A Stayner man arrested at a 'freedom rally' last year near downtown Barrie says he remains “pro-police” despite filing a misconduct complaint regarding the events surrounding his arrest by the Barrie Police Service.
Robert MacFarlane, now 37, was arrested and charged with causing a disturbance and resisting arrest after confronting organizers at a May 2021 event at Centennial Park after allegedly making statements urging the crowd to return to Meridian Place to remove the barricades placed around the public square, an accusation he has consistently denied.
MacFarlane says he feels “vindicated” after an internal police review, stemming from his complaint, determined his arrest that day was “unlawful.”
MacFarlane said he filed his complaint after speaking with Sgt. Terry Cuff, an investigator with Barrie Police Service’s Professional Standards Unit (PSU), adding it was determined through that conversation the best place for him to argue his concerns would be in court. MacFarlane’s first court date was scheduled for June 8, 2021, he noted, adding he was informed of the Crown dropping the charges on Jan. 20, 2022. BarrieToday has confirmed through court records that the charges were dropped.
However, MacFarlane says he refused to attend the final court date "out of protest."
Meanwhile, the 49-page Barrie Police Service (BPS) report — dated Sept. 22, 2022 and provided by MacFarlane — outlines his complaints, which allege that Barrie police officers acted unlawfully in his arrest, used unnecessary force and that an officer acted in a disorderly manner.
“The salient issue of this portion of Mr. MacFarlane’s complaint centres on his contention that BPS officers did not have the lawful authority to use force against him, including the deployment of a CEW (conducted energy weapon), during his arrest on May 1, 2021. Mr. MacFarlane opined that because his arrest was unlawful, so, too, was the use of force in effecting that arrest,” states the report.
“It should be noted that because Mr. MacFarlane’s arrest was deemed to be unlawful, the resulting use of force by the involved officers would also be considered unlawful. This conclusion is supported by the underlying requirement in Section 25 (of the Criminal Code) stipulates that the police action that leads to the use of force must itself be lawful," the report adds.
The report noted it's "clear" that the involved officers "misapplied" the relevant sections of the Criminal Code to establish that MacFarlane was causing a disturbance or breaching the peace, adding it was also clear that the officers' decisions were based upon a perceived need to maintain order, among a large crowd, while dealing with an uncooperative person, and that because of this misapplication of authority, the officers’ subsequent use of force against MacFarlane was unlawful.
“Based on a review and analysis of all information, the PSU investigation has determined that there is sufficient evidence to establish that misconduct occurred in relation to the officers making an unlawful arrest. As a result, with respect to this allegation, the conclusion is substantiated,” states the report.
The Barrie police PSU also established that officers did use “unnecessary force against a prisoner,” as alleged by MacFarlane, noting the responding officers did not have the requisite authority to arrest MacFarlane and, as such, did not have the power to use force in conducting the arrest. In addition, the officer who discharged the CEW did not have the authority to do so.
In his report, Cuff explained the use of the CEW by Sgt. Talarico against MacFarlane had been analyzed and addressed through an independent review completed by Const. Book, an OPP officer assigned to their training academy. That review and analysis concluded that "there does not appear to exist any policy, procedure, legislation, or training that supports the use of the conducted energy weapon on Mr. MacFarlane at the time it was utilized."
“As a result, it can be reasonably concluded that the use of force by each of the involved officers – Sgt. Talarico, PC Cormier and PC Knight – in effecting the arrest of Mr. MacFarlane was unlawful. Furthermore, it can also be reasonably concluded that the deployment of the CEW by Sgt. Talarico was also unlawful and unnecessary. As a result, the officers’ actions constitute misconduct under the PSA (Police Services Act).”
MacFarlane’s complaint that officers acted in a “disorderly manner,” however, was determined to be unfounded.
“Sgt. Talarico did not utter an inappropriate and unprofessional comment in the presence of the complainant following his arrest on May 1, 2021. Based on a review and analysis of all information, the PSU investigation has determined that there is insufficient evidence to establish that misconduct occurred in relation to the officer acting in a disorderly manner. As a result, with respect to this allegation, the conclusion is unsubstantiated," the report states.
Barrie police communications co-ordinator Peter Leon confirmed that, in accordance with the legislation, the department has conducted its investigation and the report is now with the Office of the Independent Police Review Director (OIPRD) for further review.
“Until that review is completed, we will not be in a position to provide any comment," Leon said.
An OIPRD spokesperson said that, due to confidentiality provisions in the Police Services Act, the director cannot respond to questions about specific complaints, but explained that when an investigation into a referred complaint is completed, the complainant will receive a copy of the report and has the option to request that the director review it.
“Upon review of the investigation and any submissions from the complainant, the director could vary the investigative findings, direct further investigation, or determine that the investigation and findings were reasonable," the spokesperson said.
After learning of the results of the internal police review, MacFarlane said he felt justified in his behaviour.
“It’s been two years now of me telling them ‘til I was blue in the face that it was unlawful and literally quoting the legal stuff and the arguments… and it’s only because they were forced to consider them… that they gave them anything more than a one-second thought,” he said.
“I basically threw a hissy fit because they refused to consider if the arrest was lawful or not. I forced them to consider the lawfulness of the arrest," MacFarlane added.
MacFarlane pointed to what he called several "important case-law decisions" that have occurred in recent years — including Fleming v. Ontario, where the court ruled on the limits of police powers to arrest individuals in order to prevent others from breaching the peace. The court unanimously decided that police officers "did not have the authority to arrest someone engaging in lawful conduct to prevent a breach of peace by others."
"I have been arrested three times because of that law. The police don’t understand that the law has changed," MacFarlane said. "They have the belief they can arrest people to prevent the breach of the peace when they’re not breaking any laws and that’s exactly what happened to me. … There’s a big problem with that law and the way the police enforce it.”
After two years of lawyers, police and investigators telling him he was wrong, seeing the outcome of his claim has left MacFarlane feeling “extremely vindicated." And although the investigator only agreed with two of his three claims, he insists he remains “pro-police.”
“They have a very tough job to do and I added to that that day, but they still need to respect our laws and I do believe it is a training and legislative issue and that the law needs to be reworded, because it is unconstitutional,” he said.
“I don’t think any of these officers, except maybe the one who tazed me, deserve any kind of repercussions. The fault was with training and police responding to these case laws," MacFarlane added.
"The police thought they were in the right. I can sympathize and empathize with where they’re coming from, but we expect better of the police. For them to use force in that manner is appalling. Now that it’s been determined to be unlawful, I can’t fathom the police being OK with arresting somebody immediately after they say they’re not breaking the law."
