Kelowna RCMP officer opposes 'expert' testimony in assault trial

The assault trial for a Kelowna RCMP officer picked back up Friday, after beginning last month.

Const. Siggy Pietrzak is facing a single count of assault connected to a May 2020 arrest in downtown Kelowna that was captured on video. The video shows Const. David Carter and Const. Regan Donahue struggling to arrest Tyler Russell, before Const. Pietrzak arrived on the scene and struck Russell in the face multiple times.

After the video surfaced, Pietrzak was placed on administrative duty and then suspended with pay. The assault charge was laid about a year later.

Last month, several officers involved in the arrest testified at Pietrzak's trial, in addition to Russell. Friday, Crown prosecutor David Hainey worked to convince Judge Mariane Armstrong to allow “expert testimony” from Staff Sgt. Leonard McCoshen, but defence counsel David Butcher opposed allowing McCoshen’s testimony.

McCoshen, a homicide investigator out of Alberta, has more than 30 years of experience with the RCMP, including seven years of general duty work at the start of his career. He is now on the RCMP National Use-of-Force Committee and he's been qualified as a “use-of-force” expert in prior trials involving police officers.

He also has taught a number of RCMP courses since 2004, and estimated he's trained close to 1,000 officers.

During Friday’s voir dire, where submissions were made to determine the admissibility of McCoshen’s “expert” evidence, Hainey argued that most, if not all, “use of force” cases like the Pietrzak matter include expert opinion by some kind of expert.

“You'd be hard pressed to find a Section 25 use of force case that doesn't involve the exact sort of expert evidence the Crown is seeking to tender,” Hainey told Judge Armstrong. Section 25 of the criminal code legislates officer's allowable use of force during the course of their duties.

But Butcher spent most of the day Friday cross examining Sgt. McCoshen. Ultimately, Butcher argued the veteran officer's experience as a street officer is “way too old,” and that McCoshen's testimony about his background is “either puffed up and exaggerated or irrelevant.”

“This man is not qualified and it's not necessary for him to give evidence,” Butcher said. “His evidence is quite historic and has much less substance to it than the 40-odd page resume might suggest.”

He suggested that the officers who have previously testified in the trial – Pietrzak's co-workers – are just as qualified to speak about the appropriate use of force required during an arrest.

Hainey noted that Pietrzak's defence initially hadn't opposed the admissibility of expert evidence on use of force, but that has now changed. In his closing submissions on the matter, Hainey cited a Supreme Court of Canada ruling on the issue.

“This is the Supreme Court of Canada saying that's correct, you're entitled to hear police use-of-force expert evidence on the application of training and policy with a given set of facts. This is determinative of that issue I say,” Hainey said.

Judge Armstrong reserved her decision on whether to allow McCoshen’s testimony to a later date. McCoshen has already written a “use-of-force report” on the Pietrzak case, but it’s not clear what McCoshen’s opinion on Pietrzak's arrest will be if he’s allowed to testify.

The trial is scheduled to resume June 23 and 24. Near the end of day Friday, Butcher and Hainey said they were unclear if they would finish within the final two days of the scheduled trial, and Judge Armstrong asked them to explore finding an additional two days for trial in case it's needed.