Crown stays WPS assault charges, offers court explanation in ‘spirit of transparency’

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This article was published 01/09/2023 (818 days ago), so information in it may no longer be current.

More than four months after Manitoba’s police watchdog laid assault charges against three Winnipeg officers, Crown prosecutors have decided there’s no reasonable likelihood of conviction.

Now, as the Crown office aims for more transparency, it issued a public explanation in court this week about why the charges are being dropped.

It’s unlikely a judge would have decided the accused did anything other than their jobs in this case, an incident captured on video surveillance cameras, the Crown stated.

Three Winnipeg Police Service officers were charged with assault causing bodily harm after they arrested a man suspected of stealing catalytic converters by cutting the devices from vehicles with an electric saw April 11, 2022.

The suspect ended up with a fractured eye socket. As a result of the serious injury, the Independent Investigation Unit of Manitoba began investigating.

However, video of the incident shows the man’s eye injury likely happened before the three accused officers arrived on scene, court heard this week.

An off-duty WPS officer chased and had a lengthy physical fight (more than six minutes) with the suspect before the arresting officers took over. The video also shows the off-duty officer clearly striking the suspect in the face, the Crown said in court.

The off-duty officer was never charged, and no charges against him were recommended by the IIU or Crown.

Crown attorney Brent Davidson appeared in provincial court Aug. 29 to enter stays of proceedings on the criminal charges against Const. Evan Fehr, Const. Barry Knudsen and Const. Tyler Rahn.

“It would be easy for me to stand before the court and say something similar to, ‘The Crown simply does not have a reasonable likelihood of conviction,’ but in the spirit of transparency, I can say that the most likely outcome in this particular case is that the court would find that the actions of these officers were within the lawful execution of their duties,” Davidson said.

“In circumstances such as that, it would be contrary to my role as a representative of the minister of justice to proceed with the prosecution of these three officers — even though I recognize the significance of that decision and the public interest in holding officers who are alleged to commit criminal offences accountable to the full extent of the law.”

Manitoba prosecutors do not have to provide any explanation when they decide to drop charges; they don’t even have to appear in court to do so. They can simply fill out a form.

The Manitoba Prosecution Service is trying to uphold public confidence in the justice system by providing more public education and more transparent explanations for its decisions, said executive director Michele Jules.

“We are absolutely making attempts to be more transparent, putting more things on the record.”

The intention is for prosecutors to explain when they can, “to meet the strategic goal of public confidence in the system.”

Like police agencies, the IIU has a lower standard to meet when laying charges than the Crown’s office does when deciding whether to pursue them in court. It was the IIU’s past practice to get a Crown opinion before deciding to lay criminal charges against police. That didn’t happen in this case.

The IIU did have access to the video footage before the charges were laid, the Free Press confirmed Friday. The video leaves “little ambiguity” about what transpired, Davidson said.

In court this week, the prosecutor went through the facts of the case, and said video showed none of the three accused hit the suspect in the face.

While they were attempting to handcuff the suspect, Knudsen, Fehr and Rahn each kicked the man. The man was laying on his stomach on the ground with his arms underneath him.

Police reported they had been told the suspect had a weapon. They stopped kicking his legs and shoulders as soon as he brought his arms out from under him, showing he had no weapon. He was handcuffed within 14 seconds, according to the surveillance footage.

According to the Crown, the off-duty officer was leaving the Portuguese Association at Young Street and Notre Dame around 9:30 p.m., when he heard a grinding sound coming from the parking lot.

Two men, one of whom was carrying an electric saw, fled the scene. The off-duty officer chased the man about 300 metres down Notre Dame Avenue. The man swung the saw at the off-duty officer’s face, and a struggle ensued.

Davidson told court the off-duty officer believed the suspect had a Taser, because he had pulled a black, illuminated object out of his waistband. The video footage shows such an object on the curb, but it wasn’t seized by investigators, Davidson said.

The IIU was notified of the incident the day after it happened.

A public explanation for staying the charges was necessary, a criminologist and former Crown prosecutor agreed.

“In cases like this, where the Crown prosecutor’s office has overruled an investigation agency like the IIU, such cases require meticulous reasoning as to why charges were not pursued,” said University of Winnipeg criminal justice Prof. Michael Weinrath.

“The average citizen might like to see that video and form their own opinion.”

The video surveillance footage obtained as part of the IIU investigation hasn’t been publicly released.

Brandon Trask, an assistant professor of law at the University of Manitoba, previously worked as a Crown prosecutor in Newfoundland and Nova Scotia.

He said this situation demanded an explanation in the form of reasons on the court record, something many other provinces already commonly do when charges are dropped.

“Manitoba’s a bit late to the party in that sense, but I think it’s a good step forward,” Trask said.

However, he questioned provincial prosecutors’ long-standing practice of entering a stay of proceedings, which technically means the case could be brought back to court within a year.

katie.may@freepress.mb.ca