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A Defence lawyer's perspective on issues in criminal law

Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics.  Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject.  My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical.  If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading!  Happy watching!

 


The Swing-Hook-Weapon Justification

Posted in ASSAULT, Tagged Criminal Defence Blog

November 14, 2020

lucky to be alive

This video from which this still was captured is hard to watch; really hard to watch.

Calgary criminal lawyers Blog Luck to be alive 

https://www.cbc.ca/news/canada/calgary/calgary-police-alex-dunn-assault-trial-video-1.5777524

To have a visceral reaction is an understatement.

According to the CBC, Dalia Kafi was arrested and in custody for allegedly breaching curfew. Her punishment for possibly committing an administrative offence – being out late – was truly punishing.

In the opinion of this Calgary criminal lawyer, Ms. Kafi was lucky to have only suffered a broken nose and busted lip; she was lucky not be brain injured or worse: dead. 

chambering a metaphorical bullet

The aggressive smashing of Ms. Kafi’s head and face onto a concrete surface while her hands were behind her back was nothing short of a kind of coward’s act, where the police officer chambered a metaphorical bullet. This was nothing less than a game of Russian Roulette – played with the life of Dalia Kafi. In my opinion, the Calgary Police Service member, Cst. Alex Dunn, is lucky not to be facing a manslaughter charge.  Even if he is convicted of assault causing bodily harm (an outcome of seeming inevitability that in no way falls at the feet of his lawyer), he should count himself lucky.

Beyond Ms. Kafi, however, there are more people who we can count as unlucky.  For example, the citizens who police are employed to serve and protect.  For us, this is yet another terrible interaction between police and citizen where the citizen got the worst of an unnecessary encounter.

Also unlucky, the many good Calgary Police Service members who have been unfairly tarnished by the broad-brush of this grotesque use of force.  With respect to the broad-brush, I remind my handful of readers that not every police officer treats persons in their custody the way Cst. Dunn treated Ms. Kafi . I remind everybody that a great many police officers perform a difficult and often frustrating job with a level of grace that is nothing short of heroic.

The case of Delia Kafi, however, is not one of grace, kindness, respect, pride, heroism or in my opinion, reasonableness.

According to Staff Sgt. Gordon McDonald (a member of the CPS), this was the worst use of force he had seen. I imagine this may have been the worst use of force he had heard.  

"There's only one type of sound when somebody's bone hits the floor and that's what I heard”, testified McDonald.

thank goodness for the video

As with many complaints involving excessive use of force by police, it’s the video that’s telling.  Thank goodness for video.

I say "thank goodness for the video"  because in my experience, police using force often report all kinds of justifications – sometimes excuses bordering on the absurd - for using force.  Experience suggests that in most instances, absent video, an accused’s version of events is vulnerable to being discounted, marginalized or rejected in its entirety.  This is so because as compared to police, accused are the antagonists -- the villains; by contrast, police the heroes.

In the opinion of this Calgary defence lawyer, the greater the excessiveness of force, the greater the likelihood a questionable excuse for its use.

I don’t think I am out of line to say that in the view of many criminal defence lawyers in Alberta and elsewhere (including me), it is not unusual to read police reports and police notes that do not correspond with the version of events offered by other sources (such as independent witnesses or even video). To that end, I have reviewed cases where police notes appear to be little more than creative ex post facto justifications for brute conduct. The most common justification: “officer safety”.

violence a last resort

Over my nearly two-decades of practice, I have come to view the phrase “officer safety” with extreme cynicism.   To me, it is all too often used as a kind catchphrase to justify violent or unreasonable behaviour on the part of law enforcement.  To be fair, sometimes the use of force was reasonable or even necessary; sometimes, however, not.

I am a person who strongly believes that the most peaceful members of our society should be police. Police should be agents of comfort; heroes who rise above the ordinariness of the rest of us.  Police should be brave folks who put themselves on the line to such an extent that violence is always considered a last resort, not a first.   I understand the job of police is to deal with some rough people, but even when facing them, respectful and peaceful solutions should be preferred to violence. 

