The Crown's appeal of the verdict in a case involving the North Bay Police Service and a violent interaction with a local man in 2020 has been dismissed.
See related: Local man required surgery following violent police interaction
In an April 2 decision, Justice S.K. Stothart dismissed the Crown's appeal of the January 2023 decision by Justice A.H. Perron to release Michael Lemieux without penalty after presiding over his trial on a charge of assaulting a peace officer. Lemieux suffered a gruesome broken ankle and shoulder injuries during the 2020 incident with the police, leaving him jobless and with extra medical expenses. No police personnel were charged as a result of the incident.
According to court records obtained by BayToday, Stothart did find some legal errors in the judge's initial finding but not enough to grant the appeal:
"Acquittals are not lightly overturned. The onus on the Crown as appellant to show that the verdict would not necessarily have been the same had the errors not occurred is a 'heavy one' and the Crown must meet this onus with a reasonable degree of certainty ...
"While I have found that legal errors occurred in this case, I find that the appellant has not met the further requirement of demonstrating that the verdict would not have necessarily been the same had those errors not been made.
"When the trial judge’s reasons are read as a whole, they demonstrate that he was left in doubt with respect to whether the respondent possessed the intent required for assault. I find that the legal errors identified in this case do not impact that overall assessment or conclusion.
"For these reasons, the appeal is dismissed."
In the trial judge's decision from January 2023, Justice Perron admonished the actions of the NBPS Constable Geoffrey Whittle, who the court heard contributed to the injuries incurred by Lemieux, including the broken ankle that required surgery. Perron also questioned some of the tactics used by other members of the North Bay Police Service in the incident.
In the December 2022 trial held in the Ontario Court of Justice in North Bay, Perron made the rare move to stay the proceedings based on Charter of Rights and Freedoms violations stemming from the 2020 interaction with police, thereby freeing the accused without penalty. 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.
"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."
The main disagreements between the Perron and Stothart rulings centred on whether Lemieux intentionally closed the door of the cruiser on Cst. Whittle and the Charter violations.
Lemieux's trial was held more than two years after his encounter with NBPS, which took place late on the night of Oct. 7, 2020, and concluded with Lemieux's release from North Bay Regional Health Centre after undergoing surgery for a fractured ankle on Oct. 8, 2020.
Court documents show Cst. Whittle responded just after 11:30 p.m. on 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 5'7" and weighing 130 pounds. Lemieux testified he was headed to the nearest bus stop when Whittle 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 Perron 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.
According to Stothart's decision,
"In this case, the trial judge appeared to conclude that because the contact between the door and the officer was minimal and the officer did not suffer significant injuries the de minimise principle should be applied. In my view the trial judge erred in this regard.
"The offence of simple assault does not require proof that the victim was injured. Indeed, the offence of simple assault covers many circumstances where there is no injury at all. Further, the offence of simple assault does not require the intentional application of force be substantial.
"In this case, there were no clear findings of fact on which the trial judge applied this doctrine. If the trial judge applied the doctrine of de minimis to a finding of fact that the respondent intentionally closed the vehicle door on the officer, then this was an error. Intentionally slamming or closing a door on another person is an assault worthy of sanction."
As far as the Charter issues, Stothart explains, "Given my conclusion with respect to the conviction appeal, I find that it is not necessary nor useful for me to provide further comment on the reasons for the decision with respect to the Charter application. Any analysis that I would provide would add little to the existing
jurisprudence about the scope of police powers to investigate crime, or about detention and Section 9 [Everyone has the right not to be arbitrarily detained or imprisoned] of the Charter."
The North Bay Police Service commented on the incident and Justice Perron's decision in February 2023:
"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."
NBPS also noted, "The Ontario Special Investigations Unit investigated this incident when it occurred and, on March 8, 2021, found there existed no basis to proceed with criminal charges against the officer involved."
The mandate of the SIU is to "nurture confidence in Ontario’s police services and select special constables and peace officers by assuring the public that the actions of these officials resulting in serious injury, death, the discharge of a firearm at a person or an allegation of sexual assault are subjected to rigorous, independent investigations. Incidents which fall within this mandate must be reported to the SIU by the organization which employs the involved official and/or may be reported by any other person or organization.
"The objective of every SIU investigation is to determine whether there is evidence of criminal wrongdoing on the part of the official. It is not to determine whether the involved official(s) may have committed some lesser offence, such as a breach of a provincial law or professional misconduct."
To date, no criminal charges nor internal discipline have been brought against any of the officers involved in the Lemieux incident.
