The B.C. Court of Appeal has restored the sentence of a Campbell River man convicted of firearms offences, saying his Charter rights were not violated by the use of a police dog to arrest him.
Preston Hale Jaramillo was sentenced in December to three years and one month for two counts of possession of a loaded handgun and one count of possessing a firearm in contravention of a firearms ban.
Provincial court judge Dwight Stewart reduced Jaramillo’s sentence from four years because he found the use of the police dog, without a prior risk assessment, violated Jaramillo’s right to life, liberty and security of the person.
The decision was hailed as a victory by those who have advocated for greater oversight around the use of dogs in policing.
But a panel of three judges at the B.C. Court of Appeal last week ruled Jaramillo’s Charter rights were not violated and restored his sentence to four years. With 25 months’ credit for time served, he will serve an additional 23 months, followed by two years’ probation.
Even though the police dog did not bite or touch Jaramillo, Stewart had called it a “logical fallacy” to conclude the use of the police dog was well reasoned. “A careful review of this record reveals a degree of institutional nonchalance concerning the use of a police service dog in effecting an arrest,” the judge said.
There was an opportunity to make a considered decision about whether to use the dog, but that did not occur. The record instead shows a “presumptive use” of the dog whenever its handler responds to a call, he said.
The B.C. Court of Appeal decision disagreed with Stewart’s analysis, saying there was no legal basis to require an advance risk assessment and that he did not make a finding that excessive force was used.
At issue was not physical harm, but psychological harm, said Justice Christopher Grauer, writing for the panel of B.C. Court of Appeal judges.
Jaramillo described a chaotic arrest, with officers’ commands drowned out by the dog’s barking while it pulled on its leash until it was standing on its hind legs. He said he was unable to hear the commands, leading him to hesitate before going to his stomach from his knees, which an officer perceived as a threat.
Jaramillo testified he was familiar with the officer handling the dog and was aware he was involved in the shooting death of Jared Lowndes by police in Campbell River in 2021, and that the dog had bitten a friend of his in a “vicious” incident.
“I didn’t want that happening to me, so yeah, I’m very scared of that,” he said, according to the decision.
Grauer, however, said the presence of the dog encouraged Jaramillo’s compliance, thereby reducing the risk of harm.
He concluded Stewart erred in his analysis of the law in determining there had been a Charter breach.
“What the judge failed to do is consider the totality of these circumstances in assessing whether a reasonable person standing in [the officer’s] shoes would consider it reasonable to bring the dog to the arrest,” he said.
Criminal defence lawyer Sarah Runyon, who represented Jaramillo, said the decision highlights the challenge of holding police accountable through the criminal justice system.
Runyon said she pursued the argument that the use of the dog amounted to a Charter breach because it didn’t seem logical to have to wait until someone suffers a serious injury to consider the risk posed by police dogs.
“What’s really disappointing about the appellate-level decision is that it tends to suggest that you just have to wait until there is grievous bodily harm … before assessing whether this amounts to misconduct,” she said.
Runyon said she does not believe police dogs should be used to make an arrest. They can be useful for other activities, such as tracking, she said.
Dogs are considered police tools, but officers have less control over the animals than they do over weapons, such as a Taser or baton, which are subject to more stringent guidelines, she said. “That just doesn’t seem to make any sense, given the harm that we know can flow from the use of those dogs to effect an arrest.”
Multiple incidents in Campbell River involving police dogs have resulted in injury or death.
In July 2021, Lowndes was fatally shot by police after an officer lifted a dog into Lowndes’s vehicle, according to a case overview by the B.C. Prosecution Service. Lowndes stabbed the dog, which died of its injuries.
The prosecution service declined to approve charges against officers, despite a recommendation from the province’s police watchdog, saying it couldn’t prove beyond a reasonable doubt that any officer committed an offence.
Runyon also represented Shane Roberts, who was bitten during an arrest in 2016 after driving away during a traffic stop. As a result of the dog bite, he spent several months in the intensive care unit, almost losing his leg.
A Campbell River woman had her arm bitten in 2010 by a police dog that wouldn’t let go. She received a settlement from the RCMP for what she said was a random attack.
The province brought in standards for the use of police dogs in 2014, saying police would no longer be able to deploy dogs to bite people suspected of relatively minor crimes. The standards followed a 2014 report by Pivot Legal Society that found dogs are the leading cause of injury by police forces across B.C.
Meghan McDermott, policy director at the B.C. Civil Liberties Association, previously told the Times Colonist the association rejects the use of police dogs as weapons.
“It is extremely difficult to mitigate or regulate the scope of harm that dogs are capable of — including grievous bodily harm and even death — and B.C. policing standards [are] not strong enough to protect the public from such harm. The only role of dogs in public safety should be as cadaver dogs or for search-and-rescue missions,” she said.
