After two days of hearing evidence from each side, it has been undecided as of yet whether Sault Ste. Marie Police Constable Matthew Keating’s misconduct charges on Tim Mitchell should be dropped.
Mary Pascuzzi, Keating’s lawyer, called on hearing officer Terrance Kelly to drop three charges against Constable Keating under the Police Services Act during the two-day hearing that started Wednesday at the police station – unlawful or unnecessary exercise of authority, discreditable conduct, and neglect of duty – stating that Mitchell took too long to file his public complaint against the officer, and that there was an abuse of process, delays, and the Office of the Independent Police Review Director (OIPRD) was biased in its investigation in this case.
Constable Keating was charged with misconduct after an incident in March 2016 where he and other officers were called to the home of Timothy Mitchell after Mitchell’s son called in reports of his father acting erratically. Keating observed that Mitchell had been drinking, breaching his recognizance that he abstain from alcohol. The situation then escalated, resulting in Mitchell being struck in the ribs by Constable Keating. Mitchell suffered broken ribs and a collapsed lung as a result of this, spending three months in Sault Area Hospital.
After repeated probes by the Sault Ste. Marie Police, the Special Investigations Unit and the Office of Independent Police Review Director, the case went to a criminal trial and was dismissed.
Pascuzzi argued that this repeated probing has hindered Keating’s attempts for promotion and has given him a bad reputation throughout the city, citing prejudice against her client. She also stated “negative media attention” to the case has caused further damage to Keating, saying the photo circulating around, provided by Mitchell’s family, of Mitchell in the hospital isn’t how he looked when he was booked into the police station the night of his arrest.
“This is inaccurate,” she said, again saying it “brings a great prejudice” to Keating.
An affidavit by Mitchell, who wasn’t present during the proceeding, states that he waited to file his complaint to OIPRD as he didn’t want to risk an unfair trial when he appeared in court in 2017. Instead, he waited over two years from when he was hurt to contact the OIPRD, in April of 2018, which Pascuzzi argued was “a lengthy and inappropriate” amount of time to wait, and that Keating was under the impression this incident was behind him.
“When are we done?” she said.
“There has to be some finality,” she continued, saying that the police department’s own bureau found no issues with Keating’s actions.
Thursday saw Mitchell’s legal counsel, Davin Charney’s rebuttal.
One issue Charney brought up was trial fairness, saying that there was “no precedent to say Micthell was wrong to delay his complaint,” adding that a statement made at that time could’ve been used against Mitchell during a related trial.
“There’s nothing close to (suggesting the delay caused “significant prejudice” to Keating),” he said.
Charney said that Police Service Act language regarding the OIPRD director’s action (this act allows the option to take no action against a complaint filed more than six months after an incident has occurred, but is encouraged to take consideration if the complainant is involved in criminal proceedings) is “clear and unambiguous.”
City police lawyer Joel Dubois said OIPRD accepted Mitchell’s complaint in April 2018, despite the fact that the incident happened 25 months prior.
The tribunal ended Thursday afternoon, but with no immediate decision by Kelly, who is a retired deputy chief of York Regional Police.
Instead, he told Charney, Dubois and Pascuzzi his decision will be ready “in a reasonable time” after reviewing “a great amount of material.”
To save time and because of the varying locations of the lawyers, Kelly said he will email copies of his decision to them, and media outlets were advised that they will receive Kelly’s decision through city police.