“Last resort” means that it’s not the police who engage with unreasonable physicality; it’s not the police who inspire or instigate aggressive exchanges; and it’s not the police who are so frightened of the public they serve that every encounter sits on the precipice of violence. Where aggression is necessary, our police should be so above the common denominator that when it is used, it is always the lessor – only that which is necessary.

To me, if police are symbolic of violence, how can we expect the community they serve to be any different? How can our community take comfort in our police if they fear violence from them? Indeed, if our community fears police, how can law enforcement effectively serve the very people they are employed to protect?   Trust is gained through many small acts of respect, kindness  and reasonableness and seriously damaged in a moment. With all this in mind, it is my opinion that if there is anybody in our society that must lead by example, it’s our police. A difficult job indeed, but a crucial one.

From watching the video, I am of the view that what happened to Ms. Kafi is not the example that police should be to our community. I say that the violence used by Cst. Dunn was not the lessor – it was not reasonable or responsible -- rather, it was a "split second” reaction of the basest, lowest common denominator.

differential treatment

Notwithstanding police choose to do a potentially dangerous job and though they are given weapons, training and other equipment to assist them in the line of duty; and often, as in the case of Ms. Kafi, are supported or in the presence of other officers, similarly equipped and trained, some police are apparently so scared – so frightened – that they perceive the need to use force in highly questionable circumstances.

To my mind, there is a very reasonable argument that some use of force cases are not all about officer safety, but are more a reflection of a violence first police culture that has over the years has gone largely un-redressed by the actions or omissions of law enforcement, prosecuting agencies, defence counsel and the courts. 

What is encouraging about Ms. Kafi’s case is that the actions of Cst. Dunn appear not to entirely fall into that unfortunate "un-redressed" category. I say "not entirely" into this category because it is noteworthy that this event took place sometime in 2017.  I can tell you with a high level of confidence that if an ordinary citizen slammed a person to the ground in the same way and in the similar circumstances to Cst. Dunn, it is highly unlikely that the case would be tried three-years later.

The delay in Cst. Dunn’s case was very likely because he was internally investigated prior to being criminally investigated. I suspect that the internal investigation took upwards of 12 months to complete (an amount of time that would never be afforded to an ordinary person). Once the investigation was completed, the case probably went to a Crown Prosecutor who was tasked with deciding whether there was sufficient evidence to charge Cst. Dunn with a crime. Again, a courtesy not afforded to ordinary citizens.

Why do I say this? Because I know from experience how police unreasonably delay investigating themselves.

Baked into self-investigation delay, unlike every other citizen, police officers accused of crime are also permitted to review evidence prior to responding with their own statement. In other words, they are allowed to tailor their evidence – yet another courtesy obviously not available to an ordinary accused.  

Finally, knowing that this case has been ongoing for three-years and knowing that R. v. Jordan sets the ceiling in Provincial Court for unreasonable delay at 18 months, I am very confident in my opinion that there was a long delay afforded to Cst. Dunn prior to his case coming to trial. I say this because it does not appear that Cst. Dunn advanced an unreasonable delay argument. This long delay was obviously to the disadvantage of evidence dependent on memory – such as that of Ms. Kafi.

So when I say it is encouraging that Cst. Dunn’s actions do not appear to fall entirely into the protected category, the reality is, he very likely benefited from an inequitable procedure that treats police who are investigated for crime different than you and I. This Calgary criminal lawyer seriously questions any criminal law procedure that sees one group treated differently than another.

eye of the video

Let’s reflect on the story of Delia Kafi.

Cst. Dunn apparently needed to use what I would characterize as life-threatening violence against a petite girl, about half his size, to pile-drive her defenceless body face-first into a concrete floor. He did so because, as the CBC reported, he “feared” she had slipped her handcuffs and would use them as a kind of “swinging hook weapon”.  Put another way, Cst. Dunn feared that Ms. Kafi had slipped the very cuffs he shackled to her and would use the very implements he provided to embarrassingly batter him in the presence of what I can only imagine was several, if not dozens of other police officers. Effectively, Cst. Dunn claimed “officer safety” as his excuse for assaulting and injuring his detainee.

