August 13, 2004 I've had the transcript of Randy's trial for about five weeks now.

When I picked up my copy I was so excited I rushed right home, found my glasses and read the whole 677 pages in one sitting. Then I put it away. Two days later I took it out and separated it by witnesses, each one paper clipped and named; Randy, Marilyn, Yvonne, fourteen-year-old boy, thirteen-year-old boy, twelve-year-old girl, Vanessa, Tim, Constable Goodkey, Constable Foote, Constable Wasylyshen, Constable Blais... then I read them all, making notes, tables, charts, diagrams - the car here, the van there, Yvonne's house, Vanessa's house, the fence, the police cars. Who was sitting where in the car? Who saw what, over which shoulder, from what side of the car? I drew timelines: which officer was where, when, what time was the dispatch call? What day was the third R2 report filed by Constable Wasylyshen? What was he saying happened? when and how? Then I put it away again. I felt unbelievably sad and I had a headache. Four days ago, I took the whole thing out again. I have been reading it and re-reading it. And all the time wondering how the heck I'm going to write it out. "If you get tasered by this thing, it feels more like getting hit with some baseball bats from all directions, or like having a horse inside you trying to kick it's way out. It's really jolting...It just feels like your muscles are contracting like really - like it feels like heavy thumping, but inside your body." Constable Mike Wasylyshen, testifying at Randy's trial

August 14, 2004 I've been wrestling with this thing endlessly. I fall asleep thinking about it. I wake up thinking about it. I'm almost as a cranky as I was three months ago. But I have an idea. I'm going to go through the transcript and distil it for you. You can attend parts of the trial with me. Are you ready? This part of the trial is spread over four days - March 22 and 23 and June 14 and 18. Honorable Judge J. G. Easton is presiding. Ms. Karen Yacyshyn is representing the Crown. Mr. Tom Engel is representing Randy Lee Fryingpan. It's important to remember that Randy is on trail, not the constables. After he was arrested, the police discovered he was under a judge's order to abstain from drinking. This order was the result of a shoplifting charge that was ultimately dismissed. As Gaston pointed out last night, the whole thing has a terrible feel to it - it seems like the wrong person is on trial. It's upside down right from the beginning. The fact that Randy is even going to have his day in court is entirely thanks to Tom Engel's legal strategy, which he describes in his opening statement to the court, and I quote: "Your honor, I expect that you're going to hear during this trial that Randy Fryingpan was socializing with a number of friends, he was drinking, he was under the terms of a Recog that required him to abstain at that time. He, along with a number of friends, got into a vehicle which he had been in before, and it had been disabled for a number of months, inoperable in other words. He passed out in the back seat. There was some noise being caused by some youths in this vehicle, which caused a neighbor, Tim Diserlais, to phone the police to have something done about the noise. Police were dispatched. Sometime after they arrived, the doors were opened. Randy Fryingpan was unresponsive at the time, possibly because he was passed out from consumption of alcohol. In any event he was, without any prior warning assaulted by the police. Use of a taser was involved, blunt force was used, and other force was used, causing him lasting injury. I expect that you're going to hear that during this incident some police officers were laughing at him, and he was being threatened. He was taken to the police lockup because he was found to be in breach of his Recog, and he was strip searched there. He was then taken to EYOC where EYOC refused to admit him until he obtained medical treatment. He was then taken to Sturgeon General Hospital, received medical treatment, and then was returned to EYOC. Eventually he was released on judicial interim release. The position of the applicant Fryingpan on the Charter motion will be that this type of misconduct is the type that would shock the community, and the only remedy that is appropriate to deal with this type of misconduct is a stay of proceedings...

The second Charter notice is a notice which relates to an allegation of illegal strip search, and to disclosure issues. The argument that will be advanced on behalf of Fryingpan is that there has not been accidental non-disclosure or simply negligent non-disclosure; there has been deliberate non-disclosure by deliberate omission, and also by deliberately misleading statements in the disclosure materials. Our position is that this violates Section 7 and Section 11 (d), the right to a fair trail, of the Charter. And the appropriate remedy, the only appropriate remedy could be a stay. An adjournment wouldn't deal with this type of issue. The appropriate remedy would be a stay, in our submission. i We'll start with Marilyn's testimony. I met Marilyn for the first time in late 2003 outside the Edmonton Law Courts building on the first day of Randy's trial. To be honest, I can't remember anything about the trial itself. What happened in the courtroom? I'd have to find my notes, if indeed I made any notes, in order to refresh my memory. Now I sound like the police giving their testimony, later in trial. You'll see what I mean. I was at the trial that day specifically to meet Randy and Marilyn; I wanted to hear their side of the story. So, during the lunch recess I went to talk to them. I discovered Marilyn and I have many things in common. We're both mothers of several children, some of them in their teens. We're familiar with poverty, single parenthood, separation at one time or another from one or more of our children and, I suspect, the feeling of often hovering on the edge of being overwhelmed by life. On the other hand, she's a much better housekeeper than I am, she has a lot more courage and whereas I swear regularly, I don't believe Marilyn ever does. She's a very gentle woman, soft-spoken and quiet with a beautiful smile, but her eyes betray her. She's also very determined, they say as they look at you, in spite, or maybe because of her sadness, to keep going. She wants justice for Randy. This is what Marilyn tells us during her testimony: I am the mother of Randy Fryingpan. On October 5, 2002 my son was out in the neighborhood. I waited up for him all night because he didn't come home. During the night I heard someone crying out for help, saying, 'mom, help, please', but I didn't realize until later it was my son. About 11:30 the next morning, Randy's friend came over and told me what had happened. I was really worried. I went downtown to police headquarters...I told them my son was there. They had told me that they transferred him to the youth gaol. I told them he was injured and I was worried - that I wanted to see him right away. They gave me a phone number where I could reach him. I phoned the youth gaol and they told me they had taken him to the hospital and I couldn't talk to him because he was on 15-minute medical watch - he was having a hard time breathing. They told me to phone back later, maybe I could talk to him when the other shift came in. I went to make a complaint at the police headquarters downtown. They told me to make a statement - I left it there and they said they'd look into it. I kept phoning EYOC. They let me talk to him once - the next day. When I talked to him he sounded like he was in a lot of pain. They told me they wouldn't let me see him so I kept phoning to see how he was doing. On Monday we went to court for him and I saw his black eye. The judge ordered he be released and I went to pick him up at EYOC...I took him to my mothers where she had a camera and we took pictures. I wanted someone to believe me what had happened to him. I wanted to show the pictures to the police station. I took photos of all the marks on his body except the one close by his leg, on - almost into his private. They were deep - deep scars and they were kind of bruised. They were marks but - they were bruised too, kind of swollen. It was difficult to count them, because they're double, but there are twenty-one. When I heard what had happened to my son and saw the injuries, I felt hurt, helpless - I couldn't be there to help him and him crying to me for help, and I couldn't be there. Since this happened he isn't able to sleep until he gets really tired, that's the only time he'll fall asleep. He seems quiet now, he isn't able to trust anyone. I've been there for him all the time, trying to talk to him, but he's crying...I try to talk to him and be there for him, to support him - I didn't like what happened to him, and that - that still hurts today. Before this happened Randy seemed happy all the time. He always teased around, like he was always in a happy mood. Now he pushes his friends away, he just keeps to himself. Since I picked him up at EYOC, Randy's been having nerve problems - his nerves when he sleeps. I go down and see him and he'll kind of jump up from his sleeping, his body will vibrate. And when I wake him up, he says he had a bad dream. I did quite a bit of work tracking down witnesses but I haven't heard anything from the police. ii

