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Windsor police Det. David Van Buskirk was sentenced Wednesday to five months in jail for beating an innocent man two years ago but was granted bail by a second judge while he appeals the sentence.
Van Buskirk pleaded guilty last week to assault causing bodily harm for grabbing and punching Dr. Tyceer Abouhassan - who the officer mistakenly thought was a man who had acted inappropriately with his then 12-year-old daughter.
The assault in the parking lot of the physician's Jackson Park Health Centre office was captured on security video, and showed Van Buskirk approach the victim, grab him and knock him to the ground. Van Buskirk punched Abouhassan three times in the head, according to an agreed statement of facts.
Eight days after the April 22, 2010, incident, the doctor went for emergency surgery for a detached retina.
"It was a short, vicious attack by an out-of-control police officer who did not identify himself," Ontario Court Justice Donald Ebbs told a packed courtroom in which extra chairs were crammed to accommodate Van Buskirk's family and supporters, as well as police officers in plain clothes and members of the media.
Abouhassan was not in court, as he had been for Van Buskirk's guilty plea last week when he apologized to the victim.
Van Buskirk will go to trial June 4 on a charge of public mischief.
On Wednesday, Van Buskirk declined to address the court when given the chance.
"No thank you, your honour," Van Buskirk said.
Ebbs ignored the defence's request for house arrest, leaning more toward the six to eight months incarceration the Crown had asked for. Ebbs also ordered Van Buskirk to provide a DNA sample and pay a $35 victim surcharge, but said he would not impose a weapons ban because none was used during the offence and because a ban would effectively prevent the officer from even having a chance of saving his job.
"Drastic error No. 1," according to Ebbs, was that Van Buskirk investigated an incident involving a family member.
But Ebbs noted that Dr. Abouhassan largely did not match the descriptions Van Buskirk received from his daughter and estranged wife, who were leaving a Jackson Park tennis club when a man in his 50s followed them to their car.
Ebbs said the victim was clearly younger and had different hair.
Ebbs also wondered why the security video did not show any police vehicles showing up to investigate the incident after an ambulance drove off with Abouhassan. As well, Ebbs said it makes sense that assaulting-police charges against Abouhassan were later stayed in court.
"Thank heavens for that," Ebbs said. "It was clear that no such conduct occurred."
Ebbs noted that Van Buskirk, 46, had a distinguished 24-year career as a police officer, and that the court had "a whole book of letters of support" for him, "all of which speak to his good character."
Nevertheless, Ebbs imposed what the defence described as an unduly harsh sentence for a first offender who has done much for the community as a father, coach and police officer.
"We are both saddened and disappointed with the custodial sentence imposed," defence lawyer John Collins said outside court, noting that his client has shown remorse and contrition. "We had rather thought that a non-custodial sentence would meet the ends of justice, including general deterrence and denunciation."
The legal team then moved across the street to Superior Court, where defence lawyers had already filed for a bail hearing in case they would launch an appeal.
This time, Van Buskirk was brought into court and sat in the prisoner's dock, wearing the same dark suit he had on across the street but without the blue tie.
Collins argued that in his sentencing address, Ebbs did not even mention a psychologist's pre-sentence report, which the defence considers a main argument for house arrest.
"Det. Van Buskirk was suffering from considerable personal problems emotionally before the incident occurred," Collins said. "It was a perfect storm of unfortunate personal circumstances."
Van Buskirk had been taken off active duty and placed on desk duty before the incident and was asked to take a three-week leave. Because of personal problems such as the breakup of his marriage and his daughter's diagnosis of muscular dystrophy that later proved false, Collins said Van Buskirk suffered from "psychological distress" that "undoubtedly" affected his judgment, including dysphoria, anxiety, panic attacks and insomnia.
Since his guilty plea last Thursday, Van Buskirk was briefly hospitalized for extreme anxiety.
Crown prosecutor Peter Scrutton argued that an appeal has no merit. Though Ebbs did not specifically mention a psychologist's report, Scrutton argued, the judge referred to Van Buskirk as a decorated officer.
Furthermore, Scrutton said, a jail term is likely in any case.
Superior Court Justice Bruce Thomas, however, said that though "it's an uphill fight" for Van Buskirk to appeal the sentence, he would grant the officer bail given how long it would likely take for an appeal to be heard.
Thomas said an out-of-town judge has to be found, and that an appeal would not likely be heard until the fall - at which point Van Buskirk would have served most of the sentence already.
Thomas also noted that bail hearings are typically heard quickly if a sentence appeal is pending, and that Van Buskirk did not receive special treatment.
Thomas freed Van Buskirk on $5,000 bail, put up by the officer's brother Craig. The judge said Van Buskirk must not contact Abouhassan, but that he may continue residing with his teenage son in the apartment they currently share. As well, he must abstain from possessing or consuming alcohol and faces a weapons ban while on bail.
The bail ends Nov. 1, whether or not the appeal has been heard.
Ed Parent, administrator of the Windsor Police Association, was pleased Van Buskirk won bail but considers the sentence unfair.
"We're disappointed with the sentence," Parent said outside court. "However, hopefully we can attempt to get that corrected through an appeal process."
The judiciary is getting tougher on officer misconduct, says Prof. David Tanovich, head of the Law Enforcement Accountability Project at the University of Windsor law school.
While he pointed to recent cases in Toronto where police officers were sentenced to jail terms for assault, he said putting a cop behind bars is still "extremely rare.
"Times are changing and I think that the judiciary now sees this as a systemic problem, as well as the issue of police officers lying in court. And we are now beginning to see some cases of jail time being imposed."
Of the five-month sentence handed to Van Buskirk, Tanovich said: "This is one of the longest custodial sentences imposed on a police officer found guilty of assault. But it is necessary to deter police officers and to restore public trust."
Tanovich said it is "standard practice" for people to get bail pending appeal. "If they were not granted bail, they would serve their sentence before the appeal is heard and it would then become a moot point."
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05-05-2012, 11:27 AM
