Cops face new assault trial
Judge ‘misapprehended the medical evidence,’ conviction overturned
A Superior Court Justice has ordered a new trial for two Toronto police officers convicted of assaulting a Cabbagetown man, saying the trial judge “misapprehended the medical evidence.”
Last year, Ontario Court Justice Elliott Allen found Constables Edward Ing and John Cruz guilty of assaulting Richard Moore while arresting him for alleged public intoxication.
At the trial, Moore testified the officers kicked him repeatedly while he was on the ground after stopping him from entering a rooming house on Gerrard St.
The officers told the judge that Moore, then 59, had resisted arrest, there was a struggle and he fell to the ground. They said they brought him under control and handcuffed him, without ever striking him.
Allen accepted Moore’s version and convicted the officers on Jan. 25, 2011. At their sentencing hearing last June, he was highly critical of the “culture which rejects discipline” at downtown 51 Division, suggesting police turn a blind eye to thuggish behaviour by officers that is worthy of a criminal gang. Allen sentenced the officers each to one year house arrest for assault causing bodily harm. They have remained on duty pending appeal. Justice Michael Code heard that appeal Feb. 16. In a 10-page ruling released March 1, Code wrote Moore was “unquestionably” injured during the arrest. “There was a laceration to his head that required stitches and there were two broken ribs,” he wrote. However, the trial judge misapprehended the “real effect of the medical evidence when he stated that, ‘the injuries show Mr. Moore was . . . repeatedly struck’ and that, ‘the injuries by themselves suggest excessive force.’ “The medical evidence, standing alone, was equivocal as to the cause of Moore’s injuries,” Code said. “The broken ribs were equally consistent with a fall as with a beating. In other words, the medical evidence was equally consistent with Ing and Cruz’s account as it was with Moore’s account.” Code said the medical evidence needed to be analyzed together with all the other evidence. “Only then could the totality of the evidence give rise to an inference, beyond reasonable doubt, that Moore had been beaten by the officers. Unfortunately, that is not how the trial judge approached the medical evidence. He took the view that the injuries, on their own, indicated that there had been a beating.”