If you’re a crime buff and you don’t follow Winnipeg Free Press Crime Reporter James Turner on Twitter you should.
I’ve said it before but it bears repeating, Turner has a special talent when it comes to spotting hot button topics.
He’s done it again;
On May 3, 2013 at 4:20 am, a veteran WPS Officer and his rookie partner were patrolling the North End when they spotted two men walking down the sidewalk on Charles Ave near Alfred Street. One of the men was carrying a 2′ to 3′ foot long 3/4″ thick stick. The men were clearly together as they were walking shoulder to shoulder and were engaged in a conversation.
Why would anyone be walking down the street in possession of something that could clearly be used as a deadly weapon?
That’s a question any cop deserving of his salary should be obligated to find out.
In this case, that’s exactly what happened, the Police Officers decided to investigate and stopped their cruiser car.
The veteran Officer testified he got out of the cruiser and told the male with the stick to drop the weapon. He advised the men he was investigating a weapons call and told both men to show him their hands. The men complied and cooperated with the Police. At this point both men were placed under investigative detention and subjected to a pat down search.
(For clarification, the Officers were not responding to a dispatched call. The incident is classified as an “on view” event or “self-generated stop.” In another word, “proactive policing.”)
The Officers indicated the unarmed man, who was identified as Daniel Gauvin, was searched for safety reasons to determine if he was in possession of any weapons.
As a result of the search, Gauvin was found in possession of fold and lock knife, with the blade in the open position, and a small amount of methamphetamine and marihuana. He was arrested and subsequently charged with carrying a concealed weapon and two counts of possession of illegal drugs.
The man with the stick was released with no charges after indicating he was only using it to rummage through garbage bins.
Gauvin plead not guilty and took the case to trial on March 12, 2014.
The Defense alleged the Police did not have a legal basis to detain Gauvin and therefore breached his Section 9 Charter Rights that protect him from arbitrary detention. The Defence further alleged the search of Gauvin constituted a breach of his Section 8 Charter Rights that protect him from unreasonable search and seizure. Additional arguments were raised suggesting Gauvin was not properly advised of his reason for detention and not properly afforded his right to counsel.
The Crown argued the Police had grounds for detention and therefore no case could be made for unreasonable search and seizure. The Crown asserted the searches on the street were conducted for Officer Safety reasons and no breaches of Gauvin’s Charter Rights occurred. The Crown further argued that even if the Court found one or more breaches occurred, the evidence should still not be excluded pursuant to case-law established by the Supreme Court of Canada. (Grant)
Provincial Court Judge Cynthia Devine heard the evidence and sharply criticized the Police for the manner in which they conducted themselves during the investigation.
“The police conduct was very problematic, demonstrating a pattern of illegally detaining and searching individuals in the North End of Winnipeg or individuals on the basis of ‘guilt by association,’” she wrote.
She went further;
“The breaches were very concerning in this case, as they were motivated by ignorance of charter law, and bias,” she said.
She then suggested it was better to exclude the evidence and not condone what she categorized as, “A pattern of biased or ignorant Policing in the North End of Winnipeg.”
Devine ruled the Police violated Gauvin’s Section 8, 9, 10(a) and 10(b) Charter Rights. As a result, she excluded the knife, methamphetamine and marihuana as evidence in the case. The exclusion of the evidence meant the Crown had no case upon which they could proceed.
On the surface the Gauvin case appears to be fairly straightforward.
Police Officers out on patrol in the early morning hours taking care of the streets. They see a couple of guys walking down the sidewalk at 4:20 am in a crime ridden neighbourhood and decide to stop them when they observe one of the men is carrying a large stick that could easily be used as a weapon.
The men were walking shoulder to shoulder and were engaged in a conversation. They were obviously together but that didn’t dissuade Judge Devine from criticizing the Police for not questioning them to determine the obvious.
The Police placed the men under investigative detention and searched them for Officer safety purposes.
Police subsequently located the knife and drugs on Gauvin.
Simply put, Judge Devine didn’t buy the Police evidence that the search was done for Officer safety purposes. She writes, “His belief and his actions are consistent with performing an arrest and search incident to arrest for weapons offences. This was a de facto arrest of both men – without grounds for either detention or arrest.”
The suggestion the Police had no grounds for detention is incredulous.
Two men walking down the street at 4:20 am and one of them is armed with a potentially deadly weapon. If that was your neighbourhood would you not want the Police to stop the men and have a discussion with them regarding their intentions?
