It was a “serious, very serious” offence for Const. Corey McArthur to assault a youth handcuffed to a hospital bed in 2016, but not so serious that it warrants him losing his job, the officer’s defence lawyer said Tuesday.
Joseph Markson made the remarks in replying to final submissions from Guelph Police Service (GPS) during a virtual professional misconduct sentencing hearing.
“Const. McArthur did everything the public would expect” of someone who committed such an offence, said Joseph Markson. “He deserves a final opportunity to serve (with GPS).”
Since the attack, McArthur has been diagnosed with post traumatic stress disorder and has received ongoing treatment for the past six years, hearing officer Terence Kelly heard during the years-long sentencing process.
Criminally charged with assault causing bodily harm, McArthur pleaded guilty to the lesser charge of assault in 2018 stemming from that attack, caught by a security camera at Guelph General Hospital. He was granted a conditional discharge, along with three years of probation and was ordered to perform 240 hours of community service.
He pleaded guilty to discreditable conduct at the onset of the subsequent Police Services Act hearing in 2020, leading to the sentencing hearing currently underway.
Markson accused GPS of trying to “demonize” McArthur during its final submissions by painting him as a dishonest officer with anger management issues and a “character flaw,” urging Kelly to focus on the role the constable’s PTSD played in the incident.
McArthur’s “pre-emptive overreaction” in attempting to prevent the youth from hurting themself or others by elbowing him in the face aligns with his undisputed and then-undiagnosed condition, Markson said.
In the agreed statement of facts in the case, it’s acknowledged McArthur didn’t intend to hit the youth in the face, he pointed out, adding the youth had repeatedly struck themself in the head with their handcuffed hand, as well as hit their head off the bed rail.
GPS lawyer David Migicovsky previously drew Kelly’s attention to claims McArthur didn’t inform hospital staff of the assault he committed in the immediate aftermath, insisting the youth’s bloody injury was the result of self-harm.
Markson said McArthur had “17 reasons” to believe the blood visible in the video was a result of that self-harm.
Shown during the hearing, blood isn’t visible prior to the officer’s elbow strike but is apparent and increases in volume after.
The defence lawyer also took issue with Migicovsky’s references to a “cover-up” by McArthur, noting a lack of notes about the incident and his failure to file a use of force report.
However, Markson said, that allegation has not been agreed to and should not be considered in deciding sentencing.
“Const. McArthur failed to report the matter. That’s it. There was no concealment,” Markson told Kelly, noting the officer was not charged with neglect of duty or insubordination, but rather the one count of discreditable conduct, which was admitted to. “To insult Const. McArthur … by saying there is little evidence of remorse is unfortunate and contrary to the record.”
Noting the “substantial amount of material” to review in the matter, Kelly said he plans to announce his sentencing decision at some point in the fall.
