A Saskatchewan RCMP officer charged with assault after tackling an intoxicated man to the ground and shooting pepper spray into his face was found not guilty on Friday.
The incident happened during a traffic stop on Halloween 2020 in Arcola, Sask., according to court records.
Constable Dani Zaya pulled over a pickup truck driven by 16-year-old Damian Spry, the sober driver for his father Chris Spry and three others, Reesa Littlechief, Joseph Desjarlais and Charmaine Spry.
The other attending officer found open liquor in the vehicle, including open cans of Bud Light and Mike’s Hard Lemonade, the court records said.
What the witnesses agreed on, according to Judge Ross Green, are that Zaya forced everyone out of the vehicle and said someone is getting a ticket for open liquor, then started handcuffing everyone. When handcuffing Desjarlais, Zaya slammed him into the truck three times, then tossed him on the ground before using the pepper spray.
The following month, a complaint was made to the Carlyle RCMP detachment, and Zaya was charged and arrested in June 2021.
They say a picture is worth a thousand words, but in a court of law, those words will often depend on which side of the case you’re on.
When two police videos of the incident were played in court, without sound, Green says they were “viewed in sharp contrast by the Crown and defence.”
Zaya maintained Desjarlais was resisting arrest. He described Desjarlais stiffening his arm out to the side to make it harder to put the cuffs on and said he could feel Desjarlais’ muscles tense up as he pushed back against the officer when cuffed.
Desjarlais described being confused as to why everyone was being handcuffed over an open liquor ticket. He testified in court that he asked Zaya not to put the cuffs on so tight and that he pulled away when the officer grabbed his arm.
Green says Desjarlais and two other witnesses remembered hearing Zaya say “stop resisting” just before he threw Desjarlais to the ground.
After taking him down, witnesses said the other officer commanded them not to look.
In his testimony, Desjarlais maintained he wasn’t actively resisting. He said he was much larger than Zaya, so if we were actively resisting, Zaya would not have been able to pin him against the truck and slam his body down.
To the expert witness, retired Vancouver police officer Joel Johnston, the size of Desjarlais was one of the reasons the extra force was justified.
Desjarlais’ size, and the fact the passengers were intoxicated, contributed to the risk of the situation, he said.
“In dealing with a group of unknown individuals, when one of them is uncooperative and verbally challenges the officer, there is a huge concern that this behaviour can escalate quickly and dramatically to the others given the dynamics of an initial meeting which can easily get out of control,” Johnston said.
After handcuffing Desjarlais, Johnston says Zaya had three options: continue to talk to all the people, seek other officers to help, or respond physically by either taking him to the ground, striking him with his knee or hand, or leaving him alone.
Johnston described the physical takedown as the least harmful possible physical response in that situation.
Johnston also characterized the use of pepper spray once Desjarlais was on the ground, hands cuffed behind his back, as the lowest level response, even though Zaya still had the option to talk to Desjarlais and get him to comply.
What’s clear in Green’s April 14 decision is that officers have wide latitude when it comes to applying physical force.
In making the case for assault, the Crown had to prove beyond a reasonable doubt that Zaya used more force than necessary — a condition close to absolute certainty.
“While it is entirely possible that a more experienced police officer could have handled the situation with Mr. Desjarlais in a different way, or with less force, the question I must ultimately answer is whether I am satisfied beyond a reasonable doubt that the actions of Cst. Zaya were not justified,” Green wrote.
Given the intoxicated state of the passengers, Desjarlais’ size, and the initial reluctance to comply with Zaya’s commands, Green says he was left with a reasonable doubt, and he had to find Zaya not guilty.
