The prosecutor in a professional conduct hearing of a Guelph police officer said Tuesday that new evidence shows the officer has a pattern of aggressive behaviour and should be allowed.
The evidence portion of the hearing for Const. Corey McArthur has wrapped up, but prosecutor David Migicovsky is seeking to introduce new evidence from a 2014 court case regarding a 2012 traffic stop in Downtown Guelph during which McArthur drew his gun. The judge in that matter was critical of McArthur's actions.
Tuesday's virtual hearing was a continuation of matters against McArthur, who was found guilty of criminal assault charges in 2018 following the charge of discreditable conduct for the 2016 assault against a teenager who was handcuffed to a hospital bed at the time.
McArthur plead guilty to assault in 2018 and was sentenced to three years probation.
The Guelph Police Service wants him dismissed from the force.
Migicovsky wants to introduce evidence from the 2014 traffic stop matter that he believes showed a history of aggression from the officer.
During the 2014 trial on that traffic stop matter, Justice Gary Hearn said McArthur was apparently an aggressive officer, and noted that his actions raised some concern.
“The new evidence that the prosecution wants to lead is twofold: We want to tell you about the fact that Const. McArthur applied for early release from probation and changed his mind after the Crown objected, which happened after the last day of the hearing, and secondly, we want to give you the decision as a document like every other document you receive as character evidence from Const. McArthur which is why the Crown was objecting,” said Migicovsky.
The prosecutor said the comments made by the judge in the traffic stop incident are "highly relevant to the issue."
During the evidence portion of the hearing, which ended in October, defence expert witness forensic psychiatrist Dr. Jonathan Rootenberg testified the aggression seen in the video where McArthur assaulted the hospital patient was out of character for the officer.
The prosecution argued the new evidence they are looking to introduce shows this contradicts Rootenberg’s testimony.
Migicovsky said this newfound court case presented conclusive evidence that discredited the non-aggressive pattern testimony Rootenberg said he found in McArthur, as it shows a deeper history of aggression.
McArthur's defence team, represented by Kate Robertson from Markson Law, said the defence felt the admissibility of the evidence would turn the hearing into a substantially delayed, distracted hearing to litigate a minor peripheral point that only supplements the existing issues.
The defence team argued during the traffic stop court case, McArthur was not a party to the proceedings, he had no right to make a submission, to call evidence, to be represented by counsel, to receive notice of the allegations against him or to receive disclosure in respect to the facts.
“The judicial decision ... does not constitute stand-alone evidence that can be filed in this process,” said Robertson.
“By clearing the allegations of wrongdoing, as alleged, and now reigniting this allegation as part of a supposed pattern warranting dismissal, the prosecution is implicitly circumventing the six-month limitation period that is imposed under the police services act,” said Robertson.
The defence said there was nothing new, and the prosecution was attempting to establish a pattern of aggressiveness.
The defence pointed to an argument the prosecution laid out in which Migicovsky referenced a search for McArthur in the court systems that did not occur as it was not standard practice, with the defence team arguing that is not a valid reason to now bring up a near decade-old court case.
Presiding over the matter is Terence Kelley, who said he would do his best to come to a conclusion in a timely manner regarding whether the new evidence can be introduced.
