Criminal assault charges against two Toronto Police officers have been dropped due to a lack of evidence, even though Ontario’s police oversight body was able to conclude the officers made an unlawful arrest and used excessive force.

Senior Crown prosecutor John Pearson told a Scarborough court last week there is no reasonable prospect of convicting constables Kevin Drake and Dorna Kennedy and that it would not be in the public interest to continue.

“There isn’t any evidence to obtain a conviction here,” Pearson said.

“That’s not true!” Peter Benevides cried out from the public gallery.

Benevides, the victim of the alleged assault, had brought criminal charges by swearing his testimony before a justice of the peace. He later told the Star that he could not sit silent while the charges were dropped at the first hearing.

“My civil rights have been usurped. My human rights have been trampled all over,” he told the packed courtroom. “Their overseeing body found the evidence that they needed to arrive at those charges, and yet we come here today and I’m wiped off the board as if nothing ever happened.”

In a letter to Benevides, Pearson explained that he could not proceed without a video of the arrest shot by a bystander. But Benevides says he doesn’t have the video and promised not to divulge the name of the person who shot it to the police.

“I don’t see the need to insist on a video,” Benevides told the court. “This gentleman and his partner assaulted me and there is a (security camera) video that was produced and the (Office of the Independent Police Review Board) has possession of.”

In September 2014, Benevides was violently arrested for refusing to show ID. During the arrest, Benevides was taken to the ground and his head was smacked to the pavement, leaving a bloody gash and a concussion.

He made a complaint to the OIPRD, which investigated and concluded — without viewing the bystander video — that there was enough evidence substantiate the allegations. Police Act charges of unlawful exercise of authority are still pending against Drake and Kennedy, though their lawyer has filed a motion to have the charges dismissed.

“Council for the police are trying to abort the hearing at an early stage, based on what they consider to be some procedural irregularity and abuse,” said lawyer and Osgoode Law School professor Alan Young, who has taken on Benevides’ case pro bono.

“It would be unfortunate if a claim that has been substantiated by the OIPRD simply gets dismissed,” Young said. “I’m here to make sure that the right thing is done and this hearing will be completed.”