... Vi\ NCOU V'E'R'REGiSTiiy MAIN STREET

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1 Citation: p PROVINCIAL COURT OF BRITISH COLUMBIA Fill: D APR Vi\ NCOU V'E'R'REGiSTiiy MAIN STREET p Date: File No: Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. JEFFREY KLASSEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE JODIE WERIER Counsel for the Crown: Counsel for the Defendant: Place of Hearing: Dates of Hearing: Date of Judgment: Ralph Keefer and Ellen Leno Dwight M.D. Stewart Vancouver, B.C. October 12,13,14,15,18,19,20 & 22,2010; and January 17, 19,20,27 and February 4,2011 April 5, 2011

2 R. v. Klassen Page 1 INTRODUCTION: [1] In the early morning hours of January 21, 2009, while working as a newspaper courier in downtown Vancouver, Firoz Khan was assaulted. An off duty police officer, Griffin Gillan, entered a guilty plea and has already been sentenced for his participation in the assault. Jeffrey Klassen, a New Westminster police officer, who was also off duty, is charged (Count 2) with assaulting Khan contrary to section 266 of the Criminal Code. He is also charged (Count 3) with having a cellphone that belonged to Khan in his possession knowing that the phone was obtained by commission of an indictable offence, contrary to section 355(b) of the Criminal Code. ISSUES: [2] Count 2: Whether Klassen ought to be found guilty of assaulting Khan, or whether his physical altercation with Khan was justified pursuant to sections 25, 27, 30 and or 31 of the Criminal Code. [3] Count 3: Whether Klassen, who took Khan's cellphone during the altercation and still had it in his pocket when he was searched incidental to his arrest, had the requisite intent to support a conviction of possession of stolen property. THE EVIDENCE: [4] The evidence in this case spanned approximately 10 % days over four months. heard from 19 witnesses including Klassen and two expert witnesses, a use of force expert and a forensic toxicologist.

3 R. v. Klassen Page 2 UNDISPUTED FACTS: [5] While there are many facts that are in dispute, other relevant facts were consistently described by the various witnesses and are not in dispute. These undisputed facts are as follows: In January, 2009, Griffin Gillan, Jeffrey Klassen and Blair Tanino were all relatively new police officers who had become friends during their training at the Justice Institute. In January 2009, Klassen was a probationary officer who had not yet completed all of his training. He took an oath of office with the New Westminster police service on August 29, 2006 and is governed by the Code of Professional Conduct and all documents contained in Exhibit 24. ' Gillan, Tanino and Klassen got together on January 20, 2009 sometime between 6:00 p.m. -8:00 p.m. to watch a hockey game at a pub with a few other friends. They all consumed alcohol. No one kept track of how much everyone else was drinking. After the game they went back and forth between three different drinking establishments on the Granville Mall and continued to drink alcoholic beverages. Klassen, Tanino and Gillan were not on duty on January 21, Gillan is six feet tall and weighs 225 pounds. He drank to excess that evening. He claims to be unable to recall anything that happened after they arrived downtown. He describes only a "hazy memory" or a "vacant hole". His memory of the evening recommences when he was in handcuffs outside the Hyatt Hotel. At the time of his arrest he told the Vancouver Police that he had consumed 20 to 25 drinks, estimating that he drank about four drinks an hour for six hours. Gillan speculates that someone might have put something in one of his drinks, as his behaviour, as it was later described to him by others, was bizarre and completely out of character for him.

4 R. v. Klassen Page 3 In the early morning on January 21, 2009, Aubrey Simon, who is now deceased, saw Gillan, who was previously unknown to him, standing in the middle of the intersection at Hastings and Howe and offered him a ride. Simon drove Gillan to the Hyatt because Simon was headed there to pick up a friend. While in the car, Simon briefly used Gillan's cellphone. Gillan was acting erratically while in. Simon's car. When Gillan got out of Simon's car outside of the Hyatt, Simon was concerned enough about Gillan's behaviour that he went into the Hyatt and called 911. At some point during the evening, Gillan became separated from Klassen and Tanino and they did not see him again until they met up at the Hyatt. Firoz Khan was not previously known to Gillan, Tanino or Klassen. Firoz Khan is 5 ft 8 and weighs about 140 pounds. On January 21, 2009, while working as a newspaper courier, in downtown Vancouver, Khan arrived at the Hyatt Hotel in his delivery truck at about 2:40 a.m. to drop off newspapers. While spending.a few minutes organizing his newspapers for delivery, Khan noticed that Gillan was having a cigarette and talking on his cell phone near the Hotel's underground parking sign. While Khan was putting his newspapers on his shoulders, Gillan approached and asked for directions. Khan tried to ignore him. Gillan then more aggressively asked for directions, using abusive profane language. Khan replied that he would complete his deliveries and return to provide directions. Without provocation, Gillan kicked Khan in the stomach, causing him to fall onto the concrete. Newspapers were strewn around him. Gillan kicked Khan all over, including on his head. Khan repeatedlyasked Gillan why he was doing this. He was face down on the pavement. Gillan pulled the drawstrings on Khan's hooded sweatshirt, covering Khan's face. Khan also had his hands over his face to protect himself. Khan tried to get up, but Gillan pulled him back down by his hooded sweatshirt and continued to kick him. Gillan told Khan that he was under arrest and Khan repeatedly asked why he was under arrest. Gillan had his foot on the back of Khan's body to hold him in place on the ground. While he was on the ground, Khan thought that he heard