Yvonne Nosky is owner of the car; it was sitting in the parking stall just beyond the fence of her small front yard. When the police arrived, she was watching TV in her living room which overlooks the yard. She's a tall woman with long hair hanging in a loose braid down her back. Something about her seems older than her years as if she's carrying an invisible burden impossible to put down. I suspect, from talking to her, that that burden is children, not just her own children and grandchildren, but the children of her people, native children. She's very calm, slightly ironic. It was Yvonne who painted a picture of her neighborhood for me: lots of kids. Lots of kids wandering around wearing baggy pants and ball caps. Mostly good kids with not much to do. She described barbecues in her yard that began with her daughter and her daughter's friends and ended with a yard full of neighborhood kids - some she knew and some she didn't. She can't help but worry about them all. And because she'd heard so many stories from them about being slapped around and called names by EPS officers, she can't help but feel a helpless anger toward the police. She doesn't like what happened to Randy. She knows it could have just as easily happened to her daughter and next time might, but she feels powerless to change that reality. This is what Yvonne has to say about what happened on October 5, 2002: I heard a whole lot of screaming - it was like blood curdling screaming - I looked out the window and I seen like four or five police cars out there. So I went out and asked them what was happening and one of the police officers came to the fence and was shining a light in my face, asking is that your car. I said yes, but it's not running. And he said well. And that's about all they said to me, I guess. Then he went back and he did whatever with the kids. I went in to put my shoes on and my coat - it was raining - then I walked toward the car and I noticed there was like four or five police cars out there, dogs. Police dogs. There were running shoes all over the place, kids' running shoes laying all over there, kids being handcuffed and standing up against the police cars. I thought there was a lot of force being put on these kids, and - they weren't fighting or anything, the kids you know. They were just getting shoved around I didnt say anything to the police about that; really scared.iii Randy is five-feet ten inches tall, shorthaired and handsome. It's almost impossible to tell what's going on inside him because he doesn't talk very much, at least when I'm around, and his face, except when he smiles the beautiful gentle smile of his mother, gives very little away. The little I know about Randy I learned from Marilyn, from watching him move through the world, and from what I saw when I took his picture. We were standing in the dining room of the Fryinpan's townhouse, home to Marilyn and her sons. A very amateur photographer, I was trying to line Marilyn and Randy up with the light from the dining room window. This involved the rearranging of furniture, the opening of curtains and the placing of people. When I finally had everything just right, Randy standing behind his mom, I asked them to look toward the window. This was my concession to shyness, an outcome of my personal belief that while having your picture taken is bad, having to look into the camera is worse. In my opinion, it's always best to work up to these things. My concession, as it turned out, was unnecessary. When I said, 'OK, now look toward me' there was no hesitation on Randy's part. It seemed to me he had something he needed to say - something he hadn't been able to articulate. From what I heard that something was: I'm stronger than you think, but I'm afraid and I'm angry. Here's what Randy has to say: It was around 11:00. I went to visit a couple of friends of mine who lived in the complex. There was C and O and another girl, but I didn't know her. It was someone's birthday party, so we started drinking. Then I went home and a couple of my friends came over. We decided to go walk around the complex. We walked to my friend K's house and we decided to warm up in her mom's car. We'd done that about four or five times before. We just sit there and hang out. The car's been there for a couple of months because there was no battery, it didn't work, and the tires were flat on it. I don't think it was ever locked. I was staggering when we were walking to the vehicle. I don't remember getting into the car. I saw it, and that's when the blackout occurred. The next thing I remember is being handcuffed. I remember my hands were on the top of the hood, and I spit out my tooth with blood, because it was building up in my mouth, and the cop that was handcuffing me was - well he said if I do that again, he'd beat me up. I remember being put in the police car. I remember three police cars and three police officers in the car with me the two policemen in front were wearing uniforms and the one in the back didn't have a uniform. They were talking about the incident, what just happened. I was taken downtown. I got strip-searched in a room like a locker...they told me to take off my clothes and turn my earlobes, and they told me to bend down, and then they told me to lift my - my... my sac and they put me in a cell.

I wasn't feeling too good. I - I felt beat up. I could hardly walk, and my muscles were giving out on me. I fell asleep in the cell and then a lady came and woke me up. I felt hung over and beat up, and my back hurt and my left eye. Then I went to see the JP. And he told me I was spending the weekend in gaol....And then I got driven to EYOC by a police officer. The staff at EYOC strip-searched me there again - then a lady that was working there she seen the marks...she was wondering what those marks on my back were. I told her I have no idea, and she told the police officer that I have to go see a doctor before I could stay there. So the police officer drove me to a hospital. I don't know where it is though...I was told I had to be on a 15-minute watch...for my head...there was a taser mark on the back of my head...and for my tooth. I was given Tylenol for pain. When I got out I went home with my mom. She took me to the doctor because my back was hurting a lot. I had headaches all day and I couldn't sleep. I was always sad, I didn't want to - I didn't laugh, or smile, or nothing. I - I have nightmares of me squirming on the ground, um, getting beat up, and people, but I don't know who the people are. The doctor gave me Tylenol 3 and an antidepressant for sleep. When I got home my mom took photographs. At this point Randy, on the witness stand, goes through the photographs and lists what the pictures represent: The top left shows the broken tooth. And the top right - part of my neck - that shows a taser mark. The bottom left picture is my black eye. The bottom right is a taser mark. Page two, the top left is a scrape and taser mark. The top right is a taser mark. The bottom left is a cut on my pinky finger. The bottom right is a ...a mark, but I don't know what put the mark there though. On page 3, the top left is a taser mark. The top right is a taser mark. The bottom left is a taser mark. Bottom right - those are taser marks. And the last two photographs of my back... these are all taser marks. iv When Mr. Engel asks him if there are any area not shown in the photographs where there were taser marks, Randy says, 'Yes. That's on my left leg, by my penis.'

C, one of the boys in the car with Randy, was 14-years-old when the assault happened. He came to court wearing shackles, transported from the Edmonton Young Offenders Centre. He's tall, thin, and somewhat hyper in his movements as if at any moment he might laugh too loudly or swear in anger. He acts out his testimony with sound effects and hand gestures, blocking his face with his hands and rolling his upper body back and forth, mimicking Randy. His value as a witness is hampered by a couple of things - of all the kids, he and Randy were the most intoxicated when they got into the car. And when the police showed up, C's own sense of self-preservation took precedence over his concern for others. He had a warrant out for his arrest at the time. He wanted more than anything to get the heck out of there and so, he ran. A man in plain clothes- whose existence has never been admitted to or identity revealed by police - brought him back. At some point in there, several people heard the dog unit member recommend sending the dog after him. He gave the police a false name, which was run on the EPS computer at 3:12 am and, after Randy's arrest, he was driven home. When the police arrived I saw, I don't know, cop cars coming in; I saw like two for sure, but there was more than that. I saw two pull in, and I'm pretty sure the other one went to the other parking lot. A couple cars came after and then the cops started questioning everyone. One police officer was beside me, and Randy was over there, I don't know, like three or four meters away. I seen Randy down on the ground, and I said, you guys supposed to be doing that or what. And the cop didn't answer me, and I don't know, they - I'm pretty sure I seen a cop kicking Randy. And, uh, they were tasering him too...I saw little flashes of blue light. I couldn't really see Randy on the ground, because the cops were around him and they were just kicking him. I'm pretty sure one cop was laughing. I heard laughter and I'm pretty sure no one would be laughing while being arrested or getting beat up. I think they were having fun beating up Randy.v O, the other boy who was in the car with Randy, was 13-years-old at the time of the incident. The first thing you notice about him is that he's not very tall and it's probably fair to speculate he was no taller two years ago. This is only relevant as an answer to the question: are these kids in the car or dangerous criminals? O looks like a kid to me. But then I'm not a police officer in the middle of the night in Abbottsfield. And I don't have years of crime fighting experience behind me. O gives the impression he wants to testify. He wants to talk about what happened to his friend. And he, like C,

