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Ottawa Citizen - Man had right to resist illegal arrest, lawyer argues

(2012-08-17)

Man had right to resist illegal arrest, lawyer argues

By Andrew Seymour, OTTAWA CITIZEN

August 17, 2012 

OTTAWA — An intoxicated man had every right to head-butt a police officer after being unlawfully apprehended under the Mental Health Act, a defence lawyer argued Friday.

Fernando Vieira-Rodrigues, 46, was merely drunk — not mentally ill — and didn’t pose a danger to himself or others when two Ottawa police officers entered the backyard where he was drinking and took him to the ground, lawyer Solomon Friedman argued.

Instead, the officers used Section 17 of the Mental Health Act as an excuse after the fact to explain why Vieira-Rodrigues was in custody when he allegedly reared back and head-butted Const. Earle Cook in the forehead, Friedman alleged.

Section 17 allows for people to be apprehended where they appear mentally ill and are threatening or attempting to harm themselves or others.

“Section 17 is a post facto justification for why this man was taken to the ground, handcuffed and dragged to a police car,” Friedman argued. “What happened here was cowboy policing.”

It didn’t matter that Cook had a badge, gun and uniform, Friedman said, since Vieira-Rodrigues had the right to resist an illegal arrest and assault.

Vieira-Rodrigues, who has pleaded not guilty to assaulting a police officer causing bodily harm, was confronted by the officers in the backyard of a Summerville Street townhouse last August.

The two officers involved in Vieira-Rodrigues’ arrest provided wildly differing versions of what happened.

Const. Adrian Ring testified that Vieira-Rodrigues was sitting next to an empty rye and beer bottle, reeking of booze, when he stood up from his chair. Ring said Vieira-Rodrigues started banging his head with his hands and said he wanted to die as he moved toward the officers.

However, Cook said Vieira-Rodrigues didn’t appear drunk and was seated at a table covered with empty beer cans when he stood and demanded that the officers shoot and kill him. Cook’s version didn’t include Vieira-Rodrigues hitting himself.

Ring said Vieira-Rodrigues later banged his head off the police cruiser before rearing back and hitting Cook as he tried to loosen his handcuffs. Cook — who spent three months off work as a result of the blow — said nothing about Vieira-Rodrigues hitting his head on the car.

The head butt also could have been an unintentional reaction to discomfort caused from having the handcuffs loosened, Friedman argued.

Ring said he told Vieira-Rodriguez he was going to be taken to see a doctor, but took him straight to the cellblock instead. Friedman argued that Ring would have taken Vieira-Rodrigues to the hospital, as required by Section 17, if he had actually apprehended him under the Mental Health Act.

Crown prosecutor John Pepper accused Friedman of “over-egging the pudding” with his allegations that police were required to take Vieira-Rodrigues to hospital. Pepper said Section 17 of the Mental Health Act specified that officers “may” bring a person for a medical examination by a doctor.

Pepper said Vieira-Rodrigues actions went beyond that of a drunk person. He also encouraged Ontario Court Justice Dianne Nicholas to disregard the evidence of Cook since he suffered the head injury and his memory wasn’t reliable.

A verdict is expected Monday.

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