CREDIT: Pat McGrath, The Ottawa Citizen Ottawa police Const. Shane Henderson's actions are under investigation.

A Montreal man has filed a civil suit against two Ottawa police officers after they were caught on videotape beating him during an arrest.

The officers, Const. Shane Henderson and Const. Tricia Nesbitt, are also under investigation by the force's professional standards section, but they continue to work their normal duties, a police spokeswoman said.

The investigation started after Danny Gauthier made a complaint about what the officers did to him. After viewing the video, Ottawa's Crown attorney's office also withdrew charges police laid against Mr. Gauthier and referred the matter back to the police for further investigation.

The beating was caught on video at a Tim Hortons location at 115 Montreal Rd. in the early morning hours of Aug. 11, 2004.

The civil suit, filed by Ottawa lawyer Bruce Simpson, claims the officers lied in their reports on the incident because they didn't know they were being videotaped, and that the video shows out-of-control officers abusing their positions of trust and authority.

"The assault by Constable Henderson , which was assisted by Constable Nesbitt, was a vicious, sadistic, unprovoked assault," the claim says.

"Both (officers) wrote notes of the event shortly afterwards in which they consciously and deliberately lied about what had occurred."

These claims have not been proven in court, but Mr. Simpson says he's confident they will be.

"I think they should be criminally charged," Mr. Simpson said, for what he labelled "a gratuitous assault."

Mr. Gauthier, 43, a single father of two, was in Ottawa on a business trip for his sales job. On the night of Aug. 10, 2004, he met up with some friends and had a few drinks at a bar. At about 1 a.m., he went to the Tim Hortons for food and coffee before planning on returning to his hotel, which was across the street.

He ate the food, but fell asleep at the table before he finished his coffee.

The video, which doesn't include audio, shows Mr. Gauthier sleeping at the table for about 10 minutes when Const. Nesbitt entered the shop and immediately looked at him. She went to the counter, ordered coffee and food, and paid. During this time, she glanced at Mr. Gauthier two more times.

She pointed to Mr. Gauthier and appeared to speak to the coffee shop staff about him. Then she pulled out her notebook and wrote something.

At that point, she went over to Mr. Gauthier's table and woke him up by nudging either him or the table with her foot.

For the next few minutes, the officer and the man conversed. He got up and spoke to the employees, cleaned up his table, and drank coffee while engaged in conversation with Const. Nesbitt.

During this conversation, the officer spoke into her radio, and Const. Henderson arrived a short while later.

Then with the two officers standing between Mr. Gauthier and the exit, the three engaged in conversation.

Twice, Mr. Gauthier, attempted to go past the officers toward the door. Twice, Const. Henderson prevented the man from leaving.

Then the officers motioned for Mr. Gauthier to turn around and put his hands on the counter. Instead, he did a slow 360-degree turn and walked into Const. Henderson, who put him in a headlock and flipped him to the ground face down. The officer landed heavily on the man's back.

With Const. Henderson on the man's back, Const. Nesbitt handcuffed him while leaning on his legs.

During the cuffing, Const. Henderson punched Mr. Gauthier several times in the side and back of the head, and the officer appears to slam the man's face off the floor.

Const. Nesbitt also hit the man once.

The confrontation is also described in a synopsis of events the police prepared for the Crown. In the synopsis, Const. Nesbitt said the employees of the store requested Mr. Gauthier be awakened and asked to leave.

When she woke him, she said, he smelled like alcohol and was slurring his speech.

After Const. Henderson arrived, the officers said Mr. Gauthier refused to answer any questions and would not tell them who he was, if he drove there, or if he had a vehicle outside.

However, they said he told them he was going to drive back to Montreal immediately.

"Fearing the vehicle outside was his and due to his lack of co-operation and intoxication, he was arrested for intoxicated in public," the synopsis said.

"The accused resisted arrest (by) pulling away from officers and pushing Cst. Henderson. The accused was grounded and handcuffed.

"During this, he swore and shouted inside the restaurant."

