No jail time proposed at sentencing hearing for Hamilton cop convicted of assault

Hamilton police constable Brian Wren is unlikely to spend any time in jail for stomping on the head of an unconscious man during a violent arrest captured on video last year.

But whether he will get to keep his job remains to be seen at an anticipated disciplinary hearing.

Wren pleaded guilty in February to assaulting Patrick Tomchuk, who is Indigenous. The video, taken by a witness at a gas station May 26, 2022, shows Wren stomping and pressing his foot on Tomchuk's head while Tomchuk is unconscious and has several other officers on him.

In court Friday, the Crown asked for a suspended sentence, plus 18 months of probation. The defence suggested a conditional discharge with two to three years of probation. Neither would mean jail time, but a conditional discharge would spare Wren a criminal record, something that would be an advantage at a Police Service Act hearing.

The sentence and any findings of fact ultimately rests with Ontario Court Justice Bruce Pugsley.

Despite the clear video evidence, both the defence and Crown described what happened in vastly different lights during an intense day in court that included Pugsley at one point accusing the defence of gilding the lily" and interjecting that this isn't a tennis match."

Assistant Crown attorney Richard Garwood-Jones described Wren's actions as gratuitous violence" and a prolonged assault."

He targeted Patrick Tomchuk's head while he was outnumbered and on the ground," Garwood-Jones said. The dynamic nature of the event is no excuse for what he did."

Police are trained to continually reassess and Wren clearly was not following his training. Wren used such force in the kicks, which Garwood-Jones described as full windup soccer kicks," that Wren fractured a toe.

Wren's defence lawyer, Bernard Cummins, said his client was in the lawful execution of his duties as a police officer and that he was responding to threat cues," including information that Tomchuk may have been armed. (No gun was found).

He said the assault has to be viewed with the backdrop of increased violence against police."

It's acknowledged that he goes too far," Cummins said, later adding that this amounts 25 seconds out of an otherwise exemplary career that includes 9,000 working hours.

Wren, both lawyers and the judge all appeared via Zoom with the proceedings played on a screen in the courtroom where Tomchuk and supporters sat.

At times, an emotional Tomchuk left the courtroom over how the defence characterized evidence.

This included Cummins arguing that it's not proven the injuries to Tomchuk's face were caused by Wren, because there were multiple officers involved in the struggle and the ground was concrete. Garwood-Jones said it was clear on the video that the injuries to the face were caused by Wren.

Outside court Tomchuk said it was disgusting" that Wren will likely not go to jail, adding that if the situation were reversed he would be behind bars.

It was a vastly different court experience than Monday when charges against Tomchuk stemming from that arrest - including resisting arrest and vehicle theft charges - were stayed after the court found his Charter rights were breached. The judge in that case said that in more than 30 years in criminal court she had never seen an arrest like what is captured in the video.

Wren addressed the court and, in an unusual move, recounted in detail his memory of what happened that day. At the time, he was an acting sergeant in the HEAT unit and had been looking for a stolen truck when he got word it was spotted in the east end of Hamilton and that Tomchuk was behind the wheel.

He was part of a team of officers who followed the stolen truck to the gas station where another officer made the call to arrest Tomchuk. He says he ran over and saw his colleagues struggling with a resisting Tomchuk. The truck was still running and door open.

He said his actions were not part of his police training, but said they were out of fear for my fellow officers, myself and the public."

I went a little too far."

The Crown argued the video showed Wren sticking his finger in Tomchuk's bleeding ear after the stomps. But Wren denied this saying he touched his face and then walked away to turn off the truck and then sought medical attention for his toe.

Wren apologized for the hardship" caused to Tomchuk, the Indigenous community and Hamilton police.

Before the hearing could even begin, Cummins expressed concerns about the admissibility of community impact statements submitted from Indigenous leaders and community members.

Pugsley called it a late, breaking objection" and ultimately allowed the statements to be entered as exhibits, noting that community is not restricted to a specific First Nation or geographic area." The judge said he would simply ignore any comments made that were not part of the evidence of the case.

Indigenous court worker Jessica Montana, who has supported Tomchuk throughout the process, said the violent assault on one of our relatives" has a deep impact on the victim, family, friends, Hamilton's Indigenous community and the communities they are connected with.

She said she spoke on behalf of the newly formed Indigenous Consultation Circle, which includes representatives from Indigenous organizations and services that work with Indigenous communities across Hamilton. It was created at the same time as Hamilton police appointed their first Indigenous liaison officer - a position the community had been requesting for decades but that came to fruition following Tomchuk's arrest.

Racial discrimination continues to be deeply ingrained in policing and the justice system," Montana said, pointing to the overrepresentation of Indigenous people in both the justice and child-welfare systems. The assault reinforces fear and mistrust of police.

Court heard that Wren self-identified as Indigenous, saying that he has Metis heritage. However, Aboriginal Legal Services declined to conduct a Gladue report assessment because there was insufficient evidence of his heritage. In an unusual move, the court said it would still consider Gladue principles in sentencing.

Montana said that Wren was unknown to the local Indigenous community, but welcomed him to reach out to the Hamilton Regional Indian Centre.

The case will return at a later date for sentencing.

Nicole O'Reilly is a crime and justice reporter at The Spectator. noreilly@thespec.com