Barb Pacholik (Regina Leader-Post) – A Saskatchewan court has ordered a new trial for an RCMP officer whose assault conviction for pepper spraying a man was overturned on appeal.
Const. Daniel S. Lariviere was originally found guilty of assault with a weapon after a provincial court judge rejected his claim of self defence. But a Court of Queen’s Bench judge recently ruled that errors made in reaching that verdict warranted a new trial.
On Friday, prosecutor Anthony Gerein said the Crown is still pondering whether to take the case to the Saskatchewan Court of Appeal.
The incident was sparked when Lariviere and Const. Chad Hoffman went to Stanley Severight’s Yorkton-area acreage in search of his son. Severight became particularly upset when Lariviere said he couldn’t divulge why they wanted to speak to the son.
During the trial two years ago, Hoffman testified that an angry and frustrated Severight turned and walked briskly towards the residence. When Lariviere told him to stop, Severight turned, ordered the officers to “get the f— off my property,” closed the distance between himself and Lariviere, pointed his index finger in the officer’s face, and again ordered him from the property. Lariviere told Severight to move his hand, then pushed it away. Severight continued yelling at the officers.
Lariviere, who had already removed his pepper spray from his holster, took a step back and released one burst of spray in Severight’s face.
Severight testified he did not say “get the f— off my property” until the end of the confrontation, and never actually finished the sentence before he was sprayed.
Lariviere contended he felt threatened when the larger, angry Severight advanced towards him, pointing his finger. Fearing he might be assaulted, he deployed his pepper spray “to control the threat that was in front of me.”
However, the trial judge had found none of Severight’s conduct amounted to an assault, and Lariviere was mistaken in his belief that he was in imminent danger. “Even if his mistaken belief permitted the use of force as self defence, the use of pepper spray was excessive and not warranted. There were two, well-armed police officers present, and one unarmed landowner telling them to leave.”
On appeal, Lariviere’s lawyer Aaron Fox argued the judge had failed to consider relevant portions of the constables’ evidence.
For example, Hoffman said he was anticipating a physical altercation during the heated dispute and viewed Severight as “a threat.”
In overturning the conviction, Justice Wayne McIntyre noted that, according to Hoffman, Severight was coming very close to striking Lariviere while waving his finger within three or four inches of the officer’s face.
In his written ruling, McIntryre found there was evidence to support the trial judge’s conclusion that there was no assault by Severight.
However, he ruled the judge had erred in reaching seemingly inconsistent conclusions about whether the officer’s mistaken belief of imminent danger was reasonable.
McIntyre added that the judge had also not considered all the relevant evidence, including Lariviere’s position that trying to talk Severight down was not an option.
Lariviere’s sentence, which was never appealed, is not mentioned in the ruling, and that information wasn’t readily available on Friday.
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