5 R. v. Klassen Page 4 Gillan talking on his cellphone. He heard Gillan say either to someone on the phone or to someone on the street, "I need back up" or "I can't handle this person". Shortly after Khan heard this, Klassen and Tanino arrived at the Hyatt by cab. When they arrived at the Hyatt, and while still in the cab, Klassen and Tanino saw Khan and Gillan standing with their hands on each other's shoulders. Tanino left the cab without paying, and rushed to separate Gillan and Khan. He moved Gillan approximately feet from Khan. Klassen also left the cab without payment and rushed towards Khan, who by then was on the ground. There is no reliable evidence concerning how Khan ended up on the ground. There was blood on the pavement which was not Khan's and was likely Tanino's. A paramedic who arrived at the scene confirmed that Khan had no medical complaints or visible injuries after the assault, with the exception of a sore wrist where the handcuffs had left an abrasion. (Exhibit 39) Exhibits 25 and 33 provide the details of the cellphone calls made and received by Klassen, Gillan and Tanino at relevant times that evening: o At 2:21 a.m. Tanino called Gillan. This call lasted 25 seconds. It is reasonable to conclude that this call was answered by Simon and that this is the call where Tanino heard the words "Hyatt" uttered by a stranger; o At 2:24 a.m. Tanino called Gillan but the call went to voic . o A few seconds later at 2:24 a.m. Gillan called Tanino. This call lasted 2 minutes and 6 seconds. o At 2:24 a.m. Klassen called Gillan. The records indicate that this call lasted 16 seconds. There was no evidence to SUbstantiate whether they actually spoke on the phone or whether Klassen was connected to Gillan's voic . o At 2:27 a.m. Tanino called Gillan. This call lasted 39 seconds. o At 2:29 a.m. Gillan called Tanino. This call lasted 1 minute and 13 seconds.

6 R. v. Klassen Page 5 During the altercation, Klass.en took Khan's cellphone and put it in his pocket. It was discovered by the police during a search of Klassen incidental to his arrest. The phone was returned to Khan by the police. James Tran, a security guard, was driving by the Hyatt when he heard some screaming. He pulled over and saw one person on the ground and another person on top of him. He called 911 at 2:31 :59 a.m. The call lasted 2 minutes, 28 seconds. A recording of this call along with a transcript were marked as exhibits 2 & 3. During the 911 call Klassen can be heard uttering the commands "cross your feef', "cross your feef', "cross you feet, do as I say and you won't get hurt" "cross your feet" "put your hands out" "do as I say" "put your hand out, put your hand out, hands out". BLAIR TANINO: [6] Blair Tanino testified that at about 8:00 p.m. on January 20, 2009, he joined Klassen and Gillan, as well as a few other friends, at a pub in West Vancouver to watch a hockey game. Tanino estimates that he had 3 or 4 beers while watching the game. [7] After the hockey game, at around 10:00 or 10:30 p.m., he and Klassen, Gillan and others went to a pub on Granville Street called the Furniture Warehouse. While at the Warehouse he estimates that he had approximately four or five one ounce glasses of vodka. [8] Tanino, Klassen, Gillan and a few others then left the Warehouse and went to another bar on Granville Street. He estimates that he had about 3 drinks there. They then returned to the Warehouse. [9] While sitting at a table at the Warehouse with Klassen and Gillan, a 25 to 30 year old dark haired Caucasian male who he did not know, started to yell and swear at them

7 R. v. Klassen Page 6 from about five or six feet away. He has no idea why. The bouncers removed this man from the establishment and this male continued to yell and point at them though the window once he was outside. This was a very brief incident. [10] After about an hour at the Warehouse, Gillan, Klassen, Tanino and a few others went the Roxy nightclub. Tanino's best recollection was that they were at the Roxy for approximately 45 minutes, however, having been shown some surveillance video from inside and outside of the Roxy, Tanino conceded that he may have been mistaken. about who was at the Roxy, how long they were there, and what time they left. His best guess was that he had another one or two drinks while at the Roxy. At some point in the evening, while outside of the Roxy on Granville Street, he witnessed GiJlan and Klassen in a very short argument with another unknown younger male.. [11] Sometime later, while in the Roxy, Tanino could not find Gillan, so he called Gillan's cell phone. The first time he called, someone other than Gillan answered the phone. A calm male voice said "The Hyatt" and then they were disconnected. He cannot recall whether Klassen was beside him when he made this first call. He thought that it was strange that someone other than Gillan had answered the phone, so he called back. During this second call, which may have taken place while they were at the Roxy, or perhaps while he was in the.cab on the way to the Hyatt, he heard a loud scratchy noise like the phone speaker rubbing against something. This time the voice sounded like Gillan. Tanino asked where he was and if everything was ok. Gillan said "the Hyatt". Gillan sounded upset or angry. Tanino has norecollection of whether anything else was said, although he recalled hearing some yelling. He thought that this was very odd and speculated that Gillan might have been assaulted by one of the two

8 R. v. Klassen Page 7 males that Gillan had been in a confrontation with earlier that evening. After he got off the phone he told Klassen that something was "wrong with Griff'. (transcript October 18, page 17 lines 1-3) While he could not recall the exact words, he testified that he told Klassen: "... Sounds like Griff's in some sort of trouble. I'm not sure what is going on. Some weird -somebody that wasn't Griff answered the phone." (transcript October 18, page 17 lines 6-12). "that there- - something - - sounded like something was going on. I don't know if Griff's in trouble or somebody - - he was getting assaulted. I wasn't too sure but -- I was - I'm not too sure if he was getting assault. I don't - something's odd - odd here." (transcript October 18, page 17 lines 32-38) [12] Tanino and Klassen decided to go to the Hyatt to see what was up. Within five minutes they had flagged down a taxi for the short ride to the Hyatt. This was sometime after 2:00 a.m. Tanino was unable to remember clearly how many times he attempted to call Gillan or whether Gillan called him back while he was in the cab. In crossexamination he conceded that the cab video seems to show him on his cell phone for a very short call while riding in the cab. He also agreed that the cab video shows that for part of the cab ride Klassen was also using his cellphone. In cross-examination he also conceded that he may have expressed his concerns about Gillan to Klassen for the first time while riding in the cab, rather than before they decided to flag a cab down. [13] Tanino acknowledges that when he arrived at the Hyatt that he was intoxicated, but felt that he had his wits about him. He thought Klassen was equally intoxicated. Gillan appeared to him to be most intoxicated of the three of them.

