. The key words there, however, are “after numerous reviews”. As I will describe in more detail below, I have reviewed the video of this arrest more than a dozen times from the comfort of the courtroom and my chambers. I have also had the benefit of 39 screen captures from that video, filed as Exhibit 5. On the day in question, Officer Arnem had just under 11 seconds to assess the situation and act in dangerous, evolving and very dynamic circumstances.

v) The Police Policy Directives

[16] The officers who testified were cross examined with respect to various Peel Regional Police Directives. These Directives dealt with subjects such as “Incident Response” the “Canine Unit” and “Approaching a Suspect Vehicle. The purpose of the questions on these directives was to try to put into context the training officers receive and what was in their minds when they arrested Mr. Singh that day.

[17] As already noted, there was no dispute that the arrest of Mr. Singh in a stolen car is considered a “high-risk takedown”, given the various unknowns officers face in such a situation. The Crown fairly conceded in their submissions that Officer Arnem had grounds to arrest Mr. Singh and was authorized to use at least some level of force to affect that arrest.

[18] The Directives define terms such as “intermediate weapons” that are not intended to likely cause serious harm or death. They also addresses the Ontario Use of Force Model that is a graphic representation of a member’s response options. According to Directive I-B-401 (F), a police service dog is an “Incident Response Option” (See Exhibit 8, Peel Regional Police Directives, Tab 2, page 2 of 9) With respect to the use of Peel Regional Police Service Dogs, section K of the “Incident Response” Directive states that:

The decision to use the P.R.P. Service dog shall, at the discretion of the P.R.P. Service dog Handler, be based upon the physical and/or mental state of the subject, the circumstances of the encounter, the degree of resistance, and the nature of the offence. (See Exhibit 8, Peel Regional Police Directives, Tab 1, page 19 of 39).

vi) The Canine Unit Deployment Manual and Canine Training Evidence

[19] As part of their case, the Crown also introduced as Exhibit 12, the “Canine Unit Deployment Manual”, and called the Master Trainer of the canine unit, Officer Michael Anderson, who is responsible for all dogs in the unit. He described where most K-9 dogs come from and how they are trained.

[20] According to Officer Anderson, dogs are supposed to remain on their target for one bite. But that can change, due to circumstances. In a perfect world, the dog would grab one spot and stay and are taught to keep injuries minimal. Put simply, Mr. Anderson described the use of K-9 dogs in the following manner: Once trained properly, “the handler is the thinking part. The dogs don't think, they react.”

[21] The Canine Unit Deployment Manual states that “taking into consideration the seriousness of the crime and the circumstances surrounding the incident the handler will clearly call out a WARNING prior to releasing the dog.” (See Exhibit 12, Canine Unit Deployment Manual, page 85). This statement is also clear that the warning is not mandatory in every situation, as the circumstances surrounding the incident must also be taken into account.

The Legal Principles

[22] With the context of the arrest, the Policy Directives governing the police in this case and the use and training of K-9 Dogs outlined above, I will now turn to the legal principles I am guided by when assessing that evidence.

i) The Presumption of Innocence

[23] It is important to remember at the outset and throughout that Mr. Arnem is innocent until proven guilty. The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his or her liberty. Without these protections, there would be a serious risk of wrongful convictions – an outcome that cannot be accepted in a free and democratic society.

ii) Justified Use of Force – Section 25 of the Criminal Code

[24] Officer Arnem’s actions, in deploying Nitro are prima facie an assault, as it was the intentional application of force without Mr. Singh’s consent. This case turns on the availability and applicability of section 25(1) of the Criminal Code.

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[25] Section 25(3) of the Criminal Code goes on to say:

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

[26] The Crown in their submissions submitted that this case turns only on section 25(1), and not section 25(3), as a dog bite does not rise to the level of “likely to cause death or grievous bodily harm”.

[27] There are three elements to section 25(1). The onus is on the Crown to disprove these elements beyond a reasonable doubt. (See R. v. Dobbs, 2016 ONSC 4957 at paragraph 27).

