Warning: Some details in this story are distressing
Ontario’s police watchdog initially balked at investigating an alleged police assault of a Mohawk man that was captured on camera and eventually led to charges against officers from Belleville, Ont., according to recent court testimony.
The province’s Special Investigations Unit (SIU) — the agency tasked with death or serious injury cases involving police — notified the Belleville Police Service that it would not invoke its mandate days after the Nov. 15, 2019, occurrence, according to testimony heard in a Belleville court last month.
It would take 13 months for the SIU to open an investigation into the alleged assault following a separate complaint to the Office of the Independent Police Review Director (OIPRD), a civilian police oversight body, according to court testimony.
Const. Paul Fyke, Const. Jeffrey Smith and Const. Kyle Dodds were each charged in May 2021 with assault causing bodily harm in the arrest of Mario Baptiste Jr., 38, a gas station owner from Tyendinaga Mohawk Territory, located on the Bay of Quinte in southeastern Ontario.
Crown prosecutor Ian Bulmer withdrew the charge against Dodds shortly before the trial in Ontario’s Superior Court of Justice began in October.
The alleged incident stemmed from an off-duty investigation by Fyke into a suspected “distraction theft” and stolen energy drink from a Lowe’s store in Belleville. Fyke’s call to police dispatch to take up the case led to the arrest at a Taco Bell of Baptiste Jr., who had purchased $33 worth of garbage bags and paper towels at the hardware store.
Baptiste Jr. lost consciousness after he was tackled to the ground by Fyke and Smith, according to testimony heard at the trial. He was taken by ambulance to the hospital and found to have a cracked rib and a broken pinky finger.
Fyke and Smith are jointly facing trial. Both testified in their own defence last month, stating they believed they had grounds to execute an arrest and they did not use unnecessary force.
Bulmer is expected to wrap up his final submissions to the court on Nov. 16. Defence lawyers — Harry Black for Smith and Kimberly Miles for Fyke — have already made final arguments.
‘There needs to be an inquiry’
Fyke, who was promoted to acting sergeant August 2022, testified he was notified by a superior the night of the alleged incident that the SIU would be contacted. He received an email a few days later informing him the agency would not be pursuing an investigation, according to his testimony.
Stan Jolly, a retired civil servant and former senior adviser on Indigenous justice issues with Ontario’s Ministry of the Attorney General, said in an interview with CBC News he worries that the SIU’s delayed investigation may have harmed the case.
“It’s more difficult to do an investigation. People’s memories have changed or become older, and it’s just not as fresh,” said Jolly, who helped Baptiste Jr. file the complaint with the OIPRD.
“There needs to be an inquiry into what happened here…. Who covered it up if it was a coverup?”
Jolly, who met the Baptiste family through investigative work for Amnesty International in Tyendinaga, said answers may lie in the information communicated by the Belleville police to the SIU and how that information was interpreted by SIU investigators.
“Was there an honest misunderstanding about what constitutes a serious injury?” he said.
Kristy Denette, a spokesperson for the SIU, told CBC News the agency would not answer any questions on its handling of the case or why it chose to not immediately open an investigation until the conclusion of the trial.
The Belleville Police Service also said it would not answer any questions about how it characterized the incident to the SIU or whether it disclosed that video cameras captured the alleged police assault.
Off-duty officer suspicious
Central to the Crown’s case before Justice Patrick Hurley is about 40 minutes of security video from inside and outside the Taco Bell where Fyke and Smith allegedly assaulted Baptiste Jr.
The video — along with testimony from Baptiste Jr., Fyke and Smith and other evidence submitted during the trial — helps construct the narrative around a Friday night in Belleville when lives became forever altered after intersecting at a Lowe’s hardware store.
That night, Baptiste Jr., with cash in his pocket, checked in on a lumber order and grabbed some paper towels and garbage bags at the hardware store. He caught a ride there in a pickup truck with his friend and his friend’s teenage son, who wore a white ball cap for the trip.
