THUNDER BAY – The actions of a Thunder Bay Police Service officer that left a 60-year-old man with facial injuries should come down to whether or not the judge deems them to be reasonable, according to the defence, but the Crown argues they were unreasonable, unnecessary, and disproportionate to the situation.
Closing submissions were presented to Justice O’Marra in a Thunder Bay courtroom on Friday for the fifth and final day of the trial for Const. Ryan Dougherty.
Dougherty pleaded not guilty to the charge of assault causing bodily harm for striking the 60-year-old complainant four times in the head while he was being apprehended under the Mental Health Act in November 2022.
During the trial, both the complainant and Dougherty testified, with each providing differing accounts of what took place on the side of Oliver Road when Dougherty attempted to apprehend the complainant after he left the Thunder Bay Regional Health Sciences Centre.
The complainant had been transported to the hospital after other officers conducted a wellness check and were concerned for his well-being due to alleged expressions of suicidal ideation.
According to the complainant’s testimony, Dougherty struck him in the face and knocked him to the ground after pulling up in his police cruiser.
Dougherty testified that he first tried to engage the complainant in conversation and requested he return with him to the hospital. When the complainant refused and began walking away, Dougherty grabbed him by the wrist but he continued to pull away.
A struggle ensured, with the complainant being taken to the ground. Dougherty testified the complainant continued to resist and he became panicked and afraid for his safety, fearing the fight could escalate.
Dougherty then warned the complainant to stop resisting or he would punch him in the head. When he continued to resist, Dougherty punched him in the head twice, and then again two more times after a second warning. The complainant then stopped resisting, according to Dougherty, and was placed in handcuffs.
The complainant returned to the hospital two days later and was diagnosed with a fractured nose and concussion.
Defence says trial all about reasonableness
Defence counsel Michael Hargadon said in his closing submission that this trial is: “fundamentally about reasonableness.”
“There are all the things that could have been done,” he said. “That’s not the test. It’s whether in those particular circumstances, the Crown can show all of that was patently unreasonable. I don’t think fundamentally that they can.”
He then outlined several constraints that define the situation in question, with the first being that of time.
“All human actions and decisions are subject to timing,” he said. “That is the first major constraint of what we can do. We don’t have unlimited amounts of time to make the correct decision or contemplate all of our available options, or, and it’s important in this case, to really get to know each other.”
Police are also constrained by their legal duty, Hargadon argued, and both the complainant and Dougherty were constrained by their own values.
“You can see from both of them, these are proud individuals,” he said. “They are individuals who do their best in stressful situations to conceal their emotions. That was clear in the cross-examination of them both.”
And while Hargadon said the complainant was a credible witness, he argued he was not a reliable one because his memory was affected by his head injury that night and intoxication.
Fear may have also played a role in both the situation itself and testimony at court, according to Hargadon.
“Every witness in this case is going to have difficulty with recall because of fear,” Hargadon said. “There are different levels to that fear. One could be fear of physical discomfort, fear of being taken somewhere we don’t want to go, fear of imminent harm, fear of embarrassment of being placed in a position where we have to answer questions.”
Hargadon argued Dougherty’s actions during the altercation were reasonable because he feared for his safety and his actions leading up to it were also reasonable because he was attempting to apprehend someone under the Mental Health Act.
“Was there anything objectively wrong when someone is trying to escape lawful custody to refuse to be arrested and moving away and you grab them, I would say no,” he said. “Once that touch is engaged, that is what everything else flows from.”
Crown argues Dougherty ‘went rogue’
Crown attorney Vlatko Karadzic argued the blows inflicted upon the complainant by Dougherty in that circumstance were not reasonable, necessary, or appropriate.
“This case has always been and remains to be about one thing, Const. Dougherty’s decision to punch the complainant in the face four times to try and gain compliance in circumstances that were entirely Const. Dougherty’s doing,” Karadzic said.
“It is concerning that Dougherty made these decisions in light of all other options available to him.”
Karadzic said Dougherty had ample opportunities to call for assistance before engaging the complainant physically and he pointed out Dougherty struck the complainant after calling for backup while knowing other officers would be enroute.
There was also a focus by Karadzic on use of force training provided to police officers that teaches officers to plan, assess, and act.
“The best way to assess the situation is to create distance between you and the individual because that gives you sufficient time to assess the situation,” Karadzic said.
Karadzic also raised concerns regarding Dougherty’s notes taken shortly after the incident and the supplemental occurrence report he completed at the end of his shift. He said they are not consistent with the testimony he gave in court because they do not make mention of his attempts to first engage the complainant in calm conversation.
The report also indicated that Dougherty believed the complainant struck his head on the back of the seat inside the police cruiser. During his testimony he said he now knows that to not be the case and he made an error in the report.
But Karadzic argued Dougherty put that in the report as a way to explain the complainant’s injuries and avoid completing a use of force report.
During Dougherty’s testimony when describing his feelings after first leaving the hospital in search of the complainant he started to say he was frustrated, but corrected himself and said he was feeling anxious.
Dougherty did say he was frustrated with the hospital for allowing an individual there under the Mental Health Act to walk out, which he said was reflected in the heated exchanges he had with the complainant recorded on the camera inside his cruiser after he was apprehended.
Karadzic focused on that correction, arguing Dougherty’s frustration before leaving the hospital to search for the complainant is what escalated the situation.
“The Crown is not suggesting that Const. Dougherty or other members of the police service or the public shouldn’t be frustrated at that situation,” he said.
“The concern is he is not prepared to use that word to describe his actions beforehand because he thinks that by expressing that it may lead to an inference of how the level, the tone, the communications he uses after are consistent he would have used before.”
Because Dougherty’s body-worn camera was not activated until other officers arrived with emergency lights engaged, Karadzic said there is no objective evidence to what happened that night.
But he argued Dougherty’s decision to strike the complainant who was not in a position to defend himself is not covered by the use of force in the execution of his duties under Section 25 of the Criminal Code.
“Not only did he abandon all the use of force training, but also the policy in relation to use of body worn cameras, the policy of dealing with someone with a mental illness, that is why the Crown says quite frankly, he went rogue,” Karadzic said.
O’Marra is expected to deliver his decision in late September.
