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This article was published 10/12/2020 (290 days ago), so information in it may no longer be current.
A Winnipeg Police Service officer investigated for excessive force after he pepper-sprayed a cyclist won’t be criminally charged — even though there were grounds to do so, Manitoba's police watchdog has determined.
The Manitoba Prosecution Service told the Independent Investigation Unit of Manitoba there is reasonable doubt WPS Patrol Sgt. Jeffrey Norman used excessive force when he pepper-sprayed a Winnipeg man who was biking home from work in 2019.
In the Crown's opinion, a charge shouldn't be laid in the case, because it may not lead to a conviction. The office reviewed the evidence and sought an expert opinion on police use of force before making its decision, according to an IIU report released Thursday.
"We have concluded that a reasonable doubt exists as to whether the officer’s use of force was excessive. Consequently, although grounds exist to arrest the officer and lay a charge, we are not satisfied that there is a reasonable likelihood of conviction. When MPS is consulted for charge authorization in any criminal matter, we employ the same standard for proceeding with criminal charges," states an excerpt of the prosecution service's statement to the IIU.
After the April 12, 2019, confrontation, Thomas Krause alleged in a public Facebook post he was pepper-sprayed and unnecessarily detained by Norman, after he asked the officer to turn off his vehicle's high beams.
Krause was biking home from work around 3 a.m., when he crossed paths with a police vehicle on Home Street, near St. Matthews Avenue. The officer responded belligerently to his request, Krause said, and told him he matched the description of a suspect he was looking for: a white male with a backpack on a bicycle.
Krause said Norman pepper-sprayed him after he told the officer he didn't think he had the right to search his backpack.
The IIU, an arm's-length agency that investigates serious incidents involving police, opened a file on the incident 20 months ago, and asked the Crown office to review its investigation.
Zane Tessler, civilian director of the IIU, said the circumstances of the case fell into a "grey area," and that's why he asked for a Crown opinion — which he doesn't have to follow.
Tessler could lay charges himself, regardless of the Crown's recommendation, but it's still up to the Manitoba Prosecution Service to prosecute the case. The IIU doesn't engage an out-of-province prosecution service to handle criminal charges that arise from its investigations.
"In this particular case, the Crown opinion was quite lengthy and detailed, and we did have discussions about it. At the end of the day, it was evident that the Crown was not prepared to proceed on any matters," Tessler said Thursday.
Norman (referred to in the IIU report as the subject officer) was interviewed and provided his notes to IIU investigators — even though police officers who face such of allegations don't have to participate in IIU investigations.
His notes detail a very different version of events.
Norman wrote he was investigating a report of three people, including someone described as a white man with a backpack and a bike, breaking into cars in the area. In his use-of-force report about the pepper-spray incident, Norman wrote he believed the cyclist he encountered was involved in the break-ins.
Norman wrote he used pepper spray to stop the man from escaping and prevent a physical altercation, and because he feared for his own safety.
In his notes, Norman wrote Krause "was going to flee and escape a lawful detention and assault (Norman) in the process." He wrote Krause had a "large build," didn't listen to his requests to get off his bike and tried twice to flee.
Krause told the Free Press that's not what happened.
Krause was eventually released, after Norman determined he wasn't involved in the break-ins.
The Free Press sought comment from Norman via the Winnipeg Police Service and the Winnipeg Police Association. The WPS said it doesn't comment on IIU cases; the police union did not respond.
The 27-year WPS officer has previously faced misconduct allegations but has never been criminally charged.
He has been sued at least eight times in Manitoba for allegations including excessive force, wrongful arrest and destruction of video and photographic evidence.
Krause disputes Norman's characterization of events, saying he didn't try to flee before he was pepper sprayed.
"I had no reason to run from the cops," he said Thursday.
After waiting more than a year-and-a-half for the IIU investigation to conclude, Krause expressed disappointment in the decision not to lay charges.
"It's really upsetting, and just kind of indicative of how toothless, I guess, the IIU is, and the Crown, when it comes to disciplining police officers that have used excessive force or were in the wrong," he said.
He believes his initial Facebook post was more effective than complaining to the police watchdog.
"I think that the use of social media in this scenario did more good than the... investigation that the IIU has done."
In the Criminal Code, police officers have protection from facing criminal charges for carrying out their lawful duties.
Officers are allowed to use reasonable force while doing their jobs, as long as that force is not excessive.
The WPS policy on pepper spray use states it's not meant to be a first option. It's considered an intermediate weapon, to be used when an empty hand either doesn't work or doesn't make sense, and when lethal force is not an appropriate response.
Katie May reports on courts, crime and justice for the Free Press.