Two officers cleared of 2017 excessive force charges

Edmonton police officers who took a man to the ground on Whyte Avenue three years ago did not use excessive force, a disciplinary hearing has found.

Thomas Swaffield, 28, says an officer repeatedly kneed him in the head after dropping him to the pavement outside a Mac's convenience store on Aug. 5, 2017.

Swaffield and the two cited officers — Const. Matthew Wagner and Const. Matthew Li — gave widely different accounts of the interaction. Wagner and Li were charged with one count each of unlawful or unnecessary exercise of authority under the Police Act.

Fred Kamins, the retired RCMP officer appointed by the police chief to preside over the hearing, noted “six witnesses testified and six different stories were heard.”

Ultimately, Kamins believed the two officers' testimony that Swaffield punched Wagner and tried to grab his handgun and Taser.

Swaffield is “adamant” he did neither and said he plans to appeal to the Law Enforcement Review Board.

Charges against Swaffield including assaulting and disarming a peace officer were stayed by the Crown on Oct. 25, 2017, said Tom Engel, Swaffield's lawyer.

Swaffield was having drinks with friends just before the incident. Around 1 a.m., he went to buy cigarettes. Outside the Mac's store, he saw three officers speaking to a group of women lined up against a wall. The officers testified they were ticketing the women for public drinking.

Swaffield said he told the officers, “guys, there's a lot of other stuff going on on Whyte Avenue right now.”

One of the officers asked if he was challenging his authority, Swaffield said. Eventually, Swaffield decided the conversation was going nowhere, finished his cigarette, and flicked it to the ground.

As he flicked the cigarette, Swaffield claims one of the officers said “littering,” and Wagner “pounded” him to the ground. Eventually he said three officers were on top of him, one of whom kneed him repeatedly in the face.

Wagner testified he placed a hand on Swaffield because he walked away while being issued a littering ticket. He claimed Swaffield broke free and punched him. He claimed Swaffield then tried to grab his pistol and Taser while they grappled on the ground.

Li testified he saw Swaffield punch Wagner on the mouth, and heard Wagner say Swaffield was going for his gun. Li added he saw Swaffield reach for Wagner's Taser, but Kamins noted Li made no mention of that in his report.

The officers had Swaffield in handcuffs in under two minutes.

Third-party evidence in the case was limited. One of the women who was being ticketed testified she saw Swaffield make a “jerk motion like he was going to swing ” before officers took him to the ground, but did not believe he struck any of the officers.

She heard one of the officers say Swaffield went for his gun, but did not see it herself.

Two surveillance cameras captured parts of the incident but the video is “very imperfect,” Kamins stated. The presenting officer — who acts as prosecutor for the police chief — argued that when it comes to the alleged punch, all that can be concluded from the video is that Swaffield moved his arm in “a circular motion” and an “altercation ensues.”

The presenting officer also argued the video demonstrates that parts of Li and Wagner's testimony were “simply wrong,” including the claim that Swaffield was able to get back to his feet after the initial takedown.

Kamins, however, ultimately found the evidence of the constables more convincing. He said the video demonstrates Wagner did not “sprint” toward Swaffield, as Swaffield testified. He also found there were only three women being ticketed by the officers, not six, as Swaffield said.

Kamins found that although Swaffield denied punching Wagner, both Li and Wagner were consistent in their accounts of the blow, and that the CCTV, the woman and a third officer testified to “actions consistent with the lead up to a punch.” He also found the officers' evidence about the handgun and Taser convincing.

Kamins added Swaffield's injuries — facial swelling, a shoulder injury, PTSD and a possible concussion — were not in and of themselves evidence of excessive force.

Swaffield's appeal argues Kamins' decision was “unreasonable” and that the presenting officer should have called the other women present at the scene to testify.

It also said Kamins found the third officer's evidence credible despite the fact the officer was reprimanded for making a derogatory comment after Swaffield was in custody.