Michael Macdonald, Halifax, N.S. (Canadian Press) – The widow of a Cape Breton man fatally shot in his home by an RCMP officer has filed a civil lawsuit against the force and one of its constables, alleging the officer acted unlawfully when he entered John Simon’s house on the Wagmatcook First Nation.
Simon, a 44-year-old Mi’kmaq who police say was drunk and potentially suicidal, was shot three times on Dec. 2, 2008.
“The RCMP intentionally shot and killed John Simon without legal justification,” the statement of claim says.
The statement of claim, filed Friday with the Supreme Court of Nova Scotia on behalf of Simon’s spouse, Patsy MacKay, alleges the officer acted unlawfully and recklessly when he climbed through a window to enter the house.
The claim says Const. Jeremy Frenette entered the residence and did not have a warrant to do so, and that the RCMP did not follow its internal policies dealing with crisis management and use of force.
Last month, police announced there would be no charges in the case following an investigation by Halifax police. The investigation determined the officer didn’t violate any laws and shot Simon in self-defence.
RCMP spokeswoman Brigdit Leger said it would be inappropriate for the force to comment on potential legal proceedings.
Since the shooting, the force has refused to comment on the case or release the Halifax police report into the matter, citing privacy legislation.
The claim says the RCMP had responded to a 911 call that reported a distressed man alone in a house, where he had the potential to harm himself.
It says Simon was drunk at the time, but that he may have been distraught because the diabetic was likely suffering from an insulin imbalance.
“John Simon was in his residence alone and posed no reasonable threat to anyone,” the statement says. “The RCMP were also told that … Simon would, if given time and left on his own, simply fall asleep unharmed.”
Last month Halifax police briefed the Wagmatcook Band Council and Simon’s family about their findings.
According to a recording of the briefing, obtained by The Canadian Press through the band’s lawyer, Gary Richard, the RCMP said they believed Simon had access to firearms.
On the recording, Halifax police Supt. Michael Burns is heard telling the council and Simon’s family that when two RCMP constables and a supervisor arrived at the house, one of the constables saw Simon through an open window.
Burns said one of the officers entered the home through the window because he thought he could retrieve Simon’s rifle while he was “going to the bathroom … unarmed.”
After the constable entered the home, he identified himself and ordered Simon to lie on the ground, but Simon didn’t comply and grabbed a rifle, Burns said.
“Mr. Simon failed to comply with his command and turned toward another area of the residence away from the police officer,” Burns says on the recording. “The constable … was subsequently confronted with Mr. Simon, who was in possession of a rifle.”
The statement of claim makes no mention of firearms.
Neither the allegations in the claim nor the account given to the council and Simon’s family by the RCMP have been tested in court.
As well, it says the officers – including Const. Jason Bernard and Staff Sergeant Archie Thompson – were aware that a police emergency response team was on its way from Halifax, but Frenette decided to enter the house anyway.
At one point, Bernard spoke with Simon in the Mi’kmaq language, but Simon told the officers to leave, the claim says.
“Simon at no time threatened anybody, and at no time invited the RCMP into his residence,” the claim says.
“There were no extraordinary circumstances that would reasonably permit Const. Frenette to enter the … residence without a warrant.”
The claim also says the officers had the option of calling the emergency response team in nearby Sydney, N.S., but opted for Halifax, which is a three-hour drive away.
The plaintiffs – which include Simon’s mother – are seeking unspecified compensation for loss of financial support, loss of companionship, mental anguish, pain and suffering, legal costs and punitive damages.
Simon’s family is calling for a public inquiry and for the disclosure of the Halifax police report.
They are scheduled to meet with Nova Scotia Justice Minister Ross Landry on Tuesday.
Simon’s widow sues RCMP over his death
LAURA FRASER Cape Breton Bureau
Sat. Jan 16 – 4:46 AM
The widow of a Cape Breton man shot by an RCMP officer has filed a lawsuit against the Mounties saying her husband would be alive if Const. Jeremy Frenette had not illegally entered her home and confronted the distraught man.
John Andrew Simon, 44, died early on Dec. 3, 2008, in Victoria County Memorial Hospital in Baddeck, hours after he was shot several times inside his Katie Lane home on the Wagmatcook First Nation.
The RCMP and Halifax Regional Police took more than a year to release limited information from a report into his death, and the report cleared Const. Frenette of any criminal wrongdoing.
After learning some of what the report contained, Patsy MacKay told The Chronicle Herald she felt she had to go to court to get answers about why her common-law husband was shot. Her lawyer planned to file the lawsuit with Nova Scotia Supreme Court on Friday.
“I hope to see some justice done for John,” Ms. MacKay said in an interview Friday. “It’s the only avenue I have left.”
Ms. MacKay and Susan Bernard, Mr. Simon’s mother, are the plaintiffs named in the suit, and the defendants are Const. Frenette and the RCMP themselves, as represented by the Attorney General of Canada.
A copy of the lawsuit obtained by The Chronicle Herald describes the events from Ms. MacKay’s understanding. None of the allegations have been proven in court.
Baddeck RCMP received a phone call on Dec. 2, 2008, saying that Mr. Simon was home alone, intoxicated and threatening suicide.
“He posed no reasonable threat to anyone,” the statement of claim says.
The aboriginal fisherman, a diabetic, hadn’t eaten properly in days, Ms. MacKay said in an interview. She prepared his two favourite meals to try to entice him to eat.
She left the house and didn’t see her husband alive again. When police eventually allowed her back inside the home, after her husband had died, she found the food untouched.
Three RCMP officers arrived at Mr. Simon’s home that night and learned from family and friends that he might be suffering from an insulin imbalance, the statement of claim says. Friends said the fisherman could become upset and erratic when he strayed from his insulin schedule.
“The RCMP were also told that (Mr.) Simon would, if given time and if left to his own (devices), simply fall asleep unharmed,” the statement of claim says.
But Const. Frenette, a junior Mountie, chose to illegally enter the residence, the document says. The lawsuit alleges he did so without a warrant or just cause.
The officer shot the fisherman three times soon after entering the home, the statement of claim says.
Ms. MacKay and Ms. Bernard allege RCMP negligence resulted in Mr. Simon’s death.
“The RCMP shot John Simon, rather than using other less dangerous or non-lethal means to subdue him, if subdual was necessary,” the statement of claims says. “The RCMP created the circumstances in which John Simon was shot and killed by acting precipitously, recklessly and without legal justification.”
Ms. MacKay says she’s not concerned about facing the RCMP across a courtroom.
“I’m very focused,” she said. “Justice will have to be done. I’ve just got to have faith.”
The plaintiffs are asking for compensation for loss of future financial contribution, loss of companionship, mental anguish, pain and suffering, and funeral costs, and they are also seeking punitive damages.
Sgt. Brigdit Leger, a spokeswoman for the RCMP in Nova Scotia, said she did not believe the force had yet received a copy of the document.
“We’re not even aware of the lawsuit right now,” she said. “Once we’re made aware of it, we’ll deal with it. But it would be inappropriate to comment about something that may go before the court.”
The RCMP have said that Const. Frenette has been relocated but haven’t said to where.
Sgt. Leger would not say whether he has returned to active service or has been assigned to an office position.
“Again, all I can say is that he’s still an employee and he’s still working for the RCMP,” she said.
A court date to hear the lawsuit has not been set.