Post by Fire Davidson on Nov 5, 2007 19:40:50 GMT -3
Police face lawsuit after man assaulted, sprayed
Posted By Denis St. Pierre
Posted 2 days ago
A man whose claim of improper police treatment appears to be supported by an earlier court ruling is suing the Greater Sudbury Police Service and several of its officers for $1 million.
Albert Despatie, 28, has filed his lawsuit in the Superior Court of Justice, claiming he was wrongly arrested, assaulted, pepper-sprayed, charged and detained by police in the spring of 2004.
Despatie's claims appear to be bolstered by the extraordinary decision of a judge who dismissed all criminal charges against him following a three-day trial in 2005. In the process, the judge discredited and dismissed large portions of evidence from police officers and other prosecution witnesses.
Details of Despatie's lawsuit and his previous criminal prosecution are being reported for the first time, after court records were obtained by The Star this week.
Those records include an extraordinary, 31-page decision issued Nov. 25, 2005, by Justice John D. Keast of the Ontario Court of Justice. Keast not only dismissed all criminal charges against Despatie, he excoriated police and other Crown witnesses in a manner rarely seen in such court proceedings.
Many of Keast's findings have since found their way into the $1-million civil lawsuit filed by Despatie earlier this year in Toronto.
The Greater Sudbury Police Service and the officers cited in the lawsuit filed a statement of defence with the court in September. As a result, the case has yet to come to trial and none of the allegations have been proved in court.
Despatie, a diamond driller with no criminal record, whose father was a Sudbury police officer, says in his statement of claim that he was an unsuspecting bystander in a Sudbury hotel bar on the night of April 25, 2004. It was near closing time, he says, when he was confronted by two strangers - an off-duty police officer and the officer's friend - and forced to defend himself against their threats of violence.
In return for his actions of self-defence, Despatie says in his lawsuit, several police officers were called to the hotel and he was struck several times, pepper-sprayed, then inappropriately arrested, charged and jailed.
While the civil lawsuit has yet to be contested, Despatie's claims certainly appear to have been accepted by Justice Keast during his criminal prosecution in 2005.
Conversely, the statement of defence filed by the police service and its officers for the pending civil suit appears to rely largely on arguments that were rejected by Justice Keast during the criminal proceedings.
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Contradicting the criminal court judge's earlier ruling, the police defendants argue Despatie committed assault and resisted arrest and therefore he was legitimately and appropriately arrested, charged and detained.
"At all material times, these defendants or any of them and other involved police officers acted on reasonable grounds in doing what they were required or authorized to do and they used as much force as was necessary and no more than was necessary or reasonably necessary," the statement of defence says.
"At all material times, these defendants and any other involved police officers acted in good faith and without malice and exercised their authority properly within the course and scope of their duties and without abuse of their position and offices."
Police officials were not available late Friday afternoon to comment on either the lawsuit or the earlier criminal proceedings and scathing decision from the judge.
Even an objective review of the judge's 2005 decision indicates the defendants in Despatie's civil suit could have their work cut out for them if the case comes to trial, assuming the decision is accepted as evidence.
Despatie, who was 25 at the time, unwittingly became embroiled in the barroom violence of April 25, 2004, Justice Keast concluded. He had never met off-duty police officer Jason Gagne, nor Gagne's longtime friend Robert Brouse, who also were patrons of the bar that night, the judge noted.
Near closing time, Brouse got into a fight with another bar patron. When a bouncer eventually pulled him from the fray, Brouse was sent backwards and bumped into the unsuspecting Despatie, causing Despatie to drop his beer to the floor.
The evidence shows Despatie told Brouse to "relax." Rather than heed that advice, however, Brouse made to strike Despatie, who at the time was a fit, 6-feet-5 inches tall and weighed 235 pounds, the judge said.
Despatie then punched Brouse once, "in legitimate self-defence," sending the latter to the floor, the judge said.
That confrontation prompted Gagne, the off-duty police officer, to come after Despatie.
"Gagne charges after Despatie with his fists and arms up as if to strike him. Despatie strikes out with a single blow to Gagne in order to ward off the anticipated risk from Gagne. This was done in self-defence."
