Civilian complaints body biased in Tim Mitchell case, police officer's lawyer argues

Misconduct charges against city police constable Matthew Keating stemming from a March 2016 incident where a local man was seriously injured should be dismissed, his lawyer argued Wednesday.

The 11-year officer faces three allegations -- unlawful or unnecessary exercise of authority, discreditable conduct and neglect of duty -- under the Police Services Act.

Defence lawyer Mary Pascuzzi called for a stay of proceedings.

She maintained that there has been an abuse of process, delays, and that the Office of the Independent Police Review Director (OIPRD) was biased in its investigation.

Hearing officer Terence Kelly set aside two days to deal with the defence application at a hearing at the Sault Ste. Marie Police Service building.

The charges are the result of a complaint Timothy Mitchell made to the OIPRD -- an independent civilian oversight agency that handles public complaints of police conduct in the province.

Mitchell was injured on March 26, 2016 when police officers responded to a call at his Weldon Avenue home.

Keating, a member of the Emergency Services Unit, struck him once with a closed fist during a struggle as he attempted to arrest Mitchell.

The man's ribs were broken, and he later suffered a punctured lung, underwent surgery and spent weeks in a coma.

In her argument Wednesday, Pascuzzi noted parallel probes were conducted by the Special Investigation Unit and the city police.

The SIU cleared Keating of any wrongdoing and the police service found there were no breaches of policies or conduct, she said.

After a judge dismissed criminal charges against Mitchell in February 2018, the SIU took a second look but didn't re-open its investigation.

Ontario Court Justice John Condon ruled Keating had used excessive force during the arrest, and numerous officers failed to inform Mitchell of his right to call a lawyer.

The police force's senior command, "bothered" by the negative media reports, decided to re-investigate the matter, Pascuzzi said, suggesting the judge's "decision is the catalyst."

On April 6, 2018, Mitchell filed a complaint with the OIPRD.

The defence argued that Mitchell hadn't lodged a complaint until six months after his trial was completed.

She referred to an affidavit from Mitchell where he indicated he had considered making the report earlier, but thought it might have a negative effect and could have interfered with his right to a fair trial.

There is no valid reason for the two-year delay, Pascuzzi said.

The multiple proceedings against Keating were unfair, prejudicial, and the whole process abusive, the lawyer said.

Various investigations into the matter were "inappropriate and certainly redundant and prolonged the matter."

The delay in the filing of Mitchell's complaint "adds to that abuse."

"The constellation of factors add up so that the charges should be stayed," Pascuzzi maintained.

"How many processes must a person undergo? When is it over?" she said. "Two years later we are back in the same spot where we started."

Is an employee not able to rely on the decision of an employer when no action is taken?

Negative media attention isn't the appropriate reason for this officer to be subjected to this hearing and the three charges he is facing, Pascuzzi said.

In an affidavit provided to the hearing officer, Keating said his career has been stalled by the repeated processes.

As well, he and his family have been affected by "misleading and inflammatory" media reports. 

Photos of Mitchell's bloated face inferred that "I caused the injuries," Keating said. "He didn't look like that when I arrested him."

A doctor had indicated that the facial bruising was from a medical procedure, not from his injuries, he said.

The material Pascuzzi provided the hearing officer, included a photo of Mitchell taken the night of the arrest in the police service's booking-in room.