He shot himself while allegedly stealing a puppy. Now he won't face trial after a cop slapped him in hospital
A man who accidentally shot himself in the leg during an alleged armed puppy robbery has had his charges stayed after a judge found a Peel police officer held him down while he was in hospital and slapped him repeatedly across the face.
In a decision made public this month, Ontario Superior Court Justice Thomas Bielby wrote that at the time of the assault in December 2019, the man was lying in a hospital bed and handcuffed by one wrist, while suffering from a gunshot wound and a broken leg, as well as on medication and awaiting surgery.
"The applicant was vulnerable and not physically able to defend himself," the judge wrote in his decision. "The officer took advantage of the applicant's situation.
"There was no justification for what occurred."
CBC News is not identifying the man because his charges have been stayed. It is also not identifying the officers involved as they remain under investigation by Peel police's professional standards unit.
The man, who was 20 years old when he was arrested on Dec. 20 of that year, landed in hospital after what was supposed to be an online Kijiji sale of a nine-week-old American Bulldog named Tarzan. The puppy's owner met with the man outside a Brampton home, when the man allegedly stole the animal at gunpoint. Shortly after, the man accidentally shot himself in the leg — though he initially told police he'd hurt his leg in a fall.
He was subsequently charged with robbery and firearm offences. The puppy was returned to the victim, who did not suffer any physical injuries, Peel police told CBC Toronto Wednesday night.
Provocation no excuse, judge rules
Two officers were stationed outside the man's hospital room on the night of his arrest and were relieved by two others in the morning. The man testified that when he awoke that morning, he asked if he could contact a lawyer.
According to his testimony, one of the officers replied, "suck a dick." The officer, in his testimony, denied that allegation.
From there, the man testified that he and that same officer began exchanging insults. He admitted he insulted the officer's physical appearance and told him he would be in a lot of trouble for not arranging for him to contact a lawyer.
The judge acknowledge the police officer was "provoked" by the man's insults, but wrote that should be no excuse for assaulting him.
"I would expect an experienced police officer to act professionally and should be able to ignore any such provocation," Bielby wrote.
After the exchange, the two officers came into the man's room and closed the door, he testified. One stayed by the door, while the other approached the bed and held down the man's one uncuffed wrist, calling him "a pussy" and "backhanded" him across the face three times. The officers then returned to their chairs outside the room.
Officers discussed case over lunch, suggesting 'collusion': judge
The man then pushed the emergency button on his bed, prompting a code blue alarm, after which he claimed the officer who slapped him called him a "snitch."
The officer later testified he had very little memory of the incident.
It wasn't until after his surgery around 2 p.m. and after he repeatedly asked for a lawyer, the man testified, that another officer arrived with a cellphone that was used to call his lawyer.
The next day, that officer took a statement from the man. According to the decision, the officer asked if the man told his lawyer about the assault, suggesting he might not want to follow his lawyer's advice — something the judge deemed a breach of solicitor-client privilege.
The reality is, had the police just refrained from assaulting him, he would have stood trial on this. - Andrea VanderHeyden, lawyer
The officer suggested the man register a complaint with the Office of the Independent Police Review Director, but took no other steps to investigate the assault allegation, the judge found.
In his decision, Justice Bielby wrote that he accepted the man's evidence over that of the two officers, noting it was largely consistent throughout. The officers, meanwhile, claimed during cross-examination to have no recollection of many of the specifics, providing at times ambiguous answers or replying, "I can't speak to that."
Through cross-examination, it was found the two officers involved in the assault came to the courthouse together, had lunch and discussed the case prior to testifying, with one admitting he told the other he had no idea why he was called to court and needed him to trigger his memory.
The judge called that admission "troubling," adding, "it suggests collusion.
"The fact that the applicant has been convicted of a criminal offence in the past does not change my acceptance of his evidence," Bielby wrote.
Police's professional standards unit investigating
In a statement to CBC News, Peel Regional Police spokesperson Jennifer Trimble said the force has "an established process" with the Crown's office when it comes to serious allegations of misconduct.
"In this instance, the Crown notified our office of the judicial findings and we immediately commenced an investigation into the allegations. The investigation is led by our Professional Standards Unit and that investigation is ongoing," she said.
As for the man who was slapped, his lawyer Andrea VanderHeyden told CBC News that he spent one year in custody awaiting trial for the charges. In December 2020, she was able to secure his release on bail, and in the time since he's been on strict house arrest with no reported breach of his conditions.
Since then, she says, he's pursued online schooling and found work. It's unclear if he'll pursue legal action against the officers, but for the moment is relieved at the outcome. VanderHeyden added there is no indication Peel police will appeal the decision, adding the 30-day window to file for one has now passed.
A few weeks ago, she added, a Peel police officer showed up at the man's home, demanding fingerprints, saying they'd arrest him if he didn't comply. VanderHeyden said police later told her that was a miscommunication.
At a time when many officials and police forces, including Peel police's own chief, have called for a tightening of Canada's bail system to keep violent offenders from putting public safety at risk, VanderHeyden notes this case stands out.
"There were definitely triable issues," she told CBC News. "The reality is, had the police just refrained from assaulting him, he would have stood trial on this.
"All they had to do was show a little bit of self control."