Following those two confrontations, on-duty police officers were called to the bar. One civilian witness testified that Gagne used his cellphone to call police, while Gagne testified that he did no such thing.
In any event, at least six city police officers, including two members of the tactical unit, arrived at the hotel within minutes.
Although Despatie was calm and co-operative when police arrived, he soon was pepper-sprayed, struck several times by at least two officers - before and after he was handcuffed - then led off to jail, the judge said.
When the case came to trial, police officers alleged they were required to use such force because Despatie suddenly had become unco-operative and resisted arrest at the hotel.
The judge rejected the police version of events, citing several instances of unreliable and conflicting evidence, discrepancies, inconsistencies and simply unacceptable testimony from officers.
Two of the first on-duty officers to approach Despatie that night were Const. Robert Rheaume and Const. Gordon Goddard.
The two officers were the recipients of the most scathing indictments from Justice Keast.
There were important "discrepancies" between the evidence of Rheaume and Goddard, "wherein their evidence conflicts with each other," the judge said.
The two officers provided conflicting evidence regarding when Despatie allegedly began to resist arrest, where the alleged resistance occurred, as well as where and when the police administered blows to Despatie in response to his alleged resistance.
Ultimately, the judge concluded, Despatie did not resist, but was repeatedly struck and pepper-sprayed by police seeking "retribution" for a perceived assault on a comrade.
"Const. Goddard provided contradictory evidence" with regard to his actions in striking and pepper-spraying Despatie, the judge said.
In his court testimony, Goddard "said he injured his wrist in a blow to the rib area of Despatie before the pepper spray was deployed," the judge said, underlining the word 'before.'
However, that contradicted the notes Goddard made at the time of the incident, the judge noted.
"In his notebook he says he may have injured the wrist after the pepper spray was deployed," the judge stated, placing emphasis on the word 'after.'
"Once this note was put to him in cross-examination, (Goddard) started to backtrack on the lack of resisting by Despatie after the pepper spray. His answers became confusing. He said he had to physically take Despatie's arm and put it behind his back and put it into the cuffs. He implies that this required sufficient force that would have injured his wrist. I don't accept this explanation. He could not have injured his wrist in the fashion he describes. This is yet another lame explanation."
The judge noted the testimony of a civilian witness who said that after Despatie had been handcuffed and was being led away by police, one of the officers "delivered a hard blow to the rib area" of Despatie, "for no apparent reason."
Given that Goddard indicated in his notes that he injured his wrist "after the deployment of the pepper spray, it is probable Goddard delivered the blow (to Despatie's ribs). That's how he injured his wrist."
The judge said he accepted Despatie's evidence that, "Goddard started kicking and punching him" without provocation.
As a result, Despatie had to "ward off the offensive blows of Goddard," Keast said.
"I do not accept the evidence of Rheaume and Goddard. I do accept the evidence of Despatie."
Throughout the trial, the judge said, "Despatie was a credible and reliable witness."
Despatie's version of events, supported by other testimony, "makes logical sense," he said.
Even after he was "vigourously pressed in a lengthy cross-examination," there was "no reason to disbelieve Despatie," the judge said.
The judge also bluntly denounced the conduct of another officer, Const. Stephen Hotson, for striking Despatie as he was being led out of the hotel.
"Hotson wanted to be the first to go through the doors and didn't want the officers and Despatie to go through the doors before him," the judge said. "So what does Hotson do? Despatie was stooped over as he was walking forward and Hotson hit Despatie on the top of the head with the back of his elbow ... to slow Despatie down. There was no justification for this blow to Despatie's head. Hotson knew Despatie had been pepper-sprayed. He knew he was completely under the control of police. It was the police officers moving Despatie along at their pace."
The judge characterized the scene as "an atmosphere of retribution towards Despatie, as manifest by the actions of Const. Rheaume and Const. Goddard and as well, Const. Hotson."
The judge also rejected much of the evidence of civilian witnesses called by the prosecution, including two women who were at the bar with Gagne and Brouse.