9 R. v. Klassen Page 8 [14] Upon arriving at the Hyatt, while still inside the cab, Tanino saw Gillan and Khan standing and facing one other. They had their hands on each other's shoulders and they looked like they were in a struggle. Tanino got out of the taxi and ran over to Gillan and Khan and separated them. He took Gillan about 12 to 15 feet away from Khan and asked Gillan what was going on and whether everything was ok. Gillan did not respond. [15] While talking to Gillan, Tanino did not pay attention to what Klassen was doing. He did not see the commencement of the interaction between Klassen and Khan. He estimates that his attention was diverted for about 5 to 10 seconds after he separated Gillan and Khan. He told Gillan to stay where he was. When he turned around, he saw that Khan was on the ground on his stomach being held down by Klassen, who had Khan's left arm in an arm bar while kneeling on his left shoulder. He has no idea how Khan got onto the pavement. He does not recall what Klassen was saying to Khan. He does not recall hearing Klassen identify himself as a police officer or place Khan under arrest. [16] Tanino approached and assisted Klassen by grabbing Khan's right wrist. He wanted to ensure that Kahn was not able to reach for something that might hurt any of them. Gillan approached them a few times. Arone point he accidentally kicked Tanino in the mouth while Tanino was squatting down and holding Khan's right wrist and as a result, Tanino began bleeding from the mouth. Each time Gillan approached, Tanino pushed Gillan away from Kahn. At these points his attention was diverted towards Gillan who he instructed to stay back. He did not see Klassen strike or hit Khan.

10 R. v. Klassen Page 9 [17] Tanino noticed that there were members of the public who had gathered at the scene. He asked for the police to be called because he felt that something was not right. [18] Tanino agreed that Khan did not resemble either of the men that had been in confrontations involving Gillan and Klassen earlier in the evening. [19] After his arrest, while held together in a cell, Klassen explained to Tanino that because he was concerned that Khan might assault him with the cell phone, he took it out of Khan's hand and put it in his pocket. TRAVIS BRITTON: [20] Travis Britton was the bartender at the Furniture Warehouse on January 20 th and 21 st, He appeared to me to be a somewhat reluctant witness, who no longer had an independent recollection of the events. He served drinks to Klassen and his friends. Primarily he testified by refreshing his memory from a written statement made to the police on February 5, He was not certain how much Klassen had to drink, recalling that everyone at Klassen's table probably had two rounds of shots each. He testified about the very brief confrontation between Klassen and another patron but clarified that what he originally told the police about that incident had been relayed to him by others, as he could not see very much from his vantage point at the bar. He did recall talking to Klassen in the bar after the incident and asked him what had happened. Klassen responded to him "I honestly don't really know why I kicked off like that". (Exhibit 17 Lines 17-19).

11 R. v. Klassen Page 10 DAN MURPHY: [21] Dan Murphy, who has been a friend of Klassen's since grade 8, was in the group that got together on the evening of January 20, He arrived at the first pub at around 7:15-7:30 p.m. and he sat with Klassen during the game. He drank about 5 or 6 beers over the three hours that he was there. At the Furniture Warehouse he estimates that he had two vodka sodas in an hour and a half. After the Furniture Warehouse they went to a restaurant on Granville Street, but it was extremely busy and so they had one round of single shot vodka Redbulls and left about 15 minutes later as they could not get a seat. They then went back to the Furniture Warehouse where he might have. had another vodka soda. He left at about 12:15 or 12:30 a.m. He did not witness any altercations. He confirmed that Klassen has a preference for beer rather than hard liquor. [22] Murphy testified about a conversation that he had with Klassen after the incident, but it was clear to me after his cross-examination, that he was only able to provide the gist of what had been said, and so I have chosen to place no weight on this evidence. FIROZ KHAN: [23] Very shortly after Khan heard Gillan make the request for "back up" he saw two men arrive by cab. He began to feel more than one hand holding him down and more. than one pair of legs on his body. The beating continued, coupled with instructions like "stand up, don't move, cross your legs, lay down on the floor, do as we say and you won't be hurt, stay down". He believed that it was how three against one. He could smell alcohol on all 3 of the males. They identified themselves as undercover police

12 R. v. Klassen Page 11 officers. He tried to get up in order to run to the hotel, but was told to "stay down on the ground." He was unable to say with any certainty which of the three men was applying force to him. He did recall hearing someone say "call 911", and another voice say "We are calling the police", to which one of the assailants replied "We are the police. Back off." [24] While still on the ground, the males searched his rear pocket for identification. His cellphone, which he carried on the front of his belt, had gone missing. The phone was returned to him later by the Vancouver Police who eventually arrived. [25] Khan was put in handcuffs as he was initially believed to be the suspect. He described his injuries as bruising, a chipped tooth and a concussion. He refused medical attention at the scene. He estimates that the entire assault lasted about 10 minutes. YASH GROVER: [26] Yash Grover was the taxi driver who picked up Klassen and Tanino at the Roxy nightclub. He drove them to the Hyatt at about 2:25 a.m. When he arrived at the Hyatt he saw a lone male beating another man using his fist. His passengers, Tanino and Klassen, got out of his cab so quickly that they left the doors open. Neither stopped to pay the fare. They immediately joined in the beating of Khan, who was crying loudly for help while lying face down on his stomach. He sawall three men kicking and punching Khan. He got out of his cab and asked them to stop, but they began swearing at him. As one of the men appeared to be moving towards him, he got back in his cab, drove away and called 911 at 2:31 :49 a.m.

