Nunavut judge tosses charges against man held in restraint chair

Nunavut Justice Earl Johnson: he agrees with defence lawyer Tamara Fairchild, who filed Charter applications in the case of Michael Naglingniq who said the charges facing her client should have been thrown out. (FILE PHOTO)

Justice Earl Johnson of the Nunavut Court of Justice has cleared an Iqaluit man, Michael Naglingniq, 25, of uttering death threats.

In a decision released Nov. 16, Johnson ruled that the Iqaluit RCMP violated the man’s rights under the Charter of Rights and Freedoms by erasing video evidence that would have shown him strapped into a restraint chair for more than two hours — an act of “unacceptable negligence.”

Johnson found police breached Section 7 of the Charter of Rights, which guarantees the right to life, liberty, and security of the person, but that there was no breach of Section 12, which concerns the right of every person not to be subjected to cruel and unusual punishment.

“I find the police breached the unacceptable negligence standard and that there was a breach of the accused’s rights under Charter section 7,” Johnson said

It is only in “rare cases” that breaching such rights would lead to a stay of proceeding, meaning the charges against an accused are dropped, Johnson said.

“I am satisfied that this is one of those rare cases… and I would have ordered a stay of proceeding if I had not acquitted the accused,” he said.

However, the missing video evidence made it impossible for him to make a ruling on whether the police subjected Naglingniq to cruel and unusual punishment, Johnson said.

“While the videotape evidence would have been determinative of the excessive force allegations, I decline to find a breach of Charter section 12 on the evidence before me,” the judgment said.

At Naglingniq’s trial this past August, defence lawyer Tamara Fairchild filed Charter applications saying the charges should be thrown out because her client was subjected to “cruel and unusual punishment” and robbed of a fair chance to defend himself at trial because of the destruction of video evidence.

Even though Johnson found Naglingniq not guilty on all charges, the judge reviewed the trial evidence to rule on the Charter issues “in the event I am wrong about my conclusions of the trial.”

Despite the “unusual” use of a restraint chair in the case of Naglingniq, 25, police failed to follow proper procedure and to preserve videotape evidence of the chair’s use, Johnson said.

“It is an extraordinary use of force and the officers should have been alive to the requirement to do things by the book. That did not happen in this case,” Johnson said in his 11-page decision.

Police arrested Naglingniq on June 17, 2013 for causing a drunken disturbance contrary to a court order Naglingniq was under to keep the peace.

RCMP members also charged Naglingniq with two counts of uttering death threats against the arresting officers, which he was alleged to have made before police released Naglingniq on June 18, 2013.

Johnson, who presided over Naglingniq’s two-day trial in August, dismissed one of those charges for lack of evidence.

Johnson found Naglingniq not guilty on the other charge of uttering a death threat because, between being highly intoxicated and being pepper-sprayed by police, Johnson couldn’t conclude beyond a reasonable doubt that the accused meant the threat to be taken seriously.

Because Johnson found Naglingniq not guilty of uttering threats, the judge also found the accused not guilty of breaking the court order.

Const. Garett Moore and Const. James Mearns arrested Naglingniq in June, 2013, for causing a disturbance.

En route to the Iqaluit detachment, Naglingniq, who was highly intoxicated, began yelling and swearing at the constables, kicking and head-butting the inside of the RCMP vehicle, Johnson wrote.

Moore pulled the vehicle over, and the two constables restrained and calmed Naglingniq down, using pepper-spray in the process.

The pepper-spray wore off after Naglingniq had been placed in a cell at the Iqaluit detachment. At that point, the accused “became abusive” again, kicking the cell door so hard that the RCMP members feared the door would come off its hinges, Johnson wrote.

By this time Const. Alexandre Benoit, the on-duty supervisor and acting commander, relieved Mearns.

Benoit and Moore decided to strap Naglingniq into a restraint chair until he calmed down.

Naglingniq remained strapped in the chair for two hours and 41 minutes, Johnson said in his judgment.

But Benoit, as shift supervisor and acting commander, was “aware of an RCMP policy on [the chair’s use],” Johnson wrote, and Benoit “understood that a prisoner should not be restrained for more than 60 minutes.”

Part of that policy also states that if a prisoner is restrained for more than two hours, a medical professional must assess the prisoner and notes must be taken explaining the circumstances justifying the continued restraint.

Benoit failed in both of those duties, and also failed to preserve video surveillance of the cells showing the use of the restraint chair, Johnson said.

“Benoit should have been aware of the importance of preserving the videotape evidence because of the unusual use of the restraint chair. He should’ve reported it to the detachment commander so steps could be taken to protect that evidence,” Johnson said.

While restrained in the chair, Naglingniq alleged he was pepper-sprayed at point-blank, which Benoit and Moore denied at trial.

“That evidence would clearly have shown who was telling the truth about the allegation that the accused was pepper sprayed in the restraining chair,” Johnson wrote.

Because that evidence does not exist, Johnson could not find that Naglingniq was subjected to cruel and unusual punishment, under Section 12 of the Charter.

But Johnson did find that Iqaluit RCMP acted with “unacceptable negligence” by destroying the video evidence, thereby depriving Naglingniq of other Charter rights.

There has been a rash of police brutality allegations made against Iqaluit RCMP in 2015.

An independent investigation into one such allegation, conducted by the Ottawa Police Service, concluded that two officers did not use excessive force when they pinned down an Inuk male in an Iqaluit cell in 2014 and punched that man five times in the head or neck.

Another investigation into allegations of police brutality, also being conducted by the OPS, is still under way.

2015 NUCJ 36 R v. Naglingniq by NunatsiaqNews