THUNDER BAY — The Crown and defence had very different interpretations of a 20-second body-worn camera video showing a Thunder Bay Police Service officer punching a man in the face, focusing largely on whether or not the 33-year-old man exhibited signs of aggression toward the officer.
Closing arguments were heard in the trial for Const. Andrew Frankow in a Thunder Bay courtroom on Tuesday before Justice David Gibson. Frankow pleaded not guilty to the charge of assault causing bodily harm when the trial opened on Monday.
The charge relates to an incident outside Thunder Bay city hall the afternoon of April 3, 2022. Frankow and one other officer responded to a 911 call from a security guard at city hall regarding intoxicated individuals consuming alcohol inside a bus shelter.
The security guard, who testified on Monday, also said one of the individuals, later identified as the male struck by Frankow, was acting aggressively toward him and wanting to fight.
Crown attorney Vlatko Karadzic called only the one witness to testify and submitted video surveillance and body-worn camera footage as evidence.
Frankow’s body-worn camera shows him exiting the police vehicle and entering the bus shelter where he addresses the man by name and says he can’t be drinking in public.
Frankow then grabs a box of wine from the man’s pocket and proceeds to dump it out inside the bus shelter in front of him. The man appears to reach for the wine twice and after the second time, Frankow strikes him in the face, sending him to the ground.
The man was knocked unconscious and he was transported to the hospital by paramedics. The man’s injuries consisted of a fractured cheek bone and bruising to the face.
Following the altercation, Frankow is heard saying: “you picked the wrong person to fight today,” and later to paramedics: “I punched him squarely in the face. He stepped back and squared off and I drilled him before he could hit me.”
The Special Investigations Unit launched an investigation after the incident and determined there were grounds to lay the assault charge against Frankow.
Karadzic argued in his closing submission that the video evidence from the body-worn camera does not show the man ‘squaring off’ against Frankow.
“Where is the evidence that [the victim] is doing anything other than trying to get his wine back? There is no such evidence,” Karadzic said. “Where is the evidence that [the victim] is squaring up against Const. Frankow or pushing back on him or whatever various ways he described [the victim’s] actions? There is no such evidence. It is Mr. Frankow who is applying all of the force in this situation.”
Karadzic went on to argue that it was Frankow who escalated the situation first by grabbing the wine from the man’s pocket and then proceeding to dump it out in front of him.
While no evidence was presented that the man was unhoused or an alcoholic, Karadzic said Frankow should have recognized certain aspects of the situation, including the man clearly being intoxicated and drinking in broad daylight in a bus shelter.
“Who is creating a situation where a use of force could potentially be used down the line?” Karadzic said. “It’s Const. Frankow. He must know that. He is creating a situation where things may get physical. Do things actually get physical, no they don’t.”
According to Karadzic, the video evidence shows that the man was only reaching for the alcohol, which did not warrant being punched in the face by an officer.
“That is so far outside the range of responses, so unreasonable, that it takes it out of the realm of any justifiable use of force,” he said. “You could have pinned his arm again, gained distance, pushed him back, you could have done a litany of things that did not involve throwing that overhand right that involved grabbing him by the coat and pulling him toward you.”
Defence counsel James Foord presented a much different interpretation of the video evidence during his closing submission.
Foord pointed out that in the first few seconds of the video recording when Frankow exits the police vehicle, it appears the man is acting aggressively towards a woman inside the bus shelter.
“There are a few seconds of aggressive conduct by [the victim] against a lady,” he said. “We can’t rely on the statements of the lady but you can rely on the front and centre assaultive behaviour of [the victim] in the seconds before Mr. Frankow enters the shelter.”
The video recording of the actual punch also raises some questions, according to Foord, including whether or not the man was acting aggressively toward Frankow.
Foord referred to seconds before the punch when the man’s right arm is lowered and out of view.
“You are not able to see what, if anything, [the victim] is doing with his right hand or how it’s configured or if it is in a fist or not,” he said.
The man’s demeanour inside the bus shelter was also argued by Foord as being aggressive toward Frankow.
“We see that this individual is not letting it go. He does not leave. He stands there. He tries to take away the wine at least at the beginning. He is obstructing the officer in the course of his duty. When he reaches out to the officer he is assaulting the officer,” Foord said.
“When the officer says ‘he pushed back at me,’ he did. Right arm first, then left arm, then the right arm comes up. When he says he squares off, he doesn’t leave. He looks at him straight in the eye and doesn’t leave.”
Foord went on to describe Frankow as being the kind of officer you want on the streets and that he acted as an ‘imperfect gentleman’ but a ‘gentleman nonetheless’ in the situation.
“This happened involving an intoxicated, dangerous, demonstrated violent person,” Foord said. “The moment is one second and the issue is whether the Crown has proven with the partial view they provided that the only conclusion is the force here was excessive. We say there is reasonable doubt, that it was reasonable and proportional.”
Frankow, who was employed as a police officer for four years at the time of the incident, was suspended by the Thunder Bay Police Service. A code of conduct investigation will also be launched internally following the conclusion of the criminal proceeding.
The defence did not call any evidence at the trial. The matter will return on Thursday to select a date for Gibson’s decision.
