An `impulsive act made in a heated moment'

One EPS officer gets absolute discharge, another gets probation in 2020 arrest

An Edmonton police officer convicted of assault for dragging a man from his home during a noise complaint has been handed probation, while his one-time partner has been given the minimum sentence available in Canada.

Det. Marc Chmilar, 45, was sentenced to a conditional discharge Tuesday for the 2020 assault of Cristian Mosquera. Chmilar's co-accused, former EPS officer Steven Minarchi, was handed an absolute discharge.

Nearly 40 supporters — many of them Edmonton Police Service officers — packed the downtown Alberta Court of Justice courtroom to watch the proceedings.

Justice Susan Pepper said the range of sentences the Crown suggested for Chmilar — including up to 90 days in jail — did not fit the crime. She said both accused — as well as other officers — have been adequately deterred by the financial and career penalties suffered since the assault. Saddling either accused with a criminal record was unnecessary, she concluded.

Chmilar and Minarchi attended Mosquera's home on Oct. 3, 2020, after neighbours complained about a noisy party and fights on the lawn. When they arrived, it was largely peaceful outside, although loud music continued to emanate from the home.

Chmilar knocked on the door. Mosquera, then in his 20s, answered the door. An argument ensued. Mosquera told the officers his name but refused to hand over his ID and slammed the door. Chmilar knocked again, this time more forcefully. An angry Mosquera opened the door again, gesturing and swearing.

At that point, Chmilar and Minarchi grabbed Mosquera from the doorway and dragged him down some stairs to the lawn. He was released without charges a few minutes later. He suffered a concussion during the arrest, as well as a split lip, an injury to his cheek and a bruise on his chest. Most of the second interaction was recorded on Mosquera's doorbell camera.

Minarchi and Chmilar were charged in 2021. Minarchi resigned a short time later. Their trial began in July 2022. Justice Barry Nordin found both guilty of assault in November 2023.

Nordin rejected Chmilar's claim that Mosquera's animated speaking made him feel threatened. He was left with the “unfortunate conclusion” that Chmilar simply “wanted to assert authority over someone who was verbally abusing him.” While his actions may have been “understandable” given Mosquera's behaviour, they were “not reasonable,” he said.

Mosquera did not attend Tuesday's sentencing or file a victim impact statement.

After conviction, Minarchi filed a mistrial application, which Pepper dismissed May 6. Chmilar was sentenced first Tuesday, followed by Minarchi.

Crown prosecutor Renato Di Lorenzo argued that based on case law, Chmilar could face a range of sentences, from 90 days in jail to a suspended sentence with house arrest. He cited a number of aggravating factors, including the fact police “breached the sanctity” of Mosquera's home. He also claimed Chmilar was “less than forthright” in his use-of-force report, which mentioned only an injury to Mosquera's finger.

Defence lawyer Nicole Stewart argued for the conditional discharge, which if completed will see Chmilar without a criminal record. More than 100 co-workers and friends wrote letters of support.

Pepper concluded there was nothing ruling out the conditional discharge. She said the assault “appears to be very much out of character for him.”

She declined to conclude Mosquera provoked Chmilar, saying such a finding would suggest he deserved to be assaulted. Nevertheless, “rude and abusive conduct did play a role in what occurred.”

Pepper noted neither officer entered Mosquera's home, nor was there evidence of “gratuitous” violence such as punches or kicks. There was also no evidence either officer planned to hurt Mosquera. The assault was an “impulsive act made in a heated moment.”

Chmilar has been ordered to complete 12 months of probation, including 40 hours of community service. He must also make a $500 donation to charity.

According to Legal Aid Ontario, an absolute discharge is the “lowest-level adult sentence that an offender can get.”

“A finding of guilt is made but no conviction is registered, and they are not given any conditions to follow (i.e. a probation order). The offender is finished with their case.”