The judge presiding over a recent trial held in the Ontario Court of Justice in North Bay made the rare move to stay the proceedings based on Charter of Rights and Freedoms violations stemming from an interaction with police, thereby freeing the accused without penalty.
In his January decision, Justice A.H. Perron also admonished the actions of the police constable who seriously injured Michael Lemieux and questioned some of the tactics used by members of the North Bay Police Service in relation to the incident.
If it is determined the rights of the accused under the Charter were breached, the trial judge can "stay" the charge or might refuse to allow evidence obtained as a result of the breach of Charter rights to be admitted at trial.
Perron elaborated on his decision to stay the charge of assaulting a peace officer based on his analysis of the three-day trial held in December 2022.
"Considering the number of Charter violations, and the serious injuries suffered by Mr. Lemieux. I conclude that this is one of those exceptional cases. The police behaviour in this matter cannot be condoned. The prejudice exposed in this matter is not only a prejudice to Mr. Lemieux but also a prejudice to the integrity of the justice system," says the decision.
Besides the lingering effects of the ankle and shoulder injuries suffered during the incident, Lemieux also incurred medical expenses and testified he had lost his job in the wake of his 2020 detention. Lemieux is exploring civil litigation options against North Bay police under the guidance of his legal counsel, Perrin Ahmad LLP.
Perron continued: "I conclude that in all circumstances the just and appropriate remedy under section 24(1) of the Charter is a stay of proceedings in order to disassociate the justice system from this police conduct. I will therefore grant an order staying the prosecution of all charges against Mr. Michael
Lemieux...you are free to go."
Lemieux's trial was held more than two years after his encounter with North Bay police, which took place late on the night of Oct. 7, 2020, and concluded with his release from North Bay Regional Health Centre after undergoing surgery for a fractured ankle on Oct. 8, 2020.
Court documents show Const. Geoffrey Whittle responded just after 11:30 p.m., Oct. 7, 2020, to the area of Clarence and Jane streets in North Bay to investigate a 911 call later determined to have been placed by a woman who was under the influence and had lodged a vague complaint about an unwanted visitor in and around her apartment building on Clarence.
Whittle spotted Lemieux walking on the sidewalk on Clarence, blocks from where the 911 call had originated. At the time of the incident, as described in the court documents, Lemieux was a 56-year-old Indigenous male standing five-foot-seven and weighing 130 pounds.
Lemieux testified he was headed to the nearest bus stop when the officer pulled alongside him.
As it was later ascertained, it was, in fact, Lemieux who was the subject of the Clarence Street woman's 911 call. However, Whittle did not have a description of a suspect or a person of interest relating to the Clarence Street apartment 911 call. Whittle attempted to engage Lemieux in conversation by asking him where he was coming from. Lemieux dismissed Whittle's requests and continued to walk away from the cruiser that the officer had pulled across the oncoming lane.
According to the the judge's decision, "it was clear that the police were not going to let him leave without him answering those questions to which he had no legal obligation to respond."
What happened next only Lemieux and Whittle know for sure. Whittle claimed when he attempted to exit the cruiser, Lemieux forcefully closed the door on his body — the officer's grounds for the assault of a peace officer charge. Lemieux claimed Whittle had pulled up so close to him that it was a reflex move in bracing for the cruiser door to open against him.
'Flipping him to the ground'
"Once Const. Whittle told him to stop any reasonable person would have concluded that they were not free to go and at that point, Mr. Lemieux was detained," Perron stated. "This psychological detention was very short as Const. Whittle exited his motor vehicle within seconds and physically detained him by flipping him to the ground and then pinning him there until the arrival of backup. In my view, the police had no right to order Mr. Lemieux to stop or detain him."
Whittle testified he got out of the vehicle and apprehended Lemieux by grabbing his backpack and throwing him over his hip. The defence maintained Lemieux was attacked from behind and Whittle either kicked at Lemieux's legs from behind or fell on the backs of them with all of his body weight.
"The officer did not know the age, race, size, how he was dressed and what direction he was heading," Perron said of the potential suspect. "All the officer had was it was a male. The evidence also shows that the last radio communication before the officer exited the motor vehicle was that the female was recanting her story and was not making much sense as she was under the influence of alcohol. Therefore there were no grounds for detention because of the 911 call."
Either way, the ankle was badly damaged, as Sgt. Jason Long would later testify. It was Long who directed Whittle and Const. Ryan Schreyer, who had arrived on the scene to assist Whittle, to get off Lemieux and remove the handcuffs the two junior officers had teamed up to place on him.
In Whittle's notes, introduced as evidence, he wrote: "The male started yelling that his ankle was hurting. The first time he yelled I didn't look. The second time he yelled I looked and observed that his foot looked like it was in a strange position."
"Mr. Lemieux properly exercised his Charter rights by not providing his name to police or advising where he was coming from," reads Perron's decision. "This
led to a confrontation or a takedown with excessive, unnecessary force or violence. After this Mr. Lemieux was subjected to numerous blows to the head by the police, smashing his head to the ground while he was on his back and complaining of a severely broken ankle.
"He was not advised as to why he was detained or arrested, provided his rights to counsel or allowed to exercise that right to counsel until much later," the judge added.
Perron stated he could not "reject" Lemieux’s explanation concerning the door incident, and he "suspect(ed) the police versions of these events are possibly exaggerated in order to justify the extreme use of force to ground Mr. Lemieux in order to detain and arrest him. In all circumstances, I am therefore satisfied that Mr. Lemieux’s Section 9 rights were also violated."
