EDITORIALS, LOCAL NEWS

JUDGE SPANKS COPS – Champions Rights of “Second Class Citizens”

3D Judges Gavel

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;

Screen Shot 2014-07-08 at 11.04.14 AMThe case was not exactly complex.

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;

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;

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)

The Ruling;

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.

Analysis;

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.

The WPS Public Information Office recently released information regarding multiple stabbings that have occurred in the City of Winnipeg since the Canada Day long weekend.

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!

RELATED LINK:

Winnipeg Free Press – James Turner “Judge Blasts Officers – Arbitrary Detention”

FACTOID:

Judge Devine was appointed to the Provincial Court on July 23, 2012.

R V GAUVIN – Case Decision

Provincial Court Decision – R v Gauvin

THE LAW:

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.

Common intention

(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.

18 Comments

  1. Give her a vacation good job well done!

  2. Put the judge in a car in the north end for a weekend

  3. My compliments to you for having the brain power to know what another “envisions”.

    My perceptions are that the one of the males was in possession of an item that was in plain view, and could most likely have been used as a weapon or could be considered a form of item that may be dangerous to the public peace, regardless of what area these two males were in. Many are murdered in the City of Winnipeg with similar items.

    I have read many books and have a high degree of common sense, which obviously lacks in your pompous world.

    Hopefully you are never accosted by these types of individuals and have to summon the police for help.

  4. I agree with you about the way the system treats victims. I don’t know if this is still the case but, at one time, there was some sort of compensation scheme called Criminal Injuries (CI). Sounds great? However, it is/was administered through the Worker’s Compensation Board (WCB).

    Now, anyone who has had the sad misfortune of dealing with the WCB knows that it’s a whole world of hurt. It’s an insurance company for employers and they are programmed to find any reason that they can to deny your claim. I know that they would dispute that and tell me that 80% of their claimants report satisfaction, but 80% of their claims are cuts and stubbed toes that only require a few days to a couple of weeks off of work. As soon as a person goes back to work, they cut a check. Anyone with a more serious injury can expect to be starved until they cave.

    So, the disposition of the criminal case is one issue for sure. But, I’d argue that forcing victims of crime to be at the mercy of the wolves in sheep’s clothing at the WCB seems particularly perverse.

    Years ago, a good friend of mine was jumped in a parking lot and hurt very badly. After several surgeries and a long recovery, he filed a claim with CI. They jerked him around for almost two years until he finally hired a (non-legal) representative. His case worker sent his rep a copy of the act and said “nothing in this document applies to your client.” After using up the better part of a highlighter pen, the rep sent it back showing the numerous parts of the act that did, in fact, apply to his client. The checks started coming shortly after but my friend did have to give up 20% to the rep.

    So, if we want to champion victim’s rights and compensation, then I’d suggest that a good step would be to take the administration of it out of the hands of the WCB.

    And thank you for your thoughtful replies and for being patient with my rants. 🙂

  5. I don’t mind posting it and I appreciate the thought….thank you!

  6. Mateo…

    I don’t think anyone could reasonably argue that Canadian Justice has evolved to be almost completely offender driven…

    Many of our “new age” Judges have evolved to become champions of offenders and have found new and imaginative ways to help them skirt the law. They undermine mandatory minimum sentences by calling them “cruel and unusual punishment” and have invented terms such as “reduced moral blameworthiness” to reduce criminal culpability.

    The go as far as to suggest offenders are not “free actors”, another invented term, as a way or reducing their responsibility if they had bad childhoods or have any mental health issues.

    Meanwhile, the rights of victims have become almost invisible.

    And you are correct regarding what I meant…..thank you for clarifying for me…..

  7. Kurt;

    I appreciate your observations and agree….

    Law Enforcement Officer’s have played a significant role in eroding their collective credibility…..

    It’s unfortunate…

  8. I agree…

    Cops need to put down the technology and be aware of their surroundings and Judges might benefit from a little dose of reality via a ride a long…

    Thank you for commenting…

  9. Kurt;

    You’re making me work to hard but because you posted such a thoughtful comment I will do my best to respond.

