Sask. woman guilty of theft, assault in 2021 FreshCo incident caught on camera

A Saskatoon judge has convicted a woman of theft and assault — rejecting her claim that a loss-prevention officer at the FreshCo grocery store on 33rd Street used unnecessary force when arresting her on April 14, 2021.

Chris Murphy, the lawyer for Annette Custer, applied to have the theft and assault charges thrown out on the grounds of "excessive and gratuitous" violence applied during her arrest by security officer Cameron McMillan.

Provincial court Judge Doug Agnew reached a different conclusion.

"Ms. Custer was under arrest, was continuing to resist, had punched Mr. McMillan in the face, was attempting to escape, had in fact dragged Mr. McMillan to her car with her, had climbed inside and was attempting to insert her key in order to drive off, biting him in the process," Agnew wrote in his decision, which was delivered late last month.

"In those circumstances, the amount of force which Mr. McMillan used verged on being insufficient to accomplish the legal ends of effecting the arrest, detention and handing over of Ms. Custer."

A video of the arrest, posted online by an observer, prompted widespread outrage from Indigenous leaders and others. Custer is an Indigenous woman from the Peter Ballantyne Cree Nation in northern Saskatchewan. 

There were calls from the chief and vice-chief of the Federation of Sovereign Indigenous Nations to have Custer's complaint against the security guard investigated and for police to bring forth charges against the guard.

They also called for a provincewide anti-racism strategy and for mandatory Indigenous studies classes in the school system.

In his decision, Agnew noted that Custer admitted during her trial that she had gone to the grocery intending to steal food. She had hidden a roast and some cheese in her purse.

At her May 2022 trial, Custer said she took the roast and other items because her social assistance totals left her with little money to feed her family or buy gas to drive her child to school.

"She then deliberately left the store having paid for certain items, but not those concealed in her purse: those, she stole," Agnew wrote.

"Ms. Custer was aware of the possibility of there being store security. When she was stopped by Mr. McMillan upon leaving the store with the stolen merchandise, there was no suggestion of surprise on her part."

At one point, both Custer and McMillan ended up wrestling on the pavement. Custer testified during her trial that when McMillan approached her, he didn't identify himself until after he had forced her to the ground. She maintained the force he used was excessive.

But based on the evidence, Agnew disagreed.