Case of officer who pepper-sprayed man raises questions over limits of oversight

Manitoba police watchdog muzzled by ‘reasonable doubt’

https://www.winnipegfreepress.com/local/manitoba-police-watchdog-muzzled-by-...

MANITOBA’S system of civilian oversight of police makes it a “pointless exercise” for the independent watchdog to criminally charge officers against prosecutors’ advice, a justice source says.

In a case that has raised questions about the limits of oversight in the province, the Independent Investigation Unit of Manitoba announced last week it would not lay charges against a Winnipeg Police Service officer who pepper-sprayed a cyclist.

Prosecutors recommended against proceeding with the case, even though the IIU has the power to lay charges if it sees fit.

A justice source familiar with the process said IIU files involving WPS officers are forwarded to a rural senior Crown attorney to decide if the case has a reasonable likelihood of conviction and if prosecuting it is in the public interest.

While the IIU has the ability to lay a charge regardless of the Crown opinion, the case will only end up back in the hands of the same Crown, the source said.

“It’s sort of a pointless exercise because even if (the IIU) says no, we don’t agree with you, we are laying a charge; it’s just going to go back to that Crown to prosecute it and it will just go away,” the source said. “So that’s where they are stuck.

“They have that power legally, but that power means nothing if the Crown’s office isn’t backing them up.”

The Crown would have to provide the IIU reasons why charges were not recommended, but those reasons do not have to be made public, the source said.

“If there is not a reasonable likelihood of conviction, we would have to weigh it: can we prove this beyond a reasonable doubt? If the answer is no, we don’t proceed,” the source said.

WPS Patrol Sgt. Jeffrey Norman was investigated for alleged assault, after an April 12, 2019, incident in which he pepper-sprayed a 29-year-old man who was biking home from work. Norman was investigating car break-ins in the area, and said the cyclist fit the description of a suspect.

In his report, Norman claimed he felt threatened, and said he had to use pepper spray to detain a man who was trying to get away. The cyclist, Thomas Krause, said the officer got angry when asked to turn off his car’s high beams, and pepper-sprayed him when Krause told him he didn’t think Norman had the right to search his backpack.

On Dec. 10, the IIU announced Norman won’t face any charges, following a Crown office review of the case.

A former law professor and federal prosecutor says Manitoba prosecutors followed proper legal standards.

“It would be a little bizarre to get a Crown opinion that there’s no reasonable likelihood of conviction and then lay a charge anyway, in the face of that opinion, knowing that it’s going to go to the Crown and they’ll stay it,” said Bruce MacFarlane, who has taught at University of Manitoba’s law school, worked as a prosecutor, and served in the federal and provincial justice departments.

“It was dealt with the way it should have been dealt with, in my view.”

Police can lay a criminal charge if they have reasonable grounds, meaning enough evidence. The test for Crown prosecutors is a step above: they have to decide there’s a reasonable likelihood of conviction, based on the evidence and the public interest in bringing the case to court.

Unlike in B.C., Quebec and New Brunswick, Manitoba prosecutors don’t screen every case before criminal charges are laid.

Police can ask for a Crown review when they choose, and often do so in cases that involve complex legal questions or suspects who are public figures, MacFarlane said.

“This is not special treatment, because there’s many different types of cases, tough cases, where a Crown opinion is sought first. Many, many — so to leave any impression that police are being given special treatment, it would be false,” he said.

The public typically doesn’t get a glimpse of a Crown review — a portion of the Crown’s opinion was released as part of the IIU’s final report in this case. MacFarlane said the Crown has to consider possible defences when it determines whether there’s a reasonable likelihood of conviction.

In this case, the Crown consulted a use-of-force expert from out of province (whose report hasn’t been publicly released) before prosecutors decided there was “reasonable doubt” Norman’s actions constituted excessive force.

That language raised a red flag for Ian Scott, former head of Ontario’s police watchdog Special Investigations Unit.

“My personal view is that whether or not there’s going to be a doubt or not, it’s kind of irrelevant. That’s really for the judge to decide, not the prosecution service,” Scott said.

It’s up to the prosecution to decide if there’s a reasonable likelihood of conviction, but reasonable doubt about whether a crime occurred needs to be decided by the courts, he said.

“If that’s the standard... the chances that there’s ever going to be a trial of a police officer in circumstances like this is next to nil... When you’re reading a file in an office, there’s always a reasonable doubt,” Scott said.

“The prosecution service is usurping the role of the courts.”

The Free Press requested copies of the Crown’s full opinion on the case, and the use-of-force expert’s report prosecutors consulted, but a spokesperson for Manitoba Justice said the materials are privileged and won’t be released.

katie.may@freepress.mb.ca katie.may@freepress.mb.ca

dean.pritchard@freepress.mb.ca