Mountie accused of choking suspect found not guilty
Bethany Lindsay, ctvbc.ca
Published Monday, July 11, 2011 8:54PM PDT
A B.C. Mountie whom a fellow officer says choked a suspect until he went limp has been found not guilty of assault in Abbotsford provincial court.
Surrey RCMP Const. Joseph Paul Kane was charged after witnesses and another police officer watched him wrap his arm around suspect Bryan Pecchia's neck and lift him off the ground during a traffic stop on Jan. 14, 2008.
Kane was acquitted of that charge on Friday, after Judge Kenneth Skilnick ruled there was too much conflicting evidence to make a definitive finding of assault.
"All that can reasonably be concluded is that the accused demonstrated a loss of self-control to a degree that concerned his fellow officers, as well as reasonable members of the public who observed his behaviour," Skilnick wrote in his decision.
"While such conduct is regrettable, it does not equate with the commission of a criminal offence."
According to court documents, Kane was the third officer on the scene when police in the Fraser Heights neighbourhood pulled over a car because of warrants out for the arrest of the registered owner.
Pecchia was just a passenger in the car, but the officers could smell marijuana wafting from the vehicle, and Kane was asked to arrest him.
Const. Timothy Cucheran testified that he heard an argument between the two men and then watched Kane reach into the passenger side window and grab Pecchia by the neck and face, dropping a magazine of bullets into the car as he did so.
Pecchia said that Kane had punched him in the side of the face without any provocation, and then wrapped his hands around his neck as he tried to climb into the back seat to get away from the officer.
But Kane told the story differently, claiming that Pecchia had punched him in the stomach and then kicked and elbowed him as he tried to get the suspect under control and out of the car.
Once Pecchia was outside the vehicle, his fellow officers said they watched as Kane -- a towering 6-5 tall -- took control of the much smaller Pecchia.
"[Kane] wrapped his arm -- his right arm -- around Pecchia's neck and then put his other hand onto his fist, picking him up off of the ground and started walking backwards away from the car," Cucheran said.
The senior officer said he watched Pecchia struggle and kick at Kane's shins for a time until the smaller man went limp in the officer's arms.
"Okay, that's enough, put him down," Cucheran told Kane, according to his testimony.
A neighbour watching the scuffle said she heard Pecchia plead, "please sir, what did I do, what did I do?" She said she also saw Pecchia go limp, and assumed that he was unconscious.
But another officer on the scene, Const. Steve Lachapelle, said he saw something different, and testified that Kane slid his arms under Pecchia's and locked hands behind the suspect's neck in a full nelson. For his part, Kane testified that he only held Pecchia by the shoulders, placing a hand behind the suspect's head to protect against a head butt.
In the end, Pecchia was not arrested or charged, and suffered cuts to his mouth and scratches on his neck, as well as damage to his teeth.
But the judge said that the conflicting evidence in the case made it impossible to tell how hard Pecchia was fighting against Kane and whether the force used by the officer was appropriate for the situation.
"There are only two persons who know how the altercation between the accused and the complainant began, namely the two of them. They have given diametrically opposing evidence about what took place," Skilnick wrote.
But he acknowledged that Kane's behaviour was not above reproach, chastising the Mountie for "a lack of composure and an inability to control his anger."