In what's seen as an important test of police use of pepper spray, a young man sprayed in the eyes at a protest rally is suing a veteran constable and the Toronto Police Services Board for $10,000 damages.

The case is being heard in Small Claims Court, which has a $10,000 ceiling for awards, because 22-year-old claimant Yehuda Nestel, of Guelph, wanted to avoid the cost of a regular civil suit, his lawyer, Peter Rosenthal, said.

Court saw a CBC-TV news video of the incident on Sept. 12, 2004 in which neo-Nazi backers of Holocaust denier Ernst Zundel, since deported to Germany, clashed with Anti-Racist Action members and others, including Nestel.

The demonstration began outside the Metro West Detention Centre and moved to The Queensway.

The CBC video shows Const. Joseph McMahon helping a second officer pin a protester against a cruiser as knots of demonstrators gather around, loudly taunting police and each another.

McMahon testified the situation had escalated to "a near-riot."

The video shows McMahon calling for backup on the radio and holding a can of pepper spray.

Nestel is seen coming up behind the two officers as they yell several times for people to "move back" and Nestel shouts at the officers, "He's not a threat to you."

Nestel told the court he felt he was within his rights to question the police use of force to detain the protester.

Police witnesses agreed that it is legal for onlookers to question police arrest tactics, provided they don't interfere.

However, McMahon told court he viewed Nestel as a threat because he was disregarding the warning to move back from the cruiser.

On the video, Nestel suddenly moves within a few feet of the cruiser.

McMahon then lunges at Nestel, spraying his face.

Nestel's eyes swelled shut and he said the pain lasted for a day.

He was arrested for obstructing an officer and other charges.

All charges were later withdrawn. The judge, Justice Donald Godfrey, deferred his decision.

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