An Abbotsford police officer has been found not guilty of assaulting a suspect during a 2021 arrest.
Const. Christopher Conway was acquitted Monday (March 25) in Abbotsford provincial court in a decision that was attended by several officers and staff of the Abbotsford Police Department (APD), many of whom hugged and congratulated him afterwards.
The BC Prosecution Service announced in September 2022 that Conway, who has been with the APD since 2018, had been charged with one count of assault. But no details about the incident were released at that time.
In her ruling, Judge Grace Oh summarized the evidence that had been presented at Conway’s trial, which ran over four days in January.
She said officers from the APD, including Conway, were dispatched on Nov. 21, 2021 for reports of a theft or attempted theft of a vehicle.
En route to the call, the officers were told that the suspect, Michele Kroeker, had used a two-by-four and a metal shovel to smash windows and that the latest vehicle involved was a dump truck.
They were also told that Kroeker was a “caution for violence” and had pending charges for dangerous driving and flight from police. He also had an outstanding warrant from Alberta and was subject to court conditions that included no firearms and not to be in the driver’s seat of a vehicle, Oh said.
“All of the officers considered this to be a high-risk call,” she said.
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When officers arrived, Kroeker was behind the wheel of a dump truck, and they all believed there were reasonable grounds to arrest him for mischief and possession of stolen property, Oh said.
She said Kroeker was repeatedly told that he was under arrest and to get out to the truck, but he did not comply.
Oh said an officer fired his “less lethal” shotgun at Kroeker’s upper body while he was sitting in the dump truck, but it appeared to have no effect and a second shot was fired by another officer.
Kroeker then got out of the truck, but failed to comply with commands to get down on the ground. A third less-lethal shot was fired.
A police dog was deployed, biting Kroeker in the lower legs, resulting in an injury that later required 18 staples, Oh said.
Kroeker eventually lay face down on the ground, at which point Conway and another officer handcuffed him.
Conflicting testimony was presented in court about what occurred next. Two officers on scene said that, at this point of the arrest, they believe Kroeker was compliant.
One officer said he saw Conway strike Kroeker’s upper back twice with his hand “with full force” and twice in his torso with his knee.
The other officer said he saw Conway punch Kroeker once in the upper back and knee strike him twice in the upper arm.
But under cross-exam, both officers said it was possible that Kroeker was moving around at the time of the strikes.
Conway testified that he punched Kroeker twice after he was handcuffed because Kroeker continued to move. He said he needed Kroeker to remain still so he could search him and Kroeker could receive the urgent medical attention he required from the dog bite.
“(Conway) described that, in his view, Mr. Kroeker was not yet under control, as he continued to move his legs and torso and did not stop what he directed him to do,” Oh said.
“ … When Mr. Kroeker did not quickly comply with his final direction to stop moving, he gave him two quick closed fist strikes to his upper back to break up his thought process and bring him under control.”
Oh said she found all three witnesses credible, and that their conflicting testimony could be due to the “chaos and stress of the incident” and “that memories of brief and stressful incidents may be faulty.”
She said the issue to be determined was whether Conway’s use of force was reasonable and justified at the time.
Oh said she was “disturbed” by Conway’s use of force on a “vulnerable, relatively subdued subject.”
“But I have the benefit of the detailed re-creation and parsing of a highly charged moment in the artificial light of the courtroom. What I can decided over multiple days of evidence and analysis with the benefit of hindsight, Const. Conway decided in seconds,” she said.
Oh said she accepts that Conway made a quick decision given Kroeker’s “demonstrated imperviousness to earlier uses of force” and that the strikes “may have been reasonably necessary.”
The Crown did not prove beyond a reasonable doubt that Conway’s use of force was excessive, she concluded.
According to court records, Kroeker was convicted of mischief and resisting a peace officer in relation to the incident and was sentenced to 18 months’ probation.