By Ashley Legassic

Crown fails in appeal of Kamloops couple’s acquittal

Apr 12, 2019 | 10:19 AM

KAMLOOPS — A B.C. Supreme Court Judge has upheld the acquittal of a Kamloops couple who were charged with assaulting a peace officer.

The Crown appealed the trial judge’s decision, but in court today (April 12) Supreme Court Justice Dev Dley upheld the original decision, saying the trial judge did not err in coming to his conclusion.

On Feb. 18, 2017, Olive and Mark Klassen were concerned about a potential gas leak at their home. Olive attempted to call ‘911’ and Mark went to a neighbour’s home to call the gas company.

The 911 call was abandoned and Kamloops RCMP Const. Tobin arrived on scene a short time later. Dley said in his decision today that when Tobin arrived, Olive and Mark were trying to keep Tobin from entering the home in fear that the gas leak would affect him.

However, the couple didn’t know that an issue with the Domtar pulp mill had created a pungent odour throughout the city, and that’s what caused their suspicion of a gas leak when their home alarm went off.

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Tobin believed that Olive had assaulted Mark and tried to place her under arrest. As she resisted, Mark came to her defence.

The trial judge determined Tobin was overstepping his authority in trying to arrest Olive, and Dley agreed that a reasonable person in Tobin’s shoes would have concluded an assault did not take place.

Dley said of the trial judge’s full decision that he considered all evidence before him when coming to his conclusion, and didn’t err.

“It may not be perfect, whatever perfect might be, but perfection is not the standard,” Dley said.

The original decision detailed how the trial judge rejected Tobin’s evidence on the assault, and said Tobin had no basis for arresting Olive.