Despite errors, court upholds acquittal of North Bay man charged with assaulting police

North Bay police are seen in this undated photo. (File/CTV Northern Ontario)

Despite finding errors in the trial judge’s conclusions, an Ontario appeals court has upheld the acquittal of a North Bay man who was charged with assaulting a police officer.

The trial judge concluded that some of his Charter rights had been violated and took the unusual step of staying the charges after finding him not guilty.

The incident took place Oct. 7, 2020, on Clarence Street in the city. According to the Superior Court decision, North Bay police received a call at 11:35 p.m. from a terrified woman.

“(The) female who was screaming that there was a ‘psycho’ outside her apartment,” the court decision said.

“The information received was conflicting, with the caller saying she had either let this person into her residence, or the male was climbing in through a window. The police were not able to get a full description of the perpetrator other than the fact that it was a male.”

Police responded, with an arriving police officer noticing a man walking along Clarence Street wearing dark clothing and carrying a backpack.

The officer testified at trial that he pulled up beside the man, rolled down the window and asked him where he was coming from.

“Why the f--k do you care?” was the response.

When the officer said he was looking for a suspect, the man replied that “he didn’t have to say shit to him,” the decision said.

“The respondent was belligerent and told the officer to ‘f--k off’ and began to walk away.”

At that point, the police officer said he directed the man to stop and began getting out of his vehicle.

Slammed door on officer's arm

“The respondent quickly took several steps towards him, with his arms extended, and slammed the vehicle door on the officer’s left arm,” the decision said.

At that point, the police officer said the man told him “something to the effect of ‘stay in the f--king car.’”

The officer then got out of the vehicle, grabbed the man by the collar and said, “What do you think you’re doing slamming a door on me?”

They began to struggle before the officer flipped the man over and onto the ground. Another officer arrived and they handcuffed the man, before realizing he had broken his ankle.

In his testimony, the man said he was walking along the street when someone suddenly shouted, “where are you going?” The man said he kept walking, by this time noticing it was police.

When the officer asked him his name, the man sarcastically replied, “What’s your name?” and kept walking.

“The officer tried to engage him again and the respondent told him that he did not want to talk to him and to leave him alone. The respondent kept walking.”

At that point, he said the officer pulled up over the curb and onto the grass, with the side mirror of the vehicle almost hitting him.

“The officer went to open the door of the police vehicle and the respondent immediately put his hands out and closed the door,” the man testified.

“The respondent testified that the door wasn’t open even two inches and the car door did not hit the officer’s legs or body. The respondent testified that he was getting scared and wanted to stop things before they proceeded any further.”

Smashed his face into the ground

At that point, he said the officer got out of the police car and flipped him to the ground.

“The respondent testified that the police continued to beat him while he was on the ground, smashing his face repeatedly into the ground,” the court decision said.

“The respondent testified that he had other injuries as a result of the beating and photographs were entered as exhibits at trial depicting injuries to the respondent’s face.”

To win the appeal, the Crown would have to prove not only that the trial judge made errors in law, but that the verdict would have been different “had the error not been made.”

“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 the court ruled the judge did make errors and “misapprehended the evidence” in some areas, the central reason for the acquittal was that the judge was not convinced the man had formed the intent to commit an assault when he tried to shut the door of the police cruiser.

“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,” the decision said.

“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.”

The appeals court declined to rule whether the man’s Charter rights were violated because the judge stayed the proceedings.

“I would note that the trial judge purported to stay the proceedings after acquitting the accused,” the decision said.

“Technically, there were no proceedings to stay at that point, so his Charter decision is a nullity.”

Read the full decision here.