The legality of police employing a “genital squeeze” to subdue non-compliant male prisoners will be decided by an NWT Territorial Court judge on Monday morning.
Judge Garth Malakoe will decide whether the technique violates the section of the Canadian Charter of Rights and Freedoms that deals with life, liberty and security of the person.
Last month, defence lawyer Peter Harte argued his client was, in fact, sexually assaulted by an RCMP officer who “twisted his testicles and penis as hard as he could” while struggling to handcuff the intoxicated man in a dark Fort Providence yard in October 2019.
But the Crown maintains the level of force applied to the accused was “proportional and reasonable,” as both officers had been injured during the arrest and feared they were losing the fight.
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“So you’re saying,” Malakoe asked Harte, “that somehow by grabbing his testicles and penis, then twisting, that took it out of the ordinary and that never should have happened?”
“It’s a sexual assault,” countered Harte. “The reason he is being grabbed there, it is intended to shock him, it is intended to cause him significant pain … it is intended to interfere with his sexual integrity.
“The reason he is grabbed there is because it is an area known by everybody to be … something you don’t do.”
Asked Malakoe: “Is that because of the sexual nature of the area, or because of the extreme pain?”
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Said Harte: “It’s intended to shock and it’s intended to hurt … surprise, frighten, cause fear … it’s such a personal area of our bodies, as human beings.”
Harte argued if a female officer used that technique on a male prisoner, “it would be outrageous and clearly a sexual assault.”
Harte quoted the male officer’s earlier testimony, in which he admitted the crotch hold was not necessarily part of formal training.
But, said Harte, the officer had “learned over the years it’s a very effective technique” said to be used by others in the RCMP.
Either officer could have employed a Taser or pepper spray, said Harte, noting the latter was eventually used successfully after the genital squeeze.
Harte noted there were no lasting injuries to his client’s genitals.
Cabin Radio was not in attendance at the man’s trial earlier this year. Given the unusual and potentially inflammatory nature of the case, the accused and RCMP officers won’t be named pending the outcome of the Charter challenge.
Crown prosecutor Travis Weagant said the officers testified they had been injured in the struggle to handcuff their prisoner and were becoming concerned they could be compromised.
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The two officers were at a physical disadvantage. The male weighed between 140 and 150 pounds and the female was five feet tall.
The incident began after police received a report of an intoxicated man in the area. Upon arrival, officers recognized the man, in his twenties.
“My friend [Harte] has used the term sexual assault a number of times … we’re not here to litigate whether a sexual assault was committed, we’re here to litigate the necessary and reasonable use of force,” said Weagant, noting the man was known to authorities as being violent when drunk.
“Everybody knows this is a vulnerability for everyone who has male genitals. I think it’s fair to say there is a general perception [among police] that this is an effective way to subdue or inflict pain on somebody.
“On this particular day [the officer] was put in a difficult position and he made it.”
The accused faces two counts of assaulting a peace officer, one count of obstructing a peace officer, and two counts of violating a probation order.
Malakoe delivers his decision on Monday at 9:30am.