seems compelled to act out what he saw. The cops pulled up, told us to get out, and Randy was passed out in the back. And then the cop, was like 'get - get on the ground'. There was like a puddle, right. It was raining. And they were like 'get on the ground' and I was like 'no'. And then he's like 'get the fuck on the ground', and then I just got on the ground in the puddle. C tried running and then the cop's like, 'oh, just send the dog on him' and then C just stopped and he, the cop, went and grabbed him. I was on the other side of the car. Randy was still in the back seat, he was passed out, like he was really passed out and they just pulled him out. He was going like this to his arm - trying to take his arm away from them and they just pulled him out and ... started tasering him... about five or six were circled around him. And then I never really seen anything after that, but I seen them taser him. I seen the taser. When they told me to get out of the car, the taser was like pointed at my head. And when the taser was being fired it was like a little blue neon light. Every time Randy was tasered he just basically screamed. They tasered him a couple of times in the back and then he ended up by the fence. Then they were all in a circle and after that I couldn't see anything. I couldn't really see them touch him but I seen them like move their hands when they were all around in a circle, back and forth like this like they're hitting him. When he was being handcuffed over the hood of a car I think his pants were down. I think they tasered him there too, by his leg. They took him to the cop car, and I think they tasered him one more time again when he was up by the cop car, standing up I know he was tasered because I heard screaming and I heard the taser, and I seen it. Randy didn't try to make a run for it, he ended up by the fence because he just started moving more because they were tasering him. I was upset because of what happened to him.vi H, who was 12 years old in October 2002, is the mystery girl. For one thing, the police do not acknowledge she was there - in the car, even though they ran her name on the computer at 3: 13 am and everyone one else, including her, is certain she was there - in the car. The detective with EPS Internal Affairs discounted her as a witness because when he asked her, almost two years later, about the time she tried to steal a car, she had no recollection. For another thing, none of the people she was hanging around with that night knew her last name, she didn t live in the complex, she was just visiting for a few days. So, it took awhile to track her down. H is at that awkward age for girls. The age when youre never sure how to hold your body, not confident with your changing shape, not yet settled into your femininity. She looks to the side when she's answering questions as if she wants to believe she's in some other room - a room where people aren't looking at her and no one really cares what she's saying. When I got out of the car there was three cops on the side of the car that I was on and there was like two or three on the other side. They were handcuffing us and I just looked over my shoulder and those cops were just beating up somebody. They were like blocking him, and he was just screaming, then he started shaking. They leaned him like a little bit on the car, and they just - he - they just like - they were going close to him and they were just holding him back, and he just started shaking and he was just screaming. It sounded like someone was killing him or something. He was just shaking real fast...he was like leaning back on the car and he just started shaking all of a sudden. I only looked for a couple of seconds, because I thought they were going to do something, so I just sat - just standed there for awhile, because they just - they were just hitting everybody for nothing. They had a taser pointing on me and O. I know it was pointing on us because the little red light was shining on it. They said if we run they're going to tase us. I saw little red lights getting pointed at everybody. I didn't see a police dog there, but I know they asked C if he wanted to go in the car with it.vii

Vanessa Bigcharles lives in the townhouse directly to the right of the parking space the car was sitting in when the police came. Thin with long hair pulled tightly back from her face, she appears worried, tired, sad and at the same time very, very alert. She holds her back arrow-straight, she gives precise answers, she desperately wants things to be right. Vanessa was interviewed by Detective Topp from EPS Internal Affairs on December 23rd, 2003, a year and two months after Marilyn's complaint. She doesn't understand why it took a year for the police to contact her - she still lives at the same residence -the residence from which the phone call to the police was made. She has a message machine, if anybody had called, she would have called them back. When she was interviewed by the detective, according to her, she told him there was a lot of force used but he didn't write it down. He wrote the statement, she read it quickly and then, because he was in a hurry, he left. There was noise outside...car doors slamming...just a couple of times...Tim and I both went and looked. It was just some kids in the car about ten feet away from our front door. The windows were all fogged up, so we couldn't really see how many. There was just talking really loud, loud talking, laughing.

I went outside and I asked them to leave, I told them that I had kids that were sleeping, and I was trying to sleep. I told them if they didn't leave I was going to phone the police. Nobody responded to me, so I didn't know whether anybody heard what I was saying. I just went back in the house and Tim phoned the police. Then my baby woke up and I went upstairs.When I came back downstairs to make a bottle for my baby, the police had shown up. I was watching from my side door - ten feet away from the car. I only saw two police cars. One, and then one right after. They were just asking them to get out of the car and no one was responding at first. Then they opened the doors and I remember a girl and two other boys that left the car...it's just the one gentleman that was still in the car. I remember when they got out of the car there was another gentleman there that said one of the kids is taking off and he went after him. He's the only one I saw without a uniform on. And then I went upstairs to tend to my baby. I was feeding my baby and I heard screaming - I remember hearing the crackle of the taser, and somebody screaming leave me alone, I believe it was the boy, and I went and looked out the window. The first thing I saw is him being tasered... The police were telling him get out, yelling get -telling him get out and then the taser was used, and then they were forcing him out of the car. They tried getting him up, and he was struggling with them. They got him up, they tasered him another time, one more time. And then I tended to my baby so I don't remember anything after that except a lot of screaming and police officers telling him he's to calm down. That's all I remember up until I looked out the window again. And then I just saw them put him against the police car with his stomach on the police car and his head down on the police car and his pants falling down. He was screaming," I'm going to die, I'm going to die"... And that' s all I can remember. I regretted calling the police because I was causing Randy Fryingpan pain. Like he was in lots of pain, he was getting hurt. It just didn't -didn't seem right.viii

Tim Diserlais was spending the night at Vanessa's on October 5, 2002, visiting his son. He's a small man, high energy, feisty. He knows what he knows. He saw what he saw. He's so strangely determined that there was no girl in the car it's as if he's been arguing that point with an unknown someone and that argument is continuing in the courtroom. Interestingly, he, of all the civilian witnesses, was the only one to be interviewed by EPS Internal Affairs shortly after the incident. His statement was taken in November, 2002. Of all Randy's witnesses, he had the most comprehensive view, from start to finish, unaffected by either alcohol, fear or babies who needed tending to. There were doors opening and closing while I was trying to sleep. My van's parked right there, so I thought they were trying to steal my van. Then I look out the window, they're in the car next to my van and I just called the cops because I thought they were trying to steal the car. I've got tools and stuff in there for work, in my van, so I didn't want none of that going missing, so I called the cops. I looked out the one window and seen them get into the car, and then that was it, I just called the cops...The windows were all fogged up. I couldn't see how many people were in there. I couldn't see what they were doing. All I know is that they woke me up in the middle of the night, it sounded like they were trying to steal something - if you hear rattling, you know what they're trying to do - so I just called the cops. I was standing at my front door when the cops got there. The door was wide open. I could see the front end of my van, and I could see the car. Cop pulled up. I'd say one, two, three, four cars...three I know for sure...one of them, I do believe, parked in the front of the house. With bushes, and back of my van, I couldn't see. They - I can say six officers for sure I seen out there - they went to the drivers door first - then to the back doors...because they sort of stood at the one door so they couldn't open it. So one of them just sort of stood right there and opened the door - grabbed one out, and then did the exact same thing on the other side. That's when I see the blue light, and a big crack and like screaming - in pain. I could see just the top of his head, that was it. Before he got tasered he was just moving his head back and forth - that was it, to see, to look around. And they dragged him out, put him on the ground, because he wouldn't put his hands behind his back or anything. He jumped up, waved his arms around or whatever, tried to brush the cops off because he was in pain. Next thing you know, I seen this one cop over his head, hit him in the back of the head. He fell down, and that's when I didn't see anything else, but I heard the taser lots - every time he pretty much tried to do something, get up or something, they'd just hit him with it...it was more than six times I'm thinking...from the first taser shot to the last one would have been about ten minutes. He was screaming through the whole thing. From the first time they hit him with the taser right till they put the cuffs on him, like he was going to die because he was in so much pain. Three of them had him on the ground, and three were just standing there watching the other ones on - on the side of the van...because they had them all lined up on the side of the van.

