Police officer to learn ruling on assault charge next month
Defence lawyer argues force corporal used on man in 2018 was justified
Cpl. Colin Magee will have to wait until the new year for a judge’s verdict on whether the officer acted lawfully in tackling a prisoner who refused to drop a pen while inside the Regina Police Service’s holding cells.
The one-day trial wrapped up Wednesday after closing arguments from Crown prosecutor Bill Burge and defence lawyer Aaron Fox. Magee pleaded not guilty to assaulting 42-year-old Lucien Gaudette, who was in custody the night of Sept 25, 2018, for an alleged assault on his ex-wife.
Provincial court Judge Patrick Reis reserved decision to Jan. 16.
Magee, 47, previously received a conditional discharge after he pleaded guilty to assaulting a 13-year-old boy in the cell area. That incident happened one day after the alleged assault on Gaudette.
During Wednesday ’s trial, a security video was played showing the interaction between Magee and Gaudette, who was being released from custody after spending the night in cells. While at a table, Magee began explaining Gaudette’s release conditions and asked for his signature. Becoming increasingly agitated, Gaudette told Magee, “It doesn’t matter anyway,” when asked if he understood the conditions.
Magee then tried to take the pen out of Gaudette’s hand. Gaudette pulled his arm away and behind his back. Magee asked Gaudette twice to drop the pen. When he didn’t, Magee pushed Gaudette and tripped him onto the ground.
In the video, Magee told Gaudette he was not in charge, and that the officer considered the pen a weapon.
“What you do and when you do it is up to us,” Magee said.
During his testimony, Magee said he used force to protect himself. The officer explained he had been attacked by a prisoner with a pen three months earlier. After Gaudette didn’t follow his verbal commands, Magee said he used “soft physical control,” fearing Gaudette would use the pen to do him harm based on the officer’s previous experience.
Gaudette testified he was upset about being cold and having been kept in custody longer than expected. Gaudette said he didn’t drop the pen when he was told to because he was previously told to sign the papers, and that would have “defeated the purpose.”
Gaudette said the incident left a ringing in his head that persists to this day, but Fox, in cross-examination, pointed out the man hadn’t complained of any permanent injury in a previous interview in January.
Burge argued Magee’s use of force was not justified, and that nothing in the video suggested Gaudette planned to assault him.
“Magee didn’t deliver on reasonable grounds that force was being threatened against him,” said Burge in his closing statement.
Burge also argued there was an issue with Magee’s credibility. In his incident report, Magee said Gaudette held the pen at shoulder level. Saying that this was “demonstrably untrue,” Burge suggested Magee knew he was in trouble for what he did.
Magee disagreed, saying he acknowledged the discrepancy but it was not his intent to lie about the incident.
Holding up a printed photo of the instant Gaudette pulled his hand with the pen away from Magee, Fox isolated it as a key moment where Magee had to make a quick decision. In that instant, Fox argued Magee had to use his own subjective judgment. Fox said the fact that Gaudette didn’t verbally threaten Magee didn’t lessen his potential danger in that moment.
“Bad guys don’t say, ‘I’m going to stab you.’ They just go ahead and do it,” said Fox. “All Mr. Gaudette had to do was drop the pen.”
Fox argued the level of force used by Magee was objectively reasonable and urged Reis to acquit.
Burge asked the judge not to dwell on a freeze-frame from a video. He argued it could not be objectively stated that Gaudette posed a threat to Magee, even if Magee had prior experience of an attack with a pen.
“If the test is objective, that rules out personal paranoia he might have,” said Burge.
Magee also faced an assault charge in 2016 that was sent to mediation. The charge was withdrawn after mediation was successfully completed. None of Magee’s previous assault charges were brought up during the trial.