Judge criticizes Yukon RCMP officer for using excessive force in making arrest

A Yukon Territorial Court judge has acquitted a Whitehorse-area man who was charged with resisting arrest, and deliveredharsh words tothe arresting officer who "just jumped him."

Harry Kevin Kolasch was accused of struggling with RCMP Const. Christopher Barr and grabbing at the weapons on the officer's duty belt, outside the Whitehorse Superstore on New Years Eve, 2016.

In addition to the resisting arrest charge, Kolasch was charged with possession ofa stolen hat and DVD, and violating a probation order. Those charges were also dismissed.

The incident at Superstore began when the store was contacted and toldpolice were on their way over to talk to Kolaschabout an incident at the McDonald's restaurant next door. A Superstoresecurity guard testified thathe was told to ensure Kolasch did not leave the store until officersarrived.

The security guard, Tyler Schwalm,testified thatKolasch was "visibly intoxicated, unsteady on his feet, very agitated and he could smell alcohol on him."

As he and Kolaschleftthe store, they saw an RCMP officer outside. Schwalm said Kolasch immediately began walking in the other direction. He said the officertried to arrest Kolasch, and there was a brief struggle before the twofell to the ground between two parked vehicles.

Schwalmsaid he saw the officer hit Kolasch, buttestified that he did not see Kolasch do anything to the officer.

The officer, Const. Christopher Barr, testified that he was initially called to McDonald's aftera man allegedly threw a cheeseburger at somebody and then tried to kick the manager.

He said that when he saw Kolasch walking away outside the Superstore, he followed andcalledout several times to Kolasch, "Police, sir, stop, you're under arrest," but was ignored. The officer said he grabbed Kolasch by the arm, and Kolasch pulled back.

Barr said he then pinned Kolaschto a car and called for assistance. He said Kolasch tried to pull away so he took him to the ground. The officer said Kolasch then began to pull at items on his duty belt, eventually reaching toward his gun.

Barr said he applied "a significant strike"to the left side of Kolasch's face. He took a another swing, but noticed Kolasch had been knocked unconscious anddid not follow through with the blow.

"He acknowledged that Mr. Kolasch had a two-inch gash on his left forehead, above his eye, which had significant bleeding," said the judge.

Barr himself suffered a swollen right hand and was examined at the hospital.

'No opportunity to react or respond'

Judge Nancy Orr noted that Barr described Kolasch's behaviour as violent. But she questioned the officer's version of the altercation.

She said surveillance videos showed that, according to Barr's testimony, during a 40-second confrontationhe approached Kolasch, calledto him several times, grabbed him, pinned him to the hood of a car and then took him to ground during which there wasno sign of Kolasch being violent or resisting.

"When you see this video, it is hard to believe that officer acted as he did. He gave Mr. Kolasch no opportunity to react or respond," said the judge.

She also wondered whetherthe Barr's haste in arresting Kolasch was motivated by the officer'sbeing near the end of his shift.

"So whether his intention was that this was the end of his shift, which he never indicated, and that he was in a hurry to get home or to do other things or to assist in other matters was not clear but he certainly acted with incredible speed and haste in the scenario that was being presented to him."

The judge found that Barr's arrest was not legal, and histreatment of Kolaschfrom beginning to end was not justified in the circumstances.

"He just jumped him," she wrote, sayingthe force used was excessive.

Orr also did not accept the officer's testimony that Kolasch attempted to grab his gun.

She also noted that the officer was much younger, much bigger, and much fitter-looking than thefrail, intoxicated Kolasch.

The possession of stolen property charge was dismissed at the outset of the trial, after the prosecutor said there was "not any evidence of any sort to suggest any basis for that charge," Orr wrote in her decision.

Kolaschwas also acquitted on the charge of violating his probation. Orrruled that the evidence before her was that it was Kolasch who was attacked, not the officer.

The Public Prosecution Service, however, is disputing the judge's decision to acquit Kolaschon the resisting arrest charge.

It's appealing the acquittal. It says in a court document that Judge Orr erred-in-law when she ruled the arrest was not legal. It says the judge was also wrong to find thatConst. Barr used excessive force.