[28] First, the police officer’s action must be authorized by law. In other words, the arrest must be lawful. In Officer Arnem’s case, this element is not really in dispute. It was clear from all of the officers involved that Mr. Singh was slumped over in the driver’s seat of a stolen Mercedes. They knew the car was stolen and the police had reasonable and probable grounds to arrest Mr. Singh.

[29] The second and third elements of section 25(1) requires that Officer Arnem must have acted on reasonable grounds when he engaged Nitro (used force) and that he must have used only as much force as necessary in the circumstances to affect the arrest. It is here where the Crown and Defence part ways in their positions in this case.

[30] The second element of section 25(1) requires looking at Officer Arnem’s actions using a “modified objective test”. As explained by Justice Hill in R. v. DaCosta, 2015 ONSC 1586 at paragraph 105:

judicial review of “the sometimes hazy border between excessive and acceptable force” … looks to the reasonable officer in similar circumstances to those faced by the subject officer. Accordingly, this modified objective test … takes account of not only the external conditions including urgency and the imminence of the threat, the risk posed by the threat, the time to react, the unknowns and limited information available …, but also such factors as the knowledge, training and experience of the officer. (Citations removed).

[31] The third element under section 25(1) requires that the police officer must have used only as much force as necessary in the circumstances to affect the arrest. This last element for determination requires the Crown to establish, beyond a reasonable doubt, that the force used was not necessary in the circumstances. In other words, was the deployment of Nitro in this case excessive? (See: Dobbs, at paragraphs 24-34.)

[32] In addition to the cases mentioned above, there have been several other cases that have discussed section 25 of the Criminal Code. The Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6 at paragraph 32 emphasized that the allowable use of force to be used by the police is “constrained by the principles of proportionality, necessity and reasonableness”. Nasogaluak explained that section 25 of the Criminal Code takes a blended subjective/objective approach to the question of whether the officer had reasonable grounds to believe that the use of force in question is necessary. What this means is that judicial review of a forcible arrest requires an assessment of the reasonableness of the use of force in the totality of the circumstances. Again, it is the perspective a reasonable officer with training and field experience in circumstances similar to those faced by the subject officer. (see R. v. Montsion, 2020 ONCJ 464 at paragraph 419).

[33] The officer need not testify and articulate his or her grounds for belief. Instead, it may be inferred from his or her conduct and/or the unfolding events. But evidence of the requisite belief must be found somewhere in the trial record. (see Montsion at paragraph 427).

[34] As Justice Kelly also notes in Montsion, the “question is not whether the belief turned out to be correct, but whether it was reasonable at the time.” (See Montsion at paragraph 428).

[35] A reviewing court must guard against the tendency to over-rely upon reflective hindsight (see R. v. DaCosta, 2015 ONSC 1586 at paragraph 98). The Supreme Court of Canada has also cautioned that police actions should not be judged against “a standard of perfection” (see Nasogaluak at paragraph 35) and reviewing courts should avoid a “Monday morning quarterback” approach when making their determinations about the reasonableness of the force used. As summarized in R. v. Cornell, 2010 SCC 31 at paragraph 24:

It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[36] This cautionary tale was also articulated by our Court of Appeal in R. v. Golub, [1997] O.J. No. 3097 (ONCA) at paragraphs 44-45:

Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised.

[37] This does not mean, of course, that the police should be given a carte blanche with respect to their decisions to use force. It is important that judicial review occur when necessary, not only to protect the complainant in particular cases, but to also maintain the public’s respect for, and faith in, the administration of justice. As Justice ODonnell of this court stated in R. v. Baxter, 2018 ONCJ 607 at paragraph 12:

The expanded powers in the Criminal Code and judicial restraint in "Monday-morning quarterbacking" are not a free pass. Accordingly, the mantra of "officer safety", for example, is, at one and the same time, both a perfectly valid and important concern, but also has the potential to become a justification for all manner of violations of suspects' constitutional rights and physical integrity. In short, judicial appreciation of the challenges of policing does not give the police carte blanche in the use of force against subjects.

