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Cops Punch Handcuffed Man

The most dangerous elevator ride in town

Saskatoon Cops can't break habit of beating defenceless people

Saskatoon Police crest

This story has received a lot of play. The John Gormley show stirred things up on July 24 and attacks on Judge Whelan continued on the air. Everyone neglected to mention that the cops Johnstone and Seamans had deliberately left the incident out of their reports, thereby deceiving the Crown and deceiving the court. On Aug. 25, Gormley acknowleged this oversight after receiving a call from Richard Klassen.

Nonetheless, a frighteningly large number of people expressed the view that it is fine to punch in the face a handcuffed man who spits at you.

Gormley also called the police station and verified that the elevator where Neil Terrance Bear was slugged is equipped with a camera.

Several people who had taken that same elevator ride called in to state they had also been beaten in that elevator. They said they were drunk and did not hold it against the police.

So, remember if you get picked up drunk in Saskatoon, expect an elevator ride where you go in clean and come out bloody. If you flip the cops a bird, as Darrell Night did, you can perhaps expect to be taken on The Starlight Tour -- or whatever substitute they have come up with since Hatchen and Munson got nailed.

Remember all that talk about the need for a detox center to take drunks to? The sod was turned to begin building one this summer. It won't be ready until next year. We wonder what these cops will do for entertainment when it finally gets built!

We should also point out that Chief Sabo's call for an internal investigation doesn't really cut it. Just last month he said he would welcome an outside agency to come in and investigate his force. -- Sheila Steele, August 27, 2003

Police launch internal investigation after judge's ruling

An internal police investigation has been launched, following a recent written decision by a provincial court judge.

In the decision released Aug. 8, Judge Sheila Whelan chastised Const. Andrew Johnstone for failing to report his use of force against an individual in his custody, and ordered that copies of her judgment be sent to the Saskatchewan Police Commission and the Federation of Saskatchewan Indian Nations (FSIN) justice committee.

In April, Johnstone and a fellow constable became involved with Neil Terrance Bear when someone phoned police to say Bear was being assaulted at his uncle's house. Bear himself was arrested on an outstanding warrant.

Johnstone reported that Bear appeared intoxicated but was co-operative. As he escorted Bear to the elevator in the police station detention bay, Bear turned to spit in the officer's direction, just missing his sleeve.

Johnstone said Bear appeared to be preparing to spit again, so he punched him twice in the face and shoved him into a corner of the elevator.

Bear maintains he wasn't aiming at the officer, but Johnstone testified he perceived spit as a threat to his well-being.

However, Whelan found Bear, 21, not guilty of assaulting the officer by spitting toward him. She also wrote that police officers have a great deal of power and discretion, "and it is very important that they not abuse or be seen to abuse either."

Late Thursday afternoon, police received information from the provincial Justice Department, "and as a result of that we have launched an internal investigation into the concerns that were raised by Judge Whelan," Acting Insp. Lorne Constantinoff, of the Saskatoon Police Service, said Friday.

Constantinoff said having the police investigate the conduct of another officer is the "normal course of action whenever we receive a complaint in this manner.

"Then we look at it internally, and we decide what course of action we're going to take as a result of the investigation."

Constantinoff said the investigation began on Thursday. He didn't have a timeline for how long it may take.

"Sometimes these things stretch right out, and sometimes they're over very, very quickly," he said.

Man acquitted for spitting on officer

Neil Terrance Bear says a Saskatoon Police Service officer should lose his job for punching him twice while he was handcuffed in custody.

Bear, 21, speaking from Saskatoon Correctional Centre where he's housed for an unrelated assault, said Const. Andrew Johnstone erupted after Bear casually spit in his direction. The officer had been leading him into custody at the Saskatoon police station in April.

"I was trying to spit and he happened to be there. I didn't do it intentionally. Next thing I'm getting thrown to the wall."

A provincial court judge chastized Johnstone in a written decision released Aug. 8 that finds Bear not guilty of assaulting the officer by spitting toward him. Judge Sheila Whelan also ordered that copies of her judgment be sent to the Saskatchewan Police Commission and Federation of Saskatchewan Indian Nations justice committee.

"Oh yeah, it's satisfying to be acquitted of the charges," Bear said. "He should be getting charged for assault."

In April, Johnstone and a fellow constable became involved with Bear when someone phoned police to say Bear was being assaulted at his uncle's house.

The officers responded to the call, learned there was an outstanding warrant for Bear and arrested him.

