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Man Shot by Police Loses Appeal

Man Shot by Police Loses Appeal

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Man Shot by Police Loses Appeal

Man Shot by Police Loses Appeal

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Published by: Edmontonsun Onlineeditor on Jan 25, 2013
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09/17/2013

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In the Court of Appeal of Alberta
Citation: R v Davis, 2013 ABCA 15Date:
20130124
Docket:
1103-0114-A
Registry:
Edmonton
Between:Her Majesty the Queen
Respondent- and -
Percy Walter Davis
Appellant _______________________________________________________ 
The Court:The Honourable Chief Justice Catherine FraserThe Honourable Mr. Justice Clifton O’BrienThe Honourable Mr. Justice J.D. Bruce McDonald
 _______________________________________________________ 
Memorandum of Judgment of The Honourable Mr. Justice O’Brien andThe Honourable Mr. Justice McDonaldDissenting Memorandum of Judgment of The Honourable Chief Justice Fraser
Appeal from the Conviction byThe Honourable Madam Justice M.G. CrightonDated the 11 day of April, 2011
th
(Docket: 081329385Q1)
 
 _______________________________________________________ 
Memorandum of Judgment
 _______________________________________________________ 
The Majority:I. Introduction
[1]The appellant, Percy Walter Davis, was shot in the chest and neck during a confrontationwith a police officer outside an Edmonton shopping mall. Davis was later charged and convicted of  possession of a weapon (a knife) for a dangerous purpose, assault of a police officer in the executionof duty, and assault of the same officer with a weapon. He appeals these convictions and seeks a newtrial. He submits the trial judge erred by giving insufficient reasons and by failing to find that his
Charter 
rights were breached by the use of excessive force in effecting his arrest. For the reasonsthat follow, we dismiss the appeal.
II. Background
[2]The trial extended over several days and more than 20 witnesses were called. Some of thefacts were contested at trial. Relying primarily on the evidence of Cst. Myles Stromner, the officer who shot the appellant, the trial judge found as follows.[3]On August 8, 2008 the Edmonton Police Service received a report that a person armed witha butcher knife was riding a bicycle around the parking lot of the Abbotsfield Mall in Edmonton.Cst. Stromner was dispatched to investigate.[4]Stromner attended the mall and drove around the parking lot looking for the individual withthe knife. Along the way he spoke to two people, Barry Andrews and Jill Thomas, asking if they hadseen the person he was looking for. Both later gave evidence at the trial.[5]As he was about to give up the search, Stromner saw a young man riding a bike who matchedthe description Stromner had been given. This was the appellant. Stromner followed behind him inhis police car as Davis headed down 119 Avenue NW on his bicycle.
th
[6]Near the end of the street, Stromner sounded his air horn twice and activated the police car’semergency lights, but before he could get out of the car Davis charged the police car with a knifein his hand.[7]The driver’s side window of the police car was open. Seeing the knife, and believing hemight be stabbed, Stromner covered his head and leaned towards the passenger side of the vehicle.As a consequence he did not see what Davis did with the knife. When the stabbing did not occur,Stromner un-holstered his revolver, unbuckled his seatbelt, and attempted to get out the driver’s sidedoor. He met brief resistence, as Davis pushed back, but Davis quickly relented and Stromner wasable to open the door and get out. As he did so, he observed Davis forward of the door holding aknife over his head. In finding the attack occurred, as alleged by Stromner, the trial judge noted thatStromner’s evidence was confirmed by an eyewitness.
 
Page: 2[8]Once out of the police car, Stromner told Davis to back up and drop the knife. Stromner thengave a 10-13 emergency signal over the radio, an indication that an officer is in distress and needshelp immediately.[9]Davis picked up his bike and walked away. Stromner, with revolver drawn, followed Davisand shouted at him many times to drop the knife. Davis continued to walk away. At some pointDavis turned to face Stromner and Stromner pepper sprayed him in the face. Stromner perceived the pepper spray to have no effect. The trial judge noted that other witnesses made the same observation.[10]Davis continued to walk away, with Stromner following, revolver pointing at eye level,demanding that Davis drop the knife. At this point, Stromner updated his status over the police radio by downgrading the alert to a 10-17, an indication that an officer needs help but not as immediatelyas with a 10-13 alert. He continued to follow Davis, from a short distance, repeating the commandthat he drop the knife.[11]Davis was proceeding down the east side of Abbotsfield Road NW when he decided to crossthe road near the McDonald’s parking lot located on the west side of the street. McDonald’s is inthe southeast corner of the Abbotsfield Mall. Stromner advised police dispatch that he needed a taser as Davis was moving in the direction of the Mall where Stromner had earlier observed that peoplewere present. Stromner followed Davis over the median to the parking area at the back of McDonald’s.[12]Stromner was concerned by this point that they would soon reach a populated area, wherehis options in stopping Davis would be limited. Stromner had already determined that he would notlet Davis get near people while still in possession of the knife. When it became apparent that Daviswas not willing to drop the knife, Stromner decided to shoot. Davis turned to face him and raisedthe knife in the air. At this point, Stromner shot Davis twice in quick succession, once to the rightof the appellant’s Adam’s apple, and once in the right chest.[13]Two other police officers arrived at the moment of the shooting – Cst. Griffith in a policecruiser and Cst. Leblanc on foot. Davis remained standing. Leblanc gave a verbal direction to Davisto get down. After a few moments, Davis dropped the knife and toppled over onto his back.[14]Davis was taken to hospital for treatment. His injuries were life-threatening. He was later charged with the offences described above. The Alberta Serious Incident Response Team (ASIRT)conducted an investigation into the incident and exonerated Stromner.
III. The Trial Decision
[15]The trial judge made an initial assessment of the credibility of two witnesses – a civilianwitness, Mike Abdullah, and Stromner. Abdullah’s evidence set him apart from the other civilianwitnesses because he had testified, among other things, that a second police officer, Cst. Griffith,was at the scene at the time of the shooting. Davis did not testify at the trial.

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