13 R. v. Klassen Page 12 PHILLIP PILON: [27] Phillip Pilon, a City of Vancouver Sanitation worker, witnessed a portion of the assault. He was driving by the Hyatt in his truck when he heard some yelling and screaming. He arrived at the scene before his co-worker, Jagit Chima. From his vantage point about 8 feet away, he saw three males assaulting Khan. Klassen, who. was on top of Khan, had his knee on Khan's back while Khan was lying face down on the pavement. He saw Klassen punch Khan at least 6 times making contact with his knuckles on the back of Khan's head. Each time Klassen's knuckles made contact Kahn's face went into the pavement. He believed that he saw a few drops of blood on ttie pavement. He described Klassen as the most aggressive of the three males and said that Klassen appeared to be in charge. [28] Pilon testified that Gillan twisted Khan's ankle and leg until his knee was grinding into the pavement and that Khan was screaming in pain. Tanino had Khan's left arm behind his back and was twisting it as hard as he could. It did not appear to him that Khan was resisting, but rather that he was trying to protect himself. He thought that all three of th.e assailants had been drinking. Khan was yelling "help me" and "call the police" and Klassen responded with "we are the police". He also recalled Klassen utter commands like "cross your feet" and "cross your legs". Klassen remained on top of Khan until the police arrived. [29] Pilon recalled that Klassen took a wallet out of Khan's back pocket and rifled through it and removed something. He also saw a silver cellphonego flying during the fight, and believed that Klassen took it. In cross-examination Pilon was insistent that he

14 R. v. Klassen Page 13 saw Klassen take Khan's wallet, despite being told that Khan had testified that he did not carry a wallet that evening. JAGIT CHIMA:. [30] Jagjit Chima is also a sanitation worker. When he noticed that Pilon had stopped his truck near the Hyatt, he did the same. From about feet away he saw Klassen on top of Khan. He heard Klassen yelling to Khan to "stay down or else"; "I am going to break your legs"; "cross your legs". He heard a lot of screaming and profanity. He saw Klassen throw about four punches to the back or side of Khan's head. He recalled Gillan and Tanino standing off to the side talking to one another. Gillan suddenly ran towards Khan and kicked him twice around the stomach area. Chima yelled for someone to call 911 and it took four or five minutes for the police to arrive. RONALD WINDSOR: [31] On January 21,2009, at about 2:30 a.m., Ronald Windsor was the night manager at the Hyatt when he got a call from a security guard, Benedict Gao to come outside. He looked out of the lobby window from about feet away and saw two male assailants on top of another male. One of the men had his knee in the back of the person who was lying face down on the ground and the other was trying to hold down the legs of that person. A third male was standing just behind them, but he was not participating in the assault. [32] He walked outside and stood about feet away. From this vantage point he confirmed that Klassen, who seemed to be the most aggressive, was holding Khan

15 R. v. Klassen Page 14 down by his hair with one hand and holding Khan's right arm at an angle. Another male was holding Khan's feet: Khan was struggling and asking for help. He did not see Klassen hit or punch Khan. He heard Klassen keep telling Khan to "keep your legs crossed". Windsor got closer and asked Klassen what was going on. Klassen looked him right in the eye and said "we are police - we are the fucking police." Klassen's eyes were extremely blood shot. BENEDICT GAO: [33] Benedict Gao, a Hyatt security guard, heard a loud noise outside the hotel at about 2:30 a.m. on January 21, From about ten meters away he saw Khan face down on the ground and three other men around him. Klassen was crouching and controlling Khan on the ground. Khan was crying out and saying "I just deliver papers". One of the men pushed on Khan's arm or shoulder and said "don't move or you will get hurt". Gao heard Windsor ask whether the men wanted him to call the police and Klassen responded that "we are the cops". In his direct evidence Gao indicated that he saw the male in the white shirt, (who was Klassen), kick Khan, but in cross examination it became apparent that he had confused Klassen with Gillan. Gao did not witness any strikes to Khan other than the kick. [34] It is clear from a review of the evidence of these five independent civilian witnesses that each one saw only a portion of the assaultive behaviour. While they endeavoured to provide their best recollection, their evidence is inconsistent.

16 R. v. Klassen Page 15 POLICE WITNESSES: CONSTABLE JASWAL: [35] Constable Jaswal was a new recruit,l)aving worked only shifts with the Vancouver Police Department when he arrested Klassen. Having responded to a dispatch of an assault in progress outside the Hyatt hotel, he saw some males restraining Khan on the ground. When someone at the scene said "ihe police are here", one of the males involved in the altercation said "we are the police". When he approached the males who were restraining Khan, he immediately recognized Klassen, who had been one of his "use of force" instructors during his training at the Justice Institute. He could tell that Klassen recognized him as well. At first he thought Klassen had arrested Khan. Klassen had restrained Khan who was lying face down with his arm pinned to the small of his back. Klassen's body weight was on top of Khan's left arm and left hand. Klassen was kneeling to the left of Khan and had one knee on the ground and the other to Khan's left side in what appeared to Jaswal to be a handcuffing position. Gillan and Tanino were assisting by restraining Khan, who was not resisting. There appeared to be some blood on the pavement near Khan. He did not see Klassen or Gillan strike or kick Khan. [36] Klassen gave him control of Khan's left arm. He applied handcuffs to Khan. There was a strong odour of liquor emanating from Klassen, Gillan and Tanino. Gillan. and Klassen had glassy watery eyes and other signs of alcohol impairment such as red cheeks and forehead, some slurred speech, and instability on their feet.

