A judge has acquitted a man accused of throwing a bottle at police during a Halifax housing protest in one of the first decisions from a series of trials related to the 2021 demonstration.
Judge Gregory Lenehan found Robert John Newell not guilty on Monday of assaulting a police officer and resisting arrest, in connection with the protest during which several hundred people tried to stop the demolition of homeless shelters.
Police arrested about two dozen demonstrators and pepper-sprayed multiple people as a chaotic scene erupted on Aug. 18, 2021, when municipal workers attempted to take away the shelters that had been erected in front of the former Halifax public library.
Lenehan said in Halifax provincial court he wasn’t “certain of the identification” of Newell as the person seen in a video recording throwing a water bottle at a police sergeant, or as the person struggling with a constable during an attempted arrest.
The judge noted a number of problems with the police identification of Newell, saying the arresting officer’s procedure of looking at a single photo of Newell from a police database to identify him as the bottle thrower wasn’t sufficient.
Lenehan said the officer had received pepper spray in his eyes as he had arrested Newell, adding that the officer couldn’t properly see who he had detained and transferred to a colleague.
The arresting officer never asked the detainee his name, relying on a colleague’s account and then looking up the man on the police database, the judge said. Lenehan said it’s “not acceptable” for a police officer to use a single image from a police database to identify someone; the arresting officer, the judge added, should have looked at “an array of photos” to pick out the suspect.
“That identification is flawed,” Lenehan said. “It is no more acceptable for a police officer to look at a single suggested photo identifying a subject than it is to provide a civilian witness with a single photo for the same purpose.”
Lenehan added that the police witness had said Newell had a black service dog with him when the bottle throwing occurred, but the judge said the video shows that the person with a black dog “wasn’t the one who hurled the bottle.”
“I’m concerned that some of the officer’s testimony may have been influenced by his review of the video recordings and perhaps discussions with other officers, and details may have been added that his own memory could not provide,” he said.
The judge said he couldn’t be certain from the video images that the person sitting before him in the courtroom was the bottle thrower.
Joshua Nodelman, a legal aid lawyer who represented Newell, said in an interview that for a criminal offence to be proved in court, “it must be done on the basis of evidence that is reliable, that is receivable and that is not hearsay.”
“I think the judge conducted the correct analysis of the evidence that was before him and delivered an appropriate and reasonable decision.” Another defence lawyer, Asaf Rashid, is representing four people facing various charges in relation to the demonstration, with two cases now underway.
One of his clients is disputing the police interpretation of video evidence that she deliberately kicked constables during her arrest.
Halifax’s board of police commissioners has mandated a Toronto law firm to conduct an independent civilian review of the police response to the 2021 protest; that review is expected by May 31, 2024.
This report by The Canadian Press was first published June 8, 2023.