One member of the Nunavut RCMP holds down Bernard Naulalik’s legs and another member sits on the prisoner’s chest while winding up to deliver a blow to Naulalik’s head or neck. The three charges Naulalik faced from July 18, 2014 were stayed by the Crown after his defence lawyer filed a Charter application alleging “cruel and unusual punishment” suffered by her client at the hands of these two officers. But the Nunavut Crown’s office says that Charter application did not influence the decision to stay the charges. (RCMP SURVEILLANCE VIDEO CAPTURE)
By Thomas Rohner | Nunatsiaq News, May 06, 2015
Police lay “false” assault charge to cover attack on prisoner, defence lawyer alleges
Nunavut RCMP have referred a second case of possible excessive force by a member to an external police force, after another video surfaced within Nunavut court records that shows an RCMP officer repeatedly punching an Iqaluit man in police custody.
RCMP arrested Bernard Naulalik, a 24-year old father of one, on the night of July 18, 2014, in Iqaluit, on three fairly minor charges: one count of possessing marijuana and two counts of breaching probation orders to avoid drinking alcohol.
Four months later, on Nov. 16, 2014, his lawyer filed an application under the Charter of Rights and Freedoms to have those charges stayed because of what she says happened to Naulalik after police put him into a cell at the Iqaluit detachment.
A video of the incident, obtained by Nunatsiaq News from the Nunavut Court of Justice, shows Naulalik pinned down by two police officers while one of them, sitting on his chest, punches Naulalik five times in the head or neck.
The officer throwing the punches has his back turned to the camera, so it’s not possible to see exactly where his blows land.
The two officers then laid an assault charge against Naulalik.
Naulalik’s lawyer, Tamara Fairchild, alleged in her application that police laid the assault charge “in order to justify the assault of Mr. Naulalik.”
The Nunavut Crown’s office stayed the assault charge last September. The Crown then stayed the three remaining charges against Naulalik on March 24, four months after Fairchild had filed her Charter application.
The Crown’s office told Nunatsiaq News they can not comment on their reasons for staying the charges.
“This needs to be out in the public,” Naulalik said in a short written response, issued through Fairchild to Nunatsiaq News April 28.
“The RCMP has to address this issue. I don’t want anyone else to go through what they did to me.”
This is the second time in two months that Nunavut RCMP have had to call in another police force to examine the conduct of officers handling prisoners in Iqaluit holding cells.
Another incident relating to allegations of excessive use of force, reported by Nunatsiaq News in February, involved an RCMP officer punching a naked man while holding a taser in his hand, in an Iqaluit detachment cell, prompted the Nunavut RCMP to call an external police review.
The Ottawa Police Service is now investigating that incident to see if disciplinary measures are warranted.
And an external investigation into the incident involving Naulalik has also been referred to Ottawa Police, Insp. Don Halina told Nunatsiaq News May 4.
Though RCMP “V” division were aware of the video for months, they only referred the case to external review after receiving a public complaint two weeks ago, on April 20, alleging excessive force and public mischief against the officers involved with the Naulalik incident.
Because both reviews are being handled by an external agency, Halina said he could not provide an update or a timeline for completion of either investigation.
But he did say the scope of such reviews includes the possibility of laying criminal charges against the officers involved.
“Any consideration for internal discipline [of the officers] will be done after the review is completed,” Halina said.
Halina urged the public to avoid jumping to conclusions before the investigation into the incident with Naulalik is complete, at which time he said the Nunavut RCMP would issue a media release.
“The video only gives a portion of the context of the interaction, and I would urge everyone to allow the investigation to run its course before coming to any conclusions of whether the individuals involved… contravened any statutes of the Government of Canada,” he said.
The video of Naulalik, which does not have accompanying audio, shows him being put into cell number three at the Iqaluit detachment just after midnight on July 19, 2014.
After Naulalik lies face-down on a concrete bench within the cell, one RCMP member enters the cell and searches Naulalik’s pockets.
Naulalik begins to sit up, pushing the officer’s hand away. The officer then grabs the back of Naulalik’s neck and pushes his head down onto the mat laying on top of the concrete bench.
A struggle ensues between the smaller Naulalik and the larger police officer.
When Naulalik manages to flip the officer onto his back, a second officer enters the cell.
The two officers eventually pin Naulalik onto his back, but not before one of the officers appears to throw a punch that lands on Naulalik’s chin.
With the second officer holding Naulalik’s legs down, the first officer sits on top of Naulalik’s chest, punching the prisoner in the head or neck five times.
The officer sitting on Naulalik’s chest then pushes himself up off of Naulalik and appears to knee Naulalik in the chest or shoulder.
Naulalik slowly moves his legs after the officers leave the cell and eventually sits up.
For the next six minutes, he sits on the edge of the bench, his head hanging loosely, his torso swaying at times.
Though the officers in question are named in court documents, Nunatsiaq News has chosen not to publish their names until the external review into their conduct is complete since they are still on active duty in Iqaluit.
Halina said RCMP were aware of the video’s contents when they disclosed it to the Crown’s office in regular court proceedings and that nonetheless, “we felt comfortable with the laying of [assault] charges [against Naulalik].
“It was the Crown’s choice to stay the charges, and that’s their prerogative.”
Crown prosecutor Caroline Lirette told Nunatsiaq News that she could not comment on the Crown’s reasons for staying the charges because, technically, the charges are still before the court.
A stay of charges means court proceedings have been halted but the Crown still has a year to reactivate those charges and seek a prosecution if new evidence comes to light.
Otherwise, the charges are formally dismissed after one year.
But in general, Lirette said, Crown prosecutors have two guidelines governing whether to proceed with a prosecution: first, determining if there is a reasonable prospect of conviction; and second, if it is in the public’s interest to continue the prosecution.
“I can tell you that my decision, and the [Crown’s] decision in fact, was in accordance with the guidelines,” Lirette said.
Lirette also pointed out that Fairchild’s Charter application was never tested in open court and therefore the allegations contained in her application are unproven.
“The [Crown’s] decision to prosecute or to suspend proceedings has nothing to do with applications that may be made by defence [counsel] before the court.”
Though Halina suggests there is further context to consider in the interaction between police and Naulalik, Fairchild said in her Charter application that the “entire interaction” was captured on video.
In that application, Fairchild argued that the “excessive force” used by the officers, amounts to “cruel and unusual punishment,” something that citizens are protected against under Section 12 of the Canadian Charter of Rights and Freedoms.
Fairchild also argued that her client’s basic rights were violated under Section 7 of the Charter, which says, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Fairchild also argued that the officers’ “false” charge of assault against Naulalik betrayed the public’s trust in enforcement authorities.
“When the police assault an accused and attempt to justify the abuse by alleging an assault by the accused, the police conduct strikes at the heart of the integrity of the administration of justice,” Fairchild wrote in her application.
Naulalik still faces a number of other breach of probation charges from an unrelated incident.
Bernard Naulalik (on top) wrestles with a member of the Nunavut RCMP in an Iqaluit detachment jail cell on the night of July 18, 2014. The Ottawa Police Service has begun an investigation into this incident caught on surveillance video after a public complaint was lodged April 20 alleging excessive force and public mischief by two Iqaluit officers who appear in the video. (RCMP SURVEILLANCE VIDEO CAPTURE)