[38] On a cursory view of the civilian’s video in this case, a review of Officer Arnem’s conduct and use of Nitro in this arrest is undoubtedly necessary.

[39] Justice Kelly in Montsion reviews the law of justified use of force by police officers in great detail. Both the Crown and Defence in the case at bar submitted that this case is a thorough and helpful review of the law for the issue to be decided by me. I agree, as can be seen by my heavy reliance on Justice Kelly’s decision in this analysis thus far. Justice Kelly notes at paragraph 419 of Montsion several non-exhaustive factors the court may consider when determining the reasonableness of the force used.

• the urgency of the situation;
• the nature and imminence of a threat to the police, the public, or the suspect;
• whether the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with the arrest procedure;
• the relative sizes and weights of the officer(s) and the suspect;
• the time to react;
• information available to the officer, including information about a history of conduct that might represent a threat to police;
• information that remained unknown to the police (e.g., whether or not the suspect had a weapon);
• training and experience of the officer.

[40] Having reviewed the law regarding justified use of force by police officers, I will now turn to applying that law to the specific facts of this case.

Analysis

[41] As mentioned, Police Policy Directives were put to many of the officers by the defence. From these questions, all the officers agreed that arrests of individuals in stolen vehicles are considered a “high-risk takedown”. The Crown did not dispute this fact, nor did they take any issue with the fact that Nitro was at the scene of the arrest of Mr. Singh as an available “Incident Response Option”. It was also conceded by the Crown, that Nitro was not a use of force option that would be used to cause death or grievous bodily harm, thereby invoking an analysis under section 25(3) of the Criminal Code.

[42] I find that it was not unreasonable that Nitro was there that day as a use of force option. According to Exhibit 12, introduced by the Crown, “the use of a canine as a force option is considered an “Intermediate Weapon” in the Use of Force Continuum. (See Exhibit 12, Canine Unit Deployment Manual at page 85). “Intermediate Weapons” are defined in the Incident Response Policy Directive as “less-lethal weapons that are not intended to cause serious injury or death”. (See Exhibit 8, Peel Regional Police Directives, Tab 1 at page 4 of 39).

[43] The Crown submits however, that engaging the Intermediate Weapon (Nitro) in this case was excessive in the circumstances and it was not reasonable for Officer Arnem to have deployed him.

[44] As many of the officers had different points of view of the interactions, and I did not hear from Officer Arnem, the video is some of the best evidence in this case. As Justice ODonnell points out in Baxter, however, video footage, while very helpful, is still finite. It does not capture all of the verbal interactions between Mr. Singh and the police, nor does it capture the entire incident. That being said, a detailed review of what is seen on the video goes a long way in assisting my analysis of the arrest in this case.

[45] The video shows Officer Arnem approach the driver’s side door of the Mercedes. As Officer Arnem first attempts to open the driver’s side door, Constable Ewan can be seen climbing over the hood of the stolen Mercedes to get closer to the driver’s side door as well. The door to the car is eventually opened, and Constable Ewan reaches towards Mr. Singh to presumably remove him from the car. Officer Arnem, who is maintaining control of Nitro (who is also barking) can be seen to wave Constable Ewan off, extending his arm as though to tell Constable Ewan to keep his distance. As this is happening, Mr. Singh starts to get out of the car. As he does, Officer Arnem can be heard, at least three times on the video, telling Mr. Singh to “get on the ground now”.

[46] Mr. Singh stands out of the car, with his arms tucked up towards his chest. He moves away from Officer Arnem and begins to walk towards the front of the car. He does not immediately get on the ground, but rather continues to head towards the front of the car and in the direction of Constable Ewan.

[47] It is arguable, upon numerous reviews of the video, that Mr. Singh may have been voluntarily heading towards the ground, as he approached the front of the car, but I do not find that to be obvious. Regardless, he eventually does go to the ground, but it is not clear from the video whether he does so himself, or if Constable Ewan assists in taking him to the ground. It is in this split second that Nitro is deployed and bites Mr. Singh.