17 R. v. Klassen Page 16 [37] Khan appeared extremely emotional, upset and confused. When Khan stood up Jaswal noticed an empty cellphone holder at his waist. Shortly after he arrested Khan he was approached by civilians at the scene. After talking to them he became concerned that he had not arrested the right person. A Sergeant was called in to assist with the investigation, as it became apparent to him that they may have to arrest the three off duty officers. [38] Klassen made a number of statements to Jaswal at the scene. While he was arresting Klassen he recorded these statements by writing them on his latex gloves. When heran out of room on his gloves he continued to write up his arm. He transcribed these statements into his police notes later that evening. [39] When he arrested Klassen he read to him directly from his Charter card. He was very nervous while reading the Charter warning to Klassen, who interrupted and said: "You know you are supposed to ask me if I understand the official warning and yes I do understand. You are also supposed to write down what I am saying, are you doing that?" (transcript October 15, page 13 lines 40-44) [40] Before Jaswal searched Klassen incidental to his arrest, Klassen said: "Don't you dare do that. I taught you. You know I wouldn't have anything on me. Call your road boss right now". (transcript October 15, page 13 lines 25-28) \i\fhen he searched Klassen he found Khan's cellphone along with some cash. Inside Klassen's wallet was his police identification and badge.

18 R. v. Klassen Page 17 [41] After the search, Klassen made a number of other statements: "If you were in New West I would treat you better." "Like, if you were drinking and driving or being a goof I would sit you in my car without handcuffs, let you cool off and tell you to go away." "At least let me sit in the car and take my cuffs off. Not like I will do anything, I'm not stupid." Jaswal responded by saying: "It's not our policy. We don't have cage cars." To which Klassen responded: "This is absolutely stupid. I can't believe you are doing this". "You know I know how to play this game better than you. I just finished teaching you. I know how to articulate this stuff." and "Would you put cuffs on anyone like this? This is absolutely ridiculous. I taught you how to put cuffs on." (transcript October 15, page 19 lines 3-38) CONSTABLE MELVIN: [42] Constable Melvin, who has 15 years of policing experience, also recognized Klassen, whom he knew to be a self defence instructor at the Justice Institute. Klassen had very red eyes, smelled of alcohol, was unsteady on his feet (wavering on the spot), had slurred or laboured speech and it appeared to him as if it was an effort for Klassen to construct a complete sentence. Klassen appeared to be very agitated and somewhat belligerent. Constable Melvin formed the opinion that Klassen was highly intoxicated. SERGEANT ANDREWS: [43] Sergeant Andrews, a 25 year veteran of the Vancouver Police Department, was present when Constable Jaswal arrested Klassen. He observed Klassen to be somewhat aggressive and quite demeaning to Jaswal during the arrest, mocking Jaswal and saying things like "do you know what you are doing?"

19 R. v. Klassen Page 18 [44] Klassen appeared to Sergeant Andrews to be heavily intoxicated. He could smell liquor emanating from Klassen's breath, and he found that Klassen had an unprofessional demeanour. CONSTABLE FORMANIUK: [45] Constable Formaniuk, a nine year veteran with the Vancouver Police Department, arrived with Constable Jaswal. He testified that when he arrived Khan was face down and two of the off duty officers were holding him down by his arms and the third male was holding his feet. He had limited interaction with Klassen who he described as somewhat aggressive and a little cocky. JEFFREY KLASSEN: [46] Jeffrey Klassen is 40 years old. In January, 2009 he was 5 ft 11 and weighed 185 pounds. Prior to joining the police force he had been a civilian "use of force" instructor at the Justice Institute and assisted the full time sergeants in the instruction of police recruits. It was during his own training at the Justice Institute that he first met Gillan and Tanino. [47] Klassen's preference is to drink imported bottled beer. He does not drink hard liquor and generally declines when a round of shooters is bought for a group. He is a social drinker who drinks for pleasure, rather than to get drunk. [48] On January 20,2009, Klassen began drinking alcohol at about 6:00 p.m. when he went to a pub in West Vancouver and joined his friends to watch a Canucks game.

20 R. v. Klassen Page 19 He had plans the following day to attend a business meeting around noon, and to then drive to Kelowna to visit his children. [49] Klassen had an appetizer and a meal and drank three or four beers while watching the game. Klassen did not pay for his food or alcohol at the first pub. He produced no receipts from any of the establishments that he went to on January 20 th or 21 S t. 2009, and he took no notes after the fact about his consumption. He relied solely on his memory to reconstruct what he had to drink. [50] He and his friends left the first pub at about 10:30 p.m. and arrived at the Furniture Warehouse (the Warehouse) between. 10:45 and 11 :00 p.m. They stayed ab?ut forty five minutes. He drank one or two bottles of Dos Equis beer while at the Warehouse. He drank no hard liquor that evening. He paid the bill for the drinks at the Warehouse by credit card. In cross-examination Klassen refused to entertain the possibility that he might have had anything more than two beers to drink while at the Warehouse. (transcript October 22, page 63 lines 26-33) [51] They went from the Warehouse to another restaurant down the street which was very crowded and so they only stayed there about thirty minutes or less. Klassen had one bottle of beer. They returned to the Warehouse at about midnight. While there they had appetizers and Klassen had another one or two beers. In cross-examination again Klassen refused to entertain the possibility that he might have had something more than two beers to drink. (transcript October 22, page 65 lines 4-8)