“I’m walking around, they get their stuff, I get my stuff,” he testified.
But Baptiste Jr. said he didn’t know they were all being watched.
Fyke, who was off duty, also went to the hardware store that evening with his wife to exchange a product. He said he overheard employees saying they suspected a group of three males were trying to stage a “distraction theft” and that one of the males, wearing a white cap, had taken a Powerade from a cooler and drank it, according to the officer’s testimony.
He offered to help and set out to track down the “male parties” in the store. Fyke said he never saw anyone steal anything, but he found the actions of Baptiste Jr. and his friends suspicious.
Fyke said he noticed “whispering” between the teenager and his father. He said they “raised eyebrows at each other” and that at one point, the teenager performed “a block” to obstruct the view of his father, who crouched to look at an item on a bottom shelf.
The officer said he didn’t see “any specific distraction,” but his suspicions crystallized in the hardware store’s parking lot, because he said the trio drove off a little too quickly in the pickup truck. Fyke called police dispatch and followed them to a Taco Bell.
While Baptiste Jr. waited for his order of nachos, two Taco Supremes, fries and a root beer, three Belleville police cruisers — two marked, one unmarked — pulled into the parking lot of the Taco Bell, court was told.
Fyke briefed the officers who arrived on scene, including Const. Jeffrey Smith and Const. Jill McAuley. Fyke told them a male in a white cap “had stolen a drink” and that employees at the hardware store suspected something else may have been stolen, according to McAuley.
“They didn’t know what, at the time,” McAuley said, according to a recording of her interview with the SIU that was filed in court.
‘I tell the guys … he’s turning blue, stop’
Officers used flashlights to check the inside of the pickup truck but found nothing. Smith and McAuley entered the Taco Bell through the front door to confront the trio, trailed by a trainee, according to the video. A third uniformed officer entered through the side door.
Baptiste Jr. testified that the lead officer was “sassy” and “aggressive” as he walked into the restaurant.
“I have no idea what’s going on,” Baptiste Jr. said.
“[One of the officers] came in accusing us of stealing a can of pop, to get up and go with them.”
Smith testified that he “started a conversation” with the trio, saying, “Hey guys, how’s it going?”
The officer told them they were under arrest because police were investigating a theft at Lowe’s, that the teenager in the white cap took a drink and they were suspected of attempting a distraction theft, according to Smith’s testimony.
The teenager and his father agreed to head outside to clear things up, according to testimony from all sides.
Now alone, Baptiste Jr. showed his receipt to Smith, and, after an exchange of words, Smith lunged and grabbed Baptiste Jr. to pull him out of the booth, according to the video.
Fyke, still off duty, rushed into the Taco Bell to help Smith, who was grappling with Baptiste Jr. They both took him to the floor.
“I just basically said to myself, ‘I am f–king done, I can’t breathe.’ I just closed my eyes, and I don’t remember anything until the ambulance ride,” Baptiste Jr. testified.
McAuley said she noticed Baptiste Jr.’s face turned blue and that she believed he had stopped breathing.
“I tell the guys … he’s turning blue, stop,” she said, according to the SIU recording.
The video shows Fyke and Smith attempting to administer first aid. They tried to dig into his mouth, which was clenched shut, and attempted the Heimlich manoeuvre several times, along with other procedures, while they waited for paramedics to arrive.
“It seemed like forever that EMS was taking,” McAuley said.
Store never filed complaint about a theft
The trial provided no conclusive evidence as to why Baptiste Jr. lost consciousness. The defence floated theories that he suffered a seizure — though he had no history — and the Crown suggested he was “choked out.”
While Baptiste Jr. said he is not ready to talk about what happened, his parents say the incident left him scarred, both psychologically and emotionally.
“He’s definitely not himself,” his father, Mario Baptiste Sr., told CBC News.
He also had a message to the officers charged with assaulting his son.
“Something like that should happen to each and every one of their God damned kids,” he said.
In the end, police never found any stolen merchandise, and the hardware store did not file any complaints about a theft.