Judge throws out evidence in Tim Mitchell case

A city police constable's use of excessive force while arresting Timothy Mitchell and the failure of numerous officers to inform him of his right to call a lawyer resulted in a judge finding the Sault Ste. Marie man not guilty of two charges Tuesday.

Ontario Court Justice John Condon ruled that the actions of the Sault Ste. Marie Police Service officers on March 26, 2016 breached Mitchell's rights under two sections of the Canadian Charter of Rights and Freedoms.

The 56-year-old man's right to security of person and right to retain and instruct counsel were violated, he said, when he dismissed the charges, after excluding evidence arising out of the breaches from the trial.

Mitchell pleaded not guilty to resisting Const. Matthew Keating and failing to comply with a recognizance condition that he not consume alcohol.

"The admission of evidence obtained following the excessive use of force by police would have a negative impact upon the justice system," Condon said in a 48-page written decision.

"I find that admitting this evidence would serve to undermine the public confidence in the justice system and its requirement that police adhere to the maintenance of Charter rights."

The court heard officers were dispatched to Mitchell's Weldon Avenue home at 9:50 p.m. after a call from his teenaged son, indicating that his father was intoxicated, was smashing things in the house and had threatened him.

Keating struggled with Mitchell on a couch as he attempted to arrest him, and struck him with a single blow — a closed fist to the man's left upper abdomen — within 15 seconds of them landing on the sofa.

"The force applied was strong enough to break Mr. Mitchell's ribs," Condon noted.

The judge said that the brevity of the time between when Mitchell and Keating landed on the couch, the fact that that Keating didn't ask other officers for assistance, the force used in the strike and the use of a closed fist as opposed to a softer technique, are cumulatively an excessive use of force.

"The force used was beyond what was necessary in the circumstances."

Keating testified that when he entered the home, he noticed a hockey stick on the floor, broken balusters on a railing, broken glass in the kitchen and blood on the stairs and hallway floor.

Mitchell, wearing pants and no shirt, had his arms raised and was draped on a couch.

The officer, then a five-year member of the department's Emergency Service Unit, estimated there were five crushed beer cans on the coffee table and he observed blood on one of Mitchell's hands.

Keating said he approached the man and informed him that he was under arrest for breaching his release condition prohibiting him from drinking alcohol.

He described the accused's response as "angry, vulgar and belligerent," as he told officers to get out of his house.

Keating said he ordered Mitchell to stand up, and the man began berating and swearing at them, as he complied with the command.

He told Condon he grabbed the accused's left wrist, and Mitchell reached for him, so he pushed Mitchell's shoulder causing him to fall on a second couch.

Mitchell landed on his right side with his right arm underneath him, while the officer was still holding on to his left wrist and positioned himself over the man.

The accused was instructed several times to put his hand behind his back, but Mitchell struggled, squirmed and didn't do what he was told, the officer said.

Keating, who indicated he was concerned about what might be in the couch, commanded him five to seven times to put his hands behind his back, but Mitchell continued to resist and tried to pull his hand away.

He then told Mitchell two or three times to put his hand behind his back or else he would be hit.

When Mitchell didn't comply, Keating said he punched him in the upper abdomen and the accused was handcuffed, and taken to the police station.

When he testified, Mitchell rejected the assertion that he was struck only once and that he was hit with a fist.

He insisted that he was kneed in the side at least three times.

Condon expressed concern about the reliability of Mitchell's evidence given his consumption of alcohol and his level of consciousness or lack of consciousness during the events.

A police officer who went to the home earlier that evening noted Mitchell was intoxicated, his son had reported that he had been drinking and video from the police station indicated his speech was slurred, his moods changed quickly and he swayed as he walked.

"The totality of this evidence shows that Mr. Mitchell was under the influence of alcohol. It compromised his ability to perceive and recall."

Condon rejected Mitchell's evidence that Keating kneed him repeatedly.

"Despite Mr. Mitchell's efforts to recount what had happened to him, I found this evidence to be unreliable," he said. "It is weakened by the influence of the alcohol upon him, his periodic lack of consciousness and his inability to see how he was being struck."

In his decision, the judge noted Keating's excessive use of force significantly compromised Mitchell's health and well-being.

He suffered broken ribs and then a punctured lung. He underwent surgery and also spent an amount of time in hospital, weeks of which he was in a coma.

Condon said the difficulty in assessing the overall impact on Mitchell lies in considering the medical treatment he received in the early morning hours of March 27, when police took him to Sault Area Hospital.

His fractured ribs were not diagnosed at this time.

While there is some medical evidence about his physical condition after the first hospital visit, it doesn't assist the court in determining whether Mitchell's lengthy hospitalization and precarious health condition would have occurred if the injured ribs had been detected then, the judge said.

"Thus, the seriousness of his medical condition cannot be assigned solely to the strike from Constable Keating."

Condon said the entire "chain of events" between the police and the accused should be considered.

Following the excessive use of force by the officer, further unnecessary force was applied to Mitchell at the station.

Keating moved him abruptly and forcibly from a bench in the booking area, then down a corridor to the cell area, where he was pushed from behind once he was in the cell.

"In addition to these various applications of gratuitous force," Keating directed comments at him, suggesting that he was prepared to again apply physical force and called him an "old man," a reference the judge called demeaning.

Condon said Mitchell's "substandard treatment" also occurred in relation to his right to counsel — a Charter right that the Crown conceded had been breached.

Despite numerous opportunities to inform Mitchell about his right to speak to a lawyer, multiple officers failed to do so.

"Given the cumulative and serious breaches" by numerous officers, the justice system must indicate that it doesn't condone this type of conduct, Condon said.

"The appropriate remedy is to exclude all the evidence, beginning when the officers were directed by Mr. Mitchell to leave his home."

In November 2016, the province's Special Investigations Unit, which investigated the incident, determined there was no reasonable grounds to lay criminal charges against Keating in connection with Mitchell's injuries.

Director Tony Loparco said the evidence didn't provide him with reasonable grounds to believe excessive force was used in the circumstances.

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