Public confidence in policing would be fundamentally undermined if charges against Const. Matthew Keating are stayed, Toronto lawyer Davin Charney said.
"These allegations are at the more serious end of the spectrum," he told hearing officer Terence Kelly, because the injuries suffered by Mitchell were life-threatening.
His client spent months in hospital, was in a coma and nearly died, he said.
The allegations deal with use of force, not administrative misconduct, as well as demeaning conduct, such as calling Mitchell "old man," Charney said
Keating is charged with three counts under the Police Services Act (PSA) — unlawful or unnecessary use of force, discreditable conduct and neglect of duty.
The charges stem from a March 26, 2016 incident where Keating, a member of the police department's Emergency Services Unit, injured Mitchell when he was arresting the middle-aged man.
On Wednesday, the 11-year officer's lawyer Mary Pascuzzi called for a stay citing delay, prejudice, bias and multiple proceedings issues.
The defence also argued that Mitchell waited too long to file a complaint with the Office of the Independent Police Review Director.
Charney said the act's six-month limitation contemplates that people might want to wait until after court proceedings to lodge a complaint.
Mitchell indicated in an affidavit provided to the tribunal that he was concerned about fairness at his trial and feared a complaint could create bias against him by the officers.
To fault Mitchell or to say the delay is unreasonable would undermine the right to silence people facing charges have under the Charter of Rights and Freedoms, his lawyer said.
"In order to initiate a complaint a person must make a signed statement and if facing charges it could be used against them in criminal proceedings."
In February 2018, a judge found Mitchell not guilty of resisting police and breach of a recognizance in connection with the incident.
Ontario Court Justice John Condon ruled that Keating's use of excessive force while arresting Mitchell and the failure of officers to inform of his right to call a lawyer violated his Charter rights.
The Special Investigations Unit, a civilian oversight agency that probes incidents involving police that have resulted in death, serious injury or alleged sexual, had earlier cleared Keating of any wrong doing.
A parallel investigation by the Sault Ste. Marie Police Service found there were no breaches of conduct or policies.
One of issues raised by Pascuzzi on Wednesday was the multiple proceedings Keating had faced.
Charney suggested that "what we're dealing with here are multiple investigations rather than multiple proceedings."
The legislation directs multiple investigations, he pointed out.
Keating and other officers might not like being subject to multiple probes, Charney said, but this is the law.
Joel Dubois, the police service's lawyer, told Kelly he wasn't taking a position on the defence's application.
He reviewed applicable case law and legal principles relating to the issues — abuse of process, delay, the multiplicity of proceedings and prejudice — raised by Pascuzzi.
Kelly reserved his decision after noting there is "a great deal of material" to review.
The hearing officer indicated he hopes to complete the matter in a reasonable time.
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