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OPP brass fumbled misconduct probe into jailhouse assault: retired sergeant

A retired Ontario Provincial Police (OPP) sergeant is sharing the story of how he tipped off the provincial force to the existence of a troubling video of a jailhouse assault by an officer, in a frustrating experience he says demonstrates a blind spot in police accountability.

But Ret. Sgt. Robin Moore said he was told in a letter by OPP brass there wasn’t even misconduct – even though years later a judge would convict the officer, Bailey Nicholls, of a crime: assault causing bodily harm.

“It was actually surreal. It was hard to believe that this was going on,” Moore told CTV News in an interview, where he went public for the first time about the lengthy ordeal.

The saga began on Sept 7, 2019, when Const. Bailey Nichols can be seen on surveillance video grabbing a woman arrested for public intoxication by the neck and shoving her head into cell bars at the Orillia detachment.

The incident wasn’t reported to the police watchdog, the SIU, at the time, even though the woman was bleeding and needed five staples.

The OPP have said that the woman got medical assistance and extent of her injuries weren’t clear to officers at the time, and have said subsequent internal investigations didn’t get the information necessary to report to the SIU or to allege misconduct.

Moore said he heard about the video from a contact inside the police service, Const. Charles Ostrom. Ostrom has already told CTV News about how harmful it was for him to see the video, which he said didn’t match incident reports. Ostrom said he tried to report the incident internally, but it didn’t go anywhere.

“There is a fear of reprisals in that organization, if you speak out,” Moore said. “So he would have been punished. But they couldn’t touch me.”

Moore said he e-mailed OPP Commissioner Thomas Carrique about the incident in April 2020, concerned that the incident had been badly handled and was being brushed under the rug.

“That’s a crime scene that should have been locked down immediately. And then the notifications made from there,” he said.

About a month and a half later, he got a letter from the professional standards bureau commander, Chief Supt. Marty Kearns.

“I can advise that in my capacity as the Bureau Commander of the Professional Standards Bureau, a review of this incident has been conducted and I am satisfied that all officers involved did not commit misconduct,” Kearns wrote in the letter, dated May 29, 2020.

Kearns has since been promoted to deputy commissioner of the OPP.

When CTV News asked the OPP how Kearns came to that conclusion, spokesperson A/S/Sgt. Robert Simpson said, “The initial decisions made regarding misconduct were based on the information that was available at the time… The information regarding the severity of the injury did not meet the threshold for SIU notification.”

Simpson said at that point, the SIU notified the SIU regarding the incident, but the agency did not invoke their mandate.

Moore believed the short timeline in their response was a sign investigators weren’t taking the case seriously so he also turned to the SIU. By July, the agency received information about the severity of the woman’s injuries and invoked its mandate at that point.

“The OPP was not provided this information,” Simpson said.

It’s not clear how much more information a police force would need beyond the video to find a reason to probe more deeply, said University of Toronto Criminologist Patrick Watson.

“It has to be a very, very high threshold of threat for a police officer to use that kind of hold or restraint on an individual,” Watson said.

Watson said the case demonstrates the need for an independent agency to investigate, which the province has in the form of the SIU.

“[The OPP] believed it reflected reasonable conduct. And I think this does raise issues for concern about the OPP interpretation of events versus a citizen’s interpretation of events,” he said.

The criminal case isn’t over – Nicholls has said she feared for her safety in the moment, and the Ontario Provincial Police Association has signalled its intention to appeal.

OPP Const. Bailey Nicholls leaves the courthouse in Collingwood, Ont., on Thurs., April 4, 2024. (CTV News/Mike Arsalides)

The OPP says because the SIU invoked its mandate, it will review the incident, and isn’t ruling out further discipline for any officer involved.

Moore said he thinks the OPP brass should have seen earlier what he saw in that video – and what a judge saw too.

“They were trying to make it go away. They wanted me to go away, and I wasn’t going away,” he said. 

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