Johnstone reported Bear appeared intoxicated but was co-operative. As Johnstone escorted Bear to the elevator in the police station detention bay, Bear turned to spit in the officer's direction, just missing his sleeve.

Johnstone said Bear appeared to be preparing to spit again, so he punched him twice in the face and shoved him into a corner of the elevator. The officer told court the struggle continued, with more spit attempts by Bear.

Bear maintains spitting is a habit and he wasn't aiming at the officer.

He said he's now thinking of suing the officer and hopes the police service removes Johnstone from the force.

"He should be punished somehow. He shouldn't be with the police service if he's going to be hitting people in custody. People are supposed to feel safe in custody. That night, I wasn't feeling safe."

Later in the evening, Johnstone noticed a gash in Bear's forehead, requiring stitches, and that his nose was bleeding, both conditions he attributed to the struggle.

"Peace officers have a great deal of power and discretion and it is very important that they not abuse or be seen to abuse either," Whelan wrote in her report, delivered Aug. 8. ". . . Officer Johnstone did not meet an appropriate standard of responsibility in his dealings with Mr. Bear."

Johnstone, who has been a police officer for three years and remains on the force, declined an interview request, saying he wasn't aware of the judge's decision.

Whelan further criticizes the officer for failing to report his use of force against Bear. The second officer also didn't write a report of the use of force.

Johnstone told court it was an oversight. He testified that he perceived spit as a threat to his well-being.

Bear's former legal-aid lawyer, Sam Beckie, said the failure to report force is more disturbing than the force itself.

"Police officers are human, after all. You can react suddenly without thinking. Even if it's the wrong way to act, if you acknowledge it, people recognize mistakes are made."

The police service has a policy requiring officers to report any use of force, said Acting Insp. Lorne Constantinoff. A police committee then reviews the actions.

Spitting isn't necessarily covered within police guidelines for using force, making it a judgment call, he said.

After struggling with the officer, Bear was lodged in a cell without immediate medical attention. When police took him to hospital, it was Johnstone who escorted him.

Whelan said she believes Bear, where there's conflict between his and Johnstone's testimony.

The police service is awaiting formal notification of the decision from the Crown prosecutor's office before deciding how to respond to it, said Constantinoff.

The force could proceed with an internal discipline process or with a criminal charge.

Justice Department spokesperson Deb McEwen said the department's law enforcement services will follow up the matter with Saskatoon Police Service. The Crown prosecutor has already forwarded the decision to the office of police complaints investigation.

Bear, who's aboriginal, said there were no indications that race was a factor in the beating by Johnstone, who's Caucasian.

Police given rough ride for doing job

I'm a seven-year member of the Saskatoon Police Service.

For too long, police officers have remained silent, as they have been discredited and trashed by the media -- in particular, The SP. I, for one, am completely fed up and I know a lot of tax-paying citizens are sick of the intense scrutiny.

As for Man acquitted for spitting on officer (SP Aug. 21), we deal with a large percentage of individuals who carry communicable diseases, such as hepatitis C and HIV. We often have no way of knowing if someone is carrying those diseases, until it is too late. Our training, therefore, requires that we treat each of these individuals as if they had such a disease.

Our work often brings us into violent confrontation with offenders. When a violent prisoner spits blood or bodily fluids in my face, I consider that an act of assault against me and use as much force as is necessary to subdue the person, whether he/she is handcuffed or not.

Nowadays, given a choice between being punched or having blood spit on them by an unknown individual, I'd guess that most people would rather be punched.

Judge Sheila Whelan's decision to acquit Neil Terrance Bear of assault against Const. Andrew Johnstone and then to condemn Johnstone's actions to protect himself from further assault shows how out of touch the judicial system is.

Who are we really protecting here? It seems to me, more and more, that it's the habitual criminals who will continue to victimize people, regardless of the wasted steps taken to rehabilitate them! What message does this send criminals for their animal-like behaviour? It condones their behaviour, sending no deterrence whatsoever.

All of the police officers I know work very hard, day to day, to keep this community safe. They simply do not deserve the constant negative scrutiny.

