No appeal of city police assault acquittal

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This article was published 07/06/2022 (933 days ago), so information in it may no longer be current.

Prosecutors have decided not to appeal the acquittal of a Winnipeg Police Service officer who was accused of assaulting a man during an off-duty incident five years ago.

Following a trial, provincial court Judge Sidney Lerner said key decisions by the Crown attorney left him with reasonable doubt about what happened that night, and he had no choice but to acquit patrol Sgt. Sean Cassidy.

The Manitoba Prosecution Service had until Wednesday to pursue an appeal of the May 9 decision, which has raised questions about the Crown’s handling of the case and how police officers are prosecuted in Manitoba.

“After careful consideration of the matter by senior justice counsel, and the available grounds for appeal at law, the Crown will not be appealing the decision of the Honourable Judge S. Lerner,” a spokesperson for the province wrote in an email to the Free Press.

Cassidy’s lawyer, Lisa LaBossiere, said the prosecution service has experienced appeal Crowns “who review these matters pursuant to their own internal process and policies.”

“It would be inappropriate for me, or anyone for that matter, to comment without access to all of the relevant information,” she wrote in an email.

Karl Gowenlock, a lawyer for complainant Jamie Cote, declined to comment.

Cote alleged he was assaulted by Cassidy in the early hours of March 28, 2017.

During a trial last year, Cote said he and his roommate went to La Salle, just south of Winnipeg, to drop off flyers for his city-based landscaping business.

Cassidy said he became suspicious after seeing Cote’s truck while returning home from work in his personal vehicle, as there had been break-ins in the area.

The chance encounter led to a pursuit on the Perimeter Highway, with Cote claiming he was chased by Cassidy, and Cassidy alleging he was pursued by Cote.

After Cassidy called 911, a marked police car was waiting on St. Mary’s Road, as Cote and the off-duty officer drove into the city around 1 a.m.

The assault is alleged to have occurred while Cote was arrested after he pulled over and Cassidy, who was not in uniform, arrived at the scene in his van.

The police officers who responded to the 911 call described “nothing untoward” about the force or techniques used by Cassidy, Lerner noted in his decision.

The judge pointed to the Crown’s decisions to call the officers as witnesses in the case, and to ask the court in a closing submission to accept Cassidy’s version of events about the use of force during the arrest.

Lerner also said he didn’t believe Cassidy’s version of what happened in La Salle and during the Perimeter Highway chase.

The judge was in a “position of uncertainty as to who and what is to be believed in this case,” he said.

Ottawa-based criminal defence attorney Valérie Black St-Laurent, founder and executive director of the Canadian Journal of Law and Justice, said the grounds for an appeal are unreasonable verdict, an error of law, a miscarriage of justice, misapprehension of evidence or if a judge hasn’t given sufficient reasons to justify how they arrived at a verdict.

Some grounds were not available to the Crown based on its own decisions during the trial and the legal test Lerner applied while assessing the contradicting evidence from the complainant and accused, she said.

“Indeed, since the Crown asked the judge to reject part of Cote’s testimony, it would be difficult to appeal based on misapprehension of the evidence, given they were the ones to indicate that part of their evidence should not be considered,” Black St-Laurent wrote Wednesday in an email.

“So while I cannot comment specifically on why the Crown chose not to appeal or if an appeal would have had any success, I can nonetheless say that certain decisions that were made during this trial eliminated possible grounds of appeal.”

Following the 2017 arrest, Cote was released without charge.

In a statement last week, he said he felt the Crown’s case “was set up to fail from the beginning,” while Gowenlock said the prosecutor’s decisions made a conviction impossible.

Cote is proceeding with a lawsuit against Cassidy and the City of Winnipeg. Cassidy and the city have not filed statements of defence.

“Given that the burden of proof threshold is lower is civil matters (assessed on a balance of probabilities) than in criminal matters (assessed beyond a reasonable doubt), Cote may very well be successful,” Black St-Laurent wrote.

In March, Cassidy was acquitted of logging into a police database to fix his own school zone photo-radar speeding ticket, despite a judge finding his defence was “almost implausible.”

chris.kitching@freepress.mb.ca

Twitter: @chriskitching