He jumped up, they picked him up, took him over to the cop car - he had the cuffs on him, pants down to his ankles over the hood of the car, and that was it. I closed the door and went inside. One of the kids, after he said sorry to the lady that owned the car, he tried sneaking off. And then...I think it was a ride-along or something, because he wasn't in uniform...he went chasing after him. One cop said, " don't worry about him, we'll just send the dog after him and let the dog deal with him"...then the ride-along or whatever came back with the kid. The dog came right in front of my house and then they took him back. They were all males. I knew that for sure, because I was standing there watching -Yeah, they were males. They were all males, because when they got out of the car they all had short hair and baseball caps on.ix Now for the police testimony: Constable Michael Foote stands in the witness box like a soldier at ease, his hands clasped behind his back, his feet a foot apart, his eyes straight ahead. He's very determined in his ignorance. He's been a member of the Edmonton Police Service for fourteen completed years, sir, and on October 5th of 2002, he was working out of Support Division, Canine Unit, a Unit he's been with for seven years. He begins his testimony by claiming he is unaware of Randy Fryingpan's allegations of excessive use of force. He says he's just hearing about it now in court. Nobody has mentioned it to him, not even the other officers who've been sitting with him the anteroom outside the courtroom. He's under the impression he's in court for a - breach of something. He's surprised he's even in court. He doesn't understand why he's there... On the other hand, he did provide a statement dated November 23, 2003, and he was contacted by Sergeant Triplett of the EPS taser division to ask his involvement in the situation and, now that Mr. Engel mentions it, he had heard there was a complaint put in, but he didn't know to what extent, or what it was, no sir. It turns out, after some wrangling with Mr. Engel, that he recalls Detective Topp calling him and asking him to provide the November 23 statement mentioned above. Apparently the detective, a year after the actual incident, wanted to know what Constable Foote had done that night. Although the detective didn't outline the specific allegations or offer to interview the constable, he did ask if Constable Foote remembered an incident that happened and the constable said: "vaguely, yes." The totality of his recollection is: The call came in, theft of auto in progress, at Abbottsfield Road. Me, being with the Canine Unit, I respond to all those type of situations like that. I pulled up to the area, up into the driveway there off of Abbottsfield Road into the parking area, into the condo complexes there. I got out of my vehicle, and there were numerous cars already on scene. I looked around, I saw that everything was under control. There was no one struggling or screaming or yelling or anything at that time, so I jumped back in my car and I left. He didn't count how many police vehicles were there - they were all over the area, the parking lot was blocked off, and even though he wouldn't like to guess how many cars were there, it was probably more than three, not counting his own vehicle. He can't honestly remember if his dog got out of the car, although he would dictate if his dog was deployed and, according to police records, there was no other dog unit at the scene. Also according to police records, Constable Foote was dispatched at ten minutes to three, the kids were in custody at three minutes past three and Constable Foote was available for another call at thirteen minutes after three. Nevertheless, according to him, it took him those twenty-three minutes to drive up, notice no one was screaming and drive away. x

Constable Pierre Blais is young with wavy black hair and the body of a wrestler. The main thrust of his testimony could be summed up in four of his own words: that was not me. On the 5th of October, 2002, he was working with his partner, Constable Ryan Sparreboom. Ten months later, in August 2003, Detective Topp of EPS Internal Affairs contacted him about a complaint that had been made by the mother of Randy Fryingpan. Because Constable Blais had no recollection of that night in particular and although he knew Constable Wasylyshen was the prime suspect of the complaint, he asked Constable Wasylyshen what it involved, and Constable Wasylyshen refreshed his memory. That event, for Constable Blais, was a non-event. According to him, he didn't do any investigative portions while at the scene, it was just another regular call and nothing about it stood out in his mind. As the Constable explains: "...it was quite some time after that date the request was made upon me to provide some

information. So I spoke to Constable Wasylyshen just to refresh my memory in regards to what happened that night. Like he wasn't telling me what he was doing there, he was just telling me what the situation of the call was...and that's when I recalled from memory what my observation were." In his memorandum, written August 19, 2003, on the same day but not on the same computer as Constable Sparreboom's statement, he says: "I was working with Constable Sparreboom on this night, and recall upon our arrival at the location, there were several youths that were just standing around a vehicle parked out front of the address. Constable Wasylyshen was already on scene and had one person in custody. That person, identity unknown to me, was already in the back of Constable Wasylyshen's police vehicle. At no time did I observe any type of struggle or assault by anyone. Upon my arrival, it appeared that everything was in control and there wasn't any need for further police involvement." That's his recollection. He did not transport anyone, he did not speak to anyone, nor did he go speak to a complainant - yeah, he was basically just a bystander at that call. He did speak with Constable Sparreboom prior to writing the information for Detective Topp, but that was "just in regards to, uh, what he saw that night is what I saw." Apparently, Detective Topp failed to mention to the Constable that when preparing his memorandum he shouldn't really discuss it with the other people first. Subsequently, as a result of Constable Wasylyshen contacting him and indicating that there was a disclosure request, Constable Blais prepared a Police Member Witness Form, dated November 19th, 2003. He refreshed his memory for that particular document from his Internal Affairs document. Although Constable Wasylyshen, in his statement of October 7th, 2002, writes: "Upon arrival, assisted by Constable Blais and Sparreboom, we arrested all individuals for tampering with auto", Constable Blais reconfirms that he didn't make any arrest that night, no. From his recollection that's inaccurate. He did not partake in that, no. And although Constable Normand's statement of October 15th, 2003, states, in part: "When we had at least four patrol members on scene we simultaneously opened the car's doors and arrested the subjects for possession of stolen property. All of the detainees were cooperating with the exception of a male that Constable Wasylyshen was trying to handcuff...by either placing my subject in the back of my patrol vehicle, or having a second member take custody of the body, I went over to assist Constable Wasylyshen. Now with the assistance of an additional member, we were able to lift the accused from the ground, lean him against the vehicle and successfully handcuff the subject." - and although, as we understand things, the officers who attended the scene were Wasylyshen, Normand, Blais, Sparreboom, and Foote - and Foote has told us that he arrived later, after everybody was in custody, Constable Blais says: "That was not me. I wasn't there. When I arrived there were several youths standing around a vehicle, and I didn't see any struggle, and there was a subject in Constable Wasylyshen's back seat of his police vehicle. I did not arrest anybody, I did not take anyone out of the vehicle. That wasn't me." He then suggests that perhaps some other officers, who hadn't booked off on that particular call, were there to assist, he doesn't know, but it was not him. Booked off, which he elaborates on, is booked off on the EPS mobile workstation - saying that an officer is on a particular call and when they've arrived. According to Constable Blais, it happens all the time that officers don't book off - he's done it himself several times. He would say he saw, definitely, more than three officers at the scene that night, not including himself, his partner or Constable Wasylyshen, whom he did not see. He also recalls seeing a couple of cars driving by on Abbottsfield Road. According to Constable Blais, typically, a call of theft-of-auto-in-progress attracts a lot of officers just in case theres a police pursuit with that vehicle, but for him to say who was there in Abbottsfield that night, he couldnt say. Earlier in his testimony he tells us that he doesnt recall doing any CPIC checks that night, but during crossexamination by Ms. Yacyshyn this exchange takes place: th Ms. Y: Would it surprise you if I told you that you did actually run some CPIC queries that night on October 5 ? Const. B: Yes it would. Ms. Y: That according to CPIC, you had run three names that evening, one at 3:12 in the morning, one at 3:13 and one at 3:14. You don't recall any of that? Const. B: I don't recall running any names, no. Were those names queried from our mobile workstation? Ms. Y: According to the information I have, you were Reg. Number 1900 and the CPIC queries come back to that reg. number...Now does that mean that you ran those queries, or is it possible that somebody else could have run those queries under your reg number? Const. B: It's very possible someone could have used the police computer in my car to run those names.

This mystery is explored a little longer by Ms. Yacyshyn and again in re-examination by Mr. Engel. Through these explorations it becomes clear that while the mobile workstation in Constable Blais and Sparreboom's vehicle was logged on under Constable Blais and used to run the names of H, O, and C, an unknown officer must have done it. It was not Constable Blais.xi And last but not least, Constable Mike Wasylyshen. In this case I'm giving you sections of the actual transcript. Pretend it's a movie. Tom Engel - six-foot tall, partially balding, partially dark-haired lawyer, glasses, moustache, and dark blue suit is questioning the Constable - five-foot eleven, one hundred-eighty pounds, completely bald, wearing his full working uniform, including his taser and what looks like a bullet-proof vest. The Constable tells us he's been an officer with the EPS for five years. As the officer in charge of the Fryingpan matter, he was responsible for responding to disclosure requests - if Randy's lawyer wanted any information from the EPS about what had happened that evening, he had to go through Constable Wasylyshen. At least this was the case until the complaint became an Internal Affairs matter. Unfortunately, as far as the Constable can recall, he didn't hear about the Fryingpan complaint until a year after it was filed. He thinks, although he has no recollection, that he was notified in November of 2003. Although he doesn't remember how he was notified, he thinks Detective Kobi sent him an e-mail. And then he thinks Detective Topp took over the file, and then he believes Detective Houle. But he's not sure when the e-mail from Detective Kobi reached him. But let's just listen, patiently, to his testimony: In that e-mail did [Detective Kobi] outline the allegations? In the e-mail, no, he did not, no. So are you saying then that the allegations were only outlined to you about three or four months ago; did I get that right? The allegations were outlined to me when I actually attended Internal Affairs, and I apologize, I don't know what date that was when I was read the summary of the complaint. The e-mail strictly said Detective Kobi, Internal Affairs, to the effect of have to meet with you over some matters. So when you met with Detective Kobi I never did meet with Detective Kobi. Sorry, you met, and a summary was read to you? By Detective Topp. Okay. And as I understand it Detective Topp, who had taken over this file, according to his notes... Have some water, please? According to his notes, he received the file May 27th of 2003. So, it would have been sometime after that? Yeah, obviously would have been after that. ... Okay, go ahead and now tell us about what you saw and did upon arrival at the scene. Arrived at the scene, it was 3:00 am October 5. I was working with Constable Normand. I don't recall who was driving or anything. We pulled up behind this vehicle parked outside Abbottsfield Road, which notably had what appeared to be about four occupants in the vehicle. And as previously specified, I thought on the dispatch call, the rear vent window was broken out. And as I walked up, I could see that the ignition was damaged on its left side of the column, and there was before I opened any doors or anything, when I approached I noted that there was four males in the vehicle, two in the front and two in the back. So I approached from the driver's side of the car and Constable Normand approached from the passenger side. I opened the front door and identified myself as a police officer, and asked the male occupant in the front driver's seat, to exit

