Judge criticizes Yukon RCMP officer for using excessive force in making arrest

'It is hard to believe that officer acted as he did,' says judge in acquitting man on resisting arrest charge.

'It is hard to believe that officer acted as he did,' says judge in acquitting man on resisting arrest charge

The 2016 New Year's Eve incident occurred in front of the Whitehorse Superstore when an RCMP officer arrested a man who had allegedly thrown a cheeseburger in the nearby McDonald's restaurant and tried to kick the restaurant manager. (CBC)

A Yukon Territorial Court judge has acquitted a Whitehorse-area man who was charged with resisting arrest, and delivered harsh words to the arresting officer who "just jumped him."

Harry Kevin Kolasch was accused of struggling with RCMP Const. Christopher Barr and grabbing at the weapons on the officer's duty belt, outside the Whitehorse Superstore on New Years Eve, 2016.

In addition to the resisting arrest charge, Kolasch was charged with possession of a stolen hat and DVD, and violating a probation order. Those charges were also dismissed.

The incident at Superstore began when the store was contacted and told police were on their way over to talk to Kolasch about an incident at the McDonald's restaurant next door. A Superstore security guard testified that he was told to ensure Kolasch did not leave the store until officers arrived.

The security guard, Tyler Schwalm, testified that Kolasch was "visibly intoxicated, unsteady on his feet, very agitated and he could smell alcohol on him." 

As he and Kolasch left the store, they saw an RCMP officer outside. Schwalm said Kolasch immediately began walking in the other direction. He said the officer tried to arrest Kolasch, and there was a brief struggle before the two fell to the ground between two parked vehicles.

Schwalm said he saw the officer hit Kolasch, but testified that he did not see Kolasch do anything to the officer.

The decision by Judge Nancy Orr was unusually critical of an RCMP officer in Yukon. (Chris Windeyer/CBC)

The officer, Const. Christopher Barr, testified that he was initially called to McDonald's after a man allegedly threw a cheeseburger at somebody and then tried to kick the manager.

He said that when he saw Kolasch walking away outside the Superstore, he followed and called out several times to Kolasch, "Police, sir, stop, you're under arrest," but was ignored. The officer said he grabbed Kolasch by the arm, and Kolasch pulled back. 

Barr said he then pinned Kolasch to a car and called for assistance. He said Kolasch tried to pull away so he took him to the ground. The officer said Kolasch then began to pull at items on his duty belt, eventually reaching toward his gun.

Barr said he applied "a significant strike" to the left side of Kolasch's face. He took a another swing, but noticed Kolasch had been knocked unconscious and did not follow through with the blow.

"He acknowledged that Mr. Kolasch had a two-inch gash on his left forehead, above his eye, which had significant bleeding," said the judge.

Barr himself suffered a swollen right hand and was examined at the hospital.

'No opportunity to react or respond'

Judge Nancy Orr noted that Barr described Kolasch's behaviour as violent. But she questioned the officer's version of the altercation.

She said surveillance videos showed that, according to Barr's testimony, during a 40-second confrontation he approached Kolasch, called to him several times, grabbed him, pinned him to the hood of a car and then took him to ground — during which there was no sign of Kolasch being violent or resisting.

"When you see this video, it is hard to believe that officer acted as he did. He gave Mr. Kolasch no opportunity to react or respond," said the judge.

She also wondered whether the Barr's haste in arresting Kolasch was motivated by the officer's being near the end of his shift.

"So whether his intention was that this was the end of his shift, which he never indicated, and that he was in a hurry to get home or to do other things or to assist in other matters was not clear — but he certainly acted with incredible speed and haste in the scenario that was being presented to him."

The judge found that Barr's arrest was not legal, and his treatment of Kolasch from beginning to end was not justified in the circumstances.

"He just jumped him," she wrote, saying the force used was excessive.

Orr also did not accept the officer's testimony that Kolasch attempted to grab his gun.

She also noted that the officer was much younger, much bigger, and much fitter-looking than the frail, intoxicated Kolasch.

The possession of stolen property charge was dismissed at the outset of the trial, after the prosecutor said there was "not any evidence of any sort to suggest any basis for that charge," Orr wrote in her decision.

Kolasch was also acquitted on the charge of violating his probation. Orr ruled that the evidence before her was that it was Kolasch who was attacked, not the officer.

The Public Prosecution Service, however, is disputing the judge's decision to acquit Kolasch on the resisting arrest charge.

It's appealing the acquittal. It says in a court document that Judge Orr erred-in-law when she ruled the arrest was not legal. It says the judge was also wrong to find that Const. Barr used excessive force.