In making his case before an Ontario judge, lawyer Alan Gold said Const. Babak Andalib-Goortani was a good cop who was trying to do his job.
"This is a case where your honour should reverse the conviction and in doing so, point out that this trial judge never considered the issue of mental state on the part of my client," Gold said.
"A police officer is expected to apply their best judgment at the time, not perfect judgment."
Andalib-Goortani — who sat silently in court throughout Monday's proceedings — was convicted last September of assault with a weapon for using excessive force during the arrest of protester Adam Nobody on June 26, 2010.
He was sentenced to 45 days behind bars, though he was almost immediately granted bail pending an appeal.
He is looking for an acquittal or a new trial, and is also asking, if his conviction can't be quashed, that his sentence be changed to a discharge, suspended or that any custodial sentence be served intermittently.
His lawyer argued that the trial judge failed to consider Andalib-Goortani's mental intentions, erred in finding the officer used "unnecessary force" by applying too strict a standard on his conduct and erred in ruling that the evidence of a police use-of-force trainer was not admissible at trial.
The trial judge lost sight of the context around the tumultuous G20 summit weekend, which saw mass protests and mass arrests take place in Toronto, Andalib-Goortani's lawyer said.
"In judging police conduct, the context matters," Gold said.
The trial judge found Andalib-Goortani hit Nobody several times with his baton while the protester was already on the ground, surrounded by other officers who were in the process of arresting him. Nobody was offering minimal resistance and several other police officers were piled on top of him, she found.
But Gold argued that Andalib-Goortani's swift baton blows were made while Nobody's arrest was still underway and they left "no physical marks" on Nobody.
"No one can accuse my client of going overboard," he said. "This was not a situation where my client had an opportunity for calm reflection."
Gold also pointed out that during the officer's trial, the Crown prosecutor had conceded that Andalib-Goortani was tired, overwhelmed and "appeared fearful" before he "lost it and lashed out."
"Even the Crown is alleging a man in a situation where intention and knowledge would be hard-pressed to grow," Gold said, arguing the trial judge didn't give enough thought to the requirement of mens rea — the intention or knowledge of wrong doing.
The trial judge also said the officer had shown no remorse and noted his name tag and badge weren't visible during the arrest.
Andalib-Goortani's lawyer said his client was in an inhibitive position at the time, "trying to do a difficult job."
"The trial judge improperly used his 'lack of insight' as an aggravating factor," said Gold.
"If a police officer acted in accordance with his training, how can his subjective belief be faulted?...That sentence only makes sense if the judge is simply looking at it objectively."
Crown prosecutor Shawn Porter said the judge had examined Andalib-Goortani's evidence and then rejected it.
"There's no basis of inference that the trial judge did hold the appellant to a standard of perfection," he said. "All the way through the judgment is an awareness of the contextual circumstances."
Porter also argued that the trial judge's sentence was appropriate, saying it "needed to give voice to principles of denunciation and deterrence."
Nobody, who attended Monday's hearing, said he hoped Andalib-Goortani's appeal failed.
"I hope he goes to jail," the 31-year-old said outside court. "If he thinks it's ok to beat civilians up, he shouldn't be a police officer."
Nobody said he suffered a broken nose, a facial fracture and bruised ribs during the arrest.
A decision on Andalib-Goortani's appeal will be delivered at a later date.Suggest a correction