Andrew Robert Hardenstine appears in this 2024 photo.

Image Credit: Osoyoos RCMP

A BC Supreme Court judge has rejected the testimony of five Penticton RCMP officers, finding they used excessive force when an armed suspect was tasered 10 times.

BC Supreme Court Justice Eric Gottardi threw out much of the evidence Crown prosecutors needed to convict violent prolific offender Andrew Robert Hardenstine on weapons charges, after finding police breached his Charter Rights during his forceful arrest.

"I conclude that none of the detailed actions described by Const. Turundzev took place," Justice Gottardi said of one officer's testimony.

"This did not happen," he said about another officer's testimony.

The case is laid out in a lengthy May 12 BC Supreme Court decision following four days of testimony in a Penticton courtroom.

Hardenstine's lawyer argued his client's Charter Rights had been breached during his arrest in April 2024.

The 45-year-old has more than 60 convictions to his name and had outstanding warrants when Penticton RCMP got a tip from a person saying they'd contacted Hardenstine and were making plans to buy two firearms from him. They cost US$1,600, and Hardenstine planned to use the money to flee to the US.

Police didn't know the tipster, but later identified him as Aaron Brown, who told them Hardenstine would be at a gas station in Okanagan Falls later that night.

However, police didn't know the type of vehicle Hardenstine would be in.

At 1:30 a.m. police pulled over an old silver Chevy sedan and found Hardenstine sitting in the passenger seat.

Penticton RCMP officers — constables Ballarin, Poulton, Harrison, Turundzev and Barrett — all testified to what happened next.

The officers said Hardenstine "sprung out" of the vehicle and tried to punch an officer in the head.

"Const. Poulton, who is approximately 6’3” and 280 lb., remarkably described being lifted up like a 'baby grab' by Mr. Hardenstine," the Justice said.

As the altercation started, one officer noticed Hardenstine had a gun and Const. Turundzev saw the barrel of the rifle pointing at his chest.

"He described feeling terrified. He grabbed the barrel of the rifle and moved it away from his chest," the decision read. "He tugged three times and saw the rifle and sling come loose from Mr. Hardenstine’s body. He threw the rifle away into some grasses."

The officers laid into Hardenstine, who ended up on the ground with his hands under his chest.

"Const. Ballarin punched Mr. Hardenstine four more times in the ribs. Const. Turundzev punched Mr. Hardenstine five to eight times in the kidneys," the Justice said.

Const. Turundzev then tasered Hardenstine. He did it 10 times.

"This was all while the three other officers were continuing to strike Mr. Hardenstine in the various places where they are positioned," the Justice said.

Finally, Hardenstine released his arms and was put in handcuffs. The whole event lasted for about three minutes and an ambulance arrived 20 minutes later.

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Justice Gottardi said the officers were "extremely frank" about the amount of force they used against Hardenstine.

"Const. Poulton testified that he punched Mr. Hardenstine so hard and so many times that he sprained and dislocated several knuckles. Const. Harrison stated that he administered so many knee strikes to Mr. Hardenstine that he grew tired and needed to switch legs. This is not the testimony of officers seeking to minimize their actions," the Justice said.

However, dash cam footage from the police cruisers showed the arrest didn't play out like the officers said.

The officers had all described Hardenstine immediately jumping out of the vehicle, but the video showed the officers pointing guns at him in the car and he was pulled out.

"Const. Ballarin testified that he was 'punched in the face while standing'... this did not happen," the Justice said.

Const. Turundzev said Hardenstine attempted to punch Const. Ballarin, but the video showed otherwise.

"I conclude that none of the detailed actions described by Const. Turundzev took place," Justice Gottardi said.

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The Justice found that the 280 lb. officer who said he was put in a baby grab "did not happen."

While he accepted the officers were scared for their safety and struggled to arrest Hardenstine, the Justice said they'd exaggerated some of the details and claimed things happened that didn't.

"Can these errors be chalked up to a fast-moving and stressful event? I do not believe so," the Justice said. "At best, some of these officers’ memories were inadvertently tainted by reviewing each others’ narratives."

The Justice didn't find that the officers had colluded but said he had "significant concerns" about their reliability and credibility.

The Justice said the officers' use of force was "close to the line," but it was the taser that made it excessive.

"While I accept that Mr. Hardenstine was combative and resistive to arrest, I am not satisfied that the decision to deploy the taser on 10 separate occasions was objectively necessary," the Justice said. "The lack of any clear efforts on the part of Const. Turundzev to pause and re-assess the necessity of a further deployment in this case borders on reckless... I find the use of the taser after the initial deployment, and particularly the extent of its use, was no longer proportional to the threat Mr. Hardenstine posed, given four officers were physically on top of him and striking him."

Outside of the violent arrest, the Justice found the officers had no right to pull the vehicle over in the first place.

"At its most basic, the police got a tip of unknown reliability and pulled over the Chevy on a hunch that this might be the car that they were looking for. The fortunate fact that their hunch proved correct does not render it lawful," the Justice said.

Hardenstine was found to have numerous Charter Rights breached as he was unlawfully detained and arrested, and his car was searched without a warrant.

Ultimately, the Justice Gottardi barred the Crown the using the weapons found on him for their case.

Whether the case will continue remains to be seen.

BC Prosecution Service spokesperson Damienne Darby said the Crown was reviewing the file in light of the court's ruling.

A trial is still scheduled for May 26.

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