The Police were completely justified in stopping the men and placing them under investigative detention.
A large stick can be used for many things, including;
- deadly assaults
- gang fights
- break & enters
- breaking windows
- damaging vehicles and personal property
(These are all common crimes that occur in the area the Officers were patrolling.)
With both men being clearly together the Police were correct to assume they may have had a common purpose or common intention regarding the possession of the weapon. Investigative detention is required to determine if there was a common purpose and what that common purpose might be. Police Officer safety dictates that both men had to be pat searched to ensure they were not in possession of any further weapons while the field interview took place.
As it turned out, the Police did find a deadly weapon in Gauvin’s pocket, an easily accessible fold and lock knife with the blade extended.
Did that search really constitute an unreasonable search and seizure?
Does Judge Devine have any idea of how long it may have taken Gauvin to remove that knife from his pocket and stick it in the neck of one of the Police Officers?
That kind of edged weapon attack can take mere seconds.
If Judge Divine didn’t know it, edged weapons are a serious problem in the City of Winnipeg.
The WPS Homicide Unit has investigated a total of eight (8) killings this year that involved the use of an edged weapon.
There’s little Police Officer’s can do when a Provincial Court Judge has little or no understanding regarding the real dangers that exist for Police Officers on the streets of our City.
The fact is, people who arm themselves by carrying knives present a serious danger to every law-abiding citizen living in the City of Winnipeg. That danger is exponentially increased when the people who choose to arm themselves are also substance abusers.
It’s disheartening the only condemnation Judge Devine expressed in this case was directed at the Police Officers who were trying to keep the community they patrolled safe.
Police Officer’s can learn much from Devine’s written decision.
If they didn’t already know it, Police Officers should know the word of a Law Enforcement Officer no longer carries the weight it once did in a Court of Law.
As a result, Officers must put much more emphasis on street tactics, trial preparation and articulation if they expect to leave a Court Room with a criminal conviction. Police Officers can’t blame the Judge or Crown if they don’t use proper street tactics, properly prepare for a Court case or provide clear, cogent articulation of their actions when they give their evidence.
I don’t lay all the blame at Judge Devine’s feet.
I’m sure if you asked the Officers at the center of the controversy if they were things they could have done better they would agree. At the very least, stronger articulation during the presentation of their evidence at the trial “may” have made a difference.
Having said that, I do blame Judge Devine for disparaging the Police Officers and suggesting they engaged in “ignorant or biased” Policing.
In her written decision Judge Devine suggests, “The impact of this type of police behavior breeds distrust, fear and cynicism among a population of the City that have been historically been treated like second-class citizens.”
“Historically treated like second class citizens.”
I have to ask, “In what direction is that accusatory finger-pointing?”
Is it the Police Service Judge Devine condemns with the broad stroke of her social injustice brush?
Is there a study, case-law or an accepted principle that suggests the Police in Winnipeg treat North Enders like second class citizens?
The Police in Winnipeg have done a tremendous amount of outreach work in the North End of the City. That outreach includes;
- Engaging the Aboriginal Community in the annual North End Spring Feasts at the Indian & Metis Friendship Centre (2014 – 18th Anniversary)
- Participation in the North End Hockey Programs
- Police Officer assignments to North End Schools as Resource Officers
- Establishing the North End Community Cadet Corps
- Participation in North End Neighbourhood Watch
- Participation in North End Youth programs
- Initiating North End Anti-Crime Strategies (Block by Block)
- Partnering with North End Social Services & Agencies
Judges are duty bound to deal with the facts and not be influenced by emotion, personal opinion, flawed perceptions or conjecture.
Judge Divine made much hay with the Police Officer’s testimony that the North End is a high crime area. The Officer’s clearly believed the fact the men were walking in a high crime area supported their actions and justification for stopping them. The fact the location was a high crime area is indisputably relevant. Yet Judge Devine put a villainous spin on the Officer’s testimony and suggested they were participating in “biased and ignorant” Policing.
Her suggestion the Police Officers were participating in “geographical profiling” was patently unfair.
In truth, I’m highly confident the Officer’s would have done the same thing, under the same circumstances in any neighbourhood across the entire City of Winnipeg.
Unfortunately, no one appears to have asked the question.
Ultimately, I really don’t think it was the Police Officers who were ignorant and biased in this case!
Judge Devine was appointed to the Provincial Court on July 23, 2012.
R V GAUVIN – Case Decision
Criminal Code of Canada
Parties to offence
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.