[48] It is important to note that up until Mr. Singh turned his back on Officer Arnem and started to move away from him (for whatever reason), Officer Arnem had Nitro on a very short leash and was controlling him. It was also clear that Officer Arnem was doing his best to control the entire situation as well. This is evidenced by Officer Arnem telling Constable Ewan to step away. It was only as Mr. Singh moved towards the front of the car and towards Constable Ewan, and after saying get on the ground three times, that Nitro was deployed.

[49] In watching the video many times, it appears as though Mr. Singh may have been legitimately afraid of the barking dog and that his movements away from Nitro and Officer Arnem were an attempt to distance himself from them before getting on the ground. Mr. Singh may not have wanted to lay down in front of a barking dog, and this is what he described in his testimony.

[50] What I am to decide, however, is whether, in the seconds Officer Arnem had to act, his deployment of Nitro was reasonable. It must be remembered that Officer Arnem, in that moment did not have the benefit of watching Mr. Singh’s hands and movements, frame by frame, in slow motion on a video.

[51] Officer Arnem had to ascertain, in a very short period of time, what this stranger who was sitting in the driver’s seat of a stolen car was about to do. Stolen vehicles create all sorts of issues for police officers. As described by all officers in this case, and as a matter of common sense, Police Officers often do not know anything about the person behind the wheel. They do not know who else is in the car. They have no idea if anyone is armed with a knife, a gun or some other weapon.

[52] While Officer Arnem did not testify, he need not do so. As already noted, I may infer from his conduct and/or the unfolding events what is reasonable in the circumstances. Officer Arnem had an unknown individual who had just exited a stolen vehicle. That individual was told three times to get on the ground, and did not. Instead, this individual, moved towards the front of the car in the direction of another officer. In that split second, it was reasonable for a person in Officer Arnem’s position, with his training and time on the police service, to act to protect his fellow officer and affect the arrest. I also infer from the comment by Officer Arnem to Constable Ewan after the arrest that “he should not have come at you” that Officer Arnem believed there was some danger in Mr. Singh’s movements toward his fellow officer.

[53] Also after the arrest of Mr. Singh, the Peel Police Canine Unit posted on Twitter about the incident. In it (Exhibit 11) the police say that Mr. Singh “ran” from the police. I do not make any adverse findings with respect to this Tweet. Whether Officer Arnem used the word “ran” when reporting the incident to his superior Sgt. Bertram or not, I find it does not affect my assessment of this case. Indeed, if Officer Arnem did say to Sgt. Bertram that Mr. Singh “ran”, it could just as easily corroborate the fact that Officer Arnem believed at the time that Mr. Singh was ignoring police commands to get on the ground and was trying to evade the police.

[54] The volatile and dangerous nature of this arrest was clearly in the mind of every officer on scene, who independently drew their weapons. While there was no physical indicia of Mr. Singh having a weapon, the concern that a potential car thief might have one was reasonable. As Justice Croll noted in Dobbs at paragraph 32 “the law does not require an officer in these circumstances to ‘wait and see’ if the end result is a weapon”.

[55] I find that Officer Arnem’s belief, inferred from the circumstances of the arrest, were both objectively and subjectively reasonable and therefore in using force to arrest Mr. Singh, he was acting on reasonable grounds. I also find that the amount of force used was not excessive in the circumstances.

[56] To summarize, I looked to the factors to consider, as articulated by Justice Kelly in Montsion at paragraph 419, in coming to this decision:

• It was an urgent situation. Mr. Singh was moving away from Officer Arnem, towards another officer and he had not yet complied with any of the commands to get on the ground. Again, I recognize that one possible scenario was that Mr. Singh was trying to get away from the barking dog and had no malicious intent in moving away and towards another officer. In the rapidly unfolding situation, however, Officer Arnem did not have the time to try to ascertain Mr. Singh’s intentions.
• On at least some level, Mr. Singh was refusing to comply with police commands. Again, this may have been because of the fear of lying down in front of a barking dog, but it was nonetheless reasonable for Officer Arnem to believe at the time that he was moving away and not complying.
• Officer Arnem had only seconds to react once Mr. Singh started to move away. The time from opening the door to Nitro biting Mr. Singh was about 11 seconds. The time that Mr. Singh was out of the car and started to move towards Constable Ewan and the front of the car was about two seconds.
• The information known to Officer Arnem at the time of the arrest was very limited. He knew the car was stolen and there was little dispute at this trial that this was a high-risk takedown. It was important to get Mr. Singh under control as soon as possible.
• Officer Arnem, according to the agreed statement of facts, was an officer for approximately 29 years at the time of the incident and had been with the K-9 unit for approximately 8 years.