In its arguments, the defence argued Lemieux was subjected to a "deprivation of his liberty and security of the person. The force used was disproportionate and not reasonably necessary in the circumstances. It was unnecessary to step on/kick Mr. Lemieux’s ankle while Mr. Lemieux was walking away. It was unnecessary to throw Mr. Lemieux to the ground. It was unnecessary to pull on Mr. Lemieux’s arm while he was on the ground. It was unnecessary to slam Mr. Lemieux’s head/face against the ground multiple times."
Perron noted "the evidence of Const. Schreyer is that he drove by Const. Whittle and observed him still in his cruiser speaking to a male individual on the sidewalk.
By the time he drove 30 to 50 metres away from that location he saw in his rear-view mirror that Const. Whittle was struggling with a male on the sidewalk. Clearly, the whole interaction took only a few seconds.
"Why was there a need to move so quickly in dealing with Mr. Lemieux? Why did the officer use such a high degree of force without attempting other types of measures in detaining Mr. Lemieux? In my view, there was no need to act so quickly and so violently in these circumstances," the judge said.
"Mr. Lemieux’s evidence was that after he was grounded and laying on his stomach his head was repeatedly smashed on the ground while he was complaining of both his leg and shoulder hurting. In my view, there was no justification on the repeated blows to Mr. Lemieux’s head when the police clearly had him well under control," Perron added.
Defence maintained the fractured ankle was the result of "excessive force used by officer Whittle. The force used was not necessary, reasonable, or proportionate. The force was excessive and unlawful, and therefore violated Section 7 of the Charter.
"Mr. Lemieux was not acting in a hostile manner towards officer Whittle. Mr. Lemieux was walking away. Officer Whittle is bigger and heavier than Mr. Lemieux. Officer Whittle was not at risk of any harm. Officer Whittle was not aware of any history that might represent a threat to him. Officer Whittle had no reason to suspect that Mr. Lemieux had a weapon," the judge said.
There was mention of a weapon, specifically, a gun thought to possibly be in Lemieux's possession, according to court transcripts, in a conversation by cellphone between Staff Sgt. Mike Hunter from police headquarters and Long at the hospital following prisoner transport.
Justice Perron stated: "We must also remember that the 911 call was played in court. The dispatcher clearly asked the female caller if there was a weapon, to which she answered 'no'. So, how and where did the staff sergeant get the information about the firearm? There are many unanswered questions on a very serious allegation which simply do not add up."
No criminal charges
No criminal charges or internal discipline have been brought against any of the officers involved in the Lemieux incident.
From Perron's decision: "There are only two witnesses that testified and who were present during the alleged assault. Under those circumstances, as I am unable to reject Mr. Lemieux’s evidence, and as directed by the Supreme Court of Canada I must therefore accept his version of events. Mr. Lemieux’s own
evidence is that he pushed the door and same came in contact with Const. Whittle. Using the strict interpretation of an assault this is clearly Mr. Lemieux intentionally applying force that Const. Whittle did not consent to, however ... accepting Mr. Lemieux’s version of events and any contact by the door was minimal.
"Accordingly, I am not satisfied beyond a reasonable doubt that the Crown has proven each and every element of the offence and there will be a finding of not guilty on the charge."
Perron also concluded that, due to oversights by the police involved in the Lemieux arrest, there were also breaches to Sections 10(a), which is to be informed promptly of the reasons for arrest and detention, 10(b), which is to retain and instruct counsel without delay and to be informed of that right, and 9, which is the right not to be arbitrarily detained or imprisoned.
"Obviously, the Section 7 breach is the most serious as Mr. Lemieux suffered a serious injury that required surgery and a stay in the hospital. The combination of all these Charter breaches in my view rises the prejudice to the level of an egregious act of misconduct," Perron said.
The North Bay Police Service responded to BayToday's request for comment on the incident and Justice Perron's decision with: "NBPS was not informed of the justice’s decision in this case. As such, we have not had a chance to review the decision and cannot comment on it until we have been able to do so.
"There is no formal reporting process between the courts and the police service regarding court decisions, withdrawn charges, acquittals, or plea deals. Similarly, there is no formal reporting process that would relay allegations of officer misconduct made in a Justice’s decision to the Office of the Chief of Police. To the best of our knowledge, this is the same for all police services across the province.
"The North Bay Police Service takes all allegations of Charter Rights violations seriously and, once we have been able to review the justice’s decision, we will make an appropriate decision regarding next steps."
North Bay police also noted the province's Special Investigations Unit (SIU) investigated the incident when it occurred and, on March 8, 2021, "found there existed no basis to proceed with criminal charges against the officer involved."
According to its report, the SIU investigator was "unable to reasonably conclude that the takedown of the complainant by the SO (subject officer/Whittle) was excessive. The complainant had just assaulted the SO by closing the driver’s door on him and was actively resisting arrest by tugging at the officer’s collar. In the circumstances, the SO was entitled to use force to subdue the complainant and the takedown accomplished just that. With the complainant on the ground and at a positional disadvantage, the SO would be able to better manage any additional resistance.
"In the result, though it appears that the complainant’s right ankle was broken in the course of his interaction with the SO, whether the result of the takedown and/or the struggle that preceded it, I am satisfied on reasonable grounds that the officer conducted himself lawfully throughout their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed."