the vehicle, which he did cooperatively. I placed him in cuffs and turned him over to near the area of my patrol unit, which was parked probably, maybe, ten, twenty feet behind this car, very close. Constable Normand dealt with the passenger in the front and back of the passenger side of the vehicle, and I didn't really pay much attention to what he was doing. I went to get in the back door there where Mr. Fryingpan was sitting in the rear passenger seat of the driver's side of the vehicle, but the door was locked, the rear door was locked, so I had to kind of poke my head over the driver's seat. Immediately I noticed that Mr. Fryingpan was under some sort of intoxication. At that point of course I didn't know exactly what. Appeared to be kind of in a groggy sleep, kind of crunched into the corner of the back of the car there. When I identified myself he didn't say nothing, just kind of rustled and turned over. I reached around from the drivers side, unlocked the back door and made my way around to the back door of the car, where I opened it, identified myself as a police officer and told him he was under arrest at that point and took hold of his arm. At that point, Mr. Fryingpan became I'd say kind of slightly awoken and started to scream at me, told me to fuck off, pushed my arm away with his left arm, batted it away and pulled the door closed on me. So, I reopened the door, pulled my taser out of my holster and took hold of Mr. Fryingpan's left arm again. And with the taser in stun mode, so there was no dart deployment, went to make contact probably somewhere - it would be somewhere under Mr. Fryingpan's left arm, somewhere in there. Of course, this all happens a lot quicker than I'm saying it, but deployed the taser, but was only able to get approximately a two-second burst out of it, because Mr. Fryingpan again batted my hand away and - and kind of pushed me back away from him. I repeated that same response one more time, to no success of mine as Mr. Fryingpan again pushed me away and batted my hand away, moving the taser from contact with his body. And then he slid over to the passenger side of - the rear passenger side - of the car now, because I'm on the driver's side. So at that point I backed up a little bit, instructed him to get out of the car. He started yelling at me, fuck off, leave me alone, that sort of thing, and exited the vehicle very quickly and violently, yelling and screaming at me to fuck off and leave him alone. So when he exited the vehicle I was able to take hold of one of his arms and Constable Normand joined me at that time. We were able to force Mr. Fryingpan to the ground, on the grass next to the car. At that point while I was holding Mr. Fryingpan down, I believe I had hold of his - I think it was his left arm again, and I deployed the taser one more time into Mr. Fryingpan's back to demand some compliance from him. Compliance that I got was that Mr. Fryingpan tried to bite my hand that was now up on his shoulder. I released him, deployed the taser again, which was unsuccessful, because with the wiggling and whatnot the contact with the taser is immediately broken and is renders itself pretty useless. I remember trying to taser Mr. Fryingpan one more time on the ground, but I ended up tasering myself, an uh, coming up and head butting Constable Normand, who kind of stumbled back too. And at one point Mr. Fryingpan was able to stand up and try to run away. So at that point I grabbed Mr. Fryingpan with my left hand, because my right hand is still obstructed by a taser in my hand, hit Mr. Fryingpan with the heel of my palm and possibly the butt of the taser, where I'm not sure. Somewhere - be somewhere on his - left side of his face or cheek area. At that point, Constable Normand got back up. We grabbed Mr. Fryingpan, both again, forced him against the hood of the police car, because now we've wrestled our way from the suspect vehicle to our police car. And we were able to hold him down on the hood of the police car, but Mr. Fryingpan would not give up his hands in attempts to - for us to handcuff him, and he began to spit on the hood of our car, and uh, screaming obscenities at us and whatnot and flailing his arms. I went to taser Mr. Fyringpan again, probably in the lower back area, and of course contact was broken again, only allowing me to get a - probably a two-second cycle through on the taser, um, because Mr. Fryingpan's moving. And you know how a taser works; obviously if it's not touching you it's not working. Um, he continued to struggle. I tasered him one more time, which I think I finally was able to make a good contact holding him against the car, enabling him to be temporarily immobilized while Constable Normand and I handcuffed him. And then after the ordeal, Mr. Fryingpan became extremely cooperative. ... Constable Wasylyshen, how many officers were involved in opening the doors of the car? Uh, to my recollection, Constable Normand and I. Could you be wrong about that? I don't believe so, no. Okay, how many officers were involved in arresting the four individuals and dealing with them? Uh, to my recollection arresting them, Constable Normand and I.

And could you be wrong about that? Not to my recollection, no, I - no. Would you please look at your R2 report of October 7, 2002, please? Yeah. Paragraph 2: Upon arrival, assisted by Constable Blais and Sparreboom, we arrested all individuals for tampering with auto. Is that what you wrote? That's what I wrote. Is that wrong? It's - it's not wrong, it's, uh - I think you have to understand when you're dispatched to a call, first of all what happens is dispatch will ask for a car for a certain event, in this case this incident. He'll dispatch probably, to an incident like this, a couple of cars. And in this case, I believe, from the event chronology, our car, Constable Normand and I, and Constable Sparreboom and Blais's car, and I believe Constable Foote was dispatched also. Um, those cars are called for assistance, and I think being assisted by them I'm meaning that they were on the call, is I think probably what you're referring to. .... Did you review the statement given by Constable Normand, the R2 of October 15, 2003? ... Yes, I did. ... Okay. Look at Paragraph 2. We arrived on scene and quickly found the vehicle in question. The windows were fogged up, and I recall at least three people in the vehicle. In addition to the three people inside of the vehicle, we could see that the left side of the steering column had been damaged. When we had at least four patrol members on scene, we simultaneously opened the car's doors and arrested the subjects for possession of stolen property. M-hm. That's what he wrote. Apparently. Is he right or wrong? I don't know. About four I don't know how many members were on scene. What I have testified to is that Constable Normand and I opened - I opened the driver's door, Constable Normand opened the passenger's door. Together, me and Constable Normand, arrested the four individuals. Well, was he right or wrong when he says we had at least four patrol members on the scene? I can't answer that. I don't know who was on the scene. I don't know who was parked out on the road. I'm telling you when I pulled up, from my recollection, I went to the driver's side door and opened it. I arrested the driver - well, wasn't driving, but in the driver's seat. Subsequently, I arrested Randy Fryingpan in the back seat. Constable Normand arrested the other two males that were in the vehicle. Whether there was two others, because I'm assuming he's adding two to our two, whether there was two on the scene or not, I - I couldn't tell you. I don't - I - not from my recollection there wasn't.