    First of all, no one mentioned race in this incident. In this case its a non issue because I know the veteran Officer quite well and his is of Aboriginal decent.

    I meant what I said when I indicated this was not a case of geographical profiling. Any cop worth his or her salt would be stopping two guys walking down the street in any neighbourhood when one of them is carrying a potential weapon. If you were walking down the street at 3 am with an axe you can be sure I would be stopping you and having a discussion with you, and yes, you may be pat search for Officer safety reasons in that scenario.

    If you told me the bonfire story then my reason for concern would be satisfied and you would be on your way.

    The fact that the Officers conducted pat downs for safety concerns was undoubtedly influenced by the neighbourhood, a high crime, gang infested area. That doesn’t mean they were engaging in “ignorant or biased” Policing. That means they are aware of the realities in the area they are tasked to patrol.

    Your pencil analogy doesn’t really merit comment.

    Your suggestion that I would get a pass because they would know me has no basis in reality. The WPS has over 1,400 Police Officers working in the City of Winnipeg. I know a very small percentage of them. There have probably been close to 200 Police Officers hired since I left the Service. In fact, a few weeks ago I was taking crime scene photos at the Opera Night Club murder and was confronted by young Officers who were trying to protect the crime scene. They had no idea who I was even after they asked for my name.

    The cases you mention as a basis for fearing the Police are very complex and convoluted. I won’t retry them here but suffice it to say many factors go into a wrongful conviction and the blame simply can’t be laid squarely at the feet of the Police. Don’t forget, a wrongful conviction is much different than a finding of innocence.

    Your issues regarding firearms is a whole other can of worms.

    I do agree with your final conclusion, that even law abiding citizens have to carefully balance their level of cooperation while exercising their rights to protect themselves form false or bogus allegations.

    Thank you for commenting.

  10. I shouldn’t have said “more rights”, I should have said that this judge has placed a higher value on the rights of the offender rather than that of the potential innocent victim (s). This seems to be the way our “justice system” handles cases these days. Judges are doing the defence a favour by constantly making excuses for the offender, removing any accountability or consequences. The judges inability to see that the proactive work done by the officers, and the potential that a crime was thwarted is disturbing. I would hope that a person in the position of using above average reasoning and judgment could plainly see this.
    On a side note, from your earlier post, I believe James meant that he doesn’t fear being stopped and searched by police in any Canadian city, not just Winnipeg. And I agree with that statement.

  11. I don’t know if you’ll want to post this but, speaking of credibility hit, I think that the WPS managment took a big credibility hit when they forced you out.

    🙂

  12. I like your ride along idea and I think that all officers of the court (judges and lawyers, both crown and defense) should be required to do so.

    I don’t thinks it’s the case that judges feel that criminals have more rights…it’s that ALL of us equally have rights and we really only have the courts to protect those rights for us. Unfortunately, it’s criminals that are often the test cases in court.

    So, am I glad that, say, a gang banger caught with illegal firearms gets off because his rights were violated? No, I’m not. Not at all. It blows mammoth sized chunks. But, I am glad to have affirmed my right to not be illegally searched and charged for, say, transporting a unloaded NR shotgun without a trigger lock, when the regulations clearly state that unloaded is the only requirement for transport and that a trigger lock is only required for storage and only if it’s not already locked in a case of some sort (actual court case, can send you a link).

    Having said all that, I do understand how frustrating policing can be and especially in the inner city. It’s also very unfortunate that the word of a police officer carries less weight than it once did. However, I would argue that much of the credibility hit has been brought on them by themselves. I remember being concerned by a few cases over 10 years ago where officers had clearly tried to pull a fast one and, in open court, were called liars by the judge. I remember remarking that it’s really not a good thing and if it keeps up, their collective credibility will erode over time.

    Sadly, I believe that it is happening. In fact, I’d argue that those bozos at YVR a few years back levelled a huge collective blow to LEOs credibility across the country. It sucks, and I don’t know what the answer is.