Much of the evidence of civilian witnesses who supported the police position was "confusing, inconsistent and contradictory" and "not internally logical," Keast said.
Nor did this evidence stand up to cross-examination, he said, also noting that the civilian witnesses had revised their evidence a few days before the trial began - about a year after the incidents occurred.
"Time after time, defence counsel took them down a road in cross-examination that led to a dead end. They had nowhere to go and it was obvious they were making it up as they went along," the judge said.
Two of the civilian witnesses "were prepared to say almost anything to support Brouse," he said.
Not even the Crown prosecutor escaped censure in the judge's decision. In fact, the judge suggested certain actions of the assistant Crown attorney "tended to bring the administration of justice into disrepute."
During the trial the Crown prosecutor cast doubt on the propriety and motivation for a decision by Acting Staff Sgt. Rudy Anders, the judge said.
When Despatie was taken into custody, the arresting officers insisted that he be kept jailed until he could appear in court for a bail hearing, the judge noted.
However, when Anders came on duty some time later as the desk officer, he decided to release Despatie on his own recognizance, which was the appropriate decision, the judge said.
Nevertheless, while cross-examining Despatie during the trial, the Crown prosecutor called Anders' motives into question, suggesting he released Despatie because his father was a police officer, Keast said.
"The implication was now clear - Acting Staff Sgt. Anders released Despatie because of the relationship between Anders and the father of Despatie," the judge said.
"This line of questioning is not simply an attack on the credibility of Despatie, but goes further than that, by impugning the integrity of Sgt. Anders. It is an extremely serious allegation to suggest a police officer released someone from custody because of the nature of the relationship between the accused and the father of the accused. Such an allegation should only be made with great care, otherwise the public is left wondering about the propriety of the actions of a police officer.
"It is most unusual for a prosecutor by implication to openly criticized another police officer," Keast added.
"I want to make it clear - Acting Staff Sgt. Anders did nothing wrong. His release of Despatie was appropriate."
dstpierre@thesudburystar.com
"Time after time, defence counsel took them down a road in cross-examination that led to a dead end. They had nowhere to go and it was obvious they were making it up as they went along."
Posted By Denis St. Pierre
Posted 2 days ago
A man whose claim of improper police treatment appears to be supported by an earlier court ruling is suing the Greater Sudbury Police Service and several of its officers for $1 million.
Albert Despatie, 28, has filed his lawsuit in the Superior Court of Justice, claiming he was wrongly arrested, assaulted, pepper-sprayed, charged and detained by police in the spring of 2004.
Despatie's claims appear to be bolstered by the extraordinary decision of a judge who dismissed all criminal charges against him following a three-day trial in 2005. In the process, the judge discredited and dismissed large portions of evidence from police officers and other prosecution witnesses.
Details of Despatie's lawsuit and his previous criminal prosecution are being reported for the first time, after court records were obtained by The Star this week.
Those records include an extraordinary, 31-page decision issued Nov. 25, 2005, by Justice John D. Keast of the Ontario Court of Justice. Keast not only dismissed all criminal charges against Despatie, he excoriated police and other Crown witnesses in a manner rarely seen in such court proceedings.
Many of Keast's findings have since found their way into the $1-million civil lawsuit filed by Despatie earlier this year in Toronto.
The Greater Sudbury Police Service and the officers cited in the lawsuit filed a statement of defence with the court in September. As a result, the case has yet to come to trial and none of the allegations have been proved in court.
Despatie, a diamond driller with no criminal record, whose father was a Sudbury police officer, says in his statement of claim that he was an unsuspecting bystander in a Sudbury hotel bar on the night of April 25, 2004. It was near closing time, he says, when he was confronted by two strangers - an off-duty police officer and the officer's friend - and forced to defend himself against their threats of violence.
In return for his actions of self-defence, Despatie says in his lawsuit, several police officers were called to the hotel and he was struck several times, pepper-sprayed, then inappropriately arrested, charged and jailed.
While the civil lawsuit has yet to be contested, Despatie's claims certainly appear to have been accepted by Justice Keast during his criminal prosecution in 2005.