21 R. v. Klassen Page 20 [52] While they were at the Warehouse for the second time Klassen came out of the bathroom and noticed a stranger in a verbal argument with someone at his table. It was a trivial argument and the interaction was brief. [53] This incident at the Warehouse was so insignificant that Klassen forgot about it immediately after it took place. Although the event was trivial, because he was a regular customer at the Warehouse, he felt a little embarrassed and so he apologized to the staff for what had happened. In cross-examination Klassen refused to concede that he might have used the words attributed to him by Britton (that is that he "kicked off'), claiming that it was "the lowest level incident one can possibly imagine." (transcript October 22, page 66 lines 40-41) [54] Klassen testified that he had no recollection of either he or Gillan being involved in any altercation on Granville Street. He states simply that it did not happen. [55] Klassen, Gillan and Tanino and a few of their friends went to the Roxy about 12:30 a.m. While at the Roxy he drank only one bottle of beer. He did not spend all of his time at the Roxy with Gillan and Tanino. He eventually left the Roxy with Tanino and they went across the street and back to the Warehouse. At this point they did not know where Gillan was, but he was not concerned. They had a plan to meet up with their three girlfriends at Gillan's house in North Vancouver later on and to spend the night there. [56] By this lime Klassen had what he described as a typical warm alcohol buzz. He believed that he could think clearly and "was not visibly drunk to anyone else". (transcript October 20, page 21 lines and page 22 line 1) This was a "normal

22 R. v. Klassen Page 21 night" and a typical pattern of drinking for him. When they got back to the Warehouse he had one more beer. [57] In cross-examination it was suggested to Klassen that having been back and forth between 6 venues that evening, that it was impossible for him to be certain about how much he had to drink. He refused to entertain the possibility that he might have consumed more than 9-11 beers. (transcript October 22, page 70 lines 7-44) The following exchange during cross-examination is indicative of Klassen's adamant stance that he was certain about the maximum amount of alcohol he had consumed: Q: "But you don't really, do you? I mean, you don't really have any idea what you drank? It's just a guess? You can't say how many beers you had before the game started, right? Can't say when you ordered your first beer? You don't have any receipts, you don't have any notes. So how do we know for sure that you only had three to four beers?" A: "I cannot say to the- -I can't give you a number that is an absolute. But what I can tell you is that I had three, possibly four beers at the Village Taphouse." Q: "Would you agree it could have been more?" A: "No, I do not agree." (transcript October 22, page 60 lines 3-16) [58] Klassen testified that shortly after 2:00 a.m. he received a text from his girlfriend and decided it was time to wrap things up. As it was clear that Gillan was not at the Warehouse, they decided to walk back to the Roxy. Tanino made a call to try and locate Gillan and told Klassen that someone other than Gillan had answered Gillan's. phone and said something about the Hyatt. Klassen was confused by this and wondered whether he was mistaken about their plans, and that perhaps they were supposed to meet their girlfriends at the Hyatt. He did not even know where the Hyatt was.

23 R. v. Klassen Page 22 [59] Tanino suggested that they go to the Hyatt and so they flagged down a cab. He sat in the back seat and checked his voice mail and texts on his cell phone. Tanino continued to try and reach Gillan. While in the cab he believes that Tanino must have reached Gillan as he said: "Somepuns up, somepuns up, somepun doesn't sound right." "Something is weird, something is not right." While he did not recall the exact wording it was something to that effect. (transcript October 20, page 25 lines 14-26) Klassen did not know what to think or what to make of it when he heard what Tanino had to say. [60] In cross examination Klassen stated that when Tanino talked about "something being up" that Tanino's demeanour was very matter of fact. (transcript October 22, page 75 line 33) He denied that Tanino expressed a concern to him that Gillan might have been assaulted. He testified that: "We got in the cab and we drove to the location that we thought he might be at because we wanted to find him. It was time to go home." (transcript October 22, page 76 lines 4-6) [61] When they arrived at the Hyatt, Klassen looked through the front windshield and saw Gillan and a stranger "engaged in physical contact". (transcript October 20, page 25 line 38) "They were standing up face to face, and each one of them had each other's hands on each other's upper chest, shoulder, up in this area." (transcript October 20, page 25 lines 45-47) He could not tell if they were grabbing body parts or clothing.

24 R. v. Klassen Page 23 "Constable Gillan's back is facing towards Burrard Street and Mr. Khan is walking Constable Gillan backwards about two steps." (transcript October 20, page 26 lines 22-27) Klassen concluded that what had just seen was an assault in progress. He looked briefly into the cab to see what the fare was, but then he decided that getting to the scene was more important. When he looked up again Khan was on the ground and Gillan and Tanino were standing together about feet away. He had no idea how Khan had ended up on the ground. [62] In cross-examination Klassen elaborated: A: "I looked out the front windshield of the cab and witnessed Constable Griffin arid a person unknown to me at that time standing face to face with their hands on each other's upper chest, shoulder area. Mr. Khan was pushing Constable Gillan back, approximately two steps, towards Burrard Street. That, by very definition, is an assault.". Q: "It's an assault by Constable Gillan too though, isn't it?" A: "At that point I'm not making determinations or speculating on what is happening there. I'm just observing what I see." Q: "Why did you conclude that Mr. Khan, rather than Constable Gillan, had committed an assault?" A: "Two - - two things. What I saw was Mr. Khan and Constable Griffin, hands on each other's chest. When I observed Mr. Khan walking Constable Gillan backwards a couple of steps, that in itself is - - is assaultive behaviour. That is an assault. Coupled with the fact of my knowledge of Constable Griffin. Constable Griffin is a personal friend of mine; he's also a police officer. And the presumption that a friend, as I know Constable Griffin to be a - - a stand up, quality person that not, if I live to be a hundred, would I ever think he would do something like that, and the fact that he's a police officer, is a - is a powerful, is a strong, influencing factor in my decision making at that moment." (transcript October 22, page 38 lines and page 39 lines 1-30)

