Sudbury

Judge finds Sault Ste. Marie Police used excessive force in 2016 arrest

A judge has dismissed charges against Tim Mitchell of Sault Ste. Marie, and says police used excessive force and failed to advise him of his right to counsel during 2016 arrest.

Tim Mitchell suffered broken rib, punctured lung after his arrest in March 2016

(Yvon Theriault/Radio-Canada)

A judge has dismissed charges against a Sault Ste. Marie man, citing that municipal police used excessive force and breached the accused's Charter right to security.

It was in March 2016 that Sault Ste Marie police responded to a call to Tim Mitchell's home.

During the court proceeding, officers testified they saw smashed beer cans on the coffee table and assumed Mitchell, then 54, had breached a recognizance to abstain from alcohol.

Constable Matthew Keating testified that he warned Mitchell he was going to be arrested and Mitchell responded angrily, stood up and started to swear at police, ordering them to leave.

Keating said he instructed Mitchell several times to put his hands behind his back or he would be hit. Keating testified he struck Mitchell in the left rib area with a closed fist. Another officer was eventually able to put handcuffs on Mitchell and he was taken to the police station.

At the time of the altercation, Mitchell was shirtless and wearing jogging pants, and there was no valid concern of a concealed weapon, said Justice John Condon.

After complaining of pain in his side, Mitchell was taken to hospital, but doctors found nothing wrong so he was returned to police.

Eventually Mitchell went back to hospital where he was diagnosed with a broken rib, and punctured lung. He was also in a coma for some time.

The force used by Constable Keating was excessive and had significant physical consequences for Mr. Mitchell.- Justice John Condon

In his decision, Justice John Condon said Mitchell, at 170 lbs, did not pose a physical threat to Keating, who weighed 265 lbs, which included his police gear.

Police are trained in techniques to avoid physical confrontation and use communication to de-escalate situations.

"The force used by Constable Keating was excessive and had significant physical consequences for Mr. Mitchell. The force was used when there were less aggressive options available to the officer," Condon wrote in his decision.

"The over-aggressive treatment of Mr. Mitchell continued at the police station, even in the presence of a supervising officer, who did not intervene," the judge continued.

Officers treated Mitchell 'abruptly and forcibly'

At the station, officers treated Mitchell "abruptly and forcibly" in the booking room and on the way to the cells, Condon said.

The judge also ruled that several officers had the opportunity to advise Mitchell of his right to a lawyer, but did not. 

As a result, any evidence against Mitchell would have to be excluded on the basis that he was denied his Charter rights, ruled Condon.

Mitchell's lawyer, Davin Charney, says the verdict makes it possible for his client to file a lawsuit, and if he chooses, to make a complaint to the Office of the Independent Police Review Board, which looks at violations of the Police Services Act.

Charney also added that the average person should care about this verdict.

"Every decision where police are found to have used excessive force does have a broader impact," he said. 

"Police officers take note of these decisions so that when they're going out in the community and dealing with the people, in the back of their mind it might be that a judge found my colleague to have used excessive force so I'm going to be more careful," Charney said.
Sault Ste. Marie Police Chief Robert Keetch says it's important the police service is transparent. (ssmps.ca)

As for Sault Ste Marie Police, Chief Bob Keetch has ordered his deputy chief to conduct an investigation and report back in 60 days.

"We're going to review the violation of Mr. Mitchell's rights under the Charter, specifically the right to counsel. We will take a look at the use of force training that is provided to the involved officers, as well as other members of the Sault Ste Marie police service," Keetch said.

He calls the situation unique given the province's Special Investigations Unit found no reasonable grounds to lay criminal charges in connection with the injuries Mitchell suffered. 

A spokesperson for the SIU says they are in no position to comment without having had an opportunity to review the court's ruling in full.

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With files from Kate Rutherford