Blaine Lynch


Judge Sheila Whelan's decision


Introduction and Issues
[1] The Defendant was charged with an assault upon a peace officer, by spitting. There was an accompanying breach of probation. The Defendant did not have the necessary intent for an assault. In response to the spitting, the arresting Officer twice struck the Defendant in the face but failed to include this in his report of the incident. The Officer's response was without justification, out of proportion to the situation and not in the course of his duty as a peace officer.
[2] I find the Defendant not guilty of both charges.
[3] The Defendant went to his uncle's residence to get his jacket and was assaulted. M.D. Ambulance was called. They were unable to ascertain his identity. Constable Andrew Johnstone attended the scene with his partner, Constable Seamans (sp?). Officer Johnstone patted him down, found identification in one of his pockets, ran it through CPIC, and ascertained that there was an outstanding warrant for Mr. Bear. Once M.D. Ambulance was satisfied that he was alright, Constable Johnstone arrested the Defendant and transported him to the Saskatoon Police Service.
[4] Constable Johnstone observed that the Defendant was intoxicated and said that the room where he was located smelled heavily of alcohol or listerine. He said that Mr. Bear was unsteady on his feet, had bloodshot eyes, slurred his speech and had a very slow reaction time. The Officer felt that he was sufficiently alert to understand his rights to counsel and observed that the Defendant had been "good to deal with". Mr. Bear said that he had about 13 beer but that his recollection and responses that evening were affected more by the assault at his uncle's which included kicks to the back of his head, than the alcohol consumed.
[5] At the Saskatoon Police Service detention bay, Constable Johnstone took Mr. Bear by the right arm and escorted him to the elevator. He was cuffed with his hands behind his back. According to the Officer, while they waited for the elevator, the Defendant turned to him and spit at him, and just missed hitting his right sleeve. There had been no conversation or escalation of behaviour prior to this. The only "warning" of a change in behaviour, according to the Constable, was that he thought Mr. Bear looked angry, and that he made a noise which was suggestive of spitting. He said that the Defendant then continued to draw air as if to spit a second time. Mr. Bear said he did not intend to spit at the Officer. He was simply spitting as was apparently his habit.
[6] In response to the spitting, Constable Johnstone struck Mr. Bear twice in the face with a closed fist, grabbed him and shoved him into the corner of the elevator. He said the Defendant continued to try to spit and began to struggle with him. The struggle continued into the detention booking area where, he said, the Defendant continued to spit and fight. Mr. Bear was taken to the ground with the assistance of other officers and his head was held. He repeatedly made slurping noises during this struggle.
[7] Constable Johnstone observed no injuries on the Defendant prior to the incident in the elevator. In detention he noticed a nose bleed. During examination in chief, he attributed the nose bleed to the struggle in the detention booking area. The Officer's report of April 4 th was then reviewed on cross examination. It stated that the Defendant was shoved into the elevator causing his face to come up against the elevator wall and as a result he "possibly suffered a minor nose bleed". The Constable accepted the version in the report and then agreed that a nose bleed might explain continued noises and actions associated with clearing the throat and spitting.
[8] During his testimony, Mr. Bear said that he continued to clear his throat and thrash about because of the bloody nose and difficulty breathing which he attributed to the nose bleed and the struggle in the elevator and detention.
[9] Later in the evening, when a gash over the Defendant's eye was noticed, Constable Johnstone was called in to escort him to the hospital for medical attention. Mr. Bear received a couple of stitches over his right eyebrow. During cross examination the Constable said that the gash wasn't noticed during the struggle but he attributed this injury to his treatment of the Defendant in the elevator.
[10] Constable Johnstone said that he filed two reports about the incident. Neither the Crown nor the Defence received the second report which covered the hospital trip. He said that neither report disclosed that he struck the Defendant in the face. When asked why; he told the Court that it was an oversight.
[11] Constable Johnstone did not report the incident verbally to his fellow officers. He believed that his partner, Officer Seamans was nearby when the incident happened at the elevator. The partner did not testify.
[12] The Constable was asked by the Court if there was a policy or procedure for reporting violence by an officer in such circumstances and he said that there wasn't a policy. On further questioning by Defence Counsel he acknowledged that there was a procedure to report the use of pepper spray and serious incidents.
[13] When asked why he pressed the charge of assault peace officer; he said that he believed that the transfer of bodily fluids caused a threat to his well being and shouldn't be tolerated. He was definite in his assessment that the Defendant had deliberately spit at him and supported this view by referring to Mr. Bear's continued attempts to spit and the aggressive behaviour that followed.
Discussion of Issues The allegation of assault by Mr. Bear
[14] The assault peace officer charge was contrary to s. 270(1)(a) of the Criminal Code which provides as follows:
(1) Every one commits an offence who
(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
[15] Section 265 of the Criminal Code defines assault and provides in part:
