Non-binary firefighter told ‘bald-faced lies’ while under oath: defence

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A defence lawyer says a rookie non-binary firefighter, who alleges they were a victim of a hate-motivated assault, told “bald-faced lies” while under oath.

Ash Weaver testified Eric Einagel, then a fellow firefighter, grabbed their wrists and “slammed” them into the kitchen counter before Einagel’s hands went for their neck, picking up and shaking Weaver as he choked them on Sept. 14, 2022, at a Barrhaven fire hall.

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Other witnesses characterized the alleged assault as a mutual fight over dishwashing duty, with the two exchanging hip-checks and shoves.

During closing arguments for the judge-alone trial before Justice Mitchell Hoffman, Einagel’s lawyer, Dominic Lamb, said Weaver lied under oath when they were asked multiple times if they had been choked before, and gave conflicting answers.

“How do you reconcile that? How does anybody?” Lamb said. “This is the sign of somebody who has such disrespect for the oath, for criminal justice, that they just say whatever they want.”

Einagel faces charges of assault causing bodily harm in choking Weaver, as well as harassment. The Crown alleges Einagel threatened Weaver and caused them to fear for their safety. Capt. Gregory Wright is also accused of failing to take reasonable steps to prevent bodily harm against Weaver, as well as disciplining Weaver or threatening to do so and adversely affecting their employment with the ultimate goal of stopping Weaver from going to police about the alleged assault.

Einagel, for his part, testified that during the altercation, he stuck his arm out to block a football-like tackle from Weaver. Any contact he might have made with Weaver’s neck was “incidental, an accident,” his lawyer told the court on Thursday.

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Lamb zeroed in on times Weaver evaded questions, refused entirely to answer, or gave non-sequitur responses during their three days on the witness stand, which, if they had co-operated, Lamb said, shouldn’t have taken longer than a few hours.

“The witness has zero problem telling bald-faced lies, under oath, in the Ontario Court of Justice,” Lamb said. “In and of itself, you have to reject the evidence outright, when they’re so bold with their ability to just say whatever comes to mind.”

The judge agreed that the time Weaver took to answer questions was “the most extreme case of a witness pausing repeatedly, for lengthy periods of time,” that he’d experienced in his 35 years in the courts.

Assistant Crown prosecutor Sonia Beauchamp said the pauses in Weaver’s response were indicative of psychological harm, “not only from this event, but from other experiences this individual has faced.”

Weaver had testified that, during their time at drill school, someone had placed a threatening note in their equipment that contained an anti-gay slur, which Beauchamp said exemplified the “discrimination and prejudice that this vulnerable segment of society faces, including in the workplace.”

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Hoffman also noted the Supreme Court of Canada has recognized the mistreatment of equity-denied groups, including transgender and non-binary people, in the court system and in society broadly.

“That absolutely is a very significant factor I take into account when assessing that,” he said, though he noted Weaver’s pauses were “significantly” longer when they were cross-examined by the defence.

The defence argues the Crown didn’t meet the burden of proof that Einagel assaulted Weaver, nor that the assault was hate-motivated. The Crown says the trial “starts and ends” with the testimony of Megan Hills, a fellow firefighter who testified Einagel’s right hand was on Weaver’s throat for only a second, but he didn’t shake, lift or slam Weaver. 

Beauchamp says Hills’s testimony is “proof beyond reasonable doubt” that Einagel’s hand was deliberately around Weaver’s throat, as Hills was directly next to Einagel and Weaver when the alleged assault happened. Hills was “unequivocal” in her testimony that Einagel’s hand was around Weaver’s neck, though only for a second.

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“One’s hand does not just happen to be around someone’s neck in this manner, without deliberate intent to do so, and intent to place force on the neck,” Beauchamp said. “When you look at that constellation of circumstances, leading into choking, Einagel was angry. It’s no coincidence that the anger boils over at that point, and that’s when the choking happens.”

The Crown is arguing that the assault against Weaver was hate-motivated. The court saw that Einagel had a “pride” sticker on his vehicle, and heard testimony from a former transgender colleague and his lesbian sister-in-law, both of whom described Einagel as accepting and welcoming of the LGBTQ+ community.

“That community is not a monolith. You can be supportive of some people, but not others,” Beauchamp said, adding Einagel had “space and opportunity” to say hateful phrases to Weaver, which is why no independent witnesses could back it up.

As for Wright, captain of the fire station at the time of the altercation, his lawyers argue he never discouraged Weaver from reporting to police, zeroing in on inconsistencies in testimony between Wright and Weaver. Weaver, for example, testified that later in the shift, Wright ordered them to talk privately in a supply closet, where he closed the door and turned off the light.

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“He obviously denied he ordered them in there, and threatening their career, and life,” Wright’s lawyer Joshua Clarke said. “And Ash Weaver’s statement that they feared for their life…if it’s not dishonesty, it’s fantastical in exaggeration. Which amounts to the same thing, carelessness with the truth.”

Wright furthermore testified that following the altercation, he asked if Weaver wanted to report it to higher-ups in Ottawa Fire Services. The Crown, though, rebutted that Wright didn’t report the altercation to higher-ups until Weaver failed to show up to their next shift a few days later. 

Wright’s threat, Beauchamp said, was “all-encompassing … you don’t report your brothers and sisters.” That “necessarily” includes not reporting to police, she said, and “given Mr. Wright knew that was a physical altercation, that is the arena of the police.”

The Crown concluded it was the “culture” within the Ottawa Fire Service that laid the groundwork for the entire incident to happen. 

“It is a culture that does not just condone, but encourages and teaches their firefighters that physical fights are required to be part of the team,” Beauchamp said. “Perhaps now there will be organizational, cultural change in the Ottawa Fire Service.”

Hoffman says he expects to reach a decision on the case by the end of summer.

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