Multiple use of Taser ruled excessive - judge slams Mountie in Banff arrest

January 29, 2009
Sean Myers And Tanya Foubert
Calgary Herald

RCMP and the Crown are looking into the case of a Banff constable who Tasered a man multiple times while arresting him, after a judge ruled the officer was not justified in handcuffing him in the first place.

Provincial court Judge John Reilly accused arresting officer Const. Casey Murphy of using excessive force and giving "deliberately false" evidence during the trial on a charge of obstructing a police officer.

Exshaw resident Adam Dormer, 26, was found not guilty on Monday and will not have to pay a bylaw fine issued for being a nuisance.

"We are aware of it," said RCMP spokesman Sgt. Patrick Webb. "The RCMP and the prosecutor are looking into it. We're waiting for a court transcript to ascertain exactly what was said. All we know is the judge did not rely upon the RCMP's evidence to make a decision," Webb said.

"My adrenalin starts running when I start talking about this," Dormer told the Herald of his arrest on Banff Avenue. "It may have happened a year and a half ago, but it feels like it happened yesterday." Dormer said he will consult with his lawyer before deciding what, if any, action to take next.

In court, Dormer claimed he was Tasered five times -- including three times while in handcuffs--in Banff on July 21, 2007.He presented photographic evidence that appeared to show five separate Taser burns on his back.

Murphy said he only Tasered Dormer twice when Dormer became unruly while he tried to handcuff him.

Dormer, a 26-year-old carpenter, testified that he and two friends, Brad Wall-win and Nicholas Fysh, were walking toward the HooDoo lounge from the Aurora nightclub, giving random people high-fives. He said when he encountered Murphy, he offered him a high-five and eventually a handshake after telling about his brother training to join the RCMP.

"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 police as "(expletive) pigs."

"I do not think I was being verbally abusive. . . . I was being truthful,"he told 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.

Murphy offered a very different version of events, which began just after 1 a. m. He said while on foot patrol on Banff Avenue with Const. Marc-Andre Fournier, he noticed Dormer and several friends on the other side of the street crashing into fences.

Murphy said he noticed Dormer be-cause he stood 6-foot-9 and was wearing a red sweater.

He said a female approached him and asked if the officers could escort her to the HooDoo lounge because she was scared of a man who had tried to lift up her skirt. On the way to the club, she pointed out Dormer as the man who was bothering her.

After the woman went in the club, Murphy said he encountered Dormer, whom he described as being intoxicated.

"I directed him to go home, he had been drinking and I was going to leave it at that," he said.

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.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 woman, he decided to place him under arrest for causing a disturbance.

He said Dormer became combative and when he would not co-operate, he was warned he would be Tasered.

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 to get handcuffs on him.

After he was cuffed, Murphy said Dormer became co-operative.

Defence witnesses testified the officers never mentioned the woman complain-ant and said Dormer had not consumed any alcohol.

"I was the designated driver, I do not drink when I drive," Dormer said.

Defence lawyer Tyson Dahlem told the court he made two unsuccessful requests to disclose the readouts from the Taser, the X-26 model, that would indicate how many times it was fired on that date.

The judge said his ruling was based on the fact the 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."

Several X26 model Tasers acquired before 2006 by RCMP and municipal police forces in B. C., Alberta and Ontario have been sent for testing under suspicion some may be generating more power than indicated.

The use of Tasers has come under increased scrutiny in recent years after Taser discharges were followed by death in a number of cases, including Polish immigrant Robert Dziekanski, 40, who died of cardiac arrest at Vancouver's airport in October 2007 after being Tasered five times.