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Closing arguments heard in case of Barrie police officer charged with assault

Tracy McLaughlin

By Tracy McLaughlin, Special to QMI AGENCY

We do not live in a draconian society where police officers can arrest people and use violent force on a whim, a Crown attorney told a court Tuesday.

“This is not a draconian society,” Brenda Cowie said in her closing arguments. “Use of violence (by a police officer) cannot be used carte blanche.”

She was referring to the actions of Barrie police Const. Jason Nevill, who is now at the end of his trial after being charged with a string of offences including illegal arrest, assault causing bodily harm and fabricating evidence.

His alleged victim, 25-year-old Jason Stern, was arrested in a violent episode after his friend broke a Christmas ornament in the hallway of the Bayfield Mall on Nov. 20, 2010.

Stern was facing possible jail time for assaulting a police officer, until his parents hired a private lawyer who subpoenaed the mall for the surveillance video.

In the video, the 250-pound bodybuilder police officer is seen punching Stern, a much smaller man at 170 pounds, in the head and face several times, even while he is handcuffed and bleeding profusely from the head and nose.

In court, Stern testified that he was frightened when he was attacked by the police officer simply because he did not want to give the name of his friend who broke the ornament. He testified he kept yelling, “Stop, I’m a nice guy! Stop, I’m a nice guy!” as he was being punched and at one point he was on the pavement unconscious and came too with the officer still beating on his head with his fists.

Stern suffered several cuts a bruises and a concussion.

But in court, the officer gave a different story. Nevill said that he was arresting Stern for being intoxicated in a public place and that during the arrest Stern kneed him the groin.

But the Crown pointed out there is no groin kick seen on the video, and there is no sign of intoxication in the video, either.

The law states that a police officer can arrest a person if they are so intoxicated that they are a danger to themselves or others.

“But we do not live in a society that criminalizes someone who goes out for five or six beers,” said the Crown, “… or for no other reason that the officer did not get what he wanted.”

The Crown also pointed out Stern was under no legal obligation to provide his friend’s name.

In court, the video was played several times and the Crown pointed to the brutality used when Stern is attacked by the officer outside the mall and then brought down onto the pavement where he landed hard on his head.

Even after Stern is handcuffed behind his back, Nevill can be seen delivering blows to his head. At one point Stern, bleeding and spitting blood, appears “woozy” as he tries to sit up, but he is grabbed by the officer.

“He grabs him, while he is handcuffed, and tosses him several feet and then gets on top of him and strikes him again,” said the Crown.

While the defence called an expert who testified that the use of force was justified, the Crown scoffed at that conclusion.

“Basically, Mr. Nevill just wanted to start a fight, he had no reason to arrest him,” said the Crown, who pointed out Nevill is a Ultimate Fighting Championship (UFC) mixed-martial arts fan. “He started a fight, and he continued the fight.”

She insisted Nevill then “fabricated” his evidence, first by stating in his notes Stern had punched him and later switched to the intoxication defence to “explain his actions on the video.”

Defence lawyer David Butt agreed that the video “is not pretty,” but he insisted Nevill used “reasonable force” because he felt threatened. He noted police officers under stress can suffer from a psychological phenomena called “auditory exclusion” and “tunnel vision” that can cause a police officer to be unable to act objectively.

“At the very least, there is a reasonable doubt,” said the defence, explaining it is not up to the defence to prove innocence, and the entire onus is on the Crown to prove its case “beyond reasonable doubt.”

Butt also insisted the Crown’s case has a “structural weakness,” because the Crown failed to call two key witnesses – two mall security guards who are seen in the video assisting the officer by pinning Stern to the ground while the officer continues to deliver punches.

“These are two key witnesses who did not testify,” Butt said.

But the Crown explained she did not call the security guards because of “credibility issues,” that she was not legally allowed to discuss in court. However, she told the judge the defence could have called the security guards if it wanted to.

The judge is expected to deliver his verdict June 21.

EDITOR'S NOTE: The Examiner does not leave comments open ongoing court cases.

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