February 24, 2012 was a tough night all around. On that evening, a couple of duty officers from Alberta were traveling in eastern British Columbia when they noticed Mr. Van de Graaff, who was driving terribly. And if there were any doubt about just how bad driving was, those doubts were dispelled by some of the video the one of those fellows took and presented to the Judge. Here was the Judge’s description: “The driving was horrible. Mr. Van de Graff drove into the oncoming lane of traffic, repeatedly, without reason. It appears to be driving that is consistent with an impaired driver. The police suspected he was an impaired driver. They were probably correct, based on the evidence that I have heard thus far.”
When two B.C. police were able to catch up to the situation and take over, they immediately told Mr. Van de Graaf he was under arrest and tried to take him into custody. The bigger officer – at 6’5″ and 240 lbs, had little difficulty getting control of one of Mr. Van de Graff’s arm, but his partner was having trouble getting the other arm to behave. While that second officer was telling Mr. Van de Graff what to do with his arm, Mr. Van de Graaf, according to the Judge, “while grossly impaired, non-combative, having difficulty with his balance, dazed, with his eyes half open, then started to turn to the police officer.” Bad mistake. The smaller officer intentionally struck Mr. Van de Graff right in the nose – causing injury and significant bleeding.
At the trial of Mr. Van de Graff, in which he was prosecuted for impaired driving, driving with a blood alcohol level in excess of the legal limit (also known as DUI, DWI or “over 0.08”) as well as dangerous driving, the Judge had heard enough. After listening to submissions, he decided that this kind of behaviour was so out of line that to let the prosecution continue would undermine the integrity of the judicial process by offending society’s sense of fairness. He ordered an end to the prosecution, and notwithstanding how egregious Mr. Van de Graff’s driving had been, including how clearly dangerous it was, the case was over.
The Crown appealed and on April 11, 2014, the Supreme Court of British Columbia ruled that the Judge had not made any error. The Crown was critical of the Judge’s analytical approach, including his failure to follow more modern formulations of the rules relating to this area of the law, known as a “judicial stay of proceedings.” The Supreme Court justice rejected that argument, noting that at the trial, the Crown had not even given the Judge any cases to consider. In any event, the Court ruled, the trial Judge may not have put the test the way it has been stated in more recent cases, but he did consider all the correct principles.
The trial Judge had found that, “The integrity of the judicial system will be irreparably harmed if courts were to condone the excessive use of force by law enforcement authorities. This is one of those ‘clearest of cases’ and the charges are stayed,” and despite the best arguments of Crown (which included that the Judge could have excluded evidence or taken the conduct into account at a sentencing), the Supreme Court justice agreed, remarking that, “Cst. Fenimore struck the respondent in the face while he was being held, already “semiconscious” and showing no aggression. Unlike McCrea [another B.C. case in which a judicial stay was found not to be appropriate], this is one of those exceptional cases where the conduct of the officers was so egregious that it would cause the community to take umbrage, so as to warrant a stay of proceeding in order to dissociate the justice system from that conduct.”