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Elderly Black couple alleges excessive force by Durham police when leaving hospital

Click to play video: 'Black couple injured in assault by Durham Regional Police: lawyers' Black couple injured in assault by Durham Regional Police: lawyers
WATCH ABOVE: Lawyers for a Durham Region-area couple say their clients, who are Black and are seniors, were injured by police outside a hospital when they were leaving to go home. The incident, which happened in 2018, is the subject of a civil lawsuit and police complaint. Seán O’Shea reports – Jun 15, 2020

An elderly Black couple who had a violent altercation with two Durham police officers in 2018 has filed for a review of a police investigation that cleared the officers of wrongdoing.

Police records, legal documents and video footage show that the couple, Livingston Jeffers and Pamelia Jeffers, was injured as a result of the encounter, which occurred after they attempted to leave a hospital in Ajax, Ont.

While hospital staff say they tried to prevent the couple from leaving because Pamelia had been placed on a psychiatric hold, the couple and their lawyers say there was no such hold in effect when they left the hospital, and they were free to leave at the time.

“At no time prior to or during the assault did any of the police officers have reasonable grounds to believe that the victims committed any crime or constituted any danger to themselves or any other person,” the couple’s lawyers, Faisal Kutty and Kalim Khan, state in a letter to the Ontario police watchdog, the Office of the Independent Police Review Director (OIPRD) on June 10.

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The matter is being made public amid heightened discussions and protests over anti-Black racism and police brutality that are taking place in Canada, the U.S., and around the world.

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It also comes as the Durham Regional Police Service specifically is facing renewed scrutiny over the way officers handled the arrest of a 16-year-old Black teen in 2019, though a subsequent investigation found that the officers followed proper protocol.

Video of that encounter began recirculating last week, and shows a pair of Durham police officers restraining the teen and placing a knee on his neck, drawing comparisons to the death of George Floyd during his fatal encounter with the Minneapolis police.

The couple, Livingston Jeffers and Pamelia Jeffers, were both in their late 60s at the time the 2018 incident at the hospital took place. The pair went to the Lakeridge Hospital just after eight o’clock in the evening on Oct. 30, 2018 because Pamelia was not feeling physically well and had complained of insomnia, according to police reports and legal correspondence provided to Global News by lawyers representing the couple.

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After waiting at the hospital for a couple of hours, the couple asked their examining doctor if they could leave and return the next day, and were advised that they could do so, the documents from the couple’s lawyers state. The couple called their grandson to pick them up, and they proceeded to leave.

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As the couple exited the hospital, a nurse tried to get them to stop and return back inside. Security personnel also arrived. Then, two Durham regional police constables who were nearby, Alex Edwards and Iyan Dusko, intervened at around 10:45 p.m, the documents say.

The encounter can be seen on hospital surveillance footage, a cellphone video taken by a witness, and is described in the police investigation report and legal documents.

Livingston is shown being held on the ground by the officers, one of whom is lying on top of him face-up, and he appears to be hit by the other officer. Pamelia is shown being held by staff and can be heard yelling.

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“By this time, the couple had sustained significant bruising and lacerations but were forcibly taken to the hospital and admitted and restrained to a bed for the night,” Kutty and Khan, the couple’s lawyers, state in a letter sent in February to the Ontario government, the Office of the Independent Police Review Director, and chief of the York Police, which investigated the matter.

Livingston was struck on the head repeatedly until semi-conscious, the documents and police report say.

Two Durham police are shown on witness cell phone video during encounter with Livingston and Pamelia Jeffers. Cell phone video via witness
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Livingston was subsequently charged with two counts of assaulting a police officer and attempting to disarm a peace officer. Both charges against him were later dropped.

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Livingston filed a complaint against the officers in 2019 to the Office of the Independent Police Review Director (OIPRD) alleging unlawful or unnecessary exercise of authority and force against both officers and alleging discreditable conduct, specifically using “insulting language,” against Constable Dusko.

The York Regional Police, which investigated the matter, found all allegations against the Durham officers to be unsubstantiated, except that Livingston was not advised of his right to counsel.

Last week, the couple’s lawyers filed for a review of the police investigation that cleared the police of wrongdoing, asking the OIPRD to reassess the investigation that found that allegations of excessive force and abuse of power by the officers were unsubstantiated.

“What has occurred in this instance was an egregious act of police overreach, use of excessive force against two elderly and vulnerable individuals,” states the June 10 letter from the lawyers representing the couple to the OIPRD.

“Leaving a hospital should not be a dangerous activity even if you are elderly, black and are suspected of suffering from mental health issues.”

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No criminal charges were pursued against the Durham police officers in this matter. However, Livingston subsequently laid a private information (complaint) in 2019 with a Justice of the Peace, who authorized assault charges against the officer.

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The Crown, however, did not proceed with those charges.

When asked about the matter, Durham police spokesperson George Tudos said in an email to Global News that it was looked into by OIPRD with the assistance of the York Regional Police.

“The investigation concluded that the allegations of wrongdoing raised by the complainant were unsubstantiated; however, the investigation did reveal that the officers did not read the complainant his charter rights upon arrest,” Tudos wrote.

“The private information filed by the complainant against the officers didn’t proceed because the Crown Attorney’s office withdrew the charges. The family currently has a civil proceeding before the courts and we are not in a position to speak further to this matter as a result.”

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An OIPRD spokesperson said in an email to Global News: “Unfortunately, due to the confidentiality provision in the Police Services Act, we cannot confirm the receipt of a complaint or provide any related information.”

