Ontario judge rules drunk police officer not guilty of sexual assault, touching was accident

Waterloo Regional Police Service Const. Eric Schnarr has been found not guilty of sexual assault, with the judge in his case ruling while the officer did touch the complainant, he was highly intoxicated and there's reasonable doubt about whether the officer intended to do it.

Schnarr's charge stems from an incident on Oct. 14, 2017, at the Concordia Club in Kitchener during Oktoberfest when Schnarr was off duty.

He was later charged with sexual assault after an investigation by Ontario's Special Investigations Unit.

On Wednesday morning Justice George Orsini handed down the not guilty verdict in a London, Ont. courtroom.

"We're very pleased for Eric. It's a good day for Mr. Schnarr. It's a good day for justice. He has always maintained his innocence," said Danielle Robitaille, Schnarr's lawyer. 

"It's been year and a half of a cloud of suspicion hanging over him and to be cleared is a really important part of restoring his name, his good name in the community, and he looks forward to that and the process of rebuilding." 

'Using his power to intimidate'

During the trial the complainant, whose identity is protected by a publication ban, testified she was at the Concordia Club for an Oktoberfest event when she noticed somebody approach her. 

She said Schnarr then cut through a group of people, moved towards her and touched her inappropriately.

"He kind of leaned in towards me and he touched me with his left hand from just above my knee, inner thigh, left," the complainant testified, adding it was half an inch from her vagina. 

The complainant said Schnarr whispered, "What? You don't like cops?" as he touched her. 

"I felt like it was more like a statement — felt like it was almost like using his power to intimidate," the complainant testified. 

She then said she was "in shock" and "took a step back." 

The complainant identified the man as Const. Eric Schnarr. She said after Schnarr touched her, he walked toward a group of in-uniform police officers. 

Touching 'not deliberate'

In his verdict on Wednesday, Justice George Orsini found that the touching was not deliberate, noting that multiple people testified Schnarr was highly intoxicated at the time.

He pointed to testimony from witnesses who said Schnarr couldn't walk through a crowd and was moving his hands while talking. The complainant and her friends also said Schnarr was unsteady, he said.

Orsini said the complainant described the touching as a "quick brush" and that based on her testimony, there was established reasonable doubt.

The judge did however emphasize that the complainant was credible and didn't embellish anything in her testimony.

Complainant didn't initially plan to report

The complainant said she initially didn't plan to report the incident because Schnarr was a police officer "so already that was intimidating" and she felt that officers would not take her "word over a fellow police officer."

One of the complainant's friends testified that after the complainant told her what had happened, she took a photo of Schnarr at the festival. 

The complainant's friend said she related the incident via Instagram to another mutual friend. The court heard that this second friend was married to a WRPS officer. 

When that officer found out about it the next day, he told his wife he needed to report the incident. The allegations eventually reached Ontario's Special Investigations Unit, who recommended charges.

The officer who came forward, and who testified at the trial, says he knew Schnarr because they were on the "same team." 

'He had been drinking' 

Justice Orsini heard from nine witnesses during the trial, including police officers who were on duty at the time. 

Officers who were on duty the night of the alleged incident testified that Schnarr had been drinking. 

Alison Sproule, another WRPS officer who was on duty, testified that Schnarr was "ejected" that night for "having too much to drink." 

Sproule said Schnarr was "intoxicated by alcohol," had his "speech slurred" and had an "odour of alcohol." Sproule said after being escorted outside, Schnarr told her to "let him jump over the fence" that was approximately seven feet tall and then tried to run toward the fence before she pulled him back. 

Trevor Batchelor, an officer who was on duty that night, said he gave Schnarr a ride home. Batchelor said Schnarr was slurring in the vehicle.

No proof of intent, lawyer says

Schnarr was represented by lawyer Danielle Robitaille, who argued the Crown couldn't prove the touching was intentional. 

Robitaille argued evidence from witnesses, including a security guard at the Concordia Club, indicate that Schnarr's motor skills were "off balance." 

She reminded the court that all the defence needs to do is "point to a reasonable doubt" and not "establish accident."  

Robitaille said the touching occurred when Schnarr was "in movement," transiting from "point A to point B." She said at the time of these events, Schnarr had a loss of co-ordination and motor control. 

She argued the floor of the Concordia tent was uneven, which "caused instability" and that someone's "carelessness" doesn't suffice as assault. 

'No crime in drinking too much on Oktoberfest'

Most importantly, Robitaille argued that the complainant had "reservations and doubts" about whether the touching was 100 per cent intentional, which "causes greater uncetainty."

In the complainant's statement to the SIU, she rated the incident between 8.5 to 9 for intentionality, rather than a full 10, Robitaille argued. 

She said that left a "15 per cent chance" that the touching was not intentional. 

She said the Crown has proved beyond a reasonable doubt that Schnarr overindulged in alcohol on Oct. 14, 2017, but there is "no crime in drinking too much on Oktoberfest." 

Crown reviewing case

Crown attorneys Jeff Nicol and Katie Beaudoin prosecuted the case. They declined to comment on the verdict, telling CBC News they will review the case to see if there's room for an appeal.

During the trial, Nicol argued there was "no doubt" the touching was "targeted" and "intentional."  

Nicol said during the trial that to claim the incident was an accident would be to engage in "conjecture and speculation."