A police officer was not breaking the law by grabbing the genitals of a man under arrest to subdue him, a judge has found.
The Fort Providence offender – convicted of assaulting two officers, resisting arrest and breaching two separate probation orders – alleged excessive use of force when the officer grabbed and twisted his genitals while he struggled to avoid being placed in handcuffs.
On Oct. 29, 2019, responding to a call for service, RCMP found the man crouched behind a shack.
He was noted as being intoxicated and became agitated when told to come to the police car. A struggle ensued between the man and the two officers. All three suffered blows to their bodies and faces that left bruising.
As the officers tried to restrain the man, one Mountie was struck by the man’s wrist, which had been successfully placed in a handcuff. He asked the other officer to use her pepper spray on the agitated man. However, when the other officer didn’t respond, he “grabbed and twisted” the offender’s genitals as hard as he could. The man screamed but didn’t stop fighting. Eventually pepper spray was used to gain control over the man.
Defence lawyer Peter Harte argued the genital grab was a violating, unreasonable use of force and it constituted sexual assault. He recommended that the charges should be stayed as a result.
In delivering his ruling, NWT Territorial Court Judge Garth Malakoe said he was asked to consider whether the force used against the man was unreasonable, if his Canadian Charter right to be secure against arbitrary force was violated, and, if not, was the man guilty of assault with weapon against the officer for his strike with the handcuffs.
The court heard that while the officer was never taught the tactic in training, he was instructed to use whatever technique necessary to obtain compliance. He learned in the field that this was an effective tactic.
Malakoe acknowledged that police have to react quickly to their environments and that the officers in this case were protecting themselves from bodily harm. He ruled that “the sole purpose for grabbing and twisting (the man’s) genitals was for protection and compliance.”
“It was to get him to comply,” Malakoe said. “The sexual nature of this organ is irrelevant.”
He went on to say that he is “alive to the fact that this is unusual and should be under close scrutiny.” In this case, however, “the grabbing and twisting” was deemed reasonable and no breach of Charter rights was found.
In regards to the possible assault with a weapon, Malakoe said he was not satisfied beyond a reasonable doubt that the man intended to use the handcuff as a weapon when he struck the officer.
He convicted the man of simple assault as a result.
A pre-sentence report will be ordered for the man’s sentencing on June 7, 2021.