And we've heard from Constable Blais who says that he showed up after everybody had been arrested...and he says that he recalls at least five or six police officers being there when he and his partner got there, and he doesn't see you there, okay, and he says that one was Foote, one was Normand. He says that he may be wrong about that, but he recalls that there were at least three officers there other than himself and his partner. No, not to my recollection...that I arrived first on scene with Constable Normand, we arrested the individuals. I was probably already dealing with Mr. Fryingpan by the time anybody else showed up. Now, in total, I guess there probably would have been five, but that's not at the beginning of the incident. That's Constable Foote likely driving up , seeing that everything's okay, and leaving; that's Constable Spareboom and Blais likely doing the same thing; and me and Constable Normand. Did Constable Foote have his dog out of the vehicle? I don't recall if he had his dog out or not. Look at Paragraph 10 of your R2 of November 3rd, 2003... the one that starts: I cannot, after numerous attempts, get a hold of Constable Foote. I do recall, though, that his involvement was limited, as he stood with his leashed canine at the scene. I know he briefly dealt with another individual from alleged stolen vehicle who took off running in handcuffs, but was later released after CPIC checks revealed negative on the car, revealed not to be stolen. That's what you wrote, right? Yeah, I hadn't reviewed that R2. So your recollection is that My recollection is still the same. I don't recall. Okay, and you recall him pursuing the individual? I don't, I said. Oh, you don't? I believe I said that in the beginning. I said I don't recall him having his dog out, I don't recall him pursuing an individual. But you did on November 3rd? That's possible, yeah. But you're asking me if I recall; I don't. Well, look, I mean you didn't write this down having no recollection of it. That's the recollection you had at the time you wrote this R2, right? Yes, seven months ago. .... Now, Constable you said that you opened the vehicle door and you told Mr. Fryingpan that he was under arrest, then you took hold of his left arm? That's correct. Okay. I - originally, like I told you, I had spoken, well, at him I guess, because he was apparently passed out to some degree, spoke to him through the driver's side door at the driver's seat position, because the back door was locked behind which he was sitting. Now, be fair to say that when you got in the front seat and turned around and started dealing with Fryingpan - this is how it

worked; right? You immediately noticed that he was extremely intoxicated by his slurred speech? That's correct. You also noted in trying to deal with him that he was groggy and kept falling asleep while you spoke to him, which further showed his level of intoxication to you? That's correct. Now, you wouldn't be surprised, would you, that Mr. Fryingpan would have no comprehension of what's going on, given this level of intoxication? When I was talking to him, he - I don't think he really knew at that point what was going on, no. And he gave no coherent response to what you were saying to him. Is that fair? That's fair, yeah, he did not. .... What did you tell Fryingpan he was under arrest for? At that point, I told them they were under arrest for possession of stolen property and slash, tampering with auto. You told Fryingpan this? Yes, I did. Now according to your report to Topp, November 17, 2003, you say that you told him that he was under arrest for being in a stolen car. Is that what you told him? I don't recall the exact wordage I used. There's no such offence as being in a stolen car; right? Well, there is joyriding, and it still is possession of stolen property. I suppose my wordage is not correct, but But you knew that in order to charge or arrest somebody for that, you'd have to have reasonable and probable grounds to believe that they knew that they were in a stolen car, right? I think at a scene, for many reasons, it's not unreasonable for me to arrest people for being in a car that I believed to be stolen at that point. Well, let's look at you notebook entries, okay? You write on Page 145: "Was arrested for being in an auto with steering column punched." Is that right? That's correct. Then you write on the next page at the top: "Was arrested, intox in public." Intoxicated in public? That was later, that was in the back seat of the car after we had ascertained that the vehicle was not stolen. What inquiries did you conduct to determine whether the vehicle was stolen before you decided to place Mr. Fryingpan under arrest for being in possession of stolen property? Sorry, what inquiries did I make before I did, or - or - before I arrested him? Right.

Well, the inquiries was simply I had the - the dispatched information that there was these four youths in this car, that the car may have appeared stolen, there was a vent window punched out, and the ignition was damaged. And my recollection of the information was that somebody may be tampering with the steering column. I think that, as a police officer, right there that gives me the grounds to arrest him. I would hope it does. It doesn't leave a lot of time for investigation. It would have if he was cooperative. The other three people in the car, I had no trouble explaining to, and they said kind of - we don't know whose car this is, and we're not trying to steal it, and then after that it was kind of apparent. But when we went to deal with Mr. Fryingpan, that changed. When you approached the vehicle and looked inside, from what you could see, it was just four kids sitting in a car; right? It looked to me like it was attempted to be stolen. Okay, but what were those kids doing in the car when you approached it, other than just sitting there? Not much else than sitting there when I got there. Did they have any tools in their hands? Not that I observed when I first walked up. Did you ask any of the kids, well, what are you guys doing? I believe I did later, yeah. Now can you describe in a little more detail how you tasered yourself? It was at the point where Constable Normand and I had taken Mr. Fryingpan to the ground. It was at that point when we had him held on the ground, and we had a pretty firm hold on him and we were attempting to handcuff him at that - or Constable Normand was, when - that was when Randy Fryingpan tried to bite my hand, because it was on his shoulder at that point. He reached back like this and tried to bite it. That was when I took my hand off and went to taser him again - and I'm guessing; like I said, this all takes place in a minute - in the lower back area, but missed. And I was kneeling in a puddle of water, it went straight up my leg into me. And the reason I recall that is, well, first of all you would recall if you've been tasered; and second of all, I think for sure I head butted Constable Normand, knocking him back off of Randy Fryingpan, which is at the point when Randy Fryingpan got up to run away. So that's how and when I did taser myself. -and this was an involuntary response on your part. You didn't mean to head butt Normand? No, I did not. It was a result of an involuntary response from being tasered? Yes, it was. And so to somebody else it might look like you were deliberately head butting Normand, but you know it was because of the taser; you didn't intend that? Yes. And you were aware when you were tasering Fryingpan that the flailing of the arms and this sort of thing could well have been involuntary muscle responses from the taser? No. There's difference between movement to avoid the control of the taser and then almost being - being assaultive. When Mr. Fryingpan exited the vehicle, and I'm moving back a touch here in the incident, Mr. Fryingpan exited as if he wanted to fight. He was aggressive, and he was violent, and he was intoxicated. So when he came out of the car like that, and he's and like I've noted in my report here and stuff, coming out yelling fuck you, leave me alone and things like that, that's not being resistive, that's being assaultive. Now, I'm going to get to your question here; I just have to explain that part. Now, yes, I'm aware of the involuntary muscle contractions and stuff when being tasered, and it might appear to somebody else, as you put it, that they're flailing around because of that. But between the taserings there's no compliance, and that's the

difference. Because I have used the taser, it has been effective before when I tasered people. Because one time and they go, oh, and I don't want any more of that, and it ends. That's when it ends. That's not up to me, though, that is up to the subject. Between those taserings Mr. Fryingpan had the opportunity to try and bite my hand, to be hitting my hand away every time, and to be flailing around; and then after we wrestle him to get up and try and run away; and then spitting on my car hood. So in fact - in fact there is no time - there's been times, yes, in the past not with Mr. Fryingpan, but with other people, when somebody's tasered you know they can't give you their hand because of involuntary muscle contractions. But between taserings - and maybe once out of all these taserings was Mr. Fryingpan tasered for near a full cycle. Between these taserings I never had any compliance, and that is not because of the taser anymore, that's because he's being resistive. When you tasered yourself, the taser itself - the contact points on the taser - did not have contact with your person; is that correct? I don't believe they did. You know, it may have even hit my knee, but I think it went into the puddle. And did you get the - it's a five-second cycle; right? That's correct. Did you get the full five seconds? No, I didn't, because I was fortunately in control of the taser. I was able to pull it away. And would you expect there to be any marks on Fryingpan's body if you only got him for two seconds through clothes? Yes, I would...when they give us our one jolt - like they give us one to two seconds in taser training. I know for a fact a member in my squad was tasered probably eight months ago now and still has marks from it. And that's from a one-second jolt. Because it's amperage and voltage going into the skin, and skin is very, very sensitive. And it burns, right? Very quickly, yes. So you knew that when you were doing this to Fryingpan that you'd be causing burns to his body? Yes, that's one of the effects of the taser. You knew that these scars for the burns could be on him indefinitely? Oh, no, they do go away, but they do last for awhile. Would it surprise you if I told you that Mr. Fryingpan still has the scars from those burns? No, it wouldn't. Like I told you, I said I know a member myself who's eight months and still has what appears to be little scars, yeah. .... When did you first find out that the data port information in the taser revealed eight cycles of the taser? Not until I asked to see a copy after Constable Goodkey pulled copies of the data port information and I don't know exactly when that would have been. Did you receive this information about what the data port material revealed before you prepared the November 17th report to Detective Topp? No, I saw this long after. All right, and in any of your reports including that extremely detailed report to Detective Topp, did you reveal that you accidentally tasered yourself and head butted Normand?

