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Two London, Ont. officers walk away from assault charge after judge blasts Crown over lack of evidence

(Left to right) Daniel Spicer, Frank Boyes and Sean James arrive at the London Courthouse for the second day of their trial in London, Ont. on Wednesday May 24, 2017

Rarely are pitches to acquit an accused in mid-trial successful.

It’s even rarer when police officers are on trial for assaulting an innocent bystander.

Rarer still is to see a Crown lawyer dressed down by a judge after arguing rather weakly to dismiss a directed verdict application and keep a trial going.

But that’s what happened in the Ontario Court of Justice Thursday afternoon as a joint assault charge was dismissed against two of three St. Thomas police officers.

At the centre of it was Justice Ronald Minard, brought from Newmarket to London to hear the case, who had judicial zingers ready and little patience for the Crown’s argument that there was some evidence linking the charge to constables Frank Boyes and Sean James.

Frank Boyes’s lawyer Peter Brauti in London, Ont. on Thursday May 25, 2017

“I’m a simple guy,” Minard said. “But it’s inconceivable to me that the evidence I’ve heard can be sufficient.”

The two officers walked away from a joint charge of assault causing bodily harm on Jamie Clarke, 36, a London man mistaken for a jewelry store robbery suspect on Feb. 2, 2016.

Still charged is Const. Daniel Spicer, the one officer identified as pulling Clarke from a cab and putting him on the ground to be arrested.

The arrest happened because a St. Thomas police surveillance team was convinced Clarke was Wallace Piercey, the London man who was arrested with the help of James’ police dog, Trax, later that day.

I’m a simple guy. But it’s inconceivable to me that the evidence I’ve heard can be sufficient

Clarke, whose case was probed by Ontario’s Special Investigations Unit, testified this week that he was kicked repeatedly and “stomped” on the head during the aggressive takedown by police officers — he couldn’t say which ones — on Nadine Street.

Other officers present at the arrest testified there were no kicks or punches and Clarke actively resisted when they tried to handcuff him.

Minard called on the Crown to argue why he shouldn’t accept Boyes’ and James’ lawyers’ pitch to dismiss the charge against their clients.

The Crown had to show there was some evidence that could directly link the two officers to the charge.

Peter Brauti, who represents Boyes, and Gary Clewley, who represents James, argued that the key issue was Clarke was unable to identify any of the officers who he said had hurt him.

Clarke testified he was on his stomach and his head was down during the arrest and when he was lifted up, there were as many as nine police officers present.

The cab driver also testified and agreed that Boyes was “the nice officer” who came to his side of the cab and explained what was going on. He added his view of what happened to Clarke was obstructed by his cab.

And James, a dog handler who was the only St. Thomas officer not in plain clothes or in an unmarked vehicle, appeared at the end of the episode and told the officers that they had the wrong guy.

One of the two officers who testified had Boyes just standing nearby. At no time were Boyes or James ever said to be kicking or punching Clarke.

It was left to Crown counsel Jason Nicol to convince Minard to reject that argument and continue trying the two officers.

Nicol said Clarke’s evidence implicated all five officers at the scene, because Clarke said he was kicked multiple times and when he was lifted up, between three and nine officers were there.

“What is the evidence . . . that Officer Boyes assaulted Mr. Clarke or Officer James did?” Minard asked.

When Nicol said that the judge didn’t need that evidence, Minard jumped in. “The Crown’s evidence has to go higher than mere presence,” he said, adding, ”Why weren’t all five officers charged?”

The evidence was much stronger against a witness, Const. Jacob Fischer, who testified he helped Spicer get the handcuffs on, than it was against Boyes and James, the judge said.

When Nicol said “there is a lot of evidence not before the court,” that formed the basis of the charges, Minard said he had to try the case on the evidence before the court.

Daniel Spicer’s lawyer Frances Brennan in London, Ont.

“What in the world are we doing here with respect to these two accused?” he asked bluntly. “The Crown has to prove that whoever was putting the boots to Mr. Clarke,” was Boyes and James.

He said Clarke testified he was “getting hammered, but he can’t point out anybody.”

“ ‘Round up the usual suspects,’ is that what you’re saying?” he asked Nicol, quoting the the film Casablanca.

Things got even more heated when Nicol referred to Brauti’s cross-examinination of Clarke, when he suggested there may be evidence from an officer that he punched Clarke in the head twice and Clarke was willing to adopt the statement.

“Oh, come on,” Minard said. “Are you seriously saying something Mr. Brauti says is evidence?”

Nicol said it was once it was adopted by Clarke. “You can’t be serious,” Minard said. “I’m sorry. That’s ridiculous.”

The judge added that while Brauti’s question may reach the standard “of gossip at Tim Hortons . . . it’s not evidence.”

When Nicol again raised the possibility of untendered evidence, Minard angrily referred to it as a “I-know-stuff-you-don’t-know suggestion.”

“I think those comments are beneath an officer of the Crown,” the judge said.

Spicer’s defence lawyer, Frances Brennan, also argued for a directed verdict, saying while the evidence points to her client pulling Clarke out of the cab, he had knelt beside Clarke to hanbdcuff him and couldn’t have kicked or punched him.

Minard said Spicer was in a different category than his co-accused because there was evidence that had him directly with Clarke during the arrest.

Spicer’s trial continues Friday.