Diagolon Gun Grab, Part 5: Carmichael’s 2013 Incident Of Assaulting A Prisoner

The recent focus on this site has been the Gary Schill case, dubbed the “Diagolon Gun Grab”. However, some information about the officer involved, Ernest Carmichael, needs to be shared as well. Back in 2013, the Special Investigations Unit was called over allegations of a police officer committing assault.

On the criminal end of things, Carmichael pleaded guilty to assault and received a conditional discharge. He was placed on probation for a year, meaning that he won’t have a record afterwrds.

As for the administrative side, Carmichael faced a count of “unnecessary force against a prisoner”. Now, this was an internal complaint within the police itself. This means that despite the guilty plea, he didn’t even lose his job. He admitted to kicking a prisoner in the head “2 or 3 times”, but wasn’t fired.

What ultimately happened to him was a 9 month demotion from 1st Class Constable to 2nd Class Constable, and 100 hours of community service.

This demonstrates that Carmichael has shown very poor judgement, but was allowed to keep his job which is considered a “position of trust”. Yes, it was a long time ago, but worth mentioning.

The case doesn’t seem to be cited on CanLII, but the decision is available nonetheless.

The agreed set of facts:

1. Constable Ernest Carmichael #1950 has been a member of the York Regional Police since April of 2009. He has held the rank of First Class Constable since August of 2012.
2. On April 21, 2013 at approximately 9:45 p.m., members of York Regional Police attended the public complainant’s residence to investigate an impaired driving complaint regarding her son. Her son had pulled into the driveway a few minutes earlier.
3. The public complainant’s husband went to his front door and saw two uniformed police officers talking to his son. Mr. Horsak stepped outside and told the officers he wanted them off his property, as he believed they did not have cause to be there.
4. The officers told Mr. Horsak that his son was under arrest and was going to be charged with impaired driving. Mr. Horsak replied that his son had just come home and was not impaired, and again told the officers to get off his property.
5. While this conversation was taking place, the son ran inside the house. The two officers followed the public complainant’s son inside the home. The son then ran upstairs and locked himself inside a bathroom. The officers remained just inside the entrance of the house.
6. Mr. Horsak told the officers to get out of his house and again to get off his property. The police did not leave the home and instead used their portable radios to request the attendance of more officers at the scene.
7. Four more police officers, including PC Carmichael, arrived at the home a short while later and also entered the residence. Mr. Horsak pushed one of the officers, not PC Carmichael, on the chest to try to keep him from moving further into the house. A struggle ensued and two officers, PC Ron Peever #696 and PC Mark Kowalchuk #1823, took Mr. Horsak to the floor.
8. Mr. Horsak ended up face-down on the floor in a prone position. One officer attempted to gain control of Mr. Horsak’s left arm while another officer attempted to gain control of his right arm, which were both under his body, in an attempt to handcuff him. According to Mr. Horsak, his arms are chronically susceptible to being dislocated, and he was trying to prevent this from occurring. However, he did not tell this to the police officers.
9. While the two officers were attempting to subdue Mr. Horsak on the floor, PC Carmichael approached him and kicked him in the head two or three times. The officers were eventually able to place Mr. Horsak in handcuffs, then escorted him out of the house and placed him in the back of a police cruiser.
10. On May, 20 2014, PC Carmichael appeared before the Honourable Justice Armstrong in the Ontario Court of Justice (Criminal Court). At that time, he entered a plea of guilty to the charge of assault contrary to section 255 of the Criminal Code of Canada. PC Carmichael received a conditional discharge and was placed on probation for a period of 12 months subject to terms, including.

(a) That he not associate or communicate directly or indirectly with Mr. Horsak except as may be required in the course of his duties as a police officer; and
(b) That he perform 100 hours of community service by April 15, 2015

The terms of Carmichael’s probation still allowed him to associate with the victim as long as it was “required in the course of his duties as a police officer”.

Disposition:
.
In light of the seriousness of these allegations and bearing in mind all the evidence placed before me, Constable Ernest Carmichael #1950 will be demoted from his position of First Class Constable to Second Class Constable immediately for a period of nine (9) months and will return to First Class Constable upon the completion of the nine months at the Second Class Constable level pursuant to Section 85 (1) (c) of the Police Services Act.

