On Thursday, final arguments were heard in the case of a 19-year-old who was charged with the first-degree murder of Calgary police officer Sargeant Andrew Harnett on New Year's Eve 2020.
The crown prosecution replayed portions of camera footage from December 31, reinforcing the crown's position that the accused's testimony that the court heard was not credible and unsubstantiated. Ewenson said that the driver's initial interactions with Sargeant Harnett did in no way indicate he seemed intimidated or otherwise scared of the police.
"He is so self-assured [that] he calls the officer 'brother' three times. Certainly not a shrinking violet in terms of dealing with the officer. They're talking like peers," Ewenson stated. "My position is that the young person's evidence should be absolutely dismissed. It should be rejected [because] it was unreliable and not credible. The evidence that he offers is purely self-serving, and quite frankly, it's the only thing he can say."
A bird's eye view of all three police vehicles, as well as the accused's car, was played for the court during the final submissions. The footage showed that after Sargeant Harnett's initial interaction with the accused in his car, the police officers, including Constable Osmond and Constable Desroches all proceeded back into their own cars to verify the information that the accused had given them during the traffic stop.
"The young person ultimately testifies that he was panicking based on the conduct of the officer(s) in general and then ultimately what he said about Sergeant Harnett," Ewenson said. "The scene was essentially comatose. It was just the officers in their vehicles. The crux as I take it, with the young person's testimony; where the panic ultimately manifests itself, is the hand on the gun."
Ewenson pointed out to Justice Loparco that Sargeant Harnett's mannerisms in the video footage do not point to him readying himself to draw his weapon.
"You will see his arms swinging from side to side. His body language is that one is totally relaxed and there's no urgency on the part of any of the officers; no signs of enhanced risk [and] nothing that would suggest that any of the officers would have use of force on their mind or to use their handgun," Ewenson told the court.
The crown also told the court that any allegations on the part of the accused of potential racial profiling or unfair treatment by the police due to his ethnicity were unfounded.
"I find it easier on behalf of the prosecution to state what you don't see from the Calgary Police Service members and specifically Sergeant Harnett. [There is] no raised voice, no insults, no profanity; until of course, his life is at risk. No racism whatsoever," Ewenson told the court.
He also made a point to tell the court, the prosecution is not seeking a murder conviction because a police officer died in the line of duty, nor is it the role of the crown's lawyer to advocate for the reputation of the deceased.
"We don't reward our police for being professional. We of course expect it. Quite frankly, taxpayers were entitled to it and we got it from all officers. But the young person has raised the issues of racism and police abuse as a foundation for his actions."
Ewenson said that nothing done by Sergeant Harnett and his colleagues that night could have been viewed in the same universe as racism or police abuse.
"In fact, the conduct was, in my view, the polar opposite. In the prosecution's view, there isn't a single thing that can be pointed to from the body-worn camera footage of that night that offers a scintilla of evidence of such conduct, at best, it's in the young person's head."
The crown reiterated that after the accused fled the traffic stop, at which point in time Sargeant Harnett was holding onto the driver's car door, and then ended up briefly on a snow berm before accelerating up to 20 kilometres over the speed limit (which could have been upwards of 80 kilometres/hour), the accused was using his arms and legs to try and push the officer off the door and dislodge him from the car. According to previous expert testimony, the car travelled 427 metres before Harnett fell off and was then struck by an oncoming vehicle.
"That car was going very, very fast. Well in excess of the speed limit, possibly twice the speed limit with a human being on the side. The speed throughout this entire interaction was the responsibility of the young person. He brought the speed up to that and it was a constant acceleration, knowing that Sargeant Harnett was on the side from the [snow] berm onwards."
While Ewenson said that there could be an argument made that Harnett's falling off the vehicle and then slipping and being hit by an oncoming car led to his death, he underlined that the man who unintentionally struck Sargeant Harnett could not be blamed, as it was the chain of events preceding the collision that ultimately is responsible.
"This young person is responsible for that chain of causation that led to Sargeant Harnett's death," he said.
However, the accused's defence counsel, Zachary Al-Khatib, argued that a first-degree murder sentence is inappropriate in this case and argued for a verdict of guilty of manslaughter, arguing that because the accused, who was 17 at the time of the alleged offence, his thought process, especially the foresight to think of one's actions was not sufficient enough to understand the gravity of the possible consequences.
"What's common sense to a middle-aged person of a certain background and disposition is very different than what makes sense to a young person from a racialized background, with the upbringing and history of [my client]," Al-Khatib told the court. "The most important thing where murder is alleged is not on video and that is this young person's state of mind. That's what this case boils down to. What was in the young person's mind during the 35 seconds, that the flight from the traffic stop transpired."
The defence argued that the accused's testimony was honest and credible and said that the body camera footage of Sargeant Harnett demonstrated the driver of the car was not attempting to conceal information from Sargeant Harnett at the traffic stop. He added that while the accused does not deny fleeing the traffic stop, he said that it was not his client's intention to cause the death of the officer.
However, Justice Loparco underlined that there were a few moments where the car was on the snow berm in which the accused could have stopped the car and ended the chase.
"We know how much foresight and thought goes into the consequences of all of those activities. This was 15 to 35 seconds; it was consequential but it was a heat-of-the-moment decision that spiralled out of control," the defence argued.
The defence also underlined that in previous expert testimony it was posited that the driver's door was opened, possibly by Sargeant Harnett, and not pushed open by the accused. A witness previously testified that when he saw the vehicle stop, the witness saw both of Sergeant Harnett's arms inside the vehicle.
"Constable Osmond said that as they approached the berm, Sergeant Harnett's arm and half of his upper body were in over the driver's side window," Al-Khatib said.
He also added that Sargeant Harnett's own actions did not align with the police's safety policy, which states, in part, that officer safety in traffic stops is paramount and that alternatives to pursuit should be used wherever possible.
"The police helicopter service was an available alternative. Sending the tickets, at they were provincial traffic offences, at least for the young person could be mailed out."
Al-Khatib concluded that his client has pled guilty to manslaughter and he knows that his decision on New Year's Eve 2020 was wrong.
"He fled. He put these events in motion. He knows that none of these stories will be enough or will remedy the wrong and he'll have to live with the emptiness that he feels as a result of this for as long as he lives," he said. "The wrong decision he made was to flee. It deserves a manslaughter conviction, but he was believable when he says he did not murder Sargeant Harnett.
The court was adjourned until October 21, when a date will be set for Justice Loparco’s decision in the case. A man who was the passenger in the SUV at the time of the incident, Amir Abdulrahman was sentenced to five years in prison after pleading guilty to manslaughter.
Sargeant Harnett was a 12-year veteran of the Calgary Police Service. Previously, he served as a military police officer. He was promoted to Sergeant in 2019 and was assigned to District 5 in Calgary.