THUNDER BAY -- A Thunder Bay Police Service officer convicted of assault could face jail time, but the judge also believes a restorative justice approach could benefit all those involved.
“I don’t want to leave the community in worse shape than it was before this incident,” said Justice David Gibson during a sentencing hearing for Thunder Bay Police Service Const. Andrew Frankow on Thursday.
Gibson found Frankow guilty of assault causing bodily harm for punching a 33-year-old Indigenous man in the face while responding to a call for service in April 2022.
During the trial, body-worn camera footage entered as evidence showed Frankow responding to a bus shelter outside city hall.
Shortly after arriving on scene, Frankow entered the bus shelter, addressed the man by name, and proceeded to take a container of alcohol out of his pocket and dump the contents on the ground.
When the man reached for the container, Frankow punched him in the face, knocking him unconscious. The man suffered a fractured cheek bone and bruising to the face.
In his ruling, Gibson said Frankow’s actions were provocative and that his use of force was unreasonable.
During the sentencing hearing on Thursday, the court heard a community victim impact statement from Nishnawbe Aski Nation Deputy Grand Chief Anna Betty Achneepineskum.
“When I saw the video put into evidence in this trial, I was in shock, but I was also deeply saddened,” Achneepineskum said.
“This crime has caused many different reactions of people throughout NAN. Many of us are appalled and angered by this crime. For some, this brings back frightening memories, bitter stories about a loved one who experienced something similar. For many the anxiety has come from wondering if you will be next or if this will happen to you or your daughter or your son.”
Achneepineskum added there is a long history of distrust and negative perceptions of policing in the Indigenous community and actions like that of Frankow’s result in more people losing faith in the police service.
“When a police officer is found guilty of causing bodily harm to a citizen, it has far-reaching impacts on First Nation communities,” she said. “Police violence does not only impact the victim, but all of us.”
A victim impact statement was also provided by the 33-year-old man who was assaulted.
The statement says he can no longer trust anyone, especially police officers, and he fears running into Frankow again.
During sentencing submissions, defence counsel James Foord acknowledged that this is a particularly challenging case.
“You have to deal with sentencing an individual, when you consider the body of information in the totality, who is a very good person that made a mistake in challenging circumstances that happened very fast,” he said.
Numerous letters of support for Frankow were submitted to the court for consideration.
“This is a person who is a kind, compassionate, hardworking, devoted, loyal individual who shares his skills and strength to help them,” Foord said while characterizing the content of the letters. “He has never been known to be violent. He is a good person. And he was a good police officer who made a mistake.”
Given these mitigating factors, as well as Frankow as a first-time offender with no disciplinary actions against him while serving as a police officer for the four years prior to the incident, Foord argued a conditional discharge is an appropriate sentence in this case.
In addition to the conditional discharge, Foord recommended 200 hours of community service, $800 in restitution, and completion of de-escalation and use of force training.
“Given denunciation and deterrence, more needs to be done than just a conditional discharge that animates the conditional discharge that makes sense and sends a message to the community that this is not impunity and this is accountability and meaningful,” Foord said.
A no contact order with the victim would also be ordered, but Foord asked there be an exception for the possibility of participating in a mediation or circle involving Frankow with details agreed upon by the community.
Crown attorney Vlatko Karadzic said a conditional discharge does not meet the principles of sentencing and in order to achieve denunciation and deterrence, particularly among police officers, a custodial sentence is needed.
“This case plainly calls out for a jail sentence,” he said. “The issue is whether the principles of sentencing could be met by having that sentence be served in the community under house arrest.”
Karadzic called for a custodial sentence in the range of 90 to 120 days, to be served either in a custodial institution or as a conditional sentence to be served in the community under house arrest.
“The Crown does not arrive at a custodial sentence recommendation lightly, as it wouldn’t if this wasn’t a police officer, but another person without a criminal record,” Karadzic said.
Under the Police Service Act, a custodial sentence results in automatic disqualification for future employment as a police officer. A conditional discharge would leave future employment as a police officer up to the employer.
Karadzic said leaving the decision whether or not Frankow can continue to be employed as police officer up to the employer does not send an adequate message of accountability.
“If the message is sent loud and clear that sentences will result in a disqualification in terms of future employment and deprivation of liberty, perhaps the next time an officer is involved with a member of a vulnerable population, they will choose de-escalation,” he said.
Other aggravating factors were also cited by Karadzic, including Frankow’s training as a police officer, the victim’s vulnerability, the significant force used in the strike, and Frankow breaching the trust of the community in his role as a police officer.
But Karadzic also referred to the context in which the assault took place and the distrust that already exists in the Indigenous community concerning the Thunder Bay Police Service.
“The Crown is not suggesting Mr. Frankow’s actions were racially motivated or based on biases towards Indigenous people,” he said. “However, the fact that the victim was an Indigenous person and that Mr. Frankow was aware of that and despite the culture of mistrust that exists, he acted in that manner nonetheless.”
“It’s important in terms of the people in this room today, that this offence has affected more people than just [the victim] and Mr. Frankow.”
When given the opportunity to speak, Frankow said he was sorry that the victim was injured in the situation and that it was never his intent while executing his duties.
Gibson also cited the ongoing mistrust of policing among Indigenous people in the city of Thunder Bay and he said he does not want to leave the community in a worse position than it was before this incident.
“There’s been turmoil introduced into the pre-existing state of the community. Every rock that gets thrown into that pond creates more waves, that rocks more boats, that causes more disturbance that plays itself out in all sorts of ways,” he said, addressing Frankow.
“So if you are prepared to bear the burden and put yourself at the centre of a process that is designed to not fix things, but not leave them worse than when we found them, I would give you full credit for that.”
Frankow said that is something he is absolutely prepared to do.
Gibson added that he understands Frankow has been carrying the weight of this and part of restoration is getting him to a place “where you are not broken over this either.”
The matter has been adjourned to March for a hearing in Restorative Justice Court that is to include appropriate members of the community before Gibson releases his decision on the sentence.
