A 72-year-old man who was grounded by an Ottawa police officer so forcefully that his dentures were broken was spared the mandatory minimum sentence Thursday for impaired driving after judge ruled that the excessive force used by police warranted a lighter sentence.

Cyril Smith was granted a conditional discharge that could enable him to avoid a criminal record after he was aggressively pulled from his car by Const. Damian Gerlich during a traffic stop on Highway 417 on March 21, 2013. The traffic stop came after the officer observed Smith merge onto the highway without using a turn signal, weave between the lane markings and nearly hit the median, all while going about 120 km/h.

Ontario Court Justice Jacqueline Loignon didn’t believe the officer’s claims that Smith was resisting arrest and that the face first fall to the ground was an accident, concluding instead that the officer overreacted when he used the deliberate and unnecessary force. The treatment by police resulted in two teeth on Smith’s dental plate being broken, a real tooth being damaged seriously enough that it needed to be extracted, and in scrapes on Smith’s nose, cheek and forehead, court heard.

“The unnecessary use of force by a police officer will always be serious. In a case such as this where a 72-year-old man is forcibly and precipitously removed from a vehicle, suffering significant physical and psychological injury, limiting the ability to recall events that follow, society’s sense of fair play and decency are offended such that the integrity of the justice system is harmed,” said Loignon.

As a result, Loignon tossed out breath readings that showed Smith had a blood-alcohol level over the legal limit because of the breach of his Charter rights by police.

Smith had asked her to stay the charge of impaired driving, but Loignon declined. She concluded that such a remedy would be an “unjustified windfall” to Smith, given that the police abuse was an isolated, one-time overreaction by police. She also said Smith’s driving put the community at risk and that impaired drivers kill Canadians every day. Smith had testified he had several drinks prior to driving.

Loignon instead gave Smith a 12-month conditional discharge with conditions that he report to probation, complete and pay for the Ministry of Transportation’s Back on Track program, and not drive with any alcohol in his system for the next year. If Smith follows the conditions, he won’t have a criminal record.

The minimum sentence for impaired driving is a $1,000 fine and 12-month driving prohibition.

Loignon said the conduct Smith was subjected to and the price he had already paid warranted the significant reduction in the sentence.

Smith’s lawyer, James Foord, said his client was disappointed the charge wasn’t stayed entirely but was pleased that the officer was held to account for his conduct.

Source: Ottawa Citizen


Last updated on: 2014-07-11 | Link to this post