At the outset, I think it is important to keep in mind that violence is often a product of an emotional reaction rather than a rationale one.  In fact, I suspect that if we could rewind to the moment when Cst. Dunn slammed Ms. Kafi to the ground and magically meld our mind with his, we would learn the truth: that his reaction was more closely synonymous with boiling frustration than fear or rationale thought.  The video capturing the incident supports my suspicion.

Cst. Dunn’s defence lawyer was mostly correct when he stated: “as clear as [the video] is, [it] doesn’t tell a whole story — it never does.”

https://globalnews.ca/news/7428588/closing-arguments-calgary-police-assault-alex-dunn/

Leaving open the question as to whether a video can tell the “whole story”, my position is that the eye of the video captures and preserves what it sees.  Beyond the video images, there is often a lot of room for interpretation; the clearer and more complete the video, the less room there is for interpretation. Though I suspect that video will often fail to capture thoughts and emotions, I can’t say this is impossible.  

By itself the video clearly tells us the following things:

 

  1.     When Ms. Kafi is first sighted by the video, her hands are clearly cuffed behind her back.
  2.     She has dreads.
  3.     She walks on her own into a small hallway and leans her back against a wall.
  4.     After a couple of seconds, Cst. Dunn uses he left hand to grab at what appears to be a scarf or headband; Ms. Kafi recoils from his attempt to remove the scarf.
  5.    Cst. Dunn appears to place his left hand on Ms. Kafi’s back area. We lose sight of his left hand..
  6.    Cst. Dunn then uses his right hand to try and pull off the headscarf.
  7.    Ms. Kafi moves her head around for a few seconds while Dunn continues to pull at the scarf.
  8. After a brief exchange where Ms. Kafi’s hands never move from back to front, Cst. Dunn then throws her to the ground by powerfully moving his arms upwards in a circular motion, with a trajectory going above Ms. Kafi’s shoulders
  9.    As as result of the trajectory, Ms. Kafi is thrown forward face-first to the ground. 
  10.       Within a second, we see that Cst. Dunn appears to have control of both Ms. Kafi’s hands, which remain behind her back.
  11.    Ms. Kafi's head narrowly misses a wall, but her face slams onto the concrete floor.
  12.    Ms. Kafi is then prone on the concrete, with Dunn straddling her and controlling her right arm. The handcuffs seem to have slipped from her wrist to her forearm, but both hands remain shackled.
  13.   Cst. Dunn then stands over her for greater than 20 seconds.  He does not appear to make any attempt to assist her. 
  14.   Another police officer walks into view.
  15.    Cst. Dunn disengages while the other officer tries to help Ms. Kafi to her feet.
  16.   Ms. Kafi’s nose appears to be bloody. Blood is spattered on the floor.

From viewing the video, you might wonder: with all the technology we have available in the 21st Century, how is that a modern-day police station does not have both audio and video?  In this case, audio would have obviously assisted the fact finding process.

yanking at the headscarf 

Very little was made about this in the news media. I didn't like this.

From reviewing the news report, I was left with the impression that Ms. Kafi was being, for lack of a better characterization, quite lippy with Cst. Dunn.   I suspect she was uttering some choice words to the officer throughout much of the investigation and accept that her words likely became much more vitriolic while he was attempting to pull off her headscarf. Her words in response to Cst. Dunn yanking at her headscarf, however, may not have been misplaced; for it is clear from watching the video that the headscarf may have been tangled or wrapped in her dreads.  Even if it wasn't, Cst. Dunn still owed Ms. Kafi more respectful treatment than a one-hand yanking at an item of clothing on her head.

Though I appreciate that the police were required to seize and check Ms. Kafi’s property, I am quite certain there was a better way of removing the headscarf than disrespectfully tugging at it.  This behaviour alone signals to me a degree of aggression by the arresting officer.