(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or . . .
[16] Credibility and reliability are key to my decision and as such I have reviewed the decisions of R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and R. v. McKenzie (1996) 141 Sask. R. 221, 106 C.C.C. (3d)1 (Sask. C.A.). I accept the testimony of the Defendant, Mr. Bear. The evidence of what occurred before and after the alleged assault is consistent with his testimony. Where the testimony of Officer Johnstone is inconsistent with that of Mr. Bear, I reject it. The evidence demonstrated that this Officer used inappropriate force in response to what he perceived to be an assault by spitting. Further, he initially failed to report his wrongful behaviour. I do not accept that his failure to report his behaviour was an oversight. As such I am not prepared to rely upon his perceptions and the claim that Mr. Bear deliberately spit toward him.
[17] This allegation of assault peace officer is pursuant to s. 265(1)(b) of the Criminal Code. It matters not that the spit missed the Officer. However, intent is an essential element of an assault. Mr. Bear was careless when directing the spit; he maintained that he did not intend to spit at the Officer. As the gesture or action toward the Officer was the result of carelessness and was not intentional the Defendant must be acquitted. See R. v. Starratt (1971), 5 C.C.C. (2d) 32, [1972]1 O.R. 227 (C.A.). The Crown has essentially argued that the Defendant deliberately spit at the Officer and that he is presumed to intend the natural consequences of his act. In Staratt the Court stated:
The respondent submits there is a presumption that a man intends the natural consequences of his acts and while the appellant did not intend to hit the complainant in the mouth, in fact he did so as a result of his intentional swinging of the hand containing the handcuffs. We agree that there is such a presumption, but it is a rebuttable presumption and the [page34] appellant gave evidence which, in our view, rebutted it.
In this case I find as well that the Defendant has rebutted the presumption and did not intend to spit at the Officer.
The actions of Officer Johnstone
[18] Officers must, when circumstances warrant it, apply force in order to carry out their duties. Indeed they will on occasion inadvertently apply force and injure someone in their custody as was the case in R. v. Staratt, supra.
[19] It is not the function of this Court to try Officer Johnstone. However his actions have been relevant to my credibility findings and I believe I would be remiss if I failed to express my disapproval of his conduct and the treatment of Mr. Bear in police custody. After Mr. Bear had been a victim of an assault, MD Ambulance was called and it in turn called the Police, to lend assistance in identifying him, and presumably to investigate if appropriate. Once his identity was ascertained he was arrested for an outstanding warrant. He made no complaint about this turn of events and in fact was cooperative. He was intoxicated and the worse for the blows that he suffered to his head from the earlier assault.
Without justification, in my view, the Officer hit him in the face twice with a closed fist. A struggle ensued which continued in the elevator and in the detention booking area. At some point, likely in the elevator, Mr. Bear received a bloody nose and a cut above his eye. His injuries were either not noted or addressed initially and he was charged with assaulting the officer who struck him. There was apparently no disclosure or discussion of the officer's actions or how Mr. Bear came to be injured in police custody. Mr. Bear was then left in a jail cell for some time, without medical attention. When he was escorted to the hospital, it was by the same officer who precipitated the violent incident. He was then called upon to defend himself against the charge of assaulting the peace officer, who at the same time was not called upon to account for his actions.
[20] It is essential in all dealings with the public that a peace officer conduct himself or herself with the utmost professionalism and restraint. While a peace officer's job is extremely difficult, he or she must be held to a high standard of conduct when dealing with persons under his/her control and in custody. That standard must be at least as high as that to which the police and indeed the public would hold other members of the community. Peace officers have a great deal of power and discretion and it is very important that they not abuse or be seen to abuse either. It is essential to upholding confidence in the administration of justice that they be held to a reasonable and appropriate standard of professionalism and responsibility.
[21] In this Court's view, Officer Johnstone did not meet an appropriate standard of responsibility in his dealings with Mr. Bear. He overreacted to a perceived wrongdoing and he struck a vulnerable person in his custody without justification and outside his role as a peace officer. He failed to include facts of his conduct in his report. Even as he testified about his conduct to the Court, he was not candid; he professed that his failure to include this information in his report was an oversight. It was not until his report was drawn to his attention during cross examination, that he accepted responsibility for having inflicted injuries to Mr. Bear in the elevator. He exhibited an attitude toward Mr. Bear's perceived wrongdoing that was out of proportion to and in isolation of his own misconduct.
[22] The Crown has failed to prove the essential elements of assault peace officer and the breach of probation charge was dependant upon a conviction for the assault. Hence as stated above, I find the Defendant not guilty of both charges.

Dated at Saskatoon, Saskatchewan, this 5th day of August, 2003. S. P. Whelan, PCJ