Assault suspect freed because North Bay police used excessive force

A young person has been charged with several offences, including sexual assault, following an incident April 21 in North Bay. (File Photo)

The Crown has received approval to appeal a decision that acquitted an assault suspect in North Bay because his rights were violated by police.

The suspect was arrested in October 2020 after police responded to a report of an assault. He refused to stop for police and was injured during the arrest, including a fractured ankle that required surgery.

A judge found him not guilty in January of this year, ruling that in addition to his injuries, there were no reasonable grounds to arrest him in the first place and that he was within his rights to not stop for police.

The Crown moved to appeal that decision, but decided it would be “inappropriate” to have police serve him with the official notice, considering the circumstances of the case.

However, under the rules of appeal, the Crown must serve the appeal notice directly to the defendant within 30 days of the decision – in this case, Feb. 16.

They failed to do so and applied to the court for ‘substituted service,’ which would allow the appeal notice to be delivered in a different way.

In his decision, the judge ruled that the Crown failed to look for alternatives to serve the defendant the appeal notice, which would have been relatively simple.

“Personal service only requires leaving a copy of the document with the individual. It does not require it to be delivered by a police officer,” the judge said.

“The Crown could have hired a process server to satisfy this requirement. As such, I find that the Crown has not satisfied the test of impracticality such that it could allow the court to make an order for substituted service.”

However, while the Crown didn’t serve the notice to the defendant on time, it did inform his lawyer and the court. And the most important element to the judge's decision is whether the Crown has shown that “justice requires” allowing an extension to the appeals deadline.

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“This court must simply ensure that there is some merit to the grounds to appeal, thus acting as a gatekeeper for frivolous or baseless claims,” the judge ruled.

“Given the reasons for the acquittal, and the argument that there was a misapplication of multiple legal tests, it cannot be said that the appeal is devoid of merit.”

As a result, the Crown has 30 days – or until the beginning of July – to find a way to deliver the notice of appeal to the defendant personally.