Sticks and stone

I am cognizant that police often have to endure a lot of antagonizing behaviour from the citizens they serve.  I am aware that the vitriol directed towards them is often undeserved. Regardless, their uniform and office means that police must always behave with tolerance and patience beyond the ordinary citizen.  Therefore, no matter how hurtful or severe Ms. Kafi’s utterances may have been, they did not warrant the treatment by Cst. Dunn. To me, this treatment includes the manner in which Dunn tugged at her headscarf. 

As children, we have all heard the phrase: “sticks and stones may break my bones, but names will never hurt me”.  Where children are taught this lesson and adults share the lesson, police must embrace the lesson.

fear not a carte blanch excuse

Of course, Cst. Dunn did not claim frustration or hurt feelings as his reason for slamming Ms. Kafi to the concrete.  He knew better than that.

In essence, he claimed sticks and stones as his excuse for the “dynamic takedown”. He “feared” Ms. Kafi managed to slip her handcuffs and in so doing managed to arm herself with a swinging-hook-weapon.

Cst. Dunn’s description of “fearing” that Ms. Kafi had slipped her handcuffs is important; for it makes clear that he did not actually know whether she slipped her cuffs.

Fearing something doesn’t mean the fear is real or even reasonable.  I interpret Cst. Dunn’s “fear” to be more consistent with the “possibility” that Ms. Kafi had slipped her handcuffs, not the reality that this had actually happened.

People “fear” all kinds of things. Some fears are rationale, some are not.  Just because a police officer is scared doesn’t mean his or her trepidation is rationale. Furthermore, just because an officer is scared doesn’t mean there is a rationale or meaningful threat to officer safety. Indeed, if subjective fear was all that mattered, police could use force in each and every encounter.   Finally, just because a police officer is afraid doesn’t mean that they have carte blanche to use any manner of aggression or any degree of force they determine to be fit – the use of force must always be reasonable.

self defence

As an aside, I appreciate that a person acting in self-defence need not measure the nicety of his or her blow. I appreciate that a person acting in self-defence has no duty to retreat. That said, self-defence law also recognizes that the violence used to defend oneself must be reasonable. Unreasonable self-defence is not an excuse.

Now, I don’t want to get to0-far off track; for Ms. Kafi never assaulted Cst. Dunn, so self defence does not directly apply. In fact, it was Cst. Dunn who arguably initiated the assault against her by yanking at the item in her hair. Arguably, it was Ms. Kafi who used reasonable self-defence by recoiling from Cst. Dunn’s aggressive pulling at her headscarf.

Notwithstanding that self-defence does not appear to apply to Cst. Dunn, it is nevertheless an important consideration because it reminds us that the force used to repel an attack must be reasonable.

In this case, it was not reasonable for Cst. Dunn to repel an attack that never happened by slamming Ms. Kafi to the ground (face-first or otherwise) based on what I characterize (from watching the video) as an irrational fear that she had  “slipped out" of the very handcuffs he provided and would use them as a weapon. In short, this body slam went too far.

the swing-hook justification

Watching the video, it’s hard to fathom how Cst. Dunn’s judo styled throw of Ms. Kafi was reasonable.

For the moment, however, let’s give truth to Cst. Dunn’s version, that he actually feared Ms. Kafi had slipped her handcuffs.

So what?

Section 25 of the Criminal Code of Canada tells us that whenever police use force, the force used must be both reasonable and necessary. This begs the question: why was it necessary to slam Ms. Kafi to the floor? 

Additionally, though Cst. Dunn’s lawyer astutely pointed out that Cst. Dunn reacted in a “split second”, this timing in no way authorizes him to use unreasonable or unnecessary force.  I agree that Cst. Dunn was reacting in the moment, but from watching the video, I am of the view that this in no way authorizes unreasonable use of force.  Of course, I think all of us can imagine other reasonable alternatives to the brutish and potentially life-threatening option that Cst. Dunn chose.

From watching the video, however, it’s difficult to argue with this statement by the Crown.

Dunn's account of what happened "defies physics, it defies anatomy, it does not reconcile with reality.

"None of this happened, it couldn't have happened."

Evaluating the video, it appears the Crown is right.  

I say this for the following reasons.  Firstly, if a person had really slipped a handcuff, it makes no sense that they are going to fight off their captor by keeping their hands behind their back. That simply doesn’t make sense.  Cst. Dunn never faced direct threat of Ms. Kafi's hands.