25 R. v. Klassen Page 24 Klassen acknowledged that, based on the very limited information, he had no idea if what he had just witnessed was a consensual fight. [63).When Klassen first approached Khan, who was lying on his back propped up on his right elbow, it appeared to him that Khan was attempting to get up. He therefore yelled quite loudly for Khan to "stay down" two or three times. He got no response from Khan. He acknowledged that although he had his badge in his pocket, that he did not show it to Khan before he intervened. [64) In cross-examination he elaborated on his decision to physically intervene, rather than to investigate. Klassen made no mention in his direct evidence that he had identified himself as a police officer when he issued the "stay down" command. In cross-examination he stated that he knew at some point that he was identified as a police officer but was unable to state for certain when that identification took place. (transcript October 22, page 46 lines 25-47; page 47 lines and page 48 lines ): Q: "But Constable, to use force against Mr. Khan without his consent, in that situation, he's sitting or lying on the pavement, Gillan is 12 to 15 feet away, Tanino has already separated the two. In order for you to assault Mr. Khan, which you did, you have to have perceived, under that subsection, a threat of immediate and serious harm to justify your actions. What was the threat when you got there and Khan was on the ground, what was the threat of immediate and serious harm?" A: "The - - the fact that Mr. Khan was on his back as I approached - - when I first approached, they were together standing up and I witnessed an assault in progress. Moments later, after attempting to pay the cab, I go towards the scene and Mr. Khan is now on his back, propped up on his elbow attempting to get up. This was a concern to ine because I didn't know Mr. Khan. I didn't know what happened prior to my arrival. The best and safest place in order to

26 R. v. Klassen Page 25 control Mr. Khan and to prevent the continuation of an offence was for me to keep Mr. Khan on the ground. 1--" Q: "Not to talk to him, not to ask him what the problem is, sir. Not to show your badge, not to identify yourself as a police officer. None of those options occurred to you?" A: "Upon arriving on the scene, Your Honour, I said to Mr. Khan in a loud, professional, commanding voice, "Stay down, stay down, stay down." I didn't get any acknowledgement." Q: "How did he know you were a police officer?" A:"lt - - it didn't occur to me - - " A: "That's not the - - I'm not concerned at that point if he knows I'm a police officer." Q: "Well, aren't you concerned with maintaining the peace? Isn't that your job? Wouldn't it be helpful if he knew you were a police officer before you start shouting commands at him?" A: "At - - at some point, it - - it was identified that the three of us were police officers. I just don't know when." Q: No, not - - that was later." A: "Yeah. I can't tell you - -" Q:"Now" A: "- - exactly when the time came when it was identified that we were police officers." Q: "It was later, wasn't it?" A: "But it was - - I - - I don't recall exactly when it was when we identified ourselves as police officers but at some point - -" Q:"Weli. It wasn't at this point - - " A:"- - it was made." Q: " - - because Gillan and Tanino were 12 to 15 feet away. Are you changing your evidence now? Are you saying you identified yourself as a police officer to Mr. Khan when you said, "Stay down, stay down?" A: "I think, as best I can recall, is that we were identified as police officers. I just can't speak to exactly when that took place." [65] Klassen outlined with remarkable precision how he maintained control of Khan once he was on top of him. He described his own actions as restrained as he

27 R. v. Klassen Page 26 attempted to gain control of Khan. While maintaining that hedid not think of himself as a police officer on duty at the time, it is clear that he utilized his police training when he placed Khan in what he referred to as the "control handcuffing position". Despite being very exact about his recollection of the placement of his hands and knees, Klassen maintained that he was so focused on what he was doing that he was completely unaware of Khan's cries for help or of the comments being made by the civilians gathering around him. [66] Klassen thought of Khan as a. "suspect" who had been involved in assaultive behaviour. He wanted Khan to stay down on the ground as this would be the best place for him to retain control with the least chance of a risk of injury. He agreed in crossexamination that the police techniques that he used were typical of what the police do in an arrest situation, and that he was conducting himself as a police officer. (transcript October 22, page 50 lines 21-30) [67] Klassen ran around to Khan's left side and assumed a side mount position. While they were chest to chest he noticed a metallic object in Khan's hand. He grabbed Khan's right arm and commanded him to drop the object. Khan did not drop the object so Klassen took his two hands and pried the object out of Khan's hand and put the object in his pocket. He then took some weight off Khan and instructed him to roll over. Khan did not comply, so he grabbed him by the hip and shoulder and physically rolled him over on to his stomach and immediately secured his left arm. He placed his right knee on his left shoulder and with his two hands secured the left arm. Both of his hands were on Khan's left arm and his right knee was on Khan's shoulder. Despite the fact that he had no handcuffs he testified that the purpose of this manoeuvre was to get