  13. Let’s face it, not all police do excellent work 100% of the time, just as the rest of the working masses. I suppose that’s part of what differentiates humans from robots. Lately, I’ve noticed more and more young cops sitting in the jump seat fully immersed in their i phone rather than observing the world around them. Though I am a supporter of police, this type of behavior is unacceptable.
    However, when police are being proactive in their duties (err… the opposite of how fire fighters spend their shift), they can’t even rely on an ally in the justice system. This judge, and many like her, feels that criminals have more rights than victims. She fails to see the reality of what occurs on the streets after dark. Perhaps she should go for a ride-along on a hot summer “cheque night” in the north end.

  14. I really want to agree with you, I really do. However, you say that the officers would have done the same thing regardless of the neighbourhood and I’m not sure if that’s true…unless you mean that the police would have responded the same in any neighbourhood to an aboriginal person walking down the street with a stick.

    I’m about as white as you can get and I live in NK. Let’s say that I’m going down-the-street to my neighbour’s house for a night of bonfire and beers and let’s say that he’s left his axe at the lake and asked for me to bring mine. Fast forward to 3am or later when I’m walking home, carrying an axe. Should I be subject to detention and search? I don’t think so. Anything can be used as a weapon, including a pencil or a house key. Should anyone walking down the street at 4am with a pencil in their pocket be subject to a search?

    If a police car happened to drive past it’s certainly likely that they’d stop and say something like “Yo dude, why are you carrying an axe?” and me say something like “I was down the street for a bonfire, they needed to borrow it…this is my house (points)”. I think that’s about as far as it would go. They may ask for a drivers licence and I’d certainly put the axe down while talking to them. I highly doubt that they’d detain and search me. However, if I were aboriginal in appearance, then I suspect that my experience would be very different.

    Also, I have to take issue with this statement:

    “If the Police do stop and search me I have nothing to fear because, like the vast majority of peace loving Canadians, I choose to live on the right side of the law.”

    Let’s be honest James…if it were you who was stopped, then they’d know who you are and you’d have no problems. This may be off topic, but the notion that, if one has nothing to hide then one has nothing to fear, is naive at best. David Milgaard, James Driskell, Guy Paul Morin, and Thomas Sophonow all felt that they had nothing to hide and therefore nothing to fear. For me, I’m a licensed firearms owner and am well versed in the regulations for storage, transportation and display. There have been an embarrassingly high number of cases in Canada of people that had nothing to hide and therefore nothing to fear who, in the spirit of cooperation, consented to a search, only to be wrongly arrested and charged with bogus violations, and have their property seized and locked up to rust in a dank police storage room. A year or more of being banned from their hobby and $10,000+ in lawyer fees later the charges, that were based on an officer’s gross ignorance of the aforementioned regulations, are dropped and the firearms now worthless.

    A law abiding citizen has to carefully balance being cooperative with knowing and exercising their rights to protect themselves from false and bogus allegations from what I believe to be a very small minority of police officers who don’t know the law and are too arrogant to look it up.

  15. No one suggested that two men walking down the street in a crime ridden neighbourhood were criminals….

    You mysteriously left out the fact that one of them was carrying what could easily be perceived as a weapon.

    I don’t carry sticks on City streets at 4:20 am nor do I live in fear of the Police State….

    If the Police do stop and search me I have nothing to fear because, like the vast majority of peace loving Canadians, I choose to live on the right side of the law.

    My favourite book – the Criminal Code of Canada.

    Thanks for commenting.

  16. The other commenters obviously envision a certain ‘typical’ criminal and outright defend police for any tactics they can muster.

    Two men walking down the street in a crime ridden neighbourhood does not mean they are criminals. It’s absolutely biased. The judge acted on the written law and made a well thought out decision.

    I hope you don’t find yourself on the wrong end of a police search and then have a judge hastily seal your fate. I’m sure you would be singing a different tune then. Go read a book.

  17. Well all I can say is this judge is a complete ass and not of the donkey kind .

  18. Another less than stellar moronic decision made by a “ignorant or biased” Judge, regarding two fine officers trying to keep our community safe.

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