Judge, officer clash over ‘theft’ in unusual Yellowknife case

A judge accused a police officer of theft during a trial that focused on an altercation between a Yellowknife man and a couple at a downtown apartment building.

On a February night in 2020, an intoxicated man lost the key to his apartment block and asked a couple returning to the same building if they could let him in.

The couple did not recognize Joshua David Clark as a tenant and refused. Clark was cold and upset, the court heard, but did not raise his voice.

Clark was blocking the rear door of Discovery Suites on Yellowknife’s 51 Street, across the alley from the Northern News Services printing plant. 

The couple, a man and wife, were heading inside to their apartment. The man, in his late fifties, had just picked up his wife from her work.

Clark pulled out the contents of his pockets to further look for the key. In his hand was a folded pocket knife. Fumbling around, he put the still-folded knife back in his pants. The couple were still in front of him and the man saw the pocket knife.

The man later said he had issues with people trying to gain entry to the apartment building.

“Because it’s downtown, we’ve had problems with people trying to gain entry and then sleeping on the landings,” he said.

“I rely on the other tenants to keep me safe by not allowing people in and I’m sure they expect me to do the same. I made it very clear that because I didn’t know him, I hadn’t seen him before, I wasn’t going to let him into the building.”

Clark lunged forward and the man – a former rugby player – used a “straight-armed tackle” to knock his assailant to the ground. 

RCMP were called. The dispatcher was in part told a knife had been “pulled.”

Clark was arrested without incident. The knife was found folded during a pat-down. He was charged with assault with a weapon and possession of a weapon for a dangerous purpose. He was neither extremely intoxicated nor violent, the court heard, but police were concerned for his safety if he was immediately released.

Officer keeps knife

For the eight hours Clark was in custody, he wasn’t allowed to call a lawyer, despite asking to do so. When Clark was released at 5:15am, arresting officer Cst Gordon Raeside kept his knife, even though it wasn’t needed as evidence at that time.

During Clark’s trial for assault with a weapon in Territorial Court on February 3 – the Crown stayed the other count – Raeside admitted on the stand he “made a mistake” when he subsequently threw away the Huntshield brand knife.

Judge Donovan Molloy took over questioning from the Crown prosecutor and focused on the retention of Clark’s pocket knife after his release.

“You committed the offence of theft,” Molloy told the officer, to which Raeside responded: “Yes.”

“You deprived him of his property,” said the judge. “I realize that,” said Raeside. 

”I do not know, but you seem a little nonchalant to me,” Molloy continued. Raeside protested: “I’m not trying to be nonchalant … I was not trying to be nonchalant about it, your honour, I’m just trying to provide the information.”

Clark was ultimately convicted of assault.

Molloy told Crown Prosecutor Nakita McFadden to tell the Public Prosecution Service of Canada (PPSC): “I have … 30 years or more experience. I do not know if I ever had an officer admit to a criminal offence in the cavalier manner that that officer did.

“I expect that the PPSC will report his admission of a criminal offence under oath to his superiors.”

Separately, Clark’s lawyer Roopa Mulherkar was prepared to mount a Charter challenge, asserting her client’s rights had been violated for arbitrary detention and failure to allow him to retain and instruct counsel without delay.

However, at a subsequent sentencing hearing in April, Clark received one day in custody – time served – for what the Crown admitted was an assault “on the minor end.” He also received 12 months’ supervised probation, during which he cannot contact the victim.

RCMP contest ‘characterization as crime’

Superintendent Jeffrey Christie, officer in charge of criminal operations for RCMP in the Northwest Territories, told Cabin Radio Judge Molloy’s comments “did not go unnoticed” but he disagreed with the theft allegation.

“I do not necessarily agree with the characterization of the action of the member as a crime,” Christie stated in an emailed response to questions.

“RCMP officers [take] a number of steps in the interest of safety and each case may be unique and requires careful review.

“In this instance, it appears the decision was made in error.”

Regarding the allegation that Clark was denied a phone call, RCMP spokesperson Marie York-Condon said the division “follows national policy” on placing prisoners in custody.

RCMP was aware of concern about this case and it “has been addressed,” York-Condon stated.

“We constantly review our policies and adjust as we receive feedback from the people who are lodged in the cell block, and from those who lodge them and/or care for them during their time in the cells,” she wrote. 

York-Condon said people with concerns about their treatment by RCMP should “bring these forward to their local detachment commander.”