Conversely, the statement of defence filed by the police service and its officers for the pending civil suit appears to rely largely on arguments that were rejected by Justice Keast during the criminal proceedings.
Advertisement
Contradicting the criminal court judge's earlier ruling, the police defendants argue Despatie committed assault and resisted arrest and therefore he was legitimately and appropriately arrested, charged and detained.
"At all material times, these defendants or any of them and other involved police officers acted on reasonable grounds in doing what they were required or authorized to do and they used as much force as was necessary and no more than was necessary or reasonably necessary," the statement of defence says.
"At all material times, these defendants and any other involved police officers acted in good faith and without malice and exercised their authority properly within the course and scope of their duties and without abuse of their position and offices."
Police officials were not available late Friday afternoon to comment on either the lawsuit or the earlier criminal proceedings and scathing decision from the judge.
Even an objective review of the judge's 2005 decision indicates the defendants in Despatie's civil suit could have their work cut out for them if the case comes to trial, assuming the decision is accepted as evidence.
Despatie, who was 25 at the time, unwittingly became embroiled in the barroom violence of April 25, 2004, Justice Keast concluded. He had never met off-duty police officer Jason Gagne, nor Gagne's longtime friend Robert Brouse, who also were patrons of the bar that night, the judge noted.
Near closing time, Brouse got into a fight with another bar patron. When a bouncer eventually pulled him from the fray, Brouse was sent backwards and bumped into the unsuspecting Despatie, causing Despatie to drop his beer to the floor.
The evidence shows Despatie told Brouse to "relax." Rather than heed that advice, however, Brouse made to strike Despatie, who at the time was a fit, 6-feet-5 inches tall and weighed 235 pounds, the judge said.
Despatie then punched Brouse once, "in legitimate self-defence," sending the latter to the floor, the judge said.
That confrontation prompted Gagne, the off-duty police officer, to come after Despatie.
"Gagne charges after Despatie with his fists and arms up as if to strike him. Despatie strikes out with a single blow to Gagne in order to ward off the anticipated risk from Gagne. This was done in self-defence."
Following those two confrontations, on-duty police officers were called to the bar. One civilian witness testified that Gagne used his cellphone to call police, while Gagne testified that he did no such thing.
In any event, at least six city police officers, including two members of the tactical unit, arrived at the hotel within minutes.
Although Despatie was calm and co-operative when police arrived, he soon was pepper-sprayed, struck several times by at least two officers - before and after he was handcuffed - then led off to jail, the judge said.
When the case came to trial, police officers alleged they were required to use such force because Despatie suddenly had become unco-operative and resisted arrest at the hotel.
The judge rejected the police version of events, citing several instances of unreliable and conflicting evidence, discrepancies, inconsistencies and simply unacceptable testimony from officers.
Two of the first on-duty officers to approach Despatie that night were Const. Robert Rheaume and Const. Gordon Goddard.
The two officers were the recipients of the most scathing indictments from Justice Keast.
There were important "discrepancies" between the evidence of Rheaume and Goddard, "wherein their evidence conflicts with each other," the judge said.
The two officers provided conflicting evidence regarding when Despatie allegedly began to resist arrest, where the alleged resistance occurred, as well as where and when the police administered blows to Despatie in response to his alleged resistance.
Ultimately, the judge concluded, Despatie did not resist, but was repeatedly struck and pepper-sprayed by police seeking "retribution" for a perceived assault on a comrade.
"Const. Goddard provided contradictory evidence" with regard to his actions in striking and pepper-spraying Despatie, the judge said.
In his court testimony, Goddard "said he injured his wrist in a blow to the rib area of Despatie before the pepper spray was deployed," the judge said, underlining the word 'before.'
However, that contradicted the notes Goddard made at the time of the incident, the judge noted.
"In his notebook he says he may have injured the wrist after the pepper spray was deployed," the judge stated, placing emphasis on the word 'after.'
"Once this note was put to him in cross-examination, (Goddard) started to backtrack on the lack of resisting by Despatie after the pepper spray. His answers became confusing. He said he had to physically take Despatie's arm and put it behind his back and put it into the cuffs. He implies that this required sufficient force that would have injured his wrist. I don't accept this explanation. He could not have injured his wrist in the fashion he describes. This is yet another lame explanation."