[57] Upon reviewing the video, again from the comfort of a courtroom and after the trial, in my chambers, I could conclude that Mr. Singh may not have been a serious threat at the time. This is particularly true once it is learned that Mr. Singh never had a weapon on him. But as our Court of Appeal has been careful to point out, just as “it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions”. (See Golub at paragraph 44).

[58] It is also important to remember that Officer Arnem, at the time of the arrest, had only one use of force option available in the split second that he made his decision. That use of force option was Nitro. As noted by the Crown witness Officer Anderson, Officer Arnem could not have reached for a baton, or a taser or even attempted to tackle Mr. Singh. He had to maintain control of Nitro, and fumbling for those items was not a viable option.

Conclusion

[59] I find that at the time of arrest, Officer Arnem used a reasonable amount of force to affect the arrest of Mr. Singh. I make this finding using the modified objective test. In other words, I looked to what a reasonable officer in similar circumstances to those faced by Officer Arnem would have done and find the use of force to be reasonable. This assessment takes into account not only the external conditions including urgency and the imminence of the threat, the risk posed by the threat, the time to react, the unknowns and limited information available, but also such factors as the knowledge, training and experience of Officer Arnem.

[60] In finding that the use of force was not excessive, I also considered that Nitro acted as he was trained to do. Once Mr. Singh was under control, Nitro was removed from Mr. Singh’s leg to prevent any further injury. Other officers then attended to Mr. Singh’s injuries immediately.

[61] I want to emphasize again that, despite the ultimate finding of not guilty, it is important that this case was brought to trial. Officer Arnem, I am sure, would have preferred it had not resulted in criminal charges. It is undoubtedly stressful for an officer to face criminal charges and have his or her conduct scrutinized to this degree. But it is important that Mr. Singh and the public see that the actions of the police are not without scrutiny. This is the point of section 25 of the Criminal Code, and it is important that officers understand that their actions when dealing with the public are monitored and reviewed. Yes, they are given latitude to account for the very dynamic and dangerous situations we, as the public, ask police and other front-line workers to step into. But we are not a policed state, and we do not condone unreasonable uses of force, no matter how reprehensible we may think a person or their alleged crime may be.

[62] When someone like Mr. Singh is injured, it is incumbent upon the criminal justice system to review the circumstances leading up to that injury, and when necessary, ask a court to decide if the amount of force used in those circumstances was reasonable. That is what was done in this case, and I find that in this case, Officer Arnem was justified in his use of force that day.

[63] Much of this trial was spent looking at the video of the incident in question, frame by frame and zoomed in. This process is certainly helpful to get a clearer look at what took place, and to assist in making factual findings. With respect to assessing the reasonableness of the use of force, however, there is a danger that one could be led astray into the “Monday morning quarterback” situation. Officer Arnem did not experience this incident in slow motion. There was no pause button. When watched in its entirety, the whole encounter is only 30 seconds long. The part where Mr. Singh is out of the car and moves towards the front of the car is about 2 seconds. That is the time Officer Arnem had to make a decision.

[64] At the end of the day, the Crown has failed to disprove the elements of section 25(1) of the Criminal Code beyond a reasonable doubt. The injuries sustained by Mr. Singh are unfortunate, but I find that Officer Arnem acted reasonably throughout and was justified in deploying Nitro to assist in the arrest of Mr. Singh. The force used was not excessive.

[65] For those reasons, I find Officer Arnem not guilty on both counts.

Released: January 22, 2024 Justice B.G. Puddington