Further, you will receive remedial training with the Policies of the York Regional Police Service as it relates to Use of Force and any other Policies as required and deemed necessary by your immediate supervisor in consultation with Senior Command of the York Regional Police Service.

In reading through the submissions on sentencing, it appears that these sort of complaints often bring fairly lax consequences.

I have considered the five (5) cases presented to me by Counsel. As I communicated earlier in this disposition the cases presented to me are not on point, however they were instructive for disposition considerations.

In Schofield vs. Metro Toronto Police (1994) the Commission stated:

“Consistency in the discipline process is often the earmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with in earlier occasions. “

It’s rather disturbing to see the Adjudicator go on and on about the public needing to have confidence in law enforcement. But this decision, and the overall pattern, seem to do anything but inspire confidence.

Despite not being convicted of a crime, Carmichael was able to have Schill’s firearms taken away for things he posted online, homemade ammunition crafting, and largely speculative claims about a “militia”. Meanwhile, Carmichael admits to assaulting a prisoner, and gets to keep his service revolver (a restricted weapon), and his job (a position of trust). Interesting standards.

Final fun fact: Carmichael was successful in the Application to get Schill’s gun licence suspended (in large part) because of his association with Jeremy MacKenzie. At his hearing for excessive force, Carmichael’s Defence Counsel was named William MacKenzie. Small world, it seems.

Parts 1, 2, 3 and 4 of the series are available as well.

Thank you to the reader who forwarded this decision. It does give some much needed balance and context for what’s been going on.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

CARMICHAEL ASSAULTING A PRISONER:
(1) Ernest Carmichael Disciplinary Hearing Penalty Decision 25.07.2014
(2) https://toronto.ctvnews.ca/siu-lays-assault-charge-against-york-region-police-officer-1.1392108
(3) https://www.thestar.com/news/gta/york-police-officer-charged-with-assault/article_d1b43f97-a077-59b4-8603-747a94b76170.html

PEOC HEARINGS:
(1) https://publicorderemergencycommission.ca/
(2) PEOC Report, Volume 1: Overview
(3) Public Order Emergency Report Volume 1 Overview
(4) PEOC Report, Volume 2: Analysis (Part 1)
(5) Public Order Emergency Report Volume 2 Analysis Part 1
(6) PEOC Report, Volume 3: Analysis (Part 2)
(7) Public Order Emergency Report Volume 3 Analysis Part 2 Recommendations
(8) PEOC Report, Volume 4: Process and Appendices
(9) Public Order Emergency Report Volume 4 Process And Appendices
(10) PEOC Report, Part 5: Policy Papers
(11) Public Order Emergency Report Volume 5 Policy Papers

MOSLEY DECISION:
(1) https://www.canlii.org/en/ca/fct/doc/2024/2024fc42/2024fc42.html#par41

CASELAW ON REVOKING FIREARMS PERMITS:
(1) R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.J. No. 50, at para 12, 16, 17, 18
(2) British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, at para 25.
(3) R. v. Christiansen, 2006 BCCA 189, at para 7.
(4) R. v. Bokhari, 2009 ONCJ 691, at para 10, relying on R. v. Day, [2006] O.J. No. 3187 (S.C.J.) and R. v. Morgan, [1995] O.J. No. 18 (Ont.Ct.(Prov.Div.)).
(5) R. v. Peacock-McDonald, 2007 ONCA 128, at para 40
(6) R. v. Douglas, 2013 ONCJ 649, at paras 45, 57.
(7) R. v. Mourtzis, 2015 ONCJ 74, at para 25.
(8) R. v. Roman, 2018 ONCJ 344, at para 89.
(9) R. v. Hurrell, 2002 CanLII 45007 (ON CA), [2002] O.J. No. 2819, at para 48.
(10) R. v. Christiansen, supra, at para 7.
(11) Fahlman, supra, at para 25.
(12) R. v. Peacock-Macdonald, supra, at para 40.
(13) R. v. Roman, supra, at para 89.
(14) R. v. Wiles, 2005 SCC 84, at para 9.