City bylaw officer not guilty of assaulting homeless man in park
Jun 02 2012
Victoria bylaw officer Andrew Dolan was acquitted Friday of assaulting a homeless man who had been camping in a city park.
Dolan, 45, was charged with assaulting 32-year-old Andrew Scarisbrick in October, 2010. He and fellow bylaw officer, Steve Simmonds, came upon Scarisbrick in Kings Park while looking for people violating the city's 7 a.m. curfew on sleeping in parks.
Kings Park is a small greenspace on Caledonia Avenue, near Royal Athletic Park.
In announcing his decision, Victoria provincial court Judge Robert Higinbotham said that although he took issue with some of Dolan's testimony, there was "an air of reality" to his claim that he was afraid during the encounter. "I cannot ignore it," Higinbotham said.
The judge said the force Dolan used against Scarisbrick was "significant," but he could not say for sure that it was disproportionate to the situation.
Higinbotham said Scarisbrick deserves compassion in the wake of the trial, along with assistance from local officials.
"I have to say I haven't felt such sympathy for a witness in a very, very long time."
He suggested that the City of Victoria or some other body should help Scarisbrick replace his dental plate, which was damaged during the incident. Scarisbrick also suffered a broken nose.
In his earlier summation to Higinbotham, defence lawyer Dennis Murray said Dolan had had several previous dealing with Scarisbrick without incident. "There is not a shred of evidence that Mr. Dolan bore any kind of animosity or malice or any such thing to Mr. Scarisbrick," Murray said.
He added that Dolan had previously seen Scarisbrick with syringes, knives and tools, so had reason to be concerned when the man started coming towards him. The court heard that Scarisbrick began to get agitated when Simmonds was inspecting a friend's shopping cart, but Higinbotham said he believed Scarisbrick's testimony that he was not trying to be a physical threat.
Murray said Dolan backed up as much as nine metres as Scarisbrick approached, shouting "Stop! Stop!" to avoid a confrontation. Even though Dolan ended up taking Scarisbrick to the ground, striking him and injuring him, Murray said he had no intent to inflict harm.
Dolan's actions should be considered in the context of the "fear and chaos" of the situation, Murray said.
Crown prosecutor Dan Scanlan said the evidence presented at the three-day trial, including testimony from Dolan, Scarisbrick and nearby residents, showed that Dolan had gone beyond the scope of self-defence, and continued to hit Scarisbrick even after he was compliant.
"He had ceased to resist and was incapable of any harm to Mr. Dolan or his partner."
The incident in the park was part of the reason behind subsequent changes in the city bylaw office, including uniforms and added training for the six-officer staff.