Sure. It just seems very dated and rather on the low end for what normally gets discussed here. I suspect if this officer were not in the news for the Belleville shooting this wouldn’t have merited mention; I’m curious therefore what your motivation is in this particular post. His past actions in no way detract from his heroism during the attack.
Police Folk Allegedly Behaving Badly
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I think we agree more than we disagree.
That a 2019 incident is only being addressed now speaks to an oft bemoaned topic hear, the lengthy delays in police discipline.
This would also not be appropriate to discuss in the main thread covering his remarkable work in taking down the shooter outside the Belleville synagogue.
But with fame and attention comes interest in someone's past. A Toronto lawyer who ran for Parliament got more attention as a NHL Hall of Fame Goaltender than he did on his platform as a candidate.
But I think we begin to disagree on what constitutes "low end". To me, a teenager swiping a bottle of Gatorade from a Lowe's would be low end.
In the case in question, the victim was assaulted, the Crown suggested he was "choked out" by the two officers charged, suffered a broken rib and a broken finger in a Taco Bell after he showed his $33 receipt to the officer and declined to go with the officer - on the allegation that he had accompanied a friend and their teenaged son to a Lowes where that son had allegedly stolen a bottle of Gatorade.
His unlawful arrest and resultant injuries were based on him being an alleged accomplice to an alleged Gatorade thief.
That is suggestive of rather egregious overreach, and not a minor issue.
That a 2019 incident is only being addressed now speaks to an oft bemoaned topic hear, the lengthy delays in police discipline.
This would also not be appropriate to discuss in the main thread covering his remarkable work in taking down the shooter outside the Belleville synagogue.
But with fame and attention comes interest in someone's past. A Toronto lawyer who ran for Parliament got more attention as a NHL Hall of Fame Goaltender than he did on his platform as a candidate.
But I think we begin to disagree on what constitutes "low end". To me, a teenager swiping a bottle of Gatorade from a Lowe's would be low end.
In the case in question, the victim was assaulted, the Crown suggested he was "choked out" by the two officers charged, suffered a broken rib and a broken finger in a Taco Bell after he showed his $33 receipt to the officer and declined to go with the officer - on the allegation that he had accompanied a friend and their teenaged son to a Lowes where that son had allegedly stolen a bottle of Gatorade.
His unlawful arrest and resultant injuries were based on him being an alleged accomplice to an alleged Gatorade thief.
That is suggestive of rather egregious overreach, and not a minor issue.
Haggis
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The hearing was scheduled for five days ago and there are no updates on the web page. This may not be concluded.
I take it your understanding of the course of events comes from reading stories but not the actual decision? This one had a lot more nuance than the way you write it suggests.
In a nutshell- a separate off duty officer (Fyke, who was co-accused and acquitted) was in Lowe’s, overheard staff talking about a theft of a drink that they believed had just happened, and he spoke with the staff. He formed a belief (which the trial found to be insufficiently grounded) that all three individuals were parties to a theft. He followed them outside, co to Jed to observe, and followed them to the Taco Bell where the eventual arrest happened. On the way he called dispatch, and on duty officers attended. The on duty officers, including Smith, spoke with Fyke, took his account at face value, went inside and proceeded to arrest all three, while Fyke, still off duty, stayed outside. The first two went cooperatively, and two of the three officers left with two of the three suspects leading Smith inside with the victim. The victim did not cooperate with Smith’s arrest, leading to the use of force. Fyke, looking in from outside, ran inside, formed the belief that the victim was resisting a lawful arrest (that he had effectively directed) and he joined in to assist Smith. In an odd twist, the judge found that Fyke at that point was reasonable in believing Smith was lawfully arresting the victim, and Smith was therefore authorized to use force to assist.
So- Fyke got out over his skis, and told the three on duty officers that there were grounds to arrest the three for theft. The three on duty officers took the off duty witness officer at face value; that’s difficult to fault- in fact I remember you and I having a conversation earlier in the year about when I witnessed a distraction theft off duty, called it in, and responding officers located and arrested suspects nearby based on my description. You had kind things to say. There have been several other times where I’ve witnessed a crime off duty, and responding officers have made a lawful arrest based on my observations, with charges and convictions resulting. We do the same thing based on civilian reports all the time. So it’s not weird that responding officers took that at face value and acted accordingly.
The court found that Fyke’s assessment was subjectively reasonable, but not objectively reasonable. That made the belief of the on duty officers that an offence had been committed unreasonable and therefore the arrest unlawful. That meant Smith could not rely on the s. 25 authority to use force in the lawful execution of duties. Smith was consequently convicted of assault based on his use of force in that arrest- effectively, because he believed Fyke and trusted his judgment. This could easily happen to any officer making an arrest based on what another officers tells them happened.
The court specifically did not find that Smith caused any injuries, and it did not find that the victim was choked out. The broken rib was not attributed to police use of force; the judge found that paramedics didn’t locate that injury; in might have happened in the course of the victim being given Heimlichs or chest compressions after he was found to be probably choking.
