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Lawyers wrangle over prospective expert witness at trial for RCMP officer

Lack of hands-on experience with police dogs should disqualify retired Calgary police officer from testifying, defence lawyers argue
security camera arrest
An image from a security camera showing the February 2016 arrest of Cuyler Aubichon, now seeking damages from the RCMP.

Lawyers defending an RCMP officer accused of going too far in an arrest caught on a nearby security camera say a retired Calgary police officer should not be qualified as an expert witness because he has had no direct experience as a dog handler.

Cst. Joshua Grafton faces one count each of assault, assault with a weapon and obstruction of justice in relation to an early-morning Feb. 18, 2016 apprehension in an alleyway off the 2200 block of Oak Street. 

Video from a security camera posted on social media and obtained by media show Grafton using a dog to pull Cuyler Aubichon out of the driver's side of a stolen truck, taking him to the ground and delivering some strikes to Aubichon with one hand while controlling the dog with the other.

Crown is seeking to have Christopher Butler provide an opinion on whether Grafton's actions were within the RCMP's guidelines for use of force but counsel for Grafton contend Butler lacks the relevant experience and knowledge to do so.

In making final submissions on the issue this week at the Prince George courthouse, defence lawyer Ryan Hira likened the proposal to asking a figure skater to comment on the play of Sidney Crosby. 

"You don't call Goose to figure out Maverick's flying," Hira later added, referencing the movie Top Gun.

Hira described Butler, who held a range of senior positions in the Calgary Police Service prior to retiring in 2017, as a generalist not a specialist whose experience with dogs was largely limited to training and supervising police conducting crowd control.

Prior to being asked by the Crown to assess Grafton's actions, Hira contended Butler had no familiarity with B.C. policing standards and that his familiarity with RCMP standards both in general and in relation to use of dogs is dated.

"He is not an expert in police canine tactics, which is the heart of this case," Hira said.

Defence counsel also raised concern over Butler's failure to note a line from Grafton's report on the incident that said he noticed the truck's reverse lights flashing on as RCMP boxed in the vehicle, indicating the occupants were going to try to harm or flee police.

Hira called the omission "fatal" to Butler's opinion and "suggests the cherry picking of information to reach a certain conclusion."

In rebuttal, Crown counsel said Butler "missed one sentence" out of thousands of pages of documents that had been provided to him and that use of force in general, not canine tactics, are at the heart of the case.

Crown maintained Butler has actually has a "great deal of experience with dogs in an incident command role" and that his testimony "should not be dismissed just because he earned it from a more senior position rather than a front line position."

Butler "has shown a very clear recognition of his limits and his abilities" and "will not attempt to testify beyond his knowlege," Crown also told the court.

Crown has contended there was nothing to indicate Aubichon was going to attempt to flee and there were no prior incidents of violent behaviour associated with the stolen truck. Instead,

Crown described Aubichon as cooperative and that Grafton's use of the dog to "violently extract" him from the truck was not necessary. Once on the ground, Aubichon "did not fight back and was as passive as could be, notwithstanding the police dog that was biting him and pulling him in multiple directions" while also receiving blows from Grafton, including two elbow strikes to his head.

The court has heard Aubichon suffered bite wounds and a bruise and an abrasion to his head, but nothing serious enough to require medical attention, although in a civil suit Aubichon has brought against Grafton, the RCMP and the federal and provincial governments, he claims to have suffered serious mental health issues as a result.

Submissions from Crown and defence counsel on whether Butler should be qualified as an expert capped four days of sometimes hotly-contested direct and cross examination, often interspersed with objections from either side, as the trial resumed this week.

Prince George Provincial Court Judge Peter McDermick deferred decision on the matter to a later date.