By Keith Lacey
A Sudbury police constable will find out next Thursday if he will have to go on trial on one count of assaulting a drunk man with a flashlight 28 months ago.
Const. Dan Kingsley had one charge of assault causing bodily harm stayed against him last May. A judge ruled his right to a fair trial would be seriously jeopardized after it was revealed a police videotape was inadvertently taped over by another officer.
The complainant in the case, who court heard admits he was severely intoxicated, was taken to police headquarters following his arrest. A video tape recorded Kingsley interacting with him in the booking area.
That videotape was taped over by accident by another officer months after defence counsel asked for disclosure on all Crown evidence available, court heard.
Sudbury's Crown's office appealed the judge's ruling and Monday North Bay assistant Crown attorney Paul Larsh told Justice Patricia Hennessy of the Ontario Superior Court that Justice Bruce Payne made an error in law in staying the charges.
Defence counsel Harry Black said Payne did not make any errors in law, made the correct decision in granting the stay of charges and the appeal should be dismissed.
Kingsley, 32, was charged following a complaint by a Sudbury man who said Kingsley repeatedly hit him with his police-issue flashlight Oct. 16, 1999 outside a New Sudbury bar.
Larsh told the court staying the charges without hearing any evidence from any witness wasn't appropriate.
"Whatever happened happened in the parking lot," and the case should proceed to trial before any ruling on the importance of the videotape is made, said Larsh.
The missing videotape might be of assistance in determining the complainant's demeanour, state of intoxication, any physical injuries and interaction with Kingsley, but "it's pure speculation" on how important the videotape would be at trial, he said.
"At some point the judge should have listened to some of the witnesses at the scene," he said. "The learned judge was wrong in granting a stay."
The Ontario Court of Appeal clearly states staying of charges should only be imposed "in the rarest of cases" and this isn't one of those cases, said Larsh.
The key issue of whether there was an assault causing bodily harm and whether Kingsley used excessive force can't be answered by the tape, but only by witnesses at the scene, said Larsh.
Black said Payne didn't refuse to hear evidence, but rightly ruled on case law before him and the fact he considered the videotape to be crucial to any defence in this matter.
The videotape evidence was crucial to presenting a full defence, he said.
The Crown and police had several months to seize the videotape after he made an initial request for disclosure and failure to do so is tantamount to "unacceptable negligence" which is grounds for granting a stay of charges, said Black.
"The tape was clearly relevant and its loss was inexcusable," he said. "This is gross negligence."
If Hennessy rules in favour of the Crown, Kingsley will return to court to set a trial date. If the appeal is denied, the charge will likely be withdrawn by the Crown.
Kingsley still faces a Police Services Act tribunal in relation to an allegation he roughed up another man outside a Wahnapitae tavern two weeks after this initial allegation.
Kingsley was charged with assault with a weapon, while Const. Jason Katz faced one charge of common assault after a Thunder Bay man, Mike Cloutier, claimed both officers used excessive force during an arrest Oct. 30, 1999.
Following a lengthy investigation by the North Bay OPP, both Kingsley and Katz were charged. Kingsley has not returned to active duty since being charged, but has been getting full pay while working desk duties.
If a police officer is found guilty of misconduct during a police tribunal, punishment ranges from demotion or rank and pay, to a fine to dismissal.
If a tribunal finds an officer was not guilty of misconduct, they are free to return to active duty with their rank unaffected.