The sentencing decision at paras 41-42 is also very informative: https://www.canlii.org/en/on/onsc/doc/2024/2024onsc3808/2024onsc3808.html
“[41] This also goes to Mr. Smith’s moral blameworthiness. He honestly believed he had grounds to arrest Mr. Baptiste. He was relying on the stated grounds of a colleague who had more experience than him. There was also another more senior officer present who did not take any issue with the arrest; indeed, she participated in it.
[42] In my decision, I recounted the evidence of Mr. Smith and Constable McAuley about what was said to Mr. Baptiste about the police investigation before the formal arrest was initiated. The arrest itself was unlawful because the necessary objective grounds were absent, but Mr. Smith was acting in good faith. He proceeded with the arrest in graduated steps – explaining his grounds to Mr. Baptiste; asking for his cooperation; when it was not forthcoming, placing his hands on Mr. Baptiste; and it was only when Mr. Baptiste became actively resistant, that more force was used by him. Mr. Smith was not acting out of anger or due to a loss of control. His objective was, I find, to complete the arrest without injuring or otherwise harming Mr. Baptiste. And, to repeat, had I found that s. 25 applied to his use of force that night, it was not disproportionate, unreasonable or excessive.”
So, some food for thought with regards to how we might characterize constable Smith’s conduct leading to his conviction. It’s tough to read the trial decision and think there’s no way that could happen to me. I’ve definitely relied and acted upon what other officers have told me on numerous occasions.
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Cst Fyke's testimony was "[47] ... He thought that some of their actions were suspicious, but he did not see any of them steal anything."
Arresting three people for the alleged theft of a single drink would appear to be significant overreach on the party of Belleville Police, though. Is the theft of an item that retail for under $2 justification for such an action? "[70] ... Constable Smith believed that he had reasonable and probable grounds to arrest all three for theft of the drink."
[71] In cross-examination, he agreed that Constable Fyke did not specifically state that he had reasonable and probable grounds for arrest nor did he use the phrase “reasonable grounds”. However, Constable Smith claimed that, shortly before entering the Taco Bell, he said to Constable Fyke “So, at a minimum we have theft of the drink, maybe more”, and Constable Fyke replied “Yes”.
[72] He agreed that Constable Fyke did not tell him that Mr. Baptiste took the drink, consumed it, or discarded it. However, because all three were together when the theft happened, Constable Smith considered Mr. Baptiste to be a party to the offence. He explained that if two or more people are believed to be involved in a theft, their exact roles may not be known but they can be arrested and investigated for it.
Was their response proportionate to what they had seen? Was it proportionate to what they were told? Is the alleged theft of a $2 bottle of energy drink sufficient grounds to call in multiple units to arrest three people?
Arresting three people for the alleged theft of a single drink would appear to be significant overreach on the party of Belleville Police, though. Is the theft of an item that retail for under $2 justification for such an action? "[70] ... Constable Smith believed that he had reasonable and probable grounds to arrest all three for theft of the drink."
[71] In cross-examination, he agreed that Constable Fyke did not specifically state that he had reasonable and probable grounds for arrest nor did he use the phrase “reasonable grounds”. However, Constable Smith claimed that, shortly before entering the Taco Bell, he said to Constable Fyke “So, at a minimum we have theft of the drink, maybe more”, and Constable Fyke replied “Yes”.
[72] He agreed that Constable Fyke did not tell him that Mr. Baptiste took the drink, consumed it, or discarded it. However, because all three were together when the theft happened, Constable Smith considered Mr. Baptiste to be a party to the offence. He explained that if two or more people are believed to be involved in a theft, their exact roles may not be known but they can be arrested and investigated for it.
Was their response proportionate to what they had seen? Was it proportionate to what they were told? Is the alleged theft of a $2 bottle of energy drink sufficient grounds to call in multiple units to arrest three people?
daftandbarmy
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Sigh...
A year before the charges against Todd Joseph Irving in connection with the 1988 death of Byron Carr were withdrawn, details of the police investigation — including how hundreds of DNA samples were obtained, some without consent — were heard in a Charlottetown courtroom.
Carr, a 36-year-old high school teacher, was found dead in his home in 1988. He’d been strangled with a towel, then stabbed with a knife after his death. The words “I will kill again” were scrawled on the wall.
The case went cold until 2024 when police announced that Irving had been arrested and charged with first-degree murder and interfering with human remains. Those charges were withdrawn after it was revealed that Charlottetown police lost substantial key evidence in the case, including the towel and knife and — according to court documents — the drywall taken from Carr's bedroom where the words "I will kill again" were written.
Police collected hundreds of DNA samples, some without consent, in search for Byron Carr’s killer
Collecting items abandoned in trash for comparative DNA is constitutionally sound, court rules
A year before the charges against Todd Joseph Irving in connection with the 1988 death of Byron Carr were withdrawn, details of the police investigation — including how hundreds of DNA samples were obtained, some without consent — were heard in a Charlottetown courtroom.
