A staff sergeant with the Langley RCMP has been convicted of assaulting a suspect while he was being booked into custody at the detachment holding cells on Aug. 17, 2020.
Justice John Gibb-Carsley rejected the testimony of S/Sgt. Damian Volk during the trial and relied instead on extensive video evidence from inside the Langley detachment, he said in a ruling issued on Tuesday, Oct. 28.
The judge said that the crux of the case was whether Volk’s use of force was “necessary, reasonable, and proportionate in the circumstances.”
The incident leading to the assault began when police received a call that a man had stolen some items from the local Home Depot and fled in a taxi. Dalibor Kuzmanovic was arrested that night at 8:40 p.m. on suspicion of robbery, while in the same taxi seen leaving the hardware store.
Const. Kyle Pfeiffer, one of the officers who was present at the arrest, said that Kuzmanovic wasn’t cooperative, and was passively resisting. There was no struggle, but the officers had to pull him out of the taxi physically, and that he seemed “placid” and “flat.”
Kuzmanovic was searched during his arrest, and police took a multi-tool folding knife off of him. He was driven to the detachment and brought in with his hands cuffed behind his back.
At the detachment, Volk, who was a senior officer and acting as watch commander at the time, was brought in to supervise the booking process.
Const. Michael Dee began another search of Kuzmanovic in the booking area at the detachment in Murrayville. According to Gibb-Carsley’s ruling, Volk took over the search from the more junior officer. Volk and Kuzmanovic appeared to exchange some words, and Kuzmanovic shifted away from him.
According to witness testimony, Kuzmanovic questioned the need to search his shorts again, and some witnesses described him as “mouthy” or swearing at this point. However, Dee testified that to this point Kuzmanovic had been cooperative.
“Mr. Kuzmanovic appears to say something and slightly shrugs his shoulders,” Gibb-Carsley wrote. “The accused [Volk] pauses briefly and then grabs Mr. Kuzmanovic’s right hand and grabs Mr. Kuzmanovic’s head with his left hand and forces him to the ground with what has been described as a controlled takedown maneuver.”
The grabbing and takedown was what the Crown argued was assault.
After the takedown, a constable helped Kuzmanovic back to his feet. He was later uncuffed, photographed and fingerprinted, given a phone call, and then strip searched and put in a cell with a white paper suit to replace his clothing.
Gibb-Carsley noted that Volk testified that he believed he faced a threat of being assaulted by Kuzmanovic.
“Given his perception of the threat, he acted to take Mr. Kuzmanovic to the ground using a controlled takedown,” Gibb-Carsley wrote.
Volk said Kuzmanovic was irate and screaming in his face, and that he expected that situation to escalate.
But Gibb-Carsley said the video evidence did not support the finding that Kuzmanovic was as aggressive as Volk testified he was. Volk’s subjective belief that he was in danger was not objectively reasonable, the judge ruled.
“I accept that policing is an extremely difficult job,” Gibb-Carsley wrote. “There was some evidence before me that officers regularly face verbal aggression from suspects. However, the resort to violence upon being questioned about an activity absent a reasonably believed threat should not be tolerated.”
He also praised Dee, the officer who came forward to express concerns about “something he perceived to be unfair, unjust, and improper.”
“I expect that taking those steps to come forward and testify was not easy given the hierarchical nature of police forces,” Gibb Carsley wrote. “I expect that taking the actions he did, required courage and conviction and a desire to improve policing. Without individuals such as Const. Dee, individual incidents can grow to become systemic issues and lead to society normalizing unacceptable behaviour.”