Pubdate: Tue, 02 Dec 2008 Source: Observer, The (CN ON) Copyright: 2008, OSPREY Media Group Inc. Contact: http://www.theobserver.ca/feedback1/LetterToEditor.aspx Website: http://www.theobserver.ca Details: http://www.mapinc.org/media/1676 Author: Neil Bowen ARREST RULED UNLAWFUL Judge Acquits Local Man A Sarnia judge has acquitted a local man of resisting arrest during a standoff between the OPP and an angry bar crowd because the charge was based on an unlawful arrest. Justice Mark Hornblower issued his ruling following a trial that was spread over the past year because of the large number of witnesses involved. It involved multiple days of testimony and submissions. "We are here on a matter that should not have happened," defence lawyer David Stoesser said in his final submissions to the court in October. His 40-year-old client had demanded to know of a police officer what he was doing when he attempted to lead three women away from a Corunna bar in January 2007. The officer told him to back away or be arrested. The demands d the man was arrested and taken to the ground by the officer. The officer had arrested a women for possession of marijuana, but it never resulted in charges. One member of the crowd testified it was a "weird" situation. At first, a woman was put in handcuffs, but she was freed and walked into the bar when the man was led away in handcuffs. The officer based the women's arrest on a smell of marijuana around four people in the bar parking lot. A still unidentified man in the group ran into the bar. Hornblower said an odour is insufficient grounds on which to make an arrest, as shown by a Saskatchewan Court of Appeal decision. Instead of following his order to stay put, the women followed the officer to the bar where the officer was looking for the man who ran away. The officer was not in the execution of his duty when he tried to lead the women away and their arrest was unlawful, Hornblower said. Therefore, the 40-year-old man could not be arrested for obstructing or assaulting a police officer in the execution of his duty. Assistant Crown attorney Richard Weatherston had argued it was not for the man to determine if the women's arrest was right or wrong. His confrontation of the officer had exceeded what he was entitled to do, said Weatherston. During the man's arrest, additional officers arrived at the bar, where a hostile crowd watching the arrest led to an "extremely volatile and dangerous situation," Weatherston said. Arrival of additional officers quieted the crowd. A person cannot be convicted of resisting an unlawful arrest unless they use excessive force. The man's hand gestures that the officer testified about, including clenching his fists, are not an excessive use of force, Hornblower said. A disturbance was already underway due to the women shouting and the man's loud voice did not contribute to that disturbance, resulting in dismissal of a third charge of causing a disturbance. In his closing argument, Stoesser said the man had screamed only after his knee was injured by the officer's kick, which took him to the ground. - --- MAP posted-by: Larry Seguin