After cuffing, he was unco-operative while being led to a cruiser and "he once again was grounded." At the police station, "he continued to glare at officers in attempts to scare them."

Mr. Gauthier tells a very different story. He says he woke to Const. Nesbitt asking him what he was doing there, and telling him he was intoxicated.

He told her he wasn't and said he'd like to go back to his hotel room across the street.

He said she continued to allege he was drunk, and that the employees wanted him to leave, but when he tried to leave, Const. Nesbitt told him to stay in the shop.

"I kept asking to leave, and she kept saying, 'No'," he said.

After Const. Henderson arrived, Mr. Gauthier says he continued to ask to leave, and they continued to ask him who he was and what he was doing. He says he continued to tell them he just wanted to go to the hotel.

Then, he says, the officers told him he was under arrest for being drunk in public. At that point, he said, he tried to comply with what they were telling him to do and the attack started.

"He just started hitting me like a madman," Mr. Gauthier said.

No statements were taken from the employees in the shop.

Mr. Gauthier denies he was drunk. The video confirms that he was not staggering and at no time did he appear to take any physical action towards the officers.

Despite this, Mr. Gauthier was arrested and charged with public intoxication, resisting arrest and three counts of causing a disturbance.

Though the officers' synopsis alleges Mr. Gauthier was "unsteady on his feet" and "resisted arrest (by) pulling away from officers and pushing Const. Henderson," the video provides no evidence of this.

Mr. Gauthier was held in the Elgin Street police station for six hours and, during this time, he says police denied his requests for medical attention.

After signing a promise to appear in court, he was released, and he immediately had a friend take pictures of his injuries. Then, he went to the Montfort Hospital for treatment.

The photos show black eyes, swelling in his eyes and nose area, and an injury on his elbow.

"No human being should go through that," Mr. Gauthier said yesterday. "These people are supposed to be protecting us, not attacking us."

He said when Const. Henderson flipped him and drove his face into the floor it felt like a 500-pound weight on his back, but that what was worse was the apparent pride the officer took when he brought him back to the station.

"He had a big smirk on his face, like he brought in a trophy," Mr. Gauthier said. "One cop after another came into the cell block to see how my face looked."

Mr. Gauthier told his initial defence lawyer, Sally Clarke, about the attack, and she attended the Tim Hortons to interview employees. She didn't get any statements, but employees alerted her to the existence of the tape.

She subpoenaed the video and obtained a copy, but before she could approach the Crown with the new evidence, she quit the practice of criminal defence law and handed over the file to Bruce Simpson last winter.

Mr. Simpson viewed the video, compared what it showed to the officers' reports about what they said happened, and he immediately requested a meeting with the Crown's office.

Deputy Crown attorney Louise Dupont viewed the video, reviewed the police file on the incident, and ordered that the charges against Mr. Gauthier be withdrawn.

"It became obvious after looking at the video that the charges were not made out," she said yesterday. "It was quite clear that we would not have been able to get a conviction, and that it was not in the public's interest to continue the prosecution."

Not only did they pull the charges, the Crown also went one step further.

"The Crown's office referred the matter to the Ottawa police for further investigation," Ms. Dupont said.

Ottawa police Staff Sgt. Monique Ackland confirmed yesterday that Mr. Gauthier made a public complaint about the incident, and that the officers actions are under investigation by the force's professional standards unit.

She said she couldn't comment on the video or the civil suit except to say the force would be defending its officers, who remain on active duty patrol in Ottawa.

The civil suit names the Const. Henderson, Const. Nesbitt and the police services board as defendants. City of Ottawa lawyer Jeremy Wright has filed a notice of intent to defend the action, but a full statement of defence has not been submitted.

The City's chief lawyer, Jerry Bellomo, said Mr. Wright is currently interviewing witnesses and other people involved in the case.

"It is our intention to file a defence," Mr. Bellomo said. "Until we do make a statement of defence, we really can't make comment."

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The officers, Const. Shane Henderson and Const. Tricia Nesbitt, are also under investigation by the force's professional standards section, but they continue to work their normal duties, a police spokeswoman said