No, I didn't. And you see from Exhibit 25, that's Normand's report, that he doesn't mention anything about it? That's correct. Can you explain why this does not appear in any of your investigative reports, and why you didn't tell Topp? Well, it didn't - I'll start with this charge, the breach of undertaking here, and then I'll get to why it wasn't explained to Mr. Topp. First of all, for the breach of undertaking, I likely probably wouldn't even have had an R2 report to go with it. I think you've had breaches before and you can agree there's usually just the arrest booking that go with them. Usually Well, let me ask it this way. Can you explain why, when after all of these reports are done and after all of the requests for will-says, Yeah. Why you never mentioned it in any of your reports? The initial report, like I was getting to Not the initial one, just when Well, that's -considering all of them. -that isn't part of my report, so I'll THE COURT: Let him answer. Okay. Sorry, sir. It's not mentioned in the first one because it didn't form any part of the charge having to do with the breach of undertaking that we originally charged Randy with. It didn't appear in any of the initial reports with this file, because it really had no bearing on anything at that point. At that point, like I said, I didn't know that - I knew this was going to trial probably July 2003. I wasn't even aware of an Internal Affairs investigation until well after that, and at that point it just didn't seem important to mention any documents. So anything up until probably meeting with Detective Topp, you can probably understand why I didn't put it in that report, because it really had no bearing on the case, or the use of force or anything. When it became a complaint is when I began to consider it, but I had not seen this document prior to making my report to Detective Topp. You're referring to the data port entry? To the data port to the taser here, which apparently says that there was eight - depressed eight times during this thing. Um, I never let Detective Topp know. I was confident enough with the fact that - first of all, I didn't know it was eight times, I thought it was six. That's first of all. I didn't think the extra one would be an issue, because like I said, I hadn't seen the data port from the taser. I would start trying account for more, and I haven't accounted for the other one. I'm not trying to say I would have accounted for it, I'm saying I haven't seen this, and still I can only account for seven not eight, by memory. It didn't seem important to me to mention that I had tasered myself, because at that point all I knew, and all you knew, and all Mr. Topp knew was that the taser was depressed six times. That's all anybody knew. It didn't seem - it didn't seem like it would have mattered for me to enter it, that, oh, by the way, I got a buzz from the taser during the arrest. Now that I've seen this, I can account Being the data port information?

Being the data port information, I can attest to seven now, and I can't attest to eight. So that's - I couldn't tell you. It really didn't make up part of much of anything having to do with this trial. Be a good time to adjourn. THE COURT: We will take a break for lunch now. I'd say Amen to that. Madam Clerk, could you show the witness, please, Exhibit 'B' for Identification? You'll recognize this, I expect, if you just flip through it, as taken from EPS policy. It looks like -you don't have to identify it for sure, but you'll recognize as being in the form of EPS policy? Yes, yes, it does. Okay. And if you look at the Introduction and Authority, this something that appears to be signed by your father, the Chief of Police? Ex-Chief. Ex-Chief. I mean at the time obviously Chief. Okay. And you're familiar with that Introduction and Authority? Not really, no, I'm not. Are you familiar with this advice given by the Chief at that time right at the last paragraph: "All members are responsible and accountable for adhering to Edmonton Police Service policy and procedure"? Uh, yes, I'm aware of that. And does this look familiar to you at all, this Introduction and Authority? No, it does not. I've never read it before. I thought all police officers were supposed to read it. You don't remember seeing it? No, I don't. .... You recognize that it was your duty to be familiar with EPS policy on the use of force? Yes, I do. ... Let's look at Page 1 of the Use of Force Policy...were you familiar with this definition as being the definition of use of force as of October of 2002? This is right under - the second paragraph under the heading General. "The Edmonton Police Service defines force as any physical control or power exerted on any resisting person." Yes, I'm familiar with that. And you were at the time you were dealing Fryingpan? Yes, I was, yeah. And you were aware, if you go to Page 3, of (i), the bottom left hand column there: Whenever a member uses force, 1) that member shall notify the immediate supervisor of all the details involved as soon as

possible thereafter. The supervisor shall immediately notify the platoon commander, who shall notify the duty officer. Details thereof shall be included in the reports normally submitted in respect of the whole matter, except where there are unusual circumstances present, in which case the report submitted shall contain only a reference to the effect that force had been used, with the details thereof being the subject of a Control Tactics Report Form to the Chief's attention. You were familiar with that policy? That one I wasn't too familiar with, but I kind of see where they're going with it. I wasn't familiar with it word by word, but ... Well, let me ask you about this on page 5, were you familiar with this policy on the right-hand side, the second full paragraph: Members are reminded that they are responsible for accurately documenting, in either their notebook or occurrence report, the events that lead up to and result from the application of force. This includes the elements of the incident that led the investigating member to reasonably believe that the application of force was necessary, and the proper use of terminology and descriptors as found in the Use of Force Model. You were familiar with that policy? Like I said, no, I hadn't actually read it, but I was aware that our reports had to outline why force was used. ... And would you agree with me that in terms of reporting on use - first of all, you agree that you had a duty to report all use of force? That's correct. And you had a duty to accurately describe it? And the reason why it was used? That's correct. And you had a duty to accurately describe all injuries resulting from it? That's correct. And as member in charge of the file, you had a duty to obtain reports from all other members who were present at the time about the use of force? That's incorrect. Incorrect? Are you asking if I need police witnesses to back up by police - my use of force? I'll show you a photocopy of some material here...and I'll ask you this: Were you familiar with the EPS policy, maybe not word by word, but familiar with the EPS policy as to the required contents of reports and notebooks at the time you were involved in this investigation? I'd have to go over it, but generally, yes. Okay. And maybe this'll help you in terms of what you're familiar with. Take you to Page 7 of Part 7, Reports and Forms...Right at the top of the left-hand column, - Police Member Witness Forms: This form will be used by all members who have any involvement with a case file and are not submitting a follow-up report. Members using the form need not summarize the case before noting their involvement. Were you familiar with that? I wasn't familiar that we had to use the Police Member Witness Form. It's been generally accepted that we can use an R2 in its place. ...

A follow-up report is an R2; right? Yeah, and technically a Police Witness is a follow-up. Okay, so what it's saying here, what you understand, was that if there was no R2 report from a member involved, then they had to at least submit a Police Member Witness Statement Form? No, that's not my understanding. We get - we - we have Witness - Police Member Statement Forms for policemen who witness something. Right. In this case, the case is a breach of undertaking, and I - I'm not on trial here, so I didn't get statements against my use of force, so I don't know what relevance this has to the breach. Okay. Do you know what I'm saying? Like all the appropriate paperwork was put in place for the breach as per policy - to support the breach charge. Now, this reporting that you've brought up here doesn't directly have anything to do with the use of force. In fact I don't really even see anything to do with use of force in this part that you've provided me. ... Let's keep looking through this package and I think you'll see a Police Member Witness Form. Okay, yeah. Okay, look at the top. You were familiar with this type of form at the time you were involved with the investigation? Yeah. It says: "This form is to be used by all members who have any involvement with the case and are not submitting a follow-up report." Okay. So you knew that they had to do this, they had to submit reports if they had any involvement with the case? If they had any involvement with the case, but I guess involvement is the question I have. I mean when I testified that myself and Constable Normand were present during that, that's my involvement. That doesn't involve anybody else. All right, what about, for example, officers who were running names of the people in the car at the scene; would you expect We don't do that. We don't get a member follow-up saying I came to an incident and I ran a name. We just don't, I apologize. Now, the form says - the form does say who have any involvement, but this is not - this is our internal document and it's interpretation can be pretty wide across the board, so Okay, well let's see how wide this would be interpreted. Let's look at Prisoners and Escorts, which is Part 9, Chapter E. Okay. Now, first of all we see on Page 1, paragraph 1(a): Members shall thoroughly acquaint themselves with the legal powers, requirements, and limitations mentioned in Part 1, Chapter C, and act in strict accordance with them when arresting and confining a citizen. And then (b): Further the following are general instructions regarding the arrest and confinement of accused persons. Are you familiar with this type of language?

