The fate of a Kelowna RCMP officer accused of assault during a downtown Kelowna arrest is now in the hands of a judge after Crown and defence wrapped up their closing arguments Friday.
Const. Siggy Pietrzak was charged with assault in April 2021, about a year after he was involved in the arrest of Tyler Russell in a downtown Kelowna parking lot. During the arrest, which was caught on camera by two bystanders, Pietrzak repeatedly struck Russell in the head, as he was being held by two other officers who were attempting to arrest him.
Pietrzak's assault trial began back in May of this year, and it's carried on far longer than it was originally scheduled for. But after several weeks of on-and-off court dates, the trial officially wrapped up Friday, with Crown prosecutor David Hainey and defence counsel David Butcher giving their closing statements.
Hainey said it's now up to Judge Mariane Armstrong to determine if Pietrzak's actions during the arrest of Russell were “reasonable, necessary and proportionate.”
One of the “key factual issues” Hainey noted was whether or not both of Russell's arms were restrained when Pietrzak began repeatedly hitting his head. While it's not entirely clear in the two videos, Hainey says the Crown believes Russell was completely restrained by Const. David Carter and Const. Regan Donahue, based on witness testimony and from what is visible in the videos.
But defence counsel Butcher said Pietrzak believed one of Russell's arms was free upon his arrival, and he believed Russell was flailing his arm around in an assaultive way.
“If his arms were restrained, that's one of the primary bases for why the Crown says the use of force was not reasonable or proportionate, because essentially you're repeatedly punching someone in the face while they're being restrained by two other officers,” Hainey said.
Both the Crown and defence used testimony from “expert witnesses” – Staff. Sgt. Leonard McCoshen for the Crown and Sgt. Brad Fawcett for the defence.
While McCoshen testified Pietrzak's conduct was not in accordance with RCMP training and policy, Fawcett concluded the opposite.
But Friday, Hainey noted that while these experts' testimonies “may be relevant, it's not determinative," and whether or not Pietrzak's conduct was criminal is ultimately up to Judge Armstrong.
“The police don't set a limit on their own ability with respect to the number of strikes they can use, but that's the role of the court. There has to be a limit,” Hainey said as an example.
“So that's a perfect illustration of the issues you're going to have to grapple with, with respect to the police not getting to decide the reasonableness of their own force."
Butcher argued the court shouldn't play the role of “Monday morning quarterback,” by assessing Pietrzak's actions over a short, 10-second period with the benefit of hindsight. He also noted that both Const. Carter and Const. Donahue testified they were grateful for Pietrzak's intervention during the arrest.
But Hainey said the court is required to assess Pietrzak's actions in the context of the law.
“It's an unenviable task for the court, but it's a necessary one,” Hainey said. “It's not about being a 'Monday morning quarterback,' it's about applying the court's expertise in determining the issue of objective reasonableness ... that's not up to the police.
“There's a point at which the court has to assume its role and set some limits.”
Despite admitting to resisting arrest, Russell was never charged in the incident. While the altercation started with Const. Carter demanding a breath sample from Russell as he sat in a truck in a downtown Kelowna parking lot, Russell did not have the vehicle's keys on him.
Friday, Judge Armstrong asked Crown and defence if she needed to take into account whether the arrest itself was lawful when determining Pietrzak's guilt or innocence. Hainey said that Russell “likely had not committed the offence he was originally investigated” for, but conceded that Pietrzak still had reasonable grounds to assist in the arrest when he arrived on scene and saw the other two officers struggling with Russell.
Butcher meanwhile argued that, regardless of whether Russell was innocent of impaired driving, “he did commit the offence of refusing to blow into the approved screening device and Const. Carter had grounds to believe that he committed the offence.”
With the trial now wrapped up, Judge Armstrong reserved her decision to Dec. 1.