Carr, a 36-year-old high school teacher, was found dead in his home in 1988. He’d been strangled with a towel, then stabbed with a knife after his death. The words “I will kill again” were scrawled on the wall.
The case went cold until 2024 when police announced that Irving had been arrested and charged with first-degree murder and interfering with human remains. Those charges were withdrawn after it was revealed that Charlottetown police lost substantial key evidence in the case, including the towel and knife and — according to court documents — the drywall taken from Carr's bedroom where the words "I will kill again" were written.
I’m not defending Fyke’s decision making and judgment; it was quite bad. Unfortunately, his on duty colleagues trusted him and took him at face value, which is generally reasonable to do and which happens all the time when officers arrive to something in progress. What I’m doing is adding context to Smith’s actions that comes through clearly in the trial and sentencing decisions but not in the media reporting. The court acknowledged Smith’s good faith, but the law as it is gave the judge no leeway to acquit. The judge’s belief in his good faith intentions was reflected in the written decisions, and in the ultimate sentence to a conditional discharge. The judge specifically said that had Fyke’s belief been well founded enough to make Smith’s arrest lawful, the force used would have been reasonable.
Unfortunately, Fyke fucked up, several officers (including one more senior than Smith) acted in good faith on that bad call, and of the three arrests, Smith’s went badly and he ended up charged.
Speaking somewhat more generally but in response to para 71- when we arrive on a scene, we aren’t convening a meeting where we resort to formalized language and a careful and critical assessment of what officers already present tell us. We aren’t going to greet officers with “I have reasonable grounds to believe these three committed the indictable offence of theft, and therefore I direct you to arrest them without warrant pursuant to s. 495 of the Criminal Code”. It’s gonna be “What have we got?” “These three are arrestable for theft; I was at Lowe’s when the staff saw them shoplifting”. “OK, got it.” Something like that. We understand what others mean. Pretty much anyone on the job would understand the whole “at a minimum, these three for theft” bit as communicating a reasonable belief that grounds exist for a warrantless arrest. Like most professions, we have our own ways of communicating, and a lot of things are easily and immediately understood based on a few short words and the general context.
I’ll be curious to see how the police conduct decision goes. I could easily see Fyke fairing worse than Smith as he was the one whose judgment and decision making were actually egregiously wrong in that situation.
So, stepping back from this specific situation because Fyke did not have objectively reasonable grounds to believe, and speaking about petty theft more generally:
Parliament has not set a hard floor of value below which theft is not criminal. Theft is theft, however nominal theft value or how wealthy the victim. Theft is always going to be arrestable. In fact, the public has demanded that shoplifting and retail theft be taken more seriously, and that store staff and security be more empowered and protected in combating it. The power for a non-peace officer to arrest a shoplifter has been reaffirmed. Generally, the public tends to show a lot of frustration when police don’t take petty theft seriously. But then when we do arrest and charge, others think we’re too heavy handed.
How many members get sent to a call will always depend on how it triaged against what else is sitting in the patrol queue, and the degree of risk. If members are tied up at something more serious, lucky day for the shoplifter. But if there are units free and someone has kept continuity on a suspect, why not attend, investigate to the degree necessary, and, if grounds exist, arrest? Bear in mind an arrest is just that; it doesn’t mean a charge. But it does serve to identify the suspect(s), and a lot of times, minor criminality, promptly acted upon, reveals more significant crimes, or breaches of bail, probation, etc.
But in the eye of the public, it’s damned if we do, damned if we don’t, because the public is very disparately factionalized with regards to what kind of policing they want to see. It is what it is.
Just a bit on DNA evidence: cast off (discarded cups, cans, cigarette butts etc) have always been fair game. Hell, we literally train on surveillance courses for grabbing them when there’s an opportunity and it’s requested by the investigative team.
When DNA is collected from a crime scene, it gets compared to the known offender DNA databank - that being people convicted of crimes who have been ordered to submit a sample, and the Crime Scene Index DNA databank - that being DNA taken from previous crime scenes so for instance you can see if the same DNA profile shows up at multiple unsolved sex assaults.
A lot of the time, DNA collected from a crime scene doesn’t result in a hit. It gets entered into the crime scene index databank, and sometimes years later a hit pops up. But in the meantime, nothing stops police from collecting castoff DNA to compare to the samples from the offence under investigation. The courts have endorsed that. Such DNA isn’t retained outside of the investigation and isn’t run against other databanks.
If there’s a potential DNA match, we then have to go to court, show our work, and get a warrant to detain the now suspect and obtain a proper DNA sample that would be admissible evidence for prosecution. We won’t prosecute based off coffee cup or cigarette DNA; we’ll use those to get a warrant for a hair pluck, or a finger prick for blood. That then becomes usable to prosecute.
So, just a tidbit on that.
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I think this whole rational discourse thing risks getting you kicked off the internet
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For those who worry about all the news articles about bad law enforcement, don't worry about it, start worrying when this behavior isn't newsworthy.
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