28 R. v. Klassen Page 27 Khan into the "controlled handcuffing position". He took his left hand and put it on Khan's back or shoulder blade and pressed down with as much weight as he could to give him time to swing Khan's arm straight up and down. He needed to get one knee on Khan's upper and lower back and he needed one second to make this transition. He held Khan with his left hand while he completed this move. At this point his left knee was on Khan's upper back and his right knee was on Khan's lower back and Khan's left arm was squeezed between Klassen's knees. He was in a position where he had sufficient weight on Khan to hold him down. [68]. Tanino came to the right side of Khan's bodyand physically took Khan's right arm and placed it in an arm bar behind the small of Khan's back. However, Tanino did not remain there continuously. He left a few times and each time Khan pulled his arm back close to his body. [69] Klassen needed Khan to cross his feet and to get his right arm out from his body, preferably palm up so that Khan would be in a position of disadvantage. Khan did not cross his legs or put his arms out despite being commanded tei do so. While kneeling down Klassen said: "... Arm out, arm out, get your arm out, arm out." At the same time he explained: "And I'm doing this move where I am poking, slapping, I don't know what you want to call it, but I'm hitting him on his shoulder, on his right shoulder to indicate to him, so that he knows which arm to put out"... (transcript October 20, page 31 lines 10-15) "... I hit him on that shoulder, so thathe knows what arm I'm asking him to put out". (transcript October 20, page 31 lines 24-26)

29 R. v. Klassen Page 28 [70] In cross-examination Klassen attempted to minimize any inference that he might have employed an unnecessary degree of force during this part of his physical interaction with Khan: Q: "... Mr. Grover, the taxi driver, Mr. Pilon and Mr. Cheema... They all say that you were punching Mr. Khan in the head, all right? Sorry, they all say you were punching Mr. Khan. Mr. Pilon and Mr. Cheema both testified that the blows were hitting him in the head. Now, you have admitted striking Mr. Khan several times in the shoulder, correct? A: Yesterday I testified to poking Mr. Khan in the shoulder." Q: "What were your words? Were they poking or were they something else? Do you recall?" A: I believe my words were I was poking him in the shoulder, maybe slapping him in the shoulder." (transcript October 22, page 82 lines 21-36) Later in the cross-examination the following interchange took place: Q: "And you're hitting him on the right shoulder, correct?" A: "I am using a poking motion with an open hand to poke his right shoulder" (transcript October 22, page 85 lines 23-26) and again Q: "Why are you hitting him on the shoulder?" A: "The purpose of poking him in the right shoulder is so that Mr. Khan knows which arm I'm asking him to put out." (transcript October 22, page 86 lines 16-18) Klassen was adamant that it was impossible that he could have missed the intended target of Khan's shoulder and inadvertently landed some blows to Khan's head. [71] Klassen was completely unaware that Tanino had been kicked by Gillan. He saw that Tanino was bleeding from his mouth and he concluded that Tanino must have been hit in the face by Khan.

30 R. v. Klassen Page 29 [72] While Klassen was holding Khan down, Gillan approached and landed a knee strike to Khan in his hip or thigh or buttock area. Klassen told Gillan to "back off'. [73] Tanino returned to assist Klassen in his attempt to put Khan's right arrn back into an arm bar. Gillan then approached again and this time he grabbed one of Khan's feet by his ankle and using two hands he held the ankle very close to his own face, and said nonsensical things like "this is a foot" - "this is a shoe". [74] An unknown rna Ie approached Klassen and either he or Tanino told the man "we are the police, back off'. He was adamant in cross-examination that despite the testimony of Windsor that he did not say: "We are the fucking police". (transcript October 22, page 88 lines 6-10) [75] Once he had Khan in the "controlled handcuffing position" he asked Khan if he had anything sharp or anything that might cause harrn. He does not recall if Khan replied. He touched Khan on his waist or lower back pocket area in order to look for anything hard or sharp such as a weapon or tool of escape. He did not go inside Khan's pockets but only touched him with his open hand outside of his clothing. [76] Klassen recognized Constable Jaswal from his Justice Institute training and was happy to see him, because he knew that Constable Jaswal would have handcuffs. Once Khan was handcuffed, Klassen stood back and waited for the police to conduct their investigation. When Constable Jaswal arrested him for assault he was completely shocked.

31 R. v. Klassen Page 30 [77] Klassen attempted to explain away the comments that he made to Constable Jaswal during the course of his arrest. For example, when Constable Jaswal placed him in handcuffs he was compliant, but Constable Jaswal placed the handcuffs on him incorrectly which was uncomfortable and unnecessary for a compliant handcuffing. This is why he commented to Constable Jaswal at the time of his arrest that Constable Jaswal was not applying handcuffs in the way he had been taught. [78] Klassen made comments to Constable Jaswal before he was searched because he felt that Constable Jaswal should have known that he would never have any weapons or tools of escape on him, and so the search was unnecessary. When it was pointed out to Klassen in cross-examination that he uttered these words at a time when he had Khan's cellphone in his pocket, Klassen explained that he had forgotten about the cellphone when he made the comments. He denied that he was trying to intimidate Constable Jaswal despite his reference to the fact that he had been Constable Jaswal's teacher. (transcript October 22, page 94 lines 1-33) [79] Klassen also agreed that when Constable Jaswal ended the Charter caution that he made the comments attributed to him. He had never seen the technique of writing on a glove before, and his comments were made in that context. All that he had intended was to tease or rib Jaswal. (transcript October 22, page 95 lines 2-20) [80] Klassen agreed that he made the comment: "You know that I know how to play this game better than you. I just finished teaching you. I know how to articulate this stuff."