In an email, a spokesperson for the Ontario Ministry of the Attorney General said that in the case of the assault charges pursued by Jeffers against the officers, “the Prosecutor carefully reviewed all the evidence, which included video, the pre-enquete transcript, all witness statements, medical records and photos, some of which was not available at the time of the pre-enquete” and that “after a through review and analysis, the Prosecutor determined that no reasonable prospect of convict exists and withdrew the charges.”

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“As this matter may be the subject of the Office of the Independent Police Review Director (OIPRD) and there is an ongoing civil proceeding, it would be inappropriate to comment further,” the spokesperson continued.

A spokesperson for Lakeridge Health told Global News that they could not comment on individual situations due to patient confidentiality and privacy. “What we can say is that patient and staff safety is our utmost priority,” the spokesperson said.

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The York Regional Police, which assisted the OIPRD with the investigation into the conduct of the Durham Regional Police during the encounter, outlines in its report from March 25 the encounter from the point of view of the police and hospital staff.

An unnamed hospital worker is described as telling Const. Edwards outside the hospital that Pamelia had been placed on a Form 1 hold under the Mental Health Act and therefore was not allowed to leave the facility. This type of involuntary hold is an application by a physician for a person to undergo a psychiatric assessment to determine whether they need to be admitted for treatment in a psychiatric facility.

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The Jeffers’ lawyers say that there was no Form 1, nor notice of a Form 1, issued to Pamelia at the time of the encounter on Oct. 30, the night she and her husband first showed up at the hospital. Rather, the lawyers point to medical records and statements that show that the first mention of a Form 1 appeared on Oct. 31, after the encounter took place and the couple was admitted to the hospital due to injuries.

“The Form 1 to be issued by the physician was still being processed in the crisis area at the time of the Jeffers’ exit from the hospital,” states the June 10 letter from the Jeffers’ lawyers to the OIPRD.

“Had there been a Form 1 issued and a Form 42 given to Mrs. Jeffers, and a Form 1 issued and a Form 42  given to Mr. Jeffers, then perhaps the couple would not have attempted to leave the hospital. However, even if a Form 1 and Form 42 validly existed at the time, the manner of intervention displayed by police remains unacceptable.”

The police investigation report says that Edwards intervened outside of the hospital to try to calm Livingston down, after which Livingston pushed Edwards who then attempted to arrest Livingston. Livingston then “clawed at the right side” of the officer’s face “causing several deep scratches” near his right eye, the report states, causing his glasses to fall off and break.

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The police report says that Livingston then used both hands and grabbed onto Edwards’ duty belt and his service weapon “in an attempt to disarm the officer” and that “While attempting to gain physical control of the accused (Mr. Jeffers), the accused kicked PC Dusko on his shin.”

“Mr. Jeffers began to shout ‘murder’ repeatedly and requested police let him go,” that report states.

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Livingston was then placed in handcuffs and arrested. The police report describes how photos of Livingston after the altercation show him strapped to a stretcher bed by the waist and wrists.

“A bump on the left side of his face, near his cheek and eye area was approximately three centimetres wide,” the report states. “A bump could be faintly seen on the back of his head on the left side and Mr. Jeffers had an abrasion on the right side of his head that was less than a centimetre in size.”

According to the report, Edwards was wearing a body camera that recorded just over 10 minutes of footage, but did not capture the entire interaction and was dislodged at one point

“PC Dusko asked ‘Why did you fight us’ and Mr. Jeffers replied, ‘I [did] not fight you guys, I just didn’t want me [my] wife to be taken.’ PC Dusko repeated ‘Why did you fight us?’ and Mr. Jeffers replied ‘No man, you guys came at me brother,'” states the report’s description of some of the body cam footage.
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The police report concludes that grounds existed for Livingston’s arrest, in part, because he was “causing a disturbance” and “obstructed the officers in their lawful duties.” The report also concludes that the amount of force used was “reasonable.”

Kutty and Khan, the lawyers representing the Jeffers, said in their letter to the OIPRD requesting a review of the decision that this case “suggests that elderly black people must weigh the dangers to their personal safety and exercise extra vigilance when attempting to leave the hospital unless they have written permission.”

“We are deeply concerned not only with the use of force by the responding officers towards Mr. Jeffers, but with the overall handling of the situation by the officers along with the hospital staff,” the letter continues.

​The OIPRD states that it endeavours to complete its review of the complaint within 30 days of receiving the request.

rachel.browne@globalnews.ca

Racial profiling and racial discrimination against Black people is a systemic problem in Canada, according to numerous reports and experts.

Black Canadians account for 3.5 per cent of the country’s total population, according to the latest government statistics, but are over-represented in federal prisons by more than 300 per cent, as found by the John Howard Society.

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A Black person is nearly 20 times more likely than a white person to be involved in a fatal shooting by Toronto police, a 2018 report by the Ontario Human Rights Commission found, and Black Canadians are more likely to experience inappropriate or unjustified searches during encounters and unnecessary charges or arrests. They’re also more likely to be held overnight by police than white people.

Black Canadians experience disparities in health outcomes compared to the population at large, and studies show they often face barriers and discrimination within health-care systems. Black people report higher rates of diabetes and hypertension compared to white people, which researchers say may stem from experiences of racism in everyday life.
Indigenous Peoples, who represent about five per cent of the population in Canada, also experience poorer health outcomes and face discrimination within health-care systems and by police. According to Statistics Canada, they are grossly over-represented in the prison system — Indigenous men made up 28 per cent of male admissions to custody in 2017-18 — and, according to the John Howard Society, are nearly eight times more likely to be murdered.

According to the Canadian Department of Justice, Indigenous women and girls are more than three times more likely to experience sexual assault and violence and are between six and 12 times more likely to be killed, depending on the province or territory.

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