Ontario Provincial Police officers allegedly falsified their notes to justify a racially influenced violent takedown of two First Nations brothers in Orillia, Ont., that was caught on cellphone video, according to a lawsuit filed in an Ontario court this week.
The lawsuit, seeking $400,000 in damages, names the Ontario government, two identified OPP officers and a number of unknown officers. It was filed in Toronto on Wednesday.
It alleges that the two officers, acting on a report that a “Native male” had fallen off a bicycle, illegally assaulted Randall May, 57, of Nipissing First Nation, and Aaron Keeshig, 50, of Neyaashiinigmiing First Nation.
The lawsuit also alleges that an OPP officer, assigned to investigate a complaint over the incident filed by May, offered to have May’s charges dropped if he abandoned the complaint, according to the statement of claim.
The legal action comes at a time of heightened awareness of racial profiling by the police against Black and Indigenous people and amid worldwide protests over recent high-profile incidents of police brutality.
In Canada, two Indigenous people were shot and killed by police in New Brunswick within a span of eight days in June. Chantal Moore, 26, was killed by police in Edmunston during a wellness check at her home while Rodney Levi, 48, of Metepenagiag First Nation, was fatally shot by the RCMP.
The incident involving the OPP in Orillia unfolded in the front yard and driveway of May’s home and was captured in cellphone video that was obtained by CBC News.
“In order to justify the illegal assault, detention and arrest, the police falsified police notes, falsely accused both brothers of offences they did not commit and wrongly charged Mr. May of assaulting police,” said the statement of claim, filed in the Ontario Superior Court of Justice.
“Mr. May and Mr. Keeshig, who are both First Nations men, assert that the illegal, violent and entirely unjustified treatment they suffered was the result of racial profiling, racial bias and discrimination.”
The OPP said in a statement it couldn’t comment on ongoing litigation.
However, its statement said that the OPP’s professional standards bureau investigated the complaint filed by May in February 2019, at the direction of the police watchdog, the Office of the Independent Police Review Director (OIPRD).
The statement said the internal investigation concluded that the allegations were “unsubstantiated” and that the findings were relayed by the OIPRD to May. The file was closed in May 2019, the OPP’s statement said.
The police force hasn’t yet filed a statement of defence because it was just served with the lawsuit.
Lawsuit alleges man was repeatedly Tasered
May told CBC News he doesn’t remember ever receiving the results of the investigation from the OIPRD.
The lawsuit claims he suffered the worst during the takedown. He was thrown to the ground, punched and repeatedly Tasered to the point where he lost control of his bodily functions, according to the statement of claim.
“I could hear myself screaming,” May said in an interview with CBC News outside his home, at the spot where the incident occurred on Sept. 15, 2018.
It was sunny that Saturday evening when May and Keeshig returned on their bicycles from a restaurant to May’s home, which sits on a lot surrounded by thick bushes and trees on a dead-end street.
May said he was walking his bicycle and crossing his driveway when he noticed an OPP cruiser pull up and an officer emerge.
“I had no idea what they were doing here,” he said.
“He grabbed my bike and I said, ‘What are you doing? You’re on private property.’ And he said that he got a complaint [that] some Native man walking down the road fell off his bike.”
Cellphone video shows incident
Cellphone video, recorded by May’s relative, Jessie Fancy, captured what happened next.
The video shows one officer, identified as Sgt. Mark Connor, shoving May into the bushes as Keeshig arrived, walking his bike.
Connor then told Keeshig to “back off” as May struggled to his feet, according to the video.
Keeshig inched closer and Connor repeated his warning.
“Don’t be rough on my bro,” Keeshig said, according to the video.
Sirens are heard in the background as Connor pushes Keeshig back before turning his attention to May. The sound of a Taser cracks in the air.
A second officer, Const. Andrew Markle, then appeared, grabbed Keeshig by the arm and flipping him to the gravel driveway.
“Get on the ground,” Markle is heard saying as he pinned Keeshig down and handcuffed him.
Markle then moved to back up Connor, who yelled at May to “stop resisting” and “put your hands behind your back.”
The sound of Taser charges are audible, along with May’s screams.
“Now they’re punching him,” Fancy is heard saying on the video.
“Connor continued to shock Mr. May with successive rounds shot from his Taser while Mr. May lay prone and defenceless on the ground…. At least one of the police officers yanked the Taser barbs out of Mr. May’s skin before shooting him again,” the statement of claim said.
“Connor and … Markle then began to punch Mr. May repeatedly, while one of them yelled ‘put your hand behind your back or I will Taser you again!'”
The lawsuit alleges that May was Tasered so many times that he became incontinent.
“They threw me in the back of this car and I guess I was just full of excrement,” he said.
May said the OPP did not provide him with a change of clothes or any blankets while he was in the holding cell overnight. He was forced to wash his soiled clothes in the toilet bowl, which he couldn’t flush, he said.
“I basically slept beside my own excrement,” May said.
“I guess they were trying to humiliate me.”
Charges withdrawn by the Crown
May was charged with assaulting a police officer and resisting arrest, along with two counts under the Liquor Licence Act of being intoxicated in a public place and having open liquor.
His criminal charges were withdrawn by the Crown in November 2018 and his liquor charges were withdrawn in April 2019.
Keeshig faced charges under the Liquor Licence Act of being intoxicated in a public place and having open liquor. He was convicted after an administrative error, but the conviction was overturned in March 2019.
The statement of claim alleges that the officers “illegally” detained May and Keeshig, and they never informed either man of the reason for their arrest. The document said the brothers were the victims of “assault and battery” at the hands of the officers.
“The force was excessive, unreasonable and not justifiable at law,” the statement of claim said.
It also alleges that the officers “falsified their police notes and other official records,” claiming May was in a fighting stance, put up his fist, was aggressive and pushed Connor.
“Any resistance to the detention and arrest was passive in nature and was justified in law by the fact that … Connor had no grounds to arrest or detain Mr. May and therefore had no grounds to use force against him,” the statement of claim said.
The document alleges that the officers falsely claimed that Keeshig fell off his bike when he arrived at May’s home and was carrying an open can of beer. The video clearly shows he was walking his bike when he arrived and was not holding a can of beer, which the statement of claim also alleges.
The officers also falsely alleged that Keeshig tried to interfere with the arrest, according to the statement of claim.
“Keeshig was never anywhere near Mr. May and fully complied with the instructions to stay back,” said the statement of claim, an assertion largely supported by the cellphone video.
Keeshig said in an interview he knew that if he resisted, it could have been much worse.
“I’d imagine if I would have stood up for myself … I probably would’ve got shot, too, maybe not with a Taser gun either, probably a real gun,” he said.
Officer allegedly offered deal
The statement of claim alleges that after May filed a complaint with the OIPRD about his treatment, the police watchdog asked the OPP to investigate, and the provincial police turned the matter over to its professional standards bureau.
One of the officers assigned to the file then offered May a quid pro quo, the lawsuit claims.
“One OPP officer even went so far as to offer to withdraw Mr. May’s criminal charges if he in turn would withdraw the OIPRD complaint,” the statement of claim said.
The document alleges that the officers assigned to investigate “began harassing Mr. May and pressuring him to drop the complaint.”
The OIPRD said it couldn’t comment due to privacy laws.
May and Keeshig’s Toronto-based lawyer, Promise Holmes Skinner, said she believes racism clearly played a role in the officer’s actions.
“There is no doubt in my mind that if Randy was a white man, none of this would have happened,” Holmes-Skinner said.
“It’s so unbelievable that a group of officers in broad daylight would attack a random Indigenous man for literally no reason and go onto his property and sort of engage in a gang-style beating.”