A picture is worth a thousand words. But, what about a grainy surveillance video with no audio?
The defence in Const. Derek Fish’s assault trial made the case Monday that words really do matter and that a video of the Halifax police officer putting Jaret MacNeil in a headlock and hurling him to the ground on the morning of April 27, 2017, does not constitute excessive force.
The incident happened outside Cheers Bar and Grill in downtown Halifax, where MacNeil and friends, including fellow Cape Bretoner Adam Currie, were celebrating completion of engineeringprogram exams.
MacNeil testified Monday that he had consumed 10 or 12 beers before arriving at the bar and had “a couple of shots and a beer,” at Cheers. He said hewas “fairly intoxicated” and remembered engaging in conversations but didn’t recall what exactly was said and remained hazy about exactly what happened at different times outside the bar.
He said he exited Cheers when staff asked Currie to leave because he was “too drunk.”
MacNeil said he tried to reenter the bar to tell another friend that he and Currie had left. The other friend’s phone was dead, so he couldn’t call him, he said.
Video clips provided by Cheers show MacNeil and Currie outside the bar, along with Fish and two other police officers who were working the area of the bar complex that night. After Currie was ousted, he and MacNeil eventually left the front entrance of the bar but returned about six minutes later. That’s when the alleged assault took place and thesurveillance video shows MacNeil approaching Fish and the burly constable pushing him openhanded. Then, he pushed MacNeil again before putting him in a headlock and throwing him to the ground.
“The video is the best evidence,” Crown prosecutorSylvia Domaradzki said during a courtroom break.“It shows the exact interaction that occurred on the night in question between Const. Fish and the complainant. On the basis of the video, the judge (Rickola Brinton) can make a decision whether or not excessive force was used by Const. Fish.”
In cross-examining both MacNeil and Serious Incident Response Team investigator Sgt. Gordon Vail of the RCMP, defence lawyer David Bright suggested that what was said escalated Fish’s response and that the incident probably did not warrant a
SIRT probe. SIRT independently investigates all serious incidents arising from police actions in Nova Scotia.
MacNeil admitted he could not remember conversations with Fish but maintained that he hadn’t made contact with the officer physically. Asked by Bright how he knew that he wasn’t “rude and aggressive” with the officer, that he hadn’t used swear words and that he didn’t initiate physical contact, MacNeil replied it wasn’t something he would do because he respects police officers.
“I would not have spoken like that to a police officer,” MacNeil said. “I know that I would not have said anything derogatory to a police officer.”
Bright told MacNeil that maybe he’s a different person when he’s drunk.
“I’ve talked to police officers when I was drunk before,” MacNeil said.
Both MacNeil and Currie were charged with being intoxicated in a public place and MacNeil was later attended to by paramedics at the police station and briefly at the hospital.
“A nurse cleaned up a cut on my head and that was it,” MacNeil testified, adding that he had a secondcut on his head and a
couple of contusions elsewhere.
The extent of the injuries led Bright to question Vail about what prompts a SIRT investigation.
Vail responded that there were two SIRT probes involving that night. The first concerned a complaint from Currie that video he had taken on his phone outside the bar had been deleted during the time he spent at police headquarters. Vail said the initial phone deletion probe was dropped after technicians examined Currie’s phone and found no evidence that a video had been deleted or that there ever had been a video.
Bright raised the possibility that Currie, who had drank just as much or more than MacNeil, may not have been able to work the phone properly in his impaired state.
“Agreed,” said Vail, conceding that it wasn’t known if Currie had actually taken a video.
Vail said during the phone investigation, the bar video of MacNeil’s arrest was uncovered, leading to the second investigation and the charge against Fish for using excessive force.
Bright also asked Vail how the incident fit thecriteria for SIRT investigations, which are contingent on serious injury or being in the public interest. Vail responded that it
was the sole discretion of then SIRT director Ron MacDonald and that the second investigation was prompted by the public interest criterium. Bright asked Vail if he knew of and if he had noted in his report that MacNeil is the nephew of Alphonse MacNeil, the former RCMP commander for Nova Scotia. Vail said he was aware of the relationship but didn’t note it in his report.
Outside the courtroom, Vail, Bright and Domaradzki all declined comment about the inference that MacNeil’s relationship to the former RCMP chief may have influenced the decision to go ahead with the second SIRT investigation.
Bright also questioned MacNeil about obvious discrepencies in the text of his complaint and the bar video, including MacNeil’s complaint contending that Fish grabbed him from behind. In court Monday, MacNeil said he now knows that statement was not true but it was his recollection at the time of filing the complaint.
The trial continues Thursday in Halifax provincial court, with Currie taking the stand, and then on April 4 and 5, when Bright expects to call Fish and an expert witness to the stand.