OPP use of Taser twice on Black man while he was running away was 'racially motivated,' judge rules

The Ontario Provincial Police has launched an internal investigation into the actions of four Norfolk County officers after a judge ruled the charter rights of a Black man were violated multiple times during his July 2021 arrest in Delhi.

Ontario Justice Aubrey Danielle Hilliard called the officers' actions in the arrest of Cassell Chase "unacceptable and intolerable, as well as "excessive" and "racially motivated," in the ruling released on May 31.

Chase was zapped with a stun gun twice while running away from police and then held in custody for 12 hours without a chance to speak to a lawyer.

There is simply no question that the police misconduct in this case must be resoundingly denounced.- Ontario Justice A.D. Hilliard

"I find that the police conduct must be strongly denounced as unacceptable and intolerable," Hilliard said in her ruling, calling the use of a Taser on Chase while he was running away from the officers "cruel and unusual." 

"There is simply no question that the police misconduct in this case must be resoundingly denounced," she wrote before essentially dismissing all charges against Chase, including obstructing police, escaping custody, assaulting police and failing to comply with probation. 

"In considering what other remedies can redress the prejudice to Mr. Chase under the second branch of the test, I have concluded that there are none."

OPP launches internal investigation

Hilliard's ruling came following a trial that ended May 6.

In response to the decision, the OPP said it will investigate further. 

"The OPP is aware of the judge's comments and takes these matters seriously," OPP spokesperson Derek Rogers told CBC News on Wednesday. 

PC Fody became defensive, stating that he didn't know whether it was "OK" for him to use the word "Black" to describe Mr. Chase's race.- Ontario Justice A.D. Hilliard

"We are assessing the information and will take any appropriate action"

Rogers told CBC News that all four officers are still on duty. 

While the OPP is saying little about the case, Hilliard's decision, which has been published online, details it from start to end.

The July 11, 2021, incident

On July 11, 2021, police were called to investigate a suspicious man who appeared to be lurking in the shadows between houses on a residential street in Delhi shortly before midnight.

The first officer to arrive, OPP Const. Leanne Best, pulled alongside the man in her cruiser. He was wearing dark clothing, carrying a plastic grocery bag and appeared to be barefoot. 

When the man didn't respond to Best's request to stop, she got out of her car and asked him to identify himself. He said he didn't have to give the officer his name. 

At that point, Const. Richard Fody, an acting sergeant and the officer in charge of the overnight shift, arrived at the scene. Fody also approached the man and asked him where he was from, to which the man replied, "Nowhere." 

Two more officers arrived at the scene. At this point, the man began to run. All four officers gave chase — three on foot, one in a car. 

Chase 'alone, unarmed' and faced 4 armed officers

Hilliard's decision said Fody ran along a footpath, where he eventually crossed paths with the fleeing man, who had jumped a fence. Fody told the man to stop running, and when he didn't, Fody used his Taser, followed by a second use of the electroshock weapon — an act Hilliard called "excessive use of force." 

"This breach is particularly egregious in my view because the use of force involved a conducive energy weapon in a situation where Mr. Chase was alone, unarmed and facing at least four fully armed police officers on the street late at night."

The judge found Fody used the taser on Chase before he was placed under arrest and before he could even be identified.

In her decision, Hilliard said Fody's use of violence wasn't just excessive, but "racially motivated." The judge indicated that during Fody's testimony, he used the term "coloured" to describe Chase, and in particular, the term "coloured male" twice.

"Upon being questioned about his choice of words in cross-examination, PC Fody became defensive stating, that he didn't know whether it was 'OK' for him to use the word 'Black' to describe Mr. Chase's race," the judge wrote. 

The judge wrote that Best and Fody, the two officers in charge of the investigation that night, failed to understand their obligations under the Charter of Rights and Freedoms to inform Chase how their actions as police officers informed his rights. However, the judge stopped short of saying whether she felt that failure was deliberate or the result of being unaware.

"Whatever the explanation — ignorance or malice — I find that this conduct supports my conclusion that this incident was neither isolated nor trifling," said Hilliard. 

According to Ontario's Sunshine List, Fody made $118,477.16 during the year of Chase's arrest while Best made $111,476.97.

Chase wasn't without guilt, according to the judge. The day after his arrest, court documents said he punched a police officer, who was identified only as "Special Constable Ricker" in the court documents.

Ricker was the officer in charge of photographing and fingerprinting suspects that day. After his picture was taken, Chase punched Ricker twice in the face with a closed fist, according to surveillance video taken at the police station.

"I am satisfied beyond a reasonable doubt that Mr. Chase assaulted Special Const. (SC) Ricker, a peace officer engaged in the execution of his duty on July 12, 2021, and in doing so caused bodily harm to SC Ricker," Hilliard wrote in her decision, noting the "egregious" breach of Chase's charter rights gave her no other choice but to stay the charges.

Hilliard wrote the behaviour of the officers during Chase's arrest was shocking enough to be an affront to the public perception of fairness within the Ontario justice system. 

"Racial bias in policing is a longstanding and systemic issue that must be clearly and unequivocally denounced. The impact of the overrepresentation of young Black men in the criminal justice system cannot be understated.

"Courts have continued to recognize and take judicial notice of the impact of institutional anti-Black racism on members of the Black community." 

For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.