The Hamilton Spectator

Charges are stayed against Indigenous man who was assaulted by police officer

NICOLE O’REILLY

Patrick Tomchuk steps outside Hamilton’s John Sopinka Courthouse into sunshine, surrounded by family and supporters, a free man for the first time in a while.

Once his ankle monitor is removed he can take a bath, go to a sweat ceremony, take his kids wherever they want to go.

In court Monday multiple charges against Tomchuk related to alleged stolen vehicles and resisting arrest were stayed after his lawyer Jenn Steenbeek filed an application arguing his rights and freedoms were violated when he was assaulted during his arrest last year. The arrest, which included a police officer stomping on his head when he was already unconscious, was captured on video leading to swift outcry from the public and Indigenous community leaders.

Charges are often stayed or withdrawn in court, but it is rare for charges to be stayed on Charter application over police brutality.

Acting Crown attorney Eric Taylor said the police action was “so egregious” that the Crown and the court must distance itself. The case must be halted.

“Any type of trial would offend society’s sense of decency and fair play,” he said.

The Crown also conceded to allow the defence to play the videos from Tomchuk’s May 26, 2022 arrest at an Upper Sherman Avenue gas station. The first surveillance video shows part of the interaction, while the second video, taken by a woman from inside her car, shows the full scope of the violence.

Steenbeek called the conduct “police brutality” and a “violent attack.”

It is the “clearest of cases” where a stay should be granted because of a Charter breach, she said, adding the assault led to “widespread outrage.” Staying the charges sends a message to the community that such violence is not condoned.

After the videos were played in court, Ontario Court Justice Lynn Robinson said it “disgusted” her to be part of any process or system that could condone that behaviour.

“As a human being I’m so sorry,” she said, speaking directly to Tomchuk.

Nothing can justify the head stomping, she said, later adding that in all her years working in criminal court since 1991 she has never seen an arrest like that. There is no choice but to stay the charges, she said.

The judge also remarked on the bravery of the woman who took the video.

“I never got a chance to say thank you,” Tomchuk told the court, adding that the woman who took the video and shared it with police has never come forward.

“From my family and the Indigenous community, we really thank her,” he said.

Tomchuk said he still has lasting injuries from the assault, including neck twitching, difficulty sleeping and panic attacks.

Robinson said the assault was unfathomable to her, but she noted it probably wasn’t unfathomable to Tomchuk or others in the Indigenous community.

Tomchuk said this was not the first time he was assaulted by police, but it was the first time it was captured on video.

Indigenous people disproportionately bear the most punitive aspects of the criminal justice system and it is these types of experiences that fuel anger and distrust, Steenbeek said.

“Many have stories of police violence or aggression,” she said, adding that most are not recognized or acknowledged.

“His stands out because it was documented.”

Tomchuk is Mohawk of the Bear Clan from Six Nations of the Grand River. In the year since he was released on bail under strict house arrest, he has focused on his sobriety and connecting with family, she said, adding that he’s turned his life around.

“What has been one of worse experiences of life has been turned into an opportunity for change and growth,” she said.

Hamilton police took swift action after uncovering the videos during their investigation. Const. Brian Wren was suspended and later charged with assault. In February, he pleaded guilty to assault and is set to be sentenced in June.

At the time of the incident, police Chief Frank Bergen called the video “disturbing” and “troubling.”

Police have since established an Indigenous liaison officer position, while Hamilton Indigenous community leaders created a consultation circle.

Outside court, Tomchuk said he feels great. But he also questioned why it took so long for the matter to be resolved. He’s hopeful the attention this case received will lead to changes, including body cameras on police.

Hamilton police recently announced cameras are being added to police vehicles, including microphones to record interactions. A body-worn camera pilot project was previously shelved.

“This should not happen to anybody,” Tomchuk said.

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2023-05-30T07:00:00.0000000Z

2023-05-30T07:00:00.0000000Z

https://thespec.pressreader.com/article/281513640532922

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