The Special Investigation Unit charged Constables Erin Cavan and Jordan Blonde with assaulting a man in their custody last May.
The CBC has learned the alleged victim — 32-year-old Ismael Omar Awaleh — is being held at the Ottawa Carleton Detention Centre by the Canada Border Services Agency (CBSA), on an outstanding order for his removal from Canada to Somalia.
His lawyer, Paul Lewandowski, hopes Awaleh will not be deported before the officers face the assault charges in criminal court. But, he adds, he's not excluding that possibility.
SIU investigate alleged assault on May 1
On April 29, Awaleh was accused of assaulting a woman he knew, as well as breaching the conditions of a previous conviction.
Two days later, Cavan and Blonde arrested Awaleh, and added new charges, including:
- One count of assaulting Blonde.
- Possession of crack cocaine.
But something happened that same day at the Queensway Carleton Hospital that caused the officers to become the focus of a probe by the Special Investigation Unit (SIU), which investigates reports of death, serious injury or sexual assault involving police officers in Ontario.
On Nov. 3, the two officers were formally charged with assault, linked to Awaleh being strip-searched at the hospital on May 1.
Jasbir Brar, an SIU spokeswoman, told the CBC: "The director of the SIU, Tony Loparco had reasonable grounds to believe the two officers committed a criminal offence against [Awaleh.]" She added the case now gets turned over to the Crown for prosecution.
Const. Benoit Soucy, speaking for the Ottawa Police Service, says both officers remain on active duty.
Awaleh has immigration board hearing this week
Awaleh has been in detention since May, according to his lawyer, Paul Lewandowski. Initially, Awaleh served jail time after pleading guilty to criminal charges against. But, subsequently, he was placed in the custody of the CBSA.
He's being held indefinitely at the Ottawa detention centre while authorities consider his deportation. He hasn't been in Somalia since he arrived in Canada as a refugee when he was four years old.
The impact of the SIU charges on his removal process from Canada is unclear.
The SIU will not comment further on the case.
Awaleh has an Immigration and Refugee Board (IRB) bail hearing this week. His lawyer plans to be there.
"Now that there's a new piece of the puzzle," says Lewandowski, "Now that there's an ongoing investigation and a prosecution, we do intend to petition the immigration board for a release."
Mugging in 2007 started deportation process
After arriving in Canada with his family, Awaleh became a landed immigrant at the age of 14, according to IRB documents. However, he is the only member of his family who didn't go aim to get his Canadian citizenship.
The documents reveal that by the time he was a young man, he began having trouble with the law.
Most charges were for minor offences including drug possession, uttering threats and breaching the conditions of previous sentences.
But in 2007, at a time when his lawyer says his client was high on crack cocaine, Awaleh mugged someone outside a convenience store.
The robbery conviction launched a process to consider his removal from Canada.
Following a hearing in 2008, he received a three-year stay on the deportation order. Lewandowski says Awaleh had become a father, and had a second child on the way.
"I was proud to present to the board the fact that he was holding down two jobs, had cleaned up his life, had numerous letters of support and had built a loving family."
But Awaleh was back before the IRB three years later, following several new charges, including drug possession and uttering threats.
In January 2011, the board concluded: "With regards to his criminality, the appellant minimizes his responsibility for his actions. He believes that his criminality stems from his alcohol and drug abuse but has failed to address his addiction despite having been given numerous chances to do so." It determined the removal order was "well-founded."
Danger to public must be assessed
But deportation back to Somalia is complicated.
"They have to demonstrate that he's a danger to the Canadian public," says Lewandowski, "And that's one of the steps prior to removal, so even if you're branded as serious criminality, if your country of origin is war torn or you're facing risk of death or persecution, then they have to take that additional step and get what's called a "danger opinion."
Former CBSA director Reg Williams says a balance has to be struck between the danger of returning Awaleh and the danger to the Canadian public.
He says getting the danger opinion could take up to two years.
However, the fact he has being kept in custody suggests some process has begun.
"Either they're holding him because they're planning on removing him or they're holding him in order to make that assessment," says Williams.
Fate of returnees to Somalia not tracked
Lewandowski says his client has already given video testimony, so theoretically, he may not have to be in Canada for the case against the police officers to begin.
Williams thinks the SIU charges make for a compelling case to keep him on Canadian soil pending the outcome, and perhaps in the long term, a chance to have the IRB board reconsider the case for removal.
"He has this opportunity now, so its very important that if he can seize this, it may well make the difference."
Williams directly oversaw the removal of people to Somalia, starting in the mid-'90s. He said what happens to them after their return to that country is not tracked by CBSA, but "we've had cases brought to CBSA attention where they've done poorly or gotten involved in activity where they were a victim or been killed once they return."
Awaleh's lawyer also hopes the client he watched grow up takes this chance.
"I suppose quite ironically, this may be the impetus to finally get himself cleaned up," said Lewandowski.
"Despite anything that's happened in the past, no one has ever said anything but that he's an amazing father, his wife still brings the kids to see him, and still encourages contact. His kids love him, he loves his kids."