It may be that Ms. Kafi’s handcuffs “slipped”, but slipped off?  No. There is a difference between a handcuff "slipping" and a handcuff "slipping off".

Even if Ms. Kafi’s hands slipped-out and she was fighting Dunn with both hands behind her back, the threat of an effectively armless fighter was not so grave that Dunn needed – even in that so-called split second – to use a potentially life threatening judo throw to subdue her.  As an aside, from watching the video, I am not sure I agree with Dunn's account that this was a "split second" and even if it was a "split second", perhaps in these circumstances, he needed to take an additional second to rationally evaluate the threat. 

Cst. Dunn’s defence lawyer argued that the video doesn’t tell the entire story.  I have no trouble accepting this as true.  I am also quite certain that he effectively argued that Cst. Dunn’s evidence should be believed and if not believed, should leave reasonable doubt.  Cst. Dunn certainly has a voice in his defence and his voice should not be ignored. 

Sometimes, however, there is a difference between the words we are asked to accept and that which is plainly obvious. To that end, it was Cst. Dunn who was responsible for disrespectfully tugging at Ms. Kafi’s hair. It was Cst. Dunn who continued the initial physical exchange when Ms. Kafi recoiled from him. Ms. Kafi’s hands never moved from her back to her front.  Cst. Dunn must have known this.Reason and common sense tells anybody that fighting with hands-behind-the-back is not only an unlikely self-defence technique, but an inadvisable and ineffective one. Since Ms. Kafi had her hands behind her back, violently throwing her defenceless and face-first to the concrete was neither necessary nor reasonable.  

Based on the totality of the circumstances, even if Cst. Dunn surmised Kafi had somehow escaped and would use his handcuffs as a swinging-hook-weapon, it is the opinion of this Calgary criminal lawyer that based on the video and news report, he was not justified in using the force that he did.  

conclusion

Keeping in mind the place where this occurred, ask yourself this wicked questionable little question: If Cst. Dunn was prepared to use this technique, with this level of force against a petite girl in handcuffs, while in a police station and while in the presence of cameras and other officers, what is he prepared to do to people on the street?  

My guess, while protected by the relative privacy of the street, much worse.

At the end of the day, this case will be decided by a judge who has a lot more evidence that we have been provided by the CBC. That said, even if Cst. Dunn delivered, as we might expect a professional witness to do, unwavering evidence that he feared for his safety, it is the opinion of this Calgary criminal lawyer that though the video may not tell the entire story, it very likely tells most of it.  I am not saying there is no path to an acquittal, but based on what I see, it is a difficult one.

Again, all of us need to keep in mind that there is likely more to this case that has been reported by the media. As bystanders, looking from the outside in, we can only adjudicate on the information we have been provided with. To reiterate, however, the video is a powerful witness.

As reported by the CBC, Cst. Dunn was paid by the taxpayer while suspended from duties for a year. He is now back at work.  From watching this video, I seriously question whether Cst. Dunn is the kind of police officer we want on city streets. I question whether he is the kind of person we can trust to carry a badge, a gun and the responsibility of “peace officer”.  

If it’s true that “[i]In general terms, police officers are trained to de-escalate conflict and to use the least amount of force necessary to safely resolve a situation” and if it’s true that the Calgary Police Service expects its members to follow the law,  CPS policies and officer  training, then it seems to me that the CPS must be true to itself. If the CPS is being true to itself, why is Cst. Dunn still an active member?  

These are only my thoughts and opinions. Should other information be provided to me that meaningfully adds to the story, I would be happy to add to this article. 

 

David Chow

Calgary Criminal Lawyer


David Chow is an Alberta criminal lawyer.  If you are researching Calgary criminal lawyers or are charged with a crime anywhere in Alberta, David Chow would appreciate the opportunity to earn your business. David Chow defends all charges, including offences of violence, drug offences and domestic violence cases.


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This entry was posted in ASSAULT, tagged Criminal Defence Blog and posted on November 14, 2020


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