The Harry Kolasch matter was back before the courts Monday, as the Crown is appealing the decision made by Judge Nancy Orr.

Orr had acquitted Kolasch of resisting arrest in a ruling made on Dec. 8, 2017.

She deemed the arrest, made by RCMP Const. Chris Barr, as unlawful, ruling that he had used excessive force.

Kolasch was arrested outside the Real Canadian Superstore in Whitehorse on Dec. 31, 2016. Kolasch was said to have been intoxicated.

Barr responded to a 5:30 p.m. call at the McDonald’s restaurant on Fourth Avenue.

There was a report that an individual had thrown a hamburger at an employee and had tried to kick the manager. The manager told Barr the person had gone to Superstore, and pointed him out.

Crown counsel Lauren Whyte explained that the Crown’s appeal was based on two questions of law.

She argued that Orr made a mistake in her critique of Barr’s actions. She pointed to two sections of the Canadian Criminal Code, notably section 495, which explains “arrest without warrant by peace officer.”

Whyte pointed specifically to two subsections. Subsection one stipulates that a peace office may arrest someone without a warrant if the peace officer, on “reasonable grounds,” believes the person under arrest has or will commit or has committed an indictable offence.

Subsection three stipulates that “a peace officer acting under subsection one is deemed to be acting lawfully and in the execution of his duty.”

Whyte argued that Orr didn’t take this into consideration.

Orr had deemed that section 495 didn’t apply because there was no evidence that Kolasch was not going to commit an indictable offence. Whyte said that because of subsection three, this made her ruling wrong.

Justice Myra Bielby said Orr didn’t accept evidence from Barr as she did not believe him.

Orr felt he had contradicted himself, saying the arrest was made because of an assault on the McDonald’s manager, and later it was for resisting arrest.

Bielby added that Orr had access to a video from security cameras. The trial judge felt the tape contradicted Barr’s account of what happened, and that is why she didn’t believe him.

“She preferred the video,” Bielby said.

Whyte explained that the reason for the arrest was the assault, to identify Kolasch and to prevent more offences.

This came out during the trial during Barr’s cross-examination.

Barr was asked if he told Kolasch why he was under arrest. Barr said he’d made it clear to Kolasch.

Whyte believed Barr had reasonable grounds to believe an offence had been committed and that the arrest was part of the officer’s duty.

Whyte added that there is a difference in saying that there is no evidence of an indictable offence taking place and no accepting testimony.

The second ground for the appeal was that the legal test to determine what is a reasonable use of force was not applied.

The use of force is to be judged on a subjective and objective basis. The test is to determine if you can objectively say it was reasonable to use force.

Whyte argued that Orr did not complete the necessary analysis to determine an alternate view.

Bielby asked if this could play into the negative credibility of Barr, when it was reported that Kolasch was flailing as he was taken to the ground.

Whyte said she interprets the situation differently. She believes that the statement of flailing shows that Orr said a struggle between the two parties happened. She argues the trial judge should have accepted Barr’s evidence as a result.

“This was a key area of the case,” Whyte said.

Whyte believes Orr needed to acknowledge Barr’s statement that during the struggle, Kolasch reached for the officer’s weapon belt.

Defence lawyer Vince Larochelle said that what happened to Kolasch is serious to him.

In Kolasch’s eyes, he was jumped by a police officer.

“It’s no laughing matter,” Larochelle said.

He argued that Orr had written a comprehensive decision on Barr’s actions.

She used strong language. Larochelle said it’s rare to get someone to take this side on police credibility. The strong language reference was that Barr’s actions were unjustified.

“The force was excessive,” Larochelle said.

Larochelle said Orr had considered all the factors she needed to.

The arrest took place when it was dark, meaning that Kolasch may not have even seen Barr approach him.

He argued that the case that Kolasch had committed a crime is thin. At best, he said, there was a complaint of a cheeseburger being thrown and an attempt at kicking someone.

That was the only information the police had to work with. There were no prior dealings, and Kolasch did not have a weapon.

He added that three minutes after getting the call, Barr was arresting Kolasch. He felt that timeline is too short, and brings into question how Kolasch had been identified as the person from the McDonald’s incident.

Larochelle said the situation escalated quickly. Kolasch was thrown onto the hood of a car right away. He argued that Barr jumped right to violence.

He didn’t try talking to Kolasch. If there had been some kind of verbal communication that was rapidly escalating, maybe the use of force could be understandable.

Larochelle said the court should be concerned about the possible message this event could send. He argued that this could convey the idea that the police can do whatever they want in the Yukon.

As for the struggle on the ground, Larochelle explained that while Barr did say Kolasch reached for his weapon belt, the video of the incident casts some doubt because of the way Kolasch was seen moving on the recording. He said that Kolasch’s legs were moving up and down, and not kicking.

Larochelle wrapped up his arguments by saying there was no error in law.

Bielby reserved her decision and will be back to render it in the future.