A Whitehorse man has been acquitted of a charge of resisting a police officer after a Yukon Territorial Court judge determined his arrest was unlawful and that the officer had used “excessive force”.

Following an incident outside the Real Canadian Superstore on New Year’s Eve 2016, Harry Kolasch was charged with resisting Yukon RCMP Const. Chris Barr for allegedly struggling and grabbing at weapons on his belt.

The charge was dismissed by Judge Nancy Orr on Dec. 8, 2017.

In her oral reasons for the decision recently released online, Orr said, “There is absolutely, positively, no justification whatsoever for how the officer dealt with Mr. Kolasch from the very beginning to the very end of this matter.”

According to court testimony, Barr had received a dispatch call at around 5:30 that afternoon that a man had been causing problems at the local McDonald’s restaurant.

Kolasch had allegedly thrown a hamburger at an employee, then tried to kick the restaurant manager as he followed him.

Barr testified that when he arrived at McDonald’s, the restaurant manager told him the suspect had gone into the nearby Superstore. He then pointed him out to the officer.

Tyler Schwalm, who had been working security at the Superstore that afternoon, testified he was asked to ensure that Kolasch didn’t leave the area until police arrived.

He noted the man was “visibly intoxicated, unsteady on his feet, very agitated and he could smell alcohol on him.”

Kolasch testified in his defence that he had been having some personal issues at the time and had been drinking for several days prior. He had little recollection of events that evening.

Barr said he walked toward the suspect and called out “in his police voice” “Stop. Police” then “Police. Sir, stop. You’re under arrest.”

Kolasch did not respond, and continued to walk away. There is no evidence as to whether he heard the officer.

Barr testified he began jogging toward the man. After he called out a third time, Kolasch stopped and turned around. Barr said he did not know who Kolasch was and that he had never dealt with him before.

Kolasch testified he remembers turning around as he heard someone running after him and saying something. At the time, he said, he did not realize Barr was a police officer, and noted from video footage that he was not wearing his glasses.

The men were about three metres apart facing one another, Barr said, when he approached Kolasch with caution, with his hands out and facing upwards. He then grabbed Kolasch by the arm and advised him he was under arrest.

Barr testified that Kolasch pulled back, which he viewed as resistance. He grabbed the man by both arms, spun him around and pinned him to the hood of a nearby car.

Then, according to Barr, Kolasch tried to pull his arms away, so he took the man to the ground by grabbing his neck area.

At this point, Barr said he was on his knees, pinning Kolasch to the passenger tire of the vehicle.

Meanwhile, Kolasch was lying on his left side with one arm pinned under him and the other out in front of him.

Barr testified that Kolasch was squirming around and turned onto his back. He claimed the man began to squeeze the pouch on his belt containing OC spray, then reached for his magazine pouch.

Kolasch then reached toward his handgun, the officer said.

Kolasch testified he did not realize Barr was a police officer until they were on the ground and he saw the yellow stripe on his pants, at which time he was not resisting. He has no memory of trying to grab for the tools on Barr’s belt.

Barr told the court he felt Kolasch was trying to disarm him and could potentially kill him.

In response, he applied “a significant strike” to the left side of Kolasch’s face with his right hand.

The officer said he swung to hit Kolasch a second time, but realized the man had gone unconscious.

Midway through the second swing, Barr said, he opened his hand and did not connect with Kolasch.

Barr testified he turned the unconscious Kolasch over and handcuffed his hands behind his back. He then put Kolasch into a medical recovery position and checked that he was breathing.

Barr testified that he continued to pat down Kolasch to check for weapons. When he found his wallet, he tossed it to the security guard to check for ID.

Following the incident, Kolasch had a two-inch gash on his forehead above his left eye which Barr said had significant bleeding.

As well, Barr’s right hand was quite swollen. He immediately went to the hospital for x-rays, which revealed no bones had been broken.

After carefully reviewing testimony and video footage of the incident, Judge Orr criticized the officer’s response. She said he “acted with speed and haste in the scenario that was being presented to him.

“When you see the video, it is hard to believe that the officer acted as he did,” the judge said.

She noted that while “police have a very difficult job,” they also have an obligation to act in a reasonable manner, including using reasonable force.

“They do not simply have the ability to impose their will upon somebody because they have the authority to do so,” she said.

Orr noted the Superstore was busy that evening, and that Kolasch was a stranger to Barr. He didn’t know whether Kolasch may have been hearing-impaired or had cognitive difficulties, she said.

She also pointed to evidence that Kolasch was intoxicated, and said his reaction time and appreciation of what was happening could have been affected.

“There was absolutely, positively, no consideration by the officer of that scenario in this matter,” she said.

Orr found it would have been reasonable for Kolasch not to have heard nor paid attention to Barr yelling at him from a distance.

Barr grabbed Kolasch’s arm “in a sudden manner,” she said, and gave him “no opportunity to react or to respond.”

Orr also found that Barr’s actions afterwards were “not justified in any way, shape or form.”

Barr “just jumped him” and “slugged him,” she said, without making any effort to speak to him nor identify him.

Orr noted that the significant differences in weight, height and age between the two men would have put Kolasch at a disadvantage in a struggle.

As well, she found any struggling attempts by Kolasch were “understandable and justified.”

If Kolasch had grabbed at Barr’s belt, she added, it would have been “more the nature of flailing along trying to defend himself in this unexplained attack than it would be of any effort to get those weapons from Const. Barr and doing harm.”

Orr also rebuffed Barr’s claims that he was afraid for his life.

“As serious as throwing a hamburger at someone at McDonald’s may well be, it certainly was not an indication that there was a firearm or a knife that he was wielding at the time,” she said.

Charges against Kolasch for possessing property obtained by the commission of an offence and failing to comply with a probation order were also dismissed due to lack of evidence.