The judge noted the testimony of a civilian witness who said that after Despatie had been handcuffed and was being led away by police, one of the officers "delivered a hard blow to the rib area" of Despatie, "for no apparent reason."
Given that Goddard indicated in his notes that he injured his wrist "after the deployment of the pepper spray, it is probable Goddard delivered the blow (to Despatie's ribs). That's how he injured his wrist."
The judge said he accepted Despatie's evidence that, "Goddard started kicking and punching him" without provocation.
As a result, Despatie had to "ward off the offensive blows of Goddard," Keast said.
"I do not accept the evidence of Rheaume and Goddard. I do accept the evidence of Despatie."
Throughout the trial, the judge said, "Despatie was a credible and reliable witness."
Despatie's version of events, supported by other testimony, "makes logical sense," he said.
Even after he was "vigourously pressed in a lengthy cross-examination," there was "no reason to disbelieve Despatie," the judge said.
The judge also bluntly denounced the conduct of another officer, Const. Stephen Hotson, for striking Despatie as he was being led out of the hotel.
"Hotson wanted to be the first to go through the doors and didn't want the officers and Despatie to go through the doors before him," the judge said. "So what does Hotson do? Despatie was stooped over as he was walking forward and Hotson hit Despatie on the top of the head with the back of his elbow ... to slow Despatie down. There was no justification for this blow to Despatie's head. Hotson knew Despatie had been pepper-sprayed. He knew he was completely under the control of police. It was the police officers moving Despatie along at their pace."
The judge characterized the scene as "an atmosphere of retribution towards Despatie, as manifest by the actions of Const. Rheaume and Const. Goddard and as well, Const. Hotson."
The judge also rejected much of the evidence of civilian witnesses called by the prosecution, including two women who were at the bar with Gagne and Brouse.
Much of the evidence of civilian witnesses who supported the police position was "confusing, inconsistent and contradictory" and "not internally logical," Keast said.
Nor did this evidence stand up to cross-examination, he said, also noting that the civilian witnesses had revised their evidence a few days before the trial began - about a year after the incidents occurred.
"Time after time, defence counsel took them down a road in cross-examination that led to a dead end. They had nowhere to go and it was obvious they were making it up as they went along," the judge said.
Two of the civilian witnesses "were prepared to say almost anything to support Brouse," he said.
Not even the Crown prosecutor escaped censure in the judge's decision. In fact, the judge suggested certain actions of the assistant Crown attorney "tended to bring the administration of justice into disrepute."
During the trial the Crown prosecutor cast doubt on the propriety and motivation for a decision by Acting Staff Sgt. Rudy Anders, the judge said.
When Despatie was taken into custody, the arresting officers insisted that he be kept jailed until he could appear in court for a bail hearing, the judge noted.
However, when Anders came on duty some time later as the desk officer, he decided to release Despatie on his own recognizance, which was the appropriate decision, the judge said.
Nevertheless, while cross-examining Despatie during the trial, the Crown prosecutor called Anders' motives into question, suggesting he released Despatie because his father was a police officer, Keast said.
"The implication was now clear - Acting Staff Sgt. Anders released Despatie because of the relationship between Anders and the father of Despatie," the judge said.
"This line of questioning is not simply an attack on the credibility of Despatie, but goes further than that, by impugning the integrity of Sgt. Anders. It is an extremely serious allegation to suggest a police officer released someone from custody because of the nature of the relationship between the accused and the father of the accused. Such an allegation should only be made with great care, otherwise the public is left wondering about the propriety of the actions of a police officer.
"It is most unusual for a prosecutor by implication to openly criticized another police officer," Keast added.
"I want to make it clear - Acting Staff Sgt. Anders did nothing wrong. His release of Despatie was appropriate."
dstpierre@thesudburystar.com
"Time after time, defence counsel took them down a road in cross-examination that led to a dead end. They had nowhere to go and it was obvious they were making it up as they went along."
