A case involving a Winnipeg officer accused of knocking out a suspected shoplifter with a baton while off-duty should have been flagged immediately for Manitoba's police watchdog, an expert on civilian oversight of policing argues.
Ian Scott, a lawyer and former head of Ontario's Special Investigations Unit, says the case is a clear example of the type of incident that should trigger a notification to the Independent Investigation Unit.
"Minimally, the IIU should have been notified, and then the question becomes does it satisfy the IIU’s threshold for an investigation?… This is sort of a murky situation you’ve got here," Scott said.
"It would seem to me to fit a public interest criteria."
The Winnipeg Police Service did not disclose the February incident to the IIU because the extent of the injuries of all parties did not rise to the definition of "serious injury," the WPS said in a written statement to the Free Press Thursday.
"It was determined that the injuries sustained by any involved person in that incident did not meet the definition of serious injury laid out in the Police Services Act Independent Investigations Regulations," said the email from the WPS which declined further comment.
The incident, which involves a veteran officer with a history of misconduct complaints and a 19-year-old Indigenous suspect, came to light this week following a Free Press investigation.
Scott disagrees with the WPS, saying the case fits a broader pattern of Canadian law enforcement agencies at times missing the spirit of civilian oversight legislation or failing to live up to the letter of the law.
"The whole construct of all these agencies is to ensure they’re notified as quickly as possible so they can do an effective investigation," Scott said.
"I had exactly these problems at the SIU with delayed notification, no notification. I wrote hundreds of letters to police agencies on this point while I was there. Sometimes I actually got some action on them but, most of the time, I didn’t."
Patrol-Sgt. Jeffrey Norman, a 22-year veteran of the force, was not in uniform and not on shift Feb. 23 when he followed suspected shoplifters from a Dakota Street liquor store to a residential area where a confrontation ensued. The suspects allegedly assaulted Norman with a tire iron and liquor bottle. Norman suffered a concussion and sprained wrist and was treated in hospital, according to a bail hearing for one of the three accused.
Brian Menson appeared via video at the bail hearing two days after the incident with stitches across his forehead and scabs on face and ear, which prompted provincial court Judge Stacy Cawley to note his "obvious injuries." Defence lawyer Mitchell Enright told the hearing Menson blacked out after being struck in the face by a baton and "the next thing he remembers is waking up in a pool of his own blood."
Menson, now 20, is charged with assaulting a peace officer, assaulting a peace officer with a weapon, resisting arrest and theft under $5,000. He and two other suspects are accused of stealing 20 bottles of liquor worth $630. He has no criminal record and a trial date has not yet been set.
“The whole construct of all these agencies is to ensure they’re notified as quickly as possible so they can do an effective investigation.” – Former head of Ontario's Special Investigations Unit Ian Scott
The Free Press previously asked the WPS about the allegations, if it had notified the IIU, and why Norman would have had a baton while off duty, but the police service didn't respond.
The IIU still has not been formally notified of the case, the agency confirmed Thursday.
When asked if the IIU will now open an investigation and if it has contacted the police service about the case, a spokesman for the IIU said its investigations begin with a proper notification from police.
"In regard to this incident, the IIU has not received any notification from the Winnipeg Police Service. Hence, the IIU has no further comment on the matter," Jack Marquardson wrote in an email.
The IIU has at least one open file looking into Norman’s use of force. The case involves a cyclist who alleged Norman wrongfully detained and pepper sprayed him in April 2019. It did not involve serious injuries.
Thomas Krause, now 31, was biking home from work on Home Street near St. Matthews Avenue around 3:15 a.m. on April 12, 2019, when he saw a passing vehicle with high beams on and asked the driver to turn the brights off.
Krause then realized it was a police vehicle and said the officer got angry. Krause found out it was Patrol Sgt. Norman when, after the incident, the officer handed him a card with his name on it, a copy of which was provided to the Free Press.
"He said he was looking for a white male on a bike with a backpack," Krause told the Free Press a few days after the 2019 incident. "He asked to search my bag, and I told him I don’t think it’s within your rights to do that, and his way to respond was just to mace me in the face, point blank."
The IIU hasn’t made a decision on whether Norman should face criminal charges in that case. Civilian director Zane Tessler confirmed the investigation is still open. But Krause said an IIU investigator told him in November 2019 the agency had handed the file off to the Crown’s office and was waiting for a legal opinion.
"He asked to search my bag, and I told him I don’t think it’s within your rights to do that, and his way to respond was just to mace me in the face, point blank." – Thomas Krause
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The Free Press reviewed every final report published on the IIU’s website and discovered 18 cases where Tessler noted he’d forwarded the investigative file to the Crown’s office for a legal opinion. In each case, the Crown advised charges should not be laid.
Eight months after being told his case had been forwarded to the Crown, Krause is still waiting.
"It's a pretty surreal thing that happened. It feels like a dream, because there's no closure," he said a year and three months after he was pepper sprayed.
"It's just sort of like, this thing happened, and then I went home, and there's been no follow-up or anything. That said, I would like to have some sort of punctuation on this whole scenario. But I think I got out easy compared to what most people... go through in terms of excessive force."
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Under the Police Services Act, police agencies must notify the Independent Investigation Unit in cases where the actions or inactions of an officer—whether on- or off-duty—result in death or serious injury, or if there is reason to believe an officer may have committed a criminal offence.
In a written statement Thursday, the IIU pointed to specific sections of the notification law, saying investigations by the unit begin with receipt of proper notification from a police service of a serious incident that falls within the jurisdiction of part 7 of The Police Services Act. This includes:
-notification of any public interaction with police that results in a death or serious injury
-any interaction that alleges a breach of a prescribed offence (perjury, contradictory evidence, fabricating evidence, obstructing justice)
-any other circumstance where a breach of the criminal code or other provincial or federal statute is alleged, and where the IIU civilian director is of the opinion that the public interest demands an investigation.
The Winnipeg Police Service pointed to the legal definition of "serious injury" that is listed in the Independent Investigations Regulation of Manitoba's Police Services Act.
It defines serious injury as:(a) a fracture of the skull, jaw, vertebrae, rib, humerus, radius, ulna, femur, tibia, or fibula;
(b) burns, cuts or lacerations that require admission to a hospital on an in-patient basis;
(c) the loss of any part of the body;
(d) the loss of vision or hearing;
(e) internal injuries that require admission to a hospital on an in-patient basis; or
(f) any injury caused by the discharge of a firearm.