The question at the end of a September 2015 trial was not if RCMP Const. Glen Gabruch assaulted a man in custody, but whether or not the assault was justified as a reasonable action under the criminal code.
In his Monday, Jan. 11 ruling, Judge Bruce Fraser decreed the actions taken in the early hours of Nov. 30, 2014 were not covered by the section of the criminal code which protects peace officers who use force during the execution of their duties, and thus Gabruch was found guilty of assaulting the victim,Mark Sawatsky of Alix.
Gabruch, a nine-year veteran in the RCMP, was handed a conditional discharge as a sentence, and if he completes a 12-month probation successfully, will have no criminal record and remain an RCMP officer.
The probation requires Gabruch to keep the peace and be of good behaviour, report to a corrections officer, complete a community service sentence, and provide his commanding officer with a copy of the ruling and complete any remedial training the commanding officer decrees is necessary.
During the September trial, the court heard that the victim, who had been arrested for driving while impaired, was denied access to the restroom facilities. When the victim got up to insist, he was thrown to the ground by Gabruch.
"The accused (Gabruch) took it upon himself to force (the victim) to sit back down," Fraser wrote in his judgment. "I am convinced by the evidence his purpose in doing so was to show who was in control and to exercise his authority over him... In my view even if he (Gabruch) thought that was necessary, he could have easily forced him (victim) to sit back down without throwing him on the ground."
Fraser continued, "Throwing him on the ground was an excessive use of force. There was no need to exercise his authority just to show who was in control or to prevent a person from performing a necessary and urgent bodily function."
Paul Moreau, the Edmonton-based lawyer representing Gabruch, said he and his client are considering his options going forward, and have yet to decide whether or not they will appeal Judge Fraser's decision.
"Judge Fraser gave a finding within his jurisdiction," Moreau said. "We respect that decision."
Upon a finding of guilt in a situation, the judge then has to decide whether or not the court will offer a discharge or a conviction. A conviction comes with a criminal record, and is meant to punish and rebuke the offender, whereas a discharge comes without a record and is geared toward rehabilitation. When deciding on conviction or discharge, the Judge considers factors such as prior record, severity of the crime, and the safety of the public, Moreau explained.
In this case, it was noted that Gabruch, who has served with the RCMP for nine years, has received multiple commendations and meritorious conduct notes, and has received no complaints in the time he's served. He has no prior criminal record, and has continued to serve with the RCMP without incident at his current posting in Lloydminster without issue.
That being said, Moreau said the sentence was "entirely appropriate" given the type of "low-end" assault, and not contrary to the safety of the public. While he and his client do not agree with the verdict of guilt, they are satisfied that the sentence is fair.
RCMP Cpl. Sharon Franks, a media relations officer with K division (Alberta), said, "It's never a good day when one of our own are found guilty in a court of law, but the RCMP supports the legal process and system."
For a copy of the ruling in this case, visit www.canlii.org/en/ab/abpc/doc/2016/2016abpc5/2016abpc5.html.