Memorandum of Judgment
The Majority:I. Introduction
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
rights were breached by the use of excessive force in effecting his arrest. For the reasonsthat follow, we dismiss the appeal.
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.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.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.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.
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.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.