Banff judge rules RCMP tasering incident excessive force

I have a question: When will charges be laid against the involved RCMP officers for unlawful arrest, giving deliberately false evidence, use of excessive force and failure to acknowledge a friendly high-five??

January 28, 2009
By Tanya Foubert, Rocky Mountain Outlook

A Bow Valley resident was acquitted of charges of obstructing a police officer after testimony and evidence at his trial revealed he was wrongly arrested and Tasered multiple times, including while in handcuffs.

Judge John Reilly found Adam Dormer not guilty Monday, dismissing an obstruction charge and a bylaw ticket for being a nuisance.

The judge said his finding was based on the fact officers had no right to arrest Dormer in the first place and that he was subjected to excessive force when Tasered while in handcuffs, which under section 12 of the Charter of Rights and Freedoms is considered cruel and unusual punishment and grounds for a judicial stay.

“I am not even sure, on the basis of what I hear here, there was a justification for arrest at all,” Reilly said. “If you do not have an established right to cuff him in the first place, he’s got every right in the world to resist.”

He also issued a stern rebuke to Banff RCMP Const. Casey Murphy, whose evidence he called “deliberately false.”

Reilly accepted photographic evidence presented by defence attorney Tyson Dahlem of Dormer’s back after he was Tasered on July 21, 2007.

Dahlem presented a series of photographs depicting five separate sets of burn marks on his client’s back. Each set consisted of two evenly spaced, small contact-burn points, which result from a Taser being used on stun mode and held in direct contact with the body, releasing an electrical current to an isolated area.

“The use of a Taser in this circumstance was grossly disproportionate to the situation he was arrested for,” he said.

Dahlem informed the court he made two unsuccessful disclosure requests for readouts of a report from the Taser, the X-26 model, that would indicate how many times it was fired on that date.

“There is a significant divergence in testimony vis-a-vis Mr. Dormer and his friends versus the officers,” Dahlem said. “The way to answer this question is if the Taser deployment report is produced. This is something easily in the possession of the RCMP and obviously relevant and would resolve the issue in its entirety.”

Dormer, a 26-year-old carpenter and resident of Exshaw, testified that he and two friends, Brad Wallwin and Nicholas Fysh, were traveling toward the HooDoo lounge from the Aurora nightclub giving random people high fives.

He said when he encountered Const. Murphy he offered him a high five, which did not go over so well. He then offered a low five, and when that failed, Dormer said he tried to express to the officer that he has a lot of respect for what the RCMP do.

He said he told both officers his brother is training to join the force and attempted to shake Murphy’s hand, which was refused.

“After he wouldn’t shake my hand a second time, I took it as offensive,” Dormer said, adding he told Murphy his refusal is one of the reasons why people view cops as “f (expletive) pigs”.

“I do not think I was being verbally abusive… I was being truthful,” he said under examination by Crown Prosecutor Doug Simpson.

Dormer said after being Tasered twice while being put into handcuffs, the weapon was discharged another three times while Murphy held the Taser to his back and pushed him toward a police cruiser.

“I was Tasered five times… you feel it when you are Tasered,” he replied when asked how he knew the number of times the weapon was deployed.

Wallwin testified he could see Murphy holding something into Dormer’s back as he walked away. Fysh said Dormer yelled out in pain as he was being taken to the cruiser and said he was being Tasered.

Const. Murphy testified to a different sequence of events that night, which began just after 1 a.m. He said while on foot patrol on Banff Avenue with Const. Marc-André Fournier he noticed Dormer and several friends on the other side of the street crashing into blue fences set up along the street to separate a major road and infrastructure replacement project.

Murphy said he noticed Dormer because of his height, which is 6 foot 9, and a red sweater he was wearing.

He said a female approached them and asked if the officers could escort her to the HooDoo lounge because she was scared of a male, whom she identified as being a very tall male wearing red.

Murphy indicated that while walking the female toward the club, she pointed out Dormer, saying he bothered her earlier by trying to lift up her skirt and because she was wearing no underwear, she was scared. He and Fournier testified neither of them obtained her name before she disappeared into the club and that she insisted she did not want to file a complaint.

After that is when Murphy said he encountered an intoxicated Dormer on the sidewalk.

“I directed him to go home, he had been drinking and I was going to leave it at that,” he said, adding he put it to the accused that he had been causing a disturbance and bothering the unidentified female.

Dormer, Wallwin and Fysh all testified Murphy did not mention the woman or her complaint.

Murphy said he refused to shake Dormer’s hand and as a result the conversation turned into an argument, with the accused yelling and swearing and becoming aggressive, calling them “f (expletive) pigs.” He said he warned Dormer multiple times to stop yelling and call it a night.

The officer testified that, because of the noise Dormer was making and the complaint made by the unidentified female, he decided to place him under arrest for causing a disturbance. He said Dormer became combative and when he would not cooperate, he was warned he would be Tasered.

Dormer was not charged with causing a disturbance, but ticketed under a Banff bylaw for behaviour that could likely disturb another.

Dormer and the two defence witnesses, however, testified Murphy did not place him under arrest, but instead threatened him with going to jail. “At no time was I told I was under arrest, I was told I am going to jail,” Dormer said.

Witnesses also testified Dormer was not intoxicated; in fact, he had consumed no alcohol that day or night. “I was the designated driver, I do not drink when I drive,” Dormer said.

The defence witnesses also testified Dormer was not yelling or being verbally aggressive with Murphy, but said he was getting attitude for something blown out of proportion. “I could tell the police officer did not like the remarks,” said Wallwin about Dormer’s comments. “It was like we were getting attitude the whole time.”

Murphy said he cycled the Taser twice, once on Dormer’s lower right back and once on his upper left shoulder for five seconds each time and only in order to get handcuffs on him.

He added after he was handcuffed, Dormer was cooperative and as a result Murphy said he was lenient in charging him with a bylaw ticket instead of a charge under the criminal code.