Well, I'm becoming familiar with actual policy. I'm sure I have it generalized in a manner of sense, but I'd have to read through it here. Now, let's go to Page 3, Arrest Approval Responsibility. Okay. Now this refers to the Arrest Approval Report process, right? It includes that? Yes. It says here: Supervisors approving arrest must be clearly identified in pertinent documentation. They are generally responsible for determining the necessity and propriety of incarceration, and specifically for the following duties. And then we go to (3): Ascertaining the need for medical attention by: a) Viewing the prisoner closely for injuries. b) Asking the arresting member and the prisoner about visible injuries, complaints of injuries or illness, and anything observably irregular in the prisoner's demeanor or behavior. c) Arranging for medical attention if circumstances so indicate, resolving all doubts in favor of prisoner well being. d) Ensuring that young persons under the influence of liquor or drugs are medically examined prior to escort to Arrest Processing Unit. Okay. You were familiar with those policies? Yes, I was. ... And who transported Fryingpan to the Arrest Processing Unit? Constable Normand and I. So you were responsible for his well-being? That's correct. About halfway down the page it says illness/injury/medication, and what's typed in there is no medical history; correct? And that's typed in by you, right, no medical history? No, that's not. Unfortunately these Arrest Appro examined prior to escort to Arrest Processing Unit. Okay. You were familiar with those policies? Yes, I was. ... And who transported Fryingpan to the Arrest Processing Unit? Constable Normand and I. So you were responsible for his well-being? That's correct.

About halfway down the page it says illness/injury/medication, and what's typed in there is no medical history; correct? And that's typed in by you, right, no medical history? No, that's not. Unfortunately these Arrest Appro put it this way. Yeah. With injury you're supposed to note there any injuries on the accused; correct? That's correct. And you noted none, which was incorrect; right? I didn't write no medical history, is what I'm telling you. Okay, but you're supposed to write down Well, I'm telling you there's a pop-up window which doesn't appear on the page. Okay. It can't be put onto a page. Do you - do you see what I'm saying? All right, well, is there another pop-up window that says bruises, lacerations, broken bones, broken teeth? Yeah, when you click onto injury/illness/medication, inside it goes into there. Okay. Each one of these parts of this arrest booking you can go into. Unfortunately, you can't really print them off, so ... Well, let me ask you this: Are you saying that you did enter into the computer the injuries that Mr. Fryingpan had? I can't recall if I did or not, if I had, it would have been the little bruises that he had on his left cheek. Because that's the only injury that I could observe, and it's the only one he told me about. And you agree that you were obligated to enter that? Yes, I do. And the only way we can find out whether you did, is make some inquiry of the EPS as to whether it's in the computer? I'd have to check if it's - if it's, like I said, in that pop-up window thing. I'd have to ... Well, let's look above here, that line, you see - the category for teeth? And it says "crooked"? Yeah. Where would that come from? I don't know just thought his teeth were kind of crooked, I guess, that evening. So you saw his teeth. Yes, I did see his teeth.

Did you see his broken tooth? No, I did not see a broken tooth. I told you that already. I never knew of a broken tooth until it came up later in our talks. Okay, well, Mr. Fryingpan, you open your mouth, please, show your upper tooth...Do you see that broken tooth from where you are? Yeah. It's pretty obvious; right? Yes, very obvious, yeah. So are you saying that that tooth was not broken when you looked in his mouth? That's what I'm saying. I'm saying I never knew of a broken tooth. The first I heard of it was a year after the incident. Okay. Now, is this a pop-up window, "crooked", or did you type that in there, the word "crooked"? That's - it's just a blank you fill in. ... All right. Now, he was strip-searched by Normand, according to this. That could be, yeah. Well, take a look at it. Okay. And you know what a strip search is? Yes, I do. Remove all clothing? That's correct. front, back, sides; right? That's correct, yeah. Bend over, spread your buttocks, look at the anus area? Lift you scrotum? Yeah. And run you fingers through your hair? Yeah, open your mouth, move your tongue around. Look inside closely, right, for anything that might be hidden? Yes, that's correct. And show the palms of your hands? That's correct.

Show the bottoms of your feet? That's correct. Got it all? Yeah, yeah, thank you. So obviously if Fryingpan had taser marks all over his body, Normand would have to see that, right - if he did a strip search? He may have...It's hard to say exactly how quick burn marks will pop up too. I'm not a medical doctor. I couldn't tell you how long they pop up. I know that, you know, like a black eye or something too, it's likely to probably swell up and blacken more the next day than it is initially, so I can't answer that about the burn marks. I mean I know they show up later as red marks. Would it be fair to say it was Normand's duty to report to you if he observed any injuries? Yes, yes, it would, yeah...but on a side - no, not a side note, but these prisoners, not it policy, but as a matter of personal liability, are asked every time by Arrest Processing Unit people whether or not they have any injury or anything to report. They have the opportunity themselves, not only the investigating member. They stand up at the window with me, asking them the same questions that are in policy here; have you had anything to drink, do you have any injury, do you have an illness, do you need any medication, is there anything we need to know about. In this particular case, and I witnessed it, no, no, no, and no. ... Do you remember the boy who was in the driver's seat? I don't remember him. But do you remember there was a boy who was in the driver's seat? Yes, yes, I do...a teenager, yeah. All right and do you remember the girl that was in the car? There was no female in the car. No female? No, it was all males in the car, yeah. So H was not in the car? I don't know any of the names of the other witnesses. There was no female in the car. What we heard from Constable Blais, well, actually we didn't hear it from Constable Blais, but it was the subject of an admission that somebody using Blais's password on his mobile work station in the vehicle, queried a number of names by CPIC and it would have been at the scene when this was happening. Okay. And one of them was H. Okay. Are you saying that despite that, there was no girl in the car? Oh, I'm not saying there wasn't a female around there that somebody might have run, which is not uncommon, but there was

no female in the car, no...There was four males. Okay. And we know one of the to be C. That may be, yeah. One is Randy Fryingpan. That I know, yeah. And one is O? Okay. And who would the fourth be? You'd have no idea? No, I don't know. Like I said I didn't deal with the other people. I removed the driver and placed him under arrest, went back for Randy. The incident broke out. I got back in the car, I ran or Constable Normand ran - I couldn't tell you - a couple of names. I - I - you know, and I don't know what - where the girl came from. Okay, well, we understand according to the admission of fact that you or somebody using your password from the mobile work station which could be your partner or any other police officer that happened to use it in your car; right? Yeah, that's right. Somebody using your password ran Randy Fryingpan's name. Yes, could have. And no other name. Okay, yeah, that could be. And then somebody using Blais's password ran three names, one of which we understand was an alias used by a person at the scene, Could be. to avoid a warrant. Oh, okay, damn it. Okay. And another one is O, and then there's H. Okay. ... So, that's our understanding, there's four people in the car, and only four names were run, and one is H. No, there were four males in the car. That, I know. I know a difference - between - unless he was dressed like a man. Well, all right, a 12-year-old. You could Twelve-year-old? Yeah, a twelve-year-old girl. Okay.

You could have mistaken a twelve-year-old girl who was dressed in jeans or something like that for a boy; right? Not likely. Not likely? No. But possible? Well, I don't know how to answer that. I dealt with four - we dealt with four males and that's that.xii

And that's that. That certainly is that. There are two further half-days scheduled for Randy's trial in November. Constables Normand and Sparreboom will testify. The Crown and the defense will be prepare written submissions and the judge, after considering the evidence and those submissions will make his decision. And that will be that. It's not that I don't trust Judge Easton to make a good, solid decision. I do. He's been fair, thorough, dedicated to hearing all the evidence, respectful to all the witnesses. He will review everything and prepare a written decision which I believe, from what I've seen, will be a fair, strong decision. But I also believe no one will hear much about that decision. It will get one-day semi-moderate media coverage, no one will really understand the coverage and the story will sink out of sight forever. That's my theory.

Twenty-one times. That haunts me. There are twenty-one taser burns on Randy's body. Twenty-one pairs of burns. I have double and triple-checked that number, asking Marilyn if she's sure: "Twenty-one, that's a lot. Are you sure it's not ten times by two, like it would take two scars to equal one taser burn. Are there still twenty-one?" She's certain. It seems like an important fact. Twenty-one means there was definitely more than one taser and more than one Constable torturing Randy with electric shock. Twenty-one five-second shocks is a lot of voltage going into one young body. I also know this could be easily verified. The scars are still there. Anyone, preferably a doctor with some knowledge of burns, could count them officially if Randy was willing.

i ii iii iv v vi vii viii ix x xi xii

R v RLFryingpan, page 7-9 Ibid, pg. 127 -158 Ibid, pg. 107 - 126 Ibid, pg. 44 - 106 Ibid, pg. 159 - 191 Ibid, pg. 212 - 260 Ibid, pg. 300 -331 Ibid, pg. 371 - 392 Ibid, pg. 331 - 370 Ibid, pg. 394 - 411 Ibid, pg. 394 - 411 Ibid, pg. 412 - 442, 480 - 676